Washington Borough v. Smith

Opinion by William W. Portee., J., This proceeding is by scire facias upon a municipal lien for the laying of a sidewalk in front of property owned by W. W. Smith and Gertrude S. Miller. The lien was filed pursuant to an ordinance of the borough providing that owners of property “shall within twenty days after notice, at their'own proper cost and expense, grade, pave and curb the sidewalks in front of their respective properties; ” and that “ if any lot owner shall neglect or refuse to grade, pave or curb in front of his or her property, after notice given in accordance with the provisions of the 1st section of this ordinance, the authorities of the said borough may cause the same to be done, collecting the cost of the work and material, with twenty per centum penalty in addition, from such lot owner, in the manner provided by the laws of this commonwealth.” It will be observed that the purpose of the notice required is that the property owner may, by doing the work himself, save the penalty imposed. No particular form of notice is prescribed by the ordinance, nor is the method of giving it specified. It is sufficient if the owner shall have notice within the contemplation of the general provision. In this case the property was owned by W. W. Smith and Gertrude S. Miller, jointly. A written notice was personally served upon W. W. Smith. This is not denied. It is, however, contended by the defendants that the notice contemplated by the ordinance was not given to Mrs. Miller. The notice served on Smith was addressed to “ Smith and Miller.” It is contended by the plaintiff that, as the parties were tenants in common, the service of notice on Smith was notice to Mrs. Miller. In Darlington v. The Commonwealth, 41 Pa. 68, a notice, required to be given to property owners of [593] an intended opening of a street through their property, was held to be sufficient if actually given to one of two tenants in common. The notice was personal and not written. Apparently, it was not transmitted by the owner notified, to his cotenant. The principal ground upon which it was held to be good as to both was that the proceeding affected only the possession of the owners, and that, being tenants in common, the possession of one was the possession of both. The case does not decide the one before us. While service on Smith was not, in law, notice to Mrs. Miller, yet the fact that the parties had a joint interest in the property has a bearing on the subsequent discussion, relative to the agency of Smith. The plaintiff contends that Smith was in fact the agent of Mrs. Miller in the management of the property, as well as' a tenant in common with her. The testimony in the cause showed that Smith attended to the renting of the property, and the collecting of the rents, that he paid the taxes, and that he attended to the repairs with the consent of Mrs. Miller. This, Smith admits, but at the same time denies that he had authority to act for Mrs. Miller in respect to the laying of the sidewalk. Mrs. Miller denies that Smith was her agent, but does not deny, in terms, his collection of the rents, etc. She denies receiving any notice of the intended paving of the sidewalk. Her testimony clearly shows, however, that she had some knowledge of it by publication, and that she had a conversation with Mr. Smith, her cotenant, on the subject, before the pavement was laid and before the notice was served. The tenant of the property testifies that he had no dealings with Mrs. Miller in respect to the property; that he did go to her once, but that she gave him to understand that Mr. Smith had the control of it, and that she had given up the management of it to him. This testimony is not conclusive proof of the agency. Taken, however, in connection with the facts that the parties were mutually interested in the property; that Mrs. Miller was absent from the borough beyond the personal service of the notice; that the work to be done was a public improvement; that no specific form or method of service of the notice was prescribed by law; that one tenant in common may bind his fellows for absolutely necessary repairs to the joint property: that the purpose of the notice was to afford relief from a penalty, rather than to. fix an [594] original liability; the court committed no error in submitting to the jury the questions of notice and of agency, as was done in the charge. We have given the assignments careful consideration, and find that none discloses error sufficiently substantial to warrant a reversal. The judgment is affirmed.