Franklin S. Edmonds, Hugh B. Eastburn, | drawer has suffered no loss by the delay, he and Wm. Clark Mason, for appellant. How ard I. James, for appellee. POTTER, J. The plaintiff in this case, as the holder for value of a check, brought suit to recover the amount thereof from the drawer. The latter averred in his affidavit of defense that the check was given to the payee for use in a certain specific business transaction, and that it was diverted from the use for which it was intended, and was negotiated by the payee to the plaintiff, as security for a loan of $4,000, which loan was afterwards repaid. Upon the trial, plaintiff admitted that two payments, amounting to $850, had been made, for which he allowed credit. The evidence as to further payments was conflicting, and was submitted to the jury, and they found a verdict in favor of the plaintiff for the balance claimed by him, with interest. It appears from the evidence that the check was never presented for payment at the bank upon which it was drawn, and that it was held by plaintiff for nearly six years before suit was brought. It is apparent also from the evidence that through some arrangement between the drawer and the payee, it was not expected that the check would be promptly presented to the bank upon which it was drawn for payment. The transaction was unusual and irregular, and was not explained by the testimony. will not be discharged. A very proper comment upon this section is found in Eaton & Gilbert on Commercial Paper, § 167, where it is said: "This provision is declaratory of the general rule. The want of due presentment of a check does not discharge the drawer, unless he has suffered some loss or injury thereby. This is one point of difference between a check and a bill of exchange. The only way in which the drawer of a check would be liable to be injured by a failure to present it within a reasonable time is where subsequent to its delivery and prior to its presentment the bank upon which it is drawn becomes insolvent. In such a case, in respect to the check, the drawer will be discharged to the extent of the loss he has sustained thereby. In speaking on this subject, Judge Story says (Story on Promissory Notes, § 498): 'If a bank or banker still remains in good credit, and is able to pay the check, the drawer will still remain liable to pay the same, notwithstanding many months may have elapsed since the date of the check, and before the presentment for payment and notice of the dishonor. So, if the drawer, at the date of the check or at the time of the presentment of it for payment, had no funds in the bank or banker's hands, or if, after drawing the check and before its presentment for payment and dishonor, he had withdrawn his funds, the drawer would remain liable to As excusing the failure to present the pay the check, notwithstanding the lapse of check, plaintiff testified that he was request- time.'" In Flemming v. Denny, 2 Phila. 111, ed by the payee not to present it to the bank, at page 112, Judge Sharswood said: "To as it would interfere with his arrangements an action by a holder against the drawer of with the drawer, and he (the payee) desired a check, it is no answer that the check was to repay the amount of the check to the plain- not presented in reasonable time, unless, durtiff. At the trial, the payee testified that he ing the delay the fund has been lost by failhad paid the amount, in various partial pay-ure of the banker." Dents, and the truth of this assertion was the The affidavit of defense filed by defendant substantial issue between the parties. After in this case contains no averment of loss to the verdict, counsel for defendant moved for the drawer, by reason of nonpresentment, nor judgment non obstante veredicto, on the is there any suggestion of the failure of the ground (1) that plaintiff had not presented the bank. There was some evidence tending to check at the bank where it was payable, and show that defendant surrendered some se(2) because, presentment not having been curities to the payee of the check, with full made, the burden of proof was on the holder knowledge that it was outstanding in the of the check to show that the drawer had hands of a third party. Of course the drawer suffered no injury from the failure to present was aware at all times, from the condition it, and this was not shown. The court be- of his bank account, that the check was outlow ruled against the first contention, but standing and unpaid. The jury were persustained the second, and held that the bur-mitted to pass upon the question of loss in den was on the plaintiff to show that no loss was caused to the drawer by the delay in presenting the check. And as there was no [roof that defendant had not suffered loss, judgment was entered for defendant non obstante veredicto. The act of May 16, 1901 (P. L. 194), known as the "Negotiable Instruments Act," provides in section 186: "A check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon to the extent of the loss caused by the delay." The fair inference this respect, and they found in favor of the plaintiff. The defense was made substantially upon the ground of payment. If the defendant suffered any loss by reason of the check not having been presented, either through the failure of the bank, or otherwise, that fact was something peculiarly within his own knowledge. His failure to make any such allegation in his affidavit of defense was sufficient to justify a presumption that no such loss occurred. We agree with the principle set forth in the opinion of the Supreme Court of Minnesota, in Spink & Keyes Drug out, is insufficient to require consideration. 18, 71 Am. St. Rep. 477, which was a case in, cific findings or exceptions thereto not being set which the payee brought suit against the drawer, on a bank check. Mitchell, J., there said: "It strikes us that, upon both principle and reason, it should be held that loss by reason of negligent delay either in making presentment or in giving notice of dishonor, is a matter of defense to be pleaded and proved by the drawer, instead of requiring the holder to allege and prove a negative as to a matter peculiarly within the knowledge of the drawer." In the absence of any allegation or averment of loss by the defendant, we think the court below erred in holding that the burden of proof was upon the holder of the check to show that the drawer had suffered no loss. The assignment of error is therefore sustained, the judgment entered in favor of defendant non obstante veredicto is reversed, and the record is remitted to the court below, that such judgment may be entered as law and right require. CONDRON v. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Oct. 9, 1911.) 1. APPEAL AND ERROR (8719*) — ASSIGNMENTS OF ERROR-FINAL DECREE. An equity suit involving the dismissal of a bill not being appealable until the entry of final decree dismissing the bill, when such decree has been entered, it must be assigned as error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; Dec. Dig. § 719.*] 2. APPEAL AND ERROR (§ 839*)-REVIEWASSIGNMENTS OF ERROR-OPINION-FINAL DECREE. The dismissal of assignments of error to the opinion of the trial court is not erroneous, since it is the decree and not the opinion which is assignable as error. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 839.*] 3. APPEAL AND ERROR (8 71*)-DECISIONS [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 386-401; Dec. Dig. § 71.*] 4. APPEAL AND ERROR (§ 841*)-REVIEWUNDISPUTED FACTS. Where no exception was taken to the finding of facts, and the facts themselves are admitted in an assignment of error to the admission of the statement of the facts, and the real objection is to the conclusion of law reached by the court, the assignment will not be con sidered. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3315; Dec. Dig. & 841.*] 5. APPEAL AND ERROR (8 731*) - ASSIGNMENTS OF ERROR-SUFFICIENCY. A mere general allegation in an assign ment of error that the trial court erred in findings of fact or conclusions of law, the spe Where a property owner, a member of the body enacting a borough ordinance authorizing and sees a railroad expend $50,000 on the faith the vacation of a street crossing, stands by of the ordinance, his laches will deprive him of relief by injunction, regardless of the nature of his original equities. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 198-201; Dec. Dig. § 113.*] 7. INJUNCTION (§ 113*) - ACTIONS FOR IN JUNCTION-LACHES. Where a party has by his laches made it impossible for a court of equity to enjoin his adversary without inflicting great injury upon him, such party will be left to his ordinary legal remedy, especially where it is sought to restrain the completion or use of a public work, and the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought. [Ed. Note.-For other cases, see Injunction, Cent. Dig. §§ 198-201; Dec. Dig. § 113.*] Appeal from Court of Common Pleas, Blair County. Bill in equity by Joseph B. Condron against the Pennsylvania Railroad Company. From a decree dismissing the bill, plaintiff appeals. Affirmed. Bill in equity for an injunction to restrain the vacation and abandonment of a crossing at Montgomery street in the borough of Hollidaysburg. From the record it appeared that the plaintiff was the owner of a planing mill, lumber and coal yard south of the Montgomery street crossing. On August 28, 1905, the borough council of Hollidaysburg passed an ordinance authorizing the vacation and abandonment of the crossing. Plaintiff was a member of the borough council and voted against the ordinance. All the other members voted in its favor. There was evidence that the plaintiff stood by while the defendant company spent $50,000 in vacating the crossing and erecting an overhead bridge at the point in question. The case was heard on bill, answer, and proofs by Bell, P. J., who concluded his opinion in favor of defendant as follows: "A decree is therefore suggested dissolving the injunction heretofore granted, upon a condition that the Pennsylvania Railroad Company will file a bond in the sum of $6,000 conditioned for the payment to Joseph B. Condron of any damages which he may lawfully recover by reason of the vacation of said crossing at Montgomery street. "The prothonotary is directed to file this opinion, and enter a rule nisi in accordance with equity rules Nos. 63 and 64, and give notice to the attorneys for the respective parties." No final decree was entered by Judge Bell. | tion, said exception and the court's ruling An appeal, however, was taken, but the case thereon being as follows: The learned court was remitted by the Supreme Court back to erred in its legal conclusions, as follows: the court of common pleas, so that a final Moreover, we think that Mr. Condron, at decree might be entered. In the meantime the time of the filing of this bill, was esJudge Bell died, and thereafter a final de- topped from raising any question as to the cree was entered on May 5, 1910, by Reed, invalidity of said ordinance of August 28, P. J., specially presiding. 1905. The councils of Hollidaysburg cerErrors assigned were in the following tainly would have been estopped. It was form: their duty, or the duty of their proper offi(1) The learned court below erred in re- cers, to see that this ordinance was properfusing to affirm the plaintiff's first exception, ly advertised. They accepted from the Pennsaid exception and the court's ruling there- sylvania Railroad Company the fruits proon being as follows: The learned court duced by the ordinance. The railroad comerred in its findings of fact, as follows: Dur-pany did just what it agreed to do-put up ing the recent depression in business, freight an overhead bridge at Jones street, at a large traffic fell off greatly, but has partially revived, and is likely in the near future to equal, if not to exceed, the figures testified to by Mr. Smith. (2) The learned court below erred in refusing to affirm the plaintiff's second exception, said exception and the court's ruling thereon being as follows: The learned court erred in its legal discussion and conclusion as follows: But I am of the opinion that said act of assembly is in pari materia with other legislation regulating borough ordinances. We find that the Act of May 23, 1893 (P. L. 114) § 3, provides in relation to the duties of chief burgess, as follows: "May veto ordinances, etc. Every ordinance and resolution which shall be passed by said council shall be presented to the chief burgess of such borough. If he approve, he shall sign it, but if he shall not approve, he shall return it to said council at the next regular meeting thereof, when said objection shall be entered at large in the minute book, council shall proceed to a reconsideration of such ordinance or resolution. If, after such reconsideration, two-thirds of all the members elected to said council shall vote to pass such ordinance or resolution, it shall become and be of full force and effect, as if said burgess had signed it." Third. This act of May 23, 1893, we think applies to the matter now in consideration. Two-thirds of the members elect did vote to pass the ordinance over the burgess veto. This being so, it became "of as full force and effect as if the said chief burgess had signed it." To give to the burgess the power contended for the plaintiff, would make him a veritable czar. He could prevent a street being vacated by ordinance, even if every member of council were in favor of such vacation. We will not adopt such a construction of the act of assembly unless driven to do so by words So unequivocal as to leave no doubt as to their meaning. But as we have said before, we think the act allowing the vacation of streets must be read in connection with said act of 1893, giving the councils a right to override the veto of the burgess, said two acts being in pari materia. expense of money, and paid the borough the $10,000 provided for in the ordinance in question. It would be grossly inequitable after the borough had received the benefit produced by the ordinance to allow the council to repudiate, and does not the same rule as to estoppel prevail as to Mr. Condron? He knew of the ordinance of August 28, 1905, and its passage, because he was present when it was finally enacted and voted nay. He could not fail to see the railroad company erecting the overhead bridge at Jones street. Under such circumstances is he not estopped from now coming in and claiming the aid of a court of equity? Should he not have moved more promptly if he desired to take advantage of technicalities in regard to the passage of said ordinance of August 28, 1905? (4) The learned court below erred in refusing to affirm the plaintiff's fifth exception; said exception and the court's ruling thereon being as follows: The court erred in its legal conclusions, as follows: A decree is therefore suggested, dissolving the injunction heretofore granted, upon condition that the Pennsylvania Railroad Company will file a bond in the sum of $6,000, conditioned for the payment to Joseph B. Condron of any damages which he may lawfully recover by reason of the vacation of said crossing at Montgomery street. Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ. Robert W. Smith, for appellant. D. J. Neff and J. D. Hicks, for appellee. POTTER, J. [1] When this case was first called for argument in this court, it appeared that no final decree had been entered dismissing the bill, and the record was therefore remitted to the court below for further hearing and the entry of a final decree. The case was then heard again before Judge Reed presiding specially, who entered a final decree, in which he overruled the exceptions to the findings of fact and conclusions of law, and dissolved the injunction and dis(3) The learned court below erred in re missed the bill. As the case is now presentfusing to affirm the plaintiff's fourth excep-ed, it appears that the specifications of er ror are defective, in that the final decree of the court below is not assigned for error. Such an assignment is requisite. Clymer v. Roberts, 220 Pa. 162, 69 Atl. 548; Kenworthy v. Trust Co., 218 Pa. 286, 67 Atl. 469. We refused to hear argument when the case was brought here without a final decree, and, now that such a decree has been entered, it has not been assigned for error. This leaves the case substantially as it was before in so far as the decree is concerned. In the first specification, complaint is made that the court below erred in dismissing an exception to a finding of fact. This assignment is not pressed in the argument, and the matter to which it refers does not seem to be material to the issue. It does not seem to be warranted by anything in the evidence, but the finding could not have harmed appellant in any way. [2] In the second and third assignments, complaint is made of the dismissal of the exceptions to portions of the opinion of the court below; but it has been repeatedly pointed out that it is the decree of the court which is assignable as error, and not the opinion. Seltzer v. Boyer, 224 Pa. 369, 73 Atl. 438; Johnston's Estate, 222 Pa. 514, 71 Atl. 1053; Fullerton's Estate, 146 Pa. 61, 23 Atl. 321. [3] The alleged error set forth in the fourth assignment is the dismissal of plaintiff's exceptions to the decree suggested by the trial judge, dissolving the preliminary injunction on condition that the defendant should file a bond. This was not a final decree, and is therefore not assignable for error. It was merely a suggestion of the trial judge of what he considered a proper re quirement before the entry of a decree. [4] In the fifth assignment, it is alleged that the court below erred in the admission of a statement of certain facts. There was, however, no exception taken to the findings of facts, and in the assignment itself they are admitted; but it is denied that the legal effect given to them was proper. It is apparent, therefore, that the objection here raised is to the conclusion of law reached by the court, rather than to the admission of the facts in question. [5] In the sixth assignment there is a general allegation that the court below erred in its findings of fact and conclusions of law. But no findings of fact or conclusions of law, to which objection was made, are definitely set forth, nor does it appear that any exceptions were taken to the findings and conclusions. In United Electric Co. v. East Pittsburg Boro., 230 Pa. 65, page 70, 79 Atl. 229, page 231, we pointed out that, "The assignments should be to the final action of the court upon exceptions to the rulings of the trial judge. Each assignment should show an exception filed and the disposition made of it by the court." And in Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605, 74 Atl. 648, signments of error to findings of fact and law, although showing that exceptions were filed, are defective if the dismissal of the exceptions is not assigned for error." In the seventh assignment of error complaint is made of the overruling of the exceptions of the plaintiff to the order of the court below made on May 5, 1910, and to the form of decree then suggested by the court. As we have already held that this order was not a final decree, to which an appeal would lie, it is not therefore properly to be made the subject of an assignment of error. Especially is this true, since a final decree was afterwards entered, after final hearing in the court below. [6] The only question here involved is as to the right of the plaintiff under the circumstances to claim the benefit of a remedy which is solely equitable in its nature. The court below was of opinion that the plaintiff. by his conduct, had precluded himself from applying for relief through equity. Judge Reed says, "The plaintiff stood by and saw the defendant expend $50,000 on the faith of the original ordinance in question, and he cannot now be heard to question its validity. He was a member of the body that enacted it, and the somewhat technical objection which he now raises to strike it down was as well known to him before the defendant had spent a dollar on the faith of the ordinance as it was at the time he filed this bill. He was silent then, and the law will not permit him to speak now. In these circumstances the plaintiff's complaint does not come within the province of equitable relief." Without anticipating in any way the consideration of the legality of the ordinances involved, as that may be properly raised by the plaintiff in an action at law, we are of opinion that upon the ground of laches by the plaintiff, the injunction asked for in this case was properly refused. The court below, probably through inadvertence, spoke of plaintiff as being estopped. But the doctrine of estoppel can hardly apply here, for the reason that the defendant company had the same opportunity to know the facts with regard to the passage of the ordinance as the plaintiff had. It was not deceived in that respect. In Woods v. Wilson, 37 Pa.. 379, page 384, Mr. Justice Thompson said that the law of estoppel operates "only in favor of those who, after the exercise of diligence, are still ignorant of an opposing title, and against those who, aware of their own title and knowing it to be secret, are silent. When both parties are aware of their respective rights, it has no place in law or equity." But the inexcusable delay of the plaintiff, in asserting his rights, is another matter, and the consequent injury and prejudice to the defendant company, in permitting it to expend large sums in reliance upon its contract with the borough council, may well be held to bar his right to recover in a court In 2 Pomeroy on Equity Jurisprudence (3d Ed., 1905) § 817, it is said: "Acquiescence in the wrongful conduct of another by which one's rights are invaded may often operate, upon the principles of and in analogy to estoppel, to preclude the injured party from obtaining many distinctively equitable remedies to which he would otherwise be entitled. This form of quasi estoppel does not cut off the party's title, nor his remedy at law. It simply bars his right to equitable relief, and leaves him to his legal actions alone. The equitable remedy to which this quasi estoppel by acquiescence most frequently applies is that of injunction, preliminary or final, when sought by a proprietor to restrain a defendant from interference with easements, from committing nuisances, from trespasses, or other like acts in derogation of the plaintiff's proprietary rights." In 1 High on Injunctions (4th Ed., 1905) § 643, it is said, “As in all cases of the exercise of the strong arm of equity by injunction, the right to the relief may be lost by one's own negligence and delay in seeking protection." As an instance of the application of the rule, the author says (section 618): "Where a property owner, who seeks to enjoin a railway company from using its tracks upon a street in front of his premises, has permitted the company to expend large sums of money in the construction of its track, and has acquiesced in their use for a considerable number of years without objection or complaint, such acquiescence will deprive him of relief by injunction regardless of what his original equities may have been." [7] The general principle is thus stated in 16 Am. & Eng. Ency. Law (2d Ed.) 356: "A suitor, who by laches has made it impossible for a court to enjoin his adversary without inflicting great injury upon him, will be left to pursue his ordinary legal remedy." This rule is especially applicable where the object of the injunction is to restrain the completion or use of public works, and where the granting of the injunction would operate injuriously to the public as well as to the party against whom the injunction is sought. In the present case there can be no question but that the interest and safety of the public require that such a dangerous grade crossing over so many tracks should be abolished. As Mr. Justice Dean said in Penna. R. R. Co. v. Bogert, 209 Pa. 589, page 598, 59 Atl. 100, page 103: "The policy of the commonwealth and this court with reference to grade crossings has been frequently and in no uncertain terms announced. It is that the murderous grade crossing must go." Under the well-established principles of equity jurisprudence, as above noted, we think the court below was justified in refusing an injunction and in leaving appellant to his remedy at law. The assignments of error are all dismissed, and the decree of the court below is affirmed. 1. APPEAL AND ERROR (§§ 731, 743*)—AsSIGNMENTS OF ERROR-SUFFICIENCY. Assignments of error, in an equity case, which complain of rulings on the evidence, but fail to state where the testimony referred to can be found in the paper book, or which complain of findings, but fail to show specifically that exception was taken, or, if taken, how it was finally disposed of, are defective and will be dismissed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. $$ 731, 743.*] 2. QUIETING TITLE (§ 44*)-PROCEEDINGSSUFFICIENCY OF EVIDENCE. A decree for defendants on a bill to quiet title, to fix the line between adjoining parcels of realty, and to restrain defendants from constructing a building, will not be disturbed, where both parties claim through common grantors, and the dispute is over the ownership of a strip of ground partly covered by a partition wall running the entire depth of the premises, and where the defendants' grant was scribed the lot as containing a given number of three years prior to that of plaintiff and defront feet sufficient to include the tract in controversy, while the plaintiff's grant debounded by the lot of defendants, and, though scribed a lot without fixed dimensions, but as the wall in its original state belonged at first to the house on plaintiff's lot, it was treated and used for more than three-quarters of a century as belonging to the property of defendants. [Ed. Note.-For other cases, see Quieting Title, Dec. Dig. § 44.*] 3. BOUNDARIES (§ 5*)-DESCRIPTION-MONU MENTS. The particular mention of a building in tute a monument which will include all the the description of a lot conveyed may constiground covered by the building and fix the lines of the land. [Ed. Note. For other cases, see Boundaries, Dec. Dig. § 5.*] 4. BOUNDARIES (§ 3*)-DESCRIPTION-CONFLICTING ELEMENTS. While monuments which can be identified always control courses and distances, the measurements of lines where courses and distances are given should not be disregarded in claimed to have been found with those referred determining the identity of the monuments to in a deed. [Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*] Appeal from Court of Common Pleas, Fayette County. Bill in equity by Daniel Chisholm against Josiah V. Thompson and others. From a de cree for defendants, plaintiff appeals. Af firmed. Bill to quiet title, to fix the line between two adjoining pieces of real estate, to restrain the defendants from constructing a building, and to ascertain and award damages. The bill averred that the defendants were about to erect a building the easterly wall of which would encroach upon the westerly side of the adjoining lot belonging to plaintiff. The defendants answered that the |