Volume 68 — Pennsylvania Superior Court Reports

<p>Appeal, No. 326, Oct. T., 1916, by defendant, from judgment of G. P. Delaware Co., Sept. T., 1913, No. 184, on verdict for plaintiff in case of Thomas H. Garvin v. J. Watts Mercur.</p> <p>Trespass for slander. Before Johnson, P. J.</p> <p>The statement of claim charged that the defendant did on the twenty-second day of October last past, at the County of Delaware, in the course of a political speech he was delivering in the Borough of Media in said county, falsely, maliciously, wickedly and illegally speak and publish the following false, scandalous, illegal, defamatory and malicious slander in substance as follows:</p> <p>“The leaders of the Republican machine in this county are dishonest, and if most of them had their just deserts they would be in State prison to-day. I will name some of them as I go along.</p> <p>“Tom Garvin, chairman of the Republican County Committee. Now, gentlemen, I will tell you something that may be news to you with reference to Mr. Garvin. Last fall, during our campaign a man went to Philadelphia to a......company in Philadelphia and signed a contract agreeing to pay one hundred dollars for posting certain fake Bull Moose and Progressive posters in certain precincts in this county. The man who went and signed that name forged the name of Frank G. Perrin. I don’t hesitate to say that Frank G. Perrin might have done this same thing, but he did not. His name was forged. The name of the man who paid the bill, one hundred dollars cash, signed the name ‘S. D. Shuster,’ and told them to send the receipt to Media; he would get it at the Media post office. No address. Of course he would get it at the Media post office. At that time he had a friend in Media post office, but thank God that friend is not there to-day. But the man who signed the name, ‘S. D. Shuster’ was Tom Garvin. He is the man who signed the name *S. D. Shuster.’ There is no S. D. Shuster in Delaware County. He filed no account for that expenditure of one hundred dollars, thereby meaning and intending to charge the plaintiff with having forged the names of Frank G. Perrin and S. D. Shuster, and further meaning the plaintiff should be in State prison. The plaintiff further avers that he is in no wise guilty of the said forgeries by the said false, scandalous and defamatory words so injuriously laid to his charge; that the said charge as aforesaid spoken and published by the said J. Watts Mercur against the plaintiff is false and untrue; that the plaintiff never signed the name of Frank G. Perrin or S. D. Shuster to any paper, nor did the plaintiff pay the money in said charge referred to. The plaintiff further denies any and all knowledge of or connection with the transaction in said charge referred to. If said transaction took place the plaintiff had no connection therewith whatsoever either directly or indirectly. The plaintiff further avers the said charge so as aforesaid spoken and published by the said J. Watts Mercur is a false and malicious slander.”</p> <p>At the trial the court charged as follows:</p> <p>This is what is known as a suit for slander. Slander is a wrong to another’s reputation by spoken words. In other words, it is a wrong to utter words against another that injures his reputation and which is the subject of a law suit, and that law suit is known as a slander suit. The allegation here is that this defendant, Mr. Mercur, during a political campaign, in a public speech, spoke the words set forth in this declaration; and that the allegation is that the purport of these words is to charge Mr. Garvin with forgery, to charge him with an offense the punishment of which would confine him to the State prison. And the contention of the plaintiff is that that is the meaning and the true meaning of these words. They have been read to you by counsel for the plaintiff and for the defendant. In the presence of the suggestion of the court as to what slander is, we will read it again. Does this language uttered by the defendant, Mr. Mercur, charge Mr. Garvin with forgery? With an offense which if he had his just deserts he would be. in the State prison to-day. If it does, then Mr. Mercur would be liable for whatever damage you shall say the plaintiff has suffered by reason of their utterance. We will read this paper; because, upon its construction will depend your verdict: “The leaders of the Republican machine in this county are dishonest, and if most of them had their just deserts they would be in State prison to-day.' I will name some of them as I go along. Tom Garvin, chairman of the Republican County Committee.” Now the contention of the plaintiff in this case is that what the court has just read to you is equivalent to saying that Tom Garvin, chairman of the Republican County Committee, is dishonest and if he had his just deserts he would be in the State prison to-day.</p> <p>“Tom Garvin, chairman of the Republican County Committee — ” Now he said: “Now, gentlemen, I will tell you something that may be news to you with reference to Mr. Garvin — ” and then recites the circumstances which it is said took place in Philadelphia. Evidently all this relates to Mr. Garvin, because he says: “I will tell you something that it may be news to you with reference to Mr. Garvin.” And then he recites this circumstance about signing a paper, and he says: “The man who went and signed that name forged the name of Frank G. Perrin. I don’t hesitate to say that Frank G. Perrin might have done this same thing but he did not. His name was forged.” Now the contention of the plaintiff is that is a declaration, first by saying that a man went to Philadelphia, that Perrin’s name was forged, that Perrin didn’t do it, but his name was forged. Now, the contention of the plaintiff is that that is just as though Mr. Mercur had said that the plaintiff forged the name of Prank G. Perrin. The circumstance is continued. The name of the man who paid the bill relating to this transaction in Philadelphia he said was Shuster. Then he goes on to tell some other circumstance and winds up by saying “but the man who signed S. D. Shuster was Tom Garvin, he is the man who signed the name of S. D. Shuster. There is no S. D. Shuster in Delaware County.” Well, he might not be in Delaware County, but he could be somewhere else. Now the contention of the plaintiff is that that whole article does say, does declare, and does say that this defendant charged the plaintiff with committing an offense that ought to consign him to the State prison, and that offense was the forgery of Perrin’s name and the forgery of Shuster’s name, one or both. That is all there is in this case. Take this paper with you. Read it. And if from it you are satisfied that it does charge the defendant — that it did charge the plaintiff with the forgery of Perrin’s name or Shuster’s name or both, did charge that offense that would land him in State prison, then the plaintiff is entitled to your verdict. If you find that this article is defamatory, that it charges him with an indictable offense, the punishment of which would be infamous, if you find that, then that imports that it is maliciously or negligently made, and requires no proof either of malice or negligence. It will be for you to say, the burden is on the plaintiff to convince you, if he fails the defendant is entitled to your verdict. If you find for the plaintiff you will say how much damages the plaintiff is entitled to to compensate him for this wrong against his good name and character. That is a question for you. What will compensate him. There is no punitive damages asked, as we understand, at all. That is there is no damages asked by way of punishing the defendant for any reckless disregard of the use of language. But damages that will compensate the plaintiff for the circulation of this slander against his good name. That is for you.</p> <p>Verdict and judgment for plaintiff for $1,200. Defendant appealed.</p> <p>Error assigned, among others, was the charge of the court. ' -</p>

<p>Appeal, No. 260, Oct. T., 1916, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1913, No. 41, on verdict for plaintiff in case of Henry S. Witmer v. Royal Insurance Company, Limited, of Liverpool.</p> <p>Assumpsit on a policy of' fire insurance. Before Landis, P. J.</p> <p>Prom the record it appeared that the suit was brought to recover a loss on a fire insurance policy. The defendant claimed that there had been a written adjustment of the loss under an agreement referred to as an appraisal agreement made with the General Adjustment Bureau. The policy in suit contained a provision that “no person unless duly authorized in writing shall be deemed the agent of this company.”</p> <p>When George Y. Steeb ivas on the stand the following offer was made:</p> <p>“Mr. Nauman: We offer to prove, by this witness, that the General Adjustment Bureau is a New York corporation, of which the Royal Insurance Company is a stockholder; that the province of the General Adjustment Bureau is to act for -their stockholders and adjust losses; and that they have authority to do everything for their stockholders, in connection with the adjustment of losses, including the signing and entering into of appraisal agreements. This to be followed by proof, from letters, that the matter of this loss was referred to the General Adjustment Bureau, to adjust.</p> <p>“Mr. Keller: Objected to as irrelevant, immaterial and not the best evidence.</p> <p>“The Court: That is disallowed. It is not the best evidence. Exception noted for the defendant. (3)</p> <p>“Mr. Nauman: If the court please, we now offer the appraisal agreement.</p> <p>“Objected to by the plaintiff. Disallowed. Exception noted for the defendant.” (4)</p> <p>The court charged in part as follows:</p> <p>[This, probably, was the truth; but you will determine the controversy for yourselves, if necessary. I do not think that this is important at this time, as to who suggested the appraisement, because the paper itself has-been excluded by the court as evidence, for the reason that I think there was no adequate proof produced that Mr. Owrey, who signed for the company, had, under the law, any authority to make an agreement on its behalf, and the company was, therefore, not bound by the agreement, and, as there had to be mutuality in a contract between them, if it was not bound, Mr. Witmer was in like manner not bound. That is the reason why the paper, as a paper, was excluded, and, of course, you will not consider it in arriving at your conclusion. ] (5)</p> <p>[There was no evidence that the general adjustment bureau or any other person had direct authority, either verbal or written, from the Royal Insurance Company to adjust this loss.] (6)</p> <p>[Can it be said that if the appraisement had been for the full amount of the policy, the plaintiff, under the present state of the record and in the face of the policy could have insisted on its binding effect? If he could not have done so, it follows that the defendant, for the same reason, has no right to hold him to this agreement, for mutuality of contract must have existed between the parties. Nor can it be pretended that the company ever ratified the contract. There is no evidence that it had any knowledge that Owrey was acting as its agent or adjuster, or that it knew of the award before the suit was brought.] (7)</p> <p>[In this case, the character of the examination by the arbitrators of the injured property was such as to make it extremely doubtful whether the award could be sustained as a matter of law. Of course, the testimony differed upon this point; but, if the plaintiff was believed, it would seem that the examination was inadequate and the conduct of the arbitrators arbitrary. All the facts surrounding the arbitration were admitted in evidence and submitted to the jury on the question of the extent of the loss incurred. It is plain that, unless the arbitration could be considered as a bar to the plaintiff’s recovery, its rejection as evidence did no harm.] (8)</p> <p>Verdict and judgment for plaintiff for $369.83. Defendant appealed.</p> <p>Errors assigned, among others, were, (3, 4) ruling on evidence quoting the bill of exceptions; (5, 8) above instructions quoting them.</p>

<p>Appeal, No. 334, Oct. T., 1916, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1912, No. 233, on verdict for plaintiff in case of James Conn v. Lehigh Valley R. R. Co.</p> <p>Trespass to recover damages for personal injuries. Before Maxwell, P. J.</p> <p>At the trial it appeared that plaintiff was injured on December 13, 1911, while working for one John M. Coe, a contractor, engaged in the construction of a dock for the firm of Roof & Wilcox, near Rummerfield Station of the defendant railroad. The circumstances of the accident are detailed in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiff for $970.83. Defendant appealed.</p> <p>Errors assigned were various instructions and in submitting the case to the jury.</p>

<p>Appeal, No. 31, April T., 1917, by defendant, from decree of C. P. Allegheny Co., July T., 1915, No. 1566, on bill in equity in case of .Willis B. Law and Robert B. Mitchell v. Albert C. Weeter.</p> <p>Bill in equity for an injunction.</p> <p>Macfarlane, J., found the facts to be as follows:</p> <p>Each of plaintiffs are owners of adjoining lots, and filed this bill to enjoin the defendant from erecting on his adjoining lot an enclosed porch in front of the building line.</p> <p>FINDINGS OF FACT.</p> <p>First. Plaintiff, Law, has been for some years the owner of lot No. 70, Mitchell of lot No. 69, and the defendant of lot No. 71 in the Milligan Manor plan of lots, recorded in 1899, upon which appears a building line on the great majority of the lots. The lots upon which the line is indicated, including 69, 70 and 71, are subject to a restriction as follows: “The following easements are annexed to said described lot as easements appurtenant thereto, viz: No house shall be erected upon said lot costing less than fifteen hundred ($1,500) dollars, and the front thereof shall not be nearer than fifteen (15) feet from said Melrose street.”</p> <p>Second. The front of Weeter A house, not including an open porch, was set back twenty feet from Melrose street. Law then erected his on the same line, and Mitchell built his on the fifteen-foot line, open frame porches on the plaintiffs’ lot extending in front of the fifteen-foot line. The defendant recently extended the front of his house five feet, bringing it to the fifteen-foot line, and he then erected in front thereof the structure of which complaint is here made.</p> <p>Third. The structure consists of three brick piers eighteen inches square extending as high as the building, which is three stories, and on the two upper stories, supported by the building and piers, are two open balconies or porches, and on the ground floor there is an enclosure of wood and glass, making a permanent room connected with the main house and, since its completion, is and has been used as a part thereof. This room obstructs light, air and prospect and mars the appearance and uniformity of the street, and deprives the plaintiffs of the light, air and prospect theretofore enjoyed by them.</p> <p>Fourth. Prior to the construction of this enclosed room by the defendant, the lot owners throughout the plan had erected their houses on or back of the fifteen-foot line with no structures in front except open porches.</p> <p>The appearance of defendant’s home is shown by the cut on following page (26).</p> <p>The court entered a decree in favor of the plaintiffs.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 288, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1910, No. 115, for plaintiff on case tried by the court without a jury in suit of E. S. Campbell v. J. W. Beaman et al.</p> <p>Assumpsit to recover back installments of purchase-money paid for a lot of ground.</p> <p>The case was tried by the court without a jury.</p> <p>Johnson, P. J., specially presiding found as follows:</p> <p>FINDINGS OF FACT.</p> <p>First: On April 7, 1903, on application of E. F. Herrick, M. L. Case, L. T. Hoyt, G. M. Clark, B. T. Hale, J. Boy Lilley and J. W. Beaman, the Sayre & Athens Beal Estate Company was duly incorporated under the laws of the State of Pennsylvania, for the purpose of holding-, leasing and selling real estate. But the plaintiff was unaware of the fact that the said company was incorporated.</p> <p>Secondly: After the incorporation of the said company, to wit, about July 1,1903, said company was duly organized and shares of stock were issued respectfully to the following: E. F. Herrick, L. T. Hoyt, B. T. Hale, J. Boy Lilley, G. M. Clark, J. G. Pratt, H. M. Turner, J. W. Beaman, David J. Fanning, M. L. Case, Carpenter & Pierce, and the Athens Bealty and Investment Company, and on March 15,1910, the charter of said company was recorded in the recorder’s office of Bradford County.</p> <p>Thirdly: On or about July 1, 1903, the Sayre & Athens Beal Estate Company purchased a lot of land situate in the Borough of Athens, Bradford County, Pennsylvania, of about sixty-five acres and plotted the same for the purpose of sale into four hundred and twenty lots.</p> <p>Fourthly: On or about September 30, 1903, the said company entered into a contract with the plaintiff relating to the lots that had been so acquired and plotted, said contract purporting to vest in the plaintiff a right thereafter to acquire a lot on said plot, the location of which said lot was to be afterward determined by a drawing, when sixty per cent, of the purchase-price of all the lots on said plot had been paid to the said company, at which drawing there was to be distributed by chance by said company, among only some of the contracting parties with said company the sum of ten thousand dollars.</p> <p>Fifthly: Plaintiff made payments to the said company upon the contract referred to, as follows: September 30, 1903, $10; October 17, 1903, $5; November 13, 1903, $5; December 11, 1903, $5; January 20, 1904, $5; February 20,1904, $10; April 25, 1904; $10; July 12, 1904, $5; August 16, 1904, $5; February 20, 1905, $10; April 15, 1905, $5; a total of $75.</p> <p>Sixthly: On October 19, 1907, plaintiff was notified that the defendants were unable to carry out their contract. Sixty per cent, of the purchase-price of all said lots on said plot was never paid to the said company, and no drawing or selection of lots was made. On March 29, 1910, the plaintiff repudiated his contract and demanded back the money which he had paid.</p> <p>Seventhly: This suit was brought by the plaintiff against the defendants,-Joseph W. Beaman, Gilbert M. Clark, Benjamin T. Hale, E. F. Herrick, Louis T. Hoyt, David J. Fanning and J. Roy Lilley on the 6th day of October, 1910, but the Athens Realty and Investment Company, a corporation, one of the defendants, was brought in as a party defendant, by leave of court, by amendment, and the issuance of an alias summons on March 25, 1912, the plaintiff not being aware at the beginning of the suit that the Athens Realty and Investment Company was a stockholder in the Sayre & Athens Real Estate Company.</p> <p>Eighthly: The amount paid by plaintiff is $75; the interest thereon from March 29, 1910, is $27.98; the total amount due is $102.98.</p> <p>From the foregoing facts we arrive at the following</p> <p>CONCLUSIONS OF LAW:</p> <p>First: The contract of Sept. 30, 1903, between the plaintiff and the Sayre & Athens Real Estate Company is a gambling contract and therefore illegal and void.</p> <p>Secondly: But there was a locus poenitentise before the consummation of the transaction and after the defendants notified the plaintiff of their inability to carry out their contract, and the plaintiff, on March 29, 1910, demanded back his money, his right to recover the same in an action at law became complete.</p> <p>Thirdly: The Athens Realty and Investment Company, a stockholder in the Sayre and Athens Real Estate Company, having been made a party defendant in this action by amendment of the pleadings after the institution of the suit by leave of court and by an alias summons, became in effect a party defendant from the beginning of the suit.</p> <p>Fourthly: The charter of the Sayre and Athens Real Estate Company, not having been recorded until March 15, 1910, after the said payments were made by the plaintiff and the incorporation of the said company having been unknown to the plaintiff, the stockholders of the Sayre and Athens Real Estate Company became liable to the plaintiff as partners.</p> <p>Fifthly: The statute of limitations began to run against the plaintiff’s claim March 29, 1910, the locus poenitentise, when the plaintiff demanded back his money and his right to recover the money paid by him became complete, and the statute is therefore no bar to any of the plaintiff’s claim for money paid.</p> <p>Sixthly: The plaintiff is entitled to recover in this action the money paid, to wit, $75, and interest thereon from March 29, 1910, amounting to $27.98; or a total sum of $102.98.</p> <p>DISCUSSION.</p> <p>The contract was a gambling transaction and therefore illegal: 14 Am. & Eng. Ency. of Law 583; Seidenbender v. Charles, 4 S. & R. 151, but the plaintiff repudiated his agreement, as he has a locus poenitentiae, and claimed his money: 9 Cyc. 554; Peter v. Grim, 149 Pa. 163; Knowlton v. Empire Spring Company, 103 TJ. S. 49.</p> <p>The Athens Realty & Investment Company, having been joined with the defendants in the suit by amendment and by alias summons duly served, is affected, as if included and served at the institution of the suit: Taylor & Fitzsimmons v. Henderson, 17 S. & R. 453; Magaro v. Clark, 6 Watts 528; McClurg v. Fryer & Anderson, 15 Pa. 293; Wann v. Pattengale, 14 Pa. 313; Bickel’s App.,'86 Pa. 204; CurcieFs Est., 28 Pa. 261.</p> <p>We doubt whether defendants can avail themselves of the statute of limitations; but, in any event, the statute did not begin to run.before the locus poenitentiae and demand for the money. No right to sue accrued before the locus pcenitentise and the statute does not run before the right to sue accrues.</p> <p>And now, June 19, 1916, judgment is entered for the plaintiff for $102.98, unless exceptions are filed hereto within thirty days as provided by law.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 324, Oct. T., 1916, by George Fey, from, judgment of O. P. Schuylkill Go., May T., 1915, No. 423, refusing certain surcharges In re Appeal from the Report of the Auditors of the Borough of Tamaqua.</p> <p>Appeal from report of the auditors of the Borough of Tamaqua. Before Bechtel, P. J.</p> <p>The facts are stated in the opinion of the Superior Court.</p>

Appeal, No. 51, March T., 1917, by defendants, from decree of O. P. Luzerne Co., June T., 1916, No. 1, on bill in equity in case of Thomas F. Johnston v. James Hennan et al. School Directors of Wilkes-Barre Township School District. Bill in equity for an injunction. The facts appear by the opinion of the Superior Court Error assigned was decree awarding an injunction.

<p>Appeal, No. 34, March T., 1917, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1914, No. 576, on verdict for defendant in case of Joseph Krogulski v. Northwestern National Insurance Company of Milwaukee.</p> <p>Assumpsit on a policy of fire insurance. Before Woodward, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p>

<p>Vendor and vendee — Articles of agreement — Default in payment of installments — Forfeiture.</p> <p>Where articles of agreement for the sale of a lot of land provide for the payment of the purchase-money in installments on days specified, and for a deed to the vendee after all the installments are paid, and it is further provided that “the payment of the said installments as the same severally fall due, is made material, and the failure to pay any one of them on the day on which the same falls due, shall be an absolute forfeiture of this contract,” and’it appears that the vendee enters into possession, pays some of the installments which were accepted after the date when they were due, and finally ceases to pay the taxes and defaults, and continues the default for several years, and then departs and does not return, the vendor may convey the property to another person and give a good title free from any equity in the vendee under the articles of agreement.</p> <p>In such a case the fact that the véndee under the articles permitted his sister-in-law who resided on an adjoining lot, to use the lot in question, or a portion of it as a garden, and temporarily for hen coops, does not furnish any foundation for the claim of the sister-in-law for title to the lot by adverse possession.</p>

<p>Beneficial associations — Death benefits.</p> <p>Podell v. Miller, 193 Pa. 570; explained and distinguished.</p>

<p>Public officers — Recorder of deeds — Records—Indices—Act of May 26,1891, P. L. 129 — Jurisdiction of Common Pleas.</p> <p>Under tbe Act of May 26, 1891, P. L. 129, which empowers the Court of Common Pleas to change and alter the mode of “keeping of the indices” in the office of recorder of deeds and other public offices, the court may make an order directing such change and prescribing the manner in which the indices are thereafter to be kept, but it has no jurisdiction to direct the county commissioners to enter into a contract for the necessary books and to direct them to employ some one to transcribe the records into the new books. This is a matter for the recorder of deeds or other officer whose records are affected.</p>

<p>Appeal, No. 58, March T., 1917, by defendant, from judgment of C. P. Luzerne C5o., Oct. T., 1914, Ho. 1678, on verdict for plaintiff in case of Thomas Gosh and Annie Gosh, each in his and her own right, v. The Lehigh & Wilkes-Barre Coal Co.</p> <p>Trespass to recover damages for death of plaintiffs’ son. Before Strauss, J.</p> <p>Prom the record it appeared that on August 25,1913, John Gosh, the plaintiffs’ son, was killed by a fall of rock in Nottingham Mine, at Plymouth. The accident, it was averred in the statement, was the result of negligence in. that defendant failed to maintain the roof of the. mine in the safe condition required by the Mine Ventilation Law of June 2,1891, P. L. 678. Other facts are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for plaintiffs for $1,000. Defendant appealed.</p> <p>Errors assigned, among-others, were (7) refusing to strike out the evidence of Anna Gosh, the aunt of the deceased as to his age; (8) in allowing Anna Gosh to testify to the declarations of the godmother of the deceased as to his age; (9) in admitting in evidence the report or notice filed by the defendants ydth the mine inspector in which the age of the deceased was stated to be twenty-two years; (10-15) admitting in evidence various declarations of the deceased as to the continuance of family relations with his parents; (18,19) portions of charge as follows:</p> <p>[Now, substantially, all the evidence in the case upon the question of his age is to the effect that he was over twenty-one years of age at the time of his death, and I say to you that the power of attorney which speaks of the deceased as a minor child is not necessarily in contradiction of the evidence that has thus been given, because it has been shown to the court that in Austria, where this power of attorney was executed, the law is that a son remains a minor until he is twenty-four years of age; and as this power of attorney was executed in Austria, though it was written in America, there is no essential or necessary contradiction between the power of attorney and the evidence in the case that he was twenty-one years of age and more at the time of the accident.] (18)</p> <p>[How, the evidence in the case on that subject is this. The aunt, with whom he lived, has testified that his twenty-first birthday occurred on the 24th of June, 1912; outside .of that his employers got some information, wherever it might have been from, iii the course of their duties in reporting this accident, and reported his age at twenty-two, and that is some evidence, because it is not an uncommon thing for employers to have records of the ages of employees, and in fact the law requires them to have records of the ages of employees under certain ages, in connection with certain employments, so the fact that the employer reported this young man to have been' twenty-two at the time of his death, and that report being made in pursuance of a statutory requirement, is some evidence of his age, and, therefore, I say to you, that, under all the evidence in this case, there is no necessarily contradictory evidence of the fact that he was twenty-two years of age and over at the time of the accident.] (19)</p>

<p>Negligence — Defective road — Street railway— Contributory negligence — Motorcycle.</p> <p>Where a street railway company maintains a road across its own property leading from a public highway to an amusement park, it is bound to keep such road in a reasonably safe condition for those who avail themselves of the company’s invitation to use it. If it permits a dangerous rut or hole to exist in the road for such a period of time as to affect the company with constructive notice, at least, of its existence, the company will be liable in damages for personal injuries to a woman who was thrown from a motorcycle by reason of such rut.</p> <p>In such a case where it appears that the plaintiff was riding behind her husband at night, and that the husband, who was a competent person to operate the machine, was blinded by the lights of an approaching automobile when the accident occurred, the plaintiff cannot be charged with contributory negligence as a matter of law, either because she was riding in an insecure place, or because she and her husband did not dismount; and this is the case although the husband testified that if he had not been blinded temporarily by the light of the automobile he would probably have seen the defect in the road, and could have avoided it.</p>

<p>Municipalities — Telegraph companies — Use of streets — Conduits —Police powers — Act of June 12,1918, P. L. 1/39.</p> <p>Municipal legislation compelling corporations using electric wires in the streets to place the same in conduits beneath the surface, is the exercise of police power, and is a reasonable regulation merely of the mode in which the companies may exercise their franchises.</p> <p>Under the Act of June 12, 1913, P. L. 489, which empowers cities of the third class to define by ordinance a reasonable district within which electric light wires, telephone and telegraph wires shall be placed under ground, “in conduits owned either by the municipality or by corporations owning such wires, or by corporations organized for the purpose of laying such conduits and letting space therein,” a city may compel a telegraph company to place its wires in conduits of another company owning and using such wires, although such conduits are not owned by the municipality, or by corporations organized for the purpose of laying conduits and letting space therein. The fact that the company owning the conduits is a West Virginia corporation is immaterial if it appears that it has a right to operate in Pennsylvania, and that it had obtained the municipal consent; and it is also immaterial that no provision was made in the ordinance for fixing the compensation of the company owning the conduit, inasmuch as such company has its remedy in the Public Service Commission and the courts.</p> <p>Authority in a municipality to require all wires carrying electricity to be placed under ground, does not impose the necessity on the city of including all such wires to be so located.</p> <p>A municipal regulation requiring electric wires to be placed under ground, which can be complied with without serious detriment to the instrumentalities of business, does not infringe on the powers of congress to regulate commerce, or on the exemption of the agencies of the Federal Government from State control.</p>

<p>. Negligence — Mines and mining — Mine foreman — Failure to provide supports — Act of June 9, 1911, P. L. 766.</p> <p>A mine owner is not liable for the negligent acts of a mine foreman committed in tbe discharge of duties imposed upon him by law and in and about those workings over which he exercises supervision.</p> <p>In an action to recover damages for the death of a miner killed by a fall of slate from the roof of defendant’s mine, where the declaration charges that the accident was caused by the neglect of the defendant to provide a sufficient supply of posts to hold up the roof, no recovery can be had, where there is no evidence that the mine foreman ever ordered from the superintendent any mine props that were not promptly furnished, or that any miner in any way made a complaint to the superintendent, or brought to his knowledge either in the manner prescribed by the rules of the mine, or otherwise, that there was any shortage of props or timbers.</p> <p>In such a case the mine owner is protected by the provisions of Art. Ill, and Art. IY, of the Act of June 9, 1911, P. L. 7S6, which impose upon the mine foreman the duty of directing and seeing “that every working place is properly secured by props or timbers,” and of ordering the mine superintendent “to keep on hand at each mine at all times a sufficient quantity of materials and supplies required to preserve the health and safety of the employees.”</p>

<p>Appeal, No. 132, April T., 1917, by defendant, from order of C. P. Butler Co., June T., 1916, No. 48, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert Harvey v. American Natural Gas Co.</p> <p>Assumpsit for rental .under a gas lease.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>In addition to the facts stated in the opinion of the Superior Court it appeared that Philip Snyder died on July 3, 1906.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Assault and battery — School teachei — Cruel punishment — Misdemeanor—Act of June 11, 1879, P. L. IJfZ — Justice of the peace.</p> <p>A justice of the peace has no jurisdiction summarily to convict a school teacher charged with “unnecessary cruel punishment” of a pupil.</p> <p>So much of the Act of June 11, 1819, P. L. 142, entitled “An act to protect children from neglect and cruelty and relating to their employment, protection and adoption,” as may he applicable to the case of a teacher who unreasonably punishes a pupil, is a reenactment of the existing law, which from the foundation of the Commonwealth has declared the offense to be a misdemeanor triable before a jury of twelve.</p>

<p>Road law — Paving—City of the third class — Assessments'against owners — Act of June 27,1918, P. L. 568.</p> <p>The action of a city of the third class under the Act of June 27, 1913, P. L. 568, in paving certain streets at its sole cost- and expense, will not prevent it from subsequently providing for the paving of other streets by assessments against abutting owners by the foot front rule. The Act of 1913 does not materially change the law as it existed under Section 10 of the Act of Máy 23, 1889,' P. L. 288, as amended by the Act of May 16,1901, P. L. 224, under which acts it was held that when a municipality adopted one system of payment for certain streets, it was not prohibited from adopting another system for different streets.</p> <p>A municipality cannot legislate so as to deprive itself, or future councils of the corporate authority granted by the legislature to enact measures for the benefit of the municipality, the levying of taxes, or the improvement of other streets as their judgment dictate. If a gross abuse of discretion is attempted to be perpetrated, owners should move to determine such question before the city has caused to be spent a large amount of money on the faith of ordinances providing for an improvement. One cannot stand idly by until streets are paved and then assert that there has been a gross abuse of discrimination.</p> <p>A city may properly discriminate between different localities and different streets without abuse of discretion, and without impaling Section 10 of the Act of June 27, 1913, P. L. 568, on the prohibition contained in Article 9, See. 1, of the Constitution.</p> <p>Constitutional law — Title of act — Road law — Act of June 27, 1918, P. L. 568.</p> <p>The Act of June 27, 1913, P. L. 568, entitled “An act providing for the incorporation, regulation and government of cities of the third class, etc.,” is sufficient in its title, and does not violate Article 3, Sec. 3, of the Constitution of Pennsylvania.</p> <p>Road law — Improvement "bonds — Assessments—Lien—Notice— Municipal lien.</p> <p>Where improvement bonds are issued to a contractor for paving a street, and the bonds provide that they shall rest upon and be payable out of assessments and from no other fund, and a lien is filed by the city and suit brought in the name of the city, the abutting owner cannot defend on the ground that he was not given notice as provided by the Act of June 4, 1901, P. L. 364, as amended by the Act of March 19, 1903, P. L. 41, or on the ground that the claim was not filed to the use of the eontractor.</p> <p>When the cost and expenses of paving a street are assessed against abutting owners, there must be an equitable reduction for the frontage of lots which from “their peculiar or pointed shape, an assessment for full frontage would be inequitable,” as provided by Section 10 of the Act of June 27, 1913, P. L. 568. The ordinances authorizing the improvement need not contain this clause of the act, but the act must be followed when the assessment is made, and if it is not complied with the owner does not lose his right to contest the amount of the assessment.</p>

<p>Mines and mining — Royalties—Contract—Coal lease — Extension of lease — New lease.</p> <p>Where an owner of all of the stock of a coal mining company which had a five years’ lease on certain coal property, agrees in writing to transfer all of the stock to purchasers in consideration of a payment to him of royalties of seven cents per ton on all coal mined under the lease, the seller of the stock will not be entitled to recover royalties after the expiration of the date of such lease, where it appears that the lessor had refused to renew the lease, that a new lease was made under different terms, and that the new lease was not intended to be an extension of the old lease. In such a case it is immaterial that the lessor had executed a paper purporting to be an agreement to extend the first lease for a further period of five years if it appears that such paper was found among the documents of the lessor, was not attached to the lease, and that it was never known to the lessee company, or the purchasers of the stock, until the seller produced it in an equity suit to compel an accounting for royalties under the second lease.</p>

<p>Equity — Injunction—Removal of building by mortgagor — Costs. A decree of a court of equity imposing costs upon the defendant in a decree dissolving a preliminary injunction and dismissing a bill, will be sustained, where it appears that the bill was filed by a mortgagee to restrain the mortgagor from removing a building from the mortgaged premises; that after a preliminary injunction had been granted the bill was taken pro eonfesso; that upon further consideration of the bill, after the decree pro eonfesso had been entered, the mortgagor admitted that he intended to remove the house; and that subsequently he paid the mortgage debt and it was duly satisfied of record. In such a case the only question that can be considered on the appeal is the disposition of the costs, and these are within the sound discretion of the court below. The fact that the injunction affidavits on which the preliminary injunction wa9 awarded, were not in compliance with the equity rules, will not be considered by the appellate court.</p>

<p>Appeal, No. 177, April T., 1917, by defendant, from decree of O. P. Beaver Co., March T., 1917, No. 5, awarding an' injunction in case of Rochester Building and Loan Association v. Beaver Valley Water Company.</p> <p>Bill in equity for an injunction. Before Baldwin, P. J.</p> <p>From the record it appeared that on December 9,1916, plaintiff purchased at sheriff’s sale a property owned by Frank E. Mathews, from which the water service had been cut off because of failure of Mathews to pay a delinquent water rent amounting to $41. Plaintiff requested a renewal of the service, and tendered to the water company the service connection charge of $1, and offered to enter into the usual contract. The company refused to make the connection until the delinquent water rent was paid. On January 23, 1917, the court entered a mandatory preliminary injunction requiring renewal of the water service. Other facts appear by the opinion of the Superior Court.</p> <p>Error assigned was decree refusing to dissolve the preliminary injunction.</p>

<p>Ejectment — Lands within writ — Execution—Parties — Husband and wife.</p> <p>Where an action of ejectment has been successfully prosecuted against a husband for a strip of land lying between the plaintiff’s land and that of the wife of the defendant, and the verdict is amended without notice to the wife so as to call for the wife’s line as a boundary, instead of a borough line, mentioned in the writ, and thereafter the wife buys an outstanding interest in the land involved in the ejectment with full knowledge of the ejectment, the wife cannot object to a writ of habere facias possessionem issuing against her as well as her husband. In such a case the plaintiff is entitled to all the land included in the writ of ejectment. If some of the wife’s own land is included she has her remedy by an ejectment against the plaintiff. If the outstanding title which she bought in, is good, she must establish it in another proceeding.</p> <p>The fact that a small coal house was built on the land covered hy the writ and occupied by the wife, is immaterial, inasmuch as such occupancy under her husband’s title cannot be tied to her after-acquired title so that it might be said that she was in possession of the land before the institution of the ejectment.</p> <p>A judgment in ejectment does not bind one who does not hold possession under the defendant and is not a party to the judgment.</p>

<p>Appeal, No. 113, April T., 1917, by plaintiff, from order of C. P. Butler Co., Sept. T., 1916, No. 4, discharging rule to bring ejectment in case of Clara W. Russell v. Alexander B. McKinney.</p>

Appeal, No. 18, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., April T., 1915, No. 943, on verdict for plaintiff in case of M. B. Spaulding v. William M. Justice, Renting Agent for German Savings and Deposit Bank and A. W. Ackerman. Replevin for household goods. Before Reid, J. Prom the record it appeared that William M. Justice, renting agent, had levied upon the plaintiff’s household goods for rent.

Appeals, Nos. 108 and 109, April T., 1917, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1914, No. 672, on verdict for plaintiffs in case of George Ward, a minor, by his father and next friend, John Ward, and John Ward v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries. Before Swearingen, J. At the trial it appeared that the plaintiff was injured on April 1, 1913, while riding on the bumper of one of defendant’s cars.

Appeal, No. 167, April T., 1917, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 1275, on verdict for plaintiffs in case of George Telinko and Maria Telinko v. Pittsburgh Coal Company. Trespass to recover damages for death of plaintiffs’ son. Before Reid, J. At the trial it appeared that Stephen Telinko, a son of the plaintiffs was killed on February 22, 1913, by a fall of the roof of a chamber in defendant’s mine.

Appeal, No. 37, April T., 1917, by plaintiff, from order of C. P. Allegheny Co., July T., 1915, No. 399, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Bellevue Realty Savings & Trust Co. v. Monongakela River Consolidated Coal & Coke Company. Assumpsit on coupons. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 187, April T., 1917, by plaintiff, from order of C. P. Allegheny Co., Jan. T. 1914, No. 736, refusing judgment against garnishee on answers in case of Benedict & Eberle Company v. Charles Hollman. Rule for judgment on answers.

Appeal, No. 20, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1912, No. 2452, on verdict for defendant in case of Swissvale Borough v. Thomas Dickson Heirs with Notice to Kobert E. Dickson et al. Scire facias sur municipal lien. At the trial the jury under instructions from the court rendered a verdict for defendants.

Appeal, No. 114, April T., 1917, by plaintiff, from order of O. P. Allegheny Co., Jan. T., 1916, No. 845, discharging rule for judgment for want of a sufficient affidavit of defense in case of John C. Hager ling v. Pension Mutual Life Insurance Co., Trustee of American Life & Annuity Society now Pension Life Society.

Appeal, No. 99, Oct. T., 1916, by Franklin Home for the Reformation of Inebriates, formerly called the Franklin Reformatory Home, from decree of C. 0. Philadelphia Co., Oct. T., 1890, Ho. 182, dismissing exceptions to adjudication in Estate of Robert J. Wright, deceased. Exceptions to adjudication.

<p>Constitutional law — Special legislation — Creation of liens — Attorney’s lien on client’s came of action — Act of May 6,1916, P. L. 261 — Constitution of Pennsylvania, Art. Ill, Sec. 7.</p> <p>The Act of May 6, 1915, P. L. 261, which gives to an attorney of record “from the commencement of any action or proceeding either at law, in equity or otherwise,” a lien for his compensation upon his client’s cause of action, and which authorizes the court in which the cause is brought “to determine and enforce the lien,” is unconstitutional, as violating Article III, Section 7 of the Constitution which declares that “the general assembly shall not pass any local or special law authorizing the creation, extension, or impairing of liens......or providing or changing methods for the collection of debts.</p> <p>Such an act involves an artificial and arbitrary classification of creditors in favor of attomeys-at-law who are attorneys of record in law suits or proceedings.</p>

<p>Boad law — Change of grade — Agreement as to issue to he tried on appeal from award of viewers.</p> <p>Where, on an appeal from an award of viewers in a change of grade case, the property owner, as plaintiff, and the borough, as defendant, enter into a written agreement signed hy counsel and approved hy the court for an issue to he framed to determine “what damages, if any, had been suffered” by the plaintiff hy the change of grade, the borough cannot claim that the plaintiff was required under the issue tried to show that the borough had duly passed an ordinance which had been approved by the burgess, duly advertised, and recorded in the ordinance hook and there properly attested.</p> <p>On the trial of such an issue the plaintiff may show that the change of the grade in question caused water to accumulate in front of his property to an extent that at times] seriously interfered with access to the property.</p>

<p>Appeal, No. 34, April T., 1917, by defendant, from judgment of C. P. Mercer Co., April T., 1915, No. 30, on verdict for plaintiff in case of H. W. Allison v. E. M. Bigelow, State Highway Commissioner of Pennsylvania.</p> <p>Issue certified from the Court of Quarter Sessions of Mercer County to the Court of Common Pleas to determine the amount of damages sustained by the plaintiff by reason of a portion of his property being appropriated by the State highway commissioner, under Section 16 of the Act of May 31, 1911, P. L. 468. Before A. W. Williams, P. J.</p> <p>At the trial it appeared that the Commonwealth took a portion of the land of the plaintiff in the location of a State road, and that in doing so it cut off from the main portion of his farm and its buildings a considerable acreage of watered land through which he would have to drive his live stock across the State road.</p> <p>The defendant presented, inter alia, the following point: “18. There can be no recovery in this case for the inconvenience to which plaintiff may be put in moving his cattle from one portion of his land to another,- over this highway.” Answer. Not affirmed. (22)</p> <p>“20. No recovery for damages may be had against the Commonwealth of Pennsylvania, under Section 16 of the Act of May 31,1911, except where land is taken.</p> <p>Answer: Not affirmed.</p> <p>Verdict and judgment for plaintiff for $1,000. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and (22, 24) above instructions quoting them.</p>

<p>Appeal, No. 136, April T., 1917, by Thomas G. Strang, Executor of Ann Honeyman Strang, from decree of O. 0. Allegheny Co., Sept. T., 1916, No. 50, dismissing exceptions to adjudication in Estate of Ann Honeyman Strang.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that on November 2, 1908, James Strang and Ann Strang, his wife, loaned to one Benjamin Hallam the sum of twelve hundred dollars for three years with interest at six per cent, per annum, taking as security therefor a bond and mortgage, from said Hallam to James Strang and Ann Strang (his wife) in that amount. James Strang died on January 18,1912, at which time two hundred dollars of said loan had been repaid. His wife survived him, dying on April-12, 1915. Both left wills appointing their son, Thomas G. Strang, executor. Thomas, who was an epileptic, lived with his father and mother and supported them. After the death of James Strang, the Hallam mortgage was paid off, and Mrs. Strang gave to her son a check for $1,015.65 which was the balance received on account of the mortgage. The understanding between them was that one-half the amount of the check was to be the son’s own property, and the other half was to be used to pay the debts and funeral expenses of the mother, and if anything remained it was to be divided among the heirs. Mr. and Mrs. Strang had four sons other than Thomas, all of whom had separate homes of their own. The testimony relating to the gift is summarized in the opinion of the Superior Court. The son, Thomas D. Strang, was surcharged as executor of his mother with the full amount of the money received on account of the mortgage.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Bounties — Noxious animals — Definition of bounty — Words and :phrases — Statutes—Repeal—Acts of April 10, 1907, P. L. 60, and April 15, 1915, P. L. 186.</p> <p>A bounty has been defined as signifying a sum of money paid, or a premium offered to encourage or promote an object, or procure a particular act or thing to be done. It is not a mere gratuity but has every element of a contract when the services prescribed within the act are performed.</p> <p>Where noxious animals for the killing of which a bounty was offered by the Act of April 10, 1907, P. L. 60, have been actually killed, the bounty has been earned and a contractual right established, which cannot be taken away before the bounty is paid, by the repeal of the Act of Í907, by the Act of April 15, 1915, P. L. 126. Such a contractual right is protected by the constitutional provision forbidding legislation which violates the obligation of contracts.</p> <p>There is nothing in the Act of April 15, 1915, P. L. 126, which substantially reenacted the portions of the earlier act relating to bounties which indicates an intention of the legislature to divest rights which had accrued under the earlier act.</p>

<p>Brokers — Commissioners—Agency—Case for jury.</p> <p>In an action to recover commissions on the sale of a steamboat, an implied obligation to pay a commission is established by proof that plaintiff, telegraphed to defendants, stating desire to purchase a steamboat of given dimensions, asking them if they had anything to offer, and stating that their commission will be five per cent, on the purchase-price; that defendants telegraphed in reply “Can offer boat for your inspection upon your arrival here,” and that plaintiff wrote that their agent, naming him, would call upon defendants “and if you have anything to offer, and sale should go through, we would like of course to be protected on five per cent, commissions.”</p> <p>In such .a case where the plaintiff’s agent accompanied by another person calls upon defendants, and the agent states that the other person was working with him, and it appears that the sale was actually made to the other person in the agent’s absence, the plaintiff is entitled to have the question submitted to the jury, a3 to whether the sale was made by him, if it appears that the agent named in the letter was notified of the sale, was present when the deal was finally consummated and took possession of the boat.</p> <p>To entitle a broker to recover commissions for the sale of property, he must establish that he was the procuring cause of the sale, according to his contract. This is usually a question of fact for the jury.</p>

<p>Game laws — Shipment of game — Intra county shipment — Act of April 21, 1915, P. L. 1%6 — Punctuation.of statute.</p> <p>A person who ships game by parcel post from one place to another in the same county does not violate Section 8 of the Act of April 21, 1915, P. L. 146.</p> <p>In construing the Act of April 21, 1915, See. 8, P. L. 146, the court will not take into consideration the semicolon after the word “Commonwealth,” as printed in the Pamphlet Laws.</p> <p>Punctuation is not conclusive in the construction of a statute.</p>

<p>Cemetery companies — Care of lots — By-lavis- — Rights of lot holders.</p> <p>Where a cemetery company conveys by deed a lot in its cemetery with “the full, free and absolute right of sepulture and the exclusive use, occupation and possession for that purpose, and for all objects and purposes incident into and upon” such lot, subject to the charter of the company and its by-laws then existing, or thereafter to be enacted, a by-law enacted many years after the date of such deed, is unreasonable and void, if it provides that no person shall be permitted to enter the cemetery “for hire for the purpose of cutting grass, planting flowers, sodding and grading at the instance and direction of any lot owner.”</p> <p>The enforcement of such a by-law will be restrained by injunction; but in entering the decree for an injunction, the court will not include tbe right of the lot owner to grade at will. Cedar Hill Cemetery Co. v. Lees, 22 Pa. Superior Ct. 405, distinguished.</p>

<p>Every man has the right to the natural use and enjoyment of his own property, and if whilst lawfully in such use and enjoyment without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is damnum absque injuria.</p> <p>Discharge of mine water, either by drift or from a lower level by a shaft, does not impose liability for injury to a neighbor’s property if the same is done without negligence or malice.</p> <p>In an action to recover damages for injuries to property caused by the flow of mine water, the burden of proof is on the defendant to show that the natural use of his property which caused the injury was unavoidable and could not have been prevented, except by an expenditure which would be substantially the deprivation of the use of one’s property. If the defendant meets this burden, the plaintiff to recover must show that there was negligence or malice.</p> <p>■ In an action to recover damages for injuries to land, it appeared that the plaintiff was the owner of a farm of twenty-four acres. Immediately adjoining his farm, and located on a higher level, the defendant on his property opened a coal operation twenty-five feet from the plaintiff’s land. This was done by a drift in a westerly direction, with the dip of the coal. The water percolating through the .coal accumulated in the interior of the mine. The drift or pit opening was higher than this water level and prevented its flow by gravity out of the pit mouth. A vein of fire-clay lay immediately below the coal and formed a water tight basin, which prevented the water in its natural flow from further percolation to the surface. To allow drainage, the defendant dug a small ditch along side of his mine track. This permitted the water to flow by gravity from the interior of the mine to the .surface on his ground, thence to the' plaintiff’s ground, and being acidulous it destroyed the vegetation on about a half an acre of plaintiff’s ground. There was no actual evidence that the injury could have been avoided by due care or expenditure, but the plaintiff raised no question as to the sufficiency of the evidence, and tried the case on the theory that such evidence was present. There was no proof of malice or negligence. Held, that a judgment on a verdict for the defendant should be sustained.</p> <p>Mines and mining — Diversion of water — Injuries to land — Waters — Negligence—Theory on which case is tried.</p> <p>After a trial judge has submitted a question to a jury from the standpoint from which both parties to the issue manifestly have tried it, it is not consistent with good faith to the court, that the one against whom the verdict is rendered should be permitted on appeal to question the correctness of the submission, except in cases where manifest injustice results from it.</p>

<p>Appeal, No. 115, Oct. T., 1916, by defendant, from judgment of C. P. Huntingdon Co., Dec. T., 1914, No. 27, on verdict for plaintiffs in case of Mary Rinker and D. S. Rinker, her husband, v. Colonial Iron Company.</p> <p>Trespass to recover damages for personal injuries. Before Euppel, P. J., specially presiding.</p> <p>At the trial it appeared that on June 18, 1914, the plaintiff, Mary Rinker, was struck and injured by a stone which had been projected from the defendant’s quarry on to a neighboring property where Mrs. Rinker was at the time she was injured. The court admitted under objection and exception, evidence to the effect that for several years prior to the accident stones and slivers of stones had been projected from the quarry onto adjoining properties. (4, 5, 6)</p> <p>The court charged in part as follows:</p> <p>“In this case, the plaintiff Mary Rinker would be entitled to recover for the pain and suffering she has endured up to this time, or which she is likely to suffer in the future, and also whether the injury be permanent or not, or if it be of such a character that it is only likely to last a year or two, you will consider that length of time, and award such amount as you think right for such pain and suffering, bearing in mind all the circumstances in this connection, the age, health and surroundings of the plaintiff herself and her husband. It would be in his case loss of the earning power of his wife. How much damage he has sustained by reason of this, injury, and you will allow just such sum as will compensate him for his loss. As to the question of damages it is of such a character that it cannot be established by the testimony of witnesses as most facts can in the trial of cases. Neither party could call witnesses to prove what damages should be allowed, except on the question of the ability of the wife to work, probably some testimony might have been introduced by the plaintiff and by the other party, but as to the pain and suffering no witness could be called, no one could tell. It is a matter probably largely of conjecture and you will have to arrive at a conclusion as best you can, if you can find in favor of the plaintiff.”</p> <p>Verdict and judgment for Mary Rinker for $700 and for D. S. Rinker for $300. Defendant took one appeal.</p> <p>Errors assigned were (4, 5, 6) rulings on evidence quoting the bill of exceptions and (1) portion of charge as above quoting it.</p>

<p>Wills — Construction,—Trust and tmistees — Income—Grandchildren sharing in income.</p> <p>Testator in his will created a trust in favor of his wife for life, and after her death in favor of his children, and after the death of the survivor of them, the estate to go to his grandchildren per stiipes. He further directed as follows: “Should any of my said children die unmarried and without lawful issue then the income share of such child deceased shall go to my remaining children for life and my grandchildren shall take such share of said deceased children as their deceased parent would be entitled to (the intention of this my last will being that my wife enjoy the income of my estate during’ her life, that my children shall enjoy said income after my wife’s death for and during their lives and that my grandchildren shall get the corpus of the estate per stirpes and not per capita).” Held, that the children of a deceased child were entitled to share in the income until the termination of the trust.</p>

<p>Liquor laws — Necessity—Hotel.</p> <p>A finding by the license court that a ijlaee is necessary as a hotel, does not involve that it is necessary as a drinking place, and a refusal to grant a retail liquor license for such a place will not he reversed on appeal.</p>

<p>Criminal law — Indictment—Quashing indictment — Assault.</p> <p>Where an information charges that the defendant assaulted the prosecutor with an open knife in his hand, and the defendant after hearing is held to bail, and subsequently an indictment in regular form, and sufficient to sustain a conviction of simple assault, is found, it is reversible error for the court to quash the indictment; and especially is this so if the record shows that between the time the defendant had his hearing and was held to bail, and the date when he was called for trial, no application was made by him to be discharged from custody on the ground that he had been illegally committed or held to bail.</p>

Appeal, No. 30, April T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1914, No. 2337, for defendant n. o. v. in case of James Alguire v. Oswald Keller and Edward P. Gerber. Scire facias sur mechanic’s lien for excavation work. Before Davis, J. At the trial the jury returned a verdict for the plaintiff for $266.87. The court subsequently entered judgment for defendant n. o. v., on the ground that no building had been erected to which a lien could attach.

Appeal, No. 72, April T., 1917, by Board of Township Commissioners of Mifflin Township, from .order, of Q. S. Allegheny Co., Jan. Sessions, 1914, No. 1, discharging rule to quash proceedings in the Matter of a Public Eoad in Mifflin Township. Eule to quash proceedings to lay out and open a public road.

Appeal, No. 33, April T., 1917, by defendants, from judgment of C. P. Fayette Co., June T., 1914, No. 421, on verdict for plaintiff in case of Alplionso Dagostino v. Grace Rainey Rogers et al. Trespass to recover damages for injuries to plaintiff’s store alleged to have been caused by the operation of a company store.

Appeal, No. 68, April T., 1917, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1916, No. 190, on verdict for plaintiff in case of Wilmore Coal Co. v. Russell Holsopple. Trespass to recover damages for the alleged wrongful cutting of timber. Before Bailey, P. J., specially presiding. The plaintiff in its statement of claim alleged that the value of the timber cut was $125.

Appeal, No. 136, Oct. T., 1916, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1914, No. 242, for defendant non obstante veredicto in case of George J. Bready v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries, and injuries to an automobile. Before Swartz, P. J. At the trial the jury returned a verdict for $217.75. Subsequently the court entered judgment for defendant non obstante veredicto.

Appeal, No. 60, Oct. T., 1916, by defendant, from judgment of O. P. Chester Co., Jan. T., 1915, No. 49, on verdict for plaintiff in case of Harry F. Taylor, Trustee in Bankruptcy for Harry Klingerman, v. Liverpool & London & Globe Insurance Co., Ltd. Assumpsit on an alleged contract of fire insurance. Before Johnson, P. J., specially presiding. The opinion of the Superior Court states tlie case. Verdict and judgment for plaintiff for $512.83. Defendant appealed.

Appeal, No. 164, April T., 1917, by plaintiff, from order of C. P. Erie Co., Sept. T., 1916, No. 259, discharging rule for judgment for want of a sufficient affidavit of defense in case of David W. Mitchell v. George W. Minnig. Assumpsit for hand money. Rule for judgment for want of a sufficient affidavit of defense.

Appeal, No. 211, Oct. T., 1916, by defendant, from judgment of C. P. No. 1, Philadelphia Oo., June T., 1913, No. 2896, on verdict for plaintiff in case of John P. Judge v. West Philadelphia Title and Trust Company. . Assumpsit to recover the amount of two checks alleged to have been wrongfully charged to the plaintiff’s account as a depositor.

Appeal, No. 192, April T., 1917, by Henry W. Scott et al., from order of Q. S. Washington Co., Nov. T., 1916, No. 179, sustaining demurrer to a petition to free a bridge in the Matter of the Monessen-Charleroi Bridge. Demurrer to petition to free a bridge.

Appeal, No. 331, Oct. T., 1916, by defendant, from order of O. P. No. 5, Philadelphia Co., June T., 1916, No-. 17, making absolute rule for alimony, expenses and counsel fees, in case of Alberta H. Lynn v. J acob H. Lynn. Libel for divorce a mensa et tlioro under the Act of February 26,1817, 6 Sm. L. 405. The libel charged cruel and barbarous treatment. It concluded as follows: 7.

Appeal, No. 134, April'T., 1917, by defendant, from judgment of O. P. Allegheny Co., April T., 1916, No. 1213, on verdict for plaintiff in case of Carl Watson & Lottie Watson v. Highland Grove Traction Company. Trespass to recover damages for death of child five years old. ■ Before Carnahan, J. The circumstances of the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiff for $645.50. Defendant appealed.

Appeal, No. 1, March T., 1917, by defendant, from judgment of C. P. Luzerne Co., April T., 1913, No. 624, on verdict for plaintiff in case of Luzerne County National Bank v. E. Lowenstein. Assumpsit on a promissory note by holder against endorsee. There were two trials of the case.

<p>Appeal, No. 46, Oct. T, 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., July T., 1916, No. 354, on verdict for plaintiff in case of Clarence B. Fow v. Adams Express Company.</p> <p>Trespass to recover damages for injuries to an automobile. Before Knowles, J.</p> <p>The circumstances of the accident are stated in the opinion of the Superior Court.</p> <p>Verdict and judgment for $95.30. Defendant appealed.</p> <p>Error assigned was in overruling motion for judgment n. o. y.</p>

Appeal, No. 79, April T., 1917, by plaintiffs, from judgment of C. P. Westmoreland Co., Feb. T., 1916, No. 220, for defendants non obstante veredicto in case of Thomas Donaldson and Mary, his wife, v. Charles H. Fellabaum, and Sarah, his wife. Ejectment for land in Sewickley Township. The facts are stated in the opinion of the Superior Court. Error assigned wras in entering judgment for defendants n. o. v.

<p>Corporations — Public Service Commission — Approval of charter —Electric companies — Combination of companies.</p> <p>The discretion of the Public Service Commission in approving the charter of an electric light and power company, will not he reviewed and its action reversed, where it appears that the new company was organized as a combination of three older companies, intended to take up the service of such companies in their respective districts, and not in new territory, and the only parties objecting were other electric companies all created at a later date than the three companies merged.</p>

<p>Practice, O. P. — Pleading — “Demurrer” — Effect of final judgment — Self sustaining statement of claim.</p> <p>"Where in an action of assumpsit, the defendant files a “demurrer” to an amended statement of claim, and at the trial his counsel states to the court that he does not deem the amended statement sufficient, but that he was not going to insist upon the “demurrer,” and asks the court to pass upon that question when the matter was finally passed upon, and the court tries the case on the merits and enters final judgment for plaintiff, the final judgment may be considered, by implication, as overruling the “demurx-er.”</p> <p>The rule that the statement of claim must be self sustaining applies only where a judgment is entered upoxx the pleadings, and not where it is based upon a finding of fact after trial upon the xnerits, for then the pleadings may be moulded to conform to the finding. ‘</p>

Appeal, No. 86, Oct. T., 1917, by defendant, from judgment of O. P. No. 1, Philadelphia Co., June T., 1907, No. 529, on verdict for plaintiffs in case of John J. Short and Joseph A. Short, trading as John J. Short and Brother, v. Philadelphia Rapid Transit Co. Trespass to recover damages for injuries to a carriage. Before Atjdenried, P. J. ' . The facts relating to the accident are stated in the opinion of the Superior Court. Verdict and judgment for plaintiffs for $150.

<p>Brokers — Beal estate brokers — Tender of performance — Commissions.</p> <p>In an action by a real estate broker to recover commissions for placing a mortgage, it is sufficient for the plaintiff to show a request by the defendant for the performance of the service, and a tender of performance by himself. It is no part of the plaintiff’s case to prove complete performance, if he shows that he procured a person who was able and willing to lend.</p>

<p>Appeal, No. 112, Oct. T., 1917, by defendant, from order of C. P. No. 4, Philadelphia Co., Sept. T., 1916, No. 237, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Walter R. Eastburn v. Daniel F. Grove and Budd W. Rulon.</p> <p>Assumpsit to recover back money paid under a stock subscription.</p> <p>At the trial it appeared that the plaintiff signed a stock subscription agreement incident to the organization of a proposed bank to be known as the “Valley Forge Bank.” The terms of the agreement are quoted in the opinion of the Superior Court. Plaintiff paid $675 on account of his subscription. The proposed incorporation failed, .and plaintiff did not receive his. stock. The defense was that the whole sum paid in by plaintiff and others had been consumed in expenses.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 18, Oct. T., 1917, by Irving N. Wood, from judgment of Municipal ■ Court Philadelphia Co., April T., 1916, No-. 214, on verdict for plaintiff in case' of Robert L. Hitchins v. Ellwóod A. Wilson and Irving N. Wood.</p> <p>Trespass to recover damages for personal injuries. Before Gorman, J.</p> <p>The facts are stated in the opinion of the Superior Court. •</p> <p>Verdict and judgment for plaintiff against defendants for $332.25. Irving N. Wood appealed.</p> <p>Error assigned was in refusing Irving N. Wood’s request for binding instructions for defendants.</p>

<p>Corporations — Two companies of same name — Liability.</p> <p>Where a corporation of Pennsylvania doing a general machine and repair business, and a New Jersey corporation organized to conduct a general garage business, have substantially the same stockholders, with the same president, officers, bank account, bookkeeping and employees and doing business under the same roof, the Pennsylvania company may be held liable for the value of an automobile delivered to the New Jersey company for repair and never returned, where it appears that the president of the two companies promised to return it, and there is evidence that the Pennsylvania company sent a bill for repairs to the plaintiff.</p>

<p>Mines and mining — Oil and gas lease — Drilling well through coal — Relative rights of owners — Equity.</p> <p>Where coal under land is sold with right to mine out all the coal without liability for damages to the surface, and the owner of the surface subsequently executes an oil and gas lease to another person, the lessee has a right to drill a well through the coal to reach the oil and gas. It is his duty, however, to make a proper effort to agree with the owner of the coal as to the site of the proposed well. If he makes such an effort, without success, he may file a bill in equity, and the court may then in the exercise of a sound discretion, determine the location and the fair terms upon which the well may be drilled.</p> <p>If, in such a case, a bill has been filed, and it appears that the owner of the coal, through all his dealings with the owner of the lease had stood upon his supposed right of preventing any drilling whatever, and the owner of the lease has made some, but not an adequate effort to reach an agreement, and the court below dismisses the bill, the appellate court will direct that the bill be reinstated, with directions that the plaintiff shall make an effort to reach an agreement upon fair terms within a time staled but that if he does not succeed, the court shall from the testimony already taken determine where the well may be located, and the terms upon which it may be drilled.</p>

<p>Telegraph and telephone companies — Borough licensé — Polés and wires — Inspection—Unreasonable rate..</p> <p>A provision in an ordinance requiring -an inspection of poles and wires of a telephone company three times weekly in a borough ás the basis on which to fix a license fee is such aii abuse of discretion as to call for the intervention of the courts.</p> <p>Where an ordinance of a borough fixes' a fee of fifty cents per pole and fifty cents per mile of wire to be paid by a telephone company, and requires three weekly inspections of the poles and wires the court will reduce the fee to twenty cents per pole, and will require that the poles and wires need not be inspected regularly more, than two or three times a year, with a special inspection after each severe wind, rain or snow storm.</p> <p>The mere fact that the ordinance imposes certain duties upon the policemen does not enable the borough to collect from the telephone company the amount designated by the ordinance.</p>

<p>Appeal, No. 197, Qct. T., 1916, by plaintiff, from judgment of O. P. Northampton Co., June T., 1914, No. 35, on verdict for defendant in case of Morris Brewer v. Christian F. Meyers, Owner, and Edwin O. Kunsman.</p> <p>Scire facias sur mechanic’s lien.</p> <p>Brodhead, J., charged as follows:</p> <p>The plaintiff is Morris Brewer and he performed certain work and furnished certain material for the building of a double house here in Easton for Christian F. Meyers, the defendant. Morris Brewer was a subcontractor and, under the law of Pennsylvania, he had the right and did file what is known as a mechanic’s lien against one-half of this double house which he was building, the amount of the lien being $637.50/ upon which he issued a sci. fa., and if there was nothing else in this case, he would be entitled to recover the amount of his mechanic’s lien, to wit, $637.50, with interest from January 12,1914. If that was all that there was in the case, why, of course, we would stop there and you would immediately return a verdict in favor of Morris Brewer for the amount of his mechanic’s lien. Now the amount is not in dispute, that is the amount of the lien. As I remember the evidence, it is not disputed that the work and labor done in and about this particular one-half of the house, the subject of this suit, does amount to $637.50, together with interest from January 12, 1914. So far, then, there is no dispute. But the defendant comes in and says, “Yes, that is all very well; but I have a release of liens wherein Morris Brewer signed his name under his seal, for a consideration, and he released his right to this mechanic’s lien against this house.” And they produce the release of liens, which, of course, must speak mutely for itself, and upon the face of it, in the body of the release, it appears to be a release in full for all right to file any kind of a mechanic’s lien. There, again, gentlemen, if we stop there, this release of liens, if it is Avhat it purports to be, and what the defendant claims it to be, of course, would be a full and complete defense to the entire claim of the plaintiff. But the case doesn’t stop there. Morris Brewer, in answer to that, says, “Yes, I signed that release, but at the time that I signed it there was a contemporaneous agreement and distinct understanding that this release wouldn’t be operative unless I received $600,” and that that agreement and understanding and condition was the understanding between the parties in interest, that that wasn’t only the understanding of Morris Brewer but it was the understanding of Edwin O. Runs man, Avho Avas the contractor Avith Meyers and at the time that this condition was made was acting as the agent for Meyers and, therefore, Meyers was bound by that understanding. That is the contention of the plaintiff. I am not stating that that is the actual fact; I am directing your attention to the issues. You must decide whether the facts warrant the conclusions arrived at by the plaintiff. But I do say, as a matter of law, that if you find that Mr. Brewer signed this release with that distinct understanding and agreement and that Christian Meyers was a party to that understanding and agreement and the minds of all the parties in interest met and it was distinctly understood that this release wouldn’t be operative unless the $600 was paid, why, then, of course, they are held to that and the release wouldn’t be operative under that state of facts. But in that connection, gentlemen, there are several things that you must determine: first, what was the precise, definite, condition that was agreed upon. If Morris Brewer signed this release upon the faith of a check which Kunsman gave him, upon the faith of Kunsman’s promise, alone, and Morins Brewer ran his chances that Kunsman’s check of $600 which was given him at the time this release was signed was good or that Kunsman would make it good and Morris Brewer relied upon that, alone, even though Kunsman failed to make good his check, yet this release, if it subsequently got into the hands of Mr. Meyers, honestly, and Meyers became the innocent holder for value of this release, then this release must stand. One important branch for you to determine, then, is, was Kunsman acting as the agent for Meyers, duly authorized so to act for Meyers? The theory of the plaintiff is, that Kunsman was acting as the agent for Meyers and was authorized to make any condition with Mr. Brewer that — or, he was authorized to make this condition in question, and that he was so authorized by Meyers. Was he? That is the important question for you to determine. Was Kunsman, the contractor of Meyers, when he got Mr. Brewer to sign this release, was he, Kunsman, the agent of Meyers? The burden of proof is upon the plaintiff to show that. The fact that Kunsman was the contractor of Meyers, alone, is not sufficient to establish that agency. On the contrary, the fact that Meyers entered into this original contract with Kunsman and Kunsman was the contractor to build a house for Meyers rather is antagonistic to the theory that Kunsman was his agent; there were two parties dealing at arms length'with each other, so that the fact that he was the contractor doesn’t at all establish the fact that he was his agent, you understand. But Meyers was within his right and power to specially, or otherwise, constitute Kunsman his agent to go and make this arrangement with Mr. Brewer. Did he do so? If there is sufficient evidence in the case, which you will remember and analyze, and from ivhich you can determine that Mr. Kunsman was Mr. Meyers’ agent, why, then the next thing for you to determine is, what was the precise condition and agreement entered into between Kunsman and Brewer at the time of the signing? If Kunsman ivas not Meyers’ agent, why, then it doesn’t make any difference, so far as Meyers is concerned, what arrangement they entered into, because Kunsman was then acting for himself. The defendant contends that Kunsman was not acting as Meyers’ agent but it was just the other ivay, that Kunsman was acting as Brewer’s agent and Brewer said, “I will sign this; I will take your check for $600 and you go to Meyers and you get the money and you can make your check good.” Of course, if Kunsman was acting as the agent for Brewer, then whatever talk they may have had, whatever agreement they may have made, wouldn’t bind Meyers, that you can readily see. So it -will be a very important element for you to consider whether or not, then, this release got into the hands of Meyers and Meyers obtained possession of it by due delivery, innocently and honestly; so that he became the innocent holder for value of this release. If he did, why then, of course, the release must speak for itself. If he did not, then you can find it subject to that condition. Passing that point, then, and assuming that you find that this release got into the hands of Meyers properly and that he held it for value and without any condition imposed upon him, the next question is, what is this, release, what does it release? The defendant says it releases everything; but the plaintiff contends that it does not release the plastering work. It comes down to the question of the intention of the parties at the time of the signing of the release. [If it was the intention of the parties in interest that the signature of Morris Brewer to this release meant, as apparently it says in the body of the release, that it should be a clean release of everything, of all liens of any kind, of any nature, then, of course, he must be bound by it, if that was the intention. If, however, it was the intention, and was so understood by all the parties, that when Morris Brewer signed upon that line that you will see upon the release marked “Bricks,” that that meant that he released for the bricks only, and that was the understanding and the intention, why then that signature would be limited to that extent and would release only for the bricks.] (6) Again, he signs on the next line, “Morris BreAver, Bricklayer,” and if it was the meaning and intention and the understanding of the parties that that would apply only to the work of bricklaying, why then that release Avould be limited to that extent. It is a circumstance proper for you to take into consideration, that this release was actually signed by Morris Brewer twice. Is that significant of anything? If, as suggested by the defendant, it is a release in full, then one signature is enough; why two? The suggestion for that is, that his signing twice means that the first signature is for bricks and the second signature is for the bricklaying, and that the absence of his signature for the plastering shows that he didn’t mean to release this lien for the plastering but only meant it to apply to bricks and bricklaying. You will recall, in that connection, the conversation held at Mr. Shawdy’s office, when all of the parties in interest in this action met; and if I recall the evidence correctly, one of the objections to this release was that Brewer hadn’t signed for the plastering work and that, therefore, they refused to pay any money at that time on it. That is a circumstance, if I state it correctly; but your recollection of this evidence must prevail, gentlemen. My recollection, as I said before, is not to be at all binding upon you as to the facts, and I am only trying to illustrate what the law is applicable to this case. I say, then, that the conversation at Mr. Shawdy’s office, where Mr. Shawdy, Mr. Meyers, Mr. Brewer and Mr. Kunsman were all present, seemed to contemplate that he should have signed for the plastering if it was to- be a complete release. That is a circumstance from which you may be able to come to the conclusion that this release, if it stands, is to be applied to the bricks and the bricklaying and not to the plastering. If you come to that conclusion by the train of circumstances which I have related and from the evidence and the testimony as you will remember it, then you, with propriety, will inquire, what did that plastering amount to? My recollection is, that the only evidence on that point was the evidence of Mr. Brewer; and he couldn’t give the exact amount, but he said that the plastering amounted to between $250 and $300. That is my recollection, but you will recall that perhaps better than I. If you find the facts that way and that he did not release the plastering but did release for the bricks and bricklaying, then the logical conclusion would be that the plaintiff would be entitled to a verdict for the amount of the plastering, unless you can find that, notwithstanding this release, payment has been made by the defendant. Now, the defendant suggests that he did pay, that he paid $455 to Mr. Brewer, and that that payment, was made by a check from Mr. Meyers for $500 to his contractor, Kunsman, and that Kunsman forwarded $455 ■ of that money to Mr. Brewer and that that $455 was payment upon this Meyers contract and that Meyers should get the credit of that $455; In that connection, gentlemen, the plaintiff comes back and says, “Why, no; that $455 wasn’t applied to the Meyers contract; Meyers didn’t send it to me; and when Kunsman sent it to me-he said that it should not be applied to the Meyers contract, but, quite the contrary, should be applied to an old note of Ms that I held.” Now, Mr. Kunsman swears that when he sent that $455 to Brewer, that his intention, and ids instruction to Brewer, was that that $455 should' be applied to that old note. Mr. Brewer swears that he received that check of $455 for that purpose, only, and in point of fact he did apply it only to the old note and not to the Meyers contract. The defendant, however, says, that Mr. Brewer telephoned to him and said that he got those $455, although the defendant said he understood it was $485, and that it was all O. K. and he had applied it to his job, that is Meyers’ job. He said, that was the declaration on the part of Mr. Brewer; and that the production of Mi*. Brewer’s books showed that that $455 • was applied to the Meyers contract. Now,- that is the issue on that point; and you have got to determine that. And the law applicable to that branch of the case is this, that notwithstanding the fact that Meyers gave Kunsman $500 with the expectation, or even with the positive instruction, that that money should be sent to Brewer for the Meyers contract, if in point of fact Kunsman didn’t do it, but, on the contrary, sent it to Brewer with instructions to apply it to his old note, then Brewer’s duty was to apply it to the old note, because Kunsman, when he sent the money to Brewer, had the right to direct him what to do with that money, to what account to apply it; and if he gave Brewer the instruction to apply it to the old note, then it was Brewer’s duty to apply it to the old note. But the suggestion on the part of the defendant is, “I don’t care what the instruction was from Kunsman to Brewer, and I don’t care what Brewer’s duty was to Kunsman as to the application of that $455, that, notwithstanding those instructions, in point of fact,” that, is the contention of the defendant, “in point of fact, Brewer applied it to the Meyers job.” Now, did he, or didn’t he? Brewer says he did not, that he applied, it to the old note. . Kunsman says he gave him instructions to apply it to the old note, The plaintiff produces the old note, which corresponds very closely in amount. All these circumstances might lead you, of course, to the conclusion that the instruction from Kunsman to Brewer, to apply it to the old note, was in point of fact followed out. [Yet, according to the testimony of the defendant, Brewer’s declaration at the time was, that he didn’t apply it to the old note but he had applied it to the Meyers job, that he so declared to Meyers, and that his books show it. Whether or not his books show it, is for you to determine. You can take that as some evidence in the case. You can also take the declaration that the defendant alleged, that that was applied to the Meyers job.] (7) And he must sustain the affirmative of that declaration and he must convince you that that $455 was in point of fact applied to the Meyers job and not to the old note. There seems to be —I don’t recall any dispute now and I say there seems to be no dispute of the fact that Meyers did pay $500 to Kunsman on or about that date. That was a payment from Meyers to Kunsman and Meyers would have the right to say to Kunsman, “I have paid you $500 and I want a release of liens.” If Kunsman subsequently produced a release of liens and handed it over to Meyers and there was nothing else confusing in this case, why, then it could be justly said, of course, that Meyers received that release of liens from Kunsman for the consideration of the $500 paid to Kunsman; and if Morris Brewer depended upon — they say, false promises or false hopes that he had in Kunsman about having his $600 check paid and that $600 check went to protest, why, that was very unfortunate for Mr. Brewer. But if this release of liens got into the hands of Meyers innocently and honestly, and he is an innocent Tiolder for value, then the release must speak for itself. Then you are brought back to the question, what is the release? If it is for bricks and bricklaying, only, then Brewer could be entitled for the plastering. Don’t you see the great many confusing questions of fact, the large1. amount of evidence taken pro and con? And you have got to reconcile that evidence as best you can. Every man is presumed to be telling the truth; and it will be your duty, so far as possible, to reconcile the evidence. But where you cannot reconcile it, why, then you have got to determine which witnesses to believe, you have got to determine the credibility of these witnesses; and on that point, of course, you have the right to take all proper matters into consideration, their appearance upon the witness stand and manner of testifying, from which you can judge of their reliability and credibility. There is a circumstance in this case which I think is undisputed, and that is, that that check of $600 given by Kunsman to Brewer was protested on or about September 18,1913, and that check, although protested upon that day, is still in the possession of Morris Brewer. Is that check good since that day; is that check good today; will that check be good to-morrow? Can he sue Kunsman on that check? It is in his possession; he has never given it up. That is a circumstance, gentlemen, from which we are forced to the conclusion, of course, that he is the possessor of this mechanic’s lien and also possessor of the check. If that check should get into the hands of an innocent holder, why, I suppose it could be collected — an innocent holder for value, of course. So here we have outstanding — for one debt of $637.50, we have outstanding one mechanic’s lien and one check. Both cannot be collected. That is a circumstance that I call to your attention, only; and It ,may have some bearing upon this case. At all events, it is a fact in the case. This whole case has b.een tried upon the theory, of course, that this release applies to the lot of land upon which this particular double house is situate. There seems to have been no question raised in the course of trial and the whole case has been tried upon the apparent admission on both sides, taking for granted that this release does apply to that particular lot, although in reading the release you will find that it refers to a lot of land known as No. 215, whereas the mechanic’s lien refers to house No. 217. Of course, the release applies to the lot of land and the mechanic’s lien designates that lot of land by giving the house number ; in other words, the house number is not the same as the lot number. But as I say, it has been taken for granted through the whole course of this trial that that is the same property; and from all the evidence in the case, you can determine that fact, that this release does apply to this same property. Of .course, if there is such evidence in the case, which I do not just now recall, but if you do. find that this release of liens refers to another house and another property, then you will throw out this release entirely. But if you find, as I say, that it applies to this same property that we are talking about and have been trying here for the last two days, why, then you can so determine.</p> <p>Plaintiff presented these points:</p> <p>2. Under the evidence the creditor, Brewer, when he accepted the check of $455 from Kunsman had no right to apply it otherwise than to the protested note of June 21, 1913, due July 21, 1913, and protested for nonpayment at maturity, given by Kunsman.</p> <p>Answer: That point, I affirm, as I have already explained in my general charge. That is, Brewer would have no right to apply that $455 check to any other account except the account that Mr. Kunsman requested him to apply it to. If he didn’t so apply it, it would be a breach of his duty to Kunsman. So the point is affirmed with this explanation, that while he had no right, while it would be a breach of duty to Kunsman, it doesn’t mean that in point of fact he couldn’t apply it to any other account, because a man can do that which he has no right to do. His not doing so would be a breach of duty to Kunsman. (1)</p> <p>3. Under the evidence, Kunsman, as the contractor for the defendant, Meyers, was directed to obtain the signatures to the release and became the agent of Meyers for that purpose and the signing of the paper by Brewer with the statement that he did. so upon the condition that he was to be paid $600 was binding upon Meyers and the release was void unless the jury believe that the $600 was paid to Brewer.</p> <p>Answer: I cannot affirm that point as drawn; it assumes so many facts as being established which facts are still in dispute. And I have, I think, fully explained the law raised by this point in my general charge. (2)</p> <p>4. The release signed by Brewer was limited to the bricks and bricklaying by its terms and could not be construed to extend to the contract for plastering.</p> <p>Answer: That point, I affirm, with the qualifications and explanations contained in my general charge. (3)</p> <p>The court erred in the general charge to' the jury the effect of the charge being to confuse the jury and mislead them.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 2, 3-6, 7) above instructions quoting them.</p>

<p>Appeal, No, 309, Oct. T., I91G, by defendant, from order of C. P. No. 4, Philadelphia Go., Dec. T., 1915, No. 1747, M. L. D. making absolute rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia to use of D. Webster Anders v. Edward L. Scholl.</p> <p>Scire facias sur municipal lien for paving.</p> <p>On a rule for judgment for want of a sufficient affidavit of defense Audenried, P. J., filed the following opinion:</p> <p>The Gity of Philadelphia claims of the defendant, Edward L. Scholl, by way of lien upon his lot on the west side of Sixty-third street north of Lansdowne avenue, the sum of $244.06 for paving done in front of that property. Its claim has been filed to the use of I). Webster Anders, by Avhom Sixty-third street bettveen Lansdowne avenue and Jefferson street' was paved with vitrified brick under a contract Avith the city authorized by an ordinance approved July 6, 1914. The work of the use-plaintiff Avas completed September 15, 1915; and he received under his contract in part payment therefor the bill for the proportion of the cost of the pavement that Avas assessed against the land of the defendant.</p> <p>To the scire facias issued upon this claim Mr. Scholl has filed an affidavit of defense asserting that his lot is not liable to such a charge, (a), because the pavement in respect of Avhich it is presented is not an original pavement, and, (b), because, even if it be so regarded, the city, by agreement with the Philadelphia Eapid Transit Company, (Avhich, to the relief of the owners of land abutting on this part of Sixty-third street had, under certain contracts, become bound to do the work of paving there) assumed, in consideration of sundry large cash payments, the duty of paving that street among others and, therefore, cannot collect the cost of the work from the abutters.</p> <p>It is suggested by the use-plaintiff that these defenses are not sustained by Mr. Scholl’s averments of fact; and judgment against him is demanded for want of a sufficient affidavit of defense.</p> <p>The averments relied on to sustain the first defense set up by the affidavit may be briefly summarized as follows: (a) Before the construction of the vitrified brick pavement provided for by the ordinance of July 6, 1914, a Telford pavement had been laid on Sixty-third street, in front of the defendant’s property, extending from curb to curb (except between the car tracks, where Belgian blocks had been laid); and this pavement had been paid for by the owners of the abutting land.</p> <p>(b) The Telford pavement laid by the abutters was left undisturbed by the city authorities for more than twelve years. ,</p> <p>(c) It had always been kept in repair by the city.</p> <p>(d) Prior to the laying of the pavement of 1915, the city had installed sewers, gas pipes and water pipes in the part of Sixty-third street involved in this case.</p> <p>(e) The properties abutting on the part of Sixty-third street now under consideration were, prior to 1915, taxed at full city rates.</p> <p>(f) The normal charge made by the city for a permit to open the bed of a street which it has not paved and whose pavement it has not adopted, is one dollar, but even before the laying of the vitrified brick pavement, the sum of six dollars was charged for a license to break the Telford pavement of Sixty-third street for the purpose of making sewer, water or gas connections.</p> <p>(g) The Telford pavement on Sixty-third street was, if properly maintained, sufficient for the needs of the neighborhood.</p> <p>On the authority of the decision in Philadelphia v. Hafer, 38 Pa. Superior Ct. 382, we adjudge each of the facts thus alleged and all of them united insufficient to warrant a jury in finding that the city ever adopted the Telford pavement laid by the abutters on Sixty-third street as a paving of that highway of such a character as to exonerate them from liability for the cost of the subsequent improvement of the .street. In view of the very careful discussion by the Superior Court in that case of the precedents, (see Philadelphia v. Dibeler, 147 Pa. 261; Philadelphia v. Hill, 166 Pa. 211; Philadelphia v. Eddleman, 169 Pa. 452, and Harrisburg v. Baptist, 156 Pa. 526), and of the facts there involved, which are practically identical with those presented by the defendant’s affidavit here, it is unnecessary to say more upon this phase of the case.</p> <p>The propositions on which Mr. Scholl’s second defense is based are substantially as follows:</p> <p>(a) By its contract with the Philadelphia Rapid Transit Co., provided for by the Ordinance of July 1, 1907, and authorized by the Act of April 15, 1907, the City of Philadelphia, assumed the obligations with respect to street paving which bound thát corporation.</p> <p>(b) The Philadelphia Rapid Transit Co. had by contract assumed the obligations of the Union Traction Co. in that behalf.</p> <p>(c) The Union Traction Co. has assumed the paving obligations of the Hestonville, Mantua and Fairmount Passenger Railway Co.</p> <p>(d) The Hestonville, Mantua and Fairmount Passenger Railway Co. was bound to pave Sixty-third street from Haverford avenue to Lancaster avenue, thus including that portion of the street on which the defendant’s lot fronts, for two reasons, viz:</p> <p>(1) Because by'Contract entered into with the city under the Ordinance of March 30, 1893, it had agreed to repave all streets to be occupied by it not then paved, or then paved but in a way not satisfactory to the Depart-' merit of Public Works.</p> <p>(2) Because it had assumed the obligations of its lessor, the Fairmount Park and Haddington Passenger Railway Company, which, by Ordinance of March 27, 1895, was permitted to extend its tracks along Sixty-third street upon the same terms as those contained in the Ordinance of December 1, 1892. By the ordinance last mentioned the city, consented to the construction of this company’s original line on condition, assented to by the company, that it would agree to accept as binding upon it the terms and conditions of all laws and ordinances then in force, or which might thereafter be passed, relative -to the government, control or regulation of railways or railroads of any kinxl Within the city limits; and by Ordinance of May 26/1894, it was required that as> soon as the lands then taxable at suburban, rural or farm rates, and abutting on streets occupied by street railways, should be taxed at full city rates, the corporations operating such railways should, as directed by the Department of Public Works, repave such streets.</p> <p>It is argued on behalf of the use-plaintiff, that, even if all these propositions are justified by the facts averred in the affidavits filed, the defendant’s second objection to the claim is .without merit because the city, since it might release any right that it acquired by contract to require the paving of its streets by street railway companies, and look to the abutters (who were not parties to the contracts) for the cost of doing the work, may release itself as successor to the obligations of such corporations in this matter, and thereby restore the situation that existed before the contracts were made, with the same financial burdens on the property owners. In the case of Philadelphia v. Philadelphia, Trustee, however, where we had occasion to consider the effect of the contract of July 1, 1907, between the city and the Philadelphia Eapid Transit Co., we held that the former, having for reasons satisfactory to its authorities and in consideration of the large sums of money for which it had stipulated, assumed by the contract, in the place of the latter', the duty of meeting such expenses connected ivith the paving of the streets as the passenger railway companies had originally undertaken to discharge, thus, by implication, relieved the owners of property on the streets involved from all liability for the cost of the paving thereof, the reason being the manifest injustice of permitting it to collect that cost by way of assessment on the property owners, as well as the large yearly payments provided for by its contract with the Philadelphia Eapid Transit Go. Our judgment was affirmed by the Supreme Court (see 244 Pa. 224); and the reasoning thus approved seems to be just as applicable to the case where the paving obligation assumed by the city arose, as it is said to have done here, out of a contract whereby the street railway company accepted the terms of a city ordinance, as in the case where it originated in the company’s acceptance of the grant of a charter from the legislature. Under the principle laid down in Philadelphia v. Philadelphia, Trustee, the second defense set up by Mr. Scholl would, we think, have to be sustained if the premises upon which it is based were sound.</p> <p>The city’s alleged obligation to defray the cost of the laying of the pavement on Sixty-third street, depends, so far as the defendant’s affidavits go, on the duty of the Hestonville, Mantua and Fairmount Passenger Railway Go. to pave that street. In our opinion this corporation, for the following reasons, was not subject to such a duty.</p> <p>A fair reading of its contract with the city under the Ordinance of March 30,1893, confines its undertaking to pave the streets to be occupied by it to the streets whose occupation was authorized by that ordinance, and Sixty-third street is not one of them.</p> <p>It operated passenger cars over t'he tracks laid on Sixty-third street, but this it did as lessee of the property and franchises of the Fairmount Park and Haddington Passenger Railway Co., to which the right to occupy this street had been given by the city under the Ordinance of March 27, 1895.</p> <p>It is true that the conditions on which that grant was made to the Fairmount Park and Haddington Passenger Railway Co. were the same as those imposed by the Ordinance of December 1, 1892, by which this corporation acquired the city’s consent to the construction of its railway as originally projected; but the only provision contained in the ordinance last named which refers specifically -to the subject of street paving is the requirement that the company “shall agree to keep and maintain in good order at all times, whether paved, macadamized or unimproved, all streets, avenues, or roads traversed by its lines of railway, or by its trolley system.” The duty of maintaining existing roads, streets, etc., whether paved, macadamized or unimproved, is a ■very different thing from an obligation to pave all such highways with an “improved” pavement.</p> <p>It is also true that the corporation last named bound itself to accept as binding upon it the terms and conditions of all laws and ordinances then in force or which might thereafter be passed, relative to the government, control or regulation of railways or railroads of any kind within the City of Philadelphia; but this did not, as contended by the defendant, subject the company to any of the requirements of the Ordinance of May 26, 1894. That ordinance, as plainly appears by its preamble, was intended to apply only to the case of passenger railway and traction companies to which privileges had been granted by the city on condition that they should “repave simultaneously with the construction of their several trolley lines, with improved pavement, all streets and avenues traversed by their several lines.” As noted above, neither of the ordinances authorizing contracts between the city and the Fairmount Park and Haddington Passenger Railway Company contained a paving requirement. Moreover, a clause in the Ordinance of May 26, 1894, specifically provides “that nothing contained in this ordinance shall apply to any street or avenue upon which rails are not yet laid.” As appears by the affidavit of defense, the car tracks on Sixty-third street were not laid until after the passage of that ordinance.</p> <p>From what has been said, it follows, we think, that the contract made by the city and the Philadelphia Rapid Transit Co., under the Ordinance of July 1, 1907, and the Act of April 15, 1907, is absolutely without bearing on the rights of the parties to this cause; that, since the Telford pavement on Sixty-third street was neither laid by the municipality nor subsequently adopted by it in discharge of the obligation of the abutting property owners to defray the cost of paving the street, the claim filed in this case must be sustained; and that judgment should be entered against the defendant for want of a sufficient affidavit of defense.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 87, Oct. T., 1917, by plaintiff, from judgment of O. P. No. 5, Philadelphia Co., March T., 1913, No. 5321, for defendant n. o. v. in case of J. T. Riley v. David Kalian.</p> <p>Assumpsit for goods sold and delivered. Before Staples, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Superior Court.</p> <p>Verdict for'plaintiff for $299.37. The court in an opinion by Martin, P. J., entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Malicious prosecution — Malicious use of civil process — Wrongful entry of judgment in ejectment — Evidence.</p> <p>A judgment on a verdict for plaintiff in an action for malicious use of civil process will be sustained, where it appears that the plaintiff had been wrongfully ejected from premises under a judgment entered on a warrant of attorney that had been exhausted by a prior entry of judgment in ejectment for the same premises, and it also appears that there had been personal quarrels between the defendant and the wife of the plaintiff.</p>

Appeal, No. 117, Oct. T., 1917, by plaintiffs, from judgment of O. P. No. 3, Philadelphia Co., Dec. T., 1915, No. 2369, on verdict for defendant in case of Adolph Lovenovith and Helen Lovenovith v. Knights of Joseph Building and Loan Association. Issue to determine whether a mortgage had been paid. Before Ferguson, J. The facts are stated in the opinion of the Superior Court. Error assigned was in overruling motion for judgment for plaintiff n. o. v.

<p>Appeal, No. 330, Oct. T., 1916, by plaintiff, from order of C. P. No. 4, Philadelphia Go., Sept. T., 1911, No. 2705, refusing to take off nonsuit in case of Charles Yingling and Charles H. Yingling, trading as C. Yingling & Son, v. Fred C. Dunlap.</p> <p>Assumpsit to recover an amount for which the defendant was alleged to be personally liable on an unauthorized city contract. Before Finletter, J.</p> <p>From the record it appeared that the defendant entered into an oral contract without prior advertisement for bids with the plaintiffs to furnish a grate for the Shawmont Pumping Station. The, evidence showed that an appropriation had been made by city councils for. the purchase of boilers and parts for the station in question in 1911. The defendants assumed no' personal liability in writing under the contract. ,</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence — Carriers—Ferry ■ company — Passenger — Presumption — Injury to instrument of transportation.</p> <p>In an action by a passenger against a carrier to recover damages for personal injuries where the evidence shows that the injury was connected with one of the appliances of transportation, a presumption of negligence arises which it is the duty of the defendant to overcome.</p> <p>Where in an action against a ferry company by a passenger to recover for personal injuries, it appears that the plaintiff when going upon a ferry boat was injured by the gangplank suddenly rising and striking her, and that after the accident there was found a newly-made scratch, or cut upon the floor of the slip indicating that the gangplank had moved twelve or fourteen inches out of its accustomed place, a presumption of negligence arises against the defendant, in the absence of any proof as to what caused the movement of the plank.</p>

<p>Negligence — Railroads—Passenger—Weight of testimony — Number of luitnesses.</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for the plaintiff will be sustained, where the testimony of the plaintiff and another passenger shows that the injury was sustained at a junction point where cars were coupled, according to the account of the two witnesses, with “unusual” and “extraordinary” and “terrific” force, and without warning, throwing the plaintiff forward in his seat with such violence as to result in hernia, although twelve witnesses, employees of the defendant and passengers, testified in substance that the coupling was effected without disturbing any other persons in the cars, and without unusual violence. In such a case the defendant cannot complain of the trial judge’s action in submitting the case to the jury, if it appears that he did not minimize the effect of the numerical preponderance of the witnesses for the defendant, and the legitimate advantage to which the defendant was entitled by reason of this marked numerical preponderance of witnesses. Fomwalt v. Philadelphia R. T. Co., 65 Pa. Superior Ct. 559, distinguished.</p>

<p>Appeal, No. 121, Oct. T., 1917, by plaintiff, from judgment of Municipal Court, Philadelphia Co., Oct. T., 1916, No, 221, on verdict for defendant in case of Standard Engineering & Construction Co. to use of D. A. Daly and Frederick Wielandt, trading as Daly, Wielandt & Company, v. Smyser-Royer Company.</p> <p>Assumpsit on an agreement to' pay $210. Before Wheeler, J.</p> <p>From the record it appeared that on January 31,1914, the Standard Engineering and Construction Company and the Smyser-Royer Company entered into a contract calling for certain iron for the Philadelphia Institution for Feeble Minded. Under this contract the construction company was to pay Smyser-Royer Company the sum of $4,975 from time to time as the work progressed. Smyser-Royer Company completed its contract about June of 1914, when there was due to it by the construction company $4,477.06. The construction company and Smyser-Royer Company had various dealing with each other, and in January of 1915 the Smyser-Royer Company wrote a letter to the construction company to the effect that if the construction company would cancel a contract it had for certain work with one R. C. Ballinger, so that a new contract for the same work could be en- ■ tered into direct with Ballinger by the Smyser-Royer Company, the Smyser-Royer Company would pay the construction company $210 when they had received payment in full under the contract with Ballinger. Under this letter $210 became due by Smyser-Royer Company on January 24, 1916, when that company received its final payment from Ballinger. On January 15, 1915, the construction company assigned this agreement to the use-plaintiffs, Daly, Wielandt & Company, who on February 17, 1915, notified the Smyser-Royer Company of this assignment. Subsequently the Standard Engineering and Construction Company was adjudicated a bankrupt. It appeared that the Smyser-Royer Company did not prove its claim against the Standard Engineering and Construction Company in bankruptcy.</p> <p>Defendant presented, inter alia, the following point:</p> <p>6. The plaintiff in this case, the Standard Engineering & Construction Co., was adjudged a bankrupt in February, 1915. Defendants had notice of the fact that the Standard Engineering & Construction Co. was adjudicated bankrupt. Under the law defendants were compelled to prove-this claim against the bankrupt estate within one year, from the adjudication of bankruptcy— this they failed to do — they cannot, therefore, prove this claim in this court by means of this set-off, and your verdict must be for the plaintiffs.</p> <p>Refused.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned, among others, were (7) refusal of above point, quoting it, and (10) in directing a verdict for defendant. '</p>

<p>Appeal, No. 21, Oct. T., 3917, by defendants, from judgment of Municipal Court'of Philadelphia Co., May T., 1916, No. 288, on verdict for plaintiff in case of Nicholas Hinski v. Rqsie Stein and</p> <p>George Stein, her husband. ’</p> <p>Trespass for slander. Before Wheeler, J.</p> <p>The statement charged that Rosie Stein on April 28, 1916, spoke the following words to plaintiff’s wife:</p> <p>“Your husband (meaning plaintiff) is a thief, and I can prove it. He stole a spigot out of my house, and the pipe down the street he stole from the shop he Avorks at.”</p> <p>It did not appear that George Stein was present when the Avords Avere spoken, or that he had instigated or abetted their utterance.</p> <p>. Verdict for plaintiff and against the defendants for $50. Defendants appealed.</p> <p>Errors assigned, among others, were (2) in refusing binding instructions for defendants, and (3) portions of charge quoted in the opinion of the Superior Court.</p>

<p>Courts — Jurisdiction—Municipal Court of Philadelphia — Banks and banking — Dishonor of check.</p> <p>The Municipal Court of Philadelphia has jurisdiction of an action of trespass for damages to a depositor’s credit by reason of a bank’s nonpayment of his cheek, where the amount claimed in the statement is $1,800. Such a suit is an action “for damages for personal injuries” within the meaning of the Act of July 12, 1913, P. L. 711, creating the Municipal Court.</p> <p>In an action by a depositor to recover $1,800 from a bank for dishonoring a check for $42 where it appears that through a mistake of the clerk plaintiff’s balance should have been $59.90 instead of $38,90 when the check was presented, it is reversible error for the court to refuse to admit evidence, the tendency of which is to show that plaintiff himself had repeatedly in the past so conducted his financial transactions with the bank that the latter had been forced to reject checks drawn by him in excess of the sum to his credit in the bank.</p> <p>Such a judgment on a verdict for $1,200 will be reversed and a new venire awarded.</p>

Appeal, No. 145, Oct. T., 1917, by plaintiff, from judgment of C. P. No-. 1, Philadelphia Co., June T., 1915, No. 2470, on verdict for plaintiff in case of Louis I. Bellow, trading as Auto Transit Company, v. Francis J. Lintott. Replevin for the recovery of an automobile. Before Bregy, P. J. From the record it appeared that the automobile was found in the possession of the defendant. Defendant entered counterbond and retained possession of car.

<p>Appeal, No. 114, Oct. T., 1917, by The Fidelity & Casualty Company of New York, from order of C. P. No. 3, Philadelphia Co., Sept. T., 1916, No. Ill, dismissing appeal in case of Louisa Ida Amelia Irvin v. William M. Frost & Company and The Fidelity & Casualty Co. of New York, Insurance Carrier.</p> <p>Appeal from award of Workmen’s Compensation Board.</p> <p>From the record it appeared that John M. Irvin died on May 11,1916, as the result of an accident occurring in the course of his employment by William M. Frost & Co. He left to survive him a widow and an infant born shortly after his death. The Workmen’s Compensation Board made the following award: 1</p> <p>The award of the referee was as follows:</p> <p>I award under Article III, Sections 301, 307 and 308, of the Workmen’s Compensation Act of 1915, to the widow, Louisa I. A. Irvin, for three hundred weeks, forty-five per cent, of $10.50, or $4.72% from May 11,1916, to February 11, 1922, total $1,417.50. To daughter, Matilda May, fifteen per cent, of $10.50, or $1.57%, for five hundred and thirty-five weeks from February 11, 1922, to May 16, 1932, total $843.15.</p> <p>Total amount to be paid $2,260.65.</p> <p>Error assigned was order dismissing the appeal from the award.</p>

Appeal, No. 85, Oct. T., 1917, by defendant, from judgment of O. P. No. 1, Philadelphia Co., Sept. T., 1915, No-. 2351, on verdict for plaintiff in case of Schwarz Wheel Co. v. John F. Charles and Elmer D. Wilt, Copartners, trading as A. Wilt & Sons. Trespass to recover damages for destruction of lumber delivered to defendants to dry.

<p>Negligence — Railroads—Concurrent use of city street with public — Contributory negligence — Province of court and jury.</p> <p>Where a railroal company operates three tracks on a city street, with the tracks flush with ti 3 pavement, its right to use the street is not superior to the public, but concurrent with it. If in operati ing a train on such a street, an engineman sees ahead of him a man driving a horse not attached to a vehicle, and proceeds without giving any warning, and while he and the fireman are talking on the opposite side of the engine, the man is struck by a projecting part of the tender or engine, the injured person in an action against the company is entitled to have the question of his contributory negligence submitted to a jury.</p>

<p>Appeal, No. 35, April T., 1916, by plaintiff, from judgment of C. P. Beaver Co., Dee. T., 1915, No. 413, on verdict for plaintiff in case of Deposit National Bank of Du Bois v. Beaver Trust Company, Administrator of John Spencer, deceased.</p> <p>Assumpsit on three promissory notes. Before Baldwin, P. J.</p> <p>From the record it appeared that two of the notes were for $5,000 each, and the third for $860. One of the $5,000 was in the following form:</p> <p>$5,000 Pittsburgh, Pa., Jan. 5th, 1914.</p> <p>Six months after date we promise to pay to the order of ourselves Five Thousand............Dollars at De-</p> <p>posit National Bank of DuBois, Pa., without defalcation, for value received.</p> <p>THE KYOTO POTTERY COMPANY,</p> <p>John Spencer, President.</p> <p>Wm. T. Smith, Secretary.</p> <p>No. , Due Dec. 5.</p> <p>Endorsed: The Kyoto Pottery Co.,</p> <p>John Spencer, Pres.</p> <p>Wm. T. Smith, Sec.</p> <p>John Spencer,</p> <p>Wm. T. Smith,</p> <p>The other $5,000 note was similar.</p> <p>The defense to these two notes was that the notes had been given in pursuance of an illegal agreement between the Kyoto Pottery Company and the Bohemian Art Potter Company by which the stock of the latter company was to be increased, and that some portion of the stock of the Kyoto Pottery Co. was sold without the company receiving consideration for it.</p> <p>The court charged in part as follows :</p> <p>[This contract is in writing- and its interpretation is for the court. The court interprets the contract that' The Bohemian Art Pottery Company of Falls Creek, Pa., shall increase its capital to $70,000, chánge its name to Kyoto Pottery Company of Pennsylvania, sell $20,000 of its common stock to Kyoto Pottery Company of Ohio, the consideration for said stock being the notes for $10,000 mentioned in the third paragraph which I have just read; and that being the meaning and intent of the contract, the contract is void to that extent, because both by the Constitution of this State and by statutory enactment fictitious issues of stock are forbidden.] (1)</p> <p>[The Constitution of the State provides in Article XVI, Section 7, that no corporation shall issue stock or bonds except for money, labor done, or money or property actually received, and all fictitious increase of stock or indebtedness shall be void. Now, that provision of the contract being void, any notes issued by the Kyoto Pottery Company in payment of the stock which is the subject-matter of that illegal agreement Avould be illegal.] '(2)</p> <p>[Now, if the bank knew of this illegality of consideration in the contract in pursuance of which these notes Avere issued, then it would be charged with knowledge of the illegal consideration for the notes, and they could not recover. You will recall the language of paragraph 3, of the contract providing that the preferred and common stock therein provided for should be deposited at the Deposit National Bank, “to be held in trust and as collateral security for loans, discounts or advances to the amount of ten thousand dollars on notes of the Kyoto Pottery Company of Ohio, endorsed by John Spencer and Wm. T. Smith, present OAvners and directors of said company, which said notes shall be for six months and the consideration for the $20,000 of common stock herein provided for as set forth in paragraph 1.” Hence the two notes Exhibit No. 1 and Exhibit No! 3, having been issued in pursuance of this paragraph of the contract were issued for an illegal consideration, and if this plaintiff bank had knowledge of the illegality of that consideration at the time it took the notes, the plaintiff could not recover, and your verdict should be for the defendant so far as these two notes are concerned.] (3)</p> <p>[In view of the — in the view the court takes of the law there is really little for the jury to find in this case. We will submit it to you simply on the testimony of Mr. Mc-Creight, who, you will remember, is the vice-president of the plaintiff bank, to determine whether or not the bank had knowledge of the illegality of that consideration at the time it discounted these notes. Now, the mere fact that Mr. McCreight was vice-president of the bank, and was also an officer, or held several offices in the Bohemian Art Pottery Company, would not be sufficient to charge the bank with knowledge of the illegal consideration for the notes; for even though Mr. Mc-Creight knew as an individual, that the consideration was, in fact, illegal — that is to say, although he knew of' the existence of this contract, unless the bank acquired the knowledge in the course of the negotiations which led up to the discounting of the note, the plaintiff would not be charged with knowledge of the illegality of the consideration; but the fact that he was vice-president of the bank, and also treasurer, and possibly secretary, of the Bohemian Art Pottery Company, may be taken into consideration as assisting you in reaching a conclusion that the bank actually knew of the illegal character of the consideration at the time it purchased the note.] (4)- -</p> <p>Verdict and judgment for plaintiff for $933.80. Plaintiff appealed.</p> <p>Errors assigned, among others, were (1-4) above instructions quoting them.</p>

<p>Appeal, No. 190, April T., 1917, by Margaret O’Donnell, from order of O. P. Butler Co., June T., 1915, No. 11, sustaining demurrer to statement of claim in Estate of Dennis O’Donnell v. The Producers & Refiners Oil Company.</p> <p>Trespass in the nature of trover and conversion for the taking of oil.</p> <p>Plaintiff’s statement was as follows:</p> <p>1st. Patrick O’Donnell, late of said Township of Donegal, died testate on the 30th of May, 1877, seized and in possession of ninety (90) acres of land, more or less, in said township. By the terms of his will probated August 15, 1883, recorded in said County of Butler in Will Book “H,” page 408, a true copy of which is hereto attached, he gave to his son, Dennis O’Donnell, the executor therein named, full authority to lease said land for oil and gas purposes, providing therein that the said Dennis O’Donnell should have the onp-third (1-3) of the oil royalty or the proceeds thereof as compensation for his services in the settlement of said estate. Pursuant to said authority, the said Dennis O’Donnell executed a lease of said land for oil and gas purposes to one, Peter Waltman, dated January 15, 1895. A true copy of this lease is hereto attached. The said Peter Waltman entered upon the land, drilled a well thereon which has been producing oil in paying quantities ever since.</p> <p>2d. The said Dennis O’Donnell died October 5, 1895, intestate, of whose estate shortly thereafter this affiant, his widow, became, and still is, administratrix. Under the terms of said will and of the lease executed by him as aforesaid, the estate of the said Dennis O’Donnell became the owner and was and is entitled to the one-third (1-3) of the royalty oil produced from said lease.</p> <p>3d. The royalty oil so reserved in said lease by the said Dennis O’Donnell, deceased, namely the one-eighth (1-8) thereof, has, with the other oil produced therefrom, been run into the lines of the Producers and Refiners Oil Company, Limited, the defendant, as provided in said lease. That although, the plaintiff has frequently made demand upon said company for the same and requested payment and delivery thereof to her as administratrix of said estate as aforesaid, and the share thereof of the proceeds thereof due her as administratrix of said estate, the defendant, the Producers and Refiners Oil Company, Limited, has hitherto refused and still does refuse to pay or deliver the same or any part thereof to her.</p> <p>4th. The said Producers and Refiners Oil Company, Limited, has not furnished her with an itemized statement of the account of the various runs of oil from said lease, and as she has no other means of ascertaining the amount thereof, she is unable to give the itemized statement of her claim, but on or about the 16th day of February, 1914, at which time demand was made for the one-third (1-3) thereof, the said company admitted that they held nine hundred sixty-nine and ninety-nine one-hundredths (969.99) barrels of royalty oil from said lease, that is one-eighth (1-8) of the total production thereof, and which at that date was of the value of twenty-four hundred twenty-four and 99-100 ($2,424.99) dollars according to the market price of oil at that time. The one-third (1-3) of this amount, namely eight hundred eight and 33-100 ($808.33) belongs to the plaintiff, the estate of the said Dennis O’Donnell, deceased, in its own right, but the defendant, on demand made, still refuses to deliver the same or pay over the amount thereof as aforesaid to this affiant as administratrix aforesaid, or any part thereof. Since that date, to wit January 13, 1915, the defendant company, on demand again made for the delivery of the same, stated that the royalty oil from said lease at that date was nine hundred ninety and eighty-two one-hundredths (990.82) barrels, being an increase or addition to the amount above stated of twenty and eighty-three one-hundredths (20.83) barrels, the one-third (1-3) of which, or six and ninety-four one-hundredths (6.94) barrels, would belong to the plaintiff, and at that date was of the value of ten and 40.100 ($10.40) dollars, making the aggregate value of the one-third (1-3) of said oil to be eight hundred eighteen and 73-100 ($818.73) dollars.</p> <p>5th. The defendant unlawfully, and contrary to its duty in this respect, has converted said oil to its own use and delivered or sold the same to other parties not entitled thereto, notwithstanding all notice and demand to the contrary, and have hitherto continuously refused to deliver the same or any part thereof to the plaintiff.</p> <p>Wherefore she has sustained damage in the sum of fifteen hundred ($1,500.00) dollars, and brings this action for the recovery of the same.</p> <p>The defendant filed a demurrer to the statement alleging the following grounds:</p> <p>(1) The statement is insufficient in law.</p> <p>(2) The administratrix is not the proper party to bring such an action.</p> <p>(3) The action of trespass does not lie in this case against the defendant.</p> <p>(4) There is no averment in the statement of claim that Dennis O’Donnell performed the services, for which he might claim one-third of the proceeds of the oil.</p> <p>(5) The right to claim one-third of said proceeds was personal to Dennis O’Donnell, and cannot be claimed by plaintiff.</p> <p>(6) The royalty interest claimed by the plaintiff would belong to the heirs of Dennis O’Donnell, and not to his administratrix.</p> <p>(7) That the said statement is in other respects uncertain, informal, and insufficient.</p> <p>On April 10, 1916, the court entered the following order:</p> <p>“And now, April 10, 1916, the demurrer filed in this case is sustained and judgment is directed to be entered for the defendant, with costs.”</p> <p>On March 19, 1917, the prothonotary entered the following judgment:</p> <p>“And now, March 19,1917, judgment is entered against the plaintiff and in favor of the defendant for the sum of eleven and 65-100 dollars, being costs, as directed in order court filed at A. D. No. 11, June Term, B. 35, P. 11.”</p> <p>Error assigned was the order entered on April 10, 1916.</p> <p>The plaintiff moved to quash the appeal.</p>

<p>Taxation — Townships—Illegal assessments.</p> <p>Where township commissioners assess taxes to be expended in the discharge of debts of a previous year some of which were incurred in violation of the provisions of the law, they will be enjoined from collecting an amount sufficient to pay the illegal debts although the money to be collected for such payment was not so designated in the budget, but was included in other funds not necessary for the purpose for which they were apparently intended.</p> <p>If, in such a case, it appears that an act of assembly had extended the fiscal year of the township during which the alleged illegal indebtedness had been incurred to thirteen months, and that some of the illegal indebtedness had been incurred for the current expenses of the additional month, the commissioners may appropriate in a subsequent year in a lawful manner, a sum sufficient’ to discharge any outstanding indebtedness of the township arising from the fact that the fiscal year in question included thirteen months instead of twelve.</p>

<p>Contract — Guaranty—Oral evidence — Case for jury.</p> <p>Where a -written contract for the sale of an automobile fixed the price, stated a number of details as to equipment, and concluded as follows, “this car is to bo put in guaranteed condition,” oral evidence is admissible to explain what “guaranteed condition” meant, and especially evidence as to representations made by the seller’s agent, at the time of the sale tending to show what the words meant.</p> <p>Practice, O. P. — Trial—Points.</p> <p>Points for charge which are based on assertions that the undisputed evidence established certain facts are prbperly refused, where an examination of the evidence shows that such facts are not so established.</p>

<p>Courts — Allegheny County Court — Certiorari to Common Pleas —Appeals.</p> <p>Under the Act of May 5, 1911, P. L. 198, creating the County Court of Allegheny County, defining its jurisdiction, and prescribing the practice and procedure therein, either a certiorari or an appeal may be taken from its judgment to the Common Pleas. On a certiorari the Common Pleas cannot review alleged errors in the admission or rejection of evidence, but only errors appearing on the face of the record.</p> <p>Doubted whether the Act of April 22, 1905, P. L. 286, authorizing courts to certify evidence and enter judgment upon the whole record, applies to the County Court of Allegheny County created by a later act; but even if it did it would have no application to a case where there has been no prayer for a binding direction by the trial judge to the jury.</p>

<p>Appeal, No. 49, April T., 1917, by defendant, from judgment of O. P. Allegheny Co., April T-, 1916, No. 1718, reversing judgment of the County Court of Allegheny County in suit of S. H. Bradshaw v. C. L. Saxton.</p> <p>Certiorari to County Court of Allegheny County.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>Error assigned was in reversing judgment of the County Court.</p>

<p>Railroads — Rates—Iron a/nd steel companies — Transportation of slag — Waste—Public Service Commission.</p> <p>Iron and steel companies have no natural or statutory right to impose upon carrier railroads in their vicinity the burden of disposing, without compensation, of the waste slag which necessarily results from the manufacture of the products they market and sell, although the railroad companies transport to their plants raw material which they use, and caray away the finished products. Such companies cannot assert that reasonable compensation for such services is concealed in the published rates which they pay for bringing in their raw materials, and taking away their finished product; nor can they claim that they are exempt from such charges because the railroad companies, for a long period of time, but under different circumstances and conditions, did not enforce such payment.</p> <p>Aai order of the Public Service Commission setting aside and abolishing a published schedoile of rates for slag without establishing another schedule of rates in its place, will be reversed by the Superior Court, in the absence of any finding by the eoonmission that the railroads were and are being paid a just and reasonable compeoisation for the disposition of the slag, by reason of any pecooliarly favorable rate charged for the incoming and outgoing freight of the shipping companies. The appellate court will not attempt to fix a rate, but will reverse the order and remit the case to the Public Service Coonmissioao. for further proper investigation and -action.</p> <p>If railroad companies require in the construction and maintenance of their road beds, certain quantities of slag each year, they may lawfully arrange with the companies that produce the slag for the disposition of it; but the railroad companies cannot be compelled to accept slag where they do not need it or require it, and of such need they must be the judges.</p>

Appeal, No. 209, Oct. T., 1917, by defendant, by Ms next friend, Lily B. Averett, from order of Municipal Court, PMladelpMa Co., Oct. T., 1916, No. 579, discharging rule to strike off judgment in case of Alexander Manning v. Aaron Baylinson. Rule to strike off judgment. The opinion of the Superior Court states the case. Error assigned was order discharging rule to strike off judgment.

<p>Practice, Municipal GouH — Trial by jury — Nonwaiver—Judgment — Buie to open judgment — Trial of issue.</p> <p>Where in an action in the Municipal Court of Philadelphia, to recover moneys en a lost judgment note, judgment is entered by default for want of an answer, and subsequently a rule to open judgment is made absolute, and the ease is put upon the trial list without the filing of an answer to plaintiff’s statement, and a petition for a trial by a jury is refused, and subsequently when the case is called for trial the defendant again demands a jury trial and states that he will elect to treat his petition to open the judgment ,as his answer, the court commits reversible error if it refuses the demand for a jury trial.</p> <p>The right to trial by jury cannot be taken away by implication, 'and if a party "in the'Municipal Court of Philadelphia has not expressly waived his right in the manner prescribed by the Act of July 12, 1918, P. L. 117, he may before trial demand that his case be tried by a jury.</p>

<p>Appeal, No. 181, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., Dec. T., 1916, No. 433, for plaintiff on case tried by the court without a jury in suit of Frank Kind, Oscar Kind and Philip Kind, trading as S. Kind & Sons, v. Mrs. Joseph J. Bodek.</p> <p>Assumpsit to recover the sum of $215, the cost of a diamond bar pin, alleged to have been sold and charged to the defendant.</p> <p>Knowles, J., who tried the case without a jury summarized the evidence as follows:</p> <p>“The plaintiffs testified that the defendant purchased the diamond bar pin upon her own credit, giving the salesman instructions to that effect, and that the merchandise was delivered to the defendant and charged to her account, although her husband had previously opened an account under which he had purchased goods to the amount of about $7.00 and subsequently had paid for the same; that through an error the bill and statements were sent to the defendant’s husband, and likewise certain letters demanding payment of the bill; that after efforts had been made to collect the bill from the husband, Joseph J. Bodek, covering a period of about six months, the plaintiff referred to the original sales slip and discovered that a mistake had been made in sending the bill, statements and letters to the husband, and ■ that after consulting their attorney they decided to bring an action against the defendant, Mrs. Joseph J. Bodek, in an attempt to collect the amount due.</p> <p>“The defendant testified she never bought the diamond bar pin upon’her own credit; that her husband had ordered it and that she was with him when the purchase was made. Also, she testified that on a previous occasion she had purchased a bracelet from the plaintiffs which her husband did not like when she exhibited it to him, he demanding, it should be returned and that something else should be purchased.</p> <p>“In rebuttal the plaintiffs’ salesman testified that the defendant was alone when the diamond bar pin was purchased.”</p> <p>Judgment for plaintiff for $230. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff.</p>

<p>Appeal, No. 226, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., March T., 1917, No. 434, on verdict for plaintiff in case of Fred J. Siebrecht v. James T. Stewart, trading as Stewart Automobile Company.</p> <p>Assumpsit on a contract for the exchange of an old automobile for a new model. Before Crane, J.</p> <p>The facts are stated in the opinion of the Superior Court.</p> <p>The jury under instructions by the court rendered a verdict for $360 on which judgment was entered.</p>

<p>Appeal, No. 148, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., April T., 1916, No. 228, for plaintiff on case tried by the court without a jury ixx suit of Charles C. Evans v. George E. Campion.</p> <p>Sheriff’s interpleader.</p> <p>The case was tried by Cassidy, J., without a jury, and judgment was entered for plaintiff.</p> <p>The opinion of the Superior Court states the case.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 107, Oct. T., 1917, by defendants, from judgment of O. P. No. 4, Philadelphia Co., June T.,'1916, No. 1468, for plaintiff n. o. v. in case of Ludwik J. Bronisz v. Stanislaus J. Cienkowski, Landlord, and John J. Brady, Constable.</p> <p>Replevin for goods distrained. Before Finletter, J.</p> <p>The opinion of the Superior Court states the facts.</p> <p>Error assigned was in entering judgment for plaintiff n. o. v.</p>

<p>Appeal, No. 292, Oct. T., 1917, by plaintiff, from order of O. P. No. 3, Philadelphia Co., March T., 1917, No. 1270, discharging rule for judgment for want of a sufficient affidavit of defense in case of Charles Rieder et al., Trustees of the Master Barbers’ Beneficial Assn., v. Catharine Miller et al., Executrices, etc. Mortgagors, Catharine Miller et al., real owners.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>From the record it appeared that John W. Miller died on May 26,1900, leaving a will which was as follows:</p> <p>“First. — I order and direct the payment of all my just debts and funeral expenses as soon after my decease as the same conveniently can be done.</p> <p>“Second. — All the rest, residue and remainder of my estate whether real, personal or mixed, I give, devise and bequeath unto my beloved wife, Catharine Miller, to have and to hold the same to her during all the term of her natural life.</p> <p>“Third. — After the death of my said wife, Catharine Miller, I give, devise and bequeath one equal third part of my said residuary estate unto the issue of my son, John B. Miller, now deceased, absolutely, and I give, devise and bequeath one other equal third part of my said residuary estate unto my daughter Laura A. Jaquett absolutely, provided she survives my said wife Catharine Miller, and in case she does not survive my said wife, then I give her said share unto her issue absolutely; and in default of issue I give her said share unto my daughter Sarah P. Miller absolutely, and the remaining one equal third part or share of my said residuary estate I give, devise and bequeath unto my said daughter Sarah P. Miller, absolutely; and in the event of ter not surviving my said wife but leaving issue, then I give any share or interest which she might be entitled to under this my will to her issue, absolutely; and in default of issue, I direct that her share shall be distributed as though I had died intestate and unmarried.</p> <p>“Fourth, — I hereby authorize and empower my executors hereinafter named to sell and dispose of any part or all of my said estate, real or personal, either at public or private sale, and for such price or prices as they may deem proper, and for such purpose to sign, seal, execute and deliver to the purchaser or purchasers thereof, good and sufficient deed or deeds in fee simple, or for any less estate, without any liability on the part of such purchaser or purchasers to see to or be responsible for the application of the purchase-money.</p> <p>“Fifth. — I hereby nominate, constitute and appoint my said wife, Catharine Miller, and my daughter Sarah P. Miller to be the executrices of this my last Will and testament hereby revoking and making void any and all wills by me at any time heretofore made.”</p> <p>The personal estate of the testator was settled in the Orphans’ Court in July, 1901, showing a balance after payment of debts and funeral expenses of $4,000.</p> <p>During the lifetime of the widow, on February 3,1914, the executrices, the widow and daughter, by virtue of the power contained in the will gave and executed the mortgage in suit to the Integrity Title Insurance, Trust and Safe Deposit Company, since assigned by said company to the appellants.</p> <p>Default having been made in the payment of the interest when due, the mortgage was foreclosed.</p> <p>The owners of two-thirds interest in the mortgaged premises filed an affidavit of defense averring that the execution of the mortgage was not within the scope of the authority conferred by the will.</p> <p>The court discharged the rule for judgment.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 252, Oct. T., 1917, by defendant, from judgment of Municipal Court, Philadelphia Co., June T., 1915, No. 208, on verdict for plaintiff in case of John Baner v. G. M. Moore. Trespass to recover damages for injuries to an automobile. Before Crane, J. At the trial it appeared that on the afternoon of April 8, 1915, plaintiff’s and defendant’s automobiles collided while they were being operated on the Northeast Boulevard in the City of Philadelphia.

Appeal, No. 179, Oct. T., 1917, by O. 0. Dodd, from order of Q. S. Clearfield Co., Jan. Sessions, 1917, No. 82, granting a retail liquor license In re Application of John F. Reed. Petition for a retail liquor license. Before Bell, P. J. The opinion of the Superior Court states the case. Error assigned was order granting the license.

<p>Liquor law — Retail license — Vacation of premises — Discretion of court.</p> <p>An order of the license court refusing a retail liquor license for premises in an outlying section of a borough will not be reversed because the court^in its opinion said: “We cite the fact that the long established policy of this court has been to confine liquor licenses to the more centrally located houses which are constantly under the observation of many citizens, and of the authorities, and at the same time are sufficiently convenient to all the patrons living and visiting in and about the borough.” In such a case there is no abuse of discretion in refusing the license.</p>

Appeals, Nos. 152, 153 and 154, Oct. T., 1917, by plaintiffs, from order of Municipal Court, Philadelphia Co., May T., 1916, Nos. 491, 492, 493, refusing to take off nonsuit in cases of George B. Sheldrake, Jr., v. Gustav Rumpf, Charles Holt v. Gustav Rumpf and Virginia Hahn, by her father and next friend, Patrick Conway, v. Gustav Rumpf. Trespass for malicious prosecution.

Appeal, No. 147, Oct. T., 1917, by defendant, from judgment of O. P. No. 4, Philadelphia Co., Dec. T., 1915, No. 4436, on verdict for plaintiff in case of Mary Hannis v. Edwin J. Driver. Trespass to recover damages for personal injuries. Before Finletter, J. At the trial it appeared that the plaintiff was injured in February, 1916, by the alleged negligent operation of an automobile by Arthur Driver, a brother of the defendant, and employed by him as a' chauffeur.

<p>Negligence — Workmen’s Compensation Act — Findings of fact— Appeals — Examination of evidence — Act of June 2,1915, P. L. 7§6.</p> <p>Under tbe Act of June 2, 1915, P. L. 736, it is tbe duty of tbe Workmen’s Compensation Board when an appeal is taken from tbe referee’s report, to examine all tbe evidence submitted when questions of fact are presented, and a bearing de novo is not allowed. Tbe right of the parties to insist that the board shall examine all the evidence, .and from it make its finding, is a right given by the act, and where it affirmatively appears from the board’s report that it has not considered the material and relevant evidence of one of the parties, such action is a denial to that person of a substantive right which the law gives, and such action presents a legal question for the determination of the appellate courts. In such a ease it is not the duty of the appellate court to determine whether a valid claim has been presented under the act. That is peculiarly the function of the compensation board, and the case will be remanded to that body for hearing and determination as provided by the statute.</p> <p>Where a workman during working hours steps on a tack or nail and-injures his toe, and thereafter goes into a different employment in another plant, and subsequently enters into a compensation agreement for a small amount with his first employer, and a few weeks afterwards dies from a swelling in the neck, the widow in an action for her husband’s death cannot set up the compensation agreement as res ad judicata that the injury was received during the course of employment. In such a case, if the Workmen’s Compensation .Board finds for the widow on the sole ground “that the matters contained in said compensation agreement are res adjudieata,” without considering any other evidence, the case will be remanded to the Compensation Board for further hearing and determination.</p>

Appeal, No. 101, Oct. T., 1917, by plaintiff, from judgment of Municipal Court, Philadelphia Co., June T., 1916, No. 369, for defendant on case tried by the court without a jury in suit of William F. Berkowitz, Guardian of Jacob Lindenbaum, a minor, v. Palruba Mfg. Co. and Louise Lindenbaum. Issue in interpleader framed under the Act of May 26, 1897, P. L. 95. Before Crane, J., without a jury.

<p>Appeal, No. 186, April T., 1917, by the Ohio Valley Water Company, from order of the Public Service Commission of Pennsylvania, Complaints Nos. 335, 415, 416, 417, 496, of 1915, in cases of Ben Avon Borough, McKees Rocks Borough, Bellevue Borough, Avalon Borough, Strnve Township, West View Borough, W. B. Dawson v. Ohio Valley Water Company.</p> <p>Complaints against Ohio- Valley Water Company on account of schedule of increased rates effective January 1,1914.</p> <p>All of the complaints alleged that the new rates were excessive. After hearing, Rilling, Commissioner, filed the report of the commission, fixing' a valuation of respondent’s property and determining a rate thereon. On a petition for a rehearing the commission filed another report decreasing the valuation. In this report the commission found inter alia as follows:</p> <p>“Following is a statement showing in parallel columns the reproduction costs as summarized by the two parties of engineers arranged and grouped so as to afford a comparison. The costs as stated by each party of engineers are arranged in three columns, namely: (a) Reproduction Costs; (b) Depreciation; (c) Reproduction Costs less Depreciation. In another column is shown the findings of the Commission as to the reproduction costs after considering in detail the inventory and valuation submitted by the respondent, the report of the engineers in conference, the revised summaries referred to and the testimony of the engineer's and others.” (See page 565.)</p> <p>Errors assigned showing the issues on appeal were in the following form :</p> <p>1. The commission erred in making the following finding:</p> <p>“The commission has reached the conclusion that the aggregate fair value of all the items set forth in the said summary of audits and appraisements which have been allowed and which comprise the entire property of respondent that is used and useful in the public service it is now rendering to the several municipalities served by ■it, is nine hundred and twenty-four thousand, seven hundred and forty-four dollars ($924,744) and that sum is the basis upon which its rate of return should be computed.”</p> <p>The said amount fixed by the commission is much less than the actual value of said property.</p> <p>2. The commission erred in making the following conclusion :</p> <p>“4. The fair value of the respondent’s property as it is used and useful in its public service upon which to base its rate of return in addition to annual operating expenses and a proper allowance for depreciation, as of January 1, 1916, is nine hundred twenty-four thousand seven hundred forty-four dollars ($924,744).”</p> <p> </p> <p>The said amount fixed by the commission is much less than the actual value of said property.</p> <p>3. The commission erred in making the following finding :</p> <p>“The commission has reached the conclusion that the aggregate fair value of all the items set forth in the said summary of audits and appraisements which have been allowed and which comprise the entire property of respondent that is used and useful in the public service it is now rendering to the several municipalities served by it, is nine hundred and twenty-four thousand seven hundred and forty-four dollars ($924,744), and that sum is the basis upon which its rate of return should be computed.”</p> <p>The commission merely fixes the lump sum of $924,-744 as the value of the property of appellant and does not give the items making up said value. It is essential that the items be given in order that, appellant may understand the method of valuation and take such steps as may be required for the protection of its rights in appealing to the courts.</p> <p>4. The commission erred in not finding that the value of the property of appellant for rate-making purposes Avas at least $1,500,000.</p> <p>5. The commission erred in making the following finding:</p> <p>“The commission has determined that the respondent is entitled to 7% on the fair value of its property as ascertained herein as a fair return to the owners over and above its necessary and operating expenses and depreciation. The annual operating expenses we have fixed at $63,500 and the commission is of opinion that an annual sum equal to % of 1% of the fair value should be allowed for depreciation. This amounts to $6,935.58, which, added to the operating expenses and fair return, make a total gross annual revenue to be received by the respondent as follows:</p> <p>Pair return 7% ............... $64,732.08</p> <p>Annual operating expenses..... 63,500.00</p> <p>Annual depreciation, % of 1% .. 6,935.58</p> <p>Gross revenue ............ $135,167.66”</p> <p>The gross revenue of $135,167.66 allowed by the commission is wholly inadequate.</p> <p>6. The commission erred in not finding that the gross revenue to which appellant is entitled is at least $200,-000.</p> <p>7. The commission erred in making the following finding:</p> <p>“The commission has determined that the respondent is entitled to 7% on the fair value of its property as ascertained herein as a fair return to the owners over and above its necessary and operating expenses and depreciation. The annual operating expenses we have fixed at $63,500 and the commission is of opinion that an annual sum equal to % of 1% of the fair value should be allowed for depreciation. This amounts to $6,935.58, which, added to the operating expenses and fair return, make a total gross annual revenue to be received by the respondent as follows:</p> <p>Pair return, 7%,.................$64,732.08</p> <p>Annual operating expenses, ....... 63,500.00</p> <p>Annual depreciation, % of 1Jo,---- 6,935.58</p> <p>Gross revenue,................$135,167.66”</p> <p>The return of 7% on the value of the property as ascertained by the commission, viz: $64,732.08, is wholly inadequate.</p> <p>8. The commission erred in making the following conclusion :</p> <p>“6. The respondent is entitled to have a rate of return upon the fair valuation of its property used and useful as herein found, of 7% over and above its necessary annual operating expenses and a proper allowance for depreciation.”</p> <p>The return of 7 % upon the value of appellant’s property allowed by the commission, over and above operating expenses and depreciation, is wholly inadequate.</p> <p>9. The commission erred in making the following finding:</p> <p>“On account of the increased cost of labor and materials at this time, the operating expenses will be accordingly increased, and in our calculation we think it is proper that we should add six per cent, to the total cost of operation for the year 1914, making a total of practically $63,500 per annum as the cost of operation of the respondent company, which we will use as a basis for our computation in determining the amount of gross revenue of respondent.”</p> <p>The amount of $63,500 allowed by the commission for annual operating expenses is wholly inadequate.</p> <p>10. The commission erred in making the following finding:</p> <p>“The commission has determined that the respondent is entitled to 7% on the fair value of its property as ascertained herein as a fair return to the owners over and above its necessary and operating expenses and depreciation. The annual operating expenses we have fixed at $63,500, and the commission is of opinion that an annual sum equal to % of 1% of the fair value should be allowed for depreciation. This amounts to $6,935.58, which, added to the operating expenses and fair return, make a total gross annual revenue to be received by the respondent as follows:</p> <p>Fair return 7%, .................$64,732.08</p> <p>Annual operating expenses,....... 63,500.00</p> <p>Annual depreciation, % of 1%, .... 6,935.58</p> <p>Gross revenue, ................$135,167.66”</p> <p>The annual depreciation of % of 1%, viz: $6,935.58, allowed hy the commission is wholly inadequate.</p> <p>11. The commission erred in making the following conclusion:</p> <p>“7. The respondent shall be allowed an annual depreciation of three-fourths of one per cent, of the fair value of its property, to wit: $6,935.58.”</p> <p>The annual depreciation of % of 1%, viz: $6,935.58, allowed by the commission is wholly inadequate.</p> <p>12. The combination of the valuation of appellant’s property and the revenue allowed by the commission therefrom amounts to the confiscation of the property of appellant.</p> <p>13. The report, findings, conclusions, ruling, determination and order of the commission amount to a deprivation of property without due process of law in violation of the Fourteenth Article of Amendment to the Constitution of the United States and of the first and tenth sections of the First Article of the Constitution of Pennsylvania. ■</p> <p>14. The report, findings, conclusions, ruling, determination and order of the commission alter, revoke or annul the charter of appellant company in such manner that injustice is done to the incorporators in violation of the tenth section of the Sixteenth Article of the Constitution of Pennsylvania.</p> <p>15. The report, findings, conclusions, ruling, determination and order of the commission impair the obligation of the contract between the appellant company and the Commonwealth of Pennsylvania, embodied in the charter of petitioner, in violation of the tenth section of the First Article of the Constitution of the United States.</p> <p>16. The commission erred in making the following conclusion:</p> <p>“5. The rates and minimum charges contained in the schedules filed by respondent on December 80, 1913, to take effect December 31, 1913, are unjust, unreasonable, inadequate, unjustly discriminatory and unduly and unreasonably preferential.”</p> <p>The said charges are fair and reasonable.</p> <p>17. The commission erred in making the following finding:</p> <p>“In conformity with the views herein expressed we recommend that the respondent should within a reasonable time acquire all the meters now owzzed by any of its patrozzs at a reasonable [Drice. The total sum expended by respondent in acquiring such meters will be a proper item to be included in its capital account.”</p> <p>The said finding is erroneous and not justified by the evidezzee.</p> <p>********</p> <p>20. The commission erred in making the following finding:</p> <p>“We have not allowed any amount for discount or brokerage, for the reason that no szzfficient evidence was furnished showing that any sum had been paid by the respondezzt for that purpose.”</p> <p>The evidence showed that the item of discount or brokerage was allowed for and paid by appellant in cash or securities.</p> <p>********</p> <p>27. The commission erred in entering the following order:</p> <p>“This matter being before the Public Service Commission of the. Commonwealth of Pennsylvania upon coznplaints and answers on file and having beezz duly heard and submitted by the parties and the commission after full hearing and investigation, having made and filed of record a report containing its findings of fact and conclusiozzs thereon, which report is hereby approved azid made a part hereof:</p> <p>“Now, to wit,' February 12, 1917, the Ohio Yalley Water Company is ordered and directed, on or before March 1, 1917, to file, post and publish a supplement to its tariffs, schedules, rules and regulations which shall carry into effect the determinations and conclusions of this commission with regard to service and the charges therefor contained in the above mentioned report.”</p>

<p>Landlord and tenant — Injuries from defect in premises — Notice ' — Caveat emptor.</p> <p>In the absence of fraud or concealment, a landlord is not r^ sponsible to a tenant for injuries resulting from defects existing at the time of tbe demise. Tbe rule of caveat emptor applies in full force and the tenant and his family are bound to use their eyes to discover such defects as are open to observation or inspection. This rule applies to a visible defect in a part of the means of egress from and ingress to the premises demised, and distinctively a part of them.</p> <p>Practice — ■Appeals—Suit by husband and wife — Single judgment —Act of May 8, 1895, P. L. 5Jj, Sec. 2.</p> <p>Where a husband and wife are joined in one action and a single judgment is entered on separate verdicts in their favor, and it appears on appeal that neither husband nor wife is entitled to recover, the appellate court in reversing the judgment will remit the record to the court below with directions to amend its record and enter separate judgments n. o. v. for defendant.</p>

<p>Wills — Perpetuities—•Trusts and trustees — Estate in fee tail.</p> <p>Where a marriage settlement made in 1808 creates a trust for the wife for her sole and separate use with power of appointment by will, and the wife who died in 1842, left a will by which she gave a ground rent in trust for her husband for life, then over in trust to a grandson “for his use during his life, and from and after her decease or his lawful issue then living” with a further provision that if the gift to the grandson exceeded her legal power of appointment, then to him in fee, and the grandson dies in 1915, leaving children, such children are not entitled to the ground rent, on the theory that their father was vested with an estate in fee tail under his grandmother’s will. The gift to him under the attempted exercise of the power was illegal as violating the rule against perpetuities, and he took under the other clause vesting in him a fee.</p> <p>The case is distinguished from Eiehelberger v. Bamitz, 9 Watts 447, because the will provides for a gift over in trust, and fixes a particular time when it should terminate (the death of the grandson), and specifies definite persons as a 'class to whom the estate should go (the grandson’s lawful issue then living).</p>

<p>Contract — Breach—Conflicting evidence — Case for fury.</p> <p>Where a company organizes an expedition- to sell by sample the goods of merchants in different parts of the world, and to receive a commission on such sales, and in its contract with particular merchants, it is provided that the merchant “agrees to advance” to the company one thousand dollars “against commissions,” and one of the merchants brings a suit to recover the amount of such an advance, it is reversible error for the trial judge to give binding instructions for plaintiff, where the evidence for plaintiff that the expedition was entirely abandoned and the contract never performed is absolutely contradicted by defendant, and where the evidence of the defendant that the plaintiff, had absolutely refused and neglected to furnish samples, although requested, is contradicted by the plaintiff. Such a case is for the jury.</p>

<p>Contract — Architect—Supervision of building — Collusion with contractor — Evidence.</p> <p>An architect impliedly contracts with his employer that he has the ordinary 'skill, knowledge and judgment possessed by men of his profession, and that he will use this skill, care and judgment in the interest of his employer, and will act with perfect honesty; and if a loss occurs from collusion between himself and the contractor, he is liable to his employer.</p> <p>In an action by an architect to collect an alleged balance due for preparing plans for a building, and supervising the construction thereof, it is proper to permit the defendant to show that the plaintiff through collusion allowed the contractor to depart from the plans without the defendant’s knowledge or consent, that a loss had resulted, and the amount of such loss. Such evidence, although contradicted, is for the jury.</p>

Appeal, No. 50, April T., 1918, by defendant, from order of O. P. Armstrong 06., June T., 1917, No. 13, dismissing appeal of defendant from affirmance by the Workmen’s Compensation Board of the finding by a workmen’s compensation referee in case of Joe Selva v. Allegheny River Mining Company. Appeal from affirmance of findings of fact by a workmen’s compensation referee.

<p>Insurance — Baggage insurance — Theft—Pilferage—Words and phrases.</p> <p>Where an insurance policy insures trunks and samples of merchandise “against any and all the risks and perils of fire, lightning, navigation and transportation,” and further “covers theft in transit of an entire shipping package, excluding all pilferage” and excluding the risk of “theft of samples of jewelry or similar valuables,” no recovery can he had for the theft of a fur overcoat taken from one of the trunks, although such coat had been placed in a canton flannel bag to prevent soiling, and for convenience in carrying for purposes of exhibition. The bag is, not a shipping package within the meaning of the policy.</p> <p>The word “pilferage” must be construed as having been used in the sense of filching; of taking a small part only, rather than the whole; of stealing privily.</p>

Appeal, No. 239, Oct. T., 1917, by defendant, from judgment of 0. P. No. 4, Philadelphia Co., June T., 1916, No. 1876, on verdict for plaintiff in case of Grocery World Publication Co. v. Ralph B. Clayberger, trading as C. Wilkinson’s Sons.

<p>Deeds — Boundaries—Metes and bounds — Monuments—Fence,.</p> <p>Where the owner of a city lot abutting front and back on two streets, and having a house built on both the front and back of the lot, executes two deeds to different persons on the same day for separate portions of the lot, and describes the dividing line between the two divisions of the lot by courses and distances, with 'the added words in one of the deeds “extending in length...... more or less,” a fence extending across tire lot near its middle, of a temporary .nature, and with nothing to indicate that it was intended to divide the lot into definite parcels, will not control the calls in the deed.</p> <p>The words “more or less” have been frequently construed as words of safety and precaution, intended to cover some slight or unimportant inaccuracy, not so gross as to justify a suspicion of wilful deception or mistake amounting to fraud, and of which the purchaser takes the risk as to quantity.</p>