Weschler v. Buffalo & Lake Erie Traction Co.

• Citation: 51 Pa.Super. 92
• Decision Date: 18 July 1912
• Docket Number: 1-1912
• Parties: Weschler v. Buffalo & Lake Erie Traction Company, Appellant
• Court: Superior Court of Pennsylvania

51 Pa.Super. 92

Weschler v. Buffalo & Lake Erie Traction Company, Appellant

No. 1-1912

Superior Court of Pennsylvania

July 18, 1912

Argued April 8, 1912 [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Erie Co.-1908, No. 80, on verdict for plaintiff in case of Andrew P. Weschler v Buffalo & Lake Erie Traction Company.

Assumpsit to recover back money had and received. Before Walling, P. J.

The facts are stated in the opinion of the Superior Court.

At the trial the court admitted under objection and exception the contract upon which the suit was based.

The court charged in part as follows:

[A contract could not be any more specific than this is. By the plain terms of the contract, he was to have his money back if the road was not completed within six months. And if you find as a fact that they did not build that road, and complete it, and have it in operation as a street railway, within the six months from the date of the contract, we instruct you as a matter of law that under all the evidence the plaintiff is entitled to recover his money back, because that was the contract.

The evidence here is all on one side, and all tends to show that the street railway was not completed within the six months.]

[It seems that it took them until about the middle of September, 1907, to get permission to lay their tracks across the switch of the Bessemer Railroad, and running into the Ball Engine Works on Twelfth street, but after they got that permit they did not build this railroad until the next spring. They allowed the six months to expire without having completed their railroad. No passenger car could have been used on it until it was completed, which, according to the undisputed evidence, was about ten months after the contract was executed.

If you so find the facts the plaintiff is entitled to recover his money back.]

[There is some question raised as to the authority of the general manager of the company to bind the company in this transaction, but inasmuch as the company got the money, and his acts seem to have been ratified, we see no reason why the company should not abide by the contract made by their general agent for the extension of this line of its railway. It was a contract made in the execution of the company's business, and in our opinion, under all the facts in this case, is binding upon the defendant. We think the $ 986 should be treated as perhaps liquidated damages; at all events it is specified in this contract that Mr. Weschler is to have his money back unless they build their road within six months.]

Verdict and judgment for plaintiff for $ 986. Defendant appealed.

Errors assigned among others were rulings on evidence, quoting the bill of exceptions; above instructions, quoting them.

Affirmed.

J. M. Sherwin, for appellant. -- No authority is shown from defendant to its general manager for the execution of the forfeiture contract sued upon: Fisher v. Gas Co., 1 Pearson, 118; Pittsburg Melting Co. v. Reese, 118 Pa. 355; Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Allegheny County Workhouse v. Moore, 95 Pa. 408; First Nat. Bank v. Hoch, 89 Pa. 324; Clarkson v. Keystone Oil Cloth Co., 23 Pa.C.C. 189; Junction R. R. Co. v. Penna. R. R. Co., 2 W.N.C. 277; Livezey v. Qualey, 14 Montg. County, 205; Beal v. Express Co., 13 Pa.Super. 143; Fee v. Adams Express Co., 38 Pa.Super. 83.

All courts abhor forfeitures and will not decree forfeitures where it can be avoided: McCarty v. Mellon, 5 Pa. Dist. 425; Miller v. Chester Slate Co., 129 Pa. 81; Millcreek Twp. v. Street Ry. Co., 216 Pa. 132; Becker v. Ry. Co., 25 Pa.Super. 367; Dixon v. Breon, 22 Pa.Super. 340; Stewart v. Stone, 127 N.Y. 500 (28 N.E. 595); Howell v. Coupland, L. R. 1 Queen's Bench Div. 258; Summerson v. Hicks, 134 Pa. 566; Oil Creek R. R. Co. v. R. R. Co., 57 Pa. 65.

J. Reed Craig, for appellee. -- The paragraph in the contract in regard to refunding the amount advanced by the plaintiff is not in the nature of a penalty whatsoever or even liquidated damages, but is an original undertaking whereby the defendant agrees to reimburse the plaintiff for the amount so advanced, in case defendant neglects or fails to comply with all the terms of the contract in question. There is no evidence which would sustain the conclusion that there was any modification whatever of the contract in question: Crawford v. Gas Co., 183 Pa. 227; Dickson v. Mfg. Co., 179 Pa. 343; Malone v. R. R. Co., 157 Pa. 430; Phila. & Del. County R. R. Co. v. Conway, 177 Pa. 364.

By a general agent is understood not merely a person substituted for transacting all manner of business but a person whom a man puts in his place to transact all of his business of a particular kind. An authority of this kind empowers the agent to bind his principal by all acts within the scope of his employment: Loudon Sav. Fund Society v. Bank, 36 Pa. 503; Williams v. Getty, 31 Pa. 461; Rice v. Jackson, 16 Pa.C.C. 15; Baltimore & Phila. Steamboat Co. v. Brown, 54 Pa. 77; Adams Express Co. v. Schlessinger, 75 Pa. 246; Parker v. Ins. Co., 129 Pa. 583.

A company is bound by the acts of its general manager, notwithstanding he exceeds his authority, where it has ratified his act by accepting premiums: Langenheim v. Anshutz-Bradberry Co., 2 Pa.Super. 285; Titus v. R. R. Co., 5 Phila. 172; Chicago Cottage Organ Co. v. McManigal, 8 Pa.Super. 632; Mundorff v. Wickersham, 63 Pa. 87; McClintock v. Oil Co., 146 Pa. 144; Childs v. Digby, 24 Pa. 23; Com. v. R. R. Co., 150 Pa. 312; Hopkins v. Everly, 150 Pa. 117; Wheeler & Wilson Mfg. Co. v. Aughey, 144 Pa. 398; Borie v. Sattethwaite, 180 Pa. 542; Imbrie v. Insurance Co., 178 Pa. 6; Straub Brewing Co. v. Bonistalli, 5 Pa.Super. 415; Huntzinger v. Harper, 44 Pa. 204; Gordon v. Preston, 1 Watts, 385; Hinman v. Crammer, 9 Pa. 40; McCulloch v. McKee, 16 Pa. 289.

Before Rice, P. J., Henderson, Morrison, Orlady, Head and Porter, JJ.

OPINION

ORLADY, J.

The parties to this action entered into a written agreement by which the defendant obligated itself to build, maintain and operate a double track street railway between designated termini; to be completed and in operation within six months from the date of the agreement. To further this enterprise the plaintiff was to pay the sum of $ 986 to the defendant " said amount being the price or cost of the twelve foot strip to be acquired from the executors and the trustees under the will of C. M. Reed," etc. and to be paid upon the execution of the agreement. The concluding paragraph is as follows: " Seventh -- It is also agreed and understood that if the first party (defendant), its successors or assigns, shall fail, refuse or neglect to construct and complete its said proposed extension, within the period of six months from this date, then the said first party agrees to refund to the said second party his administrators or assigns, the said sum of nine hundred and eighty-six dollars, at the end of the six months." The plaintiff paid the sum he promised as his consideration, on the date the contract was signed, by two checks drawn to the...