Volume 56 — Pennsylvania Superior Court Reports

Appeal, No. 144, Oct. T., 1913, by defendant, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1910, No. 2,501, on verdict for plaintiff in case of Caterina Milantoni v. Frank Di Berardino. Assumpsit for wages. Before McMichael, J. Verdict and judgment for plaintiff for $594.72. Defendant appealed. Errors assigned were various rulings on evidence and instructions.

<p>Appeal, No. 44, Oct. T., 1913, by defendants, from judgment of C. P. No. 1, Phila. Co., March T., 1911, No. 3,046, on verdict for plaintiff in case of William J. Einfeld v. Joseph H. Shermer et al.</p> <p>Assumpsit for breach of an implied covenant for quiet enjoyment. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $672. Defendants appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned judge erred in admitting in evidence the lease from Sigmund Apfelbaum to William J. Einfeld, dated January 1, 1911, and containing a covenant for the payment of a rental of $1,350 a year by the lessee to the lessor.</p> <p>2. The learned judge erred in admitting in evidence the letter from Samuel W. Pennypacker to Frank P. Prichard, Esq., which letter is as follows:</p> <p>“October 17, 1910.</p> <p>“Dear Sir:</p> <p>“I see that in the matter of the Shermer Estate, which you offered at Sheriff’s sale on the first Monday of this month, the purchaser has not complied with the bid. As representing several of the terre-tenants, may I suggest to you that it is desirable to have the sale made as promptly as may be convenient, and I suggest that you require the payment say of $500 at the next sale, which will probably insure compliance with the bid made.</p> <p>“Yours very truly,</p> <p>“Sam’l W. Pennypacker. “To Frank P. Prichard, Esq.,</p> <p>“Land Title Building,</p> <p>“Philadelphia.”</p> <p>3. The learned judge erred in overruling the defendants’ first point for charge, which point was as follows:</p> <p>As the plaintiff in this case instituted suit against Joseph H. Shermer, John B. Shermer, Isabella D. Bowen, Margaret M. Coffin, and Edward S. Parrott, executors, the suit'was improperly brought, and the error is not cured by the entry of a nol. pros, as to Margaret M. Coffin and Edward S. Parrott, executors, and your verdict, therefore, must be for the defendants.</p> <p>4. The learned judge erred in overruling the defendants’ second point for charge, which point was as follows: , .</p> <p>As the only written authority to A. G. Murphy to make the lease, for the breach of which this suit is brought, was a letter of attorney executed December 1, 1890, by Joseph H. Shermer, A. Harry Bowen, and Isabella D. Bowen, his wife, John B. Shermer, and Edward C. Miller, and Mary E., his wife, and as Mary E. Miller, one of the principals, died in the year 1894 prior to the execution of the said lease, the authority to A. G. Murphy to act as agent was terminated, and the said A. G. Murphy had no authority to make the said lease for the defendants, and your verdict, therefore, must be for the defendants.</p> <p>5. The learned judge erred in overruling the defendants’ third point for charge, which point was as follows:</p> <p>As the said A. G. Murphy had no authority to make the said lease, the said plaintiff was a tenant at will and his tenancy was ended by the sale under the foreclosure of the mortgage and your verdict must be for the defendants.</p> <p>6. The learned judge erred in overruling the defendants’ fourth point for charge, which point was as follows:</p> <p>As the plaintiff entered into possession of the premises under lease of August 9, 1906, and he had legal notice of the existence of the mortgage of April 1, 1876, and had legal knowledge of the fact that the said estate was subject to the said mortgage, and if any injury was suffered by him, it was damnum absque injuria, and your verdict must be for the defendants.</p> <p>7. The learned judge erred in overruling the defendants’ fifth point for charge, which point was as follows:</p> <p>As there was no eviction under the lease, there was no breach of contract by the defendants, and your verdict must be for the defendants.</p> <p>8. The learned judge erred in overruling the defendants’ sixth point for charge, which point was as follows:</p> <p>As the plaintiff before any eviction and during the existence of the alleged lease attorned to the purchaser, at the sheriff’s sale, Sigmund Apfelbaum, your verdict must be for the defendants.</p> <p>9. The learned judge erred in overruling the defendants’ seventh point for charge, which point was as follows:</p> <p>As the heirs at law, as set forth in the alleged lease were Joseph H. Shermer, John B. Shermer, Isabella D. Bowen, Edward C. Miller, tenant by courtesy, of the estate of his deceased wife, Mary E. Miller, deceased, and Rebecca S. Miller, the only child of the said Mary E. Miller, deceased, and a minor at the time of the execution of the alleged lease, the plaintiff has failed to join all the parties to the alleged agreement, and as the alleged contract of lease is a joint contract, there can be no recovery against some without a recovery against all, and your verdict, therefore, must be for the defendants.</p> <p>10. The learned judge erred in overruling the defendants’ eighth point for charge, which point was as follows:</p> <p>As the plaintiff in this case seeks damages for the breach in the contract of lease of an implied covenant of quiet enjoyment of the premises from January 1, 1911, to January 1, 1912, and as this suit was commenced April 15, 1911, before the year expired, the said suit was prematurely brought, and your verdict must be for the defendants.</p> <p>11. The learned judge erred in overruling the defendants’ ninth point for charge, which point was as follows:</p> <p>The plaintiff in this case has failed to prove that the defendants instigated, expedited and procured the foreclosure of the said mortgage, and he is, therefore, only entitled, if at all, to nominal damages.</p> <p>12. The learned judge erred in overruling the defendants’ tenth point for charge, which point was as follows:</p> <p>The plaintiff has suffered no damage in this case, and your verdict must be for the defendants.</p> <p>13. The learned judge erred in overruling the defendants’ eleventh point for charge, which point was as follows:</p> <p>Under all the evidence in this case, the verdict must be for the defendants.</p> <p>14. The verdict was contrary to the evidence.</p>

<p>Appeal, No. 137, Oct. T., 1913, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1912, No. 458, on verdict for plaintiff in case of Emma Johnson v. Philadelphia Rapid Transit</p> <p>Company.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, P. 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 $942.97. Defendant appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendant.</p>

Appeal, No. 33, March T., 1913, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1908, No. 464, on certificate for defendant in case of Philadelphia Drying Machinery Company, Incorporated, v. A. J. Kummerer. Assumpsit for the balance of the purchase price of a drying machine. Before Strauss, J. The facts are stated in the opinion of the Superior Court.

Appeal, No. 176, Oct. T., 1913, by Cyrus C. Gelwicks, from decree of 0.. C. Franklin Co., dismissing exceptions to auditor’s report in Estate of Frederick G. Strock, deceased. Exceptions to report of T. Z. Minehart, Esq., auditor.

<p>Attachment execution — Ownership of fund — Partnership—Conflicting evidence as to partnership — Case for jury.</p> <p>1. On the trial of an attachment execution where it appears that the fund was attached as the individual property of the defendant and it is claimed that it really belonged to a partnership consisting of the defendant and his father, and the evidence is conflicting as to whether such partnership legally existed, the case must be submitted to the jury.</p> <p>2. In such a case where the amount of the fund attached is not disputed; it is not error to exclude the record of another action between different parties showing how the fund was produced. Such evidence is wholly immaterial to the issue.</p>

<p>Contract — Cancellation—Evidence.</p> <p>In an action of assumpsit where it appears that defendants had agreed to sell yarn in certain consignments to plaintiff, and that subsequently the defendants had turned the contract over to a third party who had agreed to make the deliveries at an excess price, and that defendants had assumed liability for the excess to the plaintiff, the defendants cannot set up in a suit for such excess, an alleged cancellation of the contract by themselves and the third party, where it appears that the third party had delivered all the yarn and received the pay therefor, although at one time through a'misunderstanding of certain facts the third party had notified the plaintiff of the cancellation of the contract, but had subsequently resumed and completed the shipments.</p>

<p>Negligence — Railroads—Grade crossing — Signals—Evidence.</p> <p>1. In a personal injuries case where the issue turns on whether signals were given by an express train passing a grade crossing at a high rate of speed, there is sufficient evidence to carry the case to the jury where two witnesses for the plaintiff, one an experienced trainman, testify positively that their attention was fixed upon the train as it passed the crossing, and that no signal by whistle or bell was given; and this is the case although all of the trainmen testify that signals were sounded.</p> <p>Negligence — Railway—Infant—Damages.</p> <p>2. In a suit against a railroad to recover damages for personal injuries to a boy eight or nine years old where a witness for the plaintiff testifies without objection in regard to the opportunity for labor and wages of boys in the vicinity, such testimony will not be stricken out, after the witness has been subjected to an extended cross-examination on the subject.</p> <p>3. Such evidence is in itself not improper where the age, occupation, and condition in life of the father and mother are shown, and also the age, state of health and physical and mental capacity of the boy.</p>

<p>Appeal, No. 9, Oct. T., 1913, by E. H. Flick, Assignee of Fred Haller, from decree of C. P. Blair Co., June T., 1897, No 51, directing payment of money In the Matter of E. H. Flick, Assignee for creditors of Fred Haller.</p> <p>Petition for payment of money.</p> <p>Baldridge, P. J., filed the following opinion:</p> <p>F. D. Saupp, Jr., executor of the last will and testament of F. D. Saupp, Sr., presented a petition to this court setting forth the fact that the auditor appointed to distribute the funds in the hands of the assignee of Fred Haller, appropriated $2,426.42 to a judgment held by F. D. Saupp against Fred Haller, and that the allowance was excepted to by the assignee.</p> <p>That on January 26, 1898, the assignee presented his petition to this court, asking for a rehearing of his exceptions to the auditor’s report which had been dismissed, and the report confirmed absolutely, and a rule granted to show cause why the prayer should not be granted.</p> <p>On March 7, 1898, the assignee was directed to pay F. D. Saupp, Sr., the sum of $1,605, on account of the amount allowed him by the auditor.</p> <p>The rule to show cause why a rehearing should not be had lay dormant and undecided until March 11, 1910, when the rule was discharged and the petition dismissed. An appeal was taken from the order and decree of the court to the Superior Court, which appeal was quashed at the cost of the appellant.</p> <p>We are now requested to order and direct the assignee to pay to the petitioner the sum of $672.54, balance alleged to be due under the report of the auditor, together with interest from January 10, 1898.</p> <p>The respondent denies that he is indebted to the petitioner on the ground that the auditor surcharged him for interest without being requested so to do by F. D. Saupp, Sr., or his counsel.</p> <p>It ought to be very apparent that we cannot disturb the report of the auditor after the expiration of thirteen years. The assignee filed exceptions thereto, which were heard by the lower court, and if there was any wrong done him he had a remedy by an appeal therefrom. We must treat the report of the auditor as conclusive upon all matters upon which it passed.</p> <p>On June 12, 1912, which was some six weeks after the filing of this petition, a receipt was filed of record by Messrs. Heinsling & Madden, who were the attorneys for F. D. Saupp, Sr., before the auditor, acknowledging an agreement between F. D. Saupp, Sr., and the assignee, to the effect that the assignee was to pay their attorney fees, and thereupon the assignee should be relieved from paying any additional portion of the amount with which he was charged by the auditor.</p> <p>F. D. Saupp, Sr., died in 1906, thereupon the authority vested in the attorney by the decedent was at an end, as it terminated at the death of their client: Scranton Building Association v. Ranck, 4 C. P. Reports, 134.</p> <p>The property of the decedent descended to the executor, and as it is not contended that either of the attorneys for the decedent, represented the executor, they were without authority to act on his behalf, as death operated as an immediate termination of the relation of attorney and client even though the litigation was pending: 13 Am. & Eng. Enc. of Law (2d ed.), 328.</p> <p>Both the decisions and text-books recognize that death revokes the attorney’s authority, so that when the receipt was filed by Messrs. Heinsling & Madden they were without authority to enter and record a satisfaction of the claim of the estate of F. D. Saupp. Therefore as the paper purporting to be a satisfaction, was filed by one without authority, it is not an accord and satisfaction of this claim.</p> <p>This question could have been raised more directly, we think, by asking to have the receipt stricken from the record, but the record shows that F. D. Saupp, Sr., was dead at the time the receipt was filed, and, therefore, it can be attacked collaterally: O’Brian v. Wiggins, 14 Pa. Superior Ct. 37.</p> <p>The respondent attempts to attach to his answer written statements made by Messrs. Heinsling & Madden, but in any aspect of the case these statements are inadmissible.</p> <p>Section 5 of the Act of Assembly approved May 24, 1887, P. L. 188, provides, “Nor shall counsel be competent or permitted to testify to confidential communications made to him by his client, or be compelled to disclose the same, unless in either case this privilege be waived, upon the trial by his client.”</p> <p>The privilege granted by the act of 1887, is for the purpose of protecting the client, not the attorney: Bennet’s Estate, 8 W. N. C. 287; Kaut v. Kessler, 114 Pa. 603.</p> <p>If we could see our way clear to relieve the assignee of paying a portion of the interest, we would feel like doing so, as we believe the application for a rehearing was delayed for causes over which he had no control. Our Superior Court, however, held that the assignee’s proper remedy was an appeal from- the original decree confirming the auditor’s report, and that he could not extend the time for taking an appeal by obtaining a rule to show cause why a rehearing should not be had. The assignee would, therefore, be liable for the interest from the date of the confirmation of the auditor’s report. Upon the circumstances, however, we think it is right and equitable that he should not be charged with more than four per cent interest.</p> <p>An averment was made that $150 was paid by the assignee to the attorneys of F. D. Saupp. If it can be shown by proper evidence that the payment was made at the request of F. D. Saupp, Sr., and was not a part of the attorney’s commission in the execution issued by F. D. Saupp, a further credit will be allowed of that amount to the respondent.</p> <p>Now, October 31, 1912, E. H. Flick, Esq., assignee, directed to pay F. D. Saupp, Jr., executor of F. D. Saupp, Sr., the sum of $672.54, with interest at the rate of four per cent per annum from January 10, 1898. This decree will be modified by permitting a credit of $150 with interest, if sufficient evidence is offered within twenty days to show that such payment was made by the assignee to the attorneys of F. D. Saupp, Sr., at his request.</p> <p>Error assigned was decree of October 31, 1912.</p>

<p>Road, law — Townships—Illegal cutting of trees — Opening of streets.</p> <p>A township of the first class will not be liable in damages to the owner of trees cut down by one of the supervisors of the township in opening a supposed street, where it appears that the supervisor was not authorized to cut down the trees by the township council, that the street in question was a mere paper street shown on a plan of lots never recorded, and that neither the owner of the land had opened the street, nor the public authorities had ever accepted it as a highway.</p>

<p>Waters — Damages by flood — Act of God — Evidence—Case for jury— Railroads.</p> <p>1. An act of Providence as related to cases of injurious negligence, is one against which ordinary skill and foresight is not expected to provide. Whether a particular injury is attributable to such a cause, or is the consequence of negligence is ordinarily a question of fact.</p> <p>2. In an action against a railroad company for the flooding of land alleged to have been caused by insufficient pipes under a fill, where the defendant alleges that the injuries were due to an extraordinary flood, and the evidence on the subject is conflicting, it is proper for the trial judge to submit the case to the jury with the instruction that if the flood was extraordinary, one such as could not reasonably have been anticipated as likely to occur in the particular stream, the defendant could not be held for the loss, unless it was in part the result of the negligence of the defendant arising out of its failure to maintain an outlet for the stream adequate to allow the flow of water likely to exist during ordinary floods, regard being had to the extent of the watershed, and the precipitateness of the hillsides.</p> <p>3. In such a case the plaintiff may also show that the outlet was hot only insufficient in size, but so constructed in the location of the two pipes that the two currents created in close proximity, caused drift of various lands to lodge in the space between the pipes and thereby greatly increased the accumulation of drift, with the result that the mouths of the pipes were clogged and closed.</p> <p>4. The plaintiff may show the relative capacity of an old culvert under the fill, when there was a single track, and the capacity of the new tracks under the fill when the pipes were doubled. Such evidence is competent for the purpose of showing knowledge or opportunity of knowledge by the defendant of the requirements as to the size of the culvert.</p> <p>5. A mere averment in the plaintiff’s statement that the defendant had maintained a sufficient culvert which had been removed at the time when the two pipes were placed, is not material to the right of recovery, and does not preclude the plaintiff from showing that a larger but inadequate provision existed before the iron pipes were used.</p>

<p>Wills — Construction—Tenant for years — Failure to repair — Act of May U, 1887, P. L. 188.</p> <p>Where testator appoints his widow as executrix and further directs that all of his real estate “shall be held by. my estate and the rents, issues and profits arising therefrom during the period of twenty years immediately succeeding my death shall be paid to my wife if she lives so long, she however, to pay all taxes, repairs, insurance and charges made thereof during said period,” and further directs a sale of the real estate at the end of the period of twenty years, the widow takes the real estate as a tenant for years, and not as executrix, and if she fails to make proper repairs the remedy against her is not in the orphans’ court by a rule for the appointment of a sequestrator, but in the common pleas by proceedings under the Act of May 24,1887, P. L. 188.</p>

<p>Wills — Codicil—Construction—Nephews and nieces — Distribution:</p> <p>1. Testator by his will directed that the residue of his estate should be “distributed to and among all my nephews and nieces per capita.” By a codicil he directed as follows: “In the distribution of my estate, it is my desire and wish, and I so order and direct that it shall be governed by the intestate laws of the State of Pennsylvania excepting and excluding however, from any participation therein the following named persons.” Then followed the names of two nieces, children of a living brother named, and “all the children” without naming them, of a deceased brother, naming him, excepting one son, named. The deceased had five brothers; only one of whom survived him, but all the deceased brothers left children surviving, and living at the death of the testator. He also had a sister who survived him with five children living at his death. Held, that the estate was to be distributed per capita in accordance with the will with the nieces and nephews mentioned in the codicil excluded,</p> <p>2. Where a clear intention is expressed in a will, such intention is not to be set aside by a codicil, except where the provisions of the codicil are manifestly inconsistent with it.</p>

Appeal, No. 73, Oct. T., 1912, by Henry K. Parmer, from decree of O. C. Lancaster Co., Aug. T., 1905, No. 4, dismissing exceptions to adjudication, in Estate of Henry J. Parmer. Exceptions to adjudication. The opinion of the Superior Court states the case. Error assigned was in dismissing exceptions to adjudication.

<p>Appeal, No. 87, Oct. T., 1913, by defendant, from judgment of C. P. Lancaster Co., March T., 1913, No.' 32, on verdict for plaintiff in case of Elizabeth B. McMinn v. Richard Cummings and Christianna Cummings.</p> <p>Ejectment for twenty-acres of land in Eden, formerly Bart township. Before Hassler, J.</p> <p>At the trial it appeared that on June 27, 1848, George Oatman conveyed the land in question to his brother, Zachariah Oatman, but never delivered possession of it. Zachariah Oatman died in 1901, leaving a will by which he bequeathed the property to Elizabeth B. McMinn. The defendants claimed title by adverse possession under George Oatman.</p> <p>James Oatman, a son of' George Oatman, testified that in 1854, when he was nine or ten years of age, Zachariah Oatman came to George Oatman and demanded possession of the property, and that such possession was refused.</p> <p>James Oatman’s testimony was as follows:</p> <p>"A. My first recollection I was about nine or ten years old. Q. You were born you say in 1845? A. Yes. Q. He came there. A. Yes, sir. Q. If he had any conversation with your father about this property, tell us what it was. A. Well, there wasn’t very much of it. Only he just asked for the farm, or the place, that he wanted it. That was about all. Q. Did he or not demand that your father remove from the place? A. Yes, sir. He left there then. Q. What did your father say to that? A. Well, I don’t know as he said very much, only he couldn’t have the farm. Q. He refused to move, did he? A. Oh, he never moved. Q. I say he refused to move? A. Oh, yes. He said he would not move.”</p> <p>Objected to as leading.</p> <p>“Q. What if anything did your father say to Zachariah Oatman about this deed that he had made him being a fraud and that the property did not belong to Zachariah Oatman but belonged to him? A. Well, I don’t think he said it that day. There wasn’t anything said that day about it. Q. Then you have given about all the conversation that took place? A. That is about all I heard of it then. Q. Were these men, your father and Zachariah Oatman, in good humor or bad. A. Before they left they were in bad humor. Q. Now then, did or not your father say to Zachariah Oatman that if he wanted that property he would have to put him off? A. That is just what he said.”</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned amongst others was in refusing binding instructions for defendants.</p>

<p>Appeal, No. 182, Oct. T., 1913, by defendant, from judgment of C. P. Chester Co., Aug. T., 1912, No. 78, on verdict for plaintiff in case of The National Bank of Coatesville v. W. B. Palmer.</p> <p>Assumpsit on a promissory note. Before' Butler, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,023.65. Defendant appealed.</p>

<p>Criminal law — Conspiracy—Evidence—Manipulation of corporations.</p> <p>A conviction for conspiracy will be sustained where the evidence showed a long and complicated series of acts, extending over a period of years; the creation of a number of corporations, each and every one of which constantly remained under the control of the same persons; a line of transactions by which the assets real or apparent of one corporation were shifted to the treasury of the next until all of them disappeared from the view of the stockholders who had furnished the real money embraced in the transactions; and that these transactions constantly required the action and co-operation of two or more people to do the things that were done.</p>

<p>Money lenders — License—Refusal of licenses — Discretion of court— Appeals.</p> <p>1. On an appeal from an order of the quarter sessions refusing a license for the business of lending money, as provided by the Act of June 5, 1913, P. L. 429, the appellate court cannot examine the evidence, but as the court below is required by the act to file an opinion on refusing a license, the appellate court may examine the opinion for the purpose of ascertaining the reasons or grounds of the decision, and it may reverse the order, if the reasons for refusing the license are not legal ones.</p> <p>2. The power of the quarter sessions to grant or refuse a license for the business of lending money is a discretionary power, to be exercised primarily for the public good, and secondarily for the private interest.</p> <p>3. An order of the quarter sessions refusing to a corporation a license for the business of lending money will be sustained, where it appears from the opinion of the court below that the corporation had illegally engaged in the business of lending money without a license after the passage of the Act of June 5,1913, P. L. 429, that one of the directors had conducted the business of lending money at the same place as the corporation proposed to conduct it, had charged enormous rates of interest, and had announced a purpose to collect the enormous charges that were outstanding.</p>

Appeal, No. 66, Oct. T., 1913, by defendant, from order of C. P. Del. Co., Dec. T. 1912, No. 10, making absolute rule for judgment for want of a sufficient affidavit of defense in case of S. Knopf v. Sam Lax. Appeal from judgment of justice of the peace. Rule for judgment for want of a sufficient affidavit of defense. Johnson, P. J., filed the following opinion: This is a rule for judgment for want of a sufficient affidavit of defense.

<p>Contract — Sale—Warranty—Breach of warranty — Damages.</p> <p>1. What the plaintiff is entitled to recover where the breach of warranty is proved is the difference between the value of the chattel as warranted and its value in the condition in which it actually was.</p> <p>2. In an action on the warranty of a horse it is reversible error for the court to charge in effect that if there was a breach of warranty what the plaintiff was entitled to recover was the difference between what he had paid for the horse, and the amount he subsequently received for it at a public sale; and this is especially so where there is no evidence of the value of the horse at the time that plaintiff bought him, except as might be inferred from the price paid, and the defendant’s evidence is strong in support of the claim that the horse was sound at the time of the sale.</p>

<p>Justice of the peace — Possessory proceedings — Fieri facias — Judgment,</p> <p>1. An appeal lies to the common pleas from the judgment of a justice of the peace entered on a scire facias sur judgment for damages and costs rendered by the justice in a proceeding instituted by a purchaser at sheriff’s sale to obtain possession of the premises sold. Where the defendant takes such an appeal the common pleas has jurisdiction to enter a judgment in the plaintiff’s favor, if the facts and the law warrant it, and to issue a fieri facias to collect the judgment.</p> <p>Res adjudicata — Bankruptcy as defense — Rule to set aside fieri facias.</p> <p>2. On a rule to set aside a writ of fieri facias, the defendant cannot allege that he was discharged as a bankrupt prior to the date when the judgment was entered. Such a defense was available only at the trial.</p> <p>3. A judgment will be conclusive not only as to matters actually litigated and decided, but as to every ground of recovery and defense that might have been presented and decided.</p> <p>Statutes — Repeal—Judgment—Acts of June 16,18S6, P. L. 765, and April 20, 1905, P. L. 289.</p> <p>4. There is nothing in the Act of April 20,1905, P. L. 339, to indicate that the legislature intended to strike down a judgment entered by a justice of the peace under the Act of June 16,1836, P. L. 755, five years before the passage of the act of 1905.</p>

Appeal, No. 162, Oct. T., 1913, by defendant, from judgment of C. P. Lancaster Co., Feb. T., 1913, No. 10, on verdict for plaintiff in case of Aaron S. Sabm v. John D. Bair. Replevin for a horse. Before Landis, P. J. At the trial the jury returned a verdict for plaintiff. On rules for new trial and for judgment for defendant n. o. v., Landis, P. J., filed the following opinion: The plaintiff was in the horse and livery business in the borough of Manheim.

<p>Appeal, No. 260, Oct. T., 1913, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1910, No. 56, on verdict for plaintiff in case of Walter S. Bickley v.’ Southern Pennsylvania Traction Company.</p> <p>Trespass for injuries to an automobile. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $1,121.10. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Executors and administrators — Husband and wife — Renunciation by husband — Nominee of husband — Nonresident.</p> <p>Where a creditor of a married woman has been appointed her administrator, such appointment will not be vacated, and the husband of the decedent or his appointee be granted letters, where it appears that the husband had renounced and had not subsequently withdrawn his renunciation, that the husband had lived most of the time away from his wife, and bigamously married another woman, and that his nominee was a nonresident who had been selected by representatives of a railroad company against which a suit was pending for injuries sustained by the decedent.</p>

<p>Landlord and tenant — Ejectment—Termination of lease — Rent—Suit for rent. '</p> <p>Where a lessor has terminated a lease by entering judgment in ejectment, and the lessee has surrendered the possession under compulsion of the plaintiff’s proceeding, although not under the actual compulsion of a writ, the lessor cannot recover rent as such, for the period after removal either by virtue of the general covenant in the lease to pay rent or by virtue of a special clause therein that “no such determination of this lease nor talcing nor receiving possession of the premises shall deprive the lessor of any action against the lessee for the rent or for damages.”</p> <p>Sipps v. Pusey, 49 Pa. Superior Ct. 326, explained.</p>

<p>Appeals — Certiorari—Quarter sessions — Order dismissing desertion proceedings.</p> <p>Under the Act of May 9, 1889, P. L. 158, an appeal from a final order made by the court of quarter sessions in a prosecution for desertion instituted under the Act of April 13, 1867, P. L. 78, operates only as a common-law writ of certiorari, and on such appeal the appellate court cannot pass upon the evidence, but only upon the regularity of the proceedings as disclosed by the record. In such a case a finding that the prosecutrix was not in fact the wife of the defendant, cannot be reviewed by the appellate court.</p>

<p>Master and servant — -Wages—-Deduction for store bills.</p> <p>1. In an action against a corporation for wages where the defendant sets up as a defense an alleged oral agreement by which the plaintiff agreed that Ms store bills at a store owned by the defendant’s president should be deducted from his wages, and the evidence as to such a contract is conflicting, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.</p> <p>2. Where the existence or the terms of a contract, and not its validity or construction is the issue, and the evidence is conflicting, or the question depends on the intention of the parties, the question of the existence of the terms of the contract, is one for the jury.</p>

<p>Appeal, No. 103, Oct. T., 1913, by plaintiff, from decree of C. P, Lehigh Co., Sept. T., 1912, No. 2, dismissing bill in equity in case of The Congregation of the United Brethren of the Borough of Emaus and Vicinity v._ Borough of Emaus, Daniel R. Miller, Burgess et al.</p> <p>Bill in equity for an injunction.</p> <p>Trexler, P. J., found the facts to be as follows:</p> <p>1. That the plaintiff is a corporation under and by virtue of the act of general assembly, approved April 29, 1874, P. L. 73, having been duly incorporated by the court of common pleas of Lehigh county on October 19, 1893, the charter thereof being recorded in the office of the recorder of deeds of said county in Charter Docket No. 3, p. 220, and that the office of the corporation is located at the borough of Emaus, Lehigh county, Pennsylvania.</p> <p>2. The defendants are the borough of Emaus, a municipal corporation in the county of Lehigh and state of Pennsylvania, incorporated' and operating under and by virtue of the act of general assembly, approved April 3, 1851, P. L. 320 and D. R. Miller, burgess; James Kidd, John D. Laudenslager, William Miller, Harrison J. Stephen, Martin J. Backenstoe, Charles P. Acker, Albert Hoffert, members of councils of said borough.</p> <p>3. That the plaintiff is a religious corporation.</p> <p>4. That the plaintiff on January 16, 1885, by deed of conveyance, dated on said date, and wherein the board of elders of the Northern Diocese of the Church of the United Brethren in the United States of America was the grantor, and the Congregation of the United Brethren of the borough of Emaus, plaintiff, was the grantee, acquired title, inter alia, to two certain tracts of land situate in the borough of Emaus, and bounded and described as follows, to wit: ....</p> <p>5. That on May 6, 1912, the councils of the borough of Emaus, defendant, passed, and on May 8, 1912, the burgess of said borough approved ordinance No. 130, providing for the opening of Ridge street from Keystone avenue eastwardly to the eastern limits of the borough, which said ordinance reads as follows:</p> <p>“An ordinance providing for the opening of Ridge street from Keystone avenue eastwardly to the eastern limits of the borough.</p> <p>“Be it ordained by the council of the borough of Emaus, and it is hereby enacted by the authority of the same.</p> <p>“Sec. 1. That Ridge street be opened from Keystone avenue eastwardly to the eastern limits of the borough as located to the width of fifty-seven feet.”</p> <p>'6. That said Ridge street from Keystone avenue to the eastern limits of the borough passes over and through the lands of the plaintiff as described in paragraph four, supra, and that the entire and full width of the said street is wholly upon the lands of the plaintiff, dividing same into two parts.</p> <p>7. That the borough of Emaus made a draft and plotted and located the streets of the borough, and that the same was adopted by the borough on November 10, 1875.</p> <p>8. That at the time of the location of Ridge street on lands now owned by the complainant, the said land at that time and for a long time afterwards was used as farming land by the former owners and subsequently by the complainants up to April, 1910.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 57, Oct. T., 1913, by defendants, from decree of C. P. No. 1, Phila. Co., June T., 1912, No. 4,973, on bill in equity in case of Bernhard Englander and Therese Englander v. Sigmund Apfelbaum and Solomon C. Kraus. Bill in equity for an injunction. Magill, J., filed the following opinion: This case came on to be heard September 18, 1912, on bill, answer, replication and proofs.

Appeal, No. 132, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1912, No. 5,297, on verdict for plaintiff in case of George Baranski v. Bernard Wilmsen. Trespass to recover damages for personal injuries. Before Sulzberger, P. J. The facts are stated in the opinion of the Superior Court. The jury returned a special verdict which was as follows: 1.

<p>Appeal, No. 142, Oct. T., 1913, by defendant, from judgment of C. P. Franklin Co., Sept. T., 1912, No. 202, on verdict for plaintiff in case of Percy L. Naylor v. Frick Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The jury returned a verdict for plaintiff for $1,328.40.</p> <p>On motion for judgment for defendant n. o. v. Gillan, P. J., filed the following opinion:</p> <p>The plaintiff, an employee of the defendant, brought an action to recover damages for personal injuries alleged to have been due to the negligence of the defendant in nob providing for the plaintiff proper appliances. The jury found for the plaintiff. The defendant having made a request for binding instructions, which was refused, we have now this motion for judgment in his favor. The plaintiff testified that he was an employee of the defendant company as a molder. That on the morning of February 13, 1912, he went to work in the foundry at seven o’clock. That there was immediately delivered to him and several other workmen a flask, the top part being known as a cope; the lower part as a drag. These parts were moved about the shop suspended to the crane by chains. Each part of this flask was of the weight of at least several tons. The cope and the drag were bolted together. The plaintiff and his fellow workmen started to take out the bolts preparatory to shaking out the mould, that is, emptying the flask. On each part of the flask, that is, on the cope as well as on the drag, there are four handles. These handles are bolted to the parts and in the handle .is a ring. In these rings are inserted the hooks of the chain when the cope is moved. The only purpose of the handle and the rings is for-the purpose of hooking into it the chains by which it is moved. As the plaintiff and his fellow workmen were preparing to take this flask apart and shake it out preparatory to refilling it Mr. Gilbert, the foreman of the works, appeared and was told by Mr. Senseny,. one of the workmen, in the presence and hearing of this plaintiff, that a bolt was broken in one of the handles of the cope to which Mr. Gilbert replied, “All right, shake this cope out by hooking up on the flanges; I will get it fixed.” This flask was put in place and the cope was removed by hooking - in the flanges. It was removed about fifteen feet from the drag. The workmen then refilled the drag and about four hours after the cope had been lifted from the drag by the flanges they were ready to have it returned. The hooks of the chain were placed in the handles of the cope and the cope placed right over the drag. The plaintiff was putting a pin in the cope which was to extend from the cope to the drag and while doing this, without warning, the cope fell, cut his hand, amputated a finger and did him other injury. The plaintiff placed one of the hooks of the chain into one of the handles or ring but not into the handle which had been broken. When they were hooking up the cope the handle which he knew had been broken was on the opposite side from him but before it fell was reversed so that the handle which gave way and caused the fall was at the time it fell on the side towards this plaintiff. The plaintiff, before hooking up the cope, did not examine to ascertain whether the handle had been repaired or not. This is the testimony of the plaintiff. It is contradicted but, for the purpose of this motion and in consequence of the verdict of the jury, we are to accept'it as true and inquire whether or not it gives the plaintiff a prima facie cause of action. If there is a conflict of evidence on a material matter we would not be authorized to direct a verdict for the defendant and, therefore, cannot now enter judgment contrary to the verdict: Dalmas v. Kemble, 215 Pa. 410; Bond v. Railroad Co., 218 Pa. 34.</p> <p>“It is well settled that it is the duty of an employer to provide suitable' appliances with which his employee, exercising due care for his own protection, can perform his duty without being exposed to unnecessary danger:” McGrath v. Thompson, 231 Pa. 631.</p> <p>The rings were in the cope for the very purpose for which they were used when the accident occurred. The plaintiff knew four hours before the accident occurred that the handle was broken; according to his testimony the defendant promised to have it repaired. During that four hours the defective or broken appliance was not in possession of the plaintiff nor under his control. Whether it was negligence in him at the end of the four hours to use it without an examination to ascertain whether or not it had been repaired in view of the uncontradicted testimony that it could have been repaired in fifteen minutes is a question of fact to be passed on by the jury and not a question of law to be determined by the court: Brownfield v. Hughes, 128 Pa. 194; Webster v. Coal & Coke Co., 201 Pa. 278.</p> <p>“There may be and are cases where it is the duty of the court to say as a matter of law that an employee, who in the face of known danger continues in employment is guilty of negligence, even where a promise to repair has been made, but this occurs only when the recklessness of the act clearly evinces a disregard of the common rules of safety which ordinarily govern human conduct. Whether this could be affirmed of the conduct of this plaintiff the jury alone could determine from all the facts in the case:” Glass v. College Hill Borough, 233 Pa. 457.</p> <p>There was here no fixed standard of duty and it was, therefore, for the jury and not the court to say whether the plaintiff acted as a reasonably prudent man would have acted under the circumstances. It follows that we would not be warranted in entering judgment for the defendant notwithstanding the verdict for the plaintiff. Therefore, now, May 27, 1913, judgment for the defendant is denied and we direct the prothonotary to enter judgment on the verdict on the payment of the jury fee and we hereby certify the evidence and direct that it be filed so that it become a part of the record.</p> <p>A motion for a new trial was made on the ground that four jurymen had been withdrawn after the trial judge of his own motion, had made the following statement:</p> <p>It appearing that this action is an action to recover damages for the alleged negligence of the defendant company, by reason of which one of the employees of that company was injured, and it appearing that four employees of the defendant company have been called into the jury box among the twenty now called, from which the jury is to be selected, the court has said in the presence of the parties, and now repeats, that he is of the opinion that those gentlemen should not be required to sit in the jury, and ought to be relieved by consent of counsel, because it is unfair to the parties and to the jurors; while we recognize the fact that it is not a legal ground for challenge, we are of the opinion that they should be relieved from jury service in this case. This remark is made in the presence of the parties and in the presence of the jury before the jury is selected.</p> <p>Errors assigned among others were (4) in refusing defendant’s motion for judgment n. o. v. and (5) in refusing a new trial because of the withdrawal of the jurors.</p>

<p>Public officers — Clerk of the quarter sessions — Compensation—Fees—1 Advertising liquor licenses.</p> <p>The entire sum of $5.00 paid to the clerk of the court of quarter sessions of Montgomery county, by applicants for liquor license is not a fee to be credited by the county to the clerk in fixing his salary, but only such portion of that sum is to be so credited which remains after the advertising of liquor licenses has been paid for.</p>

Appeal, No. 224, Oct. T., 1913, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1911; No. 10, refusing to take off non-suit in case of H. H. Hobensack, Executor of will of Susan It. Hobensack, deceased, v. Amos J. Phipps. Trespass to recover damages for the cutting of trees. At the trial'the court entered a compulsory nonsuit.

<p>Appeal, No. 152, Oct. T., 1913, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1910, No. 3,712, on verdict for plaintiff in case of Percy Anderson, to use of David R. Perkinpine v. John Luther Long.</p> <p>Assumpsit on a contract. Before Kinsey, J.</p> <p>At the trial it appeared that the action was brought to recover the sum of $840, with interest from July 1, 1908, alleged to be due on a contraot, arising out of correspondence between John Luther Long, the defendant, of the city of Philadelphia, who'is a playwright, and Percy Anderson, of London, England, who is a costume-plate designer, for the preparation of a set of costume-plates for a play, written by the defendant, and known as “Kassa.”</p> <p>From the record it appeared that the suit was originally brought with the plaintiff named as follows: “David R. Perkinpine, Assignee of Percy Anderson.” Subsequently by leave of court the plaintiff’s name was amended so as to read as follows: “Percy Anderson to the use of David R. Perkinpine.”</p> <p>Prior to the amendment a commission had been issued to London to take the testimony of Percy Anderson.</p> <p>The deposition of Percy Anderson taken under the commission was objected to because the commission had been taken before the amendment had been allowed. Objection overruled. Exception. [1]</p> <p>Objection was also taken to the admission of the deposition because Percy Anderson was not produced personally in cross-examination in response to a notice dated April 11, 1913, the trial being on May 5, .1913. Objection overruled. Exception. [2]</p> <p>The following exceptions were made to the deposition:</p> <p>“That, as appears upon the envelope in which the said commission was returned, the said commission was not legally opened by the prothonotary or his deputy, in accordance with the rule of this court, but by a post office clerk, who is unidentified by name.</p> <p>“The entry upon the said envelope enclosing said commission is:</p> <p>“Opened by P. 0. Clerk in presence of H. A. Jermon at 2 p. M.</p> <p>“Upon the said envelope enclosing said commission, appears, however, this subsequent entry, as follows:</p> <p>“Returned opened and filed Sep. 16, 1902. R. Richardson, pro Pro thy.” Exception dismissed. [3]</p> <p>2. “That it does not appear upon the face of the commission, either by jurat to the deposition of the witness, or by a certificate of the • commissioner in or attached to said deposition, that the necessary oath as a witness, as required by law, although in the heading to said deposition of said witness, it is stated in typewriting: that he was 'produced, sworn and examined.’” Exception dismissed. [4]</p> <p>10. “That the said witness in said deposition, declines to answer a portion of the twenty-eighth cross-interrogatory, as follows:</p> <p>“Have you received any letters or communications of any kind, from the party by whom you have been called as a witness, or from any person on his behalf, respecting the matter in controversy in this suit; if aye, annex the same to your answers and request the Commissioner to properly mark them.”</p> <p>And the answer of the said witness thereto is as follows:</p> <p>“I have received letters from Sir Frank Crisp. I refuse to produce such letters. They are privileged communications.” Exceptions dismissed. [5]</p> <p>“Part of the second paragraph, twenty-seventh cross-interrogatory was as follows:</p> <p>“Have you or not sold said claim or action to him bona fide and for a valuable consideration, and if so, when did you sell said claim or action, and how much money did you actually receive on said purchase and sale of said claim or action, and how and'by whom was the same paid; was it paid by check or checks, draft or bill of exchange, or in cash, and if by check or checks, draft or bill of exchange, please state the name and address of the maker or makers thereof and the bank or banks on which it was drawn; in addition to the payment, if any, made to you or any other persons for you, by David It. Perkinpine, on assignment of this claim, please say do you or any other person for you expect to receive any further sum or sums thereon, and if so, what, and under what conditions and from whom; is there any arrangement whatever between you, or any other person for you, notwithstanding the assignment. If such further agreement has been reduced to writing, please identify the same, state whose signatures are attached, and hand it to the commissioner and request him to mark it and attach to your deposition. Is it true, that you yet own said claim or action, but have assigned it only for the purpose of suit and that no consideration passed on the assignment of said claim; if so, then state why you so assigned said claim and for what purpose, and at whose suggestion or recommendation and name any person or persons who have any interest in the same.”</p> <p>Mr. Smith: I object to the whole question, and especially to that part of it, because it’ is immaterial and irrelevant. The assignment speaks for itself.</p> <p>Mr. Rumsey: This goes to the bona lides of the assignment.</p> <p>•Objection sustained. Exception for defendant. [6]</p> <p>The court charged, inter alia, as follows:</p> <p>[The claim of plaintiff is based upon a contract made with him to do certain work, by certain letters written to him, which are in evidence before you; upon oné side, that the work was performed and corresponded with the directions contained in the letters, and it will be for you to say whether or not there has been a substantial compliance with those directions.</p> <p>The other side says, on the contrary, “Oh, no; that does not prevail here; that those specifications were written with a dominant keynote prevailing, namely, the tone of Hungary of the inaccessible portions, and the remote atmosphere incidental to that locale, and these costume plates, as they are called, do not comply with that, and therefore we do not accept them as a compliance.”</p> <p>Now, which is right about that is the question that you are to decide; the one side alleging that the work is not Hungarian; the other that it is substantially Hungarian, and that, in any event, it was done in accordance with the directions contained in the letters.] [7] Exception for defendant.</p> <p>[But this whole question is for you, taking all these matters into consideration, all the testimony you have heard, and that question is, has there been a substantial compliance with these instructions? You may take the instructions; take the letters, and these pictures, and compare them, and come to a conclusion.] [8]</p> <p>Plaintiff presented these points:</p> <p>4. That the letter wherein John Luther Long wrote to Percy Anderson stating, “Your terms will be satisfactory and I will see that a bill of exchange is sent you as soon as you let' me know that the plates are ready and then I will tell you how to‘ship them,” taken in connection with the letter of Percy Anderson notifying John Luther Long that plates were ready, constituted an obligation on the part of Long to send a check for the amount of Percy Anderson’s bill and also to send directions to the said Anderson how to ship the said plates and to whom, before the said Percy Anderson would be bound to release possession of the plates. Answer: That I affirm, if there was a substantial compliance with the directions as given by Long. [9]</p> <p>5. That if the jury believe from the evidence in this case that John Luther Long made the contract with said Percy Anderson and that the said Percy Anderson substantially performed his part of the contract by making said plates according to the general instructions from Long to Anderson, and the discretion as to originality and invention to be exercised by Anderson, then it was not necessary for the said Percy Anderson to tender said plates to John Luther Long before he could recover for the work and labor done. Answer: That I affirm. It should have been drawn with a slight difference under the contract, but I affirm it as it stands. [10]</p> <p>Verdict and judgment for plaintiff for $1,051.95. Defendant appealed.</p> <p>Errors assigned were, inter alia, (1-6) rulings evidence as above, quoting the bill of exceptions; (7-10) above instructions, quoting them.</p>

<p>Landlord and tenant — Lease—Notice to vacate — Reservation of right of sale.</p> <p>Where a lease creates a term of three years with privilege in the lessee to continue from year to year, and reserves to the lessor a right to sell the premises at any time after the termination of the three years, a further provision that in the event of such sale the lessee should have written notice to vacate at least four months and eighteen days before the end of the current year, does not deprive the landlord of his right to terminate the lease, if he does not sell, in any year upon giving the usual three months’ notice to quit.</p>

<p>Appeal, No. 161, Oct. T., 1913, by Crescent Pipe Line Company, from order of C. P. Huntingdon Co., No. “K,” May T., 1913, dismissing petition for appointment of viewers In re Petition of Crescent Pipe Line Company.</p> <p>Petition for appointment of viewers.</p> <p>See Crescent Pipe Line Company v. Jeffries, 52 Pa. Superior Ct. 407.</p> <p>Woods, P. J., filed the following opinion:</p> <p>This matter is before us on a petition by the Crescent Pipe Line Co. to appoint viewers for the purpose of condemning a certain strip of land across the farm of John M. Jeffries, in order to construct a pipe line, through which to convey oil for the purpose of furnishing the said oil to the customers of the said Crescent Pipe Line Co., a corporation chartered under the laws of Pennsylvania.</p> <p>The notice served on said John M. Jeffries informed him that the said company intended making application for the purpose of asking the court to appoint viewers, to assess damages for a telegraph line, while the bond is for a pipe line.</p> <p>The act of assembly confers upon pipe line companies the right of eminent domain, but we know of no act which extends the same right to telegraph companies. We are conversant with the facts in this case, the said .parties having been before us in an equity proceeding as determined by the Superior Court. John M. Jeffries succeeded his father, George Jeffries, in title, and is now the owner of the property over which it is sought to add this additional servitude. In 1891 the Crescent Pipe Line Company and George Jeffries came to an understanding or agreement by which Jeffries gave them the right to construct a pipe line over, through and under said land, provided they would not construct a line of telegraph poles on said right, but would establish said line of poles around his farm on the public road. In accordance with this agreement the said company did construct its line of pipes across the land as designated, and did build, construct and operate their telegraph line around said farm along the public road, and so operated both lines for sixteen years or more, and until after the death of the said George Jeffries, and until the said John M. Jeffries took possession of said farm, when the said company then undertook and did remove said telegraph line from the public road and constructed said line over, along and through the farm of the said John M. Jeffries, and against his consent, alleging that the agreement entered into with his father, the said George Jeffries, carried with it the right to build a telegraph line along the same right of way over, through, along and under, which the pipe line is now and has been operated for a period of over sixteen years.</p> <p>As we have said the right which George Jeffries gave to said company has been determined by the Superior Court, and was accepted by said company which operated its said line under said agreement for a period of over sixteen years, and then undertook to put a different construction upon said agreement. The contention on the part of the said company is that by virtue of the right of eminent domain conferred upon them by the act of assembly, they are entitled to have viewers by which they might obtain a further and greater privilege than they originally obtained under the agreement, by which they entered upon said land with their pipe line, and this in the face of an order of the Superior Court, directing them to remove their line of poles, from the land over which their telegraph line had been unlawfully constructed. The said company exercised its right by the use of its line under said agreement, and they cannot now condemn the strip of land by adverse proceedings in order to enlarge its rights when the act of assembly does not give them any right to condemn land for the purpose of constructing a telegraph line, thereby placing an additional and greater burden upon the land than that which they originally had by an amicable agreement. We think this case is ruled by the case of Woods v. Greensboro Natural Gas Co., 204 Pa. 606. We must therefore refuse to appoint viewers as prayed for. It is the duty of the said company to carry out the order of the Superior Court by removing the said telegraph line from said land.</p> <p>And now July 2, 1913, tne petition for the appointment of viewers refused.</p> <p>Error assigned was the order of the court.</p>

<p>Will — Construction—Gift to husband — Power to consume — Limitation on fee. v</p> <p>1. Where a testatrix gives her husband her real and personal property with the exception of certain household effects and directs that “after the death of my husband if there be eney estate left or personal property left, I want the won halfe to go to my perense if living, if not living, to go to my nices and nephews,” the husband takes a one-half interest in the real estate in fee, but no interest in the other hah which he could dispose of by will.</p> <p>2. The word “want” in such a will is to be treated as a mandatory and not a precatory expression.</p>

<p>Appeal, No. 200, Oct. T., 1913, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 132, on verdict for plaintiffs in case of G. F. Beloud and Eliza M. Beloud v. Sayre Borough.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial the jury returned a verdict for G. F. Beloud for $300 and for Eliza Beloud for $350.</p> <p>On a rule for a new trial and for judgment n. o. v. Maxwell, P. J., filed the following opinion:</p> <p>It appears that the Presbyterian church of Sayre, Pa., is the owner of a lot of ground on the east side of Elm avenue, in Sayre borough, this county, with a frontage of seventy-five feet. The sidewalk in front of this property was of large flagstone.</p> <p>In the fall of 1907, the said church entered into a contract with one Jay M. Ashton, a contractor, to repair and rebuild this church building located upon this lot.</p> <p>Early in October of 1907, the said J’. M. Ashton, contractor, upon his own responsibility, and without obtaining any license or consent of the municipal authorities of Sayre borough, took up and removed two of the large flagstones from said walk on the east side of said street, at or near the south line of the said church lot, in order to enable the contractor to handle loads of materials, etc., over said walk, with teams and wagons in and out of said lot, during the course of repairs and construction of said church building.</p> <p>This work of repairing the church was commenced by the contractor, and the flagstones from said walk removed, early in October, 1907, and the walk continued in that condition, until the accident to the plaintiff, on the evening of December 3, 1907, at between the hours of six and seven o’clock.</p> <p>The plaintiff claims, that at the time of the accident, there were frozen ruts in this sidewalk, where the flagstones had been removed, leading across the sidewalk made by the wagon wheels, in drawing heavy loads over the same, so that the walk at this point was uneven, full of ruts and rough. Some of the wagon tracks or depressions across the walk, were from two and a quarter to two and a half inches in depth, and towards the outside of the walk, and next to the street, the wagon tracks were from four to five inches in depth, or below the surface of the stone walk, upon either side of this crossing, and between the wagon tracks, the ground was rough and uneven.</p> <p>There was building material .piled up on either side of said walk, to a height of three to three and one-half feet above the walk. That the weather, at the time, was cold, ground frozen, and some slight snow had fallen, covering the ground, and that in places, the walk was slippery and icy.</p> <p>This was a street and sidewalk, much used by the people of Sayre. Mrs. Beloud claimed that she had been west, visiting during the fall, and returned home about November'15, 1907.</p> <p>That she commenced helping her husband, at his store, on the Monday previous to the accident, and in going to the store traveled this street, passing over along the west side, on the morning of the accident. She noticed the work being done at the church, as she passed on the opposite side of the street, going to her husband’s-place of business, saw the building material piled up there, but did not notice the driveway,’ into the church lot.</p> <p>On the evening in question, she started from her husband’s place of business for her home, between six and seven o’clock p. m. The evening was dark, saw no lights at the point of accident, and there was nothing to warn, or to give her any notice of the change in the walk. That she was walking along in the usual way, and when she reached this point, her foot while passing over this place, slipped, or went into a hole in the walk where these flagtones had previously been removed, and she lost her balance and fell upon the ground, sustaining injuries.</p> <p>The negligence of the municipality complained of by the plaintiff was in permitting this sidewalk to be used by the public, generally, from early in October to December 3, 1907, a period of some two months, with these flagstones removed, thereby destroying the uniform and even surface of the sidewalk, and permitting these ruts and uneven condition of the frozen ground to exist and continue for such a length of time, thereby rendering the sidewalk dangerous and unsafe to the; traveling public, without some warning signals or notice to the public, calling their attention to this condition and change in the sidewalk.</p> <p>The defense rested its case upon three grounds.</p> <p>1. That while the flagstones had been removed by J. M. Ashton, the contractor for the church, that the place had been filled up and kept filled up with dirt or gravel, so as to make the walk reasonably safe, and that there were no ruts or holes in said walk at the time of the accident, and that there were three red lights displayed at or near the north line of the church lot, where a sewer pipe was being laid for the church, some thirty-six feet north from where the flagstones had been removed. These lights were located along the sewer ditch, one light on the street at or near the street railway tracks, another light, halfway between the sidewalk, and the first light, and the third light, at or near the outside of the sidewalk. That in addition to these lights, there was an arc light not far from the intersection of Elmer avenue, with Packer avenue, about 150 feet from the point of the accident, and elevated about twenty to twenty-five feet above the ground. Also an incandescent light at Park place and Elmer avenue, about 100 feet, or so, south from the point of accident, and while these lights were not put up by the contractor, yet they were sufficient, so that persons could well see the sidewalk and its condition, on the evening of the accident, providing they were using due care, under the circumstances.</p> <p>2. That on this evening in question, the weather was cold and freezing, and that during the day or evening, it had rained, and that sleet had fallen, and the streets and sidewalks of the borough, including the point of accident, were all covered with ice and slippery, and that it was this icy and slippery condition, that was the proximate cause of the accident to the plaintiff, and for which condition the borough was not responsible.</p> <p>3. That even if the conditions in the sidewalk were as alleged by the plaintiff, and those conditions were the proximate cause of the accident to Mrs. Beloud, then the borough of Sayre would not be responsible therefor, for the reason that the party who changed the sidewalk and created the conditions complained of, was an independent contractor, for whose negligence the borough was not responsible.</p> <p>We submitted to the jury under proper instructions, the questions raised by the pleadings and testimony, with the exception of that part of the defense which interposed the question of the negligence of J. M. Ash-ton, independent contractor, as a complete bar to the plaintiff’s right of recovery, we reserved this question for future consideration.</p> <p>The verdict of the jury, under the charge of the court, implies a finding, that the defect in the sidewalk' had existed for such a length of time as to give the officials of the borough constructive notice of it, and this finding was fully warranted by the evidence, as it existed, from the forepart of October to the date of the accident. In this connection, we instructed the jury that there was no evidence of express notice to the officials of the borough.</p> <p>The verdict also establishes that there was no negligence on the part of Mrs. Beloud that contributed to the accident.</p> <p>It was conceded that the place where the accident occurred, was on one of the main public sidewalks of the borough of Sayre.</p> <p>It is not disputed that J. M. Ashton’s contract with the church was lawful and legal, and that he was an independent contractor, so far as the church was concerned. This we assume, in the disposition of this motion.</p> <p>It is conceded that Ashton and his employees, in the course of their work in rebuilding the church, removed the flagstones from this walk, hauled the loads over the walk that made the ruts, etc. Also piled the building material on either side of the stone walk, and as alleged by the plaintiffs did not take the necessary precaution to protect the place, or to warn the people using the sidewalk, of the change and danger, and this condition existed from early in October to the date of the accident, on December 3, 1907.</p> <p>The evidence in the case does not disclose any building permit having been issued by the borough authorities, permitting the removal of the flagstones, and the occupying of any portion of the walk for piling building material upon.</p> <p>An abutting property owner in Pennsylvania is by necessity, allowed to occupy temporarily, a portion of the public street in front of his or her premises for building purposes, for a reasonable time, and to a limited extent, if his or her obstructions do not impede or interfere with travel: Smith v. Simmons, 103 Pa. 32. But a permit or license from the municipality should be obtained for this purpose.</p> <p>“When a license is granted by the municipality, the rule of responsibility and relation of the borough and builder is to be analogous to that of the independent contractor:” 5 Thompson on Negligence, sec. 805.</p> <p>“In digging the sewer ditch without the written permission of the street commissioner he was a trespasser, and if his work rendered the street unsafe for ordinary travel it was the duty of the borough authorities, having actual or constructive notice of the dangerous condition created by him, to take proper measures to protect the public against it. In other words, a municipality cannot tolerate unlawful and dangerous obstructions on its streets and claim exemption from liability for injuries caused by them.</p> <p>“The cases cited to sustain the borough’s contention that it is not liable to the plaintiff for the injury she received in consequence of the work done by Rausch, are not applicable to the facts of this case. They are cases in which the work was done under a contract with or license from the municipality, while in this case the work was done without its permission and in violation of its laws. We see no occasion, and we are not disposed, to go a hair’s breadth beyond them in relaxing the supervision by a municipality of the streets within it:” Boyle v. Hazleton Boro., 171 Pa. 167. (Opinion of Justice McCollum, p. 176.)</p> <p>Whether the defendant borough has an ordinance which requires a building permit, we are not informed by any evidence in this case, but this we regard as immaterial.</p> <p>“It is now stated at the argument of this motion that there is no evidence in South Bethlehem which requires a building permit. A failure on the part of the borough, to regulate and restrict, for protection of the public, the temporary occupancy of its highways for necessary purposes seems to me, will enlarge, not diminish its responsibility; that it cannot then be exempt at any time from proper supervision, and will not be relieved from any kind of negligence by the builder of which it has actual or constructive notice. This rule does not impair his fundamental right of occupation, without being treated as maintaining a nuisance:” Rech v. South Bethlehem Boro., 10 Northampton County, 233.</p> <p>“When the temporary occupation of the road by a person engaged in building is necessary, due care must be taken to guard the public from the danger; and if this be left undone, the corporation is answerable for an injury occasioned by the obstruction, if sufficient time had elapsed for the corporation by reasonable vigilance to have discovered the obstruction and provided a safeguard:” Born v. Plank Road Co., 12 W. N. C. 283.</p> <p>“When ignorance of the defect is the result of omission of duty, actual knowledge of this existence is not an essential to the fixing of such liability.</p> <p>“If the exercise of proper supervision would have led to discovery by the municipality in time to remove it, or to protect the public against it, there is the same liability for an injury caused by the nuisance as if there had been notice or knowledge of it:” Norristown Boro. v. Moyer, 67 Pa. 355; Erie v. Schwingle, 22 Pa. 384.</p> <p>This case is not one in which the borough of Sayre had surrendered its control temporarily of the sidewalk in question, during these repairs, by the issuing of a building permit or license to J. M. Ashton, contractor, or to the Presbyterian church, neither is it a case where the borough had surrendered control of the sidewalk to an independent contractor, to do the work or make repairs on the sidewalk, for the borough or municipality. The jury has found by its verdict, that the conditions complained of by the plaintiff, as to the walk in question, was such that it was dangerous or not reasonably safe for travel, and that the plaintiff was injured thereby, without contributory negligence on her part, and that the borough authorities had constructive notice of its unsafe condition, and neglected to close up the sidewalk, but permitted the public to use the same during the repairs, without maintaining the same in a reasonably safe condition, and for this neglect of the borough, it was undoubtedly liable.</p> <p>“A municipality is not liable for the negligence of an independent contractor while engaged in the construction or repair of a street of which he has the exclusive control or charge, but to relieve the municipality from liability in such cases, the accident must be the result of the negligence of the contractor, and, he must have such exclusive control of the street where the accident occurs as to authorize him to prohibit the use of it by the public.</p> <p>“Whenever a municipality directs a street to be kept open and thereby invites the public to use it, an obligation is imposed on the municipality to see that it is maintained in a reasonably safe condition for travel:” Norbeck v. Phila., 224 Pa. 30.</p> <p>In the case at bar, the public were permitted to use the sidewalk in question without any effort or attempt upon the part of the contractor for the Presbyterian church, to guard the same, and the jury has found that this condition existed for a sufficient length of time to bring home to the municipality constructive notice of the situation, and in view of that finding, it seems to us that an obligation was imposed upon the municipality to see that this sidewalk was maintained in a reasonably safe condition for travel, and that for its neglect to perform this duty, it seems to us, the municipality is liable in this case.</p> <p>In the case of Charles E. Johnson Co. v. Phila., 236 Pa. 510, Justice Elkin, in delivering the opinion of the court in that case uses the following language (p. 514): “A municipality is not always relieved from liability for injuries resulting from the work of an independent contractor in repairing its streets. If, at the time of the commission of the negligent acts complained of, the contractor did not have the exclusive control of the street, with the authority to prohibit the use of it by the public, the city may be liable for failure to perform its duty in exercising proper care in the supervision and control of that street as a public highway. If, as we understand the facts in the present case, the city required the street to be kept open for use by the public while the repairs were being made,'the duty rested upon it to maintain the street in a reasonable safe condition for every purpose of a public highway.”</p> <p>If the city would be liáble under the above facts, it appears to us that the city or municipality would still be liable when the conditions created in the street were made by an independent contractor working for an abutting property owner, who had no permission or license from the municipality to change or occupy the sidewalk, and these conditions have existed for such a length of time that the city or municipality was affected with constructive notice, and failed to either close up the street or guard the same, we think the same liability would attach.</p> <p>We therefore think that the points submitted by the defendant upon the trial of the case in court could not be affirmed by the court, for the reason that they all called for binding instructions in favor of the defendant. Therefore, we do not discover any reasons filed why a new trial should be granted in this case.</p> <p>And now, to wit: June 16, 1913, the rule granted in this case, on September 24, 1912, to show cause why the verdict of the jury shall not be set aside and a new trial granted, is hereby discharged. Also the rule granted September 24, 1912, in this case, to show cause why judgment should not be entered for the defendant non obstante veredicto, upon the point reserved by the court, is also hereby discharged, and the prothonotary is hereby directed to enter judgment for the plaintiffs upon the verdict of the jury in the above case, for the amount of the verdict, with interest and costs, upon payment by the plaintiffs of the jury fee.</p> <p>Errors assigned among others were (1-5) in refusing defendant’s points without reading them to the jury; (6) in refusing judgment for defendant n. o. v.</p>

<p>Appeal, No. 16, Oct. T., 19Í3, by plaintiff, from judgment of C. P. Schuylkill Co., Jan. T., 1912, No. 292, for defendant non obstante veredicto in case of George Bensinger, Sr., v. Palo Alto School District.</p> <p>Assumpsit for cost of tuition and school books paid to Pottsville school district. Before Bechtel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>At the trial the court directed a verdict for the plaintiff for $119. Subsequently on motion the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Insurance — Life insurance — Forfeiture—Waiver—Premium note.</p> <p>1. Where an application for life insurance provides “that any note or obligation given for premium shall be accounted only as an extension of time for payment, and if not paid at maturity, all liability under any policy issued hereon shall at that date cease,” and a premium note provides that “if this note is not paid at maturity, with interest, all liability under said policy by reason of this note shall cease,” failure to pay such note at maturity works a forfeiture of the policy without notice to the insured; and requests subsequently made by the company for the payment of the note are not a waiver of the forfeiture; nor is the mere retention of the note a waiver.</p> <p>2. The mere fact that the company had previously accepted payment of an over-due note and reinstated the policy, is not in itself sufficient to establish a course of dealing which justifies the insured in believing that the strict terms of the policy would not be insisted on in the future.</p>

<p>Appeal, No. 207, Oct. T., 1913, by defendants, from judgment of Q. S. Potter Co., March Sessions,' 1912, No. 28, on verdict of guilty in case of Commonwealth v. George B. Wilcox, J. B. Jones, Appellants, and W. L. Norton.</p> <p>Indictment for conspiracy. Before Ormerod, P. J.</p> <p>From the record it appeared that defendants were indicted in the court below charged with having conspired and agreed together to cheat and defraud Charles A. Reynolds out of $300 by willfully, maliciously and falsely conspiring to circulate a statement in the Genesee Times that the Genesee Banking Company had a capital of $25,000, for the purpose of obtaining the moneys of Charles A. Reynolds, the said defendants being members of a partnership doing business as the Genesee Banking Company, and that the statement that the Genesee Banking Company had a capital of $25,000 was false and untrue.</p> <p>At the trial when Beverly L. Hurd, the publisher of the Genesee Times, was. on the stand he was asked this question:</p> <p>“Q. Did you afterward insert an advertisement in the Genesee Times? A. I did. Q. How did you come to put that advertisement in, at whose solicitation?”</p> <p>Objected to as incompetent and irrelevant unless at the solicitation of the two defendants on trial and within the period laid in the indictment.</p> <p>It must be one of the defendants.</p> <p>Objection overruled.</p> <p>“A. Well, now, I think I went to Mr. Johnson first and asked him for an ad, and I think some time later in the week of the first or second' week the bank was opened that W. L. Norton brought a cut on a little block of wood — a piece of metal on top of that had a picture on it and I think with that came some copy; that was the way the advertisement started in my paper, I think.”</p> <p>Mr. Swetland: I ask that this testimony be stricken out as it cannot possibly affect these two defendants on trial, Mr. Jones and Mr. Wilcox.</p> <p>Motion to strike out refused. To which ruling by the court counsel for the defendants except and at their request bill is sealed. [11]</p> <p>Defendants presented this point:</p> <p>5. The uncontradicted testimony in the case being that for a long time prior to the alleged offense the defendants were residents of the state of New York in the village of Wellsville, a short distance from Genesee, where the defendant, George B. Wilcox, still resides; that the defendant, J. B. Jones, removed to the state of Oklahoma some time in the latter part of the year 1907, where he resided at the time of the alleged offense; and both defendants being at their permanent residences engaged openly and publicly in business. The commonwealth has failed to show that the defendants are within the exception to sec. 77 of the act of March 31, 1860, and they should be acquitted. Answer: Refused, to which counsel for defendants except. Exception. [5]</p> <p>Verdict of guilty, on which the court sentenced the defendants to pay a fine of $600 and to undergo imprisonment in the Western Penitentiary for a period not to exceed two years, and not less than nine months.</p> <p>Errors assigned among others were (1, 2) in overruling motions to quash the indictment and arrest the judgment; (5) above instruction, quoting it, and (11) ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 202, Oct. T., 1913, by plaintiff, from order of C. P. Schuylkill Co., July Term, 1913, No. 171, refusing to take off nonsuit in case of K. D. Werley v. Weston Dunn.</p> <p>Replevin for two mules. Before Brumm, J.</p> <p>From the record it appeared that plaintiff early in November, 1911, sold the two mules in question and two brown horses to M. A. Rarick for $430. Two hundred and thirty was to be paid in notes, and $200 in cash. Plaintiff accepted from Rarick two checks one for $150 and one for $50.00, but these were not paid because of no funds in bank. ' Plaintiff insisted upon a return of the animals, but finally agreed to permit Rarick to retain possession of them if he would execute a lease for them. Rarick accordingly executed the following paper:</p> <p>“This agreement made this 10th day of Nov. a. d. 1911, between Kirby D. Werley, of Hamburg, Berks County, Pennsylvania, party of the first part, and M. A. Rarick, party of the second part, Witnesseth, that the party of the first part hereby leases and hires unto the said party of the second part the following article or articles to wit: 2 mules, (Seal Brown) two horses the description of which is as follows: 2 brown horses, 1 five years and 1 fourteen years old, 2 brown mules, 1MÍ years old, unbroke, for the term of 9 months from the date hereof, reserving for the hire or use thereof for the said term the sum of $430 payable as follows: Dollars at the execution of this agreement, and the residue in monthly payments of Dollars, said payments to be made on the day of each and every month, during the term of this lease, at the business place of the said party of the first part, to wit, Hamburg, Berks County, Pennsylvania; said deferred payments to be evidenced by a promissory note or notes given by the said party of the second part to the said party of the first part; and the said Lessee agrees as follows with the said party of the first part to wit, that he will pay the unpaid hire as aforesaid, the several days as it becomes due; that he will take good care of the said mules and horses, and will not, without the written consent of the party of the first part, sell or hire the same or part with the possession thereof; that he will, at any time when required, exhibit the said mules and horses to the party of the first part or his agent, and in case default be made in any of the payments as above agreed upon, or in case of the breach of any of the covenants aforesaid, or in case a petition in bankruptcy be filed by or against the said party of the second part, the said party of the second part agrees to forthwith deliver said property to the said party of the first part, or will permit the said party of the first part or his agent or agents to enter into or upon any premises where said property may be, and without let or hindrance take away the same, using such force as may be necessary in the removal thereof, hereby releasing all errors on writ of action which said party of the second part may have for such forcible taking, and the party of the second part further agrees to return said mules and horses to the said party of the first part, at his place of business in Hamburg, Berks County, Pennsylvania, at the end of the term of this Lease.</p> <p>“It is further agreed that all money paid or payable to the said party of the first part prior to said repossession shall be retained or recoverable by the said party of the first part as rent or hire for the use of said mules and horses without abatement or reduction.</p> <p>“The said party of the first part hereby agrees that if at the expiration of the term of this lease, the said lessee, Ms legal representatives or assigns, shall wish to purchase said mules and horses the said Kirby D. Werley will make and deliver to said Lessee, or such representative or assigns, a Bill of Sale thereof upon payment of such sum as will, with previous payments of hire amount to the sum of $430, but it is expressly understood and agreed by and between the said parties to this agreement, that no title to the said mules & horses, either legal or equitable, shall vest in the said party of the second part, except as Lessee under this agreement, until the terms of purchase as above provided, have been complied with, and before said Bill of Sale has been duly delivered by the said party of the first part.”</p> <p>About eight days after the execution of the above paper Rarick sold the mules to Weston Dunn," the defendant.</p> <p>At the trial 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>Evidence — Receipt—Handwriting—Payment—Case for jury.</p> <p>1. In an action by an executor against a nephew of the testatrix where the defendant exhibits a receipt and offers two expert witnesses, and a witness familiar with the handwriting of the decedent to support the genuineness of the signature, and the plaintiff offers a witness familiar with the handwriting to show that the signature was not genuine, and also produces genuine signatures, for comparison, the case must be submitted to the jury, and if there is a verdict and judgment for plaintiff, there will be n'o reversal by the appellate court.</p> <p>2. In such a case it is proper for the court to charge that if the jury found the signature genuineit is immaterial whether the debt had been paid or not, inasmuch as the decedent may have given the receipt to show that she had relieved her nephew from liability for the debt.</p>

Appeal, No. 238, Oct. T., 1913, by plaintiff, from order of C. P. No. 3, Pbila. Co., June Term, 1912, No. 2,525, discharging rule for judgment for want of a sufficient affidavit of defense in case of F. A. North v. August Gately & Guarantee Storage Company. Replevin for a piano. Rule for judgment for want of a sufficient affidavit of defense. The averments of the affidavit of defense are sufficiently set forth in the opinion of the Superior Court.

Appeal, No. 245, Oct. T., 1913, by Commonwealth, from decree of O. C., Phila. Co., July T., 1913, No. 287, dismissing exceptions to adjudication in Estate of Moses Rice, deceased. Exceptions to adjudication.

<p>Negligence — Automobiles—Speed,—Infant.</p> <p>In an action against the owner and driver of an automobile, for injuries to a boy five years old the case is for the jury, where the evidense tends to show that at the time of the accident the defendant was coasting his car on a grade down a street paved with fire brick and not traversed by a street car line, that he was going at a rate estimated by plaintiff’s witnesses at twenty-five miles an hour, and by the defendant at twelve miles an hour; that about the middle of the block a number of children were collected on the sidewalk visible to the plaintiff; that the boy was struck about four or five feet from the curb as he started to walk across the street oblivious to the approach of the car; and that plaintiff gave no signal as he approached the group of children.</p>

<p>Appeal, No. 153, Oct. T., 1913, by John Thiel, from order of C. P., No. 1, Phila. Co., Dec. T., 1912, No. 658, discharging rule to strike from the record the release of a lien of a mortgage in case of Harp Building & Loan Association to use of Laura Y. Fitch v. Frank C. Davis, Mortgagor, and Minna Schmidt, Real Owner.</p> <p>Rule to strike off release of a lien of a mortgage.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order of the court below discharging the rule.</p>

<p>Appeal, No. 169, Oct. T., 1913, by Elwood W. Watson, from judgment of C. P., No. 3, Phila. Co., Sept. T., 1909, No. 10, for plaintiff on answers in case of Mechanics’ National Bank of Trenton v. W. A. Buckman and George Buckman.</p> <p>Rule for judgment on answers to interrogatories and foreign attachment.</p> <p>William M. Stewart, Jr., J., filed the following opinion:</p> <p>This is a rule for judgment against the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee under the will of Isaiah Williamson, garnishee, for amounts admitted in the answers to the interrogatories to be due the defendants.</p> <p>The essential facts as they appear from the pleadings are as follows:</p> <p>On July 1, 1909, the Mechanics’ National Bank of Trenton issued a foreign attachment against William A. and George Buckman founded upon a claim upon a note, and on the same day summoned the Pennsylvania Company for Insurances on Lives and Granting Annuities as garnishees, attaching in the hands of said company “all sums of money, legacies and distributive shares due by. or from the Pennsylvania Company for Insurances on Lives and Granting Annuities as trustee or otherwise to the defendants or either of them.”</p> <p>On April 17, 1912, judgment was entered against the defendants for want of an affidavit of defense, and damages were assessed at $7,994. On March 1, 1913, interrogatories were filed, to which answers were made by the garnishee, averring, inter alia, that each of the said defendants was entitled to one thirty-eighth of one-fourteenth of a fund held under the second item of the will of Isaiah Y. Williamson, deceased, which, with interest, amounted, according to the adjudication of the orphans’ court, to $1,314.92 principal, and $68.79 income, due to each of said defendants; that said sums were payable to the defendants by reason of the death of Edward C. Williamson, and we are informed that this happened October 11, 1911. The garnishee further answered that it had been served with various other attachments and assignments, a memorandum of which was attached to the answers. The assignments and attachments which have a bearing on this issue are as follows:</p> <p>1. Assignment by George Buckman to John C. Loud, dated March 2, 1909, notice of which was served upon garnishee on July 23, 1909, wherein for the consideration of $1.00 the said George Buckman assigned all his interest in the estate of Isaiah V. Williamson “whether said interest be present or prospective, vested or contingent or residuary.”</p> <p>2. Foreign attachments which were served upon the garnishee on October 14, 1911, in the following suits: (a) Ellwood W. Watson v. William A. Buckman, C. P., No. 3, December Term, 1911, No. 36, wherein judgment was entered for want of an appearance on August 28, 1912, for $2,201.64, with interest from February 28, 1908, to August, 1912, $594.44; (b) Ellwood W. Watson v. George Buckman, C. P., No. 3, December Term, 1911, No. 39, wherein judgment was entered for want of an appearance on August 28, 1912, for the amount of the debt, $765.95, and interest $202.99; (c) A. C. Reeves v. George Buckman, C. P., No. 3, December Term, 1911, No. 40, wherein judgment was entered for want of an appearance on August 28, 1912, for the amount of the debt, $213.93, and interest, $59.09; (d) A. C. Reeves v. William A. Buckman, C. P., No. 3, December Term, 1911, No. 41, wherein judgment was entered for want of an appearance for the amount of the debt, $536.02, and interest, $144.84.</p> <p>3. Assignment by William A. Buckman and George Buckman, dated September 14, 1911, notice of which was served upon the garnishee on October 17, 1911, whereby they assigned to Joseph Boyer the sum of $600, being the $300 which each claimed under the exemption law of the state of Pennsylvania, and the balance of their distributive interest in the estate of Isaiah V, Williamson was assigned to the Mechanics’ National Bank of Trenton to the amount of $6,000. This assignment further recited that at the expiration of five months after its execution and the acceptance thereof by the Pennsylvania Company for Insurances on Lives and Granting Annuities the attachment of July 1, 1909, should be discontinued at the cost of the plaintiff.</p> <p>Subsequently supplemental answers were filed setting out in full the clauses of the will of Isaiah Y. Williamson bearing upon the interest of these defendants, as follows:</p> <p>“Item Second. I give and bequeath unto each one of the children of my Brother Peter Williamson and of my Brother Jesse Williamson and of my deceased brother Mahlon Williamson and of my Sister Sarah Ann Buck-man and of my sister Elizabeth Y. Moon (including the issue of children now deceased, and the issue of children who may be deceased at the time of my death) the income and interest on Sixty Thousand dollars during life and from and after his or her decease the income of said Sixty Thousand dollars to be divided amongst and paid to his or her issue equally until the age of twenty-one years; and in case any child' of either of my said brother or sisters be deceased leaving issue, such issue shall stand in place of the deceased parent and shall take (if more than one collectively) the same share which his, her or their parent would have taken if living, and no more. And when any such issue (who shall be the grand child of my Brother or Sister) shall attain the age of twenty-one years (and after the decease of his or her parent) he or she shall be paid an equal share of the principal fund of Sixty thousand dollars, the income of which has been disposed of as above, and the remainder of said Sixty thousand dollars shall be kept invested and the income thereof shall be equally divided amongst the remaining infant issue (grand children as aforesaid) until the next child attains the age of twenty-one, at which time he or she shall be paid an equal share of said Sixty thousand dollars,- and the residue thereof shall be kept invested and the income equally divided amongst the remaining infant issue as aforesaid; and in like manner as each grand child attains the age of twenty-one shall he or she receive his or her portion of the principal, and the income shall be divided ‘as aforesaid, until the youngest grand child attains the age of twenty-one, and the entire fund shall be distributed amongst the grand children as each attains the age of twenty-one. And should any grand child of my brother or sister die before the age of twenty-one, his or her share shall go to his or her heirs. And should any child of my brother or sister die without having any issue living at the time of his or her death, then the amount of principal of which such child has received the income, namely, Sixty thousand dollars, shall be added to the general fund in this item named and vest in and be divided amongst the grand children of my other brothers and sisters in this item named then living per capita and not per stirpes and be paid to them as they respectively attain the age of twenty-one years. Provided, however, if at the time the issue of any brother or sister may become extinct as aforesaid, such brother or sister of mine should then be living, I direct that he or she shall receive the income on such sixty thousand dollars during his or her life, and on his or her decease the fund of sixty thousand dollars shall be disposed of as above mentioned.”</p> <p>“Item Fourteenth. The rest, residue and remainder of my estate, real, personal and mixed, wherever situated, vested, contingent or future, after satisfying the foregoing bequests, as such remainder shall be realized and converted into proper securities by my executors, as provided in Item Seventeenth of this will, shall be by them transferred and delivered to the Pennsylvania Company for Insurances on Lives and Granting Annuities, of this city, which company shall hold the same as a trustee and in special trust as follows: That is, to keep the same invested in productive securities in manner provided in Items Sixteenth and Seventeenth and after deducting the proper charges and expenses incident to the management of said investments and securities to add the interest and income thereof to the capital, and thus accumulate and increase this fund until the expiration of ten years after my decease, at which time it shall be divided amongst such of my grand nephews and grand nieces who shall then be living, as are the issue of my brothers and sisters named in the second item of this will, which fund shall then be distributed to each one per capita and not per stirpes an equal share thereof; provided, however, such shares shall not be paid until each person thus ascertained shall attain the age of twenty-one years, excepting however from this proviso the shares of all who would not attain the age of twenty-one years after my decease — and I direct that this fund shall all be paid to the persons who shall become entitled as aforesaid at' the end of ten years from my decease, within the period of twenty-one years therefrom; and all income accruing after said ten years shall be accumulated on each share and paid with the principal. Thus said entire fund and accumulated income must be paid over within twenty-one years after my decease.”</p> <p>It further appeared from the record that the defendants, William A. Buckman and George Buckman, are the grandchildren of Sarah A. Buckman, sister of the testator named in Item Second of his will above, and that Edward C. Williamson, a nephew of testator upon whose death under the provisions of the will the said William A. and George Buekman became entitled to the possession of the fund admitted by the garnishee to be in its hands, was the nephew of Isaiah V. Williamson, the testator, and that the said Edward C. Williamson died October 11, 1911, unmarried, and with no issue surviving him.</p> <p>Upon the filing of the answers as above the Mechanics’ National Bank of Trenton took a rule to show cause why judgment should not be entered against said defendants for the amounts admitted to be due each of them under the adjudication of the orphans’ court, to wit: Principal, $1,314.92, find income $68.79.</p> <p>The questions that arise under this rule are:</p> <p>1. Was the interest of each of these defendants vested prior to the death of Edward C. Williamson?</p> <p>2. If these interests were not vested, were they attachable at the time this plaintiff issued the foreign attachment in this suit?</p> <p>3. If the interest of these defendants was contingent at the time the foreign attachment was served, and there had been no proceedings under said attachment until after the said interest did vest, will the original attachment of the bank hold as against the subsequent attachments of Watson and Reeves, above noted, which were served after the interests of these defendants became vested?</p> <p>4. What effect, if any, has the assignment of George Buekman to John C. Loud, notice of which was given to the garnishee on July 23, 1909?</p> <p>5. What effect, if any, has the assignment of William A. and George Buekman to the Mechanics’ National Bank of Trenton, which was executed September 14, 1911, prior to the death of Edward C. Williamson, notice of which was not given to the garnishee until after that period and after the issuing of the attachments by Watson and Reeves as above?</p> <p>On the first question, namely, whether or not the interests of these defendants were vested prior to the death of Edward C. Williamson, we are of opinion that under the decisions the interests of these defendants did not vest at the death of the testator, for the reason that these remainders depend upon the double contingency of the death of Edward C. Williamson without leaving issue then surviving him and the survival of these defendants at that time and these contingencies relate to the gift itself and not to the time of payment.</p> <p>The argument of counsel for plaintiff, wherein he draws certain conclusions from what he conceives to be the intent of the testator to make an outright gift and merely postpone the right to possession, is very ingenious but not convincing. In view of the express direction in the will that upon the death of a child of a brother or sister, this fund shall then “vest” in the grandchildren, etc., and the construction put upon somewhat similar language by the Supreme Court, we are convinced that the interests of these defendants did not vest until October II, 1911, the date of the death of Edward C. Williamson.</p> <p>It has been argued that, if the interests of these defendants are contingent, it follows from the cases of Patterson v. Caldwell, 124 Pa. 455, and Day v. New England Life Ins. Co., Ill Pa. 507, that they cannot be attached under this foreign attachment proceeding. But all that was decided in those cases was that when answers were filed showing that the interest attached was purely contingent the court would not allow a judgment to be entered against the garnishee; and this brings us to a discussion of the third question.</p> <p>As the interests of these defendants had undoubtedly vested upon the death of Edward C. Williamson and at the time the interrogatories were filed in this suit, it would seem that immediately on the vesting of the same and while the plaintiff’s attachment was still outstanding as a valid process, the said fund became, in the hands of the garnishee, subject to the original attachment, for it is well settled that a foreign attachment binds all funds that may come into the hands of the garnishee after the service of the writ and before judgment is entered or before the attachment is dissolved. See Silverwood v. Bellas, 8 Watts, 420, where a foreign attachment bound a fund which came into the hands of the garnishee, a bank, more than three years after the original attachment had been issued. This attachment, therefore, takes precedence over the two later attachments served after the death of Edward C. Williamson.</p> <p>This conclusion renders unnecessary any further discussion of the fifth question above,' namely, the effect of the assignment of William A. Buckman and George Buckman dated September 14, 1911. Moreover, it would appear that said assignment had been treated by the parties as nonexistent, for one of its conditions was that within four months after its date the attachment that is now before us should be discontinued.</p> <p>What effect has the assignment by George Buckman to John C. Loud, notice of the same having been given to the garnishee prior to the service of the attachment in this suit?</p> <p>This assignment being an equitable one, passed both the present and contingent interests of said George Buckman, and for that reason judgment cannot be entered under this rule against said George Buckman without notice to the assignee and on opportunity given him to show the bona tides of this assignment.</p> <p>The rule for judgment, therefore, as to George Buck-man is discharged, and the rule for judgment against William A. Buckman is made absolute, and it is adjudged that the garnishee has in its hands the sum of $1,383.71 due the defendant, less garnishee’s counsel fee of $25.00.</p> <p>Error assigned was the judgment of the court.</p>

<p>Contract — Sale—Offer—Acceptance—Rescission—Damages.</p> <p>1. Where offers are made to sell two lots of grass seed, and the offers are accepted, and it appears that the minds of the parties met in the correspondence in regard to the subject-matter of the contract, the price, time and place of delivery and payment, and that the purchaser rescinded the contract on the mere ground that he had made a mistake, such repudiation of the contract gives to the seller the right to sell the seed in the open market within the time he would have been ready to ship it under the orders.</p> <p>2. Grass seed is bought and sold and kept in stock like other merchandise at known seasons of the year, and there is no reason for taking it out of the general rule recognized in this state, that for a breach of contract for the sale of personal chattels, yet to be manufactured, the vendor is entitled to recover the difference between the selling price and the market value at the time and place of the delivery of the chattel.</p>

<p>Decedents’ estates — Orphans’ court sale — Sale for payment of' debts— Confirmation — Delivery of deed — Vacation of confirmation — Notice to creditor.</p> <p>1. Where an orphans’ court sale for the payment of a decedent’s debts has been ordered, made and confirmed within two years from the death of the decedent, the fact that the two years’ limitation period expired three days after the decree of confirmation, and before the full consummation of the sale by payment of purchase money and delivery of deed, furnishes no ground for vacating such decree.</p> <p>2. In such a case a creditor of the decedent has such an interest in the decree of confirmation as entitles him to notice of, and an opportunity to be heard on, the administrator’s application to vacate the decree.</p>

<p>Appeal, No. 107, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 5, March Term, 1911, No. 1,856, on verdict for defendant in case of Philadelphia & Reading Railway Company v. George M. Baer and C. G. Heyd, trading as George M. Baer & Company.</p> <p>Appeal from judgment of magistrate. Before Martin, P. J.</p> <p>At the trial the court in its charge stated the facts to be as follows:</p> <p>The Dawson Creamery Company shipped from Minnesota to George M. Baer & Co., the defendants, fourteen tubs of butter. The freight rate was $13.81. It was transported over the Reading Railroad, and when delivered to George M. Baer & Co., the railroad company charged $7.64 freight, instead of $13.81. That charge was the result of a mistake on the part of an employee of the railroad company. Baer & Co. were commission men. They did not own the butter, but received it on consignment for the purpose of selling it for the Dawson Creamery Company. They sold the butter, deducted the charges and commissions including. the sum of $7.64 paid for freight and settled with the consignor. After the defendants had paid the net proceeds of the sale to the Dawson Creamery Company, a bill was sent by the plaintiff to the defendants for $6.17, the balance of freight. They declined to pay it, and this suit was instituted.</p> <p>The court directed a verdict for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in directing a judgment for defendant. ,</p>

Appeal, No. 186, Oct. T., 1913, by defendant, from judgment of Q. S. Schuylkill Co., Jan. T., 1913, No. 177, aflBrming judgment of Justice of the Peace in case of Commonwealth v. Hiram Zimmerman et al. Appeal from judgment of justice of the peace.

<p>Appeal, No. 232, Oct. T., 1913, by William T. Schwemmer and William Niermann, from order of Q. S. Phila. Co., March T., 1913, No. 1,826, refusing a liquor license.</p> <p>Petition for retail liquor license.</p> <p>Error assigned was order refusing a license.</p>

Appeal, No. 167, Oct. T., 1913, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1912, No. 4,952, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Herman Speier v. Locust Laundry. Assumpsit for wages. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior Court. The court made absolute rule for iudgment for want of a sufficient affidavit of defense.

Appeal, No. 194, Oct. T., 1913, by Anna Palen, Executrix of Elizabeth Palen, deceased, from order of C. P. No. 5, Phila. Co., Dec. T., 1912, No. 444, discharging rule for judgment for want of a sufficient affidavit of defense in case of Anna Palen, Executrix of Elizabeth Palen, deceased, v. International Lumber & Development Company. Assumpsit for installments on stock subscription. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 199, Oct. T., 1913, by plaintiff, from decree of C. P. No. 6, Phila. Co., Dec. T., 1912, No. 42, refusing divorce in case of Frederick C. Buys v. Harriett A. Buys. Libel for divorce. The facts are stated in the opinion of the Superior Court. Error assigned was the decree of the court.

Appeal, No. 213, Oct. T., 1913, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 3,517, M. L. D. on verdict for plaintiff in case of Philadelphia v. Henry Dale, Owner. Scire facias sur municipal lien for a sewer assessment. At the trial E. 0. Michener, Esq., made the following statement to the court: Henry Dale is dead. I have a suggestion of the death of the defendant, supported by an affidavit, which I desire to file of record.

<p>Appeal, No. 173, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1909, No. 3,377, for defendant on case stated in suit of Samuel S. Fowler et. al., trading as Fowler Net Twine Company, v. Seaboard Airline Railway Company.</p> <p>Case stated to determine liability for goods sold at public auction.</p> <p>The facts are stated in the opinion of the Superior Court. .</p> <p>Error assigned was in entering judgment for defendant ' on case stated.</p>

<p>Appeal, No. 241, Oct. T., 1913, by defendant, from order of Q. S. Phila. Co., for support in case of City of Philadelphia v. George A.' Hays.</p> <p>Citation for order for support.</p> <p>The affidavit for the citation was as follows: '</p> <p>“ Personally appeared before me, a notary public of the Commonwealth of Pennsylvania, residing in the City and County of Philadelphia, Iola Pierre Gudenlcauf residing at 3936 Girard Avenue in the city and county aforesaid, who, being duly sworn according to law, deposes and says that she is the divorced wife of Frank G. Hays (who is out of the jurisdiction and cannot be located) and the mother of his minor child, Evelyn, age 5 years, who is poor and unable to work.</p> <p>“Deponent further says that the said Evelyn Hays has a grandfather named George A. Hays, residing at 3922 Girard Avenue in the city and county of Philadelphia, who has means and is able to maintain the said Evelyn. Hays, but will not.</p> <p>“Iola P. Gxjdenkaue,</p> <p>“3936 Girard Avenue.”</p> <p>The court made the following order:</p> <p>And now, November 5, 1913, the court having heard the parties in the within case, their proofs and allegations, order and decree that the said defendant, George A. Hays, 3922 Girard avenue, pay to Iloa Gudenlcolf, 3936 Girard avenue, the sum of $2.00 per week for the support of his grandchild, Evelyn Hays, from November 5, 1913, and give security by his own bond to the commonwealth in the sum of $500 for the faithful performance of this order, pay the costs and stand committed till the order is complied with.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 154, Oct. T., 1913, by plaintiff, from judgment of C. P, No. 1, Phila, Co., June T., 1912, No. 1,106, on certificate for defendant in case of Edward F. Condron v. John D. Kennedy and Charles D. Kennedy, trading as Kennedy & Brothers.</p> <p>Assumpsit for rent. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Brégy, P. J., charged as follows:</p> <p>[I will relieve you from trouble in this case. There seems to be no difficulty about the facts. Everybody who testified here has stated that they are true, that is, that during the year 1911, the Kennedys occupied the store and paid $150 rental per month to Mr. Condran, as a matter of fact, that being the exact sum they had paid under the five years’ lease, that had expired, and it appeared that in 1912 they kept on sending $150 a month to Mr. Condran, except for the months of May and June, which are the ones concerning which this suit is now brought here. It is also true in September Mr. Condran notified the Kennedys that if they stayed after the first of January he would expect or require them to pay $200 a month. That notice in that way I charge you was ineffectual and had no force.] [3] The reasons for that, it is not necessary for me to go into now. [I charge you that the Kennedys had a right as long as they occupied the premises or were obliged to pay $150 a month for the balance of the year.] [4] It also appears that the Kennedys had paid $1,000 mortgage interest — which was $2,000, and that that $1,000 ought to have been paid by Mr. Condran. That is, they paid the additional $1,000 for Mr. Condran.; but they owed him $300. In other words, Mr. Condran owed them $700 with interest and your verdict should be for the defendant for $700 with interest. You will render a verdict for the defendant for $700 with interest.</p> <p>I will give an exception to my whole charge and an exception to the declination of the points presented. I charge you to render that verdict without giving the reasons for it. [I charge you that as a matter of law the defendants are entitled to a verdict for $700 with interest.] [5] To all I have said an exception can be taken to my whole charge; as also to my refusal of the points.</p> <p>Certificate and judgment for defendants for $747.50. Plaintiff appealed.</p> <p>Errors assigned among others were (3, 4, 5) above instructions quoting them.</p>

<p>Appeals, Nos. 42 and 43, Oct.</p> <p>Term, 1913, by defendant, from judgment of G. P. No. 1, Phila. Co., June T., 1909, No. 4,903, on verdict for plaintiffs in case of Catherine Fitzsimmons and Edward Fitzsimmons, her husband, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Brégy, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for Catherine Fitzsimmons for $750, and for Edward Fitzsimmons for $175. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Attorney at law — Suit for services — Quantum meruit — Impossibility of performance of contract.</p> <p>Where a client has employed an attorney at law under an agreement by which the latter should have fifty per cent of any amount claimed as credit by an accountant which should be disallowed by the orphans’ court, and the client renders the performance of the contract impossible by withdrawing at the audit all objections to the account, the attorney may recover on a quantum meruit a proper amount for the services which he has rendered.</p>

<p>Wills — Probate—Testamentary capacity — Undue influence — Befiisal of issue.</p> <p>An issue devisavit vel non is properly refused where it appears that the will was made fourteen years before decedent’s death, that for three years prior to his death the decedent lived away from the sole bteneficiary under his will; that the attorney who drew the will and the two subscribing witnesses all testify to the sound mental capacity of testator, and to the fact that the beneficiary had nothing to do with the instructions as to the making of the will or its execution, and the only testimony as to the testator’s condition was that he had been from early childhood a secretive, sensitive and self-willed person who avoided conversation even with friends.</p>

<p>Appeals — Assignments of error — Judgment n. o. v.</p> <p>1. An assignment of error to an order entering judgment for defendant n. o. v. is in proper form, which complains of the action of the court in entering the judgment, quotes from the record the defendant’s motion for judgment with the reasons therefor, the opinion of the court below, and finally the order directing the entry of the judgment.</p> <p>Deeds — Boundaries—Street.</p> <p>2. Where a deed calls for a “fifty foot street” as a boundary, there is an implied covenant on the part of the grantor that there is a way corresponding with the one described in the deed and that the grantee shall have the benefit of it; but the grantor may subsequently by deed convey the fifty foot strip to another person without breach of the covenant inasmuch as he may convey a fee in the land subject to the first grantee’s easement of a right of way. If, in such a case the first grantee permits the second grantee to construct a fence across the right of way, the first grantee cannot maintain an action against the grantor for a breach of the implied covenant, created by the first deed.</p>

<p>Appeal, No. 188, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 4, Phila. Co.-, Dec. T., 1910, No. 992, for defendant on case stated in suit of Keystone Telephone Company of Philadelphia v. Philadelphia & Reading Railway Company.</p> <p>Case stated to determine liability for cost of relocating conduits.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 127, Oct. T., 1913, by plaintiff, from order of C. P. Lehigh Co., Jan. T., 1913, No. 61, on order, etc., in suit of Jacob Dieter, Executor of Estate of Sarah Houser, deceased, v. The Citizens’ National Bank.</p> <p>Assumpsit on a cashier’s check. Before Trexler, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in making absolute the rule to interplead.</p> <p>2. The court erred in refusing to enter judgment in favor of the plaintiff and against the defendant for want of an affidavit of defense.</p> <p>3. The court erred in not entering judgment under the pleadings and the act of assembly in favor of the plaintiff and against the defendant for the amount claimed in the plaintiff’s statement of cause of action.</p>

<p>Appeal, No. 237, Oct. T., 1913, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1912, No. 28, for defendant n. o. v. in case of Lizzie Semancik v. Continental Casualty Company.</p> <p>Assumpsit on a policy of accident insurance. Before Stewart, J.</p> <p>From the record it appeared that John Semancik, during his lifetime entered into a contract of accident insurance with the defendant company. The policy issued to him by the company contained the following clauses:</p> <p>“Part I. Insuring Clause for Accident.</p> <p>“If the Insured, while this policy is in force shall receive personal bodily injury (suicide sane or insane not included) which is effected directly and independently of all other causes through external, violent and purely accidental means, and which causes at once and continuously after the accident total inability to engage in any and every labor or occupation, the Company will pay indemnity for loss of life, limb, limbs, sight or time resulting therefrom.</p> <p>“Part YI. Special Accident Indemnities,</p> <p>“A. If sunstroke, freezing or hydrophobia, due in either case to external, violent and accidental means, shall result, independently of all other causes, in the death of the Insured within ninety days from date of exposure or infection, the Company will pay said principal sum as indemnity for loss of life.”</p> <p>The deceased was a section hand employed at the time of his death by a railroad company. He was at work on July 3, 4, 5, 1911, all of which were unusually hot days. On the afternoon of July 5 he complained of being sick, and was advised by his fellow workmen to lie down. He went a short distance away from the place where he was working, and lay down in the shade of some railroad ties. A short time afterwards his fellow workmen went to his side and found that he was dead. A doctor certified that the cause of the death was sunstroke. Two witnesses testified that the deceased was at the time he was working with them in apparently good health. The court gave binding instructions for plaintiff. Verdict for plaintiff for $1,115. 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. 7, Oct. T., 1913, by defendants, from judgment of C. P. No. 4, Phila. Co., June T., 1909, No. 3,214, on verdict for plaintiff in case of Ernest Hamilton v. William Nelson Edwards and Godfrey D. Smith, trading as the Racquet Club Garage.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $500. Defendants appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 218, Oct. T., 1913, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1913, No. 3,876, discharging rule to open judgment in case of Henry C. Paist v. Eliza S. Spittall.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 157, Oct. T., 1913, by defendant, from order of Q. S. Phila. Co., June Sessions, 1913, No. 900, for support in case of Philadelphia v. Louis Dezsi.</p> <p>Return of proceedings for nonsupport.</p> <p>The record showed the following return of proceedings before Magistrate John McCleary:</p> <p>Magistrate of Court No. 9 in Philadelphia.</p> <p>Commonwealth of Pennsylvania, vs. Dr. Louis Dezsi, 410 W. Girard Ave.</p> <p>Warrant issued on the 6th day of June, 1913, on oath of Mary Dezsi subscribed by said affiant Defendant charged with desertion and non-support.</p> <p>Now 6-9-13 Deft, brought. Plff. sworn and examined.</p> <p>“After hearing defendant held in own recognizance, required to give bail in the sum of $600 for his appearance at the next term of the Court of Oyer and Terminer and General Jail Delivery and Quarter Sessions of the Peace for the County of Philadelphia.</p> <p>“Defendant bound jointly and severally in the sum of $ for appearance of the defendant at</p> <p>the term of Court of Oyer and Terminer and General Jail Delivery of the Peace for the County of Philadelphia and to abide the order of the said Court.</p> <p>“Defendant’s name, Dr. Louis Dezsi; place of abode, 410 W. Girard ave.; place of business-; witness’ name, Mary Dezsi; place of abode, 952 N. Randolph st.; place of business -; name of bail, Dr. Louis Dezsi; place of abode, 410 W. Girard ave.; place of business-; own recognizance.</p> <p>“The said (bail)‘not being a housekeeper and residing with by occupation his place of abode being I hereby certify that the above is a correct return and transcript from the docket of my said Court.</p> <p>“Witness my said Magistrate and affixed seal of said Court the 28th day of June, a. d. 19 .</p> <p>“John McCleary,</p> <p>“[seal] Magistrate Court No. 9.”</p> <p>Statement of Facts — Arguments. [56 Pa. Superior Ct.</p> <p>The order appealed from was as follows:</p> <p>City of Philadelphia, vsLouis Dezsi.</p> <p>Court of Quarter Sessions. No. of Case 900. June T. 1913. ' Desertion.</p> <p>“Before the Honorable Judge D. Webster Dougherty.</p> <p>“And now, July 1, 1913, the court having heard the parties therein, proof and allegation, order and decree that the said defendant, Louis Dezsi, 410 W. Girard Ave., pay the sum of seven 00-100 dollars per week for the support of his wife, Mary Dezsi, 952 N. Randolph St., from July 1, 1913, and give security in the sum of $500 00-100 for the faithful performance of this order, pay the costs and stand committed until the order is complied with.</p> <p>“Wm. J. Cruley, Clerk.”</p> <p>Error assigned was the order for support.</p>

<p>Divorce — Desertion—Evidence—Insanity.</p> <p>Where a husband packs up his clothes and deliberately leaves the house where he and his wife resided in Pennsylvania, and goes to another state without giving any reason for his departure, and without establishing or offering to establish a home for his wife in his new domicile and without contributing to her support, and seven days after the expiration of two years from the day he left Pennsylvania he is adjudged a lunatic and committed to an insane asylum, his wife will be entitled to a divorce for willful and malicious desertion persisted in for two years.</p>

<p>Equity — Equity practice — Cross bill.</p> <p>1. The defendant in an equity suit cannot have affirmative relief against the plaintiff even in the subject-matter of the suit, except by cross bill.</p> <p>Equity — Equity practice — Findings of fact by a trial judge.</p> <p>2. The findings of fact by a judge in an equity proceeding will not be set aside, except for manifest error.</p> <p>Equity — Jurisdiction—Remedy at law — Ejectment—Possession and title to land — Findings of fact — Party fence.</p> <p>3. Where a bill in equity is filed to restrain the defendant named therein from interfering with the plaintiff in erecting a fence and the plaintiff obtains a preliminary injunction, and the court finds as a fact that the land in dispute was in the possession of the defendant when the injunction issued, the bill will be dismissed on the ground that the plaintiff has an adequate remedy at law by ejectment.</p>

Appeals, Nos. 78, 79 and 80, by defendants, from judgment of Q. S. Phila. Co., Jan. Sessions, 1912, No. 735, on verdict of guilty in case of Commonwealth v. Henry Clay, John R. Wiggins and Willard H. Walls. Indictment for conspiracy. Before Staples, P. J., specially presiding. At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.

<p>Appeal, No. 185, Oct. T., 1913, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. Term, 1912, No. 394, discharging rule for judgment for want of a sufficient affidavit of defense in case of Norfolk & Western Railway Company v. Swift & Company.</p> <p>Assumpsit for demurrage.</p> <p>From the record it appeared that on November 26, 1902, the Norfolk & Western Railway Company entered into a contract in writing with Swift and Co. which recited that the railroad company had constructed, or was about to construct a side or spur track to the plant of Swift & Company at Elkhorn, West Virginia, a distance of about 250 feet in length.</p> <p>The material portions of the contract were' as follows:</p> <p>3. The title in and to and the ownership of the rails, ties, fastenings and all other material of every kind and description used in the construction of the said track are and shall remain in the railway company, and the railway company, its agents, servants and employees, shall have the right at any time peaceably to enter upon the premises of said party of the second part for the purpose of taking up and removing said track, whenever it may determine, under the terms of this agreement, to remove the same.</p> <p>4. The party of the second part shall promptly load and unload at its own cost, any and all cars which may be moved to and from its plant or other point designated by it on the said track, consigned to or by it; and the said cars shall be subject to car service rules, except such cars as belong to the Swift Refrigerator Line standing on tracks set aside for that purpose. All' cars placed upon the said track, on the property of the party of the second part, shall be returned to the railway company in the same condition as when delivered, unless injured without fault ón the part of the said party of the second part, its agents or employees, and in the event of the destruction of any of said cars while on the property of said party of the second part due to the negligence or fault of said party of the second part, its agents or employees, the said party of the second part will make good to the railway company all loss occasioned by such destruction, but the said party of the second part is not to be responsible for loss or damage to said cars occasioned by the negligence of the railway company, its agents or employees. . . .</p> <p>6. The party of the second part shall, before said side or spur track is constructed by the railway company, pay to it the cost of such construction, including all materials, switches, frogs and all appliances reasonably necessary to its operation and maintenance, and also cost of labor, as per the estimate of the chief engineer of the railway company; provided, that when said side or spur track has been constructed, it is found that such estimate is in excess of the actual cost of the construction thereof, such excess shall be refunded to the party of the second part; or, if below the actual cost, such deficiency shall be paid by the party of the second part.</p> <p>7. The railway company may use such side or spur track in connection with any extension of the same which it may construct for the purpose of reaching business and industries other than the business and industries of the party of the second part, and that it may handle and transport the business of others, either upon or along said side or spur track, and any extension thereof; and it is distinctly understood and agreed that the said railway company shall not be deemed to have waived or restricted by anything herein contained, its exclusive power and right to control and operate the said side- or spur track, to extend the same from time to time at its option, or otherwise to exercise its ownership or franchises in and about the same, in all respects as if the said right of way had been acquired and the said side or spur track had been acquired or constructed at the original and sole expense of the railway company.</p> <p>The plaintiff in its statement, claimed to recover demurrage charges accruing between July, 1910, and July, 1912, aggregating $795, in accordance with the demur-rage tariff which provided that “private cars under lading are in railroad service until the lading is removed and the cars are regularly released.” The demurrage claimed was on the defendant’s private cars.</p> <p>The affidavit of defense averred that the siding was used exclusively for access to defendant’s plant, and that only defendant’s own cars had been placed upon the track.</p> <p>A supplemental affidavit of defense recited sec. 4 of the contract of November 26, 1902, and averred that the siding was set aside by the railroad for the purpose of receiving and standing thereon cars of the Swift Refrigerator Line.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 118, Oct. T., 1913, by defendant, from order of Q. S. Northampton Co., Sept. T., 1912, No. 2, on report of viewers on petition to vacate the Plainfield and Washington Township Road.</p> <p>Petition to vacate a road.</p> <p>The following exception, inter alia, was filed to the viewers’ report.</p> <p>5. The viewers having found in the fourth, fifth and sixth findings that the said road, if wholly opened as laid out, would not be useless or inconvenient and would not be burdensome to the township of Plainfield, the viewers should not have reported in favor of vacating that part of the said road lying wholly within Plain-field township, whatever justification there might be in vacating that part of the road as now laid out lying within Washington township. The viewers have found as a fact (see tenth finding) that “the general location of this road (meaning the whole road) is such that it would be a convenient road from Ackermanville through Delabole and directly extending to Pen Argyl; and provide a shorter road and one of much easier grade than the nearest roads now connecting these points.” They have also found (see eighth and ninth findings) that if the portion of the road in Washington township as now laid out were slightly changed, “the road, thus changed, would not be burdensome to Washington township.” Under these facts as found by them, the viewers should not have reported in favor of vacating that part of the road lying in Plainfield township comprising about four-fifths of its entire length, but should have permitted it to stand, thereby affording an opportunity to the petitioners, by proper subsequent proceedings, to have the portion of the road as now laid out in Washington township relocated in accordance with the recommendation of the viewers.</p> <p>On this exception Stewart, J., ruled as follows:</p> <p>[No legal reason has been presented to us to disturb that part of the whole road which is in Plainfield Township and it is our duty to sustain this fifth exception.] [1]</p> <p>The court entered the following order:</p> <p>[And now, April 14, 1913, the report of the viewers vacating the road fully described in No. 9, September Sessions, 1912, is confirmed absolutely so far as said road is within the township of Washington, and is not approved so far as the said road is in the township of Plainfield.] [2]</p> <p>Errors assigned were (1, 2) above' rulings, quoting them.</p>

<p>Appeal, No. 300, Oct. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1912, No. 3,999, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Jacob. B. Cooper and L. S. Lucas, Co-partners, trading as Cooper & Lucas, v. Midland Metal Company.</p> <p>' Assumpsit for commissions.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are 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>

Appeal, No. 53, Oct. T., 1913, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1912, No. 1,373, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Sarah Y. Whelen v. John L. Laird. Assumpsit for rent. Rule for judgment for want of a sufficient affidavit of defense. The facts are stated in the opinion of the Superior court.

<p>Appeal, No. 84, Oct. T., 1913, by John Siveter, from order of Q. S. Phila. Co., Feb. Sessions, 1913, No. 3, refusing to open judgment in case of Commonwealth v. Harry Lancaster and John Siveter.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order refusing to open judgment.</p>

<p>Municipal liens — Abatement of nuisance — Notice—Averment of notice — Character of work.</p> <p>1. When a municipal claim is filed to secure a lien upon a property for the cost of abating a nuisance, it must, in order to be self-sustaining, aver a previous notice on the owner to do the work, and in the city of Philadelphia the claim must aver notice to the registered owner, if there be one.</p> <p>2. When the notice is served upon one who is in fact the agent of the owner in the management of the property that is a sufficient compliance with the statutory provision.</p> <p>3. An averment of notice in the claim is sufficient where it is stated that the notice was “served on the said G. the registered owner on July 24, 1907, by serving notice upon the premises, and also upon W, agent, Northwest Corner Franklin & Green Streets, and making known contents thereof to remove and abate said nuisance.”</p> <p>4. A municipal claim for the cost of abating a nuisance which states that the “nuisance consisted of surface drainage,” and that it was abated “ by diverting all drainage to sewer as per contract fifty dollars,” sufficiently avers the kind and character of the work done. The Act of June 4, 1601, sec. 11, par. 7, P. L. 431, made no substantial change as to the nature of the statement of the character of the work done.</p>

<p>Vendor and vendee — Mortgage—Bond—“Straw bond” — Liability of straw man.</p> <p>1. The words “five thousand dollars to be secured by a second mortgage (straw bond) for the term of one year, interest at 6%” do not mean that neither the maker-of the bond, nor any other person no matter what the terms of the instrument thereafter to be made might be, was to be legally hable to be called on to pay anything upon the bond. The words rather mean that the vendee shall not be required to assume a direct liability to the vendor for the payment of the amount of the bond, nor be required to. furnish a bond made by a party who is financially satisfactory to the vendee.</p> <p>2. In such a case if the mortgage is foreclosed, and there is a deficiency, and the straw man having become of financial ability, has been compelled to pay the deficiency to the vendor, the straw man may recover from the vendee the amount paid.</p>

<p>Appeal, No. 141, Oct. T., 1913, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1909, No. 1,452, on verdict for plaintiff in case of Sarah Wessel v. Benjamin Menkle, Otto Menkle and Adolph Reinheimer, trading as Menkle Brothers.</p> <p>Assumpsit on a promissory note. Before Sulzberger, P. J.</p> <p>The obligation in suit was as follows:</p> <p>“January 7, 1908.</p> <p>“Received this day from Mrs. Sarah Wessel the sum of Four Hundred Dollars ($400) repayable at New York City (201 W. 117th St.) on demand.</p> <p>“With 6% Int.</p> <p>“Menkle Bros.”</p> <p>The plaintiff testified that she had previously given her check in the following form:</p> <p>“No. 109. New York, January 6th, 1908.</p> <p>“The Colonial Bank,</p> <p>“116th Street and 7th Avenue.</p> <p>“Pay to the order of Adolph Reinheimer $400 00/100 Four Hundred & No/100 Dollars.</p> <p>“Payable through New York Clearing House Safe Deposit Vaults.</p> <p>“Sarah Wessel.</p> <p>“ (Endorsed): Adolph Reinheimer, Menkle Bros.”</p> <p>Adolph Reinheimer, brother of the plaintiff and uncle of Benjamin and Otto Menkle, testified that he deposited the check in the bank account of Menkle Brothers, and that he had entire charge of the financial affairs of the firm.</p> <p>On cross-examination he was asked this question:</p> <p>“Q. Is it not a fact that you borrowed this money, if you borrowed it at all, on your own personal account, for the purpose of making good a shortage that then existed in your account with Messrs. Menkle Brothers? ”</p> <p>Objected to by plaintiff.</p> <p>The Court: If you amend that question I think I can sustain it. What did you tell your sister when you borrowed the money?</p> <p>Mr. Weaver: I maintain that it makes no difference what he told his sister. '</p> <p>The Court: Then I will sustain the objection.</p> <p>Exception for defendants. [3]</p> <p>The court charged as follows:</p> <p>The evidence is uncontradicted that the plaintiff gave $400 to the defendants. These $400 were given as a loan and they have not been returned, and, in the natural course of events, when one person loans money to another it is an implied contract that the money shall be returned. This has not been done, and it ought to be done. Of course, the defendants are entirely sincere in the belief that they ought not to do it, and they have two grounds for that belief. In the first place, though the defendants and their uncle made an arrangement by which the profits were to be divided into thirds, they appear to have stipulated or in some manner agreed that this man, who had a third interest in the profits, should not be a partner. Well, it does not matter whether he was or not. He attended to the financial part of their business and he got money for it from this woman. It does not matter whether he had authority to get this money at all. What matters is that they got the money and that they did not intend to return it. As an excuse for not returning it, they say, “We didn’t know what was in our books.” Well, as a matter of law that is not true, although it may be true as a matter of fact. Even as a matter of fact I doubt it, because within a very few months afterwards they did get rid of their uncle and they did have a lawsuit, and ever since the 1st of January, 1909, with the aid of lawyers and accountants, those two people have not been able to find out whether on their books they had that $400 deposit.</p> <p>If that was an issue in the case, you might believe it. I would not. But that is immaterial. The money has been traced to them, and it has not been traced out of them. They do not say now they did not use it in .their business for buying clothing.</p> <p>Under all -the circumstances I direct you to find a verdict for the plaintiff for the amount of the claim.</p> <p>Verdict and judgment for plaintiff for $529.72. Defendant appealed.</p> <p>Errors assigned among others were (3) rulings on evidence, quoting the bill of exceptions, and (5) charge of the court, quoting it.</p>

<p>Negligence — Railways—Permissive crossing — Infant—Evidence—Case for jury.</p> <p>1. The question ofi whether there was a permissive crossing over a railroad at a particular point is for the jury where the evidence tends to prove that at the point in question there was an established path crossing the track leading up to an embankment through an opening in a high board fence to a public street; that no attempt had been made for a period of years to close the opening; that the lower and middle stringers of the fence had been removed and the upper stringers showed no nail marks indicating that boards had ever been attached to them; that in repairing other parts of the fence this opening had not been touched; and that a number of residents in the neighborhood as well as several hundred mill employees habitually used the crossing.</p> <p>2. In such a ease it is immaterial that the trial judge may have referred to the fact that nobody had ever been arrested or interfered with for using the opening, where it does not appear that he stated that from this fact alone the jury might infer the existence of a permissive crossing.</p> <p>3. Where a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing; and whether in a given case such reasonable care has been exercised, or not, is ordinarily a question for the jury under all the evidence.</p> <p>4. In an action against a railroad company to recover damages for personal injuries to an infant of tender years, the case is for the jury where it appears that the child went over the tracks at a permissive crossing, and was struck by a light engine running pilot first which had not given any warning signals of its approach.</p> <p>Negligence — Infant—Pain and suffering.</p> <p>5. In an action against a railroad company to recover damages for personal injuries to an infant child, the pain and suffering of the child may be considered by the jury, although at the time of the trial it appeared that the child had recovered from the injuries from the accident, but had thereafter died of diphtheria.</p>

<p>Appeal, No. 206, Oct. T., 1913, by plaintiffs, from judgment of C. P. Franklin Co., Feb. T., 1913, No. 24, for defendant on case tried by the court without a jury in suit of Beverly W. Mister et ah, Receivers of the Farmers Trust, Banking & Deposit Company (a corporation under the laws of Maryland) v. Joseph A. Burkholder, Administrator c. t. a. of L. D. Burkholder, deceased.</p> <p>Assumpsit against a stockholder to enforce statutory liability.</p> <p>The case was tried by Gillan, P. J., without a jury under the Act of April 22, 1874, P. L. 109.</p> <p>From the record it appeared that the defendant was a stockholder of the Farmers Trust, Banking & Deposit Company, an insolvent Maryland corporation. Under the Maryland statute stockholders of such a corporation are liable to the creditors of the company in case of insolvency. The company was adjudicated insolvent on October 9, 1907. On March 23, 1910, an order was made directing the receiver to institute suits against the stockholders., The defendant claimed that the Maryland statute of limitations, which is three years, was applicable from October 9, 1907. The trial judge took this view and entered judgment for defendant.</p> <p>Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Beal estate broker — Principal and agent — Commissions—Case for jury.</p> <p>1. In an action by a real estate broker to recover commissions on the sale of real estate, the case is for the jury and a verdict and judgment for the plaintiff will be sustained where the testimony tends to show that plaintiff was employed by the defendant to sell certain land in a distant state; that plaintiff procured a purchaser, who entered into a binding contract of sale with defendant, but subsequently finding defendant’s title deficient withdrew from it; that the proposed purchaser was himself subsequently authorized by another person to submit an offer for the land; that he did submit this offer to the plaintiff, who directed him to report the offer to and negotiate directly with the defendant owner; and that as a result of such negotiations the defendant sold the land to the party making the offer.</p> <p>2. A real estate broker is the agent of the vendor. There must be an employment to constitute him an agent, and his service as such, however slight, must be, the efficient cause of the sale. If a mere introduction of the property to the notice of the buyer effects the sale, the broker earns his commissions. An advertisement or any other service is enough if it be the immediate and efficient cause of the bargain.</p>

<p>Insurance — Fire insurance — Mutual insurance — Ice houses — Vacant or unoccupied premises — Agent.</p> <p>Where a mutual insurance company issued a policy of fire insurance on April 1, on two ice houses which were entirely empty at the date of the policy because of a failure of the ice crop for the two preceding years, and it appears that the general agent of the company had indorsed his approval of the policy on the back of the application before it was issued, in compliance with the by-laws, and it also appears that the agent knew of the state of the property and that the insured had made no misrepresentations of concealment in order to effect the insurance, the company will be liable for a loss occasioned by the subsequent burning of the ice houses, although the policy provided that if the premises should become vacant or unoccupied “and so remain more than ten days without notice or consent of this company in writing, then this policy shall be void.”</p>

<p>Appeal, No. 58, Oct. T., 1913, by defendant, from order of C. P. McKean Co., Dec. T., 1912, No. 1, discharging rule to open judgment in case of Bradford Building Loan & Savings Association v. R. W. Crowell.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 190, Oct. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1913, No. 76, on verdict for plaintiff in case of Abraham H. Hoober v. The New Holland Water Company.</p> <p>Appeal from award of viewers. Before Landis, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $100. Plaintiff appealed.</p> <p>Errors assigned were- various rulings and instructions set forth in the opinion of the Superior Court.</p>

<p>Appeal, No. 67, Oct. T., 1913, by plaintiff, from decree of C. P. Venango Co., Eq. D., No. 5, April T., 1912, on bill in equity in case of Citizens’ Traction Company v. John L. Shaffer et al., Commissioners of Venango County.</p> <p>Bill in equity to fix the compensation to be paid by a street railway company for the use of a county bridge.</p> <p>Criswell, P. J., found the facts to be as follows:</p> <p>1. The plaintiff is a street railway corporation organized and existing under the general Act of May 14, 1889, P. L. 211, owning and operating lines in the transportation of passengers and light freight in the city of Oil City, city of Franklin, both cities of the third class, boroughs of West End and Rouseville and townships of Cranberry, Sugarcreek and Cornplanter in the said county of Venango.</p> <p>2. A county bridge connects Seneca street in that part of Oil City north of the Allegheny river with State street in that part thereof south of the river constituting a portion of the highways therein.</p> <p>3. By ordinance duly enacted the said city of Oil City granted the right and consented to the use and occupancy of. the said county bridge and the approaches thereto by the plaintiff with its tracks and cars in so far as it had power by law to so grant and consent.</p> <p>4. For the discharge of its corporate duties and properly, expeditiously and advantageously accommodate the public it is necessary that the plaintiff occupy and use the said bridge with its tracks, electrical equipment and cars.</p> <p>5. By writing bearing date February 27, 1912, the plaintiff entered into a contract with the county of Venango relative to the manner of installing its tracks and necessary equipment on the said bridge and approaches and the manner of the operation of its cars thereon, including certain provisions relative to subsequent maintenance and repairs wherein and whereby it is expressly provided and agreed that “this contract shall cover all matters and things relating to the manner and cost of installation of said company’s equipment,, the maintenance thereof and the use of said bridge by said company, excepting only what amount or sum, under all the circumstances, shall be paid annually by said company on account or by reason of said company’s use and occupancy of said bridge and approaches, whether as rental, share of up-keep or maintenance, or otherwise, and also such proportionate part, if any, of the original cost of said bridge, which under the circumstances should be paid by said company to said county, the said annual sum above mentioned for the use and occupancy of said bridge, and the proportionate part, if any, of the original cost of said bridge, which under the circumstances, should be paid by said company to said county, shall be determined by the court of proper jurisdiction of said county of Venango,” it being therein further agreed that the company should not operate any car or cars over or upon the bridge until such annual and other payments shall have been determined and paid or secured as therein provided, the said contract, a true copy of which is attached to the plaintiff’s bill of complaint, marked exhibit “A” and made a part thereof, being also referred to and made a part of these findings.</p> <p>6. The tracks and equipment of the plaintiff company have been laid and installed on the said bridge and its approaches substantially as provided in said contract and the company desires to enter upon the use of the bridge with its cars and transporting facilities and prays that the court shall fix the compensation to which the county is entitled. In this prayer the defendants by their answer join.</p> <p>7. The use of the bridge contemplated at present is the passage thereover of about eleven cars per hour, with an average of about eight or ten passengers each, from 6 a. m. to midnight, but this use may be increased or decreased and at times will be much increased.</p> <p>8. The foot passengers daily crossing the bridge range from 8,000 to 13,000; vehicles from about 430 to 680; automobiles from about 275 to 520.</p> <p>9. The bridge was constructed with a roadway thirty feet wide, and has a length of about 1,121 feet. A bridge the same length and at the same place, with a twenty-four foot roadway, might have been erected for about $30,000 less.</p> <p>10. The bridge which occupied the site of the new structure had been crossed by the railway company under an agreement with the county which expired with the life of the bridge.</p> <p>The new bridge was designed and constructed in contemplation of its continued use by the railway and with a view to accommodating such use and the general public travel and traffic thereon as well. Whether or not a bridge with a roadway twenty-four feet wide would have been fairly and reasonably sufficient to accommodate the public use, present and prospective, not including that of the railway, is a controverted point. There was, however, no contention that a thirty-foot roadway was not sufficient for both, and it follows that a less width of way would accommodate the general public did the railway not enter thereon, and it is concluded that a twenty-eight foot way would in such case have been sufficient. By an approximation from the data referred to this would have cost $15,000 less than the present structure, and it is concluded that upon this sum the railway company should pay interest to the county at the rate of four per cent per annum.</p> <p>11. From the conflict of evidence on the subject it is concluded that the installation and use of the railway will to some extent affect the life of the bridge and that an annual contribution should be made on this account of $300.</p> <p>12. It is likewise found that the annual expense of supervision and general maintenance attributable in part to the extraordinary use of the bridge by the plaintiff, including painting, reflooring, general caretaking and incidentals, is the sum of $2,000, and of this amount the plaintiff should equitably contribute the one-fifth, or $400.</p> <p>13. The foregoing are all exclusive and outside of the particular obligations in the line of installation, maintenance and repairs assumed by the company under the agreement of February 27, 1912.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 287, Oct. T., 1912, by defendant, from judgment of C. P. Del. Co., March T., 1909, No. 67, on verdict for plaintiff in case of Harry M. Davis, Assignee of J. V. Slaughter, v. Eliza C. Hartel.</p> <p>Assumpsit for refusal to admit plaintiff to possession of demised premises.</p> <p>At the trial the jury returned a verdict for plaintiff for $829.50.</p> <p>Subsequently on a rule for judgment n. o. v. Broom-all, J., filed the following opinion:</p> <p>On September 17, 1908, the defendant executed the following writing: “Agreement made this day whereby Mrs. Eliza Hartel rents to J. V. Slaughter the housekeeping flat in house, Lansdowne and Baltimore Avenue, consisting of dining room, kitchen, bedroom on North side of house, and sitting room on South side, all furnished, including heat and light, and gas for cooking, for a period of sixteen months, beginning Oct. 1, 1908, ending Feb. 1, 1910, for a sum of one thousand dollars. Receipt of same is herein acknowledged. At expiration of this lease, unless thirty days’ notice is given, it will continue for a further period of a month at a rental of fifty dollars a month and so on from month to month, unless either the lessee or lessor give thirty days’ notice.</p> <p>“As a part of this agreement the said Mrs. Eliza C. Hartel for herself, her heirs and executors, will not sell or rent or allow to be sublet any store or premises in Lansdowne on Baltimore Avenue and Landsowne Avenue for a drugstore for a period of two years.”</p> <p>The plaintiff having proven and introduced the above, contract in evidence proved an assignment of it by J. V. Slaughter to the plaintiff under date of October 1, 1908.</p> <p>The first question which arises is, as to whether the above contract is a lease, or whether it is an agreement personal to Slaughter. About this there would seem to be little room for difference of opinion. She says in it that she rents the property. She calls it a housekeeping flat. She rents it in a furnished condition. She designates the rooms by occupation names: dining room, sitting room, kitchen and bedroom, and she agrees to provide heat, light and cooking, gas for occupation. The paper specifies a term, with a specific beginning and ending. It reserves a definite rent. It provides for renewal, and in this connection the document is called a lease. No particular form of words is necessary to constitute a lease. “Whatever words show an intention on the part of the lessor to dispossess himself of the premises, and on the part of the lessee to enter and hold in subordination to the lessor’s title are sufficient:” 18 American & English Ency. of Law (2d ed.), 605; Watson v. O’Hern, 6 Watts, 362; Steel v. Frick, 56 Pa. 172; Noll v. Kline, 1 Del. County, 101.</p> <p>It is not necessary that the term lease should be used: Moore v. Miller, 8 Pa. 272.</p> <p>All of the requisites of a lease are contained in the writing: Bussman v. Ganster, 72 Pa. 285.</p> <p>We, therefore, conclude that this contract is a lease.</p> <p>It is not a mere personal license. An agreement for the occupation of rooms in a clubhouse for a term, in consideration of a certain sum and services is a lease; Kunkle v. Philadelphia Rifle Club, 10 Phila. 52.</p> <p>Apartments in a house may be leased: 2 Leading Cases on the American Law of Real Property with notes by Sharswood and Budd, 57.</p> <p>The next question which arises is, whether the lease is assignable, so as to enable the assignee to sue in his own name. The legal proposition is stated to be, “In the absence of an express restriction either by contract or by statute, the right of the tenant to assign his leasehold estate is incident to every tenancy either for life, for years, or from year to year, and it is not necessary that the lease run to the lessee and assignee:” 13 American & English Enc. of Law (2d ed.), 659.</p> <p>But it appears that Slaughter made no entry on the demised premises, prior to his assignment to Davis. At common law a lease was not complete until entry by the lessee. Before such entry his right was an interest in the term, interesse termini: Sennett v. Bucher, 3 P. & W. 392; Williams v. Downing, 18 Pa. 60; Carnegie Nat. Gas Co. v. Philadelphia Co., 158 Pa. 317. But this interesse termini may be granted or assigned by the lessee: 1 Washburn on Real Property (ed. 1860), p. 296.</p> <p>We, therefore, conclude that the plaintiff became possessed, by virtue of the assignment, of the right to the demised premises.</p> <p>It appeared that the defendant refused to allow the plaintiff to occupy the demised premises. Hence this suit was brought to recover the loss thus sustained. The question of the value of the term was submitted to the jury under all of the evidence, who rendered a verdict for the plaintiff for $829.50.</p> <p>The defendant’s contention was:</p> <p>1. That the contract of September 17, 1908, was personal to Slaughter, and therefore could not be assigned to another. We have considered this question above and from the construction of the writing, in the light of the authorities above cited, we-have concluded that this defense is not good in law.</p> <p>2. That there was fraud, accident or mistake in the execution of the contract, which requires it to be reformed, leaving out of it the part referring to the renting of rooms.</p> <p>3. That there was a stipulation entered into, a condition annexed or a promise made, contemporaneous with the execution of the contract, that the part thereof referring to the renting of rooms should be without binding force.</p> <p>The evidence respecting the latter two contentions was substantially this: Slaughter was the occupant of a drugstore in Lansdowne avenue and Mrs. Hartel owned a property on the opposite comer. Two young men by the name of Brown and Jessup had applied to Mrs. Hartel, soliciting her to build a drugstore on her property and rent it to them. Then Mrs. Hartel and Slaughter had a conversation in which he said he would not mind paying $200 to keep Brown and Jessup from coming in; and she said that it would be well for him to give her $1,000, to stop them from having a drugstore there. He said they would have another .interview. The interview took place, he offered $200 to keep them out, then raised it to $500, then to $800, and a loan to her of $200. She declined anything less than $1000. Then he said, “If I give you $1,000, you agree not to let Brown and Jessup have this place for a drugstore?” She said, “Yes.” Then he said, “Haven’t you some rooms, just so we can call this $1,000 room rent?” She said, “I wouldn’t like to call it room rent.” Then he said “We will just use that word room rent for a bluff.” He said “Show me some rooms, just let me look at some rooms.” Then she showed him some rooms. An agent for Slaughter, subsequently on the same day, presented to her the agreement for her signature, with a $1,000 check. She said, “I don’t like this question of room rent in this contract.” The agent said that Slaughter said that you and he thoroughly understood that between yourselves. This evidence was substantially supported by two witnesses.</p> <p>It is to be noted that this evidence does not indicate that anything was omitted from the agreement by fraud, accident or mistake, neither does it show any promise made by Slaughter, nor a stipulation or condition, upon the faith of which Mrs. Hartel executed it. What is set up is something directly contravening the writing. Under such circumstances the writing is the sole evidence of the agreement: Martin v. Berens, 67 Pa. 459. If there had been such promise, stipulation or condition, and if she had signed the paper upon the faith ■of it, parol evidence would be admissible to reform the contract: Greenawalt v. Kohne, 85 Pa. 369; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Keller v. Cohen, 217 Pa. 522; Gandy v. Weckerly, 220 Pa. 285. It might be surmised that she would not have signed a paper understanding it to be an actual lease, but she does not say so, and the burden here is upon her, and the weight of the burden must be lifted by evidence, clear, precise and indubitable.</p> <p>The propositions of law are these:</p> <p>1. Writings may be reformed by parol evidence of fraud, accident or mistake in the execution of them, and the evidence of the fraud, accident or mistake must be clear, precise and indubitable, and supported by two witnesses or their equivalent.</p> <p>•2. Parol evidence may be received to prove a stipulation entered into, a condition annexed or a promise made, upon the faith of which the writing is executed.</p> <p>3. And this although it may vary and materially change the terms of the contract, and in such case the proof must conform to the equitable requirement.</p> <p>Manifestly the case in hand does not come within the first class. As was said by Stewart, J., in Croyle v. Cambria Land & Imp. Co., 233 Pa. 310, “Admittedly both parties knew exactly what the deed of release contained, and all that it contained before it was signed and sealed. This left no possible grounds 'for reformation. As written, untainted by fraud, and standing clear of mistake, it was the contract of the parties to be by each accordingly observed.”</p> <p>The case must be treated as one under the second and third heads. If Slaughter had promised the defendant not to occupy the demised premises, and if she had signed relying upon his observance of such promise, his repudiation of it would be a fraud against her, against which she could be protected. What he did say was that the demising clause was a bluff. This is an equivocal expression. As interpreted in the light of their conversation, it apparently meant that the demising clause was to serve as a warrant for the payment of $1,000, and relieve him from the criticism of paying money and contracting directly for the exclusion of a competitor. Hence the greater the verity of the demise, the better it served its purpose, and the greater the bluff. The bluff was not to operate on the parties, for the exclusion of the competitor was expressly mentioned. The pretense was to be made to the public, who might learn that he had paid her money, and who would see him occupying her premises and would naturally conclude that the money was paid as rent.</p> <p>In short, Mrs. Hartel knew what she was signing and there was no fraud, accident or mistake in the execution of the writing.</p> <p>And there was no promise made by Slaughter not to occupy the premises, and she did not therefore sign the paper upon any such inducement.</p> <p>The foregoing disposes of all the questions urged by the defendant in support of her motions, and entertaining the views expressed, we deny defendant’s motions for judgment non obstante veredicto and for a new trial.</p> <p>Error assigned among others was in refusing judgment for plaintiff n. o. v.</p>

<p>Debtor and creditor — Corporation—Evidence—Husband and wife— Competency of witness — Act of May 88,1887, sec. 5, P. L. 158.</p> <p>1. In an action by a married woman against a corporation to recover</p> <p>for money had and received, the plaintiff put in evidence a check for $1,000 drawn by her father to her order, indorsed by her to the order of the company defendant, and indorsed by her husband, the treasurer of the company. She also showed that this check was deposited in bank to the credit of the company and was paid. She testified further that she had borrowed the $1,000 from her father, and that she had loaned it to the company. The defendant offered evidence tending to show that the company received the money not as a loan, but in part payment of shares of capital stock of the company for which plaintiff’s husband had subscribed, and for which he subsequently received certificates. The evidence also tended to show that plaintiff neither received nor asked for any obligation as evidence of the alleged debt nor did she receive or demand interest, although she knew that the company was able to pay it; that balance sheets showing the indebtedness of the company, and to whom owing, but omitting her name as a creditor were from time to time presented at stockholders’ meetings at which she was present, and no objection was raised by her; and that no demand had been made by her upon the company, or notice given by her of the claim until suit was brought, which was about five years after the date of the alleged loan. Held, that the case was for the jury, and that the trial judges committed no error in calling to the jury’s attention the various circumstances tending to negative the plaintiff’s claim. -*</p> <p>2. In such a case it is not error to permit the defendant’s bookkeeper to testify that he entered the check in the company’s cashbook on a date stated crediting the plaintiff’s husband with the money.</p> <p>3. The plaintiff will not be permitted in such a case to testify that prior to the giving of the check her husband told her the company was short of money, and asked her for the loan of $1,000 to the company, and that in response to this request she procured the check and gave it to her husband as treasurer of the company, and that her husband promised that it should be repaid to her. The admission of such evidence would contravene the provision of sec. 5 of the Act of May 23, 1887, P. L. 158, which forbids a wife to testify against her husband. Such testimony would tend to show that plaintiff’s husband was guilty of fraud not only upon her, but upon the company in misappropriating the check to his own benefit.</p>

<p>Appeal, No. 149, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 5,132, for defendant in case of Alexis Yon Koille v. Benjamin Robinson.</p> <p>Trespass for false arrest. Before Sulzberger, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was in entering judgment for defendant n. o-. v.</p>

<p>Appeal, No. 165, Oct. T., 1913, by defendant, from order of Q. S. Phila. Co., May Sessions, 1913, No. 2, discharging rule to open judgment in case of Commonwealth v. Jacob Blumberg.</p> <p>Rule to open judgment-.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 101, Oct. T., 1913, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1910, No. 1,156, on verdict for plaintiff in case of Pilgrim Laundry Company v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for injuries to a horse and wagon. Before Willson, P. J.</p> <p>At the trial it appeared that the accident happened on December 4, 1909, between five and six o’clock in the evening, and after dark. The circumstances relating to it are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $134.35. Defendant appealed.</p> <p>Errors assigned were (2) in refusing binding instructions for defendant, and (3) refusing motion for judgment for defendant n. o. v.</p>

<p>Turnpike roads — Inquisition as to repair — Disinterested freeholders— Qualification of freeholders.</p> <p>Where, in a proceeding under the Act of March 2, 1805, 4 Sm. Laws, 216, to determine whether a turnpike road is out of repair and to stop collection of tolls thereon, it appears that the constable had duly-returned under oath, that he had summoned three disinterested freeholders, and the company merely enters a general objection to the t freeholders without stating any cause for challenge or offering to produce evidence to support it, and the justice overrules the objection, the company will not, at the second meeting, after the inquisition has been organized, be permitted to examine the freeholders as to their interest and competency.</p>

<p>Principal and surety — Interpleader bond — Judgment—Rights of surety who has paid judgment.</p> <p>1. When a party is required to pay a debt for which he has made himself legally liable, as surety, for which another is liable as principal, and which that other in good conscience ought to pay, such payment operates to invest the party paying with the creditor’s rights and remedies against the principal debtor.</p> <p>2. Where the subject-matter is situated within another state or county but the parties are within the jurisdiction of the court any suit may be maintained and remedy granted which may directly affect and operate upon the person of the defendant and not upon the subject-matter although the subject-matter is referred to in the decree and the defendant is ordered to do or refrain from 'certain acts toward it and it is thus ultimately but indirectly affected by the relief granted.</p> <p>3. A surety on an interpleader bond who has paid a judgment recovered against himself in a suit on the bond, is entitled to compel from the party who received payment, an assignment to himself of a judgment recovered against the principal in the interpleader proceedings, and also an award of the orphans’ court made against the estate of the principal after the latter’s decease, based on the judgment in the interpleader proceedings, and surcharging the administrator for the amount thereof; and this is the case although the party in the inter-pleader proceedings who secured the judgment, and to whom the payment was made, was the surety of the administrator of the deceased principal. In such a case the surety on the interpleader bond had a standing in the orphans’ court to compel a proper accounting by the administrator.</p>

<p>Replevin — Bailment—Set-off—Affidavit of defense — Payment.</p> <p>• 1. In an action of replevin for goods which had been delivered by the plaintiff to the defendant under a bailment and retaken by the plaintiff for default of weekly installments of rental, the defendant cannot set off an overpayment on another and entirely distinct transaction.</p> <p>2. An affidavit of defense averring payment is insufficient where it does not state how and when the payment was made.</p>

<p>Railroads — Land damages — Bonds—Principal and surety — iLiability of surety.</p> <p>1. Where a bond given by a railroad company to secure land damages binds the railroad company and the surety to pay a sum stated, the surety will be liable only for the amount stated, although the condition of the bond is that if the railroad company shall pay such amount of damages as the obligee shall be entitled to receive in consequence of the location of the railroad “whether the same exceed the amount of the penalty in this bond mentioned or not, without fraud or further delay, then this obligation to be null and void.”</p> <p>2. The liability of a surety in a bond given to secure the performance of collateral acts is limited by the penal sum therein expressed. He does not undertake to perform the act to be done by the principal, but pledges himself to compensate the obligee to the extent of the penalty for the failure of the principal to make good his promise. If the surety pays the amount named in the bond, he is discharged.</p> <p>3. Although a bond filed by a railroad company and a surety company for land damages is to be construed most strongly against the obligors because they fixed its terms, it is still to be construed according to its language in the absence of competent parol evidence qualifying it. Wadhams v. Lackawanna & B. R. R. Co., 42 Pa. 303, distinguished.</p>

<p>Appeal, No. 219, Oct. T., 1913, by defendants, from order of C. P. No. 5, Phila. Co. June T., 1913, No,. 3,779, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Kittanning Plate Glass Company v. Max Krakovitz et al., trading as M. Krakovitz & Son.</p> <p>Assumpsit on a promissory nóte.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are 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>Principal and agent — Evidence as to agency — Declarations of agent— Burden of proof — Ratification.</p> <p>1. The burden of proving both the fact of agency and its scope lies on him who asserts them. Prima facie, the powers of an agent are limited to those expressly granted, or arising by implication from the character of the grant. The burden of proof lies on him who asserts that they have been enlarged by the acts of the principal.</p> <p>2. A selling agent for an elevator has no authority, under his agency to sell, to agree that the principal would resell the machine for the purchaser’s benefit at two-thirds of its cost price whenever the purchaser might determine not to use it longer, and whatever might be its condition and value at that time. A letter written long after the sale by the principal to the purchaser stating that the former had learned, at some time not stated, that the agent had promised that he, the agent, would try to make some disposition of the elevator for the benefit of the purchaser is not an admission on the part of the principal of precedent authority to make the agreement, nor does it furnish stable ground for an implication of a ratification of the alleged contract.</p>

Appeal, No. 112, Oct. T., 1913, by defendant, from order of C.' P. No. 2, Phila. Co., March T., 1913, No. 392, discharging rule to set off one judgment against another in case of Harry J. Shoemaker, Trustee in Bankruptcy of Nicholas Ushka, v. Harry Hurwitz. Rule to set off judgment. Barratt, J., filed the following opinion: On Jamiary 30, 1911, one Nicholas Ushka gave his judgment note for $100 to Harry Hurwitz for certain indebtedness.

Appeal, No. 209, Oct. T., 1913, by plaintiff, from order of C. P. Del. Co., Dec. T., 1912, No. 19, quashing summary conviction in case of Commonwealth v. Serveria Barbono. Certiorari from summary conviction.

Appeal, No. 166, Oct. T., 1913, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1913, No. 551, making absolute rule for judgment for want of a sufficient affidavit of defense in case of City Trust & Savings Bank v. Charles Schwartz and Samuel Strauss, trading as Schwartz, Strauss & Company. Assumpsit by the indorsee of a cheek against the maker. The material portions of the statement of claim were as follows: 3.

Appeal, No. 164, Oct. T., 1913, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 4,709, for defendant non obstante veredicto in case of William C. Patterson v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Kinsey, J. The circumstances of the accident are stated in the opinion of the Superior Court. The jury returned a verdict for plaintiff for $650.