Volume 225 — Pennsylvania State Reports

<p>Appeal, No. 118, Jan. T., 1909, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1904, No. 12, on verdict for plaintiff in case of Alexandria Water Company v. National Surety Company.</p> <p>Assumpsit on a bond of suretyship. Before Woods, P. J.</p> <p>At the trial under the instruction of the court the jury returned a verdict for plaintiff for $14,520.64.</p> <p>On a motion for judgment non obstante veredicto, Woods, P. J., filed the following opinion:</p> <p>William M. Powell & Company entered into a written contract with the Alexandria Water Company, to install a water system in the borough of Alexandria, of said county. Under the terms of said contract the said William M. Powell & Company agreed, inter alia, as follows:</p> <p>“The said party of the second part agrees to execute to the said party of the first part bonds in amount equal to the amount of this contract for constructing a plant with said security for the faithful performance of this contract and indemnify the said party of the first part from loss, costs, or damages for or by reason of any liens, claims, or demands for material.”</p> <p>In pursuance to the provision contained in said agreement, the said William M. Powell & Company produced a bond executed by the National Surety Company, whereby the said National Surety Company became surety for the said William M. Powell & Company for the faithful execution of said water system.</p> <p>Among the conditions of the said bond is the following:</p> <p>“Now, if the above bounden principals shall, well and truly keep, do and perform, each and every, all and singular, the matters and things in said contract set forth and specified to be by the said principals, kept, done and performed at the times and in the manner in said contract specified and shall pay over, make good and reimburse to the above named obligee (water company of Alexandria), all loss and damage which said obligee may sustain by reason of failure or default on the part of the said principals (William M. Powell & Company), then this obligation shall be void, otherwise shall remain in full force and effect.”</p> <p>Following the above condition of said .bond there are certain things to be performed by the defendant in this case which read as follows:</p> <p>“Recovery hereunder against the surety company shall be subject to the following conditions precedent:</p> <p>“1. The obligee shall perform the covenants performable by the obligee of the said contract.</p> <p>“ 2. The obligee shall immediately notify the surety by registered letter addressed to the surety at its principal offices in the city of New York, of any default in any manner as and when such default shall occur by the principals of any matter and thing performable by the principals specified in the said contract.</p> <p>“ 4. Any failure of the obligee to comply to the requirements of the said conditions precedent shall relieve this surety from all liability under this bond.”</p> <p>The water system was completed on or about December 1,1903, and on or about January 16,1904, the Alexandria Water Company was notified by the said American Car & Foundry Company that the said William M. Powell & Company had failed and neglected to pay for the cast iron pipe and specials which had been used by the said contractors in the construction of the said water system, and upon the said day the Alexandria Water Company, by its attorney, notified the defendant, the National Surety Company, of said default on the part of said William M. Powell & Company, and suit was brought to recover the costs of said pipe by the American Car & Foundry Company. The suit, American Car & Foundry Company v. The Alexandria Water Company and William M. Powell & Company, was tried and finally determined in favor of the American Car & Foundry Company and the Alexandria Water Company were compelled to pay to the said American Car & Foundry Company, the amount of said judgment.</p> <p>This suit is now brought against the National Surety Company, the defendant, to recover the amount for which the Alexandria Water Company was compelled to pay and is founded upon the bond given by the National Surety Company to indemnify the said Alexandria Water Company against any default on the part of William M. Powell & Company. In the trial of the case, after the plaintiff had rested, the defendant by their attorneys asked the court to direct a compulsory nonsuit for the reasons at that time stated; the court then reserved its decisions and directed the defendant to proceed with its defense. At the close of the testimony the attorney for the defendant asked the court to direct a verdict for the defendant for the reasons assigned in the request for a compulsory nonsuit, which reads as follows:</p> <p>1. Because the plaintiff has not exhibited such a case by its pleadings and evidence as entitles it to a recovery against the defendant.</p> <p>2. The contract to which the bond in suit refers, and which by its terms is made a part thereof, and the performance of which on the part of the obligee is made a condition precedent to liability on the part of the defendant, or the right to recover thereon against the defendant, provides that monthly estimates be made upon which payment shall be made from time to time, less ten per cent, which estimates shall be made upon the first of the month, and the testimony on the part of the plaintiff shows affirmatively that no such estimates were made as was provided by the contract.</p> <p>3. Because it appears by the testimony on the part of the plaintiff that no monthly estimates whatever were made except those made on October 10 and November 10. The portion of the contract here invoked, which prescribed the duty of the plaintiff respecting the estimates, is as follows (23 of specifications): “On the first of each month the engineer will estimate the quantity of work done during the month previous; 90 per cent of the work so estimated shall be paid for within ten days. On the completion of the entire work the contractor shall be paid 90 per cent of the final estimate. One-half of the balance, or 5 per cent shall be retained until the work had been tested satisfactorily to the engineer and the remaining 5 per cent shall be retained for a period of four months as a guarantee that the contractor will repair any leaking joints or irregularities in the street surface that may develop after the work has been accepted. If the contractor shall fail to repair and make good any defects that may develop during that period, the Water Company reserves the right to use the money retained for that purpose.”</p> <p>4. Because it appears by the testimony of the plaintiff that no estimate whatever was made for work done in the month of November, and no estimate whatever was made for work thereafter done.</p> <p>5. Because the alleged additional contract made after the completion of the work was in fact for work done under the contract, and is nowhere separated from the contract except by the averments in the plaintiff's pleadings or statement. That in fact that work was an extension of the work which is alleged to have been completed on November 30, 1903, and that it consisted substantially of an extension of pipe which had been previously laid. That it was arranged for in the early part of November, nearly a month before the time stipulated that the contract work was to be done; that the material which entered into the alleged new contract was blended with material under the contract proper; that the payments for it and for the contract proper were blended, that the credits were blended as appears both by the oral testimony and by the writings exhibited by the plaintiff. Furthermore that it entered into the lien, and constituted a part thereof, and there was single recovery for the items constituting the lien, part of which were upon the original contract and part of which were upon the alleged additional contract, and being a part of the contract proper, and differing in no essential from it and from other work done under it, it could only be contracted for upon the conditions and stipulations provided in the contract for additional work, or extension of the work under the contract, none of which are either alleged or shown to have been complied with. The portion of the contract imposing upon the plaintiff its duties with respect to such additional work is as follows: “It is mutually agreed between the parties to this agreement that if any change, alteration or omissions or additions are made in the .work during the progress of the work, and such changes, alterations, omissions or additions are ordered by the engineer in writing the same shall be made and performed by the parties of the second part, according to the prices agreed upon for that particular portion of the work on which the said parties of the second part may be engaged; or in the event that no price for additional work ordered by the engineer has been agreed upon, the same shall be performed by the said party of the second part at the price to be agreed upon before such extra work has been commenced.”</p> <p>6. Because the plaintiff company failed to retain the ten per cent as provided by the’contract 'upon estimate made in making the final payment, and also failed to comply with the other provisions of the contract relating thereto.</p> <p>7. For the reason that it appeared by the testimony of the plaintiff’s treasurer that no inquiry whatever was made as to the existence of liens against the property, or whether or not there has been any default in any of the stipulations, prior to the time that final payment was made, was a failure of duty upon the part of the plaintiff in its relation to the defendant as surety both by reason of that relation and also by reason of what appears in the fourth paragraph of the contract of September 8,1903, which by the terms of the bond is made part of the bond, to wit:</p> <p>“4. It is understood and agreed that when the work contemplated in this agreement shall have been performed agreeably to the specifications and to the satisfaction of the engineer and before final payment shall have been made, the parties of the second part shall give satisfactory evidence, if called for, that all bills and claims against the said parties of the second part that in any way might remain as a lien against the work, are fully paid and discharged.”</p> <p>The first reason is to the effect that the plaintiff has not exhibited such a case by its pleadings and evidence as entitles it to a recovery against the defendant. This reason will be considered in connection with the other reasons.</p> <p>The second, third and fourth have reference to the performing of certain conditions on the part of the Alexandria Water Company, as contained in the agreement between William M. Powell & Company and the Alexandria Water Company in the construction of the said water system, with special reference to that part of the agreement which provides that monthly estimates be made upon which payments shall be made from time to time. It is provided that these estimates shall be made by the engineer and shall be paid for within ten days. The evidence shows that these payments were made on October and November upon written estimates from the engineer. Mr. Phillips further testifies that he made the last payment on a settlement with Mr. York, the engineer. The contract does not say that these estimates must be in writing, but that the estimates must be by the engineer. We are satisfied that this was a substantial compliance with the condition of the contract, and therefore these reasons are overruled.</p> <p>The fifth partakes of the alleged additional contract made after the completion of the work, and it is claimed by the defendant that this contract is nowhere separated from the alleged contract except by the averments in the plaintiff's pleading or statement. Under the original contract all additions to the work were to be under the supervision of the engineer. The evidence in this case shows that Mr. Phillips entered into a new and separate contract with William M. Powell & Company to. run a short pipe line to the Pennsylvania railroad station, and the evidence further shows that this contract was made entirely independent of the engineer who had charge of the original contract; the prices paid for the pipe were different, and the evidence shows that it was done for other considerations. We do not think that the Alexandria Water Company violated the provisions of the original contract in this particular.</p> <p>We do not think that the sixth reason is sustained by the evidence.</p> <p>The seventh and last reason has reference to the following claims in said original agreement:</p> <p>“ It is understood and agreed that when the work contemplated in this agreement shall have been performed agreeably to the specifications and to the satisfaction of the engineer and before final payment shall have been made the parties of the second part shall give satisfactory evidence, if called for, that all bills and claims against the said party of the second part that in any way might remain as a lien against the work, are fully paid and discharged.” And it is claimed by the defendant that because the Alexandria Water Company, the plaintiff, did not demand evidence of the payment of all bills and claims against the contractor before the final settlement with them that there was a breach of a contract and, therefore, the surety is discharged. Under this clause of the contract it does not provide that it was necessary for such a call for said evidence of payment of bills, but it provides that the contractors shall, if called for, give such satisfactory evidence.</p> <p>This original contract is made a part of the bond upon which suit is brought in this case, and the fact that the Alexandria Water Company did not call for such evidence does not relieve the defendant because that is one of the risks assumed by the defendant when it became surety. They had it in their power to call for these satisfactory evidences of payment if they saw fit, and they cannot now escape liability because the plaintiff in this suit failed to call for such satisfactory evidences of payment. The position taken by the defendant is that these conditions precedent were to be fully and literally complied with on the part of the plaintiff in this suit.</p> <p>In all the positions taken by the defendant there is no contention that the surety was in any way prejudiced or injured, but claimed that there having been, as it contends, a noncompliance with the strict interpretation of the contract, that it is, therefore, relieved of any liability. While the rule of law is that where a party secured, does some act which changes the position of the surety to his injury or prejudice, the surety is no longer bound, yet that act must be to the detriment of the surety. When the act of the obligee is a breach of the contract it must be to the prejudice of the surety company before it can be relieved. “ If there was change in the contract that would affect the surety or increase his liability he would be discharged:” Miller v. Eccles, 155 Pa. 36. It has been held in Holme v. Brunskill, L. R. 3 Q. B. Div. 495: “Whenever it is self-evident that the alteration or departure is neither a substantial one nor one that can be prejudicial to the surety, it is regarded as an immaterial one.”</p> <p>The defendant company became surety for William M. Powell & Company to indemnify the Alexandria Water Company against any default on the part of the contract, and unless the Alexandria Water Company was guilty of nonperformance of the contract so as to increase the risks of the National Surety Company, the defendant, it would not be relieved.</p> <p>We have given this case a great deal of thought and have reached the conclusion that there has been no material or substantial variations from the original contract on the part of the Alexandria Water Company and that the defendant has not been prejudiced by any behavior on the part of the plaintiff in connection with the contractors under the original contract and that nothing has been shown by which the defendant can be discharged from liability.</p> <p>The defendant is a compensated surety company having for its object, “The guaranteeing of the fidelity of persons holding places of public or private trusts. Guaranteeing the performances of contracts other than insurance policies and executing or guaranteeing bonds and undertakings required or permitted in all acceptances or proceedings or by law allowed.” The very loss which the plaintiff in this action sustained arose by reason of William M. Powell & Company failing to pay for material which they purchased from the American Car & Foundry Company and for which a judgment was obtained on a mechanic’s lien through the courts, and this is one of the very conditions in the contract and for which the defendant in this case became surety for William M. Powell & Company; and for which they indemnified the Alexandria Water Company. To be sure the water company had certain duties to perform, but we fail to find in all the evidence any material or substantial variation from the contract, between the water company and William M. Powell & Company, on the part of the plaintiff in this action; they had reason-to rely upon the National Surety Company for protection. If the water company deviated from the original contract it in no way worked an injury or prejudiced the surety. To our mind the water company did everything, under the contract, to protect the defendant in this case.</p> <p>DECREE.</p> <p>And now, March 10,1909, the motion and reasons for a compulsory nonsuit are overruled, and the motion and reasons for a judgment for the defendant, are refused and overruled, to which the defendant excepts and bill sealed.</p> <p>Error assigned was in entering judgment on the verdict.</p>

<p>Appeal, No. 312, Jan. T., 1908, by plaintiff, from order of C. P. No. 2 Phila. Co., Sept. T., 1906, No. 5,020, refusing to take off nonsuit in case of John J. Sloan v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the case.</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. 61, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 2,615, on verdict for plaintiff in case of Katherine Veit v. The Class & Nachod Brewing Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Magill, J.</p> <p>For the facts see the opinion of the Supreme Court and 216 Pa. 29.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 106, Jan. T., 1909, by-defendant, from judgment of C. P. Erie Co., Nov. T., 1907, No. 90, on verdict for plaintiff in case of Reuben A. Cook v. Erie Electric Motor Company. Trespass to recover damages for personal injuries. Before Walling, P. J. In addition to the facts stated in the opinion of the Supreme Court it appeared that the accident happened on the night of December 4, 1906, when it was dark, and that the electric car was running at a high rate of speed.

Appeal, No. 80, Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 3,614, on verdict for plaintiffs in case of Allen G. McLean by his father and next friend, Allen McLean, and the said Allen McLean in his own right v. The A. Schoenhut Company. Trespass to recover damages for personal injuries. Before Sulzberger, P. J. The opinion of the Supreme Court states the case.

<p>Insurance — Life insurance — Payment of premiums — Days of grace— Failure to pay premiums — Forfeiture.</p> <p>Where a policy of life insurance provides that “after the first premium shall have been paid a grace of thirty days, during which the contract shall remain in force, will be allowed in the payment of premiums by the insured or by anyone for him,” and it appears that the insured paid the first premium and died without paying the second and within thirty days after it became due, the failure to pay the second premium within the days of grace does not involve a forfeiture of the policy.</p>

Appeal, No. 22, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 1,323, on verdict for plaintiff in case of J. S. Sanders v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Lynch, P. J. At the trial it appeared that the plaintiff was riding on the evening of July 16, 1905, in an automobile operated by his son-in-law.

<p>Negligence — Railroads—Crossing—Sudden emission of steam — Fright of horse — Evidence—Case for jury.</p> <p>Where a railroad company permits an engine to stand at a grade crossing in such a position as to cover the whole of the sidewalk and extend into the street several feet, and while in this position causes steam to be blown off from the engine without any warning or notice, and thus frightens a horse attached to a carriage passing in front of the engine at the time, and as a result the driver of the horse is injured, a verdict and judgment against the company for the injuries sustained is proper.</p>

<p>Appeal, No. 82, Oct. T., 1909, by defendant, from judgment of O. & T. Lawrence Co., June T., 1908, No. 1, on verdict of guilty in case of Commonwealth v. Rocco Racco.</p> <p>Indictment for murder. Before William E. Porter, J., specially presiding.</p> <p>At the trial and from the record it appeared that the prisoner was indicted for the murder of Seeley Houk, a game warden in Lawrence county. The prisoner took the stand on his own behalf and on cross-examination was asked whether he had not been convicted and sentenced for larceny, assault and battery, wounding, and obtaining money under false pretenses. To all of which he answered, no. [6-16]</p> <p>F. P. Dimaio, a detective, was permitted under objection and exception to testify that the prisoner had confessed to him the commission of the crimes as to which he had been cross-examined. [17]</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (6-17) rulings on evidence, quoting the bill of exceptions.</p>

<p>Practice, C. P. — Appearance—Appearance de bene esse.</p> <p>1. An appearance by the defendant cures any defect or irregularity in the service of the writ. The appearance may be either in person or by counsel, but the defendant will also be regarded as having appeared if he give bail to the action, if he file an affidavit of defense, if he make defense before arbitrators or appeal from an award, or if he agree that an amicable action may be entered.</p> <p>2. If a defendant wishes to attack the regularity or'sufficiency of the writ, or question the jurisdiction of the court without submitting to the jurisdiction for the trial of the cause on its merits, he may do so by entering an appearance de bene esse for that specific purpose. If the court sustains his contention he is not in court, or subject to the court’s jurisdiction, and the merits of the case cannot be inquired into. If, on the other hand, the court rules against the defendant, he either may take an appeal, or he may consider himself in court, and defend the action on its merits. If he chooses the latter course and files an affidavit of defense and a plea, such action will be regarded as an appearance by him, and he cannot thereafter raise any question as to any irregularity or insufficiency in the service of the writ.</p> <p>Insurance — Accident insurance — External bodily injuries.</p> <p>3. In an action on a policy of accident insurance to recover damages for the death of a railroad postal clerk, alleged to have been caused by external bodily injuries, the ease is for the jury where the evidence on behalf of the plaintiff was in effect that the deceased was found in a semi-conscious condition in his car after an eighteen miles run alone; that on the following day swellings on his head were discovered by the attending physician, that seven days thereafter the deceased died; that an autopsy by two physicians disclosed a blood clot in the skull in the neighborhood of the swelling; and that in the judgment of the physicians this was produced by external violence, and not by disease.</p> <p>Practice, C. P. — Evidence—Motion to strike out.</p> <p>4. Where evidence is admitted without objection and no motion is made to strike out the same until after the plaintiff's case in chief is closed, a motion then is made too late.</p>

<p>Road law — Municipalities — Eminent domain — Opening street — Damages — Non-abutting owner.</p> <p>1. An owner of land which does not abut on a newly opened street is not entitled to damages under the constitutional provision requiring compensation to be made for property taken, injured or destroyed, before there has been any physical change of grade on the ground or any actual injury to the property for which damages are claimed.</p> <p>2. Where damages are claimed for the opening, widening or change of grade of a street by an owner of land not abutting thereon the injury complained of must be proximate, immediate and substantial; and some right of property, or easement or privilege enjoyed by the owner, or access to his property must be interfered with.</p>

<p>Negligence — Landlord and tenant — Liability of landlord — Baseball park — Fall of grand stand.</p> <p>1. The landlord of a baseball park is not liable for damages for personal injuries resulting from the fall of the grand stand, where it appears that the stand was owned by the tenant in possession and had been erected by him before the landlord took title, that the tenancy was continued after the change of ownership, that before the original term had expired a new lease was made to the same tenant, and that the latter continued in exclusive possession and management, without the new owner ever having been at any time in actual possession, or ever having the right to possession.</p> <p>Appeals — Assignments of error — Evidence.</p> <p>2. Assignments of error to the admission of evidence will not be considered where the answers to questions and papers admitted are not set forth in the assignments.</p>

Appeal, No. 335, Jan. T., 1908, by Anna Katharina Kronmaier, from decree of O. C. Phila. Co., April T., 1908, No. 80, dismissing exceptions to confirmation of inquisition in Estate of Johann Christen Altdorfer, deceased. Petition in partition.

<p>Trusts and trustees — Separate.use trust — Husband and wife.</p> <p>1. A gift of real estate to a niece “to and for her own separate use forever ” creates a separate use trust for the benefit of the niece. The fact that the word “sole” is not used in connection with the word “separate” is immaterial.</p> <p>2. The most apt word to create such a trust is “separate,” which has a fixed and technical meaning, and which will of itself exclude the marital rights; whereas the same fixed and technical meaning is not attributable to “sole.”</p>

<p>Appeal, No. 14, Jan. T., 1909, by plaintiff, from order of C. P. Montgomery Co., March T., 1908, No. 25, entering judgment for part of plaintiff’s claim on rule for judgment for want of a sufficient affidavit of defense in case of George B. Wilson v. Bryn Mawr Trust Company.</p> <p>Rule for judgment for want of a sufficient affidavit of-defense.</p> <p>The facts relating to this appeal were thus stated by Swartz, P. J., who heard the case in the court below.</p> <p>The damages claimed are as follows:</p> <p>Purchase money paid, less $87.50.......... $11,186.35</p> <p>Interest on same from April 18th, 1907.</p> <p>Examination of title and recording deeds.... 50.00</p> <p>Road tax $55.33, county tax $97.26, interest on mortgage................'........;.. 610.56</p> <p>Loss because of increased value of farm..... 23,970.75</p> <p>Loss on sale of Hagy farm................. 12,325.40</p> <p>The interest of the insured which was covered by the policy was that of owner in fee of the propérty. As the grantee received no title or interest of any value, the basis of his loss is the true value of the property insured: Foehrenbach v. Title & Trust Co., 217 Pa. 331. The plaintiff, however, can recover nothing beyond the face of his policy, and his damages are confined to the actual loss sustained. If he paid $34,000 for the property and the farm had no value beyond the amount so paid, his loss is represented by the consideration paid. Only one-third of the consideration was paid and the balance is represented by a mortgage given by Mr. Henry. Plaintiff claims as part of his loss, this one-third of the consideration which he paid in cash. He had the use of the farm, and we do not see how he can claim as part of his loss, the taxes and interest on his investment, unless he furnishes us with an account of the income of the farm. If the income exceeded the sum paid out for taxes, interest and expenditures, he sustained no loss on this branch of his claim. We cannot assume that the use of the farm has no value.</p> <p>The claim for damages for the excess of the market value of the farm over the price paid, is disputed not because the item is not a proper element of damages, but because no such excess in fact it is averred can be shown. The averments of the affidavit of defense are not as specific upon this point as they should be, but an allegation that the sum of $1,050 per acre is a full price for the farm is in effect an averment that such price is its market value. When we say that an owner received a full price for his property, we mean ordinarily that he sold it at its fair market value. When an affidavit of defense discloses facts sufficient to indicate a good defense we are not in the habit of entering judgment without an opportunity to file a supplemental affidavit. This question of market value is eminently one for the jury and not for the court.</p> <p>The defendant denies that it had any knowledge of the alleged agreement between the plaintiff and Joseph J. Baughman for the sale of the Pinkerton farm at the time the policy of insurance was issued. We think the affidavit of defense is sufficient for all the claim of the plaintiff other than the sum of $11,186.36 and the item for conveyancing, $50.00, and on this latter item the plaintiff is entitled to interest from April 18, 1907.</p> <p>Judgment is accordingly entered for the plaintiff for the sum of $11,240.99 with leave to proceed to trial before a jury for the balance of his claim.</p> <p>Error assigned was the order of the court.</p>

<p>Railroads — Crossing streets — Boroughs—Right of way — Laying additional tracks.</p> <p>1. Where a railroad company incorporated in another state was given the power by the Act of March 24,1870, P. L. 554, to condemn or purchase lands not exceeding sixty feet in width, and to construct and establish a railroad with one or more tracks, and the company acquires land of the width of sixty feet and lays a single track thereon and across township roads in an unincorporated town or village, the subsequent incorporation of the town and the change of the roads into borough streets, do not give the borough a standing to enjoin the railroad company from laying additional tracks within its right of way and across the streets. In such a case the power of the company to construct a railroad was not exhausted when it laid the first track.</p> <p>Constitutional law — Title of act — Railroads.</p> <p>2. The title of an act of assembly which shows that the purpose of the act was to authorize a company to build a railroad, gives sufficient notice of a provision in the body of the act giving the company the right of eminent domain.</p>

<p>Railroads — Straightening line — Eminent domain — Water company— Act of March 17,1869, P. L. 12.</p> <p>1. Under the Act of March 17, 1869, P. L. 12, a railroad company may condemn land to straighten its line, although there may be a departure from the old line at one point of 2,500 feet, if it appear that the improvement will shorten the line by half a mile and reduce a curvature by 323°. In such a case it is of no consequence that the railroad company had in mind other advantages, or that these were the controlling considerations, without which the improvement would not have been entered upon.</p> <p>2. The inquiry in all such cases must be not into the conduct of the company, but into the rights conferred upon the company by law. If authorized by its charter to do the things complained of, the authority of the court is at an end, no matter what latent design may be developed.</p> <p>3. Where the minute of the executive committee of the railroad company shows that the effect of a condemnation of particular land, and the relaying of tracks thereon, will result in a substantial reduction of curvature, and a substantial shortening of the line, it is immaterial that the minute may have described the change as a “relocation.” If the minute is subsequently ratified and adopted by the board of directors, the proceeding is regular.</p> <p>4. The law commits to the board of directors of a railroad company the determination of the question of the necessity of condemning additional land under the Act of March 17,1869, P. L. 12, for straightening and widening the road. A determination by the board that the proposed change is necessary for the purposes indicated in the act is conclusive, and if such determination is reached in good faith, the court has no supervisory power over it.</p> <p>Railroads — Eminent domain — Condemning land of another public service company.</p> <p>5. Property devoted to public use including a franchise, is subject to eminent domain, and may be taken for other public uses, but it cannot be taken without legislative authority expressed in clear terms, or by necessary implication. There must, however, exist a necessity for the taking, and such necessity must be one that arises from the nature of things, over which the corporation has no control; it must not be a necessity created by the corporation itself for its own convenience, or for the sake of economy.</p> <p>6. Where a railroad company seeks to condemn land owned by a water company for the purpose of widening and straightening the line of the railroad, the mere possibility that the land may at some future time become necessary to the exercise of the water company’s franchise, will not operate to exempt the land from condemnation; nor will the fact that the property is at present employed, if the use is not necessary to the exercise of the company’s franchise.</p> <p>7. In such a ease an order permitting the condemnation will be sustained by the appellate court, where it appears that the order is based upon facts properly found, to the effect that the lands sought to be condemned are not now employed by the water company in the exercise of its franchise; that there are other available sites for reservoirs adequate for the future of the company; and that the improvement will not result in increasing water pollution when once established.</p>

<p>Appeal, No. 18, Jan. T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 1,134, for defendant non obstante veredicto in case of Joseph Golden, minor child of Margaret Golden, by his mother and next friend, Margaret Golden, v. Mt. Jessup Coal Company, Limited.</p> <p>Trespass to recover damages for personal injuries. Before Edwards, P. J.</p> <p>The facts.are stated in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $7,500. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 156, Jan. T., 1908, by Jennie M. Stroup, from decree of O. C. Berks Co., Nov. T., 1907, No. 11, dismissing exceptions to adjudication in Estate of James Cutler, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned amongst others was (7) the decree surcharging the accountant.</p>

<p>Negligence — Automobiles—Alighting from street car — Duty to look.</p> <p>1. Where a passenger alights from a street car, it is his duty to look where he is going, and not to rush blindly into danger. Such a person is not relieved from the charge of contributory negligence if without looking he takes two steps from the car and then suddenly seeing an automobile, stops and is run down and injured.</p> <p>2. It is the duty of a person operating an automobile who sees a street car standing at a regular stopping place, to exercise very great care in passing it, to avoid injury to persons going to or from it.</p>

<p>Judgments — Setting aside judgments — Expiration of term — Equitable relief — -Ignorance of the law.</p> <p>1. Judgments by confession or upon default remain indefinitely within the control of the court, and upon proper cause shown may be opened up or vacated at any time; but not so with respect to judgments obtained adversely. The power committed to the discretion of the court with respect to the latter ends with the expiration of the term at which the judgment was entered, unless there are equitable grounds for interference. Ignorance of the law, however, is not a ground for equitable relief.</p> <p>2. Where an appeal is taken to the common pleas from a tax assessment by the county commissioners acting as a board of revision, and before the appeal is heard the parties agree to an adjustment, and the court enters a judgment pursuant to the agreement, such judgment is adverse, and cannot be set aside after the expiration of the term at which it was entered, in the absence of any ground for equitable relief. The fact that a petition had been presented on the last day of the term in which the order had been 'made asking for its vacation, and that a rule had issued thereon, does not in any way change the situation.</p>

<p>Appeal, No. 6, Jan. T., 1909, by plaintiffs, from decree of C. P. Clinton Co., Jan. T., 1907, No. 1, dismissing bill in equity in case of Jonathan B. Bierly et al. v. Philadelphia & Erie Railroad Company.</p> <p>Bill in equity for an injunction. Before Hall, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was in dismissing the bill.</p>

<p>Road law — Widening streets — Damages—Benefits—Act of May 20, 1891, P. L. 101.</p> <p>In a proceeding to assess damages for land taken by á city to widen a street, the benefits and special advantages which may accrue to the part or tract of land not taken or injured by the improvement, must be taken into consideration in determining the difference in value before and after the appropriation. Where land has been so appropriated and used, there is no reason why the damages to the property may not be reduced or entirely overcome by the benefits which may have accrued to it.</p>

<p>Will — Signature—“At the end thereof.”</p> <p>1. The statute requires that a will shall be in writing, and signed by the testator “ at the end thereof.” The end meant by this provision is the logical end of the language used, which shows that the testamentary purpose has been fully expressed. The position oí the signature with regard to the bottom or end of the page is only evidence on the question whether the testator has completed the expression of his intention. Prima facie that is the natural place for the signature to be placed to show the full expression of the testator’s wishes and therefore is presumptively the right place for it, but it is only evidence and must give way to evidence of a different intent.</p> <p>2. Where the full substance of the testator’s intent is expressed, and his signature is at what he intends and regards as the end of his will, the continuity of the sense and not the mere position on the page must determine the statutory “end thereof,” as the place for the signature.</p> <p>3. Parol testimony as to marginal writing on a will is admissible, but it must be received with caution.</p>

<p>Appeal, No. 35, Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 4,824, refusing to take off nonsuit in case of George S. Hopkins v. West Jersey & Seashore Railroad Company and Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 102, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March T., 1908, No. 4,497, for defendant on case stated in suit of Commonwealth v. Washington West Randall.</p> <p>Case stated to determine liability for collateral inheritance tax.</p> <p>From the case stated it appeared that the defendant’s step-. mother had devised to him real estate in the city of Philadelphia appraised at the value of $35,000. The commonwealth claimed $1,750, as collateral tax thereon. The case turned upon the constitutionality of the Act of April 22,1905, P. L. 258, exempting stepchildren from the collateral tax on estates left to them by stepparents.</p> <p>The court entered judgment for defendant.</p> <p>Error assigned, was in entering judgment for defendant.</p>

<p>Appeal, No. 60, Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., Dec. T., 1906, No. 1,094, refusing to take off nonsuit in case of Lizzie Rosenblatt to use of Benjamin Rosenblatt v. Harry Weinman.</p> <p>Assumpsit for money had and received. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeals, Nos. 91 to 100, inclusive, from decree of O. C. Phila. Co., April T., 1906, No. 11, dismissing exceptions to adjudication, and appeal, No. 101, by the Fidelity Trust Company, Executor of Edward M. Paxson, deceased, C. P. No. 2, Phila. Co., June T., 1907, No. 2,471 in the matters in the Estate of Edward M. Paxson, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned in the appeal from the orphans’ court was in dismissing exceptions to the adjudication, and in the appeal from the common pleas various rulings on evidence.</p>

<p>Mines and mining — Coal lease — Royalties—Sizes—Use of gangways.-</p> <p>1. Where a coal lease without definite terms and for the exhaustion of the coal, contemplates various sizes of coal, but provides for payment of royalties only on two sizes, pea coal being the smaller, no royalties can be collected on the smaller sizes known as buckwheat, rice and barley.</p> <p>2. A lessee of coal cannot be charged for rental for the use of gangways on the demised premises in transporting coal from other properties.</p>

<p>Negligence — Infant—Land used as playground.</p> <p>1. Where the owner of property invites or permits its use by the public as a common or for a playground or a picnic ground, it is the duty of the owner to use reasonable precaution to protect the public from the operation of dangerous machinery located thereon. Under such circumstances, a different duty is imposed upon the owner, from that required of him towards those who are merely trespassers upon his property.</p> <p>2. Where an owner of a lot of ground permits it to be used as a public common or children’s playground and operates on such land moving wheels and moving ropes for raising coal without any guard or barrier around them, and a little boy four and a half years old is found fast in one of the wheels, severely injured, the question of the owner’s negligence is for the jury.</p>

<p>Appeal, No. 238, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1899, No. 829, on verdict for plaintiffs in case of Patrick Lenahan and Bridget Lenahan, his wife, v. The Crescent Coal Mining Company and Isaac B. Felts.</p> <p>Trespass to recover damages for death of a boy fifteen years old. Before Lynch, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiffs for $1,924.50. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Practice, C. P. — Pleading—Allegata and probata — Statement of claim —Evidence.</p> <p>1. The allegata from which the proofs must not materially vary, and with which they must be consistent, are those averments of fact contained in the plaintiff's statement of his cause of action which, if substantiated, would entitle him to recover. If the statement contain other allegations of fact not essential to the cause of action sued upon, the plaintiff is not bound to prove them, and failure to do so will not constitute a fatal variance which will preclude recovery if the essential averments have been duly established.</p> <p>Bonds — Negotiable instruments — Bailment—Pledge.</p> <p>2. Bonds of a corporation made payable to bearer are negotiable instruments, and a person who holds them as a pledge for an ovez-due debt has a right to sue upon them. He is not required as in the case of the pledge of ordinary chattels, to sell them and apply the proceeds to the payment of the debt, but he has the right to sue upon them and apply as much of the net proceeds collected as may be needed to pay the debt they were to secure. In such a suit the court will not consider whether the plaintiff is entitled to the whole amount of the bonds. If he is not, he will have to account as trustee for the excess to the proper owner in another proceeding</p>

<p>Equity — Equity practice — Pleading—Answer—Demurrer—Decree — Jurisdiction — Title to real estate.</p> <p>1. A decree on a bill in equity must conform to the prayers of the bill, and cannot be broader than the equitable relief prayed for.</p> <p>2. Where the averments of a bill in equity manifestly raise a question as to the title of real estate, the court of equity in which the bill is filed has no jurisdiction. The question of jurisdiction should be raised by demurrer, but may also be raised in the answer in certain cases in which it clearly appears from the whole record that equity does not have jurisdiction to determine the question in dispute; and if the question is so raised, the court cannot disregard it.</p>

<p>School law — Teachers—Election of principal — Act of June 25, 1885, P. L. 175.</p> <p>-1, Under the Act of June 25, 1885, P. L. 175, the board of directors of public schools have the power to elect a principal or teaching superintendent for a term of three ears.</p> <p>2. In an action by a principal of a public school against a school district to recover his salary after an alleged improper discharge, a written contract of employment of the plaintiff executed in the name of the directors by the president and secretary of'the board, is properly admissible in evidence, where the minutes of the board show that the plaintiff was elected principal by the affirmative votes of a majority of the whole number of electors, the names of the members both for and against him being duly entered, and that his term and salary were fixed by a unanimous vo‘te.</p> <p>3. Where a teacher is dismissed for ineompetency and neglect of duty, and the minutes of the board of directors show that the dismissal- for these causes was by a unanimous vote, the minutes are conclusive as to the propriety of the dismissal in the absence of any charge or evidence of bad faith, or abuse of power upon the part of the board. In such a case it is error for the court to admit evidence to contradict the minutes.</p>

Appeal, No. 43, Jan. T., 1909, by Victoria Schmitt, executrix, from decree of C. P. Luzerne Co., Feb. T., 1908, No. 58, appointing trustee in the Matter of the Appointment.of a Trustee of the Mortgage of the Keystone Coal Company. Petition for the appointment of a trustee. Before Lynch, P. J., and Fuller, J. The opinion of the Supreme Court states the case. Error assigned was the decree of the court.

<p>Appeals — Assignments of error — Exceptions—Equity practice.</p> <p>1. Assignments of error to findings of fact and conclusions of law by the court below sitting as a court of equity will not be considered where no 'exceptions have been filed to such findings and conclusions.</p> <p>Equity — Equity jurisdiction — Title to land — Ejectment bill — Remedy at law.</p> <p>2. A bill in equity praying for the cancellation of a deed on the ground of fraud in certain partition proceedings in which the defendant secured the deed, will be dismissed as an ejectment bill involving merely a question of title to land.</p> <p>3. It may be that such a title may not be good because of irregularities in the proceedings or because the court did not have jurisdiction, or because the parties to the partition proceeding did not have title, but all of these questions must be determined in an action at law when the question of title is properly raised between the parties asserting adverse title to the land in dispute.</p>

<p>Negligence — Court and jury — Master and servant-^Dangerous machinery — Failure to instruct — Question for jury.</p> <p>1. It is only in clear cases where the facts and inferences to be drawn from the testimony are free from doubt and but one conclusion is dedueible that the court may not permit a jury to reach a different one.</p> <p>2. In an action by a boy sixteen years old against his employer, a coal mining company, to recover damages for personal injuries sustained while greasing machinery, a verdict and judgment for the plaintiff will be sustained, where the evidence warrants a finding that the plaintiff was instructed by the boss who had authority to act, to grease a particular wheel; that the place and the job were dangerous; that no warning nor instruction was given; that plaintiff was inexperienced in the particular work, not having knowledge of its danger; and that the danger itself was not so obvious as to affect him with knowledge, and thus dispense with warning or instructions.</p>

<p>Appeal, No. 83, Jan. T., 1909, by defendant, from judgment of C. P. Columbia Co., Doc. T., 1908, No. 34, on verdict for plaintiff in case of The First National Bank of Bloomsburg v. Emanuel Gerli, Administrator C. T. A. of the Estate of Guiseppe Ratti, deceased.</p> <p>Assumpsit on a promissory note. Before Evans, P. J.</p> <p>The note was as follows:</p> <p>“Bloomsburg, Pa., Aug. 7, 1906.</p> <p>“No. 7,531.</p> <p>“Four months after date I promise to pay to the order of Joseph Ratti, $5,000, five thousand dollars, at the First National Bank of Bloomsburg, Pa. Due December 7, 1906. Without defalcation, for value received.</p> <p>Credit the drawer.</p> <p>“ (Signed) E. F. Carpenter.</p> <p>“ (Endorsed)</p> <p>“Joseph Ratti.”</p> <p>At the trial the plaintiff made the following offer:</p> <p>Mr. Ikeler: I will make a general offer so as to get this matter upon the record. Counsel for plaintiff propose to prove by the witness upon the stand that he is the maker of the note marked exhibit “A” and that Joseph Ratti indorsed the same in his own proper handwriting before maturity some time in the spring of 1906, at his residence in the town of Bloomsburg at the request of Mr. Carpenter, the witness; that Mr. Ratti was an Italian by birth; a man of large means, whose family and relatives resided in the kingdom of Italy; that he was accustomed to making frequent trips abroad, sometimes staying for a period of six months; that the note in suit was indorsed by Joseph Ratti on the day of his departure to New York city for the purpose of sailing to Italy to be gone a considerable time; that the witness did not at that time know the exact date when he might wish to use the note, which Mr. Ratti had indorsed, and for that reason at the time of this indorsement, the date of the note was left in blank with the full understanding of both Mr. Ratti and the witness that it should be dated whenever used and discounted for the benefit of Mr. Carpenter; that at the same time of the indorsement of the note Mr. Ratti agreed with and instructed Mr. Carpenter as cashier of the First National Bank that the note in question should not be protested, and that he thereupon instructed Mr. Carpenter to attach to the note, whenever he might present it for discount, a typewritten slip containing a waiver of protest and duly signed by Mr. Ratti. We offer further to show that the witness and Mr. Ratti had had a large number of business transactions together and that at the times when Mr. Ratti was in Italy it was his custom to leave his various notes in the different banking institutions upon which he was maker or indorser in the hands of Mr. Carpenter, and to leave with him at the same time waivers of protest so that any and all notes upon which his name appeared, either as maker or indorser, might not be protested at maturity; that on August 7, 1906, the witness had the- notes discounted at the First National Bank of Bloomsburg in- the town of Bloomsburg, the plaintiff in this case, filling in the date at that time according to the understanding and agreement of Mr. Ratti, and at the same time that the note was discounted Mr. Carpenter as cashier attached thereto with brass clips the waiver of protest which had been signed by Mr. Ratti; that Mr. Ratti died in Italy October 26,1906, before maturity of the note; and also to show that the note had not been paid by the witness, the maker. All of which evidence is offered for the purpose of explaining the postdating of the note in suit, and also to identify the slip of paper attached to the note as having been intended by Joseph Ratti to apply and refer to this identical paper; to show generally before the maturity of the note Joseph Ratti waived notice of nonpayment and protest thereon. All generally for the purpose of establishing the liability of the defendant in this case upon the note in suit.</p> <p>Mr. Ikeler: It is conceded that the proceeds of this note were discounted by the plaintiff bank, and were placed to the credit of Mr. Carpenter on the books of the bank.</p> <p>defendant’s objection.</p> <p>Mr. Harman: Counsel for the defendant object to the competency of the witness to testify to the acts or declarations of the decedent, Joseph Ratti, wherein witness acted for and represented the First National Bank, plaintiff, in this case. The incompetency being based upon the inability in the law of the witness to testify for the surviving or remaining party to the thing or contract in action, the other party to the same being dead. Further object to the competency of the witness to testify to the acts, matters and things as related in the offer, for the reason that the witness is disqualified and incompetent under clause “E” of sec. 5 of the witness act of 1887, on the ground of having an adverse interest to the estate of the deceased indorser of the note.</p> <p>Mr. Ikeler: I desire to make an addition to the offer, to further show by the witness on the stand that although Mr. Ratti did not sign the note under the words “credit the drawer,” the note was drawn by Mr. Carpenter and that he requested Mr. Ratti to indorse the same, and Mr. Ratti did indorse it with the full understanding and knowledge and agreement that the proceeds of this note, when discounted, should go to the credit of E. F. Carpenter.</p> <p>Mr. Harman: Counsel for the defendant further objects to the competency of the witness, E. F. Carpenter, to testify to any matter or thing in relation to the character of the paper in question, upon the well-known rule of law that parol testimony cannot ordinarily be attempted to vary or contradict the terms of the written instrument, especially as in this case. The payee and the indorser of the note in question is dead, and the witness cannot possibly be answered by the only other party to the paper.</p> <p>The Court: We will overrule this objection, note an exception and seal a bill for the defendant. [1]</p> <p>Verdict and judgment for plaintiff for $5,381.66. Defendant appealed.</p> <p>Error assigned was (1) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 109, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1905, No. 69, on verdict for plaintiff in case of Sterling R. Catlin v. Northern Coal & Iron Company.</p> <p>Appeal from report of jury of view. Before Lynch, P. J.</p> <p>The opinion of the Supreme Court states the facts of the case.</p> <p>Errors assigned were (1-13) various rulings on evidence and various instructions.</p>

Appeal, No. 123, Jan. T., 1909, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1907, No. 614, on appeal from tax settlement in case of Lehigh & Wilkes-Barre Coal Company v. Luzerne County. Appeal from tax settlement. Before Fuller, J. The case turned on whether the court had applied á proper rule in ascertaining the valuation of the coal lands in question.

<p>Appeal, No. 128, Jan. T., 1909, by Luzerne County, from order of C. P. Luzerne Co., Oct. T., 1907, No. 614, on appeal from tax assessment in reassessments of land of the Lehigh & Wilkes-Barre Coal Company.</p> <p>Appeal from tax assessment.</p> <p>From the record it appeared that on June 29, 1909, Fuller, J., began the hearing of testimony, and on January 28, 1909, filed various findings of fact and conclusions of law, and a form of decree fixing the valuation of the lands in question at $2,400 per superficial acre. Subsequently the county commissioners with leave of the trial judge, filed exceptions to the opinion and decree of the judge, and requested that the same be heard by the judges sitting in banc. On February 23,1909, Lynch, P. J., filed an opinion concurred in by Halsey, J., refusing to consider the exceptions substantially on the ground that there had been no valid trial or proceeding by the board of revision, and that therefore there could be no valid appeal, and also that the trial had been held before one judge only, and was not in accordance with the proceeding authorized by the statute. Subsequently Ferris, J., and Fuller, J., filed opinions refusing to concur in the opinion filed by the president judge. On March 18, 1909, Fuller, J., filed the following order as the order of the court:</p> <p>After further reflection and consideration of able briefs, pro and con, we stand by our former conclusion that the valuation of $2,400 per acre was a just and equitable result, re- ' gardless of any possible flaws in the reasoning by which that result was obtained; and we adhere thereto as our finding of fact in the case under all the evidence, hereby overruling all exceptions.</p> <p>If there be any injustice, it falls not upon the county but upon the company, which, on legal ground, has been denied the benefit of any reduction below actual value, although most properties in the county enjoy some reduction, and if the general average ratio or reduction through the county could be legally applied to this particular property, the valuation of $2,400 would represent a mined value of $4,000, equivalent to a virgin value of $5,000. Bill sealed.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were in overruling various exceptions to the adjudication and the decree of the court.</p>

<p>Corporations — Stock—Preferred stock — Dividends.</p> <p>1. Where, in a contract for the creation of preferred stock, there is no stipulation to the contrary, the weight of authority clearly favors the right of preferred stockholders to share with the common stockholders in all profits distributed, after the latter have received an amount equal to the stipulated dividend on the preferred stock.</p> <p>2. Where a resolution authorizing the issue of preferred stock of a corporation provides that such stock shall be entitled “to receive a cumulative yearly dividend of five per cent in each year before any dividends shall be set apart or paid on the common stock,” such stock after it has received its preference in dividends and after the common stock has received an equal amount as dividend, is entitled to participate with the common stock in the distribution of the remaining profits, if any.</p> <p>3. In such a case the fact that for a series of years the preferred stockholders were paid without objection on their part only five per cent per annum, and the entire balance of profits was paid to the common stockholders, is not to be considered in determining the rights of the parties, if it appears that while the dividend paid to the common stock was much more than five per cent on the amount paid in, it was much less than five per cent on the par value of the stock.</p> <p>4. Cotemporary construction of a contract by acts of the parties is entitled to very great weight, but it ought to appear with reasonable certainty that they were acts of both parties, done with knowledge, and in view of a purpose at least consistent with that to which they are now sought to be applied.</p> <p>5. If a contract is ambiguous in meaning, the practical construction put upon it by the parties thereto is of great weight, even though the contract is in writing, and ordinarily is controlling. The practical interpretation of the parties is to be regarded, however, only when the contract is ambiguous. If clear and free from ambiguity, the intention shown upon its face, if written, must be followed, though contrary to the practical interpretation of the parties, and even if such practical construction has been acquiesced in for a long period of time.</p>

<p>Tax sale — Sale by county commissioners — Assessments—Land law.</p> <p>1. A sale of unseated lands by the county commissioners for nonpayment of taxes is valid, although the township assessor has made no return of assessment of such lands. The county commissioners as a board of revision are themselves competent to assess the tax.</p> <p>2. Where a person in good faith purchases a tract of land from county commissioners which the commissioners had bought in at a tax sale, and there is nothing of record to show that the commissioners had ever done anything to impair or abandon their title, the former owners of the land cannot allege as against such purchaser that the commissioners had continued to collect taxes from the land after the sale, thereby abandoning their title.</p> <p>3. Where an assessor returns an assessment on a tract of unseated land in his own township, the county commissioners have a right to levy a tax on such land and collect it, although the return may have improperly located the land. The commissioners axe not called upon to satisfy themselves as to the accuracy of the return.</p> <p>4. Where taxes are paid on a portion of an unseated tract of land, and the remainder is sold for nonpayment of taxes, and the county commissioners buy it in at the sale, and thereafter sell it to another person, the purchaser of the tax title, if there has been no previous apportionment of the land, has the right to locate his purchase upon such part of the whole tract as he may choose.</p>

Appeal, No. 110, Jan. T., 1909, by plaintiffs, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,606, discharging rule for judgment for want of a sufficient affidavit of defense in case of William Wood and John P. Wood copartners, trading as William Wood & Company, v. Irvin Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr., and the Land Title & Trust Company. Assumpsit for money had and received.

<p>Appeal, No. 111, Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1908, No. 2,605, discharging rule, for judgment for want of a sufficient affidavit of defense in case of Third National Bank of Philadelphia v. Irvin C. Kerkeslager et al., Trustees of the Bankrupt Estate of Alexander Crow, Jr., and The Land Title & Trust Company.</p>

<p>Husband and wife — Deed by wife to husband — Nonjoinder of husband.</p> <p>1. A married woman cannot make a valid conveyance of her separate real estate by deed to her husband as grantee, which she alone signs, seals and acknowledges but which he accepts and places upon record.</p> <p>2. Neither the Act of April 11,1848, P. L. 536, nor the Act of June 8, 1893, P. L. 344, changed the provisions of the Act of February 24,1770, 1 Sm. L. 307, requiring a husband to join in the conveyance of a wife’s real estate.</p>

<p>Appeal, No. 170, Jan. T., 1908, by defendant, from judgment of C. P. Erie Co., Sept. T., 1906, No. 183, on verdict for plaintiff in case of Margaret Peters v. Bessemer & Lake Erie Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Walling, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The defendant submitted the following points:</p> <p>6. There is no evidence to justify the submission to the jury of the question of the negligence of the defendant as to the construction of the tracks in the yard of the defendant company. Answer: Refused. [1]</p> <p>9. Even if the evidence showed negligence on the part of the defendant company in regard to one or more of the allegations made in the plaintiff’s statement, the evidence shows that neither of said alleged acts of negligence on the part of the defendant company was the proximate cause of the accident, and that the proximate cause of the accident was the negligence of some one or more of the fellow servants of the plaintiff’s son, for which the defendant company was not liable. Answer: Refused. We refer the question of proximate cause to the jury. [2]</p> <p>11. The burden was upon the plaintiff to show what the net earnings of her son would probably be during minority. She has not shown what the cost or probable cost of his board, clothing and maintenance during minority would be, and there is no evidence upon which the jury can base a calculation of his net earnings. They cannot be permitted to guess at the probable cost of his board, clothing and maintenance, and the verdict, therefore, should be for the defendant. Answer: Refused. The jury cannot guess at anything. You will have to find that from the evidence. The evidence shows that the young man was earning about $70.00 a month, but I say to you, as I have already explained, that his mother could not recover his full earnings but only so much as would have gone to her benefit. You will have to find that from the evidence and the circumstances in the case, considering the young man’s age and the circumstances as developed by the testimony. [3]</p> <p>12. Under all the evidence, the verdict of the jury should be for the defendant. Answer: Refused [4]</p> <p>Verdict and judgment for plaintiff for $2,300. Defendant appealed.</p> <p>Errors assigned among others were (1-4) above instructions, quoting them.</p>

Appeal, No. 228, Jan. T., 1908, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1907, No. 39, for defendant non obstante veredicto in case of Peter Cierlinski, Guardian of John Cierlinski, v. Paul Rys, W. H. Landers, Michael Olszewski and Frank Pietraszewicz. Ejectment for lot of land in the city of Erie. Before Walling, P. J. The opinion of the Supreme Court states the case.

<p>Will — Probate—Devisavit vel non — Testamentary capacity — Refusal of issue.</p> <p>The orphans’ court commits no error in refusing to award an issue devisavit vel non on the ground of testamentary incapacity, where the proponent calls the witnesses to the will and the two physicians who attended the testator at the time, who all testify that the deceased was fully capable of transacting business, while the contestant relies on witnesses who had not seen him within six months of his death, some of whom testify that at times he had been nervous, forgetful and incapable of attending, to business, while others who were physicians, testify that they had seen the testator at times from six months to four years before his death, that he was suffering from paresis and that the disease would incapacitate him mentally some weeks before it caused his death.</p>

<p>Appeal, No. 163, Jan. T., 1908, by defendant, from order of C. P. Potter Co., Dec. T., 1901, No. 14, dismissing exceptions to report of referee in case of Commonwealth ex rel. v. The Lumber City Water Company.</p> <p>Quo warranto to determine corporate existence.</p> <p>The opinion of the Supreme Court states the case.</p> <p>David Cameron, Esq., referee, filed the following conclusions of law:</p> <p>1. The Act of June 14, 1836, P. L. 621, sec. 2, clause 5, gives the court of common pleas of Potter county jurisdiction of this case.</p> <p>2. The relinquishment of possession and abandonment of all its water lines, property, franchises, etc., and the discontinuance of furnishing water, as provided for in its charter, from the date of the deed, June 9, 1898, to June 25, 1905, when its vendee was ousted and its charter forfeited, is a nonuser and abandonment for which judgment of ouster should be entered and the charter of the defendant company forfeited.</p> <p>3. The act of 1876 is not self-acting, but when quo warranto proceedings are instituted against a water company, incorporated under the act of 1874, and the fact is found that the said water company has disposed of and conveyed all its property, real, personal and mixed, to a like corporation, judgment of ouster must be rendered in such case to meet and carry out the mandates of the legislation.</p> <p>4. The act of 1876 applies to the defendant company, and having found the fact to be that it had sold, assigned and conveyed to the Potter County Water Company, a like corporation, organized for the same purpose as the defendant company, its franchises and all its property, real, personal and mixed, before these proceedings were instituted, and having further found that it is now seeking to do business under its charter, judgment of ouster should be rendered against it.</p> <p>And now, March 15, 1907, it is adjudged and decreed that the defendant, the Lumber City Water Company, has no right to have and use the rights, powers, liberties and privileges of a water company under the laws of the commonwealth of Pennsylvania, or any of the rights, liberties and franchises conferred by act of assembly, or by the charter issued to said company on October 23, 1890; and that the said defendant, the Lumber City Water Company, be ousted and altogether excluded of and from the said rights, powers, liberties or franchises conferred by said charter and act of assembly, and it is ordered that a perpetual injunction issue restraining the said defendant, its officers, agents, servants and employees from exercising any of the rights, powers and privileges of a water company, or any of the rights, liberties or franchises conferred by act of assembly or the charter above named. And it is further adjudged that the defendant pay all costs.</p> <p>Exceptions to the report of the referee were dismissed by the court.</p> <p>Errors assigned were in dismissing the exceptions and in entering the decree recommended by the referee.</p>

<p>Appeal, No. 283, Jan. T., 1908, by plaintiff, from order of C. P. Warren Co., March T., 1908, No. 21, discharging rule for judgment for want of a sufficient affidavit of defense in case of Christopher L. Williams, Receiver of Fredonia National Bank of Fredonia, N. Y., v. Edward O’Donnell et al.</p> <p>Assumpsit for breach of covenant of general warranty in a deed of real estate. Before Lindsey, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Corporations — Promoters—Contract of employment — Ratification.</p> <p>Where the officers and stockholders of a corporation and the members of a partnership agree to form a new corporation to take over the business of the two concerns, and the promoters agree that one of the paid officers of the old corporation shall become a paid officer of the new corporation, and after the new corporation is organized such officer assumes his new office and performs its duties, the contract of employment is binding upon the new corporation unless it is renounced and disapproved by its directors.</p>

Appeal, No. 74, Jan. T., 1909, by plaintiff, from order of C. P. Potter Co., Dec. T., 1906, No. 17, refusing to take off nonsuit in case of John Finkbeiner and Walter Finkbeiner, minor child of John Finkbeiner, v. A. Solomon. Trespass to recover damages for personal injuries to a boy nine years old. Before Ormerod, P. J. The circumstances of the accident are set forth in the opinion of the Supreme Court.

<p>Mines and mining — Oil and gas lease — Lease—Title—Possession— Ejectment.</p> <p>1. Where an instrument in writing does “grant, demise, lease and let unto the said party of the second part . . , , all that certain tract of land .... containing 100 acres, ... , for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products,” the paper creates a corporeal interest in the lessee in the demised premises and is not merely a license to enter and operate for oil and gas; and the lessee although he never entered into possession of the premises may maintain an action to recover possession from a third party not claiming under the lessor.</p> <p>2. There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case, the licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, and in such proceeds not as realty, but as personal property, and his possession is the possession of the owner. A contract simply giving a right to take ore from a mine, no interest or estate being granted, confers a mere license, and the licensee acquires no right to the ore until he separates it from the freehold. But an instrument that demises and leases certain lands for mining purposes only, for a designated term of years, at a fixed rent, and giving the right to erect all necessary buildings] etc., is a lease, and not merely a mining license.</p>

<p>Appeal, No. 34, Jan. T., 1909, by the Jaeger Automatic Machine Company, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for plaintiff in case of George Stehle, a minor, by his father and next friend, George Stehle, and the said George Stehle, father of the said George Stehle, minor, in his own right, v. Jaeger Automatic Machine Company.</p> <p>Appeal, No. 69, Jan. T., 1909, by George Stehle, father of George Stehle, minor, in his own right, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for defendant in case of George Stehle, father of George Stehle, minor, in his own right, v. Jaeger Automatic Machine Company.'</p> <p>Assumpsit to recover damages for personal injuries to a boy under fourteen years of age. Before Carr, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for George Stehle, Jr., for S3,500, and for the defendant as against George Stehle, Sr.</p> <p>Error assigned in No. 34 was refusal of binding instructions for defendant.</p> <p>'Error assigned in No. 69 was in admitting the evidence as to the statement of the factory inspector as set forth in the opinion of the Supreme Court, and in refusing judgment for George Stehle, Sr.</p>

<p>Appeal, No. 365, Jan. T., 1908, by the Fidelity Insurance, Trust & Safe Deposit Company, Trustee, from decree of O. C. Phila. Co., Oct. T., 1888, No. 401, awarding partition in Estate of Charles Carter, deceased.</p> <p>Petition for partition. Before Penrose, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree awarding partition.</p>

<p>Principal and agent — Real estate broker — Commissions—Contract— Findings of fact.</p> <p>1. If an owner of real estate chooses to make a contract with a broker in which it is stipulated that the broker shall have the exclusive right to sell the property within a specified time and that he shall be entitled to receive a certain commission if a sale be made within the time designated, no matter who makes it, he is bound by its terms and cannot be relieved from a bad bargain because his agreement may have been foolish or improvident; but a mere appointment of a broker as sole agent to sell real estate at a stipulated price upon a stated commission does not entitle the broker to a commission, if the owner himself sells the real estate during the term of the broker’s employment, and the broker did not produce a purchaser during the term of the contract ready, able and willing to purchase the property.</p> <p>2. In an action by a broker to recover commissions on an alleged sale of real estate, where the case is tried by the court without a jury, a finding of fact by the court based on sufficient evidence that the broker did not produce a purchaser willing to comply with the owner’s terms, will not be reversed by the appellate court in the absence of manifest error.</p> <p>3. Where an owner of real estate agrees with a broker to pay him commissions if he sells the property for $30,000 in cash, the broker does not comply with the terms of his employment by producing a purchaser who is willing to pay $15,000 in cash and give a mortgage to secure the balance, especially when the negotiations to modify the terms of the contract did not ripen into an executed agreement between the parties.</p>

<p>Constitutional law — Removal of public officers — -Justice of the peace— Act of May 25, 1907, P. L. 257 — Constitution of Pennsylvania, art. VI, sec. 4.</p> <p>1. A justice of the peace as a constitutional judicial officer elected by the people, can be removed from his office only by the governor for reasonable cause after due notice and full hearing on the address of two-thirds of the senate.</p> <p>2. A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the legislature may deem better or more convenient. What is forbidden, either expressly or by necessary implication, in the constitution cannot become a law.</p> <p>3. The Act of May 25, 1907, P. L. 257, authorizing the courts of common pleas to declare vacant the office of a justice of the peace who fails for a period of six calendar months to reside and maintain an office in the district for which he is elected, is unconstitutional as violating sec. 4, art. VI, of the constitution relating to removal of officers elected by the people.</p>

<p>Appeal, No. 291, Jan. T., 1908, by the Delaware County Trust, Safe Deposit & Title Insuranee Company, guardian of Mary W. Vernon et al., minors, from decree of O. C. Del. Co., dismissing exceptions to report of auditor in Estate of William G. Vernon, deceased.</p> <p>Exceptions to report of George B. Lindsay, Esq., auditor. Before Broomal, 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>Appeal, No. 42, Jan. T., 1909, by Isaac McConnell Irwin, from decree of O. C. Fayette Co., Dec. T., 1908, No. 23, refusing to allow exceptions to be filed nunc pro tunc in Estate of Elizabeth Irwin, deceased.</p> <p>Petition for leave to file exceptions nunc pro tunc. Before Work, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Appeal, No. 133, Jan. T., 1908, by plaintiff, from judgment of C.P. No. 1, Phila. Co. Sept. T., 1905, No. 4262, for defendant non obstante veredicto in case of Arthur Hardoncourt, Jr., v. The North Penn Iron Company.</p> <p>Trespass for libel. Before Kinsey, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $15,000. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 160, Jan. T., 1909, by defendant from judgment of O. & T. Carbon Co., Oct. T., 1903, No. 1, on verdict .of guilty of murder of the first degree in case of Commonwealth v. Martin Leskoski. Indictment for murder.

<p>Negligence — Electric light companies — Master and servant — Fellow servant.</p> <p>Where a lineman employed by an electric light company after having located a break in a circuit, turns off the current, and directs the electrician and engineer not to turn it on again until he is heard from, and the latter disregard his request and turn on the current, and he is injured, the lineman cannot recover from his company for his injuries without showing that eithef the electrician or the engineer had charge of the line or switch board, or some particular part of the company’s business, or what, if any, duty was delegated to either. In the absence of such proof the court is bound to hold that the electrician and engineer were fellow servants of the lineman.</p>

<p>Appeal, No. 40, Jan. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Mechanic’s Lien Docket, No. 7, p. 102, making absolute rule to strike off mechanic’s hen in case of Henry Burger, Agent, v. S. R. Moss Cigar Company, Owner or Reputed Owner, and H. G. and L. J. Dill, Contractor.</p> <p>Rule to strike off mechanic’s hen. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to strike off the hen.</p>

<p>Negligence — Railroads—Grade crossing — “Stop, look and listen”— Evidence as to signals.</p> <p>1. In a grade crossing accident case where the plaintiff’s testimony-shows that the train was running at a very high rate of speed and three witnesses for the plaintiff testify positively that the bell was not rung and the whistle did not blow, not that they did not hear the sound of either, the question of the railroad company’s negligence is for the jury, although its witnesses testify that the whistle blew and the bell was rung.</p> <p>2. Where the plaintiff in such a case testifies that he stopped, looked and listened at a point about seventy-five or 100 feet from the track where the view was somewhat obstructed, but saw and heard no train, and- that he again stopped, looked and listened when his horse was about four feet from the track, and there could see the track for about 600 or 700 feet from the crossing, and not seeing nor hearing a train started across with the result that his wagon was struck in the rear by a train, the question of the plaintiff’s contributory negligence is for the jury.</p> <p>Practice, C. P. — Trial—Verdict—Recording verdict — Polling jury.</p> <p>3. The only valid verdict is that which the jury announce orally in court, and which alone is received and recorded as the jury’s finding.-</p> <p>4. Where a jury orally announce that they find a verdict in favor of the plaintiff and against the defendant for a sum stated, and this is duly recorded, the action of the court in reassembling the jury so as to let them make a written memorandum of their verdict which they had submitted, conform to the oral verdict previously recorded, is unnecessary and unavailing.</p> <p>5. A motion to poll the jury cannot be made after the verdict has been openly announced to the court, affirmed by the jury collectively and recorded on the minutes.</p> <p>6. The reassembling of the jury by the court in order to make a written verdict conform to the oral verdict previously rendered and recorded, affords no occasion for a motion to poll the jury.</p>

Appeal, No. 68, Jan. T., 1909, by plaintiff, from judgment of C. P. Lancaster Co., May T., 1908, No. 29, for defendant non obstante veredicto in case of Jacob G. Graybill v. Hiram F. Ruhl. Assumpsit to recover the purchase price of land. Before Landis, P. J. At the trial the jury returned on the instruction of the court a verdict for plaintiff for $3,458.87. Subsequently the court entered judgment for defendant non obstante veredicto.

Appeal, No. 115, Jan. T., 1909, by defendant, from judgment of C. P. York Co., April T., 1908, No. 21, on verdict for plaintiffs in case of Nora M. Hollinger, by her guardian and next friend, Frederick F. Snyder, and Frederick F. Snyder in his right as guardian of Nora M. Hollinger v. York Railways Company. Trespass to recover damages for personal injuries sustained by the plaintiff, a girl aged eighteen years and six months.

<p>Appeal, No. 119, Jan. T., 1909, by Emma J. Witman, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Jacob Buchar, deceased.</p> <p>Exceptions to report of George E. Neff, Esq., auditor. Before Bittenger, P. J.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 156, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1907, No. 90, on verdict for plaintiffs in case of Christian H. Shuemaker et ah, Executors of the Will of Christian Shuemaker, deceased, v. Eli L. Nissley.</p> <p>Assumpsit to recover the purchase money of real estate.</p> <p>At the trial the jury returned a verdict of $2,325.45, on which judgment was entered.</p> <p>On a rule for judgment for defendant n. o. v., Hassler, J., stated the facts to be as follows:</p> <p>The material facts are that the defendant on September 20, 1906, purchased a tract of land from the plaintiffs, at public sale, known as tract No. 2. The conditions of sale provided that the purchaser should sign an agreement, with approved security, immediately after the property was struck off, for the payment of the purchase money on April 1, 1907, and for faithful compliance with the conditions of sale. This the defendant did. It was stipulated in the conditions of sale that “the purchaser of tract No. 2 gets the benefit of the option thereon.” Notice of what this option was was given at the sale, and at the trial it was shown to be the right of a proposed street railway company to purchase a strip of land along one side of the said tract, thirty feet wide, upon which to lay its track, for the sum of $1;000. The option was held by a committee of a proposed street railway company, who entered into an agreement with the plaintiffs, after the sale of the land to the defendant. Just what the agreement contained was not shown, and it was not produced at the trial. It does not appear that the plaintiffs received any money or other benefit from the option when the agreement was made, or at any other time. Nor does it appear that any benefit is to arise from that agreement, or that it contained anything that in any way would affect the purchaser’s title or right to the land in question. The company for which the said committee was acting did not build their road and did not take the land. Another company, which it did not appear had any connection with the committee’s company, or had acquired any of its rights, did, after the defendant was in possession of it under his agreement, take a portion of land under the right of eminent domain, and gave a bond to secure the defendant for any damage he might sustain by reason of such taking, to the sufficiency of which the defendant excepted. His exceptions were dismissed by,the court after a hearing in which he took.part. The defendant took possession of the land soon after the sale of it to him, and has continued in possession of it since, farming it and gathering the crops. On April 1, 1907, the plaintiffs tendered the defendant a deed, and upon his refusal to pay the purchase money, brought this suit to recover it.</p> <p>Error assigned was in discharging rule for judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 162, Jan. T., 1909, by defendant, from decree of C. P. York Co., Jan. T., 1908, No. 1, on bill in equity in case of Western National Bank, American Silk Company, C. H. Emig and Harry S. Wiest v. York Silk Manufacturing Company.</p> <p>Bill in equity for a receiver.</p> <p>Wanner, J., stated the facts to be as follows:</p> <p>The claim of Brown Brothers & Company, is for the sum of $153,187.96 for moneys advanced, at the request of the York'Silk Manufacturing Company, in the purchase of raw silk in Japan, with interest on a part thereof, and $5,000 for plaintiffs’ expenses and counsel fees.</p> <p>The plaintiffs, from March 12, to August 10,1907, issued certain letters of credit, for the account of the York Silk Manufacturing Company, addressed to Japanese silk merchants, and afterward accepted and paid the drafts of the latter, covering their invoices of silk, in consideration of the defendant’s agreement to provide the plaintiffs with the funds necessary to meet said acceptances, previous to the maturity of said drafts, and to pay certain commissions, and expenses.</p> <p>The bills of lading were to be made out in favor of the plaintiffs, and the title and ownership of the goods were to remain vested in the plaintiffs, until such time as the defendant should pay its indebtedness to the plaintiffs in full.</p> <p>Plaintiffs also had the right to sell and dispose of the goods thus pledged by the defendant, to reimburse themselves for their advances, in the event of the defendant defaulting in its payments.</p> <p>Pursuant to this contract, which is contained in the letters of credit, and the agreement of the defendant attached thereto, the plaintiffs accepted drafts for silks purchased by the defendant on said letters of credit, to the amount of $211,890.77, which silks came to the plaintiffs, with invoices, and bills of lading, made out in their names. Of these silks, 193 bales of the invoice value of $133,692.63, were afterward delivered to the defendant at York, Pa. The remainder of them, viz.: 100 bales, of the invoice value of $78,198.19, remained with, and are still in the possession of, Brown Brothers & Company.</p> <p>The various "Trust Receipts” under which said goods were “intrusted” to the defendant, from August 24 to October 23, 1907, provided that the defendant should hold the same in trust for the plaintiffs, as their property, substantially as specified in their former agreement. They were at liberty to sell the same on the plaintiffs’ account, and to turn over the proceeds of sale to them, to be applied to the payment of said acceptances and of any other indebtedness of the defendant to Brown, Shipley & Company, or to Brown Brothers & Company.</p> <p>Permission was also granted defendant to manufacture and remanufacture the silks, with the duty of identifying the product and selling it in the same way, for the plaintiffs' benefit. In case such product could not be identified, the defendant was to keep and hold, “in trust for Brown Brothers & Company and as their property” manufactured goods of equal value, with the property originally received from the plaintiffs, and on demand to deliver up the same to them.</p> <p>Brown Brothers & Company reserved the right to cancel this trust at any time, and to repossess themselves of the silk or of the manufactured product, or of the proceeds of sale of either, wherever the same might be found.</p> <p>It was further stipulated that on the defendant's failure, suspension, or assignment for the benefit of creditors, or on the nonpayment at maturity of any of said acceptances, or other indebtedness of the defendant, to either Brown, Shipley & Company, or to Brown Brothers & Company, all obligations, acceptances, or other indebtedness of the defendant to them should at once become due and payable.</p> <p>The defendant being in default, the plaintiffs petitioned the court for a return of the goods, in the receiver’s hands, alleging title thereto, under said agreement and trust receipts. The receivers assenting thereto, the court, on May 5,1908, ordered the return of seventy-five bales of raw silk, of the market value of $35,934.30. At the same time, by authority of the court, the receivers paid to the plaintiffs the sum of $31,900.75 for certain partly manufactured goods which they retained. But other silks, of the value of $34,277.29, which had also been received from the plaintiffs, by the defendant, have never been returned. The defendant’s indebtedness for these being admitted, it was afterward paid by the receivers under an order of the court. But defendant denies all liability for moneys advanced by plaintiffs on any of the goods returned to them.</p> <p>The court entered a decree in favor of the plaintiffs.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Bridges—County bridge — Approach to bridge — By-law— Nonsuit.</p> <p>In an action against a county to recover damages for personal injuries sustained by the alleged negligence of the county in not maintaining a guard rail along the side of an approach to a county bridge, a nonsuit is properly entered where the evidence of the plaintiff shows that the accident did not occur on any part of the approach to the bridge, but did happen on a township road leading up to the approach of the bridge.</p>

<p>Will — Devise—Fee simple estate — Power of disposition.</p> <p>1. A devise, generally or indefinitely, with power of disposition, carries a fee.</p> <p>2. Testatrix devised the residue of her estate to her sister-, and further directed: “It is my wish however, that if the whole or any part of my estate should not be disposed of by my said sister during her lifetime, that at her death the same should be converted into money.” She also directed that this monejr should be divided among certain charities, Testatrix died within a calendar month from the date of the will. Held, that the sister took an estate in fee simple in the land.</p>

<p>Appeal, No. 165, Jan. T., 1909, by plaintiffs, from judgment of C. P. York Co., Oct. T., 1907, No. 36, on verdict for plaintiffs on case stated in suit of Barbara F. Witmer and Mary Grove, Administrator d. b. n. of the Estate of Sarah J. Hostetter, deceased, v. Charles J. Delone.</p> <p>Case stated to determine title to real estate. Before BitTENGER, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court and in the report of the case of Witmer v. Delone, ante, p. 448.</p> <p>The court entered the following judgment:</p> <p>And now, March 31, 1909, after due consideration, being of opinion that the administrators, d. b. n., can give and deliver to Charles J. Delone a fee simple title to the tract of land purchased by him, and described in the case stated; and that the defendant, Charles J. Delone, should not pay interest on the' purchase money from the second day of April, 1906, judgment is, according, entered on the case stated, for the plaintiffs, and against the defendant, Charles J. Delone, for the sum of $7,514.88, with costs of suit.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Master and servant — Elevator.</p> <p>In an action by an employee against his employer to recover damages for personal injuries sustained as the result of the fall of an elevator, a verdict and judgment for the plaintiff will be upheld where the evidence tends to show that the elevator was old, wabbled, was loose in its bearings, that its safety clamps or clutches failed to work, and that the plaintiff was not guilty of interfering with the cable or rope, so as to cause the fall.</p>

<p>Insolvency — Petition—Jurisdiction—Act of June 4, 1901, P. L. 404.</p> <p>1. An allegation of the insolvency of a debtor and his failure to make an assignment for the benefit of creditors contained in a creditor’s petition is not all that is necessary to give the court jurisdiction to appoint a receiver of an alleged insolvent’s estate upon the application of a creditor under the Act of June 4, 1901, P. L. 404. The petitioner must go further and allege and prove that the alleged insolvent has committed one or more of the acts of insolvency enumerated in sec. 7 of the act. On the other hand, the court has no jurisdiction to appoint a receiver where it is not alleged'or shown that the debtor is in fact insolvent, although he may have committed one or more of the acts enumerated in sec. 7.</p> <p>Wards and phrases — “And” and “or.”</p> <p>2. “And” will be construed “or” only when it appears from the context of the statute that the intention of the lawmaking power can only be given effect by so construing it.</p>

Appeal, No. 5, May T., 1909, by defendant, from judgment of C. P. Dauphin Co., Sept. T., 1907, No. 150, on verdict for plaintiff in case of Harrisburg, Carlisle & Chambersburg Turnpike Road Company v. Cumberland County. Appeal from award of jury of view.- Before Shull, P. J., ' specially presiding.

<p>Appeal, No. 371, Jan. T., 1907, by defendant, from judgment of C. P. Berks Co., May T., 1905, No. 101, on verdict for plaintiff in case of National Union Bank of Reading v. James Y. Shearer.</p> <p>Replevin for a lot of tobacco. Before Endlich, P. J.</p> <p>At the trial it appeared that the tobacco was stored in a building constructed by the defendant and intended to be rented by him for use as a cigar factory. While waiting for a tenant he took on storage therein a quantity of tobacco owned by J. L. and M. F. Greene, and issued to them a large number of certificates of which the following is a sample:</p> <p>I promise to deliver to J. L. & M. F. Greene,</p> <p>One case of Seed Loaf Tobacco included in receipt of this date. Marks, Nos. and weight as per margin.</p> <p> </p> <p>The Greenes delivered these certificates without indorsement to the plaintiff as collateral for a loan. The court submitted to the jury the question whether the defendant was a warehouseman.</p> <p>Verdict and judgment for plaintiff for $2,621.66.</p> <p>On rule for a new trial and for judgment n. o. v. Endlich, P. J., filed the following opinion:</p> <p>This cause has been twice submitted to a jury upon substantially the same questions and under substantially the same evidence. In each instance the verdict has been adverse to the defendant. Viewed as it must be, see Mintzer v. Greenough, 192 Pa. 137, 144; Smith v. Shields, 194 Pa. 635, in the light of the charge the finding of the jury at the last trial establishes that defendant was a warehouseman; that the papers pledged to plaintiff were issued by him as such, i. e., warehouse receipts intended to represent cases of tobacco stored with him as a warehouseman; that they were delivered to plaintiff with intent thereby to transfer to it the property represented by them; that they were so accepted by the plaintiff as security for money advanced by it to the party to whom they were issued and in part still owing; and that the value of the tobacco described in them and withheld by defendant from the plaintiff was so and so much, being less than the amount remaining unpaid upon the loan.</p> <p>1. The first contention on defendant’s part is that there can be no recovery by plaintiff because its declaration avers a pledge to it of 125 cases of tobacco to secure an advance of $20.00 per case, or a total of $2,500, and a failure to pay that debt — whereas the proofs show a loan of $8,400 upon the security of 125 cases at the rate of $20.00 per case, together with other collateral, and a reduction of the initial debt by partial payments, etc., to $2,500. It may be that a statement of plaintiff’s claim in the latter form would have been more strictly in accord with the letter and intent of the Act ’of April 19, 1901, P. L. 88, and the principles applicable to the procedure under it indicated in the opinion filed in this case on November 24,1906. But the variance seems to be without any material significance whatever. For the purposes of this action, there is no substantial difference between saying that 125 cases of tobacco were accepted as a pledge for an advance of $20.00 per case “or” (meaning, of course, “that is to say”) an advance of $2,500 which remains unpaid, and saying that they were accepted at the rate of $20.00 per case as security tp the extent of $2,500 for an advance of $8,400 upon that and other collateral, and that a balance thereof of $2,500 provided for by this pledge remains unpaid. Under either form of statement the essential averment is the fact of a pledge of the entire quantity of tobacco as security for $2,500 advanced, which (aside from certain other questions raised) is conceded to be in accord with the evidence. Nor for this reason is there any pertinence in the suggestion that upon an allegation of a pledge of so and so many cases for an advance of $20.00 per case the plaintiff’s recovery must be restricted to a sum not exceeding that amount upon each individual case worth that much or more, and to the actual value’ of each worth less — a rule whose application here would reduce the verdict by something over $200.</p> <p>2. The definition of “warehouseman” given to the jury was that which is approved in Bucher v. Com., 103 Pa. 528, and Bank v. Jagode, 186 Pa. 556, and agrees with that adopted by the warehouse receipts law proposed by the commissioners on uniform state laws, in sec. 58. The defendant now seeks to import into it an element not found in it. He insists that, in order to be a warehouseman a man must not only be engaged, but also hold himself out to the general public as engaged in the business of storing goods for profit. Such for certain purposes seems to be the rule in Wisconsin: Shepardson v. Cary, 29 Wis. 34; Gailfus v. Corrigan, 95 Wis. 651; Security Warehousing Co. v. Hand, 143 Fed. Repr. 32. But that is because the statute of that state associates “warehouseman” with common carriers and others whose business involves a public profession and is therefore to be deemed construable as ejusdem generis with such. In other states the governing statutes provide for and refer to a class of warehousemen constituted public warehousemen, and the decisions proceed thereunder. Our statute does not do so and has no similar sound. It speaks of “warehouseman, wharfinger or other person.” Under the rule, noscitur a sociis, each of these terms takes its complexion from the others. But a wharfinger is simply “one who keeps a wharf for receiving goods for hire:” Rodgers v. Stophel, 32 Pa. 111. That that was his business may well be proved as against him by showing that he so held it out to the public generally and actually received and charged for whatever goods were deposited upon his wharf: Rodgers v. Stophel, supra. So, no doubt, a holding out of his warehouse to the public at large by advertisement, conspicuous signs or notices, etc., as a place for the storage of goods for hire by anyone seeldng such accommodation would be evidence to fasten upon the owner the character of a warehouseman: It would not be enough to make his receipts warehouse receipts, as was pointed out in Bank v. Jagode, 186 Pa. 556, 565, and repeated in Moors v. Jagode, 195 Pa. 163, 166, unless supplemented by proof that he was in fact a bona fide warehouseman. But in connection with that fact it would be evidence, though not indispensable. No relevant argument can be drawn from the rule as to the character of the business of a common carrier. The very essence of that business, expressed by the word “ common,” is that it involves an undertaking, to carry for all persons indifferently: Verner v. Sweitzer, 32 Pa. 208. The word “common,” or its equivalent, is, however, no part of the essential definition of warehouseman or wharfinger. In Hallgarten v. Oldham, 135 Mass. 1, much stress is laid upon the fact that a private warehouseman has “an unfettered right to choose the persons for whom he will hold,” and is thus distinguishable from a common carrier who “has no delectus personarum, but is bound to carry for anyone.” But suppose that the jury in order to find defendant to have been a warehouseman must have found that he held himself out to the public as such, a “loose expression” perhaps (Denithorne v. Hook, 112 Pa. 240, 243), but certainly the utmost that can be insisted upon. It is the uncontradicted evidence that he had his property insured as a “warehouse,” that he so described it in transactions and correspondence with others than the Greenes whose tobacco he received there, and that from the beginning of his dealings with them he knew of and permitted their use of the receipts issued by him to them as collateral for advances of money from various banks in Reading. Whilst it is true that the testimony does not show that he generally solicited the storage of goods in his place, yet all this clearly amounts to a sufficient declaration of its character to the public as a warehouse, a sufficient holding out of it to the public as such. And when upon evidence of that sort the jury was asked to decide whether he was a warehouseman and they said he was, the answer must be deemed to involve, because the evidence necessarily involved, if anything, his public profession of the business. If, however, the jury could not have found him to be a warehouseman except upon testimony which if it made him such also required a finding that he so held himself out to the public, then the omission in the charge to call their attention to this feature cannot possibly have done the defendant any harm, and constitutes no adequate ground for setting aside the verdict.</p> <p>3. The jury was instructed that “if ... . the defendant was a warehouseman and his building a warehouse, then these papers, if issued to represent cases of tobacco stored with him as a warehouseman, were warehouse receipts.”</p> <p>In order to be on its face complete and self-explanatory, a warehouse receipt might well be required (as is indeed proposed by the draft of the uniform law above referred to, sec. 2) to set forth the location of the warehouse, the date of issue, the consecutive number, a promise to deliver to bearer or to a specified person or to the order of such, the rate of storage charges, a description of the goods or the packages containing them, the signature of the warehouseman, and a statement of any claim of co-ownership or lien on his part. But under the law as presently obtaining, there is no such requirement. What is said in Bank v. Jagode, 186 Pa. 556, 563, about a receipt purporting to be issued by a warehouseman and to be for goods held in storage and deliverable on the order of the depositor and the return of the paper, is said by way of description of the particular instrument there in question, and not by way of laying down any definite rule as to what a warehouse receipt must contain. On the contrary, it is stated that no form is prescribed. Indeed, an examination of many authorities, which it would be an affectation to enumerate, seems to demonstrate the impossibility of indicating as essential any one or any combination of the above-mentioned features, so long as by express language or by fair implication from the .language understood in the light of the circumstances under which and of the intent with which the instrument was issued, it involves an acknowledgment by the signer of his possession of designated goods of another on storage and an obligation to deliver them to a specified person, or to his order, or to bearer, on return of the instrument. Upon proof that the signature is that of the party issuing the instrument, that he was a warehouseman, that the goods designated were actually stored with him, and that the instrument was given as representing the same, the instrument is to be deemed a warehouse receipt with all the qualities and incidents attaching thereto. If these facts be admitted or established by undisputed evidence, that conclusion may be one for the court. If the evidence concerning them be conflicting or susceptible of contrary inferences, it will be one for the jury. As to the papers here in question, there is no room for disputing their signature by defendant. His name was stamped upon each with a rubber stamp, and authenticated by himself writing under it the initial letter of his name, “S.” That this was a sufficient signature is evident from the rules discussed in Knox’s Est., 131 Pa. 220, and from the modern cases recognizing signature by mere stamp: Bennett v. Brumfitt, L. R. 3 C. P. 28; Robb v. Pennsylvania Co., 3 Pa. Superior Ct. 254; s. c., aff’d 186 Pa. 456. Neither is there any warrant for saying that the papers refer to another receipt. There was no other. The meaning of the words “included in receipt of this date” is either “included in this receipt,” or “included in the deposit of this date.” The nature, quantity and marks of the goods represented by each paper are set forth in it, and it contains a distinct promise to deliver them to the owner. On the part of a warehouseman such a promise obviously implies a statement that he holds the goods in storage; and the condition of delivery, the surrender of the receipt, involved in the promise itself, is further supplied by the statute, forbidding delivery except upon return of the receipt. If then the defendant was in fact a warehouseman and issued tñese papers in his capacity of warehouseman to represent cases of tobacco stored with him as such, and not as he contends as mere memoranda between himself and the Greenes, they were warehouse receipts. Clearly it was not error of which defendant can complain to leave it to the jury to say under all the evidence whether or not they were such.</p> <p>4. If they were in fact warehouse receipts the act of 1866, without prescribing and hence without reference to their form, makes them “negotiable.” The omission of words indicative of a purpose to that effect is by itself of no manner of consequence in view of the requirement of the statute that nonnegotiable receipts shall be so marked. Every contract is conclusively presumed to be made with reference to the existing law and as embodying its relevant provisions: Snyder v. Leibengood, 4 Pa. 305, 308; West. Nat. Bank’s App., 102 Pa. 171, 184; Burnett v. Railroad Co., 176 Pa. 45, 48; Silk Mfg. Co. v. Reilly, 187 Pa. 526, 532.</p> <p>What then does the act mean by saying that warehouse receipts shall be negotiable? It is to be noted that there is, first, the substantive declaration that warehouse receipts shall be negotiable, and, second, the statement that they may be transferred by indorsement and delivery. Remembering that these provisions must be understood as having each a meaning of its own and not as being tautological, it will not do to contract them into one and read the two as meaning together nothing more than if the language were, “warehouse receipts shall be negotiable by indorsement and delivery.” Since the direction making such instruments negotiable would, without anything more, have implied that they should be transferable by indorsement and delivery, the addition that they may be so transferred indicates, according to the strictest application of the principle expressio unius est exclusio alterius, Maxwell, Int. Stat., 398, that the legislature in the first declaration had in mind something different from the mere mode of transfer and intended to impart to these instruments a quality not synonymous with or exhausted by such transferability. Now, the distinctive quality expressed in our jurisprudence by the term “negotiable” is that of passing without incumbrance or condition: Overton v. Tyler, 3 Pa. 346; Woods v. North, 84 Pa. 407. It needs no citation of authorities to show that that settled meaning is, in so far as it is applicable to the subject-matter of an enactment employing the term, the one with which it must be supposed to have been used therein. The limitations of this meaning of the word in the act of 1866 pointed out in Shaw v. Railroad Co., 101 U. S. 557 .(which was the case of a bill of lading, coordinated with warehouse receipts by the act of 1866, and thereby put upon the same footing: Sloan v. Johnson, 20 Pa. Superior Ct. 643, 648, without restriction to goods in transit; Munroe v. Warehouse Co., 75 Fed. Repr. 545), are such only as necessarily result from the peculiar nature of the instrument involved and the peculiar purposes it is designed to serve. As there decided, the rule that a purchaser without notice though under circumstances of suspicion, Phelan v. Moss, 67 Pa. 59, of a lost or stolen bill or note indorsed in blank or payable to bearer is not bound to look beyond the instrument, has no application to the case of a lost or stolen bill of lading, nor, it may therefore be added, to a lost or stolen warehouse receipt. Such an instrument performs functions different from those of a note or bill. It does not, like these, take the place of banknotes or coin. It is the symbol of the ownership of goods and a representative of those goods. If the goods themselves be stolen or lost, the owner's property therein is not divested, and neither can it be by the loss or theft of the receipt without default on his part. In principle and reasoning there is no difference between this case and Transportation Co. v. Steele, 70 Pa. 188, or the rule laid down in Decan v. Shipper, 35 Pa. 239, before the act of 1866 was passed. And similarly, in Bank v. Hurt, 99 Ala. 130 (12 So. Repr. 568), the statutory negotiability of warehouse receipts was held not to enable one taking them by way of pledge from a factor who without authority of the owner had stored his goods and obtained the receipts, to assert title to the goods superior to that of the owner. But no questions of that sort arise here. There is no question in this case at all between the owner of the goods and the holder of the receipts. The question is whether, in the face of the statute declaring them negotiable, the warehouseman who issued Them can be heard to set up a secret arrangement between himself and the owner defeating the apparent right of the holder whose protection is the very purpose of the enactment: Pig Iron Storage Warrant Co. v. Iron & Coal Co., 205 Pa. 403, 411. No authority has been pointed out for an affirmative answer to this question. Nor is it conceivable how such an answer can be made except with the effect of entirely wiping out of the statute the words “shall be negotiable.” It would seem to be going quite as far as to permit the warehouseman to deny, as against the holder of the receipt, that the goods mentioned therein were in his keeping — ■ a defense which has been adjudged inadmissible: Stewart v. Insurance Co., 77 Tenn. 104; Cathcart v. Snow, 64 Iowa, 584 (21 N. W. Repr. 94, 95). The instructions to the jury on this subject do not appear to have been wrong.</p> <p>5. Finally the jury was told that a delivery of the receipts to the plaintiff with the intent to entitle it to the tobacco represented by them, though without formal indorsement at the time, was enough to bring it, as the holder thereof, substantially within the protection of the principles just discussed. Probably the decision in Sloan v. Johnson, 20 Pa. Superior Ct. 643, that warehouse receipts will pass by such delivery alone is conclusive of the correctness of that instruction. But it is contended that the question there arose between the owner of the goods and the party to whom he had delivered warehouse receipts representing them; and that what constitutes a valid and complete transfer of them as between those parties is not necessarily a valid and complete transfer as between the warehouseman and the transferee. The reasons for such distinction are' by no means clear, though it is plain enough that if, in order to be fully available against the warehouseman, the transfer must be by indorsement as well as delivery, then where the transfer is in the first instance by delivery alone and the indorsement is added only after notice to the transferee of equities, claimed by the warehouseman, the transfer must be treated as taking effect as of the time when the indorsement is actually made, and therefore as subject to those equities in so far as they may be established by the proofs and not displaced by waiver or estoppel.</p> <p>It seems to be the general doctrine of American decisions that apart from any statutory provisions a warehouse receipt, like a bill of lading, is the symbol or representative of the goods it is issued for, and that, whether drawn to the owner’s order, or to bearer, or simply to the owner, its delivery by the latter is effective as a symbolical delivery of the goods themselves, with or without indorsement. It is sufficient to refer to the following cases as sustaining this statement by their own reasoning and by the citation of authorities collated in them: Rice v. Cutler, 17 Wis. *351; Whitney v. Tibbitts, 17 Wis. *359; Atherton Co. v. Ives, 20 Fed. Repr. 894; Banking Co. v. Peacock, 103 Ga. 171 (29 S. E. Repr. 752); Stewart v. Insurance Co., 77 Tenn. 104. The contrary doctrine apparently held in Hallgarten v. Oldham, 135 Mass. 1, at variance with earlier rulings of the same court, is founded on the ancient English view embodied in 2 Dan. Neg. Instr., sec. 1713, and upon the express assumption, contrary to the rule, obtaining here and elsewhere, that a return of the receipt to the warehouseman is not a condition of the right to take away the property stored (see p. 12). If the receipt stands as the symbol of the goods, the owner of the latter to whom it is issued has the same power to pass title to the goods by delivery of the receipt as he has to pass title to the goods in his manual possession by a delivery of them: Transportation Co. v. Steele, 70 Pa. 188, 190, 191. Delivery of the one is in law delivery of the other. Manifestly, therefore, it is immaterial whether the receipt be written to his order, or to bearer, or not — except where, as is emphasized in Hallgarten v. Oldham, 135 Mass. 1, it is by statute required to be “negotiable in form.” Neither, if the delivery of the receipt is a delivery of the goods, is its indorsement or nonindorsement of any consequence with respect to the completeness of the transaction. The effect of indorsement is not to impart original negotiability to an instrument not originally negotiable. It is not an independent contract, says Chief Justice Gibson in Patterson v. Poindexter, 6 W. & S. 227, 234, but a parasite which takes the hue of the thing with which it is connected and operates one way when attached to a negotiable instrument and another way when attached to other choses in action. As already seen, it does not when put upon a warehouse receipt import a guaranty of title. But it is asserted by defendant’s counsel with much confidence that our statute makes it indispensable to the legal transfer of title. The statute does not say so. It does not say that warehouse receipts are negotiable by indorsement. It says, in guarded and significant language, they “shall” be negotiable, and “may” be transferred by indorsement and when so transferred shall be deemed and taken, etc. In other words, it peremptorily gives to all warehouse receipts a certain quality which does not in any degree derogate from the character they had before, and then permissively provides for a specified method of transfer, not in terms exclusive of any other, and attaches to such additional method, if pursued, consequences differing, if at all, only in part from those incident to transfer by mere delivery. It is worthy of note that in Transportation Co. v. Steele, 70 Pa. 188, the decision, involving certain bills of lading, which are included in the act of 1866 with warehouse receipts, proceeded expressly without reference to that statute. Nor is it insignificant that the supplement to the same of June 13, 1874, P. L. 285, relating to attachments of goods in hands of warehouse-men who have issued receipts therefor, speaks of these as having been “negotiated and transferred by indorsement or delivery, as provided in the act to which this is a supplement, and makes “the holder .... to whom the same shall have been transferred or delivered as aforesaid” the garnishee. It is doubtless true that a mistaken opinion of the law on the part of the legislature does not avail to change the law: Bank of Pennsylvania v. Com., 19 Pa. 144, 156; Seiders v. Giles, 141 Pa. 93, 100. On the other hand, in the interpretation of a statute, it is very well settled that the understanding of it evidenced by the legislature in subsequent enactments is to be treated as of great weight: Folk v. State Capital Savings, etc., Assn., 214 Pa. 529, and cases cited at p. 538. But the cases already cited of Rice v. Cutler, and Whitney v. Tibbitts, 17 Wis. *351, *359, directly raised the question of the sufficiency of a transfer of warehouse receipts with and without words of negotiability by mere delivery and without indorsement in view of a statute apparently exactly like ours in its provision for transfer. It was pointed out that warehouse receipts were transferable by delivery independently of the statute — that the language of the latter as to the mode of transfer was permissive only — and that, for these reasons and keeping in mind the objects of the enactment (substantially the same as those ascribed to ours), if the intent of the parties was to transfer the property by the delivery of the receipts, the same was, unaffected by the statute, effective for that purpose without indorsement. It is true that the contest there was between the transferee on the one side, and the transferor or his attaching creditors on the other. But the principle of the decisions makes the conclusion equally applicable in a contest between the transferee and the warehouseman. That principle is that for all purposes the transfer of goods in storage is complete upon delivery of the receipts with intent to transfer title to the goods represented thereby; that an indorsement of the receipt adds nothing to the effectiveness of such delivery; and that the statute, whilst permitting, does not require transfer of warehouse receipts by indorsement.</p> <p>What has been said seems to cover all the positions taken by defendant and examined not without a disposition to make every permissible intendment in his favor. The result is the conclusion that there is no ground apparent for either entering judgment for him upon the whole record or granting a new trial. And in this connection it may not be out of place to suggest that, even conceding the liability of the transferee of warehouse receipts by delivery only to be affected with a secret agreement between the transferor and the warehouseman such as here alleged, the pleadings and evidence in this case are not calculated to sustain a verdict for defendant on that ground. Whatever may be the precise effect of the statutory declaration that warehouse receipts shall be negotiable, and indeed apart from that declaration, it is very certain that they are something more than and different from ordinary receipts which -are noncontractual and therefore under familiar principles open to parol explanation and contradiction. Warehouse receipts are, as pointed out in Stewart, Gwynne & Co. v. Insurance Co., 77 Tenn. 104, 109, essentially contracts and as such within the rules applicable to. written instruments — a doctrine resulting not precisely from their negotiability, but from the nature and purposes of such receipts regardless of their form, and yet all the more manifestly in point where, as here, the receipts contain a formal promise to deliver the packages described in them, unqualified except by the condition implied by law and usage that the receipt be returned and the storage charges paid. It is to be noted that the affidavit of defense, which with the declaration makes the issues to be tried in replevin under the act of 1901, neither alleges fraud, accident or mistake as accounting for the issuance of the receipts in this form, nor avers that their execution was induced by the oral agreement set up by defendant to overcome it. The evidence on the other hand relied upon to establish that agreement, denied by J. L. Greene with whom it is said to have been made, consists solely of the testimony of the defendant. It is corroborated by no circumstances, unless it be the fact that the words “ or bearer ” contained in a preyious batch of receipts were omitted in these. In view of the needlessness of those words (and in a note to sec. 37 of the proposed uniform warehouse receipt law it is said to be “not usual for warehouse receipts to be made to bearer”) and of a great variety of circumstances, which it is unnecessary here to discuss, but which strongly tend the other way, Fisher v. Scharadin, 186 Pa. 565, 568, this single item cannot be regarded as equivalent in its probative effect to the testimony of a second witness. The testimony of the remaining witnesses referring to the alleged agreement, however, is not in any sense proof of its existence. It goes to show simply that its existence was subsequently and after the plaintiff's rights had attached acknowledged by J. L. Greene, and thus went to discredit his denial of it on the stand. Of course no declarations of his after he had transferred the property to the plaintiff could avail to affect its title; and equally of course proof of his declarations as to the existence of a fact, being nothing more than hearsay evidence of the fact, cannot stand as proof of it: Com. v. Contner, 18 Pa. 439, 444. Neither has there been pointed out any statement by defendant anywhere that the alleged agreement operated as the inducement for his execution and issuance of the receipts containing the promise mentioned. The element of fraud, accident or mistake has so long been deemed and so often held an essential part of both pleadings and proofs in order to entitle a party to relief against the letter of his contract that a reference to the cases may well be omitted. Equally settled is the requirement for this purpose of both allegation and proof that a parol agreement relied on as varying a written contract operated as the inducement for its execution, without which it would not have been entered into: Myers v. Kipp, 20 Pa. Superior Ct. 311, 316. And under the very recent decision in Sulkin v. Gilbert, 218 Pa. 255, it is, where the defendant setting up such defense is himself a witness, indispensable to its establishment that he should explicitly and directly so swear.</p> <p>The rules to show cause are discharged.</p> <p>Error assigned was in refusing binding instructions for defendant and in refusing judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 204, Oct. T., 1908, by defendants, from order of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 627, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Taylor Lumber Company v. Board of Trustees of Carnegie Institute.</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>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 252, Jan. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1906, No. 2,491, on verdict for plaintiff in case of Charles C. Diehle v. The United Gas Improvement Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court.</p> <p>Plaintiff presented these points:</p> <p>6. If the jury believe that injury, deterioration, settlement or misplacement of the gas mains of the defendant company, which existed at Sixth and Market streets on October 4 and 5, 1906, were a natural or probable consequence of any matter or thing, such as a sewer, a depression or a washout, which existed there in close proximity to the said mains, and that the gas company, or its agents, had knowledge, or by the exercise of reasonable care could have had knowledge of such matter or thing for a sufficient length of time to have made a proper inspection and repair, then it was the duty of the gas company and its agents to efficiently guard against any damage that was likely to result because of the presence of the said matter or thing in proximity to its said mains, and if you believe that such matter or thing existed in proximity to the defendant company’s mains at Sixth and Market streets on October 4 and 5, and that the defendant company or its agents had knowledge or ought to have had knowledge of it, and that by reason of such matter or thing the mains of the gas company were displaced and an explosion brought about which injured this plaintiff, then it is for you to say whether or not the defendant company and its agents did everything that they reasonably could have done in view of the fact that they and their agents knew of it or by the exercise of reasonable care could have known of it, and if you believe that they and their agents did not take such proper precautions, then you would be justified in finding that the defendant company was negligent. Answer: Affirmed. [2]</p> <p>7. If you believe that the defendant company, or its agents, either knew or ought to have known of any matter or thing such as a sewer, a depression or a washout, in the neighborhood of its gas- mains at Sixth and Market streets on October 4 and 5, 1906, which would weaken or have a tendency to weaken same, or which would cause or have a tendency to cause its mains to become leaky, then it was in duty bound to take cognizance of the existence of such matter or thing, and to take whatever precautions were necessary to guard against injury to its pipes, and if you believe that it failed so to do, and that because of the said matter or thing, its system of mains and pipes subsequently became impaired and leaky, and that the said impairment and leakage was brought about because the said defendant company had not taken such special precautions, then you would be justified in finding the defendant company guilty of negligence. Answer: That is the rule, provided you determine and find that the defendant company, or its agents, had a sufficient period of time after the discovery of the defect to make the proper repair for the protection of its mains. [3]</p> <p>Defendant presented these points:</p> <p>1. The burden of proving either the specific act of negligence that caused the explosion, or such circumstances as would justify the inference that the degree of care required by the law was not observed by the defendant is upon the plaintiff. The plaintiff has failed to prove any specific act of negligence on the part of the defendant or any circumstances justifying the inference that the defendant was negligent. Your verdict must, therefore, be for the defendant. Answer: That point is refused. [4]</p> <p>2. The plaintiff’s statement of claim alleges that the defendant allowed its gas mains to be so out of repair and to get into such a leaky and dangerous condition that the gas which was supposed to be confined therein escaped therefrom and caused an explosion. There is no evidence in the case from which the jury would be justified in finding that any of the gas mains of the defendant became out of repair and got into a leaky and dangerous condition through any neglect on the part of or act committed by the defendant; there being no proof to support the allegation contained in the statement of claim, the plaintiff cannot recover in this action. Answer: That point is refused. [5]</p> <p>3. There is no evidence in the case that the defendant or its employees had any actual knowledge that its mains were broken at the northwest corner of Sixth and Market streets prior to the explosion, nor is there any evidence of circumstances prior to the explosion which justify the inference that the defendant or its employees ought to have known that its mains were so broken. The defendant cannot be held to have been negligent in failing to repair the mains before the explosion, unless it appears that the defendant or its employees had either actual or implied knowledge of the existence of the breaks in the mains a sufficient time prior to the explosion to have had them repaired. As there is no such evidence in this case, your verdict must be for the defendant. Answer: That point is refused. [6]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (2-6) above instructions, quoting them.</p>

<p>Contract — Option to sell real estate — Deed—Escrow.</p> <p>Where an owner of a mill property gives an option to a promoter for the purchase of the same in consideration of stock of a company to be organized by the promoter, and as a part of the option agrees to sell, if he so desired, the grain and flour on hand to the new company, and thereafter the owner deposits his deed for the mill with a trust company, in escrow, to be delivered to the new corporation on receipt of the stock of the company, and about a month after the stock is delivered to him, he sells his grain to the new company, and receives cash therefor, he cannot in an action against the trust company complain that certain promises of the promoter to himself had not been carried out, and that the trust company, knowing this, had delivered the deed for stock which turned out to be worthless, where it appears that prior to the sale of the grain he knew that the promises had not been kept.</p>

<p>Contract — Deed—Escrow.</p> <p>Where a trust company receives a deed in escrow to deliver it upon the receipt of a portion of the stock of a new corporation, which stock is the consideration for the deed, and the trust company assumes no responsibility as to the organization of the new corporation, and the grantor accepts the stock and gives a receipt in full settlement of the consideration named in his agreement with the promoter of the corporation, and the trust company is guilty of no neglect or fraud, it cannot be held liable to the grantor for a loss resulting from the depreciation in the value of the stock for which the deed was delivered.</p>

<p>Public officers — Increase of salary — :Constitutional officers — Legislative officers — Real estate assessors.</p> <p>1. Real estate assessors in counties having a population of 1,000,000 or over are public officers within the meaning of sec. 13, art. Ill, of the constitution of Pennsylvania, which provides that: “No law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment.” Such officers are not entitled to the benefit of the Act of May 31, 1907, P. L. 329, which increases the salaries of real estate assessors in counties having a population of 1,000,000 or over from $2,000 to $3,000.</p> <p>2. An office is a public one within the meaning of the constitution if the holder of it exercises grave public functions and is clothed at the time being with some of the powers of sovereignty.</p> <p>3. The term “public officers” is not restricted merely to officers created by constitutional provisions, but applies to officers who exercise important public duties, have delegated to them some of the functions of government, and whose offices axe for a fixed term and whose powers, duties and emoluments become vested in a successor, when the offices become vacant.</p> <p>4. A consideration of the duties imposed upon real estate assessors leaves no doubt that the relation which they sustain to the maintenance of government is of such consequence that they should be considered public officers. The functions which they perform are of prime importance. Their duties are designated by statute; they serve for a fixed period; act under oath, the duties they perform are semi-judicial in character and their services are indispensable in the fiscal system as established by the state.</p>

<p>Appeal, No. 325, Jan. T., 1908, by William S. Powell, from order of O. C. Lehigh Co., June T., 1902, No. 14, dismissing exceptions to auditor’s report in Estate of John M. Powell, deceased.</p> <p>Exceptions to report of Samuel A. Butz, Esq., auditor.</p> <p>From the record it appeared that John M. Powell died on April 19, 1901, leaving to survive him a widow, Elizabeth A. Powell, and seven children, five of whom were by a former wife, and two, Helen and Ruth, by the second marriage. On July 24, 1901, a will was probated, the date of which was April 5, 1895, which was before the birth of Helen and Ruth. By this will testator divided his entire estate into six equal shares, giving one share to his wife and the remaining five to each of his five children. Testator died without making any change in his will. On July 24, 1901, the widow delivered to the executor the following paper:</p> <p>“Allentown, Pa., July 24, 1901.</p> <p>“I, Elizabeth Ann Powell, widow of John M. Powell, deceased, do hereby signify my desire and intention to accept under the provisions of the will of John M. Powell as probated July 24, 1901. It being understood that all the children, including Helen and Ruth are to share equally with me in the estate, each to receive one-eighth of the estate being convinced that this was the desire of my husband, I hereby now accept the provisions of the will instead of my share under the intestate laws of Penna. subject to the including of Helen and Ruth, my daughters, and understanding that the estate is to be divided into eight shares instead of six shares.</p> <p>“[Signed] Elizabeth A. Powell.</p> <p>“[Signed] O. R. B. Leidy,</p> <p>“A. G. Dewalt."</p> <p>On October 23, 1901, the widow addressed to the executor the following paper:</p> <p>“Thomas M. Powell, Esq., Executor of the last will and testament of John M. Powell, deceased.</p> <p>“Sir:</p> <p>“Take notice that I, Elizabeth A. Powell, widow of John M. Powell, late of the City of Allentown, Pennsylvania, deceased, decline to take under the will of my deceased husband, notwithstanding the paper signed by me on July 24, 1901, electing to take under the same. At the time of signing said paper I was wholly ignorant of my rights under the law, and-I was in no way conscious of my legal rights and the rights of my two children.</p> <p>“[Signed] Elizabeth Ann Powell.</p> <p>“Witnesses present:</p> <p>“ Edward Harvey,</p> <p>“Calvin E. Arner.</p> <p>“Allentown, Pa., Oct. 23, 1901.”</p> <p>The auditor found that the widow was bound by the paper. dated October 23, 1901, and therefore reported in favor of dividing the estate into eight equal shares, and distributing it between the seven children and the widow.</p> <p>Exceptions to the auditor's report were sustained in an opinion by Trexler, P. J., and the account was referred back to the auditor. In a supplemental report the auditor allowed the widow one-third of the estate, and distributed the remainder amongst the seven children, share and share alike.</p> <p>Errors assigned were in dismissing exceptions to the auditor’s supplemental report.</p>

<p>Negligence — Railroads—Crossing—“Stop, look and listen” — Ignorance of crossing — Signals—Speed of train.</p> <p>1. Where a man is killed in the darkness of night by a railroad train while driving a wagon across a grade crossing, it cannot be set up as an excuse for his not stopping, looking and listening before going upon the crossing that he was ignorant of the country, and was unaware of the existence of the crossing.</p> <p>2. The negative testimony of witnesses in a grade crossing accident case that they did not hear a whistle blown, or a bell rung is not enough to make out a charge of negligence against the railroad company, as against the positive affirmative testimony of witnesses who did hear the signals, and who were in a position to know.</p> <p>3. In such a case the railroad company cannot be convicted of negligence in running a train at an excessive speed over a country crossing in the nighttime, where the uncontradicted testimony is that the train was not running at a rate of more than twelve miles per hour, and was under such control that it was brought to a standstill at the crossing when not more than half of the train had passed.</p>

Appeal, No. 297, Jan. T., 1908, by-defendant, from judgment of C. P. Berks Co., Aug. T., 1907, No. 44J, on verdict for plaintiff in case of Thomas Izydorczyk v. Reading Car Wheel Company. Trespass to recover damages for personal injuries. Before Endlich, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Railroads — Carriers—Common carriers — Delivery—Negligence—Perishable goods — Custom.</p> <p>Where a railroad company permits consignees of produce to sell the produce to retailers from cars in a yard known as a market yard, but, under a long-established custom, known to all parties, does not permit any one consignee to have more than three cars at a time in the market yard, and other cars of the consignees are kept in another yard until a car-is emptied and released in the market yard, a consignee cannot recover damages for a loss resulting from a deterioration of produce in the cars in the storage yard, where the railroad company is in no way negligent, and the delay in delivering cars to the market yard is due to the inability or the neglect of the consignee to empty and release cars in time to prevent the deterioration.</p>

<p>Replevin — Judgment—Affidavit of defense — Return day — Practice, C. P. — Act of April 19, 1901, P. L. 88.</p> <p>1. Under the replevin Act of April 19, 1901, P. L. 88, judgment for want of an affidavit of defense may be entered against the defendant before the return day of the writ, if the defendant has failed to file an affidavit of defense in fifteen days after the filing of the declaration and service of copy thereof.</p> <p>Appeals — Assignments of error — Appeal from, Superior Court. .</p> <p>2. On an appeal from the Superior Court to the Supreme Court, the proper form of an assignment of error is that “the Superior Court erred in not sustaining (or in sustaining as the case may be) the first assignment of error to the judgment of the Common Pleas to wit, ’’-'etc. If there are any new and further matters raised by the judgment of the Superior Court itself, they should be assigned separately in their due order.</p> <p>3. An assignment merely specifying error in affirming the judgment of the court of common pleas, without more, and assignments merely alleging error by the court below, and not by the Superior Court, are not in the prescribed form.</p>

<p>Appeal, No. 332, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,202, making absolute rule to strike off judgment in case of Commonwealth, at the instance of The Wilkes-Barre Law and Library Association, v. James Massi and E. E. Wagner.</p> <p>Rule to strike off judgment entered upon a warrant of attorney and a bail bond. Before Lynch, J.</p> <p>The facts are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to strike off judgment.</p>

<p>Evidence — Written instrument — Material alteration — Addition of name of witness.</p> <p>1. The addition of the name of a witness to the signatures of a paper, after its execution, without the knowledge or consent of the obligors, is a material alteration, which renders the paper inadmissible in evidence.</p> <p>2. An altered instrument is so far vitiated that no recovery can be had on its original or altered terms. It cannot be considered as void for the unauthorized change and valid in other respects, but is void altogether.</p> <p>8. Any material alterations of a writing releases a party who does not consent thereto, no matter how many other parties have consented. This is so whether the alteration is fraudulent or innocent. It avoids the contract not only as to the party making it, but as to an innocent transferee, such as a bona fide assignee who was not an indorsee.</p> <p>4. Subsequent assent to a material change of a written instrument is a waiver of the right to rely upon the alteration as a defense to an action brought on the instrument; but a ratification by one of several who are parties to the instrument as originally written binds him only, and not those who do not assent.</p> <p>5. Where the name of a witness to the signatures of a contract is added after the execution of the contract, and without the knowledge or consent of the obligors, the contract is wholly void for a material alteration, and a suit cannot be maintained upon it although a copy of the agreement is attached to the statement of claim without the attestation, and the signers themselves are called to prove their own signature.</p>

<p>Appeal, No. 84, Jan. T., 1909, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1906, No. 442, on verdict for plaintiffs in case of James Corrigan et al. v. Wilkes-Barre & Wyoming Valley Traction Company.</p> <p>Trespass to recover damages for personal injuries suffered by James Corrigan, a minor, suing by his next friend and father, Patrick Corrigan.</p> <p>At the trial Betterly, a witness for defendant, was asked this question:</p> <p>“Q. Do you know what parts of the day in this valley during the winter time beginning, say, first of December and running on until the first of March, are the warmest? "</p> <p>Objected to as irrelevant and immaterial.</p> <p>The Court: Take that.</p> <p>“Q. Do you know? A. Why, yes. Q. What parts of the day during those months are the warmest? ”</p> <p>Objected to. Sustained.</p> <p>“ Q. Whether or not you know this from observation and from the records that you have kept? A. From observation. Q. What parts of the day are the warmest?"</p> <p>Objected to as irrelevant and immaterial. Sustained. Defendant’s counsel ask for an exception.</p> <p>The Court: It is well known, especially in this part of Pennsylvania, it would be almost impossible to answer that question unless a man kept an actual record. May be warm in the morning or cool that time of the year and cool at noon and at night. May be cold in the morning and warm in the middle of the day and medium in the evening.</p> <p>Defendant’s counsel: We desire to take an exception to the statement of your honor made here with reference to the general knowledge in this valley.</p> <p>The Court: Note an exception as to what the court said. [1]</p> <p>James May, sworn for plaintiffs, in rebuttal.</p> <p>Direct examination.</p> <p>“Q. How long have you known Mrs. Corrigan? A. Why, about between eight and nine years. Q. Where do you live now? A. Same street, Slocum street. Q. How far from where she lives? A. Oh, now! Q. Where do you live now? A. Slocum street. Q. How far is that from where Mrs. Corrigan now lives? A. I don’t know where she lives now. Q. How long did you live a neighbor to her? A. Probably a year, about that, something like that. Q. During the time you lived neighbor to her do.you know from speech of the people right there'in the neighborhood what her reputation was for truth and veracity?”</p> <p>Objected to.</p> <p>“A. I know nothing wrong about her. Q. Do you know what her reputation was in the neighborhood for truth and veracity?”</p> <p>Defendant’s counsel objects to the question. Objection overruled, question allowed, exception noted, bill sealed for defendant. [2]</p> <p>A similar ruling was made as to the testimony of another of the plaintiffs’ witnesses. [3]</p> <p>The court charged the jury in part as follows:</p> <p>[The loss of the leg, of course, is permanent; but if he has sustained other injuries by this accident are they permanent or are they temporary, and if only temporary, how long will they last, according to the evidence in the case?] [4]</p> <p>Defendant presented these points:</p> <p>2. Conceding that the testimony of Mrs. Corrigan tends to show negligence upon the part of the defendant, it must be remembered that she is vitally interested in the verdict and her testimony in this respect being contradicted by the disinterested witnesses of the defendant, including the motorman, it is the duty of the jury to most carefully scrutinize and weigh her testimony in the light of the interest which she has in the result of this case. Answer: This point is affirmed except this “and her testimony being contradicted by the disinterested witnesses on the part of the defendant, including the motorman.” The court does not say they were disinterested or unbiased. The court says it is for you to say whether the motorman and the witnesses offered on the part of the defendant were disinterested or biased. It is your duty to believe all witnesses sworn in a case if you can conscientiously do so. If you cannot, then you must exercise your right to believe whom you will and ascertain who were biased or who were interested as the evidence may develop. [6]</p> <p>7. If the jury find that any of the plaintiffs’ witnesses told a falsehood as to any material fact narrated in their testimony, then the jury would be entitled to disregard and throw out the whole of the testimony of such witness. Answer: I decline to charge so, “if the jury find that any of the plaintiffs’ witnesses told a falsehood as to any material part.” If you believe any of plaintiffs’ witnesses consciously and intentionally lied or told a falsehood, you would be so warranted; but if one simply made a mistake as to a fact, intending to tell the truth, it would not be right. I say the same concerning defendant’s witnesses. [7]</p> <p>Verdict and judgment for James Corrigan for $6,000 and for Patrick Corrigan for $750. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4, 6, 7) above instructions and (5) answer of the trial judge to the communication of the jury.</p>

<p>Executors and administrators — Decedents’ estates — Account—Distribution — Claims against distributees — Set-off—Partnership.</p> <p>1. It is against the policy of the law to permit an executor to set off his individual claims against a distributee; and the orphans’ court has no jurisdiction to decree such set-off.</p> <p>2. Partnership affairs between an executor and a brother, both executor and brother being distributees of the estate, must be settled between them personally, and not through the account of the ejecutor.</p> <p>3. The mingling of an administration account with a distribution account is very bad practice.</p> <p>4. The duty of an executor is to collect assets and pay debts and present a clear and distinct account to the orphans’ court showing the balance on hand for distribution. It is then for the court to supervise the account and pass upon any other claims that may be presented against the estate and award distribution to those legally entitled thereto.</p>

<p>Appeal, No. 260, Jan. T., 1908, by defendants, from judgment of Superior Court, Oct. T., 1907, No. 75, affirming judgment of C. P. Clearfield Co., Sept. T., 1906, No. 115, on verdict for plaintiff in case of Agnes Prouty v. L. J. Marshall and A. A. La Rue, Terre-tenant.</p> <p>Appeal from judgment of the Superior Court. See 36 Pa. Superior Ct. 527.</p> <p>The facts appear by the opinion of the Supreme Court, and from the report in 36 Pa. Superior Ct. 527.</p> <p>Errors assigned were in affirming the judgment of the trial court.</p>

<p>Appeals, Nos. 125, 126 and 127, Jan. T., 1909, by Viola Beck et al., from decree of O. C. Huntingdon Co., dismissing exceptions to auditor’s report in Estate of Jacob Beck, deceased.</p> <p>Exceptions to report of T. W. Myton, Esq., auditor. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 79, Oct. T., 1909, by Kittanning Borough, from decree of C. P. Armstrong Co., Sept. T., 1908, No. 189, on bill in equity in case of Samuel A. S. Jessop v. The Borough of Kittanning, H. J. Hays, Burgess, P. C. Hutchinson, F. C. Mohney, James F. Foulis, W. F. Knoble, J. S. Hudson and M. H. Colwell, Members of Council, and the Kittanning Iron & Steel Manufacturing Company.</p> <p>Bill in equity for an injunction. Before Patton, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Equity — Injunction—Obstruction oj private way — Adverse possession —Boroughs.</p> <p>1. An owner of a lot of land abutting on private streets and alleys shown by a plan of lots may maintain a bill in equity against another person also a lot owner for obstructing one of the alleys, although he and his predecessors in title have obstructed and closed up another of the private alleys; and the plaintiff in such a case will not be required to remove the obstruction made by himself as a prerequisite to establish his equity against the defendant, where it appears that the obstruction had been maintained for so long a time as to give the plaintiff title by adverse possession.</p> <p>2. Occupation of land for twenty-one years adverse to a private right of way, and inconsistent with it, bars the right.</p> <p>3. Where a bill in equity is filed against a borough and a corporation to enjoin obstruction of a private right of way, and it appears that the borough did nothing more than pass an ordinance vacating the street as if it were a'public street, the corporation has no standing to complain that the borough was improperly joined as a party defendant. In such a case the joinder of the borough in no way injures the other defendant.</p>

<p>Contract — Arbitration clause — Engineer.</p> <p>1. Where a building contract provides that all differences arising under or in reference to the agreement or to its performance or in any way connected with the work shall be referred to the engineer of the owner, whose decision shall be final and binding, the engineer's decision as to all matters relating to the performance or nonperformance of the work, is binding and conclusive; and in such a case an engineer has power to award damages for the delay in completing the work.</p> <p>2. Agreements to refer disputes to arbitration will be sustained and upheld, where the power to pass upon the subject-matter in dispute is clearly given to the arbitrator by the terms of the agreement.</p> <p>3. A suit brought by the owner against the contractor and subsequently discontinued is not a waiver of the arbitration clause in the building contract; and the bringing of such a suit cannot be set up as a defense in a subsequent action against the surety of the contractor.</p> <p>4. Where under the terms of a building contract it is provided that all disputes shall be referred to an arbitrator and the arbitrator meets and notifies the contractor and the surety of the place of meeting and neither the surety nor the contractor appear, the surety in a suit on the award is not in position to raise questions which if they had any merit should have been raised by the contractor and which were clearly within the jurisdiction of the arbitrator chosen by the parties to the contract to decide all matters of difference between them connected in any way with the work.</p>

<p>Negligence — Railroads—Grade crossing — “Stop, look and listen”— Evidence — Case for jury.</p> <p>1. The rule which imposes on the traveler the duty of stopping, looking and listening before entering on a crossing, implies antecedently that there is a safe place where he may stop and by the exercise of his senses of seeing and hearing, inform himself as to the situation with respect to safety. Where there is no such place his failure to stop will not acquit him of contributory negligence if he does not stop, the rule being imperative and invariable that the traveler must stop, look and listen, no matter what the conditions, and failure to do so is negligence per se.</p> <p>2. If the proper place at which one stops admits of but a restricted view of the track, and the conditions are such as to deaden the sound or signal of an approaching train, it is the travelers’ duty in entering on the crossing to be all the more cautious,and observant; but the law defines no particular act in this connection which at his peril he must do or refrain from doing. If it be shown that he stopped at a place as good as any other for observation and looked and listened without seeing or hearing warning, whether he was negligent in entering upon the crossing would depend entirely upon the circumstances under which he made his attempt.</p> <p>3. Where a traveler with several tracks to cross enters upon the first track without violating any fixed rule, the duty continues with him to be watchful to the end. The law defines no particular act that he must do to avoid the imputation of contributory negligence, except that if any intervening space between any of the tracks offers, where with safety to himself he can have larger opportunities for seeing and hearing, he is bound there to stop, look and listen quite as much as he was bound to stop before entering upon the first track.</p> <p>4. In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence is in effect that the plaintiff at the time of the accident was driving a one-horse milk wagon, opened at the sides and in front; that at the crossing there were eleven tracks,.the view of which was obstructed by large establishments and by standing cars; that the gate at the farther end of the crossing was open, and a bell on a pole used to give warning of approaching trains was silent; that plaintiff stopped, looked and listened at a point near the tracks equal in opportunities for observation to any he had passed; that he advanced upon the first track and there again stopped, looked and listened; that he then proceeded, crossing the second, third and fourth tracks, the view of which was all obstructed by standing cars; that between the fourth and fifth tracks there was only a space of seven feet; that after passing the fourth track the view was at most only for a distance of about forty feet; and that immediately upon plaintiff’s emerging from behind box cars on the fourth track, he was struck by a train passing on the fifth track.</p>

<p>Appeal, No. 143, Jan. T., 1909, by-plaintiff, from decree of C. P. Crawford Co., Sept. T., 1906, No. 1, dismissing bill in equity in case of Conneaut Lake Ice Company v. Amos C. Quigley et al.</p> <p>Bill in equity for an injunction. Before Criswell, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned (1-56) sufficiently appear by the opinion of the Supreme Court.</p>

<p>Appeal, No. 360, Jan. T., 1907, by defendant, from decree of C. P. Warren Co., Dec. T., 1906, No. 43, on bill in equity in case of Sheffield Water Company v. Elk Tanning Company.</p> <p>Bill in equity for an injunction. Before Lindsey, P. J.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing various exceptions, findings of fact and conclusions of law.</p>

Appeal, No. 217, Jan. T., 1908, by Elizabeth M. Fuller, from decree of O. C. Fayette Co., March Term, 1907, No. 43, dismissing exceptions to adjudication in Estate of Smith Fuller, deceased. Exceptions to adjudication. Before Steel, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Error assigned was decree dismissing exceptions to adjudication.

<p>Executors and administrators — Parent and child — Adoption—Right to administer.</p> <p>An adopted child does not acquire by reason of his adoption the right to .administer upon the estate of the adopting parent.</p>

<p>Appeal, No. 26, Jan. T., 1909, by Kate Messmore, from decree of O. C. Fayette Co., March T., 1908, No. 120, dismissing appeal from register of wills in Estate of Sarah E. Teed, deceased.</p> <p>Appeal from register of wills. Before Work, P-. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing appeal from register of wills.</p>

<p>Husband and wife — Tenant by curtesy — Mines and, mining.</p> <p>While a tenant by the curtesy has no right to open and mine coal from the lands which he holds for life, where such land was unopened and unmined at the time of the death of the wife, still as the coal in place is land he has a life estate in it, although it may be valueless to him, and with this estate the remainder-man cannot interfere; but if the remainder-man and the tenant by the curtesy join in a deed and sell all their interest in the land as a whole, the money proceeds thereof take the place of the land, and the tenant by the curtesy is entitled to the whole income therefrom, during his life; and this rule applies as to the coal even where the tenant by the curtesy and the remainder-man have by one deed sold the surface and by a later deed have sold the coal in place.</p>

<p>Negligence — Master and servant — Dangerous machinery — Unguarded machinery — Act of May 2, 1905, sec. 11, P. L. 352.</p> <p>1. Where an employer of labor installs a revolving exhaust fan without any guard, in such a position that an inexperienced laborer, who has not been warned or instructed as to danger from the fan, is injured by his hand coming in contact with it in the course of his work, such employer will be responsible for the injury sustained, and nothing will relieve him except proof that the workman was himself guilty of contributory negligence in connection with the accident.</p> <p>2. Under the Act of May 2, 1905, sec. 11, P. L. 352, requiring that “machinery of every description shall be properly guarded,” it is the duty of an employer to properly guard a revolving fan placed in an inconspicuous position and the defendant is not to be relieved from the charge of negligence because the plaintiff fails to show that it was customary in factories to place guards or screens over revolving fans.</p> <p>3. Under the Act of May 2, 1905, P. L. 352, the legislative mandate is that machinery of every description shall be properly guarded, and customary disregard of this is but customary. negligence rendering everyone guilty of it responsible for the consequences resulting directly and solely from it.</p> <p>Negligence — Statutory duty — Usage.</p> <p>4. Ordinary usage which is in disregard of a statutory duty cannot be a test of negligence.</p>

<p>Appeal, No. 177, Oct. T., 1909, by defendant, from judgment of C. P. Venango Co., Aug. T., 1907, No. 72, on verdict for plaintiff in case of Joseph Pettit v. The Jamestown & Franklin Railroad Company.</p>