text:
    Relly v. City of Easton et al.

      Asher Seip and Dudley A. Giberson, for plaintiff.

      Frank P. McCluskey and Newton B. Turner, for defendants.
    June 25, 1928.
   Stewart, P. J.,

The following is a summary of the facts:

R. F. Relly, as a resident, citizen and taxpayer of the City of Easton, filed his bill, alleging that he was the lowest responsible bidder for certain sewer work in the City of Easton. His bid was $68,302.45. At the time of the opening of the bids, there was one of W. T. S. Critchfield for $69,216.50. Council referred the bids to the Department of Streets and Public Improvements for investigation. Kenneth F. Kressler, a councilman, was superintendent of that department, and the Bureau of Water Works and Sewerage was a sub-department of the Department of Streets and Public Improvements. G. D. Andrews was the chief engineer of the bureau. The said Kressler and Andrews made an investigation of the plaintiff, R. F. Relly, inquiring into his ability as a contractor, his efficiency, his standing as a business man, his experience and his judgment. The Mayor and Council of the City of Easton held a conference, and reports were received as to the investigation into Mr. Relly’s standing. The city solicitor was present at the conference, and advised council as to their duties. At a regular meeting of the City Council, council publicly awarded the contract to W. T. S. Critchfield. Plaintiff was present at the meeting, and asked council for their reasons in not awarding the contract to him, and was informed that council had nothing further to say. The minutes of council record the awarding of the contract, but do not disclose the results of the investigation of Relly. Upon the hearing, a large amount of testimony was taken as to the work which plaintiff had done in the places where the City Codncil had investigated Mr. Relly, and witnesses were called to show that Relly had satisfactorily performed his contract, and in some instances witnesses were called against his contention. Three members of council testified as to personal investigations, and two admitted that they had been influenced largely by Critehfield’s ability as a contractor, which was known to them.

Discussion.

We have already referred to the wide scope which the investigation covered. We shall endeavor to keep the discussion within narrow limits, because we think that the questions involved are well settled in Pennsylvania. The leading case is Com. ex rel. Snyder et al. v. Mitchell, 82 Pa. 343. In that case, after referring to the words in the Act of May 23, 1874, P. L. 233, Mr. Justice Gordon said: “Now the court below, though they found, under the evidence, that the relators were responsible in all points in which the city had a right to inquire, yet they held that the word ‘responsible,’ as employed in the act, when applied to contracts requiring for their execution not only pecuniary ability, but also judgment and skill, imposes not merely a ministerial duty upon the city authorities, such as would result did their powers extend no further than to ascertain whose was the lowest bid, and the pecuniary responsibility of the bidder and his sureties, but also duties and powers which are deliberative and discretionary. In this we concur with the court below. For it is scarcely open to doubt but that the word under consideration, as it is used in the statute, means something more than pecuniary ability. In a contract such as the one in controversy, the work must be promptly, faithfully and well done; it must or ought to be conscientious work; to do such work requires prompt, skillful and faithful men. A dishonest contractor may impose work upon the city, in spite of the utmost caution of the superintending engineer, apparently good, and even capable of bearing its duty for a time, which in the end may prove to be a total failure and worse than useless. Granted, that from such a contractor pecuniary damages may be recovered by an action at law; that is, at best, but a last resort, that often produces more vexation than profit — a mere patch upon a bad job; an exceedingly meager compensation, at best, for the delay and incalculable damage resulting to a great) city from the want of a competent supply of water. The city requires honest work, not lawsuits. Were we to accept the interpretation insisted upon by the relators, the difference of a single dollar, in a bid for the most important contract, might determine the question in favor of some unskillful rogue as against an upright and skillful mechanic. Again, we know that, as a rule, cheap work and cheap workmen are but convertible terms for poor work and poor workmen, and if the city, for the mere sake of cheapness, must put up with these, it is indeed in a most unfortunate position. It is unnecessary, therefore, to resort to authority for the condemnation of the interpretation, by which the ruling of the court below is sought to be overturned, for it is opposed to the unbiased judgment of all reflecting men, whether lawyers or laymen, and its adoption would be productive of far more evil than good.” In Douglass et al. v. Com., 108 Pa. 559, the syllabus is: “In the Act of Assembly approved May 23, 1874, P. L. 233, directing contracts for supplies to be awarded to the lowest responsible bidder, the word ‘responsible’ does not refer to pecuniary ability only. The act calls for an exercise of discretionary powers on the part of the city officers; and if they act in good faith, although erroneously or indiscreetly, mandamus will not lie to compel them to change their decision. . . . Nor was it material that A had not been judicially convicted of defrauding the city. If he had actually defrauded her, or if the commissioners, on evidence which they deemed satisfactory, believed that he had, their discretionary power to reject his bid could not be restrained by mandamus.” In Interstate Vitrified Brick and Paving Co. v. Philadelphia, Mack Paving Co. et al., 164 Pa. 477, the lower court was of opinion that the Director of the Department of Public Works had no alternative but to award the contract to the lowest bidder who was able pecuniarily to carry out his contract. The Supreme Court said: “This was a misconception of the law as it has been repeatedly announced by this court.” In Reuting et al. v. Titusville, 175 Pa. 512, the syllabus is: “Under the Act of May 23, 1874, P. L. 233, directing municipal contracts to be awarded to the ‘lowest responsible bidder/ the municipal authorities, acting in their discretion and in good faith, may award the contract to a higher bidder, if considerations of superior skill, promptness or efficiency on the part of such bidder lead them so to do. When a municipal corporation has power to do any particular work, it may authorize its agents to make contracts for that purpose, and such contracts will be binding upon the corporation.' The councils of a municipality may by ordinance and resolution refer bids for paving to a committee on streets, and empower such committee to enter into a contract for the work of paving.” President Judge Henderson, now of the Superior Court, decided that case, and his opinion was affirmed by the Supreme Court. He discusses, on page 520, the right of a committee on streets to enter into a contract, and shows that it may be done. Under the Clark Act and ■ its supplements, the executive and administrative power, authority and duties in every city of the third class shall be distributed into and among five departments. It is absolutely necessary in cities of the size and importance of Easton that municipal work should be done in that way, and no criticism can be made of council in referring the matter of the investigation of the plaintiff in this case to the Bureau of Water Works and Sewerage, nor was it incumbent upon each member of council to make an independent investigation. They had a perfect right to rely upon the information that was brought to them by Mr. Kressler and Mr. Andrews, but it must not be forgotten that the mayor and Dr. Clark had made an investigation of their own. One of the latest cases on the subject is Hibbs et al. v. Arensberg et al., 276 Pa. 24. In that ease it appeared that the school board had not investigated thé responsibility of three lower bidders than the one who received the contract. While Mr. Justice Kephart, in his opinion, discusses other features, that was the ground on which the case was reversed. In his opinion, he said: “Executive officers of municipal and school districts have many discretionary powers in performing their functions; ordinarily, courts will not interfere with this exercise; but if it appears their action is based on a misconception of law, ignorance through lack of inquiry into facts necessary to form intelligent judgment, or the result of arbitrary will or caprice, courts will intervene to prevent an abuse of power adverse to public welfare. Executive officers are clothed with the responsibility of originating and executing plans for the public good; the presumption is that their acts are on such considerations and their decisions reached in a legal way after investigation. When their actions are challenged, the burden of showing to the contrary rests on those asserting it, and it is a.heavy burden; courts can and will interfere'only when it is made apparent this discretion has been abused. Abuse of discre- « tion does not, as a rule, come from unwise acts or mistaken judgment, but generally springs from improper influences, a disregard of duty or a violation of law.” Again he said: “The term ‘lowest responsible bidder’ does not mean the lowest bidder in dollars; nor does it mean the board may capriciously select a higher bidder, regardless of responsibility or cost. What the law requires is the exercise of a sound discretion by the directors; they should call to their assistance the means of information at hand to form an intelligent judgment. They should investigate the bidders to learn their financial standing, reputation, experience, resources, facilities, judgment and efficiency as builders. This was not done. The court below censures the board for omitting this important step, but it holds, inasmuch as they had ample knowledge of the successful bidder and the merit of its work, the contract could be awarded. This might do in private affairs, but will not pass when public funds are at stake; it is not the exercise of discretion. Though the directors were not bound in law to give the contract to the lowest bidder, who might be irresponsible, they were bound to investigate, and if a bidder measured up to the law’s requirement as a responsible party, the board could not capriciously award the contract to another. Giving a bond alone does not make up for responsibility; we have too many bonding companies willing to indemnify almost anything. But there should be a sufficient reason, where a bidder is responsible, why the job was not given to him. And where such reason appears, the action of the board is generally conclusive.” That case was followed in Hiorth v. Chester City, 282 Pa. 387. That case is peculiar. Both bidders had been previously engaged in municipal contracts, and were personally known to members of council. The city asked for bids for gathering garbage, and, secondly, for gathering ashes and rubbish. The contract for the rubbish was awarded to Firth for over $5000 more than Armstrong and Son bid, but at the same time council had awarded the garbage contract to Firth at a price much less than the difference in above bids. The Supreme Court affirmed the lower court in dismissing the bill because there was no allegation of fraud or misconduct on the part of city officials. Hibbs et al. v. Arensberg et al., 276 Pa. 24, was also followed in Day et al. v. Amwell Township School District, 283 Pa. 248, and in Summit Hill School Directors Removal, 289 Pa. 82.

The decisions of the highest courts of other states seem to be in accord with the above decisions. Three of them were cited by the learned counsel for the plaintiff: Williams v. City of Topeka et al., 85 Kan. 857, 118 Pac. Repr. 864 (1911). This is an action by a property owner to enjoin the Mayor and Commissioners of the City of Topeka from entering into a contract for paving. Bids were received for the work as provided by law. The bids considered were that of the Kaw Paving Company, a domestic corporation, for $54,777.30, and that of the Cleveland Trinidad Paving Company for $52,326.95. When the bids were opened, consideration was postponed for a week. The Cleveland Company was not known to the mayor and commissioners. One of the commissioners received a letter in response to a letter written to him by a commissioner of Wichita for information. The reply criticised the company. A telephone talk with a former mayor of Wichita elicited the same information, and others reported that the company had done some good work, but that some of it was rotten. At a meeting subsequently held, the president of the Cleveland Company and its attorney appeared before the commissioners, and the mayor announced that the bids for paving would be taken up and an opportunity given to any person who desired to be heard. The representatives of the company explained trouble that the company had had. The mayor and commissioners made no further investigation, but awarded the contract to the Kaw Paving Company upon its bid. “Evidence was produced on the trial tending to show that the Cleveland Company had performed large contracts for paving in many cities to the satisfaction of their governing bodies, although it appeared that a criminal prosecution had been begun against its president in one of the cities, and that an action for an injunction was being prosecuted in another. Explanations were given of these proceedings tending to exculpation. Evidence of the good reputation of the company and its president were also produced.” The lower court entered judgment for the defendant and plaintiff appealed. The higher court, in sustaining the judgment of the lower court, discussed the meaning of the expression “the lowest responsible bidder,” and stated that the word “responsible” in the phrase “lowest responsible bidder” was used by the legislature in the sense in which it had long been interpreted by the courts and text-writers, and must be held to imply skill, judgment and integrity necessary to the faithful performance of the contract, as well as sufficient financial resources and ability. The court then considers how this responsibility is to be determined. “Here, again, the authorities speak with practically one voice. The governing body of the city — the mayor and council, or commissioners, as the case may be — must determine the fact, and such determination cannot be set aside, unless the action of the tribunal is arbitrary, oppressive or fraudulent. . . . The determination of the question who is the lowest responsible bidder does not rest in the exercise of an arbitrary and unlimited discretion, but upon a bona fide judgment, based upon facts tending to support the determination. . . . The statute will not be so interpreted as to afford a cover for favoritism. The city authorities are required to act fairly and honestly upon reasonable information, but when they have so acted, their decision cannot be overthrown by the court.” The next question considered by the court was whether the facts before the mayor and commissioners tended to support their conclusion that the Cleveland Company was not the lowest responsible bidder, and whether they acted in good faith in awarding the contract to another. The court then held that, “in view of the information so obtained and other information before the commissioners, and the finding of the District Court that the award to the Kaw Paving Company was made in good faith, the judgment must be affirmed.” The Supreme Court of Kansas also relied upon Com. v. Mitchell, supra, and Douglass et al. v. Com., supra, and, in our judgment, while the Kansas case was cited by both sides, yet it is really similar in its facts to the present case, and is one of the best discussions that were cited to us. Kelling et al. v. Edwards, 134 N. W. Repr. 221 (1912), is also a well-considered case, in which Com. v. Mitchell, as well as a large number of Pennsylvania authorities, are cited and followed. In that case the same point was made as here, that there should be a hearing. The Supreme Court of Minnesota said: “The plaintiffs’ counsel insist that, even if the auditor had any discretion in determining the lowest responsible bidder, he had no right to reject bids on account of the irresponsibility of the bidders without giving them an opportunity to be heard. To support this contention they cite Faist v. Hoboken, 72 N. J. L. 361, 60 Atl. Repr. 1120. We are referred to no other case so holding, and clearly there would be practical difficulties in applying such a rule.” Faist v. Hoboken, supra, contains no discussion of the point, but relies on McGovern v. Board of Works, 57 N. J. L. 580. The latter case, when examined, shows that the city charter of Trenton, N. J., provided that contracts shall be awarded “to the lowest bidder or bidders who shall give satisfactory proof of his or their ability,” &c. There is nothing in the opinion of the court that requires a public hearing. On the contrary, the Supreme Court of New Jersey refers to the Pennsylvania decisions to the effect that courts will not interfere to restrain municipal authorities, “unless it be shown that they have acted corruptly and in bad faith.” The Minnesota court could have gone further and said that there was no case holding that a public hearing was necessary. In State ex rel. Eaves et al. v. Rickards et al., 40 Pac. Repr. 210, it is true that the State Furnishing Board did hold a hearing, and that the various bidders were questioned by the members of the board as to their financial responsibility, plant equipment, &c., but the Supreme Court of Montana did not hold that it was necessary to hold the hearing. As a matter of fact, it appeared from the opinion that the members individually got information as to the petitioner from outsiders, and it does not appear which kind of testimony influenced them in their action. Douglass et al. v. Com., 108 Pa. 559, and Com. v. Mitchell, 82 Pa. 343, were relied on by that court as authorities.

In the present suit, the plaintiff alleges that he sues as a resident, citizen and taxpayer. No question was raised as to his standing, for the good reason that it could not be successfully raised, but it is manifest that the plaintiff conducted the suit as a contractor whose bid was rejected. He could not have brought suit in that capacity because, until his bid had been accepted, there was no legal obligation between him and the city. See Wm. T. S. Critchfield v. Mayor and Aldermen of Jersey City, 132 Atl. Repr. 321, where the same party to whom this contract was awarded brought suit as a contractor. The mere possibility that Relly would have profits confers no legal standing on him. The action must be as it was in this case, directed against the city officials, and the burden is on him to prove that the city officials acted illegally, arbitrarily and capriciously, and in this he has failed. Nor do we think that there is any legal requirement that when bids are opened and the contract is not given to the lowest bidder, the council should have a public hearing upon the matter, or that the minutes of council should disclose council’s reasons. As we quoted above, any such course would present innumerable difficulties and would result in injurious delays, and a meeting of council would turn into a perfect Babel if they were to have hearings of this kind. The presumption is that public officials will do their duty, and before they can be convicted of fraud or unfairness or favoritism, there must be strong proof. It is a matter of congratulation that there is not the slightest suspicion in the present case that any of the councilmen expected to profit by the awarding of the contract to Critchfield. They may have been unduly influenced in his behalf by the fact that he had done previous work, but unless it appears that that was the only thing that influenced them, we could not overrule their decision. Some of the cases have referred to the fact that the difference between the bids was a small one. In the present case it was approximately $900, but, in our judgment, that has little to do with the matter. We place our decision on the fact that there is nothing in the evidence to impugn the honestly and good faith of the councilmen in deciding as they did.

And now, June 25, 1928, this cause came on to be heard at this term, and, upon consideration thereof, it is ordered, adjudged and decreed that the relief prayed for in the bill be denied and that the bill of complaint be dismissed, at the costs of the complainant.

The prothonotary will enter this decree nisi and give notice of same to the parties or their counsel, and if no exceptions are filed within ten days this decree shall be entered by him as a final decree.

From Henry D. Maxwell, Easton, Pa.


source: Caselaw Access Project

author: Henningek, P. J.,

license: Public Domain

text:
    Falkner v. Winfield Township.

      John B. and T. H. Greer, for plaintiff; J. M. Galbreath, for defendant.
    July 12, 1928.
   Henningek, P. J.,

Defendant is a township of the second class. Plaintiff is the owner of property in defendant township abutting upon a public road known as the Saxonburg and West Winfield Road. The State Highway Department improved the said road under the State-aid plan, the State paying 50 per cent., the County of Butler 25 per cent, and Winfield Township 25 per cent, of the cost of improvement. In the making of the improvement, the grade and location of the said road in front of plaintiff’s property was changed and some of plaintiff’s land taken for road purposes. The resulting damage is agreed by the parties to be $500. Plaintiff brought this suit to recover the damages, and the parties have agreed that if the defendant township is liable for the damages so sustained by plaintiff in this or any other action, judgment should be entered in favor of plaintiff and against the defendant for $500; but if there is no liability on the part of the township for the said damages, then judgment to be entered in favor of defendant and against the plaintiff for costs of suit. No proceeding was instituted in the Court of Quarter Sessions to change the location of the- said road, nor was there any action taken by the supervisors of defendant township changing it. The petition for viewers sets out that the road was improved by the State of Pennsylvania, and we presume that whatever change in location was made was made by the State. Damages for the change of grade 'of a road in a township of the second class are not recoverable from either the township, county or State unless imposed by an act of assembly: Shoe v. Nether Providence Township, 3 Pa. Superior Ct. 137; Wagner v. Salzburg Township, 132 Pa. 636; State Highway Route No. 72, 265 Pa. 369; Hoffer v. Reading Co., 287 Pa. 120; Wangner v. Bucks County, 82 Pa. Superior Ct. 448.

The roads belong to the State of Pennsylvania. The duty of repairing them has been placed upon the townships. Where a road is laid out by the State -or by its authority, no damages for the land taken may be recovered unless imposed by an act of assembly. When the State parted with the land, 6 per cent, was allowed for roads, and when the .State takes land for road purposes, it is presumed to be but using its own property. Damages, therefore, are a matter of grace, and whoever lays claim to damages must be able to point to the act of assembly authorizing them in all cases where the land is regularly and legally appropriated by the State or its authority. There is no act of assembly placing the costs of the relocation of a public road on second class townships. The Act of Assembly approved May 28, 1913, P. L. 368, does not impose liability on second class townships: Woodward v. Fayette County, 258 Pa. 375. Moreover, the said act is not in forcé. It was repealed by the act known as the Township Code, approved July 14, 1917, P. L. 840. Its provisions were re-enacted by section 485, but only as to first class townships. Section 640 of said act provides that roads in second class townships are to be laid out, located, changed and widened, and the damages resulting therefrom paid under the provisions of the general road laws, and under the provisions of the General Road Law, to wit, the Act of June 13, 1836, P. L. 551, and its supplements and amendments, it places the costs of laying out, relocating and widening public roads on the county through the board of viewers. Second class townships have not now, nor ever have had, the right of eminent domain in the laying out, widening or changing the locations of roads. Where a road is laid out in a second class township or its location changed by viewers on petition to the Court of Quarter Sessions, the damages are payable by the county and not by the township. Where a road is laid out by the State or its location changed by the State, no damages can be recovered in any event, unless an act of assembly has imposed them upon the township, the county or the State, and there is no act imposing them on the township. If the township supervisors had the supervision of the improvement in this case and caused the change in the location, we are still of the opinion that the township would not be liable, because, in doing so, they would be acting beyond their powers — as a township of the second class has no power to condemn and lay out a public road. It cannot accomplish the same purpose by trespassing, and if its supervisors trespassed, they alone are liable and not the township. Where a road is properly and legally laid out and the supervisors ordered to open it and, in opening it on the proper location, they injured adjacent property, an action of trespass would lie for the damages, because such a trespass would be incidental to the construction of the road, but where supervisors in townships of the second class change the location of a road, either by adding to its width or relocating it, their actions are ultra vires so far as the township is concerned and imposes no obligation upon the township. Where a municipal corporation is invested with the power of eminent domain and, instead of exercising such power in the manner prescribed by law, it appropriates the land by trespass, it will be liable in an action in trespass (Brink v. Dunmore, 174 Pa. 395; Reap v. Scranton, 7 Pa. Superior Ct. 32), but not so where a municipal corporation is not endowed with the power of eminent domain. To create such liability, the power to change the location must be within the corporate powers of the township. A municipal corporation cannot impliedly be liable to a greater extent than it could make itself liable by express corporate action: Dillon on Municipal Corporations (4th ed.), § 968; McQuillin on Municipal Corporations, §§ 26-37; Betham v. Philadelphia, 196 Pa. 302; Cavanagh v. Boston, 139 Mass. 426; Stealey v. Kansas City, 179 Mo. 400; Barger v. Hickory, 130 N. C. 550; O’Donnell v. Syracuse, 184 N. Y. 1.

Upon a careful consideration of the law bearing upon the liability of second class townships, we have come to the conclusion' that defendant township is not liable for the damage caused by either the change of the grade or the relocation of the public road: First, because there is no act of assembly imposing such; second, because it did not actually do the work and trespass upon plaintiff’s land; third, because it had no power to change the location of the road, and any act of changing it by the supervisors would make them, and not the township, liable as trespassers;


author: Gordon, Jr., J.,

text:
    Tait v. Tait.

      F. F. Kane and T. Daniel, for libellant; W. W. Leeds, for respondent.
    May 2, 1929.
   Gordon, Jr., J.,

This is an action for divorce on the ground of cruel and barbarous treatment and indignities to the person, and the master has recommended that the divorce be granted. Two questions are presented for our determination by the exceptions, (1) the bona fides of the residence of the libellant, and (2) the existence of a cause of action.

The parties were married in 1912, in the State of New York, and lived together thereafter in New York and New Jersey until 1917, when the libellant had the respondent committed to an insane asylum in that state; and since that date the respondent has been confined in the asylum, suffering from dementia prsecox. The libellant lived in Bloomfield, New Jersey, where he had formerly lived with his wife, from 1917 until 1926, when he claims to have moved his residence to this city because it is centrally located to his business, which is that of a salesman for an oil company of Michigan, his territory covering Ohio, Pennsylvania, Delaware, Maryland, New Jersey and New York. While he was considering the institution of divorce proceedings, and before consulting a Philadelphia attorney, the libellant was advised by attorneys of both New York and New Jersey that he could not secure a divorce in those states. At the place where he claims to have his permanent residence in this city, he rents a room for $5 a week, and he testifies that he occupies it about once every two weeks, at other times being “on the road.” Six months after filing his libel in Philadelphia, he was involved in a proceeding for support in New Jersey, and in the court of that state to which he was summoned he testified under oath that he lived in Bloomfield.

On the foregoing facts, and after a careful reading of the testimony, we are forced to the conclusion that the libellant’s residence in this city is not bona fide, and that the residence which he claims to have here was established for the purpose of securing a divorce. The only testimony he has presented which tends in any way to corroborate his claim of bona fides in the establishment of his residence here is that of a representative of his employer, who testified that he suggested to the libellant that he should move to Philadelphia in order to be centrally located for his business. All the other facts in the case speak convincingly of a typical residence for jurisdictional purposes only. His action in consulting attorneys of other states relative to securing a divorce in them; the fact that for years he carried on in Bloomfield the same business that he has continued here; his testimony in the New Jersey support proceeding that his residence was in Bloomfield, which was given after he had instituted this proceeding upon the claim that he resided here— testimony which he seeks to avoid by the weak explanation that he expected to be in Bloomfield for a few days, and merely gave his temporary address there in case he should be wanted — and all the circumstances of his removal to and residence in this city, satisfy us that his residence here is not bona fide, and that the court is without jurisdiction to entertain the libel.

This makes it unnecessary to discuss in detail the testimony upon the merits of the case. It may be noted, however, that the evidence, in our judgment, falls short of indicating a course of conduct on the part of the wife, during the five years before she was placed in the insane asylum by the husband, which would justify a divorce on the grounds of cruelty and indignities. The compression into the few minutes required to give testimony of incidents which were extended over a long period of time in their happening always tends to give a picture of persistent conduct which is likely to be misleading. Doubtless the respondent exhibited traits of temperament, such a jealousy, suspicion and rudeness, which made life with her difficult. On the other hand, it cannot be overlooked that dementia prieeox is a progressive mental disease, which is often evidenced by symptomatic conduct, such as is here made the basis of the charge of cruelty. It is very probable, therefore, that the wife’s treatment of the husband is, in large measure, attributable to acts which were the symptoms of malady, rather than deliberately malicious and hostile. Both cruel and barbarous treatment and indignities to the person connote settled and deliberate hostility or its equivalent in wanton indifference. Acts, therefore, which ordinarily would be justification for divorce on such grounds lose their value and importance when their origin is discovered in mental disease. As was said by Gordon, J., in Hansell v. Hansell, 15 Pa. C. C. Reps. 514, 3 Dist. R. 724: “In the present case, however, the intent and motive of the party is a necessary ingredient of the offense. Cruel and barbarous treatment and indignities to the person, endangering life or health, must consist of wilful and malicious acts, or they would not come within the description of the terms. ‘Cruel’ and ‘barbarous’ are words implying a merciless and savage disposition, taking pleasure in suffering, and without pity; while ‘indignities’ involves an insulting and contemptuous purpose. The evil and malicious will must be present to constitute an act cruel or barbarous, and an insulting intent to make it an indignity. Accidental acts, no matter how injurious, would not be sufficient, for the wrongful intent would be absent. . . . While in this proceeding marriage is treated as a civil contract, yet it must be also regarded as something more — as a civil status or condition intended to be of perpetual continuance as to the parties, and a relation of moral obligation having certain public aspects. Some contingencies, therefore, may arise which, while they may be unfortunate and burdensome to one of the parties and destructive of the object of marriage, are, nevertheless, to be endured, and are not reasons for annulling the contract. They are part of the risks entering into the assumption of a lifelong relationship, cannot be made a matter of legal stipulation, and must be endured for public, social and moral reasons. Among these are physical weakness, loss of health, deformity and disease. And what is insanity but a disease? And if insanity, occurring after marriage, is not a ground of divorce, how can any of the results of insanity constitute such a cause? The insane acts are but,a symptom of the disease.”

It is true that there was no adjudication of insanity in this case until 1917, after the commission of the acts relied upon. In judging their nature and value as evidence of the disposition essential to constitute cruelty, however, we cannot overlook the strong probability that this wife’s conduct had its origin in the unfortunate mental disease from which she was suffering in a progressive form, and which culminated in the necessity for institutional restraint in 1917. Comparatively slight as the acts are, even when viewed as the product of a sane mind, they are so linked up with the respondent’s illness as to force us to conclude, if it were necessary, that a cause of divorce had not been made out by the libellant.

The first and second exceptions to the master’s findings of fact, and the first and fifth exceptions to his conclusions of law, are sustained and the libel is dismissed.


author: Thompson, J.,

text:
    Vanderbilt’s Estate.

      Samuel Scoville, Jr., for exceptants; Lynd & Cooney, contra.
    April 12, 1929.
   Thompson, J.,

These exceptions raise a difficult question, and both the will and the facts of the case are complicated. Although the will has already been before the court in Vanderbilt’s Estate, 4 D. & C. 209, we think it better, for the sake of clarity, to discuss both the facts and the law in extenso.

John V. Vandérbilt died on May 16, 1880, leaving a widow, Margaret, and a will, by which he devised his residuary estate to his wife for life, and after her decease he devised the same to his trustees in trust as stated in the language of the will:

(1) “Item. All the rest residue and remainder of my Estate real personal and mixed of which I die possessed whatsoever and wheresoever situate I give devise and bequeath unto my beloved wife Margaret C. Vanderbilt for and during the full term of her natural life and so that she shall receive and enjoy the net interest and income thereof for her own sole and separate use and support and from and immediately after the decease of my said wife I give devise and bequeath all the said rest residue and remainder of my said estate real personal and mixed to the ‘Fidelity Insurance. Trust and Safe Deposit Company’ of Philadelphia and to my friend S. Kingston McCay of the City of Philadelphia, Conveyancer, their Heirs Executors Administrators Successors and assigns, To hold the same in Trust for the following uses and intents and purposes and for no other use intent or purpose whatever. That is to say to collect and receive the Rents Interest and Income thereof and after paying all Taxes Water Rents Interest on encumbrances repairs and the necessary-expenses attending the execution of this Trust to pay over the net interest and income thereof quarter or semi-annually to such of my children who may be then living and to the issue of such of them who may then be deceased leaving issue share and share alike during their natural lives the issue of such of them who may then be deceased taking such share only between them as his her or their parent would have had and taken if living and in case said issue are minors to be paid to his her or their guardian properly appointed for their maintenance education and support until such issue shall arrive at the age of twenty-one years it being also my will that the share or shares of my daughters shall be for their own sole and separate use and support and shall in no wise be liable to the control debts Sr engagements of any husband or husbands they or either of them may have.
(2) “Item. In case of the decease of either of my said children after the death of my wife leaving no issue it is my will that the income of the portion of my Estate so set apart and held in trust for the one so dying shall then be divided and paid to his her or their surviving brothers and sisters share and share alike during the full term of their natural lives and to the issue of such of them as may then be deceased such issue taking such share only between them as his her or their parent would have had and taken if living and the principal or their share thereof to be paid to such issue on arriving at the full age of twenty-one years and in case any of such issue shall then be in their minority the share of such minor to be held on the same trusts as hereinbefore set forth for them until he or she or they shall have attained their majority.
(3) “Item. In case of the death of all my children without leaving lawful issue I then direct and it is my will that so much of my estate as shall then remain in the hands of my Executors and Trustees shall be equally divided between my nephews and nieces then living share and share alike it being my will and desire that my Estate shall descend to my children and grandchildren but for want of such issue and then only to go to my nephews and nieces share and share alike.”

The numbers (1), (2) and (3) are not in the will but inserted by us for convenience of reference.

The testator was survived by his wife, Margaret, and three children:

1. Frank Y. Vanderbilt, who died Dec. 23, 1927, a widower, without issue.

2. Mary V. Furbush, who died July 27,1914. Her only child, Elsie V. Bonner, predeceased her on May 15, 1903, leaving a son, Carl V. Bonner, who attained the age of twenty-one on June 15, 1920, and died April 29, 1923, intestate and without issue, leaving a widow, Agnes, who is the administratrix of his estate.

3. Martha P. Vanderbilt, who died Feb. 27,1918, unmarried and without issue.

On the death of Martha, the trustees filed an account, audited by Anderson, J., in adjudication filed May 21, 1918. The fund before the court was $29,773.36, of which the Auditing Judge awarded two-thirds, or $19,848.91, to the trustees for Frank Y. Vanderbilt, the surviving son of the testator, and Carl V. Bonner, great-grandson of the testator, and the remaining one-third, less costs and fees, or $9589.95, to the guardian of Carl V. Bonner, then a minor. No exceptions were filed to this adjudication, which need not be further discussed, as one-third of the estate was then subtracted, and in this connection we do not understand the statement of the counsel of the present exceptants, John C. Vanderbilt and Eleanor V. Wilson, a nephew and niece of decedent, who claims in his brief that this one-third of the estate was not distributed, inasmuch as the next account clearly shows that it was filed of the exact amount, $19,848.01, awarded to the trustees by Judge Anderson. This account was filed after the death of Carl V. Bonner and was audited by Gest, J., adjudication filed July 10, 1923. Frank Y. Vanderbilt, a son of the testator, was then living, and the question that was discussed by the Auditing Judge was the award to be made of the income formerly paid to Carl V. Bonner and liberated by his death. The Auditing Judge awarded the entire principal to the trustee in trust to pay the income to Frank Y. Vanderbilt for life, and expressly stated that “what disposition will be made of the principal at his death cannot now be considered:” Wears’s Estate, 25 Dist. R. 30; Hano’s Estate, 8 Dist. R. 353; Fabian’s Estate, 18 Phila. 175. Exceptions filed by the estate of Carl V. Bonner to this adjudication were dismissed by the court, 4 D. & C. 209. So far as income is concerned, the adjudication is res judicata. Frank Y. Vanderbilt died, as stated, Dec. 23, 1927, and the trustees have filed this present account. Lamorelle, P. J., in an elaborate adjudication, has awarded the entire balance of principal to the administratrix of the estate of Carl V. Bonner, and these exceptions are filed to this ruling on the ground that the balance should have been awarded to John C. Vanderbilt, a nephew of testator, and Eleanor V. Wilson, a niece, in equal shares.

At this point we refer specifically to the provisions of the residuary devises as designated (1), (2) and (3). Paragraph (1) refers only to the payment of income to children living at the death of Margaret, the widow, and the issue of any then deceased, and does not direct any distribution of principal. Paragraph (2) provides for the case of the decease of either of the children after the death of Margaret, the widow, leaving no issue, which was the case of Martha P. Vanderbilt, the will providing in such case that the income should be paid to her surviving brothers and sisters for their lives and to the issue of such as may then be deceased, such issue taking the share their “parent” would have taken if living, the principal to be paid to such issue on arriving at the age of twenty-one years, and Judge Anderson, in his adjudication, construed this to authorize an award of one-third of the estate to the guardian of Carl V. Bonner. When Carl V. Bonner died, in 1923, the then Auditing Judge decided (Vanderbilt’s Estate, 4 D. & C. 209) that the meaning of the word “issue” was restricted by the word “parent” and awarded the entire balance of principal then remaining to the trustees in trust for Frank Y. Vanderbilt for life. Now that Frank is dead, an entirely different question is presented, namely, the distribution of the principal, which is claimed by the administratrix of the estate of Carl V. Bonner, on the one hand, and by a niece and nephew of the testator, on the other.

To this question paragraph (3) is applicable, and we observe, in the first place, that the testator does not employ the restrictive word “parent,” but says, generally, “in case of the death of all my children without leaving lawful issue,” and Only in such event is the principal given to the nephew and niece; and, secondly, the testator states his will to be that his estate shall “descend” to his “children and grandchildren,” “but for want of such issue,” and then only, “to go to my nephews and nieces.”

The question may thus be considered in two aspects: First, Mary V. Furbush, a daughter of the testator, had one child, Elsie, mother of Carl, and she died in 1903. She fulfilled the provision of the will that the estate should “descend” to the testator’s grandchildren, although she did not live until the termination of the trust so as to come into actual physical possession, and, in this aspect of the case, Elsie took a vested and transmissible interest in the estate, and the collateral nephews and nieces could take nothing. In the second place, the testator directs that his estate should “descend to his children and grandchildren,” which, in our opinion, would bring the case within the doctrine of Campbell’s Estate, 202 Pa. 460, a case which was not considered by the Auditing Judge in Vanderbilt’s Estate, 4 D. & C. 209, but is relied upon by the present Auditing Judge in his adjudication, whose discussion requires no elaboration. It was strenuously argued that the decision of this court in Vanderbilt’s Estate, 4 D. & C. 209, was res judicata and conclusive of the present question. The previous adjudications of this court do not, however, decide questions of fact and become thus controlling, as was the case in Havir’s Estate, 283 Pa. 292, and Bower’s Estate, 240 Pa. 388. The questions raised and decided were purely questions of law, and the doctrine of Keller-man’s Estate, 242 Pa. 3, applies. Moreover, it must be borne in mind that the decision in 4 D. & C. 209 concerned only the distribution of income, and the Auditing Judge, anticipating that the distribution of the principal at the death of Frank Y. Vanderbilt involved other and difficult questions, was careful to confine his decision on the question to the question of income, as above pointed out. Whatever went apparently beyond that was merely a dictum and in no way now controlling: Ram on Judgments, 43 (Townshend’s Ed., 97).

Notwithstanding the exhaustive and able argument presented on behalf of exceptants, we are not convinced that the Auditing Judge erred in his adjudication, and, consequently, all exceptions are dismissed and the adjudication is confirmed absolutely.

Stearne, J., did not sit.


author: Copeland, P. J.,

text:
    Commonwealth v. Czemerda.

      Marker & Rial for Commonwealth; E. Richard Criss, for defendant.
    July 20, 1928.
   Copeland, P. J.,

One Mike Bednarczuk was charged with the violation of the liquor law at No. 374, August Term, 1926, and was admitted to bail in the sum of $1000, with Stanley Czemerda, the defendant, as surety.

The defendant’s recognizance at No. 374, August Term, 1926, Quarter Sessions, was conditioned that the said Mike Bednarczuk “shall be and appear at the next term of court, etc.,” and “abide and not depart the court without leave,” and “shall in the meantime keep the peace, etc.”

The case at the above number and term was continued until the November Term, 1926. At the November Term, 1926, Mike Bednarczuk failed to appear, and at that time the bond was forfeited and duly estreated to the county commissioners’ office and judgment entered thereon against Stanley Czemerda at the above number and term.

On May 11, 1927, Mike Bednarezuk appeared in open court, plead guilty to the charge of violation of the liquor law and was sentenced on that day to pay the costs of prosecution and a fine of $200, and was given further until July 1, 1927, to pay the costs.

Mike Bednarezuk failed to pay the fine and costs and his whereabouts is now unknown.

Stanley Czemerda, the defendant in the judgment entered at the above number and term, has, by his attorney, filed a petition to have the judgment against him stricken from the record, alleging that the conditions of the bond have been fully performed, and, therefore, the bond is null and void and the forfeiture irregular and void. A rule was granted on the district attorney and the attorney for the county commissioners, W. S. Rial, to show cause why the prayer of the petition should not be granted.

The county commissioners, by their attorney, W. S. Rial, have answered the petition, denying that the conditions of the bond as stated in the petition have been complied with and the judgment entered at the above number and term is void.

The question raised is: Does the state of facts as set forth in the petition and answer justify a forfeiture of the bond and an entry of judgment against the surety? The defendant earnestly contends they do not. The plaintiff equally as earnestly contends they do.

In Com. v. Oblender et al., 135 Pa. 530, it was said in the syllabus, which is supported by the per curiam, opinion of the court: “When a recognizance in the Court of Quarter Sessions, by which a defendant is bound to appear and ‘not depart the said court without leave,’ is forfeited and respited from term to term, the liability of the bail is fixed when the forfeiture is first adjudged, and it is not affected by any subsequent proceedings on the indictment against the principal; any relief after the forfeiture is a matter of grace and not of right.”

In the case of Mishler v. Com., 62 Pa. 55, 61, it was said by Mr. Justice Sharswood: “It is the express condition of the recognizance that he shall appear and not depart the court without leave. It is at all times in the discretion of the court, at any stage of a criminal trial, to call the defendant and forfeit his recognizance. . . . Upon the continuance of the case, it is the duty of the court to have the recognizance renewed or a new one taken, or otherwise to commit the defendant to jail. The surety has bound himself only for his appearance at the next term, and his obligation does not extend to any subsequent term to which the case may be continued without, his express consent: Keefhaver v. Com., 2 P. & W. 240; Kisser v. The State, 13 Ind. 30; The People v. Clery, 17 Wend. 374. If, then, a continuance of the cause is itself an implied leave to depart, all that a defendant has to do is to leave the court as soon as the order for a continuance is made. The order for the renewal of the recognizance necessarily follows the order for the continuance. The very question we are now considering has been decided by the Supreme Court of the State of Ohio in Swank v. The State, 3 Ohio (N. S.), 429. ‘The continuance of the cause for trial to the next term,’ says the court, ‘has nothing to do with the proper mode of securing the attendance of the prisoner at that term. Indeed, until the continuance takes place, upon the motion of the state or prisoner, it cannot be known that the attendance of the prisoner will be required at the next term, and no recognizance could be required of him to appear at a subsequent time. It is the continuance which creates the necessity of the new recognizance.”

It was said in Com. v. Somers, 14 Pa. C. C. Reps. 159: “On Oct. 8, 1887, a charge of false pretense was preferred against the defendant before Aider-man Post, of Scranton, and the defendant having been arrested thereon gave bail before Alderman Roesler for his appearance at the next term of this court. That term began on Monday, Oct. 17th, and continued three weeks, and was followed by a term in January, another in April and a third in June. The transcript of the case was not filed, however, until March 14, 1888, and no indictment was found until the meeting of the grand jury for June Term. At the April Term, the defendant was called, and, on failing to respond, his bail was forfeited. Against this, complaint is now made and, as we think, with justice. There was no authority to forfeit the bail at that late day. The recognizance entered into was for the appearance of the defendant at the next or October Term. So far as the bail is concerned, this obligation certainly could not without express consent be enlarged so as to make him responsible for a default at a subsequent term: Keefhaver v. Com., 2 P. & W. 240; Mishler v. Com., 62 Pa. 55; and we do not see why this is not true of the defendant also. His undertaking was in terms the same as that of the bail. He was simply to appear at the next term of the Quarter Sessions to answer such charges as might be there preferred against him, and not depart the court without leave. The obligation was not a continuing one, so as to bind him to appear indefinitely at any subsequent term at which the Commonwealth might choose to follow up the charge. It was the duty of the magistrate to return the case to the term of the court to which the defendant was held to appear. If for any sufficient reason the district attorney was not prepared to go on with it at that time, a continuance of it could then have been obtained, and the defendant either put under new bail or the bail already in be forfeited to be respited upon the defendant’s appearance at the next term. This course not having been pursued, the proceedings fell within the term to which they were returnable. Thereafter the defendant was out of court and under no obligation to appear. It follows that when he was called and his bail forfeited, the court had no hold upon him and the proceedings were corum non judice and void.”

In 2 Penrose and Watts, 240, 243, Chief Justice Gibson said: “Recognizances being for an appearance at the next and not at every succeeding sessions are to be discharged at the end of the term by committing the prisoners, delivering them on new bail or setting them at large. But to avoid the trouble of renewing the security, it is sometimes the practice, when the bail consent, to forfeit the recognizance and respite it till the next term, and this answers the purpose perfectly well.”

As to the appearance of the defendant at the August Term, 1926, it is to be presumed that he was present in court, as the forfeiture of the bond was for non-appearance at the November Term, 1926. There is no allegation in either the petition, the answer or docket entries that the defendant did not appear at the August Term, 1926. If the defendant had been absent at the August Term, for which the bond was given, it must be assumed that the district attorney would have forfeited the bond at the August Term, 1926, if there had been a breach of any of the conditions at that time.

As to the condition that the defendant “abide and not depart the court without leave,” there is no evidence that that condition was broken at the August Term. As to the condition that the defendant shall keep the peace and be of good behavior toward all citizens of the Commonwealth, there is no evidence that that condition was broken at the August Term, 1926. The petition, the answer and the docket entries in this case do not show any breach of condition.

The basis of the forfeiture in this ease is that the defendant did not appear at the November Term, 1926. His non-appearance then, so far as this bond was concerned, made no difference and rendered the forfeiture at that time null and void, as the bond was conditioned for the defendant’s appearance at the August Term, 1926. As we said, the conditions of the bond apply only to the term following the execution of the bond and not to subsequent^ terms. The obligation is not a continuing one, so as to bind the defendant to appear indefinitely at any subsequent term at which the Commonwealth might choose to follow up its charge. The recognizance entered into in this case was for the appearance at the next term. The next term in this case was August Term, and a forfeiture at that term would have fixed the responsibility of the bail or surety. This has been the common understanding of the obligations of sureties. While bondsmen might be perfectly willing to guarantee the appearance of a prisoner charged with a criminal offense to stand his trial, yet we apprehend that this is far beyond their understanding of the nature of the contract, that they will await the pleasure of the court.

So far as the bail is concerned in this case, this bond or obligation certainly could not without express consent be enlarged so as to make him responsible for the defendant’s appearance at any subsequent term.

The continuance of a case to a subsequent term is an implied license to depart and creates the necessity of a new recognizance, and when no new recognizance is required to be entered into before the expiration of the term to which the bond is given, the surety is discharged from his contract and a forfeiture at a subsequent term is null and void.

It is true that if this bond had been forfeited during the August Term of court, that would have fixed the liability of the surety, and respiting of the recognizance from term to term would have made no difference, for, as has been said in disposing of questions of this character, the respiting of the recognizance is for the benefit of the surety and not for the benefit of the Commonwealth; that is to say, it is done for the purpose of giving the surety an opportunity to find his defendant and produce him in court, and that, so doing, the court then has power to remit the forfeiture and discharge the defendant from his suretyship.

As was said by counsel for the defendant surety in this case, a continuance is a variation of risk of the surety, and on analogy to the law in civil cases discharging sureties in obligations where creditor extends time to the principal, or releases him, etc., the surety in any criminal action should be treated likewise. It is unfair to hold a surety to his bond where he does not expressly agree to be bound for every succeeding term until the Commonwealth is ready to resume the case. Public policy demands that the benefit of the doubt as to these conditions in the bond be construed in favor of the surety.

This is substantially correct and good law, for when a surety obligates himself in a bond for the defendant to appear at the next term of court, that is the extent of his surety, and nothing can enlarge that contract except by consent and direction of the surety himself, and if the district attorney continues the ease without agreement with the surety that his bond will hold to and during a subsequent term, then Snd in that case the responsibility of the surety ends.

And now, to wit, July 20, 1928, after argument and after due and careful consideration, it is ordered, adjudged and decreed that the prayer of- the petition be granted and that the forfeiture of the bond and the judgment entered thereon at the above number and term be and the same are hereby stricken from the record and the rule heretofore granted on Jan. 17, 1928, be and the same is hereby made absolute, the costs of this proceeding to be borne by the County of Westmoreland.

Prom William S. Kial, Greensburg, Pa.


author: Broomall, J.,

text:
    Commonwealth v. Boulden.

      Geary & Rankin, for exceptants; Mervyn R. Turk, contra.
    July 20, 1928.
   Broomall, J.,

The offenses charged against the defendants involved assault and battery and violation of the election laws at the primary election held Sept. 20, 1927, in the Borough of Trainer, in this county. The cases were bitterly contested. Numerous witnesses were called by both sides. The evidence as to whether any offense had been committed was very conflicting, and the jury very properly imposed the costs, two-thirds on the prosecutors and one-third on the defendants. Defendants filed a bill of costs at the time, and subsequently filed an amended bill of costs. The clerk of court was called upon to tax the same, and took testimony thereon on March 30, 1928, which is now before the court on appeal from the taxation. Nine exceptions have been filed, which will be considered in their order, as noted below.

1. This exception relates to the failure of the district attorney to file a certificate relating to the costs.

Section 1 of the Act of May 19, 1887, P. L. 138, provides, inter alia, that “The costs of prosecution accruing in every case of misdemeanor in any of the Courts of Quarter Sessions of the Peace of this Commonwealth shall, on the termination of the prosecution by the bill of indictment being ignored by the grand jury, or by a verdict of a traverse jury and sentence of the court thereon, be immediately chargeable to and paid by the proper county: Provided, that the county shall be liable only for the costs of such witnesses as the district attorney shall certify were subpoenaed by his order and were in attendance and necessary to the trial of the case.”

It will be noted that the certificate of the district attorney is only required to make the county liable for the costs. In the cases under consideration the costs were placed upon the parties by the jury; therefore, no certificate was required from the district attorney; and if any such certificate was required in order to make the county liable, if this should be necessary, we would permit the filing of the same nunc pro tunc.

2. This exception relates to four witnesses named in the defendants’ bill of costs, alleging that they did not testify and were not necessary or material witnesses.

The testimony shows that the witnesses were in attendance, and counsel for the defendants testified under oath that they were necessary and material. Counsel for defendant claimed that they were not called because, in his judgment, the facts that they would testify to had been fully covered by the testimony of other witnesses. On behalf of the exceptants, no testimony was offered to controvert this allegation.

3. This exception relates to certain witnesses who were in attendance in court and called, but claim is made that they were not in court the number of days set forth in the bill of costs.

In this connection, our Rules of Court provide, under the title “Costs,” section 4, page 35, that “The affidavit of the party or other person to the correctness of the bill, and the attendance and materiality of the witnesses, shall be annexed, and shall be prima facie evidence of the taxing officer.” This rule places the burden on the person questioning the correctness of the bill of costs. Counsel for the defendants testified that the witnesses were present the number of days claimed in the bill, while for the exceptions two witnesses were called for the purpose of proving that they were not present the number of days claimed; but their testimony falls far short of proving that the witnesses were not present the number of days claimed in the bill of costs. The burden of proving the facts was upon the exceptants under the Rule of Court. This burden was not met as to these items.

4. This exception relates to a witness, Joseph Ryan, who, it is alleged, was not a necessary or material witness, but, when called, testified he knew nothing as to the facts of the case.

In a spirited contest of this kind, it would be unjust and unfair to pick out a particular witness and hold that the witness should not be paid for attending,-as counsel may have anticipated other proofs in the case. In the absence of any testimony to the contrary, we hold that this is covered by the Rule of Court.

5. This exception relates to some thirty-eight character witnesses, who, it is alleged, were not material and necessary witnesses, and brought here merely for the purpose of running up a large bill of costs.

With this we cannot agree. In some jurisdictions a rule of court has been adopted which prohibits the calling of more than a certain number of witnesses on each side without leave of court. Such a rule has never been adopted in this county, and when discussed there seemed to be some question as to whether such a rule could be enforced. In fact, we feel that the court must rely upon counsel to exercise discretion as to the number of witnesses called. In this case, they represent persons in all walks of life, and we have no doubt that the number and character of the witnesses called to prove the reputations of the defendants had considerable influence on the jury in acquitting the defendants and disposing of the costs in the manner they did. The reputation of the defendants was a fact to be proved like any other fact and must be considered by the jury in connection with the other evidence in the case.

6. This exception relates to an item of $16.25 for subpoena service which, it is claimed, is not properly chargeable as costs, as the subpoena was served by Thomas F. Hays, who, it was admitted, was regularly employed as a deputy sheriff by the County of Delaware.

Any person is permitted to serve a subpoena and to charge therefor. There was no question raised as to the amount of this item, it being claimed that if was not taxable at all for the reason stated. It is taxable as part of the costs of this case and payable by the parties, under the verdict of the jury. Whether, when paid, it belongs to the deputy sheriff personally, or should be turned over to the County of Delaware, is a question which we are not now called upon to decide in connection with the exceptions in this case.

7. This exception relates to witness fees and mileage allowed to Andrew J. Dalton, a deputy clerk and deputy prothonotary of our courts.

We have not had our attention, called to any case directly in point, it has been decided that public officers, when called in court, are entitled io be compensated as witnesses. The exception to this rule seems to be members of the bar in active practice before the court. It would appear that they are not entitled to be compensated. But members of the bar who are not in attendance at court in active practice are entitled to be compensated. In fact, the act providing that policemen should receive no other compensation than their salaries has been construed by the courts so that they are entitled to compensation as witnesses in court. Only a hasty examination of the authorities in this connection has been made, as neither counsel submitted any authorities on this proposition.

8. This exception relates to an item of $9.75, which appears to be for subpoena service, and the exception states that “no proof of such service has been made to us.”

We take it under our Rule of Court that this item was proved by the affidavit to the amended bill of costs, and in the absence of any testimony thereon to the contrary, it must be allowed.

9. This exception relates to the mileage allowed to the witnesses, it being contended that there has been an overcharge of one, two or three miles for each witness.

Section 1 of the Act of May 19, 1887, P. L. 134, provides for mileage to be “computed by the route usually traveled in going from points or places where witnesses may respectively reside to the county seat, whether that route be by the public highways, railroads or otherwise: Provided, that in no case shall more mileage be allowed than for the miles actually traveled.” There was no evidence offered to show that the witnesses did not travel the actual number of miles claimed in the bill of costs. There was testimony offered to the effect that the mileage between certain points was less than the amount claimed. The bill of costs being prima facie evidence that the mileage claimed is correct, and there being no testimony that the witnesses did not actually travel the number of miles claimed, we see no reason to complain of the action of the clerk.

Not only was the bill of costs prima facie evidence of the number of miles actually traveled by each witness, but it also appears that there was offered in evidence before the clerk a schedule of the mileage between different points in this county, which was adopted by the county commissioners several years ago as the mileage from which they compute the pay of constables, jurors, witnesses, etc. We are not prepared to say that this schedule is conclusive of anything, but where such a schedule is adopted, and the amount claimed, as here, conforms thereto, under such circumstances, it should be considered as correct, except that no witness should be entitled to more mileage than the number of miles actually traveled.

Certain exceptions were taken before the clerk of court when the testimony was heard.

Counsel for the exceptions demanded that the clerk issue a subpoena for witnesses, so that they might be examined as to the number of days they attended and the number of miles they traveled. Under our Rule of Court, the burden was on the party contesting to prove by competent evidence that the bill of costs as filed was incorrect, and, for that purpose, to subpoena the necessary witnesses to appear before the clerk. This duty did not fall upon the clerk of court.

Another exception relates to a paper which one of the witnesses attempted to use in testifying before the clerk of court. It developed that the witness had nothing whatever to do with the preparation of the paper. He was, therefore, not entitled to use it in testifying, and it was properly ruled out.

An exception was also taken before the clerk to the refusal to compel the attendance before the clerk of the witness referred to in exception 4, above noted. This exception has already been covered by what we said in reference to the witnesses being produced before the clerk by the party excepting to the bill of costs.

These exceptions were argued before the court in banc, and counsel for the exceptions was allowed ten days in which to file a brief. No brief was filed within that time, and the matter was placed on the Motion List for Friday, July 6, 1928, by counsel for the defendants. At that time counsel for the exceptions was notified that the matter would be adjudicated on the argument. Counsel for the exceptions has not filed any brief nor given us the benefit of any authorities. We presume that the amount involved in dollars and cents being small, it would take too much of counsel’s time to prepare such a brief, but, unfortunately, the court has had to hear argument and write this lengthy opinion on questions which, at the most, involve a very small amount of money.

And now, to wit, July 20, 1928, for the reasons stated, the exceptions are not allowed, the appeal dismissed at the cost of the exceptants, and the costs as taxed by the clerk of court confirmed and directed to be paid.

From William R. Toal, Media, Pa.


author: Groff, J.,

text:
    Bruner Piano Company, to use, v. Madonna.

      Willis G. Kendig and F. Lyman Windolph, for rule.

      George Boss Eshleman, contra.
    June 23, 1928.
   Groff, J.,

On March 3, 1928, the defendant in above judgment, entered in the Court of Common Pleas of Lancaster County, to January Term, 1928, No. 205, presented a petition alleging certain facts, and praying that the judgment be opened and that he, the petitioner, the defendant above, be let into a defense.

Upon this petition a rule was granted to show cause why the said judgment should not be opened, returnable the third Monday of March, 1928.

An answer was filed thereto, depositions were taken, the matter was argued, and we are now asked to decide whether the said rule should be made absolute or discharged. The facts are these: That on and prior to Feb. 19, 1927, one H. H. Bruner was engaged in the piano business in the City of Lancaster, Pennsylvania. On that date he sold to Salvatore Madonna one Kimberly Piano, No. 195306, and took in payment thereof $10 in cash, a promissory note for $485, and at the same time he had the defendant execute a bailment lease of the ordinary kind, providing for the payment of $10 in cash and $10 per month during the term of the lease. The lease contained the usual clauses permitting the bailor to repossess the piano, and also containing a warrant of attorney permitting the bailor to confess judgment against the bailee in default of payments as in the said lease provided.

The note was an ordinary promissory note, dated Feb. 19, 1927, and payable at the Farmers Trust Company of the City of Lancaster, Pennsylvania. Two days after it was signed and delivered to H. H. Bruner he took the same to the Farmers Trust Company of Lancaster, Pennsylvania, who purchased it and placed the proceeds to the credit of H. H. Bruner. Notice of this fact was subsequently given to Salvatore Madonna, the maker of the note, and he subsequently paid the note to the Farmers Trust Company of Lancaster, Pennsylvania.

The lease was, on May 12, 1927, assigned by Bruner to Jacob Doll & Son, Inc., who retained the same until Feb. 9, 1928, and then entered a judgment thereon in the Court of Common Pleas of Lancaster County, to January Term, 1928, No. 205, for the principal, as shown in the lease, with interest and a collection fee, amounting in all to $514.10. It is this judgment we are asked to open.

Neither the note nor the lease made a reference to the other paper given in payment of the piano. The question, therefore, is whether, under the facts as alleged and proven, this judgment should be opened.

While the petitioner sets forth in his petition that the note was given as collateral to the lease, we rather feel the transaction was analogous to one on a mortgage and bond. The bond is a primary security and the mortgage is the collateral. We, therefore, find that the note was a primary security and the lease a collateral.

A bailment lease in Pennsylvania corresponds very nearly with the chattel mortgage in other states, and we find that it has been decided in numerous states of the Union that: “A mortgage of either real or personal estate is but an accessory or incident to the debt, or the security which is given as the evidence of the debt. The assignment of the security passes the interest in the mortgage. The mortgage cannot exist as an independent debt. If by special agreement it does not accompany the security assigned, it is ipso facto extinguished and ceases to be a subsisting demand:” Langdon v. Buel, 9 Wendell (N. Y.), 80-84.

There was no notice given to Madonna of the transfer of the lease to Doll & Son, Inc., until after it was entered in the prothonotary’s office; and prior to that time the note given in payment of the piano was fully paid to the trust company. The note passed by delivery, the trust company was a purchaser for value without notice, and Madonna paid without a notice of the transfer of the lease. We, therefore, think that the obligation created by the lease ceased to exist on the payment of the note.

Of course, as long as the note and the lease remained in the hands of Bruner, he could pursue either one of the securities, and could avail himself of either as long as the debt remained unpaid: Jennings v. Loeffler, 184 Pa. 318.

That case decides, and other cases following, by implication at least, that where a man holds two securities for the same indebtedness, and the debt is paid, his right to pursue the debtor ceases.

We feel that a lease passed by assignment is in the same position exactly as a non-negotiable promissory note, and we find the following to be the law in Pennsylvania: “The holder of a non-negotiable promissory note stands in the place of the assignor, exposed to the defenses which might be set up against the assignor before he has given notice of the assignment. Any contract which the assignor made with the payee, the original creditor, by which the debt was extinguished, either in whole or in part, is binding and valid against the assignee. Payment by the maker to the payee before notice of assignment is good:” Hoverter v. Consedine, 82 Pa. Superior Ct. 294.

There is nothing to show in this case from the facts as testified to that Madonna had any knowledge of the transfer of the lease prior to the time of his payment of the note.

And again referring to a lease of real estate, which is somewhat analogous to the transaction we are considering, we find that the court, in Landberg v. Equitable Investment Co., 292 Pa. 476, held that: “Where the lessor assigns the lease apart from the reversion, the relation of landlord and tenant is established between the assignee and the lessee, and the assignee takes subject to any equities between the lessor and lessee, as well as to the terms and conditions of the lease itself and the assignment.”

And again: “Any contract made between the debtor and the original creditor by which the debt is extinguished, either in whole or in part, is binding and valid against the creditor’s assignee, where no notice of its assignment has been given to the debtor:” Florence v. D., L. & W. R. R. Co., 258 Pa. 456.

We, therefore, feel that equity and sound discretion require us to make the rule to open the judgment absolute. Rule made absolute.


author: Maxey, J.,

text:
    Wile & Co., Inc., v. Freedman.

      J. Julius Levy, for rule; R. L. Levy, contra.
    Aug. 13, 1928.
   Maxey, J.,

On July 23, 1928, the plaintiff, a New York corporation, issued a prascipe for a writ of replevin for certain men’s clothing. The writ is returnable to September Term, 1928. On said date, July 23, 1928, plaintiff’s bond in replevin was filed. It is a printed form of replevin bond bearing three lines for signature, each followed by the printed word “Seal” in a scroll. The bond is signed as follows:

(Written) (Printed)
M. Wile and Co., Inc. (Seal)
Jno. D. Metzger, (Seal)
R. L. Levy Ass’t Secty. (Seal)

Of the written part, all except the name “R. L. Levy” is in the writing of one person.

The corporate seal of the plaintiff is not aifixed to the bond.

On the same day, July 23, 1928, defendant filed a motion to quash the writ of replevin and assigned in support of the motion the following reasons:

“The writ of replevin in this case was issued without the plaintiff executing and filing with the prothonotary of this court a bond to the Commonwealth of Pennsylvania for the use of the defendant, with surety, in double the value of the goods sought to be replevined, as provided by the acts of assembly in such cases made and provided. No bond was executed by the plaintiff nor filed by the plaintiff in this case.
“There is an instrument in writing intended to function as such bond and running in the name of the plaintiff corporation, which it purports to bind for breach of its condition, but it is not executed by the proper officers of the said corporation and is not sealed with the corporation seal of the said company.”

A rule was granted to show cause why the writ of replevin should not be quashed and set aside.

It is, of course, well-settled law that a corporation must have a seal in order to execute instruments required to he under seal and that a corporation may adopt any device as a seal, either generally or pro hac vice, but it is not law that any officer of a corporation, particularly a subordinate officer, can adopt, pro hac vice, any device to take the place of the official seal of the corporation duly adopted by the act of the corporation.

It is also the law that a seal is of the essence of a bond and that no writing can have the qualities which attach to a bond without the seal of the party executing it, and that, in the absence of a seal, an instrument will not be construed as a sealed bond, although there is a recital in the body thereof that the obligors and parties have set their hands and seals thereto: 9 Corpus Juris, § 19, page 14.

In the case before us, it is formally asserted and not denied that the printed word “Seal” which appears on the bond of the corporation purporting to attach it is not the seal of the plaintiff corporation. The identity of the alleged seal being challenged, the burden of proof is upon the plaintiff to meet this challenge. Instead of meeting the challenge, it, in effect, admits that the challenge is well taken — that the printed word “Seal” is not the seal of the plaintiff corporation.

It is true that the corporation could have adopted, generally or for this transaction, the seal used by its assistant secretary, but it is nowhere asserted that the corporation did so. In fact, it is tacitly conceded that it did not do so.

Plaintiff relies on the case of Pennsylvania Natural Gas Co. v. Cook, 123 Pa. 170. In that case the bond was signed: “Penna. Natural Gas Company, by B. F. Rafferty, Gen. Man. (Seal). B. F. Rafferty. United Gas Fuel Company, by J. M. Guffy, President. (Seal). Attest: J. M. Cooper, Secretary.” The bond was without the corporate seals, but with common scroll seals. The case was an action on this bond; the bond had already been offered and admitted in evidence and the case of the plaintiff had been closed;, then a motion was made objecting to the bond, first, because one of the corporations did not have its common seal thereon, and, second, because as to the other corporation the bond was ultra vires and void. The Supreme Court held that this motion came too late and said that they were not certain that a motion to strike it out would have availed the defendants, because they “had availed themselves of the consideration. They had obtained all they needed from the plaintiff. . . . When an agent exceeds his authority, his principal cannot avail himself of the benefit of his act and at the same time repudiate his authority. . . .” (page 183.)

In the case at bar, however, the bond was signed, not by the president and attested by the secretary, as in one instance, nor by the general manager, as in the other instance, in the case cited, but was signed by an assistant secretary. No consideration has yet passed to the plaintiff corporation, nor has it availed itself of any benefit of the assistant secretary’s act, and, therefore, it can repudiate his authority. In the case at bar, the motion to quash is not too late, but timely, and the defendant has not availed himself of any benefit under the bond.

The quotation from the above-cited case upon which the plaintiff principally relies is this, which appears on page 183 and is cited from Angelí & Ames on Corporations, § 226: “The signature of the agent of a corporation executing the instrument on its behalf, being proved, the seal, though mere paper and a wafer, stamped with the common desk seal of a merchant, will be presumed to be intended as the seal of the corporation until the presumption is rebutted by competent evidence.”

The answer to that quotation, so far as it affects the case at bar, is that if the agent who executed the bond in question had authority to execute it, the seal used by him will be presumed to have been the seal of the corporation until the presumption is rebutted. In the case before us, the agent, that is, the assistant secretary, had no prima facie authority to execute the bond; and even if he did, the identity of the seal used by him is challenged and not denied. Hence, any presumption in its favor is rebutted. If this bond had been offered in evidence in some legal proceeding, the seal used might have passed current as the seal of the corporation because its' identity was not challenged, and until it was challenged, the presumption would be that the seal used was the official corporate seal. However, a mere presumption must, of course, give way when confronted by a fact to the contrary.

We, therefore, have this situation: the alleged bond of the plaintiff corporation is not a bond at all, because it is not under the common seal of the corporation.

As was said in Leazure v. Hillegas, 7 S. & R. 313, 318: “A corporation is an imaginary being; a creature of law, which cannot act otherwise than as described by law. Its deeds are authenticated by its common seal, but that seal must be proved. It is not one of those public matters of which individuals are bound to take notice.”

In Parkinson v. City of Parker, 85 Pa. 313, 316, the Supreme Court said: “The power, says Mr. Justice Strong, in Com. v. Pittsburgh, 5 Wright (41 Pa.), 284, ‘to execute and issue bonds, contracts and other certificates of indebtedness belongs to all corporations, public as well as private, and is inseparable from their existence. It is for this they hold a common seal. . . .’ ”

In United States v. Mercantile Trust Co., 213 Pa. 411, 413, the method of executing sealed instruments by a corporation is set forth as follows: “The bond is clearly intended as a sealed instrument by the appellant. It is signed in the name of the corporation by the vice-president and the corporate seal is affixed, attested by the secretary.”

We are obliged to hold that the bond in question in this case is defective, in that the seal of the plaintiff corporation is not affixed thereto.

There is also a second question in this case. The defendant contends that the bond is defective, in that it does not show the authority of Metzger, the assistant secretary, to bind the plaintiff corporation.

1 Eastman on Private Corporations in Pennsylvania (2nd ed.), 143, makes the following statement: “The president, vice-president, secretary and treasurer of a corporation have, in general, no powers to contract for the corporation. The duties of the president are to preside and to act as a director; those of the secretary to keep the books and minutes of the company, and those of the treasurer to receive, keep and disburse the funds thereof. Whatever other duties they have are either derived from the by-laws or expressly conferred by the board of directors. They may, however, through a course of dealing known to the corporation and acquiesced in thereby, acquire implied powers which the corporation will be estopped to deny.”

What’the duties of a president and treasurer are are more fully set forth in that text-book on page 158, etc., but the duties of a secretary are omitted solely because such duties consist of keeping the books and minutes of the company.

In the case at bar, the bond was not even signed by the secretary but by an assistant secretary, an office that is unknown to the Corporation Act. Surely there should be a presumption of authority to sign the plaintiff company’s name in order for the defendant to recover on the bopd. This court cannot presume this to be the act of the corporation in the absence of some authority set forth in the bond for the assistant secretary to perform such an act.

In Hamborsky v. Magyar Presbyterian Church, 78 Pa. Superior Ct. 519, a judgment signed by the “Vice-President, Board of Trustees,” was stricken off because there was nothing in the instrument showing any authority. The instrument was under “the hand and seal of the Magyar Presbyterian Church, Scranton, Pa.,” but no seal was affixed. In that case, the Superior Court said, page 524: “We agree that not only is there no presumption of authority but that an inspection of the instrument shows such absence of authority as makes the judgment invalid and requires that the rule be made absolute. The instrument is obviously incomplete; it purports to be executed under ‘the hand and seal of the Magyar Presbyterian Church, Scranton, Pa.,’ but no seal is affixed; the signature, ‘Gregory Sandor, Vice-President, Board of Trustees,’ adds nothing by way of prima fade proof of authority; the instrument not only contains a confession of judgment but releases errors, waives stay of execution and inquisition, etc., as well as exemption of personal property from levy and sale on execution; it is obviously not an ordinary but an extraordinary transaction of a character not usually performed by any officer. While it has been held that a contract executed in the name of a corporation, signed by its president and secretary, with the corporate seal affixed thereto, is presumed to be the act of the corporation (Turnpike Co. v. Passenger Ry. Co., 194 Pa. 144, 148), we have been referred to no authority and have found none permitting us to hold that an informally-executed paper, such as is before us, can sustain the judgment entered by the prothonotary pursuant thereto. See Millward-Cliff Cracker Co.’s Estate, 161 Pa. 157; Stokes v. New Jersey Pottery Co., 46 N. J. L. 237.”

If in the case at bar the corporate seal of the plaintiff company were affixed to the bond, it might be said that the presumption was that the officer executing the bond did not exceed his authority and that the seal itself would be prima facie evidence that it was affixed by proper authority. But in this case not even the printed word “Seal” shows that it was intended as a corporate seal.

The office of assistant secretary is unknown to the Corporation Act, and, therefore, there is no presumption that an assistant secretary has the right to execute a bond in the name of the corporation as the act of the corporation. See North Penn Iron Co. v. Boyce, 58 Atl. Repr. 1094; Vandermark v. Glen Amusement Co., opinion by Leach, J., Lackawanna County, No. 1079, September Term, 1928.

In Thompson on Corporations (3rd ed.), § 1633, page 135, it is said: “Whatever may be the authority or power of the secretary as to the records and seal and as to his official acts in communicating the actions of the corporation, it is, nevertheless, the rule that he has no inherent power to bind the corporation by original contracts made by him, or by letters or documents officially signed by him, or by his statements or representations.”

In the case at bar, the burden was upon the plaintiff to file a bond in replevin, and this burden is met only when the bond filed shows on its face that it is the bond of the corporation. The bond does not bear the corporate seal of the plaintiff and neither was it executed by an official who had any authority to so execute the bond.

We might also call attention to the fact that there is no seal after the name of the surety.

The space before the first “Seal” is taken up with the name: “M. Wile and Co., Inc.”

The space before the second “Seal” is taken up with the name of “Jno. D. Metzger,” who is the assistant secretary, but who wrote the words “Asst. Secty.” in the space before the third “Seal.”

R. L. Levy, the surety, wrote his name before the words “Asst. Secty,” which words Metzger had written as stated above. So in fact the alleged bond is also without any seal of the surety executing it as well as without the official seal of the corporation whose assistant secretary executed it.

Conclusion.

From all the foregoing, our conclusion is that the bond challenged is not a bond within the meaning of the Replevin Act of April 19, 1901, P. L. 88, and that, for that reason, the writ was improvidently issued.

Order.

Now, to wit, Aug. 13, 1928, the defendant’s motion is allowed, the rule to show cause is made absolute, and the writ of replevin is quashed.

From John G-. McAskie, Scranton, Pa.