text:
    Mitchell v. Edeburn, Appellant.

      Brokers — Beal estate brokers — Commissions—Contradiction of testimony —Question for jury.

    In an action to recover commissions on a sale or exchange of real estate the defendant although admitting that an agreement had been made averred that it was conditional only, and was not to be carried out if the defendant needed the money provided by the agreement-for a mining enterprise in which he was interested. He testified that the money was needed in the enterprise, and that the agreement was never carried out. The evidence showed that nothing was said about money when the negotiations commenced nor when the property was placed in the hands of the plaintiff for sale. At the trial a juror asked whether there was “any evidence that there was anything said about money when they entered into these proceedings," to which the court replied: “Nothing was said about money. I am leaving to you the whole case whether there was any understanding as to payment of money or not, or that the defendant could finally withdraw the proposition when he got ready.” Held, (1) that the answer of the court was not ground for reversal of a verdict and judgment for plaintiff; (2) that the case was for the jury on conflicting evidence, and that a judgment for plaintiff should be sustained.

      Practice, C. P. — Trial—Striking out testimony — Continuance.
    Where objectionable testimony is at once stricken out by the court, and no reference is made to it thereafter, the admission of such testimony is not ground for reversal where the appellate court is not persuaded that the appellant’s case was prejudiced by the testimony.
    The admission of incompetent evidence and the subsequent withdrawal of it before argument is not of itself ground for continuance.

      Appeals — Certification by judge — Defective record.

    An appellate court will be justified in refusing to sustain an appeal where it appears that the record of the evidence, the charge of the court, and the answer to points was not certified by the trial judge at the time of the appeal, and not until a day or two before the case was argued in the appellate court, and at a time when the trial judge had ceased to be a member of the trial court.

      Appeals — Assignment of errors — Exception to charge.

    Where the whole of the charge is assigned as error, the whole charge must be quoted in the assignment.
    Argued April 30, 1908.
    Appeal, No. 209, April T., 1908, by defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 661, on verdict for plaintiff in case of Charles G. Mitchell v. W. A. Edeburn and Rachel L. Edeburn.
    Before Rice, P. J., Porter,- Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover commissions on real estate.
    The facts are stated in the opinion of the Superior Court.
    Plaintiff presented the following points;
    1. If the jury believe from the evidence that the plaintiff, Charles G. Mitchell, produced to the defendants a purchaser in the person of John Z. Levy to whom a proposition of sale or exchange was made by or on behalf of the defendants, and that said Levy in good faith accepted said proposition, then a sale was made and the plaintiff is entitled to recover. Answer: Affirmed. [2]
    2. If the jury believe from the evidence that the defendants and John Z. Levy entered into a written agreement for the sale or exchange of certain real estate which included the real estate of the defendants described in plaintiff’s statement of claim filed in this case, and that said agreement was entered into by the defendants and said Levy as the result of the negotiations of the plaintiff acting for and as the agent of the defendants, then the plaintiff is entitled to recover. Answer: Affirmed. [3]
    The court charged, inter alia, as follows:
    [If Mr. Cochran put this property into Mr. Mitchell’s hands and Mr. Mitchell understood at the outset that he was to get a purchaser, but that Mr. Cochran was not bound to accept that purchaser if it was not convenient to pay the money, then Mr. Mitchell could not recover. But if that was not the understanding, but Mr. Mitchell was just employed to sell this property, and if he procured a purchaser for the property, although Mr. Cochran at the end refused to carry the transaction through, that would not relieve the defendants from the payment. Because, if Mitchell was employed to sell the property, and in good faith set about the sale of it, and finally secured a purchaser, and there is no doubt he had secured a purchaser, if you believe the testimony of Mr. Levy, and in fact, all the testimony in the case indicates that a purchaser had been secured upon the terms suggested by Mr. Cochran. If you believe that, and believe that Mitchell did not understand at the outset that if he did sell the property Mr. Cochran would ultimately have the right to say whether he would reject the purchaser because he could not raise the money, then the plaintiff would be entitled to recover.] [4]
    [If Mitchell performed his labors and secured a purchaser, and it was not understood that Mr. Cochran could turn the deal down at' the last for any reason he wished, then the plaintiff would be entitled to recover, and that, regardless of the question of Mr. Cochran refusing at the last to consummate the deal.] [5]
    [He, Mitchell, notified Mr. Levy, of course, that the papers had been signed, and if the reason why the transaction was not carried out was because Mr. Cochran could not raise the money at the time, as I have said to you, that would not be an answer to Mr. Mitchell’s claim; he would still be entitled to recover, unless when he entered into the transaction in the first place it was understood Mr. Cochran could refuse to take it.] [6]
    [But Mr. Mitchell was entitled to have his commissions, whether Mr. Cochran agreed to pay them or not, at the time of this conversation.] [7]
    Verdict and judgment for plaintiff for $596.18. Defendants appealed.
    ■ Errors assigned amongst others were (1) answer of court to juror’s question as recited in the opinion of the Superior Court; (2-7) above instructions, quoting them; (8) in refusing to withdraw a juror and continue the case, and (9) that the charge as a whole was inadequate and misleading, but not quoting the charge.

      J. M. F. Carpenter, of Carpenter & Chalfant, with him C. S. Cochran, for appellants.
    In order that a broker may recover his commissions it must appear that he procured a buyer on the terms fixed by the seller. He must be the agent of the seller and must act in the utmost good faith toward his principal: Pratt v. Patterson, 112 Pa. 475; McCaffrey v. Page, 20 Pa. Superior Ct. 400.

      George H. Rankin, for appellee,
    cited: Hipple v. Laird, 189 Pa. 472; Sweeney v. Oil & Gas Co., 130 Pa. 193.
    October 12, 1908:
   Opinion by

Henderson, J.,

The plaintiff was employed to sell or exchange certain pieces of real estate. belonging to Rachel L. Edeburn. The defendants had given a power of attorney to Mr. Cochran and the plaintiff’s engagement was through him. The evidence shows that pursuant to his employment the plaintiff entered into negotiations with Mr. Levy and secured from him a proposition to exchange real estate owned by him for that belonging to the defendants on condition that the latter pay to Levy $2,000 in addition to the real estate to be conveyed. The plaintiff alleged that this proposition was communicated to Cochran; that after examining the Levy property he proposed to accept Levy’s offer if the cash difference was fixed at $1,500, and that the plaintiff was authorized to submit that proposition to Levy. Thereupon, the plaintiff communicated to Levy the modified proposition which the latter then accepted. It was further shown by the plaintiff that the verbal agreement was reduced to writing and submitted to Cochran who suggested certain modifications in form and stated that the contract as revised was satisfactory and that the deal was closed. Mitchell then notified Levy who came to his office and signed the contract. Shortly afterwards Cochran came to the plaintiff’s office on the latter’s notice and signed the agreement. It was prepared in triplicate and Cochran took one of the copies away with him. Afterwards he returned to the plaintiff’s office and notified him that the deal would not be carried through and at the same time erased his name from the contract. The plaintiff alleges that the agreement to sell was unqualified and absolute and that the contract was signed by the defendants’ attorney in fact for the purpose of carrying out the exchange of property. The defendants allege that the acceptance of Levy’s offer was conditional and contingent on the necessity likely to be imposed on one of the defendants of raising a considerable sum of money in connection with a mining operation in which he was engaged; that the contract in writing was signed with the express understanding between the attorney in fact and the plaintiff that the latter was to hold it until it should be ascertained whether it would be necessary for Mr. Edeburn to furnish the money referred to in aid of the mining enterprise. The controversy between the parties arises at this point and is one of fact. If the plaintiff’s evidence is believed it makes out a clear case of an employment of him as a real estate broker and of the performance of his undertaking by bringing together the defendants’ agent and Mr. Levy between whom an agreement was entered into verbally and in writing for the exchange of the real estate which the defendants owned, as a consequence of which the plaintiff is entitled to his commission. The defendants met the plaintiff’s claim not by denying that he was employed to dispose of their property or that Mr. Levy was willing and able to carry out his proposition, but with the allegation that the negotiation was made subject to the probability that money might be called for in the mining enterprise in which event the exchange would not be made because it would be inconvenient to raise the boot money; that the necessity to provide funds for the mining company arose and that the condition on which the exchange of land was to be abandoned existed as a result of which the defendants were under obligation neither to the plaintiff nor Levy.

Two subjects involving the payment of money were referred to in the negotiation between Mr. Cochran and the plaintiff. One was the payment of boot on the exchange and the other was the amount likely to be called for in the mining business. During the progress of the delivery of the charge to the jury, one of the jurors asked the court whether there was "any evidence that there was anything said about money when they entered into these proceedings,” to which the court replied, “Nothing was said about money. I am leaving to you the whole case whether there was any understanding as to payment of money or not or that Mr. Cochran could finally withdraw the proposition when he got ready.” This answer is made the subject of the first assignment of error. It is not clear to what the juror referred; if to the payment of boot the court was strictly correct in saying that nothing was said about that when the parties commenced their negotiation. If the reference was to the raising of money for the mining company the evidence tends strongly to show that that was not referred to when the property was placed in the hands of the plaintiff for sale. But whatever may have been the point to which the juror referred the court evidently intending to qualify the first part of 'the answer immediately instructed the jury that he left to them the determination of the question whether there was any understanding as to the payment of the money or not. The jury could not have failed to see that they were at liberty to determine what the evidence was on that subject and to apply it as in their judgment the case required. If a more explicit answer were desirable it was the duty of the defendant to call the attention of the court to the matter. The second and third assignments relate respectively to the affirmation of the plaintiff’s first and second points. These points are predicated of the evidence as presented by the plaintiff and were properly affirmed. They were apparently drawn in the light of Sweeney v. Oil and Gas Co., 130 Pa. 193. The court did not by such affirmance instruct the jury that any proposition presented by the agent to a prospective purchaser and accepted by him would bind the principal. The proposition presented by the plaintiff was the defendants’ proposition as communicated to the plaintiff by Mr. Cochran. It was not accepted, but a counter-proposition was presented by Mr. Levy which the plaintiff says was accepted by the defendants’ attorney in fact, and it was the acceptance of the latter proposition upon which the plaintiff relied and with reference to which the points were presented. The court had already instructed the jury that the plaintiff could not recover unless he had procured a purchaser who was accepted by the defendants. The points were clearly pertinent and the affirmance correct if the facts were as claimed by the plaintiff, and the verdict of the jury being favorable to the plaintiff that controversy is settled. The fourth, fifth, sixth and seventh assignments criticise the charge of the court, but we do not find a sufficient basis upon which they may be supported. The charge is to be considered in connection with the issue joined and the evidence presented by the contending parties. It was conceded that the plaintiff was employed to make the sale or exchange of the defendants’ property. It was alleged that the offer of Mr. Levy was accepted unconditionally and that a contract in writing was entered into in conformity thereto. The defendants asserted that there was not an absolute acceptance; that the whole negotiation was conditional and that the plaintiff was so instructed and so agreed. The court was within the limits, therefore, in instructing the jury that if the plaintiff was employed to make the sale or exchange and procured a party satisfactory to the defendants as claimed by the plaintiff, the latter was entitled to his compensation unless it was understood that the defendants might withdraw from their bargain after it was made if they saw fit so to do. This was the issue presented to the jury by the charge and we think this was plainly and properly done. Regard is to be had to the evidence in determining the relevancy and accuracy of the charge, and taking all of the testimony into consideration that given by the judge is not open to criticism. The eighth assignment is without merit. The objectionable testimony was at once stricken out by the court on request of the defendants’ counsel and no reference was made to it thereafter. No exception was taken to the refusal of the court to withdraw a juror and no sufficient reason has been suggested why the same should have been done. The admission of incompetent evidence and the subsequent withdrawal of it before argument is not of itself ground for continuance: Rathgebe v. Penna. R. R. Co., 179 Pa. 31. We are not persuaded that the defendants’ case was prejudiced by the testimony which was immediately stricken out on motion. The ninth assignment of error is in violation of rule XV. of this court, as it does not quote the whole of the charge excepted to: Kaufman v. R. R. Co., 210 Pa. 440.

There is another objection to the appellants’ case. It appeared at the argument that the record of the evidence, the charge of the court and the answers to the points was not certified by the trial judge at the time of the appeal and not until a day or two before the case was argued in this court. The case was then certified by the judge who presided at the trial but who had ceased to be a member of the court at the time the certificate was given. The record is defective, therefore, and the appeal could not be sustained for this reason. We have deemed it advisable, however, to consider it on its merits.

The judgment is affirmed.


source: Caselaw Access Project

author: Henderson, J.,

license: Public Domain

text:
    Mikesell, Appellant, v. Wehrle.

      Deed — Option—Variance in description — Coal—Reformation of instrument — Equity.
    An owner of coal land gave an option reserving to himself “twenty-five to thirty acres of coal in the tops of the hills.” The person receiving the option exercised it, and had his attorneys prepare a deed in which the reservation was described as the “ seam or bed of coal which may be in, upon, or under the above-described premises known as the Pittsburg Seam.” It appeared that there was no coal known as the Pittsburg seam on the premises. The variance in the description in the deed from that in the option was the result either of a deception practiced on the grantor, or was a mutual mistake as to the name of the vein reserved. The evidence was uncontradicted that the coal reserved was an actual vein known to the grantee, and there was evidence that at the time the deed was executed and delivered representations were made to the owner by the grantee that the description in the deed covered the same body of coal referred to in the option. Held, that the grantor was entitled to have the deed reformed so as to read into it the description contained in the option.
    Argued May 4, 1908.
    Appeal, No. 204, April T., 1908, by plaintiff, from decree of C. P. Indiana Co., June T., 1906, No. 1, dismissing bill in equity in case of Daniel Mikesell v. R. W. Wehrle and Wm. M. Moore.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Bill in equity to reform a deed. Before Telford, P. J.
    The trial judge filed the following opinion:
    FINDINGS OF THE JUDGE.
    1. That the plaintiff is the owner of a tract of land in Burrell township, containing 104 acres, more or less, and on June 17, 1902, made an optional agreement for the sale of the coal thereunder, with mining rights and privileges, to William M. Moore, “ excepting and reserving twenty-five to thirty acres of coal in the tops of the hills.”

      2. That R. W. Wehrle, under agreement, acquired the interest of William M. Moore in said optional agreement.
    3. That William M. Moore accepted said optional agreement.
    4. That in 1904 plaintiff opened “ the coal in the tops of the hills” claimed by him under the reservation and has since worked this vein.
    5. That this vein is about twenty-five to thirty acres in extent, is close by the house, is the only vein on the premises answering the description in the optional agreement, and is the vein contemplated by the parties to that agreement.
    6. That the vein alleged by R. W. Wehrle to have been lately opened on the plaintiff’s lands, is limited in extent not exceeding two. acres, was not known to the plaintiff and was not in contemplation of the parties to the optional agreement.
    7. That in March, 1903, R. W. Wehrle had knowledge of the existence of the optional agreement and made an offer through J. D. McCracken to Mikesell “for the coal he had reserved and the surface;” Wehrle also was told by Mikesell that he would reserve the. top seam and that Moore had an option.
    8. That prior to January 16, 1905, the defendants caused a deed to be prepared for the plaintiff to execute to Moore and another for Moore to execute to Wehrle; that these deeds are substantially alike and instead of the reservation contained in the optional agreement, contained a reservation of the “ seam or bed of coal which may be in, upon or under the above described premises known as the ‘ Pittsburg Seam.’ ”
    9. That on January 16, 1906, R. W. Wehrle, who resides in Indiana, Pa., and William M. Moore, who resides in Greens-burg, Pa., by arrangement, met in Blairsville with A. E. Fretts and D. S. Potts of Greensburg; that the purpose of this meeting was to secure the execution of a deed by Mikesell to Moore for the coal underlying the tract owned by Mikesell; and a deed from Moore to Wehrle; that Wehrle employed Jacob Geib, a justice of the peace of Blairsville, to go with Moore, Fretts and Potts to the home of Mikesell and take an acknowledgment of said deed, Wehrle paying the justice for his services and hiring and paying for the conveyance in which they went; that Wehrle gave to the justice the sum of $800 to pay to Mikesell the cash payment; that Moore, Fretts, Potts and the justice went to Mikesell’s, tendered the deed and demanded its execution; that Mikesell refused to execute the deed until he was assured by Moore that the deed was right and like the optional agreement and thereupon he signed it, the justice taking the acknowledgment and paying to Mikesell the sum of $713.33; Moore, Fretts, Potts and the justice then returned to Blairsville and the justice repaid to Wehrle the residue of the $800, and Moore delivered to Wehrle the Mikesell deed and also the deed for the same coal which Moore had acknowledged the same day before coming to Blairsville.
    10. That in January, 1906, Wehrle went to the home of Mike-sell and notified him not to dig the vein which Mikesell had opened in 1904; that then and there Wehrle claimed that Mikesell had reserved the “Pittsburg Vein and it had run out before it came there,” and upon Mikesell claiming that he had reserved and still owned the top seam of coal Wehrle said he had sent him a good justice of the peace.
    ' 11. That in the securing of the deed from Mikesell to Moore Jacob G. Geib, justice of the peace, was the agent of Wehrle and participated in the transaction by the payment to Mikesell of the cash consideration.
    12. That there is no vein of coal in the neighborhood of the Mikesell farm known as the Pittsburg Vein, and the vein reserved by Mikesell is above the house, close by.
    DISCUSSION.
    There is evidence in this case sufficient to justify the conclusion that in the execution of the deed from Mikesell to Moore, Mikesell was deceived and was led to believe that the coal reserved in his option was also reserved to him in his deed. Jf this proceeding affects the rights of Moore, one of the defendants, only, an order would be made that the deed be reformed according to the first prayer of the bill. The rights of William M. Moore, however, had passed to R. W. Wehrle, and unless he participated in or was cognizant of the fraud, he could not be affected by it. There is no direct evidence that he had such knowledge. Circumstances are shown from which it might be inferred. He offered to purchase from Mikesell the surface and the coal reserved at a price named by him at a time when no other coal above the vein outcropping near Mikesell’s house was known by him to exist.
    He participated in closing the contract by the execution of a deed from Mikesell to Moore through Jacob G. Geib, a justice of the peace, who represented him in the transaction in so far as the payment of the money was concerned, but no act of his or his agents, so far as we can discover from the testimony, induced the conveyance nor can we certainly conclude that the defendant, Wehrle, knew that the clause in the deed differed from that contained in the option, when he accepted the conveyance and paid or secured the payment of the purchase money to William M. Moore. The evidence to reform a contract must be clear, precise and indubitable and must establish the fact relied upon beyond a reasonable doubt: Breneiser v. Davis, 141 Pa. 85; Reed v. Horn, 143 Pa. 323; Boyertown Nat. Bank v. Hartman, 147 Pa. 558.
    CONCLUSIONS OF LAW.
    In the absence of satisfactory evidence that R. W. Wehrle,at the time he took title from William M. Moore, knew of the departure from the reserve clause in the agreement, or had conspired with William M. Moore to procure a deed in the form which it now appears by inducing the execution of such a deed by Mikesell, it would be unreasonable that he should now be prejudiced by such a change in its terms. The bill ought therefore to be dismissed at the cost of the plaintiff.
    And now, August 9, 1907, the bill is dismissed at the cost of the plaintiff.

      D. B. Taylor, for appellant,
    cited: Cook v. Liston, 192 Pa. 19; Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Stauffer v. Young, 39 Pa. 455.

      J. N. Banks, with him Cunningham & Fisher, for appellees,
    cited: Stine v. Sherk, 1 W. & S. 195; Boyertown Nat. Bank v. Hartman, 147 Pa, 558; Dorris v. Morrisdale Coal Co., 215 Pa. 638; Young v. Oil Co., 194 Pa. 243.
    October 12, 1908:
   Opinion by

Henderson, J.,

' The learned trial judge found that the evidence in this case was sufficient to justify the conclusion that in the execution of the deed from the plaintiff to Moore the grantor was deceived and was led to believe that the coal reserved in his option was also reserved in his deed. The soundness of this conclusion becomes apparent on an examination of the evidence. It is clearly shown that the plaintiff intended to and, in his option, did reserve “25 to 30 acres of coal in the tops of the hills” and that this was well understood by Moore; that the deed to the latter and by him to Wehrle were prepared by their attorneys under instructions from the defendants in which deeds the .reservation was described as the “seam or bed of coal which may be in, upon or under the above described premises known as the Pittsburgh -seam” and that at the time the plaintiff’s deed was executed and delivered it was represented to him that the description in the deed covered the same body of coal referred'to in the optional agreement and secured to the plaintiff the same title which he reserved under that agreement. It was proved and is admitted by Wehrle that there is no Pitts-burg seam of coal on the plaintiff’s farm and the reservation in the deed by its terms did not secure any coal to the plaintiff. To hold that Moore could assert a title to all the coal on the plaintiff’s farm would be to countenance a gross injustice and even if the parties were merely mistaken in supposing that the vein of coal which was intended to be excepted from the grant was the “Pittsburgh vein” the plaintiff would be entitled to relief as against Moore. A mutual mistake in naming the excepted body of coal would not prevent the plaintiff from asserting his title to that which was in contemplation by the parties and intended to be covered by the exception. But we think the court should have gone further and held that the defendant, Wehrle, was alike chargeable with the consequences of the change of the terms of the exception in the deed from those used in the optional agreement. Wehrle knew that the plaintiff had reserved twenty or thirty acres of coal in the upper vein and made him an offer therefor. His contract with Moore was for the payment of $5.00 an acre more than the latter had agreed to pay to the plaintiff. The deeds from Mike-sell to Moore and from Moore to Wehrle were prepared under the direction of Wehrle by his attorneys who were also the attorneys of Moore. The money paid to Mikesell at the time his deed was delivered was paid directly by Wehrle through Mr. Geib, a justice of. the peace. No money was paid at the time to Moore. Geib was employed by Wehrle to go to Mikesell’s house with Moore to take Mikesell’s acknowledgment of his deed and to pay him the purchase money then due. He was acting wholly in the interest of Wehrle in the transaction. It was understood by the parties present at the time when Mikésell’s deed was acknowledged and delivered that the coal excepted and reserved therein was the same which was described in the optional agreement and Geib paid Wehrle’s money to Mikesell for the deed to Moore' on that understanding. Moore was merely a conduit through which the title passed from Mikesell to Wehrle. He had contracted with Wehrle to sell the coal secured under the option before the Mikesell deed was executed, and the transaction as closed by Geib, Wehrle and Moore was in fact in the interest of Wehrle who was represented by Geib. The deeds of Mikesell to Moore and from Moore to Wehrle were delivered to the latter at the same time and the same day they were executed. There was some contradiction of testimony as to whether the reservation in the deed was read to Mikesell before he executed the conveyance, but there is no dispute about the fact that the coal reserved was the vein of coal above the house known both by Moore and Mikesell which was said to be the Pittsburg vein. It is now contended by Wehrle that all the plaintiff secured by his reservation was the Pittsburg vein and that there is no Pittsburg vein on the farm and the plaintiff has been notified not to mine coal on the vein to which he alleges the reservation applies. The evidence makes it very clear in our view of the case that Wehrle is chargeable with the consequences of the change in the description of the exception and reservation in the deeds and that whether this change was the result of a deception practiced or a mutual mistake as to the name of the vein reserved, the plaintiff is entitled to have the reservation carried into the deed in the form in which it existed in the contract of option. The status of the parties will thereby be set forth -in the deed as intended and expressed in the contract and on this foundation their rights may be asserted and defended.

The decree is reversed and it is now ordered and decreed that the bill be reinstated, that the deed from Daniel Mikesell to William M. Moore dated January 16, 1905, and the deed of the same date from William M. Moore and Mary A. Moore, his wife, to R. W. Wehrle be reformed by inserting in each of the said deeds instead of the words “ excepting and reserving to the parties of the first part, their heirs and assigns forever, any and all of that certain seam or bed of coal which may be in, upon or under the above described premises known as the ' Pittsburgh Seam ’ ” where the same appears in the said deeds the words following: “excepting and reserving 25 to 30 acres of coal in the tops of the hills and containing 104, one hundred and four acres, more or less’’ and that the.record of the said respective deeds in the office of the recorder of deeds of the county of Indiana be amended in conformity with this decree. It is further ordered that the costs of this appeal be paid by the appellees.


author: Beaver, J.,

text:
    Commonwealth v. Yocum, Appellant.

      Appeals — Assignments of error — Defective assignments — Assignments embracing more than one point — Assignments not self-sustaining.

    Rule XIV is violated by an assignment of error in the following form: “The conclusions set forth in the opinion filed August 20, 1907,,, are not justified by the record and testimony offered for the consideration of the court in this case,” and then follow five distinct specifications as to which the court erred.
    Rule XIV is violated by an assignment of error in the following form: “The court erred in overruling appellant’s exceptions filed to No. 195 May Term of the Court of Common Pleas of Somerset County, Pa., in substance as follows:” Then follow as the substance of this assignment, thirty-seven distinct exceptions.
    Rule XV is violated by an assignment of error in the following form: “The court disregarded the appellant’s objections and exceptions to questions asked by the appellee at the time of taking the depositions, the answers sought in relation to which were calculated to amend their record and proceedings in essential particulars.”
    Rule XV is violated by an assignment of error in the following form: “The court took an improper view of the matters in relation to this case prior to April 12, 1906. He should have considered the various transcripts as evidence impeaching the transcript filed April 27, 1906.”
    Assignments of error are insufficient which do not quote the opinion or decree to which exception is taken, or any part of it, and do not refer to the pages at which the rulings of the court, the findings of fact or conclusions of law, to which exception is taken, may be found.

      Summary conviction — Payment of fine and costs — Jurisdiction Common pleas.

    Where the defendant in a summary conviction voluntarily pays the fine and costs, he has no standing thereafter to maintain an appeal in a court of common pleas.
    Argued May 5, 1908.
    Appeal, No. 176, April T., 1908, by defendant, from order of C. P. Somerset Co., May T., 1906, No. 195, dismissing appeal from summary conviction in case of Commonwealth v. T. J. E. Yocum.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Certiorari to a summary conviction for violation of a borough ordinance.
    The opinion of the Superior Court states the case.

      Errors assigned are set forth in the opinion of the Superior Court.

      T. J. E. Yocum, with him J. A. Berkey and Clarence L. Shaver, of Berkey & Shaver, for appellant.

      J. L. Pugh, for appellee.
    October 12, 1908:
   Opinion by

Beaver, J.,

When this case came on to be heard, a motion was made to quash the appeal, for the reason (among others) that no assignments of error appeared in the paper-book of the appellant. The assignments having been filed with the prothonotary, as required by our rule, upon motion permission to print them was granted and the motion to quash overruled. The assignments were subsequently printed and the printed copy filed.

None of these assignments, however, is in accordance with our rules. The first and fourth are in flagrant violation of our rule XIY.

' The first is that, “The conclusions set forth in the opinion filed August 20th, 1907, are not justified by the record and testimony offered for the consideration of the court in this case,” and then follow five distinct specifications as to which the court erred.

The fourth is-. “The court erred in overruling appellant’s exceptions filed to No. 195, May Term' of the Court of Common Pleas of Somerset County, Pa., in substance as follows:” Then follow, as the substance of this assignment, thirty-seven distinct exceptions.

It is very clear that these assignments are in direct conflict with the rule above mentioned, which provides that: “ If any assignment embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.”

The second and third exceptions are contrary to our rule XV. The second assignment is: “The court disregarded the appellant’s objections and exceptions to questions asked by the appellee at the time of taking the depositions, the answers sought in relation to which were calculated to amend their record and- proceedings in essential particulars.”

The third assignment: “The court took an improper view of the matters in relation to this case prior to April 12, 1906. He should have considered the various transcripts as evidence impeaching the transcript filed April 27th, 1906.”

What were the appellant’s objections and exceptions and what the questions to which they applied, which the court disregarded? In what respects were they calculated to amend the record and proceedings in essential particulars? We are entirely at a loss to understand, so far as the assignment is concerned, what particulars are referred to. What was the improper view of the matters in relation to this case prior to April 12, 1906, taken by the court, and how was that improper view expressed? Was it in an opinion or findings of fact or conclusions of law? "What were the various transcripts which should have been considered as tending to impeach the transcript filed April 27,1906, and in what manner was this question disposed of? Neither of these assignments is self-sustaining,- and we are not informed in any way as to the manner in which the court disposed of the various objections and exceptions which are referred to, much less is the action of the court disposing of them quoted totidem verbis in the assignment.

The fifth and sixth assignments are practically of the same character. They do not quote the opinion or decree, to which exception is taken, or any part of it, nor in any of the assignments is there a reference to the pages at which the rulings of the court, the findings of fact or conclusions of law, to which exception is taken, may be found. So far as we are able to gather the substance of the appellant’s objections to the proceedings in the court below, upon the certiorari from the summary conviction of the justice of the peace who imposed the fine upon him, they are of a technical character and refer rather to alleged irregularities in the date and other particulars in regard to the ordinance, under which the fine was imposed, than to matters of substance in regard to the validity of the ordinance itself.

Assuming, if we may, the regularity and sufficiency of the assignments of error, we are unable, upon such examination of the general questions raised as the record permits, to convict the court below of error in disposing of them, particularly in view of the fact that the defendant, having voluntarily paid the fine imposed by, and the costs incurred in, the proceedings before the justice of the peace, the court of common pleas had no jurisdiction in the premises.

In Comth. v. Gipner, 118 Pa. 379, in a summary conviction for a violation of the Sunday laws, where the fine and costs had been voluntarily paid by the defendant, it was'said by Mr. Justice Williams: "The fact that the evidence was sent up by the magistrate did not justify the Common Pleas in an attempt at a retrial of the case upon the merits, nor make it any part of the record. But if it had been otherwise the case was at an end before the certiorari issued, by the voluntary payment and satisfaction of the fine and costs, and the Common Pleas had no authority in the premises.”

This seeming to be the case here, the action of the court of common pleas in overruling the defendant’s specifications of error and affirming the judgment of the justice of the peace, would seem to have been correct.

The judgment is affirmed and the appeal dismissed at the costs of the appellant.


text:
    Shannon to use v. Cohlhepp, Appellant.

      Appeals — Assignments of error — Misquoting charge.

    An assignment of error which misquotes the charge violates rule XV in regard to assignments totidem verbis.

      Contract — Lumber contract — Price—Charge—Points.
    On an issue to determine the amount due on a lumber contract where the evidence definitely fixes the contract price, and the issue is narrowed down to a difference between the parties in their respective measurements of the lumber, and of the dates on which it should be credited, the trial judge commits no error in instructing the jury that the rights of the parties are fixed to a credit for not more and for not less than the conceded contract price.

      Contract — Judgment—Interest.
    Where the defendant in a judgment entered upon a bond, bearing interest, agrees to pay the judgment by deliveries of lumber, upon which deliveries credits are to be allowed as of their several dates, plaintiff will be entitled to interest on unpaid balances.
    Argued May 6, 1908.
    Appeal, No. 162, April T., 1908, by defendant, from judgment of C. P. Clarion Co., May T., 1907, No. 163, on verdict for plaintiff in case of I. M. Shannon to use of Geo. Zacherl v. Peter W. Cohlhepp.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias to revive a judgment.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows:
    [Under the pleadings in the case, the evidence offered in support thereof, and the answers to the points submitted by the respective parties, the dispute in the case is down to a difference between the parties in their respective measurements of the lumber and of the size of which it should be cut.] [1]
    . [The defendant, in support of the allegations contained in his affidavit of defense, offered such testimony which if believed by you would tend to prove that he delivered to Mr. Zacherl in his planing mill at Marble, lumber at various times and in various amounts to the aggregate of 65,894 feet. The plaintiff, Mr. Zacherl, says that he received 62,134 feet and that he is willing to allow a credit and have you enter it on your docket for this amount of lumber at $12.00 per thousand.] [2]
    1. The written contract provided that the defendant should pay the judgment bond of $800 in lumber at $12.00 per thousand feet. And even if the alleged notice by George Zacherl to Peter Cohlhepp, to wit: that he did not want and could not use any short lengths, but demanded twelve and sixteen foot lengths, be true, such evidence would not be sufficient to vary the said written contract and allow the defendant to charge more than $12.00 per thousand for the lumber thereafter furnished. Answer: Affirmed. [3]
    2. Even if the allegation of the defendant be true that upon notice and demand from Zacherl, the plaintiff, he, the defendant, furnished a better grade of lumber than he was obliged to under the written contract, Cohlhepp, the defendant, could not recover a greater price than $12.00 per thousand from the plaintiff for the lumber furnished under the evidence in this case. Answer: Affirmed. [4]
    3. There is not sufficient evidence in the case by which the jury can allow Peter Cohlhepp, the defendant, more than $12.00 per thousand for all the lumber furnished by him to George Zacherl, the plaintiff. Answer: Affirmed. [5]
    4. The verdict of the jury must be for the plaintiff for the amount of the judgment and interest, less the number of feet of lumber furnished the plaintiff at $12.00 per thousand, the payments of lumber to be credited as per the dates of its delivery. Answer: Affirmed. [6]
    Defendant presented these points:
    2. If the jury then found that the use plaintiff notified the defendant that he would not take lumber of the class and quality specified in the original agreement, but that he wanted other and better lumber of the lengths of twelve and sixteen feet, and they found that this lumber was of more and greater value than the lumber specified in the original agreement, and that the defendant delivered to plaintiff lumber of the class and quality desired by him and that no price was agreed upon or mentioned by the parties, then the price at which the jury is to compute the value of the lumber so furnished is to be fixed by the current market price of the same or similar lumber in that community, such price to be determined by the evidence in the case. Answer: Refused. [7]
    3. If the jury find from* the evidence that George Zacherl, the use plaintiff, advanced $800 to Peter Cohlhepp to pay off the judgment on which the sci. fa. in this case was issued, in consideration of the promise and agreement of the defendant to furnish lumber at the price or rate of $12.00 per thousand, and they further find that the judgment bond and judgment entered thereon were held by the use plaintiff in the nature of collateral security or bond of indemnity to secure the delivery of the lumber aforesaid, then the plaintiff would not be entitled to interest on said judgment. Answer: Refused. [8]
    . 4. If the jury find from the evidence that the lumber was to be delivered in one year from the date of the agreement, and they further find that it was not so delivered, but delivered at other and later periods, the plaintiff might recoup any damages sustained by him by such detention by proof of the damages sustained and recovery thereof in this action. In the absence of such proof the same cannot be taken into account by the jury. Answer: Refused. [9]
    Time is not of the essence of the contract and might be waived by the plaintiff. Answer: Refused. [10]

      Errors assigned were (1-10) above instructions, quoting them.

      Geo. F. Whitmer, with him J. S. Shirley, ■ for appellant,
    cited: Lehigh Coal, etc., Co. v. Harlan, 27 Pa. 429; Marshall Foundry, etc., Co. v. Traction Co., 138 Pa. 266; Kircher v. Sprenger, 4 Pa. Superior Ct. 38.

      A. A. Geary, with him H. E. Rugh and Don. C. Corbett, for appellee,
    cited: McGrann v. North Lebanon R. R. Co., 29 Pa. 82.
    October 12, 1908:
   Opinion by

Beaver, J.,

That there was a written agreement, providing for the payment of the judgment sought to be revived upon a scire facias in this case, is not questioned. The parties agree-as to the fact and as to the price to be paid for the lumber to be delivered, in accordance with the written contract. According to the testimony of the use plaintiff, the quality of the lumber was fixed at No. 1 lumber, the kind or variety as pine lumber and the price as 812.00 per thousand delivered at the plaintiff’s yard at Jim-town.

In regard to the written agreement, the defendant testified: “So, they made an article, but I never see the article any more, but I mind these words that was said and which was to be put in the article; that he said ‘that I bought $800 worth of lumber from Mr. Cohlhepp and I paid it in advance,’ and then he says, Mr. Geary asked him, ‘How about the lumber, what kind of lumber, what lengths, and so on?’ ‘Well,’ he says, ‘we can make that very easy, I’ll take fair planing mill lumber.’ He says ‘I’ll take long and short,’ he says, ‘if it’s fair planing mill lumber.’ Q. Did he say anything about log run at that time? A. Well, of course, he said he would take it as the logs would make it. Q. As you cut them in the woods? A. Yes, sir. Q. What price was agreed on? A. $12.00 a thousand feet in his yard. Q. Where? A. Jimtown.”

It will be observed that the defendant testified as to what the use plaintiff said before the writing and not as to what was contained in the writing. The one point upon which the parties agree was that the price was fixed and stated at $12.00 per thousand. There is no allegation, and no testimony to show, that this price was ever changed by mutual agreement. The allegation of the defendant is that the use plaintiff refused to receive short lengths and insisted upon twelve and sixteen-foot boards to be delivered; that he, the defendant, complied with the plaintiff’s request, not upon any agreement, express or implied, to pay more, but, as he states it in his testimony, in answer to the question: “Then you didn’t deliver it to him log run? A. I delivered him the lumber that I had contracted for. I had to keep peace.” It is clear from the entire testimony that the defendant regarded the price as fixed, and so regarded it after the scire facias had issued. Having delivered a load of lumber after the service of the scire facias, it, according to the calculation, at $12.00 per thousand, completed the delivery of the amount provided for in the contract, as calculated by him.

In view of the agreement between the parties as to the price to be paid for the lumber and the fact that no other agreement was subsequently made as to price, we think the court was correct in charging that “ Under the pleadings in the case, the evidence offered in support thereof, and the answers to the points submitted by the respective parties, the dispute in the case has narrowed itself down to a difference between the parties in their respective measurements of the lumber and of the dates on which it should be credited.”

The first assignment of error misquotes the charge of the court, as above cited, in putting “of the size of which it should be cut” instead of “of the dates on which it should be credited.” For this reason this assignment of error should be disregarded, but we have quoted it as contained in the charge, in order to emphasize the difference between the charge and the assignment, as well as to call attention to our rule XV in regard to the assignment totidem verbis.

The points presented by the plaintiff, four in number, are based upon the right of the defendant in no event to have credit for more than $12.00 per thousand, which was the conceded contract price. These were all affirmed by the court below, and, in view of what has been said in regard to the testimony which fails to show any modification of the contract, we think they were properly affirmed. For the same reason, the defendant’s second and sixth points, in which the court was asked to say to the jury that a greater credit than $12.00 per thousand could be allowed under certain conditions, were properly refused.

The action here was a scire facias upon a bond which by its terms bore interest. The plaintiff was undoubtedly entitled to such interest until the dates of payment. The payments were made by delivery of lumber under the written contract and credits were to be allowed as of the several times of delivery respectively. We think, therefore, the court was correct in refusing the defendant’s third, fourth and fifth points, as assigned for error in the 8th, 9th and 10th assignments.

We think the case was fairly, and it was certainly most laboriously, tried, and finding no error in the charge of the court or the answers to the points of the plaintiff and defendant respectively, the assignments of error are all overruled.

Judgment affirmed.


author: Porter, J.,

text:
    Cooper, Appellant, v. Cooper.

      Divorce — Presumption—Voluntary separation — Desertion.
    A divorce will not be granted to a husband for desertion by his wife, where there is no evidence as to whether his wife went voluntarily, was expelled by her husband, or left in pursuance of a mutual agreement, while there is evidence that the husband within a few days after the departure of his wife leased his house to a tenant, left the state, and never made any attempt to communicate with his wife, or to give her any intimation as to where he had located. In such a case the law will presume that the parties separated by mutual consent.

      Separation by mutual consent is not willful and malicious desertion, and is no ground for divorce in Pennsylvania.
    Argued May 6, 1908.
    Appeal, No. 229, April T., 1908,. by plaintiff, from decree of C. P. No. 3, Allegheny Co., April T., 1907, No. 448, refusing divorce in case of Pierson H. Cooper v. Nancy E. Cooper.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Libel for divorce on ground of desertion. Before Kennedy, P. J.
    In the court below Alfred Kerr, Esq., master, reported in favor of allowing a divorce. The court, however, in an opinion by Kennedy, P. J., refused the decree, filing an opinion in which he held that the court had no jurisdiction because the alleged desertion took place in the state of New Jersey, and the respondent had never become a resident of Pennsylvania.

      Error assigned was decree refusing the divorce.

      F. W. Miller, of Robb & Miller, for appellant.
    No appearance nor printed brief for appellee.
    October 12, 1908:
   Opinion by

Porter, J.,

The libelant seeks a divorce from his wife, who-is a resident and always has been of the state of New Jersey, upon the ground of “willful and malicious desertion and absence from the habitation of the libelant, without a reasonable cause, for and during the term and space of two years.” The learned judge of the court below entered a decree refusing the divorce and dismissing the libel, and the libelant appeals. We have carefully considered the testimony and. are not satisfied that the decree of the court below was erroneous. The libelant called but two witnesses, and assuming the testimony to be true, in so far as it is not manifestly mere hearsay, the following were the only .material facts established: The appellant and his wife were married in Sussex county, state of New Jersey, on June 16, 1886, and were from that date until' February, 1903, citizens of and domiciled in the state of New Jersey, living together as man and wife. Early in February, 1903, the exact date not given, one of the witnesses, an employee of libelant, went with the libelant to the home of the latter and entered the house at the rear door, which was not locked; the other outside doors of the house were locked, as were also the inside doors, except that of one bedroom, and the wife of libelant was not about the house. The wife was seen about the house a few times after that, and a few days later on, February 8, 1903, she came there with her brother-in-law, packed up the household goods and furniture, placed the things on a wagon which hauled them away, and she and her brother-in-law then drove away in a buggy. Some of the articles of furniture were subsequently seen at the house of this brother-in-law, in Sparta, Sussex county, New Jersey, where the respondent was living with .her sister, the wife of the brother-in-law referred to in the testimony. The husband, this appellant, within a few days after his wife had thus gone to live with her sister, rented his dwellinghouse to a tenant, closed out his business and came to Pittsburg, where he has since lived. The other witness corroborated this testimony in part, and no evidence was produced tending to establish any other fact material to this case.

There was no evidence as to how long the respondent had been absent from the house at the time the libelant and his business employee went to his home on the day first referred to. There was no evidence as to the circumstances under which she first left the house, nor as to what occurred at that time or immediately prior thereto. There was no evidence as to whether she went voluntarily, was expelled by her husband, or in pursuance of a mutual agreement. The fact that they lived apart would establish that there had been a separation. Is willful and malicious desertion a natural and necessary inference from such a state of facts? “The terms imply free election, to live with or not live with the party deserted, and determined upon against the marital obligation, impelled thereto by willfulness and malice. The choice must be free, excepting so far as it' may be controlled by these evil impulses: ” Bishop v. Bishop, 30 Pa. 412. The terms of the statute also imply that the party charged with willful and malicious desertion shall have two years within which to repent, and during that time a reasonable opportunity to resume marital relations: before a divorce upon this ground shall be decreed. The husband in this case, within a few days after his wife had gone to the house of her sister, leased to a tenant what had been their common home and himself left the state which had been their domicile. There is no evidence that he ever made any attempt to communicate with his wife, or which would sustain an inference that she knew of his whereabouts. How could she return to him, when she did not know where he was? There is in the case no evidence of a declaration by the respondent that she did not wish to live with her husband or would not return to him at any time that he so desired. The libelant has all this time known where his wife was, but he has given to her no intimation as to where he has been located. The fair inference to be drawn from the facts established by the evidence, extending to the parties the legal presumption of innocence and honesty, until the contrary is made to appear, is that the parties separated by mutual consent. Separation is not willful and malicious desertion, and the appellant is not, under the law of Pennsylvania, entitled to a divorce: Ingersoll v. Ingersoll, 49 Pa. 249; Musgrave v. Musgrave, 185 Pa. 260; Middleton v. Middleton, 187 Pa. 612; Hull v. Hull, 14 Pa. Superior Ct. 520.

Whether the statutes of Pennsylvania, not omitting the Act of April 28, 1903, P. L. 326, empower the courts to decree a divorce for a cause occurring in another state where the parties were then domiciled, and one of the parties leaves the common domicile and coming into Pennsylvania resides here one year, but the other party remains in what was formerly the domicile of both, never comes into Pennsylvania and is not served with process and does not appear in the proceeding, is a question which can be determined when a case presents sufficient evidence as to the cause for a divorce. The very interesting brief submitted by the learned counsel for the appellant, upon the question above stated, affords convincing evidence of his ability and industry, but it is not necessary to consider that question in this case. The evidence would not have been sufficient to justify a divorce even if the parties had been domiciled in Pennsylvania and the alleged cause had here occurred.

The decree is affirmed and the appeal dismissed at cost of the appellant.


text:
    Big Beaver Creek Corporation v. Beaver County, Appellant.

      Bridges — Condemnation—Unattached lumber — Damages—Evidence.
    A county which has condemned and taken over a bridge from a bridge company is not entitled to unfinished lumber owned by the company and stored near the bridge, although such lumber is suitable to be cut up for bridge purposes, if it appears that no evidence concerning the lumber was submitted to the jury of view, and that the lumber had never become a part of the bridge, nor was necessary for the proper operation thereof.
    Argued May 11, 1908.
    Appeal, No. 18, April T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 331, on verdict for plaintiff in case of The President, Managers. and Company for Erecting a Bridge over Big Beaver Creek, at or near Wolf Lane, in the County of Beaver, a Corporation v. Beaver County.
    Before Rige, P. J., Porter, Henderson, Morrison, Oready, Head and Beaver, JJ.
    Affirmed
    Assumpsit for the value of lumber. Before Holt, P. J.
    The opinion of the Superior Court states the facts of the case.
    The court gave binding instructions for plaintiff. Verdict and judgment for plaintiff for ,1502.51. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Henry H. Wilson, for appellant.
    Lumber and spikes kept by a bridge company for purposes of repair are fixtures and pass with the realty: Covey for use v. P., Ft. W. & C. R. R. Co., 3 Phila. 173; Montgomery County v. Bridge Co., 110 Pa. 54; Williams’ App., 1 Monaghan, 274.
    Constituent parts of a plant, in duplicate and never attached to the realty, but held only for purposes of repair or possible need, are fixtures and pass with the realty: Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, 2 W. & S. 390; Christian v. Dripps, 28 Pa. 271; Hill v. Sewald, 53 Pa. 271; Seeger v. Pettit, 77 Pa. 437, Williams’ Appeal, 1 Monaghan, 274; Vail v. Weaver, 132 Pa. 363; Wick v. Bredin, 189 Pa. 83.

      Forest 0. Moorehead, with him John M. Buchanan, James L. Hogan and Edwin S. Weyand, for appellee.
    Actual annexation is necessary before a chattel can be turned into realty: Capen v. Peckham, 35 Conn. 88; Williamson v. R. R. Co., 29 N. J. Eq. 311; Voorhis v. Freeman, 2 W. & S. 116; Pyle v. Pennock, 2 W. & S. 390; Wright v. Pyne, 17 Legal Int. 364; Cook v. Whiting, 16 Ill. 480; Hinkle v. Hinkle, 69 Ind. 134; Woodman v. Pease, 17 N. H. 282; Beard v. Duralde, 23 La. Ann. 284; Maxwell v. Willard, 1 W. N. C. 355; Peck v. Batchelder, 40 Vt. 233; Blue v. Gunn, 87 S. W. Repr. 408.
    October 15, 1908:
   Opinion by

Porter, J.,

The county of Beaver instituted legal proceedings to condemn the bridge of the plaintiff company, and took possession of the bridge in July, 1904. There was an appeal from the report of the board of viewers to value the bridge and the jury trial upon that appeal was had in June, 1905, judgment being entered upon the verdict against the county in the following month. The plaintiff company owned about 20,000 feet of oak . lumber, a part of which was piled in a private alley not far from one end of the bridge and the remainder was piled upon the approach to the other end of the bridge, at the time the county took possession of the bridge. The plaintiff company claimed this lumber and demanded the lumber or payment therefor; the representatives of the county caused the lumber to be measured and the value of it was agreed upon, the county commissioners agreeing to pay that price, if they were legally liable. The plaintiff company brought this action, and after trial the learned judge of the court below instructed the jury that the plaintiff was entitled to recover, and the county appeals.

The contention of the county is that the lumber in question was a part of the bridge, and under the condemnation proceedings passed as such. The evidence disclosed that the lumber was in an unfinished condition, but of a character suitable for being cut into lengths and used for joists or planking upon the bridge. No part of the lumber had in any way been attached to or used in connection with the bridge. There was no evidence tending to establish that the plaintiff company had claimed or the defendant county had conceded, before the board of viewers or the jury which upon the appeal fixed the value of the bridge, that this lumber should be taken into consideration in determining what the bridge was worth. There was nothing in the evidence which would have warranted a finding that any testimony with regard to this lumber had been submitted to the board of viewers or the jury which passed upon the value of the bridge in the condemnation proceedings. There was not in the present proceeding any testimony as to the character or length of the bridge, nor was there any evidence which would have warranted a finding that it was necessary for the bridge company to have this quantity of lumber on hand in order to keep the bridge in proper repair. The defendant relied solely upon the facts that the bridge had been condemned and had become the property of the county; that the lumber had been owned by the bridge company and that it was stored in the vicinity of the bridge.

Chief Justice Gibson said, in Voorhis v. Freeman, 2 W. & S. 119: “Whether fast or loose, therefore, all the machinery of a manufactory which is necessary to constitute it, and without which it would not be a manufactory at all, must pass for a part of the freehold. This is no more than an enlargement of the principle of constructive attachment. ,. . . On the principle, then, that a thing temporarily severed from the freehold does not cease to belong to it, the whole set must be considered a part of the mill.” The property in question in that case was a lot of rolls for a rolling mill, adapted to the manufacture of bars of different shapes and sizes; when one size of iron was being rolled, the rolls for other sizes were taken out and the proper rolls placed in position. It was held that the entire set of rolls were a part of the mill, even those temporarily detached from the realty. It is to be observed that all the rolls had, in that case, been at some time attached to and used as a part of the machinery of the mill. The same principle was recognized in Pyle v. Pennock, 2 W. & S. 390; Christian v. Dripps, 28 Pa. 271, and Hill v. Sewald, 53 Pa. 271. Even where there has been a physical annexation of a chattel to the land, it will not become a part of the realty when such was not the intention of the parties: Seeger v. Pettit, 77 Pa. 437; Vail v. Weaver, 132 Pa. 363; Wick v. Bredin, 189 Pa. 83.

The learned counsel representing the appellant contends that the question whether personal property has become a part of a building or other structure depends not upon whether it has ever been in any manner attached to the building or structure, but that it is wholly dependent upon the intention of the parties. When the property in question has at sometime and in some manner been attached to or used in connection with the house, factory or other structure, the intention of the parties in so attaching or using it, or in detaching it, is very often a controlling element in determining the question. The mere intention to attach, at some time in the future, raw materials, which have not been especially prepared, to a building or structure, to which they have never been attached and in connection with which they never have been used, is an entirely different matter. The intention with which something has been done is to be considered, but when nothing has been done, the unexecuted intentions of the parties can have no weight, in determining whether a chattel has become real estate: Johnson v. Mehaffey, 43 Pa. 308; Wright v. Pyne, 17 Legal Intelligencer, 364; Maxwell v. Willard, 1 W. N. C. 355. The lumber involved in this case may have been convenient for the bridge company to have on hand, in order that they might cut it into lengths required to make repairs, from time to time, or they may have bought the lumber when they had no present use for it, simply because they had an opportunity to buy at a bargain a thing which they might have.use for in the future. The bridge company might, so far as the evidence in this case discloses, have sold the lumber at any time, without incurring any risk of permitting the capacity or safety of the bridge to become impaired. The evidence would not have warranted a finding that the lumber had become a part of the bridge or was necessary for the proper operation thereof.

The judgment is affirmed.


author: Head, J.,

text:
    Commonwealth v. Ashley Borough, Appellant.

      Nuisance — Waters—Pollution of stream — Contamination of air— Boroughs.

    On the trial of an indictment against a borough for polluting a stream by depositing therein excreta and other filth detrimental to the health of the good citizens, the commonwealth may show that by reason of the deposit of such filth the waters emitted foul and noxious odors destructive of the comfort and dangerous to the health of the people generally residing in the vicinity. Under such an indictment pollution both of water and air may be shown.
    A municipality may be convicted of polluting the waters of a stream by depositing therein excreta and other filth, although at the trial no evidence is offered by the commonwealth showing use by any lower riparian owner, of the water of the stream for “drinking or domestic purposes.”
    Argued March 3, 1908.
    Appeal, No. 28, Jan. T., 1908, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1904, No. 712, upon verdict of guilty in case of Commonwealth v. Ashley Borough.
    Before Rice, P. J., Porter, Henderson, Head and Beaver, JJ.
    Affirmed.
    Indictment for nuisance. Before Lynch, P. J.
    At the trial Dr. J. B. Tobias, a witness for .the commonwealth, was asked this question:
    “ Q. In what condition did you find the stream? A. I found the stream full of paper and mud and a very foul odor coming from it.”
    Defendant’s counsel object and ask that the answer be stricken out.
    The Court: He may testify to that. “Q. Tell what you found there? ”
    Objected to, objection overruled, question allowed, exception noted and bill sealed for defendant. [1]

      “ A. I found a bad odor from the stream. I found the stream containing a good many waste papers, and the water was cloudy, dark colored and a bad odor; could be observed from the banks of the stream.”
    Mr. Welles, sworn for defendant.
    Defendant proposes to prove by the witness on the stand, the borough engineer, that the day before yesterday he made a survey of the stream called Solomon’s creek and its tributaries, and found below the point where the Ashley sewer enters, a slaughter house sending fleshings, blood and other filth into the stream; and below that he found a stream which passes through the city of Wilkes-Barre from beyond Empire colliery and down through the Fourteenth ward and the Thirteenth ward, entering into the stream, which also contained all kinds of filth, waste water and excreta, and below that he found a fifteen-inch sewer of the city of Wilkes-Barre entering the stream, and below that and before it reaches the point where this complaint starts, other nuisances.
    Commonwealth objects to the evidence offered because the alleged nuisance complained of here was that which existed on September 9, 1904, and previous thereto, and any evidence as to the condition of the stream or sewers along the stream, or nuisances now existing, would not be relevant, it being subsequent to the time of the indictment. Objection sustained. [2]
    The court charged in part as follows:
    [It is said the sewage from this town of about 4,500 inhabitants is emptied into Solomon’s creek. The witnesses upon the part of the commonwealth testify that especially in low water, the offensive odor and noxious air that arise from this stream is not only a discomfort, but a positive menace to the health of the people. If you believe this evidence, there can be no question about the guilt of this municipality.] [3]
    [It is conceded this stream was polluted, that it was made foul, in part, at least, by the sewer of this municipality. Witnesses upon the part of the commonwealth have testified that people’s health and comfort are seriously affected by reason' of this pollution.] [4]
    Verdict of guilty, upon which judgment of sentence was passed.

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

      John M. Oarman, with him Charles E. Keck, for appellant.—
    Precision in the description of the offense is of the last importance to the innocent; for it is that which marks the limits of the accusation, and fixes the proof of it: Hartmann v. Com., 5 Pa. 60.
    As the indictment did not contain an intimation of any other nuisance than pollution of the waters, the defendant could not imagine that she could be tried for a different matter: Com. v. Yost, 197 Pa. 171; Lord v. Water Co., 135 Pa. 122; Phila. & R. R. R. Co. v. Water Co., 182 Pa. 418.

      Abram Salsburg, district attorney, with him John H. Dando, and C. F. McHugh, for appellee.
    A municipality in pursuing a public work is not privileged to commit a nuisance, and if it does it is liable to a private individual in damages, or to prosecution at the instance of the state where the nuisance is public. A municipal corporation has no more power to injure private property, or to create a nuisance thereon, than a natural person: Mayor, etc., of Knoxville v. Klasing, 76 S. W. Repr. 814; Reading Iron Works v. Borough of South Chester, 2 Del. County Rep. 455; State of Maine v. Portland, 74 Me. 268; Com. v. Keenan, 67 Pa. 203; Election Cases, 65 Pa. 20.
    Notwithstanding this liberality of pleading the rule undoubtedly is, that an indictment must show that an offense has been committed, and, if at common law, must describe the same “so plainly that the nature of the offense charged may be easily understood by the jury.” This is the test'by which the sufficiency of the indictment is to be determined: Williams v. Commonwealth, 91 Pa. 493, 502; Commonwealth v. Swallow, 8 Pa. Superior Ct. 539, 614; Commonwealth v. McCoy, 10 Pa. Superior Ct. 598.
    The pollution of a stream affecting the public is a crime: Watson v. New Milford, 72 Conn. 561 (45 Atl. Repr. 167); Commonwealth v. Yost, 197 Pa. 171.
    October 12, 1908:
   Opinion by

Head, J.,

The defendant, the borough of Ashley, was convicted- in the court below of maintaining a common and public nuisance. The bill of indictment charged that the defendant “unlawfully'did erect, maintain, etc., a certain sewer for-the purpose of carrying the waste water, excreta and other filth from the said borough into Solomon’s creek whereby said creek becomes polluted and thereby detrimental to the health of the good citizens, etc., who cannot thereabout reside without great inconvenience, danger, injury and annoyance, to the great and common nuisance, etc.” The defendant made no motion to quash nor request for a bill of particulars, but went to trial on the plea of not guilty. The pollution of the stream in the manner charged was fully proven and indeed was not denied. The commonwealth further proved that by reason of these deposits of filth in the stream, its waters emitted foul and noxious odors which were not only destructive of the comfort but also dangerous to the health of the people generally residing in that vicinity. The defendant objected-to the admission of such testimony and, in the first of the two questions presented for our consideration, attacks the rulings of the court permitting it, because the indictment charges the pollution of water and not of the air, and hence, argues the defendant, it came prepared to show that nobody could be injured by the defilement of the water as nobody used the-water, and was surprised and taken at a disadvantage by the line of evidence admitted over its objections. We do not find the argument convincing.

In Com. v. B. & O. R. R. Co., 35 Pa. Superior Ct. 474, we endeavored to set forth, at some little length, the reasons why the great precision and nicety that characterized the work of the criminal pleader in early days were no longer required. We need not repeat those reasons here. The. act of the defendant intended to be complained of was the befoulment of the stream by the deposit of filth therein and the commission of this act was plainly charged. The bill further averred that the defilement of the stream converted its waters into a menace to the comfort and health of the citizens and thus the act became a public nuisance.

The presence, in a community of human beings, of a body of water which has been caused or permitted to become filthy, is everywhere recognized as a source of danger to health and life. Whilst there may be many avenues along which the people may be brought into contact with such danger, there is none more familiar than the poisonous vapors which, under the operation of nature’s laws, are constantly emitted by such waters. We do not think it was necessary that the bill should recount in detail the various ways in which the public became injuriously affected by the act charged. If the defendant could have shown any reasonable grounds for the apprehension that, owing to the general character of the averments in the bill, its defense could not be prepared without the undue labor and expense of providing against possible lines of attack that might never be made, a request for a bill of particulars would have brought all the relief necessary.

We must therefore answer the first of the two “ questions involved ” in the affirmative and the several assignments of error on this branch of the case are overruled.

The remaining question presented to us is thus stated in the printed brief: “Can a municipality be convicted for polluting the waters of a stream where, at the trial, no evidence is offered by the commonwealth showing use, by any lower riparian owner, of the water of the stream for ‘drinking or domestic purposes ’?” To answer this question in the negative, as we are urged to do, would require us to hold that the wrong to be redressed or punished by such a conviction was confined, (a) to the injuries suffered by lower riparian owners exclusively; and (b) only by such persons in that class as were proven, at the trial to have used the water for “ drinking or domestic purposes,” We know of neither principle nor authority on which such conclusions could rest.

It is doubtless true that where the waters of a stream have been polluted by a wrongful act, a lower riparian owner may share, in common with others who are not such owners, in some of the injurious consequences of the unlawful contamination. To that extent he suffers, not because he happens to be a riparian owner, but because he is a citizen, a unit in a community, with the right to demand that the health and comfort of that community shall not be threatened or impaired by the unauthorized act of any other person, natural or artificial. But he may, he often does, following such an unlawful act, suffer injuries which do not affect the people at large; which come to him because he is a riparian owner with the rights attached by the law to such ownership. Such injuries, however, are to be remedied or compensated by special action. Logically they should furnish no ground for a public prosecution.

Again, a pond or lake may exist in the heart of a populous community, the waters of which may come from their natural source at such a temperature, or so impregnated with mineral or alkaline deposits, as to be wholly unfit for “drinking or domestic purposes; ” yet they may be entirely harmless. If a person should set up a contrivance by which there was poured, into such a body of water, a constant stream of filth, whereby that, which before was in no wise harmful, became a breeding place for poisonous germs that, borne by the winds, might carry pestilence and death to the homes of the people, can it be argued that such person could not be convicted of maintaining a most dangerous nuisance? Or could he successfully assert that the prosecution had failed because there was no proof that any one had ever used the water for “drinking or domestic purposes”?

The case of Com. v. Yost, 197 Pa. 171, furnishes no authority for the position here assumed by the appellant. In that case Yost was indicted for maintaining a public nuisance because he permitted the contents of a privy vault to drain into the small tributary of a larger stream, upon which, at a point about thirteen miles below, the York Water Company had erected a pumping station. There the company took the water from its natural channel, transported it to the city of York and sold it to the citizens. It was not shown that the company had ever acquired any right to thus divert the water. It .was neither air ■leged nor proven that the water had become so far contaminated as to in any way affect the comfort or imperil the safety of any, save those who might use it for drinking or domestic purposes. As the case was tried no right whatever, natural or acquired, was shown to exist in the citizens of York or in the public generally, to take the water from the stream and make such use of it. Had such right existed the court plainly declares the act of Yost would have been an invasion of that public right and thus indictable. But as it was, the only rights assailed by the alleged contamination were the private, rights of the water company or other riparian owners and, as a consequence, no ground existed for an indictment, which must rest upon the commission of a public wrong. The doctrine of the case, we think, is fairly declared in the following language of Mr. Justice Brown, viz.: “If the public have a right to receive pure water through the agency of a corporation legally authqrized to take it from a stream, he who pollutes it offends against the -public. If, on the other hand, the waters of a stream, in which riparian owners alone have an interest, be polluted, the wrong or injury is a private one, for which the individual or individuals injured may have redress.” The entire opinion, as we read it, strongly points to the conclusion that, under- the facts established in this record, a conviction for maintaining a public nuisance ought to be sustained.

We must therefore hold that the indictment sufficiently charged the offense; that upon the trial it was proper for the commonwealth to show, by testimony, the character and extent of the pollution and the manner in which its citizens were affected by the continued existence of such a contaminated stream in their midst; and that' in the acts of which the defendant has been convicted, there can be found every essential element of a public nuisance.

As suggested by the learned counsel for the appellant, the disposition of the two questions already considered, makes it unnecessary to take up in detail the several assignments of error which bring upon the record the matters out of which the questions arise.

The assignments of error are all overruled, the judgment is affirmed and the record is remitted to the court below that the sentence may be carried into execution.


author: Morrison, J.,

text:
    Seitz v. Scottish Union & National Insurance Company, Appellant.

      Insurance — Fire insurance — Sole ownership clause — Agent—Waiver.
    Where a person takes a policy of fire insurance with the usual “sole ownership ” clause in it, he is bound to know that his policy is written on the theory that he owns the land in fee simple, and if he takes the policy knowing that he only has a lease of the property, he cannot recover in case of loss, unless the company has waived the provision as to ownership.
    While an agent of the company who knows that the insured is not the sole owner, may possibly bind the company by waiver by writing a policy with such knowledge, such is not the case as to an insurance, broker who acts as the agent for the insured in placing the policy.
    Argued April 30, 1908.
    Appeal, No. 10, April T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., July Term, 1904, No. 842, on verdict for plaintiff in case of C. A. Seitz v. Scottish Union & National Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit on a policy- of fire insurance. Before Frazer, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $927.73. Defendant appealed.

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

      W. K. Jennings, with him D. C. Jennings, for appellant.—
    There was not sufficient evidence of Walter’s agency: Whiting v. Lake, 91 Pa. 349; Freedman v. Ins. Co., 182 Pa. 64; Pottsville Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137; Bateman v. Ins. Co., 189 Pa. 465; Scott v. Sun Fire Office, 133 Pa. 322.
    The burden of proof was upon the plaintiff to establish the agency of Walters and the extent of it: American Life Ins. & Trust Co. v. Shultz, 82 Pa. 46; Hays v. Lynn, 7 Watts, 524.

      John P. Hunter, of Lyon, Hunter & Burke, for appellee,
    cited: Philadelphia Tool Co. v. Assur. Co., 132 Pa. 236; Pipe Lines v. Ins. Co., 145 Pa. 346.
    October 12, 1908:
   Opinion by

Morrison, J.,

There is not sufficient evidence that W. M. Walters was more than an insurance broker, and, therefore, it will not do to assume, as the court below did, that he represented the defendant company, and that the latter was visited with notice that the insured building stood on leased ground, because there was some evidence that Walters knew this fact. So far as the facts were developed the burden clearly rested on the plaintiff to prove that Walters was an agent of the defendant company, and not merely an insurance broker, agent only of the plaintiff: Am. Life Ins. & Trust Co. v. Shultz, 82 Pa. 46. This burden was not met by the plaintiff and there is not sufficient evidence in the record to sustain a finding that Walters was an agent of the defendant company. As the case went to the jury, Walters ought to have been assumed to be only the agent of the plaintiff: Whiting & Co. v. Lake, 91 Pa. 349; Central Penna. Tel. & Supply Co. v. Thompson, 112 Pa. 118; Freedman v. Ins. Co., 182 Pa. 64; Pottsville Mutual Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137.

In addition to his failure to prove the agency of Walters, the plaintiff objected to the defendant’s offer (first, second and third assignments), to prove by two witnesses the relation, if any, that Walters bore to the defendant company, and that he was not'its agent. The court sustained this objection and excluded the evidence. We think there was error in not admitting the testimony of W. D. Strobel and Miss Ruth W. Davis, the witnesses offered by the defendant. Judging from the offers, their testimony would have been competent and material.

The learned court appears to have been controlled, as stated in the charge and opinion, by Phila. Tool Co. v. British Am. Assurance Co., 132 Pa. 236. But that case is exceptional and it rests on different ground' than the one in'hand, (a) In it the recovery was only for the value of the machinery of strictly personal property as distinguished from the brick building standing on leased land. This clearly appears in the record of the case', (b) That case also rests on the fact that the insurance was taken by an agent or representative of the defendant company, without a written application, and the Supreme Court assumed that the company, through its representative, knew just what it was insuring. Not so in the present case, for we have no competent evidence that the person who procured the insurance for the plaintiff had any authority to bind the company, or make any waivers, and we must look to the policy that he procured from the company to ascertain the rights of the plaintiff and defendant thereunder. The policy contained the following: “This entire policy, unless otherwise provided by agreement indorsed hereon or. added hereto, shall be void if ... . the interest of the insured be other than unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple.” That the subject of insurance was a building on ground not owned by the insured in fee simple and there was no agreement indorsed on the policy or added thereto waiving the above clause in the policy, is a conceded fact.

We have carefully considered the arguments of the respective counsel and the cited authorities and many others; also the record and testimony, and' we can discover no material difference between the case in hand and Beddall v. Citizens’ Ins. Co., 28 Pa. Superior Ct. 600, except that in the latter case the Insured dealt with an agent of the company, while in the former that fact is not shown, and this militates'against the present plaintiff.

.We are not convinced that we should recede from the ground taken in the Beddall case, and its doctrine, and the cases therein cited, require us to sustain the fourth assignment of error and reverse the judgment without a venire, even if the learned court had not erred as raised in the first, second and third assignments. The Beddall case was decided on the ground that the insured was bound to know that his policy was written on the theory that he owned the land in fee simple, while in fact he knew that he only had a lease of it, and a waiver of this was necessary to be written on or added to the policy. The Beddall case rules the present one and it is unnecessary to restate our reasons which sufficiently appear therein.

• The learned court erred in refusing the defendant’s first point (fourth assignment): “Under all the evidence the verdict should be in favor of the defendant company.”

We sustain the first, second, third and fourth assignments of error and reverse the judgment, and now grant judgment in favor of the defendant.


text:
    Windows v. Rudolph, Appellant.

      Pleading — Statement—Trespass for deceit — Scienter—Trial on merits.

    Where in an action of trespass for deceit, the statement of claim fails ■ to aver a scienter, and the defendant does not demur, but enters a plea of not guilty, and goes to trial on the merits, and the scienter is then proved although not pleaded, the defendant after a verdict and judgment against him, cannot thereafter object to the insufficiency of the statement.
    After a trial on the merits, no defect of pleading which might have been raised by a demurrer will be fatal to the judgment, unless it is shown to have injuriously affected the trial.

      Argued May 4, 1908.
    Appeal, No. 186, April T., 1908, by defendant, from judgment of C. P. Jefferson Co., April T., 1906, No. 327, on verdict for plaintiff in case of M. Windows v. E. C. Rudolph.
    Before Rice, P. J., Porter,, Henderson, Morrison. Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass for deceit. Before Ormerod, P. J., specially presiding.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $162. Defendant appealed.

      Error assigned was in not entering judgment for plaintiff non obstante veredicto.

      A. L. Cole, for appellant.
    In an action of deceit the scienter must not only be alleged, but proved, and the jury must be satisfied that the defendant made the statement relied upon, knowing it to be false, or with such conscious ignorance of the truth as to make it equivalent to a falsehood: Griswold v. Gebbie, 126 Pa. 353; Scott v. Heisner, 33 Pa. Superior Ct. 286; Iron Works v. Barber, 102 Pa. 156; s. c., 106 Pa. 125.

      A. J. Truitt, for appellee,
    cited: Erie City Iron Works v. Barber, 118 Pa. 6; Schriver v. Eckenrode, 87 Pa. 213.
    October 12, 1908:
   Opinion by

Porter, J.,

The only specification of error pressed at the argument of this case, related to the defect in the statement by'plaintiff' of his cause of action. The action is in trespass for deceit. The statement was very negligently and unskillfully drawn, in that it failed to aver a scienter, and it would have been held bad on demurrer: Erie City Iron Works v. Barber, 102 Pa. 156; Griswold v. Gebbie, 126 Pa. 353; Scott v. Heisner, 33 Pa. Superior Ct. 286. The statement did, however, substantially aver that the defendant represented that he was the agent of the commissioners of the county of Jefferson, authorized to employ the plaintiff to perform certain services at a fixed compensation; that said representation was false; that the plaintiff was deceived thereby, and, acting in good faith, performed the services, to his prejudice. The plaintiff upon proof of the facts thus averred, at a trial under a statement which properly averred a scienter, would have been entitled, without further evidence, to go to the jury: Erie City Iron Works v. Barber, 106 Pa. 125; Bigelow on Fraud, 63. The defect in the statement was therefore merely formal. The defendant did not raise the question of the sufficiency of the statement by demurrer, but entered the plea of not guilty and went to trial. Had the question been properly raised at the trial the defect in the statement could have been cured by amendment. There was a trial upon the merits and the court, at the instance of the learned counsel for the defendant, instructed the jury that, in order to sustain the action, the misrepresentation must have been for the purpose of deceiving the plaintiff and was so intended by the defendant; “that he must have known that he was lying to them, and that he lied to them for the sole purpose of deceiving them.” The plaintiff was thus required to prove the scienter although he had failed to allege it. The cáse was properly tried upon the merits. The question arising out of the defect in the statement was not distinctly and specifically raised by any exception taken at the trial, and the case falls within the rule that after a trial on the merits, no defect of pleading which could have been raised by a demurrer will be fatal to the judgment, unless it is shown to have injuriously affected the trial; the proper amendment will, in such case, be considered to have been made: Erie City Iron Works v. Barber, 118 Pa. 6; Eckert v. Schoch, 155 Pa. 530; Commonwealth v. Press Company, Limited, 156 Pa. 516. The specificatiqns of error are dismissed.

The judgment is affirmed.