author: Beaver, J.,

text:
    King v. McKinstry, Appellant.

      Contract — Claim for services — Testamentary writing — Vei'dict—Amount —Sealed verdict.

    A paper signed by a decedent and given to Ms daughter was as follows: “Jan. 4th, ’97, This I do write so as'all can see when I am gone, that I want mistress Eunis King paid for work done here according to my promise and agreement with her. I do fix the price at seventy-five cents per week.” Held, that the paper was not testamentary in character. , .
    In a suit brought on the above paper, the jury sealed a verdict generally for plaintiff. When the sealed verdict was opened, the court directed the jury to fix the amount definitely. They thereupon rendered a verdict as follows: “And now, to wit: 1905, we, the jurors empaneled in the above-entitled case, find a verdict in favor of plaintiff as follows: $1.50 per week for the last six years preceding the death of William McKinstry. Total amount $468.” Judgment was entered on the verdict. On appeal plaintiff’s counsel admitted that plaintiff was only entitled to compensation at the rate of seventy-five cents per week, and requested the court to reduce the amount to $234. Held, (1) that the court below had not exceeded its authority in requiring the verdict to be made certain by fixing the amount; and (2) that the appellate court had the power to reduce the amount to $234, and affirm the judgment.

      October 5, 1906:
    Argued May 14, 1906.
    Appeal, No. 86, April T., 1906, by defendant, from judgment of O. P. Armstrong Co., March T., 1905, No. 6, on verdict for plaintiff in case of Eunice T. King v. S. T. McKinstry, Administrator c. t. a. of Estate of William McKinstry, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for services. Before Patton, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $468. Defendant appealed.

      Errors assigned among others were (7) in admitting in evidence the paper quoted in the opinion of the Superior Court; (6, 9) in directing the jury to fix a definite amount for their verdict, and in entering judgment on the verdict as finally returned by the jury.

      Harvey L. Miller, with him James W. King, for appellant.

      Alfred M. Lee, with him Eloy O. Jones, for appellee.
   Opinion by

Beaver, J.,

The claim of the plaintiff for compensation for services rendered to her father in his lifetime rested, for the most part, upon a paper writing, of which the essential part is: “ Jan. 4th, ’97, This I do write so as all can see when I am gone, that I want mistress Eunis King paid for work done here according to my promise and agreement with her. I do fix the price at seventy-five cents per week.”

This paper was attacked on two grounds: first, that it was a forgery, and, second, that it was a testamentary writing. The first was a question for the jury under the instructions of the court, which, after reading the testimony, we are satisfied were fully and fairly given; the second, for the court.

The jury found in favor of the genuineness of the writing and the court decided that it was not testamentary. We are not disposed to find fault with either of these conclusions.

The jury reached a conclusion during the night, sealed their verdict and brought it in the next morning. Upon opening,'it was 'found to be a general finding in favor of tbe plaintiff. The court sent the jury out to fix definitely the amount. Upon their return, they rendered the following verdict: “ And now, to wit: 1905, we, the jurors empaneled in the above-entitled case, find a verdict in favor of plaintiff as follows: $1.50 per week for the last six years preceding the death of William Mc-Kinstry. Total amount, $468.”

The appellant complains that the court exceeded its authority in submitting to the jury the question of the amount of their verdict after they had separated and brought in their sealed verdict. There is nothing substantial in this objection. The court not only did not exceed its authority, but acted in the discharge of a plain duty in requiring the verdict to be made certain by fixing the amount. The only tribunal .which could fix.it, under the circumstances, was the jury.

The fair interpretation of the verdict is that the plaintiff had a right to recover only for six years of service and that the claim for services for the period prior thereto was barred by the statute of limitations, that question having been submitted to the jury by the court.

In view of the fact that the paper upon which the plaintiff’s claim was founded fixed the value of the services at seventy-five cents per week and that there could be no claim outside of the paper itself, the jury was clearly in error in fixing the value of the services at $1.50 per week. There is substantial merit, therefore, in the ninth assignment of error, which is: “ That the court erred in accepting and entering judgment on the verdict of’the jury.” But inasmuch as the counsel of the appellee have made a specific request in their paper-book that — “ Plaintiff, in view of the fact that a paper written by the foreman of the jury has been placed in evidence, showing that the jury found a verdict for six years’ services at the rate of $1.50 per week, or $468, requests that the verdict be reduced by your honorable court to $284, being at the rate of seventy-five cents per week for six years, together with interest at six per cent since Dec. 11, 1902,” it is not necessary to reverse the judgment in order to reach a proper conclusion. Inasmuch, however, as the jury did not allow interest from the date of the death of the defendant’s testator, we will not depart from the letter of the verdict in making such an allowance.

Judgment is, therefore, now directed to be entered in favor of the plaintiff and against the defendant for $234, with interest from September 6,1905, the date of the rendition .of the verdict, the costs in this court to be paid by the appellee.


source: Caselaw Access Project

author: Oblady, J.,

license: Public Domain

text:
    Hale v. Hale, Appellant.

      Practice, C. P. — Pleading—Statement of claim — Evidence—Allegata et probata — Variance.
    The procedure act of 1887 requires that the declarations in assumpsit and trespass shall be a concise statement of the plaintiff’s demand. It should be not only concise, but precise; exhibiting with accuracy and completeness the ground on which recovery is sought. It is hot enough that the evidence may show a cause of action; it must show the cause of action laid in the declaration. The plaintiff does not recover on the proofs alone; he recovers secundum allegata et probata.
    In an action of assumpsit where the statement sets forth a claim for services rendered as bookkeeper and salesman, and the proof on the part of the plaintiff related wholly to an alleged partnership between the plaintiff and the defendant, a verdict and judgment for plaintiff cannot be sustained.

      Practice, C. P. — Trial—Disorderly conduct of witness.

    Where a plaintiff on the witness stand persistently charges crimes to his brother, the defendant, that had no possible relation to the questions at issue, and constantly puts in arguments and tries to throw slurs upon persons connected with the case, the court should entertain a motion to withdraw a juror and continue the case.
    Argued May 21, 1906.
    Appeal, No. 56, April T., 1906, by defendant, from judgment of* C. P. Crawford Co., Feb. T., 1904, No. 14, on verdict for plaintiff in case of Edgar H. Hale v. W. J. Hale.
    Before Rice, P. J., Portee, Henderson, Moeeison, Orlady, Head and Beaver, JJ.
    Reversed.
    Assumpsit for services. Before Thomas, P. J.
    The opinion of the Superior Court states the case.
    Verdict and judgment for plaintiff for $1,137.56. Defend, ant appealed.

      October 5, 1906:

      Errors assigned were various rulings on evidence and instructions, and refusal to withdraw a juror and continue the case on the ground of misconduct of the plaintiff.

      M. J. Heywang, for appellant.
    — It is the first and fundamental rule in the production of evidence that the evidence offered must correspond with what is alleged in the pleadings, as the basis of the action or of the defense; the allegata and the probata must-agree : Cleaver v. Garner, 133 Pa. 419 ; Ryder v. Jacobs, 182 Pa. 624; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508 ; Umbehocker v. Rassel, 2 Yeates, 339 ; Scott v. Horn, 9 Pa. 407; Lee v. Conard, 1 Whart. 155; Clark v. Lindsey, 7 Pa. Superior Ct. 43; Friedman v. Urmann, 28 Pa. Superior Ct. 440.

      Axtell J. Byles and Eugene Mackey, with them Julius Byles, for appellee.
   Opinion by

Oblady, J.,

In the statement of claim filed by the plaintiff in this case, he claims “ to recover from W. J. Hale, the defendant, the sum of $1,586.46, with interest thereon from July 7, 1902, being balance due plaintiff for services rendered by him for said defendant as bookkeeper, salesman, and for general work done and performed by plaintiff for defendant in and about said defendant’s coal yard and business in the city of Titusville, Penn., as per itemized statement of account hereto attached and made part hereof, showing the amount of said services, time when rendered and value thereof,” etc. The defendant filed an affidavit of defense, admitting the employment of the plaintiff under an express contract, and relied upon specific facts therein stated as well as the insufficient and defective character of the statement, and subsequently pleaded non-assumpsit payment, etc. The trial by jury resulted in a verdict in favor of the plaintiff for $1,137.66, with interest from July 7,1902.

In disposing of this appeal it is sufficient to consider only the assignments of error relating to the evidence of the plaintiff in support of his claim, as set out in his statement. Had the trial on the merits of the case resulted in a verdict which was supported by competent evidence, we would not be. disposed to disturb it. For, as stated in Erie City Iron Works v. Barber, 118 Pa. 6, the effect of our statutes has been to give more prominence to the trial of the cause had on its intrinsic merits, in the interest of a rational and speedy administration of justice, than.to the exact and precise observance of the artificial forms originally devised for this purpose, but which are supposed in some instances at least to defeat rather than to promote the ends of justice. In the case before us it is not so much that the statement of claim was insufficient and defective, as the radical departure on the trial from the cause of action set out in the statement. The spirit of the procedure act of 1887 plainly requires that every contract or agreenient upon which the claim in any manner depends, even if in parol, shall be averred in the statement. It was intended to dispense with formality, but to insist upon matters of substánce, indispensable to an intelligent and just judgment between the parties : Fritz v. Hathaway, 135 Pa. 274; Winkleblake v. Van Dyke, 161 Pa. 5. If a special agreement is relied on it should be set out. The act requires that the declaration in assumpsit and trespass is to be a concise statement of the plaintiff’s demand. It should be not only concise, but precise ; exhibiting with accuracy and completeness the ground on which recovery is sought. It is not enough that the evidence may show a cause of action; it must show the cause of action laid in the declaration. The plaintiff does not recover on the proofs alone ; he recovers secundum allegata et probata: Clark v. Lindsay, 7 Pa. Superior Ct. 43 ; or, as stated in Hennessy v. Anstock, 19 Pa. Superior Ct. 644, not only must the declaration set forth a wrong, and the evidence show a wrong, but the wrong shown must be the wrong alleged : Friedman v. Urmann, 28 Pa. Superior Ct. 440.

On the trial the plaintiff’s proof was not responsive to the demand set out in the statement. From the opening to the conclusion of the case, his contention was, that he and the defendant had been, for the whole time covered in the itemized account, associated as partners and not as employer and employee. Frequent objections were made by the defendant’s counsel in various forms to the competency and relevancy of the evidence under the pleadings, and that an entirely new and different cause of action was introduced, which was followed by a motion for a nonsuit and a new trial. He had the right to rely on the well-established rules of law regulating the orderly trial of the action set out on the record. His complaint is not so much that the statement was defective as that it was entirely ignored. The plaintiffs testified: “We started in there July 2, 1897, as partners between Edgar Hale, W. J. Hale and myself; I was to have a half interest in the business, my brother was.to have a half interest; Edgar Hale (the father of the parties) could not own anything; the books were kept in the name of W. J. Hale; all contracts were made in his name.” He unqualifiedly denied that he was employed by the defendant, or that he hired out to him for wages.

The statement does not suggest any partnership relation, or the evidence show that there was any account kept or record made of the time, services or compensation of the plaintiff. Whatever right he may have, it must be asserted in conformity with the law, and to permit a recovery under such testimony in supporting such a statement would be to ignore all order and method in pleading. No suggestion of an amendment was made even after the trial judge openly called the attention of plaintiff’s counsel to the fact that, on his own theory of the case, there was no evidence proffered to show a demand on the part of the plaintiff and a refusal on the part of the defendant to carry out the alleged agreement to enter into a partnership. While this proof was supplied, there was no amendment of the record to support it. This was not a case for an amendment of the pleadings to be allowed or made in'this court, as the case was not tried on its merits in the court below, and to sustain the verdict would be to approve the methods by which it was obtained. The issue and rights of the parties under the pleadings as made by the plaintiff himself were lost sight of, and from the confused and contradictory testimony the jury were called upon to adjust an alleged family partnership transaction (Ryder v. Jacobs, 182 Pa. 624) in which the methods of doing the business, the amount of stock, profits, and- proportions of interest were relied on to fix a quantum meruit per diem compensation of the plaintiff.

As the case goes back for another trial it is proper that the second assignment of error should be considered. The defendant’s counsel requested the court to withdraw a juror and continue tlie ease on account of the misconduct of the plaintiff while on the witness stand. It is fortunately rare that the misconduct of a party is so flagrantly exhibited as on the trial of this case. The action was between brothers, yet the plaintiff, while on the witness stand, “ much to his disgrace and should have been to his shame, denies his father as father, and his mother as mother,” as stated by the trial judge, and imputed crimes to his brother, the defendant, that had no possible relevancy to the questions at issue. Such testimony could not but create a bias or prejudice in the minds of the jurors. Ordinarily such conduct reacts on the unnatural accuser, but the effect in this case was evidently to create a sympathy for him, inasmuch as he recovered nearly tbe whole of -his claim; but whatever the effect may have been, his conduct was highly reprehensible, and merited the rebuke given to him by the court, viz: “ This witness persistently puts in some argument, and tries to throw some slur upon somebody connected with the case in an answer of some kind, that is not an answer at all; and if he does not quit it we will have to adjudge him in contempt of court, fine him and send him to jail.” His conduct interfered with the orderly progress of the trial, and the evil effects of his statements could not be overcome in any legitimate way. The cases are numerous where verdicts have been reversed when less glaring violation of the proprieties are practiced by counsel: 1 Troubat and Haly’s Prac., sec. 753, p. 421; Thompson v. Barkley, 27 Pa. 263; Wagner v. Hazle Township, 215 Pa. 219; Walsh v. Wilkes-Barre, 215 Pa. 226. And while it is peculiarly the discretionary duty of the trial court to see that the trial is conducted in a legal and orderly manner, and unless that discretion is abused such an order is not the subject of an appeal, as held in Commonwealth v. McMahon, 14 Pa. Superior Ct. 621, yet this record exhibits so gross a disregard of natural and civil duty, that it is impossible to estimate its dangerous influence on the minds of the jury, and the motion to withdraw a juror, etc., should have been sustained.

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


author: I-Iead, J.,

text:
    McCleery v. Stoup, Appellant.

      Vendor and vendee — Judgment—Lien—Legal title.

    A judgment entered against a vendor who has sold land by articles of agreement, but who still retains the legal title, becomes a lien against any estate remaining in the vendor evidenced by that title.
    If the vendor either in the agreement of sale itself, or at any time thereafter but prior to the entry of the judgment, in good faith, and for a lawful consideration to him moving, assigns and transfers to another, or to one in trust for a number of others, all of the unpaid purchase money, then the legal title remaining in the vendor is stripped of every incident and element of value to him, and there will be nothing upon which the lien of a judgment against him can fasten. He will then hold but the naked legal title in trust for his vendee, if the terms of sale are complied with, or for those who had succeeded to his own rights in the purchase money if it becomes necessary for them to use it to enforce those rights.
    Where a vendor in good faith assigns the purchase money of the land to the vendee to be by him applied in payment or settlement of the vendor’s debts, the transaction amounts to an assignment of the purchase money, and no title to it will remain in the vendor, to which the lien of a judgment against him can fasten.
    The assignment of a chose in action or of a fund need not be by any particular form of words, or particular form of instrument. Any binding appropriation of it to a particular use by any writing whatever is an assignment of a transfer of the ownership.
    Argued May 15, 1906.
    Appeal, No. 90, April T., 1906, by defendant, from judgment of C. P. Butler Co., Sept. T., 1905, No. 48, for plaintiff on case stated in suit of F. W. McCleery & Co. v. J. R. Stoup.
    Before Rice, P; J., Porter, Henderson, Morrison, Orlady, Head and Beater, JJ.
    Reversed.
    Case stated to determine the lien of a judgment. Before Galbreath, P. J.
    The case stated was as follows :
    1. That Samuel A. Purvis on September 19, 1908, by deed from Archie McDonald and Margaret McDonald, his wife, became the owner of a certain lot of ground situate in the borough of Valencia, Butler county, Penna.
    2. That on October 8, 1903, the' said Samuel A. Purvis and Jessie M. Purvis, his wife, joined in a mortgage to George F. Keck, on the aforesaid lot for $1,000, payable in three years at six per cent interest, and that $775 of the debt thereby secured remains unpaid and a lien on the lot therein described, with interest from October, 1904.
    3. J. W. Huston & Company on June 11, 1904, at common pleas No. 14, September Term, 1904, book 99, page 59, entered a judgment against Samuel A. Purvis for $350 and costs,, which was by payments and compromise reduced to $118.10, which includes balance of debt and costs and was a lien against the lot aforesaid on April 26, 1905, which $118.10 was paid in full by J. R. Stoup and satisfied by the plaintiffs, J. W. Huston & Company.
    4. The Leedom & Worrel Company, on April 24, 1905, at C. P. No. 140 and 141, June Term, 1905, book No. 100, pages 114 and 115, entered two judgments against Samuel A. Purvis, one for $200 and one for $100, with interest from February 20, 1905, costs and attorneys’ commission.
    5. On April 26, 1905, S'amuel A. Purvis and Jessie- M. Purvis, his wife, made and entered into a written article of agreement with J. R. Stoup for the sale of the lot of ground aforesaid, which was recorded on April 29, 1905, in Deed Book No. 232, page 133, a copy of which is hereto attached and marked exhibit “ A.”
    6. That F. W. McCleery & Co., plaintiffs in this suit, on April 27, 1905, at C. ■ P. No. 145, June Term, 1905, Book No. 100, page 117, entered judgment against Samuel A. Purvis for $265.64, costs and attorneys’ commission, on a judgment note dated April 15, 1905, on which judgment J. R. Stoup, under his written agreement of April_ 26, 1905 (exhibit “A”), on May 22, 1905, paid J. W. Hutchison, attorney for plaintiff, $132.82, attorneys’ commission $13.28, and costs $4.50, in all $150.60, leaving $132.82 of the judgment remaining unpaid and which has not since been paid. At the time of this payment a written agreement was made between the attorneys for the parties in this case, as follows: Should it be decided by the court that by reason of the judgment entered for $264.64, the plaintiffs, F. W. McCleery & Co., are entitled to any preference over other creditors, then the plaintiffs are to be paid the amount of that preference. At the time of the entry of said judgment of the McCleery company there was a balance of purchase money still owing by J. R. Stoup on this agreement in excess of the amount of the claim of the McCleery company.
    7. That if the court be of the opinion and decides that by reason of the judgment entered by the plaintiffs on April 27,1905, for $265.64, they have a preference over the other unsecured claims mentioned in the article of agreement of April 26,1905 (exhibit “A”), then judgment be entered for the plaintiffs against the defendant for $132.82 and interest and costs; but if the plaintiffs are not entitled to preference over the other creditors who have no liens of judgments or mortgages, then the plaintiffs to have pro rata with the other creditors on their judgment of $265.82, allowing a credit to J. R. Stoup thereon for the amount paid, $132.82, costs, $4.50, and commission, $13.28, in all $150.60, either party reserving the right to sue out a writ of error or take an appeal.
    “ Exhibit ‘ A.’
    “ Article of Agreement made and entered into this 26th day of April, 1905, between Samuel A: Purvis and Jessie Purvis, his wife, of Valencia, Butler County, Pa., parties of the first part, and James R. Stoup, of the same p(ace, party of the second part, as follows, to-wit: The parties of the first part for and in consideration of seventeen hundred dollars, to be paid as hereafter stipulated, agree and bind themselves, their heirs and assigns, to sell and convey to the party of the second part all that lot and piece of ground situate in the Borough of Valencia, Pa., bounded on the north by Maratta, on the east by street and B. & O. Railroad, on the south by hotel property of Mrs. Ludwig, on the west by J. D. McGee, tbe same being 50 x 150, the same being the lot lately used by Samuel A. Purvis as a store room, with warehouse, stable and other out-buildings thereon, and which is now being used and occupied by the second party as a store room. The said consideration money to be paid as follows, the party of the second part to assume and as part of the consideration a balance of a mortgage to George S. Keck, of seven hundred seventy-five, dollars ($775.00) and ($30) thirty dollars annual accrued interest thereon, in all eight hundred five dollars ($805.00), two judgments of Leedom & Worrel aggregating ($300.00) three hundred dollars and costs, judgment of Huston & Co., ($113.00) one hundred thirteen dollars. The parties of the first part also assign and transfer to the party of the second part, all their book accounts except the account of Samuel Daubenspeck, ($33.05) thirty-three 5-100 dollars and Samuel Emerick ($28 84-100) twenty-eight 84-100 dollars. The books to be placed in the hands of Edgar H. Negley, Esq., who is to collect the same.and pay over to the creditors of the party of the second part or to the unsecured creditors of the said Samuel A. Purvis; and it is further agreed to by the parties that four hundred eighty-two dollars, or whatever the balance after paying pro rata the secured creditors before mentioned, be paid in settlement of unsecured claims which may or in any be held to be a claim against this property or against the store sold by the first party to the second party on April 7th, 1905.”
    The unsecured claims being understood to be as follows:
    Leedom-Worrel Go., Butler, Pa......$119.00
    McCleery Co., Pittsburg........ 264.00
    Arbuthnot & Stevenson, Pittsburg..... 200.00
    Levett & McConnell, Youngstown, O. . . . 219.00
    National Biscuit Co., Pittsburg, Pa..... 45.00
    L. A. Butler, Pittsburg, Pa......... 51.00
    Loyd & Co., Butler, Pa........ 30.00
    Leedom-Worrel Co., Butler, Pa...... 37.00
    Openheimer, Pittsburg, Pa........ 51.00
    When the consideration money is paid and settled in full, deed in fee simple will be made by the parties of the first part to the party of the second part, his heirs and assigns. .Tbe fire insurance policy to be transferred to the second party for his use and benefit. Premium of the policy to be given this day.
    The court entered judgment for plaintiff on the case stated.

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

      John M. Greers, for appellant.
    — There was nothing to which the plaintiff’s judgment could attach a lien: Kinports v. Boynton, 120 Pa. 306.

      October 5, 1906 :

      J. W. Hutchison, for appellee, cited:
    McMullen v. Wenner, 16 S. & R. 18; Fasholt v. Reed, 16 S. & R. 266 ; Stewart v. Coder, 11 Pa. 90; Kinports v. Boynton, 120 Pa. 306.
   Opinion by

I-Iead, J.,

The paper-book of the appellant furnishes no satisfactory evidence that any action was ever begun in the court below. We find no abstract of the proceedings or copy of the docket entries as required by our rules. The only indication that such an action was actually brought is that the proceeding is assigned a particular number of a certain term of the said court. This may warrant us in assuming that the- decree complained of is, in reality, the judgment of a court of law in an action therein pending, but it would certainly be more satisfactory to be furnished with proper record evidence of this important fact.

That a judgment entered against a vendor who has sold land by articles of agreement, but who still retains the legal title, becomes a lien against any estate remaining in the vendor evidenced by that title, is a proposition that cannot, we think, be disputed. The case of Kinports v. Boynton, 120 Pa. 306, cited and relied on by the learned court below, is but one of many kindred cases so holding, but, being clearly to the point, further citations are unnecessary. We do not think, however, that by merely establishing this broad proposition the plaintiffs demonstrate the correctness of the judgment now under consideration. Such a vendor may hold the legal title to the land for many different purposes. If the purchase money has all been paid by the vendee, prior to the entry of any judgment against the vendor, then the latter holds the legal title simply in trust for the former. He has no estate in the land and there remains in him nothing to which the lien of a judgment could attach. If, however, at the time of the entry of the judgment, the whole or any part of the purchase money remains unpaid and owing to the vendor, then the legal title represents an estate in him, the quantity and value of which are measured by the purchase money unpaid, to which the lien of. the judgment will attach. Upon the extinction of that estate by the conveyance to the vendee of the legal title, the lien of the judgment will be transferred to the purchase money, and upon any distribution of such money the judgment creditor will take precedence over junior-lien or unsecured creditors of the vendor. From a consideration of these principles we think it must be clear that if the vendor, either in the agreement of sale itself, or at any time thereafter but prior to the entry of the judgment, in good faith and for a lawful consideration to him moving, should assign and transfer to another, or to one in trust for a number of others, all of the unpaid purchase money, then again the legal title remaining in the vendor would be stripped of every incident and element of value to him and there would be nothing upon which the lien of a judgment against him could fasten. He would then hold but the naked legal title in trust for his vendee if the terms of sale were complied with, or for those who had succeeded to his own rights in the purchase money if it became necessary for them to use it to enforce those rights.

Thus it appears that the important question for our consideration is not, did the judgment of the plaintiffs, at the time of its entry, become a lien upon any estate in-the land remaining in the vendor or any ownership in the purchase money, the equivalent of such estate?- because this is conceded ; but is, did the vendor, at the moment the judgment was entered, retain, in his own right and for his own use, any estate in the land or ownership in the purchase money, to which the lien of the judgment could attach ?

In disposing of this question we are not embarrassed with any complications that might arise were there any allegation of fraud in the transaction. There is no claim that the sale price was less than a fair and full consideration for the property or that there was any design on the part of either vendor or vendee to in any way hinder or delay the creditors of the former. On the contrary, the whole of the purchase money was, by the express direction of the vendor, to be applied in payment or settlement of his debts, they being correctly classified into secured and unsecured, according to their legal status at that moment.

“ An assignment of a chose in action or óf a fund need not be by any particular form of words or particular form of instrument. . . . Any binding appropriation of it to a particular use, by any writing whatever, is consequently an assignment, or what is the same, a transfer of the ownership; and that it may be effected by a letter of attorney to collect and distribute, so as to be good against an attachment by particular creditors, was ruled by this court in the United States v. Vaughan, 3 Binn. 394, etc.: ” Watson v. Bagaley, 12 Pa. 164.

“None of the acts of assembly relating to assignments for the benefit of creditors have required that they should be drawn in any specific form. Such instruments were well known and in common use when the act of March 24, 1818, was passed. And neither before nor after its passage was any particular collocation of words held necessary to give to a writing the effect of an assignment. Since 1818 property transferred to one person to he employed, paid over or converted for the benefit of others, has been regarded as property held in trust within the operation of the statutes : ” Wallace v. Wainwright, 87 Pa. 263.

Did it appear as a fact in this case that the disposition of the purchase money made by the vendor was on account of “ insolvency ” or his inability to pay his debts,” it would seem that every essential element of an assignment for the benefit of creditors was present in the writing executed and delivered' on April 26, 1905, which was regularly recorded within the time prescribed by the statute for the recording of such instruments. Had this cause been tried before a jury they might have been warranted in inferring such insolvency or inability from the other facts which do appear. But, dealing as we are with a case stated, such inferences may not be made by the court. We have no right to assume or infer the existence of any fact not stated and agreed on by the parties: Diehl v. Ihrie, 3 Whart. 143; City of Chester v. Traction Co., 4 Pa. Superior Ct. 575.

But whilst we might hesitate for the reason indicated to pronounce the paper under consideration an assignment for the benefit of creditors within the meairing of the statutes, we can see no good reason to doubt that it amounted to a special assignment of the purchase money due the vendor, to the vendee, to be by him applied to the use and benefit of the persons and firms named therein.

The vendor was entirely competent to make such an assignment. Having provided for the payment in full of all the debts which were liens on his title, he could dispose of the balance of the purchase money as he chose. To transfer it to creditors who were in no position to seize it was not only in no way illegal, but was a praiseworthy discharge of a moral obligation. This obligation was a good consideration to the assignor. If, then, we have competent parties for assignor and assignee, and a written agreement between them; if we have a good consideration moving to the former inducing its execution ; if we find the instrument after execution was delivered to, received and placed on record by the other party; if we find the subject-matter of that agreement to be property that will pass by assignment; if the paper contain a clear and distinct direction from a vendor to a vendee to appropriate and apply purchase money to the use and benefit of persons other than the vendor, to wit: his creditors; and if the law be that “ any binding appropriation of it (purchase money) to a particular use, by any writing whatever, is an assignment ” — upon what theory can we reach any other conclusion than that the paper, now under consideration, amounted to an assignment ?

Can it be said, however, that even if the paper amounts to an assignment it is executory only and revocable at the will of the assignor, thus leaving it in his power to reinvest himself with the full ownership of the fund ?

As already stated there was a good consideration to support his act in transferring this money to a trustee for the use of the persons named who were creditors. In Watson v. Bagaley, 12 Pa. 164, Chief Justice Gibson, after stating the question raised as to the power of the maker or assignor to revoke the paper held to amount to an assignment, says : “ The solution of it is that a letter of attorney is not revocable after it has been executed; and here the money was collected and ready for distribution according to the term of the trust. The services of the trustees, in the execution of it, was a consideration for an agreement which would have prevented the donor of the power from retracting it had he been disposed to do so. The consideration of trouble was certainly as potential as the trifling pecuniary one inserted in formal assignments.”

In the present case we not only have the trustee accepting the trust, with the money in his hands ready for distribution according to its terms, but the agreement contains an express assumption by him of all the debts that were liens, amounting to about $1,200, thus adding his personal liability to the security previously held by the lien creditors. We also know from the record that the trustee has already in part executed the trust by paying to the present plaintiffs the share due to them under the terms of the assignment. True, the mere acceptance of this money does not estop them pursuing any other remedies which, as creditors, they may have because they stipulated it should not do so. But it would estop the assignor, on whose rights they must stand, from revoking his assignment if he otherwise had the right to do so. We cannot think, under the conditions shown by the record to have existed when the judgment was entered, the defendant therein could have revoked or repudiated his agreément and maintained an action against the trustee to recover, for his own use and benefit, the unpaid purchase money or any part of it. If he could not it is difficult to see how the present plaintiffs, whose rights rise no higher than those of their judgment debtor, have acquired any right to a larger share in the fund than was given to them by the terms of the assignment made by the vendor.

If in reality there be, as contended, any uncertainty in the language of the instrument as to the identity of the beneficiaries thereunder or the exact amount to be received by each, or the conditions, if any, upon which they are to receive it, these are questions that primarily interest the trustee. We can only assume at this time, as the plaintiffs must, that the trust will he fairly and properly executed according to its terms. If indeed, when so executed, there remains in the hands of the trustee any portion of the fund which the vendor, were it not for the judgment of the plaintiffs, could rightfully claim and recover, then, as to that portion of the fund, the lien of the judgment would attach and the plaintiffs would secure it. For the reasons indicated we are of opinion the court below was wrong in entering judgment for the plaintiffs.

Judgment reversed and judgment on the case stated is now entered in favor of the defendant; the costs of this appeal to be paid by the appellees.


author: Head, J.,

text:
    Foster Township Road Tax.

      Constitutional law — Delegation of legislative power — Local and special legislation — Road law — Work tax.

    The proviso of section 2 of the Act of April 12, 1905, P. L. 142, providing for the abolition of the work tax on roads at the election of the taxpayers in a township, does not violate article II, section 1, of the constitution, which provides that “the legislative power of this Commonwealth shall be vested in a General Assembly which shall consist of a Senate and a House of Representatives;” nor does it violate article III, section 7, of the constitution, which declares that “the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.”
    Argued April 19, 1906.
    Appeal, No. 42, Oct. T., 1906, by E. B. Sage et al., from order of Q. S. McKean County, Dec. T., 1905, No. 24, dismissing petition for an election under act of April 12, 1905, In the Matter of the Petition of the Citizens of Foster Township.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Petition for an election under Act of April 12,1905, P. L. 142.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      Thomas F. Richmond, with him E. II. Jack and Sheridan Grorton, for appellant.
    — A subsequent statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contained no express words to that effect, must, on the principles of law, as well as in reason and common sense, operate to repeal the former: Commonwealth v. Cromley, 1 Ashm. 179; Nusser v. Com., 25 Pa. 126; McCleary v. Allegheny County, 168 Pa. 578; Com. v. Grier, 152 Pa. 176 ; Martz’s Election, 110 Pa. 502 ; Johnston’s Est., 33 Pa. 511; Com. v. Meanor, 167 Pa. 292.
    The act of 1905 having expressly repealed the act of 1834, and it being a general act applying to all townships of the second class within the commonwealth, we contend that the right to work out the road tax is necessarily taken away from the taxpayers and it can only be taken advantage of when a township, by a majority vote of its electors, say that they desire to give to the taxpayers the right to work out all or a portion of their road taxes.
    October 23, 1906:
    The act provides a new and complete system; it provides how taxes shall be levied, assessed and collected in cash, and we are unable to see how there is any delegation of legislative authority in any portion of the act: Lock’s App., 72 Pa. 491; McGonnell’s License, 209 Pa. 327.
    We submit that the case of Frost v. Cherry, 122 Pa. 417, does not rule, or even apply to the case at bar, for the reason that the act of 1885 could only become effective after a vote of the people in each county; while the act of 1905 became a complete act and in full force the moment it was signed by the governor, and only left to the people the right to change the system of taxation for working the public roads at the pleasure of a majority of the taxpayers of each township, and in nowise delegated or authorized the taxpayers to determine whether or not the act of 1905 should become a law: Com. v. Middleton, 210 Pa. 582; Com. v. Guthrie, 203 Pa. 209; Com. v. Brown, 210 Pa. 29; Lehigh Valley Coal Co.’s App., 164 Pa. 44; Middletown Road, 15 Pa. Superior Ct. 167.
    No appearance nor paper-book for appellee.
   Opinion by

Head, J.,

On December 11, 1905, a petition, signed by more than twenty-five taxpayers of the township of Foster in the county of McKean, was presented to the court of quarter sessions of that county, praying the court to order an election, at the coming February municipal election, to determine whether the road taxes of that township should be thereafter paid wholly in cash. The authority to make such an order is alleged to have been conferred on the several courts of quarter sessions by the proviso to sec. 2 of the Act of April 12, 1905, P. L. 142.

A rule to show cause was granted, but the court, - in an opinion filed on January 15, 1906, discharged the rule and dismissed the petition, holding that the proviso above referred to, under which the proceeding was begun, was unconstitutional and void. .

The first ground on which the learned court below bases the conclusion reached is that the provision of the act authorizing an election,, to ascertain the will of the people as to whether the taxes should be paid in one form or another, and then providing' that, contingent on the fact thus ascertained, the taxes shall be paid- wholly in cash, or partly in cash and partly in work as at present, is a clear delegation by the legislature of its legislative powers and, therefore, a violation of article II, sec. 1, of the Constitution, which provides : “ The legislative power of this Commonwealth shall be vested in a general'assembly,, which shall consist of a senate and a house of representatives.”

Fortunately for us the exposition of this highly important constitutional provision by our Supreme Court has been so thorough and exhaustive as to leave for us only to apply, to the legislative enactment now before us, the principles already enunciated by the highest authority for our guidance. Measured by the standards thus furnished, let us glance at the act of 1905 and seek to discover wherein can be found any attempt, on the part.of the general assembly, to abdicate and delegate to another the legislative power which can be constitutionally exercised only by itself. The act is an important and comprehensive piece of legislation. By its terms it applies to every township of the second class in the state, thus bringing within its scope by far the greater portion of the territorial area of the entire commonwealth: It has for its object an improvement in the methods of constructing and maintaining those highways which ought to be such important factors in the speedy dissemination of intelligence among the people, and the rapid and easy transportation of their persons and property, without which, a civilized municipal community can no more thrive and flourish, than could a human body without veins and arteries for the prompt transmission of the blood from heart to brain and limbs.

Did not the act, upon its approval, by the governor, become immediately effective in every township of its class throughout the commonwealth ? Did it need or invite the aid of any other power or. authority to make -its commands and prohibitions binding and obligatory on every municipality, officer or taxpayer within the sweep of its provisions ? Did the law come from the hands of its creator, the legislature, in a state of suspended animation, thus to continue, until some affirmative act of Foster township or its taxpayers gave to it the force and vitality of a living enactment ?

It was not the purpose of the petition in this case, it could not have been the result of the order therein prayed for, to bring Foster township for the first time within the purview of the act of 1905. Without the filing of the petition that township, like all others of its class, must have lived, moved and acted in accordance with the legislative command. At the February election of 1906 it must have chosen the road officers designated by the statute; it could not have lawfully selected any others. They would have been clothed with all the powers conferred by the act and could have exercised none other. The same road taxes must have been levied, collected and expended in Foster township as in all others of its class, and in all these respects the legislative will, as expressed in the statute, and it alone, would have guided, controlled and harmonized all.

If, then, it was not the purpose of the petition in this case to bring the township within the operative force of the statute, it is equally clear it could not have been its object to nullify the act, or any of its provisions, within the same limits.

The sovereign power of the state had placed the yoke of the legislative will upon all townships of the second class without the aid or assistance of any other authority, and only to that same supreme power could an appeal be successfully made for relief from the obligations thus imposed.

What, then, was the aim of the petition, what the result expected from the proceedings thus instituted ? For many years, under our laws, there have been two recognized methods in which road taxes may be paid, viz: wholly in cash, or partly in cash and partly in work done at the instance and under the direction of the supervisor. Each individual taxpayer exercised the right of adopting one or the other of the alternative modes of paying. But it would hardly be contended he conferred this right on himself. He simply determines which of two methods of payment, each of which has been declared by the legislature to be lawful, trill promote his welfare or converbenee. So the act of 1905 still recognizes the same two methods of payment of road taxes. It still leaves to the taxpayer-the ascertainment and determination of a fact, viz: his own preference as to the manner of payment, but does not leave him any control over the consequences that follow the ascertainment of the fact. These are defined and declared by the law. The act of 1905, instead of leaving to each individual in every case, the final expression of his preference as to the manner of paying his road taxes, provides the machinery by which the will of all the taxpayers in a township, on the same subject, may be ascertained in bulk. With the expression of the common will as to this single fact every power given to the voters has been fully exercised. No matter which method of payment the popular will may favor, the contingency had been foreseen and provided for in the act as it came from the legislature. It is difficult to see in this anything resembling a delegation to any person or persons in any township of the power to legislate ; to add to or to take from the body of the statute a line or letter; to extend its operation over or paralyze its force within a single foot of territory.

We regard Locke’s Appeal, 72 Pa. 491, as decisive of this question. The reasoning of the opinion in that case is so elevated and convincing, its illustrations so apt and'striking, its language so luminous and forceful that, to our minds, the conclusion reached is unassailable. We can discover no intention on the part of the court to depart from the position there taken. In the recent case of McGonnell’s License, 209 Pa. 327, the court, construing the Act of April 28, 1899, P. L. 68, and speaking through Mr. Justice Bkown, said : “ We are relieved from any further discussion of the question before us, for it is directly decided in Locke’s Appeal, 72 Pa. 491, and it would be a work of supererogation to attempt to say anything more, in view of what is there said.” See also O’Neil v. Ins. Co., 166 Pa. 72.

A careful comparison of the act of 1905 with the several statutes that have been declared unconstitutional by the courts, in a line of cases familiar to the profession, would easily reveal, we think, the. distinction between them, and demonstrate that the conclusion here reached is not controverted by any of the decisions, but it would unnecessarily lengthen this opinion. Standing, as we do, on Locke’s Appeal and the reasoning that supports the judgment there rendered, we cannot escape the conclusion that the learned court below was in error in holding that the proviso to section 2, of the act of 1905, amounts to a delegation of legislative authority and was, therefore, unconstitutional and void.

But the learned court also held the proviso in question to be an abortive legislative effort because it was in conflict with sec. 7 of article III of the Constitution, which declares that “ the General Assembly shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.”

Since the adoption of the new constitution the right of the legislature to properly classify subjects of legislation has been frequently declared and is now firmly established. When this right has been exercised and a legitimate classification made, a statute that applies equally to every individual, municipality or member of a designated class, is not a local or special, but is a general law. By the Act of April 28, 1899, P. L. 104, all of the townships of the state were divided into two classes called respectively townships of the first and second class, the basis of classification adopted being density of population. This act has been decided to be constitutional and the classification thereby created to be a proper exercise, of legislative power: Com. ex rel. Jones v. Blackley, 198 Pa. 372; Coal Township, 16 Pa. Superior Ct. 260; Phila. & Reading Coal & Iron Co.’s Petition, 200 Pa. 352. The legislature may therefore freely enact laws applicable only to townships of the second class, and such statutes cannot be successfully assailed, on that account, as local or special legislation. If we are to determine the scope of a legislative act solely from a consideration of the language used in the statute itself, there would be no room to doubt that the act of 1905 embraced, within its provisions, every township of the second class in the commonwealth. It so expressly declares. But an act constitutionally sound, if judged only by the general terms employed, may nevertheless contain the seeds of its own destruction, if it clearly appear that, as a result of its practical operation, some members of the class affected may be excluded or may exclude themselves from the obligation to obey its commands. In such case we would have an. act general in name, special in fact. It would be special legislation under the attempted disguise of a general law. Of all forms of special legislation this is the most vicious : ” Scowden’s Appeal, 96 Pa. 422.

Can it fairly be said then that, by the exercise of the privilege conferred on them by the proviso in question, the voters of any township of the second class in the state may bring about the result that they live under one law, whilst in all other townships of the same class where no election was had, another and different law prevailed ? It is true the act uses the expression that they may “ change the system of taxation for working the public roads.” If by this there was given to the voters of one township the right to change from a system of taxation devised by the legislature to one devised by themselves, then indeed we would have legislation both local and special, as each township could be relied on to produce the necessary crop of statesmen and lawmakers. But no such right is conferred. As we have attempted to show, the law recognizes for every township two lawful methods of paying the road taxes. In every township the one method or the other is prescribed dependent on the ascertainment of a certain fact. That fact ascertained in one way, one method of payment follows as the direct result of the legislative will formally expressed; ascertained in the other way or not ascertained at all, and the other method of payment follows in the same way. If such a result must destroy every statute of which it may be predicated, the wheels of government would be blocked. We have already seen that under long-existing laws one taxpayer avails himself of the supposed privilege of paying his road taxes partly in cash and partly in work; his neighbor prefers to pay wholly in cash. Thus each may pay in a different way. But both ways are prescribed by a law which has never been thought to have lost its character as a general law on that account. One citizen pays his ordinary taxes within a limited number of days after their assessment and thus secures a substantial reduction in the amount paid; his neighbor, not availing himself of that privilege, is required to pay the full amount assessed. Thus it happens, in actual practice, that one pays at a less rate on his valuation than the other. But both live under the same law, and it is a general, not a special law, notwithstanding this diversity in the results of its practical operation. 'But why extend the argument or multiply the instances that illustrate it.?

In Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, the Act of June 12, 1893, P. L. 451, was declared to be constitutional. That act authorized any one or more taxpayers many township to contract with the township authorities for the maintenance of the roads therein and the payment of salaries to the road officers, thereby preventing the levy and collection of any road tax in such township. Naturally enough in townships where the area was' small and a few individuals or corporations were heavy taxpayers, the privilege thus extended to all would be accepted; in other townships where different conditions prevailed it would be declined and the old plan followed. By reason of the lack of uniformity in the method of maintaining the public roads in the different townships that would thus probably or possibly follow the practical operation of the act, it was attacked as a violation of see. 7, art. Ill of the Constitution. In upholding the validity of the act Mr. Justice Dean says: “ But there is not a single township in the state which does not come under this law. If the act had been the first one passed bn the subject, and had enacted that, in all the townships of the state, public roads should be made and kept in repair by the supervisors : (1) By the assessment of a money tax, collected and expended by them ; (2) or by the labor of taxpayers of each township to the value of their tax; (3) or by contract of supervisors with a taxpayer or taxpayers — the law would, unquestionably, have been general. But, there being three different methods of doing the same thing, the roads might have been made and repaired in three different ways by three adjoining townships. The duty of each township would have been the same, to make and repair the roads within its boundaries ; the object of the law, with respect to each, would have been the same, to secure reasonably good roads. That any township might adopt any one of three lawful methods to effect the general purpose, it seems to us, could not change its general character. Here, not a single township is excluded from the operation of.the law because of any local peculiarity.' That taxpayers will differ in opinion as to benefits from it, and, in consequence, some townships will adopt the new method, while others adhere to the old, is not a local result, but merely an exhibition oí the tendency of the human mind to reach different political conclusions from the same facts.”

We think it would puzzle the wit of man to distinguish this case, in principle, from the one before us. It was followed by this court in Middletown Road, 15 Pa. Superior Ct. 167, and has never been departed from in any case brought to our attention. We again follow it, and in doing so necessarily reach the conclusion that, in enacting the statute we have been considering, the legislature did not go outside its constitutional powers.

We do not regard the case of Frost v. Cherry, 122 Pa. 417, as in conflict with any of the cases cited or the conclusion herein reached. The Act of June 23, 1885, P. L. 142, there held to be unconstitutional, contained but a single enacting clause, viz: the first section providing for a repeal of the act of 1700, commonly known as the “Fence Law.” If by the terms of the act that section did not become operative, solely by the force of the legislative will, then there was no complete exercise of legislative power by the general assembly. If it expressly required and invited the aid and co-operation of some auxiliary power before it became effective on any member of the class designated, then, according as such aid should be given or withheld in the several townships, there would or would not be an act of assembly in force. Practically viewed such legislation could result in nothing but accomplishing what the constitution forbade. “ But the same shall not take effect in any county of this commonwealth, until it has been ascertained that the provisions thereof are deemed expedient and desired therein, by an election as hereinbefore provided,” is the language of the death warrant which the legislature itself wrote into the act of 1885. We cannot make more plain the distinction we have sought to draw throughout this opinion than to place, side by side, the acts of 1885 and of 1905 and note their essential structural differences. In these differences we find the evidence that the latter is free from the vice that properly condemned the former. “ The act was passed for a wise purpose. But whether a wise law or not, the courts have no right to declare it invalid unless it clearly violates some constitutional provision. Where none of the reserved rights of the people of the commonwealth are involved, ‘ to doubt is to be resolved in favor of the constitutionality of the act: ’ ” Middletown Road, 15 Pa. Superior Ct. 167.

The decree discharging the rule is reversed, the. petition is reinstated and a procedendo awarded.


author: Rice, P. J.,

text:
    Marshall, Appellant, v. Reed.
    November 12, 1906:

      Principal and agent — Two employments — Compensation.
    Where one acts in a dual capacity as agent, or servant for two separate employers, nothing less than clear proof of consent of both employers, not merely to double service, but to the double compensation, will suffice to validate an express contract with the second employer.
    Argued April 11, 1906.
    Appeal, No. 95, April T., 1906, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 653, on verdict for defendant in case of James Marshall v. James H. Reed.
    Before Rice, P. J., Porter, Henderson, Morrison and Head, JJ.
    Affirmed.
    Assumpsit to recover commission for the sale of real estate. Before Kennedy, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in giving binding instructions for defendant.

      William M. Sail, for appellant,
    cited: Early v. Rolfe, 95 Pa. 58.

      David A. Reed, with him Reed, Smith, Shaw Sp Beal, for appellee,
    cited: Everhart v. Searle, 71 Pa. 256; Penna. R. R. Co. v. Flanigan, 112 Pa. 558 : Rice v. Davis, 136 Pa. 439 ; Linderman v. McKenna, 20 Pa. Superior Ct. 409.
   Opinion by

Rice, P. J.,

It appears from those averments of the plaintiff’s statement of claim which were not denied by the affidavit of defense, that the defendant was trustee of the separate estate of Emma L. Marshall, wife of George Y. Marshall, and as such entered into an agreement in writing giving the plaintiff (who was a real estate agent) the option to purchase certain real estate therein described for $35,000; that contemporaneously with the execution of said paper, and as part of the same transaction and contract, Emma L. Marshall, who was acting for the defendant in making the promise, and had the defendant’s express authority therefor, gave the plaintiff a promise in writing that if the option resulted in a sale of the property he should be paid a commission of three per cent on the price accepted by the defendant ; that the option was subsequently amended by reducing the price to $34,000, changing the time of payment and adding other real estate at a price of $900; that still later the plaintiff exercised the option, and pursuant thereto the defendant conveyed the land to the Oakmont Land Company, and received as the purchase price $34,900. It further appeared upon the trial of the case that in the transaction or contract above referred to, of which the option and promise to pay commissions formed a part, it was contemplated that the plaintiff should act for the defendant in obtaining a purchaser of the property, and that the option was given with that end in view. This action was brought to recover a commission of three per cent on said sum of $34,900. The defense was, that at the time of the sale, as well as at the respective dates when ■the option was given and amended, the plaintiff was acting as the agent of the Oakmont Land Company, without the knowledge of the defendant, under an agreement whereby he was to receive a commission for procuring for that company the real estate in question. The court gave binding instructions for the defendant, and in an opinion filed refusing a new trial the learned judge said: “To permit a recovery in this case would violate the well-known principle that an agent for the purchase of property cannot at the same time act as agent for the seller, and thus entitle himself to compensation from both vendor and vendee, a principle founded on the declaration that ‘No man can serve two masters.’” The appellant’s counsel does not quéstion this statement of the general principle, but contends that it is not applicable to the facts of the case. This suggests a review of the evidence.

One of the promoters and organizers of the Oakmont Land Company, who acted for the company in the purchase of the property, testified that prior to the date of the paper above referred to, he employed the plaintiff as the agent of those for whom the witness was acting to search for property suitable for the purpose they had in view, and 'to negotiate for its purchase ; that he told the plaintiff what they wanted and “ asked him to look over that whole country there,” “ and stated to him distinctly that he was to represent us in the matter, and that we would pay the commission ”; that he acted as their agent throughout, and all the negotiations were had through him; and that after the purchase was consummated he demanded a commission, which after some discussion was fixed by agreement at two per cent. This testimony, so far as it relates to the employment of the plaintiff as agent for the Oakmont Land Company, and as to his acting as such, is supported by the testimony of the attorney who represented the company in the transaction, and does not conflict materially with the testimony of the plaintiff. While he denied that the subject of commission or compensation to be received from the Oakmont Land Company -was mentioned prior to the purchase, he did not deny that he was employed to secure land for the purposes of the company, as alleged by the other witnesses; on the contrary, he testified as to the services he rendered for the company in that behalf, and stated distinctly that in obtaining the option above referred to he was not acting for himself. He said, “ I would convey from his side to the other side what he was willing to take, or wanted to get, and when the other side thought that was too much I would go back, and see whether I could bring them together again. I finally succeeded in get-' ting them together. One side wanted to get all it could, and the other side wanted to get it as cheap as it could; that was just about the matter.” We quote further from his testimony: “ Q. You say that Mr. George Marshall knew all along that this option was not for you, did he? A. Yes, sir, he did. Q. He knew you were not going to be the purchaser yourself ? A. Not only that, but he knew who the purchaser was. Q. There was never any intention that you should be the purchaser, was there? A. No, sir.” From the uncontradicted testimony, taken in connection with the plaintiff’s express admissions, it is apparent that he was employed by the Oakmont Land Company to secure land for its purposes; that pursuant to this employment he entered into the negotiations with the defendant which resulted in his obtaining the option above referred to, and the consummation of the purchase, and that the fact that he was thus acting for the Oakmont Land Company was not known to the defendant until after the sale was completed. “ Where a custom exists, parties are presumed to deal in view of it, and where no agreement is made as to commissions, that they agree to pay the customary rate. In the absence of such custom, and of any agreement as to rate, the measure of compensation would be the value of the services rendered: ” Potts v. Aechternacht, 93 Pa. 138; Hollis v. Weston, 156 Mass. 357 (31 N. E. Repr. 483). The testimony precludes a finding that either party supposed that the plaintiff’s services in securing land for the company were to be rendered gratuitously. He undertook to act for the company in a matter within the line of his business, and rendered services pursuant to his employment for the company, which, if he had not subsequently undertaken to act for the defendant *in obtaining a purchaser, would have entitled him to recover compensation in an action at law. This being so, the mere fact that there was no express agreement between him and the company as to his compensation would not affect the question for decision; therefore the court committed no error in not submitting the dispute upon the subject of such agreement to the jury.

In the leading case of Everhart v. Searle, 71 Pa. 256, Chief Justice Thompson stated the question for decision as follows : “ The case before us is rather novel. In involves a question whether the same person may be an agent in a private transaction for both parties, without the consent of both, so as to entitle him to compensation from both or either. We have the authority of Holy Writ for saying that ‘no man can serve two masters; for either he will hate the one, and love the other, or else he will hold to the one and despise the other.’ All human experience sanctions the undoubted truth and purity of this philosophy, and it is received as a cardinal principle in every system of enlightened jurisprudence.” Upon the facts thus far referred to, the question presented for decision is precisely ‘the same, and the principle which prevented a recovery in that case would prevent a recovery here.

We come, then, to the question whether under the special circumstances the defendant is precluded from invoking the rule. As already stated, it is not pretended that the defendant knew that the plaintiff was acting for the purchaser until after the sale, but it is claimed that George Marshall knew and assented to it, and also that there was an understanding between him and the plaintiff that the latter was to get two per cent commission from the purchaser, if he could. But apart from George Marshall’s denial of this assertion, and of the indefiniteness and vagueness of the plaintiff’s testimony upon the subject, there is the conclusive objection that the authority of George Marshall to act for the defendant in assenting to the plaintiff’s employment by the purchaser, was not proved. The nearest approach to proof of this fact is the plaintiff’s testimony as to a conversation which took place at the time the option was given. He says that he and the plaintiff went up to the defendant’s desk, “ and George said: ‘ Now, Judge, we have got to an agreement on this matter, and we are going to give Jim this option at this price, and we are going to allow him 3$;’ and the Judge said: ‘Well, any agreement that you make will be carried out by me.’ ” The two subjects of agreement as to which the defendant is alleged to have given his assent were, first, the price; second, the plaintiff’s commission. There is no warrant for a finding that he assented or intended to assent to any arrangement that George Marshall might make with the plaintiff whereby the latter could act for the purchaser, and receive compensation from both sides. Furthermore, the assent which the defendant gave was not to anything that George Marshall might agree to, but to what George Marshall and his wife, who was the owner of the property, might agree to. This is apparent, we think, not only from this particular extract from the plaintiff’s testimony, but it is consistent with his previous testimony that “ Judge Reed said that anything that George and Mrs. Marshall would agree to he would, as trustee, carry it out.” There is not the slightest testimony that Mrs. Marshall ever assented to the plaintiff’s acting for both sides, and receiving compensation from both. The law upon the subject is free from difficulty. In Pennsylvania R. R. Co. v. Flanigan, 112 Pa. 558, the point decided, as stated in the syllabus, was as follows : “ Where one acts in a dual capacity as agent, or servant' for two separate employers, nothing less than clear proof of consent of both employers, not merely to double service, but to the double compensation, will suffice to validate an express contract with the second employers.” In the case of Rice v. Davis, 136 Pa. 439, Mr. Justice Stebbett said: “ Conceding, for the sake of the argument, that it would be competent for persons, circumstanced as the parties in this case were, to waive or suspend by mutual agreement the operation of a rule of public policy, it cannot be successfully contended that such agreement may be inferred- either from knowledge of the fact that such rule has been violated, or from silence, or failure to dissent at the time, or either of these combined. Nothing short of clear and satisfactory proof of an express agreement to do so should be regarded as sufficient for that purpose.” In Finch v. Conrade’s Exr., 151 Pa. 326, Justice Stebbett, after citing and quoting from the above eases, said: “ Such rules of public policy should be rigidly enforced unless it clearly appears that the parties for whose protection they were intended have, with full knowledge of all the circumstances, agreed to waive their rights thereunder.” The principle of these 'cases has been enforced in numerous decisions, amongst which may be mentioned Cannell v. Smith, 142 Pa. 25; Addison v. Wanamaker, 185 Pa. 536; Wilkinson v. McCullough, 196 Pa. 205; Linderman v. McKenna, 20 Pa. Superior Ct. 409. A further citation of authorities is unnecessary. There is mo clear and satisfactory proof that the defendant delegated to George Marshall and his wife authority to waive this rule of public policy, and no proof whatever that it was waived by her. Therefore the court was clearly right in giving binding instructions for the defendant.

Judgment affirmed:


author: Peb Oubiam,

text:
    Commonwealth ex rel. v. Hutton.
    November 12, 1906 :

      Appeals — Diminution of record — Mandamus—Return of trial judge.

    Where a petition for a mandamus in an appellate court contains a suggestion of a diminution of the record, and a special return of the trial judge shows that the record had been fully and perfectly returned, and contained a complete transcript of all papers actually filed in the cause, the court will discharge the rule for mandamus, and refuse the application to take depositions in opposition to the return of the judge below.
    . Appeal, No. 106, Oct. T., 1906, from judgment of Q. S. Phila. Co.
    Rule to show cause why an alternative mandamus should not issue.

      F. T. Tobin, for the rule.

      John G-. Johnson, contra.
   Peb Oubiam,

The appeal, in aid of which this mandamus is asked, is.from an order awarding an attachment for contempt in a habeas cor-pus proceeding in which the appellant was respondent. . The appellant had not been arrested upon the bench warrant at the time the appeal was taken; nor has-he since been arrested, or submitted himself to the judgment of the court. The prayer of the petition is that a mandamus issue directing the judge before whom the proceeding was pending to return. to this court' two certain affidavits alleged to have been filed in .-the-court below, also a certain- paper containing exceptions .to-rulings of the judge, which paper is alleged -to have been, filed with the clerk on May 10, 1906. It is to be observed that the order awarding the attachment was made on the preceding day. In response to the rule to show cause why an alternative writ of mandamus should not issue, the judge returns that the affidavits referred to never were filed, nor permitted to be filed in the cause, but on the contrary he refused to permit them to be filed, and that they form no part of the record. As to the alleged exceptions, he returns that he is informed by the clerk that the attornejr delivered to the clerk a paper entitled exceptions to his rulings in said cause, but that the clerk declined to file the same because they had not been allowed ‘ by him as the judge who tried the said cause in accordance with the practice of the court. He further says, such exceptions were not taken at the hearing of the cause, were never presented to him by the attorney for allowance, and were never allowed by him. He concludes as follows: “ I gave no instructions to the clerk of the court of quarter sessions as to the making up of the record for your honorable court in this cause. The record in this cause as certified to your honorable court contains a complete transcript of all papers actually filed in said cause.”

The well-established practice, where it is alleged that the record as returned is incomplete, is to suggest diminution of the record, and pray for a certiorari to the court below to bring up the part of the record which is missing. This practice has not been followed in this case, but the departure from it is not such as to permit a different disposition of the present application from what would be made if the ordinary practice had been duly followed. We have in substance a suggestion on the part of the appellant of diminution of the record, and a special return by the judge, in addition to his return upon the writ originally issued, that the record has been fully and perfectly returned, and that there is nothing forming part of the record which was not sent up with the return to the original writ. This being so, the disposition which ought to be made of this rule to show cause is perfectly plain. In the case of Bassler v. Niesly, 1 S. & R. 472, it appeared that on the certiorari upon a suggestion of diminution directed to the president of the court below, he stated certain facts and then “ submitted to the judges of his court whether certain matters ought to be returned and certified as part of the record.” The Supreme Court declined deciding the ■ question thus submitted to them by the judge below, and issued a certiorari in common form, directing the judge below to determine, and make such return as was proper under the circumstances, but Tilghman, Chief Justice, said that if the president had made the return that there was no such matter remaining of record as that which was mentioned in the suggestion, he should have .considered it altogether improper to make further inquiry. The precise question was decided by the Supreme Court in the case of Flagg v. Searle, 31 Legal Intelligencer, 101, decided in 1874. There, upon a suggestion of diminution of record, a certiorari issued to the judges of the court below setting forth the part of the record alleged to be wanting, and commanding the judges “ if so be ” to send the residue, etc. To this certiorari the president judge made specific return that all the exceptions had been certified to the court, and that the record was full and complete. The appellant thereupon petitioned for a mandamus, substantially as was done in this case, but this was refused, the court declaring that the return must be taken as conclusive in the -proceedings then before the court. This is in accordance with other cases cited in the opinion of the court; see also Haines v. Commonwealth, 99 Pa. 410, 421. It follows that the present rule must be discharged, and also that the application to take depositions in opposition to the general and special returns of the judge below, must be refused.

The rule to show cause is discharged.


text:
    Rife v. Middletown, Appellant.

      Pleading — Statement—Trespass—Negligence.
    Where a statement in trespass contains clear and concise averments of the acts of negligence of which complaint is made, the plaintiff is not debarred from showing in the statement other items which are the natural results of such negligent acts.
    If the defendant regards -the statement of claim as insufficient, he may demur, or apply to the court for a rule to show cause why more specific statement should not be filed. If he joins issue, goes to trial on the statement as filed, and the trial clearly shows that he was prepared to meet the testimony of the plaintiff as to the damages resulting from the nSgligence complained of, he cannot thereafter complain of the statement.

      Practice, C. P. — Continuance—Discretion of court.

    A motion for a continuance based upon the plea of surprise, appeals ordinarily to the discretion of the court.

      Municipalities — Obstruction in street — Negligence—Notice.
    A municipality cannot allow a dangerous obstruction in a street to exist for any considerable time, and then say it is exempt from liability, or that it had no notice, or that it had no knowledge. It is bound, after a reasonable time, to know, and if it is a defect, to remedy it.
    In an action against a borough to recover damages for injuries caused by water, it appeared that the borough had substituted pipes for an open stream, and it was averred that these pipes were insufficient to allow free passage of the water from above which ordinarily came down the course of the stream. It was also averred that the defendant had erected a wooden grating or crib above the entrance to the pipes, against which it carelessly and negligently allowed brush, dirt and débris to gather and accumulate so as to fill up the stream, clog the pipes, and dam back the water upon plaintiff's land. Held, that independently of any error of judgment in the matter of the substitution of the pipes for the open stream, there was sufficient to carry the case to the jury on the distinct charge of negligence in the manner in which the pipes were cared for.'

      Waters — Act of God — Negligence—Concurring negligence.

    In an action of trespass against a borough to recover damages for injuries resulting from alleged negligent acts of the borough in connection with a water course, where there is evidence that the damage took place at the time of an unusually high flood, it is not error for the court to charge that “the rule of law is that, although an act of God entails' no injury upon anyone in contemplation of law, yet if man contributes towards it, it is man alone that is responsible.”
    Argued March 15, 1906.
    Appeal, No. 3, March T., 1906, by defendant, from judgment of C. P. Dauphin Co., March T., 1904, No. 269, on verdict for plaintiff in case of John W. Rife and Jacob E. Rife v. Middletown Borough.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Trespass to recover damages for injuries from water. Before Weiss, P. J.
    The court charged in part as follows:
    It is also said that an unusually high flood last March was the cause of the water backing from the river up the channel, tip the creek, where this water was accumulated and flowed against and through that tunnel across Lawrence street and up the stream, and that its swirling then and its running down with some degree of turbulence, as the waters in the river subsided, was the cause ; and you will ascertain whether there is any evidence to show that that is so. There is some, and you will consider whether it is as it is claimed. That is said to have been an unusually high flood, higher than the river has been accustomed to be. That is what is called an act of God; and if that was the sole agency which at that time was the cause of the injury and damage to the land of the plaintiffs, then no man is responsible, for a visitation sent us of that kind, if it was a large one — and I assume that it was an unusually high flood — -works ■ injury to nobody. If, however, there was that flood and the waters backed up underneath the tunnel or underneath the causeway at Lawrence street, and aided in doing the damage, but the waters coming from above also contributed to the injury, so that there was a conjuncture of what the law calls an act of God and the act of man, man alone is responsible, although the extraordinary high water in the river may have contributed towards it. The rule of law is that, although an act of God entails no injury upon anyone in contemplation of law, yet if man contributes towards it, it is man alone that is responsible, and you will consider how that was in this case. Were the waters dammed up from the river along and up this channel, .underneath the causeway, up the stream along the lands of Rife or not ? If they were not there is no need to consider anything further, because there is no question then as to whether it -was the high water or whether there was a conjunction of the high water from the river and the act of man. It is only if you find that the water caused it, either by itself or in conjunction with the carelessness of man — the borough in this case — that you will consider it. If it was the back water from the river wholly, there is no liability. If it was not wholly, but the river contributed towards it and the waters flowing down also contributed towards the injury that is complained of here, then the defendant is, or may be, liable.
    Mr. W. M. Iiargest: May I correct the court so there may be no' misapprehension? Of course the court means to limit that to that one occasion in March.
    The Court: I mean by that, the injury which is complained of at the time — in March, 1904 — when the. waters are said to have backed up from the river. What was theretofore done, aside from the injury on this occasion said to have been caused by the river, is wholly or may wholly be the fault of the defendant, arid I have already stated to you, I think, how that is, and the rule by which it is governed. [9]
    1 Defendant presented these points :
    3. The jury can award no damages resulting from the March flood, 1904, known as the river flood. Answer: This is affirmed, with the qualification respecting the possible contribution toward the injury by the defendant itself, and with that qualification the point is affirmed. [10]
    4. The plaintiffs cannot recover for any item of injury which has not been set forth in their statement of claim. Answer : That is refused. There is no necessity to set forth all the items naturally arising out of the act of the defendant if it is guilty of negligence. [11]
    5. The plaintiffs cannot recover on account of any alleged injury to the wall, as the defendant had no notice, direct or indirect, that any claim was made for any such alleged injury, and had no notice that any such injury had ever occurred. Answer ; The point is refused.. [12]
    6. The plaintiffs can only recover on the items of alleged injury mentioned or referred to in their statement of claim, viz.: the bridge, the fruit trees, tilling of the soil and pollution of the well. There is not the slightest reference to any other injury. Answer.: That is refused. [13]
    Verdict and judgment for plaintiff for $400. Defendant appealed.

      Errors assigned among others were (9-13) above instructions, quoting them.

      Paul A. KunJcet, for appellant.
    — The statement was insufficient: Malcolmson v. Clayton, 13 Moore P. C. C. 198; Wabash, etc., Ry. Co. v. Lynch, 12 Ill. App. 365; Martachowski v. Orawitz, 14 Pa. Superior Ct. 175; Parker v. Lowell City, 77 Mass. 353.
    The instructions as to the extraordinary flood were erroneous: Siegfried v. South Bethlehem Borough, 27 Pa. Superior Ct. 456 ; B. & O. R. R. Co. v. School District, 96 Pa. 65; Helbling v. Cemetery Co., 201 Pa. 171.

      November 12, 1906:

      W. M. Hargest, of Hargest Hargest, for appellee.
    — Where the wrong charged in the statement, by the operation of natural laws necessarily produces a certain result, it is not always essential that such result be specially averred: Martachowski v. Orawitz, 14 Pa. Superior Ct. 175 ; Spigelmoyer v. Walter, 3 W. & S. 540.
    All mere technical defects in a declaration, which might have been reached by demurrer, are cured by a trial and verdict on the merits: East Union Township v. Comrey, 100 Pa. 362 ; Erie City Iron Works v. Barber, 118 Pa. 6; Chapin v. Cambria Iron Co., 145 Pa. 478; Eckert v. Schoch, 155 Pa. 530.
    The question attempted to be raised that the act of God caused the. damage, is disposed of by the cases which counsel for appellant cites : Siegfried v. South Bethlehem Borough, 27 Pa. Superior Ct. 456; Keats v. Gas Co., 29 Pa. Superior Ct. 480 ; Miller v. Buffalo, etc., R. R. Co., 29 Pa. Superior Ct. 515.
   Opinion by

Beaver, J.,

No exceptions seem to have been taken to the rulings of the court complained of in the second, fourth, seventh, eighth and twenty-second assignments of error. They are, therefore, not properly before us and may be disregarded in the consideration of the case. Inasmuch, however, as the same questions are raised by the other assignments of error, the case, as presented by the appellant, will be fully considered.

The first, third, fifth, sixth, tenth, eleventh, twelfth and thirteenth assignments of error raise practically the same question.

'■ The statement sets forth the ownership, in the plaintiffs, of a large tract of land divided into building lots, through which a small natural stream of water runs, which found an outlet under Lawrence street by virtue of an open channel, over which a bridge was carried, which freely allowed the passage of the water which ordinarity came down the course of the stream; that, in 1902, the borough of Middletown carelessly and negligently, without any legal right, and in total disregard of the rights of the plaintiff, took away said bridge and filled ■up said street and put in two small iron pipes for the purpose of carrying the water of said stream under said street; that the said pipes are totally insufficient to carry the water which came to said point during frequent and ordinary rains and the surface water from melting snows, which caused the water to be dammed up and back upon the lands of the plaintiffs; that the defendant, in further disregard of plaintiffs’ rights, carelessly, negligently and unlawfully, built and constructed a wooden grating or crib above the entrance to said two small pipes, against which said defendant has carelessly and negligently allowed brush, dirt and debris to gather and accumulate, so as to fill up the said stream, clog up the pipes and dam back the water upon said plaintiff, so that the water from ordinary rains or melting snows, which naturally comes to said point and which heretofore passed under the said bridge, has been interfered with by the defendant and dammed back upon the plaintiffs’ land; has carried away a bridge which plaintiffs had erected over said stream for ingress and egress to their property, has injured a large number of fruit trees; has interfered with the tilling of the soil and has polluted and damaged a well on the plaintiffs’ premises; that the said defendant has, although repeatedly notified to abate said nuisance, and restore the said water way, neglected and refused to remedy or alter the same, and the plaintiffs have been greatly damaged, and therefore they bring this suit and claim damages in $1,000.

1. The plaintiffs, in presenting their case, offered, and, under the ruling of the court admitting their offers, proved general damages, such as the washing away of the retaining wall of the open stream above the bridge, the removal of which is complained of, the loss of rent of houses damaged by the backing of the water, and various other items not specifically set forth in the statement.

“ The statement in an action for negligence must set forth with particularity the defendant’s acts of which the negligence is predicated, and the cause and nature of the injury; mere general averments of negligence are not sufficient: ” 16 P. & L. Dig. of Dec. 27,222.

The acts of negligence here are very clearly set forth. They are the substitution of two small iron pipes in place of a bridge which allowed free passage of the water from above which ordinarily came down the course of said stream; the erection of “ a wooden grating or crib above the entrance to said two small pipes, against which, said defendant has carelessly and negligently allowed brush, dirt and débris to gather and accumulate, so as to fill up the said stream, clog up the pipes and dam back the water upon said plaintiffs, so that the water from ordinary rains or melting snows which naturally comes to said point and which heretofore passed under the said bridge has been interfered with by the defendant and dammed back upon the plaintiffs’ land.”

This is a clear and concise statement of the acts of negligence complained of. Is the plaintiff debarred, by setting forth in his statement certain specific items of damage, from showing other items which are the natural result of the negligent acts complained of ? This seems to be the main point under this branch of the case raised by the defendant.

In view of the result of the trial, what was said in Baylor v. Stevens, 16 Pa. Superior Ct. 365, in which the same question was raised, would seem to be applicable: “ It (the statement) is certainly concise, if not as specific as it might be. The trial developed the fact that the defendant was prepared to meet all the allegations of the plaintiff. The statement evidently, therefore, furnished him with the information, which it was necessary for him to have, of the ground upon which the plaintiff sought to recover, in order to prepare for and properly present his defense, and this is one of the principal functions of a statement.”

■ If the defendant regarded the statement as insufficient, he could have demurred or he could have applied to.the court for a rule to show cause why a more specific statement should not have been filed. He joined issue and went to trial on the statement as filed and the trial clearly showed that he was prepared to meet the testimony of the plaintiff as to the- damages resulting from the negligence complained of.

Under this branch of the case, it may be well to allude to the several motions made at different times to continue the case on the ground of surprise. The rule of court under which this motion was made is not given. In some of our courts a continuance on the plea of surprise is regarded as equivalent to a matter of right, when the rules governing such a continuance are complied with, namely, an affidavit properly made, setting •forth the grounds upon which the surprise is predicated. There was .nothing of this kind here and we are left to presume that the rules of the common pleas of Dauphin county do not require such an affidavit. Ordinarily, such a motion, based upon the plea of surprise, would appeal to the discretion of the court, and in view of the defendant’s readiness to meet the issue at every point, we cannot say that the trial court failed in the exercise of a sound legal discretion.

2. It is alleged that there was no evidence that the borough had substituted the pipes in question for the bridge which was removed. As to this, we think the court stated the case more strongly against the plaintiff than the facts warranted. The clerk of the council testified from recollection that “ The supervisor reported among other things that he done (sic) was the fixing of or the placing of the sewer pipes across •Lawrence street, later on. Q. You think the supervisor reported the placing of the pipes ? A. Yes, sir.” It is true that this -witness and the plaintiffs themselves fix a different date for the placing of the pipes, but the question was as to whether or not the borough did it. However this may be, it appears that notice was given to the council by one of the plaintiffs of the insufficiency of the pipes to drain the water coming down from above and that there was general acquiescence in the complaint, and an effort was subsequently made to remedy the difficulty. -At all events, as pointed out by the court in the charge to the jury, “ A municipality cannot allow an obstruction of that kind to exist for any considerable time and then say that it is exempt from liability, or that it had no notice, or that it had no knowledge. It is bound, after a reasonable time, to know, and if it is a defect to remedy it, so that whether it appears that the borough placed the pipes at Lawrence street or whether, being placed there and insufficient to carry off the water, they were bound to know that they were there, and if they did not remove them, they are liable, if injury was done to the plaintiffs, in the same manner and in the same way as though they had placed them there.”

But it is strenuously argued by the appellant that, even if the borough placed the pipes there and they were insufficient to carry the water which came down from above, it was an error of judgment and that they are not liable therefor, under the well-known rule lately referred to in Siegfried v. Bethlehem Borough, 27 Pa. Superior Ct. 456. See also Robinson v. Norwood Borough, 27 Pa. Superior Ct. 481; s. c., 215 Pa. 375. Even assuming that the effort to compel a body of water, which failed to vent itself through a space twelve feet wide by three feet high, above the ordinary stage of the 'water, to pass through two pipes two feet each in diameter may be called an error of judgment, the plaintiffs distinctly charged negligence in the erection of a wooden grating or crib above the entrance to the said pipes, against which defendant carelessly and negligently allowed brush, dirt and debris to gather and accumulate, so as to fill up the stream, clog the said pipes and dam back the water upon plaintiffs’ property. Independently, therefore, of the substitution of the pipes for the open stream, there was a distinct charge of negligence in the manner in which they were cared for. The testimony upon this subject was such as to compel its submission to the jury.

3. As already intimated, there is no exception to the ruling of the court as to the admission of evidence in relation to the character of the March flood of 1904, as contained in the eighth assignment of error. The ninth and tenth assignments relate to the instructions of the court in regard to the results of this flood as follows: “ It is also said that an unusually high flood last March was the cause of the water backing from the river up the channel, up the creek, where this water was accumulated and flowed against and through that tunnel across Lawrence street and up the stream, and that its swirling then and its running down with some degree of turbulence, as the waters in the river subsided, was the cause; and you will ascertain whether there is any evidence to show that that is so. There is some, and you will consider whether it is as it is claimed. That is said to have been an unusually high flood, higher than the river has been accustomed to be. That is what is called an act of God; and if that was the sole agency which at that time was the cause of the injury and damage to the land of the plaintiffs, then no man is responsible, for a visitation sent us of that kind, if it was a large one — -and I assume that it was an unusually high flood — works injury to nobody. If, however, there was that flood and the waters backed up underneath the tunnel or underneath the causeway at Lawrence street, and aided in doing the damage, but the waters coming from above also contributed to the injury, so that there was a conjuncture of what the law calls an act of God and the act of man, man alone is responsible, although the extraordinary high water in the river may have contributed towards it. The rule of law is that, although an act of God entails no injury upon anyone in contemplation of law, yet if man contributes towards it, it is man alone that is responsible, and you will consider how that was in this case,” etc.

This is not in any sense a departure from the law as laid down in Siegfried v. Bethlehem Borough, 27 Pa. Superior Ct. 456, in which it is said: “ And even if, with an extraordinary flood, there is concurring negligence, the party chargeable with it will be relieved from liability, if the flood is so overwhelming in character that it would of itself have produced the injury complained of, independently of such negligence: B. & O. R. R. Co. v. School District, 96 Pa. 65; Helbling v. Cemetery Co., 201 Pa. 171.” The language of the court, that “If man contributes toward the injury, man alone is responsible,” is in no manner contrary to the statement that, “ If the flood is so overwhelming in character that it would of itself have produced the injury complained of, independently of such negligence,” man is not responsible. It is simply another way of stating the same rule.

It was said in B. & O. R. R. Co. v. School District, 96 Pa. 65 : “We apprehend that the concurring negligence which, when combined with the act of God, produces the injury, must bé such as is in itself a real producing cause of the injury and not a merely fanciful or speculative or microscopic negligence which may not have been in the least degree the cause of the injury. In other words, if the act of God in this particular case was of such an overwhelming and destructive character as by its own force, and independently of the particular negligence allowed or shown, produced the injury, there would be no liability, though there were some negligence in the maintenance of the particular structure. .To create liability it must have required the combined effect of the act of God and the concurring negligence to produce the injury.”

The remarks of the trial judge on this phase of the case were in exact accord with this statement of the law.

Viewing the case as a whole, from any of the points of view presented by the appellant, we can discover no substantial error which would justify us in sustaining any of the assignments. They are, therefore, all overruled, and the judgment is affirmed.