Volume 260 — Pennsylvania State Reports

<p>Contracts — Defenses — Receipt — Payment “on account of contract in full” — Acquittance—Dispute■—■Consideration—Case for jury.</p> <p>1. The acceptance of a smaller sum in payment of a larger amount presently due is no bar to an action for the balance, unless in settlement of a dispute, as consideration therefor.</p> <p>2. In an action on a building contract and for extras furnished in connection therewith, the defense was that plaintiff had been paid in full by direct payments to him and through the payment of bills of third parties for liabilities incurred by him. At the trial there was a conflict in the evidence concerning the alleged payments to persons other than plaintiff, on the latter’s account, and defendant largely relied upon a receipt or voucher, endorsed by plaintiff, reading, “The treasurer of [defendant] will please pay [plaintiff], or order......on account of contract in full.” The trial judge ruled that in view of the circumstances and considering the lapse of time (over five years) since the building was completed and the voucher endorsed, such receipt was conclusive evidence of a complete settlement. The action was brought within the statutory period. Held, (1) there was not sufficient evidence to show a dispute between the parties at the time the voucher was signed, (2) there was not sufficient evidence that the sum .represented by the voucher was expressly tendered or accepted on the basis of a settlement in full, (3) the phraseology of the voucher was too vague to be considered, as a matter of law, as a complete acquittance, and (4) the lower court erred in directing a verdict for the defendant.</p>

<p>Negligence• — Master and servant — Moving, machinery — Insufficient guards — Safe place to worh — Proximate cause — Appliances not in ordinary use — Burden of proof — Contributory negligence— Assumption of risJc- — •Obvious danger — Proximate cause — Two causes — Guessing by jury — Case for jury.</p> <p>1. A jury may not be permitted to guess at the cause of an injury and where the proven facts indicate two or more possible causes, for only one of which defendant could be responsible, there can be no recovery? but where the facts fairly warrant the inference that the cause for which defendant is responsible proximately resulted in the injury to the exclusion of all other conditions, a finding'for plaintiff will be sustained. -</p> <p>2. While a master is not bound to use the newest and best appliances in the conduct of his business, it is his duty to furnish those of usual character and reasonable safety, the test of negligence being the ordinary usages of the business.</p> <p>3. While an employer charged with negligence in respect to the kind of appliances furnished his employees disproves want of care by showing that the appliances are such as are used ordinarily in the business, failure to use such appliances ordinarily used by others in the same business is not necessarily negligence, as such a rule would forbid the use of newer and safer methods; and where the machinery is not such as is ordinarily used the burden is on the plaintiff to show that it was more dangerous than that customarily employed.</p> <p>4. An employee assumes the risk of the ordinary dangers of his employment, not the risk incurred by the employer’s negligence in failing to perform the duties imposed upon him by law, one of which is to provide reasonably safe tools and machinery with which to work.</p> <p>5. In an action against an employer to recover for personal imjiirieS sustained by 'an employee while engaged in connecting a clutch lever of a gas engine with a gasoline compressor, where it appeared that the lever caught in the revolving machinery, and swung suddenly around, striking plaintiff; that the lever used on the engine in question was of a different construction, and more dangerous than that ordinarily used; and where there was evidence warranting a finding that the accident could not have happened had the customary style of clutch lever been used, there was no merit in defendant’s contention that plaintiff had failed to show that the accident was due to defendant’s negligence and a verdict and judgment for the plaintiff were sustained.</p> <p>6. In such case where plaintiff stood between the lever and the flywheel of the engine at the time of the accident and it appeared that an iron pipe was kept near the engine for slipping over the lever and lengthening it sufficiently to enable the operator to throw the clutch without placing himself between the appliance and the flywheel, but where it was doubtful whether if plaintiff had used the pipe the accident would have been avoided, the court could not have held plaintiff guilty of contributory negligence as a matter of law.</p> <p>7. Under the facts of this case, the danger was not so obvious that the court could say as matter of law that plaintiff was bound to foresee the accident.</p>

<p>Appeal, No. 155, Oct. T., 1917, by defendant, from judgment of C. P. Allegheny Go., April T., 1915, No. 296, on verdict for plaintiff in case of Margaret Pelt, Administratrix of the Estate of John Felt, Deceased, v. Borough of West Homestead. Before</p> <p>Trespass for death of plaintiff’s husband. Before Davis, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,500 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto-.</p> <p>The highway in question was a public highway: Kniss v. Borough of Duquesne, 255 Pa. 417.</p> <p>Defendant was guilty of negligence: Lindberg v. Mifflin Township, 247 Pa. 464.</p>

<p>Corporations — Failure to pay in ten per cent, of capital stock in cash — Ouster—Corporation de facto — Stock owned by one person— Payment for stock by building equipment — Transfer of possession —Receivership of business — Bankruptcy—Sales within four months —Sales in bulk — Act of Ma/rch £8, 1905, P. L. 6% — Auditor—Findings of fact — Conclusiveness.</p> <p>1. The entry of a judgment of ouster against a corporation for failure to pay into its treasury the ten per cent, in cash required by the statute does not affect its rights as a corporation de facto prior to such judgment. So far as related to third parties its busi-, ness, transactions are valid.</p> <p>2. Horses, carts, hoisting machines and building equipment of a building contractor are neither merchandise nor fixtures within the meaning of the Act of March 28, 1905, P. L. 62, making voidable certain sales of merchandise and fixtures in bulk.</p> <p>3. To render a transfer of property made within four months before the filing of a petition in bankruptcy voidable under the Federal statutes, the party making the transfer must be at the time insolvent.</p> <p>4. To render a transfer of personal property valid as against creditors it must be accompanied by such change of possession as is consistent with the nature of the property and the situation of the parties. A change of location of the property is not essentially necessary. If the purchase was in good faith and for a valuable consideration followed by acts intended to transfer the possession as well as the title, and the vendee assumed such control of the property as to reasonably indicate a change of ownership, the delivery of possession cannot as a matter of law be held insufficient.</p> <p>5. A purchase will not be declared fraudulent in law where the conduct of the party shows that there was an intention to transfer possession as well as the title and the vendee assumes such control of the propery as ought reasonably to indicate a change of ownership.</p> <p>6. At the audit of the account of a receiver of a contracting business the trustee in bankruptcy of the individual who owned all of the capital stock in the business claimed ownership of the fund substituted for certain personal property. It appeared that the contractor organized a corporation with a capital stock of $100,000, conveyed to it building equipment appraised at $90,000 for that amount of its stock and gave his check to meet the statutory requirement of ten per cent, cash, but the amount of such check was never collected; that the corporation failed and a receiver was appointed two days after a petition in involuntary bankruptcy had been filed against the contractor, who was later adjudged a bankrupt; that after the transfer of the building equipment to the corporation the corporate name was placed on the buildings being érected and on the office door and on the housings of the horses; that those with whom the contractor had done business were notified of the change and existing contracts were transferred from him to the corporation, and new contracts were made in the corporate name, and a bank account and books were kept in its name. The fund in dispute was derived from the receiver’s sale of the personal estate of the corporation, including the building equipment transferred to it by the contractor. The auditor awarded the fund in dispute to the receiver, and such award was confirmed by the lower court. Held, (1) the Act of March 28, 1905, P. L. 62, relating to, sales of a stock of merchandise had no application; (2) there was no evidence that would justify a finding that the contractor was insolvent at, the time of the transfer of the property in question to the corporation and such transfer was therefore valid under the Federal Bankruptcy Act, and (3) the question whether the change of possession of such property was all that could be reasonably expected, in view of the character and situation of the property and the relation of tbe parties, was one of fact for the auditor and his finding, based upon evidence, would be sustained.</p> <p>Hunter Construction Co. v. Lyons, 233 Pa. 561, distinguished.</p> <p>7. The finding of an auditor approved by the lower court is as conclusive as the verdict of a jury.</p>

<p>Wills — Advancements—Construction — Intention — Contracts — a1 Performance — Absence of express time — Seasonable time.</p> <p>1. Where no definite time is expressed for performance of a contract, a reasonable time must be allowed.</p> <p>2. A testator in 1907 entered into a contract with his son for the sale to the son of certain land. One thousand dollars was to be paid upon the execution of the agreement. It was provided that the balance should be paid “in the manner and at such times as may hereafter mutually agreed upon by the said parties.......The portion of the purchase-money remaining unpaid is to bear interest at the rate of five per cent, per annum payable annually.” ' In his will, made about one month prior to the contract, testator provided “It is my will and I direct all advancements of money or property made by me in my lifetime to any of my children and for which I may hold notes or other evidences of indebtedness shall be taken and considered as part of the share of such child in the estate under this my will.” Testator died in 1908. The executors filed an account in 1916, wherein they claimed credit for the amount of the balance due under the agreement as an advancement allowed to the son on account of the share distributable to him under other provisions of the will. Held, the lower court properly determined that the amount due under the agreement could not be treated as an advancement, that payment was due within a reasonable time which had expired and surcharged the executors therewith.</p>

<p>Corporations — Contracts—Entire or divisible — Sale of stoclc — Payment — Consideration—Agreement to obtain purchaser for subscriber's holdings — Breach—Suit against corporation — Defenses— Ultra vires — Estoppel.</p> <p>1. A principal cannot avail himself of the benefits of an agent’s act, and at the same time repudiate his authority.</p> <p>2. A corporation may not avail itself even of ultra vires as a defense where .a contract has been entered into and executed' in good faith by the other party and the corporation has received the benefit of the performance'.</p> <p>3. Where a subscription to the capital stock of a corporation was made .upon the faith of a guarantee of the corporation signed by the treasurer on its behalf, that it would furnish the subscriber with a buyer for the stock within six months, if desired, at a price to net the subscriber a profit of $2.50 per share, and the subscriber paid the company for the stock, the company was liable at the expiration of six months, upon its failure to furnish a purchaser for the stock upon request, in accordance with the agreement, and the defense that the contract was ultra vires and that the treasurer was not authorized to make such a contract was without merit.</p>

<p>Jurisdiction, 0. G. — Wills—Probate—Date of wills — Register of wills court — Jurisdiction.</p> <p>1. The jurisdiction of the Orphans’ Court is limited. It possesses none inherently and exercises such only as is conferred or implied from legislation.</p> <p>2. However inoperative a will may he with respect to some of its provisions, if executed in accordance with the requirements of the Statute and the testator he of testamentary capacity, it is nevertheless a valid will.</p> <p>3. The essentials of a valid will, that is a will entitled to probate, are, first, that it be executed according to statutory requirements and, second, that it be the free act of one having a sound and disposing mind, memory and understanding. These are purely questions of fact and are proper matters of inquiry before the register. When they affirmatively appear, the right to have the paper admitted to probate has been fully established.</p> <p>4. The register of wills has no jurisdiction to determine in the first instance the date when a will was executed, and, therefore, he has no jurisdiction to affect the rights of a child of testator by determining whether or not the will was executed prior to or after the birth of such child.</p> <p>5. The Orphans’ Oourt has no jurisdiction to determine the date of the execution of a will, on appeal from a decree of the register of wills fixing the date of the execution of such will.</p> <p>6. On appeal from a decree of the register of wills, admitting a will to probate, it appeared that testator had made a will bearing date August 2, 1911, that testator 'died January 17, 1916. The register of wills found that said will was executed August 2, 1911, and admitted it to probate. Testator was survived by a widow and a son who was born January 15, 1912. On appeal from the register’s decree the Orphans’ Oourt, after a hearing, found that the will was executed on August 3, 1912, and directed that the probate of the will as of August 2, 1911, be revoked, and that it be probated as of August 3, 1912. The son was not mentioned in the will and the effect of the decree of the Orphans’ Oourt was to deny him any participation in the estate. Held, the Oi^hans’ Oourt was without jurisdiction to revoke the probate of the will, and to direct its probate as of a different date, and its decree was reversed.</p>

<p>Trusts — Testamentary trusts — Trusts for charitable purposes— Removal of trust fund to another county — Negligence of trustee— Petition for termination of trust — Refusal — Gy pres doctrine — Statutes — Reenactment of earlier statute — Repeal by implication of intermediate statute — Acts of April 26, 1855, P. L. 828; July 7, 1885, P. L. 259; May 9, 1889, P. L. 178, and May 28, 1895, P. L. Ilk.</p> <p>1. Courts, in their control over trustees who hold for charitable uses, exercise the broad visitorial and supervisory powers of the Commonwealth, and when in their opinion the interests of any particular trust can be served best by sending the fund into an adjacent county, they have ample power to do so, if such course is not expressly or impliedly forbidden by the donor or testator.</p> <p>2. A testator, leaving a will, which was probated in Westmoreland County, devised his residuary estate to a religious society to erect and maintain an industrial school, and further declared “One portion of said residuary estate will consist of my farm [describing it] upon which I direct that the said Benedictine Society shall erect and set up suitable buildings- and establish a school of an industrial character for the training and education of boys....... In case [the society]......shall not accept the devise......then the same is given......to the Catholic Diocese of Pittsburgh for the same purpose as mentioned and for no other.” The society having refused the trust, the Catholic Bishop of Pittsburgh was appointed trustee and obtained leave to sell a part of the said real estate and to remove the institution which had been established thereon to the City of Pittsburgh. Certain next of kin of the testator petitioned that such decree be vacated. The lower court refused the petition without evidence. Petitioners contended that the court was bound to assume and find every material allegation of the petitioners in their favor, or else hear testimony thereon, and that the court had no power to remove the trust estate to another county. Held, that tbe petitioners’ allegation that tbe testator intended tbe institution to be erected upon his farm exclusively was not supported by the will, and that the court had power in its discretion to remove the trust estate to another county, if it should deem it desirable to do so, in the absence of any provision in the will expressly or impliedly forbidding such course.</p> <p>3. It is a cardinal maxim in the courts of chancery that a trust will not fail for want of a faithful trustee. The mere fact that a trust for charitable uses has been mismanaged by the trustee does not entitle the collateral heirs of the testator to the property.</p> <p>4. In such cases petitioners alleged that by reason of the mismanagement of the fund by the trustee it had become impossible to carry out the intention of the testator and that they were entitled to the fund under the Act of July 7, 1885, P. L. 259, providing, in effect, that, in the disposition of property by will, made for charitable purposes, if the object of the trust ceases to exist, such property shall go to the heirs at law and next of kin of decedent. The Orphans’ Court dismissed the petition. Held, upon appeal,, that under the Act of May 9, 1889, P. L. 173, providing that in such cases it shall be the duty of the court having equity jurisdiction to carry into effect the intent of the testator, so far- as the same can be ascertained, and the Act of May 23, 1895, P. L. 114, reenacting the cy pres Act of April 26, 1855, P. L. 328, Section 10, providing that it shall be the duty of a court of equity to carry into effect the intent of the testator as far as practicable and otherwise the fund “should accrue to the public treasury for the public use,” the petitioners had no legal standing to complain, and the decree was affirmed.</p> <p>5. A later statute, which is merely a reenactment of a former one, does not repeal an intermediate act which qualifies and limits the first one, but such intermediate act will be deemed to remain in force and to qualify or modify the new act in the same manner as it did the first.</p>

<p>Replevin — Machines—Title — Innocent purchaser— Conflicting evidence — -Unreliable testimony for defendant — Remedy — Judgment for plaintiff n. o. v. — New trial — Case for jury.</p> <p>1. Where in an action of replevin for.a machine, which had been sold by plaintiff to a third person in New York, under an agreement by which the purchase-money was secured by a series of notes and a chattel mortgage, authorizing the plaintiff to retake the machine upon default, and thereafter defendant acquired possession of the machine by purchase from certain individuals deriving title from such third person, but where the evidence was conflicting as to whether the last individual’purchasers acted for themselves or as representatives of the defendant, and whether these parties had knowledge of the terms of the original sale by the plaintiff, the case was for the jury, and the jury having found in favor of the defendant, it was error for the lower court to enter judgment for plaintiff n. o. v.</p> <p>2. It is error for the court to enter judgment for plaintiff n. o. v. on the ground that the material parts of defendant’s testimony is unworthy of belief; the proper remedy is a new trial.</p> <p>Practice, C. P. — Practice, Supreme Court — Judgment n. o. v.— Pending motion for new trial.</p> <p>3. Where in such case a motion for a new trial was pending at the time of the entry of the judgment, and the lower court entered judgment without prejudice to a further application for a new trial, in case it should be decided by the appellate court that the entry of judgment was erroneous, the Supreme Court remitted the</p> <p>record with directions to dispose of the motion for a new trial, and, if the new trial should be refused, then to enter judgment on the verdict.</p>

<p>Banks and hanking — Interest on deposits — Agreement as to rate —Evidence—Notation in books — Bes gestee — Statute of limitations —Points for charge founded on disputed evidence — Harmless error.</p> <p>1. In an action against a bank to recover interest on deposits, a notation on the books of the bank, stating the rate of interest, not disclosed to plaintiff, would not be evidence against the plaintiff to disprove the contract alleged by him concerning the rate of interest either as part of the res gestee or upon any other proper theory.</p> <p>2. Where plaintiff sues to recover interest at four per cent, per annum on his bank deposit and the entries in plaintiff’s pass book are a transcript from defendant’s ledger and it was admitted at the trial that they showed interest at the rate of two per cent, not four per cent, annually, the exclusion of evidence as to the ledger entries would be harmless error even if it was admissible.</p> <p>3. The statute of limitations does not apply to a bank deposit until demand has been made, for the debt is not due until then. This rule refers to both principal and interest.</p> <p>4. In an action of assumpsit to recover interest alleged to be due on bank deposits at an agreed rate of four per cent., where the bank alleged that the agreed rate was two per cent., it appeared that, while plaintiff was given a pass book about November 11, 1902, shortly after the deposit was made, no entry of interest was made therein until March 25, 1914. The entries disclosed the fact that the interest had been calculated at two per cent, instead of four per cent., the agreed rate as alleged by the plaintiff, whereupon he brought suit for the difference. A witness was offered by the defendant to prove a notation on the books of the bank regarding the rate of interest, but the evidence was excluded by the court. Held, no error.</p> <p>5. In such case a point for charge submitted by defendant, based on the assumption that the fact as to the date of the first entry of interest in plaintiff’s pass book, as testified by defendant’s witness, was correct, was properly refused, where the evidence was contradicted.</p> <p>6. In such case the court properly refused to charge that a claim for interest on deposits accruing more than six years before the beginning of the suit was barred by the statute of limitations, notwithstanding plaintiff’s statement avers that the interest is payable semiannually, such averment meaning that twice each year interest is to be calculated upon and added to this account.</p> <p>Contracts — Contract for services — Architect—Agreed compensation — Performance of additional work — Presumption as to rate — ■ Costs.</p> <p>1. Where one is retained by or enters into the employ of another to perform defined services of a personal nature, at a compensation expressly agreed upon, and, after the services have been performed or during the course of their execution, such person proceeds with work of a similar kind or enters upon the performance of other service of the same general character, relating to, connected with or growing out of the original employment, without any fresh contract or understanding as to a change in compensation, or without a distinct, unequivocal notice to his employer that he insists upon a different standard of remuneration, the standard for valuing these latter services is that which the parties fixed for themselves in the first instance; for, in the absence of a new agreement, express or implied, the presumption is that they intend the original rate of compensation to continue.</p> <p>8. In an action by an architect to recover a fee for services in remodeling a bank building, it appeared that he had made a written contract for the performance of architectural services in connection with the erection of an addition to the bank building at the rate of five per cent., upon the cost of the work; that during the progress of the work a decision was reached to remodel the interior of the old building, and plaintiff was instructed to perform the necessary services of an architect relating to this work. Plaintiff testified that there was no agreement as to compensation for his services in connection with remodeling the old building, but that he had told representatives of the defendant! that he expected to be paid for it, and for the trouble they were putting him to in the performance of that particular kind of work. There was no allegation that a new contract had been made or that plaintiff had expressly notified defendant as to the rate of compensation he would charge. Held, the rate fixed in the original contract must prevail, but a new trial was granted in order to determine the correct amount of the cost of the additional work, the costs to date to be divided equally between the litigants.</p>

<p>Appeal, No. 73, Oct. T., 1917, by plaintiff, from judgment of O. P. Allegheny Co., No. 544, July T., 1915, refusing to take off nonsuit in case of Edward J. Stubbs v. Kate M. Edwards.</p> <p>Trespass to recover damages for personal injuries. Before Coi-ien, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was the refusal to take off the nonsuit.</p>

<p>Negligence — Damages—Compensation for disfigurement or deformity — Mental suffering — Instruction to jury.</p> <p>1. In estimating damage? in the ease of a personal injury, where disfigurement or deformity of the person has occurred, the jury may take such fact into consideration, and allow for mental suffering which is the natural and necessary result of the physical injury.</p> <p>2. In the trial of an action for personal injuries sustained by a wife in consequence of a collision between the motorcycle, on which she was riding, and defendant’s trolley car, caused by the negligence of defendant, where it appeared that plaintiff’s face was disfigured as a result of the accident, leaving bad and permanent scars across her cheek and lip, the pourt made no error in charging the jury that the wife was entitled to recover for “the pain and suffering and the disfigurement or deformity, or whatever you may call it, brought about by this accident.”</p>

<p>Husband and wife — ■ Separation agreements — •Construction — Bower — Waiver of dower right by understanding at time of signing.</p> <p>1. In the absence of an express release of dower a widow’s right thereto cannot be prejudiced by a mere inference.</p> <p>2. Under a separation agreement entered into between a husband and a wife providing that certain payments should be made to the wife, that they should live apart, and that the wife would sign all proper releases and other deeds of conveyance, which her husband might at any time thereafter present to her for her signature for the release, lease, sale or transfer of any property belonging to him, the wife did not lose her right of dower, in the absence of an express provision releasing it.</p> <p>3. Where it appeared, however, that at the time of entering into the agreement, the wife was represented by an attorney, that he was familiar with the estate of her husband and knew of what property it consisted, and that she was advised by her attorney and knew that all she would ever get out of his estate would be the money and property secured to her under the agreement, and. executed the contract with that understanding, she could not after his death successfully assert a dower interest in his estate.</p> <p>4. In such a case the contention that a reconciliation between, the wife and her husband entitled her to dower wa§ without merit, where the lower court found as a fact that no reconciliation had been effected, and such finding had not been assigned as error. "</p> <p>5. In such case the fact that an attorney was permitted to testify as to confidential communications between himself and his client, was not ground for reversing the decree, where no objection to the evidence was made at the time the attorney was examined and no assignment of error complained of the admission of such evidence.</p>

<p>Sheriffs’ sales — Advertising—Notice to defendant — Failure to personally serve — Presence at sale — Act of Jan. IB, 1705,1 Smith’s Laws, 56, Sec. k-</p> <p>1. Exceptions to a sheriff’s sale, complaining that notice of the sale was not given to defendant as required by the Act of January 12, 1705, 1 Smith’s Laws 56, Section 4, are without merit, where it appears that the defendant had actual notice, was represented at the sale by an attorney of record, and where it does not appear how further notice could have added to the defendant’s information on the subject, or have conferred on him additional advantage.</p> <p>Practice, Supreme Court — Appeals—Time for talcing and perfecting appeals' — Act of May 19, 1897, P. L. 67 — Quashing appeal.</p> <p>2. An appeal may be taken at any time within six months from the entry of the decree, order or judgment appealed from, under the Act of May 19, 1897, P. L. 67, and must be. perfected within a reasonable time thereafter.</p> <p>3. An appeal is not perfected until the writ of certiorari issued by the appellate court has been lodged in the court from which the appeal is taken.</p> <p>4. A motion to quash an appeal will be granted where it appears that the decree appealed from was entered July 31, 1916, and the writ of certiorari was issued January 30, 1917, but was not filed in the court below until August 16, 1917, and that no notice of the appeal was given until that time.</p>

<p>Wills — Execution—Insufficiency—Failure to sign at end — Act of April 8,1838, P. L. &h9 — Vacation of probate.</p> <p>1. The Wills Act of April 8, 1883, P. L. 249, was intended to form a complete system, by which a posthumous disposition of property might be made.</p> <p>2. The purposes of the Act of 1833 were to secure accuracy in the transmission of the testator’s wishes, the authentication of the instrument transmitting them, the identification of the testator and certainty as to his completed testamentary purpose.</p> <p>3. Where a testator used a printed blank form for making his will, and inserted his name in the attestation clause and in that part of the blank to be signed by the subscribing witnesses, reading “Signed, sealed, published and declared by the above named P. Churchill” (the testator), etc., but did not sign opposite the seal, on the line designed for the testator’s signature, or elsewhere at the end of the paper, the will was not signed at the end thereof, as required by the Act of 1833, and was void.</p>

<p>Municipalities — Townships — Road supervisors — Authority to borrow money — Ultra vires — Taxation—Extraordinary emergencies —Burden of proof — Minutes of board — Supplementing minutes by parol evidence — Notice of meeting — Gonstitution, Art. IX, Sec. 10 —Act of June 28,1897, P. L. 19k.</p> <p>1. Aside from the taxing authority conferred upon them by statute, the financial resources of township supervisors are limited and they are without general power to borrow money on the credit of the township. An exception to this limitation, arising from necessity, exists however where, by reason of an extraordinary emergency or condition, such as a destructive flood, roads are rendered impassable and bridges destroyed and the current revenues from taxation are insufficient to defray the unusual expenses necessary for repairs and reconstruction.</p> <p>2. Where the road supervisors of a township had made a tax levy equivalent to ten mills, on each dollar of the valuation of property in the township, being the limit of taxation allowed by the Act of Tune 23, 1897, P. L. 194, but, owing to the fact that roads and bridges were rendered impassable by an extraordinary flood, the funds so provided were insufficient, the supervisors had authority to borrow money on a promissory note to pay for repairing the roads and placing them in passable condition, and in an action on a note given in renewal of the original note, and which fell due at a time when the revenues from taxation were sufficient to pay it, the contention that the action of the board was ultra vires and that the township was not liable was without merit.</p> <p>3. Where in such ease it appeared that the supervisors had not at the time of incurring the indebtedness made provision for an annual tax sufficient to pay interest and principal within thirty years, as provided by Art. IX, Sec. 10, of the Gonstitution, but where it further appeared that, following the emergency, a tax had been levied sufficient to pay the note out of existing revenues, it was not material that no definite amount was specifically apportioned out of the levy to the repayment of the note.</p> <p>4. The constitutional restriction was not intended to make municipalities dishonest, nor to prevent those who contract with them from collecting their just claims, but to cheek rash expenditure on credit, and to prevent loading the future with the results of present inconsiderate extravagance.</p> <p>5. In such case, the court made no error in refusing defendants’ point for charge to the effect that the burden was on plaintiff to prove the portion of the emergency work done on the highways and bridges, and that there was not in the hands of the board of supervisors sufficient funds from their tax levies, previous to the time of borrowing the money, to meet the emergency and restore the roads and bridges to a safe condition for travel; all that plaintiff was required to prove was that an emergency existed and that the funds were insufficient to meet it; and he was not obliged to see to or prove the proper application of the proceeds of the loan.</p> <p>6. Where in such case, the minutes of the supervisors stated that an additional levy of four and one-half mills road tax was levied, omitting the purpose of the levy, parol evidence was admissible to supply the deficiencies of the record of the meeting and explain or supplement them.</p> <p>7. Notice of meeting to raise funds to apply on contract for purchase. Will give notice of meeting to borrow money for that purpose.</p> <p>Practice — Supreme Court, Bule S7 — Bracheting charge.</p> <p>8. It is not good practice to bracket the parts of the charge assigned for error with pen and ink.</p>

<p>Municipalities — Townships—Promissory notes — Work done — Defenses — Want of consideration — Township supervisors’ authority to borrow money■ — Sufficiency of revenues — Honest mistake — Meetings — Notice of meetings — Evidence—Charge of court.</p> <p>1. Where in an action on a promissory note made by the supervisors of a township in payment for work done and material furnished, the defense was that the giving of the note was authorized at a meeting of the supervisors not legally called, that the amount was beyond the revenues of the township and no tax levy made to secure its payment, and that the note was without proper consideration, but where it appeared that the meeting of the supervisors had been called by the secretary “for the purpose of executing a note of $2,500” to the contractor who had performed work for the township it was not material that only two of the supervisors of the township attended the meeting, where it appeared that the third member had received a postal card notifying him of the meeting and of the business to be transacted but had mislaid it.</p> <p>2. Where in such case it appeared that the supervisors had levied .a tax of five and one-half mills, and that, upon the happening of an extraordinary flood, whereby roads and bridges were destroyed, an additional levy of four and one-half mills was made before the execution of the note in question, instructions to the jury are proper, to the effect that ,if the township supervisors honestly believed that the revenues so provided were sufficient to pay the note in question, it was not material that it afterwards appeared that they were mistaken in their judgment.</p> <p>3. Where in such case it appeared that contracts had been made by the supervisors for repairs to roads and bridges, and that after certain of the work had been done the contractor was Ordered to cease the work and was given the note in payment for the work which he had done, the trial judge made no error in excluding evidence offered by plaintiff to show that the contract had not been performed, in the absence of fraud or collusion between the plaintiff and the former supervisors of the township. Even though the contract was not fully completed, the supervisors had a right to compensate the contractor for the work which he had done and the note given for that purpose could not subsequently be defeated by alleging want of consideration.</p>

<p>Appeal, No. 170, Oct. T.,1917, by Birdella Hettler et al., from decree of O. 0. Allegheny Co., Jan. T., 1917, No. 168, dismissing exceptions to Trustee’s account in Estate of Mary Morton McKinney, Deceased.</p> <p>Exceptions to account of testamentary trustee.</p> <p>The facts appear from the following opinion by Over, P. J.:</p> <p>Mary Morton McKinney died testate February 18, 1896. In her will executed on the 1st of February, 1895, she made the following disposition of her estate:</p> <p>“Second. It is my will that all my property both real and personal of which I shall die possessed, or inherit after death, may remain intact and the income therefrom be used for the benefit of my children.</p> <p>“I hereby direct that my beloved husband James McKinney, act as trustee, who' shall take charge and have full control and care of the same during his life.</p> <p>“I also direct that when my estate is.placed in his hands, by virtue of this will, he is to invest it in good rentable real estate, exercising his best judgment as to the quality and character of the same, and shall collect the income from the property regularly and disburse it for the benefit of my children.</p> <p>“It is my will that each child shall have the advantage of a good education, and if any of my children desire to pursue any legitimate calling in life for which a special preparation and education is desired or required, it is-my will that such education and advantage of preparation shall be afforded them as far as the income from the estate will permit. It is my will that this arrangement shall continue during the natural livés of all my children.</p> <p>“When all the children are deceased, the estate is to be divided equally among their heirs.</p> <p>“Should any child die without issue, the portion of such child shall be divided equally between the direct heirs of the other children.</p> <p>“In case all the children die without issue during the life of my husband, James McKinney, he shall have the full benefit of the income during his life, and at his death the entire estate is to be divided equally among my nephews and nieces.</p> <p>“In case of the death of the trustee, James McKinney, before the provisions of this will are carried out, his successor as trustee shall deal equitably with all my children in the distribution of this estate.</p> <p>“It is my will that my husband, James McKinney, shall during his life receive a benefit from the income of this estate equally with that of each of my children.</p> <p>■ “I hereby direct that my husband, James McKinney, shall act as guardian of all my children during the years of their minority and as executor of this will.</p> <p>“Also as trustee of my estate, the said James McKinney is vested with authority to appoint a suitable person to succeed himself as trustee in case of his own death or disability, such person to take charge of the estate and carry out the stipulations of this will, and in that case the proper legal'security is to be given for the faithful performance of the same.”</p> <p>Her husband and seven children, all minors, survived her, and five of them who are over twenty-one years of age are still living. Her husband died January 19,1911. Prior to his death he declined to act as trustee^ assigned his interest in the estate to his children, and the accountant, the Safe Deposit & Trust Company, was appointed trustee.</p> <p>The corpus accounted for here is the proceeds of the sale of testatrix’s real estate, and the question is whether it should be distributed to the children of the testatrix.</p> <p>Counsel for the children contend that under the will they took an estate in fee tail, which under the Act of 1855, became a fee simple; whilst counsel for the trustee contends that they took but a life estate, and that there is an active trust which must be continued during the life of all the children to protect the remaindermen.</p> <p>This court held in McKinney’s Est., 52 P. L. J. 321, that a fee vested in the children, and there distributed rents accruing from the interest of one of the children after her death, unmarried, intestate and without issue, to her father. No appeal was taken from this decree. It, however, is not res adjudicata as to the construction of the will, but only as to the fund there distributed: Kellerman’s Est., 242 Pa. 3.</p> <p>Testatrix’s intention evidently was to give her husband and children the income of her estate during their lives, and after their death the corpus should vest in their issue or heirs, and to give effect to this intention she gave her estate to her husband as trustee with power to appoint a successor. But if under this will testatrix’s children took a legal estate for life, and upon their death the devises were either to their heirs generally, or to the heirs of their bodies, under the rule in Shelley’s Case, a fee tail vested in them subject to a trust for their and their father’s benefit during his lifetime, which under the Act of April 27,1855, P. L. 368, became a fee. But their estates for life are only equitable, the legal title being in the trustee, whilst the estates in remainder are contingent legal estates, and it is well settled that the rule in Shelley’s Case does not apply, unless the estates for life and in remainder are of the same nature: Eife v. Geyer, 59 Pa. 393; Little v. Wilcox, 119 Pa. 439. The devises over then upon the death of all the children to their heirs or issue or the testatrix’s nephews and nieces are effective, and as the persons who will take cannot now be ascertained, the trust is active and the corpus must be retained by the trustee to protect the remainder-men, the income to be paid to testatrix’s surviving children : Kuntzleman’s Est., 136 Pa. 142; Seitzinger’s Est., 170 Pa. 500.</p> <p>The corpus included in this account, $63,989.25, is the proceeds of sale of testatrix’s undivided one-tenth interest in real estate in which the trustee joined under order of this court, with the other parties interested, and the accountant claims credit for $1,317.16, two per cent, commissions paid by it to the agent who negotiated the sale. In the first exception it is alleged that this credit should not be allowed.</p> <p>The trustee filed a first and partial account in which credit for this payment was claimed at No. 471, September Term, 1913, no exceptions were filed and the account was.confirmed absolutely, and as this account embraces all the items of debit and credit in the former account, the credit is also claimed here. But as the credit has by the confirmation of the former account been allowed by the court, the question is res judicata as to all of the ex-ceptants who were then sui juris. But it is alleged that some were not, and that the trustee was also their guardian, and under these facts, as to the minor children, the decree would not be res judicata. All the other parties in interest had agreed to pay two per cent, commissions to the agent negotiating the sale, and although there does not appear to have been any express agreement by the trustee to pay commissions, it considered itself bound by the agreement. The estate was greatly benefited by the sale and services rendered by the agent. Equitably it should contribute to the necessary expenses, and as the amount paid was reasonable, the payment is approved by the court, and this exception is dismissed.</p> <p>The will directed the trustee to invest the money of the estate in good rentable real estate, but instead of so investing it, the accountant made investments in mortgages and bonds bearing five to five and one-half per cent, interest, and in the second exception it is claimed that the trustee should be charged with six per cent, interest on the amount invested, making a surcharge of $2,410.55. It appears from the evidence that the trustee could not have invested in rentable real estate yielding six per cent., and it is clear that the exceptants have not suffered any loss by the investments made, as the income from the estate since the real estate was sold has been increased from one thousand dollars to three thousand dollars per annum. This exception is without merit and is therefore dismissed.</p> <p>As five per cent, commissions on the income accounted for is reasonable, the third exception is also1 dismissed.</p> <p>The lower court dismissed the exceptions. Except-ants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 44, Oct. T., 1917, by plaintiffs, from judgment of O. P. Allegheny Co., April T., 1915, No. 2235, for defendants, in case of Thomas Denniston, W. L. Denniston, Helen M. Dennis-ton and Junius D. Houston v. William T. Pierce, Joseph Audley Pierce and Andrew Craig Pierce.</p> <p>Ejectment for an undivided interest in real estate. Before Shaper, P. J.</p> <p>• From the record it appeared that Joseph Pierce, of McKeesport, Pa., died testate on November 3,1903. His last will provided, inter alia:</p> <p>“Fifth. — All the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath to my three sons, William T. Pierce, Joseph Audley Pierce and Andrew Craig Pierce, and to their heirs in trust the following purposes, and with the following powers and limitations :</p> <p>“1st. — To manage, control, improve, lease and demise the samé in such manner, for such terms, and on such x*entals as they, or a majority of them, may think-proper.</p> <p>“2d. — To expend so much of the income or principal thereof as may be necessary in their discretion or in the discretion of a majority of them, in the making of improvements in and additions to the National Hotel property, and the property on the corner of Walnut Street and Tenth Avenue.</p> <p>“3d. — To pay all taxes against the property herein above bequeathed and devised, and for all repairs necessary to put and keep the same in good order and repair.</p> <p>“1th. — Out of the outcome of my said property to pay to my said wife Henrietta the sum of One Thousand Dollars in every year during her lifetime, payable monthly, Provided, however, that if in any year the income should not amount to the annual sum herein bequeathed, the said trustees, or a majority of them, shall have the right to pay to her out of the principal such amount as shall, with the income, equal the sum of One Thousand Dollars.</p> <p>“5th. — To pay to or for the benefit of my son Andrew Oraig Pierce for his education in such profession as he may choose, and for his maintenance and support during his education, annually, such amount as may be necessary for that purpose in the opinion of my sons William T. and Joseph A. Pierce. And when my son Andrew has completed his education and entered upon the practice of his profession, then to pay to my said son Andrew the sum of One Thousand Dollars out of the principal as soon as thé same can be conveniently realized.</p> <p>“6th. — I direct that the trust hereby created shall not terminate during the lifetime of my said wife. After her death the trust may be terminated at any time by the joint action of any two of the said trustees or by the survivor in case two of the said trustees shall have died.; upon the death of all the trustees the trust shall terminate; upon the termination of said trust I direct that all the rest and residue of my estate then unexpended and undivided shall be divided among my said three sons equally their heirs and assigns in fee simple and absolutely, the child or children of any deceased child to take the share which the parent if living would have taken, Provided, however, that until the trust shall have been terminated neither of my sons shall have the power to sell, assign, transfer, convey, or encumber his interest in the principal of said estate or in the income thereof, or to anticipate the same in any manner, and his interest in said estate shall not be liable in any manner for his debts.</p> <p>“7th. — I direct that neither the National Hotel property ......nor the premises situate on the corner of Walnut Street and Tenth Avenue, McKeesport,......shall be sold during the lifetime of my wife; but with the exception of these properties the said trustees or a majority of them and the survivors or survivor of them shall have power to sell any part of and all the rest and residue of my estate and the same to convey from time to time to the purchaser free and discharged from all trusts, and without liability on the part of the purchaser to see to the application of the purchase-money, and to divide and distribute the proceeds of sale thereof among them my said sons in equal portions, to be held and enjoyed by them and their heirs, free from all trusts.</p> <p>“8th. — During the continuation of the trust hereby created, and after payment to my wife Henrietta, of the annuity hereby charged upon my said estate, and alfter payment to my son Andrew Craig Pierce of the amount herein provided to be paid during his education, and after payment of all other expenses herein provided' for, I direct that the net income shall be divided equally among my three sons.”</p> <p>The will further authorizes the trustees to select one of their number to act as managing trustee or attorney in fact for the others, and also provides that neither trustee shall be liable except for his own wilful default. The trustees as such took and have since retained possession of the property. ' In 1909, William T. Pierce gave his individual mortgage oh a one-third interest in the hotel property; and by foreclosure proceedings thereon the plaintiffs in 1914 purchased such interest at sheriff’s sale. This action of ejectment was brought to recover possession of the undivided interest so acquired.</p> <p>The special provisions for Andrew Craig Pierce contained in item five of paragraph five of the will were paid; but the widow was living when the action was brought and entitled to her annuity, which the net income from the property was much more than sufficient to pay. The plaintiffs claimed as purchasers of a portion of the interest of William T. Pierce. There being no disputed facts, the court below entered judgment for the defendants on the pleadings, pursuant to the Act of May 7,1915, P. L. 887. Plaintiffs appealed.</p> <p>Error assigned was the judgment of the court.</p> <p>The devise to the three sons was a gift subject to a charge, not a gift upon a trust: Lang v. Everling, 3 Misc. (N. Y.) 530, 23 N. Y. Suppl. 329; King v. Denison, 1 Ves. & B. 260; Dawson v. Clark, 15 Ves. 409; Hughes v. Evans, 13 Simon 496; Saltmarsh v. Barrett, 29 Beav. 474; Barrs v. Fewkes, 2 Hem. & M. 60.</p> <p>Whether a devise creates an estate in the devisees, subject to a charge or a trust to pay legacies, is determined not by the form of expression creating the estate, but by the substantial estate created: Thornton v. Krepps, 37 Pa. 391; Hahn v. Hutchinson, 159 Pa. 133.</p> <p>If the provision for the wife is held to be a charge and not a trust, the restrictions as to alienation and liability for debts are invalid: Keyser’s App., 57 Pa. 236; Kaufman v. Burgert, 195 Pa. 274; Potter v. Couch, 141 U. S. 296; Kepple’s App., 53 Pa. 211; Ingersoll’s App., 86 Pa. 240; Kessner v. Phillips, 189 Mo. 515; Hutchinson v. Maxwell, 57 L. R. A. 384; Dodson v. Ball, 60 Pa. 492.</p> <p>Under the will of Joseph Pierce there was created a valid, active trust: Xander v. Easton Trust Co., 217 Pa. 485; Spring’s Est., 216 Pa. 529; Lewis’ Est, 231 Pa. 60; Siegwarth’s Est, 226 Pa. 591; Minnich’s Est, 206 Pa. 405; Huber’s App, 80 Pa. 348.</p>

<p>Contracts — Breach—Sale of goods — Title—Place of delivery— Evidence — Carrier—Agency—Meat—■ Guaranty — Freshness — Absence of. opportunity to inspect — Rejection—Rescission—Suit by buyer to recover price paid — Case for jury.</p> <p>1. The general rule is that a delivery of goods to a carrier in conformity to a contract of sale is a delivery to the vendee sufficient to pass'title to the goods, and the carrier at once becomes the agent of the vendee, to whom the latter must look for resulting damages while the goods are in transit. Where, however, the contract requires delivery at the place of destination, the title remains in the vendor until that point is reached and the risks of transportation are assumed by him.</p> <p>2. In the absence of circumstances indicating a contrary intent, delivery of meat to a common carrier in good condition, properly packed and refrigerate!, in view of the distance it must travel, with proper instructions as to re-refrigeration if needed in the course of transit, passes title and the shipper’s duty is fully performed and his responsibility ends on such delivery.</p> <p>3. Even though title to a shipment of goods may pass upon delivery to the carrier, the contract is still subject to rescission up to the time of delivery and inspection, unless an opportunity to inspect was given before delivery.</p> <p>4. Where the facts are not in dispute, the question as to the place of delivery and when title passes is for the court.</p> <p>5. A guarantee that meat, the subject of a contract of sale, shall be fresh, contemplates an opportunity on the part of the purchaser to inspect the meat before accepting it to discover whether or not the shipment is in accordance with the terms of the guarantee, and is evidence that the place of delivery was intended to be the point of destination, where the condition of the meat could be ascertained.</p> <p>6. Plaintiff ordered from defendant certain beef “guaranteed fresh,” to be shipped to plaintiff c. a. f. .at Pittsburgh, Pa. Defendant packed the meat at its packing house in Kansas City, Kansas, consigned it to its own order and sent the bill of lading with draft attached to a Pittsburgh bank, which draft upon presentation to plaintiff was paid without waiting for the arrival of th$ meat. There was evidence that “guaranteed fresh” meant that the meat should be good, wholesome and in a condition fit for sale as food. When the meat arrived it was sent to plaintiff’s siding by defendant, and upon inspection was discovered to be unfit for human consumption. Plaintiff notified defendant of its refusal to accept the consignment. In an action for the recovery of the purchase-price paid, the freight charges and cost of icing, a verdict for the full amount of the claim was recovered. Held, the verdict will be sustained.</p>

<p>Appeal, No. 76, Oct. T., 1917, by plaintiff, from decree of O. P. Allegheny Co., July T., 1914, No. 286, dismissing bill in case of George R. West* erman v. The Pennsylvania Salt Manufacturing Company.</p> <p>Bill in equity for an injunction and accounting. Before Shafer, P. J. '</p> <p>The opinion of the Supreme Court states the case. '</p> <p>The court below dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were the dismissal of plaintiff’s exceptions to various findings of fact and law and the decree of the court.</p> <p>A grantee of coal has the right to mine and remove the coal purchased, and while in good faith so doing, he has the right to transport other coal owned by him through the entries made in the first coal.</p> <p>When he has completed or abandoned coal first purchased, his right to use entries therein as ways for transporting other coal, ceases: Lillibridge v. Lackawanna Coal Co., 143 Pa. 293; Webber v. Vogel, 189 Pa. 156; Farrar v. Pittsburgh & Eastern Coal Co., 28 Pa. Superior Ct. 280; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.</p> <p>Plaintiff was not estopped from objecting to defendant’s use of these entries by reason either of the record or of his acts: Waters’ App., 35 Pa. 523; Orr v. Mercer Co. Mut. Fire Insurance Co., 114 Pa. 387; Hepburn v. McDowell, 17 S. & R. 383; Knouff v. Thompson, 16 Pa. 357; Eifert v. Lytle, 172 Pa. 356; McKnight v. Bell, 135 Pa. 358; Hill v. Epley, 35 Pa. 344.</p>

<p>Appeal, No. 39, Oct. T., 1917, by defendant, from judgment of O. P. Allegheny Go., April T., 1914, No. 1640, on verdict for plaintiff in case of M. E. Bowers v. Great Eastern Casualty Company.</p> <p>Assumpsit upon a policy of accident insurance. Before Evans, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $5,948.33, upon which judgment was entered. Defendant appealed.</p> <p>Errors assigned were the charge of the court, the refusal of binding instructions for defendant and of defendant’s motion for judgment n. o. v.</p>

<p>Wills — Testamentary intent — Burden of proof — Parol evidence— Conflicting evidence — Erasure—Alteration—Time of making.</p> <p>1. Where a writing alleged to he testamentary in character is offered for probate and does not clearly disclose testamentary intent, the burden of proving such intent is upon the proponents of the will, where the validity thereof is questioned.</p> <p>2. Where the paper offered showed plainly the fact of an alteration which was material, as it affected the words upon the paper which were essential to its validity as a will, and proponents testified that they saw testator write the paper and neither of them saw him make any alteration, and there was testimony to show that the alteration was made sometime afterwards, and this testimony was strengthened by an inspection of the paper itself, the time at which the alteration was made was for the jury.</p> <p>3. Where in such case the alleged will consisted of a list of various items of property and. opposite one of the smaller items were the words “For Ev and Anna,” and such words appeared to have been written over an erasure and were the only words in the will which proponents claimed showed testamentary intent, a finding that the paper was in testator’s handwriting, but that he did not intend that it should take effect as his will was justified, and judgment was properly entered for the contestant.</p> <p>4. There was nothing to show what property, if any, was to be taken, or when.</p>

<p>Wills — Testamentary capacity — Insane delusions — Exaggerated idea of estate — Evidence—Insufficiency—Issue devisavit vel non— Refusal.</p> <p>1. A delusion exists only where there is no basis in fact for the belief, and a testator cannot he said to he laboring under a delusion ' merely because he has an exaggerated idea of the amount of his estate, which in fact is extensive.</p> <p>2. The fact that testator, a man seventy years of age and possessing an estate valued at $600,000, was under the mistaken impression that the value of his investments was much greater than that amount, is not in itself sufficient evidence that testator was laboring under insane delusions, especially where it appeared that until the time of his death he was in full strength and vigor of mind and body, and the will itself furnished no evidence of any delusion, hut provided for an equitable distribution of testator’s property among his children and grandchildren; and in such case an issue devisavit vel non was properly refused.</p>

<p>Decedents’ estates — Wages for domestic services and nursing — ■ Presumption of payment — Rebuttal evidence — Court and jury — Receipt — Release—Legal effect — Construction — Declarations— Consideration.</p> <p>1. Wages for domestic service or nursing are presumed to be paid at stated periods, and when a claim, extending over any considerable period of time, is presented against a decedent’s estate, the burden is upon the claimant to rebut the presumption by affirmative evidence. Loose declarations of the decedent whose estate is sought to be charged are not sufficient to support such a claim.</p> <p>2. In an action to recover wages alleged to be due for domestic service and nursing, the question whether the evidence submitted by the claimant is sufficient to rebut the presumption of payment, is primarily for the court.</p> <p>3. Although a receipt is always open to explanation it is prima facie evidence of payment and settlement and will not be set aside except for weighty reasons and by proof clear and satisfactory, especially after a lapse of years.</p> <p>4. The rule of construction that words used in a release should not be construed to extend beyond the express consideration mentioned, or to operate as a release of indebtedness the parties apparently did not intend, can have no application where the very language used by the parties excludes its use.</p> <p>5. In an action against the executrix of a decedent’s estate to recover for personal services and nursing of decedent for a period of eighteen years, from 1890 to 1908, defendant offered in evidence a receipt dated 1906, signed by claimant and deceased, and providing, inter alia, “this being a full, and final settlement between us up to March 1, 1906, the said [deceased] on March 1, 1906, owing the said [claimant] nothing and the said [claimant] on March 1, 1906, owing to said [decedent]” a certain mortgage obligation. For the purpose of overcoming the effect of the receipt plaintiff offered evidence of declarations by decedent following the date of the receipt to the effect that plaintiff would be compensated in his will. Held, (1) such declarations may apply to the period succeeding the receipt as well as before, and were not necessarily inconsistent with a view that the receipt was in full settlement of all accounts to that date, (2) the burden was on plaintiff in the first instance to overcome the presumption of payment at usual or regular intervals, (3) the receipt indicated that the parties had in mind a general settlement of all accounts, and (4) the court properly charged that there could be no recovery for services before its date.</p>

<p>Appeal, No. 177, Oct. T., 1917, by J. Gilmore Fletcher, from decree of O. C. Allegheny Co., March T., 1917, No. 219, refusing trustee’s claim for additional compensation in Estate of Thomas B. Biter, deceased.</p> <p>Exceptions to adjudication.</p> <p>Upon the audit of the first account of the trustees of the estate of Thomas B. Biter, deceased, Miller, J., filed the following opinion:</p> <p>The question is, a claim for compensation by a trustee who had been sole executor and received compensation; the allegation is that by reason of extraordinary circumstances and extraordinary labors, the trust property has been largely increased.</p> <p>At the first account filed by Mr. Fletcher, sole executor of the estate of the decedent, there was awarded to the widow $291,183.68; to the son $715,778.86; to the executor and his cotrustee, the Fidelity Title & Trust Company, $812,250, the latter consisting of 5,615 shares of the Biter-Conley Manufacturing Company stock; compensation was allowed to the executor in the sum of $210,000; the entire assets with which the executor was charged was $3,619,297.63; the stock devised by the testator in the first paragraph of the will to the trustees is described as a controlling interest in the Biter-Conley Manufacturing Company, there being ten thousand shares, the said trust stock to be held intact so that the business may be continued, the dividends or income to be paid therefrom first to testator’s wife and, after her death, to his son, Joseph; then absolutely to Joseph’s children, if any; in case of the death of Joseph without issue, to his appointee by will; with power to sell a portion or the whole of such trust stock, if deemed advantageous, with the consent of the life tenants; the proceeds to be invested in safe securities.</p> <p>Of the remaining stock in the Biter-Conley Manufacturing Company, 3,384 shares were owned by five others, inter alios, who were hostile to the majority interest; in 1908 these shares were purchased through Mr. Fletcher for the Eiter-Conley Company for $507,600, or $150 per share; the purchase-price and the large credit balance were paid out of earnings of the company.</p> <p>Mr. Fletcher became vice-president of the company in 1908, and shortly thereafter, president, receiving in that capacity a salary of $12,000 per year; he was the owner of two thousand shares of stock; no dividends were paid, the earnings being used in betterments and paying back the money Avhich the cestui que trustents advanced in the purchase of the outstanding stock and meeting running expenses. The finances of the company at times were difficult; Mr. Fletcher personally loaned the company $200,000 to tide over its business affairs; at one time during the lean years of business a demand was made for payment within ninety days of $400,000 of indebtedness to one of the banks; two other banking institutions, having confidence in Fletcher’s management, took care of this loan to the extent of $500,000 and gave the management the benefit of its credits. The war and changed conditions were favorable factors in increasing the prosperity of the company and its intrinsic value.</p> <p>In the spring of 1916, at the suggestion of a third party to Mr. Fletcher, this party evidently representing the prospective purchaser, negotiations were entered into for the sale of the entire Riter-Conley Manufacturing Company’s plant to the Marshall-McClintic -Foundry Company; these negotiations began with an offer of $2,-500,000; they continued from February to April 12th, when the sale was closed by the transfer of the entire ten thousand shares of capital stock, including all the property and assets of the company for $3,113,698, or $311 per share; in addition, the purchaser assumed obligations of the Riter-Conley Manufacturing Company of over $700,000, and presumptively obtained its bills receivable and cash on hand. The profit on the trust stock by the sale was approximately $906,000; the sale was cash; the whole purchase-price of the trust stock is invested in carefully selected standard securities; the income from the trust stock, approximately, is $70,000 per year, payable to Joseph Riter.</p> <p>The property was skillfully managed by Mr. Fletcher as its president; the sale was primarily the result of his business judgment and skill; he was ably aided by the cotrustee through its president.</p> <p>For effecting this sale and conserving the trust estate during this period, increasing the corpus thereof to the amount indicated, Mr. Fletcher asks for special compensation of $75,000, payable out of corpus; the life tenant joins in the request, preferring to have it paid out of corpus, but would not object to having it paid out of the income. The cotrustee, who was not executor, offered no testimony in opposition to this special claim but places itself on record at the hearing, and by brief of its counsel, that any allowance of this claim is not a waiver of the cotrustee’s right to compensation on income as accounted for and on corpus when the trust terminates, and the contention raises the question that the claim is barred by the act of assembly and that the facts are not of such an extraordinary and special kind as to warrant a departure from the rule or bring it within any of the exceptions, where, by adjudicated cases, special claims in this double capacity have been allowed.</p> <p>The Act of March 17, 1864, P. L. 53, provides: “In all cases where the same person shall, under a will, fulfill the duties of executor and trustee, it shall not be lawful for such person to receive or charge more than one commission upon any sum of money coming into or passing through his hands or held by him for the benefit of other parties; and such single commission shall be deemed a full compensation for his services in the double capacity of executor and trustee, provided, that any such trustee shall be allowed to retain a reasonable commission on the interest he may receive from any sum held by him in trust as aforesaid.” A careful examination has been made of all the authorities submitted by both sides in support of and against the contention that for extraordinary and special services producing an extraordinary result, exceptions arise to the foregoing rule which justify the court in awarding special compensation to a trustee who has already been compensated as executor.</p> <p>Hosier’s Est., 161 Pa. 457, was a case not arising out of the double capacity in the same person of executorship and subsequent trusteeship. While it is there indicated that in extraordinary circumstances the corpus of a trust estate may be liable to compensation, .the case has no application to the question at bar, for the reason that it is divorced from the element of a prior executorship where compensation had'been allowed. Thouron’s Est., 182 Pa. 126, is also a case of trusteeship alone, after the estate had been duly administered upon by a different fiduciary. It there appears that the trustee filed a first account in 1882, claiming no compensation; a second in 1891, claiming no compensation; a third in 1892, claiming no compensation, and a fourth, the account in question, in 1896, covering a period of four years since the former account in which, on account of services arising out of special labor in converting unproductive real estate and thus increasing the capital, a request for some compensation was allowed. While the court comments upon the special services rendered and affirms the allowance made, it must be observed that the Act of 1864 was not in question, and that whatever allowance was made on account of compensation necessarily was credited against the final charge when the trust terminated. It is manifest, therefore, that the case in its facts and in its conclusions is not authority for an exception under the Act of 1864. So also in Penn-Gaskell’s Est., No. 1, 208 Pa. 342, there was no double capacity of executor and trusteeship; the simple question was whether a commission should be allowed a trustee presently in the sale of real estate under the Price Act, authorized by the court, the opinion stating: “The rule, therefore, is that commissions on the principal of a trust estate will not be allowed except where the fund is in course of distribution. While this rule is one of general application, it is not a fixed and unvarying one, and will be departed from, as in Thouron’s Est., 182 Pa. 126, where the circumstances are unusual, the trust of long duration, and when the fund has been largely increased by the skillful management of the trustee. The rule, however, is such a salutary one that it should be departed from only in exceptional cases.” In Davidson’s Est. (No. 2), 204 Pa. 381, again not applicable as to the facts so far as the double office is concerned, yet clearly applicable on principle, it is distinctly decided that an executor is not entitled to commission on enhanced value of stocks and other investments made with money on which commissions had been charged and allowed in a prior account. Harrison’s Est., 217 Pa. 207, also referred to by claimant, merely states the well-recognized doctrine that compensation is based upon services and labor performed and not upon any rate or percentage as a fixed rule,- that the rate or percentage may be a convenient method of arriving at compensation and that a general amount stated for compensation may be preferable to a rate of commission. The decision distinctly refused compensation on capitalized ground rents in the account there filed, indicating clearly that compensation, if allowed at all, must be at the close of the trust; here again, there is no question of a prior executorship in the same person.</p> <p>On the other hand, the claimant has authority for his contention in Kerrigan’s Est., 36 Pa. O. 0. 57, where the Orphans’ Court of Philadelphia allowed compensation to a trustee who had been executor, by reason of the special circumstances and his particular skill in effecting an advantageous sale of the trust stock. The facts were that the decedent was a member of a firm carrying on an industrial business; after his death a limited partnership was, formed which took over the business; the trustee received for the purposes of the trust three hundred shares of the par value of one hundred dollars in this limited partnership, and he was a manager therein; subsequently what the court states was the “psychological moment,” he prudently sold this stock at two hundred dollars per share, increasing the principal thirty thousand dollars, claimed and was allowed compensation of five per cent, on the amount. It will be observed that while the trustee was a manager in the limited partnership there is nothing to indicate that he was otherwise interested therein or that he received compensation in any executive office in the partnership, two factors which have a most important bearing upon the contention here. For, it must be remembered that Mr. Fletcher was not only president of the Riter-Conley Company at the salary of $12,000 per year and therefore vitally interested in the business success of the concern under his management, but that he was the owner of two thousand shares of its capital stock, one-fifth of the whole, and that therefore what he did, and in this case most efficiently did, was largely his duty as the president of the company, and was necessarily influenced by the preservation of his own property to the extent of one-fifth ownership therein.</p> <p>When the allowance of $240,000 was made to him upon the filing and audit of his executor’s account it was recognized that this very large compensation far exceeded, was almost double in fact, the maximum compensation allowed to executors, based upon five per cent, of all the assets received by them, to wit: $3,649,297.62. Irrespective of the fact that the widow and son, the life tenants, made no objection to this large charge, it could not have been permitted in view of the fact that the ultimate remaindermen of this estate are unknown and were not represented, had this act of assembly not been in mind, which barred him from claiming compensation hereafter as trustee upon the corpus of the trust estate.</p> <p>Therefore, granted, that he performed most valuable services, whereby this trust property has very materially enhanced in value, and that if he were in any other position, excepting the one of prior executor and subsequent trustee, he would be entitled as agent or otherwise to compensation for effecting this sale, yet in view of the cogent facts that he was abundantly compensated in his executorship account necessarily covering future administration ; that he was the executive officer, under high salary, of the company, which as a whole profited by this sale; and that in making the sale he profited personally in the enhanced price of his individual stock; it cannot be said that his services and labor under these facts are of such .i special' and extraordinary kind as to bring his claim away from the bar of the Act of 1864; for these reasons it must be refused.</p> <p>Further facts appear from the following opinion by Miller, J., sur exceptions to the decree of the auditing judge:</p> <p>Without enlarging on the opinion of the trial judge whose general conclusions are affirmed it is pertinent to note that in addition to claimant’s large compensation as executor, allowed in view of the bar to future compensation as trustee; to his individual ownership of the stock for which he profited in the enhanced sale, to his annual compensation of $12,000 per year as president he received from the company the sum of $50,000 for special services during the same period.</p> <p>It is pertinent further to note that while the statement in the opinion that the compensation allowed the claimant as executor was almost double the maximum compensation allowed fiduciaries generally is not exact if the percentage be arrived at by dividing the total assets into the commissions making it more nearly 6.57 % yet the claimant admits that the executor’s compensation exceeded 10% and maybe 12% of the amount distributed.</p> <p>What he there received as executor and in addition received as executive officer, owner of stock and for special services from the company whose management was controlled by this trust stock excluding his additional compensation as executor of Mrs. Biter’s estate, much of which was in this company, the services for which were performed at the same time, all demonstrate that under the facts and the law he cannot be allowed further compensation out of the corpus of this trust estate.</p> <p>The auditing judge refused the claim for additional compensation. The court in banc dismissed exceptions to the decree. J. Gilmore Fletcher appealed.</p> <p>Error assigned, among others, was in dismissing exceptions to the decree of the auditing judge.</p>

<p>Appeal, No. 23, Oct. T., 1916, by plaintiff, from tbe judgment of 0. P. Allegheny Co., April T., 1914, No. 1261, refusing to take off compulsory nonsuit in the case of Marianna Ferrick v. Baltimore & Ohio Railroad Company.</p> <p>Trespass for death of plaintiff’s husband.</p> <p>The facts appear from the following opinion by Carnahan, J.:</p> <p>The plaintiff in her statement complains that her husband, being a passenger for hire on a train operated by the defendant company, was negligently carried beyond his place of destination and put off the train at an unsafe and dangerous place for passengers to alight; that in consequence thereof, he was compelled to cross railroad tracks in order to reach his proper station and that before he “reached the road,” he was negligently struck by a freight train and received injuries thereby which caused his death the next day.</p> <p>At the trial, it appeared that he was a passenger on a train operated by the defendant company, his ticket calling for Bruceton station as his place of destination. The train stopped at Bruceton station. His wife, who was at the station to meet him, saw him at the doorway of one of the cars, but he did not get off. Her evidence indicated that the stop was long enough to enable him to get off but she said he did not get off because of the starting of the train. There was no evidence as to where he did get off, nor as to the circumstances under which he left the train. Of course, it follows that there was no evidence that he was put off against his consent or protest, at “an unsafe and dangerous place.”</p> <p>It did not appear that he crossed tracks in order to reach a “road.” On the contrary he seems to have walked back towards Bruceton station, alongside of or on the main track of this railroad company. He was seen walking along a path close to the track, perhaps a mile beyond Bruceton. It was not dark then, but was between five and sis o’clock of an evening in January. Not long after he was so seen, the engineer of a moving freight train saw the body of a man lying in front of his train, five car lengths ahead, with his head on a rail of the main track on which the train was moving and his body between the rail and a siding. The engineer sounded his whistle and put on his emergency brake but was unable to stop his train in time to avoid a collision. The pilot of the engine struck the man and turned his body over several times. This man was the plaintiff’s husband; and the point where he was lying and was struck was somewhere between where he had been seen walking alongside of the track and Bruceton station. It was about 5:45 p. m. There was no evidence that he had been struck by any other engine or train. He was taken to a hospital at Washington, Pennsylvania, where he died shortly after.</p> <p>Upon consideration of all the evidence submitted it did not appear that the defendant company had been guilty of any negligence which caused the death. A motion for a compulsory nonsuit was therefore granted.</p> <p>We see no reason now for taking off this nonsuit.</p> <p>■ The lower court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing to take off the nonsuit.</p>

<p>Negligence — Municipalities—First class townships — Sidewalks— Defects — Pedestrian—Fall-—Safer route — Contributory negligence - —Case for jury.</p> <p>In an action by a pedestrian against a township of the first class to recover for personal injuries sustained in a fall occasioned by admitted defects in a sidewalk, the question of plaintiff’s contributory negligence was for the jury and a verdict and judgment for plaintiff ill be sustained where it appeared that the plaintiff was a school teacher, that the boardwalk on which she fell was the route usually used to and from school where she taught, and althou h there was a safer route, there was testimony that she could not reach it on account of the mud.</p>

<p>Equity — Equity practice — Injunction — Auditor general — Statutes — Corporations, etc., with money on deposit for long time — Es-cheat- — Requirement to file reports — Bill to enjoin — Premature issues — Act of June 7, 1915, P. L. 878 — Supreme Court practice.</p> <p>1. The fact that the constant furnishing of detailed reports to the Federal and several state governments has become a very considerable financial and clerical burden to corporations, is alone a sufficient consideration to give these concerns and others so affected the right to question at once the validity of all acts of assembly placing such obligations upon them. While, in the exercise of its right of visitation, the state has power to compel corporations to render it reports, it cannot do this for the avowed purpose of enabling one of its officials to do something which the Constitution forbids, or even to accomplish a proper end in a manner prohibited by the organic law.</p> <p>2. The Act of June 7,1915, P. L. 878, requires reports to be made to the auditor general from persons and corporations having money on deposit or property in their possession for a long period of time belonging to other persons, and also requires reports from every corporation of dividends or profits declared but not paid. Certain corporations, from whom reports were demanded by the auditor general, filed bills in equity praying that the act be declared invalid as violating several mandates of both the Federal and State Constitutions. Upon demurrer the bills were dismissed on the ground that the issues were raised prematurely, and that the court would not enjoin preliminary steps taken for the purpose of discovering the whereabouts of property so circumstanced as reasonably to raise the presumption that it was liable to escheat. Upon appeal, held that the bills were improperly dismissed and the decrees were reversed and the bills reinstated that the issues raised might be determined by the court below.</p> <p>3. The Supreme Court will not pass upon the effect of an amendatory statute not considered in the court below and which was enacted after the action was instituted under the prior statute.</p>

<p>Appeal, No. 46, Oct. T., 1917, by Nellie Aiken Graver, from decree of O. P. Allegheny Co., July T., 1916, No. 2088, refusing petition in matter of the petition of Nellie Aiken Graver to be decreed a feme sole trader.</p> <p>Petition to be decreed a feme sole trader. Before Reid, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the petition. Petitioner appealed.</p> <p>Error assigned, among others, was in dismissing the petition.</p> <p>While the Act of May 28,1915, P. L. 639, does not provide for an appeal, the right of appeal existsAppeal of the Commissioners of Northampton County, 57 Pa. 452; Commonwealth v. Beaumont, 4 Rawle 366; Ruhlman v. The Commonwealth, 5 Binn. 24; Case of Hummell and Bishoff, 9 Watts 416; Franklin Film Manufacturing Corporation, 253 Pa. 422; Robb’s Nomination Certificate, 188 Pa. 212; Independence Party Nomination, 208 Pa. 108; Foy’s Election, 228 Pa. 14.</p> <p>Petitioner is entitled to a decree declaring her a feme sole trader: where her husband admits that he had never contributed anything to her support from the time of her marriage: Hœdt’s Petition, 43 Pa. C. C. Reports 459; Frank’s Petition, 44 Pa. C. C. Reports 625; Re Petition to be Declared Feme Sole Trader, 64 Pitts. 333; Heineman’s Petition, 64 Pitts. L. J. 565; Shaw’s Estate, 54 Pa. Superior Ct. 444.</p> <p>A person cannot take advantage of his own wrong to gain a favorable interpretation of the law: Cook v. Fisk, 78 Mass. 491.</p> <p>Petitioner’s flight from her home and her admission that she would not have accepted any support from her husband had he offered it, are sufficient to prevent a decree from being made in her favor: Weller v. Weller, 213 Pa. 265; Heineman’s Petition, 64 Pitts. Legal Journal 565; In re Petition to be Declared Feme Sole Trader, 64 Pitts. Legal Journal 333.</p>

<p>Appeal, No. 179, Oct. T., 1917, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1917, No'. 648, on verdict for plaintiff in case of Mc-Clintock & Irvine Company, a Corporation, v. The iEtna Explosives Company, a Corporation.</p> <p>Assumpsit for breach of covenants of lease. Before Carpenter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $6,968.02. Plaintiff appealed.</p> <p>Errors assigned, among others, were rulings on evidence and portions of the charge of the court.</p> <p>The steel building became on erection the property of the lessor: Isman v. Hanscom, 217 Pa. 133; Lindsay Brothers Inc. v. Curtis Publishing Company, 236 Pa. 229; Reber v. Conway, 203 Fed. Rep. 12.</p> <p>The lessee was entitled to remove the furnaces and the steel structure which supported and was a part of the furnace: Lindsay Brothers Inc. v. Curtis Publishing Company, 236 Pa. 229; Conneaut Lake Ice Co', v. Quigley, 225 Pa. 605; Kaufmann v. Liggett, 209 Pa. 87; Bobinson v. Harrison, 237 Pa. 613.</p> <p>The furnaces and the steel framework were “machinery, apparatus and other such property” within the meaning of the terms of the lease: Hill v. Sewald, 53 Pa. 271; White’s App., 10 Pa. 252; Morrison v. Baechtold, 93 Md. 319; Hart v. Plum, 14 Cal. 148; Board of Education v. Andrews, 51 Ohio St. 199; Harris v. Townley, 161 S. W. 5.</p>

Appeal, No. 91, Oct. T., 1917, by defendant, from judgment of C. P. Allegheny Co., July T., 1916, No. 2397, on verdict for plaintiff in case of Robert Clark v. Allegheny County. Trespass for personal injuries. Before Shafer, J. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.

<p>Appeal, No. 10, Oct. T., 1917, by .the National Croatian Society of the United States of America, from judgment of Superior Court, April T., 1916, No. 134, affirming judgment of C. P. Allegheny Co., June T., 1910, No. 831, for relator, on petition for mandamus, in case of Trivan Lazic v. The National Croatian Society of the United States of America, a Corporation; Pa vac, Ha j die, Stepan • Rebrovic and Josip Marohnic, The Executive Board, and Peter Pavlinac, Simún Grbin, Ivan Bozic, Nikola Bomac, Jakov Paveli and Aleksander Ivcec, Composing the Supreme Trial Court of said Corporation.</p> <p>Appeal from Superior Court.</p> <p>The facts appear in the opinion of the Supreme Court, and in Lazic v. The National Croatian Society of the United States of America, 64 Pa. Superior Ct. 169, and in the following opinion of Macfarlane, J., sur defendants’ motion for a new trial and for judgment n. o. v.:</p> <p>The plaintiff was a member of subordinate lodge No. 2 of the National Croatian Society. He was notified, by the high trial court of the national society, of charges brought by the society, appeared, objected to the jurisdiction of that court and withdrew. The trial proceeded on the charges so made and he was sentenced to- pay a fine of ten dollars and retract certain statements made by him, which were the ground of his conviction, or be expelled. On his refusal to pay and retract he was expelled.</p> <p>By paragraph eleven of the Constitution, the High Trial Court is the Supreme Court of Appeals of the society ; it decides on charges made by the board of directors against any member of the board and on charges made by a subassembly against any officer of the sub-assembly or any member thereof.</p> <p>The plaintiff’s case does not come within any of these provisions. The intention to exclude a case, of a charge made, as this was, against a member of a subassembly (unless made by the subassembly itself), is shown by the fact that section 101 provides that such a charge is to be tried before a specially appointed trial court of members of that lodge.</p> <p>The High Trial Court had no jurisdiction. The plaintiff appealed to the convention, the highest tribunal of the society, complaining that “they ignore the by-laws” and that he had been unlawfully fined and expelled; also making other charges. The convention had power to annul, modify or affirm, and it modified by relieving the plaintiff from making a retraction, but not remitting the fine, whereupon he sued out this writ of mandamus.</p> <p>He must appeal to the convention or be precluded on the ground that he has not endeavored to obtain redress within the society. He continued to object to the legality of the action of the trial court and even under the analogy of appeal in courts of law he has not submitted to the jurisdiction. It would be a strange doctrine to say: “You must take your case to the highest tribunal and exhaust your remedies in the society or you cannot come into a court of law, but if you do appeal to the supreme tribunal, you will be dismissed from the court.”</p> <p>The Court of Common Pleas awarded a mandamus to compel plaintiff’s reinstatement as a member of defendant society. The Superior Court affirmed the judgment of the Court of Common Pleas. The National Croatian Society of the United States of. America appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p> <p>The remedies within the organization must be exhausted before appealing to the civil courts: Com. ex rel. Meyers et al. v. Heilman, 241 Pa. 374; Neff v. Penna. Daughters of Liberty, 62 Pa. Superior Ct. 251; Commonwealth v. Pike Beneficial Society, 8 W. & S. 247; Commonwealth v. Union League of Philadelphia, 135 Pa. 301; Black & White-Smiths’ Society v. Vandyke, 2 Whart. 309; Beeman v. Supreme Lodge, Shield of Honor, 215 Pa. 627; Crow v. Capital City Council, 26 Pa. Superior Ct. 411.</p> <p>The civil courts will not interfere with a popular’and regular decision on the merits by the tribunal having jurisdiction- under the by-laws of the order: Irvine v. Elliott, 206 Pa. 152; Com. v. Union League of Philadelphia, 135 Pa. 301.</p> <p>The plaintiff could not be expelled from the defendant order until charges had been formulated and presented to the tribunal by which he was triable under the laws of the order.</p>

Appeal, No. 20, Oct. T., 1917, by defendant, front judgment of O. P. Allegheny Co., July T., 1915, No1. 392, on verdict for plaintiff, in case of Alfred Whittaker v. Valley Camp Coal Company, a Corporation. Trespass to recover damages for personal injuries.

<p>Judgments — Judgment by default — Opening of judgment — Judicial discretion.</p> <p>1. Where in an action on promissory notes brought against a corporation, judgment for want of an appearance was entered, and thereafter a receiver was appointed for the corporation and the receiver applied to the court to open the judgment, alleging that the service of the summons had been improper, that plaintiff and the former treasurer of defendant company had been guilty of fraud in the issue of the notes, and that the notes had been executed by the treasurer, on behalf of the company, without authority, the court did not abuse its discretion in opening the judgment.</p> <p>Corporations — Officers—Treasurer—Powers—Receipt of benefits —Previous course of dealing — Acquiescence—Estoppel—Waiver.</p> <p>2. A corporation may be held liable for the act of an officer in issuing promissory notes, although their issuance was not especially authorized by the by-laws or by the board of directors, only (1) where the corporation has received the benefit of the proceeds of the notes sued on, although irregularly executed, or (2) where the previous course of dealing of the same irregular character between the same parties for a term of years may be deemed a waiver of the by-laws, or (3) where the entire management and control of the corporation is allowed to pass into the hands of one of its officers who executes contracts in the name of the corporation.</p> <p>3. In an action on promissory notes executed by tbe treasurer of a lumber company in the name of the company, a compulsory non-suit was properly entered where it appeared that the treasurer was not authorized to execute promissory notes for the company, that he had no general control of the business of the company, and had not been in the habit of issuing notes in its behalf and that the corporation had received no benefit from the transaction.</p>

Appeal, No. 118, Oct. T., 1917, by plaintiff, from decree of O. P. Allegheny Co., Oct. T., 1915, No. 673, dismissing bill in equity to require payment of a note, in case of the Commonwealth Trust Company of Pittsburgh, a state corporation, v. First-Second National Bank of Pittsburgh, and the First National Bank of Pittsburgh, federal corporations, Thomas C. Griggs, Oscar L. Telling and William F. Benkiser, as Trustees and individually.

Appeal, No. 247, Jan. T., 1917, by plaintiff, from decree of C. P. Schuylkill Co., Sept. T., 1917, No. 1, in equity, dismissing bill in equity for an injunction, in case of W. L. Kramer v. John Slattery. Bill in equity for an injunction. Before Koch, J. The opinion of the Supreme Court states the facts. Defendant demurred to the bill; the court overruled the demurrer and dismissed the bill. Plaintiff appealed. Error assigned was the decree of the court.

Appeal, No. 174, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 2558, on verdict for plaintiff, in case of Mary Sikorski, by her next friend, Anthony Sikorski, v. Philadelphia & Reading Railway Company.

<p>Negligence — Municipalities—Streets—Obvious defects — Vehicles —Driver—Failure to observe — Presumption—Burden of proof— Contributory negligence — Nonsuit.</p> <p>1. When a person is injured in broad daylight by a defect in the highway which is easily observable, a presumption of contributory negligence arises and the burden is upon the plaintiff to shoV conditions outside himself that prevented him from seeing the defect, or which would excuse his failure to observe it.</p> <p>2. In an action by the driver of a wagon against a city to recover for personal injuries sustained in consequence of accidentally driving his wagon into a hole in a public street, a compulsory non-suit was properly entered where it appeared that the accident occurred in broad daylight, and the hole which was twenty-four inches long and six inches wide, was easily observable, and that, although plaintiff testified in a general way that he did not see the hole because his attention was attracted to traffic on the street and pedestrians at the crossing, upon cross-examination he either admitted or stated facts which made it plain that his view of the hole, for seventy-five feet or more, was not intercepted, by traffic or pedestrians, and that he had not looked at the surface of the roadway for at least two minutes before the accident.</p>

<p>Negligence — Automobiles—Pedestrians—Foot crossing — Speed— Sudden swerve — Contributory negligence — Case for jury.</p> <p>In an action by a pedestrian to recover for personal injuries sustained by being struck by a motor truck, the case was for the jury and a verdict and judgment for plaintiff will be sustained where it appeared that the accident occurred while plaintiff was crossing a street; that when plaintiff reached the center of the street he saw defendant’s automobile approaching, about 120 yards away; that</p> <p>the advancing machine approached at such speed that it was almost upon him before he could reach the curb; that in an attempt to avoid being struck, plaintiff stepped backward, that the automobile swerved in the same direction, that plaintiff then went quickly forward, that the .automobile again pursued him, and struck him when within six or ten feet of the curb, the machine running up upon the pavement before coming to a stop; that the chauffeur of the truck made no serious attempt to stop it before the collision, although he admitted having seen the plaintiff when at least 269 feet distant from the point of the accident and that he could have stopped the truck at any time within ten or twelve feet.</p>

<p>Corporations — Churches—Application for charter — Provisions of charter — Sufficiency—Doctrine — Church government— Constitutional law — Bight to raise question — Acts of May 5,1911, P. L. 172, Sec. 1; May 20,1918, P. L. 21f2, and May 1, 1907, P. L. 182.</p> <p>1. Constitutional questions can be raised only by one materially prejudiced, in person, property or estate, through preliminary steps taken to put into effect the act assailed, or by one subject to immediate burdensome penalties for nonobservance of the act, if it should be permitted to go into effect, or by one affected through actual operation of the act.</p> <p>2. The Act of May 5, 1911, P. L. 172, providing that when a religious congregation is desirous of becoming incorporated, “it shall be lawful” for the charter thereof to contain a clause as to the church’s ecclesiastical connection, “provided, however, the said constitution, canons, or ecclesiastical laws, doctrines, discipline and worship, be not inconsistent with the Constitution or laws of the United States or......of the Commonwealth of Pennsylvania, and that they do not conflict with the control of the property of gaid corporation by the lay members of said corporation,” does not require that the terms of the proviso of the act appear in the certificate of incorporation, but merely that before a charter is granted containing a clause adhering to designated ecclesiastical laws, the tribunal passing upon the application must determine that these laws are not inconsistent with the requirements of the proviso of the act.</p> <p>3. Neither the provisions of the Act of May 20, 1913, P. L. 242, that the control of church property by the lay members “shall be exercised in accordance with and subject to the rules and regulations, usages, canons, discipline and requirements of the religious body or organization to which such......congregation......shall belong,” nor the provisions .of the Act of May 1, 1907, P. L. 132, amending prior acts, require that such statutory provisions be inserted in the certificate of incorporation.</p> <p>4. Where the application for the incorporation of a church congregation was referred to'a master, the question whether the Act of May 20, 1913, P. L. 242, is constitutional, was not before him, and where the restrictive provisions of that act did not appear in the certificate of incorporation, all that the master and the lower court had to decide was that the latter document was in due form for approval as a charter.</p>

<p>Public Service Commission — Administrative functions — Discretion — When orders are final — Jurisdiction of courts to review— Reasonableness of orders — Prima facie evidence — Burden of proof —Acts of July 26, 1918, P. L. 187If, and June 8,1916, P. L. 779.</p> <p>1. On an appeal from an order of the Public Service Commission fixing a schedule of rates to he charged by a public service company under the Act of July 26, 1913, P. L. 1374, the inquiry by the court is not whether the order is such as the court would have made in the exercise of administrative functions, hut whether it was a reasonable exercise of the discretion conferred upon the commission by the statute; in other words, the court is not to substitute its judgment as to rates or values for that of the commission.</p> <p>2. It is not intended that the courts shall interfere with the commission to review its determinations further than is necessary to keep them within the law, and protect the constitutional rights of the corporations over which it is given control.</p> <p>3. The settled rule seems to be, that the orders of the commission are to be accepted as final unless (1) beyond the power which it could constitutionally exercise; or (2) beyond its statutory power; or (3) based on a mistake of law; and, where questions of fact are involved, an order, regular on its face may be set aside if it appears that (4) the rate is so low as to be confiscatory and in violation of the constitutional prohibition against taking property without due process of law; or (5) if the commission acted so arbitrarily and unjustly as to fix rates contrary to evidence or without evidence to support it; or (6) if the authority therein involved has been exercised in such an unreasonable manner as to cause it to be within the elementary rule that the substance and not the shadow determines Ae validity of the exercise of the power. The wisdom or expediency of the order is not involved.</p> <p>4. As the statute, in section 23, makes the orders of the commission prima facie evidence of the reasonableness thereof and specifies that the burden of proving the contrary shall be on the appellant, the function of the appellate court on this point is to decide whether or not the appellant has discharged the burden cast on him by the legislature.</p> <p>Appraisal of Public Service Company property for rate-making purposes — Basis of valuation — Cost of purchase on reproduction— Depreciation — Parallel and competing lines — Going concern value —Interest.</p> <p>5. In determining whether an order fixing a schedule of rates is reasonable and in conformity with law, the questions of a fail-value of the property for rate-making purposes and the amount of revenue which the property owner is entitled to collect, are necessarily involved.</p> <p>6. The ascertainment of the fair value of property for rate-making purposes, is not a matter of formulas, but calls for the exercise of a sound and reasonable judgment upon a proper consideration of all relevant facts; the commission may take into consideration various methods and use its judgment as to the extent to which either shall be employed.</p> <p>I. In appraising the value of consolidated operating waterworks for rate-making purposes, the original cost of the property is not to be taken as controlling, for there may have been extravagance in the purchase, or bad management; and, on the other hand, there may have been an actual increase in values since the original purchase or construction.</p> <p>8.’ So also the reproduction cost, less depreciation, may not give; the present fair valué of an’ old property, for it may not now be desirable to reproduce the old type of plant;. improved machinery and better methods of operation may have come into vogue which would make it true economy to relegate a large part of the physical structure of an old plant to the scrap heap.</p> <p>9. When a proper allowance is made for the value of the physical property from an investment standpoint, with the business attached, the “going concern value” is necessarily included within that estimate, although it be not estimated as a separate item.</p> <p>10. In determining cost of production as a basis for establishing a reasonable rate of charge, allowance for “going-value” usually rests on the theory that dividends should be postponed until the earnings are adequate to cover operating expenses, cost of securing new business and interest on bonds.</p> <p>11. Where the property of a water company included a part of an island in the Ohio- river near Pittsburgh and an adjoining tract of wet land, largely sand bar, lying partly within and partly outside of the harbor lines established along the Ohio river for navigation purposes by the United States government, and wells were located on this sand bar, and there was some evidence that the ordinary water of the river was purified by being filtered through the sand bar, giving this land a special value; but there was also evidence that the water in the wells did not como from the ordinary channel of the river, and that' its source was an underground stream, flowing through a bed of sand and gravel beneath the bed of the overchannel of the river, and that this stream could be reached in that vicinity by putting down wells at any point on the island, which would tap the underground flow as effectively as did the wells located on the sand bar, the commission’s valuation based on the latter evidence is not to be reversed by the court in reliance on the other evidence.</p> <p>12. When a considerable part of the land occupied by the pumping station of the company, lay in the river outside of and below the harbor line, so that the company had merely a qualified right to the use of the land between high and low watermark, and its occupancy of that portion of the property was dependent upon the grace of the Federal government, such favor could not properly be made a basis for capitalization as against the public.</p> <p>13. In fixing the value of certain parallel and competing lines purchased by a water company, where the evidence showed that the purchase was made for the purpose of getting rid of business competition, rather than to increase'the service capacity of the purchaser, the determination of what was • necessary and what was over development under the circumstances, was clearly within the proper function of the commission; and where, as here,'the finding of the comniission allowing one-third of the reproduction cost is sustained by competent evidence, and no abuse of discretion is shown, the finding should not be disturbed by the court on review.</p> <p>14. In fixing the amount to be allowed for interest during the period of construction of the plant, the commission allowed interest for a period of one and a half years, and as the plant was built to serve a number of communities and would naturally be ready for use in part at different times, so that under proper management the plant would be earning money on some of its divisions long before they were all entirely completed, it cannot be said that the report of the commission in this respect was unreasonable, or that it was not in conformity with law.</p> <p>15. Brokerage should not be included in capitalization as a basis of permanent charge against the public.</p>

<p>Public Service Company Law — Public Service Commission,— Rale schedules — Unreasonableness—Reparation.</p> <p>1. The Public Service Commission cannot constitutionally give effect for any period of time to a schedule of rates, which it has found to be unjust and unreasonable; such action is not in conformity with law.</p> <p>2- Reparation cannot be awarded by the commission until a petition therefor has been presented to it in the manner prescribed by the Public Service Company Law, and the question should not be prejudiced by a general order in advance of a hearing.</p> <p>3. Where the Public Service Commission has found that certain rate schedules filed by a water company were unjust and unreasonable, an order that the water company should be paid in accordance with such schedules for water furnished during a certain period, cannot be sustained.</p>

<p>Appeal, No. 90, Oct. T., 1917, by defendant, from judgment of O. P. Allegheny Co., July T., 1915, No. 2178, on verdict for plaintiff, in case of Henry Friedman, Jacob Roth, Max Friedman and Esther Firestone, Samuel Firestone and A. M. Simon, Executors of Estate of Henry Firestone, Deceased, v. Samuel Maltinsky.</p> <p>Assumpsit for contribution by joint endorsers of promissory notes. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $11,115.19 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points and rulings on evidence.</p> <p>Jurisdiction at law cannot be properly exercised under the complicated facts and circumstances such as exist in this case.</p> <p>Jurisdiction should be in equity alone where there are complicated equities involved which are ordinary subjects for equitable adjustment: Shillito v. Shillito, 160 Pa. 167; Malone v. Stewart, 235 Pa. 99; Gordon v. Freed, 4 Montg. 183; Goff v. Campbell, 11 Kulp 168; Blair v. Supreme Council A. L. of H, 208 Pa. 262; Bussier v. Weekey et al., 11 Pa. Superior Ct. 463; Penn Iron Co., Ltd. v. City of Lancaster, 25 Pa. Superior Ct. 478.</p> <p>The plaintiffs should be estopped from making any claim against the defendant by reason of the course of conduct selected and pursued by them during a period of time almost equal to the period of the statute of limitations: Lewis v. Carstairs, 5 W. & S. 205; Cox v. Rogers, 77 Pa. 160.</p> <p>The method of mailing to the defendant notice of the protest of the $40,000 note by the notary was not a mailing as provided for by the established law of this State and was not sufficient to make the defendant liable to the bank as an endorser, under the provisions of the Negotiable Instruments Act: American Bank v. Felder, 59 Pa. Superior Ct. 166.</p> <p>Irrespective of the express agreement between the parties, there was an implied agreement for contribution by reason of all the endorsers on the note being directors and stockholders of the corporation for whose accommodation the endorsements were made: Clapp v. Rice, 15 Gray 557; Hill v. Morse, 61 Me. 541.</p> <p>The surety may enforce contribution even though payment by him was without compulsion.</p> <p>A surety is not barred from remedy in contribution by the fact that he holds security: Williams v. Riehl, 127 Cal. 365.</p> <p>Although not necessary, the notes were duly protested and notice given: Marquardt’s Est., 251 Pa. 73; Barclay v. Weaver, 19 Pa. 396.</p> <p>The court had jurisdiction in this action: Shillito v. Shillito, 160 Pa. 167; Marquardt’s Est., 251 Pa. 73.</p>

<p>Wills — Devises of real estate — Residuary clause — “Dying without issue” — Act of July 9, 1897, P. L. SIS — Conversion—-Void gift —Reconversion.</p> <p>1. Under the Act of July 9, 1897, P. L. 213, which provides that the words “dying without issue” or words of similar import shall be construed to mean a definite and not an indefinite failure of issue, the rule is that where an absolute estate is followed by such words they will be construed as referring to death without issue in the lifetime of the testator, if the gift is immediate, or if not immediate, during the continuance of the life estate, and if the donee survives the testator, or the continuance of the intervening estate, his interest becomes absolute. If, however, he does not so survive, the limitation over takes effect as an executory devise.</p> <p>2. Where a testator devises real estate to his wife and daughter for their lives with remainder to charities upon the death of the daughter without issue, and the remainder to the charities is void, the property thereby devised vests in the testator’s heirs under the intestate laws, in the absence of a residuary clause devising real estate.</p> <p>.3. A testator devised real estate to his wife for life and at her death to his daughter Pearl “subject to the condition hereafter” that “if my daughter Pearl should die without leaving issue living, I direct that the real estate devised to my wife for life and in fee simple conditionally to her and after my wife’s death shall be sold and the proceeds thereof I dispose of as follows,” and there followed a direction to divide the proceeds between certain charities, which gifts were void because the will was not properly attested; there was a residuary clause bequeathing personal property to the daughter. The wife and daughter agreed to sell testator’s real estate and defendant refused to complete the contract alleging that plaintiffs did not have a marketable title. In an action for the purchase-money, the court entered judgment for plaintiffs. Held, that the devise to the daughter was a vested remainder in fee, subject to the executory devise to the charities named in the event of her death without issue before her mother; that, as the gifts to the charities were void, the property so devised vested in the widow and daughter under the intestate laws; that the gifts to the widow and daughter made by testator merged with the interest given them under the intestate laws and that the court properly entered judgment for the plaintiffs.</p> <p>4. As the direction to sell the realty was for the specific purpose of dividing the proceeds between the charities named, the reason for the conversion of the realty ceased on the failure of the gift and the property or its value passed to the heirs as real estate.</p>

<p>Public Service CorApany Law — ■Public Service Commission — Bight of Public Service Commission to appeal — Act of June 8,1915, P. L. 779 — Act of July M, 1918, P. L. 187If, Art. VI, Sec. Bl — Pull Crew Act of June 19, 1911, P. L. 1058 — Diming car conductor acting as braheman.</p> <p>1. Under Section 21 of the Act of July 26, 1913, P. L. 1374, making it the duty of the Public Service Oomrpissipn to file an an■swer to an appeal taken from its action in the Court of Common Pleas of Dauphin County, and under Section 30 of the Act of June 3, 1915, P. L. 779, giving any party to the record aggrieved by the final judgment, order or decree of the Superior Court a right of appeal to the Supreme Court, the Public Service Commission may become a party to the record in the Superior Court by filing an answer and may appeal from a decree of the Superior Court reversing its order in the premises.</p> <p>2. The fact that .a conductor in charge of a train may at any time require a dining car conductor to act in the capacity of brakeman or that he may act in the dual capacity of dining car conductor and brakeman is no justification for holding that such dining car conductor was a brakeman, especially where it appears that he never performed the duties of a brakeman.</p> <p>3. Where a passenger train had a crew consisting of an engine-man, a fireman, a conductor, a baggageman and a flagman, and a dining car conductor, but no brakeman, as required by the Full Crew Act of June 19, 1911, P. L. 1053, Section 5, unless the dining car conductor could be regarded as a brakeman, the Public Service Commission properly decided that the dining car conductor could not be counted as a brakeman, although he might have been required to act as such in an emergency, and the Superior Court erred in reversing an order of the commission, in favor of complainant, entered upon a complaint alleging a violation of the said Act of 1911.</p>

<p>Appeal, No. 191, Jan. T., 1917, by The Public Service Commission, from order of Superior Court, Oct. T., 1916, No. 263, reversing order of The Public Service Commission, in case of The Public Service Commission of the Commonwealth of Pennsylvania v. Philadelphia & Reading Railway Company.</p> <p>Appeal from Superior Court.</p> <p>The Superior Court reversed the order of The Public Service Commission. The Public Service Commission appealed.</p> <p>Error assigned was the order of the Superior Court.</p>

<p>Appeal, No. 192, Jan. T., 1917, by The Public Service Commission, from order of Superior Court, Oct. T., 1916, No. 264, reversing order of The Public Service Commission, in case of The Public Service Commission of the Commonwealth of Pennsylvania v. The Central Railroad Company of New Jersey.</p> <p>Appeal from Superior Court.</p> <p>The Superior Court reversed the order of The Public Service Commission. The Public Service Commission appealed.</p> <p>Error assigned was the order of the Superior Court.</p>

<p>Negligence — Automobiles—Use by family — Master and servant —Establishment of relationship — Evidence — Respondeat superior —Bailee—Case for jury.</p> <p>1. One who keeps an automobile for the pleasure and convenience of himself and family will be liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family, and it is immaterial that the chaufEeur was furnished and paid for by another.</p> <p>2. Where the owner of an automobile kept it at the garage of a manufacturing company, of which her husband was president, and arranged that such company should furnish a chaufEeur for the car for the use of her mother, and, at the request of the mother, the foreman of the garage sent her the car, in charge of a chauffeur, who negligently collided with another automobile while returning the car to the garage, the chauffeur was for the time being not the servant of the manufacturing company but of the owner of the car and for his torts, committed while engaged in her business, the owner was liable.</p> <p>3. Defendant’s mother was not a bailee, but was acting as the representative of her daughter.</p> <p>Practice, G. P. — Husband and wife — Married women — Suits against married women — Joinder of husband.</p> <p>4. Under modern legislation, a married woman is liable for her torts and may sue and be sued as a feme sole, and the joinder of her husband is not necessary or even proper.</p>

<p>Beal property — Easements—Conveyance of land abutting on street plotted but not opened — Subsequent vacation — Equity—Injunction — Refusal.</p> <p>1. A deed describing property as bounded by a street plotted on a city plan but not opened does not convey to the grantee an easement over the bed of the proposed street or entitle him to a right of passage where the street is never opened and is subsequently vacated by the city.</p> <p>2. Where in the trial of a proceeding in equity to restrain interference with plaintiff’s alleged easement over a street bounding his property it appeared that the deed conveying the property in question to plaintiff’s, predecessor in title described the premises as extending to the side of a named street which at the time was plotted on the city plan but not opened and that other property of said grantor abutting on and including the bed of the street had passed into the hands of the various defendants who were using the street for lawns, trees, shrubbery, fences and buildings, and where it appeared that the street had been formally vacated and stricken from the city plan, and there was no evidence that ¡said grantor had ever plotted the said street on a plan made by him or adopted it as part of a development of an abutting tract, but merely used the street plotted by the city as a boundary in the conveyance to the plaintiff’s predecessor in title, a bill to restrain interference with plaintiff’s alleged easement over the street was properly dismissed.</p> <p>Tesson' v. Porter Co., 238 Pa. 504; Bell v. Steel Co., 243 Pa. 83; and Shetter v. Welzel, 242 Pa. 355, applied and explained.</p>

<p>Corporations — Contracts—Contract with fire insurance adjuster —Authority of president — By-laws•—Repudiation of contract — Assumpsit — C ommission.</p> <p>1. The president of a corporation, who under its by-laws is given general control and management of its business and affairs, has authority to employ an insurance adjuster to adjust a fire loss.</p> <p>2. Defendant corporation having suffered a loss by fire, its president employed plaintiff to adjust the loss, plaintiff at once began to execute the contract, but later in the same day it was informed that the board of directors of defendant had by resolution repudiated the agreement made by the president of the company and it was notified to stop work. In an action of assumpsit by plaintiff to recover the loss sustained from the breach of the contract it appeared that defendant’s by-laws provided that “the president shall be the chief executive officer and head of the company and in the recess of the board of directors shall have the general control and management of its business and affairs.” Held, that the president had authority to make the contract, and a verdict and judgment for plaintiff were sustained.</p> <p>3. In such case plaintiff was entitled to its commission on the amount of the adjustment, although a portion thereof was received by defendant as the proceeds of damaged goods sold by the insurance companies.</p>

<p>Appeals, Nos. 169 and 170, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 3784, on verdict for plaintiffs, in case of Annie J. Sgier and Martin J. Sgier v.' Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Annie J. Sgier for $7,500, and for plaintiff, Martin J. Sgier for $3,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were the refusal of defendant’s motion for a new trial and for judgment n. o. v., the refusal of the court to grant a general exception to the charge, requested by counsel, without specifying any reason, and his refusal to receive points for charge presented after argument of counsel to the jury.</p> <p>The burden was upon the plaintiffs to prove negligence, and, having failed to discharge the burden, judgment should have been entered for the defendant n. o. v.: Green v. Pittsburgh M. & G. St. R. Co., 219 Pa. 241; Gralka v. Worth Bros. Co., 245 Pa. 467; Lanning v. Pittsburgh Rys. Co., 229 Pa. 575; Clark v. Philadelphia Rapid Transit Co., 241 Pa. 437; Benson v. Philadelphia Rapid Transit Co., 248 Pa. 302; Douds v. Beaver Valley Traction Co., 54 Pa. Superior Ct. 477; McKenna v. Alabama & V. Ry. Co., 87 Miss. 652; Laven v. Moore, 211 Pa. 245; Johns v. Penna. Railroad Co., 226 Pa. 319; Joyce v. Black, 226 Pa. 408; Livingstone v. Pittsburgh Rys. Co., 64 Pa. Superior Ct. 593; Patterson Coal Co. v. Pittsburgh Rys. Co., 37 Pa. Superior Ct. 212; Ginn v. Penna. Railroad Co., 220 Pa. 552; Wall v. Lit, 195 Pa. 375; Bradley v. Lake Shore & M. S. Railroad Co., 238 Pa. 315.</p> <p>Defendant was entitled to a general exception: Mastel v. Walker, 246 Pa. 65; Torak v. Philadelphia & R. Ry. Co., 60 Pa. Superior Ct. 248.</p> <p>cited: Dougherty v. Philadelphia Rapid Transit Co., 257 Pa. 118; Janock v. B. & O. R. R. Co., 252 Pa. 199; Hudson v. Lehigh Valley R. R. Co., 54 Pa. Superior Ct. 107; Feeney v. Long Island R. R. Co., 116 N. Y. 375; Atlantic Coast, Etc., Co. v. Grubbs, 113 Va. 214; Siever v. Pittsburgh, Etc., Co., 252 Pa. 1; McDonald v. Penna. R. R. Co., 253 Pa. 66; Gerg v. Penna. R. R. Co., 254 Pa. 316; Curtis v. Winston, 186 Pa. 492; Monaghan’s Pa. Appellate Practice, p. 211.</p>

<p>Appeal, No. 178, Jan. T., 1917, by plaintiffs, from decree of C. P. No. 2, Philadelphia Co., Dec. T,, 1915, No-. 2149, dismissing bill in equity, in case of Paul W. Miller and Louise Wolf Miller, his wife; Martin L. White and Lynda Miller White, his wife; William Sherman and Laura Miller Sherman, his wife; and Fern Rock Methodist Episcopal Church, of Philadelphia, v. Mary Louisa Miller Bower.</p> <p>Bill in equity for partition of real estate. Before Wessel, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were various rulings of fact and law and the decree of the court.</p> <p>The words “all my mortgages and money and personal property” used in the will did- not include the real estate: Blackstone v. Blackstone, 3 Watts 335; Hoke v. Herman, 21 Pa. 301; Harshaw v. Harshaw, 184 Pa. 401; Gibson’s Est., 57 Superior Ct. 283; Arnold’s Est., 240 Pa. 261; Widener v. Beggs, 118 Pa. 374; Levy’s Est., 161 Pa. 189; Watson v. Martin, 228 Pa. 248; Bruckman’s Est., 195 Pa. 363; Kemerer’s Est., 251 Pa. 282; Howe’s App., 126 Pa. 233.</p> <p>No testator is presumed to die intestate, as to any part of bis property, if tbe words of tbe will will carry tbe whole estate: Reimer’s Est., 159 Pa. 212; Stehman v. Stehman, 1 Watts 466; Little’s App., 81 Pa. 190; Raudenbach’s App., 87 Pa. 51; Graham v. Knowles, 140 Pa. 325.</p> <p>If possible a will must be so construed as to avoid a partial intestacy, unless tbe contrary is unavoidable: Appeal of Boards of Missions of U. S., 91 Pa. 507; Wambaugh’s App., 169 Pa. 61; Woodside’s Est., 188 Pa. 45; Golz’s Est., 8 Pa. Dist. Rep. 647; Findlay v. Riddle, 3 Binney 139.</p> <p>Tbe law prefers a construction that will prevent a partial intestacy to one that Avill permit it, if such a construction may be reasonably given: Given v. Hilton, 95 U. S. 591.</p> <p>Under tbe will tbe language of tbe testatrix disposed of her entire estate: Long v. Paul, 127 Pa. 456; Jacob’s Est., 140 Pa. 268; Arnold’s Est., 240 Pa. 261; Wright v. Shelton, 18 Tbe Jurist 445; Smith v. Davis, 1 Grant 158; Appeal of Boards of Missions of U. S., 91 Pa. 507; Hofius v. Hofius, 92 Pa. 305; Sweitzer’s Est., 142 Pa. 541; Reimer’s Est., 159 Pa. 212; Watson v. Martin, 228 Pa. 248.</p>

<p>Negligence — Mines and mining — Mine foreman — Act of June 2, 1891, P. L. 176 — Superintendent—Failure to supply props — Promise to furnish — Bes ipsa loquitur — Contributory negligence — Obvious danger — Assumption of risk — Emergency — Error of judgment.</p> <p>1. The Act of June 2, 1891, P. L. 176, providing for the appointment of mine foremen to have charge of anthracite coal mines, contemplates placing each separate mine in charge of a mine foreman, and to place several distinct mines, although together constituting one colliery, in charge of a single mine foreman and his assistants, is not a compliance with the terms of the act.</p> <p>2. In an action to recover damages for personal injuries sustained by an employee of the owner of several anthracite coal mines, operated together as one colliery, through the fall of a portion of the roof, evidence that defendant’s employee, whose negligence caused the accident, was in charge of several disconnected underground workings with separate openings into the surface, was properly submitted to the jury to determine whether such employee was a superintendent or a mine foreman.</p> <p>3. In an action by a coal miner in defendant’s employ to recover damages for personal injuries sustained through the fall of rock from the roof of a gangway into which plaintiff stepped to avoid an approaching car, it appeared that plaintiff had complained of the dangerous condition of the roof at this point, and at the time of the accident was awaiting the arrival of props with which to support the roof, before proceeding with his wcrk; that the person to whom the complaint was made was in charge of several mines belonging to the defendant operated together as one colliery, but which mines had no underground connections and had separate openings into the-surface; that this person, after inspection, told plaintiff there was no danger and plaintiff had no reason to anticipate the rock would fall, in absence of disturbance of tbe surrounding coal. Defendant contended that the person to whom the complaint was made was a mine foreman for whose negligence it was not liable. There was evidence that such person had been known as a superintendent and had employed and discharged workmen. Held,, the court below properly submitted to the jury the questions of (1) defendant’s negligence, (2) plaintiff’s contributory negligence and (3) whether the person to whom complaint was made was a superintendent or a mine foreman.</p> <p>4. Defendant’s contention that, in absence of evidence that the test made by plaintiff’s superior was insufficient, or negligently made, or that he might readily have discovered the danger by reasonable inspection, the mere falling of the rock is not sufficient to warrant the inference of negligence, will not prevail where plaintiff had given notice of the danger; in such case failure to provide props under the Act of 1891 is negligence per se.</p> <p>5. As the danger was not imminent, plaintiff could not be held to have assumed the risk, but was justified in relying on the judgment of his superior; and as he had to act on an emergency, he should not be held responsible for an error of judgment.</p>

<p>Practice, O. P. — Address to jury — Alleged improper remarles — ■ Motion for a new trial — Judicial discretion.</p> <p>The refusal of the lower court to grant a new trial was not reversible error where complaint was made of alleged improper remarks of counsel for plaintiff in addressing the jury, but where no objection to such remarks was made by counsel for defendant at the time when they were uttered, and where the trial judge instructed the jury to disregard them.</p>

<p>Equity — Practice, Supreme Court — Auditors—Findings of fact —Appeals.</p> <p>Findings of fact by an auditor as to the amount of compensation which should be allowed trustees based upon competent evidence and confirmed by the court below will not be reversed on appeal.</p>

<p>Appeal, No. 189, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1916, No. 330, on verdict for defendant, in case of John Stockton v. Philadelphia Rapid Transit Company and Philadelphia Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Staples, J., specially presiding.</p> <p>From the record it appeared that Moyamensing avenue, in the City of Philadelphia, is a street sixty feet from house-line to house-line and thirty feet from curb to' curb, carrying two lines of street railway tracks, and intersecting Shunk street at an acute angle between Thirteenth and Broad streets. Shunk street runs east and west and is thirty-seven feet wide from curb to curb, with a twelve-foot sidewalk on each side or sixty-one feet from house-line to house-line. Three streets enter the north sides of Moyamensing avenue and Shunk street between Thirteenth and Broad, in order*, from west to east, Watts, Juniper and Clarion. At the time of the accident in suit, a car of the Philadelphia Railways Co. was bound in a northeasterly direction on the southerly tracks on Moyamensing avenue. The distance from the south curb of Moyamensing avenue to the first rail of the southerly track was 7.81 feet. Cars of the Philadelphia Rapid Transit Co. were bound southwesterly on the north tracks on Moyamensing avenue. The distance between the rails of the several tracks was 5.19 feet, and the width of the dummy track was 4 feet.</p> <p>At 4:30 o’clock in the afternoon of May 1, 1916, the plaintiff alighted from a northbound Moyamensing avenue car at a point about ten feet below the houseline on the south side of Shunk street or at what is called the southwest corner of these two streets. He intended to walk north to Thirteenth and Porter, by crossing Moyamensing avenue, thence east on Moyamensing avenue to Thirteenth street, and up Thirteenth to Porter. He walked northeast on Moyamensing avenue across Shunk street, to the southeast corner of Moyamensing and Shunk, so close that he might, but did not, step on the curb. From this point 93 feet from the place where he had alighted from the car, he attempted to cross the street railway tracks at right angles to them. Several cars of the Rapid Transit Company were moving in a southwesterly direction, at distances of from 15 to 30 feet from one another. When the second of these transit cars was passing, the railways car signaled by bell, which he understood as notice that the car was going ahead. He then stepped back to the south, clear of the tracks of the railways car to allow it to go ahead. He believed it to have started immediately after ringing the bell. He saw a third car of the rapid transit company coming about thirty feet away. He again stepped into the railways track, held up his hand to the motorman of the transit car to indicate his intention to cross. This motorman did not stop the car. He called one remark which the motorman did not hear. At this time the transit car was but 20 feet away and the railways car only 10 feet. When the car of the transit company was 10 feet away from the point of accident, he put his foot onto the track, when the car of the railways company was within three feet of him. Without time to cross the transit track he then took one step backward, and came into collision with both cars, at a time when the motorman of the railways car was already by him.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were rulings on evidence and in directing a verdict for defendant.</p>

<p>Contracts — Principal and agent-* — Contracts by agent on behalf of principal — Authority of agent to act — Architects.</p> <p>No recovery can. be had upon a contract for the installing of mail chutes in a building in the course of construction, under the supervision of an architect, where the contract upon which the action was brought was alleged to have been made by the architect on behalf of the owners of the property, but where it appeared that the architect had no authority to make any such contract.</p>

<p>Wills — Trusts—Perpetuities—“Issue”—Construction—Intention.</p> <p>A testator bequeathed $8,000 in trust to pay the net income to Susanna E. Strong for life and upon her death to pay the-same to her daughter, Annie, and gave an additional sum of $8,000 in trust to pay the income therefrom to the said Annie during life or until her marriage and thereafter to pay the said net income to said Annie for her sole and separate use and in case of the death of Annie leaving issue a child or children for their lives, “but in case the said Annie E. Strong should die without issue then my will is that the said sum of $8,000 as well as the said sum of $8,000 first above mentioned after the death of said Susanna E. Strong shall go to my next legal heir or heirs. My will being that the income of said sum of $8,000 shall after the death of the said Susanna E. Strong be added to and form a part of the income of the said' Annie E. Strong and her children and only to revert to my next legal heir or heirs in case of the death of the said Annie E. Strong without issue as hereinbefore mentioned.” Testator bequeathed the residue of his estate to his heirs. Susanna and Annie survived testator; thereafter Susanna died and afterwards Annie, leaving two children and no issue of deceased children. Said children contended that the trust should be terminated, that the estate vested in them absolutely on the ground that the will created a perpetuity and on the ground that the word “issue” indicated an indefinite failure of issue. Held, (1) that the estate given to the children of Annie vested within the period required by the rule against perpetuities; (2) that a definite failure of issue was intended, but that even if this wer'e not the case the remainders over to the heirs would not coalesce with the life estates, as the life estates were equitable and the estate in remainder legal, and that (3) the trust could not be terminated during the lives of the children of Annie.</p>

<p>Appeal, No. 253, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March Term, 1915, No. 1060, on verdict for plaintiff in case of Ella Lancaster v. H. D. Reese. ,</p> <p>Trespass for death of plaintiff’s husband. Before Barratt, P. J.</p> <p>From the record it appeared that plaintiff’s decedent was seated in an automobile truck which was being driven eastward along Baltimore avenue and where it collided with defendant’s truck, which was being driven westwardly along the same highway. The collision occurred on a dark, rainy and foggy morning at 6:25 o’clock. There were three lights burning on the front of the truck in which deceased was riding and the driver thereof sounded his horn just before the collision. There were no lights on the front of defendant’s truck, which gave no warning of its approach. When the two trucks collided, the truck in which deceased rode rebounded about fifteen feet. The evidence was conflicting as to the negligence of the chauffeur of the truck in which deceased was riding and as to the description of the roadway and as to the speed of the two automobiles.</p> <p>The facts further appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $20,145.20. The verdict was subsequently reduced to $15,000, upon which judgment was entered for that amount. Defendant appealed.</p> <p>Errors assigned, among others, were the charge of the court and in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 257, Jan. T., 1917, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1912, No. 2137, entered for plaintiff after disagreement of jury in case of George Ewing Ross v. T. Larry Eyre.</p> <p>Assumpsit on promissory note. Before Martin, P. J.</p> <p>The facts appear by the opinion of the Supreme,- Court.</p> <p>On the trial the jury disagreed and subsequently the court below granted plaintiff’s motion for judgment under the provisions' of the Act of April 20, 1911, P. L. 70, and judgment was thereupon entered against the defendant for $3,271, representing the principal of the note and interest thereon. Defendant appealed.</p> <p>Error assigned, among others, was in entering judgment for the plaintiff.</p>

<p>Appeal, No. 272, Jan. T., 1917, by plaintiffs, from final order of C. P. No. 3, Philadelphia £!o., June T., 1915, No. 4063, refusing to take off compulsory nonsuit in case of Annie Yolpe, by her father and next friend, Angelo M. Yolpe and Angelo M. Yolpe, in his own right, v. Philadelphia Rapid Transit Company.</p> <p>Trespass for personal injuries.</p> <p>The facts appear from the following statement by Davis, J., in entering the nonsuit:</p> <p>The plaintiff, Annie Yolpe, brings this action to recover damages for injuries sustained on the fifteenth day of May, 1915, by being thrown from a motorcycle on which she was riding with one Charles Di Orio. The alleged negligence of the defendant, as the basis of the action, is that a car of the defendant company was negligently and-carelessly operated at a high rate of speed in a southerly direction on Seventeenth street at or near the intersection of Mifflin street. The plaintiff further avers that the collision between the motorcycle and the defendant’s car was entirely due to, and caused by, the negligence of defendant, the failure of the motorman in charge of the said car to give notice of intention to cross Mifflin street in advance of the motorcycle and the high rate of speed at which the said car was being operated and was not due to, or in any way contributed to on the part of, the person in charge of the motorcycle.</p> <p>The plaintiff, Miss Volpe, was riding on a motorcycle. The motorcycle was operated by Charles Di Orio. It appears that there is a seat on each side of the center bar of the motorcycle; that Miss Volpe was sitting on the right-hand side of the motorcycle and that her companion Mr. Di Orio, was seated on the opposite side. The testimony of Mr. Di Orio is that he was going west on Mifflin street; that as he approached the intersection of Seventeenth and Mifflin streets he was going about ten miles an hour about two hundred feet east of Seventeenth street; that he reduced the speed and as he reached the easterly house line of Seventeenth street he looked north and saw a car approaching eighty or one hundred feet away; that he did not stop the motorcycle, but continued to drift toward the track of the railway company; that when he reached the curb he heard a noise which he thought was made by the putting on of the brakes of the car; he assumed that the car was coming to a stop; that before he crossed the tracks the car was fifteen or twenty feet away and was still in motion. The driver of the motorcycle continued however to cross the tracks, and the motorcycle was struck by the car causing injury to Miss Volpe, the plaintiff.</p> <p>There is no positive evidence as to where the motorcycle was on Mifflin street; that is to say, whether it was exactly in the center or near the south curb line or whether it was near the north curb line. We may assume perhaps that it was in the center, the center of the street. The accident occurred at nine o’clock at night. There is no evidence that there was the slightest thing to obstruct the view of the driver of the motorcycle; in fact, he testified that he saw the car approaching when he was at the house line, that he saw it when he was at the curb line, and before he started to cross the tracks, the car was in motion and fifteen or twenty feet away from him. It does not appear that he did not have his motorcycle under perfect control and could have stopped, going at the reduced rate of speed at which he was going; he had thrown the clutch out and the motorcycle was drifting across the tracks. He said he did not hear the bell. That was negative testimony, but in view of his own testimony that he saw the car when it was eighty or one hundred feet away from him, whether or not a bell was rung is not material, as he saw the car distinctly all the time that he was approaching the tracks.</p> <p>The plaintiff and her companion were riding on a machine which involved more than ordinary hazard. The burden is on the plaintiff to prove the negligence upon which she bases her right to recover. The negligence of the defendant cannot be presumed; it must be proved. There is no evidence in this case that the motorman did not have his car under control, or that the car was going at a high rate of speed; in fact, the driver of the motorcycle testified the car was going very slowly as it approached Mifflin street. The speed had been reduced; but the car had not at any time come to a stop, and the driver of the motorcycle was aware of that fact. I repeat, he testified that he allowed the motorcycle to drift in front of the car when the car was but fifteen or twenty. feet away from him and in motion.</p> <p>As to contributory negligence on the part of the plaintiff, Miss Volpe, there appeared to be no protest from her at the time as to the conduct of the driver of the motorcycle in passing in front of the car which was but fifteen or twenty feet away from them and in motion. It appears from the evidence of the plaintiff and her witnesses that if the motorcycle was going as slowly as Mr. Di Orio, the driver, testified it was, the motorman would have been justified in believing that the motorcycle would be brought to a stop, before passing in front of a moving car which was but fifteen or twenty feet away. As we said in the case of Brown v. Philadelphia Rapid Transit Co., 252 Pa., page 475: Ht is the duty of bicycle riders, as well as drivers of vehicles, about to cross the tracks of a street railway company, to look after they have passed the house line and before they attempt to cross the tracks of the railway company.’ The driver of the motorcycle in the case at bar testified that he did that, that he complied with that requirement of law. But we further said: ‘If the car is so close or approaching at such a distance as to make the crossing perilous and they are injured by reason of their failure to look, they are guilty of such contributory negligence as bars their right to recover. If they take the chance of passing in front of a rapidly approaching car, and fail in that attempt, they are guilty of such negligence as precludes recovery, and there is no liability on the part of the defendant.’ In the case at bar the dominant right to the track was in the defendant company at that time. The driver of the motorcycle was bound to look before crossing the track, and if he took the risk of driving in front of a moving car, it would bar his right to recover. The contributory negligence of the driver of the motorcycle, may not be a controlling factor as to plaintiff’s right to recover. The plaintiff was, however, a volunteer in this hazardous undertaking, and entered no protest against the driver proceeding in front of a moving car. I am of opinion that under all the facts in this case that the plaintiff has failed to prove negligence on the part of the defendant, and that the motion for nonsuit must be granted.</p> <p>Plaintiffs appealed.</p> <p>Error assigned, among others, was in refusing to take off compulsory nonsuit.</p>

<p>Appeals, Nos. 282, 369, 370, 290 and 301, Jan. T., 1917, by Martha E. Wilson, Elizabeth E. Wilson, Alice Wilson, The Home for Aged and Infirm Colored Persons, and The Jefferson Hospital, from decree of O. C. Philadelphia Co., July T., 1916, No-. 353, dismissing- exceptions to adjudication in Estate of Annie M. Wilson, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the exceptions. Martha R. Wilson, Elizabeth E. Wilson, Alice Wilson, The Home for Aged and'lnfirm Colored Persons and The Jefferson Hospital appealed.</p> <p>Error assigned was in dismissing the exceptions.</p> <p>The legacies created by the codicil in favor of the charities were specific: Drayer’s Est., 25 Pa. Dist. Rep. 1141; Black’s Est., 223 Pa. 382; Henry’s Est., 24 Pa. Dist. Rep. 168.</p> <p>The legacies created by tbe codicil in favor of tbe charities were specific: Welch’s App., 28 Pa. 363; Walls v. Stewart, 16 Pa. 275; Barklay’s Est., 10 Pa. 387.</p> <p>The legacies in the codicil are general: Nolen’s Est., 19 D. R. 660; Welch’s App., 28 Pa. 363; Gallagher v. Gallagher, 6 Watts 473; Armstrong’s App., 63 Pa. 312; Black’s Est., 223 Pa. 382; Henry’s Est., 24 D. R. 168.</p>

<p>Appeal, No. 294, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1916, No. 4224, refusing to take off compulsory nonsuit in case of Elmer E. Bew v. John Daley, Jr., Inc.</p> <p>Trespass for personal injuries. Before Barratt, P. J.</p> <p>The facts appear from the opinion of the Supreme Court.</p> <p>The lower court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing to take off the nonsuit.</p> <p>The question whether plaintiff exercised sufficient caution in approaching the intersection was for the jury: McClung v. Penna. Taximeter Cab Co., 252 Pa. 478; Wagner v. P. R. T. Co., 252 Pa. 354.</p> <p>The non-suit was properly entered: Gosling v. Gross, 66 Pa. Superior Ct. 304; Ellison v. Atlantic Refining Co., 62 Pa. Superior Ct. 370; McClung v. Penna. Taximeter Cab Co., 252 Pa. 478.</p>

<p>Appeals, Nos. 122 and 173, Jan. T., 1917, from judgment of C. P., No. 3, Philadelphia Co., Dec. T., 1914, No. 2688, dismissing exceptions to Auditor’s report in case of Randall Building and Loan Association v. Manayunk Realty Company.</p> <p>Exceptions to auditor’s distribution of fund derived from sheriff’s sale of real estate. Before George DeB. Myers, auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the exceptions to the report. New York Studios Company and Midland Metal Company appealed.</p> <p>Error assigned, among others, was in dismissing exceptions to the report.</p>

<p>Appeal, No. 168, Jan. T., 1917, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Sept. T., 1916, No. 255, for want of a sufficient affidavit of defense in case of Producers’ Lumber Company, a Corporation, for the Use of J. Edwards Smith and Franklin A. Smith, Jr., Copartners, Trading as Franklin A. Smith & Sons and J. Edwards Smith and Franklin A. Smith, Jr., Copartners, Trading as Franklin A. Smith & Sons, Successors to the Producers’ Lumber Company, v. John J. G-uiniven.</p> <p>Assumpsit to recover amount paid to employee on drawing account. Before Audenried, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned, among others, was in entering judgment for plaintiff.</p>

<p>Public Service Company Law — Public Service Commission— Grade crossing — Certificate of public convenience — Failure to procure — Courts—Jurisdiction—Powers—Equity—Injunction—Act of July 26, 1918, P. L. 18U.</p> <p>1. Since the passage of the Public Service Company Law, the courts have no jurisdiction to consider or adjudge issues involving the propriety of opening a street at grade over the tracks of a street railway company until they come before them on appeal from an order of the Public Service Commission, and even then their powers .are restricted by the limitations of the Act of July 26, 1913, P. L. 1374, and the established relevant rules governing the review of facts by appellate tribunals.</p> <p>2. A municipality planned to open and improve three highways in such a manner that they would cross the tracks of a street railway company at grade. The street railway company filed a bill in equity to enjoin the proposed improvement, alleging that the street crossings as planned would constitute an unnecessary interference with its operations and prove dangerous to the public. It appeared that no application for a certificate of public convenience had been made, as required by the Public Service Company Law. The lower court found that the case was one within the jurisdiction of the Public Service Commission, but treated it as one within the jurisdiction of a court of equity and awarded a preliminary injunction. Held, that the court had no jurisdiction to determine the case on its merits, since the issues involved were matters within the jurisdiction of the Public Service Commission, and the record was remitted with directions to modify the decree so as to grant an injunction, providing that, if, on application to the Public Service Commission, a certificate of public convenience shall be granted the municipality, the injunction will be dissolved.</p>

<p>Negligence — Child playing with toy air gun — Discharge of match from gun — Injury to playmate — Liability of parent — Nonsuit.</p> <p>In an action against the father of a six-year-old boy to recover for injuries to plaintiff’s son resulting from defendant’s son discharging from a toy air gun an ordinary match, which for some undisclosed reason was in the barrel of the gun, a compulsory non-suit was properly entered where the only negligence alleged was in permitting the boy, immature and inexperienced as he was, to be in possession of such a plaything after defendant had received warning from several persons who knew no more than he himself did, that danger of accident attended such indulgence on his part.</p>

<p>Appeal, No. 206, Jan. T., 1917, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March T., 1916, No. 536, refusing to take off nonsuit, in case of Joseph M. Rogers v. Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Shoemaker, 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. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p> <p>As a passenger on a train belonging to this defendant, plaintiff was entitled to safe egress from this train, whether he was riding ip a Pullman or in an ordinary passenger car, and it was for the jury to say whether under the circumstances the defendant was negligent in not supplying a stool for this pássenger: Fern v. Pa. R. R. Co., 250 Pa. 487; Leedom v. Philadelphia & R. Ry. Co., 52 Pa. Superior Ct. 598; Truesdell v. Erie R. R. Co., 99 N. Y. Supp. 694; Younglove v. Pullman Co. et al., 207 Fed. Rep. 797.</p> <p>Under the circumstances of this case, the Pullman porter was the agent of the defendant and it was for the jury to say Avhether he was negligent: Coleman v. Pa. R. R. Co., 242 Pa. 304; Williams v. Pullman Palace Car Co. et al., 4 Southern Rep. 85; Lockhart v. Lichtenthaler, 46 Pa. 151.</p> <p>It could not be held as a matter of laAV that the plaintiff Avas guilty of contributory, negligence: Fern v. Pa. R. R. Co., 250 Pa. 487.</p> <p>A railroad company is not responsible for an injury to a passenger due to a fall resulting from the failure of a porter of a Pullman car to place a stool at the step of the car in which the passenger was traveling on a special contract with the Pullman company instead of in a day coach furnished by the railroad company to alight from Avhich no stool was necessary: Coleman v. R. R. Co., 242 Pa. 304; Murray v. Philadelphia & Reading Ry. Co., 249 Pa. 126.</p> <p>The plaintiff was guilty of contributory negligence: Rothchild v. C. R. R. Co. of N. J., 163 Pa. 49; Coburn v. P., W. & B. R. R. Co., 198 Pa. 436; Hopkins v. West Jersey & G. R. R. Co., 225 Pa. 193; Flinn v. Pittsburgh Rys. Co., 234 Pa. 335.</p>

<p>Negligence — Master and servant — ■Safe place to worlc — Proper materials — Contributory negligence — Choice of methods — Obviously dangerous course — Death—Case not for jury.</p> <p>In an action against an employer to recover damages for the death of plaintiff’s husband who was killed by a fall through an opening for an elevator shaft in a building in course of construction by defendant, where it appeared that inside the space left for the shaft a wooden tower had been erected; that it became necessary to shore up the tower and that deceased placed a wooden brace or shore across the shaft opening against the tower and either lay or stood upon it in order to nail it in place, whereupon the lumber collapsed, precipitating deceased to the ground, and where it further appeared that he could have nailed the shore with safety without bearing his weight upon it by reaching across a smaller space which ran at right angles to the other opening, he was guilty of contributory negligence in doing in a clearly hazardous way an act necessary to the performance of the duties of his employment, when he could have accomplished the desired end in another way apparent to him and reasonably safe, and the jury having found a verdict for plaintiff, the court properly entered judgment for defendant n. o. v.</p>

<p>Appeal, No. 236, Jan. T., 1917, by defendant, from judgment of C. P. No. .2, Philadelphia Co., March T., 1916, No. 1049, on verdict for plaintiff, in case of Eva Lischko v. Potteiger & Hainley, Incorporated.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict for plaintiff for $6,615 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p> <p>There was no evidence of defendant’s negligence: Bossi v. Burke Electric Co., 20 Dist. R. 1121; Garrison v. Armstrong & Co., 248 Pa. 402; Porter v. Wilson, 62 Pa. Superior Ct. 339; Mayers v. Atlantic Refining Co., 254 Pa. 544; Scott v. D., L. & W. R. R. Co., 136 App. Div. N. Y. 347; McKane v. Marr & Gordon, 77 Vt. 7; Fahey v. Steel Foundry Co., 19 Dist. Rep. 314; Huzvar v. Del., Etc., R. R., 232 Pa. 278.</p>

<p>Appeal, No. 255, Jan. T., 1917, by Helen C. Jenks, from decree of O. C. Philadelphia Co., Jan. T., 1910, No. 179, dismissing petition for the termination of a trust, In Estate of John H. Towne, Deceased.</p> <p>Petition for the termination of a testamentary trust.</p> <p>From the record it appeared that the will of testator was in part as follows:</p> <p>“I further give and bequeath unto the said The Fidelity Insurance, Trust and Safe Deposit Company the sum of $300,000, to hold the same in trust for the sole and separate use of my daughter, Helen C. Jenks, wife of Dr. William F. Jenks, during her natural life, and from and after her decease to hold the same to and for the use and benefit of such child or children as she may leave.</p> <p>“I also give and bequeath unto the said The Fidelity Insurance, Trust and Safe Deposit Company the further sum of $300,000, to hold the same in trust for the sole and separate use of my daughter, Alice M. Towne, during her natural life, and from and after her decease to hold the same to and for the use and benefit of such child or children as she may leave. In the event of the decease of either of my said daughters without leaving issue, then the said trust fund of said decedent shall revert to and form part of my residuary estate.</p> <p>“I also give and bequeath to the said The Fidelity Insurance, Trust and Safe Deposit Company the further sum of $150,000, to hold the same in trust for the sole and separate use of my son, Henry E. Towne, during his natural life, and from and after his decease to hold the same to and for the use and benefit of such child or children as he may leave. Should my said son die without leaving issue, then said trust fund shall revert to and form part of my residuary estate.</p> <p>“I also give my said son the sum of $50,000. I. also cancel and release to my said son all his indebtedness to me for money loaned to him to pay for his interest in the Yale Lock Manufacturing Company, of Stamford, Connecticut, to pay for the house and furniture where he now resides, and for repairing and improving the same, and for any other indebtedness, if such there be, existing at this time. I further give and transfer to him all my interest in the stock of the said Yale Lock Manufacturing Company, and also all of the indebtedness of the said company to me, valuing these gifts to him at $100,000, and making Ms portion of my estate the same as that of my other children.</p> <p>*****•»•»»**</p> <p>“The interest or income from all the trusts I have made in this will to be paid in quarterly payments to those entitled to receive them, only on their own individual receipts or order, executed on or after the days when they shall become due and payable;</p> <p>**********</p> <p>“All the rest and residue of my estate, and the reversion and remainder thereof, I give and bequeath unto the Trustees of the University of Pennsylvania, to be held by them as part of the endowment fund of that institution, the income to be used exclusively for paying the salaries of professors and other instructors in the Department of Science.”</p> <p>G-tjmmey, J., filed the following opinion:</p> <p>If this testator, in creating a trust for his daughter, Helen C. Jenks, had intended to use the words “sole and separate use” in the restricted sense of a trust for her during coverture only, it is unlikely that he would have used the same words in creating a similar trust for his son; an examination of the will shows, however, beyond a doubt, that the protection of his daughter’s estate from the control of her husband (now dead) was only one of the objects which the testator had in mind; for the gift is in trust “during her natural life”; it is safeguarded by a provision that payments of income shall be made only on her individual receipt or order (see Boyd’s Est. No. 1, 199 Pa. 487, 491) ; the trustee has active duties to perform ; he is required by the will to exercise a discretion as to the retention of investments, and finally, the will provides that in the event of the death of Mrs. Jenks without issue, the trust fund shall revert to and form part of the testator’s residuary estate which he gave to' the University of Pennsylvania; ■ and this, of itself, is sufficient reason for sustaining the trust, as it is well established that a trust for the protection of a future interest is valid and will not be stricken down even in the case of a superimposed trust for a separate use (Denis’s Est., 201 Pa. 616; see also Harrison’s Est., 227 Pa. 134; Knight’s Est., 235 Pa. 149).</p> <p>Nor does the rule in Shelley’s Case apply. The will provides as follows:</p> <p>“I further give and bequeath unto The Fidelity Insurance, Trust and Safe Deposit Company the sum of $300,-000 to hold the same in trust for the sole and separate use of my daughter, Helen C. Jenks, wife of Dr. William F. Jenks, during her natural life, and from and after her decease to hold the same to and for the use and benefit of such child or children as she may leave,” followed by the provision that in the event of her death “without leaving issue, then the said trust fund of said decedent shall revert to and form part of my residuary estate,” the residuary estate being given to the University of Pennsylvania, whose interest is contingent, in that Mrs. Jenks has issue living (a son and three grandchildren).</p> <p>While the testator may have used the words “children” and “issue” somewhat loosely, he nevertheless clearly expressed his intention to create a trust for the benefit of his daughter for life, with remainder to such child or children as she might leave, and with an alternate gift in favor of the University of Pennsylvania in the event of her death without issue. It might have saved at least part of the discussion if the testator had expressly stated that the issue of a deceased child of his daughter should take the share the parent would have taken if living, but a gift to children has frequently been held to include grandchildren (see Campbell’s Est., 202 Pa. 459), and it is a reasonable assumption that the testator had such grandchildren in mind when, in the subsequent part of the will, he used the word “issue.” That a testator’s intention is controlling requires no citation of authority; in the present instance we find nothing to show that the testator intended the remaindermen to take by inheritance from the beneficiary of the life estate, which is a prerequisite to the application of the rule in Shelley’s Case (see Stout v. Good, 245 Pa. 383); neither is there a coalescing of the estate for life and the estate in remainder, because the former is an equitable estate and the latter a legal one (Wolfinger v. Fell, 195 Pa. 12; Keller-man’s Est., 52 Pa. Superior Ct. 412).</p> <p>The court dismissed the petition. Helen 0. Jenks appealed.</p> <p>' Error assigned was in dismissing the petition.</p>

<p>Appeal, No. 243, Jan. T., 1917, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1916, No. 59, opening judgment entered for want of affidavit of defense in case of Carl Herman Roth, Trading as H. Roth & Company, v. John W. Pechin.</p> <p>Rule to open judgment.</p> <p>The facts appear in the following opinion by Swartz, P. J.:</p> <p>The plaintiff alleges that he sold and delivered to the defendant leather goods termed “bends,” on February 11, 1913, and on February 21st of the same year. The bill amounts to $1,410.82.</p> <p>The affidavit, in support of the attachment, under the Act of 1869, avers, that the defendant obtained the possession of the said goods by falsely representing his financial condition, and that he parted with all his personal property connected with his business at Front street and Fairmount avenue, Philadelphia, in violation of the provisions of the “Bulk Sales Act.”</p> <p>Under the attachment the sheriff levied on the moneys in the hands of the executors of William B. Pechin, deceased, who was the father of the said defendant. The attachment covered the interest of the defendant in the estate of his said father.</p> <p>The plaintiff brought an action in assumpsit for the said sum of $1,410.82 in the Court of Common Pleas, No. 3, of Philadelphia, on September 13, 1913. The defendant filed his affidavit of defense in that suit.</p> <p>On August 4, 1914, the defendant was adjudged a bankrupt, in the District Court of the United States for the Eastern District of Pennsylvania. On September 11, 1914, he filed an application for his discharge. The plaintiff proved this same claim in the bankruptcy proceedings.</p> <p>On March 17, 1915, the defendant applied to the said court in Philadelphia, for a stay of proceedings in the case pending in Court No. 3. The court granted the stay.</p> <p>After this stay the plaintiff, on January 6, 1916, brought the present attachment proceedings in this court. The sheriff served the writ on the garnishee, the Penn Trust Company, one of the executors of the estate of William B. Pechin, deceased, on January 8,1916, but returned nihil habet as to the defendant, John W. Pechin.</p> <p>The plaintiff filed his statement in this court, on October 24, 1916, and on November 13, 1916, took judgment against the defendant for want of an appearance.</p> <p>On February 14, 1917, the defendant filed his application for a rule to open the judgment to allow him to make a defense. We granted a rule to show Cause.</p> <p>Depositions were taken by both parties.</p> <p>The evidence shows that the defendant’s application for his discharge, under the bankruptcy proceedings, is still pending and that objections were filed to his petition.</p> <p>It is also shown that the defendant had knowledge of the attachment proceedings in this court, as early as January 21, 1916, that upon that day he filed a petition in the Philadelphia suit in which he stated that an attachment proceeding had been brought in the Montgomery County Court, notwithstanding the stay entered in the Philadelphia case.</p> <p>The defendant also sets up various defenses to the action pending in this court. First, the failure to serve the writ upon him, notwithstanding his continuous residence in Philadelphia. Secondly, the pending suit in Philadelphia and the pending application for discharge in the bankruptcy court. Thirdly, the proof of the plaintiff’s claim in the bankruptcy proceedings. And fourthly, his defense on the merits of the case.</p> <p>He purchased 1,500 belting butts from the plaintiff and only 300 were delivered. He bought 1,200 butts in the open market, at the ruling price and paid $1,108 in excess of the contract price with the plaintiff. He also purchased rub sheets from the plaintiff which were not furnished. There was a loss to the defendant from this breach of the contract. He claims loss on the 300 belting butts that were furnished because the quality was inferior to that of the sample. He used these butts and paid the bill to the plaintiff.</p> <p>The depositions do not furnish a satisfactory answer for the failure to supply the 1,200 butts. The evidence at the trial may show a sufficient excuse. The defendant should have an opportunity to present this defense unless his default is without excuse. True, the set-off arises under a prior sale made by the plaintiff and not under the contract upon which suit is now brought, but the transactions between the plaintiff and defendant continued during a long term, so that one order for goods cannot well be separated and treated as independent from the others. The letters passing between the parties referred to both contracts. But unliquidated damages arising, ex contractu, from any bargain may be set off under our Dafalcation Act, whenever they are capable of liquidation by any known legal standard: Hunt v. Gilmore, 59 Pa. 450. The measure of damages, for failure to deliver to the vendee, is well established, especially SO' where the article can be purchased in the open market.</p> <p>We are not now referring to the defendant’s alleged loss of profits, because of sales made to others of the articles purchased but never delivered by the plaintiff. It may well be that such loss cannot be introduced into this case: Clyde Coal Co. v. Pittsburgh & Lake Erie R. R. Co., 226 Pa. 391.</p> <p>We think some excuse for the delay may be found in the fact, that there was no service, although the judgment may have been legally entered under the provisions of the statute. The stay of the proceedings in the Philadelphia court on a suit to collect the same claim and the fact that the plaintiff proved his debt in the bankruptcy proceedings may have misled the defendant into the belief that the case in this court required no supervision. He had disclosed fully his defense, on the merits, in the Philadelphia action. He was a bankrupt and claims he had no means to employ counsel. He contends it was the duty of the trustee in bankruptcy to protect his estate. Courts usually are liberal in opening judgments entered for want of an appearance, where a good defense or excuse is disclosed. This liberality is indicated, when the court declares, that such application to open is not limited to the term at which the judgment was entered: Riegel v. Wilson, 60 Pa. 388, p. 36. “In the nature of the case, there is not and ought not to be any limitation of time to the power of the court to open a judgment entered by default for want of an appearance” : Breden v. Gilliland, 67 Pa. 34.</p> <p>There was no serious delay in this case. The judgment was entered a. few days before the end of the October term and the application to open was made during the next term. Upon a careful consideration of all the circumstances disclosed we are of opinion that the judgment should be opened to let in the defendant’s defense.</p> <p>We are not convinced that the proceeding in Montgomery County was irregular because of the pending suit in Philadelphia for the same debt.</p> <p>In the action before us, the plaintiff sought to attach property so that he might acquire a lien thereon. The scope of the suit ivas not the same as in the Philadelphia action. An attachment proceeding is a collateral process and not a multiplication of suits against the debtor: Kase v. Kase, 34 Pa. 128.</p> <p>Where a plaintiff proves his claim in the bankruptcy court, can he bring a cult for the same claim, in the State court, against the bankrupt after the latter has filed an application for his discharge?</p> <p>In the prior bankruptcy laws, there was a provision that such proof of a claim was a waiver of any action against the bankrupt: Cook v. Coyle, 113 Mass. 252. The same provision is not found in the existing bankruptcy act.</p> <p>Where the discharge in bankruptcy would constitute a bar to any further proceeding on the claim and an application for such discharge is pending the State courts are careful to protect the bankrupt’s rights until the question of his discharge is determined.</p> <p>The pláintiff’s claim, in the suit before us would be barred by a discharge in bankruptcy. This was a controverted matter for some years, but in Crawford v. Burke, 195, U. S. 176, it was clearly decided, that in a sale of goods, although the property was purchased under a misrepresentation of the assets of the buyer, such fraud would not prevent the bankrupt from setting up his discharge as a bar to an action for the price of the goods. See also Harrington & Goodman v. Herman, 72 S. W. Eepr. 546.</p> <p>We see no reason why the plaintiff should not be protected in obtaining his lien on this after-acquired property, in the hands of the garnishee, SO' that he may pursue the same should the defendant fail in obtaining his discharge. He now has his lien and the opening of the judgment Avill not destroy his preference, if he can establish his case.</p> <p>Whether there is any right to prosecute his suit to judgment, at this time, before the question of the defendant’s discharge is settled, we need not now decide. There would seem to be no special need for such judgment at this time.</p> <p>We referred to the rule of law that the bankrupt’s interests are protected in the State courts so as not to deprive him of the privileges which the act intended to confer, because we regard this precaution as an additional reason why the status of the after-acquired property of the defendant should not be disturbed beyond the protection of the plaintiff’s lien. This lien, as already stated, we can protect in our opening order. It is also important to note that if the defendant obtains his discharge then the plaintiff has no right of action under his pending-suit in this court, although this is a question not now before us, and it is not necessary that we should pass upon the same except for the reasons already given.</p> <p>The lower court opened the judgment and let the defendant into a defense, and ordered that the lien of the attachment should still continue. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Mortgages — Consideration—Parol evidence - — ■ Contemporaneous oral agreement — Subsequent acts of parties — Evidence—Admissibility — Case for jury — Collection fee — Recovery of fee — Reasonableness.</p> <p>1. Upon a scire facias sur mortgage, which on its face was to secure the sum of $3,500, the defendant offered evidence to the effect that the mortgage had been given for the purpose of obtaining a loan of $2,500, under an oral agreement that $1,500 was to be retained by the plaintiff in part payment for work performed for the mortgagor’s husband, and $1,000 was to be returned to the husband, who was his wife’s agent in the transaction; and that such parol agreement was entered into between the plaintiff, and the mortgagor’s husband at the time of the execution of the contract relating to the mortgage, and was the inducing cause for the execution thereof; and that immediately after the execution of the mortgage plaintiff attempted to carry the terms of such parol agreement into effect. Plaintiff subsequently denied the existence of the parol agreement. The trial judge admitted in evidence a paper subsequently executed by the mortgagor’s husband, at plaintiff’s request, in which reference was made to the fact that only $1,500 was due plaintiff on the mortgage; and the purchaser of the property testified that plaintiff had stated that that was the amount due. The jury found a verdict for the plaintiff for an amount representing the $1,500 and interest. Held, (1) evidence of the contemporaneous parol agreement and of the paper subsequently executed was properly admitted, (2) the mortgagor’s husband was a competent witness, and (3) the ease was for the jury and plaintiff’? motion for judgment n. o. v. for the full amount of the mortgage was properly refused.</p> <p>2. In such case where the jury failed to allow plaintiff the collection fee in the mortgage, the court did not err in making an order providing that if defendant did not file a stipulation for such an amount within fifteen days, a new trial would he awarded.</p> <p>3. In such ease a collection fee of five per cent, was reasonable and proper.</p>

<p>Appeal, No. 277, Jan. T., 1917, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1916, No. 42, on verdict for plaintiff in case of Clinton O. Rothrock v. Lehigh Valley Transit Company.</p> <p>Trespass to recover damage for personal injuries. Before Groman, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 9, Oct. T., 1917, by plaintiff, from decree of C. P. Beaver Co., June T., 1915, No. 3, in equity dismissing bill in equity for the abatement of a nuisance, in case of Angelo Gallio v. Harry Balter. Bill in equity for an injunction. Before Baldwin, P. J. The opinion of the Supreme Court states the facts. The court on final hearing refused the injunction and directed that the costs should be divided equally between the plaintiff and the defendant.

<p>Appeal, No. 175, Oct. T., 1917, by defendant, from judgment of O. P. Allegheny Co., April T., 1916, No. 2063, in case of John Maloy v. Rosenbaum Company.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p> <p>Uncontradicted testimony of both plaintiff’s and defendant’s witnesses establishes the fact that the chauffeur of the automobile was indulging in a joy ride at the time of the accident: Lotz v. Hanlon, 217 Pa. 339, 341; Curran v. Lorch, 243 Pa. 247; Scheel v. Shaw, 252 Pa. 451; Solomon v. Commonwealth Trust Co. of Pittsburgh et al., 256 Pa. 55; Blaker v. Philadelphia Electric Co., 60 Pa. Superior Ct. 56.</p> <p>The automobile ride on which the chauffeur took his friends was not a deviation from the route to the garage, but an abandonment of it: Blaker v. Philadelphia Electric Co., 60 Pa. Superior Ct. 56; Scheel v. Shaw, 252 Pa. 451; Solomon v. Commonwealth Trust Co. of Pittsburgh et al., 256 Pa. 55.</p> <p>There was ample evidence to justify the jury in finding as a fact that the chauffeur was acting in the scope of his employment: Penna. R. R. Co. v. Spicker, 105 Pa. 142; Conner v. Pa. R. R., 24 Pa. Superior Ct. 241; Hershinger v. Pa. R. R., 25 Pa. Superior Ct. 147; Edgeworth v. Wood, 58 N. J. Law 463; Hessessey v. Baugh & Sons Co., 29 Pa. Superior Ct. 310; Corpies v. Iron City Sand Co., 31 Pa. Superior Ct. 107; Sarver v. Mitchell, 35 Pa. Superior Ct. 69; Williams v. Ludwig Floral Co., 252 Pa. 140; Witte v. Mitchell-Lewis Motor Co., 244 Pa. 172; Moon v. Matthews, 227 Pa. 488.</p> <p>Appellant’s case at most amounts to proof that the chauffeur deviated from the shortest and most direct route to the garage and took a longer and less direct one. It shows no abandonment of the master’s business: Luckert v. Reighard, 248 Pa. 24; Solomon v. Commonwealth Trust Co. of Pittsburgh, 256 Pa. 55.</p>

<p>Appeal, No. 187, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 2, Philadelphia County, Dec. T., 1915, No. 664, for defendant in case of James A. Perkins to the use of Bank of Commerce v. W. A. Lippincott Company.</p> <p>Assumpsit for the price of dry goods sold and delivered to defendant. Before Wessel, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The case was tried before the judge without a jury. The trial judge found for defendant and entered judgment on the findings. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of the trial judge, and the judgment of the court.</p>

<p>Sheriff’s sales — Irregularities — Misdescription —Setting aside sales — Discretion of court — Holder of legal title — Trustees.</p> <p>1. Setting aside or refusing to set aside a sheriff’s sale is in the sound discretion of the court below, and the decree of the court will not be reversed in absence of clear abuse.of discretion.</p> <p>2. The fact that the description of property advertised by a sheriff for sale contained a technical misstatement of the street numbers was held not to be such an irregularity as would justify the setting aside of the sale, where it appeared that the premises were otherwise properly described.</p> <p>3. Upon a rule to show cause why a sheriff’s sale of real estate should not be set aside it appeared that the petitioner was the holder of the legal title, subject to the direction and control of trustees. Previous to the sale the trustees presented a petition asking that the writ be stayed, which petition the court dismissed on the morning of the sale. The sheriff before beginning the sale and before being advised of the discharge of the rule by the court, announced the property in question would not be offered for sale; subsequently, the sheriff was notified of the court’s action and counsel for the parties in execution requested that the sale be proceeded with and the property was then sold. There was some evidence that persons intending to bid on the property had left prior to the sale. The attorney who represented the trustees in the petition to stay the sale, bid on the property, but not for the trustees, and made no protest against the sale. The trustees did not complain in the petition to set aside the sale nor did the petitibner complain on their behalf but on his own as real and registered owner. The petitioner did not offer to bid or secure a purchaser at a higher price. Held, the court below properly discharged the rule.</p> <p>4. Doubt if petitioner has such interest in the property as to entitle him to intervene in his own hehalf.</p>

<p>Appeals, Nos. 324 and 325, Jan. T., 1917, by defendant, from judgments of C. P. No. 1, Philadelphia Co., March T., 1915, No.-2395, in case of John L. Wood, in his own right, and John L. Wood, as Executor of the Estate of Ellie E. Wood, deceased, y. Philadelphia Rapid Transit Company,</p> <p>Trespass to recover damages for personal injury. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, John L. Wood, in his own right, for $10,000; and for John L. Wood, executor, for $8,000. The court reduced the verdict for John L. Wood, in his own right, to $7,500; and the verdict for John L. Wood, executor, to $5,500; and entered judgment on the verdicts as reduced. Defendant appealed.</p> <p>Errors assigned were in refusing to enter judgment for defendant n. o. v., in refusing a new trial, rulings on evidence, and instructions to the jury.</p> <p>The refusal of the court to enter judgment for defendant n. o. v. was error, there being no evidence of negligence on the part of the conductor of the car: Meier v. Penna. R. R. Co., 64 Pa. 225; Niebalski v. Penna. R. R. Co., 249 Pa. 530; Mack v. Pittsburgh Rys. Co., 247 Pa. 598; Fern v. Penna. R. R. Co., 250 Pa. 487; Dunne v. Penna. R. R. Co., 249 Pa. 76; Ginn v. R. R. Co., 220 Pa. 552; Bradley v. Lake Shore & M. S. Ry. Co., 238 Pa. 315; Fox v. Philadelphia, 208 Pa. 127; Paynter v. Atlantic City R. R. Co., 62 Pa. Superior Ct. 455; Keator v. The Scranton Traction Co., 191 Pa. 102; Kantner v. Philadelphia & Reading Ry. Co., 236 Pa. 283; Green v. B. & O. R. R. Co., 214 Pa. 240; Barlick v. B. & O. R. R. Co., 41 Pa. Superior Ct. 87; Hillebrecht v. Pittsburgh Railways Co., 55 Pa. Superior Ct. 204; Widener v. Philadelphia R. T. Co., 224 Pa. 171.</p> <p>The evidence of defendant’s negligence was ample and convincing: The Pittsburgh, Fort Wayne & C. Ry. Co. v. Hinds, 53 Pa. 512; Pittsburgh & C. R. R. Co. v. Pillow, 76 Pa. 510; Rommel v. Schambacher, 120 Pa. 579; Mulhause v. Monongahela Street Ry. Co., 201 Pa. 237; Mittleman v. Philadelphia Rapid Transit Co., 221 Pa. 485; Burns v. Penna. R. R. Co., 233 Pa. 304; Mack v. Pittsburgh Rys. Co., 247 Pa. 598; Fern v. Penna. R. R. Co., 250 Pa. 487.</p>

<p>Appeal, No. 225, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., March T., 1916, No. 1924, for defendant, entered on the pleadings in the case of Joseph A. Jackson, Bessie A. Jackson Curtis, Joseph Jackson Restein and James Restein v. Arthur J. Myers, Guardian of Lillian M. Jackson and Ariel K. Jackson, Minors.</p> <p>Assumpsit on a contract for the purchase of real estate. Motion for judgment on question of law raised by affidavit of defense. Before Martin, P. J.</p> <p>The facts appear in Jackson et al. v. Myers, 257 Pa. 104, and in the opinion of the Supreme Court. The court entered judgment for defendant on the pleadings. Plaintiffs appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Decedents’ estates — Practice, O. G. — Administrators — Accounts —Reopening of adjudication — Omission of name of heir from petition for distribution — Fraud—Evidence—Laches.</p> <p>In a proceeding in the Orphans’ Oourt for the reopening of the adjudication of an administrator’s account, and for the surcharge of the administrator, it appeared that the administrator had omitted from the petition for distribution the name of one of the next of kin of the decedent, whereby the share of the administrator, who was also of kin to the decedent, was increased; it also appeared that the administrator, through his counsel, had advertised for the heirs of the decedent; and that although he had heard years before of the petitioner, he had no means of knowing, at the time of the audit, whether petitioner was alive; it further appeared that petitioner had delayed five years after learning that he had been excluded from the distribution, before taking steps to open the adjudication. The master to whom the case was referred found that the administrator had not been guilty of fraud in omitting the name of the petitioner from the petition for distribution; further found that the petitioner had been guilty of laches in failing to assert his rights at an earlier date and recommended a dismissal of the petition. The Orphans’ Oourt sustained exceptions to the report of the master. Held, on appeal that the report of the master should have been confirmed.</p>

<p>Negotiable instruments — Promissory notes — Payee — Holder in due course — Payee as holder — Common law — Statute-.—Presumption — Act of May 16,1901, P. L. 191±.</p> <p>1. The payee of a promissory note may become a holder in due course under the Negotiable Instruments Act of May 16,1901, P. L. 194, and may maintain an action thereon against the endorser.</p> <p>2. In an action on a promissory note brought by the payee, who had become the holder for value thereof before maturity, against an endorser, where defendant contended that he had endorsed the note for accommodation of the maker, with the name of the payee in blank, but with the express understanding that plaintiff’s name should not be inserted as payee, and that plaintiff’s name had been inserted in violation of the agreement, but where there was nothing to show that plaintiff had knowledge of such facts, the case was for the jury, and a verdict and judgment for plaintiff were (sustained.</p> <p>3. In such case it was not material that the payee had endorsed the note above defendant’s signature to facilitate its collection.</p>

Appeal, No. 331, Jan. T., 1917, by plaintiff, from judgment of C. P. Lehigh Co., Oct. T., 1915, No. 31, for want of a súffieient affidavit of defense, in case of Mary E. Bartholomew v. Allentown National Bank. Assumpsit for the proceeds of the sale of stocks and bonds pledged by the plaintiff to the defendant. Rule for judgment for want of sufficient affidavit of defense. Before Henry, P. J., specially presiding. The opinion of the Supreme Court states the facts.

Appeal, No. 175, Jan. T., 1917, by defendant, from order of C. P. Chester Co., Jan. T., 1917, No. 24, refusing change of venue in case of T. L. Eyre v. William H. Berry. Petition for change of venue. From the record it appeared that the petition was presented on the day when the case was listed for trial. The facts appear in the following opinion of Landis, P. J., specially presiding.

<p>Negligence — Street railways — ■Connecting lines — Continuous journey — Same car and crew — Carrier and passengers — Implied contract — Collision on second line — Liability of first company— Case for jury.</p> <p>1. In an action against a street railway company to recover for personal injuries sustained by a husband and wife while passengers on a street railway car, by reason of its collision with another car, where the defendant disclaimed liability on the ground that the accident occurred in another state on the lines of a connecting railway and that defendant’s line and charter powers extended only to the state line, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that both cars were marked with the name of the city at the end of the connecting line in the other state and bore the initials of the defendant company, that the journey was made without change of conveyance or car crew, and there was nothing at the state line to indicate to the traveling public the terminus of either road. ' ■</p> <p>2. When all the facts are considered, only one inference is possible, namely, that, when plaintiffs were accepted as passengers, defendant intended, and at least impliedly agreed, to carry them to their destination.</p> <p>3. Under the facts of this case, an operative agreement between the two companies by which each paid its own expenses pro rata, including the wages of the crews, will not affect the rights of the plaintiffs against defendant. • _</p> <p>4. So far as plaintiffs’ rights are concerned, the employees were either the servants or agents of defendant until the contract of carriage was fulfilled, and for that purpose the' tracks of the other company were, pro hac vice, those of defendant.</p>

<p>Contracts — Sales—Construction — Agreement to soil output of manufacturing plant — Furnishing of raw materials by purchaser— Levy by creditor — Sheriff’s interpleader by purchaser — Judgment for defendant n. o. v.</p> <p>1. The law will not permit any device to elude the principle which forbids a lien to be created on chattels as a security separate from their possession.</p> <p>2. A wall paper company and a manufacturing company entered into an agreement under which the latter was to “sell and deliver,” and the former to “buy and pay for” the entire output of the manufacturing company’s plant at certañi prices for a period of one year; the raw materials necessary for the manufacture of such paper were to be ordered by the manufacturing company, billed to the wall paper company and the latter was to pay therefor, and payments were to be credited to the account of the wall paper company “against the deliveries of paper”-; wages for the production of such paper were to be paid with money furnished by the wall paper company upon receipt of certified pay rolls for same; and all raw materials purchased under such agreement .were to remain the property of the wall paper company, but the contract was pilent as to the title to the manufactured product. While the companies were operating under this agreement a creditor of the manufacturing company levied on the manufactured paper and raw material in the manufacturing company’s plant. The amount of such creditors'</p> <p>claims was less than tbe appraised value of tbe manufactured paper. Held, tbe title to tbe manufactured product was in tbe manufacturing company and judgment was properly entered non obstante veredicto in favor of tbe execution creditor.</p>

<p>Appeal, No. 337, Jan. T., 1917, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1917, No. 216, for plaintiff for want of a sufficient affidavit of defense in case of George C. Hale, now to the use of O. C. Wiesner, trading as the George C. Hale Co. v. The Borough of Ashland.</p> <p>Replevin for fire motors.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Bechtel, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered judgment for the plaintiff for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned, among others, was in entering judgment for the plaintiff, for want of a sufficient affidavit of defense.</p> <p>Under the lease the title to the motors did not pass to the purchaser, the purchase-money not having been paid: Wickes Bros. v. Island Park Association, 229 Pa. 400; Commonwealth v. Guinzburg, 46 Pa. Superior Ct. 488; Commonwealth v. Hess, 148 Pa. 98.</p>

<p>Appeal, No. 378, Jan. T., 1918, by defendant, from judgment of C. P. Schuylkill Co., May T., 1916, No. 328, entered by confession, in case of Commonwealth of Pennsylvania, ex Relatione County of Schuylkill, and Borough of Tamaqua v. C. E. Sitler, W. A. Sitler, Isaac Christ, S. C. Seligman, G. A. Wilford, Neis Nelson, C. W. Royer, C. O. Seiberling, Geo. Krell and L. F. Remaly.</p> <p>Judgment on tax collector’s bond certified from the Court of Quarter Sessions to the Court of Common Pleas.</p> <p>Rule to show cause why W. A. Sitler should not be discharged from further liability on tax collector’s bond for years 1913 and 1914.</p> <p>The facts appear from the following opinion by Koch, J.:</p> <p>C. E. Sitler became collector of taxes in the Borough of Tamaqua some years ago and as such was entitled to the duplicates issued in the years 1913 and 1914. Being in default for some of the taxes in said duplicates levied and assessed, Clinton E. Sitler’s bonds for the years 1913 and 1914 were entered to the above numbers and term. W. A. Sitler, the petitioner, is one of the numerous sureties on C. E. Sitler’s bonds. This is not the first attempt of W. A. Sitler to escape his liability under the bonds entered to the above numbers. A former rule to show cause why the judgment entered to No. 326, May Term, 1916, should not be stricken from the record or the judgment opened, etc., was discharged and our order was subsequently affirmed by the Supreme Court. In effect, so far as this petition is concerned, there is no difference, whether the judgment be stricken from the record or this rule be made absolute. If the reasons for making this rule absolute be good, they were good when the other rule was obtained and should have been stated then. The reasons now relied upon, if good at all, would be good reasons why all the other sureties should be relieved. We do not think as many separate days in court as there are sureties and reasons taken together should be allowed to get rid of such liability. One day in court ought to be sufficient for all purposes and for all concerned. However, we will consider the reasons now here assigned for our disposal.</p> <p>In the fall of 1915, said collector of taxes departed Tamaqua and went to Oregon, leaving no knowledge of his whereabouts to the people of Tamaqua. He was considered a defaulter and regarded as an absconder, and a number of his bondsmen petitioned this court to appoint some one to fill an alleged vacancy in said office. The present petitioner is the father of said O. E. Sitler and was one of the most urgent to have said alleged vacancy in office filled by our appointment. Our late colleague, Judge Brumm, in consideration of th.e premises, handed down an order appointing George M. Krell in December, 1915. Krell is one of said bondsmen and joined with some of them in having the appointment made. The appointment of Krell was not favored by W. A. Sitler, the present petitioner, as I recall the matter. After Krell’s appointment, Judge Brumm made a peremptory order directing O. E. Sitter’s brother, who- was his deputy and had charge of the duplicates and the office, to hand over said duplicates to said Krell.</p> <p>The custodian of the duplicates complied and delivered the same to said Krell. ¡Soon thereafter, 0. E. Sitler was arrested in Oregon on a warrant issued in Tamaqua charging him with embezzlement and he was brought back, indicted, tried, convicted and sentenced to prison. The amount for which he was convicted of embezzling was only $176.65, whereas, it is claimed that the balances due to the Borough of Tamaqua on the duplicates for 1913 and 1914 are respectively $1,379.17 and $6,611.03, and the -balances due to the County of Schuylkill on the duplicates issued for the years 1913 and 1914 are respectively $3,779.19 and $9,224.26, and we are urged to infer that C. E. Sitler collected only $176.65 of said balances, and, after drawing such inference, we are further urged to say that C. E. Sitler “is not liable for failing to pay over moneys not collected and that the sureties on his bond are not liable therefor.” Impliedly, the contention of the petitioner admits as correct the balances stated as uncollected. Such being the case, there is no escape from liability under the condition of the bonds which require that the whole amount of the taxes must be collected and paid over or accounted for according to law. If it be true that the large amount remaining over and above the $176.65 remains uncollected, then the collector has failed to account for same, and after the lapse of all this time he is certainly in default and he and his sureties are liable on the bonds. Various statutes fix the times within which collectors of taxes are required to make settlements and the-limit has expired for all of said duplicates. It is, therefore, absurd to contend that said tax collector settled or accounted, “according to law” for said balances.</p> <p>W. A. Sitler, the petitioner, further insists that when Krell was appointed and given charge of the duplicates, which officially and of right belong to C. E. Sitler, C. E. Sitler and his sureties thereby became ipso facto released from further liability on the said bonds. With this contention, we cannot agree, because it lay not within the power of the court to appoint Krell and thereby oust Sitler under the circumstánces. We covered this matter hitherto in an opinion filed to No-. 109, March Term, 1916, and deem it unnecessary to here go over the same question again. The reasons for our conclusion are there fully stated. Now if Sitler stands by and looks on as Krell collects the taxes which Sitler himself should collect or should deputize some one else to collect for him, it does not release the sureties from the condition that Sitler shall collect and pay over or account for, according to law, the whole amount of taxes charged and assessed in the several duplicates which were delivered to Sitler. Sitler or his sureties, or both, should make settlement of the balances due on the several duplicates and thereafter all uncollected taxes may become available for the reimbursement of Sitler and his sureties, but the borough and the county cannot be held up until it pleases Sitler to collect the taxes. Each is entitled now to the balances due to them, respectively.</p> <p>The lower court dismissed the petition. Wallace A. Sitler appealed.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Appeal, No. 367, Jan. T., 1917, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1914, No. 915, entering judgment for defendant after disagreement of jury, in case of Joseph Bradican, by his father and next friend, William Bradican, and William Bradican v. Scranton Railway Company.</p> <p>Trespass for personal injuries. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The jury disagreed and was discharged. Thereafter the lower court entered judgment for the defendant upon the whole record. Plaintiffs appealed.</p> <p>Error assigned, among others, was in entering judgment for defendant.</p> <p>Presumptively a boy eleven years of age is not capable of seeing or appreciating danger, and can not be charged with contributory negligence: Gerg v. Penna. R. R. Co., 254 Pa. 316.</p> <p>The question whether such presumption had been properly rebutted, and the contributory negligence of the defendant established, is for the jury under proper instructions : Strawbridge v. Bradford, 128 Pa. 200; DiMeglio v. Philadelphia & Reading Ry. Co., 252 Pa. 391; Kelly v. Traction Co., 204 Pa. 623; Nagle v. Allegheny Valley R. R. Co., 88 Pa. 35; Kehler v. Schwenk, 144 Pa. 348.</p> <p>Even though the- conduct of the plaintiff was such that in the case of a grown person it would be declared contributory negligence as a matter of law, it is still a question of fact for the jury: Lodge v. Pittsburgh & L. E. R. R. Co., 243 Pa. 10; Davis v. Penna. R. R. Co., 34 Pa. Superior Ct. 388.</p> <p>Under the Act of April 20, 1911, P. L. 70, judgment was properly entered for the defendant if the defendant was entitled to binding instructions: Wright v. Bristol Patent Leather Co., 257 Pa. 552; Farmers & Breeders, Etc., Co. v. Curran, 65 Pa. Superior Ct. 352.</p> <p>A verdict against the defendant could not be sustained: Bornscheuer v. Consolidated Traction Co., 198 Pa. 332; Underwood v. Pittsburgh Railways Co., 238 Pa. 332; Shope v. Central P. T. Co., 242 Pa. 207.</p> <p>Plaintiff is bound by his own statements made under cross-examination where they convict him of contributory negligence: Black v. P. R. T. Co., 239 Pa. 463; Latnee v. P. R. T. Co., 55 Pa. Superior Ct. 362.</p>

<p>Appeal, No. 98, Jan. T., 1917, by plaintiffs, from judgment of C. P. No. 1, Philadelphia Co., March T., 1915, No. 487, on verdict for defendant in case of Harold E. Gillingham and Charles S. Rich, Executors of the Estate of Frank C. Gillingham, deceased, v. Frank C. Gillingham & Son Company, a corporation.</p> <p>Assumpsit for money loaned by plaintiff’s decedent to defendant. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The case was tried by a judge without a jury. The trial judge found in favor of the defendant and entered judgment on the findings. Plaintiffs appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of facts and law and the judgment of the court.</p>

<p>Appeal, No. 186, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 648, on verdict for plaintiff in case of Marie 0. Rafferty by her mother and next friend, Catherine McDermott, v. Earl K. Davis.</p> <p>Trespass to recover damages for personal injuries. Before Baeeatt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,500.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p> <p>The plaintiff having alleged negligence as the basis of his action, must prove it: Forster v. Rogers Bros., 247 Pa. 54; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Sowers v. McManus, 214 Pa. 244; Snodgrass v. Carnegie Steel Co., 173 Pa. 228; Lanning v. Pittsburgh Rys. Co., 229 Pa. 575; Wiest v. Electric Traction Co., 200 Pa. 148; McLean v. Schoenhut, 225 Pa. 100; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Stewart v. DeNoon, 220 Pa. 154.</p> <p>There was overwhelming evidence in this case from which the jury could infer negligence on the part of the defendant. The charge of powder was excessive: Mulchanock v. Whitehall Cement Mfg. Co., 253 Pa. 262.</p> <p>The case was for the jury: Chittick v. Philadelphia Rapid Transit Co., 224 Pa. 13; Welsh v. Kerr Coal Co., 233 Pa. 341; Hess v. American Pipe Manufacturing Co., 221 Pa. 67; Driscoll v. Gaffey, 207 Mass. 102.</p>

<p>Contracts — Sales—Executed contracts — Failure to perform — Brokers — Undisclosed principal — Examination of goods — Waiver of option — Inability to examine — Measure of damages — Market value —Value at principal market — Act of May 19, 1915, P. L. 5^8.</p> <p>1. Where goods are sold by brokers who make no disclosure of their principal at the time of the making of the contract, they will be personally liable for breach thereof, and cannot escape such liability by subsequently notifying the vendee that the contract would not be performed and that they were acting as agents for a third person to whom the vendee should look for damages.</p> <p>2. The privilege given to a vendee to examine goods at a point of shipment is not a condition precedent to the contract taking effect; and such privilege may be exercised or waived at the option of the vendee without affecting the validity of the contract. Such an inspection may disclose grounds for rescinding the contract; but in such ease it is optional with the vendee whether to rescind or not, and, until rescinded, the contract remains in force.</p> <p>3. The contention that no recovery may be had for breach of a contract of sale because the privilege of inspecting the goods was not availed of by the vendee is without merit, where it appears that the vendee sent an agent to the point stipulated for making the inspection, and the goods were not there for him to inspect.</p> <p>4. Where the market value of goods sold is based throughout the country upon the market value in New York City, less the cost of transportation thither, the plaintiff may prove the value of the goods by proving the value in New York City and deducting therefrom the cost of transportation from the points of shipment.</p> <p>5. Under the Act of May 19, 1915, P. L. 543, Sec. 67, it is an available market to which resort is to be had for a price, with no mention of place of delivery.</p> <p>6. In an action for breach of a contract for the sale of merchandise, it appeared that defendants, who were brokers, wrote the plaintiff stating “We have sold to you as brokers per contracts turned over to us, cotton linters as follows: Quantity 475 Bales. Quality Clean Mill Run. Price 6.18 f. o. b. cars mills.......You have the privilege of examining stock at point of shipment, but shipping instructions to be given to us immediately.” It appeared that shipping instructions were promptly given to defendants; and that plaintiff sent its agent to the points of shipment to examine the goods sold, and that the agent could find none and therefore could not make the inspection. Thereafter, defendants notified plaintiff that they could not deliver the goods sold and stated that they had sold them as brokers on account of a third party; and that their interest in the matter had ceased. Defendants contended (1) that they were not personally liable as they had made the sale as brokers; (2) that as no examination of the goods had been made by plaintiff, the contract was not complete, and no recovery could be had for its breach; (3) that the measure of damages claimed was not the proper measure of damages. There was evidence that the market price of cotton linters throughout the country was based on New York prices. The jury found a verdict for plaintiff for the value of the goods based on New York prices less transportation charges to New York, and judgment was entered on the verdict. Held, no error.</p>

<p>Mines -and mining — Leases—Construction — Share of profits — Deduction of losses — Intention—Partnership—Practice—Equity— Parties — Assignee.</p> <p>1. A mining company leased to another mining company two coal mines known as mine No. 2 and mine No. 5; the lease provides that during the life of mine No. 2, the lessee shall apply two-thirds of the net profits to the reduction of the indebtedness of the lessor; and, upon cancellation of such indebtedness, that share shall be paid to the lessor; it further provides that the net profits or earnings of mine No. 5 shall be applied, “until the payment in full of the cost of equipping, developing and putting-in condition for operation of said mine No. 5 with interest at the rate of six per cent, per annum,......to the reduction and payment thereof, the same being applied monthly so far as the same will suffice such payment or reduction. After said indebtedness is liquidated and paid in consideration of the assignment of said lease and use of the machinery and equipment of the lessor, the lessee agrees to pay to the lessor during the life of this agreement a sum equal to one-half of the said net profit derived from the operation of the said mine No. 5, and also one-half of the net profit derived from the operation of the adjoining tracts leased or purchased by the lessee in the operation of which the plant and machinery of the lessor is utilized. This sum shall be paid to the lessor quarterly in each year during the continuance of this agreement.......The amount of the profits shall be ascertained and applied as herein provided, at least once in every three months and a statement thereof rendered by the lessee to the lessor at that time and in the month of January in each year during the continuance of this agreement a full statement shall'be rendered of the entire operation and transactions hereunder up to the 31st of December preceding.” It is also agreed that the monthly and quarterly statements shall be conclusive if not audited within sixty days. It is further provided that the agreement shall not be construed as creating or attempting to create a partnership “or as imposing any of the liabilities thereof.” The lessor contended that, under the contract, upon the ascertainment of the profits for a given period, no deduction should be made for losses occurring in the preceding period, but such losses should be borne by the lessee. The lessee contended that the rule applicable to the division of profits of a partnership should be applied and losses resulting during one period should be carried over and deducted from the profits earned during a subsequent period. Held, that the rules applicable to partnership agreements did not apply; and that after the profits had been ascertained for a certain period, they could not be diminished because of losses sustained during a previous period.</p> <p>2. Where in such case the agreement required the lessor to develop and equip mine No. 5 and provide the necessary funds for that purpose and stipulated that the expenditure for said machinery and the cost of the development of the said mine No. 5 should include only labor and cost of material and personal property purchased for that purpose, and there should be no charge for general superintendent, management or supervision; and the total amount of expenditure to be made and indebtedness incurred for the purpose aforesaid should not exceed the sum of twenty-five thousand dollars, all renewals or replacements of original equipment to be charged to the cost of production; and it appeared that the mine had been fully equipped by the lessor at a cost of about $20,000, and the company later decided to re-equip the mine for operation by electrical power to be purchased from a local electric company, and abandoned its boiler house and dynamos then in use, and erected new buildings and equipment at a cost of $37,000, the entire expense of the new equipment as well as the old equipment, amounting to $57,000, could not be charged against the cost of operation in view of the limitation of expense for this purpose to $25,000; and the lower court properly so decided.</p> <p>3. Where in such case the lessor assigned its interest in the contract to an assignee, and in proceedings by the assignee to have the assignment specifically enforced, it was found by a court of bankruptcy that the lessor was insolvent at the time the transfer was made and the assignee was directed to surrender the assignment, there was no necessity for the assignee to be made a party to the proceedings.</p> <p>4. In such case, the contention that there was an earlier assignment was without merit where it appeared that such assignment had never been delivered by the assignor.</p>

<p>Appeal, No. 107, Oct. T., 1917, by defendant, from sentence of O. & T. Beaver Go., March Sessions, 1917, No. 3, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Dominic Principatti.</p> <p>Indictment for murder. Before Corbett, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree. The defendant was sentenced to be electrocuted. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p> <p>The trial judge erred in excluding evidence of the defendant concerning threats made by the deceased against him: Com. v. Lenox, 3 Brewster’s Reports 249; Com. v. Colandro, 231 Pa. 343; Com. v. Salyards, 158 Pa. 501; Com. v. Keller, 191 Pa. 122; Com. v. Curcio, 216 Pa. 380; Com. v. Hazlett, 14 Pa. Superior Ct. 351.</p> <p>The refusal to permit the defendant to state his reason for shooting was error: Com. v. Woodward, 102 Mass. 155.</p> <p>It was error to refuse to withdraw a juror and continue the case upon motion of the defendant because of the prejudicial remarks of the district attorney: Com. v. Nicely, 130 Pa. 261.</p> <p>There was no element of self-defense in this case: Com. v. Breyessee, 160 Pa. 451; Com. v. Ware, 137 Pa. 465; Com. v. Mitchka, 209 Pa. 274.</p>

<p>Appeal, No. 224, Jan. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June Term, 1915, No. 2387, on verdict for plaintiff in case of Emma M. Richardson v. Public Ledger Company.</p> <p>Trespass for libel. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $15,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence.</p> <p>The exclusion of evidence offered for the purpose of showing the condition of the home and of the children therein on April 5, 1915, was error; such evidence was relevant as tending to raise an inference as to the condition of the home nineteen days prior to that time when defendant was in charge: Marston v. Dingley, 88 Maine 546 (34 Atl. Repr. 414) ; Lohr v. Phillipsburg Boro., 165 Pa. 109; Horton v. Hall, 1 Pennypacker 159; Davidson v. Sanders, 1 Pa. Superior Ct. 432; Washington, Etc., Turnpike Co. v. Case, 80 Md. 36; Sherwood v. Titman, 55 Pa. 77; Murphy v. Prudential Ins. Co., 205 Pa. 444 ; Nophsker v. Supreme Council of The Royal Arcanum, 215 Pa. 631.</p>