Warfel v. Burkholder (No. 2).

mutual mistake in the interpretation of the contract is a defense to plaintiff's claim on the check.

In order to decide this, we must first ascertain whether the mutual mistake of the parties is a mistake of fact or of law. If it is the former there is no doubt that the defendant sets forth a good defense in his affidavit of defense. His attorney has cited numerous authorities to show that a check or a note given, or any contract made, under a mistake of fact, can be avoided in law and equity. If, however, it is the latter, an entirely different rule applies. That parties cannot avoid a contract entered into through a mistake of law is well settled. In Light 2. Light, 21 Pa. 407, Chief Justice Black says: "Everyone is conclusively presumed to know the law. Without this presumption no law could be executed. Those who desire to violate it could easily misunderstand it, and ignorance could be feigned where it does not exist. If contracts were binding only on those who know what construction the Court would put on them, very few would stand. No system of jurisprudence could be administered for a year on this principle without falling to pieces. All codes therefore have adopted the maxim, Ignorantia legis neminem excusat'. I speak of a mere mistake, and not of misapprehension induced by the fraudulent acts of others. Where the party who commits an error of this kind is led into it by his adversary, who afterwards seeks to have the advantage of it, equity may give relief. So also the rule must be understood as referring to a naked mistake of pure law. In some of the books, 'knowledge of one's legal rights' is a phrase used to express that degree of information upon both fact and law which enables a party to judge how far a demand can be enforced by him or against him. The relief which equity gives for such ignorance of legal rights is based on the mistake of fact. Again: the contract cannot be enforced by one who has wilfully, knowingly and fraudulently abused the ignorance of the other party. If a widow who is acquainted with all the facts, but is wholly unaware that by law she has a right of dower, is induced by one who knows the law and at the same time knows her ignorance of it, to release or assign it for a totally inadequate consideration, she ought to be relieved. where the error is her own, and no imposition has been practiced nor any fraudulent advantage taken, her acts done under the influence of it are as binding upon her as if she knew the law perfectly. It is not pretended in this case that the defendant's mistake of the law (if she made one) was caused by the defendant or by the executors of her husband, or by any person interested in the estate; nor is it asserted that they had any more knowledge of the subject than she had. That she was not ignorant of any material fact is conclusively established by verdict."

In Cochran v. Pew, 159 Pa. 184, it is decided that an affidavit of defense is not sufficient to prevent judgment which alleges that the defendant signed a contract sued upon because both he and the plaintiff thought the language meant something different from what the law construed it to mean. This was a mistake of law from which the defendants could not be relieved. In Millard v. D. L. & W. R. R., 224

Warfel v. Burkholder (No. 2).

Pa. 448, it is decided that an affidavit of defense which alleges that a payment was made through ignorance of the legal effect of the terms of the written lease is not sufficient to prevent judgment in an action brought to recover it, for the reason that the ignorance was a mistake of law. To the same effect see Rankin v. Mortimere, 7 Watts 372; Good v. Herr, 7 W. & S. 253; Meckley's Estate, 20 Pa. 478; Harter v. Bomberger, 47 Pa. 492; Weller's Appeal, 103 Pa. 594; Lancaster v. Flowers, 208 Pa. 199. In Fink v. Farmers Bank, 178 Pa. 154, it is decided that equity will not relieve where the note was given by sureties on the bond of a cashier who were not liable for his defalcation, but through a mistake of law believed they were. Forbearance to proceed against a cashier was sufficient consideration for the note.

In the case at bar the parties were both familiar with the facts. They were both mistaken, as the affidavit of defense avers, as to the legal interpretation of the contract, and because of that mistake of law the defendant gave the plaintiff the check on which the plaintiff seeks to recover. When the defendant rescinded or repudiated his written contract to buy the farm, the plaintiff had a cause of action against him. What amount of damages he might have recovered does not appear. His forbearance to proceed against the defendant, and a settlement of all claim he had, arising from the deefndant's repudiation of the contract, was a sufficient consideration for the check. The case is ruled in all particulars by the authorities cited above, and we therefore make absolute the rule for judgment for want of a sufficient affidavit of defense, and enter judgment for the plaintiff in the sum of five hundred dollars ($500.00), with interest from the 29th of September, 1919, making a total of five hundred and fifteen dollars ($515.00). Rule made absolute.

Court of Common Pleas of Lancaster County

Seiple v. Sheaffer.

Building contract Price due on completion-Presumption-Affidavit of defense.

In an action for the consideration on a building contract which does not state when it was to be paid, an affidavit of defense is sufficient which avers that the price is not due until the work is completed, and the plaintiff has not completed the work.

Rule for judgment for want of a sufficient affidavit of defense. January Term, 1920, No. 78.

H. Frank Eshleman, for rule.

Chester A. Diller, contra.

April 17, 1920. Opinion by LANDIS, P. J.

The plaintiff's statement asserts that the defendant owned certain premises in eastern Lancaster County, on which the ruins of a former stone house stood, and that he had the same demolished to the foundation and proposed to build a new frame house thereon; that in June, 1919, he made a contract orally with the defendant, for the labor and

Seiple v. Sheaffer.

some of the materials for the erection of the house, for the sum of $1,459.00, on the old foundation, and that thereupon the plaintiff proceeded to do the work; that the defendant also made certain changes, entailing extra labor to the extent of sixty hours, for which he agreed to pay fifty cents per hour, or $30.00; that, on July 21, 1919, the original contract was put in writing, and reads as follows:

CHRISTIANA, PA., JULY 21, 1919.

"I, said D. S. Seiple, enters the contract for building of Samuel Sheaffer house, all carpenter work, painting, plastering, hardware, glass, nails, flashing and roofing to be entered in contract for $1,459.00.

All rain spouting, brick chimneys, and cleaning away around house to be done by the day.

Witness: H. E. MULLEN."

D. S. SEIPLE.

The plaintiff's statement further asserts that the bill for cleaning away of old rubbish was $23.00, and that there was extra work to the extent of $5.25 and $52.00; that the defendant paid on account $300.00, and that the balance which remains due is $1,225.25, with interest from December 20, 1919.

The defendant has filed an affidavit of defense. In it he admits the written contract as stated in plaintiff's statement, but alleges there were added to it the words, "The above contract to give satisfied." He alleges that the plaintiff was paid in full for all work and labor in demolishing the old building and in cleaning away the debris and rubbish previous to July 21, 1919, and denies all items of extra work. He further avers that the plaintiff put the roof on the house in such a careless and negligent manner that it leaks, and that it will cost $25.00 to have the defect remedied; that, under the contract, the defendant was to pay the contract price on the completion of the house, and that it is not yet completed, in that the porch is not erected, the porch sills are not hewed, and the spouting is not attached, and that it will cost fully $200.00 to complete the house; and that the amount due to the plaintiff is $1,459.00, less $569.00, or $890.00, which he is ready and willing to pay to the plaintiff.

It will be observed that the contract does not state when the contract price was to be paid. Presumably it was due, as asserted by the defendant, when the plaintiff had completed his work. If, then, the work is not finished, as he asserts, the plaintiff at this time is not entitled to judgment. The questions involved are, in our judgment, all issues of fact, which ought to be submitted to a jury. We are of the opinion that the Court at this time has no right to enter a judgment against the defendant. Whether the contract has been substantially performed or not may also be a question then raised, and, if it is, the plaintiff could recover for the amount of his work less any comparatively slight reductions for non-performance.

Under the facts as set forth, we think this rule should be discharged.

Rule discharged.

Court of Common Pleas of Lancaster County

John W. Smith v. The County of Lancaster.

Constables-Arrest-Reward for conviction.

Knowledge prior to the performance of an act of a reward offered for the same is essential to the right of recovery.

It is the duty of constables to pursue and arrest all felons coming within their jurisdiction and deliver them over to the proper authorities, and a promise of an extra reward for such services is without consideration.

A constable who arrested an escaped convict suspected of crime for which crime he was afterwards convicted and who did nothing further to secure the conviction, is not entitled to a reward offered subsequent to the arrest for such conviction.

Rule for judgment for defendant n. o. v. January Term, 1919, No. 38.

F. S. Groff and J. R. Kinzer, County Solicitor, for rule.

John E. Malone, contra.

January 17, 1920. Opinion by LANDIS, P. J.

Rule for judgment for the defendant non obstante veredicto. January Term, 1919, No. 38.

On May 24, 1918, Elizabeth V. Lausch was assaulted by some one, at that time unknown, and murdered. Samuel Garner, an escaped prisoner from the Lancaster County Jail was subsequently complained against as the offender, and, having been indicted for murder, was tried and convicted in the Court of Öyer and Terminer of this county. He was sentenced and electrocuted.

Information as to the commission of this crime was, in some way, conveyed to the plaintiff, on May 25, 1918. He resides in the City of Reading and is the constable of the sixteenth ward of that city. Thereupon, on May 26, 1918, the plaintiff came to Lancaster, and, because of what he learned here, he telephoned to the police in Reading to watch the house of Garner's sister, who lives in that city; and, on returning home, he ascertained that Garner had been at his sister's house, but had gone away. That same evening and early in the morning of the next day (May 27, 1918), he, in company with others, went out on the mountain adjoining the City of Reading, to apprehend Garner, and after hunting for some time, they met Garner on the public road and placed him under arrest. At the instance of the District Attorney of this county, the prisoner was brought to the Lancaster County Jail.

Some time on May 27, 1918, the Commissioners of Lancaster County offered a reward of $1,000 "for the conviction of the party or parties who murdered Elizabeth Lausch, late of Swartzville, East Cocalico Township, Lancaster Co., Pa." Garner was at that time in the Reading jail, under arrest for this crime. A bludgeon, which Garner had when he was arrested, and a scissors, a razor and a watch, which were taken by him and others from a house which they robbed, were handed to the District Attorney, and were used effectively on the trial. It was admitted that the plaintiff had no knowledge of the reward at the time of the arrest of Garner or when he was placed in the Reading jail. He served no subpoena, furnished no evidence on the trial, and VOL. XXXVII, No. 35

John W. Smith v. The County of Lancaster.

did nothing actively, as prosecutor, in securing the conviction. He and his associates were subpoenaed by the Commonwealth as wesses and attended the trial as such and gave their testimony. The question submitted to the jury was, whether or not Smith secured the conviction of Garner, and the jury found in favor of the plaintiff. The question now presented to us under the reserved point is, whether, under the evidence produced, he is entitled to recover this reward.

In Smith v. Whildin, 10 Pa. 39, the plaintiff proved that the defendant had offered him a reward of $100.00 for the arrest of one, M. Crossin, and that Crossin, under a warrant, was arrested by plaintiff's deputy. Coulter, J., delivering the opinion of the Court, said: "There was no consideration for the promise, and the Court below, therefore, misconceived the law. It is the duty of a constable to pursue, search for, and arrest offenders against whom criminal process is put into his hands. It is stated in Com. Digest, title Justice of the Peace B. 79, that the duty of a constable requires him to do his utmost to discover, pursue and arrest felons. The office of constable is created not for the private emolument of the holder, but to conserve the public peace, and to execute the criminal law of the country. He is not the agent or employee of the private prosecutor, but the minister of the law, doing the work of the public, which he is bound to do faithfully for the fee prescribed by law, to be paid as the law directs. . . . It would open a door to profligacy, chicanery and corruption if the officers appointed to carry out the criminal law were permitted to stipulate by private contract; it would open a door to the escape of offenders by culpable supineness and indifference on the part of those officers, and compel the injured persons to take upon themselves the burden of public prosecutions. It ought not to be permitted. Constables must do their utmost to discover, pursue and arrest offenders within their township, district or jurisdiction, without other fee or reward than that given by the law itself." It will hardly be denied that it is the duty of constables to pursue and arrest all felons coming within their jurisdiction, and deliver them over to the proper authorities. This is what the plaintiff did, and no more.

In Commonwealth v. Lane, 28 Sup. 149, it was decided that a constable is not entitled to the reward provided for under the Act of March 15, 1821, P. L. 388, for the apprehension of any person who shall have stolen any mare, horse or gelding within any county of this Commonwealth.'" To the same effect were, antecedent to this case, a large number of decisions in the Common Pleas Courts of this state. Butler, J., in Troutman v. Chambers, 9 Dist. Rep. 533, in speaking of the Coroner, said: "The answer is that he voluntarily takes the office with its existing burdens and emoluments, and must be satisfied with them."

Again, it is not contended that the plaintiff rendered the services in making the arrest with a knowledge that a reward had been offered. In fact, it has been shown that the reward had not been offered when the arrest was made. The arrest was made early in the morning of May 27, 1918. Even in the absence of exact data, the reward was