Volume 53 — Pennsylvania Superior Court Reports

<p>Appeals — New trials — Discretion of lower court — Inadequacy of damages.</p> <p>1. No mere difference of opinion, nothing short of a clear conviction compelled by the evidence, that the jury must have been influenced by partiality, passion or prejudice, or by some misconception of the law or the evidence, will justify an appellate court in declaring that the trial court was guilty of abuse of discretion in refusing a new trial for inadequacy of damages, where neither the evidence in the particular case nor the law applicable thereto furnished any definite standard by which they might be measured, amd the jury had no other guide in arriving at the amount to be awarded but pure conjecture.</p> <p>2. Where in an action for personal injuries, the charge of the trial judge on the subject of damages is full, clear' and adequate and is not complained of, the appellate court will not consider excerpts from the charge relating to the subject of negligence and contributory negligence as grounds for reversing the judgment and granting a new trial, where it appears from the charge as a whole and the context immediately connected with the excerpts, that such excerpts could not have influenced the jury on the question of damages.</p> <p>3. Where in an action to recover damages for injuries to plaintiff’s hand the verdict is for $300 for the plaintiff, a minor, and $75.00 for his father, the appellate court will not grant a new trial on the mere ground that the trial court had abused its discretion in refusing a new trial.</p>

<p>Appeal, No. 256, Oct. T., 1912, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1912, No. 56, for defendant on case tried by the court without a jury in suit of John W. Clark v. Lower Providence Township School District.</p> <p>Appeal from report of township auditors, by John W. Clark, treasurer of school board.</p> <p>The case was tried by Weand, J., without a jury under the Act of April 22,1874, P. L. 109.</p> <p>The court filed an opinion finding the facts and law as follows:</p> <p>FINDINGS OF FACTS.</p> <p>1. Samuel G. Reiff was treasurer of the school district of Lower Providence township, Montgomery county, from June, 1911, to December, 1911, when the new board, elected in November, 1911, organized under the Act of May 18, 1911, P. L. 309.</p> <p>2. At the time of his election as treasurer and the fixing of his compensation he was • also a school director.</p> <p>3. His compensation was not fixed until the summer of 1911 and also agreed upon at the meeting of the auditors. At this meeting all the directors were present, at least part of the time, and agreed upon his compensation, viz.: $202.43; and the auditors thereupon found that amount to be due him. This was at the same rate as had previously been allowed former treasurers, and we find it to be reasonable.</p> <p>4. No resolution fixing the treasurer’s compensation appears on the minutes of the proceedings of the board of directors; nor was any order drawn in the treasurer’s favor.</p> <p>5. The treasurer retained $202.43, his compensation as agreed upon, and the auditors in their report approved of his so doing by crediting him with this amount as an expenditure by the board.</p> <p>6. Isaac Z. Reiner was secretary of the school district of Lower Providence township, Montgomery county, from June, 1911, to December, 1911, when the new board, elected in November, 1911, organized under the Act of May 18, 1911, P. L. 309.</p> <p>7. At the time of his election as secretary and the fixing of his salary the said Reiner was a member of the school board.</p> <p>8. During his term as secretary the said Reiner performed additional duties to those usually devolving upon a secretary.</p> <p>9. Said Reiner when asked by the board of directors how much compensation he demanded, agreed to take $50.00, and an order for that amount was granted him and paid by the treasurer. No objection appears to have been made by any member of the board to this claim or that he was entitled to a less amount.</p> <p>10. The auditors allowed this payment as a proper expenditure by giving credit to the treasurer.</p> <p>11. We find the amount allowed said Reiner for his services to be a proper allowance.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. That said Samuel G. Reiff, treasurer, should not be surcharged with $202.43, amount of compensation retained by him, and allowed by the auditors, or any part thereof; and that the appeal of John W. Clark in this respect should be dismissed with costs to be paid by him.</p> <p>2. That said Samuel G. Reiff, treasurer, should not be surcharged $50.00, or any part thereof, allowed by the auditors to Isaac Z. Reiner, secretary, for salary, and that the appeal by said John W. Clark in this respect be dismissed, with costs to be paid by him.</p> <p>3. That said Samuel G. Reiff, treasurer, was authorized to pay said amount of 150.00 to said Isaac Z. Reiner, on the order granted by the school board, and that, if it was an improper allowance, the board of directors, and not said Reiff, were responsible.</p> <p>Error assigned was the judgment of the court.</p>

<p>Mechanics’ liens — Grading and sodding yard — Acts of June 16,1836, P. L. 695, and June 4,1901, sec. 2, P. L. 431 — Constitutional law.</p> <p>Under the Act of June 16, 1836, P. L. 695, a mechanic’s lien cannot be filed for grading and sodding a yard surrounding a suburban house in course of erection, and for planting trees along the sidewalk in front of it; nor can such a lien be sustained under sec. 2 of the Act of June 4, 1901, P. L. 431, inasmuch as a construction of the act that would permit such a lien to be filed would render its second section unconstitutional as in conflict with sec. 7, art. Ill, of the constitution.</p>

<p>Appeal, No. 78, April T., 1913, by defendant, from order of County Court of Allegheny County, No. 303, 1912, Commonwealth Docket, awarding support in case of Commonwealth v. Andrew Hopkins.</p> <p>Proceedings for support.</p> <p>From the record it appeared that at the time of these proceedings Florence S. Hopkins, the wife of Andrew Hopkins, had her residence with her four minor children, in Ohio. The case turned chiefly upon the constitutionality of the Allegheny County Court Act of May 5, 1911, P. L. 198.</p> <p>The court made the following order:</p> <p>And now, to wit, June 24, 1912, after hearing, the defendant, Andrew S. Hopkins, is ordered to pay to Florence S. Hopkins the sum of $40.00 per month for the support of his four minor children, said money to be paid to Florence S. Hopkins by check to her residence in Ohio at the end of each month, beginning June 30, 1912. It is further ordered that defendant pay costs and enter into own recognizance in the sum of $1,000 to comply with the above order, and on the failure of defendant to make payment as above ordered, an attachment shall issue forthwith for cause shown by said probation officer</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 23, Oct. T., 1912, by defendants, from judgment of C. P. Schuylkill Co., Jan. Term, 1909, No. 217, on verdict for plaintiff in case of James Wilson v. Bessie McCluskey and Peter McCluskey.</p> <p>Trespass to recover damages for injuries to land. See Wilson v. McCluskey, 46 Pa. Superior Ct. 594. Before Shay, P. J.</p> <p>At the trial it appeared that plaintiff claimed to recover damages for injuries to his property in New Castle alleged to have been, caused by the washing of ashes and dirt from defendants’ lot on to the plaintiff’s.</p> <p>Defendants presented, inter alia, these points:</p> <p>14. The uncontradicted testimony conclusively shows that the plaintiff, who owned the passageway and the fence to the south of his property, and the roof of his house, did nothing to prevent ashes and earth from banking up against his sills, allowed the dirt, ashes and sand to wash into his passageway, filling up same around the walls of the wells of his cellar windows, as high and higher than said walls, whereby the ashes and water would flow into his cellar and his drain, allowed the water to run from the roof of his own house to the cellar, permitted all these things without ever "making any effort to protect his property from damage, he stood idly by and thus contributed to the damage of which he complains, and therefore he cannot recover. Answer: If the jury believe that the plaintiff, who owned the passageway and the fence to the south of his property, and the roof of his house, did nothing to prevent the ashes and earth from banking up against his sills, allowed the dirt, ashes and sand to wash into his passageway, filling up same around the walls of the wells of his cellar windows, as high and higher than said walls, whereby the ashes and water would flow into his cellar and his drain, allowed the water to run from the roof of his own house to the cellar, permitted all these things without ever making any effort to protect his property from damage, he stood idly by and thus contributed to the damage of which he complains, and he cannot recover. [I]</p> <p>15. The uncontradicted evidence is that plaintiff contributed to the damage of which he complains, by standing idly by and allowing it to be done, when, as the evidence also shows, without contradiction, he had full and continuous cognizance of the damage he alleges was being done — and therefore he cannot recover. Answer: If the jury believe that the plaintiff contributed to the damage of which he complains, by standing idly by and allowing it to be done, and if the jury believed he had full and continuous cognizance of the damage he alleges was being done, he cannot recover. [2]</p> <p>17. Under all the evidence the verdict should be for the defendants. Answer: This we refuse, leaving it to you to say, under the instructions we have giveii you, and the evidence as you have heard it from the witness stand, what your verdict will be. [3]</p> <p>Verdict and judgment for plaintiff for $100. Defendants appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 58, Oct. T., 1912, by defendants, from order of C. P. Northampton Co., Dec, T., 1911, No. 10, making absolute rule for sufficient. answer in case of R. G. Wunderly v. D. M. Leopold, Trustee in Bankruptcy of the R. G. Wunderly Company, and A. E. Frantz.</p> <p>Assumpsit on an interpleader bond.</p> <p>On a rule for judgment for want of a sufficient answer, Stewart, J., filed the following opinion:</p> <p>This is an action upon a bond given in an interpleader proceeding. The Second National Bank of Nazareth, Pa., had issued an execution against R. G. Wunderly. In pursuance of the wyit the sheriff levied on an automobile, Wunderly claimed his exemption. Subsequently Leopold, trustee, claimed that the automobile was the property of a corporation known as the R. G. Wunderly Company. Leopold gave his bond as provided by the interpleader act, and received possession of the automobile. On the trial of the suit between Leopold and the bank a verdict was entered in favor of the bank for $300, the agreed value of the automobile. Wunderly, as exemption claimant, thereupon took a rule on Leopold and the bank “to show cause why judgment should not be entered for R. G. Wunderly, exemption claimant, for $260.” We discharged the rule in an opinion filed on November 13, 1911. After a careful reconsideration of what we there held, we are of opinion that no error was committed either in the entry of the judgment in the interpleader suit or in the discharge of the above rule. In the answers filed in the present suit, it is averred that Hannah E. Wunderly, wife of the present plaintiff, claimed certain goods and chattels. Whether it is intended to claim that the automobile in dispute is a subject of an interpleader, or whether section “d” is intended to be read in connection with section “m” is indefinite and uncertain. As an opportunity will be given for further answer, attention is called to the matter. It is further admitted that the defendant had notice that the balance of the exemption was to be paid out of the proceeds of the automobile “if it should be decided that said automobile is the property of the defendant.” There is then the further averment that it has not been determined that the property belonged to R. G. Wunderly and the further averment that as a matter of fact, the automobile did not belong to R. G. Wunderly. Then follows the averment “m” which is as follows: “That R. G. Wunderly has lost his right to his exemption by equivocation and denial of his ownership of said automobile in former proceedings and is now estopped from claiming his exemption out of the proceeds of said automobile.” If this paragraph stood alone, we would be compelled to make this rule absolute. The foundation of the plaintiff’s claim is the bond with its condition that the plaintiff “shall at all times maintain his title to said goods and chattels or pay the value thereof, to the party thereunto entitled.” Claimant failed to maintain his title. He must pay the value to some one. The verdict in the prior case, establishes that it must be paid to the bank, subject, however, to the right of the defendant in the original judgment to an exemption unless he has waived that right. We will permit a more specific answer to be filed, setting out the matters which constitute the waiver. There is no defense in the allegation that the defendant herein has already paid the bank the amount of its judgment. The record shows a notice of claim for exemption. It was brought to Leopold’s notice by the rule above referred to, and he makes it a part of his present answer. If he paid this claim, it is not a protection as against Wunderly unless he has waived his right to the exemption.</p> <p>And now, February 12, 1912, leave is granted to the defendants to file a more specific answer within ten days from date. If filed present rule will be discharged. In default of filing rule will be made absolute. These orders to be made by the prothonotary.</p> <p>On a second rule for judgment, Stewart, J., filed the following opinion:</p> <p>This is a rule for judgment for want of a sufficient answer. The prior history of this matter is contained in an opinion filed in the case of Leopold, Trustee, v. Second National Bank of Nazareth, Pa., et al., reported in 13 Northampton County Repr. 121. That was “a rule on plaintiff and defendant to show cause why judgment should not be entered for R. G. Wunderly, exemption claimant, for $260.” In that opinion we referred to the notice which the present defendants had of the present plaintiff’s claim for exemption. We there said, “While it is true that the sheriff drops out of the case, yet it does not follow that if the claimant or his sureties on the bond pay the execution plaintiff, that such payment will relieve them, if the exemption is allowed. The second section of the act gives form of bond. It is conditioned to pay the value of the goods and chattels Go the party thereunto entitled.’ The record quoted above gives sheriff’s return. The claimant and his sureties must take notice of this. We see no difficulty from that point of view.” We supposed, of course, that the defendants would pay the judgment against them into court and then the present plaintiff’s claim for his exemption could have been adjudicated in a proper manner by reference to a commissioner or by an issue if the facts would warrant it, as the practice is indicated in Dock v. Cauldwell, 19 Pa. Superior Ct. 51; Moore v. Dunn, 147 Pa. 359, and People’s Savings Bank v. Mosier, 199 Pa. 375. Instead of doing that, the defendants paid the eiitire amount of the verdict to the execution plaintiff, and in the present suit their defense is that payment is a complete discharge to the present claim. The record in the interpleader suit showed that the present plaintiff was a party entitled to almost the whole value of the goods. It is still contended by the learned counsel for Wunderly that a nonsuit should have been entered in the interpleader case or that Wunderly’s name should have been allowed to remain on the record as a defendant and a verdict taken in his favor for the amount of the exemption and for the bank for the balance. We are clear that our action at the time of the trial, as indicated in the opinion above referred to, with respect to the verdict, was correct. It may be that if counsel had paid more attention upon the argument of the rule to change the verdict, to the matter which should have been pressed, which was how Wunderly should receive his $260 exemption out of the proceeds, rather than to the alleged errors and defects in the trial, we would have of our own motion, ordered the money paid into court under the authority of Penna. Knitting Mills v. Bibb Mfg. Co., 12 Pa. Superior Ct. 346, where it was held, “Under the feigned issue of May 26, 1897, P. L. 96, the court will so mold the verdict and judgment that when a recovery is had against a claimant who has taken the goods, a verdict and judgment may be entered against the claimant up to the value of the goods, but not exceeding the claim of the defendant for the amount of his execution and costs.” See also Mann v. Salsberg, 71 Pa. Superior Ct. 280, and Lowry v. Letzelter, 45 Pa. Superior Ct. 143. The present defendants, disregarding the plain provisions of the act of assembly and the record in the case, paid all the money directly to the execution plaintiff. That payment was clearly unjustifiable, and was made at their own risk, like the payment in Kreider’s Estate, 135 Pa. 578, and is not a bar to this suit. Suppose we had made an order to the effect that $260 of the judgment should have been marked to the use of the exemption claimant, which we might have done, would that order have been more of a notice to the defendants than the claim for exemption made by him and appraisement, without any effort on the part of the bank to set the appraisement aside, conveyed to them? Surely not. Suppose, therefore, they had, in defiance of that order, paid the bank, would the order giving the exemption creditor that which an act of assembly had previously given him, have placed the defendants in any worse position than they are now in? Again, the present plaintiff may have an action against the bank in the nature of money had and received, but he is not bound in the first instance to sue the bank and exhaust his remedies against it. The bond is for the exemption claimant’s protection, and where the record shows his rights as here, he can proceed on the bond at once. This matter will be further discussed later. Defendants further set up as a defense that the plaintiff’s ownership of the automobile has not been determined, and secondly, his right to the exemption has not been determined. The verdict in the interpleader suit determines the first question in the present plaintiff’s favor. The right to the exemption is given him by law, and the burden would be upon the defendants to show that he had waived that right. “Where the defendant in an execution claims the benefit of the debtor’s exemption, the burden is always on the plaintiff to show that the exemption ought not to be allowed:” Pierce v. Boalick, 42 Pa. Superior Ct. 218. As appears from the sheriff’s return in the execution, certain articles of personal property were appraised to the plaintiff. The balance was awarded to him out of this specific piece of personal property, the automobile. If the bank objected to the appraisement, it should have moved to set it aside: Seibert’s Appeal, 73 Pa. 359; Pierce v. Boalick, 42 Pa. Superior Ct. 218. This appraisement still stands and it is a question whether it can be properly defeated at this late day, but the defendants have undertaken it by their claim that the plaintiff has waived his right by equivocation and estoppel by reason of certain matters, to wit, that on September 9, 1910, the plaintiff stated to a party mentioned that the automobile belonged to his wife; that on another day, September 30, 1910, in a bankruptcy proceeding of a company in which he was an officer, he again stated that it belonged to his wife. If these statements were true, they were made almost a year before the sheriff’s levy in the present ease, and were entirely irrelevant and immaterial, and could not be considered upon the present trial if we submitted the alleged matters of defense to a jury. The other matter is that on July 22, 1911, while Frank Kunkel, L. P. Kostenbader find M. J. Snyder were appraising the goods and chattels which Hannah E. Wunderly, the wife of R. G. Wunderly, claimed, she stated that the automobile belonged to her, but that she waived her right thereto, which was said in the presence of R. G. Wunderly, Robert Person, sheriff, and Calvin F. Smith, attorney for the exemption creditor, which statement the said R. G. Wunderly did not deny.” It is undoubtedly true, as was held in Strouse v. Becker, 38 Pa. 190, “If a defendant against whom an execution has been issued, falsely deny the ownership of his property, thereby hindering and delaying the sheriff in the collection of the debt, he forfeits his right to the benefit of the exemption law, though the falsehood was for the purpose of gaining time for the payment of the execution;” the gist of the matter is that the exemption claimant hindered or delayed the sheriff in the collection of the debt. In that case Mr. Justice Woodwakd said: “If the defendant’s falsehood in regard to the ownership of the property in his possession was for the purpose of putting off the sheriff and gaining time for the payment of the execution, it was just as fatal to his rights under the exemption law, as if it was made with intent to delay, hinder, and defraud the creditor. We cannot, indeed, see the ground for the court’s distinction in this regard; for to put off the sheriff and gain time on the execution was, in our apprehension, to delay and hinder the creditor. The sheriff was the creditor’s legal agent, and a false representation that hindered the sheriff hindered the creditor.” Again, “Indemnity was spoken of, but we do not see from the evidence sent up, that it was obtained or that the sheriff was delayed. If the falsehood was merely casual, and was not used at a time and in a manner to delay, hinder, or embarrass the officer, indefensible as it was, too much account would be made of it by grounding upon it a denial of the statutory exemption. It is only a lie with circumstances, that works a forfeiture. If the officer is in no degree hindered or delayed by it, no legal consequences attach to it.” In Emerson v. Smith, 51 Pa. 90, where the fraud alleged was the concealing of other property liable to execution, Mr. Justice Agnew said: “It has been repeatedly said that the Exemption Law was designed for the honest poor, not the roguish. It is not independent fraud, however, but such as affects the execution of the creditor, that defeats the debtor’s claim.” In Landis v. Lyon, 71 Pa. 473, where a defendant made improper statements as to his other property at the time an attachment was served on him, it was held that this statement could not defeat his subsequent claim to the exemption because he was not bound to claim it when the attachment was made, and nothing he said hindered the plaintiff in the collection of his claim. We think it very clear after a careful examination of the answer in this case, that it does not set up a defense. Nothing that Mrs. Wunderly said could affect her husband unless he acquiesced in it, and even if she did say she owned the property, in the same breath she said she made no claim to it. There is no foundation for the claim that anything that Mr. Wunderly did at the time hindered the bank in the collection of its judgment. The case is very much like Allemong v. Passmore, 14 W. N. C. 124, where the defendant’s property was claimed by the wife. She at once filed a disclaimer. Judge Biddle held that that would not defeat the exemption. It is said that declarations which Wunderly made in the bankruptcy matter, hindered the bank in its collection of the judgment because the trustee in 'bankruptcy would not have made his claim that the property belonged to the company if it had not been for Wunderly’s declaration that it belonged to his wife. We cannot see how any such result would follow, nor can we see how the plaintiff would be deprived of his own property because the representative of some company had made a claim to it.</p> <p>And now, March 18,1912, rule for judgment for want of a sufficient answer is made absolute, and the prothonotary is directed to enter judgment in favor of the plaintiff and against the defendants for the sum of $266.89. (Interest was calculated only from time of judgment.)</p> <p>Error'assigned was order making absolute rule for want of sufficient answer.</p>

<p>Appeals — Interlocutory order — Replevin—Counter bond — Quashing appeal.</p> <p>An order of the common pleas discharging a rule to strike from the record a counter bond filed by a defendant in an action of replevin brought to recover possession of property seized on a distress for rent, is an interlocutory order from which no appeal lies.</p>

<p>Equity — Parties—Jurisdiction—Tenants in common — Accounting.</p> <p>1. Two or more tenants in common may maintain a joint bill in equity for an accounting against another tenant in common who assumed the management of the joint estate, when it appears that the rights of all the parties arose out of the same title on the same state of facts, that their claims were of equal amounts, and that any defense set up under the pleadings would be available against all of the plaintiffs.</p> <p>2. In such a case a statement furnished by the defendant to the plaintiff need not to be made part of the bill where it is averred that the defendants had no means of verifying the statement, as the latter had refused to exhibit leases of the property, or vouchers for expenditures or repairs.</p> <p>Appeals — Amount in controversy — Supreme or Superior' Court.</p> <p>3. An appeal may be taken to the superior court from a decree dismissing a bill in equity filed by several tenants in common against a cotenant in possession for an accounting where it appears that the share due to each plaintiff was less than $1,500.</p>

<p>Appeal, No. 235, Oct. T., 1912, by defendant, from order of C. P. No. 2, Phila. Co., June Term, 1912, No. 5,714, making absolute rule for judgment |or want of a sufficient 3ffid.av.it of defense i.n cuse pf Albert Liab v. Alexander Kozuhowski.</p> <p>Assumpsit upon two promissory notes.</p> <p>The notes in suit were as follows:</p> <p>“ $156.55. Philadelphia, April 26th, 1912.</p> <p>“ Ninety days after date I promise to pay to the order of myself, One hundred and fifty-six and 55/100 Dollars at the Bank of Commerce, Philadelphia, Pa. Without defalcation for value received.</p> <p>“ (Signed) Alex. Kozuhowski.</p> <p>“ No Due 7/25.</p> <p>“Endorsed: Alex. Kozuhowski.</p> <p>“ $269.35. Philadelphia, April 26th, 1912.</p> <p>“ Ninety days after date I promise to pay to the order of myself, Two Hundred and sixty-nine and 35/100 Dollars. At Bank of Commerce, Phila., Pa. Without defalcation for value received.</p> <p>“ (Signed) Alex. Kozuhowski.</p> <p>“No. Due 7/25.</p> <p>“Endorsed: Alex. Kozuhowski.</p> <p>The statement of claim contained the following averment:</p> <p>“Plaintiff avers that he is the bona fide holder for value of both of the aforesaid notes before maturity, and the present holder thereof.”</p> <p>The affidavit of defense was as follows:</p> <p>Deponent is advised, believes and therefore avers that the said plaintiff, Albert Liab, is not the holder for value of said promissory notes upon which suit is brought; and that said plaintiff has no interest whatever in said promissory notes.</p> <p>Deponent says that said promissory notes were given and executed by him and delivered to said plaintiff for the uses and benefit of the International Life Insurance Company of St. Louis, Mo., that said notes were executed and delivered to said plaintiff for the purpose of having the same delivered by the said plaintiff to the said the International Life Insurance Company of St. Louis, Mo., and that the said the International Life Insurance Company of St. Louis, Mo., is the owner and holder of said promissory notes upon which this action is brought and that said plaintiff, Albert Liab, has no right, title or interest to or in said promissory notes. Deponent therefore avers that he is not indebted to the said plaintiff, Albert Liab, in the said sum of $244.51 or in any other sum whatsoever. All of which deponent is advised, believes, avers to be true and will prove at the trial of the cause.</p> <p>The court made absolute rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 271, Oct. T., 1912, by plaintiff, from order of C. P. No. 4, Phila. Co., June Term, 1912, No. 2,868, discharging rule for judgment for want of affidavit of defense in case of Commonwealth to use of William Wagner, Jr., v. A. Lincoln Acker, Sheriff, and the Maryland Casualty Company. Assumpsit against sheriff and his bondsmen. Rule for judgment for want of an affidavit of defense. The opinion of the Superior Court states the case.

Appeal, No. 3, Oct. T., 1912, by Mary A. Henry, from decree of O. C. Phila. Co., Jan. Term, 1910, No. 34, vacating a decree to pay over money in Estate of John Henry, deceased. Petition to vacate an order to pay over money.

Appeal, No. 125, Oct. T., 1912, by defendant, from judgment of C. P. Northampton Co., April T., 1910, No. 13, on verdict for plaintiff in case of Edwin Grim to use of Henry D. Sittler v. Emma E. Rohn. Trespass (amended to assumpsit) to recover outgoing tenant’s share of crops. Before Stewart, J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $151.11. Defendant appealed. Error assigned was refusal of binding instructions for defendant.

Appeal, No. 249, Oct. T., 1912, by plaintiff, from order of C. P. No. 1, Phila. Co., June Term, 1912, No. 4,678, discharging rule for judgment for want of a sufficient affidavit of defense in case of Maurice G. Weinberg v. Barnet Shulman. Assumpsit to recover compensation for the preparation of conveyancing papers. The averments of the affidavit of defense are set forth in the opinion of the Superior Court.

Appeal, No. 193, Oct. T., 1911, by plaintiff, from order of C. P. No. 5, Phila. Co., March T., 1909, No. 467, entering judgment for defendant n. o. v., in case of Provident Life & Trust Company, Executors under the will of Samuel R. Shipley, deceased, v. Spring Garden Insurance Company. Assumpsit on a policy of fire insurance. Before Martin, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff for $1,140.

Appeal, No. 14, Oct. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1906, No. 1,130, on verdict for plaintiff in case of Joseph Oberndorf v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed. Error assigned was refusal of binding instructions for defendant.

Appeal, No. 53, Oct. T., 1912, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1909, No. 1,748, on verdict for plaintiff in case of lia G. Donnelly, Administratrix of Estate of Andrew J. Donnelly, deceased, v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries.

Appeal, No. 105, Oct. T., 1912, by defendant, from order of C. P. No. 2, Phila. Co., Sept. Term, 1910, No. 4,058, refusing judgment for defendant n. o. v. in case of Morris Tamarin v. Pennsylvania Company. Assumpsit for goods injured by a carrier in course of transportation. Before Wiltbank, J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $287.37. The court refused judgment for defendant non obstante veredicto.

Appeal, No. 137, Oct. T., 1912, by defendant, from order of C. P. No. 3, Phila. Co., Dec. Term, 1911, No. 7,053 M. L. D., discharging rule to quash writ of scire facias, making absolute rule for judgment for want of an affidavit of defense, and discharging rule to open judgment in case of Atlantic Terra Cotta Company v. David R. Carson, Owner, and Calvin W. Rogers, Contractor. Rule to quash writ of scire facias sur mechanic’s lien.

Appeal, No. 153, Oct. T., 1912, by Charles B. Barrett and Helen C. Barrett, Trustees, from decree of O. C. Phila. Co., April T., 1911, No. 125, directing payment of money in Estate of Joseph D. Barrett, deceased. Petition to pay over money.

<p>Appeal, No. 160, Oct. T., 1912, by plaintiff, from orders of C. P. No. 1, Phila. Co., March Term, 1912, No. 792, M. L. D., making absolute and discharging certain, rules in case of James D. Sumption v. Calvin W. Rogers and David R. Carson, Owner or Reputed Owner.</p> <p>Rules to strike off, and rule to amend.</p> <p>From the record it appeared that claimant filed a mechanic’s hen to secure payment of a balance amounting to $499.04 due on a contract, and extra work amounting to $37.50, making a total of $536.54.</p> <p>The defendant filed a petition, upon which the court allowed three rules to show cause why the said lien, as a whole, or certain items thereof, should not be stricken from the record. The claimant filed a petition upon which the court allowed a rule to show cause why the lien should not be amended by attaching a bill of particulars and a copy of the specifications according to which the work was done. The court made absolute the three rules taken by defendants and discharged claimant’s rule to amend his lien.</p> <p>The facts relating to the apportionment of the lien are stated in the opinion of the Superior Court.</p> <p>Errors assigned were as follows:</p> <p>1. The court below erred in making absolute defendants’ rule to show cause why the item of $499.04, the balance of said apportioned contract price, should not be stricken from the lien filed.</p> <p>2. The court below erred in making absolute rule on claimant to show cause why the item of extra work amounting to $37.50 should not be stricken out.</p> <p>3. The court below erred in making absolute defendants’ rule on claimant to show cause why the lien filed should not be stricken off the record.</p> <p>4. The court below erred in discharging claimant’s rule to show cause why the lien should not be amended in accordance .with the prayer of the petition filed.</p>

<p>Promissory notes — Renewal notes — Payment—Affidavit of defense.</p> <p>In an action on a renewal promissory note, an affidavit of defense is sufficient, which alleges that by an oral agreement between the parties to the note, the payments to be made under an independent building contract, executed shortly before the maturity of the original note had been raised so as to include the indebtedness on the note, and that such payment had been made, and that the original note had thus been paid.</p>

<p>Appeal, No. 129, Oct. T., 1912, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1910, No. 88, dismissing libel for divorce in case of Martin C. Pearce v. Emma C. Pearce.</p> <p>Libel for divorce.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was decree dismissing the libel,</p>

<p>Appeal, No. 250, Oct. T., 1912, Jiy plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1910, No. 1,557, M. L. D., for defendant non obstante veredicto in case of Edwin B. Maline and Charles M. Striclder, trading as Malone & Sons, v. George W. Hosfeld, Owner, and John A. Codori, trading as John A. Codori & Co., Contractor.</p> <p>Scire facias sur mechanic’s lien.</p> <p>At the trial the jury returned a verdict for plaintiff for $213.86.</p> <p>On a rule for judgment for defendant n. o. v., Staples, P. J., filed an opinion which was in part as follows: The undisputed testimony was that No. 1237 Vine street was an old three-story and attic brick building arranged for a store in front of the first floor, and for a dwelling throughout the rest of the building, with an outside privy and well, and that No. 1235 Vine street was practically in its present condition, a commercial or manufacturing building, with an office on the first floor, the building being over 100 years old. The two buildings were practically made into one; all of the partitions of No. 1237 were removed; the rear wall was removed; the privy torn down and the privy well filled up; all the floors were either raised or lowered and a new brick addition upon stone foundations was built in. the rear. It was seventeen feet wide by twenty-two feet deep, three stories high, and included a fire tower. On the first floor of 1237 a new bulk window was constructed, which included a door; and on the second and third floors front, the dwelling house windows were cut down to the level of the floors so as to make doors out of them. The stairs were torn out, and when completed there were no stairs in No. 1237 Vine street, excepting those in the new fire tower in the rear. The fourth or attic floor was completely removed and two-thirds of the roof was put on new. There was no evidence, however, that there was any change in its shape, etc.</p> <p>After these changes, there remained of the original store and dwelling the front facade of the building, excepting the new bulk window on the first floor and the newly made doors on the second and third floors; and, also remaining, the party walls right and left, and one-third of the roof. The remainder of 1237 was new, or old reconstructed, and the building was no longer a store and dwelling, but a part of a manufacturing building connected with 1235 Vine street by three openings in the party wall on each floor, eight feet by eight feet, without any separating doors; while on the first floor front, the opening was sixteen by eighteen feet wide and so finished that the front of both 1235 and 1237 Vine street was one single office without sign of a division line. In No. 1235 Vine street, what had formerly been a door into the office was made into a window, and other alterations made so as to finish it in keeping with the rest of the front, and a new floor for the front offices partly in each of Nos. 1235 and 1237 Vine street, was put in. The stairways of the second and third floors were torn out and placed at another point, the openings boarded over and the flooring was continued through the party wall from one side to the other.</p> <p>■ The plaintiffs furnished lumber to the contractors towards the work done upon these buildings and which actually entered into the same, amounting to the sum of $189.58, which, with interest, made the total claim of the plaintiffs at the time of the trial $213.84.</p> <p>While there were several questions raised by the defendant in support of his contention, the only one we need to consider is whether or not under the contract and the work actually done and for which the lumber was furnished, it was actually used in “alterations or repairs,” or in “a substantial addition” to Nos. 1235-1237 Vine street. If it were furnished for “alterations or repairs,” then the plaintiffs were not entitled to recover, for they did not comply with the requirements of the statute of June 4, 1901, sec. 2, P. L. 431, which provides that:</p> <p>“In case of a sub-contractor .... notice of an intention to file, a claim therefor .... shall have been given to the owners, etc., on or before the day the claimants .... furnished the -last of their materials.”</p> <p>No such notice was given..</p> <p>If the lumber were furnished for a “substantial addition” to Nos. 1235-1237 Vine street, then the claimants complied with the statute as to notice and lien and were entitled to recover. There was no dispute in the evidence as to whether the work done was for “alterations” or “a substantial addition,” and the question was therefore for the court: Mehl v. Fisher, 13 Pa. Superior Ct. 330; Porter v. Weightman, 29 Pa. Superior Ct. 488; Patterson v. Frazier, 123 Pa. 414.</p> <p>And the court is largely to be guided in arriving at its conclusion by the fact of whether the work done was a “change which indicates and results from newness of structure in the main mass of the building:” Caldwell v. Keating, 18 Pa. Superior Ct. 297.</p> <p>The court must consider not only the changed appearance but the cause of it: Caldwell v. Keating, 18 Pa. Superior Ct. 297.</p> <p>The work done by the contractor did not change the exterior walls nor the roof of the old buildings, which had stood there for over 100 years, except that the rear wall and part of the west wall of 1237 were torn down and a new roof put on a part of the buildings. In our opinion, the three-story tower addition, the changes in the floors and windows, and the taking down .of the partitions, did not so change the buildings as to give them, or either of them, a new character or impress one with the “newness of .structure.” They were still the same old buildings and homogeneous mass with “alterations and repairs made in them.” The throwing the lower front floor into one office and putting in a new bulkhead window and door, changing them from an office and a store into one office, did not so affect the whole building, even along with all the other improvements, as to give it the character of a new structure. Citing Goeringer v. Schappert, 17 Pa. Superior Ct. 293; Caldwell v. Keating, 18 Pa. Superior Ct. 297; Kolb v. Church, 18 Pa. Superior Ct. 477; Smyers v. Beam, 158 Pa. 57; DeWald v. Woog, 158 Pa. 497, and Warren v. Freeman, 187 Pa. 455.</p> <p>In the light of the foregoing cases and rulings upon the facts therein contained applied to the present case, we hold that the work done and materials furnished were so done and furnished in the alteration of Nos. 1235 and 1237 Vine street, and that they did not enter into the construction of a new structure.</p> <p>And now, — 1912, in accordance with the foregoing opinion, the rule to show cause why judgment non obstante veredicto should not be entered in favor of the defendant, is made absolute, and judgment is entered in favor of the defendant and against the plaintiff.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Lateral support — Negligence—Special agreement — Excavation in a certain way.</p> <p>1. An excavation made by an adjoining owner in such a manner as to remove the lateral support of the contiguous lot, causing it, unburdened by any buildings or structures of any character, to fall into the excavation, subjects the former to liability for the resulting injury irrespective of the degree of care he may have exercised in, making the excavation,</p> <p>2. If there are buildings on the adjoining lot, and the lateral support is carelessly or negligently removed, and their contents are destroyed or damaged, the person who negligently or carelessly removes such support may be liable for all the damages sustained.</p> <p>3. If the person who is about to remove the lateral support agrees with the adjoining owner upon a method of such removal, and then changes to some other method, without notice to the other party, and damages result to the adjoining buildings and property, proof of such agreement and its violation furnishes evidence of negligence, and may render the excavator liable for all of the damages resulting.</p> <p>4. Where a person in making an excavation on his own lot does it in such a manner as to throw down a building on his neighbor’s lot, the latter is entitled to damages for injuries to Ms building, for the loss and injury to the goods therein, for the rental value of the building during the time necessary to reconstruct it, and for expenses in making temporary repairs to save his goods from further injury.</p> <p>5. If the plaintiff’s foundation is not as good as it ought to have been, and his building is destroyed by the negligent conduct of the defendant, still the plaintiff may recover in proportion to the loss actually suffered where the jury finds that the injury to the building and contents was the consequence of the defendant’s negligence.</p> <p>Practice, C. P. — Trial—Manner of taking verdict — Damages for delay — Interest.</p> <p>6. Where in an action to recover damages for injuries to a building and its contents caused by negligent excavation on the defendant’s land, the jury returns a verdict with interest from a date stated, but without computing the interest, and the trial judge refuses to take the verdict in this form, but submits to them a sum made up of the principal and interest computed, and asks the jury if this is satisfactory to them, and if that is their verdict, and the jury answers in the affirmative, and the verdict is taken and recorded, the verdict will stand, if the jury had been previously instructed that they could add to the damages, an amount for delay, not more than legal interest.</p> <p>Practice, C. P. — Trial—Points.</p> <p>7. The refusal of plaintiff’s counsel to deliver to opposing counsel copies of written points presented to the trial judge, and the refusal of the judge to require the points to be presented and discussed in the presence of the jury, are not grounds for reversing the judgment.</p> <p>Trial — Charge of court — Mistalce.</p> <p>8. An inadvertent mistake by the trial judge in using one word for another, is not ground for reversal where the mistake does not clearly affect the jury, and counsel do not call the judge’s attention to thp piatter at the tim§.</p> <p>9. A party may not sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified, and made harmless.</p>

<p>Practice, C. P. — Interpleader—Feigned issue.</p> <p>1. Where in an action against a bank, another party claims the fund in controversy, and the bank secures an interpleader order for a feigned issue to try the title to the money in dispute, it is the duty of the plaintiff's counsel to have a feigned issue framed between his client and the claimant, and if he fails to do so and issues a scire facias against the claimant with subsequent rules to file an affidavit of defense and to plead, and a judgment is obtained at the trial against the claimant, such judgment is irregular.</p> <p>Contract — Agreement partly oral and and yyritten — Evidence.</p> <p>2. Where an agreement is only shown in part by a writing it is proper to admit all competent oral testimony as to the agreement between the parties which induced and led up to the writing.</p> <p>Practice, C. P. — Assumpsit—Disputed evidence.</p> <p>3. As a general rule a plaintiff is not entitled to a binding instruction in his favor in an action of assumpsit, or in any other action where the parties dispute as to the facts, or the inferences to be deduced from oral testimony.</p>

<p>Appeal, No. 173, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Pbila. Co., June T., 1910, No. 3,003, on verdict fot plaintiff in case of Edward F. Fonder v. Meyer Rosenstein.</p> <p>Assumpsit to recover moneys paid out for the benefit of defendant. Before Kinsey, J.</p> <p>The pleadings and evidence are fully set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $447.20. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

Appeal, No. 191, Oct. T., 1912, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1907, .No. 532, refusing to take off nonsuit in case of Maurice J. Hoover v. Joseph T. Jackson et al., trading as J. T. Jackson & Company. Assumpsit for salary. Before Audenried, J. At the trial the court entered a compulsory nonsuit.

Appeal, No. 193, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 5, Phila. Co.., Sept. T., 1908, No. 4,170, for defendant non obstante veredicto in case of Andrew J. Hicks v. Philadelphia Rapid Transit Company. . Trespass to recover damages for personal injuries and for injuries to a horse and wagon. Before Ralston, J. At the trial the jury returned a verdict for plaintiff for $359.

<p>Appeal, No. 257, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1909, No. 1,220, on verdict for defendant in case of Joshua M. Johnson v. Peter Hernig.</p> <p>Assumpsit upon a check for $500, and also °for $600, alleged to have been paid defendant under a mistake. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Superior Court. See also Hernig v. Johnson, 52 Pa. Superior Ct. 255. '</p> <p>Plaintiff presented, amongst others, the following points:</p> <p>2. If Johnson the plaintiff paid the $600 under a mistake as to his liability as an indorser on the check of the Maryland Lumber Company he can recover the amount so paid because such indorsement did not make him liable. Answer: The second point is declined. [1]</p> <p>3. The plaintiff is entitled to recover the amount paid out by him upon the check of $500, made by the defendant, dated March 3, 1909, to the order of cash. Answer: The third point is declined.</p> <p>Defendant presented this point:</p> <p>No recovery can be had by the plaintiff against the defendant for- the $600, which the plaintiff paid to the defendant and for which he had received the defendant’s check for an equal amount, which latter check the plaintiff had deposited and collected the amount thereof in due course. Answer: If you find from the evidence the fact as it is stated in this point, then I affirm it. Otherwise I decline it. [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Appeal, No. 222, Oct. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1911, No. 2,240, on verdict for plaintiff in case of Philip S. Malickson v. Louis J. Bergdoll Motor Company.</p> <p>Assumpsit for salary. Before Staples, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court charged in part as follows:</p> <p>[You have heard the testimony upon the part of the plaintiff (it is his own testimony and that of Mr. Johnson), as to how he performed the duties of this position under that contract.] [8] He stated that he did all that he could do in the line of his employment as general purchasing agent, and that, while there may have been some things that happened in the company, and in the course of the business, in which certain parts of automobiles were not on hand, or certain delays were had, that none of that was his fault; that the fault, if there was any, was initiated or caused by the defendant company, in not having received, as it should have received, if the orders had been given in proper time, motors to be used in the construction of automobiles. As we understand this case, this company was engaged in the construction or building of automobiles by assembling parts. While there is no direct testimony, yet we think it may be concluded from all the testimony that none of the parts was made by this defendant company itself, but it purchased all the parts, and of course it was the duty of the general purchasing agent to secure these parts, if he were given full authority and full power to do so, and he received instructions to that effect.</p> <p>Did he perform his duties as general purchasing agent in a reasonably proper manner? It was not incumbent upon him to be so perfect as never to have made a mistake, and it would not prevent a recovery upon his part if at some time during this year he may have made some mistake or been guilty of one act of neglect, or something of that kind, whereby some part did not come as soon as it ought to, or was not on hand as it ought to be. [In order for you to find that the plaintiff in this case was incompetent, there should have been such evidence submitted to you as would warrant the conclusion upon your part that he was incompetent in such a way as to prevent the ordinary and reasonable construction of automobiles by this company, in accordance with its business and its plan.] [3] It was the duty of the plaintiff to be advised of about how many automobiles it was intended to construct, and what the means were at hand for the construction of them, and for the ordering in sufficient time, and the purchasing of the material necessary for the construction, if he had full power so to do, and it was understood that that was absolutely, or substantially absolutely, in his control, and that he was held responsible for the same, and if that were the case, and he did not do it, so that there was substantial delay (not just a delay for a day or so, but substantial delay), which interfered with the general business of the company, then we say to you that he is not entitled to recover, because then the defendant company had the right to discharge him. But if he discharged the duties of his position in a reasonable way, in a proper way, and according to the instructions that were given to him, and in accordance with the manner of conducting the business as he understood it, and as he was given to understand it, and . he was not guilty of disloyalty or bad faith, then we say he is entitled to recover. . . .</p> <p>What was the evidence in regard to that? It was stated in general terms that there were parts missing, but what were the parts? Were they parts that were actually necessary, and was it by reason of their not being there that the construction of the automobiles was delayed? As we remember the testimony of particular items that were mentioned, there was the item of some kind of gears or controls of the Warner Gear Company. It was his duty, of course, to have gears on hand, and it was the duty of the plaintiff, as purchasing agent, to have inquired as to whether or not gears were necessary and to have ordered them. The evidence upon the part of plaintiff is that they were ordered by him and were, ordered with the knowledge of the president of the defendant company; that he was consulted about it and that he O. K.’d it, and that the way in which they were ordered was intelligible, or ought to have been intelligible to the person who received the order. Did he order them in such a way as relieved him from the charge of incompetency, or relieved him from the charge of carelessness? The letter from the gear company was to the effect that the order was not intelligible. The plaintiff replied to that that it was intelligible as far as he was concerned, but that he was not acquainted with what their code was, if they had one. We do charge you, however, that one act of that kind would not be sufficient for you to find generally that the plaintiff was incompetent. Not one mistake of an employee, a mere mistake, would be enough to constitute such incompetence as would justify or warrant his employer in discharging him. The incompetence to be found by a jury, as being enough to warrant the discharge of an employee by an employer, must be such incompetence as generally affects the business, or interferes with the manufacture of the article which he is employed to purchase.</p> <p>Then there was the item of the spark plugs. You remember the testimony with reference to that. These spark plugs were bought of some concern that had a patent upon them, and they were sold under a restriction of price; that is to say, that they were not to be retailed under a certain price, and, as we gather substantially from the testimony, the defendant company agreed to that, and the charge is made that the plaintiff sold, without authority and acquainted with this restriction, 1,000 of these spark plugs to the Auto Accessory Company at a price which was very much lower than the price which had been fixed by the company which sold them 'to the defendant company. With reference to that we charge you, that if the plaintiff had been instructed by the defendant company (either by the president or some one else in authority), with relation to those spark plugs, and forbidden to sell the same, and notwithstanding that prohibition or that order not to sell, he, in violation of it, sold at a price less than that to which the company was restricted, that that was such an act as would entitle the defendant company to discharge the plaintiff. If, however, there was no such order of that kind given (of course, all this is subject to your findings from the weight of the evidence in the case), and the plaintiff sold these spark plugs to the Auto Accessory Company under an amicable course of dealing between the defendant company and the Auto Accessory Company, by which they exchanged parts of automobiles at cost prices, and this manner of dealing was understood by the defendant company and by the president, who appears to have been the manager, that then the action of the plaintiff was not such as would authorize his discharge by the defendant company, and we further state to you, that if you should find from the weight of the evidence all of these things against the plaintiff, that is to say, in the purchasing of the large quantities of parts, in the ordering of the gears, and in the sale of the spark plugs, and other matters complained of, if there is specific evidence that there were other matters, and all these taken together were such as to convince you, from the weight of the evidence, that the plaintiff was either incompetent or disloyal, then the defendant company had the right to discharge him, and the plaintiff is not entitled to recover. But if you find that there was not such an excess of articles ordered or purchased as to show incompetence, or that there was not such evidence of the want of ordering parts, and such evidence of want of care in the looking after the stock of the company as to warrant you in finding incompetence, and that the plaintiff’s version of the order to the gear company was correct, and the plaintiff’s version of the sale of the spark plugs was correct, then we say to you the plaintiff would be entitled to recover if he performed his duties as general purchasing agent in a reasonably proper manner.</p> <p>The defendant contends that in addition to that, the defendant company is entitled to have a credit for whatever the business was worth by reason of his efforts employed therein, in addition to the actual profits in dollars and cents, to the extent of what its good will was, and we charge you that that is a correct contention if you find from the evidence that the good will was worth anything. [To the mind of the court there was no direct testimony as to what -the good will of that concern was worth.] [1] Can you figure it out from the testimony? Is there enough contained in the testimony, from which you can figure that the good will was worth anything on the first day of March, 1912? Because, as we take it that would be the period when it ought to be fixed. You remember the testimony that in some of the good months like August, September and October, there were fairly good profits, and in other months the profits were either nothing, or, upon the other hand, there was a loss. Looking at it as reasonable men, what was the good will worth? What would you have been willing to have given for that good will if you had taken the statements made here showing the profits for some of the months and the loss for the others? If you can figure it out reasonably, and as men of judgment and experience, and can arrive at what you think is a fair figure for it, it is your duty to do it, [but the court says to you that you will have to arrive at that in a very careful manner, because the testimony with regard to it is so uncertain.] [1] If you can it is your duty to do it, but [if you feel that you cannot fix any figure, then you do not have to allow anything for good will, but simply allow the actual profit of $262.73, and deduct that from $2,759.70, which would leave the amount which n the plaintiff would be entitled to l’ecover, if you find he is entitled to recover at all, $2,496.97.] [1]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned among others were (1, 3, 8) above instructions, quoting them.</p>

<p>Appeal, No. 89, Oct. T., 1912, by defendants, from order of C. P. No. 1, Pbila. Co., June Term, 1911, No. 2,092, making absolute rule for judgment for want of a sufficient affidavit of defense in case of C. T. Harrop and Joseph J. Cohen, Committee of Creditors of Golden & Ottinger, v. J. Edwards Lutz, Trustee under the will of Ignatius Lutz, deceased, and Otto Zimmerman.</p> <p>Replevin for goods distrained for rent.</p> <p>The facts are fully stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 154, Oct. T., 1912, by plaintiffs, from judgment of C.'P. No. 2, Phila. Co., June T., 1909, No. 5,652, for defendant non obstante veredicto in case of Andrew J. Yeager and George S. Schock, trading as Lewistown Garage, v. Winton Motor Carriage Company.</p> <p>Trespass to recover damages for injuries to an automobile. Before Staples, P. J., specially presiding.</p> <p>At the trial it appeared that on April 21, 1909, the plaintiff’s car was struck by an automobile of the defendant negligently operated by one of defendant’s employees. Other facts appear by the opinion of the Superior Court.</p> <p>The jury returned a verdict for plaintiffs for $743.07. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Negligence — Street railways — Collision between car and wagon.</p> <p>In an action against a street railway company to recover damages for injuries to a horse and wagon sustained in a collision with one of defendant’s ears, a nonsuit is properly entered where there is no evidence that the car was running at an excessive rate of speed, nor that the motorman saw the plaintiff’s horse or wagon, nor any proof to show the position of the wagon or how the accident happened on a dark night.</p>

<p>Liquor law — Sale without license — Interstate commerce — Act of May IS, 1887, P. L. 108.</p> <p>1. The provisions of the Act of May 13, 1887, P. L. 108, entitled, “An Act to restrain and regulate the sale of vinous and spirituous malt or brewed liquors, or any admixture thereof, ” are not a direct burden on interstate commerce in intoxicating liquors as regulated by congress in the act commonly known as the Wilson Act, August 8, 1890, 26 Statutes at Large, 313, chap. 728.</p> <p>2. If a verbal order for liquor is taken in Pennsylvania by a person who owns a liquor establishment located and licensed in Ohio near the state line, and in pursuance of which order the liquor is afterwards delivered in Pennsylvania by the seller or his agent in the seller’s own wagon, and the purchase price of the liquor is afterwards paid to the seller in Pennsylvania, the latter may be convicted of selling liquor without a license in violation of the Pennsylvania law. The fact that the defendant had a license to sell liquors in Ohio is immaterial.</p> <p>3. As by the Wilson Act the mere solicitation within the state of orders for liquors located outside the state, is rendered subject to regulation by the police power of the state, so also the making of a contract by the acceptance of orders, within the state, is also subject to the exercise of the police power.</p>

<p>Appeal, No. 196, Oct. T., 1912, by defendant, from order of Q. S. Phila. Co., Dec. T., 1911, for support in case of Commonwealth v. David Fried-lander.</p> <p>Proceedings in desertion and for nonsupport.</p> <p>The transcript of the magistrate was as follows:</p> <p>“Warrant issued on November 20, 1911, on oath of Emma Friedlander. Defendant charged with insufficient support.</p> <p>“After hearing, defendant required to give bail in the sum of $300, conditioned for his appearance at the next term of court.</p> <p>“Defendant residing at 341 Orianna Street.'</p> <p>“Bondsman Bail by D. Friedlander, residing at 341 Orianna Street, and residing • at</p> <p>“The following persons, each held id $000 to appear and testify at the said Term of Court:—</p> <p> “Names of witnesses. Residence. </p> <p>“Emma Friedlander, Westmont, N. J.”</p> <p>The order of the court of quarter sessions was as follows:</p> <p>“July 30, 1912. Present, Hon. W. H. Staake. After hearing, the Court orders and decrees that the defendant, David Friedlander, pay the sum of $10 per week for the support of’ his wife, Emma Friedlander, and the further sum of $4.00 per week for each of his minor children, Sophia, Julia, Anna, Josephine and Elvira, from the thirtieth day of July, a. d. 1912, and give security of one or more sureties to the commonwealth in the sum of $500, for the faithful performance of this order, pay the costs, and stand committed until the order is complied with.”</p> <p>Error assigned was the order for support.</p>

<p>Appeal, No. 113, Oct. T., 1912, by defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1910, No. 5,092, on bill in equity in case of Samuel T. Benner v. Augustus T. Pollard.</p> <p>Bill in equity for an injunction. Before Magill, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The final decree was as follows:</p> <p>And now, to wit, May 10, 1912, this came on to be further heard at this term upon the defendant’s exceptions to the adjudication, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:</p> <p>First. The exceptions are dismissed.</p> <p>Second. The northerly wall of defendant’s building referred to in the bill and which extends for a distance of six inches beyond the property division line and upon the property of the plaintiff, is a party wall.</p> <p>Third. The windows and openings in said northerly wall of defendant’s property, and the sills of said window.:, constitute continuing nuisances and invasions, encroachments and trespasses on the rights of the plaintiff, and as such must be abated.</p> <p>Fourth. A permanent injunction shall forthwith issue, ' enjoining the defendant from maintaining the windows and openings and sills thereof mentioned in the bill' and directing the defendant forthwith to abate the said nuisances by causing the said windows and the frames and the sills thereof to be removed, and the spaces solidly built up with brick or stone, or some other incombustible material as if the same were in fact and in law, a division party wall.</p> <p>Fifth. The defendant is enjoined from exercising any easement, or right to use the said alley, constituting the southernmost three feet of plaintiff’s soil.</p> <p>Sixth. The defendant to pay all costs of this proceeding.</p> <p>Errors assigned were (1-4) the second, third, fourth and fifth paragraphs of the decree, and (5-13) in dismissing various exceptions.</p>

<p>Appeal, No. 35, Oct. T., 1912, by plaintiff, from judgment of C. P. Clearfield Co., May T., 1911, No. 259, for defendant non obstante veredicto in case of Elmer Eastburn v. D. Frank Eddleblute.</p> <p>Assumpsit on a promise to pay money. Before A. 0. Smith, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the jury returned a verdict of $1,283 for plaintiff. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 92, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1908, No. 3,536, on verdict for plaintiff in case of John Trevethan, by his father and next friend, William Trevethan v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, J.</p> <p>The circumstances of the accident are set forth in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 157, Oct. T., 1912, by plaintiff, from order of C. P. No. 2, Phila. Co., March Term, 1906, No. 1,204, entering judgment for defendant n. o. v. in case of Susan McSorley v. J. Joseph Katz.</p> <p>Assumpsit on a warranty. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Superior Court.</p>

<p>Appeal, No. 266, Oct. T., 1912, by plaintiff, from order of C. P. Schuylkill Co., July T., 1912, No. 22, refusing to take off nonsuit in case of John O. Ulrich v. Coaldale Borough.</p> <p>Assumpsit for salaries as borough solicitor. Before Brtimm, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 283, Oct. T., 1911, by plaintiff, from order of C. P. Berks Co., April T., 1911, No. 8, dismissing libel in divorce in case of Harry Egolf v. Elizabeth R. Egolf.</p> <p>Libel in divorce. Before Wagner, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order dismissing the libel.</p>

<p>Appeal, No. 62, Oct. T., 1912,</p> <p>by plaintiff, from order of C. P. Lancaster Co., Jan. T., 1909, No. 40, setting off one judgment against another in case of Alexander Ehrhart v. Christian B. Esbenshade.</p> <p>Rule to set off one judgment against another. Before Hassler, J.</p> <p>From the record it appeared that the application was to set off a judgment in assumpsit of Christian B. Esbenshade v. Alexander Ehrhart in C. P. Lancaster County, August Term, 1910, No. 80, against the judgment in tort of Alexander Ehrhart v. Christian B. Esbenshade in C. P. Lancaster County, Jan. Term, 1909, No. 40. The amount of the judgment in tort with interest and costs to the time of filing the petition was $2,859.69. The judgment in assumpsit with interest and costs to the time of filing the petition was $1,113.20. The two judgments grew out of the relationship of landlord and tenant between the parties. The circumstances under which the judgments were obtained are stated in the opinion of the Superior Court.</p> <p>Error assigned was order making absolute the rule to set off one judgment against the other.</p>

<p>Appeals, Nos. 86 and 87, Oct. Term, 1912, by plaintiffs, from orders of C. P. No. 1, Phila. Co., June T., 1907, No. 3,816, entering judgment for defendant non obstante veredicto in case of Margaret McElhone in her own right and Daniel J. McElhone by his mother and next friend and guardian, Margaret Mc-Elhone, v. Philadelphia Quartette Club.</p> <p>Trespass for injuries to a boy under fourteen years of age. Before Kinsey, J.</p> <p>At the trial it appeared that plaintiff, a boy twelve years of age, was injured on February 3, 1907, while employed at defendant’s bowling alley. There was evidence both of the negligence of the defendant and contributory negligence of the boy.</p> <p>At the trial the jury returned a verdict for Margaret McElhone for $539.50 and for Daniel J. McElhone for $1,000. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Public officers — County treasurer — Interest on deposits — Liability to account.</p> <p>1. Where a county treasurer deposits public moneys in banks in his own name as treasurer, and the banks .at stated intervals credit these accounts with interest, the treasurer has no authority to draw the interest from the official accounts and deposit it in his own personal accounts in the same banks.</p> <p>2. Public moneys when received by the proper official do not immediately, and thereupon become wholly and absolutely his private property to be used and disposed of by him solely according to his own pleasure, saving only the ordinary liability of a debtor to have them forthcoming to meet the obligation of his bond.</p>

<p>Petition in the Superior Court for writ of habeas corpus.</p> <p>The petition averred as follows:</p> <p>1. That the said court of quarter sessions of Blair county was without jurisdiction to sentence the said William Fagan to an imprisonment in said Western Penitentiary for the term of ten years upon the record as shown in this case.</p> <p>2. That no bill of indictment was prepared by the district attorney and filed in the said court of quarter sessions of Blair county against the said William Fagan, charging him with an offense against the law.</p> <p>3. That as shown by said record a complaint was made against the said William Fagan by one James Hammel, before D. E. Sell, Esq., a justice of the peace in and for Blair county, on October 7, 1910, charging him with an alleged offense, named in said record as abduction, and upon said complaint said justice issued a warrant for the arrest of the said William Fagan upon said charge, and placed the same in the hands of G. A. Hoenstine, constable, who arrested the said William Fagan on October 10, 1910, and brought him before the said justice of the peace, who on October 15, 1900, committed the said William Fagan to the county jail of Blair county, there to await trial at the next court of the quarter sessions of Blair county, and that on October 17, 1910, the said William Fagan was brought before the said court of quarter sessions of Blair county, and without any indictment having been prepared by the district attorney, charging the said William Fagan with an offense against the law, the said William Fagan signed the following waiver, written on the back of the transcript of the said justice of the peace, to wit:'</p> <p>“October 17, 1910. I hereby waive the finding of the Grand Jury in the above charge and plead guilty thereto.</p> <p>“ (Signed) William Fagan.”</p> <p>And that the said court, on said date, upon said alleged plea of guilty, sentenced the said William Fagan to pay costs of prosecution and undergo an imprisonment in the Western Penitentiary for and during the period of ten years. The said alleged waiver by the said William Fagan, and alleged plea of guilty made by him, and the sentence of the court is without warrant of law and is wholly void.</p> <p>4. Before the said William Fagan could have been sentenced by the court, a bill of indictment should have been prepared charging the said William Fagan with an indictable offense, and the same presented to the grand jury, and by them found to be a true bill, and the said William Fagan tried and found guilty thereon, or have pleaded guilty to said indictment. The Act of Assembly of April 15, 1907, P. L. 62, allowing a person charged with the commission of a crime to plead guilty to an indictment without the same having been sent to the grand jury and passed upon by them is unconstitutional.</p> <p>5. That even though said Act of April 15, 1907, P. L. 62, is constitutional, the same provides that the district attorney shall prepare a bill of indictment in the usual form before a plea of guilty be entered thereon by the defendant. In the present proceedings there was no bill of indictment prepared or filed in the case.</p> <p>6. The sentence and imprisonment of the said William Fagan is void as being in violation of the declaration of rights of the constitution of Pennsylvania, sec. 6, which provides as follows:</p> <p>“Trial by jury shall be as heretofore and the right thereof remain inviolate.”</p> <p>7. The sentence and imprisonment of the said William Fagan is void as being in violation of the declaration of rights of the constitution of Pennsylvania, sec. 9, which provides as follows:</p> <p>“Nor shall he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land.”</p> <p>8. The sentence and imprisonment of the said William Fagan is in violation of that clause of the fourteenth amendment of the constitution of the United States, which .provides:</p> <p>“Nor shall any State deprive any person of life, liberty or property without due process of law.”</p> <p>And the said clause is especially invoked and pleaded in this case.</p> <p>9. Abduction is not an indictable offense in Pennsylvania.</p> <p>10. The complaint made against the said William.' Fagan does not charge an indictable offense.</p> <p>11. The court of quarter* sessions of Blair county was-without power and authority to sentence the said William Fagan to an imprisonment of ten years upon the charge of abduction, even though there had been an indictment against him charging said offense.</p> <p>That the said William Fagan was not represented by counsel at the time of his sentence in the court of quarter sessions of Blair county; that by reason of poverty he has no means whatsoever to pay the costs of printing this petition.</p> <p>Wherefore, petitioner humbly prays your honorable court to issue a writ of habeas corpus for the relief of the said William Fagan agreeably to law.</p>

<p>Appeal, No. 141, Oct. T., 1912, by plaintiff, from judgment of C. P. Bradford Co., May Term, 1911, No. 316, for defendant on case stated in suit of R. J. Brink v. L. H. Marsh, George N. Bird and Job Griffin, Commissioners of Bradford County.</p> <p>Case stated to determine liability of county to pay scalp certificates.</p> <p>The court below found the facts to be as follows:</p> <p>This is an amicable action to determine the right of the plaintiff to a writ of peremptory mandamus against the defendants, directing them to issue two orders of $2.00 each, on the treasurer of said county, for the killing of two wood gray foxes.</p> <p>The material facts agreed upon in the case stated are as follows:</p> <p>First. That the defendants are, and on January 13, 1910, were the commissioners of said county.</p> <p>Second. That on January 12, 1910, the plaintiff in Rome Township, in said county, being a resident thereof, killed two wood gray foxes, and on January 13, 1910, in order to secure the award or bounty provided for in sec. 1 of the act of general assembly of Pennsylvania, produced the pelts before John Meredith, J. P., in and for Bradford county, and there made an affidavit that he killed the foxes at the time and place aforesaid.</p> <p>That the justice, in the presence of an elector, cut the ears off said pelts and burned them.</p> <p>Third. That he gave to the plaintiff two certificates for $2.00, each for the killing of said foxes, directed to the commissioners, setting forth that the provisions of said act had been complied with.</p> <p>That such certificates were in proper form and in conformity with the requirements of the said act.</p> <p>Fourth. That on the same day he presented the certificates to the defendants, and demanded orders on the county treasurer for the payment of the bounty on each, provided for by the said act.</p> <p>Fifth. That the defendants refused to accept the said certificates, and refused to draw orders on the county treasurer for the payment of said bounty.</p> <p>Sixth. That the defendants have not kept an account of the applications made to them for the payment of bounties, under said act, nor forwarded to the auditor general of the commonwealth itemized statements of the several amounts directed to be paid, but have refused to draw orders in all cases.</p> <p>Seventh. On May 20, 1909, R. K. Young, then the auditor general of the state of Pennsylvania, gave notice to the defendants that the legislature had not made any appropriation for the payment of bounties for the killing of noxious animals for the two years beginning June 1, 1909, and that there was no money or fund in the hands of the state treasurer for the payment of the same.</p> <p>The question submitted for the determination of the court is, if the court be of the opinion that under the foregoing statement of facts it was the duty of the defendants to issue orders on the county treasurer, payable to the plaintiff, directing him to pay the bounties provided for by the act of April 10, 1907, or any other act, when he presented the said certificates to them, in that case an order shall be made by the court, granting a peremptory mandamus against the defendants, commanding them to issue an order to the plaintiff for the sum of $4.00, for the killing of the said foxes; otherwise, to enter judgment in favor of the defendants. Costs to follow judgment in either case.</p> <p>The first section provides, that from and after the passage of this act there shall be paid by the commonwealth of Pennsylvania, a reward or bounty for the killing, within the commonwealth, of certain noxious animals, as follows:</p> <p>“For each wild cat the sum of $4.00; for each fox the sum of $2.00; for each weasel or mink the sum of $1.00.”</p> <p>Sections 3 aid 4 provide the method by which the person killing these noxious animals may obtain the bounty provided for.</p> <p>Section 2 prescribes what the person must do who is desirous of obtaining the bounty. It also lays down the duties of the magistrate before whom the claimant appears.</p> <p>Section 3 provides, inter alia, that upon the presentation of such certificate (the certificate given by the magistrate to the claimant), in proper form, the commissioner shall give an order for the amount named in such certificate to the person presenting the same, drawn upon the county treasurer, directing him to pay the reward or bounty from ,the funds in his hands belonging to the said county. We will discuss the form of the certificate presently.</p> <p>Section 4 provides that the county commissioners shall keep an accurate account of all applications made to them for bounty, and on January 1 and June 1 of each year forward to the auditor general an itemized statement of the several amounts directed by them to be paid between those dates, under the provisions of this act, making affidavit thereto and accompanying the same by sworn statement of the county treasurer, setting forth the fact that the several amounts were actually paid by him in compliance with the said order.</p> <p>The fourth section also provides that the auditor general shall, if he finds the return in proper form, draw a warrant in favor of such county upon the state treasurer for the amount so claimed and approved, which warrant upon presentation to the state treasurer shall be paid out of the appropriation herein provided for.</p> <p>Section 6 sets forth that the sum of $50,000, was appropriated for the purpose of carrying the provisions of the act into effect. The act lays the reward or bounty upon the commonwealth and provides the method by which it shall pay these bounties.</p> <p>The court entered judgment for defendant on case stated and refused the amendment.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No. 233, Oct. T., 1912, by plaintiff, from decree of C. P. Huntingdon Co., Sept. T., 1912, No. 30, refusing writ of peremptory mandamus in case of B. F. Isenberg v. Adam J. Black, J. G. Allison and W. S. Herncane, Commissioners of Huntingdon County.</p> <p>Petition for mandamus. Before Woods, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was decree refusing petition for writ of mandamus.</p>

<p>Contract — Boarding and nursing — Guaranty—Nonsuit.</p> <p>In an action to recover for boarding, nursing, caring and washing for the defendant, a nonsuit is properly entered where the evidence shows that the services were rendered at the instance and request of defendant’s son, and that at the most the defendant had merely guaranteed the payment by her son, from whom no attempt had been made to recover.</p>

<p>Practice, C. P. — Case stated — Essentials of — Nothing to he left to inference.</p> <p>1. On a case stated, the facts must be distinctly and expressly agreed upon and set forth as admitted, and not left to be inferred from mere evidence; whatever is not set forth will be taken not to exist.</p> <p>Liquor laws — Transfer of license — Proportionate part of license fee.</p> <p>2. In the absence of an express contract in terms or plainly deducible from the special circumstances, there is no-obligation on the part of the transferee of a retail liquor license to pay to the licensee a proportionate part of the license fee, or any other sum, which can be enforced in action at law, or attached by a judgment creditor of the transferror.</p>

<p>Appeal, No. 163, Oct. T., 1912, by defendant, from judgment of C. P. Lehigh Co., Jan. T., 1912, No. 19, on verdict for plaintiff in case of Catherine Snyder v: Andrew Camp.</p> <p>Trespass for obstructing a right of way. Before Trexler, P. J.</p> <p>At the trial it appeared that plaintiff was the widow of John Saylor, who died intestate, eighteen years before the action was brought, leaving to survive him the'plaintiff, his widow, and several children. The plaintiff continued in possession with her children of the farm and operated it without objection by her children, and without partition. The evidence tended to show that the right of way obstructed was through a woodland, which the defendant claimed was uninclosed. The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $100. Defendant appealed.</p> <p>Errors assigned were (2) The court erred in sustaining the judgment in favor of the plaintiff because under her right of dower, she did not have sufficient right of possession to maintain an action of trespass for the disturbance of a prescriptive right of way.</p> <p>(3) The court erred in sustaining judgment in favor of the plaintiff, because the tract of woodland was not inclosed woodland, as contemplated under the Act of April 25, 1850, P. L. 569, sec. 21.</p>

<p>Appeal, No. 158, Oct. T., 1912, by defendant, from judgment of C. P. No. 2, Pbila. Co., March T., 1911, No. 3,800, on verdict for plaintiff in case of George W. Paige, Executor of the last will and testament of Mary A. Wilmarth, v. Arthur E. Paige.</p> <p>Assumpsit for money had and received. Before BarRATT, J.</p> <p>At the trial it appeared that the defendant was indebted to his aunt, Mary A. Wilmarth, on a transaction between her and himself. He produced at the trial the following receipt and proved its genuineness by two witnesses.</p> <p>“Received from Arthur E. Paige, Trustee, the sum of $1,100 being the entire principal and interest due with respect to the share of the mortgage upon the Louella Mansion property at Wayne, Pa., represented by certificate No. 4 dated September 19, 1900, for the amount of $1000.</p> <p>Mary A. Wilmarth.”</p> <p>The court charged as follows:</p> <p>The plaintiff, the executor of the will of Mrs. Wilmarth, and also her sole heir, sues the defendant, his brother, for $700, claiming that this money is due the estate of Mrs. Wilmarth on a transaction which took place in 1908 between her and the defendant. It appears that she gave $1,000 to the defendant for investment and he did invest it in a mortgage upon a piece of real estate, about which you have heard a great deal of talk. On November 9,1910, he paid her $300 of this $1,000, and January 12, 1911, about a month prior to her death in February, he wrote to her admitting his indebtedness to her of the balance of $700. He tells her that he cannot pay her in full because he has not been able to effect a settlement of the sale of this property. Well, the court records of Delaware county would seem to flatly contradict him. This is for you.</p> <p>The defendant produces a paper purporting to be a receipt in full for the $1,000, signed by Mrs. Wilmarth. This paper is not dated. If it is genuine, it must have been signed by Mrs. Wilmarth after the defendant’s letter to her of January 12, 1911, in which he acknowledges the indebtedness, and the date of her death a month later, or on February 11, 1911. A receipt is prima facie evidence of payment only. It is not conclusive. It may be explained or contradicted by evidence. It is a question entirely for you in this case. This suit is brought by the executor of a dead woman, and the paper is alleged to be the dead woman’s receipt, and as death prevents her telling us about it, the law closes the mouth of the other party to the transaction, the defendant. You will have this alleged receipt, and the defendant’s letters, and other papers in evidence out with you for consideration.</p> <p>Gentlemen, you have questions of pure and simple fact. [If you believe that the defendant paid Mrs. Wilmarth the balance of $700, then your verdict would be for the defendant.</p> <p>If, on the other hand, you believe that he never paid that balance, then you would render a verdict for the plaintiff for $700, with interest from February 11,1911.] [4]</p> <p>Verdict and judgment for plaintiff for $751.80. Defendant appealed.</p> <p>Errors assigned among others were (4) portion of charge as above, quoting it, and (5) in not instructing the jury that in the event the defendant having made settlement with the decedent, or she had made a gift of defendant’s indebtedness to him, then verdict might be for defendant.</p>

<p>Appeal, No. 216, Oct. T., 1912, by plaintiffs, from order of C. P. No. 2, Phila. Co., Sept. Term, 1911, No. 1,247, discharging rule for judgment for want of a sufficient affidavit of defense in case of Henry C. Wagner to the use of Margaret Wagner, Assignee of M. J. Farren, Assignee of Henry C. Wagner, v. Sarah Prettyman, also known as Mrs. A. Elwood Lancaster.</p> <p>Replevin for a piano.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Justice of the peace — Judgment—Proceedings to obtain possession— Scire facias.</p> <p>1. A justice of the peace has power to issue a scire facias upon a judgment for damages and costs which was rendered by him, or his predecessor in office, in a proceeding instituted by a purchaser at sheriff’s sale to obtain possession of the premises.</p> <p>2. The acts authorizing transcripts of judgments of justices of the peace to be filed in office of the prothonotary, and providing that such judgments thereafter shall have all the force and effect of judgments originally obtained in the court of common pleas, do not comprehend by their terms or intent judgments entered by justices of the peace in possessory proceedings.</p>

<p>Statute of limitations — Promissory notes — Barring the statute — Evidence — Witness—Competency of witness — Party dead.</p> <p>1. In an action against a decedent’s estate on a promissory note more than six years old, it appeared that there was an indorsement on the note of the payment of one year’s interest in plaintiff’s handwriting within six years before suit was brought. The plaintiff produced a witness who had never seen nor heard of the note in suit, but testified that he was present at a meeting between the maker and plaintiff, and that the maker inquired of the plaintiff if he had been credited with the interest he had paid, and that the plaintiff then produced and exhibited to the maker a paper of the shape and size of the note in suit. It contained writing on both sides, but the witness was wholly ignorant of the tenor of the writing, and all he could say was that judging from the shape and size of the paper, it was the note in suit. Held, that such evidence standing alone was plainly insufficient to bar the running of the statute.</p> <p>2. In such a case the plaintiff’s wife is a competent witness to testify that she saw the note shortly after decedent’s death, and that it then had the indorsement on it just as it appeared at the trial.</p> <p>3. An interested person is competent to testify to a fact or condition of facts existing after the death of a deceased party in interest, notwithstanding such testimony may inferentially tend to show that the same state of facts existed, or that some other connected facts existed or occurred prior to decedent’s death.</p> <p>4. In an action on a promissory note alleged to have been barred by the'statute of limitations, where the plaintiff offers certain evidence which the trial judge improperly admits, and rejects certain evidence which should have been admitted, but after a verdict for plaintiff, judgment for defendant n. o. v. is entered, the appellate court in reversing the case, will not enter judgment for plaintiff, but will send the case back for a new trial.</p>

<p>Insurance — Life insurance — Warranties—Statements as to health.</p> <p>1. Where the evidence is conflicting in an action on a policy of life insurance, whether or not the deceased was in good health at the time of the delivery of the policy, within the meaning of the terms of the policy, the case is for the jury to be determined by them under proper instructions from .the court.</p> <p>2. The term “good health” when used in a policy of life insurance means that the applicant has no grave, important or serious disease, and is free from any ailment that seriously affects the general soundness and healthfulness of the system. A mere temporary indisposition which does not tend to weaken, or undermine the constitution, at the time of taking membership, does not render the policy void.</p> <p>3. Where an insured answers questions set forth in the application in a vague and indefinite way, and not responsive to the questions, bub without affirmatively asserting anything false and untrue, and the company does not ask for more specific answers, and issues the policy to the applicant, the company cannot after the death of the insured avoid the policy because of the insufficient answers. The most that it can ask is to have a jury determine under proper instructions, whether or not the insured was guilty of a breach of the warranty contained in his application.</p>

<p>Will — Devise—Rule in Shelley’s case — “Bodily heirs.”</p> <p>Testatrix devised a house and lot to her daughter for life, “and after her death to be divided in equal shares among her bodily heirs. Should, however, none of the bodily heirs of my daughter arrive at the age of twenty-one years, and leave no lawful bodily heirs, then the aforesaid house shall fall back to my other children and their heirs forever.” Held, that the daughter took an estate tail, which under the operation of the statute became an estate in fee simple.</p>

Appeal, No. 217, Oet. T., 1912, by defendant, from judgment of C. P. Berks Co., Jan. T., 1912, No. 11, on verdict for plaintiff in case of Reading Automobile Company v. Alexander M. DeHaven. Feigned issue on sheriff’s interpleader. At the trial the jury returned a verdict for plaintiff.

Appeal, No. 240, Oct. T., 1912, by defendant, from judgment of Q. S. Wyoming Co., October Sessions, 1912, No. 28¡Hj, on verdict of guilty in case of Commonwealth v. Sam Diori. Indictment for selling liquor without a license. Before Terry, P. J. The facts are stated in the opinion of the Superior Court. Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed. Errors assigned were various instructions.

<p>Appeal, No. 4, Oct. T., 1912, by defendants, from decree of C. P. Chester Co., No. 552, in equity, in case of Mary P. Bicking, Widow, and Samuel P. Bicking, Executor of S. Austin Bicking, deceased, v. Florey’s Brick Works, James Florey and William McClure, Jr.</p> <p>Bill in equity for an injunction.</p> <p>Butler, J., found the facts to be as follows:</p> <p>The common source of title of the respective properties of the plaintiffs and defendants is Thomas Downing who in 1750 owned a tract of 561 acres, which included the mill now owned by the plaintiffs, its race, and all the land now owned by the defendants. Thomas Downing, by deed dated April 20, 1756, conveyed to John Downing, in fee, 326 acres of land, being part of the 561 acres referred to, through which the race extends, which deed described by metes and bounds as one tract, the land lying on both sides of, and under the race.</p> <p>“Saving and excepting out of the above granted land and premises, unto the said Thomas Downing, his heirs and assigns, the mill race or, water course now dug through the said land and used to convey the water to the mills now in the tenure or occupation of Richard Downing, supposed to be twelve feet in breadth, and also a free board or passage of one perch wide on either side of the same, which shall be kept open and remaining to the said Thomas Downing, his heirs and assigns, to pass and repass at all times to repair and amend the said mill race. Yet, nevertheless, it is hereby declared that it shall and may be lawful to and for the said John Downing, his heirs and assigns to cut or open a passage or passages through the bank of the said mill race and take out the water at convenient times as to him or them shall seem meet, to overflow or water his adjacent meadow, but so as not in the least to obstruct the water in its passage along the race to the mills aforesaid, nor at any time to take or suffer to run out so much water as thereby to damnify the said mills, or render them less serviceable to the occupier or occupiers'of them. And the said John Downing, for himself, his heirs and assigns, doth hereby covenant, promise and grant to and with the said Thomas Downing his heirs and assigns, that he, the said John Downing, nor his heirs and assigns, shall not nor will at any time do or cause to be done, anything whereby the water may be obstructed in its proper passage along the race to the mills before mentioned, and if at any time there shall happen a breach to be made by reason of taking the water out as aforesaid, or that there shall happen to run out at the aforesaid passage so much water as to damnify or render less serviceable the before-mentioned mills, that then the said John Downing, his heirs and assigns, shall and will forthwith sufficiently amend and stop the same.”</p> <p>The premises now owned by the “Florey Brick Works,” are a part of the 326 acre tract thus acquired by John Downing. Thomas Downing died seized of the residue of the said 561 acre tract, including the mill and the mill race, and right of passage on either side, reversed, as above set forth, and by his will devised the mill, race, etc., to Richard Downing:</p> <p>“I give and devise unto my son Richard Downing, and to his heirs and assigns forever, all my water, corn or grist mill and fulling mill situate in East Cain aforesaid, with all the buildings, dwelling houses and appurtenances thereunto belonging or appertaining. And whereas I have already by deeds of lease and release bearing date the 20th day of the fourth month, 1756, conveyed unto my son John Downing, a messuage tenement and tract of land thereunto belonging, containing 326 acres of land, more or less, being part of the land which I purchased from John Taylor, lying in East Cain, aforesaid, excepting the mill race across the same, with the conveniency of land on each side thereto, to answer all advantages for the bringing of the water to my grist mill which is more particularly specified in the deed aforesaid. All which property and privileges therein reserved I now give and devise unto my said son Richard Downing, his heirs and assigns forever.”</p> <p>This mill property, water course, etc., are now vested in the plaintiffs.</p> <p>The Florey Brick Works, defendant, with a view to having access to its land on both sides of the race, has constructed and is maintaining a bridge across the race at a point where the race is about twenty feet wide, and its banks are a few inches higher than the surface of the water in a normal stage. Under the evidence and all the surroundings and conditions shown, we are satisfied that this bridge is constructed, maintained and used in a manner as little calculated to interfere with, or inconvenience, plaintiffs’ enjoyment and care of the race as is practically possible. Up to within a few years, a bridge extended across the race, at a point a short distance above the location of the new one. It was used as a means of access between the parts of the property lying on both sides of the race, now owned by the defendants, and there are three bridges, including one on the public highway across the race. Under what circumstances these bridges were constructed does not appear.</p> <p>The court entered a decree directing the removal of the bridge.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 231, Oct. T., 1912, by defendant, from judgment of C. P. Bradford Co., Sept. Term, 1911, No. 59, on verdict for plaintiffs in case of F. F. Smith, George F. Miller and M. R. Wright, co-partners, doing business under the firm name of Smith, Miller & Wright, v. National Bank of Sayre. Assumpsit to recover $600 voluntarily paid by the plaintiffs to the defendant on account of a promissory note, signed by the plaintiffs.

Appeal, No. 44, Oct. T., 1912, by defendant, from judgment of C. P. Monroe Co., May T., 1911, No. 21, on verdict for plaintiff in case of Madison D. Mosier v. East Stroudsburg Borough. Trespass to recover damages for personal injuries. Before Staples, J. The circumstances of the accident are set forth in the opinion of the Superior Court. Verdict and judgment for plaintiff for $500. Defendant appealed.

Appeal, No. 262, Dec. T., 1912, by Clinton It. Sinnott, from decree of O. C. Montgomery Co., Feb. T., 1912, No. 12, dismissing exceptions to adjudication in Estate of Joseph F. Sinnott, deceased. Exceptions to adjudication. Before Solly, P. J. The facts are stated in the opinion of the Superior Court. Errors assigned were in dismissing exceptions to adjudication.

<p>Constitutional law — Taxation—Public charities — Exemption—Act of March H, 1909, P. L.</p> <p>1. The Act of March 24, 1909, P. L. 54, which exempted from taxation churches, colleges and other institutions “founded, endowed and maintained by public or private charity, provided, that the entire revenue derived by the same be applied to the support of, and to increase the efficiency and facilities thereof, the repair and necessary increase of grounds and buildings thereof, and for no other purpose,” does not violate art. IX, sec. 1, of the constitution relating to uniformity of taxation and exemption from taxation.</p> <p>2. The Act of March 24, 1909, P. L. 54, is not unconstitutional because it contains no reference to the Act of May 29, 1901, P. L. 319, which amended the Act of May 14, 1874, P. L. 158. The act of 1909 relates to a different subject from that covered by the amendment of 1901, and is not repugnant to the latter.</p> <p>3. A lease of land by a theological seminary to a college for ninety-nine years, for educational purposes, at a nominal rent confers such an interest on the college as brings the land within the exemption referred to in the Act of May 29, 1901, P. L. 319, if that act be deemed constitutional and operative.</p> <p>4. It seems that the Act of May 29, 1901, P. L. 319, amending the Act of May 14, 1874, P. L. 158, is defective in title, and therefore unconstitutional.</p> <p>5. A store conducted in a small room of a college building, will not render the building taxable, if otherwise exempt, where it appears that the college received no rent or profit from the store, and that whatever profit was made through it, was toned over to the athletic association of the college, and all of it used in the payment of expenses incidental to such association.</p> <p>6. Where taxes assessed against a college are for land, a part of which is in a borough, and part in a township, and some of the land of a known acreage is used for agricultural purposes, and therefore taxable, the court may enter a decree exempting the other lands of the college from taxation, although it is not definitely ascertained how much of the college property was in the borough, and how much in the township.</p>

Appeal, No. 41, Oct. T., 1912, by Hannah Agnes Adams, from decree of O. C. Berks Co., June T., 1911, No. 47, dismissing exceptions to adjudication in Estate of Reuben Wagner, deceased. Exceptions to adjudication. Before Bland, P. J. The facts are stated in the opinion of the Superior Court. Error assigned was decree dismissing exceptions to adjudication.

Appeal, No. 264, Oct. T., 1912, by defendant, from order of C. P. Phila. Co., March T., 1912, No. 2,037, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Harry Van Koolbergen and Gilbert Sliedrecht, trading as Koolbergen & Sliedrecht, v. Walter N. Yates and Thaddeus N. Yates, trading as Thaddeus N. Yates & Company. Assumpsit for goods sold and delivered. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 273, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1910, No. 3,716, on verdict for plaintiff in case of Ellen P. Donlevy, Executrix, v. Samuel B. Dobbs.</p> <p>Assumpsit on a written guaranty. Before Magill, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The order of October 8, 1908, referred to in the opinion was as follows:</p> <p>“ Philadelphia, October 8th, 1908.</p> <p>“Mr. S. B. Dobbs,</p> <p>“ 1218 Chestnut St., Phila.</p> <p>“ Dear Sir:</p> <p>“ Please pay to Frank L. Donlevy & Co. the sum of Five Hundred Sixty Dollars ($560.00) for hardware furnished and to be furnished on the ten houses which I am erecting at Collingswood, N. J.</p> <p>“ This money is to be paid out of the last money due me on the completion of the said operation, under the terms of the agreement entered into between yourself, Henry It. Tatem and myself, dated April 29,1908.</p> <p>“ Respectfully yours,</p> <p>“John Maddock.”</p> <p>At the trial the court refused binding instructions for defendant.</p> <p>Verdict and judgment for plaintiff for $371.60. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant.</p>

<p>Bankruptcy — Insolvency—Act of Congress of July 1, 1898, Act of June 4, 1901, P. L. —Insolvents owing less than $1,000.</p> <p>1. The Federal Bankrupt Act of July 1, 1898, 30 Statutes at Large, 544, does not supersede the Pennsylvania Insolvent Act of June 4, 1901, P. L. 404, where the insolvent owes debts less than $1,000 in amount.</p> <p>2. In an action of replevin against the assignee of an insolvent to recover goods which were admitted to have been delivered to the assignor by the plaintiff under a conditional sale, the plaintiff is bound to aver in his statement that the assignor owed debts in excess of $1,000 in amount. He is bound to show that the insolvent was within a class which made the state law inoperative.</p>

<p>Married women — Contracts—Judgment note — Opening judgment — • Surety for debt of another — Charge of court.</p> <p>1. On an issue to determine the validity of a judgment against a married woman where the defendant offered testimony that she had given the note on which the judgment had been entered as security for the debt of her son, and the plaintiff offered testimony that the note had been given for money loaned to and received by the defendant, the case is for the jury; but it is error for the court to charge in effect that unless the money loaned to a married woman goes to the benefit of her estate, or is necessary, appropriate, convenient or advantageous to the exercise of her estate, she is not liable for the money loaned.</p> <p>2. In such a case it is also error for the court to charge that if the . jury find that the defendant took the money from the plaintiff, a brewing company, simply to help her son to get a liquor license “and that while the money was paid to her and she gave her note, yet she received no benefit whatever from the money, nor was there any understanding that she was to receive any benefit from the money, then we say to you that that was substantially going security for her son, and the mere fact that the money was paid to her and the note given by her would simply be an evasion of the act of assembly.”</p>

<p>Promissory notes — Indorsement—Joint action against maker and irregular indorser — Act of May 16,1901, P. L. 194-</p> <p>A joint action does not lie against the maker and the irregular indorser of a promissory note. There is nothing in the Negotiable Instrument Act of May 16, 1901, P. L. 194, which changes this rule.</p>

Appeal, No. 27, March T., 1913, by plaintiff, from order of C. P. Luzerne Co., Oct. Term, 1912, No. 966, dissolving attachment in case of La-Barre & Company v. W. H. Doney and G. B. Kleeman, Trustee, Garnishee, and David Rosenthal, Assignee, intervening defendant and appellee. Petition by David Rosenthal to intervene and to have the attachment execution dissolved. The case was submitted to Garman, J., for his decision upon facts agreed upon.

<p>Evidence — Payment—Stub of check book — Checks.</p> <p>A check book stub is not admissible in evidence to show by memorandum on it that the check taken from the stub had been applied to the payment of a particular claim, where the evidence shows that the check stub was written in pencil while the cheek was written with pen and ink; that the check book had been for an unknown length of time in the hands of the drawer of the check; that the drawee of the check knew nothing of what was written on the stub; and that other evidence in the case indicated that the check might have been applied, even under the memorandum on the stub, to the payment of another claim.</p>

<p>Criminal law — Keeping bawdyhouse — Evidence—Hearsay evidence.</p> <p>A verdict of guilty of keeping a bawdyhouse cannot be sustained, where the only evidence to support it is that of a policeman who testified that he was told by a detective who raided the defendant’s house that fifteen couples were found therein, and that they had declared that they were unmarried and made it a practice to frequent the house, and it appears that such declarations were not made in the' presence of •the defendant or the witness, and a number of apparently reputable witnesses testify that the defendant kept a respectable hotel for colored people.</p>

<p>Appeal, No. 24, Oct. T., 1912, by plaintiff, from judgment of C. P. Northampton Co., Nov. T., 1908, No. 7, on verdict for plaintiff in case of Alliance Borough, now Northampton Borough, v. Frank B. Schwartz.</p> <p>Scire facias sur municipal lien. Before Scott, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1) in refusing to permit the lien to be amended, and (2) in giving binding instructions for defendant.</p>

<p>Practice, C. P. — Motion in arrest of judgment — Expiration of time limit — Permission of court.</p> <p>1. Where the defendant has permitted the time to expire within which under a rule of court a motion in arrest of judgment should be filed, leave of court is necessary to permit such motion to be filed thereafter.</p> <p>Justice of the peace — Appeals—Insufficient transcript — Cause of action — Arrest of judgment.</p> <p>2. Where on an appeal from a judgment of a justice of the peace it appears that the transcript of the justice shows no cause of action, but the defendant takes no rule on the plaintiff to file a declaration or bill of particulars, and goes to trial on the merits, he cannot after a verdict against him, move the court to arrest the judgment on the ground that the transcript showed no cause of action.</p>

<p>Taxation — Corporations—Exemption—Beal estate — Telephone company.</p> <p>1. A lot and building owned by á telephone company and used as a central station is essential to the prosecution of the corporate business of the company, and therefore exempt from local taxation. The fact that the company might rent a building which would answer for a central office is immaterial.</p> <p>2. Where a telephone company files a bill in equity to restrain the imposition of a local tax on its central station, and the court finds that the company leased to another party a room amounting to one-seventh of the building, and apportions the valuation so as to impose a tax on one-seventh of the building, and the city appeals, the appellate court will sustain the decree.</p>

<p>Appeal, No. 286, Oct. T., 1912, by defendant, from judgment of Q. S. Phila. Co., July Sessions, 1912, No. 179, on verdict of guilty in case of Commonwealth v. Michael Shapiro.</p> <p>Indictment for keeping a disorderly house.</p> <p>At the trial a verdict of guilty was rendered, upon which judgment of sentence was passed.</p> <p>The only assignment of error is quoted in the opinion of the Superior Court.</p>

Appeal, No. 261, Oct. T., 1912, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1912, No. 3,971, discharging rule for judgment.for want of a sufficient affidavit of defense in case of Maurice G. Weinberg v. Sarah Tractenberg. Assumpsit to recover for professional services. The averments of the statement of claim and affidavit of defense are set forth in the opinion of the Superior Court.

<p>Contract — Attorney at law — Employment—Professional services— Case for jury.</p> <p>In an action by an attorney at law against several persons to recover for professional services, where it appears that the services were rendered and that the amount claimed was reasonable, and the evidence for the plaintiff, although to some extent contradicted, tended to show that he was employed by the general counsel of all the parties with authority to retain him, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.</p>

Appeal, No. 12, March T., 1913, by defendant, from judgment of C. P. York Co., Aug. T., 1910, on verdict for plaintiff in case of Samuel F. Dubs v. Hanover & McSherrystown Water Company. Trespass for diversion of water from a mill. Before Wanner, P. J. The opinion of the Superior Court states the case. Verdict and judgment for plaintiff for $1,452.88. Defendant appealed. Error assigned was, among others, in refusing binding instructions for defendant.

Appeal, No. 00, Jan. T., 1913, by Samuel C. Stryker, administrator of Emily Stryker, deceased, from decree of O. C. Columbia Co., dismissing exceptions to supplemental report of auditor in Estate of Elizabeth W. Wynkoop, deceased. Exceptions to auditor’s supplemental report. See. Wynkoop’s Estate No. 1, supra.

<p>Landlord, and, tenant — Abandonment by tenant — Bights of landlord— Presumption of possession — Repairs—Re-letting.</p> <p>1. Where a tenant, during the term, abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that he resumes possession is not of itself a sufficient foundation upon which to predicate either an acceptance of a surrender or an eviction. It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to a reoccupation of it by him and a renewal of the relations created by the lease. So too, if during the period of abandonment the landlord should make some repairs of the demised premises, or even sublet to another, these acts would be in the interest of the tenant who had committed a breach of the covenants of his lease, and would tend to minimize the damages which he would otherwise be liable to pay.</p> <p>2. In an action by a vendee of a landlord against a tenant and his sureties for rent, it appeared that the plaintiff found the premises vacated by the tenant. The evidence showed that he went and secured the key from the person with whom it had, been left, and that ho went to the tenant to secure either the lease or a copy of it. He entered into negotiations with a new tenant for the premises, on certain conditions as to securing a license which were not afterwards fulfilled; and he made some improvements or repairs to the property of a more or less expensive character. Held, that it was reversible error for the trial judge to charge the jury so as to make no distinction between possession of the vacated premises taken by the landlord merely to protect the property, or to minimize the damages that would follow the tenant’s abandonment, and a possession which would be adverse to any resumption of occupation by the tenant and thus amount to an eviction.</p>

<p>Mechanic’s lien — Subcontractor—Lumping charge for labor.</p> <p>A mechanic’s lien filed by a subcontractor set forth in detail material furnished from April 4 to October 17, with the exact date at which each item was furnished. The claim for labor was lumped as follows: “1911, April 4 to Nov. 20 — 137 hours labor at 60 cents per hour, $82.20.” The claim contained the following additional statement: “Said material and labor was furnished and supplied on the credit of the said new building situate on the lot of ground hereinafter described and substantially consisted of furnishing and erecting stairs in said house. The said material and labor were furnished between the date of April 4, 1911, and November 20, 1911, on which said last mentioned date the last of the materials and labor was furnished to the said house.” Held, that the item for labor was a lumping charge not properly setting forth the nature and kind of the work done, or when it was done, and should be stricken from the claim. McFarland v. Schultz, 168 Pa. 634, followed.</p>

<p>Appeal, No. 23, March T., 1912, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1907, No..213, on verdict for defendant in case of J. E. Franklin v. C. M. Laubach.</p> <p>Issue to determine the validity of a judgment. Before Hall, P. J., specially presiding.</p> <p>The court charged in part as follows:' •</p> <p>The case that we have here for consideration arises on an issue framed by the court upon a motion to open judgment which was confessed against the defendant in this case by virtue of a power of attorney contained in a lease made on March 11,1907, between J. E. Franklin, the plaintiff, and C. M. Laubach, the defendant, for a certain farm known as the William Franklin farm, containing about 100 acres on the west side of Huntington Creek and below the village of Huntington Mills. The lease was for the term of one year, and the consideration was that said C. M. Laubach shall pay for the use of said farm to J. E. Franklin one-third of the grain and potatoes raised, one-half of the hay and one-half of the fruits, all of said products to be gathered by the defendant and housed until called for, and the grain and part of the fruit to be delivered at Shickshinny freight depot, if desired, said J. E. Franklin to pay all turnpike tolls incident thereto. The lease then contains the clause: “On failure to pay the rents, shares, as aforesaid, the party of the second part stands bound in the penal sum of $500 and confesses judgment for that sum, waiving exemption, appraisement, appeal and release of all errors.” \</p> <p>It is claimed by the defendant that the tenant under this lease raised certain crops of which the lessor’s interest would have amounted to a value of $130. That is according to his own estimate and his own testimony.</p> <p>It appears that on June 14, following the execution of this lease to the defendant in this case, that thexV plaintiff executed another lease or contract with a Mr. Dohl, whereby he sold him the standing timber upon these premises, with the right of ingress and egress for the purpose of cutting and manufacturing this timber on the mill and carrying it away; and that in pursuance of that contract Mr. Dohl went upon the premises, erected a mill there, cut the timber, manufactured it and hauled the logs over and about this farm.</p> <p>On October 24, the plaintiff in this case, under a claim that there had been a breach of the contract upon the part of Mr. Laubach to pay his rents or shares as provided in his lease, entered judgment in the courts of this county for the penal sum contained in the lease, to wit, in the sum of $500, and issued an execution thereon, under which the sheriff made a levy upon all of the goods of the defendant in this case which were upon that property. The defendant came into court and so proceeded that that judgment was opened and the plaintiff was directed to file his declaration and an issue was framed to determine whether or not anything was due him under this lease. Upon the trial of that case before, the learned judge who tried it entered a nonsuit upon the ground that the testimony showed eviction and that there could -be no recovery under the facts and circumstances of the case. That nonsuit was taken off for reason that the court thought there might be a question of fact for the jury as to whether or not any rent had accrued up to the time of the entry upon this farm by Dohl. I do not know what the testimony was in that case, but certainly in the present case there is no testimony showing that any rent had accrued up to that time, for the reason that this rent was payable in kind or in crops, [and there is no testimony to show that any potatoes or hay or fruit or grain had been harvested or gathered prior to the time of the making of this lease with Dohl, nor in the nature of things could there have been any crops harvested on June 14.] [1]</p> <p>[We are of the opinion, as the trial judge was on the trial before, that there is ample evidence here of such breaches of this lease upon the part of the lessor as to constitute what'in law is a technical eviction, which would suspend the payment of the rent.] [2] But entirely aside from that question, the plaintiff in this case has declared upon his lease and seeks in his declaration to recover the penal sum of $500; by reason of the failure, refusal and neglect of the defendant to keep and perform the covenant aforesaid the plaintiff claims that the penalty provided in the lease is justly due him, demanding the same and being refused he brings this suit. [We are of the opinion that there is no evidence in this case which shows such a breach of the conditions on the part of the lessee as would give the plaintiff the right to declare a forfeiture and to enter judgment in the manner or at the time which he did; and as his right to recover in this action depends entirely upon his being able to prove a breach of the conditions upon the part of the defendant he has failed to make out a case in the judgment of the court.] [4] [This being our view of the case we will give binding instructions, and direct you to find a judgment in favor of the defendant.] [5]</p> <p>Verdict and j udgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were various portions of charge as above, quoting them.</p>

Appeal, No. 11, March T., 1913, by plaintiff, from order of C. P. Luzerne Co., Dec. T., 1890, No. 527, discharging rule to strike off assignment of judgment in case of C. S. Turner & Co. v. Simon Siegler. Rule to strike off assignment of judgment. The opinion of the Superior Court states the facts. Error assigned was order discharging rule to strike off the assignment of the judgment.

<p>Carriers — Loss of dog — Evidence—Case for jury.</p> <p>In an action against an express company to recover for the death of a bulldog, the case is for the jury, where the evidence shows that the animal was delivered to the carrier in a healthy condition, and protected in a strong, well-ventilated crate of ample size; that at destination the dog was found to be dead with no external evidences of the cause, it having been apparently asphyxiated; that the crate was smashed at one end; and that the defendant had started an investigation to determine the cause of death, and had abandoned or failed in determining it.</p>

<p>Bailment — Conditional sale — Lease of piano.</p> <p>1. Where a contract imports on its face to be the lease of a piano and provides for the payment of certain installments of rent each month, and further provides that if the lessee desires to purchase the piano he may do so by paying $1.00 in addition after all the rent has been paid, the contract constitutes a bailment and not a conditional sale.</p> <p>Landlord and tenant — Distress—Seizure and sale of leased chattel off the premises — Notice—Act of May 13, 1876, P. L. 171.</p> <p>2. Where a piano leased under a bailment has been removed from a rented house, and after such removal has been seized and sold by the landlord for rent due by a tenant having no interest in the piano, the lessor of the piano may recover in replevin although he gave no notice to the landlord of his title as provided by the Act of May 13, 1876, P.L. 171.</p> <p>3. Where a daughter leases a piano under a contract of bailment and places it in a house rented by her mother, the fact that the mother pledges the piano for rent in the presence of the daughter, who makes no objection, does not affect the title of the owner of the piano who had leased it to the daughter.</p> <p>4. A purchaser at a sheriff’s sale of a piano leased under a bailment takes only the interest of the lessee, and if that interest has ceased, he cannot hold the piano as against the lessor.</p>

<p>Insurance — Fire insurance — Evidence as to existence of policy — Case for jury.</p> <p>1. In an action to recover on a fire insurance policy where the plaintiff does not produce the policy, and the defendant denies its existence, the case must be submitted to the jury, where the evidence for the plaintiff, although contradicted, tends to show that the plaintiff had in her possession at the time of the fire a policy for an amount stated and issued in a year named, that it covered the property destroyed by the fire, had been issued by the company defendant, and had been delivered to the secretary of the company after the date of the fire.' In such a case the defendant cannot set up as a defense that the suit had not been brought within twelve months from the date of the fire, where there is no proof whatever one way or the other, of the existence in the policy of any provision that suit should be brought within such time.</p> <p>Evidence — Letter—Handwriting.</p> <p>2. Where a letter is received by due course of mail and purports to come in answer from a person to whom a prior letter has been sent, the receipt of such letter makes a prima facie case in favor of its genuineness and dispenses with the proof of the handwriting of the sender.</p> <p>3. Where a witness produces a letter which the sender admits to be genuine, such witness is competent to testify that a second letter, the genuineness of which is denied, was signed in the same way, and came through the mails from the same post office as the first letter.</p> <p>Evidence — Interest of witness — Divestment of interest.</p> <p>4. Where the court has passed upon the good faith of an assignment by which a witness has divested himself of all interest in the controversy, and the witness has been permitted to testify, the question of the good faith of the assignment cannot subsequently be submitted to the jury.</p>

<p>Appeal, No. 185, Oct. T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1911, No. 2,713, on verdict for plaintiff in case of Frederick M. Mechling v. Philadelphia Life Insurance Company.</p> <p>Assumpsit to recover back moneys paid as the first annual premium on a policy of life insurance. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court. See also Burns & Reilly Real Estate Co. v. Philadelphia Life Ins. Co., 239 Pa. 22.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $394.55. Defendant appealed.</p> <p>Errors assigned were in giving binding instructions for defendant and in refusing defendant’s motion for judgment n. o. v.</p>

<p>Attachment execution — Quashing writ — Junior attaching creditor— Irregularity in proceedings — Failure to file affidavit and recognizance— Act of June 16,1836, P. L. 755, secs. S3 and S3.</p> <p>A junior attaching creditor of corporate stock has no standing to demand that the writ of a senior attaching creditor of the same stock shall be quashed because the affidavit and recognizance required by-secs. 32 and 33 of the Act of June 16,1836, P. L. 755, had not been filed prior to the issuing of such writ, and this is especially the case where it appears that nó objection had been made to such irregularity by the defendant or the garnishee in the earlier writ, and that the junior creditor had not issued his writ until a year and a half after the date of the earlier writ, and then took judgment subject to the earlier writ and allowed the sale of the stock to be consummated without raising any question as to the validity of the senior writ.</p>

<p>Appeal, No. 254, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 4,113, for defendant n. o. v. in case of Thomas Sorden v. William T. Parker.</p> <p>Trespass to recover damages for personal injuries. Before Atjdenbied, J.</p> <p>At the trial the jury returned a verdict for plaintiff for $300. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Atjdenbied, J., filed the following opinion:</p> <p>The plaintiff claimed damages from the defendant by whom he had been employed, on the ground that he had been injured, while working in his service, through the negligence of the defendant’s superintendent in faffing to guard a certain ladder upon which the plaintiff had mounted by the orders of the latter and in permitting it to become dislodged from its position.</p> <p>The evidence showed that the defendant had sent Sorden and another employee named Monroe to install a boiler in a building which was being erected on the property of the Pennsylvania Salt Manufacturing Company. Monroe was put in charge of the job and Sorden was instructed to work under his orders. To secure a support for the tackle that they were obliged to employ in this work it became necessary to place a piece of timber across the joists of the building in which the boiler was to be installed. A ladder was obtained and set against the wall of the building, its lower extremity resting on the cement floor. This was not fitted with a device to prevent it from slipping jmder the weight of any person who might mount it, but Monroe told Sorden to climb up and set the timber in .place, promising that he would hold the ladder securely. Sorden went up the ladder as directed. Almost immediately something attracted Monroe’s attention and letting go of the ladder, he walked away. While Sorden, who had not noticed Monroe’s absence, was in the act of leaning over to take hold of the beam that he was to place upon the joists, the ladder slipped and threw him to the'floor.</p> <p>The plaintiff’s statement does not complain that Monroe was negligent in choosing the ladder, or that the ladder was defective, or that Monroe displayed carelessness in the plan that he formed for its use. The only negligence complained of is his failure to guard the ladder and prevent it from becoming dislodged. This, however, was not within his duty as foreman. In holding the ladder he acted as an ordinary workman, and it can fairly be said that the negligence that resulted in the injury sustained by the plaintiff was that of a fellow servant: Hoffman v. Holt, 186 Mass. 572 (72 N. E. Repr. 87).</p> <p>Where a manager or vice principal undertakes work in simple co-operation with other servants, and upon precisely the same footing with them, he becomes for the time being a mere fellow servant with them, acting as such: Ross v. Walker, 139 Pa. 42. If in the performance of such work he negligently injures another servant, the latter cannot recover damages from the master for the injuries sustained. The Act of June 10, 1907, P. L. 523, was not intended to impose liability upon an employer “except in the case of results happening through the exercise of superintendency:” Feeney v. Abelson, 49 Pa. Superior Ct. 163.</p> <p>Even if the plaintiff’s statement based his claim on the defendant’s failure to provide him with a safe place in which to work, it is difficult to see how upon the facts developed at the trial a recovery against the latter could be sustained. The risk of using such a ladder as that from which Sorden fell was as obvious to him as it was to Monroe, and he took it.</p> <p>For the reasons above indicated the court is of the opinion that the defendant is entitled to judgment non obstante veredicto.</p> <p>Error assigned was in sustaining judgment for defendant n. o. v.</p>

<p>Appeal, No. 103, Oct. T., 1912, by plaintiff, from order of C. P. Schuylkill Co., Nov. T., 1911, No. 139, refusing to take off compulsory nonsuit in case of The Frank Spangler Company v. D. F. Haupt.</p> <p>Trespass for deceit. Before Bechtel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 553, Miscellaneous Docket No. 2, No. 553.</p> <p>Petition for habeas corpus.</p>

<p>Contract — Trust company — Disbursing funds for building operation— Agreement urith material man.</p> <p>1. Where a trust company which holds and disburses funds for the completion of a building operation, and insures the completion of the operation, agrees to pay moneys to a material man for material already furnished, if the latter will furnish other material necessary for the operation, and the material man obtains an order from the contractor on the trust company for an amount sufficient to pay for all of the material, and the company has notice of this assignment, and agrees that the amount named shall be appropriated as designated in the assignment, the trust company will be liable to the material man for all of the material furnished, and cannot set up as a defense that it only received from the builder eighty per cent of the total cost of the building, or that the assignment for the benefit of the material man had not been accepted in writing, or that the company’s trust officer had no authority to enter into the contract.</p> <p>2. A parole promise to pay the debt of another out of funds transferred to the promissor is not within the statute of frauds. The duty is one of agency rather than one of suretyship.</p> <p>Corporations — Trust company — Power of officers.</p> <p>3. When a corporation intrusts a manager with the general supervision of a particular branch of its business it invests him with the power of a general agent coextensive with the business intrusted to his care.</p> <p>Evidence — Witness—Memory of witness.</p> <p>4. A witness who testifies to a conversation which he had heard many years before may tell as near as he can what was said. He cannot be expected to give the identical words of the conversation.</p>

<p>Appeal, No. 30, March T., 1913, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1908, No. 1,045, on verdict for plaintiff in case of William Repp v. H. C. Reynolds.</p> <p>Assumpsit'on a parole contract for compensation for services. Before Newcomb, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Verdict and judgment for plaintiff for $587. Defendant • appealed.</p> <p>Error assigned among others was (6) answer to defendant’s seventh point, quoted in the opinion of the Superior Court.</p>

<p>Appeal, No. 15, March T., 1913, by defendant, from judgment of C. P. Luzerne Co., Feb. Term, 1909, No. 159, on verdict for plaintiff in case of Victoria Zinkiewiez v. Citizens’ Electric and Illuminating Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial the jury returned a verdict for plaintiff for $1,000.</p> <p>On a motion for judgment for defendant n. o. v. Fuller, J., filed the following opinion:</p> <p>This action was brought for personal injuries inflicted upon the plaintiff by contact with a live electric wire which had become broken and by the alleged negligence of defendant was left dangerously hanging down upon the road where she walked.</p> <p>There was sufficient evidence to establish, (1) that the wire had remained in the broken condition during a period of about four hours, (2) that the defendant would have been Immediately apprised of the break if a proper apparatus had been installed at its station, (3) that the wire was charged with an alternating current of 2,200 ' volts, (4) that the plaintiff walking on the road where the wire hung came in contact with the wire, thus receiving a painful and injurious shock.</p> <p>The case was submitted to the jury with instructions to determine whether the defendant was negligent in failing to discover and remove the danger during the period of four hours before the accident, and whether the plaintiff herself was guilty of contributory negligence, The jury rendered a verdict in favor of the plaintiff for $1,000, and this result is now attacked on the motion for judgment non obstante veredicto, on two grounds, first, that the plaintiff failed to prove negligence as averred or any negligence at all, and, second, was herself guilty of contributory negligence.</p> <p>(1) The statement avers on the point of negligence that the plaintiff “came inadvertently in contact with a defective, broken or sagged, uninsulated and highly charged live electric light wire, owned and controlled by said defendant, who negligently permitted the same to be and remain for a long space of time in a highly dangerous condition in, over and along the said highway; .... that it was the duty of said defendant to use a high degree of care, caution and skill in the management and conduct of said business and in conducting and maintaining its poles, wires and all other necessary machinery and apparatus connected with its plant, in a safe condition, and to keep the same so by sufficient and timely inspection so that plaintiff and all others having occasion to pass along the said highway might not be injured in that behalf; .... that the defendant did not use proper care and skill in constructing and maintaining its poles, wires and other apparatus in a safe condition, but on the contrary negligently constructed and adjusted its wires on its poles and for a long time previous to and up to the time of the injury heretofore stated, negligently permitted its wires to be in a sagged, broken or defective condition down, in and along the highway, etc., and it also failed to maintain inspection of said wire at said place, and because of its neglect in these respects the said plaintiff suffered,” etc.</p> <p>This perhaps displays a lack of precision, and was not sustained in all respects by the evidence, but we think that taken as a whole it would be sustained by proof of a broken wire hanging down upon the road during a period of time sufficient to affect the defendant with constructive notice of its condition.</p> <p>The measure of defendant’s responsibility is defined in Fitzgerald v. Edison Electric Illuminating Company, 200 Pa. 540, as follows:</p> <p>“The company, however, which uses such a dangerous agent, a wire charged with an electric current, is bound not only to know the extent of the danger but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them,” which was approved in later cases.</p> <p>We need not cite authorities for the proposition that in view of the extraordinary care which such companies are bound to exercise they would be responsible for the consequences of permitting a live wire to dangle upon the road after notice, actual or constructive, regardless of the causes producing such a condition.</p> <p>In light of the legal propositions which govern the case, and of the testimony respecting duration of the break and available apparatus for quick discovery, we could not well withdraw this case from the jury.</p> <p>It is true that the lack of proper apparatus for such purpose was not specified perhaps, but in the absence of any demand for a bill of particulars, we think it may be implied in the general averment of negligence in permitting the wire to be for a long time in a broken condition.</p> <p>It was for the jury to say whether four hours constituted a period long enough to impute knowledge of the break under all the circumstances, and among those circumstances, though not specifically averred, would be the existence of an apparatus for speedy discovery.</p> <p>We must refer to our charge for further vindication of our refusal to give binding instructions on the question of defendant’s negligence. The manner of submission may have been inadequate, but no objection for that reason was alleged when exception was taken to the charge, as required by Act of May 11, 1911, P. L. 279, nor has any such objection been urged since, and therefore we need go no further at this time than to decide in the affirmative the propriety of submitting the case at all.</p> <p>(2) We will also refer to our charge for vindication of refusal to give binding instructions on the question of plaintiff’s contributory negligence.</p> <p>The subject was submitted to the jury thus: "Was she guilty of contributory negligence? If so she cannot recover. If as she testified she saw the wire down at 6:30 A. m. and knew that it carried electricity to run the mill, ought she to have known its danger, and ought she, in the exercise of ordinary prudence, under the circumstances, to have watched the little boy or held him by the hand as they passed the place of danger, and was she herself negligent in permitting him to walk behind, unwatched and unprotected? If she knew that the broken wire carried a dangerous current you might find in her behavior the absence of such ordinary, reasonable care as people are bound to take of themselves, but there is no proof nor presumption that she knew this, for wires charged with electricity may be harmless or they may be dangerous, and the difference is not apparent to ordinary ocular observation. Furthermore, the day was Sunday, when the mill was not in operation. She was carrying a baby in her arms, as she had a right to do. Considering all the circumstances, can you say that she was guilty of negligence which was a contributing cause of the accident, that by the exercise of ordinary care she might have avoided the accident? If you can and do so find as reasonable men, your verdict should be for the defendant.”</p> <p>This woman, of course, knew in a general way perhaps that the wire which she saw broken at an early hour in the morning was used to carry electricity for the machinery of the mill, and that electricity is dangerous to human welfare, but we could not without the aid of the jury convict her of knowing that the wire was still broken four hours later, or that it carried a dangerous current at that particular time, on Sunday, when the mill was not in operation, nor can we pronounce her conduct in traveling her accustomed road with her little children contributory negligence per se, which should bar recovery.</p> <p>It was a proper question for the jury, properly submitted.</p> <p>The motion for judgment non obstante veredicto is denied.</p> <p>The verdict is also attacked on the motion for a new trial on the ground of certain alleged errors in the admission and rejection of evidence; (1) in permitting the witness Hart to give testimony in relation to the purpose and function of a continuous ground detector, and the effect of such an appliance if installed in the defendant’s plant or power house, respecting the giving of notice in case of a break of one of defendant’s wires, the said witness having admitted before so testifying that he had no knowledge or experience in the use and operation of what is known as a ‘ ‘ continuous ground detector; ” (2) in excluding the evidence offered by defendant to show that the wires which were connected with the mill of the Wyoming Valley Lumber Company were erected, paid for and continuously controlled and maintained by the said lumber company, and that in consequence thereof the said lumber company took it upon itself to watch and guard said wires in case the same got out of order and repair, and this for the purpose of relieving the defendant company from liability in the event that said wires and poles would get out of order and require repairs.</p> <p>The admission of Hart’s testimony was not pressed upon the argument, and we entertain no doubt concerning its propriety because that witness was the defendant’s own employee and engineer in charge of the station at the time of the accident, competent as an expert to testify upon the subject and in that capacity was fully qualified to testify concerning the continuous ground detector, although he had never used one..</p> <p>The exclusion of said evidence offered “for the purpose of relieving the defendant company from liability,” etc., was fully warranted by what seems to us the perfectly obvious consideration that the company could not by any such private arrangement relieve itself of liability for breach of its duty to the traveling public in respect to a dangerous current of electricity which crossed the highway, and was exclusively manufactured, transmitted and controlled by the company itself.</p> <p>If defendant’s contention on this point were correct, electric companies could restrict their liability to the condition of main wires and relieve themselves from all liability for condition of branch wires conducting the current to the individual private customers, although the branch wires overhang the highway where they may become a source of public danger.</p> <p>The private arrangement, of course, as between the company and the customer might impose upon the latter the cost of erecting and maintaining the branch wires, but certainly could not affect the company’s responsibility in relation to third parties.</p> <p>Public policy plainly prohibits such a conclusion.</p> <p>The motion for a new trial is denied.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 16, March T., 1913, by plaintiff, from judgment of C. P. York Co., April Term, 1911, No. 57, on verdict for defendant in case of City of York v. D. F. Stauffer.</p> <p>Scire facias sur municipal lien.</p> <p>At the trial the jury by direction of the court returned a verdict for defendant.</p> <p>Subsequently Wanner, P. J., filed the following opinion:</p> <p>Motions for a new trial and for judgment non obstante veredicto have been filed in this case because the court, at the trial, gave binding instructions in favor of the defendant, D. F. Stauffer. He was one of the signers of a petition to the councils of the city of York, praying for the paving of the block on South George street, extending from King to Princess streets. Said petition represented that the petitioners were a majority of the lot owners abutting on the line of said street between said points, and they therein agreed to pay for the paving in front of their respective properties only, according to the front foot rule.</p> <p>An ordinance was accordingly passed authorizing the paving of said entire block with sheet asphalt on a concrete base, and providing that the assessment therefor should be separately made by the city engineer “at the completion of the improvement by apportioning the entire cost, except intersections and the part to be paved by the York Railways Company, or its successors, on all the properties fronting on said highway in proportion to the number of feet each property fronts thereon.”</p> <p>In pursuance of the provisions of this ordinance the city let a contract for the paving of the entire block as specified in both the petition and the ordinance. It is admitted that this block had originally been paved by the city in 1904 with concrete blocks, which were still in place but in very bad condition at the time when this petition for repaving the same was presented to councils.</p> <p>At or about the time when work was commenced on the contract, the city was notified that the non-signing lot owners abutting upon this block would refuse to pay any assessment for this paving, whereupon the contractor proceeded to pave in front of the properties of the petitioners only. This seems to have been done at the instance of the city authorities, though it does not appear in the evidence that this change was authorized by any corporate or municipal action.</p> <p>This work was finished in October, 1910, and the assessment for the same was laid by the city engineer early in November, 1910, which the defendant refused to pay.</p> <p>In the spring of 1911 by reason of complaints about the condition of the street in front of the non-signing lot owners the city repaired the old asphalt paving by taking up and relaying the blocks and supplying new ones where they were needed.</p> <p>. It is well settled that the cost of repaving or repairing a street after the original paving has worn out, must be borne by the city itself, and cannot be assessed against the abutting lot owners, except by their unanimous consent, and it is immaterial whether the original paving was paid for by the city or by the lot owners: Harrisburg v. Segelbaum, 551 Pa. 172; Boyer v. Reading, 151 Pa. 185.</p> <p>In this case, therefore, the petition, though signed by parties owning a majority of the foot frontage along the block in question, gave the city no authority under the Act of May 23, 1889, P. L. 277, 288, to assess the non-signing lot owners. When they objected and notified the city that they would not pay, the work should have been stopped for want of authority to carry it forward under the terms of the petition and the ordinance, or notice of the proposed change in the extent of the work should have been given to the petitioners. But without doing so, the city undertook to carry out a part of the work authorized by the petition and the ordinance, and then proceeded to assess the defendant by the front foot rule as much as if entire work prayed for and authorized by ordinance, had actually been performed.</p> <p>This the defendant contends the city had no right to do, and he therefore denies his obligation to pay his said assessment. It seems clear tliat the city had no right to assess him independent of the petition signed by him and others. If there is any ground for recovery, it must be upon the quasi contractual relation established between the city and the petitioners on the terms of the petition and the resulting ordinance. But the city has failed to perform the work therein specified and for which alone the petitioners agreed to pay.</p> <p>On the west side of George street within the block named, there were 85.7 lineal feet left unpaved, and on the east side 117.4 feet, extending in each case to the trolley tracks in the street. The entire length of the block is 476.7 feet so that the unpaved portion thereof was about one-fourth and one-fifth respectively on the east and west sides of the street. This is the portion in which the old asphalt blocks were taken up and relaid as before stated, some months after the completion of the work of paving the other portion of the street and after the assessment for the same had been laid.</p> <p>It is contended by the plaintiff that this amounted to a substantial performance of the work agreed upon between the petitioners and the city, for which reason the plaintiff was entitled to recover. But this is not substantial performance either in law or in point of fact, when we consider the extent of the unfinished work, under what we construe to have been an entire contract. Neither does it fall within the decisions cited, in which a recovery was sustained when the whole work contracted for was actually completed and accepted by the city, and the lot owner’s objection only went to minor details or defects. As against such defects the individual lot owner can only defend pro tanto by showing that they were in front of his property and obtaining a reduction in the assessment. But that is not this case.</p> <p>We see no reason why the ordinary rule that defeats a recovery of a part performance of a contract, which is an entirety in its nature, should not apply to this case.</p> <p>The petitioners desired the paving of the entire block, and that was the consideration which moved them to agree to pay their respective proportions of the cost. It cannot be assumed that they would have been willing to do so, if they had anticipated that a part of the street would have been left in a defective and inferior condition.</p> <p>Under the express terms of the original petition, the defendant was only bound to pay his proportion of the cost of the paving of the entire block. Under the assessment laid upon him by the city, he would be compelled to pay the same amount as if the entire block had 'been actually paved, and in addition thereto, he would be liable to taxation, for the repairs to the street in front of the lots of the non-signing property holders. He would, therefore, get less benefits and be ultimately compelled to pay more money under the plan thus forced upon him by the city,, than under the terms of the agreement which he had voluntarily made. In Boyer v. Reading, 151 Pa. 185, which was a repaving case, the court recognizes the injustice of the condition imposed upon the defendant under the circumstances of this case, in the following language, “The petition of the citizens can give neither authority nor jurisdiction to assess the abutting owners. It may in certain cases, bind the petitioner, but not the citizen who does not so request. It is manifest, therefore, that unless all ask, the burden will rest unequally.</p> <p>The willing citizen who petitions might be required to pay his pro rate assessment as well as his full general share of the city taxes in addition, for the general fund, and other citizens nothing. Any assessment or tax and collection against the latter being illegal, could be restrained.</p> <p>If the whole work contracted for under the petition and ordinance had been completed, the defendant might have been estopped from refusing payment under certain of the authorities, but in no case have we found its liability enforced notwithstanding a noncompletion of the work as in the present case.</p> <p>In Beaver Boro. v. Davidson, 9 Pa. Superior Ct. 159; Dewhurst v. Allegheny, 95 Pa. 437; Sewickley M. E. Church’s Appeal, 165 Pa. 475; and similar cases, defendants were held estopped from denying the constitutionality of the legislation or the sufficiency of the signatures appended to the petitions and similar technical details because the work was fully completed and the petitioners' had reaped the full benefit of the same.</p> <p>The main contention of the plaintiff is, that the defendant is estopped by his silence in not objecting to the work before its completion and before the assessment was laid for the cost thereof. But it nowhere appears in the evidence that at any time before the completion of the paving in front of the lots of the petitioners, defendant knew that the city intended to pave less than the entire block.</p> <p>In the absence of notice, or of information to the contrary, he had a right to infer that the work would be completed according to the terms of the petition, the ordinance, and the contract. He had not agreed to contribute towards the paving of any fractional part of the block, and had therefore no reason to anticipate being compelled to do so.</p> <p>In Bidwell v. Pittsburg, 85 Pa. 412, the petitioner had himself acted as superintendent of the work, had sold the bonds, and made the assessment. After the completion of the work he was held estopped from denying the validity of the act of assembly under which it was done, but the court intimated in that case, that those who were not so estopped by reasons based upon their personal conduct might not be liable to such assessment, and this matter was referred to by the court in Boyer v. Reading, 151 Pa. 185.</p> <p>We find no case among those cited in support of this alleged estoppel of the defendant in which the municipality had failed to perform the work agreed upon in its entirety, or in which the defendant was without previous notice or knowledge of the reduced extent of the work proposed by the city. In the absence of such notice or knowledge, the defendant was manifestly not called upon to protest against the action of the city and is therefore not estopped from defending against it now.</p> <p>It is only he who did not speak when he ought to have spoken in the light of the knowledge which he then had, and whose silence was a fraud upon, or worked an injury to the other party, who is estopped thereby: Rhawn v. Edge Hill Furnace Co., 201 Pa. 637; Boyer v. Reading, 151 Pa. 185; Huss v. Jacobs, 210 Pa. 145.</p> <p>In Wickham v. Twaddell, 25 Pa. Superior Ct. 188, it was specifically held that silence works no estoppel against a party who had no knowledge of the facts which would otherwise have impelled him to speak. Neither is the defendant estopped by his silence as to facts of which the city had knowledge, or as to which its means of obtaining knowledge were as good as his own.</p> <p>Upon a full review of the law and the facts in this case, we have found no sufficient reason to change the conclusion reached by the court at the trial of the case.</p> <p>Now, to wit, April 11, 1912: The motions for a new trial and for a judgment non obstante veredicto are both refused and overruled.</p> <p>Error assigned was in giving binding instructions for defendant, and in refusing judgment for plaintiff n. o. v.</p>

<p>Road law — Change of grade — Petition for viewers — Ordinance.</p> <p>1. Although a petition for the appointment of viewers to assess damages for change of grade under the Act of June 12,1893, P. L. 459, may not be fatally defective because it fails to set forth the ordinance, or to aver in so many words that the damages are the proximate and immediate result of the change of grade, yet, if after viewers are appointed, the municipality files an answer setting forth the ordinance, and it appears that the averments of the petition are inconsistent with the ordinance, the court will quash the petition for the appointment of viewers.</p> <p>2. In such a case the general rule that a motion to set aside or strike off the judgment must be based on an irregularity appearing on the face of the record, is not applicable; nor will the fact that the petitioner might have amended his petition, prevent the court from quashing the proceedings, if it appears as a fact that the petitioner never made any application to amend.</p>

<p>Appeal, No. 212, Oct. T., 1912, by John B. Lennig, surviving executor, from decree of O. C. Phila. Co., Jan. T., 1891, No. 142, dismissing exceptions to adjudication in Estate of Charles Lennig, deceased.</p> <p>Exceptions to adjudication.</p> <p>Anderson, J., filed the following opinion:</p> <p>The testator by his will provided:</p> <p>“As executors of this my will I appoint my sons Nicholas and John Bouligner Lennig with a compensation to them for its faithful Execution of Ten thousand Dollars to each of them; having while living amply provided for these my Sons I have not otherwise remembered them in this my will than as incidental Legatees.”</p> <p>■ The compensation thus provided for was paid to the accountants out of former accounts. Claiming however that they had performed extraordinary services in the sale of certain timber on lands in West Virginia, they took credit in the present account for additional compensation. In his original adjudication the auditing judge disallowed this credit, and upon exceptions the account was recommitted to him in order that he might take testimony as to the services rendered. In his readjudication, after calling attention to the fact that Judge Penrose in adjudicating the third account of the executors had allowed commissions at the rate of two and one-half per cent on the sale of real estate, the auditing judge reiterates his opinion that the executors are not entitled to further compensation for services, and in support thereof cites Hays’s Estate, 183 Pa. 296.</p> <p>We think the decision of the Supreme Court in the case cited fully sustains the auditing judge. In that case the compensation given by the will was $1,000, to each of the executors, while commissions at the rate of three per cent would have amounted to $18,000. Mr. Justice Green delivering the opinion of the court said: “We held in Shippen v. Burd, 42 Pa. 461, under a will which prescribed the method and the extent of the compensation which was to be received by the executors for all the services to be performed by them, the executors were bound by the provisions'of the will in this respect. There was a trust to be executed in relation to certain real estate, and as to this the executors claimed additional compensation because they were acting as trustees which was a service outside of their duties as executors. But we held that although this was a trust the executors were bound to execute it as executors, and it was therefore part of their duty as executors, and the compensation provided for them as executors must be regarded as and conclusive upon them as to all duties which devolved upon them in the execution of the will. . . . The fundamental principle upon which this decision was based was that the executors having accepted their office under the will were bound by its terms in respect of the compensation they were to receive as such.” And, after citing Mr. Justice Paxson in Harper’s Appeal, 111 Pa. 243, he said: “He (the executor) is under no obligation to accept the trust. If he does not like its terms he is perfectly at liberty to decline it. But. if he accepts it and claims his right to act as executor under the will, certainly he is bound by the terms in which that right is given.” And he concludes: “Their compensation for services as executors was definitely fixed by the will at $1,000 each. They accepted the office as executors with full knowledge of this provision, and there is no good reason why they should not be bound to comply with the conditions upon which they held their title.”</p> <p>Applying this rule to the present case we find that the executors accepted this trust with the full knowledge that their duty included not only a conversion and accounting for the personal estate but also the turning over to his trustees “of the net proceeds to be derived from the sales of my [his] real estate when and as the same shall have been by my executors sold and converted into personalty.” This necessarily implied that the executors should perform the services necessary for such conversion. Whether therefore we consider this timber as realty or personalty it was directly under the terms of the will. Admittedly this estate has taken a long while in its settlement, and required constant duties on the part of the accountants, and that there have been numerous accounts filed; but, if the executors had considered the compensation fixed by the testator as insufficient for the services necessary to carry out his will, it was their right and privilege to decline to accept the offer. Having qualified as executors under the will and received the compensation fixed thereby, it is now too late to repent their bargain and ask for additional payment.</p> <p>Nor did the evidence before the auditing judge disclose any special services rendered b'y or on behalf of the executors. The witness who testified as to investigation to determine the adequacy of the price at which the timber was sold, also testified that he was employed by the trustee to whom the fund will ultimately go.</p> <p>It is true that Judge Penrose, in the third account filed, allowed compensation for services rendered in the sale of real estate. But there is nothing to show that any objection was made thereto, or that his attention was called to the clause of the will by the executors’ services were compensated. And the auditing judge was not bound by the prior adjudication is settled, so far as this court is concerned, by the opinion of Judge Gest in Kellerman’s Estate, 356 April 1911, which contains an elaborate review of the cases on the subject.</p> <p>The exceptions are dismissed.</p> <p>Dallett, P. J.: I cannot concur in this opinion as under all circumstances of the case I would have allowed the commissions as claimed.</p> <p>Gummey, J., concurs in this dissent.</p> <p>Filed June 15, 1912.</p>

<p>Appeal, No. 42, March T., 1913, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 1912, No. 335, on verdict for plaintiff in case of P. S. Coyne v. Lackawanna County.</p> <p>Assumpsit for services rendered. Before Heydt, P. J.</p> <p>Verdict and judgment for plaintiff for $70.00. Plaintiff appealed.</p> <p>Errors assigned ar,e indicated in the opinion of the Superior Court.</p>

<p>Appeal, No. 219, Oct. T., 1912, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1909, No. 341, on verdict for plaintiff in case of Edward C. Brink v. Troy Borough.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, J.</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1-16) various instructions, quoting them.</p>

<p>Appeal, No. 5, Oct. T., 1912, by Wayne Herkness, from judgment of O. P. Montgomery Co., June T., 1911, No. 21, on verdict for plaintiff in case of George D. Heist, trading as G. H. Heist & Son, v. Edward Montayne, contractor, and John Gundlach, owner or reputed owner, and Wayne Herkness, intervening defendant.</p> <p>Scire facias sur mechanic’s lien. Before Swartz, P. J., and Weand, J.</p> <p>The facts are stated in the opinion of the Superior Court. At the trial the jury rendered a verdict by agreement in favor of the plaintiff for the amount of the. claim with interest, subject to the right of the intervening defendant to appeal from the order of the court discharging rule to strike off the lien, and making absolute the rule to amend the lien.</p> <p>Errors assigned were the orders on the respective rules.</p>

<p>Appeal, No. 68, Oct. T., 1912, by plaintiffs, from decree of C. P. Schuylkill Co., March Term, 1909, No. 4, dismissing bill in equity in case of Annie D. Russel v. W. K. Woodbury, W. K. Wood-bury, Administrator d. b. n. c. t. a: of Estate of Andrew Russel, deceased, and E. A. Beddall.</p> <p>Bill in equity for an injunction.</p> <p>Bechtel, P. J., filed the following findings of fact and conclusions of law:</p> <p>FINDINGS OF FACT</p> <p>1. That in the deed from the executors of Andrew Russel to Annie D. Russel, conveying to her the property on Second street in the borough of Pottsville, the property is described as beginning at a point ten feet north of the office building and does not include the ten feet in controversy; and further that ingress and egress to the said property was specifically provided for in the deed, as follows: “Together with the use of the four feet wide alley on the north side of the lot hereby conveyed in common with the occupants of the premises east of said lot; the cost of keeping said alley in good order and repair to be borne by the parties using said alley in proportion to the number of feet in the respective lots opening into said alley.”</p> <p>2. The executors of Andrew Russel reserved to themselves the right to drain their cesspool or privy belonging to their said office building and which was situated partly on this ten foot space in controversy, through the lot conveyed to the said Annie D. Russel.</p> <p>3. That Samuel R. Russel had, under the will of Andrew Russel, his father, an equal joint interest with his brothers and sisters in the said brick office building, and in the ten foot open space in controversy, now claimed adversely.</p> <p>4. That prior to the erection of the three story brick house on the lot so conveyed to Annie D. Russel in 1876, there was a two story frame dwelling house on the lot and a board fence leading from the house along Second street to the brick office building; which said frame building was occupied by the plaintiff as a tenant under the executors of Andrew. Russel, during which time the user of the ten foot open space had its beginning.</p> <p>5. That when the said three' story brick building was erected, no opening for windows or doors was left in the south wall of the said building looking upon or opening into the ten foot space in controversy; but, on the contrary, windows and a door opened to the four foot wide alley on the north of the property, provided as a means of ingress and egress for said lot in the deed to Annie D. Russel.</p> <p>6. That the origin of the use as alleged by the plaintiff in the bill was permissive and no change in the character of such use • has been shown, nor has such use been shown to have been adverse or exclusive.</p> <p>7. That Annie D. Russel was the wife of Samuel R. Russel, who is now dead.</p> <p>8. That Henry Russel, one of the executors of Andrew Russel, deceased, was the agent for plaintiff in the collection of her rents from the three story brick house between 1888 and 1902.</p> <p>CONCLUSIONS OF LAW</p> <p>1. That, under the pleadings and evidence in this case, the use shown by the plaintiff is permissive and not adverse.</p> <p>2. That it having been shown by the pleadings and the. evidence that the use of the alleged right of way began by permission, and the presumption of law is that the same continued to be permissive and not adverse, and the burden was upon the plaintiff to show when, if ever, it became adverse.</p> <p>3. That adverse possession is not to be made out by inference, but by clear and positive proof; and every presumption is in favor of possession in subordination to the title of the true owner.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 114, Oct. T., 1912, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1911, No. 4,189, on verdict for plaintiff in case of Peninsula Produce Exchange of Maryland v. Peter S. Scott, trading as P. S. Scott Company.</p> <p>Assumpsit for goods sold and delivered. Before Ferguson, J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict and judgment for plaintiff for $554.96. Defendant appealed.</p> <p>Errors assigned were (1-14) various instructions.</p>

<p>Appeals, Nos. 204 and 205, Oct. T., 1912, by Wesley J. Price et al. and Daniel E. Newell, from judgment of C. P. Monroe Co., Sept. T., 1911, Nos. 29 and 41, on verdicts for W. J. Price et al. in suits by W. J. Price et al. v. Daniel E. Newell and by Daniel E. Newell v. W. J. Price et al.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J.</p> <p>At the trial it appeared that on July 2, 1911, a collision occurred between the automobiles of the respective parties at Pocono Manor. Both machines were damaged. Each party contended that the other was on the wrong side of the road and otherwise mishandled his machine.</p> <p>On the subject of the measure of damages the court charged as follows:</p> <p>If you find that the contention of Price Brothers as to how the accident happened is correct and that it happened because of the negligence of Daniel Newell, then Price Brothers would be entitled to whatever damages you find, by reason of the injuries sustained, if any. [Upon that we say to you that the measure of damages would be what the cost of reasonably repairing the automobile was, and in considering that you should consider also whether it was possible to have put that automobile in as good shape as it was before, and if it was, then the measure of damages and the whole measure of damages would be the actual cost of the repairs. There is a lack of testimony as to how much it actually would have cost to have put it in repair, and we therefore think that would be unsafe for you to consider, although if you find from the evidence it can be, then you may find that” as the basis of damages, the amount, however, not to be more than the machine was actually worth at the time of the accident.] [7]</p> <p>[If you find there was no way in which you could properly arrive at that, than you may fix the measure of damages as to the actual repairs made to the machine, if you believe they were necessary and actually made, and that was $157.88,] [8] and the difference in the market value of the machine before the injury happened and after it was repaired.</p> <p>[It is not in every injury to personal property that that is the proper criterion or measure of damages, because it is almost impossible to arrive at it in that way with some things. Take, for instance, a suit of clothes that a man has on; after a man has worn that for some time, there is probably no measure of damages which would be based on market value before and after they were injured, and there are many other things the same way, but it seems to the court that you would be warranted in finding that secondhand automobiles were so common and so much an article of commerce, dealt in by people, that you could arrive at that fact, as to what its actual market value was as a secondhand automobile. And in that, while you should consider the testimony of all the expert witnesses, you are not absolutely bound by them, so you have the right to apply your own sense and good judgment to the matter, not guess, but apply it.</p> <p>What is a secondhand automobile worth? What makes a secondhand automobile? Its use? Is an automobile secondhanded a week after it is used; has it depreciated in value? How was this automobile taken care of? What condition was it in at the time of the accident? You have heard the testimony that it had been repaired and it was about the same as new, and then what was it worth after the accident. You have heard the testimony of the witnesses. I think that they vary from $1,800 to $1,900 before the accident and from $400 or $500 to $600 after. Mr. Price, one of the plaintiffs, puts it at $1,800 before the accident and $600 after-wards. Of course the testimony of this kind is to be received with care, because, as a rule, no man will estimate the value of his property less than it really is, and wé are all very apt to think our property is worth more than the other fellow thinks it is worth. [You take the market value, the fair market value before the accident and after, and by method of subtraction, you find the difference and add to that the $157.88 and that would be the amount of damages which Mr. Price would be entitled to, if you find that the accident happened through the negligence or want of care of Mr. Newell.] [9] And, we apply the same measure of damages in case you find that it was not Mr. Newell’s fault, but the fault of the driver of Mr. Price’s machine, Orville Price. If you find in favor of Mr. Newell on that proposition, then Mr. Newell would be entitled to damages for whatever injuries you find his car sustained, and the testimony with reference to that is, that the cost of repairs was $531.21, and if you find that those were necessary repairs and actually made, he would be entitled to a verdict of that amount and also the difference in the market value of his machine before and after, which, as we remember it, was estimated at $1,900 before and $1,000 after. That was the plaintiff himself, and another witness said $1,900 or $1,950 before and $900 to $950 to $1,000 after. And that is subject to the same remarks with regard to care in arriving at the market value of the machine, because it is practically the same kind of testimony.</p> <p>Verdict for W. J. Price et al. in the first suit for $1,422.88 on which judgment was entered for $1,200, all above that amount having been remitted. In the second suit there was a verdict and judgment for defendant W. J. Price et al. Both parties appealed.</p> <p>Errors assigned were various instructions, including in Newell’s appeal (7-9) portions of charge above quoted.</p>

Appeal, No. 90, Oct. T., 1912, by George F. Henris, from decree of O. C. Montgomery Co., Sept. T., 1911, No. 3, dismissing exceptions to adjudication in Estate of Annie Fray Henris, deceased. Exceptions to adjudication.

<p>Appeal, No. 28, Oct. T., 1912, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1907, No. 2,550, on verdict for plaintiff in case of David McClure v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Ferguson, J.</p> <p>At the trial it appeared that the plaintiff was seriously injured on May 9, 1907, while in the employ of the Kensington Hygeia Ice Company at Trenton avenue and Huntingdon street, city of Philadelphia. The circumstances of the accident are fully stated in the opinion of the Superior Court.</p> <p>At the trial the plaintiff presented the following points:</p> <p>1. If the jury believe from the evidence that the plaintiff McClure was placed in a position of sudden peril by the near approach of defendant company’s locomotive, without due warning, then the plaintiff was not bound to remove to such place as it now appears would have been the safest place. The plaintiff in sudden peril was bound only to use his best judgment under all the circumstances, and if plaintiff jumped to a position that he believed was safe, or to the only place that he could have reached in safety, to avoid being struck by the engine, he was not guilty of contributory negligence. Answer: I affirm that point. [1]</p> <p>2. If the jury believe from the evidence that the plaintiff McClure was through no fault of his own placed in a position of sudden peril through the approach of the defendant’s engine without reasonable warning having been given, then plaintiff was not then bound to use all possible means of safety, but if plaintiff acted in good faith and assumed a position, either at or inside the wall, that he believed to be safe, and if his conduct under all the circumstances was that of a man of ordinary prudence, he was not guilty of contributory negligence. Answer: I affirm that point. [2]</p> <p>3. If the jury believe from the evidence that the plaintiff and his fellow workman, upon the approach of the locomotive, left the tracks and assumed a position which plaintiff believed to be safe; that the engineer of the locomotive saw plaintiff in this position, and that the engineer knew or ought to have known that plaintiff was in a position of danger, and that the engineer had the time to warn plaintiff of his danger before the train started out of the siding yard, it was the duty of defendant’s engineer to give that warning, and failure to do so was negligence, for which the defendant company is answerable. The jury is entitled to consider, in determining whether the engineer knew the place where plaintiff was to be dangerous, the testimony of the engineer and the other witnesses of the length of time the engineer had been operating an engine on this particular siding; also the engineer’s testimony that he was familiar with the hang-over of different length cars, and with the length of the cars which were coupled to the engine on this siding just prior to this accident. Answer: I affirm that point. [3]</p> <p>4. If the jury believe from the evidence that the conductor, engineer or any other member of the crew of defendant’s shifting engine which was drawing the car that crushed plaintiff, saw the plaintiff in a position that the conductor, engineer or other member of the crew who thus saw. the plaintiff knew to be dangerous, and that there was sufficient time before the engine completed the coupling and started out of the yard to have given plaintiff warning and to have allowed plaintiff to remove from the dangerous place, it was the duty of such member of the crew to give that warning, and failure to do so was negligence, for which defendant is answerable, if the failure to give such warning resulted in the injury to plaintiff. Answer: I affirm that as a correct statement of the law. [4]</p> <p>6. Irrespective of whether plaintiff and his companion were placed in sudden peril by the negligence of defendant’s servants, if plaintiff was seen by any of the crew of the engine to be in a position of danger and there remained time for plaintiff to be warned of his danger, and to be permitted to move to a place of safety, it was the duty of any member of the crew who saw plaintiff in such dangerous place to give him warning and to take reasonable precaution to give plaintiff the opportunity to escape before the train was put in motion on its way out of the shed or yard; and if the failure to so warn plaintiff and to allow him to seek a safe position was responsible for the injury to the plaintiff, the defendant company is answerable to plaintiff for the negligence of its employee. Answer: I affirm that point. [6]</p> <p>Defendant presented these points:</p> <p>1. It is in proof by the defendant, not denied by the plaintiff at the trial, admitted by him in his release and therefore an established fact, that the negligence of the Kensington Hygeia Ice Company contributed to the accident in which the plaintiff was hurt. This negligence of the Hygeia Ice Company makes it and the defendant (were the defendant in fact negligent) joint tort feasors, and a release given to the one would in law discharge the other from liability to the plaintiff. Such a release having been given to the Hygeia Ice Company, there can be no recovery against the defendant in this suit. Answer: Refused. [6]</p> <p>2. All the presumptions are in favor of the integrity of a solemn instrument duly executed and sealed in the presence of credible subscribing witnesses, and these presumptions are not to be overcome by any such loose, uncertain and doubtful testimony as was offered by the plaintiff in this case against the release offered in evidence. Answer: Refused. [7]</p> <p>3. Under all the evidence in the case the verdict should be for the defendant. Answer: Refused. [8]</p> <p>Verdict and judgment for plaintiff for $1,500. Defendant appealed.</p> <p>Errors assigned were (1-8) above instructions, quoting them.</p>

Appeal, No. 197, Oct. T., 1912, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1911, No. 4,190, on verdict for plaintiff in case of Elizabeth Schenck et al. and The Media Title and Trust Company, Guardian of Latemore Williams, a minor, v. Anna M. Clyde. Ejectment for land in the twenty-third ward of the city of Philadelphia. Before McMichael, P. J. The facts are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs.