of Mrs. Ireland, but such fact must have been known to Donovan. He knew of the bill of sale; he fully understood its purpose; he knew of Ireland's absence from the country; and he must have known that what Mrs. Ireland was attempting to accomplish by the contract was the exclusion of her husband from all control over his own property. In this scheme the chancellor finds that Donovan was an active participant. It is enough to say that the evidence fully warrants the finding. The assignments of error are overruled.

[2] By paragraph 9 of the decree, the plaintiff, Howard I. Ireland, is authorized upon notice to call a meeting of the stockholders of the Ireland Advertising Agency, for the purpose of electing officers of the corporation, and the transaction of other corporate business. The decree without this feature provided full relief to the plaintiff. Its inclusion was not only not required for plaintiff's protection, but the authority of the court to make such order, as the case stood, may well be doubted. The decree calls for amendment in this particular, and the ninth paragraph of the decree is accordingly stricken therefrom. As so amended, the decree is affirmed, and appeal dismissed.

(232 Pa. 620)

HIGINBOTHAM v. PAUCH.

ally, it is possible that somebody may have to suffer and lose some money. It sometimes happens that two persons who are innocent have to suffer, or one or the other of those two. The rule of law is that, if two innocent persons must suffer, the one who is least to blame is the one that must suffer least. In this case, if you should find that there has been imposition and fraud practiced by some one, and that neither the plaintiff, Mr. Higinbotham, nor the defendant, Mrs. Pauch, was to blame, the burden is on you to determine which of them is the least to blame, and you should find your verdict accordingly; that is, if they are both innocent, and one or the other of them has to suffer. If this comes to be a consideration with you, it is your duty to take into account their respective positions, places of residence, and opportunities for acquainting themselves with the facts, and what was being actually done, and by whom. If the contention of Mrs. Pauch is correct that she was in or near Chicago, and knew absolutely nothing of what was going on in South Brownsville, she could not be held responsible for anything that might have happened in South Brownsville, and, having no opportunity to protect her interests, no blame could be imputed to her. If, however, you should find that Mr. Frank Pauch was acting as the agent of Mrs. Anna Pauch, and was looking after and attending to her affairs, and betrayed

In ejectment, where plaintiff claims under a deed purporting to have been signed by defendant, which she denies, and where the evidence shows that if a fraud was committed the only parties thereto were defendant's brother, since deceased, with whom defendant had left her deed, to enable him to collect rents for her, and a woman who represented herself as defendant, a charge that when one of two equally innocent parties must suffer by the fraud of another the loss should fall on the one whose negligent act or omission enabled the wrongdoer to commit the fraud is improper; there being no evidence of any agency, nor of any act or omission on defendant's part, enabling her brother to deceive plaintiff.

[Ed. Note.-For other cases, see Estoppel, Cent. Dig. § 310; Dec. Dig. § 120.*] 2. PRINCIPAL AND AGENT (§ 103*)-AUTHORITY OF AGENT-IMPLIED AUTHORITY.

That a sister left with her brother her deed, to enable him to collect rents, did not raise an implied agency in him to make sale of her real

estate.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. §§ 278-293, 353-359, 367; Dec. Dig. § 103.*]

extent of presuming to act for her. and imposed on Mr. Higinbotham, then there would be no blame attached to Mr. Higinbotham, if he used such care and caution as a reasonably prudent man would have used under the circumstances; if that comes to be a consideration with you, it will be your duty to determine which is the least to blame, and the one who is the least to blame would be the one who should suffer least.

"In this case, as in a great many other cases, there are conflicts in the testimony. and where there are conflicts in the testimony it is the duty of the jury to reconcile them, if they will admit of reconciliation; if they cannot be reconciled, and there are some conflicts in this testimony that cannot be reconciled, then the burden is cast upon the jury of determining who is testifying correctly or incorrectly, of who is mistaken, and who is not mistaken. In this case, either Mr. Brashear or Mr. Smith is mistaken; they cannot both be correct in their testimony

Pa.)

duty to determine which you think it is; and it is not only your right and your privilege, but your duty, to take into account the manner of the witnesses on the stand, any prejudice, malice, bias, or ill will that they or any of them may manifest in the giving of their testimony, any interest that they or any of them may have in the result of your verdict; also any corroboration that there may be of either of the witnesses whose testimony is being considered by other evidence, with the truth of which you are satisfied. In short, it is the duty of the jury to take into consideration any and everything that will aid or assist you in determining which is testifying correctly, and which incorrectly.

"Where there is such a conflict in the testimony as there is in this case, another consideration is the preponderance of credible testimony. Credible testimony, or the preponderance of credible testimony, is not always established by numbers. There might be a dozen people who testified to a condition on one side, and, if the jury were satisfied that none of them was worthy of belief, or that they were not credible witnesses, their testimony might be overcome by one man, whom you might be absolutely satisfied was credible, on the other side. This being a civil action, where there are questions of fact to be determined, and, as we have indicated, there is one important and prime question of fact for determination in this case; that is, whether or not Mrs. Anna Pauch signed this deed on December 18, 1905. If you find the preponderance of credible testimony to the effect that she did not sign it, you will return a verdict generally for the defendant; and if, on the other hand, you find the preponderance of credible testimony is on the side of the plaintiff, and you find that the defendant did sign and acknowledge this deed on December 18, 1905, you should return a verdict for the plaintiff for the premises described in the writ, together with 64 cents damages."

Argued before FELL, C. J., and BROWN, MESTREZAT, POTTER, and MOSCHZISKER, JJ.

W. J. Sturgis, E. H. Reppert, and S. J. Morrow, for appellant. D. W. McDonald, Frank P. Cottom, Harry A. Cottom, and James R. Cray, for appellee.

FELL, C. J. [1] This was an action of ejectment, in which the plaintiff claimed title by virtue of a deed, alleged to have been signed by the defendant. The defendant denied that she had signed the deed, and the clearly defined issue was whether it was a forgery. She was a single woman, whose residence was in Chicago. She purchased the property in question in 1903, and her deed for the same was duly recorded and left with her brother in Pennsylvania, and

719

he acted as her agent in collecting the rents and in looking after the property. In 1907 the plaintiff negotiated with the defendant's brother for the purchase of the property, and at the settlement a deed was signed and acknowledged by a woman, who was represented to be the defendant. At the same time, the woman executed a writing, directing the payment of the purchase money to the defendant's brother. At the signing and acknowledgment of the deed, four persons were present: The defendant's brother, who died before the trial, the woman who executed the deed, and the two subscribing witnesses, one of whom was the notary who took the acknowledgment. One of the subscribing witnesses testified at the trial that the defendant was the woman who signed; the other testified with equal positiveness that she was not. Corroborating circum. stances were shown on both sides, and it was evident that if a fraud had been committed, at the execution of the deed the only parties to it were the defendant's brother and the woman who signed the deed. It was said in the charge that, if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame, and that it was for the jury to determine which of the parties to the action was least to blame and to find a verdict accordingly. This was an inaccurate statement of the rule that, where one of two equally innocent parties must suffer loss, by reason of the fraud of another, the loss should fall upon him whose negligent act or omission has enabled the wrongdoer to commit the fraud, and it was a misapplication of the rule to the facts of the case.

[2] This was not a case of agency. There was not a pretense even that the defendant had authorized her brother to sell the property, and none could be implied from the fact that he held the deed and collected the rents. No act or omission on her part enabled him to deceive the plaintiff.

The first assignment of error is sustained, and the judgment is reversed, with a new venire.

(232 Pa. 600)

BOVAIRD v. CITY OF BRADFORD. (Supreme Court of Pennsylvania. July 6, 1911.)

1. MUNICIPAL CORPORATIONS (§ 165*) — OFFICERS-COMPENSATION-ACTIONS TO RECOV

ER.

In assumpsit by the treasurer of a city of the third class against the city for the salary of a clerk under a city ordinance giving the $720, which ordinance was repealed after the clerk to the city treasurer an annual salary of treasurer's election, the claim being based on Act May 23, 1889 (P. L. 277), providing that no ordinance shall be passed increasing or diminishing the salary of any officer after his election or appointment, a verdict is properly directed for defendant where no attempt was

made to show that any clerk was appointed by the treasurer or city council; testimony that a certain person had acted as clerk being entirely insufficient to raise an issue of fact. [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 373, 374; Dec. Dig. § 165.*]

ER.

The fact that a city treasurer's failure to appoint a clerk, as authorized by ordinance, cast upon the treasurer heavier burdens, did not authorize him to recover the salary of the clerk. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 373, 374; Dec. Dig.

§ 162.*]

Action in assumpsit by William Bovaird, Jr., against the City of Bradford for a clerk's salary. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before FELL, C. J., and BROWN, ELKIN, STEWART, and MOSCHZISKER, JJ.

Rufus B. Stone and James George, for appellant. F. P. Schoonmaker, for appellee.

STEWART, J. [1] The city of Bradford is a city of the third class. The act of assembly governing cities of this class creates the office of city treasurer, and provides that such officer "shall receive a fixed annual salary to be provided by ordinance." Act of May 23, 1889, art. 8, § 1 (P. L. 277), as amended by Act of May 16, 1901, § 23 (P. L. 224). The act makes no provision for the election, appointment, or employment of a clerk to the treasurer; but the city council, by ordinance approved March 19, 1902, directed "that the clerk to the city treasurer from and after the first Monday in April, 1902, shall receive an annual salary of $720, to be paid in monthly installments in the same manner that the salaries of other city officials are now paid." At a municipal election in 1905 appellant was elected to the office of city treasurer, for the term of three years beginning the first Monday in April, 1905. He duly qualified and served out his term. Immediately preceding his entry into office, the city councils by ordinance approved March 10, 1905, repealed the ordinance of March 19, 1902, providing a salary for the clerk to the treasurer. Appellant brought this action to recover from the city the sum of $2.349, which he claimed as clerical hire accruing under the ordinance of March 19, 1902, which was in force at the time of his election, basing his claim on the prohibition contained in the Act of May 23, 1889 (P. L. 277) par. 13, § 3, art. 5, which directs that "no ordinance shall be passed increasing or diminishing the salary or compensation of any officer after his election or appointment"; his contention being that the effect of the repealing ordinance was to diminish the salary or compensation of city

appointment; that on April 3, 1905, the said Clinton J. Boyd entered upon his duties as said clerk to the city treasurer, which position he held and which duties he performed until April 6, 1908, the end of plaintiff's term of office as said city treasurer, and of said Boyd's appointment. said Boyd's appointment. Under this state of facts, what possible right of action was in the plaintiff? The suit was for salary; but the salary was payable to the clerk, and to him alone. The plea of nonassumpsit put the plaintiff to his proofs. And here he wholly failed. He did not attempt to prove that any clerk had been appointed by himHis effort to self or by the city councils. prove that Boyd had acted as clerk was too It was feeble to raise an issue of fact. confined to the testimony of a single witness, whose testimony was as follows: "I did understand that there was a man in the city treasurer's office, but just what position he occupied relative to the city treasurer I don't know. He was performing duties, he and the treasurer together were performing the duties of the office. His name was C. J. Boyd." Not a particle of testimony beyond this was offered to show that a clerk had served at any time or for any period. Its insufficiency for the purpose is too obvious to call for discussion. If no clerk was appointed, and none served, no salary accrued.

[2] If by reason of failure to appoint heav ier duties were cast upon the treasurer which he performed, such fact, under no conditions, would give the treasurer any right to the salary of the clerk. The increased labor would not be in diminution of his own salary. It is universally recognized that a change in the duties of an office during the term of the incumbent does not affect the compensation. See the authorities cited in 29 Cyc. 1424. "It is well it should be distinctly understood," said Paxson, C. J., in Pierie v. Phila., 139 Pa. 573, 21 Atl. 90, "that county officers whose salaries have been fix. ed by the Act of March 31, 1876 (P. L. 13), have no right to extra charges for services pertaining to their offices and which have been cast upon them by law." Verdict was properly directed for the defendant. The judgment is affirmed.