text:
    July Term, 1883,
    No. 191.
    January 23, 1884.
    The People’s Passenger Railway Company v. Lauderbach.
    1. In an action against a passenger railway company to recover damages for personal injuries alleged to have been caused, by the negligence of the defendant company, to a passenger in the car of another railway company running in the opposite direction, there was evidence that the arm of plaintiff rested on the window sill of the car, and his fingers projected. The defendant company requested the Court to charge that “ if the plaintiff sat with his arm on the sill of the window, and suffered unconsciously his arm to slip out of the window, and he was injured, he cannot recover,” and also that if the position of the arm was the cause of the injury, or contributed to it, the plaintiff could not recover. The Court declined so to charge unless the jury should find that the contributory negligence was the proximate cause of the injury. Ildd, that these points should have been affirmed without qualification.
    2. Where a traveler puts his elbow or an arm out of a car window voluntarily without any qualifying circumstances impelling him to it, it must be regarded as negligence in se; and when this is the state of the evidence, it is the duty of the Court to declare the act negligence in law.
    3. The unconsciousness of the projection of the arm would not affect the legal result of the actual projection of the arm beyond the window.
    4. Pittsburgh and Connellsville Railroad Company v. McClurg, 6 P. F. Sm., 291, followed.
    5. The mere resting of the arm on the window sill without protrusion cannot be regarded in itself as an act of contributory negligence.
    6. Germantown Passenger Railway Company o. Brophy, 14 W. N. C., 213, followed.
    7. The loss of earning power is an element of damage which may be considered; but the loss of income, which means profits of a business fluctuating widely, and of possible profits in a special contract, cannot be regarded as a legitimate basis of recovery.
    Before Merour, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.

      Error to the Court of Common Pleas, No. 4, of Philadelphia/ County. ' •

    Case by James W. Lauderbach against The People’s Passenger Railway Company to recover damages for personal injuries. Plea, not guilty.
    On the trial in the court below, before Elcock, J., the following facts appeared:
    On Callowhill street, west of Twenty-third street in the city of Philadelphia, there are two passenger railway tracks, one owned and used by the Hestonville, Mantua and Fairmount Passenger Railway Company (commonly called the Race and Vine Street Company) and the other by the People’s Passenger Railway Company. The Hestonville company’s cars run west, and the cars of .the defendant company run east. West of Twenty-third street the tracks of these two railway companies are laid parallel and near together for a short distance. At the narrowest point the tracks are 11£ inches apart, and the cars moving in opposite directions could not pass at this point without the eaves of one rubbing and scraping the other.
    On July 26, 1880, plaintiff was a passenger in a car of the Hestonville company, which was proceeding out Callowhill street west of Twenty-third street. He was sitting sideways at the rear end of the car, with his left elbow-resting on the window sill and his hand up, grasping or resting against the upright window frame. The plaintiff testified that “the ends of my fingers might have been approaching towards the outside, but the thumb and hand were inside.”
    On cross-examination he said: “I can’t tell whether the ends of my fingers reached the outside or not.” * * “I am confident they did not project. No part of my hand or arm was outside.” * * * “I say they were inside, but they might have reached towards the outside.”
    William Osner testified that “his fingers were on the sill, with his hand resting on the upright — on the platform of this sill resting. He had to clasp with his thumb inside, and about that much outside,” (indicating.) Upon being recalled, witness said : “ It would not put them out, I don’t think, three eighths of an inch.”
    The car in which plaintiff was riding stopped to take on a passenger just before reaching the place where the tracks most nearly approach each other. Defendant’s car was standing on the other side of the narrow place. The driver of the car in which plaintiff was riding was called by plaintiff, and testified that the defendant’s car started after he had got into the narrow place. 1
    In passing, the two cars scraped against each other, the eaves of defendant’s car leaving a scratch under the eaves of the other from the third window clear back. The jar or shock of the collision threw plaintiff’s hand out, which was caught between the two cars and drawn further out, and the arm received several blows from the window frames of the passing car, breaking it above the elbow.
    Plaintiff was an engraver ; and, by reason of this accident, was unable to do any work until six months after-wards. His arm is still weak, and he is unable to steadily apply himself to his work as he had done before the accident occurred.
    The testimony was that he was a very skillful engraver; that he was able to earn from his own personal labor $5,000 per annum ; that from his personal labor between July, 1880, and July, 1881, he derived only $600 ; that his loss in his general business, because of his inability to attend to it, was $1,800 ; and that his expenses for medical attendance, &c,, amounted to $500 or more.
    Plaintiff’s counsel asked the plaintiff the following question:

      Q. Hid the accident cause any loss of income up to the present time, and if so, please state what income yon lost thereby. [Objected to. Objection overruled. Exception for defendant.]
    (First assignment of error.)

      A. A very considerable loss. I will tell it in my own way. I can tell you by telling what my income has been from my book before the accident, and what it has been since.

      Q. Tell us without giving it from your books if they don’t want to see them, and don’t want you to state it. Tell us what income you have lost in consequence of this accident up to the present time.

      A. I have made as high as $10,500 in my business. I have averaged, say in five years, an income of over $7,500. My personal labor is worth $5,000 a year. After the accident — I count five months, say the accident occurred on the 26th of July, I say from the 31st of July, five months, I made nothing. The year from the 31st of July, 1880, to the 31st of July, 1881, I made $600.

      Q. Was that out of your own labor?

      A. My own labor.

      Q. Instead of $5,000, which you would have made ?

      A. Yes, sir.
    Also the further questions:.

      Q. Had you any contract or engagement for engraving on hand which you were unable to perform in consequence of this accident, or not ?
    (Objected to. Objection overruled. Exception for defendant.)
    (Second assignment of error.)

      A. Yes, sir; I had a running contract, a very valuable one, all the work I could do for I). Appleton & Co.,.New York, on a work entitled, “Picturesque Palestine;” all I could possibly do. All my work is of a personal character. I have to handle all my own work myself.

      Q. That was a running contract. Were you able to carry that out ?

      A. I did, by doing a diminished quantity. I kept it going, of course. I aid the best I could. When I was home I directed my business as well as I could, and when I got to the office.

      Q. Did you lose anything in that contract by reason of this accident ? If so, how much %

      A. That involved the largest amount of work I was doing for two years. That work lasted for fully two years. I was engaged in it at the time of the accident and fully two years afterwards all I could do.
    And the further question:

      Q. What was your loss by reason of the interference of that contract ?
    (Objected to. Objection overruled. Exception for defendant.)
    (Third assignment of error.)

      A. Over $5,000 the one year — for one year over $5,000.
    No witnesses were called for the defendant. The Court thereupon charged the jury, inter alia, as follows :
    “This accident is said to have occurred at that particular point by collision or rubbing together of the two cars, one on each of these roads. The plaintiff, you will understand, was a passenger, who got on at Third and Vine streets and rode out to this particular point in the car. He was seated on the end seat on the south side of the car, with his left hand against the window sill, or against the window upright, or the division between the two windows of the car. His hand, he says, was in the position with his thumb inside and his hand resting against the upright. [One of the witnesses testified that his fingers were projecting — the tips of his fingers were projecting on the outside of the car — and just at that point I want to call your attention to the fact as to whether it was possible for that man to see the condition of the lingers at that time. He says that he was on the front platform of the car with the driver, and that seeing the car approaching this narrow point — either for that or for the purpose of looking at a lady and gentlemen who were inside of the car, and it is not very clear what his object was — he went to the center of the car, and that by that means he could observe the condition of the man’s hand against the upright. Now, whether any one standing in the center of the car could observe whether the man’s fingers were outside or not is a question which I leave to you in connection with the balance of the case — whether it was possible for him to see that.] * * * *
    In order that you may reach a conclusion, it is proper for you to consider the position of these cars. There was no rule or regulation of these companies — at least in evidence — going, to show by what mode this narrow point was to be crossed. [There was no rule compelling them to stop at any given point, or to regulate their passing that point in any mode whatever. It is, therefore, required by the law that it shall be done in an ordinary, reasonable, and prudent manner. Now, what that was you must judge from the evidence; and as you judge from the evidence you will settle the degree of negligence in this case, and which party is accountable.] * * *
    [If the Race and Yine Street car had started and got to such a point on that narrow passage-way that it would have been likely that the car of the People’s Passenger Railway would have struck or touched -the car which was then going north towards Fairmount — the Race and Yine Street car — then it would be negligence on the part of the defendant’s driver to run his car, or start it at that time, because it would not be reasonable and prudent care in a man to drive his car against the car of any other company, or against the Race and Yine Street car, if it had'got to that point.] Hence, if the car of the People’s Passenger Railway had started first, and before the Race and Yine Street car had started, then it would have been the duty of the Race and Yine Street car to have pulled up and have allowed the other one to pass along. It would not have been reasonable and prudent care, nor would it have been that extraordinary degree of care required of the carrier.of a passenger, to go to such a point as that and run the risk of passing with his car with passengers in it, when he knew the other one had started. Therefore, the real point in the case comes down to that — as to which of the parties was responsible for that negligence.
    The law of the road, even driving in a wagon, is that if a man gets in a narrow cut or passage-way, the parry approaching him must stop in order to let him out. In the same way it would require a man who was approaching such a dangerous point, in such a narrow cut or passageway, to observe ordinary, and even, in carrying passengers, extraordinary care in reaching such a point and passing it. [Therefore, you are to deduce from the evidence, and to weigh the evidence pretty closely, as to that little point of time, and that little point of space, in which these two cars passed each other, to see -whose duty it was to stop before they got there. Whoever’s duty it was to stop would be guilty of negligence if they passed the point, and that is the degree of care which would be required of both these parties, and you must say now, under the circumstances and under the evidence in this case, which of these parties was guilty of that negligence.] And I say to you, if the Race and Yine Street car was guilty of negligence in going on as they did — guilty of that want of extraordinary care in carrying this plaintiff —then the.plaintiff cannot recover of the People’s Railway.
    On the other hand, if the People’s car started in an improper time and in an improper manner, and after the car of the Race and Yine Street road had got so near, or into this narrow passage-way, then it would be such a want of ordinary care as would make them liable for the negligence.
    It gets down, therefore, to that particular narrow point, and you must weigh all the testimony in the case in considering this question. You will take not only the testimony of the plaintiff and weigh it carefully as to the probabilities of his hand being in the position in which it was, and as to his position, and the cause of the accident, [but you will also- examine the plan of this road, and say, in connection with all the other evidence, (because that is part of the evidence,) what the rule of safety would be in passing this point. You are to make it, because there is no other rule or regulation of the companies or parties here by which it can be made.] * * * *
    [Therefore, I leave it to you to say whether, under the evidence in this case, the plaintiff, by his act of putting his hands or fingers in this way, if he did so, was guilty of contributory negligence.] If he was, and that contributory negligence was the proximate cause of this injury, then he cannot recover. You will understand by that that the proximate cause of the injury is the direct cause, and not a remote one, because if it was only a condition of the accident, and not the direct or proximate cause of it, then that would not affect the rule at all, and he would be entitled to recover, because a .remote contribution to the injury would not entitle the defendants to avail themselves of the rule of contributory negligence.
    Now, as I have said to you, the measure of duty on the part of the passenger is that of ordinary and reasonable care on his part. He is bound to exercise ordinary and reasonable care about the way in which he manages his person in the car. If he is guilty of want of reasonable arid prudent care — that is, such as a prudent man would take under ordinary circumstances, that would be contributory negligence, and would come within the ground of proximate cause, and he could not recover. [You will, therefore, say whether under, all the circumstances, a reasonable and prudent man would have placed his hand in this condition where it would be liable to be struck by passing vehicles, or in consequence of a collision with anything upon the road, and that would be the ground upon which you approach the doctrine of proximate cause.] * * * * * *

    If you find in favor of the plaintiff, the rule of. damages will be that he would be entitled to recover what you shall think would be a proper reward to him for the pain and suffering which he has endured in consequence of this accident, and you would add to that the expenses which he has been put to in consequence of endeavoring to be cured of the injury which he suffered — that is, medical attendance, attendants or nurses, and medicine and other things which he was obliged to use while being cured of the injury which he suffered. Thirdly, you can add to it, if you find it so, the loss occasioned by the individual loss of his ordinary labor. You are not entitled to give him what he might make by speculative business, or what he might make in consequence of contracts, or things which he might have received, or anything else of that nature, but you are to give him what was actually suffered by the loss of his individual ordinary labor — his regular labor or profession.
    The defendants are not liable for anything resulting from his nervous condition, or his prior ill-health, or any weakness of his constitution which was in existence, prior to or at the time of the accident. He cannot recover for anything consequent upon that.

      There is no evidence in this case, I think, going to show that this was a permanent injury. In,-fact he admits himself that his arm is as good now as it ever was, and I do not think there is any evidence by the physicians and surgeons on either side of the case going to show that it was anything more than a temporary injury, and the pain and suffering were merely temporary; that nothing followed, unless you find that the injury produced a nervous shock and nervous prostration which had not existed prior to the time of the accident. If it had not existed, and this injury produced it, that would be one of the results, and he would be entitled to recover for the loss produced by that nervous prostration and that continued weakness of his system, but not if there had existed before, or that he was.liable to ill-health, or anything of that kind prior to the time of the accident. Your, damages, therefore, should not be speculative at all. They-should be simply compensation for the injury which has been suffered within the three heads that I have laid down to you: First, as to the pain and suffering; second, as to the expenses ; and thirdly, as to the loss of business, within the rules which I have stated.”
    Defendants’ counsel submitted certain points for charge, which, with the answers thereto, are, inter alia, as follows :

      {'■‘‘Fifth. If the plaintiff sat with his arm on the sill of the window, and in consequence, when the cars rubbed against each other, it was protruded from the window and was injured, he was guilty of contributory negligence, and he cannot recover.”]
    I decline to say that, as a question of law.
    (Twelfth assignment of error.)

      {“Seventh. If the plaintiff sat with his arm on the sill of the window, and suffered unconsciously his arm to slip out of the window, and he was injured, he cannot recover.”]
    I decline to say that, unless you find it the proximate cause of the injury.”
    (Fourteenth assignment of error.)

      {“Eighth. If the position of the arm on the window sill was the cause of the injury, or contributed to it, plaintiff cannot recover, and the verdict should .be for defendant.” J -
    I affirm that, if it was the proximate cause of the injury.
    (Fifteenth assignment of error.)

      {Tenth. If the evidence shows contributory negligence on the part of the plaintiff he cannot recover, and the verdict should be for defendant.]
    I decline that unless it was the proximate cause of the injury. If the evidence shows that contributory negligence was the proximate cause of the injury then the plaintiff cannot recover.
    (Seventeenth assignment of error.)
    May 15, 1883, verdict for plaintiff for $9,000, upon which judgment was afterwards entered.
    Defendant then took out a writ of error, assigning, inter alia, the errors above set forth, and those parts of the charge inclosed between brackets.

      Francis F. Brewster and Samuel Gustine Thompson for plaintiff in' error.
    There is no evidence of a collision of sufficient violence to throw plaintiff’s arm out of the window. Such an accident could only occur in case of exposure of the person out of the window, in consequence of which the part exposed would be injured. The position of the arm was the cause of the accident, and amounted to contributory negligence : Pittsburgh and Connellsville Railroad Company v. McClurg,6P. F. Sm., 295; Railroad Company «.Hoosey, 3 Out., 499. Where the position is one of risk, and leads to the accident, it is contributory negligence. There can be no difference in exposing one’s person to danger whether in a car or out of it: Railroad Company v. Langdon, 1 Am. & Eng., R. R. Cas., 95; Downey v. Hendrie, 8 Id., 387; Todd v. R. R. Co., 7 Allen, 207; R. R. Co. v. Rutherford, 7 Am. L. Reg., N. S., 477; Ward v. Central Park R. R., 1 Jones & Spencer, 396; Clark *. R. R., 36 N. Y., 135; Solomon v. Central Park Co., 1 Sweeney, 301; Baxter v. R. R. Co., 3 Robt., 510; Willis v. R. R. Co., 32 Barb., 399 ; Hickey v. R. R. Co., 14 Allen-, 429 ; Quinn v. R. R. Co., 51 111., 498 ; Baltimore R. R. Co. v. Wilkinson, 30 Md., 225; R. R. Co. •». Clemmons, 55 Texas, 88; R. R. Co. r>. Jones, 5 Otto, 443.
    As. plaintiff was not a passenger on defendants’ car, there is no presumption of negligence. He must prove it affirmatively: Reading v. Hummell, 8 Wr., 377; Baker v. Fehr, 10 W. N. C., 57; Gfoshorn ». Smith, 8 Id., 290; R. R. Co. v. Schertle, 1 Out., 457. The charge of the Court was erroneous in that it substantially left to the jury to determine what in law constituted negligence: Heil v. R. R. Co.. 5 W. N. C., 93.
    The mere fact that the cars rubbed each other in passing was not negligence. There was no duty on the part of the defendant to stop, there being no danger to passengers unless they placed themselves in exposed positions : Heil ». R. R. Co., supra.

    Where an injury occurs in consequence of mutual negligence of the two companies, the liability must be borne by the carrier: Lockhart v. Lichtenthaler, 10 Wr., 151; R. R. Co. v. Boyer, 1 Out., 100.
    Speculation about business, and speculation upon contracts in that business, cannot be made the basis of plaintiff’s claim for damages.

      John G. Johnson for defendant in error.
    The claim for damages was not speculative, because if the accident had not occurred, the plaintiff would have earned a certain income from a special contract. The rule is compensation. Will the equivalent of his personal labor compensate a man who, at the time he was injured, had on hand a contract, even though he would have required the assistance of his workmen, from which he would have derived a large profit which he was compelled to relinquish? In this case, however, the contract was for personal labor. It was gross negligence for a car driver to start his car when a collision with a car so placed that it could not escape being struck was inevitable. The jury found that' the position of plaintiff’s fingers did not contribute to the injury. There is no relevancy in the citations of cases which hold that a passenger, permitting his hand or arm to project from a window, who is struck by some outside object, cannot recover. What possible injury ought a passenger anticipate from his fingers being clasped around the window frame?
    The Court, in charging the jury that if the position of the fingers was not the direct or proximate cause of the accident, it was not contributory negligence, followed Boudrou n. Passenger Railway Company, 92 Penna , 480; Todd v. R. R. Co., 7 Allen, 207.
    There could have been no rubbing of the cars together without negligence. As there was no evidence that it was the duty of one of the parties to stop, it was certainly for the jury to say which of them was negligent; and the party negligent in passing was the one to be held liable. The negligent driving, and not the position of the hand, caused the accident.
    March 31, 1884,
   the opinion of the Court was delivered by

Green, J.:

The charge and answers of the learned judge of the court below were in the main correct, but we think there was error in some of the answers, and in the action of the court upon the subject of damages, to such an extent as to require a reversal. We refer more particularly to the answers to the defendant’s seventh, eighth, and tenth points, covered by the fourteenth, fifteenth, and seventeenth assignments. The seventh point was in these words : “If the plaintiff sat with his arm . on the sill of the window, and suffered unconsciously his arm to slip out of the window", and he was injured, he cannot recover.” The answer was : “I decline to say that, unless yon find it the proximate cause.” The point was slightly faulty in not associating the projection of the arm and the injury more closely, as, for instance, by introducing the words “in consequence,” after the word “injured,” but such was its substantial meaning, and it was evidently so regarded both by the counsel and the Court. This is illustrated by the phraseology of the eighth and tenth points, both of which present in express words the idea that if the position of the arm was such as to occasion-the injury, the plaintiff w"as guilty of contributory negligence and could not recover. These points were all answered alike, to the effect that the hypothetical fact in each instance would not debar a recovery unless it was the proximate cause of the injury. In our judgment, the points should have been affirmed without qualification. The points called for a purely legal determination of the effect of a given fact, which w"as in itself of such a character as to require such a disposition. To say that the legal result would depend upon the remoteness or proximity of the assigned cause to the actual effect, was simply to decline an expression of the legal effect of the suggested fact and pass it over to the jury, where it did not belong. If some other part of the plaintiff’s body, which remained inside the car, had been injured, and not the arm, the answer of the court would have been apposite. For then á true question of remoteness or proximity would have arisen. But here it was the protruded arm itself which was injured, and by the hypothesis of the point the arm was in an unlawful place. It was outside or 'beyond the car, or, according to the eighth and tenth points, its position was the contributing cause of the injury. In either case, there was no room for the interjection of a possible remoteness or proximity of cause to effect between the specially assigned cause and the necessary direct and immediate effect flowing from it. The only qualifying suggestion of either of the points was the unconsciousness of the projection of the arm appearing in the seventh. That circumstance, however, would not affect the legal result of the actual projection of the arm beyond the window. Whether done consciously or unconsciously, it was without right as against the carrying company. This very subject was expressly ruled in Pittsburgh and Connellsville R. R. Co. v. McClurg, 6 P. F. S., 294, on p. 299. Thompson, C. J., says : “Unconsciously exposing himself did not help the plaintiff’s case, as it was not shown that this unconsciousness was not the result of a want of prudent attention to his situation on the part of the plaintiff.5 ’ The case also ruled absolutely the proposition that where a traveller put his elbow or an arm out of a car window, voluntarily without any qualifying circumstances impelling him to it, it must, be regarded as negligence in se; and when that is the state of the evidence, it is the duty of the court to declare the act negligence in law. We. have no disposition to change the rule thus stated, and for that reason must consider the qualified answers to the seventh, eighth, and tenth points of the defendant, in the present case, as erroneous. We would say the same as to the answer to the fifth point covered by the twelfth assignment, if the protrusion of the arm were averred as an independent fact, but the point is so framed as to render it uncertain whether the protrusion was the result of the rubbing of the cars together, or was the voluntary act of the party. On the question as to the effect of the mere resting of the arm on the window sill without protrusion, our recent decision in the case of Germantown Passenger Railway Company v. Brophy, 14 W. N. C., 213, determines that it cannot be regarded, in itself, as an act of contributory negligence, hence no discussion of that subject is needed here.

On the question of damages, the Court charged the jury quite correctly, stating the elements proper for their consideration. Especially they said that loss of ordinary labor of-the plaintiff might be allowed for, but not what might be made by speculative business or in consequence of contracts entered into with others. All this was entirely correct, yet proof was admitted, under objection and exception, of loss of income from the plaintiff’s business as an engraver, and also from inability to make as much as he otherwise might have made out of a certain running contract for engraving with D. Appleton & Co. Under the rulings which permitted this proof, the plain.tiff testified that he employed others to assist him in his business; that his income from his business was as high as $10,500 in one year, and as low as $2,800 in another, and that it averaged annually, for five years, over $7,500. He also testified that on the contract with Appleton he lost over $5,000 during one year on account of the accident, though he also said he was engaged on the contract fully two years after the accident, doing all he could do. We think all of this testimony was objectionable and should not have been received. It was said by the judge, in his charge, that there was no evidence to show that the injury was permanent, and. that the plaintiff admitted that his arm was as good as it ever was, and it was not pretended that there was a permanent loss of earning power. It was proved that the highest wages paid to the most skillful engravers did not exceed about $40 per week, and yet a verdict was recovered for $9,000, the time of plaintiff’s enforced abstinence from work being less than six months. In view of the testimony of an objectionable character which was admitted, it is quite possible the minds of the jurymen may have been unduly affected, notwithstanding the cautionary language of the charge. It was quite proper to prove the loss of earning power, as that is an element of damage which may b.e considered, but the loss of income, which means profits of a business fluctuating so widely, and of possible profits on a special contract, cannot be regarded as a legitimate basis of recovery. We, therefore, sustain the first, second, and third assignments, and on these and the fourteenth, fifteenth, and seventeenth assignments,

The judgment is reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    July Term, 1883,
    No. 189.
    January 23, 1884.
    Peters v. Wainwright et al.

    Where the defendant represented to the plaintiff that he had moneys in his hands belonging to a debtor of the plaintiff, and agreed to pay the debt out of such moneys, whereby plaintiff was induced to continue to furnish goods to the debtor, he cannot relieve himself from the obligation to pay the debt by proving that he did not have the moneys at the time of the promise or afterwards.
    Before Merche, C. J. ; Gordon, Paxson, Trun key, Steerett, Green, and Claek, JJ.

      Error to the Court of Common Pleas, No. 1, of Philadelphia County.

    Case by Chandler P. Wainwright and Willis T. Bryant, copartners, trading as Wainwright & Bryant, against James Peters.
    The declaration was in assumpsit, and averred an agreement by defendant to pay plaintiffs $270, provided plaintiffs would sell one Miggett lumber, that plaintiffs did sell Miggett lumber, whereby, &c.; it also averred that defendant had received for the use of Miggett $10,000, and Miggett, being indebted to plaintiffs, ordered defendant to pay plaintiffs $270, which defendant promised to do.
    Plea, non assumpsit.

    On the trial before Biddle, J., the following facts appeared :
    William Miggett, a builder by occupation, in 1879, was engaged in erecting a row of houses on Somerset street, in Philadelphia. ITe contracted with the plaintiffs, who are lumber merchants, for the lumber required, he to pay them $135 cash as soon as they should furnish him $150 worth of lumber. He continued these payments for some time, but in February, 1880, he was in arrears for two payments, and plaintiffs refused to furnish him any more lumber. About the same time he sold, through Peters, the defendant, five of the houses for $1,000, and received $100 on account. He informed Peters of plaintiffs’ refusal to furnish more lumber, and Peters and Miggett then went together to plaintiffs’ office. The following is Miggett’s account of what took place there: “We went together ; Peters knew Wainwright; they needed no introduction ; Peters told Wainwright he had balance of money for these houses, and whenever title was perfected for these houses, he would pay them the two back payments of $135 each. That terminated the interview. Upon the strength of this, Wainwright agreed to furnish the lumber.”
    Wainwright, one of the plaintiffs, testified as to the same interview, as follows: “Peters said to me that he had sold five houses, and had the money in his possession at that time, and that as soon as purchaser received title, he would pay the money, there would be no trouble about it. I would get my money. I went on and furnished lumber under my contract on strength of that promise.” The title to the five houses was perfected to the purchaser, and passed on July 9, 1880.
    James Peters, the defendant, gave the following testimony: “Mr. Miggett called on me to go down to Wainwright’s. Mr. Miggett told Wainwright that he had sold five houses, and as soon as title was perfected he would get some money. Mr. Wainwright asked him where he would get it from, when Mr. Miggett turns and tells him I had the money. I had it, and I had it not, I kept quiet. I said if there is any money left after paying lien creditors he should have it, meaning Miggett. I had no right to pay Wainwright. I don’t remember telling Wainwright-I had the money in my hands. When I say I had it and had it not, I mean this: I was treasurer of a building society. One of the gentlemen in the building society I prevailed on to buy the houses. The purchaser was to get the money out of the building society, but he could not get it until he had an'order signed to get the money from the society.”
    The following questions were asked the witness by his counsel:
    “When, if at any time, did you get any of this money in your hands ?’ ’
    “You having said that you did not say to Wainwright that you had this money in your hands, was it true in point of fact that you had?”
    “Did you at any time before or after the perfection of the title to these five houses receive the consideration therefor ?”
    Objected to. Objection sustained. .Exception.
    (Second assignment of error.)
    "Verdict for plaintiffs, $321 97, and judgment thereon ; whereupon, defendant took this writ, assigning for error, inter alia, the overruling of the above questions.

      E. Cooper Shapley for plaintiff in error.
    The declaration merely puts in issue the existence of a fact, viz: That defendant had in hand money of Miggett, and, therefore, promised to pay. Plaintiffs made an attempt to show this fact, but failed. When defendant attempted to show the contrary, the offers were overruled on the ground that plaintiffs had shown that defendant said he had the money. If this ruling is to stand, all that a plaintiff need do is to declare as to a fact, produce evidence, whether true or false, that defendant once admitted the fact, and thus bar defendant from showing that the alleged fact is not true.

      S. Edwin Megargee and James W. Latta for defend-. ants in error.

      The uncontradicted evidence being that Peters said he had the money, it is immaterial whether he had it or not.
    The rule is thus stated by Lord Denman: Where one by his words or conduct willfully causes another to believe in the existence of a certain state of things,, and induces .him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time:” Pickard ». Sears, 6 A. & E., 469 ; Calder v. Chapman, 2 P. F. S., 362; Green’s Appeal, 1 Out.., 342; Covert v. Irwin, 3 S. & R., 283 ; Hall v. White, 3 Carr & Payne, 136 ; Dock v. Bovd, 12 N., 92; Wharton on Evidence, § § 1136, 1142, 1086, 1087.
    February 4th, 1884
   Per Curiam :

There was no error in rejecting the evidence offered. The controlling question was not whether there was in fact money in the hands of the plaintiff in error, but did he represent and declare to the defendants in error there was, and thereby induce them to part with their lumber and continue to furnish it. If he did, he must be held to his agreement to pay. The jury have found he did so declare and agree. Having, then, in an interview between the parties and Miggett, and by the consent of the latter, assumed the" obligation which would be binding on him if he actually had the money, he cannot relieve himself from that obligation by proving he had not.

Judgment affirmed.


text:
    January Term, 1884,
    No. 73.
    February 1, 1884.
    Storey’s Appeal.
    1. The personal estate of a decedent must first be applied to the payment of his debts unless the contrary be directed by the testator in .express words or by clear and manifest intention.
    2. Testator first directed that “all my just debts and funeral expenses be fully paid and satisfied by my executrix.” After giving certain specific articles to his stepson, he gave to his wife “all the rest- and residue of my personal estate, whether the same be moneys in my house or in bank or invested in stocks, bonds, or mortgages, or con sisting of my household goods.” Held, that this general reference to the kind of property he possessed did not destroy the residuary character of the devise, and that therefore the widow cannot, as against the debts of the testator, take the personal estate discharged from their payment and cast them on the real estate.

      Before Merctjr, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Appeal of Ann Storey, widow, and executrix of the last will and testament of John Storey, deceased, from the decree of the orphans’ court of Philadelphia County.

    At the audit in the court below before Hanna, P. J., the following facts appeared:
    John Storey died November 6, 1881, having made his last will and testament, dated October 25,1881, which provided as follows:

      '■'■Imprimis: I direct that all my just debts and funeral expenses be fully paid and satisfied by my executrix, hereinafter named, as soon as may be conveniently done after my decease.-

      Item 1. — I give, devise, and bequeath unto my stepson, George F. Adams, for his sole use and benefit, all and singular my books, engravings, photographs, photographic instruments, and oil paintings.

      Item %. — I give, devise, and bequeath unto my beloved wife, Ann Storey, (formerly Ann Adams,) for her sole use and benefit, all the rest and residue of my personal estate, whether the same be moneys in my house or in bank, or invested in stocks, bonds, or mortgages, or consisting of my household goods.

      Item 3. — I give, devise, and bequeath unto my dear wife, Ann Storey, for and during the term of her natural life, in lieu of her dowTer, if she should so elect, all and singular my lands, tenements, hereditaments, wheresoever the same may be situate ; and from and after her decease, I give, devise, and bequeath the same (or the proceeds thereof, should any part of my said real estate be sold by my executrix, as hereinafter provided.) unto my heirs-at-law, in fee simple, share and share alike. And it is my will and desire that my said wife shall have full power and authority to sell all or any part of my said real estate, should she deem such a course advisable, provided she shall invest the proceeds thereof in other real estate, or real estate securities, she to take the income of said re-investments for the term of her life, with remainder to my heirs-at-law, share and share alike, my will and intention being that my said wife and my heirs-at-law shall respectively be vested with the same interests in the proceeds of such sale or sales of my real estate, should any such be made, as they would respectively take in the same under my will if no such sale or sales were made.
    And lastly, I do hereby nominate, constitute, and ap. point my beloved wife, Ann Storey, to be the sole executrix of this my last will and testament.”
    The executrix filed an account claiming a credit, inter alia, as follows:
    “By amount of goods, chattels, and moneys bequeathed to the widow of the decedent, and charged in the inventory, amounting to $568, and showing a balance due accountant of $307 25.”
    The auditing judge, Hanna, P. J., found as follows:
    “The widow has not sold any portion of the property included in the inventory, but has retained the same, excluding the articles specifically bequeathed to her son, at the appraised value. She m nst account for the same as cash, and not retain the articles at their appraised value, as if specifically bequeathed to her. They were not thus bequeathed to her, but she is given only the ‘residue’ of the personal estate; that is, what remains after the payment of debts and the settlement of the estate.
    The credit claimed by the accountant for $568, the appraised value of. the goods, chattels, and other personal estate, is accordingly disallowed.”
    Counsel for the executrix and widow filed exceptions to this adjudication; which were subsequently dismissed by the court. v
    The widow and executrix then appealed, and assigned as error the finding of the court below and the refusal to hold that the real estate was alone liable for the payment of the debts of decedent.

      William Hopple, Jr., for appellant.
    The words ‘ ‘ rest and residue ’ ’ mean that which remained after the specific bequest to the stepson, and not that which remained after the payment of the debts and the settlement of the estate: Brownfield’s Estate, 8 Watts, 465 ; Diehl’s Appeal, 12 Casey, 120; Brightly’s Dig., p. 1607; Copia’s Estate, 5 Phila., 214.
    A legatee of specific chattels is entitled to them, clear of the testator’s debts, which are payable out of the residue : McLaughlin v. McGrlaughlin, 12 Harris, 20. There is no residuary legatee in this will. Money in my house is a specific legacy.

      William A. Gris singer for appellees.
    ' The personal estate must first be applied to the payment of decedent’s debts, unless the contrary is expressly directed by testator: Ruston v. Ruston, 2 Yeates, 63; Todd v. Todd, 1 S. & R., 452 ; Martin ■». Fry, 17 Id., 426.

      The direction to pay the just debts indicates the intention that all succeeding general devises and bequests were to be subject to such payment.
    A general bequest of all testator’s personal estate, enumerating the various items, is not a specific one, so as to exempt it from the payment of debts : Walker’s Estate, 3 Rawle, 229 ; Todd v. Todd, supra.

    The words “all the rest and residue,” after a direction to pay the debts and after a specific legacy, preclude the idea of a specific legacy.
    February 11th, 1884.
   Per Curiam :

The personal estate of a decedent must first be applied to the payment of his debts, unless the contrary be directed by the testator in express words, or by clear and manifest intention. In this case, the testator first directed that all his debts be paid by his executrix. Then, after giving certain specific articles to his stepson, he gave to the appellant “all the rest and residue ” of his personal estate, whether it consisted of money in his house or in bank, or invested in stocks, bonds, or mortgages, or consisting of his household goods. This general reference to this kind of property he possessed did not destroy the residuary character of the devise. Thus holding, she cannot, as against the debts of the testator, take the personal estate discharged from their payment, and cast them on the real estate.

Decree affirmed and appeal dismissed at the cost of the appellant.


text:
    July Term, 1883,
    No. 52.
    January 16, 1884.
    Williams v. Elliott et al.

    1. The parties, having submitted their case to the decision of the court, under act of 22 April, 1874, dispensing witli a trial by jury, agreed that certain facts specified should be ‘‘ accepted in the trial as if duly proven, either party reserving the right to object to the admissibility of any one .or more of them as evidence in the cause, and without prejudice to the right of either party to a writ of error to the Supreme Court.” Held, that this destroyed the character of the agreement as a case stated, and required a bill of exceptions, as in other cases, to bring the case before the Supreme Court for review.
    Before Mercur, C. J.;. Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.

      Error to the Court of Common Pleas, No. 1, of Philadelphia County.

      Assumpsit by Mary Elliott, William J. Elliott, Catharine C. Elliott, Mary E. Elliott, and Sarah. J. Elliott, executors under the last will and testament of William Elliott, deceased, late sheriff of Philadelphia county, to the use of J. Alexander Simpson, to the use of Alexander Simpson, Jr.-, against J. Preston Williams.
    The case was submitted to the court under the act of 22 April, 1874, the parties dispensing with a trial by jury.
    The following is the statement of facts so submitted:
    And now, to wit, June 12, A. D. 1882, it is agreed between counsel for plaintiffs and defendant that the following facts be accepted in the trial of the cause as if duly proven, either party reserving, however, the right to object to the admissibility of any one or more of them as evidence in this cause, and without prejudice to the right of either party to a writ of error to the Supreme Court.

      First. That on the 12th day of March, A. I). 1849, Joseph R. Flanigen purchased the premises No. 121 South Eighteenth street, in the city of Philadelphia, and his deed therefor was duly recorded in deed book G-. W. C., No. 46, page '453, &c.; the consideration therein expressed being the sum of $1 and a reserved ground-rent of $68 per annum.

      Second. That on the 30th day of May, A. L. 1850, the said Joseph R. Flanigen mortgaged said premises to Benjamin R. Miller to secure the sum of $1,500, said mortgage being duly recorded in mortgage book Gr. W. C., No. 20, page 197, &c.

      Third. That on the 11th day of June, A. D. 1850, the-said Benjamin R. Miller assigned said mortgage to Benjamin M. Feltwell, who, on the 3d day of May, A. D. 1851, assigned the same to Mary Roberts.

      Fourth. That on the 5th day of February, A. D. 1870, a scire facias was issued on the said mortgage by the said Mary Roberts in the old district court for the city and county of Philadelphia, as of December term, 1869, No. 2855, and judgment duly obtained thereon in the sum of $1,613 00, on the 26th day of February, A. D. 1870.

      Fifth. That a levari facias was duly issued as of June term, 1870, No. 907, when, by agreement with the plaintiff therein, the arrears of interest dne upon said mortgage and the sheriff’s and plaintiff’s costs were paid, and said writ of levari facias was stayed by plaintiff's attorney.

      Sixth. That all the interest thereafter accruing upon said mortgage was paid when and as the same fell due, up to and including the six months that fell due upon the 30th day of May, A. I). 1875.
    Seventh. That on the 10th day of January, A. D. 1876, said mortgage was assigned by Mary Eoberts to J. Preston Williams, the defendant in this case, the consideration thereof being the face of said mortgage, and the interest then due thereon, to wit: from the 30th day of May, A. D. 1875.

      Eighth. That on the 24th day of January, A. X). 1876, an alias levari, facias was issued by the said defendant upon the judgment theretofore recovered on said mortgage, and said premises were sold by William Elliott, the then sheriff, to the said defendant, for the sum of $4,000, and his deed therefor, dated the 11th day of March, A. D. 1876, was duly recorded in sheriff’s deed book, No. 44, page 164, &c.

      Ninth. That at the settlement with the sheriff of the purchase money of said premises on the 9th day of March, A. D. 1876, the said defendant receipted to the said sheriff for the sum of $2,110 58 on account of said judgment, and $8 on account of said costs, and said sums of money formed part of the consideration money of $4,000 for the sale of said premises. At that time but $1,500, with interest thereon from the 30th day of May, A. D. 1875, was then due, and all the said costs had been paid.

      Tenth. That the said William Elliott departed this life on the 29th day of October, A. I). 1880, having first made and published his last will and testament, which was duly proven and registered in the register’s office for the county of Philadelphia in will book, No. 99, page 301, wherein and whereby he appointed the legal plaintiffs herein to become his executors, to whom the register of wills duly granted letters testamentary.

      Eleventh. That on the 29th day of April, A. D. 1858, a judgment was duly entered in the old district court for the city and county of Philadelphia, D. S. B: Docket of March term, 1858, No. 445, against the said Joseph E.Flanigen, in favor of J. Alexander Simpson, on a bond and warrant of attorney for $2,000, conditioned for the payment of $1,000; dated April 2, 1858, payable one year after date.

      Twelfth. That on the 15th day of September, A. D. 1870, a scire facias to revive said judgment was duly issued, as of September term., 1870, No. 775, upon which
      scire facias judgment was duly entered on the 8th day of October, A. D. 1870, in the sum of $816 20.

      Thirteenth. That on the 29th day of November, A. D. 1873, another scire facias to revive said judgment was duly issued as of December term, 1873, No. 789,x upon which scire facias the sheriff made return of nihil habet.

      Fourteenth. That on the 10th day of February, A. D. 1851, the said Joseph E. Flanigen made, executed, and delivered a deed for said premises to William O. Flanigen, the consideration therein expressed being the sum of $2,000 ; said deed being duly recorded in deed book G. W. C., No. 99, page 431, &c.

      Fifteenth. That on the 7th day of April, A. D. 1865. the said William C. Flanigen et ux. made, executed, and delivered a deed for said premises to Elizabeth G. Flanigen, wife of the said Joseph E. Flanigen, the consideration therein expressed being the sum of $3,000; said deed being duly recorded in deed book J. T. 0., No. 168, page 304, &c.

      Sixteenth. That on the 17th day of January, A. D. - 1871, certain real estate situate in New Jersey was purchased from one Joseph E. Taylor by Mrs. Flanigen; that the entire consideration of said purchase was a purchase money mortgage of $5,000 given by Mr. and Mrs. Flanigen ; and that as collateral security they made, executed, and delivered a mortgage of $5,000, secured upon said premises, No. 121 South Eighteenth street, which said collateral mortgage was duly recorded in mortgage book J. A. H.,' No. 88, page 434, &c.

      Seventeenth. That on the 5th day of April, A. D. 1873, the said Joseph E. Taylor assigned said mortgage to George .W. Baugh, trustee of the estate of Catharine Gaw, deceased, and said assignment was duly recorded in mortgage book F T. W., No. 277, page 496, &c.

      Eighteenth. That the said defendant-, J. Preston Williams, was one of the securities of the said George W. Baugh, as trustee of the estate of Catharine Gaw, deceased.

      Nineteenth. That on the 29th day of February, A. D. 1875, the said George W. Baugh departed this life, and the defendant herein was duly appointed by the register of wills as administrator of his estate.

      Twentieth. That on the 5th day of June, 1875, on petition, the orphans’ court duly appointed the Fidelity Insurance, Trust and Safe Deposit Company trustees of the estate of Catharine Gaw, deceased, in the place and stead of the said George W. Baugh, deceased.

      Twenty-first. That on the 27th day of September, A. D. 1875, the defendant, as administrator of the estate of the said George W. Baugh, deceased, filed the account of the said George W. Baugh as trustee, and in said account claimed credit for the investment in said mortgage bf the $5,000 aforesaid.

      Twenty-second. That on the 13th day of June, A. X). 1876, the orphans’ court disallowed said credit, and surcharged the trustee with said amount, but allowed the interest upon said mortgage to be set off as against the income due the said Elizabeth G. Flanigen, who was one of the cestui que trusts in said trust estate. That it nowhere appears in said account that any credit is claimed on account of the receipt of any sum of money from the sheriff on account of said mortgage, nor is it mentioned in any way in the testimony taken during the pendency of said account.

      Twenty-third. That the defendant, as security for said George W. Baugh, trustee, was compelled to pay the amount of said investment in the $5,000 mortgage, together with the other funds of said trust estate to the new trustee, and said payments were made as follows: November 3, 1876, $3,000; January 13, 1877, $6,000; and December 29, 1877, $482 30; said sums being the entire principal of said trust estate as found by the orphans’ court to be due by the estate of the said George W. Baugh.
    The Court below, Allison, P. J., filed the following decision:
    “This case is submitted to the decision of the court under the act of April 22, 1874, the parties dispensing with a trial by jury.
    “The statement of facts which is hereto appended has been agreed on as if the same had been duly proved, the right of either party being reserved to object to the admissibility of one or more of them as evidence in the cause. Under this reservation, the plaintiff objects to the admission as evidence of the facts set out in paragraphs, from sixteen to twenty-three inclusive.
    “The objection is pressed on these several grounds. The action sounds in tort, and no set-off is allowable in actions of tort. The set-off is barred by the Statute of Limitations. The defendant has not complied with section 100 of rules of court in regard to notice of set-off.
    “ The defendant’s answer to these several grounds of objection on the part of the plaintiff is that he has not pleaded set-off, but ‘non assumpsit,’ which entitles him to give in evidence anything which shows that at the time the action was brought the plaintiff had no right to recover, citing, in support of his answer to the objection, the cases of Kennedy v. Perris, 5 S. & It., 394; Gaw «. Wolcott, 10 State R., 43. Both of these actions were actions of assumpsit, the pleas non assumpsit. In the first, it was held that- discharge as an insolvent could be given in evidence as an answer to plaintiff’s right to recover ; and in the second, which was an action for work and labor done, evidence of unworkmanlike and insufficient performance, it was held, could be set up to defeat a recovery by the plaintiff.
    “That the matters of defense., if admissible under the pleadings, is barred by the Statute of'Limitations, received no answer at the hands of the defendant.
    “The action is grounded on a payment by the legal plaintiff, acting in his capacity as sheriff, to the defendant of a larger sum of money than was due to the defendant, in settlement of his purchase for $4,000, of the property mentioned in the statement of facts, which had been purchased by the defendant under a judgment on a mortgage, ' of which, by assignment, he had become owner. The said payment was in the form of a credit, given to the defendant in said settlement, and for which he receipted to the sheriff, in the sum of $2,110 58, on account of his judgment, and $8 on account of costs, which formed a part ’ of the purchase money of $4,000. In the statement of facts, it is admitted that at that time there was due to the defendant no more than the sum of $1,500, the amount of the mortgage, with interest, from the 30th day of May, 1875. The .settlement was completed on the 9th day of March, 1876.
    “We are of the opinion that the right of the plaintiff is clear to recover back from the defendant, for himself, in his own right, or for the use plaintiff, to recover for himself, on the strength of the legal title of Elliott, the amount which, by mistake or in fraud of the rights of the sheriff, was wrongfully retained by the defendant and receipted for by him. It was not, as defendant argues, a mistake in calculation, but the credit was given on the claim made by the defendant, that the larger sum was due to him, instead of a smaller amount, and that this fact was, or ought to have been, within the knowledge of the defendant, at the time, is fairly to be inferred.
    “If it needed authority to support the right of the plaintiff to recover in this action, the case of McDonald v. Todd, 1 Grant, 17, is in point. ”
    “That the defendant’s attorney, in making claim for a credit on account of the $4,000, of $2,110 58, and $8 costs, instead of the sum of $1,500, with interest from 30th of May, Í 875, acted in ignorance of the fact that his demand exceeded so largely the amount actually due, is wholly immaterial. That he acted in good faith, no one who knows him will doubt; and this, also, he asserts, under the solemnity of his oath; but his client, the defendant, knew that more interest was claimed on his $1,500 mortgage than he was entitled to claim a credit for, and that in the settlement he gained an advantage, by withholding information from his attorney, which he had no right to take to himself, and this places the case squarely on the ground of fraud, so far as the defendant is concerned.
    “This conclusion renders inapplicable any defense which may be supposed to grow out of the facts contained in items of the agreement, from 16 to 23 inclusive, and requires that the objection to their admission as evidence in the cause should be sustained; the facts, therefore, on which the case is to be determined, are those embraced in paragraphs from 1 to 15 inclusive.
    “This conclusion requires us also to sustain the objection to the admission in evidence of the $5,000 mortgage of Joseph R. Planigen and wife to Joseph E. Taylor, and also the assignment of said mortgage by Taylor to George W. Baugh.
    “We think the objection to the admission of the proposed defense, that it is barred by the statute, is also well taken. The settlement with the sheriff was on the 9th of March, 1876, and pleas claiming set-off or defense under the plea of ‘non assumpsit,’ were not filed until the 5th of April, 1882.
    “And now, December 27, 1882, it is ordered that judgment be entered in favor of the plaintiffs, in the sum of $548 50, with interest from the 9th day of March, 1876, making together the sum of $761 33.”
    Defendant’s counsel thereupon filed eight exceptions to the finding of the court, which were dismissed.
    There was no bill of exceptions taken to the finding of the court.
    Defendant took out a writ of error, and assigned as error the dismissal of the said exceptions.

      W P. Pender and E. K. Niehols for plaintiff in error.

      There was no evidence of fraud, and it will not be presumed : Kerr on Frauds, 42 ; Lutton v. Hesson, 18 Penna., 109; Bear’s Est., 60 Id., 430; Commonwealth v. R. R., 74 Id-., 94; Shoemaker v. Kunkel, 5 Watts, 107. It was a clear mistake, which cannot be made the basis of fraud : McElfatrick v. Hicks, 21 Penna., 402.
    There was no question as to whether the claim under the second mortgage was in time or not under the Statute of Limitations, but an effort to show that 'it was a just claim in existence at the time, and fally entitled to an award of the surplus fund. In an action between the creditor of the husband and the wife’s mortgagee, the presumption of law is that the property belongs to the wife, and the burden of proof is upon the plaintiff to show that, the mortgagee either had notice or knowledge of the husband’s equity: Lyon’s Appeal, 4 W. N. C., 349 ; Wightman’s Appeal, 5 Casey, 280; Keionline v. Keichline, 4 P. F. Sm., 75; Sweetser v. Atterburg, 39 Leg. Int., 421; Hildebrand?). Bowman, 12 W. N. C.,241.
    The Court was wrong in excluding Joseph R. Flanigen as a witness, on the ground of interest, because he had signed a bond in the hands of defendant below, of which there was no evidence: Miller on Competency of Witnesses, 21, 23 ; Bennett v. Hethington, 16 S. & R., 195.

      Alexander Simpson, Jr., for defendants in error.
    This court can hear and determine only questions of law arising upon bills of exceptions relating to the evidence or the law of the case : Jamison v. Collins, 2 Norris, 359 ; Lee v. Keys, 7 Norris, 175 ; Commonwealth v. R. R. Co., 40 Leg. Int., 405. Where a case is submitted to the court without a jury, its findings of fact are conclusive and not assignable for error: Kerr ?>. Ames, 39 Leg. Int., 392.
    The court below has not presumed fraud, but has found it as a fact: Kerr v. Ames, supra.

    Defendants in error can recover back the over-payment: McDonald v. Todd, 1 Grant, 17. If it were a question of mistake of fact, the payment could be recovered back.
    The judgment is not'oonclusive of anything happening since it was entered: Borland’s Appeal,'16 P. F. Sm., 470 ; Gray’s Appeal, 10 W. N. C., 458. *
    The action sounded in tort, and no set-off is allowed in . such cases: Hunt v. Gilmore, 9 P. F. Sm., 452 ; Moyer ?). Loeb, 3 W. N. C., 95; Waterman on SetOff, 170;-Barbour on Set Off, 105 ;-Montagu on Set Off, 18; Babbington. on Set Off, 8 ; Statute of Defalcation, Purd. Dig., 487.
    The title to the $5,000 was in the trust estate, and plaintiff in error could have no right under it. ' .
    The set-off is barred by the Statute of Limitations : Alexander v. Leckey, 9 Barr, 120. Defendants in error can recover on the legal title of the sheriff: Montgomery v. Cook, 6 Watts, 238; Armstrong v. Lancaster, 5 Watts, 68.
    The law presumes that as against creditors the property belongs to the husband: McGeary’s Appeal, 22 P. P. Sm., 365; Husbands, Married Women, 89. The title being once in the husband was enough to put mortgagee upon inquiry : Husbands, Married Women, sec. 90. There is nothing on record to show that Planigen was called as a witness.
    January 28th, 1884.
   Per Curiam :

As there is no bill of exceptions in this case, we cannot review the errors assigned. While it was agreed that certain facts specified should be accepted in the trial, as if duly proven, without prejudice to either party to take a writ of error, yet each party reserved the right to object to the admissibility of any one or more of them as evidence in the cause. This destroyed the character of the agreement'as a case stated, and required proper exceptions, as in other cases, to bring the case before us for review. The judge ruled that eight of the separate facts stated were inapplicable or inadmissible, and excluded them from his consideration in the conclusion at which he arrived, yet he was not asked to seal any bill of exceptions.

Judgment affirmed.


author: Hanna, P. J.: Per Curiam :

text:
    January Term, 1884,
    No. 27.
    March 28, 1884.
    Wilson's Appeal.
    1. Where an administrator makes a sale in good faith of his decedent’s business interests, in fulfillment of an arrangement made by the intestate in his lifetime, taking therefor the purchasers’ bond for the payment of the purchase money, and this afterwards proves in greater part uncollectible, the administrator cannot be held personally liable if it appears that he has exercised a just and wise discretion, and has realized as much for the estate as could have been done by any course he might have pursued.
    2. The participation by the distributee when of age, in the distribution of the portion of the sum paid on account of the bond, is a ratification of the sale by him, and operates, as an estoppel to prevent his subsequent impeachment of its wisdom.
    Before Mercur, C. J.; Gordon,. Paxson, Tr unkey, Sterrett, Green, and Clark, JJ.
    Appeal of William Devoo Wilson from a decree of the Orphans’ Court of Philadelphia County upon the final account of Elwood Johnson, administrator of the estate of i Franklin S. Wilson, deceased.
    The facts fully appear in the following adjudication of the auditing judge, Penrose :
    “The decedent died September 12,1871, intestate, leaving a widow, Mrs. Agnes Wilson, and a son, William Devoo Wilson, then a minor, who has since, viz: June 20, 1878, become of age.
    Under a former account, as appears by the adjudication filed May 14, 1879, distribution to the amount of $97,-187 48 was made, viz: to the widow, one third, $32,395-83, and to the guardian of the son and to. the son himself, or his attorney in fact, two thirds, $64,791 65.
    The present account shows a balance in the hands of the accountant, composed as there stated, of . . $6,436 35 which sum, composed as aforesaid—
    less clerk’s fees,............$18 50
    and fees to Messrs. Dickson and Dale, . 200 00
    - 2Í8 50
    viz:,....................$6,217 85 subject to payments heretofore made on account (viz : To Mrs. Wilson, $2,070, and to W. Devoo Wilson, $973 98) is awarded to Mrs. Agnes Wilson, widow of decedent, and to W. Devoo Wilson, son of decedent, in the proportions to which they are respectively entitled under* the provisions of the intestate laws.
    Credit is claimed in_fhe account for $15,391 52 — “balance on first account uncollectible.” The credit thus claimed is for the balance of the appraised value of a bond and warrant of attorney given to the accountant December 1, 1871, by J. Milton Baab, Seth Thomas, and William M. Purnell, the purchasers of the interest of the decedent in the firm of Pockhill & Wilson.
    The credit was excepted to on the ground,. First, that the transaction was one which the accountant was not authorized to enter into ; and, Second, that the loss arose from his failure to enforce payment from the debtors in accordance with the terms of the instrument.

      The firm of Rockhill & Wilson, clothiers, was composed of the decedent and Daniel H. Rockhill, his wife’s father. Their business, which was principally that of the manufacture and sale of ready-made clothing, 603 and 605 Chestnut street, Philadelphia, had been carried on for many years. During the Rebellion, they made lai’ge profits upon clothing contracts, and until the fall of 1867, they were able, with the capital which they had at their command, to make their purchases for cash or upon thirty days’ credit. About the time last mentioned, the printing and publishing house of H. G-. Leisenring failed, owing them $220,000, of which they afterwards recovered a dividend of but 37|- per cent. In consequence of their loss, they were no longer able to do a cash business, but were always afterwards compelled to give notes and to borrow large sums of money, pledging their private securities and-property as collateral.'
    In June, 1871, Mr. Wilson determined to withdraw from the firm and take an interest in the printing house formerly carried on by H. G. Leisenring. With this object in view, and with the consent of his partner, Mr. Rockhill, he offered his interest at the value as shown by the books of the firm, after taking an account of stock, to J. Milton Raab, Seth Thomas, and William M. Purnell. These gentlemen, he was aware, were entirely without means, but they had been in the employ of the house for many years as salesmen, &c., &c., and possessed his entire confidence as men of integrity and business capacity; and he was willing to accept the risk of their inability to pay from their future earnings. His offer was accepted, and on the 1st of July. 1871, an account of stock having been taken, his share of the net assets appeared to be $27,022 02.
    A delay in the execution of the contract was occasioned by a suggestion of his counsel, Mr. Bullitt, with regard to the liability for future debts which he would incur if the name of Rockhill & Wilson should continue to be used after his retirement from the firm, and by his subsequent absence from the city during the summer vacation. He returned on Saturday, September 9, 1871; was in his office on Monday, the 11th, and died very suddenly and unexpectedly at three o’clock on the following morning.
    Letters of administration were granted to tíre accountant and Mrs. Agnes Wilson; and on the 1st December, 1871, with the approval of Mrs. Wilson and the advice of Mr. Rockhill and of Mr. Bullitt, Mr. Wilson’s counsel, and in performance of the contract made in the lifetime of the decedent, he sold to Messrs. Raab, Thomas, and Purnell the interest of the estate in the firm of Rockhill & Wilson for the price agreed upon — $27,022 02 — the purchasers giving their bond with warrant of attorney for that sum, payable in yearly instalments of not less than $5,000 per annum, until the whole should be fully paid off — with interest at six per cent.; with the proviso that ‘if at any ^ime default shall be made in the payment of interest for the space of thirty days after the same shall fall due, then and in such case the whole principal debt aforesaid shall, at the option of the said Ellwood Johnson, administrator aforesaid,’ &c., ‘become due and payable immediately, and payment of said principal, and all interest thereon may be enforced and recovered at once, anything to the contrary notwithstanding.’
    The bill of sale or deed of transfer which was signed by the accountant and the purchasers contained a copy of the ‘Inventory of the assets, stock and fixtures of Rock-hill & Wilson, Nos. 603 and 605 Chestnut street, taken July 1, 1871,’ in which the stock of ready-made clothing was estimated at $61,569 ; stock of uncut goods at $26,-495 23 ; bills and accounts due the firm, $52,763 84; cash on hand, $8,439 90; fixtures, $2,500 ; making a total of,...................$151,767 97 The liabilities were stated to be, ..... 97,723 94
    Leaving a surplus of........... $54,044 03
    and the shares of the partners :
    Daniel H. Rockhill, one half, $27,022 01
    Franklin S. Wilson, “ 27,022 02
    The instrument further recited the agreement of Mr. Wilson to make the sale, the taking of the account of stock July 1, 1871, in pursuance of it, and the failure to consummate the sale in consequence of his death
    Mrs. Wilson’s approval was in writing at the foot of the paper : ‘I approve of the above agreement,’ signed, Agnes Wilson.
    When the sale was thus made, the accountant was aware, as the decedent was when lie agreed to make it, that the ability of the purchasers to pay depended upon their success in the business. But apart from the fact of the contract and of the probability of an action for breach had he refused to carry it out, an unsettled interest in a partnership was a very difficult asset to realize upon. A sale in the market would probably have been impracticable, except at a ruinous sacrifice, if, indeed, it could have been made at all; and there remained, therefore, only the tedious, expensive, and uncertain method of proceeding for an account with the surviving partner. Such an account, it is probable from the evidence,, would have resulted in the loss of the entire interest, with, perhaps, the additional loss of valuable assets held by creditors on collateral for loans to the firm as stated hereafter. Mr. Allen, the senior member of the firm of Allen, Lane & Scott, who for many years had been the book-keeper and financial manager of Rockhill & Wilson, leaving them at the time of the Leisenring failure, in order to protect their interests by accepting the position of assignee for creditors, testified that from his knowledge of financial affairs at the time of the death of Mr. Wilson, he was of opinion that a forced closing out of the business would, by reason of the necessary sacrifice of the stock of ready-made clothing and the inability to made speedy collections of outstanding accounts, have resulted in the insolvency of the firm.
    The fact that the decedent, with the full knowledge of the circumstances of the purchasers, had fixed the terms of purchase, furnished the most convincing proof that the sale was an advantageous one for the interests of his estate, while, in addition to this, the widow desired it, and her "father, the grandfather of the only other distributee, advised that it should be made. Under the circumstances, the auditing judge is clearly of opinion that the act of the accountant in consummating the sale was entirely proper.
    The interest on the bond was punctually paid each half year to July, 1876. A single instalment of principal, $5,000, was paid in August, 1874. Payment was from time to time demanded by the accountant, but, except in the instance mentioned, he was always informed by Mr. Rockhill while he lived, (he being the financial member and chief manager of the firm,) that there were not the means with which to make it. Whether under the terms of the instrument so long as the interest was regularly paid the entire principal could be called for when default was made in the payment of an instalment of principal, is far from clear ; but conceding that it could be, the only method of enforcing it would have been a levy upon the interest of the debtors in the firm, and from this nothing could have been realized until a settlement of accounts and a payment of firm liabilities. A forced sale of the stock of the concern might for the reasons already men-' tioned, have resulted in the insolvency of the firm, and a consequent loss of the interest of the separate members. Mr. Rockhill was the father of Mrs. Wilson, and naturally interested in having everything secured for her that could be, and the accountant had the right to place confidence in his representations with reference to the affairs of the firm.
    There was another reason which made it necessary to proceed with great caution in compelling a closing up of the business. There were assets belonging to the separate estate of the decedent which had been pledged in his lifetime for the indebtedness of the firm.' These assets were $10,000 Steubenville and Indiana bonds, $7,500 Preston Coal Company bonds, $5,000 West Pennsylvania bonds, amounting in all to $22,500. They were still held by the creditors of the firm, and for this reason had been valued by the appraisers of the decedent’s estate at nothing, and if the firm should be driven to insolvency they would be lost altogether. By the course taken, they were all saved and their full value realized to the estate.
    It was the expectation of Mr. Rockhill, and of Messrs. Raab, Thomas, and Purnell, and of business men generally, that trade would revive and that more prosperous times were at hand. , The accountant was himself a merchant of many years’ experience, and his judgment was that a resort to extreme measures would be dangerous, and that the safer course was to afford every chance to the debtors.
    Mr. Rockhill died in July, 1876, having, by a codicil to his will, dated May 12, 1876, appointed the accountant and Israel H. Johnson his executors, and authorizing them to continue the business of Rockhill & Wilson. The fact of this appointment, and the entire confidence in the integrity and business capacity of the accountant thus indicated, shows that at least one most competent to judge must have considered the course taken with regard to the interests of the Wilson estate as proper and judicious.
    According to the balance-sheet of December 31, 1876, the apparent assets of the firm amounted to $153,721 45, and the liabilities to $83,547 36, showing an apparent surplus of $70,174 09. Among these assets, however, were included a debt of J. B. Rockhill of $7,092- 33, real estate in Camden, .$5,556 21, and sundry small accounts amounting to- $22,000, all of which ultimately proved to be of no value. The stock of clothing on hand was estimated at $60,805 20, while, had it been sold in bulk or at auction, it would, according to the testimony, probably not have been sold for half that sum ; so that, after deducting the expense of liquidation, the amount left to represent the interest of Raab, Thomas and Purnell would have been lit-tie or nothing. As surviving partners, they had the right to the management and winding up of the business. They were still hopeful of ultimate success, though as yet they had paid but a single instalment of their debt, and had drawn out simply their living expenses, ($2,000 per annum each,) and they desired to continue in the business. They had many years’ experience, and were skilful salesmen, thoroughly understanding how to dispose of the stock on hand iii the most advantageous manner. They were still without means, except what stood to their credit on the books of the firm, and a levy on their interest would have produced nothing. It is true the accountant could have bought it in at sheriff’s sale, and thus, as executor of Mr. Rockliill’s estate and administrator of Mr. Wilson’s estate, have had the entire control of the business ; but by doing this he wmuld have deprived both estates of the advantage to be had from their aid in the final winding up, and would have brought on a forced sale of-the stock.
    The hoped-for improvement in business never came. Each year affairs grew worse arid worse. Expenses were curtailed and forces reduced, and finally, in March, 1880, judgment was entered on the warrant of attorney accompanying the bond of Messrs. Raab, Thomas, and Purnell, and a levy made on their interest, which was bought in by the accountant at five dollars, and not enough was afterwards realized from the sale of the assets to pay the debts of the firm.
    The liability of the accountant depends, not upon his omission to demonstrate by levy and execution the worthlessness of the bond, nor upon' the fact that in the light of subsequent events it might appear that the course taken was not the best one. The question is, did he act with reasonable prudence Í Infallibility is not to be expected, and honest mistakes of judgment on the part of trustees are not punished by making them personally responsible for the consequences. In the absence of gross misconduct, or gross negligence, a trustee will not be surcharged with moneys which never came into his hands. (Chambersburg Saving'Fund Association’s Appeal, 26 Smith, 203 ; Neff’s Appeal, 7 Smith, 91; Stern’s Appeal, 14 Norris, 504.) The good faith of the accountant in the present case was conceded, and there is no evidence whatever of gross negligence. His experience as a business man had taught him that the solvency of a merchant did not rest simply upon the ownership of assets to an amount very considerably in excess of his liabilities, and that unless they could be converted into' cash as the obligations matured, there was a legal insolvency of which an actual insolvency would be the natural, if not the necessary, consequence. In all of the balance-sheets that were exhibited in evidence for the purpose of showing the solvency of the firm of Rockhill & Wilson, and the existence of a balance to the credit of Messrs. Raab, Thomas, and Purnell, the chief assets were the stock of clothing on hand estimated at cost, and the outstanding accounts due the firm. Both of these were very uncertain quantities, not at all to be relied on in case of emergency. Debtors might prove unable or unwilling to pay, and legal proceedings might be required to enforce payment after long delays, while a stock of ready-made clothing, consisting for the most part of articles remaining unsold at the end of the season, many of them of antiquated style and material, and all of them becoming daily of less value by reason of change of fashion, if forced into the market, could manifestly be sold only at prices far below their original cost, and the larger the stock, the greater necessarily would be the depreciation. So that, while for the purposes of this case the fact may be conceded to be otherwise, there is strong reason, under the evidence, to believe that had the affairs of the firm at any time after July, 1871, been brought to a forced settlement, little or nothing would have remained after the payment of the joint obligations, if, indeed, there would have been enough for even this purpose.
    If, therefore, the question is to be regarded as still an. open one, the exceptions must, in the opinion of the auditing judge, be overruled.
    But is it an open one ?
    It has already been stated that a previous account was filed and duly adjudicated May 14, 1879. The account was a joint one, filed by the present accountant and his co-administrator, Mrs. Agnes Wilson. In it the accountants were charged with the appraised value of the bond taken for the interest of the decedent in the firm of Rock-hill & AVilson, with the semi-annual payments of interest to July, 1876, and with the $5,000 paid on account of principal in August, 1874 ; and credit was taken for the balance remaining unpaid, at its appraised value, as an uncollected asset. Mrs. AVilson joined in the affidavit as to the justice of the account, both in matters of charge and discharge, and both she and William Devoo AVilson, who had become of age in the preceding June, participated, without a word of objection to anything in the account, in the distribution awarded. So far as Mrs. Wilson was concerned, she was already estopped, by her written approval of the sale at the time it Was made, from afterwards questioning its propriety, and by her participation in and affidavit to the correctness of the account, from alleging that the credit claimed for the uncollected balance due on the bond was improper. The participation of William Devoo Wilson in the distribution closed his mouth as to the original transaction, while the decree confirming the account, and thus allowing the credit, and directing that the unconverted asset should be the subject of future account, precluded objection, except on the ground of fraud, as to the action of the accountants with regard to the bond during the period of the account and up to the date of the decree. If, up to that time, there had been any act of negligence which had made the accountants responsible, instead of being credited with the assets remaining in their hands as the subject of a future account, the proper decree would have been that they should'be charged with the amount as cash then in their hands, and should make distribution accordingly. If there was error in the decree made, the remedy was by petition for review. Fraud is not pretended, and while the decree stands, nothing involved in it can be inquired into collaterally.
    It is not alleged that, at any time after that adjudication, it would have been possible to have collected the debt.”
    The account was confirmed nisi. The following exceptions were filed on behalf of W. D. Wilson, viz:

      First. The auditing judge erred in allowing the accountant the credit claimed by him in the account for $15,391 52, “balance of first account uncollectible.”

      Second. The auditing judge erred in- refusing to surcharge the accountant with the sum of $15,391 52, the balance in his hands from first account.

      Third. The auditing judge erred in refusing to surcharge the accountant with the sum of $15,391 52, as the value of the bond and warrant of attorney, given to him December 1, 1871, by J. Milton Eaab et al., for the purchase of the interest of Franklin-S. Wilson, deceased, in the firm of Eockhill & Wilson.
   These exceptions were dismissed by the court and the adjudication was confirmed in the following opinion by

Hanna, P. J.:

“As is clearly shown by the auditing judge, the single question is, could accountant- have collected the balance due upon the bond given upon the sale of decedent’s interest in his firm at any time since the confirmation of the first account? It is conceded the bond has, ever since that time, been uncollectible. This being the case, we need only say that accountant is, beyond all question, properly entitled to the credit claimed in his account for the balance due on the bond as a “bad debt” of the estate. The exceptions are accordingly dismissed, and adjudication confirmed.”

Jerome Garty and Mayer Sulzberger for appellant.

We object to the allowance of the credit on two grounds, viz:

First. That the accountant had no right to sell decedent’s interest in a valuable business to irresponsible parties on credit and without security.

Second. That the loss arose from his neglect to enforce payment of the instalments from the debtors, from time to time, as they fell due.

If an administrator, instead of winding up the business, of the testator, continues it, or involves the assets of the estate in the risk of mercantile adventure, the wisdom of his course is judged by the event, and if the result prove disastrous, he must stand the responsibility; Stern’s Appeal, 14 Norris, 504; Wood’s Estate, supra; De Haven’s Estate, 39 Leg. Int., 450; Labouchere®. Tupper, 11 Moore, P. C., 198; 3 Williams on Executors, 6 Am. Ed., 1890.

But it is claimed by the accountants, and so ruled by the orphans’ court, that the appellant is precluded by the adjudication and confirmation of the first account from showing negligence on their part in failing, prior to ttiat time, to collect the bond.

And that the only question open for consideration is whether the bond could have been collected after May 14, 1879, the date of the decree.

In this it is submitted there was error. There are three elements universally necessary to constitute an estoppel by judgment:

William Devoo Wilson thereupon took this appeal, assigning for error the action of the court in dismissing his exceptions, in allowing the accountant the credit claimed by him in the account for $15,391 52, “balance of first account uncollectible,” in refusing to surcharge the accountant with the sum of $15,391 52, the balance in his hands from first account, and in refusing to surcharge the accountant with the sum of $15,391 52, as the value of the bond and warrant of attorney given to him December 1, 1871, by J. Milton Baab et al., for the purchase of the interest of Franklin S. Wilson, deceased, in the firm of Rockhill & Wilson.

April 7th, 1884.

First. The judgment must have been valid, that is, not void.

Second. It must have been rendered on the merits.

Third. It must have been final: Bigelow on Estoppel, 2d Ed., 25.

Where the real merits of the present action have not been at all inquired into in a former proceeding, issue may be taken on the fact, if the judgment be pleaded in bar: Starkie on Evidence, page 334, et notas.

An examination of the adjudication on the first account shows that there was no judgment upon the matter in controversy here.

• The administrators, to balance their account, stated on the credit side of it, that they had, in their hands, uncollected, the bond, the balance of the appraised value of which was $15,391 52. The court adjudicated that this balance should be the subject of a further account.

A decree in the orphans’ court, confirming one account, is conclusive only as to the funds then distributed, and does not bind the court when another account in the same estate comes before it for adjudication: Guenther’s Appeal, 4 W. N. C., 41; Kline’s Appeal, 86 Pa., 363.

F. Q. Dale, Samuel Dichson, and J. G. Bullitt for appellee.

’■ It is submitted that the sale was judicious, that nothing could have been realized at that time from a hostile winding up of the business ; that, besides destroying any chance of realizing anything from the right title and interest of the decedent, there was every reason to apprehend that the firm assets would not pay the debts, and the securities of the decedent already pledged would have been sacrificed; so that instead of realizing $97,187 48 net out of assets appraised at $82,447 68, much less than the appraisement would have been secured. The widow, by the approval of the sale, and the son, by his acceptance of his share of the portion of the purchase money actually received, ratified the sale of the interest, and both are now estopped from disputing the propriety of the original transaction.

Per Curiam :

The sale made by the administrator was in good faith, and in fulfillment of an arrangement made by the intestate in his life time. We think the sale a very judicious one. The whole evidence impresses us with the conviction that the administrator was not guilty of such negligence in failing to collect the sum agreed to be paid, as to make him personally liable'. He appears to have exercised a just and wise discretion; and to have realized as much for the estate as could have been done by any course he might have pursued. The widow of the decedent approved of the sale, and the appellant- ratified it by receiving his share of the purchase money. There is no error in the decree.

Decree affirmed, and the appeal dismissed at the costs of the appellant.