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that the labor for

, employed by the

of the United States. The statement does not of June 25, 1895 (P. L. 269), and of the ordiset forth these facts. Deponent is informed, nance of December 16, 1896, and of the terms so believes, and here avers that none of the of the contract. parties mentioned in the said statement as The ordinance of March 30, 1896, provides performing the labor sued for was such a that all persons entering into contracts with citizen as required by the said act of assem the city for the construction or repair of bly. Deponent further avers that the said public works shall give, in addition to the defendant and surety, the Union Surety & usual bond for the faithful performance of Guaranty Company, upon receipt of notice the work, another bond with the condition of the claims in suit, called upon and de that they shall pay all persons supplying manded of the plaintiff that the money it them with labor or materials; and it authorthen had on hand, and which was due the izes such persons to bring suit in the name said McLinden, be applied to the payment of of the city for their benefit against a desaid claims, or should be paid to the said faulting contractor and his surety. The powsurety company that the same might be so er of the city to exact the additional bond applied if required by law; and that the was upheld in Philadelphia v. Stewart, 195 plaintiff declined said request, and paid said Pa. 309, 45 Atl. 1093, in which it was demoney to said McLinden, although it had on cided that the condition was not ultra vires hand sufficient to pay said claims in suit." In and contrary to public policy, as it was the a supplementary affidavit of defense the right of the city to protect itself against the Union Surety & Guaranty Company aver risk of defective materials and workmanship red: “Deponent is informed, and so believes, in the construction of its public works, that the use plaintiffs named in the plaintiff's against which there is no right of lien, by statement of his cause of action were gen exacting assurance from the contractor that eral employés and laborers employed by said he will pay the debts which he incurs. It is James McLinden, and your deponent is in now argued in support of the defendant's formed, so believes, and here avers that none first contention that, as the purpose of the of the said parties mentioned in said state ordinance and 'bond is to give to those supment as performing the labor sued for was a plying materials and labor the same proteccitizen of the United States, as required by tion they would have if the supply had been the ordinance of councils as of December 16, to a private party, the construction which 1896, a copy of which is hereto attached and precludes a mechanic or laborer from mainmade part of this affidavit.”

taining a mechanic's lien should be adopted, Argued before MITCHELL, DEAN, FELL, and that it should be held tbat one who perBROWN, MESTREZAT, and POTTER, JJ. forms labor is not within the intent of the

ordinance or of the bond given to carry out Alex. Simpson, Jr., and David J. Myers,

its provisions. This contention cannot be Jr., for appellants. Eugene Raymond, for ap

sustained. The mun pal policy was to propellee.

tect the city by securing the claims of those

who furnished materials or labor, and the FELL, J. This action is by the city of language of the bond to pay those who perPhiladelphia, to the use of a number of per formed labor is too clear to admit of doubt. sons who were employed as day laborers The notice not to pay the contractor would in grading streets. It is founded on two have exonerated the surety if the payment bonds (included in the same action by agree was one which the city ought to have withment of the parties) given to the city by the held; but it was not. The city was under no contractor and his surety to secure the obligation to pay the claimants, nor to see prompt payment of all amounts due “for la that they were paid. They had no claim upbor and materials furnished and supplied or on the fund in its possession which could be performed in and about the work." The enforced, and the city could not retain the work was done in accordance with the con money in order that the creditors of the contract, and the contractor was paid in full by tractor or his surety could reach it by any the city. The surety notified the city, at process. Lesley v. Kite, 192 Pa. 268, 43 time when the amount due the contractor Atl. 959. The city had no direct financial inexceeded the amount of the claims for labor, terest in the bond, for, although it was a not to pay the balance due him until he had nominal plaintiff, it was merely a trustee paid the claimants. This notice was disre for those who might become beneficially ingarded by the city. Three grounds of de terested. Philadelphia v. Stewart, 201 Pa. fense were presented by the affidavit filed by 526, 51 Atl, 348. It is equally clear that the the surety: (1) That the use plaintiffs, be surety cannot set up the violation of the law ing day laborers, were not entitled to the and of the contract forbidding the employprotection of the bond; (2) that the surety ment of alien labor by its principal as a dewas released because of the payment to the fense in an action on the bond. contractor by the city after notice; (3) that Tue judgment is affirmed.

(205 Pa. 168)

this question to the jury. In nearly all cases MILLER v. CURE et al.

where there is a dispute, the identity of a (Supreme Court of Pennsylvania. March 9,

monument on the ground with that in the 1903.)

deed, contract, or survey is a question for

the jury; but there are exceptions. Where EJECTMENT-INSTRUCTIONS-BOUNDARIES -PROVINCE OF COURT AND JURY.

the existence of a natural or artificial object 1. Where, in an action to determine the bound

on the ground is undoubtedly proven or adaries of land, the existence of a natural object mitted, the court may say to the jury that it is clearly proven, an instruction that it corre corresponds to the description in the writing, sponds to the description in the writing, and and they should so find. Where there is that the jury should so find, is properly given. 2. A deed called, as one of the boundaries of

doubt as to its identity, or conflicting evithe land reserved, for an "outcrop of the con dence, it is clearly a question of fact for the glomerate rock.' There was a conspicuous jury. Here the writing called for the outcrop ledge of such rock, over 1,000 feet in length, which closed the boundaries of the reservation.

of the conglomerate rock. The fifty-foot Held not error to instruct that this ledge was ledge, obviously, was the real outcrop of that the boundary called for, though there was a rock. It was plainly in sight when Hartwell, small, inconspicuous ledge of the same rock, about 200 feet long, which did not close up the

the grantor, and Miller, the grantee, were deboundary, and which was a spur from the large termining the boundary to be written in the ledge.

contract. Hartwell testified that was the Appeal from Court of Common Pleas, Lack

only outcrop he saw, and the one he tried to

insert in the contract. awanna County, Newcomb, Judge.

It was about 1,300 Action by W. G. Miller against John Cure

feet in length, and closed the boundaries of and George W. Cramer. From an order re

the reservation. While there was evidence fusing to take off a nonsuit, plaintiff ap

of the small ledge, and that its composition peals. Affirmed.

was, geologically, conglomerate rock, it was Argued before DEAN, FELL, BROWN,

inconspicuous, and a mere spur from the MESTREZAT, and POTTER, JJ.

large ledge, which was the real outcrop of

the conglomerate. Besides, it was only about A. A. Vosburg, S. B. Price, and C. W. Daw

200 feet long, and did not reach to close up son, for appellant. W. S. Diehl, for appel

the boundary to either the Stewart or Sherlees.

rard lots. We think the court was right in

holding that, on the undisputed evidence, the PER CURIAM. This was an ejectment for

description in the contract could be applied about 13 acres of land in the borough of

only with certainty to the large ledge, and Blakely, Lackawanna county. Both parties could not, except on merest conjecture, be apclaimed under one Hartwell, who on Decem- plied to the small one, and therefore properber 19, 1882, conveyed by written agreement ly directed a nonsuit. to plaintiff a tract of 110 acres, but excepting

The judgment is affirmed. and reserving thereout all that portion on the east corner bounded on two sides by the (akley and Sherrard lands, and then follows

(205 Pa. 159) this language: "And on the remaining sides by the outcrop of the conglomerate rock."

LUTZ et al. v. ROYAL INS. CO. OF LIVERAfterwards this piece reserved was, on June

POOL. 2, 1888, conveyed by almost exactly the same (Supreme Court of Pennsylvania. Feb. 23, description to defendants. When Hartwell

1903.) conveyed to Miller, they went upon the land FIRE INSURANCE-ACTION ON POLICY and viewed its boundaries. There was a

DEFENSES. ledge about 50 feet high, of what was undis 1. In an action on an insurance policy cov. putedly the conglomerate rock, extending for

ering photographic supplies there was evidence 1,300 feet, almost up to the Oakley lot. Sev

of a provision that the policy should be void if

there was kept on the premises gunpowder or eral rods east of this there was another small other explosives. It was customary for dealers ledge, apparently a spur from the larger in photographic supplies to sell small packages ledge, but it only extended about 200 feet,

of fashlight powder, but not to manufacture it

on the premises. It appeared that the firm and did not nearly reach the Oakley and

manufactured it in a portion of the building Sherrard land. The identity of the boundary which they occupied, without the knowledge of rock in the contract with that on the ground

the insurance company. Held, that a binding gave rise to the dispute. If the boundary

instruction for defendant should have been

given. meant in the writing was the large ledge, the reservation contained about 18 acres; if Appeal from Court of Common Pleas, Philthe small ledge, only 442.

adelphia County; Wiltbank, Judge. The court decided that the large ledge Action by Francis A. R. Lutz and others was meant by the description, which, of against the Royal Insurance Company of course, gave the verdict to defendants. It Liverpool. Judgment for plaintiffs. Defendis argued that the court erred in not leaving ant appeals. Reversed.

Argued before MITCHELL, DEAN, 2. See Boundaries, vol. 8, Centr Dig. 88 42, 43. BROWN, MESTREZAT, and POTTER, JJ.

54 A.-46

Henry P. Brown and Thomas W. Barlow, Although the learned judge of the court for appellant. S. Edwin Megargee and E. below left it as a question of fact for the jury Hunn Hanson, for appellees.

to find whether the McCollin Company was at

the time manufacturing the flashlight pow. DEAN, J. The policy issued by defend der, the evidence that it was was practically ant to plaintiffs on which this suit was undisputed, and he says "it would seem that brought is dated January 4, 1900, and indem- there could be no question" about it. He nifies plaintiffs in sum of $6,000 for one year really might very properly have instructed against loss by fire on building No. 123 South them that the fact was established. So we Eleventh street, in Philadelphia. It was a shall treat it as a fact, the same as if found renewal of a one-year policy on same build by the jury. The court's reference to its ing issued January 4, 1899. After the first general charge on the subject embraced in policy was issued, in July, 1899, plaintiffs the second point is thus stated: “If you find let three of the floors to the Thomas H. Mc that the ordinary conduct of the business in Collin Company, a company engaged in the which the Thomas H. McCollin Company business of dealing in photographic supplies, was engaged at the time the risk was acceptand that company continued as tenants downed by the insurance company involved the to March 22, 1900, at which date there was manufacture of flashlight powder, and if, on an explosion, immediately followed by a fire, the first point, under my instructions, you which destroyed the building. Charles War find in favor of the plaintiff, then your verren, who was an employé of the McCollin dict should be for the plaintiff. If the ordiCompany, and mixed explosives for that com nary course of the business, however, was pany, was on the fifth floor, at work, at the that it involved dealing in flashlight powder, time of the explosion, and was killed. Among and did not involve its manufacture, then I other articles used in the photograph business instruct you that an explosive was kept, used, and sold by the company was a flashlight or allowed on the premises, contrary to the powder called "Blitz Pulver," a high explo provisions of the policy, and that in such case sive. The company not only dealt in and your verdict should be for the defendant." sold this powder, but also manufactured it This, although not a peremptory negative or on the floor occupied by it. For the greater affirmative, is a very clear answer, fully repart, the policy was on the usual printed sponsive to the points. There was a verdict form of the company, and among other print for plaintiffs, and defendant appeals, and ed conditions is the following: “This entire complains of the answers to the two points as policy, unless otherwise provided by agree ment indorsed hereon or added hereto, shall Counsel for appellees here rely on Citizens' be void

* if (any usage or custom of Ins. Co. v. McLaughlin, 53 Pa. 485, and Lan. trade to the contrary notwithstanding) there caster Silver Plate Co. v. Fire Ins. Co., 170 be kept, used or allowed on the above de Pa. 151, 32 Atl. 613, for the law vindicating scribed premises *

gunpowder ex this instruction. We think there is a clear ceeding 25 pounds in quantity, naphtha, ni distinction in the facts between those cases troglycerine or other explosives,” etc. In ad and this. In both cases cited-one a leather dition to this printed condition, there was the factory, the other a silver-plate factory-the typewritten provision: "Privilege to be oc prohibited articles, benzole and gasoline, cupied as at present or for purposes not more were in constant use in the manufacture of hazardous.” It was customary for dealers the product of the factories, and absolutely in photographic supplies in Philadelphia to necessary in small quantities to carrying on put up and sell in small packages the flash- the business. We held that, if the use was a light powder called “Blitz Pulver.” It was necessary one in carrying on the business, it not customary for dealers to manufacture it must be presumed that the intent of the paron the premises where sold.

ties was to insure the subject of the contract The insurance company refused to pay the as it then existed, and as it would continue loss, on the ground that the conditions quot to be during the life of the policy, notwithed had been violated, and thereupon this suit standing the printed condition. In this case, was brought. At the trial but few other ma as the learned judge said to the jury, there terial facts appeared than those already stat- 'was no "direct evidence" that the insurance ed. The defendant requested the court to company knew that the McCollin Company charge the jury in its second and third writ was manufacturing its own flashlight powten points as follows: "If the jury believe der on the premises when the policy was isthat an explosive was manufactured on the sued. Under the evidence it might fairly be premises in question at the time of the ex presumed that the photograph supply complosion, this was contrary to the contract pany dealt in that article, and kept it in of insurance, and avoided the policy, and small quantities for sale on the premises. there can he no recovery thereon. Answer. But, as there is no presumption from the naFor answer to that point I refer you to my ture of the business and the subject of the general charge.” “Under all the evidence in contract that the insurance company knew the case the verdict of the jury must be for it was also manufactured on the premises, defendant. Answer. That point I refuse." the burden was on plaintiffs to establish by

error.

SALES

satisfactory evidence that the company ac

(97 Me. 289) tually did know. It might be presumed to

STATE V. EATON. know the ordinary methods and customs of

(Supreme Judicial Court of Maine. Feb. 5, such dealers and just here comes in the

1903.) question, what was the custom? Not one

INTOXICATING LIQUORS - ILLEGAL dealer or manufacturer-and a number were KNOWLEDGE AND BELIEF-INTENT. called-testified that it was a necessary or 1. If a person, other than those having stat. usual part of the business of a dealer in utory authorization, sells liquors which are in photographic supplies to manufacture flash

fact intoxicating, but which he believes and

has good reason to believe are not intoxicatpowder on the premises where sold. On the

ing, he nevertheless violates the statute procontrary, the evidence was that it was nei- hibiting the sale of intoxicating liquors, and is ther usual nor necessary, the custom of deal subject to the statutory punishment therefor.

The prohibition is not limited to knowingly ers being to buy it of manufacturers, whose

selling without authority. It is absolute, withfactories were generally located in the sub out exception. urbs of the city, in small quantities, then (Official.) put up and sell it in small half-ounce pack

Exceptions from Supreme Judicial Court, ages. Not a single witness except McCollin

Franklin County. testified it was customary for the dealer to

Clarence Eaton was convicted of a sale manufacture the powder, and the substance

of intoxicating liquors, and excepts. Excepof his testimony is that it was his custom

tions overruled. to do it. The testimony wholly failed to show such custom, hence there could be

The defendant, after conviction, was alinference that the insurance company knew

lowed a bill of exceptions as follows: of a custom which did not exist. Nor is

There was evidence tending to show that there any evidence, direct or indirect, that it

on July 3, 1902, the respondent put up a knew as a fact at the date of the contract

case of beer of some kind, and sent it to one that the McCollin Company manufactured Augustus H. Bradford; also that Bradford the powder upon the premises.

delivered a bottle of the same to his son, Was, then, the building at the date of the

who delivered the same to one Nelson Gould, explosion and fire occupied "for a purpose

who delivered the same to Prof. W. G. Mal. more hazardous” than at the date of the pol- lett, who claimed to analyze the same, and icy? As before noticed from the subject

found it contained 5.44 per cent. alcohol. of the contract, it would be fairly presumed Respondent testified that the beer he sent that the insurance company knew, or ought

to Bradford was what is known in the marto have known, that a dealer in photograph

ket as “Uno Beer," that it was not intoxic supplies kept on the premises and sold

icating, and that if Mallett made a correct small quantities of flashlight powder, but

analysis of a bottle of beer which contained there is no presumption, and no evidence,

5.14 per cent. alcohol, which came from that that the insured knew he manufactured it

case, there must have been some mistake in there. Then, did the use of the premises for

putting up the beer; that he did not intend manufacture increase the hazard, within the

to sell anything but Uno beer, which is not typewritten condition of the policy? Flash

intoxicating. light powder is composed of quite a number

On this point the presiding justice instructof chemical materials, which, when com

ed the jury as follows: pounded in certain proportions, it is testified

"It is unnecessary, I presume, to instruct by chemists, become a high explosive. It

you, but I will do so, that if there was any scarcely needed further proof that the bring- misapprehension or error on the part of the ing together in one room of a number of

defendant or any of his agents in delivering materials which separately were compara

a strong beer, a beer unadulterated, when tively harmless, yet together made a high ex

he intended to deliver an adulterated beer,

that would not relieve him from the replosive, greatly increased the peril of fire from explosion, though further evidence on

sponsibility of selling liquor which was in. that point by manufacturers and others was

toxicating, if you find it to be intoxicating

in fact." given. One manufacturer (Buchanan) testified that he had stopped manufacturing it

Argued before WISWELL, C. J., and EMaltogether because there were too many

ERY, STROUT, SAVAGE, and SPEAR, JJ. coroner's juries to keep it up in his estab H. S. Wing, Co. Atty., for the State. H. lishment. There was other testimony to the L. Whitcomb, for defendant. same effect, and there was none to the contrary. The case was well and carefully tried EMERY, J. The defendant was convicted on the theory adopted by the learned judge of selling intoxicating liquor without any of the court, but, in our view, there was not lawful license or authority therefor. He sufficient evidence to support it. The de- claimed that he did not know the liquor fendant's second and third points should (beer) was intoxicating, had good reason to have been affirmed without qualification. believe it was not intoxicating, and did not

The judgment is therefore reversed, and intend to sell anything intoxicating. The judgment entered for defendant.

presiding justice ruled that this claim, if

The pro

established, was no defense. The defendant In addition to his bill of exceptions, the excepted.

defendant also filed and argued a general The question presented is practically this: motion for a new trial. Is a person permitted by the statute to sell Argued before WISWELL, C. J., and EMwithout license intoxicating liquor if he be ERY, WHITEHOUSE STROUT, and SAVlieves, and has reason to believe, that it is AGE, JJ. not intoxicating? Certainly not.

L. A. Burleigh and Joseph Williamson, Jr., hibition is not limited to knowingly selling

for plaintiff. G. W. Heselton, for defendant. without license. It is absolute, without exception. While many statutes make knowl

EMERY, J. This was an action against edge or wicked intent, or both, essential to

an administrator representing the deceased constitute the offense forbidden, the statute

partners of the late firm of Dingley Bros. forbidding the sale of intoxicating liquor

One of the issues was whether certain indoes not. It is like those statutes considered

dorsements or entries in the handwriting of in State v. Goodenow, 65 Me. 30, and State

the plaintiff upon the back of a $3,000 note v. Huff, 89 Me. 521, 36 Atl. 1000, where the

given to him by the Dingley Bros. were made act was held to constitute the offense, though accidentally and erroneously. The plaintiff the defendants did not think they were vio

claimed they were, and that he had written lating the statute.

and personally delivered to the Dingley Bros. A person proposing to sell liquor must

in their lifetime a letter stating that the make sure, at his peril, that it is not intox

indorsements or entries were erroneous, and icating. If it be in fact intoxicating, his er explaining how they happened to be made, roneous belief that it is not intoxicating,

and that they orally assented to the statehowever sincere and apparently well found

ment and explanation as correct and satised, will not save him from punishment. It factory. A copy of this letter was admitted has been repeatedly so held in Massachusetts

in evidence, the original not being produced under similar statutes. Com. v. Boynton, 2

in response to due notice to do so. Allen, 160; Com. v. Hallett, 103 Mass. 452;

At the top of this copy of letter was the Com. v. O'Kean, 152 Mass. 584, 26 N.. E.

following memorandum, signed by R. W. 97.

Rich, a son of the plaintiff, viz.: Exceptions overruled. Judgment for the

"The original letter from Abraham Rich to state.

Dingley Brothers of this date of April 18th,

1895, of which this is a true copy, was hand(97 Me. 293)

ed by Abraham Rich to Fuller Dingley of

Dingley Brothers in their (Dingley Brothers) RICH V. HAYES.

office in Gardiner, Maine, in my presence at (Supreme Judicial Court of Maine. Feb. 5,

about three o'clock p. m., of this 'afternoon' 1903.)

of April 18th, 1895. Fuller Dingley read the EVIDENCE-ADMISSIBILITY – PRIVATE MEMORANDA-PRACTICE-JURIES–NEW TRIAL.

letter and said, 'Your explanation in this 1. A written statement of a third party con

letter of your erroneous entries on taining material evidence against one of the $3000.00 note is satisfactory to and agreed parties to a suit is not admissible in evidence.

to by us, Captain.' 2. If such a written statement, though not admitted in evidence, is allowed at the close of

“Attest: R. W. Rich." the trial to be taken by the jury to their room The plaintiff was known as “Captain with other papers, it is prejudicial error, and a Rich." It does not appear that this mem. new trial will be granted. 3. That such written statement is upon the

orandum was read or offered in evidence, or same paper as a statement which is admissible, used at the trial by any witness to refresh and was formally admitted in evidence, and

his memory. which may properly be allowed to be taken to

Wben, at the close of the trial, the vathe jury room, it must nevertheless be withheld from the jury, either by separation, or

rious documentary exhibits admitted in evicomplete obliteration, or in some other effectual dence were about to be passed to the jury to mode.

take to their room for use in their delibera(Official.)

tions, the defendant objected to the above Exceptions from Supreme Judicial Court, memorandum, signed by R. W. Rich, going Kennebec County.

to the jury with the copy of the letter, but, Action by Abraham Rich against Alvah R. the plaintiff insisting, it was allowed to be Hayes. Verdict for plaintiff, and defendant taken by the jury to their room with the excepts. Exceptions sustained.

copy of the letter. The defendant excepted. Action of assumpsit on a promissory note.

The written memorandum was merely a Besides the count on the note, there was a

private one, not even made in the course of

business. It contained a statement of mamoney count, with a specification making

terial and damaging admissions of the dereference to the note. The plea was the general issue, with a

fendant's intestate, yet it was allowed to go brief statement of special matter of defense,

to the jury not only as evidence, but as docuupon which, however, the decision in no way

mentary evidence, with practically more

probative force than the oral testimony of turned.

R. W. Rich to the same admissions would (1. See Evidence, vol. 20, Cent. Dig. $ 193.

have had. It sbould need no argument to

our

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