provide for assessments for special benefits hibition contained in Art. 9, Sec. 1, of the in local improvements is too well settled to constitution; Anderson v. Lower Merion require discussion. It was held in Scranton Township, 217 Pa. 369. The reason for v. Bush, 160 Pa. 499, that under the Act of this rule is obvious. The location of the 1889 the city might use either plan of pay- population, the use made of the streets, and ment; when the municipality adopted one many other considerations enter into the system of payment for certain streets it was question of how the payment of the improvenot prohibited from adopting another system ment shall be made. This must be deterfor different streets. We find nothing in mined by the local government and courts the Act of 1913 which by any reasonable should not interfere unless a palpable injustconstruction changes the law as it then ice warranted it. And while the special existed. The Act does not attempt to re-benefit to the abutting owner may be the strict the power of the city to determine the limit of the taxing power, in determining various methods of payment that should his liability as it is affected by the action apply to its streets. The city does not ex- of the city in paving other streets at the haust its power when a particular means of city's sole cost, there is a presumption that payment is used for certain streets. The in apportioning the cost through a general means of payment is wholly within the dis- system of taxation, the complaining owner, cretionary power of the city's law making in common with all others, derives a benefit. body. It cannot legislate so as to deprive When a street or part thereof is selected to itself or future councils of the corporate be improved within the discretion of the authority granted by the legislature to enact legislative branch of the city's government, measures for the benefit of the municipality, and contribution toward the cost be equally the levying of taxes, or the improvement of distributed within that street, it meets not other streets as their judgment dictates. The only the equities of the case but any constiauthority is exhausted as council legislates tutional prohibition. The principle containfor and improves designated streets. Over ed in White v. Meadvile, 177 Pa. 643, has, those not improved as permanent highways, therefore, no application. the control of council is complete. We would not assert that a gross abuse of discretion might not be perpetrated in determining what streets or parts of streets should be paved wholly at the city's expense and what streets should be paved at the expense of the abutting owner. This record does not show any discrimination and if it did and it were of such character that a court could interfere, the complaining parties. Section 4 of the Act of 1901, P. L. 364, should have moved to determine that ques- as amended by Section 2 of the Act of 1903, tion before the city had caused a large ex- P. L. 42, requires, where the contractor perpenditure of money to be made on the faith forming the work is to be paid by assessment of the ordinances providing for the improve- bills, the lien to be filed to his use; by ment. One cannot stand idly by until the Section 9, one month's notice must be given streets are paved and then assert that there to the owner of the property affected before has been a gross abuse of discretion. A the claim is filed. Improvement bonds in certain amount of discrimination is bound the usual form were issued, which contained to appear in the determination of all taxing a clause that the "bonds shall rest alone and local improvement problems; and though upon and be payable out of said assessments the city may cause certain streets to be paved and from no other fund." The contractor entirely at the public expense, and other accepted these bonds as payment. This lien streets by the foot front rule, and thereby was filed by the city and no notice of intencompel the abutting owner to contribute, tion to file was given. We do not regard through taxation, to the payment of the the means of payment as being a mere subformer paving, this circumstance would not terfuge to evade giving notice, nor do we amount to such an abuse of discretion as to regard the transaction as being equivalent to render the act of council void, nor would an equitable assignment of the assessment the possibility of such contingency arising | bills to the contractor. It was, therefore, impale this section of the act on the pro- not necessary to file the claim to the use of We are not convinced that this Act of Assembly as a whole is unconstitutional, being in violation of Article 3, which provides that no bill, except general appropriation bills, shall be passed containing more than one subject. We have frequently discussed titles to Acts of Assembly as bearing on this article of the constitution, and need make no extended reference to them. Detendant tendered a check for the tobacco ac cepted, but wrote thereon "in full to date." HELD, that whether the tender was sufficient to free the defendant from interest depended upon whether it was for all that was due. the contractor or to give notice. It is true Appeal from the Court of Common Pleas of York County. The facts of the case are given in the The opinion of the Court below, WAN city. These questions only serve to empha-NER, P. J., was as follows: size the fact that the claims were solely and exclusively within the city's control, and the dict was against the evidence and that the The usual general reasons that the vercontractor could exercise no act of owner; Court erred in its answers to points, were ship over them. The contractor was paid by the bonds, not by the assessment bills; file more specific reasons after the stenogoriginally filed in this case, with leave to see Gable v. Altoona, 200 Pa. 15; Dime Dep. & Dis. Bank of Scranton v. Scranton, 208 rapher's transcript should be filed. Pa. 383, O'Hara v. Scranton, 205 Pa. 142. Those additional and more specific reasWhen the cost and expenses are assessed ons refer to designated portions of the eviagainst abutting owners, there must be an dence alleged to have been erroneously ruled equitable reduction for the frontage of lots upon by the Court, and to several extracts which, from "their peculiar or pointed shape, from the Court's general charge. We have an assessment for full frontage would be in- examined the references to the testimony in equitable;" see Section 10 of the Act of the transcript as to which the Court's rul1913. The ordinances authorizing the im-ings are excepted to, and have found no provements need not contain the clause of such error in any instance as could have the Act relating to this question. No uni- affected the verdict of the jury, or as would form rule can be laid down that would in any view of the case, entitle plaintiff to apply equitably to all odd-shaped lots. The a new trial. Act must be followed when the assessment is made, and if it is not complied with, the owner does not lose his right to contest the amount of the assessments. The affidavit of defense nowhere contends that the amount of the lien is unjust by reason of the city's failure to make due allowance for a peculiar shaped lot in accordance with the Act. The assignments of error are overruled and the judgment is affirmed. The rulings in most instances were so obviously based on well settled general principles that they require no citation of author ities to sustain them. The exceptions to the Court's instructions on the sufficiency of the defendants' tender of a check in payment of the amount due, is perhaps not material now, in view of the general verdict rendered by the jury for defendant. The authorities, however, bear out the instructions of the Court that where the Hoffman Leaf Tobacco Co.'s Appeal. objection is not made to the offer of a check [HOFFMAN LEAF TOBACCO Co. v. ADAIR ET AL.] instead of money, but only to the amount of the check, that the tender is good and Contract Partial Acceptance of Goods-sufficient, if the amount of the check really Conditional Tender. Defendant agreed to purchase all the "Ohio warehouse leaves" plaintiff had in stock. Plaintiff shipped three carloads, one of which defendant refused to receive, because it contained also some other tobacco. On the trial of the case the Court below, (WANNER, J.,) charged that "the defendant was not obliged to receive and pay for a car containing tobacco other than" that purchased. HELD, to have been error. Defendants did not buy by the carload, but by the pound, and could not refuse the whole carload See covered the whole indebtednesss at the time; This case was submitted without oral argument, and we find no authorities in the briefs of counsel showing any error in the Court's answers to points submitted, or in its general charge. The motions for a new trial and for judg because part of it did not come up to the standard.ment non obstante veredicto in favor of the plaintiff in this case, are both refused and overruled. From the judgment there entered this appeal was taken. Cochran, Williams & Kain for appell ant. Niles & Neff and A. W. Herrman for appellee. The jury found a verdict for the defendants upon which judgment was entered and plaintiff appealed. Both parties agree that the contract was for the purchase of all the "Ohio warehouse leaves" plaintiff had in stock. This being so, the contract was entire as to any warehouse leaves furnished by plaintiff to de fendants. They were bound to accept all July 13, 1917. WILLIAMS, J.-This the Ohio warehouse leaves delivered and was an action of assumpsit to recover the the evidence is that they refused to accept sale price of tobacco furnished to defendants at least twenty-seven cases. It was, thereby plaintiff. fore, error to affirm the defendants' first Plaintiff's agent testified that on Novem-point without this qualification. This was ber 29, 1912, defendants agreed to purchase not cured by leaving the other questions in all the "Ohio low grades" plaintiff had in dispute to the jury. Defendants did not stock at four cents a pound. Plaintiff con- buy by the carload, but by the pound, and firmed the alleged order as follows: "We could not refuse the whole carload because. duly received your order through our Mr. part of it did not come up to the standard. Roath for all our Ohio warehouse leaves at They were compelled under the admitted 4 cents a ct.wt. net cash f.o.b. Ohio to be contract to accept all the warehouse leaves shipped at once. Same was accepted and delivered to them by the seller if they "were the tobacco ordered shipped." Plaintiff merchantable under the denomination afshipped two carloads of what he called fixed"; Jennings v. Gratz, 3 Rawle (*168) "Ohio low grade" from Ohio, and one car 167. As Coulter, J., said in Fraley v. Bisfrom Indiana. Defendants accepted the pham, 10 Pa. 320, 325: "The sale by bill two from Ohio but refused the one from of parcels, with which perhaps the sample Indiana, claiming that it was not what they corresponded, was of sweet-scented Kentucky had agreed to purchase.. They paid $76.75 freight on the car refused. Plaintiff would not receive the returned car and it does not appear what became of it. leaf tobacco.. It is not pretended that the article delivered was not tobacco, nor that it was anything else than Kentucky leaf tobacco. It was in specie Kentucky loaf tobacco, in kind the same as the article sold. *** And in such cases * * * there being neither express warranty nor imputed fraud, the risk falls on the buyer." Defendants' witnesses testified that the contract was to purchase all the "Ohio warehouse leaves" plaintiff had, and not all the "Ohio low grades". and that there was a substantial difference between the two; that in the car refused there were approximately Defendants, in their affidavit, admit liabili thirty cases of "Warehouse leaves" out of ty for $1,496.56, the value of the two cars. sixty cases. According to plaintiff's witness accepted, less $76.75, freight charges paid the car contained twenty-seven cases of "leaves" and the balance, other kinds of "Ohio low grades." on the car refused; and paid to plaintiff by stipulation $1,419.81, plus costs $14.75, which did not include interest on the amount tobacco refused. At the request of the defendants the court admitted to be due, nor the item of freight charged, inter alia: "The contract upon charges claimed as a setoff. This was done which this action is founded is not for the with leave to plaintiff to proceed for the repurchase of three carloads of tobacco or for mainder of his claim, viz: the item not any fixed quantity of tobacco by the defend-covered by the payment and the price of the ant from the plaintiff. It was the purchase of all the Ohio Warehouse Leaves which the plaintiff had at the time of the contract. The defendant was not obliged to receive and pay for a car containing tobacco other than Ohio Warehouse Leaves."*. Appellant has assigned this as error. *This constituted defendants' first point. Defendants, before suit, sent a check to plaintiff in payment for the tobacco accepted, containing the statement, "in full to date." This plaintiff refused because it was not "in full to date." The court below charged that this was a sufficient tender to free the Idefendants from liability for interest on the The ordinance was too remote from the time when the work was done to be any evidence of intention as applied to this particular street. Defendant offered the report of the borough engineer, showing what streets had been "paved with macadam," which offer was rejected. HELD, not to be error. The report of the borough engineer was not approved by council. It would not have been evidence of municipal intention if it had been, as there is nothing to show that council knew what sort of construction was embodied under the term The annexing of a condition without right to an offer of payment will prevent it from being a valid tender; Forest Oil Co.'s Appeal, 118 Pa. 138, 145. See also Persh-macadam." ing v. Fernberg, 203 Pa. 144. Whether the tender was sufficient would depend largely upon whether it was all that was due, and this, with the claim for freight, must await a retrial of the case. The judgment is reversed and a venire facias de novo awarded. Defendant offered to prove by the testimony of the street commissioner that he was acquainted with the methods employed by plaintiff city in changing an ordinary dirt street to a permanent street, which offer was rejected by the court. HELD, not to be error. The "change" called for is expressive of the municipal intention and such intention must be established by evidence apart from the work done. Defendant offered an ordinance of plaintiff city regarding digging of ditches in macadamized streets, to show intent. The offer was rejected. HELD, not to be error. +"As to the tender, which has been testified to The Act of 1901 does not require the lien to set out at length the Acts and ordinances under which the work was done. If the authority to do the work does not exist, it must be set up in the affidavit of defense or questioned in other appropriate remedies. Eyster's Appeal, 31 YORK LEGAL RECORD 45, followed, No. 27 March Term, 1917. Appeal from the judgment of the Court of Common Pleas of York County, Pa. For the opinion of the court below, Ross, J., on a motion to strike off the municipal lien, see City of York v. Holtzapple, 29 YORK LEGAL RECORD 134. At the trial of the case, the court gave binding instructions for the plaintiff. A motion for judgment for the defendant n. o. v. was overruled; City of York v. Holtzapple, 30 YORK LEGAL RECORD 173. From the judgment there entered this appeal was taken. James G. Giessner and Cochran, Williams John L. Rouse and Niles & Neff for appellee. July 13, 1917. KEPHART, J.-We have frequently stated the rule that will relieve abutting property owners from liability for subsequent street improvements. It is unnecessary to repeat it; Philadelphia v. Kerchner, 62 Pa. Superior Ct. 565; Pottswe instruct you that, in form the tender as made, ville v. Jones, 63 Pa. Superior Ct. 180; was sufficient. The check of the defendant was Easton City v. Hughes, not yet reported. only refused because it was insufficient in amount, The work claimed as an original paving to cover the whole of the plaintiff's claim. The check cannot, therefore, be rejected as a tender, un- was done in 1874, under the authority of less it was not for the money then due in full. council. It consisted of spreading limestone On the witness stand the plaintiff said he would ballast evenly over the roadway, converted have accepted the check, if it had been large into a hard surface by the passing traffic, enough to cover his claim. He did not object to the check not being good, but to it not being sufficient in amount. So we say to you, that if the defendant's check and the money already paid by him at the time when the check was tendered, was sufficient to cover everything due to the plain tiff, including interest, then the plaintiff can recover no more." and kept in repair by placing loose stones in the holes or ruts. Without other evidences of intention, this would not be such paving as would exempt the abutting owner from liability for future improvements; Harrisburg v. Funk, 300 Pa. 348. Evidence of the same character of work done on other council clearly expressive of an intention to streets would not supply such intention. adopt it as such. Indeed it could scarcely be considered as The report of the borough engineer was being more than repairs done to an ordinary not approved by council. It would not dirt road, where the traffic is heavy. "While have been evidence of municipal intention if due effect must be given to the character of it had been, as there is nothing to show that the work done in determining municipal in-council knew what sort of construction was tention, when that work is macadamizing, embodied under the term "macadam." This without other ample evidence, it will not be report was made in 1893-twenty-three years sufficient to show municipal intention. There after the work here claimed as a permanent must be additional evidence of this fact;" improvement was done. The ordinance of Easton City v. Hughes, supra. 1900 was a mere police regulation affecting ali highways without regard to the character of streets. Considering the report of the engineer, the ordinance of 1906, and the testimony as to the manner in which other highways have been constructed, these offers, with the other evidence, would fall far short Describing the work as macadam by witnesses or in reports, furnishes no information as to the manner of construction and the materials entering into its construction. A witness cannot testify that certain methods of construction were employed to change an ordinary dirt street to a permanently im- of showing an intentention to adopt the conproved highway. This calls for a conclusion. struction of 1874 as a permanent improveThe "change" called for is expressive of the municipal intention and such intention must be established by evidence apart from the showing municipal intention (Pottsville v. work done. The testimony of Heltzel and Jones, supra), and in so doing we can find others was therefore properly rejected. no error in its determination of that question. determine the sufficiency of the evidence as ment. It was the duty of the court to The city offered the lien as prima facie We said in Pottsville v. Jones, supra, evidence under the Act. None of its terms that rules and ordinances of council might were denied. The fourth paragraph recited properly be considered. If the ordinance of the Acts and ordinances under which the 1906 intended to and did embrace the con- work was done, and the lien filed. These struction done in 1874, it might have been ordinances provided for the payment of the proper evidence, but there was no evidence cost of the improvement. It is urged that of this fact. There is nothing in the ordin- the city should have offered the ordinances. ance which indicates such intention. The in evidence. The affidavit of defense did court was correct in holding from the evidence that the ordinance was too remote from the time when the work was done to be any evidence of intention as applied to this particular street. If we regard the experimental work done in 1903 as being macadam, this ordinance alone would not be sufficient evidence to establish municipal intention. Especially is this true when the work of 1903 was done by the highway committee under an ordinance approved in 1889, which provides: "Said committee * shall have general charge of, care and oversight of the ordinary repairs of all streets, alleys, highways, water courses *** pavings, gutters *** of the city, and shall enter into contracts for labor and material necessary for the same." It was clearly the intention of this ordinance that if this committee wanted to make any permanent improvement it must go back to council for authority. To have ratified this work as a permanent improvement in the face of this. ordinance required some act on the part of not deny that such ordinances imposed the cost on the abutting owners. The Act of 1901 does not require the lien to set out at length the Acts and ordinances under which the work was done. If the lien refers to such authority by recital of title, that is sufficiently descriptive to enable the defendant to know what laws and ordinances are claimed an authority, it will be a compliance with section 11 of the Act of 1901. If the authority does not exist, it must be set up in the affidavit of defense or questioned in other appropriate remedies. No challenge is made as to such authority by the affidavit, and under the 20th section of the Act of 1901, the lien is conclusive evidence of the allegations therein contained. We have discussed, in City of York v. Eyster, other questions raised in this appeal.* We need not repeat what was there said. The assignments of error are overruled and the judgment is affirmed. * Supra, 45. |