Volume 280 — Pennsylvania State Reports

Appeal, No. 158, Jan. T., 1924, by G. Harlan Wells, executor of estate of Martha Scott Wells, deceased, from decree of O. C. Phila. Co., Jan. T., 1923, No. 428, dismissing exceptions to adjudication in estate of William H. Scott, deceased. At the audit, before Gest, J., the appellant claimed one-sixth of the entire residuary estate of the testator, maintaining that the proceedings to incorporate were invalid. The claim was disallowed.

<p>Appeal, No. 33, Jan. T., 1924, by defendants, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1920, No. 7564, on verdict for plaintiff, in case of Stanley W. Pearson v. Henry K. Kurtz et al., co-partners trading as Kurtz Brothers.</p> <p>Trespass for alleged unlawful conversion of securities. Before Henry, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict and judgment for plaintiff for |7,199.62. Defendants appealed.</p> <p>Error assigned was, inter alia, refusal of defendant’s motion for judgment n. o. v., quoting record.</p>

<p>Husband and wife — Marriage—Claim against decedent’s estate as widow — Evidence—Cohabitation and reputation — Meretricious relation — Presumption of continuance — Rebuttal—Circumstantial evidence.</p> <p>1. Cohabitation and reputation are not marriage, they are circumstances from which marriage may be presumed.</p> <p>2. The presumption of marriage arising from cohabitation and reputation may always be rebutted, and wholly disappears in the face of proof that no marriage in fact had taken place.</p> <p>3. Where cohabitation has been meretricious in its inception, its illicit character is presumed to continue throughout the period during which it has been maintained; this presumption may be rebutted by circumstantial evidence but the circumstances must be such as to prove satisfactorily that the relation was changed to matrimonial union by mutual consent.</p> <p>4. A claim of a woman to share in an estate on the ground that she was married to the decedent, will not be sustained by proof of cohabitation and reputation, joinder with the decedent in a conveyance, and other circumstances, where she testifies that she was never in fact married to him.</p>

<p>Equity — Forcible taking of possession — Restoration of status— Jurisdiction to determine rights in the property — Imposition of costs.</p> <p>1. One who attempts to take the law into his own hands, pending a settlement of the respective rights of the contesting parties, may lose much, but can never gain anything.</p> <p>2. Ordinarily, where there is a dispute regarding property, and one of the claimants takes forcible possession from the other, on bill in equity filed, the court should at least restore the original status, and charge the wrongdoer with all costs, expenses and damages resulting from his wrongful conduct, leaving the parties to have their rights determined at law; and this should be done although the court is of opinion that the wrongdoer has title to the property in dispute.</p> <p>3. Under such circumstances, however, a court of equity, should, at the request of the innocent party, proceed to determine the question of title also, even though, but for the other’s wrongful conduct, that question would have been cognizable in a court of law only.</p> <p>Equity — Jurisdiction—Proceedings in limine — Practice, equity —Waiver.</p> <p>4. A defendant who challenges the jurisdiction of equity must explicitly raise this issue by answer or demurrer, and have it decided in limine; if he fails in either respect, the right of trial by jury will be deemed waived by both parties.</p> <p>Easements — Right-of-way—Open and notorious possession — Sale of property — Sale for taxes — Seated or unseated land — Acts of April 8,180k, P. L. 517, and April 29, 1844, P. L. 486.</p> <p>5. A right-of-way which is open, notorious, continuous and permanent is not affected by either a public or private sale of the property over which it passes.</p> <p>6. This rule applies to a sale for taxes, whether the land burdened by the right-of-way is seated or unseated, if the taxes were assessed only against the land so burdened, and if also the right-of-way was granted, and its owner in open, notorious, continuous and permanent possession of it, before their assessment.</p> <p>Nothing in the Acts of April 3, 1804, P. L. 511, and April 29, 1844, P. L. 486, compels an opposite conclusion.</p> <p>Contract — Name—Conflict between name and language of a contract.</p> <p>7. Where a conflict exists between a name attempted to be applied to a particular contract, and the language of the contract itself, the name will be rejected and the agreement enforced as written'.</p> <p>8. Where two things are of the same nature, and influence a property in exactly the same way and to the same extent, the law will recognize no difference in their legal incidents, as affecting that property, merely because they have different names, or one has no designation whatever.</p> <p>Equity — Accounting—Damages—Final decree — Practice, equity.</p> <p>9. Where plaintiff seeks in equity a decree sustaining his right to property forcibly taken from him, an accounting for the resulting damages should not be had until after final decree determining defendant’s liability for them.</p>

<p>Negligence — Damages—Recovery over from one 'primarily liable —Costs and expenses of suit — Notice of suit — Appeal—Objection not raised below.</p> <p>1. Where one has been compelled to pay damages for a default arising out of the wrongful act of another, and has incurred costs and expenses to protect his interests, such costs and expenses should be treated as legal consequences of the original wrongful act.</p> <p>2. If one entitled to indemnity intends to use as evidence, in a future action to enforce his right, the judgment which may be rendered against him in a pending suit for damages, and thus to prove his loss, he must give the person to whom he looks for recompense reasonably “definite, certain and direct” notice of the pending suit, so the latter may defend it, or join in the defense, should he see fit so to do.</p> <p>3. If notice of such kind is not given, then, in a subsequent proceeding to obtain indemnity, the plaintiff must establish his claims for damages without reference to the amount of the judgment in the prior action against him.</p> <p>4. If the defendant at the trial takes the position that, as no notice was given, plaintiff can recover nothing, and makes no objection that proofs of defendant’s wrongdoing had not been shown in a proper manner, it is too late after a judgment against him to make such objection on appeal.</p> <p>5. The same rule applies to a claim compromised and settled out of court by plaintiff, where plaintiff subsequently sues the wrongdoer for indemnity.</p> <p>Appeals — Assignments of error — General points.</p> <p>6. An assignment of error embracing several points is improper.</p>

Appeal, No. 202, Jan. T., 1924, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1923, No. 537, for defendant on affidavit of defense by way of demurrer, in case of William F. Seaman v. Tamaqua National Bank. Assumpsit to recover portion of deposit evidenced by letter of credit. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Supreme Court states the facts. Rule discharged in opinion by Bechtel, P. J., Koch, J., dissenting.

<p>Attorneys-at-law — Retention of client’s money — Trial by jury— Disbarment — Act of April 14, 188b, P. L. 333.</p> <p>1. An attorney-at-law accused of withholding money belonging to a client, is not entitled to a jury trial, except where there is an honest dispute between himself and his client as to the amount due for fees.</p> <p>2. The rule that the findings of fact by the court below based upon sufficient evidence will not be reversed on appeal, applies with peculiar force in a proceeding to compel an attorney-at-law to pay over moneys due to his client.</p> <p>3. In making absolute a rule on an attorney to pay over moneys due his client, the court may also order his disbarment, if it finds upon sufficient evidence that he was guilty of bad faith, overreaching, fraud or dishonesty.</p> <p>4. Aside from the general powers of the court in such a matter, the Act of April 14, 1834, section 74, P. L. 333, makes it the duty of the court to strike from the roll of attorneys any one who shall retain money belonging to a client, after demand.</p>

<p>Wills — Construction of — Buies of grammar — Intention—Intestacy — Surplusage.</p> <p>1. While the rules of grammar are to' be considered in construing a will, they are of little or no moment if they conflict with the testator’s intention, as appearing in the language used by him.</p> <p>2. An interpretation will not be adopted, if it results in an intestacy, unless such a conclusion is unavoidable.</p> <p>3. Unless no other conclusion is reasonably possible, an interpretation will not be adopted which makes any of the provisions of a will mere surplusage.</p>

Appeal, No. 314, Jan. T., 1924, by Jacob E. Schmidt, as administrator and surviving husband and heir of Elizabeth Schmidt, from decree of O. C. Berks Co., April T., 1923, No. 4, dismissing exceptions to adjudication, in estate of Catharine Deeter, deceased. Exceptions to adjudication. Before Schaeffer, P. J. The opinion of the Supreme Court states the facts. Exceptions dismissed. Jacob E. Schmidt, administrator of Elizabeth Schmidt, appealed.

<p>Corporations — Preferred stoch — Merger — Dissolution—Amortizement of under valued securities — Costs.</p> <p>1. Where a contract between, a corporation and its preferred stocHiolders provides for preference dividends, and that, on dissolution, the preferred stock without voting power shall be first paid at its par value, in preference to the common stock, out of the assets of the company, and the common stockholders bring about a merger with other corporations, the merger works a dissolution, and the preferred stockholders are entitled to full payment for their shares out of the assets of the company, and not payment at market value. Reproduction costs are adfuissible in finding value.</p> <p>2. From the circumstance that stock in the new company was given to common stockholders of the old in exchange for their shares, the conclusion could be drawn that the assets of the merging company were sufficient to pay the preferred stockholders par for their shares; otherwise the common stockholders would have been entitled to nothing on the merger.</p> <p>3. Where the common stockholders, through the control of the company, do not pay dividends on the preferred stock, but divert the earnings of the company to the amortization of the difference between the hook values and the supposed real values of securities acquired by .the company at the time it was organized, and the result is greatly to lessen the market value of the preferred stock, the preferred stockholders, on the merger of the company with other corporations, are entitled to he paid out of assets, the full par value of their stock.</p> <p>4. In such case, the attempt to amortize the value of securities owned, which, if the account remains unchanged, in no way depletes the capital, by retaining net earnings, is a breach of the contract with the preferred stockholders.</p> <p>5. *t£ the preferred stockholders are compelled to resort to litigation tó establish their rights, the costs thereof should be imposed upon the corporation.</p> <p>6. The Merger Act of May 3, 1909, P. L. 408, does not apply here.</p> <p>Equity — Practice, equity — Ghancellor’s findings of fact.</p> <p>7. The rule that the findings of a chancellor approved by the court below are entitled to the same weight as the verdict of a jury, is especially applicable where such findings are the result of an investigation of the business affairs of a manufacturing corporation.</p>

Appeal, No. 219, Jan. T., 1924, by defendant, from decree of C. P. No. 5, Phila. Co., March T., 1920, No. 6398, for plaintiffs on bill in equity, in case of Frederick J. Petry et al. v. Harwood Electric Co. Bill for accounting and for payment of dividends on preferred stock. Before Martin, P. J. The opinion of the Supreme Court states the facts. Decree for plaintiffs. Defendant appealed. Error assigned was, inter alia, decree, quoting it.

<p>Negligence — Railroads—Master and servant — Rish of employment — Flagman—Operating train around blockade — Notice—Non-suit.</p> <p>1. An employee assumes, as a risk of his employment, such dangers as are normally and necessarily incident to his occupation.</p> <p>2. A workman of mature years is taken to assume such risks whether he is aware of their existence or not.</p> <p>3. A flagman who is detailed from a blockaded train on a southbound track, to go to the rear and flag trains that may come south on either the south- or northbound track, assumes the risk of danger on both tracks and if he is killed by a train running south on the northbound track, no recovery can be had for his death.</p> <p>4. A railroad company is not negligent because it does not notify employees of its purpose to operate trains against traffic around a blockade.</p> <p>5. The fact that an engine may not be able to stop before it reaches a flag, is a risk assumed by a flagman.</p>

Appeal, No. 3, Jan. T., 1924, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1922, No. 926, discharging rulé for judgment for want of sufficient affidavit of defense, in case of Belardo Mancia or Belardo Mancia or Mancini v. Marquette National Fire Insurance Co. Assumpsit on a fire insurance policy. Rule for judgment for want of a sufficient affidavit of _ defense. Before Maxey, J. The opinion of the Supreme Court states the facts. Rule discharged.

<p>Principal and agent — Findings of fact — Appeals.</p> <p>1. A finding by tbe court below on sufficient evidence that an agency in fact existed, will not be reversed on appeal, where no error is shown.</p> <p>Bailment — Assignment of lease — Conduct of bailor — Deception of public — Estoppel.</p> <p>2. Where the owner of a chattel so clothes another with apparent ownership, or authority to act, as to mislead or deceive the public, an estoppel may arise against the owner in favor of an innocent purchaser of the chattel.</p> <p>3. Where the bailor of a truck assigns a lease thereof to an agent, and the latter places the truck on exhibition in his sales room, such exhibition will not in itself estop the bailor from asserting title, but this fact, with proof of agency, will be sufficient to protect an innocent purchaser of the truck.</p> <p>Referees — Findings of fact — Conclusions—Exceptions.</p> <p>4. While a referee’s findings of fact are in general as conclusive as the verdict of a jury, yet where it,appears from the referee’s own findings that he has omitted consideration of certain elements of a decisive nature, the court on exception may consider such elements, and the evidence in relation thereto, and from them make its own findings.</p> <p>5. Where the facts found by a referee are mere deductions from undisputed testimony, they are given no greater weight than findings of law.</p> <p>6. The court may inquire into the evidence where it is apparent the referee failed to find pertinent facts, not because he did not believe the witnesses, but because he deemed the facts testified to by them immaterial.</p> <p>Replevin — Damages—Improper amount — Modification of judgment.</p> <p>7. On an appeal from a judgment in replevin for a truck, the amount of the judgment will be reduced by the appellate court, where it appears that a finding for probable use or profits, included as damages in the judgment, was not sustained by the evidence.</p>

Appeal, No. 85, Jan. T., 1924, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1919, No. 645, refusing to take off nonsuit in case of Mary Drabant v. John W. Cure. Trespass for wrongful sale of plaintiff’s goods. Before Newcomb, J. Tbe opinion of tbe Supreme Court states tbe facts. Nonsuit; refusal to take off. Plaintiff appealed. Error assigned was order, quoting it.

<p>Public officers — Tax collectors — Reports of auditors — Notice of proceedings — Constitution—Due process of law.</p> <p>1. While courts will not be astute in seeking for defects in proceedings against public officials, especially against tax or revenue collectors, yet such proceedings, however summary, must be based upon notice to the alleged defaulting party, who must be given an opportunity to be heard, otherwise the constitutional guarantee of due process of law will be ignored.</p> <p>2. A judgment against a borough tax collector on surcharges against him, will be reversed, where it appears that the collector was not notified of the proceedings against him on appeal from the report of the controller, that he was not brought upon the record as a party by notice, citation or otherwise, that he was not notified of the time when the case would be heard in court, and that he was not present at the hearing.</p> <p>3. In such case, the return of a constable showing that notice of the time and place of taking depositions was served upon the collector, is immaterial, where there was nothing in the notice or in the record to show that he was interested in the appeal.</p> <p>Public officers — Tax collector — Warrants—Exonerations—Abatements — Jurisdiction of borough council — Act of June 25, 1885, P. L. 187 — Words and phrases.</p> <p>4. A borough council has the right under the Act of June 25, 1885, P. L. 187, to grant exonerations from taxes in relief of a tax collector.</p> <p>5. Words “exonerations” and “abatements” in tax statutes are interchangeable.</p> <p>6. A collector is not liable for failure to collect a tax, which the taxing authority has abated. The presumption is that the authorities acted within the scope of their powers.</p> <p>7. In such case, if the taxing authority has acted illegally, the remedy is against the members thereof, or by proceedings to restrain or set aside the illegal acts.</p> <p>8. That a tax collector’s warrant or bond may require him to collect all the taxes on his duplicate does not render him liable for what the taxing power remits.</p>

<p>Appeal, No. 82, Jan. T., 1924, by plaintiff, from decree of C. P. Montgomery Co., Nov. T., 1922, No. 9, dismissing bill in equity, in case of C. S. Newhall et al. v. Norristown Trust Co.</p> <p>Bill for discovery and accounting. Before Stewart, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiffs appealed.</p> <p>Error assigned was decree, quoting record.</p>

Appeal, No. 317, Jan. T., 1924, by defendant, from decree of C. P. Montgomery Co., April T., 1923, No. 7, on bill in equity, in case of William H. Slingluff et al. v. Daniel L. Tyson. Bill for injunction. Before Miller, P. J. The opinion of the Supreme Court states the facts. Decree for plaintiff. Defendant appealed. Error assigned was, inter alia, decree, quoting it.

<p>Equity — Equity practice — Amendment—Parties—Death of party —Abuse of discretion of court — Vendor and vendee — Act of May k, 186k, P. L. 776.</p> <p>1. Section 2 of tbe Act of May 4,1864, P. L. 776, expressly gives tbe right to amend pleadings in-equity, and the death of one of the parties is not sufficient reason for refusing that right to the other.</p> <p>2. The rules regarding amendments are the same in equity as at law.</p> <p>3. A plaintiff may amend his bill if he so stated his cause of action originally as to show he had a legal right to recover what he subsequently claims.</p> <p>4. A very clear abuse of discretion would have to be shown to justify an appellate court in reversing a decree, because the chancellor had allowed an amendment and granted a continuance.</p> <p>Vendor and vendee — Tender—Acquisition of money by vendor after date of contract — Right of vendee in such fund — Condition —Waiver.</p> <p>6. A purchaser of real estate in making a tender required by his contract, has a right to insist that the vendor shall apply, on account of the tender, a sum of money in his hands, but belonging to the purchaser, if it became due in the course of a transaction begun after the contract of purchase, and if also the result of holding otherwise would be a forfeiture of the vendee’s property for the benefit of the vendor.</p> <p>6. Even though a tender must be made in strict compliance with the contract of purchase, it is not invalidated because of a condition which the tenderer imposes, if he had a right to insist upon that condition, and the vendor could not reasonably object to it.</p> <p>7. Where a vendor does not object to the amount and character of a tender, at the time it is made, he will not afterward be permitted to do so if it is then too late to make a better tender.</p> <p>Equity — Specific performance — Vendor and vendee — Laches.</p> <p>8. A bill for specific performance will not be dismissed on the ground of laches, if it is promptly filed after the time when the vendor can actually comply with the agreement of sale.</p>

Appeals, Nos. 175-8, from orders of C. P. Northampton Co., June T., 1922, Nos. 55 and 56, June T., 1922, discharging rules to set aside sheriff’s sale, in cases of D. D. Wagener et al. v. Peter F. Yetter, and Superior Albion Slate Co., and D. D. Wagener et al. v. George H. Wise, and Bangor Trust Co., petitioner. Rules to set aside sheriff’s sales. Before McKeen, J. The opinion of the Supreme Court states the facts. Rules discharged. Defendants appealed.

<p>Appeal, No. 117, Jan. T., 1924, by plaintiffs, from judgment of C. P. Sullivan Co., Sept. T., 1919, No. 6, for defendant on case tried by the court without a jury, in case of Blanche W. Sturdevant and P. P. Sturdevant, Trustees for the devisees of George D. Jackson, deceased, and Blanche W. Sturdevant, administratrix d. b. n. c. t. a. of George D. Jackson, deceased, v. Rush J. Thomson, surviving administrator and trustee of the estate of Josiah Jackson, deceased.</p> <p>Sheriff’s interpleader to determine title to culm. Before Smith, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was, inter alia, judgment, quoting it.</p>

<p>Appeal, No. 326, Jan. T., 1924, by plaintiffs, from decree of C. P. No. 2, Phila. Co., Dec. T., 1923, No. 3709, dismissing bill in equity, in case of Rose M. Harrity, trustee under will of William P. Harrity, deceased, and Martha A. Kelley, widow of John A. Kelley, deceased, and John A. Kelley, Jr., son of John A. Kelley, deceased, both being trustees of the estate of John A. Kelley, deceased, v. Continental-Equitable Title & Trust Co., and George Williams.</p> <p>Bill to enjoin sale of real estate. Before Stern, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed. Plaintiffs appealed.</p> <p>Error assigned was, inter alia, decree, quoting it.</p>

<p>Appeal, No. 290, Jan. T., 1924, by defendants, from judgment of C. P. No. 5, Phila. Co., June T., 1923, No. 573, affirming decision of Workmen’s Compensation Board, in case of Mary McDonnell v. Michael Mahedy and Maryland Casualty Co.</p> <p>Appeal from decision of Workmen’s Compensation Board, confirming award of referee. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision affirmed. Defendants appealed.</p> <p>Error assigned was, inter alia, judgment, quoting it.</p>

Appeal, No. 10, Oct. T., 1924, by defendant, from judgment of C. P. Butler Co., Dec. T., 1923, No. 11, on verdict for plaintiff, in case of R. C. Little, doing business as the Bessemer Motor Truck Co. of Pittsburgh, v. The Bessemer Motor Truck Co., a corporation. Assumpsit for commissions on sales. Before Briber, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $8,052.

<p>Appeals, Nos. 286 and 287, Jan. T., 1924, by defendant, from decrees of C. P. No. 2, Phila. Co., June T., 1923, Nos. 3682 and 3683, in cases of Eldridge R Johnson and Eldridge Johnson MacEwan v. Provident Trust Co. of Philadelphia, and Eldridge Jolmson and George Fenimore MacEwan v. Provident Trust Co. of Philadelphia.</p> <p>Bills to terminate trusts. Before Gordon, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decrees for plaintiffs. Defendant appealed.</p> <p>Errors assigned were decrees, quoting them.</p>

<p>Wills — Construction—Income—Tested or contingent interest in income.</p> <p>1. A gift of income until a fixed time is reached will be held to be vested where the words of the will showed that such is the clear intention of the testator.</p> <p>lies judicata — Same question — Different parties — Wills.</p> <p>2. A decree of a court construing a will is not res judicata as to a later proceeding where identically the same question is raised, but the parties are different.</p> <p>Appeals — Practice—Wills—Construction—Intervening parties— Decree — Assignments of error.</p> <p>3. The Supreme Court will not consider the rights of parties desiring to intervene save those expressly brought before the court by the assignments of error.</p>

Appeal, No. 315, Jan. T., 1924, by plaintiff, from decree of C. P. No. 4, Phila. Co., Sept. T., 1922, No. 3372, dismissing bill in equity, in case of Aubrey W. Marchand v. Jésse C. Marsh and John Doughty. Bill in equity for partition.- Before McCullen, J. The opinion of the Supreme Court states the facts. Bill dismissed. Plaintiff appealed. Error assigned was, inter alia, decree, quoting it.

<p>Attorney-at-law — Disbarment—Reinstatement — Supreme Court —Jurisdiction—Rules of court.</p> <p>1. Where an attorney-at-law has been disbarred, and his disbarment sustained on appeal, he cannot thereafter petition the Supreme Court to reinstate him.</p> <p>2. Under Rule 17 of the Supreme Court, a petition to reconsider the facts on which a disbarment has been ordered, must be made in the court which found such facts.</p>

<p>Wills — Construction—Life estate — Death in lifetime of testator ■ — Precedents—Intention.</p> <p>1. Precedents are of little value in the construction of wills, because, when used under different circumstances, and with different context, the same words may express different intentions. .</p> <p>2. Where the actual intent of the testator can be fairly gathered from the words used, the fact that another testator has employed like words with a different meaning is of no avail.</p> <p>3. In determining whether a testator intended to give a fee or a life estate, all the words used by him should be taken into account, and if the intent to restrict the gift is clear, it must be given effect.</p> <p>4 The rule of construction whereby a devise over in event of the death of first takers, is understood to mean death occurring in the lifetime of the testator, never applies where the first takers referred to are treated as living at a period subsequent to the death of the testator.</p> <p>5. Where a testatrix leaving a son and daughter as her sole heirs at law directs that she wants all of her estate given to the son and daughter, equally divided between them, and that “at the death of either, the money to go to the remaining child unless my son should marry and have children then his part to go to his family, if they both die without children” or the son remains single, then “it is for them to decide which charity shall have it,” naming two charities, and by other parts of the will she directs the daughter to give away her clothing, and both legatees to pay a legacy of an amount named to their aunt for life, the two children take a life estate and not a fee.</p> <p>6. The will indicated that testatrix intended to provide for what should happen to her estate on the death of her children after her own decease, and not merely during, her life.</p> <p>7. In such case it is proper for the court to direct security to be entered by the life tenants, to protect remaindermen; but the court need not, in the proceeding before it, pass upon the question as to who the remaindermen are, or their interests.</p>

<p>Husband and wife — Conveyance by husband to wife — Gift—Presumption— Trust and trustees — Secret trust — Reconveyance — Equity — Findings of fact — Evidence■—Declarations.</p> <p>1. Where a husband purchases real estate in the name of his wife, the presumption of a gift to her exists, and not a presumption that she is to hold the property in trust for him.</p> <p>2. The burden of overcoming the presumption of a gift is upon the husband.</p> <p>3. The fact that the premises conveyed were in joint occupation of the husband and wife, has no significance against the wife’s claim that the conveyance was a gift, inasmuch as the presumption is that the occupancy was in subordination to the record title.</p> <p>4. Declarations made by a wife that property conveyed to her by her husband really belonged to her husband, and that she was willing to reconvey it to him, are insufficient to establish a trust, where such declarations were made subsequent to the conveyance.</p> <p>5. A gratuitous gift of realty during marriage, made by a husband to a wife is not in law impliedly limited to the duration of the marriage.</p> <p>6. On a bill in equity by a husband against his wife to compel a reconveyance to him of real estate which he had deeded to her, a finding that the title was placed in the wife’s name to protect it against claims that might arise out of the husband’s business, is not inconsistent with a finding that the conveyance was a gift to the wife.</p> <p>7. There is no inconsistency between the two findings, because the only way in which the property could be protected against claims growing out of the husband’s business, would be by an outright gift to the wife; the law will not presume a fraudulent device or secret trust.</p> <p>8. A finding of fact by a chancellor that a conveyance by a husband to a wife was a gift, if supported by an answer and sufficient evidence, will not be reversed on appeal.</p>

<p>Appeal, No. 292, Jan. T., 1924, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1921, No. 6404, on verdict for plaintiff, in case of William and Lena Weiss v. London Guarantee and Accident Co., Ltd.</p> <p>Assumpsit on policy of burglary insurance. Before McDevitt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiffs for $6,558.50. Defendant appealed.</p> <p>Errors assigned were instructions, appearing by opinion of Supreme Court, quoting record.</p>

<p>Appeal, No. 171, Jan. T., 1924, by plaintiff, from judgment of C. P. Wyoming Co., June T., 1923, No. 20, affirming decision of Workmen’s Compensation Board, refusing award, in case of Anna Thomas v. State Workmen’s Insurance Fund and Awixa Corporation.</p> <p>Appeal from decision of Workmen’s Compensation Board which affirmed finding of referee, refusing award. Before Terry, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Decision affirmed. Claimant appealed.</p> <p>Error assigned was, inter alia, decree, quoting record.</p>

<p>Negligence — Defect in county bridge — Duty of inspection — Latent defect — Engineers—Notice—Opinion of experts — Nonsuit.</p> <p>1. While it is the duty of county officers to keep bridges under their control in proper and safe condition, yet, when it appears they have exercised due effort to perform the duty imposed on them, the county should not be charged with liability for damages when an unfortunate, and not reasonably to be expected, accident occurs.</p> <p>2. Where a county bridge has been in use for more than thirty years, failure to take proper care cannot be rested on the original manner of design or building, if there is no evidence to show that the plan followed was so defective as to make its adoption an act of negligence.</p> <p>3. It is the duty of county commissioners to make personal inspection of county bridges, so that they may be kept in safe condition, and to employ competent engineers for that purpose.</p> <p>4. When defects are brought to -the attention of the commissioners, necessary changes must be made, and the highway closed in the meantime if there is apparent danger!</p> <p>5. If the defects are observable by reason of exterior marks, steps • must be taken immediately to protect the traveling public.</p> <p>6. If the flaw is hidden, the measure of care required is that which ordinarily prudent men would be expected to exercise in the management of their own affairs,</p> <p>7. Where an a'ccident is the result of a latent fracture in a bridge, the county is not to be held liable, unless the officers had actual notice of the threatened danger, and made no effort to prevent injury.</p>

<p>Appeal, No. 291, Jan. T., 1924, by defendant, from judgment of C. P. No. 1., Phila. Co., Sept. T., 1919, No. 5248, on verdict for plaintiff, in case of Robert Eckert v. Merchants Shipbuilding Corporation.</p> <p>Trespass for personal injuries. Before McDevitt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $12,000, on which judgment was entered for $6,000. Defendant appealed.</p> <p>Errors assigned were various instructions and refusal of judgment for defendant n. o. v., quoting record.</p>

<p>Appeals, Nos. 238-246, by Franklin D. Edmunds et al., from decrees of C. P. Del. Co., June T., 1921, Nos. 240, 243 and 246, on bills in equity in cases of Franklin D. Edmunds et al. v. John T. Duff, Jr., Willow Grove Park Company and Phila. Rapid Transit Co.</p> <p>Bills for injunction to restrain erection of amusement park. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The plan below shows the locality.</p> <p>Decree for plaintiff. Defendants appealed.</p> <p>Errors assigned were, inter alia, (59) decree, quoting it, and (61) refusal of change of venue, quoting record.</p> <p> </p>

<p>Appeal, No. 340, Jan. T., 1924, by defendant, from judgment of O. & T. Phila. Co., Oct. T., 1923, No. 470, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Mattie Jones.</p> <p>Indictment for murder. Before McDevitt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree, on which sentence was passed. Defendant appealed.</p> <p>Errors assigned were rulings on evidence referred to in the opinion of the Supreme Court, quoting record.</p>

Appeal, No. 338, Jan. T., 1924, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1922, No. 8608, on verdict for defendant, in case of Charles C. Cresson v. North American Company. Trespass for libel. Before Monaghan, J. The opinion of the Supreme Court states the facts. Judgment on directed verdict for defendant. Plaintiff appealed. Error assigned was, inter alia, directed verdict for defendant, quoting record.

Appeal, No. 157, Jan. T., 1924, by plaintiffs, from order of C. P. No. 4, Phila. Co., Dec. T., 1916, No. 1950, refusing to take off nonsuit, in case of Julius C. Paturzo et al., trading as the Arpat Trading Company v. Alexander C. Ferguson et al., trading as Ferguson Brothers. Assumpsit for breach of contract. Before Finletter, J. The opinion of the Supreme Court states the facts. Nonsuit; refusal to take off. Plaintiffs appealed. Error assigned was, order, quoting record.

Appeal, No. 12, May T., 1924, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket, 1923, No. 751, dismissing bill in equity, in case of Valley Railways v. City of Harrisburg, George A. Hoverter, Mayor, and Joseph Thompson, Chief of Police. Bill to restrain enforcement of a municipal ordinance. Before Hargest, P. J. The opinion of the Supreme Court states the facts. Bill dismissed: 26 Dauphin Co. R. 272; 12 Pa. Corp. R. 201. Plaintiff appealed.

<p>Appeals — Assignments of error — Equity—Findings of fact — Final decree — Question not raised below — Effect of findings.</p> <p>1. Tbe act of tbe court below in an equity suit commanding action, and one that must always be assigned as error on appeal, is tbe final decree.</p> <p>2. Unless the final decree is assigned, there is not only no record in tbe appellate court on wbicb to .base a decree of reversal, if tbe case requires such action, but there is also nothing to reverse.</p> <p>3. Tbe findings of fact and conclusions of law on wbicb tbe final decree is based are tbe necessary elements to sustain tbe decree.</p> <p>4. If tbe chancellor is -mistaken in any of tbe findings either of law or fact, tbe overruling of exceptions thereto should be assigned as error.</p> <p>5. The assignment of tbe final decree does not permit consideration of all manner of alleged errors in findings, conclusions, admission of evidence, and tbe like.</p> <p>6. Should tbe'final decree only be assigned tbe findings of fact are admitted.</p> <p>7. Trial errors and mistaken findings or conclusions must be separately assigned.</p> <p>8. Questions not raised in tbe lower court will not be considered on appeal.</p> <p>9. Findings of fact by a chancellor have tbe effect of a verdict of a jury, and will not be disturbed on appeal where there is evidence to support them.</p> <p>Equity — Specific performance — Option — Acceptance of option —Tender or payment of purchase money — Vendor and vendee— Corporations — Fraud—Knowledge of agents.</p> <p>10. Where an option to purchase real estate does not require payment of tbe purchase money at'the time of tbe acceptance of tbe option, tender or payment of tbe money is not required when tbe option is accepted; payment must be made within a reasonable time thereafter.</p> <p>11. Where an option is accepted in writing with additional terms, tbe optioner may reject tbe acceptance, but, if be fails to do so, be is bound by tbe acceptance as written.</p> <p>12. Where an option given by a corporation is accepted in writing with alleged additional terms, tbe fact that tbe corporation prepared and actually executed a deed for delivery, is evidence bearing on the fact that the acceptance of the option as written was not rejected.</p> <p>13. Where a vendor wrongfully sells a property, after the acceptance of an option on it, a subsequent tender of the purchase money by the optionee is futile and unnecessary.</p> <p>14. Where a corporation gives an option to purchase land, and ■the optionee accepts the same, and such acceptance is not rejected, the corporation cannot thereafter, by alleging fraud committed upon it by the purchaser’s agent, refuse conveyance, where the court finds as a fact that the refusal-was based not so much on the misrepresentation of the agent as on an opportunity to sell the land to another party at an enhanced price.</p> <p>15. All the more will the court decree specific performance in such case where it appears that the record purchaser was a new corporation composed of the parties interested in the old one, with two figureheads.</p> <p>16. When individuals or corporations transfer their property to a new corporation, substantially owned and controlled by the transferers, the new corporation takes the property subject to the rights of persons who have claims against the transferers.</p> <p>17. If one makes a contract to sell real property, but conveys it to another than the original vendee, the original vendee can obtain specific performance from the one to whom the conveyance was made, if such grantee took with knowledge of the contract.</p>

<p>Gamers — Common carriers — Railroads — Bills of lading— Freight — Transportation charges — Foreign currency — Rate of exchange — Tariff rate — Interstate Commerce Commission — Judgment — Sterling currency.</p> <p>1. One who, through the assignment to him of a bill of lading, receives property which had been shipped thereon, thereby binds himself to the payment of the freight charges established by law, or fixed by the terms of the bill of lading.</p> <p>2. The assignee of bills of lading upon which are endorsed conditions as to the rate of exchange applicable to the payment of ocean freight charges, in accepting assignment of such bills and using them to obtain the goods, obligates himself to pay the charges at the rates indicated.</p> <p>3. The mere fact that freight charges are stamped in pounds, shillings and pence at the point of shipment in a British dominion does not give rise to a contract that they were to be paid in that currency in a foreign country.</p> <p>4. Even if such charges were stamped thereon after the execution of the bill of lading, and are on such bill when presented to the assignee, they add nothing to his burden.</p> <p>5. An exchange of currency or the rate of exchange determines the purchasing power or the equivalent of the currency of one country as measured by or in the currency of another.</p> <p>6. When the rate is established by contract or otherwise it is a fixed rate and controls all matters brought within the scope of the operation.</p> <p>7. To honor in full a bill of lading on which the charges are specified in pounds, shillings and pence with the words stamped thereon, “Freight if payable at destination to be at the rate of $4,866, exchange,” there must be sufficient American currency or number of dollars required by the fixed exchange rate to purchase, or be equivalent to, the sterling named in the bill; such payment does not increase the charges named.</p> <p>8. Any uncertainty in the words “if payable at destination,” relates to the place where payable, and not the specie in which payable.</p> <p>9. If payment were made, in such case, on the basis of the current rate of exchange, and the shipment would be for a less sum than fixed by the tariffs filed with the Interstate Commerce Commission, the payment would be unlawful.</p> <p>10. American courts cannot give judgment in sterling currency.</p> <p>Accord and satisfaction — Receipt "in full settlement" — Payment of a less amount — Freight charges — Tariff rate — Carriers—Interstate Commerce Act of August 29,1916, 39 Stat. 638 — Rates—Contracts — Chech—Payment in full.</p> <p>11. The mere assertion that a bill is not correct is not a basis of fact to support an accord.</p> <p>12. Nor is the mere acceptance of a smaller amount an accord and satisfaction.</p> <p>13. Where a check is intended to be a full payment, it should be accompanied by such words as will indicate to the party to whom it is sent that it is intended to be relied upon as a complete satisfaction of the account.</p> <p>14. A receipt given by a railroad company in full settlement on a bill for freight charges is not an accord and satisfaction, where the amount accepted is at a lower rate than that specified in the bill of lading, and at a lower rate than the tariffs filed.</p> <p>15. Contracts in violation of the Interstate Commerce Act of August 29, 1916, 39 Stat. 538, are void.</p> <p>16. When dealing with rates, the carrier is not estopped from asserting the legality of the Interstate Commerce Act and the illegality of payments by shippers which would be in contravention of the act.</p>

<p>Appeal, No. 289, Jan. T., 1924, by plaintiff, from decree of C. P. No. 2, Phila. Co., Dec. T., 1922, No. 8409, dismissing bill in equity, in case of Irving Bank, New York, v. Henrietta P. Alexander; the said Henrietta P. Alexander, Julian Alexander, Maurice Bower Saul and. the Pennsylvania Company for Insurances on Lives and Granting Annuities, Executors of will of Charles O. Alexander, deceased, and the said Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee.</p> <p>Bill to recover proceeds of policy of insurance. Before Gordon, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Bill dismissed on demurrer. Plaintiff appealed.</p> <p>Error assigned was, inter alia, decree, quoting it.</p>

<p>Contract — Sale of goods — Refusal to accept — Meaning of words —Intention—Rescission—Assent—Retahing possession — Delay.</p> <p>1. While the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts, the basis on which such imputation is founded must not admit of any other reasonable conclusion.</p> <p>2. Where an inference may be drawn from words and acts consistent with an established right, such inference should prevail.</p> <p>3. Where a buyer of goods refuses to accept them, and claims that the seller assented to the repudiation, he must show either a mutual agreement, or facts conclusive that an assent existed.</p> <p>4. Retaking possession of the goods by the seller without comment, standing alone, is not sufficient to justify the court in declaring as a matter of law an assent to repudiation had been conclusively shown.</p> <p>5. The mere retaking possession of the refused goods, even if the seller had to pay out money to secure the repossession, is compatible with good business practice to minimize loss in the protection of the perishable article.</p> <p>6. Assent to cancellation of a contract is a question of intention, and whether it exists, is ordinarily for the jury.</p> <p>7. Mere delay in enforcing a claim for goods sold does not affect the right of action.</p> <p>8. After a seller has retaken goods which the buyer has wrongfully refused to accept, the seller is under no obligation to make further tender or attempt to deliver; he is not required to do a vain and useless thing.</p> <p>Contract — Sales—Breach—Refusal to accept by buyer — Remedies of seller — Damages—Measure—Market price — Place and time —Minimizing loss.</p> <p>9. Where a buyer wrongfully refuses to accept goods, the seller may stand on the contract and sue for the balance of the purchase money.</p> <p>10. Or he may retake the goods, sell them for the best price obtainable, and sue for the damages.resulting from the buyer’s repudiation, but he must minimize the loss which might be sustained.</p> <p>11. The measure of damages when the buyer repudiates the contract, is the difference between the contract price, and the market price at the time and place of delivery.</p> <p>12. The seller, cannot, in an open market for a commodity largely demanded, by single private resales, determine market value, and so combine actual loss with market value to make out a case.</p> <p>13. The price obtained on a private resale within a reasonable time after the breach of contract, may in certain cases be regarded as evidence of market value in the absence of other evidence as to an available market or market price; but then it must appear that the seller used reasonable efforts to obtain the best price and that it was fair.</p> <p>14. Where a sales contract provides for a “market price at shipment dates” and at a place specified, the jury cannot fix the damages for breach from a sale made subsequent to the date of shipment, and based on prices in a market different from that contracted for.</p>

<p>Appeal, No. 56, Jan. T., 1925, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1922, No. 62, for defendant in case tried by court without jury, in suit of Frank W. Jackson, Assignee in trust for creditors of Paul Sturtevant et al., doing business as the Bank of Conneautville, and individually, v. School District of the Borough of Conneautville.</p> <p>Assumpsit on promissory notes.</p> <p>Trial by court without jury. Before Prather, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was, inter alia, judgment, quoting record.</p>