This clogged condition caused the water ence of the disputed facts on which the plainin the permanent drain to back up and pass tiff's right to recover depended it should out between its upper end and the funnel, have been, according to well settled rule, which joint was so close to the floor that the submitted to the jury. The plaintiff is enleak was scarcely perceptible. There was titled to the benefit of every inference of no evidence of the over-flow on the kitch-fact which might have been fairly drawn by enette floor. The escaping water then trickled down along the outer surface of the pipe through the opening in the wooden floor, only the edges of which were made moist thereby, until it reached an angle in the pipe, over the ceiling of Miss Yost's closet, where it dropped and did the damage of which she complained. As stated, the defendant did not have access to the locked closet. When the plaintiff returned there was no water on the floor of her room outside the closet door and it was not until 3 or 4 days afterwards that she first discovered the injury done her. She knew that the kitchenette and drain pipe were over the closet. the jury from the evidence before them: Bellman, appellant v. P. & A. Valley Ry. Co., 31 Pa. Supt. Ct. 389 and cases cited; but negligence, to be actionable, must be at least the breach of a legal duty: Phillip v. Craft, 139 Pa. 125; i. e., a breach of duty owed to the plaintiff; Fleming v. Phila. Co., appellant 234 Pa. 74, 77; Dialesantro v. Phila. Co., appellant, 47 Pa. Sup. Ct. 339, 341. It seems, therefore, that the first thing to determine, in a proper disposition of the motion now before us, is the relationship that existed between the parties under the disputed facts. Was such relationship that of inn-keeper and guest, boarding-house-keeper and boarder, or landlord and tenant? Mr. Scheibley, a hotel man of about 20 years' experience, had never before had a A guest is a traveler or transient comer similar experiene and did not know of the who puts up at an inn for a lawful purpose clogged condition of the pipe until the ac- to receive its customary lodging and entercident had occurred, but did know that tainment: DeLapp v. Van Closter, 118 S. "waste pipes under refrigerators would clog W. 120; 2 Words & Phrases 809; 2 Bouas a general proposition." vier's Law Dict. 1397. "The lexicographThere was no testimony, whatever, to ers define the word 'guest,' when used in show that during the six or more months the sense to which we are now referring, as preceding the accident, during which time a lodger or boarder at a hotel, lodging the apartments above had been occupied by house, or boarding house;" Hirsh v. Anderthe same tenants, the drain had ever over-son Hotel Co., appellant, 58 Pa. Sup. Ct. flowed; when it had last been cleaned out, 387, 395. or flushed with scalding water, if such had A "boarder" is one who makes a special been done at all; when, it had been ever, or contract with another person for food, with last, inspected by the defendant; that the or without lodging: Berkshire Woolen Co. v. plumbing above was not in safe condition Proctor, 7 Cush. (Mass.) 424; 1 Bouvier's when possession of the house-keeping apart-Law Dict. 373; 3 Corpus Juris 1131, ments was delivered to Miller, the tenant 1132; Lawrence v. Howard, 1 Utah 142; thereof; that the defendant, thereafter, ex- and is to be distinguished from the guest of ercised any control or supervision over that an inn-keeper: ibid. See, generally, 14 L. plumbing; that the defendant, for any pur- R. A. (N. S.) 476. pose, had access to the Miller apartments; The testimony does not show whether or the terms of the defendant's contracts the monthly rental of $20, which the plainwith either the plaintiff or the tenant above. tiff said she paid for her "room," did or did The ground of recovery, as set forth in not include her table-board when she was at the statement, being the alleged negligence home. It does, however, clearly indicate of the defendant, the trial judge, under the that she "rented her apartment on one room above facts, entered a compulsory non-suit and a bath for $20 a month" and that she which we are now moved to take off. had occupied it for 7 or 8 years as her "home." More mature reflection than was possible at the trial now but confirms our opinion that the plaintiff is not entitled to recover. We are aware that if there was any evidence which alone would justify an infer The defendant had no access whetever, at any time, to the closet and could only enter the remainder of her apartment_for the purpose of keeping it in order. The house itself was an "apartment house," containing at least two house-keeping apartments which were rented to other tenants. Mr. existed and the defendant owed the plaintiff the legal duty of exercising ordinary care, what negligent act, on its part, of either We therefore concluded at the trial, and omission or commission, was shown by, or are still of the same opinion that, under may fairly be inferred from, the testimony? these facts, the relation of landlord and ten-Negligence, like any other fact, must be ant, and not that of either inn-keeper and proved and is not to be presumed. guest or boarding-house-keeper and boarder, existed between the parties at the time of the injury complained of, as it did between the defendant and Miller, the upper tenant. The terms of the contract being fixed, their legal import was for the Court to declare: Bowman v. Bradley, appellant, 151 Pa. 351, 359. If our conclusion was, and is, correct then it follows that the defendant is not liable for Miller's negligence, if there were any such. As regards the liability of landlords to third persons, it may be stated as a general rule that the tenant and not the landlord is liable to third persons for accidents and injury occasioned to them by the premises being in dangerous condition and the only exceptions to this rule appears to arise where the landlord has either (1) contracted with the tenant to repair, or (2) when he has let the premises in a ruinous condition, or (3) when he has expressly requested the tenant to do things amounting to a nuisance: Cunningham v. Rodgers, 225 Pa. 132; Levick, appellant v. J. A. Patterson Co., 65 Pa. Sup. Ct. 261. Scheibley, it is true, knew, as should every one, that waste pipes under refrigerators would, as a general proposition, clog. But the Millers had used this pipe for over six months. It had never caused trouble before. It was not shown when it had been last inspected or cleaned out. Such might have been done so recently as the day before the accident. The defendant had the right to assume that the Millers would make proper use of the appliances furnished them. They were in good condition when furnished and continued in that condition down to the time of the accident. To fasten responsibility upon the defendant, under the facts of this case, would make the ownership of office buildings, apartment houses, tenement-houses, and other structures, which are necessarily occupied by two or more separate tenants, a very hazardous undertaking. under the law, as we understand it, are not Such owners should not be required, and required to insure their tenants against the negligent acts of their co-tenants. Certainly not against any such that are not fairly and reasonably to be anticipated, or of which they have had no notice. We, therefore, conclude that, if the relationship existing at the time of the accident between the parties was that of landlord and tenant, as we find to have been the case, then, under the facts, the defendant owed There appears to be no reported Pennsyl-reasonably vania case similar in its facts to that before us. The subject is treated at some length, however, in a note to be found in 12 L. R. A. (N. Š.) 1025. There is to be found commented upon the leading case of Leonard v. Gunther, 62 N. Y. supp. 99, which was mentioned by the trial judge when the nonsuit was entered, that it is now sought to have taken off, and which decided that: "If the dangerous condition is created by the tenant in occupation by misfeasance or nonfeasance, or a fixture not dangerous per se is, by the act of omission of the tenant, turned into a nuisance on the premises demised, the landlord is not liable for damages resulting. The injury in such case has for its proximate cause the failure of duty on the part of the tenant; it is his misfeasance or non-feasance, and not that of the landlord." See, also, Becker v. Bullowa, 73 N. Y. no legal duty in the premises to the plaintiff and, should that relationship have been that of boarding-house keeper and boarder in which contingency the rule of ordinary care would have applied, neither the facts nor the inferences which could properly and fairly have been drawn from those facts, showed any negligence on the part of the defendant. In the cases of Killion v. Power, 51 Pa. 429 and Levinson v. Myers, 24 Pa. Sup. Ct. 481, the defendant landlords were in possession of and control over the upper apartments. Under our facts they can have no application. The motion to take off the non-suit is lation of boarding-house-keeper and boarder over-ruled. C. P. of Schuylkill Co. W. G. Thomas, Esq., of Lansford, drew up the agreement between the parties. Fifty dollars had been paid down in the begin Moskovitz v. Katsuch. Judgment by Confession-Opening-Agen-ning and later $1000. When the license cy. was transferred, the defendant paid to Sofsky $6000 more and Morris Moskovitz paid to Sotsky $150.00 for Katzuch, thus making the sum of $7200 paid to Sofsky. Morris Moskovitz had prepared the note in question and got the defendant to sign it. The amount of the note was intended to cover the eight hundred dollars commission which Moskovitz was to receive from Sofsky and the one hundred and fifty dollars which Moskovitz paid to Sofsky as already stated. The mistake in making the note $1000.00 was, discovered before execution November 5, 1917. KOCH, J.-Judg-was issued in this case, and consequently ment was entered for the sum of one thous-execution was issued for $950.00, instead of and ($1000.00) dollars in the above case $1000.00, or the face of the note. upon a bill single dated the 17th day of The defendant can neither read nor write. October, 1916, waiving inquisition and ex-When the writ of fi. fa. was served upon emption. A writ of fieri facias having been him, he filed his petition for this rule averrissued to collect the sum of nine hundred ing that the note for $1000.00 had been and fifty (950.00) dollars, the defendant fraudulently obtained. He did not deny filed his petition to have the said judgment the signature on the note, but averred that opened, and, the rule having been granted, it was to secure the sum of $150.00 and not testimony was taken for both parties to the action. Since the testimony was taken, the defendant has filed a supplementary petition to open the judgment. The later petition, in its statement of facts, conforms more nearly than the first with the evidence taken in support of the rule to open the judgment. The plaintiff lives in Wilkes-Barre, and the defendant in Lansford, Carbon County. Plaintiff is a wholesale liquor dealer and defendant conducts a saloon. They have known each other for about ten years. According to the testimony which was submitted in this case, it appears that the note in question was made under the following circumstances: Aaron Moskovitz, a brother of the plaintiff, on the 20th day of September, 1916, entered into an agreement with Peter Sofsky, of the Borough of Lansford, to procure a customer for the purchase of the latter's saloon business, on a commission basis of 10 per cent. $1000.00, and that he had been fraudulently induced to put his mark to the note for $1000.00. When the testimony was taken, the defendant claimed that he had been induced by Morris Moskovitz to buy this place; that Morris Moskovitz told him that he did not want to make anything out of it himself but that he wanted the defendant to continue as one of his customers when he acquired the saloon. The defendant claimed that the plaintiff acted as his agent in the purchase of this saloon. There can be no doubt about the plaintiff acting as the agent for Sofsky and that he and his brother got Katzuch to buy the place. He admits that he was acting for both. He corresponded with Sofsky and on the 27th of September, 1916, received a letter from him to bring the party to Lansford. The following appears from the testimony of Morris Moskovitz: "Q. You were acting for Mr. Katzuch then in the matter? A. Well, I was acting for both of them. Q. You were acting for both of them? A. I was acting for Mr. Katzuch and Mr. Sofsky both.” Aaron Moskovitz testified that he obtained the agreement for his brother, Morris. Aaron met the defendant in Pottsville and they together went to Lansford to look at the property. Several days later, the two Moskovitz's and the defendant went to Lansford and the terms of the sale were agreed upon at $8000. Sofsky's attorney, mony: Aaron Moskovitz also testified that Morris was acting for both. The following appears from his testi "Q. For whom were you acting? A. Morris Moskovitz. C. P of Northampton Co Macan v. Scandinavia Belting Co. Q. Who was Morris Moskovitz acting Foreign Attachment-Motion to Quashfor in the transfer? A. For both. We drew both parties. together. Reduction of Bail. In jurisdictions where appearances de bene esse are abolished by rule of court, the defendant cannot, without a general appearance, be heard to Q. Did either you or Morris in your object to the cause of action stated; but may appresence, at any time, make known to Kat-pear specially to challenge a jurisdictional fact, zuch that he was receiving this sum of $800 commission. W. G. Thomas, Esq., testified that Morris Moskovitz was acting for Katzuch when in his office. The second petition which was filed is based upon the dual capacity in which the plaintiff acted. The defendant contends that in as much as Moskovitz could not, in an action at law, collect from Sofsky the commission agreed upon, Moskovitz cannot collect from him, the defendant, the amount of the commission which is included in the said judgment note. He cannot serve two masters. He cannot be the agent of the seller and at the same time the agent of the buyer. This is against public policy and is not contenanced in the law, except in cases where the dual attitude of the agent is clearly and fully known to both the seller and the buyer and both consent thereto, and where the agent acts for both, without the knowledge of such fact by both, he is not entitled to recover compensation from either; Wilkinson v. McCollough, 169 Pa. 205; Addison v. Wanamaker, 185 Pa. 536; Cannell v. Smith, 142 Pa. 24; Rice v. Smith, 136 Pa. 439; Railroad Company v. Flannigan, 112 Pa. 558; Everhart v. Searle, 71 Pa. 256; Mitchell v. Schreiner, 43 Superior Court 633; Eightcap v. Nicola, 34 Superior Court 189; Marshall v. Reed, 32 Superior Court 60; Evans v. Rockett, 32 Superior Court 365; Fulton v. Walters, 28 Superior Court 269; Linderman v. McKenna, 20 Superior Court 409. by deposition or proof dehors the record. Bail demanded by the plaintiff in foreign attachment will not be reduced upon a motion to quash. That question can only be considered upon a rule to show cause why bail should not be reduced. Motion to quash writ of foreign attach ment. Motion denied. Aaron Goldsmith and W. S. Kirkpatrick for plaintiff. F. W. Edgar and R. A. Stotz for the defendant. June 25, 1917. STEWART, P. J.-On the 24th day of May last, Geo. C. Macan, Jr., issued a writ of foreign attachment against the Scandinavia Belting Company, based upon a contract in writing, attached to his affidavit, and alleging a breach thereof, and claiming damages therefor, and summoning the Macan Jr. Company as garnishee. On the 11th day of June, 1917, "the Scandinavia Belting Company, defendant named, by Robert A. Stotz and F. W. Edgar, its attorneys, without causing its appearance to be entered, moves the court to dissolve the attachment for the following. reasons, viz:" Then follow six reasons to the effect that the statement and affidavit do not disclose a good cause of action; that the contract does not disclose any criterion by which the damages may be estimated; that the damages are so speculative in character that they cannot be determined; that it appeared that the said George C. Macan, Jr. had presented a petition to stay two executions issued by the Scandinavia Company against the Macan Company; and that George C. Macan, Jr., was really the same as the Macan Jr. Company; and that this The plaintiff could not recover from attachment was not issued for the benefit of Sofsky were he to sue him for the commis- the plaintiff, but for the benefit of the garsion of $800.00 nor should he be permitted nishee; that George C. Macan, Jr.,is stopped to take advantage of his own wrong and by the pleadings and testimony which he recover the amount from the defendant in gave in two suits brought by the Scandithis case. navia Company against the Macan ComThe rule is made absolute and the judg-pany, wherein the Mecan Company had set ment is opened to permit the defendant to up as a defense the breach of the same condefend. tract as that in suit; and that the verdicts in those cases were in favor of the Scandi- George C. Macan, Jr.,is the plaintiff. We navia Company; and that the said Macan, cannot consider the case as if he was identiJr.,had caused these attachments to be issued cal with the Macan Jr. Company, nor can for the mere purpose of delaying the pay- we look into the pleadings or the record of ment of the above judgments. We have the other cases, or to the motives with which examined the affidavit and statement, and this case was commenced. The only relano objection can be taken to them. It was tion those cases have to the present case is in decided by Judge Elkin in Commonwealth | just such matters as referred to above in the to use v. Bixter & Co., 235 Pa. St. 179, reduction of bail, which depend on our disthat a foreign attachment would lie in a cretion. This motion must be dismissed case like the present. An obliging legisla because the reasons do not set up such matture, by the Act of June 21, 1911, P. L. ters as can properly be considered by the 1097, affirmed that decision. The contract court. Our learned predecessor, President in suit is very familiar to us. In our charge Judge Scott, in Clement & Co. v. Didier to the jury in the two cases, Nos. 86 and 87 March Co., 13 Northampton Co. Rep. 293. January Term, 1916, which cases were has so well stated the rule that no further affirmed by the Supreme Court, although at citations are necessary. The syllabus of this writing we do not know whether what that case is: "In jurisdictions where appearwe said on the subject of damages was as- ances de bene esse are abolished by rule of signed for error or not, we said: "Now, court, the defendant cannot, without a genthey claim profits. Profits are not to be ex-eral appearance, be heard to object to the cluded in your consideration of this case cause of action stated, which is the approsimply because they are profits. There is priate subject of demurrer; but may ap no rule of law that there is any such require- pear specially to challenge a jurisdictional ment at that. They are not to be consid- fact, by deposition or proof dehors the ered if they are speculative. They are not record." That case was affirmed by the to be considered unless you believe that these Supreme Court, and the ruling made above profits were necessarily in the contemplation was not questioned: 244 Pa. St. 616. of the parties, and unless you believe that Counter affidavits tending to set up a dethese profits would have been reasonably fense to the action, are never to be read or made if the contract had not been termina- considered. As President Judge Johnson ted, and you must consider them as of the of Delaware County, said in Gray, Assignee time when the contract was broken." (Page v. Hanf Optical Co., 8 Delaware Co. Rep. 35). Then on the following pages we ex- 255: "If the writ is regular and the deplained more fully the subject. Parentheti-fendant a non-resident, and not within the cally we may say that having this in mind, we suggested after the argument, to the learned counsel for the plaintiff in the attachment, that in our judgment the bail demanded was too high and should be reduecd in accordance with the request made by the learned counsel for the defendant upon the argument, but counsel for the plaintiff insisted that it was irregular, to do it upon consideration of the present motion. That position is correct, but in view of our knowledge of this case, we should confine the taking of any testimony, or any argument to the narrowest limits if an application was made to reduce the bail. Although the learned counsel for the defendant have cited Sales Service Co. of Pa. v. Mutual Orange Distributors, 63 Pittsburgh Leg. Journa 719, we cannot make the order that they ask for as the matter is not properly before us. The matters set forth in the other reasons cannot be considered from any point of view. The record shows that county when issued, if he acts at all, he has one of two courses to pursue. He may enter bail and have the attachment diss lv.d, or he may enter an appearance and make defense without entering bail, in which case the attachment will continue." Motion of the defendant to dissolve attachment is denied. C. P. of Luzerne Co. Confer v. Smith. A statement that is not divided into paragraphs, as required by the Act of May 14, 1915, P. L. 483, will be stricken from the record in that it does not comply with the Practice Act. Motion to strike off pleading. |