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LANCASTER LAW REVIEW. the said H. M. Klugh would faithfully

,

collect the taxes embraced in said Vol. XXXII.) FRIDAY, JAN. 15, 1915. [No. 11 duplicate and would pay the same into

the hands of the proper treasurer of

said district according to law, and settle Common Pleas-- Law up said duplicate with said district on

or before the first day of June, 1914.

It is alleged that, at the end of the Pequea Township School District v. Klugh fiscal year, the accounts of said Klugh and Benedict.

were duly audited by the auditors of School tax collector-Suit for taxes col- the said township, as provided for in

lected- Affidavit of defense-Payment section 2,607 and 2,608 of the School -Practice-School Code of May 18, Code, and that the auditors found in 1911.

his hands the sum of $1,051.84 due and nder the School Code of May 18, 1911, owing by him to the treasurer, and that P. L. 309 the report of the auditor unappealed no appeal has ever been taken from said irom showing taxes collected and not paid finding. It is also asserted that the over is conclusive against a tax collector of amount thus ascertained to be due rea district of the fourth class and his surety, and therefore in a suit by the school district mains as yet unpaid, and it has not against such collector and his surety for been paid to the school district, although taxes collected, an affidavit of defense which frequently demanded. As against this, merely avers payment without denying that but one essential fact thus set forth is the accounts were regularly audited and the report unappealed from is insufficient.

denied by Harry H. Benedict, and this Where payment is relied on as a defense is the general statement that H. M. the affidavit should set forth the time, manner Klugh turned over and paid to the plainand amount of payments.

tiff all school taxes collected by him It is not proper practice to have an affidavit of defense signed by the attorney for for the year 1913. the defendant, and only the jurat signed by

We do not think that that affidavit of the defendant. Such affidavit is not good un- defense is sufficient. It will, in the first less an allegation is made of inability or other sufficient reason why it was not signed that the accounts of Klugh were regu

instance, be observed that it is not denied by the defendant.

larly audited and that a balance was Rule for judgment for want of a suf: ascertained to be in his hands. Nor is ficient affidavit of defense. C. P. of it disputed that no appeal was ever taken. Lancaster County, September Term The School Code of May 18, 1911, P. L. 1914, No. 33

309, provides that the accounts of the H. Frank Eshleman, for rule.

school districts of the fourth class H. Edgar Sherts and John A. Nauman, clares that, “ in any school district of

shall be audited, and section 2,627 de

the fourth class, if any sum is charged January 9, 1915. Opinion by Landis, against any person or persons by audi

tors thereof, and their report containThe plaintiff, under the School Code, ing such fact is not appealed from is a corporation, embraced within school as herein provided, said auditors shall districts of the fourth class, and, as such, promptly, within thirty days after the it levied and assessed a school tax on filing of such report, make a certificate Vay —, 1913, for the fiscal year begin- stating the name of the district and the ning the first Monday in July, 1913, and name of the person or persons charged the same was entered on the proper with any sum or sums, and the amount duplicate for that year. It must be taken or amounts thereof, certifying the same as true, for it is not denied, that H. M. to the prothonotary of the Court of Klugh was duly elected collector of Common pleas of the county in which taxes in Pequea Township at the elec- the district is situated, or in which the tion held in November, 1913, and Harry school buildings of the independent disFI. Benedict became surety on his bond 'trict are located; and the prothonotary

contra.

P. J.

reason.

of said Court shall forthwith enter a fact that the affidavit of defense is judgment thereon, in favor of said signed by the attorney for the defendant, school district and against the person or and only the jurat is made by the depersons therein charged with the amount fendant. This does not seem to us to thereof, and, when so entered, the same be good form or proper practice. shall be a valid judgment in favor of affidavit of defense made by an attorney, the school district against the person without allegation of inability or other or persons charged therein with the sufficient reason why it was not made same, which judgment, together with by the defendant, is not good. See costs, shall be collected by said district Safety Banking & Trust Co. 0. Conwell, for its use and benefit." The audit was, 28 Sup., 237; Phillips v. Allen, 32 Sup., therefore, conclusive as against Klugh, 356. and it follows that it was equally so

We, therefore, for the reasons given, against his surety. It, therefore, does make the rule absolute, and order judgnot lie in the mouth of Benedict to as- ment to be entered against Harry H. sert that Klugh, his principal, has paid Benedict, the defendant, for the sum of over all the taxes collected by him for $1,051.84, with interest from August 13, the year 1913, when the auditor's report, 1914, making, in the whole, $1,077.61. unappealed from, shows that he has not Rule made absolute. done so, but that the amount claimed in this suit was collected and not paid over.

Shaub v. Manheim Township. The affidavit of defense is also clearly insufficient for another

The

Diversion of surface drainage by road i finse therein set forth is entirely too

supervisors. general. Allegations of payment must Township supervisors may macadamize their be particular as to time, amount, man- roads but must not disturb the natural flow

cause ner of payment, and to whom paid. In of surface drainage. They cannot Bube v. Hauck, 16 Lanc. Law REVIEW, i greater quantities than it would flow natur

water to flow at any other place or in any 412, this Court held that, “ when pay- ally upon adjoining property, nor can ment is relied upon as a defense, all the adjoining land owner complain of a revercircumstances of the alleged payment it had been disposed of otherwise for many

sion to the natural course of drainage after must be set forth in the affidavit of de

years. fense with certainty and particularity, In an action against township supervisors and not generally and inferentially

for damage for diverting surface drainage that “a mere general averment that the

there is no question of the exercise of judgdebt has been paid or that the defend- where water should now, and it is proper to

on the part of the supervisors as to ant is not indebted to the plaintiff is refuse a point that if the supervisors acted in insufficient." In Weidman V. Frank, accord with their best judgment the evidence 19 LANC. LAW REVIEW, 30, it is said of neglect must be clear.

In such case it is not error to permit witthat, “where payment is relied on as a

to testify to conditions before and defense, the affidavit should set forth after the road was repaired. thể time, manner and amount of the Where, in such case, there is evidence of payments"; and in Eaby v. Stambaugh, diversion of the surface drainage and injury 21 LLC. LAW REVIEW, 365, that, “ in road the case is for the jury.

to the plaintiff thereby after repairs to the a suit on a book account, an affidavit of defense is vague, evasive and insufficient

Rule for judgment n. 0. v. and rule

for a new trial. C. P. of Lancaster Co., which alleges payments, but fails to give tl.e dates and amounts thereof, or the August Term 1913, No. 65. amount of a receipt alleged to have been H. Edgar Sherts and Harnish & omitted from the plaintiff's accounts.” Harnish, for defendant and rules. See, also, Stockley r'. Riebenack, 12 Sup.,

J. W'. Denlinger and John E. Malone, 169. Leas v. Hafer, 39 Sup., 160; Hies.

contra. tand 7. Williamson, 128 Pa., 122; McCracken v. First Reformed Presbyterian January 9, 1915. Opinion by HASCongregation of Pittsburgh, Ini Pa., 106. SLER, J.

We wish, also, to call attention to the The plaintiff owns land located along

an

ment

nesses

* * *

a public road in Manheim Township. other words, if the Township of ManIn his statement, he claims it was in- heim in this case by reason of breakers jured inter alia because the defendant had kept water from flowing upon the * did turn, direct and run the water from Shaub property than naturally would its natural channel and course

have flowed there, and had done this for and did break and run the same in, upon, many years, it did not prevent it from and on the fields * * * premises and

* * premises and subsequently letting the water flow into plantations of the plaintiff, &c.” At the its natural water course over the Shaub trial it appeared that the water, al- property, if that was its natural course. leged to be thus diverted, was that which Now the question for you to consider gathered on the public road, along which here is, did the supervisors of Manthe plaintiff's land is located. The trial heim Township cause more water to resulted in a verdict in the plaintiff's How on the Shaub property than would favor, and we are now asked to enter flow there naturally? judgment for the defendant n. 0. V., or These views are in conformity with to grant a new trial.

the law as decided in numerous cases, In our charge to the jury we instructed among which are Kauffman v. Griesemer, them as to the rights and duties of both 26 Pa. 407, Martin v. Riddle, 26 Pa. the plaintiff and defendant as follows: 415 (Charge of Lowrie, J., to the jury); " It is the law in Pennsylvania that Hays v. Hinkleman, 68 Pa. 324; Rhoads where one owns land lower than adjoin- v. Davidheiser, 133 Pa. 226; Meixell ing land he is burdened with the flow of W. Morgan, 149 Pa. 415; Taylor v. the water that gathers on the surface of Canton Twp., 30 Sup. 305; Bellas v. the higher land. The owner of the Pardoe, 2 Mona., 355. higher land, however, cannot flow upon The jury found that the defendants the lower land any greater quantity of did divert water from its natural water water than naturally gathers on his land, course to and upon the plaintiff's land nor can he cause it to flow upon the to his injury. In disposing of the rule lower property at any other place than for judgment non obstante and the reait would naturally flow. If he does do sons for a new trial, which claim that these things, or either of them, and the the verdict is against the law and the lower property owner is injured, the evidence and the charge of the Court, it upper property owner is liable in dam- is only necessary to ascertain whether ages for such sum as will compensate there is any testimony to justify the findthe lower property owner for any in- ings of the jury, as we are satisfied that jury thereby sustained. The same rule they were correctly instructed as to the applies to public roads. The supervisors, i law. or township authorities, having control It was shown by plaintiff's witnesses of public roads, may flow, or cause to that the defendant's supervisors repaired flow, the water which gathers upon its the road passing his house about three roads in its natural water course upon years ago. They raised it in some places, the land of adjoining property holders. macadamized it and removed some breakThey may macadamize their road, buters and pipes. Prior to these changes they cannot flow water at any other place surface water flowed down on both sides than where it fows naturally, nor in any of the road, some of it away from plaingreater quantities than it would flow tiff's property and some of it over and naturally upon the property of those | upon it.

This condition existed for owning the property adjoining the road. many years. No injury was done to The fact that drainage for many years plaintiff's land by the quantity of water by pipes or drains or breakers may divert that flowed upon it prior to the changes the water from its natural water course referred to. Since then larger quantiand prevent it, for a time, from flowing ties of water flow upon it. This has not upon land where it would flow natur- only destroyed the growing crops, but ally does not deprive the township of washed a large gulch or ditch in it. the right subsequently to let the water

One witness, Frank Kop, a surveyor, flow back into its natural course. In 'describes in detail the natural confor

mation of the land along and adjacent clear in order to involve the Township to the road from the turnpike down to for which they act in damages.” plaintiff's house. He testified that none Defendant's counsel relies on the case of the water except that which gathers of Taylor v. Canton Township, 30 Sup. about thirty yards up from the plain-| 305, to show that our answer was errontiff's property flows in its natural course eous. In that case Judge Beaver said, upon his land, and that much water, But where public officers in the diswhich does not flow there in its natural charge of public duty act according to course, flows there since the road has their best judgment, the evidence of nebeen repaired.

glect or wrongdoing ought to be clear The plaintiff testified that water has which would involve the municipality been diverted from its natural course for which they act in damages.” That to and upon his property since the road case is entirely different from this one. was repaired. Harry Streaker said the There the question of the supervisors' land on the side of the road opposite the negligence, in wrongfully constructing plaintiff's property is naturally lower, a bridge across a public road for the and is the natural course of much of the purpose of getting rid of overflow water, water which now flows over the plain- was at issue. When the supervisors extiff's land. Augustus Hilton said that ercised their best judgment as to how it the "lay of the land pitches towards the should be done, the evidence should of other side ”, opposite plaintiff's land, and course be clear that they made a misthat much of the water would flow take or were negligent. This rule, hownaturally on that side of the road. John ever, does not apply where the question Lipp says that the natural condition of is whether water has been diverted from the land without regard to the road its natural course. That is not a queswould drain the water to the side op- tion of the exercise of judgment on the posite the plaintiff's land. George Yost part of supervisors. They have no power said both sides of the road are low, not to divert it from its natural course, so much difference, and that much of the that no question can arise whether they water would naturally drain away from exercised their discretion as to how to plaintiff's land. The jury viewed the do it, whether negligently or otherwise. premises, saw how the land lay and what No higher degree of proof, therfore, is the natural course of the water was. The required than is necessary in proving all testimony of some of these witnesses other facts. We, therefore, think that was weakened by cross examination and no error was committed in refusing to was contradicted by witnesses for the require the plaintiff to prove his case defendant. All that, however, was for by clear evidence. the jury's consideration.

The eighth, ninth, tenth and eleventh We cannot in view of all this testi- reasons complain that we erred in permony say that there was nothing to jus- mitting witnesses to testify to conditions tify the jury in their finding that the de- before and after the road was repaired. fendant did divert water from its na- There was much testimony showing tural course upon plaintiff's land. We, that the natural course of much of the therefore, dismiss the rule for judgment water was on the side of the road opnon obstante veredicto, and overrule the posite the plaintiff's land, and that prior first, second, third, fourth, sixth, seventh to the improvement of the road it flowed and twelfth reasons for a new trial. there. After these changes, which were

The fifth reason is as follows: The fully described, were made, it all, or Court erred in refusing to affirm defend- nearly all, flowed upon the plaintiff's ant's fifth point, which was as follows: land. Under these circumstances we do “If the supervisors of the defendant not see how the jury could have underTownship in the discharge of their pub- stood the effect of the changes if the lic duty acted according to their best witnesses had not been allowed to dejudgment in the construction of the road, scribe them before and after the road the evidence of neglect or wrongdoing was repaired. We discharge the rule on the part of the defendant must be for a new trial.

P. J.

Goll v. Denlinger et al.

| due, to April 1, 1910, to William T. Principal and agentScope of authority Brown, an attorney-at-law, who was the

of -Payments to attorney on account of

paid to Brown the following amounts mortgage.

on account of the principal of the mortWhere the owner of a property subject to gage, namely: On March 30, 1907, a mortgage pays to an attorney-at-law who $100.00; on September 28, 1907, $200.00; was attorney for the mortgagee interest for

on September 30, 1908, $300.00; and on five years, and three payments on account of

The three the principal two of which the mortgagee March 31, 1909, $500 00. receipts for on the record, and never dis- payments respectively, of $100.00, avowed the attorney's authority the mortgagee $200.00 and $300.00, were paid over by will be compelled to give credit for a subsequent payment on account of the principal Brown to Goll, and, as to the first two which the attorney failed to pay over to him. payments, Goll, on October 2, 1907, en

While one who transacts business with an tered in the Recorder's Office of this agent is bound to make inquiry as to the extent of his authority this may be shown received the next payment of $300.00

county a receipt for $300.00. While he by his course of dealing ratified by his principal.

from Brown, he entered no satisfaction

of record for it. The last payment of Rule for judgment n. 0. v. C. P. $500.00 was never handed over by Brown of Lancaster County, January Term to Goll, and it is concerning it that the 1914, No. 30.

present controversy arises. Brown, as H. B. Lutz and W. F. Beyer, for attorney for Goll, gave Hoeltzel receipts defendant and rule.

for all payments, principal and interest,

made by him on account of the mortgage. B. J. Vyers, contra.

Hoeltzel never saw the records in the January 9, 1915. Opinion by LANDIS, credit had not been given him on said

Recorder's Office, and did not know that

records, until after trouble arose with The facts arising in this case are not William T. Brown. The amount adopen to dispute. On March 29, 1905, mitted to be due by the defendant upon William T. Denlinger gave to William the mortgage is $400.00, with interest H. Goll, the plaintiff, a mortgage for from April 1, 1910. Upon the trial, we $9,000.00, on

on certain premises num- directed judgment to be entered in favor bered Nos. 562, 564, 566, 568, 570 and of the plaintiff for the amount which he 572 Freiberg Street, Lancaster City. alleged was due on the said mortgage, This mortgage is recorded in the Re- to wit, $1,147.00, and, in order to hear corder's Office of Lancaster County in the legal proposition fully discussed, Mortgage Book No. 104, at page 304, granted this rule for judgment non ob&c. On November 20, 1905, William stante veredicto. T. Denlinger, by deed of that date, con- It is a familiar principle that every veyed to John Hoeltzel the house and one who transacts business with an agent lot numbered No. 566 Freiberg Street. is bound to make inquiry and inform By an agreement dated November 16, himself as to the nature and extent of 1905, recorded in Mortgage Book No. his authority. He cannot plead ignor109, page 129, it had been agreed, be- ance or even misinformation by the agent tween William H. Goll and William T. himself. Zimmerman Floyd and Deniinger, that the amount due on each | Collins, 20 LANC. Law REVIEW, 17. As of the houses embraced in the said mort- was said, however, in Himes v. Herr, 3 gage should be $1.500.00. Therefore, Sup., 124, “the extent of an agent's when Hoeltzel received his conveyance, powers depends upon the authority unhe took it subject to a proportionate part der which he acts. This may be shown of the said mortgage, to wit, the sum by his written instructions or his course of $1,500.00

of dealing. It is true the public are not After John Hoeltzel obtained the title, always bound by the private instructions he paid the interest on the mortgage of of the agent, and may hold the principal $1,500.00, or on the balance remaining 'responsible, though the particular acts

V.

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