Volume 230 — Pennsylvania State Reports

<p>Appeal, No. 44, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 40, on verdict for plaintiff in case of Anna M. Joyce v. The Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>Error 'assigned was in refusing binding instructions for defendant.</p> <p>Plaintiff was negligent in assuming a position of open and obvious danger and such negligence was the proximate cause of her injury: Moore v. R. R. Co., 108 Pa. 349; McGeehan v. R. R. Co., 149 Pa. 188; Davidson v. Ry. Co., 171 Pa. 522; Loughrey v. R. R. Co., 201 Pa. 297; Schmidt v. R. R. Co., 149 Pa. 357; Penman v. Mc-Keesport, etc., Ry. Co., 201 Pa. 247; Gilmartin v. Transit Co., 186 Pa. 193; Warner v. Ry. Co., 141 Pa. 615.</p> <p>The case was for the jury: Bard v. Ry. Co., 199 Pa. 94; Bickel v. R. R. Co., 217 Pa. 456; Muckin-haupt v. Erie R. R. Co., 196 Pa. 213; Newman v. R. R. Co., 203 Pa. 530; Holt v. R. R. Co., 206 Pa. 356.</p>

Appeal, No. 46, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 175, on verdict for defendant in case of William Weller v. John Potts. Issue under rule to bring ejectment. Before Kennedy, P. J. The opinion of the Supreme Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Errors assigned (1 — 3) are fully stated in the opinion of the Supreme Court.

<p>Appeal, No. 48, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1909, No. 416, dismissing bill in equity in case of William Titus Hodder v. George Hogg et al.</p> <p>Bill in equity for an injunction. Before Shafer, J.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 52, Oct. T., 1910, by defendant, from decree of C. P. No. 1, Allegheny Co., June T., 1909, No. 92, on bill in equity in case of W. J. Brackston et al. v. Montooth Coal Company. Bill in equity for an injunction. Before Brown, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding injunction.

Appeal, Nos. 65 and 120, by plaintiff and defendant, from judgments of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 583, on verdict for plaintiff in case of The Grand Lodge of the Jurisdiction of Pennsylvania, Ancient Order of United Workmen v. Anna Mooney, Executrix of Ellen Mooney, deceased. Assumpsit on a bond. Before Swearingen, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,011.81.

<p>Appeal, No. 202, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 338, on verdict for plaintiff in case of Supreme Council of the Royal Arcanum v. Anna Mooney, Executrix of the Last Will and Testament of Ellen Mooney, deceased.</p> <p>Assumpsit on a bond. Before Kennedy, P. J.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 86, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 584, on verdict for plaintiff in case of George McLane v. Pittsburg Railways Company. Trespass to recover damages for personal injuries. Before Brown, P. J. The opinion of the Supreme Court states the case.

Appeal, No. 103, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1906, No. 10, for defendant non obstante vere-dicto in case of Steve Vadas v. Pittsburg, McKeesport & Youghiogheny Railroad Company. Trespass to recover damages for personal injuries. Before Davis, J. At the trial the jury returned a verdict for plaintiff for $8,300.

<p>Insurance — Fire insurance — Stipulation as to employment of mechanics — Waiver.</p> <p>1. Where a policy of fire insurance provides that the insurance shall be void if mechanics are employed upon the building for more than fifteen days at any one time without the consent of the company, the court commits no error in holding as a matter of law that the insurance is void, where the uncontradicted evidence shows that the owner entered upon the specific work of raising the building, that this was done with a well defined plan as a whole to be carried on from commencement to completion, that the work was given to different contractors, no one of whom exceeded the fifteen days’ limit, but that the work covered at least thirty days, not however consecutively, before its completion.</p> <p>2. In such a case the company will not be deemed to have waived the forfeiture by evidence that at the time the insurance was placed the owner told the secretary of the company of the proposed change, and that the latter said that it was all right, and that it ought to be done and pretty soon, and that it would increase the value of the property and decrease the hazard. Such language of the secretary, even if it were more than a mere, expression of his opinion, and held out as an inducement to secure the contract, would not bind the company where it appears that both the written application for insurance and by-laws of the company printed in the policy stipulated that the company should not be bound by any act or statement of an agent, unless inserted in the application, indorsed on the policy, or otherwise acknowledged in writing by the president or secretary of the company.</p>

<p>Appeal, No. 112, Oct. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., April T., 1909, No. 301, for defendant on demurrer to statement in case of William A. Way, Frederick Way for the use of William A. Way et al., v. W. P. Fraser.</p> <p>Demurrer to plaintiff’s statement of claim.</p> <p>Fraser, P. J., stated the facts to be as follows:</p> <p>Plaintiffs are the owners of a four-story brick warehouse at No. 439 Liberty avenue, Pittsburg. Defendant, with W. B. Loveless, contemplated engaging in the wholesale shoe business in the city of Pittsburg, and with a view to leasing the property of plaintiffs for a place of business Mr. Loveless had a conversation with William A. Way, one of the plaintiffs, acting for himself and as agent for his coplaintiffs, which conversation was followed by a letter from Mr. Loveless to Mr. Way, dated December 30, 1904, and is as follows :</p> <p>“I did not get the opportunity yesterday to call you up after I had talked with my partner. We do not feel that we care to obligate ourselves for a longer lease than three years or five at the rent offered, viz., $4,000.</p> <p>“If this offer interests you let me know sometime soon, as we want to get the matter off our hands. We have two or three locations under consideration, but I prefer your place myself.”</p> <p>The property referred to in the letter quoted being the warehouse of plaintiffs at No. 439 Liberty avenue. Following the receipt of the foregoing letter by Mr. Way he and Mr.- Loveless had a second conversation, and Mr. Way agreed to lease the warehouse to Messrs. Loveless and Fraser for three years, from April 1, 1905, at an annual rental of $4,000. Thereupon, on December 30, 1904, Mr. Way prepared and mailed to Mr. Loveless a' lease for the premises with which he inclosed a letter which reads as follows:</p> <p>“I have received your letter of the 30th inst. regarding lease of building at No. 439 Liberty Street, and confirming my conversation with you this morning, I beg to hereby accept your proposition, and inclose leases of the building to you and Mr. Fraser for three years at the rate of $4,000, the amount suggested in your letter. Kindly have one of these leases signed by yourself and Mr. Fraser and the signatures duly witnessed and return the same to me as soon as possible. We will note that in the lease I have excepted the right of Forner & Pur-viance to remove the office fixtures which belong to them, and I call your attention to this now so that there may be no misunderstanding on this point. If you desire me to take up with Messrs. Forner & Purviance for you, the matter of purchasing these office fixtures I should be glad to see what could be done. I have not told them who the new tenant is, and possibly I could make a better arrangement for you than you could make.”</p> <p>On January 13, 1905, the leases prepared by Mr. Way were returned to him by defendant unexecuted, with a letter as follows:</p> <p>“After conferring with Mr. Loveless we have decided to both take a much needed rest before going ahead with the jobbing business, and will, therefore, not be open for a lease at this time.”</p> <p>No further conversation or correspondence was had between the parties. Plaintiffs’ contention is that the conversation between Messrs. Loveless and Way, together with the letters of December 30, 1904, constitute a lease between plaintiffs and defendant for the Liberty avenue property for three years at the annual rental of $4,000, and that defendant (Mr. Loveless having since died) is indebted to plaintiffs on account of such lease in the sum of $11,142.84, with interest from April 1, 1908, being the balance due for the full term of three years after deducting the amount realized by plaintiffs from temporary tenants during the term. Attached to plaintiffs’ supplemental statement is a copy of the lease and duplicate prepared by Mr. Way and mailed to Mr. Loveless. These leases provide, inter alia, that lessees shall take the property "subject to the right of present tenants to remove office partitions and fixtures;” that the property shall be used fop no other purpose than the wholesale shoe business; that the rental shall be payable monthly in advance, and that the lessées shall make all necessary repairs at their own expense.</p> <p>To plaintiffs’ amended statement defendant demurs, alleging (1) that the statement sets forth no complete contract for leasing the premises described; (2) the conversations alleged to have taken place between Mr. Way and Mr. Loveless as to a lease for three years from April 1, 1905, could not constitute a lease or contract for the making of a lease for such period, and (3) the written leases submitted by Mr. Way contained conditions and provisions which it is not alleged defendant authorized Mr. Loveless to agree to or accept.</p> <p>Error assigned was in entering judgment for defendant on demurrer.</p> <p>As to the sufficiency of the letters to constitute a contract see: Weaver v. Wood, 9 Pa. 22®; Watson v. O’Hern, 6 Watts, 362; Moore v. Miller, 8 Pa. 272; Bussman v. Ganster, 72 Pa. 285; Kaufmann v. Liggett, 209 Pa. 87.</p> <p>In any event the contract is not required by the statute to be signed by the tenant; the signature of the lessor is sufficient to satisfy the statute. This position is established by the cases of Christy v. Brien, 14 Pa. 248; Tripp v. Bishop, 56 Pa. 424; Pittsburg Mfg. Co. v. Title & Trust Co., 207 Pa. 223.</p>

Appeal, No. 123, Oct. T., 1910, by defendant, from decree of C. P. No. 4, Allegheny Co., First Term, 1909, No. 288, on bill in equity in case of United Electric Light Company v. East Pittsburg Borough. Bill in equity for an injunction. Before Swearin-gen, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 4, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 95, on verdict for plaintiff in case of William H. "Whitehead v. Pittsburg Railways Company.</p> <p>Tresspass to recover damages for personal injuries. Before Cohen, J.</p> <p>At the trial the plaintiff testified:</p> <p>“I rose up in my seat .... I stepped my foot forward, and there was a shock right through me, and I smelt like brimstone or some other peculiar smell in my nose, and that’s all I know. " I don’t know nothing more about it, until I was taken off the car. . . . When I became conscious, I was awful sick, and I had a funny taste in my mouth, — never had a taste like that before, and I wanted to vomit.” He had a slight burn on his hand but no injury to his feet. The next day his leg broke out in pimples. He said that after the accident when he looked at the shoe that had touched the wheel cover “it was covered with kind of black stuff like tar; and I felt it, and the center just dropped out,” leaving a hole. Frank Johnson testified that he was with the plaintiff at the time of the accident, and: “I seen Mr. Whitehead raised up off the seat; .... grabbed for that brass handle .... and placed his foot out this way, on top of the cover, and he jerked back this way (indicating), and showed his eyes like.” He then went on to say that he took hold of Whitehead and asked him what was the matter, but received no answer, and they then dropped back into the seat together; that when Whitehead came to his senses, he said to him, “What’s the matter Bill?” and the plaintiff replied, “I’ve got shocked, and I am hurt;” that Whitehead’s arm was straight out and his foot was on the top of the cover at the time he showed the evidences of shock. This witness said that he had worked about electricity for about six years, and that he had seen and had knowledge “about people being shocked with electricity.” Further, that he had received shocks himself. He then said: “I think his (plaintiff’s) appearance there was the way a man would act if he got shocked.” Another witness, who was a passenger on the car, testified: “Mr. Whitehead . . . . stuck out his hand to catch hold of the handle-bar with, and put his foot on the plate, and it just jerked him back as far as his arm would let him; it would out stiff; he was leaning against me at that time.”</p> <p>The masseur who treated the plaintiff said that there were some red spots on his leg, and that he had “seen about the same character of spots in cases that I have treated that were struck by lightning.” Dr. Gardner, a physician, who treated the plaintiff, described his injuries and said: “His trouble is due to receiving a shock.” This doctor admitted that he had made no special study of nervous trouble. When asked the question, “Would any shock, or the imagination that a shock had been received, act as a hypnotic suggestion, and the patient thereupon take on all the symptoms of one paralyzed? . . . .” He replied that it might, but he said that he thought the plaintiff’s condition was “the result of this shock.” Pie said that when he called upon the plaintiff a few days after the accident, he had not found any injury or burn on the foot, but that he had found a slight mark on the right hand. Dr. Purman, who had been sent to examine Whitehead by the defendant company, was called by the plaintiff. He said that the case was one of the most remarkable that he had ever seen. “If it had been a case of ordinary traumatic hysteria .... both limbs would have been injured, but here if the man received an electric current which was sufficient to paralyze one leg, it would have to travel not only up the nerve, but up the cord and go out his other hand, where his hand was placed, to make the current; he must make a circuit, you know, and the fact that nothing else was affected but one leg is the reason why I say that it was so remarkable. Now the only explanation of that was that the charge of electricity was so violent, so strong, that it not only destroyed the life of the nerve instantaneously, but coagulated the albumen in the tissues.” When asked on cross-examination, “If Mr. Whitehead had received no ... . electric shock, but imagined that he had received a shock, might not those symptoms develop?” He replied, “Oh, yes, they might, .... Anything might develop.” But he further said, that he did not regard it as probable that they would. When he was asked the question, “If it was impossible for him (the plaintiff) to have received an electric shock, what would you say then?” He replied, “The ease would be an ‘entire mystery/” and, “it would belong to those things we know nothing about.”</p> <p>This was the substance of the testimony for the plaintiff. However, one of the experts produced by the defendant testified that he was a professor of electric practice at the Carnegie Technical School, and had been for many years with the Westinghouse and another electric company. Upon an inspection of the plaintiff’s shoe, he said, “The hole looks to me like that of a hole made by an electric current.” He further said that the leather might have been burned by an electric current to the extent shown on the shoe without “necessarily” having any effect upon the nails. Joe Speller, a witness for .the defendant, testified that the car had been turned over to him after the accident, and that the night foreman had then said, “this car is charged.” No direct testimony was produced to show that the car was defective in construction, or that the electrical appliances were out of order, or that the wheel or handle was charged, or that there had been any demonstration by way of flash, or flame, or heat at the time of the accident.</p> <p>The defendant showed by its employees that the car had been examined immediately after the accident and found to be in good condition; that it was thereupon put right back into commission and has been in use ever since. A number of electrical experts testified that they had examined and tested the car and found nothing defective about the electric appliances; that in their opinion it would have been impossible for the handle grasped by the plaintiff or the cover upon which he had put his foot to have become charged, because they were insulated from everything else; and they all said that they could not conceive how it was possible for the plaintiff to have received an electrical shock in that way. These experts, excepting the one before referred to, testified that the hole in the shoe did not look like an electric burn, as such a burn would have fused the nails in the sole; and they all said that if a man had received a sufficient electric current through his body to have made such a burn it would have paralyzed a greater area, or killed outright. A number of medical doctors testified that in their opinion the plaintiff was suffering from hysterical paralysis; that this trouble could be due to an actual physical injury, or to the belief that one had suffered such an injury when in point of fact he had not. Most of these doctors said that an electric current passing through the body would have left marks on the surface, but one of them said that there was no absolute rule to that effect.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Errors assigned (1) refusal to give binding instructions for defendant; (2) refusal to enter judgment non obstante veredicto for the defendant; (3) entering judgment on the verdict for plaintiff; (4-6) instructions in the charge assuming the fact that the plaintiff had been injured by an electric shock and placing the burden upon the defendant to overcome that presumption.</p> <p>There was no case for the jury: Cline v. Pittsburg Rys. Co., 226 Pa. 586.</p> <p>Alexander v. Nanticoke Light Co., 209 Pa. 571; Whitehouse v. Rys. Co., 36 Pa. Superior Ct. 581; Lyttle v. Denny, 222 Pa. 395; Thomas v. R. R. Co., 148 Pa. 180; Herstine v. R. R. Co., 151 Pa. 244.</p>

<p>Negligence — Master and servant — Machinery—Change in construction of machine.</p> <p>1. Where an employer during the absence of an employee changes the construction of a machine and the employee on his return resumes his work without notice of the change, and while using the machine in a way which would have been attended with no risk whatever had the machine not been changed is injured, the employer is liable for the injury sustained. In such a case it is immaterial that the employee is a mature and experienced workman, or that the effect of the change was to reduce the risk of accident to the employees generally who worked upon the machine.</p> <p>Negligence — Statement of claim — Amendment.</p> <p>2. In an action of trespass to recover damages for personal injuries sustained by an employee at a machine which had been changed during his absence and without his knowledge, an amendment to the statement of claim may be allowed more than two years after the accident which does not change the negligence charged, viz., failure to give notice of the change in the machine, but merely sets forth more accurately the effect produced by the change in its relation to the accident.</p>

<p>Negligence — Master and servant — Assistance in 'performing work— Safe place to work — Assurance of employer.</p> <p>1. Where an employee asks his employer for three assistants to aid him in. doing a particular work, and such assistants are provided for the first day, but on the second day one of the assistants fails to report, and another man not being procurable in his place, the employee then adopts a suggestion of doing the work by mechanical device without a third assistant, and does so with full knowledge of the dangers and risks of the method adopted, he cannot complain that his employer was negligent in not providing him a third man.</p> <p>2. Where an employee of mature years and experience is instructed to look up some wire for a purpose intended, but no instructions are given him as to the kind of wire to be selected, nor as to the place where such wire might be found, and he selects certain wire and asks the opinion of his superintendent as to its strength for the use intended but also tests the wire himself and exercises his own judgment, and subsequently the employee is injured in using the wire, and it is not certain whether the wire broke, or pulled loose from defective splicing, the employee cannot recover from his employer for the injuries sustained.</p> <p>3. An assurance given by an employer or his representative to an employee of the good condition of an appliance will not be a bar to a defense upon the ground of the assumption of risk when it is shown that the risk was known and comprehended by the employee, who was a mature man experienced in the kind of work he was doing.</p> <p>Practice, C. P. — Motion for nonsuit — Evidence.</p> <p>4. Where a motion for a nonsuit is made after the plaintiff rests, and before the motion is disposed of the defendant announces that he will offer no evidence, and the plaintiff then, with the permission of the court, offers the testimony of another witness as in chief, and the court then rules on the motion and grants a nonsuit, the plaintiff has no reason to complain on the ground of abuse of discretion.</p>

<p>Turnpike companies — Gas pipe under road — Natural gas companies— Condemnation of road — Estoppel—Equity—Corporations—Injunctions.</p> <p>1. Where a turnpike road company in consideration of gas to be furnished to itself, its successors or assigns, grants a “right of way” to a natural gas company “its successors and assigns for the purpose of laying pipes along said turnpike road” and the turnpike company subsequently assigns its rights under the contract to a street railway company, and thereafter the turnpike road is condemned and becomes a public street, the assignee of the turnpike company has a right to demand gas from the natural gas company as provided by the contract, as long as the natural gas company maintains its pipe line along the road undisturbed; and it is immaterial whether or not the turnpike company owned a fee in the road, or had power to grant a right of way beneath the surface.</p> <p>2. The taking over of a turnpike road by a county does not ipso facto terminate a right of way granted by the turnpike company to a natural gas company for gas pipes along the road.</p>

<p>Appeal, No. 31, Oct. T., 1910, by defendant, from order of C. P. No. 1, Allegheny Co., March T., 1909, No. 124, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert Lyons, receiver of the Cosmopolitan National Bank of Pittsburg, v. G. A. Benney.</p> <p>Assumpsit upon a promissory note. Before Mac-FARLANE, 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>The general rule of law is that a receiver simply takes the place of the bank and has no greater rights than the bank in attempting to collect the debts of the bank: Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482; Lincoln v. Fitch, 42 Me. 456; Republic Life Ins. Co. v. Swigert, 135 Ill. 150.</p> <p>A receiver appointed by the comptroller of the currency represents the corporation only, and not the creditors: Scott v. Armstrong, 146 U. S. 499; Hatch v. Johnson Loan & Trust Co., 79 Fed. Repr. 828.</p> <p>In view of the fact that the plaintiff’s bank is insolvent and the receiver is suing to recover this asset for the benefit of the creditors of the bank, the defendant, under the circumstances of this case, is estopped to set up the collateral agreement nullifying his written obligation which he executed and delivered to the bank to be accepted and used as an asset in place of a similar obligation which was objected to by the bank examiner: State Bank v. Kirk, 216 Pa. 452; Skordal v. Stanton, 89 Minn. 511; People’s Bank v. Stroud, 223 Pa. 33; Hurd v. Kelly, 78 N. Y. 588; Pauly v. O’Brien, 69 Fed. Repr. 460; Harrington v. Connor, 51 Neb. 214; Third National Bank v. Reichert, 101 Mo. App. 242; Cushing v. Perot, 175 Pa. 66; King v. Pomeroy, 121 Fed. Repr. 287; Ins. Co. v. Swigert, 135 Ill. 150.</p>

<p>Mortgage — Mortgage of leasehold — Recording—Acts of April %7, 1855, P. L. 868, April 8, 1868, P. L. 57, and May IS, 1876, P. L. 160.</p> <p>1. The authority to mortgage a leasehold estate in Pennsylvania is purely of statutory origin, and the statutes giving such authority, being in derogation of the common law, must be strictly construed and their requirements strictly complied with.</p> <p>2. Under the acts authorizing the mortgage of a leasehold the pledge is of the lease together with the buildings, fixtures and machinery belonging to the lessee and appurtenant to such lease; and the term of the lease measures the duration of the lien. The recording of the mortgage and lease is absolutely necessary to give validity to the lien.</p> <p>3. Where a lease and a mortgage of the lease are duly recorded and both mortgage and lease by their express terms expire on a date named, and the lease is extended after the expiration of the original term, but the extension of the lease is not recorded, the lien of the mortgage is not extended, but is lost on the date when the lease had expired by its terms; and this applies not only to the mortgage on the leasehold estate, but also to the lien upon the buildings and machinery belonging to the lessee.</p>

<p>Appeal, No. 84, Oct. T., 1910, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1909, No. 1,006, discharging rule for judgment for want of a sufficient affidavit of defense in case of William L. Sloan v. Adolph Klein.</p> <p>Assumpsit to recover the amount of a mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>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>The act of 1878 does not pretend to limit actions based upon agreements in writing, or express words in the conveyance to “assume and agree to pay” incumbrances, and hence does not apply to the case at bar: Campbell v. Shrum, 3 Watts, 60; Woodward’s App., 38 Pa. 322; Crooks v. Douglass, 56 Pa. 51; Blood,v. Crew Levick Co., 171 Pa. 328; Blood v. Crew Levick Co., 177 Pa. 606; Merriman v. Moore, 90 Pa. 78.</p> <p>The title of the act is in violation of art. Ill, sec. 3 of the constitution of Pennsylvania: Hoff’s App., 24 Pa. 200; Cook v. Berry, 193 Pa. 377; Mount Joy Borough v. Lancaster, etc., Co., 182 Pa. 581; Com. v. Samuels, 163 Pa. 283; Road in Phoenixville, 109 Pa. 44; Com. v. Hazen, 207 Pa. 52; Stegmaier v. Jones, 203 Pa. 47; Dailey v. Potter, 203 Pa. 593; Union Passenger Rys. Co.’s App., 81* Pa. 91.</p> <p>cited: Com. v. Jones, 4 Pa. Superior Ct. 362; Fredericks v. Canal Co., 109 Pa. 50; Com. v. Ry. Co., 219 Pa. 11; Allegheny County Home’s App., 77 Pa. 77; Gilbert’s Est., 227 Pa. 648; Powell v. Com., 114 Pa. 265; Com. v. Hazen, 20 Pa. Superior Ct. 487.</p>

<p>Argued Oct. 25, 1910. Appeal, No. 126, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., March T., 1906, No. 677, for defendant non obstante veredicto in case of Thomas H. Pollock v. Standard Steel Car Company. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.</p> <p>Assumpsit to recover compensation for negotiating a sale of cars. Before Macfarlane, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict for plaintiff for $5,933. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p> <p>The question of the existence or nonexistence of the agency of Woods, was a question of fact for the jury: Lamb v. Irwin, 69 Pa. 436.</p> <p>Where a person is employed, by one assuming to act in behalf of a corporation, to render services for it, and he renders such services with the knowledge of and without objection on the part of its officers, the corporation will be held to have ratified the employment, and will be bound to pay for the services: Mesick v. United Collieries Co., 15 Pa. Superior Ct. 316; Zabriskie v. R. R. Co., 64 U. S. 381; Garrard v. R. R. Co., 29 Pa. 154.</p> <p>Neither an individual, nor an association, incorporated or unincorporated, can reap the fruits of an agent’s unauthorized contract, and, at the same time, repudiate the contract: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Meyerhoff v. Daniels, 173 Pa. 555; Wayne Title & Trust Co. v. Schuylkill Electric Ry. Co., 191 Pa. 90; Woj-ciechowski v. Johnkowski, 16 Pa. Superior Ct. 444.</p> <p>Woods had no authority to make the alleged contract.</p> <p>Defendant never ratified the alleged contract: Twelfth St. Market Co. v. Jackson, 102 Pa. 269; Zoebisch v. Rauch, 133 Pa. 532; Merrick Thread Co. v. Mfg. Co*, 115 Pa. 314; Moore v. Patterson, 28 Pa. 505; Wright v. Burbank, 64 Pa. 247; Samuels v. Luckenbach, 205 Pa. 428; Johnson v. Steamship Go., 5 Cal. 408.</p>

<p>Appeal, No. 128, Oct. T., 1910, by defendant', from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 373, on verdict for plaintiff in case of A. & S. Wilson Company v. D. P. Reighard.</p> <p>Assumpsit for labor and materials. Before Kennedy, P. J.</p> <p>The plaintiff’s statement of claim was as follows:</p> <p>The A. & S. Wilson Company, the plaintiff above named claims of D. P. Reighard, the defendant above named, the sum of $1,324.95, with interest from June 1, 1903, and for a statement of its cause of action says:</p> <p>A. & S. Wilson Company, the plaintiff above named, is a corporation organized and existing under and by virtue of the laws of the commonwealth of Pennsylvania, and has its principal office and place of business in the city of Pittsburg, Pennsylvania.</p> <p>That at the instance and request of the defendant, the plaintiff, on or about June 1, 1903, furnished the materials and performed the labor specified in exhibit “A” hereto attached and made a part hereof. That the aforesaid exhibit is a true and correct copy of the account of the plaintiff with the defendant as taken from the plaintiff’s books of original entry; that the prices charged for the said materials and labor as shown upon said exhibit “A” are fair and reasonable and were the usual, ordinary and going prices for similar labor and materials at the time said labor was done and materials furnished by the plaintiff to the defendant, and that the defendant has promised to the plaintiff to pay the same.</p> <p>That at the instance and request of the defendant the plaintiff did, on or about June 1, 1903, perform other work and furnish other materials for the defendant, all of which are shown on exhibit “B” hereto attached and made a part hereof. That the prices charged in said exhibit “B” are fair and reasonable, and at the time said materials were furnished and labor done were the usual, ordinary and going prices for similar work and materials, and that the defendant promised to pay the same. That the defendant has paid to the plaintiff the sums of money at the time and in the amounts shown in exhibit “C” hereto attached and made a part hereof, but defendant is not entitled to any other credits and has not made any other payments.</p> <p>That the defendant, by his agent and architect, has accepted the work so done and materials so furnished by the plaintiff, and has agreed and acknowledged to the plaintiff that the prices set forth on exhibits “A” and “B” are fair and reasonable prices, and that the defendant owes the sum to the plaintiff.</p> <p>That the defendant is justly and truly indebted to the plaintiff in the sum of $1,324.95, with interest thereon from June 1, 1903, which amount the defendant has neglected and refused and still does refuse to pay, although payment has often been demanded by the plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,838.36. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p> <p>An examination of the proofs offered by plaintiff and the rulings of the court will show that plaintiff attempted to recover not only upon a quantum meruit, but upon an express parol contract that it was to furnish certain material and labor in the doing of certain work for defendant at cost plus ten per cent.</p> <p>We submit that since the passage of the procedure act of 1887 this is not permissible: Clark v. Lindsey, 7 Pa. Superior Ct. 43; Hale v. Hale, 32 Pa. Superior Ct. 37; Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508.</p> <p>This statement of claim was clearly sufficient under the procedure act of 1887: Bridgeman Bros. Co. v. Swing, 205 Pa. 479; Steelton Planing Mills Co. v. Kunkel, 20 Pa. Superior Ct. 72; Marshall v. Curry, 23 Pa. Superior Ct. 143; Kamber v. Becker, 27 Pa. Superior Ct. 266.</p> <p>The procedure act of 1887 being intended to diminish, not to increase, the technicality of our rules of pleading, plainly we are entitled to have our statement of claim construed as liberally as it would have been construed before the passage of that act'. The legislature did not intend to abolish all the well settled principles of pleading which were in force up to 1887: Kelly v. Foster, 2 Binney, 4; Miles v. Moodie, 3 S. & R. 211; Harris v. Ligget, 1 W. & S. 301; Eckel v. Murphéy, 15 Pa. 488.</p>

<p>Appeal, No. 129, Oct. T., 1910,' by Annie M. Graeser, now Annie M. Watkins, Adminis-tratrix, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 100, dismissing exceptions to adjudication in Estate of Philip Graeser, deceased.</p> <p>Exceptions to adjudication.</p> <p>Miller, J., stated the facts to be as follows:</p> <p>Philip Graeser died October 14, 1908; he owned and conducted a licensed hotel or saloon at No. 124 Wabash avenue, in the city of Pittsburg; he bought the land and buildings, license, good will and stock from the former owner who had been a licensed vender there for twenty-eight years, in July, 1907,- for about $17,000, of which the license, fixtures, stock and third-floor furnishment, exclusive of the real estate, was valued at $8,600; the daily receipts of the bar at that time averaged $50.00.</p> <p>Following Graeser’s death, his widow, the accountant, had the license duly transferred to herself individually; she took, possession of the stock of liquors and fixtures and continued to operate and conduct the place as her husband had done in his lifetime. In March, 1909, she applied for and was' granted a new license, paying the fee of $1,000 from the funds of this estate. Later she remarried, and removed from the premises, but owns and conducts the same as in the former manner under some delegated management. She asserts that she holds the premises, license, good will, etc., now and has continued to hold them as trustee for Graeser’s creditors.</p> <p>In the inventory filed by her as administratrix, the stock, license and bar fixtures are valued at $1,115.15, with which she charges herself in the present account. The decedent’s debts as proven exceed $10,000, consisting largely of unpaid liquor accounts. In August, 1909, she was offered $8,500 for the place, exclusive of the real estate, including the license, stock, good will and fixtures, which she accepted, but for some reason the transfer was refused by the quarter sessions court. The daily receipts have been from $20.00 to $35.00; there is testimony estimating the value of this good will and license of the place at from $3,000 to $4,000, assuming the transferee should retain possession as a licensed vender of liquors.</p> <p>The court surcharged the accountant with $5,384.85.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Mueller’s Est., 190 Pa. 601.</p>

<p>Corporations — Water companies — Boroughs — Contract—Conditional contract.</p> <p>1. Where a water company, in pursuance of the power conferred upon it by the legislature and without any inducement by the authorities of 'a borough, enters upon the borough’s streets and proceeds to furnish water generally to the public, and subsequently the borough enters mto a-qontract with the company by which the latter agrees to furnish water for municipal purposes, and agrees, as a consideration for the privilege of supplying such water, not to charge the inhabitants of the borough any excess over the rates it had theretofore been charging, such a contract does not preclude the borough from subsequently furnishing its own supply of water for its inhabitants.</p> <p>2. Ordinarily it is to be assumed when a contract expresses distinctly the common purpose of the parties that it expresses the whole purpose. The proper rule in such case would refer whatever stipulations the contract contains to the purpose of the contract as defined, and construe it accordingly.</p>

<p>Appeal, No. 50, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1905, No. 826, on verdict for plaintiff in case of F. J. Osterling v. Reese Carpenter.</p> <p>Assumpsit on a contract. Before Brown, P. J.</p> <p>The opinion of the Supreme Court states the. case.</p> <p>Verdict and judgment for plaintiff for $3,937. Defendant appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Trusts and trustees — Trust ex maleficio.</p> <p>Where a bank holds as collateral for a loan the stock of a corporation, and also the guarantee of the president of the corporation, the loan being to another party, and the guarantor submits to the bank, at its request, a statement of the financial condition of Ms company, in wMch he neglects to include an indebtedness to himself which is afterwards paid, and the bank makes no extension or additional loan on the strength of the statement, and thereafter the guarantor dies, the bank cannot claim that the decedent’s administrator held any portion of the money paid to it on account of his indebtedness as a trustee ex maleficio for the bank.</p>

Appeal, No. 138, Oct. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 765, for defendant non obstante vere-dicto in case of Fidelity Title & Trust Company of Pitts-burg, Administrator of Estate of Mary J. Wilson, deceased, and Flora J. Kenny v. West Side Belt Railroad Company. Assumpsit for purchase money of land. Before Sha-fer, J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 139, Oct. T., 1910, by Noah Coles, from decree of C. P. No. 1, Allegheny Co., March T., 1909, No. 732, declaring a woman a feme sole trader In re Petition of Josephine A. Coles.</p> <p>Petition to declare a woman a feme sole trader.</p> <p>The petition was as follows:</p> <p>The petition of Josephine A. Coles respectfully represents :</p> <p>That she is the wife of Noah Coles, to whom she was married on October 22, 1903, and that she resides at and owns real estate at No. 5640 Rural avenue in the city of Pittsburg, Allegheny county, Pennsylvania, and also owns other real estate in said city:</p> <p>Petitioner avers that her husband, the said Noah Coles, deserted your petitioner on or about January 19, 1908, and since said time petitioner has never seen or heard from said Noah Coles, and the said Noah Coles since said date has neglected to provide for your petitioner, his wife.</p> <p>Wherefore your petitioner prays that your honorable court will make a decree and grant her a certificate that she shall have all the rights and privileges seemed to a feme sole trader as provided by the Act of assembly of May 4, 1855, P. L. 430.</p> <p>Noah Coles, petitioner’s husband, filed an answer denying the desertion, and supported this denial by his testimony at the hearing.</p> <p>The court granted the petition.</p> <p>Error assigned was order granting the petition.</p> <p>The court erred in taking jurisdiction of said matter because, under said petition, the court was without jurisdiction to make said order: Cleaver v. Scheetz, 70 Pa. 496.</p> <p>Josephine A. Coles was not a competent witness in this case: Cañóle v. Allen, 222 Pa. 156.</p> <p>The court erred in finding from the testimony given that Noáh Coles had willfully and maliciously deserted his said wife, Josephine A. Coles, and had willfully refused and neglected to support her: Weiler v. Greiner, 34 Legal Int. 13; King v. Thompson, 87 Pa. 365.</p>

<p>Appeal, No. 140, Oct. T., 1910, by defendants, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 819, on verdict for plaintiff in case of E. S. Morgan v. P. T. Gamble and Emma M. Gamble.</p> <p>Sci. fa. sur mechanic’s claim. Before Evans, J.</p> <p>At the trial a witness for plaintiff was asked this question:</p> <p>“Q. How many lands of gas are there in the Borough of Avalon?”</p> <p>Mr. Stevenson: Objected to as entirely incompetent and irrelevant. The contract called for two lines. It makes no difference how many kinds of gas.</p> <p>Mr. Miller: If there was only one kind of gas, there was only necessity for one set of pipes.</p> <p>The Court: I don’t think that is material, however, I will hear the testimony.</p> <p>Objection overruled.</p> <p>Exception allowed and bill sealed. [2]</p> <p>“A. Just one gas, that is the natural only.”</p> <p>Mr. Miller: “Q. Is there any other gas there at the present date? A. No, sir. Q. For which gas did you put the pipes in? A. For the natural. Q. And how far had the general work on the house progressed when you put those gas pipes in? A. Well, just to a point where we had to put it before the floors were laid. Q. Had all the plastering and lathing been done? A. No plastering done at that time. Q. When did you put in the water pipes? A. At the same time — at the same time.”</p> <p>The Court: Well, would there be any reason why that house could not be piped for the other gas after it was completed?</p> <p>“A. Yes, sir, the floors would have to be lifted. Q. Well, could it be done? A. Yes, sir, it .could be done.”</p> <p>Mr. Miller: “Q. What would it cost to do that? A. Well, now I have not figured that at all. Q. What could you see with reference to the quality of the chimney?”</p> <p>Mr. Stevenson: He admits there is no flue lining there. I renew my objection. What it would cost to put it in is immaterial and irrelevant.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for the defendant requests an exception.</p> <p>Exception allowed and bill sealed. [3]</p> <p>Mr. Miller: “Q. As far as you could see? A. As far as I could see the chimneys are good chimneys. Q. Could flue linings be put in? There are only two chimneys. Could flue linings be put in those chimneys now? A. Well, the straight ones could. Q. The straight flues? A. Yes, sir. Q. Well, are they straight or are they not straight? A. I didn’t examine them. I wasn’t that close.”</p> <p>The defendant made the following offers:</p> <p>“Q. What, if anything, was said or agreed upon between you and Mr. Morgan as to the dimensions to be followed in building this frame house? A. The frame house was to be put — ”</p> <p>Mr. Miller: I object to this as incompetent, irrelevant and immaterial. It is in the written contract.</p> <p>The Court: What is the purpose of this testimony?</p> <p>Mr. Stevenson: I propose to show by the witness on the stand Mr. Morgan would not have gotten this contract unless he agreed to make a complete job of it, and that included the running of the water pipes and the sewer out to the street, and that it was expressly agreed that the dimensions to be followed for this frame house were to be the outside dimensions.</p> <p>The Court: I sustain this objection.</p> <p>Mr. Miller: Objected to as incompetent and irrelevant as attempting to vary a written contract.</p> <p>Objection sustained.</p> <p>To which ruling of court counsel for defendant requests an exception.</p> <p>Exception allowed and bill sealed. [4]</p> <p>"Q. What, if anything, was said, at the time, before the time the contract was given in regard to an architect?”</p> <p>Objected to.</p> <p>Objection sustained.</p> <p>To which ruling of court counsel for defendant requests an exception.</p> <p>Exception allowed and bill sealed. [5]</p> <p>Mr. Stevenson: This contract states that it be done at the direction of Mrs. Gamble and there has been testimony here as to her being down there, and I propose to show that at the time and before the contract was signed Mrs. Gamble proposed to get an architect and that Mr. Morgan said to her, "It is not necessary.”</p> <p>Objected to as incompetent, irrelevant and immaterial.</p> <p>Mr. Stevenson (to Charles W. Klicker): “Q. What would it cost to-day to put in a five-eighths-inch extra heavy lead pipe and run it under the ground to the point indicated on the plan as compared with the manner in which it has been put in, to-day? ”</p> <p>Mr. Miller: I object to that because this pipe is at present in use and the owners could have changed it.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendants request an exception.</p> <p>Exception allowed and bill sealed. [6]</p> <p>Mr. Stevenson: “Q. Did you make any examination as to the cost of putting in the new line of gas pipe, or just the plumbing? A. Yes, sir, I did.”</p> <p>The Court: I told you yesterday that their measure of damages was the difference between the value of the pipe and the value of the lead pipe as called for by the specifications and not what it would cost to take it up and put in the other.</p> <p>Mr. Stevenson: If the court please to make that the measure of damages there is no use taking up time proving it.</p> <p>The Court: I told you that, and I give you an exception. [7]</p> <p>Mr. Stevenson: I offer in evidence the record of a lien filed against Emma M. Gamble at No. 46, October Term, 1906; sci. fa. issued to No. 425, July Term, 1907; amount of claim, $34.50, with interest from March 31, 1906; costs taxed to date $10.12.</p> <p>Mr. Miller: Objected to, as it has nothing to do with this case.</p> <p>Mr. Stevenson: It is a lien filed by a subcontractor, and the contract provides that if the defendants have notice of any lien they are obliged to deduct it from the contract price.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendants request an exception.</p> <p>Exception allowed and bill sealed. [8]</p> <p>Mr. Stevenson: I offer in evidence the amended affidavit of claim in this case, and the plaintiff’s reply to specifications to set off, for the purpose of showing that the plaintiff, Morgan, after our affidavit of defense was filed, denies or sets up no alteration or change in the contract whatever.</p> <p>Objected to.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendants request an exception.</p> <p>Exception allowed and bill sealed. [9]</p> <p>A witness for the plaintiff was asked the following questions:</p> <p>“Q. You did the tin painting in this house? A. Yes, sir. Q. What sort of paint did you use? A. Princess’s Metallic paint. Q. That is not an Acme Anti-Rust paint. A. No, sir. Q. How does the quality of the paint you used compare with the paint known as Acme Anti-Rust paint?”</p> <p>Mr. Stevenson: I object to the testimony, for the reason that the contract calls for Acme Anti-Rust paint and no reason has been shown why it was not put on.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for defendants requests an exception.</p> <p>Exception allowed and bill sealed. [10]</p> <p>Verdict and judgment for plaintiff for $3,238.40. Defendants appealed.</p> <p>Errors assigned were (1) allowance of amended statement of claim; (2-10) rulings on evidence, quoting the bill of exceptions; (11-20) various instructions.</p> <p>This amendment changed the issue and was in plain violation of sec. 51, Act of June 4, 1901, P. L. 431.</p> <p>It has been repeatedly held that the doctrine of substantial performance covers defects or omissions only if slight or unintentional: Hayward v. Leonard, 24 Mass. 180; Anderson v. Petereit, 93 N. Y. Sup. Ct. 600; Liggett v. Smith, 3 Watts, 331; Wilhelm v. Caul, 2 W. & S. 26; Chambers v. Jaynes, 4 Pa. 39; Danville Bridge Co. v. Pomroy, 15 Pa. 151; Sticker v. Overpeck, 127 Pa. 446; Gallagher v. Sharpless, 134 Pa. 134; Phila. v. Pemberton, 208 Pa. 214; Zimmermann v. Jourgensen, 77 N. Y. Sup. Ct. 222; Woodward v. Fuller, 80 N. Y. 312.</p> <p>While work done under a Contract which stipulates that it is to be satisfactory to one of the parties cannot be rejected from mere caprice, still a bona fide objection is a good defense to an action thereon, and it is not sufficient to show that such party ought to have been satisfied: Singerly v. Thayer, 108 Pa. 291; Krum v. Mersher, 116 Pa. 17; Seeley v. Welles, 120 Pa. 69; Sidney School Fur. Co. v. School Disk, 130 Pa. 76; Stutz v. Coal & Coke Co., 131 Pa. 267; Howard v. Smedley, 140 Pa. 81; Kennedy v. Poor, 151 Pa. 472; Delahunty Dyeing Machine Co. v. Knitting Mills, 19 Pa. Superior Ct. 501; Meacham v. Gardner, 27 Pa. Superior Ct. 296; McNally v. Jenkinson, 35 Pa. Superior Ct. 288.</p> <p>cited on the question of substantial performance: Liggett v. Smith, 3 Watts, 331.</p>

Appeals, Nos. 142 and 143, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Third T., 1910, No. 196, dismissing bill in equity and sustaining cross bill in case of Pittsburg for use of the Borough of Sheraden v. The First National Bank of Sheraden and A. R. Albaugh, William J. Sher-aden and Franklin P. lams.

<p>Street railways — Municipalities—Operation of leased cars.</p> <p>1. Where a street railway company has the franchise to operate its railway on the streets of a municipality, it may operate not only its own cars, but also the cars which are the property of a company which it has leased. In such a case the cars of the lessor company are for all practical purposes the cars of the lessee company when they are operated over the tracks of the latter company.</p> <p>Equity — Equity practice — Amendment.</p> <p>2. A court of equity will not permit a,n amended bill to be filed five months after a final decree has been entered dismissing the original bill.</p>

Appeal, No. 147, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 360, for defendant non obstante veredicto in case of Andrew Hopkins v. Anthony Ret-tinger. Ejectment for land in the city of Pittsburg. Before Carnahan, J. The facts are stated in the opinion of the Supreme Court. At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.

Appeal, No. 155, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1909, No. 215, dismissing bill in equity in case of William H. Woods v. the Pittsburg Coal Company of Pennsylvania, and the United Coal Company. Bill in equity for an injunction to restrain mining operations.

<p>Appeals, Nos. 158 and 159, Oct. T., 1910, by Otillia M. Johns and Thomas F. Johns, from decree of O. C. Allegheny Co., Nov. T., 1909, No. 237, allowing order of sale of real estate in Estate of George Henry Hauler, Sr., deceased.</p> <p>Petition for order to sell real estate. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was decree directing the sale of real estate.</p> <p>The will itself, without any extrinsic evidence explaining it, clearly gives the land in dispute to Otillia M. Johns: Kelly’s Est., 8 Pa. Dist. Rep. 51; Thewlis v. Fen-ton, 224 Pa. 25; Ferry’s App., 102 Pa. 207.</p> <p>The extrinsic evidence admitted in this case strengthens the above construction, and establishes the fact that the description contained in the ninth paragraph of the will, devising land on Terrace street to Otillia M. Johns, includes the land in dispute: Brendlinger v. Brendlinger, 26 Pa. 131; Hopkins v. Grimes, 14 Iowa, 73.</p> <p>The construction of this will contended for by appellants is in accord with several decisions of this court: Graham v. Heidrick, 204 Pa. 238; Thewlis v. Fenton, 224 Pa. 25; Metzger’s Est., 222 Pa. 276.</p> <p>The extrinsic evidence in this case is sufficient to raise a latent ambiguity: Ellmaker v. Ellmaker, 4 Watts, 89; Brownfield v. Brownfield, 12 Pa. 136; Miller’s Est., 26 Pa. Superior Ct. 443.</p> <p>There was no jurisdiction of the orphans’ court to order the sale: Cutler’s Est., 225 Pa. 167; Paxson’s Est., 225 Pa. 204.</p>

<p>Appeal, No. 167, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 626, dismissing bill in equity in case of Luella Eisler v. Samuel S. Marshall et al.</p> <p>Bill in equity for specific performance. Before Fra-zer, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 187, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1906, No. 136, on verdict for plaintiff in case of Johanna Stoiber v. Independent Brewing Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ford, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $8,170. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant and in refusing judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 169, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1906, No. 108, on verdict for plaintiff in case of James P. Brennan v. Pittsburg & Connellsville Railroad Company.</p> <p>Appeal from award of viewers. Before Ford, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $53,000 upon which judgment was entered.</p> <p>The court refused a new trial, Ford, J., filing the following opinion:</p> <p>This is a proceeding to assess the value of certain lots or pieces of ground situate on Halket street in the first ward of the borough of Braddock, taken and appropriated by the defendant company under the right of eminent domain for the purpose of straightening, widening, enlarging and otherwise improving its line of railroad.</p> <p>In October, 1905, and for some time prior thereto, the plaintiff, James P. Brennan, was the owner of three separate and distinct lots or pieces of ground, being lot No. 14, the northerly part of lot No. 16, and lots Nos. 18 and 19 in John Robinson’s plan of the subdivision of section 25 in J. W. Buchanan’s plan of Braddock field.</p> <p>Lot No. 14 was in width forty feet on Halket street and extended in depth about 133 feet to an alley twenty feet wide, known as “Wood Alley;” the northerly part of lot No. 16 was distant about fifty-six feet south of lot No. 14, had a width of forty feet fronting on the northeasterly side of Halket street and extended in depth about 133 feet to Wood alley; lots Nos. 18 and 19 are contiguous and situate at the corner of Halket and Thirteenth streets, together having a width of 106.88 feet on Halket street and extending to Wood alley. Lots Nos. 18 and 19 are situate about forty feet south of lot No. 16.</p> <p>The part taken and appropriated by the defendant company was the westerly half, or less than half, about sixty-two to sixty-three feet of each of the three parcels of ground, together with the right, title and interest of James P. Brennan in that portion of Halket and Thirteenth streets abutting thereon, and subject to the easement of the public in said streets.</p> <p>Halket street was about fifty feet wide,, having upon it the two main lines of the defendant company’s railroad. The tracks extended along the street in front of and about fifteen feet from the west line of the Brennan properties. Between the Brennan properties and the railroad there was a paved side or foot walk in width about ten or twelve feet. Since 1905, the company has constructed its railroad occupying the sidewalk formerly along Halket street, and also plaintiff’s land taken for that purpose.</p> <p>The verdict of the jury was for the plaintiff, and the defendant moves the court for a new trial, assigning as reasons: ...</p> <p>1. The court erred in admitting the evidence of plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, as to the fair market value of plaintiff’s property.</p> <p>2. The court erred in refusing to strike out the testimony of W. J. Holland and H. J. Learn, witnesses for the plaintiff.</p> <p>3. Dr. G. H. McGarey, a witness upon behalf of the plaintiff, after having testified, in a conversation, said, “I have just been on the stand as a witness in the Brennan case and gave some pretty strong testimony, but when it comes to testifying between an individual and a corporation, I have no conscience.”</p> <p>4. The verdict was against the law and the evidence and the charge of the court.</p> <p>The reasons assigned will be considered in order:</p> <p>1. The objections to the competency of each of the plaintiff’s witnesses, W. J. Holland, H. J. Learn, G. H. Mc-Garey, George Weil, E. M. Brackmeyer and S. C. Richards, being (a) that the witnesses did not possess such knowledge as would enable them to estimate the value of the property before and after its appropriation, and (b) their knowledge of the value of property in the vicinity of the Brennan property was of sales made and prices paid by the defendant company.</p> <p>The test of the competency of a witness called to give an opinion in respect to the value of land is, that he has knowledge of the property in question, the extent and condition of the improvements and the uses to which it may be applied, taken in connection with the general selling price of lands in the neighborhood at the time.</p> <p>The competency of a person to give an opinion under oath as an expert so that upon the preliminary examination he appears to have any pretensions to speak as such, rests in the discretion of the judge: Ardeseo Oil Co. v. Gilson, 63 Pa. 146. The value and weight of the opinion expressed being entirely for the jury: Lewis v. Water Co., 176 Pa: 230.</p> <p>In the case of Hope v. Phila. & Western R. R. Co., 211 Pa. 401, it was held:</p> <p>“To render a witness competent .... he should have such knowledge as would enable him to estimate the market value of the entire tract of land both before and after the construction of the road through it. Adhering to this rule of competency, the witness should disclose some knowledge of the location of the land, its area, quality and productiveness, the extent and condition of the improvements, the manner in which the road passes through the premises and the value of other lands in the neighborhood at or about the time of the appropriation of the land by the railroad company. If the witness has some familiarity with these facts, his testimony must go to the jury. The extent of his knowledge affects the weight of his testimony and not his competency.”</p> <p>Of the witnesses whose competency is questioned, W. J. Holland was a resident and had resided in the borough of Braddock “all his life.” He is and has been engaged in the real estate and insurance business upon his own account for seven years, and theretofore as an employee of his father and uncle; G. H. McGarey is a physician, is and has been a resident of Edgewood for one year, and prior thereto had resided in the borough of Braddock, where he had practiced his profession for seventeen years and upwards; H. J. Learn is a merchant engaged in the dress goods business, his place of business and residence is in the borough of Braddock, where he had resided for sixteen years and upwards; George Weil Is an attorney at law, practicing at the Allegheny county bar, and is and for a number of years has been a resident of Braddock. He was largely interested in the placing of loans secured by mortgages upon real estate in the borough. In part his duty was to examine and appraise properties offered as security, necessitating inquiry respecting the prices at which property was held and sold. Edward M. Brackmeyer was a resident of and had resided in Braddock for thirty-seven years. He is engaged in the steamship, foreign exchange, insurance and brokerage business. S. C. Richards is an architect and had resided in Braddock for sixteen years.</p> <p>Each of the witnesses testified that prior to October, 1905, they knew the Brennan lots or pieces of ground, were familiar with the area of the lots, the improvements thereon, and how affected by the construction of defendant’s road, had knowledge of the market value of properties and knew of sales and prices of real estate in that vicinity.</p> <p>It is urged by counsel for defendant that the sales and prices testified to by certain of the witnesses were sales made to and prices paid by the defendant company.</p> <p>In Pittsburg & Lake Erie R. R. Co. v. Robinson, 95 Pa. 426, cited and approved in Hope v. Phila. & Western R. R. Co., 211 Pa. 401, Gordan, J., delivering the opinion of the court, said:</p> <p>“Though his (witness’s) knowledge of the value of lands in that neighborhood may have rested solely upon a few purchases made by the railroad company, and from no other purchases in the real estate market, yet he had some knowledge upon which to base an opinion and the value of that was for the jury.”</p> <p>We are of the opinion that these witnesses were competent to estimate the value of the Brennan lots and to express an opinion as to the difference between the value of the lots before and the value after and as affected by the appropriation of a part of the lots by the railroad company.</p> <p>2. Counsel for defendant moved to strike out the testimony of W. J. Holland for the reason that he had not shown sufficient knowledge of sales or of prices paid or asked for the property in the neighborhood of and similar to the Brennan property, further, that he bases his opinion on sales made to the railroad company; and of H. J. Learn for the reason that his opinion is based on the peculiarity of the location of the land, the uses to which it could be put, and sales of property located in other parts of the borough having no bearing on the market value of the Brennan property.</p> <p>Mr. Holland had knowledge of sales made about the time of the appropriation and prices paid on property in the vicinity of the Brennan property, and testified that he knew of the sales of the McCredy property, the P. J. Brennan, the Petty, the Corado, the James McCune, the John Lowe, the Catherine Lowe, the McClelland, the Costello and other properties. Mr. Learn was the owner of real estate, and in 1905, had purchased property in the borough. He knew of the asking and selling prices of property in the vicinity of the Brennan property, and referring to the time of appropriation, testified, “I am familiar with some selling prices and have heard of some asking prices. Thát made me familiar with them.” He knew of the Worthington and the Robinson sales, both to the railroad company, and the prices at which other properties were held for sale.</p> <p>Mr. Holland and Mr. Learn based their opinion upon their knowledge of values, the size and location of the properties, the then use and the uses to which the properties were adapted. The motion to strike out was properly refused.</p> <p>3. It appears from the testimony taken and filed in support of the rule for a new trial that on the day of the trial, after testifying, Dr. G. H. McGarey met George C. Watt in the corridor or hall of the courthouse. The trial and testimony given by Dr. McGarey was referred to and commented upon. A few days later Paul D. Remington had a conversation with Dr. McGarey in which Dr. Mc-Garey referred to his testimony. There is a conflict in the testimony taken on the rule in relation to what was said by Dr. McGarey in the conversation with Mr. Watt and with Mr. Remington. It is not necessary to determine the language nor import of the language used by the witness, Dr. McGarey.</p> <p>Evidence which merely impeaches the credibility of a witness cannot be successfully urged as the ground for a new trial.</p> <p>In the case of Com. v. Laird, 14 York, 128, Mr. Justice Stewart held that three witnesses testifying that a material witness for the commonwealth had received $10.00 for testifying was not a sufficient cause for a new trial.</p> <p>In Com. v. Yot Sing, 7 Kulp, 349, Mr. Justice Rice refused a new trial where the principal witness made affidavit that he had perjured himself on the trial, and three witnesses testified to like effect.</p> <p>In Com. v. Flanagan, 7 W. & S. 415, the defendants alleged that they were entitled to a new trial because several witnesses had since the conviction of the prisoners, either admitted that they did not testify to the facts truly, or made statements inconsistent with the evidence given on the trial, and it was held that “the rule of law is that the testimony must go to the merits of the case and not be merely for the purpose of impeaching the testimony of the witnesses. For newly discovered evidence discrediting witnesses who testified on a former trial, a new trial is never granted.”</p> <p>The statements made by Dr. McGarey to Mr. Watt and to Mr. Remington, if made in terms as by the witnesses for the defendant testified, tended to impeach his credibility and affect the weight to be given to his opinion as to values.</p> <p>4. It is contended by the defendant that the verdict of $53,000 for the plaintiff is excessive.</p> <p>The defendant company filed its bond October 21, 1905, and shortly thereafter entered upon the land condemned.</p> <p>There is a marked difference in the value of the property before and after the widening of the railroad between the estimates or opinions of the witnesses for the plaintiff and for the defendant. The highest value shortly before the appropriation, as given by a witness for the plaintiff, was $158,848; by a witness for the defendant, $34,430. The highest value immediately after and as affected by the appropriation, as given by a witness for the plaintiff, was $42,239; by a witness for the defendant, $15,851.</p> <p>It has uniformly been held that the court will not grant a new trial because the verdict is too high when the court cannot say that in no view of t-he case can it be justified. We have carefully reviewed and considered the testimony. Disregarding the estimate of Dr. McGarey, the highest estimate of the depreciation upon the part of the plaintiff is that of W. J. Holland, who testified that the depreciation was $90,172: upon the part of the defendant, the highest estimate of the depreciation was $18,591.</p> <p>The jury evidently weighed the opinions as to values of the witnesses for both the plaintiff and defendant,' and ascertained the amount of the damages from a fair consideration of all the facts and circumstances in evidence. A careful review of the testimony does not convince us that the verdict of the jury should be disturbed.</p> <p>Now, July 14, 1910, the motion for a new trial is discharged.</p> <p>Errors assigned were (1-9) various rulings on evidence,' quoting the bill of exceptions.</p> <p>cited: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Michael v. Pipe Line Co., 159 Pa. 99; Friday v. R. R. Co., 204 Pa. 405; Stevenson v. Coal Co., 201 Pa. 112; Cobb v. Boston, 112 Mass. 181; Chicago, etc., R. R. Co. v. Scott, 225 Ill. 352 (80 N. E. Repr. 404); Peoria Gaslight, etc., Co. v. Terminal Ry. Co., 146 Ill. 372 (34 N. E. Repr. 550); Henkel v. R. R. Co., 213 Pa. 485; Gorgas v. R. R. Co., 2.15 Pa. 501.</p> <p>cited: Pittsburg, etc., R. R. Co. v. Robinson, 95 Pa. 426; Hope v. R. R. Co., 211 Pa. 401; Galbraith v. Phila. Co., 2 Pa. Superior Ct. 359; Marko-witz v. R. R. Co., 216 Pa. 535.</p>

<p>Mortgage — Purchase of mortgage — Assignment—Rights of assignee.</p> <p>1. Where a person uses his own money to purchase a mortgage he may take title to it in his own name, or in the name of any one to whom he chooses to have it assigned, and either he or his assignee is entitled to whatever security the mortgage gives.</p> <p>Mortgage — Depreciation in value — Land damages — Eminent domain.</p> <p>2. Where real estate is depreciated in value by reason of the grading and widening of a street of a borough, and the owner of the property is awarded damages for the injury, but before the award is paid the property is sold in foreclosure proceedings, and owing to the injury brings only a fractional part of the mortgage debt, the owner of the mortgage may follow the fund to the extent of making good his loss by the depreciation caused by the injury.</p> <p>3. In such a case, the fact that the owner of the mortgage was interested in a dual capacity, owing to an agreement with the borough to indemnify it against all damages in excess of a stated amount, does not avail to defeat a recovery on the mortgage, the mortgagor not being a party to such agreement and having no interest in it.</p>

<p>Appeal, No. 172, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 50, on verdict for plaintiff in case of Margaret Kennedy v. City of Pittsburgh.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,250 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 180, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., First T., 1908, No. 883, on verdict for defendant in case of Margaret Ritter v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for death. Before Car-nahan, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various instructions of the court and omissions to charge.</p>

Appeal, No. 144, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 648, on verdict for plaintiff in case of Mary McLaughlin v. Edward Kelly, Jr. Trespass to recover damages for personal injuries. Before Kennedy, P. J. The facts appear in the opinion of the Supreme Court. Verdict for plaintiff for $3,750.

<p>Promissory notes — Accommodation Indorser — Notice of dishonor— Practice, C. P. — Affidavit of Defense.</p> <p>In an action on a note against an accommodation indorser where the statement simply avers that the note was not paid at maturity, due presentation and demand having been made, and that the defendant had due and timely notice of said nonpayment, and the notary’s certificate attached to the statement merely certifies that the notary exhibited the note where payable, at the proper time, and demanded payment which was refused, “the answer being no funds, whereof I duly notified the endorser,” an affidavit of defense is sufficient which contains a specific denial of oral service, an equally explicit denial that notice, of dishonor was sent in accordance with the requirements of law and a positive averment that no notice was ever received.</p>

<p>Contract — Bond—Conditions—Notice—Waiver—Principal and agent.</p> <p>1. In an action against a surety on a bond taken to insure the performance of a building contract, the defense was that the obligee, disregarding the conditions of the bond, had neglected to give the surety, notice of the contractor’s default in not finishing the building at the time specified, and had not retained the agreed percentage of the contract price. The bond was executed only seven days before the time originally agreed upon for the completion of the building, and was conditioned for one year, and there was evidence of a subsequent course of dealing showing that neither party insisted upon completion at the time specified. There was other evidence that the surety had advised the use of the retained percentage for the settlement of unpaid bills to avoid threatened liens, and that such payment was made with the knowledge and consent of an alleged agent of the company. Held, that the question of the surety’s liability was properly for the jury.</p> <p>2. Bonds are presumptively intended to secure losses sustained after and not before their execution, but such presumption may be overcome if the facts show that past as well as future defaults were intended to be covered by the bond.</p>

<p>Appeal, No. 186, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1902, No. 190, on verdict for plaintiff in case of Thomas Hoffman by his father and next friend Frank H. Hoffman v. The Consolidated Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Fobd, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $9,300 which was afterwards reduced to $5,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 154, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., August T., 1906, No. 721, on verdict for plaintiff in case of Ida B. Rosenstiel v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Evans, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The trial judge, in the course of his charge, instructed: “The employer is never liable to the employee for an injury occasioned through the negligence of a fellow employee unless the employer was negligent in keeping an incompetent man in its employ. So that it becomes important, if you come to that question, to determine whether Staley was a competent or an incompetent man. The only evidence here as to his competency would go not to the knowledge of the duties of his employment, but to his reckless manner of performing those duties. Was he such a reckless man? is the first question. Was he such a reckless man as to render him unfit to be placed in the position in which he was placed, in charge of the motive power of his car? .... The test is: Was he reasonably competent? Under the circumstances, did his recklessness go beyond the average carelessness of men in his employment? The evidence on the part of the plaintiff on .that subject is evidence of reputation. You can see probably the difficulties that present themselves to both sides on a question of this kind when you have in consideration the question of a man’s character for any purpose, and require that character to be proven from the witness stand. As I have stated, it is not the fact that he may have been negligent at one time, or twice; it is not a question of whether he has accidents happen to the car which he was operating; because then the question arises as to whether such accidents were due to his negligence or whether they were not. And so it is not absolutely determined by the question as to what a man’s reputation is; because a man may have a reputation which he does not deserve. [The question for your determination is: Was he so reckless in the discharge of his duties as to render him unfit to be kept in that position? Not, did he have such a reputation? That is not the first question here. But, has the evidence of reputation satisfied you, or can you find from the evidence of reputation, that he was in fact unfit for this position by reason of his negligent habit?] [12] If you find that in the negative, that is, if you find that the evid'ence does not justify your finding that he was of such negligent habits as to render him unfit to be placed in this position, then your verdict should be for the defendant. If, however, you find that he was unfit to be placed in the position as a motorman in charge of a car, then the next question for your consideration is: Was the fact that he was incompetent known to this company? Or, was his incompetency such — did it so manifest itself, that the company should have known it had they exercised the ordinary care which an employer is bound to exercise in the supervision of its employees? We have evidence on the part of the plaintiff of his reputation which also goes to the question as to whether his character was known to his employers or should have been known. We have evidence of one witness, I believe, that complaint had been made to the división superintendent, or possibly not a complaint, but that a statement of this man’s character had been made to a division superintendent and that statements of the fact had been made to dispatchers. [There is no evidence that any statement was made to any person who had the power to discharge Staley; but there is evidence that reports of this kind, under the rules of the company, should be made to the division superintendent. Now, in passing upon this question, if you come to that, as to whether or not Staley’s character for care was known or should have been known to his employer, you consider evidence of his reputation and the evidence of the information given to the different persons in the employ of the defendant company.] [13] If you find that he was incompetent, but that that fact was not known to his employer and by the exercise of reasonable care could not have been'known to his employer, then your verdict should be for the defendant. But if you find .... that Staley was incompetent and that his incompetency was known to his employer, then your verdict should be for the plaintiff.”</p> <p>Verdict and judgment for plaintiff for 16,000. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of defendant’s motion for judgment in its favor n. o. v. (12, 13) portions of charge as above quoting them; (3-11, 14) various rulings on evidence sufficiently appearing in the opinion of the Supreme Court.</p> <p>Under our authorities proof of reputation is good evidence only when it relates to the character of the person prior to the employment and that such evidence is not admissible when the alleged incompetency of the employee arises after his lawful employment; as to the latter, proof of actual incompetency must be made: Stasch v. Cornwall Ore Bank Co., 19 Pa. Superior Ct. 113; Frazier v. Penna. R. R. Co., 38 Pa. 104; Snodgrass v. Carnegie Steel Co., 173 Pa. 228.</p> <p>There was no notice given to the defendant: Reiser v. Penna. Co., 152 Pa. 38; Gier v. Los Angeles Consolidated Electric Ry. Co., 108 Cal. 129; Haskin v. N. Y. Cent., etc., R. R. Co., 65 Barbour, 129; Hatt v. Nay, 144 Mass. 186.</p>

<p>Bridges — Equity — Equity practice — Decree—Street railways — Compensation — Action at law — Cities—Ownership of bridges.</p> <p>1. Where a disagreement arises concerning the compensation to be paid a bridge company for the future occupancy of a bridge by a street railway company which had changed its motive power to electricity, after having, for a number of years, operated a line of horse cars across the bridge, a bill in equity, filed by the railway company asking that the bridge company be restrained from interfering with the operation of its cars and praying the court to fix the compensation to be paid, is an appropriate proceeding and equity has power to enter a decree therein fixing the compensation at a stated sum for a term of years thereafter with a provision for modification of the decree for proper cause on application of either party.</p> <p>2. Where in such case the city in which the bridge is located acquires control of the stock of the bridge company and opens the bridge to the general public and, thereupon the railway company declines to make further payments, the bridge company is entitled to maintain an action at law against the railway to recover the amount due under the terms fixed in the decree.</p> <p>Bridges — Purchase of stock by cities — Compensation for use — Street railways.</p> <p>3. The purchase of the entire stock of a bridge company by the city in which the bridge is located does not dissolve the corporation or vest in the city the title to the property of the bridge company or prevent the bridge company from collecting compensation for the use of the bridge from a trolley company under arrangements theretofore existing, although the bridge is made free to other travel.</p>

<p>Negligence — Streét railroads — Evidence—Signed statement — Discrepancies — Credibility of witness.</p> <p>1. Where in an action to recover damages for personal injuries the testimony in chief of the only witness called by plaintiff to describe the accident makes out a clear case for the jury, but on cross-examination he is confronted with a statement which he signed two days after the accident, at the instance of an employee of the defendant company, and radically inconsistent with his testimony in chief, of which statement he says “If my signature is there, it must be correct” but which he testifies without contradiction he signed without reading or knowing its contents, the credibility of the witness is for the jury, not the court, and if a verdict has been found for plaintiff it is error for the court to enter judgment for defendant non obstante veredicto.</p> <p>2. In such a case, the duty of the court is limited to calling the jury’s attention to the discrepancy between the written statement and the testimony of the witness in chief, and to properly cautioning them as to their duty in passing on his credibility.</p> <p>3. When on part of the testimony of a witness a plaintiff is plainly entitled to go to a jury, while on the other part of it he plainly is not, or when the different parts of the testimony of a witness are apparently inconsistent, leaving it uncertain just what his recollection of the facts respecting which he testifies is, it is the province of the jury to reconcile the conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.</p>

<p>Negligence — Automobiles — Pedestrians — Collisions — Witnesses — Competency — Opinion as to speed — Necessity.</p> <p>1. In an action for damages for personal injuries sustained by a pedestrian in a collision, with an automobile, nonexpert, witnesses are competent to express an opinion as to the rate of speed of the automobile, their everyday experience giving them sufficient knowledge to form an intelligent judgment on the subject.</p> <p>Evidence — Withdrawal of evidence — Trial—Practice, C. P.</p> <p>2. Where evidence is properly admitted, and subsequently on motion of the party who offered it, the evidence is stricken out, such action of the court cannot be alleged as error by the opposite party on appeal.</p>

<p>Appeal, No. 135, Oct. T., 1910, by plaintiff, from order of C. P. No. 4, Allegheny Co., Second T., 1908, No. 97, refusing to take off nonsuit in case of Salvatore Catanzaro, trading as S. Catanzaro & Company, v. Pennsylvania Railroad Company. Before</p> <p>Assumpsit for damages for injuries to freight.</p> <p>Carnahan, J., stated the case as follows:</p> <p>The. plaintiff is a fruit dealer in the city of Pittsburg, and the defendant is a corporation of the state of Pennsylvania. In December, 1906, the plaintiff purchased in the city of Boston, Massachusetts, a large quantity of Almeria grapes and lemons and arranged to have them transported by rail to the city of Pittsburg. The lines of the defendant company did not extend to Boston. It has no railroad there, but it did have an office in that city, which was in charge of a district freight solicitor, employed by defendant company. The plaintiff, in company with another man, called upon the solicitor at his office and claims that he contracted with him as an authorized agent of the Pennsylvania Railroad Company for the prompt transportation of his goods to Pittsburg in warm and suitable cars, especially adapted for the carrying of such perishable freight. The man who accompanied him was an interpreter named Di Cola, and it was through him and by him that all negotiations looking to the transportation of the goods were conducted. The conversation which took place at the office was in the English language, of which language the plaintiff had a very slight knowledge. The interpreter was a fruit broker, doing business in Boston. He had bought these goods for the plaintiff and was assisting him to arrange for their shipment to Pittsburg. He knew the freight solicitor, and it was not unusual for the broker to ship fruit from Boston over railroads to various points of the United States. The plaintiff left Boston for Pittsburg before these goods were shipped, having given instructions to the interpreter, who was his agent at least in this respect, to attend to their delivery at the cars. When the goods reached Pittsburg they were found to be damaged. The loss to the plaintiff was almost a total loss. Claiming that his goods were in perfect condition when shipped, that they were placed in cars dilapidated and unfit for the carriage of such perishable goods, that they were unnecessarily delayed on their way to destination, and that the damage was the result of the railroad company’s carelessness and negligence in these respects, he brought this suit against the Pennsylvania Railroad Company, basing it in his verbal contract with the district solicitor in Boston.</p> <p>The court directed a compulsory nonsuit.</p> <p>Error assigned was refusal to take off compulsory non-suit.</p> <p>Defendant on cross-examination of plaintiff’s witnesses will not be permitted to lead out new matter constituting his own case: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Sullivan v. Railroad Co., 175 Pa. 361; Auge v. Darlington, 185 Pa. Ill; Leedom v. Leedom, 160 Pa. 273.</p> <p>A point for binding instruction for defendant could not have been affirmed in the case at bar if these shipping receipts had been offered as part of defendant’s own case: Union R. R. & Trans. Co. v. Riegel, 73 Pa. 72; Dungan, Hood & Co. v. Phila. & Reading Ry. Co., 41 Pa. Superior Ct. 269; Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438 (28 N. E. Repr. 394); Strohn v. D. & M. Ry. Co., 21 Wis. 562; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324 (58 N. E. Repr. 44); Vuille v. Penna. R. R. Co., 42 Pa. Superior Ct. 567.</p> <p>The fact that a conversation was had through an interpreter affects the weight but not the competency of the evidence: Com. v. Vose, 157 Mass. 393 (32 N. E. Repr. 355).</p> <p>cited as to the offering in evidence of the shipping receipts: Kann v. Bennett, 223 Pa. 36; Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396.</p>

<p>Appeal, No. 189, Oct. T., 1910, by plaintiff from order of C. P. No. 4, Allegheny Co., Second T., 1908, No. Ill, refusing to take off nonsuit in case of Borough of West Homestead v. E. J. Erbeck.</p> <p>Trespass to recover damages for payments made on a municipal contract through alleged fraud and collusion. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court, upon the conclusion of plaintiff’s case, ordered judgment of nonsuit.</p> <p>Error assigned was in refusing to take off nonsuits</p> <p>The matter embraced within this controversy is not within the jurisdiction conferred by agreement upon the engineer: Drhew v. City of Altoona, 121 Pa. 401; Lauman v. Young, 31 Pa. 306; Gonder v. Railroad Co., 171 Pa. 492; Jacob v. Weisser, 207 Pa. 484; Gallagher v. Sharpless, 134 Pa. 134; Memphis, Clarksville & Louisville R. R. Co. v. Wilcox, 48 Pa. 161.</p> <p>cited: Hartupee v. Pittsburg, 131 Pa. 535; Sisk v. Garey, 27 Md. 401.</p>

Appeal, No. 206, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Third T., 1909, No. 199, on bill in equity in case of Robert A. McKean v. Riter-Conley Manufacturing Company. Bill in equity for an accounting. Swearingen, P. J., found the facts to be as follows: FINDINGS OP PACT.

Appeal, No. 204, Oct. T., 1910, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 714, refusing to take off nonsuit in case of Anthony J.. Kearns, a minor, by his father and next friend, Martin Kearns, and Martin Kearns v. Carnegie Steel Company. Trespass to recover damages for personal injuries to a minor nineteen years old. Before Davis, J. The facts appear in the opinion of the Supreme Court. Error assigned was in refusing to take off nonsuit.

<p>Husband and wife — Promissory notes — Collateral security — Separate estate of wife — Decedent’s estate.</p> <p>Where it appears as a fact that a woman was a bona fide creditor of her husband who became indebted to her for moneys or securities which she gave to him out of her separate estate, and in acknowledgment of the indebtedness received from him his promissory note secured by other promissory notes which belonged to him, no question can arise as to the woman’s right, as against creditors of her deceased husband’s estate, to receive dividends payable on these notes by the receiver of the corporation which made them.</p>

Appeal, No. 194, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 43, dismissing bill in equity in case of William E. Hartón v. William E. Hildebrand and Frank P. Howley. Bill in equity to restrain the sale of houses. Before Shafer, J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing bill.

<p>WiZZs — Devise—Conditional devise — Fee simple — Life estate.</p> <p>A devise of land to testator’s son with the condition annexed, “But if he should have no direct heirs, then during his natural life and his present wife or widow to have the use of it during her widowhood, at her death or remarriage said property to go to my heirs at law” contemplates a definite failure of issue and indicates a plain intention that there should be a fee in the son only in case he left heirs of his body.</p>

<p>Appeal, No. 208, Oct. T., 1910, by John W. Taylor, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 194, admitting will to probate in Estate of Mary L. Taylor, deceased.</p> <p>Appeal from refusal of register of wills to admit a testamentary paper to probate. Before Over, J.</p> <p>The facts were as follows:</p> <p>Mary L. Taylor died and left to survive her, among other children, John W. Taylor, the appellant, and Jennie H. Richards, the appellee. Jennie H. Richards offered to the register of Allegheny county for probate as the last will and testament of Mary L. Taylor, a testamentary paper in the handwriting of Mary L. Taylor, written upon the first and fourth pages of a piece of ordinary folded note paper. The first page of this paper reads as follows:</p> <p>“I give to my daughter Jenie H. Richards all my personal! goods everything except the presents and the small bed boster and pilloes I give to Mary Whittlinger my grand doter to Naro Richerd I give the large bed Bolster and pillows and the star quilter to my grand Doughter november the 3 1898 sined by me</p> <p>“Mary L. Taylor.</p> <p>“And my watch to Nora Richards.”</p> <p>The signature is upon the third line from the foot of the page and the clause following the signature is on the last line. At the head of the fourth (or last) page of the paper is another unsigned clause, also in the handwriting of Mary L. Taylor, which reads as follows: “I want you all to be satisfied with what I have done.” This paper was inclosed in a sealed envelope on which was written, also in the hand of Mary L. Taylor and not signed, “to Jinie H. Richards oping this when I am dead.”</p> <p>A caveat was filed by John W. Taylor against admitting the paper to probate as the will of his mother, on the ground that it was not signed at the end thereof as required by the Act of April 8, 1833, P. L. 249, and the register refused to admit the paper to probate. After-wards, Jennie H. Richards appealed from this decision of the register, and the orphans’ court, reversing his decision, admitted to probate as the will of Mary L. Taylor, so much of the writing as preceded the signature. There was no evidence aliunde the will, before either the register or the court below, to show when the words following the signature were written. Exceptions to the decree .of the orphans’ court were filed and after argument were overruled. Whereupon the contestant appealed.</p> <p>Errors assigned were in dismissing exceptions to decree.</p>

<p>Negligence — Street railways — Evidence—Rebuttal.</p> <p>In an action against a street railway company to recover damages for personal injuries, where several witnesses for the defendant, after testifying that they saw the plaintiff run towards a car and attempt to get on when it was in motion, are confronted with another person in court, and they assert he was not the man, such person may be called in rebuttal to testify that he remembered the accident, and that it was he who had rim towards the car while it was in motion.</p>

<p>Appeal, No. 150, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny County, March T., 1907, No. 690, on verdict for plaintiff in case of Sadie Connelly v. Pittsburg Railways Company.</p> <p>Trespass for personal injuries. Before Brown, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $8,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned among others was refusal to withdraw a juror.</p>

Appeal, No. 7, May T., 1910, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 443, dismissing bill in equity in case of the A. L. Roumfort Company v. John C. Delaney, chief factory inspector of Pennsylvania. Before Fell, C. J., Bill in equity for an injunction. Before Kunkel, P. J. The A. L. Roumfort Company was a corporation conducting in the city of Harrisburg a place of amusement.

<p>Appeal, No. 182, Oct. T., 1910, by S. E. Kingsley, from decree of O. C. Allegheny Co., April T., 1910, No. 129, dismissing exceptions to adjudication In re First Account of the Colonial Trust Company of Pittsburg, administrator d. b. n. c. t. a. of Estate of P. J. McNulty, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 130, Oct. T., 1910, by defendants, from judgment of C. P. Westmore-land Co., May T., 1908, No. 694, in case of James Mc-Dermott, W. F. Holtzer and C. H. Roose, supervisors of Hempfield township, v. J. J. Blank, J. S. Peters and Hempfield township.</p> <p>Taxpayers’ appeal from auditors’ settlement of township supervisors’ accounts. Before Van Swearingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The appeal to the Supreme Court was quashed on motion.</p> <p>submitted the following reasons on the motion to quash. — The appellants not having excepted to the order of the court below overruling their exceptions to the findings of fact and law acquiesced in such order and are not entitled to be heard on appeal: Southern R. R. Co. v. Moyer, 125 Pa. 506; Harris v. Mercur, 202 Pa. 313; Wingert v. Teitrick, 31 Pa. Superior Ct. 187.</p> <p>This case being an appeal from the auditors’ settlement of the township supervisors’ accounts, and as the case was not pending and undetermined when the Act of May 11, 1901, P. L. 185, was approved, no appeal lies from the decision of the court of common pleas, and this court is without jurisdiction.</p>

<p>Appeal, No. 198, Oct. T., 1910, by plaintiff, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 174, opening judgment entered d. s. b. for plaintiff in case of City of Pittsburg v. Joshua Rhodes, now W. B. Rhodes and Mary H. Rhodes, executors, et al.</p> <p>Rule to open judgment and stay execution on a surety bond. Before Shafee, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in making absolute rule to open judgment.</p> <p>cited: Pittsburg, Ft. Wayne & Ghicago Ry. Co. v. Shaeffer, 59 Pa. 350; Harrisburg v. Guiles, 192 Pa. 191; Lancaster County v. Hershey, 205 Pa. 343; McCracken v. The Church, 111 Pa. 106; Leas v. Hafer, 39 Pa. Superior Ct. 160; Com. v. Caldwell, 224 Pa. 103.</p> <p>cited: Clayton’s Case, 1 Meri-vale, 572; McKee’s Executors v. Com., 2 Grant, 23; Bod-enham v. Purchas, 2 Barnewall & Alderson, 39; United States v: Wardwell, 5 Mason, 82.</p>

<p>Appeal, No. 45, Oct. T., 1911, by defendant, from judgemnt of O. & T. Allegheny Co., Sept. T., 1910, No. 42, on verdict of guilty of murder of the first degree in case of Commonwealth v. Julius Molten.</p> <p>Indictment for murder. Before Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was the portion of the charge quoted in the opinion of the Supreme Court.</p> <p>In this state, the rule is well settled that where the défense offered is insanity, such defense must be made out by “fairly preponderating evidence:” Ortwein v. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205; Coyle v. Com., 100 Pa. 573; Com. v. Gerade, 145 Pa. 289; Com. v. Gutshall, 22 Pa. Superior Ct. 269.</p> <p>Where there is an erroneous instruction on a point vital to the defense, especially in a capital case, as here, such' instruction is reversible error and a new trial will be’ granted, even though the correct instruction be also given, on the ground that it is left to conjecture which instruction the jury followed: Com. v. Gerade, 145 Pa. 289; Com. v. Greene, 227 Pa. 86; Com. v. Sayars, 21 Pa. Superior Ct. 75; Com. v. Frucci, 216 Pa. 84; Com. v. Deitrick, 221 Pa. 7.</p> <p>It is only fair that the sentences immediately preceding and following are so closely connected with the one complained of, that they should be taken, read and considered together: Kilpatrick v. Com., 31 Pa. 198; Green v. Com., 83 Pa. 75; Alexander v. Com., 105 Pa. 1; Com. v. Johnson, 133 Pa. 293; Com. v. Zappe, 153 Pa. 498; Com. v. Mudgett, 174 Pa. 211; Com. v. Wireback, 190 Pa. 138; Com. v. Lewis, 222 Pa. 302.</p> <p>Upon the measure of proof and burden cast upon the defendant where insanity is alleged, we call attention to the famous case of Daniel McNaughten, 10 Clark & Finnelly, 200: Ortwein v. Com., 76 Pa. 414; Lynch v. Com., 77 Pa. 205; Com. v. Wireback, 190 Pa. 138; Com. v. Heidler, 191 Pa. 375; Com. v. Gearjardt, 205 Pa. 387.</p>

Appeal, No. 229, Jan. T., 1910, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 2438, on bill in equity in case of The Provident Life & Trust Company of Philadelphia v. John S. Hammond et al. Bill in equity for an injunction. Before Wiltbank, J. The case is stated in the opinion of the Supreme Court. Error assigned was decree awarding an injunction.

Appeal, No. 7, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1907, No. 497, on verdict for plaintiffs in case of George M. Brinton et al. v. Pennsylvania Railroad Company. Ejectment for land in the borough of East Pittsburg.

Appeal, No. 17, Oct, T., 1911, by defendant, from order of C. P. Washington Co., Nov. T., 1910, No. 78, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Ruth J. Elliott v. Diamond Coal & Coke Company. Assumpsit to recover the price of coal land. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 137, Oct. T., 1910, by Annie R. Phillipi, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 176, directing the conveyance of real estate and the payment of money in Estate of William Sheaffer, deceased. Petition to compel restoration of assets alleged to have been transferred in breach of trust. Before Hawkins, P. J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 345, Jan. T., 1910, by defendant, from judgment of O. and T. Chester Co., August Sessions, 1910, on verdict of murder in the first degree in case of Commonwealth v. William P. Burke. Indictment for murder. Before Hemphill, P. J., and Butler, J. At the trial the jury returned a verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

Appeal, No. 368, Jan. T., 1909, by plaintiff, from decree of C. P. No. 1, Phila. Co., Sépt. T., 1908, No. 4362, dismissing bill in equity in case of Elmer E. Brode v. City of Philadelphia, John E. Rey-burn, mayor of said city, Philadelphia Rapid Transit Company and Market Street Elevated Passenger Railway Company. Bill in equity to annul a contract and to declare void an ordinance of the city ’of Philadelphia dated July 1, 1907. The defendants demurred to the bill.

Appeal, No. 95, Jan. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Dec. Term, 1909, No. 2,653, making absolute rule for judgment for want of a sufficient affidavit of defense in case of John H. Law and George W. Law, copartners, trading as Law Brothers, Trustees for the Royal Insurance Company, Ltd., of Liverpool, England, v. Alfred M. Waldron. Assumpsit to recover balance alleged to be due by an agent.

<p>Partnership — Evidence—Decree pro confesso — Admission against interest — Estoppel—Adjudication by orphans’ court.</p> <p>1. In. an action upon promissory notes where the defendant sets up as a defense that he was a partner of the plaintiff; and that there had been no prior accounting between them, the court makes no error in admitting in evidence the record of a decree pro confesso against the plaintiff, in an equity suit against him and another by the defendant for an accounting as partners, where such evidence is admitted, and treated in the charge, not as an estoppel, but merely as an admission against interest and the admission for such purpose is acquiesced in by the plaintiff.</p> <p>2. In an action upon promissory notes against an administrator and another, a verdict for the administrator is properly directed, where the record of the orphans’ court offered in evidence shows that the plaintiff had presented the notes in suit as a claim at the audit of the administrator’s account, and that the' claim was disallowed because it was barred by the presumption of payment, and also on the ground that the claimant had been a partner of the decedent, that the amount which he claimed had been carried on the books of the firm to his credit, blended with other moneys arising from his share of profits, and that his interest in the partnership had been sold at sheriff’s sale.</p> <p>3. While the orphans’ court has no jurisdiction to settle a partnership account,, it may consider the demand of one claiming as a firm creditor against the estate of a deceased partner.</p>

<p>Contract — Buyer and seller — Principal and agent — Commissions. -</p> <p>In an action to recover commissions on the sale of goods, a nonsuit is properly entered where there is nothing in the evidence to show that the defendant ever agreed to pay commissions to plaintiffs, or ever employed them as agents to make sales, the proof being that the plain-' tiffs were given by the defendant merely a qualified preferential right to sell in a particular territory, on prices furnished by defendant, to which plaintiffs added a percentage in making offers to customers.</p>

<p>Courts — Judgments—Res adjudicata.</p> <p>The judgment of a proper court, being a sentence or conclusion of law upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the- consent of the parties, and is not only binding upon them, but upon courts and juries ever afterwards, as long as it shall remain in force and unreversed. Lafferty’s Est., 209 Pa. 44, reaffirmed.</p>

<p>Appeal, No. 186, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1907, No. 4664, on verdict for plaintiff in case of Sara M. Brown v. Chester Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>At the trial it appeared that plaintiff was injured on the evening of July 6, 1907, at a point on defendant’s line between Norwood and Chester. The circumstances of the accident are narrated in the opinion of the Supreme Court.</p> <p>The jury returned a verdict for $10,000, which was subsequently reduced by remittitur to $4,000, upon which judgment was entered.</p> <p>Errors assigned were the admission of the evidence of the family physician, and the refusal of binding instructions for defendant.</p>

<p>Appeal, No. 206, Jan. T., 1910, by Laura A. Davis, from decree of O. C. Phila. Co., Jan. Term, 1887, No. 378, dismissing petition of Laura A.. Davis for revocation of the appointment of the Commonwealth Title Insurance Company as Trustee, in the Estate of Josiah Gilbert, deceased.</p> <p>Petition for revocation of an appointment as trustee. Before Penrose, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing the petition.</p> <p>The question whether the testator has created a separate use trust estate is always one of intention, but the burden is upon those claiming that he intended to create a separate use trust estate to show this, by language clearly indicating such intent: MacConnell v. Lindsay, 131 Pa. 476; Morrison v. Dollar Savings Bank, 36 Leg. Int. 215; Rank v. Rank, 120 Pa. 191; Ringe v. Kellner, 99 Pa. 460; Todd’s App., 24 Pa. 429.</p> <p>The failure to name a trustee, is an element to be taken into consideration: Todd’s App., 24 Pa. 429; Murray v. Lowrie, 208 Pa. 1; Chadwick v. Stroud, 27 Pa. C. C. Rep. 393; McClelland v. Floyd, 52 Pitts. L. J. 163.</p> <p>The creation of a sole and separate use trust estate being a question of intent, other cases of construction of wills may assist but not control in the conclusion to be reached in this one. It is to be observed that the same judge who delivered the opinion in Murray v. Lowrie, 208 Pa. 1, delivered the opinion in Holliday v. Ilively, 198 Pa. 335, and it is impossible to reconcile the opinions in the two cases, with reference to the propositions enunciated by Haines v. Ellis, 24 Pa. 253, and Ringe v. Kellner, 99 Pa. 460, and Bailey v. Allegheny National Bank, 104 Pa. 425.</p> <p>The burden is upon the appellant to show that in presenting her petition for a trustee she was clearly mistaken, that the will of her father did not create a separate use trust, and that the court should not have appointed a trustee. The question whether or not a separate use trust was created depends solely on the intent of the testator as expressed in his will: Scott v. Bryan, 194 Pa. 41; Wilbert’s Est., 166 Pa. 113; Pierce v. McKeehan,</p> <p>3 W. & S. 280; Jamison v. Brady, 6 S. & R. 465; Wilson v. Bryn Mawr Trust Co., 225 Pa. 139.</p> <p>Technical words such as “sole,]” “separate,” “own” or “exclusive” are not necessary for the creation of a separate use trust: Heck v. Clippenger, 5 Pa. 385; Steinmetz’s Est., 168-Pa. 171; Scott v. Bryan, 194 Pa. 41; Berg's Appeal, 166 Pa. 113. j</p> <p>The naming of a trustee or an express gift “in trust” is not necessary: MacConnell v. Lindsay, 131 Pa. 476; Wright v. Brown, 44 Pa. 224. ;</p> <p>The fact that an estate in fee is granted is iiñmaterial in determining whether or not a separate use trust has been created: Steinmetz’s Est., 3 Pa. Dist. Rep. 440; Wilbert’s Est., 166 Pa. 113.</p>

Appeal, No. 181, Jan. T., 1910, by plaintiffs, from order of C. P. No. 4, Phila. Co., June Term, 1908, No. 1336, discharging rule for judgment for want of a sufficient affidavit of defense in case of Fred R. Hood, to use of the Fidelity and Deposit Company of Maryland v. Kensington National Bank. Assumpsit for money received to plaintiff’s use.

<p>Appeal, No. 224, Jan. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1908, No. 2133, on verdict for defendant in case of David M. Ingber and Morris Richman, executors of Jacob M. Ingber, deceased, v. Tradesmen’s National Bank.</p> <p>Assumpsit for balance of deposit. Before Wiltbank, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The letters which accompanied the certified checks in each case were both of the same import, as follows:</p> <p>“Tradesmen’s National Bank, Philadelphia.</p> <p>“Dear Sirs: With reference to our check, No. 1231, dated January 18th, 1908, for $1500, which was certified by you January 18th, 1908, and which is now held by you, with our consent, as general collateral for our account and for any indebtedness of ours to the bank, we hereby authorize you to apply the same at any time you may desire towards the liquidation of any notes discounted by you for our account at maturity thereof, or prior thereto as you may deem fit.</p> <p>“Yours very truly,</p> <p>“Jacob M. Ingber & Company.”</p> <p>The jury rendered a verdict for the defendant in pursuance of binding instructions given by the court.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>In a suit by the personal representative of a decedent, against a bank in which the decedent was a depositor, to recover the amount of the deposit remaining with the defendant at the time of decedent’s death, the bank cannot defend upon the ground of a set-off which was not due at the time of the decedent’s death, it appearing that at the time of his death the decedent was insolvent: Bosler v. Exchange Bank, 4 Pa. 32; Farmers’ & Mechanics’ Bank’s App., 48 Pa. 57; Shoemaker v. Kensing-ton Nat. Bank, 9 W. N. C. 420.</p> <p>A check cannot be treated as collateral security for the payment of an obligation of the drawer of the check: International Trust Co. v. Union Cattle Co., 3 Wyoming 803 (31 Pac. Repr. 308); Atlantic F. & M. Ins. Co. v. Boies, 13 N. Y. Superior Ct. 583; Steinharter v. Coving-ton City Nat. Bank, 10 Ky. Law Repr. 359; Third Nat. Bank of Boston v. Eastern R. R. Co., 122 Mass. 240; People v. Remington, 54 Hun, 480 (8 N. Y. Supp. 31); Waddell-Entz Co., 67 Conn. 324 (35 Atl. Repr. 257).</p> <p>cited: First Nat. Bank of Mt. Joy v. Gish, 72 Pa. 13; Fisher v. Tradesmen’s Nat. Bank, 12 C. C. A. 409 (64 Fed. Repr. 706); Spott’s Est., 156 Pa. 281; Chase v. Petroleum Bank, 66 Pa. 169; Hemphill v. Yerkes, 132 Pa. 545; Taylor’s Est., 154 Pa. 183.</p>

<p>Appeal, No. 286, Jan. T., 1910, by defendant, from order of C. P. No. 3, Philadelphia Co., March T., 1909, No. 4080, opening judgment of non pros, in case of Williamsport National Bank, to the use of John H. Hunt v. C. F. Kreamer.</p> <p>Rule to strike off judgment of non pros.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in opening judgment.</p>

<p>Road law — Change of grade — Damages—Leasehold—Evidence.</p> <p>1. In an action by a tenant to recover damages for injury to Ms leasehold resulting from the change of grade of a city street, a nonsuit is properly entered where the plaintiff produces no competent testimony to prove any difference in value of the leasehold before and after the change of grade.</p> <p>2. In such a case witnesses are not qualified to testify, whose only knowledge on the subject was obtained by an examination of the reports of road juries, and the awards made to tenants of other properties in the vicinity, and whose opinions are based wholly or in part on their knowledge of these awards.</p> <p>3. Proof of the cost of the tenant’s fixtures are clearly inadmissible on the question of damages.</p>

<p>Appeal, No. 143, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,258, on verdict for plaintiff in case of W. Henry Sutton v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>' At the trial it appeared that the plaintiff was injured on January 26, 1904, while alighting from a car of one of defendant’s trains at Broad street station in the city of Philadelphia.</p> <p>The facts connected with the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,000.</p> <p>Errors assigned were (1) affirmance of plaintiff’s fourth point quoted in the opinion of the Supreme Court; (2) refusal of binding instructions for defendant, and (3) refusal to enter judgment for defendant n. o. v.</p> <p>No presumption of negligence by the defendant arises from the evidence in the case: Fearn v. Ferry Co., 143 Pa. 122; Thomas v. R. R. Co., 148 Pa. 180; Bernhardt v. R. R. Co., 159 Pa. 360; Green v. R. R. Co., 214 Pa. 240.</p> <p>The court should have given binding instructions for the defendant or should have entered judgment for the defendant non obstante veredicto: Fearn v. Ferry Co., 143 Pa. 122; Palmer v. Penna. R. R. Co., Ill N. Y. 488 (18 N. E. Repr. 859); Pittsburg, C., C. & St. L. Ry. Co. v. Aldridge, 27 Ind. App. 498 (61 N. E. Repr. 741); Cromley v. R. R. Co., 211 Pa. 429; Blotz v. R. R. Co., 212 Pa. 154; Lonzer v. R. R. Co., 196 Pa. 610.</p> <p>—The mere happening of an injurious accident, if it arises from something connected with the means of transportation, or from something over which the carrier has control, raises a presumption of negligence which the defendant is bound to overcome: Whitehouse v. Railways Co., 36 Pa. Superior Ct. 581.</p> <p>While it is admitted that a railroad company is not bound to exercise a supervision over every part of each of its cars at every moment the same is in use, but only to reasonably inspect a car for the journey, nevertheless, when an unusual circumstance, such as the formation of ice on the front platform of a car, was brought to the notice of the conductor in charge of the train at the distance of twelve or thirteen miles west of Philadelphia, when that conductor knew that at six or eight stations the platform would be used by passengers going in and out of the train, it is submitted that it was his duty to take some means of rendering that platform safe: Neslie v. Second & Third Sts. Pass. Ry. Co., 113 Pa. 300.</p> <p>The case was for the Jury: Rathgebe v. R. R. Co., 179 Pa. 31; Louisville, etc., R. R. Co. v. Cockerel, 17 Ky. Law Repr. 1037 (33 S. W. Repr. 407); Foster v. Old Colony Ry. Co., 182 Mass. 378 (65 N. E. Repr. 795); Maxfield v. Maine Central R. R. Co., 100 Maine, 79 (60 Atl. Repr. 710).</p>

<p>Appeal, No. 230, Jan. T., 1910, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1908, No. 4,249, on bill in equity in case of George W. Kucker v. Sunlight Oil & Gasoline Company.</p> <p>Bill in equity for an injunction. Before Willson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>And now, to wit, June 30, 1910, the above case having been heard on bill, answer, replication and proof, the court do order and decree that an injunction issue forthwith ordering and directing the defendant, its agents and servants not to sell or offer for sale or dispose of, for use in the commonwealth of Pennsylvania, any oil for illuminating purposes, benzine or naphtha which has not been duly inspected by the plaintiff and further ordering and directing the defendant not to place any brands on any packages containing oil in this county certifying that the same has been inspected or that the same is of a certain fire test unless the same shall have been duly inspected in this county by the plaintiff.</p> <p>Error assigned among others was the decree of the court.</p> <p>The Act of May 15, 1874, P. L. 189, is unconstitutional in that it violates sec. 7 of art. Ill of the constitution of the commonwealth of Pennsylvania, that “the general assembly shall not pass any local or special law .... regulating the affairs of counties . . . . ” or “ creating offices or prescribing the powers or duties of officers in counties:” Ruan Street, 132 Pa. 257; Lloyd v. Smith, 176 Pa. 213; Davis v. Clark, 106 Pa. 377; Morrison v. Bachert, 112 Pa. 322; Sample v. Pittsburg, 212 Pa. 533; Seabolt v. Commissioners, 187 Pa. 318; Com. v. Gilligan, 195 Pa. 504; Com. v. Patton, 88 Pa. 258; Scowden’s App., 96 Pa. 422; Bell v. Allegheny County, 149 Pa. 381; Scranton v. Silkman, 113 Pa. 191; Townsend v. Wilson, 7 Pa. C. C. Rep. 101; Miller v. Cunningham, 7 Pa. C. C. Rep. 500; Ayars’ App., 122 Pa. 266; McCarthy v. Com., 110 Pa. 243.</p> <p>The Act of May 15, 1874, P. L. 189, is unconstitutional in that it violates the requirements of sec. 5, art. XIV, of the constitution of the commonwealth of Pennsylvania, that “in counties containing over one hundred and fifty thousand inhabitants all county officers shall be paid by salary:” Philadelphia v. McMichael, 208 Pa. 297; Morrison v. Bachert, 112 Pa. 322; McCleary v. Allegheny Co., 163 Pa. 578; Com. v. Collier, 213 Pa. 138; Nissley v. Lancaster County, 215 Pa. 562; Hower v. Wayne County, 21 Pa. C. C. Rep. 289; Com. v. Oellers, 140 Pa. 457; Taggart v. Com., 102 Pa. 354; Porter v. Shields, 200 Pa. 241; Butcher v. Philadelphia, 21 Pa. C. C. Rep. 459; Melvin v. Summerville, 210 Pa. 41.</p> <p>The act of May 15, 1874, is unconstitutional in that it violates the requirement of sec. 3, art. Ill, of the constitution of the commonwealth of Pennsylvania, that “no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title:” Philadelphia v. Ry. Co., 142 Pa. 484; Phoenix-ville Borough Road, 109 Pa. 44.</p> <p>The court has power now to determine the unconstitutionality of the Act of May 15, 1874, P. L. 189: Com. v. Hazen, 207 Pa. 52; Orkney St., 194 Pa. 425; Hilliard v. Enders, 196 Pa. 587; Gallagher v. MacLean, 193 Pa. 583; Franklin v. Hancock, 18 Pa. Superior Ct. 398; Com. v. Ayers, 17 Pa. Superior Ct. 352.</p> <p>The act is not local: Hower v. Wayne Co., 21 Pa. C. C. Rep. 289; In re Registration of Campbell, 197 Pa. 581.</p> <p>The office of oil inspector is not a county office: Knisely v. Cotterel, 196 Pa. 614; Phila. v. Martin, 125 Pa. 583; Schuylkill Co. v. Pepper, 182 Pa. 13; Bartley v. Patton, 19 Phila. 496; Sheboygan v. Parker, 70 U. S. 93; Butler’s App., 73 Pa. 448; Allen’s App., 81* Pa. 302; Com. v. Wick-ersham, 90 Pa. 311; Renick v. Boyd, 99 Pa. 555; Pardee’s App., 100 Pa. 408; Bucher v. Com., 103 Pa. 528; Monongahela Bridge Co. v. Railway Co., 114 Pa. 478.</p>

<p>Contract — Indemnity—Profits—Losses—Stock transaction — Practice, C. P. — Sufficiency of statement — Affidavit of defense.</p> <p>1. A contract of indemnity against loss in certain stocks and other securities in consideration of the privilege of sharing in expected profits, wherein no date is fixed for the termination of the contract, gives either party a right to end it at his pleasure providing good faith be observed.</p> <p>2. Where in such a case the party indemnified sues the indemnifier for a sum representing the difference between the cost of the securities and their market rating on the stock exchange on a certain date, claiming that on such date the plaintiff gave positive and unequivocal notice to the defendant of the termination of the contract, the plaintiff is not entitled to judgment for want of a sufficient affidavit of defense, when the statement of claim filed admits that notwithstanding the notice of a termination of the contract the plaintiff continued thereafter to hold the securities in his own name, and that they remained unconverted at the time of the bringing of the action, and it is not claimed that the retention of the securities was pursuant to an understanding or agreement with the defendant.</p> <p>3. When a pledgee sells stock upon notice he is disqualified from purchasing the stock.</p> <p>4. To entitle a plaintiff to judgment for want of a sufficient affidavit of defense, the statement of the demand under the Act of May 25, 1887, P. L. 271, must be self-sustaining.</p>

<p>Appeal, No. 123, Jan. T., 1910, by Lewis Neilson and Michael Trump, from order of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 5,400^ making absolute rule to answer oral questions in re petition of Paul It. Brown, commissioner appointed by the circuit court for Somerset County, State of Maryland.</p> <p>Petition of commissioner appointed by a foreign court for rule on witnesses to compel answers to oral questions. Before McMichael, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was order making rule absolute and directing the witnesses to answer.</p> <p>There is no ground upon which the courts in this state should, upon any consideration of comity, enforce the order improperly made by the court of Maryland for oral examination of witnesses: Act of May 23, 1887, P. L. 158; International Coal Mining Co. v. R. R. Co., 214 Pa. 469; Doubt v. R. R. Co., 6 Pa. Dist. Rep. 238; Miller v. Dowdle, 1 Yeates, 404; Simpler’s Petition, 25 Pa. C. C. Rep. 81; Sprague v. Greenwald, 5 Pa. Dist. Rep. 631; Carter v. Blair, 10 Pa. Dist. Rep. 749; Buck v. Strong, 6 Pa. Dist. Rep. 116.</p> <p>The order was proper: Doubt v. R. R. Co., 6 Pa. Dist. Rep. 238; International Coal Mining Co. v. R. R. Co., 214 Pa. 469; McKenzie’s Case, 2 Pars. 227; Robb’s Pet., 1 Pa. Dist. Rep. 367; Buck v. Strong, 6 Pa. Dist. Rep. 116; Carter v. Oil Co., 5 Pa. Dist. Rep. 640; Shockley v. R. R. Co., 109 Md. 123 (71 Atl. Repr. 437).</p>

<p>Appeal, No. 378, Jan. T., 1910, by defendants, from decree of C. P. No. 4, Phila. Co., Dec. Term, 1909, No. 5,460, awarding an injunction in case of Logan M. Bullitt, Charles C. Binney, Barton C. Hirst, Charles F. Jenkins, Theodore J. Lewis, George D. Porter and Walter Wood v. City of Philadelphia, John E. Rey-burn, Mayor of the City of Philadelphia, and John M. Walton, controller of the city and county of Philadelphia.</p> <p>Bill in equity for injunction to restrain the negotiation of a loan of $8,000,000.</p> <p>From the record it appeared that on December 31, 1909, councils of the city of Philadelphia passed the following ordinance:</p> <p>“Section 1. The Select and Common Councils of the City of Philadelphia do ordain, That the debt of the said City shall be increased in the sum of eight million (8,000,000) dollars for the following purposes: For the purchase of sites and the erection of buildings for elementary schools, one million seven hundred and fifty thousand (1,750,000) dollars; for children’s playgrounds, one hundred thousand (100,000) dollars; for the completion of filtration work at Queen lane, five hundred and twenty-five thousand (525,000) dollars; for repaving streets not occupied by passenger railways, two hundred thousand (200,000) dollars; for main sewers, two hundred and fifty thousand (250,000) dollars; for new bridges, one hundred thousand (100,000) dollars; for resurfacing with asphalt streets not occupied by passenger railways, three hundred thousand (300,000) dollars; for grading, three hundred thousand (300,000) dollars; for new macadam roads, one hundred thousand (100,000) dollars; for branch sewers, two hundred thousand (200,000) dollars; for paving intersections, one hundred thousand (100,000) dollars; for the improvement of the harbor, six hundred thousand (600,000) dollars; for the high pressure fire system in the mill district, five hundred thousand (500,000) dollars; for sites and erection, improvement and alterations to police and fire stations, two hundred and sixty-five thousand (265,000) dollars; for fire and police apparatus and equipment, one hundred thousand $100,000) dollars; for Cohocksink sewer, fifty thousand (50,000) dollars; for League Island Park, two hundred and fifty thousand (250,000) dollars; for mandamuses, one million (1,000,000) dollars; for Parkway, one million (1,000,000) dollars; for monument and history of Philadelphia soldiers and sailors, one hundred thousand (100,000) dollars; for restoration of Congress Hall, lighting Independence Hall and Square, sixty thousand (60,000) dollars; for the erection of hospital buildings for contagious diseases, one hundred and fifty thousand (150,000) dollars.</p> <p>“Sect. 2. That for the purpose of obtaining the assent of the electors to the increase of indebtedness set forth in Section 1, an election shall be held in pursuance of the Act of June 9, 1891, at the usual places of holding elections, at the election to be held on the third Tuesday of February, 1910, that notice of said election shall be given by the corporate authorities of the municipality by weekly advertisements, in not exceeding three newspapers of the said City, during at least thirty days prior to the said election, and the said notice shall contain a statement of the amount of the last assessed valuation of the taxable property of the said City, the amount of the existing debt, the amount of percentage of the proposed increase and the purpose for which the indebtedness is to be increased, and the City Commissioners are hereby authorized and directed to prepare and distribute the necessary ballots as provided for in the laws of the State of Pennsylvania governing the increase of indebtedness of municipalities.”</p> <p>In pursuance of the provisions of the second section of this ordinance, notice of the election which the ordinance directed should be held upon the third Tuesday of February, 1910, was given, by advertisement, in three newspapers in said city. These advertisements began on January 22, 1910, and were continued for four weeks. In the notice the amount of the last assessed valuation of taxable property in said city was stated to be $1,388,675,057. The existing net debt was stated to be $84,901,620.22. The amount of the proposed increase of indebtedness was stated to be $8,000,000. The percentage of the proposed increase of the indebtedness to the amount of the last assessed valuation of the taxable property of the said city was stated to be .0057tflM?. The purposes for which the indebtedness of the city was proposed to be increased were stated to be the same as those which are set forth in the first section of the ordinance. At the election held on the third Tuesday of February, 1910, a majority of the electors voting on the question of the increase of the indebtedness voted in favor of such increase.</p> <p>The court granted the injunction on the ground of the insufficiency of the notice and the failure of councils to signify by ordinance or vote its desire to increase the debt of the city.</p> <p>Error assigned among others was decree awarding the injunction.</p> <p>The ordinance was a sufficient compliance with the statute: Barr v. Philadelphia, 191 Pa. 438.</p> <p>The election authorizing the increase of the city’s debt was valid: Elliot v. Philadelphia, 229 Pa. 215; Selig v. Philadelphia, 19 Pa. Dist. Hep. 907; Seymour v. Tacoma, 6 Wash. 427 (33 Pac. Repr. 1059); Coloma v. Eaves, 92 U. S. 484; San Luis Obispo v. Haskin, 91 Cal. 549 (27 Pac. Repr. 929); Brown v. Street Lighting District, 70 N. J. Law, 762 (58 Atl. Repr. 339); Cheyenne v. State, 17 Wyo. 90 (96 Pac. Repr. 244); State v. Salt Lake, 35 Utah, 25 (99 Pac. Repr. 255); Dishon v. Smith, 10 Iowa, 212; Hes-seltine v. Wilbur, 29 Wash. 407 (69 Pac. Repr. 1094).</p> <p>The requirements of the statute with regard to the publication of notice are mandatory: Hoffman v. Pitts-burg, 229 Pa. 36; Clark v. Luzerne Boro., 196 Pa. 210; Whitherop v. Titusville School Board, 7 Pa. C. C. Rep. 451; Com. v. Blankenburg, 218 Pa. 339.</p> <p>The statement of the amount of the “last assessed valuation” was substantially erroneous and misleading: Elliot v. Philadelphia, 229 Pa. 215; Chicago, etc., R. R. Co. v. Wilber, 63 Neb. 624 (88 N. W. Repr. 660).</p> <p>Other cases which rule that the assessed valuation is only to be determined by an examination of the books, after final revision has been made, are: Levy v. McClellan, 196 N. Y. 178 (89 N. E. Repr. 569); Rathbone v. Kiowa County Commissioners, 27 C. C. A. 477 (83 Fed. Repr. 125); Board of Education of Huron v. National Life Ins. Co., 36 C. C. A. 278 (94 Fed. Repr. 324); State v. Babcock, 24 Neb. 640 (39 N. W. Repr. 783); Kingsberry v. Pettis County, 48 Mo. 207; Hopper v. Inhabitants of Union Twp., 54 N. J. Law, 243 (24 Atl. Repr. 387); Wilson v. Board of Education of Huron, 12 S. D. 535 (81 N. W. Repr. 952); State v. Tolly, 37 S. C. 551 (16 S. E. Repr. 195); Prickett v. City of Marceline, 15 C. C. A. 700 (69 Fed. Repr. 462); Germania Savings Bank v. Town of Darlington, 50 S. C. 337 (27 S. E. Repr. 846).</p> <p>The ordinance providing for the election was illegal, because not preceded by any ordinance or vote declaring the desire of councils for an increase of indebtedness: Hoyt v. East Saginaw, 19 Mich. 39.</p>

<p>Appeal, No. 337, Jan. T., 1910, by Lillian Vaughan Nixon, from decree of O. C. Phila. Co., April T., 1910, No. 202, dismissing exceptions to adjudication in Estate of Mary Catharine Vaughan, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions.</p> <p>cited: Hague v. Hague, 161 Pa. 643; Peale’s Est., 31 W. N. C. 551; Lewis’s App., 108 Pa. 133; Heck’s Est., 170 Pa. 232; Pennock’s Est., 20 Pa. 268; Shirlock v. Shirlock, 5 Pa. 367; Pales v. Currier, 55 N. H. 392; Yost v. McKee, 179 Pa. 381; Sheetz’s App., 82 Pa. 213; Rodrigue’s App., 22 W. N. C. 358; Martin’s Est., 1 Pa. Dist. Rep. 167; Schwab’s Est., 22 Pa. C. C. Rep. 218; Wilson v. Bryn Mawr Trust Co., 225 Pa. 139.</p>

<p>Executors and administrators — Removal of executor — Order to deliver assets — Bond for supersedeas — Practice, O. C.</p> <p>1. Where there is pending in the orphans’ court at one and the same time an appeal from a probate of a will, an application in the same estate for an issue devisavit vel non and a petition asking for the appointment of an administrator pendente lite, it is proper for the court to pass upon the petition for the appointment first and to appoint an administrator pendente lite if the facts warrant it. It is irregular practice to order all matters relating to these issues to be heard together, but such action of the court in itself is not reversible error. If, however, the court in dismissing the appeal, the application and the petition, at the same time enters a decree removing the executor upon a mere motion for removal, after all the testimony was in, and after it had refused to expunge averments in the petition which were only relevant upon the validity of the will and without bearing upon the removal of the executor, the decree of removal will be reversed.</p> <p>2. In such a case the executor has just ground for complaint, because he was not given an opportunity during the whole course of the hearing to fairly meet and answer any direct issue involving his peremptory removal as executor.</p> <p>3. Pending an appeal from an order removing an executor, the orphans’ court is not justified in making a peremptory order upon the executor to deliver over the assets in bis hands to an administrator who had been appointed in the meantime, where it appears that the executor had no time to file an account, that he had not been asked nor given an opportunity to enter security, that he was not charged with embezzlement, and that he was ready, as the evidence showed, to render an account of his administration of the estate.</p> <p>4. Where an executor, who has been removed from his office, ha3 surrendered all the personal assets, except household goods and effects, the orphans’ court in fixing the amount of the bond in order to make the appeal from the order of removal a supersedeas, should not include in such amount the value of the decedent’s real estate. The income from the real estate may be included,' but not the corpus.</p>

<p>Appeal, No. 183, Jan. T., 1911, by defendant, from judgment of Superior Court, Oct. T., 1910, No. 3, affirming judgment of Q. S. Chester Co., on verdict of guilty in case of Commonwealth v. James Spence.</p> <p>Indictment for selling liquor without a license.</p> <p>Appeal from judgment of the Superior Court.</p> <p>Error assigned was the judgment of the Superior Court.</p> <p>cited: Mercersburg Licenses, 5 Pa. Dist. Rep. 171; Franklin County Liquor Licenses, 12 Pa. Dist. Rep. 212; Jefferson County Licenses, 15 Pa. Dist. Rep. 563; Donoghue’s License, 5 Pa. Superior Ct. 1; In re Breslin, 45 Hun (N. Y.), 210.</p> <p>cited: Com. v. Hayes, 149 Mass. 32 (20 N. E. Repr. 456); Com. v. Markoe, 34 Mass. 465; Com. v. McCormick, 150 Mass. 270 (22 N. E. Repr. 911).</p>

<p>Appeal, No. 133, Jan. T., 1910, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1907, No. 946, on verdict for plaintiff in case of Alida S. Lockard v. George A. Vare et al., trading as Vare Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, P. J.</p> <p>At the trial the court admitted under objections and exceptions the testimony of the plaintiff. [1]</p> <p>The court also admitted the evidence of Iola E. Wright as to the condition of the sidewalk an hour after the accident. [2]</p> <p>The facts of the case appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $4,000. Defendants appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (3) in refusing binding instructions for defendants.</p> <p>The plaintiff, in an. action against a partnership, to recover damages for personal injuries, alleged to be due to the negligence of the copartners and their agents, is not a competent witness when one of the partners has died since the accident and before the time of trial: Brady v. Reed, 87 Pa. Ill; La-cock v. Com., 99 Pa. 207; Irwin v. Nolde, 164 Pa. 205; Kyte v. Foran, 167 Pa. 252; Robbins v. Farwell, 193 Pa. 37.</p> <p>The learned trial judge should have given binding instructions for the defendants as the accident which caused the injury to the plaintiff was not shown to have been caused by the negligence of the defendants: Sandt v. North Wales Fdy. Co., 214 Pa. 215; Laven v. Moore, 211 Pa. 245; Wall v. Lit, 195 Pa. 375; Lerner v. Philadelphia, 221 Pa. 294.</p> <p>Plaintiff was a competent witness: Ash v. Guie, 97 Pa. 493; Githers v. Clarke, 158 Pa. 616; Strause v. Braunreuter, 4 Pa. Superior Ct. 263; Lancaster County National Bank v. Henning, 171 Pa. 399.</p> <p>The case was for the jury: Reel v. Elder, 62 Pa. 308; Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Snyder v. Bougher, 214 Pa. 453; Dalmas v. Kemble, 215 Pa. 410; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641.</p>

<p>Appeal, No. 139, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 3,692, on verdict for plaintiff in case of William II. Rocap v. Bell Telephone Company of Philadelphia.</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>At the trial the jury returned a verdict for $5,000, on which judgment was entered for $2,500, all above that sum having been remitted. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.</p> <p>The rule res ipsa loquitur does not control the present case: Stearns v. Ontario Spinning Co., 184 Pa. 519; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Baran v. Beading Iron Co., 202 Pa. 274; Johns v. Penna. B. B. Co., 226 Pa. 319; Cavanaugh v. Allegheny County Light Co., 226 Pa. 86; Stark v. Telephone Co., 225 Pa. 390.</p> <p>Under the undisputed evidence the appellant performed its full duty relative to appliances on its telephones to guard against dangerous electrical currents.</p> <p>The maxim res ipsa loquitur clearly applies to this case: Barnowski v. Helson, 15 L. B. A. 33; Alexander v. Nanticoke Light Co., 209 Pa. 571; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Whitehouse v. Bys. Co., 36 Pa. Superior Ct. 581; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241; Sowers v. McManus, 214 Pa. 244; Brod v. St. Louis Transit Co., 115 Mo. App. 202 (91 S. W. Bepr. 993); Olsen v. By. Co., 152 Mo. 426 (54 S. W. Bepr. 470); Clark v. B. B. Co., 127 Mo. 197 (29 S. W. Bepr. 1013); Poulsen v. B. B. Co., 18 N. Y. App. Div. 221 (7. Am. Elec. 675); Leonard v. B. B. Co., 57 N. Y. App. Div. 125 (7 Am. Elec. 683); Buckbee v. B. B. Co., 64 N. Y. App. Div. 360 (7 Am. Elec. 692).</p> <p>Appellee made out a prima facie case, and the appellant failed to offer any evidence which shifted the burden of proof: Jackson v. Telephone Co., 88 Wis. 243.</p> <p>Appellant’s failure to place a warning on the telephone against its use during electrical storms tends to establish appellant’s negligence: Kibele v. Phila., 105 Pa. 41.</p>

<p>Appeal, No. 204, Jan. T., 1910, by The Methodist Episcopal Home for the Aged of Philadelphia, from decree of O. C. Phila. Co., April T., 1908, No. 192, dismissing exceptions to adjudication in Estate of Ben Kenworthy, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The auditing judge awarded the fund to the testator’s next of kin.</p> <p>Exceptions to the adjudication were dismissed in an opinion by Penrose, J.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Vendor and vendee — Sale of real estate — Breach of contract — Vendee in default — Recovery of -purchase money paid on account.</p> <p>1. When a purchaser of real estate declines to comply with his agreement by paying the purchase money, the vendor may, in affirmance of the contract, bring an action to compel payment of the money, or he may treat the contract as rescinded and sue for damages for its breach. The vendor, however, is not required, on the breach of the contract by the purchaser, to pursue either course, and the latter cannot compel him to enforce his rights by an action at law. What the vendor is required to do, under such circumstances, is to be ready and willing at the stipulated time to perform his part of the contract and convey the real estate to the purchaser in compliance with its provisions. So long as he occupies such a position, he is not in default and has not infringed or rescinded the agreement. He, therefore, is not liable to a defaulting purchaser who has violated the contract by declining to fulfill its stipulations.</p> <p>2. The settled rule in respect to contracts for the sale of real estate is that the party who has advanced the money, or done an act in part performance of the agreement, and then stopped short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be-permitted to recover back what has thus been advanced or done.</p> <p>3. Where the vendor under an agreement for the sale of real estate does not rescind the agreement or refuses to convey the property but tenders a deed and insists upon the purchaser accepting title which the latter positively and at all times declines, the purchaser is not entitled to demand that the vendor continue to hold the property indefinitely or repay the purchase money paid on account under the contract.</p> <p>4. Where a vendor of land sells it under articles, and receives a portion of the purchase money on the execution of the articles, but without any obligation in the articles to return the same in case of breach, and at the date of settlement he tenders a deed for a good marketable title, and the vendee then and always thereafter refuses to complete his part of the contract by accepting the deed and paying the balance of purchase money, the vendee cannot, after the vendor has sold the property to another person for an amount in excess of the price mentioned in the articles, maintain an action to recover back the portion of the purchase money paid on account.</p>

<p>Appeal, No. 325, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. Term, 1907, No. 5,957, refusing to take off nonsuit in case of Mary Shields v. Merchants’ & Miners’ Transportation Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Kinsey, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to take off nonsuit.</p>

<p>Contract — Consideration—Promissory notes — Renewal of note — Waiver —Delay in completion.</p> <p>1. Where a contractor agrees to complete his work by a day specified for which he is to receive two promissory notes, one payable at three months, and the other on completion of the work, and he accepts at the end of the three months a renewal of the first note, he cannot allege as a defense in a suit against himself for failure to complete the work at the time specified the failure of the plaintiff to pay the first note, inasmuch as his acquiecsence in the renewal was a waiver of plaintiff's original default.</p> <p>2. Where a subcontractor enters into a contract with a city contractor to do all the work in grading a street by a time specified, and the contract provides that should the subcontractor require an extension of time, the city contractor would “use his best endeavor to have an extension of time granted,” the court will construe the stipulation with respect to an extension of time simply as a provision against unexpected contingencies which sometimes occur in work on the streets, and will not enforce it where it appears that the subcontractor made no effort to complete the work within the time limit; that he employed a wholly inadequate force, and that his dilatoriness continued, notwithstanding repeated complaints made to him, until the contractor was compelled to discharge him and complete the work himself.</p> <p>3. In such a case the subcontractor cannot set up as an excuse for his own delay that the contractor when he took over the work was himself guilty of great delay in completing it.</p>

Appeal, No. 302, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 4, Phila. Co., June T., 1904, No. 2,488, for defendants non obstante vere-dicto in case of Matilda Peterson v. John R. Wiggins et al. copartners, trading as John R. Wiggins & Company. Trespass to recover damages for death of plaintiff's husband.

<p>Appeal, No. 282, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 192, affirming judgment of C. P. No. 2, Phila. Co., March T., 1908, No. 2,392, for plaintiff on case stated in suit of Daisy Wright v. Adams Express Company.</p> <p>See 43 Pa. Superior Ct. 40.</p> <p>Appeal, No. 283, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 87, affirming judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,701, on verdict for plaintiff in case of Abe Davidson, trading as Davidson & Son, v. Adams Express Company. Affirmed.</p> <p>See 43 Pa. Superior Ct. 53.</p> <p>Appeal, No. 284, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 95, affirming judgment of C. P. Chester Co., Aug. T., 1907, No. 101, on verdict for plaintiffs in case of Ephraim Blackburn and Joseph S. Townsend, trading as Blackburn & Townsend, v. Adams Express Company. Affirmed.</p> <p>See 43 Pa. Superior Ct. 276.</p> <p>Appeals from Superior Court.</p> <p>Henderson, J., filed the following opinion in Wright v. Adams Express Co.:</p> <p>This appeal involves a consideration of the effect of the interstate commerce legislation on the liability of a common carrier for damages for negligence on a contract for the carriage of goods from Pennsylvania to the state of New York. The plaintiff sued to recover the value of a consignment of furs delivered to the defendant in Philadelphia for carriage to New York city. The bill of lading contained the following provision: “1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.” The package was not delivered to the consignee nor accounted for and the court entered judgment on the case stated in favor of the plaintiff for $350, value of the goods, notwithstanding the limitation of liability in the contract. One of the facts agreed upon was that on November 18, 1907, and before and after that date the regular rate established and in force on defendant’s line of transportation for carrying furs of the weight of those shipped from Philadelphia to New York was forty cents if their value was $50.00 or under and sixty cents if their value was $350. It was also agreed that when the plaintiff’s servant delivered the package of furs to the defendant, the agent of the latter inquired what the value of the package was and the servant not knowing the value stated that he did not know; whereupon the agent stamped on the bill of lading delivered to the plaintiff’s servant “Value asked and not given.” The appellant contends, first, that the liability of a carrier for loss of goods shipped in interstate commerce under a contract containing an agreement as to the value of the goods should be determined by the law as announced in the decisions of the supreme court of the United States and not according to the rule adopted by the Supreme Court of this state, because of the provision of the interstate commerce legislation requiring a carrier to issue a receipt or bill of lading to the shipper and making such carrier liable to the holder of the receipt for loss or damage. It is conceded that it is the well-established law of t.bis state that a common carrier cannot contract for exemption from or limitation of liability arising from his negligence or that of his servant. This doctrine has its foundation in considerations of public policy which hold that contracts permitting a common carrier to reheve himself from the obligation to take care of the property committed to his custody tend to encourage guilty negligence: Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67; Cole v. Goodwin, 19 Wend. 251; Railroad Co. v. Lockwood, 84 U. S. 357. The nature of the carrier’s undertaking imposes on him the obligation to exercise a high degree of care, and a contract which has the effect to protect him when he has committed a breach of duty and which disregards a well-defined rule of public policy cannot be enforced. There are many cases in this state which apply this doctrine as will be seen by examination of Powell v. R. R. Co., 32 Pa. 414; American Express Co. v. Sands, 55 Pa. 140; Penna. R. R. Co. v. Raiordon, 119 Pa. 577; Buck v. Penna. R. R. Co., 150 Pa. 170; Willock v. R. R. Co., 166 Pa. 184; Eckert v. Penna. R. R. Co., 211 Pa. 267. And with reference to this rule no distinction has been made between transactions involving interstate carriage and those in which the transportation was wholly within the state. Grogan v. Adams Express Co., 114 Pa. 523; Willock v. R. R. Co., 166 Pa. 184; Hughes v. Penna. R. R. Co., 202 Pa. 222, and Eckert v. Penna. R. R. Co., 211 Pa. 267, were all cases in which shipments were made from one state to another. The decisions of the federal courts have applied a different rule. They sustain the doctrine of the common law that a carrier may not contract for exemption from liability for his own negligence, but hold valid an agreement with the shipper limiting his liability to the agreed valuation in consideration of a lower rate for carriage, the shipper at the same time to have the privilege to insist upon the carrier’s liability for the full value of the property on payment of the price of transportation charged according to such value: Hart v. R. R. Co., 112 U. S. 331. Such limitation of liability being regarded as a lawful means of protection to the carrier against excessive valuation and a proper method of securing a due proportion between the amount for which the carrier is responsible and the freight paid. And it is this rule which the appellant asks to have applied here. It is conceded that the law on the subject as announced by the supreme court of the United States is not binding on the courts of this state unless congress has legislated on the subject in the act of June 29, 1906, 34 Statutes at Large, 584. Prior to that enactment it had been decided by the supreme court of the United States that a statute of a state or rule of law established by the courts of a state declaring void any contract of a common carrier exempting him from, or limiting his liability for, negligence was not in conflict with the legislation of congress on the subject of interstate commerce: Penna. R. R. Co. v. Plughes, 191 U. S. 477. Such a statute or rule of law had for its object the protection of people of the state in the enjoyment of their rights of property and to secure for them adequate redress for wrongs done within the state, and this is clearly within the authority of the state. Common carriers like other persons doing business within the territorial jurisdiction of the state are subject to its law. And in each of the states there are to be found statutes and judicial decisions defining the rights and duties of such carriers and declaring the means by which persons injured by their failure to perform their obligation may be compensated in damages. It was accordingly held in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, that a carrier exercising his calling within a particular state although engaged in the business of interstate commerce is answerable according to the laws of the state for acts of nonfeasance or misfeasance committed within its limits and that on failure to deliver goods at the time and place the right of action is given by the local law. That was a case in which a limited liability contract was set up by the railroad company in an action for personal injury received by the plaintiff while engaged in transporting cattle on the defendant’s railroad; a statute of the state of Iowa declaring that no contract, receipt, rule or regulation shall exempt any corporation engaged in transporting persons or property by railway from the liability of a common carrier or carrier of passengers which would exist had no contract, receipt, rule or regulation been made or entered into. To the same effect are Smith v. Alabama, 124 U. S. 465; New York, N. H. & H. R. R. Co. v. New York, 165 U. S. 628; Railroad Co. v. Husen, 95 U. S. 465; Hughes v. Penna. R. R. Co., 202 Pa. 222. The conclusion of these cases was reached in accordance with the doctrine that the regulation of the rights and duties of all persons under the jurisdiction of the state belongs in the first instance to the state because of its reserved power to provide for the safety of the persons and property within its territory and that this right is not taken away from re because of the exclusive right of congress to regulate interstate commerce except in cases where the attempted exercise of authority in a state is in conflict with an act of congress or is an attempt to regulate interstate commerce. In Martin v. R. R. Co., 203 U. S. 284, Mr. Justice White after reviewing some of the federal cases bearing on the subject said, “The result of the previous rulings was to recognize in the absence of action by Congress the power of the states to legislate and of course this power involved the authority to regulate as the state might deem best for the public good without reference to whether the effect of the legislation might be to limit or broaden the responsibility of the carrier.” These are not in themselves regulations of interstate commerce although they control in some degree the conduct and liability of those engaged in such commerce. It is plainly decided in the case of Hughes v. R. R. Co., 202 Pa. 222, that the interstate commerce legislation up to that time did not control the statutes or decisions of the courts of the’ states as to the validity of contracts limiting liability for negligence. But the appellant argues that the act of congress of 1906 has that effect inasmuch as it provides “that any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed; provided that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” The apparent purpose of this amendment was to require the carrier to reduce the contract for transportation to writing and to give the holder thereof prima facie title to the property; to render the first carrier liable to the lawful holder of the receipt or bill of lading for any loss caused by such carrier or by any connecting carrier over whose line or lines such property may pass and to forbid exemption of such carrier by contract from the liability imposed by the act. We are unable to discover in the language of this amendment any evidence of an intention to change the rule of law theretofore- existing with reference to the measure of damages to which a carrier might be subjected in an action for negligence. The provision for a receipt or bill of lading was evidently to enable the shipper to have the best evidence of the terms of his contract and to avoid controversy as to the title to the property shipped. No form of receipt is prescribed nor is any other liability created than that which makes the first carrier responsible for loss occurring anywhere on the line of shipment. This is a provision in aid of the shipper intended to meet the difficulty often experienced of determining on what part of a route over connecting lines a loss occurred and rendering invalid a contract with the first carrier in which liability for loss is limited to a loss occurring on the line of that carrier. But this has nothing to do- with the measure of damages which is the important subject in this appeal. It was said in Penna. R. R. Co. v. Hughes, 191 U. S. 477, that the interstate commerce laws have contained no sanction of agreements limiting liability to stipulated valuations and that until congress shall legislate upon it there is not any valid objection to a state enforcing its own regulations upon the subject although it may to this extent indirectly affect interstate commerce contracts of carriage; and in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, the court referring to rules prescribed for the construction and management of railroads and designed to protect persons and property said, “They are not in themselves regulations of interstate commerce although they control in some degree the conduct and the liability of those engaged in such commerce. So long as congress has not legislated upon the particular subject they are rather to be regarded as legislation in aid of such commerce and as a rightful exercise of the police power of the state to regulate the relative rights and duties of ■ all persons and corporations within its limits.” To the same effect is McLean & Co. v. Denver, etc., R. R. Co., 203 U. S. 38. It cannot be successfully contended that a statute or rule of law of a state declaring what shall be the measure of damages for the breach of a contract of a common carrier to deliver goods to a destination in another state is in any proper sense a regulation of interstate commerce or violative of the constitution of the United States or any law of congress. It may be conceded that the congress might legislate upon the particular subject and give validity to contracts limiting the carrier’s liability, but until such action has been taken the statutes or rules of law of the respective states are in force and we are not persuaded by the careful and exhaustive argument of the counsel for the appellant that the amendment of 1906 was intended to at all affect the subject of the right of a common carrier engaged in interstate commerce to contract for exemption from liability for his own negligence or to limit his liability with reference thereto. In. every undertaking of a carrier there is a contract either expressed or implied and at the time of the enactment of the amendment referred to the custom was perhaps general on the part of carriers to give receipts or bills of lading for the goods accepted for transportation. If congress had intended to prescribe the terms or declare the effect of such a document except as specifically set forth in the statute it is reasonable to suppose that intention would have been plainly expressed. If the act have that effect the intention can only be ascertained by processes of interpretation and reasoning which are not convincing. As the subject is a plain one and adequate language was at command it seems evident that no such decisive change of the law as is contended for by the appellant could have been contemplated. The intention was not to abridge the rights of shippers but to correct defects in the preceding legislation by reason of which they were placed at a disadvantage. This appears not only from the body of the enactment but also from the proviso continuing to shippers any remedy or right of action had under existing law. The appellant insists that the words “remedy or right of action” in the proviso have reference to the method of procedure and do not relate to the cause of action, but the enactment bears on the rights of shippers and not on the legal processes by which their rights might be enforced and was apparently intended to hold fast the law as it existed with the addition of the enlarged rights given to shippers and the increased liability imposed on the carrier. It is in this sense we think that the term “right of action” is used by Mr. Justice Gray in Chicago, M. & St. P. Ry. Co. v. Solan, 169 U. S. 133, and by Mr. Justice White in Martin v. R. R. Co., 203 U. S. 284. The language of the proviso admits the interpretation that the holder of a shipping receipt is permitted to exert his cause of action for a negligent wrong in transportation by a common carrier in the method and with the result allowed according to the law existing at the time the amendment was enacted. Our attention is directed by the appellant to the case of Tul-lock v. Mulvane, 184 U. S. 497, as a controlling authority. That was an action on an injunction bond filed in the circuit court of the United States for the district of Kansas in a proceeding in equity. Such proceedings in courts of equity of the United States are regulated by rule adopted and promulgated by the Supreme Court under the power given it by congress and it is under one of these rules that the courts of the United States proceed in requiring indemnity bonds and granting injunctions. The decision was based on the reasoning that the bond was given with reference to the rules of law applicable to such bonds in the United States courts; that the contract was with reference to a definite rule of liability and that there could be no certain general rule by which to determine such liability except as administered in the federal court; that the court has the inherent right to set the bond aside and to determine in its discretion whether recovery could be had upon it. If the obligor’s liability could be measured in other courts according to a different standard from that which controlled in the court which had directed the bond to be given it might occur that although the latter court had decreed that the injunction was rightfully issued, nevertheless in an action on the bond a state court might hold otherwise and thus subject the obligor to liability without redress. The liability of the obligors was determinable according to the measure of liability existing in the court where the bond was given, and the parties must be presumed to have contracted according to the law there prevailing. It followed as a consequence that the law of the state of Kansas which permitted the recovery of counsel fees under such a bond could not prevail against the decisions of the federal courts that such a charge was not costs within the meaning of the obligation. There the rule of court and the order of the chancellor determined the character of the bond and the extent of its obligation. The amendment of 1906 to the interstate commerce legislation has no such effect. It neither prescribes the form of a bill of lading nor fixes the measure of liability thereunder.</p> <p>The second position for which the appellant contends is that the shipper obtained transportation at less than the regular rate by undervaluing the goods and that the contract is therefore illegal and that at most recovery could not be had for more than the value on which the freight charge was paid. If a case were presented of one who had fraudulently obtained an undervaluation of goods in order to secure a lower transportation charge the question would be one worthy of serious consideration, but the facts agreed upon do not furnish a foundation for the argument presented. The shipper did not know that the appellant had an advertised schedule of rate nor what the appellant charged in this case at the time the goods were received nor what the provisions of the shipping bill were. Her agent transacted the business in her absence. She did know that express charges were based on the value of the goods, but it does not appear that she knew what the minimum value to be carried at the fixed charge was. Nor do the facts stipulated show any fraudulent conduct or intention to deceive on the part of the plaintiff’s servant. He had no knowledge of the published schedule of rates nor what the rates were, nor did he know the conditions set forth in the bill of lading. He told the truth when he informed the defendant’s agent that he did not know the value of the furs. When he gave that statement no further inquiry was made on the subject and the goods were promptly receipted for without knowledge on the part of the company of their value. The facts leave no room therefore for argument on the theory of a deception practiced by the plaintiff. There was no thought in the mind of the plaintiff or of the defendant of accepting or granting a concession or preference in the matter of rates. It would work a great hardship on many innocent shippers to hold that where one in good faith delivered his goods to a carrier for interstate transportation and paid the rate demanded without knowledge of the schedule of rates or what the rate actually was he rendered himself powerless to insist in a legal tribunal that he have his goods or their value. If the plaintiff had seen the shipping receipt when the goods were received by the defendant she could not have learned therefrom that she was getting a lower rate than was given to others under like circumstances. Preferences were forbidden by the interstate commerce legislation in force at the time the amendment of 1906 was adopted, but this did not prevent a recovery in Penna. R. R. Co. v. Hughes, 191 U. S. 477. Our conclusion is that the courts of this state have not been deprived by the interstate commerce legislation of the power to enforce the doctrine established in this state that the contract of a common carrier limiting his liability for negligence is contrary to public policy and therefore void.</p> <p>The judgment is affirmed.</p> <p>Errors assigned were the judgments of the Superior Court.</p>

<p>Appeal, No. 185, Oct. T., 1910, by defendant, from judgment of C. P. Venango Co., Nov. Term, 1907, No. 34, on verdict for plaintiff in case of Hector Vervaeke v. Adams Express Company.</p> <p>Trespass against a common carrier to recover damages for injuries to nine horses.</p> <p>From the record it appeared that on December 4, 1908, a verdict was rendered for the defendant under the instructions of the court. Subsequently, while a rule for a new trial was pending, the plaintiff moved to amend his statement of claim. In allowing this motion and in granting a new trial, Cbiswell, P. J., filed the following opinion:</p> <p>This cause having come to trial before the court and a jury and the evidence having been heard the defendant asked for binding instructions in favor of the defendant. Thereupon the plaintiff moved for leave to amend his statement of claim which motion, on objection being pctade thereto by the defendant, the court refused and directed the jury to render a verdict in favor of the defendant which was done. A motion by the plaintiff for a new trial hairing been made and argued the court permitted the plaintiff to renew his motion to amend his statement of claim. This having been done and an amended statement having been put in form and presented with the motion for leave to amend, the right of the plaintiff to so amend was objected to by the defendant and the question thus raised is now to be disposed of.</p> <p>. The statement first filed charged negligence on the part of the defendant in shipping and transporting for the plaintiff nine certain horses from Buffalo in the state of New York, to Pittsburg, Pa., the plaintiff therein claiming damages on account of such negligence upon the general, implied, or common-law liability of the defendant as a common carrier. The amended statement charges such negligence more in detail and recites and refers to a special contract under the terms of which the shipment was made, and concludes with a claim for damages on account of the alleged negligence.</p> <p>The cause of action, therefore, as disclosed by the first statement, was the alleged negligence of the defendant in transporting the horses from Buffalo to their point of destination. That disclosed by the amended statement was the like negligence. The extent of the recovery, if any, may be limited by the special contract, and the liability and duty of the defendant as carrier under the special contract may be varied thereby in some respects but the cause of action remains the same. The variances affect the proofs and the amount and extent of the recovery only.</p> <p>So viewing the original and amended statements the amendment sought appears to be authorized by the terms of the Act of March 21, 1806, 4 Sm. L. 326'. An adjudication practically in point is that of Rodrigue v. Curcier, 15 S. & R. 81, wherein it is held that (syllabus) “Where the wrong for which the plaintiff seeks redress, is the misconduct of the defendant, as his agent, in the sales of certain cottons consigned to him, the plaintiff may amend his declaration, under the act of assembly, by adding counts, preserving the substance of the same complaint.” In this case it is said that the proper construction of the act is this: When the “merits of the case cannot be reached without an amendment it is to be granted, provided the cause of action be not changed.” In Erie City Iron Works v. Barber, 118 Pa. 6, it is said: “The cause of action is the particular matter for which the suit is brought, and when the object of an amendment is not to forsake this, but to adhere to it, it is the duty of the court, when the merits of the case cannot be otherwise reached, to permit the amendment,” citing Rodrigue v. Curcier, 15 S. & R. 81.</p> <p>If the amendment introduces no new cause of action there is no force in the defendant’s contention that the action is barred by the tenth paragraph of the special contract which provides that “any suit for the recovery of loss or damage to the property shall be commenced within six months next after such loss or damage shall have accrued or be forever barred” is without force since the action to recover such damage was commenced within six months.</p> <p>While therefore we are of the opinion that the amendment should be allowed and that a new trial should be granted, the same should be granted only on the terms indicated in the order which follows:</p> <p>And now, November 15, 1909, after argument and due consideration the rule for leave to file an amended statement of claim is made absolute and the plaintiff’s motion for a new trial is granted upon condition that the plaintiff within thirty days from this date pay the costs of the term at which the trial took place, the same to be ascertained and fixed by the prothonotary.</p> <p>On a new trial the jury returned a verdict for $2,133, upon which judgment was entered. Defendant appealed.</p> <p>■ Errors assigned amongst others was (6) in refusing binding instructions for defendant, and (28) in allowing the amendment, quoting the order.</p> <p>The cause of action introduced by the amended statement was a different cause of action from that originally set up: Read v. Brown, L. R. 22 Queen’s Bench Div. 128; Travelers’ Ins. Co. v. Myers, 59 Ohio St. 332 (52 N. E. Repr. 831); Clarke v. R. R. Co., 39 W. Ya. 732 (20 S. E; Repr. 696).</p> <p>If the cause of action be changed or if the amendment speaks from its date, the plaintiff cannot recover: Grier v. Assurance Co., 183 Pa. 334.</p> <p>The amendment speaks from its date and was asked for too late: Denman v. R. R. Co., 52 Neb. 140 (71 N. W. Repr. 967); Leh v. R. R. Co., 30 Pa. Superior Ct. 396; Eckert v. R. R. Co., 211 Pa. 267.</p> <p>The contract of shipment, being evidenced by a bill of lading provided for in sec. 20 of the act of June 29, 1906, 34 United States Statutes at Large, 584, is to be construed by federal law and not by the law of Pennsylvania.</p> <p>The amendment was proper: Trace v. Penna. R. R. Co., 26 Pa. Superior Ct. 466; Rodrigue v. Curcier, 15 S. & R. 81; Erie City Iron Works v. Barber, 118 Pa. 6; Susquehanna Mut. Fire Ins. Co. v. Clinger, 10 Pa. Superior Ct. 92; Cunningham v. Day, 2 S. & R. 1; Coxe v. Tilghman, 1 Whart. 282; McAdam v. Orr, 4 W. & S. 550; Wilhelm’s App., 79 Pa. 120.</p>