Osterling v Third United Presbyterian Congregation. New Trial Assumpsit—Architect Estimates as to Cost-Weight of the Evidence. Where an architect recovered a verdict for commissions on drawing plans for a structure that exceeded the estimates a new trial was granted in that the opinions and estimates of contractors in determining the cost of constructing a building under a given set of plans and specifications would be much more satisfactory in determining the actual fact than the mere opinion or estimate of an architect and the evidence was barely sufficient to take the case to the jury. (a) For a New Trial; (b) For Judg Motions Ex Parte Defendant: ment N. O. V. No. 2724 April Term, 1912. C. P. Allegheny County. Joseph F. Mayhugh, for plaintiff. Chas. T. Moore, Wm. S. Woods, for defendant. Before CARNAHAN, CARPENTER and STONE, JJ. STONE, J., June 11, 1920.-The defendant desiring to build a new church edifice, required the services of an architect. A number of men engaged in that profession and doing business in the City of Pittsburgh were requested to prepare plans, and among them was the plaintiff. He, as well a sothers, were notified among other things, that the cost of the structure was not to exceed $100,000. He prepared his plans in competition with others, and, his, appealing more to the congregation than did any other plan, resulted in his selection as architect. Estimates were taken on these plans and instead of the structure being possible of completion within the prescribed sum of $100,000, the estimates showed that to construct the building under plantiff's plans, it would cost from $175,000 to $240,000. Plaintiff then requested opportunity to revise his plans; this request was granted and the plaintiff says that the instructions were changed and he was authorized to prepare plans to the end that the total cost to the defendant of constructing the church edifice would not exceed $125,000 to $150,000. Incomplete estimates were taken on this particular set of plans showing it would cost to construct the building thereunder $158,000 by one contractor, and $182,000 by another. The plaintiff testified he had made an estimate of this particular set of plans and his conclusion was the building could be constructed for $150,000. Architects' estimates are generally lower than the estimates of contractors. No bids were taken by the plaintiff and no reference made by him to any contractor. It is true he claimed to have estimated the cost of constructing the building, but his testimony was not very satisfactory and was barely sufficient to warrant the submission of the case to the jury. The opinions and estimates of contractors in determining the cost of constructing a building under a given set of plans and specifications would be much more satisfactory in determining the actual fact than the mere opinion or estimate of an architect, especially when such estimate is by the architect who himself prepared the plans. At the time of the trial we were impressed with the fact that the great weight of the evidence on the particular point referred to was against the plaintiff, from which we conclude the second reason assigned by the defendant in support of its motion for a new trial, to wit, that the verdict is against the weight of the evidence, should be sustained. New trial granted. Decennial Census- -Time July 1, 1919, P. L. 708. In Re Judge's Salaries. -Ascertainment Of Announcement- -Act of Any additional salary of a judge in Pennsylvania whose salaries are increased by the population of the judicial district, as provided by the Act of July 1, 1919, P. L. 708, and as shown by the decennial census will not take effect as of January 1, 1920, but as of the date of the legal ascertainment and official announcement of the fact by the Director of the Census. OFFICE OF THE ATTORNEY GENERAL, Harrisburg, Pa. March 17, 1920. Hon. Charles A. Snyder, Auditor General, Harrisburg, Pa.: Dear Sir: This Department is in receipt of your request concerning the compensation of Judges, as affected by the decennial census. The Act of Congress approved March 3, 1919 (Public-No. 325-65th Congress), providing for the fourteenth decennial census, requires the information to be obtained "as of the date of January 1st in the year in which the enumeration shall be made." Necessarily the official announcement of the census will be somewhat de layed. Under the Act of July 1, 1919, P. L. 708, the salaries of Judges of the Courts of Common Pleas are graded from $7,000 in districts having a population of less than 65,000 to $10,000 in districts having a population of 100,000, but less than 500,000, and the Judges of the Orphans' Courts receive the same salaries as Judges of the Courts of Common Pleas. I understand when the census is declared some of the judicial districts will have a population which will put them in a different classification so as to increase the salaries of the Judges, and your precise inquiry is whether such Judges are entitled to that increased salary from the first day of January, 1920, the time fixed for the enumeration, or from the date when the census is declared. The Act of Assembly fixing the salaries of the Judges does not say how the population of the judicial districts is to be ascertained. In Luzerne County v Glennon, 109 Pa., 564, the Court held: "For the purpose of classification of Counties under the Salary Acts the United States decennial census is the sole test of population. The population at an intermediate time cannot be proved as a fact, but each county must remain in the class in which the last census found it until it is transferred to another class by a subsequent census." In Culdin v Schuylkill County, 149 Pa., 210, a case in which the question was whether the population under the census of 1890 put the coroner in a different classification from that under the census of 1880, the Supreme Court said: "In the absence of any legislative provision for otherwise ascertaining the fact, the population of a county is to be determined by the last Federal census." It, therefore, is apparent that the salaries of the judges are to be determined by the decennial census. It has been settled that the salaries of judges may be increased during their terms: Commonwealth v Mathues, 210 Pa., 372. The case of Lewis v Lackawanna County, 200 Pa., 590, is decisive of the question which you ask. In that case the District Attorney was elected Novem In re Judge's Salaries. ber 6, 1900 and entered upon the duties of his office July 7, 1901. The census was announced in the press bulletin November 19, 1900, after the election. The question was whether the District Attorney was entitled to the fees applicable to the County of the population as shown by the census of 1890, or whether he was entitled to a salary as shown by the census of June 1, 1900, but announced in the press bulletin of November 19, 1900. The Superior Court (17 Superior Court, 25), reversing the Court below, held that while the census was not declared until the press bulletin of November 19, 1900, yet, under the Act of Congress, the enumerating having been taken as of the first of June, when the declaration was made, it related back to the first of June and did not relate to the date on which the announcement was made. The Supreme Court, reversing the Superior Court, in an opinion by Mr. Justice Mitchell said in part: "Before the fact can become a part of the State law and be made the basis of action, it must be established by competent evidence. It follows, therefore, that it is not the mere existence of the fact that must govern its application, but its legal and official ascertainment." "But it is argued that as the census was taken as of June 1, 1900 the fact must be taken to be established as of that date without regard as to when the result is made known. This will not help the difficulty. There is no retrospective force in the census act, nor was any such effect intended. A date certain was necessary to insure correctness, uniformity, the avoidance of duplication, etc., and that is all that was intended. * * * The only escape from such intolerable inconvenience and confusion is by adherence to the logical principles of the law that the fact becomes applicable, only from its legal ascertainment." I, therefore, advise you that the additional salaries of any judges whose salaries are increased by the population of the judicial district as shown by the decennial census will not take effect as of January 1, 1920, but as of the date of the legal ascertainment and official announcement of the fact by the Director of the Census. Yours very truly, WM. M. HARGEST, Deputy Attorney General. Automobile Securities Company v Wood. Replevin-Repairs to Issue. Automobile-Bailment Sheriff's Interpleader— In replevin, one who refused to surrender an automobile until a repair bill was paid was entitled to have an issue framed on a Sheriff's interpleader where the repairs had been ordered by a bailee and the bailor had demanded its surrender on the ground that the terms of bailment did not authorize or permit the bailee to impose a lien for repairs on the car. Sur Rule to Show Cause Why Appeal Should Not Be Allowed From Judgment of County Court. No. 1546 July Term, 1920. C. P. Allegheny County. John MacDonald, for plaintiff. J. Smith Christy, for defendant. SHAFER, P. J., September 29, 1920.-The issue in the County Court was framed upon a Sheriff's interpleader to determine the ownership of an automobile, and it appears from the record that the plaintiff, the Automobile Securities Company, being the owner of the automobile, gave the same into the possession of Mrs. Happer upon a contract of bailment for one year, which provided that she should pay certain rentals each month and at the end of the time have a bill of sale. Mrs. Happer went into possession of the automobile and while in her possession it was very seriously damaged and she took it to the defendant, William H. Wood to be repaired, claiming to be the owner of it, and that the defendant, not relying upon her allegation of ownership, caused the records of the State Highway Department, operating under the Act of 1913, to be searched to ascertain whether or not Mrs. Happer was the owner, and finding her registered as owner of this automobile he proceeded to make the repairs, upon the credit of the automobile and that afterwards, when he had made very considerable repairs upon it, the plaintiff claimed it and refused to pay for the repairs. The Act referred to provides for a license to the owner or owners of automobiles, and also for a different license for drivers. The defendant contends that the plaintiff, when it turned over the automobile to Mrs. Happer, knew, or must have known that she proposed to use it, and they knew, or must have known, that she would take out a license as owner, and they at least knew that they themselves had taken out no such license, and that thus they enabled Mrs. Happer to deceive the defendant and that they are therefore now estopped from alleging their own ownership against the defendant to the extent of his outlay upon the machine. The defendant contends that the case is ruled by that of Sterns v Sica, 66 Superior Court, 84. What was decided in that case was that the contract of bailment did not authorize the bailee to impose a lien on the article bailed for repairs to it, and of this there can be no doubt. There was no question, however, in that case of any estoppal. We are of opinion, upon consideration of the whole case, that the rule should be made absolute. Rule absolute and appeal allowed. Injunction Beener v Morgan. Landlord and Tenant Lease Construction-Sale of Real A landlord was restrained by a permanent injunction from prosecuting ejectment proceedings against a tenant where a three year lease provided that if the property was sold the lease would terminate on the first of the following April 1, and the agreement for the alleged sale was found to be simply an option to buy. This did not amount to a bona fide sale as contemplated by the lease. Intricate and complicated questions of law involving the construction of a lease and an agreement of sale of real estate are not intended by the landlord and tenant statutes to be submitted to the decision of a justice of the peace, and equity restrained ejectment proceedings before a justice of the peace on a bill filed by a tenant where the validity of a sale of real estate was involved. Where defendant took no appeal or writ of certiorari from a judgment before a justice of the peace under the Acts of December 14, 1863, P. L. 1125, and of March 31, 1905, P. L. 87, ejecting him from the premises under the terms of two leases, one written and for a stated period and another oral lease, equity took jurisdiction and restrained further proceedings where intricate questions not intended to be passed upon by justices of the peace were involved. In Equity. No. 64 July Term, 1920. C. P. Allegheny County. Beatty, Magee & Martin, for plaintiff. John D. Brown and John E. Winner, for defendant. Before SHAFER and SWEARINGEN, JJ. Swearingen, J., October 7, 1920.-The complainant was the tenant of certain property owned by the defendant, by virtue of a written lease for the term of three years, which provided that, if the premises should be sold during the term, the lease should cancel on the first day of April following such sale. The defendant, on December 30, 1919, made an agreement with Edwin A. Sharman, which the plaintiff asserts was not a sale of property, within the meaning of the lease, and which the defendant asserts was such a sale. The plaintiff did not deliver possession of the premises, and, on April 1, 1920, the defendant instituted proceedings before a Justice of the Peace for the recovery of possession, pursuant to the Act of December 14, 1863, P. L. 1125. A hearing was had and the Justice rendered judgment against the complainant. Thereupon he filed this Bill, in which he prayed that the defendant be restrained from further prosecuting the proceedings before the Justice; and a preliminary injunction was granted. Thereafter, the defendant answered and the cause came on for final hearing, and testimony was taken. From the evidence, we find the following FINDINGS OF FACT. 1. On and prior to May 1, 1919, the defendant was the owner of a lot of ground in the City of Pittsburgh, Pennsylvania, having a front of approximately 981⁄2 feet on Hamilton Avenue, and extending back about 135 feet along Dallas Avenue to a private alley. 2. By a written lease, dated May 1, 1919, the defendant demised to the complainant, for the term of three years, at the total rental of $5,400, payable $150.00 monthly in advance, a portion of the premises described in Findings of Fact 1, as follows: "All that certain building on lot at the corner of Hamilton and Dallas Avenues, fronting 75 feet on Hamilton Avenue and 135 feet on Dallas Avenue to a private alley, comprising the front Garage building, the rear Garage |