author: Fox, J.

text:
    Wilner v. Lewis, Secretary of Commonwealth, et al.

      Joseph J. Kintner and Scott S. Leiby, for plaintiff.

      William A. Schnader, Special Deputy Attorney-General, and Cyrus E. Woods, Attorney-General, for defendants.
   Fox, J.

— The plaintiff presented and filed his bill, whereupon a rule was granted on the defendants to show cause why a preliminary injunction should not be issued as prayed for in the bill. An answer raising preliminary objections to the bill was filed, and on Aug. 27th argument was heard by the court in banc.

At the argument the plaintiff moved to amend his bill, which was allowed. The substance of the bill as amended is that the plaintiff is a citizen, resident, qualified elector and taxpayer of Cambria County; that the defendant, Frank P. Barnhart, who resides in the said County of Cambria, on July 26, 1929, filed a nomination petition in the office of the Secretary of the Commonwealth to cause his name to be certified as a candidate for the nomination by the electors of the Republican Party of the 47th Judicial District of Pennsylvania for the office of judge of the Court of Common Pleas of said district to be voted for at the forthcoming primary election to be held on Sept. 17, 1929, which official shall be elected at the election to be held on Nov. 5, 1929; that the said Frank P. Barnhart attached to the said petition, now on file in the office of the Secretary of the Commonwealth, an affidavit, wherein he averred that he, the said candidate, is eligible to the said office; that the said Frank P. Barnhart is not eligible to the said office for the reason that he was convicted of the crime of forgery in the Court of Quarter Sessions of Cambria County on Feb. 19, 1919, to No. 74, December Sessions, 1918, and that sentence or judgment of the court was pronounced; no appeal was taken therefrom and no pardon has been applied for or granted; that under article ii, section 7, of the Constitution of the Commonwealth of Pennsylvania, which section provides as follows, “No person hereafter convicted of embezzlement of public moneys, bribery, perjury, or other infamous crime, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Common■wealth,” forgery being an infamous crime and the office of judge of the Court of Common Pleas of Cambria County being one of trust or profit, therefore, he is incapable of holding the said office of judge; that a great and irreparable injury will be suffered by and done to the plaintiff as well as all the other people of the said judicial district unless relief is given by enjoining the Secretary of the Commonwealth from certifying the said name of Prank P. Barn-hart as a candidate for judge of the Court of Common Pleas of Cambria County that it may appear upon the ballot to be used by the electors at the forthcoming primary election of the said judicial district; the prayer being that a preliminary injunction issue, to be made permanent upon final hearing, restraining the Secretary of the Commonwealth and his deputies from certifying to the County Commissioners of Cambria County the name of Prank P. Barnhart as a candidate for the office of judge of the Court of Common Pleas of Cambria County, the 47th Judicial District, so that his name cannot be printed on the ballot to be used at the primary election on Sept. 17, 1929, nor on the ballot of the general election to be held on Nov. 5, 1929; that the nomination petition of the said Prank P. Barnhart be refused and set aside; that a decree be entered after full hearing, declaring that the said Frank P. Barn-hart is ineligible, incapable and disqualified to hold the office of judge of the Court of Common Pleas of the 47th Judicial District.

The preliminary objections to the bill are as follows:

“1. The bill does not aver any such special interest in the plaintiff as would entitle him to ask for equitable relief, nor that the plaintiff is a taxpayer, nor any other grounds which would enable him to institute these proceedings.

“2. A nomination petition can be refused or set aside only for the reasons specifically set forth in section 8 of the Act of July 12, 1913, P. L. 719; and the bill of complaint does not set forth any of said reasons.

“3. Eligibility to hold office is not a prerequisite to nomination for office; and even if the defendant, Frank P. Barnhart, were ineligible to hold the office of judge of the Court of Common Pleas of Cambria County, your honorable court would not have jurisdiction to enjoin the defendant, Robert R. Lewis, Secretary of the Commonwealth, from certifying his name to the County Commissioners of Cambria County as a candidate for said office. Defendants deny, however, that Frank P. Barnhart is ineligible to hold said office.

“4. The bill on its face shows that the nomination petition of said Frank P. Barnhart has already been filed. It is, therefore, too late to refuse it. And a nomination petition can be set aside only under the procedure set forth in the Act of July 12, 1913, P. L. 719, its amendments and supplements. Under said legislation, your honorable court does not have jurisdiction in equity to set aside a nomination petition, as said legislation provides an adequate and exclusive remedy at law for this purpose.

“5. Your honorable court has judicial notice of the fact that said Frank P. Barnhart is now holding office as judge of the Court of Common Pleas of Cambria County. The only procedure under which his right to hold said office may be challenged is by writ of quo warranto. The present bill is an effort to try the title of said Frank P. Barnhart to his office by another and different procedure.

“6. Your honorable court does not have jurisdiction to enter a decree declaring said Frank P. Barnhart ineligible, incapable and disqualified to hold the office of judge of the Court of Common Pleas of the 47th Judicial District, exclusive jurisdiction for this purpose being vested in the Supreme Court of Pennsylvania under the Constitution of Pennsylvania.

“7. For the reasons hereinbefore stated, your honorable court does not have jurisdiction to grant any of the relief prayed for in the bill.

“8. If the plaintiff had such an interest as to entitle him to maintain proceedings in the premises, he would have an adequate remedy at law by an application to the Attorney-General of the Commonwealth of Pennsylvania for the institution of quo warranto proceedings. That plaintiff is fully aware of this remedy appears by reference to the petition in the case of Com. ex rel. Joseph A. Wilner, Julius Wilner and Edwin K. Kintner v. Cyrus E. Woods, Attorney-General, No. 26, Commonwealth Docket, 1929, filed on behalf of the plaintiff and others in your honorable court concurrently with the filing of the bill of complaint in this case.”

Immediately preceding the argument, a motion was made by the plaintiff to dismiss the preliminary objections, which motion is hereby overruled.

By the amendment of the bill, the first of the preliminary objections is eliminated.

The substance of the remaining preliminary objections goes to the jurisdiction of the court to grant equitable relief as prayed for and the capacity of the defendant, Frank P. Barnhart, to hold said office.

The Act of July 12,1913, P. L. 719, by section 8, provides as follows:

“No nomination petition shall be refused or set aside except for—

“(a) Material error or defects apparent on the face thereof or on the face of the appended or accompanying affidavits; or

“(b) Material alterations made after signing, without the consent of the signers; or

“(c) Want of a sufficient number of genuine signatures of persons qualified, with respect to age, sex, residence and citizenship to be electors.

“The invalidity of any sheet of a petition shall not affect the validity of such petition, if a sufficient petition remains after eliminating such invalid sheet.

“Application to set aside any nomination petition shall be by petition to the Court of Common Pleas of the county in which such nomination petition has been filed, setting forth specifically the matters objected to, and must be filed within five days after the last day for filing said nomination petition. Upon the presentation of such a petition, the court shall make an order fixing a time for hearing, which shall not be later than ten days after the last day for filing said nomination petition and specifying thei time and manner of notice that shall be given to the candidate named in the nomination petition sought to be set aside.”

We have a number of lower court decisions which in effect hold that the foregoing numbered section prescribes a definite and exclusive remedy to set aside nomination petitions and limits the grounds upon which the same may be done, but we find no positive appellate court decisions upon the subject. Our own court, by Kunkel, J., has rendered several opinions which we think are pertinent. In the case of Reid’s Nomination, 26 Dist. R. 534, an objection was filed to the nomination petition of a candidate for mine inspector on the ground that the candidate was not a resident of the district in which the office was to be filled, and the court, inter alia, said: “The only objection urged upon us at the hearing goes to the qualification of the candidate for the office for which he was named. It may well be doubted if we have power in this proceeding to pass upon such a question.” In Com. v. McAfee, 9 Dauphin Co. Reps. 183, the court said: “And this court has heretofore held that it is the duty of the officer to receive and file every certificate of nomination or nomination paper which is regular on its face, and that no authority is given to him by this section to hear and determine controverted questions of fact or law: Jeffries v. Griest, 3 Dauphin Co. Reps. 228 (9 Dist. R. 683); Com. ex rel. Leonard v. Reeder, 3 Dauphin Co. Reps. 51 (5 Dist. R. 600).

“The return to the alternative writ of mandamus shows that the respondent refused to receive and file the present nomination paper because it contained a nomination for the office of senator for a senatorial district which he alleges does not exist. This is expressly deciding a question which he has no authority to decide. The reason which he gives for refusing to receive and file the paper does not appear upon the face of the paper, but depends upon matters outside of it. Such matters he is not authorized to consider. Upon objections that go to the validity of the nomination he may not pass. If, upon examination of the paper, it be found to be regular, it is his duty to receive and file it. This nomination is made on the blank furnished by the Secretary of the Commonwealth. It is not pointed out to us that the paper is deficient in anything the act of assembly requires. It is, therefore, entitled to be filed, and judgment is ordered to be entered in favor of the plaintiff.”

In Abbott’s Nomination, 1 D. & C. 600, the court held: “This proceeding is purely statutory, and our power to set aside a nomination paper is severely restricted to explicit statutory grounds, among which the only pertinent one is thus expressed in section 8 of the Act of July 12, 1913, P. L. 719, 730.”

In Nicholson v. Earle, 20 Dist. R. 781, Sulzberger, P. J., said:

“This is a bill in equity praying for a perpetual injunction to restrain the county commissioners from printing or causing to be printed the name of George H. Earle, Jr., as a candidate for the office of mayor on the ballot to be used by the Republican Party at the primary election to be held on Sept. 30, 1911. The ground upon which this relief is asked for is in effect that, if elected, the said Earle could not hold the office by reason of being ineligible therefor.

“No precedent has been furnished us for such a proceeding. Neither the Constitution nor the general equity act confers upon the courts of this Commonwealth the power of directing, superintending or controlling the action of the electors in voting for candidates. If we possess any power in the premises, it must be derived from the series of acts constituting the primary election law. A careful examination of these shows that the only jurisdiction in any wise conferred upon the courts is to consider objections to nomination papers when duly filed, and the character of the objections so to be considered by the court is limited to averments that a nomination paper filed was filed by parties not entitled, or that being filed by parties entitled, it has some defects of form which the court may correct.

“It is obvious that these provisions are totally inadequate to enable us to exercise the power invoked.

“The primary election laws were enacted for a definite purpose. They were intended to enlarge the powers of electors in making nominations beyond those which they exercised before. There was no thought of interfering with the freedom of the electors as to the persons whom they were to choose. On the contrary, the object of the act was to give electors greater freedom.

“To hold that in the present state of the law a court of this Commonwealth can abridge the freedom of electors to vote for whom they choose would be a clear usurpation of authority.”

Judges Wiltbank and Barratt concurred in the opinion that the court was without jurisdiction to sustain the plaintiff’s bill.

The case of Mosby et al. v. Armstrong et al., 75 Pitts. L. J. 649, was a prayer for a bill for a preliminary injunction to restrain the county commissioners from printing the name of Robert C. Woodside, one of the defendants, who was a candidate for the Republican nomination of the office of County-Comptroller of the County of Allegheny to be balloted for at the primary election succeeding, on the ground that the said candidate was ineligible to hold the office of comptroller, for the reason that two full years had not expired since the term of office of said Woodside as sheriff of said county had expired. The defendants filed an answer raising preliminary objections to the bill, and amongst them was one that the court was without power to determine the right of the said Woodside to be a candidate for the said office of sheriff. The court, amongst other things, said: “We are of the opinion, for the reason hereinafter stated, that the court is without jurisdiction to grant the relief prayed for, and, therefore, we do not discuss the question of eligibility which is raised by the bill, confining ourselves simply to the question of jurisdiction.

“The general Primary Act of July 12,1913, P. L. 719, presents the law now in force and applicable to this case so clearly that but little more need be done than to quote the appropriate section of that act with the provisions which it contains with regard to attacks upon nomination petitions.

“Section 8 of the act referred to is as follows: ‘No nomination petition shall be refused or set aside except for . . .’ [Provisions hereinbefore quoted.]

“The above provisions present a plain, definite and exclusive remedy to set aside nomination petitions, as well as defining the only ground on which they may be set aside by the courts. The bill before us is to restrain the printing of the candidate’s name upon the ballots, and if the court were to grant the prayer of the bill to that effect, it would simply be setting aside the plain provisions of the act of assembly just quoted, which so clearly intended to provide the only remedy available for one who seeks to prevent the name of the candidate from being presented to the voters at the polls. Consequently, Ü we were to grant the prayer of these complainants, we would be adding an additional ground and further reason to these specified in the act, which we are clearly without authority to do, where, as here, this remedy is provided by the act of assembly. Consequently, no power remains in the court to grant further relief under the guise of jurisdiction in equity. Complainants have full and adequate remedy at law by which, if they see fit to do so, they may attack the eligibility of a candidate in the usual manner in the event of his election. However, we are not discussing the merits of this case or any other question save that of jurisdiction, which is so clearly with the respondents that we have no doubt as to our duty in the matter.”

An appeal to the Supreme Court was taken in this case (290 Pa. 517). A motion was made by both plaintiffs and defendants that the appellate court should take jurisdiction of the ease and decide the question of the candidate’s eligibility for the office of comptroller as though the proceeding in the court below had been for a declaratory judgment, determining the candidate’s legal status in that regard and as though the point of law had been decided in his favor. The court, considering the case as requested, affirmed the decree of the lower court, and in so doing, the Chief Justice, in writing the opinion, among other things, said: “We are far from convinced that the court below erred in dismissing plaintiff’s bill without considering the eligibility question.”

We have read and considered carefully the cases cited by the plaintiff on the question of jurisdiction and we find none pertinent to this case.

Forgery is an infamous crime, and one convicted thereof under article II, section 7, of the Constitution shall not be eligible to the General Assembly or capable of holding any office of trust or profit in this Commonwealth.

In the case of Com. v. Pyle, 18 Pa. 519, relied upon by the plaintiff, the Supreme Court, through Black, C. J., said: “Where ... a statute declares that certain disqualifications shall render a person ineligible to an office, he must get rid of his disqualification before he is . . . elected. But if the law merely forbids him to hold or enjoy the office,.... it is sufficient that he qualifies himself before he is sworn.” If, therefore, one has a disqualification which renders him incapable of holding a particular office of trust or profit in this Commonwealth, he has the right, until he is elected or sworn, as the case may be, into the office, to have the disability removed. It may fairly be deduced from this opinion that one being incapable to hold an office at the time of a primary election may be a candidate for the office, and if the removal of the incapacity or disability is procured before election or before he is sworn in, as the case may be, he may hold the office. If that is so, then it would be inequitable for a court of equity to interfere with his candidacy on the ground of his incapacity.

In 22 Ruling Case Law, 402, section 43, relating to the time for qualification, it is said: “The courts do not agree as to the time at which the eligibility or qualification of a person for public office must be determined. The question has arisen most frequently under statutory or constitutional provisions using the word ‘eligible’ in connection with certain qualifications or disqualifications for public office. One line of authorities holds that the time of election is the proper time to test whether a person is qualified or eligible, and that it is immaterial that a person then disqualified removes the disqualification before actually entering on the duties of the office. For example, a constitutional provision that persons of foreign birth who have not declared their intention to become citizens of the United States are ineligible to any elective office has been construed as disqualifying such persons from being legally elected, so that they cannot hold office even though, after being elected, they declare their intention to become citizens. The reasoning supporting this view is that the electors, in making the choice, should be confined to the selection of such persons only as are not then under any legal disqualification to exercise the powers and duties of the office, so that they can then know that when the choice is made and legally declared, the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will from becoming effective. But the weight of authority appears to be that where the word ‘eligibility’ is used in connection with an office, and there are no explanatory words indicating that such word is used with reference to the time of election, it has reference to the qualification to hold the office, rather than the qualification to be elected to the office.”

In the instant case, if the defendant, Frank P. Barnhart, has been convicted within the meaning of the word “convicted” as used in the said article II, section 7, of the Constitution, then he is not capable of holding the office which he seeks, but he may, before election, have the incapacity removed by a pardon, and he then would be qualified, if elected, to hold the office. But should he fail to have the disqualification removed, then the relator and others who wish to join him have an adequate remedy at law to prevent his taking and holding the office.

The plaintiff contends that the defendant, Barnhart, has perpetrated a fraud in the affidavit of his petition, in which he swears that he is eligible to hold the said office. It may be that he is ineligible or the contrary may be the case. The primary election law is purely statutory and makes no provision for the consequences in the case of a false statement in the affidavit. The Governor of the Commonwealth who appointed the said Frank P. Barnhart to fill a vacancy in the office of judge, and the Attorney-General, who was asked to proceed by quo wwrramio against the said defendant, but refused so to do, obviously thought the defendant to be capable of holding this office; it may be that the defendant and these two high officials are correct in their opinions. On the other hand, it may be an error, but we think that if the defendant in his affidavit to the petition was in error as to his eligibility, it would not be such a fraud upon the Commonwealth or any one else that under the power given to courts of equity in matters of fraud it would empower the court to take hold of this matter. Its power with respect to primary elections being, as has been frequently said, purely statutory.

With respect to the other request, that a decree be entered declaring that the said Prank P. Barnhart is ineligible, incapable and disqualified to hold said office of judge, in view of what we have hereinbefore said, we deem it beyond our province, in this case, to pass upon the question of eligibility. But however that may be, if we were to balance the equities in this case, they are all with the defendant, Barnhart. The people of the county will have lost no right, because his rights to hold office can be tested subsequent to the election, but if he is deprived of having his name on the ballot and the people deprived of voting for him, and it should subsequently be determined that he was eligible, a very serious injury would be done both to him and the people of the judicial district which could not thereafter be remedied.

Wherefore, we are of the opinion that the nomination petition in question can be set aside only for any of the reasons enumerated in section 8 of the Primary Act of 1913; that capacity to hold office such as the one in question is not a prerequisite to nomination, the Legislature not having specified this requirement in the statute regulating nominations, and that there is no general equity jurisdiction to prevent the filing of the petition of an ineligible person seeking a nomination for such office as the one in question.

And now, Aug. 31, 1929, upon due consideration, it is hereby ordered, adjudged and decreed that the preliminary objections to the bill, excepting No. 1, are sustained, the rule is discharged and the bill is dismissed, at the cost of the plaintiff.

Prom Homer L. Kreider, Harrisburg, Pa.


source: Caselaw Access Project

author: Patterson, P. J.,

license: Public Domain

text:
    Winslow v. Snyder.

      J. J. Haberstroh, for plaintiff.

      J. F. Sullivan and G. G. Patterson, for defendant.
    Jan. 3, 1930.
   Patterson, P. J.,

— This is a motion for a new trial filed by defendant. Robert B. Winslow, plaintiff, a sub-contractor, brought suit against John C. Snyder, general contractor, defendant, to recover an amount claimed to be due for work done on several school buildings in the City of Altoona. The case was tried before a jury at the May Term, 1929, and verdict rendered in favor of the plaintiff for $7750. The trial extended over three days and many witnesses were called. The motion contains eight reasons for the granting of a new trial. The first and fourth reasons are stressed by counsel as the more important.

It is argued that certain remarks of the counsel for the plaintiff in his closing address to the jury were improper and prejudicial to defendant and that as a result of this prejudice the jurors brought in an excessive verdict; that there was much disputed testimony and that the plaintiff admitted certain erroneous charges and credits amounting to a considerable sum, but, notwithstanding such testimony, the amount of the verdict was almost the full amount of plaintiff’s claim; that the amount of the verdict supports the argument of counsel to the effect that the testimony of the defendant and his witnesses was to a great extent, if not altogether, disregarded by the jury as a result of the prejudice in their minds due to the fact that counsel referred to the defendant as a “million-dollar contractor.” The record of the first exception is found on page 115 of the testimony, and is as follows: “Counsel for defendant takes exception to the remark of counsel for plaintiff wherein he refers to the defendant contractor as the millionaire contractor and asks that a juror be withdrawn and the case continued.” “By the court: As far as we know, these men may both be very poor or very rich, and there is no use branding one man as a poor man and another as a rich one. We will instruct the jury not to take into consideration any such remarks in considering this case. We will deny the motion, note an exception and seal a b'ill for the defendant.”

This exception was taken during the argument of plaintiff’s counsel to the jury. At the oral argument on this motion it was contended on the part of counsel for plaintiff that what he said was not “millionaire contractor,” but that he referred to the defendant as a “million-dollar contractor.” The court stenographer, in referring to the original notes, finds that the term used was “million-dollar contractor” and not “millionaire contractor,” and that the transcribed record is in error in that respect. At the time the exception was made, counsel for plaintiff neither denied nor verified the charge. Neither did he withdraw the same from the consideration of the jury. It is contended on the part of the defendant, however, that it makes little difference in the consideration of this case whether the term “millionaire contractor” or “million-dollar contractor” was used; that the prejudice resulting therefrom would be the same. This court cautioned the jurors at the time to disregard such statement, and in the charge we again admonished them to try the case without any prejudice and to scrutinize the testimony “without any regard for the persons involved, whether they may be rich or. poor, determine this case on the testimony and bring in such verdict as you think right and proper.”

Counsel for the plaintiff argues that the remark made is not properly stated of record; that counsel for the defendant failed to have the stenographer note the statement of counsel for the plaintiff at the time. We are of opinion, however, that the matter is properly of record. Defendant’s counsel interrupted plaintiff’s counsel at the time the remark was made and moved the court to withdraw a juror and continue the case for the reason that “he refers to the defendant contractor as the millionaire contractor.” And although “millionaire contractor” was placed upon the record instead of “million-dollar contractor,” as counsel and the record now disclose was the correct term, no denial, explanation or withdrawal of said remark was made at that time.

One of the leading cases is found in Lopresti v. Sulkin, 49 Pa. Superior Ct. 417, where the matter complained of is set forth in a motion from the record very similar in all respects to the motion in the present case. In that opinion Judge Rice says: “The general rule is that a motion to withdraw a juror and continue the case upon the ground of objectionable remarks made by counsel in addressing the jury is addressed to the sound judicial discretion of the court, and its refusal of the motion is reversible only for abuse of discretion: Com. v. Ezell, 212 Pa. 293; Com. v. Striepeke, 32 Pa. Superior Ct. 82. But there are certain kinds of objectionable remarks which have been held to be so prejudicial in their nature as to be beyond correction by any admonition the court may give the jury to disregard them. In such cases, it is the imperative duty of the court, upon its attention being properly called to the remarks and being satisfied that they were made, to withdraw a juror and continue the case, even though the court may be of opinion that its admonition was sufficient to prevent them from prejudicing the jury.” And in the same opinion Judge Rice cited the case of Cook v. Erie Electric Motor Co., 225 Pa. 91, where counsel for plaintiff, in commenting on the evidence and the damages that should be awarded, said: “This great millionaire company don’t deny that.” And the Supreme Court said in that case: “It has been frequently held that in this class of cases no irregularities should be permitted which tend to inflame the prejudices of the jury against the defendant, and in a flagrant case this court will reverse for such error. But so much depends on the immediate circumstances and what may be called the atmosphere of the trial that a large discretion must be allowed to the trial judge. In the present case, the action of the judge in cautioning the jury was so prompt and the withdrawal of the improper remark by counsel was so frank and unreserved that we cannot say that the judge did not use a wise discretion in refusing to withdraw a juror.” In the case now under consideration, the record does not disclose, and we have no recollection of, any explanation or withdrawal of the remark from the consideration of the jury. We are satisfied that a reference to the defendant as a “million-dollar contractor” may have prejudiced the minds of the jurors. And as was so well said in Wenner v. Pardee Bros. & Co., 21 Luzerne Legal Reg. 365; “The fact remains that the remark appealed to that most pernicious prejudice of the human mind which foments class hatreds and often threatens to destroy civilization itself, viz., the prejudice of poor against rich.” Counsel may not have intended to prejudice the jurors against the defendant, but whether intended or not, the jury had the statement of counsel that the defendant was a “million-dollar” contractor, and it is impossible ever to know to what extent such a remark influenced their verdict. The case was that of a sub-contractor who, as a general rule, files no bond, against a general contractor who must have such financial rating as will permit him to file the bond required for the work to be done. We are of opinion, after careful consideration of the law and the arguments of counsel and that justice might be done, that a new trial should be granted. This conclusion is sustained by the cases already cited as well as Kelly v. Scranton Ry. Co., 270 Pa. 77; Dannals v. Sylvania Township, 225 Pa. 156, 164, 165; Saxton v. Pittsburgh Rys. Co., 219“ Pa. 492; Walsh v. Wilkes-Barre, 215 Pa. 226; Carothers v. Pittsburgh Rys. Co., 229 Pa. 558.

Referring to a defendant as a million-dollar contractor is not any more prejudicial than for counsel to state the amount in damages an action in trespass had been brought to recover. It has been repeatedly held by the Supreme Court that such a statement is so prejudicial that a juror should be withdrawn and the case continued.

In Carothers v. Pittsburgh Rys. Co., supra, the Supreme Court held: “In this case it is just to counsel, who was from another state, to say that the remark complained of was made in good faith and without knowledge of our decisions on the subject, and to the learned trial judge that he did all in his power, by proper instructions, to correct the error complained of. It is better, however, that the rule should be fixed and that cases of this kind should be put in line with Holden v. Pennsylvania R. R. Co., 169 Pa. 1 . . . and kindred cases in which this court has taken a stand against every attempt to obtain an unfair advantage in the trial of a cause,” The motion is, therefore, sustained and new trial granted.

Exception noted for the plaintiff.

From Robert W. Smith, Hollidaysburg, Pa.


author: McConnell, J.

text:
    Baldwin, Trustee, v. Woodlawn Land Company.

      George A. Baldwin, for plaintiff; Harold F. Reed, for defendant.
   McConnell, J.

— This action in assumpsit has been brought by the plaintiff against the defendant to recover $4047.73, with interest from Sept. 10, 1928, being a balance alleged to be due by the defendant to the plaintiff on account of the construction, by Earl E. Shaffer, a contractor, for the Woodlawn Land Company of several houses in the Borough of Aliquippa, in the County of Beaver and State of Pennsylvania. These houses were constructed under several articles of agreement marked exhibits “A,” “B” and “C.” These agreements are all the same except with reference to the kind of building that is to be constructed, etc. They are all what are ordinarily known as “no lien contracts,” and, as required by the acts of assembly, were properly recorded in the Prothonotary’s Office of Beaver County. The 18th paragraph of all of these contracts contained the stipulation under which neither the contractor nor any one else was to file any lien against the premises for either work done or material furnished; and also contained this stipulation:

“And that said construction work, structure or structures shall be finished and delivered to the ‘Company’ free, clear and discharged from all liens, incumbrances and charges whatsoever, and without any liability on the part of the ‘Company’ other than the agreed liability for the amount, if any, due in accordance with the terms of this contract.”

They provided for the usual supervision of the work by the architect, and in the 33rd paragraph of the contract is contained the stipulation out of which arose this action. This paragraph provided as follows:

“It is further agreed that the final payment for the work done under this contract shall not be made by the ‘Company’ to the ‘Contractor’ until the ‘Company’ shall have received proof that all claims for materials and labor have been paid and the ‘Contractor’ shall have furnished to the ‘Company’ a release, under seal, releasing and discharging the ‘Company’ from any and all claims, damages or expenses growing in any manner out of this contract.”

The statement of claim sets forth, among other things, that the buildings provided for in these contracts were fully completed before Sept. 10, 1928, as required by the plans and specifications accompanying each of said contracts; that the said buildings had been finished and delivered to the defendant free, clear and discharged of all liens, encumbrances and charges whatsoever and without any liability on the part of the defendant other than the agreed liability for the payment of the amounts mentioned in said contracts; that the defendant still owed the plaintiff on account of said contracts the sum of $4047.73; that the plaintiff was ready to furnish and had tendered to the defendant a release, under seal, releasing and discharging the defendant from any and all claims, damages or expenses growing in any manner out of said contracts, or any of them; that defendant had refused to pay to the plaintiff the said balance due on account of the completion of said contracts.

After this statement of claim was filed and served the defendant filed an affidavit of defense, in which it admitted the making of the said contracts, the completion of the buildings provided for therein according to the plans and specifications, and admitting that there would be due to the plaintiff on account of said contracts the sum of $4047.73, if the plaintiff had fully complied with all of the terms and conditions of said contracts. The affidavit of defense, however, allegés that the plaintiff has failed to furnish the defendant proof that all claims for materials and labor have been paid by the said contractor and that the contractor had not furnished to the “Company” a release, under seal, releasing and discharging the “Company” from any and all claims, damages or expenses growing in any manner out of this contract; and that as a matter of fact a number of persons who furnished material and labor to the contractor in the completion of said contracts had not been paid; that there is due from the said Earl E. Shaffer, as contractor, to sub-contractors on said buildings the sum of $5903.38, and attached to the affidavit of defense is an itemized statement of the amouhts due and unpaid to the several subcontractors on said buildings. In the affidavit of defense it is averred by the defendant that it holds the balance due the said Earl E. Shaffer, to wit, $4047.73, in its hands as trustee for the sub-contractors or until evidence is produced to the defendant that payment has been made to the said sub-contractors by the said Earl E. Shaffer; and the Woodlawn Land Company also avers that it makes no personal claim upon the balance of $4047.73 remaining in its hands on account of the jobs mentioned in said contracts, stating that it desires to make payment to the party or parties entitled thereto pursuant to paragraph 33 of said contracts when its provisions have been complied with by the contractor.

A motion has been made by the plaintiff for judgment against the defendant for want of a sufficient affidavit of defense, it being contended on the part of the plaintiff that paragraph 33 of the contracts sued on does not have to be complied with by Earl E. Shaffer before he is entitled to recover the balance due under the terms of said contracts; that the fact that the defendant has not been given proof that all claims for material and labor have been paid was not of the essence of the contract; that the defendant has not been damaged through the non-compliance therewith by Earl E. Shaffer; that paragraph 33 of said contracts did not bind the defendant to pay for any of said materials or labor in case of default by the contractor in such payments; and that the persons furnishing the labor and material to the contractor are not privies to said contract and have no rights thereunder by virtue of paragraph 33 in each of said contracts; and that even though the plaintiff has not complied with the terms and conditions of paragraph 33 of the contract by furnishing proof that all claims for materials and labor have been paid, and even though it be true that there is due from the contractor to sub-contractors more than the balance in the hands of the Woodlawn Land Company, still the plaintiff is entitled to recover, since he has completed the work of constructing the buildings mentioned in said contracts in accordance with the terms and conditions thereof.

The main question to be determined by the court in this case is whether the plaintiff can recover without showing compliance with the provisions of paragraph 33 in these contracts.

The general rule is that a contractor who has agreed to do a certain piece of work in a certain manner cannot recover for his work unless he first shows that he has fully complied with all the terms of the contract, so fas as he is concerned, and that if he fails to comply with the conditions contained in the contract he cannot recover anything for his work. This general rule is set forth in 2 Williston on Contracts, § 675, as follows:

“As a general rule, conditions which are either expressed or implied in fact must be exactly fulfilled or no liability can arise on the promise which such conditions qualify. The reason for this is obvious. The promisor can only be held liable according to the terms of the promise which he makes. If he promises five dollars, he cannot be made to pay $5.01. For the same reason, if he makes a promise to do an act on condition that he receives $5.01, he cannot be required to perform on being paid $5.00. The condition is part of his promise qualifying and limiting it, and his promise as matter of plain fact is not broken until the condition has happened or been performed. Thus, where a promisor was given the option of canceling a charter party ‘if the steamer does not arrive at port of loading and be ready to load on or before midnight of the 10th of October,’ he was held entitled to cancel the charter, though the vessel arrived at 11 P. M., as it was not ready for loading until the following morning. Similarly insurance policies, building contracts, contracts of sale and other contracts, frequently contain express conditions which must be exactly performed in order to create liability on the contract; and the fact that non-performance of the condition or incomplete performance of it has caused no injury to the promisor is immaterial.”

And the same general principle is set forth in 13 Corpus Juris, 627, § 693, as follows:

“The general rule is that the parties to a contract are bound to perform it according to its terms where they are sui juris, the contract violates no rule of law or public policy and no fraud or imposition has been practiced, particularly when it has been executed by the other party, although it may be difficult to determine the rights of the parties on a breach, or although the contract operates harshly or unjustly on one of the parties. Although a contract may contain some provisions which are so harsh and inequitable that they will not be enforced in equity, it has been held that equity will not on that account refuse to enforce its valid provisions.”

And the same principle has been adopted in this State and followed in many cases since Martin v. Schoenberger, 8 W. & S. 367, where Burnside, J., in delivering the opinion of the court, among other things, said (page 368):

“On the other hand, it was contended he was bound to aver and prove performance, and if he failed in that, he could not recover; and so has the law ever been held in Pennsylvania. Questions of this kind are of frequent occurrence and of great practical importance.- To permit a man to recover for part performance of an entire contract, or to permit him to recover on his agreement where he has failed to perform, would tend to demoralize the whole country. If the law were so, a man would just perform as much of his contract as would suit his convenience or cupidity; all faith and fair dealing would be at an end, and all confidence between man and man would be destroyed. The law is settled in Harris v. Liggett, 1 W. & S. 301, that he who has performed a special agreement to do a particular thing may recover the stipulated price of it by an action of indebitatus assumpsit, and use the agreement as evidence of the amount of compensation due. But if there be but part performance by the plaintiff of his part of the contract, he cannot recover. So in Shaw v. Turnpike Co., 2 P. & W. 454; 3 Ibid., 445, where a contract is entire, before any recovery can be had of the consideration money, the plaintiff must prove that he has performed or is ready to perform his part of the contract, or that the performance was prevented by the defendant. The judge properly held to the written contract, and he instructed the jury, as he ought to have done, that if they found the plaintiff had violated his engagements, he could not recover.”

This principle of the law, of course, has been modified in certain cases under certain conditions for the purpose of securing an equitable adjustment between the parties, and it has been especially modified in the case of building contracts, where the rule as to substantial performance has been followed by our courts for many years, and this rule is quite well stated in 9 Corpus Juris, 739, § 78, as follows:

“4. Substantial Performance — a. In General. The hardship of the rule requiring strict performance in order to permit recovery on a contract generally, when applied to a builder who has undesignedly violated his contract, and the inequitable advantage that it gives to an owner who receives and retains the benefit of the builder’s labor and materials, have led to its qualification; and it is generally held that, where the compensation is due only on the performance of the contract, a literal and strict performance is not required, and if the builder, acting in good faith and intending and attempting to perform his contract, does so, he may recover the contract price, notwithstanding slight and trivial defects or deviations in performance, for which compensation may be made, in all its material and substantial particulars, by an allowance to the owner; but the owner is entitled to an allowance for the damages he may suffer by reason of the failure to perform strictly, such as the cost or expense of putting the structure or work in the condition called for by the contract. The right of the builder to recover, however, does not apply where he performs the contract in a careless and negligent manner, and he must have attempted in good faith to perform.”

This modification, however, of the rule with regard to contractors has arisen from the very necessity of the ease and for the purpose of doing justice between the parties, and for no other reason. When a building is constructed by a contractor, there are many details contained in the plans and very many provisions contained in the specifications which have to be followed by the contractor, and when the building is finally completed or finished, it has to remain, if it is to be used at all, in the place where it has been originally constructed, and under these circumstances it would be an unconscionable thing to allow one who has received the benefits of another person’s labor and material to enjoy the fruits thereof and refuse to pay anything to the contractor for what he has done. Therefore, there has arisen the rule that where a contractor has made an honest effort to complete a building according to the plans and specifications, but unintentionally has failed of complete performance in some minor particular, he is, nevertheless, entitled to his pay, subject to a deduction for incomplete or defective work. We can, however, find no case which allows a contractor who has entered into an agreement to do a certain thing in a certain way, as the contractor did in this case, and then simply neglected or refused or been unable to comply with his contract on account of what he himself has done, to brush aside the terms and conditions of the contract and make the defendant pay in disregard of the terms of the original contract.

The stipulation contained in paragraph 33 of the contract is one which both Earl E. Shaffer and the defendant had a right to insert in the contract; it is in no way against public policy nor immoral. As a matter of fact, it is a provision which, while it does not particularly benefit the defendant, is for the benefit of those who furnish labor and material upon the buildings constructed for the defendant, for which the defendant might naturally feel morally bound to pay. The defendant evidently did not desire to have, in the buildings which it was constructing, any labor or material which had not been paid for, and, therefore, it had a perfect right to stipulate that the contractor should not receive final payment for the work until he should furnish proof to the owner that all claims for material and labor had been paid.

We can see no reason why the defendant is not entitled to insist on these claims being paid before the contractor is paid, and certainly the contractor or his representative, the trustee in bankruptcy, has not, under the terms of the contract, any moral right to the balance in the hands of the defendant until he settles the claims for labor and material.

Furthermore, as a matter of justice and right, we can see no reason why the balance in the hands of the defendant due on account of the construction of these buildings should not go to the sub-contractors who furnished labor and material in the construction of these houses instead of going into the hands of the trustee in bankruptcy to be distributed to the general creditors of Earl E. Shaffer; and it seems to us that the sub-contractors themselves have some rights and ought to be protected in the appropriation of this fund, for, while they furnished the material and labor under an agreement which was a no-lien contract, and while they knew that they could file no lien for anything they did toward the construction of these houses, they also knew that, in accordance with the same contract, the contractor himself could receive no final payment until he had made payment for all of the labor and materials which went into the construction of the houses mentioned in the said contracts, and probably relied on this provision in the contract to secure payment of their claims, and they are entitled to such protection as we can give them.

If the fund in the possession of the defendant goes into the hands of the trustee in bankruptcy, then the sub-contractors lose the benefit which they had under the written agreement between the defendant and Earl E. Shaffer, and this provision of the contract is brushed aside without any benefit to any person who is directly interested therein. Earl E. Shaffer is not benefited, because he is in bankruptcy, and whatever goes into the hands of the trustee goes to his general creditors. The defendant is not benefited in any way and neither are the sub-contractors, who would simply come in as general creditors against the trustee in bankruptcy.

Therefore, so far as we can see, there is no necessity which would justify the court in setting aside the provisions of paragraph 33 of the contracts between the defendant and Earl E. Shaffer, and there is nothing in justice or in equity which would require this to be done. As a matter of fact, there is greater equity in refusing to allow the plaintiff to recover and in permitting the defendant to distribute the balance in its hands to those who furnished labor and material in the construction of defendant’s houses and to whom the balance in the hands of the defendant justly belongs.

The only question which caused us to hesitate to refuse to allow the plaintiff to recover until he had shown compliance -with paragraph 33 of the contract was the fact that perhaps the defendant might be able to hold this balance in its hands and refuse to settle for the sub-contractors’ claims, but we are satisfied, after carefully examining the law, that, in view of the statements contained in the affidavit of defense, the defendant holds the balance of said money in its hands as trustee for the sub-contractors and that the defendant makes no personal claim upon the balance of $4047.73 remaining in its hands, and that it desires to make payment to the party or parties entitled thereto pursuant to paragraph 33 of the contracts sued on; that if the trustee in bankruptcy is unable to recover in this case, and the balance of $4047.73 is permitted to remain in the hands of the defendant, the sub-contractors themselves may then proceed against the Woodlawn Land Company, if necessary, and compel it to-pay the sub-contractors their pro rata share of this balance.

Generally, of course, it'is true that one who is not a party to a contract cannot sue upon the contract, and where the action is covenant, this rule still holds good. Nevertheless, there are many exceptions which have been made by the courts of this Commonwealth to this general principle, and they are well stated by Mr. Justice Simpson in the case of Tasin v. Bastress, 284 Pa. 47, 54, as follows:

“If the reason given by the court below for refusing a recovery by plaintiffs in their own names furnished the conclusive test of their right in that regard, then not only was Tasin v. Bastress, supra, improperly decided, but so, likewise, were all our other cases in which the beneficiary was allowed to sue in his own' name. True, in most of them it was assumed or the fact was that a fund was left in the hands of the particular defendant to enable him to pay the obligations for which he thus became liable; but this did not make the plaintiffs in those eases other than strangers to both the contract and the consideration moving to the defendants. Indeed, if the conclusion of the court below is correct, it would be difficult to find cases in which the beneficiary would be allowed to sue, for he is always a stranger to the contract, and if he furnished the consideration moving to the promisor, then the promise may well be said to have been made to the promisee, as agent of the beneficiary, thus, in legal effect, being made to the beneficiary himself: Hubbert v. Borden, 6 Wh. 79.

“The general question at issue has long been the cause of many conflicting decisions, and probably will continue to be so until it is settled, if it can be, by legislation. Quite generally, the subject-matter has been divided into two classes, (1) where the beneficiary is a donee, the promisee being under no legal liability to him; and (2) where the beneficiary is a creditor of the promisee, in which case the fulfillment of the promise would relieve the promisee of his obligation to pay the beneficiary. In some courts of last resort, different rules are applied in the two classes of cases, but there are at the present time only a few jurisdictions which hold that the donee beneficiary cannot sue in his own name: Corbin’s American Edition of Anson on Contracts, page 339; 1 Williston on Contracts, § 368. The reason for this conclusion rests in the fact that, as the promisee would lose nothing by a breach of the contract, he could never recover more than nominal damages, and, hence, if the beneficiary could not sue, the promisor could retain the fruits of the contract without fulfilling its obligations. In view of this, it necessarily follows that where, as here, the beneficiary is the only one who can be substantially benefited by such a promise, he should be allowed to recover in some form of action (Kountz v. Holthouse, 85 Pa. 235; Hostetter v. Hollinger, 117 Pa. 606, 611; Edmundson’s Estate, 259 Pa. 429, 435; McBride v. Western Penna. Paper Co., 263 Pa. 345, 349; Depuy v. Loomis, 74 Pa. Superior Ct. 497), and, hence, in certain jurisdictions, equity will compel specific performance of it when requested by the beneficiary so to do: 1 Williston on Contracts, §§ 358, 359; Corbin’s American Edition of Anson on Contracts, page 350. With us, equity originally had to be, and still is, administered in courts of law by actions of assumpsit, and no reason appears why it may not be in this class of cases. Indeed, it always has been.”

See, also, Blymire v. Boistle, 6 Watts, 182; Edmundson’s Estate, 259 Pa. 429, 433, where Mr. Justice Mestrezat says:

“In Howes v. Scott, 224 Pa. 7, 10, it is said : ‘At common law, no one could maintain an action upon a contract to which he was not a party. This rule is well established in this country, and it is recognized by both state and Federal courts. There are, however, exceptions to the rule which, in this State, are as well settled as the rule itself. For nearly three-quarters of a century, since the decision in Blymire v. Boistle, 6 Watts, 182, the decisions of this court have uniformly recognized and enforced the exceptions whenever the facts of a case required it.’ In Adams v. Kuehn, 119 Pa. 76, 85, Mr. Justice Williams, delivering the opinion, says: ‘Where one person enters into a contract with another to pay money to a third, or to deliver some valuable thing, and such third party is the only party interested in the payment or the delivery, he can release the promisor from performance or compel performance by suit.’ He then notes some of the exceptions to the general rule at common law that a person could not maintain an action upon a contract to which he was not a party, as follows: ‘Among the exceptions are cases where the promise to pay the debt of a third person rests upon the fact that money or property is placed in the hands of the promisor for that particular purpose. Also, where one buys out the stock of a tradesman and undertakes to take the place, fill the contracts, and pay the debts of his vendor. These cases, as well as the case of one who receives money or property on the promise to pay or deliver to a third person, are cases in which the third person, although not a party to the contract, may be fairly said to be a party to the consideration on which it rests. In good conscience, the title to the money or thing which is the consideration of the promise passes to the beneficiary, and the promisor is turned in effect into a trustee.”

It will be noticed that in the latter part of this quotation from the opinion of Judge Mestrezat he says: “In good conscience, the title to the money or thing which is the consideration of the promise passes to the beneficiary and the promisor is turned in effect into a trustee.” That is exactly what occurred in the present case. The defendant says that the money in its hands does not belong to it, but that it is perfectly willing to pay it to the sub-contractors to whom it is due. The same general principle is set forth in the case of Hindmarch v. Hoffman, 127 Pa. 284, 288, where Mr. Justice Sterrett quoted with approval Greenleaf on Evidence, as follows:

“In 2 Greenleaf on Evidence, 13th Ed., '§§ 102 and 120, the principle is thus stated: ‘Where the defendant is proven to have in his hands the money of plaintiff, which, ex sequo et bono, he ought to refund, the law conclusively presumes that he has promised to do so, and the jury are bound to find accordingly, and after verdict the promise is presumed to have been actually proved.’ ‘So if money of the plaintiff has in any other manner come to the defendant’s hands for which he would be chargeable in tort, the plaintiff may waive the tort and bring assumpsit on the common counts.’ ”

So, in the present case, in justice and equity, the balance which is left in the hands of the defendant belongs to the sub-contractors, and the defendant is not only under a moral obligation to pay whatever amount is in its hands to the sub-contractors, but in its affidavit of defense as filed it specifically agrees that it is ready and willing, if it is relieved in the present action, to pay to the sub-contractors whatever amount they may show to be due them as such sub-contractors, or divide the balance in its hands pro rata among all of the several sub-contractors.

The question of the assignment alleged to have been made by Earl E. Shaffer to the Beaver Falls Planing Mill Company, which is set out in the affidavit of defense, as we view the matter now, is not important, for it will be for the defendant to determine how much may be due the several sub-contractors, and if it gets into any difficulty in that respect, it may find it necessary to come into court in order to adjust the matter satisfactorily and with safety to itself; but with these matters we have nothing to do at the present time. We can decide simply whether the affidavit of defense filed is sufficient or not. In our opinion, the affidavit of defense as filed is sufficient.

Now, March 13,1929, the rule for judgment for want of a sufficient affidavit of defense is discharged.

From William F. Schutte, Beaver Falls, Pa.


author: Shull, P. J.,

text:
    Rinehart et al. v. Pennsylvania Power and Light Co.

      Erdman & Williams and George G. Shafer, for plaintiff.

      William G. Wilcox and F. B. Holmes, for defendant.
    Feb. 10, 1930.
   Shull, P. J.,

— This matter comes before the court on exceptions, filed by the defendant to the report of viewers.

At the argument of the case, exceptions Nos. 1, 2, 3 and 4 were withdrawn or abandoned. The remaining exceptions, viz., Nos. 5 and 6, may be considered together.

The Act of Assembly of 1923 [June 14, P. L. 700] unquestionably gives to this defendant power to condemn less than the exclusive use and occupancy of the land within the given boundaries of a designated strip or piece of land over which transmission lines are to be maintained. They not only have the right, but are by law limited in their taking of private property to such taking as may be necessary for the purpose of carrying into effect the service they are engaged in rendering to the public; this being true, we have for consideration only the question of whether or not, by resolution passed by the corporation or by a stipulation filed after the approval of the bond in condemnation proceedings, the stipulation, in fact, being filed with the viewers at their meeting to assess damages, it is done and filed in time to limit the taking to less than the exclusive use of the land described in the condemnation proceedings.

This court, in the case of Swartz v. Pennsylvania Power and Light Co., No. 26, May Term, 1926, held that the stipulation was too late; that title had passed with the approval of the bond for the land, as in the proceedings described, and that the taking was an exclusive one. Since the filing of that opinion, the Supreme Court, in the case of Philadelphia Felt Co.’s Appeal, 293 Pa. 551, has held that a resolution defining and limiting the taking under a proceeding in condemnation filed before the viewers’ report was filed was in time and might and should be considered by the viewers in assessing damages.

The case before us differs but little from the Philadelphia Felt Company’s Appeal and is governed by it, and we are frank to say that a careful consideration of that case convinces us of our error in the Swartz case. While title does pass with the filing of the bond, still, by virtue of the Act of 1923, this defendant has the right to take less than the exclusive use and occupancy of lands taken for maintaining transmission lines. In fact, they are limited in their taking to what may be reasonably necessary for carrying out that purpose for which the corporation exists, and there is no warrant under the law for taking more. Consequently, a description of the extent of the use and the taking at some stage of the proceeding is necessary, and while we feel that the proper and logical time to file such stipulation is at the very inception of the proceeding, that the owner may know what is demanded and that the court as well may be guided in passing upon the sufficiency of the bond, still, as evidence material to determining the amount of damage, anything that goes to the question of the use and occupancy by the condemning corporation is relevant at any stage of the proceeding before the viewers up to the time of the filing of their report.

As we have said, the statute clothing such corporations with the right of condemnation gives them no right to take private property in an amount or to an extent greater than is reasonably necessary to carry out the purpose or purposes for which they exist, and no stronger evidence could be offered to reduce a taking from one of absolute and exclusive use to a less use than the written declaration of the takers, filed in the condemnation proceedings, by which such party would be bound and which would leave open to the owner of the property his remedy for any greater use or taking of property at a subsequent time.

And now, Feb. 10, 1930, the 5th and 6th exceptions to the report of viewers are sustained and the report of viewers is set aside.

Prom C. C. Shull, Stroudsburg', Pa.


author: Saylor, Dep. Att’y-Gen.,

text:
    Aircraft Accidents in Insurance Policies.
    March 11, 1930.
   Saylor, Dep. Att’y-Gen.,

— We have your request for an opinion on your right to approve the use by life insurance companies doing business in the Commonwealth of a rider or provision in policies of life insurance, with or without disability and double indemnity features, exempting the companies from liability in the event of death or accident due to service or flight in various species of aircraft.

Certain life insurance companies have submitted to you for approval an application for including in their policies a rider in somewhat the following language:

“Death as a result of service, travel or flight in any species of aircraft, except as a fare-paying passenger, is a risk not assumed under this policy; but if the insured shall die as a result, directly or indirectly, of such service, travel or flight, the company will pay to the beneficiary the reserve on this policy.”

Other companies desire to use a rider not containing the exception in favor of fare-paying passengers. It is the intention of these companies, in the event of receiving your approval, to include such a rider in life insurance policies thereafter issued by them, both with and without total and permanent disability provisions, and with or without double indemnity provisions.

Section 410 of the Act of May 17, 1921, P. L. 682, prescribes uniform provisions, and section 411 lists prohibited provisions for life insurance policies. Section 618 of the act prescribes standard provisions, and section 619 prescribes optional standard provisions for policies of health and accident insurance. No part of the several sections referred to is in conflict with the provisions of the above rider. There appears to be nothing in the laws of the Commonwealth prohibiting a life or casualty insurance company from limiting the coverage of its policies in the manner contemplated by the companies requesting your approval.

Section 409 of the act, as to life insurance policies, and section 616 of the act, as to health and accident insurance policies, provide that, in the event you notify a company in writing that the form of policy submitted for your approval does not comply with the requirements of the laws of the Commonwealth, you must specify the reasons for your opinion. Your.action in this ■regard is subject to review by the court of Dauphin County. It is our opinion that were you to refuse approval of the rider in question, or of riders similar in substance thereto, you would be declining to approve policy provisions which are not in violation of the laws of the Commonwealth.

You are, therefore, advised that it is proper for you to approve the application of life insurance companies for inclusion in life insurance policies, with or without total and permanent disability and double indemnity provisions, of a rider exempting from coverage the death or injury of the insured as a result of service, travel or flight in any species of aircraft.

From C. P. Addanas, Harrisburg, Pa.


author: Finlettek, P. J.,

text:
    Miles et al. v. Abe Kolsky & Company, Inc.

      Dimner Beeber, for plaintiffs.

      William Horenstein, Albert S. C. Millar and Gilbert J. Kraus, for defendant.
    June 10, 1930.
   Finlettek, P. J.,

— A case stated, setting forth the following facts, has been submitted for our judgment:

Plaintiffs are the holders of a purchase money mortgage, securing the payment of $170,000, at the expiration of four years from April 21, 1924. The grant includes “all rents, issues and profits” of the mortgaged premises. The mortgage contains clauses requiring the payment of taxes. Taxes for 1928 are in default, and there is a default in the payment of principal.

In February, 1929, the mortgagees notified tenants of the premises that they [the mortgagees] had exercised their right to take possession of the property and demanded that rents due and those thereafter accruing be paid to the mortgagees.

On March 8, 1929, the mortgagees and the owners of the premises entered into an agreement that defendants should collect the rents, pay operating expenses of the property, and retain the balance as a trust fund to be distributed when the rights of the parties to the agreement were determined.

The agreement also provided that if the terms of the mortgage gave the plaintiffs the right to take possession of the premises and collect the rents, judgment was to be entered for the plaintiffs, otherwise for the defendant.

The plaintiffs confidently affirm that “under the authorities of the State there can be no doubt that a mortgage conveys the legal title to the premises.” If this were entirely true, there would be no difficulty, but, as a matter of fact, there are quite as emphatic declarations in our cases that a mortgagee is no more than a lien holder.

The much debated theory of the status of the mortgage under the decisions of our appellate courts was thoroughly discussed by Professor William H. Lloyd in an excellent article, entitled “The Mortgage Theory of Pennsylvania,” Vol. 73 University of Pennsylvania Law Review, page 43. All the cases upon the subject will be found in it from Tryon v. Munson, 77 Pa. 250, where Chief Justice Agnew gives the mortgagee title and right of possession, to McIntyre v. Velte, 153 Pa. 350, where he is held to be a mere lien holder, and In re Lukens, 138 Fed. Repr. 188, where it is said he has either an estate or a lien as the equities of the particular case require.

For a digest and careful discussion of these cases we refer the parties to this article. We do not wish to expand this opinion into an essay upon the subject. There are many cases in which the mortgagee is merely a lien holder. And if this is his position, the plaintiffs would have no right of entry or possession. Nor would they have any right to ejectment against the mortgagor. Yet both of those rights exist, without dispute. Even in the cases where the lien theory is adopted, the right to ejectment has not been denied. Indeed, it has been expressly admitted, accompanied by expressions of regret that it existed.

The strongest case for the estate theory is Tryon v. Munson, 77 Pa. 250, in which Mr. Justice Agnew said: “The mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made. He may, therefore, enter at pleasure, and take actual possession — use the land and reap its profits. Now, this title or lawful right to possession, and actual pedis possessio, are not ideal or contemplative merely, but real and tangible. . . . Thus we perceive an interest or estate in the land itself capable of enjoyment and enabling the mortgagee to grasp and hold it actually, and not a mere lien or potentiality.”

In Fluck v. Repogle, 13 Pa. 405, ejectment brought by an assignee of the mortgagee was sustained, Mr. Justice Rogers saying: “The mortgagee has a right to recover possession immediately on the execution of the mortgage.” Martin v. Jackson, 27 Pa. 504, and Nerpel’s Appeal, 91 Pa. 334, are to the same effect. In Britton’s Appeal, 45 Pa. 172, Mr. Justice Strong said: [Mortgages] are in form defeasible sales, and in substance grants of specific security. . . . Ejectment may be maintained by a mortgagee, or he may hold possession on the footing of ownership with all its incidents. And though it is often decided to be a security or a lien, yet so far as it is necessary to render it effective as a security, there is always a recognition of the fact that it is a transfer of the title.” In Hoskin v. Woodward, 45 Pa. 42, a levy by a mortgagee upon a fixture removed by the mortgagor was sustained.

An opinion by Sharswood, J., in Youngman v. Elmira R. R. Co., 65 Pa. 278, is to the same effect.

As late as 1912, in Erny v. Sauer, 234 Pa. 330, it was said the mortgagee “could have entered at pleasure, taken actual possession, used the land, and reaped its profits. If [the mortgagor] refused to give possession, he could have been ousted by an action of ejectment;” and Tryon v. Munson, supra, was cited as authority.

In our opinion, the true rule is stated by Mr. Justice Strong in Britton’s Appeal, supra: “Though it [the mortgage] is often decided to be a security or lien, yet, so far as it is necessary to- render it effective as a security, there is always a recognition of the fact that it is a transfer of the title.” Judge McPherson expresses the same idea in In re Lukens, 138 Fed. Repr. 188: “[It is] either an estate or alien, as the equities of the particular case may require.”

It seems to us that the rule which emerges from the apparently conflicting decisions is that, for the purpose of carrying out the intent of the parties, the mortgage will be regarded as a conveyance of the title, according or not as it will give effect to that purpose. Those who hold for the passing of title must concede that for many purposes the mortgagee is not regarded as the owner. He is not liable for taxes, nor for negligent maintenance of the property. He pays no street improvements. He is not a necessary party to a partition: Long’s Appeal, 77 Pa. 151; Lawrence v. Korn, 184 Pa. 500. The mortgage passes to the mortgagee’s executor. He is treated as a lien holder in condemnation proceedings (Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411), with a keen eye, however, to the stability of his security. A mortgagor in possession is entitled to the rents: Talbot's Appeal, 2 Walker, 67. On the other hand, the advocates of the lien theory admit (while they deplore) his right to maintain, ejectment against the mortgagor: Levinz v. Will, 1 Dall. 430; Simpson v. Ammons, 1 Binn, 175; Youngman v. Elmira R. Co., 65 Pa. 278. After default (at least) he may enter into possession of the rents. In the mind of the man in the street he is not an owner, yet the form of the conveyance is that of a fee.

It must be noticed that all of the inconsistencies or apparent defects in his title are on subjects that do not affect the security of the mortgage, but rather tend to improve it. While the considerations that tend to negative the lien theory, such as the right to ejectment and possession, have the same tendency, the deduction we draw is that neither theory is pursued in the cases to its logical conclusion if it tends to affect the primary intent of the parties to give full security to the creditor.

We think this position of the courts above stated should be borne in mind in determining the further question raised in the instant case by the defendant, who urges that while the right to ejectment is recognized as well as the right of the mortgagee to receive rentals while in possession, the mortgagor, so long as he is in possession, may receive the rents:- Talbot’s Appeal, 2 Walker, 67. In the instant case, the mortgagor is in possession (it is argued) through the possession of the tenants, under lease from him, and while the mortgagee may bring ejectment, he has not yet done so, he has not yet entered; and until, by some legal method, he obtains possession, the perception of the rents belongs to the mortgagor.

Assuming all that has been said, it is, nevertheless, true that the mortgagee has the right of entry, and when he has exercised it may collect the rents. They are expressly conveyed to him by the mortgage. If the mortgagor is personally in possession and denies admittance to the mortgagee, the latter may be obliged to resort to ejectment; but in such an action he would be entitled to mesne profits, that is, to the rents.

If, however, the land is in the physical possession of tenants under lease from the mortgagor, their possession is, originally, that of the mortgagor. At common law, before they became tenants of the grantee (mortgagee), even after grant, it was necessary that they attorn to the grantee and thereby become his tenant. But this was rendered unnecessary by the Statute of 4 Anne, ch. 16, §9, which is in force in Pennsylvania: Robert’s Digest, pages *45 and *46. See Mitchell on Real Estate in Pennsylvania, page 164, where it is said: “The effect of this is to pass to the grantee of leased lands all the rights of the grantor as landlord.” See, also, Tilford v. Fleming, 64 Pa. 300.

That is, upon conveyance by deed or mortgage, the possession of the tenants becomes that of the mortgagee. He may insist upon the resulting right to receive the rents whenever he pleases. Until he does so, the mortgagor may receive them. But as a consequence of the right of the mortgagee to enter and because they are expressly granted in the mortgage, he has the right to demand the payment of the rent to him. Indeed, it is the only way in which he can at once enforce or obtain the benefit of the express grant contained in the mortgage of the “rents, issues and profits” and the only way in which the primary intent of the parties to give full security to the mortgagee can be fully enforced.

This right to give notice to tenants and receive the rents is generally admitted. See 19 Ruling Case Law, 315, where it is said: “The mortgagee may give notice to the tenant of his right to collect the rents, and thereupon becomes entitled to them because the mortgage transfers the reversions, rents, issues and profits of the mortgaged premises.” See, also, 19 Ruling Case Law, 322, § 98; Anderson v. Robbins, 82 Me. 422; Babcock v. Kennedy, 1 Vt. 457.

Chief Justice Shaw said in Burden v. Thayer, 44 Mass. 76: “The rents and profits of the mortgaged premises constitute a part of the funds pledged for the payment of principal and interest of the debt to be secured. ... As the mortgage transfers the reversions to which the rent is incident, as it binds the whole of the realty of which the rents after accruing are a part, he (the mortgagee) may give notice of his right to the lessee and of his election to take the rents, and then the lessee becomes bound to pay the rent to him as mortgagee.”

Being of the opinion that the plaintiffs had the right to take possession of the premises and collect the rents, we direct that judgment be entered for the plaintiffs. The prothonotary will assess the damages.


author: Van Dusen, J.,

text:
    Amerling’s Estate.

      Sheldon F. Potter, for petitioner.
    April 25, 1930.
   Van Dusen, J.,

— The petitioner’s claim for compensation rests on a written agreement from all the parties in interest. Those who get absolute interests have paid him; but part of the estate is held in trust, and the trustees will not pay, and the beneficiaries (though they signed the agreement) will give no further authority to pay.

The petitioner’s remedy is against the people who promised to pay him. Claims against distributees, although they relate to the fund for distribution, are not to be presented against the fund, but are personal claims against the persons who contracted them. The petitioner, therefore, was right in his opinion at the time of the audit that he could not then present his claims, and he is not entitled to any opportunity to do so by way of review.

The petition is dismissed.