text:
    Hogan v. Burneson, Appellant.

      Deeds — Street—Dedication—Call for boundary.

    1. A call in a deed for a street as one of the boundaries of the land conveyed, is not sufficient to establish a dedication of the street to public use, where at the date of the deed no street in point of fact existed either by marks on the ground, or upon any paper, plot or plan or other deed made by the grantors, or for which they were responsible, and where there is no evidence that any such street had ever been used by the public, or accepted as a street by the public authorities.
    2. The grantors in a deed may covenant that a forty-foot strip of land contiguous to the land conveyed shall remain open for the benefit of the grantee, although such covenant does not amount to a dedication of the strip as a street for public use,
    3. Where, in such a case, a subsequent grantee of the contiguous land fences in a portion of the forty-foot strip and holds it adversely for more-than forty years, a successor in title to the grantee of the other land who takes his title after the expiration of the forty years and with full knowledge of the improvements and fences on the strip, has no standing to claim any rights in the strip either as a street or otherwise.
    4. Where a grantor in a deed refers to a forty-foot street as a boundary, but no street exists at the time either by dedication or by plan of lots, or otherwise, and long afterwards in an action of trespass the question arises as to whether such a street in fact existed, it is reversible error to introduce in evidence a plan of lots, showing such a street, where it appears that the plan was not made until years after the deed, and that the grantors in the deed were in no wise responsible for it, and had never adopted or ratified it.
    Argued May 10, 1910.
    Appeal, No. 150, April T., 1910, by defendant, from judgment of C. P. Beaver Co., March T., 1908, No. 325, on verdict for plaintiff in case of Thomas C. Hogan v. Robert Burneson.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for the obstruction of an alleged street. Before Holt, P. J.
    The ■ facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for six and one-quarter cents. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant; (2) in overruling motion for judgment n. o. v. and (3) in overruling objections to the admission in evidence of the Mendenhall plan of lots.

      W. A. McConnell, with him J. F. Reed, for appellant.—
    The right of the grantees was a private right, which they could lose just the same as any other right of twenty-one years’ adverse user and denial of right by the grantors or their successor in title: Spackman v. Steidel, 88 Pa. 453; Lindeman v. Lindsey, 69 Pa. 93; Bombaugh v. Miller, 82 Pa. 203; Erb v. Brown, 69 Pa. 216.
    Not having any claim then under the deed, whatever right plaintiff has he must acquire as one of the public. But the public can have no right: because there was no acceptance by the municipal authorities of the street before it was fenced up by the grantor: Com. v. Llewellyn, 14 P a. Superior Ct. 214; In re Opening of Brooklyn Street, 118 Pa. 640; Quicksall v. Phila., 177 Pa. 301.
    October 10, 1910:
    Because there was not and could not be any adverse user by the public for twenty-one years of this street, as such, for it was fenced up by the grantor in 1859, and the right of the public could not become complete in less than twenty-one years, for the grantor did nothing, such as moving his fence back, etc., within that twenty-one years.

      James L. Hogan, of Buchanan & Hogan, for appellee.—
    Deeds recognizing an open street by one having land bordering upon it, are competent evidence of the dedication of said street to public use: Darlington v. Com., 41 Pa. 63; Barnes v. R. R. Co., 27 Pa. Superior Ct. 84; Flersheim v. Baltimore, 85 Md. 489; Palmer v. East River Gas Co., 101 N. Y. Supp. 347.
    There was sufficient evidence of use by the public: Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; Com. v. Shoemaker, 14 Pa. Superior Ct. 194; Com. v. Moorehead, 118 Pa. 344; City of Waterloo v. Mill Co., 72 Iowa, 437; Guthrie v. Town of New Haven, 31 Conn. 308; Vorhes v. Incorporated Town of Ackley, 127 Iowa, 658; Simmons v. Cornell, 1 R. I. 519; London & San Francisco Bank v. Oakland, 90 Fed. Repr. 691; Woodruff v. Mining Co., 18 Fed. Repr. 753.
   Opinion by

Morrison, J.,

This is an action of trespass growing out of the obstruction of an alleged public street in the borough of Bridge-water.

By deed of February 9, 1836, Archibald, David-and Andrew Stewart acquired a strip of land sixty-seven feet wide and 239 feet long, being part of out lot No. 23 in the plan of out lots of the town of Beaver. This out lot contained eight acres and forty-eight perches of land. By a deed of March 31, 1840, the Stewarts conveyed fifty-six feet of the eastern end of said strip of land to. the Methodist Episcopal Church of Bridgewater. In this deed the part of out lot No. 23 conveyed was described as bounded on the west by a forty-foot street. The exact language used in the deed is this: “Commencing at the corner of Otter and a forty-foot street on the west, and running along said forty-foot street sixty seven — to the line of a lot belonging to John Muller; thence along the line of said lot fifty six feet to the line of a lot belonging to Rachael Smith on the east; thence along the line of said sixty seven feet to Otter street on the south; thence along Otter street fifty six feet to a forty-foot street, the place of beginning.”

The first inquiry naturally arising is, Was there a dedication by said deed of a forty-foot street to a public use, and if so, was such dedication accepted by the public so that the said forty-foot strip of the grantors’ land became a public street? Upon the question of dedication there is practically no other evidence than the contents of said deed. There is no evidence that the Stewarts ever made, adopted, ratified, used or referred to any plot or plan of lots showing such a street. Nor is there any evidence that they referred to such a street in any other conveyance, nor is there evidence that such a street was ever laid out on the ground or accepted or adopted by any official act of the public authorities.

An examination of the authorities leads us to the conclusion that the deed from the Stewarts to the Methodist Episcopal Church, without more, was insufficient to establish a dedication of said forty-foot strip of the grantors’ land to a public use. Whatever the rule may be in other jurisdictions, we understand the authorities in this state to require for a dedication more than a reference, in a single deed, to a street which in point of fact then neither existed by marks on the ground nor upon any paper, plot or plan for which the grantors were responsible. “The rule that, where a public street or highway is called for as a boundary or monument in a deed, title passes to the grantee to the middle of the highway in the absence of a reservation or restriction expressed or necessarily implied, applies where the street or highway referred to has been opened or adopted by the law of the municipality, or the deed recognizes it as an existing highway:” Syllabus of Bliem v. Daubenspreck et al., 169 Pa. 282.

The authorities upon which we rely to sustain the proposition that there was not sufficient evidence of dedication to a public use, in the present case, are the following: Com. v. Shoemaker, 14 Pa. Superior Ct. 194; that case in a well-considered opinion by our Brother W. D. Porter establishes that a sale of a large number of lots by conveyances which call for a frontage upon a certain street amounts to a dedication as between the vendor and his successors in title and all the vendees: Darlington v. Com., 41 Pa. 63; Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; Ferguson’s App., 117 Pa. 426; Com. v. Moorehead, 118 Pa. 344; Dobson v. Hohenadel, 148 Pa. 367; Quicksall et al. v. Philadelphia, 177 Pa. 301; 13 Cyc. 463.

The plaintiff’s counsel cites and seems to rely with confidence upon. Barnes v. Railroad Co., 27 Pa. Superior Ct. 84, for the position that the deed from the Stewarts to the Methodist Episcopal Church dedicated the forty-foot strip of land as a public street. At first blush the opinion in that case, by our late Brother Smith, would seem to go to that extent, but upon considering that opinion and the cases therein cited, we feel warranted in holding that it was not meant to carry the doctrine of dedication further than is indicated in the cases therein cited, and others which we have above cited. We, therefore, conclude that the learned court below erred in holding that there was sufficient evidence of a dedication of the said forty-foot strip of land to a public use.

But if we are wrong in this the authorities already cited clearly hold that to constitute a public street it must not only be dedicated but the public must accept and adopt it as a public street before it will be stamped as such. In our opinion there was not sufficient evidence to carry the question to the jury of the acceptance of said land as a public street. The printed testimony fails to show any resolution or official action of the public authorities accepting said street; fails to show that the street was ever marked upon the ground and worked or repaired by authority of the municipal officers. There is some evidence of work so done upon a strip fourteen feet wide along the west boundary of the church lot. But that strip of land has always been conceded, as we understand the testimony, to have been a public alley, and the defendant concedes that much in the present case. The testimony shows that the land west of the church lot was open for a much wider extent than forty feet and that the public used said land as was convenient, but it is not shown that there was any such public use of a defined forty-foot wide strip as would warrant finding that the public had accepted the street even if it had been dedicated to a public use by the owners. The law recognizes, however, that a public street or highway, in the absence of dedication, might be established by prescription and in our opinion, under the testimony, the said forty-foot strip of land did not become a public street unless by prescription. Now on that point it is not claimed that said land was used as a street till after March 31, 1840, and the undisputed evidence shows that in 1859 David Stewart, the then owner of the land west of the church lot, fenced into his inclosure twenty-six feet in width of the said forty-foot strip of land and that said fence was maintained, repaired and in existence down till the bringing of the present suit in 1908; that Stewart and his successors in title had the exclusive use and possession of said land during all that time, using it for gardening purposes and erecting and maintaining several buildings thereon. Therefore, it is clear that so much of the land in question as was so fenced in and occupied never became a public street by prescription.

There is another question in the case which we will briefly notice here. We think the law is well settled that when a proprietor conveys land as did the Stewarts to the Methodist Episcopal Church, the deed at least amounted to a covenant with the grantee and its successors in title that the land represented as a street would remain open to the use of the owners of said lot as a means of access to their lot. This we think is the law although the deed did not amount to a dedication to a public use. The land west of the church lot belonged to the Stewarts and it was perfectly competent for them in conveying the lot to make a private covenant with their grantees that the forty-foot strip of land mentioned in the deed should remain open for the benefit of the owners of the lot conveyed. This we think was the effect of the deed of March 31, 1840. But what became of the right thus vested in the Methodist Episcopal Church? We have already seen that in 1859 twenty-six feet wide of this land was fenced in by David Stewart and that he and his successors in title held and used the same exclusively, from that time till the bringing of this suit, and therefore a title by adverse possession under the statute of limitations was acquired to said lands which completely extinguished all of the rights therein created by the deed of March 31, 1840. And, therefore, the plaintiff had no right to recover in this case on that ground. There is another reason why we think the plaintiff could not recover in the present action of trespass. He did not purchase the Methodist Episcopal Church lot till 1907, and he was bound to take notice of the fence, improvements and possession of the land in question, and he never acquired any title, possession or right of possession to the land that was fenced in by Stewart. It is true that since the passage of our procedure act of 1887 a plaintiff may recover in trespass, on a proper declaration, for an injury to his reversionary right, although not in the actual possession of the land. But that is not the present case: Logan v. Penna. Tel. Co., 40 Pa. Superior Ct. 644.

The first assignment of error arises on the defendant’s point that under all the evidence the verdict must be for the defendant. The court reserved this point. After verdict in favor of plaintiff counsel for defendant generally-excepted to the charge and to the answers to the points and had bills sealed, and then regularly moved for judgment upon the whole record for the defendant non obstante veredicto. This motion was refused and judgment entered on the verdict and a bill of exceptions sealed for the defendant. This gives rise to the second assignment of error. The third assignment of error relates to the admission in evidence of what is called the Mendenhall plan of lots in the borough of Bridgewater. It appears from the evidence that this plan was not made until about five years after the conveyance from the Stewarts which the plaintiff alleged amounted to a dedication of the forty-foot street. The Stewarts were in no wise responsible for said plan and they never adopted or ratified it and it was not referred to in their conveyance because it did not then exist. The court in admitting this plan sought to guard, and limit its effect, but we cannot say that it did not have a controlling effect upon the jury and we are quite clear that it ought not to have been admitted. The plaintiff’s counsel seems to have realized that the pinch of his case was the lack of a plot, plan or something to aid, in connection with the deed of March 31, 1840, the dedication contended for and, therefore, he urged with persistence and succeeded in getting the Mendenhall plan before the jury. In admitting it we think the court erred.

The first, second and third assignments of error are sustained and the judgment is reversed and judgment is here entered on the whole record in favor of the defendant non obstante veredicto.


source: Caselaw Access Project

author: Morrison, J.,

license: Public Domain

text:
    Haggerty v. Haggerty, Appellant.

      Deeds — Recitals—Boundaries—Case for jury.

    1. Where a deed describes the land conveyed by metes and bounds, and also by adjoinders, and states that the land conveyed was fifty-four acres, and a subsequent deed refers to the first deed, but describes the land by adjoinders only, and states that the land conveyed was fifty acres, a finding by a jury that the two deeds referred to the same fifty-acre tract of land will be sustained, and it is immaterial that the two deeds stated the acreage to be different.

      Lunacy — Inquisition—Return of inquisition.

    2. A return of an inquest in lunacy sets forth a clear finding of lunacy where the inquisition shows the following: “who being respectively sworn and charged to inquire of the premises on their oaths aforesaid respectively do say, that the aforesaid H. at the time of taking this inquisition, aged about sixty years, and is by reason of lunacy incapable of managing his estate; that he hath been in the said state of incapacity by reason of said lunacy for the space of about thirty years last past.”
    Argued May 11, 1910.
    Appeal, No. 43, April T., 1910, by defendant, from judgment of C. P. Lawrence Co., June T., 1906, No. 43, on verdict for plaintiffs in case of Robert Haggerty, by Samuel M. Haggerty, his committee, v. J. R. Haggerty et al.
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Ejectment for land in Little Beaver township. Before William E. Porter, P. J.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Errors assigned were (1-33) various instructions and rulings on evidence.

      W. D. Wallace, with him William McElwee, Jr., for appellants.
    The report of the commission in this case says “that the aforesaid Robert Haggerty at the time of taking this inquisition, aged about sixty years, and is by reason of lunacy incapable of managing his estate.” This does not amount to a finding that Robert Haggerty was a lunatic: Willis v. Willis, 12 Pa. 159; Com. v. Reeves, 140 Pa. 258; In re Heft, 22 C. C. Rep. 289; Gaul’s Est., 7 W. N. C. 522.
    October 10, 1910:

      James A. Gardner, for appellee.
    The inquisition was conclusive of the lunacy: McElroy’s Case, 6 W. & S. 451; Com. v. Schneider, 59 Pa. 328; Rogers v. Walker, 6 Pa. 371; Everly v. Harrison, 167 Pa. 355; Miller v. Withers, 188 Pa. 128.
   Opinion by

Morrison, J.,

This action in ejectment, wherein the plaintiff recovered a verdict and final judgment for about nine acres of ordinary farming land is rather remarkable. The land is only worth a few hundred dollars, but at the trial of this family dispute a record was made up which covers 330 closely printed pages of appellant’s paper-book. Appellant’s counsel presented twenty-two written points covering twelve printed pages and he also filed thirty-two assignments of error covering thirty-two printed pages and his argument covered thirty-one additional pages. The charge of the court covers twenty-five printed pages and the argument of appellant’s counsel covers nineteen more.

A careful examination of this lengthy record leads us to the conclusion that the real questions of importance in the case are only two: (a) Did the deed of January 17, 1874, from James Haggerty and wife and George Haggerty to Robert Haggerty carry the east line of the- land therein- described to the east line of the “Irwin tract,” the latter being the land conveyed by said deed as claimed by appellee, or did said deed only carry said line to the wfest line of the nine acres in dispute? The said nine acres being a narrow strip of land extending along the east side of said Irwin tract and being a part of the same; (b) was Robert Haggerty a lunatic in 1872 and thereafter so that adverse occupancy of said nine acres of land would not make title to it or any part thereof, under the statute of limitations?

Upon the first question, we do not think there was any latent ambiguity in the deed from James Haggerty and wife and George Haggerty, to Robert Haggerty, dated January 17, 1874, for land in Little Beaver township, Lawrence county, Pennsylvania, bounded as follows: “On the east by lands of George Haggerty, on the south by lands of Valentine Schuster, on the west by lands of James Haggerty and on the north by John Smith’s heirs and John Buchanan to place of beginning, containing fifty acres, being included in the warrant of Benjamin Say, George Rutter and Thomas Shields dated April 14th, 1792, and conveyed by Griffith and Wallace by their agent Enoc J. Marvin to James Bois by deed dated June 10th, 1818, and recorded in Beaver County in Deed Book E, pages 448 and 449, by David Boise and wife conveyed to Robert Wylie by deed dated August 3d, a. d. 1818, and recorded in Deed Book E, pages 387 and 388, in Beaver County and by Robert Wylie conveyed to Robert Wylie, Jr., by deed dated 2d day of June, a. d. 1821, and recorded in the office of Beaver County in Deed Book F, pages 385 and 386, and by the last will and testament of the said Robert Wylie, Jr., bequeathed to his children, subject to the widow’s dower, as will appear by reference to the said will dated on the 3d day of August, a. d. 1824, and recorded in the Register’s Office in Beaver County in Will Book A,- page 187, and the above described tract of land released to said Robert Wylie, Jr., by release of even date herewith. The title to the said tract having been subsequently vested in William Irwin of Little Beaver Township, Lawrence County, Pennsylvania, and by him conveyed to George and James Haggerty by deed dated the 3d day of February a. d. 1852, and recorded in the Recorder’s Office in and for Lawrence County, Pennsylvania, in Deed Book Volume No. second, pages 436, 437, 438, to which reference being had will more fully and at large appear.” Now referring to the last recited deed from William Irwin to George and James Haggerty, dated February 3, 1852, we find that it conveyed the land by metes and bounds and also by adjoiners and was said to convey fifty-four acres and fifty perches of land.

These two deeds clearly show what the “Irwin tract” was and it seems to us quite plain that the deed of January 17, 1874, to the appellee was intended to and did convey the same tract of land conveyed by William Irwin to James and George Haggerty, by the deed dated February 3, 1852. The deed to appellee seems to convey the Irwin fifty-acre tract by adjoiners, although the description is not as full as it is in the Irwin deed. But it is of vital importance to notice that there is nothing reserved nor excepted out of the deed to Robert Haggerty, as to the fifty-acre tract, that is embraced in the deed by description and recitals from Irwin to James and George Haggerty, and if the land conveyed by the deed to the appellee is the same land covered by the other deed, then we see nothing to save the nine acres in dispute from .going with the residue of the tract, by the very terms of appellee’s deed. This view of the case renders the verdict and judgment right, unless the appellee lost title to the nine acres in dispute subsequently, under the statute of limitations. There was, of course, a question of fact for the jury as to whether the two deeds referred to and covered the same fifty acres of land, but in view of the recitals in the second deed, the one to appellee, it is difficult to see how any shadow of a doubt can arise on that question. If the jury found that the land described in the second deed was the same land, the Irwin tract, conveyed by the first deed, then we think the whole tract was conveyed by the second deed and that the latter deed called it fifty acres, while the former deed called it fifty-four acres and fifty perches, is not material.

The learned court fairly submitted to the jury the identity of the land conveyed , by the second deed to the appellee, to wit, the deed of January 17, 1874, and also the quantity of the land, but the court went further and submitted the question of ambiguity in the latter deed to the jury. This we think was a mistake, and if the jury had found for the defendants, and judgment had been entered on the verdict, it is highly probable that on appeal the judgment would have been reversed. We are strongly of the opinion that when the jury found that the two deeds referred to the same fifty-acre tract of land, it became a mere matter of legal construction for the court to hold that both deeds covered the same land, to wit, the Irwin tract.

Moreover, it was conceded at the trial, as it was at the argument, that both deeds referred to the same land and the only dispute grew out of the defendant’s contention that a strip of land extending along the whole east line of the tract, containing nine acres, was not embraced in the second deed and that if it was so embraced, appellee lost title to it under the statute of limitations by adverse holding of it for more than twenty-one years by the appellants or some of them.

' Now, this brings us to the second question in the case, Was Robert Haggerty, since 1872, a lunatic so that the statute did not run against him, even if the appellants made out a title under the statute? We think this question was fairly and adequately submitted to the jury and that body having found in favor of the appellee on that question, as well as upon the claim of the defendants of a parol title, nothing remained but for the jury to find for the plaintiff for the land described in the writ, and for the court below to grant judgment on the verdict.

We are not disposed to discuss the assignments of error seriatim, nor do we think the case calls for a lengthy discussion. We will, however, here refer to the contention that the return of the inquest did not find Robert Haggerty a lunatic. The inquisition, confirmed September 16', 1892, as printed by appellants’ counsel, inter alia, shows the following, “who being respectively sworn and charged to inquire of the premises on their oaths aforesaid respectively do say, that.the aforesaid Robert Haggerty at the time of taking this inquisition, aged about sixty years, and is by reason of lunacy incapable of managing his estate; that he hath been in the said state of incapacity by reason of said lunacy for the space of about thirty years last past,” etc. This, we think, was a clear finding that he was a lunatic and it was sufficient under the law: M’Elroy’s Case, 6 W. & S. 451; Com. ex rel. Euchenberg v. Schneider, 59 Pa. 328.

Several of the assignments of error complain of the testimony of several witnesses as to the lunacy of appellee. The testimony shows that these persons had sufficient acquaintance with appellee and opportunities to know his mental condition for many years to justify the court in permitting them to testify on the question of appellee’s sanity: Taylor v. Com., 109 Pa. 262; Rogers v. Walker, 6 Pa. 371. We think there was sufficient competent evidence before the jury, with the inquisition of lunacy, to sustain a finding that the appellee was a lunatic for such a length of time that the defendants could not acquire a title to any part of his land by adverse possession, and we think this question was very fairly submitted to the jury with proper instructions. The defendants were not successful in their attempt to rebut the insanity of the appellee.

We have in a word already referred to the defendants’ claim of a parol title to the nine acres of land in dispute. By this is meant their claim that by agreement between them and the appellee the said nine acres of land were not intended to be included in the deed of January 17, 1874. In setting up that claim the defendants assumed the burden of establishing accident, fraud or mistake in said deed. As we view the two deeds the second one, on its face, conveyed all of the said fifty-acre “Irwin tract,” unless the deed should be reformed on account of accident, fraud or mistake. The court admitted the defendants’ testimony on that question and submitted it to the jury and the finding was, evidently, against the defendants’ contention. To us, this is not surprising. If the grantors in the deed of January 17, 1874, only meant to convey the Irwin fifty or fifty-four-acre tract, less nine acres along the east side- thereof, it is inconceivable that their deed would not have said a part of the “Irwin tract,” or all of it except a strip along the east line surveyed in 1872 by James Harper. But their deed to appellee contains nothing of that character. If they had Mr. Harper survey said nine acres along the east side of the “Irwin tract,” about two years prior to the execution of said deed to appellee, it is unreasonable to argue they had forgotten that very important fact, and that they would execute the latter deed for apparently the whole fifty-four-acre “Irwin tract.” However, that question, as we have seen, was very fairly submitted to the jury and we think the verdict against it was fully warranted. The jury did not find that the deed of January 17, 1874, should be reformed on account of accident, fraud or mistake.

The assignments of error are all dismissed and the judgment is affirmed.


author: Porter, J.,

text:
    Jenkins, Appellant, v. Minersville Borough.

      Road law — Change of grade — Municipal authority — Jurisdiction— Common pleas — Boroughs—Act of May 24,1878, P. L. 129.

    Where on exception filed in the court of common pleas to a report of viewers, awarding damages for a change of grade of a street in a borough, the evidence shows that no ordinance or resolution of the borough council had ever been passed which provided for or authorized any change in the grade of the street in question, nor that there had ever been any adoption of a change of grade after it had been made, nor that there had been in fact any physical change in the grade, the court commits no error in sustaining the exception on the ground of lack of jurisdiction, and in dismissing the proceedings.

      Argued Dec. 8, 1909.
    Appeal, No. 119, Oct. T., 1909, by plaintiff, from order of C. P. Schuylkill Co., Nov. T., 1908, No. 104, sustaining exception to award of jurors in case of Rosaline Jenkins v. Minersville Borough.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exception to award of jury of view.
    The court in an opinion by Shay, P. J., sustained the exception and dismissed the proceedings at the costs of the plaintiff.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court sustaining the exception and dismissing the proceedings.

      J. W. Clemens, for appellant.
    The evidence plainly proves that the improvements on North street, to wit, straightening the curbs, building new gutters and laying pavements, resulting in a change of grade and consequential injury to the real estate of the plaintiff, was authorized and made by the defendant borough, for which said borough was just as responsible as if they had specifically and directly ordained a change of grade: Power v. Ridgway Boro., 149 Pa. 317; White v. McKeesport Boro., 101 Pa. 394; Harp v. Glenolden Boro., 28 Pa. Superior Ct. 116; McKee v. Pittsburg, 7 Pa. Superior Ct. 397; Curran v. East Pittsburg Boro., 20 Pa. Superior Ct. 590.

      John B. McGurl, for appellee.
    That a change of the lines or grades of a street is illegal if done without ordinance has been held in numerous cases: Oakdale Boro. v. Sterling, 43 W. N. C. 123; Western Penna. Ry. Co. v. Allegheny, 92 Pa. 100; Hershberger v. Pittsburg, 115 Pa. 78; Morewood Ave., 159 Pa. 39; Reap v. Scranton, 7 Pa. Superior Ct. 32; Brink v. Dunmore Boro., 174 Pa.. 395; Gilmore v. Connellsville Boro., 15 W. N. C. 342.

      November 21, 1910:
    That the proceedings by view as taken in this case cannot be sustained is conclusive from the circumstances as revealed in the testimony and by the whole record as now at bar: Stork v. Philadelphia, 195 Pa. 101; Cooper v. Scranton, 21 Pa. Superior Ct. 17; Fyfe v. Turtle Creek Boro., 22 Pa. Superior Ct. 292; Chatham Street, 16 Pa. Superior Ct. 103.
   Opinion by

Porter, J.,

The appellant presented her petition to the court below, under the provisions of the Act of May 24, 1878, P. L. 129, entitled, “An Act for appointing viewers to assess damages where streets and alleys are changed in grades or location, in the several boroughs of the Commonwealth,” praying for the appointment of five disinterested citizens as viewers to ascertain and determine the damages resulting to her property from an alleged change of grade of North street. The petition set forth that the appellant had owned the property for fifteen years, during which period North street had been a graded highway of the borough, and that within six years last past the borough had changed the grade of the street thereby causing damage to plaintiff’s property. The court appointed viewers who in due time filed a report finding that the property of the plaintiff had been damaged. The borough filed exceptions to this report, the first of which was: “The Court of Common Pleas has no jurisdiction in this case for the reason that there was no change of grade or alteration made by the defendant or by the authority of the said defendant,” which exception the court below sustained, and dismissed the proceeding at the cost of the plaintiff. The plaintiff appeals from that order.

The exception which the court below sustained did not challenge the general jurisdiction of the court, under the statute in question, to appoint viewers to ascertain damages resulting to property from the change of grade of a borough street. The ground upon which the exception was based was that in this case the borough did not come within the provisions of the statute for the reason that it had not made or authorized the making of any change in ■ the grade of the street. The words of the statute which confer the jurisdiction, which the plaintiff had invoked ¿re: “In all cases where the proper authorities of any borough within this Commonwealth, have or may hereafter change the grade or lines of any street or alley,” etc. The statute does not render a borough liable for damages resulting from the grade of a-street when the change is not made or authorized by the proper authorities of the borough. This exception raised a question of fact; had the proper borough authorities made or authorized a change in the grade of North street? The parties to the proceeding presented such testimony as they desired for the purpose of determining this question of fact. The ordinance book of the borough was produced and'the proper borough officials were called as witnesses,- and the testimony, documentary and oral, established that no ordinance or resolution of the borough council had ever been passed which provided for or authorized any change in the grade of the street. This much is conceded by the learned counsel for the appellant. The plaintiff called a number of witnesses whose testimony established that the borough had by resolution ordered the straightening of the curbs on the street and authorized and contracted for the construction of a “ten brick gutter” in the street. There can be no question that it is competent to prove that a change in a street has been made by authority of a municipality by evidence other than its records or other documents: Weir v. Plymouth Borough, 148 Pa. 566; Bohan v. Avoca Borough, 154 Pa. 404; Rothwell v. California Borough, 21 Pa. Superior Ct. 234; but municipal recognition of the improvement must be proved, either by municipal action in the first instance or by acquiescence and subsequent adoption: Philadelphia v. Eddleman, 169 Pa. 452; Chester City v. Evans, 32 Pa. Superior Ct. 641. The way was open for the appellant to produce some evidence that the change in the street, if there had been a- change in the grade, had been in the first instance authorized by the borough or subsequently adopted by it. The appellant has printed in her paper-book the evidence which she presented’ in the court below, when her standing to maintain this proceeding was challenged by the exception. There is nothing in that evidence from which a jury should be permitted to find that there was even any physical change in the grade of the street, much less that the borough had authorized such a change. Had the plaintiff produced any evidence which would have warranted the submission to a jury of the question whether the borough had made a change in the grade of the street, or authorized such a change, or adopted it after it had been made, it would have been the duty of the court, owing to the peculiar wording of this statute and the nature of the proceeding, to have overruled the exception and let the parties take their chances upon an appeal and a trial by jury, under the Act of June 13, 1874, P. L. 284. The evidence which the plaintiff had produced before the board of viewers, if any evidence as to a change in the grade of the street was produced at that stage of the proceeding, was not before the court when it came to pass upon this exception, nor is it presented here, the appellant very properly having refrained from printing it in her paper-book. The plaintiff having failed to produce any evidence whatever tending to establish the facts which gave the court jurisdiction to entertain the proceeding, the exception was properly sustained.

The order of the court below is affirmed and the appeal dismissed at cost of the appellant.


text:
    Press Publishing Company, Appellant, v. Reading News Agency.

      Contracts — Consideration—Evidence—Parol evidence.

    1. Parol evidence is admissible to show a consideration additional to that mentioned in a written contract, where the parol evidence in no way contradicts, alters or varies the terms of the written instrument.

      Contract — Termination of contract — Principal and agent.

    2. When a contract provides that one party shall have the exclusive right to sell the product of another within a certain territory, and does not specify a definite time or prescribed conditions which shall determine the duration of the relation, it is within the power of either party to terminate it at any time; but where the contract provides that a party shall have such exclusive right as long as he faithfully and impartially conducts the business and pays his bills promptly, the other party cannot terminate the contract without giving a good and sufficient reason therefor. If it appears that the party employed had faithfully and impartially conducted the business and promptly paid his bills he cannot be discharged from his employment. In such a case evidence as to how the party had conducted the business and discharged his duties, and as to the volume of the business and the profits thereon, is admissible not only as bearing upon the right to discharge, but also upon the measure of damages for the breach of the covenant.

      Evidence — Writings—Notice to produce — Copies.
    3. Where at a trial one party calls upon the other to produce a letter and the party upon whom the demand is made merely states that he had received no notice to produce the writing and asserts that he had never received it, a copy of the letter is properly admissible.
    Argued Nov. 12, 1909.
    Appeal, No. 208, Oct. T., 1909, by plaintiff, from judgment of C. P. Berks Co., March T., 1907, No. 74, on verdict for defendant in case of The Press Publishing Company v. Reading News Agency.
    Before Rice, P. J., Henderson, Morrison, Oblady, Head, Beaver and Porter, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Assumpsit for money due under a contract. Before Stevens. J.

      The facts are stated in the opinion of the Superior Court.
    At the trial the court admitted under objection and exception various offers of evidence showing the manner in which the defendant conducted the business, the volume thereof, and the profits thereon. [2-7]
    Verdict for defendant with certificate in defendant’s favor for $163.92, upon which judgment was entered.

      Errors assigned were (1) in permitting defendant to show the additional consideration over and above that mentioned in the letter of April 1, 1903, quoted in the opinion of the Superior Court; (2-7) various rulings on evidence, quoting the bill of exceptions; (8-17) various instructions, quoting them.

      Charles H. Tyson, with him Clark A. Wick and Benj. F. Dettra, for appellant,
    cited: Buzby v. Buzby, 30 Pa. C. C. Rep. 225; Hathaway v. Bennett, 10 N. Y. 108; Willcox & Gibbs Sewing Machine Co. v. Ewing, 141 U. S. 627 (12 Sup. Ct, Repr. 94); Coffin v. Landis, 46 Pa. 426; Peacock v. Chambers, 46 Pa. 437; Blackstone v. Buttermore, 53 Pa. 266; Boas v. Updegrove, 5 Pa. 516; Real Estate Savings Institution v. Linder, 74 Pa. 371; Wilson v. Wernwag, 217 Pa. 82; Streeper v. Williams, 48 Pa. 450; Wolf v. Studebaker, 65 Pa. 459; Pennypacker v. Jones, 106 Pa. 237; Cotton v. Wiley, 39 Pa. Superior Ct. 507; Patton v. Ash, 7 S. & R. 116; Carland v. Cunningham, 37 Pa. 228; Eilbert v. Finkbeiner, 68 Pa. 243; Jensen v. McCorkell, 154 Pa. 323; Wilson v. Wilson, 26 Pa. 393.

      Wellington M. Bertolet, with him Isaac Hiester, for appellee.
    Parol evidence is admissible to show other or greater consideration than that expressed in the instrument: Strawbridge v. Cartledge, 7 W. & S. 394; Jack v. Dougherty, 3 Watts, 151.
    Evidence of past profit's was properly admitted for the purpose of giving the jury a substantial basis upon which to determine the value of the contract at the time of breach: Pittsburg Gauge Co. v. Valve Co., 184 Pa. 36.
    November 21, 1910:
    Notice to the plaintiff to produce the original of a letter, the receipt and existence of which was positively denied by plaintiff’s counsel before a carbon copy was admitted in evidence, is unnecessary as a preliminary to the introduction of the carbon copy: Roberts v. Spencer, 123 Mass. 397; Scott v. Bailey, 73 Vt. 49 (50 Atl. Repr. 557); Bickley v. Bickley, 136 Ala. 548 (34 So. Repr. 946); Jones v. Jones, 38 Cal. 584.
   Opinion by

Porter, J.,

The plaintiff brought this action to recover for newspapers delivered to the defendant company, during the month of May, 1904. The defendant pleaded payment and set-off and introduced evidence tending to establish that it had suffered damages by reason of the breach by the plaintiff of the contract under which the relations between the parties, that of publisher of a newspaper and an agent having the exclusive sale thereof in a particular territory, had been established. The jury, after a trial, certified a balance in favor of defendant, and the plaintiff appeals.

The terms and conditions under which the defendant acquired the exclusive agency of the publications referred to were defined in an instrument of writing signed by the accredited agent of the plaintiff company and accepted by the defendant, in the following words:

“Mr. F. W. Curtis.
“Dear Sir: — In consideration of your undertaking to handle our publications at Reading and Allentown it is understood and agreed that you will enjoy all the present privileges of news agencies and will be recognized as the exclusive agent of the publications herein mentioned for the cities of Reading and Allentown, not including the rights enjoyed by the Union News Company at stations, as long as you faithfully and impartially conduct the business and pay your bills promptly.
“The Press Publishing Company,
“New York World,
“Per S. J. Richardson, Circulation Manager.”

The plaintiff continued to furnish • the publications referred to in the .schedule annexed to this paper until June, 1904, when they notified the defendant that they would not furnish the papers under the contract after the sixth day of that month, and from and after that day they did deliver the papers to another party whom they had created their exclusive agent for the sale of the publications. The defendant contends that- this action involved a violation of the covenant of the contract that it should be recognized as the exclusive agent of the publications referred to, in said cities, “as long as you faithfully and impartially conduct the business and pay your bills promptly.” The defendant called a witness who testified, under exception by plaintiff, as to the circumstances under which the written contract above recited was delivered by the plaintiff to the defendant. “Q. Will you.state what occurred on or about April 1st, 1903, with reference to assuming the indebtedness of Walter G. Roland to the Press Publishing Company?. A. In regard to Walter G. Roland, a representative of the New York World stated that Mr. Walter G. Roland owed them $280.78. I agreed to pay this off in cash provided they would sign this paper (the agreement above quoted), turning the exclusive agency of the New York World over to us. So they accepted a check and they sent this paper accordingly, and gave us the control of the paper as long as we conducted the business impartially and paid our bills promptly.” The defendant offered in connection with this testimony the check dated April 1, 1903, given- to the plaintiff in payment of .the $280.78 above mentioned, the indorsements upon which showed that the plaintiff company had received payment of the same. The witness testified that this check had been delivered to the plaintiff company at the same time its agent signed the written contract, and that the money was paid “in consideration of their signing this paper.” The plaintiff objected to the introduction of this testimony upon the ground that as the written agreement itself made no mention of the payment of the money, the evidence of such payment was incompetent, that the negotiations leading up to it were merged in the agreement. This oral testimony did not contradict, alter or vary the terms of the written contract. The only effect of it was to show a greater consideration than that expressed in the written instrument. The additional consideration offered to be proved did not appear to be repugnant or inconsistent with that set out in the deed, and was, therefore, such as it was competent for the defendant to establish by oral evidence: Jack v. Dougherty, 3 Watts, 151; Strawbridge v. Cartledge, 7 W. & S. 394; Watterson v. Allegheny Valley Railroad Co., 74 Pa. 208. If the testimony of this witness was true, and it was uncontradicted although the agent of the plaintiff with whom the witness had dealt was present and testified at the trial, then the offer of the defendant to pay an amount for which it was in no manner liable was upon the express condition that the plaintiff would sign the paper which became the contract between the parties, and the plaintiff, knowing this fact, accepted the money and signed the contract. The evidence as to the additional consideration was properly admitted and the first specification of error is overruled. The parties acted under this contract until June, 1904, when it was abruptly abrogated by the plaintiff. The defendant contended that this was a breach of the contract for which it was entitled to such damages as the evidence established it to have sustained. The plaintiff contends that the defendant acquired no property right in the exclusive agency to sell the publications in the cities of Reading and Allentown, and that the plaintiff had the right at any time to cancel the contract and refuse to make further deliveries of the publications to the defendant, for the reason that the written contract provided for no definite term during which the agency should continue. When a contract provides that one party shall render service to another, or act as his agent, or have the exclusive right to sell the product of a factory within certain territory and does not specify a definite time or prescribe conditions which shall determine the duration of the relation, it is within the power of either party to terminate it at any time. Such contracts are to be construed according to their terms, and it is entirely competent for the parties to agree that they shall operate for a definite period, or that their continuance shall depend upon conditions expressed in the instrument. The situation in which the parties stand, the necessities for which they would naturally provide, the convenience they would probably seek to secure, and the circumstances and relations of the property in regard to which they have negotiated, are all elements in the interpretation of ambiguous contracts. When, however, the parties have clearly expressed their intention, that intention must govern. The rights of an exclusive agent for the sale of a product are subject to the conditions expressed in the agreement. When there is nothing said in regard to the time during which the agreement shall continue and nothing in its language to define the duration of the service of the party, or his employment by the defendant, then either party may terminate the relation at his will. A manufacturer or publisher may by proper covenants vest a property right in one having an exclusive right to sell his product within a given district and the agreement may either limit the right to a certain period of time or make its existence dependent upon the devotion, attention and abilities with which the agent discharges his duty: Coffin v. Landis, 46 Pa. 426; Peacock v. Chambers, 46 Pa. 437; Hathaway v. Bennett, 10 N. Y. 108; Willcox & Gibbs Sewing Machine Company v. Ewing, 141 U. S. 627. The parties to the contract with which we are now dealing, by the express terms of the writing, covenanted that the defendant should enjoy the exclusive agency for the sale of the publications in question, “as long as you (the defendant) faithfully and impartially conduct the business and pay your bills promptly.” This was a valid covenant, made by parties competent to contract, and there was no evidence that it had been induced by fraud. The parties having embodied this covenant in their contract, it must' be enforced according to its terms, and it would have been error in the court below to have instructed the jury that the plaintiff had a right to end the contract at any time and without giving any reason. The plaintiff had refused to longer deliver the publications to the defendant, and the question of fact upon which the right of the publishing company to adopt this course depended was whether the defendant had faithfully and impartially conducted the business and paid its bills promptly. The parties, respectively, introduced evidence as to the manner in. which the business had been conducted, and the question of fact upon which the right of the plaintiff to sever the contract relation depended was fairly left to the jury. The verdict of the jury in favor of the defendant must be accepted as determining that the defendant had faithfully and impartially conducted the business and promptly paid its bills. This being the case the action of the plaintiff involved a breach of the covenant into which it had entered.

The question of fact at issue being whether the defendant had faithfully and impartially conducted the business and promptly paid for the publications furnished by the plaintiff, evidence as to the manner in which the business had been conducted, the efforts made by the defendant to further the sales of publications furnished by the plaintiff and the manner in which the bills had been paid was certainly competent, and the specifications of error founded upon the admission of that testimony are without merit. The right of the plaintiff to annul the contract depended upon the manner in which the defendant had discharged the duty which it assumed under the agreement, and the jury could only determine whether the service of the defendant had been faithful and impartial from evidence showing the manner in which the defendant had discharged its duty. If the plaintiff had wrongfully annulled the contract, the measure of damages to which the defendant was entitled was the value of the contract at the time of the breach. The value of the contract to the defendant was manifestly dependent úpon the amount of profit which ought to have accrued from the performance of the contract according to its terms. Evidence as to the volume of business which was being done at the time the contract was canceled by the plaintiff and which had been done under the contract in the past and as to the profits which accrued to the defendant from such business was admissible, not as a safe measure for future profits but as pertinent to the question as to what the profits would probably have been had not the business been interrupted and as a material aid to the jury in determining the actual value of the contract to the defendant: Pittsburg Gauge Company v. Ashton Valve Company, 184 Pa. 36; Wilson v. Wernwag, 217 Pa. 82; Sedgwick on Measure of Damages, vol. 1, page 164. The specifications of error referring to the admission of this evidence are overruled.

The defendant at the trial called upon plaintiff to produce a letter written by defendant to plaintiff and mailed on June 22, 1904. Counsel for plaintiff said: “We had no notice prior to this; we do not know of its existence, never having received it.” The court below then permitted the defendant to introduce testimony tending to establish that the letter had been, duly addressed to the plaintiff and mailed in the regular course of business and admitted in evidence a carbon copy of the letter, which ruling is now assigned for error. That it is improper to admit in evidence copies of papers, the originals of which are in the hands of the opposite party, without proof that such party has been notified to produce the originals, is well settled. A copy is in its nature less satisfactory evidence than the original; and when the original is in the hands of the adverse party, notice should be given to produce it, because otherwise it cannot appear that the party offering the copy might not have had the original if he had chosen to call for it. This would seem to be a fair statement of the rule and the reason for it. That a reasonable time must be given to the opponent to account for the original, before a copy can be admitted in evidence, must necessarily follow. In determining whether the time is reasonable or not, much must necessarily be left to the discretion of the trial judge. When passing upon the question whether the notice has given an adversary sufficient time to produce the original, it is certainly proper for the court to consider whether upon the facts presented there is reasonable ground for holding that had the adversary had more time he might have produced the original. When the adversary denies the receipt and existence of the original, then the whereabouts of that document becomes an unexplained mystery and the case is virtually one of a lost instrument. When the adversary denies that he has the original in his possession and asserts that he never received it, it cannot reasonably be held that the court below abused its discretion in holding that notice at the trial to produce the original was in time: 2 Wigmore on Evidence, sec. 1203, p. 1423; Dunbar v. United States, 156 U. S. 185; Roberts v. Spencer, 123 Mass. 397; Scott v. Bailey, 73 Vt. 49; Bickley v. Bickley, 136 Ala. 548; Jones v. Jones, 38 Cal. 584. Had the plaintiff interposed an objection as to the time or manner in which the notice was given and suggested that it wished time to make search among its papers to see what it could find corresponding in any degree to the description of this letter given by the witness, there might have been merit in this specification of error. But this record discloses nothing of that kind and the specification of error is dismissed.

We find nothing in the other specifications of error requiring further discussion.

The judgment is affirmed.


text:
      Eigenbrodt v. Williamsport, Appellant.

      Negligence — Municipalities—Defect in street — Province of court and jury.

    1. In an action against a city to recover damages for personal injuries alleged to have been caused by a fall on a defective sidewalk, the plaintiff is not entitled to have the case submitted to the jury where the evidence shows, that although there was an abrupt descent in the sidewalk at or near where plaintiff fell, yet there was no evidence that the plaintiff had entered upon the descent, or that the abruptness of the slope had been the cause of the accident.
    2. Inferences must be based on facts proved, and not on mere presumptions.
    Argued March 2, 1910.
    Appeal, No. 11, Feb. T., 1910, by defendant, from judgment of C. P. Lycoming Co., March T., 1909, No. Ill, on verdict for plaintiffs, in case of Mary H. Eigenbrodt et al. v. City of Williamsport.
    Before Rice, P. J., Henderson, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hart, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Mary H. Eigenbrodt for $660 and for John H. Eigenbrodt for $341.25. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Frank P. Cummings, city solicitor, for appellant.—
    Negligence must be proved. When the uncontradicted evidence does not warrant the jury in inferring negligence as the proximate cause of an injury, the court should direct a verdict for the defendant: Behling v. Southwest Penna. Pipe Lines, 160 Pa. 359; Robb v. Connellsville Boro., 137 Pa. 42; Philadelphia v. Smith, 23 W. N. C. 242; Roach v. Kelly, 194 Pa. 24; Morrison v. Davis & Co., 20 Pa. 171; Phila. & Reading R. R. Co. v. Schertle, 97 Pa. 450; Ford v. Anderson, 139 Pa. 261; Welsh v. R. R. Co., 181 Pa. 461; Reese v. Clark, 146 Pa. 465; Phila. City Pass. Ry. Co. v. Henrice, 92 Pa. 431.
    November 21, 1910:

      Otto G. Kaupp, for appellees.
    The case was for the jury: Bond v. Penna. R. R. Co., 218 Pa. 34; Dalmas v. Kemble, 215 Pa. 410; Ackley v. Bradford Township, 32 Pa. Superior Ct. 487.
   Opinion by

Porter, J.,

This action is brought by Mary H. Eigenbrodt and her husband to recover damages for injuries suffered by the former in a fall, alleged to have been caused by negligence of the defendant. The statement filed by plaintiff averred negligence of the defendant in constructing and maintaining a sidewalk which was unsafe, “by reason of an abrupt descent in said sidewalk of about twelve inches.” There was a verdict in favor of the plaintiffs in the court below, and the city of Williamsport appeals.

The evidence disclosed that Railway street and Hancock street were unpaved, that the sidewalk upon Railway street was about twelve inches higher than the cartway of Hancock street at the point of intersection, that across the cartway of Hancock street there was a plank street crossing and that between this plank street crossing and the sidewalk on Railway street the city had constructed and maintained a plank gutter crossing forty-four inches in length and three feet wide, the end which adjoined the sidewalk being twelve inches higher than the end which connected with the plank street crossing; so that this gutter crossing had- a slope of twelve inches in forty-four inches. The maintenance of the gutter crossing having this slope was the only act of negligence upon the part of the city alleged in plaintiff’s statement or attempted to be established by the evidence. The plaintiff called a number of witnesses who testified that when the gutter crossing was wet it was slippery and they had seen persons fall on it. The character of the evidence produced in the court below relieves us from the duty of considering whether it was sufficient to sustain a finding that the city was negligent in constructing and maintaining the gutter crossing in this manner. The burden was upon the plaintiff to prove not only that the city was negligent, but that the negligence of the city caused the injury for which she seeks to recover damages.

The parties had agreed on certain facts including the following: “Mary H. Eigenbrodt, on December 16th, 1907, left her home and was accompanied by Mrs. Bruce Smith, and together they traveled east on Germania street to Railway street, and south on the sidewalk on the east side of Railway street to the intersection of Hancock street and Railway streets, the point of the accident; and Mary H. Eigenbrodt was pushing her baby carriage, with her baby therein, over the sidewalk at the time of the accident.” There is in this agreement nothing from which a jury should have been permitted to infer that the plaintiff was upon the sloping gutter crossing at the time she fell, or that the slope of the crossing caused her to fall. The only other evidence upon this subject was that of the plaintiff and her friend Mrs. Smith. The only testimony of the plaintiff upon this point was as follows: “Q. Describe how accident happened? A. Walking slowly from Mrs. Smith’s house down Railway street towards Third and was pushing baby carriage when I fell down the off-set.” The testimony of Mrs. Smith, upon the same subject, was: “Q. What happened on Railway street, where Hancock street comes into it, to Mrs. Eigenbrodt? A. Mrs. Eigenbrodt was ahead with the baby and I was behind. Mrs. Eigenbrodt fell, and the carriage was about to fall over when I grabbed it, preventing it from falling over.” This testimony does not disclose that the plaintiff had entered upon the gutter crossing; nor does it show what caused the fall; all that it does show is that she fell “down the off-set.” Yet from this testimony the court below permitted the jury to infer that the fall of the plaintiff had been caused by the sloping gutter crossing. The evidence disclosed that there had been a recent fall of snow and the plaintiff may have fallen from the general slippery condition of the street. The most favorable interpretation of the evidence suggests no more than a conjecture that she may have fallen down over the slope, or from the sidewalk into the street, but there is fully as much warrant for the inference that she slipped on the sidewalk, or stumbled, as that her fall was caused by the gutter crossing upon which the evidence failed to establish that she had entered. Inferences must be based on facts proved, and not on mere presumptions, and the evidence in this case failed to establish any causal connection between the alleged defect and the accident which caused the injury of plaintiff: Philadelphia & Reading Railroad Co. v. Schertle, 97 Pa. 450; Reese v. Clark, 146 Pa. 465; Welsh v. Erie & Wyoming Valley Railroad Co., 181 Pa. 461; Hendrickson v. Chester City, 221 Pa. 120. The court below was called upon to deal with a case in which the evidence failed to disclose a cause of action, and the jury should not have been permitted to supply additional facts and inferences necessary to support a cause of action based on the alleged negligence of the city: Rotsell v. Borough of Warren, 10 Pa. Superior Ct. 283; Knepper v. Tamaqua Borough, 36 Pa. Superior Ct. 183. The point submitted by the city praying for binding instructions ought to have been affirmed.

The judgment is reversed.


author: Beaver, J.,

text:
    Commonwealth v. Sarver, Appellant.

      Criminal law — Sentence—Imprisonment—Allegheny county workhouse — Acts of May 1, 1861, P. L. 682, March 21, 1865, P. L. 517 and March 8, 1871, P. L. 184 — Judicial notice.

    1. Under the Acts of May 1, 1861, P. L. 682, March 21, 1865, P. L. 517, and March 8, 1871, P. L. 184, a person convicted of assault and battery before a justice of the peace and six jurors in Washington county may be sentenced to a term of imprisonment in the Allegheny county -workhouse.
    2. The fact that Washington county is a county having an agreement with the Allegheny county workhouse fon the care of its prisoners, is a fact of which the courts in Washington county will take judicial notice.
    Argued April 19, 1910.
    Appeal, No. 94, April T., 1910, by defendant, from order of C. P. Washington Co., Nov. Term, 1909, No. 89, affirming sentence in case of Commonwealth v. John W. Sarver, Jr.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to the record of a justice of the peace. Before McIlvaine, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in dismissing the exceptions to the record.

      Vernon Hazzard, for appellant.
    The manner of treatment is different in the jail of the county of Washington from what it is in the Allegheny county workhouse: Beale v. Com., 25 Pa. 11.
    When the law appoints a particular judgment for an offense the court cannot alter it: Daniels v. Com., 7 Pa. 371; Rogers v. Com., 5 S. & R. 463; Scott v. Com., 6 S. & R. 224; James v. Com., 12 S. & R. 220; Clellans v. Com., 8 Pa. 223; Stockwell v. United States, 80 U. S. 531.

      November 21, 1910:

      C. L. V. Acheson, district attorney, with him T. H. W. Fergus, assistant district attorney, for appellee, cited: Com. v. Zelt, 138 Pa. 615.
   Opinion by

Beaver, J.,

The Act of March 21, 1865, P. L. 517, extended to Washington county the provisions of an act entitled, “An act to change the mode of criminal proceedings in Erie and Union Counties,” passed May 1, 1861, P. L. 682, known as the Erie act.

Under the provisions of these acts, the defendant was tried before a justice of the peace and six jurors upon a charge of assault and battery, and was convicted and sentenced by the justice “to pay a fine of one dollar and costs and to serve six months in the Allegheny county workhouse.”

Upon certiorari to the court of common pleas, the defendant raised in the court below, as he raises here, the legality of the sentence of the justice.

It is provided in sec. 9 of the act of May 1, 1861, supra, “That, whenever the jury shall render a verdict of guilty, the justice shall proceed to pass sentence upon the defendant according to law, and with the like effect as if the defendant had plead guilty or then [been?] convicted in the court of quarter sessions; and any sentence of imprisonment which may be imposed shall only be inflicted in the jail of the proper county,” etc.

March 8, 1871, P. L. 184, an act of assembly was passed, entitled, “A supplement to an act entitled ‘a supplement to an act for the better management of the Allegheny County prison,’ approved the first day of February, Anno Domini one thousand eight hundred and sixty-six,” in which it is provided in sec. 2: “In-every county having such agreement with said workhouse” (it was not denied in the court below nor is it denied here, that Washington county was such a county), “it shall be the duty of every court, justice of the peace or other magistrate, by whom any person, for any crime or misdemeanor not punishable by imprisonment in the state penitentiary may be sentenced, for any time not less than sixty days, to sentence such persons to the Allegheny county workhouse, there to be received, kept and employed in the maimer prescribed by law, and the rules and discipline of such workhouse; and it shall be the duty of any such court, justice of the peace or other magistrate, by a warrant of commitment duly issued by the court, justice or magistrate, declaring such sentence, to cause such person so sentenced to be forthwith conveyed, by some proper officer, to said workhouse.”

Was the sentence, as authorized in the act last cited, in accordance with the law?

The cases cited by the appellant and urged as ruling the question here involved — Com. v. Barge, 11 Pa. Superior Ct. 164; Com. v. Barton, 20 Pa. Superior Ct. 477; Com. v. Fetterman, 26 Pa. Superior Ct. 569; Com. v. Lewis, 29 Pa. Superior Ct. 282 — all relate to sentences by the court to punishment not authorized by law for the crimes of which the defendants were severally found guilty, and do not raise the question which is raised here.

We fail to see why the case of Com. v. Zelt, 138 Pa. 615, in which the defendant was convicted of selling liquor without license under the Brooks Law of May 13, 1887, P. L. 108, does not rule the present case. That sentence was imposed under an act passed subsequently to that of 1871, supra, and, upon appeal to the Supreme Court, it was held that the sentence, which was similar to the one imposed in this case, was legal, in which Mr. Chief Justice Paxson, who delivered the opinion of the Supreme Court, said: “We find no error in the action of the court below in sentencing the defendants to imprisonment in the Allegheny county workhouse. See third assignment. It appears to have the sanction of an act of assembly.” The sentence in the Zelt case, supra, was imposed under sec. 15 of the Brooks act of 1887, supra, which is: “Any person who shall hereafter be convicted of selling or offering for sale any vinous, spirituous, malt or brewed liquors, or any admixture thereof, without a license, shall be sentenced to pay a fine of not less than five hundred dollars, nor more than five thousand dollars, and undergo an imprisonment in the county jail of not less than three months, nor more than twelve months.” If, therefore, the provisions of this act were complied with by a sentence to the Allegheny county workhouse under the provisions of the act of 1871, supra, a fortiori the sentence imposed in this case under the act of 1871, which expressly provided for the change from the county jail, as provided by the Erie act of 1861, to the Allegheny county workhouse, is valid and binding.

The appellant argues that the rules and regfilations of the Allegheny county workhouse impose more severe punishment than would be inflicted in the county jail under a like sentence, but there seems to be no evidence of this kind, and it does not seem to have been raised in any regular way in the court below, nor is there anything before us but mere allegation upon the subject.

It is also argued by the appellant: “And finally, since the commonwealth has not shown, nor attempted to show, any contract by the managers of the Allegheny county prison with the Washington county commissioners, as permitted by the act of 1871, this court will not presume that such a contract has been made.” This question does not seem to have been raised in the court below. It is alluded to by the judge who heard the certiorari and is disposed of in this .way: “There is no dispute that Washington county is in the western district of the Supreme Court of Pennsylvania, nor is there any dispute that it has a contract with the managers of the Allegheny county workhouse to receive defendants who have been sentenced by the court, or any justice or magistrate of this county, to imprisonment in that institution.” In the absence of dispute in the court below, it is unnecessary for us to consider the question here, and indeed there is nothing which raises the question in such a way as to enable us to consider it.

Without this, however, it is only necessary, and perhaps quite sufficient, to say that these were facts within the peculiar knowledge of the court and that they were, therefore, those of which the court not only could, but ought to, take judicial notice. Judicial notice or knowledge may be defined as "The cognizance of certain facts which judges and jurors may, under the rules of legal procedure or otherwise, properly take and act upon without proof, because they already know them:” 16 Cyc. 849. It was essential to the everyday administration of criminal justice for the court to clearly have in mind these facts which, as it says, were not disputed, and, therefore, there was no necessity for the introduction of distinct and specific evidence to bring them to its attention.

The case, as it appears to us, was carefully considered in the court below and properly disposed of. Its decree, therefore, is affirmed and the appeal dismissed at the costs of the appellant.


author: Head, J.,

text:
    McDermott v. Consolidated Ice Company, Appellant
    (No. 1).

      Negligence — Master and servant — Violation of instructions by servant— Infant — Parent and child.

    1. Where the act of a servant complained of is done in the performance of the duty he owes to his master or in furtherance of the business of the latter, in legal contemplation he is acting under the direction of the master, and the latter cannot escape liability for the consequences of such act even though the manner of doing it violated the instructions which the servant had received.
    2. If a master leave to his servant a discretion as to the manner in which his duty is to be performed, he must be responsible for the manner in which that discretion is exercised. If he -undertake to determine for himself the manner in which his servant shall perform his prescribed duties, the obligation is on him to see that such instructions are carried out and that the servant does not substitute his own methods for those of his master.

      3. Where the janitor of a building, whose duty it is to collect and burn accumulations of waste paper in the building, is instructed by his employer to bum such paper in the furnace, but in violation of his instructions the janitor burns the paper on a large uninclosed lot frequented by children and at a time when a high wind is blowing, and a child of tender age is seriously burned by her clothing taking fire, the master is liable for the injuries sustained.
    4. In such a ease neither the janitor nor the child could be regarded as trespassers in making such use as they respectively did of the lot in question. As to each other they were occupying neutral ground, and each owed to the other the general duty of care according to the circumstances.
    5. Where a mother permits her seven year old daughter to play with other children on an uninclosed lot, and the child is injured by a fire made on the lot for the purpose of destroying waste paper, the question of the mother’s contributory negligence is under all the circumstances, a question for the jury.
    6. Where a person lights a fire to burn waste paper on an uninclosed lot on a windy day, when children are playing on the lot, and a child is injured by the fire, the court cannot say as a matter of law that the lighting of the fire under the circumstances was not an act of negligence.
    Argued April 20, 1910.
    Appeal, No. 68, April T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny County, Feb. T., 1906, No. 102, on verdict for plaintiff in case of Catherine McDermott, a minor, by her next friend, W. S. Sullivan and Bridget McDermott, mother of said Catherine McDermott, v. Consolidated Ice Company.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for Catherine McDermott for $2,200 and for Bridget for $300. Defendant appealed.

      Errors assigned were various instructions referred to in the opinion of the Superior Court.

      J. S. Ferguson, with him E. G. Ferguson, for appellant. — ■
    The act was not within the scope of the janitor’s employment: Towanda Coal Col v. Hemean, 86 Pa. 418; Phila., G. & N. R. R. Co. v. Wilt, 4 Whart, 143; McKenzie v. McLeod, 10 Bing. 385; Andrews v. Green, 62 N. H. 436; Tuller v. Voght, 13 Ill. 278; St. Louis Southwestern R. R. Co. v. Mayfield, 35 Tex. Civ. App. 82 (79 S. W. Repr. 365).
    An owner of land who makes changes on it in the course of its beneficent use which tend to attract children and to expose them to danger, is under no duty to take special precautions for their safety: Thompson v. B. & O. R. R. Co., 218 Pa. 444; Gillespie v. McGowan, 100 Pa. 144; Feehan v. Dobson, 10 Pa. Superior Ct. 6; Wilmot v. McPadden, 19 L. R. A. (N. S.) 1101.

      Body P. Marshall, with him Thos. M. Marshall and O. K. Eaton, for appellees.
    The great weight of authority is to the effect that a disobedience of the master’s orders by a servant engaged in the prosecution of the master’s business will not relieve the master of liability. There is no pretense here that Arter was engaged in his own business or that he was furthering his own end: Oxford v. Peter, 28 Ill. 434; Consolidated Ice Machine Co. v. Keifer, 134 Ill. 481 (25 N. E. Repr. 799); R. R. Co. v. Randall, 40 Kansas, 421 (19 Pac. Repr. 783); Barmore v. Ry. Co., 85 Miss. 426 (38 So. Repr. 210); Crandall v. Boutell, 95 Minn. 114 (103 N. W. Repr. 890); Cosgrove v. Ogden, 49 N. Y. 255; Riegler v. Tribune Assn., 57 N. Y. Supp. 989; French v. Cresswell, 13 Ore. 418 (11 Pac. Repr. 62); Eichengreen v. R. R. Co., 96 Tenn. 229 (34 S. W. Repr. 219) Gregory v. R. R. Co., 37 W. Va. 606 (16 S. E. Repr. 819); Harriman v. Ry. Co., 45 Ohio, 11; R. R. Co. v. Derby, 55 U. S. 468; Reinke v. Bentley, 90 Wis. 457 (63 N. W. Repr. 1055); Driscoll v. Carlin, 50 N. J. L. 28 (11 Atl. Repr. 482).
    The law in Pennsylvania is well settled upon this subject. Disobedience of instructions is no defense and the master cannot thereby relieve himself of liability: McClung v. Dearborne, 134 Pa. 396; Phila., etc., R. R. Co. v. Brennan, 17 W. N. C. 227; Guinney v. Hand, 153 Pa. 404; Ahern v. Melvin, 21 Pa. Superior Ct. 462; Whaley v. Bank, 28 Pa. Superior Ct. 531; Brennan v. Merchant & Co., 205 Pa. 258.
    November 21, 1910:
    Even if it be conceded, for the purposes of argument only, that the minor plaintiff was a trespasser as against the Pennsylvania Railroad Company that would be no defense to this action: Daltry v. Media Electric Light, etc., Co., 208 Pa. 403; Walsh v. Rys. Co., 221 Pa. 463.
    The court could not, as a matter of law say, that the janitor was guilty of no negligence in starting this fire on a windy day when children were around and near it, leaving it unguarded, and without giving them a single warning as to the danger: Kay v. Penna. R. R. Co., 65 Pa. 269; Ross v. Traction Co., 224 Pa. 86.
   Opinion by

Head, J.,

This case and that of Bridget McDermott, against the same defendant, post, p. 454, were tried together in the court below and the appeals from the judgments there rendered were argued together in this court on a single paper-book. The questions raised by the appeals are identical, and the opinion in the present case will sufficiently indicate the reasons for the judgment to be entered in both.

The verdict establishes that the injury to the plaintiff was caused by a fire started by the defendant’s servant, to burn the waste paper which had accumulated in its office building of which he was janitor. It is conceded that the gathering and burning of such paper was a duty imposed on the servant by the terms of his employment.

There was also uncontroverted evidence, which a jury could scarce be permitted to reject, that the master had given to the servant specific directions as to the manner in which that duty was to be performed. These instructions were to burn such paper in the furnace in the cellar of the building under his charge. In violation of these instructions, the servant, for some reason or purpose not disclosed by the evidence, carried the papers across the street to a large uninclosed lot owned by a railroad company and there set fire to them and thereupon went away. The lot was but little used by its owner. The testimony tended to show that the children and youth of the neighborhood were accustomed to use it as a playground without objection from the owner.

At the time the fire was started, the plaintiff, a girl of tender years, with some of her companions, was playing on the lot. A stiff wind was blowing and the burning papers w;ere caught up by it and scattered. One of them set fire to the plaintiff’s clothing and she was seriously burned.

The defendant contends that because the evidence discloses that the servant violated his master’s instructions when he undertook to burn the papers on this lot, the law exempts the master from any liability for such act. The soundness of this position is perhaps the most important question raised by the appeal.

That the master must answer for the act of his servant, done by his order or direction, is a principle so widely recognized that none will gainsay it. But the people generally who deal with such servant, or are affected by his acts, cannot know the nature of the instructions specially given by the master. If it be true that where the master directs his servant to perform all the duties of his employment with diligence and care, he thereby relieves himself from any liability for the failure of the servant to obey such instructions, the general principle already adverted to would have but little force or significance. The law whose life resides in the spirit rather than in the letter of the language in which its principles are expressed, places a broader construction on the obligations of the master. Where the act of the servant complained of is done in the performance of the duty he owes to his master or in furtherance of the business of the latter, in legal contemplation he is acting under the direction of the master, and the latter cannot escape liability for the consequences of such act even though the manner of doing it violated the instructions which the servant had received.

If therefore it appears that the act from which the injury resulted was one done in execution of the. duty which the master had imposed on his servant, it is no defense for the former to show that the manner of doing the act was without his knowledge or assent or indeed against his positive direction. And this conclusion seems to follow from two considerations. If the master .leave to his servant a discretion as to the manner in which his duty is to be performed, he must be responsible for the manner in which that discretion is exercised. If he undertake to determine for himself the manner in which his servant shall perform his prescribed duties, the obligation is on him to see that such instructions are carried out and that the servant does not substitute his own methods for those of his master.

The distinction we have endeavored to draw seems to be supported by the text-book writers as well as the decisions of courts of last resort in most jurisdictions. In 1 Thompson on Negligence, 494, the author says: “Such being the nature of the master’s liability, it is immaterial that the servant proceeded without orders touching the particular act; and the master will be liable if the act of the servant was within the general scope or sphere of his employment, even where the servant acted contrary to the master’s express orders. . . . This must necessarily be so. Otherwise the master might claim exemption from liability for his servant’s negligence in nearly every case. It would only be necessary to instruct him to proceed with care, and if he did not do so, the master would not be liable, for it would be an act done against his express orders.” The principle is well stated in Cosgrove v. Ogden, 49 N. Y. 255, thus: “The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” This is the doctrine of McClung v. Dearborne, 134 Pa. 396, in whi^h Mr. Justice Williams uses this language: “It will be seen, therefore, that it is the character of the employment, and not the private instructions given by the master to his servant, that must determine the measure of his liability in any given case.” The binding authority of that case was recognized by this court and the same principle reiterated in Ahern v. Melvin, 21 Pa. Superior Ct. 462, and Whaley v. Citizens’ National Bank, 28 Pa. Superior Ct. 531. It is unnecessary, therefore, to attempt to show by the citation of many cases that this is the rule adopted by our courts of last resort generally.

Applying this principle to the case in hand, we are met at once with the conceded fact that the gathering of the waste papers and the burning of them was the very work which the defendant’s servant was employed to do. It was while doing this act, to wit, burning the papers that he had gathered, that he caused the injury complained of. The servant was performing the duty for which he was employed. He was doing it in obedience to the direction of his master and in discharge of the duties imposed on him, and it was only in the manner of the performance of this duty that he failed to obey his master’s directions. We are of the opinion, therefore, that the master is not exempted from liability for the consequences of his servant’s act on this account.

Neither the plaintiff nor the defendant can be regarded as a trespasser in making such use as they respectively did of the property of the railroad company. The rights of the owner are in nowise involved, and neither of the parties invaded in any respect any right of the other. As to each other they were occupying neutral ground, and each owed to the other the general duty of care according to the circumstances. The tender years of the child removed from the case any question of contributory negligence and no such question is raised. The principle stated is thus declared in Daltry v. Media Electric Light, etc., Co. 208 Pa. 403, where Mr. Justice Mestkezat said: “Conceding that the owner of the property owed no duty of care to either, the parties themselves, however, occupied the same relative position towards him, but an entirely different position towards each other which required that each should exercise towards the other the care demanded by the circumstances.”

Nor are we able to say that the court could have properly declared as a matter of law that the mother, the plaintiff in the other case, was guilty of contributory negligence in permitting her seven year old daughter to play on the lot in question: Johnson v. Reading City Pass. Ry. Co., 160 Pa. 647; Weida v. Hanover Township, 30 Pa. Superior Ct. 424. Whether or not she was negligent under the surrounding circumstances was a question for the jury and was submitted in a charge as to which, in this respect, there is no complaint.

There remains to be considered the answer of the court to the defendant’s fourth point for charge (third assignment). The point was as follows: “Fourth: That the lighting of a fire upon an open lot, even though the wind may have been high and even though the plaintiff and other children may have been upon the premises, is not such an act of negligence as would render the defendant liable in this case. Answer: Refused.” It is doubtless true that in one aspect of the case the act of the defendant’s servant merely in lighting a fire on the lot of the railroad company could not be considered a breach of any duty the defendant or its servant owed to the plaintiff. If it were clear that the effect of affirming the point as it is written would have been but to declare that general proposition, the court might have safely affirmed it. But the court had the right to consider the point in the light of the particular fire which was started and of all the circumstances that existed at that time. If the evidence showed that the day was windy; that the material ignited was combustible in its character, and so flimsy in structure that it would be easily caught up and carried by the wind whilst in flame; and if, under such conditions, the fire would not have been easily, controlled, even had the man who lighted it remained to watch it, we cannot say that the court should have declared, as a matter of law, that the lighting of a fire, under such conditions, did not exhibit want of reasonable care.

Under such circumstances the learned trial court could not fairly be convicted of error because he refused to affirm the. point in the language quoted. Besides, the court had already affirmed the defendant’s second point which was as follows: “Even if the jury should find that Arter, on the day of the accident, carried to the premises of the railroad company a basket of waste paper and set fire thereto, such facts in themselves would not entitle the plaintiff to recover; before any recovery could be had by reason of such act the jury must find that the injury to the plaintiff was the natural and probable consequence of the act.” Moreover, in the general charge the court has thus instructed the jury: “But if you find that Arter did start this fire and that the starting of the fire under the circumstances was negligence on his part, and that the burning of the little girl as she was burned was the reasonable, probable and natural result — a natural result flowing from that negligence — then your verdict should be for the plaintiff.” We are unable to see how the defendant could have asked for a more favorable submission of the vital questions in the case than, that indicated by the language quoted.

With the questions on which their verdict should depend thus clearly and plainly submitted, we are not convinced that there is any reversible error in the refusal of the court to affirm the defendant’s fourth point. The third assignment therefore must be overruled.

Judgment affirmed.


text:
    McDermott v. Consolidated Ice Company, Appellant
    November 21, 1910:
    (No. 2).
   Opinion by

Head, J.,

The controlling questions in this case are identical with those disposed of in the opinion just filed in the case of Catharine McDermott v. Consolidated Ice Company, ante, p. 445. For the reasons there given the assignments of error are all overruled.

Judgment affirmed.


text:
    Blairsville National Bank v. Crabbs, Appellant.

      Banks and banking — Checks—Payment—Lien—Commercial paper— National banks — Act of May 16, 1901, P. L. 19Jf., sec. 27.

    1. In a suit by a national bank against the maker of a check where the plaintiff avers in its statement of claim that it is the “holder of said check for value paid in good faith and without notice,” and the affidavit of defense does not deny this but merely avers that the defendant gave the check in suit to the payee under the representation that the latter was going to a particular city to buy cattle, and that the defendant found out that he did not go, and thereupon stopped payment of the check, and it is admitted that the plaintiff bank had advanced to the payee the full amount of the check, the bank becomes entitled to a lien upon the paper for the full amount thus advanced, and under the Act of May 16, 1901, P. L. 194, sec. 27, must be deemed to be a holder for value to the extent of the lien.
    2. A national bank may lawfully acquire title to commercial paper, although it may be unable to show that it has made a profit upon the purchase of the paper.
    Argued April 28, 1910.
    Appeal, No. 166, April T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 929, on verdict for plaintiff in case of First National Bank of Blairsville v. A. A. Crabbs, doing business as The Locust Grove Farm.

      Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit against the maker of a check. Before Cohen, J. |
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $228.42. Defendant appealed.

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

      S. R. McClure, for appellant.
    The bank was under no obligation to pay the check; paying checks drawn on other banks is not a part of its business as collecting them is: Tibby Bros. Glass Co. v. Bank, 220 Pa. 1.
    It is a well established principle that the right of a drawer of a check to stop payment only ceases with actual payment: German National Bank v. Farmers’ Deposit National Bank, 118 Pa. 294.
    Banks receiving checks for collection are not held to be the owners of the checks, but the ownership of the checks remains with the person who deposited them for collection: Hazlett v. Commercial Nat. Bank, 132 Pa. 118; Rapp v. National Security Bank, 136 Pa. 426; Union Safe Deposit Bank v. Strauch, 20 Pa. Superior Ct. 196.
    As commercial paper the check in question was neither purchased nor discounted by the appellee bank and there rested upon the bank no obligation to deal with this check as if it had been the drawee.
    The light in which plaintiff presents the transaction in its own behalf as a national bank, puts it before us as an ultra vires act and furthermore, an act which under the decisions, the defendant has the right to question: First National Bank of Rochester v. Pierson, 24 Minn. 140; Lazear v. Nat. Union Bank, 52 Md. 78; First Nat. Bank v. Burkham, 32 Mich. 328.

      November 21, 1910:

      U. G. Vogan, for appellee.
    The holder of commercial paper is presumed to be the holder for value unless it be shown to the contrary, and the burden of showing that the holder of a check is not a holder for value paid in good faith rests upon him who asserts it: Penn Bank v. Frankish, 91 Pa. 339; Garden City Nat. Bank v. Filter, 155 Pa. 210; Farmer’s Deposit Nat. Bank v. Western Penna. Fuel Co., 215 Pa. 115; Taft v. Nat. Bank, 172 Mass. 363.
   Opinion by

Porter, J.,

Under the rules of the court below the material averments of plaintiff’s statement not denied by the affidavit of defense were, upon the trial of the cause, taken to be admitted, and the application of that rule established conclusively the following facts. The defendant, on July 27, 1907, made and delivered to John Howith his check for the sum of $200, drawn upon the Mercantile Trust Company, Pittsburg, and payable to the order of said Howith. Howith, the same day, indorsed and delivered the check to the plaintiff bank, and the latter paid to Howith the full amount of the check in cash. The check was in the regular course of business duly presented by the agent of the plaintiff to the Mercantile Trust Company, upon which it was drawn, and thereupon payment was refused, for the reason that payment had been stopped by the defendant, and thereupon the check was protested for nonpayment and due notice given to the defendant. The only evidence offered by the defendant to meet the prima facie case thus shown by the plaintiff, tended to establish that he had made and delivered the check to Howith upon the representation that the latter was going to New York to buy cattle, and the defendant “found out that he didn’t go to New York; so I went down to the bank and found that two of the checks he had gotten cashed and so I stopped payment on the last one.” The court below gave binding instructions in favor of the plaintiff and the defendant appeals.

The defendant did not in his testimony undertake to say that he did not in fact owe Howith the money for which the check was given. His testimony was to the effect only that he gave the check to Howith under the representation that the latter was going to New York to buy cattle, that the defendant found out that he did not go to New York and thereupon stopped payment of the check. The defendant did not testify that Howith was to buy the cattle for the defendant, and the only inference which can fairly be drawn from the testimony is that Ho-with was to buy the cattle upon his own account. Even if it be assumed, however, that the defendant was in no manner indebted to Howith and that the check was merely given as an accommodation to the latter, the utmost that can be said in favor of the defendant is that the check was procured by fraud. The only effect of this assumption would be to place upon the plaintiff the burden of showing that it was a holder of the check for value paid in good faith and without notice of the fraud. This burden the plaintiff had already discharged, for it had averred in its statement “That the said plaintiff is now a holder of said check for value paid in good faith and without notice,” which averment the affidavit of defense failed to deny, and, under the rules of the court below it must be taken as a fact admitted. There can be no profit in discussing whether, under the law, the plaintiff had acquired title to the check, as owner, or was merely the agent of Howith for the purpose of collection. The fact being admitted that the plaintiff had advanced to Howith the full amount of the check, it thus became entitled to a lien upon the paper for the full amount thus advanced, and under the Act of May 16, 1901, P. L. 194, sec. 27, must be deemed to be a holder for value to the extent of the lien: National Bank of Phœnixville v. Bonsor, 38 Pa. Superior Ct. 275.

The contention of the learned counsel for the appellant that if the plaintiff, a national bank, acquired title to the check, as owner, by purchasing it at its full face value, the act was ultra vires and the bank cannot maintain an action on the check, is not well founded. The purchase of negotiable paper by a national bank is as clearly within its legitimate powers as the collection of such paper by the bank as an agent: Taft v. Quinsigamond National Bank, 172 Mass. 363. If the contention of the appellant were sound the whole modern system pursued in the settlement of balances between distant commercial communities, having business relations with each other, would have to be revised. A check which is payable to the order of a person named therein as payee is for all essential purposes a negotiable inland bill, or draft, payable at sight. Through commercial paper of this character financial transactions between banks and individuals in different cities of the world are, to a large extent, carried on. Many banks in interior cities constantly carry a balance in some bank in the city of New York. When a bank or an individual desires to discharge an obligation payable in New York, it or he goes to a bank which has funds on deposit in that city and buys exchange, a draft or check payable to order, which after proper indorsement is sent to the party in New York, thus avoiding the inconvenience of frequent shipments of currency. If the contention of the appellant is correct, a national bank, when it paid par for such a draft, would acquire no title to the paper. There can be no reasonable ground for holding that a national bank cannot lawfully acquire title to commercial paper merely because it is unable to show that it has made a profit upon the transaction. But if the bank has exceeded its powers in this respect, it is for the government to call it to account, and private parties cannot directly or indirectly usurp this function of the government: Farmer’s Deposit National Bank v. Western Pennsylvania Fuel Company, 215 Pa. 115.

The judgment is affirmed.