* *

Lyon vs. Mouck.

and located, and the description must be sufficiently definite within itself and not require the aid of parol testimony or be left to the future action of the same or other parties. * The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy." Safe Deposit & Trust Company vs. Diamond Coal & Coke Company, 234 Pa., 100. There is no description of any kind contained in this contract, much less a description sufficiently definite in itself by which the land can be identified and located without the aid of parol testimony. There is nothing in the contract to indicate whether the estate comprises one acre or a hundred acres. Oral evidence is admissible to show what property a written description applies to, but not first to describe it. Unless the essential features of the contract can be established without the aid of oral testimony the contract must be considered as being in parol only, and a parol contract for the sale of land cannot be enforced unless, in addition to other requisites, possession has been taken by the vendee under the contract and there has been such performance or part performance by the vendee as cannot be compensated in damages, and such as would make rescission inequitable and unjust. Hart vs. Carroll, 85 Pa., 508; Sample vs. Horlacher, 177 Pa., 247; Wright vs. Nulton, 219 Pa., 253. The plaintiffs contend that the controlling feature of this case is the allegation in their statement of claim that the defendant "took possession of the said premises."

But possession is not shown to have been taken by the defendant under the writing as a contract of sale. The plaintiffs say in their statement that the agreement as to the sale at that time "was conditioned that the said William S. Lyon, Judson A. Lyon and Rice C. Lyon would be able to procure and furnish a general warranty deed for the said premises, they not having at that time consulted all the parties in interest." The payment of the five dollars by the defendant “on account" does not sufficiently appear to have been paid on account of the consideration price of the land, because the receipt for it attached to the agreement shows that it was paid on the day of the execution of the contract, when the contract was but a contract of leasing and not a contract of sale. It is evident from the face of the plaintiffs' statement itself that the payment of the five dollars was made and the possession of the property was taken by the defendant under that portion of the contract which provided that those of the plaintiffs executing the contract "do agree to allow Wm. A. Mouck to enter and possess said estate for the period of four years for the consideration of $100 per year rental," and the taxes and insurance. And such an entry, and the subsequent possession under it, would not withdraw this case from the statute of frauds. "It is not to be disputed at this time of day that to withdraw a parol sale of lands from the blighting effects of the statute of frauds there must be an open and absolute possession taken in pursuance of the contract with a view to the performance of it. It is consequently a settled rule that a parol sale to a tenant in possession is within the statute, though his possession be afterwards continued, because there is no change cf possession, in execution of the contract." Christy vs. Barnhart, 14 Pa., 260. It does not sufficiently appear that there was a definite and concluded agreement for the sale of land at the time the defendant took possession of the property, and therefore all the elements of the essential basis of a decree for specific performance have not been shown. "The essential basis of a deree for specific performance is a definite present agreement in regard to a specific piece of land, clearly designated as present to the minds of both parties, and to be conveyed by one to the other. Without this basis there is nothing to take a case out of the general rule of law that the remedy for a contract unperformed is an action for damages. Every element of this essential basis must be clearly and fully established, even where the contract is in writing and a fortiori where it is in parol." Baldridge vs. George, 216 Pa., 231; Brown vs. Hughes, 244 Pa., 397.

We are of opinion, therefore, that this contract, if it be considered as a written contract for the sale of land, cannot be specifically enforced because the land is not sufficiently described in the contract to make possible its identification and location without the aid of parol testimony, and because it would require oral evi

Lyon vs. Mouck.

dence to show whether or not all the heirs and devisees ever agreed to a sale under this writing; that if it be considered in the light of a parol contract, that is, a contract requiring the aid of oral evidence in order that its essential features may be established, it cannot be specifically enforced because there was no possession of the land taken by the defendant under the contract as a contract of sale, with a view to the performance of it as such a contract, but the possession of it taken by the defendant was but the possession of a tenant under a lease; and that whether the contract be considered as in writing or in parol it cannot escape the statute of frauds because at the time of the execution of the writing it was not a definite present agreement for the sale of land, but in that respect was conditioned on future events.

And now, May 11, 1915, for the reason given in the opinion herewith filed, the demurrer to the plaintiffs' statement is sustained.

Defendant is responsible to the plaintiff for the fair and reasonable expense of repairing cracks in the walls and ceilings of the rooms of a dwelling, and walls of a cistern, made necessary by careless and negligent acts by blasting in constructing a railroad.

To entitle plaintiff to recover, defendant must prove specific amounts and the exact cost in restoring the property to the same condition as before the negligent acts complained of.

In equity. No. 698 July Term, 1914. C. P. Allegheny, County.

Shaffer & Schoyer, for plaintiff.

E. C. Irwin, for defendant.

FORD, J., February 27, 1915.-The bill in equity filed in this case sets forth that in 1913 the defendant John Marsch was engaged in grading and constructing the Montour Railroad; that blasting was conducted with such negligence, so carelessly and in disregard of the rights of the plaintiff Charles A. O'Brien, that the stocks of the explosions damaged his building and premises, and prayed an injunction to restrain the defendant from conducting the said work in reckless disregard of the rights of the plaintiff and to decree that the defendant pay to the plaintiff such sum as will compensate him for the damages sustained by reason of the reckless and negligent conduct of the defendant.

The answer of the defendant alleges that the use of dynamite or other similar explosive is absolutely necessary for the purpose of making excavations in railroad construction work where rock is encountered: that only such blasting was done as was necessary for breaking the hard rock formation, was not done negligently or carelessly or in disregard of the rights of the plaintiff, and that plaintiff's property was not shaken or damaged by said blasting.

Hearing was had and argument of counsel heard February 13, 1915. From the pleadings and evidence we find the following:

FINDINGS OF FACT.

1. The plaintiff, Charles A. O'Brien, was and is the owner of three lots or pieces of ground situate in the Township of Bethel, Allegheny County, being lots known and numbered as 11, 12 and 13 in a plan of lots laid out by the St. Clair Land Company, called Brookside Farms, being particularly and at large described in the first paragraph of plaintiff's bill of complaint.

O'Brien vs. Marsch.

Having thereon erected a dwelling house built in 1911 of tile and concrete of the type known as bungalow, consisting of eleven rooms with a large basement. Within a short distance of the dwelling there is a cistern of concrete construction.

2. The defendant, John Marsch, is a railroad contractor with offices in the First National Bank Building, Pittsburgh, Pa.

3. Under contract with the Montour Railroad the defendant in September, 1913, began grading and constructing a railroad for the Montour Railroad from a point near the town of Imperial to a point at or near the town of Library in Allegheny County, and at the filing of the bill was engaged in such construction work at a point in Bethel Township distant about one and one-half miles from the said premises owned and occupied by the plaintiff. Since the filing of the bill, to wit, about April or May last, work under the contract was completed.

4. In the work of grading and construction rock was encountered and the defendant used dynamite and other high explosives for the purpose of blasting the rock and earth along the line of the railroad. The use of such explosive is necessary for the purpose of making excavations and railroad construction work where rock is encountered.

5. In the fall of 1913, prior to the filing of this bill of complaint, the defendant was careless and negligent in the conduct of the blasting, and in consequence of his negligence and carelessness the shocks of the explosions shook and damaged plaintiff's building and cistern to such an extent that the plastering of the walls and ceiling in the library, the den or hall, the bath room, the room adjoining the bath room, were cracked, the floor at the hall at the entrance to the library was depressed about one and a half inches, and the concrete walls and floor of the cistern were cracked.

6. To repair the damage caused by the negligent acts of the defendant in the walls and ceiling of the rooms mentioned in the foregoing finding of fact, and in the walls and floor of the cistern, the plaintiff paid or incurred the following expense:

To W. P. Lyon for cement and labor in repairing cracks

in the walls and floor of the cistern,

To rebuilding filler wall,

For painting walls in rooms,

$29.31

30.

30.

The painting done did not repair the defects, nor put the property in the same condition it was in prior to the blasting.

By reason of the cracks in the wall and floor the cistern leaked and at times the cistern in consequence of the leakage was empty and the plaintiff was necessitated to obtain a supply of water elsewhere. The cost or expense of such supply if any, was incurred by the plaintiff, was not shown by the evidence.

7. The fair and reasonable cost of repairing the damage caused by defendant's negligence and placing the building and cistern in the same condition it was in before damaged by the careless and negligent acts of the defendant is as follows:

Repairing the plaster on the walls and ceiling of the rooms
in the dwelling and raising the floor in the hall is
Repairing the walls and floor of the cistern,

Total,

$86

85

$171

CONCLUSIONS OF LAW.

First. The defendant is responsible to the plaintiff for the fair and reasonable expense of repairing the cracks in the walls and ceilings of the

O'Brien vs. Marsch.

rooms in the dwelling and in the walls and floor of the cistern made necessary by the careless and negligent acts of the defendant.

Second. The defendant should pay to the plaintiff the reasonable and fair expense of repairing the defects and of placing the property in substantially the same condition it was in before being damaged by the careless and negligent acts of the defendant. Having found that such expense is $171, that sum should be paid by defendant to plaintiff.

Third. The costs to be paid by defendant.

Let a decree nisi be drawn in accordance with this opinion.

In re Special Deputies Entitled to One-half Penalties Under Fish Laws. Board of Game Commissioners Special deputies Fees Act of April

21, 1915.

Special deputies employed by the Board of Game Commissioners are not entitled under the Act of April 21st, 1915, to a division of the penalties provided by that act for the violation of fish laws.

Dr. Joseph Kalbfus, Secretary,

Board of Game Commissioners,
Harrisburg, Pa.

My Dear Doctor:

June 8, 1915.

Your letter of the 7th inst., addressed to the Attorney General, has been referred to me for reply.

You inquire whether, under the provisions of the Act of April 21, 1915 (No. 77), your special deputies will be entitled to one-half of the penalties recovered for infraction of the Fish Laws.

The Act of May 29, 1901, P. L. 302, Section 36, provided that one-half of every fine recovered for violation of the provisions of the Act should be paid to the informer, and the other half to the County Treasurer to be transmitted to the Fish Commissioners. This Act, however, was repealed by the Act of May 1st, 1909, P. L. 353, which provides in Section 27 that "the whole of said fines shall be paid over forthwith to the treasurer of the county, etc." to be transmitted to the "Commissioner of Fisheries for the benefit of the Commonwealth."

The Act of April 21, 1915, neither relates to, nor does it affect, the disposition of fines, but simply makes it the duty of the officers of Forestry, Fish and Game Departments to enforce the laws of all these Departments as therein provided.

You are advised, therefore, that your special deputies will not be entitled to a division of such penalties as they may recover for the violation of the Fish Laws.

You are further advised that so far as the pay of constables for services rendered in enforcing the Fish Laws is concerned, the Act of March 22, 1899, P. L. 17, makes constables ex-officio fire, game, and fish wardens, and provides in Section 4 of the Act for the payment to them of a fee of ten dollars upon the arrest and prosecution of any offender to conviction. Very truly yours,

JOSEPH L. KEEN,

Deputy Attorney General.

Commonwealth of Pennsylvania ex rel. Boyd et al. vs. Bricker et al. Corporations Elections- -Failure to Swear Tellers--Regularity of Proceedings-New Election Ordered by Court.

In a Quo Warranto proceeding to determine the right of directors to their office, the relator averred that at the annual election for five directors, two The meeting candidates received a majority and five other candidates a tie vote. adjourned and upon resuming a week later, two of the five withdrew and the other three were declared elected. An amendment to the by-laws was then passed increasing the number of directors to six, and the extra director imme- . diately elected. The answer set forth that the tellers were not sworn, that the proceedings at the adjourned meeting were regular and had been assented to by the relators, and that even if the election were invalid, they held over from the election of the previous year. Held, the answer was bad for duplicity in that it set up inconsistent pleas, but the Court would look into the whole ques-. tion and see whether there was some well pleaded fact on which a judgment might be based.

The amendment of the by-laws increasing the number of directors and the immediate election of an extra director all without notice was invalid.

The failure to swear the tellers rendered the entire election invalid and a new election was ordered to be held in accordance with the directions of the Court.

Ivory & McKay, for plaintiffs.

Weil & Thorp, for defendants.

Demurrer. No. 717 April Term, 1915. C. P. Allegheny County.

REID, J., April 13, 1915.-This is a demurrer filed by relators to the answer of respondents to the writ of Quo Warranto issued in above stated case January 29, 1915.

The substance of relators' averments appearing in their petition for the writ is as follows: That they are stockholders of the National Weather Strip Company, a Pennsylvania manufacturing corporation; that an annual election for directors of said corporation was held January 19, 1915, at which two of the relators, J. S. Boyd and P. A. Brunn, and five other persons, S. P. Bricker, C. M. Clarke, I. N. Dunn, D. Hastings and F. J. Torrance, were duly nominated for the office of director, there being five to elect; that the stockholders "proceeded regularly and in due form" to the election of such directors, J. S. Boyd receiving 1,026 votes and P. A. Brunn receiving 1,024 votes, all the remaining five nominees receiving 755 votes each, thus creating a tie as between them; that an adjournment was had until January 26, 1915, to enable the president to inform himself as to who were elected and the proper course to pursue; that on said date the stockholders convened "and without any legal action on the part of the stockholders, F. J. Torrance and D. Hastings attempted to withdraw or resign from some supposed position which they occupied pursuant to said vote;" that the chairman, C. M. Clarke, thereupon declared himself and S. P. Bricker and I. N. Dunn, together with two of the relators, J. S. Boyd and P. A. Brunn, elected for the ensuing year, against the protest of relators as to such action and declaration with regard to said Clarke, Dunn and Bricker; that after making such ruling, S. P. Bricker moved to amend the by-laws by increasing the number of directors from five to six, which motion was declared by the chairman, Clarke, adopted, against the protest of relators; that thereupon, against protest as aforesaid, D. Hastings was nominated "to fill the alleged vacancy thus made," and, also against such protest, the secretary was directed to cast the vote for Hastings and the chairman declared him elected; and that said defendants thus elected "illegally and wrongfully claim the right to exercise and do exercise * the offices of directors" of said corporation.