Volume 223 — Pennsylvania State Reports

<p>Negligence — Railroads—Grade crossing — “Stop, look and listen” — Non-suit — Contributory negligence.</p> <p>1. In an action against a railroad company to recover damages for death of plaintiff's husband, a nonsuit should be entered where it appears from the testimony of her own witnesses that at the time of the accident the deceased, who was driving a double team, stopped at a point 225 feet from the grade crossing, from which point only the stack of an engine or smoke issuing from it could be seen in the direction from which the train was coming, and that he then proceeded at a good gait down to the crossing, with all view from the direction of the approaching train cut off by an embankment and other obstructions until he reached a siding, where, if he had stopped, nineteen feet from the main track, he would have had an unobstructed view of the track for a distance of 2,000 feet in the direction from which the train was coming.</p> <p>Trial — Misconduct of juror — Continuance—Withdrawal of juror.</p> <p>2. Where an improper remark and a misstatement of the law are made by the trial judge during an argument on a motion for a nonsuit, and this is followed by applause from the audience in the court room, in which one of the jurors impaneled in the case joins by clapping his hands, it is reversible error for the court to refuse to withdraw a juror and continue the case. Under such circumstances the court should on the instant, and of its own motion, take notice of the misconduct of the juror, and, after discharging him from further service, continue the case, and impose a proper penalty upon him.</p>

<p>Trial — Charge of court — Harmless error — Negligence.</p> <p>1. On the trial of a negligence case defendant sought to establish a different cause for the accident than that asserted by plaintiff, denying that the trestle fell because of defective construction, and attributing its fall to negligent use of same by plaintiff and a fellow workman. In referring to this latter feature, the trial judge in his charge spoke of it as “the only defense set up in this case by the defendant.” Held, that the connection in which the remark occurs in the charge, and the very full instructions given on the other question — the sufficiency of the trestle— prevented any misleading effect.</p> <p>Negligence — Fall of trestle — Evidence—Opinion of witness.</p> <p>2. In an action to recover damages for personal injuries caused by the falling of an alleged defective trestle, a witness for the plaintiff, a carpenter of experience, who had helped to cut and saw the timber used in the construction of the trestle, may testify that in his judgment the structure was unsafe, and this is the case although he may not have actually inspected the parts in place at the point where the structure broke.</p> <p>3. In such a case a witness for defendant having testified to the strength of the trestle in question, was asked whether he had known in his own experience trestles to break in consequence of lateral pressure from cumulative deposits of earth upon one side of the structure. The question was disallowed on the ground that it did not appear that the conditions were the same; nor was it proposed to prove that they were. Held, that the evidence was properly excluded.</p> <p>Trial — Construction as to testimony — Recollection of testimony — Jury.</p> <p>4. Where the trial judge and counsel differ as to their recollection of the testimony, and the judge instructs the jury that it is for them to determine from their own recollection what the witness said, the judgment will not be reversed, even though the judge may have made a mistake in the facts.</p> <p>Negligence — Trestles—Defective work — Evidence.</p> <p>5. Where an issue in an accident case turns on the sufficiency of a trestle, and a witness testifies that there was very little cribbing and that the mud sills rested immediately upon the ground, it is proper for the court to instruct the jury to consider in connection with the sufficiency of the trestle the ground on which it was built and the character and foundation on which it rested.</p>

<p>Trial — Charge—Portion of sentence — Assignment of error.</p> <p>1. Where a part of a sentence is complained of as error, but it appears that the part not quoted properly qualifies the part specified and it also appears that the court in a portion of the charge preceding the sentence, and in an answer to a point, fully, clearly and properly states the law, the judgment will not be reversed.</p> <p>Negligence — Master and servant — Fall of trestle — Question for jury.</p> <p>2. In an action by a foreman against his employer to recover damages for personal injuries, where plaintiff claims that the proximate and efficient cause of the accident was the defective construction of the trestle, while the defendant alleges that the plaintiff had contributed to the accident by the negligent manner in which the plaintiff who had charge of dumping earth under the trestle, had performed his work, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained.</p>

<p>Appeal, No. 89, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 108, affirming judgment of Q. S. Washington Co., Aug. T., 1907, No. 231, on verdict of guilty in case of Commonwealth v. The Baltimore & Ohio Railroad Company, alias The Wheeling, Pittsburg & Baltimore Railroad Company.</p> <p>Appeal from judgment of Superior Court. See 35 Pa. Superior Ct. 474.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 166, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1908, No. 70, on verdict for plaintiff in case of Harry E. Coleman v. D. F. Keenan.</p> <p>Trespass to recover damages for personal injuries. Before Taylor, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $1,845.83. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant, and in overruling defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 191, Oct. T., 1908, by-defendants, from order of C. P. Washington Co., Feb. T., 1908, No. 195, discharging rule to open judgment in case of People’s Bank of California v. W. A. Stroud and Cary Piper. Rule to open judgment. Before Taylor, J. The opinion of the Supreme Court states the case. Error assigned amongst others was in discharging rule to open judgment.

<p>Appeal, No. 3, Oct. T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1903, No. 862, on verdict for plaintiff in case of William L. Kann v. William B. Bennett.</p> <p>Assumpsit by owner against contractor for failure to complete building contract. Before Young, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the plaintiff offered in evidence a letter signed by his architect.</p> <p>Mr Bane: We object to the introduction of the letter in evidence for the reason that it is incompetent, irrelevant and immaterial, and for the reason further that it is not evidence of any violation of the contract by Bennett. It is not evidence of any of the averments contained in it, and it is not evidence of any neglect or refusal of Bennett to supply a sufficient number of men and materials, or to otherwise perform his duties under the contract.</p> <p>Mr. Wendt: We propose to show that the architect gave the contractor notice of his default, and ample timely warning.</p> <p>Objection overruled. To which ruling of the court counsel for defendant except, and thereupon at their request exception noted and bill sealed. [1]</p> <p>Exhibit 4 read to the jury.</p> <p>“Exhibit 4.</p> <p>“Pittsburg, Pa., July 10, 1901.</p> <p>“Mr. W. B. Bennett, Contractor,</p> <p>“5708 Rural Ave., E. E.,</p> <p>“Pittsburg, Pa.</p> <p>“ Dear Sir: I wish to call your attention by this letter, as I have frequently done personally, to the unsatisfactory and dilatory way in which you are proceeding with the erection of Mr. W. L. Kami's residence on Dithridge St., Pittsburg, Pa. Notwithstanding my constant efforts on you and the subcontractors, to have the work go along, it appears that you pay no attention to the same. It is now five (5) months since the work has been started, and the building is far behind its state of completion, and there remains but three (3) months' time for you to complete and deliver the building.</p> <p>“I hereby give you notice that on and after this date, you must keep a sufficient number of people on the job in the various branches that are required, both for your own work and-for the subcontractors under you, according to the contract and agreement. I shall accept no further excuses for the noncompliance of the same, and if you disregard this notice, I shall be compelled to use the authority given me under the contract to have the work done.</p> <p>“ Yours truly,</p> <p>“Wm. Henry Sims.”</p> <p>Counsel for plaintiff offered in evidence a letter from the architect; this to be followed by evidence that the contractor neglected' and refused to supply a sufficiency of properly skilled workmen, and to prosecute the work with diligence after this notice was given, being a letter dated August 26, 1901.</p> <p>Mr. Bane: We object to the introduction of the letter of date August 26,1901, marked exhibit 7, for the reason that there is no sufficient evidence on the record to warrant the delivery of such a letter by the witness and architect to Bennett, the defendant; and for the reason that the letter contains statements of which there is no proof on the record, and for the reason that the letter is not substantive evidence of any of the alleged facts contained in it; and generally, as incompetent, irrelevant and immaterial.</p> <p>The Court: The objection is overruled, but there will be omitted in the reading of the letter any reference of the bond. To which ruling of the court counsel for defendant except, and thereupon at their request, exception noted and bill sealed. [2]</p> <p>Exhibit 7 read to the jury, omitting the part referring to the bond.</p> <p>“Exhibit 7.</p> <p>“August 26, 1901.</p> <p>“Mr. Wm. B. Bennett,</p> <p>“Contractor, City.</p> <p>“Dear Sir: I have urged you a number of times to have the work on the W. L. Kann house on Dithridge St., Pittsburg, Pa., pushed along with promptness and diligence as called for in your agreement with Mr. Kann, dated the 28th day of February, 1901.</p> <p>“The building has been standing unprotected from the weather for several weeks, and for over a week, there has been no work done on the building.</p> <p>“I have given you several written notices to proceed with the work and to have the building closed in and roof covered with tar paper, and to have the stone and brick work properly-protected from the weather and from other injuries that were liable to happen from neglect, and numerous other matters.</p> <p>“The whole contract has been carried along in a careless, improper, unskilled and unworkmanlike manner, and in utter disregard of the specifications and of my directions, and you have failed to give a bond as required by the contract.</p> <p>“This failure is so flagrant that I have no hesitation in certifying further, as I now do, that it is sufficient ground for W. L. Kann to proceed under the terms of the contract, and if all the different work is not started by Friday, the 30th day of August, 1901, I shall give W. L. Kann the necessary notice to employ some other person, or persons, to finish the building and provide the materials therefor, according to the terms of the contract.</p> <p>“Certified by my hand attached hereto this 26th day of August, 1901.</p> <p>“Wm. Henry Sims,</p> <p>“Architect.”</p> <p>Mr. Wendt: In connection with the testimony of W. L. Kann, and W. H. Sims, I offer in evidence the following schedules of exhibit “X,” attached to the supplemental statement of claim, being schedules “A,” “B” and “C,” for the purpose of showing the statement of the account of the plaintiff against the defendant. All those items have been called to the attention of witnesses.</p> <p>Objected to as incompetent, irrelevant and immaterial for the reason that the items named in the schedules are denied in the affidavit of defense.</p> <p>The Court: Objection overruled. These schedules are admitted as some aid to the jury in understanding the case, and because they are part of the pleadings in the case. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed. [3]</p> <p>W. H. Sims was asked this question:</p> <p>“Q. Mr. Sims, do you know what the rental value of this house of Mr. W. L. Kann was in the years of 1901 and 1902?”</p> <p>Objected to as incompetent, irrelevant and immaterial.</p> <p>Objection overruled. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed. [4]</p> <p>Question read. “A. Well, I would say a house of that character — ”</p> <p>Mr. Bane: We object to the proof. If the witness answers it, he should answer yes or no, and then we desire to object to his competency.</p> <p>The Court: We will allow you to cross-examine on that subject, if you wish to.</p> <p>Mr. Bane: “ Q. Mr. Sims, are you engaged in the real estate business? A. No, sir. Q. Engaged in buying and selling real estate? A. No, sir, I am not. Q. Are you engaged in renting houses? A. No, sir, I am not. Q. Were you so engaged in 1901 and 1902? A. I was not.”</p> <p>Mr. Wendt: “Q. As an architect, in 1901 and 1902, were you familiar with the rental value of houses in the East End, in the city of Pittsburg? A. Yes, sir, I might say I was. Q. You constantly, as I understand, are planning houses and supervising the construction of them, and you know the cost of them? A. Yes, sir. Q. In various parts of the city? A. Yes, sir. Q. In your work of planning and locating and building houses, do you become familiar with the rental value of houses of this kind? A. Yes, sir, quite often I had occasion-to consult with the owners.”</p> <p>Mr. Bane: In addition to our former objection, we object to the testimony of the witness for the reason that the witness has not shown sufficient knowledge to enable him to testify to rental values.</p> <p>Objection overruled. To which ruling defendant’s counsel except, and at their request exception is noted and bill sealed.</p> <p>“ Q. State what, in your judgment, was the fair rental value of the W. L. Kann house as it was to have been constructed under this contract, in the years 1901 and 1902? A. Well, I would consider that house would rent for from $1,500 to $1,800 a year.”</p> <p>The plaintiff’s counsel, during his cross-examination of a witness, William S. Callen, read a portion of a letter in the presence of the jury:</p> <p>“Q. I show you a letter signed 'Morrison Bros., Allegheny,’ dated August 21, 1901. Perhaps that will refresh your recollection.”</p> <p>Objected to as-not proper cross-examination.</p> <p>Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed.</p> <p>Question read.</p> <p>Mr. Wendt: “ Q. Do you recall the difficulties referred to in that letter? A. I believe I do. Q. Explain to the jury what that was.”</p> <p>Mr. Bane: We renew the objection.</p> <p>Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed.</p> <p>“A. I don’t know as I can recollect just what this trouble was now that we referred to in this letter. Probably some labor trouble of some kind. Q. Do you remember how long you were delayed by that? A. No, I do not. Q. Can you give us any approximate idea of how many weeks or how much in any way, expressed in any way, you were delayed during that summer by the troubles referred to in that letter? A. I couldn’t; I couldn’t tell you that. Q. You were'obstructed by that trouble? I notice you say in that letter — ”</p> <p>Mr. Bane: I object to his reading that letter; the letter is not in evidence. The plaintiff’s counsel being about to read a portion of an alleged letter, to which reference is made, defendant’s counsel object to the reading of any portion of the letter, for the reason, first, it is not in evidence, and for the reason that it is incompetent, irrelevant and not proper cross-examination.</p> <p>Objection overruled. To which ruling of the court defendant’s counsel except, and at their request exception is noted and bill sealed. [5]</p> <p>“Q. Mr. Callen, in this letter you say, ‘with reference to completing our work on W. L. Kann house, would say that we do not see how it is possible for us to proceed as long as the present state of affairs exists, as our men absolutely refuse to work on this job until the trouble is settled.’ Is it true your men refused to work on the house out there? A. It probably is; it states so in the letter. I suppose it is true.”</p> <p>The court charged in part as follows:</p> <p>[But, if you should find that the defendant did neglect or refuse, or failed in the performance of its contract, then you would pass, in the second place, to a consideration of what the plaintiff lost by reason of that, and you would inquire, in the first place, what was the contract price, and in the second place, what extra work was done. And this is a matter of serious consideration, because the plaintiff claims it was a certain sum, and defendant claims it was a certain other sum. Therefore, you would have to determine what sum would be added to this contract price for the purpose of getting a basis on which you would figure; and having determined that, the contract price and the extra work, then you would proceed to deduct from it the omitted work. And you will notice there is a matter of special inquiry there, the plaintiff saying the omitted work was so much, and the defendant saying the omitted work was much less than that; and then you would try to find out, in the way I have described to you, what the omitted work was, and you would deduct that from the total of the contract price and the extra work, and then you would deduct from that such payments as have been made, and you would deduct from it such cost of labor and material as the plaintiff h.as shown you he has expended money for, and you would add to that such damage for delay,- — not necessarily the delay after the plaintiff took possession, but the delay that occurred during the time that the contract was in the defendant’s hands, from March 15 to September 8; because you will recollect that the plaintiff had possession of the building and finished the work after September 8; therefore, you would inquire how much delay was added to the time that Mr. Kann, the plaintiff, did not get his house, caused by delay within that period, between March 15 and September 8.] [6]</p> <p>[Now, all this is if you find that the defendant was guilty of neglect and refusal and failure to perform his contract. That is the measure of damages, as I have given it to you for the plaintiff, and your verdict would be such amount as might be left, or such an amount as these claims of the plaintiff exceeded the amount of money then due or coming to the defendant. Of course, if the amount thus proved was less than the amount remaining due the defendant (and the burden is on the defendant to satisfy you of that by the weight of the evidence) then your verdict would be for the defendant in that sum; but if the amount was greater than the amount coming to him, then your verdict would be for the plaintiff in that excess.] [7]</p> <p>[Now, after having examined the testimony, if you should find that the defendant did not delay, then you would come to a consideration of the case in a little different way; much similar, in many respects, but slightly different. In that case, you would take first the contract-, and to that you would add the extra work as found from the evidence, and from that you would deduct the omitted work, as found from the evidence; and from that you would deduct the payments, just as you did in the other case. And you would then subtract from that amount such sum as the evidence indicates to you it would cost to finish the building, and you will recollect the evidence of the defendant and his witnesses that it would cost so much, and the evidence of the plaintiff and his witnesses that it had cost so much, and the expert evidence as to what it would have cost, and you will examine that evidence carefully, if you find the defendant was not guilty of any default, and of . course if you should so find, you would not add any damages for delay; because the plaintiff had no right to take the building from him and furnish the labor and material himself, unless the defendant was in default. Therefore, if you find that the defendant was not in default, you would take the contract and the extra work, which would be your total on one side, and from that you would deduct the omitted work, the payments, the cost of finishing, what it would have cost to finish it by Mr. Bennett, and the amount that remained — if there is such an amount — would be what your verdict would be; and, of course, if it was greater, then your verdict would be for the plaintiff for the excess.] [8]</p> <p>Verdict and judgment for plaintiff for $5,523.01. Defendant appealed.</p> <p>Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions; (6-8) above instructions, quoting them.</p>

<p>Negligence — Railroads—Passengers — Stations — Crossing intervening tracks to train.</p> <p>1. Where there are several tracks at a station and passengers are expected to pass over intervening tracks to get upon a train, there is a positive duty upon the railroad company to provide a reasonably safe passage over the intervening tracks, and not to permit locomotives or trains to pass over them while passengers are on the crossing. Negligence in the performance of this duty will subject the company to liability for any resulting injury.</p> <p>2. In an action against a railroad company to recover damages for death of plaintiff's husband, it appeared that the deceased on the day of the accident went to a station where there were four tracks of a railroad running east and west. The station was on the south side of the four tracks. The track next to the station was the east-bound passenger, the next track, fifteen feet distant, was the west-bound passenger track, and the two tracks beyond were for freight traffic. There was a track platform between the west-bound and the east-bound tracks, and at this point the space between the rails of the east-bound track was planked for a distance of about thirty feet. The deceased entered the station, and while purchasing a ticket the gong sounded, giving notice of the approach of a west-bound train which he desired to take, and the ticket agent immediately announced to the deceased and other passengers, “train going west.” The deceased started with the other passengers following, proceeded down the steps to the platform, and while the deceased was about stepping from the planks between the rails of the eastbound track and the track platform from which he was to enter the west-bound train, he was struck and killed by an express train going east on the east-bound track running from twenty-five to thirty miles an hour, and twenty-seven minutes late. The other passengers who were following the deceased saw the situation in time to save themselves. Held that the plaintiff was entitled to have a judgment entered in her favor on a verdict for her.</p>

<p>Appeal, No. 14, Oct. T., 1908, by-defendant, from judgment of Superior Court, April T., 1907, No. 183, affirming decree of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 599, on bill in equity in case of Henry A. Davis v. The Southwest Pennsylvania Pipe Lines.</p> <p>Appeal from Superior Court. See 34 Pa. Superior Ct. 438.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 27, Oct. T., 1908, by William E. Kramer, from decree of O. C. Allegheny Co., Sept. T., 1907, No. 221, dismissing exceptions to the adjudicar tion in Estate of Ernest Frey.</p> <p>Exceptions to adjudication. Before Miller, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 55, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 447, on verdict for defendants in case of East End Savings & Trust Company v. May Chadwick and E. W. McKee, executors and trustees under the last will of Samuel Chadwick, deceased.</p> <p>Assumpsit for breach of contract to sell a mortgage. Before Young, J.</p> <p>The facts are stated in the opinion of the Supreme' Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Electric light companies — Right to extend wires over street — Equity—Injunction — Corporation.</p> <p>1. An electric light company has by virtue of its charter privilege and municipal consent the right to extend its wires across a street, and any interference with the safe and convenient use of its wires is an encroachment upon a public right that is paramount to any right in the abutting owners to extend wires over the same street.</p> <p>2. Where a wire maintained by an individual in a street interferes with and endangers the wires of an electric light company engaged in furnishing electric light to the public the individual will be enjoined from maintaining the wire.</p>

<p>Principal and surety — Building contract — Overpayments.</p> <p>1. The surety upon a contractor’s bond is entitled to stand upon the terms of the contract, precisely as they were when he agreed to become responsible for its performance.</p> <p>2. An essential part of a building contract required that fifteen per cent of the amount due thereon should be retained until final settlement. Where the obligee, in disregard of this requirement, overpaid the principal, he cannot recover the amount of such overpayment from the surety upon the bond.</p>

<p>Practice, C. P. — Rule for judgment — Affidavit of defense — Failure to file opinion.</p> <p>1. On a rule for judgment for want of a sufficient affidavit of defense, where the questions raised will require the construction of an act of assembly and of one of the court’s own rules, it is proper for the court in disposing of the case to file an opinion setting forth, at least briefly, the reason for its conclusion.</p> <p>Practice, C. P. — Affidavit of defense — Supplemental affidavit of defense— Rules of court.</p> <p>2. Where a rule of court prohibits the filing of a supplemental affidavit of defense after a rule for judgment is called for argument “ unless for special cause shown,” and the court permits a supplemental affidavit to be filed, the appellate court in the absence of anything disclosing the contrary, will assume that sufficient cause was shown the court below to warrant its action.</p> <p>Practice, C. P. — Replevin—Stock certificate.</p> <p>3. In an action of replevin against a corporation and two individuals, to recover a certificate of stock for 2,500 shares, an affidavit of defense is sufficient which avers that at a time after the corporation defendant had received the certificate in question from the plaintiff, the latter sold to the two individual defendants certain shares of stock of the same company, and that it was agreed by all parties that the defendant corporation should hold the certificate and have it divided into smaller certificates, so as to give the individual defendants 500 shares which were due them and which they had paid for, and that this division of the certificate had been prevented by the action of the plaintiff in notifying the company issuing the shares not to make the transfer.</p>

<p>Appeal, No. 81, Oct. T., 1908, by-plaintiff, from order of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 834, refusing to take off nonsuit in case of Levi H. Edmundson v. Monongahela Light & Power Company.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 84, Oct. T., 1908, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1905, No. 410, on verdict for plaintiff in case of Thomas Bain v. Petroleum Iron Works Company. Trespass to recover damages for personal injuries. Before Kennedy, P. J. Verdict and judgment for plaintiff for $2,500. Defendant appealed. Error assigned was (3) portions of opinion, quoted in the opinion of the Supreme Court.

<p>Appeal, No. 88, Oct. T., 1908, by defendant, from judgment of O. P. No. 4, Allegheny Co., Third Term, 1907, No. 96, on verdict for plaintiff in case of Thomas J. Conlon v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $4,312. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for plaintiff.</p>

<p>Appeal, No. 113, Oct. T., 1908, by plaintiff, from order of C. P. No. 1, Allegheny Co., Dec. T., 1907, No. 24, striking off mechanic’s lien in case of John S. Todd v. Charles H. W. Gernert, Owner, and John E. McClellan, Contractor.</p> <p>Rule to strike off mechanic’s lien. Before Ford, J.</p> <p>The only question involved was the right to file a single mechanic’s lien against three dwelling houses in a row.</p> <p>The court made absolute the rule to strike off the lien,</p> <p>Error assigned was the order of the court.</p>

<p>Contract — Illegal contract — Change of grade or road. — Municipal and property owners’ consent.</p> <p>1. The fact that a contract involves the change of grade of a public road, and that the consent of the municipality and of the property owners is necessary to the accomplishment of the work under the contract, does not make the contract void and illegal ab initio. The presumption is that such consent had been obtained or could be secured, and in either event the contract would be perfectly valid.</p> <p>Contract — Breach of contract — Measure of damages.</p> <p>2. In an action to recover damages for the breach of a contract it appeared that the defendant, a railroad company, needed a place to dump earth. The plaintiffs having such a place, the parties entered into an agreement by which the defendant secured a license or privilege to deposit on plaintiffs’ land so much earth, estimated at 150,000 cubic yards, as would be necessary to make a certain grade agreed upon. When the defendant had deposited about half the amount of earth estimated it stopped work. Held, that the measure of damages for the breach of the contract was the difference in value of the plaintiffs’ lands with the fill completed, and as it was at the time of the breach, with the fill only partially made.</p> <p>3. In such a case it is error to permit the plaintiffs to recover an amount determined by multiplying the difference between the number of cubic yards actually filled and 150,000 cubic yards, by the estimated cost per cubic yard.</p> <p>4. In such a case where the defendant denies any obligation to fill plaintiffs’ property with 150,000 cubic yards, it is not necessary for it to specifically deny its obligation to furnish the difference between the number of cubic yards actually filled and 150,000 cubic yards, as alleged in the statement of claim. The denial of the defendant’s liability to furnish the greater amount necessarily includes the lesser, and is sufficient to put upon plaintiffs the burden of establishing not only the contract, and the liability of the defendant under it, but the damages suffered by reason of the alleged breach.</p> <p>5. Plaintiffs must prove the amount of damages claimed by them for breach of contract, or they will only be entitled to nominal damages. Failure to deny the amount of damages alleged to have been sustained, does not admit them.</p> <p>6. If there be different modes of measuring damages, depending on the circumstances, the court should first hear the evidence and instruct the jury afterwards as to the proper measure to be applied. The underlying principle in such cases is that the damages must be such as might naturally be expected to follow a breach of the contract, keeping in mind the benefit which the contracting parties had in contemplation when the agreement was entered into.</p>

<p>Appeal, No. 99, Oct. T., 1908, by plaintiffs, from order of C. P. No. 2, Allegheny Co., Oct. T., 1905, No. 100, refusing to take off nonsuit in case of Christian Wunderlich and Wilhelmina Wunderlich, his wife, in right of said wife, v. The Pennsylvania Railroad Company and the Pennsylvania Railroad Company, operating the Allegheny Valley Railroad Company.</p> <p>Trespass to recover damages for injuries to land. Before Shafer, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 105, Oct. T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 138, refusing to take off nonsuit in case of Joseph Manola, a minor, by his father and next friend, Louis Manola, and Louis Manola v. Enterprise Stamping Company.</p> <p>Trespass by a boy fifteen years of age against his employer to recover damages for personal injuries. Before Swearingen, P. J.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Carriers — Common carriers — Negligence—Diversion from proper course of transit — Flood.</p> <p>1. In an action against a railroad company to recover for the loss of several carloads of grain by a flood, an averment in the statement of claim that the cars were diverted from the usual and proper course of transit by placing them in a yard particularly named, is not borne out by the proofs where the undisputed evidence is that for seven years prior to the flood all consignments of grain for delivery at the city in question, unless specially consigned to consignees who had private sidings, had been placed in the yard particularly designated for inspection and.re-consignment, that this usage was well understood and acquiesced in, and that the plaintiff knew of it and expected the cars to be placed there.</p> <p>2. In an action against a railroad company to recover for carloads of grain lost in a flood, the case is for the jury where the evidence shows that the cars were stored in a yard near a river, that as the flood came on the yard master relied on predictions of the weather bureau and the manager of a river coal company that the flood would not be beyond a certain height, while he knew that floods of a much greater height had taken place four times in five preceding years.</p>

<p>Appeal, No. 70, Oct. T., 1908, by defendants, from judgment of C. P. No. 2, Allegheny Co., July T., 1905, No. 831, on verdict for plaintiffs in case of James S. Mc-Vey and John McMurray, partners as the Iron City Heating Company, v. Isaac Kaufmann et al., trading as Kaufmann Brothers.</p> <p>Scire facias sur mechanic’s lien. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiffs for $3,886.55. Defendants appealed.</p> <p>Error assigned was in refusing binding instructions for defendants.</p>

<p>Appeal, No. 118, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 486, refusing to take off nonsuit in case of Mary Staebler, Executrix of Xavier Staebler, deceased, v. WarrenEhret Company.</p> <p>Trespass by Xavier Staebler to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>From the record it appeared that the plaintiff died pending the suit, and that his executrix was substituted as plaintiff of record.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 119, Oct. T., 1908, by plaintiff, from degree of C. P. No. 2, Allegheny Co., April T., 1892, No. 113, on bill in equity in case of the Pittsburg and West End Passenger Railway Company v. the Point Bridge Company.</p> <p>Bill in equity for an injunction. Before Over, J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree :</p> <p>And now, to wit: May 16, 1908, this cause came on to be further heard at this term, and was argued by counsel, and, upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:</p> <p>1. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for all cars which passed over the Point bridge from June 1, 1896, to November 12, 1897, at the rate of $8,000 per annum, the total sum of $11,550, with interest thereon at the rate of six per cent, from November 12, 1897, amounting to $7,260, making a total of $18,810.</p> <p>2. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for cars which crossed the Point Bridge from November 12.1897, to November 12,1907, at the rate of $8,000 per annum, the total sum of $80,000, together with six per cent interest thereon, computed upon the basis of the monthly payment due •of $666.66, amounting to $26,050, making a total of $106,050.</p> <p>3. That until further order of this court, the Pittsburg and West End Passenger Railway Company shall pay to the Point Bridge Company as compensation for such use of its bridge, in quarterly payments, at the rate of five cents per single trip for each car crossing said bridge.</p> <p>4. That the costs of this proceeding, accruing from the filing of the petition by the Point Bridge Company for the adjustment of tolls, be paid by the 'respondent, the Pittsburg and West End Passenger Railway Company.</p> <p>And now, to wit: May 16, 1908, this cause came on to be further heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:</p> <p>1. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for all cars which passed over the Point bridge from June 1, 1896, to November 12, 1897, at the rate of $8,000 per annum, the total sum of $11,550, with interest thereon at the rate of six per cent, from November 12, 1897, amounting to $7,260, making a total of $18,810.</p> <p>2. That the Pittsburg and West End Passenger Railway Company pay to the Point Bridge Company, as compensation or tolls for cars which crossed the Point bridge from November 12.1897, to November 12,1907, at the rate of $8,000 per annum, the total sum. of $80,000, together with six per cent interest thereon, computed upon the basis of the monthly payment due, of $666.66, amounting to $26,050, making a total of $106,050.</p> <p>3. That until further order of this court, the Pittsburg and West End Passenger Railway Company shall pay to the Point Bridge Company quarterly statements of the number of cars crossing the Point bridge from and after November 12, 1907, and pay to the Point Bridge Company, as compensation for such use of its bridge, in quarterly payments, at the rate of five cents per single trip for each car crossing said bridge.</p> <p>4. Either party hereto at any time may, during the continuance of this order, make application to the court, and for proper cause, may move a modification of paragraph third of this decree or such other and further order in this case as may, under the circumstances then existing, be proper.</p> <p>5. That the costs of this proceeding, accruing from the filing of the petition by the Point Bridge Company for the adjustment of tolls, be paid by the respondent, the Pittsburg and West End Passenger Railway Company.</p> <p>Error assigned was the decree of the court.</p>

<p>Evidence — Impeachment of witness — Evidence of compromise.</p> <p>1. While an offer of compromise is not admissible as evidence of liability, the distinct admission of a fact by one of the parties is not to be excluded because it was made in connection with a proposition looking to a compromise. There is less reason for excluding the proof of a statement by a witness in conflict with his testimony at the trial because in the same conversation a compromise is suggested.</p> <p>2. The right to discredit a witness by proof of contradictory statements without having first called his attention to them, is a matter that rests in the sound discretion of the court.</p> <p>3. A failure to lay a foundation for'the impeachment of a witness, becomes immaterial if the witness is recalled and given an opportunity to explain or reconcile an alleged statement made by him with his testimony.</p>

<p>Negligence — Street railways — Master and servant — Defective brake— Notice to employer — Promise of employer.</p> <p>1. An employee who continues to use a machine which he knows to be dangerous takes upon himself the risk of injury therefrom; but this rule is inapplicable if the risk does not threaten immediate danger, and the employee continues in the employment in pursuance of a promise of the employer to remedy the defect.</p> <p>2. Where a motorman operates a street car for two days knowing the defective condition of the brakes of the car, but with a promise at the close of each day that the defect will be corrected, and on the third day takes out the car with the assurance that the brakes have been repaired, and for several runs is able to control the brakes, but with the use of greater force, and finally on his last run the car gets beyond his control, and he is injured, the question of the company’s negligence is a question to be decided by a jury.</p>

<p>Appeals, Nos. 77 and 78, Oct. T., 1908, by defendant, from judgments of C. P. No. 3, Allegheny Co., Aug. T., 1905, Nos. 642 and 643, on verdicts for plaintiffs in cases of William F. Lloyd v. Haugh & Keenan Storage & Transfer Company and Maude P. Lloyd v. Haugh & Keenan Storage & Transfer Company.</p> <p>Trespass to recover damages for the loss of household effects. Before Kennedy, P. J.</p> <p>At the trial it appeared that the plaintiffs delivered to the defendant household goods and personal effects to be hauled from Pittsburg to Sewickley. At a point about halfway between these places one of the wagons containing the goods burst into flames and was destroyed with its contents in a few minutes.</p> <p>At the trial the court charged in part as follows:</p> <p>This case has taken a great deal of time in its trial, much more than it should have, if we had known the whole situation and the facts in the start. [As you have heard from the rulings of the court, much that would ordinarily have been for your consideration has been stricken out by the ruling of the court, so that your duty is very much simplified; in other words, I can say to you, you have but one duty to perform and one thing to ascertain, namely, the value of the goods of the plaintiffs that were lost while in the custody or possession of this defendant.] [1] There are two separate cases here, and you will have to find two verdicts, one in favor of Mr. Lloyd and one in favor of Mrs. Lloyd. [The defendant is a corporation engaged in the general business of hauling or moving, among other things, household goods and effects; and some time in the month of May, 1905, about two years and eight months ago, this defendant undertook to move the household goods and effects of these two plaintiffs from their residence, on Moore-wood avenue, in the eastern part of the city, to Shields station, on the Fort Wayne road, some distance below Allegheny City, perhaps sixteen or eighteen miles, and in accordance with that undertaking the defendant received into its possession on May 22 or 23, 1905, these goods, which it is claimed have been lost or destroyed, belonging to the plaintiffs.] [2] [As you have heard, the court has ruled that this defendant is a common carrier under the law, and is, therefore, liable for the loss of the goods of these plaintiffs; so that you have no business with the determination of the question as to whether the defendant was negligent in the carrying of the goods or not, but the sole question for your determination is the value of the goods that were lost while in the custody of the defendant.] [3] It seems that on May 23, these goods while in the course of transportation by the defendant to Shields station, there being six loads altogether, one of these wagon loads was destroyed by a fire at or near Dixmont station, on the same railroad, and the plaintiffs claim, and are entitled to, the value of those goods which were so lost or destroyed. These goods, the value of which you have to determine, are claimed by the plaintiffs to be of great value. Those of Mr. Lloyd are claimed to be worth between $2,100 and $2,200, while those belonging to Mrs. Lloyd are claimed by her to be worth between $3,500 and $3,600, the two claims amounting to between $5,000 and $6,000. [These plaintiffs ask a verdict from you for the amount claimed by them, and they have offered a large amount of testimony showing the value of these goods.] [4] The defendant has offered a large amount of testimony tending to show the value. 'While the plaintiffs claim these amounts, the defendant maintains that the value is not anything like the value set up by the plaintiffs. The defendant claims that many of the articles going to make up these large amounts were not worth anything at all, or, if worth anything, that it would be very small in market value. [Now, the value that you are to ascertain for these goods that were lost while in the custody of the defendant, is what is called the market valuation of these goods; that is, as to a great portion of the goods here that were lost. As to the goods of a personal nature, such as wearing apparel and other goods or effects of a personal nature, and which have no market value — and there seems to be a great many of that kind here — as to those that have no market value, the rule which you will follow is their value to the plaintiffs, not any fanciful or imaginary value they may have put on the articles as may be worth to them only, but what is the value of those articles in money to them — not any valuation outside of their money value. That is the rule which you will follow in estimating the amounts to be awarded to thése plaintiffs, severally. I cannot give you any other rules than what I have stated for you to follow in making up your verdicts to these plaintiffs. You will follow your own good judgment in getting at it from all this mass of testimony, and it will be your duty to consider it all. It is not necessary for me to go over the testimony in detail, but you must consider it all in trying to reach a fair market value for these goods that were lost or destroyed while in the custody of the defendant corporation. And as to the others, such as I have mentioned, of a personal nature, that have no market value, you will ascertain what is their value in money to these several plaintiffs.] [5]</p> <p>Yerdict and judgments for William F. Lloyd for $1,720 and for Maud P. Lloyd for $2,860. Defendant appealed.</p> <p>Errors assigned among others were (1, 5) above instructions, quoting them.</p>

<p>Equity — Equity practice — Responsive answer — Evidence—Purchase of stock.</p> <p>Where a bill in equity is filed by a partnership against a clerk in its employ to compel the transfer of certain shares of stock alleged to have been purchased by the defendant with moneys furnished by the plaintiffs, and the defendant files an answer denying that he had ever agreed to purchase the stock for plaintiffs, and avers that the moneys paid to him were moneys due him by the plaintiffs, and such responsive answer is met only by the uncorroborated testimony of one of the partners, the bill will be dismissed.</p>

<p>Appeal, No. 121, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 250, on verdict for plaintiff in case of Charles Weidman v. United Cigar Stores Company.</p> <p>Assumpsit for salary. Before Evans, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>If Mr. Weidman is entitled to recover then he is entitled to recover the balance of this year’s salary, less what he could have reasonably earned had he used due diligence to get other employment.</p> <p>Verdict and judgment for plaintiff for $1,913.50. Defendant appealed.</p> <p>Errors assigned were charge of the court as above and in refusing binding instructions for defendant.</p>

<p>Negligence — Township—Hole in road; — Question for jury.</p> <p>In an action by a woman against a township to recover damages for personal injuries caused by a fall in a hole in a road, the evidence showed that on one side of the road there was a bank that sloped to a stream several feet below. The bank had in places been worn away by the action of water, and the bed of the road was undermined. At one place where the traveled way was only eight or nine feet wide, there was a hole at the side of the road seven feet deep which had existed there for several weeks. The plaintiff knew of it, and while walking with her daughter on a dark night, tried to avoid it by keeping in the middle of the road. She stepped within eighteen inches of the hole, and the earth gave way under her feet. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Road law — Widening of street — Talcing of land — Damages—Charge— Expert witness.</p> <p>1. In an action against a city to recover damages for the taking of a portion of plaintiff’s property used for church purposes, in widening a street, the court cannot be convicted of error in charging that: “In estimating the damage sustained by the plaintiff the jury should consider the value of the plaintiff’s whole property for its most valuable use or purpose before the taking and the effect upon its value for such use of the taking of a portion of the land by the city.”</p> <p>2. A witness who testifies that he has knowledge of the value of a property before a portion of it was taken by a city, may testify as to such knowledge although he states that he had no knowledge of the value after the taking.</p>

<p>Mechanics’ liens — Release of liens — Notice—Inquiry—Case for jury.</p> <p>Where a purchaser of a building at a bankrupt’s sale has notice from the record that there is an apparent valid subsisting mechanic’s lien of record against the property, the burden is upon him to show diligent inquiry if he desires to be relieved from the payment of the lien because of an outstanding release, not of record, and not intended for his protection; and the question whether he has made such diligent inquiry and from the proper sources of information, is for the jury.</p>

<p>Appeal, No. 132, Oct. T., 1908, by-defendants, from judgment of O. P. No. 2, Allegheny Co., April T., 1906, No. 435, on verdict for plaintiffs in case of Margaret B. Dallett and Morris Dallett, her husband, in right of his wife, v. Jane B. Taggart et al.</p> <p>Ejectment for land in the second ward of the city of Pitts-burg. Before Shafer, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiffs. Defendants appealed.</p> <p>Error assigned among others -was in refusing binding instructions for defendants.</p>

<p>Negligence — Mines and mining — Coal mines — Explosion of gas — Act of May 15, 1893, P. L. 52.</p> <p>1. Under the Act of May 15, 1893, P. L. 52, unless it is made to appear that the mine foreman of a bituminous coal mine has made a requisition for materials of the owner or superintendent, and it has been refused, or it is made to appear that the owner or superintendent has failed “to keep on hand at the mines” the necessary materials or supplies, there can be no basis for a charge of negligence in failing to furnish supplies which will support an action against the owner of the mine.</p> <p>2. No recovery can be had against an owner of a coal mine for personal injuries caused by an explosion of gas, on the ground that the company had neglected to furnish proper materials, where it does not appear that such neglect was the cause of the injuries.</p> <p>3. Where a coal miner in a mine otherwise safe knows that there is an accumulation of gas in a particular entry, and goes under the order of the foreman to make the entry safe by repairing a brattice, he assumes the risk incident to the service, and if he is injured by an explosion of gas in the entry he cannot recover from the mine owner.</p> <p>4. Where a workman undertakes an extra hazardous employment which is obvious to him, he assumes the risk and danger.</p> <p>5. Where a coal mine is free from gas in dangerous quantities to such an extent that open lamps are safely used, but in a particular pocket there is an accumulation of gas, a workman, who is sent to repair a brattice and approaches the pocket with an open light in his hand, cannot recover from the mine owner damages for personal injuries resulting from an explosion of the gas caused by the open lamp.</p>

<p>Corporations — Stockholders—Inspection of books — Mandamus.</p> <p>1. A stockholder of a corporation has the right to inspect the books of the company at a proper time and in a proper way, even though his only object be to ascertain whether the business has been properly conducted; and the fact that he is interested in a competing company is not a good and sufficient reason for refusing him.</p> <p>2. A petition for mandamus to secure an inspection of the books of a corporation will be granted where the petitioner avers that during his former official connection with the company, he had knowledge of instances where funds had been improperly applied; that while large profits had been made the statements of the company did not show it; that the salaries of the officers had been irregularly and improperly increased; that the company had earned large sums of money in which dividends should have been declared; that as a stockholder he desired to inspect the books in order to be advised as to the management; and that he might be enabled to file a bill in equity if the result of his examination would justify him in so doing.</p>

<p>Appeal, No. 21, Oct. T., 1908, by plaintiff, from judgment of Superior Court, April T., 1907, No. 192, affirming judgment of C. P. No. 1, Allegheny Co., Sept. T., 1903,-No. 944, on verdict for defendant in case of Catherine F. Maisch v. Order of Americus, an unincorporated fraternal beneficial society duly organized under the laws of the Commonwealth of Pennsylvania and composed of Lee W. Squier, Edwin E. Robbins and others.</p> <p>Appeal from Superior Court. See 34 Pa. Superior Ct. 436.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Negligence — Street railways — Runaway car — Passenger—Sudden emergency — Jumping from car.</p> <p>1. If a street railway car is running away rapidly down a dangerous grade, and a passenger has a well-grounded fear of imminent danger, he is justified in obeying the instinct of self-preservation, and in jumping from the car, if that seems to be the best method of escape.</p> <p>Negligence — Inference from fact — Measure of duty — Case for jury.</p> <p>2. Where there is a doubt as to the inference to be drawn from the facts, or where the measure of duty is ordinary and reasonable care, and the degree of care varies with the circumstances, the question of negligence is necessarily for the jury.</p> <p>3. Where a jury has the fact of a rapidly moving runaway car, and a passenger seen at one instant pushing her way through the car and out upon the platform and the next instant found lying upon the street the inference may be drawn that she had fallen in an attempt to alight from the car.</p>

<p>Appeals, Nos. 74 and 75, Oct. T., 1908, by defendant, from judgments of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 155, on verdict for plaintiff in case of Jennie B. Buck, Administratrix of Robert J. Buck, deceased, and Jennie B. Buck v. City of McKeesport.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>At the trial it appeared that Mrs. Buck was injured while driving a buggy along a street in the city of McKeesport. She claimed that the accident was caused by the wheel .of the buggy striking a pile of stones on the street.</p> <p>Plaintiff’s counsel offered in evidence the two pictures, exhibits Nos. 1 and 2.</p> <p>Mr. Rodgers: “Q. When was this picture, exhibit No. 1, taken? A. They were both taken three months after the accident.</p> <p>Defendant's counsel object to the admission of exhibits Nos. 1 and 2, as not having been properly proven, and object specially to exhibit No. 1 because it contains a view of something which would be material to this case, and not having been taken until three months after the accident the picture is misleading.</p> <p>Mr. Marshall: The purpose of offering these pictures is so that the jury may understand the location of the two streets, and the ground in the immediate vicinity to the scene of the action. They are .not offered for the purpose of showing any obstructions in the street, but in order to aid the jury in determining the case and construing the evidence.</p> <p>Mr. Rodgers: The answer to that is: If counsel desire to use a plan there would be no objection to producing a plan. This is not a plan. It is a picture, and a picture of the alleged scene of the action and the surroundings at a period three months after the date of the accident. Exhibit Nó. 1 contains at least one object that might have a bearing on this case, and the particular objection to it is, that the obstruction is shown upon the picture, existing at a particular place, and any evidence of an obstruction three months afterwards, at this stage of the case, is of no value, but is, on the contrary, misleading.</p> <p>Mr. Marshall: We will follow this by proving by Mrs. Buck, that she had these taken as soon afterwards as she was able to have them taken.</p> <p>The Court: Do you insist, Mr. Rodgers, on further proof as to how these were taken?</p> <p>Mr. Rodgers: We insist upon full proof of everything.</p> <p>The Court: Otherwise I think they are competent.</p> <p>Mr. Marshall: “Q. Mrs. Buck, after you were hurt on October 15, were you confined to your bed? A. Yes, sir, for over three months. Q. Did you have these pictures taken, or your husband? A. My husband went and got a photographer and had them taken. Q. Are you familiar with that locality? A. Yes, sir. Q. You said those pictures were fair representations of the place? A. Yes, sir.”</p> <p>Mr. Rodgers: “Q. When did you see the scene of the accident after the accident? A. I didn't see it, I suppose, for nine or ten months after. I was not down there. These pictures I seen as soon as they were taken.”</p> <p>Mr. Rodgers: We insist upon our objection.</p> <p>The Court: The objection is overruled and exception noted to defendant. The exhibits are admitted for the purpose of showing the place and the surroundings of the alleged accident, in so far as the surroundings refer to the streets, intersection of streets, and the buildings fronting on the streets. [3] Plaintiff was asked this question:</p> <p>“Q. Did you work before you were married?”</p> <p>Objected to by the defense as immaterial.</p> <p>Plaintiff’s counsel offer to show whether she did or not, for the reason that she is now left to her own resources, without a husband, and unable to do any manual labor of any kind, and if she worked before she was married, to show what ability she had, if any, as to showing that loss is sustained.</p> <p>Objected to by the defense as incompetent and irrelevant.</p> <p>The Court: Her permanent injury, if she be permanently injured, would revert to her use since the death of her husband. The objection is overruled and exception noted to defendant. [4]</p> <p>“Q. Did you work before you were married? A. Yes, sir; and when I was married to Mr. Buck my mother and I kept a restaurant. Q. What did you do?”</p> <p>Objected to by defense as immaterial and irrelevant.</p> <p>The Court: You may show that she followed some particular occupation.</p> <p>Mr. Marshall: I want to show what particular part she did of it. I am not asking what she made at it.</p> <p>Objected to by defense as immaterial and irrelevant.</p> <p>The Court: Objection overruled and exception noted to defendant. •</p> <p>“ Q. What part of the work did you do? A. I done the cooking and attended to the meals as they were ordered in. Q. And of course after you were married to your husband you attended to his housework, as you have told us? A. Yes, sir. Q. Did you ever work for any person on a salary?”</p> <p>Objected to by defense as irrelevant and immaterial.</p> <p>The Court: Objection overruled and exception noted to defendant.</p> <p>“A. Before I was married, and before my mother became a widow, I lived out, at $3.00 and $3.50 a week.” [5]</p> <p>Mrs. Jennie B. Buck, plaintiff, recalled in her own behalf, testified as follows:</p> <p>Mr. Marshall: “Q. Start in with the point that you said your horse was coming down the State road on a walk? A. Yes, sir.”</p> <p>Mr. Rodgers: What do you propose to prove?</p> <p>Plaintiff’s counsel propose to prove by the witness the manner in which she crossed the street, the manner in which she was driving down the street, and the speed at which the horse was going at the time.</p> <p>Mr. Rodgers: We object, because the witness has already testified on the subject, and she should not now be allowed to make another statement on the subject at this stage of the case. -</p> <p>The Court: I suppose the only matter you want to prove by the witness is what control, if any, she had over the horse.</p> <p>Mr. Marshall: “Q. Will you tell us what control you had of the horse, Mrs. Buck?”</p> <p>Mr. Rodgers: If the purpose is to contradict her own witness, then we add that to the objection.</p> <p>Mr. Marshall: We do not propose to contradict our own witness, but we do propose to tell our idea of the accident.</p> <p>The Court: The objection is overruled. Exception to defendant. [6]</p> <p>Verdict and judgment for the administratrix for $4,520 and for Mrs. Buck for $4,120. Defendant appealed.</p> <p>Errors assigned among others were (1) in refusing binding instructions for defendant; (4-6) above instructions, quoting them.</p>

<p>Contract — Building contract — Stipulation for bond — Rescission—Damages.</p> <p>A building contract sealed and delivered stipulated for a satisfactory bond. The contractor without delivering the bond started on the work. Subsequently on the contractor being requested to furnish a bond he told the owner’s manager that application had been made to a trust company in another state for a surety bond in the stipulated sum. To this statement the manager said, “All right.” Two weeks later the owner gave the contractor three days’ notice to present the bond, or the work would be given to another contractor. Five days thereafter the bond was tendered, but the owner’s manager stated that they intended to do the work themselves, and did not wish to make the change again. The contractor was denied permission to proceed with the work on the premises. He thereupon brought suit. Held (1), that the case was for the jury as to whether there was a reasonable compliance by the contractor with the owner’s demand; (2) that it was not error to refuse consideration of the fact that the bond tendered was the bond of a foreign corporation, inasmuch as the owner did not put its refusal of acceptance on any such ground; and (3) that the damages were to be ascertained by taking the entire cost of the building to the contractor and deducting this sum from the contract price.</p> <p>Brown, Potter and Elkin, JJ., dissent.</p>

<p>Trusts and trustees — Spendthrift trust — Estate in fee simple.</p> <p>1. Where a married woman by her will gives her estate, real and personal, to a trustee for the benefit of her husband with-the usual provisions creating a spendthrift trust, and further directs that after the expiration of three years the trustee shall convey the real estate, or deliver the personal property to any person whom the husband may direct, and if the husband makes no direction to continue the trust until the death of the husband, to convey and deliver the estate to whom he may appoint by will, or in default of appointment to his heirs at law, the husband takes an estate in fee, and if he continues the estate in the hands of the trustee until his death his creditors are entitled to payment out of the estate.</p> <p>2. The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, cujus est disponere. It allows the donor to condition his bounty as suits himself, so long as he violates no law in so doing. When a trust of this kind has been created, the law holds that the donor has an individual right of property in the execution of the trust; and to deprive him of it would be a fraud on his generosity. For the law to appropriate a gift to a person not intended would be an invasion of the donor's private dominion.</p> <p>3. Whatever a chancellor would decree to be done shall be considered as though it were actually done.</p> <p>4. A man shall not be the real owner of property with full right to deal with it as he pleases, taking the full income of it to his own exclusive use and keep the same from the claims of his creditors. What he cannot do for himself in this regard cannot be done for him by another.</p>

<p>Trusts and trustees — Spendthrift trust — Estate in fee simple — Appointment by will — Heirs at law.</p> <p>Where a married, woman by her will gives her estate, real and personal, to a trustee to hold for the benefit of her husband with the usual provisions creating a spendthrift trust, with power, however, in the husband to end the trust at any time, but if he failed to do so, to continue the trust until his death, and to deliver and convey the estate to whom ,he may appoint by will, or in default of appointment to his heirs at law, the husband takes the estate in fee, and if the trust is continued until his death the estate goes to his legatees and devisees and not to his heirs at law.</p>

<p>Negligence — Explosion of gas — Evidence—Approximate cause — Question for fury.</p> <p>Where the only evidence as to the cause of an explosion of natural gas, which injured plaintiff’s house, is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would be adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions point to the cause to which defendant’s responsibility attaches, with such a degree of certainty as would justify a jury in finding it to be the approximate cause. If, however, it appears that on the day before the accident there was a break in the main which caused gas to enter plaintiff’s house, that this break was repaired before the accident, that three days after the accident gas again escaped at the point where the break occurred, and an examination showed that the repair had been negligently done, the case is for the jury.</p>

<p>Negligence — Licensee or guest — Visitor to steel plant.</p> <p>Where a party of 200 men visit a steel plant for their own pleasure and gratification, and the steel company furnishes them with a guide, and one of the party steps outside of the path chosen, which was about twenty-five feet wide, and falls through an aperture in,the floor left open for the operation of the works, and is injured, such person being a mere licensee or guest, assumes the ordinary risks of a visit to such a place, and cannot recover from the steel company for his injuries.</p>

<p>Statute of limitations — Contract — Sale — Consequential damages — Breach of warranty.</p> <p>1. If an action rests on a breach of contract, it accrues as soon as the contract is broken, although no injury results from the breach until afterwards.</p> <p>2. Where unsound personal property is sold with a warranty of soundness, the warranty is broken as soon as made, and the statute begins to run from the date of the sale, and not from the time when the buyer sustains consequential damages.</p> <p>Statute of limitations — Set-off practice — Pleading.</p> <p>3. Where the statute of limitations may be successfully set up against a claim sought to be enforced in an action of assumpsit, it may also be set up against the same claim when it is sought to be used as a set-off; nor does it matter that the statute is not pleaded by the plaintiff in reply to the defendant's plea of set-off.</p> <p>4. If the defendant goes to trial without demanding a replication to his plea of set-off, the defense to the set-off is unrestricted, and the plaintiff may avail himself of the statute of limitations or any other defense.</p>

<p>Appeal, No. 133, Oct. T., 1908, by R. M. MacKenzie, Trustee of the Estate of John F. Klein, Bankrupt, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 67, on verdict for plaintiff in case of Lawrence C. Woods v. John F. Klein.</p> <p>Replevin for a boat. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Plaintiff presented the following point:</p> <p>2. In estimating the value of the boat you must find from the evidence its market value on July 8, 1907, and from this market value you must deduct the amount of the valid and subsisting liens on said boat existing on July 8, 1907, and which have not been waived or abandoned at that time, and were not subsequently waived, abandoned or lost by the action of claimants or by legal proceedings.</p> <p>Affirmed, but should be considered in connection with the first point. [3]</p> <p>Defendant presented these points:</p> <p>2. In order to make said bills of sale valid under the terms of the mortgage from John F. Klein to plaintiff, the said terms and conditions of said mortgage, upon default, must be literally complied with, by plaintiff taking possession of the said vessel and after taking such possession, advertising and selling and conveying the same to satisfy said mortgage debt. Therefore, if the jury believe from the evidence that plaintiff, as mortgagee, or his agent, W. D. Stockdale, had not possession of said vessel at the time of said alleged sale by Stockdale, then said sale was null and void, and consequently any bill of sale given by virtue of said sale is of no effect, and the verdict must be for the defendant. Answer: Affirmed as to compliance with the terms and conditions of the mortgage. It was not necessary, however, that plaintiff take possession before the levy; after levy and until sale possession was in plaintiff by reason of the levy. [4]</p> <p>3. If the jury believe from the evidence that no consideration passed for the bill of sale from John F. Klein to plaintiff, date June 4, 1907, the same is null and void. Answer: Refused. This bill of sale was given under seal, which seal imports consideration. [5]</p> <p>4. If the jury believe from the evidence that the bill of sale of June 4, 1907, from John F. Klein to plaintiff, was given as an additional security for the debt already owing by Klein to plaintiff, then the same is a mortgage. Answer: Refused. It is not a mortgage unless the parties so intended. [6]</p> <p>5. A ship or vessel is a mere piece of personal property — a chattel — and a sale accompanied by a delivery of possession will transfer title. Therefore, if the jury believe from the evidence that possession was never delivered to plaintiff or his agent, then both bills of sale are null and void and the verdict must be for the defendant. Answer: Refused. If the sale of May 15, 1907, was in accordance with the mortgage it was valid, and plaintiff was entitled to possession. [7]</p> <p>6. That the alleged taking possession of the vessel, as testified to by W. D. Stockdale, was not a legal delivery of possession by John F. Klein, nor such as is contemplated by the terms of the mortgage, nor by the law. Answer: Refused. [8]</p> <p>' 7. The plaintiff by accepting the additional security for his debt on April 26,1907, i. e., the note of John F. Klein and W. D. Stockdale for $2,102, renewed the time of payment of said mortgage until May 14, 1907, and canceled all proceedings on the said mortgage prior to said date. Therefore, upon default on May 14, should have proceeded de novo according to the terms of said mortgage; and the evidence showing that he did not so do, the verdict must be for the defendant. Answer: Refused. [9]</p> <p>8. If the jury believe from the evidence that the sale of May 15, 1907, was not properly conducted and fraudulent, then said sale is null and void, and the bills of sale given by virtue thereof are of no effect, and therefore the verdict must be for the defendant. Answer: Refused, because there is no evidence to justify such a belief and conclusion. [10]</p> <p>8£. That the mortgage in this case not being recognized by the laws of the state of Pennsylvania, and, therefore, invalid as against claims of creditors of John F. Klein, was not a lien against said vessel, consequently all proceedings under said mortgage are null and void as against creditors, and the verdict must be for the defendant. Answer: Refused as a whole. [11]</p> <p>9. That the laws of the state of Pennsylvania do not recognize chattel mortgages such as the one in this action. Therefore, the proceedings under and by virtue of the same having taken place, and the bills of sale of May 15, 1907, and June 4, 1907, having been executed and delivered within four months of the filing of an involuntary petition in bankruptcy against John F. Klein, defendant, in the district court of the United States for the western district of Pennsylvania, the said proceedings are null and void, and consequently said bills of sale of no effect, and the verdict must be for the defendant. Answer: Refused as a whole. [12]</p> <p>10. If the plaintiff is entitled to recover at all in this action, the measures of damages would be the value of said vessel at date of the issuing of the writ in this case, July 8, 1907, less the amount of the maritime and statutory liens against the same at said date, and damages for detention not exceeding the legal rate of interest. Answer: Affirmed, with the qualification that the liens must be valid and subsisting liens as of that date and not waived, abandoned or lost subsequent to said date. [13]</p> <p>11. That under all the evidence in this case the verdict must be for the defendant. Answer: Refused. [14]</p> <p>The court charged in part as follows:</p> <p>[Whatever verdict may be rendered here, and the verdict should and will be rendered for the plaintiff, there should be stated in it the value of the boat, because, if the plaintiff is entitled to a verdict, he is entitled to the value of the boat, not. being able to get the boat itself, as of that date; and, in determining the question of value, of course, you will, after having determined that, deduct certain liens to which I will call your attention later.] [15]</p> <p>[In the early part of 1907, the plaintiff, claiming there was default in the payment of this indebtedness, authorized a constable, Mr. Stockdale, to levy on the boat, in pursuance of this mortgage, and to sell the boat, in accordance with the mortgage. The boat was levied upon by Mr. Stockdale, and, following the levy, advertisement was made, pursuant to the terms and provisions of the mortgage; and, on May 15, 1907, the boat was sold and Lawrence C. Woods was the purchaser and became the owner.] [16]</p> <p>[In pursuance of that request, the sale did not take place on April 23, as it was advertised to take place, but was postponed until May 14; and then, for some reason, on May 14, the sale was again postponed until May 15, on which date the sale took place.] [17]</p> <p>[Therefore, it is not for Captain Klein to say that this sale of May 15, 1907, was not a good sale. It is not for him to say there was no default in the payment of this indebtedness, and that, therefore, there could not be a sale. And, it is not for him to say that there were irregularities about the sale, because he himself confirmed that sale, recognized it, and acquiesced in it, as shown by the papers I have read to you. If the sale was good, and I say to you it was good, L. C. Woods became the owner of that boat on May 15, 1907; and, there being no evidence in this case to indicate that he parted with the ownership between May 15, 1907, and July 8, 1907, he was the owner of the boat on July 8, 1907. Therefore, so far as the question of ownership is concerned, there is but one verdict that you can render and that is that he was the owner of the boat at that time.] [18]</p> <p>[But you must go a step further. There must be evidence that the supplies were furnished on the credit of that particular steamboat, but that the parties looked to the steamboat for payment. If they were furnished on the credit of Captain Klein and not the steamboat, the steamboat would not necessarily be chargeable with them, and the evidence would be insufficient to charge the steamboat with them. There are certain ways of determining that question, as to whether or not the supplies were furnished on the credit of the boat. If there was a distinct agreement between the parties that the supplies were to be furnished, and were to be furnished on the credit of the boat, that would settle the matter. If there was a common understanding between them, if it had been discussed before, or if the circumstances were such as to indicate a common understanding between the parties (but that must be mutual) that the supplies were to be furnished on the credit of the boat, that would be sufficient testimony to consider and act upon. But, there must be some testimony of that kind, in order to justify you in saying these supplies, or the supplies in any particular case, were furnished on the credit of the boat. If they were not furnished on the credit of the boat, they are not liens for you to consider here at all and to deduct from the value of the boat as you may find it to be as of July 8, 1907.] [19]</p> <p>[There is the claim of James Rees & Sons, $608.16. Now, as I recollect it, the bookkeeper testified that these were charged to Klein in the books; but, as I say, that makes no difference, if the bookkeeper knows they were furnished to the "Island Queen,” and, I understand him to say he does know they were furnished to the “Island Queen.” I understand him to say they were furnished on the credit of the “Island Queen;” and, if he did say so, his knowledge was derived from the books, as I understand him. If that is so, and there is no other evidence in the case, that is, Captain Klein did not testify on that question in reference to that claim, the claim should not be allowed. Now, the stenographer has handed me here some notes of the testimony on the part of Mr. Blackmore, the bookkeeper, and the testimony on this point is this: “Q. Are we to understand that $608.16 was charged against the ‘Island Queen’ and on the credit of the ‘Island Queen’? Is that right? A. Charged up against the ‘Island Queen,’ $608.16, and appears on our books. Q. Were these supplies and work done on the ‘Island Queen’ and delivered to the ‘Island Queen’? A. Yes, sir. Q. How can you say that was charged to the ‘Island Queen’ when the caption of your account is Captain John Klein, and this is charged into that account? A. The book of original entry, the daybook, is the steamer ‘Island Queen.’ Q. And that only shows where the work was done? A. Shows who it was done for.” Now, if I am right about it, and I think I am, there is no testimony on the part of Mr. Blackmore that these supplies were furnished on the credit of that boat. There is no testimony of Captain Klein that these supplies were furnished on the credit of the boat. And, that being so, I will have to say to you that that claim should be excluded from your consideration.] [20]</p> <p>Verdict and judgment for plaintiff for $2,196.40. Defendant appealed.</p> <p>Errors assigned amongst others were (3-20) above instructions, quoting them; and (29-35) refusal of the. court to set aside the verdict on account of the alleged misconduct of the jurymen.</p>

<p>Negligence — Street railways — Wagon—Right angle collision — Case for jury.</p> <p>In an action against a street railway company to recover damages for the death of a driver killed in a right angle collision between a wagon and an electric car, the case is for the jury where the evidence for the plaintiff tends to show that the deceased’s team, after passing over the first track, was caught by the car on the second track at a crossing, and that as the feet of the horse were on this track the car was 120 feet distant, and running at a high rate of speed.</p>

<p>Election contest — School directors — Sufficiency of petition for contest— Delay in moving to quash.</p> <p>1. Proceedings to contest elections are regulated by statute and should be so construed by the courts as to protect the elective franchise. The petition should aver plainly and distinctly such facts, which if sustained by proof, would require the court to set aside the result. It should, in the language of the Act of May 19, 1874, P. L. 208, “ concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal.” This is all the statute requires, and the court is not authorized to require more by construction. This will give the respondent sufficient information of the charges of illegality which he is required to meet, and he is entitled to nothing more.</p> <p>2. The petition for an election contest' of school directors set forth the number of votes counted and returned by the election board for respondent and contestant, and the number of votes given for the contestant and not counted were stated, showing that the contestant had eleven votes more than the respondent. This was followed by ah averment of the number of legal votes in each one of three election districts which were cast for contestant, and which the election boards in the respective districts refused to count and return for him. The illegal action of the board in refusing to count the votes, was, as alleged in the petition, the result of fraud, deceit or mistake, and this unlawful action it was averred deprived contestant of election to the office of school director to which he was duly elected. Held, that the averments of the petition were sufficient under the act, and that it was error to quash it.</p> <p>3. A petition for an election contest was presented on March 12, and the court fixed a hearing on April 9, and a copy of the petition was served on respondent on March 17. Respondent did not appear on April 9, or file an answer. On May 23, the court appointed an examiner. On June 1, respondent moved to quash the petition without giving any reason for the delay. Held, that such a delay in an election contest was not contemplated by the statute and that the court was not justified in quashing the appeal unless ample and controlling reasons therefor were given by the respondent.</p>

<p>Appeals, Nos. 167, 168 and 171, from order of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 574, Feb. T., 1908, No. 642, and Aug. T., 1908, No. 320, dismissing appeal from the jury of view in case of Lydia A. Murdoch et al. v. City of Pittsburg.</p> <p>Appeal from award of jury of view. Before Evans, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the appeal.</p>

<p>Appeals, Nos. 169, 170 and 172, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1907, No. 275, dismissing exceptions to report of viewers in case of Lydia A. Murdoch et al. v. City of Pittsburg.</p> <p>Exceptions to report of viewers.</p> <p>Evans, J., filed the following opinion:</p> <p>This cause comes on to be heard on exceptions to a viewers’ report, appointed for the purpose of assessing benefits and awarding damages for the grading, paving and curbing of Darlington road.</p> <p>By the report of the board of viewérs it appears that the assessment of benefits was made to cover only the cost of the improvement; that no property was taken, injured or destroyed, and that no assessment of benefits was made to pay the damages for property taken, injured or destroyed. Therefore, under the rulings of the court in Brackney v. Crafton Borough, 31 Pa. Superior Ct. 413, no appeal would lie from the report of the viewers. The exceptions filed go simply to the question of the amount of benefits which should be assessed against the ex-ceptant’s property. There is no question as to whether the viewers proceeded upon a proper legal basis in making the report; there is no érror'in the law on the part of the board of viewers alleged. The exceptions raise simply a question of fact, namely, was the property benefited to the extent of the amount assessed against it by the viewers. And this raises the question as to whether, under such circumstances, where there is no complaint made as to the actions of the board of viewers except that it erred in judgment in determining the question of fact as to the amount of benefits which the property sustained by reason of the improvement, exceptions would lie to such a mistake on the part of the board of viewers. The question is not without some difficulty, because in view of the fact that the amendment of the act of 1891, by the Act of April 2, 1903, P. L. 124, takes away in such cases as this the right to appeal to a jury, and the denial of the property holder of the right to file exceptions and have a review of the finding of the board of viewers by the court would make, in such cases as this, the judgment of the board of viewers final and conclusive upon the parties. And yet it is hardly possible that the law contemplates that the court shall sit as a board of viewers upon the question as to the amount and character of the benefits which abutting property has sustained because of a public improvement. It would require that the court should sit as viewers; that in order to properly dispose of the matter that the court should view the premises, because no person can have a proper understanding of the effect of a public improvement upon abutting properties without going upon the premises and viewing the improvement. Certainly the law did not intend that this burden should be put upon the court. But it is argued by the exceptant that the court in its judgment could refer this back to the same or another board of viewers. It is probable that under the provisions of the act of 1891 that if the conduct of the viewers was so far wrong that the court might reasonably infer that their assessment was fraudulent, that it would be the duty of the court to refer the case to another board of viewers. But experience has taught us that the great majority of persons assessed benefits for the payment of the cost of public improvement are clearly of the opinion that their property has been assessed too high, and if in every case of exception we are to appoint a commissioner to take testimony, as requested in this case, and either pass upon the question'of the amount of the assessment or refer it back to another board of viewers, it is going to place upon the courts a burden which we think the law did not contemplate. It will be observed that the costs and expenses of these views are paid by the municipality; there is therefore no check upon exceptants by reason of the fact that a failure to sustain their position might mulct them in costs. The exceptions are dismissed.</p> <p>Error assigned was in dismissing exceptions to report of viewers.</p>

<p>Trusts and trustees — Parol trust — Evidence—Equity—Findings of fact.</p> <p>A bill in equity to establish a parol trust in stocks of a corporation can only be sustained by clear, explicit and unequivocal proof. The question before the court in such a case is as to the sufficiency of the evidence to satisfy the mind and conscience of the chancellor that a trust existed, and not what a jury might have found from it if licensed to pass upon it.</p>

<p>Evidence — Fraud on creditors — Deeds.</p> <p>1. On the trial of an issue to determine whether the grantor in a particular deed had executed it with intent to defraud creditors, where evidence of such intention has been offered, it is not error to admit in evidence deeds executed about the same time by the grantor for other real estate to his mother and other parties.</p> <p>2. On the trial of such an issue where it appears that the grantees in the deed were the brothers o'f the grantor, and there is evidence that the grantees had participated in the fraud, declarations made by the grantor subsequently to the execution of the deed that he still owned the property, are admissible.</p>

<p>Negligence — Boroughs—Defective sidewalks — Point for charge.</p> <p>1. It is reversible error for a trial court to affirm without qualification a point for charge as follows: “If evidence be given, though conflicting, against a borough, for injuries for falling upon a defective sidewalk, and that there were loose or rotten planks observable to the passer-by, which defects had been so existing for several weeks, this is sufficient evidence of knowledge on the part of the borough.” In such a case it is for the jury to determine from the conflicting evidence whether the sidewalk was defective, and if so, whether the defect was of such character, and had existed for a sufficient length of time to charge the borough with constructive notice.</p> <p>2. It is the duty of a municipal corporation, having the exclusive care and control of its streets, to see that they are kept in a condition that is safe for the passage of persons and property and if that plain duty is neglected, and thereby an injury results to anyone, the borough is primarily liable to the injured party. In such case, the municipality is not relieved from liability because it notified the owner of the sidewalk to remove the defect.</p>

<p>Negligence — Railroads—Grade crossings — “Stop, look and listen”— Proper place to stop — Case for jury.</p> <p>1. If a driver of a wagon on approaching a railroad grade crossing cannot see from the vehicle in which he is riding, he should get out and go forward to a place where he can sec; but where a driver has stopped at the usual place for stopping from which he has a view of the tracks, whether he should go forward in advance of his team to a better place to look, is a question to be determined by the jury from the circumstances of the particular case.</p> <p>2. In an action against a railroad company to recover damages for personal injuries, it appeared that the plaintiff was injured at a grade crossing where there were five tracks, on four of which rapidly moving trains ran frequently. He was riding on a long lumber wagon and was seated twenty feet back of his horses’ heads near the hind axle, a position from which he could reach the brake. He stopped when his horses were twenty feet from the tracks and he was about forty feet from them, and waited until a train had passed west 300 feet. This was the usual place where drivers stopped, but from it he could see only about 300 feet either way. Within twenty feet of the tracks there was an unobstructed view for 1,400 feet. After the train had passed, the plaintiff looked and listened as he drove on the crossing. When his horses were on the second track and the front of his wagon on the first he saw a train coming east around a curve 1,500 feet away. He hastened to get across, but one of the hind wheels of his wagon was struck when on the last rail of the fourth track by a train which, according to the testimony of his witness, was running fifty-five miles an hour, of the approach of which no warning had been given. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Promissory notes — Want of consideration — Affidavit of defense.</p> <p>In an action by a bank upon a promissory note made by the defendant to Ms own. order and indorsed by Mm, an affidavit of defense is sufficient wMch avers that the note was to be held by the plaintiff’s cashier, who acted for it in the negotiations, until certain shares, of stock held by it should be transferred to the defendant and certain notes and obligations indorsed by a third party should be delivered to him; that the promise to do these things was the only consideration for the note and that, in violation of the agreement, the note was delivered by the casMer and a transfer of the stock and delivery of the notes refused by the plaintiff.</p>

Appeal, No. 152, Jan. T., 1908, by defendant, from order of C. P. Huntingdon Co., Feb. T., 1908, No. 10, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lillian Bernhardt v. Isaac Taylor and Isaac Taylor, Trustee. Scire facias sur certified transcript from the orphans-’ court. Before Shull, P. J., specially presiding.

Appeal, No. 167, Jan. T., 1908, by John D. Dorris, Executor, from decree of O. C. Huntingdon Co., making allowance for household expenses in Estate of William Dorris, deceased, Petition for allowance for household expenses. Before Shull, P. J., specially presiding.

<p>Appeal, No. 286, Jan. T., 1908, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1908, No. 23, granting preliminary injunction in case of North Mountain Water Supply Company v. E. R. Troxell and Rosa Troxell.</p> <p>Bill in equity for an injunction. Before Fuller, J.</p> <p>The court granted a preliminary injunction which it subsequently continued.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in granting-the preliminary injunction, because it is mandatory.</p> <p>2. The court erred in granting the preliminary injunction, because the property of the defendants can only be taken by the exercise of the power of eminent domain.</p>

<p>Negligence — Master and servant — Fellow servant.</p> <p>Where the danger in working near a steam hammer in a railroad company’s shops is obvious, and is as fully understood by a workman as by his employer, the workman will be considered to have assumed the risk; and if the danger is a transitory one resulting from carelessness and inattention of fellow workmen, such as a hammerman or a blacksmith, the workman injured cannot recover from his employer.</p>

<p>Appeal, No. 234, Oct. T., 1908, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 1,072, on verdict for defendant in case of The National Bank of Tarentum v. The Equitable Trust Company of Pitts-burg.</p> <p>Assumpsit on bond of suretyship. Before Shafer, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence, quoting the bill of exceptions, and various instructions, quoting them. .</p>

<p>Appeal, No. 202, Oct. T., 1908, by defendant, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 352, on verdict for plaintiff in case of Anna Sefcik v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 235, Oct. T., 1908, by plaintiff, from order of C. P. No. 2, Allegheny Co., April T., 1906, No. 947, discharging rule for judgment for want of a sufficient affidavit of defense in case of John S. McNutt, receiver of assessments upon the statutory liability of stockholders of the Salem Church Organ Company, v. Thomas H. Bakewell.</p> <p>Assumpsit upon a foreign judgment.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Shafer, J., filed the following opinion:</p> <p>The action is assumpsit upon a judgment of a court in the state of Ohio against the defendant in favor of the creditors of the Salem Church Organ Company for |9,200. From the pleadings it appears that the Salem Church Organ Company was a corporation of the state of Ohio and that the defendant was a stockholder therein; that the constitution of Ohio made the stockholders of corporations liable to creditors of the company for its debts and liabilities to an amount equal to the stock held by them; that the company was organized in November, 1888, and that shortly thereafter defendant removed from the state of Ohio and has not since been a resident of that state; that in 1897, the church organ company became insolvent and a receiver was appointed; and that in 1898 an action was begun on behalf of the creditors against the stockholders to enforce the constitutional liability above mentioned. It appears that there was no provision of law in the state of Ohio for service by publication or otherwise upon nonresidents until such provision was made by an act of the year 1900, and that thereafter the receiver appointed by the Ohio court proceeded against the present deféndant under the provisions of the act of 1900 by advertisement as therein directed, and upon a service by advertisement only, the defendant being out of the jurisdiction of the court, the case was so proceeded in that judgment upon which this suit was brought was rendered against the defendant herein for his share of the debts of the company owing to its creditors, not exceeding the amount of stock held by him.</p> <p>The defendant has set up quite a number of matters which he claims to constitute a sufficient defense to the claim of the plaintiff in this case. We do not deem it necessary to pass upon more than one of these, as it, in our opinion, is decisive against the plaintiff. It is of course conceded that while we must give full faith and credit to the proceedings of the Ohio court, we are yet bound to inquire whether that court had jurisdiction of the person of the defendant. It is conceded by the plaintiff that as a general rule no judgment in personam which is to have extraterritorial effect can be rendered without personal service, but it is claimed that there is an exception to that rule where constructive service may be considered to have been consented to by the defendant in advance, and that this is such a case. If the Ohio statute authorizing constructive service had been in force when the defendant became a stockholder, it would be easier to argue that the defendant by becoming a stockholder consented to such service, but aside from that we are not convinced that the mere purchase of stock in a corporation is a consent to be represented by the corporation or to be a party to anything more than the necessary adjudgment of the affairs of the corporation as between stockholders. The liability upon which the action in the Ohio court was based, is not a liability to the corporation but to the creditors of the corporation. The corporation itself has no interest in it. It seems to us that the defendant is in the position of one who by force of a statute became a surety for the corporation to its creditors. We are therefore of opinion that the judgment of the Ohio court having been rendered without service upon the defendant, it can have no extraterritorial effect, and is therefore not a sufficient basis of an action here.</p> <p>The rule is therefore discharged.</p> <p>Error assigned was the order of the court'.</p>

<p>Appeal, No. 236, Oct. T., 1908, by defendant, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 222, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James F. McCaffrey v. C. A. Gibney.</p> <p>Assumpsit to recover a balance of purchase money on sale of real estate.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered judgment for $6,375.60 against defendant for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 237, Oct. T., 1908, by plaintiff, from order of C. P. No. 4, Allegheny Co., Third Term, 1908, No. 890, discharging rule for judgment for want of a sufficient affidavit of defense in case of Sharpsville Furnace Company v. W. P. Snyder, trading as W. P. Snyder & Company.</p> <p>Assumpsit for breach of contract.</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 order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Wills — Legacies—Specific legacy — Proceeds of bonds.</p> <p>Where a testator bequeaths the proceeds of two bonds to legatees, and it appears that during his lifetime the bonds were paid off, the proceeds invested in a mortgage, and, after testator’s death the mortgage was paid off, and the proceeds came into the hands of the accountant, the legatees are entitled to the proceeds, and a claim that the legacies were adeemed cannot be sustained, because the proceeds traced out and identified are intact and ready for distribution to the parties entitled thereto under the will.</p>

<p>Appeal, No. 4, Oct. T., 1909, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 728, on bill in equity in case of James W. Kinnear v. Scenic Railways Company of America.</p> <p>Bill in equity for an injunction. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree:</p> <p>That the Scenic Railways Company of America, the defendant, its officers, agents, servants and employees be, and they are hereby permanently restrained and enjoined from interfering with or attempting to remove from the property upon which the same is located, heretofore known as Luna Park, all those certain buildings and improvements located on the premises above described, known as a one-story frame pagoda entrance with 2,500 feet of surface and elevated railway connected therewith, and all machinery, apparatus and appliances in any way connected therewith or forming a part thereof, now or formerly known as the “Leap the Dips” or “Scenic Railway.”</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 11, Oct. T., 1909, by John C. Cottingham et al., executors of the last will and testament of Francis Shubert, deceased, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1904, No. 177, dismissing exceptions to auditor’s report in the matter of the assigned estate of the Prudential Trust Company.</p> <p>Exceptions to .report of J. C. Boyer, Esq., auditor. Before Brown, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Will — Trust—Trustee—Remarriage of widow.</p> <p>Testator by his will devised his homestead to his wife. He gave the remainder of his estate to trustees, and directed that a portion of the income should be paid to his wife, and the remainder should be used to pay off a mortgage. After the mortgage was paid off four-fifths of the income was to be paid to his wife for the support of herself and testator's daughter, and one-fifth to his brother; “said trust to continue during the natural life of my wife, and said money to be paid to her as long as she remains my widow, in case of her marrying, then she is to get the same interest therein as she would have had in my real estate had I died intestate.” The widow elected to take under the will, and subsequently remarried. She then claimed the right to take her interest in the real estate as widow under the intestate laws as if no trust had been- created. Held, that the trust continued during her natural life, and that upon her remarriage she was entitled to receive one-third of the trust income, instead of four-fifths as before.</p>

<p>Appeal, No. 124, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 941, on verdict for plaintiff in case of City of Pitts-burg v. John Newell.</p> <p>Appeal from award of jury of view. Before Brown, P. J.</p> <p>At the trial on the cross-examination of Edward C. Burkhart, one of plaintiff's witnesses, the following question was asked:</p> <p>Mr. Ferguson: “Q. Do you happen to know that Mr. Newell had not the possession of that property at the time that—</p> <p>Objected to.</p> <p>The Court: That is not material; we are dealing with the property.</p> <p>Mr. Ferguson: I propose to ask this witness that assuming that on June 26, 1901—</p> <p>The Court: We cannot assume something until it is in evidence. You may assume one thing or another. If you gentlemen will agree that there was a lease at that date, then it would be fair to put it to the witness, assuming that there was a lease outstanding at the time. - But that is not in evidence yet.</p> <p>Mr. Ferguson: “Q. Assuming that at the time this ordinance went into effect there was an outstanding lease on these premises under which the lessees were in possession, running for nine years and nine months from July 1, 1901; that that lease was still in force when this ordinance was passed; that under that lease Mr. Newell had no right to the possession or to disturb the possession. Would you say that Mr. Newell on January 28, 1903, was- benefited $50,000 in the market in your opinion?”</p> <p>Objected to as not cross-examination and as incompetent and irrelevant, the question at issue being the market value of the property before and after this improvement.</p> <p>The Court: Should you not in connection with the offer show the witness the lease?</p> <p>Mr. Ferguson: “Q. I show you paper marked exhibit No. 2, being a lease, as you will see, by which Mr. Newell leased to C. F. Kirschler and C. H. Toocker, partners as Kirschler and Toocker.”</p> <p>Objected to as incompetent and not cross-examination.</p> <p>The Court: It is cross-examination. The witness’ estimate is based upon the entire property in the possession of Mr. Newell. Now it is admitted that at that time there was an outstanding leasehold from Mr. Newell to someone in possession for a term of years. It seems to me it is proper cross-examination. It may be the witness would reduce his estimate if the property was incumbered to a certain extent.</p> <p>Mr. Ferguson: I will withdraw the offer if you do not want to try the case according to the facts.</p> <p>On the cross-examination of A. F. Leggate, one of the plaintiff’s witnesses, the following question was asked:</p> <p>Mr. Ferguson: “Q. Of course, if the seller could not give possession of the property at the time that it was offered in the market, and if it was subject to a lease, that would have a considerable effect upon the market value, wouldn’t it?</p> <p>Objected to as not cross-examination and as immaterial and incompetent.</p> <p>The Court: When you come to put in your case you can bring that out.</p> <p>Mr. Ferguson: I will warn the gentlemen on the other side that I will object to his rebuttal if we go on.</p> <p>The Court: I think the question is competent, but all I can see is it might make some difference, and that it would depend upon the nature of the lease. The objection overruled and bill sealed for plaintiff.</p> <p>(Question read to witness.)</p> <p>“A. Depends altogether upon the merits of the lease what he was paying.</p> <p>Mr. Ferguson: “Q.. I will show you a paper marked exhibit No. 2, being the lease of the premises in question here, made by John Newell to C. F. Kirschler and F. H. Toocker, partners as Kirschler and Toocker, for this Hotel Newell property — ”</p> <p>Counsel for plaintiff object to this method of proving a lease.</p> <p>Mr. Ferguson: “Q. For the term of nine years and nine months from July 1, 1901 — ”</p> <p>Counsel for plaintiff object to the question in the form in which it is put.</p> <p>“Q. First,.I will ask you if you don’t know as a matter of fact that Mr. Newell was not occupying these premises himself at the time this alley was widened?”</p> <p>Objected to as immaterial.</p> <p>The Court: There was an objection that the lease has not been properly proven. You can stand the witness aside and put Mr. Newell on the stand.</p> <p>Mr. Ferguson: I propose to ask the witness what would be his opinion as to the market value of the property in question if it was incumbered with a lease running for nine years and nine months from July 1,1901, in force at the time of the ordinance and never revoked.</p> <p>Objected to as being a hypothetical question, not based upon any facts in evidence in this case.</p> <p>Objection sustained and bill sealed for defendant.</p> <p>Mr. Ferguson: I desire to give notice to the city of Pittsburg that such a lease was outstanding, and call upon them to prove their case according to the facts now.</p> <p>Verdict and judgment for the city of Pittsburg for $13,000. City of Pittsburg appealed.</p> <p>Errors assigned were (1, 2)- rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 93, Oct. T., 1908, by defendant, from judgment of C. P. Butler Co., March T., 1907, No. 25, on verdict for plaintiff in case of Joseph W. Foringer v. New Kensington Stone Company.</p> <p>■ Assumpsit to recover for breach of a contract of employment. Before Galbreath, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant presented the following points:</p> <p>2. A party seeking compensation from a corporation, under a contract made with an officer of the corporation, for a breach of the contract and not for services actually rendered the cor- • poration, must not only establish the contract, but must also establish the authority of the said officer to make the contract. Answer: Under the facts in this case, this point is denied. [1]</p> <p>5. If the jury should find that the contract of hiring was for the term of three years, and the plaintiff discharged without sufficient cause, the measure of damages in this action could not be greater than the plaintiff’s salary under the contract from December 1, 1906, the time bringing this action, less what he may have earned or could reasonably have earned during that period. Answer: This point is refused. [2]</p> <p>6. Under all the evidence in this case, the verdict must be for the defendant. Answer: Refused. [3]</p> <p>Plaintiff presented this point:</p> <p>The court is respectfully requested to say to the jury that if they find the defendant company contracted with the plaintiff for his services for the period of three years and discharged him without just cause before the expiration of the term, the plaintiff is entitled to recover the full amount he would have received had he remained with the defendant for the full term, and in this case the defendant company is not entitled to any credit or mitigation of damages by reason of any money the plaintiff earned or may have earned of other labor of a different nature from that he had engaged to perform. Answer: This point is affirmed. [4]</p> <p>The jury returned a verdict for the plaintiff for $3,291.75. From this the court deducted the sum of $720, the amount admitted to have been earned by the plaintiff after his discharge. Judgment was then entered for $2,571.75. Defendant appealed.</p> <p>Errors assigned were (1, 4) above instructions, quoting them; (5) exclusion of deposition referred to in the opinion of the Supreme Court.</p>

<p>Contract — Sale—Rescission of contract — Damages.</p> <p>In an action of assumpsit on a contract, it appeared that plaintiff, a corporation, manufactured steel ingots, and that the defendant, also a corporation, rolled ingots into billets. Under the contract in suit, the plaintiff was to erect furnaces to make steel ingots for defendant, and estimated to cost $25,000. Ingots were to be delivered to the defendant from time to time in sufficient quantities to enable it to operate a twenty-inch mill. The quantity was not to exceed 100 tons per day. It was agreed that the plaintiffs should be paid for the ingots fifteen per cent profit on the actual cost of materials, labor and repairs in making the steel, and the defendant guaranteed that the amount of profits which should accrue to the plaintiff should not be less than $50,000 for the period of two years during which the contract was to run. It was further provided that the defendant should make payments on the twentieth of each month for all steel delivered during the preceding month. The defendant further reserved the right to cancel the contract at any time upon paying to the plaintiff such a sum as with the profits then accruing, to plaintiff, would equal the sum of $25,000, being the estimated cost of the investment, plus a bonus of $25,000 for the privilege of cancellation. Plaintiff erected its mill and for three months delivered all the ingots which the defendant required for its use. Plaintiff purchased raw materials at the instance and request of defendant in advance of the immediate need for manufacturing purposes. Towards the end of the second month the defendant made a demand for ingots in quantities greater than it could use. To this the plaintiff replied that, “although you do not need the ingots which you have seen fit to order in pretended compliance with your contract, we hold ourselves in readiness to continue deliveries until notified by you to stop, and will also look to you for full performance of your part of the contract.” Subsequently the defendant refused to make a monthly payment, and also refused to accept ingots, and thereafter plaintiff made no further deliveries. Held (1), that the plaintiff had done nothing to waive its rights under the contract, and that it promptly and properly objected when defendant demanded more ingots than it could use, or was entitled to under the contract; (2) that the plaintiff was entitled to recover an amount sufficient to make good the loss upon the raw materials purchased for the benefit of the defendant and at its suggestion; (3) that the defendant by its refusal to accept and pay for ingots delivered to it in accordance with the contract, brought it to an end without fault on the part of the plaintiff; and (4) that plaintiff was not entitled to recover both the profits and the cost of the plant, inasmuch as the cost of the plant was one of the elements which the profits agreed upon were to cover and replace.</p>

<p>Appeal, No. 54, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 101, on verdict for plaintiff in case of William J. Burns v. The Vesta Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Taylor, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>At the trial the court refused several offers of testimony to the effect that the ordinary method of constructing entries in coal mines was to make the height only sufficient to permit the passage of loaded cars of coal without striking the roof. [3, 4]</p> <p>When Joseph Edwards was on the stand he was asked this question:</p> <p>“Q. Mr. Edwards, considering that in this mine eight-ton motors were used for gathering coal, I ask you whether it was a safe construction of the entry to permit this roof at this point on ten butt C to remain at the height of four feet nine inches and five feet? A. Yes, sir.”</p> <p>Mr. Ewing: Object to the question: he can testify to what the facts are there.</p> <p>The Court: It is a fact for the jury to say whether it was safe or not, they can say how long they used it that way, and this was the only time they had an accident that resulted from such circumstances as claimed here and anything relating to that. Let the jury draw the inference as to whether both parties performed their duty. Bill sealed for defendant. [5]</p> <p>William Gillingham, defendant’s witness, being on the stand, was asked this question:</p> <p>“ Q. What was the proper position for a snapper to be in that was riding on the front end of the motor going down through ten butt C, or a similar place, after a trip?”</p> <p>Objected to.</p> <p>The Court: We will sustain that objection; you can ask him how his men rode; that is a conclusion of the witness that the jury must arrive at from all the circumstances of the case. Bill sealed for defendant. [6]</p> <p>The court charged in part as follows:</p> <p>[He might be required to take notice of the fact, as an incident of his employment, that a mine varies in height at different places from one cause and another, but if there was a very low place, so low that it had scooped the coal off of cars at times, other things touched it that were on the motor beside the men, that there was such a place as that in the mine, then it is for you to say whether or not it was the duty of his employer or the employer of laborers to work in a place of that kind to give them special notice that there was such a place there if they required them to work in there, to go in there, when they had never been in there.] [7]</p> <p>[Now was there anything, gentlemen of the jury, any particular place on this motor that this man, with his limited knowledge of motors and snappers’ positions, would be required to take? Was there any seat provided for him? Had he been riding on any other car that there was a seat on and when he mounted this eight-ton motor on which there was no seat, would he as a reasonable and prudent and careful man sit in the position on that car where the seat was on the other where he could perform the duties of snapper properly? All those things have to be taken into consideration by you in determining whether or not there was any negligence here on the part of the plaintiff that would defeat his rights to recover if you find the defendant was negligent.] [8]</p> <p>But while he was intent, as he claims, in watching the track ahead of him, assuming, as he had a right to assume if he had no notice to the contrary and had no knowledge of his own, that the roof was high enough for him in that position all the way through there, if he was sitting as he was, to prevent his head coming in contact with it, his head struck a low place in the roof and he was knocked off the motor and it ran over his leg.] [9]</p> <p>Defendant presented these points:</p> <p>8. Under all the evidence the verdict of the jury must be for the defendant. Answer: Refused. Now, we say, gentlemen of the jury, on that point, further, that it having been testified in this case, and I believe on the part of the defendant, that this low place in this mine was generally known. Now, “ generally known,” you would have a right to assume and the court assumes when a witness testifies that generally known to the employees who had been working in that mine and to the owners and operators, to mean both, because they had the means of knowing it; it was a stationary, fixed thing, it did not happen in a nighttime or by the fall of slate or anything of that kind, but it was a fault in the geological formation, I would understand,.or the roof by the absence of slate above the coal at that point, this sandstone, as they call it, coming down and at that low place either required them to shoot it out to get through or to dig out in the bottom sufficient to let them through to continue the driving of the entry under and at right angles to other entries. So, if the jury find from the testimony of that kind that the mine owners or operators knew or ought to have known under all the circumstances that are testified to in this case that this low roof existed in there and coal was being dragged off, then it makes no difference, the plaintiff does not have to invoke the aid of the “Employers’ Personal Liability Act” which was passed last session of the legislature. An offer of testimony was made by the defendant during the trial of the case which, if we would affirm, or would have admitted might have resulted in taking the case away from you, because that is under the bituminous mining Act of May 15,1893, P. L. 52, where the legislature of this state virtually took out of the control of the owner of a coal mine his management of the mine by saying, “You shall have a fire boss, you shall have a pit boss, you shall have a superintendent and shall have a mine foreman,” etc. The state by act of assembly created all those positions, and all that the law required a mine owner or operator to do was to employ competent men who had certificates of their fitness for said position under the mine inspectors of the mining board, and if somebody was hurt through their negligence why the state, having assumed to run that man’s business to this extent, relieved the owner of the mine from the liability and you could only hold him in case he employed incompetent officials or had knowledge that one that he had employed was incompetent, became incompetent and he had knowledge of it. But we leave it to you, gentlemen of the jury, to say whether or not such an obstruction as this faulty formation was which projected down from the roof of that mine and left a distance at this particular point, as the plaintiff claims, the lowest point where he claims his head was struck four feet eight inches, — seven inches, or whatever it was, and as claimed by the defendant four feet nine inches, maybe by another witness or two, five feet one inch,- and it existed there since this mine was opened or since the entry was driven through that formation, then the operators and owners of that mine would be charged with the general knowledge of employees and officers of the mine that this alleged obstruction was there. [10]</p> <p>6. If the jury believe from the evidence that the entry was finished in the ordinary manner and that’the plaintiff knew, from his former experience as a miner and driver, that the entry roof would be of varying height, they must find that the plaintiff assumed the risk as one ordinarily attendant upon the employment and the verdict must be in favor of the defendant. Answer: That would be affirmed, if you find that it was such a low place in that mine as was ordinary and common and that so generally known as to bind this man, whether he had been through it personally or not, but knew about the mine. [1]</p> <p>7. The Act of assembly approved June 10, 1907, P. L. 523, commonly known as the “Employers’ Liability Act,” has no retroactive effect and has no application to this case. Answer: We may affirm this point; whether the plaintiff may or may not recover in this case does not depend on the question of law raised by the point. Nor that said act may be so construed as to relieve the defendant from liability in this case if the jury find from all the evidence that the owners or operators of the mine in which the plaintiff was injured personally knew or reasonably from all the circumstances ought to have known that this low place in the roof complained of was there, and that it was a menace to the lives or limbs of its employees, lawfully on its electric motors while traveling through said mine and through said places while in the performance of their duties and in the exercise of ordinary care under the circumstances. [2]</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Errors assigned were (1, 2, 7-10) above instructions, quoting them; (2-6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 82, Oct. T., 1908, by-defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 237, on verdict for plaintiff in case of William R. Williams v. Monongahela Connecting Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Kennedy, P. J.</p> <p>The facts of the case are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,029. Defendant appealed.</p> <p>Errors assigned amongst others were in refusing binding instructions for defendant.</p>

<p>Criminal law — Assault and battery — Evidence as to another crime.</p> <p>1. A presumption of guilt cannot be raised by proof of a distinct crime unconnected with that laid in the indictment.</p> <p>2. On the trial of an indictment for assault and battery where the charge is that the defendant stabbed a woman on a public street, evidence is inadmissible to show that the defendant on the same evening, but in another street, although in the same neighborhood had attempted to assault another woman.</p> <p>3. On the trial of an indictment for assault and battery where the prosecutrix and a witness positively identified the defendant as the assailant, it is reversible error for the court not to refer to the fact that both witnesses had declared shortly after the assault that the defendant was not the assailant.</p> <p>Criminal law — Evidence—Identity—Reasonable doubt — Good reputation — Charge.</p> <p>4. No class of testimony is more uncertain and less to be relied upon than that as to identity, and where great doubt is cast upon it by the witnesses themselves there is a double reason for submitting it with great caution.</p> <p>5. On the trial of an indictment for a crime it is reversible error for the court to charge as follows: “If there is such a doubt that prevents you arriving at a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand, — still speaking about this evidence with relation to reputation, — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense, that is the material that you make use of in ascertaining whether or not he is guilty, and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple. ” Such instructions do not give the accused the benefit of the right to have his proofs as to reputation considered as the proofs of a distinct fact in determining his guilt or innocence, or of the principle that good reputation may in itself be sufficient to create a doubt that would work an acquittal.</p>

<p>Criminal law — Murder—Insanity—General insanity — Evidence.</p> <p>1. Mental unsoundness which exempts from legal responsibility for what otherwise would be felonious and therefore criminal homicide, denotes a mind so far devoid of understanding that it is unable to distinguish between right and wrong and is therefore without freedom of moral action.' However unsound in mind a man may be generally it is only when he has lost utterly this power of moral perception that he ceases to be responsible in the eye of the law.</p> <p>2. On the trial of an indictment for murder where general insanity is set up as a defense, and a large number of the witnesses, including two alienists, testify that in their opinion the defendant was of unsound mind, the court commits no error in charging as follows: “Before speaking of their (defendant’s witnesses) testimony I would also say to you that the question here is not — Was this prisoner of unsound mind? Or, if you choose to put it so — Was he insane? That, gentlemen of the jury, is not the question. The question which you will have to determine is — ■ was his mind so affected by disease as to make him irresponsible according to the standard set down by the law? And whether you approve of the law, whether the doctors approve of it, or any of us approve of it, we are bound to administer it as it is. In order to excuse the prisoner on the grounds of insanity it must be shown — and of course the burden of proof is upon him — by fairly preponderating evidence, that at the time when he committed the act his mind was so affected by disease, that he did not know the nature and consequence of his act. Or if he did know the nature and consequence of it, that he did not know that it was wrong and would be punished by law, or that he was so impelled by an impulse that he had no power whatever of resisting. That is the legal standard, gentlemen, and you will see that it is a very different standard from the mere general impression that a man is of unsound mind. If the prisoner knew the nature and quality of his act, if he knew that his act was wrong, and if he knew what he was doing at the time, he is responsible under the law.”</p>

Appeal, No. 114, Jan. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1906, No. 4,311, refusing to take off nonsuit in case of Herman G. Klein and Johanna E. Klein v. City of Philadelphia. Trespass to recover damages for the death of a boy eight years old. Before Ralston, J. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 135, Jan. T., 1908, by Frank P. Martin, from decree of O. C. Phila. Co., Oct. T., 1907, No. 717, dismissing exceptions to adjudication in Estate of Caroline Weinmann, deceased.</p> <p>Exceptions to adjudication.</p> <p>Lamorelle, J., filed the following opinion:</p> <p>The Act of April 18, 1853,- in its ninth section (P. L. 503), provides that no one shall dispose of any property by will in such a manner as to accumulate the income wholly or in part for a longer period than the minority of the person who would, if of full age, be entitled thereto but for such direction to accumulate; in event that an accumulation shall be directed otherwise, the direction shall be void, and the income, so directed to be accumulated “shall go to and be received by such person .... as would have been entitled thereto if such accumulation had not been so directed.”</p> <p>In the present case testatrix gave the sum of $3,000 to the Commonwealth Title Insurance and Trust Company to invest the same and to add income and interest thereof to the principal until her grandson reached the age of forty years, at which time he was to be paid the income of the principal and the income from the accumulation for the term of his life; after his death'the principal and accumulated income was given to such of his children as might then be living; if none, then such funds fell into the residuary estate.</p> <p>The grandson assigned his interest to Frank P. Martin, who, at the time of the audit of the executor’s account, claimed the income from the $3,000, on the ground that as the accumulation was void (the grandson being some twenty-eight years of age at the time the will became effective) he was entitled thereto as assignee of the party who would get if there was no direction to accumulate.</p> <p>The ruling of the auditing judge awarding the income of the $3,000 to the residuary legatee forms the basis of the present exception.</p> <p>This case must not be confounded with the line of authorities beginning with Washington’s Appeal, 75 Pa. 102, the latest of which is Farnum’s Estate, 191 Pa. 75, wherein the trust beginning at a time when the minority actually exists, the accumulations have been given the minor upon the attainment of the majority, despite the fact that the accumulations were in terms given to others than the minor, and in fact (notably in Stille’s Appeal, 4 W. N. C. 42), it was never intended that the cestui que trust should have them; and the minor was never the person who, if of full age,, was entitled.</p> <p>Despite the earnest and able argument of the exceptant, its fallacy lies in its confounding the principles governing this case with the doctrine laid down in the above-quoted decisions; here the grandson is neither by express words nor by necessary implication the person who would have been entitled to the income if the accumulation had not been directed, in fact, unless and until he reaches the age of forty years by the very terms of the will he gets nothing; and his assignee simply steps into his shoes. Whether the cases above cited are sound or not they embody the law; but there is no reason why their doctrine should be extended.</p> <p>The case cannot be distinguished in principle from White’s Estate, 8 Pa. Dist. Rep. 33, in which a trust was created for a grandson and until he was twenty-five years of age so much only of the income as the executors deemed sufficient for his maintenance was to be expended; when he -reached that age he was entitled to all of the income of the trust fund, which fund, with the accumulations, was upon his death limited to his children; it is to be noted that in no event were the accumulations given to him; it was accordingly held that the accumulative income up to the time the cestui que trust reached the age of twenty-five years lapsed and fell into the residue. Said Penrose, J.:</p> <p>“Accumulation is forbidden by the act no less where it results by indirection than where it is expressly ordered; the striking down of the illegal accumulation leaves the will as if it had been silent on the subject, and future gifts are not accelerated; if the accumulation relates to a vested interest taking effect in possession, the released income goes at once to the beneficiary- — if to an interest not vested in possession, the income goes to the residuary legatee or devisee, unless the residuary estate itself be the subject of the provisions, in which case the income goes under the intestate laws to the next of kin or heirs: 1 Jarman on Wills, 274; Mitcheson’s Estate, 11 W. N. C. 547; Gray on Perp., secs. 671, et seq.”</p> <p>Applying the doctrine of that case to the present one — the grandson is not given the accumulations at all; what is given him is the income from these accumulations when he reaches the age of forty — and this distinction is real and not apparent as is forcibly put by the auditing judge when he says, “The beneficiary unquestionably would have been such person (i. e., the persons spoken of in the act as entitled to the income) if the accumulated fund had been payable to him at the age of forty.” The accumulations are given to the children of the. grandson if he shall leave any, who represent at best an estate not vested in possession; the income not well given, therefore, falls into the residue and goes to the residuary legatee.</p> <p>To the same effect is Edwards’ Estate, 190 Pa. 177; testator gave his residuary estate to his executors in trust to invest the principal, and to reinvest the interest or income, and to pay his son an annual sum of not more than 1300; upon the son’s death, his children were given the original principal and the accumulations; it was held that the direction to accumulate was void, and that the released income went to the next of kin.</p> <p>In the two quoted cases the accumulation was of a part of the income only; in the present case, of the whole; while to this extent there is a difference, there is no distinction — the applied rule is that where the accumulations are not at any time given to a cestui que trust of full age at the time of testator’s death, he cannot'be the person who, within the meaning of the act, is entitled thereto if such accumulations had not been directed; they may go to the residuary legatees or to the next of kin, but never to him.</p> <p>The fifth exception, which raises the question whether the exceptant is not presently entitled to the corpus of the trust estate, need not be considered at any great length; it is sufficient to say that the will creates a valid trust for the life of the grandson, with remainder to his children, if they survive him, and with the limitation over in case they do not. Brubaker’s Appeal, 1 Mona. 447, cited as authority for this present claim, is not in point, the court there holding that there was an absolute gift of personal property and the trust a dry one. „</p> <p>The exceptions are dismissed and the adjudication confirmed absolutely.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Promissory notes — Action by indorsee against maker — Fraud—Burden of proof — Affidavit of defense.</p> <p>1. In an action on a promissory note the holder is required to show the consideration he paid for it and how it came into his hands where the defendant proves that it was put into circulation fraudulently.</p> <p>2. To support an action by the indorsee of negotiable paper against the maker, in the first instance it is only necessary for the plaintiff to put the paper in evidence, then, if the defendant proves that the paper was put in circulation by fraud, or undue means, his defense will prevail, unless the plaintiff establishes that he acted fairly and paid value.</p> <p>3. In an action by an indorsee against the maker of a promissory note, the plaintiff averred in his statement that he was a bona fide holder for value before maturity of the note, and that he took it without any notice of any defects or infirmities therein. The defendant filed an affidavit of defense in which he denied the averments of the statement, and charged that the payee named in the note acting as agent of a publisher, induced the defendant to sign the note as part consideration for a set of books, which the payee acting as said agent “falsely and fraudulently represented to be a special, limited and extra-illustrated edition,” worth a very large sum stated; that defendant was not an expert of the value of the books, and relied entirely on the representations made to him, that he gave two notes, one of which he paid, and that the other was the note in suit; that prior to maturity of the last note he discovered that the representations in reference to the books were false, and that immediately upon such discovery he notified the payee that the books were not as represented, requested him to return the money already paid and the unpaid note, and tendered a return of the books. He also averred that the plaintiff had full knowledge of the transaction, and took the note to aid the payee in the collection thereof. Held, that the affidavit of defense was sufficient to prevent judgment.</p>

<p>Appeal, No. 162, Jan. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 631, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lowry National Bank of Altoona v. Horace G. Hazard and John H. Hillman, trading as Horace G. Hazard & Company.</p> <p>Assumpsit by an indorsee against the maker of a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The averments of the affidavit of defense are set forth in the opinion of the Supreme Court.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Érror assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals — Judgment non obstante veredicto — Time for appeal.</p> <p>1. Where a judgment for defendants non obstante veredicto is reversed and the record remitted, and thereafter a judgment against the defendants is entered, the defendants’ right of appeal as to time dates from the entry of the judgment against them.</p> <p>Negligence — Master and servant — Defective appliance.</p> <p>2. The test of negligence in methods, machinery and appliances is the ordinary usage of the business; but it is the test to disprove negligence, not to prove it; and mere proof that appliances used differ from those in ordinary use gives rise to no presumption of negligence. It is, however, competent for a plaintiff to show that the method used by the defendant was unusual and more dangerous in itself than the customary method.</p>

<p>Trusts and trustees — Commissions—Assignment of commissions— Insolvent trustee.</p> <p>Where the widow and administratrix of an insolvent trustee files an account of the trust estate showing a large indebtedness by the trustee to the estate, which the trustee’s surety is compelled to pay, and it also appears that the trustee in his lifetime had assigned his commissions to his surety, the widow and administratrix has no right to demand from the substituted trustee payment of the commissions which had been assigned to the surety, and which had never been paid over by the surety to the substituted trustee.</p>

<p>Negligence — Master and servant — Independent contractor — Unsafe appliance — Electric wiring.</p> <p>1. Ordinarily an employer who engages an independent contractor to furnish his plant with light is relieved from liability for injuries to an employee caused by defective wires or appliances, if due care has been exercised in the selection of a competent independent contractor.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries caused by the alleged negligent and defective installation of electric light wiring the plaintiff’s case must fail, if he merely shows the happening of the accident without any evidence whatever of the cause of the accident and does not establish either that the defendant or the independent contractor who had installed the wiring had been negligent, or that incompetent electricians had been employed to do the work, or to examine, approve and inspect the wires and plant.</p> <p>Negligence — Res ipsa loquitur.</p> <p>3. The maxim res ipsa loquitur is the expression of an exception to the general rule applicable to cases of negligence, which is that the negligence charged will not be presumed but must be affirmatively proven.</p>

<p>Negligence — Pedestrian on street — Cab.</p> <p>A pedestrian started to cross a street at a regular crossing. Two street railway tracks were on the street. He walked one-third of the way across and stopped to let a car on the far track pass. Then before starting he looked and saw another car approaching from the same direction and seeing nothing else to hinder, he continued, and when about halfway-between the farthest track and the curb line which he was approaching, he was knocked down and run over by a cab driven at a high rate of speed. The cab came from the same direction as the two cars. Plaintiff testified that he was looking straight ahead of him, as he walked across the street, but that his line of vision took in as much as twenty feet on each side of him. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Gift — Gift inter vivos — Intention—Delivery—Trust and trustees.</p> <p>1. To constitute a gift inter vivos two essential elements must combine : An intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion- over the subject, and invests the donee therewith.</p> <p>2. What is clearly intended as a voluntary assignment or a gift, but is imperfect as such, cannot be treated as a declaration of trust. If this were not so, an expression of present gift would in all cases amount to a declaration of trust, and any imperfect gift might be made .effectual simply by converting it into a trust. There is no principle of equity which will perfect an imperfect gift, and a court of equity will not impute a trust where a trust was not in contemplation.</p> <p>3. To create a trust there must be the expression of an intention, not to create a present gift, but to become a trustee; the acts or words relied upon must be unequivocal, plainly implying that the person holds the property as trustee.</p> <p>4. Where a father declares in writing that he gives certain bonds to his son, but also provides in the writing that the bonds are not to be used until after his own death, and the gift is not followed by any delivery to the son, and there is no declaration on the part of the father that he holds the bonds or their proceeds in trust for the benefit of his son, and the father subsequently makes his will revoking all previous wills, and makes no reference in his will to the bonds, the son will not be entitled after the father’s death to the bonds or the proceeds of any that may have been sold by the testator in his lifetime.</p>

<p>Appeal, No. 201, Jan. T., 1908, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 3,666, on verdict.for plaintiffs in case of Henry Christy et ah, trading as The International Marble Company, v. William L. Price et al., trading as Price & McLanahan.</p> <p>Assumpsit on a building contract to recover for marble and slate work furnished by plaintiffs. Before Brégy, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiffs for $1,844.74. Defendants appealed.</p> <p>Errors assigned were various instructions and rulings on evidence.</p>

<p>Contract — Written contract — Change of terms — Evidence—Parol evidence.</p> <p>1. It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed, or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alterations. Where the effort is not to contradict the terms of a written contract, but merely to show a subsequent modification, or waiver of something provided for in the contract, while the burden is upon the party asserting the charge, all that is required is that the evidence in support of the claim should be convincing to the jury.</p> <p>2. Where a written contract for the sale of a business plant consisting exclusively of personal property also provides for the transfer of an unexpired portion of a lease to the purchaser, and the latter in a suit against him for the purchase money sets up as a defense that the lease had not been transferred to him, the seller may show that he had offered to make the transfer of the lease, that the purchaser had positively refused to accept the transfer, that he then made no further effort to transfer the lease, and that later on when the defendant requested the transfer it was out of the seller’s control through no fault of his, by reason of the change of ownership of the leased premises. Such evidence if believed by the jury is sufficient to sustain a verdict for the plaintiff.</p> <p>Evidence — Offer—Relevancy.</p> <p>3. It is always the duty of a party making an offer when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy. If such an offer is not apparently relevant, and no explanatory statement is made, the party making the offer cannot, on appeal, complain of its rejection.</p> <p>Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108.</p> <p>4. It is not a requirement of the Act of April 22, 1874, P. L. 108, relating to foreign corporations, that the registered agent of the corporation shall stand in any other relationship than its agent upon whom process may be served.</p> <p>5. Where the agent is a stockholder of the company, and also its secretary and treasurer, the fact that he has parted with his interest and resigned his offices, does not end his agency, but he still remains the agent of the company for the service of process.</p>

<p>Negligence — Municipalities—Doorsteps—Falling over steps.</p> <p>1. A city ordinance providing that doorsteps “shall not extend more than four feet six inches into any footway of any street fifty feet wide or upwards, or a proportionate distance into any footway in any street of less width than fifty feet,” applies to the width of a street as physically opened, but not to the width of a street as plotted upon the city plan, but not physically opened to its full width. Such an ordinance is intended to define the limit of an encroachment on the pavement so as to provide a reasonable space between the steps and the curb, and the limit of encroachment is made to depend on the actual, and not on the theoretical, width of the street.</p> <p>2. No liability can be imposed upon a city for personal injuries caused by a fall over a doorstep, where it appears that there was a safe foot-way six feet and four inches wide between the end of the steps and the curb.</p> <p>3. A city is not required to open a street to the full width plotted. This is a matter wholly within the discretion of the municipal authorities and not reviewable by the court or jury in an action to recover damages for personal injuries.</p>

<p>Promissory note — Receipt—Evidence.</p> <p>In an action upon a promissory note given under an agreement between the parties to the note in relation to the purchase of shares of a corporation, it appeared that at the time of the delivery of the note plaintiff gave the defendant a receipt acknowledging that he had received the note which was for thirty days in payment of the number of shares named, and agreeing that if the note was paid at the end of thirty days, he would deliver a certificate for the shares to defendant, and that the shares would then be the property of the defendant. Testimony for the plaintiff tended to show that the sale of the stock was complete and absolute, but that because of the defendant’s inability to pay for it at the time he requested the plaintiff to accept his note at thirty days; that the plaintiff agreed to do this after he had made inquiries as to' the defendant’s financial standing on condition that the stock, the certificate for which was in the name of a third party who had signed a blank power of attorney indorsed on its back, should be pledged with him as a collateral security; that the writing signed by the plaintiff was in pursuance of this agreement and was intended to express it, and that after the maturity of the note the defendant repeatedly promised to pay it. Held, that plaintiff’s evidence was sufficient to sustain a verdict and judgment in his favor.</p>

<p>Appeal, No. 249, Jan. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 818, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William J. Faux v. Alfred E. Fitler.</p> <p>Assumpsit upon promissory notes.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 352, Jan. T.,’ 1908, by defendant, from judgment of O. & T. Lackawanna Co., Oct. T., 1908, No. 10, on verdict of guilty of murder of the first degree in case of Commonwealth' v. Nicholas De Marzo.</p> <p>Indictment for murder of the prisoner’s wife. Before Edwards, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[I ought to state to you that the test of the defendant’s responsibility in this case is his ability to distinguish between right and wrong. When he shot his wife did he then know that he was committing an unlawful act? Did he have the capacity to understand the consequences of his act? Did he know that his act was wrong and criminal? If he did he is responsible.] [1]</p> <p>[Every fact of whatsoever kind disclosed by the evidence must be weighed by you in order to determine the defendant’s state of mind and to ascertain whether his act was intentional and premeditated, or whether it was the product of a diseased mind unable to distinguish between right and wrong.] [2]</p> <p>[From the very nature of the mental disease there can be no grading of it by degrees so as to accord with a degree in crime. In other words, if the defendant is not guilty of murder of the first degree because he was insane, he is not guilty of murder of the second degree, or of any other degree of crime. Either the offense of the defendant is wholly excused because the jury is satisfied by the preponderance of evidence of his irresponsibility, or he is guilty, because the evidence fails to so satisfy you.] [3]</p> <p>[The commonwealth claims that the defendant is guilty of murder of the first degree and of nothing else, and it is for you, gentlemen of the jury, to decide whether the commonwealth has maintained its contention beyond a reasonable doubt.] [4]</p> <p>[If the killing is the result of a fully formed purpose to take life and the act is done deliberately, the crime is murder of the first degree. In other words, if there is an intention to kill, deliberately formed and executed, it is murder of the first degree.] [5]</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were above instructions, quoting them.</p>

<p>Criminal law — Murder—Robbery—Confession—Evidence.</p> <p>1. A conviction of murder of the first degree will be sustained where the evidence shows that the deceased, an old and infirm man, had been robbed, that his death resulted from injuries inflicted at the time of the robbery, that the prisoner knew his habits, was near his room about the time of the robbery, that he subsequently pawned the watch taken from the deceased, and that the prisoner had confessed to three different persons at different times that he had entered the room of the deceased at night, had choked him, and caused him to fall from his couch to the floor, and had taken his money and his watch from his clothes.</p> <p>2. A confession of murder made at the instance of the prisoner without solicitation by anyone, and after an express caution that it would be used at the trial, the meaning of which caution could not have been misunderstood, is properly admissible in evidence at the trial.</p>

<p>Equity — Corporation—Partnership—Contract—Jurisdiction.</p> <p>"Where two men enter into a contract which they construe themselves as an agreement to purchase the whole of the stock of a corporation, share and share alike, and not as a partnership, and one agrees to provide a working capital for the corporation, and the other to become its manager at a salary, the rights of these shareholders, whatever they are, must be worked out through the corporation, and cannot be determined in a proceeding in equity treating them as partners.</p> <p>Bill in equity for an injunction to compel the transfer of stock, for an accounting, and for the determination of mutual and reciprocal obligations of plaintiff and the defendant, Doughten.</p> <p>The case was referred to George Wharton Pepper, Esq., as referee, who recommended that the prayers for relief be denied, excepting as respects the transfer of the stock.</p> <p>The court entered a decree in pursuance of the recommendation of the referee.</p> <p>The case sufficiently appears from the opinion of the Supreme Court.</p> <p>Errors assigned were in not sustaining various exceptions to referee’s findings of fact, and the decree entered in pursuance of the referee’s recommendation.</p>

<p>Arbitration — Referee—Findings of fact.</p> <p>A referee’s findings of fact as to an amount due on an accounting and as to the existence of after-discovered evidence, confirmed by the court below, will not be disturbed by the appellate court unless manifest error is made to appear.</p>

<p>Appeals, Nos. 248 and 317, Jan. T., 1908, by plaintiff and defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 4,416, on bill and cross bill in case of James V. Watson v. Michael McManus, Defendant, and the City of Philadelphia, John M. Walton, Controller of the City of Philadelphia.</p> <p>Bill in equity to restrain the collection of payment of a judgment. Before Brégy, P. J.</p> <p>The questions involved are stated in the opinion of the Supreme Court.</p> <p>The court below entered the following decree: ■■ ■</p> <p>And now, June 29, 1908, the rule of June 2, 1908, to show cause why a final decree commanding and directing the said Michael McManus, one, of the defendants herein, or his attorney, to mark to the use of James V. Watson, the judgment in the suit of Michael McManus v. The City of Philadelphia, in the court of common pleas No. 1, of December Term, 1898, No. 547, having been made absolute, it is ordered, adjudged and decreed as follows:</p> <p>1. That the said Michael McManus, defendant herein, within five days from the date of this decree mark to the use of James Y. Watson, plaintiff herein, the judgment in the suit of Michael McManus v. The City of Philadelphia, in the court of common pleas No. 1, of December Term 1898, No. 547.</p> <p>2. That in default of said Michael McManus so marking said judgment to the use of said James V. Watson as above directed, the prothonotary is hereby ordered and directed to mark said judgment to the use of said James V. Watson.</p> <p>3. That upon the marking of said judgment to the use of said James V. Watson, he, the said James V. Watson, have full power and authority to enforce payment' of the same, provided, nevertheless, that interest on said judgment of Michael McManus v. The City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, is to be calculated and to run only from the date of the filing of the referee’s report in said suit, namely, February 2, 1904, to the date of the awarding of the injunction against the city of Philadelphia in this suit, namely, January 15,1907, unless otherwise ordered by the court.</p> <p>Errors assigned were as follows:</p> <p>1. The third paragraph of the decree, quoting it.</p> <p>2. In awarding and entering the decree that interest on the judgment of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, should be calculated and run to January 15, 1907.</p> <p>3. In not entering a decree that interest on the judgment of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, should be calculated and run only from the date of the filing of the referee’s report in said suit, namely, February 2, 1904, to the date of filing the bill in equity and the issuing of the injunction in this suit restraining the said Michael McManus from collecting the said judgment from the city of Philadelphia.</p> <p>4. In authorizing the said James V. Watson to collect any interest upon the said judgment of Michael McManus against the city of Philadelphia, pending the litigation between the said James V. Watson and the said Michael McManus to determine who was entitled to be paid by the said city of Philadelphia.</p>

<p>Evidence — Witness—Opinions as to values — Expert—Replevin—Findings of fact.</p> <p>1. On an issue in replevin tried before a referee to determine the value of looms and similar machinery, a party defendant who has had large experience in the manufacture of textile goods and who has bought, used and sold looms and similar machinery may express an opinion as to value, and the referee may base his findings thereon although several witnesses for the plaintiff testify to a lower valuation.</p> <p>2. To successfully challenge the findings of a referee, it is not enough to point to evidence sufficient to support a different finding. It must be shown that there is no evidence sufficient to sustain the referee’s findings, and this is especially so after they have been considered and approved by the court below.</p>

<p>Negligence — Electric light company — Master and servant — Lineman— Failure to wear gloves — Nonsuit.</p> <p>Where a lineman in the employ of a telephone company works on a pole on which are stretched wires of the telephone company and high tension wires of an electric light company, and is injured by a shock received from a telephone wire charged from a high tension wire, he is properly nonsuited in an action against the electric light company, if it appears that he failed to wear gloves while descending the pole, and that the charging of the telephone wire was due to no improper or negligent construction by the electric light company, but was due to an improper arrangement of the wires by the telephone company.</p>

<p>Wills — Probate—Issue devisavit vel non — Undue influence — Refusal of issue.</p> <p>An issue devisavit vel non on the ground of undue influence is properly-refused, where it is shown that the testatrix, an elderly woman strong in mind, with clear intellect, knew her property and her relatives, that she dictated to counsel while alone with him the memorandum from which the, will was written, giving reasons for making the legacies and for giving nothing to the contestant who had received large gifts from her and her brothers; that later she revised the paper when alone with her counsel who explained to her the effect the changes would have in enlarging the share of the residuary legatee; and that no one interested in the will or codicil was present when the directions for writing the same were given nor at their execution.</p>

<p>Appeal, No. 210, Jan. T., 1908, by plaintiffs, from decree of C. P. Delaware Co., Dec. T., 1905, No. 140, dismissing bill in equity in case of Daniel A. Sharkey et al. v. W. Ellwood Locke and Charles I. Cronin, individually and trading as Locke & Cronin.</p> <p>Bill in equity for discovery and an account. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 36, Jan. T., 1908,'by defendants, from decree of C. P. No. 3, Phila. Co., Sept. T.-, 1904, No. 1,394, on bill in equity in case of Fannie M. Smith, executrix of the will of Uselma C. Smith, and in her own right, Robert M. Smith et al. v. Mary Markland and the West End Trust Company, trustee under the will of John Atkinson, deceased, Charles A. McCaulley et al.</p> <p>Bill in equity to cancel a deed.</p> <p>McMichael, P. J., found the facts to be as follows:</p> <p>1. The case was heard by me upon final hearing upon bill, answers and proofs. The plaintiffs were Fanny M. Smith, the widow of Uselma C. Smith, who died March 2, 1902, and four adult children of Uselma C. Smith. The defendants were-Dr. Charles A. McCaulley, J. C. Chevalier and I. j. McGeogh, the West End Trust Company, Mary Markland and Edwiñ M..Skinner.</p> <p>2. The proceeding was for the purpose of having delivered up and canceled that which purported to be a deed of conveyance of premises 1515 Green street from Fanny M. Smith, executrix and in her own right, to Mary Markland, and for the purpose also of having delivered up and canceled a mortgage of 85,000 executed by Mary Markland to the West End Trust Company, trustee, and also to have delivered up and canceled a deed from Mary Markland to Charles A. McCaulley, and for the further purpose of staying writ of fi. fa., that was issued out of C. P. 3 of September Term, 1904, No. 1,394, upon the judgment of Chevalier and McGeogh against Mary Markland, ■ and to restrain them from proceeding to collect their judgment from the premises 1515 Green street, and to place the complainants in tlpe same position as they were before the execution of the said instruments.</p> <p>3. The defendants, Dr. McCaulley, Chevalier/McGeogh‘and the West End Trust Company, were innocent of any participation of fraud hereinafter described. Mary Markland, who is the aunt of Edwin M. Skinner, and Edwin M.- Skinner were participants in the fraud. Mary Markland was the passive agent through whom the defendant Skinner carried through his covinous transaction. Edwin M. Skinner was guilty of willful, and deliberate fraud and forgery.</p> <p>4. Uselma C. Smith died May 2, 1902. By his will the title to premises 1515 Green street was vested in the widow and children of Uselma C. Smith, and, in June, 1904, the house was in the possession of Mrs. Smith and her children and they occupied it as a family residence.</p> <p>5. On June 4, 1904, Edwin M. Skinner came to Mrs. Smith and told her that parties in New York named Marcuse desired to buy the residence 1515 Green street; that they were willing to give $10,000 for it, and that they did not desire possession until the fall. On June 6, Skinner came with papers which he told her were for the purpose of showing the purchasers that there was nothing against the property and that she had power to sell. She signed the papers without reading them, and her daughter signed them as a witness. Mrs. Smith said that she thought she only signed one paper, but her signature being shown her on two pages of the alleged deed, she said it looked like her signature, but that if she signed more than one paper there must have been some trick practiced upon her by that man (Skinner). Her daughter, Charlotte F. Smith, also testified to the statements by Skinner, but she said that there were two papers»</p> <p>6. I find as a fact, that Mrs. Smith signed two papers or sheets of paper, but I also find as a fact that her signature's were procured from her by fraud and that she did not intend at the time when she signed them, or at any other time, that they should form part of a deed of conveyance of the premises 1515 Green street.- There were no seals upon the papers when Fanny M. Smith and Charlotte Smith signed the papers, and I find-as a fact that the seals were placed upon the papers subsequently.</p> <p>7. ' I also find as a fact from the evidence before me, that no delivery of the alleged deed purporting to convey the premises 1515 Green street was ever made or intended to be made by Fanny M. Smith as executrix or in her own right. I have come to this conclusion after weighing the testimony of the witnesses who were examined before me against the presumptions as to delivery arising from the acknowledgment and recording.</p> <p>8. After Edwin M. Skinner had procured by fraud the signature or signatures of Fanny M. Smith, executrix, and in her own right to the warranty clause and to the receipt, he attached these two sheets to other sheets of paper which had been drafted for him. Then he procured someone to personate Mrs. Smith before a notary public, and in that way procured the notarial certificate that Fanny M. Smith had acknowledged the deed as hers.</p> <p>9. Skinner had the alleged deed from Fanny M. Smith, executrix, to Mary Markland recorded on June 7, 1904.</p> <p>10. On June 6, Skinner made an application to the West End Trust Company for a loan of $6,000 on the premises 1515 Green street, and the West End Trust Company loaned $5,000 upon mortgage by Mary Markland.</p> <p>11. The steps by which Skinner carried out the fraudulent scheme'were ingenious and he. deceived a number of persons. I do not think it necessary to state all the facts, but only those necessary for the determination of the case. Settlement for the mortgage was made on June 13, and $5,000 was handed over in cash by the West End Trust Company to Skinner, upon the order of Mary Markland.</p> <p>12. The money was paid on June 13 by theWest End Trust Company, but the clerk who had charge of the settlement certificate requested that Skinner should get from Mrs. Smith a declaration that there were no purchase money mortgages, and this Skinner promised to bring to the company, and subsequently he did furnish to the company on June 20,1904, a writing which he dictated to Mrs. Smith as follows: “Philadelphia, June 20, 1904. West End Trust Company, Gentlemen: I hereby declare that no purchase money mortgages were given or created by the purchaser of 1515 Green street either in the form of a judgment note, bond or mortgage or in any form whatsoever. Fanny M. Smith, Extx. Fanny M. Smith. Witness : Edwin M. Skinner.”</p> <p>13. On October 14, 1904, Mary Markland signed, acknowledged and delivered to Charles A. McCaulley what purported to be a deed of conveyance of premises 1515 Green street, in the city of Philadelphia, under and subject to a mortgage of $5,000. The circumstances surrounding this alleged conveyance were briefly as follows:</p> <p>Dr. McCaulley instituted criminal proceedings against Skinner, who was charged before a magistrate with larceny as bailee, a return was made and a bill or bills were found by the grand jury charging Skinner with obtaining money under false pretenses. The alleged conveyance was made by Mary Markland at the request of Skinner to keep Skinner out of trouble, and to give him his freedom. Dr. McCaulley released Skinner of all civil liability. I have declined to find, as requested in the second request for findings of fact on behalf of the defendant McCaulley, that the- deed from Mary Markland to Charles A. McCaulley was a conveyance of the premises 1515 Green street. And I have further declined to find, as requested by the third request for findings, that the said Charles A. McCaulley had no knowledge, notice or means of knowing of any alleged right, title or interest, legal or equitable, of the said Fanny M. Smith or of any parties represented by her, or, in or to the said premises 1515 Green street. There is no evidence to show that Charles A. McCaulley had knowledge or actual notice of any alleged right of Fanny M. Smith, but she was still in the possession of the premises 1515 Green street, when the alleged conveyance was made to him by Mary Markland, and the facts and circumstances surrounding Skinner’s transactions with him ought to have put McCaulley on his guard. An inquiry of Fanny M. Smith would doubtless have developed the.true state of the case.</p> <p>14. On August 11, I. J. McGeogh, acting, as he testified, as agent for his mother, made a loan to Mary Markland, nominally of $500. Edwin M. Skinner received $400 of this money and $100 was retained by Mr. McGeogh as a commission. Subsequently, the loan to Mary Markland was increased on its face to $1,000, and a judgment note was given to J. C. Chevalier and I. J. McGeogh for $1,000, signed by Mary Markland and witnessed by Edwin M. Skinner. Five hundred dollars of this $1,000 was in renewal of the $500 which was nominally the first loan, and $300 in cash was apparently loaned to Mary Markland, although Skinner got $300 and $200 was divided between Mc-Gough and Chevalier. The $300 given to Skinner was loaned, by Chevalier to McGeogh and repaid to McGeogh by Chevalier, as appears by the testimony. The money was loaned on the record title of Mary Markland to the premises 1515 Green street, subject to a mortgage to the West End Trust Company. The lender relied for his security upon the record title, but. made no particular inquiry of Fanny M. Smith, who was still in possession, or of anyone else as to the reason why Fanny M. Smith and her children still remained in possession of 1515 Green street when they appeared to have conveyed their title to Mary Markland.</p> <p>15. On or about July 1, Mrs. Smith, who was about to leave the city for a summer vacation, saw her attorney, Mr. Mellors, and told him what Skinner had said about parties in New York desiring to buy 1515 Green street, and left the matter in- Mr. Mellors’ hands. Mr. Mellors sent for Skinner, who told him the same story he had told Mrs. Smith. Mr. Mellors told Skinner that he thought the agreement for the sale ought to be in writing, but Skinner stated that it was not necessary, because he was a friend of the Smith family. Mr. Mellors then urged that Skinner should make some payment to bind the bargain, and after some urging, Skinner paid $100 to Mr. Mellors and afterwards, in August, $400 more. No knowledge, however, of the alleged deed from Fanny M. Smith to Mary Markland, or of the mortgage by Mary Markland to the West End Trust Company, or of the alleged conveyance from Mary Markland to Dr. McCaulley, was brought to the attention of Mr. Mellors until Mrs. Smith received a notice to pay rent about January, 1905. Mr. Mellors still holds the $500 paid by Skinner.</p> <p>16. Skinner is now, and has been since the latter part of 1904, a fugitive from justice.</p> <p>17. I find as a fact that the alleged deed from Fanny M. Smith, executrix, was a forged deed.</p> <p>In this case several interesting questions have arisen and I shall dispose of them in the order of their importance.</p> <p>1. Was the alleged deed from Fanny M. Smith, executrix, etc., to Mary Markland a forged deed? After a careful consideration of the matter I have reached the conclusion that it was. Forgery.has been defined to be “the alteration of a written instrument to the prejudice of another's right.” Fanny M. Smith signed two sheets of paper which are now parts of the alleged deed without any knowledge that they were to be used as parts of a deed and without any intention that they should be so used. Seals were subsequently added and other sheets of paper were prefixed to them; this was an alteration of the writing or written instrument signed by Fanny M. Smith and to the prejudice of her right. If the case were being tried before a jury who were to determine the question of fact, evidence as to the willful and deliberate fraud of Skinner, the apparent erasures in the writings and the chain of testimony showing how the fraud was perpetrated would be submitted to the jury. But as the chancellor is to determine the questions of fact himself, I have come to the conclusion that the elements of forgery exist and that it was a forged deed. In 4 Pepper & Lewis’ Digest of Decisions, col. 5529, is found the following:</p> <p>“ Forgery includes the fraudulent making or alteration of any writing to the prejudice of another’s rights. To complete the offense there must be an actual making, the alteration by the defendant and a fraudulent intent, the existence of which is a question for the jury.”</p> <p>In Flitcraft v. Commonwealth Title Insurance & Trust Co., 211 Pa. 114, which was a case that went up from court of common pleas No. 2, and was affirmed by the Supreme Court, it was held that the alteration of the deed in that case was a forgery and the deed was thereby avoided and could not thereafter be used in any way whatsoever to the prejudice of the complainant., the court saying: “That the alteration was fraudulent in design is proven beyond a doubt; that it is material in effect is equally clear. The removal of the word ‘Trustee ’ destroyed the identity of the instrument and altered its legal import, changed the relationship of the parties and varied the mode of proof concerning their rights, and opened the way to fraud and resulted in actual damage.” Applying the law to the facts I have come to the conclusion that the deed from Fanny M. Smith to Mary Markland was a forged deed.</p> <p>2. But even if the fraud perpetrated was not technically a forgery, had the alleged deed from Fanny M. Smith to Mary Markland any validity? There was no delivery.</p> <p>In Critchfield v. Critchfield, 24 Pa. 100, it was held, first, that delivery of a deed is essential to its validity, and is a question for the jury to determine; second, a presumption arises from the recording of a deed and its possession by the grantee that it has been duly delivered; but it may be rebutted by proof that, the grantor took away the deed immediately after its execution, and kept it in his own possession during his life. In the present case I think the question whether there was or was not a delivery of the deed is a question of fact. Whatever presumptions may have arisen from the acknowledgment and recording of the deed were rebutted by positive testimony. In the case of Dayton v. Newman, 19 Pa. 194, Mr. Justice Woodward, delivering the opinion of the court, said: “Delivery maybe made by words alone, or by acts alone, or by both together, but there must be sufficient to show an intention to pass the title. Delivery is a question for a jury, and where doubt is thrown upon it by such evidence as was offered here, the court has no more right to assume it as true, and exclude all testimony to combat it, than they have to assume any other fact in the cause, and refuse to hear it questioned.” In the case of Duraind’s App., 116 Pa. 93, which'was an appeal from court of common pleas No. 2 of Philadelphia county, Hon. D. Newlin Fell delivered the opinion of the court below and his opinion was affirmed in a per curiam opinion by the Supreme Court. In that case the court said: “ A delivery is essentially necessary to give, effect to a deed. The signing and sealing thereof are insufficient to bind thé grantor, or to pass title to the vendee therein named. In the present case, no question of presumptive or conditional delivery, either to the vendee or to any person for her arises. It is conclusively shown that, although the deed was signed and acknowledged, yet in fact it remained in the possession of the person who signed it until her death. Neither the grantee named, nor the persons for whose benefit it professed to be made, gave any consideration therefor, nor were any of them present when it was signed or acknowledged, and they had no knowledge of its existence during the life of the maker. In law it was not a deed.” In the case of Benedick v. Benedick, 187 Pa. 351, in which the opinion of the Supreme Court was delivered by Mr. Chief Justice Sterrett, it was held, inter alia, “That the delivery of a deed is essential to its validity is a proposition too plain to acquire citation of authority.”</p> <p>3. Was there sufficient evidence to set aside this deed? I am of opinion, however, that the evidence was both competent and relevant, and not only sufficient to justify a jury in coming to the same conclusion at which I have arrived, but that it was clear, satisfactory and convincing.</p> <p>Upon the trial of an issue involving questions of fraud, great liberality should be allowed in the admission of evidence. Every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the .fraud shall be competent evidence: Glessner v. Patterson, 164 ■Pa. 224. In that case Mr. Justice Fell, delivering the opinion of the court, said: “The rule that great latitude should be given in investigating questions of fraud is elementary. . . . The meaning of the maxim that great liberality of evidence is to be allowed in the trial of questions of fraud is that every circumstance in the condition and relation of the parties, and every act and declaration of the person charged with the fraud, shall be competent evidence, if in the opinion of the judicial mind it bears such a relation to the transaction under investigation as in its nature is calculated to persuade the jury that the allegation of fraud is or is not well founded.”</p> <p>4. It has been urged on behalf of the West End Trust Company, which advanced $5,000 on a mortgage given by Mary Markland, and by Chevalier and McGeogh, who relied upon the record title of Mary Markland, and by Charles A. McCaulley, who received from Mary Markland that which purported to be a conveyance of a property at 1515 Green street, first, that Mary Markland had a valid title of record and that said company was entitled to rely upon said record title.</p> <p>My answer is that the defendants were entitled to rely upon the record as far as it went, but the fact that the record showed an apparent title in Mary Markland would not prevail or make valid a title which was void because the inception of the title was a forged deed or a deed which had never been delivered. It seems to me unnecessery to cite many authorities upon these points. The cases are very numerous. The law is well summed up in Reineman v. Moon, 12 Pittsburg L. J. (N. S.) 167: “No man can be deprived of his property by a forged deed or mortgage, no matter what may be the bona fides of the party who claims under it.” .This was a sci. fa. on a mortgage duly acknowledged before a magistrate.</p> <p>The Supreme Court of this state in the case of Van Amringe v. Morton, 4 Whart. 361, said: “If a deed which has been executed and acknowledged by the grantor, with a blank for the grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house, and the blank filled up, no title passes thereby, and a bona fide purchaser, for a valuable consideration from the person holding the deed, stands in no better situation than such fraudulent holder, especially if the original grantor remain in possession of the property.” In this case the deed was properly executed and acknowledged and the sole question was delivery.</p> <p>The case of Wallace v. Harmstad was before the Supreme Court of this state on three different occasions. First, in the case of Arrison v. Harmstad, 2 Pa. 191; second, in the case of Wallace v. Harmstad, 15 Pa. 462, and lastly, in Wallace v. Harmstad, 44 Pa. 492. And in the case of Wallace v. Harmstad, 15 Pa. 462, it was held: “A ground rent deed fraudulently altered by the grantor after execution and delivery is thereby rendered utterly void as it respects the covenants in favor of the grantor.” Chief Justice Gibson, in deciding this case, said, inter alia: “The doctrine of deeds stands on the principles of the common law: the doctrine of commercial instruments stands on the principles of the law merchant. A deed is a solemn and a formal act: a commercial instrument is neither solemn nor formal. A deed is not intended for circulation or to be subject to alteration by the exigencies of trade; but a promissory note or a bill of exchange may induce new responsibilities while it flits from hand to hand as if it were a part of the general currency. It is not strange, therefore, that a commercial and a common-law security should have different consequences in respect of responsibilities to third persons. A fraudulent alteration of either avoids it between the original parties; but the necessities of trade require that a bona fide holder of a bill or a note be not involved in the consequences of their dealings. On the other hand, the assignee of a bond, whether legal or equitable, takes it subject to defalcation and the equities of the obligor. A decision in the case of a commercial instrument, therefore, cannot be a precedent for a case like the present. The fraudulent alteration of a deed makes every part of it a forgery; and it is so laid in the indictment. In Rex v. Teague, 1 Eng. Cro. Ca., 35, and in Dawson’s Case, 2 East P. C. 979; s. c. 3 Chitty Crim. 1, 1042, it was held that a forgery of a material part is a forgery of the whole, because the legal effect of the whole would be changed; and it would seem to be as absurd to claim through the forgery of a deed not locked up in the party’s desk, as to claim through the theft of a horse not locked up in the owner’s stable. There is no case or book in which a deed fraudulently altered has been treated as only voidable. The authorities collected in Shepherd’s Touchstone, at page 68, prove that it is utterly void.”</p> <p>In the case of Reck v. Clapp, 98 Pa. 581, Mr. Justice Green, delivering the opinion of the court, said (p. 585): “The second point of the plaintiff’s was answered by the court below by their saying, in effect, that the defendant would not be affected by the forgery, because he could assert the rights of an innocent purchaser without notice if he used reasonable diligence to obtain access to the original papers, but without success, and the title, as recorded, was fair and free from blemish. The consequences of such a doctrine would be of a most serious character if it received the sanction of the courts. For then it would only be necessary for the forger of a deed or mortgage, after having it placed on record, to lose or destroy the original instrument and convey his title to a innocent third person for value, pretending to him that the original paper was mislaid and would be subsequently delivered. Of course, a purchaser who examines the records is protected by them as far as they can protect him, but he necessarily takes the risk of having the actual state of the title correspond with that which appears of record. The language of this court in the case of Arrison v. Harmstad, 2 Barr, 191, fully illustrates this subject: 'A deed, good in its creation, may become void by matter ex post facto, as by interlineation, erasure, or by alteration in a material part. But a deed may be good in part and void in part. It may be good against one person and void against another.’ . . . ‘ It is said that Mrs. Lewis is a bona fide purchaser without notice, and that the action may be sustained on that ground. But by conceding that she is, her situation is no better than the fraudulent grantor’s. Although the title of the grantor was, in its inception, good, it became entirely void by matter ex post facto. At the time of the assignment, the title being avoided, the assignor had nothing to convey; of course nothing passed to the assignee. It may be, and perhaps is, a hard case. Fraud may be committed on an innocent purchaser, who may find it difficult to guard against imposition. This is conceded; but it is far better to encounter this risk than to give the least countenance to any alteration whatever of a solemn instrument of writing, which would certainly be the result, if the guilty party could escape the consequences of his fraud by a transfer to a person who might assume the garb of an innocent purchaser for a valuable consideration. We cannot lay too many restraints upon trick, artifice and fraud.’ In Van Amringe v. Morton, 4 Whart. 382, it was held that if a deed which has been executed and acknowledged by the grantor with a blank for grantee’s name, be surreptitiously and fraudulently taken from the grantor’s house, and the blank filled up, no title passes thereby; and a bona fide purchaser for a valuable consideration from the person holding the deed stands in no better situation than such fraudulent holder. In the case of Wallace v. Harmstad, 8 Wright, on p. 494, Woodward, «L, speaking of the cases of Arrison v. Harmstad, 2 Barr, 191, and Wallace v. Harmstad, 3 Harr. 462, said: 'The stern ruling in those cases was applied without hesitation to a bona fide purchaser of the ground rent without notice of the fraud, so that, as far as concerns Arrison and all persons claiming under him, the part of the deed which was intended to inure to his benefit may indeed be said to be dead. It was not merely a voidable instrument, it was void. It was called a forgery and treated as such, and neither law nor equity would tolerate it even in the hands of an innocent purchaser.’ ”</p> <p>5. It is contended that the certificate of acknowledgment of the notary public to the deed from Fanny M. Smith to Mary Markland was a judicial act and conclusive as to the defendant acting upon the same in good faith, of the facts certified. The question of how far reliance is to be placed upon a notarial certificate is one of difficulty and not free from doubt. In the earliest case, which was the case of Michener v. Cavender, 38 Pa. 334, it was held that where in the mortgage of a married woman’s separate estate, the alderman falsely or by mistake, certified to the separate examination and acknowledgment of the wife (who did not sign the mortgage nor appear before him), the mortgagee will be affected by the fraud, though he was not present at the acknowledgment, nor informed of what passed. He will not be presumed a bona fide purchaser, nor is it necessary to prove notice to him of the fraud or mistake. Later cases seem to establish the doctrine that in a suit between the parties parol evidence is permissible to prove fraud or duress, but that where a purchaser, bona fide, without notice, is a party, the certificate is conclusive. The cases cited and which have been examined by me are Barnet v. Barnet, 15 S. & R. 73; Heeter v. Glasgow, 79 Pa. 83; Williams v. Baker, 71 Pa. 476; Singer Mfg. Co. v. Rook, 84 Pa. 442; Miller v. Wentworth, 82 Pa. 285; Penna. Trust Co. v. Kline, 192 Pa. 1. But none of these cases go so far as I am requested to go by the defendants here. They were all cases of acknowledgment by married women, and the judicial certificate of the notary was held to be evidence of the facts therein stated, except in Williams v. Baker, 71 Pa. 47'6. But they do not carry the doctrine to the length I am asked to go in the present case — that a certificate by a notary, that Mrs. Fanny M. Smith was present and acknowledged an instrument to be her act and deed, is conclusive, when in truth and in fact she had never so appeared. But however broad and interesting the question may be, I do not think it necessary to the decision of the present case. The rule seems to be that where there is criminal fraud or forgery the certificate of the notary or magistrate may be contradicted. To that effect is the case of Schrader v. Decker, 9 Pa. 14.</p> <p>In Singer Mfg. Co. v. Rook, 84 Pa. 442, Mr. Justice Gordon, delivering the opinion of the Supreme Court, said: “When a married woman joins her husband in a deed or mortgage to convey or incumber her separate estate, as to the bona fide vendee or mortgagee, for value, without notice of fraud or imposition in the procurement of the execution of such instrument, the certificate of the magistrate, who takes the acknowledgment, is conclusive of every material fact expressed therein. This certificate of the officer is a judicial act and cannot be impeached except for fraud. As to him who has notice, or who has parted with no valuable consideration, the wife may avoid the instrument by showing that she was entrapped into the execution of it by craft or treachery, or compelled thereto by force.” The 'cases, however, in which the purchaser for value without notice is protected are those in which the fraud or duress was upon the wife in regard to her separate acknowledgment and did not amount to a crime or offense against the commonwealth.</p> <p>Where gross fraud or imposition has been practiced upon the magistrate or notary, I do not know of any case which holds that the fraud or forgery caunot be inquired into. The doctrine' that a bona fide purchaser for value without notice shall be protected by a judicial certificate surely cannot be held to cover a case where the certificate itself was obtained by gross fraud or imposition upon the judicial officer who made the certificate. The judgment of a court of record having jurisdiction of the parties and of the subject-matter is conclusive as to the parties, but could it be held that such a judgment obtained by gross imposition on the court itself could not be inquired into by the defrauded party who never was within the jurisdiction of the court? The certificate of acknowledgment of a notary public is entitled to weight, but it may be overcome by testimony of gross fraud and crime such as was practiced in the present case. However interesting the question may be, — -“How far cana judicial certificate be relied upon?” — the question is academic in the present case, because a certificate of a notary can be inquired into and contradicted either (1) where there has been a forgery, or (2) where there has been no delivery of a deed.</p> <p>6. The defendants contend that Fanny M. Smith, whether as executrix or individually, is estopped as to the defendant, the West End Trust Company (and as to the others also), from denying that her deed to Mary Markland was a valid deed for conveyance to Mary Markland in fee the premises 1515 Green street, and also from denying that the mortgage of 15,000 from Mary Markland to the West End Trust Company is a valid lien upon the mortgaged premises. And it is contended that it does not matter whether the deed was forged or not delivered, that the effect of the estoppel is to forbid Mrs. Smith from setting up any of these facts.</p> <p>The facts relied upon to create an estoppel are: (1) The signature of at least the warranty sheet of the deed, which was meaningless unless the rest of the deed was to be attached; (2) the signature to the receipt clause of the deed; (3) the delivery of these papers and of-the two perpetual policies to the man who committed the fraud and the signature of an assignment in blank on one of them; (4) the intentional absenting of herself from the premises in order that Skinner might bring with him a man for the purpose of examination; (5) the writing of a declaration as to purchase money mortgages addressed to the party which claims the benefit of the estoppel; (6) the delivery of this declaration to it by Skinner in accordance with his promise; (7) the receipt with knowledge of payments on account of purchase money from Skinner.</p> <p>I have already discussed the signatures to the warranty sheet and the receipt clause of the deed and the willful and deliberate fraud by which Skinner obtained possession of these two papers. The delivery of the perpetual policies to Skinner was obtained by him by fraud also. The assignment in blank on one of the policies would have protected the insurance company if it had paid the return premiums to an assignee without notice of the fraud, but cannot be availed of by the defendants. The absence of Mrs. Smith from the premises did not in any way affect the defendants, because it was only for a few hours, nor does the testimony show that they were misled into the belief that she had parted with possession by any falsehood or silence of hers. The declaration as to purchase money mortgages I have •already discussed, and the delivery thereof by Skinner to the company. As-to the “Receipt with knowledge of payments on account of purchase money from Skinner,” this is not in accordance with the facts. The money was paid to Mr. Mellors to bind the bargain, as he said, and is still in his possession, but was never received by him on account of the purchase money of the property, nor did Mrs. Smith ever receive any of it from him for any purpose. Except in the matter of the declaration .by Mrs. Smith that there were no purchase money mortgages, neither the West End Trust Company, nor any of the other defendants was a party or privy, and in the case of that declaration the West End Trust Company had parted with its money before it received Mrs. Smith’s letter.</p> <p>The doctrine of estoppel is that where one has willfully, by his acts or by his silence, induced another to act, he is precluded from showing the truth. But the other party must have acted upon the faith of his silence or of that which was said, and must have acted before the acts which would have given rise to the estoppel. Thus in the case of Sensinger v. Boyer, 153 Pa. 628, Mr. Justice Williams, delivering the opinion of the Supreme Court, says: “There is no doubt about the general principle on which the doctrine of estoppel rests. Having induced action by another on a belief in a given state of facts, it is unjust to permit him who induced the action to deny the facts and strip the action of the protection which they would have afforded. But one who has not been misled cannot invoke this doctrine in his behalf. The rule is stated in McKnight v. Bell, 135 Pa. 358. If the party who seeks protection by setting up an estoppel has not been misled he is not entitled to the benefit of the doctrine. The rule is that one shall be estopped from alleging the truth, only when his falsehood or his silence has induced action by the other party that would lead to loss except for the estoppel.” In Logan v. Gardner, 136 Pa. 588, the opinion being by Mr. Chief Justice Mitchell, while it was said that, “The doctrine of estoppel in pais has been very much expanded in modern times, particularly in Pennsylvania,” the Chief Justice goes onto say: “These decisions [after citing several] rest on the ground that the circumstances were such as to raise a duty to speak, and that failure to do so is either a fraud or would work such injury as would be equivalent to a fraud if the party should not be estopped.” Examining the facts on which the claim of estoppel is based, I do not see how any reliance as to estoppel can be placed upon the signing of the deeds and the silence óf Mrs. Smith in regard to them, because she was fraudulently misled as to their character. No inquiry was made of her and she was not silent where a duty rested upon her to speak. And.as to the declaration that there were no purchase money mortgages, etc., the West End Trust Company cannot avail itself of- that because it was given after the company had parted with its money, and it is expressly held in a line of cases in Pennsylvania that this cannot operate as an estoppel: Weaver v. Lynch, 25 Pa. 449; Patton v. Borough, 40 Pa. 206; Reel v. Elder, 62 Pa. 308; Sensinger v. Boyer, 153 Pa. 628; and the other defendants did not in any way rely on this declaration.</p> <p>Nor are the defendants McCaulley, Chevalier and McGeogh in any better position, for there is no evidence that they relied upon any silence or statements made to them by Mrs. Smith.</p> <p>I have already found, as a question of fact, that Mrs. Smith has always been and is now in possession of the premises 1515 Green street,- and I think that this was a fact sufficient to put those who loaned money upon the strength of Mary Markland’s record title upon notice. See McCulloch v. Cowher, 5 Watts & Sergeant, 427. See particularly opinion of Woodward, J. (common pleas, Center county), at bottom of page 429, adopted by Supreme Court in per curiam, p. 432. In the case of Patton v. Borough of Hollidaysburg, 40 Pa. 206, it was held that the corporation defendant was not estopped as against the plaintiff from showing an earlier inceptive title than the deed, for the plaintiff had undisputed notice of possession in the borough from the time it was taken; therefore he was not misled by the deed, and hence is not in the position to claim the exclusion of the truth, which is the effect of an estoppel, lest it might injure him. As to estoppel against forgery, the decision in the case of Bank v. Wentzel, 151 Pa. 142, in which the opinion of the Supreme Court was delivered by Mr. Justice Sterrett, is interesting and instructive. There it was held that a statement by Wentzel, after examination thereof, that a certain promissory note was not a forgery did not amount to an estoppel to prevent him from setting up the forgery as a defense to the note.</p> <p>To sum up, I find that the deed from Fanny M. Smith, executrix and in her own right, to Mary Markland, was a forged deed,'and that it should be delivered up and canceled; that the mortgage by Mary Markland to the West End Trust Company should be delivered up and canceled; that the alleged deed of conveyance from Mary Markland to Charles A. Mc-Caulley should be delivered up and canceled; and that the judgment in favor of J. C. Chevalier and I. J. McGeogh has no validity or lien against the premises 1515 Green street.</p> <p>' I direct notice to be given by the prothonotary to counsel for the various parties who appeared before me, that unless exceptions are filed within ten days from the date of the filing of the findings and opinion of the court, a decree will be entered in accordance therewith. Counsel for complainants to prepare and submit such a decree.</p> <p>The court dismissed exceptions to the adjudication, McMichael, P. J., filing the following opinion:</p> <p>Counsel for the defendant, the West End Trust Company, urges four circumstances in support of the exceptions to the findings of the chancellor in this case to sustain his contention that even though the deed in question might have been a forgery the plaintiff was estopped from entering the defense of forgery or non-delivery of the deed as against thé West End Trust Company. The grounds of estoppel set up were the conduct of the plaintiff, Fanny M. Smith; first, in having placed her signature upon the papers which were afterwards incorporated into the piece deed; second, in having signed a fire insurance policy on the house in question in blank; third, in having allowed the representative of the trust company under the guidance of Mr. Skinner to examine the property in question when she was not present; fourth, in having signed a paper as to no purchase money obligations.</p> <p>At the argument on these exceptions counsel practically agreed that the paper purporting to be the deed was a forgery, and further that the doctrine of ratification could not apply to make this forgery a good deed, but that the equitable principle of estoppel applied to prevent the plaintiff from setting up forgery or non-delivery under the rule that if one of two innocent parties must suffer the one most at fault in causing the loss will be obliged to bear the burden. We do not conceive it necessary for the purpose of deciding this case to pass upon the question as to whether or not the equitable doctrine relied upon by the trust company can prevail in the case of a forged deed. As to personal property the rule is that an owner cannot be divested of his property without his consent, unless he has placed it in the custody of another and given him the apparent right to dispose of it. Should the principle of this rule be held to apply to real estate we do not feel that the facts in this case would be sufficient to estop the plaintiff from setting up her title as against the alleged title of the trust company. As to the execution of the blank pages by the plaintiff a careful reading of these pages will make it apparent to anyone that to a lay mind the paper as signed could well have appeared and been intended as nothing more nor less than a document to be shown to a prospective purchaser to certify that the person signing the same had a good title to the real estate in question and would so warrant. This paper was unsealed and not acknowledged at the time of signing, and the receipt which appears on this paper does not mention any sum and uses the words “indenture” and “consideration,” words which might well fail to convey their real meaning to the lay mind. Further, the name of no one appears in these papers excepting that of the said plaintiff herself, the other party simply being called “the grantee.” We can well believe that the said plaintiff placed her signatures to these papers without realizing their real purport or the purpose for which they might be used. We do not feel that a person signing papers such as these would naturally have anticipated the possibility that they would subsequently be attached to other pages containing a description of her real estate, the whole completing a deed conveying her real estate, so as to estop her from setting up the contrary as against others who might be deceived to their loss. The evidence in this case shows that when this paper, consisting of two pages, was executed by the plaintiff, she was informed and believed that she was merely executing a paper to be shown to a prospective purchaser, one Marcuse, of New York. A view of the forged deed itself with these two pages incorporated shows erasures and the words “for herself and her heirs,” “and her heirs” and “and her heirs” written over these erasures immediately after the word “Smith” wherever it occurs. The two pages signed by her after being incorporated in the forged deed read as follows: “And the said Fanny M. Smith, for herself and her heirs does by these presents, covenant, grant and agree, to and with the said grantee, her heirs and assigns, that she the said Fanny M. Smith, and her heirs all and singular the hereditaments and premises herein above described and granted, or mentioned and intended so to be, with the appurtenances, unto the said grantee, her heirs and assigns, against her the said Fanny M. Smith, and her heirs and against all and every. . . . Person or Persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from, or under her, them, or any of them, .... shall and will warrant and forever defend.</p> <p>“ In witness whereof, the said parties to these presents have hereunto interchangeably set their hands and seals the day and year first above written.</p> <p>Sealed and delivered in the presence of us: (Signature) Charlotte F. Smith (Signature) Oscar Low, Jr. (Signature) Fanny M. Smith, (Seal) Executrix. Fanny M. Smith, (Seal) (Signature)</p> <p>“ Received, the day and date of the above indenture, of thé above named grantee the full consideration hereinbefore mentioned.</p> <p>* “ (Signature) Fanny M. Smith, Extx..</p> <p>“ (Signature) Fanny M. Smith.”</p> <p>A formal acknowledgment here follows.</p> <p>The signing of these two pages and delivery of them to Skinner is practically all there is in the case to support the contention of the trust company as to the estoppel of the plaintiff. We fail to see in this aspect of the case that gross negligence which would warrant us in holding her estopped from setting up the fraud upon her or of holding her subordinated to the rights of the mortagee. We do not see that the execution of the fire policy in blank could have had any effect one way or the other. Neither do we see that the fact the plaintiff was not at the house at the time the representative of the trust company called to examine the property has any bearing upon the question of estoppel. It appears that when the representative of the trust company called he knew that this plaintiff would be out, and that he did not go there for the purpose of interviewing her as a person in possession of the property, but simply to look at the property to see if it was a good security for the amount of the loan. The declaration which was signed by the plaintiff as to no purchase money obligations was not delivered to the trust company until at least seven days after they had parted with their money, and, therefore, was not relied upon by the trust company at the time they parted with their money and cannot act in any sense as an estoppel against the plaintiff. This declaration is exceedingly vague.- It reads as follows:</p> <p>“Philadelphia, June 20, 1904.</p> <p>“West End Trust Company:</p> <p>“I hereby declare that no purchase money mortgages were given or created by the purchaser of 1515 Green St., either in the form of a judgment note, bond or mortgage, or in any other form whatsoever.</p> <p>“Fanny M. Smith.”</p> <p>We can well believe that plaintiff when she wrote this paper at the dictation of Skinner did not know the purpose for which the paper was to be used and supposed that she was referring to “the purchase” of the property under whith she had acquired the title, and not to the fraudulent transfer of the property which had taken place without her knowledge only a week before, as stated in her testimony. Therefore, the signing of the paper under such circumstances and laboring under such a belief could not even be characterized as an act of carelessness on her part that was likely to deceive anyone. It is argued that this paper would work an estoppel as it was a fulfillment of the verbal promise made by Skinner on the day he received the money. This would practically mean ratification after the act, and no principle of equity can be found which holds that one may by construction of law be held to have ratified an action of which he was in absolute ignorance. That it would operate as a ratification of a forged deed is still more offensive to all equitable principles.</p> <p>As to the alleged acknowledgement which was placed upon this forged deed it is unnecessary to further discuss it other than to make reference to the case of Reineman v. Moon, 12 Pitts-burg Legal Journal (N. S.), 167, which rules that, “No man can be deprived of his property by a forged deed, and against such a defense the magistrate’s certificate of acknowledgment is not conclusive, no matter what may be the bona fides of the holder.”</p> <p>We entirely agree with the conclusion of the chancellor in this case that there never was a real delivery of the so-called deed. Mrs. Markland, the grantee named in the deed, never authorized Skinner to accept delivery for her, and, in point of fact, she did not even know that such a deed was in existence at the time of the acknowledgment and recording thereof, which are depended upon in this case to show delivery. The facts simply show a forged paper made up by a swindler, who, without authority from the grantor and without the knowledge of the person whose name is used as grantee, secured ah illicit certificate of acknowledgment by deceit practiced on a notary and placed the paper on record.</p> <p>■ After giving the contentions of the exceptants a most careful consideration we are not convinced of any error in the adjudication of the chancellor.</p> <p>The exceptions are all dismissed.</p> <p>Error assigned was decree entered in accordance with the opinion.</p>

<p>Equity — Specific performance — Husband and vnfe — Sale of real estate— Statute of frauds.</p> <p>Equity will not compel a married woman specifically to perform a contract entered into by her husband for the sale of his real estate which she did not sign, although she was present when a small portion of the purchase money was paid to her husband with her apparent assent and approval. Such an agreement as to the wife is within the statute of frauds and cannot be enforced by a decree for its specific performance,</p>

<p>■ Banks and banking — Trust companies — Double liability of stockholders —Act of May 11,1874, P. L. 135, and April 29,1874, P. L. 73.</p> <p>1. The Act of May 11,1874, P. L. 135, which imposes a double liability upon “all stockholders in banks, banking companies, saving fund institutions, trust companies, and all other incorporated companies doing the business of banks, or loaning and discounting moneys.as such in this Commonwealth,” does not apply to trust companies incorporated under the general corporation act of April 29, 1874, and supplements thereto. The words “trust companies" as used in the act of May 11, 1874, apply only to such trust companies as were created by special acts passed prior to the adoption of the new constitution, and which were given the right to engage in a banking business.</p> <p>2. The double liability of corporation stockholders does not exist .unless imposed by statute, and statutes imposing such liability are strictly construed.</p> <p>3. There is nothing in the Acts of May 24,1881, P. L. 22, May 9,1889, P. L. 159, or May 29, 1895, P. L. 127, which imposes a double liability on stockholders of trust companies incorporated under the Act of April 29, 1874, P. L. 73.</p>

<p>Negligence — Municipalities—Sewer inlet — Streets.</p> <p>Where the cover of a sewer inlet is broken, and remains unrepaired for at least two weeks with actual notice to the city department, and becomes covered with muddy water mixed with slush and ice, a woman who steps upon it without any knowledge of its existence, and is injured by its giving away under her, may recover from the city damages for her injuries.</p>