author: Rice P. J.,

text:
    Joseph H. Strause v. Elise Braunreuter, Appellant.

      Evidence — Act of 1887 — Incompetent loilness — Interest or policy of the law.

    No interest or policy of the law makes any person an incompetent witness in any civil case or proceeding unless he is shown to come within one of the specified exceptions of the Act of May 23, 1887, P. L. 158.

      Evidence — Exception under clause (e) of act of 1887.
    Where the estate of a decedent may be interested in the question being tried but not in the immediate result of the suit there is lacking one of the essentials necessary to bring the case within the exception designated by clause (e) of the act of 1887.

      Evidence — Competency of widow as to transactions of husband.

    The wife, alter the death of the husband, is competent to prove facts coming to her knowledge from other sources, and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband. She is a competent witness on a suit against her alone on a note signed by herself and her husband, to show that she was a mere surety on the note.
    Argued March 11, 1897.
    Appeal, No. 22, March T., 1897, by defendant, from judgment of C. P. Adams Co., Aug. T., 1895, No. 87, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, OiiLADYand Smith, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Swope, P. J.
    Elias Adler, the representative of the plaintiff, was applied to in 1894 by Adam Braunreuter for a loan. The loan was made, said Adler delivering the money and obtaining note therefor. The following is a copy of note which was given said Alder for the plaintiff:
    Gettysburg, Pa., Sept. 17, 1894.
    On demand after date we promise to pay to the order of Mr. Jos. PI. Strause, Manager, Seven hundred and fifty dollars, value received.
    A. Braunreuter.
    E. Braunreuter.
    Adam Braunreuter and Elise Braunreuter were at that time husband and wife. Action of assumpsit was brought upon this note by the plaintiff on May 24,1895, against Adam Braunreuter and Elise Braunreuter. Elise Braunreuter filed an affidavit of defense and pleas of nonassumpsit and coverture to said action. Adam Braunreuter died August 2, 1895, and his estate was not made in any way whatever, a party defendant to the action. The plaintiff proceeded to trial on the issue between himself and Elise Braunreuter, and the jury were sworn to try the issue between Joseph Strause, manager, plaintiff and Elise Braunreuter, defendant, both being living parties to the issue.
    Upon the trial the defendant offered to go on witness stand to prove facts occurring at the giving of the note in the presence of Elias Adler, the representative of the plaintiff, to establish the fact that the note concerned the business of her husband and no business of hers; that there was no consideration moving to her. That she signed the note as bail for her husband, and she so signed the note at the request or command of her husband in the presence of said Adler, the representative of the plaintiff. The court refused to allow the defendant to so testify as incompetent under section 5, clause E, of act of 1887. To this ruling exception was taken by the defendant. [1]
    The defendant then called to witness stand, as upon cross-examination, Elias Adler. This witness is alleged to have made many conflicting and contradictory statements. After this witness retired defendant offered to testify to what occurred between her and Adler, confining her testimony to matters testified to by Adler. The court refused to allow defendant to testify. To this ruling exception was taken by the defendant. [2]
    Defendant asked that the facts be passed upon by the jury, upon the testimony of Adler, whether defendant was security or not upon the note in suit, by reason of the conflicting and contradictory statements of the witness. This was refused by the court and the jury instructed by the court to find for the plaintiff. [3]
    Verdict and judgment for plaintiff for $773.85. Defendant appealed.

      Errors assigned were (1) in refusing to allow defendant to testify; (2) after Elias Adler had testified in not permitting defezidant to testify izi rebuttal to all facts testified to by Adler as occurrizig betweezr defezidazzt azzd said Elias Adler; (3) in taking the facts from the jury and directing a verdict for the plaizitiff.

      Wm. Me Clean, with him Wm. A. Mo Clean, for appellant.—
    To exclude a witness on the ground of izrterest it is ziecessary he should have a vested interest, zaot izi the question, but in the evezits of the suit: Dickson v. McGraw, 151 Pa. 98.
    Brauzireuter was not a party to the above action, had no interest that the judgznezitin the cause would operate upozi: Spott’s Est., 156 Pa. 281; Carpenter v. Ins. Co., 161 Pa. 9; Bank v. Henning, 171 Pa. 399; Trymby, Hunt & Co. v. Andress, 175 Pa. 6.
    The defezrdant was a fully competezrt witness to testify as to what took place between herself azid Adler, the representative of the plaintiff: Jackson v. Paine, 114 Pa. 67; Brubaker v. Taylor, 76 Pa. 83.
    Adler havizig testified without objection whezi called for crossexaznination and re-examizied by plaintiff, becazne as originally called on his own behalf, azid defezidant, if an incompetent witness, was made competezit by Act of June 11, 1891, P. L. 287, to cozitradict declarations testified to by Adler izi alleged conversation with her: Kauss v. Rohner, 172 Pa. 488; Thomas v. Miller, 165 Pa. 216.

      April 12, 1897:
    There was manifest error in not submitting the determination of the question of fact to the jury: Bank v. Donaldson, 6 Pa. 179; Sidwell v. Evans, 1 P. & W. 386.

      Win. McSherry, Jr., for appellee.
    — The defendant’s interest was adverse to her husband and she is incompetent under act of 1887. She was incompetent under the law prior to 1887: Yeager v. Weaver, 64 Pa. 425.
    This transaction being similar to a partnership, the surviving partner cannot testify: Standbridge v. Catanach, 83 Pa. 368.
    The defendant could not testify against her husband if he were alive : Johnson v. Watson, 157 Pa. 454, much less can .she testify now: Irwin’s Appeal, 160 Pa. 82, especially since her testimony was to relieve herself from a portion of the claim in controversy and burden her husband’s estate: Kyte v. Foran, 167 Pa. 252.
    It matters nothing whether the estate is solvent or not: Alcorn v. Cook, 101 Pa. 209.
    She is adverse to her husband’s estate: Bitner v. Boone, 128 Pa. 567.
    The calling of Adler by defendant below did not make defendant a competent witness : Roth’s Est., 150 Pa. 261.
    The calling of the living witness must be by the party representing the rights of the -deceased. Calling such witness by defendant did not make her competent: Cake v. Cake, 162 Pa. 584; Krumrine v. Grenoble, 165 Pa. 98; Thomas v. Miller, 165 Pa. 216.
    Defendant having called Adler, cannot treat him as hostile and cross-examine him and then object to his evidence and try to contradict him by this defendant: Fisher v. Hart, 149 Pa. 235, but having called him as for cross-examination, he became competent for all purposes: Boyd v. Conshohocken Mills, 149 Pa. 363.
   Opinion by

Rice P. J.,

No interest or policy of law now makes any person an incompetent witness in any civil case or proceeding unless he is shown to come within one of the specified exceptions, and the only exceptions we are here called upon to consider are those contained in clauses (a) and (e) of section 5 of the Act of May 23, 1887, P. L. 158. By clause (e) the disqualification is made to depend not only on the fact of the witness being a surviving or remaining party, to the thing or contract in action but also on the fact of his having an interest adverse to the right of the deceased party which right has passed by his own act or the act of the law to a party on the record who represents his interest in the subject in controversy. The deceased party to the contract in action was Adam Braunreuter but his right had not passed to a party on the record who represented his interest. The issue was between Joseph H. Strause and Elise Braunreuter. The legal representative of Adam Braunreuter was not a party to the record, and the testimony which the defendant proposed to give related to matters occurring between her and the agent of the living plaintiff, and concerning which he had testified fully at the instance of the plaintiff. The estate of Adam Braunreuter may have been interested in the question being tried, but not in the immediate result of the suit. There is wanting, therefore, one of the essentials necessary to bring the case within the exception. The language of the clause is plain and unambiguous, and there is no justification for construction whereby it shall be extended to cases not expressly excepted from the general rule of competency. But even if there were room for construction we think the decision in Bank v. Henning, 171 Pa. 899 would be conclusive of.the question for determination.

Nor was she an incompetent witness under clause (c). What she proposed to testify to was in no sense a confidential communication, and the common law rule which prevents the husband or wife from divulging in testimony such communications after the death of the other does not apply. The wife after the death of the husband is competent to prove facts coming to her knowledge from other sources, and not by means of her situation as a wife, notwithstanding they related to the transactions of her husband: 1 Gr. Ev. sec. 338, (15th ed.); Cornell v. Vanartsdalen, 4 Pa. 364; Peiffer v. Lytle, 58 Pa. 386; Robb’s Appeal, 98 Pa. 501. The defendant was a competent witness, and her testimony going to show that she was a mere surety on the note should have been received. The first assignment of error being sustained it is unnecessary to discuss the others.

The judgment-is reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    Townsend W. Knowles, Appellant, v. Mary Jacobs.

      Appeals — Form of feigned issue not reviewable.

    A feigned issue is in form a complete action, and whether it shall be granted is 1 argely a matter of discretion with the court. It is to be molded as the court dictates, and the mode in which this is done is not the subject of a writ of error.

      Feigned issue — Evidence must conform to the pleadings.

    An insurance company being liable on a policy of insurance and the money having been paid into court an issue was framed as between plaintiff and defendant, each claiming the insurance money, to determine the right to it. Held, that evidence to prove that plaintiff and defendant agreed that each party should have one half the insurance was properly rejected under the pleadings and that, no further evidence being offered, the court properly instructed the jury that the offer failed to show “ that the plaintiff is entitled to the insurance money” and that there was no error in directing a verdict for the defendant who was the nominated beneficiary under the policy.
    Argued Jan. 18, 1897.
    Appeal, No. 41, Jan. T., 1897, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1896, No. 280, on verdict for defendant.
    Before Rice, P. J. Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Feigned issue to determine tbe right to the proceeds of two policies of insurance. Before Gunster, J.
    Tire facts sufficiently appear in the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      JErrors assigned were (1) in refusing to admit the testimony of Mrs. Elsie Knowles, called by the plaintiff on direct examination under the following offer:
    By Mr. Vosburg: We offer to prove by the witness on the stand that Alanson Thomas had been living with her husband and herself at their hotel for some time prior to his death, and that he died there largely indebted to them; that prior to his death he had given his premium receipt book in which the payment of premiums on these policies were entered and that Mr. Knowles, her husband, had paid certain premiums on these policies; that immediately after the death, Mary Jacobs the defendant, came to their place and that she and T. W. Knowles had a talk about to whom the insurance should go, each party claiming they were entitled to it; after some discussion Mary Jacobs proposed that each party should have one half the insurance, to which Mr. Knowles agreed. To be followed by evidence of Mr. Knowles showing he brought suit in pursuance of said agreement and so notified Mary Jacobs, the defendant.
    By Mr. Davis: The first part of the offer is objected to as immaterial, the general character is not within the terms of the policy by payment of which the insurance company could discharge its contract. In regard to the second part of the offer we object to it because no such promise is declared upon in the déclaration, and the appropriate action to enforce such promise is by an action of assumpsit. The whole offer is immaterial, irrelevant and incompetent.
    By the Court: The objections are sustained.
    (2) In directing the jury to find a verdict for the defendant, as follows: “ I direct you to render a verdict in favor of the defendant.”

      A. A. Vosburg, with him W. ¡S. KuZslander, for appellant.—
    Under the terms of the policy the plaintiff was a beneficiary because a beneficiary is a person for whose benefit the insurance was effected: 2 May on Ins., 888.
    The plaintiff, being a creditor, is therefore a lawful beneficiary. Corson’s Appeal, 113 Pa. 438.
    The Act of May 10, 1871, P. L. 265, gives the court power in any stage of the proceedings to permit an amendment or change in form of action, if the same shall be necessary for a proper decision of the cause upon its merits. This act certainly gave the court power to so amend the issue as to do justice between the plaintiff and defendant, even though it became necessary to change the form of action, and this amendment could be made at the trial: Taylor v. Hanlon, 103 Pa. 504.

      J. P. Kelly, with him J. Alton Davis and John P. Edwards, for appellee.
    — In the present case there was no offer to show an indebtedness existing at the time the policies were issued, or an indebtedness equal to the amount in controversy, or any assignment of the policies to Knowles or any appropriation by Thomas, the insured, of the amount of these policies to Knowles.
    April 12, 1897:
    It has never been held that a mere creditor could by suit compel payment, and thus deprive a widow of her exemption, or take from preferred creditors a fund that would be first applied to payment of funeral expenses, or for medical services during the last sickness.
    The policies were never in the possession of Knowles, the plaintiff, but were in the possession of Mary Jacobs. They were produced by her on the trial in pursuance of notice from Knowles.
   Opinion by

Smith, J.,

The Metropolitan Life Insurance Company issued two policies on the life of Alanson Thomas, payable to the “ executor or administrator, husband or wife, or any relation by blood, or lawful beneficiary of the insured.” In the application for the insurance, Mary Jacobs was named as the beneficiary, and the policies were delivered to and retained by her.

Upon the decease of Thomas, both the plaintiff and the defendant claimed the insurance. The insurance company declined to pay either, and Knowles brought suit. _ The company subsequently paid the money into court, and an issue was framed, between Knowles as plaintiff and Mary Jacobs as defendant, to determine the right to it.

On trial, the plaintiff offered to prove that Thomas died largely indebted to himself and wife; “ that prior to his death he had given his premium receipt book, in which the payment of premiums was.entered, and that Knowles had paid certain premiums on these policies ; ” that after the death of Thomas the plaintiff and defendant agreed “ that each party should have one half the insurance; ” and that Knowles brought suit in pursuance of said agreement, and so notified the defendant. This offer was objected to, as incompetent under the pleadings, and the objection was sustained. No further evidence being offered, the court instructed the jury” that the offers here fail to show that Mr. Knowles is entitled to the insurance money,” and directed a verdict for the defendant. These rulings are assigned for error.

The policies are by their terms payable to “ any lawful beneficiary of the insured.” In the application which formed the basis of the insurance, Mary Jacobs was designated as beneficiary. Assuming, as we may in the absence of any suggestion to the contrary, that she had an insurable interest, she must be deemed a lawful beneficiary. She has therefore a prima facie right to the insurance money. Whether the insured, having named her as beneficiary, could afterward, without her consent, substitute another person, may well be questioned. We are not, however, called on to determine this. The insured never did substitute any other person. The indebtedness on his part, averred in the offer, was doubtless sufficient to give the plaintiff an insurable interest in his life, and to sustain an assignment of the policies as a security. But possession of the premium receipt book without more was neither in fact nor law an assignment of the policies. For aught that appears he may have held it for safe keeping. Knowles may have been entitled to reimbursement for premiums paid by him, but such payment gave him no interest in the policies. The relation of debtor and creditor does not of itself give the creditor an interest in the debtor’s life insurance; that requires an agreement with those having an interest in the policy.

In his action against the insurance company the plaintiff sought to recover the proceeds of both policies as creditor and beneficiary, and upon this ground (denied by the defendant) the feigned issue was directed. It is averred in the declaration, that all the money due from the company on the policies belongs to the plaintiff, and, presumably, he claimed it under the insurance contract. The whole tenor of the declaration is to this effect, and the issue was so made up. The proof offered did not tend to sustain the allegata in the issue, and was therefore inadmissible. It referred exclusively to an alleged parol agreement with the defendant, for an equal division of the insurance money. There was no attempt to show that Knowles was “ the executor or administrator, or relation by blood or a lawful beneficiary of the insured,” or that his possession of the premium book was under an agreement by which be acquired an interest, legal or equitable, in either the book or the insurance. Under the pleadings the plaintiff’s claim was based on averred contractual rights with the insurance company; under the offer this claim was ignored and an alleged contract with the defendant was sought to be substituted.

The inquiry was not whether the parties had agreed to divide the money, but which was entitled to the whole. This was the single question for determination under the issue; and no other could be tried or substituted by the plaintiff.

A feigned issue is in form a complete action, and whether it shall be granted is largely a matter of discretion with the court. It is to be molded as the court dictates, and the mode in which this is done is not tire subject of a writ of error: Sheetz’s Appeal, 35 Pa. 88; Moore v. Dunn, 147 Pa. 359; Kellogg v. Krauser, 14 S. & R. 137; Neff v. Barr, 14 S. & R. 166; Baker v. Williamson, 2 Pa. 116; Brown v. Parkinson, 56 Pa. 336; Cake v. Cake, 106 Pa. 472. While these issues are in an especial manner within the equitable powers of the court (Wilson v. Wilson, 142 Pa. 572) the proceedings under them are well defined. The old and approved form of a count upon a wager, in which the precise question to be tried is stated, and which is settled by the court, if the parties cannot agree, is best adapted to meet the wide range of questions made the subjects of them: Clark v. Douglass, 62 Pa. 408. Each fact in dispute constitutes the subject of a separate issue, and although several issues if not complex may, in the discretion of the court, be tried together before the same jury, there must- be a distinct finding upon each issue: Cobb v. Burns, 61 Pa. 278. And when these issues are made up, neither the judge before whom they are tried, nor the appellate court upon a writ of error to the judgment, have any right to modify them, or consider what they ought to have been: Sheetz v. Hanbest’s Executors, 81 Pa. 100. The inquiry must be confined to the precise question put in issue, as that is the sole matter for consideration: White v. Rech, 171 Pa. 82. It has also been held that a claimant in an issue, under the sheriffs’ interpleader act, who asserts an absolute title to the property-levied upon, will not be permitted to show a limited interest on the trial: Meyers v. Prentzell, 33 Pa. 482; Bissell v. Steel, 67 Pa. 443. It follows from these authorities that, as the record stood, the learned trial judge was clearly right in excluding the plaintiff’s offer of evidence.

The argument that the court should have permitted the plaintiff to amend his declaration cannot prevail here. Aside from the fact that these issues are within the discretion of the court framing them, it is to be observed that the court accepted the issue as submitted by the plaintiff’s counsel, in form and in substance. If it was desired to cover facts not embraced in the pleadings the court certainly was not responsible for their exclusion. Furthermore no exception was taken to the refusal of the court below to allow the amendment, nor is it made the subject of an assignment of error here. Under the amended equity rules exceptions are necessary in equity proceedings in the same manner as in actions at law.

It may also be observed that the alleged agreement with the defendant seems to have been without consideration on her part. It does not fall within the principles relating to the compromise of a doubtful right. The doubt, in such a case, must arise from' an uncertainty respecting the facts on which the rights of the parties depend. Here there was no uncertainty; all the facts were undisputed, and there is no question as to their legal effect. Thus there was no doubtful right to compromise. Nor is it correct to say that the plaintiff brought suit in pursuance of the alleged agreement. The record shows that suit was brought for the full amount of the insurance in his own name and for his own use.

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


author: Orlady, J.,

text:
    Carrie Cobb, Executrix, and B. F. Killiam, Executor, etc., of Isaac W. Cobb, deceased, Appellants, v. Serephina Cobb, Executrix, etc., of E. S. H. Cobb, deceased.

      Evidence — Qualification of interested witness — Release of interest.

    Testimony of a witness otherwise clearly inadmissible on the ground of interest, is properly admissible after production of a release under seal absolutely relieving the estate of the decedent from all liability to the witness. The witness having been interrogated as to consideration and motive and the question of credibility being fairly left to the jury.
    Argued Jan. 18, 1897.
    Appeal, No. 38, Jan. T., 1897, by plaintiffs, from judgment of C. P. Lackawanna Co., April T., 1880, No. 716, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Issue framed on application made April 5, 1895, to open a judgment, entered on a judgment note, the note to stand as declaration with pleas of payment, payment with leave, etc., to which was added the plea of the statute of limitations. Before Archbald, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.

      Errors assigned were (1) In overruling objection of plaintiffs and admitting the evidence of the witness, Ada J odry, the objection and ruling being as follows:
    By the Court: Do I understand you have an objection as to competency ?
    By Mr. Wells: We have, yes, sir.
    By the Court: On the question of competency of Mrs. Jodry, the will of E. S. H. Cobb being produced shows that the balance of liis estate, after the right of dower to his widow, was left to his surviving children, share and share alike.
    By Mr. Hulslander; Counsel for defendant offer in evidence a release of her interest given by her to Serephina E. Cobb, and signed by her.
    By the Court: Without passing finally upon the question whether the assignment in this case is.not colorable, and therefore ineffectual to render the witness competent, I will receive the evidence which is sought to be proved by her, subject to a motion to strike it out subsequently, if it seems necessary.
    (2) In refusing to strike out the evidence of Mrs. Jodry.
    (3) In admitting in evidence the so-called release of Mrs. Jodry’s interest in her father’s estate against plaintiff’s objection.
    Release. — " Know all men by these presents, that I, Ada A. Jodry, of the City of Scranton, County of Lackawanna, and State of Pennsylvania, as well for and consideration of the sum of ten dollars, to me in hand paid by Serephina E. Cobb, of the City of Scranton, County of and state aforesaid, at and before the sealing and delivery thereof, the receipt whereof I do hereby acknowledge, as for divers other good causes and valuable com siderations, me thereunto specially moving, have remised, released, quitclaimed, and forever discharged and by these presents, for myself, my heirs, executors and administrators, do remise, release, quitclaim and forever discharge the estate of E. S. Id. Cobb, late of the county aforesaid, deceased, his heirs, executors, administrators, and every of them, in favor of the said Serephina E. Cobb, of and from all, and all manner of action and actions, cause and causes of actions, suits, debts, dues, sum and sums of money, accounts, bonds, bills, covenants, contracts, agreements, promises, judgments, executions, claims and demands, whatsoever, in law and equity or otherwise howsoever, which against the said estate of E. S. Id. Cobb, deceased, in favor of said Serephina E. Cobb, I ever had or now have, or which I, my heirs, executors or administrators hereafter can, shall, or may have for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents. In witness whereof, I have thereunto set my hand and seal, this 16th day of April, A. D. 1895. (Signed) Ada A. Jodry. (l. s.) ”
    (4) In admitting the evidence of Gertrude L. Flory against objection of plaintiffs.
    Objection: The counsel for the plaintiffs object to the competency of this witness; she is a party in interest in the estate of E. S. H. Cobb. •
    By the Court: I overrule the objection.
    (5) In the admission of the so-called release by Mrs. Flory in evidence. (The release being in form the same as that set out in the third assignment.)
    (6) In overruling plaintiff’s objection to the admission of evidence of Mrs. Gertrude L. Flory under offer of defendant.
    Offer: The counsel for the defendant offers to prove by the witness on the stand that sometime during the year 1879 she was present at a conversation between her father, E. S, H. Cobb, and her brother, I. W. Cobb; at this conversation an agreement to sell was made of the one half interest in a certain property owned by E. S. FI. Cobb, known as the mill property, for the consideration of $1,000, and Isaac W. Cobb then and there agreed as a part of the consideration of this transfer of real estate to pay the note of Butler Hamlin upon which judgment was entered at No. 716, April term, 1880; that she witnessed a deed whereby this transfer of real estate was made. .
    April 12, 1897:

      Thos. F. Wells, with him Chas. JR. Pitcher, for appellants.—
    Where releases are made, to relatives, in the progress of the case, when it is found that they cannot get on without the help of the testimony it is “ colorable ” and “ an assignment merely colorable shall not divest the title to make the plaintiff a witness : ” Post v. Avery, 5 W. & S. 509.
    If the assignee of a judgment become the purchaser of it in good faith, relying upon a certificate of “ no defense ” given by the defendant, there is an end of any defense by the latter for any reason: Scott’s Appeal, 123 Pa. 155.

      W. S. HJulslander and A. A. Voslmrg, for appellee.
    — Under the Act of May 23, 1887, P. L. 158, a witness otherwise incompetent may make himself competent by an assignment of his interest, and whether such assignment be in good faith is a question for the court; and the fact that the court permitted such a witness to be sworn is a determination by the court of the good faith of the assignment: Turner v. Warren, 160 Pa. 336; Heft v. Ogle, 127 Pa. 244; Warren v. Steer, 112 Pa. 634.
    Whether the release of the person’s interest is in good faith or not is a question for the court.
    The fact that the court permitted Mrs. Jodry and Mrs. Flory to be sworn was a determination by the court of the good faith of the releases: Turner v. Warren, 160 Pa. 336.
    The court said in discharging the rule, “Mrs. Jodry was a competent witness. Her interest under the will of her father, E. S. H. Cobb, was collateral merely, and her release was sufficient to qualify her, her expectation of further benefit, if any, being for the jury in passing upon the credibility of her testimony:” Cornell v. Van Artsdalen, 4 Pa. 364; Carter v. Trueman, 7 Pa. 315; Forrester v. Torrence, 64 Pa. 29; Heft v. Ogle, 127 Pa. 244.
   Opinion by

Orlady, J.,

On September 2,1871, E. S. H. Cobb gave to Butler Hamlin a judgment note for $533.21, payable one day after date, which amount was reduced by payments made at different times so as to leave a balance due thereon of $388, for which a judgment ■was entered April 3, 1880, to No. 716, April term, 1880.

On August 10, 1880, Butler Hamlin assigned this judgment to Isaac W. Cobb, a son of the defendant, and on the same day E. S. H. Cobb agreed in writing, “ that there is due unpaid on the above stated judgnient the sum of three hundred and ninety-six and 41/100 dollars and four and 25/100 dollars cost and interest from date, and that I have no set-off either legal or equitable against the same.”

An amicable scire facias was filed and judgment entered thereon to No. 504, April term, 1885, and a lilce judgment entered to No. 569, April term, 1890. January 14, 1895, the death of Isaac W. Cobb was suggested of record and the appellees became the legal plaintiffs.

The same day the executrix of E. S. H. Cobb was substituted on record for the defendant and presented her petition to the court, alleging that the debt represented by this judgment was full paid by E. S. H. Cobb to Isaac W. Cobb, and other matters of defense not important to the disposition of this case.

After a hearing, the judgment was opened and “ this issue awarded to be made up by the plaintiff declaring in assumpsit on the note and defendant pleading payment with leave thereto.”

On the trial a verdict was -returned for the defendant. A rule for a new trial was granted and discharged.

Fourteen assignments of error are presented for our consideration, but the ones affecting the competency of the defendant’s witnesses, Mrs. Jodry and Mrs. Flory, daughters of E. S. H. Cobb and sisters of Isaac W. Cobb, will control the judgment as entered on the verdict.

We do not have before us a copy of the will of E. S. H. Cobb to determine the exact interest of these witnesses but find it decided by the court, without exception or denial, that “ under their father’s will after payment of debts and the right of dower to the widow, the balance of his estate was left to his surviving children — share and share alike.”

When Mrs. Jodry, was offered as a witness by the defendant, objection was made to her competency; a release was exhibited to the court under objection, and to determine the good faith of the release the witness was interrogated by the learned trial judge, who held “without passing finally on the question whether the assignment in this ease was not colorable, and therefore ineffectual to render the witness competent, I will receive the evidence which is sought to be proved by her, subject to a motion to strike it out subsequently, if it seems necessary.”

The witness was examined at length, and at the conclusion of her cross-examination, counsel for appellees moved to strike out the evidence, which motion Avas overruled, an exception noted, and bill sealed. (1st, 2d, 3d and 4th assignments of error.) The Avibness was clearly incompetent without the release, and in accordance with the provisions of section 6, of Act of May 23, 1887, P. L. 158, the trial judge decided, as a preliminary question in favor of the good faith of the release or extinguishment of interest, to enable the witness to become fully competent, and refused to strike out the evidence, which action was fully Avarranted after inspection of the paper in connection Avith her testimony as to consideration and motive, but in submitting the case her credibility was fairly left to the jury: Turner v. Warren, 160 Pa. 336.

The fifth and sixth assignments relate to the testimony of Mrs. Flory, who was similarly situated as Mrs. Jodry, and her release in like form made her competent. The assignments from nine to fourteen inclusive would not determine the final judgment, and the facts were fairly submitted in a charge which presented the case fairly to the jury.

As stated by the court, “ unfortunately the original parties, Isaac and his father, are now both dead. No doubt their testimony AArould make all things clear to us, but after this long lapse of time and their departure from this life we have to search for the truth as best we may.”

The issue is between the members of a family and has developed the acerbities usual to such controversies.

The testimony of Mrs. Flory and Mrs. Jodry was of great weight, and with other witnesses fully justified the verdict.

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


author: Willard, J.,

text:
    Martha G. Boatwright v. The Chester & Media Electric Railway Company, Appellant.

      Negligence — Street railways — •Disorderly conduct of passengers — Measure of company's liability — Respondeat superior.

    A railway company is not liable for an accident which results from sudden noise and disorder on the part of a body of passengers, which disorder in the exercise of sound judgment and discretion, it was not obliged to anticipate or provide against. The doctrine of respondeat superior does not apply.

      Negligence — Street railways — Riotous conduct of passengers — Proximate cause— Question for jury.

    The sudden outburst of passengers on a trolley car frightened a well broken horse not afraid of such cars as usually conducted, and the horse ran away and upset the wagon. Held, That the failure or inability of the conductor or motorman to stop the unexpected demonstration was not such proximate cause of the injury as would render the railway company liable, and that it was error to leave to the jury the question whether the company’s employees permitted the passengers to indulge in such conduct as would frighten an ordinarily well broken horse.
    Argued, Nov. 19, 1896.
    Appeal, No. 139, Nov. T., 1896, by-defendants, from judgment of C. P., Delaware Co., Sept. T., 1895, No. 259, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Trespass for personal injuries. Before Clayton, P. J.
    The facts sufficiently appear in tlie opinion of the Superior Court.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed.

      Error assigned was, refusal of defendant’s first point, viz: “Under all the evidence in this case the verdict should be in favor of the defendants.” Answer: This point is negatived.

      W. B. Broomall, for appellant:
    — The right of a company to construct and operate its road along the street carries with it the right to do whatever is necessary for the successful operation of the road, so that the company is not liable for injuries caused iby horses becoming frightened at its cars unless it can be shown that the fright was caused by some unusual sight or sound which the company was negligent in creating: Hazel v. Railway Co., 132 Pa. 96: 23 Am. & Eng. Ency. of Law, 1031.
    The proximate cause of the fright of the horse in this case is the acts of the passengers, and the doctrine of proximate cause is especially applicable to accidents resulting from the fright of a horse: Railway Co. v. Taylor, 104 Pa. 306; Yingst v. Railway Co., 167 Pa. 438.
    It is submitted that there is no principle of the law which subjects a street railway company to liability to. a person on the highway for the disorderly conduct of its passengers.

      George T. Butler and William W. Porter, for appellee.
    — As to the question of negligence arising from the behavior of the motorman or driver of a car, see Railway Co. v. Mulhair, 6 W. N. C. 508; Johnson v. Railway, 160 Pa. 647; Wheelahan v. Traction Co., 150 Pa. 187; Railway Co. v. Steinhart, 2 Penny. 358.
    As to the question of noise made by the passengers on the cars, it is undoubtedly the law that a railroad company and likewise a surface railway company must exercise its rights with a considerable and prudent regard for the rights and safety of others, as has been decided in those cases where accidents have arisen from the negligent blowing of locomotive whistles; see Penna. R. Co. v. Horst, 110 Pa. 226; Phila. & Reading Ry. Co. v. Killips, 88 Pa. 405; P., W. & B. R. R. v. Stinger, 78 Pa. 226.
    In this case a horse was frightened by an unusual and terrifying noise, which passengers riding upon the defendant company’s cars were allowed to make while upon the public highway where at any moment teams might be expected to pass. The company has a right to run its cars along the road for the carrying of passengers, but it must do so with a proper regard for the safety of others. A railroad company has a right to blow its whistles; but a railroad company is responsible for the result of accidents by blowing its whistles at improper places, because there it is an unwarrantable act and is done in disregard of the safety of others.- Street car companies in carrying passengers along the public highway if they allow them to behave in a noisy and turbulent fashion which, from its unusual character, will probably result in alarming passing horses, are exercising their rights in a careless and negligent fashion, without regard to the safety of others, and are, therefore, liable for resulting injury.
    April 12, 1897:
    If the company had no control over the behavior of its passengers, this probably would not be the case; but as to that point the Supreme Court has already expressed itself, and has decided that a railroad company is responsible for an injury caused by the improper behavior of its passengers: Railroad Co. v. Pillow, 76 Pa. 510; Railroad Co. v. Hinds, 53 Pa. 512.
    Under these decisions the company’s employees, when they found the passengers were behaving in an improper manner and would not behave, could have stopped the cars and, if necessary, used force in putting the passengers off.
    It is shown by the evidence, particularly of Lizzie Brandt, that the unusual noise caused the horse to run away, and as in the ease of the improper sounding of a locomotive whistle, whereby accident was caused, that would be a sufficient proximate cause for the injury to render the company liable: Penna. R. R. Co. v. Barnett, 59 Pa. 259.
   Opinion by

Willard, J.,

A road known as the Providence Road runs north and south through the borough of Media; it is from thirty-five to forty feet wide. The appellant’s track over which its cars run, is located on the eastern side of the road. Its main route is between Chester and Media. About three hundred feet north of a steam railway track there is a switch or turnout leading from the Providence Road into the South Media road, and north of the point where the track begins to diverge, and one hundred and sixty feet distant is a blacksmith^ shop, fronting on the western side of the Providence Road. This shop extends back to the South Media road. Where the trolley car track crosses the steam railroad there is a bridge.

Between eight and nine o’clock on the evening of August 14, 1894, an excursion train of three cars in charge of a motorman and two conductors was moving northward over the Providence Road and turned into the switch connecting with the South Media road.

There was an excursion party of two hundred and twenty-five (225) persons in the cars. There was evidence that the cars were running fast and that the motorman was not looking up the Providence Road. There was also evidence that the cars were moving at their usual rate of speed, and that the motorman before and at the time of the accident had his eyes upon the track in front of him. There was also evidence that the passengers on the cars from the time they crossed the bridge to the place of the accident were blowing horns, hooting, screeching, screaming, singing, waving hats and flags. Tins evidence was denied by the motorman and one of the conductors, and by several passengers on the cars at the time. On the evening in question the appellee was, in company with Miss Lizzie Brandt, riding with her at her invitation and was moving along the eastern side of the Providence Road going south in a buggy drawn by a horse perfectly manageable on all ordinary occasions, accustomed to and in no way afraid of trolley cars. The evidence also discloses that Miss Brandt was accustomed to drive this horse and buggy both day and night, and for many months prior to this time had experienced no trouble in so doing. As she came to the blacksmith shop she heard the noise of the approaching excursion and stopped her horse at that point, waiting for the cars to pass. The allegation of the appellee is that the horse took fright at the noise of the approaching cars, became entirely unmanageable and darted in the direction of the approaching, car, running alongside of it until between the rear of the blacksmith shop and a telegraph pole the buggy collided with the car, was upset and the appellee seriously injured thereby.

The learned trial judge instructed the jury that there was not sufficient evidence of negligence on the part of the appellant by reason of the speed of the train or the conduct of the motorman in not looking in the right direction to sustain a verdict. On the question of the conduct of the excursionists the jury were instructed as follows, “ I say to you, as a matter of law, that if the company or its employees (for the company is liable for the conduct of its employees), did permit the passengers upon their cars to indulge in riotous conduct, to wave flags, to scream, to sing, to hallo and to blow horns, to such an extent as would frighten an ordinary well broken horse, then the company's liable; and that will be the simple question for you to decide.” There was a verdict for the plaintiff in the sum of 11,000.

The only error assigned is the refusal of the court below to give binding instructions to render a verdict for the defendant.

The precise question raised by this record has not-been passed upon by our Supreme Court.

As to the rights of the respective parties there is no question.. The appellee had a right to drive with her companion upon the road in question and she assumed no greater risk than any other person riding in a buggy drawn by a well-broken and trusty horse accustomed to trolley cars. She-had a perfect right to be upon this road and to drive upon it in an orderly manner. The appellant had an equal right to occupy the road with their cars and other, appliances necessary to carry out the end and purpose of their incorporation. They had the right to reasonably speed their cars in order to make such schedule time as public necessity and convenience demanded, and to make such noise and exhibit such lights as result from the ordinary running of electric motors and cars upon the public streets; and if, as a consequence thereof, horses are frightened and run away there can be no recovery for any damages sustained by reason thereof: Hazel v. Pass. Railway Co., 132 Pa. 96; Yingst v. Lebanon Street Railway Co., 167 Pa. 438.

The horse was frightened on account of unusual noises made by the passengers on the trolley cars. The injury was the result of the running away of the horse and the collision of the vehicle drawn by it with one of the cars. The proximate cause was the unusual noise of the passengers that frightened the horse. For this conduct of the passengers the jury was instructed that the appellant company was liable on the ground that the two conductors did not stop the noises of an excursion party of two hundred and twenty-five people, therefore the company was liable for the injury.

If the company deliberately loaded its cars with excursionists equipped with horns and flags, knowing they intended to wave flags and blow horns along the route, and thereby frighten horses lawfully upon the highway, for such conduct it might be held liable. Or if it knowingly permitted such demonstrations from time to time as a part of its business upon the road so as to become a nuisance and constant menace to persons driving vehicles upon the highway, they undoubtedly would be liable for the result of such nuisance and menace. But there are no such circumstances in this case.

The excursion party was taken upon the cars and each member of the party was a passenger entitled under his contract of carriage to be conveyed safely to his place of destination. There was no evidence that the company, its conductors or employees anticipated any unusual noise on the part of the passengers. Supplied with a motorman and two conductors the cars were running upon usual schedule time under proper 'employees to manage the cars and attend to the necessities of the passengers in them under all ordinary circumstances. The company was under no obligation to provide a police force in anticipation of riots. The evidence shows that when the cars were at the bridge, the passengers became nois3r and the horse was suddenly frightened by the noise, became unmanageable and ran awa3f. To say that under the facts of this case the failure or inability of the conductors or motorman to stop the noise while the cars were going from the bridge to the turnout was such proximate cause of the injury as to render the appellant liable, is carrying the doctrine of proximate cause beyond its legitimate limit. Under the facts in this case the persons who caused the noise that frightened the horse are alone responsible, and their neglect and misconduct under the circumstances cannot be imputed to the appellant.

The appellant is charged as a wrongdoer in causing the appellee bodily injury, and in order to recover, the injur}1- complained of must have been inflicted or caused by the negligence of the appellant, or its act or negligence or the act or negligence of its employees must have been the proximate cause of the injury. In Pittsburg Southern Railway Co. v. Taydor, 104 Pa. 306, it was said by Mr. Justice Paxson “ In determining what is proximate cause the true rule is, that the injury must be the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act. The soundness of this rule has not been questioned, and I know of no case to which it can be applied with greater propriety than to accidents resulting from the fright of horses.” Applying this rule, to the facts of this case how can it be said that any act of the appellant or its employees as presented in the testimony, was the proximate cause of the injury to the appellee ?

Pittsburg, Fort Wayne and Chicago Railroad Company v. Hinds, 53 Pa. 512, cited by the appellee, was an action against a common carrier of passengers, for an injury to a passenger by one of a mob of drunken men who suddenly invaded a car. While a recovery in that case was not sustained, Woodward, C. J., there said: “ The only ground on which the carrier can be charged is a violation of the contract of carriage made with the injured party.” It was also said in the same case, “there is no such privity between tbe company and the disorderly passenger as to make the company liable on the principle of respondeat superior.”

This case considered upon its facts, is not one in which the appellant should be held liable for the acts of those not in its employ. The sudden outburst of passengers in a noisy demonstration was not an occurrence that the appellant was bound to anticipate or provide against. The cases cited by the appellee where railroad companies have been held liable for frightening horses by the unnecessary blowing of steam whistles by their engineers and firemen on bridges or highways are not in point; there the injury was the unnecessary and wanton act of an employee while engaged in his master’s business, while here the act was that of disorderly passengers between whom and the appellant the principle of respondeat superior has no application. While it would be difficult to prescribe a rule applicable to all cases, it would be most unreasonable to hold the appellant liable for the injury in this case.

A rule that would hold this appellant liable for the result of the sudden noise on this occasion, which in the exercise of sound judgment and discretion it was not obliged to anticipate or provide against, we are not prepared to establish or sanction. The question of the position and action of the motorman in the management of his car and the speed of the car having been withdrawn from the jury, the first point of the plaintiff should have been affirmed. The specification of error is sustained and the judgment reversed.


author: Orlady, J., Rice, P. J., and Beaver, J.,

text:
    Frank A. Rieker and Mary G. Foehl v. Elizabeth D. Koechling, Appellant.

      Bailment — Contracts to buy at expiration of term of lease.

    An option to buy at the expiration of the' term of a lease, upon payment of an additional sum, has frequently been held to be proper in contracts of bailment.

      Contracts — Bailment a question of intention.

    The courts in determining whether or not the contract was one of bailment, or one of sale with an attempt to retain a lien for the price do not consider what name the parties have given to the contract.

      Contracts — Lease of chattels — Option to buy — Bailment.
    Where the writing shows a clear intention to make a contract of bailment and that it was not a pretense but a fact, and where the property is “ rented and let ” “ for the use, lease and hiring of the same ” and the second party agrees to pay a fixed monthly rental and in default of payment to vacate the premises and to deliver up the fixtures, with an option to purchase, after the expiration of the lease, for $100 additional, and where there is nothing in the writing or testimony to warrant the court in doubting the fairness of the amount of the payments as rent; and where the identity and value of the property is preserved so that the bailor may have his own again, the contract is one of bailment and not of sale, and the goods are not subject to execution for the debts of the bailee.
    Argued Nov. 11, 1896.
    Appeal, No. 22, Nov. T., 1896, by defendant, from judgment of C. P. Lancaster Co., June T., 1895, No. 30, on verdict for plaintiffs.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladt and Smith, JJ.
    Affirmed.
    Rice, P. J. and Beaver, J.. dissent.
    Feigned issue to try right to certain personal property. Before Livingston, P. J.
    Elizabeth D. Koechling obtained judgment for $397.20 against William G. Foehl, a hotel keeper in the city of Lancaster, and levied upon certain chattels in his possession. After the goods had been levied on but before sale, they were all claimed, — some by Mary G. Foehl, wife of the defendant in the execution, and the remainder by Frank A. Rieker, who alleged that the goods claimed by him were in the possession of the defendant in the execution under and by virtue of an agreement of lease under bailment.

      April 12, 1897:
    Other facts and the text of the agreement are set out in the opinion of the Superior Court.
    Verdict and judgment for plaintiffs in the interpleader. Defendant appealed.

      Errors assigned were (1) refusal to give binding instructions for the defendant; (2) in directing the jury to find for the plaintiff ; (3) in entering judgment on the verdict for the plaintiff; (4) in not entering judgment for defendant non obstante veredicto.

      William H. Keller, with him J. L. Steinmetz, for appellant.—
    In order to constitute a bailment two essential requisites must be present and clearly set forth in the agreement: First, it must have a fixed and definite term during which the bailment is to continue. Second, there must be an express stipulation for the return of the property to the bailor at the expiration of the term. If either of these essentials is lacking, the agreement is not a bailment but a sale on condition, and on execution issued against the vendee, the vendor cannot claim the property as against the execution creditor: Farquhar v. McAlevy, 142 Pa. 233; Stephens v. Gifford, 137 Pa. 219; Brunswick & Baike Co. v. Hoover, 95 Pa. 508; Stadtfeld v. Huntsman, 92 Pa. 53; Ott v. Sweatman, 166 Pa. 217; Kestner & Lauer v. Cigar Co., 4 Dist. Rep. 479.

      W. U. Kernel, with him J. Kay Brown and John A. Coyle, for appellees.
    — The agreement in this case was purely a contract of bailment. In the case of Brown Bros. & Co. v. Billington, 163 Pa. 76, the whole line of cases on this subject was elaborately reviewed by Mr. Justice Green, and in the still more recent case, Goss Printing Press Co. v. Jordan, 171 Pa. 474, the opinion of Mr. Justice Green was affirmed.
    The identical point at issue has been ruled by this court in Jones v. Wands, 1 Pa. Superior Ct. 269, which is altogether conclusive of this controversy.
   Opinion by

Orlady, J.,

The appellant secured judgment against William G. Foehl on which an execution was issued and a levy directed to be made on certain goods previously purchased by Frank A. Rieker from one Markert, a former landlord of the hotel. Possession of the property was given to William G. Foehl, the execution debtor under an agreement, as follows:

“This agreement made the 8th day of February, A. D. 1895, between Frank A. Rieker of the city of Lancaster, Pennsylvania, of the one part, and William G. Foehl of Lancaster City, Pennsylvania, of the other,part, Witnesses: that for and in consideration of five thousand four hundred dollars to be paid in monthly instalments of two hundred dollars each, the said party of the first part hath this day rented and let unto the said William G. Foehl the fixtures and utensils contained in Markert’s café and restaurant, situated at the corner of Market and Grant streets, a schedule of which is hereunto annexed, marked exhibit A. and for the use, lease and hiring of the same, the said party of the second part agrees to pay the said sum of two hundred dollars ($200) per month, payable as aforesaid in monthly instalments, beginning February 15, 1895. The said fixtures and utensils to remain the property of Frank A. Rieker exclusively until five thousand four hundred dollars has been paid; namely, in twenty-seven instalments of two hundred ($200) each. If, at the end of the said twenty-seven months the said party of the second part shall pay to the said Frank A. Rieker one hundred dollars ($100) additional, he may purchase the said property at that price. In the mean time, upon any failure or dereliction of the said William G. Foehl, party of the second part, to pay said monthly instalments, he agrees to surrender said property and to waive all right to purchase the same, and hereby consents to an amicable ejectment from said property, and that the said party of the first part may claim and take the same without resort to replevin or to any other proceeding at law.

The party of the second part further covenants and agrees that if, at any time, he shall surrender said fixtures, or default in the pajanent of said rental, he will vacate the premises occupied by him at corner of Market and Grant streets, and consent to a transfer of the license thereof to any person whom the said Frank A. Rieker may name, and who may apply in the legal manner to the court of quarter sessions of Lancaster county. The said Foehl is to replace any of the articles worn out or destroyed, and the party of the second part further agrees, at any time that he may, under the terms of this agreement, be called upon to deliver said fixtures, to deliver them up to the said F. A. Rieker in as good condition as he now receives them, reasonable wear and tear and loss from fire excepted.”

Some of the goods levied upon were claimed by Mary G. Foehl, the wife of defendant, and as to them no defense was made. The remaining goods were claimed by Frank A. Rieker, and this issue framed to try the title thereto.

The trial resulted in the court directing a verdict for the plaintiff (appellee) with leave to the defendant to move to enter a judgment non obstante veredicto.

After hearing the court discharged the rule and judgment on the verdict was entered for the plaintiff. The court held: “It is undoubtedly a contract of bailment, and the delivery of the property to Foehl, under its stipulations did not pass either title or possession thereof to him, which would render it subject to levy and sale on execution by his creditors.” Appellant assigns for error :

First. The refusal to give binding instructions for the defendant.

Second. Directing the jury to find for the plaintiff.

Third. Entering judgment for plaintiff on the verdict; and urges that the written contract evidences a conditional sale because, first, it does not stipulate for a fixed and definite term during which a bailment is to continue; second, there is no provision for the return of the property to the bailor at the expiration of a term.

The courts, in determining whether or not the contract was one of bailment, or one of sale with an attempt to retain a lien for the price have not considered what name the parties have given to the contract, but what was its essential character: Ott v. Sweatman, 166 Pa. 21T.

The writing shows the clear intention of the parties to make a contract of bailment, and that it was not a pretense but a fact. The property is “ rented and let for the use, lease and hiring of the same,” the second party “ agrees to pay the sum of two hundred dollars per month in twenty-seven monthly instalments, beginning February 15, 1895,” “in default of the payment of said rental he will vacate the premises; ” “ he is to replace any of the articles worn out or destroyed ” and “at any time that he may, under the terms of this agreement, be called upon to deliver said fixtures, to deliver them up to the said F. A. Rieker in as g-ood condition as he now receives them, reasonable wear and tear and loss from fire excepted.”

During the twenty-seven months following February 15,1895, $200 as rent would be due and payable as such.

There is no suggestion of a sale, until after $5,400 have been paid in twenty-seven monthly instalments of $200 each, when, if William G. Foehl then, “ shall pay to the said Frank A. Rieker one hundred dollars additional he may purchase the said property at that price.” The option to purchase was entirely with William G. Foehl, and he alone could then decide whether, after performance of the conditions of the agreement he would buy or surrender the property. After payment of all the rent, the title to the goods was still in Rieker, with the outstanding personal option to purchase in Foehl.

The delivery of the property was made upon the express condition, “ the said fixtures and utensils to remain the property of Frank A. Rieker exclusively until five thousand four hundred dollars has been paid, namely, in twenty-seven instalments of two hundred dollars each,” and “upon any failure or dereliction of the said William G. Foehl, to pay said monthly instalments, he agrees to surrender said property and to waive all right to purchase the same ” and that Rieker may claim and take the property without resort to replevin or to any other proceeding at law.

The form of expressing the term has never been adjudicated, and the time, during which this property is leased is as' fixed and definite — a certainty as to beginning and end, in the stipulation “ to pay the sum of two hundred dollars per month payable as aforesaid (five thousand four hundred dollars to be paid in monthly instalments of two hundred dollars each) in monthly instalments, beginning February 15, 1895,” — as if the first and last days of the twenty-seven months had been specifically named, by day, week, month and year designation.

There is nothing in the writing, or testimony adduced on the trial to warrant the court in doubting the fairness of the amount of the payment as rent, when the character of the property, the business in which it was used, the length of the term, the manner of payment of the rent, the. preservation of the property, are considered. The identity and value of the property was 'to be preserved so that the bailor might have his own again, as in Stephens v. Gifford, 137 Pa. 219. While provision for the return of the property at the expiration of twenty-seven months is not made directly, it is made certain under the terms of the agreement, that unless William G. Foehl elects to purchase and pays the additional sum which is independent of the rent, he has no right of any kind to any part of it, and the owner has abundant legal remedy to recover possession of the property at the expiration of the term which Rieker is to deliver up in as good condition as he receives it, reasonable wear and tear and loss from fire excepted. During the term Foehl had no right to acquire ownership of the property or to sell the whole or any part of it: Edwards’ Appeal, 105 Pa. 103.

The option to buy at the expiration of the term, upon payment of an additional sum, has frequently been held to be proper in contracts of bailment: Jones v. Wands, 1 Pa. Superior Ct. 269.

The undisputed evidence is in accord with this construction of the writing. The property was so treated by the parties, and their intention was plainly expressed in the written contract, which was one of bailment, in which the title did not pass at all as against the bailor either in favor of the bailee or his creditors.

Goss Printing Press Co. v. Jordan, 171 Pa. 474, Farquhar v. McAlevy, 142 Pa. 233, and the line of cases to which it belongs is not in conflict with the construction given this contract.

Of the Farquhar v. McAlevy contract the Supreme Court says : “ It is true, it is claimed to be a lease and the transaction a bailment, but it is not so even in form.”

In that case, the manifest purpose of the transaction was to sell and not hire, in this, for reasons above given the obvious intention was to lease for the term named.

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

Rice, P. J., and Beaver, J.,

Dissenting, April 12,1897:

We are unable to distinguish this case from Farquhar v. Mc-Alevy, 142 Pa. 233. There the so-called lease was for a gross sum payable in two instalments, and upon compliance with its terms the lessee was to have the privilege of purchasing the machinery for $1.00. Here the lease was for a gross sum payable in twenty-seven monthly instalments, and upon compliance with its terms the lessee was to have the privilege of purchasing the property for $100. There is as much reason for saying that the former was a lease for a year as that this was a lease for twenty-seven months.


author: Beaver, J.,

text:
    Rebecca E. Miller for use of William G. Moore v. Isaac R. Lash. Appeal of John J. Kutz.

      Practice, Superior Court — Limitation on appeals — Definitive decree.

    An appeal taken November 16, 1896, from an order or decree refusing to set aside a writ of fl. fa. made June 20, 1895, will not be considered. If the decree is definitive the appeal is too late, if it is not a definitive decree no appeal lies therefrom.

      Presumption — Discretion of court.

    The matter of setting aside sheriff’s sales belongs to the class in which the courts exercise discretionary power. The appellate court will not presume that the court below acted arbitrarily and without proper proof of the facts on which to base its action. Where the court acts on extrinsic evidence the presumption is that everything was done rightfully and according to law.

      Sheriff's sale — Refusal to set aside.

    A sheriff’s sale of property took place on June 22 ; on July 8, exceptions were filed; on August 12 rules were respectively granted to recall and cancel the deed and to dismiss the exceptions nunc pro tunc. Upon hearing, the rule to dismiss exceptions was made absolute. Held, that when upon review of all the facts of the case it appears no serious error was committed below and that greater injustice would be done by allowing the appeal than by affirming the decree, the appeal will be dismissed.

      Jurisdiction — Sale of land in two counties — Act of 1840.
    While there would be doubtless less confusion and expense if the court which first assumes jurisdiction under the Act of June 18, 1840, P. L. 692, sec. 12, and whose mesne or final process has made the first actual seizure of the land, were allowed to continue exclusive control thereof until sale and the distribution of the fund arising therefrom ; in the absence of legislation the courts cannot judicially establish rules governing the subject without imposing conditions which could not be enforced.
    Argued March 9,1897.
    Appeal, No. 34, March T., 1897, by John J. Kutz, executor of Samuel H. Kutz, for himself and others, mortgagees of Isaac R. Lash, from the several orders of C. P., Lebanon Co., tbe first, refusing to set aside writ of fi. fa. issued to No. 1, Sept. T., 1895, on the above judgment, 215 Dee. T., 1893, for the reasons set forth in appellant’s petition ; the second, refusing to set aside the sheriff’s sale of the land sold under the said writ, and making absolute the rule of the plaintiff in the execution, to dismiss the exceptions to the said sale nunc pro tunc.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlad y, JJ.
    Affirmed.
    Rule to set aside fi fa. and sheriff’s sale. Before Ehrgood, P. J.
    The facts sufficiently appear in the opinion of the court below, which is as follows:
    Exceptions to the confirmation of sheriff’s sale and acknowledgment of deed to purchaser.
    The subject of contention in this proceeding is a tract of land containing about forty-two acres situate partly in Lebanon county and partly in Berks county.
    Samuel H. Kutz, the exceptant, was the holder of a mortgage, which was the first lien upon that part of said real estate situate in Berks county, upon which he issued a scire facias, and after having obtained judgment thereupon, issued a writ of levari facias for the sale of said property, and the sheriff, pursuant to the provisions of the act of June 13, 1840, held an inquisition for the purpose of determining whether the entire tract should be sold together, or whether that part of the land situate in Berks county could be sold separately without injury to the whole.
    After a return of said inquisition the sheriff of Berks county, on July 13,1895, sold the whole of said tract to Samuel H. Kutz, the exceptant, for the sum of $600, and afterwards acknowledged and delivered a deed for the same to said Kutz.
    William G. Moore, the plaintiff, was the holder of a judgment against the above-named defendant, which was the first lien on that part of said real estate situate in Lebanon county, and he also issued an execution upon his judgment in Lebanon county. The defendant in the judgment, Isaac R. Lash, and Wm. G. Moore, assignee for the benefit of creditors of the said Isaac R. Lash, in writing, accepted notice of the sheriff’s inquisition to be held pursuant to said act of June 13, 1840, and waived all further notice or requirements of said act so far as the same related to them and further agreed that said real estate should be sold upon the writ of fieri facias then issued.
    The inquisition, summoned by the sheriff of Lebanon county, found that the portion of land situate in Lebanon county could not be sold separate and apart without prejudice to the whole, which said inquisition upon presentation to the court was approved.
    The sheriff of Lebanon county, in pursuance of said waiver and agreement, on the 19th day of June, 1895, sold the whole of said tract to W. M. S. Moore, for the sum of three hundred dollars.
    The exceptions to the sheriff’s sale and acknowledgment of the deed to the purchaser were filed in the prothonotary’s office on July 8, 1895.
    These exceptions not being noticed by the sheriff, a deed was acknowledged for the said property to the said W. M. S. Moore, on the 29th day of July, 1895. On the 12th day of August, 1895, a rule was granted upon the exceptants to show cause why the said exceptions should not be dismissed as of a time anterior to July 29, 1895. The exceptions and the rule will be considered and disposed of together.
    The first sale of the real estate in question was by the sheriff of Lebanon county on Moore’s judgment, under which the same was sold subject to the lien of Kutz’s mortgage on that part situate in Berks county. Afterwards the sale by the sheriff of Berks county divested the sheriff’s title to that part of the property in Berks county and the purchaser at said sale acquired title to that part situate in Lebanon county subject to the title acquired by the purchaser at the sheriff’s sale in Lebanon county. The situation at present then is that the pur-, chaser at sheriff’s sale under the Moore judgment has title to that part of the real estate situate in Lebanon county, and the purchaser at sheriff’s sale under the Kutz mortgage has an absolute title to that part of the real estate situate in Berks county and also title to that part in Lebanon county, subject to the title acquired by the purchaser under the Moore judgment. We are now asked to take off the acknowledgment of the deed and order its surrender and set aside the sheriff’s sale under the Moore judgment, which would lose to the creditors of Isaac R. Lash, the sum of three hundred dollars, and perfect the title to the whole tract in the purchaser under the mortgage held "by Ivutz. Ordinarily the object to be attained by setting aside a sheriff’s sale is a resale of the property for a better price, or to a better advantage to the owner or his creditors. In this case the sale is to be set aside to the detriment of the owner, and his creditors, and to the advantage of the purchaser at the sale under the mortgage.
    The supervision of a sheriff’s sale and acknowledgment of his deed belong to the discretionary powers of the court of common pleas: Rees v. Berryhill, 1 Watts, 263; Sloan’s Case, 8 Watts, 194; Jackson v. Morter, 82 Pa. 291.
    We are asked to use our discretionary powers, not in favor of a purchaser who wants to be relieved of his purchase by-reason of irregularity in the process by which he might get a defective title, or by irregularities in the advertisement or conduct of the sale by which he was misled or deceived, nor for the purpose of having a resale by which he might be benefited as a creditor by an enhanced price, but in favor of a purchaser for the purpose of perfecting his title to the very real estate the sheriff’s sale of which he seeks to set aside and thereby preventing a re-sale and losing to the debtor and his creditors the purchase money of the sale sought to be set aside.
    We are of the opinion that the irregularities complained of are not sufficient, under the circumstances, to sustain the exceptions.
    And now, November 4,1896, rule to show cause, etc., made absolute, and the exceptions dismissed as of July 27, 1895. The costs of this proceeding to be paid by the petitioner.

      Errors assigned were (1, 2) refusing to set aside fi. fa. upon the facts set forth in the petition of Samuel H. Kutz; (3) in refusing to set aside sheriff’s sale for alleged misdescription; (4) in refusing to set aside sale made under a fi. fa. alleged to be irregular and illegal, being contrary to the act of 1840 ; (5) in refusing to set aside the sale by reason of the fact that the price of the property sold was greatly inadequate, owing presumably to the irregularities in said sale, and the uncertainty of the title ; (6) in refusing to set aside sale by reason' of the fact that proceedings to sell were commenced in the county of Berks a week before tbe issuing of the writ of fi. fa. in Lebanon, and were regularly proceeded with in accordance with the act of assembly. The ordinary comity of the court should have given the proceedings in Berks precedence, even if the Lebanon was regular. The jurisdiction of the Berks county court had attached, but the requirement of selling under a second writ extended the time of sale beyond the sheriff’s sale in Lebanon; (7) in not giving consideration to the allegation contained in the answer of Samuel H. Kutz that plaintiff’s judgment under which the sale under the fi. fa. was made was given to defraud creditors and especially the mortgagee ; The denial of Moore to the above allegation being evasive.

      Herbert R. Green, with him A. G. Green, John J. Kutz and Howard O. Shirk, for appellant.
    — The abuse of the discretionary power is ground for review.
    These assignments challenge the power of the sheriff to sell under a fi. fa. without the intervention of a term of court, an alias writ and an approval of the inquisition after the return day of the first writ, as prescribed by the act of 1840. If the authority to sell is wanting the sale is nullity.
    - The practice under the act of 1840, as above outlined, has been fully settled by the decisions of the courts of Pennsylvania: Worthington v. Worthington, 3 Clark, 208; Elliot v. McGowan, 22 Pa. 198; Hibberd v. Bovier, 1 Grant, 266.
    Any one interested in fund or land may apply to set aside sheriff’s sale; Laird v. Laird, 2 Clark, 206; Connelly v. Phila., 86 Pa. 110; Shakespeare v. Delany, 86 Pa. 108; Corlies v. Stanbridge, 5 R. 285; Cochran v. Eldridge, 49 Pa. 365.
    Owing to the excessive haste shown by the plaintiff, no time was afforded to those interested, other than the defendant, to file exceptions to the inquisition, although under the prescribed practice they should have had until the third day after the return day of the writ. By this arrangement the sheriff of Lebanon was enabled to advertise the property for sale on June 14, 1895, and on the 22d of June, 1895, to sell to the plaintiff, William G. Moore, for $300, a property for which at a previous sale he had bidden, over $2,000. It is only necessary to add that such artifices the Supreme Court have repeatedly frowned upon and will not sustain: Abbey v. Dewey, 25 Pa. 413; Sharp v. Long, 28 Pa. 433.

      April 12, 1897:
    The misdescription complained of was sufficient to have de* manded that the sale be set aside: Carlin v. Leng, 1 Phila. 375, and refusal to do so was an abuse of discretion: Tigue v. Banta, 176 Pa. 414; Felton v. Felton, 175 Pa. 44.
    While both courts had concurrent jurisdiction over the subject-matter, the one whose process first issued must be protected against interference on the part of the other, otherwise interminable confusion and loss must ensue: Slyhoof v. Flitcraft, 1 Ash. 171; White v. Johnson, 2 Ash. 146; Cl., P. & A. R. R. Co. v. Erie, 1 Grant, 212; 27 Pa. 380.

      William M. Derr, with him Gfrant Weidman, Jr., and Cyrus G-. Derr, for appellee.
   Opinion by

Beaver, J.,

This purports to be “ an appeal of John J. Kutz, executor of Samuel H. Kutz, deceased, for himself and other mortgagees of Isaac R. Lash, from the several orders of the court of common pleas of Lebanon county; the first refusing to set aside writ of fi. fa. issued to No. 1, September term, 1895, on judgment 215 December term, 1893, for the reasons set forth in appellant’s petition; the second refusing to set aside the sheriff’s sale of the lands sold under the said writ and making absolute the rule on the plaintiff in the execution to dismiss the exceptions to the said sale nunc pro tune.” The order or decree refusing to set aside the writ of fieri facias above referred to was made June 20, 1895. This appeal was taken November 17, 1896. If the order referred to was a definitive decree, the appeal is too late, having been taken more than three months after it was made. If- it was not a definitive decree, no appeal lies therefrom. We are called upon, therefore, to consider only the order of the court refusing to set aside the sheriff’s sale of the land sold under the writ of fieri facias and making absolute the rule on the plaintiff in the execution to dismiss the exceptions to the said sale nunc pro tunc.

The appellant’s testator held in his lifetime a mortgage upon a tract of land which was situate partly in Berks and partly in Lebanon counties. His mortgage was recorded in Berks and not in Lebanon county. He began proceedings to foreclose the mortgage in Berks county in May, 1894. After making sale of the entire tract in Berks county, the sale was, upon exceptions filed thereto by William G. Moore, a judgment creditor of the mortgagor, set aside on the ground that it was subject to the provisions of the Act of June 13, 1840, P. L. 692, and that no inquisition had been held thereon in accordance with the provisions of that act. Inquisition was subsequently held and a resale made on the 13th of July, 1895. In the meantime Moore, who was the assignee of a judgment of Rebecca E. Miller v. Lash and who was also the assignee of Lash, issued execution upon the said judgment May 21,1895; notice of inquest under the act of 1840 was accepted by Lash and Moore, his assignee, on the same day. The next day inquest was held by the sheriff of Lebanon county which found that the part of the land lying in Lebanon county, showing eleven acres and one hundred and seven and one half perches in Berks, could not be sold without prejudice, etc. On the 23d of May this inquest was approved by the court. A sale was advertised for June 14, 1895, on which day the mortgage of Kutz et al. was entered for record in Lebanon county. On the same day Kutz et al. petitioned the court to set aside the fi. fa. issued on the Miller judgment, upon which a rule to show cause was granted, which was discharged June 20, following, and on the 22d of June the sheriff of Lebanon county sold the land to William G. Moore, subject to the Kutz mortgage. On the 8th of July exceptions were filed by Samuel PI. Kutz to the sheriff’s sale and on the 29th of the same month the sheriff’s deed was acknowledged to the -purchaser, notwithstanding the pendency of exceptions. August 12, on motion of the attorney of Kutz et al., rule was granted to recall deed and cancel the acknowledgment, and on the same day the purchaser at sheriff’s sale presented a petition, praying that the exceptions to the sheriff’s sale be dismissed nunc pro tunc, as of a day prior to the acknowledgment of the sheriff’s deed. Upon a hearing, the rule to dismiss exceptions to sheriff’s sale nunc pro tunc was made absolute. Hence this appeal. In Laird’s Appeal, 2 Pa. Superior Ct. 300, the effect of the Act of May 9, 1889, P. L. 158, as to appeals of this character was fully discussed and the authorities as to the interference of an appellate court with the discretionary power of the court below in cases of this character carefully collected and fully discussed. It is not necessary to repeat what was there said. The term “ abuse of discretion,” so often employed in cases like this, is, of course, used in its legal sense, which means simply a use of discretion contrary to established usage ; and, if we were satisfied that the court below had by its final decree sanctioned the violation of the provisions of the act of June 13,1840, supra, we would not hesitate to interfere. A careful examination of this act, however, and of the proceedings in Lebanon county thereunder, fails to reveal any such departure from its requirements as would warrant us in interfering with the final order of the court confirming the sale in said county. There is no provision in the act which we are considering for notice of inquest to anyone. Admitting as reasonable what is said by Judge Shars"WOOD, when he was upon the bench of the district court of Philadelphia in Worthington v. Worthington, 3 Clark, 208, that notice to the defendant in such case is proper, as under the act of 1836 in the case of an inquest as to extension or condemnation proceedings, we have here a distinct waiver of such notice by the defendant which is, of course, equivalent to service of notice by the sheriff. The approval of the inquest by the court and the agreement on the part of the defendant to sell upon the fi. fa. constitute a substantial compliance with the provisions of the act in those respects.

The appellant suffers no wrong. The sale in Lebanon county was made subject to the mortgage which he held. He made a sale subsequently in Berks county and, therefore, has the title to which such sale entitles him. It would be grossly inequitable to set aside the sale made in Lebanon county and allow the appellant to claim the lands lying in both counties under a subsequent sale at which it may fairly be presumed buyers were prevented from bidding, upon the supposition that the sale previously made in Lebanon county was good. There is nothing in the act of 1840, supra, which prevents or seems to hint at preventing parties from proceeding in both counties concurrently. There would doubtless be less confusion and less expense if the court which first assumes jurisdiction in pursuance of the provisions of the act of 1840 and whose mesne or final process has made the first actual seizure of the land, in order to make sale thereof, were allowed to continue exclusive control thereof, until sale and the distribution of the fund arising therefrom; but it is easy to see that the creditor who has his lien in another county might be subjected to great delay and inconvenience if such a rule were established and enforced. In the absence of legislation upon the subject, we cannot see that we can judicially establish rules governing the subject, without imposing conditions which could not be enforced.

If the allegation as to the fraudulent character of the judgment of Mrs. Miller assigned to Moore had been made in the original exceptions, or if after it was alleged in the appellant’s answer, any serious effort had been made, by depositions or otherwise, to make the allegation good, it is probable, although the facts in that case are entirely different, that, under the late ruling in Tigue v. Banta, 176 Pa. 414, it should have been considered. Admitting, as it might be urged, that appellant made the allegation upon his first knowledge of the facts, it is, nevertheless, true that it was distinctly denied by Moore in his replication, and appellant’s answer having been filed September 14, 1895, and the argument upon the rule not heard until October 28, there was abundant time to make the allegation good, if there were facts to support it. Having made no effort in this direction, he should not complain that the allegation was disregarded by the court below.

Upon a careful review of all the facts in the ease, we are convinced that no serious error was committed by the court below, and that greater injustice would be done by allowing this appeal to prevail than by affirming the decree of the court. The decree of the court below is therefore affirmed, and the appeal dismissed at the costs of the appellant.


text:
    Micheal Cuff v. The Township of Butler, Appellant.
    Argued Dec. 7, 1896.
    April 12, 1897:
    Appeal, No. 58, Nov. T., 1895, by defendant, from judgment of C. P. Schuylkill Co., May T., 1885, No. 222, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orladv and Smith, JJ.
    Reversed.
    Verdict and judgment for plaintiff for $500.18. Defendant appealed.
   Opinion by

Smith, J.,

This case was tried with that of Martin Dixon against the same township and both were argued together in this court. They grow out of the same unfortunate accident and involve the same facts. For the reasons given in the opinion just filed in the Dixon case the 7th and 9th assignments of error are sustained and the judgment in this case is also reversed.