author: Beaver, J.,

text:
    William E. Beard, by his Next Friend and Mother, Mary E. Beard, v. The Reading City Passenger Railway Company, Appellant.

      Street railways — Negligence of driver — Question for jury.

    Where the evidence was conflicting and the question in the ease was,— Did the driver running upon a descending grade, at the intersection of two streets, with children on each side of his car, whether on the street crossing as alleged by jolaintiff or on the intersecting street as alleged by the driver, exercise care according to the circumstances? clearly such question is for the jury, under all the evidence in the case.

      Practice Superior Ct. — Assignments of Error — Refusal of nonsuit.

    Ho appeal lies to the refusal to grant a nonsuit.
    Argued Nov. 13,1896.
    Appeal, No. 115, Nov. T., 1896, by defendant, from judgment of C. P. Berks Co., June T., 1895, No. 34, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Trespass for a collision. Before Endlich, J.
    The facts appear from the opinion of the Superior Court as follows:
    “ The plaintiff in the court below, an infant of five years of age, by his mother and next friend, brought his action to recover damages from the defendant for personal injuries sustained by him at the intersection of North 10th street, upon which one of its cars was running northward, and Oley street which was to be crossed in the city of Reading. The child was east of the car tracks, on or near the north or far crossing. The grade was descending. The testimony as to the speed of the car was conflicting. It is admitted that the car was not stopped, although the signal to do so is alleged to have been given by the conductor to the driver. A passenger who desired to alight from the car seems to have done so at the south or near crossing, without its stoppage. Several children were standing at the intersection of North 10th and Oley streets, the one injured on the east and two others at least on the west side of the street. A passenger, who was riding on the front platform, says, “ The cars were running at a lively rate.” The driver says that, when the child started to run across (the street), he slacked up much more than when he came down the hill. The case was submitted to the jury in the court below upon the single question as to whether or not the defendant company was guilty of negligence by reason of the rate of speed at which the car was moving at the intersection of the two streets above referred to, under the circumstances. The question of contributory negligence did not in any way appear. No negligence could be imputed to a child of that age, and none was alleged on the part of the mother.”

      Errors assigned were, (1) in not affirming appellant’s first point, which was as follows: “ First. If the jury believe from the evidence that Mahlon Quinter, the conductor, rang the bell before arriving at Oley street, for the driver to stop at the far crossing of Oley street; that the driver was at Ms post with his hand on the brake and the brake at the time was partly on, owing to there being a slight down grade, and that the driver was attending to his duty; that the child when first seen by the driver was standing four or five feet east of the track, either in the street or on the crossing; that the child then started to run across the track, either diagonally northwest, if in the street, or directly west, if on the crossing; that the child fell between the tracks, that the driver, immediately on seeing the child, pulled his lines and drew his brake as hard as he could, and actually stopped the car so that when it stopped the rear platform was in the line of Oley street, or just north of the north crossing over Oley street — there was no negligence on the part of the defendant and the verdict must be for the defendant; ” (2, 8) in refusing binding instructions; (4) in overruling appellant’s motion for nonsuit.

      C. H. Schaeffer, for appellant.
    On the question of defendant’s negligence cited: Fleischman’s App., 174 Pa. 510; Railway Co. v. Connell, 88 Pa. 520; Henne v. Railway Co., 1 Pa. Superior Ct. 311; Swanson v. Crandall, 2 Pa. Superior Ct. 85.

      J. H. Jacobs, with him H. P. Keiser, for appellee.
    The question of negligence of defendant was properly for the jury: Railway Co. v. Foxley, 107 Pa. 537; Railroad Co. v. Horst, 110 Pa. 226.
    December 7,1896
   Opinion by

Beaver, J.,

(after stating the facts as above) :

The only question in the case is as to whether or not the court should have submitted the question of the negligence of the defendant to the jury. This question is raised in various ways. At the close of the plaintiff’s testimony, the defendant moved for a compulsory nonsuit which motion was disallowed. The action of the court in refusing the nonsuit is assigned for error. It has been many times held that no writ of error lies to the refusal to grant a nonsuit: Pownall v. Steele, 52 Pa. 446; Mobley v. Bruner, 59 Pa. 481. The fourth assignment of error is, therefore, overruled.

The sufficiency of the evidence to carry a verdict is, however, raised in the other assignments of error and they are to be disposed of upon their merits. They all cover the same ground, however, and are based upon the theory of the defendant, which it asked the court to charge as a fact, viz: that there was no evidence of negligence and that the plaintiff was, therefore, not entitled to recover. All the defendant’s points were declined. The reasons are not given. The trial judge in the court below may have refused the first of the defendant’s points, because it did not fairly represent the facts of the defendant’s case as presented in its own testimony, because it contained no reference to the speed at which the car was moving, which was the essential element in the case; or because the facts submitted in the point had been substantially passed upon in the general charge. Whatever the reason may have been, we think the point was properly declined.

In regard to the theory of the defendant, based upon its testimony, the court below charged the jury as follows: “The defendant, on the other hand, places the boy in the street, somewhere near the middle of Oley street, somewhat east, if I remember rightly, of the track. The witnesses called for the defense say that the boy was standing there, until the car was pretty close to him, when he suddenly started to run diagonally across the street in front of the car and so close to the car that it was impossible to stop, before striking him, Now, gentlemen, if that is the true story of this occurrence, then, inasmuch as the evidence is that the driver was at his post, with the lines in his left hand and his right hand upon the brake and the brake partly put on, and if you find the position of the boy and his actions were as contended for by the defendant, it would be impossible for me to say where any inference of negligence on the part of the driver could, under those circumstances, be drawn, even though the car may have been going at a lively rate.

“Now, gentlemen, unless you find that the car was traveling at an improper rate of speed, considering the locality, and that the occurrence was due to a consequent impossibility to control the car and stop it in time to avoid a collision, it will be very important for you to determine what was the position-of the boy when first seen and what were his actions. You must look at the situation as it appeared to the driver of the car. If he saw the child standing still at a place outside of the danger line in the progress of the car, then he was not bound to expect that the child would run in front of the car. If the child was standing still, when he saw it at a place where he could safely pass with his car without hurting it, he was not bound to expect the child to turn around and run in front of the car; but, if when the child was first seen it was about to cross the street, if the child’s action gave notice to the driver of an intent on its part to go across the street, of the likelihood of getting in front of the car, if the car was not slackened, then, to be sure, it was the duty of the driver to slacken the car, if he possibly could; and, if it was impossible to do it, on account of improper rate of speed, considering the surroundings, then it might be fair for the jury to impute negligence to the defendant company.” The charge throughout was clear, unbiased and adequate. It put the defendant’s case quite as strongly as it was entitled to have it put and left for the consideration of the jury only the question of the speed of the car and the position of the child, both of which facts were controverted and both of which, under the direction of the court, it was necessary for the jury to find in favor of the plaintiff to justify a verdict in his favor.

The remarks of Mr. Justice Dean, in the recent case of Evers et al. v. Philadelphia Traction Company, 176 Pa. 876, in relation to the speed of street cars at street crossings, although made in a case in which a street railway company, which operates its lines by electricity, was the defendant, are not entirely inapplicable here. He says: “ Whether, under the circumstances, the motorman failed to exercise care was a pure question of fact to be determined by the jury; that the car moved rapidly between crossings was not of itself evidence of negligence, but clearly rapid movement of a car on the streets of a city requires a vigilant lookout by those in charge of it. The companies have the right to expeditiously transport passengers on the surface of the streets but that gives them no exclusive right to the surface occupied by their trades. Neither at crossings nor between them is the public right relinquished. It is only subordinated to that of the railway company. The fact that more caution should be exercised in running over crossings than on the street between them warrants no inference that the car can be run without caution, except on street crossings. In the one case, rapid running is of itself evidence of negligence; in the other it is not.”

The question in this case was, Did the driver running upon a descending grade, at the intersection of two streets, with children on each side of his car, whether on the street crossing as alleged by the plaintiff or on the intersecting street, as alleged by the driver, exercise care, according to the circumstances? This was clearly a question for the jury, under all the evidence in the ease, and was fully and fairly presented to them for their finding in the charge of the trial judge in the court below. All the assignments of error are, therefore, overruled and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Henry A. F. Kohler, Appellant, v. Samuel B. Smith.

      Easements — Obstruction of right of way — Swinging gate.

    Ordinarily the property over which a right of way goes belongs to the owner of the soil who can make any use of it that is consistent with the enjoyment of such right of way by the other party.
    In ordinary cases swinging gates and movable bars across roads that are used in the manner in which this one appears to have been used are not obstructions of an unreasonable character.
    Argued Nov. 10, 1896.
    Appeal, No. 38, Nov. T., 1895, by plaintiff, from judgment of C. P. Berks Co., Oct. T., 1895, No. 51, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Affirmed.
    Trespass for obstructing a right of way. Before EndLICH, J.
    The facts appear from the charge of the court below, as follows :
    “ This suit is brought to recover damages for an alleged obstruction of a private right of way over the land of the defendant. That obstruction is said to consist of two items : In the first case, a swinging gate and movable bars placed across the way; and, in the second place, obstructions at the one end of it near the creek by the placing of stones in such a manner as to make it impossible or very inconvenient to drive through the creek into this lane or way.
    “Now, as to the matter of the swinging gate and the movable bars, I have this to say to you, and, of course, there can be no question that the jury is bound by the law as given to it by the court. The evidence seems to establish very conclusively, and I don’t understand that it is disputed by the defendant that it is established by the evidence that the plaintiff has a right of way over this one hundred and thirty-two feet of land of the defendant. The right of way, however, is a right of passage ordinarily, and ordinarily the property over which this right of way goes belongs to the owner of the soil, who can make any use of it that is consistent with the enjoyment of the right of way by the other party. He has a perfect right to put up swinging gates or movable bars, provided that they are not an unreasonable obstruction to the enjoyment of this party’s right of way over his property. In ordinary cases, swinging gates and movable bars across roads that are used in the manner in which this one appears to have been and to be used are not obstructions of an unreasonable character. [They are not ordinarily unreasonable interferences with the right of passage, and I say to you, gentlemen, that there is nothing in the evidence of this case which would justify yon in finding that in this instance an exception to the rule has been shown, to wit, that the gate or bars in this case are an unreasonable interference. Therefore, as far as that item of the plaintiff’s complaint goes, there can be no recovery on his part.] [1]
    That leaves the only question open to you, whether or not there was any obstruction of an improper kind by the placing of stones in the lane near the creek. Now, on that question, gentlemen, you have heard all the evidence, and you will, of course, remember all the evidence on the subject, and you will decide whether, under that evidence, it has been shown that the defendant has placed stones in such a way and in such quantities in this lane as to create a substantial interference with the plaintiff’s right of way over this property. If he has, then you will ascertain what, in dollars and cents, will compensate him for the inconvenience he has already suffered.
    If, however, there is no proof, in your, judgment, of the existence of an interference by reason of the placing of stones there, then your verdict will have to be for the defendant.
    And now, gentlemen,. that is the only question there is in this case that is submitted to you for your detemination, and as I said before, you will consider all the evidence on the subject and return a verdict that will do justice to both parties.
    Exception for plaintiff.

      Verdict for defendant. Plaintiff appealed.

      JSrror assigned, was to a portion of the general charge, reciting same.

      Caleb J. Bieber, for appellant.
    The erection of a swinging gate.was an obstruction of the easement. The general rule relative to such case in the charge of the court is laid down in the case of Hartman v. Fick, 167 Pa. 18. See also Connery v. Brooke, 73 Pa. 84; Ellis v. Academy of Music, 120 Pa. 622. In the case of Baker v. Frick, 45 Md. 337, will be found a careful review of all leading authorities bearing upon the right of the obstruction of a way by the erection of a gate.

      Jefferson Snyder, with him B. F. Dettra, for appellee.
    December 7, 1896:
   Opinion by

Beaver, J.,

The plaintiff below, who is the appellant here, claimed by prescription an easement in, being the right of way over, the tenement of the appellee. It is not claimed that there was any express grant. The evidence as to the prescriptive right to the easement or right of way is not strong but we do not understand it to have been seriously controverted in the court below. The plaintiff was, therefore, entitled to the enjoyment of such an easement as had been acquired by him and Ins predecessors in title by prescription. There is evidence as to what the character of the right of way was. There was apparent necessity by the owner of the servient tenement, who was the defendant below, to use bars at the entrance to the so-called lane, through and over which the. plaintiff claimed a right to pass, so as to restrain his cattle whenever necessary, and there is evidence produced both by the plaintiff and the defendant that posts and bars were maintained for that purpose. Sometimes the bars were kept closed. At other times they were removed and the way left open, but it cannot be doubted that the defendant and those under whom he claimed used the bars whenever it became necessary for him to do so for his own convenience and protection. The present defendant erected a swinging gate at the point at which the posts and bars had been previously erected and maintained. In the trial of the case in the court below, two obstructions were complained of, the one the swinging gate erected by tbe defendant and the other the placing of stones at or near the bank of a small stream which was necessary for the plaintiff to cross in reaching his timber land, which was the terminus ad quod of the right of way.

In regard to the gate, the court below charged the jury as follows: “ The right of way, however, is a right of passage ordinarily, and ordinarily the property over which this right of way goes belongs to the owner of the soil who can make any use of it that is consistent with the enjoyment of the right of way by the other party. He has a perfect right to put up swinging gates or movable bars, provided that they are not an unreasonable obstruction to the enjoyment of this party’s right of way ovér his property. In ordinary cases swinging gates and movable bars across roads that are used in the manner in which this one appears to have been used are not obstructions of an unreasonable character. They are not ordinarily unreasonable interferences with the right of the passage and I say to you, gentlemen, that there is nothing in the evidence of this case which would justify you in finding that in this instance an exception to the rule has been shown, to wit, that the gates or bars in this case are an unreasonable interference; therefore, as far as that item of the plaintiff’s complaint goes, there can be no recovery on his part.” The appellant assigns this part of the charge of the court as error.

The question as to whether or not the stones placed in the lane near the creek were or were not an obstruction was left to the jury and their verdict was for the defendant.

Mr. Washburn, in his treatise on the American Law of Easements and Servitudes, third edition, 1873, page 264, says: “It seems to be now settled that, if the landowner is not restrained by the terms of the grant of a right of way across his lands for agricultural purposes, he may maintain fences across such way,' if provided with suitable bars or gates for the convenience of the owner of the way. He is not obliged to leave it as an open way nor to provide swinging gates, if a reasonably convenient mode of passage is furnished.” The same principle was practically decided in Pennsylvania in Hartman v. Fick, 167 Pa. 18, in which a reference is made to Connery v. Brooke, 73 Pa. 80. In the latter case, Mr. Justice Williams, in delivering the opinion of the court, says : “ But what is meant by the free use of a passageway? Does it necessarily mean that there shall be no gate or bar hung across it; or if there is, that it shall always be kept open ? Has not the owner of a passageway its free use, if he hangs a gate across it at its intersection with the street? If I grant the free use and the right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading into it or keep it wide open,in order that the grantee may have the free use of it ? Or can he not have its free use, if he can enter it by opening the door whenever he chooses ? Without doubt, I cannot unreasonably obstruct Ms úse of it; but, if the door amounts practically to little or no inconvenience, it seems to me that it is not necessarily a wrongful obstruction. ... A gate may be so placed as to be a practically unreasonable obstruction to the free use of a passageway, and it may be so constructed and placed as not to amount to any practical obstruction to its- use. Whether the gate in this case amounted to a wrongful obstruction was, therefore, a question of fact for the juay. If it was not a practical hinderance and, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the passageway, then it was not a wrongful or illegal obstruction for which an action will lie.” In the case before us there was no evidence that the gate erected by the defendant was a practical hinderance nor that it was, under the circumstances, an unreasonable obstruction to the plaintiff’s use of the right of way across the defendant’s unenclosed field. There is some evidence on the part of the plaintiff that it was an inconvenience to open the gate, but his explanation shows that it was only the usual and necessary inconvenience which was caused by descending from Ms wagon, opeMng the gate, driving through it and closing it again. This we think, under all the authorities, cannot be considered in any sense as an unreasonable obstruction nor a hinderance to the free use of the way by the owner of the easement. The court below was, therefore, correct in that part of the charge to the jury which is complained of and, as this is the only assignment of error, the judgment is affirmed.


text:
    Charles B. Boice, Appellant, v. Elizabeth E. Zimmerman and Charles Umsted.

      Evidence — Lease—Parol evidence to define the leased property.

    When an inspection of a lease does not disclose a self-contained description of the property intended to be leased, and something outside the description itself is necessary to determine just what is included in its terms, parol evidence is admissible to apply the description in the lease to the land intended to be included therein.

      Landlord and, tenant — Lease—Construction of — Evidence.
    The question whether certain tenant houses were included in the farm premises intended to be leased, being the subject of parol evidenpe to define the purport of the written lease, evidence as to the respective rental values of the farm and the tenant houses was admissible, as bearing on the issue which was, — what was actually rented; and the instruction of the court was pi'oper, which directed the consideration of the jury to the theoiy of the case as affected by such rental values of the tenant houses and the farm, as bearing upon the probability of the former having been included in the premises intended to have been let.

      Practice, Superior Court — Assignments of error — Isolated sentences.

    Isolated and disjointed sentences and parts of sentences from an entire paragraph, which should be read as a whole, should not be assigned for error, as they do not fairly represent the substance of what was said by the court.
    Argued Nov. 18, 1896.
    Appeal, No. 30, Nov. T., 1896, by plaintiff, from judgment of C. P. Chester Co., Oct. T., 1894, No. 53, on verdict for defendants.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Replevin under landlord’s distraint. Before Hemphill, J.
    The facts appear from the opinion of the Superior Court as follows:
    “ The plaintiff below, who is the appellant here, became the lessee of one of the defendants, who is tenant for life of a farm described in a written lease duly executed by them both as. ‘ All that certain messuage or tenement and tract of land situate in the Township of East Fallowfield aforesaid, adjoining lands of Alexander Mode, Strode Powell, William L. Hanthorn, Jonathan W. Updyke and others, containing about 138 acres.’ No draft of the property is presented in the appellant’s paper-book nor have we been able to find in the-testimony any evidence as to whether the adjoinders named surrounded the property completely, without including the ‘ and others.’ On the one side of the farm fronting a public road stand three tenant houses, occupied at the time the lease was written and subsequently by tenants who were not employed upon the farm, who leased from and paid their rent to the defendant. At the expiration of - a year after the original lease was written and after a lease for another year had been signed, the plaintiff claimed that the tenant houses were included in the lease. Whether the farm contains one hundred and thirty-eight acres, excluding ,the lot upon which these houses are built, or whether it requires the lot to be included to make the full complement of one hundred and thirty-eight acres described in the lease does not appear in the testimony. When the first payment of rent under the lease for the second year became due, the tenant failing to pay, a landlord’s warrant was issued to compel payment of the balance alleged to be due, and his personal property levied upon. The plaintiff issued his writ of replevin, making the lessor in his lease and the officer who had made the distress defendants. An avowry was pleaded and the question for determination in the trial was whether or not any rent was due from the lessee to the lessor.”
    Verdict for defendants, finding the amount of rent due $173.77, and that the value of-goods distrained upon is $867.50. Plaintiff appealed.

      Errors assigned were, (1) in the ruling set forth as follows in the bill of exceptions sealed:
    The witness, J. Ellis Zimmerman, on the stand:
    “ Q. What in your judgment is a fair rental for this property from your knowledge and experience with it ? ”
    Mr. Talbot: I object.
    The Court: I think it is admissible.
    To which ruling counsel for plaintiff excepts and prays the court to seal a bill of exceptions thereto which is done accordingly.

      Jos. Hemphill, judge: “Q. What in your judgment, based on your experience and knowledge of this property, is a fair rental value per year under the conditions of this lease ? A. I think $350 is a very reasonable rent.”
    (2) In the general charge of the court as appears by the bill of exceptions wherein he said to the jury: “ The lease here does not specifically, as I gather it from the reading of the lease, describe the tenant houses as being a portion of the property leased by Mrs. Zimmerman to Mr. Boice .... Standing then upon the lease alone and looking to that we find nothing therein to enable us specifically to state whether these tenant houses passed under that demise, under that lease from Mrs. Zimmerman to Mr. Boice.”
    To which part of the general charge the plaintiff’s counsel excepted and prayed the court to seal a bill of exceptions thereto which is done accordingly.
    (3) In the general charge to the jury as appears by the bill 'of exceptions wherein he said: “ So that standing on the lease alone, with this testimony, if believed by you, you would be justified in finding that these tenant houses did not pass under the lease.”
    To which part of the general charge the plaintiff’s counsel excepted and prayed the court to seal a bill of exceptions thereto which is done accordingly.
    (4) In his general charge to the jury as appears by the bill of exceptions wherein he said: “ Whether Mr. Zimmerman overlooked the instructions he intended to give and thought he had given to the ’Squire, or whether the ’Squire did not hear that or omitted by mistake the instructions given to reserve these tenant houses I say is not material.”
    To which part of the general charge the plaintiff’s counsel excepted and prayed the court to seal a bill of exceptions thereto which is done accordingly.

      D. Smith Talbot and R. J. Monaghan, for appellant.
    The express mention of the farm matters does not imply exclusion from the other tenements : Jack v. McIntyre, 12 Clark & Fin. 156; Wood’s Landlord and Tenant, p. 308; Hay v. Cumberland, 25 Barb. 595; Burton v. Brown, Cro. Jac. 643.
    Even if there were an attempt at an express exception or reservation the same would receive a narrow construction : Smith’s Landlord and Tenant, p. 103; Taylor’s Landlord and Tenant, (7th ed.) sec. 161.
    The line of another property may serve as a monument so as to control courses and distances in the description of land in a conveyance or lease whose boundaries are to be fixed: 4 Sharswood & Budd’s Leading Cases on Real Prop. 362.
    The evidence taken on the trial was not of that character which would justify the court, sitting as a chancellor, to permit the jury to reform the lease and exclude the tenant houses from the premises expressly described in the lease: Phillips v. Meily, 106 Pa. 536 ; Thomas v. Loose, 114 Pa. 35 ; Barber v. Mullen, 176 Pa. 331; Hand v. Russell, 1 Pa. Superior Ct. 165; Brewery Co. v. Thomeier, 2 Pa. Superior Ct. 354.
    “ Parol evidence is not admissible to show that land, which, according to the description of the boundaries in the lease, is included in the demise, is not so in point of fact:” Wood’s Landlord and Tenant, p. 309.
    In such a case as tins the tenant may offer in evidence anything arising out of the lease which tends to show that the rent claimed by the landlord is not due : Morris on Replevin (2d ed.), 165; Fairman v. Fluck, 5 W. 516; Weber v. Rorer, 151 Pa. 487.

      Alfred P. Reid, for appellee. —
    The lease did not explicitly describe the premises. Hence, whether the tenant houses were embraced in the lease of not was open to parol proof, and was for the jury: Thompson on Trials, par. 1461; Steigleder v. Marshall, 159 Pa. 77.
    “ Where the description in a deed is so vague and indefinite that it was necessary to resort to other evidence for the purpose of determining the location of the dividing lines, it became a question for the jury under all the circumstances : ” Smith v. Horn, 168 Pa. 372; Risdon v. City of Philadelphia, 18 W. N. C. 73; Centenary M. E. Church v. Cline, 116 Pa. 146; Smith & Fleck’s Appeal, 69 Pa. 474; Peart v. Brice, 152 Pa. 277; Ferguson v. Staver, 33 Pa. 411; Wood’s Landlord and Tenant, 468.
    “ It is competent to show by parol evidence to what premises the lease applies, although upon its face it is clearly enough expressed, yet, an ambiguity arises from extrinsic circumstances:” Wood’s Landlord and Tenant, p. 467: Sargent v. Adams, 3 Gray, 72.
    Wherever the terms of an agreement are equivocal or doubtful, or the language of a contract is ambiguous, the interpretation of it by the parties is entitled to great, if not controlling, influence: Straus & Son v. Wanamaker, 175 Pa. 213; Jackson v. Perrine, 35 N. J. L. 137.
    December 7, 1896
   Opinion by

Beaver, J.,

(after stating the facts as above) :

If the tenant houses were included in the lease and the lessee were entitled to the rents thereof, there would have been practically nothing due. If, on the other hand, the tenant houses were not included in the lease, then the lessee was in default, the landlord’s warrant was properly issued, and the defendants entitled to recover.

The only question involved in the case was, therefore, the simple one as to whether or not these tenant houses were included in the lease of the 16th of March and the lease for the following year which, although not printed in the paper-books, seems to have been dated prior to the 31st of March, 1894, and was in the main in the terms and language of the lease of the previous year. It is evident from an inspection of the lease itself that it does not include a self-contained description of the property intended to be leased. Something outside the description itself is necessary to determine just what is included in its terms. Under the authority of Ferguson v. Staver, 33 Pa. 411, and many later cases, parol evidence was undoubtedly admissible to apply the description in the lease to the land intended to be included therein. The plaintiff could have shown by parol testimony that the description included the tenant houses and the defendant might have shown that it did not. Neither party seems to have done this directly in a way that is in any sense satisfactory. Parol evidence was admitted by the court without objection to show that the tenant houses in the original negotiations made by Ellis Zimmerman, on behalf of his mother, with the lessee were excluded, and that the scrivener was directed to exclude them in the written lease. Whatever the object of the appellee in offering and introducing this testimony, it was evidently considered by the court as insufficient to be submitted to the jury for the purpose of reforming the lease on the ground of mistake, but was allowed to be considered as bearing upon the question of the application of the description contained in the lease to the premises intended to be included therein, and for this purpose we think it was competent and relevant.

The first assignment of error relates to the admission of the testimony of J. Ellis Zimmerman as to the rental value of the farm. We think the evidence was competent and was properly received as bearing upon the. question as to whether or not the houses were included in the written lease under the description contained therein. If the farm were actually worth $350 and the rents received from the tenant houses were equal to about the one half of that amount, the inference would be almost irresistible that the houses were not included and that there had been no intention to include them in the description contained in the written lease.

The portions of the charge embraced in the second and third assignments of error are entirely proper, when read in connection with the remainder of the paragraph from which they are taken. After a careful reading of all the testimony of both sides, so far as printed, relating to the description of the property contained in the lease and its application to the premises, we cannot now determine, as the court below was unable to determine from the lease itself, whether the tenant houses were included in the written lease or not. These two assignments select sentences and parts of sentences from an entire paragraph of the charge which should be read as a whole. Although correctly quoted as to language, they do not fairly represent the substance of what was said by the court. The whole paragraph is as follows :

“ The lease.here does not specifically, as I gather it from the reading of the lease, describe the tenant houses as being a portion of the property leased by Mrs. Zimmerman to Mr. Boice, nor does it include the tenant houses by description of metes and bounds. As I recall the description of the property in the lease, it, by adjoining owners, describes the property as being bounded by so and so, and containing one hundred and thirty-eight acres. Standing then upon the lease alone, looking to that, we find nothing therein to enable us specifically to state whether those tenant houses passed under that demise, under that lease from Mrs. Zimmerman to Mr. Boice. Interpreting it then by itself and without reference to any parol evidence, the law would be that, if these tenant houses had been used in connection with the farming operations or were necessary to the enjoyment and use of the farm, they would necessarily pass under the general terms of the lease to the tenant. To satisfy you that they had not been used in connection with tRe farm and that they were not necessary to its use and enjoyment, the defendant here, Mrs. Zimmerman, called her son Ellis Zimmerman, whose testimony on that point at least 'is not contradicted, and tells you that for the eight years which he was on the property these tenant houses were never used as tenant houses for farm purposes or in connection with the farm, and that they were not necessary to the use and enjoyment of the farm, but were rented to laborers who worked outside of the farm property ; so that, standing on the lease alone, with this testimony, if believed by you, you would be justified in finding that these tenant houses did not pass under the lease, for the simple reason that they had not been used in connection with the farming operations for a period of at least eight years, and that they were not necessary to the use and enjoyment of the farm property, which is corroborated I may say by the fact that they were not used during the whole period that Mr. Boice remained upon the property in connection with farm operations. So, not being necessary to the use and enjoyment of the farm and not having for some years been used in connection with it, I say you would be justified in finding in favor of the defendant, unless the contract between the parties was different.” There is no error in this, considering the theory of the case upon which it was submitted to the jury.

The quotation from the charge of the court in the fourth assignment of error is also incomplete and does not correctly represent the thought which the trial judge intended to convey. After commenting upon the testimony of Ellis Zimmerman in regard to the negotiations with the plaintiff, in which it was alleged that the tenant houses were specifically excluded, and that in giving direction to the scrivener for the preparation of the lease, he was directed to exclude them, and that of ’Squire Cloud who acted as the scrivener, the trial judge in his charge goes on to say: “So there is a conflict of testimony there, but not a very material one, I take it, because whether Mr. Zimmerman overlooked the instructions he intended to give and thought he had given to the ’squire, or whether the ’squire did not hear them or omitted by mistake the instructions, if given, to reserve these tenant houses, I say is not material. The material point in issue is, what was the contract between the parties ? ” In othei words, the question as to whether a mistake was made is not material. The real question is, what was included in th.e description contained in the contract ? Under all the facts of the case, the question of the application of the description contained in the writing was for the jury under proper instructions. Such instructions, as we view the case, they had. Their finding should not be disturbed.

It may be proper to say here that it would have been much more satisfactory to us, if the letters which were offered in evidence by the defendant, dated respectively October 19,1893, February 9, 1894, and March 31, 1894, and October 5,1894, and the second lease offered in evidence by the plaintiff, had been printed with the other testimony in the case.

A careful review of the entire case fails to disclose any error and the judgment is, therefore, affirmed.


author: Wickham, J.,

text:
    Leah Shober v. Harrison Brothers & Co. and Andrew H. Hershey, Sheriff, Appellants.

      Fraud — Jurisdiction, equity — Injunction to restrain sheriff's sale.

    A fraudulent concealment of the husband’s title in the name of the wife often lies at the bottom of cases where real estate standing in the wife’s name is levied upon by the husband’s creditors, while on the surface her title may be apparently good.
    The jurisdiction of equity for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals was never intended to be used to obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding, against right and justice, to use the process of the law to the injury of another that equity intervenes to stay his hand. To adopt another rule would lead to a constant use of the powers of equity to hinder and delay the collection of honest claims and to prevent the creditor from reaching the marrow of a fraud.

      Husband and wife — Wife's title to real estate — Husband's creditors— Sheriff's sale — Injunction.
    Where real estate standing in a wife’s name is levied upon as the husband’s property, a bill filed by the wife to enjoin the sale will not be sustained where the answer of the execution creditors disputes the alleged ownership of the wife and alleges that title was taken in her name to defraud creditors. Such a case is not within the exception recognized in Hunter’s Appeal, 40 Pa. 194, and the'parties will be left to their legal remedy.
    Argued Nov. 10, 1896.
    Appeal, No. 54, Nov. T., 1895, by Harrison Bros. & Co., from decree of C. P. Lancaster Co., Equity Docket, No. 3, p. 97, making perpetual the preliminary injunction and restraining defendant from selling by sheriff’s sale certain real estate.
    Before Rice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Reversed.
    Bill to enjoin sheriff’s sale.
    The facts sufficiently appear from the opinion of the Superior Court.

      Errors assigned were, (1, 2) in not dissolving preliminary injunction and maldng the same perpetual.
    (3) In finding that the said injunction issued before the day fixed for the sale. The fact is, that said injunction was only asked for and issued on the day fixed for the sale, viz: January 19,1895, and only a few hours before the hour for the sale.
    (4) In not finding that in waiting so long, the plaintiff was guilty of laches, and not entitled to the relief she asked.
    (5) In finding that plaintiff, at the time of her marriage, in 1885, had about $2,300; that she received about $600 from her husband’s mother; that at the time of her husband’s assignment he owed her $975, for which she held his note, etc., and got money from other sources.
    (6) In finding “ that the testimony shows clearly that this purchase money, for this property, was paid by Leah Shober, the complainant, and is uncontradicted.”
    (7) In finding “that respondents presented no testimony, nothing to indicate or show that the purchase money was not paid by Leah Shober, nor to show that her husband, John A. Shober, had any right or title to, or interest in this property upon which they have levied, and were about to sell as his property.”

      (8) In not finding that the title to the real estate in dispute was, and is, in John A. Shober, as whose property the same was levied upon, condemned, and on the point of being sold, in paying defendants’ judgment.
    (9) The court should have found that defendants’ answer was responsive to plaintiff’s bill, and was not overthrown by the testimony of two competent witnesses, viz: tbe plaintiff and her husband, and, therefore, should have found the averments in said answer as true.
    (10) In not finding that the purchase money of the real estate in question was paid for, either directly or indirectly, by John A. Shober’s money; and the deed thereto, put in the name of tins plaintiff, for the purpose of shielding, unlawfully and fraudulently, said real estate from being made amenable to defendants’ judgment, and the claims of others, against said John A. Shober.

      William R. Wilson, for appellants.
    The answer of appellants is responsive to the bill, and, therefore, conclusive in respondents’ favor, unless it is overcome by the satisfactory testimony of two witnesses, or - of one witness, corroborated by other circumstances and facts which give it a greater weight than the answer. Burke’s Appeal, 99 Pa. 350; Huston v. Harrison, 168 Pa. 136; Bailie v. Bailie, 166 Pa. 472.
    The charge is one of fraud, which is always for the jury: Loucheim Bros. v. Henszey, 77 Pa. 305.
    Bispham’s Equity, p. 258, par. 201, lays down the law that “ fraud may be inferred without direct proof from the attendant circumstances:” Kaine v. Weigley, 22 Pa. 179; Kinzer v. Mitchell, 8 Pa. 80; Glessner v. Patterson, 164 Pa. 224.
    As a general rule, it has been the practice in Pennsylvania for a judgment creditor to seize and sell, in satisfaction of his debt, any real estate in which his debtor has, or is believed to have, an interest. Whenever such interest is alleged, the creditor is permitted to proceed with his execution, and if there be any question in regard to the title, it may be raised in an action of ejectment: Davis v. Michener, 106 Pa. 395; Taylor’s Appeal, 93 Pa. 21; Winch’s App., 61 Pa. 424. See also Artman v. Giles, 155 Pa. 416.
    The plaintiff was guilty of gross delay and laches: Butler v. Egge, 170 Pa. 239.

      George Nauman, for appellee. —
    That an injunction will lie to restrain the sale of a wife’s real estate at the instance of her husband’s creditors is now the settled law of the state: Hunter’s Appeal, 40 Pa. 194.
    The fact that a husband acts as agent for his wife in carrying on a business, in buying and selling, and in investing her money, does not, without her consent, transfer her property to him, or render it liable for his debts, and this although the business be conducted in his name : Troxell v. Stockberger, 105 Pa. 405; Shuster v. Kaizer, 111 Pa. 217.
    December 7, 1896:
   Opinion by

Wickham, J.,

On October 24, 1884, John A. Shober made an assignment, for the benefit of his creditors, to Henry Baumgardner. Harrison Brothers & Company, the appellants here, had a suit pending against Shober at the time, in which they obtained judgment on November 14, 1884. It is conceded that the assigned' estate paid less than eleven per cent of the assignor’s debts.

For many years before the assignment Shober had in his employ, in his paper factory, Leah Derredinger, whom he married in July, 1885. She and he testify that her wages averaged from $30.00 to $35.00 per month. In 1886, according to their testimony, the wife established the husband in the junk business, as her agent. This business was conducted in her name, but she appears to have known little about its details, the husband looking after everything and handling all the money. It was continued until 1891. Out of it they supported themselves and their two children, and when they retired, in the year last mentioned, they were possessed of $2,000 worth of real estate, purchased for $1,800 in the name of the wife, in 1888, and at least $6,000 invested in her behalf in mortgages. Two of these' mortgages, amounting to $2,400, it seems were acquired as early as 1889. It is scarcely to be wondered at that the appellants thought such accumulations could hardly have been made in the junk business, in so short a time, through the unaided management of one who had utterly failed in the conduct of his own affairs. They, therefore, in October, 1894, issued a writ of fieri facias on their judgment, which had been kept alive by revival, and caused a levy to be made on the real estate abovu mentioned. The property was condemned, and a writ of venditioni exponas issued, -whereon it was advertised to be sold on January 19, 1895. A few hours before the time fixed for the sale, Mrs. Shober filed her bill in equity against the appellants and the sheriff, alleging that she was not only the nominal but as well the real owner of the property, it having been paid for out of moneys not derived from her husband, and asking that the defendants in the bill be enjoined from making the sale. A preliminary injunction was granted, which was afterwards made perpetual as against the appellants, the sheriff, who never should have been joined, having in the meanwhile been dropped out as a defendant, by amendment. Not only were the appellants enjoined, but, notwithstanding the laches of the plaintiff and the needless expense incurred by the improper joinder of the sheriff, they were required to pay all the costs of the proceeding.

The appellants’ answer denies that the real estate levied on was paid for by the wife, out of her own separate estate, and alleges that the purchase money was paid by the husband and the title taken in her name to defraud the appellants and other creditors. The case was heard on bill, answer, replication and the uncorroborated testimony of Shober and wife.

The law presumes that the husband is the true owner of the property, and the wife’s title must be established by clear and satisfactory evidence. She holds the laboring oar, and the presumption above referred to is not affected by the late statutes enlarging her rights and liabilities: Campe v. Horne et al., 158 Pa. 508 ; Endlich and Richards on Married Women, 28.

In Hunter’s Appeal, 40 Pa. 194, a wife filed a bill in equity, asking that certain judgment creditors of her husband might be enjoined from selling on execution her patrimonial estate. The defendants neither pleaded, answered nor demurred. For this reason the Supreme Court reversed the decree of the court below, refusing the injunction and dismissing the bill, and remitted the record with directions to proceed in the case according to equity. At the same time, Mr. Justice Thompson plainly intimated that the decision is not applicable to cases of disputed ownership. In Winch’s Appeal, 61 Pa. 424, decided while the distinguished jurist above named was yet on the bench, Mr. Justice Agnew says: “ Where the title of the wife is disputed, and where the creditor has a right to proceed against the property to test her title, it is error to assume jurisdiction and enjoin against the creditor’s execution, and thus to withdraw contested facts from a trial by jury. To do this is to deny the undoubted right of a creditor to sell whatever interest he believes the husband has in the property. A fraudulent concealment of his title, in the name of the wife, lies at the bottom of such cases, while on the surface her title may be apparently .good. The jurisdiction given to a court of equity for the prevention or restraint of the commission of acts contrary to law and prejudicial to the rights of individuals, was never intended to be used to obstruct the collection of debts. It is only where the creditor is clearly and undeniably proceeding against right and justice to use the process of the law to the injury of another that equity intervenes to stay his hand. To adopt another rule would lead to a constant use of the powers of equity to hinder and delay the collection of honest claims and to prevent the creditor from reaching the marrow of a fraud. The case of Hunter’s Appeal, 40 Pa. 194, affords no countenance to this decree. There the exclusive ownership of Mrs. Hunter, in her own right, was not denied by plea, answer or demurrer.”

The same rule was enforced in Taylor’s Appeal, 93 Pa. 21, Mr. Justice Sterkett saying, “ In Hunter’s Appeal, 40 Pa. 194, an injunction restraining the sale of a wife’s real estate on an execution against her husband was sustained. But the decision was put on the ground that the separate property of a married woman is expressly exempted by statute from levy and sale for the debts of her husband, coupled with the fact, admitted by the pleadings, that the land levied on belonged exclusively to his wife. This fact was a controlling influence in the case. In Winch’s Appeal, supra, where the title of the wife was disputed, the court refused to restrain the creditor from proceeding with his execution against the alleged interest of the husband, and thus preparing the way to test the title, if it became necessary.”

The above decisions are cited and recognized in Davis v. Michener, 106 Pa. 395, where it was held that equity will not interfere save where the title is undisputed or admitted. When, in any case, it is seriously denied, the controversy must be determined in ejectment. • Is the wife’s title seriously disputed here ? Of this there can be no question. We have first the legal presumption, not raised by the facts in Hunter’s Appeal, that the purchase of the real estate levied on was made with the husband’s money, which presumption the wife is required to meet and overcome. Second, there is the allegation in the appellant’s answer, which is consistent with and sustained by the presumption, that the property was paid for by money of the husband and title taken in the wife’s name in order to defraud his creditors. Had the matter stopped here, we think it could not be said, quoting from Hunter’s Appeal,- — -words adopted in the later cases, — that the creditors are “ clearly and undeniably proceeding against right and justice.” It should be added, that conceding it to be true under the authority of Socher’s Appeal, 104 Pa. 609, that the denial, in the answer of the appellee’s allegation of payment of the purchase money, being based merely on information and belief, may not be evidence for the appellants so as to require the appellee to establish her case, hy more than one witness, yet the dispute raised by the pleadings alone, made the case one for a jury. The appellants, under the circumstances disclosed by the bill and sworn answer, were not bound to offer evidence. To require them to do so would compel them to try their case in limine. They might rely on the presumption of the husband’s ownership, so far as creditors’ rights are concerned. In the language of the present president judge of tluis court, used in Mahle v. Kurtz et al., 6 Kulp, 157, “ It is not our duty at this time to try the plaintiff’s title and to declare whether it is good or bad, but simply to inquire whether there is such a dispute concerning it, as justifies the defendants in proceeding to test it in the usual way. We are unahle to say that the defendants’ answer does not raise'a fair dispute.”

If, however, we turn to the testimony of Shoher and wife, it is by no means clear that the latter has made out her title. They both testify that, at the time of the assignment, Shober owed the wife (then Miss Derredinger) for wages, $975, secured by his note, and that this sum was paid the wife at sometime thereafter by Baumgardner. • How she managed to get the full amount of her claim out of an estate which, admittedly, paid scarcely more than ten per cent of the indebtedness against it, is not explained by the evidence. In the printed argument of her counsel, it is conceded that the note was never presented to' or passed upon by the auditor appointed to distribute the balance shown by the assignee’s account. It is true, that, in the same connection, it is asserted that Baumgardner paid it because he had goods from some one, whose name is not disclosed, to use for that and another purpose; but this is not evidence. Neither Baumgardner nor Mr. Nauman, the latter of whom, according to Shober’s testimony, also knew about this matter, was called on to testify. The husband further says, that the note was turned over to Baumgardner. The wife states, in effect, that she destroyed it not long before she testified. It may be that all these things can be easily explained before a jury, which is the proper tribunal to hear and decide them. As it is, they need reconcilement and explanation.

In addition to the $975 just spoken of, Mrs. Shober testifies that when she was married she had about $375 in cash, being a part of her earnings, and that her grandmother, now dead, gave her $375; and Shober says that his aged and invalid mother, who is also dead, in January, 1885, when he told her of his approaching marriage to Miss Derredinger, began sending the latter, through him, sums of money, and inside of six or seven months, thereafter, had turned over to her prospective daughter-in-law $600, in gold and silver — the little savings of a lifetime. We need express no opinion respecting the probability or improbability of the latter statement. It, too, is one to be considered by a jury.

In the manner above mentioned, the Shobers account for the $2,295 that they allege the wife turned over to the husband with which to begin business for her in 1886. The learned judge of the court below lays stress on the fact, that the evidence for the appellee was not contradicted. It will be easily seen that the testimony relating to the gifts by the grandmother and mother-in-law of the appellee could only be assailed on the ground of alleged inherent improbability. Very often a defrauded creditor has no other resource. In Campe v. Horne et al., supra, the evidence in favor of the wife’s title, under which the plaintiff claimed, was so strong and one-sided that the learned trial judge deemed it his duty to give binding instructions for the plaintiff. The Supreme Court, in reversing the judgment, says that while there was abundance of proof in favor of the title being in the wife, and that the jury might well have found it to be good, yet it was the function of the jury to pass upon the testimony. Let us suppose, for the purpose of illustration, that the Shobers had testified that the $2,295 had been received by the wife, by mail, from some benevolent person unwilling to disclose bis identity, would a jury or a chancellor be compelled, in the light of all the circumstances, to accept the story as absolute verity, because no witness could be found to contradict it? As to the testimony relating to the payment of the f 975 note, it contains elements of improbability to which we have already briefly called attention.

We are of the opinion that this case is not within the exception recognized in Hunter’s Appeal, or any other decided case, and that therefore it was erroneous to grant the injunction.

The decree is reversed, the bill dismissed and the appellee directed to pay the costs.


author: Rice, P. J.,

text:
    Commonwealth ex rel. Levi B. Heisey, Appellant, v. I. N. Risser et al., School Directors of South Londonderry Township, Lebanon County, Penna.

      School law — Mandamus to oust a teacher — Discretion of court below.

    Where the position of teacher in the public schools is actually occupied and the court below has refused to award a mandamus to induct into the place a relator who claims to have been legally appointed thereto, the appellate court would hesitate, were no other obstacles in the way, to say that the court below did not exercise a wise discretion in refusing the writ.
    And where the relator does not show a clear legal right to the position, into which he asks the court to compel the boai'd to admit him, the omission is fatal.

      Statutes — Requirements, when directory and when mandatory — School law — Appointment of teachers — Act of April 11, 1862.
    Where the directions of a statute are given with a view to the proper, orderly and prompt conduct of business merely, the provisions may be regarded as directory, but where the fair interpretation of a statute, which directs acts or proceedings in a certain way, shows that the -legislature intended compliance with such provision to be essential to the validity of the act or proceeding, the statute must be regarded as mandatory. Of this latter nature is the act of April 11, 1862, P. L. 472, and its requirements regarding the appointment of teachers must be strictly complied with.

      Argued November 9, 1896.
    Appeal, No. 23, March T., 1897, by relator, from decree of C. P. Lebanon Co., Sept. T., 1896, No. 153, quashing writ of alternative mandamus.
    Before Rice, P. J., Willard, Wickham, Beayer, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Petition for writ of mandamus. Before Ehrgood, P. J.
    From the record it appears that a petition for a writ of alternative mandamus was filed; the writ issued and served and a motion to quash filed. The petition alleged that the relator was by profession a public school teacher duly licensed by the superintendent of public instruction. That at a duly authorized meeting of the school directors of South Londonderry township on the 20th of June, 1896, the relator was duly elected teacher for the grammar school of Campbelltown, receiving a majority of votes. That subsequently on the 18th day of July, 1896, the school directors held another meeting and elected R. P. Wolfersberger to the same position, it being alleged that the election of the relator on June 20 was illegal by reason of the fact that the board neglected and failed to ascertain and record the names of the members voting for each candidate with the names of the candidate voted for, as required by law. It was further alleged that from the date of the election of the relator a contract was then and there entered into between the relator and the school board, duly signed by the president and countersigned by the secretary, providing for the employment of the relator for the ensuing school term at $40.00 per month.
    Other facts appear from the opinion of the court below.
    Opinion of court below by Ehrgood, P. J.
    The relator is a public school teacher and alleges that on the 20th day of June, 1896, he was elected by the board of school directors of South Londonderry township to the position of teacher of the grammar school at Campbelltown, in said township. It is admitted that his alleged election was by secret ballot.
    The act of April 11, 1862, requires that in the selection of teachers by school directors the affirmative and negative votes, and by whom cast, shall be recorded by the secretary on the minutes of their proceedings [thereby clearly indicating that the teacher must be elected, by open ballot]. The board of directors, recognizing this fact, on July 18, 1896, held auother meeting and declared the election of teachers of June 20,1896, void, and proceeded to elect teachers in accordance with the provisions of the act of assembly, and at such election elected R. P. Wolfersberger to the position of teacher of the said grammar school at Campbelltown, in place and stead of the relator.
    It is admitted that said Wolfersberger is now performing the active duties of said office or position of teacher of said grammar school at Campbelltown aforesaid.
    [If a mandamus to reinstate Ileisey were allowed it would Undoubtedly affect the rights of Wolfersberger who is not-a party to this proceeding.] [3]
    [By these proceedings the relator seeks to have determined which election is binding on the township and who is entitled to the office or position of teacher of the said school. The office or position is not vacant and therefore a reinstatement of relator to the duties of the office is in effect an ousting of Wolfersberger. This is not the office of the writ of mandamus.] [4] We have carefully examined the authorities cited by counsel, together with some others, and have come to the conclusion that this writ must be quashed. And now, September 7,1896, upon consideration of' the petition and motion to quash the writ in this case, the motion to quash is allowed and the writ heretofore issued is set aside and the relator is ordered to pay the costs.
    And now, September 12, 1896, exception to relator.

      Errors assigned were, (1) in not finding that, under the facts set forth in the petition, Heisey’s appointment is binding upon the township; (2) in not finding that the school directors of South Londonderry township are estopped by their contract from denying the validity of Heisey’s appointment; (3, 4) findings in the opinion of the court below, reciting same; (6) in holding that it is not the office of a writ of mandamus to reinstate a teacher to his position when it is occupied by another; (6) in denying relator his only adequate remedy; (7) in quashing the alternative writ of mandamus.

      E. E. McCurdy, for appellant.
    The law is settled that school directors when acting as a board are bound by all their acts as such without regard to the kind of proof, provided it be the best the nature of the case admits of: School Board v. McBride, 22 Pa. 215; Barnett v. School Directors, 6 W. & S. 46; Magill v. Kauffman, 4 S. & R. 317; Bank of U. S. v. Dandridge, 12 Wheaton, 64.
    Though the vote was by secret ballot, that is by dropping into a hat the names of the person voted for, without indicating directly who cast the respective ballots, yet it can easily be proven for whom each director voted.
    The board simply pursued the method • commonly in use in this as well as many other townships for many years.
    The school directors should keep a record and their acts there appear. To record them is a duty to their constituents, but contractors with them cannot object to them merely on the ground of their not being recorded. If it were otherwise, then teachers upon being appointed and before entering into a contract, in order to protect themselves, would be obliged to do what they have no right to do, namely, to demand the right of inspecting the records of the board, which are clearly only for the use of the school board and their constituency, to see if a proper minute is made of the appointment: Belknap v. Miller, 52 Ill. App. 617.
    It was within the power of the school board to make a contract with Mr. Heisey to teach this school, and the contract is not avoided by any irregularity in making it. It might be different if the board would not have had the power to employ a teacher for this school, or if Mr. Heisey had been ineligible: Bidwell v. City of Pittsburg, 85 Pa. 412; McKnight v. City of Pittsburg, 91 Pa. 273.
    “ The defense of ultra vires is never sustained out of regard for the defendants, but only where the imperative rule of public policy demands it: ” Wright v. Pipe Line Co., 101 Pa. 206.
    “ The right of a teacher removed without cause to a writ of mandamus to restore her to her position is not affected by the fact that her position is occupied by another, since the position of teacher is not an office : ” Kennedy v. San Francisco Bd. of Ed., (Cal.) 22 Pac. 1042.

      J. Marshall Funck, for appellee.
    The relator was not lawfully elected and in any event a proceeding by mandamus was not his proper remedy.

      The relator must have a clear legal right: Casey v. O’Day 6 Kulp, 178; Com. v. Commissioners, 2 Parsons, 222.
    “ In order to create a liability under a contract provided for by the common school law, the statutory requisitions must be complied with: ” School District v. Mercer, 115 Pa. 560.
    December 7, 1896:
   Opinion by

Rice, P. J.,

We are not required in this case to discuss or to decide the question whether mandamus will lie to compel a board of school directors to reinstate a teacher who has been unlawfully dismissed from the position to which he was lawfully appointed, or to admit him to such position in the first instance. The question before us is much narrower, and is, whether the board may be compelled to oust a teacher, who, under appointment by them, has entered upon the performance of the duties of the position, and give Iris place to one who has a prior contract with the board, but who has never been admitted to the place. The position of a teacher in the public- school is not an office, and, for the breach of a valid contract employing him there is a remedy by action. But even if it be conceded that it differs from an ordinary contract of employment, so that mandamus would lie in a clear case to admit him to the place to which he was appointed, another very serious question arises where the place is already filled. If this were the only difficulty in the relator’s way, we should hesitate to say that the court did not exercise a wise discretion in refusing the writ. A proper regard for the rights of the incumbent, who was not before the court, as well as for the efficiency and welfare of the school in question, would seem to dictate the course pursued by the court below. For if, as the relator contends, a teacher in the public schools may have a right to the place, as distinguished from a right of action for his salary or for breach of contract, an unseemly conflict, highly detrimental to the welfare of the school, might arise if the respondents were to undertake to oust the incumbent without an adjudication of his right in a proceeding in which he had an opportunity to be heard.

But a fatal objection — waiving all others that might be urged ■ — to the exercise of this extraordinary power in the present case is, that the relator does not show a clear legal right to the position into which he asks ' the court to compel the board to admit him.

The act of April 11, 1862 (P. L. 472), provides: “That no ... . teacher shall be appointed or dismissed .... except by the affirmative votes of a majority of the whole number of the directors or controllers thereof; and .... the names of the members voting, both in the affirmative and the negative, shall be so entered on the minutes of the board by the secretary.” The relator claims that he was elected or chosen a teacher by a majority, but admits that it was by a secret ballot and that the names of the members voting in the affirmative and the negative were not entered on the minutes. Where the directions of a statute are given with a view to the proper, orderly and prompt conduct of business merely, the provision may be regarded as directory. But where the fair interpretation of a statute, which directs acts or proceedings in a certain way, shows that the legislature intended compliance with such provision to be essential to the validity of the act or proceeding, the statute must be regarded as mandatory. Of this latter nature is the statutory provision under consideration. It relates to a power conferred on the directors which concerns the public, and tire method of exercising it is prescribed in order that the public may know whom to hold responsible for action which so deeply concerns them.

To hold that it is merely directory and that the board may at pleasure substitute a secret ballot, and thus make it impossible for the secretary to record the affirmative and negative votes, would defeat the manifest purpose for which it was enacted. It has not heretofore received such construction. On the contrary it is well settled that in the appointment of teachers the requirements of the act must be strictly complied with: Dennison Sch. D. v. Padden, 89 Pa. 395; Dyberry School D. v. Mercer, 115 Pa. 559; Whitehead v. School D., 145 Pa. 418. In the first mentioned case the contract with the plaintiff was in due form, just as it is here; she nevertheless failed in her action for a breach thereof because she was unable to show her appointment by the board of directors. Mr. Justice Gordon said: “ By the act of April 11, 1862, teachers can only be selected by the school board, and so specific is the act upon this subject, that it requires the names of the members voting, both in the affirmative and negative, to be recorded upon the minutes. This is the only manner in which teachers can be selected, and from the very nature of things, this power cannot be delegated. Before effect could be given to the contract, exhibited by the plaintiff, it was necessary to show not only that O’Dea was the regularly constituted agent of the board, but that Miss Padden had been selected as a teacher by the previous action of the directors.” In the next case where the question arose the present Chief Justice said of the provisions of the act of 1862: “ They are wise and wholesome provisions intended to correct gross abuses which had gradually crept into the administration of our school system, and hence it is not requiring too much to insist on a substantial compliance with the spirit if not the very letter of the act.” The only instances in which a departure from the strict letter of .the law has been allowed, are when the minutes show that all the members were present: (Tobin v. Morgan, 70 Pa. 229) ; or where, less than the whole number being present, the minutes set forth their names (Genesee Twp. v. McDonald, 98 Pa. 444), and show in each case that the resolution passed unanimously. In the last mentioned case the conclusion, that there was a substantial compliance with the law, was reached “ after a good deal of hesitation.” Here there was neither literal nor substantial compliance with the law. Indeed, where the election is, as it was in this case, by secret ballot, the secretary has no means of ascertaining bow the members voted, and therefore it is impossible for him to comply with the law by recording the names of the members voting in the affirmative and negative. We are unable to agree with the relator that the failure of the directors to conduct the election and to have the result recorded, as provided by law, does not affect the validity of his appointment and his right to be inducted into the place to which he was chosen. It was incu'mbent on him to show an appointment to the place by the board of directors in the manner prescribed by law. A contract of employment without such appointment, although executed in due form by the officers of the board, gave him no vested right to the position and to this extraordinary legal remedy for its enforcement.

For the foregoing reasons in addition to those stated in the opinion of the learned judge in the court below the decree is affirmed at the 'costs of the appellant. „


author: Willard, J.,

text:
    J. B. Nace and S. S. Swartley, doing business under the firm name of Nace & Swartley, Appellants, v. Gideon Hartman, Surviving Partner of William L. Grim and Gideon Hartman, lately doing business under the name of William L. Grim.

      Promissory note — Presumption as to its paying a debt.

    The presumption is that a promissory note received on account of a debt, is intended to amount to payment only conditionally in the event of its being paid, but that presumption can be overcome by evidence, the burden of showing the contrary being upon the party who claims that the acceptance of the note was by way of payment.
    There being evidence tending to rebut the presumption as to conditional payment the question was one proper and necessary to leave to the jury under adequate instructions.

      Question for jury — Guarantee by individual partner — Partnership liability. i
    Where a note of a third person was given in discharge of a partnership liability, the question whether a guarantee, in form an individual one, as to one half of the amount of the note, by one member of the firm, was given to bind the firm, was for the jury under all the circumstances surrounding the transaction, there being evidence tending to support either hypothesis.
    Argued Nov. 11, 1896.
    Appeal, No. 35, Nov. T., 1896, by plaintiffs, from judgment of C. P. Berks Co., Feb. T., 1894, No. 52, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit on promissory note. Before Endlich, P. J.
    In 1889 Wm. L. Grim and Gideon Hartman entered into a partnership arrangement for tbe purpose of buying and selling butter. Grim .represented tbe firm in purchasing tbe stock. He purchased from tbe plaintiffs four hundred and eight tubs of butter amounting to $3,723.08 paying $723 cash, and giving his individual notes for tbe balance. There was no dispute as to the partnership interest’ in this purchase. Subsequently Grim purchased butter from the plaintiffs for a distinctly individual enterprise and gave his individual notes for the same. These notes were all gradually reduced by credits allowed to the one or the other. By frequent subsequent renewals the notes involving the partnership and those of Grim individually were blended together. At this juncture all the notes were entered on the plaintiffs’ books against Grim individually. Grim then transferred to the plaintiffs a note for $2,864.52 given by one Ross, payable four months after date, together with a written statement signed by Grim guaranteeing the refunding of one half the amount of said note in case of nonpayment. The Ross note was not paid when due. A distribution of $724.68 out of Grim’s estate liquidated one half of his individual liability and part of his partnership indebtedness. The action below was brought against Hartman the surviving partner. The main question involved in this case is, whether the Ross note was a payment, and the guarantee signed by Grim an individual guarantee ; or on the other hand was the said note intended to be applied as payment on account if paid when due, the defendant’s liability as partner thus continuing in case of nonpayment; and further, was the guarantee, though signed by Grim individually, given to bind the firm and thus involving the defendant as surviving partner. The court submitted the case to the jury and a verdict was found for the defendant.

      Frrors assigned were, (1-11) submitting the questions at issue to the jury, i. e. (1) whether the note sued on was accepted as payment, subject to the individual guarantee of one half thereof by the deceased partner; (2) whether that guarantee was intended to have been given to bind the firm, and in not directing a verdict for the plaintiff.

      Benj. F. Dettra, for appellants. —
    The rule of lawis that “where a draft of a third party is received by a creditor from his debtor for a pre-existing debt, the presumption is that it was received as a conditional payment unless there was an agreement that it was to be an absolute payment, and the burden of proving such an agreement is upon the debtor: League v. Waring & Co., 85 Pa. 244 ; Shepherd v. Busch, 154 Pa. 149; Holmes & Sons v. Briggs & Drum, 131 Pa. 233.
    In the cases cited above there was some evidence that the acceptance was to be absolute payment, hence a question of intention of the parties and a question to be determined by the jury whether the payment was absolute or not. This case differs in this : Not only was it a presumption of law that the plaintiffs accepted the Ross note as a conditional payment (there being no evidence to the contrary), but we have the actual agreement in writing of Grim, given in the course of the continuous joint and individual undertaking, which says that the acceptance was not to be an absolute payment.
    Where the meaning of a paper cannot be ascertained without reference to extrinsic facts which are doubtful or disputed, it must be referred to the jury; but when such facts are undisputed, the construction of the writing is for the court: Edelman v. Yeakel, 27 Pa. 26.
    The court should have construed the guarantee so as to accord with the intention of the parties as manifested by the terms of the guarantee in connection with the subject-matter to which it related: Mussey v. Rayner, 22 Pick. 223; Bell v. Bruen, 1 Howard, 169.
    Where a contract is within the scope of the business of a partnership, each partner is presumed to be the agent of all, and it is immaterial what the secret understanding of the parties may have been as to the power of each: Andrew v. Congan, 131 U. S. Rept. Appendix, p. 173.
    Each partner is the agent of the firm, and has authority to bind it by contract of guaranty, if such guaranty is within the scope of its business, and np understanding between the partners can effect the right of the guarantor to recover: First National Bank v. Carpenter, 41 Iowa, 518.
    The law is well settled, that as between partners and third parties a guaranty by one partner in the regular course of business transacted by the partnership, is binding upon the other partner: Brandt on Suretyship and Guarantee, sec. 10; Sutton et al. v. Irwine et al., 12 S. & R. 15.
    In this case the meaning of the guaranty could be ascertained without reference to any disputed facts (of which there were none) connected with the transaction, and the construction of the writing was for the court: Edelman v. Yeakel, 27 Pa. 26.
    Upon the whole case, it is manifest that there was a mistrial, and that the learned judge erred in his instruction to the jury and in submitting the case without instructing the jury that under the law the plaintiff was entitled to a verdict.

      Jefferson Snyder, with him Frank S. Livingood, for appellee.
    December 7, 1896:
   Opinion by

Willard, J.,

The questions presented in this case are of easy solution. We are to determine whether the court was in error in submitting to the jury whether a certain note for $2,864.52, made by one Ross, payable four months after date to his own order and transferred to Grim and by him transferred to the appellants was taken by them in payment of their claim against Grim and Hartman. We think the testimony was sufficient to support the verdict.

When the note was offered, the appellants took it without the indorsement of Grim, to whose order it was made payable. They deducted 5 per cent from its face to reimburse them for the expense of collection. They carefully investigated the commercial standing of Ross, the maker, and found Mm rated as worth $100,000. After the death of Grim the entire claim was presented to Ms estate for payment, and the testimony of Mr. Swartley before the orphans’ court in support of the claim against the estate was persuasive evidence that the Ross note was taken not on account but as actual payment. It also appeared in evidence that about one year after the Ross note was taken by the appellants, Mr. Swartley wrote to Mrs. Grim inter alia, viz: “ Mr. Grim and the undersigned felt at the time that the note would be paid at maturity.

“You can readily see that this was a big mistake on our part to accept the Ross note, as Mr. Grim’s estate would have been perfectly good for the amount of his two notes above mentioned.”

The whole evidence was ample to warrant the jury in finding that the parties intended the Ross note as payment of the entire partnership account and that it was so taken.

It also appears that at the time the Ross note was turned over, Mr. Swartley, one of the appellant firm, said to Grim, “ Suppose it won’t be paid ,• ” he said, “ I will give my written guarantee to back half of it if it is not paid,” and the same day executed a paper in words and figures, viz:

“ Philadelphia, October 31.1890.
I agree, if tbe W. H. Ross note, No. 59 Liberty street, New York City, will not be paid, to refund the half of it.
(Signed) “ William L. Grim.”

Under all the testimony the judge left it to the jury under his instructions to determine whether the above quoted paper was intended as the personal guarantee of Grim to bind him only or whether it was intended to bind the firm. We think the whole case was properly submitted and the judgment is affirmed.


text:
    Henry Close v. George W. Hancock, Appellant.

      Practice, O. P. — Supplemental affidavits — Time of filing same.

    Where a defendant is granted leave to file a supplemental affidavit it is his duty to file it within a reasonable time after such leave granted; failing to do so the court is justified in finally disposing of the rule, and in entering judgment upon the presumption that the defendant either could not or did not wish to be more specific.

      Practice, G. P. — Requisites of affidavit of defense alleging set-off.

    A deduction or set-off alleged in an affidavit of defense must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff’s claim.

      Requisites of affidavit under act of 1887.
    While an affidavit of defense need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defense so that the plaintiff may know with some degree of certainty what will be interposed to defeat his claim. Since the act of May 25, 1887, the completeness and accuracy required in the plaintiff’s statement and the defendant’s affidavit are substantially the same.

      Practice, G. P. — Affidavit of defense — Breach of independent contract as set-off.

    Where a defendant sets up a breach of an independent contract as an offset he should, not only attach a copy of the contract, if it be in writing, and allege a breach and the amount of damages, but should also specify with precision in what the breach consists.
    Argued Oct. 12, 1896.
    Appeal, No. 72, Nov. T., 1896, by defendant, from judgment of C. P. No. 2, Phila, Co., Dec. T., 1895, No. 991, for want of a sufficient affidavit of defense.
    Before Rice, P. J., Willard, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Motion for judgment for want of a sufficient affidavit of defense.
    Plaintiff’s statement set out a parol contract and claimed the sum of $76.79 for money due for work and labor performed in the erection of a carriage house, the items being specifically set out. Defendant filed an affidavit of defense on February 20,
    1896. On March 6, by leave of court a supplemental affidavit of defense was filed. Defendant was granted leave to file a second supplemental affidavit of defense on March 21st. On the following Saturday such second supplemental affidavit not having been filed the court entered judgment for plaintiff. The affidavit of defense and the supplemental affidavit of defense were as follows:
    AFFIDAVIT OF DEFENSE.
    George W. Hancock, being duly affirmed according to law, affirms and says, that he has a complete defense to the plaintiff’s claim of the following character: The plaintiff charged defendant for more material then he used in building an addition to defendant’s stable by thirty-three per cent of the whole amount furnished.
    That the defendant was notified by the various furnishers of material not to pay the plaintiff, as he had not paid them. That by reason of plaintiff’s default in building a row of houses, under contract dated March 30, 1895, for the defendant, and his failure to pay the mechanics and material-men, and his failure to build two kitchens according to law, by reason of the provision for damages, contained in the contract for failure to complete the same, the plaintiff is indebted to the defendant to the extent of more than $1,500, which this defendant seeks to recover against the plaintiff by way of set-off, and shall ask for a certificate thereof at the trial of the case.
    SUPPLEMENTAL AFFIDAVIT OF DEFENSE.
    “ George W. Hancock, being duty affirmed according to law, says as a further defense to the suit in this case that he entered into a contract -with the plaintiff, a copy of which is hereto attached, on March 30, 1895.
    “ That the said plaintiff did not complete said contract or com, ply with the terms thereof as follows: That this affiant paid cash to the plaintiff $5,537.20; that he accepted plaintiff’s orders to the amount of $915 as follows: Lumber, $300 ; mill work, $250; stairs, $102; iron, $103; additional mill work, $160; making in all $6,452.20. ¡
    “ That he is advised, believes and will prove on the trial of this case that it will take $910 more to complete the houses under the contract which has been abandoned by the plaintiff. That the above sums exceed by $460 the contract price for the houses to be built and completed by the plaintiff.
    “ That by the terms of the said contract plaintiff was to complete it on the twenty-ninth- day of June, 1895, and pay $3 per day as liquidated damages, that it is still uncompleted and under the above clause the plaintiff is now, March 5, 1896, indebted to the defendant in the sum of $750 additional by rea-, son of his failure to perform said contract for 250 days.”
    That to the above affidavit the contract of the plaintiff was attached, setting forth that the contract price was $6,900, that the work was to be completed prior to June 29, 1895, providing for a penalty and fixing the payment of the sums of money to the defendant thereon.
    Judgment for plaintiff. Damages assessed at $79.75.

      Errors assigned were, (1) entry of judgment for want of a sufficient affidavit of defense; (2) entering judgment after having, given defendant leave to file a second supplemental affidavit of defense without counsel or defendant being given notice of such application.

      Henry J. Hancock, for appellant.
    The case never appeared on any list except the current motion list for March 2,1896. The rules of court require 48 hours’ notice, of a motion for judgment. Here the record shows nothing done from March 2,1896, when the supplemental affidavit was ordered, until March 28, 1896, when judgment was taken.
    It is contended also that the affidavit filed was sufficient: Bank v. Oil Works, 175 Pa. 580; Galey v. Fitzpatrick, 171 Pa.
      50; Davis Coal Co. v. Coal Co., 175 Pa. 155; Lane v. Penn Glass Sand Co., 172 Pa. 252; Murphy v. Taylor, 178 Pa. 317 ; Bryson v. Home, 168 Pa. 352.
    In the present case the statement is fatally defective in that it does not aver the sum was “ justly due.” And no plea was put in by the defendant, so that it is not too late to object to the defect: Gould & Co. v. Gage, 118 Pa. 559; Schafer v. Brotherhood, 22 W. N. C. 312.

      Ormond Rambo, for appellee.
    January 18, 1897:
   Opinion by

Rice, P. J.,

The defendant’s affidavit of defense was filed on February 20. It was clearly insufficient and a rule was entered for judgment. On March 2, the defendant was granted leave to file a supplemental affidavit, which he did on March 6. It is stated in the paper-boobs — although the record does not show it — that at the argument, after this affidavit had been filed, the court deeming it defective, granted the defendant leave to file a second supplemental affidavit. It is stated that this leave was granted on March 21. On the following Saturday (March 28) the second supplemental affidavit not having then been filed the court entered judgment. We see no error in this. The original rule was pending and had been argued. It was not necessary to enter a new rule, nor to give further notice: Com. v. Snyder, 1 Pa. Superior Ct. 286. It was the defendant’s duty to file his second supplemental affidavit within a reasonable time after leave was granted. Failing to do so the court was perfectly justified in finally disposing of the rule and entering judgment.

In his first and second affidavits the defendant sets up as an offset to the plaintiff’s demand a cross demand for damages growing out of the plaintiff’s breach of a contract to build a block of houses for the defendant. He alleges in general terms that the plaintiff abandoned the contract before completion, and that it would cost at least 1910 to complete the houses according to the contract; also that he is entitled to the additional sum of $750 as liquidated damages under a provision of the contract that the plaintiff should pay $3.00 for each day that the houses remained uncompleted after June 29, 1895.

Affidavits of defense are uniformly construed most strongly against the defendant, for it is reasonable to suppose that he will state his case as favorably for himself as the facts will permit. A deduction or set-off, alleged in an affidavit of defense, must, in order to be of any avail, be stated with precision and exactness as to the amount, and the court must be left in no doubt as to its source and character, so as to be able to judge of the propriety of its allowance against the plaintiff’s claim: Endlich on Affidavits of Defense, sec. 510. There is an additional, reason, which is that the plaintiff is entitled to know with reasonable certainty what he will be compelled to meet on the trial, of the case. While an affidavit of defense need not have all the particularity and technicality which are necessary in a special plea, yet it ought to set out the defense so that the plaintiff may know, with some degree of certainty, what will be interposed to defeat his claim: McCracken v. First Ref’d Congregation, 111 Pa. 106. Since the act of May 25, 1887, P. L. 271, the completeness and accuracy required in the plaintiff’s' statement and the defendant’s affidavit are substantially the same: Fritz v. Hathaway, 135 Pa. 274. As our Brother Smith well said in Hutton v. McLaughlin, 1 Pa. Superior Ct. 642 : “and one evident purpose of that statute is to secure full and concise statements of the material facts relied upon, so that each party may know with reasonable certainty the mature and character of the other’s claim and contention relative to the subject-matter of the controversy.” See also Markley v. Stevens, 89 Pa. 279; Louchheim v. Becker, 3 W. N. C. 449; McBrier v. Marshall, 126 Pa. 390; Bakes v. Reese, 150 Pa. 44; Terriberry v. Broude, 173 Pa. 48. Where-, a defendant sets up a breach of an independent contract as an offset, he should, not only attach a copy of the contract, if it be in writing, and allége a breach and the amount of damages, but should also specify with precision in what the breach consists. The affidavits before us are defective in this latter particular; they do not show when the plaintiff abandoned work on the contract nor in what particular it remained unperformed. They are also defective in not stating the dates of the payments referred to therein. The plaintiff was entitled to a specific statement of the particulars in which the defendant claimed the houses to be uncompleted; for without it, he would be compelled to come to trial prepared to prove that every door was hung and every nail was driven. The enforcement of these plain rules imposes no hardship on the defendant. The court gave him full opportunity to cure the obvious defects in his affidavits, and he cannot now complain if they are scrutinized with somewhat greater strictness than if he had not been afforded such opportunity. Failing to file a second supplemental affidavit within a reasonable time, the court had a right to presume that he either could not or did not wish to be more specific.

We have examined all of the cases cited by the defendant and find nothing in them to conflict with the foregoing conclusions.

The judgment is affirmed.