cation where the act complained of is in | in 2 Farnham on Waters (1904), § 582, itself as well as in its incidents tortious. it is said: "The character of the injury caused by the obstruction of the flow of water in a stream so as to throw it back on upper land is such as to bring the case very easily within the jurisdiction of a court of equity." Under the authority of the cases which we have cited, and that of many others which might be added, we have no doubt whatever as to the right of the plaintiff in this case to the protection of a court of equity, and to the relief by injunction for which he prayed. Counsel for appellant also argue that the plaintiff was guilty of laches, and has forfeited his right to equitable relief by standing by, and without objection. permitting appellant to spend large sums of money in the preparation and erection of the flash boards. This contention seems to lack foundation. In fact, it is based entirely on the testimony of appellant's superintendent that "the cost of the collapsible boards arrangement, together with the equipment to utilize it, is approximately $100,000." But there is nothing in the evidence to show that either the plaintiff or his predecessor in title knew that appellant was preparing to make the proposed addition to his dam, or was spending any money for that purpose. The flash boards were first erected for operation on August 26, 1911, and six days later, the grantor of plaintiff by his attorney wrote to appellant, making objection to the use of the boards, for the reason that they had flooded his land, and threatening to take steps to protect himself in the matter. The boards remained up, either wholly, partially, until the early part of October, in that year, a few days after plaintiff acquired title, and there is no evidence that they were put up again until after the date when the present bill was filed, June 11, 1912. It is averred in the bill that appellant was about to begin to raise the dam to an additional height of three and a half to five feet, and that by such an increase in the height plaintiff's lands would be flooded by back water and in large part rendered valueless for the purpose of their intended use. The trial judge very properly said "upon this con ceded state of facts, it seems to be going | ant. All of the amount which defendtoo far to charge the plaintiff with ant agreed to pay to the plaintiff by the laches." In Alexander v. Kerr, 2 Rawle terms of the contract has been paid, ex83. Mr. Justice Gibson said (p. 89): cept the sum of $879. All extra work "Against the original author of a nuis- has also been paid for, except one item ance (the overflowing of the land of an which plaintiff claims and which upper riparian owner by a dam, on pre- amounted to $550. mises below him) no forbearance to sue, short of the period which, in analogy to the statute of limitations, has been assumed as conclusive in the case of an adverse occupancy of a water right, can be set up as bar. . . . Nor can this period be abridged by the interference of a purchaser, who has no reason to infer from a forbearance for a considerable time a determination to forbear forever." The assignments of error are overruled, the decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant. Common Pleas--Law. Ingram v. Brientnall. Where an owner has contracted for buildings to be completed at a certain date, but permits the builder to complete the contract and makes a part payment after that date, he thereby waives his right to insist that the building should have been completed on that date. It is a substantial performance of the contract to finish a block of houses within a few months of the date agreed upon for their completion, and while, in a suit under such contract, the owner might deduct any loss suffered by the delay, his failure to prove such loss relieves the jury from consideration of whether or not the buildings were completed at the time called for in the contract. Rule for a new trial. C. P. of Lancaster Co., October Term 1912, No. 66. Chas. G. Baker, John A. Nauman and John E. Malone, for defendant and rule. Coyle & Keller, contra. July 3, 1915. Opinion by HASSLER, J. The plaintiff, on October 3, 1909, entered into a contract with the defendant to erect eleven houses on the east side of Ruby Street, in this city. The houses were erected and accepted by the defend This suit was commenced by the plaintiff to recover these amounts from the defendant. The jury found for the plaintiff for $879, with $254.84 interest, amounting to $1133.84. They found in their verdict that this amount was the "balance of contract" with interest. They did not find in favor of the plaintiff for his claim for extra work. Eight reasons have been filed by the defendant for a new trial. The first three reasons are general and without merit, as there is sufficient evidence under the law to justify the verdict. The fourth reason is: "The Court erred in charging the jury as follows: The plaintiff claims that $879 of the price agreed on has not been paid, and the defendant, in showing what has been paid, practically admits that $879 is unpaid.' It is a statement of fact that was admitted by both parties at the trial. The charge, as a whole, shows that, in saying that that amount was unpaid, we could not have been understood by the jury to mean that the defendant was liable for it. He offered a defense to its payment, and we gave full instructions to the jury as to this defense. No error was, therefore, committed in making this statement to the jury, and it could not have misled them. The fifth and sixth reasons are as follows: 5. The Court erred in charging the jury as follows: Much has been said in this case that the plaintiff did not complete his contract on the first of March. So far as we are concerned here, we have nothing to do with that. The plaintiff says it was the defendant's fault; but owner of the premises, the defendant, even that you need not consider. The permitted the plaintiff to go on and complete the contract, and, after the time when it should have been completed, he paid, on account of the amount called for in the contract. Therefore, he waived his right to insist on the building | the defendant denies it-that he admitted being done on the first of March.'" he owed him some money and offered him $500 in settlement, and it was after this that he told Mr. Wright that he owed in this case, and that he would pay him when he got ready.'" "6. The Court erred in charging the jury as follows: But, even though there was not a waiver of this, it was a sub-between $800 and $900 to the plaintiff stantial performance of the contract to finish the houses within a few months afterwards, and, if the defendant sustained any loss thereby, he might have proved that loss and deducted it from the contract price. But he has not proven that he has sustained any loss by reason of the delay in the completion of the building, so that you need not consider the question whether the buildings were completed at the time called for in the contract or not.'" We gave these instructions after examining the cases of Pressy v. McCornack, 235 Pa. 443: Smith v. Piana Company, 239 Pa., 496; and Clement v. Didier-March Co., 244 Pa., 616. We have carefully read them again and find that we not only stated the law as it is laid down in them, but in almost the exact language. The defendant accepted the houses without objection, and did not prove that he had suffered any damages either in loss of rents or because of any defect or imperfection or failure to finish them in accordance with the contract. The only way that he could have taken advantage of a delay in the performance of the contract, or in the plaintiff's failure to finish the work as agreed upon, as the plaintiff's part of the contract was substantially performed, would have been to have deducted any loss or damage by reason of such failure. We are convinced that the charge, so far as the portions referred to in these reasons are concerned, is correct. The seventh and eighth reasons are as follows: "7. The Court erred in charging the jury as follows: You will remember the defendant says he went into the back room and wrote the receipt, and wrote in the houses on Ruby Street, that nothing was said during that transaction about the houses on the east side.'" "8. The Court erred in charging the jury as follows: Now, you will remember, too that it was after the signing of this receipt that the plaintiff says The testimony showed that the defendant had another contract for the erection of other houses on the west side of Ruby Street, which was entered into some time after the houses on the east side were completed. When they were finished, he settled with the plaintiff for them, and wrote this receipt. which the plaintiff signed. "Lancaster, Pa., June 2nd, 1911. Received from Brientnall & Boardman, One Thousand Two Hundred and Forty-Three and ($1243-37) Thirty Seven Cents, payment in full for full completion of Ruby Street Homes, with the understanding that the said J. F. Ingram will from time to time, without any cost to said Brientnall & Boardman, make little necessay repairs, such as swelling of door, windows, etc. J. F. Ingram. SEAL." It was a question for the jury whether this receipt was given in settlement for the claim involved in this case, that is, for the houses on the east side of Ruby street as well as those on the west side which were the ones included in the subsequent contract. The facts mentioned were important in deciding this question. The defendant testified, in his examination in chief, that some one said the could not say who) at the time the receipt was given, that it included “both houses." Afterwards, in his cross examination, he testified that the meeting when the receipt was given was held for the purpose of settling for the houses on the west side of the street, which are the ones that were included in the second contract. The payment was the final payment for those houses, and was the exact amount that was due for them. He then added: "That is all that was said at that time." In his re-direct examination, he said, that, at the time, or previous to the time, the receipt was given, it was agreed that all the differences between them were to be cleared up when settlement was made. Now, from all of this testimony, it is clear | that we were justified in saying to the jury that nothing was said at the time the receipt was signed that it was for the houses on the east side of the street. This is what he says in his cross examination, which was his last statement on the subject, and the fact that he subsequently testifies to what might have occurred at that time, or previously, confirms our view that what he said in cross examination was what he actually did mean. We think, therefore, that no error was made in our statement of the fact to the jury. As to the statement of what he told Mr. Wright, included in the eighth reason, it is urged that this was misleading, as the jury would understand that the defendant admitted having told it to Mr. Wright. Our charge shows that the jury could not have understood this, as we told them that the defendant denied saying it to Mr. Wright. We are not convinced that any error was committed on the trial of the case as pointed out in any of the reasons, and we, therefore, discharge the rule for a new trial. Rule discharged. Julius Schaeffer v. Clover Club Relief. Lease-Judgment on tract. Breach of con "Third. And in case the rent is not paid by the said lessee as the same becomes due, then the said lessee authorizes and empowers any practicing attorney of any court of record in Pennsylvania, or elsewhere, to appear in said court and confess a judgment in an amicable action for ejectment for the premises above described, and authorize. the immediate issuing of a writ of Habere Facies Possessionem with clause of Fi. Fa. for the costs, without asking leave of court." No amicable action of ejectment was entered in this Court, and no judgment was confessed for the premises described in the lease. No failure of the lessee to pay rent is alleged on the record. The attorney for the plaintiff, on April 14, 1915, handed a paper, to which the lease is attached, signed by himself, to the prothonotary, which says: "The prothonotary hereby instructed to enter judgment on the attached lease for the sum of (280.00) Two hundred and eighty dollars." Whether this amount is claimed for unpaid rent or from some outside. transaction does not appear. is In Patterson's Executors . Pyle, I Mon., 351, it is decided that, where an amicable action of ejectment is entered on a lease, there must be something on the record to show a breach of the covenants of the lease which authorizes the entry of judgment, or a judgment entered thereon will be stricken off. The lease only authorizes a confession of judgment for the premises in an action of ejectment. There being no amicable action of ejectment, and no failure of the lessee to pay rent appearing on the record, no judgment could be properly entered. The warrant of attorney only Rule to open judgment and let defendant into a defense. C. P. of Lan-under these circumstances, and then for be entered authorized judgment to caster Co. January Term, 1915. No. 852. Fi. Fa. to April Term, 1915, No. the premises and not for an amount of A judgment for a stated sum entered against a lessee on the written direction of the lessor's attorney to the prothonotary to enter the same "on the attached lease," without averring breaches of covenant or failure to pay rent or how the amount due is determined, will be stricken off where the lease only authorizes the confession of judgment in ejectment with writ of possession and fi. fa. for costs on failure to pay rent. 51. B. F. Davis, for rule. July 3, 1915. Opinion by HASSLER, J The defendant was the lessee of a property of the plaintiff. The lease is in writing. A clause of it provides: money claimed to be due. The application here is to open the judgment, but as it has been shown that the judgment was improperly entered, we can, and will, consider the rule one to strike off the judgment. We make absolute that rule and strike off the judgment. Rule made absolute. Legal Miscellany. The Mannerless Age. When that Thomas Hollis of St. Mary Whitechapel, citizen and draper of London," who "at sundry times had "remitted divers sums of money to the Treasurer of Harvard College in New England," rounded out his useful life by drawing his will on January 6, 1723. he left one hundred pounds in trust for the use of the "Society for the Refor mation of Manners." It was a worthy benefaction, but the task undertaken by the society which received it was probably beyond the powers of its estimable directors, and quite out of proportion to its endowment. The two centuries that have past have not witnessed its accomplishment either in the Old World, where Mr. Hollis accumulated his wealth, or in this New World in which he placed his faith. Of this failure of our civilization we have just had interesting evidence in the pastoral letter sent forth by the House of Bishops, lately in session in this city. The Church is warned in this message that "there has been a decay in manners, and men and women have been led astray into accepting the novel because it is exciting, without heeding the fact that it tends to lower respect for self and for others." Now, habits and poses are brought about by two influences. They are determined in part by what we catch and in part by what we admire. Susceptibility to things catching varies, no doubt, in space and in time. Savages succumb to measles more readily than urban populations do, and we whose material prosperity has overtaken us suddenly, catch vulgarity as inevitably as the rustic catches camp-meetings religion. Our admirations, however, affect our susceptibility and our resistance to things catching. In the Age of Chivalry bad manners ceased for a time to be catching because nobody admired them. Bravery, dignity, courtesy, graciousness and personal honor were so greatly admired that. almost unconsciously, men and women fell into a habit of treating one another with respect and behaving collectively with decorum. In New England and in Virginia two or three generations ago people admired character and family pride, and social intercourse reflected their preference. In France the art of gracious conversation survives, because the Frenchman still admires intellect. In present-day America we admire business success, political sagacity, good ball pitching, heavy batting. Dr. Cook and Harry Thaw. None of these admirations prevails against our egotistic impertinence and our democratic determination to be common. Whether an age of intelligent refineThe bishop's admonition will be as ment and prevalent good breeding will futile as the Hollis bequest. We live in supervene is a question not easy to anthe Mannerless Age. Its characteristics swer. Good manners are the finest are neither more or less intangible than achievement, the perfected product of were those of the Dark Ages, or those of good society, and good society cannot the Age of Chivalry. A community or be created by money, or bought with it. an age gets a descriptive name because Money and deviltry can create a "smart a particular manifestation of inertia set," and the smart set is the charactermarks it, or a particular enthusiasm per- istic product of the Mannerless Age. vades it, or because it acquires a habit Good society and good manners can be or a pose as characteristic as a man's created only by money, intellect and chargait. The present age has acquired both acter working together in a peculiarly the habit and the pose of bad manners. happy combination. The combination It is brash, brazen and uncivil, both un- becomes possible only when intellect and consciously and consciously. As a fact character are genuinely and widely adof general observation we are fresh, im-mired. As professional optimists we are pertinent, immodest and common. We cannot help being fresh, we like being immodest, and we mean to go on being common, on principle. looking for any slight indications that may appear of a saving admiration for intellect and character. -The Independent. |
