author: Orlady, J.,

text:
    Blair v. Clark, Appellant.

      Contracts — Sale—Delivery—Payment—Rescission.
    Where a contract of sale provides for the payment of the purchase price on delivery of goods sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods.
    If a sale of lumber is for “ cash on the ground,” and the buyer pays only part of the purchase money, and proceeds to remove the timber, the seller may, without rescinding the contract, notify the purchaser not to remove the remainder of the timber, until the balance of the purchase money has been paid.
    Argued May 4, 1908.
    Appeal, No. 150, April T., 1908, by defendant, from judgment of C. P. Indiana Co., Dec. T., 1906, No. 110, on verdict for plaintiff in case of James S. Blair v. Harry E. Clark.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for balance due on a contract of sale. Before Telford, P. J.
    ' The opinion of the Superior Court states the case.
    Defendant presented the following points:
    1. The plaintiff, having retained possession of the greater part of the lumber and still having it in his possession, cannot recover the contract price. Answer: This point requests us to find a fact from the evidence, and is therefore declined. [1]
    5. If the jury finds that the plaintiff delivered to the defendant all the lumber on the Stuchell tract and before the greater part thereof had been removed by the defendant the plaintiff refused to permit the defendant to remove the same, that was a renunciation by the plaintiff of the contract and gave the defendant the right to treat the contract as broken, and the plaintiff cannot recover. Answer: This point is refused. [2]
    If the jury finds that the plaintiff broke the contract, either by selling lumber which he contracted to deliver to the defendant or by refusing to allow the defendant to remove the larger part of the lumber on the Stuchell tract, the defendant is entitled to recover damages for the actual loss sustained by the defendant. Answer: This point as stated is refused. [3]
    Verdict and judgment for plaintiff for $370.44. Defendant appealed.

      Errors assigned were (1-3) above instructions, quoting them.

      D. B. Taylor and Frank Keener, for appellant.
    The lumber being on Blair’s land and he refusing to permit Clark to remove it, took possession of the lumber and thus rescinded the contract, giving Clark the right to assent to such abandonment of the contract and treat the contract as dissolved: Graves v. White, 87 N. Y. 463, cited in 30 L. R. A. 59; Bowen v. Burk, 13 Pa. 146; Girard v. Taggart, 5 S. & R. 19; Hartman v. Meighan, 171 Pa. 46; Seanor v. McLaughlin, 165 Pa. 150; Scott v. Hough, 151 Pa. 630; Unexcelled Fire-Works Co. v. Polities, 130 Pa. 536; Jones v. Jennings Bros. & Co., 168 Pa. 493; Guillon v. Earnshaw, 169 Pa. 463; Hooper, Seving & Co. v. Carpet Co., 11 Pa. Superior Ct. 634.

      John H. Pierce, with him David Blair, for appellee.
    This being a sale for cash, and the lumber having been delivered, but the consideration not paid, the right of possession was in the defendant, Clark, but the right of property remained with the seller, Blair. The contract was executed, the indicia of ownership being with the buyer, the right of property with the seller: Frech v. Lewis, 218 Pa. 141; Backentoss v. Speicher, 31 Pa. 324; Mackaness v. Long, 85 Pa. 158; Fessler v. Love, 48 Pa. 407.
    July 15, 1908:
   Opinion by

Orlady, J.,

After considerable correspondence and a number of personal interviews, the plaintiff sold to the defendant 101,705 feet of oak boards, at the price of $10.50 per thousand feet. In concluding the contract, as stated by the defendant in his argument, the plaintiff said to him, “You can examine it all you want, as thoroughly as you care to; but remember there is only one way in which you can buy it, and that is according to my inventory, as a basis of the amount of lumber there, and for $10.50 per thousand feet, cash on the ground.” Which proposition was accepted on December 13, 1903, in a letter written by the defendant. On January 14, 1904, the defendant sent his check, by letter, for $750 on account of the purchase, and stated “I will pay the balance of this money when I return from Mexico,” and soon thereafter he began hauling away the boards.

A controversy then arose as to the quality of some of the-lumber and the plaintiff advised an interview on the ground to confirm his statement, that all the lumber was of the quality designated in the inventory which he had furnished to the defendant prior to making the sale. In October of that year the defendant again began to haul lumber, and after having taken away in all, about 35,000 feet, the plaintiff notified him, on October 25, as follows: “I am surprised to learn that you are moving boards from the Stuchell farm before making your last payment of $302.90, which is now about ten months past due. Until this amount is paid I respectfully insist that the hauling be discontinued.” Prior to this time a number of requests had been made for payment, and this suit was brought to recover the balance due on the contract. The trial resulted in a-verdict for the plaintiff for $370.44. The defendant submitted points for charge, as follows: “Second. If the jury finds that the plaintiff delivered to the defendant all the lumber on the Stuchell tract, and before the greater part thereof had been removed by the defendant, the plaintiff refused to permit the defendant to remove the same, that was a renunciation by the plaintiff of the contract, and gave the defendant the right to treat the contract as broken, and the plaintiff cannot recover. Third. If the jury finds that the plaintiff broke the contract, either by selling lumber which he contracted to deliver to the defendant, or by refusing to allow the defendant to remove the larger part of the lumber on the Stuchell tract, the defendant is entitled to recover the actual damages for the actual loss sustained by the defendant.” The second point was refused .by the court below, and the third was refused as stated.

It appears by the undisputed testimony that the defendant made a full examination of the property, by his agents, prior to accepting the proposition to buy, and had been furnished an inventory by the plaintiff. The right of the plaintiff to insist upon the payment of the purchase price before the actual removal of the property has been so recently dealt with in Frech v. Lewis, 218 Pa. 141, that it is not necessary further to analyze the law on that subject. Mr. Justice Stewakt says: “The settled doctrine of our cases is to the effect that where the contract of sale provides for payment of the purchase price on delivery of the articles sold, and the seller delivers the goods but the buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his option reclaim the goods. In some jurisdictions the right of property is held to pass with the delivery, unless at the time the right to retake is expressly declared by the seller. We have not gone so far. Our cases proceed on the theory that until payment has been made, or waiver, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expresssly declared or can fairly be inferred from the circumstances attending. Possession, however, having passed, and the buyer by the act of the seller having been invested with the indicia of ownership, the policy of our law requires that this situation — the possession in one and the right of property in another — shall continue no longer than is necessary to enable the seller to recover the goods with which he has parted. The law gives the seller the right in such case to reclaim his goods, but he must do so promptly, otherwise he will be held to have waived his right, and can only thereafter look to the buyer for the price.”

In Pennsylvania Railroad Company v. American Oil Works, 126 Pa. 485, the court declared: “A vendor of goods has the right to retain them in his own possession until the price has been paid. If he waives this right and sells upon credit, it is an implied condition of such sale that the buyer shall continue in good credit until he comes into, his actual possession. When that happens the lien of the vendor is gone, and he must depend on the ultimate solvency of his customer at the expiration of the term of credit.”

The exercise of the right to hold the lumber, under the undisputed facts of this case, was not a rescission of the contract of sale, but a resumption of possession by the vendor in order to assert his lien under the very terms of his contract. There is no suggestion of a fraudulent misrepresentation, as the defendant had fifteen days, at least, within which to examine the boards in the light of the inventory furnished to him by the plaintiff. His payment of $750 and unequivocal promise to pay the balance of the money when he returned from Mexico, fix his liability under his contract, and, coupled with the provision in the offer that payment was to be made Cash, on the ground,” fully justified the plaintiff in insisting on the actual compliance with the terms of his contract. There is nothing suggestive of cancellation or rescisson of the contract, but the insistance of the plaintiff was that it should be performed according to its terms. It is true, that the defendant contended that the payment was not to be made before the lumber was taken away from the farm, but that is a fact which has been passed upon by a jury and resolved by that tribunal in favor of the plaintiff’s contention.

The third point, as presented, was properly refused as stated, for the reason that the question of the measure of damages for the breach of the contract was subject to and dependent upon the principal question of fact to be disposed of by the jury — whether the contract as above suggested, was in any way modified — and if they found in favor of the plaintiff, the measure of damages was the actual balance due on the contract, with its interest.

The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Robbins v. Locust Mountain Savings & Loan Association, Appellant.

      Ejectment — Deed—Alteration of deed — Record—Notice—Conditional verdict.

    In an action of ejectment it appeared that the common source of title was one Jay who some years before the institution of the suit agreed orally to convey the premises in .dispute to one Devins. Jay executed a deed to Devins and delivered it to his own attorney with instructions to deliver the deed to Devins, when the purchase money, $700, should be paid. Devins entered into possession, but paid nothing. He contracted with one Pace to build a house thereon. Robbins, the plaintiff, furnished material for the house amounting to about $200. His attorney advised him that the best way to secure his claim would be to obtain title from Jay. Robbins subsequently arranged with one Yost to act for him as middleman to secure the deed from the attorney of Jay. Without either Jay’s knowledge or Robbins’s knowledge, the deed was altered by substituting Yost’s name for that of Devins. Yost then took the deed and paid for Robbins $700 to Jay’s attorney, and Jay thereafter received the money. Upon the delivery of the deed Yost placed it on record, and thereafter made a deed to Robbins which was also recorded. In the meantime Pace filed a mechanic’s lien naming Devins and Yost as owners, and took judgment for the amount of his claim. Robbins attempted to have this judgment opened and petitioned that he might be permitted to intervene as a party defendant. The court refused to allow this on the ground that the deed under which he claimed was a forgery. The land was then sold, and the purchaser at the sheriff’s sale after receiving a deed from the sheriff executed a bond and mortgage to the defendant. The defendant entered judgment on the bond accompanying the mortgage and became the purchaser of the premises. Subsequently Robbins received from Jay a quitclaim deed, reciting the circumstances, and then brought this ejectment. Held, that under all the circumstances of the case the court committed no error in allowing a verdict for the plaintiff conditioned upon his executing a deed for delivery to the defendant upon payment by the latter of $700, and thereupon judgment in favor of defendant.
    Argued March 5, 1908.
    Appeal, No. 56, March T., 1908, by defendant, from order of C. P. Luzerne Co., Oct. T., 1906, No. 612, sustaining exceptions to report of referee in case of I. Robbins v. Locust Mountain Savings Fund and Loan Association.
    Before Rice, P. J., Porter, Henderson, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Felix Ansart, Esq., referee.
    Fuller, J., filed the following opinion:
    This case strikingly shows how much trouble can be created by an individual who undertakes to buy a lot and build a house thereon without the means to pay for either.
    Such was the humble origin from which proceeded a complex tissue of circumstances involving criminal blunder, if not actual crime, and the activities of a dozen lawyers.
    The action is ejectment, and the learned referee reports that judgment should be entered in favor of the defendant. His conclusion is based upon the premise that the plaintiff, although vested with the legal title, is now estopped from asserting it because party or privy to a certain altered deed forming a link in the title set-up by the defendant.
    If that premise be correct the report should be sustained and judgment should be entered in favor of defendant.
    If that premise be not correct the report should be overruled and judgment should be entered in favor of the plaintiff.
    The exceptions present a great variety of propositions, and particularly propositions urging the incompetency of defendant’s case on surrebuttal in which the matter of estoppel was advanced. But the ends of justice can be fully met by restricting discussion at this stage to the simple question whether or not the' plaintiff is justly estopped, under all the evidence, from maintaining his action.
    To make a long story short and a confused story simple, I will undertake to state in as few possible words the history of the case as gleaned from the undisputed evidence and the referee’s undisputed findings of fact.
    The common source of title was one Jay. He agreed, orally, about February 14, 1898, to sell for $700 to Devens, who took possession without payment. Jay then placed in the hands of his attorney N. a deed of that date duly signed and acknowledged for delivery to Devens, the grantee named therein, upon security or payment of the price. Devens, without taking deed, contracted with Pace to build a house, and materials therefor approximating $300 were furnished by Robbins. Devens occupied the house but paid nothing. Robbins, concerned about his claim, was advised by his attorney B. to pay the price and get the title from Jay. Following this advice he handed the money to B., who handed it to N., who handed it to Jay. Somebody then, without knowledge of Jay or Devens, erased the name of Devens as grantee in the said deed and inserted the name of Yost, who was a mere conduit, and made deed at once to Robbins. Both deeds were recorded. Pace filed a mechanic’s lien against Devens and Yost, as owners or reputed owners, and obtained judgment. Robbins asked the court to open judgment and allow him to intervene as a defendant, averring ownership under deeds supra, but the court refused on ground that deeds were null by reason of alteration. At sheriff’s sale on judgment, Harrower bought and then mortgaged to the defendant, who later caused sheriff’s sale on bond accompanying mortgage and became purchaser. Robbins gave notice at last sheriff’s sale that legal title was in Jay and only equitable title in Harrower. Afterwards Robbins received from Jay a quitclaim deed, reciting the circumstances, and then brought this ejectment.
    The legal effect of the transaction between Jay and Devens,■ as decided by this court in Pace v. Yost et ah, 10 Kulp, 538, virtually was to make Devens a vendee in possession with an equitable title under articles of agreement, and Jay, vendor, with the legal title. Therefore the precise legal situation is, that Robbins, who paid the purchase money and has the legal title of Jay, vendor, is plaintiff in ejectment against the association, which has the equitable title of Devens, vendee.'
    The plaintiff is not in any event entitled to an absolute judgment, as he evidently realized in making at the close of the trial the tender of deed upon payment of price, and in giving notice at the sheriff’s sale to defendant.
    But he is entitled to a conditional judgment as in ejectment to enforce payment of purchase money, unless debarred by an estoppel operating upon Jay and himself, or either of them, and preventing assertion of nonpayment.
    The source of estoppel must be found in the delivery and record of the altered deed, which might induce a subsequent purchaser for value without notice to believe that the money had been paid.
    There would be no estoppel unless (1) Jay or Robbins, one or both, should be held responsible for that performance, and (2) defendant association relying upon its verity became purchaser for value without notice.
    Jay, in fact, was absolutely innocent, having no knowledge of the performance until long afterward, and, therefore, his responsibility must flow from the rule of agency, or from the rule of holding responsible the one of two innocent parties, whose act, though innocent, occasioned the loss.
    Robbins did not know of the alteration until three months ' afterward, but, aside from that circumstance, he was an active participant in the whole performance, devised for his benefit by his attorney to secure his claim.
    The conclusion is irresistible that Robbins at least, if not Jay, should be held responsible for acts well calculated to create in the mind of one who might examine the record the reasonable inference of payment.
    In determining next whether the defendant association relied upon the verity of the recorded deed, it is necessary to presume, as there is no positive proof, that when it took from Harrower the mortgage which formed the inception of its purchase the record was examined'in its behalf and the mortgage taken on faith thereof.
    The estoppel is not complete without that presumption.
    If the mortgage was taken without examination or inquiry, which is possible although not probable, or if it was taken upon faith of the mortgagor’s assurance, which is within the range of probability, or if the security of the equitable interest was considered sufficient, reliance upon the record could not be claimed, and a vital ingredient of the defense would be lacking.

      From positive proof of examination, we might presume reliance thereon, but in the absence of proof the vital question is,.upon whom devolves the burden?
    Does it devolve upon the defendant association, alleging estoppel, to prove affirmatively as an essential element that the record was examined, or upon the plaintiff Robbins, denying estoppel, to disprove the element?
    General rules of evidence promptly suggest that the burden rests upon him who asserts an affirmative, and particularly upon him who asserts an estoppel, to establish his allegation, and I am unable to find that he is helped out in this particular in the present case by any legal presumption.
    Upon this ground, if no other, the referee erred in finding estoppel.
    If, however, we allow the defendant the benefit of presuming that it examined and relied upon the record, there still remains for consideration the question whether it purchased with or without notice of nonpayment.
    In determining this question we may disregard the notice given at the sheriff’s sale, because the inception of defendant’s right was the mortgage and not the sale upon the bond accompanying the same.
    But we are compelled to consider what reasonable inquiry should have been suggested by the record.
    The proper record appurtenant to the mechanic’s lien gave notice of the application by Robbins to intervene on the ground of ownership, suggesting the further reasonable inquiry, how he claimed ownership, and this inquiry would have led directly to the discovery that the price had not been paid by Devens but by Robbins, and that the original legal title, therefore, either remained in Jay or had been transferred to Robbins.
    We may also mention that .D. C. Harrower, brother and law partner of the Harrower who bought at sheriff’s sale, was attorney for Pace in the mechanic’s lien and scire facias thereon, as a significant circumstance bearing upon the purchasing Harrower’s knowledge of the situation, and affecting the defendant, but we do not rely upon this circumstance, as it was not clearly brought out in the evidence nor mentioned in the argument.
    The conclusion of the whole matter is that upon one ground or the other the finding of an estoppel was erroneous.
    We hesitate long before disturbing the report of so learned, painstaking and conscientious a referee, but we are firmly convinced that Robbins paid his money in good faith, that he had no guilty complicity, although he was the intended beneficiary, in the performance of the attorneys, that the defendant has no just complaint under the evidence if allowed to retain the benefit of the equitable title, subject to payment of the price, and that substantial justice will be accomplished in strict accordance with legal principles by allowing Robbins to recover a conditional judgment.
    We, therefore, sustain the twenty-fourth exception, overrule the conclusion of the referee that plaintiff is estopped from recovery, and direct judgment in favor of the plaintiff for the land described in the writ, upon condition that within twenty days he deposit with the prothonotary a general warranty deed for said land, duly signed and acknowledged, for delivery to the defendant association upon payment to .the prothonotary for the plaintiff of $700, with interest from May 10, 1898, and thereupon judgment absolute shall be entered in favor of the defendant.

      Error assigned was in sustaining exceptions to report of referee.

      Geo. H. Troutman, with him T. J. Chase and Walter G. Treibly, for appellant.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellee.
    July 15, 1908:
   Opinion by

Orlady, J.,

This action of ejectment, after being at issue, was referred to a referee, under the Act of March 23, 1870, P. L. 540, who made a report to which exceptions were filed, and after a hearing a judgment was directed to be entered in favor of the plaintiff for the land described in the writ, upon condition that within twenty days he deposit with the prothonotary. a general warranty deed for said land, to be delivered to the defendant association upon payment of $700 and interest to the prothonotary for the plaintiff, whereupon judgment absolute was to be entered for the defendant.

The common source of title was Rev. Stephen Jay, who agreed orally, about February 11,1898, to convey the premises in dispute to George E. Devins, and pursuant to that agreement, he executed, with his wife, a deed in fee. simple dated February 14, 1898, and placed it in the hands of one E. D. Nichols, Esq., his attorney, with instructions to deliver the deed to Devins when the purchase money, $700, should be paid.

Devins entered into possession of the premises under the verbal agreement about March, 1898, and began the erection of a building thereon under a contract with B. M. Pace, who furnished the greater part of the labor and materials for the building. Robbins, the present plaintiff, also furnished material amounting to about $300, and upon consultation with his attorney, was advised that the best way to secure his claim would be to obtain title to the- premises from Jay. Robbins subsequently arranged with one E. M. Yost, who agreed to act as a middleman to secure the deed from the attorney of Jay, who had retained it for the reason that the purchase price had not been paid, and when Yost agreed to pay this sum,- the deed was altered by erasing the name and residence of George E. Devins, the grantee therein named, and substituting therefor the name and residence of E. M. Yost. He- as attorney for Robbins, then paid Nichols the $700 handed to him by his client, which Nichols immediately paid over to his client, Jay, the original grantor. The altered deed was delivered to Yost, who put it on record the same day, and under his agreement to act as middleman, he, Yost, made a deed to Robbins for the premises in dispute, which was subsequently placed on record.

In the meantime, Pace, one of the contractors of the building, filed a mechanic’s lien, naming Devins and Yost as owners, and on June-17, 1899, took judgment for the amount of his claim. After judgment had been entered on the mechanic’s lien, Robbins endeavored to have it opened, and petitioned that he might be permitted to intervene as a party defendant, which was refused by the court, and the land was sold on a levari facias on the mechanic’s lien judgment by the sheriff to one Frank B. Harrower, to whom the sheriff made his deed. On the following day Harrower and his brother, who were attorneys, executed a bond and mortgage to the defendant association, upon the premises in dispute. The real estate with the improvements is admittedly worth $3,000 and more.

After a full examination of the whole testimony, it appears clearly that Jay, the original grantor, was innocent of any wrongdoing throughout the transaction and knew nothing of the change made in his deed to Devins. It is equally clear that Robbins did not know of the alterations in the deed until three months afterwards, but it is as certain that he was a participant in the transaction, which was devised for his benefit by his attorney to secure his claim. The conclusion of the referee was that the plaintiff, although vested with the legal title, was estopped from asserting it because he was a party or privy to the alteration of the deed which forms a link in the title set up by the defendant, but we feel that the decision of the court below is fully warranted under the facts.

While there is no positive proof that, when the defendant association took the mortgage from Harrower, which formed the inception- of their title, it had actual knowledge of the forgery, yet it must be held to have known the facts which a search would have disclosed, and an examination would have shown such a. tortuous course of dealings, aptly described by the court below as “a complex tissue of circumstances, involving criminal blunder if not actual crime,” that if a further and fuller inquiry had then been made the whole truth would have been developed. Athwart the path of the defendant’s title lay this forged deed with the distinct notice of the adjudication by the court prior to the sheriff’s sale that it was a forgery. Under all tfie facts, we feel that the lower court was correct in holding “That Robbins paid his money in good faith, that he had no guilty complicity although he was the intended beneficiary in the performance of the attorneys; and that the defendant has no just cause of complaint, if allowed to retain the benefit of the equitable title, subject to the payment of the original purchase price of the lot,” which will be doing substantial justice between these parties.

The assignments of error are overruled and the judgment is affirmed.


text:
    Croyle Township Road.

      Road, law — Breadth of road — Approval nisi nunc pro tunc — Practice, Q. S.

    The court of quarter sessions cannot fix the breadth of a public road and approve the report of viewers nisi as of a former term, and thus deprive interested persons of the right to file exceptions after the breadth has been fixed and approval nisi entered.
    Argued May 4, 1908.
    Appeal, No. 31, April T., 1908, from order of Q. S. Cambria Co., Sept. T., 1906, No. 2, In Matter of Road in Croyle Township and South Fork Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for road.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order of the court.

      John M. Rose, for appellant,
    cited: Mead Twp. Road, 66 Pa. 185; Lackawanna Twp. Road, 112 Pa. 212; Appeal of Central R. R. Co. of N. J., 102 Pa. 38.

      D. P. Weimer, with him Robert P. Murphy, for appellees,
    cited: Barr Twp. Road, 29 Pa. Superior Ct. 203; Ross Twp. Road, 36 Pa. 87; Mead Twp. Road, 66 Pa. 185; McConnell’s Mill Road, 32 Pa. 285; Road in Sterrett Twp., 114 Pa. 627; Charleston Road, 2 Grant, 467.

      July 15, 1908:
   Opinion by

Morrison,-J.,

■ The- proceedings brought up for review on this appeal and certiorari were begun by petition filed in the court of quarter sessions at September Term, 1906. On September 3, 1906, viewers were appointed to lay out a road and report at next term. December 3, 1906, report of viewers filed, laying out a new road. March 1, 1907, exceptions filed. May 2, 1907, exceptions filed. And no order of court approving the report of viewers nisi and fixing the breadth of the road was filed till May 7, 1907, when the court filed an opinion and order overruling the exceptions and directing “that the formal action of the court be endorsed upon the report of viewers nunc pro tunc as of the proper date.” This-order was filed May 7, 1907, nunc pro tunc, as of January 22, 1907. We are unable to discover .why the latter date was selected but that is not important, because the court had no power to make this nunc pro tunc order. The record also shows: “May 7, 1907 exceptions dismissed and report of viewers confirmed.” This seems to be a final order from which an appeal will lie and, therefore, this appeal and certiorari at least brings up for review the record proper.

The Act of June 13, 1836, sec. 4, P. L. 551, provides that: “ If the court shall approve of the report of the viewers, allowing a road they shall direct of what breadth the road so approved shall be opened and at the next court thereafter, the whole proceeding shall be entered on record, and thenceforth, such road shall be taken, deemed and allowed to be a lawful public road or highway, or private road, as the case may be.”

The act of 1836 requires the breadth of the road to be fixed and the approval nisi to be made at one term and then remain in fieri till the next term, and open to exceptions, or to prayer for a review. The breadth of the road should in all cases be fixed -at the term when the report of viewers is approved nisi: Road in Silver Lake, 3 W. & S. 559; Road from Bridgewater, 4 W. & S. 39; Road in Norriton & Whitpain, 4 Pa. 337; In re Shaefferstown Road, 5 Pa. 515; Charleston Road, 2 Grant, 467; Road to Ewing’s Mill, 32 Pa. 282. Mead Township Road, 66 Pa. 185, cited by the court is in harmony with the above cases, and so is Road in Ross Township, 36 Pa. 87.

The Charleston Road, 2 Grant, 467, would seem to be authority for the doctrine that if we reverse all proceedings subsequent to the filing of the report of viewers, December 3, 1906, and remit the record, the court can then at a regular term approve the report of viewers nisi, fix the breadth of the road and allow the proceedings to remain in fieri for exceptions till the next regular term. All of the cases hold that the court cannot fix the breadth and approve nisi, as of a former term and thus deprive interested persons of the right to file exceptions after the breadth has been fixed and approval nisi entered.

This record is manifestly erroneous after the date of the filing of the report of the viewers. If the parties who filed exceptions, before any order was made fixing the breadth of the road, can be said to have no cause of complaint, which we do not say, all other interested persons have the right to file exceptions after the breadth has been fixed by a proper order, during the period of time between one term and the next.

In re Road in Township of Lackawanna, 112 Pa. 212, it seems all proceedings subsequent to the filing of the report of the viewers might have been reversed and the lower court directed to proceed as in Charleston Road, 2 Grant, 467, which is the practice here contended for by counsel for appellee. But in the former case the Supreme Court distinctly refused to adopt the practice in the Charleston Road case, saying: “We have nothing remaining, therefore, but the report of the view, and as the width of the road, reported by the viewers, was not fixed by the court as required by law, the record is incurably defective. The order of June 17, 1883, fixing the width, nunc pro tunc, as we have already said cannot be sustained; the final decree of confirmation entered December 24, 1883, is therefore erroneous.” In that case Charleston Road, 2 Grant, 467, was cited by counsel. See Derry Township Road, 11 Pa. Superior Ct. 232.

We feel bound by that case to reverse the entire proceedings of the quarter sessions and if the public necessity for this road still exists, the matter should be proceeded with de novo.

The entire proceedings of the quarter sessions are therefore reversed and set aside.


author: Henderson, J.,

text:
    Thiele v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railways — Collision between car and wagon — Turning into tracks.

    In an action against a street railway company to recover damages for personal injuries, it appeared that the plaintiff was driving in a carriage on the south-bound track of defendant's double-track railway, when a car approached him from behind; he turned into the north bound track, at the same time looking and listening for a car, but neither seeing nor hearing one. It was not practicable to turn out to the side of the south-bound track. After getting on to the north-bound track plaintiff discovered a car approaching him on the track, and it not being possible to turn to the side of the north-bound track he turned back into the south-bound track. In doing so his wheel slipped along the rail and his wagon was struck by the car on the north-bound track, and he himself was thrown under the running board of the south-bound car. There was evidence that the car on the north-bound track was running at a high rate of speed, but that it could have been stopped in time to prevent the accident. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued May 12, 1908.
    Appeal, No. 147, April T., 1908, by defendant, from judgment of C. P. Beaver Co., Dee. T., 1906, No. 45, on verdict for plaintiff in case of Frederick Thiele v. Beaver Traction Company.
    Before Rice, ■ P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $500. Defendant appealed.

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

      James L. Hogan, with him John M. Buchanan, for appellant,
    cited: McCartney v. Union Traction Co., 27 Pa. Superior Ct. 222; Bornscheuer v. Traction Co., 198 Pa. 332; Carroll v. R. R. Co., 12 W. N. C. 348; Kunkle v. Lancaster County, 219 Pa. 52; Yingst v. Railway Co., 167 Pa. 438.

      W. A. McConnel, for appellee,
    cited: Gilmore v. Railway Co., 153 Pa. 31; Kestner v. Traction Co., 158 Pa. 422; Kaechele v. Traction Co., 15 Pa. Superior Ct. 73; Davis v. Railway Co., 25 Pa. Superior Ct. 444; Thompson v. Traction Co., 180 Pa. 114; Cannon v. Traction Co., 194 Pa. 159.
    July 15, 1908:
   Opinion by

Henderson, J.,

It was not negligence per se for the plaintiff’s companion to drive onto the north track when the approach of a car on the south track made it necessary to get out of the way. The defendant maintained a double track railway in the public highway. The part of the highway covered thereby was paved and was apparently the portion of the highway used for vehicles. The public have a right to use this paved way in common with the defendant. It is the duty, to be sure, of- a driver to leave the track for the purpose of permitting a car to pass, but he is entitled to reasonable warning and time to get out of the way. The defendant’s employees were bound to manage the car in such a way as not to subject to unnecessary danger those using the public highway not negligently. The degree of care called for varies with the circumstances of the particular case, and where there is a conflict of evidence in regard to the existence of circumstances which would vary the standard of care the question must necessarily be one for a jury. After a careful review of the evidence we are unable to reach the conclusion that the court should have determined as a matter of law that the plaintiff was guilty of contributory negligence. According to the testimony as introduced by the plaintiff the approach of a car from the rear compelled the driver to leave that track. In doing so, he drove onto the north track. It was not practicable to turn out on the south side of the south track. At that time the plaintiff looked along the north track where he had a view of about 600 feet. At the same time he listened for the approach of a car and neither saw nor heard the car coming. The car on the track which the plaintiff had just left was moving slowly at the side of the vehicle in which the plaintiff was riding. When the car on the north track was discovered, the driver attempted to go from that track onto the south track in front of the car which had come up behind him. In so doing, the wheels of the carriage slipped along the rail and the left hind wheel was struck by the car approaching on the north track. The rear part of the carriage was crushed and the plaintiff thrown into the air and under the running board of the car on the south track. There was no opportunity to turn to the north and the way of escape adopted was the only one open. Steeb, the driver, estimated the distance which a car could be seen approaching on the north track as much less than that stated by the plaintiff, but it was shown that a car could be stopped in less than thirty feet, and the motorman of the car in collision testified in behalf of the defendant that he saw the carriage in which the plaintiff was riding three or four blocks away on the other track and “thought maybe they would pull over on my track because I heard the other motorman gonging them.” There was testimony that the car was running rapidly. The defendant offered evidence to show that the parties in the carriage might have turned out on the south side of the tracks, where there is alleged to be a driveway from eleven to seventeen feet in width, and that instead of doing so, they remained on the south track until the car approaching on the north track was within about fifteen or twenty feet, when suddenly the driver-whipped his horse and turned onto the north- track in- front of the approaching car, when the collision immediately occurred. • The evidence of the defendant’s witnesses was contradictory, however, on this point, two of them, at least, Charles Cummings and Mrs. Laughlin, having testified that the carriage was on the north track and that the accident occurred while the driver was attempting to get out of the way of the approaching car, by driving across the south track, substantially as the plaintiff said was done. Leaving this contradiction out of account, however, there was a clear issue of fact upon which the case turned. If the plaintiff in going onto the north track neither saw nor heard the car approaching thereon, when he was on the lookout for a car, he was not guilty of negligence in so doing. If the motorman of the car with the horse and carriage in plain view and with an opportunity to avoid the collision by proper control of his car when such control might have been exercised, neglected to avoid the collision, the defendant is liable for the consequences of such neglect. The court submitted the disputed questions to the jury in a careful and impartial charge in which we do not find any reversible error. The responsibility for the determination of the facts was upon the jury, and the duty of the correction of a mistake made by it rested on the court below.

The judgment is affirmed.

Morrison, J., dissents.


text:
    Joynes v. Postal Telegraph Cable Company, Appellant.

      Telegraph companies — Negligence—Mistake in telegram — Contract.
    Where a dealer in one city quotes by telegraph a price for goods to a dealer in another city, and by mistake of the telegraph company, the price in the telegram received is less than that stated by the sender, and the receiver of the telegram orders goods at the lesser price, but the sender of the telegram delivers the goods, invoiced at the true price, the receiver may either decline to accept them, or take them at the invoice price. If he chooses the latter course, there is a new contract and the telegraph company is not liable to him for the difference in the price.
    If in such a case the telegraph company is considered the agent of the sender, then the remedy of the receiver is not against the company, but against the sender for violation of the contract.

      If it appears that the receiver could not have bought the goods at the lesser price, he has not lost his bargain, and consequently has no action against the telegraph company.
    A party who selects the telegraph as a means of business communication must as between the sender and receiver bear the loss caused by the errors of the company.
    Argued April 29, 1908.
    Appeal, No. 212, April T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1901, No. 396, on verdict for plaintiff in case of H. W. Joynes v. Postal Telegraph-Cable Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover for alleged negligence in the transmission of a telegram. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $205. Defendant appealed.

      Error assigned was in refusing to enter judgment for defendant non obstante veredicto.

      W. S. Dalzell, of Dalzell, Fisher & Hawkins, for appellant.

      L. K. Porter, with him S. G. Porter, for appellee.
    July 15, 1908:
   Opinion by

Henderson, J.,

The plaintiff’s action proceeds upon the theory that he was bound by his telegram of May 11, 1900, for the price of $2.90 a barrel for the white potatoes ordered. It will be observed, however, that his telegram was in reply to one of the same date addressed to the plaintiff by Kohlman Brothers, in which they solicited an order from the plaintiff. In the latter telegram the price as named in the copy furnished to the plaintiff was $2.20 a barrel; whereas, the price stated in the dispatch as delivered to the defendant by Kohlman Brothers in New Orleans was $2.90 per barrel. The plaintiff’s order was. based upon the price fixed in the telegram as he received it and whether the telegraph company is to be considered the agent of the sender or of the receiver of the message the result is the same as to the plaintiff’s right of action. If the defendant was the agent of Kohlman Brothers, the plaintiff was in no way chargeable with a mistake in the transmission of the message, nor with its consequences. If, on the other hand, it was the agent of the receiver of the message, the telegram as delivered would constitute the basis of a contract and the plaintiff was not bound for he did not contract at any other price than that named to him: Joyce on Electric Law, sec. 903 et seq. The plaintiff had notice the same day or on the morning' of the day following that the mistake complained of had occurred. He was at liberty to refuse to receive the goods at the price charged by the consignor, but with a knowledge of that price he elected to accept. This amounted to a new contract with which the negligence of the defendant was not connected, and if the result of the venture was unprofitable to the plaintiff he cannot charge the defendant with his loss. Whatever damage he sustained by reason of the defendant’s failure to correctly transmit the message up to the time that he elected to take the produce at the price fixed by the seller would be a basis for an action, for that loss would grow directly out of the wrong done by the defendant. But that is a different cause of action from that set up by the plaintiff, for the declaration and the evidence show that the plaintiff bases his action on the injury done him in naming a lower price for the merchandise than its actual price. It will be observed, too, that the dealer in New Orleans first invited the use of the telegraphic agency as a means of communication and thereby brought himself within a principle which is equitable and sustained by authority that the party who selects the telegraph for that purpose must, as between the sender and receiver, bear the loss caused by errors of the company: Ayer v. Western Union Telegraph Co., 79 Maine, 493; Durkee v. Vermont Cent. R. R. Co., 29 Vermont, 127; Saveland v. Green, 40 Wis. 431; Thompson on Electricity, sec. 483. In N. Y. & Wash. Printing Telegraph Co. v. Dryburg, 35 Pa. 298, it was held that the relation of' principal and agent existed between the sender and the telegraph company. Whether the company might also be considered the agent of the receiver was not decided. It was adjudged, however, that a third party even might have an action for misfeasance by the company, the action not being founded upon contract but upon the negligent act of the company in altering the message, thereby causing a loss to the receiver. The same principle was announced in Western Union Telegraph Co. v. Richman, 19 W. N. C. 569. In each of the last two cases the action was by the receiver for loss sustained by the negligence of the telegraph company. In neither of them was it contended that a contract existed between the sender and the receiver of the changed telegram. No evidence was offered of any other damage than the difference between the prices in the telegram as received and as delivered to the company in New Orleans. For that difference' the plaintiff ' was permitted to recover. But as Kohlman Brothers did not agree to sell at the lower price and the plaintiff did not agree in his telegram to pay the higher price, we find no basis-for a conclusion that the defendant is liable for the damages claimed. The plaintiff was not offered the merchandise at $2.20 a barrel. So far as appears from the evidence he had no opportunity to buy it elsewhere at that price or at any price lower than the New Orleans dealers charged. He did not lose a bargain, therefore. There was no contract created by the telegrams which bound the plaintiff to pay $2.90 a barrel. If when advised of the facts he chose to take the goods at that price we must assume that the state of the local market justified -him in so doing,'and that his present complaint grows out of the fact disclosed by the evidence that a rapid decline in that market within a few days was the cause of his loss rather than the erroneous telegram. The first assignment of error is sustained.

The judgment is reversed.


text:
    Spencer’s Estate.

      Wills — Gift of residue — Gift to children — Lapsing of legacy — Failure to lapse — Act of April 8, 1833, P. L. 249.
    Where a father gives the residue of his estate, real and personal, to his two daughters, and one of the daughters dies in her father’s lifetime leaving children to survive her, the gift to the daughter is protected from lapsing by sec. 12 of the Act of April 8, 1833, P. L. 249, and the share upon her father’s death will go to her children.
    Argued May 11, 1908.
    Appeal, No. 196, April T., 1908, by Alfred Hileman, guardian, from decree of O. C. Armstrong Co., Sept. T., 1907, No. 18, dismissing exceptions to auditor’s report in Estate of Jacob Spencer, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Ross Reynolds, Esq., auditor.
    The opinion of the Superior Court states the facts of the case.

      Error assigned was decree dismissing exceptions to auditor’s report.

      C. E. Harrington, for appellant.
    Appellant contends that the portion of the residuary estate devised and bequeathed to Rosanna Hankey, inasmuch as she - was dead some two years before the will was written, has lapsed, or is void, and that the testator died intestate as to said residuary interest: Gray’s Est., 147 Pa. 67; Neff’s App., 52 Pa. 326; Sloan v. Hanse, 2 Rawle, 28; Gorgas’s Est., 166 Pa. 269; Waln’s Est., 156 Pa. 194; Everman v. Everman, 15 W. N. C. 417; Harrison’s Est., 18 Pa. Superior Ct. 588.

      H. A. Heilman, with him J. W. King, for appellees.
    The legacy did not lapse: Minter’s App., 40 Pa. 111; Schieffelin v. Kessler, 5 Rawle, 115; Com. v. Nase, 1 Ash. 242; Blackwell v. Scoutem, 199 Pa. 446; Kinzler’s Est., 22 Lanc. L. Rev. 3; Newbold v. Prichett, 2 Whart. 46; Gray’s Est., 147 Pa. 67; Massey’s App., 88 Pa. 470; Neff’s App., 52 Pa. 326; Everman v. Everman, 15 W. N. C. 417; Gorgas’s Est., 166 Pa. 269; Waln’s Est., 156 Pa. 194.
    July 15, 1908:
   Opinion by

Henderson, J.,

The clause of the will of Jacob Spencer involved in this appeal is in these words: “The residue of my estate, real and personal and mixed shall be divided equally between Rosanna Hankey and Emma Riggle.” Both of the legatees were daughters of the testator. Rosanna died in the lifetime of her father and before the execution of his will, leaving to survive her four children, all of whom survived the testator. The controversy arises as to the distribution of the share of her father’s estate which Rosanna would have taken if she had survived him, the appellant contending that the bequest to her was void and that distribution should be made to the next of kin to the testator and not to the children of Rosanna. It is claimed, on the other hand, that the legacy is saved by the twelfth section of the act of April 8, 1833, P. L. 249, which provides that “no devise or legacy in favor of a child or other lineal descendant of any testator, shall be deemed or held to lapse, or become void, by reason of the decease of such devisee or legatee, in the lifetime of the testator, if such devisee or legatee shall leave issue surviving the testator; but such devise or legacy shall be good and available in favor of such surviving issue, with like effect as if such devisee or legatee had survived the testator.” The facts bring the case within the letter of the statute and it saves and makes effective that which without the statute would be a void legacy. The same question was decided in Minter’s Appeal, 40 Pa. 111, which arose under the Act of May 6, 1844, P. L. 564, securing devises and legacies to the issue of deceased brothers and sisters of testators. The statutes are similar in character and are remedial in their object. In the case referred to the devisee was a sister of the testator. She died before the will was made, leaving issue who survived the testator. The bequest to her was of one-half of the residue of the estate. It was there said that the act saved the bequest from becoming void and this interpretation was considered so just as to make a discussion of the subject a waste of words. The same conclusion was reached in Schieffelin v. Kessler, 5 Rawle, 115, in considering the effect of the Act of March 19,1810, 5 Sm. L. 112, which the act of 1833 replaced. That was the case of a bequest of one-fourth of the residue of the estate to a daughter of the testator who died before the latter. The statutes apply expressly to devises and legacies which would be void as well as lapsed, but for this legislative protection. The appellant’s argument proceeds upon the assumption that the legacy is void and the cases cited have reference to the distribution of void or lapsed legacies. If we concede the premises the conclusion is correct, but the very object of the enactment was to save such bequests from becoming void or lapsed. Gray’s Estate, 147 Pa. 67, and Waln’s Estate, 156 Pa. 194, relied upon by the appellant are not in point on the question here raised. The former relates to the distribution of a bequest to a charity concededly void because the will was not executed in conformity with the statute. The latter case is one of a bequest revoked by a codicil without any disposal of that portion of the estate included in the bequest. The argument of the appellant seems to concede the effect of the statute on all devises and bequests except those which are residuary, but we find nothing in reason or precedent to warrant the distinction. The devise or bequest of one-half of the remainder of the testator’s estate is as absolute and distinct as if the amount were named. It is a devise or bequest within the meaning of the act of 1833, and, therefore, not void or lapsed. We agree with the auditor and the court below in the conclusion reached.

The decree is affirmed.


author: Beaver, J.,

text:
    Gibson v. Bessemer & Lake Erie Railroad Company, Appellant.

      Negligence — Joint tort feasors — Bailment—Horse—Railroads.
    Where the owner of a livery stable lets out a horse and buggy, and the horse is killed at a grade crossing by the joint negligence of the bailee and the railroad company, the negligence of the bailee is not to be imputed to the owner of the horse, so as to prevent him from recovering from the railroad company.
    Argued May 12, 1908.
    Appeal, No. 38, April T., 1908, by defendant, from judgment of C. P. Butler Co., Dec. T., 1906, No. 68, on verdict for plaintiff in case of Martin-L. Gibson v. The Bessemer & Lake Erie Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover, damages for the death of a horse. Before Galbreath,' P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $269.67. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Lev. McQuistion, with him C. L. McQuistion, for appellant.

      John B. Henninger, for appellee.
    July 15, 1908:
   Opinion by

Beaver, J.,

Plaintiff let for hire to one Lantz a horse and buggy. With a companion, Lantz attempted to cross the railroad of the defendant at a grade crossing. On cross-examination, in answer to the question, “You didn’t stop?” he said “No, sir,” and later, as the reason for not doing so, said that, having looked down the track and afterwards up the track, he saw no occasion for stopping and drove on and, when the horse was upon the track, the tender of a locomotive backed and struck and killed him.

The bailor, the owner of the horse, seeks to recover in this case from the railroad company the value of the horse and damages for the injury to the vehicle to which it was attached. If Lantz, the bailee of the horse and buggy, were the plaintiff here, it is clear that there could be no recovery, because of his admitted contributory negligence in disregarding the well-known rule of “Stop, look and listen.” The court left it for the jury to say whether or not the defendant was negligent.

The assignments of error which relate to the answers of the court to the points submitted by the defendant and the plaintiff and the refusal of the defendant’s motion for judgment non obstante veredicto all raise practically the same question, which is presented in the defendant’s first point and the court’s answer thereto as follows: “It was the imperative duty of E. E. Lantz, the occupant and driver of the buggy, to have stopped, looked and listened at the point at which he could see and hear, before crossing the railroad track. Answer: Affirmed as a rule of law, but not applicable in this case, for the reason that Lantz is not the plaintiff, unless his failure to do so was the sole cause of the accident.

The third assignment of error relates to the answer of the plaintiff’s first point, which was: “If M. L. Gibson, as keeper of a livery barn, hired, as bailor, to Ed. Lantz, bailee, a horse, buggy and harness, he, as such bailor, cannot be charged with, or held responsible for, the negligence of Ed. Lantz, bailee, if said Lantz was negligent in crossing the Bessemer & Lake Erie tracks in Butler borough. Answer: That is affirmed, with the qualification that you will recollect what I have already said to you, that, if the negligence of the driver was the sole cause of the accident, there could be no recovery.”

The plaintiff’s second point and the answer thereto raise the other question embraced in the case: “ If the Bessemer & Lake Erie Railroad Company was negligent in not ringing the bell and blowing the whistle, or by running at an unlawful and undue rate of speed through Butler borough, and over a leading thoroughfare, and the jury so find, then the fact that driver, a bailee, was negligent will [not] excuse the negligence of said company, and the plaintiff is entitled to recover.”

The plaintiff’s third point raises the whole issue more clearly and is: “If the plaintiff, M. L. Gibson, hired or bailed a horse and buggy to Ed. Lantz, and the horse was killed and the buggy destroyed, while said Lantz was driving the same over the Bessemer & Lake Erie Railroad tracks in Butler borough, and both Lantz, bailee, and said railroad company were negligent, which negligence resulted in the destruction of the said bailor’s property, the bailor could sue both parties together, or either separately, and so recover the price of his property so destroyed. Answer: That is affirmed.”

The appellant has argued the case here as though the contributory negligence of Lantz, the bailee, was chargeable to the plaintiff, who was the bailor for hire, and that such contributory negligence being established by Lantz himself, there can be no recovery on the part of the plaintiff. As already seen, the court held this to be correct, in case the negligence of Lantz was the sole cause of the accident which resulted in the death of the horse and the partial destruction of the buggy, but that, if the railroad company was also negligent, then the defendant would be liable. If the defendant and Lantz were both negligent — and that the defendant was so negligent has been found by the jury — which of them would be responsible for the injury? They were joint tort feasors; their concurrent negligence caused the accident.

It was held in McColligan v. Penna. R. R. Co., 214 Pa. 229, that the driver of a hansom belonging to the Pennsylvania Railroad Company, who leased the horse and equipage from the railroad company for hire under a written contract, was not a servant of, but was the bailee of the railroad company, and that his negligence, which caused an injury to the plaintiff in that case, was not to be imputed to the bailor, Mr. Justice Elkin saying in the opinion: “The decisive question raised by this appeal is whether, as between the defendant and the driver of the hansom, the relation was one of master and servant or of bailor and bailee. If the former, the master is liable for the negligence of the servant; if the latter, the negligence of the bailee cannot be imputed to the bailor.” See also Connor v. Penna. Railroad Co., 24 Pa. Superior Ct. 241.

Under this principle, although the application of it here is to a different state of facts, the present plaintiff cannot be charged with the. negligence of the bailee, whose contributory negligence would have prevented recovery against the defendant, if he had been seeking redress for personal injuries. It follows that, if the defendant negligently contributed to the accident which caused the death of the plaintiff’s horse and the injury to his buggy, it would be liable.

In Little, Receiver, v. Hackett, 116 U. S. 366, it is held that “A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver.” Mr. Justice Field, who delivered the opinion of the court, says, in reference to the principle involved: “That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong. It would seem that the converse of this doctrine should be accepted as sound — ■ that when one has been injured by the wrongful act of another to which he has in no respect contributed, he should be entitled to compensation in damages from the wrongdoer. And such is the generally received doctrine, unless a contributory cause of the injury has been the negligence or fault of some person towards whom he sustains the relation of superior or master, in which case the negligence is imputed to him, though he may not have personally participated in or had knowledge of it, and he must bear the consequences. The doctrine may also be subject to other exceptions growing out of the relation of parent and child, or guardian and ward, and the like. Such a relation involves considerations which have no bearing upon the question before us.

“To determine, therefore, the correctness of the instruction of the court below — to the effect that if the plaintiff did not exercise control over the conduct of the driver at the time of the accident, he is not responsible for the driver’s negligence, nor precluded thereby from recovering in the action — we have only to consider whether the relation of master and servant existed between them. Plainly that relation did not exist. The driver was the servant of his employer, the livery stable keeper, who hired out him with horse and carriage and was responsible for'his acts.”

A very full discussion of the cases in England and in this country follows, and, in closing his opinion, Mr. Justice Field says: “But, as we have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it. ‘If the law were otherwise,’ as said by Mr. Justice Depue in his elaborate opinion in the latest case in New Jersey, ‘not only the hirer of the coach but also all the passengers in it would be under a constraint to mount the box and superintend the conduct of the driver in the management and control of his team, or be put for remedy exclusively to an action against the irresponsible driver or equally irresponsible owner of a coach taken, it may be, from a coach stand, for the consequences of an injury which was the product of the co-operating wrongful acts of the driver and of a third person, and that, too, though the passengers were ignorant of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried:’ New York, Lake Erie & Western Railroad Co. v. Steinbrenner, 47 N. J. L. (18 Vroom) 161.”

Our own cases of Dean v. Penna. R. R. Co., 129 Pa. 514, and Bunting v. Hogsett, 139 Pa. 363, contain discussions of the same general principle. In the former, Mr. Justice Clark very fully discusses the leading English case, Thorogood v. Bryan, 8 C. B. 115 (65 E. C. L. 114). This case is shown to be reversed by the English court of appeals in The Bernina, L. R., 12 Prob. Div. 58, decided in January, 1887. There is also a full citation of the authorities of the cases in this country, wherein it has been approved or “rejected as altogether indefensible.” In the latter case, Mr. Justice Clark says: “The rationale of the rule of Thorogood v. Bryan is expressly disavowed in our own case of Lockhart v. Lichtenthaler, and it is now rejected as untenable and wholly indefensible.

“Nor is there any rule or principle of public policy which will support such a doctrine.. If a person is injured by the concurrent and contributory negligence of two persons, one of them being at the time the common carrier of his person, there is no reason, founded in public policy or otherwise, which should release one of them and hold the other. It is true the carrier may be subjected to a higher degree of care than his co-tort feasor, but this affords no reason why either or both of them should not be held to that degree of care respectively, which the law imposes upon them, and be answerable in damages accordingly. The general rule undoubtedly is, if a person suffers injury from the joint negligence of two parties, and both are negligent in a manner which contributes to the injury, they are liable jointly and severally, and it would seem in principle to be a matter of no consequence that one of them is a common carrier. Neither the comparative degree of care required nor the comparative degrees of culpability established can affect the liability of either.”

Applying the principle laid down in these cases, we can see no error in the answers to the points of both defendant and plaintiff, as complained of by the appellant, nor in the refusal of the court to enter judgment n. o. v. for the defendant. The plaintiff not being responsible for the negligence of his bailee in the use of the horse and vehicle hired to him, the question of the negligence of the defendant was fairly submitted to the •jury in a charge of which no complaint is made, the court saying: “The burden of proof of negligence on part of the defendant company rests upon the plaintiff. He must prove to you by the weight of the evidence in the case that the accident happened through the negligence of the defendant company in some degree; that is, it either caused it in whole or contributed to the injury, and, if you find such is the case, that the defendant company either was negligent and that negligence resulted in this accident or contributed to the accident, in that event we say the plaintiff will be entitled to recover.”

The plaintiff, under the application of the principle set forth in the cases cited, although the facts here are different from any of them, was not in any sense responsible for the conduct :of his bailee. The contributory negligence of the bailee cannot be imputed to him, because he did not control his actions in any sense or to any extent. If, therefore, as we have already said, the defendant contributed to the accident which caused the death of the plaintiff’s horse and the destruction of his vehicle, it is responsible, and the jury having found that its negligence contributed to the accident, the verdict, moderate in amount, upon which the judgment has been entered, should stand.

Judgment affirmed.

Porter, Morrison and Orlady, JJ., dissent.


text:
    Blaney’s Estate.

      Appeals — Executors and adminstrators — Party interested.

    While an executor as such cannot appeal from a decree distributing funds in his hands, yet if the record shows that he is one of the distributees, an appeal by him will be considered as if made by a party interested.

      Appeals — Findings of fact — Auditor.
    The findings of fact by an auditor, on sufficient evidence and con- ’ firmed by the orphans’ court, will not be disturbed except for manifest error.

      Payments — Application of payments — Least secured debt.

    In the absence of an agreement or direction by the debtor to the contrary, the creditor has the right, in general, to appropriate a pay-, ment at his will, and he may, therefore, appropriate it to the least secured debt.
    Argued May 11, 1908.
    Appeal, No. 27, April T., 1908, by Frank Blaney, executor, from decree of O. C. Armstrong Co., March T., 1902, No. 3, dismissing exceptions to auditor’s report in Estate of J. A. Blaney, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of Austin Clark, Esq., auditor.
    The opinion of the Superior Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report.

      R. A. McCullough, with him H. A. Heilman, for appellant.

      Orr Buffington, with him O. W. Gilpin, for appellee.
    July 15, 1908:
   Opinion by

Beaver, J.,

This appears on its face to be an appeal by Frank Blaney, executor qua executor. It was held in Stineman’s Appeal, 34 Pa. 394, that “Executors, as such, have no right to appeal from a decree distributing the funds in their hands,” and this has been consistently followed until the present day. Inasmuch, however, as it appears from the evidence that the F. S. Blaney, who is named among the heirs and distributees of this estate, is the same person as the executor, Frank Blaney, we consider the appeal as if made by him as a party interested.

The question is a very simple one, depending upon the facts as they appeared before the auditor: Was the note of R. D. Jennings, guaranteed by the decedent to the Oil Well Supply Company, paid, or were the payments made by Jennings applied to his general account with the said supply company, leaving the note, with the decedent’s guarantee thereon, unpaid?

The auditor found, upon an examination of the account of the supply company, that payments made by Jennings had been applied to his open account, and that -the note, with the decedent’s guarantee, was unpaid, and that it was entitled to the fund for distribution, which was less than the amount of the note. This finding was confirmed by the orphans’ court, which seems to have made a careful examination of the accounts. Under the well-known rule, therefore, that.the finding of an auditor, confirmed by the orphans’ court, as to a matter of fact, will not be disturbed, except upon manifest error, we would not be justified in setting aside this decree.

We are satisfied, however, that the president judge of the orphans’ court was entirely correct in holding that the Oil Well Supply Company had the right, in the absence of any application of payments by Jennings, to apply them upon his unsecured account, leaving the note, upon which the decedent was the guarantor, unpaid.

The general rule as to the application of payments by a creditor is stated in 3 P. & L. Dig. of Dec., column 4,432: "In the absence of an agreement or direction by the debtor to the contrary, the creditor has, in general, a right to appropriate a payment at his will. He may, therefore, appropriate it to the least secured debt.” And, at column 4,436: “Application by the court. In the absence of application of a payment by either debtor or creditor, the court will, as a general rule, apply the payment for the benefit of the creditor to the first or oldest debt; to the least secured debt; to interest first and then to the principal.”

In Richard’s Estate, 185 Pa. 155, the rule, as laid down in 2 Parsons on Contracts,* 634, was distinctly recognized: "Where an obligor makes a general payment to his obligee, to whom he is indebted, not only on the bond but otherwise, the surety of the obligor cannot require that the payment should be applied to the bond, unless aided by circumstances which show only such application was intended by the obligor.” This case was affirmed in a per curiam opinion, in which it is said: “So far as they are material to appellant’s contention, the learned judge’s findings of fact are sustained by the evidence, and his conclusions, based on the controlling facts thus established, are substantially correct.”

The same may be said here. We find nothing in the record which would justify a reversal of the distribution, as made by the auditor and confirmed by the court.

Decree affirmed and appeal dismissed at the costs of the appellant.


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    Allegheny County Light Company v. Shadyside Electric Light Company, Appellant.

      Electric light companies — Discrimination—Rates—Corporation.
    Where an electric light company offers to all of its customers a yearly contract at a reduced rate over the existing monthly contracts, and one of the customers refuses to sign the yearly contract, and continues to take gas, he is .bound to pay the monthly rate, if it appears that the company did not give the reduced rate to any other customer who had refused to sign the yearly contract.
    Argued April 30, 1908.
    Appeal, No. 171, April T., 1908, by defendant, from order of C. P. No. 2, Allegheny Co., April Term, 1907, No. 868, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Allegheny County Light Company v. Shadyside Electric Light Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      George L. Roberts, for appellant.
    The contract is illegal by reason of the conditions contained therein: Baily v. Fayette Gas-Fuel Co., 193 Pa. 175; Mercur v. Light, Heat & Power Co., 19 Pa. Superior Ct. 519; Hoehle v. Heating Co., 5 Pa. Superior Ct. 21; Donahue on Petroleum and Gas, 289.

      Specific performance of the contract cannot be enforced, because it lacks that mutuality which would entitle the plaintiff to enforce its performance specifically: Meason v. Kaine, 63 Pa. 335; Marble Co. v. Ripley, 77 U. S. 339; Eclipse Oil Co. v. Oil Co., 47 W. Va. 84 (34 S. E. Repr. 923); Philips v. Mining & Mfg. Co., 7 Phila. 619.
    The conditions in said contract are against public policy and therefore void, and the contract is not enforceable: Hughes v. Railroad Co., 202 Pa. 222.
    The plaintiff is only entitled to recover, in this action, from the defendant, the market value of electricity furnished from October 1, 1906, to February 12, 1907, that is, the price at which it furnished electricity to its other patrons: Rockland Water Co. v. Adams, 84 Me. 472 (24 Atl. Repr. 840); Coy v. Gas Co., 146 Ind. 655 (46 N. E. Repr. 17); Shepard v. Gas Light Co., 6 Wis. 539.

      David A. Reed, with him Reed, Smith, Shaw & Beal, for appellee.
    We sue for the contract price of electricity sold and delivered — nothing more. The price, the sale, the delivery are admitted. The contract is wholly executed by appellee. It is too late now to raise the objection of want of mutuality: Grove v. Hodges, 55 Pa. 504; Mississippi Glass Co. v. Franzen, 143 Fed. Repr. 501; Green v. Richards, 23 N. J. Eq. 32, 35; Wheeler & Wilson Mfg. Co. v. Lyon, 71 Fed. Repr. 374.
    July 15, 1908:
   Opinion by

Beaver, J.,

February 14, 1903, the plaintiff and the defendant entered into a contract “subject to the rules and regulations printed on the back thereof” for furnishing electricity for 500 16 C. P. lamps or the equivalent thereof. The defendant, the consumer, agreed on its part “to use not more than 500 16 C. P. lamps (or the equivalent thereof) at any one time during the term of one year from the time at which the connection is made, and to pay therefor on or before 10 days from the date of bill rendered, at the rate of twenty cents for each thousand Watt hours of electricity furnished during the preceding month, but in case the electricity furnished in any month amounts to less than fifty dollars, the said consumer 'agrees to pay the sum of fifty dollars net for any such month. When the electricity furnished in any one month is equal to or exceeds the sum of fifty dollars, a discount of 30 per cent will be allowed thereon, if paid on or before 10 days from the date of bill rendered.” It was further provided that: “This contract shall continue iq force after the expiration of the term named, until either party shall give 30 days’ notice in writing of a desire to terminate the same, at the expiration of which time this contract shall be terminated.”

Among the rules and regulations printed on the back of this contract, No. 4 stipulates that, “The Allegheny County Light Company reserves the right to shut off the supply of electricity, without notice, for any of the following reasons: 1st, for repairs; 2d, for want of supply; 3d, for non-payment of any bill when due.” And in No. 5: “In case the supply of electricity should fail, whether from natural causes or accident in any way, this Company shall not be liable for damages by reason of such failure, nor shall it be liable, in any event for damages to person or property arising, accruing or resulting from the use of electricity.”

The defendant does not deny that electricity was furnished, in accordance with the provisions of this contract, between November 9, 1906, and February 12, 1907.

On August 27, 1906, the plaintiff addressed a letter to the customers of the Allegheny County Light Company, offering to reduce the net price charged responsible consumers from fourteen cents per 1,000 Watt hours with a discount of two cents per 1,000 Watt hours on bills paid on or before the ten days from the date hereof, inclosing a copy of contract, with the information that the signing and return of the same “will give you the benefit of the new rate and will cancel your old contract on your first meter reading after October 1st;” with the further information that “The necessity of accepting this reduced rate at once is urgent, as billings will be made in absolute accord with the contracts in force after October 1st, 1906.” It is admitted that the defendant neglected or refused to sign the new contract.

The charge, for which recovery is sought here, is for light furnished under the contract set forth in the plaintiff’s statement from November 9, 1906, which was subsequent to the date at which the new rate went into effect, so far as those who signed new contracts for a year were concerned, to February 12, 1907.

As has ordinarily been held, the plaintiff could not give undue or unreasonable preference or advantage to, or make unfair discrimination among, its customers, where the conditions are like and circumstances similar: Mercur v. Media Electric Light, Heat & Power Co., 19 Pa. Superior Ct. 519.

The contract offered by the plaintiff to its consumers to furnish light at a reduced rate was based upon the express .condition that “The term of this contract shall not be for a shorter period than one year from date of connection, except, that, should the customer remove from the premises, notice in writing, thirty days in advance shall be given the Company, when the contract shall be terminated.”

For reasons of its own, not disclosed, the defendant company refused to, or at least did not sign, the new contract, and it is not alleged that the reduced price was given to any others who neglected or refused to do so.

The plaintiff evidently sought to secure regular customers for a year, whether for the purpose of a steady market for their light which would justify enlargement or not, is not material. The offer of a like price, upon like conditions, was made to all of its customers.

The conditions of the new contract seem to us to be entirely reasonable and it was only necessary for the defendant to comply with them, in order to secure the rate offered to all customers complying therewith. Failing to comply with these conditions, what was the status of the defendant? Surely, as held by the court below, that which arose under the contract existing between the plaintiff and defendant, under which the light, recovery for the price of which is sought, had been furnished.

This is not the case of an attempt to avoid specific performance or to set aside a contract, because of lack of mutuality or unreasonable conditions which are against public policy. It is the case where the plaintiff has furnished the commodity agreed to be furnished at a fixed price under a definite contract with the defendant which has accepted the benefits of the contract and profited thereby. We see no lack of mutuality in the contract. If the defendant Was dissatisfied with it, application could have been made to the court to set it aside for the reasons now advanced, or at the end of the year it could have terminated it, as could the plaintiff, by thirty days’ notice. It did neither. It accepted the benefits of the contract and now seeks to avoid its liability, on the ground of a lack of mutuality and because of certain waivers contained therein, which are alleged to be against public policy.

Taking the facts as set forth in the statement and in the supplemental affidavit of defense, which contains the substance of the defendant’s allegations, we see no discrimination against the defendant. It was placed undeniably upon the same basis, so far as the new contract was concerned, as were all other consumers. There is no allegation that any consumer who refused to sign the new contract was granted any better terms than are sought to be enforced in the present suit.

There is no lack of consideration. The plaintiff agreed to sell to the defendant a merchandise commodity, for which the defendant agreed to pay a certain price. The commodity was actually furnished. The price should, therefore, be paid, unless good reason be shown to the contrary. There is no lack of mutuality in the contract, so far as we can discover. Either party could terminate it upon the same terms. Both were bound by it, so long as it existed by the terms of its own limitation.

Our attention is called to the cases in which it has been held that liability for the negligence of a common carrier cannot be waived by a passenger or transporter of goods, wares and merchandise. There is, in rule 5, heretofore quoted, a provision that “This Company shall not be liable for damages, by reason of such failure (namely, to supply electricity, whether from natural causes or accident in any way) nor shall it be liable, in any event for damages to person or property arising, accruing or resulting from the use of electricity.” We are not now considering the question as to whether or not the company would be liable for any negligence of its own, under this clause, and even if it were to be held that this clause in the contract was inoperative, because against public policy, we cannot see that it avoids the obligation of the defendant to pay for the electricity actually furnished by the plaintiff and consumed by it.

On the whole case, as presented, notwithstanding the earnest and elaborate argument of the appellant, we are all convinced that the court below properly disposed of this case in entering judgment for want of a sufficient affidavit of defense.

Judgment affirmed.


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    First National Bank of Gallitzin, Appellant, v. McNeelis.

      Contract — Assignment of bonds — Payment—Collateral security.

    Whether an assignment of bonds is in payment or as collateral security is a question of intention, depending upon the testimony in the particular case. In the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of the debt, in whole or in part, the law presumes that they were assigned only as collateral. The duty of establishing the contrary is affirmative and it rests upon the debtor. If he fails to perform the duty, the law makes a positive inference that the assignment is only as collateral security, and that inference is substantial evidence upon which the creditor may rely. The circumstance that the assignment of the security is absolute in form, is of no consequence on the question of interest, because the assignment simply operates to transfer the title.
    Argued May 4, 1908.
    Appeal, No. 183, April T., 1908, by plaintiff, from judgment of C. P. Cambria Co., Sept. T., 1906, No. 343, on verdict for defendant in case of The First National Bank of Gallitzin v. E. T. McNeelis.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.

      Assumpsit on a draft. Before O’Connor, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were in refusing binding instructions for plaintiff.

      Harvey Boland, with him J. W. Leech and Evans & Evans, for appellant.
    The circumstance that the assignment of the security is absolute in form is of no consequence on the question of intention, because the assignment simply operates to transfer the title: Eby v. Hoopes, 1 Penny. 175.

      M. D. Kitted, with him Philip N. Shettig, for appellee.—
    Whether an assignment is absolute, or merely a collateral security for the performance of an agreement by the assignor is a question of fact dependent on attending circumstances, and proper for submission to the jury: Fryer v. Rishel, 1 Walker, 470; Knox v. Moatz, 15 Pa. 74.
    Where a written assignment of a chose in action by a debtor to his creditor is silent as to whether it was made in payment of the debt, or not, parol evidence is admissible to show that it was as collateral security merely: Leas v. James, 10 S. & R. 307.
    July 15, 1908:
   Opinion by.

Beaver, J.,

Samuel R. Bullock, being indebted to the plaintiff in a large amount by overdrafts, cash items, notes, checks, drafts, etc., the amount being apparently undetermined, was met by the representatives of the bank at Altoona and, as a result of the conference, the following agreement was made:

“This article of agreement made and concluded this seventh day of January, 1905, by and between Sam. R. Bullock and The First National Bank of Gallitzin, that the said Sam’l. R. Bullock, the said first party hereby named, is to deliver to the Hanover National Bank of the city of New York, fifty thousand dollars worth of bonds of The Altamonte Water Supply Co. bonds. The same to be delivered to Hanover National Bank of New York in fee simple for the account of The First National Bank of Gallitzin, and for value received I hereby acknowledge to have received one dollar ($1) in hand paid, same being in full payment of same. It is also further agreed that on the payment of fifteen thousand dollars to the said Gallitzin First National Bank, that the said fifty thousand dollars worth of Altamonte Water Supply Co. bonds are to be returned to the said Sam’l. Bullock. As payments are made to the bank, the bonds are to be returned pro rata. Witness my hand and seal this seventh day of January a. d. 1905.
Attest:
“Sam’l. R. Bullock [Seal].
“C. Delafield
“D. P. Hudson.”

The principal question arising in this case is the legal construction to be given to this paper. Were the bonds to be delivered and accepted by the plaintiff bank as actual payment of the indebtedness of Bullock, or were they given as collateral security?

Among the drafts in the hands of the bank at the time of this settlement was one drawn by Bullock upon the defendant, accepted by the latter. It was not then due, and later in the month, namely, January 17, 1905, Bullock drew his draft upon the defendant for the sum of $400, admittedly to take up a draft for like amount maturing on that day. The draft was accepted by the defendant and, as the statement was amended at the trial, constitutes the only demand of the plaintiff against the defendant, although the statement, as originally filed, included two other drafts, drawn by Bullock upon, and accepted by, the defendant.

The understanding of Bullock and the bank as to the nature of the agreement made at Altoona and above quoted is shown by a subsequent transaction which took place on January 26, 1905, resulting in the giving of a judgment note by Bullock to the, representative of the bank for the sum of $15,000, upon which a judgment was entered in the court of common pleas of Cambria county. The consideration for this judgment' is shown by a receipt or certificate given by one J. R. Smith, who was the representative of the bank, as follows:

“Greensburg, Pa., Jan. 26th, 1905.'
“This is to certify that I have taken from Samuel R. Bullock, in trust for the use of the First National Bank of Gallitzin, Pa., a judgment note of even date herewith, in the sum of fifteen thousand dollars, conditioned for the payment of all notes, drafts, checks or other papers now held by the said First National Bank, in which the said Samuel R. Bullock is maker, endorser or in any other way liable to the said First National Bank, and upon payment to be made to the said bank of all his liabilities to the said bank whether upon the notes, checks, drafts or in any other way, then this judgment note or judgment entered thereon shall be considered paid and satisfied.
(Signed) “J. R. Smith.
“I hereby certify that the above judgment note was given on the terms set forth in the foregoing certificate.
(Signed) “ Sam’l. R. Bullock.”

As we construe the agreement entered into by. the representatives of the bank and Bullock at Altoona, the bonds of the Altamonte Water Supply Company, were to be delivered to' the Hanover National Bank of New York for the account-.of the First National Bank of Gallitzin simply as security for the indebtedness of Bullock. The words “fee simple” in our. view do not imply that the bonds-%ere to- be an actual' payment of the indebtedness of Bullock to the bank,, but that they were to be clear of claims of all other persons. • The subsequent part of the agreement, it seems to us, makes this plain: “It is also further agreed that, on the payment of fifteteri thousand dollars to the said Gallitzin First National Bank,’ that the said fifty thousand dollars worth of Altámonte Water Supply Co. bonds are to be returned to the said Samuel R. Bullock.' As payments are made to the bank, the bonds ,are to be returned pro rata.” ■

That this agreement was so.understood by the’parties, appears, it seems to us, very clear from the subsequent' dealings between them. The McNeelis draft, which is the subject of this suit, was included in the settlement at Altoona, and yet on the seventeenth of the same month, ten days after the settlement, a new draft is drawn by Bullock upon McNeelis and accepted by him to lift the draft which, if the delivery of the bonds was an absolute payment, had been paid.

If the delivery of the bonds was intended to be and accepted by the bank as payment, why the judgment note made on January 26, nearly twenty days after the alleged settlement at Altoona, under the terms and conditions set forth in the certificate or receipt above quoted, admittedly collateral security for the same indebtedness?

It is very clear, both from the contents of the papers themselves, and from the understanding of 'the parties, as indicated by the transactions which followed, that the bonds were delivered and accepted as collateral security, to be returned to Bullock when his indebtedness to the bank was paid, or pro rata as it was paid.

The Altoona agreement was in writing. Its legal effect was for the court. Admitting that in the first part of the agreement the assignment of the Altamonte bonds would seem to be absolute,' the agreement, nevertheless, provides for their return, not for their resale or repurchase, and provides further for the payment of the sum of $15,000 as a debt not then paid. The court below, in construing this agreement, held that the assignment was absolute and contained an option on the part of Bullock to repurchase the bonds. We do not so construe it. The word “return” implies a redelivery, because of some right reserved. The provision for future payment would be meaningless, if the debt were paid by the delivery of the bonds. This seems to us to be the plain intent of the paper, irrespective of the presumption raised by the law in regard to the assignment of personal property under such circumstances. "Whether such assignment is in payment or as collateral security is certainly a question of intention, depending upon the testimony in the particular case. In the absence of evidence tending to show an intention to pay and receive the securities assigned as satisfaction of the debt, in whole or in part, the law presumes that they were assigned only as collateral. The duty of establishing the contrary is affirmative and it rests upon the debtor. If he fails to perform this duty, the laW makes a positive inference that the assignment is only as col- • lateral security, and that inference is substantial evidence upon which the creditor may rely.

“The circumstance that the assignment of the security is absolute in form is of no consequence on the question of intent, because the assignment simply operates to transfer the title:” Eby v. Hoopes, 1 Penny. 175.

We have here, then, first the presumption of law that the assignment was simply as collateral and not as payment. We have the Altoona agreement which upon its face, as we construe it, in providing for the return or the return pro rata as payment is made, is indicative, first, of the right to reclaim, and, secondly, that payment was not intended. Parol testimony on the part of Bullock, as to the intention, cannot contradict this paper. In addition, we have what is equivalent to Bullock’s written declarations as to the effect of the assignment, first in his subsequently drawing the draft upon McNeelis and giving the additional collateral in the judgment note delivered to Smith, as the representative of the bank, at Greensburg, later in the month. This evidence is so overwhelming and conclusive in its character that the parol testimony of Bullock as to what the intention was cannot be permitted to overcome it, contradicting as it does the paper under which the bonds were delivered and being entirely inconsistent with his subsequent written statement. Whether or not this should have been received is not raised by any of the specifications of error and is not, therefore, considered, but certainly no verdict should be allowed to stand in the face of the Altoona agreement itself and of the manifest intention of the parties, as shown by the subsequent transactions above referred to, which are entirely inconsistent with any intention to use the bonds delivered to the Hanover National Bank as payment or of the plaintiff bank to receive them as such.

It is unnecessary to discuss the question further, inasmuch as this practically determines the entire question involved.

Judgment reversed, motion for judgment notwithstanding the verdict reinstated and, Upon the consideration of the whole record, judgment is now entered for the plaintiff, n. o. v.