author: Porter, J.,

text:
    Commonwealth v. Banker Brothers Company, Appellant.

      Practice, C. P. — Case stated — Contract—Principal and agent.

    1. Where a case stated avers that one of the parties was an agent of a foreign corporation as shown by a copy of a contract annexed, the court may look into and construe the contract and find that the party named was in fact a purchaser of goods from the foreign corporation, and not its agent as averred in the case stated.

      Taxation — Mercantile tax — Interstate commerce — Purchase of automobile — ’Principal and agent.

    2. When goods are sent from one state to another for sale, or in consequence of a sale, they become part of its general property and amenable to its laws, provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being from another state, but only taxed in the usual way as other goods are.
    3. If the mercantile tax imposed by the Act of May 2,1899, P. L. 184, be regarded as a tax upon property, it is one which the state has power to impose. If it be regarded as a tax upon a trade, or the business of vending merchandise, it is also a tax which the state may legally impose.
    4. A foreign corporation manufacturing automobiles entered into a contract with a Pennsylvania corporation doing business in this state, by which the foreign company agreed to sell automobiles to the Pennsylvania company at a certain list price, delivery to be made as soon after orders were received as practicable, payment to be made in cash. The Pennsylvania company agreed not to sell any other kind of automobiles within a designated territory, and not to sell the foreign company's automobiles outside of such territory. Payments were to be made either in advance, or by paying drafts with bills of lading attached. The contract could be terminated by either party upon ten days' notice. There was nothing in the agreement which authorized the Pennsylvania company to bind the foreign company by any engagement with a third party. Held (1), that the agreement was a contract for the sale of automobiles, and did not create between the parties the relation of principal and agent; (2) that upon the payment of sight drafts the automobiles became the absolute exclusive property in Pennslyvania of the purchasing company; and (3) that the Pennsylvania company was a retail vendor of automobiles, and as such subject to the mercantile tax imposed by the Act of May 2, 1899, P. L. 184.
    Argued April 28, 1908.
    Appeal, No. 181, April T., 1908, by-defendant, from judgment of C. P. No. 4. Allegheny Co., First Term, 1908, No. 796, for plaintiff on case stated in suit of Commonwealth v. Banker Brothers Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for a mercantile tax. Before Carnahan, J.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment for plaintiff on the case stated.

      Harvey A. Miller and E. J. Kent, for appellant.
    Upon a case stated, the court cannot go outside of its terms for facts; neither can it assume facts by way of inference: Com. v. Howard, 149 Pa. 302; Northampton County v. Easton Pass. Ry. Co., 148 Pa. 282.
    The automobiles were articles of interstate commerce: Lyng v. State of Michigan, 135 U. S. 161 (10 Sup. Ct. Repr. 725); Robbins v. Shelby County Taxing District, 120 U. S. 489 (7 Sup. Ct. Repr. 592); Brennan v. Titusville, 153 U. S. 289 (14 Sup. Ct. Repr. 829); Welton v. Missouri, 91 U. S. 275; In re Flinn, 57 Fed. Repr. 496; Stoutenburgh v. Hennick, 129 U. S. 141 (9 Sup. Ct. Repr. 256); In re Tinsman, 95 Fed. Repr. 648; Ficklen v. Shelby County Taxing District, 145 U. S. 1 (12 Sup. Ct. Repr. 810).
    February 26, 1909:

      George H. Calvert, with him James M. Magee and Donald Thompson, for appellee.
    The appellant fails to distinguish between, and confuses, what constitutes the facts and the legal conclusions which follow and must be inferred from the facts as agreed upon. That this is permissible there can be no doubt: Carbon Spring Water Ice Co. v. Hawk, 29 Pa. Superior Ct. 13; Nellis v. Coleman, 98 Pa. 465; Addyston Pipe & Steel Co. v. Corry City, 197 Pa. 41.
    The defendants were dealers: Norris Bros. v. Com., 27 Pa. 494; Com. v. Campbell, 33 Pa. 380; Com. v. Vetterlein, 29 Pa. Superior Ct. 294.
    Although the tax or license is based upon the sale of the goods, it is in fact a tax upon the goods themselves, and therefore governed by the same rules: Brown v. Maryland, 25 U. S. 419; Welton v. Missouri, 91 U. S. 275; Brennan v. Titusville, 153 U. S. 289 (14 Sup. Ct. Repr. 829); Kehrer v. Stewart, 197 U. S. 60 (25 Sup. Ct. Repr. 403); Brown v. Houston, 114 U. S. 622 (5 Sup. Ct. Repr. 1091); Emert v. Missouri, 156 U. S. 296 (15 Sup. Ct. Repr. 367); American Steel & Wire Co. v. Speed, 192 U. S. 500 (24 Sup. Ct. Repr. 365); Robbins v. Shelby County Taxing District, 120 U. S. 489 (7 Sup. Ct. Repr. 592); New Castle v. Cutler, 15 Pa. Superior Ct. 612; Meyer, Jossen & Co. v. Mobile, 147 Fed. Repr. 843; Diamond Match Co. v. Ontonagon, 188 U. S. 82 (23 Sup. Ct. Repr. 266).
   Opinion by

Porter, J.,

The parties agreed upon a case stated in the court below, under the provisions of which this is to be considered as an action of assumpsit brought by the commonwealth to recover of the defendant company the taxes upon its sales of merchandise as a retail dealer, under the provisions of the Act of May 2, 1899, P. L.-184, and, also, for the license tax upon the defendant as a merchandise broker, under the provisions of the Act of April 14, 1905, P. L. 161. The court below, being of opinion that the defendant was a retail vender of goods, wares and merchandise, as defined by the act of May 2, 1899, entered judgment against the defendant in the sum of $354, and refused to enter judgment for the tax upon defendant as a merchandise broker. The defendant appeals. The only question is whether certain sales made by the defendant were subject to the tax imposed by the act of May 2,1899. The appellant contends that the imposition of the tax, in so far as based upon the sales in question, was in violation of that provision of the constitution of the United States vesting in congress the “power to regulate commerce with foreign nations and among the several states.”

The counsel for appellant contend in their brief, as they did upon the oral argument, that the court below fell into error in considering all the facts which had been embodied in the case stated. The case stated contained among other agreements the following, viz.: “That Banker Brothers Company, defendant above named, is a corporation organized and existing under the laws of the State of Pennsylvania, having its principal office in the City of Pittsburg, and is engaged, inter alia, in the business of selling an automobile known under the name of the Pierce Great Arrow, which automobile is manufactured in the City of Buffalo, State of New York, by the George N. Pierce Company, a corporation of the State of New York, located in the city and State aforesaid, and the defendant is the exclusive agent and representative of the said George N. Pierce Company for the Pittsburg territory, as specifically described and mentioned in the contract entered into between the said George N. Pierce Company and the defendant, a copy of which is hereto attached, made a part hereof and marked exhibit ‘A.’ That the said contract, marked exhibit ‘A,’ is the genuine existing contract between the George N. Pierce Company of Buffalo, N. Y., and the defendant company, and is the basis of the existing relations and dealings between the said parties thereto, and of the right of the said defendant to sell said automobile in said Pittsburg territory.” The learned counsel argue that this particular part of the written agreement, as to facts in the case stated, involved a conclusive agreement that the relation between the Pierce company and the defendant was that of principal and agent, and that the defendant company was nothing more to its customers than the agent for the George N. Pierce Company, and that it was not in the power of the court below to go beyond this fragment of the case stated and consider any other fact therein agreed upon or the contracts thereto attached and made part thereof, in determining what was the actual character of the business involved in the sales made by the appellant within the state of Pennsylvania. In thus attempting to escape from the legal results of the other facts and the contracts which had been embodied in the case stated and to confine the inquiry to a fragment of the agreement, the learned counsel seem to lose sight of the fact that, while the fragment upon which they rely does state that “ the defendant is the exclusive agent and representative of the George N. Pierce Company for the Pittsburg territory,” it does not state that the sales in question were made as the agent of the Pierce company, nor does an implication that the sales were so made necessarily arise from the facts stated in that part of the agreement upon which they seem to rely. The contract exhibit “A,” which was attached to and made part of the case stated, was thus incorporated for the purpose of showing the relations and dealings between the defendant corporation and the George N. Pierce Company and the character in which the defendant corporation made sales of automobiles in the Pittsburg territory. It was the duty of the court below, as it is of this court, to examine that contract and consider all the facts agreed upon in the case stated in order to properly determine the real character of the sales made by this Pennsylvania corporation, in the state of Pennsylvania and to citizens of Pennsylvania.

The contract between the appellant corporation and the Pierce company is one which in its form, purpose and effect is not unusual in modern times. The Pierce company, a manufacturing corporation of the state of New York, under the provisions of this agreement contracted to sell automobiles to the defendant, a Pennsylvania corporation, at prices for each type of automobile twenty per cent below the “list price” for the respective types, deliveries to be f. o. b. Buffalo, as soon after orders for delivery were from time to time received as practicable and as the prior orders of other parties and the Pierce company’s business would permit; payment to be made in cash. The Pierce company agreed not to enter into any contract with any other party for the sale of its automobiles within the designated territory and not to solicit orders for automobiles within such territory during the existence of the agreement; and it further agreed to grant credit to the Pennsylvania corporation for parts of automobiles and repairs, the same to be paid for not later than the fifteenth day of the month succeeding that in which the credit was incurred. The defendant corporation contracted to use due diligence to further the sale of Pierce automobiles within the designated territory, not to sell such automobiles outside of the said territory without permission, and not to sell or offer for sale any cars of the current year’s model at less than the list price, with freight charges added. It agreed to pay for all such automobiles “either by cash payment in advance or by accepting and paying drafts with bills of lading attached at sight on presentation.” It agreed to pay for all parts of machines and repairs for which credit was granted monthly, not later than the fifteenth day of the month succeeding. The contract contained a provision that it might be terminated by either party upon ten days’ notice, and “In case of cancellation of this agreement the second party may elect to take or not any orders then recorded and accepted by the first party, .... Such cancellation, however, shall not be construed to relieve the second party of any indebtedness incurred.” The contract does not contain one word which authorizes the defendant company to enter into any contract on behalf of or bind the Pierce company by any engagement with any third party. This was a contract for the sale of automobiles and did not create between the parties the relation of principal and agent. The Pierce company, a manufacturer, secured by this contract a responsible purchaser for the product of its factory and made it to the interest of that purchaser to further the sale of such product, within the designated territory, by a liberal discount from the list price, thus enabling the purchaser to sell at a profit. The contract secured to the purchaser, this defendant, a clear field for the sale of the goods that he bought, through the operation of the covenant that the manufacturer would not sell to others within the same territory. When this defendant, a Pennsylvania corporation, paid the sight draft with bill of lading attached and took possession of an automobile when it arrived, that car, then in Pennsylvania, became the absolute exclusive property of this Pennsylvania corporation. The Banker Brothers Company could then have sold such cars to any person at any place, and for any price that to them was satisfactory; and the purchaser would have taken a good title. The Pierce company might have canceled their contract with the defendant, in case the latter sold an automobile at less than the list price or outside of the designated territory, in violation of the covenants of the contract, or in case they were able to show actual damage they might possibly have maintained an action for a breach of the contract, but the defendant company could have made a valid sale which would have passed the title to the automobile.

Having by the above-recited contract made sure of a source of supply the defendant company was in position to carry on the business of selling automobiles. The case stated sets forth the manner in which such sales were made. The sales were solicited and made by and through demonstrations of said machines by means of demonstrating cars of the same type as that offered for sale, owned and used and always on hand for such purpose only, by the defendant company. The defendant company does not solicit orders and does not make sales outside of the territory designated by this contract with the Pierce company, and sells only at the “list price.” When a customer determines to buy a machine he signs an order upon the form exhibit “B,” attached to and made part of the case stated. This order is addressed to Banker Brothers, the defendant corporation, and in it the purchaser agrees to buy an automobile of a type, style and finish designated in the order, at the list price, f. o. b. factory; and to pay in cash an amount then agreed upon and the balance upon delivery of the car to him. The order is then accepted by Banker Brothers Company and constitutes the contract between the defendant corporation and those to whom they make sales. The defendant company in this contract of sale covenants in its own right. The contract contains no suggestion that the defendant corporation is acting as the agent for the Pierce company or any other person or corporation, nor does it contain anything from which an inference could be drawn that it was in the matter acting as an agent or representative. The purchaser becomes bound to Banker Brothers only and acquires no rights, under this contract, against any other person or corporation. In case the automobile is not delivered to the customer according to the terms of the contract his only remedy would be against Banker Brothers Company, this defendant corporation. In case a purchaser declined to accept an automobile when it was tendered according to the terms of the contract, the only person who, under this contract, would have a remedy against such purchaser would be this defendant. These sales are sales by the defendant corporation, in its own right, and not as the agent of the Pierce company.

When the defendant company had thus secured a contract for the sale of an automobile, it forwarded to the Pierce company an order for a car of the type desired, together with the cash payment; the Pierce company shipped the car, when ready, consigning it to the defendant company with bill of lading and sight draft on defendant company attached for the balance of the price, twenty per cent less than the list price, at which the defendant company was entitled to the car under the terms of its contract with the Pierce company. The defendant company paid the sight draft and took possession of the car, and then delivered it to the purchaser and collected from him the balance of the amount, which under his contract he agreed to pay upon such delivery.

The facts set forth in the case stated clearly establish that the defendant corporation was a dealer, which bought automobiles from a factory located in New York, that the goods were by the manufacturer shipped to the defendant company which paid for them before receiving them into its possession, and which under the terms of its contract and the manner in which the shipment was made was required to pay for them before it was entitled to possession. When the defendant company had paid for and obtained possession of a car it in turn delivered it to the purchaser, as required by its own contract with that purchaser, and upon such delivery it collected from the purchaser the money which was its own due. The defendant company is, so far as this particular business is concerned, one who buys to sell again, and is, within the meaning of the act of 1899 a retail vender of merchandise and subject to the tax imposed by that act on such business. The sale made by the Pierce company to the defendant corporation in view of the manner in which the contract is executed, involves interstate commerce, and down until the time the automobile comes into the possession of the defendant company in Pennsylvania the transaction is within the protection of the constitution of the United States. The sales which the Pennsylvania corporation makes to citizens of Pennsylvania and which are completed by a delivery to the purchaser in Pennsylvania, of cars which had become the property of the Pennsylvania corporation, are subject to the taxing power of the state.

“When goods are sent from one state to another for sale, or in consequence of a sale, they become part of its general property and amenable to its laws; provided that no discrimination be made against them as goods from another state, and that they be not taxed by reason of being brought from another state, but only taxed in the usual way as other goods are:” Robbins v. Shelby County Taxing Dist., 120 U. S. 489; Brown v. Houston, 114 U. S. 622; Emert v. Missouri, 156 U. S. 296; American Steel & Wire Co. v. Speed, 192 U. S. 500; Diamond Match Company v. Ontonagon, 188 U. S. 82; General Oil Company v. Crain, 209 U. S. 211. If, therefore, the tax imposed by the act of 1899 be regarded as a tax upon property, it was one which the state had power to impose. Should the tax be regarded as a tax upon a trade, or the business of vending merchandise, as it in Pennsylvania has been held to be, Knisely v. Cotterel, 196 Pa. 614; Commonwealth v. Bailey Banks, & Biddle Co., 20 Pa. Superior Ct. 210, then the power of the state to impose such a tax is sustained by the decision of the supreme court of the United States in Ficklen v. Shelby County Taxing Diet., 145 U. S. 1.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Biehl v. General Accident Assurance Corporation, Limited, Appellant.

      Practice, C. P. — Trial—Charge—Misstatement of testimony — Duty of counsel.

    1. When a charge is full, fair and adequate, in other respects, a judgment will not be reversed because of some lapse of memory upon the part of the judge in referring to the testimony, where counsel for the party subsequently complaining were present and had an opportunity to call attention to the lapse at the time and failed to do so.

      Insurance — Accident insurance — Exposure to obvious danger — Negligence — Alighting from street car.

    2. A provision in a policy of accident insurance exempting the company from liability for death of the assured “resulting from unnecessary exposure to obvious risk of injury, or obvious danger," does not apply to every act of negligence of which the assured may be guilty, but only to such as are wanton or grossly imprudent. It is not such exposure as men usually are going to take, and such as is incident to the ordinary habits and customs of life.
    3. The specific contract of accident insurance being one of indemnity, the main object of the assured is protection against accidental injuries, whether they result from thoughtlessness, carelessness or negligence; otherwise the very purpose for which such policies are issued will be defeated.
    4. While attempting to descend to the running board of a street car when in motion, may be such contributory negligence as will defeat a recovery against the railway company, yet it may not be such a wanton exposure to obvious danger as would defeat an action on a policy of accident insurance. The question whether such an act constitutes a wanton exposure to obvious danger, is for the jury.
    Argued April 22, 1908.
    Appeal, No. 205, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 873, on verdict for plaintiff in case of Essie Biehl v. General Accident Assurance .Corporation, Limited.
    February 26, 1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance. Before Young, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $277.20. Defendant appealed.

      Errors assigned were (1) portions of the charge, quoted in the opinion of the Superior Court; (2) in refusing binding instructions for defendant; and (3) refusal of defendant's point, quoted in the opinion of the Superior Court.

      G. K. Wright, of Alter & Wright, for appellant.
    The deceased voluntary exposed himself to obvious danger: Rebman v. General Accident Ins. Co., 217 Pa. 518; Lehman v. Great Eastern Casualty & Indemnity Co., 7 N. Y. App. Div. 424; Cornish v. Accident Ins. Co., L. R. 23 Q. B. Div. 453; Price v. Standard Life & Accident Ins. Co., 99 N. W. Repr. 887.

      John L. High, for appellee.
    The case was for the jury: Burkhard v. Ins. Co., 102 Pa. 262; DeLoy v. Ins. Co., 171 Pa. 1; Providence Life Ins. & Investment Co. v. Martin, 32 Md. 310; Cotten v. Fidelity & Casualty Co., 41 Fed. Repr. 506; Schneider v. Provident Life Insurance Company, 24 Wisconsin, 28; Marx v. Travelers' Insurance Company, 39 Fed. Repr. 321; Equitable Accident Insurance Company v. Osborn, 9 So. Rep. 869; Pacific Mutual Life Insurance Company v. Snowden, 58 Fed. Repr. 342.
   Opinion by

Porter, J.,

The plaintiff brought this action on a life insurance policy, in which she was named as beneficiary, issued by the defendant company to Philip Biehl, her husband, to recover indemnity for the accidental death of said assured. The general terms of the policy are broad enough to make the company liable, but it claims exemption therefrom under a certain exception in the policy. The statement of the plaintiff and the affidavit of defense thereto filed by the defendant, under the provisions of the rules of the court below, established the prima facie right of the plaintiff to recover, and the burden was upon the defendant company to show that the death of the assured resulted from a cause not covered by the policy. The provision of the policy upon which the defendant relied exempted the company from liability for death of the assured, “resulting from unnecessary exposure to obvious risk of injury or obvious danger.” The assured was riding on a street car of the type called a summer car, having a running board or step extending along the side the entire length of the car, and was sitting upon the seat on the back platform, facing toward the rear. The car was crowded, passengers were standing upon the rear platform and along the running board of the car, at the side. When the car approached the point at which the assured desired to alight the conductor was on the running board about the middle of the car and was facing toward the front of the car, away from the assured. The assured arose from his seat for the purpose of signaling the car to stop, whistled to the conductor and walked over to the side of the car next the running board. He then either fell from the platform or descended to the running board and fell from that point, and was killed by the fall to the street. One witness testified that he first saw the assured on the running board, that the assured “whistled to the conductor, turned sharply just as he whistled and before the car was stopped he jumped off,” that he appeared to turn backwards when he jumped and he fell on the asphalt and broke his neck. The conductor of the car testified that he “heard a sharp whistle and just looked around in time to see this man jumping out, and he lit on the street on the back of his head. ... He was on the back end of the car — jumped from the running board straight out.” A witness called by the plaintiff testified that he was sitting next to the assured, on the rear seat looking backward, when the latter got up out of his seat and signaled to the conductor to stop the car, that after the assured had whistled he walked over on the rear platform, “and it looked to me — I couldn’t tell whether he stepped down on to the running board or whether he fell off from the car, but after he got up he just walked over to the edge of the car, and the next thing I knew he was lying on the street.”

The first specification is based upon the following quotation from the charge of the court below: “Neither of these witnesses, as I understand, says distinctly that he saw him jump from the car. If they did say so the testimony is for you; I do not recall that they said that.” The learned judge did not have a clear recollection of the testimony and did not correctly state it, but the language used by him clearly indicated to the jury that he was only giving his recollection of what had been said and that he did not intend the jury to accept it as accurate, but it was for the jury to remember what had been testified. When this slip of memory upon the part of the court occurred, counsel for the defendant ought to have at once called attention to it. Wdien a charge is full, fair and adequate, in other respects, a judgment will not be reversed because of some lapse of memory upon the part of the judge in referring to the testimony, where counsel for the party subsequently complaining were present and had an opportunity to call attention to the lapse at the time and failed to do so. The first specification of error is overruled.

The appellant requested the court to charge as follows: “If the jury believes that the deceased, while occupying a safe position in the body of the car and intending to leave the car at the next stop voluntarily stepped down on to the running board of the car into such a position that he was in danger of being thrown off and injured, and was thrown off and injured, the plaintiff cannot recover, and the verdict should be for the defendant.” The learned judge of the court below refused this point, which refusal is assigned for error. This point would have been a correct statement of the law had the action been against the street railway company to recover damages upon the allegation that the death of Philip Biehl had been caused by the negligence of those operating the car. Negligence of the party injured which in any degree contributes to cause the injury is, in cases of that character, a complete defense to any claim for damages. This, however, is not an action for damages, but is upon a contract, and the only question is whether the risk is one which came within the terms of the contract. The specific contract of accident insurance being one of indemnity, the main object of the assured is protection against accidental injuries, whether they result from thoughtlessness, carelessness or negligence; otherwise the very purpose for which such policies are issued would be defeated.

The learned counsel for the appellant argues that because the deceased would as a matter of law have been held guilty of contributory negligence, in an action brought against the street railway company upon the allegation that his death had been caused by the negligence of its employees, that, therefore, the death of the assured must, assuming the facts to have been as stated in the request of the defendant for instructions, be held, as matter of law, to have resulted from “unnecessary exposure to obvious risk of injury or obvious danger.” The exception in the policy, if the contention of the defendant is correct, would be to deprive an assured of any right to recover for an injury to which his own negligence in any way contributed. Such a construction would render the policy little better than a snare to the insured. The question is not whether the assured was negligent, but whether he exposed himself to a risk not covered by the policy: Burkhard v. Travelers’ Insurance Company, 102 Pa. 262; DeLoy v. Insurance Company, 171 Pa. 1; Rebman v. General Accident Insurance Company, 217 Pa. 518; Cornish v. Accident Insurance Company, L. R. 23 Q. B. Div. 453. The exception upon which the defendant relies is that of “unnecessary exposure to obvious risk of injury or obvious danger.” The very language of the exception implies that there may be a necessary exposure to obvious danger. Is this necessity to be construed as an imperative one, which would permit only the incurring of such risks as cannot possibly be avoided? If so the burden would be upon the assured to guard himself against the ordinary dangers which beset every prudent man in everyday life. The man who could by any possibility avoid entering upon the busy streets of a city would be compelled to shun all such localities. The clause should have a reasonable construction, such as will permit an assured to pursue his business or pleasure in a reasonably convenient manner. When an assured voluntarily undertakes to do some dangerous act, in which the peril is imminent and extreme, such exposure to peril must be held to be within the exception of a contract of the character with which we are now dealing; of such cases Rebman v. General Accident Insurance Company, 217 Pa. 518; and Cornish v. Accident Insurance Company, L. R. 23 Q. B. Div. 453, are examples. Not all injuries occasioned by the negligence of the assured are within such an exception. There are degrees of negligence, and we are unable to read this policy as refusing protection to a man in all cases in which he may have been negligent in any degree. Unnecessary exposure to obvious danger, means an exposure with knowledge, or under circumstances from which knowledge would be inferred, to a risk which it was not necessary to incur. The meaning is the same as if the exception had been expressed in the words “voluntary exposure to unnecessary danger,” which form of expression in contracts of this character has been frequently construed. The exception means a wanton or grossly imprudent exposure. It is not such exposure as men usually are going to take, such as is incident to the ordinary habits and customs of life. Such an exposure does not come within the range of a defense. An exposure, in order to have been a contributing cause, and so defeat the plaintiff’s right to recover, must be something beyond the ordinary, or a wanton piece of gross carelessness, as we would term such in our designation of conduct in the usual walks of life: Manufacturers’ Accident Indemnity Company v. Dorgan, 58 Fed. Repr. 945.

The learned judge of the court below charged the jury that if they found that the deceased had jumped from the car the verdict should be in favor of the defendant company. He also instructed the jury that if they should “find from the evidence that he tripped or fell from the car, and if you also find from the evidence that his rising and walking' on the platform and attempting to descend to the running board, as it approached the place, after his signal, was such a risk as would be taken by an ordinarily prudent man, your verdict should be for the plaintiff. If you find that it was such an apparent, obvious risk of danger that an ordinarily prudent man would not take it, then the plaintiff cannot recover.” The evidence clearly established that the assured could not have signaled the conductor from the seat that he was occupying at the rear platform; in order to notify the conductor of his desire to alight from the car it was necessary that he should arise from his seat and signal. One witness testified that the deceased whistled, as a signal, as soon as he arose from the seat before walking across the platform. The conductor testified that he heard the whistle and immediately looked around and saw the assured, who was at that moment going from the car. Whether the assured had whistled more than once, or whether it was “necessary” for the assured to expose himself to the risk of going to the side of the car in order to signal the conductor to stop the car, the conductor then being on the running board about the middle of the car and facing in the other direction, were questions of fact. The crowded condition of the car, clearly established by the evidence, necessarily rendered it difficult for the assured to attract the attention of the conductor. All the facts disclosed by the evidence rendered it proper for the court to submit to the jury the question whether the assured unnecessarily exposed himself to obvious risk of injury. The learned judge of the court below submitted that question under instructions of which the appellant has no ground for complaint. The assignments of error are dismissed.

The judgment is affirmed.


author: Head, J.,

text:
    Bellevue Borough, Appellant v. Umstead.

      Municipal liens — Continuance of lien after judicial sale — Mortgage— Act of May 16,1891, P. L. 69, June 4,1901, P. L. 364, and May 28,1907, P. L. 280.
    1. There is nothing in the Act of June 4,1901, P. L. 364, repealing the Act of May 16, 1891, P. L. 69, which exhibits any intention on the part of the legislature of generally preserving municipal liens against property which has been sold at sheriff’s sale.
    2. Between the dates of the passage of the Act of June 4, 1901, P. L. 364, and the Act of May 28,1907, P. L. 280, there was no law which preserved municipal liens against property which had been sold at a judicial sale on a mortgage. A judicial sale on a mortgage between these dates, which produced a’ fund sufficient only to pay costs, discharged both the mortgage and a municipal lien on the land.
    3. The thirty-second section of the Act of June 4, 1901, P. L. 364, which provides that “a judicial sale of the property liened, shall not discharge the lien of any other tax or municipal claim than that upon which such sale is had, except to the extent that the proceeds realized are sufficient for its payment,” applies only to a sale which itself is founded on a tax lien or a municipal claim, and has no application to judicial sales founded on mortgages, judgments, recognizances, decrees or otherwise.
    4. All liens against a property are divested by a judicial sale unless clearly preserved by an act of the legislature.
    Argued April 29, 1908.
    Appeal, No. 215, April T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 504, for defendant on case stated in suit of Bellevue Borough v. L. E. Umstead, with notice to George H. Quaill.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine the validity of a municipal lien for grading and paving. Before Frazer, P. J.
    In addition to the facts stated in the opinion of the Superior Court the record showed that the report of viewers upon which the lien was based was filed on May 28, 1902, and that the sheriff’s sale in foreclosure proceedings was on February 4,1903.
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      David L. Starr, for appellant,
    cited: Haspel v. O’Brien, 218 Pa. 146.

      George H. Quaill, for appellee,
    cited: Shaw v. Allegheny City, 115 Pa. 46; Allegheny City’s App., 41 Pa. 60; Pittsburg’s App., 70 Pa. 142.

      February 26, 1909:
   Opinion by

Head, J.,

The mortgage, the foreclosure of which resulted in the sheriff’s sale, when recorded in 1899, was, admittedly the first lien against the lot described in it. The ordinance of the plaintiff borough, authorizing the improvement of the street on which the lot fronted, was not enacted until after the mortgage had been recorded. The work was done still later, and as the result of the report of viewers, confirmed by the court, a municipal lien or claim, for 8168.35, was filed in court against the lot. A scire facias was then issued on the mortgage, a judgrnént obtained and a sale by the sheriff followed which produced a fund sufficient only to pay the. costs of the writ, leaving nothing to be applied either to the mortgage debt or the municipal claim.

The appellant contends, (a) that if the sale had produced a fund sufficient to pay its claim, over and above the costs, its lien would have been discharged by the sale and it would have taken the money to the exclusion of the mortgage; (b) that as the fund was not sufficient to thus pay, its lien was not affected by the sale and still grasps the land in the hands of the purchaser. Both of these claims are exceptional and in contravention of the general and well-established principles regulating the discharge of liens by judicial sales and their transfer to and payment out of the fund produced by such sales. That the legislature, by statute, has made and may make exceptions to these general rules is not denied. But he who would successfully assert that any particular claim possesses these unusual and extraordinary incidents, must be able to point to some clear expression of the legislative will creating them. Statutes enacting that public taxes, for instance, should be a lien upon the real •property against which they are assessed and should have “priority over and be fully paid and satisfied before any lien (except other taxes) on said real estate,” have been construed by our courts, and it has been held that such acts were not effective to preserve the lien of such taxes, after a judicial sale, even if the fund, realized from such sale, was insufficient to satisfy the lien: Allegheny City’s Appeal, 41 Pa. 60; Shaw v. City of Allegheny, 115 Pa. 46. It seems clear, therefore, that in order to sustain its contention that its lien survived the sheriff’s sale, the appellant must rely upon legislation which goes farther than the acts construed in the cases cited.

We are not asked to say that prior to the passage of the Act of May 16, 1891, P. L. 69, there was any legislation which would support the claim here advanced by the appellant. That act expressly declared that municipal claims for improvements, when duly filed, should “ remain a lien upon said properties until fully paid and satisfied.” But it is conceded that act was repealed by the Act of June 4, 1901, P. L. 364. If, however, the latter act, whilst repealing the former one, had re-enacted the provision just quoted, then, under the authority of Haspel v. O’Brien, 218 Pa. 146, we should be obliged to hold that there had been no break in the continuity of the legislation and that the provision had remained in force from the time of the original enactment. There is nothing in that case, however, to warrant the claim that the act of 1901 exhibits any intention on the part of the legislature of generally preserving such liens against property which had been sold at a judicial sale. No such question was there raised or considered. We must then resort to the act itself to determine what it enacts.

In the second section it is declared that all taxes assessed on any property shall be a first lien on said property and be first payable out of the proceeds of any judicial sale of it — save only the costs of sale. In the third section the same provision exactly, omitting only the word “first,” is made for municipal claims. If we are to follow the construction given to similar legislation in the cases earlier cited, it must be clear there is nothing in either of these sections that would save the liens they create from being discharged by a judicial sale. We then turn our attention to the thirty-second section.

That section first provides that “ a judicial sale of the property liened shall not discharge the lien of any other tax or municipal claim than that upon which such sale is had, except to the extent that the proceeds realized are sufficient for its payment.” Clearly enough, we think, the language quoted applies only to a sale which itself is founded on a tax lien or municipal claim. It so declares in terms. Where, in such a sale a fund is produced and there are several tax liens or municipal claims the order of priority and distribution among them is next provided for. But “mortgages .... which were recorded .... before the actual doing of the work in front of the particular property for which the municipal claim is filed, shall not be disturbed by such sale unless a prior lien is also discharged thereby.” In cases where a lien for taxes has been filed more than five years the section finally provides for a special kind of sale after all parties interested have had notice and a day in court. But nowhere in this section — and we are referred to no other — has it been declared that in all judicial sales whether founded on mortgages, judgments, recognizances, decrees or otherwise, a tax or municipal claim shall remain and continue to be a lien on the property in the hands of the purchaser, unless actually paid out of the proceeds of the sale.

We must therefore conclude that the act of 1901 manifests no legislative intent to preserve such liens from the result that would ordinarily follow a judicial sale. And this conclusion is greatly strengthened by the fact that in the Act of May 28,1907, P. L. 280, the legislature has undertaken to amend the thirty-second section of the act of 1901 by enacting the very provision which, we are asked to hold, the earlier act already contained. Since the amendment of 1907 the thirty-second section declares: “The lien of a tax or municipal claim shall not be divested by any judicial sale of the property liened, as respects so much thereof as the proceeds of such sale may be insufficient to discharge.” Here, then, is the clear legislative warrant that would have supported the appellant’s contention had the law been so written at the time of the sheriff’s sale in this case. But we do not feel at liberty to read into the act of 1901 a provision which our lawmakers enacted only in 1907. We are of the opinion, therefore, that the learned court below was right in holding that the judicial sale on the mortgage discharged the plaintiff’s lien and in entering judgment, on the case stated, in favor of the defendant.

Judgment affirmed.

Porter, J., dissents.


author: Rice, P. J.,

text:
    Pittsburg Brewers’ & Bottlers’ Supply Company’s Mercantile Tax.

      Taxation — Mercantile tax — Appeals—Certiorari.
    1. The Act of May 2, 1899, P. L. 184, entitled, “An act to provide revenue by imposing a mercantile license tax on venders of or dealers in goods, wares, and merchandise, and providing for the collection of said tax,” gives no right of appeal from the decision of the common pleas, and as the act does not impose a tax on the property, but upon the business of vending merchandise, the Act of June 26, 1901, P. L. 601, does not apply. The Supreme Court may, however, review the proceedings when brought up on certiorari.
    2. Where in such a case the record shows that the matter in dispute, and for determination by the common pleas, was not the volume of the business done, but its classification, and it appears that the common pleas made a mistake in law as to classification, the appellate court may, on certiorari, correct the error.

      Taxation — Mercantile tax — Wholesale and retail venders — Dealers.
    3. One who carries on a business of selling goods, wares and merchandise manufactured by him at a store or warehouse, apart from his manufactory, is such a vender or dealer as is liable to taxation upon the volume of his business done by him at such store or warehouse, while one who keeps a store or warehouse at his own shop or manufactory for the purpose of vending his own manufactures exclusively, is not.
    4. It is not true as a general proposition that venders of or dealers in goods, wares and merchandise must necessarily mean those, and those only, who carry on the business of selling things previously purchased, in the same form and condition, and not in the form or condition to which they have been changed after passing through some process.
    5. A brewers’ supply company which sells malt, hops, isinglass, bottles and corks to brewers, bottlers and wholesale liquor dealers, who use these articles in carrying on their business, is, as to such business, a wholesale vender within the meaning of the Act of May 2,1899, P. L. 184.
    Argued April 29, 1908.
    Appeal, No. 77, April T., 1908, by the Commonwealth, from order of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 3, sustaining an appeal from mercantile tax assessment In re Pittsburg Brewers’ & Bottlers’ Supply Company’s Mercantile Tax.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.,
    Affirmed.

      Appeal from mercantile tax assessment. Before Frazer, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in sustaining the appeal.

      J. M. Magee, with him George H. Calvert for appellant.
    If the question be raised as to whether or not the commonwealth is entitled to an appeal, our answer is that in any event the commonwealth is entitled to a certiorari, and there is sufficient on the record here to enable the court to inquire into the question: Com. v. Robb, 14 Pa. Superior Ct. 597.
    The act itself does not define the terms “dealer” or “vender.” Therefore, the popular and ordinary understanding of these terms must be considered as applying.
    The terms “vender” and “dealer” having been in common use in prior statutes under which mercantile tax was assessed, the sense in which they were used is, therefore, not open to doubt: Com. v. Hufnal, 4 Pa. Superior Ct. 301; Com. v. Bailey, Banks & Biddle Co., 20 Pa. Superior Ct. 210; Com. v. Ice Co., 23 Pa. Superior Ct. 267; Norris Bros. v. Com., 27 Pa. 494; Com. v. Campbell, 33 Pa. 380; Lamon v. Paxton, 2 Luz. L. R. 259; Com. v. Gormly, 153 Pa. 586.
    There can be no doubt that the supply company would have been required to pay the tax under the old law, and there is nothing in the act itself which indicates any intention to exempt such dealers from taxation under the new act: Com. v. Cover, 29 Pa. Superior Ct. 409.

      W. T. Tredway, for appellee.
    The subject is not to be taxed unless the language of the statute clearly imposed the obligation; for taxes are not imposed by implication. In a case of doubt the construction most favorable to the subject is to be adopted: Directors of the Poor of Schuylkill County v. School Directors of North Manheim Twp., 42 Pa. 21.
    Taxing provisions of a statute are to be construed most strongly against the government and not to be extended beyond the clear import of the language used: Appeal of City of Titusville, 108 Pa 600; Commonwealth v. Standard Oil Co., 101 Pa. 119.

      February 26, 1909:
    The argument that the words “dealer in” and “vender of,” as used in the statute, are synonymous and interchangeable terms cannot be maintained. A vendor, or vender, in its ordinary significance means one who sells regardless of the character of the property sold: Lumbert v. Woodard, 144 Indiana, 335 (43 N. E. Repr. 302).
   Opinion by

Rice, P. J.,

The Pittsburg Brewers’ and Bottlers’ Supply Company presented its petition to the common pleas, averring that the mercantile appraiser had assessed it with a mercantile license tax on the basis of its having done a retail business to the amount of $150,000 and a wholesale business to the amount of $54,000; that an appeal from the assessment was taken to and heard by the mercantile appraiser and the county treasurer, sitting as an appeal board, but they made no change in the rating; that the petitioner was dissatisfied with the rating so made; and concluding with the prayer that an appeal be allowed to the court in accordance with the provisions of the sixth section of the Act of May 2, 1899, P. L. 184. Thereupon the court allowed the appeal and fixed a day for hearing. The parties appeared, and “it appearing to the court that there are facts in dispute in the appeal,” (so the order reads) the court, by agreement of counsel of all parties interested, appointed a commissioner to take testimony. After hearing upon that testimony the court, without disturbing the action of the appraiser so far as the total volume of the appellant’s business was concerned, concluded differently from him both as to the volume of its retail business and the volume of its wholesale business, and made the following order, to which the commonwealth excepted: “In accordance with the foregoing conclusion, judgment is entered for the commonwealth for $104.50. To that extent the appeal is sustained.”

“Assessment of property for taxation is not inherently a judicial proceeding. The state exercises its powers in that regard according to its necessities and its own will as determined by the legislature, without regard to the tribunals for adjustment of disputed rights between citizens. An appeal is not of course. What appeals shall be allowed, in what manner they shall be taken or conducted, and what shall be their effect are matters regulated by statutory provision which must affirmatively appear:” per Chief Justice Mitchell in Philadelphia Company’s Petition, 210 Pa. 490. The act of 1899, under which this mercantile license tax was imposed, gives no right of appeal from the decision of the common pleas, and as it is not a tax on property, but upon the business of vending merchandise (Knisely v. Cotterel, 196 Pa. 614; Commonwealth v. Bailey, Banks and Biddle Co., 20 Pa. Superior Ct. 210; Commonwealth v. Pocono Mountain Ice Co., 23 Pa. Superior Ct. 267), the Act of June 26, 1901, P. L. 601, does not apply. But while an appeal, in the strict sense of that term, does not lie from the decision of the common pleas, there was always a limited right of review in such cases by certiorari: Kimber v. Schuylkill County, 20 Pa. 366; Hughes v. Kline, 30 Pa. 227, 231; Silver v. Schuylkill County, 32 Pa. 356. This limited revisory jurisdiction was not taken away, nor was it enlarged by the act of 1889 which denominates every appellate proceeding an appeal. This is shown in the very recent case of Schmuck v. Hartman, 222 Pa. 190. There the Supreme Court overruled a motion to quash an appeal from the judgment of the common pleas rendered on appeal from a tax assessment, and held that, “treating the appeal as a certiorari, the record is brought up for review, and if it discloses error by the court below in denying the appellants a legal right under admitted facts, such error must be corrected.” Referring now to the act of 1899 we find that the provision for appeal to the common pleas is in these words: “if the vender or dealer is still dissatisfied with the finding of the county treasurer and mercantile appraiser, or board of appraisers, in reference to the proper classification of said vender or dealer, he shall have the right of appeal to the court of common pleas of the proper county, which appeal the said court is required to hear and determine within twenty days after such appeal shall be taken, or at the next sitting thereof.” In the present case, the matter in dispute and for determination by the common pleas was not the volume of business done by the appellant but its classification. While the court did not in so many words incorporate its determination of that question in its final judgment, yet, it will be seen by looking at the order above quoted, it did so, in effect, by direct reference to what preceded. The evident intention of the court was to make it part of its adjudication as fully and effectively as if it had declared in so many words in its decree, that as to all sales in bulk of malt, hops, isinglass, bottles and corks to brewers, bottlers and wholesale liquor dealers, who use these articles in carrying on their business, the appellant should be classified as a wholesale vender and taxed accordingly. As the record shows affirmatively that this was the ground of the court’s decision, it would seem to be inconsistent with the ruling in Schmuck v. Hartman, supra, to hold that the error of law if error there be, is beyond the power of this court to correct. So far as the question of appellate jurisdiction is concerned, the question does not differ essentially from Gemas’s License, 169 Pa. 43; and Doberneck’s License, 1 Pa. Superior Ct. 99.

The act of 1899 provides in its first section that each retail vender of or retail dealer in goods, wares and merchandise shall pay an annual mercantile license tax of $2.00, and one mill additional on each dollar of the whole volume of business, gross, transacted annually, and that each wholesale vender or wholesale dealer shall pay an annual tax of $3.00, and one-half mill additional on each dollar of the whole volume, gross, of the business transacted annually. The second section then declares who shall be deemed wholesalers and who retailers in the following terms: “And it is provided that all persons who shall sell to dealers in or venders of goods, wares and merchandise, and to no other person or persons, shall be taken under the provisions of this act to be wholesalers; and all other venders of or dealers in goods, wares and merchandise shall be retailers.

The contention of the appellant’s counsel is that the terms dealer and vender have acquired by judicial construction of prior laws upon the same subject a definite meaning, which makes them synonomous, and that it is to be presumed the legislature intended this meaning to be attached to them in the construction and application of the statute in question. We recognize the soundness of the principle to which the learned counsel refer, but are not convinced that it furnishes a solution of the precise question before us. A leading case is Norris Bros. v. Commonwealth, 27 Pa. 494, wherein Black, J., said: “A dealer, in the popular, and therefore in the statutory sense of the word, is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands intermediately between the producer and the consumer, and depends for his profit, not upon the labor he bestows on his commodities, but upon the skill and foresight with which he watches the market.” Applying that definition to the facts of that case it was held that one who manufactured locomotives and sold them only at his shop or manufactory was not liable to the mercantile tax imposed upon dealers by the Act of April 22, 1846, P. L. 486, but was within the exception of the proviso to sec. 11. To the same effect is Commonwealth v. Campbell, 33 Pa. 380, wherein Justice Lowrie said: “Every manufacturer must sell his wares; but he is not therefore, classed as a ‘dealer’ in them, under the act of 1846. That law distinguishes between manufacturers and dealers; and, therefore, we must do so. A manufacturer as such is taxed for selling his wares, only when he keeps a store or warehouse away from his manufactory, in which he sells the wares, in the manufacture of which he is ‘concerned or interested’ — that is, as whole or part owner.” Commonwealth v. Crum Lynne Iron & Steel Co., 27 Pa. Superior Ct. 508, belongs to the same class of cases. So in Commonwealth v. Gormly, 173 Pa. 586, it was held that a plumber who bought valves, radiators and other plumber’s supplies, and cut and fitted them together in the shape of steam and water heating apparatus and the like which he put in buildings, and had no store or other place at which he did business as a buyer and seller, and was paid by charging for his labor and the cost of the material which he bought with a commission on the cost, was not a dealer in goods, wares and merchandise within the meaning of the mercantile tax laws then in force. In Commonwealth v. Vetterlein, 29 Pa. Superior Ct. 294; s. c., 214 Pa. 21, it was held that the maintenance of a place in the defendant’s Philadelphia factory for the purpose of selling the goods manufactured there, as well as those of the same kind manufactured at its factory in another county exclusively, was such a compliance with the provisions of the act of 1846 as exempted it from liability under the act to a mercantile license tax upon the sales at that place.

On the other hand, it was held in Commonwealth v. Thomas Potter Sons & Co., 159 Pa. 583, that a manufacturing corporation which keeps a store apart from its factory at which it sells goods manufactured by others as well as by itself, “becomes a dealer in goods, wares and merchandise within the meaning of the several acts above cited” (1830, 1841, 1846) “and must pay the same license or other tax that a natural person would be subject to in the same business.” Following that decision we held in Commonwealth v. Bailey, Banks and Biddle Co., 20 Pa. Superior Ct. 210, that the words, “vender of, or dealer in, goods, wares and merchandise,” as used in the first section of the act of 1899, include a manufacturing corporation that maintains a store apart from its factory at which it sells goods of its own manufacture as well as goods that it buys from others. In Commonwealth v. Cover, 29 Pa. Superior Ct. 409, it was held that the same words include one who maintains a store in Pennsylvania for the sale of goods manufactured by him in another state. It is thus seen that in the construction of earlier mercantile tax laws, as well as in the construction of the first section of the act of 1899, one who carries on the business of selling goods, wares and merchandise, manufactured by him, at a store or warehouse apart from his manufactory, has been held to be such a vender or dealer as is liable to taxation upon the volume of business done by him at such store or warehouse, while one who keeps a store or warehouse at his own shop or manufactory for the purpose of vending his own manufactures exclusively is not. This distinction, however, is not based on an inherent difference between the two transactions, not upon the ground that a manufacturer who sells the product of his manufactory at a store or warehouse at his manufactory is not as to that transaction a vender of goods, but upon the ground that the legislature has seen fit to declare that he shall not be taxable as such. The cases fall very far short of establishing the general proposition that venders of or dealers in goods, wares and merchandise must necessarily mean those and those only who carry on the business of selling things previously purchased, in the same form and condition, and not in the form or condition to which they have been changed after passing through some process. As we have shown, it is not invariably so, even when the liability of the vender to taxation is the question involved. But here the question involved is not whether those to whom the appellee sold were taxable as venders or dealers under the mercantile license laws, but whether they were in fact such. As to bottlers and wholesale liquor dealers, we can see little difficulty in holding that they are dealers even according to the theory of the appellant’s counsel. Ordinarily they buy to sell again. The fact that they sell in a different kind of package from that in which the goods were bought is not a sufficient ground for distinguishing them from other venders or dealers in goods, wares and merchandise in the construction of the second section of the act of 1899. There is more plausible ground for difference of opinion regarding sales to brewers. They make to sell, and therefore under the definition given in Norris v. Commonwealth, supra, it is questionable whether as to sales made at their breweries they can be called dealers. But we can find nothing in the context or in the purpose of the enactment which would warrant the conclusion that they are not venders within the section of the act of 1899 under consideration. It is reasonable to suppose that if the legislature had intended in the first clause of the section to include such sales only as are made to persons carrying on the business of buying and selling goods in an unchanged form or condition, they would not have left that qualification to uncertain inference but would have expressed it in unequivocal terms. The question whether sales of goods to venders or dealers which do not enter into the product sold by the latter or the package in which it is sold, is not involved in the question presented for our decision, and need not be discussed. We can discover no error in the ruling complained of which would justify a reversal of the judgment.

The judgment is affirmed.


text:
    Pennsylvania Railroad Company v. M. O. Coggins Company, Appellant.

      Constitutional law — Interstate commerce — Storage of goods in cars— Carriers — Railroads—Act of May 24,1907, P. L. 229.
    1. The Pennsylvania Act of May 24, 1907, P. L. 229, providing maximum car service charges, including car storage charges, that railroad companies may impose, is invalid as to goods and cars engaged in interstate commerce, in view of the fact that congress has legislated on the subject by the federal acts of February 4,1887, 24 Stat. at Large, 379, and June 29, 1906, 34 Stat. at Large, 584.
    2. When goods are shipped from one state into another and upon arrival at their destination remain in the cars placed upon public sidings, they continue a part of the interstate commerce transaction until unloaded.
    3. A state has no power to prescribe that a consignee, who has received a car the property of a common carrier of another state containing goods which have been consigned from another state, shall have practically three days of free time within which to unload the car and shall, if he wishes, have the right to retain the car, while standing upon the public sidings of the final carrier, for an indefinite period upon payment for the same at the rate of $1.00 per day.
    Argued April 29, 1908.
    Appeal, No. 201, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1907, No. 131, for plaintiff on case stated in suit of Pennsylvania Railroad Company v. M. O. Coggins Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Oklady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability for storage charges. Before Evans, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff on the case stated.

      T. P. Trimble, of Trimble & Chalfant, for appellant.
    The contention of the appellant is that after the produce arrives at its destination, and the cars containing it are. placed on a public siding subject to the appellant's control, the jurisdiction of the federal government over the same is at an end and the jurisdiction of the state government attaches: Diamond Match Co. v. Ontonagon, 188 U. S. 82 (23 Sup. Ct. Repr. 266); Kelley v. Rhoads, 188 U. S. 1 (23 Sup. Ct. Repr. 259); Pittsburg & Southern Coal Co. v. Bates, 156 U. S. 577 (15 Sup. Ct. Repr. 415); Pennsylvania R. R. Co. v. Knight, 192 U. S. 21 (24 Sup. Ct. Repr. 202).
    After a carrier has transported goods to their destination and given the consignee a reasonable time to remove the same, his character under the law as a carrier ceases and henceforth he is a warehouseman: United Fruit Company v. New York & Baltimore Transportation Company, 65 Atl. Repr. 415; McCarty v. Railroad Company, 30 Pa. 247; Illinois Central Railroad Company v. Frankenberg, 54 Ill. 88; Moyer v. Pennsylvania Railroad Co., 31 Pa. Superior Ct. 559; Shenk v. Propeller Company, 60 Pa. 109.
    And it makes no difference whether the goods are stored in a warehouse or remain in cars: Chicago, etc., Ry. Company v. Reyman, 73 N. E. Repr. 587; Gratiot Street Warehouse Company v. St. Louis, A. & T. H. Railway Co., 221 Ill. 418 (77 N. E. Repr. 675); Independence Mills Company v. Burlington, etc., Ry. Co., 72 Iowa, 535 (34 N. W. Repr. 320); Becker v. Pennsylvania Railroad Co., 96 N. Y. Supp. 1; Walters v. Detroit United Railway Company, 102 N. W. Repr. 745.
    The supreme court of the United States has decided that a state may regulate under its police power the rates charged by a warehouseman on goods shipped in from other states: Munn v. Illinois, 94 U. S. 113.
    The state has the undoubted right to regulate the rates and charges of carriers within its own territorial limits, even though such regulations may remotely affect interstate commerce, provided^ always, that it does not impose a direct burden on such commerce: Covington, etc., Bridge Company v. Kentucky, 154 U. S. 204 (14 Sup. Ct. Repr. 1087); R. R. Commission Cases, 116 U. S. 307 (6 Sup. Ct. Repr. 334); Louisville, etc., R. R. Co. v. Kentucky, 161 U. S. 677 (16 Sup. Ct. Repr. 714); Dow v. Beidelman, 125 U. S, 680 (8 Sup. Ct. Repr. 1028); Ruggles v. Illinois, 108 U. S. 526 (2 Sup. Ct. Repr. 832); C., B. & Q. R. R. Co. v. Iowa, 94 U. S. 155; Winona, etc., R. R. Co. v. Blake, 94 U. S. 180.

      James B. Miller, with him Patterson, Sterrett & Acheson, for appellee.
    Congress has acted on the subject of storage charges: Interstate Commerce Commission v. Detroit, Grand Haven, etc., Ry. Co., 167 U. S. 633 (17 Sup. Ct. Repr. 986); American Warehousemen’s Assn. v. R. R. Co., 7 I. C. R. 556; Blackman v. R. R. Co., 10 I. C. R. 352.
    The words “storage charges” in the interstate commerce act must be construed to mean storage charges such as are involved in this case: Penna. Millers’ State Assn. v. Phila., etc., Ry. Co., 8 I. C. R. 531; American Warehousemen’s Assn. v. R. R. Co., 7 I. C. R. 556; Houston, etc., Ry. Co. v. Mayes, 201 U. S. 321 (26 Sup. Ct. Repr. 491); McNeill v. Ry. Co., 202 U. S. 543 (26 Sup. Ct. Repr. 722); Brown v. Maryland, 25 U. S. 419; Leisy v. Hardin, 135 U. S. 100 (10 Sup. Ct. Repr. 681); Austin v. Tenn., 179 U. S. 343 (21 Sup. Ct. Repr. 132).
    Demurrage, storage, switching, etc., are all terminal charges, jurisdiction of which is plainly given by the act to the interstate commerce commission. Storage is only another kind of demurrage charge. The demurrage charges, as well as the storage charges, do not start until after forty-eight hours have elapsed. If it is to be held that the words “storage charges” do not mean storage at the point of destination, it must also be held that the word “demurrage” in the act does not mean demur-rage at the point of destination. It has been held by the commission that the commerce act covers demurrage, storage and terminal charges, and the disposition of cars in connection with interstate shipments in the following cases: Riddle v. Pittsburg & L. E. R. R. Co., 1 I. C. R. 374; Riddle v. N. Y., L. E. & W. R. R. Co., 1 I. C. R. 594; Heck v. R. R. Co., 1 I. C. R. 495; Independent Refiners’ Assn. v. W. N. Y. & P. R. R. Co., 4 I. C. R. 162; Cattle Raisers’ Association v. Fort Worth & Denver City Ry. Co., 7 I. C. R. 513; American Warehousemen’s Association v. Ill. Central R. R. Co., 7 I. C. R. 556; Pennsylvania Millers’ State Association v. P. & R. Ry. Co. et al., 8 I. C. R. 531; Palmer’s Dock, Hay, etc., Board of Trade v. Penna. R. R. Co., 9 I. C. R. 61.
    February 26, 1909:
    If congress has legislated in respect to such storage charges, the act of assembly of Pennsylvania in question is in conflict with the provisions of the law of the United States: Wabash, etc., Ry. Co. v. Illinois, 118 U. S. 557 (7 Sup. Ct. Repr. 4); Bowman v. Ry. Co., 125 U. S. 465 (8 Sup. Ct. Repr. 689); Gulf, etc., Ry. Co. v. Hefley, 158 U. S. 98 (15 Sup. Ct. Repr. 802); Interstate Commerce Commission v. Detroit, etc., Ry. Co., 167 U. S. 633 (17 Sup. Ct. Repr. 986).
    The Act of assembly, approved May 24, 1907, P. L. 229, which provides a maximum rate for car storage charges by railroad companies, imposes a burden on interstate commerce: Houston, etc., Ry. Co. v. Mayes, 201 U. S. 321 (26 Sup. Ct. Repr. 491); McNeill v. Ry. Co., 202 U. S. 543 (26 Sup. Ct. Repr. 722); Central of Georgia Ry. Co. v. Murphey, 196 U. S. 194 (25 Sup. Ct. Repr. 218).
   Opinion by

Porter, J.,

The plaintiff seeks to recover from the defendant charges for storage of goods in cars, which had been at different times consigned to the defendant company, in car load lots, from various points without the state of Pennsylvania, and had by the plaintiff company been carried over its lines during the final stage of such interstate transportation to the point of destination at Pittsburg, where said cars were duly placed upon the public sidings of the plaintiff railroad ready for unloading, and the defendant company, being duly notified, failed to unload the several cars, respectively, and retained said cars upon the public sidings of the plaintiff company during periods in excess of the time allowed for such unloading. The said charges are in accordance with a schedule which had been duly printed by the plaintiff, kept open for public inspection, and filed with the interstate commerce commission, as required by the act of congress approved February 4,1887,24 Stat. at Large, 379, entitled “An Act to Regulate Commerce,” and its supplements and amendments. The parties joined in an agreement as to the facts, which was filed, in the nature of a case stated, in the court below, among the facts agreed upon were the following: “All the goods shipped to the defendants in the cars shown in the said ‘Exhibit A’ were shipped subject to the schedule of charges shown on said ‘Exhibit B,’ and as said cars were not unloaded within forty-eight hours after they were placed as aforesaid, Sundays and legal holidays excluded, it became the duty of the defendant to pay the plaintiff the compensation hereinafter stated.” It is admitted that the defendant is liable for the amount claimed if such charges were subject to the provisions of the legislation by congress regulating interstate commerce. The defendant contended that the charges were subject to the provisions of the Act of the general assembly of Pennsylvania, approved May 24,1907, P. L. 229, entitled: “An act to provide the maximum car service charges, including car storage charges, that railroad companies and corporations, or associations, may charge and collect on each car loading, and not unloaded within the free time for unloading cars,” etc. This Pennsylvania statute allows a longer free time for unloading cars and fixes a less rate per day, in case of an excess of such free time, than that provided for by the schedule published by the plaintiff company and filed by it with the interstate commerce commission. The question presented is, whether the charges, when applied to goods and cars which had been consigned from points without the state and had by continuous transportation reached their destination within the state, were subject to state control or regulation. The court below held that the statute of the state was, as to the goods and cars which were engaged in interstate commerce, invalid, and entered judgment in favor of the plaintiff. The defendant appeals.

The opinion filed by the learned judge of the court below, which appears in the report of this case, vindicates his conclusion that congress has at least attempted to provide a manner in which charges of this kind by a railroad engaged in interstate commerce shall, as to such interstate transportation, be regulated. The act of congress entitled: “An act to amend an act entitled, ‘An Act to Regulate Commerce,’ approved February 4th, 1887, 24 Stat. at Large, 379, and all acts amendatory thereof, and to enlarge the powers of the Interstate Commerce Commission,” approved June 29, 1906, 34 Stat. at. Large, 584, defines “transportation,” an essential branch of interstate commerce, in such a manner as to include all the services incidental to such transportation by the carrier, from the time the loading of a car begins until the unloading thereof is completed. It explicitly provides that “all services in connection with the receipt, delivery, elevation, and transfer in transit, ventilation, refrigeration or icing, storage, and handling of property transported shall be included in the term transportation,” and requires that every carrier subject to the provisions of the act shall furnish such transportation upon reasonable request. The act further provides that, “Such carriers shall publish and file with the Commission and keep open to public inspection schedules which shall .... state separately all terminal charges, storage charges, icing charges,” etc. The appellant contends that the term “storage,” “as used in the Hepburn act, means such storage as may become necessary while the shipment is-in transit and before it arrives at its ultimate destination.” This contention finds no support in the terms of the act of congress, which manifestly intended to deal with all charges for services incidental to the transportation involving interstate commerce. The storage of goods, either in the cars or in a warehouse, upon their arrival at the destination to which they are consigned is a usual and ordinary incident of every transaction involving interstate commerce. The congress was dealing with existing conditions and in this act the term “storage” is used in direct connection with terminal charges, clearly indicating an intention to provide for the regulation of charges for those services to be rendered by the carrier after the mere movement of the goods had come to an end, and before delivery had been actually completed. When goods are shipped from one state into another and upon arrival at their destination placed upon the platform of the carrier, their removal from the platform to the freight warehouse is a part of the interstate commerce transaction: Rhodes v. Iowa, 170 U. S. 412.

The constitution of the United States vests in congress the power “to regulate commerce with foreign nations and among the several states and with the Indian tribes.” Transportation is an important branch of all commerce, and without the power to regulate the manner of introduction of goods into a state the power to regulate the mere transactions of buying and selling would be of little practical importance. ■ Commerce between the states necessarily implies the passing of property from one state to another, and this movement of goods, whether it be done by the owner thereof or through the agency of a common carrier, is subject to congressional control and regulation. The exchange of goods between the merchants of the different states is, when the shipments are in car load lots, more conveniently and advantageously effected when the transportation is continuous, the cars being loaded by the consignor in one state and the car with its contents being moved over the lines of several carriers to its destination in another state. The transportation of goods in this manner is so manifestly advantageous that it has not only come to be the usual course of business, but legislation by congress and by many of the states has been enacted in order to facilitate it or, in many cases, to require common carriers to adopt it. When a shipment is made in this manner it must very frequently, if not generally, result in the car, which is owned by a carrier domiciled in another state from which state the car has in that transaction been consigned and to which state it is to be returned, being placed upon the public sidings of the final carrier, there to be unloaded by the consignee. The cars which are the property of a railroad are thus scattered all over the country. This case illustrates that fact. Exhibit “A” attached to the case stated indicates the number of each car and the initial letters of the railroad owning the same, and out of fifty-five cars only one was the property of this plaintiff company. These cars owned by corporations domiciled in other states and there engaged in business as carriers were, respectively, sent into Pennsylvania from other states carrying goods consigned to the defendant corporation, a citizen of Pennsylvania, at Pittsburg, and were by the plaintiff company, which completed the interstate transportation, placed upon its public sidings in the city of Pittsburg, for the purpose of being unloaded by the defendant company in accordance with the terms of the interstate transportation. It cannot with any reason be contended that the unloading of the cars was not a necessary incident of the interstate transportation. If the interstate character of the transaction ceased the moment the car reached the point on the public siding where it was to be unloaded, as contended by the appellant, and the power of congress to regulate the transaction there absolutely ceased, then it is not within the power of congress to so regulate commerce between the states that all shippers and consignees shall be treated upon like terms by common carriers engaged in interstate commerce. If the contention of appellant is well founded, the carrier might, free from congressional interference, as soon as a car reaches the point upon its siding where it is to be unloaded, permit one consignee to retain the car for the storage of his goods free from any charge whatever, the company continuing to ice the car and grant any other favors that it saw fit, while charging other consignees at exorbitant rates for all services rendered.

The appellant relies, in support of its proposition that congressional control of the transaction ceases and state control supervenes when the car reaches the point upon the public siding where it is unloaded, upon several decisions by the supreme court of the United States. The cases of the Diamond Match Company v. Ontonagon, 188 U. S. 82; Kelley v. Rhoads, 188 U. S. 1; Pittsburg & Southern Coal Company v. Bates, 156 U. S. 577, and Pennsylvania Railroad Co. v. Knight, 192 U. S. 21, presented only the question of the power of the state to tax property which had been brought into the state and was for an indefinite time at rest, awaiting transportation or sale, and it was held that a state might tax the property which was receiving the protection of its laws although the property was the subject of interstate commerce, in a manner which did not impose a direct burden upon such commerce. The distinction between the power to tax goods which are the subject of commerce and the power to regulate interstate commerce is distinctly recognized and commented upon in American Steel & Wire Company v. Speed, 192 U. S. 500. The case of Munn v. Illinois, 94 U. S. 113, arose under a statute of the state of Illinois prescribing the maximum rate to be charged by warehouses of Chicago for the storage of grain, and it was there held that while the warehouses might incidentally become connected with interstate commerce they were not necessarily so connected and that the regulation did not involve an intrusion upon the power of congress to regulate commerce between the states. The principles recognized in these decisions are not of controlling force in the question here presented. The cars in question were necessarily connected with interstate commerce and were at the time it was sought to apply to them the regulation of this Pennsylvania statute actually engaged in interstate transportation. The question here presented is, has the state of Pennsylvania power to prescribe that a consignee, who has received a car the property of a common carrier of another state containing goods which have been consigned from another state, shall have practically three days of free time within which to unload the car and shall, if he wishes, have the right to retain the car, while standing upon the public sidings of the final carrier, for an indefinite period upon payment for the same at the rate of $1.00 per day? That such a law is a direct regulation of the final incident of all transportation would seem to be too clear for argument.

The national and state acts clearly relate to the same subject-matter and prescribe different rules. The national statute makes the tariff published by the carrier and filed with the interstate commerce commission the binding rate, and subjects the carrier to severe penalties in case it “ charge or demand or collect or receive a greater or less or different compensation,” while the state statute prescribes a different rate and makes it unlawful for the carrier to collect more. The carrier cannot obey one statute without violating the other. “When a state statute and a federal statute operate upon the same subject-matter, and prescribe different rules concerning it, and the federal statute is one within the competency of congress to enact, the state statute must give way:” Gulf, Colorado & Santa Fe Railway Company v. Hefley, 158 U. S. 98. Charges for storage in cars, actually engaged in interstate transportation, are a part of interstate commerce, which it is within the power of congress to regulate. The act of assembly of Pennsylvania in question constitutes a regulation of interstate commerce and is invalid and inoperative, in respect to charges for storage in cars engaged in interstate transportation: Bowman v. Chicago & Northwestern Railway Company, 125 U. S. 465; Interstate Commerce Commission v. Detroit, Grand Haven & Milwaukee Railway Company, 167 U. S. 633; Houston & Texas Central Railroad Company v. Mayes, 201 U. S. 321; McNeill v. Southern Railway Company, 202 U. S. 543; Swift & Co. v. United States, 196 U. S. 375; Wabash, St. Louis & Pacific Railway Company v. Illinois, 118 U. S. 557; Central of Georgia Railway Company v. Murphey, 196 U. S. 194.

The judgment is affirmed.


author: Bice, P. J.,

text:
    Lowenstein’s Estate.

      Landlord and tenant — Covenant to pay water rent — Assessment.
    1. Where a lessee covenants to pay “all water taxes assessed” on the demised premises, and the city where the property is situated assesses water taxes at the beginning of the last year of the term and no appeal is taken from the assessment, and the amount is certified to the collector of delinquent taxes, the lessee is not liable for anything in excess of the assessment, although an increased consumption of water during the year leads to a higher assessment for the following year.
    2. The system provided by the Acts of February 20,1857, P. L. 56, March 22, 1877, P. L. 16, and June 4, 1901, P. L. 364, for charging upon land water rates, water taxes or water rents, does not contemplate the making of two levies or assessments for the same year but only a single levy or assessment at the beginning of the year.
    Argued April 30, 1906.
    Appeal, No. 228, April T., 1908, by S. W. Vandersaal, from decree of O. C. Allegheny Co., Oct. T., 1906, No. 58, sustaining exceptions to adjudication in estate of David S. Lowenstein, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    Miller, J., filed the opinion of the court, which was as follows:
    “To pay as due all water taxes assessed on the said premises" is the measure of the legal liability of the Lowenstein partnership under their lease with the claimant. This means a legal assessment made by the proper authorities on these premises during the continuance of the lease in accordance with the provisions of the acts of assembly, or ordinances of the city of Pittsburg.
    The Act of February 20, 1857, P. L. 56, empowers councils of the city of Pittsburg to adopt schedules of rates by which all water rents shall be assessed to the owners and shall be a lien upon the premises.
    The fourth section of the Act of March 22, 1877, P. L. 16, provides that water rents for cities of the second class shall be levied in January or February of ^ach year for the succeeding fiscal year beginning April 1. The sixth section of the same act provides that water rents shall be payable during the month of June of each year.
    From the levy or assessment thus made there is no relief save by exoneration as the act provides. The assessment made in accordance with the act of assembly is a lien from April 1, whether entered or not; if unpaid in the delinquent tax collector’s office the lien is filed of record and collection can be enforcéd as in the case of any other municipal claim. The levy or assessment once made remains fixed for that period. The system of taxation relating to this branch of municipal claims is complete and entire, and the assessment so made concludes the taxing power with respect thereto for that period. By analogy the rule laid down in Moneypenny’s Estate, 181 Pa. 309, relating to collateral inheritance tax, is applicable here. The taxing power having an estimate of receipts and expenditures presumptively in its hands, before December 31 preceding, exercises its legal right to fix the tax levy and assessment for the ensuing year upon every subject-matter within its grasp, water rents, of course, included. This is a general principle, and applies to all legal assessments for taxable purposes.
    The evidence of McClain from the delinquent tax office and of the representatives from the water department clearly shows that whatever excess or deficit the meter reading indicated after the period for the assessment of taxes is not added to or taken from the assessment levied and fixed; but it is made part of or used as the basis for the following year’s levy or assessment, and rebuts claimant’s contention that the assessment is a mere estimate.
    The controversy here is limited to water rents assessed for the year 1906, that is, beginning with April of 1906 and ending with March of 1907. Every exhibit offered from the water assessment department, or from the delinquent tax office, shows on its face that the assessment for the year 1906, being the.period covered by this lease, is $1,050. It particularly appears from exhibit No. 13 that the additional water used for the latter part of 1906 fixed the water assessment for 1907, beginning with April 1 of that year. There is no pretense on the part of the water department or the delinquent tax collector’s office to include the alleged overconsumption for part of 1906 assessment in the levy for that year; but to make it the assessment for the year following, the land being liable in either case.
    The question before us is not what it might seem ought to be paid for excess water used, as ascertained after the assessment had been made, but what are the terms of the covenant binding the tenant to pay. As between the owner and the tenant of these premises the additional estimates are not within the terms of the lease. The stipulation is to pay water taxes assessed, not estimated, during the continuance of the lease; there is no stipulation to pay for the amount used.
    Nor are we concerned with what the claimant should pay the city to have his premises freed from the lien of the assessment for 1907. ' This estate’s liability under the lease is the sole matter at issue; it is determined by ascertaining the water tax assessed during the term of the lease. As that is $1,050, so must be the award in favor of the claimant, including any penalty and costs thereon for delinquency.
    Over, J., filed a dissenting opinion as follows:
    When the lease on which the claim of S. W. Vandersaal is founded was made water was furnished by the city on the premises for a fixed yearly rate, for which an assessment was made at the beginning of the year. Subsequently the system was changed, a meter installed on the premises, the amount of water furnished measured by it, and a charge made for the water actually used. Under this system an estimate was made of the amount which would probably be due the city for water used during the year, and this amount assessed against the property, the water tax being a lien thereon. But this was only a conditional assessment, and if the amount assessed was paid, and at the expiration of the year the charge for water used as shown by the readings of the meter was less than the amount assessed, the excess payment was refunded, or if it were more, the amount due in excess of the conditional assessment was added to the assessment for the next year and was payable with it. If the conditional assessment is final and conclusive as to the lessor in the lease it is also as to the lessee, and an injustice might be done to the lessee as well as the lessor. To illustrate: Suppose that by the readings of the meter in this case the city was only entitled to $200 for water used during the continuance of the lease, that amount is all the claimant would be compelled to pay the city, and yet he under the covenants in the lease could recover from the lessee $1,025, the amount of the assessment. If, however, the covenant to pay the water tax assessed on the leased premises be construed with reference to its purpose, such a result is avoided. Its purpose is to compel the lessees to pay the charges of the city for water used on the premises by them during the continuance of the lease; the amount claimed here for water rent seems to be within the intent and meaning of the covenant, and the lessees are liable therefor.
    February 26, 1909:
    The exceptions to the decree should, therefore, be dismissed.

      Error assigned was decree sustaining exceptions to adjudication.

      Willis F. McCook, for appellant.

      M. R. Trauerman, with him Alfred Cahen and C. S. Crawford, for appellee.
   Opinion by

Bice, P. J.,

Upon the distribution of the decedent’s estate, S. W. Vandersaal, the appellant, presented a claim arising out of a lease for the term of three years from January 13, 1904, made by him to the decedent and others constituting a partnership, wherein the lessees covenanted as follows: “The lessees also agree to pay as due, all water taxes assessed on the said premises, and to pay for all gas, and electric light used thereon, and will make all necessary repairs to the said building, machinery, fixtures, appliances, etc., contained in said building, or on the premises, and will keep the premises clean, free of rubbish, and in such condition as the board of health may require, during the term,' and if the lessor pays for the same or any part thereof, it will be additional rent payable forthwith.” The claim was for the unpaid water rent of 1906, which it is admitted has become a lien on the lessor’s premises. The controversy is as to the amount which under his covenant the decedent was bound to pay. The appellee insists that the amount was fixed by an assessment made by the proper city officials in 1906 for the fiscal year beginning April 1. The appellant’s contention is that this was not a final assessment in the meaning of the statute governing the subject, but was merely a preliminary estimate, or at the most a conditional assessment, and that the water rent for that year was in fact included in the assessment made in March, 1907. But as the latter assessment was not made until after the term of the lease had expired, it was not literally within the decedent’s covenant. While we think it quite clear that the decedent’s covenant cannot be construed as binding him, in the absence of a valid assessment, to pay for all water used upon the premises during the term, yet, it must be admitted, there is plausibility in the counsel’s contention that where the term of the lease and the fiscal year do not expire at the same time, the date of the assessment for water rent ought not to be absolutely controlling in the construction of such a covenant. We need not decide the latter point, however, for the objection the appellee makes to the appellant’s claim for the water rent of 1906, so far as that claim is based on the assessment made in 1907, is not merely that the latter was made after the term of the lease had expired, but that a previous assessment of water rent for the year 1906 had been made during the term from which no appeal was taken. If this be the fact, we can see no escape from the conclusion that that assessment is, as between the parties to the lease, conclusive of the amount the lessees were bound to pay in order to discharge their covenant obligation. Presumably the parties had in view the principle enunciated in Moneypenny’s Estate, 181 Pa. 309, and recently reiterated in Schmuck v. Hartman, 222 Pa. 190, and contracted with reference to the statutory provisions relative to water rent assessments in the city of Pittsburg which became a lien upon the premises to which the water was furnished, and particularly those provisions directing water rents for the ensuing fiscal year to be levied in January or February, fixing the time when they became payable and should be deemed delinquent, making them a lien upon the real estate, directing when they should be placed in the hands of the delinquent tax collector for collection, and fixing the time within which the claim therefor must be filed in the prothonotary’s office. It is enough to say, without going into an elaborate recital of these statutory provisions, that the system provided by the Act of February 20, 1857, P. L. 56, the Act of March 22, 1877, P. L. 16, and the Act of June 4, 1901, P. L. 364, for charging upon land water rates, water taxes or water rents, .does not contemplate the making of two levies or assessments for the same year but only a single levy or assessment at the beginning of the year. If there is any statutory provision applicable to the case which changed the law as to the lien of water rents, rates or taxes assessed upon the premises in which a meter is installed, and in such case authorized a conditional assessment to be made at the beginning of the year and a final one at the end of the year, it has not been called to our attention. It will be seen from the foregoing observations that the case turns largely on the interpretation of the acts of the city relative to the subject-matter in controversy, namely, the water rent charged on the premises in 1906. The record in the bureau of water assessments, department of public works, of what is claimed to be the assessment made in that year is somewhat obscure. It shows the meter record of the quantity of water used during the year 1905, the cost of the water ($1,048.24) computed at meter rates, the estimate ($3,200.84) of the water rent for that year, inferably made at the beginning of the year, and an exoneration of the difference. Then appear the words and figures “Est. for 1906, $1,050.” This was the amount certified by the department to the city treasurer and by him to the collector of delinquent taxes, as the water rent charged against the premises for the year, and the latter so entered it in his record and proceeded to collect it. This assessment, as under all the evidence we think it must be deemed, was apparently based on the consumption of water during the preceding year as shown by the meter record. When the time came for making the assessment for the year 1907, the department ascertained from the meter record during the time it was in operation in 1906 and by estimates during the part of the year it was not in operation, the quantity of water, approximately, used in that year, computed the cost at meter rates, deducted from this sum $1,050, which as we have seen was put in process of collection as the amount of the assessment for 1906, and added to this remainder the estimate for 1907. The total thus arrived at was denominated in the statement of delinquent taxes as water rent for 1907, and viewed in the light of the record of the department of public works, as well as the testimony of the officials, it must be so regarded. Whether made on a proper basis or not, it was not in any proper sense a revision, an alteration or an amendment of the assessment of 1906. The latter remains unchanged and outstanding. If the decedent had paid it when it was certified to the delinquent tax collector, he would have discharged his covenant obligation to pay as due all water taxes assessed on the premises during his term, and nothing occurred since which enlarged his obligation so as to include any part of the assessment imposed in 1907 after his term expired.

The opposing views regarding this case are well set forth in the opinions filed by the learned judges below. But upon full consideration we are led to concur in the conclusion reached by the majority, and substantially for the reasons set forth in their opinion, to which we refer.

The decree is affirmed at the costs of the appellant.