author: Chief Justice Sharswood Per Curiam.

text:
    Roberts's Appeal. Thomson's Estate.
    1. A testator devised his estate to trustees, to be subject to payments as follows: “ First. To so much of the proceeds of said property as my dearly beloved wife may deem necessary for the maintenance of herself and my dear niece ; they living in such style as my said wife may think best to promote their happiness and comfort during her lifetime. If my niece should survive my wife, then I direct that there shall be paid to her, as long as she may live, the sum of two thousand dollars per annum. To my wife I give absolutely all my household furniture, books and ornaments.” By a codicil he directed: “ I desire my dear niece, L. F., but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving during her lifetime such income from my estate as if she were really my child, and I postpone the operations of the trusts of my will, so as fully to effect this result, until her decease; upon which event they are forthwith to take full effect, as expressed in the will.” And by a second codicil directed : “ The codicil which I added to my will the other night, May 24th, means that I wish my niece, C. F. F., to be considered as my daughter, and to take, out of the income of my estate, all that she requires to render her more than comfortable in her housekeeping during her lifetime. I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object.” Held, that by the word “ proceeds” the testator meant income. Held, further, that the trustees could not limit the claim of the widow to what they might consider judicious ; that the widow and niece were entitled to the whole income if, in their discretion, they required it.
    2. T. and A. were joint owners of real estate, T. holding the title. He made sale of the lands, and mingled the money received therefor with his own. Held, that upon a settlement of his account with his co-tenant he was chargable with interest on the amounts received, and also with interest upon said interest. Money thus received is trust money, and the rules which forbid the allowance of interest upon interest between debtor and creditor do not apply.
    3. P. purchased certain lands and paid cash therefor. T. agreed to purchase one-fourth of these lands and pay cash therefor. P. gave T. a receipt in full as for cash, which receipt was duly witnessed, and set forth that one-fourth of the purchase-money had been furnished by T. Instead of cash P. took from T. a due-bill, payable at once. Held, that the receipt was a sufficient declaration of trust and might be recorded as such. Held, further, that T. could not make defence to the due-bill on the ground that P.’s representatives could not make an unencumbered title. Boland v. Tiernan, 8 W. & S. 193, followed.
    4. Decedent was a member of an unincorporated association organized to build, equip and operate a certain railroad. Some of the partners contracted to purchase the entire stock of a competing road. Held, that said contract was not within the scope 'of the authority of those making it and not binding upon decedent’s estate.
    5. It was alleged that an unauthorized contract of some of his copartners had been ratified by decedent. Held, that to make him liable his assent to the precise provisions of the contract must be shown.
    6. In the settlement of an account of trustees various claims were presented, but in the disposition of them the Orphans’ Court made but one decree. The accountants took a separate appeal for each claim. Held, that this was improper and there should have been but one appeal therefrom.

      February 4th 1879, and January 9th and 29th 1880.
    Before Si-iarswood, C. J., Merctjr, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeals from the Orphans’ Court of Philadelphia county: Of January Term 1879, Nos. 105-109, inclusive.
    Appeals of George B. Roberts and William M. Spackman, two of the trustees under the will of John Edgar Thomson, deceased, and of the same persons and the Philadelphia Trust Company, administrators c. t. a. of the estate of said d.cedent from the decree of said court.
    John Edgar Thomson, by his will dated December 20th 1871, provided as- follows:
    “ I give and bequeath all of my real and personal estate, except household furniture, to Lavinia F. Thomson, George B. Roberts and William M. Spackman, in trust: the income from which shall be devoted to the purposes hereinafter mentioned.
    “The said trustees to have full power to sell any of my property, and re-invest the proceeds whenever in their judgment, the interest of the trust will be promoted thereby. The estate to be subject to the following payments: First, To so much of the proceeds of said property as my dearly beloved wife, Lavinia F. Thomson, may deem necessary for the maintenance of herself and my dear niece, Charlotte F. Foster, they living in such style as my said wife may think best to promote their happiness and comfort during her lifetime. If my niece, Charlotte F. Foster, should survive my wife, then I direct that there shall be paid to her as long as she may live, the sum of $2000 per annum. To my wife, Lavinia F. Thomson, I give absolutely all of my household furniture, books and ornaments.”
    After bequeathing certain legacies he further directed:
    “ The said trustees to appropriate the remainder of the net income of my estate, after the payments above specified, or so much of it as may be judiciously applied thereto, to the education and maintenance of female orphans of railway employees, whose fathers may have been killed while in the discharge of their duties: preference to be given, first, to the orphans of the employees engaged upon the Pennsylvania Railroad; second, to those of the Georgia Railroad, between Augusta and Atlanta, Georgia; third, to those of the lines controlled by the Pennsylvania Railroad Company by lease or otherwise; fourth, to those of the employees of any other railroad company of the United States of America.”
    Three days before his death, on May 24th 1874, in his last illness the testator executed the following codicil:
    “ This is a codicil to my last will and testament, made in sickness of body, but with a clear understanding and full testamentary intention. I desire my dear niece, Lottie Foster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she were really my child, receiving during her lifetime such income from my estate as if she were really my child; and I postpone the operation of the trusts of my will, so as fully to effect this result until her decease, upon which event, they are forthwith to take full effect as expressed in the will.”
    And two days thereafter, on May 26th 1874, executed the following additional codicil:
    “ The codicil which I added to my will the other night, May 24th, means, that I wish my niece, Charlotte F. Foster, to be considered as my daughter, and to take out of the income of my estate, all- that she requires to render her more than comfortable in her housekeeping during her lifetime.
    “ I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object.”
    The account of the administrators was referred to Joseph A. Clay, Esq., as auditor. Before him Mrs. Thomson and Mrs. Reed made a joint claim alleging, that under the provisions of the will, they were,entitled to the whole income of the estate. The auditor allowed them a certain sum per year, which was about one-half the net income of the estate, being of the opinion, that this was enough for their maintenance in “such style ” as was intended by the will, and that said amount was all to which they were entitled. The court, Hanna, P. J., sustained the exceptions to this allowance, in an opinion, inter alia, saying:
    “ We are of the opinion, that testator has conferred upon his wife, and after her death, upon his niece, an absolute and unfettered discretion, as to the proportion of the income of the estate they will respectively require for their maintenance, and' upon the exercise of which, the court has no authority to impose any restrictions. This we consider to have been in the mind of the testator, and to form the scheme of his will.
    “ We are, therefore of the opinion that the balance of the principal of the estate should be awarded to the trustees, to be held and applied to the uses and purposes of the trusts declared by testator, and that the balance of the income, after the payment of the legacies bequeathed, should also be awarded to the trustees for the payment of the annuities, and to the widow of testator of such sum or sums as she, in her discretion, may require for the mainance of herself and niece, now Mrs. Charlotte F. Reed, the balance of the income, if any, to be expended in support of the charitable trust declared in the will.”
    The accountants took an appeal from this decree to 106 January Term 1876.
    At the audit, Mrs. E. B. Mitcheson, executrix of Catherine Alexander, who was executrix and sole devisee under the will of William Gr. Alexander, deceased, made a claim for interest on money received by Mr. Thomson from sales of land. Mr. Thomson and Mr. Alexander bought a tract of. land in the borough of Huntingdon, Pennsylvania. The land- was conveyed by William Dorris, Jr., and wife, to Mr. Thomson, by deed dated January 1st 1855. Mr. Thomson, on the 30th of June 1858, executed a deed of trust to Mr. Alexander, declaring that Mr. Alexander was entitled to one-fourth of the property. Afterwards a portion of the property was sold by Mr. Thomson, and on the 21st of May 1872, he paid to Mrs. Mitcheson, the claimant, $11,967.35. Sales had been made several years previously. Interest was claimed at the time of the payment on the various sums received by Mr. Thomson from the time of the receipt, which he refused to pay, and the fund was then taken reserving the question of interest. This claim was made before the auditor and allowed the interest amounting to $3441.77, Upon this sum interest was also claimed from the day of settlement, which claim the auditor refused, and the claimant excepted. The court sustained the exceptions, saying:—
    “ The exceptions to the award by the auditor of the claim of the estate of William G. Alexander, deceased, are to his .refusal to allow interest upon the amount found to be due by decedent as interest upon principal moneys in his hands at the date of his settlement with and payment of said principal moneys to the claimant on May 21st 1872. It is not disputed that on said date decedent paid to claimant the sum of $11,976..35, exclusive of the interest thereon, amounting to $3262.62, which claimant received, but reserving her right to demand the interest. The auditor has awarded payment of the amount of interest due decedent, but refused to allow interest thereon for the reason that it would be compounding the interest. But in this conclusion we think the auditor was mistaken. The amount of interest, computed to the day of settlement, and which the deceased wrongfully withheld, was as much a debt to the claimant as the principal moneys in' his possession, and his liability, therefore, was as conclusive; and being a debt then due and payable, it bears interest until paid. It cannot be doubted, if decedent had given claimant his promissory-note, due-bill, or other evidence of -indebtedness for the amount of the interest, the same would bear lawful interest. We therefore cannot consider this claim as analogous to a demand for compound interest. “It is simply an ascertained debt upon which interest should be allowed as a recompense for its detention.”
    The accountants appealed, No. 105 January Term 1879, and alleged that the court erred in this decree.
    At the audit, R. B. Phillips, administrator of William Phillips, deceased, made a claim upon a due-bill given by Thomson to William Phillips. The latter purchased a tract of land in Armstrong county, known as the “ Templeton Tract,” taking the deed in his own name. Mr. Thomson took a one-fourth interest in this tract, and gave Phillips his due-bill for $7964.07, and Phillips gave Thompson a receipt for this amount, in which he said: “In consideration of said amount paid to me by him, I hereby agree and bind myself to execute and deliver to him a deed, certifying that I hold the land above described in trust for him ($7964.07), with power to myself to sell any part of said lands, and account to said Thomson for proceeds.” No deed was ever made, and no proceeds of this tract were ever accounted for to Thomson. Phillips died, leaving this and other land burdened with the statutory lien of vast debts.
    The auditor reported that the Thomson estate was entitled to set off a claim against Phillips’s estate against this and other demands; and that as Phillips had died largely in debt, and there were numerous suits pending against his administrators, they could not convey an unencumbered title, and it was therefore clear that nothing could be demanded of the Thomson estate without first tendering conveyances of the shares of the lands to which Thomson’s estate was entitled freed from the statutory liens of Phillips’s debts, and that consequently the claim must be disallowed. The claimant excepted and the court sustained the exceptions, saying:—
    “Decedent, with Phillips and others, had a like interest in other lands in Clearfield and Armstrong counties, Pennsylvania. In payment of his share of the purchase-money in Armstrong county, decedent gave Phillips the due-bill for $7964.07. The title to these lands was also held by Phillips, who died before any conveyance was made to decedent of his undivided share. William Phillips at his death was found to be largely indebted. In view of these facts, the auditor disallowed the claim upon the ground of the indebtedness of Phillips to decedent for lands sold, and also for the reason that the claimants were not entitled to recover without first tendering conveyances of the shares to which decedent was entitled, freed from the statutory lien of the debts of said William Phillips. We agree with the auditor, that the debt due from Phillips to decedent for his proportion of the sales of land is a proper set-off; but we are of the opinion that the non-conveyance by Phillips of decedent’s undivided share in the lands cannot be so regarded. A cross-demand of this character does not seem to be contemplated by the Defalcation Act of 1805, nor the current of decisions under it. The act has ever been liberally construed, and unliquidated cross-demands arising out of separate and distinct causes of action allowed to be set-off. But it must arise ex contractu, and be capable of liquidation by a jury.”.
    The Guarantee Trust Company, administrator of the estate of Samuel Veazey, deceased, also made a claim for $135,000, the balance due upon eighteen notes of the European and North American Railway Company, drawn as follows:

      “Bangor, Maine, May 10, 1870.
    For value received, the European and North American Railway Company, by its president, authorized thereto by a vote of said company as principals, and the International Railway Construction and Transportation, by the trustees of said company or copartnership, authorized thereto as sureties, do promise to pay Charles Y. Lord and Alfred Veazey, executors of Samuel Yeazey, or bearer, the sum of seven thousand five hundred dollars, in equal proportions, in five, six, seven, eight, nine and ten years respectively, from December 1st 1869, at any bank in Bangor aforesaid; and in' case any portion of the principal or interest of this note shall remain unpaid for six months after such portion has become due, then the whole of the said note shall become instantly due and payable, and collectible, as if on demand, with interest.
    European & N. A. R. Co.,
    By G. K. Jewett, President,
    Principals.
    ru. S. Stamp,-] L $3-75. J
    Noah Woods,
    B. E. Smith,
    W. G. Case,
    Trustees, I. R’y C. & T. Co.,
    Sureties.”
    On the 17th of January 1868, John Edgar Thomson, William G. Case, Benjamin E. Smith, G. K. Jewett, Noah Woods and others, numbering twenty-three in all, organized an association under the name of the international Railway Construction and Transportation Company. The articles of association of the company, provided that “ its objects and purposes shall be the building, equipping and operating the European and North American Railway, under the construction contract and other contracts which have been made or may hereafter be made touching the said objects and purposes. And the said William G. Case, Benjamin E. Smith and Noah Woods, parties of the second part, are hereby created trustees for the purpose of carrying into, effect these articles.” All the property of the association was vested in the trustees, and the articles provided that the trust should be closed upon the “ performance of the said construction and other contracts and building and equipping said railway,” and tha.t the property and effects of the association should then be distributed and divided among the members.
    The European and North American Railway is about 205 miles in length, extending from Bangor to St. Johns, N. B. Another and different road, about 18 miles in length, extended from Bangor to Milford, nearly parallel with the European and North American Railway, and was called the Bangor, Oldtown and Milford Railroad. ■ The entire capital stock of this latter railroad was owned by Charles V. Lord and Alfred Veazey. Some of the pfficers of the European and North American Railway Company, considering it desirable that their company should' own the Bangor, Qldtown and Milford Railroad, negotiations were entered into for its purchase between Noah Woods and Gr. K. Jewett and Messrs. Lord and Veazey. These negotiations resulted in the making of a written agreement bearing date the 27th of November 1869, which stipulated that “ the said Lord and Veazey promise and agree with said Woods and Jewett to assign and transfer to them, or to such persons as the said Woods and Jewett shall indicate, the entire shares of all the capital stock of the Bangor, Oldtown and Milford Railroad Company, to wit, three thousand shares, the par value of which is forty-five dollars per share; said transfer and assignment' to be as of the first day of December next. And said assignees to have said shares without any dividends or earnings, or profit or money on hand of said railroad, or which may be on hand or due up to the close of the last day of the present month of November, and said shares at the same time to be free from- all the liabilities of said railroad which now exist or may exist up to and including said last day of November; meaning, that said shares shall be assigned and transferred as of said date, clear of all assets and liabilities, so that the said shares will on that day exactly and only represent the real and personal property and franchise of said corporation as the same exists at this time, excepting that the ordinary use of said road, till December, 1st 1869, will belong to the present owners, as well as all earnings and profits as aforesaid the said assignments and transfers of said stock to be delivered when said Woods and Jewett shall deliver to said Lord and Veazey the notes as described hereinafter; provided, such notes are delivex-ed within the time in which said Woods and Jewett promise to deliver the same, as named hereinafter; and, in consideration of the promises of said Lord and Veazey, the said Woods and Jewett promise to take and receive said shares, and give for the same the sum of $135,000, payable in the manner following, to wit: By the notes of the European and Nox’th American Railway Company, as principals, and the International Railway Construction and Transportation Company, a-s sureties, the said last-named company being a joint stock company or copartnership; said notes to be so far authorized by the said companies that the same shall be binding on the said European and North American Railway Company as a-corporation, and upon the individual membex’S of said Construction and Transportation Company as a copax-tnership, said sum of $135,000 in such note to be payable, with interest annually and in equal proportions, in five, six, seven, eight, nine and ten years from date, to be dated the first day of December 1869.”
    Mr. Thomson never saw the agreement of November 27th 1869, but in a letter in 1869 wrote as follows •

      “ December 29th 1869.
    Gentlemen : — I am informed by you of the purchase of the Bangor, Oldtown and Milford Railroad, for and in behalf of the European and North American Railway company, to be paid for by the duly authorized note or notes of said railway company, the price being one hundred and thirty five thousand dollars ($135,000), and payable, one-fifth of the entire amount in five years from date of purchase, and one-fifth in each succeeding after the fifth year, until the whole amount is paid, with interest, to be paid annually, which note or notes I understand are to be signed as securities by the trustees of the International Railway Construction and Transportation Company. As a member of the said International Railway Construction and Transportation Company, I hereby approve of said purchase, and so far as it relates to myself, ratify and sanction the signing of said note or notes by the trustees of said company. J. Edgar Thomson.
    “ To Messrs. G. K. Jewett and Noah Woods.”
    The time for the payment of the notes had not expired, but they were alleged to have become due by reason of default in the payment of annual instalments of the principal and the whole sum was therefore claimed. The auditor, inter alia, reported :
    “ By this letter, Mr. Thomson approved and sanctioned the purchase of the railroad and the signing of the notes. Neither of' these acts was void in itself; and the ratification or approval, whichever it may be called, is so far perfectly valid. The terms of payment, however, were somewhat different. There were to be six payments instead of five, extending over a corresponding-series of years.
    “ Giving time to a principal, without consent of a surety, certainly discharges the latter, and so does any other material variation of the liability of the principal. Mr. Thomson, however, was not a surety. He was merely a partner acting by agents, who assumed the place and duties of sureties upon terms to which they assented. Mr. Thomson’s action was simply approbatory of what was designed to be done, the purchase of the railroad stock. It may be observed, in passing, that here the extension of the time of payment is given to both principal and surety, by the very obligation by which that relation is created, and it is material, in this connection, to note that while Mr. Thomson’s letter was written in December, 1869, the notes were not dated or delivered until May 10th 1870.”
    The auditor then allowed the claim. The accountants excepted, and the court overruled the exceptions, in an opinion, inter alia, saying: “While, therefore, the contract of suretyship assumed by the three trustees was not in its inception binding upon the copartnership trading as the International Railway Construction and Transportation Company, yet before or after its execution it cannot be doubted that it was competent for the members of the firm to ratify and approve the contract, and thereby binding upon the firm. And while each member of a copartnership, within the scope of its legitimate business, may render his copartners liable,-for debts contracted with third parties, without notice of any private agreement to the contrary between the copartners, yet where the debt is contracted and liability assumed in an undertaking or enterprise foreign to the ‘objects and purposes’ of the copartnership, we. think it requires the assent or ratification of each and every -member of the firm before they can be held individually liable.
    “But in the present case it appears that only thirteen members of the firm, including the decedent, assented to and ratified the contract entered into by their three associates. If all the members of the firm are not liable, are these thirteen ? We think the question must be answered in the affirmative. Condensing the evidence, it appears that thirteen members of a firm agreed to and ratified a contract entered into by three of their copartners, in the name of and for the benefit of the firm; that, in consideration thereof, the contract was fully executed, and the property, the subject-matter of the contract, passed from the vendors and became part of the assets and estate of the copartnership. In view of these facts we are of the opinion that, although the copartnership as such is not liable as surety upon the promissory notes held by the estate of Samuel Veazey, deceased, yet the thirteen members of the firm are individually liable.
    “ All the parties to the contract relied upon this assurance and faith, and those who contracted as sureties must be held to the consequences of their act.”
    The accountants appealed, January Term 1879, No. ]08, and alleged that the court erred in overruling these exceptions.
    Claims were also made by Hugh Ryan, Edward D. Jewett, Joshua W. Hathaway, the Second National Bank, of Bangor, the Oakland National Bank and Mrs. Nancy Farnsworth, on notes of the International Railway and Construction and Transportation Company, in the following form :
    “ Bangor, April 28th 1871.
    For value received, on demand from date, the International Railway Construction and Transportation Company, by the trustees of said company duly authorized, promise to pay to the order of N. Woods, at Second National Bank in Bangor, $2800, interest at rate of eight per cent, to be'paid semi-annually.
    Signed, Noah Woods, 1
    W. G-. Case, >■ Trustees.1
    By Noah Woods, Attorney. )
    Endorsed — N. Woods, G-. K. Jewett.”

      The auditor admitted these claims in full. The trustees excepted, and the court overruled the exceptions and confirmed the report, saying:
    “ The auditors found that these were debts justly due and owing by said company, and that decedent, as a member, was liable therefor. In view of the evidence presented we discover no error in the findings of fact by the auditor, and therefore dismiss these exceptions.”
    Accountants appealed, No. 109, January term 1879, alleging that the court erred in confirming the report of the auditor.
    All these appeals were argued together.

      W. A. Porter, for appellants.
    In regard to the claim of Mrs. Thomson and Mrs. Reed, it is not to be conceived that the testator intended his will to be so construed, as to entirely sweep away the effects of his residuary bequpst. The uncertainty whether these claimants will require the whole income or not, makes the establishment and maintenance of the charity impossible during the life of either of them.
    The policy of the law has always been against charging interest upon interest, and the claim in the Alexander estate should not have been allowed: Offston v. Yarmouth, 2 Salk. 449; Waring v. Cunliffe, 1 Vesey, Jr. 99; Pawling v. Pawling, 4 Yeates 220; English v. Harvey, 2 Rawle 309; McClelland’s Ex’rs v. West, 20 P. F. Smith 183.
    Encumbrances existing on the land, were a good defence to the Phillips claim: Coke v. Kelly, 13 S. & R. 165; Negley v. Lindsay, 17 P. F. Smith 229. The question of set-off was not raised. The simple question was, whether any action whatever could be maintained by Phillips or his representatives, after his failure to perform the contract on his part.
    The notes purported to be signed by the European and N. A. Railway Co., as principals, and by Woods, Smith and Case, as sureties. If Mr. Thomson’s letter made him liable at all, it could not be as a principal nor as a surety, for these categories had been filled up, but only as a guarantor, and not as a guarantor unless it were shown that the principal debtor had become insolvent: Rudy v. Wolf, 16 S. & R. 79; Johnston v. Chapman, 3 P. & W. 18; Kellogg v. Stockton, 5 Casey 460; Hoffman v. Bechtel, 2 P. F. Smith 190.
    The notes contained this stipulation, of which, Mr. Thomson never was informed: “In case any portion of the principal or interest of this note shall remain unpaid for six months after such portion has become due, then the whole of the said note shall become instantly due and payable and collectible, as if on demand, and with interest.” This was a most essential addition to the terms of the contract, so far as they had been communicated to Mr. Thomson. A surety might be willing to become liable for a debt paj'able during a course of years, at intervals of a year, but very unwilling, if liable to be called upon to pay the entire sum in a very few months. To write so important a condition as this in the bond, and to withhold all knowledge of it from the alleged surety, and then to expect to hold him liable as if he had assented to it, is at war with every decision yet rendered in the law of principal and surety: Bacon v. Chesney, 1 Starkie 153; Glyn v. Hertel, 8 Taunt. 208; Wright v. Johnson, 8 Wend. 513; Birckhead v. Brown, 5 Hill 634.
    It is settled law, that no man can be held to have ratified that which has been done in his name, until he has had full knowledge of all the facts attending the transaction. There is no evidence whatever, that Mr. Thomson ever saw one of these notes, or that he ever knew the terms of his letter had been violated: Moore’s Exr’s v. Patterson, 4 Casey 505; Railroad v. Gazzam, 8 Id. 340 ; Pearsoll v. Chapin, 8 Wright 9.
    All the partners did not assent to this contract, and none are bound: Parsons on Contracts 107; Livingstone v. Lynch, 4 Johns. Ch. 573, 596.
    The trustees were not authorized to issue the notes, on which Ryan et. al. base their claims. The articles of association gave them no such authority. One of the trustees executed a power to the other two to act for him. He could not thus delegate his discretion, and the acts of the trustees were void: Sugden on Powers *223; Lewis on Trusts *296 ; McCready v. Guardians, 9 S. & R. 94; Johnston v. Bingham, 9 W. & S. 58.

      A. Sidney Biddle and George W. Biddle, for Mrs. Thomson and Mrs. Reed.
    It was manifestly the intent of the testator, as appears by the first codicil, that Mrs. Reed was to be treated as if she were his child and he had died intestate, and the second codicil briefly reaffirms the first. There being no controversy between Mrs. Thomson and Mrs. Reed, there is no reason why Mrs. Thomson should not appoint the income: Kinter v. Jenks, 7 Wright 445; Second Presbyterian Church v. Disbrow, 2 P. F. Smith 219; Jauretsche v. Proctor, 12 Wright 466; Pennock’s Appeal, 8 Harris 268. The charity is postponed by the first codicil, and the second having been made within one month of testator’s death, could not restore it: Act of April 26th 1855, Pamph. L. 332.

      MacGregor J. Miteheson, for Alexander’s Estate.
    We did nor insist upon compound interest, but for simple interest upon a trust fund found to be due by a trustee to a cestui que trust: Lamb’s Appeal, 8 P. F. Smith 146; Hughes’s Appeal, 3 Id. 500; In re Harland’s Accounts, 5 Rawle 333; Commonwealth v. Miller, 8 S. & R.458; Schaeffer’s Estate, 9 Id. 268; Fries v. Watson, 5 Id. 220.

      W. H Drayton, for Phillips’s Estate.
    Phillips could have demanded the due-bill at any time, in anticipation of giving the deed of trust, and Thomson, paying his money, might at any time have required his deed, but he could not have demanded a deed without paying the due-bill, and Phillips was certainly in no default in not proffering a deed of trust until the due-bill was paid. Both parties died, leaving the transaction as stated, and under the law and equity of the case, their representatives stand in their shoes, except that they must each look in different directions for what is due them. Phillips’s personal representative must look to Thomson’s personal representative, in the first instance, for the due bill, and Thomson’s heirs to Phillips’s heirs for the declaration of trust when the due-bill is paid: Roland v. Tiernan, 8 W. & S. 193.
    The claim of the Thomson estate was not the proper subject of a set-off: Wharton v. Douglass, 26 P. F. Smith 273; Harris v. Rapp, 2 W. N. C. 595. Phillips’s insolvency was a bar to any claim of set-off: Bosler v. Exchange Bank, 4 Barr 32; Appeal of Farmers’ and Mechanics’ Bank, 12 Wright 57.

      Henry M. Dechert, for Yeazey’s Estate and Ryan et al.
    When Mr. Thomson approved the purchase, as he did by his letters to his partners, it was as to him a partnership transaction, even if outside the regular business of the association, and “he was as much bound by the acts and declarations of his partners as to that transaction, as if it were one of the ordinary and customary acts of the association:” Sandilands v. March, 2 B. & Ald. 673; Windship v. Burk, 5 Pet. 529.
    Although articles may deny to one partner the right to bind the firm by his separate act, within the scope of his business, he has the power, for the world cannot know and are not to be affected by such limitations. Each partner is the agent of his partners in all matters within the scope of the firm business. A participant in profits directly as such is, as to third persons, a partner, whatever may be the arrangement between the partners: Edwards v. Tracy, 12 P. F. Smith 374; Kramer v. Arthurs, 7 Barr 165; Drennen v. House, 5 Wright 30.
   Chief Justice Sharswood

delivered the opinion of the court, March 29th 1880.

This is an appeal by the administrators of the estate and the trustees under the will of John Edgar Thomson from a decree of the Orphans’ Court on the settlement of the account of the administrators of his estate. The appellants adopted the novel practice of entering five appeals — a separate appeal for each claim on the estate with the decision of which they were dissatisfied. It was not only novel but dangerous. The same party is clearly entitled to but one appeal from the same decree. Upon the assignment of his errors, he is conclusively presumed to have no other ground of complaint against the decree, and had a motion been made to dismiss all the appeals but the first, the appellants would have had no recourse but the interposition of the court in their discretion to correct'their mistake. We will make such a decree as will put the record right and do justice in the matter of costs.

1. The first question we will consider is in the matter of the claim of Mrs. Lavinia F. Thomson and Mrs. Charlotte F. Reed to the income of the estate.

The will of Mr. Thomson with the two codicils is certainly a very peculiar one. It will be in vain to look for precedents in the books which can throw any light upon its' construction. In the will itself there would not be much difficulty. It is plain that by “proceeds” he meant “income,” and it is equally plain that he intended that the legatees — though named subsequently to the provisions for his wife and niece — should receive their bequests and legacies independently of those provisions. Subject then to the payment of these legacies his wife was to have so much of the income of his estate as in her sole discretion she might deem necessary for the maintenance of herself and her niece in such style as she might think best to promote their happiness and comfort during her lifetime. She would have the right to receive the whole remaining income if she required it. Neither the trustees under the will nor the court upon any principle of law or equity could say for her what ought to be the style in which she should live or how much would be a sufficient allowance for any style she might choose. Then if her niece should survive her, he directed the sum of two thousand dollars annually to be paid to her as long as she might live. The trustees were to appropiate the remainder of the net income to the purpose of a charity. It is true he describes it as “the remainder of the net income of my estate, after the payment above specified or so much of it as may be judiciously applied.” This cannot give the trustees the right to limit the claim of his wife to what they might consider judicious. It is evident that Mr. Thomson bad the most unbounded confidence in his wife, and might well consider that she would not claim the whole of the remainder so that there would still be something to apply to the charity. It was not the trustees but Mrs. Thomson who was to make the judicious application.

The first codicil is in these words: “ I desire my dear niece, Lottie Foster, but to whom I cherish the feelings of a father, to be so treated and regarded in the law as if she really were my child, receiving during her lifetime such income from my estate as if she really were my child, and I postpone the operation of the trusts of my will so as to fully effect this result, until her decease, upon which event they are forthwith to take full effect as expressed in the will.” The first remark to be made as to this codicil is that it does not mention his wife. Not a syllable in it indicates an intention to revoke or modify the provision in the will for her. Yet to give the words their strict interpretation, it would necessarily reduce her allowance to one-third of the income. It would seem that the intention was only to modify the provision of the will as to his niece. Instead of an annuity of two thousand dollars if she survived her aunt, he declared that she was to be so treated and regarded in the law as if she was really his child, receiving during her lifetime such income from his estate as if she were really his child. That is, that not absolutely but during her lifetime she should be entitled to receive the whole income of his estate. Accordingly, the operation of the trusts for the charity is postponed until her decease. We cannot see that the second codicil varies materially the result. He declares that he wished his niece to be considered as his daughter, and to take out of the income of his estate all that she'required to make her more than comfortable, in her housekeeping during her lifetime, and then thinking perhaps that she might not require the whole of the income, he adds : “I do not desire to postpone by it the operations of the trusts of my will, except so far as may be necessary to secure the above object.”

Another construction of the first codicil which interprets it so as to reduce the provision for Mrs. Thomson to one-third only of the net income to her during her life, and to give the remaining two thirds to his niece during her aunt’s life, and the whole at the period of her death, has already been adverted to. One or other of these constructions must be the true one. Whichever construction prevails, the appellants have no cause of complaint. They have no right to any portion of the income during the lives of Mrs. Thomson and Mrs. Reed, except what may remain after what they have pleased to require. Neither Mrs. Thomson nor Mrs. Reed have appealed from this decree. They are satisfied with the decree below as between themselves. As to them, it has passed in rem acljudicatam. Practically, under either construction, they are entitled to receive the whole income during their joint lives and the life of the survivor. The appellants have failed to convince us that the charity they represent is at all injured by the decree below. The only party who might have been injured has not appealed but acquiesces. As to her, the decree below is conclusive, and the trustees will be fully protected in making their payments according to it.

2. The next complaint which we will consider, is as to the decision of the court below upon the claim of Mrs. Ellen B. A. Mitcheson.

This exception appears to have been argued in the court below, as it' was here solely on the ground that it was an allowance of interest upon interest. There is certainly..no good reason why a man who wrongfully withholds the payment of interest — due upon an admitted debt — should not also pay interest upon interest. The interest is the money of the creditor as well .as the principal, and if it is wrongfully withheld, the wrongdoer should pay for the use of it. All interest is but hire for the use of money. No one questions the law or the justice of compelling the hirer of property other than money at a certain annual sum to pay interest on such sum. Interest is recoverable on rents agreed to be paid for the use of land. It is certainly not usury. Lord Thurlow said in Waring v. Cunliff, 1 Vesey, Jr. 99 : “ My opinion is in favor of interest upon interest, because I do not see any reason, if a man does not pay interest when he ought, why he should not pay interest for that also.” Chief Justice Ttlghman (5 S. & R. 222), speaking of allowing interest upon interest in the revival of judgment, says : “ Nor is there anything against equity in it. The payment of interest is occasioned by the default of the defendant. It is equitable that he should pay interest on the whole sum detained from the plaintiff.” It must be admitted, however, that the law is settled that unless there is a special agreement or an account stated and a balance struck interest upon interest cannot be recovered. This is the undoubted rule as between debtor and creditor. We think, however, the rule is not applicable with so much strictness as between trustee and cestui que trust■ The money as received by the trustee is the money of the cestui que trust. If sufficiently ear-marked the law follows it. It is a breach of duty in the trustee to mix it with his own funds. It is his plain duty to pay it to the cestui que trust as received — and if he has made profit or interest — that profit or interest belongs to the cestui que trust. The onus is on the trustee to show that it has been kept apart and not used by him. These considerations fully sustain the ruling of the learned court below. But that ruling may be sustained upon another ground. When the payment was made by Mr. Thomson, it was in fact a partial payment on account. He may have intended to direct the application of it to the principal sum. It is probable he did. But' it does not appear that he made any such express application. Certain it is that Mrs. Mitcheson did not so receive it. The receipt she gave and which was accepted was expressly on account. In all cases of partial payment, it is the law which makes the application. It may be doubted whether the debtor has a right to make any other application. It is only where there is more than one debt that the debtor has a right in the first instance to direct to which debt the payment shall be applied. Mrs. Mitcheson received the money as a partial payment, she had a right to refuse to receive it, and could therefore make her own terms. The rule as to partial payments is well settled, and there is no reason why it should not be applied to this case. According to that rule the application is to be made first to the interest then due, and the balance to the reduction of the principal. This would in this case leave the unpaid interest, still standing, as a part of the principal remaining due, and would of course bear interest: Spires v. Hamot, 8 W. & S. 18, and the authorities there cited, to which may be added Moore v. Kiff, 28 P. F. Smith 96. This relieves the case of any difficulty.

3. The next question presented is that which arises upon the claim of the administrator of the estate of William Phillips, deceased.

The transaction between Thomson and Phillips in regard to the Templeton lands was evident^ a cash transaction — so intended and by strong implication manifest on the face of the papers. Phillips had paid in cash for the land $31,856.30. Thomson agreed to purchase an interest of one-fourth, and to pay in cash $7964.07. Phillips gave him a receipt in full as for cash, and then took, not a security payable at a future day, but a simple due-bill payable at once. It was the same, precisely, as if Thomson had actually paid in coin,, and Phillips had immediately loaned it to him, taking his due-bill or novpayable on demand. It was not therefore a case in which a failure to convey would be a good equitable defence as in the ordinary case of securities given for purchase-money. No demand was ever made by Thomson of Phillips in his lifetime for a deed declaring the trust. There was no default in Phillips. His death renders a literal compliance impossible. But Thomson’s estate cannot suffer. The receipt signed by Phillips is as effectual though perhaps not as formal a declaration as could he made. It can be proved by the subscribing witness and put on record. Had a formal declaration of trust been given and recorded, it would not have prevented Phillips from selling. A power for that purpose was reserved. Indeed it was the reason why Phillips retained the legal title. The record of this receipt will secure Thomson’s estate from any conveyance by the heirs, and if any creditor should proceed to levy and sell it will be notice to the sheriff’s vendee that one-fourth interest in the land belonged to Thomson, and could not be sold for Phillips’s debt. On payment of this due-bill, Thomson’s estate will have a right to an absolute deed in fee from Phillips’s heirs — discharged of the lien of his debts. Why then should Thomson’s estate withhold the money, the cash he admitted to be presently due ? The case of Roland v. Tiernan, 8 W. & S. 193, is entirely in point.

4. -5. The only claims which remain to be considered are those of administrators of Samuel Yeazey, deceased, and of the Oakland National Bank and others.

We are of opinion that the learned court below were right in sustaining the exceptions to the auditor’s report, and in holding that the contract for the purchase of the stock of the Bangor, Old-town and Milford Railroad was not within the scope of the articles of association of the International Railway Construction and Transportation Company. The object of this latter company, which was unincorporated, was expressed to be. “ the building, equipping and operating the European and North American Railway.” The road whose stock was bought was a competing road, running parallel with the latter road for a short distance. But however desirable it might be for the International to own this road and thus prevent competition, we fail to see that it was within the scope and objects of the International. That was strictly confined to a very definite purpose, and to suppose that the trustees could bind the copartners to purchase any other road seems very far out of its proper line. Indeed, the parties evidently so thought themselves, for they stipulated “to procure a writing in which the individual members should authorize the same with their liability.” There were in all twenty-three members of the International, and without scrutinizing particularly the terms of Mr. Thomson’s letter of December 29th 1869,' we may concede that he, with thirteen others, did authorize the contract. The question then simply is, whether he is bound without the concurrence of all his copartners. If he is, the effect undoubtedly is that he is individually responsible for the whole amount, with the right to call upon the other thirteen for contributions. But was this his agreement? We think not. It is evident that all the members were to be individually bound or none. There is no evidence that the fact that only a part of the members had agreed to be bound on the clause of the contract entered into for the purchase, by which it was stipulated that less than the whole number might agree, was ever brought to the knowledge of Mr. Thomson, or assented to and ratified by him. How then, without evidence of knowledge, could he be estopped ? If Mr. Thomson had been the only one who assented, is it possible that he would have been bound individually with no right to call upon any of his associates for contribution ? We think it is too clear for argument. Mr. Thomson’s letter is confirmatory of this view. He says that the purchase was to be paid for by the duly authorized note or notes of the said company. Now if the contract was not within the scope of the partnership, the notes were not the duly authorized notes of the company unless authorized by all the parties. Unless all the parties were bound the partnership was not bound. We think, therefore, the learned court below erred in awarding in favor of the claim. As to the claims of the Oakland National Bank and others, we affirm the decree upon the report of the auditor and opinion of the learned court below.

Decree reversed as to the claims of the administrators of Samuel Veazey, deceased, the Oakland National Bank, Joshua W. Hathaway, Edward D. Jewett, Hugh Ryan and Mrs. Haney Farnsworth, and affirmed as to the residue. And it is ordered that the appeals numbered 106, 107, 108 and 109, of January Term 1879, be dismissed at the costs.of the appellants ; that the style of this appeal Ho. 105, be amended by striking therefrom the words, “ on the claim of Mrs. Ellen B. A. Mitcheson;” that all the assignments be filed in this case, and that the costs of this appeal be paid by the appellants from the estate of J. Edgar Thomson.

Per Curiam.

And now, April 2d 1880, it is ordered that the decree heretofore entered in the above case be amended by striking therefrom the names of the Oakland National Bank, Mrs. Nancy Farnsworth, Hugh Ryan, Joshua W. Hathaway and Edward H. Jewett, and that as to the claims of those parties respectively, and of the Second National Bank of Bangor, the decree of the Orphans’ Court be and the same is hereby affirmed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Keough versus Leslie.
    general in an action on a written' contract, where a party defends on the ground that he was induced to sign by an oral stipulation, unless he so in his affidavit of defence, it is defective ; but when the positive aver-°f the affidavit, considered with reference to the written contract beyond doubt, that the oral agreement induced the signing of the written one, the affidavit is sufficient. 2. A party seeking to enforce a contract made by his agent is bound by the agent’s declarations, made at the time, although he exceeded his authority.
    3. In an action on a book-account for “paper patterns,” furnished by plaintiff to defendant under the tei'ms of a written contract, the defendant in his affidavit of defence alleged, in conflict with the written contract, that plaintiff’s agent, with whom the contract was made, had agreed that defendant was only to be liable for the goods sold by him. Held, that this affidavit was sufficient.
    January 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 62.
    Assumpsit by Frank Leslie against P. F. Keough and Mary C. Keough, his wife, trading, &c.
    The plaintiff filed a copy of a contract, whereby in consideration of the purchase from Leslie, by the defendants, of $300 worth of “paper patterns,” the defendants were appointed agents for the sale of Frank Leslie’s “ Cut Paper Patterns,” for the term of one year. During the continuance of the agéncy, defendants were to keep a full assortment of the patterns, to sell the same at retail prices, and settle their accounts monthly. Leslie was to take back patterns unsold during the year, and to give others in exchange. Accompanying this contract was the copy of a book account of §269, for patterns furnished under the contract. In an affidavit of defence, the defendant averred:
    “About the 20th day of December 1875, an agent of Frank Leslie’s called on us (P. F. & M. C. Keough), the above-named defendants, to introduce the paper pattern business, or in other words, to establish an agency for the said Frank Leslie. I said: ‘Leave this matter over until to-morrow, and I will see about it.’ His reply was: ‘ I must leave the city on the first train in the morning, and therefore cannot wait. There is no risk in this business,’ (meaning the agency), ‘as you don’t have to pay only for what you sell, and the §45,’ (meaning the first instalment mentioned in the contract, or agreement), ‘is to protect us’ (the plaintiff) ‘so that you won’t throw the printed matter on our hands; and at the end of the year, if the thing is not a success, we ’ (meaning the plaintiff) ‘ will take the patterns off your hands, and you will be at at no loss.’ When the patterns were received with these assurances from the plaintiff’s authorized agent, we, the said defendants, did the best we could to dispose of and introduce them among the public ; and in accordance with said contract or agreement, both written and verbal, made with said agent, expressly on the conditions above stated; and with the explicit understanding, that we, the said defendants, were in no event to be liable for any goods or any amount, except for such portions of said consignments of paper patterns as were actually disposed of by us, the said defendants, for the account of the said plaintiff. After a fair trial, and finding no sale for said paper patterns in the neighborhood to which we were necessarily restricted, and having made reasonable effort, we, the said defendants, addressed the said plaintiff, and stating that no sale had taken place of said patterns, with the exceptions of those therein referred and specified, being a portion of the said first (and only) consignment of the paper patterns, informed him, the said plaintiff, that the balance of said consignment undisposed of was at the disposal of him, the said plaintiff, and subject to his orders, in pursuance of said agreement, and said notice was so given in writing; and therein was given notice of the desire of said defendant to be relieved from said agency, as provided for in and by said contract or agreement, before the expiration of said year, as therein provided. The deponent further answering, saith, that the said defendants and neither of them is, or are, indebted to the said Frank Leslie in the said sum of §269, or in any other sum whatever; and that said paper patterns are and have been always at the disposal of said plaintiff, prior to the commencement of this action. That this deponent and his co-defendants, and either of them, never agreed to be responsible for any of such goods, beyond the amount actually disposed of; and said defendants have more than paid in cash money to said plaintiff, through his authorized agent, for such portions of said goods disposed of, as such, agents at the time said contract was signed. All of which this deponent and co-defendants believe, and expect to he able to prove on the trial of said cause.”
    A rule for judgment for want of a sufficient affidavit of defence was made absolute, when defendants took this writ, and assigned this action of the court for error.

      James P. Lee and Pierce Archer, Jr. for plaintiffs in error.—
    Where, at the execution of a writing, a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it vary and change the terms of the contract: Greenwalt v. Kohne, 4 Norris 369 ; Shepler v. Scott, Id. 329.
    The affidavit distinctly sets up, that the plaintiff’s agent called on defendant to “establish an agency,” not to effect a sale; that, before signing the contract, he was assured: “ You don’t have to pay only for what you sell;” and, again : “If the thing is not a success, we will take the patterns off your hands, and you will be at no loss.”
    Was not this a perfect defence ? If Keough signed this fraudulent contract under the distinct assurance of an “ agency ” only, why should it now be turned into an absolute contract of sale and purchase ?

      W. W. Weigley and John H. Qolton, for defendant in error.—
    Where the parol stipulation is not expressly averred to have been the inducement, on the faith of which the writing was executed, the general rule prevails, and parol evidence is inadmissible to vary the terms of the written instrument: Barnhart v. Riddle, 5 Casey 92; Chalfant v. Williams, 11 Id. 215.
    The defence set up in the court below was bad also, because it consisted merely of alleged declarations of a special agent not within the scope of his authority. The agent had no authority to make the promises or declarations alleged, and of this, the plaintiffs in error had notice by .the express terms of the contract they signed.
    The stipulations alleged to have been made by the agent, being manifestly beyond the scope of his authority, and not assented to by defendant in error, cannot be set up as a defence to the action on the contract made: Hackney v. The Allegheny Co. M. Ins. Co., 4 Barr 185; Insurance Co. v. Johnson, 11 Harris 72; Moore’s Exr’s v. Patterson, 4 Casey 505 ; Monocacy Bridge Co. v. Manufacturing Co., 2 Norris 517 ; Hanover Water Co. v. Ashland Iron Co., 3 Id. 286
   Mr. Justice Trunkey

delivered the opinion of the court, January 19th 1880.

The first paragraph of this written contract appointed the defendants agents for one year from its date, in consideration of their purchase of three hundred dollars’ worth of paper patterns, fifteen per centum payable on delivery of the agreement, and the balance in four equal monthly payments, followed by detailed stipulations relative to the agency for sale of the plaintiff’s patterns. Among them was one binding Leslie “ to receive back from P. F. & M. C. Keough unsold patterns within one year from the delivery thereof, and to give in exchange therefor such other patterns as may be ordered at the time the old ones are returned.” Every sentence relates to the agency.

It is averred, in the affidavit of defence that when the plaintiff’s agent called on defendants to procure the contract, they requested till the next day to see about it. He replied, “ I must leave the city on the first train in the morning, and therefore cannot wait. There is no risk in this business, as you don’t have to pay only for what you sell, and the forty-five dollars is to protect us, so that you won’t throw the printed matter on our hands; and at the end of' the year, if the thing is not a success, we will take the patterns off your hands, and you will be at no loss.” The contract was then made “with said agent, expressly on the conditions above stated, and with the explicit understanding that we, the said defendants, were in no event to be liable for any goods or any amount, except for such portions of said consignments of paper patterns as were actually disposed of by us.” Taking the positive statements as true, it is manifest the defendants were induced to sign the writing on the express agreement that they should not be bound to pay for more patterns than they sold, and should suffer no loss beyond the hand payment of forty-five dollars. In general, when a party defends on the ground that he was induced to sign by an oral stipulation, unless he so avers in his affidavit, it is defective; but when the positive averments, considered with reference to the written contract, show beyond doubt that the oral agreement induced the signing of the written one, the affidavit is sufficient. The form and scope of the writing should be kept in view as well as the statements in the affidavit.

A party seeking to enforce a contract made by his agent is bound by his declarations made at the time, although he exceeded his authority: Caley v. Railroad Co., 30 P. F. Smith 363. If he would have the benefit of the bargain, he must adopt it as his agent made it.

The alleged matter of defence may be proved: Greenawalt v. Kohne et al., 4 Norris 369.

Judgment reversed, and procedendo awarded.


author: Per Curiam.

text:
    Kneedler's Appeal.
    1. A motion to open a judgment entered on a warrant of attorney is an appeal to the equitable powers of the court, and on appeal under the provisions of the Act of April 4th 1877, the question is whether the court rightfully exercised its discretion upon the evidence.
    2. Defendant, acting under the advice of counsel, borrowed money from plaintiff, and gave therefor his bond and'warrant of attorney, secured by a mortgage on his real estate. The money thus borrowed he prudently applied to the payment of liens on his estate. In subsequent proceedings it was found that he was a lunatic at the time of the execution of these papers. Held, that this was no defence in an action for the recovery of the loan.
    3. It seems, a warrant of attorney to confess j udgment need not be under seal.
    January 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 27.
    Appeal of Solomon A. Kneedler, from the decree of the court discharging a rule to show cause why a judgment .entered upon his bond and warrant of attorney should not be opened on the ground that the defendant was a lunatic when he executed said warrant. It appeared that Kneedler owned certain premises on the west side of Second street above Susquehanna avenue, in the city of Philadelphia, which were subject to a mortgage of $3000. He also owned property on the east side of said street which was subject to certain liens. In order to pay off the charges on the latter he was advised by his counsel to place a mortgage of $5000 on the property on the west side, and with the money thus obtained to pay off these liens. His counsel applied to Mr. Weigand, and through the latter a loan of $5000 was obtained from the Philadelphia Trust Company, for which Kneedler gave his bond and warrant of attorney secured by a mortgage on the west side property. These papers were duly executed on August 18th 1876. On default made a scire facias issued on the mortgage to which an affidavit of defence alleging that defendant was insane was filed, which the Court of Common Pleas held to be sufficient. After-wards the plaintiff entered judgment on the bond in Court of Common Pleas, No. 2, and a rule to show cause why the. same should not be opened was granted by said court

      The defendant in support of his rule produced the exemplification of the record of the Court of Common Pleas, No. 4, of Philadelphia county, in lunacy proceedings against Solomon A. Kneedler, to December Term 1876, No. 1055, showing an inquisition taken February 12th 1877, finding:
    “That the aforesaid Solomon Kneedler is, at the time of taking this inquisition, aged fifty-three years, and is, by reason of lunacy, incapable of managing his estate, and is wasting and destroying the same, and that he hath been in said state of incapacity by reason of said lunacy for the space of six months last past and upwards; and does not enjoy lucid intervals.”
    Which said inquisition was confirmed on March 2d 1877, and Holstein De Haven appointed committee.
    The record also showed a petition to supersede the commission, filed October 25th 1877, an examiner’s report thereon filed November 8d 1877, and the decree of the court confirming said report, and superseding and determining the commission in lunacy; the inquisition taken thereon, and the appointment of the committee, and all proceedings relating thereto.
    From the deposition of Weigand, the real estate broker, who negotiated the loan, of the counsel of defendant and of De Haven, 'the committee, taken on behalf of plaintiff, it appeared that the defendant fully understood the transaction, discussed the matter of the various liens, showed Mr. Weigand over the property, and seemed perfectly competent to do business. Neither of these witnesses knew of his insanity or believed him insane.
    It appeared also that $3000 of the $5000 loan was applied to the mortgage on the property v and that the balance, less one per cent, commissions and the conveyancing charges, was paid to Kneedler, with which he paid off the amount of the liens on the east side of the street. The court discharged the rule, when defendant took this writ, and alleged that the court erred in this action.

      Francis E. Brewster and F. Carroll Brewster, for appellant.—
    The date of the inquisition was February 12th 1877, the six months mentioned therein ran back to August 12th 1876, and ante-dated the warrant of attorney, which bears date August 18th 1876. This was prima facie evidence that on the date of the warrant of attorney the- appellant was insane, and the burden of disproving his sanity at that time was upon plaintiffs: Willis v. Willis, 2 Johns. 159; Roper v. Walker, 6 Barr 371; Noel v. Karper, 3 P. F. Smith 97. The appellant being insane on the day the warrant was executed, can recovery be had on such ah instrument under seal ? In Bank v. Moore, 28 P. F. Smith 407, this court held that the insanity of Moore was not a defence to the note in suit, the contract being executed and without fraud, but conveyances of land and instruments under seal were specially excepted from the decision.

      Howland Evans and B. L. Ashhurst, for appellees.
    The exercise of the jurisdiction to open judgments entered on warrants of attorney has always been held to be within the sound discretion of the court, and the Act of April 4th 1877, Pamph. L. 53, which provided for an appeal has not altered the law in this respect. The court below is to judge of the evidence, and is not required to send every ease to a jury where there is a conflict of testimony. On all such appeals, the question to be determined is, whether the discretion has been rightly exercised on an appeal from a chancellor: Early’s Appeal, 8 Norris 411; Hickernell’s Appeal, 9 Id. 328.
    The deed of a lunatic is voidable, not void: 2 Black. Com. 291. We contend that the rule is, that a party cannot avoid his contract, whether simple or on specialty, by merely pleading his lunacy at the time of making it, but must show that the other party had knowledge of his infirmity, and took advantage of it, or at least, if the bona fides of the transaction clearly appear (as in this case), the contract will not be avoided. And in no case of a contract for repayment of or security given for money borrowed has this been questioned: Story’s Eq. 226; Sergeson v. Sealey, 2 Atk. 413; Neill v. Morley, 9 Ves. 478; Molton v. Camroux, 4 Exch. Rep. 17; Price v. Berrington, 3 MacN. & G. 490; Elliott v. Ince, 7 DeG., M. & G. 488; Campbell v. Hooper, 3 Sm. & G. 153; Henry v. Brothers, 12 Wright 71; Bank v. Moore, 28 P. F. Smith 412; Scanlon v. Cobb, Am. Law Reg. 1878, 305; Hirsh v. Trainor, 3 Abb. New Cases 274; Hicks v. Marshall, 8 Hun 328; Young v. Stevens, 48 N. H. 137. Having received the entire benefit of this contract, it will not be set aside: Bank v. Moore, supra; Maurer’s Appeal, 5 Norris 380; Beals v. Lee, 10 Barr 56; Snyder v. Laubach, 7 W. N. C. 465 ; Moore v. Hershey, 9 Norris 196; Baxter v. Earl of Portsmouth, 5 B. & C. 170; Dane v. Lady Kirkwall, 8 C. & P. 679; Nace v. Boyer, 6 Casey 111.
   The judgment of the Supreme Court was entered January 19th 1880,

Per Curiam.

The motion in the court below to open the judgment and let the defendant into a defence on the ground of alleged insanity, when the bond and warrant were executed, was an appeal to the equitable powers of the court. The question is, did the court, in the exercise of a sound discretion, discharge the w&? The appellant had no equity. He acted by the advice of counsel, received the consideration, and it was prudently applied to the payment of his undisputed debts. Neither the conveyancer who negotiated the mortgage nor his own counsel considered him as insane. It was undoubtedly a sane act, though it may have been by an insane man. The appellant relies much upon the ground that as the bond and warrant were under seal the case is not within the recognised exception. But the warrant need not have been under seal. In substance, it was a loan of money, and if the appellant had been sued for the loan the alleged insanity could not have availed him. Why then should the judgment confessed be opened ?

Order affirmed, and appeal dismissed at the costs of the appellant, and record remitted.


author: Mr. Justice Paxson

text:
    Philadelphia City Passenger Railway Company versus Henrice.
    1. Where a fact is established in a cause by evidence, tne jury may properly be allowed to draw therefrom such inferences as are logically deducible from it. Thus if it be shown that the driver of a car was asleep or intoxicated at the time of an accident, a presumption of negligence would properly arise. But the fact from which such inference is to be drawn must first be established. It will not do to presume that he was in that condition from some remote fact, in no way connected with the case, and upon this presumption base the additional presumption of his negligence.' A presumption should always be based upon a fact, and should» be a reasonable and natural deduction from that fact.
    2. A child of tender years was injured by a passenger railway car. The court permitted plaintiffs to ask a witness how many hours the drivers and conductors on the railway were employed each day, for the purpose of showing that the driver of the car which injured the child was physically unable to discharge his duty at the time of the accident. Held, that this was error.
    3. The court charged that if the driver saw the child in the street approaching the car, and in such close proximity that it might reach the track before the car passed, it was negligence on his part not to stop. Held, that this was error ; that the standard of duty in such a case was a shifting one and for the j ury.
    January 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 139.
    Case by Charles Henrice, by his father and next friend, Frederick Henrice, against the Philadelphia City Passenger Railway Company, to recover damages to said Charles, alleged to have been caused by the negligence of defendant.
    At the trial, before Allison,' P. J., it appeared that the mother of plaintiff kept a small candy store on Lancaster avenue. The defendants have two tracks on said street, one for eastward and one for westward bound cars. The track for eastward bound cars is on the south side of the avenue, on which is the residence of Henrice. About nine o’clock on the morning of the 21st of May 1877, Mrs. Henrice had placed her son, a child about sixteen months old, on the floor of her store, with the purpose of waiting on a customer. While so employed the child went into the street, and was knocked over by car No. 127 of the defendant’s line. The mother did not know that the child had left the room until she heard its screams. The child was injured by a car going east on the track nearest the house of Henrice. A woman living opposite had seen the child coming towards the track, and had thrown up her hands and motioned to the driver “ to stop.” Another woman testified that the driver could have seen the child if he had been looking; that one looking on the street could have seen the child. The driver testified that he did not see the child, and that he did not understand the woman who cried out to him, and that his attention had been diverted by a woman who was crossing the track in front of him. The plaintiffs proposed to ask a witness what were the hours of service per day then required by the company of the driver. This to be coupled with the offer to show that the hours of service required of other drivers were required of the driver of the car that ran over the child. Objected to. Objection overruled, and evidence admitted. (First and second assignments of error.)
    The fourth and fifth points of the plaintiff were as follows, both of which the court affirmed:
    4. If the driver saw the child in the street approaching the car, and in such close proximity that the child might reach the track before the car passed, and the car was then far enough from the child to be stopped, it was his duty to have stopped, and in that case his not stopping was negligence. (Third assignment.)
    ' 5. If you believe from the evidence that the driver of car 127 was required by the company defendant to work from seventeen to eighteen hours daily, and if you believe such time of service rendered him unable to discharge his duties properly at the time of the injury, then such facts may be taken into consideration by you as evidence of negligence on the part of the defendants. (Fourth assignment.)
    The verdict was for the plaintiff for $2500. The defendant took this writ, and alleged that the court erred as set forth in the above assignments.

      jD. W. Sellers, for plaintiff in error.
    Instead of proof of negligencé as a fact, the court admitted evidence from which the jury were to make inferences, and from these presume facts. That is, if the jury should think th'e contract of employment of a driver was too long in point of time, then, without any evidence, they were at liberty to believe such time of service rendered him unable to discharge his duties properly, and thus .they could impute negligence to the company. No conclusion is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved; and not themselves presumed. The law requires an open, visible connection between the principal'and evidentiary facts, and does not permit a decision to be made on remote inferences: Douglass v. Mitchell, 11 Casey 443. There is no duty in a driver to assume that a child will run right into a car, and that no parent or adult is on guard: Phila. & Reading Railroad Co. v. Heil, 5 W. N. C. 91.

      Mk H. StutzbacJi and Benjamin H. Haines, for defendant in error.
    It is not necessary, in order to sustain the court below, that the proof that such extraordinary hours of labor were required of the driver (with the consequent deprivation of usual sleep), should go to the extent of raising a legal presumption, that he would sleep or be in a sleepy condition during the day whilst engaged in his duties. Such proof was admissible as furnishing a probability that such would be the effect of such hours of labor upon the driver, and, as a fact in connection with the other circumstances, it is right to refer it to the jury : Tanner v. Hughes, 3 P. F. Smith 290
   Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

The first, second and fourth assignments relate to the same subject, and may be considered together. The first and second allege error in the admission of evidence on behalf of the plaintiff below to prove the hours of service required by the defendant company of its drivers and conductors, whilst the fourth relates to the instructions of the court upon said evidence.

The fact to be proved was, whether the driver of car No. 127 had been guilty of negligence upon the occasion in question in consequence of which the child, Charles Ilenrice, had been run over and injured. Was the evidence objected to of such a character as tended to prove this fact ? It "was undoubtedly competent to prove the condition of the driver at the time the accident occurred; that he was intoxicated, or absent, or for any other reason incompetent to attend to his duties: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Mansfield Coal & Coke Co. v. McEnery, 10 Norris 185. These were specific matters which might have been proved; but how the fact that other drivers and other conductors were allowed only a certain number of hours for sleep and rest could affect the question of this particular driver upon this particular occasion is not apparent. It is easy to see, however, how. such evidence might seriously influence the jury and increase the damages. When a fact is established in a cause by evidence, the jury may properly be allowed to draw therefrom such inferences as are logically deducible from it. Thus if it be shown that the driver was asleep or intoxicated at the time of the accident, a presumption of negligence would properly arise. But the fact from which such inference is to be drawn must first be established. It will not do to presume that he was in the condition referred to from some remote fact in no way connected with the case, and upon this presumption base the additional presumption of his negligence. This would be to found a presumption upon a presumption, which is never allowed. A presumption should always be based upon a fact, and should be a reasonable and natural deduction from such fact. The true rule was correctly stated by Mr. Justice Thompson, in Douglass v. Mitchell's Exrs., 11 Casey 443 : “ That as proof of a fact, the law permits inferences from other facts, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are ascertained by just inferences. Not so with a mere presumption of a fact; no presumption can with safety be drawn from a presumption : there being no fixed or ascertained fact from which an inference of fact might be drawn, none is drawn.” What has been said applies to the charge of the court embraced in the fourth assignment, as well as to the offers of evidence. There was no evidence that the driver of car No. 127 was in any way rendered incompetent to perform his duties in a proper and careful manner by reason of the severity of his labors or the loss of rest and sleep. In the absence of such evidence we have but a mere presumption, and upon this it was not competent to construct the further presumption of his negligence.

There was also error in affirming the plaintiff’s fourth point. (See third assignment.) The point is framed upon the assumption that the driver saw the child approaching the car. There is no evidence upon this point save that of the driver himself, and he says he did not see it until after the injury. It is possible he might have seen it had he been on the alert — some of the witnesses say so substantially — but the point is not so framed. But if he had seen the child “in the street approaching the car, and in such close proximity that the child might reach the track before the car passed,” it was still error to instruct the jury, as a matter of law, that it was negligence for the driver not to stop the car. The standard of duty in such a case was a shifting one, and for the jury, not a fixed rule, the same under all circumstances, and, therefore, for the court. It did not follow that the child would reach the car, and the point was framed upon the mere possibility of its doing so. From the driver’s standpoint, assuming him to have seen the child, it may have appeared extremely improbable. It was a question for the jury to determine whether, under all the circumstances, it was his duty to stop. It was error to rule it as a matter of law.

Judgment reversed, and a venire facias de novo awarded.


author: Mr Justice Mercur

text:
    Goshorn versus Smith.
    1. "When in the opinion of the court the uncontradicted evidence does not warrant the jury in inferring negligence by the defendant as the proximate cause of an injury, the court should direct a verdict for him.
    2. Where the only fact in dispute is an immaterial one, and would not have warranted an inference of his negligence, whichever way decided, and the remaining evidence is uncontradicted and would not warrant an inference of his negligence, the court should direct a verdict for defendant.
    3. Plaintiff was engaged in trying to start a balky horse in a street passenger car. There were two tracks on the street. Defendant was driving on the clear track, and when passing the balky horse the latter suddenly started, and the plaintiff, in stepping back to avoid injury, was struck by defendant's wagon and injured. The only question in dispute was the speed of the wagon. Held, that there was no evidence of negligence by defendant, and the case should not have been submitted to the jury. Held, further, that the speed of the wagon was not a factor in the case, as the action of plaintiff would have resulted in injury had the wagon been going at less speed.
    January 12th 1880.
    Before Sharswood, G. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1878, No. 26.
    Case by John T. Smith against Alfred T. Goshorn, to recover damages for injuries alleged to have been caused by defendant’s negligently driving against plaintiff on a public thoroughfare. The defendant, on the 30th of June 1876, was driving, about six o’clock in the afternoon, from his office of director-general of the International Exhibition to his house in West Philadelphia. He was in a one-horse wagon with seats for four people, open in front and on the sides, and had therein two gentlemen and his colored coachman. He was driving on the right-hand track of the railway on Lancaster avenue. On reaching Forty-second street he noticed a block of cars on that track, and turned into the left-hand track. Here were two or three cars blocked by a balky horse in the front car. The balky horse was the off horse, and the plaintiff had hold of the head of the near horse. He was standing at the horse’s head, and the space between him and the track on which Mr. Goshorn was driving was between three and four feet. The defendant was driving on a clear track, there being no vehicle ahead of him for a half a square. His rate of speed, according to plaintiff’s testimony, was between six and seven, and, according to one witness, possibly eight miles an hour. According to the plaintiff’s evidence, it did not exceed four miles per hour. Just as the defendant’s carriage got opposite the plaintiff, he jumped backwards to escape from the horses which he was holding, they having started suddenly, or, as his wife testified, he was pushed backwards, either against the shaft or against the body of plaintiff’s wagon, and was knocked down and injured.
    The defendant, inter alia, submitted the following point, the answer to which by the court, Pierce, J., constituted the fourth assignment of erron: On the evidence in this case your verdict must be for the defendant. Ans. “ Not affirmed;. reserving the further question whether on the whole evidence the plaintiff is or is not entitled to recover.” The verdict was for $2600. Subsequently, the court directed judgment for the plaintiff on the verdict on his filing a remittitur for all over $700. The remittitur was filed and judgment entered accordingly, when defendant took this writ and, inter alia, assigned for error this entry of judgment and the answer to the foregoing point.

      Lewis Wain Smith, for the plaintiff in error.
    It is always for the court to say whether the facts as proved, are such, that from them the jury have a right to infer negligence. If, believing the plaintiff’s witnesses, there was not enough upon which to found a reasonable conclusion, it is not a question of the weight of evidence, but there is no evidence at all: Penna. Railroad Co. v. Shay, 1 Norris 198; Cleveland Railroad Co. v. Rowan, 16 P. F. Smith 393; Gramlich v. Union Railroad Co., 9 Phila. R. 78; Railroad Co. v. McElwee, 17 P. F. Smith 311; Gerety v. P., W. & B. Railroad Co., 31 Id. 275.
    In a case in which a court ought to say there is no evidence sufficient to authoi'ize an inference, then the verdict would be without evidence, not contrary to the weight of it. Wherever this is so they have the right and it is their duty to withhold it from the jury: Howard Express Co. v. Wile, 14 P. F. Smith 201; Hoag v. Lake Shore Railroad, 4 Norris 293; Philadelphia & Reading Railroad Co. v. Heil, 5 W. N. C. 91.
    It is contended, however, by the defendant in error, that the question of what is or is not negligence must be submitted to the jury in every case, except where a fact is proved which has been decided to be legal negligence. In other words, the court can never pass upon what is or is not negligence unless a precisely similar case has been already adjudged. This view of the law has, however, been frequently denied by this court, and the reports abound with cases in which the judges at Nisi Prius have granted nonsuits, or directed verdicts for defendants upon a state of facts entirely novel, and which have never been passed upon as negligence in law: Railroad Co. v. Fries, 6 Norris 234; Hoag v. Railroad Co., supra; King v. Thompson, 6 W. N. C. 241. The only disputed fact was as to the rate of speed, and that was immaterial: Philadelphia & Reading Railroad Co. v. Long, 25 P. F. Smith 263. The defendant had no reason to believe that plaintiff would suddenly change his position, whereby he wmuld put himself in more danger, and was under no obligation to guara agamst that danger: Penna. Railroad Co. v. Morgan, 1 Norris 141; Philadelphia & Reading Railroad Co. v. Hummell, 8 Wright 379. It was the duty of plaintiff to have looked about him to see if there was danger by persons riding or driving when he was thus engaged in the middle, of a highway: Wynn v. Allard, 5 W. & S. 524; Pluckett v. Wilson, 5 Car. & P. 379.

      Henry Hazelhurst and Isaac Hazelhurst, for defendants in error.
    The point reserved, was whether the learned judge who heard the case at Nisi Prius, should have entered a nonsuit. The nonsuit was asked for on two grounds: 1. There was no evidence of defendant’s negligence. 2. There was evidence of negligence on the part of plaintiff. It is admitted, that a plaintiff cannot recover for an injury to which his own negligence contributed, but with the qualification, that whether a particular act was negligence under all the circumstances, and whether it really did contribute to the injury, is a question for the jury, in all cases where the degree of care required of the plaintiff has not been legally determined : Catawissa Railroad Co. v. Armstrong, 2 P. F. Smith 282 ; Pennsylvania Railroad Co. v. Ackerman, 24 Id. 265.
    The question of speed is always for the jury, under the circumstances of the particular case: D. L. & W. Railroad v. Smith, 28 Leg. Int. 101; Pennsylvania Railroad Co. v. Morgan, 1 Norris 134; Beers v. Housatonic, 19 Conn. 566; Garmon v. Bangor, 38 Me. 443.
    So also the necessity for extreme caution in driving through a crowd: Edsall v. Vandemark, 39 Barb. 589. Cases collected Wharton’s Neg., 2d ed., sections 313, 389, a, 820, d. So likewise the question, w’hether defendant being on the wrong side of the way, was not bound to take more than ordinary precaution to avoid collision : Pluckwell v. Wilson, 5 C. & P. 375; Turley v. Thomas, 8 Id. 103; Kennard v. Barton, 25 Me. 39; Brooks v. Hart, 14 N. H. 307; Earing v. Lansingh, 7 Wend. 185. The question of defendant’s negligence must be determined from the whole case. The facts, though admitted, are for the jury: Beers v. Railroad, supra.

   Mr Justice Mercur

delivered the opinion of the court, March 8th 1880.

This is an action on the case. It was brought to recover damages for injury sustained by the defendant in error by reason of the alleged negligent conduct of the plaintiff in error. To maintain the action the evidence must show' the injury to have resulted from the negligence of the latter, without any .negligence of the former contributing thereto: Waters v. Wing, 9 P. F. Smith 211. It is not necessary to defeat a recovery that the complainant should have been equally as guilty of negligence as the opposite party. And concurring negligence of the defendant in error in causing the injury is a complete defence: Catawissa Railroad Co. v. Armstrong, 13 Wright 186. In case of contributing acts of negligence the law will not determine whose wrong doing mostly caused the injury: Little Schuylkill Navigation Co. v. Norton, 12 Harris 465. This rule extends to the case where one is killed and the action is brought by surviving relatives: Gerety v. Philadelphia, Wilmington & Baltimore Railroad Co., 31 P. F. Smith 274. Accidents may occur, and injuries may be sustained through negligence, for which the law gives no redress in damages.

Negligence may be said to be the absence of that care which a prudent man would naturally exercise under the circumstances: Catawissa Railroad Co. v. Armstrong, supra.

Where there is conflicting evidence as to the acts bearing on the question of negligence it is for the jury. So if there be no doubt as to the acts committed, yet if there be substantial doubts as to the inferences to be drawn from those acts they should be submitted to the jury: Pennsylvania Railroad Co. v. Barnett, 9 P. F. Smith 259; Johnson v. Bruner, 11 Id. 58; McKee v. Bidwell, 24 Id. 218. But whether a given state of facts admitted or proved, constitutes negligence is generally a question of law to be declared by the court: Catawissa Railroad Co. v. Armstrong, supra; Philadelphia, Wilmington & Baltimore Railroad Co. v. Stinger, 28 P. F. Smith 219; Gerety v. Railroad Co., supra.

Where facts have not been shown, from which negligence may reasonably be inferred, they should not be submitted to a jury to infer, arbitrarily and without evidence, that there was negligence: Philadelphia & Reading Railroad Co. v. Yerger et al., 23 P. F. Smith 121; Same v. Heil, 5 W. N. C. 91; Clark v. Philadelphia & Reading Railroad Co., Id. 119; Pennsylvania Railroad Co. v. Fries, Id. 545.

This accident occurred in Lancaster avenue, where there are two street railway tracks. There was a block of cars on the right hand track leading toward the centre of the city, occasioned by the off horse in the front car balking. The defendant in error had hold of the head of the near horse for the purpose of starting the horses. The wagon of the plaintiff in error, containing four men, and drawn by one horse, was moving in the same direction on the left hand track. The space between the two tracks was some three or four feet in width. Just as the wagon was passing this car, the horses attached thereto started, and to protect himself against probable injury from the horse which he was holding, the defendant in error stepped back suddenly and was struck by, or came in contact with, the wagon. He testified, “ I don’t think I jumped back; I stepped back just far enough to get clear of the ear. I stepped back one step, I think.” He further testified, “ the carriage struck me ; both wheels went over me; the shaft struck me first.” His wife testified: “As he started the horse jumped towards him and knocked him back.” Kimble, another witness called by-defendant in error, swore : “ Mr. Smith stepped back from the horse’s head because the horse came out of his place.” Coomy testified “ if Smith had not stepped out of the way, the horse would have stepped on him, and the body of the car would' have struck him.” The other witnesses called by the defendant did not state the facts as fully, but their testimony did not conflict with that which we have quoted. The plaintiff in error testified when “ he (Smith) sprang back, he struck the rear of the seat on which the driver was seated.” Mr. Asch, a witness of plaintiff in error, testified : “ This man jumped back and struck the carriage behind the driver’s seat.” Thus all the evidence shows the injury was caused by reason of the defendant suddenly stepping or jumping back, whereby he came in collision with the wagon. The only conflict of evidence was as to the speed with which the wagon was moving. The witnesses on the part of the defendant in error thought it was seven or eight miles an hour; those on the part of the plaintiff in error from two to three miles an hour. We, however, are not able to see that the injury resulted from the greatest speed named. If the wagon had been moving at half that rate, and been in the same relative position with the car, the action of the defendant in error would have resulted in his injury. The wagon was moving on the track, where it had a legal right to be. That track was wholly free and unobstructed; the wagon did not leave that track and go nearer to the car, or to the defendant in error. The driver of the wagon had no reason to suppose that any one would suddenly move so near the track occupied by the wagon as to come in contact with it. If those occupying the wagon had no reason to anticipate such action, it is very clear they were not guilty of any negligence in not guarding against it. Conceding that the action of the defendant was excusable to save himself from being injured by the horse attached to the car, so that he may not have been liable to an action in case he had injured the plaintiff in error by this sudden and unexpected movement, yet it by no means follows that he has a right of action for injuries which he thereby sustained. The case rests solely on the alleged negligence of the plaintiff in error. A careful examination of the whole case does not show evidence sufficient to justify the court in submitting the question of the negligence of the plaintiff in error to the jury. The learned judge therefore erred in not affirming the point covered by the fourth assignment.

Judgment reversed.