Volume 210 — Pennsylvania State Reports

<p>Appeal, No. 185, Oct. T., 1904, by plaintiff from judgment of C. P. Armstrong Co., March T., 1908, No. 215, on verdict for defendant in case of E. N. Gillespie to use of the Enterprise Natural Gas Co. v. Simon Iseman.</p> <p>Assumpsit to recover the value of natural gas.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows :</p> <p>[So we submit to you the testimony of Robert W. Shoop while on the witness stand, as to what connection he bad with this company, and what he did and said when talking to Mr. Iseman about this matter, to decide whether or not this gas company clothed him with apparent authority to act in their behalf'.] [4]</p> <p>Now gentlemen of the jury, I submit that testimony to you to say whether or not Robert W. Shoop was clothed by this plaintiff company with apparent authority to speak for it. If you find, from all the evidence in this case, that he was, then his declarations would be binding upon the plaintiff company.</p> <p>[If you find that Robert W. Shoop was clothed with apparent authority by this company to make this declaration and that he did make it, and on the faith of that declaration Mr. Iseman used this gas, believing that he would not have to pay for it, then the plaintiff cannot recover.] [5] But if you believe the testimony of Robert W. Shoop and his father, that they gave no such consent, then Mr. Iseman would not be exonerated from paying for the gas he thus used.</p> <p>[The second ground of defense that Mr. Iseman sets up is that under the terms of this contract he was not bound to pay for using gas in this outside light. The contract, or that part of it, reads as follows : “ It is further agreed that the party of the second part shall equip the house of the party of the first part for the use of natural gas, and shall furnish gas.free of cost, providing gas is found in paying quantities.” The material part of that is this : “ shall furnish gas free of cost,”— how furnish it and where ? Now if that was a clear expression, for instance, if it said that Mr. Iseman was to use gas inside of his dwelling house, or that he should use gas only in his cook stove, or that he should use gas in four dwelling-house fires, then the contract would be plain and the court would have to construe the contract and could not allow the jury to say what the contract meant. But, in the opinion of the court, this contract is ambiguous. It says “ shall furnish gas free of cost,” but does not say whether inside or outside of the house.] [6]</p> <p>[As we understand the law, it is for the jury to say, taking into consideration the situation in which the parties stood and the things for which they would naturally provide, and taking into consideration the condition in which Mr. Iseman, or rather Mr. Meenan at that time lived, and the nature of his farm and his buildings on the farm, and the way in which people in the country ordinarily use natural gas, and what wants and necessities Mr. Meenan was providing for, how did the parties understand this contract in the light of surrounding circumstances at that time.] [7]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (4-7) above instructions, quoting them.</p>

<p> Corporations—Officers—Guaranty-—Insolvency—Assignment for creditors. </p> <p>Where the officers of a corporation, in order to secure from a bank an extension of a loan, give to the bank a paper to the effect that the bank “will be preferred always should anything ever happen,” the bank will not be entitled to claim a fund arising from the assignment of the corporation for the benefits of its creditors, in preference to the individual claims of the officers.</p>

<p> Deed—Estate tail—Fee simple estate—Rule in Shelley’s Case. </p> <p>Where the premises of a deed describe the grantee as a married woman, and “ heirs ” by her then husband, and the grant is to the “said parties of the second part their heirs and assigns,” the deed conveys an estate in special tail, which under the Act of April 27, 1855, T. L. 368, is converted into an estate in fee simple.</p>

<p>Appeal, No. 100, Oct. T., 1904, by defendant, from decree of C. P. Indiana Co., June T., 1901, No. 1, on bill in equity in case of J. II. Weaver v. Charles Griffith.</p> <p>Bill in equity by purchaser for specific performance of a contract to sell land. Before White, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree of specific performance.</p>

<p>Negligence—Master and servant—Risk of employment—Obvious danger— Contributory negligence—Buzz saw.</p> <p>While it is the duty of an employer to give information to an employee, as to the particular perils and dangers of the service in which he is engaged, this duty does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation.</p> <p>The owner of a sawmill is under no duty to instruct a workman over twenty years of age who has worked for more than four months in the mill, as to the danger of letting his hand come in contact with a circular saw, where the operation of the saw is open and visible, and the danger obvious. •</p>

<p>Appeal, No. 178, Oct. T., 1904, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1902, No. 12, on verdict for plaintiff in case of Margaretta Hartman v. Citizens Natural Gas Company.</p> <p>Trespass to recover damages for injuries to a house and personal property. Before Wilson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,983.52, upon which judgment was entered for $2,541.50, all above that amount having been remitted.</p> <p>Errors assigned were various portions of the charge.</p>

<p>Appeal No. 131, Oct. T., 1904, by defendant, from judgment of Superior Court, April T., 1904, No. 114, affirming order of C. ,P. Westmoreland Co., Nov. T., 1903, No. 634, awarding writ of preliminary mandamus in case of Commonwealth ex rel. Wm. Miller & Sons v. John H. Brown, Controller of Westmoreland County.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court by Porter, J., was as follows:</p> <p>The proceedings to determine the necessity for the erection of a new courthouse seem to have been conducted by those in authority in the county of Westmoreland with care, and those invested with the discretion to determine the questions arising in this important matter are conceded to have brought to the consideration thereof, painstaking deliberation.</p> <p>Plans and specifications for the proposed new building were adopted by the county commissioners in June, 1901, and approved by both the judges of the court of common pleas. On August 2 of the same year, a contract was awarded for the removal of the old building, and on August 10 of the same year, the court directed the removal of the records to temporary quarters which had been prepared for their reception. Both these undertakings were promptly carried into execution. On October 23, 1901, a contract was duly awarded for the excavation and the construction of the foundation of the new courthouse to be erected in accordance with the adopted plans. This contract has long since been carried into execution.</p> <p>Twice during the year 1902 bids for the erection of the building were duly advertised for, but no bid was received which met the approbation of all those whose approval was necessary to the contract on behalf of the county. On May 4, 1903, all of the county commissioners concurred in certain modifications of the specifications, which action was upon the same day approved by both the judges of the court of common pleas.</p> <p>With the amended specifications as a basis, bids were invited by public advertisement and on July 9,1903, seven contractors, all of whom seemed to be responsible, submitted bids for the work; the bids having been publicly opened, that of the relators was found to be the lowest and was accepted by the county commissioners. A contract for the execution of the work, according to the specifications, with sureties for its faithful performance, having been prepared, the same was approved by one of the judges of the court of common pleas on September 26, 1903, and on the 29th of the same month the county commissioners awarded the contract for the work to the relators, and executed the contract in the form in which it had been approved by said judge. The relators entered upon the ground and proceeded to execute the work according to the terms of the contract.</p> <p>The respondent does not deny that the relators did the work for which they now demand payment, nor that according to the terms of the contract the amount is due and payable ; he bases his refusal to draw his warrant for the amount upon the ground that the contract is invalid. There is no suggestion of fraud in the letting of the contract, nor that the relators were not the lowest bidders, nor that the price agreed upon was not fair and reasonable. Bids for the work had been repeatedly asked for by public advertisement, and the attention of contractors throughout the country who were capable of performing work of this character had been directly called to the undertaking.</p> <p>There is no dispute as to the facts, and it has been conceded upon the argument of this appeal that the determination of the validity of this contract involves the consideration of only two questions. (1) Was the local Act of April 4, 1870, P. L. 834, entitled “ An act relating to contracts by county commissioners in certain counties of this commonwealth,” repealed by the general Act of April 19, 1895, P. L. 38, entitled “ An act to regulate the erection of county buildings ? ” (2) If the local act of April 4, 1870, is still in force, then was its requirement as to public advertisement prior to the opening of the bids complied with ?</p> <p>The first question is so fully considered in the opinion of the learned judge of the court below, and the conclusion at which he arrived is so satisfactorily sustained by the authorities there cited that we do not deem it necessary to supplement what is said on that branch of the case. We are of the opinion that the local act of April 4, 1870, remains in force in Westmoreland county.</p> <p>This leaves for consideration the sufficiency of the public advertisement of the invitation to bidders to submit sealed proposals for the execution of the work. The provision of the statute material to the inquiry is as follows: “ The county commissioners .... before making any contract for the erection of any new building or buildings, bridge or bridges, .... shall, by public advertisement, printed in not less than two weekly newspapers of the county, if so many be published therein, where the contract is to be awarded, for not less than four weeks, .... invite sealed proposals for the same according to the specifications, which shall be written or printed in a book to be kept by the commissioners for that purpose, and kept open for the inspection of all persons for at least four weeks before the time appointed by said advertisement for the opening of said sealed proposals, and which, at the time fixed, shall be publicly opened and the contract awarded to the lowest bidder or bidders.”</p> <p>The specifications for the work in question had been of record in the office of the commissioners for a period considerably longer than four weeks. The commissioners determined to fix the time for the opening of the sealed proposals for July 9, 1903, at one o’clock p. M. The invitation for sealed proposals was first published in daily newspapers, beginning more than four weeks prior to the time fixed for the opening of the bids; The statute requires the publication to be in weekly newspapers,' a term which has a well-recognized meaning, that is, a newspaper published once in each week. A publication in a daily paper was not in accordance with the requirements of the statute, and such publication must be eliminated from the consideration of this question in its legal sense, however material it might be if the good faith of the officers representing thé county had been called in question. .</p> <p>The advertisement inviting the sealed proposals for the erection of the courthouse, according to the specifications of record in the office of the commissioners, was published in two weekly newspapers of the county on June 16, June 23, June 39, and July 7, 1903, each of said days of publication being Tuesday. The notice was in due form and the invitation was for sealed proposals until one o’clock p. M., Thursday, July 9,1903, at which time the bids were publicly opened in accordance with the terms of the notice. The only question is whether this publication in the weekly papers was in accordance with the provisions of the statute.</p> <p>The statute is to be construed with a view to the purpose which it is intended to accomplish, to effect the legislative intention, and give effect to all its provisions. The purpose of this statute is to secure competitive bidding, upon equal terms, under conditions which give to all bidders full and accurate information as to the character of the work to be performed. The means used to accomplish the end are the two requirements, (a) That the specifications shall be a matter of public record “ for at least four weeks ” before the opening of the bids; (5) That the commissioners shall “ by public advertisement, printed in not less than two weekly newspapers of the county, .... for not less than four weeks, invite sealed proposals for the same, according to the specifications.”</p> <p>The requirement in each case involves the element of time. The specifications must be of record “ at least four weeks; ” the invitation to bid on the specifications must be “ printed in not less than two weekly newspapers .... for not less than four weeks.” The invitation must refer to the specifications, in this there evidently was a purpose. An invitation to bid without a reference to the specifications as to the work to be done, would be a useless and absurd thing. The things required are intended to contribute to the same end, and in order to be effective they must be done at the same time. The record of the specifications could not accomplish the purpose of the statute if the attention of bidders was not called to the undertaking; the advertisement for bids would amount to nothing if it did not, as required by the statute, refer to the record of the specifications. The expression “not less than four weeks” is the exact equivalent of “ at least four weeks.”</p> <p>When the legislature enacted that the invitation to bid should be printed, in weekly newspapers for not less than four weeks, and in the same connection required that the specifications upon which the bids were to be submitted should be of record at least four weeks, the. legislative intention manifestly was that these periods of time should be concurrent. The four weeks during which the advertisement must be published, are the same four weeks during which the specifications must be of record; to fix one is to determine the other. The requirement as to the specifications is that they must be of record and open to the inspection of all persons for at least four weeks before the time appointed for the opening of the proposals. This requirement would not be met by having the specifications of record for months before if they were permitted to be withdrawn from the record during any part of the last four weeks immediately prior to the opening of the bids.</p> <p>The commissioners have a discretion to place the specifications of record and keep them open for inspection for a longer period, but they must do those things during the last four weeks. The requirement as to the specifications is not that they shall be of record for a certain number of days in the week, they must be of record every day of the four weeks; that is, full twenty-eight days immediately prior to the opening of the bids. This determines the four weeks during which the public advertisement of the invitation to bidders must be printed in the weekly newspapers. A weekly newspaper, regularly issued, must necessarily be printed four times, that is it must have four publications within those four weeks. The commissioners have a discretion to advertise for a longer period, but no antecedent advertisement could excuse the failure to advertise weekly during the last four weeks immediately prior to the day upon which the bids are opened.</p> <p>The relation of the things required to be done by this statute to each other, the manifest intention that the publication shall be during the same period that the specifications are on file, and the clearly defined purpose that the latter period must be the four weeks ending with the day before the proposals are opened, lead us to the conclusion that the period during which the advertisement required by this statute must be printed in two weekly newspapers, for four weeks, is the last twenty-eight days prior to the opening of the bids. Computing backward from July 9, 1903, it appears, that, under the undisputed facts of this case, the advertisement was regularly published in two weekly newspapers during each week of said period. This answered the requirements of the statute. The invitation to bidders must be published weekly, four times, in two weekly newspapers, but the first publication is not required to be twenty-eight days before the opening of the bids. The period during which the specifications are required to be of record must determine the days upon which the weeks ai’e to be considered as beginning and ending, for the purposes of this statute.</p> <p>The judgment is affirmed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Poor laws—Poorhouse—Aeis of April 4, 1870, P. L. 834; June 4, 1879, P. L. 78 and April 19, 1895, P. L. 38.</p> <p>Neither the local Act of April 4, 1870, P. L. 834 nor the general Act of April 19, 1895, P. L. 38, apply to the erection of a poorhouse on a contract made for the Clarion county poor district by the county commissioners under the general Act of June 4, 1879, P. L. 78.</p> <p>Under the Act of June 4, 1879, P. L. 78, the poor district, although coterminous with the county, is a separate quasi municipal corporation, and it acts through county officers merely for convenience of administration.</p>

<p>Appeal, Nos. 58 and 59, Oct. T., 1904, by plaintiffs, from order of C. P. Venango Co., Aug. T., 1902, No. 48, refusing to take off nonsuit in case of Daniel F. Kirchner, by his next friend Anthony Kirchner v. Oil City Street Railway Company.</p> <p>Trespass to recover damages for injuries to a boy fifteen years old, sustained while riding on the platform of a moving electric car. Before Criswell, P. J.</p> <p>The trial judge, on a motion to take off the nonsuit, filed an opinion in which he summarized the evidence as to the plaintiff’s capacity as follows :</p> <p>What is the evidence as to the capacity or want of capacity in Daniel F. Kirchner ?</p> <p>Dr. Coulter says that “ the boy was a good patient. He observed instructions carefully and did as he was told. ... I had full confidence in the boy to not run and jump, and felt safe in discharging the boy at that time.” “ Did you find the boy apt and intelligent and bright, able to understand your instructions ? ” “ Yes, sir; I think he is quite a bright little boy.”</p> <p>The father says that before the injury the boy used to go with him right along and assist about the oil wells, which the father was pumping, but that the boy was not as bright as a boy of his age ought to be, and that he couldn’t tell what time it was by a watch; that he never heard any complaints from anyone for whom the boy worked, and' that the boy brought his money home; knew when he got his money and got the right amount, and that he (the witness) never told any of the persons for whom the boy worked that he was dull; that he got along all right at school, but not as fast as he thought he should. The mother says that she does not think that he is as bright as some of the boys she has ; that it is hard to make him learn; that she doesn’t think he knows anything about care. On cross-examination she says that he can read and write, but don’t pick up and learn like other boys ; seems as though he couldn’t get along as fast as other boys; couldn’t keep up with his classes, but says she can’t tell in what way he isn’t as bright as the general run of boys. Aside from this it appears from the evidence of the boy that prior to the time of his injury he worked for a Mrs. Hunt in Oil City, and worked for a dairy company about a year and a half, delivering milk and butter to customers, collecting money, and getting 13.50 per week and boarding for his services. The mother further says that he went to work at Siverly when he was seven years old, and worked for about a year or a year and a half before he went to work for the dairy.</p> <p>jError assigned was refusal to take off nonsuit.</p>

Appeals, Nos. 79 and 103, Oct. T., 1904, by defendant, from judgment of C. P. Washington Co., Nov. T., 1903, Nos. 121 and.122, on verdicts for plaintiffs in cases of Josiah Patterson and Clara B. Patterson v. Pittsburg, Cincinnati, Chicago and St. Louis Railway Company. Trespass to recover damages for the deaths of John T. Patterson, husband of plaintiff, Clara B. Patterson, and Samuel W. Patterson, son of Josiah Patterson.

<p>Mechanic’s lien—Act of June 4, 1901, P. L. 431—Auditor’s findings of facts.</p> <p>A finding by an auditor that a structure constituted “ a substantial addition,” which should “be treated as a new erection,” under sec. 3 of the Act of June 4, 1901, P. L. 431, when such finding is based upon sufficient testimony and confirmed by the court below, will not be reversed by the appellate court in the absence of manifest error.</p>

Appeal, No. 168, Oct. T., 1904, by defendant, from judgment of O. & T. Allegheny Co., Dec. T., 1903, No. 37, on verdict of guilty of murder in the first degree in case of Commonwealth v. Reno Dardaia. Indictment for murder. The defendant entered a plea of guilty of murder and the testimony was submitted to the court to fix the degree. The court adjudged the murder as of the first degree and sentenced the prisoner to death. The opinion of the Supreme Court states the case.

<p>Appeal, No. 94, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., July T., 1903, No. 393, on demurrer to petition for quo warranto in case of Commonwealth ex rel. William Shore, Jr.,v. John Bradley.</p> <p>Demurrer to petition for quo warranto.</p> <p>The court filed the following opinion :</p> <p>The relator claiming to be lawfully appointed inspector of petroleum in Allegheny county, has filed a suggestion for a quo warranto against the defendant, John Bradley, who is in actual possession of that office, and to the answer of Bradley the relator has demurred.</p> <p>The question of law upon which the whole case is to be determined arises upon the proper construction and the validity of an Act of assembly of May 15, 1874, P. L. 189, which forbids the sale of refined petroleum unless the same shall have been subjected to a certain fire test, and that fire test shall be determined by an inspector, and that said “ inspector shall be appointed by the courts of common pleas, one in each county in the commonwealth, wherein said burning oils or fluids as before mentioned are manufactured; provided that in any county where there shall be more than one court of common pleas the said appointment shall be made by court No. 1 in said counties, and in any county wherein is situate a city of more than 300,000 inhabitants, in such case, in lieu of court No. 1, the appointment of inspector shall be made by the mayor of said city,” and then provides a penalty for sales made in contravention of the act.</p> <p>The defendant claims the office under an appointment made January 10, 1903, by the court of common pleas No. 1 of the county of Allegheny. The relator claims it by an appointment made May 9, 1903, by the mayor of the city of Pittsburg, and it appears from the pleadings that in the county of Allegheny, there is situate the city of Pittsburg, a city containing more than 300,000 inhabitants. It is not alleged that there is not in said county of Allegheny another city or cities containing that number of inhabitants. At the time of the appointment of defendant, there was no officer known as mayor of the city of Pittsburg, the chief executive officer of that city being at that time designated as city recorder under the provisions of the Act of March 7, 1901, P. L. 20, which act abolished the office of mayor in that city. The Act of April 23, 1903, P. L. 284, is entitled “ an Act changing the title of the chief executive officer in cities of the second class from City Recorder to Mayor.” The body of the act follows the title, adding, however, “ But this shall in no way change the power or duties pertaining to such office or offices.”</p> <p>At the time of the passage of the act in question, there was but one county in the state in which was situate a city of more than 300,000 inhabitants, and that city was coterminous with the county. There wei'e two counties in which there were more than one court of common pleas, axid the constitution provided for the erection of other courts of common pleas by the legislature from time to time. The proviso in question directs that in axiy county where there shall be more than one court of common pleas, the appointment shall be made by court No. 1, and in any county “ wherein is situate ” a city, etc., it shall be made by the mayor. While it is no doubt true that generally words in the present tense used in provisions such as those of this act are ordinarily to be interpreted to include the future or to speak as of the time when the application of the act is called for, yet if such interpretation would give rise to anomalous situations such as could not have been in contemplation of the legislature, and the words are fully suited by application to the state of affairs existing at the time of the passage of the act, we are of the opinioxi that it is not necessary or proper to interpret thexn so as to produce such results. It is plain that as the city of Pittsburg is by no means coterminous with the county of Allegheny, and that county, in fact, contains another large city of the same class, and a third city, which with the addition of contiguous territory may at any time be raised to that class, and contains a great number of inhabitants, that it is quite possible there may be two or even three cities in the county of Allegheny answering the description of the proviso. How, under the relator’s contention, an inspector of petroleum could be appointed with two or three cities of the required size in existence is not very obvious, and the sale of petroleum in the county of Allegheny would therefore be entirely prevented. Considering these circumstances, and the fact which we think is entitled to considerable weight, that the legislature has used the words “shall be” in reference to the courts of common pleas and the word “ is ” in reference to the city of 300,000 inhabitants in the same sentence, we are of opinion that the proviso as to the appointment by the mayor of the city is to be confined to those cities which answered the description at the time of the passage of the act, and does not, therefore, apply to the county of Allegheny, which, so far as appears by the pleadings, contained no such city at the time of the passage of the act. W e deem it unnecessary, therefore, to discuss the other questions raised on the argument.</p> <p>The demurrer is therefore overruled and judgment is entered for the defendant with costs.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 102, Oct. T., 1904, by defendant from judgment of C. P. Nó. 8, Allegheny Co., Feb. T., 1900, No. 712, on verdict for plaintiff in case of Michael Heuber v. Consolidated Traction Company. Trespass to recover damages for personal injuries. Before Evans, J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $3,122. Defendant appealed.

Appeal, No. 54, Oct. T., 1904, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1901, No. 158, dismissing bill in equity in case of S. J. Macfarren and A. G. Hamm, trading as The Realty Company v. Horace G. Gallinger. Bill in equity for an account. From the record it appeared that plaintiffs were employed by the defendant to sell lots, and that the agency was terminated for the cause stated in the opinion of the Supreme Court.

<p> Vendor and vendee—Statute of frauds—Memorandum in writing. </p> <p>An owner of land executed a paper in the nature of an option in which he appointed an agent to sell the land. He knew at the time that the person whom he appointed was also the agent under a special employment of the person who subsequently became the purchaser. Within the time limit of the option the agent by letter accepted the property on behalf of the purchaser. Held, that the papers constituted a sufficient memorandum in writing within the meaning of the statute of frauds.</p>

<p> Will—Personal property—Real estate—Conversion—Intestacy. </p> <p>While a positive testamentary direction to sell real estate operates as a conversion, it does so only in furtherance of testator’s intent, and where it would impede rather than aid such intent no such effect would be given to it.</p> <p>Testatrix bequeathed one half of her estate as personal property on certain conditional limitations to her grandchild and sole heir at law and the other half of her estate as personal property to her niece, absolutely, without mentioning or enumerating any kind or class of personal property. By a subsequent clause of the will she directed that her real estate be sold by her executor and converted into money, and after the payment of a stipulated sum for a tombstone and certain specific legacies, directed that one half of the proceeds or balance go to the grandchild upon the same limitations qualified without any further directions as to the other half. Held, that the bequest to the niece of one half of the personal property absolutely did not cover the proceeds of one half of the real estate, and that as to this testatrix died intestate.</p>

Appeal, No. 84, Oct. T., 1904, by plaintiff from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 56, dismissing bill in equity, in case of T. Brent Swearingen, Assignee of Cochran Fleming v. Theodore N. Barnsdall. Bill in equity for discovery and for an accounting of profits from the operation of oil and gas wells.

Appeal, No. 112, Oct. T., 1904, by defendant, from order of C. P. No. 1, Allegheny County, Dec. T., 1901, No. 135, discharging rule to open judgment in case of E. E. Cruzan v. C. A. Hutchison. Rule to open judgment. Before Macearlane, J. The facts sufficiently appear by the opinion of the Supreme Court. Error assigned was the order of the court discharging the rule to open the judgment.

<p>Appeal, No. 104, Oct. T., 1904, by defendant, from judgment of O. P. Cambria Co., June T., 1903, No. 248, on verdict for plaintiff in ease of Catherine Burns v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before O’Connor, P. J.</p> <p>Defendant presented, inter alia, the following points:</p> <p>4. That the city of Johnstown did not have authority to require safety gates to be erected and operated on each side of the road, inasmuch as the southerly side thereof was in Lower Yoder township, and the court is requested to strike out the testimony relating thereto. Answer: The only effect this testimony could have is that of showing the dangerous character of the crossing. That the city of Johnstown attempted to make .the defendant company erect safety gates there we say could only go to indicate to you the dangerous character of the crossing. You have no right to hold the railroad company responsible for not erecting safety gates because they would have been one means of warning persons about to go over the crossing of the dangerous character of the crossing. The city could not have compelled the railroad company to have erected safety gates in Lower Yoder township, because that territory is not within the jurisdiction of the city of Johnstown. This ordinance can only go to show the dangerous character of the crossing, and we submit this testimony to you for that purpose only. [4]</p> <p>7. That'under all the evidence the- verdict should be for the defendant. Answer: We refuse that point. As we view the case, the question is purely a question for the jury, and if we were to take the case from the jury we feel that we would be guilty of error. There are times when it becomes the duty of the court to say that the plaintiff has failed to introduce such evidence as would fasten responsibility upon the defendant, and when it would be proper to direct a verdict for the defendant or to direct a compulsory nonsuit because of the insufficiency of the testimony introduced, which would amount to the same as if no evidence at all were introduced. Therefore, we refuse this point. [7]</p> <p>8. That positive proof that the whistle was sounded at the usual place and that the bell was being rung is of higher value than negative testimony-of witnesses who did not hear it, and it should prevail.</p> <p>The Court: In this connection we say to you that if you find, from the evidence, that the whistle was blown and the bell rung, at such place and in such manner that the decedent must have heard it and been warned, then, of course, it does not matter how many people did not hear it; but if the whistle was blown, as testified to by the witnesses, at a place where it is usual to blow the whistle, and the bell was rung, if the warning did not reach that crossing and could not be heard by persons going over it—was not of such character as the law contemplates—if the warning was not calculated to warn and did not warn persons passing over, it was unavailing. That question is entirely for you. If you find that the whistle was sounded after the train crossed the Morrellville crossing, and yet persons going over the Brownstown crossing could have heard and must have heard it, it was not necessary to have the whistle blown again. The fact wo want to impress you with is whether the whistle, which evidently was sounded after leaving “ SX ” tower that morning, must have reached the ears of persons going over the Brownstown crossing, for if the persons going over there took their chances there could be no recovery. On the other hand, it was the duty of the persons conducting the train to give such warning as would be effective, and if they did not give such warning the defendant company would be responsible for their negligent acts. [8]</p> <p>Verdict and judgment for plaintiff for $12,000. Defendant appealed.</p> <p>Errors assigned, among others, were (4, 7, 8) above instructions, quoting them.</p>

<p>Appeal, No. 2, Oct. T., 1903, by plaintiff, from order of O. P. Venango Co., Jan. T., 1903, No. 39, refusing to take off nonsuit in case of Scott Harvey by Ms next friend, Thomas B. Harvey v. Erie Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Criswell, P. J.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 3, Oct. 1'., 1903, by plaintiff, from order of C. P. Venango Co., Jan. T., 1903, No. 39, refusing to take off nonsuit in case of Thomas B. Harvey v. Erie Railroad Company.</p>

<p> Negligence—Railroads—“Stop, look and listen”—Contributory negligence. </p> <p>The rule that a person must stop, look and listen before going upon tracks of a railroad, is not a rule of evidence, but a rule of law peremptory, absolute and unbending.</p> <p>Plaintiff while riding in a one-horse buggy with the side curtains down, without stopping and looking for the approach of a train, drove at a slow trot on the tracks of a railroad in a city as the safety gates were coming down. These gates were twenty-five feet apart. The first struck the top of.the buggy and the second was fully down when the horse reached it. The buggy was struck by a shifting engine on the second track almost immediately after the horse stopped. The time between the stopping of the horse and the collision was estimated by the plaintiff as a second or a second and a half; by one of the witnesses as a quarter of a minute, and by another witness the collision was said to have occurred immediately after the stopping. Seventy-four feet from the crossing the plaintiff was passed by a mail carrier in an open cutter. When this man was at the edge of the tracks and thirty or forty feet in advance of the plaintiff, the flagman gave a signal to come on. He went on and crossed in safety. The plaintiff was unable to say that the signal had been intended for him and only that it was given in his direction. At any point within twenty feet of the tracks the plaintiff had a clear view of them for 700 feet in the direction from which the engine came. The gates were being lowered as he drove on the crossing but he did not observe them until the horse was on the first track. Held, that the plaintiff was guilty of contributory negligence inasmuch as he did not stop, look and listen and that 'a nonsuit was properly entered.</p>

<p> Negligence—Damages—Loss of earning power—Evidence. </p> <p>It is error to submit to a jury tile loss of earning power as an element of damages in the absence of any proof upon the subject. But such proof need not be clear and indubitable to entitle it to go to the jury. Except where a fixed compensation is paid for services rendered, there can be no certainty. The age of the person, his situation in life, his condition of health and habits of industry, and profits derived from the management of a business resulting from the personal attention and labor of the owner as distinguished from profits arising from invested capital, may in proper cases be considered in determining earning power.</p> <p>In an action to recover damages for personal injuries it appeared that the plaintiff was engaged in the business of producing oil. lie owned a number of leases of oil lands upon which he was operating, and was also the treasurer of gas companies in which he was interested. His whole time and attention were given to the management of his oil business and to assisting in the management of the gas companies. His injuries it was claimed entirely disabled him from attending to any business. A witness shown to have a special knowledge of the plaintiff’s business and of the manner in which he conducted it and the time and attention given to it testified that his services were worth from 15,000 to $10,000 a year. The instruction in the charge was that while this testimony was meager and indefinite it should be considered by the jury, but they were cautioned that unless satisfied that from the whole testimony they could reach a proper conclusion as to the loss of earning power, they should make no allowance therefor. Held, that the instruction was proper.</p>

<p>Constitutional law—Title of statute—Statutes—Act of May 3,1878, P. L. 41.</p> <p>The Act of May 3, 1878, P. L. 41, entitled “A supplement to an act entitled ‘An act to authorize the acquisition by the several counties of this commonwealth, for the use of the county, of bridges, erected over rivers, creeks and rivulets, and for the abolition of tolls thereon,’ approved the eighth day of May, 1876, designed to amend the third section of the said act, and also to amend the ñrst proviso of the fifth section of said act, so that not more than fifteen thousand dollars shall be paid by any one county for the purchase of any such bridge,” does not violate section 3, article 3, of the constitution of Pennsylvania relating to the title of statutes. The title of the act gives sufficient notice to the county commissioners of the amendment which takes away from them the right of approval of the report of the viewers.</p>

<p> Equity—Bill for partition—Decree pro confesso. </p> <p>Where on a bill in equity for partition it appears that three of the defendants, although represented by counsel of record, did not demur or answer, and it further appears that on an application to open a decree pro confesso entered against them, their counsel, shortly after an amended bill had been filed, had notified them that he could no longer represent them since he represented other parties in the suit adverse to their claims, and it also further appears that the defendants took no steps to employ other counsel, the court cannot as a matter of right, but only as a matter of grace, permit the defendants, on the motion to vacate the decree, to go into a defense on the merits.</p> <p> Evidence—Assignment to make party competent witness. </p> <p>An assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends, and is ineffectual to accomplish that purpose.</p> <p> Contract—Vendor and vendee—Option. </p> <p>An agreement to purchase land with a stipulation that if the purchaser does not make the payments provided by the agreement within the limits of the times specified, the agreement is to be null and void, and all parties released from liability, is a mere option, and if the purchasers do not make payments within the times specified they have no interest in the land.</p>

<p>Appeal, No. 183, Jan. T., 1904, by-defendant, from order of C. P. No. 1, Phila. Co., March T., 1904, No. 1525, granting peremptory mandamus in ease of John McClintock, Jr., v. Young Republicans of Philadelphia, Philip H. Johnson, President, and George L. Harvey, Corresponding Secretary.</p> <p>Petition for mandamus. Before Brégy, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned among others was in issuing the writ of peremptory mandamus.</p>

<p>Title—Disputed title—Beal estate—Act of June 10, 1893, P. L. 415— Ejectment.</p> <p>On a petition under the Act of June 10, 1893, P. L. 415, entitled “An act to provide for the quieting of titles to land,” the court cannot summarily determine the title to the property on the application for the issue, whether the dispute is over facts or the law arising upon the construction of a written instrument.</p> <p>Whenever the adverse claimant relies upon possession, actual or constructive, to oust the jurisdiction of the court under the act, he must establish it without requiring the court on the application for the issue to first adjudge and sustain the validity of his title.</p> <p>Where the petition sufficiently avers the petitioner’s claim of title and right of possession, and the respondent’s denial thereof, and the parol testimony shows that the petitioner and those under whom he claimed title had exclusive possession of the land for many years, the court should grant the issue prayed for by the petition.</p>

<p> Vendor and vendee—Purchase money—Parol contract. </p> <p>A buyer can recover from the seller for breach of a parol contract to sell and convey land so much of the purchase money as was actually paid.</p> <p> Vendor and vendee—Purchase money—Parol contract—Bankruptcy. </p> <p>The refusal by a vendor in a parol contract for the sale of land to execute and deliver a deed, excuses the vendee from the necessity of tendering payment in order to recover the money paid.</p> <p>In an action by a trustee in bankruptcy to recover money paid by the bankrupt on account of a parol contract for the purchase of land, the plaintiff is entitled to recover where it appears that the defendant had refused to make a deed for the land to the trustee, and that after the suit was brought, but before the trial he had leased the land to another party.</p>

<p>Appeal, No. 15, Oct. T., 1904, by plaintiff, from decree of O. P. Somerset Co., Equity Docket 1908, No. 7, dissolving an injunction in case of Mary A. Jenkins v. Pittsburg & Connellsville Railroad Company.</p> <p>Bill in equity for an injunction. Before Kooseb, P. J.</p> <p>From the record it appeared that the plaintiff, a married woman, on November 6, 1901, entered into a written option, in which she was joined by her husband, giving the defendant company a right to purchase five acres of her land for a stated price within sixty days. The option was accepted by the defendant within the time named, and entry upon the land was made. Subsequently disputes arose as to the terms of the deed to be executed by the plaintiff, and plaintiff repudiated her agreement of option on the ground that she had not acknowledged it.</p> <p>The court granted a preliminary injunction which it subsequently dissolved.</p> <p>Error assigned amongst others was decree dissolving the injunction.</p>

<p> Affidavit of defense—Practice, C. P.—Affidavit by stranger. </p> <p>When a defendant puts in a stranger’s affidavit of defense, it must show upon its face sufficient reason why it is not made by the defendant himself; and that a real disability existed which prevented him from making it; and the circumstances giving rise to the disability.</p> <p>Where a party on the record is unable to make the affidavit of defense by reason of sickness or absence, his clerk, or anyone who has knowledge, may make the affidavit, and a stranger who is interested in the defense of a suit may make the affidavit of defense.</p> <p>In an action against a corporation affidavits of defense made by strangers to the record will bo sustained, where it appears on the face of the affidavits that the affiants were stockholders of the corporation, that they were consequently parties in interest, that they were the only persons having knowledge of the facts, that there were no corporate officers, and that in making the affidavits they acted as agents of the defendant.</p>

<p> Negligence—Natural gas—Explosion—Question for jury. </p> <p>In a case against a gas company to recover damages for destruction of a building and machinery by lire resulting from the explosion of natural gas, it appeared that when the fire in the building subsided, gas was seen burning along the basement wall three feet from the ground for a distance of twenty feet and in such quantities that the flames extended six feet in height. This gas came from the defendant’s high-pressure line of pipes, which was under the surface of the public street and within six feet of the basement wall. Opposite the place where the gas was burning, the defendant had constructed a gate to control the flow of gas. The gate was inclosed in a box which was covered with a cast-iron lid. The gas escaped through a crack in the gate about a foot in length and was forced through the intervening ground under the cement pavement into the plaintiff’s building. Whether the crack was old and the gate had been repaired by placing cement around it, or whether it was new and had been caused by the explosion, whether there was a sufficient number of holes in the lid of the box, whether the holes were open or plugged, and whether it was necessary to provide perforated lids to permit the escape of gas which might leak at the gate or escape at other places along the line and find its way into the box, were all disputed questions at the trial. Held,, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 75, Oct. T., 1904, by defendant, from order of C. P. Butler Co., Dec. T., 1903, No. 54, discharging rule to stay and set aside execution in case of Joseph Weist v. Mary Wuller, Johanna Wuller and John J. Kohler, Assignee for creditors.</p> <p>Rule to stay and set aside execution. Before Galbreath, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order discharging the rule.</p>

<p> Deed—Separation of surface from minerals—Reservation—Coal—Estate in fee simple—Adverse possession. </p> <p>Where a person conveys land, reserving to himself coal thereunder, the grantee takes an estate in fee simple in the surface, and the grantor reserves to himself an estate in fee simple in the coal. Notorious hostile possession kept up for twenty-one years against either will give title to an intruder, but no permissive intrusion nor mere unresented occasional trespasses will affect the stability of the title of either,</p> <p> Deed—Reservation of coal—Abandonment—Estoppel—Adverse possession. </p> <p>A person conveyed land reserving the coal thereunder. The deed was duly recorded. Some years afterwards the grantor left the state and never personally operated or mined the coal. No taxes were assessed separately against the coal, and whatever taxes were assessed were paid by the owners of the surface. The owners of the surface and other parties mined and took away wagonloads of coal, but this was done only at intervals, and there was never any continuous mining operations. There was some vague testimony by an aged witness that the owner of coal had witnessed an agreement of sale by his grantee without mentioning the fact of the existence of the reservation; but the agreement was not produced in evidence, and for all that appeared the reservation may have been noted in the agreement. Another witness testified that the owner of the coal had said before he left the state that all he had left in the county was a certain small lot and that this was claimed by another person. Held, that the evidence was insufficient to establish an estoppel, to show an abandonment, or to establish in anyone title by adverse possession against the owner of the coal.</p>

<p>Appeal, No. 183, Oct. T., 1904, by-defendant, from judgment of O. P. Butler Co., Sept. T., 1904, No. 2, on verdict for plaintiff, in case of Edward J. Quigley v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Galbreath, P. J.</p> <p>At the trial it appeared that the negligence of the defendant was admitted. The case turned solely upon the question of damages.</p> <p>The portion of the statement of claim relating to the question of damages was as follows:</p> <p>By reason of and as a result of such collision and wreck, the plaintiff was thrown backwards with great force and violence against the interior frame or woodwork, the seats and the floor of the passenger car or coach in which he was being carried, thereby causing and inflicting upon his person, severe concussions, cuts and bruises, rendering him for a time unconscious, and causing him great and excruciating physical and mental pain and suffering and doing great and permanent damage to his person and nervous system, injuring him so severely internally and in and about his head and spine and spinal cord and the bones at the base of his spinal cord that he was unable to sit upright or even leave his bed for several months, and is now able to leave the same only with the use of body supports or braces, and even then is able to walk only with great pain and difficulty and only for short distances ; is unable to use his eyes in reading and writing, his eyesight and the nerves of his eyes being badly injured by the shock; cannot sleep quietly at night and suffers continually the severest physical and mental pain and anguish.</p> <p>6. That by reason of the injuries so sustained, the plaintiff has been rendered totally unfit for and incapable of performing the labors or duties of his said profession or business of an expert inspector of oil or any other business or occupation he may desire to follow, and has thereby suffered a damage of $90,000, and has been compelled also to pay large sums of money for medical attendance, medicine, nursing, traveling expenses, hotel fare, care and attention, to wit: $10,000.</p> <p>The court admitted under exception and objection evidence in detail relating to plaintiff’s physical condition after the accident. [1-4]</p> <p>Plaintiff was asked this question:</p> <p>Q. Since the accident have you been compelled to refuse any work? A. Yes, sir. Q. What, for instance? A. I have refused inspection of oil going to London.</p> <p>Object to what he might have gotten from some other person ; we object to it as incompetent.</p> <p>The Court: We will hear what work he has refused in order that the jury may understand something of the nature of the work and whether or not he was able to perform it, but as to what he could have received for the work I think we will not receive that. We will admit it on the proposition indicated for the present and hear you on the other later.</p> <p>Bill of exceptions sealed. [5]</p> <p>The court charged in part as follows :</p> <p>[Now, gentlemen, it is also said if there was a displacement of a single vertebra of the spine, it would be evidenced by the plaintiff’s inability to work. A number of physicians have given their experience that if there was a dislocation the plaintiff would not be able to walk, or at least very poorly; that it would impair his locomotion very materially. On the other hand, Dr. Brush testified that there came a case within his own observation where there had been a dislocation to some extent and the party did walk. Now, gentlemen, how is that ? If the one is theory and if theory is contradicted by facts, theories must always give way to facts. So that the question is one for the jury to determine as to the verity of opinions of physicians testifying on either side, and the determination of this question is wholly a matter for the jury.] [6]</p> <p>[Now, gentlemen, had Mr. Quigley recovered from that at the time of this accident ? It seems that at the time of the accident and sometime before it he had been performing his ordinary duties, and he says that morning when he left home he was a sound, well man or substantially so.] [7]</p> <p>[If, on the other hand, he did not perform any services from the time of the accident and it was given more as a gratuity, a gift on the part of the company, we say'that would not affect your consideration of the case, but he would be entitled to recover for lost earnings as though he had not received that gratuity or gift, because in a case of that kind a man’s friends may be as good as they see fit to be and may present him with such gifts as money or other valuables as they see fit, and yet not be charged in a case of this kind. It will be for you to determine whether he received it as salary for services rendered or as a mere gratuity or gift.] [8]</p> <p>Plaintiff presented these points:</p> <p>3. If the jury find that the plaintiff has rendered no services to his employer, the United States Pipe Line Company, since ■ the time of the accident, they are not to allow in mitigation • of damages any salary he may have received from his employer since the accident. Answer : We answer that by saying that it is affirmed, unless the jury find that the amount so paid to plaintiff was by way of compensation for services rendered by the plaintiff and not as a mere gratuity, as we have already explained in the general charge. [9]</p> <p>Verdict and judgment for plaintiff for $21,440. Defendant appealed.</p> <p>Errors assigned among others were (1-6) ruling on evidence, quoting the bill of exceptions ; (6-9) above instructions, quoting them; (14, 15) that the verdict was excessive.</p>

<p>Appeal, No. 302, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Feb. T., 1901, No. 207, on verdict for plaintiffs in case of James J. Daley and Hugh A. Daley v. George H. Wingert.</p> <p>Ejectment for a strip of land in DuBois Borough. Before Gordon, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on the point reserved.</p>

<p> Deed.—Covenant running with land—Notice. </p> <p>Where the owner of a city lot executes and delivers to the owner of an adjoining lot an agreement by which he gives the latter the right to insert beams in a wall which the former was about to build, and this agreement is expressly made a covenant running with the land, the.owner of the first lot cannot, ten years afterwards, and as against the grantee of the owner of the second lot who has taken title without notice of the agreement, declare the agreement void because of a failure of consideration.</p>

<p> Water companies—Eminent domain—Natural gas company—Condemnation of land already devoted to public use. </p> <p>Where a water company has been compelled to condemn land for a dam owing to a necessity growing out of the increase of population of the community which it was incorporated to serve, a natural gas company which had its pipes laid under the land condemned, by a prior agreement with the landowner, is not entitled to an injunction to restrain the taking of the land, where it appears that by the expenditure of a few hundred dollars either before or after the construction of the dam, the pipes could be removed to other land of the water company not covered by the dam.</p> <p>Under the Act of April 29, 1874, P. L. 73, clause 2 of sec. 34, as amended by the Act of May 16, 1889, P. L. 226, water companies have the power to condemn franchises and property held for public use, and are not limited merely to private property.</p>

<p>Appeal, No. 157, Oct. T., 1904, by plaintiff, from judgment of C. P. Lawrence Co., March T., 1902, No. 74, on verdict for defendant in case of City of New Castle v. Julia Maria Kurtz and Mary E. Clark et al.</p> <p>Trespass to recover the amount of a verdict rendered against plaintiff in an action for personal injuries. Before Wallace, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for defendants by instruction of the court. Judgment was entered on the verdict.</p> <p>jError assigned was in directing a verdict for defendants.</p>

Appeal, No. 161, Oct. T., 1904, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1903, No. 179, for defendants non obstante veredicto in case of James S. Watson et al. v. Albert J. Smith and Johnson C. Smith. Ejectment for land in Amwell Township.

<p>Appeal, No. 17, Oct. T., 1904, by-defendants, from order of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 991, making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of Lem S. Brock v. C. B. Lawton, alias Charles B. Lawton and W. B. Lawton, alias William B. Lawton.</p> <p>Assumpsit on an award of arbitrators.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal No. 66, Oct. T., 1904, by defendant, from judgmentofC. P. No. 1, Allegheny Co., Sept. T., 1902, No. 490, on verdict for plaintiff in case of William Welch and Charles E. Pool v. William A. Miller and Christ. S. O. Tinstman.</p> <p>Assumpsit for profits on a partnership transaction. Before MacFarlane, J.</p> <p>The court charged as follows :</p> <p>[This case turns upon a question of fact, was there a contract made in April, 1902, between these two plaintiffs and the two defendants, that the defendants would get an option on this farm near Stewart Station, the plaintiffs getting a purchaser and that they would divide the profits.] [1] Any arrangement that may have been made between these plaintiffs and Mr. Tintsman would not entitle them to recover unless Mr. Miller was brought into the transaction. If Mr. Tintsman merely agreed with these men to divide his profits or his commissions, then there would be no recovery here, because there is no evidence that he was an agent for Mr. Miller, and no evidence that would authorize you to find that he could speak for Mr. Miller. So that the conversations between Mr. Tintsman and Mr. Welch and Mr. Pool are, so far as Mr. Miller is concerned, only important here as they may throw light on all the circumstances, together with the conversations that Mr. Pool testifies to having occurred on their way up to the farm, the conversation with Mr. Miller. Those tilings taken together may satisfy you that Mr. Miller had made some such contract.</p> <p>The contention of the plaintiffs is that it was a division of profits in the resale of this property. The contention of Mr. Tintsman is that he was to divide his profits, or as he says, his commissions, or whatever words he used. He said he used the word “ commissions ” and it is argued by the defendants that this is a reasonable explanation of the whole matter and that that is all there was in it. The defendants give you various circumstances, and taking the whole case they have argued that the probabilities are that that was all there was in it; and particularly the course of conduct of Mr. Miller; that he acted as a man would who had no arrangement with anybody except Mr. Tintsman and that that was to pay him a commission, and that whatever arrangement Mr. Tintsman might have made with other people was none of his business.</p> <p>On the other hand, Mr. Pool, for the plaintiffs, testified that he talked with Mr. Miller on the way up to the farm, and that Mr. Miller said to him something to this effect, that he understood that the arrangement between them was that he, Pool, would get a purchaser and “ we are to get the option and we will divide.” That, if believed by you, is evidence from which, taken in connection with the other matters, you might find that there was such a contract. It is necessary in order to make out a contract, that the people should agree, that their minds should meet on a common basis, and if Mr. Miller was talking about the profits the same as Mr. Pool was, that would be sufficient to make a contract; their minds would meet then on a common footing. But if such conversation did take place and Mr. Miller was talking about the division of commissions between Mr. Tintsman and these men, you will see that they would not have understood each other and their minds would not have met on a common basis.</p> <p>That is practically all there is in it. Mr. Tintsman says that is was about half of his profits, and these men say that it was about half of the whole profits made by all of them. The general surroundings of the case, all of the circumstances, the appearance and manner of the witnesses are entirely for you. It is not a question whether these men earned their commission or not; it is not a question whether they did more work than Mr. Miller and Mr. Tintsman. That has nothing to do with it. Itis a mere question of a bargain. Whether it turned out to be a good bargain or a bad bargain has nothing to do with it. Did these people agree as claimed by the plaintiffs ? If they did not, your verdict must be for the defendants, because the question of commissions is not in this case. If that was all there was in it these men have their remedy and can claim their commissions. They are claiming here on a different contract, so that you cannot say, “Well, they are entitled to at least $200,” because that would be for another case. So that your verdict will be either for the plaintiffs in the amounts which counsel will give you, whatever it is, with interest, or it would be a straight verdict for the defendants.</p> <p>[Counsel for defendants asks me to decide this case and not leave it to the jury. They have asked me to give peremptory instructions that under all the evidence the verdict should be for the deféndants. Bub this is refused because I think the case is properly in your hands and not in mine.] [8]</p> <p>Verdict and judgment for plaintiff for $3,083.70. Defendants appealed.</p> <p>Hrrors assigned were (1, 3) the instructions of the court as above.</p>

<p>Appeal, No. 71, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1901, No. 598, on verdict for plaintiff in case of Mary J. Reed v. Pittsburg, Carnegie & Western Railroad Company.</p> <p>Appeal from report of jury of view. Before Brown, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>-Errors assigned were (1, 2) rulings on the evidence set forth in the opinion of the Supreme Court; (3) the whole charge, quoting it; (4, 5) that the court erred in not setting aside the verdict as excessive.</p>

<p>Appeal, No. 62, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T\, 1902, No. 144, on verdict for plaintiff in case of Luther Kennedy v. Consolidated Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>, The circumstances of the accident are detailed in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,267. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 101, Oct. T., 1904, by plaintiff, from decree of O. C. Westmoreland Co., Nov. T., 1895, No. 18, dismissing exceptions to sheriff’s schedule of distribution in case of Lucinda H. Walters v. Mary Steele and A. J. Steele.</p> <p>Petition for the sale of land to pay the arrearages charged on the land. Before Steele, P. J.</p> <p>From the record it appeared that the prayer of the petition was granted, and that at the sheriff’s sale the land was sold for $8,500. Of this sum $1,637.48 .was distributed to Lucinda H. Walters, the annuitant, and the balance $1,862.52 to Mrs. Mary Steele, the defendant, hi the execution. Lucinda H. Walters filed exceptions to the sheriff’s schedule of distribution to the effect that the balance should remain a fund in the control of the court to secure to her the payment of her annuity.</p> <p>The court dismissed the petition and confirmed the sheriff’s schedule of distribution.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 176, Oct. T., 1904, by-defendant, from judgment of C. P. Washington Co., Aug. T., 1904, No. 62, on case stated in suit of James W. McCullough et al. v. Johnetta Coal Compaüy.</p> <p>Case stated to determine the marketable title to real estate.</p> <p>The plaintiff claimed title from Alexander Horn. Mary Horn, mother of Alexander, by her will directed as follows :</p> <p>“ Fifth—I direct that my executor shall collect the notes due me from various persons and invest the money derived therefrom in land, the rents and profits of this land to go to my son, Alexander Horn, and my executor shall have a period of four or five years to collect and invest the money aforesaid.</p> <p>“ Sixth—Should my son, Alexander Horn, die without issue, then the land bought with my money shall be sold and the proceeds divided among my brothers and sisters or other heirs, but should my son have heirs or issue, then this land shall be his and his heirs.”</p> <p>After the executor had bought the land a son was born to Alexander Horn.</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p> Corporations—Contract—Good will—Agreement among stockholders to purchase stock of retiring member. </p> <p>Where there is an agreement among the stockholders of a corporation by ■which each one acquires a right by way of option to purchase the shares of anyone who dies or may withdraw from the business at a “fair price or book value thereof,” to be ascertained by arbitrators, the value of the good will of the business is to be taken into consideration in ascertaining the price at which the shares may be purchased.</p> <p>In such a case where the representative of a deceased member refuses to recognize the right of the remaining members to exercise the option provided for in the agreement, and there is a consequent delay, the remaining members after the right has been determined and the values of the shares fixed, are entitled to the dividends declared in the meantime, while the .estate of the deceased stockholder is entitled to the value of the shares ascertained as if at the time of his death together with interest at six per cent from that day.</p>

Appeal, No. 99, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 538, on verdict for defendant in case of Annie J. Robinson v. Jane Powell. Assumpsit to recover money bad and received. Before MacEARLANB, J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 115, Oct. T., 1904, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 585, dismissing bill in equity in case of D. F. Henry, and Annie E. Henry, his wife, in right of Annie E. Henry v. Sarah Black, The Union Realty Company, Robert J. Coyle, Jr., and Andrew W. Mellon.</p> <p>Bill in equity for specific performance. Before Shafer, J.</p> <p>Demurrer to bill.</p> <p>The material averments of the bill are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 128, Oct. T., 1904, by defendant, from order of O. P. No. 1, Allegheny Co., Jutie T., 1904, No. 688, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Arthur Machín et al. v. Prudential Trust Company. Assumpsit on a contract of guaranty. Rule for judgment for want of a sufficient affidavit of defense. The material averments of the affidavit of defense are set forth in the opinion of the Supreme Court.

<p>Appeal, No. 56, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1902, No. 668, on verdict for plaintiff in case of Anna M. Wescott v. J. A. Crawford.</p> <p>Ejectment for land in the twenty-sixth ward of the city of Pittsburg. Before Kennedy, P. J.</p> <p>At the trial the defendant offered in evidence a written article of agreement set forth in his abstract of title, dated February 1, 1902:</p> <p>“ Between Phillips & Mittenz wey estate of the county of Allegheny, and state of Pennsylvania, parties of the first part, and Horace G. Mehring of Pittsburg, Pennsylvania, party of the second part.</p> <p>“ Witnesseth, that the said parties of the first part, for the consideration hereinafter mentioned and contained, agree to sell and convey unto the said party of the second part, his heirs and assigns, all that certain plot of ground, at the foot of twentieth street, fronting on the Monongaliela river, twenty-sixth ward, Pittsburg, Pa., 200 feet by 400 feet, more or less.</p> <p>“ All that certain contract with Armour & Co., of S. S., Pittsburg, Pa., as dumping ground, for the sum of $50.00 to "be carried out by the party of the first part, the said party of the second part to receive the said sum of $50,00,</p> <p>“ In consideration whereof the said party of the second part agree to pay to said parties of the first part therefor, the sum of twenty-five thousand ($25,000.) dollars in the manner following, to wit: $500 on signing this agreement, $9,500 on delivery of deed. Balance to be secured by bond and mortgage on premises, $15,000 on or before August 1, 1902.</p> <p>“ And upon payment of the said sum, the said parties of the first part, will, at their own proper cost and charge, make, execute and deliver to the said party of the second part, a good and sufficient deed for the proper conveying and assuring of the said premises, in fee simple, free from all encumbrance, and dower, or right of dower, such conveyance to contain the usual covenants of Phillips & Mittenzwey estate, by deed of warranty.</p> <p>“ And it is further agreed by and between the said parties that possession of said premises shall be delivered to the party of the second part, his heirs or assigns, on the first day of February, 1902, until which time the party of the first part shall be entitled to have and receive the rents, issues and profits thereof.</p> <p>“ In witness whereof, the parties to this agreement have hereunto set their hands and seals, the day and year first above written.</p> <p>“ Mjbs. Mary H. Phillips. [Seal]</p> <p>“Admx. John O. Phillips Estate. [Seal]</p> <p>“ Wm. Mittenzwey Estate. • [Seal]</p> <p>“ Per Anna M. Wescott.</p> <p>“ Horace G. Mehring. [Seal]”</p> <p>Objected to, (1) because it is void for want of proper parties, parties being the Phillips and Mittenzwey estate of the county of Allegheny, state of Pennsylvania, parties of the first part, and Horace G. Mehring, of Pittsburg, Pennsylvania, party of the second part; (2) because Anna M. Wescott is not shown to have had any authority to appoint her brother, by a transfer of his interest and conveyance of his interest, as an heir or by any agreement to convey; nor had she any authority as administratrix of her late father’s estate to convey, or enter into an agreement to convey, the real estate of her late father, and she could not, and did not bind herself in her own capacity, because the agreement shows on its face that she was a married woman, and that her husband does not concur or join in the agreement, and is otherwise incompetent and irrelevant.</p> <p>Mr. Rodgers: This offer to be followed by evidence that Mrs. Wescott agreed, verbally, to put Crawford into possession, and that in pursuance to that he entered into possession and made improvements on the property worth in the neighborhood of $25,000. That the said Wescott knew of the entry by Crawford on the premises, and knew of the improvements being made from time to time, that she received a portion of the purchase money; that she afterwards, as appears by the plaintiff’s abstract, issued an execution upon a judgment against John Mittenzwey, her brother, a co-tenant, and that the property was knocked down to the said Woodward at sheriff’s sale, and that he was in on the purchase and trustee for Mrs. Wescott. And also that John D. Mittenzwey knew of the making of the contract already offered, the terms thereof, and consented thereto, and that he knew of the entry by Crawford under the agreement and the improvements being made by Crawford from time to time.</p> <p>Objected to as incompetent for the reason that Mrs. Wescott, being confessedly a married woman, can be affected by the matters held as a ground of estoppel.</p> <p>3. Because the agreement being void on its face, made by parties that'could not bind the estate or themselves, or John Mittenzwey and that they did not, in fact, bind the estate or themselves or John Mittenzwey. That defendant was bound to know that he made his improvements at his peril. Objections sustained. Counsel for defendant excepts. Exceptions allowed and bill sealed. [1]</p> <p>Counsel for defendant renewed preceding offer, adding thereto the offer to prove that the husband of Mrs. Wescott was present at time of the making of the agreement and assented thereto, and h”e also agreed to give the defendant, Crawford, possession of the property; and that in pursuance of that agreement and that of Mrs. Wescott, possession was taken, and that the husband had the same knowledge of the improvements being made upon the property as offered to be proved in the offer relating to his wife. Objected to as incompetent. Objections sustained. Counsel for defendant excepts. Exceptions allowed and bill sealed. [2]</p> <p>The court charged as follows:</p> <p>[My instructions, to you are that under the evidence in this case your verdict should be for the plaintiff.] [3]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1-2) rulings on evidence, quoting the bill of exceptions; (3) the charge of the court.</p>

Appeals, Nos. 49 and 50, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Noy. T., 1901, No. 275, on verdict for plaintiff in case of Armand Boulfrois, Sr., and Armand Boulfrois, Jr., by his next friend, Armand Boulfrois, Sr., v. United Traction Company. r Trespass to recover damages for personal injuries. Before Kennedy, P. J. At the trial it appeared that Armand Boulfrois, Jr., was injured while in the act of getting on a moving electric summer car.

Appeal, No. 80, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. 300, for defendant non obstante veredicto in case of Werneberg, Sheehan & Co. to use of Peoples National Bank of Pittsburg v. City of Pittsburg. Assumpsit on a municipal contract. Before Frazier, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 97, Oct. T., 1904, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 257, making absolute rule for judgment, for want of a sufficient affidavit of defense in case of Greater Pittsburg Real Estate Company v. John D. Riley.</p> <p>Assumpsit on a stock subscription.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The material portion of the affidavit of defense was as follows :</p> <p>This defendant was one of a number of men, among whom were William D. Beatty, now president of the plaintiff company, who entered into a verbal agreement, each with the other, to organize a real estate company, and their agreement was that each should invest $250 in the capital stock of the said company. •</p> <p>At the time of the organization of said company, when the parties met in the office of their counsel, Stone & Stone, it was mutually agreed that the nominal capital stock of the company should be $25,000, but the understanding and agreement as to the amount of capital stock to be taken by each of the members of the corporation, among whom was this defendant, remained unchanged.</p> <p>It is true that upon the face of the application for letters patent, this defendant appears to be a subscriber for 100 shares of the capital stock of the Greater Pittsburg Real Estate Company, but avers that the amount set opposite his name was done arbitrarily by the counsel for the plaintiff company, and in the placing of said stock he acted as a trustee for the Greater Pitts-burg Real Estate Company, and that after the issuance of said charter, the entire number of shares, except the five shares which this defendant did agree to take and did take and pay for, was left in the treasury of the Greater Pittsburg Real Estate Company where it belonged, according to the understanding and agreement of all parties.</p> <p>This deponent further avers that the understanding had between the stockholders was confirmed at a meeting held subsequent to the organization and incorporation of the Greater Pittsburg Real Estate Company, when a resolution was passed, as shown by the minutes of said company,, authorizing W. J. Stewart to make sale of the treasury stock, being all the stock, except the thirty shares taken by all of the six original incorporators, of whom this defendant was one, and fifteen shares already sold to Bealor, Peppel and Bailey, and treating all of the balance of said stock as treasury stock. This resolution was passed by the consent and sanction of the stockholders of the plaintiff company.</p> <p>This deponent further avers that on or about July 15, 1903, this defendant sold and transferred to W. J. Sloan his five shares of stock, receiving therefor the sum of #100 and that from that date until this, this defendant has no knowledge whatever of the affairs of the Greater Pittsburg Real Estate Company, was not a member of its board, had nothing whatever to do with the transaction of its business and was not in any way recognized as connected either as stockholder or officer or debtor to said Greater Pittsburg Real Estate Company.</p> <p>Error assigned was the order of the court.</p>

<p> Contract—Monopoly—Agreement in restraint of trade—Interstate commerce —Divisible contract. </p> <p>An agreement by which in consideration of a very large sum of money the owner of coal lands, coal mines and coal boats sells the same and covenants not to engage directly or indirectly “in the business of mining, marketing or shipping of coal in the territory traversed by the Monongahela, Ohio and Mississippi rivers and their tributaries for a period of ten years from the date hereof,” is a-reasonable contract, and is not contrary to the public policy of Pennsylvania, although it appears that the purchaser had similar contracts with a large number, although not all, of the coal operators and shippers doing business in the Monongahela valley in Pennsylvania.</p> <p>The above contract, in so far as it affects business carried on in the territory contiguous to the Ohio and Mississippi rivers outside of the limits of Pennsylvania, violates the act of Congress of July 2, 1890, known as the antitrust or Sherman act and entitled: “An act to protect trade and commerce against unlawful restraints and monopolies.” The contract, however, is divisible and the seller may be enjoined from engaging in the business of mining coal and marketing or shipping coal on the Monongahela river within the state of Pennsylvania for the period of ten years.</p>

<p>Appeal, No. 64, Oct. T., 1904, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1902, No. 28, on bill in equity in case of Monongahela Eiver Consolidated Coal and Coke Company v. William O. Jutte.</p>

<p>Appeal, No. 68, Oct. T., 1904, by defendants from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1901, No. 738, on verdict for plaintiffs in case of James S. Humbird et al. v. Edward J. Davis and W. E. Griffiths.</p> <p>Assumpsit for money had and received. Before Shaker, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The defepdants presented the following points :</p> <p>1. The plaintiffs have failed to show any right of action against the defendants or either of them, and the plaintiffs, therefore, are not entitled to recover in this action. Answer : Refused. [1]</p> <p>2. That the plaintiffs have failed to show any joint obligation or liability on the part of the defendants to them, the said plaintiffs, jointly, and plaintiffs, therefore, are not entitled to recover in this action. Answer: Refused. [2]</p> <p>3. That the plaintiffs have failed to show any joint obligation to plaintiffs either jointly or severally, the said plaintiffs, therefore, are not entitled to recover in this action. Answer: Refused. [3]</p> <p>4. That the present action is simply an action of assumpsit, based upon the waiver of an alleged tort, and in such action, even though the defendants may have been joint tort feasors, no implication of a joint promise can arise to make good the alleged loss! arising by reason of the alleged tort. Answer : Refused. [4]</p> <p>8. That in no phase of the case can plaintiffs recover in an action of assumpsit. Answer: Refused. [5]</p> <p>9. That under all the evidence in the case the verdict of the jury must be in favor of the defendants. Answer: Refused. [6] j</p> <p>10. Defendant Griffiths asks the court to charge the jury that as plaintiffs’ action is based on deceit, and there is no evidence that defendant Griffiths participated in, or had any knowledge of, such alleged deceit, the verdict of the jury must be in favor of Griffiths. Answer: Refused. [7]</p> <p>Verdict and judgment for plaintiffs for 142,958.49. Defendants appealed.</p> <p>Errors assigned were (1-7) above instructions, quoting them.</p> <p>J. S. Ferguson, with him E. Gr. Ferguson, for appellant.</p>

<p> Contract—Parol agreement—Affidavit of defense. </p> <p>A written order for goods cannot be varied by parol representations alleged to have been made by one of the parties prior to the execution of the written agreement. Even if the parol agreement were contemporaneous, it is inadmissible, unless there is proof that it was omitted from the written agreement by fraud, accident or mistake.</p> <p> Contract—Sale—Warranty. </p> <p>Where a known, described and definite article is supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.</p> <p>If a thing bb ordered by the manufacturer for a special purpose, and it be supplied and sold for that purpose, there is an implied warranty that it is fit for that purpose. But this principle is limited to cases where a thing is ordered for a special purpose, and must not be applied to those where a special thing is ordered, although this be intended for a special purpose.</p>

<p>Appeal, No. 134, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 633, on verdict for plaintiff in case of James Duffy and Catherine Duffy his wife v. Sable Iron Works, Zug & Co., Limited.</p> <p>Trespass for death of plaintiff’s son. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p> Railroads—Eminent domain—Abandonment of roadbed—Road law—Res adjudicata. </p> <p>While the courts have no jurisdiction to lay out longitudinally a public road on the occupied right of way of a railroad company, nevertheless they have such jurisdiction to lay out such road on an abandoned right of way or roadbed. It cannot be said, that if a railroad has once made an appropriation of a strip of land for railroad purposes and afterwards abandoned it for such purposes, nevertheless, the land shall thereafter remain sacred and forever exempt from other public uses. After such abandonment it is open to appropriation to other public uses.</p> <p>In a mandamus proceeding in the court of common pleas by a township against a railroad company to compel the defendant to reconstruct a highway which it had obstructed, it appeared that the bed of the highway in question had once been condemned by the defendant and used for a time as its roadway, but that after the construction of a double-track railroad the rails and ties had been taken away from the old roadbed. Subsequently by road proceedings in the quarter sessions the public road in question was laid out over the old bed. Some years afterwards the railroad obstructed the public road thus laid out, and refused to reconstruct the highway. Mandamus proceedings were then brought. It appeared from the record of the road proceedings in the quarter sessions that the petition for viewers prayed the court to appoint viewers to lay out a road in great part on the old abandoned1 road of the railroad company. The viewers reported that they had laid out the road following "the old abandoned roadbed” of the railroad company. The viewers also reported that legal notice of the view had been given. Held, (1) that the record of the quarter sessions showed conclusively an adjudication of an abandonment of the old roadbed; (2) that as legal notice was given and no objection made by the railroad company at the time it could not attack the adjudication of the quarter sessions in a collateral proceeding; (3) that a judgment in favor of the township in the mandamus proceedings should be sustained.</p> <p>Thompson, J., dissents.</p>

<p>Appeal, No. 182, Oct. T., 1904, by plaintiff, from order of G. P. No. 1, Allegheny Co., June T., 1902, No. 793, refusing to take off nonsuit in case of Frances A. O’Hara to use of Rebecca R. Phillips now for use of Anna L. Caldwell v. John Corr, Deceased, now in the hands of Mary Corr, or Carr, Administratrix, with notice to Harry E. Holman, terre-tenant.</p> <p>Scire facias sur mortgage. Before Collier, J.</p> <p>The factsl are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence—Railroads—Contributory negligence—Explosion of naphtha— Case for jury.</p> <p>In an action against a railroad company to recover damages for personal injuries it appeared that through an accident in defendant’s yard a number of tank cars containing a large quantity of naphtha wore set on fire. This fire was communicated to other cars and there was an extensive and disastrous conflagration which lasted several hours. Three hours after the fire started there was an explosion which threw burning naphtha beyond the limits of the yard and on to the street where the plaintiff was walking. The plaintiff testified that he had come from his home on the opposite side of a river because of his apprehension that the fire might spread and extend to the house of his sister. Having assured himself of her safety he started at once to return to his home by the way he came. Not finding a car he walked on until one should overtake him. When he was opposite the place where the cars were burning and forty feet above and 260 feet from them, the explosion occurred. At this time the ordinary travel on the avenue had not stopped and the electric cars were running as usual. The employees of the railroad company and of the fire department were working in the yard within twenty or thirty feet of the cars. Held, that the ease was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Appeal, No. 138, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 608, on verdict for plaintiff in case of Charles F. Smith v. Pittsburg, Cincinnati, Chicago & St. Louis Railway Company.</p>

<p>Appeal, No. 151, Oct. T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 679, on verdict for plaintiff in-case of Harry T. Wright v. J. Hanna.</p> <p>Assumpsit upon six promissory notes. Before Frazier, P. J.</p> <p>The form of the notes sued upon was as follows :</p> <p>“ $1,000.00. Sterling, Kansas, January 1, 1896.</p> <p>“ On or before the first day of June, 1897, I or we, or either of us, promise to pay to the order of Harry T. Wright, the sum of one thousand dollars, for value received, payable. . . . Kansas, with 4 per cent, interest, from date until paid, payable annually.</p> <p>“ J. H. Hanna.</p> <p>“Endorsed: Harry T. Wright.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment of plaintiff for $6,843.33. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence referred to in the opinion of the Supreme Court; (4) in giving binding instructions.</p>

<p>Appeal, No. 160, Oct. T., 1904, by plaintiff, from decree of O. P. No. 3, Allegheny Co., Aug. T., 1904, No. 327, dismissing bill in equity in case of Findley Gilkeson v. Euphemia Thompson, Rebecca Blanche Thompson, Mt. Washington Savings & Trust Company and Andrew G. Smith, Executor of John Long, deceased.</p> <p>Bill in equity to compel the reassignment of a mortgage. Before Evans, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing the bill.</p>

<p>Appeal, No. 137, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1900, No. 15, on verdict for plaintiff in case of Charles A. Warmcastle v. Scottish Union & National Insurance Company.</p> <p>Assumpsit on a policy of insurance. Before Kennedy, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $3,667.95. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p> Negligence—Street railways—“Stop, look and listen”—Evidence—Question ¡or jury. </p> <p>In an action against a street railway company to recover damages for death of plaintiff’s husband the case is for the jury where the evidence is in effect that the decedent was last seen standing on the curb of a street looking both ways for the approach of an electric car; that he was next seen lying against the curb toward which he was going, thrown there by collision with a car; that the car was running at an unusual speed, and was from 100 to 200 feet from the crossing when the decedent left the pavement, and there was no evidence as to the rate of speed at which the deceased approached the tracks.</p>

<p>Negligence—Death—Parties—Widow and, children—Act of April 26, 1855, P. L. 309.</p> <p>Where a husband is killed through the negligent act of another and leaves to survive him a widow and children the action for his death must be brought in the widow’s name alone, although the damages recovered are to be shared with the children in the proportion they would take the personal estate in case of intestacy.</p> <p>If in such a case the children are joined with the widow through a next friend as parties plaintiff, and a nonsuit is entered, and the children take a separate appeal in their own names, their appeal will be quashed.</p>

<p>Appeal, No. 180, Oct. T., 1904, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1904, No. 558, on demurrer to bill in equity in case of Nicholas Wolf v. Glassport Lumber Company.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree awarding injunction.</p>

Appeal, No. 6, May T., 1904, by defendant, from order of C. P. Dauphin Co., Commonwealth Docket, No. 24, awarding writ of peremptory mandamus in suit of commonwealth of Pennsylvania, ex relatione Hampton L. Carson, attorney general of the commonwealth of Pennsylvania, for the use of Craig Biddle, F. Amédée Brégy, Mayer Sultzberger, William W. Wiltbank, Norris S. Barratt, Robert N. Willson, J. Willis Martin, Joseph C. Ferguson, Clement B. Penrose, Robert Ralston, G. Harry…

<p> Mandamus—Practice—Parties—Misjoinder—Judgment. </p> <p>Mandamus is a common-law writ. Though the practice in proceedings on a petition for it is regulated by statute, the common-law rule prevails that there cannot be two judgments on it. When two or more join in a petition for the writ, and it appears that one of them has no right to it, there cannot be one judgment for a peremptory writ in favor of the rest of the petitioners and another judgment in favor of the defendants as to the other one. When there is a joinder of petitioners the peremptory writ must be ,or all of them or for none of them.</p>

<p>Appeal, No. 192, Oct. T., 1904, by plaintiff, from judgment of C. P., No. 1, Allegheny Co., Dec. T., 1902, No. 646, on verdict for plaintiff, in case of W. G. Kaufman v. Pittsburg, Carnegie and Western R. R. Co.</p> <p>Proceedings to assess the value of a piece of land taken by the defendant railroad company. Before Collier, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for 132,700. Plaintiff appealed.</p> <p>Errors assigned were (1-4) certain rulings on evidence; (5, 6) to the answers to points; (7) that the charge was unfair to the plaintiff.</p>

<p>Appeal, Nos. 174 and 177, Oct. T., 1904, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 635, on bill in equity in case of William J. Moorhead et al. and the Fidelity Title & Trust Company of Pittsburg, administrator of Mary E. Moorhead, deceased, v. Elizabeth J. Scovel, individually and as Trustee, and the Safe Deposit & Trust Company of Pittsburg.</p> <p>Bill in equity to set aside a deed. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree in favor of the complainants.</p> <p>Errors assigned were the various findings and conclusions and the decree of the court below.</p>

<p> Trial—Practice, C. P.—Evidence—Credibility of witnesses—Inferences of fact—Province of court and jury—Beneficial associations. </p> <p>If the evidence is direct, certain, presenting no question of credibility, and leaving no ground for inconsistent inferences of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends upon the credibility of witnesses and if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up the doubts, settle questions of credibility, draw the correct inferences and give final shape to the findings of fact.</p> <p>It may well be in a case that the weight of the evidence may be sufficient to justify a trial judge in setting aside successive verdicts, yet it does not follow that he is warranted in taking from the jury in the first instance the determination of a question of fact depending upon the credibility of witnesses.</p> <p>In an action against a beneficial association to recover a death benefit, where the defense is that the member was over fifty years of age when he was initiated, which was beyond the age limit permitted by the constitution of the association, and the evidence on the subject is conflicting and largely turns upon the credibility of the witnesses, the case must be submitted to the jury for determination.</p>

<p>Appeal, No. 185, Oct. T., 1904, by plaintiffs, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1904, No. 730, on demurrer to statement in case of John A. Tucker and William Byers, trading as Byers & Tucker v. Amy H. DuPuy.</p> <p>Assumpsit for breach of an implied covenant of quiet enjoyment.</p> <p>Demurrer to statement. Before Kennedy, P. J.</p> <p>The material averments of the statement of claim are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p> Equity—Injunction—Mandatory injunction—Wrongful use of blue prints and drawings. </p> <p>Where a ear manufacturing company delivers to its customers blue prints in connection with the orders for cars for the information and use of the purchasers as a necessary part of the transaction, and also for their use in ordering repair parts, and the customers deliver the blue prints to a rival car manufacturing company so that the latter might use them in manufacturing and selling cars and car parts, the latter company will be compelled by a court of equity to surrender up such blue prints to the former company.</p>

<p>Appeal, No. 61, Oct. T., 1904, by defendant, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1903, No. 65, on bill in equity in case of-John A. Snee v. West Side Belt Railroad Company.</p> <p>Bill in equity for an injunction. Before Fbazeb, P. J.</p> <p>The court found the facts to be as follows:</p> <p>1. The plaintiff is the owner of a farm situate in Jefferson township, this county, containing eighty-six acres, through a portion of which flows a stream of water known as Peters creek.</p> <p>2. The defendant is a corporation created under the general railroad laws of this commonwealth, for the purpose of constructing a railroad from a point on the Monongahela river near the mouth of Peters creek to the city of Pittsburg; that the route of the defendant’s railroad lies across a portion of plaintiff’s farm.</p> <p>8. That the defendant company has filed its bond in this court to secure to plaintiff the payment of any damages that may result to him by reason of the construction of its road over and upon his land.</p> <p>4. That defendant in constructing its road across plaintiff’s land is obliged to cross Peters creek twice, and also construct an embankment between the banks of the creek at these points, of about 400 feet in length, and nine feet in height; that for the purpose of avoiding the construction of bridges over the creek at each end of the embankment, defendant proposes to create a new channel for the creek along its embankment and over the land of plaintiff, and continue its embankment across the creek’s present bed.</p> <p>5. That for the purpose of making the proposed new channel, defendant proposes to take, and is about to take, sufficient land of plaintiff adjoining its right of way; that the strip of ground intended to be taken for both the right of way and new channel is 130 feet in width, and whatever additional grant that may be necessary for slopes and embankments.</p> <p>6. That at the point on plaintiff’s land where the route of defendant’s road crosses Peters creek, there is a curve in the channel of the stream, requiring the creek to be crossed twice in a distance of about 500 feet; that by the construction of an embankment along the entire distance, and the changing of the creek’s channel, part of the plaintiff’s land is cut off from the balance of the farm, and deprived of the benefit of the waters of the creek.</p> <p>7. That the cost of two iron bridges over the creek at this point would be from $1 8,000 to $20,000 in excess of the cost of an embankment; that while the construction of embankments is desired by railroad engineers in preference to bridges, the latter at this point are practicable and could be constructed so as to be both safe and serviceable.</p> <p>8. That the defendant’s road is not now, nor will it be constructed, upon plaintiff’s property at or near the corner where he joins the lands of Alice H. Wilson, nor does it appear from the evidence that defendant is encroaching upon the channel of the creek or changing the same upon plaintiff’s farm, so that injury will result to plaintiff by reason of overflow.</p> <p>The court entered a decree perpetually enjoining the defendant from taking complainant’s land for the purpose of changing the channel of Peters creek.</p> <p>Error assigned was the decree of the court.</p>

<p> Oil and gas leases—Rental—Abandonment—Notice. </p> <p>When the right of possession for operating purposes has been acquired Under an oil and gas lease, by a successful search for the product, the lessee becomes answerable for the stipulated rental according to the terms of the agreement and is relieved of that liability only by showing payment, or notice to the lessor, either written or verbal, of abandonment. This is a wholesome rule tending to promote certainty in the determination of disputes in this class of contracts: Double v. Union Heat & Light Co., 172 Pa. 388, approved and followed.</p>

<p>Appeal, No. 140, Oct. T., 1904, by Philadelphia Company, from order of C. P. No. 1, Allegheny Co., March T., 1904, No. 649, to strike off appeal from Board of Assessors In re Petition of Philadelphia Company.</p> <p>Rule to strike off appeal from the board of assessors. Before Macearlane, J.</p> <p>From the record it appeared that the Philadelphia Company presented its petition to the court of common pleas setting forth that the board of assessors of the city of Allegheny had assessed its real estate in the ninth ward of said city at the sum of $1,019,450, which was excessive, unreasonable and beyond its fair valuation, and prayed that it be permitted to appeal therefrom. The petition was presented under the act of assembly entitled “ An Act authorizing appeals from assessments of taxes in this commonwealth to the court of common pleas,” approved April 19, 1889, P. L. 87. It was presented and an appeal allowed within sixty days after final action by the board of assessors. The city of Allegheny presented its petition praying for rule on the appellant to show cause why said appeal should not be stricken off for the reason (a) that no appeal was taken to the board of assessors; and (&) no appeal was taken within thirty days, as required by the Act of July 9, 1897, P. L. 219. To the petition of the city of Aliegheny, the appellant filed an answer averring that so much of the act of 1897 as related to appeals was unconstitutional, and that the board of assessors had not given due notice, either to the appellant, its agent, or the occupiers of the land assessed, of the date of appeal or of its final action. On June 22, 1904, the court below made the rule to strike off the appeal absolute, and filed an opinion saying, while it was doubtful whether the title of the act of 1897 was sufficient to give notice of the provision that an appeal was to be taken within thirty days to the court of common pleas, yet, as the appellant had failed to exercise its right to appeal to the board of assessors, it could not be allowed to appeal to the court of common pleas.</p> <p>Error assigned was the order of the court.</p>

<p> Decedent’s estates—Claim for money received by decedent—Evidence. </p> <p>At the audit of an executor’s account a claim was presented for a one-half interest in certain shares of stock. The claimant had been the decedent’s stenographer, but had left his employment about two years prior to his death, although she continued to do some occasional work for him. After his death she took charge of his papers and personal effects, and claimed his furniture by virtue of a bill of sale which he had made to her. She surrendered most of the papers to the executrix, keeping some as to which she had been notified by an attorney not to give up, as they related to a claim of partnership by a third person against the decedent. The evidence showed that at various times she had given the decedent checks out of her own bank account aggregating about $10,000. These checks and their stubs had words written on them connecting them with the stock in controversy. There was some evidence that these words were not written with the same pen and with the same ink as the body of the check, and that the stubs were in pencil while the checks were in ink. Several witnesses swore to conversations in which' the decedent had admitted the claimant’s joint ownership of the stock, consulted her about what should be done with it, advised her not to sell, though she wanted to while it was going up in price, and added up the profits showing half of them to be hers. There was evidence that the aggregate amount of the payments fell somewhat short of the price paid for one half of the stock, and that claimant’s payments did not correspond in time and amount with decedent’s payments for the stock, but there was no evidence that the payments had been made for any other purpose than the purchase of the stock. There was evidence that the deceased treated the stock as his own and borrowed money on it, but this course of business was not unusual with him. It also appeared that three other women and one man had given money to the decedent to invest under circumstances somewhat similar to those of the claimant, and that the claims of these persons had been allowed. Held (1) that the circumstances did not establish any such confidential relation as to require of claimant a higher measure of proof than in ordinary cases; (2) that the claim should have been allowed.</p> <p>Fell and Bbown, JJ., dissent on 2.</p>

Appeal, No. 193, Oct. T., 1904, by Ella M. Brown, from decree of O. C. Allegheny Co., May T., 1904, No. 54, sustaining exceptions to adjudication in Estate of Joseph O. Brown, deceased. Exceptions to adjudication. At the audit it was shown that shortly before decedent’s death Mrs. Bessie Craft gave to the decedent $2,000, of which sum $500 was returned before the decedent died. The executrix claimed that the money had been given to the decedent for investment.

<p>Appeal, No. 197, Oct. T., 1904, by plaintiff:, from decree of C. P. No. 1, Allegheny Co., March Term, 1908, No. 204, dismissing bill in equity in case of Mary C. Snyder and Lyda Dellnora Snyder v. Baltimore & Ohio Railroad Company, the Pittsburg & Connellsville Railroad Company and the Glenwood Railroad Company.</p> <p>Bill in equity for an injunction. Before MACFARLANE, J.</p> <p>From the record it appeared that the' Glenwood Railroad Company, a corporation organized under the general railroad act of April 4, 1868, leased its road to the Pittsburg & Connellsville Railroad Company, a corporation chartered by the state of Pennsylvania on April 3, 1837, and that the latter company leased its property to the Baltimore & Ohio Railroad Company, a corporation of the state of Maryland. In 1903, the Glenwood Railroad Company instituted proceedings to condemn plaintiff’s land, including a dwelling house, for the purpose of widening its road. Macearlane, J., found, inter alia, the following facts:</p> <p>11. Since the time of its completion, the Glenwood Railroad Company has maintained a series of railroad sidings, known as a yard, extending from a point on Elizabeth street to Vespueius street, said tracks being used for the purpose of receiving and storing cars coming to the Glenwood Railroad at either end, making up trains and dispatching them to their points of destination.</p> <p>12. The business done over the Glenwood Railroad has, in the last year, so largely Increased, that the sidings so used have become entirely insufficient to handle with convenience and dispatch the number of cars daily received, and upon September 17, 1902, the board of directors of the Glenwood Railroad Company regularly adopted the following resolutions :</p> <p>“ Resolved, that in order to accomodate the business of this company, it is necessary to construct yard tracks and railroad sidings, roundhouse, trestle and shops at Glenwood, twenty-third ward, city of Pittsburg, and for such purpose to appropriate and acquire all the property lying between Vespucius street and Allegheny street, and between Gloster street and. Lytle street. Be it further</p> <p>“ Resolved, that the location of the said railroad sidings, roundhouse and other improvements, as shown by the survey and plan thereof made by the engineer of this company, and herewith submitted as part of this resolution, be, and the same is hereby adopted and approved. Be it further</p> <p>“ Resolved that the proper officers of this company are hereby authorized and instructed to acquire all the land necessary for the construction of said improvements, either by voluntary purchase, or, if necessary, by condemnation, in accordance with the charter of this company, and that they proceed immediately with the construction of said improvements.”</p> <p>13. The property of the plaintiffs above described, lying within the space described in the said resolution, was appropriated by the Glenwood Railroad Company for the purposes therein mentioned, and said lots will be occupied by railroad tracks or sidings used for the purpose of storing cars while not in use.</p> <p>14. Such additional tracks as the Glenwood Railroad Company proposes to build are, in the judgment of the board of directors, necessary to increase the facilities for transportation over the Glenwood Railroad Company, and are, as a fact, so necessary.</p> <p>15. The Glenwood Railroad Company has acquired by purchase, or by the exercise of eminent domain, all the property lying between the original main tracks of its railroad, and Gloster street, and between Vespucius street and Allegheny street, excepting only two or three small lots, for which negotiations to purchase have not yet been concluded.</p> <p>16. The Glenwood Railroad Company was incorporated for the purpose of constructing the railroad described in its charter, in order to assist the Baltimore & Ohio Railroad Company, as the lessee of the Pittsburg & Connellsville Railroad, in the transportation of traffic coming to the Pittsburg & Connellsville at Glenwood, the eastern terminus of the Glenwood Railroad, and at Laughlin Junction, the western terminus of the Glenwood Railroad, between the said points ; and the Baltimore and Ohio Railroad Company loaned to the Glenwood Railroad Company the funds necessary to construct the said railroad and its various appurtenances.</p> <p>CONCLUSIONS OP LAW.</p> <p>1. The Glenwood Railroad Company has the right to appropriate the property of the plaintiffs for the purpose of widening and otherwise improving its lines, and the directors having determined that the proposed improvements are a necessity, and as they are in fact a necessity for the increased traffic over its lines, bond having been given in condemnation proceedings, the plaintiffs have no standing to object.</p> <p>2. Dwelling house property in the occupancy of the owner may be appropriated by the Glenwood Railroad Company for the purpose of widening and improving its lines.</p> <p>3. Neither the Baltimore & Ohio Railroad Company nor the Pittsburg & Connellsville Railroad Company is about to take, nor have either taken, the property of the plaintiff.</p> <p>4. The injunction prayed for is refused, and the bill is dismissed at the cost of the plaintiffs.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 110, Oct. T., 1903, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1902, No. 85, refusing to take off non-suit in case of Elizabeth Temme v. Philip Schmidt. Trespass to recover damages for death of plaintiff’s husband. Before Brown, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 198, Oct. T., 1904, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 397, on bill in equity in case of Pittsburg Valve, Foundry & Construction Company v. George E. Klingelhofer et al. Bill in equity for an injunction. Before Shafer, J. The court found the facts to be as follows : 1.

<p>Railroads—Eminent domain—Condemnation of dwelling house—Widening —Terminals—Act of March 17, 1869, P. L. 12.</p> <p>Where a railroad company had acquired for terminal facilities, by purchase, all of the properties in a city block, except two, one of which was a dwelling house in the occupancy of its owner, and after the decision of Dryden v. Ry. Co., 208 Pa. 316, and before a single train had been run on the road, the directors adopted a resolution to condemn the dwelling house for the purpose of widening the terminal site, a court of equity will enjoin any proceedings under the resolution.</p>

<p>Appeal, No. 201, Oct. T., 1904, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1901, No. T38, dismissing bill in equity in case of Munhall Borough v. Mifflin Township.</p> <p>Bill in equity for the adjustment of liabilities and assets between a borough and township. Before Rodgebs, J.</p> <p>The opinion of the Supreme Court states the ease.</p> <p>Error assigned was the decree of the court dismissing the bill.</p>

<p> Contract—Payment in particular manner—Collateral. </p> <p>An action was brought upon a written agreement, into which the defendants had entered, reciting that they had assigned to plaintiffs a mortgage and certain policies of life insurance, having cash surrender values, to secure plaintiffs for a loan of $11,500 theretofore made by them to defendants. Plaintiffs agreed to reassign the securities if the loan was paid within one year. Defendants agreed that if the loan was not paid within one year, the plaintiffs might realize from the insurance company the surrender value of the policies, and might sell the mortgage; the proceeds so realized to be applied to the payment of the debt of the defendants with interest and costs. Defendants further agreed that in case the sum realized from the policies of insurance and the sale of the mortgage was not sufficient to pay in full the indebtedness, they would pay to the plaintiffs “the amount of such deficiency as may appear after a full settlement with the insurance company, and sale of the mortgage.” The plaintiffs claimed to recover the whole amount without having made any attempt to realize upon the collateral. Held, that the suit was different from that on a promissory note with collateral, and could not be maintained.</p>

<p>Appeal, No. 203, Oct. T., 1904, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1902, No. 501, on verdict for plaintiff in case of trustees of the Synod of tlie Reformed Presbyterian Church of North America v. F. P. Livingston.</p> <p>Scire facias sur mortgage.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $5,140, subject to question of law reserved.</p> <p>The court subsequently entered judgment on the verdict.</p> <p>Error assigned was in entering judgment on tlie verdict.</p>

<p> Road law—Opening of streets—Retaining walls—Assessment for benefit. </p> <p>Where a street is constructed on the side of a steep hill, and a retaining wall is built partly outside of the line of the street but necessary for the support and protection of the street, and it appears that such wall was built with the knowledge of property owners and in most cases at their request, or with their express consent, the owners are liable for assessments for benefits arising from the construction of the wall, although the wall was not actually built on their land.</p>

<p>Appeal, No. 145, Oct. T., 1904, by George W. Evans, from order of O. P. No. 3, Allegheny Co., Feb. T., 1903, No. 180, dismissing exceptions to report of viewers in the matter of East Street from Elmira Street to Perrysville Avenue.</p> <p>Exceptions to report of viewers.</p> <p>McClttng-, J., filed an opinion in which he found, inter alia, as follows:</p> <p>There is no dispute about the fact that this street was an old plank road which was purchased by the city. It is contended that whilst the city did not lay the plank, it adopted it as a pavement.</p> <p>There is no doubt that the plank road was in bad condition when it was acquired by the city, and that the city immediately upon its acquisition took steps towards the widening and paving of the road. It made simply such repairs as were necessary ■ to keep it in passable condition until the improvement could be made, and the testimony indicates that it was not kept in more than passable condition. It is perfectly plain that the city condemned this road for the very purpose of getting rid of the plank and acquiring the right to make an improve2nent that had become a necessity. Nothing can be plainer than that the city did not adopt the worn planking as a pavement for East street. ■</p> <p>Errors assigned were in dismissing exceptions to report of jury of view.</p>

<p>Appeals—Interlocutory order—Quashing appeal—Ejectment—Rule to bring ejectment—Acts of March 8, 1889, P. L. 10, and May 25, 1893, P. L. 131.</p> <p>No appeal lies from an order of the court of common pleas making absolute a rule granted under the Act of March 8, 1889, as amended by the Act of May 25, 1893, P. L. 131, to bring an action of ejectment within six months. The order is interlocutory and an appeal from it is not allowed by either of the acts of assembly under which the rule was granted.</p>

<p> Constitutional law—Legislative authority—Appropriations—Contract to supply meals to members of the legislature while attending dedication of the Grant Monument in New York. </p> <p>By a concurrent resolution passed over the governor’s veto on April 21, 1897, by the senate and the house of representatives, the two houses resolved to attend in a body the dedication of the monument erected in memory of General Grant at New York, and further resolved “that all matters pertaining to such attendance be referred to the Committee on Military Affairs of the Senate and House.” The committees entered into a contract with a caterer to furnish two meals in New York on the day of the dedication. The meals, consisting of edibles, wines and cigars, were furnished in accordance with the agreement. Held, (1) that the committee had power under the resolution to make the contract; (2) that the legislature had the power under the constitution to authorize the committee to make the contract in question; and (3) that the contract did not violate article 2, section 8 of the constitution which prohibits members of the legislature from receiving any other compensation than their salary.</p> <p> Statutes—Diverse statutes—Construction. </p> <p>If divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them. It is an established rule of law, that all acts in pari materia are to be taken together as if they were one law.</p> <p>The concurrent resolution of April 21, 1897, P. L. 556, and the Act of May 15, 1903, P. L. 406, appropriating money to pay for the supplies furnished under the concurrent resolution are to be construed together as indicating the legislative understanding of what was intended by the concurrent resolution.</p> <p> Constitutional law—Legislative power—Restrictions on legislature. </p> <p>The test of legislative power is constitutional restriction; what the people have not said in the organic law their representatives shall not do, they may do.</p> <p>There is nothing in the constitution of Pennsylvania to prohibit the legislature from attending a commemorative patriotic celebration in a body, and to provide that the expenses of their meals when attending such celebration shall be paid out of the public funds.</p> <p>Mestrezat and Potter, JJ., dissent.</p>

<p> Negligence—Master and servant—Proper appliances—Instructions as to work—Question /or jury. </p> <p>The duty of an employer is to provide an employee a safe place in which to work and to furnish him with suitable appliances and, if inexperienced, to make known to him any danger peculiar to their use.</p> <p>In an action by an employee against his employer, the owner of a gristmill, to recover damages for personal injuries sustained by the plaintiff while throwing off a belt from a pulley by moans of a stick, the case is for the jury where the evidence for the defendant tends to show that in gristmills of the character owned by the defendant, the method of removing belts from pulleys was by the use of a stick, while the evidence for the plaintiff tended to show that the general usage was to have a shifter to throw the belt off the pulley, and to have guards between moving belts.</p> <p>In such a case where the employer tells the plaintiff to follow the orders of the head miller, and the latter directs the plaintiff to throw off the belt with a stick, but gives him no instructions as to how to do it, and it appears from plaintiff’s testimony that plaintiff had no experience in running machinery, the case is for the jury on the question of instructions.</p>

Appeal, No. 196, Oct. T., 1904, by Henry Clatty, from decree of O. C. Allegheny Co., June T., 1904, No. 335, dismissing exceptions to adjudication in estate of Henry Klenke, deceased. Exceptions to adjudication.

<p>Appeals, Nos. 318 and 319, Jan. T., 1904, by defendants, from judgments of O. & T. Centre Co., Aug. T., 1904, No. 45, on verdict of guilty of murder of the first degree in cases of Commonwealth v. William .Dillen and Commonwealth v. Ira Green.</p> <p>Indictment for murder.</p> <p>On a motion for a new trial Love, P. J., filed an opinion which was in part as follows :</p> <p>It is also assigned as a reason that the court erred in not making an immediate order upon the application of Clement Dale, Esq., one of the counsel for defendants, for process and means to enable defendants to prepare their defense. The application was for an order to be made upon the commissioners to pay a sum of money. We had no authority to make such an order. There was no application made by Mr. Dale for compulsory process for witnesses. Had there been it would have been granted at once. When the application was made we suggested that he ascertain who and what witnesses he wanted to subpoena and we would grant process, and also suggested that the commissioners agree to allow a reasonable sum to aid the defendants in procuring witnesses and preparing their defense. Immediately after their arrest we saw the commissioners’ counsel and suggested to him that he have the commissioners communicate with the prisoners and see if they had counsel, or to see if they had any choice of counsel to make, and we would assign such counsel to take charge of the defense. They made no choice, and the court assigned H. C. Quigley, Esq., to look after their defense, two or three weeks before court convened. Later on Clement Dale, Esq., and Hon. A. O. Eurst were called into the case by relatives of the prisoners. No compulsory process for witnesses was applied for until after court convened and a day or so before the cause was called for trial. We are not persuaded that the court erred in that matter.</p> <p>The facts in the case were confined to a narrow compass and to no great extent in dispute. It was not denied that the prisoners concocted a plan to escape jail for themselves and other prisoners, which involved the commission of a crime. The evening the crime was committed, the prisoners, having a couple of days before procured what might well be termed dangerous or deadly instruments, got out of their cell, and, with the instruments, concealed themselves in the bathroom, not far from the main entrance into the prison department of the jail. They knew that no one was present or about the jail but the turnkey, Jerry Condo. Dillen removed his shoes from his feet so as to avoid making a noise when they were to make the assault upon the deceased. They evidently were determined to overcome all obstacles in the way of their plan of escape.</p> <p>They lay in wait in the bathroom for three quarters of an hour before the turnkey entered. Just after he entered and locked the door behind him, and, just as he had started upstairs, leading to the cells above to be locked, they came out of the bathroom and Dillen dealt him a heavy blow with a heavy iron, T-shaPed, and Green jumped up the stairs above him and began to batter him on the head with a piece of iron about a foot in length, one- and a half inches wide and one half inch thick, striking him some eight or nine times. The blows resulted in his death, he dying in about twenty-eight hours after the beating.</p> <p>Who were the prisoners waiting for, armed as they were with the dangerous instruments? Had they determined to overcome the principal object that would prevent their escape, even to the taking of life ? It is true they testified that they did not intend to kill. Their testimony went to the jury without the court even calling the attention of the jury to the fact that in considering the testimony of the defendants they, in considering it, should regard the interest they had in the result of the trial. The facts as above stated were practically undisputed. That the instruments were of a dangerous and deadly character is clear; that they were deliberately procured by the prisoners, and that they laid in wait until an opportune time presented itself to use them upon the deceased; that Dillen, stealing upon the turnkey in his stocking feet, struck the first blow. That they acted in concert in the consummation of their criminal purpose is clear.</p> <p>That the beating on the head with a dangerous instrument was designedly done, and the blows were rained upon a vital part of the body, with said instrument, with a manifest purpose to so use it that the use of it resulted in death. We left the question of their intent to kill fairly to the jury under the evidence, and said that if the act was done deliberately, premeditatedly and a dangerous instrument was used upon a vital part of the body with a manifest purpose so to use it, and that it was likely to produce death, then the law presumes they intended the natural consequences of their own act. The defendants admitted that they were guilty of murder of the second degree. The only question was really whether or not there was an intent to take life; we submitted the question fairly and fully under the evidence.</p> <p>Verdict of guilty of murder in the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were, among others, in refusing order on county commissioners, and various instructions.</p>

Appeal, No. 1, May T., 1905, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1904, No. 79, on demurrer for defendant in case of Commonwealth ex rel. Hampton L. Carson, Attorney General, v. William H. Middleton. Demurrer to answer in quo warranto.

<p>Appeal, No. 190, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1903, No. 785, on verdict for plaintiff in case of Minnie M. Dougherty by her aunt and next friend, Rose Dougherty, v. Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points :</p> <p>2. If the plaintiff had been exercising ordinary care by using her eyes and looking where she was going, the condition of the inlet could not have escaped her notice and the verdict must be for the defendant. Answer: That point we refuse. I have already referred to that. It is on the point of contributory negligence, which is dependent upon your finding of that fact under all the circumstances of the case. The fact that she did not look is only one fact to be considered with all the other facts.</p> <p>3. There was neither actual nor constructive notice to the city of Philadelphia under the circumstances of this case, and the verdict must be for the defendant. Answer: That point is refused. I have already spoken of what would be constructive notice. Constructive notice is a fact for you to find what is a reasonable length of time from which the city should find, or be bound with having received notice, if you believe that the condition of this inlet was out of repair for weeks. [2]</p> <p>5. Under all the evidence the verdict must be for the defendant. Answer: That is refused. [3]</p> <p>Verdict for plaintiff for $5,500 upon which judgment was entered for $4,000 all above that amount having been remitted.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p> Judgment—Payment—Presumption—Heirs and devisees—Evidence. </p> <p>While the lien of a judgment obtained against a decedent in his lifetime may be said to continue indefinitely against his heirs and devisees, this does not mean that the general presumption of payment does not arise even in such case after twenty years.</p> <p>Where one of several co-tenants of land has purchased and revived a judgment over thirty years old against the common ancestor, and under a rule taken by one of the heirs to strike off the revived judgment (which rule is made absolute), depositions of the purchaser have been taken against the rule, such depositions cannot be subsequently used against the other heirs, in partition proceedings to rebut the presumption that the original judgment was paid. In such a case the depositions lack the identity of parties requisite to make them admissible in the later litigation.</p>

Appeal, No. 211, Jan. T., 1904, by-Mary E. Smith, from decree of O. C. Phila. Co., Jan. T., 1890, No. 85, dismissing exceptions to adjudication in estate of Nathan Smith, deceased. Exceptions to adjudication.

<p>Appeal, No. 357, Jan. T., 1904, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1904, No. 69, on verdict of guilty of murder in the first degree in the case of Commonwealth v. Martin Razmus.</p> <p>Indictment for murder. Before WHEATON, J.</p> <p>Verdict of guilty of murder in the first degree upon which judgment of sentence was passed. The prisoner appealed.</p> <p>Errors assigned among others were the following :</p> <p>1. The court erred in permitting the commonwealth to try the case on the theory that it was a killing committed in the perpetration of a robbery, and then in allowing counsel for defense to argue at length upon the robbery theory, but advising the district attorney not to discuss it and in not fully explaining to the jury the court’s action.</p> <p>2. The court erred in admitting the testimony of Mrs. Henry Ortwine, wife of the deceased, the purpose of which was to show that her husband had $5.00 at six o’clock in the evening, she being an aged blind woman who could not tell the denomination of paper money.</p> <p>8. The'court erred in saying to the jury that the watchman “ says Martin kicked the old man about the head and ran out of the alley.”</p> <p>13. The court e.rred in not striking out all after the word “Yes,” of Mrs. Litinski’s answer to, the question: “ Q. On Sunday he told you that that was Henry’s voice ? A. Yes. My husband told me he is coming—Henry is coming and Martin is leading him, and he says for God’s sake don’t answer him.”</p>

<p>Appeal, No. 80, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Phila. Co., March T\, 1903, No. 597, on verdict for plaintiff in case of Joseph H. Carter to use of William J. Divine v. Frank Hazlett Moss.</p> <p>Assumpsit to recover commissions. Before Audenried, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,793.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 98, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1900, No. 288, refusing to take off nonsuit in case of Alexander B. Cohn v. Simon May, trading as the American Straw Novelty Company.</p> <p>Trespass to recover damages for personal injuries. Before Beitler, J.</p> <p>On motion to take off nonsuit Beitler, J., filed an opinion in which he stated the facts to be as follows :</p> <p>Plaintiff was in partnership with his brother. The firm occupied the fifth story of a building on Arch street east of Eighth, and manufactured clothing. The defendant occupied the lower stories. A fire occurred in the premises in the evening. The plaintiff attempted to escape by a flight of stairs which ran to the Arch street front, but found his exit cut off by flames. He then tried the back staircase, but found that there was some obstruction preventing his exit. In the darkness he could not tell what it was. He then retreated to the upper story, and tried the outside fire escape, but the flames were then sweeping across the escape on a lower story. The owner had provided chains and ropes, and the plaintiff slid down one of the ropes. It did not reach below the second story, and when the plaintiff came to the end of the rope he was compelled to drop to the street. He was injured by having the palms of his hands blistered in sliding down the rope, and in his limbs and back by the drop from the end of the rope.</p> <p>In his statement he set out that the defendant was the lessee of the entire building, and rented the fifth floor to the plaintiff and his brother as partners, and it was defendant’s duty “ to accord to the plaintiff ready and convenient ingress and egress to said building by a certain stairway which led to and from the fifth floor of said building, yet the said defendant .... wholly disregarding his duty in the premises was negligent therein, and permitted and caused to be placed upon said stairway divers boxes, so that the same became choked and blocked with said boxes, and ingress and egress to said fifth floor by way of said stairway was cut off.”</p> <p>At the trial the evidence showed that plaintiff’s firm and defendant were tenants of the same landlord, and that no relation of landlord and tenant existed between defendant and plaintiff. Thereupon the plaintiff asked to amend. The defendant objected because the action was barred by the statute of limitations. The trial judge sustained the objection and then entered a nonsuit.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 146, Jan. T., 1904, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 3320, on verdict for plaintiffs in case of Ferdinand Prinz and Amelia Prinz, his wife, v. William H. Lucas and Albert Lucas, trustees, trading as John Lucas & Company.</p> <p>Trespass to recover damages for death of a boy. Before Martin, P. J.</p> <p>The facts appear by tbe opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiffs for $2,000. Defendants appealed.</p> <p>Error assigned was in refusing binding instructions for defendants.</p>

<p> Mortgage—Proceeding in rem—Release of bond—Scire facias. </p> <p>An action of scire facias sur mortgage is purely a proceeding in rem.</p> <p>A mortgagor whose bond has been released and who has no longer any interest in the land, cannot be permitted to defend in an action on a scire facias.</p> <p>Where judgment is entered on a scire facias sur mortgage under a stipulation that execution shall not issue until certain mortgages and judgments shall have been satisfied by plaintiff, certain bonds surrendered and that the sheriff’s advertisement shall state that the judgment does not bind defendant personally, and all of these conditions have been complied with, the defendant has lio right to appeal from the judgment, and if he does so the judgment will be affirmed.</p>

<p> Negligence—Animals—Death by kick of horse—Contributory negligence. </p> <p>A horse was left standing for two or three minutes in such a position that he was partly within and partly without a gateway leading from a sixteen feet wide sidewalk of a public street. He was standing in this position waiting his turn to be weighed, after another horse, on scales within the gateway. A person who was within the same inelosure as the scales, went around the scales with a full view of the position of the horse, passed out of the gateway, turned towards the horse and walked along the sidewaEt within four feet of the horse’s hind legs. When he came in line with the heels of the horse, it suddenly kicked and struck him in the side, so injuring him that he died shortly thereafter. The horse was not vicious and was in the keeping of a hostler. It did not appear that the deceased spoke either to the horse or to the hostler before passing.. Held (1), that the evidence was insufficient to convict the owner of the horse of negligence; (2) that deceased was guilty of contributory negligence.</p>

<p> Negligence—Railroads—Trespassers—Infants—Frightening child—Question for fury. </p> <p>In an action by a boy nine years old against a railroad company to recover damages for personal injuries, the case is for the jury where the evidence tends to show that the plaintiff was a trespasser on a moving freight car, that the car was moving at such a rate of speed as to make it dangerous for him to attempt to get off, that while plaintiff was clinging to the brake wheel two brakemen caused the boy to jump or fall from the ear by threatening motions, loud calls, and the flourishing of a switch club, and as a result the boy was injured.</p> <p>In such a case the defendant cannot be held liable, unless it clearly appears from the testimony, that the employees in causing the child to jump or fall from the moving car, have failed to exercise the reasonable and ordinary care which the instincts of humanity and rules of law require in dealing with a child of tender years.</p>

<p>Appeal, No. 237, Jan. T., 1904 by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., June T., 1903, No. 2505, on verdict for defendant in case of Stephen Pollack v. Pennsylvania Railroad Company.</p> <p>Trespass by a father to recover damages for injuries to child of tender age. Before Davis, J.</p> <p>The facts appear by the opinion of the Supreme Court, and by the report of Pollack v. Pennsylvania Railroad (No. 1) supra.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 70, Jan. T., 1904, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1901, No. 582, on verdict for plaintiff in case of Catharine Clark, child, and James E. Clark, parent, v. Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>The circumstances of the accident are described in the opinion of the Supreme Court.</p> <p>At the trial the court declined to permit defendant’s conductor to refresh his memory as to the names and addresses of witnesses to the accident by looking at a report written by him at the time. Exception. [1]</p> <p>The court also declined to permit a passenger, a witness for defendant, to refresh his memory by referring to a statement signed by himself shortly after the accident, for the purpose of refreshing his memory after he had been cross-examined with a view to showing that he was not present at the time of the occurrence. Exception. [2]</p> <p>The court charged in part as follows : [There seems to be no dispute as to the character of the disorder from which this young woman is suffering. It is the opinion of the physicians that the injury was the cause of her present condition. She is said to have been in good health prior to her injury. • It is for you to say whether the accident occasioned her condition. The testimony of Catharine Clark, her sister Mary, her sister Susan, Dr. Stoller and Dr. Porter would indicate that the injury had brought about the present physical condition.] [3]</p> <p>Verdict and judgment for plaintiff, Catharine Clark, $3,500, and James D. Clark, $500. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings ou evidence, quoting the bill of exceptions; (3) portion of charge as above, quoting it; (4) the charge was inadequate.</p>

<p> Negligence—Elevators—Master and servant—Evidence—Contributory negligence—Instructions, </p> <p>The duty of instruction due by a master to a servant does not require warning against such dangers as are the subject of common knowledge, or are open and apparent to ordinary observation.</p> <p>In an action by a workman against his employers to recover damages for personal injuries sustained by a fall down an elevator shaft in a large department store, it appeared that the plaintiff at the time of the accident was engaged in taking water in buckets to the upper floors. In doing his work he used a truck, loading it with buckets and pushing it on to the elevator. At the floor where the water was needed he pushed the truck off the elevator to the point desired. On a return trip to the elevator he pushed the truck through the open door without apparently looking ahead. The elevator was not there, and the truck and plaintiff fell down the shaft. The elevator was not intended for the use merely of the plaintiff, but was for the use of any of the employees who might need it, and it could be put in motion by reaching into the shaft from any of the floors and pulling a wire rope. It did not appear from the evidence how the elevator had been moved. It was shown, however, to have been in good condition immediately after the accident. There were electric lights in the elevator shaft and others in the vicinity. Plaintiff had been working for about four w'eoks in carrying water, and had never complained of any lack of light. Plaintiff claimed that the defendants were negligent in failing to instruct him properly as to the use of the elevator. Held, that it was error to submit the case to the jury, and that a judgment on a verdict for the plaintiff should be reversed without a venire.</p>

<p>Appeal, No. 2, May T., 1904, by defendant; from judgment of C.' P. Dauphin Co., June T., 1903, No. 481, on verdict for plaintiff in case of Susan Redington v. Harrisburg Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Kunkel, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented the following points :</p> <p>2. It is an undisputed fact in this case that the car of the defendant which the plaintiff attempted to board had been stopped for the purpose of receiving a passenger on the other side of the street, and that neither the plaintiff nor her sister, who was with her, had signaled for the car to stop. As there is no evidence that either the motorman or conductor of the car had seen the plaintiff or her sister, or had any knowledge of their intention to board the car, it was not negligence to start the car in the usual way after the passenger for whom it had stopped had been received. The verdict must, therefore, be for the defendant. Answer: This point is refused. [1 ]</p> <p>3. It is undisputed that the plaintiff gave no signal of her intention to board the defendant’s ear, and that it was stopped for a passenger on the other side of the street, and that neither the conductor nor the motorman had any knowledge of her intention to become a passenger. Itwas therefore no negligence to start the car after the passenger for whom it had been stopped had been received, and the verdict must therefore be for the defendant. Answer: This assumes that no signal was given by the plaintiff; we think that it is for the jury to determine whether standing where the plaintiff said she stood was a signal or not. [2]</p> <p>4. There is no evidence in this case of negligence on the part of the defendant or its employees, and, therefore, the verdict must be for the defendant. Answer: Refused. [3]</p> <p>5. In view of the plaintiff’s testimony that she had given no signal to stop the car, and that it had stopped for a passenger on the opposite side of the street, and the undisputed testimony that neither the conductor nor the motorman had any knowledge of her intention to become a passenger, it was not negligence for the motorman and conductor in charge of the car to start it as they did, and the verdict must be for the defendant. Answer: Refused. [4]</p> <p>6. Upon the plaintiff’s own testimony, and all the testimony in the case, there is no evidence of negligence, and the verdict must be for the defendant. Answer : Refused. [5]</p> <p>7. The mere standing on a corner or even in the street, without anything further, is not sufficient to notify the conductor of a street car that the person or persons so standing are intending to become passengers. Answer ; This is refused. We think the place where and the circumstances surrounding the standing must determine that question. [6]</p> <p>Verdict and judgment for plaintiff, for $2,000. Defendant appealed.</p> <p>Errors assigned were (1-6) above instructions, quoting them.</p>