Volume 239 — Pennsylvania State Reports

<p>Appeal, No. 233, Oct. T., 1912, by W. M. Murray, defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1908, No. 1068, dismissing petition to intervene in suit of George M. Bole, Receiver of Bair & Gazzam, et al., v. The Belden Automobile Transmission Company, et al., W. N. Murray.</p> <p>Petition to intervene as a plaintiff.</p> <p>The facts are stated in the opinion of the Supreme Court and in Bole v. Murray, 233 Pa. 589.</p> <p>Error assigned was decree dismissing petition to intervene.</p>

<p>Appeal, No. 224, Oct. T., 1912, by defendant, from judgment of C. P. No. 4, Allegheny Co., First Term, 1909, No. 351, on verdict for plaintiff, in case of Joseph A. Fritcb v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Cohen, J.</p> <p>At the trial it appeared that plaintiff was injured on August 24, 1907, under circumstances described in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,565.00. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant, and in refusing motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 219, Oct. T., 1912, by plaintiff, from judgment of C. P. Allegheny Co., Fourth T., 1909, No. 756, on verdict for defendant in case of William B. Yoder v. Lorenzo T. Yoder.</p> <p>Trespass for false arrest. Before Cohen, J.</p> <p>At the trial it appeared that on September 23, 1909, Lorenzo T. Yoder was the proprietor of the Hotel Yoder in the City of Pittsburgh, and that William B. Yoder, his nephew, was manager of the hotel under a written contract by which his services were to be paid for out of a portion of the profits of the business. On September 23,1909, a dispute arose between the plaintiff and the defendant, and the latter ordered the former to leave the premises. Upon the refusal of the plaintiff to obey the .defendant sent for police officers who ejected him. The evidence for the defendant tended to show that while he ordered the plaintiff’s removal from the building he did not direct his arrest. The officers locked him up.</p> <p>The court charged in part as follows:</p> <p>[“I say to you, first, that if you find by the weight of the evidence that the defendant did not order this arrest, and did not order the plaintiff to be locked up, but merely directed the officers to remove him from the building, he was well within his rights, and you must find a verdict for the defendant.”] (1)</p> <p>Defendant presented these points:</p> <p>2. That L. T. Yoder had the right in his discretion at any time to direct William B. Yoder, as his employee, to leave the hotel building, and if William B. Yoder refused or neglected to leave the building, as then directed by L. T. Yoder, that said L. T. Yoder had the right to remove William B. Yoder from the premises by force, or, at his option, procure an officer to remove him. Answer. Affirmed. (2)</p> <p>3. That L. T. Yoder, as the owner of Hotel Yoder, and as the employer of William B. Yoder, had the right to direct him to leave Hotel Yoder, and if William B. Yoder, when so directed to leave refused to obey such direction and L. T. Yoder procured an officer and directed that William B. Yoder be removed from the building, it is immaterial that L. T. Yoder failed to appear at the station house and make a charge against William B. Yoder. Answer.</p> <p>Affirmed if jury find from the evidence defendant did not order the arrest and imprisonment. (3)</p> <p>. 5. If the jury believe from the evidence that all that L. T. Yoder directed the officers called to the Hotel Yoder to remove therefrom William B. Yoder, was. to remove said William B. Yoder from the premises, without any direction to lock him up or without any statement that said L. T. Yoder would appear against William B. Yoder, then L. T. Yoder is not responsible for any misunderstanding that the officers may have had with relation to direction to locking him up and is not responsible for the detention of said William B. Yoder in Inpector Bartley’s office. Answer. Affirmed. (4)</p> <p>7. That the contract, Exhibit 1, offered in evidence by the plaintiff, to which the plaintiff and Lorenzo T. Yoder are parties, is one of employment only and constituted L. T. Yoder the employer of William B. Yoder in and about Hotel Yoder during the term of said contract, and said William B. Yoder was bound to obey the directions of L. T. Yoder concerning said employment. Answer. Affirmed. (5)</p> <p>8. That William B. Yoder, when he was directed by L. T. Yoder to leave Hotel Yoder, was bound to do so, notwithstanding the existence of his contract of employment with L. T. Yoder and what his opinion of his rights were under that contract. His failure to obey the direction to leave made him a trespasser at Hotel Yoder, liable to be removed by force or through the assistance of an officer at the discretion of L. T. Yoder. Answer.</p> <p>Affirmed as qualified by any terms pertaining to said employment contained in said contract. (6)</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-6) above instructions quoting them.</p>

Appeals, Nos. 162 and 163, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1903, No. 807, on verdict for plaintiffs in case of Patrick Coyne, in his own right and John Coyne, a minor, by his father and next friend, Patrick Coyne, v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries.

Appeal, No. 231, Oct. T., 1912, by plaintiff, from judgment of C. P. Allegheny Co., May T., 1910, No. 759, on verdict for defendant in case of Burns & Reilly Real Estate Company v. The Philadelphia Life Insurance Company. Assumpsit to recover back insurance premiums. Before Shafer, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiff appealed. Error assigned, among others, was in giving binding instructions for defendant.

<p>Appeal, No 150, Oct. T., 1912, by Emmet Queen, Intervening Creditor and Stockholder, and John B. Barbour, Intervening Stockholder, in behalf of defendant, from order of C. P Jefferson Co., April T., 1912, No. 90, discharging rules to open judgments in case of Charles F. Heidrick v. The Pittsburgh, Summerville and Clarion Railroad Company.</p> <p>Rules to open judgments. Before Reed, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Errors assigned were (1-3) in refusing to open judgments, and (4-10) various findings of fact.</p>

Appeals, Nos. 201 and 218, Oct. T., 1912, by plaintiffs and defendants, from decree of O. P., No. 1, Allegheny Co., Sept. T., 1909, No. 615, on bill in equity in case of Augusta Kaufmann, Executrix, Alfred D. Kaufmann and Raymond M. Kaufmann, Executors of the last will and testament of Jacob Kaufmann, deceased, v. Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, individually and as partners who survive Jacob Kaufmann, deceased, late partners as Kaufmann Brothers.

<p>Venue — Change of venue — Counties—Local prejudice — Appeals —Acts of March SO, 1875, P. L. 85, and March 18, 1909, P. L. 87.</p> <p>Under the Act of March 18, 1909, P. L. 37, amending the Act of March 30, 1875, P. L. 35, providing that where a county is a party there shall be a change of venue if it shall appear to the court that local prejudice exists, the determination of the question whether a change of venue should be ordered is a judicial and not a ministerial act, and as no appeal from such order is given by the statute, no appeal lies therefrom, except for an abuse of power.</p>

Appeal, No. 227, Oct. T., 1912, by plaintiff, from order of C. P., No. 2, Allegheny Co., Jan. T., 1909, No. 24, making absolute rule to open judgment in case of H. Sellers McKee v. Murray A. Verner. Rule to open judgment. Before Frazer, P. J. The opinion of the Supreme Court states the facts of the case. Error assigned was order making absolute rule to open judgments. , .

Appeal, No. 119, Oct. T., 1912, by defendants, from decree of C. P. Allegheny Co., Jan. T., 1911, No. 710, on bill in equity in case of 'Maebeth-Evans Glass Company v. Harry A. Schnelbach and Jefferson Glass Company. Bill in equity for an injunction. Shafer, J., found the facts to be as follows: First. The Maebeth-Evans Glass Company was incorporated in 1899,. and has been principally engaged since that time in the manufacture and sale of glassware for illuminating, purposes.

Appeal, No. 221, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1907, No. 396, on verdict for plaintiff in case of H. W. Joynes for use of A. T. James v. The Pennsylvania Railroad Company. Trespass for loss on perishable goods. Before Davis, J. The facts appear in Joynes v. Pennsylvania Railroad Co., 235 Pa. 232, and the opinion of the Supreme Court. Verdict and judgment for plaintiff for $23,797.33. Defendant appealed.

Appeal, No. 7, Oct. T., 1912, by-defendants, from decree of C. P. Allegheny Co., Oct. T., 1912, No. 500, on bill in equity in case of F. Norman Black v. School District, Duquesne Borough and M. Gf. Conlin. Bill in equity for an injunction, and to compel the delivery of tax duplicates.

Appeal, No. 226, Oct. T., 1912, by .defendant, from order of C. P. Allegheny Co., Oct. T., 1912, No. 1503, sustaining .demurrer to answer to petition for quo warranto in case of Commonwealth, ex rel. James A. Fulton v. Daniel S. Tobin. Petition for quo warranto.

Appeals, Nos. 216 and 217, Oct. T., 1912, by defendant, from judgments of C. P. No. 4, Allegheny Co., Fourth T., 1908, Nos. 65 and 66, on verdicts for plaintiff in cases of Maggie Wallace v. Keystone Automobile Company. Trespass to recover damages for death of plaintiff’s husband and for personal injuries to plaintiff. Before Reid, J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 80, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1909, No. 177, on verdict for plaintiff in case of Frank W. Cramer v. Aluminum Company of America.</p> <p>Trespass to recover damages for .personal injuries. Before Davis, J.</p> <p>At the trial it appeared that plaintiff was injured on December 31,1908, while working at a shearing machine in defendant’s mill. The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>D. E. Swauger, a witness for plaintiff, was asked this question on cross-examination:</p> <p>“Q. The fact is that you gave in your resignation just in time to avoid being discharged, didn’t you?</p> <p>“Objected to as incompetent and not cross-examination.</p> <p>“Objection sustained.</p> <p>“To which ruling of the court counsel for the defendant except.</p> <p>“Exception allowed and bill sealed.” (4)</p> <p>“Q. Well, you were told that you had been sleeping on your post for one thing, weren’t you? Weren’t you charged with that by one of the officers of the company?</p> <p>“A. Not that I know of.</p> <p>“Q. And isn’t it a fact that you were charged with having gotten information out of the company’s office, and put it through the mills in some improper way?</p> <p>“Objected to as not cross-examination, and as totally improper in this proceeding.</p> <p>“Objection sustained.</p> <p>“To which ruling of the court counsel for the defendant except.</p> <p>“Exception allowed and bill sealed.” (5)</p> <p>F. N. Hicks, a witness produced by plaintiff, was asked this question:</p> <p>“Q. And what was the manner in which they-removed the scrap, when the ends of the scrap protruded or extended over the ends of the boxes?</p> <p>“Objected to as incompétent and irrelevant.</p> <p>“Objection overruled.</p> <p>“To which ruling of the court counsel for the defendant except.</p> <p>“Exception allowed and bill sealed.</p> <p>“A. They generally doubled the ends together.</p> <p>“Q. And then what?</p> <p>“A. Well, it depends whether the box is full or not. As far as I have seen of it, if the box wasn’t full they would double the scrap together, and .then take it out of that box and put it into the box on the truck.” (6)</p> <p>Harvey Stratton, a witness for plaintiff was asked this question:</p> <p>“Q. How close was this scrap box, on which Mr. Cramer was working, to this shear?</p> <p>“Objected to as not cross-examination.</p> <p>“Objection sustained, on the ground that it .is not cross-examination. }</p> <p>“To which ruling of the court counsel for the defend-, ant except.</p> <p>“Exception allowed and bill sealed.” (7)</p> <p>Defendant presented these points:</p> <p>1. Under the pleadings and evidence in this case the verdict must be for the defendant. Answer.. Refused. (2)</p> <p>5. If the scrap box was under the cogwheels with the ends of the scrap sticking out of the box and striking against the cogwheels at or about the point of contact between the wheels, the plaintiff was bound to move the scrap box or take some other reasonable precaution against injury before taking bold of those ends of the scrap which were thus striking the cogwheels, and if be failed to take any such precaution be cannot recover. Answer. Refused. (3)</p> <p>Verdict and judgment for plaintiff for $8,450. Defendant appealed.</p> <p>Errors assigned were (1) refusal of motion for judgment for defendant n. o. v.; (2, 3) above instructions, quoting them, and (4-7) rulings on evidence quoting the bill of exceptions.</p>

<p>Appeal, No. 192, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Fourth Term, 1907, No. 277, on verdict for plaintiff in case of H. J. Snyder v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Haymaker, J.</p> <p>The facts relating to the accident are set forth in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Error assigned, among others, was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 157, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Third Term, 1908, No. 620, on verdict for plaintiff in case of L. L. Satler Lumber Company v. Joseph Exler.</p> <p>Assumpsit on a guaranty.</p> <p>At the trial it appeared that the written guaranty upon which the suit was brought was as follows:</p> <p>Whereas the American Box Company of Etna, Pa., is indebted to the L. L. Satler Lumber Company for lumber furnished in amount of thirty hundred and forty-four ($3044.00) dollars and also indebted to the American Lumber & Manufacturing Co. in amount of thirty-two hundred and forty-four ($3244.00) dollars. The aforesaid lumber companies agree to accept in payment thereof the American Box Company’s notes with Theodore Geiselhart’s endorsement thereon as follows:</p> <p>One sixty days for $761.00 and $811.00</p> <p>“ eighty days for $761.00 and $811.00</p> <p>“ hundred days for $761.00 and $811.00</p> <p>“ four months $761.00 and $811.00</p> <p>It is understood and agreed by the American Lumber & Mfg. Co. and the L. L. Satler Lumber Co., that if re-' quested, by the American Box Company, they will renew either or all of these notes at maturity for one-half for a period of 30 or 60 days.</p> <p>In consideration of the above, also in consideration of the sum of $1.00 receipt for which is hereby acknowledged and other valuable consideration, I the undersigned, hereby agree to become guarantor on the above paper in the sum of $3,000.00 and no more.</p> <p>Witness our hands and seals this 20th day of November, 1907.</p> <p>Jos. Exler [seal]</p> <p>L. L. Satler Lumber Co. [seal]</p> <p>L. L. Satler, Pres.</p> <p>American Lumber & Meg. Co. [seal]</p> <p>W. D. Johnston, Pres.</p> <p>Witness</p> <p>P. F. Quinn.</p> <p>The facts are fully stated in the opinion of the Supreme Court.</p> <p>At the trial the defendant made this offer:</p> <p>“The defendant offers to show by the witness on the stand, and by other witnesses, as one of the inducements which led the defendant to sign the contract in question, that at the time it was executed, that this plaintiff stated to the defendant as a fact, that the defendant had a mortgage covering the property of the box company, and threatened that unless the defendant signed this paper, the American Box Company would be put in bankruptcy by the plaintiffs, and stated as a fact that- this would destroy the lien of the defendant’s mortgage, so that he would come in just the same as a general creditor; that the defendant at that time did not know his mortgage had not been recorded. That after the mortgage was executed, he became ill and left the city, and that his mortgage was left with his attorneys, Milliken and Cramer, to be recorded. That when the plaintiffs, through Mr. Johnston, made the above statement, that defendant left the meeting and went to consult with his attorneys and found them both absent. That he thereupon returned to the meeting, but objected to signing the paper until he had an opportunity to consult with his counsel. The plaintiffs stated that the paper must be signed immediately, and that unless it was signed that very day they would proceed to put the box company in bankruptcy, and that this would destroy the lien of defendant’s mortgage. That this statement made by the plaintiffs was untrue and that the putting of said American Box Company into bankruptcy would not as a fact destroy his mortgage. That the defendant relied, however, upon these statements made by the plaintiffs, and was thereby induced to execute the guaranty involved in this suit.</p> <p>By Mr. Gealey: The offer is objected to as incompetent, irrelevant and immaterial, and for the further reasons that the conclusions of law arrived at in the offer are not correct as to whether the lien of the mortgage would have been divested or as to whether there would or would not have been a lien of the mortgage under the conditions stated in the offer.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendant requests an exception.</p> <p>Exception allowed and bill sealed. (4)</p> <p>“Defendant’s counsel offer in evidence the bill, answer and opinion of the court and decree of the court in the case brought by John B. Montgomery, Trustee of the American Box Company, versus Joseph Exler at No. 6, May term, 1908, in the District Court of the United States for the Western District of Pennsylvania; this for the purpose of showing that in that proceeding one of the questions at issue was whether or not Joseph Exler was a stockholder in the American Box Company and was indebted to that company for the purchase price of the stock and that in said case it was found and adjudicated by the court that the said Joseph Exler, the defendant, held as collateral security 377 shares of the capital stock of the said American Box Company but was not a subscriber to the stock of said company or an owner of any part of same. This is offered as conclusive evidence of that fact.</p> <p>By Mr. Gealey: Objected to for the reason that it is not a proceeding to which the parties to these suits were parties, nor is it a proceeding in any way connected with the bankruptcy proceeding so that the action of the trustee or decree against him would be binding upon these parties.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendant request an exception.</p> <p>Exception allowed and bill sealed.” (5)</p> <p>“Defendant’s counsel also offer in evidence this same record for the purpose of showing that the statements made by Mr. Johnston to the effect that if the American Box Company was put in bankruptcy that the lien of Exler’s mortgage would be destroyed and he would be put in the same position as an unsecured creditor was untrue, it having been there adjudicated that the said mortgage in question was a valid lien upon the property of the American Box Company from the time of delivery.</p> <p>Objected to as incompetent, irrelevant and immaterial.</p> <p>Objection sustained.</p> <p>To which ruling of the court counsel for defendant request an exception.</p> <p>Exception allowed and bill sealed.” (6)</p> <p>The court charged in part as follows:</p> <p>[“Now, gentlemen, a false representation to avoid a contract is not necessarily merely a lie; that is, sometimes there are lies which are not sufficient to void contracts. It is not always sufficient that the representation which is made turns out to be untrue. The underlying idea is that if the law overturns a contract which has been obtained by deceit the misrepresentation must be first of a fact, not merely of something that is a matter of opinion, but it must be of a fact that is known to be untrue or a statement made recklessly. Recklessness on the part of one making a statement is equivalent to his making a statement which he knows to be untrue, if he makes it without knowing or if he makes it without caring whether it is true or not he takes the risk of it, or if he has not sufficient ground on which to make the assertion.”] (7)</p> <p>[“In this instance there is no testimony that Mr. Johnston came into this meeting and made independent assertions as to the amount of lumber, book accounts, etc.”] (8)</p> <p>[“And I will say right here parenthetically if the box company lied or Mr. Quinn lied or any one else lied except under this testimony Mr. Johnston it makes no difference. Mr. Exler might have been deceived by the men who got him to go into this thing. He may have lost his money or not as the case may be, and he may be unfortunate, but that would not void this contract.”] (9)</p> <p>[“Mr. Johnston had this paper and so far as he read from it there is no fraudulent representation which would void this contract. The figures given by Mr. Johnston from that paper were of course presented at the creditors’ meeting (remember I have called it that just as a term) by the company; there is no evidence that he knew anything about them other than that.”] (10)</p> <p>[“I have taken away on this question of false pretense from your consideration any deceit because of an inflated statement made by Quinn or by the company.”] (11)</p> <p>[“Just exactly what was read we do not know but from the whole testimony it is very plain that Johnston read figures from that paper and if the underlying fact as to those figures, as to the amount of lumber, or the book accounts or horses and wagons, things of that kind — if the underlying fact was wrong he is not to blame for that. There is not a scrap of evidence that he was behind the counter at these books or anything of that kind and you would have no right to enter a verdict upon such a wild suspicion as that.”] (12)</p> <p>Verdict and judgment for plaintiff for $1,778.67. Defendant appealed.</p> <p>Errors assigned, among others, were (4-6) rulings on evidence, quoting the bill of exceptions; (7-12) above instructions, quoting them.</p>

<p>Appeal, No. 158, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Third T., 1908, No. 657, on verdict for plaintiff in case of American Lumber & Manufacturing Company, a corporation, v. Joseph Exler.</p>

<p>Wills — Construction—Gift to wife — Distributive share.</p> <p>1. Where a testator directs that his “entire estate be kept together as a whole and undivided for a period of five years” and that his executors should “handle the estate” as if the testator were living, and after giving his wife a half interest in the residue directs that the executors should allow his wife “sufficient .funds from the estate during the progress of settlement to live as we have heretofore lived, and to carry on certain charities and gifts that we have both made to various people and interests, which may still need them,” payments made to the wife by the executors during the settlement of the estate for her maintenance and her charities referred to in the will, are chargeable to the testator’s estate, and not to the widow’s distributive share therein.</p> <p>Executors and administrators — Compensation—Agreement with widow as to compensation.</p> <p>2. Where a testator gives one-half of his estate to his widow, and the remaining one-half to his two sisters share and share alike, and appoints the husbands of the two sisters as executors, and directs that his entire estate should be undivided for a period of five years, the executors will not be allowed commissions during the five years period, where it appears that the executors drew on their wives’ shares from time to time during the five years period, and that they subsequently agreed not to claim compensation for such period, if the widow would withdraw her exceptions asking the executors to be surcharged with interest for the amounts advanced during the five years period, which she did.</p> <p>3. A personal representative may waive or renounce his right to compensation and such waiver or renunciation need not be expressed, but may be implied from his acts and conduct.</p> <p>4. Where executors agree, after a decree nisi distributing substantially the whole estate and before the entry of final decree, not to demand commissions, and distribution is made of the whole estate, except certain stocks of small value, such agreement together with the fact that the executors had not claimed commissions in their account, will be construed as disclosing an intention to waive any claim for compensation.</p>

Appeal, No. 232, Oct. T., 1912, by South Side Trust Company of Pittsburgh, Receiver of Henry Sproul & Co., from order of C. P. Allegheny Co., July T., 1912, No. 2163, making absolute rule to turn over stock in case of John B. Barbour and William J. Bauer v. Henry Sproul and N. R. Evans, copartners, doing business as Henry Sproul & Company. Rule upon the receiver of a brokerage firm to turn over stocks.

Appeal, No. 82, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Allegheny Co., Fourth Term, 1908, No. 838, on verdict for plaintiff in case of J. L. Dawson Speer v. Benedum-Trees Oil Company. Assumpsit for commissions for sale of oil leases. Before Cohen, J. The facts are stated in the opinion of the Supreme Court. The exhibits referred to in the opinion were as follows: exhibit “a.” February 9th, 1907. J. L. D. Speer, Pittsburgh, Pa.

<p>Appeal, No. 160, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., Second Term, 1908, No. Ill, on verdict for plaintiff in case of West Homestead Borough v. F. J. Erbeck.</p> <p>Trespass for deceit. Before Shafer, J.</p> <p>The facts appear by the opinion of the Supreme Court and by the previous report of the case in 230 Pa. 316.</p> <p>Defendant presented the following points:</p> <p>1. That under the pleadings and evidence in the case, the verdict of the jury must be in favor of the defendant.</p> <p>Answer: Refused. (1)</p> <p>2. That the plaintiff by its evidence in the case, has failed to show any tort on the part of the defendant which would sustain the present action.</p> <p>Answer: Refused. (2)</p> <p>3. That the plaintiff has failed to make by its evidence such a case as would justify the court and jury in setting aside the final estimate and award of the borough engineer made under the powers committed to him by the contract, Exhibit No. 1, in evidence, and therefore the verdict of the jury must be for the defendant.</p> <p>Answer: Refused. (3)</p> <p>The court charged in part as follows:</p> <p>Now, as to the question of damages. As I understand the plaintiff’s claims for damages in this case, and the only evidence it has given which would tend to show what the damages were, was that this pavement ought to be taken up and a proper amount of sand and gravel put under it, and then the paving relaid again, and that the borough has suffered a loss to that extent. In every case of this sort, that is, in every case founded upon a tort, the measure of damages is the amount of wrong or injury that has been done to the plaintiff, and if that is connected in some way with a contract, it is not, as I have said, founded on the contract, and you cannot in an action of tort enforce a contract; that is, you cannot get your contractual rights by suing a man in trespass. All you can get in suing a man in trespass is compensation for the actual injury done, excepting under certain circumstances, which do not apply to this case. Now,- if you are satisfied from this evidence that this borough has lost and has been made worse by the amount that it would take to take this pavement up and put it back again, then that would be the measure of damages. You have heard the plaintiff’s testimony about that. I understood the plaintiff to claim that it was $31,000 or $30,000-at least. One gentleman testified it will cost $31,000. My recollection is that others testified to other amounts. You will remember them, and perhaps one man said it was $20,000 and $16,000, and so forth. Those figures are all given as the cost of doing the same thing; that is, to take up this pavement and relay it again all over the town. As I have said, that is the only measure of damages furnished you here, and if you are satisfied by the weight of the evidence that the borough has been injured to that extent — and that that ought to be done, and that is what a reasonable person owning the streets or controlling the streets would do with them to make them right, then that would be the measure of damages. That is the only measure of damages we have, and, therefore, I will have to say to you if you are not satisfied hy the weight of the evidence that that has to be done, and that the borough has been damaged that much, so that this paving ought to be taken up, even if it has been damaged in other ways, you not having any evidence about it cannot give a verdict of any other sort that I can see. Therefore, if you are not satisfied that is the proper damage in this case and that the circumstances of this case call for that being done, then you will have to find a verdict for the defendant. (4)</p> <p>By Mr. Ferguson: With reference to the remarks on the question of damages: the evidence shows that some $3,000 of the contract price remains in the hands of the borough.</p> <p>By the Court: We have nothing to do with that. This is purely and simply an action of tort. The only question is, what damages they are entitled to, if any. (5)</p> <p>Verdict and judgment for plaintiff for $18,250. Defendant appealed.</p> <p>Errors assigned were (1-5) above answers and instructions, quoting them.</p>

<p>Appeal, No. 179, Oct. T., 1912, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1911, No. 900, on verdict for defendant by direction in case of Val. F. Fisher v. The Leader Publishing Company.</p> <p>Trespass for libel. Before Brown, J,</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Husband and wife — Deed—Fraud on creditors.</p> <p>"Where a wife conveys her real estate to her husband without consideration and he holds it for seven years, and during such time contracts debts on the credit acquired by his holding such real estate, the wife cannot, after her husband has re-conveyed such real estate to her without consideration and when insolvent, assert title to it as against her husband’s creditors.</p>

<p>Appeal, No. 189, Oct. T., 1912, by defendant, from judgment of O. P. Cambria Co., Dec. T., 1909, No. 545, on verdict for plaintiff in case of Patrick Burns v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts of the case are stated in Burns v. Pennsylvania Railroad Company, 233 Pa. 304.</p> <p>Verdict for plaintiff for $4,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence and instructions of the court.</p>

<p>Municipalities — Public service corporations — License taxes— Reasonableness — Cost of inspection — Practice—Court and jury.</p> <p>1. The power of municipal corporations to defray the expense of inspecting their works is well settled. The presumption is that such license taxes are reasonable and the burden is upon the company objecting to the same to show that they are not reasonable, which may be done by showing that the cost of inspection is much less than the license tax imposed.</p> <p>2. Where a municipality brings an action of assumpsit against a public service corporation to recover such license taxes, the proper practice- is for the plaintiff to introduce the ordinance in evidence, prove that the license taxes have not been paid and rest. The burden is then upon the defendant to prove that the fees were excessive and unreasonable. A municipality is not required to show the cost of inspection and supervision until after a defense of this character has been offered by the defendant.</p> <p>3. In such a case where the question of the reasonableness of the ordinance is a mixed question of law and fact, depending upon conflicting testimony, the case is necessarily for the jury, and the action of the court in charging that the final decision of the borough cannot be inquired into is erroneous.</p> <p>4. Ordinarily it is the duty of the court to say in such a case whether, under the established facts, the ordinance is reasonable or unreasonable, but if the testimony be conflicting as to the material facts upon which the reasonableness of the ordinance depends, it may become a mixed question of law and fact to be submitted to the jury under proper instructions by the court.</p> <p>5. In an action by a municipality against a public service corporation to recover license fees, where the evidence shows that the aggregate amount of the license fees charged on all companies similarly situated in the borough, and which contributed to the cost of inspection, so greatly exceeded the actual cost of inspection as to warrant a finding that the charges were excessive and to justify the conclusion that the ordinance was unreasonable, the court commits error in charging that the borough authorities were the only tribunal that could decide the amount of the license.</p>

<p>Equity — Jurisdiction—Bill for partition and accounting — Partnership accounts — Adjustment of entire controversy.</p> <p>1. Where a court of equity has acquired jurisdiction it has power to settle the entire controversy.</p> <p>2. Where for a long period of years a number of co-owners of a mining property have operated the same for their common benefit, as partners, and one of the cotenants files a bill for partition of the property and for an accounting, and it appears that partition cannot be granted without spoiling the whole, because of the nature of the property, the court having acquired jurisdiction in equity will decree a settlement of the partnership accounts.</p> <p>Statute of limitations — Partnership accounts — Co-owners.</p> <p>3. In such case whether the parties to the suit be regarded as cotenants or as partners, the statute of limitations is not a bar where it appears that it was admitted upon the pleadings that there was an open account between the parties and that a duty to account existed.</p> <p>Equity — Pleadings—Amendment to answer.</p> <p>4. An amendment to an answer is entirely within the discretion of the court and will not be denied when justice demands it.</p> <p>Partnership — Secret profits — Duty to account.</p> <p>5. Where one or more of several partners have made secret profits by becoming interested in a business which controlled the sale of the product of a mine owned by the partnership, they must account for such secret profits to their copartners.</p> <p>Mr. Justice Elkin dissents.</p>

<p>Appeal, No. 22, Oct. T., 1912, by plaintiff, from decree of C. P. Westmoreland Co., No. 311, Equity on bill in equity in case of Braden Hurst and McClure Coke Company, now H. C. Frick Coke Company, v. John P. Brennen.</p> <p>Bill in equity for partition and accounting. Before David A. Miller, Esq., Master.</p> <p>The facts appear in the opinion of the Supreme Court in Hurst, Appellant, v. Brennen, No. 1, 239 Pa. 216.</p>

Appeal, No. 87, Oct. T., 1912, by defendant, from judgment of O. P. Westmoreland Co., August T., 1911, No. 93, on verdict for plaintiff in case of John E. Shields v. Latrobe-Connellsville Coal & Coke Co., a corporation. Assumpsit on an oral contract. Before McConnell, J. The opinion of the Supreme Court states the case. Verdict for plaintiff by direction for $2,360.76 and judgment thereon. Defendant appealed.

Appeal, No. 153, Oct. T., 1912, by Frank Gwynn, Remembrance Gwynn, Jesse Gwynn, Albert Gwynn, Frances “Wise and Ida M. Inghram, from decree of O. C. Greene Go., March Court, 1911, No. 53, affirming appraisement of real estate set apart for widow in the Estate of Thomas H. Gwynn, deceased. Inventory and appraisement of real estate to be retained by widow under the Act of Assembly of April 1, 1909, P. L. 87. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 152, Oct. T., 1912, by Frank Gwynn, Remembrance Gwynn, Jesse Gwynn, Albert Gwynn, Frances Wise and Ida M. Inghram, from decree of O. O. Greene County, March Court, 1911, No. 52, confirming appraisement of widow’s exemption in estate of Thomas H. Gwynn, deceased.</p> <p>Proceeding under the Act of April 8, 1859, P. L. 425, to have widow’s exemption of $300.00 appraised and set aside..</p> <p>Inghram, J., filed the following findings of fact, and conclusions of law:</p> <p>FINDINGS OF FACT.</p> <p>First: That Thomas H. Gwynn died intestate on the 19th day of August, 1910, in Greene County, Pennsylvania, but at the time of his death was domiciled and had his residence in Pittsburgh, State of Kansas, and had been engaged in business there for many years.</p> <p>Answer: Found that Thomas H. Gwynn died intestate on the 19th day of August, 1910, in Greene County, Pennsylvania, and that at the time of his death he was domiciled and had his residence in Jefferson Township, Greene County, Pennsylvania, hut that before his removal to Pennsylvania he had been engaged in business in the State of Kansas for many years. (2)</p> <p>Second: That the lands upon which the widow’s exemption of $300.00 is sought to be charged by this appraisement are lands of which Marshall Gwynn, father of Thomas H. Gwynn, deceased, was the perquisitor or purchaser, and the interest of Thomas H. Gwynn therein was acquired by him by descent from his father on the death of his father, Marshall Gwynn, intestate.</p> <p>Answer: Found.</p> <p>CONCLUSIONS OF LAW.</p> <p>First: That Ida M. Gwynn, widow of Thomas H. Gwynn, deceased, by the death of Thomas H. Gwynn, intestate, is not entitled, under the laws of this Commonwealth, to have the exemption of $300.00 set apart to her and charged upon these lands of which Marshall Gwynn was the perquisitor or purchaser, the interest of Thomas H. Gwynn in which was acquired by devolution and descent.</p> <p>Answer: Refused. (3)</p> <p>Second: That the appraisement and charge of $300.00 in favor of Ida M. Gwynn, widow of Thomas H. Gwynn, deceased, in and by this proceeding having been made and charged against lands acquired by Thomas H. Gwynn by descent from his father, shall be set aside at the costs of Ida M. Gwynn.</p> <p>Answer: Refused.</p> <p>Errors assigned, among others, were (2, 3) answers and requests, as above set out, and (4) the decree of the court.</p>

Appeal, No. 195, Oct. T., 1912, by plaintiffs, from judgment of C. P. Allegheny Co., Feb. T., 1912, No. 714, refusing to take off nonsuit in case of Margaret Kennewig and Henry Kennewig, her husband, v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 19, May T., 1912, by S. O. Bhodes, J. Collins Greer, S. E. Bhodes and H. L. Greer, now for use of James F. McNaul, Stockholders, from decree of C. P. Dauphin Co., Com. Docket, 1906, No. 57, in case of Commonwealth of Pennsylvania, ex rel. Hampton L. Carson, Attorney General, v. Monongahela Valley Bank of Duquesne.</p> <p>Exceptions to the report of auditor upon the final account of the receiver of an insolvent bank. Before McCarrell, J.</p> <p>Benjamin M. Nead was appointed auditor for examination and distribution.</p> <p>The court entered a decree confirming the auditor’s report.'</p> <p>Errors assigned, among others, were in overruling exceptions to auditor’s report in reference to dividends allowed (1) upon the stock of Joseph R. McQuaide; (2) upon the stock of Howard L. Black; (4, 5) with reference to fees, and (8) in not surcharging receiver with amount of deposit.</p>

<p>Appeal, No. 220, Oct. T., 1912, by plaintiff, from decree of O. P. Washington Co., No. 2114, In Equity, dismissing bill in equity in case of F. J. Egari, a resident, qualified elector and taxpayer of the defendant borough, v. “The Chief Burgess, Assistant Burgess, and Town Council of the Borough of Clays-ville,” alias, “Borough of Claysville, in the County of Washington and State of Pennsylvania,” a municipal corporation of the County of Washington, Pennsylvania, C. S. Miller, Chief Burgess, and D. M. Campsey, W. E. Milliken, James Marshall, J. L. Blayney, Harry Miller, William Edgar and Ben Hilton.</p> <p>Taxpayer’s bill to restrain borough authorities from issuing bonds. Before McIlvaine, P. J.</p> <p>The facts of the case are stated in the opinion of the Supreme Court. The court made a decree dismissing the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court dismissing the bill.</p>

<p>Appeal, No. 171, Jan. T., 1912, by plaintiff, from order of C. P. No. 5, Philadelphia Co., Dec. T., 1911, No. 2659, discharging rule for judgment for want of a sufficient affidavit of defense in case of The Philadelphia Medical Publishing Company v. Thomas T. Wolfenden.</p> <p>Assumpsit to recover balance due upon a subscription to stock. Plaintiff alleged in its statement of claim that defendant had orally agreed to subscribe to 300 shareg of plaintiff company’s stock, and had agreed to pay therefor the sum of $5,000.00, upon which he had paid $1,000.00, leaving a balance due of $4,000.00. Defendant filed an affidavit of defense, in which he averred, inter alia:</p> <p>“It is untrue, and he denies, that on or about the nineteenth day of October, 1911, he ‘promised and agreed with others who were to be stockholders in said corporation that he the defendant would take, subscribe and purchase three hundred shares of said company’s stock when said company was chartered and would pay therefor into the company’s treasury the sum of five thousand dollars.’ Deponent further denies that he promised at the time aforesaid to pay the balance, to wit: the sum of four thousand dollars, (in addition to the sum of one thousand dollars paid by him under circumstances hereinafter set forth), when said company’s charter was granted.”</p> <p>The affidavit averred the circumstances under which the thousand dollars above mentioned was paid and set up various other defenses not considered by the Supreme Court.</p> <p>Plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which the court subsequently discharged. Plaintiff appealed.</p> <p>Error assigned was the order of the court discharging the rule.</p>

Appeal, No. 303, Jan. T., 1912, by plaintiff, from order of C. P. No. 4, Philadelphia Co., Dec. T., 1909, No. 1803, making absolute rule to set aside execution against the Estate of Jacob Sobers, deceased, in case of Annie L. Feighan v. Aaron Sobers and Jacob Sobers, copartners trading as “Jacob Sobers & Son” and Charles Franz, Jr., ancillary executor of the estate of Jacob Sobers, deceased, substituted defendant.

<p>Corporations — Insolvency — Directors — Preference — Equity —Findings of fad.</p> <p>1. An insolvent corporation cannot transfer its assets to its own officers and directors for the purpose of securing them for preexisting indebtedness, Where an insolvent corporation has executed an assignment for such purpose, a court of equity will decree the same to he null and void at the suit of the trustee in bankruptcy of the corporation, and will order a reconveyance and an accounting.</p> <p>2. Findings of fact by a chancellor will not be disturbed unless clearly shown to be erroneous.</p>

<p>Appeal, No. 141, Jan. T., 1912, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1909, No. 2452, on verdict for plaintiff in case of E. B. Showell, F. Dewees Fryer and George W. Kerchner, partners, trading as Showell, Fryer & Company, v. J. H. C. Barr.</p> <p>Assumpsit on promissory notes. Before Bregy, J.</p> <p>From the record it appeared that defendant alleged that the notes were negotiated to plaintiff after maturity and were given in consequence of certain fraudulent representations. The evidence as to these representations was admitted and the case submitted to the jury. The jury rendered a verdict in favor of* plaintiff for $2,312, upon which judgment was subsequently entered. Defendant appealed</p> <p>Errors assigned were various instructions to the jury and the refusal of binding instructions for the defendant.</p>

<p>Taxation — State taxation — Insurance companies — Act of June 28,1895, P. L. 108.</p> <p>The tax imposed under the Act of June 28, 1895, P. L. 408, upon the premiums of foreign insurance companies received from business done within the State of Pennsylvania, is to be collected upon all premiums received by the company from policy holders, residents of Pennsylvania, even though paid directly to the home office or to agencies outside of Pennsylvania.</p> <p>Fell, C. J., and Brown, J., dissent.</p>

<p>Appeal, No. 132, Jan. T., 1912, by plaintiff, from decree of C. P. No. 5, Philadelphia County, June T., 1911, No. 5246, dismissing bill in equity in case of William Asam v. Matilda Asam.</p> <p>Demurrer to bill in equity.</p> <p>The facts are stated in the opinion of the Supreme. Court.</p> <p>The court sustained a demurrer to the bill and made a decree dismissing it. Plaintiff appealed.</p> <p>Error assigned was the order of the court sustaining the demurrer and dismissing the bill. . .</p>

<p>Negligence — Control of building — Bes ipsa loquitur — Nonsuit.</p> <p>1. Persons who are in control of a building have a duty of keeping it and its attachments in such condition as to prevent probable injury to anyone lawfully upon the street.</p> <p>2. In an action to recover damages for personal injuries it was held that the case was for the jury where it appeared that the defendants, while in control of a building, allowed loose boards to remain upon the floor of an outside fire escape so that they were blown into the street injuring the plaintiff.</p>

<p>Appeal, No. 147, Jan. T., 1912, by Malcolm Briggs, Jr., one of the defendants, from order of C. P. No. 5, Philadelphia Co., Dec. T., 1911, No. 575, discharging rule to open judgment in the case of Carl B. N. Von Schirach, Assignee of the Philadelphia Protestant Episcopal City Mission, Assignee of David M. Hess, v. Albert Vance, mortgagor, and Malcolm Briggs, Jr., real owner.</p> <p>Petition to open judgment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Plaintiff in an action of scire facias sur mortgage entered judgment for want of an affidavit of defense. Defendant filed an affidavit on the same day that the judgment was entered, and subsequently obtained a rule to open the judgment. The court after argument discharged the rule. Defendant appealed.</p> <p>Error assigned was the order of the court discharging the rule to open judgment.</p>

<p>Negligence — Master and servant — Passageway—Duty to light— Obstructions — Oontributory negligence.</p> <p>1. It is the duty of an employer to furnish his employees with a reasonably safe means of access to the premises where they are employed. This duty is not discharged where an employer fails to light a passageway in use by his employees, so as to disclose the presence of obstructions which are temporarily thereon.</p> <p>2. In an action by an employee to recover damages for injuries alleged to have been caused by defendant’s failure to provide a safe means of access to his place of employment, the question of defendant’s negligence and plaintiff’s contributory negligence are for the jury where it appears that plaintiff was injured by running against a temporary obstruction in an unlighted passageway, which he was required to use, at night time; that plaintiff had no reason to know that the passageway was dangerous, and did not see the obstructions; and that while it may have been customary to place such bars as those which caused the injury in the passage, they were as a rule cleared away before night.</p>

Appeal, No. 387, Jan. T., 1912, by defendant, from decree of C. P. Delaware Co., Sept. T., 1912, No. 37, in equity, granting an injunction in case of George N. Storch v. Borough of Lansdowne. Taxpayer’s bill in equity to restrain the increase of bonded indebtedness of the Borough of Lansdowne. Before Johnson, P. J. The facts are stated in the opinion of the Supreme Court. The court awarded an injunction restraining the increase of indebtedness as prayed for.

Appeal, No. 217, Jan. T., 1912, by plaintiffs, from order of C. P. No. 5, Philadelphia Co., Dee. T., 1909, No. 347, refusing to take off nonsuit in case of Samuel Presser, by his father and next friend Selig Presser, and Selig Presser v. Edwin Y. Dougherty, Jr. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Supreme Court. The court entered a compulsory nonsuit, which it subsequently refused to take off.

<p>Appeal, No. 235, Jan. T., 1912, by George W. Cogley, et al., from decree of O. O. Pbiladelphia Co., Oct. T., 1907, No. 437, dismissing exceptions to adjudication in Estate of Mary J. C. Reynolds, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the action of the court in dismissing exceptions to the adjudication.</p>

<p>Contracts — Commissions for sale of realty — Evidence—Charge of court — Practice Supreme Court — Exceptions—Question involved.</p> <p>1. A real estate broker wbo undertakes to procure a buyer for certain real estate at a fixed compensation earns his commissions if he brings the buyer and seller together, and procures the execution of a contract of purchase and sale, and such right cannot be defeated by the failure of the seller to consummate the transaction through his own fault.</p> <p>2. Where counsel took no exception to the charge of the court and did not include in his statement of questions involved the points raised by him in connection'therewith, assignments to the charge will not be considered.</p> <p>3. Where in an action to recover commissions for sale of real estate plaintiff produced testimony showing that he made an oral contract with defendant that he was to be paid a compensation of three thousand dollars for effecting the sale of certain real estate, and that the sale failed through the voluntary act of the defendant in refusing, to consummate it, the case was for the jury and a verdict and judgment in favor of the plaintiff will be sustained, notwithstanding defendant’s denial that the contract was made as contended.</p>

<p>Appeal, No. 268, Jan. T., 1912, by plaintiff, from order of C. P. No. 1, Philadelphia Co., Dec. T., 1906, No. 5286, refusing to take off nonsuit in case of George Montgomery v. Elizabeth Rowe and Helen B. Rowe, Executrices of George Rowe, deceased.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Municipalities — Eminent domain — Opening of streets — Damages — Evidence—Immaterial matters — Answers to points.</p> <p>1. Where iu a trial of a proceeding to recover damages for injuries to plaintiff’s property occasioned by the opening of a city street at a grade above the natural surface, the court has properly excluded evidence offered by the plaintiff to show the originally plotted grade at which the street was laid out, but in an examination of witnesses called by the plaintiff, and principally during their cross-examination, repeated reference was made to the earlier grade, which corresponded closely to the natural surface, but without reflection on the city for abandoning that grade, and only to explain the considerations which had entered into witnesses’ estimates, it is not error for the court to refuse defendant’s request for a point for charge to the effect that as a matter of law the jury was not entitled to take into consideration such originally proposed grade.</p> <p>2. In the trial of such a ease, where the plaintiff makes no claim for the cost of raising hi® property to the grade of' the highway, the lower court is correct in refusing to charge, as requested by the defendant, that the plaintiff could not recover for such cost.</p> <p>3. In such a case it is immaterial whether other streets in the same neighborhood have been fixed at the same grade as the street in question, and the court commits no error in refusing to allow defendant to ask a witness for the plaintiff on cross-examination whether the grade of the street causing the damage had not been fixed and determined by the grade of such other streets.</p>

<p>Eminent domain — Opening of streets — Damages—Evidence— Amount of fill required — Harmless error.</p> <p>In a proceeding to recover compensation for damages to plaintiff’s property occasioned by the opening of a street at a grade above the natural surface, the plaintiff was permitted to show by a civil engineer the amount of fill required to bring the land to the new grade, in advance of any evidence that the inconvenience created by the city’s improvement would have affected the market value, and in the absence of all evidence that any filling would be required for the proper use and development of the property. The witness did not testify as to the amount of depreciation on the property or say that such filling would be required to make the property marketable, and it did not appear that his testimony was relied upon by the other witnesses, as to amount of fill required to restore the property to its former value, or that it entered into the verdict of the jury. Held, that the admission of this testimony, while objectionable, did not constitute reversible error.</p> <p>Potter and Moschzisker, JJ., dissent.</p>

<p>Mortgages — Scire facias sur mortgage — Real owners — Defenses —Acts of July 9,1901, P. L. 61k, and April 28, 1908, P. L. 261.</p> <p>1. Under the Acts of Assembly of July 9, 1901, P. L. 614, and April 23, 1903, P. L. 261, the “real owners,” who must be joined in actions of scire facias sur mortgage, are the present owners of the title by and under which the mortgagor claimed the land at the time he executed the mortgages. Persons claiming the land by titles antagonistic to the mortgagor were not meant to be joined as such real owners.</p> <p>2. .Where in an action of scire facias sur mortgage persons claiming title superior to the mortgagor have been joined as real owners, they may object to having the jury sworn as to them or claim a misjoinder or have the proceedings arrested, but they cannot offer evidence to prove that their title is superior to that of the mortgagor. The title to the mortgaged land cannot be tried in an action of scire facias sur mortgage.</p>

Appeal, No. 372, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1910, No. 3919, on verdict for plaintiff in case of Jesse W. Roberts v. City of Philadelphia. Appeal from award of jury of view assessing damages to a property owner caused by the widening and change of grade of a city street. Before Staples, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 375, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1910, No. 5291, in favor of defendant in case of John Brynelson v. Turner-Forman Concrete Steel Company.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court directed a verdict in favor of defendant upon which judgment was subsequently entered. Plaintiff appealed.</p> <p>Error assigned was the action of the court in giving binding instructions in favor of the defendant.</p>

<p>Appeal, No. 138, Oct. T., 1912, by plaintiffs, from judgment of C. P., Allegheny Co., Third T., 1909, No. 465, on verdict for defendant in case of John Davis and Gertrude Davis, his wife, v. Dr. J. P. Kerr.</p> <p>Trespass to recover damages for personal injuries. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The defendant, who was a surgeon, in performing an operation on Mrs. Davis, one of the plaintiffs, left a gauze pad or sponge in the wound, which caused pain and suffering, and ultimately made necessary a second operation. The plaintiffs charged negligence. The defense was that it was customary for the attending nurses to account for all the sponges and that defendant had relied on them. The court in his general charge said: “If you determine the custom was reasonable, or the practice, or whatever you choose to call it, custom or practice, among the surgeons was reasonable, and Dr. Kerr followed it, then that is the end of the case, and you should return a verdict for the defendant. Stop there and return a verdict for the defendant.” (3)</p> <p>The court answered one of defendant’s points as follows : “If the jury find from the evidence that a sponge, or other material of like nature, was left in the abdomen of Mrs. Davis, at the time of the operation, such fact alone is no evidence of negligence on the part of the defendant.”</p> <p>Answer: “Affirmed.” (7)</p> <p>The jury found a verdict for the defendant, on which judgment was subsequently entered. Plaintiff appealed.</p> <p>Errors assigned were, inter alia, (3-7) the above instructions to the jury.</p>

<p>Appeal, No. 154, Jan. T., 1911, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1909, No. 1199, for plaintiff in case of Hillside Coal & Iron Co. v. Sterriek Creek Coal Company.</p> <p>Assumpsit for royalties under a coal lease.</p> <p>The case was tried by the court without a jury under the Act of April 22,1874.</p> <p>Edwards, P. J., filed the following opinion:</p> <p>The controversy between the parties to this case involves the interpretation or construction of the terms of a coal lease, in which the plaintiff is lessor, and the defendant, lessee.</p> <p>The particular paragraph of the lease to be considered and construed is the fifteenth, which reads as follows:</p> <p>“Fifteenth. From and after July First, A. D. 1892, when the price received for the average of all sizes of coal at the breaker, above the size of pea coal shall be two dollars and fifteen ($2.15) cents per ton, the party of the second part shall pay twenty-five cents per ton, royalty, on the coal mined from the four-foot vein, and the same royalty on the pea coal and buckwheat coal from said vein, as is paid on the coal from other veins; and when the average price for the several sizes above the size of pea coal exceed the sum of two dollars and fifteen ($2.15) cents per ton, the parties of the second part shall pay sixteen per cent, of any such excess; provided that when the price of pea coal equals that of any of the sizes above pea coal, then, pea coal shall be included with the other sizes, in making up the average and shall be subject to the increased royalty.”</p> <p>Defendant contends that the fifteenth paragraph as a whole relates to the coal from the four-foot vein only. Plaintiff contends that while the first part of the paragraph, down to the first semi-colon (;) refers to the coal from the four-foot vein, the remaining part of the paragraph refers to the coal from all the veins. If the contention of the defendant be sustained, judgment should be entered for the defendant; otherwise, judgment for the plaintiff in a sum exceeding three hundred thousand dollars. It also appears that this sum of money is not all that is involved in the dispute between the parties. The judgment to be entered in this case will determine the amount of royalty to be paid by the lessee in the future; and this amount, evidently, will run into large figures.</p> <p>FINDINGS OF FACT BY THE COURT.</p> <p>1. On the 14th day of June, 1887, a coal lease was executed by and between the Hillside Coal and Iron Company, plaintiff, and the Grassy Island Coal Company, Limited, as lessee. This coal lease, Exhibit A of plaintiff’s statement, on March 15,1892, was duly assigned by the said lessee to the S ter rick Creek Coal Company, the defendant in the present case, who thereby assumed all the obligations, and succeeded to all the rights of the lessee under the original lease. Since the last mentioned date the defendant has been in possession of the property described in the lease, and has been engaged in the mining of coal from the veins contained in the property and in preparing and shipping the coal for market.</p> <p>2. It may be rightly stated that the sole question in dispute in this case is the amount of royalty to be paid by the lessee, under the fifteenth paragraph of the lease. A. “When the parties signed the lease in 1887 and agreed that a certain fixed and definite royalty price per ton should be paid for the coal mined, they evidently had in mind the probability that at some time in the future the coal market would improve to such an extent as to justify the payment to the lessor of a larger royalty than the specific rate per ton mentioned in the lease. To meet this contingency, the fifteenth paragraph provided, inter alia, a division of any excess, received by the lessee, over and above a certain price per ton paid for coal at the breaker; that is the lessor should receive a percentage of the excess. The exact words of this provision are as follows : “And when the average price for the several sizes above the size of pea coal exceed the sum of two dollars and fifteen ($2.15) cents per ton, the parties of the second part shall pay sixteen per cent, of any such excess.”</p> <p>The facts disclosed by the pleadings and the evidence as to the period when the percentage of the said excess first became payable to the lessor are undisputed; and there is no dispute as to what the parties did, or did not do, in relation to the matter. The first lessee mined coal from the property leased for a period of nearly five years; and then, in 1892, the defendant began and continued the mining of coal under the same conditions. There was no “excess” until after the month of May, 1897. At that time, and for the first time, the price of coal at the breaker exceeded $2.15 per ton; but neither of the parties paid any attention to this fact. The same routine method in the treatment of royalty accounts was observed as in the preceding period of five years. Monthly reports of coal mined were sent to the lessor, and vouchers for royalty were signed by the lessor monthly “in full of above account.” Although the excess over $2.15 per ton prevailed from May, 1897, to the institution of the present suit in 1909, with the exception of certain intervals of several months in the years 1898,1899 and 1900, yet, no claim was made by the lessor for its share of the excess, nor was there any agitation between the parties in regard to the subject until about September, 1903.</p> <p>3. In the year 1902, Mr. Peterson became superintendent of the plaintiff company, and his chief clerk was Mr. Taylor. Early in September (or late in August), 1903, at the request of Mr. Peterson, Mr. Taylor, who was about going to Europe, made a synopsis of the plaintiff’s leases, among which was the lease involved in the present case. It was then that the importance of the proper interpretation of the fifteenth paragraph was considered for the first time by the plaintiff. The matter was called to the attention of Mr. May, the general manager of the lessor; and then it became the subject of correspondence between the representatives of the lessor and lessee, supplemented by the opinions of the attorneys as to the meaning of paragraph fifteen.</p> <p>4. The vouchers for coal royalties, from September, 1903, when the dispute between the parties first arose, to, December, 1904, were signed by the officers of the plaintiff company in the usual way; that is, “in full for the above account.” After that time, the vouchers were receipted “on account, without prejudice to claim for additional royalty due under lease dated June 14,1887.” B. “The fact that the vouchers were receipted in the manner stated during the period first mentioned is of no particular significance, because of the pendency of negotiations between the parties. The fact stated cannot be used to the prejudice of the plaintiff, nor in support of defendant’s contention.” The letters passing between the representatives of the two companies and the opinions of counsel on the question in dispute are to be found in the record and they explain themselves. It is proper for us to find as a fact that from September, 1903, to the beginning of the suit in this case, sincere efforts were made by the parties to settle the controversy. It is admitted on the record that subsequent to February, 1905, the attempts to secure a settlement of the dispute by arbitration failed through no fault on the part of either party.</p> <p>5. Although the average price of coal above pea, at the breaker, exceeded $2.15 per ton for a certain portion of the period from May, 1897, to September, 1903; that is, at separated intervals, aggregating 54 out of the 76 months constituting the said period; nevertheless, the plaintiff during all this time failed to demand any share of the excess now claimed by it under the fifteenth paragraph of the lease. The failure of the plaintiff to make such a demand was not the result of a consideration or an interpretation of the terms of said paragraph; but, rather, it was the result of an oversight on the part of plaintiff’s employees, who, during the period mentioned overlooked the terms of the lease as to excess royalty.</p> <p>6. C “Plaintiff makes no claim for royalty on coal mined from the four-foot vein. Defendant did not begin the mining of coal from this vein until the year 1907. The references in the lease and in the evidence to the four-foot vein and to the royalty to be paid on its coal are significant only as an aid to the proper interpretation of the fifteenth paragraph of the lease.”</p> <p>7. Exhibit C of plaintiff’s declaration gives in detail the figures representing plaintiff’s claim for unpaid royalty under the terms of the lease. The accuracy of the figures is not controverted by the defendant. The .amount of the unpaid royalty due from defendant to plaintiff to August 1, 1909, not including any royalty for July, 1909, is $317,475.83; to which sum interest should be added.</p> <p>CONCLUSIONS OF LAW BY THE COURT.</p> <p>1. D. “The evidence and the pleadings disclosed no facts which would justify the application of the principle of estoppel as against any part of the plaintiff’s claim.”</p> <p>2. E. “The evidence pertaining to the acts and conduct of the parties in relation to the payment of royalties from the year 1897; to the year 1903, is not of such a character as to justify the conclusion of a contemporaneous interpretation by the lessor and lessee of the fifteenth paragraph of the lease.”</p> <p>3. F. In order to ascertain the meaning of paragraph fifteen, the rules of punctuation and of grammatical construction are of secondary importance. The fair construction of the paragraph does not depend solely on the rules of grammar and punctuation.</p> <p>4. The words of said paragraph and of the whole contract between the parties should be given a reasonable construction, equitable to the parties, and which will not result in giving to one an unfair or unreasonable advantage over the other. The intention of the parties is to be gathered from the whole lease and not from any detached portion of it. G. “Following these rules of construction, we conclude that the excess of sixteen per cent, mentioned in said paragraph fifteen applies to all the coal covered by the lease, and not to the coal from the four-foot vein only.”</p> <p>5. H. “Judgment should be entered in favor of the plaintiff and against the defendant for the sum of $317,-475.83, with interest.”'</p> <p>THE PARTIES TO THE LEASE AND THE SUBJECT-MATTER THEREOF; PARTICULARLY THE ROYALTY CLAUSES.</p> <p>The parties are two mining companies operating coal mines in the anthracite coal field. The plaintiff, the Hillside Coal and Iron Company, in addition to operating mines of its own, leased a certain tract of land to the Grassy Island Company, Limited, to whose rights the defendant company succeeded as lessee. It can be easily gathered from a reading of the lease that the officers of the two companies were acquainted with the coal business, the methods of mining, the question of royalties and the market rates for coal. It is a significant circumstance that these coal men, united in the anticipation that the coal market would improve at some time in the future, and, therefore, provided by the fifteenth paragraph that the lessor should be a beneficiary of a proportionate share of the improved conditions. The record shows that these improved conditions did not materialize until ten years later; but, the fact that they mutually provided for such a contingency shows the knowledge the parties had of the subject-matter of their contract. A discriminating foresight is also shown by the parties in their treatment of the fonr-foot vein. On account of its thinness as a vein, an exception was made in its favor in the rate of royalty, with a sliding advance scale as the vein improved in thickness, until it reached a certain standard when it was no longer entitled to any discrimination in its favor. The benefits of the matters referred to were mutual, the lessor benefiting by the provision for excess royalty in the future, and the lessee by a lower rate of royalty for the four-foot vein. These facts, as well as the other provisions of the lease, suggest to us that the parties to the lease knew what they were doing and were fully able to look after their respective interests.</p> <p>So far as the question bears upon the determination of the dispute in the present case the lease includes two important matters, viz: the leasing of the coal by the lessor, and the rate of royalty to be paid by the lessee. The rate of royalty is goverened by the third and fifteenth paragraphs of the lease. The other sixteen paragraphs are not drawn into the controversy.</p> <p>In the demising clause the plaintiff leases to the defendant “all the coal in or under all those certain tracts”; and, in the second paragraph, the defendant agrees to mine the coal in “all the veins which are of workable thickness.” The mining operation in contemplation was evidently not a small one. The tracts contained several veins of coal, and the minimum was fixed at 60,000 tons per annum exclusive of pea coal. The record of the mining in subsequent years also shows the extensive character of the work.</p> <p>After the provision demising the coal there comes next naturally, as in all coal leases, the important question of royalties. How much per ton shall the lessee pay for the coal mined? As stated the provisions relating to royalties are to be found in the third and fifteenth paragraphs of the lease. These provisions might properly have been included in one paragraph, or, at least, in two successive paragraphs. The fifteenth paragraph is the last paragraph of a practical character in the lease. To any person reading the lease, the inquiry readily suggests itself as to why the parties provided for the royalties in the third paragraph and then proceeded in the next eleven paragraphs to treat of matters absolutely unconnected with the question of royalties, again resuming the consideration of the royalty question in the fifteenth paragraph. It must be remembered that the third paragraph apparently furnishes a complete treatment in itself of the subject of royalties. There appears to be nothing omitted. The lease would be a complete instrument without the fifteenth paragraph. What are the provisions of the third paragraph relating to royalties? They are briefly as follows:</p> <p>a. The lessee shall pay 25 cents per ton for coal above the size of pea, 10 cents per ton for pea coal, and 5 cents per ton for buckwheat coal.</p> <p>b. When pea and buckwheat coal shall bring more than 50 cents per ton at the breaker, the lessor shall receive six per cent, of the excess.</p> <p>c. When the price of pea and buckwheat reaches the lowest price paid for the other sizes, pea and buckwheat shall pay 25 cents per ton, the same as the other sizes.</p> <p>d. An exception is made as to the four-foot vein. When the coal in said vein shall be 2y2 feet in thickness the royalty shall be 15 cents for sizes above pea and 7% cents for pea; when W/2 to 4% feet in thickness, the royalty shall be 20 cents and ten cents; when over 4y2 feet, the same price shall be paid as for the coal from the other veins.</p> <p>The question of royalties being so thoroughly covered by the third paragraph, what reason was there for inserting the fifteenth paragraph near the end of the lease? We know of only one reason, and this may be fairly gathered from the lease. The provisions for royalty found in the fifteenth paragraph were apparently a matter of further consideration by the parties. The third paragraph provided for the period beginning in 1887, when the lease was signed; the fifteenth paragraph related to the beginning of a new period in the future, at least five years distant. As a matter of fact it was ten years be-' fore the condition mentioned in said paragraph occurred. The date at which the new period was to begin, in the judgment of the parties to the lease, depended on improved conditions in the coal market; that is, when the price of coal at the breaker for sizes above pea exceeded $2.15 per ton, but not before July 1, 1892. To meet this anticipated contingency the parties agreed upon the fifteenth paragraph.</p> <p>It is undoubtedly unfortunate that the paragraph did not express more clearly the intentions of the parties as to the excess royalty; nevertheless, we have found no difficulty in ascertaining these intentions by an inspection of the lease and a consideration of all its terms.</p> <p>The third and fifteenth paragraphs of the lease, being the only paragraphs relating to royalties, should be construed together. In the orderly arrangement of the provisions as to royalties, we would take the first part of the fifteenth paragraph, clause a, and place it with the exception in favor of the four-foot vein, found in the third paragraph, so that the whole exception pertaining to that vein would read thus:</p> <p>“Provided, however, that the above royalty shall not apply to the vein known as the four-foot vein, between the Slope and Grassy Island veins, but payments shall be made in the manner aforesaid, for the coal mined from said vein as follows:</p> <p>“When the coal in said vein shall be three and a half feet or less in thickness, fifteen cents per ton, for all sizes above pea coal, and half price for pea coal; when- the coal in said vein shall be from three and a half to four and a half feet in thickness, twenty cents per ton shall be paid for all sizes above pea and half that price for pea coal; and when the.coal in said vein shall be over four and a half feet in thickness, the same price shall be paid as is specified for the other veins.</p> <p>“From and after July First, A. D. 1892, when the price received for the average of all sizes of coal at the breaker above the size of pea coal shall be two dollars and fifteen ($2.15) cents per ton, the party of the second part shall pay twenty-five cents per ton, royalty, on the coal mined from the four-foot vein, and the same royalty on the pea coal and buckwheat coal from said vein, as is paid on the coal from other veins.”</p> <p>It is clear that the “coal at the breaker,” mentioned in clause a, is the coal from all the veins and not from the four-foot vein only, and that “the average of all sizes above the size of pea coal” bringing $2.15 per ton means the average of all sizes obtained from all the veins. When the price reaches the point named, then, the coal from the four-foot vein shall pay the same royalty as the coal from the other veins. It will be noticed that this clause a refers to no excess. The moment the price of coal at the breaker touches $2.15 per ton, that moment the discrimination in favor of the four-foot vein vanishes. If the average price of coal at the breaker exceeds $2.15 per ton, then, the second part of the fifteenth paragraph, clause b, in general terms, applicable surely to the'coal from all the veins, provides that the lessor shall receive sixteen per cent, of “such excess.”</p> <p>By making clause a of the fifteenth paragraph a part of the exception at the end of the third paragraph, which exception deals entirely with the four-foot vein, all the royalty provisions relating to said vein are brought together. And what is the result ? If either of two things happen, the four-foot vein loses all favor. If the coal in the vein shall acquire a thickness of more than four and a half feet, it shall be subject to the same royalty charges as the coal from the other veins, regardless of the price of coal at the breaker; or if after July 1,1892, coal at the breaker bring $2.15 per ton, then, the coal from the four-foot vein should bear the same royalty as all the other coal, regardless of the thickness of said vein. Of course, the coal from all the veins share in the excess royalty-provided in clause 6 of the fifteenth paragraph.</p> <p>We do not have to go far to seek the reason for the discrimination in favor of the four-foot vein. It was concededly an inferior vein; but the parties to the lease understanding the mining of coal and the coal business, agreed that when the vein would show more than four and one-half feet of coal, it would cease to be an inferior vein and should pay the same royalty as the coal from the other veins; or, when the average of all sizes of coal above pea- brought $2.15 per ton at the breaker, that alone would be a reason for ending the discrimination in favor of the vein, because such a price evidently would juistify the lessee in paying the same royalty on all the coal going through the breaker.</p> <p>OUR CONSTRUCTION OP THE PIPTEENTH PARAGRAPH IS REASONABLE AND IS JUST TO BOTH PARTIES.</p> <p>A judge undoubtedly leans to a construction of a contract which is reasonable, and which does not give to one party an unfair advantage over the other. If there is a construction that is in harmony with the purpose of the parties in entering into the contract and is consistent with the terms of the contract, as written therein, that is the construction which should be adopted, rather than any other, although another construction may be offered and plausibly maintained.</p> <p>It is this necessity for a reasonable and equitable interpretation of the lease that militates most strongly against the defendant’s contention. The longer we study the lease the more convinced are we that the defendant’s construction of the fifteenth paragraph is unreasonable, strained, and destructive of the mutual purposes of the parties in entering into the lease.</p> <p>Defendant’s counsel advance a theory which they claim meets the demands of the rule of reasonable construction. We cannot state the argument in a better way than in the words of the counsel themselves:</p> <p>“We contend that there is nothing essentially unreasonable in the provision as we'interpret it. By the lease the defendant, was required to mine ail the veins of coal, the four-foot vein as well as the others. So far as appears from the instrument itself, there was no reason why it should not commence mining in the four-foot vein immediately in 1887. If it did so and found the vein, as evidently was anticipated, thin, it would be required to pay a rate of royalty very small as compared with the royalty on the other coal, and it would have the privilege of mining as much as it could for five years of the four-foot vein coal at the small rate of royalty. Evidently, in compensation for what the lessor would lose in this way, it was provided in paragraph fifteen that if, after five years of mining at these low rates of royalty, the price of coal should reach $2.15 per ton, the royalty rates on four-foot vein coal should be the same as upon that of the other veins, and as a further compensation for the royalties which the plaintiff would have lost had the mining been carried on in the four-foot vein during these five years, it was not at all unnatural that an even higher rate should be provided for if the price of coal warranted it. For example, let it be assumed that three hundred thousand tons of coal above the size of pea coal could have been secured from the four-foot vein upon the premises and that the lessee considered it to its advantage to press the minings in that vein with exceptional energy, in view of the small rate of royalty, so that in the five years during which that royalty would continue, whatever the price of coal, it had taken out two-thirds of the four-foot vein, or two hundred thousand tons, the vein being less than three and one-half feet thick, in that case it would have paid but thirty thousand dollars in royalties for the two hundred thousand tons at fifteen cents, while the rate of royalty upon the same quantity of coal from the other veins would have yielded fifty thousand dollars. It is entirely conceivable that under the provision for the payment of a higher rate of royalty than even the twenty-five cents per ton, if coal should bring a price so improbable at that time as ‘to seem a dream,’ in the language of Judge Kelly, the defendant should have been quite willing to agree to pay a higher price which might in some way compensate for the loss which the plaintiff has sustained by reason of the previous minings at the lower rate.”</p> <p>The foregoing argument suggests a possible theory as to the intentions of the parties as expressed in the third and fifteenth paragraphs of the lease; but the theory is unsound and specious, and leads the mind into a field of speculation. When we consider the fact, admitted on the record, that not a ton of coal was mined from the four-foot vein until 1907 — twenty years after the date of the lease — We are strongly convinced that the defendant does not successfully answer the rule requiring a reasonable interpretation of the lease.</p> <p>It is clear that the subject-matter of the third and fifteenth paragraphs is “royalties,” with an exception in the third as to the rate to be paid for the coal from the four-foot vein. The elimination of the favor to this vein by the first clause of the fifteenth paragraph, leaves the remainder of the paragraph applicable to all the coal from all the veins. We have already stated that the two paragraphs covering the question of royalties must be construed together; and in the effort to do this we have inserted the first clause of the fifteenth paragraph as a part of the exception in the third paragraph, where it properly belongs, because it deals with the exceptional treatment given by the lease to the four-foot vein. If this transposition is proper, then there can be no question as to the real meaning of the fifteenth paragraph. In providing for the payment of a share of the excess royalty to the lessor, in broad and comprehensive terms, the conclusion is inevitable that it covers the royalty to be paid on all the coal going through the breaker, regardless of the particular vein producing the coal.</p> <p>Any other interpretation of the fifteenth paragraph would lead us into difficulty. If the whole of the paragraph relates to the coal from the four-foot vein the anomaly would present itself of a higher royalty being paid for the coal from the poorest vein, which would be against the general scheme of the lease in regard to royalties, and against the dictates of good sense. And, on the same basis, the proviso in the fifteenth paragraph relating to pea coal would require an extremely unreasonable construction: The proviso states that when the price of pea coal equals that of any of the sizes above pea, then, pea coal shall be included with the “other sizes” in making up the “average” and shall be subject to the “increased royalty.” How can such a provision be confined to the four-foot vein? The coal from all the veins go into one breaker; the pea coal is the result of the breaker preparation of all the coal; the “other sizes” relates to the sizes into which the total production of the coal from all the veins is divided, and the “average” can have no proper meaning unless it means the average price of all sizes of all the coal going through the breaker.</p> <p>We shall not further extend this discussion. We are satisfied that the contention of the plaintiff must prevail.</p> <p>The court entered the following judgment:</p> <p>Judgment: “By order of court May 1,1911, judgment in the above case was ordered to be entered for the plaintiff for the sum of $317,475.83, with interest, and it was further suggested that the parties should agree upon the computation of interest. It now appears that the parties have agreed upon the computation of interest up to May 1, 1911, the interest so agreed upon amounting to the sum of $100,563.20. Judgment is therefore now directed to be entered in favor of the plaintiffs for the sum of $418,039.03, with interest from May 1,1911.”</p> <p>Errors assigned were in various findings of fact and conclusions, and the judgment of the court.</p>

<p>Appeal, No. 270, Jan. T., 1912, by defendant, from order of C. P. No. 2, Philadelphia Co., Sept. T, Í909, No. 2965, discharging rule to open judgment in case of Edward M. Flood v. John P. Judge.</p> <p>Rule to open judgment entered upon a promissory note by confession. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Plaintiff entered judgment upon a judgment note for $15,455.00, assessing his damages at $2,000. Defendant obtained a rule to open the judgment and let him into a defense, which rule the court subsequently discharged. Defendant appealed.</p> <p>Error assigned was the order of the court discharging the rule. •</p>

<p>Wills — Construction—Residuary estate — Legacy by name — Prior death of legatee — Lapse—Failure of heirs — Intestacy—Escheat.</p> <p>A testatrix, who died without heirs or next of kin, by will left part of the residuum of her estate to one of two sisters, by name, and not as a member of a class of children. The legatees died in the lifetime of testatrix. Held, that the bequest lapsed and es-cheated to the Commonwealth.</p>

<p>Wills — Construction—Gift to charity — Acceleration.</p> <p>Where testator has made a gift for the benefit of a charity, specifying that it shall be paid over after the termination of certain particular estátes and annuities, there can be no acceleration of the gift, even with the consent of all parties in interest. Where the testator has particularly specified the time when the gift shall be paid over, his expressed wishes must be followed.</p>

<p>Negligence — Contributory negligence — Evidence — Elevators — Judgment n. o. v.</p> <p>In an action against a city to recover damages for the death of plaintiff’s husband, judgment for the defendant n. o. v. was held proper where it appeared that decedent was killed while working in an elevator shaft belonging to defendant city, in consequence of his allowing a part of his body to extend into an adjoining shaft in which he knew a car was in operation, and where no negligence in operating the car which struck him was shown.</p>

<p>Equity — Findings of fact — Appeals.</p> <p>Findings of fact by a judge which involve the credibility of witnesses, and the weight to be given their testimony, will be given the effect of a verdict of a jury and will not be disturbed where there is testimony to support them.</p>

<p>Public officers — Sheriff—Suit for unlawful removal of property — • Joint torts — Instruction to jury.</p> <p>1. The right of action for the unlawful removal of property under levy is in the sheriff, and an execution creditor to whose use an action is brought has no standing except upon the sheriff’s right. If, therefore, the deputy sheriff in charge of the writ agreed to the removal of the property and it was subsequently returned for sale, as agreed, the sheriff suffered no injury and as to him no actionable wrong was committed.</p> <p>2. Where in an action to recover damages for the unlawful removal of property levied upon there was evidence that the deputy sheriff agreed with a claimant of the property that the property might be taken away and used, provided it were returned in time for the sale, and it was so returned, but the deputy sheriff refused to go on with the sale unless the claimant would agree that the money should be paid over to the execution creditor without any contest, the ease was for the jury and a verdict and judgment for defendants will be sustained.</p> <p>3. Where a joint tort is alleged, there cannot be a recovery without proof of a wrongful act in which both defendants participated.</p>

<p>Negligence — Municipalities — Evidence — Animals — Yicious horse.</p> <p>A nonsuit was properly granted in an action to recover damages against a city for injury to a child six years of age, caused by the kick of a horse, one of. a team belonging to the city,, where it appeared the team was standing near an iron railing surrounding a bed in which city workmen were planting bulbs, that the child had crawled into a narrow space between the railing and the team, and there was no evidence that the horse which kicked him was vicious or had before been known to kick.</p>

<p>Practice Supreme Court — Interest in controversy — Act of May 19, 1897, P. L. 67 — Affidavit—Motion to quash.</p> <p>1. An appeal can properly be taken only by one having an interest in tbe result. Where it appears that the appellant had assigned away its interest in the controversy prior to the appeal, a motion to quash might properly be sustained.</p> <p>2. The affidavit required by the Act of May 19, 1897, P. L. 67, that the appeal is not taken for delay, must be made by appellant or by some authorized officer or agent on its behalf; where the affidavit does not show that it has been made by such person it is not a compliance with the statute.</p> <p>Corporate mortgage — Foreclosure—Purchase by trustee — Reorganization — Distribution of stoch in new corporation — Detached, coupons — Priority—Auditor.</p> <p>3. Where acting under the terms of a corporate mortgage a trustee thereunder bought in the property at a foreclosure sale, and at a meeting of the bondholders a plan of reorganization was agreed to, involving the formation of a new corporation and the distribution of stock therein to the holders of bonds and coupons, an auditor appointed to make distribution of such stock has no other duty than to apportion said stock in accordance with the reorganization plan adopted by a majority of the bondholders. Whether or not the reorganization plan was effective to compel the acceptance of stock in' exchange for bonds or coupons was not before him.</p> <p>4. In such case the auditor was correct in making no distinction between holders of coupons detached from bonds and of those still attached thereto.</p> <p>5. In making such distribution of stock under the express terms of the reorganization agreement, the auditor committed no error in distributing it, first, among the holders of coupons and, second, among the holders of bonds, at its par value, especially where no evidence was produced to show that the stock was not worth its face value.</p> <p>6. Where the reorganization agreement provided for the deduction of ten per cent, from the award to all holders of bonds and coupons, in order to secure stock to be applied as a bonus to secure subscriptions to income bonds to provide working capital for the reorganized company, the auditor committed no error in making such deduction without discrimination.</p>

<p>Negligence — Proximate cause — Nonsuit—Contradictory statements — Contributory negligence.</p> <p>1. In an action to recover damages for personal injuries sustained by reason of a collision between the plaintiff, .while riding a bicycle, and a car of defendant company, a nonsuit is properly entered where it appears that as plaintiff was riding along a city street, he reached the intersection of another street on which defendant company operated a trolley line, and while he was twenty-seven feet from the nearest rail he saw a car only sixty or eighty feet north of the crossing; that he expected the .car would stop before making the crossing and he intended to go in front of it; that before he reached the curb, he saw the car opposite the crossing and in motion ; and he then turned into the intersecting street, intending to go back of the car, and ran into its rear end; and that when he turned he was more than thirteen feet from the nearest rail and was running very slowly so that he could have stopped within five feet.</p> <p>2. In such a case the fact that plaintiff’s first Statements of the occurrence were contradictory and the net result of his testimony was in doubt will not require the submission of the case to the jury, where plaintiff’s attention was called to the contradictions, and his final statement showed contributory negligence.</p>

<p>Appeal, No. 159, Jan. T., 1912, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1910, No. 4365, on verdict for defendants in case of Solomon Keller, Executor of a paper writing purporting to be the last will and testament of Sarah Elwell, deceased; Solomon Keller, Mary E. Keller and Sue Witkowsky v. Harrison Keller, Jacob Keller, Susan Nutto, Mary A. Springer and Jennie Caldwell.</p> <p>Trial of issue devisavit vel non. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury rendered a verdict for defendants. Plaintiffs made motions for new trial and judgment n. o. v., which were overruled, and judgment was entered on the verdict. Plaintiffs appealed.</p> <p>Errors assigned, inter alia, were various instructions to the jury. (</p>

<p>Appeal, No. 336, Jan. T., 1912, by defendant, from decree of C. P. No. 2, Philadelphia County, March T., 1912, No. 4340, making absolute rule for peremptory mandamus in the case of George W. Shisler v. City of Philadelphia.</p> <p>Petition for rule to show cause why writ of mandamus should not issue.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in making absolute rule for peremptory mandamus.</p>

<p>Public officers — Term of office — Township supervisor — Schedule of 1909 — Act of June lk, 1911, P. L. 9k%.</p> <p>The term of office of a township supervisor elected at the February election of 1909, for the unexpired term of a predecessor in office whose term expired on.the first Monday of March, 1911, was extended to and expired on the first Monday of December, 1911, by the schedule of constitutional amendments adopted in 1909, and could not be further extended by the Act of June 14, 1911, P. L. 942, beyond the time definitely fixed for its expiration by the constitutional amendment.</p> <p>Com. v. Murphy, 236 Pa. 608, distinguished.</p>

<p>Appeal, No. 346, Jan. T., 1912, by Sara Phillips Thomas, from decree of C. P. No. 4, Philadelphia Co., March T., 1911, No. 5291, to Superior Court of Oct. T., 1912, No. 29, and certified, approving charter In re the Garrett-Williamson Lodge.</p> <p>Application for a charter for The Garrett-Williamson Lodge, a corporation of the first class. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions and approving charter.</p>

<p>Municipalities — License tax — Motor vehicles — Acts of April 22, 1889, P. L. 89, and April 27,1909, P. L. 265.</p> <p>1. The Act of April 27, 1909, P. L. 265, requiring state registration and license for motor vehicles, gives to the owner of motor vehicles so licensed rights equal with, but not greater than, those enjoyed by drivers of wagons, carriages and other vehicles upon the public highway, and when the owner of a motor vehicle licensed by the State engages in a particular kind of business for profit and conducts it in such a manner as to require additional police protection, necessitating an increase in public expenditures, the municipal authorities have the power to require the payment of a reasonable license fee for the privilege of employing the motor vehicle in such special business.</p> <p>2. Under the Act of April 22, 1889, P. L. 39, providing “That the town council of each borough now incorporated within this Commonwealth.____shall have the power to enact ordinances establishing reasonable”: rates of license tax on all hacks......and other vehicles used in carrying persons or property for pay......” a borough may establish by ordinance a schedule of rates to be charged upon vehicles used in carrying passengers for hire, and such rates may be enforced against the operator of motor vehicles licensed by the State under the Act of April 27, 1909, E. L. 265, where such vehicles are used for the purpose of carrying passengers for pay.</p> <p>Mr. Justice Moschzisker dissents.</p>

<p>Equity — Religious societies — Church law — Church property— Moneys arising out of church property.</p> <p>1. So far as the canons of an ecclesiastical body are in conflict with the laws of the land they must yield to the latter, but when they do not so conflict, they must prevail.</p> <p>2. The absolute ownership of church property by the congregation, subject to the limitation that it shall not divert it from the uses with which it is impressed carries with it the-right of control of moneys arising out of the congregation for the maintenance of the property of the church. Other revenues paid by the members of the congregation for pious uses are governed by the law of the church.</p> <p>3. In a suit between the archbishop of a Catholic diocese and the congregation of a particular parish a decree enjoining the respondents from taking up a collection at the portals of the church and from interfering with the priest in the issuing of permits for the burial of the dead in the cemetery, will not be reversed where such decree is based upon legal conclusions, not assigned as error, that such collection is in conflict with the laws of the church and that under such law the priest has the sole and exclusive right to say who shall be buried in the cemetery belonging to the congregation, no law of the land being in conflict therewith.</p> <p>4. In such case it appeared that part of certain moneys in controversy arose out of the sale of lots in cemeteries and for the purchase of permits of burial therein and as rental for the use of rooms in the basement of the church, the balance arising from other sources. Meld, that moneys from the first mentioned sources belonged to the congregation-for church purposes; and that other moneys arising from other sources belonged to the priest under the law of the church.</p>

<p>Negligence — Railroads—Passengers—Passenger alighting at intermediate station — Case for jury.</p> <p>1. A passenger upon a railroad train, who without objection by the company or its agents, alights at an intermediate station, which is a station for the discharge and reception of passengers, for any usual and reasonable purpose, intending to resume his journey when the train starts, does not forfeit any of his rights as a passenger.</p> <p>2. In an action by a passenger against a railroad company to recover damages for personal injuries it appeared that the plaintiff got off the car in which he was riding when the train was stopped at a water tank in a railroad yard, not a station, and was injured by stepping into an opening between the girders of a bridge upon which the train was standing. The plaintiff testified that when the train left the last station before the accident a trainman announced that the next stop would be a certain station; that when the train stopped he supposed he was at the station; and that while on the platform of the car he saw a light nearby which he supposed was at a station, and because of the darkness he saw nothing to indicate that the station had not been reached. Plaintiffs purpose in leaving tbe car was not disclosed and it did not appear that he did not intend to end his journey at the next station. Held, that the case was for the jury, and binding instructions for the defendant were properly refused.</p>

<p>Appeals — Assignment of error — Ruling on evidence — Failure to cite testimony.</p> <p>1. An assignment of error to the overruling of an objection to testimony will not be considered where the assignment does not quote the evidence submitted.</p> <p>Evidence — Testimony—Answer partially responsive — Motion to strike out.</p> <p>2. It is not error to deny a motion to strike out the whole of a witness’ answer to a question where no objection was made to the question and part of the answer was responsive.</p> <p>Contracts — Building contract — Substantial performance — Defective work — Arbitration clause — Dereliction of architect — Question for jury.</p> <p>3. In an action to recover a balance claimed to be due on a contract fox the erection of a building it is not error for the court to affirm a point, which was in substance that if the plaintiff had with honest intent substantially performed the contract, failure in slight particulars would not prevent him from receiving fair compensation with due allowance to the plaintiff for any loss or damage suffered, where the testimony of plaintiff’s witnesses went to show that the building in question was substantially finished with reasonable promptitude, and the detailed statement filed by the defendant for expenses alleged to have been incurred by reason of incomplete or defective work shows that the alleged failure of plaintiff was in comparatively unimportant particulars.</p> <p>4. In such a case questions arising between contracting parties not included in the arbitration clauses, or questions raised relating to failure or dereliction in the performance of duties of the architects themselves, are for the jury, and the right to have these matters so passed upon cannot be denied upon the ground of failure to arbitrate.</p> <p>5. In such a case where it appeared that the defendant had not taken advantage of a provision of the contract to terminate the same under the certificate of the architect, and the dispute is as to what was done by the plaintiff and whether or not the defendant was justified in refusing to accept the work, or in having part of it done over at the expense of the plaintiff, and the controversy is mainly as to the conduct of the architect himself, there being evidence tending to show that he was capricious and unreasonable in refusing to approve of work that had been done in strict accordance with his directions, the question is for the jury and the latter is properly instructed that the arbitration clause in the building contract referred to questions arising between the contractor and owner and not to questions that concerned the performance of duties by the architect himself.</p>

<p>Appeal, No. 364, Jan. T., 1912, by defendant, from judgment of C. P. Lehigh Co., April T., 1912, No. 47, on verdict for plaintiff in case of William McNabb v. Clear Springs Water Company.</p> <p>Trespass to recover damages for personal injuries. Before Trexler, P. J.</p> <p>Opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,450.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was refusal to enter judgment for defendant.</p>

<p>Appeal, No. 348, Jan. T., 1912, by defendants, from judgment of C. P. Delaware Co., June T., 1911, No. 229, on verdict for plaintiff in case of Emma C. Sanson, Executrix of Eugene M. Sanson, deceased, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The accident occurred on March 17, 1910.</p> <p>Verdict for plaintiff for $2,650.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, was refusal to enter judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 305, Jan. T., 1912, by A. D. Wylie and G. W. Gilbert, et al., petitioners, from judgment of Q. S. Lackawanna Co., Dec. Sessions, 1911, No. 207, quashing petitions in re contested election of the Fifth Ward of the City of Carbon-dale, Etc., office of Poor Director.</p> <p>Petition for contest of an election. Before New-comb, J.</p> <p>At the election on November 7, 1911, in the Fifth Ward of the City of Carbondale there were two candidates for the office of poor'director in said ward, namely, Patrick Flannelly and Fred Sluman. On the face of the returns Patrick Flannelly was elected. After the election, a number of citizens of the ward presented a petition alleging that they were qualified electors who voted at the election and that in connection with said election a number of frauds were committed. A motion to quash was filed by Patrick Flannelly. Court sustained the motion to quash the petition. Petitioners appealed.</p> <p>Error assigned was the action of the court in quashing the petition.</p>

<p>Trusts and trustees — Deed of trust — Appointment of trusUe— Appointment ~by donee of power to appoint — Act of June Ik, 1886, P. L. 628.</p> <p>Where a husband and wife execute a deed of trust of real estate for the benefit of the wife for life and upon her death for the benefit of her husband, and upon the death of the survivor, over to their children then living in fee, and the deed gives to the wife power to appoint a trustee in case of a vacancy in the office, with power in the children if the wife fails to appoint to apply to the Court of Common Pleas for the appointment of a trustee, the wife may exercise the power to appoint even after an application has been made to the Common Pleas; and her right to exercise such power by the appointment of a proper trustee, is not defeated because she had neglected for a time to make an appointment, or because she had collected the rents, and applied them to her own use, or because she had paid to her husband in his lifetime certain moneys of the estate which he had lost.</p>

<p>Appeal, No. 381, Jan. T., 1912, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March T., 1912, No. 1169, making absolute rule to open judgment in case of Benjamin Finberg v. Isaac Burkhardt.</p> <p>Rule to open judgment.</p> <p>The facts are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to open judgment.</p>

<p>Contracts — Construction—Consideration of the whole instrument — Municipal contract — Paving—Assessment bills.</p> <p>1. It is a settled rule of interpretation, to which there is no exception, that if possible a contract must be so interpreted as to give effect to all of its provisions. The construction of an agreement, which gives effect to the manifest intention of the parties and is not clearly at variance with the language of the whole instrument, should be adopted.</p> <p>2. The purpose in construing all contracts is to ascertain the intention of the parties, and when that is done by a general survey of the whole writing such intention cannot be defeated by the language in any one part of the instrument which standing alone, would lead to a contrary or different conclusion.</p> <p>3. Where a municipal contract for paving provides in express terms that the city “shall pay for paving the intersection of cross streets and in front of unassessable property in warrants,” and that for all other work the contractor should receive assessment bills on abutting property, which bills should be accepted as cash without recourse to the city if the bills should prove to be invalid, the acceptance by the contractor, under a misapprehension both by himself and the city, of assessment bills against non-assessable railroad property, will not preclude the contractor from collecting from the city in cash the amount represented by such assessment bills.</p>

<p>Appeal, No. 285, Jan. T., 1912, by defendant, from judgment of O. & T., Philadelphia Co., Jan. S., 1911, No. 628, on verdict of guilty of murder of the second degree in case of Commonwealth v. Mary E. Kalck.</p> <p>Indictment for murder. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned, among others, was in sentencing the prisoner to imprisonment for a period of not less than fifteen years nor more than twenty years from the date of commitment.</p>

<p>Appeal, No. 310, Jan. T., 1912, by plaintiff, from decree of C. P., Huntingdon Co., May T., 1911, No. 137, refusing to set aside receiver’s sale in case of Theodore L. Chase v. George W. Fisher, purchaser, and W. H. Trude, receiver of the Ashville Coal & Coke Company.</p> <p>Petition to set aside receiver’s sale. Before A. W. Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was decree refusing to set aside receiver’s sale.</p>

<p>Appeal, No. 227, Jan. T., 1912, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1907, No. 5095, on verdict for plaintiff in case of Josiah Brown v. Armstrong & Latta Company, Incorporated.</p> <p>Trespass to recover damages for personal injuries; Before Kinsey, J.</p> <p>At the trial it appeared that the plaintiff was employed by the defendant as a laborer on certain bridge work at Ocean City, New Jersey, and that on April 14, 1907, while unloading a car of lumber in obedience to an order, he was injured. The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Plaintiff presented these points:</p> <p>1. “It is the duty of the employer to provide reasonably safe instrumentalities for the employee in and about the particular work he is to do.</p> <p>Answer: “That is true as a principle of law; and I affirm it. (3)</p> <p>2. “The servant is not required to act on his own judgment against that of his employer, and if the latter gives him positive instructions to go on with a particular task, he may recover for any injury received if the work was not imminently dangerous.</p> <p>Answer: “That I affirm. (4)</p> <p>3. “It is the duty of the employer to instruct the employee as to any latent defect or hidden danger.</p> <p>Answer: “That I affirm. (5)</p> <p>5. “It is the employer’s absolute duty to see that his employees are supplied with reasonably safe instructions for the work they are given to do. He cannot relieve himself of responsibility by delegating this duty to another, when he delegates duty he must see to it, at his peril, that the duty is performed. Failure on the part of the representatives or substitutes because of disregard of instructions is the failure of the principal. (Authorities quoted, Carr v. General Fire Extinguisher Co., 224 Pa. 346; Groves v. McNeil, 226 Pa. 345; Franczak v. Nazáreth Cement Co., 42 Pa. Superior Court 263.)</p> <p>Answer: “I affirm that.” (6)</p> <p>The court charged in part as follows:</p> <p>“If you find that Bob Beamer was acting specifically and directly in the nature of a vice principal, for defendant — that is, authorized to represent the principal and had entire authority, and was there superintending that work, and had knowledge of this danger, and that knowledge, through him, was brought home to defendant, to make liability — if you find all those things after due and careful consideration, you will then approach the subject of damages, the amount of your verdict, if you should find for plaintiff.” (7)</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned among others were (3-7) above instructions quoting them.</p>

<p>Appeal, No. 248, Jan. T., 1912, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1909, No. 541, on verdict for plaintiff in case of Thomas Kelly v. Henry Bower Chemical Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Magill, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for |2,000. Defendant appealed.</p>

<p>Appeal, No. 23, Oct. T., 1913, by defendant, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 1391, on bill in equity in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins.</p> <p>Bill in equity to declare a trust of real estate. Before Shaker, J.</p> <p>The bill averred that James A. Cockins, the defendant, was the surviving husband of Marianna M. Cockins, who died on March 6, 1907, leaving to survive her her husband, and her brother and sister the complainants. The bill showed on its face that certain of Mrs. Cockins’ real estate was situate in Allegheny County and other parts of it in Baltimore, Maryland. The defendant was a resident and citizen of California. The bill prayed that the defendant be declared a trustee of all his deceased wife’s real and personal estate. The defendant entered a general appearance, filed an answer containing a general denial of liability, and appeared in person as a witness in his own behalf at the trial. Other facts appear by the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>And now, to wit, June 1st, 1912, this cause came on to be heard further at this term and to be argued by counsel and upon consideration thereof, it is ordered, adjudged and decreed as follows, to wit:</p> <p>First. That the last will and testament of Marianna M. Cockins, wife of James M. Cockins, defendant herein, dated February 6,1904, probated in the Orphans’ Court of the City of Baltimore, State of Maryland, and registered in the office of the register of wills of Allegheny County, Pennsylvania, in Will Book, Vol. 90, page 490, in the bill herein mentioned, wherein and whereby the said Marianna M. Cockins provided as follows, to wit:</p> <p>“After payment of all my just debts, I will, devise and bequeath unto my beloved husband, James M. Cockins, his heirs and assigns, forever, all my estate and property, of whatsoever character and wheresoever situate of which I may die seized or possessed or may be entitled to at my decease.”</p> <p>was procured by the said Jamés M. Cockins upon his promise, made at the request of his said wife at the time of the execution of said last will and testament, that he would hold or claim to hold the estate of his said wife, so apparently devised and bequeathed to him absolutely, for and during the term of his natural life only, and subject to his said life estate, for the use and benefit of her half-brother and half-sister, Horace J. Miller and Adelaide M. Blick, their heirs and assigns, in equal shares.</p> <p>Second. That said defendant, James M. Cockins, does hold all the property, real, personal and mixed, which he received or may receive from his said wife’s estate for his life only, and subject to such life estate, for the use and benefit of Horace J. Miller and Adelaide M. Blick, the plaintiffs herein, their heirs and assigns, in equal shares, with the right to receive such remainder at the death of said James M. Cockins.</p> <p>Third. That the said defendant, James M. Cockins, shall and do forthwith execute and deliver to the plaintiffs herein a declaration declaring the said trust in relation to the estate of the said Marianna M. Cockins, deceased, found to exist under the terms of this decree, as hereinbefore set forth, and that he do execute and acknowledge such declaration of trust in such form that the same may be duly recorded wherever there is any real or personal estate of which the said Marianna M. Cockins died seized or possessed, affected by this decree.</p> <p>Fourth. That the said defendant, James M. Cockins, shall and do forthwith deliver to the plaintiffs herein a full and specific statement, verified by his affidavit, of all the property, real and personal, of which the said Marianna M. Cockins died seized or possessed, and at the time of delivering such statement to the said plaintiffs herein, shall file in this honorable court a full, true and correct duplicate thereof.</p> <p>Fifth. That should the said James M. Cockins omit to deliver and file a statement, under oath, of all and singular the estate of said Marianna M. Cockins, deceased, real and personal, wheresoever the same may be, as hereinbefore ordered and decreed, for the period of fifteen days from the date hereof, or should said defendant file and deliver such statement and the plaintiffs dispute the correctness thereof, then in either of said events, it is ordered. that testimony be taken .by this court, at a time to be fixed for that purpose, as to the nature and situation of all such property and the investment and custody thereof, and that thereupon such further measures for the control, custody and security of said property be taken as shall appear to be necessary.</p> <p>Sixth. That as to all and singular the personal estate of every kind and description and wheresoever it may be, whereof Marianna M. Cockins died possessed the Commonwealth Trust Company of the City of Pittsburgh is hereby appointed trustee in the place and stead of James M. Cockins, who is hereby ordered and directed to assign, transfer and deliver unto said trust company all and singular the said personal estate of which said Marianna M. Cockins died possessed so as to vest the same in the . said Commonwealth Trust Company upon the trusts declared in this decree, to wit: for and during the life of said James M. Cockins, and subject to such life estate, for the use and benefit of Horace J. Miller and Adelaide M. Blick, the plaintiffs herein, their heirs and assigns, in equal shares.</p> <p>Seventh. That the said James M. Cockins be now, and he is hereby perpetually enjoined and strictly prohibited, from delivering over possession of any such property to any person or from assigning any interest therein otherwise than for his lifetime.</p> <p>Eighth. That the injunction heretofore granted against the said James M. Cockins and the other defendants herein be and the same is hereby continued and made permanent.</p> <p>Ninth. That either party may apply from time to time to the court, as occasion may arise, in aid and furtherance of this decree.</p> <p>Tenth. That the said James M. Cochins pay the costs of this proceeding, including the costs in the appeal to the Supreme Court.</p> <p>On a petition for an attachment and writ of sequestration Shaper, J., filed the following opinion:</p> <p>The decree herein commanded the defendant to deliver to the plaintiffs a full statement of all the property real and personal of which his wife died seized, and a trustee was appointed in place of James M. Cochins, of the personal estate of his wife; and afterwards a time was fixed for the taking of testimony in relation to the real and personal estate of which Mrs. Cochins died seized and possessed, and an order was made upon the defendant, James M. Cochins, to deliver a full and specific statement of all such property before the time of the hearing, all of which were served upon the defendant, who resides out of the Commonwealth. At the time fixed for hearing the parties appeared, the defendant appearing by his counsel who denied any jurisdiction of the court over James M. Cockins personally and admitted that no statement had been rendered by him as directed, and stated that he respectfully declined to do so, because he claimed that the proceedings in this suit did not apply to or affect any of the property of his deceased wife which was not within the Commonwealth of Pennsylvania at the time the proceeding was begun, or at any time since; and that the decree and order of court in this case is to be confined to such property. The defendant’s counsel thereupon offered in evidence proceedings in the Orphans’ Court of Allegheny County and in the Orphans’ Court of the City of Baltimore, Maryland, showing an inventory of the estate of Mrs. Cockins, and also furnished a list of mortgages of properties in Pennsylvania held by her, and shares of stock in banks and other corporations of Pennsylvania held by her, and also gave a statement of the real estate of Mrs. Cockins in the State of Pennsylvania, admitting that there was real estate out of Pennsylvania which was not described. It is of course understood by the parties and the court that this refusal of the defendant is not out of any disrespect to the order of court, but because of his claim as to the law, and because of his being advised by counsel that to accede to the terms of the order might be a waiver of his position and that this proceeding is deemed necessary by his counsel in order to enable him to raise the question as to the extent of the decree.</p> <p>Being of opinion, upon an examination of the record of this case, that the effect of the proceedings had was to bring James M. Cochins personally within the jurisdiction of the court, and to subject the whole of the estate declared to be a trust in him to the jurisdiction of the court, we deem the plaintiff to be entitled to the relief prayed for, that is, to a writ of attachment and a writ of sequestration.</p> <p>It is, therefore, ordered that a writ of attachment and a writ of sequestration issue as prayed for in the petition of October 19th, 1912, and Donald Thompson is hereby appointed such sequestrator.</p> <p>Errors assigned were the various decrees and orders of the court.</p>

<p>Appeal, No. 264, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1910, No. 5637, for defendant non obstante veredicto in case of Burney Axe, trading as B. Axe & Company, v. Fidelity & Casualty Company of New York.</p> <p>Assumpsit on a policy of burglary insurance. Before Willson, P. 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 the plaintiff for $2,105. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Practice, G. P. — Pleading—Rule to suppress statement of claim —Affidavit of defense.</p> <p>' T. Where. a defendant -files an affidavit of defense, and this is fqllowed by. a.rule on the-part of the plaintiff for judgment for want of ,a sufficient .affidavit of defense, the defendant has no standing thereafter to petition the court to suppress the statement because it was not concise and contained unnecessary recitals of evidence. The, filing of the affidavit of defense was an abandonment of the defendant’s right to attack the regularity or sufficiency of the statement.</p> <p>2. In such a case where the court below makes an order suppressing the statement, and thereafter discharges the rule for judgment, without argument and without' passing upon the merits of the plaintiff’s claim or the sufficiency of defendant’s affidavit, the appellate court will reverse both orders and award a procedendo, so the parties may take such orderly procedure as they may desire.</p> <p>3. A statement of claim should aver clearly and concisely such facts as, if not successfully controverted, would entitle the plaintiff to a verdict. It should not include immaterial matter or the evidence by which the claim is to be sustained; and it should be as comprehensive, but as brief, as the averments of the material facts will permit. Per Mestrezat, J.</p>

<p>Courts — Federal and State Courts — Jurisdiction—Bonds—Bonds to secure sub-contractors on government work — Statutes.</p> <p>1. Under the Acts of Congress of August 13, 1894, Chapter 280, 28 Stat. 278, and Aug. 13, 1894, Chapter 282, See. 5, 28 Stat. 279, the State Courts have concurrent jurisdiction with the Federal Courts over suits brought on bonds given prior to the Act of Congress of February 24,1905, 33 Stat. 811, by government eontractor§ to secure payment of sums due to sub-contraetors and materialmen.</p> <p>2. Tbe Act of Congress of February 24, 1905, 33 Stat. 811, giving the Federal Courts exclusive jurisdiction over suits on bonds given by government contractors to secure sub-contractors and materialmen, does not relate to or affect an action brought in a State Court by a sub-contractor whose rights accrued under a bond and contract executed prior to its passage; and the jurisdiction of the State Court will not be ousted by the fact that part of the labor and materials were furnished subsequent to the passage of the Act of 1905, if it appears that they were furnished in pursuance of the provisions of the original contract.</p>

<p>Appeal, No. 202, Jan. T., 1912, by plaintiff, from order of C. P. No. 1, Philadelphia Co., Dec. T. 1909, No. 4751, refusing to take off nonsuit in case of Katharine Becker v. Second Active Building Association.</p> <p>Assumpsit on a contract. Before Bregy, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial when the plaintiff was on the stand the defendant asked for an offer of proof.</p> <p>Mr. Byron: We have on record a great many admissions which really bring the case down to a close point as to whether or not there was any agreement of exchange — as to what the agreement was. There is nothing in it with regard to the building association causing the $8,500 mortgage to be released as to the premises which Mrs. Becker retained — the southwest corner of Tioga and Amber streets. I want to prove that she was induced to sign that agreement of exchange because of a verbal agreement made contemporaneously with John C. Geuther, the authorized representative of a building association, to cause the $8,500 mortgage which had been upon her remaining property to be released.</p> <p>The Court: Do I understand you to mean that Mr. Geuther had authority from the building association to make an agreement to release the mortgage?</p> <p>Mr. Byron: Yes, sir; implied authority. He had authority to so agree.</p> <p>The Court: You will have to prove that first — that he had that authority.</p> <p>Mr. Byron: My offer is to.prove by the witness that the oral agreement was made by Mr. Geuther which induced her to sign the written agreement; and that Mr. Geuther did so by authority of the building association.</p> <p>(Objected to by Mr. Ballou.)</p> <p>(Objection sustained.)</p> <p>(Exception for plaintiff.)</p> <p>Mr. Byron: I suppose that rules out my offer to prove by the witness the collateral agreement of the building association?</p> <p>The Court: My thought is that the agreement for the sale of the real estate must be in writing, that the agreement for this sale is in writing and that you cannot prove orally anything inconsistent and different from the written agreement; and for that reason I sustain the objection and give you an exception.</p> <p>Mr. Byron: Then I cannot go on. That is my case and I close.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were ruling on above offer quoting the bill of exceptions, and in refusing to take off nonsuit.</p>

<p>Appeal, No. 158, June T., 1912, by defendant, from judgment of C. P. Montgomery Co., Oct. T., 1910, No. 276, on verdict for plaintiff in case of Henry K. Hartzell v. Ebbvale Mining Company.</p> <p>Assumpsit on promissory notes. Before [We And,' J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Yerdict and judgment for plaintiff for $2,337.87. Defendant appealed.</p> <p>Errors assigned were various ruling on evidence and instructions.to the jury.</p>

<p>Appeal, No. 395, Jan. T., 1912, by plaintiff, from judgment of C. P. Lehigh Co., Sept. T., 1912, No. 10, on verdict for defendants in case of John F. Weiler, Assignee of Alfred J. George, v. Ellen George and Alfred J. George, Executors of Jonas George, deceased.</p> <p>Assumpsit upon a promissory judgment note in the hands of an assignee. Before Trexler, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and instructions to the jury.</p>

Appeal, No. 411, Jan. T., 1912, by Ida V. White, Alice G. Hill, Cyrus A. Byers, Emma Y. Mitchell and Norristown Trust Company, Guardian of Charles A. Byers, a minor, from decree of O. C. Montgomery. Co., July Court, 1912, No. 16, dismissing exceptions and confirming appraisement in the matter of the Estate of Florence P. Buckland, deceased.

<p>Wills — Construction—Gift with power of consumption — Burden of proof.</p> <p>Testator by will provided: “I give and bequeath to my beloved wife, Jemima Welsh, the sum of fifty thousand dollars ($50,000.00) absolutely; it is my desire that whatever, if any, part of said legacy of fifty thousand dollars remain unused at the death of my said wife, be divided equally at the time of her death among my four children hereinbefore named.” After the death of the widow it appeared at the audit of her estate that the legacy had been paid to her, and that since the death of decedent she had been in receipt of a large income from other sources, more than sufficient to defray her personal expenses. Her estate at her death was in excess of the amount of the legacy above mentioned. There was no evidence, however, that any part of the legacy was left at her death. Held, under these circumstances the presumption is that the widow used the legacy; the burden of proof is on claimants to show that any of it was left at her death, and in the absence of such evidence it is to be presumed that she used all of it.</p>