Real-Estate Title Insurance & Trust Company. The bill also prayed for general equitable relief as against the said defendant company and Hugh Wilson and Martha Ann, his wife, the said Hugh Wilson and Martha Ann, his wife, being made defendants in said bill because they are the owners of said property on which the said mortgage was secured, and because the defendant company alleged that the said Henry C. Thompson acted as the attorney and agent of the said Hugh Wilson and Martha Ann, his wife. The defendants filed separate answers, denying generally the allegations for equitable relief in the bill of complaint filed; the said defendant company averring that the said Henry C. Thompson, in having said mortgage marked "Satisfied," acted as the attorney and agent of Hugh Wilson and Martha Ann, his wife; and the said Hugh Wilson and Martha Ann, his wife, in their answer filed, averring that Henry C. Thompson acted as the solicitor of the said Real-Estate Title Insurance & Trust Company in having said mortgage marked "Satisfied," and that they dealt only with said company, and not with said Henry C. Thompson.

The facts, as shown by the report of the master, are as follows: The said Hugh Wilson and Martha Ann, his wife, were the owners of two certain lots or pieces of ground situate on the south side of Thompson street, formerly Torr avenue, in the Twenty-Fourth ward of the city of Philadelphia, and on the 8th day of November, 1879, they executed a bond and mortgage for the sum of $2,600 to the complainant, secured on said lots, which said mortgage was duly recorded, and was afterwards reduced to something over $1,000. And the said Hugh Wilson, on the 15th day of November, 1889, made application to the RealEstate Title Insurance & Trust Company for a loan of $1,100, to pay off the complainant's mortgage, reduced as aforesaid, and in said application it was written that the complainant's mortgage was to be paid off. This application was some time afterwards increased to the sum of $1,400. Five days later, on November 21, 1889, Martha Ann Wilson made application to the defendant company for a loan of $1,600 on a property on the south side of Morris street, in the city of Philadelphia, which she had agreed to purchase from one Mr. Blair for $2,600. She paid him $50 on account, leaving $950 to be paid by her in cash at time of settlement. Some delay occurring in the settlement of the Morris street property, and Mrs. Wilson desiring to move into the same, she saw Mr. J. B. Henkles, of the defendant company, and he told her that if she would pay the balance of $950 to Mr. Henry C. Thompson he would give her an order on Mr. Blair for immediate possession. Accordingly Mrs. Wilson, on Decem

ber 9, 1889, paid the $950 to Mr. Thompson, and got his receipt for the same, written on a letter head of the defendant company, where his name appeared as solicitor of the defendant company, together with the other officers. On December 24, 1889, the defendant company made settlement with Hugh Wilson and Martha Ann, his wife, on the Morris street property, and applied the money advanced by it on the Thompson street loan to the purchase money of the Morris street property, although the $950 paid to the said Henry C. Thompson was paid to him as the purchase money of the Morris street property; and the money advanced by the defendant company on the Thompson street property was thus misappropriated by it, notwithstanding it was expressly written on the Thompson street application that said loan was asked for to pay off the complainant's mortgage. On July 2, 1890, in consequence of a notice received from Mr. Thompson, James Gourley, the treasurer of the complainant, called at the title company's office, and was given 50 cents by Mr. Thompson, and directed to go satisfy the complainant's mortgage of record and return, and he would give him the money. Mr. Gourley accordingly went to the recorder's office, and entered satisfaction of the complainant's mortgage, and returned to the defendant's office, and was given the individual check of Mr. Thompson, which he did not examine, with the request that he hold the same till Saturday, which was July 5th; and Mr. Gourley, in accordance with said request, held said check until the following Saturday, when he presented the same, and there was not sufficient money to meet it.

John G. Johnson, for appellant. Gormley & Snare, for appellee.

MITCHELL, J. Thompson was the solicitor of the appellant company, and authorized to act for it in matters coming to him in that capacity. Of this Mrs. Wilson was informed, for she not only saw him at the company's office, but was referred to him by the application clerk. She had made two applications to the appellant for loans of money,-the first to be secured by mortgage on her Thompson street property, and to be used chiefly to pay off the plaintiff's mortgage; the second to be secured by mortgage on the Morris street house, and to be used as part of the purchase money for it. The appellant was not only to lend the money, but also to do the conveyancing of both operations, and its solicitor, Thompson, was the officer to whom Mrs. Wilson was referred

for that purpose. To get possession of the Morris street house, for which she was urgent, Mrs. Wilson paid the appellant $950, which were to be used in the settlement with the vendor. This was paid, by direction

of the application clerk, to Thompson, who unquestionably received it as an officer and agent of the appellant. When, however, that transaction was closed with the vendor, the appellant did not apply the $950 to it, but settled with the money it was to loan on the other application, leaving the $950 of Mrs. Wilson's money in Thompson's hands. But the money to be advanced on the other application was specifically understood to be for the payment of plaintiff's mortgage, which is marked in the application as to be paid off, and it must necessarily have been so to make appellant's mortgage safe. Thompson, who thus mixed up the two transactions, was the officer of the appellant, and did it in that capacity. Further, in the same capacity, he notified the plaintiff's treasurer to come for settlement, and directed him to take the preliminary step by entering satisfaction on the plaintiff's mortgage, whereupon he would receive the money. All this the appellant was bound to know, and, whether it knew in fact or not, it was liable, because Thompson's acts were done as its officer, and it was his position as such that gave him the opportunity. It is clear, therefore, that not only the Wilsons, but the plaintiff, had an equity against the appellant to make good to them any loss from Thompson's misapplication of that fund.

This brings us to the second branch of the case,-whether the act of Gourley, the plaintiff's treasurer, in taking Thompson's check, and, by Thompson's request, holding it for three days, was an acceptance of Thompson's individual obligation, which discharged the appellant from liability. This question is not free from difficulty. In theory the payment of the money and the satisfaction of the mortgage are dependent parts of the same transaction, and should be contemporaneous. But the court is entitled to take notice that in cases like the present of replacing an old mortgage by a new one to a different party the acts in practical business seldom are contemporaneous. The plaintiff's mortgage was the first incumbrance. Until it was actually satisfied of record, the appellant could not get a clear search, showing the priority of its own mortgage, to go among its title papers, and such requirement, if not uniform custom of Philadelphia conveyancing, is at least frequent enough to relieve compliance with it from any prima facies of being out of the ordinary course of business. The act of Gourley, therefore, in satisfying plaintiff's mortgage before the receipt of the money, was not a substitution of Thompson's personal liability for that of appellant. Nor was the acceptance of Thompson's personal check. For the purposes of this transaction Thompson was the appellant, the officer who was authorized to represent it, and the only one with whom the plaintiff had anything to do. The transaction itself was a loan of $1,400 to Mrs. Wilson, but the money was not handed to

her. The company itself took charge of the application of it,-one thousand and odd dollars to pay off the plaintiff's prior mortgage, the rest for the expenses of searches, cor veyancing, etc., and then the balance to Mrs. Wilson. Thompson was the officer of the company who handled this sum for these purposes, and when he gave Gourley half a dollar to pay for the entry of satisfaction on the mortgage Gourley was not bound to ask him if that was his own or the company's money; he was entitled to presume it was the company's, and the same presumption fairly attaches to the check for the amount of the mortgage, although in form it was the personal check of Thompson. The same view applies to the compliance with Thompson's request to hold the check until Saturday. This result might be reached summarily on the familiar ground that where one of two innocent parties must suffer by the fraud of another the one who afforded the opportunity must bear the loss. This request of Thompson's was clearly part of bis fraudulent scheme, and it was his position as appellant's officer that enabled him to carry it out. But beyond this we are of opinion, though we have not reached it without some hesitation, that the compliance with the repuest to hold the check was not so far out of the usual course of business as to amount to a discharge of appellant. Transactions of this kind usually occupy some time. There are papers to be prepared and executed, searches to be procured, interest and expenses to be calculated, and the money to be got for the balance on final settlement. This particular loan had in fact been pending since the previous December. During all that time it had been in Thompson's hands, though it was the company's matter, with which he had no personal concern, but was acting as the company's offi Gourley might fairly suppose the delay requested was on the part of the company, for reasons connected with the settlement. Such belief on his part would be a natural result of the action of the company in giving Thompson entire authority, actual or apparent, over the matter, and its admitted pendency for more than six months.

cer.

The question of jurisdiction may be briefly disposed of. The bill was for the cancellation of the entry of satisfaction on complainant's mortgage, and its reinstatement as a prior lien to appellant's mortgage, on the ground that the entry had been procured by the fraud of appellant's agent; and, although an action of assumpsit might have been brought on the agent's promise, or for money had and received for plaintiff's use, yet relief in a clear subject of equity jurisdiction is not barred by the existence of a remedy at law, even if, in view of the triangular nature of the contest here, between the rights of the plaintiff, the appellant, and Mrs. Wilson, that remedy could be considered adequate.

We have not thought it necessary to notice in detail the numerous assignments of error, even as reduced and classified in appellant's argument. We have considered the case on the facts found by the master, because careful perusal of the evidence has failed to satisfy us that those found are not correct, or that those omitted in the findings would change the result. The case is one of hardship in any aspect, for it involves loss through the fraud of a person trusted by all parties; but the general conclusion is unavoidable that Thompson was the agent of appellant, with actual authority as to a large part of the transactions, and with such apparent authority throughout as to make it answerable for his action. Decree affirmed.

MASTER AND SERVANT-DEFECTIVE APPLIANCES SCOPE OF EMPLOYMENT-INSTRUCTIONS. 1. Where the negligence charged is the continuance in use of a defective appliance, and two witnesses have testified that such continuance was dangerous, and should not have been done by a prudent man, the court cannot take this evidence of the cause of the accident from the jury, though there be room to doubt the weight of the expert testimony, and the fair probability that 'the defect caused the accident.

2. There was evidence that deceased lived a mile away from the works; that he often came early, and used his time in oiling and getting ready his machine. He was killed by a boiler explosion from 10 to 25 minutes before working hours. Held, that the court, having charged that the employer owed no duty to one that came at an unreasonable hour and sat around, was right in leaving the jury to decide whether deceased was killed in the line of his duty.

3. Deceased's post of work was in an open shed behind the engine house, and he had just entered the latter, a little before working hours, when the boiler exploded. There was evidence that he kept in the engine house the oil and whetstone with which he used to sharpen his tool before beginning work. Held, that the court might properly allow the jury to infer that he was going to get the oil and whetstone, and so was reasonably within the scope of his employment.

4. Where points submitted, though reasonably correct statements of the law, might mislead the jury unless amplified and explained, the court, having already stated the law correctly, commits no error in refusing them.

5. Where the court affirms a point as a matter of law, but adds that he knows no evidence in the case that would warrant the facts stated in it, a failure to point out such evidence waives objection.

Appeal from court of common pleas, Berks -county; J. N. Ermentrout, Judge.

Trespass by Martha Walbert against Edwin H. Trexler and Oscar Trexler, trading as the Trexler Cooperage Company. The action was for damages sustained by plaintiff by the death of her husband from a boiler explosion in defendants' factory, where he was employed, and plaintiff alleged that defendants had been negligent în continuing to use v.27A.no.1-5

a leaky boiler after notice of its condition. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

Philip S. Zieber and Baer & Snyder, for appellants. Howard P. Wanner and Ermentrout & Ruhl, for appellee.

MITCHELL, J. The general principles of law governing the case were clearly and correctly given to the jury, who were told that negligence, and not danger, was the foundation of the liability of defendants; that the plaintiff must prove negligence, and that it was the cause of the injury, and that the injury was received while Walbert was in the line of his duty as an employe of defendants. The appellants' substantial complaint is that the judge did not take the questions from the jury and decide them as matter of law. He could not safely have done so on either point. The negligence alleged was in continuing to use a leaky boiler. At least two witnesses testified that this was a source of danger, and should not have been done by a prudent Whether either of these witnesses was really a scientific expert, whether their reasons for considering the use of the boiler imprudent were consistent with each other, and whether either really showed that the explosion was in fair probability caused by the leak, are matters on which we may entertain doubts, but they were questions of fact for the determination of the jury. In the face of this positive testimony, the court could not have assumed that the injury did not result from the alleged cause.

man.

In regard to the other point, what Walbert was doing at the instant he met his death, there were several matters necessary to be considered and settled by the jury-First, the element of time; and, secondly, of place. It was admitted on both sides that the hours of work began at 6:30 A. M. The time of the accident was variously testified to from 6:06 to 6:20. While the appellant's contention that the employer's liability does not begin until the employe's service has actually begun is in general entirely sound, yet the rule cannot be held absolutely to the stroke of the clock. The deceased lived a mile away from the works. In strict law, he was bound to be there when the whistle blew, and he was entitled to a reasonable margin in arriving, so as not to be late. There was testimony that he was in the habit of using his time under such circumstances in oiling and getting ready the machine on which he worked. Whether this was work with which he might occupy his employer's time does not appear, but, even if it was, the coming a little early, and getting to work a short time before he was actually required to, is not usually regarded as a fault in a workman which should deprive him of compensation when injured. The learned judge told the jury that the employer owed no duty to one who came at an unreasonable hour, and if Walbert came an hour or two before his time, and sat around

with other people, he was not in the line of his duty; but declined to say as matter of law that such was the case here, and left that fact, under all the evidence, to the jury. In this he was right. Then, as to place, it appeared that Walbert's post was in a shed not part of the boiler house, where the explosion took place, and that he had just entered the door of the house when he was injured; but there was also evidence that he was in the habit of sharpening the knife with which he worked, as a preliminary to the occupation of the day, and that the oil and whetstone used for this purpose were kept in the engine house, the usual entrance to which before the opening of the works in the morning was through the doorway in which he was injured. There was evidence from which the jury were at liberty to infer that he was at that place at that time to get the oil and whetstone, and, if so, that he was reasonably within the scope of his employment.

What has been said disposes of the 4th, 5th, and 7th assignments of error. The points in the 1st, 2d, and 3d assignments are substantially correct statements of the law, and might have been affirmed; but they are so expressed that the jury might have been misled in their application to the case, unless they were somewhat amplified and explained. This the learned judge was under no obligation to do. Having once correctly stated the law, he was not bound to reiterate it in the words chosen by counsel, (Com. v. McManus, 143 Pa. St. 64, 21 Atl. Rep. 1018, and 22 Atl. Rep. 761;) and he was careful to negative the points without reading them to the jury, so that no confusion could have arisen in their minds between the law given to them affirmatively in the charge and that which, though apparently the same, was refused.

The point in the sixth assignment was affirmed as matter of law, but the judge added that he knew of no evidence that would warrant the facts stated in it. No such evidence was pointed out to the court below or to us. What has been said here in the argument is an inference only. The court was not bound to submit that to the jury. Judgment affirmed.

CITY OF SCRANTON v. JERMYN. (Supreme Court of Pennsylvania. July 19, 1893.)

MUNICIPAL CORPORATIONS-ASSESSMENTS-VA

LIDITY.

1. Under Act May 23, 1889, art. 15, § 26, providing that, where paving has been petitioned for, the passage by councils of any ordinance directing the paving shall be held to be conclusive of the fact that the necessary majority of owners have petitioned for it, an affidavit of defense, in an action against a property owner for the cost of paving, alleging that the petition was not signed by a majority of the property owners, is insufficient.

2. Under Act May 23, 1889, art. 15, § 22, providing that municipal claims against prop

erty owners for improvements "shall be prima facie evidence of all matters therein set forth,' an affidavit of defense, in an action against a property owner for the cost of paving, alleging that the petition was not signed by the neces sary majority of property owners, is insufficient, where the claim on which the action is based recites that the ordinance requiring the paving to be done was passed upon petition of a majority of the property owners affected.

3. Where, in an action against a property owner to recover a municipal claim for improvements, the affidavit of defense alleges that plaintiff city had no interest in the action, as it had limited its liability with the contractor to the amount of claims recovered, an objection that the contract was void, in that it was' awarded by resolution, instead of by ordinance, will not be sustained.

Appeal from court of common pleas, Lackawanna county.

Action by the city of Scranton against John Jermyn to recover a municipal claim for paving. From a judgment for plaintiff, defendant appeals. Affirmed.

H. M. Hannah, for appellant. I. H. Burns, City Sol., and F. L. Hitchcock, for appellee.

*

MITCHELL, J. Under the act of 23d May, 1889, for the incorporation and government of cities of the third class, (article 5, § 3, cl. 10; P. L. p. 288,) the councils are authorized to direct by ordinance the paving of streets, etc.; but, if the cost is to be paid by the abutting property owners, certain conditions are attached to the manner of exercising the municipal authority, one of which is that the paving, etc., shall be petitioned for by a majority of the owners, or the owners of a majority of the feet front on the street. And by article 15, § 26, of the same act, (P. L. p. 325,) where the paving has been petitioned for, "the passage by councils of any ordinance directing the paving * shall be held to be conclusive of the fact" that the necessary majority of owners have petitioned for it. Under these provisions of the statute, the only defense upon this point, open to a property holder, against a municipal claim for paving, is that there was no petition. The affidavit of appellant does not set up any such defense. On the contrary, it expressly avers that there was a petition, but it was not signed by a majority. That fact was not open to dispute. The argument of appellant on this branch of the case is really an argument against the policy of such a provision. With that we have nothing to do. The language of the act is perfectly plain, and can have but one interpretation. No authority, therefore, is necessary; but, if it were, the cases of Erie v. Bootz, 72 Pa. St. 196, and Olds v. Erie, 79 Pa. St. 380, would be ample, for the language there held to shut out the question was much less certain and mandatory than here.

But, it is argued, the act also provides that no such ordinance shall be passed until five days' notice shall be given by advertisement; that this is a question of fact, which cannot be assumed on a motion for judgment; and

that the provision of article 15, § 22, (P. L. p. 324,) that claims "shall be prima facie evidence of the amount thereof, and of the same being due and owing, and of all matters therein set forth," cannot be extended to cover matters of this kind, concerning the manner in which an ordinance has been passed. The claim which is filed as part of plaintiff's statement of its cause of action recites the fact that the ordinance was passed upon petition of a majority in numbers of owners, which petition was duly advertised as required by law. Of course, even under this provision, the claim is only evidence of such averments in it as are relevant and proper to be included; but this is such an averment, for it is directly relevant and material to the validity of the ordinance on which the claim itself rests. The appellant's argument on the whole of this branch of the case overlooks the vital fact that claims for paving and other municipal improvements are a species of taxation, and the property owner has only such rights of contest and defense as the legislature chooses to allow him. Councils might have been authorized to order the street paved at his expense without his consent, or even without notice to him. In many cases they are so authorized by law. Such defenses as the legislature deemed necessary for the protection of his individual rights are left open to him, but a large measure of discretion is, and must of necessity be, lodged finally in the municipal body, and just how large that measure shall be is matter entirely for legislative determination. As already said, councils, under some circumstances, have authority to decide without reference to the individual at all; in others, as in the present case, the improvement must be initiated by a majority of the property holders, but in such case the dissenting individual or minority has no cause of complaint. The power to decide is given to the majority, and their action is binding on the others, willing or unwilling. And the law, to some extent, regulates, not only what defenses may be made, but when and how. The question whether a majority of the property owners have signed a petition is a question of fact, not always perfectly simple, or easy of ascertainment. Lines may be uncertain or undetermined; titles may be in dispute; lots may be in course of transfer; and the owner to-day, when one petitioner signs, may not be owner to-morrow, when the petition is presented. If these matters are open to dispute in each individual case, then one jury may find a lien invalid against one property, and another jury, the same day, find another lien, under the same ordinance, valid against the next-door property. The legislature, wisely, as it seems to us, has provided that councils shall determine this fact finally before the work is begun, and the passage of the ordinance shall close the question for all parties. For the same rea

sons, to a lesser extent, the law also provides that the claim itself shall be prima facie evidence of the facts therein set forth. This is but a statutory application to this class of public work of the maxim that all things shall be presumed to have been done rightly, and is little, if any, harder on the defendant than taking a plaintiff's statement to be prima facie true, and giving him judgment on it unless the defendant makes a denial by affidavit. In all this there is nothing new or startling, or subversive of constitutional rights. It is a common and longestablished method of procedure, and as such was approved by our Brother Williams in City of Scranton v. Whyte, (Pa. Sup.) 23 Atl. Rep. 1043.

The averment in paragraph 2 of the affidavit that the city of Scranton has no interest in the action-its contract with the use plaintiff, the paving company, limiting its liability to the amount of the claims recovered against the property owners-is irrelevant and immaterial, but it takes all the force out of the objections raised by paragraphs 4 and 5 against the ordinance and the resolution awarding the contract to the use plaintiff. As no liability was imposed by the contract on the city, no provision for indebtedness was necessary, and the contract could as well be awarded by resolution as by ordinance. Judgment affirmed.

CITY OF SCRANTON v. THROOP. SAME V. BLAIR. SAME V. CHITTENDEN. SAME v. DECKER. SAME v. FISHER. SAME V. GILMORE. SAME v. HILL. SAME V. HULBERT. SAME V. JERMYN. SAME V. LA BAR. SAME V. SHEPARD. SAME V. HAND. SAME v. RICE.

(Supreme Court of Pennsylvania. July 19, 1893.)

Appeal from court of common pleas, Lackawanna county.

Actions by the city of Scranton against one Throop and others to recover on paving claims. From a judgment for plaintiff, defendants appeal. Affirmed.

H. M. Hannah, for appellants. I. H. Burns, City Sol., and F. L. Hitchcock, for appellee.

MITCHELL, J. For the reasons expressed in City of Scranton v. Jermyn, 27 Atl. Rep. 66, (opinion filed herewith,) these judgments are affirmed.

SLOANE et al. v. SHIFFER et al. (Supreme Court of Pennsylvania. July 19, 1893.)

SALE-RESCISSION FOR FRAUD-TENDER.

1. A sale effected through the false and fraudulent representations of the vendee may be rescinded by the vendor without the return of part payments made by the vendee, where it appears that the vendee, from the goods purchased, had sold more than enough to reimburse him for the payments made.