Volume 252 — Pennsylvania State Reports

<p>Appeal, No. 169, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Oo., Jan. T., 1914, No. 2268, on verdict for plaintiff, in case of Frank Siever v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Shafer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $10,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, and the refusal of the court to direct a verdict for defendant.</p>

<p>Appeal, No. 188, Oct. T., 1915, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1914, No. 1429, for defendant upon the whole record in case of Albert H. Klingmann v. The Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Carpenter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury disagreed, and the court entered judgment for defendant upon the whole record. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 194, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1914, No. 276, on verdict for plaintiff, in case of H. M. Frankel v. J. T. Norris.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points, instructions to the jury, and the refusal of the court to direct a verdict for defendant.</p>

<p>Eminent domain — Municipalities—Change of grade — Evidence —Irrelevant evidence — Damages—Compensation for delay in payment.</p> <p>1. At the trial of an appeal from an award of viewers in change of grade proceedings, the admission in evidence of a prior ordinance establishing a paper grade, but under which no work was done, and which was repealed by another ordinance establishing a new grade, under which the work was done, was reversible error, particularly where such ordinance was offered not only for the purpose of showing that a change of grade had been made, but also for the purpose of showing the difference in elevation between the grades of the earlier and later ordinance, as the jury might have thereby been led to infer that the borough was juggling with the grade in front of plaintiff’s property and that this was a wrong done plaintiff.</p> <p>2. In such case the court did not err in charging that the jury could add to the damages as compensation for delay a sum- not exceeding six per cent, per annum from the date of the physical change of grade.</p> <p>Hoffman v. Philadelphia, 250 Pa. 1, followed.</p>

<p>Appeal, No. 203, Oct. T., 1915, by plaintiffs, from decree of O. P. Allegheny Co., April T., 1915, No. 986, in equity, refusing injunction, in case of George S. Bubb, William C. Bubb, Sarah B. Shaeffer, Clara A. Bubb, Charles K. Brown, Guardian of the Estates of Edward J. Bubb, III., Mildred J. Bubb, and George W. Bubb, Minors,- v. The Parker & Edwards Oil Company, a Corporation, and Spang & Company, a Corporation.</p> <p>Bill in equity for an injunction. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 212, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1913, No. 484, on verdict for plaintiff in case of Anna McLaughlin v. Pittsburgh* Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Shaper, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $1,730.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the charge of the court.</p>

Appeal, No. 216, Oct. T., 1915, by Benjamin Pearlman, from decree of O. O. Allegheny Co., May T., 1914, No. 92, dismissing exceptions to decree of distribution in Estate of Hyman Browarshy. Exceptions to decree of distribution of a decedent’s estate. Before Trimble, J. The facts appear by the opinion of the Supreme Court. The court surcharged the administrator, Benjamin Pearlman, in the sum of $5,448.26. The administrator appealed.

Appeal, No. 222, Oct. T., 1915, by defendant, from judgment of C. P. Allegheny Co., July T., 1913, No. 153, on verdict for plaintiff in case of Charles H. Read v. Van Horn Ely. Assumpsit to recover commissions on the sale of certain stock and bonds. Before Brown, J. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $11,273.34 and judgment thereon. Defendant appealed.

<p>Mechanics’ liens — Agreement of sale — Improvements ordered by intended purchaser — Mechanics’ Lien Act of June 1,1901, P. L. J^Sl —Notice—Acceptance by attorney — Fraud—Practice, O. P.</p> <p>1. Unless a claimant brings his case within Section 4, of the Mechanics’ Lien Act of June 4, 1901, P. L. 431, making liable an owner who shall suffer or permit any person, acting as if he were the owner, to make a contract for which a claim can be filed, without objecting thereto at the time, the lien attaches only to the interest or estate in the premises of the person for whom the building is erected.'</p> <p>2. Compliance with Section 21 of such act, requiring the claimant within one month after the filing of the claim to serve a notice upon the owner of the fact of the filing of the same, and to file an affidavit setting forth the fact and manner of such service, is a prerequisite to the validity of the lien. The acceptance of service by the attorney of a defendant is insufficient.</p> <p>3. In a proceeding on a scire facias sur mechanics’ lien it appeared that one of the defendants had entered into an agreement with the other for the sale of the former’s house and lot to the latter at a stipulated price, a small payment being made at the time of the agreement, the delivery of the deed and payment of the balance to take place five months later; that a month later plaintiff entered into an agreement with the purchaser to provide all materials and perform the work of remodeling the building; that the balance of the purchase-money of the property was not paid when due and the sale was not completed at that time, and thereafter the owner leased the property to the intended purchaser with an option to purchase. After the completion of the work plaintiff filed a mechanics’ lien, making the owner and intended purchaser parties defendant. No notice of the filing of the claim was given to the intended purchaser himself, but notice was accepted by his attorneys. It appeared that the owner frequently visited the premises during the progress of the improvements. Held, the lower court did not err in giving binding instructions for the owner and in subsequently granting tbe vendee’s motion for judgment non obstante veredicto.</p> <p>4. In sucb case where tbe plaintiff bad full knowledge of tbe relations of tbe owner and intended purchaser, tbe latter of whom was in possession and bad an equitable interest therein, no liability was imposed upon tbe legal owner under Section 4, of tbe Act of June 4, 1901, P. L. 431; and plaintiff’s contention that there was a conspiracy between tbe defendants to defraud him was unsupported by tbe evidence.</p>

<p>Appeal, No. 205, Oct. T., 1914, by plaintiffs, from judgment of O. P. Allegheny Co., June T., 1910, No. 868, on directed verdict for defendant in case of L. M. Herrington and J. A. Williams v. Booth & Flinn, Limited.</p> <p>Trespass to recover damages for cave-in of land caused by excavation of public street. Before O’Connor, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the defendant, by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was in giving binding instructions for the defendant.</p>

<p>Appeals, Nos. 52 and 53, Oct. T., 1915, by defendant, from judgment O. P. Allegheny Co., Jan. T., 1913, No. 1520, on verdict for plaintiff in case of Frances Saunders and Alexander Saunders v. Pittsburgh Railways Company.</p> <p>Trespass for personal injuries. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Frances Saunders, in the sum of $2,500, and for plaintiff, Alexander Saunders, in sum of $1,000, and judgments thereon. Defendant appealed.</p> <p>Errors assigned were the charge of the court and the rulings on evidence referred to in the opinion of the Supreme Court.</p>

<p>Practice, Supreme Court — Appeals—Questions considered on appeal — Defenses—Discharge in "bankruptcy.</p> <p>1. Where in an action to recover damages for a conversion of certain bonds and stock, evidence of defendants’ discharge in bankruptcy is excluded at plaintiff’s instance and on the argument of defendants’ motion for judgment n. o. v. the sole question raised and discussed was whether the defendants were released by such discharge, plaintiff cannot on appeal complain that the court below treated the discharge as being in evidence and considered it in disposing of the motion- for judgment.</p> <p>Conversion — Stocks and "bonds — Broker—Defenses—Discharge in bankruptcy — Bankruptcy Act of July 1, 1898, Section 17 — General issue — E'vidence-—Practice, C. P.</p> <p>2. A claim against a broker for the conversion of certain stock and bonds is provable in bankruptcy and a discharge is a release of the claim. The provable debts that are excepted from the benefit of a discharge under the Bankruptcy Act of July 1, 1898, c. 541, 30 U. S. Stat. 544, Section 17, sub-divisions 2 and 4, are those which are fraudulent, etc., and have been reduced to judgment at the time of the discharge.</p> <p>3. A discharge in bankruptcy in such case is provable under the plea of not guilty.</p>

<p>Appeal, No. 83, Oct. T., 1915, by plaintiff, from judgment of O. P. Allegheny Co., Jan. T., 1915, No. 857, sustaining defendant’s demurrer to plaintiff’s statement of claim and entering judgment thereon in case of Alexander McDowell, Jr., v. John L Wilson, John H. Porter, Herman Bruder, Donald Clark, Thomas Wallace and Joseph B. Dilks.</p> <p>Trespass to recover damages for expulsion from a church office. Before Swearingen, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court sustained a demurrer to the statement of claim and entered judgment for defendants. Plaintiffs appealed.</p> <p>Error assigned was in sustaining the demurrer to plaintiff’s statement of claim, and the judgment of the court.</p>

<p>Appeal, No. 84, Oct. T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1915, No. 1038, for plaintiff on demurrer to plaintiff’s statement of claim in case of Alexander B. Scott v. John B. Wilson, John H. Porter, Herman Bruder, Donald Clark, Thomas Wallace and Joseph B. Dilks.</p> <p>The facts appear in McDowell v. Wilson, 252 Pa. 91.</p>

<p>Appeal, No. 101, Oct. T., 1915, by Henry Kendall Thaw., from decree of O. C. Allegheny Co., Dec. T., 1914, No. 179, dismissing exceptions to trustee’s account in Estate of William Thaw, deceased.</p> <p>Exception to trustee’s account. Before Trimble, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Henry Kendall Thaw appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 112, Oct. T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1912,' No. 880, on verdict for defendants in case of The Title Guaranty & Surety Company, a corporation, v. IT. E. Lippincott, Franklin P. lams and Thomas C. Gabler.</p> <p>Assumpsit on indemnity bond. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for defendant by direction of the court, and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and in directing a verdict for the defendants.</p>

<p>Affidavit of defense — Sufficiency—Contracts — Subcontractor — Abandonment of work — Completion of work by defendant — Superintendence of work.</p> <p>1. In an action by a subcontractor against a contractor to recover a balance alleged to be due on work done on a railroad, an affidavit of defense was sufficient which set up that the plaintiff had abandoned the work, that defendant, as provided by the contract between them, completed it, placing in charge his general superintendent and assistant superintendent, who devoted a large part of their time to the direction of the work, and for such superintendence defendant charged a proportionate part of their salaries.</p> <p>2. Whether it was necessary for the contractor to have his superintendent and assistant superintendents devote a portion of their time to the supervision of the work and, if so, how much, will be questions for a jury, as will be the reasonableness of the charge which he makes for such services, for he cannot make an arbitrary or unreasonable charge for them.</p>

<p>Appeal, No. 131, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., July Term, 1913, No. 1318, on verdict for plaintiff in case of Dixie Williams v. Ludwig Floral Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for |2,250.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Municipalities —- Street railways ■ — Ordinances — License tax • — ■ Consideration for the use of streets.</p> <p>1. The Constitution secures to all municipal corporations the exclusive right to either refuse or consent to the construction of street railways within, their limits. Where consent is given the municipality may attach to its consent such terms and conditions as it may deem proper and if the railway company accepts those conditions it is bound by them and must discharge all duties and obligations imposed upon it by the ordinance granting such consent.</p> <p>2. A borough passed an ordinance granting the right to a street railway company to construct and operate its railway on certain borough streets, the ordinance providing that no license for “borough purposes” should be levied upon the company until the expiration of five years after it began to operate its railway, “and after the expiration of said period of five years said company shall pay into the borough treasury such sums as license as council may hereafter provide for.” After the expiration of the five-year period and after the borough had been incorporated into a city, the city passed an ordinance providing that the railway company should pay for license to the city the sum of $8,000.00 per annum. In an action by the city against the railway company to recover the license charge for certain years, the company defended upon the ground that the provision of the ordinance referred to any general license that might be imposed upon railways and not to a license specifically imposed upon it, and further that the city as a city of the third class had no power to levy the license. Held, that the charge as made was not properly a license fee but was the eonsideration charged by the municipality under the contract for granting consent to the railway company to use and occupy ‘the city streets, and was therefore collectible.</p> <p>3. In such case where the affidavit of defense set up that the charge was excessive and unreasonable but when no testimony wa3 offered in support of such allegation it must be assumed that the amount fixed in the ordinance was reasonable.</p>

<p>Equity — Injunction—J urisdiction — Pro cedure — Taxation—Railroads — Common carriers — Real estate — Local taxation — Pleadings.</p> <p>1. Equity has jurisdiction to restrain the collection of taxes where there is want of power to tax or the tax is levied without authority at law.</p> <p>2. An injunction restraining a local taxing authority from the collection of taxes on land of a railroad company is properly granted where the evidence shows that the land in question is necessary, essential and indispensable to the exercise of the franchises of the company as a common carrier.</p> <p>3. Where any specific portion of such property is not taxable, the taxing officers are without warrant of law to impose and collect the tax on the nontaxable part, and their official acts are as void as to that part of the property as they would be if the taxes had been illegally levied against the entire holdings of the company.</p> <p>4. In such case while manifest want of jurisdiction in equity may be taken advantage of at any stage of the proceeding, yet as the question must be determined by what is averred in the bill and not by what is disclosed in the answer and the evidence in support of it, it should be raised in doubtful cases in limine, by’ demurrer, plea or answer.</p> <p>5. A bill in equity was filed by a railroad company against a local taxing authority to enjoin the collection of local taxes imposed by the taxing authority upon a portion of certain real estate held by the railroad company. It appeared that the railroad company under its charter was a common carrier and the chancellor found upon competent testimony that the portion of the ground as to which the railroad company claimed exemption was used by the railroad company for its railroad purposes and was necessary thereto. Held, that the relief prayed for was properly granted.</p>

<p>Decedents’ estate — Partnership—Collateral inheritance tax — Intestacy of partner — Partnership agreement — Beal estate — Cornersion.</p> <p>Decedent, a resident of New York, was at the time of his death one- of two partners composing a firm of grocery dealers with a main place of business in New York. A branch house owned by the firm was established and operated in Pittsburgh and the partners owned several pieces of real estate which were used in connection with the Pittsburgh business. These properties had been conveyed to them as'partners and “not as tenants in common.” The copartnership agreement provided that in the event of the death of either partner, the survivor should continue the business and pay the estate of the deceased partner his net interest in the same as of the date of the death, the value of the interest to be ascertained by taking an account of the stock and having the real estate appraised, the interest of the deceased partner to be paid for by the surviving partner in installments at certain periods. In an action by the Commonwealth for the purpose of collecting a collateral inheritance tax on the interest of the partnership assets of the Pittsburgh branch of the firm it was held that, under the partnership agreement, no interest in the partnership had passed to the estate of the decedent upon his death, but only a chose in action, a right to demand payment for the value of his interest in the partnership, and said chose in action did not pass to the next of kin of the deceased, but to his personal representatives as part of his personal estate having its situs in the State of New York, and that therefore the Commonwealth cannot collect such inheritance tax.</p>

<p>. Negligence — Master and servant — Mines and mining — Vicious mule — Assumption of rish — Contributory negligence — Case for jury.</p> <p>In an action by an employee against a mining company to recover damages for personal injuries sustained by the plaintiff as the result of one of defendant’s mules shying at a water pump in the mine, the case was for the jury and a verdict and judgment for the plaintiff will be sustained where it appears that the mule had on previous occasions kicked, balked and shied, and that such fact was known to the boss driver; that on the day of the accident plaintiff objected to using the mule in question and told the boss driver that on the previous night another mule had shied at the pump; that the boss assured him that the mule would not shy as “that was his regular haulage”; that when plaintiff came to the pump with the mule it shied and the accident occurred; that the boss driver, over whom the mine foreman exercised no control, had power to employ and discharge drivers, and testified that he had told plaintiff that the mule was safe in order not to discourage him.</p>

<p>Affidavit of defense — Insufficient averments — Evasive denials— Contracts.</p> <p>1. In an action by a maker of a note against one of the three other joint makers thereof, who had agreed that in the event of the plaintiff having to pay the face of the note and the other two makers not being of ability to contribute thereto, the defendant would be responsible for one-half of the note, an affidavit of defense is evasive and insufficient which merely denies that the other two makers were not of ability to contribute and fails to set up any affirmative defense.</p> <p>2. In such ease where the alleged forgiveness of such debt was without consideration it is not binding.</p>

<p>Appeal, No. 246, Oct. T., 1915, by defendant, from judgment of O. T. Allegheny Co., May Sessions, 1915, No. 24, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry J. H. Webb.</p> <p>Indictment for murder. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury and the ruling on evidence referred to in the opinion of the Supreme Court.</p>

<p>Negligence — Railroads — Pedestrian wallcing under bridge — Spilling of contents of cars — Res ipsa loquitur — Gase for jury.</p> <p>In an action by a pedestrian against a railroad company to recover damages for personal injuries, sustained by plaintiff while walking on a public street under defendant’s bridge, as the result of the derailment and overturning of freight ears and the spilling of their contents, the facts that the point where the derailment took place was a sharp curve and that the ordinary speed in rounding it was much less than at which the train was moving at the time of the derailment, were sufficient to justify the inference that either the tracks or cars were in a defective condition, or that the method of operating the train was faulty, and the court erred in directing a compulsory nonsuit.</p>

<p>Contracts — Beneficial association — Benefit certificate — By-laws— Amendment — Alteration- of contract.</p> <p>The obligation of a beneficial association to pay a bolder of a beneficial certificate tbe amount therein specified to be paid upon a contingency which has happened is not affected by an amendment of the association’s by-laws, made subsequent to tbe issuance of tbe certificate, changing the amount payable to a member, even where the member has agreed that compliance on his part with all the rules, regulations and requirements then in force or that might thereafter be enacted by the association was the express condition upon which he should be entitled to participate in the beneficiary fund.</p>

<p>Appeal, No. 155, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., April T., 1913, No. 185, on verdict for plaintiff, in case of Elizabeth Kleine v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,160.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were the charge of the court and in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 161, Oct. T., 1915, by defendants, from judgment of C. P. Allegheny Co., April T., 1915, No. 1446, making absolute rule for want of a sufficient affidavit of defense in case of William H. Stevenson v. Walter C. Mellor, George E. Mellor, and Charles A. Dickson, executors and trustees under the last will of C. C. Mellor, deceased.</p> <p>Assumpsit on written contract.</p> <p>Buie for judgment for want of a sufficient affidavit of defense. Before Davis, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The lower court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendants appealed.</p> <p>Error assigned was in making absolute plaintiff’s rule for judgment.</p>

<p>Eminent domain — Railroads—Improvements after talcing — Evidence — Damages—Witnesses—Experts—Competency—New trial.</p> <p>1. On appeal from an award of viewers in condemnation proceedings, tbe admission of evidence to show that subsequent to the appropriation, improvements had been made in the vicinity which tended to enhance the value of the land taken, as well as the admission of evidence that at the time of the trial, there was no other available real estate in the neighborhood to be obtained by defendant, was reversible error, as it may have influenced the jury to award damages on the theory that had defendant not taken plaintiff’s land, plaintiff would have gained the benefit of the improved conditions.</p> <p>2. In such ease the court made no err'or in permitting an expert witness to be questioned as to whether he had not acted for the railroad company in acquiring a large amount of property in the neighborhood prior to the date of the appropriation, as such question did not necessarily indicate, as contended by the defendant, that the witness was being interrogated about acquiring property for a “special purpose,” nor did the court abuse its discretion in refusing to permit the witness to be questioned on cross-examination, whether certain sales, which he had referred to as having taken place in the immediate vicinity, were not at a much less figure than the valuation placed by him on plaintiff’s property.</p> <p>3. In such case, it was error to permit an expert witness called for plaintiff to testify, over defendant’s objection, concerning the value of plaintiff’s property, where it appeared that the witness did not have such a knowledge of the holding or selling values of the properties in the neighborhood as the subject was reasonably susceptible of.</p>

<p>Contracts — Construction — Suretyship — Offer — Acceptance —■ Notice.</p> <p>1. A guaranty of a contract implies that it was a concurrent act and part of the original agreement. Where a guaranty of a lease bears even date therewith and is attached thereto, it will be presumed to have been accepted by the landlord when the lease was executed, and, in an action thereon, the jury is properly instructed that no further notice on the part of the landlord, of his acceptance of the guaranty, is necessary to fix the surety’s liability.</p> <p>Landlord and tenant — Distraint—Release of goods — Execution on fi. fa. — Bankruptcy of lessee — Partial payment.</p> <p>2. After a landlord has distrained for the rent of a hotel property, it is not an eviction if the landlord agrees with the lessee’s wife in the lessee’s presence, and with his acquiescence, that the wife should continue to conduct the hotel for a limited period.</p> <p>3. In an action against the surety on a lease, it appeared that plaintiff had proceeded against the property of a tenant under a fi. fa. and had thereafter upon a claim of property by the tenant’s wife released the goods and seized them under a landlord’s warrant, and that subsequently the lessee had been declared a bankrupt and that the property levied on had been seized by the Federal Court; defendant contended that it was discharged from liability by the release of the goods from the lien of the fi. fa. and also sought to set off against plaintiff’s claim the value of the goods which had been seized under the order of the Federal Court in the bankruptcy proceedings. The lower court decided that .the release of the goods from the fi. fa. and the levying of them under the landlord’s warrant was beneficial to the surety and did not discharge him from liability, and that the taking of the property by the Federal Court was a valid defense to defendant’s claim of set off, and allowed defendant credit for nothing more than the actual amount received by plaintiff from the trustee in bankruptcy. Held, no error.</p>

<p>Corporations — Sale of property to another corporation — Interlocking directorates — Account stated — Court and jury — Case for jury.</p> <p>1. Even though the hoards of directors of two corporations are the same and one buys the property of the other, the transaction is not void and will not be set aside at the instance of a stockholder unless he shows damage. A contract between two corporations will not be declared invalid merely because the corporations have common directors where its fairness is manifest. The fairness of such a contract is always open to investigation and subject to careful scrutiny.</p> <p>2. The gist of an action on an account stated consists in an agreement to, or acquiescence in, the correctness of the account, and in proving the account stated it is not necessary to show the nature of the original transaction or indebtedness, or to set forth the items entering into the account.</p> <p>3. A corporation transferred its property to three of its stockholders, who in turn conveyed the property to a newly organized corporation of which they were directors. For nearly four years entries were made on the hooks of both companies showing the indebtedness owing by the new corporation to the original corporation. In an action brought by the trustee in bankruptcy of the original corporation against the new corporation to recover the amount of such indebtedness, there was 130 allegation or proof of fraud on the part of the stockholders to whom the property of the original corporation had been conveyed; defendant contended that the transaction was void because the directors of defendant had been stockholders of the original corporation and also that at the time of the organization of the new corporation one of the directors individually agreed to assume the debt due the original corporation upon the understanding that the debtor company was to be released. The evidence as to whether the defendant had been released from liability as contended, was conflicting. The trial judge ruled that the fact that the indebtedness of defendant to plaintiff had been acquiesced in for nearly four years created a valid claim on behalf of plaintiff, and allowed the jury to determine whether the debt due plaintiff had been assumed by the director in such a way ,as to release the debtor company. The jury found a verdict for plaintiff upon which judgment was entered. Held, no error.</p>

<p>Actions — Parties defendant — Suit in wrong capacity — Pleading —Statement of claim — Trials—Technical errors — New trial — Refusal — Appeal—Practice, Supreme Court.</p> <p>1. In an action for a balance alleged to be due for work done under a written contract and also for an amount due under a parol agreement, the caption of papers in the case set forth the names of defendants, followed by the words “formerly trading and doing business as Cambria Lumber Company,” but the statement did not aver that the defendants had been partners; the affidavit of defense set up a counterclaim but did not deny the partnership liability ; plaintiff offered in evidence a contract executed by Cambria Lumber Company which did not show any individual liability on the part of defendants; defendants did not plead surprise and ask for a continuance, but defended the case on its merits. Held, that defendants knew that they were being sued as partners doing business as the eompany which had entered into the contract in question, and were not prejudiced by its introduction in evidence.</p> <p>Contracts — Evidence — Parol evidence rule ■ — Contemporaneous oral agreement.</p> <p>2. Parol evidence is admissible to show that at the execution of a written instrument a stipulation was entered into, a condition annexed, or a verbal promise made upon the faith of which the writing was executed, though it may vary or materially change the terms of the contract. In such cases it is not necessary to allege that the agreement was left out of the contract through fraud, accident or mistake.</p> <p>3. In such case it was not error to allow plaintiff to recover for hauling and stacking certain lumber in connection with which the work referred to in the written agreement was done, where it appeared that the written agreement was executed upon the faith of a parol agreement between plaintiff and defendants, that plaintifE would not be required to sort and stack the lumber and that several months after the written agreement was executed, defendants agreed that if plaintiff would sort the lumber and haul it, defendants would pay him an additional amount for so doing.</p>

<p>Appeal, No. 183, Oct. T., 1915, by plaintiff, from judgment of O. P. Allegheny Co., July T., 1914, No. 2361, on verdict for defendant non obstante veredicto in case of David D. Davies v.' City of Pittsburgh, Joseph G-. Armstrong, Mayor of the City of Pittsburgh; Robert Swan, Director of the Department of Public Works, and Homer E. Leslie, P. H. Frederick and Joseph F. Joyce, Civil Service Commissioners of the City of Pittsburgh.</p> <p>Petition for writ of alternative mandamus to reinstate plaintiff as chief clerk of the department of public works of the City of Pittsburgh, Before Shafer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff by direction of the court. The court subsequently entered judgment for the defendant non obstante veredicto. Plaintiff appealed.</p> <p>Error assigned, among others, was in entering judgment for the defendant n. o. v.</p>

Appeal, No. 166, Oct. T., 1915, by defendant, from judgment of C. P. Allegheny Co., July T., 1918, No. 1514, on verdict for plaintiff in case of Alice Carey Jackson Cannon v. Eobert George Jackson. Ejectment to recover an undivided half interest in a farm situated in the 14th ward of the City of Pittsburgh. Before Macfarlane, J. The opinion of the Supreme Court states the facts., Verdict for plaintiff and judgment thereon. Defendant appealed.

<p>Insurance — Fire insurance — Limitation of time for suit — Construction.</p> <p>A policy of fire insurance provided in effect that no action should be brought thereon unless commenced within twelve months next after the loss; an action on a policy was brought in the Common Pleas Court, which was removed to the Circuit Court of the United States where plaintiff recovered a verdict; on appeal the judgment was reversed, “but without prejudice to the right of the plaintiff below to bring such other suit as he may be entitled to prosecute in whatever forum may have jurisdiction thereof.” Thereafter, and more than twelve months after the loss, plaintiff brought a second action on the policy. The lower court directed a verdict for defendant and entered judgment thereon. Held, no error.</p>

<p>Real property — Conveyance—Deed—Construction—-Building restrictions — Unobstructed prospect — Bill in equity — Injunction.</p> <p>1. The general rule is that tbe language of a deed should be interpreted in the light of the apparent object or purpose of the parties and of the conditions existing when made.</p> <p>2. Certain lots in the residential section of a city were subject to a building restriction that the grantee “shall have the free and unobstructed right of light, air and prospect over and across the front of any other property now owned by the grantor” with the provision that the restriction should bind the heirs and assigns of both parties. At that time houses' were erected on the lots having open porches in front; subsequently the owner of one of the houses built a second and third story porch over the original porch. The owner of another of the houses, which, however, did not adjoin the one which was altered, whose view was interfered with by the new construction, brought a bill in equity to enjoin the violation of the restriction. The lower court directed the removal of the second and third story portion of the porch, and perpetually restrained defendant from erecting porches above the first story of the house. Held, no error.</p>

<p>Appeal, No. 209, Oct. T., 1915, by plaintiff, froa order of C. P. Allegheny Co., Oct. T., 1914, No. 1372, discharging the rule of plaintiff for judgment for want of a sufficient affidavit of defense, in case of James C. Chaplin, Trustee for himself, E. H. Jennings, John A. Bell, J. C. Reilly, James S. Kuhn, J. D. Callery, F. A. Griffin and William Flinn v. F. A. Griffin.</p> <p>Assumpsit on written contract. Before Swearingen, J.</p> <p>From the record it appeared that plaintiff’s claim was based upon the following agreement:</p> <p>“EXHIBIT ‘A’ — MEMORANDUM OF AGREEMENT</p> <p>Between James C. Chaplin, party of the first part (hereinafter called the ‘Trustee’) and William Flinn, Jas. S. Kuhn, Jas. D. Callery, E. H. Jennings, Jas. C. Chaplin, F. A. Griffin, John A. Bell and John C. Reilly, parties of the second part.</p> <p>“Whereas, the parties of the second part have purchased and are the owners of three hundred and ten (310) shares of the capital stock of-The Colonial Trust Company, which shares are in the name of James C, Chaplin, as trustee, said stock having been purchased at four hundred ($400.00) dollars per share; and</p> <p>“Whereas, for the purpose of carrying said stock in a pool until such time as the parties of the second part, or a majority of them, together with the party of the first part, may desire to dissolve said pool or to pro rate said stock, and</p> <p>“Whereas, the party of the first part has consented to act as trustee for himself and the parties of the second part in this transaction, and</p> <p>“Whereas, the parties of the second part do authorize the party of the first part to negotiate a loan or loans for the purpose of carrying said stock, and</p> <p>“Whereas, the party of the first part is willing to negotiate said loan or loans.</p> <p>“Now the condition of this obligation is such</p> <p>“That for and in consideration of one ($1.00) dollar paid by the parties of the second part to the party of the first part, the receipt of which is hereby acknowledged, the party of the first part will—</p> <p>“First. Negotiate a loan or loans with the Diamond National Bank or some other banking institution to the aggregate amount of the stock purchased, to wit: one hundred twenty-four thousand ($124,000.00) dollars, and pledge thereon as collateral security for said loan or loans the three hundred and ten (310) shares of said stock.</p> <p>“Second. That all dividends on said stock shall be applied by the party of the first part to the interest on said loan or loans and should there be a surplus, to pro rate to the parties of the second part said surplus.</p> <p>“Third. That upon demand by the parties of the seGond part upon the party of the first part, the party of the first part will distribute pro rata to himself and to the parties of the second part the stock above referred to, upon payment by the parties hereto of the amount due thereon both as to principal and interest.</p> <p>“The parties of the second part agree—</p> <p>“First. That should the party of the first part be unable at any time to secure loans upon said stock, that they will take up their pro rata shares of said stock and pay to the party of the first part the amount due thereon and by him applied to the liquidation of said loan or loans.</p> <p>“Second. Should the dividends paid or declared on said stock be insufficient to pay the interest on said loan or loans, the parties of the second part agree to pay pro rata their share of the deficiency.</p> <p>“This agreement is made to bind the heirs, executors and administrators of the parties of the first and second parts.</p> <p>“Witness the hands and seals of the parties hereto this 15th day of May, A. D. 1906.”</p> <p>On May 17, 1906, two days after the execution of the foregoing agreement, the plaintiff, in pursuance of it, procured a loan of $124,000.00 from a bank in Pittsburgh, and pledged the 310 shares of stock as collateral security. The interest on the said loan, up to the time it was called by the bank, amounted to $9,616.25 more than the dividends that had been received by the plaintiff on the stock. When the loan was called a majority of the eight signers to the agreement signified their desire to dissolve the pool, and plaintiff demanded of the defendant that he take up one-eighth of the 310 shares of the Colonial Trust Company stock and pay one-eighth of the said loan and accrued interest thereon, amounting in the aggregate to $16,702.03. This demand was made because plaintiff contended that defendant had assumed one-eighth of the obligation imposed by the agreement. After the defendant had refused to comply with the demand made on him this action was brought, and to plaintiff’s statement the following affidavit of defense was filed:</p> <p>“The defendant, F. A. Griffin, denies that he is indebted to the plaintiff as trustee, or otherwise, in the sum of sixteen thousand seven hundred two and 3-100 ($16,702.03) dollars, with interest thereon, or in any other sum whatsoever, except as hereinafter stated.</p> <p>“I admit that on or about the 17th day of May, 1906, I signed the agreement, a copy of which is attached to the plaintiffs’ statement of claim and marked Exhibit ‘A.’</p> <p>“I further admit that the plaintiff, on or about the 17th day of May, 1906, procured a loan from the Diamond National Bank in the sum of $124,000.00 and pledged as collateral security therefor the said 310 shares of the stock of the Colonial Trust Company.</p> <p>“I admit that under the terms of said agreement, I became liable for my pro rata share of the principal and interest- due on said loan for which said stock is pledged, but I deny that such pro rata share was or is one-eighth part thereof. I aver that at the time of the execution of the said agreement, Exhibit ‘A,’ it was understood and agreed that the pro rata shares for which the signers thereof became liable were based upon the number of shares of their respective holdings of the capital stock of the Colonial Trust Company, and that such liability was not to be based or pro rated upon the number of signers to the said agreement.</p> <p>“I aver that said agreement, Exhibit ‘A/ arose out of and was executed under the following circumstances, viz: At the time of the execution of said agreement, and for some time prior thereto, all of the persons signing said agreement were directors and also stockholders and members of the executive committee, and some of them officers, of the Colonial Trust Company, gome time prior to the signing of said agreement, there remained in the treasury of the Colonial Trust Company unsold some 500 shares of the capital stock of the Colonial Trust Company, and the directors of said trust company were desirous of selling said treasury stock. Pursuant to a resolution of the board of directors, the various stockholders of the said Colonial Trust Company were asked to subscribe for said treasury stock at-$400.00 per share, and each stockholder was authorized to take his pro rata portion of said treasury stock based upon the number of shares of stock which he then held in said Colonial Trust Company. After all the said stockholders of the Colonial Trust Company had subscribed for such shares of said treasury stock as they desired, there remained unsold 310 shares. The directors of the said Colonial Trust Company who subsequently signed the said agreement, Exhibit ‘A,’ were anxious that these remaining 310 shares of stock should also be sold so that the trust company could have the use of the money, and it was proposed by defendant to the signers of said agreement at a meeting of the said executive committee, that the various members should subscribe for this stock pro rata, and this defendant then and there offered to purchase and pay for his pro rata share of said stock in case the other members of the executive committee, who later became signers to said agreement, would also take and pay for their pro rata share of said remaining stock, the pro rata shares of each one to be based upon the number of shares of the stock of the said Colonial Trust Company which he then held, on the same basis ás all the shareholders of the said Colonial Trust Company had been permitted to subscribe for said treasury stock. The proposition made by defendant, that each of the said members of the board of directors or executive committee should take and pay for his pro rata share of said remaining treasury stock, was apparently held for further consideration, without any definite action at that time. But soon after, as a result of the said proposition and pursuant thereto, the plaintiff in this case, Mr. James C. Chaplin, prepared and presented to defendant the agreement marked Exhibit ‘A,’ and asked the defendant to sign the same. Neither at the time of signing the said agreement nor at any other time was any suggestion of equal liability of the signers made, nor any suggestion of any other liability than the pro rata liability based on ownership of the stock, as had been proposed by this defendant, and this defendant understood, and on information and belief avers and expects to be able to prove, that it was understood by all of the other signers thereof that the pro rata obligation and liability of each subscriber thereto, as referred to in said agreement, was to be based upon the number of shares of his holdings of stock in the said Colonial Trust Company, and not otherwise.</p> <p>“Defendant avers at the time of the signing of said agreement, Exhibit ‘A,’ he was the owner of 150 shares of the capital stock of the said Colonial Trust Company. Defendant also avers, on information and belief and expects to be able to prove at the trial of the cause, that the other subscribers to said agreement owned the following number of shares of said stock:</p> <p>“John A. Bell,............ 617 shares;</p> <p>“James S. Kuhn,.......... 239 “</p> <p>“J. D. Callery, ............ 670 «</p> <p>“John C. Reilly,.......... 413 «</p> <p>“J. C. Chaplin,........... 477 “</p> <p>“William Minn,'...........1,141 «</p> <p>and that E. H. Jennings owned or controlled, and fully represented in signing said agreement, approximately 3,577 shares of said stock.</p> <p>“Based upon the aforesaid holdings of stock, the pro rata share of the obligation and liability for said loan and interest made by plaintiff under said agreement, Exhibit ‘A,’ for which defendant is liable is approximately two per cent. (2%) of the total indebtedness, which amount this -defendant is willing to pay upon delivery to him by the plaintiff of a like pro rata share of the said 310 shares of stock.</p> <p>“Defendant therefore denies that he is indebted to the plaintiff in any other amount except as herein stated, which indebtedness he is, and always has been, ready and willing to pay on delivery to him of the pro rata share of said stock, and therefore asks that this suit be dismissed at the plaintiffs’ cost.”</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was in discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals, Nos. 244 and 245, Oct. T., 1915, by plaintiffs, from final decree of O. R Allegheny Co., April T., 1914, Nos. 395 and 396, in equity, dismissing bill in equity for discovery and an accounting in cases of Louis W. Dalzell v. Wenman A. Lewis, Bernard W. Lewis, and the Estate of George B. Findley, deceased; and Virginia A. McKee, Mary B. Dalzell, and J. Dalzell McKee v. Wenman A. Lewis, Bernard W. Lewis and the Estate of George B. Findley, deceased.</p> <p>Bills in equity for discovery and an accounting. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The lower court dismissed the bills. Plaintiffs appealed.</p> <p>Error assigned, among others, was in dismissing the bills.</p>

<p>Contracts — Sales of stocJc — Formation of holding company — Insolvency of holding company — Bill in equity for surrender of shares —Estoppel.</p> <p>In a suit in equity to compel the surrender of certain shares of telephone stock, it appeared that the stock had been transferred by plaintiff’s decedent to the promotor of a holding company under an agreement restricting the manner in which it should be transferred by such promoter and providing for the payment therefor in a certain way; that the stock was transferred to the holding company by the promoter in a manner not contemplated by the agreement although with the acquiescence of plaintiff’s decedent, and that payment therefor was made to plaintiff’s decedent in stock of the holding company. The stock so transferred was subsequently mortgaged by the holding company together with other property, and plaintiff’s decedent received two dividends on the stock of the holding company. The holding company became insolvent and its property was sold under, the mortgage; plaintiff contended that he was entitled to a return of the stock because it had been acquired by the holding company in violation of the terms of the agreement between his decedent and the promoter. The lower court dismissed the bill. Held, that as plaintiff’s decedent had acquiesced in the transfer of his stock to the holding company, and had accepted stock in payment therefor, upon which he had received dividends, he had estopped himself from complaining of the violation of the agreement, and the decree was affirmed.</p>

<p>Decedents’ estates — Executors and administrators — Counsel fees —Issue devisavit vel non.</p> <p>1. An executor or administrator who becomes a party to an issue devisavit vel non cannot charge expenses so incurred to the estate unless it is benefited thereby.</p> <p>2. A claim against a decedent’s estate for fees of counsel employed by an executor for the purpose of sustaining charitable and religious bequests and defeating the claim of the decedent’s husband was properly disallowed.</p>

<p>Appeals, Nos. 249 and 250, Oct. T., 1915, by Tom C. Smith, Administrator of the Estate of Lorena Y. Gregg, deceased, and Fidelity Title & Trust Company, Executor of last will and testament of Edward R. Gregg, deceased, from decree of O. O. Allegheny Co., Sept. T., 1914, No. 201, dismissing exceptions to adjudication in re Estate of Lorena Y. Gregg, deceased.,</p> <p>Exceptions to adjudication. Before Over, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court in banc dismissed exceptions to the adjudication. Tom C. Smith, administrator of the estate of Lorena Y. Gregg, deceased, and Fidelity Title and Trust Company, executor of the last will of Edward R. Gregg, deceased, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 236, Oct. T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., April Term, 1914, No. 1808, for defendant, non obstante veredicto in case of L. J. Marks v. Anchor Savings Bank.</p> <p>Assumpsit to recover amount paid on forged endorse-, jnent of check. Before Macearían®, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,243.80 and judgment thereon.</p> <p>The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant n. o. v. .</p>

<p>O ontract — Suretyship—Building contracts — Bonds — 0 onstruction — Liability of surety — Discontinuance of action against principals.</p> <p>1. In an action against the surety upon a contractor’s bond, where the contractor had defaulted, and plaintiff, the owner, had finished the work at a cost in excess of the contract price, it was no defense that certain payments for the work had been made by the owner to a party other than the contractor with the contractor’s consent; the surety was not thereby discharged, there being no evidence that it was prejudiced by such payments, especially where it appeared that the liability of the surety was thereby reduced.</p> <p>2. In such case a provision in the contract that for failure, refusal or neglect of the contractor to supply a sufficiency of properly skilled workmen, or failure to prosecute the work with promptness and diligence, the owner might terminate the employment of the contractor, enter upon the premises and finish the work and that the expenses incurred by the owner in so doing should be audited and certified by the architect, whose certificate thereof “shall be conclusive upon the parties,” did not require that where the contractor defaulted and abandoned the work, the expense of completing it should be audited by the architect.</p> <p>3. Where in such case, the bond provided that “until the expiration of the time within which liens or notices of liens may be filed, and until the discharge of such liens if any, the obligee shall at all times preserve and exercise all rights provided for his protection by the laws relating to liens of the state wherein said contract is to be performed,” the owner was not required to file a no-lien contract, and was properly allowed reimbursement for payments made in discharging mechanics’ liens filed by subcontractors and materialmen, particularly where it appeared that the contract which the surety company executed contemplated the filing of liens and contained no provision prohibiting the filing of liens by the contractor or subcontractors.</p> <p>4. In such ease where the action was brought against the principals as partners, and one of the principals died after suit brought, and the other was not a member of the partnership when the contract was made, the discontinuance of the action against the principals did not relieve the surety, and the court properly refused to direct a verdict for defendant.</p>

<p>Contracts — Sales of stoclc — Commissions—Judgment for defendant n. o. v.</p> <p>1. In an action to recover a commission upon the sale of certain stock alleged to have been effected by plaintiff at the request of defendant where it did not appear that plaintiff was the efficient moving cause of the sale, and where it did appear that defendant had negotiated the sale himself, the court made no error in entering judgment for defendant n. o. v.</p> <p>Court and jury — Verdict—Capricious disbelief of testimony.</p> <p>2. A verdict which plainly indicates that the jury indulged in a capricious disbelief of the testimony should not be permitted to stand.</p>

Appeal, No. 228, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., June T., 1912, No. .3717, on verdict for defendant, in case of Joseph B. Wright v. William C. Mitchell. Trespass to recover damages for personal injuries. Before Martin, P. J. The opinion of the Supreme Court states the facts. Verdict for defendant and judgment thereon. Plaintiff appealed. Errors assigned were instructions to the jury.

Appeal, No. 245, Jan. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1914, No.. 2862, on verdict for plaintiff, in case of John A. Goodwin v. Chas. J. Heckler. Assumpsit for a balance due on a contract for the sale of brick. Before McMichael, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $5,461.82 and judgment thereon. Defendant appealed. Errors assigned were answers to points.

Appeal, No. 226, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., June T., 1914, No. 3498, on directed verdict for defendant, in case of Ellwood Hoffman v. Brentmore Knitting Mills. Trespass to recover damages for personal injuries. Before Davis, J. The opinion of the Supreme Court states the facts. Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.

Appeal, No. 268, Jan. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 5114, on verdict for plaintiff in case of Keller-Pike Company v. Charles G. Wetter, trading as George F. Payne and Company. Assumpsit to recover a balance alleged to be due under a building contract. Before Shoemaker, J. Tbe opinion of tbe Supreme Court states the facts.

<p>Appeal, No. 272, Jan. T., 1915, by-plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No'. 2534, on verdict for defendant, in case of Fiore Tavani v. Philadelphia Rapid Transit Company, a Corporation of the State of Pennsylvania.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Ralston, J., charged the jury as follows:</p> <p>Gentlemen of the Jury: You have been trying the cases of the two plaintiffs, Tavani and Tieri, against the Philadelphia Rapid Transit Company. The plaintiff Tavani claims that he was injured by reason of the negligence of the defendant company in running its car into the wagon which he was driving; the plaintiff Tieri was the owner of the horse and wagon and claims for the damage done to his property. In order to find verdicts for the plaintiffs, you must find that the company was negligent, and that the plaintiff Tavani who was in charge of the wagon was exercising all the care which was required of him under the circumstances.</p> <p>The negligence of the company which is alleged is that the motprman of the car gave no warning of its approach, and that the car was being operated at an excessive speed. The matter of warning would not amount to very much in this case, because the accident happened in broad daylight and anybody could see the car. Whether or not the car was running at an excessive speed is for you to determine. One of the plaintiffs’ witnesses stated, I think, that it was running at the rate of twenty-five miles an hour, and another I think said fifteen miles an hour. The defendant’s witnesses testified that the car was not running rapidly, but, on the contrary, was running very slowly. Unless you find that the car was running at an excessive speed, or that the defendant was guilty of negligence in some other way, you should render a verdict for the defendant.</p> <p>A man driving a wagon across the car tracks in the city is bound to look just before he commits himself to the track. When his horse’s head gets to the first rail of the track he is bound to look, and if he sees a car approaching which is near to Mm, so that there is danger of a collision, it is his duty to stop until the car has passed. Did the plaintiff Tavani exercise that care? According to his own testimony, he looked when he was on the nearest track, that is, the southbound track, .and he looked as his horse got to the first rail of the northbound track and saw nothing. Now, is that possible, gentlemen? Is it possible that, if he had looked at that time and there was nothing to be seen on the track, he could have been struck by this car almost immediately afterwards? It is argued by counsel that the car was down in a hollow on the other side of Walnut street, but when the surveyor was called to the witness stand, it appeared that there is no hollow there — that . Locust street is six feet lower than Walnut and Sansom is four feet and some inches lower than Walnut. It is argued that a man at Sansom street could not see beyond Walnut street because he would be looking up in the air. That would only be so, however, if he were lying on the ground, but if his head were five feet above the grade of the street he could see across Walnut street and see anything on the other side of Walnut, provided it was six feet high. Of course this trolley car was much more than six feet high. According to the surveyor’s evidence as to these grades, there was nothing to prevent a man at Sansom street from seeing a car at Locust street. In view of that testimony, you must ask yourselves whether the plaintiff looked for this car. He was bound to look before he committed himself to the track, and if he says he looked and was immediately struck by the car upon driving on the track, of course he must have seen the car which was approaching. If he did not look, or if he did look and did not see a car which was close to him, and which he ought to have seen, then he himself was negligent and he cannot recover.</p> <p>If you should find in favor of the plaintiffs, you should render two verdicts. Tavani was the driver of the wagon and he is claiming for personal injuries. He would be entitled to recover for the expenses to which he was put, doctors’ bills, medicines and so forth, and also for any wages which he lost by reason of not being able to work after the accident. Those matters have been gone over with you fully by counsel. He would also be entitled, to a sum to compensate him for the pain and suffering which have been caused to him by the accident. That would be such a sum as you, in your judgment, deem proper to compensate him for what he has suffered. He described his injuries to you, as did his physicians. Prom that testimony, you would have to consider the nature and character of the pain, the length of the time it lasted, and how severe it was, and award such a sum as in your judgment you deem proper to compensate him for the suffering which he endured as the result of this accident.</p> <p>The other plaintiff, Tieri, was the owner of the horse, wagon and harness, and, should your verdict be for the plaintiffs, he would be entitled to compensation for the damage that was done to his property. He has told you what he paid for the ambulance, for the veterinary, for repairing the harness, and for the hire of a horse. Unfortunately, he did not have the man who sold him the wagon, and he was unable to fix the damage to the wagon. But for those items of damage which he has proved he would be entitled to recover, should your verdict be in favor of the plaintiffs.</p> <p>Now, gentlemen, you must consider the testimony and render your verdict according to the conclusions which you may reach. You must find that the defendant company was negligent, and you must further find that Tavani, the driver of the wagon, was free from negligence, in order to render verdicts for the plaintiffs.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was the charge to the jury.</p>

Appeal, No. 126, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1913, No. 3857, refusing to take off non-suit in case of Charles B. Wagner v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Sulzberger, J. The opinion of the Supreme Court states the facts. The lower court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Appeal, No. 292, Jan. T., 1915, by defendants, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 473, on verdict for plaintiff in case of Alexander Gross v. Frank J. Grabowsky and Charles F. Altvater, copartners, trading as Eagle Wheel Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $1,955.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in submitting to the jury various questions and in overruling defendants’ motion for judgment non obstante veredicto.</p>

Appeal, No. 282, Jan. T., 1915, by defendant, from judgment of C. P. No. 5, Philadelphia Co., March T., 1915, No. 385, for plaintiff for want of a sufficient affidavit of defense in case of Jennie Armstrong Patterson Moore, surviving executor and trustee of the last will and testament of James Patterson, deceased, v. Joseph C. Trainer. Assumpsit to recover rent due under a lease. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeals, Nos. 329 and 330, Jan. T., 1915, by Daisy E. Wilson and tbe Commonwealth Title Insurance and Trust Company, Guardian of Robert H. Wilson, a minor, from decree of O. C. Philadelphia Co., April T., 1914, No. 465, dismissing exceptions to adjudication, in Estate of Charles E. Wilson, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Orphans’ Court allowed the claim of the Quaker City National Bank, upon a promissory note signed “Continental Telephone and Telegraph Co., Charles E. Wilson, Receiver,” in the sum of $12,735.54. Daisy E. Wilson and the Commonwealth Title Insurance and Trust Company, Guardian of Robert H. Wilson, a minor, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 161, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 574, on verdict for plaintiff in case of James Counizzarri v. Paul J. Snyder, trading as Paul J. Snyder & Company.</p> <p>Trespass to recover damages for personal injuries. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,500, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Courts — Decedents’ estates — Jurisdiction, C. P. — Jurisdiction, O. C. — Lis pendens.</p> <p>1. The authority of the Orphans’ Court is ample not only to ascertain the amount of the estate of a decedent and order its distribution but to determine all questions arising out of alleged defaults of his personal representative and to enforce its conclusion by an appropriate decree. The court has all the means of enforcing the decree possessed by courts of equity and of law.</p> <p>2. In a suit in equity brought in the Common Pleas Court to compel the executor of a decedent’s estate and the wife of decedent to pay over to a trustee for the use of the estate, a fund realized from the sale of certain land situated in Florida, for which it was alleged the executor had failed to account and where it appeared that plaintiffs had previously elected to submit their claim to the Orphans’ Court, that the proceedings therein were still pending and that the Orphans’ Court had full power to afford plaintiffs adequate relief, the lower court did not err in deciding that plaintiffs were precluded by their action in the Orphans’ Court, from seeking the same relief in the Common Pleas and properly dismissed the bill.</p>

Appeal, No. 157, Jan. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1912, No. 3336, on verdict for plaintiffs, in case of Bita Campbell, by her mother and next friend, Catherine Campbell, and Catherine Campbell in her own right, v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Bregy, P. J. The opinion of the Supreme Court states the facts.

Appeals, Nos. 263 and 264, Jan. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1913, No. 4317, for plaintiff in case of Philip Di Meglio, by his father and next friend Giovanna Di Meglio v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Ferguson, J. The facts appear in Di Meglio v. Philadelphia & Reading Ry. Co., 249 Pa. 319, and in the opinion of the Supreme Court.

<p>Wills — Real estate — Conversion — Vested and contingent remainders — Accumulations—Act of April 18, 1853, P. L. 508, Bee. 9 — Intestacy.</p> <p>1. Where a will authorizes and empowers trustees to make sale of the real estate at any time they may see fit, and directs that the proceeds thereof shall be held upon the same trusts and for the same purposes as the personal estate, and provides for the distribution of the estate in the form of money upon the death of the life tenant, and further gives the trustees authority for that purpose to sell any real estate then unsold, with the provision that all the estate shall be converted into money and that it shall be go distributed, there is such a blending of realty and personalty as to show that testatrix intended to create a common fund from both, and to bequeath such fund in the form of money as to work a conversion of the real estate.</p> <p>2. If there is a present right to a future possession though that right might be defeated by some future event, contingent or certain, there is nevertheless a vested estate.</p> <p>3. Where a testatrix bequeathed her estate in trust for the benefit of her daughter for life, with directions to the trustees to apply so much of either principal or income as they might think proper for the maintenance and support of the life tenant, and further provided “I do hereby will and bequeath that my property and estate that shall be in charge of said trustees at the time of the decease of the said Adella (the life tenant) to and among the children of the said Adella, provided that the said Adella shall leave at her decease any such children, and in ease that the said Adella shall not leave at her decease any such child or child of such deceased child, then in that" ease I will, devise and bequeath all my property and estate so in charge of my said trustees......at the death of Adella to and among my brothers and sisters, share and share alike, the children of any now or then deceased brother or sister to represent his or her parent and take the share he or she would take if living,” the brothers and sisters of testatrix living at her death, and the children of deceased brothers and sisters took vested interests in the fund, subject to be divested by the death of the life tenant leaving children.</p> <p>4. Accumulation is forbidden by the Act of April 18, 1853, P. L. 503, Section 9, no less where it results by indirection than where it is expressly ordered. If the result of carrying into effect the provisions of the will has produced accumulations beyond the period and not within the conditions provided by the act such accumulations are void.</p> <p>5. Where in such case, it appeared that the original fund passing into the hands of the trustees and constituting the corpus of the estate, had been increased during the lifetime of the life tenant by the receipt of income in excess of her needs and of the expenses of administering the estate, such excess constituted unlawful accumulations in violation of the Act of April 18, 1853, P. L. 503, Section 9, and upon the death of the life tenant were distributable under the intestate laws.</p>

<p>Negligence — Master and servant — Mines and mining — Bituminous Mine Act of May 15,1893, P. L. 52 — Failure to instruct employee.</p> <p>1. The Bituminous Mine Act of May 15, 1893, P. L. 52, does not impose on a mine foreman the duty of giving adequate instructions to inexperienced miners, hut leaves this responsibility upon the shoulders of the employer.</p> <p>Bogdanovicz v. Susquehanna Coal Co., 240 Pa. 124, followed.</p> <p>2. Where in an action against a coal mining company to recover damages for injuries to a miner, it appeared that defendant failed to indicate plaintiff’s specific duties and also failed properly to instruct him therein, and that he sustained the injury while assisting a fellow employee at the request of the latter, under circumstances from which he was justified in assuming that such fellow employee had a right to make demand upon him for assistance, defendant could not escape liability on the ground that plaintiff was injured while doing work other than that for which he was employed, and a verdict for plaintiff was sustained.</p>

<p>Appeal, No. 179, Oct. T., 1915, by defendant, from judgment of 0/ P. Allegheny Co-., Jan. T., 1913, No. 2361, on verdict for plaintiff, in case of Edward Kephart v. Carbon Steel Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Contracts — Construction—Agreement that work shall he “satisfactory</p> <p>1. A term of a contract providing that work done shall be “satisfactory” does not necessarily mean satisfactory to the other party, but may mean that it must conform to the usual standards of such work.</p> <p>2. Where plaintiff erected a water softening plant for defendant under a contract providing that plaintiff would “furnish such chemicals as shall be required for a thorough and satisfactory treatment of this well water,” and which contained specifications for the erection of such plant, the word “satisfactory” so used is not to be construed to mean satisfactory to the defendant, but merely that the plant erected should conform to the usual standards of such plants, and the lower court in an action on the contract, in which the plaintiff recovered a verdict, erred in entering judgment for defendant n. o. v.</p> <p>Singerly v. Thayer, 108 Pa. 291, distinguished.</p>

<p>Contracts- — Construction—Suretyship—Alternative obligation.</p> <p>Where the defendant, the equitable owner of certain real estate, entered into a written agreement with a subcontractor engaged in work on buildings being constructed on such land, that it would “see that this property is made available to you, by payment of your bill out of these proceeds on sale, by conveyance to you, or else by a mortgage in the amount of your bill against” the contractor, naming him, “if the latter should fail to pay your bill,” and further agreed that the property should not be encumbered beyond the mortgages already a lien thereon, the obligation of the defendant was not that of a surety, but it was bound to perform one'or the other of the alternatives mentioned in the contract, and in an action thereon after the failure of the contractor and the refusal of the defendant on demand to perform its agreement, the fact that the contractor disputed plaintiff’s claim and had so notified the defendant was no defense and a verdict for the plaintiff was sustained.</p>

<p>' Contracts — Bankers and brokers — Pledge of securities — Unauthorized pledge — Bights of pledgee — Indicia of title — Estoppel.</p> <p>1. One who delivers stock to another, accompanied by a power of attorney for the transfer thereof, clothes such other person with apparent ownership, and a bona fide purchaser or pledgee for value thereof, from such apparent owner, obtains a good title.</p> <p>2. If a party having a right stands by and sees another dealing with property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot afterwards complain.</p> <p>3. In an action against a stock broker to recover for the conversion of securities a verdict was properly directed for the defendant where it appeared that plaintiff delivered certain of the securities to her husband, accompanied by properly executed blank powers of attorney, which securities he in turn deposited with defendant as security for certain stock transactions in which the husband was engaged; that subsequently plaintiff delivered other securities similarly endorsed to defendant, receiving therefor a receipt in the name of her husband, in which it was stated that the securities were to be held as collateral for the account of plaintiff’s husbands or any advances made to him thereafter, with power to rehypothecate the same, and plaintiff thereafter sent a check to defendant to strengthen the account, she could not subsequently complain of the action of defendant in applying said securities in payment of her husband’s account, especially where it appeared that she made no claim against defendant for several years after the alleged conversion, and that she had accepted a note from her husband in payment of the securities delivered to him or for his account,</p>

<p>Negligence — Master and servant — Mines and mining — Death— Fall of mine roof — Unexplained cause — Act of June 2,1891, P. L. 176 — Nonsuit.</p> <p>Where in an action for the death of plaintiffs’ son, caused by tbe fall of coal from tbe roof of a mine alleged to have been in a dangerous condition, it appeared that the coal fell from a part of the roof which had been tested by the miners and which was regarded as safe, and where there was no evidence as to the cause of the fall of the coal, the trial judge made no error in entering a compulsory nonsuit and it was not material that the provisions of the Anthracite Mine Act of June 2, 1891, P. L. 176, might have been violated by defendant, where there was no evidence that such violations contributed to the accident.</p>

<p>Contracts' — Breach—Damages—Evidence—Admissibility—- Gem eral objection.</p> <p>1. Where an objection to the admission of evidence is general, no particular ground being assigned, it is not error for the court to overrule it; and when this occurs, the ruling of the court will be sustained on appeal, if the evidence or any part of it, be proper for any purpose.</p> <p>2. In an action to recover damages for defendant’s breach of a contract for the removal of stone and dirt from certain premises, where it appeared that plaintiff, upon- defendant’s default, had engaged other persons to do the work and sought to recover from defendant the loss occasioned, it was not error to admit in evidence to prove the expenditures incurred by plaintiff in doing the work, slips or tickets given by plaintiff to the drivers of the persons whom plaintiff employed, showing the amount of material removed by each driver, and checks exchanged in payment for such tickets, or to permit the president of plaintiff company to 'state the number of tickets and the amount of the checks so used.</p>

<p>Negligence — Street railways — Pedestrian—Contributory negligence — Judgment for defendant n. o. v.</p> <p>1. Tbe suggestion that a street car was running at a reckless speed at the time it struck a pedestrian, is rebutted by the fact that it stopped within ten feet after the accident.</p> <p>2. One who voluntarily subjects himself to manifest danger cannot complain because others fail to exercise such a degree of care as to save him from harm.</p> <p>3. In an action by a pedestrian against a street railway company to recover damages for personal injuries sustained by being struck by one of defendant’s cars, judgment was properly entered for the defendant non obstante veredicto where there was no evidence that the ear was moving at a reckless speed, and it appeared that the car stopped within ten feet after the collision and that plaintiff had seen the car and voluntarily passed in front of it when it was so near as to strike him before he could step across the tracks.</p>

<p>Negligence — Master and servant — Liability of master for servant’s tort — Automobile accident — Scope of chauffeur’s employment — Binding instructions for defendant.</p> <p>1. In an action to recover damages for injuries resulting from an automobile accident, it is necessary for plaintiff to prove not only that defendant was the owner of the car and that the driver was his servant, but that such servant was at the time engaged in the master’s business. The test of liability is whether the servant at the time of the plaintiff’s injury was acting within the scope of his authority in furtherance of his master’s business.</p> <p>'</p> <p>2. Where it appears in such case that, at the time of the accident the chauffeur was engaged in the transportation of his own family, with the consent of his employer, and that at no time during the trip was he engaged in his employer’s business, a verdict was properly directed for the defendant.</p> <p>3. In such case the fact of the efforts of the owner of the car to relieve the sufferings of one injured cannot be made the basis of a legal liability unless by reason of some agreement or admission. The declarations of the servant made after the accident are not evidence against the master unless ratified by him.</p>

<p>Landlord and tenant — Goods liable to distress — Receivers—Sale of goods — Rights of landlord — Acts of June 16, 18S6, P. L. 755, Sec. 88; May 86,1891, P. L. IBS, Sec. 1.</p> <p>1. Where goods subject to distress for rent, pass into the hands of a receiver appointed for the tenant and are sold by the receiver, the landlord is not entitled,'upon the distribution of the funds so realized, to a preference for rent under the Act of May 26, 1891, P. L. 122, relating to the rights of landlords upon a judicial sale or assignment of goods subject to distress for rent.</p> <p>Statutes — Construction.</p> <p>2. It is a fundamental rule of statutory construction that courts in seeking for the legislative intent must find it in the statute itself; that unless good grounds can be found in the statute for restraining or enlarging the meaning of its words, the court cannot subtract therefrom or add thereto. Where the words of a statute are plain and clearly define its scope and limit, construction cannot extend it.</p>

<p>Appeal, No. 340, Jan. T., 1915, by respondent, from judgment of C. P. No. 2, Philadelphia Co., June T., 1915, No. 3192, awarding peremptory mandamus, in case of Emma R. Catherwood v. Guarantee Trust and Safé Deposit Company.</p> <p>Petition for mandamus.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court overruled respondent’s demurrer to the petition and awarded a peremptory mandamus commanding the respondent to transfer the stock to pe- ■ titioner’s name in accordance with the prayer of the petition. Respondent appealed.</p> <p>Error assigned was in awarding the peremptory mandamus.</p>

<p>Negligence — Street railways — Bicycles — Collision — Death — Nonsuit.</p> <p>Where in an action against' a street railway company to recover damages for the death of plaintiff’s husband, it appeared that deceased rode his bicycle from a side street where the cars did not stop, across the intersecting tracks of defendant company and in front of a trolley car, the near approach of which deceased must have seen if he had looked before attempting the crossing, and the evidence failed to disclose negligence on the part of defendant and showed that deceased was guilty of contributory negligence, a compulsory nonsuit was properly entered.</p>

<p>Negligence — Automobiles — Collision — Conflicting evidence— Contributory negligence — Proximate cause — Case for fury.</p> <p>1. It is the duty of a driver of a vehicle approaching the crossing of a street intersection to have his vehicle under control and to observe what is or may be approaching from the other street; and where another vehicle is first at the crossing, to give it an opportunity to clear the same and to use due care to avoid a collision.</p> <p>2. Where in an action for injuries, occasioned in a collision between plaintiff’s automobile and another automobile, plaintiff’s evidence tended to show that defendant’s car was driven in a re.ck-less manner and at very high speed and ran violently into plaintiff’s ear; while defendant’s evidence placed the responsibility for the accident upon the reckless management of plaintiff’s car, the case is for the jury.</p> <p>3. In such case plaintiff was not precluded from recovery by reason of the fact that, at the time of the accident, he was sitting on the floor of the car between the driver and a passenger, as his unusual position was not the cause of the accident and in no way contributed thereto. A person injured by the negligence of another is not deprived of all remedies merely because, at the time, he was occupying an unusual position in a conveyance, unless he thereby cooperated in causing his injuries.</p>

<p>Practice, G. P. — Sheriff’s sale — Proceeds—Payment into court— Proceedings — Necessary parties.</p> <p>1. Before a sheriff can he ordered to pay into court money realized from a sheriff’s sale, he has a right to be heard.</p> <p>2. An order discharging a rule to show cause why money realized from a sheriff’s sale should not be paid into court, will he affirmed if it does not.appear that the sheriff was served in any way with notice of the proceedings.</p> <p>3. While it rests in the discretion of the court to grant or refuse an order on a sheriff to pay into court the proceeds of an execution, the court’s action being reviewable a refusal should be accompanied by the reasons governing.</p>

<p>Appeal, No. 382, Jan. T., 1915, by Edward Shippen Thompson, from decree of O. C., Juniata Co., refusing to set aside an award of a purpart, in partition proceedings, in Estate of Theodore Samuel Thompson, Deceased.</p> <p>Petition for an inquest in partition. Before Seibert, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The land was divided into seven purparts, numbered consecutively. The bids for purpart No. 1 were received and opened in open court. The court awarded purpart No. 1 to Emily Cassel Haldeman, she being, in the view of the court, the highest and best bidder, and subsequently refused to set aside the award. Edward Shippen Thomson appealed.</p> <p>Error assigned was in awarding the purpart to Emily Cassel Haldeman, and in refusing to set aside the award.</p>

<p>Contracts — Support agreements — Surety—Subsequent arrest of husband — Effect on obligation of surety.</p> <p>The surety on an agreement by a husband to pay his wife a stipulated weekly sum for the support of their minor children, is not relieved from his obligation by the fact that the wife subsequently brought nonsupport proceedings against her husband; such action being rather to the relief of the surety than to his prejudice.</p>

<p>Appeal, No. 154, Jan. T., 1915, by Ella E. Meurer, from decree of O. C. Philadelphia Co., Jan. T., 1886, No. 215, dismissing petition for appointment of a trustee in case of Estate of Anthony Elton, Deceased.</p> <p>Petition for the appointment of a trustee. Before Gummey, J.</p> <p>The court dismissed the petition. Petitioner appealed.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Trustees — Trustees ex maleficio — Stock—Purchase of stock — Agency — Insitffi-cient evidence.</p> <p>In. a suit in equity to require defendant to transfer to plaintiff certain shares of corporate stock, plaintiff alleged that defendant had been his agent for the purchase of the holdings of a third person in a certain corporation and that he had paid defendant a stipulated consideration, but that defendant had only transferred a part of the holdings of such third person which he had acquired, retaining 191 shares. The evidence did not show that plaintiff had employed defendant as his agent for the purchase of the stock but merely showed an agreement by plaintiff for the purchase of those shares from defendant which had been admittedly delivered to plaintiff. The lower court found that defendant was not plaintiff’s agent for the purchase of the stock, and that there was no fraud on defendant’s part in retaining the shares which he held, and dismissed the bill. Held, no error.</p>

<p>Appeal, No. 313, Jan. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co.7 Dec. T., 1911, No. 3209, on verdict for plaintiff in case of John J. Tarnogursld v. Thomas Rzepski.</p> <p>Trespass to recover damages for injury to property. Before Patterson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,500.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury and in dismissing defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 189, Jan. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1913, No. 1345, on verdict for plaintiff in case of Dora Albert v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $5,000, and. judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and the refusal of defendant’s motion to withdraw a juror.</p>

Appeal, No. 301, Jan. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1912, No. 312, on verdict for plaintiff in case of Giuseppe Di Giosia v. H. S. Kerbaugh, Inc. Trespass to recover damages for personal injuries. Before McMichael, P. J. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $5,000, and judgment thereon. Defendant appealed.

<p>Appeals, Nos. 404 and 406, Jan. T., 1915, by Charles Margulis, and, Benjamin and Sarah Bolschun from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 459, in case of Old Man’s Home of Philadelphia v. William J. Fisher, Administrator, d. h. n. c. t. a. of the Estate of Susan J. McKeever, Deceased, defendant, and Charles Margulis and Benjamin and Sarah Bolschun, Terre Tenants.</p> <p>Scire facias to revive a judgment. Before Martin, P. J.</p> <p>The facts appear hy the opinion of the Supreme Court.</p> <p>Verdict for plaintiff against the ter re tenants and •judgment thereon. Charles Margulis and Benjamin and Sarah Bolschun, terre tenants, appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

Appeal, No. 304, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1914, No. 308, on directed verdict for defendant in case of City of Philadelphia v. Emma C. Berg-doll. Trespass to recover from defendant the amount of a judgment paid to an injured pedestrian. Before AudenRIED, P. J. . The facts appear by the opinion of the Supreme Court. On the trial, the trial judge directed a verdict for the defendant. Plaintiff appealed.

<p>Appeal, No. 1, Oct. 1, 1916, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1914, No. 19, on verdict for plaintiff, in case of Mary P. Wolfe v. Frank Sullivan Smith, Receiver of the Pittsburgh, Shawmut & Northern Railroad Company, a Corporation.</p> <p>Trespass to recover damages for personal injuries. Before King, P. J.</p> <p>From the record it appeared that on Nov. 29, 1913, plaintiff left her uncle’s home in the country to take a train at Colwell for Kittanning.</p> <p>Colwell is a flag station on the Pittsburgh & Shawmut Railroad which railroad is operated by Frank Sullivan Smith, Receiver, the defendant.</p> <p>Plaintiff and her aunt and cousin who intended taking same train were driven to station. The station consisted of a platform, forty feet long and nine feet, four inches wide, with a shelter house on the north side along the highway where the passengers get on the platform and where a step is maintained for that purpose.</p> <p>The plaintiff, her aunt and cousin went up onto the platform into the shelter house.</p> <p>The plaintiff stated that she went out of the shelter house and walked up and down in front of same; that she then walked to the north end of the station platform; that she could see that she was at the end of the platform and thought it was about a foot to the ground, stepped down intending to walk a short distance up the track, was mistaken in the distance which was about four feet and fell into a ditch, spraining her ankle. The night was dark, and it was raining. There was no guard rail at north end of platform where accident occurred.</p> <p>Verdict for plaintiff for $2,500.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

Appeal, No. 421, Jan. T., 1916, by defendant, from decree of C. P. Lackawanna Co., in equity, Nov. T., 1915, No. 4, continuing preliminary injunction in case of Pennsylvania Coal Co. v. Joseph Hurney. Motion to continue injunction to restrain defendant from proceeding with tort action pending in New York based on injury sustained in Pennsylvania. Before Newcomb, J. The opinion of the Supreme Court states the case. The lower court continued the injunction. Defendant appealed.

<p>Decedents’ estates — Claims for personal injury — Judgments recovered in Common Pleas Court — Statute of Limitations — Amendments — Misnomer—Correction.</p> <p>1. Statutes permitting amendments are liberally construed to give effect to their intent to prevent a defeat of justice through mere mistakes as to the parties or form of action. If the proper party is actually in court and the effect of the amendment is to correct the name under which he has been sued, an amendment will be allowed.</p> <p>2. At the audit of an executor’s account a claim was presented evidenced by a judgment recovered in the Common Pleas Court against a publishing company. It appeared that the judgment had been rendered in an action for personal injuries occasioned by a delivery wagon owned by the estate which conducted a newspaper business under the name of a publishing company under the directions of decedent’s will; that the publishing company had taken out letters patent but had never completed its corporate organization by recording its charter, that the executor of the estate had taken an active part in the defense and that the attorney for defendant had been paid out of the funds of the estate. The ¿uditing judge rejected the claim on the ground that it was barred by the Statute of Limitations in respect to actions for personal injuries. The Orphans’ Court dismissed exceptions to the adjudication. Meld, that as the executors had appeared and defended the action in the Common Pleas Court, they could not, after the Statute of Limitations had run, be heard to say that they were sued under the wrong name, and the decree was reversed.</p>

<p>Appeal, No. 240, Jan. T., 1915, by Harrington Fitzgerald, Executor, from decree of O. C. Philadelphia Co., April T., 1911, No. 443, dismissing exceptions to adjudication, in Estate of Thomas Fitzgerald, Deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in an opinion by Lamorelle, J. Harrington Fitzgerald, Executor, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

Appeal, No. 242, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913,. No. 4767, for claimant n. o. v., in case of Generoso Rosa v. George Hummel, Defendant, and Emma C. Bergdoll, Claimant. Ejectment to recover land purchased by plaintiff at a sheriff’s sale. Before Martin, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for the land by direction of the court and damages assessed at $1,006.56.

<p>Appeal, No. 273, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1915, No. 3688, on verdict for plaintiff, in case of Rebecca Bernstein v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $10,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeals, Nos. 415 and 416, Jan. T., 1916, by defendant, from decrees of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 4324, in equity and C. P. No. 5, Philadelphia Co., Dec. T., 1914, No. 3086, in equity, for the respective plaintiffs, in cases of John Powell and Jane Powell v. Old Hickory Building and Loan Association and George S. Bussell v. Old Hickory Building & Loan Association.</p> <p>Bill in equity to compel defendant to pay off and extinguish two ground rents. Before Sulzberger, P. J.</p> <p>Bill in equity to compel defendant to pay off and satisfy a mortgage. Before Ralston, J.</p> <p>From the record in the case of Powell v. Old Hickory Building & Loan Association, it appeared that the plaintiffs, in August, 1912, agreed to purchase premises Nos. 3147 and 3149 Chatham street, Philadelphia, for the sum of $950, subject, however, to two redeemable ground rents of $54 each per annum, the redemption money for which amounted, together, to $1,800.</p> <p>As they had no understanding of the financial details or processes involved, they placed it in the hands of a conveyancer properly recommended to them. An acquaintance had named F. A. Friend as a trustworthy conveyancer. It happened that he was also an official conveyancer of the defendant society and had held that position for at least five years. He told them that the transaction was manageable by negotiating a mortgage. They said that they would like to deal with the defendant society.</p> <p>The plan was carried out. The plaintiffs paid Friend the $150. He took out the shares in their names. The defendant agreed to take a first mortgage of $2,600 and paid over that sum to Friend, who handed the $950 to the vendor and thereby procured title for the plaintiffs. He, however, failed to apply the other $1,800 to the redemption of the ground rents and diverted that sum to his own use.</p> <p>The mode in which the building association paid the money was this: They gave to Friend an order on the treasurer to pay $2,600 to the order of John and Jane Powell, handed this order to Friend, who procured the endorsement of John and Jane Powell thereto, took it away, brought it to the treasurer and himself obtained the money in the form of a check drawn to his order as attorney. He collected the money on that check and disposed of it as already stated.</p> <p>Friend’s position as conveyancer of the association was by virtue of a by-law which provided as follows: “The directors shall elect one or more conveyancers who shall be a member of the association, who shall continue in office until their successor or successors are chosen.”</p> <p>The association paid no salary or other compensation to Friend for the performance of his duties as conveyancer. He was the conveyancer as well of the plaintiffs as of the defendant. ' ■</p> <p>From the record in the case of Russell v. Old Hickory Building & Loan Association, it appeared that the plaintiff in August, 1912, was the owner of premises 1104 Duncannon street, against which there was a first mortgage of $3,700 and a second mortgage of $1,400.</p> <p>In August, 1912, the plaintiff made an application to the defendant in the manner hereinafter' stated for a loan of $4,200 on mortgage, and also subscribed to twenty-one shares of the stock of the defendant association.</p> <p>The plaintiff had had some business relations with Friend, and in August, 1912, informed Mm that he desired to pay off the two mortgages on the property 1104 Duncannon street and create a building and loan association mortgage. Friend mentioned several building associations and the plaintiff selected the defendant. Application for the loan was then made to the association by Friend on behalf of the plaintiff. The committee on property of the defendant association recommended the loan, and upon the original application the report of their conveyancer Friend appears, in which he states that he has examined the title to the property offered by Russell, and has taken out the necessary searches and found it all correct.</p> <p>Upon the strength of this report the loan was authorized, and the secretary issued an order to the treasurer of the defendant association to “Pay to the order of G. S. Russell $4,200 for loan on twenty-one shares of the sixty-eighth series, 1104 Duncannon street. Clear by order of the board of directors.” On the foot of this order there was a blank receipt in the following form:</p> <p>“Received from Treasurer Dollars, in full in payment of the above order.”</p> <p>This receipt was given by the treasurer to Friend, who took it to the plaintiff and told him to sign it in order that he (Friend) could get the money from the building association. The order was signed by the plaintiff and subsequently presented by Friend to the treasurer of the association, who thereupon handed to Friend a check drawn to his order as agent for $4,200 less fees, dues and premiums amounting to $170.10, making the net amount of the check $4,029.90.</p> <p>The plaintiff executed a bond and mortgage for $4,200 on 1104 Duncannon street to the defendant association, which was duly delivered to its treasurer.</p> <p>Friend did not pay off the first mortgage of $3,700, but embezzled the money which came into his hands upon payment of the check drawn by the treasurer of the defendant association to his order as agent.</p> <p>Friend paid the interest on the first mortgage of $3,700 as it fell due, so that the fraud was not discovered for some time.</p> <p>The plaintiff prays that the’ defendant be directed to pay off the $3,700 first mortgage, together with interest due thereon, and return to the plaintiff the interest which he has paid on this mortgage.</p> <p>The court in each case awarded the relief prayed for. Defendant appealed from the decree in each case.</p> <p>Errors assigned were in dismissing various exceptions to findings of the trial judges and the decrees of the courts.</p>

<p>Appeal, No. 402, Jan. T., 1915, by defendants, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 485, on directed verdict for plaintiff, in case of The Greek Catholic Church of St. Michael the Archangel (Greek ó Katolicki Cerkovno Bractwo Su. Michaela Archistatiza), a Corporation, v. Maksim Schkodowsky, Ignatuis Schymchak, Michael Holovach, Basil Krupiak, Basil Bulak, Cyprian Maslcyak and Joachim Bwidz in behalf of themselves individually and as trustees of The Congregation of the Greek Catholic Church of St. Michael the Archangel and for and in behalf of all other members of like interest in the Congregation of the Greek Catholic Church of St. Michael the Archangel.</p> <p>Ejectment for the recovery of church property. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff by direction of the court and judgment thereon. Defendants appealed.</p> <p>Error assignedf among others, was in directing a verdict for plaintiff.</p>

Appeal, No. 302, Jan. T., 1915, by defendant, from judgment of C. P. No. 3, PMladelpMa Co., March T., 1913, No. 3802, on directed verdict for plaintiff, in case of Vulcanite Paving Company v. City of PMladelpMa. Assumpsit on contract for paving. Before Davis, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff by direction of the court for $24,-409.39 and judgment thereon. Defendant appealed.

Appeal, No. 303, Jan. T., 1915, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1913, No. 3804, on verdict for plaintiff, in case of Vulcanite Paving Company v. City of Philadelphia. Assumpsit for paving. Before Davis, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $3,840, and judgment thereon. Defendant appealed.

<p>Equity — Easements—Interference — Insufficient evidence — Bill for injunction — Dismissal.</p> <p>Where in a suit in equity to restrain defendants from interfering with plaintiff’s use of a road extending from her property over defendants’ property to a public road, it appeared that the easement was by express grant and not a way by necessity, -and was described as a road or cartway of ten feet wide and there was ample evidence to support the finding of the lower court that the obstruction complained of by plaintiff did not encroach upon her easement but always left a space ten feet in the clear for plaintiff’s use, the bill was properly dismissed.</p>

Appeal, No. 206, Jan. T., 1915, by plaintiff, from order of C. P. Chester Co., Jan. T., 1915, No. 27, discharging rule for judgment for part of plaintiff’s claim, in case of Commonwealth of Pennsylvania, to use of Mary C. George, v. John McPhilips and D. Walter Rickabaugh. Rule for judgment for want of a sufficient affidavit of defense. Before Butler, J. The opinion of the Supreme Court states the facts. The court discharged the rule. Plaintiff appealed.