Volume 258 — Pennsylvania State Reports

<p>Appeal, No. 21, Jan. T., 1917, by plaintiff, from order of C. P. Schuylkill Co., May T., 1916, No. 361, sustaining a demurrer and quashing writ of quo warranto, in case of Commonwealth of Pennsylvania ex relatione Henry Zemholt and Walter Smith v. Michael M. Brennan, John Schuster and Charles F. Hughes.</p> <p>Quo warranto to oust defendants from office as members of council of the Borough of St. Clair. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Defendants demurred to the petition for the writ of quo warranto.</p> <p>The court sustained the demurrer and quashed the writ, which it had issued. Relator appealed.</p> <p>was in quashing the writ of quo warranto.</p> <p>The special Acts of April 6, 1850, P. L. 363, and Aprii 12,1867, P. L. 1181, incorporating the Borough of St. Clair, are in force: Commonwealth v. Brown, 210 Pa. 29,- Nissley v. Lancaster County, 27 Pa. Superior Ct. 405; Com., for use Cambria County, v. Lloyd, 2 Pa. Superior Ct. 6; Affirmed Com., for use Cambria County, v. Lloyd, 178 Pa. 308.</p>

<p>Appeal, No. 22, Jan. T., 1917, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1916, No. 168, sustaining a demurrer and quashing writ of quo warranto in „case of Commonwealth of Pennsylvania ex relatione Nicholas Keller v. George P. Scherr and Garfield D. Evans.</p> <p>Quo warranto proceedings brought to oust respondents from office as members of Council of the Borough of Saint Clair. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts. See Commonwealth ex rel. v. Brennan et al., 258 Pa. 1.</p> <p>Defendants demurred to the suggestion for the writ. The court sustained the demurrer and quashed the writ which it had .issued. Relator appealed.</p> <p>was the orde'r of the court.</p>

<p>Appeal, No. 23, Jan. T., 1917, by plaintiff, from order of C. P. Schuylkill Co., Sept. T., 1916, No. 288, sustaining a demurrer and quashing writ of quo warranto in case of Commonwealth ex rel. C. A. Whitehouse, District Attorney, v. William A. Reese, George W. Wolfe and Frank Post.</p> <p>Quo Avarranto proceedings brought to oust respondents from office as members of Council of the Borough of Saint Clair. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts. See Commonwealth ex rel. v. Brennan et al., 258 Pa. 1.</p> <p>Defendants demurred to the suggestion for the writ. The court sustained the demurrer and quashed the writ which it had issued. Relator appealed.</p> <p>was the order of the court.</p>

<p>Appeal, No. 32, Oct. T., 1917, by James Pappas, Polizoin Maniatakis and Leonidas Maniatakis, from decree of O. C. Allegheny Co., Sept. T., 1916, No. 56, dismissing exceptions to adjudication, in Estate of Andros Maniatakis, Deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. James Pappas, Polizoin Maniatakis and Leonidas Maniatakis appealed.</p> <p>were in dismissing the exceptions.</p> <p>The evidence produced in support of the appellee’s claim is not sufficient to toll the bar of the statute of limitations: Miller v. Baschore, 83 Pa. 356; Hartranft’s Est., 153 Pa. 530; Drawbaugh v. Drawbaugh, 7 Pa. Superior Ct. 349; Love v. Hough, 2 Philadelphia 350; Laforge v. Jayne, 9 Pa. 410; Foringer v. Sission, 14 Pa. Superior Ct. 266; Kensington Bank v. Patton, 14 Pa. 479.</p> <p>The debt was not revived by an unaccepted tender on account: Shreinerv. Cummins, 63 Pa. 374; Drawbaugh v. Drawbaugh, 7 Pa. Superior Ct. 349; Simrell v. Miller, 169 Pa. 326; Huff v. Henderson, 19 Pa. 388.</p> <p>The statute will always be tolled by an unequivocal acknowledgment of the debt as a subsisting obligation or an acknowledgment of the debt which is not inconsistent with a promise to pay: Tyers v. Kuhn, 52 Pa. Superior Ct. 24; Fries v. Boisselet, 9 S. & R. 128; Huff v. Richardson, 19 Pa. 388.</p>

<p>Contracts—Building contracts—Architect’s certificates — Condition precedent to payment—Waiver.</p> <p>In an action for a balance alleged to be due under a building contract defendant alleged that improper materials had been used in disregard of the specifications. The contract provided that all payments should be made only on certificate of the architect but it appeared that no certificate had been given and that the provision' of the contract relating thereto had been repeatedly disregarded, that the architect was satisfied with the work, and that deviations from the contract complained of had been made at his direction. It further appeared that the work had been almost daily under the supervision of the owner, who made no complaint with respect thereto. Held, a verdict for the plaintiff was warranted by the evidence and the court properly refused to enter judgment for defendant n. o. v.</p>

<p> Wills—Testamentary incapacity—Undue influence—Meretricious relations—Devisavitvel non—Insufficient evidence. </p> <p>1. Where a will is attacked on the ground of lack of testamentary capacity, the inquiry must relate to that period of time when the will was executed, published and declared.</p> <p>2. The fact that testator sustained meretricious relations with the.chief beneficiary in his will does not raise á presumption that the will was made under a constraining influence exerted by the paramour. Such influence must be proven as any other independent fact, by adducing such additional evidence as would not warrant any other reasonable inference than that the influence of the relation produced the will by actual or moral constraint to a degree that the-testator was unable to resist.</p> <p>3. An issue devisavit vel non, asked for on the ground of testamentary incapacity, was properly refused where the only evidence relied upon to establish incapacity was that of á physician who had attended deceased for a period of eight years prior to his death and •who testified that he observed no mental decline until on an occasion two and one-half months before the execution of the will, when deceased was in his seventy-seventh year, deceased declared that he was annoyed by red devils with forked tails who had danced upon him during the night, and such physician further stated that there were days in the month preceding the execution of the will when deceased was entirely free from delusion and clear in mind, when he -knew his relatives and had an intelligent understanding of the value of his estate; and two reputable attorneys, witnesses to the execution of the will, testified that testator was in full possession of his faculties .and had himself dictated the will and was fully informed with respect to all that it contained.</p> <p>4. In such case it appeared that testator was a collector of curios and bric-a-brac and was an intimate friend of ,a dealer in such objects and the wife of such dealer; that he frequently visited their store during the lifetime of testator’s wife and thereafter; that during his wife’s lifetime he had given them large legacies in a previous will. After his wife’s death, testator made the will in controversy in which he bequeathed $100,000 to his housekeeper “in appreciation of her kindness to my beloved wife,” and gave the residue of his estate to the art dealer and his wife. The will was executed in the presence of two lawyers, no other persons being present. For some time prior to the execution of the will, testator’s social intercourse was limited to the family of the art dealer and the only person from whom he received any personal attention was his housekeeper. Testator had relatives but was indifferent to them. Contestants alleged no physical coercion on testator, but produced some evidence of criminal relations between testator and the wife of the art dealer, but there was no evidence that such relation produced a moral constraint over testator in the making of his will. Held, there was no sufficient evidence of the undue influence and an issue devisavit vel non was properly refused.</p>

<p>Appeal, No. 397, Jan. T., 1917, by Ella Murphy, from decree of O. C. Lackawanna Co., Year 1914, No. 352, discharging rule to show cause why respondent should not pay over certain money to petitionei, in Estate of Bernard J. Murphy, Deceased.</p> <p>The proceeding in the court below was for a rule on a member of the bar to pay over to the appellant moneys in his hands which she alleged belonged to her. The matter was disposed of on petition, answer, replication and motion to dismiss the petition. The petition, answer and motion to dismiss are as follows:</p> <p>PETITION.</p> <p>To the Honorable M. F. Sando, President Judge of the Orphans’ Court of Lackawanna County:</p> <p>The petition of Mrs. Ella Murphy respectfully represents :</p> <p>That George F. O’Brien is a duly qualified attorney practicing chiefly in the courts of Luzerne County, State of Pennsylvania, but is a registered member of the bar of Lackawanna County and of the bar of the Orphans’ Court of the said county; that your petitioner is the widow of Bernard J. Murphy, late of the City of Carbon-dale, County of Lackawanna and State of Pennsylvania, who died testate and whose will was duly probated in the register’s office in said county, and whose estate is being adjudicated in your honorable court; that shortly after the death of the said Bernard J. Murphy, yóur petitioner employed the said George F. O’Brien as her attorney to represent her in a proceeding relating to the administration and distribution of the estate of her late husband; that it was agreed then and there between the said George F. O’Brien and your petitioner that his fee or compensation for all work that should be done for and on her behalf, relating to the protection of her interests in the said estate and the securing of her share therefrom should not exceed the sum of $500.00; that your petitioner was not the administrator or executor of the said estate, and that, therefore, the said George F. O’Brien had nothing to do with conserving the affairs of the estate, gathering in its assets or distribution to the creditors except to guard the interests of your petitioner; that under the advice of the said George F. O’Brien, your petitioner elected to take against the will of the decedent, and that the proper proceedings were taken by the said George F. O’Brien' to secure the interests of your petitioner in that behalf, and that his action in this regard was practically all that was done by the said George F. O’Brien for.or on behalf of your petitioner; that such proceedings are simple, perfunctory and not complicated; that the proceedings were so proceeded with'; that your petitioner was awarded out of the said estate the sum of $4,500.00; that this sum of money was paid to her by a check drawn by the executor in the office of Joseph O’Brien, of the Lackawanna bar, in the Mears Building, City of Scranton, said check being payable to her order and, being handed to her by the said Joseph O’Brien in the presence of her then attorney, George F. O’Brien; that at the suggestion of her said attorney, George F. O’Brien, your petitioner and the said George F. O’Brien proceeded to the Hotel Casey, in said City of Scranton, where your petitioner was induced by her said attorney, George F. O’Brien, to endorse the said check over to him, the said George F. O’Brien; that thereupon the said George F. O’Brien having secured possession of the said check, retained the same and delivered to your petitioner his own personal check in the sum of $2,500.00, and departed, retaining the check for $4,500.00; that this was done against the protests of your petitioner; that the said George F. O’Brien subsequently deposited the said ;check of $4,500.00, and has received the money thereon; that he has thereby retained out of the sum of $4,500.00, secured from your petitioner, the sum of $2,000.00, that demand has been made upon him to pay over to your petitioner the said money, after the deduction of a reasonable fee, but the said George F. O’Brien has neglected and refused to pay over the said sum of money to your petitioner or any part thereof.</p> <p>Wherefore your petitioner prays that a rule be granted upon the said George F. O’Brien to show cause why he should not pay over to your petitioner the said sum of $2,000.00, or such part thereof as remains after the deduction of such reasonable fee for his services as to jour honor may seem proper.</p> <p>ANSWER OP GEORGE P. O’BRIEN.</p> <p>To the Honorable M. F. Sando, President Judge of the Orphans’ Court of Lackawanna County:</p> <p>George F. O’Brien, answering the petition in above entitled case, avers:</p> <p>That your respondent is a qualified attorney, a member of the Bar of Luzerne County, and of the Supreme Court of Pennsylvania.</p> <p>That Bernard J. Murphy, late of the City of Carbon-dale, died on April 24, 1914, testate, leaving to survive ' him a widow, and no issue.</p> <p>That by the terms of the will of the said Bernard, J. Murphy, deceased, (which will is probated in the office of the register of wills of Lackawanna County, to No. 52 of 1914) the said Ella Murphy, petitioner, was left but a small annuity. 1</p> <p>That shortly after the death of the said Bernard J. Murphy, the petitioner sent for your respondent and retained him to represent her in the settlement of the said, estate.</p> <p>That on the advice-of your respondent, the petitioner, Ella Murphy, elected to take against the will of her deceased husband, Bernard J. Murphy, and through the efforts of your respondent she was awarded by your honorable court, on March 15,1915, the sum of five thousand three hundred dollars ($5,300) and in addition thereto one-half the balance of the estate of said decedent, which in all, will amount to more than $20,000.</p> <p>That your respondent, who has continued to represent the petitioner since his original employment, specifically denies, that it was at any time agreed between him and the petitioner, that his fee or compensation for all work that should bé done for her on her behalf relating to. the protection of her interest in the said estate and the securing of her share therefrom should not exceed the sum of $500.00, and avers that the petitioner agreed to pay your respondent for his services the sum of $2,000, and in addition thereto, his actual expenses incurred by reason of his employment, the said sum of $2,000.00 to be paid by the petitioner out of the first moneys to be received by her from the said estate.</p> <p>That in pursuance of said agreement the petitioner, Ella Murphy, on "the 18th day of December, 1915, did knowingly and willingly pay to your respondent the said sum of $2,000.00, and is still indebted to your respondent for expenses incurred by him in the course of his employment, and for legal services on matters not - connected with the said estate, amounting to five hundred dollars ($500.00).</p> <p>That the petitioner made no complaint in reference to the fee paid by her to said respondent for many weeks after the payment thereof or until the middle of February, 1916, when your respondent was notified by counsel for the petitioner in these proceedings that she was dissatisfied with the amount paid by her to your respondent.</p> <p>Wherefore, your respondent prays that the petition in this case, unjustly brought, shall be dismissed at the costs of the said petitioner.</p> <p>MOTION TO DISCHARGE RULE.</p> <p>Now, to wit, August 28, 1916, comes George F. O’Brien, the respondent in the rule granted in the above stated case, and by his attorneys, Charles B. Lenahan and David J. Beedy, moves to dismiss the rule granted on him, and assigns therefor the following reasons:</p> <p>(1) The court has no jurisdiction of the person of George F. O’Brien for the reason that he is not a member of the Orphans’ Court of this county.</p> <p>(2) The court has no jurisdiction of the subject-matter in controversy.</p> <p>Wherefore the respondent prays that the rule be dismissed.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The court discharged the rule. Petitioner appealed.</p> <p>was the order of the court.</p>

<p> Unfair trade competition—Fraudulent intent—Beer kegs—Markings—Equity—Injunction. </p> <p>1. Any conduct, the natural and probable effect of which is to deceive the public, so as to pass off the goods or business of one person as and for that of another, constitutes actionable unfair trade competition. If the effect be to injure the plaintiff, the fact that defendant had no fraudulent intent is no defense.</p> <p>2. A dealer coming into a field already occupied by a rival of established reputation must do nothing which, will unnecessarily create or increase confusion between his goods or business and the goods or business of his rivals.</p> <p>3. Irrespective of the question of trade-mark, a manufacturer has no- right to enclose his product in packages so like those of a rival manufacturer as to deceive a purchaser, or 'to enable a dealer to do so.</p> <p>4. In a suit in equity brought by a brewing company to enjoin a rival company from injuring plaintiff’s business by unfair trade competition, it appeared that for forty years plaintiff had distinctively marked its beer containers by a red band painted around each container between the first and second hoops at one end, and a blue band similarly painted at the other. The chimes and a ring adjoining on each end were also painted in colors like the bands. Plaintiff for many years had done a large business in the county where the suit was brought, and its beer was regarded as of a superior quality, and was largely known among dealers and customers by the distinctive painting of its kegs and barrels. Defendant had. been engaged in the manufacture and sale of beer in a small way for fifteen years; its barrels and kegs had been previously marked by yellow bands, but shortly before the suit was brought it had repainted its containers in all respects practically like the containers of plaintiff, so that the casual observer would mistake the one for the other. It appeared that in many instancesplaintifE was caused inconvenience and delay in collecting its kegs, and that plaintiff’s customers who could not read English were unable to distinguish plaintiff’s containers from defendant’s containers. Defendant disclaimed any fraudulent intent in repainting its barrels like plaintiff’s, and alleged that the barrels were so painted because customers objected to yellow and because defendant had a quantity of red paint in ‘stock, and further contended that their colors were of a different shade from plaintifE’s. Meld, there was no error in awarding an injunction as prayed for.</p>

<p>Appeal, No. 347, Jan. T., 1916, by plaintiff, from judgment of C. P. Franklin Co., Feb. T., 1916, No. 15, on verdict for defendant, in case of Martin F. Hammond v. Philip A. Hammond.</p> <p>Trespass for alleged injuries to real estate. Before Gillan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>were rulings on evidence and instructions to the jury.</p> <p>A grant of a right of way gives nothing to the grantee except the right of way; the ownership of the soil remains in the owner of the servient tenement and the latter will not be deprived of the use of the soil in any way that does not interfere with the easement: Hartman v. Fick, 167 Pa. 18; Mercantile Library Co. of Philadelphia v. Fidelity Trust Co., 235 Pa. 5; Gebhart v. Graves, 36 Pa. Superior Ct. 228.</p> <p>The defendant having used the right of way in a certain manner for many years may not change or enlarge it without a new grant: Helwig v. Miller, 47 Pa. Superior Ct. 171; Liquid Carbonic Co. v. Wallace, 219 Pa. 457; Ebert v. Mishler, 234 Pa. 609; Winslow v. Vallejo, 5L. R. A. (N. S.) 851.</p> <p>The grantee of a defined right of way has the right to do whatever is necessary to make it passable or usable for the purposes named in the grant: Senhouse v. Christian et al., 1 Term Rep. 560; White v. Eagle & Phoenix Hotel Co., 68 N. H. 38 (34 Atl. Repr. 672); Nichols v. Peck, 40 L. R. A. 81.</p> <p>- The defendant could not be expected to provide against extraordinary floods: Thatcher v. Baker, 109 Pa. 22; Bell v. M’Clintock, 9 Watts 119; McCoy v. Danley, 20 Pa. 85.</p>

<p> Contracts—Street railway companies—Streets—Repairs—Common law duty—Ordinances—Special privilege—Derogation of public right—Construction—Strict or liberal intention—Construction by parties—Equity—Jurisdiction—Specific performance. </p> <p>1. A street railway company is under a common law duty to keep the portions of a street occupied by its right of way in good condition and repair.</p> <p>2. The duty to repair where it exists extends to the replacement of an óld pavement by a new one of a different and improved kind; materials should be used such as will correspond with the general condition of the street at the time the repairs are needed. While the company is not compelled to tear up a sound pavement of antiquated style and replace it with, a different and better one, yet if a necessity for repairing the pavement within the right of way arises after an improved pavement has been laid in the remainder of the street by the city, the city may require the company reasonably to conform to such improved pavement.</p> <p>3. A municipal ordinance granting a street railway a right to maintain tracks in a public street is a grant of a special privilege, affecting the general public interests and in derogation of the right of the public to the full and unobstructed use of the streets; its provisions must, therefore, be construed strictly against the grantee and liberally in favor of the public, and no privileges or exemptions will be deemed to have passed, unless given in clear and explicit terms.</p> <p>4. A court of equity has jurisdiction to decree specific performance of a contract between a street railway company and a municipality, whereby the street railway company is required to keep the portion of the streets occupied by its right of way in proper repair.</p> <p>5. In ,a suit in equity brought by a borough to compel a street railway company to pave certain streets between and adjoining its tracks with material similar to that used by the borough in paving the remainder of the highway it appeared that the ordinance granting the defendant the right to operate its railway upon certain streets provided that “the said company shall be required, at the time of construction of said railway between its tracks and for a distance of twenty-four inches outside of each rail, to pave with material or pavements similar to that now in use, or which may in the future be used or adopted by said borough, and keep and maintain the same in good condition, so that driving on, off or' 'across said track or tracks shall be safe and not inconvenient, and be constructed so as not to impede travel.” At the time of the construction of the road plaintiff’s streets were macadamized and defendant macadamized the space between its tracks. In 1913 plaintiff provided by ordinance for the repaving of certain streets with vitrified brick, and defendant thereupon repaved its portion of such streets with the same material. In 1916 plaintiff provided for the paving of certain other streets with vitrified brick and notified defendant to pave its portion of the highways with the same material. Defendant refused to comply with the provisions of the ordinance, on account of the “present financial condition” of the company. The lower court found that the streets referred to in the ordinance of 1916 were in need of construction and repair, and directed specific performance of the contract. Held, no error.</p>

<p> Beal property—•Abandonment—Ejectment—Deeds—Construction —Turnpike companies—Turnpikes sold to Commonwealth. </p> <p>1. The characteristic element of abandonment is the voluntary relinquishment of ownership, whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker.</p> <p>2. A transfer of a turnpike by the turnpike company to the Commonwealth for a consideration is not an abandonment of the turnpike.</p> <p>3. A deed conveying certain real estate to a turnpike company, its successors and assigns, provided “in case the said turnpike road shall be abandoned by the said turnpike company then the house and lot hereby conveyed shall revert to said (grantor) his heirs and assigns.” Subsequently the turnpike company conveyed its turnpike road to the Commonwealth for a consideration. In an action of ejectment by the Commonwealth for the real estate which had been conveyedto the turnpike company, defendants, claiming under the original grantors of the land, alleged that the sale of the turnpike to the Commonwealth was an abandonment and that the property had reverted to them. The trial judge directed a verdict for plaintiff upon which judgment was entered. Meld, no error.</p>

<p>Appeal, No. 255, Jan. T., 1916, by Otto Shover, Administrator c. t. a., and Otto Shover, Hattie Itterly and Amsie Albert, from decree of O. 0. Northampton Co., setting aside probate of an alleged nuncupative will and refusing an issue d. v. n., in Estate of Mary Alice Shover, deceased.</p> <p>Appeal from decree of Register of Wills admitting to probate the last will and testament of Mary Alice Shover, deceased. Before Stewart, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Orphans’ Court set aside the probate of the will and refused an issue d. v. n. Otto Shover, administrator c. t. a., and Otto Shover, Hattie Itterly and Amsie Albert appealed.</p> <p>were rulings on evidence, various findings of fact and law, and the decree of the court.</p>

Appeal, No. 257, Jan. T., 1916, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1915, No. 66, on verdict for plaintiff, in case of Margaret Maley, Executor of the Last Will and Testament of Martin Maley, deceased, v. Pennsylvania Bail-road Company. Assumpsit for funds deposited with defendant by plaintiff’s decedent. Before Maxwell, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $1,941.39, and judgment thereon.

<p>Appeal, No. 1, Jan. T., 1917, by Elizabeth Kremer, Administratrix of Albert O. Kremer, from decree of C. P. Fayette Co., No. 744, in equity, appointing receivers, and awarding an injunction, in case of Fuller Hogsett and David L. Durr v. Josiah V. Thompson, Defendant, Elizabeth Kremer, Administratrix of Albert C. Kremer, Petitioner to Intervene.</p> <p>Bill in equity for an injunction and for the appointment of a receiver. Before Van Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded the relief prayed for. Elizabeth Kremer, Administratrix of Albert C. Kremer, appealed.</p> <p>were in dismissing exceptions to various findings of fact and conclusions of law, and the decree of the court.</p> <p>The court was without jurisdiction to make the decree. Courts of equity in Pennsylvania possess no general chancery jurisdiction: Gilder v. Merwin et al., 6 Wharton 522; Pitcairn v. Pitcairn, 201 Pa. 368; Power v. Grogan, 232 Pa. 387.</p> <p>No Pennsylvania statute confers such jurisdiction: Commonwealth v. Bank of Penna., 3 W. & S. 184; Sand-ford v. Catawissa, Williamsport & Erie R. R. Co., 24 Pa. 378; Sarver & Others’ App., 81% Pa. 183; Gilder v. Merwin et al., 6 Wharton 522.</p> <p>The pendency of a suit is essential to authorize the appointment of a receiver, except in the case of infants and lunatics: Anonymous, 1 Atkyn (Eng.) 578; Ex parte Whitfield, 2 Atkyn (Eng.) 315; Ex parte Mountfort, 15 Yes. 445; Crowder, Newman et al. v. Moone, 52 Ala. 220; Baker et al. v. Admr. of Bakus, 32 111. 79; Merchants’ & Manufacturers’ National Bank v. Kent, Circuit Judge, 43 Mich. 292; Jones v. Schall, 45 Mich. 379; Hardy v. McClellan, 53 Miss. 507.</p> <p>The Chancery Act of June 16, 1836, P. L. 784, was never intended to hinder and obstruct the collection of valid claims: Winch’s App., 61 Pa. 424; Scott v. Farmers’ Loan & Trust Co. et al., 69 Fed. Repr. 17; Glenn v. Liggett, 47 Fed. Repr. 472.</p> <p>The decree impairs the obligation of contracts: Breitenbach v. Bush, 44 Pa. 313; Bnnn v. Gorgas, 41 Pa. 441; Chadwick v. Moore, 8 W. & S. 49; Penrose v. Erie Canal Co., 56 Pa. 46; Long’s App., 87 Pa. 114; Oshkosh Waterworks Co. v. Oshkosh City, 187 U. S. 437; Alton’s Est., 220 Pa. 258; Galey v. Guffey, 248 Pa. 523.</p> <p>The plaintiffs have shown no equitable cause of action: Hoops & Townsend Co. v. Ebel, 37 Pa. Superior Ct. 459.</p> <p>The plaintiff’s are simply contract creditors who have not reduced their claims to judgment; they are, therefore, not such parties as may invoke the equitable jurisdiction of the court :v Scott v. Neely, 140 U. S. 106; Hollins v. Brierfleld Coal & Iron Co., 150 U. S. 371; Cates v. Allen, 149 U. S. 451; Maxwell et al. v. McDaniels et al., 184 Fed. Repr. 311; Rainey v. Freeport Smokeless Coal & Coke Co., 58 W. Va. 424 (52 S. E. Repr. 528); Thompson v. Adams, 60 W. Va. 463 (55 S. E. Repr. 668) ; Uhl v. Dillon et al., 10 Md. 500; Bayand & Berard v. Fellows, 28 Barb. (N. Y.) 451; McGoldrick et al. v. Slevin et al., 43 Ind. 522; Hubbard v. Hubbard, 14- Md. 356; Rich v. Levy, 16 Md. 74; Blondheim, Goodman et al. v. Moore, 11 Md. 365; Holdredge v. Gwynne et al., 18 N. J. Eq. 26; Young et al. v. Frier & Duttenhoeffer et al., 9 N. J. Eq. 465; Phelps et al. v. Foster, 18 111. 309; Bigelow et al. v. Andress et al., 31 111. 322; Rhodes v. Cousins, 27 Va. 188.</p> <p>This is a creditors’ bill filed by unsecured creditors whose claims are admitted for the purpose of conserving equitable assets and preventing their unnecessary sacrifice, so that they may be sold and the proceeds applied to the payment of the claims of the plaintiffs and other creditors of the same class: Adam’s App., 113 Pa. 449.</p> <p>In a creditor’s suit, a court of equity has power to appoint a receiver, irrespective of whether the property is owned by an individual or by a corporation: Galey v. Guffey, 248 Pa. 523; Wiswall v. Sampson, 55 U. S. 52; Walling v. Miller, 108 N. Y. 173 (15 N. E. Eepr. 75) ; Eose & Gauss v. Beevan et al., 10 Md. 466; Ivuhl v. Martin et al., 26 N. J. Eq. 60; McCullough v. Jones/ 91 Ala. 186 (8 So. Eepr. 696) ; Ahlhauser v. Doud, 74 Wis. 400 (43 N. W. Eepr. 169); Hirsch v. Israel, 106 Iowa 498 (76 N. W. Eepr. 811) ; Eunals v. Harding et al., 83 111. 75; Pettibone v. Byrne, 97 Mich. 85 (56 N. W. Eepr. 236); Gage v. Smith et al., 79 111. 219; Wessel v. Brown et al., 78 Tenn. 685.</p> <p>The substance of this action being to prevent the waste and sacrifice of equitable assets and to sell the same and apply the proceeds equally in payment of the claims of the plaintiffs and other creditors, is clearly within the language of the statutes granting chancery jurisdiction to Courts of Common Pleas in Pennsylvania.</p> <p>The total inadequacy of the legal remedies in this case furnishes a very cogent reason'for the exercise of equitable jurisdiction: Penna. E. E. Co. v. Bogert, 209 Pa. 589; Blair v. Supreme Council American Legion of Honor, 208 Pa. 262; Johnson v. Price, 172 Pa. 427; New London Bank & Union Bank v. Lee et al., 11 Conn. 112.</p> <p>The facts of this case show a situation precisely analogous to a corporation or partnership, in which cases receivers are frequently appointed in creditors’ suits for the sole purpose of preventing a sacrifice of assets by execution and other forced sales: Blum Bros v. Girard Natl. Bank et al., 248 Pa. 148; United States Brick Co. v. Heading Shale Brick Co., 228 Pa. 81; Tenth National Bank of Philadelphia v. Smith Construction Co., 242 Pa. 269; Duplex Printing Co. v. Clipper Publishing Co., 213 Pa. 207; Cowan v. Penna. Plate Glass Co., 184 Pa. 1; Sage v. Memphis & Little Eock E. E. Co., 125 U. S. 361; Ee Metropolitan Ey. Eeceivership, 208 U. S. 90; Penna. Steel Co. et al. v. New York City Ry. Co. et al., 198 Fed. Repr. 736.</p> <p>A creditor’s bill may be maintained' without first recovering a judgment in cases where the claim is admitted in the answer and the facts show an execution would be of no avail: Cowan v. Penna. Plate Glass Co., 184 Pa. 1 j Blum Bros. v. Girard Nat. Bk. et al., 248 Pa. 148; Case v. Beauregard, 101 U. S. 688; Horn v. Pere Marquette, R. R. Co., 151 Fed. Repr. 626; American Can Co. et al. v. Erie Preserving Co., 171 Fed. Repr. 540; Union Trust Co. et al. v. Southern Sawmills & Lumber Co. et al., 166 Fed. Repr. 193; Cincinnati Equipment Co. v. Degnan, 184 Fed. Repr. 834; Robinson v. Mutual Reserve Life Ins. Co., 162 Fed. Repr. 794; Citizens Bank & Trust Co. et al. v. Union Mining & Gold Co., 106 Fed. Repr. 97; Walker v. United States Light & Heating Co., 220 Fed. Repr. 393; Closser et al. v. Strawn, 227 Fed. Repr. 139; Burton v. Peters Salt & Lumber Co., 190 Fed. Repr. 262.</p>

<p>Appeal, No. 77, Jan. T., 1917, by William J. Kyle, Intervening Defendant, from decree of C. P. Fayette Co., No. 744, in equity, awarding an injunction and appointing receivers, in case of Fuller Hogsett and David L. Durr v. Josiah V. Thompson.</p> <p>Bill in. equity for an injunction and for the appointment of a receiver. Before Yan Swearingen, P. J.</p> <p>The facts appear in Hogsett et al. v. Thompson et al., 258 Pa. 85.</p> <p>The court awarded the relief prayed for. William J. Kyle, intervening defendant, appealed.</p> <p>were in dismissing exceptions to various findings of fact and conclusions of law, and the decree of the court.</p>

<p>Appeal, No. 390, Jan. T., 1916, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1912, No. 3731, on verdict for plaintiff, in case of Sophie K. Weinschenk v. Philadelphia Home Made Bread Company, a Corporation.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,616 and judgment thereon. Defendant appealed.</p> <p>'were rulings on evidence, instructions to the jury, the refusal to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p> <p>The evidence was insufficient to establish defendant’s negligence.</p> <p>The ordinance was improperly admitted in evidence: Ubelmann v. American Ice Co., 209 Pa. 398; Riegert v. Thackery, 212 Pa. 86; Allen v. Torcolora Valley R. R. Co., 229 Pa. 97.</p> <p>The deceased was guilty of contributory negligence: Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610; Keiser v. Lehigh Valley R. R. Co., 212 Pa. 409; Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450; Welsh v. Erie & Wyoming Valley R. R. Co., 181 Pa. 461.</p> <p>The evidence of negligence on the part of the defendant was of such a character as not only to make imperative its submission to the jury but also to carry conviction of its existence: Ferry v. Philadelphia Rapid Transit Co., 232 Pa. 403; Madden v. Lehigh Valley R. R. Co., 236 Pa. 104; Philadelphia & Reading R. R. Co. v. Huber et al., 128 Pa. 63; Glancy v. McKees Rocks Boro., 243 Pa. 216; Henderson v. Continental Refining Co., 219 Pa. 384; Hannals v. Sylvania Twp., 255 Pa. 156.</p> <p>Where two causes combine, contribute or concur to produce injuries, a person is not relieved from liability because he is responsible for only one of such causes. Siever v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 252 Pa. 1; Wood v. Penna. R. R. Co., 177 Pa. 306; McKenna v. Citizen’s Natural Gas Co., 198 Pa. 31; Eagle Hose Co. v. Priceburg Elect. Light Co., 33 Pa. Superior Ct. 581; Burrell Twp. v. Uncapher, 117 Pa. 353; Plymouth Twp. v. Graver, 125 Pa. 24; Deserant v. Cerillos Coal R. R. Co., 178 U. S. 409.</p> <p>The city ordinance of 1908 was properly admitted in evidence: Erie City v. Sehwingle, 22 Pa. 384; Seward v. Harrisburg Boot & Shoe Mfg. Co., 20 Pa. D. R. 1064; Ubelmann v. American Ice Co., 209 Pa. 398.</p> <p>The question of assumption of risk was for the jury: Madden v. Lehigh Valley R. R. Co., 236 Pa. 104; Valjago v. Carnegie Steel Co., 226 Pa. 514; Rummell v. Dilworth, 111 Pa. 343; Stewart v. Central R. B.’ of N. J., 235 Pa. 311; Vorhees y. Lake Shore & Mich. Southern Ry. Co., 193 Pa. 115; Humphreys v. Raleigh Coal & Coke Co., 73 W. Va. 495; Meloy v. Chicago & North Western Ry. Co., 77 Iowa 743; Craig v. Chicago & Alton R. R. Co., 54 Mo. App. 523; Mertz v. A. Leschen & Sons Rope Co., 174 Mo. App. 94; Benzing v. Steinway, 101 N. Y. 547; Warn y. New York Central & Hudson River R. R. Co., 80 Hun. 71; Hollingsworth v. Long Island R. R. Co., 91 Hun. 641; Mackie v. Webster Mfg. Co., 175 111. App. 385.</p> <p>The question of contributory negligence was peculiarly and necessarily for the jury: McManamon v. Hanover Twp., 232 Pa. 439; Ferry v. Philadelphia Rapid Transit Co., 232 Pa: 403.</p>

Appeal, No. 202, Jan. T., 1916, by A. Blanche Matiser, from order of C. P. Luzerne Co., Oct. T., 1914, No. 853, discharging rule to show cause why judgment should not be stricken off in case of John C. Murray and Catherine Mulvey v. A. Blanche Randall, now A. Blanche Matiser, and John Morrett. Ejectment for the recovery of land in Luzerne County.

Appeal, No. 316, Jab. T., 1916, by defendant, from judgment of C. P. Luzerne Co., May T., 1915, No. 546, on verdict for plaintiff in case of Mary Ann Ford v. Lehigh and Wilkes-Barre Coal Company. Trespass to recover damages for death of plaintiff’s son. Before Woodward, J. From the record it appeared that Stanley Ford, the plaintiff’s son, was employed at the Hollenbach No. 2 colliery or slope of the defendant in Luzerne County, on April 18,1914.

<p>Appeal, No. 321, Jan. T., 1916, by petitioners, from decree of C. P. Luzerne Co., Nov. T., 1915, No. 274, refusing petition for amendment of charter in re Amendment to Charter of the Yerhovay Aid Association.</p> <p>Petition to amend charter of fraternal and beneficial association. Before Fuller, P. J.</p> <p>From the record it appeared that at a convention of the Yerhovay Aid Association, the majority of the two hundred and two delegates voted in favor of the change in the location of the association’s principal place of business. There was no evidence as to whether the delegates at such convention voted upon the authority and with the knowledge of the branches and members, or merely upon their individual judgment. The membership of the association was approximately sixteen thousand.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>among others, was in refusing to allow the amendment,</p>

<p> Statutes—Construction—Intention. </p> <p>1. Where there is an apparent conflict between different parts of a statute, the general purpose of the legislature roust be considered and, if the language will permit, such construction must be applied as will give effect to every part of the law. A statute will not be construed so as to defeat the object of the legislature if it can reasonably be avoided.</p> <p>2. Literal construction of the language of a part of an act cannot prevail if another interpretation is clearly dedueible which will better effect the manifest purpose of the general legislative intent.</p> <p>3. It is presumed, as well on the ground of good faith as on the .ground that the legislature would not do a vain thing, that it intends its acts and every part of them to be valid and capable of being carried out.</p> <p> Municipalities—Cities of third class—Ordinance—Petition for repeal or referendum—Sufficiency—Refusal to reconsider—Act of June 27, 1913, P. L. 568, Secs. 19 and 20—Mandamus. </p> <p>4. A petition presented by electors of a city of the third class protesting against the passage of an ordinance, and requesting its reconsideration and repeal or submission to a vote of the city electorate, is sufficient if in the form required by Article XX (the referendum article) of the Act of June 27,1913, P. L. 568, and need not be prepared, signed and perfected in accordance with the provisions of Article XIX (the initiative article) of the said act.</p> <p>5. The city council of a city of the third class passed an ordinance awarding a lighting contract to an electric company. Within ten days a petition of qualified electors of the city, signed by voters equal in number to more than twenty per cent, of the entire number of votes cast for all candidates for mayor at .the last preceding general • election at which a mayor was elected, was presented to council, protesting against the passage of the ordinance and requesting its reconsideration and repeal, and if not repealed that it be submitted to a vote of the people of the city. The council refused to reconsider the ordinance or submit it to a vote of the electors. The district attorney petitioned for a writ of mandamus to compel the mayor and council to reconsider the ordinance and to cause the same, if not repealed, to be submitted to the electors of the city. The mandamus was refused on the ground that .the petition to council was defective in that the formalities required by Article XIX of the Act of 1913 had not been complied with. Held, that Article XIX did not apply to petitions of pro-test against the passage of ordinances, but only to proceedings for the initiation of legislation, and the order was reversed and a writ of mandamus was awarded as prayed for.</p>

<p>Practice, 0. P.—Judgment for want of sufficient affidavit of defense—Rule for judgment—Death of defendant before argument— Subsequent judgment—Opening judgment — Setting aside judgment,</p> <p>1. In a suit on a contract made by a decedent his personal representative is not required to file an affidavit of defense as to matters which arose before decedent’s death.</p> <p>2. The court will not enter judgment against a decedent for want of a sufficient affidavit of defense, when, under its own rules, had he lived, he might have added to his defense.</p> <p>3. In an action against the endorser of a promissory note a rule was taken for judgment for want of a sufficient affidavit, but the defendant died before the rule was called for argument. Thereafter decedent’s administrator was substituted as defendant, and the rule for judgment was argued and made absolute. Defendant petitioned the court to open and set aside the judgment. The rule of the lower court regulating motions for judgment for want of sufficient affidavits of defense provided that at any time before the application for. judgment defendant might file a supplemental affidavit. Held, the lower court did not err in opening, the judgment.</p> <p>4. In suchocase, it seems that the setting aside of the judgment would have been a more appropriate remedy.</p>

<p>Appeal, No. 197, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1914, No. 2158, striking off judgment in case of The Handel and Hayden Building and Loan Association y.-William J. Elleford and Eleise H. Elleford, defendants, and Charles C. Wells, terre-tenant.</p> <p>Rule to strike off judgment. Before Patterson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court made absolute the rule to strike off the judgment. Plaintiff appealed.</p> <p>among others, was in striking off the judgment.</p> <p>Wells was properly joined as terre-tenant: West y. Nixon, 3 Grant (Pa.) 236; Mitchell v. Hamilton, 8 Pa. 486; Chahoon v. Hollenback, 16 S. & R. 425; McKee y. Gilchrist, 3 Watts 230; Statute of 13 Eliz. c. 5; Luther y.. Luther, 242 Pa. 530; Weihl v. Distche, 34 Leg. Intell. 338; Dengler y. Kiehner, 13 Pa. 38; Miner y. Warner, 2 Grant (Pa.) 448; Saunders v. Wagonseller, 19 Pa. 248; Haak’s App., 100 Pa. 59;, Drum y. Kelly; 34 Pa. 415; Colwell v. Easley, 83 Pa. 3.1; Hulett v. Mutual Life Insurance Co., 114 Pa. 142; Gibbs v. Tiffany, 4 Pa. Superior Ct. 29; Buck-by v. Sturtevant, 28 Pa. Superior Ct. 552; Hanhauser v. ■ Penna. & New England R. R. Co. (No. 2), 222 Pa. 244; Boyer v. Rees, 4 Watts 201; Barrell v. Adams, 26 Pa. Superior Ct. 635.</p>

<p>Negligence—Street railways — Team — Bight angle collision — Excessive speed of car—:Failure to give warning of approach— Horses beyond driver s control—Heath—Contributory negligence— Case for jury.</p> <p>1. It is the duty of a driver of a team to look in both directions immediately before entering upon the tracks of a street railway.</p> <p>2. In an action against a street railway company to recover for the death of plaintiff’s decedent, resulting from a right-angle collision at a street intersection between a team which decedent was driving and a trolley car, the questions of defendant’s negligence and decedent’s contributory negligence were for the jury where it appeared .that at the time of the collision defendant’s ear was running at a speed of from 30 td 35 miles an hour; that it approached the crossing without attempting to reduce its speed or give warning of its approach; that the curb lines of both streets were occupied by trees and the view of the decedent was interfered with by the foliage to such an extent that he could not see the car until he had passed the curb line; that witnesses who observed the accident from the car stated .that they first saw the decedent when the ear was about 200 feet from the point of the collision and the horses’ heads were then within about 12 feet of the track, advancing on a down grade at “a little jog” or “fast walk”; and where there was evidence that when the horses were about 20 feet from the track the decedent, who was an experienced horseman, made every effort to stop his team but was unable to do so; and that the horses were struck by the car and dragged a distance of 130 feet, throwing decedent out and causing his death.</p>

<p>Appeals, Nos. 272 and 273, Jan. T., 1916, by Philadelphia Trust Company, trustee, and No. 275, Jan. T., 1916, by Scranton Trust Company, trustee, from decrees of C. P. Northumberland Co., Nos. 394 and 383, in equity, on bills in equity for the foreclosure of corporate mortgages, in cases of The Philadelphia Trust, Safe Deposit & Insurance Company (now Philadelphia Trust Company), Trustee, v. The Northumberland County Traction Company, Sunbury and Susquehanna Railway Company, and H. E. Davis, ÍP. J. Byrod and Charles H. Grant, as receivers of Sunbury and Susquehanna Railway Company; and The Pennsylvania Steel Company v. Sunbury and Susquehanna Railway Company.</p> <p>Bills in equity for the foreclosure of corporate mortgages. Before Cummings, P. J.</p> <p>Prom the record it appeared that the Northumberland County Traction Company, herein called “Traction Company,’7 was^ formed in 1911 by the merger of two other companies, and owned and operated an electric railway from the Borough of Sunbury to the Borough of Northumberland, having a total .length of about six miles. On November 1, 1911, it executed and delivered a first mortgage or deed of trust on all its property and franchises, then owned or thereafter to be acquired, to the Philadelphia Trust Company, as trustee, to secure an issue of its bonds, of which $400,000 are outstanding. The covenants bound the successors of the traction company which agreed that it would suffer no lien to have priority over this first ulortgage, and waived all laws requiring foreclosure by an action or postponing the immediate sale of the mortgaged property under the provisions of the mortgage. It was provided that in case default should be made in payment of interest or principal of the bonds or in the performance of any other covenant by the traction company, the trustee, upon the written request of the holders of not less than one-half in amount of the outstanding bonds, should declare the principal of all the bonds to be due and payable and enforce the rights and liens of the bondholders by foreclosure or sale of the mortgaged property, with the right of the purchaser at any sale of the property in execution of the provisions of the mortgage to apply the matured bonds and coupons upon the purchase-price.</p> <p>The-Sunbury and Selinsgrove Electric Street Railway Company, herein called “Selinsgrove Company” was incorporated in 1904. and owned and operated an electric railway from the Borough of Selinsgrove, in Snyder County, to the Borough of Sunbury, in Northumberland County, of about seven miles in length. On August 1, 1907, it executed and delivered a mortgage or deed of trust on all its property and franchises to The Scranton Trust Company, as trustee, to secure an issue of bonds to the amount of $300,000 which are now outstanding. This mortgage is a first lien on all of the property and franchises of the mortgagor, authorizes the trustee, on request of the holders of the majority of the bonds then outstanding upon which default in payment of interest or principal has been made, to take possession and operate the road until the debt is paid, to have the profits sequestered by a receiver appointed by a court of equity, to make public sale of the property, or to bring on a judicial sale, and stipulates that the rights and remedies of the holders of the bonds provided in the mortgage shall be exclusive of all others.</p> <p>The Sunbury, Lewisburg and Milton Railway Company, herein called the “Lewisburg Company,” owned and operated an electric railway in Northumberland Borough and Point Township, Northumberland County, having a total length of about two miles. • On August 21, 1911, this company éxecuted and delivered a mortgage or deed of trust on all its property and franchises to secure a bond issue of $1,000,000, of which $150,000 have been issued and are now outstanding.</p> <p>The Chillisquaque Connecting Railway Company and' the Montandon and Milton Railroad Company were incorporated as street railwáy companies under the laws of the Commonwealth, but have not constructed or operated roads under their charters.</p> <p>The Sunbury and Susquehanna Railway Company, herein called the “Merged Company,” is a corporation existing under the laws of the Commonwealth, and was formed in pursuance of the Act of May 3,1909, P. L. 408, 5 Purd. 5703, by the consolidation and merger of all the above-named or constituted companies, and since the consolidation has owned 'and operated as a continuous and connected line the several lines of railway formerly owned and operated by those companies, having a total length of about sixteen miles. The merger agreement vested all the property and franchises of the five corporations in the new corporation, subject to' all the debts, duties and liabilities of each of the constituent companies, and provided that all property and franchises afterwards acquired along .each line should become a part of it and be primarily subject to the mortgage of the constituent company then operating that line, that all the rights of creditors and liens upon the property of either of the constituent corporations should be preserved unimpaired and those corporations should be deemed to continue in existence to preserve the same; and that all debts, liabilities and duties of either of the constituent companies should thenceforth attach to the merged corporation and be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it. The agreement also provided that a refunding mortgage should be created by the new corporation and should contain a clause that any default in respect to the payment of interest or any other provision contained in the refunding mortgage should be construed to be and should immediately operate as a default with respect to each of the three underlying mortgages of the constituent companies, so that thereupon immediately the respective trustees in the underlying mortgages, or the holders of the bonds of those mortgages should forthwith make use of any remedy given in either or any of those mortgages for the enforcement of the provisions thereof with relation to default, as therein set forth, with like effect to all intents and purposes as1 if there had been a separate default under each of the underlying mortgages, and no payment of interest under any of the underlying mortgages should prevent such default, if any default whatever should be made with respect to any of the provisions of the refund- • ing mortgage. The merged company created a bonded indebtedness of $200,000 which was secured by a mortgage on all of its property and franchises.</p> <p>At the date of the merger, the lines of the traction company, the Selinsgrove company, and the Lewisburg company were end to end but did not physically connect, and after the merger the consolidated company physically connected the tracks of the three constituent companies and operated them as one line.1</p> <p>The Pennsylvania Steel Company filed a creditor’s bill, on November 13,1913, against the merged company, alleging insolvency, and on December 15,1913, the court entered a decree adjudging the defendant to be insolvent and appointed three receivers who forthwith took possession of the street railway system of that company and have since operated it.</p> <p>Default was made under each of the underlying mortgages of the three constituent companies and also the top mortgage of the merged company, but no bill for foreclosure was filed by the trustee under the Selinsgrove and Lewisburg companies mortgages.</p> <p>The Philadelphia Trust Company, trustee under the traction company mortgage, presented its petition to the court below averring default on May 1, 1913, and thereafter, in payment of the interest due on the bonds issued by that company and secured by the mortgage; that on December 15,1913, the court appointed receivers for the merged company who took possession of all its property, including the property on which the traction company mortgage was a lien; and that petitioner had received the written request of more than one-half in amount of the holders of the outstanding bonds to declare the principal of all the bonds to be due and payable immediately and to proceed to enforce the rights and liens of the bondholders under the mortgage, and prayed for leave to file its bill for the foreclosure of the mortgage, naming as defendants in the bill the traction company and the receivers of the merged company. The prayer of the petition was granted on December 7,1914, and on the same day the bill was filed.</p> <p>On December 21, 1914, the receivers of * the merged company presented a petition to the court below and obtained a rule to show cause why the court should not decree a sale of the corporate rights, franchises and property of that company by the receivers, freed and discharged from the lien and operation of the several mortgages of the constituent and merged companies, judgments, vendors’ liens and paramount liens, specifically mentioned in the petition, and freed and discharged from the lien and operation of all other liens of any nature and character whatsoever. The petition alleged that a separate foreclosure and sale of the road covered by the traction company’s mortgage, now asked'for by the trustee under that mortgage, would work irreparable injury to the bondholders of the merged and other constituent companies, by causing the dismemberment of the system of railways operated as a unit by the receivers; that a separate foreclosure and sale of the traction company’s road would be to the manifest injustice of creditors of all classes and that, as no bill had been filed to foreclose the mortgages of the other two constituent companies, the receivers would be left in the embarrassing position of trying to operate as a unit two pieces of disjoined and disconnected railway. The Philadelphia Trust Company, trustee under the traction company mortgage, filed an answer averring that the merger of the constituent companies could not impair, injure or qffect the security for the bonds as established by the traction company mortgage, and denying the materiality of the reasons assigned in the petition for an order for a receiver’s sale of the property. The answer also avers that the court was without authority to grant the prayer of the petitioners for an order to sell. A committee of the bondholders of the traction company joined in the answer of the Philadelphia Trust Company. The Scranton Trust Company, trustee for the holders of the bonds secured by the mortgage of the Selinsgrove company, filed an answer in which it denied the material facts alleged in the receivers’ petition, and also the jurisdiction of the court to order a sale of the properties as a whole, as prayed for, in the-petition, divested of all liens, and particularly the lien of the mortgage of the Selinsgrove company. The answer also averred that the holders of the bonds would be deprived of the additional value of the property arising from the statutory right of the purchasers of the property to organize a corporation and to operate the property as a separate and independent street railway.</p> <p>On January 4,1915, the president and receivers of the merged company filed an answer to the bill of the Philadelphia Trust Company to foreclose the mortgage given by the traction company. The answer admits all the averments of the bill except that as to the request of more than one-half the bondholders, which was afterwards proved and found by the court, and avers that the receivers had applied to the court for leave to sell the property and franchises of the merged company, and it then sets forth the same reasons for objecting to the foreclosure of the traction company mortgage as are given in the receivers’ application to the court for leave to sell the property and franchises of the merged company.</p> <p>The cases were heard on the pleadings and testimony, and the court granted the prayer of the receivers’ petition for an order to sell, and entered a decree authorizing them to sell, as an entirety, the corporate rights, franchises and property of the merged corporation and of its constituent corporations at the date of the merger, divested of all liens by mortgage, judgment, decree or otherwise, upon the merged railway, whether before or subsequent to the merger and whether against the merged corporation or jointly or severally against its .constituent corporations. The decree required a cash deposit of $10,000 by each bidder, and a cash payment of $100,000 on acceptance of any bid, and permitted the _ use of bonds in payment of the amount of the bid above the deposit and the down-money, and then allowed a credit for the bonds in “such sums as would be payable on such bonds and coupons out of the purchase-price, if the whole amount thereof had been paid in cash.” From this decree the Philadelphia Trust Company, trustee, and a committee of bondholders of the traction company mortgage took "an appeal, at No. 273, January Term, 1916, as did also the Scranton Trust Company, trustee under the Selinsgrove company mortgage, at No. 275, January Term, 1916. The court also entered a decree on the bill filed by the Philadelphia Trust Company, trustee, for the foreclosure of the traction company mortgage, that the mortgage was a valid and subsisting mortgage and constituted a first lien, with the exception of certain claims alleged to be preferential and then undergoing adjudication by the court, on that company’s corporate rights, franchises and property covered thereby, and that there Avas default in- payment of interest due on the mortgage Avhereby the principal of the mortgage was now due, but denied a separate sale in foreclosure, by the trustee under the traction company mortgage, and directed that the corporate rights, franchises and property covered by that mortgage be sold pursuant to the general order of sale issued under the court’s decree to the receivers of the merged company. From this decree the Philadelphia Trust Company, trustee, appealed, at No. 272, January Term, 1916.</p> <p>The rights of the bondholders as creditors of the traction company were impaired by the refusal of the court to allow a foreclosure and sale of the property of the traction company: Galey v. Guffey, 248 Pa. 523.</p> <p>The receivers could not legally be authorized to sell the property of the traction company divested of the plaintiff’s first mortgage: Kuebler v. Haines, 229 Pa. 274; Lyons v. Benney, 230 Pa. 117; Lane v. Washington Hotel Co., 190 Pa. 230; Seventh National Bank of Philadelphia et al. v. Shenandoah Iron Co., 35 Fed. Repr. 436; Barclay v. Edlis Barber Supply Co., 39 Pa. Superior Ct. 482; Kneeland v. American Loan & Trust Co., 136 U. S. 89; Thomas v. Western Car Co., 149 U. S. 95; BibberWhite Co. v. White River Yalley Electric R. R. Co. et al., 115 Fed. Repr. 786; Maryland Steel Co. v. Gettysburg-Electric Ry. Co., 99 Fed. Repr. 150; Auten v. City Electric Street Ry. Co. et al., 104 Fed. Repr. 395; Chesapeake & Ohio Coal & Coke Co. v. Black, Sheridan & Wilson et al., 224 Fed. Repr. 924; Foster v. Barnes, 81 Pa. 377; In re Lebanon Brewing Co., 3 Pa. D. R. 260; Throckmorton’s Ex’rs v. Lancaster & Southern St. Ry. Co., 33 Lane. L. Rev. 233; s. c. 3 Penna. Corp. Rep. 606; s. c. 44 Pa. C. C. 569; Wabash, St. Louis & Pac. Ry. Co-, v. Central Trust Co. of N. Y. et al., 22 Fed. Repr. 138; Commonwealth v. Susquehanna & Del. River R. R. Co., 122 Pa. 306; Fidelity Title & Trust Co. v. Schenley Park r& Highlands Ry. Co., 189 Pa. 363.</p> <p>The Public Service Company Law does not require the consent of the Public Service Commission before the plaintiff’s mortgage can be foreclosed and a sale had, thereunder.</p> <p>The decree of the court deprives the bondholders ©f the Sunbury & Susquehanna Railway Company of rights guaranteed by the Constitution of the United States and by the Constitution of this Commonwealth: Galey v. Guffey, 248 Pa. 523.</p> <p>There is no impairment of the contract because the court directed a foreclosure of the mortgages: Fidelity Title & Trust Co. v. Schenley Párk & Highlands Ry. Co., 189 Pa. ^>63; Old Colony Trust v. Allentown & Bethlehem Rapid Transit Co., 192 Pa. 596; Com. v. Susquehanna & Del. River R. R. Co., 122 Pa. 306; Philadelphia v. Elec. Traction Co., 208 Pa. 157; Hammock v. Farmers’ Loan & Tr. Co., 105 U. S. 77; Vulcanite Paving Co. v. Philadelphia Rapid Transit Co., 220 Pa. 603.</p> <p>The sale of the merged road in its entirety is not an impairment, of the appellant’s contract obligation: Union Canal Co. v. Gilfillin, 93 Pa. 95; Dalmas v. Philipsburg & Susquehanna Valley R. R. Co., 254 Pa. 9; Shepherd v. Pepper, 133 U. S. 626; Warner v. Grayson, 200 U. S. 257; Red River Valley Natl. Bank v. Craig, 181 U. S. 548; Farmers’ Loan & Tr. Co. v. Cape Fear & Yadkin Valley R. R. Co., 82 Fed. Repr. 344; Low et al. v. Blackford et al., 87 Fed. Repr. 392; Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. 434; First Natl. Bank of Cleveland v. Shedd, 121 U. S. 74; Compton v. Jesup et al., 68 Fed. Repr. 263; Wheeling Bridge & Terminal Ry. Co. et al. v. Reymann Brewing Co., 90 Fed. Repr. 189; Dayton, Xenia & Belpre R. R. Co. et-al. v. Lewton, 20 Ohio 401; Guaranty Tr. Co. v. Metropolitan St. Ry. Co.,-168 Fed. Repr. 937; Gibert v. Washington City, Va. Midland & Great Southern R. R. Co., 74 Va. 586; Turtle Creek Boro. v. Penna. Water Co., 243 Pa. 401.</p>

<p>Appeals, No. 260 and 261, January T., 1916, by Thomas McCoy and Frank J. Donahue, from order of Q. S. Schuylkill Co., decreeing null and void an election for school directors in Lost Creek precinct, In re Petition of Citizens of the Township of West Mahanoy, County of Schuylkill, to contest the election of Thomas McCoy to the office of School Director in said Township; and In Be Petition of Citizens of the Township of West Mahanoy, County of Schuylkill, to contest the election of Frank J. Donahue to the office of School Director in said Township.</p> <p>Petition for an election contest. Before Brumm, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court decreed that the election in Lost Creek precinct was null and void; threw out the returns from such precinct, and found that John D. Edmunds and John Cosgrove were properly elected school directors in the West Mahanoy Township School District. Thomas McCoy and Frank J. Donahue appealed.</p> <p>were in dismissing various exceptions of fact and law and the order of the court.</p>

<p>Negligence—Master and servant—Tannery — Acid fumes—Improper ventilation—Health of workman—Contributory negligence ■—Known danger—Assuming risk—-Assurance of master—Case for jury—Act of May 2,1905, P. L. §52, See. 11.</p> <p>1. Where seemingly credible evidence points directly to establish the facts upon which defendant’s liability depends, a-verdict based thereon is not the result of guess work, although such evidence is strongly contradicted by that submitted for the defense.</p> <p>2. Where plaintiff’s cause is supported by positive and substantial evidence and also by expert opinion, it must be submitted to the jury, notwithstanding the strength of the opposing proofs, and if the verdict be against the weight of the evidence, the remedy is a new trial.</p> <p>3. It is the duty of a leather tanning company, under the Act of May 2, 1905, P. L. 352, Section 11, to know the character of the fumes and gases arising in its bleach rooms, and, if such fumes are poisonous, to provide for their elimination by exhaust fans -or other sufficient devices. The provisions of the Act of 1905 are mandatory and where no attempt was made to comply with them and there is no claim that they could not have been complied with, ’and it appears that the fumes were poisonous to the workman and he was injured thereby without negligence on his part, he is entitled to recover.'</p> <p>4. In an action by an employee against a leather tanning company to recover for injuries to plaintiff’s health alleged to have resulted from inhaling poisonous fumes against which he was not protected, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that plaintiff was required to work about the vats in a bleachery, that one of his duties was to pour sulphuric acid into a vat, that he was compelled to breathe the vapor arising from the vat, that the room was poorly ventilated, especially in winter time, that when plaintiff began such work he was robust and in good health, but after working in such capacity for two years was compelled to withdraw owing to the loss of health;</p> <p>' and the evidence was contradictory as to whether the fumes arising from the vats were poisonous and the cause of the injuries of which plaintiff complained.</p> <p>5. In such case the fact that plaintiff complained to defendant’3 superintendent that he thought the fumes were injuring his health, but continued to work thereafter, did not convict him of contributory negligence as a matter of law, where it appeared that plaintiff was assured by the superintendent that the fumes were not poisonous.</p>

<p>Appeal, No. 39, Jan. T., 1917, by defendant, from judgment of C. P. Luzerne Co., March T., 1914, No. 641, on verdict for plaintiff, in case of John Hack v. John F. Shovlin.</p> <p>Assumpsit on a building contract.</p> <p>Garman, J., filed the following opinion, sur defendant’s motion for a new trial:</p> <p>Plaintiff and defendant were parties to a building contract dated November 10, 1913, wherein the plaintiff agreed to do the work and furnish the materials for the sum of $6,907; and defendant agreed to pay said sum, the manner of payment set forth in the contract as follows: “On the first day of every month the architect shall make a monthly estimate of the value of the work done on the building, on which day the amount of said estimate; less 10% shall be paid contractor; when the final estimate is made and building accepted the 10% reductions theretofore made shall be added to and made part of the final payment. And it is hereby expressly covenanted, understood and agreed by the said party of the first part that 10 per cent, "of the amount of each payment is to be retained by the party of the second part until the said building is completed and finished, and finally accepted by the party of the second part.”</p> <p>On the 1st of December, 1913, the architect made an estimate addressed to Mr. Shovlin in the following form: “This is to certify that the first payment of $360 is due to John Hack, contractor on your building, Park Avenue, Wilkes-Barre, Pa., John J. Feeney, Architect, John Hack, Contractor.” This paper was accepted by both parties as an estimate and defendant paid to plaintiff the sum of $360.</p> <p>On the 1st of January, 1914, the architect presented a paper addressed to Mr. Shovlin reading as follows: “This is to certify that the second payment of one thousand dollars is due to Mr. John Hack, contractor on your building, Park Avenue, Wilkes-Barre, Pa., John J. Feeney, Architect. Amount of contract $6,907, previously 'paid $360, this certificate $1,000, balance $5,547.” To this paper plaintiff objected on the ground that it was not a proper estimate and demanded a re-estimate.</p> <p>On the 7th of January, 1914, the architect sent in another paper as follows: “Wilkes-Barre, January 7th, 1914, Mr. John Shovlin, Dear Sir:—I have re-estimated the amount of work and materials fixed in on your building, Park Avenue, as done by your contractor, John Hack, for the month of December, 1913, as follows: Entire excavation, 766 yards at .60, $459.60, 68 yards of concrete at $6.00, $408.00, brick wall in cellar at $15 per thousand, $82.00, 9790 feet hemlock at $45.00 per thousand, $440.55, 10 cellar-window frames at $1.50, $15.00, total $1,405.15. John J. Feeney, Architect.” This paper was delivered to Mr. Shovlin, who declined to pay Hack according to its findings but offered Hack a check for $1,000, as per certificate of January 1, 1914.</p> <p>Now, if the case rested right here who would doubt that Shovlin should have paid Hack $1,264.60, the amount of the estimate less 10%.</p> <p>But on the 5th of January, 1914, Hack sent to Shovlin a letter as follows:—“I have been advised by my attox’ney to notify you that John J. Feeney, Archt. for your building, Park Ave., City, is to re-estimate the amount of work and material furnished on said building to January 1st, 1914, in a fair and honest manner. I also demand a copy of his estimate to date. I will allow you for readjustment until January 6th, 1914, at 4: 30 p. m. If not settled satisfactory by said time and date I shall quit work on your building and hold you responsible for all delays.”</p> <p>As indicated in this letter, Hack quit work.on the 6th of January, 1914, at 4: 30 p. m.</p> <p>On the 8th of January, 1914, Shovlin and Feeney sent to Hack the following letter:—“You are hereby notified that because of your having quit working on the John F. Shovlin building on Park Avenue, City of Wilkes-Barre, Pa., which you contracted to build for him, and having neglected to supply a sufficiency of materials and workmen whereby, in our opinion, the completion of the said building at the time specified will be prevented, and having failed and refused to follow the drawings and specifications, it is our intention to enter and take possession of the premises and Bldg, in three (3) days after service of this notice on you and provide materials and workmen to complete and finish said Bldg, as provided in the specifications and contract. For any loss sustained by John F. Shovlin resulting from your refusal or failure to per- ■ form the contract you will be held responsible.”</p> <p>This letter was followed by one dated January 26, 1914, to Shovlin from Hack’s attorneys demanding the sum of $2,361, the amount claimed by Hack to be due to him for materials furnished and work and labor done to January 1, 1914.</p> <p>Now at this point a review of the circumstances will disclose these facts:</p> <p>1st—Hack demanded of Shovlin a new and honest estimate, threatened to quit work and did quit work on the 6th of January, 1916.</p> <p>2d—Shovlin on January 7, 1914, received an estimate showing the items of work and material furnished by Hack and the sum of $1,405.15 due him.</p> <p>3d—Shovlin and Feeney both knowing of the contents of the re-estimate on January 8,1914, demanded without tender of full payment that Hack proceed within 3 days or forfeit his contract.</p> <p>After the 8th of January, Hack did no more work and Shovlin made a contract with another person to complete the work, and in the trial claimed from Hack in the sum of $7,439 for failure to complete his contract and for expenses incurred in correcting Hack’s bad work.</p> <p>As to the estimate we instructed the jury that if the architect had stood by his estimate known in the case as of January 1st, both Hack and Shovlin would have been bound by it; but when the architect made a re-estimate showing the incorrectness of the first paper, Shovlin was bound by it and therefore would not be entitled to set oft against Hack any expense except such as was necessary to correct bad work done by Hack; that Hack might recover such sum as the jury should find to be the actual value of the materials furnished and work done up to January 7, 1914, less such amount as the jury would deduct for payments made to Hack and for bad work or defective work attributable to him.</p> <p>And on consideration of these instructions we are unable to see any error. As a fact there was no estimate worth considering until that of January 7th. The contract specified that Hack was entitled to a monthly estimate of the value of the work done on the building and to pay for the value less ten per cent. When, therefore, Shovlin learned on the 7th of January that there was due on the 1st of January a sum of excess of the first estimate, he was bound to tender Hack the sum due less ten per cent.</p> <p>But Shovlin claimed that as threatened by the letter of January 5th, Hack quit the work and abandoned his undertaking. This Hack denied and averred that he quit the work only pending the dispute about the estimate. As to these contentions we said to the jury: “If you find that Hack absolutely quit on the 5th of January before this estimate of the seventh came into the hands of Mr. Shovlin then I think he is not entitled to recover.” Also, “You will be permitted to take this letter of Mr. Hack, and your material question will be, was that letter an absolute declaration of forfeiture of the contract on the part of Mr. Hack? If so, this being an entire contract, I would instruct you that Mr. Hack could not recover. But if it was only a notice that he would cease work pending the determination of the estimate, then we would say to you that after Mr. Shovlin ! got the estimate on the 7th of January, it is our opinion that he would be liable for its amount and having himself forfeited the contract afterward by the letter of the 8th of January, he could not recover for anything that he afterward spent in the erection of the building, and could only recover in the way of set-off the amount that he may have had to spend for work that was not properly done while the contractor was in possession.”</p> <p>If our theory be correct that the estimate of January 7th was binding upon Shovlin and Hack, then it follows that Shovlin was bound to tender Hack payment as shown by the estimate less ten per cent.; if the jury found that Hack suspended work only during and pending the making of an “honest estimate” then he would be entitled to full pay for work done up to the time that Shovlin took possession of the premises. We believe this view of the cace the just one and that our charge to the jury properly left to them the determination of disputed facts.</p> <p>Defendant’s first exception is to our answer- to his third point, wThich point was as follows:</p> <p>“3. The architect did make an estimate of the value of the work done on the building during the month of December, 1913, by the plaintiff and the defendant tendered to him a check in payment of the amount of said estimate which was refused,” to which we answered:</p> <p>“I will not affirm that point, but will say to you that there is evidence to justify your, so finding. Even if there be no contradiction, the facts are for the jury.”</p> <p>Our answer simply left to the jury whether the certificate of January 1st was an estimate.</p> <p>The second exception is to our answer to his fourth point, which point is:</p> <p>“1. Even if said estimate were made in bad faith and for a dishonest purpose (and there is no evidence that it was) such action on the part of the architect could not affect the rights of the defendant under the contract unless he were a party to it;” and the answer thereto was:</p> <p>“That point is affirmed. We have already told you, however, that when the second estimate was tendered to Mr. Shovlin and he retained it without complying with it, if he had any liability it was then revived, and he would have been liable for the amount of the said estimate.”</p> <p>In this we see no error. In view of the affirmation of the point, it was proper to refer to previous instructions applicable to “action on the part of the architect” relating to his estimates. i</p> <p>We do not deem it necessary to discuss the other exceptions taken because we do not think they are well taken and therefore the rule for new trial is discharged.</p> <p>Verdict for plaintiff for $2,478.95, and judgment thereon. Defendant appealed.</p> <p>were instructions to the jury and in refusing to direct a verdict for defendant.</p>

<p> Negligence—Master and servant—Mines and mining—Descending car—Gollision with workman—Nonsuit. </p> <p>1. Negligence cannot be inferred against an employer from the mere happening of an accident causing injury to an employee.</p> <p>2. In an action by an employee against a mining company to recover for injuries sustained in consequence of being struck by a car which suddenly descended a slope while plaintiff’s back was turned toward it, a compulsory nonsuit was properly entered where there was no evidence as to the cause of the accident or to justify a finding that 'the starting of the car was due to any negligence of the defendant, /</p>

<p>Appeal, No. 104, Jan. T., ■ 1917, by plaintiff, from judgment of C. P. Luzerne Co., June .T., 1915, No. 351, on verdict for plaintiff, in case of C. M. Reilly v. City of Wilkes-Barre.</p> <p>Assumpsit on a contract.</p> <p>Fuller, P. J., filed the following opinion:</p> <p>The action was brought to recover a balance claimed on contract for building a sewer.</p> <p>. By that contract, dated October 25, Í912, plaintiff agreed to furnish all labor and materials to excavate and back-fill trenches and to lay sewer pipes therein, on certain streets in the City of Wilkes-Barre according to plans and specifications and plaintiff’s proposal on file on the city office, aid attached to the contract; and the defendant agreed to pay for .completing said work in accordance with plans and specifications $48,980.59 in the manner provided by the specifications. Thus the proposal and specifications became a part of the contract and must be considered in construing its terms.</p> <p>In the proposal the plaintiff offered “to excavate and back-fill sewer trenches and to furnish sand-and cement and lay pipe in trenches in accordance with plans and specifications of the same for the following prices, and in greater or smaller quantities, viz:......”</p> <p>■ Then follows some seventeen items specifying differ- . ent lengths and depths of trenches, cubic yards of different material such as hard-pan, rock, shale and slate, length and diameter of pipes, number of manholes, etc., with unit prices per lineal foot, cubic yard and manhole, all carried out, footed up and added together, amounting to the said sum of $48,980.59.</p> <p>This proposal was on a standard printed blank used by the city, and contained the following: “Bidders will fill in the cost per foot, or yard of each item as indicated on the above blank, carry out the total cost of such items, and add the bid showing total cost of work according to their proposal”; as was done in this case.</p> <p>It was also provided, “all work and materials to be paid for shall be measured by the engineer and his assistants according to the plans, specifications, and the lines given on the ground.”</p> <p>It was also provided that in rock Avork certain considerations should determine whether the estimate should be for rock, shale or slate; “these estimates and the decision and judgment upon which they are based to be final and conclusive.”</p> <p>It was also provided that at the end of each month during the progress of the work the engineer shall make an estimate of the total amount of work during that month and the valuation thereof at the prices stipulated and recorded in the contract, which estimate shall be a warrant for payment of ninety per cent. (90%), the other ten per cent. (10%) to remain unpaid until completion, and then to be payable within ninety days from completion and acceptance.</p> <p>The plaintiff received payments on monthly estimates of the engineer from time to time, twenty-three in all, forming a connected series, with balances carried forward from one to the other, based upon actual measurements and upon prices specified in the proposal, amounting altogether to $34,046.04.</p> <p>Ten per cent, was retained out of each monthly estimate as agreed, and upon completion and acceptance of the work by the city, December 9,1914, the final estimate was $4,971.59, which the city offered and still offers to pay.</p> <p>There were some minor questions in the case which are not in controversy at this time and need not be mentioned or considered.</p> <p>The plaintiff in substance claimed that on his construction of the contract he was entitled to the flat sum of $48,980.59, regardless of measurements, with credit of $34,046.04, leaving a balance of $14,934.55, subject to some further credit connected with the minor questions just mentioned.</p> <p>The defendant, on the other hand, claimed that on its construction of the contract the limitation of liability was actual measurements and specified prices, that is $39,017.63, less payments $34,046.04, leaving $4,971.59, as set forth in the final estimate above mentioned, with some addition thereto connected with the minor questions aforesaid.</p> <p>Thus the controversy involves a construction of the contract as between $48,980.59, claimed by the plaintiff, and the unit basis claimed by the defendafit.</p> <p>In our charge to the jury we adopted and we still hold to the latter.</p> <p>The defendant offered evidence of a contemporaneous similar contract in which the plaintiff himself adopted and acted upon the defendant’s construction, but we rejected the evidence on the assumption, which we still make, that the contract taken as a whole was free from ambiguity.</p> <p>Plainly, we think, the contract was to do the work for $48,980.59 if the measurements amounted to so much at the specified unit prices. '</p> <p>The measurements stated in the proposal were estimated as closely as they could be in advance. If they fell short, the cost would be correspondingly less; if they went above, the cost would be correspondingly more.</p> <p>No other construction would be fair to either party.</p> <p>No other construction accords with the language of the different provisions heretofore quoted, accompanied by the specification of prices.</p> <p>Why specify prices or measurements “in greater or smaller quantities” if a flat payment of the total amount is contemplated?</p> <p>Without further discussion, which the case no doubt deserves, but which we have not the time to bestow, we concur with the trial judge that the contract clearly contemplátes payment not of a flat $48,980.59, but for aggregate actual measurements on prices specified.</p> <p>Verdict for plaintiff for $6,411.41 and judgment thereon. Plaintiff appealed.</p> <p>were instructions to the jury.</p>

<p>Negligence — Municipalities — Defective sidewdlhs — Judgment against city—Action over against property owner—Defenses—Notice of suit against city—Evidence—Record of former trial—Admissibility.</p> <p>Where in an action brought by a municipality to recover from a property owner the amount of a judgment which it was compelled to pay in an action brought for injuries resulting from the dangerous condition of defendant’s sidewalk, the evidence was conflicting as to whether defendant had notice of the action brought against the municipality, the record of the action brought against the municipality showing.that defendant was actually present and testified at such trial was properly admitted in evidence.</p>

<p> Judgments—Rule to open—Refusal. </p> <p>An application to open a judgment entered upon a judgment noté was properly refused where the note upon which the judgment was entered had been given in renewal of another note “upon which petitioners alleged that they were not liable, and it appeared that when the note in suit was given petitioners had full knowledge of all the facts connected with the execution of the first note.</p>

<p>Appeal, No. 371, Jan. T., 1916, by plaintiffs, from order of C. P. Huntingdon Co., Dec. T., 1915, No. 15, refusing to take off nonsuit in case of J. <Gr. Bookwalter and Ida Bookwalter, Ms wife, v. The Borough of Mount Union.</p> <p>Trespass to recover damages for personal injuries. Before Bailey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.</p> <p>was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 111, Jan. T., 1917, by defendant, from judgment and sentence of O. & T. Cumberland Co., Nov. Sessions, 1916, No. 30, on verdict of guilty of murder of the first degree, in case of Commonwealth of Pennsylvania v. Archie Miller.</p> <p>Indictment for murder.</p> <p>In overruling the defendant’s motion for a new trial, Sadler, P. J., filed the following opinion:</p> <p>Archie Miller was indicted for the murder of one Beisser, a railroad officer. He was defended by two of the ablest members of the local bar, assigned by the court under the provisions of the Act of March 22, 1907, P. L. 31, and in addition by counsel from another state selected by his family. The case was carefully presented. The jury rendered a verdict of guilty of murder of the first degree, and in this the court concurs.</p> <p>Reasons for a new trial and in arrest of judgment have been presented and argued, and are now before us for consideration.</p> <p>The first three alleged the verdict to be against the law, the evidence, the weight of the evidence, and the charge of the court; and can be considered together. None can be sustained.</p> <p>The evidence showed that the defendant came from the south and obtained work in Jersey City. While there he determined to return home, and joined with him, as a companion, one Jasper Fletcher. Before starting he procured for the latter a 15 Colt revolver in which lead bullets were used. For himself he purchased a new Colt automatic revolver, and steel jacketed bullets. At that time he declared his purpose to see that no “bull” would get him on his road home. They left Jersey City by freight, finally reaching Highspire. From that point they went by foot to Harrisburg, and thence across the bridge to the Cumberland County side and to the tracks of the Northern Central Railroad. Proceeding to the north, a tramp was met, who told them of being driven off the track, and that if they went on they would be arrested. The defendant used a coarse expression in regard to the “bulls,” but proceeded. At that time the officers were not in sight. Miller then put back his cap, removed his revolver from his right pocket—he was left handed—took it into his left hand, and there held it under the apron of the overalls he was wearing. Thus prepared, he continued on his way until in sight of the officers. Beisser came from the third to the second track in front of Miller, and when from fifteen to twenty feet away called “where are you going” ? In answer, Miller pulled the prepared revolver, and shot, saying “that is where I am going.” When the officer was falling he shot him a second time, and then shot the second officer who was on the track above. From the evidence, the jury was clearly justified in finding, as it did, that no other words had passed, and that no attempt had been made by Beisser to either arrest or assault the defendant. After falling, Beisser turned on his side, pulled out his revolver, and shot after the fleeing defendant, until he fell back dead. Miller was captured about one-half mile from the scene of the occurrence. In the meantime he had disposed in some way of his revolver. His companion, Fletcher, who had run at the first shot, was likewise found. He had thrown his revolver into the river. It was found with no bullets exploded. Those in his gun were lead, while Miller used steel jacketed ones, the same as found in the body of Beisser and the leg of Chubb. There was practically no contradiction of any of the facts above narrated. Miller himself did not take, the stand.</p> <p>The defense was insanity. The evidence to support even a suspicion of the same was far from convincing. The mother testified to various acts of badness during the youth of the defendant, and gave it as her opinion that he was insane. And a Doctor Jenkins, keeper of a reformatory in which Miller was confined, from the age of twelve to fourteen, gave a like opinion. Doctor Johnston, a colored physician of Charleston, South Carolina, and the family doctor, gave it as his opinion that the defendant was suffering from dementia prsecox, and that he could not distinguish between right and wrong when “he had an expansive moment.” He had not seen the defendant for three years before the trial, nor had the mother seen him for months, or Dr. Jenkins for years. The mental condition was described as hereditary, and' evidence was offered to show that the grandfather became insane at 66, and .that a brother was confined in an asylum. The mother and the doctor stated that as a boy Miller was afraid of things without cause. From this the jury was asked to find that he was insane when he shot Beisser, and that he was suffering from some indefinite delusion when he so acted.</p> <p>Every act and circumstance proven in the case showing the conduct of Miller immediately prior to and at the time of the murder negatived this contention. Two experts for the Commonwealth testified that, admitting as true every fact testified to in defense, there was no indication of insanity in their opinion.</p> <p>The expert for the defendant declared that he, Miller, could distinguish between right and wrong, except during an “expansive moment,” but that such a mental condition was existing' when the killing occurred was absolutely without support in the evidence. Though •this was the view of the court when the case was tried,, and still is, yet every possible instruction which could be of benefit to the defendant was given. In answer to the points on delusion, the jury was permitted to find such, from the evidence, if they could, though the court would have been fully justified under the, authorities in withdrawing. the matter entirely from its consideration: Commonwealth v. Henderson, 242 Pa. 372.</p> <p>A careful review of all the evidence leads to the conclusion that the jury was fully justified in finding that the killing was wilful, deliberate and premeditated, and was done by defendant while fully conscious of his act, with power to distinguish between right and wrong, and not under the control of any irresistible impulse or delusion.</p> <p>-Complaint is made of the answers to points 3, 11, 12 and 16 presented by the defendant. These were all affirmed as abstract propositions, and the jury told to apply the legal principle therein stated, if the facts upon which the same were predicated were found to be true. All four were based on the assumption that the evidence justified a finding that the defendant was acting under some delusion that he was in fear of death or great bodily harm. There was nothing in the evidence to justify such a conclusion, though it was left to the jury. The court would have been fully justified in refusing the points: Commonwealth v. Henderson, 242 Pa. 372; Commonwealth v. Calhoun, 238 Pa. 474. Any assumption of delusion would necessarily have been drawn from the proof that Miller as a child was needlessly afraid of things. The testimony as to this covered a period, years before the killing. Not a word to show impaired mental condition was offered for a period more than three years before, while the testimony of the acts and conduct of Miller immediately before and at the time of the killing showed him to be fully conscious of his actions and surroundings. In the answers to the points complained of the defendant received more favorable treatment than he had the right to demand.</p> <p>The sixth point was affirmed as stated. So that the jury might not get the impression from so doing, that the fact that the weapon was deadly could not be considered by them, we stated that from its use the intention may be inferred. This, in connection with the remainder of the point affirmed, was an introduction [instruction] that it should be considered with all the circumstances of the case in determining the intent. We do not think the jury could have misunderstood this. Later in the charge the weight to be given to the fact that the weapon was deadly was carefully defined. “When death ensues from the use of a deadly weapon, the jury must scan closely the conduct of both parties, taking into consideration the character of the weapon, the manner of its use, and the time of its use, the place of its use, and the circumstances attending it, and by a careful survey of the evidence the jury must endeavor to arrive at the true cause which prompted the fatal shot or shots.” And further, in the next paragraph we said: “Again, gentlemen of the jury, the nature of the weapon and the place and character of the wounds are important and should be considered by you. Was the weapon a deadly weapon? The deadliness of the weapon, gentlemen, tends to indi-' cate the intention with which it is used. The place or places where the wound or wounds are inflicted tend also to throw light on the intention with which the shots were fired.”</p> <p>As we understand the authorities, and as we instructed, the inference of the intent to kill may be drawn, not solely from the fact that the weapon was deadly, and used upon a vital part, but the fact that it was such and was so used, is to be considered with all the circumstances in reaching a determination as to the intent, and this is what the jury was told.</p> <p>The eighteenth point was affirmed as stated. The wording of the same was to the mind of the court confusing. So that the jury might not misunderstand, the court repeated in different language the two propositions included, and we think correctly. A mere doubt as to insanity does not justify an acquittal on that ground: Commonwealth v. Sushinskie, 242 Pa. 406; Commonwealth v. Henderson, 242 Pa. 372; Commonwealth v. Earner, 199 Pa. 335.</p> <p>The answer to the seventh point was as favorable to the defendant as could be demanded. We could not affirm without qualification the statement that a reasonable doubt as to motive prevented a conviction of a higher grade of homicide than that of second degree. Such is not the law: Lanahan v. Commonwealth, 84 Pa. 80; Commonwealth v. Danz, 211 Pa. 507.</p> <p>This disposes of such objections to the charge and points as have been specified. An additional error was suggested on the argument in that the jury was prejudiced unduly by the charge of the court in saying that it was not to be “deterred from a true finding by any thought of possible consequences of the verdict.” The same objection has been passed upon and held to be without merit by the Supreme Court: Commonwealth v. Webb, 252 Pa. 187; Coyle v. Commonwealth, 100 Pa. 573.</p> <p>We are unable to find that error was committed in passing upon the challenges for cause interposed when jurors were examined on their vo:ir dire. Nor do we see anything prejudicial to the defendant in the rulings upon the evidence. But one point therein is worthy of mention. The defendant used a 45-calibre automatic Colt revolver, but threw the same away in some concealed place after the killing. A duplicate was produced, which was identified by Fletcher as in all respects the same as carried by Miller. This fac-simile was offered in evidence so that the jury might consider the character of weapon used, which they had the right to do in connection with the other evidence in the case, in passing upon the question of intent. The duplicate having been proven to be identical, the admission was proper. “In any case where the nature and properties of an article' require consideration by the jury, it is proper to submit a duplicate or fac-simile conveying a correct impression”: 17 Cyc. 293; Commonwealth v. Fry, 198 Pa. 379.</p> <p>Since the argument of this case, and the preparation of this opinion, additional reasons have been filed by counsel for the defendant. An examination of the same will show the majority to be unsubstantial and trivial. The instructions as to self-defense are the same as those approved by the Supreme Court in Commonwealth v. DeFelippis, 245 Pa. 612, and those as to insanity were approved in Commonwealth v. Calhoun, 238 Pa. 474. It-is needless to cite authorities to show the rule in Pennsylvania to be that the prisoner must satisfy the jury by fairly preponderating evidence of his insanity, to entitle him to an acquittal on this ground. The last reported case upon the subject uses the same words that are here complained of: Commonwealth v. Sushinskie, 242 Pa. 406. •</p> <p>Impressed -with the importance of the decision to the defendant, we have examined the evidence and charge with care, both as to matters the subject of exception, and those not specifically complained of, and are convinced that no prejudicial error was committed. The conclusion of the presence of an intent to kill from all the circumstances was justified. The deliberation and premeditation appeared in the preparation of the gun for use before the deceased was in sight, but after Miller was notified that he was farther up the track. The shooting was without provocation, and the jury properly took into consideration that after the first shot had taken effect, and the deceased was falling, he shot again: Commonwealth v. Digeso, 254 Pa. 296; Commonwealth v. West, 204 Pa. 68. The defense of insanity was disregarded by the jury, and it was a question for it to determine. That the verdict might have been a different one is no reason for judicial interference, even if the court was so inclined: Commonwealth v. Danz, 211 Pa. 507; Commonwealth v. Deitrick, 221 Pa. 7.</p> <p>The law was fully explained, and an opportunity given to the defendant to secure further instructions, if desired: Commonwealth v. Washington, 202 Pa. 148. There was evidence which justified the verdict of murder-in the first degree, and no substantial reason has been shown why a new trial should be granted, and the motion, therefore, is overruled. No error apparent upon the face of the record has been averred, or appears, and the same disposition of the motion in arrest of judgment is, therefore, made.</p> <p>Verdict of guilty of murder of the first degree, upon which sentence of death was passed. Defendant appealed.</p> <p>were in rulings of the court upon evidence, answers to defendants’, points for charge, and the charge of the court.</p>

<p>Appeal, No. 126, Jan. T., 1917, by William E. Graham, from decree of G. P. Erie Co., Sept. T., 1916, No. 1, on bill in equity in case of Hattie Harroun, who sues for herself, Rhea McEldowney and Carl Campbell v. William E. Graham, Joseph Otto, Helen Knapp, Josephine Otto and George Otto.</p> <p>Bill in equity to have two deeds declared null and void and for a reconveyance. Before Rossiter, P. J., and Whittelsey, J.</p> <p>The facts, as found from the evidence by the court below, are as follows :</p> <p>lv Warren Graham died in the City of Erie on the 12th day of August, 1914, leaving surviving him as his only heirs at law, William E. Graham, a son; Rhea Mc-Eldowney and Carl Campbell, children of Catherine Campbell, daughter of the said Warren Graham, who died' prior to the death of the said Warren Graham; Hattie Harroun, Helen Knapp, Joseph Otto and George Otto, children of Elizabeth Otto, daughter of the said Warren Grah'am, who died prior to the death of the said Warren . Graham.</p> <p>2., That on the 6th day of August, 1914, Warren Graham signed and acknowledged a deed, conveying to William E. Graham the land in Waterford Township, described in the third paragraph of plaintiffs’ bill, the consideration named therein being one dollar and love and affection, and on the same date signed and acknowledged another deed to William E. Graham and Joseph Otto for the lot in the City of Erie, also described in the third paragraph of plaintiffs’ bill, the consideration named in said deed being one dollar and other valuable considerations. So far as it appears no consideration was paid for the execution of either of said deeds.</p> <p>Both of these deeds were prepared by Louis B. Jones, Esq., attorney for the said Warren Graham, and were acknowledged by the said Warren Graham before the said Louis B. Jones, who was a notary public in the presence of Mr. E. J. Grace, who had been called in to witness the signature of Warren Graham thereto, the said Louis B. Jones and E. J. Grace being the subscribing witnesses to the said deeds.</p> <p>3. That at the time the deeds were executed, Warren Graham, the grantor therein, was upwards of eighty years of age, seriously sick, confined to his bed, and scarcely able to talk, and from that time gradually grew worse until his death on the 12th day of August, 1914, six days afterwards. That from the time the deeds were executed until he died, he was not out of the room where the deeds were executed.</p> <p>4. That at the time the deeds were executed the said Warren Graham was of sound and disposing mind, memory and understanding.</p> <p>5. That neither the said William E. Graham, nor Joseph Otto, the grantees were present at the time of the execution of the said deeds and knew nothing of the transaction until after the death of the said Warren Graham.</p> <p>6. That there was no actual delivery of the deeds in question by the grantor to the grantees named therein in the lifetime of the grantor, but they were retained in the possession and under the control of the grantor.</p> <p>7. That on August 18, 1914, letters of administration on the estate of the said Warren Graham were duly issued to the said William E. Graham, and on the same date the deeds were left for record in the recorder’s office.</p> <p>8. Prom the Aveight of the evidence it appears that after the said deeds had been signed and acknowledged,, they were, by direction of the said Warren Graham, the grantor, placed in a tin box, in which he kept his papers, Avhich was at the time on a dresser in his bedroom and the box was locked and the key given to his housekeeper Mrs. Robbins. That the box remained in the bedroom in the possession of the said Warren Graham until after his death, Avhen it was carried to the home of Mrs. Minnie Grace, and kept until the day of the funeral when the box was .opened by William E. Graham, in the presence of Carl Campbell, and the two1 deeds in question were then and there found in the box and the box was locked and left in the possession of Mrs. Grace.</p> <p>The court accordingly found the following conclusions of law:</p> <p>1. That the deed of Warren Graham to William E. Graham, dated August 6, 1914, recorded in Deed Book No. 208, page 248; and the deed from Warren Graham to William E. Graham and Joseph Otto, dated August 6,1914, and recorded, in Deed Book No. 208, page 249, in the recorder’s office of Erie County, Pennsylvania, are null and void for Avant of delivery.</p> <p>2. That the plaintiffs are entitled to a decree setting aside the said deeds so made by Warren Graham and ordering the said William E. Graham to reconvey the land described in the deed recorded in Deed Book No. 208, page 248, to the heirs at laAv of Warren Graham deceased; and ordering the said William E. Graham and Joseph Otto, to reconvey the property described in the deed recorded in Deed Book No. 208, page 249, to the heirs at law of the said Warren Graham, deceased, and that the defendant, William E. Graham,, be ordered to pay the costs.</p> <p>A decree was filed in accordance with the findings, exceptions thereto dismissed and a final decree entered. The defendant, William E. Graham, appealed.</p> <p>were in dismissing exceptions and the decree of the court.</p>

<p>Appeal, No. 134, Jan. T., 1917, by defendants, from decree of C. P. Erie Co., Feb. T., 1913, No. 2, in equity, declaring defendants trustees and directing an accounting in the case of Erie County Pomona Grange No. 4; Crawford County Pomona Grange No. 26; Harborcreek Grange, No. 385; Union Grange, No. 764; and Such other Granges or Grange Organizations of Crawford County, Pennsylvania, or Erie County, Pennsylvania, as have Similar Rights and May Desire to Join Herein v. A. L. Wales, A. H. Olmstead and G. Eugene Heath, Liquidating Trustees of the Keystone Co-operative Association, Limited.</p> <p>Bill in equity to have defendants declared trustees and for an accounting. Before Rossiter, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court entered a decree declaring the defendants trustees and directing that they be required to account for the fund in question. Defendants appealed.</p> <p>among others, was the decree of the court.</p>

<p> Actions—Bes adjudicata—lUjectment—P'rior suit in equity. </p> <p>1. Where a decree has been entered in a proceeding in equity and is unappealed from, and thereafter an action of ejectment is brought relating to the same subject-matter and involving the same cause of action, the issue is res adjudicata and the decree in the equity suit is conclusive on the parties.</p> <p>2. Where in an action of ejectment for an interest claimed by plaintiffs in certain oil grounds it appeared that defendant was in possession of the rights claimed by plaintiffs under an agreement between defendant and plaintiffs’ predecessor in title, and that in a prior suit in equity between defendant and plaintiffs’ predecessor in title all the questions sought to be raised in the ejectment proceeding had been determined in favor of defendant, the court properly directed a verdict for defendant.</p>

<p>Appeal, No. 112, Jan. T., 1917, by Grand Fraternity, from order of Q. S. Philadelphia Co., (Road Case, Jan. T., 1917, No. 3), vacating appointment of viewers. and quashing petition in the matter of opening of Philadelphia Parkway from City Hall to Fair-mount Park.</p> <p>The facts appear in the following opinion by Davis, J., on motion to quash the petition: •</p> <p>This is a motion on behalf of the City of- Philadelphia to quash the petition presented by The Grand Fraternity for the appointment of viewers to assess damages for the taking of property on the unopened portions of the Parkway from City Hall to Fairmount Park.</p> <p>On the 29th day of June, 1916, the City of Philadelphia presented a petition for the appointment of viewers to assess damages by reason of the opening of the unopened portions of the Parkway. On July 24, 1916, select and common councils passed an ordinance authorizing the opening.of the unopened portions of the Parkway. On the 26th day of January, 1917, upon the petition of The Grand Fraternity, the owner of property on the south side of Arch street, 173 feet 3 inches west of Board street, viewers were appointed to assess damages under the provisions of this ordinance. The City of Philadelphia moves to quash this last petition, contending that The Grand Fraternity should present its claim before the viewers, appointed on June 29, 1916. By Act of April 21, 1855 (P; L. 266), councils by ordinance are authorized to order any street on the city plan to be opened, whereupon the owners whose ground has been taken may petition tbe Court of Quarter Sessions for viewers to assess damages. The Act of May 8, 1876 (P. L. 138), gives authority to the city to present a petition for the appointment of viewers to assess damages whenever the proper authorities have directed “in the manner provided for by law” the opening or widening of any street upon the city plan. The Grand Fraternity contends that the petition filed by the city on June 29, 1916, was prior to the ordinance of July 24, 1916, and before notice of an intention to take the property had been served as required by the Act of Assembly of April 21, 1855.</p> <p>In the case of Philadelphia Parkway, 250 Pa. 257, the Supreme Court held that by numerous ordinances to open portions of the parkway as plotted, and by the condemnation and purchase under which the city had acquired title to the various properties within the limits .of the parkway, the city became committed to the improvement. Commenting upon ‘the acts of the city, the court said: “The facts show that appellant has suffered grievous injury and should be compensated. If so why not now? The only answer is that the city has not formally ordered the opening and, therefore, there has been no taking within the meaning of the law. Our reply has already been indicated. What the city has done is equivalent to notice that the parkway will be opened and that the lands required for this purpose will be taken under the power of eminent domain unless otherwise acquired. Indeed, as we view it, the city has com: mitted itself to the opening by a series of acts more expressive of fixed purpose than could be indicated by a resolution to open without anything more.” It is contended on behalf of the Grand Fraternity that there is no power to appoint a jury upon the petition of the City of Philadelphia, unless the opening has been made in the manner provided by law. This same contention was made on behalf of the city in the case of the Philadelphia Parkway (supra). Upon that point the Supreme Court held: “The city has committed itself to this improvement by its acts just as much as if councils had declared their intention of passing an ordinance to open. We consider what has been done as the equivalent of notice to the property owners that their lands would be appropriated for parkway purposes and that their possession was about to be disturbed.” It is also contended that the petitioner in the case of the Philadelphia Parkway (supra) set up facts which satisfied the court that the injury it had sustained amounted to a taking. No such allegation was made in this case on behalf of the Grand Fraternity, although its property is within the limits of the parkway. It is a fact known to' this court that since the decision of the Supreme Court a number of petitions have been presented by owners of individual properties and viewers have been appointed to assess damages. Counsel for the Grand Fraternity contends that until the property owner elects to assert that he has been damaged there can be no viewers appointed to assess damages; that, the City of Philadelphia having passed an ordinance in July, 1916, to take the property, the time had then arrived when, willing or unwilling, the owner of this real estate must surrender it, and, therefore, it was entitled to have a jury appointed, and it was not obliged to present its claims before the viewers appointed upon the petition of the city in June, 1916. If this ar-. gument is sound, had there been no ordinance passed in July, 1916, the Grand Fraternity would have been in a position to hold its property and present no claim for damages, if it so elected. Property OAvners on all sides might have presented claims before viewers appointed under petitions presented by them and the city might have taken possession of the properties after damages were assessed and paid, and might have opened the avenue on all sides of this particular piece of real estate and would have been powerless to remove it until the adoption of an ordinance to open. Under the decision of the Supreme Court in the parkway case this would have been an absurdity. As we have said, in that case the court held that the municipality had committed itself to the opening and had done those things which amount to the same as a formal opening by ordinance. It was not an opening as to one property to the exclusion of another.</p> <p>We are of opinion, therefore, that the municipality in June, 1916, had as much right to present its petition for' the assessment of damages as any property owner, and for the purpose of avoiding a multiplicity of individual proceedings, its petition to assess damages in all cases remaining unsettled was lawful. It follows that the appointment of viewers under the petition of the Grand Fraternity was improvidently made and should be quashed. It is so ordered.</p> <p>The court accordingly entered a decree quashing the petition. The Grand Fraternity appealed.</p> <p>was the action of the court.</p>

<p>Negligence—Railroads—Grade crossings—Vehicle driver—Death —Presumption—Stop, look and listen—Contributory negligence— Nonsuit.</p> <p>1. When one goes in front of a moving train of cars which he has had ample opportunity to see and avoid, he is guilty of contributory negligence as a matter of law.</p> <p>2. The presumption that one who is run down and killed by a passing train on a railroad track did all that prudence for his safety would suggest before entering upon the track, and that he stopped, looked and listened, like every other presumption, gives way to admitted facts with which it is irreconcilable.</p> <p>3. It is the duty of a person about to cross railroad tracks to be observant so long as danger threatens; if between where the party stops and the tracks of the railroad the situation affords opportunity to discover an approaching train and injury results because of disregard of such opportunity, the original act of stopping cannot operate to relieve the injured of the consequences of contributory negligence.</p> <p>4. In an action against a railroad company to recover damages for the death of plaintiff’s husband who was killed while driving a buggy over a grade crossing, deceased was guilty of contributory negligence and a compulsory nonsuit was properly entered where it appeared that he stopped, looked and listened at a point ninety feet distant from the nearest rail at a point where he had a view along the track upon which he was struck for 550 feet, whereas had he stopped at a point seventy-five feet beyond and twenty-five feet from the nearest track he would have had a clear view of the track for over 1,500 feet, and had he stopped before crossing the first track he could have seen the approaching train for a distance of three quarters of a mile.</p>

<p>Appeals, Nos. 86 and 87, Jan. T., 1916, by defendant, from judgment of C. P. Northampton Co., Sept. T., 1914, Nos. 7 and 18, on verdict for plaintiff, in case of Scandinavia Belting Company v. Macan Jr. Company.</p> <p>Assumpsit for goods sold and delivered and on promissory notes. Before Stewart, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff at No. 7, Sept. T., 1914, for $1,-706.17 and at No. 18, Sept. T., 1914, for |5,003.53 and judgment thereon. Defendant appealed.</p> <p>were instructions to the jury.</p>

<p> Municipalities—Townships—Street railway companies—Relocation of line—Laches—Estoppel—Injunction—Preliminary—Final decree—Practice—Equity. </p> <p>1. One who has assumed a position in a legal proceeding which has been acted upon by the opposing party may not thereafter in another proceeding assume a different position to the prejudice of such party.</p> <p>2. Where a street railway company took steps to reconstruct its right of way in a township over a route not designated by its charter, and obtained from the Public Service Commission a certificate of public convenience permitting the‘improvement after a hearing at which the township appeared and approved the general scheme of the improvement, but objected to certain details, and no appeal was taken from the order of the commission, and the railway company thereafter expended over $40,000, in commencing the improvement, the township was estopped from subsequently enjoining the consummation of the improvement, on the ground that it had not given its consent thereto.</p> <p>3. Where the court below, sitting as a chancellor, treats the case ’ on a bill in equity for an injunction as on final hearing, good practice requires counsel to file with the chancellor a stipulation to that effect so that a decree nisi may be entered and the case disposed of by the court in banc.</p>

<p>Appeal, No. 381, Jan. T., 1916, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1914, No. 1777, on verdict for plaintiff, in case of The Fox Chase Bank v. Wayne Junction Trust Company.</p> <p>Assumpsit on a policy of title insurance. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $11,430.92 and judgment thereon. Defendant appealed.</p> <p>were rulings on evidence and instructions to the jury.</p> <p>Defendant cannot be liable for more than the market value of plaintiff’s $10,000 mortgage, with the houses finished free of liens: German-American Title & Trust Company v. Citizens Trust & Surety Company, 190 Pa. 247; Wheeler v. Equitable Trust Co., 206 Pa. 428; Faulkner v. McHenry, 235 Pa-298 ; Stephen v. Penna. Casualty Co., 3 Am. & Eng. Ann. Cas. 478; Weightman v. Union Trust Co., 208 Pa. 449; Wheeler v. Equitable Trust Co., 221 Pa. 276; Whiteman v. Merion Title & Trust Co., 25 Pa. Superior Ct. 320;. Central Trust & Sav. Co. v. Henry Kraan Furniture Co., 57 Pa. Superior Ct. 221.</p> <p>The court erred in excluding evidence as to the market value of the mortgage held by the plaintiff bank, with houses finished free of liens: Moving Picture Co. of America v. Scottish Union & National Ins. Co. of Edinburgh, 244 Pa. 358.</p>

<p>Statute of limitations—Acknowledgment of debt — Insufficient evidence—Statement of claim—Evidence—Self-serving declaration —Book of'original entries. • . ■</p> <p>1. To toll the statute of limitations there must be a clear and unequivocal acknowledgment of the debt and a specification of the amount or a reference to something by which the amount can be definitely ascertained, coupled with an express or implied promise to pay.</p> <p>2. In an action against the administrator of a decedent’s estate for an indebtedness of over $4,000 incurred more than six years before suit, plaintiff contended that the statute of limitations had been tolled by a promise to pay within six years. The evidence relied upon was that a' witness had called upon decedent at his office and stated that plaintiff needed his money, that the witness had a statement of decedent’s indebtedness in his pocket; that decedent took a statement out of his drawer and said that the claim was correct and he would pay a part of the debt on Saturday. The witness testified that he could not tell the amount due by that statement without looking at the books, “it was thirty-nine hundred and something.” The witness did not present the statement he had in his pocket or see the writing on the paper which decedent took from his drawer. Held, the evidence was not sufficient to identify the debt, fix the amount, or toll the statute of limitations and a verdict was properly directed for the defendant.</p> <p>3. In such case there is no merit in the contention that the offer in evidence of the statement of claim containing a credit for an amount alleged to have been paid on account within six years of the action was sufficient to take the case to the jury, such allegation in the statement being a self-serving declaration. The book of-original entries showing the credit should have been offered.</p> <p>Mr. Chief Justice Brown dissents.</p>

<p>. Negligence—Street railways—Signal— Vehicle on trade—Ladder extending over bade of wagon—Bear end collision—Speed—Evidence—Undisputed evidence—Inferences—Case for jury.</p> <p>1. Where defendant submits no evidence, the truth of that offered for plaintiff and also any inference that might be drawn therefrom must be assumed.</p> <p>2. On a motion for a nonsuit where an inference of defendant’s negligence can be reasonably drawn from the evidence the case is for the jury.</p> <p>3. Where the driver of a vehicle sees a street car approaching when 300 feet distant, the question whether the motorman gave a signal of its approach is unimportant.</p> <p>4. The question whether the speed of a trolley car is improper is for the jury where there is evidence that for a distance of 100 feet before the car struck a horse and wagon it was traveling seven times as fast as the horse and after the collisipn it pushed the horse and wagon along for about 150 feet.</p> <p>5. When street railway tracks are laid in a public highway the driver of a wagon lawfully using them in front of an approaching car must give way and not obstruct the progress of the car, but he is entitled to reasonable warning and reasonable time to clear the track'.</p> <p>6. In an action against a street railway company to recover for injuries sustained by the' driver of a wagon while in the act of driving off defendant’s tracks, the case is for the jury and a compulsory nonsuit was erroneously entered where it appeared that a long ladder protruded over the end of the wagon; that upon being apprised that the car was approaching plaintiff endeavored to drive off the tracks; that the motorman of the car had a view of plaintiff for 300 feet, but drove .up, struck the ladder after the wagon itself had cleared the tracks, pushing the horse and wagon. 150 feet from the point of the collision and throwing the plaintiff to the ground.</p>

<p>Appeal, No. 125, Jan. T., 1916, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1914, No. 139, on verdict for plaintiff, in case of Lydia J. Shaffer v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Evans, J.</p> <p>' The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $8,500 and judgment thereon. Defendant appealed.</p> <p>were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant n. o. v.</p> <p>The deceased was sufficiently familiar with the crossing to he aware of the danger: Nelson v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 57 Pa. Superior Ct. 541; Follmer v. Penna. R. R. Co., 246 Pa. 367; McClure v. Lake Shore & Mich. Southern Ry. Co., 41 Pa. Superior Ct. 227; Bistider v. Lehigh Valley R. R. Co., 224 Pa. 615.</p> <p>The deceased did not look at a proper place; had he leaned forward in his seat he would have seen the approach of the train: Bernstein v. Penna. R. R. Co., 252 Pa. 581; Craig v. Penna. R. R. Co., 243 Pa. 455; Follmer v. Penna. R. R. Co., 246 Pa. 367; Nelson v. Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co., 57 Pa. Superior Ct. 541; Gangawer v. Philadelphia & Reading R. R. Co., 168 Pa. 265; Blotz v. Lehigh Valley R. R.'Co., 212 Pa. 154.</p> <p>Whether the deceased stopped at a proper place was for the jury: Newman v. Del., Lack. & Western R. R. Co., 203 Pa. 530; Newhard v. Penna. R. R. Co., 153 Pa. 417; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Earl v. Philadelphia & Reading Ry. Co., 248 Pa. 193.</p>

<p>Appeal, No. 11, Jan. T., 1917, by defendant, from decree of C. P. Luzerne Co., May T., 1916, No. 10, in equity, for plaintiff, in case of Mary McHale, Administratrix, v. Margaret Toole and the Miners Bank of Wilkes-Barre.</p> <p>Bill in equity to require defendant to pay to plaintiff a sum of money alleged to be held by defendant for tbe use of plaintiff’s decedent. Before Fuller, P. J.</p> <p>The opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court awarded tbe relief prayed for. Defendant appealed.</p> <p>among others, was tbe decree of tbe court.</p>

<p>Appeal, No. 17, Jan. T., 1917, by Charles Kelley, from judgment of C. P. Luzerne Co., Jan. T., 1917, No. 277, on case stated, in case of Charles Hope v. Charles Kelley, James C. Meighan, John J. Meighan, Charles E. Meighan, Eegina M. Meighan, Joseph A. Meighan and Loretta M. Meighan.</p> <p>Case stated to determine the construction of a will. Before Fuller, P. J.</p> <p>Opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff on the case stated. Charles Kelley appealed.</p> <p>was the judgment of the court.</p>

<p> Landlord and tenant—Leases—Renewal—Construction—Intention—Meaning of “first right” to re-lease. </p> <p>1: As a general rule in construing provisions of a lease- relating to renewals, where there is an uncertainty, the tenant is favored and not the landlord, because the latter having the power of stipulating in-his own favor has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself.</p> <p>2. The owner of certain real estate leased the same to a Street railway company as a place of amusement -for the public. The lease provided “that if at the expiration of this lease the party of the second part, its successors and assigns, shall desire to re-lease the said premises for a further period of ten years it or they shall have the first privilege of re-leasing the same at the renewal, and upon the terms herein contained.’’ At the expiration of the term the owner brought an action of ejectment to recover the property, alleging that the lessee had nothing more than the first right to release the premises for another term, providing the lessor was willing at that time to lease to anyone. Defendant contended that it had an absolute right to re-lease the property for another term irrespective of the wishes of the lessor. Held, judgment was properly entered for the defendant.</p>

<p> Negligence-—Master -and servant—Railroads—Shifting of freight —Cars on adjoining tracks—Skid between cars—Slipping of skid —Fall of workman—Death—Assumption of risk—Reliance on master’s judgment—Obvious danger—Customary appliance. </p> <p>1. If the master gives the servant to understand that he does not consider the risk one which a prudent person should refuse to undertake, the servant has a right to rely upon the master’s judgment, unless his own is so clearly opposed thereto that, in fact, he does not rely upon the master’s opinion. A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may rely upon their advice and still more upon their orders, notwithstanding many misgivings of his own.</p> <p>2. Where in an action against a railroad company to recover for the death of plaintiff’s husband while engaged in defendant’s employ in shifting freight from cars standing on adjoining tracks, it appeared that the freight was transferred by means of a skid five feet in length placed between the cars, with the ends overlapping the sides of the ears from three to five inches; that the conductor who was in charge placed the gkid in position and directed deceased to walk backward thereon in order to hold the loaded truck in place; that while deceased was attempting to pull the truck onto the skid the end of the skid slipped from the edge of the car precipitating the deceased and the truck to the ground, fatally injuring the deceased; and that there were no cleats or catches at the ends of the skid, which had been in use for five years, although there was evidence, though strongly contradicted, that such attachments were usual and customary, the questions whether the skid wa,S'reasonably safe and proper and whether the deceased assumed the risk were for the jury and a verdict for the plaintiff will be sustained.</p> <p>3. In view of the fact that the skid had been used for a considerable time with no fastenings and without accident, it cannot be said it was imminently dangerous.</p>

<p>Municipalities—Contracts—Water companies — Talcing over of water plants—Construction—Equity—Ordinances—Waiver of objection by acts—Failure to transcribe—Validity—Ministerial acts —Specific performance—Public Service Commission.</p> <p>1. Where a contract between, a borough and a water company, executed pursuant to an ordinance and in accordance with its terms, provides that at the expiration of ten years the borough shall have the right to purchase the water works at a price that may be mutually agreed upon between the parties, and, if they fail to agree upon a price and .terms, a board of arbitrators shall be appointed to determine the value of the works, the company and the borough each to choose two of the arbitrators and these four tó choose a fifth, a subsequent ordinance of the borough selecting two arbitrators for the purpose of appraising and valuing the plant is ministerial in character and is valid although not transcribed in the ordinance book.</p> <p>2. Where, after the enactment of such ordinance, a request was made upon the water company for a price at which it would sell its plant to the borough, and the company made no objection to the ordinance, but submitted a figure at which it would sell, such action, in effect, conceded that the demand for the arbitrators had been legally authorized by the ordinance, and, it seems, operated to waive its right to attack the validity of the ordinance in that respect.</p> <p>3. In a suit in equity brought by the borough in such case to compel the water company to appoint arbitrators as required by the contract, where it appeared that the defendant offered to sell its plant at a price which was refused by the borough council, the contention that tlie borough made no effort to agree with the company upon a price and was under a duty to continue negotiations toward that end, was without merit; a finding that the parties had not been able to agree was justified by the evidence, and the relief prayed for was properly granted.</p> <p>4. In such case the contention that the water company was not required to appoint arbitrators until the borough had secured the permission of the Public Service Commission for the acquisition of the plant was without merit, where the contract provided that it was optional with the borough whether to purchase after the price had been declared by the arbitrators, and it appeared that the borough had not elected to take over the plant.</p> <p>Mr. Justice Moschzisker dissents.</p>

<p> Insurance—Fire insurance—Cancellation—Nonpayment of premiums. </p> <p>A policy of fire insurance provided “this policy shall be cancelled at any time at the request of the insured or by the company by giving five days’ notice of such cancellation,” and if cancelled, “the premium having been actually paid,” the unearned premium should be returned. The premium to be paid for the policy was $15. The policy was taken out by the insured through brokers and insured contended that the brokers agreed that certain policies held by the insured in other companies should be cancelled and the cash surrender value applied in the payment of the premium. The policy was issued on August 9, 1913, but after repeated'requests the old policies were not sent to the brokers until December 24, 1913. The brokers never collected the surrender value of the policies, but sent them to the agent of the companies for collection. The agent subsequently absconded without paying the brokers. On January 7, 1914, the insured was notified that unless he paid the premium on the policy within five days the policy would be cancelled. On February 5, 1914, the insurance company formally cancelled the policy because of the nonpayment of the premium. Three days thereafter the premises which had been insured were destroyed by fire. In an action by the holder of the policy, against the insurance company, plaintiff contended that the surrender of the other policies to the brokers was an actual payment of the premium on the new policy. Held, (1), tbe premium bad not been “actually” paid, and (2), the policy having been cancelled in accordance with the terms of the contract, the plaintiff could not recover.</p>

<p>Criminal law—Murder—First degree—Evidence—Sufficiency — Motive—Earlier related offense—Admission—Denial at trial—Corroborative evidence of admission—Self-defense—Court and jury— Appeals—Review—Practice, Supreme Court.</p> <p>1. In reviewing a murder ease the Supreme Court does not sit as upon a motion for a new trial to determine where the weight of evidence lies, hut to determine whether the ingredients necessary to constitute murder of the first degree shall have been proved to exist. Where these have been proved, the question of the guilt or innocence of the defendant is for the jury.</p> <p>2. On the trial of a homicide case the prosecution may show defendant’s participation in an earlier offense in order to establish motive for the commission of the homicide, and where the guilt of such earlier offense has been shown by an admission of the defendant before the trial the Commonwealth may, if defendant disputes his guilt thereof at the trial, produce further evidence, relevant to the question of motive arising out of the earlier offense, with the view to support and sustain the admission.</p> <p>3. On the trial of an indictment for murder there was evidence that defendant and his brother had burglarized a store on the night preceding the murder and early on the day of the murder had admitted their participation in the burglary to a witness and showed him certain articles they had taken. This witness informed a constable, who, unaccompanied and unarmed, proceeded to a woods where defendant and his brother had been seen. Shortly thereafter a dozen or more shots were heard from the direction of the woods and another constable hurried to the scene and saw defendant and his brother running in the opposite direction. Deceased had been shot six times in front and four times in the back. Defendant and his brother fled, taking with them decedent’s watch and money and both were apprehended a year after the shooting in another jurisdiction. There was evidence that both defendant and his brother were acquainted with the constable and knew him to be an officer. The defense set up was self-defense, defendant contending that he did not know deceased to be an officer; that deceased had fired the first shot at him and had hit him in the right hand and arm; that they then clinched; that decedent fell and defendant and his brother dragged him face downward into nearby bushes and fied. It appeared from testimony of witnesses for the Commonwealth who saw the defendant the day after the shooting that he was not then suffering from any injury to his hand or arm. Held, a verdict of guilty of murder of the first degree was warranted by the evidence and should be sustained.</p> <p>4. In such case where defendant’s confession of his participation in the burglary was admitted for the purpose of showing his motive in killing the officer, the Commonwealth was properly permitted to present further evidence corroborative of defendant’s admission where he denied at the trial that he had committed the .burglary.</p> <p>5. In such case where defendant after having confessed to his guilt of the burglary denied at the trial that he had participated in it, the court did not err in charging “Now the......robbery—the earlier offense—which has been referred to, to my mind is important in another aspect of the case; it will probably help you to determine what weight will be placed upon the evidence of the defendant in this case.”</p>

<p> Lunatics—Maintenance—Reimbursement from lunatic’s estate —Claim of Commonwealth—Claim of poor district—Acts of June IS, 18S6, P. L. 589; May 31,, 1887, P. L. 303, and June 1, 1915, P. L. 661. </p> <p>1. The amount paid by the Commonwealth for the support and maintenance of .a lunatic is not a mere gratuity, but is based on an implied contract on the part of the lunatic- to reimburse those who have supplied his necessities.</p> <p>2. The Commonwealth’s claim for support of a lunatic in a State institution may properly be asserted in proceedings before an auditor appointed to distribute the lunatic’s estate.</p> <p>3. Where the cost of maintaining a lunatic in a State institution has been paid partly by the State and partly by the county poor district, and the poor district has been reimbursed in full by the lunatic’s guardian for the expenditures so made by it, the funds remaining in the hands of the guardian, where they are less than the amount paid by the State for the lunatic’s support, should be awarded to the Commonwealth, under Act of June 1, 1915, P. L. 661, and it is error for the lower court to award such sum to the poor district, under the Acts of June 13, 1836, P. L. 539, Sec. 33, and May 24, 1887, P. L. 202.</p>

<p>Beal estate—Trusts—Parol trusts—Trusts ex maleficio — Evidence—Act of April 22,1856, P. L. 582.</p> <p>1. Under the fourth section of the Act of 1856, a resulting trust in favor of another can be raised only by actual fraud, against the latter, on the part of the grantee in obtaining title, or from payment of the purchase-money by the cestui que trust at the time the person sought to be fixed with the “confidence” acquires title; and, thereunder, unkept promises, declarations or misrepresentations, which will create a trust ex maleficio, must be made before or at the time the legal title is acquired, for nothing subsequently said by the grantee will avail for that puipose; the evidence in support of a “trust or confidence” as to land must be clear, precise and convincing, and a mere refusal to perform an oral promise is not sufficient to raise such a status; when a relation of this character is evidenced by a written declaration, the latter must contain within itself, without the aid of parol evidence, all that is necessary to enable a chancellor to declare the trust.</p> <p>2. Certain real estate was held by a trust company in trust for a land company. The land company had agreed to sell the property, and the vendee had arranged for the construction of houses thereon, Before the completion of the houses, the vendee absconded and the land company declared the contract forfeited under a clause of the contract authorizing such action. Thereafter, at the request of the land company and upon assurance that he would receive payment in full, the builder completed the houses. Upon advice of counsel, he waived his right to file mechanic’s liens, and the land company caused the property to be conveyed to a straw man, who executed a declaration providing that he held the property in trust to pay certain debts and out of the balance the following should “pro-rate” according to the “amounts or sums” named: the builder, “$3,205; Lyman Felheim, $125; brickwork and brick, $250; Andrews Land Company, for bills paid, $175.” The builder received $1,63.5 from a mortgage which had been raised upon the property by the straw man, which represented his pro rata share of the proceeds "in accordance with the declaration of trust. Thereafter the builder petitioned the court for a sale of the property, alleging that the premises were conveyed to the straw man, in trust, to pay plaintiff in full for his work, and not for the purposes set forth in the written declaration, which petitioner attempted to repudiate as having been made without his knowledge. There was no proof of fraud by the straw man or those associated with him in procuring the conveyance. Plaintiff made no offer to return the money which he had received under the declaration of trust. The lower court awarded the relief prayed for. Held, that, as plaintiff had accepted and retained benefits under the written declaration of trust, he must take the provisions contained therein cum onere, and that if he did not abide by the declaration of trust the statute of frauds denied him the right to set up a parol trust in conflict therewith.</p>

<p>Municipalities—Cities of the first class—Municipal contracts— Bids—Lowest responsible bidder—Advertisement — Ordinances — Acts of May 28,187k, B. L. 280, and June 1,1885, P. L. 87.</p> <p>1. The statutes and ordinances of the City of Philadelphia made in pursuance thereof provide when and the manner in which city contracts shall he made. A contract cannot be entered into without a strict adherence to those statutes and ordinances.</p> <p>2. The duty to advertise for bids is not discretionary with the director of the department of public works, but is imposed upon him by the Act of May 23, 1874, P. L. 230,' Section 6, providing that when work, materials and supplies are required by the City, proposals shall be asked for by advertisement, and when received shall be opened and the contract awarded to the lowest responsible bidder, and this legislative mandate the director is not at liberty to disregard.</p> <p>3. Ordinances of the City of Philadelphia approved November 26, 1894, and December 28,1895, provided that all stone used in municipal work should be cut and prepared in Philadelphia. The City of Philadelphia was about to erect .a library building. Plans and specifications were prepared by the architect, and advertisement for bids was made, which provided that bidders .must fully acquaint themselves with the various legal and departmental regulations with regard to performing the work in the City of Philadelphia. In the specifications it was provided that any contract awarded should be subject, inter alia, to the said ordinances of 1894 and 1895. Thereafter the director sent to bidders who had procured copies of the specifications from the architect’s office, a request to submit alternative bids for cutting the stone both in and outside of the City of Philadelphia. No change was made in the advertisement. The director proposed to award the contract to a bidder for the construction of the building with stone cut outside of the City of Philadelphia. A taxpayer filed a bill in equity to enjoin the city from effecting a contract on the basis of such a bid. The lower court refused a preliminary injunction.</p> <p>Held, that, as the director had disregarded the provision of a valid ordinance in awarding the bid, and had failed to advertise or give public notice of the change in the specifications, bidders might be eliminated who would otherwise desire to bid, and that the relief prayed for should be granted, and the decree was reversed.</p>

<p> Contracts—Beal estate—Agreement of sale—Vendor and vendee —Purchase-price—Default by vendee—Affidavit of defense—Insufficient averments. </p> <p>1. Where an agreement for the sale of real estate does not provide by clear, precise and unequivocal language that the purchaser may terminate it by his own default, such effect will not be given it.</p> <p>2. A written contract for the sale of land provided that the consideration money of $3,000 was “to be paid $200 on the signing of the agreement, which deposit shall be forfeited to the (vendors) as liquidated damages in case of default by the (vendees) in the payment of the purchase-price” and the balance at the time of settlement within thirty days, said time to be of the essence of the agreement. The purchaser paid the down-money, but refused to complete the purchase, though a proper deed was tendered. In an action by the grantor for the recovery of the balance of the' purchase-price, the affidavit of defense alleged (1) that plaintiff had no other remedy than the retention of the deposit money and (2) that time being of the essence of the contract, the contract was at an end upon failure of the vendees to pay the balance of the purchase-price and accept the deed and that plaintiff had no further rights under the contract. The lower court entered judgment for plaintiff for want of a sufficient affidavit of defense. Held, no error.</p>

<p>Practice, Supreme Court—Verdict against weight of evidence— Motion for new trial—Refusal—Failure■ to assign as error—Appeal —Dismissal.</p> <p>1. On appeal from a judgment for plaintiff rendered in an action upon a promissory note, the Supreme Court will not reverse, although they may he of the opinion that the verdict was against the weight of the evidence, where there is no assignment of error complaining of the refusal of the lower court to grant a new trial.</p> <p>2. Where in such case the defense was that the note was a forgery, the note was nevertheless admissible in evidence, when its execution was testified to by a subscribing witness, and an assignment of error, complaining of the admission of the note in evidence was without merit.</p>

<p>Decedents’ estates—Wills—Corporation stoch—Surplus profits— Dividends—Dispute between life-tenant and remainderman.</p> <p>When the stock of a corporation is bequeathed in trust for the use of a beneficiary for life with remainder over, surplus profits accumulated during the testator’s life, but not divided until after his death, belong to the corpus of his estate, while dividends of earnings made after his death, whether in cash, script or stock, are income and are payable to the life-tenant.</p>

<p>Negligence—Automobiles—Trolley cars — Pedestriam.,— Vehicles approaching from opposite directions—Pedestrian walking between vehicles—Death—Warning of approach—Contributory negligence— Judgment for defendant n. o. v. '</p> <p>1. A pedestrian who attempts to cross a street between two vehicles approaching from opposite directions and sees and avoids one but in so doing steps into the path of the other, which he evidently did not see, but which he could easily have avoided had he looked, is guilty of contributory negligence.</p> <p>2. In an action against the owner of an automobile truck to recover for the death of plaintiff’s husband, binding instructions should have been given for the defendant for want of sufficient evidence of negligence on the part of defendant’s driver, and because of the contributory negligence of the decedent, where it appeared that the deceased was attempting to cross a street on which a trolley car and defendant’s truck were approaching from opposite directions; that the deceased stepped in front of the truck, and in an endeavor to avoid being run down stepped backward upon the trolley tracks and was instantly struck and killed by the car; that the car was in plain view and could have been seen by the deceased had he looked before crossing the tracks; and where there was no evidence that defendant’s truck was being driven recklessly or at an excessive rate of speed.</p>

<p> Practice, Supreme Court—Assignments of error—Defective assignments. </p> <p>1. Assignments of error complaining of findings of fact and law by tbe trial judge and bis answers to requests for findings are defective where they do not show tbe exceptions to findings of wbicb complaint is made.</p> <p>2. An assignment of error complaining of an interlocutory order of tbe trial judge directing tbat judgment be entered if no exceptions are filed within thirty days, is defective if tbe record ¡shows tbat exceptions were filed and tbe assignment shows no exception to tbe order of wbicb complaint is made.</p> <p>3. An assignment of error complaining of tbe action of tbe court in dismissing plaintiff’s exceptions to findings of fact and conclusions of law is defective if tbe exceptions are not set forth in tbe assignment.</p> <p>4. An assignment of error complaining of the action of tbe lower court in entering judgment against tbe plaintiff and in favor of tbe defendant for costs is defective if tbe assignment does not quote tbe judgment verbatim.</p> <p> Principal and surety—Contribution—Right to contribution—Insufficient evidence. </p> <p>5. A cosurety cannot be called upon for a contribution for tbe benefit of tbe other surety, if it appear tbat be agreed to become co-surety at tbe request and for tbe benefit of such person.</p> <p>6. In an action of assumpsit by tbe administrator of a decedent’s estate against a person who was cosurety with decedent to enforce contribution upon an obligation on wbicb tbe parties were sureties and wbicb decedent bad paid, it appeared tbat at decedent’s request defendant bad become decedent’s cosurety; tbat tbe loan for wbicb they were liable was in fact made to decedent and tbat be bad deposited stock of his own as collateral security for such loan, and tbat when the loan became due decedent’s stock was sold and the debt paid out of tbe proceeds, a finding by tbe court, before whom tbe case was tried without a jury, tbat decedent was tbe real debtor and not merely a cosurety with defendant was warranted, and the entry of judgment for defendant was proper.</p>

<p>Appeal, No. 320, Jan. T., 1916, by plaintiff, from judgment of C. P. Schuylkill Co., Sept. T., 1913, No. 217, on directed verdict for defendant, in case, of The Dodson Coal Company v. Warren Delano and Frederick A. Delano, Trustees under the last will and testament of Warren Delano, deceased, and under the last will and testament of James S. Cox, deceased.</p> <p>Assumpsit for breach of the covenants of a lease. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>were rulings on evidence and in directing a verdict for defendant.</p> <p>The covenant for quiet enjoyment on the part of the lessor was broken by the defendants: Kelly v. Miller, 249 Pa. 314; BuddScott v. Daniell, L. E. 1902, 2 K. B. 351; Markham v. Paget, L. E. 1908, 1 Ch. Div. 697; Maulé v. Ashmead, 20 Pa. 482; Schuylkill & Dauphin Improvement & E. E. Co. v. Schmoele et al., 57 Pa. 271; Lanigan v. Kille, 97 Pa. 120; Einfield v. Shermer, 56 Pa. Superior Ct. 4; Sanderson v. Mayor of Berwick-upon-Tweed, L. B., 13 Q. B. D. 547.</p> <p>There was no privity of contract between the plaintiff and the defendants: Hill v. Pardee, 143 Pa. 98; Freeman v. Penna. E. E. Co., 173 Pa. 274.</p>

<p>Appeal, No. 73, Jan. T., 1916, by defendant, from order of C. P. Delaware Co., June T., 1911, No. 5, granting a new trial, in case of President and Managers of the Danboro & Plumsteadville Turnpike Road .Company v. County of Bucks.</p> <p>Appeal from award of viewers in condemnation proceedings, Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court. The court subsequently set aside the verdict and granted a . new trial. Defendant appealed.</p> <p>were in setting aside the verdict and in granting a new trial.</p> <p>The Act of June 2, 1887, P. L. 306, was repealed by tbe Sproul Act of May 31, 1911, P. L. 468, and tbe court bad no jurisdiction to entertain tbe action.</p> <p>Proceedings under tbe Act of 1887 are not inconsistent witb or repugnant to action by tbe State Highway Commission under tbe Sproul Act of 1911.</p>

<p>Appeal, No. 74, Jan. T., 1916, by defendant, from order of C. P. Delaware Co., June T., 1914, No. 6, granting a new trial, in case of President and Managers of the Doylestown & Danboro Turnpike Road Company v. County of Bucks.</p> <p>Appeal from award of viewers in condemnation proceedings. Before Johnson, P. J. .. .</p> <p>The facts appear in Danboro & Plumsteadville Turnpike Road Co. v. Bucks County, 258 Pa. 391.</p> <p>Verdict for defendant by direction of the court. The court subsequently set aside the verdict and granted a new trial/ Defendant appealed.</p> <p>were in setting aside the verdict and in granting a new trial.</p>

<p> Negligence—Electric companies—Telephone companies—Use of poles by both companies—Telephone lineman—Death—Contact with electric .company’s wires—Alleged joint tort-feasors—Release —Effect—Telephone beneficial fund—Payment—Action against electric company—Contributory negligence—Case for jury. </p> <p>' 1. In an action for personal injuries the defendant cannot show either as a bar to the action or in reduction of damages that the injured person received or is entitled to receive compensation for his injury in the form of insurance or otherwise.</p> <p>2. While the release of one joint tort-feasor releases all, the release of one joint tort-feasor of an action sounding in contract will not release another joint tort-feasor of an action sounding in tort, although the tort may have given rise to a cause of action upon the contract.</p> <p>3. Where in an action against an electric company to recover for the death of plaintiff’s husband, it appeared that deceased was a lineman in the employ of a telephone company, and that while engaged in repairing the telephone company’s line his death was occasioned by his coming in contact with a defectively insulated wire of the defendant which was strung on the same pole and close to the telephone company’s line, the fact that the telephone company and the defendant might have been joint tort-feasors and that plaintiff had released the telephone company of liability did not preclude her right to r'ecover from the defendant where it appeared that the plaintiff had received certain insurance money from the telephone company, under its insurance plan, and that the release was given in acknowledgment of receipt of the insurance money, although its terms expressly covered any claims which plaintiff might have against the telephone company for the death of her husband.</p> <p>4. In such case although the break in the insulation of defendant’s wire was plainly visible, it could not be said as a matter of law that deceased necessarily had notice of the defective condition of the insulation from his examination of the wires of the telephone company, as it did not appear that it was his duty to examine defendant’s wires or that either he or the telephone company had knowledge that the wire which caused the injury was carrying a high voltage, and the case was properly submitted to the jury.</p>

<p> Practice, 0. 0.-—-Wills—Alleged forgery—Precept from 0. O. to O. P. on court’s motion—Findings of fact—Appeals. </p> <p>1. Where at the hearing of a will contest the Orphans’ Court of its own motion sent the case to the Common Pleas Court to try certain issues of fact which were subsequently determined by the jury in favor of the contestants, and thereafter the Orphans’ Court filed a decree setting aside the will as being invalid, the fact that, although no party in interest petitioned for such trial, issues were framed and sent to the Common Pleas Court for trial/was not reversible error, where the Orphans’ Court declared that it rested its findings of fact upon the evidence taken before it and not upon the conclusions of the jury in the Court of Common Pleas. The case may be treated as though no precept for the trial of issues had gone out.</p> <p>2. In such case the fact that the president judge of the Orphans’ Court presided at the trial in the Common Pleas does not show that he was influenced by the latter proceedings, where he certified that the proceedings in the Common Pleas merely served to strengthen his convictions.</p> <p>3. Where in such case there was evidence to support the findings of the Orphans’ Court the decree was affirmed in the absence of manifest error in the findings.</p>

<p> Contracts—Agreement to loan money—Breach—Proximate result —Building operation—Abandonment—Payment of part—Estoppel —Damages—Measure of damages. </p> <p>1. An essential element of estoppel is that the party seeking to rely upon the doctrine must have been misled to his injury by reason of either the action or silence of the other.</p> <p>2. The payment of part of a sum due under a contract is only conclusive on the party to whom the money is owing as an acquit-. tanee for that amount; it does not estop him from claiming the balance due in accordance with the terms of the contract.</p> <p>3. The measure of damage for breach of contract must be a proximate and not a remote, result of the breach; and must be one the defaulting party was bound to foresee would result as a probable consequence.</p> <p>4. Plaintiff, a builder, desiring to erect dwelling houses applied to a trust company for a loan to purchase the real estate and erect the buildings, stating that he would need $40,000. The builder was at that time indebted to the trust company for sums amounting to $20,-000. The builder was informed by the president of the trust company that if acceptable security was furnished the amount desired would be allowed as a collateral loan. The arrangement for the loan was subsequently made and plaintiff was to purchase the property and execute mortgages thereon in favor of the trust company to be held by it with other securities amounting in toto to $149,650 as collateral for advancements made from time to time as needed in the building operation. Thereafter at the request of the trust company the builder delivered a memorandum in which he gtated “in consideration of your advancing $40,000 on my note, secured by mortgage on ground and buildings,......together with other collateral, I agree to pay you the 'sum of $2,000 as commission...... and .at the same time I authorize you to charge against my account for collateral.” The collateral was deposited and the builder commenced work on the houses. But the trust company refused to advance more than would be sufficient to raise the builder’s total .indebtedness to the trust company to $40,000. Then the trust“company paid the plaintiff $1,960, making the total indebtedness $40,000. By reason of the trust company’s refusal to advance the additional $20,000, the builder was unable to complete the building operation. The builder brought a bill in equity to compel the surrender to him of said collateral upon payment of defendant’s advances, less damages suffered by plaintiff because of the refusal of the defendant to carry out its agreement. Meld, (1) the conclusion of the lower court that the trust company agreed to advance the sum of $40,000 in addition to the indebtedness already existing was amply supported by the evidence; (2) plaintiff, by accepting $1,960, with knowledge that the trust company denied liability- for further advances, was not estopped from making a demand under his contract for the remainder of the $40,000; (3) damages were properly awarded by the lower court for the amount paid on account of construction work, the court having found that such payment was rendered a total loss by the abandonment of the operation, but the court erred in permitting recovery for loss of materials from the site of the operation by theft after work had stopped, such loss not being a proximate result of the breach of the contract; and the decree was modified accordingly and affirmed.</p> <p>5. In such case plaintiff testified the market value of the land and the construction placed thereon at the time the work stopped was about $15,000; it appeared the purchase-price of the land a short time previous was $12,500. Meld, (1) while the difference between these sums may reasonably be assumed to represent the value of the work, this value is too speculative to be used as a measure of damage; (2) the burden was on defendant to show at least that the securing of a ready purchaser was reasonably certain before the work already done had deteriorated, or that the materials in place possessed a cash value at the time the work stopped.</p>

<p> Contracts—Agreement to lend money—Breach—Damages—Items of damage—Evidence—Speculative profits. </p> <p>1. The rule governing the measure of damages in cases of breach of contract, is that damages recoverable are such as may be fairly and reasonably considered as naturally arising from the breach according to the usual course of things, and under the circumstances contemplated by the parties at the time of entering into the contract. Damages for loss of uncertain, remote or speculative profits cannot be recovered.</p> <p>2. 'Where damages were claimed from a trust company for breach of defendant’s contract to loan money to plaintiff, a builder, whereby plaintiff was forced to abandon a partly completed building operation, the court properly refused in the calculation of plaintiff’s loss an item of $700 paid plaintiff’s bookkeeper for seven months’ salary from October 1, 1914, to April 30, 1915, where the building contract was not entered into until February 16, 1915, and work was not started until a few days thereafter and was discontinued on April 3,1915, it being apparent that the entire amount claimed could not be charged against the building operation, and there was no evidence to show what part of such amount was chargeable to the operation, presumably the bookkeeper’s time was not exclusively employed on the business of the operation.</p> <p>3. In such ease the item of damage for the loss of profits plaintiff estimated he would have realized had the building operation been completed and the houses sold, was properly refused in the absence of evidence clearly showing what profits, plaintiff would have made had the houses been completed, especially where it appeared that the houses might not have been completed for the amount specified in the builder’s contract, which was not bonded, and where there was no evidence to show the possibility of obtaining within a reasonable time purchasers for the property.</p> <p>Practice, Supreme Court — Appeals — Assignments of error— Rule 26..</p> <p>4. An assignment of error complaining of a lower court’s decree containing a number of distinct and separate provisions and orders so that the assignment might relate to all or any of the matters set forth in the decree is violative of Rule 26 of the Supreme Court.</p> <p>5. Where a decree is based on the lower court’s findings of fact and conclusion of law to which exceptions were taken and dismissed, the appeal may be quashed where the dismissal of such exceptions has not been assigned for' error.</p>

<p>Appeal, No. 41, Jan. T., 1917, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March T., 1915, No. 3925, refusing to take off non-suit, in case of Adolph Hauptman v. Pennsylvania Working Home for Blind Men of the City of Philadelphia, a corporation.</p> <p>Assumpsit for breach of a contract of sale. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit which the court in banc subsequently refused to take off. Plaintiff appealed.</p> <p>was in refusing to take off the nonsuit.</p> <p>The decision of the court below was contrary to the rule stated by the leading text writers and applied with unanimity by the courts of last resort in other jurisdictions, and was also in conflict with two decisions of this court: Burton v. Miller, 227 Pa. 143; Honesdale Ice Co. v. Lake Lodore Improvement Co., 232 Pa. 293; E. L. Nissley & Co. v. Bushong, 27 Lane. Law Bev. 398; Wolson v. Wernwag, 217 Pa. 82; Saxev. Penokee Lumber Co., 159 N. Y. 371 (54 N. E. Repr. 14); Follansbee v. Adams, 86 111. 13; Barnett v. Elwood Grain Co., 153 Mo. App. 458 (133 S. W. Repr. 856); Rockford Malleable Iron Works v. Tilden, 188 Mich. 80 (154 N. W. Repr. 35); Maybank & Co. v. Rogers, 88 S. Car. 572 (71 S. E. Repr. 48); Nottingham Coal & Ice Co. v. Preas, 102 Va. 820 (47 S. E. Repr. 823); Fairchild-Gilmore-Wilton Co. v. Southern Refining Co., 158 Cal. 264 (110 Pac. Repr. 951); Stahr v. Hickman Grain Co., 132 Ky. 496 (116 S. W. Repr. 784); Carney v. Vogel, 52 Wash. 571 (100 Pac. Repr. 1027); Burgiev. Hicks, 203 Fed. Repr. 340; E. W. Bliss Co. v. Buffalo Tin Can Co., 131 Fed. Repr. 51; Jackson v. Washington, B. & A. Electric Ry. Co., 35 App. Cas.D. G 41.</p> <p>No damages were proven by plaintiff.</p>

<p>Appeal, No. 70, Jan. T., 1917, by Louis H. Eisenlohr and Charles J. Eisenlohr, from decree of O. C. Philadelphia Co., Jan. T., 1916, No. 85, dismissing appellants’ exceptions and sustaining appellee’s exceptions to adjudication, in Estate of Otto Eisenlohr, Deceased.</p> <p>Exceptions to adjudication. Before Anderson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed exceptions filed by Louis H. Eisenlohr and Charles J. Eisenlohr and sustained exceptions filed by Josephine F. Eisenlohr. Louis H. Eisenlohr and Charles J. Eisenlohr appealed.</p> <p>were in dismissing the exceptions.</p>

<p> Contracts—Agreement to pay money at obligor’s death—Alleged :revocation by will—Construction—Intention. </p> <p>1. The mere fact that a writing- is to become.effective only after the death of a party is not sufficient to give it a testamentary character.</p> <p>2. Tbe delivery of a bond to pay a sum of money at tbe obligor’s death renders it perfect as a present obligation.</p> <p>3. A partner agreed with bis copartners under seal that certain sums should be paid to them upon his death. Subsequently such partner made a will wherein he revoked all former wills. Upon his death his executors, who were also his partners, took credit in their account for the amount specified in the agreement. Decedent’3 widow contended that the agreement was testamentary in character and was revoked by the subsequent will. Reid, the Orphans’ Court properly allowed the claim of the executors.</p>

<p>Criminal law — Murdei—Trials — Instructions to the jury — Waiver of inadequacy—Evidence—Cross-examination—Harmless answers—Withdrawal of juror—Judicial discretion.</p> <p>1. While it is the duty of the court in a homicide case to define the meaning of the words “reasonable doubt,” yet where the court fully instructs the jury that the defendant is entitled to the benefit of any reasonable doubt fairly arising out of the testimony and at the end of his charge asks defendant’s counsel if there is anything else he wishes the court to say to the jury, to which counsel replies “nothing, your Honor,” the fact that the trial judge does not define the meaning of the words “reasonable doubt” is not reversible error.</p> <p>2. Where at the trial of an indictment for murder it appeared that defendant and a third person were engaged in an altercation with deceased, that shots were fired both by defendant and the third person, and where the evidence was conflicting as to whether or not. deceased was killed by defendant or by such third person, but where it further appeared that the crime was committed with a thirty-eight calibre revolver and defendant admitted his was of that calibre and that he threw it away after the occurrence, a verdict of guilty of murder of the second degree was justified by the evidence, although there was nothing to show that defendant and such third person were acting in concert when deceased was killed.</p> <p>3. Where defendant’s wife was an important witness in his behalf it was competent to ask her on cross-examination if she had not made statements to a certain person at variance with her testimony and on her denial to offer proof that she had.</p> <p>4. Where the district attorney was permitted on cross-examination to ask certain of defendant’s witnesses if they were not members of the Black Hand Society and whether they were pledged to disregard the American oath, to which questions they replied in the negative, the defendant’s rights were sufficiently protected by the refusal of the court to permit the Commonwealth to offer evidence</p> <p>■upon that subject and by charging the jury to disregard it.</p> <p>5. A witness may be interrogated as to his conviction of such offenses as affect his credibility but it is not proper to ask him as to his guilt of some alleged crime not connected with the case on trial, and of which he was never convicted; where, however, such improper question has been asked and answered in the negative the defendant is not prejudiced, and the refusal of the court to withdraw a juror moved for on the ground that such improper question has been asked, is not an abuse of judicial discretion.</p> <p>6. Where on the trial of a homicide case, the district attorney asked a witness for the defendant whether he had not cut a certain person, and the witness answered in the negative, the defendant’s motion for the withdrawal of a juror was properly refused.</p>

<p>Appeal, No. 207, Jan. T., 1916, by Commonwealth Trust Company, Trustee, from decree of C. P. Columbia Co., Dec. T., 1915, No. 1, in equity, dismissing petition for leave to foreclose a corporate mortgage in case of The Columbia and Montour Electric Company v. The North Branch Transit Company.</p> <p>Bill in equity for an injunction and for the appointment of a receiver.</p> <p>Petition by the Commonwealth Trust Company, Trustee, for leave to foreclose the mortgage on a branch of defendant formerly owned by The Columbia and Mon-tour Electric Railway Company. Before Evans, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. The Commonwealth Trust Company, Trustee, appealed.</p> <p>was the decree of the court.</p>

<p>Appeal, No. 79, Jan. T., 1917, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1912, No. 681, on verdict for plaintiff, in case of James C. Florence v. The Delaware, Lackawanna and Western Railroad Company.</p> <p>Trespass to recover damages for the destruction of plaintiff’s buildings by fire. Before O’Boyle, 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>were answers to points, instructions to the jury and the refusal of the court to direct a verdict for defendant.</p> <p>There was not sufficient evidence that the .fire was caused by a spark emitted from defendant’s locomotive to carry the case to the jury: Henderson et al. v. Phila. & Reading R. R. Co., 144 Pa. 461; Reading & Columbia R. R. Co. v. Latshaw, 93 Pa. 449.</p> <p>The engine was not negligently operated: Knoxv. Phila. & Reading Ry. Co., 202 Pa. 504; Newhard v. Penna. R. R. Co., 153 Pa. 417; Custer v. Balt. & Ohio R. R. Co., 206 Pa. 529; Reading & Columbia R. R. Co. v. Ritchie et al., 102 Pa. 425; Childs v. Penna. R. R. Co., 150 Pa. 73; Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. 182.</p> <p>There was sufficient evidence to show the cause of the fire: Badman v. Penna. R. R. Co., 42 Pa. Superior Ct. 531; Mellinger v. Penna. R. R. Co., 229 Pa. 122; Prey v. Penna. R. R. Co., 244 Pa. 443; Knickerbocker Ice Co. v. Penna. R. R. Co., 253 Pa. 54; Shafer v. Lacock, Hawthorn & Co., 168 Pa. 497; Emig v. Northern Central Railway Co., 43 Pa. Superior Ct. 432; Showalter v. Mutual Fire Ins. Co-, of Chester County,- 3 Pa. Superior Ct. 452.</p> <p>It was not a defense against the plaintiff that there might have been an equitable assignment of the suit in favor of an insurance company ■ Campbell v. Galbreath, 5 Watts 423; Armstrong v. Lancaster, 5 Watts 68; Walsh v. Wilkes-Barre, 215 Pa. 226.</p>

<p>Negligence—Railroads—Crossing—Ice—Pedestrian — Failure to look—Fall—Contributory negligence—Nonsuit.</p> <p>1. Where the facts are simple and the evidence by which they are presented is involved in no uncertainty their legal value is for the courts to determine.</p> <p>2. A pedestrian walking along a traveled highway is not required to keep his eyes fastened upon the ground continually to discover points of possible danger, nor is it- necessary that he should in order to avoid exposed pitfalls lying directly in the path before him, but the law does require that he be observant of where and how he is going so as to avoid danger- which ordinary prudence would disclose.</p> <p>3. In an action against a railroad company to recover for personal injuries caused by plaintiff’s slipping and falling upon ice which had accumulated at the defendant’s grade crossing, a compulsory nonsuit was properly entered where it appeared that such ice was. the only ice in the locality, that it could be plainly seen for a distance of over six feet, and plaintiff admitted that she could have seen it had she looked where 'she was walking, but gave no satisfactory reason why she did .not.</p>

<p>Judgments—Opening of judgments—Defenses—Payment — Set-off—Unliquidated account—Evidence—Sufficiency.</p> <p>A judgment was entered on a bond accompanying a mortgage of coal lands and defendant petitioned for the opening of tbe judgment, alleging payment. It appeared tbat under an agreement recited in tbe bond and mortgage and contemporaneously executed therewith, plaintiff was constituted defendant^ selling agent for tbe coal be mined, tbat plaintiff was to deduct from tbe price of each ton a certain amount to be applied on account of tbe bond, and tbat defendant was to make thereon additional monthly payments. Plaintiff became indebted to defendant for coal delivered in. a sum greater than tbe balance due on tbe bond, and defendant directed plaintiff to deduct from tbe sum so due tbe defendant an amount sufficient to pay the bond. On refusal of plaintiff to so apply tbe money, defendant instituted suit for this money. Defendant was indebted to plaintiff on other accounts and plaintiff entered judgment, on tbe bond, contending that be was entitled to apply tbe funds in bis hands to tbe other accounts. Tbe lower court opened the judgment and framed an issue to determine tbe question of payment. The jury found a general verdict for the defendant and found specially that defendant had directed -the application of the money in the hands of the plaintiff to the payment of the balance due on the bond and mortgage, and that when such direction was given there was a sufficient sum in plaintiff’s hands to pay the bond. Held, (1) the judgment was properly opened; (2) defendant’s direction to apply the funds in plaintiff’s hands in payment of the bond operated as a payment thereof; (3) the claim was not the set-off of an unliquidated account but payment; and the verdict for the defendant will be sustained.</p>

<p> Real property—'Conveyances—Mortgages—Recording—Form of name on index—Name of grantor—Name of mortgagor—Omission of middle initial—Constructive notice. </p> <p>The purchaser of land from one commonly known as Herman Bergold, .and signing his name without a middle initial, is-bound to take notice of a prior recorded and indexed mortgage covering-the same land, executed by the same man, but signing with a middle initial, as Herman A. Bergold.</p> <p>Prouty v. Marshall, 225 Pa. 570, distinguished.</p>

Appeal, No. 333, January T., 1916, by plaintiff, from final order of C. P. Northampton Co., Sept. T., 1916, No. 80, setting aside award of Workmen’s Compensation Board, in case of Sheridan N. Marsh v. Ida Groner. Appeal from award of Workmen’s Compensation Board. Before McKeen, J. The opinion of the Supreme Court states the facts. ' The court set aside the award of the Workmen’s Compensation Board. Plaintiff appealed. was the order of the court.

<p> Judgments—Rule to open judgment—Bonds—Blanket mortgage —Release clause—Payment—Subrogation—Contribution. </p> <p>1. An application to open a judgment is an equitable proceeding addressed to the discretion of the court and in considering such action the court will pass upon all the facts and do justice between the parties.</p> <p>2. If the assignee of a mortgage makes payments to the mortgagee from time to time to protect his individual interests and the interests in which he is mutually concerned with others, such payments not being made with the intention of cancelling the mortgage' pro tanto, he is entitled to subrogation to the rights of the mortgagee to the extent of such payments; and if the mortgage is paid in full and satisfied, he is entitled to equitable contribution from the others.</p> <p>3. A blanket mortgage covering a number of lots reserved to the mortgagor and his assigns the right to have the lots released from the lien of the encumbrance upon payment of certain sums per front foot. Payments were made by owners of certain of the lots and such lots were released from the lien of the mortgage. The owner of the bond entered up judgment thereon. The owner of certain of the lots which have not been released from the lien of the mortgage petitioned the court to open the judgment, alleging that under the judgment as entered the lots held by him would be chargeable with a larger amount of the debt than they were chargeable with under the terms of the mortgage, and further alleging that the judgment represented .a larger amount than was due upon the mortgage. The lower court dismissed the petition. Held, (1) the lots owned by the petitioner should not be subjected to a higher charge than was represented by the amount due computed at the foot front price, and (2) the judgment should have been opened so as to permit the petitioner to show that under the judgment the plaintiff would receive a greater sum than he would be equitably entitled to if payment were made in full on such basis, and the order was reversed.</p> <p>4. In such case if an adjustment on the basis of the foot front price would result in a payment of more than is due to the assignee of the mortgage and thus permit him to profit at the expense of the other parties to the transaction, the burden is on the petitioner to show such fact.</p> <p>5. In such case petitioner’s contention that the conveyance to him not having made express reference to the mortgage, he took free from the encumbrance thereof except as to the amount actually due on the mortgage, not taking into consideration the payments which the assignee of the mortgage had made to the mortgagee for the former’s protection, is without merit where petitioner had actual knowledge of the mortgage.</p>

<p>Appeal, No. 370, Jan. T., 1916, by defendant, from judgment of C. P. Clearfield Co., May T., 1916, No. 7, on verdict for plaintiff, in case of George H. Dusb v. Harbison-Walker Refractories Company.</p> <p>Trespass to recover damages for personal injuries. Before Bell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,302.50 and judgment thereon. Defendant appealed.</p> <p>were in refusing to direct a verdict for defendant and answers to points.</p> <p>—Plaintiff voluntarily assumed the risk: Meixner v. Phila. Brewing Co., 210 Pa. 597; Zeilmann v. McCullough, 214 Pa. 27; Danisch v. Amer, 214 Pa. 105; Sandt v. North Wales Foundry Co., 214 Pa. 215; Lindberg v. National Tube Co., 213 Pa. 545; Powell v. American Sheet & Tin Plate Co., 216 Pa. 618; Lee v. Dobson, 217 Pa. 349.</p> <p>Even though the plaintiff might have relied upon the promise of the superintendent to have the defects remedied he could only rely upon such promise so long as was reasonably necessary to make the repairs ; as he continued in such employment after the lapse of such time he must be considered to have waived the defects and to have assumed the risk himself, even though he did not know that the repairs had not been made: Illinois Steel Co. v. Mann, 170 111. 200 (48 N. E. Repr. 417; Hough v. Texas & Pacific Ry. Co., 100 U. S. 213; Eureka Co. v. Bass, 81 Alabama 200 (8 So. Repr. 216); Dowd v. Erie R. R. Co., 57 Atl. Repr. 248; Houston City v. Owen, 67 S. W. Repr. 788; McCluskey v. Garfield & Proctor Coal Co., 61 N. E. Repr. 804; Stalzer v. Jacob Dold Packing Co., 84 Mo. App. 565; Reese v. Clark, 146 Pa. 465; Clader v. Gangewere, 63 Pa. Superior Ct. 174.</p> <p>The¡ plaintiff was guilty of contributory negligence in attempting to work in a place such as his testimony shows that place to have been: Snyder v. Union Drawn • Steel Co., 251 Pa. 451; Owens v. Henderson & Co., 253 Pa, 428.</p> <p>A servant does not by remaining in his master’s employ with knowledge of defects in the machinery which he is obliged to use, assume the risks attendant on the use of such machinery if he has notified his employer of such defects or protests against them in such a way as to induce a confidence that they will be remedied: Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Patterson v. Pittsburgh & Connellsville E. R. Co., 76 Pa. 389; Webster v. Monongahela River Consol. Coal & Coke Co., 201 Pa. 278; Brownfield v. Hughes, 128 Pa. 194; Hollis v. Widener, 221 Pa. 72; Pfeifer v. Allegheny Steel Co., 243 Pa. 256; Dobra v. Lehigh Val. Coal Co., 250 Pa. 313; Collins v. Phila. & Reading Ry. Co., 244 Pa. 211; Maines v. Harbison-Walker Co., 213 Pa. 145.</p>

<p> Decedents’ estates—Real estate—Liability for decedents’ debts. </p> <p>1. The limitation, imposed by the Act of June 14, 1901, P. L. 562, “that no debts of a decedent except as may be secured by mortgage or by judgment or revived by scire facias five years prior to the death of such decedent shall remain a lien on the real estate of such decedent longer than two years after the death of such decedent, unless an action for the recovery thereof be commenced ......within a period of two years after his decease,” relates to debts existing at the time of decedent’s death and does not include liabilities of any other kind or nature.</p> <p>2. The order holding an affidavit of defense sufficient will not be disturbed on appeal where the correct result has been reached by the court below, although the true legal significance of the facts alleged in the affidavit was misapprehended or misconstrued.</p> <p>3. An action was brought against d borough for injuries resulting to a pedestrian from a fall upon a sidewalk in the borough, and judgment was rendered for plaintiff. Thereafter the owner of the land upon which the sidewalk was built died. More than two years after the death of the decedent the borough brought an action against the executor of the decedent and recovered a judgment. A writ of scire facias was issued to revive the judgment and continue it as a lien on certain real estate formerly of the decedent but which had passed into the hands of devisees. The owner of the properly to whom it had been devised by the decedent alleged in an affidavit of defense that the claim had lost its lien upon the land if any it had. The court discharged plaintiff’s rule for judgment for want of a sufficient affidavit of defense on the ground that suit had not been commenced within two years of decedent’s death. Held, the affidavit of defense was sufficient for the reason that plaintiff’s claim was not a debt existing at the time of the death of the decedent within the meaning of the Act of 1901, and could not therefore, under any circumstances be a lien against decedent’s property after his death.</p>

<p>Negligence—Townships—Highways — Adjacent declivities—Absence of guard rails—Icy condition of road—Team—Driver — Death—Contributory negligence—Case-for jury.</p> <p>1. A township must exercise reasonable care to keep its highways in a safe condition for ordinary travel. It must anticipate and provide against danger to persons using its roads for travel conducted in the ordinary manner. It must remove obstructions and defects which would naturally or probably cause injury to those persons who might have occasion to travel upon its highways. This duty is not confined to maintaining the bed of the road in a solid and safe condition and clear of obstructions, but extends to the erection of barriers or other deviceg for guarding unsafe or dangerous places on or along the road.</p> <p>2. If a public road through a township is so dangerous by reason of its proximity to a precipice that common prudence requires extra precaution, in order to secure safety to travelers, the township is bound to use such precaution, and the omission to do go is negligence.</p> <p>3. In an action against a township to recover damages for the death of plaintiff's husband where it appears that deceased was walking behind a team and wagon-while ascending a hill on a highway in defendant township; that the road was made slippery by rain and sleet; that adjacent to the highway wag a steep unguarded declivity; that the wagon began to slide toward the declivity by reason of the slope in the road and its slippery condition and deceased grabbed the wagon to steady it and was precipitated, with the wagon and team, down the embankment, the questions whether defendant township was negligent in failing to have the embankment properly guarded, and whether decedent was guilty of contributory negligence in not retaining his seat on the wagon and directing the team from it, and in seizing the wagon as it began to slide, should have been submitted to the jury.</p>

<p>Decedents’ estates—Executors and administrators — Assets — Property not belonging to estate—Gift to heirs from third party— Account—Evidence—Insufficiency.</p> <p>1. An executor or administrator cannot be charged in his account with money or property received or held by him otherwise than in his fiduciary capacity as a representative of the decedent, and where he has so charged himself he is entitled to withdraw such charge from his account.</p> <p>2. An executor or .administrator is chargeable with the assets of the estate, but not for property which may have come to him from an outside source as a gift to the heirs as individuals.</p> <p>3. Where at the audit of the account of an administrator it appeared that decedent shortly before his death had been declared a bankrupt and left no estate, but that a former business partner of his had made a voluntary promise to him to make a gift to decedent’s heirs in the event of the promisor being successful in a certain business enterprise, and thereafter such promisor paid a considerable sum into the hands of the executor in fulfilment of such promise, such fund was not a part of the estate, the*promise imposing no obligation enforceable either at law or in equity, and the administrator cannot be surcharged for distributing the fund among the heirs in the proportions directed by the donor, although not in .accordance with the provisions of the intestate law.</p>

<p> Wills—Trusts—Active and dry trusts—Petition for termination. </p> <p>1. In construing a trust provision in a will the intention of the donor is the primary and controlling consideration, and not the desire of the beneficiary.</p> <p>2. Active or special trusts are those in which, either from the express directions of the language creating the trust, or from the very nature of the trust itself, the trustees are charged with the performance of active and substantial duties with respect to the control, management, and disposition of the trust property for the benefit of the cestuis que trust. They may, except when restricted by statute, be created for every purpose not unlawful, and, as a general rule, may extend to every kind of property, real and pergonal.</p> <p>3. A testamentary direction to a trustee to hold, invest and manage the corpus of a fund for a definite period, and pay the income therefrom at stated periods to a beneficiary, creates an active trust which the statute does not execute and which will continue to be operative and cannot be terminated until the purpose for which the trust was created has been accomplished.</p> <p>4. A testatrix directed her executors to pay a legatee “$25 per month for and during his natural life, and to keep sufficient funds invested therefor, and, in case of sickness, if the said sum is not sufficient for his maintenance, I authorize my executors to pay such additional amount as in their judgment may be necessary.” She further directed her executors “to keep sufficient of my personal property invested, and to use the income to pay” certain bequests including the one above mentioned. “The surplus income, if any, to be paid to” her residuary legatee. The executors resigned and a trust company was appointed trustee. All persons interested in the estate except the Said pecuniary and residuary legatees died and the Orphans’ Court directed that $15,000 be paid to the trustee to be held by it for the uses and purposes above specified, the balance if any of income not needed for the annuitant to be paid over to the residuary legatee. Said beneficiaries entered into an agreement whereby it was stipulated that the $15,000 held by the trustee should be divided in certain proportions between them, and petitioned the court for a decree that said sum held by the trustee .should be paid over in accordance with the agreement. Held, the court properly dismissed the petition.</p>

<p>Appeal, No. 118, Jan. T., 1917, by plaintiff, from judgment of C. P. Cumberland Co., Sept. T., 1914, No. 156, on verdict for plaintiff, in case of S. B. Leach v. Philadelphia, Harrisburg & Pittsburgh Bailroad Company.</p> <p>Appeal from award of viewers in condemnation proceedings. Before Staples, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,550 and judgment thereon. Plaintiff appealed.</p> <p>were rulings on evidence and instructions to the jury.</p>

<p>Eminent domain—Railroad companies—Alleys — Condemnation —Measure of damages—Right of way—Encroachment—Abandonment.</p> <p>1. Where a railroad company has condemned for railroad purposes an easement of way over an alley, it is error to permit the owner of the property to prove as an item of damage the cost of “rearranging his ground necessitated by the closing of the alley and the road over his property.”</p> <p>2. Where in such case it appeared that plaintiff had opened a quarry, which encroached in part upon the alley, it was error to permit a witness to base his estimate of damage upon the value of 'other ground of plaintiff, which would have to be used to take the place of'the alley which was appropriated, and upon the value of stone which was under the surface which the witness thought could otherwise have been quarried from the additional ground.</p> <p>3. In such case it was for the jury to determine whether the conduct of plaintiff in opening a stone quarry and in erecting a building upon part of the right of way amounted to the abandonment of the alley as such.</p> <p>4. The fact that an owner of land has encroached upon an abutting alley over which he has a right of way, making of it a convenience in his private business, gives him no right to reckon the loss of such personal conveniences as part of the damages to be recovered when the alley is condemned for railroad purposes.</p>

<p>Appeal, No. 393, Jan. T., 1916, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1916, No. 221, on verdict for plaintiff, in case of Jennie A. Eby v. The Travelers Insurance Company, Hartford, Connecticut.</p> <p>Assumpsit on a policy of life insurance. Before Sadler, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,702.50 and judgment thereon. Defendant appealed.</p> <p>were rulings on evidence and instructions to the jury.</p> <p>There was no competent proof that the death of the insured resulted from the accident.</p> <p>The declarations of the deceased as to the facts and circumstances surrounding the alleged accident were improperly admitted in evidence: Commonwealth v. Werntz, 161 Pa. 591; Keefer v. Pac. Mut. Life Ins. Co., 201 Pa. 448; 'Elkins v. McKean, 79 Pa. 493; Penna. E. E. Co. v. Lyons, 12D Pa. 113; Coll v. Easton Transit Co., 180 Pa. 618; Hanover E. E. Co. v. Coyle, 55 Pa. 396; Smith v. Stoner, 243 Pa. 57; Travelers’ Ins. Co. of Chicago v. Mosley, 75 U. S. 397; Ogden v. Penna. E. E. Co., 1 Monaghan (Pa.) 249; Hill v. Central Accident Ins. Co., 209 Pa. 632; Briggs v. East Broadtop R. R. & Coal Co., 206 Pa. 564; Tyson v. Union Traction Co., 199 Pa. 264; Greed v. Manufacturers’ Light & Heat Co., 238 Pa. 248; Waldele v. N. Y. Cent. & Hudson River R. R. Co., 95 N. Y. 274; Eastman v. Boston & Maine R. R., 43 N. E. Repr. 115; Richmond & Danville R. R. Co. v. Hammond, 9 So. Repr. 577; McCarrick v. Kealy, 40 Atl. Repr. 603; Hill v. iEtna Life Ins. Co., 63 S. E. Repr. 124; Baumgardner v. Southern Ry. Co., 43 S. E. Repr. 948; Estell v. State, 51 N. J. Law 182 (17 Atl. Repr. 118); Louisville & Nashville R. R. Co. v. Pearson, 12 So. Repr. 176; Barnes v. Inhabitants of Rumford, 52 Atl. Repr. 844; Dunlap v. Chicago, Rock Isl. & Pac. Ry. Co., 129 S. W. Repr. 262; Steinhofel v. Chicago, Milwaukee & St. Paul Ry. Co., 65 N. W. Repr. 852; Roach v. Western & Atlantic R. R. Co., 21 S. E. Repr. 67.</p> <p>The declarations made by the insured to his wife in relation to the accidental lodgment of tooth brush bristles in his throat which caused violent coughing, choking and strangling were admissible as part of the res gestee: Commonwealth v. Werntz, 161 Pa. 591; Travelers’ Ins. Co. of Chicago v. Mosley, 75 U. S. 397.</p> <p>The statements of the decedent in relation to his internal condition, sensations, feeling and symptoms made for the purpose of securing medical advice were competent: Lichtenwallner v. Laubach, 105 Pa. 366; Lake Shore & Mich. Southern Ry. Co. v. Rosenzweig, 113 Pa. 519; Gosser v. Ohio Valley Water Co., 244 Pa. 59; No. American Life & Accident Ins. Co. v. Burroughs, 69 Pa. 43; Dabbert v. Traveler’s Ins. Co., 2 Cine. Super. Repr. 98 (1872-73).</p> <p>The case was for the jury: Taylor v. General Accident Ins. Corp., 208 Pa. 439; McCullough v. Railway Mail Assn., 225 Pa. 118.</p>

<p>Appeal, No. 67, Jan. T., 1917, by plaintiff, from order of C. P. Erie Co., Feb. T., 1915, ’ No. 77, refusing to take off nonsuit, in case of Teófila Moses v. Northwestern Pennsylvania Railway Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Rossiter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.</p> <p>was in refusing to take off the nonsuit.</p> <p>cited: Cress v. Braddock & Homestead St. Ry. Co., 14 Pa. Superior Ct. 87; Sheetz v. United Traction Co., 49 Pa. Superior Ct. 177; Ehrisman v. East Harrisburg City Pass. Ry. Co., 105 Pa. 180; Raulston v. Philadelphia Traction Co., 13 Pa. Superior Ct. 412; Shaughnessy v. Consolidated Traction Co., 17 Pa. Superior Ct. 588; Manayunk & Roxborough Boarding & Livery Stable v. Union Traction Co., 7 Pa. Superior Ct. 104; Frame v. Electric Traction Co., 180 Pa. 49; Devlin v. Beacon Light Co., 198 Pa. 583; Schum v. Penna. R. R. Co., 107 Pa. 8; Longenecker v. Penna. R. R. Co., 105 Pa. 328; King v. Pitts., Harmony, Butler & New Castle Ry. Co., 242 Pa. 497.</p> <p>The deceased was guilty of contributory negligence : Yingst v. Lebanon & Annville St. Ry. Co., 167 Pa. 438; Hollihan v. Pittsburgh Rys. Co., 54 Pa. Superior Ct. 204; Smith v. Holmesburg, Tacony & Frankford Electric Ry. Co., 187 Pa. 451; Dunkle v. City Passenger Ry. Co., 209 Pa. 125; Orr v. Conestoga Traction Co., 246 Pa. 441; Callahan v. .Traction Co., 184 Pa. 425.</p>

<p>Wills— Undue influence — Testamentary capacity— Wife’s will written by husband—Husband principal beneflcia/ry—Issue devisapit pel non—Refusal.</p> <p>1. Where a husband writes his wife’s will, in which he is named as sole beneficiary to the exclusion of their children, the burden of proving that the husband exercised undue influence over his wife is upon the contestant.</p> <p>2. A petition for an issue devisavit vel non asked for on the ground of undue influence and lack of testamentary capacity was properly refused where it appeared that testatrix devised her entire property to her husband, the proponent, to the exclusion of their two children; that for some years the husband and wife had lived apart but their relations were friendly; that the son became ill and the husband went home to assist in nursing him, and the wife contracted the illness and during such illness dictated a will to her husband, who wrote it down and gave it to her; that she read and signed it and tbe husband did not see it again until after her death when it was found in her bureau drawer; that the son and daughter were of dissolute habits and unworthy of their parents; and where there was evidence that the wife’s mind was clear at and before the time when the will was made and the evidence to the contrary was not sufficient to support a verdict, and there was nothing to show that the husband had exercised any influence over her to induce her to make the will.</p>

<p>Appeal, No. 106, Jan. T., 1917, by respondents, from order of C. P. McKean Co., Oct. T., 1914, No. 19, awarding mandamus, in case of Commonwealth ex relatione Citizens National. Bank, Port Allegany, Pa., v. T. W. Camp, President, and J. S-' Walker, Treasurer of Consolidated Glass Company, and the Consolidated Glass Company and Thomas W. Camp, Intervening Defendants.</p> <p>Petition for mandamus. Before Bouton, P. J.-</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a peremptory mandamus, as prayed for. Respondents appealed.</p> <p>was in awarding the peremptory mandamus.</p> <p>The courts of Pennsylvania had no jurisdiction over the internal management of a foreign corporation: Madden v. Penna. Electric Light Co., 181 Pa. 617; McClosky v. Snowden, 212 Pa. 249; Birmingham Fire Ins. Co. v. Commonwealth ex rel. Kuehneisen, 92 Pa. 72.</p> <p>The court should not have allowed the unsealed assignments of stock certificates to be offered in evidence without requiring proof of the consideration therefor: Littell v. Scranton Co., 42 Pa. 500.</p> <p>The defendant should have been permitted to prove that the consideration for which the stock certificates were assigned was illegal: Pearce y. Wilson, 111 Pa. 14.</p> <p>There was no need to prove the consideration before the certificates were offered in evidence: Shattuck v. American Cement Co., 205 Pa. 197; Wadlifiger to use v. First Nat. Bank of Minersville, 209 Pa. 197; Grubb v. Mahoning Navigation Co., 14 Pa. 302; Ben Franklin Fire Ins. Co. v. Flynn & Hamm, 98 Pa. 627; Stegmaier v. Keystone Coal Co., 225 Pa. 221; Littell v. Scranton Gas & Water Co., 42 Pa. 500.</p> <p>The lower court had jurisdiction to entertain the action: Madden v. Penna. Electric Light Co., 181 Pa. 617; McCloskey v. Snowden, 212 Pa. 249; Birmingham Fire Ins. Co. v. Com. ex rel. Kuehneisen, 92 Pa. 72; Sproul v. Standard Plate Glass Co., 201 Pa. 103; Chambers v. Bradford Building, Loan & Savings Assn., 55 Pa. Superior Ct. 444.</p>

<p>Appeal, No. 220, Jan. T., 1916, by plaintiff, from judgment of C. P. Northampton Co., July T., 1914, No. 29, on directed verdict for defendant, in case of Nazareth Foundry and Machine Company v. Marshall Machinery and Supply Company, Frank J. Marshall, William B. Marx and Josephine W. Marx.</p> <p>Assumpsit on a bond. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>were in directing a verdict for defendant, in refusing to enter judgment for plaintiff n. o. v., answers to points and rulings on evidence.</p> <p>The changes made in the two engines were immaterial and not sufficient to operate as a release of the sureties under any view of the case: Barclay v. Decker-hoof, 151 Pa. 374; Fitzpatrick et al. v. McAndrews & Collins et al., 12 Co. Ct. 353; Loughney v. Huntsman Construction Co. et al., 63 Pittsburgh 171.</p> <p>The contract was a separable contract and evidence as tó engines not involved in this suit should be excluded: Fullmer v. Poust, 155 Pa. 275; Lucesco Oil Co. v. Brewer, 66 Pa. 351.</p> <p>The changes made in the two engines constituted a departure from the contract which released the surety.</p>

<p>Appeal, No. 217, Jan. T., 1916, by plaintiff, from judgment of C. P. Northampton Co., Dec. T., 1911, No. 38, on directed verdict for defendant, in case of Nazareth Foundry, and Machine Company v. Marshall Machinery and Supply Company, Frank J. Marshall, William B. Marx and Josephine W. Marx.</p> <p>Assumpsit on a bond. Before McKeen, J.</p> <p>The facts appear in Nazareth Foundry & Machine Co. v. Marshall Machinery & Supply Co. et al., 258 Pa. 558.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>were in directing a verdict for defendant, in refusing to enter judgment for plaintiff n. o. v., answers to points and rulings on evidence.</p>

<p> Public officers—Tax collector—Bond—Default—Liability of sureties—Act of June 25,1885, P. L. 187—Local Act of February 17,1859, P. L. 151—SchuyllciU County—Bond filed in Quarter Sessions—Certification to Common Pleas—Form of suit—County and school district as use-plaintiffs—Bight to enter judgment immediately on default—Acts of June 25,1885, P. L. 187, Sec. 9, and May 21, 1918, P. L. 284. </p> <p>1. Proceedings on a tax collector’s bond, conditioned that the tax collector should pay over or account for according to law the whole amount of taxes charged and assessed in the books which shall be delivered to him, may be brought in the name of the Commonwealth, at the instance of the parties for whose benefit the obligation was intended, and no assignment or authorization from the Commonwealth is necessary.</p> <p>2. Where in such case the principal has made default, judgment may be entered immediately on the bond without notice to the ¡sureties.</p> <p>3. The fact that the municipal officials of the district have been negligent in the discharge of their duty, in failing to require the tax collector to account promptly for the money which he had received, is no defense to an action against the surety on a tax collector’s bond.</p> <p>4. In such case there is no merit in the contention that the proceeding was premature for the reason that the tax collector had for three- months after the expiration of his term to pay the money. Although Section 9 of the Act of June 25, 1885, P. L. 187, as amended by the Act of May 21,1913, P. L. 284, allows three months’ time within which to make a “complete settlement,” this provision does not contemplate that proceedings may not be instituted before the expiration of that time should the collector fail to account for taxes collected at any particular period.</p> <p>5. In such case there is no merit in the contention that, under the local Act of February 17,1859, P. L. 51,.the bond is only for the security of the township, borough and school taxes, since it makes no reference to county taxes, where the condition of the bond was for the collection and paying over of “the whole amount of taxes-charged and assessed in the duplicate which shall be delivered to him.”</p> <p>6. The general Act of June 25, 1885, P. L. 187, regulating the collection, of taxes, and providing that it shall not apply to any taxes the collection of which is regulated by a local law, does not repeal the local Act of February 17, 1859, P. L. 51, relating to the collection of taxes in Schuylkill County, and providing that the tax collector shall file his bond with the clerk of the Quarter Sessions Court, and upon default by a tax collector the court properly certified the bond to the Common Pleas for the purpose of having judgment entered thereon.</p>

<p>Appeal, No. 78, Jan. T., 1917, by Henry Stout, Daniel A. Jones and James A. Cunningham, from decree of C. P. Carbon Co., Oct. T., 1916, No. 5, removing them from office as School Directors of the Borough of Summit Hill, in re Petition of Resident Taxpayers and Citizens to Declare the Seats of the Board of Directors of the School District of the Borough of Summit Hill Vacant and to Appoint Others to Their Places.</p> <p>Petition to declare seats of school directors vacant. Before Barber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court removed the directors. The school directors appealed.</p> <p>was the decree of the court.</p>

<p>Appeal, No. 86, Jan. T., 1917, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1915, No. 35, on verdict for plaintiff, in case of Tillie M. Donnelly v. Lehigh Navigation Electric Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict for plaintiff for $2,120 and judgment thereon. Defendant appealed.</p> <p>were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. y. .</p> <p>The testimony establishes that the accident was caused by Donnelly’s legs coming in contact with the lower or 1,100-volt line.</p> <p>Donnelly assumed the risk arising from coming in contact with the 1,100-volt line: Myers v. Edison Elec. Ilium. Co., 225 Pa. 387; Haertel v. Penna. Light & Power Co., 219 Pa. 610.</p> <p>Donnelly assumed the risk arising from coming into contact with the hanging switch blade: Bowen v. Penna. B. E. Co., 219 Pa. 105; Masterson v. Eldridge, 208 Pa. 212; Nuss v. Bafsnyder, 178 Pa. 397; Beed v. Norristown Electric Light & Power Co., 223 Pa. 591.</p> <p>Donnelly was guilty of contributory negligence: Weir v. Haverford Elec. Light Co., 221 Pa. 611; Hart v. Allegheny County Light Co., 201 Pa. 231.</p> <p>The place where Donnelly was working was reasonably safe according to the usage and practice of the business he was engaged in.</p> <p>Donnelly’s death was caused by coming in contact with the hanging switch blade.</p> <p>At all events, the question of how Donnelly met Ms death was for the jury: Hockenberry v. New Castle Electric Co., 251 Pa. 394.</p> <p>Donnelly did not assume the risk arising from coming in contact with dhe 4,400-volt line, as contended by the defendant: Rummell v. Dilworth, Porter & Co., 131 Pa. 509; Doyle v. Pittsburgh Waste Co., 204 Pa. 618; Bartholomew v. Kemmerer, 211 Pa. 277; Bannon v. Lutz, 158 Pa. 166.</p> <p>Donnelly did not assume the risk arising from coming in contact with the hanging switch blade: Bardsley v. G-ill, 218 Pa. 56; Leonard v. Nazareth Cement Co., 49 Pa. Superior Ct. 535; Philadelphia, Wilm. & Balt. R. R. Co. v. Keenan, 103 Pa. 124; Bonner v. Pittsburgh Bridge Co., 5 Pa. Superior Ct. 281; Raymer v. Standard Steel Works, 216 Pa. 101.</p> <p>The accident was not due to the contributory negligence of the deceased.</p>

<p>Negligence—Street raihvays—Passenger on back platform<—Fall turning curve—Crowded car—Conflicting evidence — Burden of proof—Contributory negligence—Special verdict—Single question —Failure to object—Waiver..</p> <p>1. A single finding of the jury in response to a specific question by the court cannot be sustained as a special verdict; it is the province of a special verdict to find and place on the record all the essential facts in the ease; this includes the disputed as well as the undisputed facts. What is not found by the verdict is presumed not to exist and no inferences as to matters of fact are permitted'to Supply the facts themselves which the verdict should have found. In entering judgment the court is confined to the facts found by the special verdict and unless they are sufficiently found no-judgment can be entered. The jury must find the facts and .the court declare the law on the facts so found.</p> <p>2. It is proper for the court in certain eases to request the jury to find -a special verdict or to make special findings of fact in addition to the general verdict.</p> <p>' 3. Where; in an action against a street railway company brought by- a passenger to recover damáges for injuries sustained in consequence .of- being thrown from the- platform of. a trolley car • on which he was riding, the court began, seemingly,-to deliver a general charge to the jury and then submitted to the jury the question, "Was there available space inside the car where plaintiff could have stood had he chosen to do so ?” and the jury answered the question in the affirmative, and the court thereupon directed a verdict for defendant, the finding of the jury could not be sustained as a special verdict, and the court should have submitted, the whole ease to the jury, there being conflicting evidence on such disputed question of fact.</p> <p>4. In such case, where the question was not of itself conclusive of the rights of the parties, and the court suggested that, after its answer, he would instruct the jury on the further questions of the ease, the plaintiff’s rights were not waived because his counsel failed to object to the submission of that question, or by the fact that he called the court’s attention to certain evidence relating thereto, especially where, before the verdict was rendered, the plaintiff secured an exception to the charge of the court and answers to the points in the usual form.</p> <p>5. Where there was evidence that the accident happened while the car was rounding a curve at a high rate of speed, and that it resulted in consequence of the sudden lurching of the car; .that the car was so crowded that there was no standing room inside, which made it necessary for plaintiff to stand on the platform and where, if there was such standing room inside, there was evidence that the entrance of the car was So crowded as to render it impracticable for plaintiff to reach the standing room, the case ghould have been submitted to the jury, notwithstanding a strong preponderance of the evidence in favor of the defendant.</p> <p>6. Where plaintiff contended that he was unable to pass into the ear because of the passengers standing therein, the question whether there was standing room in the front or rear of the car was material and the court erred in charging the jury that it was a minor circumstance and did not make much difference one way or the other.</p> <p>7. Where a passenger is injured while standing upon the platform of a car, the burden is upon him to show that there was no room for him inside, or if there was such room, that the crowded condition of the car made it impracticable for him to reach it; failing to meet this burden, he is charged with contributory negligence.</p>

<p> Trusts and trustees—Transfer of life interests to remainderman —Remainderman a charity—Termination of trust. </p> <p>1. No matter what may be the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands; when that demand has been fully satisfied, although the trust may not have ceased by expiration of time, yet, if all the parties who are or may be interested in the trust property are in existence and are sui juris, and if they all consent and agree thereto, courts of equity may decree the termination of the trust.</p> <p>2. A testatrix devised her real estate to a trust company in trust, to pay over the net income to her brothers during their lives, and provided that, if either or both of these brothers should die before a sister, his or their income should be paid to the sister for life, and on the death of the last surviving life beneficiary, testatrix devised the principal of' the trust property in fee to a charitable corporation. One of the brothers died, and the surviving brother and sister conveyed their interests to the remainderman. The remainderman petitioned for the termination of the trust, alleging that by the conveyance of the particular interests to it the purpose of the trust, which was to protect the remainder interests, no longer existed. The Orphans’ Court refused the prayer of the petition. Held, the purpose of the trust was to protect the corpus pending the duration of the life interests and such purpose having been accomplished the trust should be declared terminated.</p> <p>3. In such case the fact that the remainderman is a charity is immaterial, there being no question of accumulation of income for the remainderman’s benefit involved.</p>

<p>Appeal, No. 80, Oct. T., 1917, by Donald C. Duffy, from order of C. P. Armstrong Co., March T., 1917, No. 50, quashing writ of quo warranto, in case of Commonwealth of Pennsylvania ex rel. Charles C. Huston, Donald C. Duffy, Appellant, v. H. G. Luker, J. W. Glenn, and Charles B. Ellermeyer.</p> <p>Petition for quo warranto.</p> <p>Motion to quash alternative writ. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the motion and quashed the writ. Relator appealed.</p> <p>was in quashing the writ of quo warranto.</p>