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Harbison vs. Harrison Township et al.

CONCLUSIONS OF LAW

FIRST. The complainant is the owner in fee of the land traversed by the public road, described in Findings of Fact 2, subject only to the easement of passage by the public.

SECOND. Annexed to the said land of complainant is his right to have the stream of water, described in Findings of Fact 3, pass off his land upon that of S. H. Crawford, the lower owner, as the same has been naturally accustomed to flow, which right is one of freehold.

THIRD. Pursuant to Section 31 of the Act of June 13, 1836, P. L. 551, the Board of Commisioners of Harrison Township is obliged to maintain a bridge or culvert over the natural channel of said stream of water, at the point where said public road first crosses the same (see Findings of Fact 3). Such bridge or culvert should have capacity sufficient to permit the free passage of the water of said stream at the usual stages and at times of ordinary freshets.

FOURTH. The Board of Commissioners of Harrison Township has no statutory power, either express or implied, to divert the said stream of water from its natural channel and to cause the same to flow along the west side of said public road upon the complainant's land. In doing so, the said Board exceeded its authority and it became guilty of trespass. The said diversion of said stream is continuous and permanent in its nature, and the same constitutes the imposition of an additional servitude upon the complainant's land. It likewise illegally deprives the complainant of his right to have the water of said stream pass off his land upon that of S. H. Crawford, as it was accustomed to flow.

FIFTH. S. H. Crawford, as the lower riparian owner illegally filled the channel of said stream where the same passed through his land from that of the complainant, thereby depriving the latter of his rights.

SIXTH. A mandatory injunction should issue, requiring the Commissioners of Harrison Township to remove the obstructions installed by them, so as to restore said stream to its natural channel, and to fill the channel which has been formed along the westerly side of said road, so as to leave nothing but the ordinary ditch for carrying away the surface water from the road.

SEVENTH. A mandatory injunction should issue, requiring S. H. Crawford to remove all obstructions from the channel, of said stream upon his land, which prevent the flow of the water thereof from the land of the complainant.

EIGHTH. The costs of this proceeding should be paid by the defendants, two thirds thereof by Harrison Township and one-third thereof by S. H. Crawford.

Let a decree be drawn in accordance with the foregoing Findings, of Fact and Conclusions of Law and be submitted, unless Exceptions thereto be filed within the time prescribed by the Rules in Equity.

BY THE COURT.

Sw.

Harwick Bronze Powder Co. vs. Pittsburgh Wall Paper Co.

Contracts- Words and Phrases-Appeal.

Plaintiff and defendant agreed upon the following: "Sold by the Harwick Company, 261 Broadway, New York, N. Y., to Pittsburgh Wall Paper Company, New Brighton, Pa., their wants of pure bronze during the year beginning July 1st, 1914, up to and including June 30th, 1915, at the following prices:" Then follows a list of prices. "Conditions: If, during the pendency of this contract, buyer can purchase pure bronze at lower prices, sellers are to have the privilege of meeting such prices, or permitting the buyers to buy elsewhere. Each delivery shall constitute a separate sale or contract." A dispute arose as to the meaning of the words "their wants," the plaintiff contending that it simply means desires and has no reference to needs.

Held: That the word "wants" is intended to mean "needs."

Appeal from County Court.

gheny County.

No. 65 January Term, 1916. C. P. Alle

Bertram L. Sichelsteil, for plaintiff.
Alexander J. Barron, for defendant.

EVANS, J., October 17, 1915. This case was tried in the County Court without a jury and judgment was entered for the defendant. The case comes before this court on an application ex parte plaintiff to appeal from the judgment of the County Court.

In March, 1914, the following paper was accepted by the plaintiff and the defendant: "Sold by the Harwick Company, 261 Broadway, New York, N. Y., to the Pittsburgh Wall Paper Company, New Brighton, Pa., their wants of pure bronze during the year beginning July 1st, 1914, up to and including June 30th, 1915, at the following prices." Then follows the list of prices. "Conditions: If, during pendency of this contract, buyer can purchase pure bronze at lower prices, sellers are to have the privilege of meeting such prices, or permitting the buyers to buy elsewhere. Each delivery shall constitute a separate sale or contract."

On August 10th and 16th the defendant ordered a shipment of bronzes from plaintiff, The bronzes were shipped and the price of same aggregated $477.40. Sometime after this date the plaintiff refused to fill the order of defendant, denying that under the terms of the contract quoted above it was under any obligations to furnish to the defendant any particular amount of bronzes and the defendant was compelled to go into the market and purchase the bronzes needed at a cost of $669.63, and, admitting the amount due to plaintiff for the bronzes furnished by it to the defendant, the defendant claimed a set-off of the $669.63 and a certificate in its favor of $192.63. Judgment was entered in favor of the defendant for the amount of the certificate claimed by it.

The whole matter of dispute in this case turns upon the meaning of the paper executed by the plaintiff and defendant in March of 1914, which is quoted above, and the particular subject of controversy in that paper is the meaning of the words "their wants," the plaintiff contending that it simply means desires and has, no reference to the needs of the defendant in the operation of its plant. The words may mean either, depending entirely upon how they are used. Wants may mean needs, or wants may mean desires. It seems to me that the paragraph in the above contract headed "conditions" makes it clear that the word "wants" is intended to mean “needs." I quote the paragraph referred to: “If, during pendency of this contract, buyer can purchase pure bronze at lower prices, sellers are to have the privilege of meeting such prices, or permitting the buyers to buy elsewhere." It is clear that there was an obligation on the part of the defendant to purchasse its bronzes from the plaintiff, unless it could purchase bronzes elsewhere at a lower price than the plaintiff was willing

Harwick Bronze Powder Co. vs. Pittsburgh Wall Paper Co.

to furnish the bronzes for. To my mind, this is conclusive of the meaning of the word "wants," and judgment from the County Court was correct. Rule to show cause why an appeal should not be allowed from the judgment of the County Court is discharged.

School District of Borough of Bellevue vs. Dawson Construction Co. Injunction Building Contract-Specifications- -Marble- -Color of- -Im

possible Task.

Specifications for a school building called for marble, specifying "Appalachian Grey Tennessee Marble" for the vestibule and for "White Tennessee Marble" for certain other portions of the building. Defendant was the general contractor, and when he sub-let the marble work, the sub-contractor called attention to the fact that there was no such marble as "White Tennessee." Samples were submitted to the architect, who selected "Pink Tennessee" for the panels and wainscoting and "Gray Tennessee" for the base and crown moulding. Shortly after the work of putting the marble in place was begun, the school board objected and the defendant was notified that the marble was not according to specifications and that it would not be accepted as the color did not comply with the contract calling for "White Tennessee." A bill was filed to restrain defendant from pro

ceeding further with the work.

Held: That as there was no "White Tennessee" marble known to the trade literal performance of the contract was impossible, and as there was no evidence that the sub-contractor had not acted in good faith, after the marble had been approved by the architect, the court would not grant an injunction.

Held: That as it did not appear that the substitution of "pink" for "white" would inflict irreparable damage for the quality was admittedly up to the standard required by the specifications, the controversy related rather to color than quality, beauty than utility, taste than substance, and if any damage resulted there was an adequate remedy at law. Bill dismissed.

Bill for Injunction. In Equity. No. 209 October Term, 1915. C. P. Allegheny County.

David L. Starr, for plaintiff.

Diamond & Zacharias, for defendant.

CARPENTER, J., July 17, 1915.-Defendant entered into a contract with plaintiff by which it undertook and agreed to erect a High School Building in the Borough of Bellevue according to plans and specifications prepared by W. J. Shaw, Architect. The specifications provide, inter alia, that the contractor shall wainscot the Lincoln Avenue entrance vestibule with marble "and that the three steps and risers at the front entrance shall be of grey marble same as wainscoting. For this work the contractor was required to use Appalachian Grey Tennessee Marble." The specifications further provide that the walls where shower baths are located and the walls of the toilet rooms shall be wainscoted with White Tennessee Marble. The contractor sub-let the marble work to the Pennsylvania Marble & Mosaic Company. It appears that when the specifications were submitted to the subcontractor for its bid the use of the word "white" was noted and the attention of the Architect was called to the fact that there was no such marble as "White Tennessee." Samples of Tennessee and other marbles were submitted to the Architect who selected "Pink Tennessee" for the panels or wainscoting, and "Grey Tennessee" for the base and the crown moulding. The Pennsylvania Marble & Mosaic Company then proceeded with the work, procuring marble of the several sizes and colors required under its contract in Tennessee, where it was finished and shipped, ready to put in place. Shortly after the work of putting the marble in place was begun, objection was made by members of the School Board. The work of putting in the

School District of Borough of Bellevue vs. Dawson Construction Company. marble was begun June 3rd, and continued until June 11th. Under date of June 18th, 1915, a letter was written to and received by the defendant, which reads as follows:

Dawson Construction Co.,

May Bldg.,

Pittsburgh, Pa.

Gentlemen:

"Bellevue, Pa., June 18, 1915.

Your attention is called to the specifications relating to Marble in the toilets of the new Bellevue High School, which specifies white marble throughout, excepting the floors, which are tile.

The Marble now being installed is pink and gray.

You are hereby notified that the change in color was not authorized by the Board and that the marble now being used by you will not be accepted and demand is made that you conform to the terms of your contract in relation to the same.

By Order of the Board,

(Signed) JAS. W. GRAHAM,

Secretary.

Copy to W. J. Shaw. Received June 19, 1915, Dawson Construction Co." On July 15th, plaintiffs filed its Bill, praying that defendant be restrained and enjoined from proceeding with the placing of Pink Tennessee Marble in the toilet rooms and shower baths, and that it be ordered and directed to remove the Pink Tennessee Marble already placed in the building. The Pennsylvania Marble & Mosaic Company was not made a party to the Bill and it is conceded that it is, in this matter, an innocent party.

From the admissions and from the testimony it is clearly shown that there is no such marble as "White Tennessee" known to the trade. Whether the specifications of "White Tennessee" was due to ignorance of this fact or was a mere error does not appear; the fact that it was specified is not disputed; it is not disputed that the Marble & Mosaic Company acted in good faith, nor that it has purchased and placed upon the ground the finished marble necessary to complete its contract. The evidence shows that the only "White American Marble" known to the trade is of a coarser texture than the grey and pink marbles of Tennessee, and is of an inferior quality and somewhat cheaper. That the marble being used was selected by the Architect and was contracted for with his knowledge and approval is not controverted. Plaintiff contends that the Architect had neither express nor implied authority to select or approve any marble except that described in the specifications. Defendant contends the contrary, and claims that in view of the admitted fact that there is no such marble as called for by the specifications, it was clearly within the scope of his authority to select, so long as he did not permit the use of an inferior quality of marble.

We do not deem it necessary to enter upon an elaborate discussion of this phase of the dispute. "White" and Tennessee" as descriptive of marble are conflicting and meaningless; one or the other must be eliminated or performance of the contract is impossible. The Architect representing the School Board gave the preference to "Tennessee," thereby procuring marble of the quality desired. The question is not whether "color" or "quality" shall control the election; whether "white" or "Tennessee" shall be given the preference, but whether the Court shall by injunction undertake to compel the doing of the impossible. For it is not disputed that an injunction will ex necessitati release the contractor from the doing of that which it is admitted is physically impossible.

There is no evidence that the completion of the contractor as authorized and approved by the Architect, that is, the substitution of grey and

School District of Borough of Bellevue vs. Dawson Construction Company.

pink for white will result in any serious or substantial loss or injury to plaintiff, and certainly no evidence to sustain the allegation of irreparable loss. It is agreed that prompt completion of the building is important. If an injunction is granted and the School Board insists on having white marble, then work must stop until a new contract is made.

It may not be out of place to state that the undisputed testimony is that pink and grey Tennessee marble, such as that selected for plaintiff's building, is being used in the finest school houses and large buildings in this City and elsewhere.

If the alleged violation of the contract results in loss and damage to the School District, it can in no event exceed the expense incident to removing the objectionable marble and the cost of labor necessary to put other marble in place, and any liability of defendant for this expense can be adjusted or adjudicated in an action at law.

The controversy seems to relate rather to color than quality; beauty than utility; taste than substance. The Directors have done all that can reasonably be required. We think that the interests of the School District will best be subserved by allowing the work to proceed.

We think it unwise to deprive the school children of the use and advantages of a modern building while a question of color in the toilet and bath rooms is being adjudicated and, therefore, refuse the injunction, and direct that the Bill be dismissed. If counsel desire special Findings of Fact and Conclusions of Law, they will so indicate.

Beedle et al. vs. Monongahela Valley Brewing Company. Mortgage Scire Facias Sur--Corporation- - Acknowledgment Return of-Set Off-Statute of Limitations.

Election

On a rule for judgment for want of a sufficient affidavit of defense on a scire facias sur mortgage, it appeared that the affidavit of defense was made by a Receiver in Bankruptcy, who alleged that while the mortgage purported to have been executed on April 9, 1904, it was not authorized by the Board of Directors on that or any previous date. The mortgage was dated April 25, 1904, on which date a meeting and election of the stockholders was held. It was alleged that no return of this meeting and election to increase the indebtedness of the corporation was made to the Secretary of the Commonwealth.

Held: That it was immaterial that the notary's certificate was dated April 9, 1904, as, between the parties, this was no part of the mortgage, and that the return of the election was a matter that did not affect the validity of the mortgage.

Defendant claimed a set off in that the mortgagee, who was treasurer of defendant corporation at the time said mortgage was placed but who had since died, and whose executors were plaintiffs, was indebted to the defendant in the sum of $22,000, with interest, which indebtedness arose from the treasurer's failure to pay into the treasury of the company $25 a share for 880 shares of stock, which fraud had been concealed until January, 1912, the stock having been sold in 1902, and reciting that a bill in equity was then pending for an accounting. Held: The set off cannot avail defendant in that the claim arose ex delicto, and further it was barred by the statute of limitations as against the corporation. Rule absolute.

Sur Rule for Judgment. No. 613 July Term, 1915. C. P. Allegheny County,

H. and G. C. Burgwin, for plaintiffs.

Marion H. Murphy, for defendant.

SHAFER, P. J.. September 18, 1915.-The action is a scire facias on a mortgage made in 1904 to secure certain bonds, the interest thereon being payable semi-annually, and the mortgage itself being due, by the terms

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