author: Mr. Justice Trunkey

text:
    Sheets versus Allen.
    The principles which govern mining leases, that actual possession of the tenants carrying on the mining operations, is notice of his interest to a third person, as fully as is the tenancy of a dwelling-house, and that if the lease is for a term not exceeding three years, it is valid, though not in writing, apply to a lease of land with right to quarry minerals or dig clay.
    February 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1878, No. 143.
    Trespass vi et armis by Sheets & Hinclde against Benjamin Allen and John A. Gerritt, for digging and removing clay from the premises of plaintiffs.
    At the trial before Mitchell, J., it appeared that on May 20th 1874, Gerritt, one of the defendants, by deed, without reservation, conveyed to John J. Griffith, the land out of which the alleged trespass arose, and that in May 1875, the plaintiffs, at public sale, without any' reservation, purchased the same from Griffith. The property in question, which consisted of a number of lots, was originally bisected by the Buck road, and running as it did diagonally through the land cut it up into irregular parcels. Gerritt, it appeared, owned on one side of the road and Griffith on the other, and when in 1873 the road was abandoned and the land reverted to the owners, Gerritt, for'the purpose of squaring the lines, conveyed to Griffith the lots in dispute, which were in part the land which reverted to Gerritt out of the Buck road. In 1854 Gerritt had leased to Allen a tract of land, including a portion of the tract in question, at a yearly rental of $1000, with the right to dig clay. Under this lease, which was in writing and under seal, Allen took possession and erected brick-kilns, sheds and offices. When the land which had been embraced in the Buck road reverted to Gerritt by the vacation of the road, Allen, under a verbal lease made in 1873 or 1874, proceeded, under the direction of Gerritt, to take the clay therefrom. The clay had already been taken from a portion of the land when the plaintiffs received their deed from Griffith, and Allen was proceeding to remove the rest, under instructions from Gerritt to do so, when the plaintiffs notified the men Avho were digging the clay that they were working upon plaintiffs’ ground. The men paid no attention to the notice, and resumed their digging, when plaintiffs had them arrested. Allen was subsequently served with notice, but pending proceedings in equity for an injunction he removed the clay from the whole plot.
    The court, under objection, admitted the following offer of defendants :
    “ That Allen was a tenant of Gerritt, for these premises, prior to conveyance to plaintiffs, for over twenty years; that the fact was well known to Sheets, and that he was in possession of' these lots, under his lease, with the right to dig clay, before plaintiffs bought from his landlord.”
    The plaintiff asked the court to charge as follows:
    If Gerritt conveyed the premises in question to Griffith, in May 1874, without reserving any rights, and the latter conveyed to the plaintiffs, in 1875, without reservation or notice, the lease relied on would have no force as against the plaintiffs, and the defendants had no authority in January 1876, to enter upon the land and remove the clay, and the verdict should be for the plaintiffs ; which the court refused, because there was no evidence of any notice on the part of the defendants’ landlord or his grantees, the plaintiffs, to terminate the lease.
    In the general charge, the court said:
    “ If there was a lease for these premises, either verbal or -in writing, prior to the conveyance to Griffith, then Allen was entitled to the possession of that property, and to take away the clay from it, and no conveyance of his landlord would affect these rights; and they were not subject to any action of his landlord or any other purchaser, over his head. When Sheets became owner of this property he acquired then the right which Gerritt previously had to give notice to Allen that he had determined to terminate the lease, but there is no evidence of any such notice having been given, and therefore the plaintiffs proceeded as if there was no lease. If Allen was a tenant before Sheets bought the property, then he was entitled to take the clay.”
    The jury returning to the court for further instructions as to the effect of a verbal lease, the court then said :
    “If there was a verbal lease made in 1873, to cover the lots in question, it was a lease from year to year, and if notice was not given by the plaintiffs to the defendants to quit at the end of any year, the lease would be binding as to them, and they cannot recover.”
    The verdict was for defendants, and after a motion for a new trial had been refused, the plaintiffs took this writ and assigned for error the admission of the above evidence, the answer to plaintiff’s point and the foregoing portion of the charge-.

      J. M. Moyer, for plaintiffs in error.
    Clay is a part of the land, and would pass to the heir by inheritance, and not as a chattel to the executor or administrator: Toller’s Law of Executors 193 •; Roberts on Frauds 365; Richard Lilford Case, 11 Rep. 85. As part of the realty the right to take it cannot exist except by deed: Huff v. McCauley, 3 P. F. Smith 206. Allen had no deed, not even a written lease to enter and take the clay. He was not in possession of the land which was a part of a common open to the public, and for which, at the time of the conveyance to plaintiffs, he had paid no consideration. The case therefore does not fall within the principle of an executed license, as laid down, in LeFevre v. LeFevre, 4 S. & R. 241. Whatever the license was, it remained executory at the time of the conveyance, and therefore revocable. It was terminated by the deed to Griffith by the licensor: Yeakle v. Jacobs, 9 Casey 877 ; Drake v. Wells, 11 Allen 142; Coleman v. Foster, 1 Hurlst. & N. 37; Tillotson v. Preston, 7 Johns. 285; Whitemarsh v. Walker, 1 Mete. 316.
    The court below treated the case on trial as though it were a tenement, occupied by a tenant, or enclosed land actually in the possession of the defendant for the purposes of cultivation, in either of which cases the ruling might be free from exception. In such a case possession would have been notice to the vendee, and he would have taken subject to the rights of the tenant, whether the lease was in writing or by parol, and notice to quit at the end of the year would have been necessary to dispossess the tenant. Here there was no one in possession to notify.

      W. A. Manderson, for defendants in error.
    Allen claimed the right to dig and take the clay from the lots in question, under the lease executed to him in 1854. True, at the time of the execution of the lease, the lots in question were part of the bed of Buck road, a public highway, but when in 1873 the said road was vacated, the title to the same reverted to the owners on each side, and under his ■ lease from that portion which reverted to Gerritt, Allen had the undoubted right to dig and take the clay.
    It was not a mere license in Allen to dig and take the clay, but it was a right by grant — created and existing by deed — by this lease executed in 1854, and under which he claimed.
   Mr. Justice Trunkey

delivered the opinion of the court, February 17th 1879.

At the outset, the plaintiffs assume that Allen’s defence was a parol license to enter upon the land and dig clay, without limit as to time or quantity. Upon this their argument is built, fortified by numerous authorities, demonstrating that the learned judge committed a series of blunders. There is no escape from this conclusion, if it be that Allen claimed an incorporeal hereditament — a mere right to take clay — resting upon an oral promise. Therefore, we pass at once to consider the nature of the defence, as set forth in the defendants’ offer of testimony, the receiving of which is assigned for error, namely, “ that defendant Allen was a tenant of Gerritt, for these premises, prior to conveyance to plaintiffs, for over twenty years; that the fact was well known to Sheets, and that he was in possession of these lots, under his lease, with the right to dig clay, before plaintiffs bought from his landlord.”

Instead of a mere license, the defendants put forward an actual interest or estate in the land, a leasehold in possession of the tenant, which was known to the plaintiffs when they purchased and took title. In order to constitute a lease of mines, it is not necessary that the lessee should have an interest in the surface, for minerals may form a distinct inheritance in the lands of which they are part, and consequently an estate may be created in and restricted to any specified mineral. In the mining districts leases of lands for purposes of taking ore, coal or petroleum, are common, wherein the tenants are restricted to the use of only so much of the surface as necessary for mining purposes, with right in the lessor to use the surface as he chooses, save that he may not interfere with the rights of the lessee. Frequently the lands -are unoccupied for any purpose other than the mining, and frequently they are occupied by the lessor for agricultural or other uses. The actual possession of the tenant, carrying on his mining operations, is notice of his interest to a third person as fully as is the tenancy of a dwelling-house. And if the lease is for a term not exceeding three years, it is valid, though not in writing. A parol agreement that a person shall enter on the land of another, dig ore, erect buildings, &c., and pay fifty cents a ton for all ore removed, amounts to a lease: Moore v. Miller, 8 Barr 272. Like principles apply to a lease of land with right to quarry minerals or dig clay. The right of a tenant in possession, under such a lease, is not extinguished in favor of a purchaser who knew the fact. And when the tenant is taking the clay, the notice to third persons of his estate is marked, for the working is upon the surface. It is none the less a' lease, if the land is not enclosed or cultivated. The offer was admissible, and if the testimony established the facts as therein alleged, the defence was complete. That the evidence thereof was sufficient to submit to the jury, is not denied; nor is error assigned to its submission. Indeed Shoots himself testified that he knew Allen was Gerritt’s tenant, and had his brick-yard on the ground; that he dug clay for his bricks, and had taken about eight feet off the west lot at time of purchase, and that there was no division of the property into lots, except on paper. This matter may have been materially qualified, or explained away, by other parts of his testimony, in its application to the land he purchased. The whole testimony was for the jury. The learned judge seems to have clearly apprehended the nature of the defence, and his rulings, as set forth in the assignments of error, were entirely sound.

The plaintiffs raised and discussed some points not embraced in the assignments, upon which the court was not requested to charge, and these cannot now be considered. If error was committed, it must be shown by the record. For aught that appears, the court gave correct instructions in reference to the portions of land occupied for a highway, prior to vacation of Buck road in 1873.

Judgment afiirmed


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    D’Arros’s Appeal.
    1. A failure to support his wife must concur with drunkenness to deprive the husband of the right to the wife’s personal property, under the provisions of the Act of May 4th 1855.
    2. The Supreme Court will not review the findings of fact in the Orphans’ Court unless the entire evidence is brought up.
    3. It seems, it is ground for the dismissal of an appeal that it is taken by one who did not file the exceptions in the court below.
    February 3d 1879.
    Before Sharswood, C. J., Merctjr, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879. No. 61.
    Appeal of Marie D’Arros, from the decree of the court confirming the adjudication upon the account of the executor of the estate of Marquerite Cremers, deceased.
    The decedent died March 28th 1874, leaving a will bearing date the day of her death. She left surviving, her husband, Oalixte Cremers, but no issue.
    Decedent, after bequeathing certain pecuniary legacies to persons named in her said will, gave and bequeathed all the residue of her estate unto her sister, Mary Roberts, and further provided, as follows : “I do not desire any construction to be placed upon any clause of this will by which any of my said estate shall accrue to my husband, Oalixte Cremers.”
    Decedent and her husband were both natives of France. She first emigrated to the United States and came to this city. After some time she returned to her native land and there was married. In the year 1868, decedent and her husband arrived in this city, with about $200 in money in their possession, with which they began housekeeping in an humble manner, occupying but two rooms in a small dwelling-house. They were industrious and frugal. Decedent went out from her home to work as a dress-maker, and her husband labored at home at his trade as a tailor. They thus lived and labored for about two years. Their savings were deposited by decedent for safe-keeping at the “ Academy of Notre Dame” with the sisters in charge. At the end of this period of time, decedent and her husband had saved and accumulated sufficient money to enable her to purchase the establishment of a French mantua-maker, on Locust street above Twelfth, to which they both removed. Decedent and her husband had cards printed and circulated bearing their joint names; but she managed the dress-making business, while he continued to work for various parties and firms as a tailor and cutter, and when at home assisted his wife by keeping her books of account and making out bills to her customers. About three years prior to decedent’s death, her husband began the habit of indulging to excess in the use of intoxicating liquor. He, although working at his trade, would very frequently return home in an intoxicated condition. He would be seen upon the public streets in this condition, both by day and night; was often brought to his home by a police officer, and upon one occasion was taken to the police-station and fined for drunkenness. At other times he was sober, worked at his trade regularly, gave his wages to his wife, and assisted her in the business carried on by her. Their domestic relations were harmonious, but marred by claimant’s habits of frequent intoxication. Husband and wife attended church, together. She was kind and affectionate towards him and nursed him in sickness. Decedent managed the domestic affairs of her household, provided for its wants, paid the rent, servant’s wages, &c., and during the latter part of her life, at least, if not from the beginning of her married life, she had the control and management of everything connected with the livelihood of herself and husband.
    In August 1873, she provided him with the funds- necessary for a visit to France, in order to see his relatives, and to bring with him a niece, to learn the trade of a mantua-maker. Decedent after-wards expressed her intention of joining her husband abroad, but never carried out that intention. When he sailed, she with a number of friends accompanied him to the steamer, to witness his departure, and during his absence corresponded with him by letter. He went abroad in August 1873, and during his absence found employment in France. As stated, decedent died in March 1871, after a short illness. Her husband was without the means to immediately return home, but as soon as he was able he came to this city, went to his residence, but was refused admission by his sister-in-law (his wife’s sister), who was in possession of the premises. He after-wards obtained an entrance with the aid of a constable, and, accompanied by his counsel, had an interview with his sister-in-law and the executor of his wife’s will, the present accountant. The husband took no further legal proceedings, so far as appeared from the evidence, but allowed the executor to remain in charge of the assets and property claimed by the latter as the separate property of his testatrix. The executor, however, had full notice of the claim of ownership by the husband; and notwithstanding this fact he entered upon the administration of the estate, incurred expenses, paid collateral inheritance tax and bills presented by parties claiming to be creditors of the decedent. The husband claimed the balance of the fund after the payment of the expenses of the administration.
    The auditing judge, Hanna, P. J., found the following facts :
    “ 1. That decedent and her husband, when they arrived in this country, were in very humble circumstances, their joint fortune amounting to $200.
    “ 2. That each worked at the trade they had learned, and by the savings of their joint earnings were enabled to enter upon a more extensive business, managed almost exclusively by decedent. That said business was commenced in the joint names of husband and wife, but the latter was the manager.
    “ 3. That the husband continued to work at his separate occupation, assisting his wife when at home, and giving his wages or part thereof, to her.
    “4. That the husband became addicted to the frequent use of intoxicating liquors, but did not become a sot and habitual drunkard.
    “ 5. That he did not desert his wife at any time, nor neglect or refuse to contribute to her support.

      “ 6. That the goods and chattels, property and effects, in the possession of decedent at the time of her death, were in the joint possession of herself and husband, who was temporarily absent in France, with her knowledge and consent. And that the moneys in her possession, and due to her, were the savings and results of a business carried on and managed by her, with the assistance from time to time of her husband, and moneys received from him.”
    The learned judge was of the opinion, therefore, that the facts did not present such a case as is contemplated by the Act of May 14th 1855; and that in view of these facts, the husband must be considered as the owner of the goods and chattels, stock in trade, if any, moneys and other personal property, in the possession of his wife at the date of her death, and entitled to the custody of the same.
    The balance of the fund in the hands of the executor, was then awarded to the husband, the credit of the accountant for the collateral inheritance tax being disallowed. The executor filed exceptions which the court dismissed and confirmed the adjudication. No exceptions were filed by Marie D’Arros, but she took this appeal from the above action of the court.

      Benjamin Harris Brewster, for appellant.
    The husband, by his constant use of intoxicating drinks, was incapacitated from contributing to the support of his wife. He practically abandoned her by remaining abroad. He is clearly within the provisions of the Act of 1855: Black v. Tricker, 9 P. F. Smith 13.

      Daniel Dougherty, for appellee.
    The entire property, being the joint earnings and savings of both husband and wife, belonged to the husband: Speakman’s Appeal, 21 P. F. Smith 25; Bucher v. Beam, 18 Id. 421. The husband was not an habitual drunkard. He did not refuse to support his wife, nor was his absence in Europe with any intention of deserting her. His indulgence in drink was occasional, not continuous. This case is clearly distinguishable from Black v. Tricker. There the husband repeatedly and for a long period of time, ill-treated and neglected his family, and refused to provide for their support, and the property was acquired after the period of drunkenness and refusal to provide. But the appellant filed no exceptions in the court below. This court will not, therefore, reverse: Mylin’s Estate, 7 Watts 64; Hise’s Estate, 5 Id. 157.
   The judgment of the Supreme Court was entered March 3d 1879.

Per Curiam.

The evidence printed in the appellant’s paper-book is headed “Summary of Testimony.” It is clear that to enable this court to review the findings of fact in the court below, the entire evidence should be brought up. The present appellant did not file exceptions, and the executor who did has not appealed. He is the only party aggrieved by the surcharge of the collateral inheritance tax, and that exception is not before us. We think, however, though the appeal might be dismissed on these grounds without going further, that the conclusion arrived at by the learned court, from the facts as found by the auditing judge, was entirely right.

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


author: Mr. Justice Paxson

text:
    James’s Appeal.
    1. Whether a person holding personal property in pledge for money loaned, can retain such property as security for advances subsequently made, must depend upon the understanding and agreement of the parties at the time such subsequent advances were made.
    2. Where a broker has obtained a loan for his principal, and holds certain chattels as security therefor, he cannot, in the absence of a special agreement, appropriate the proceeds of said chattels to the payment of a debt due to him by the principal.
    3. The administrator of an insolvent estate, cannot by his mere agreement bind the estate in such manner as to take the assets out of the course of distribution provided by law.
    February 3d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 30. In equity.
    Bill in’ equity filed by B. W. Harper, administrator of the estate of John P. Bankson, deceased, against William A. James, trading as James & Co.
    The facts, as reported by the master, were in substance these: Bankson was in the habit of borrowing money through James, who was a broker. Bankson gave his notes to the lenders, and delivered to James certain whiskey as collateral security therefor. The notes provided that in case they were not paid at maturity, the lenders might sell the whiskey and apply the proceeds to the payment of the notes. In September 1876, Bankson, through James & Co., obtained two loans from one Poultney, which were secured, as above stated, by a pledge of the whiskey, the quantity of which at this time was ’more than sufficient to satisfy all claims against it. Shortly thereafter Bankson borrowed from James & Co. on their own account about $1800, for which there was no specific collateral pledged. Bankson died insolvent in December 1876, and the plaintiff was appointed his administrator. With his consent, James sold the whiskey and applied the proceeds to the payment of the notes of Bankson, reserving therefrom $1800 for the payment of his own loan, and claiming a commission. The bill filed by the administrator prayed for discovery, an injunction to restrain the defendant from selling the collateral until an account was stated and general relief. The defendant answered that he had sold the whiskey at the instance of plaintiff, and had rendered him an account thereof, which was approved by plaintiff, and that defendant had no other collateral. The plaintiff filed a general replication, and the case was referred to an examiner and master, who found the facts, in substance, as above, and further that there was no agreement between the parties to sell the collateral for any general account, but that plaintiff was'willing that defendant should sell the collateral and apply the proceeds to the payment of the sum of money due and specifically secured by the same.
    The collateral notes or bills of sale stated specifically whát the proceeds of collateral sold under this power should be applied to. Neither the due-bill nor check of James & Co. were included as indebtedness to be paid as set forth in the collateral notes or bills of sale.
    The master was, therefore, of opinion that the defendant had no right to retain and keep out of the proceeds of the sale of the col-laterals the amount of the due bill and the check which constituted the amount of Bankson’s indebtedness of $1800 to James & Co. personally. The master further found as a fact that there was not sufficient testimony to establish a custom authorizing a note and bill broker to retain out of the sales of collaterals, held as security for notes discounted by him, a commission for himself of 2§- per cent., and therefore reported that the defendant had no authority to retain the amount charged by him as commissions.
    The defendant excepted, and his exceptions having been dismissed by the court, and the master’s report confirmed, he took this appeal.

      Samuel Grustine Thompson, for appellant.
    The circumstances here raised the presumption that the new loan was made upon the credit of the pledge, and was so understood by the parties. He who seeks equity must do equity, and the plaintiff seeking the-assistance of the court, ought to pay all the moneys due to the creditor, as it is natural to presume that the pledgee would not have lent the new sum, hut upon the credit of the pledge which he had in his hands before: 1 Story Eq., sect. 1034; Anon., 2 Vern. 176; Baxter v. Manning, 1 Id. 244; Dennisbray v. Metcalfe, 2 Id. .698. James acted in the double capacity of a broker and commission-man, and was entitled to compensation in both capacities.
    . John M. Read and Silas W. Pettit, for appellee.
    The appellee contends that where one lends money specifically on a certain pledge, and afterwards advances further sums, the presumption is that these latter advances are made on the faith of the pledge given for the former ones, and that equity will not enforce the- return of the pledge because of the payment of the first loan, until the pledgor do equity by paying also the other loans.
    This proposition is certainly a doubtful one ; but whether sound or not, can have no application in this case, because Poultney and not James had made the former loans, and had the custody of the collateral.
   Mr. Justice Paxson

delivered the opinion of the court, March 3d 1879.

Whether a person holding personal property in pledge for money loaned can retain such property as security for advances subsequently made, must depend upon the understanding and agreement of the parties at the time such subsequent advances are made. It is said in Story on Bailments, sec. 304: “ The mere existence of a former debt due to the pledgee does not authorize him to detain the pledge for that debt, when it has been put into his hands for another debt or contract, unless there is some just presumption that such was the intention of the parties. The like rule applies to a subsequent debt or loan contracted by the pledger; for in such a case the new debt or loan will not be deemed attached to the pledge, so that the pledgee may retain the same therefor, unless from all the circumstances there is just ground of presumption that the new debt or loan was made upon the credit of the pledge, and was so understood by the parties. The rule in all these cases strictly applies, that the particular contract is to govern the rights of the parties. Modus et eonventio vincunt legem.” The learned author cites numerous authorities in support of his text. In Buckley v. Garrett, 10 P. F. Smith 333, it was held that if a debtor at or immediately after the execution of a mortgage on his property to a creditor, transfers to him a policy of insurance against fire on the mortgaged premises, though nothing be expressed at the time, or it be transferred as collateral security generally, it is a conclusion of law from the very nature of the transaction, that the policy is to be held by the creditor as a collateral security for the mortgage. Says Sharswood, J.: “ It would require evidence of an express agreement or understanding to authorize the assignee to apply the amount of the insurance received, in the event of a loss, to any other debt or liability.” The appellant, while conceding that the rule at law is as above stated, contends that in equity it is not so in the case of a pledge of chattels, and that in such case, without any distinct proof of a contract for that purpose, the pledge may be held until the subsequent debt or advance is paid, as well as the original debt. Such a rule is undoubtedly recognised in Story on Equity, at sec. 1034. The ground of the distinction is that he who seeks equity must do equity, and the plaintiff seeking the assistance of the court, ought to pay all the moneys due to the creditor to entitle him to equitable relief. Conceding all that can be claimed for this principle, it does not apply to this case. The money for which the whiskey was pledged was borrowed by Bankson from Charles W. Poultney. The latter held the notes, together with the transfer of the whiskey, and power to sell the same upon the non-payment of said notes. The appellant was a mere broker, and negotiated the transaction. That Poultney permitted him to retain the papers and control the whiskey, can make no difference. The right of possession and the legal title were in Poultney. Had Bankson paid the notes, he could have been compelled to return the whiskey under the express terms of the bill of sale. Had Poultney made further advances, and this bill had been filed against him, the equitable rule referred to might possibly have been enforced. It has no application to the appellant, as the whiskey was pledged to other parties for money loaned by them at the time he made the advances to Bankson of the respective sums of $1200 and $600.

The master finds as a fact that there was no agreement between the appellant and the administrator of Bankson that the former should sell the whiskey on general account; but that, on the contrary, the administrator was willing that the collaterals should be sold, and the proceeds applied to the payment of the notes for which they were specifically held.

We do not think this is important, as it is clear the administrator of an insolvent estate cannot, by his mere agreement, bind the estate in such manner as to take the assets out of the course of distribution provided by law.

We need not discuss the questions of brokerage and commissions. While no opinion was filed by the court below, the learned master has given sufficient reasons to justify his conclusions upon these points.

The decree is affirmed and the appeal dismissed, at the costs of the appellant.

Justices Mercur and Gordon dissented.


text:
    Breuckmann versus Twibill.
    In coyenanfc upon a lease for rent, the tenant in an affidavit of defence averred that he had removed before the end of his term, that he had surrendered the lease, and that the landlord had entered and made such repairs as could not have been made while the tenant was in possession. He did not, however, aver an acceptance of the surrender by the landlord. Held, that taking possession, repairing, advertising the house to rent, are all acts in the. interest and for the benefit of the tenant, and do not discharge him from his covenant to pay the rent,
    February 3d 1879.
    Before Sharswood, C. J., Mercue, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common, Pleas, No. 1, of Philadelphia county: Of January Term. 1879, No. 70.
    Covenant on a lease by George A. Twibill against Reinhard Breuckmann, to recover two months’ rent of a dwelling-house, and a gas bill.
    Twibill leased the premises in question to defendant for one year from August 1st 1873, at $25 per month. The lease contained a condition that the tenant should pay for all the gas consumed on the premises. Defendant remained in possession until April 30th ■1878, when he removed, having paid the rent to that date. Twibill then entered, made certain repairs and brought an action for two months’ rent, ending June 1st and July 1st 1878, of the unexpired term, and a gas bill. The defendant filed an affidavit of defence, wherein he averred that deponent rented the house in dispute from plaintiff, as set forth in the lease filed, but moved out of the said house April 30th 1878, and surrendered the term to the plaintiff, paying him the rent in full to that date, whereupon the plaintiff immediately took possession of said premises and proceeded to repair the house, by building a new bath-room, a new porch, putting in a new range, and making general repairs, such as could not have been done while the house was occupied by a tenant; tliat deponent saw the house repeatedly during the time for which rent is claimed in this suit, and plaintiff was in possession all that time, and said repairs going on for the greater part of the time. And deponent further says, as to the gas bill charged in said statement, that he had not used gas upon said premises for over two years before surrendering the same; that the pipes in the house leaked so that an employee of the gas office, upon examination, declared it to be dangerous to use the gas with, the pipes in the condition they were, and that the gas ought to be turned off or pipes repaired; that plaintiff, although notified, neglected and refused to repair or supply new pipes, whereupon the gas was turned off by the gas office employees at the stop-cock upon the pavement over two years theretofore, since which time no gas has been.used upon said premises, and deponent therefore says that he is not indebted to plaintiff in any amount whatever, and expects to be able to prove all these facts upon the trial of this case.
    A rule for judgment for want of a sufficient affidavit of defence was taken by plaintiff, which the court made absolute, when defendant took this writ, assigning this action for error.

      Kdward D. McLouglilin and Win. Knight Shryock, for plaintiff in error.
    In an action for rent reserved by lease, the defendant can only discharge himself by proof of a surrender, release or eviction: Snyder v. Middleton, 4 Phila. 843. The facts to establish a rescission of a lease are for the. jury: Kiester v. Miller, 1 Casey 481. The receipt of the key and the other acts of plaintiff ■ amounted to an acceptance of the surrender: Dos Santos v. Hollingshead, 4 Phila. 57; Pier v. Carr, 19 P. F. Smith 326 ; Tiley v. Moyers, 7 Wright 404.

      William Grorman, for defendant in error.
    The affidavit does not aver an acceptance of the surrender, and it is not sufficient: Philadelphia Fire Extinguisher Co. v. Brainerd, 2 W. N. C. 473; Bradley v. Brown, 6 Id. 282. It is not averred that the repairs prevented the renting of the house, and they were really in the interest of the tenant: Marseilles v. Ker, 6 Whart. 500; Pier v. Carr, supra. The latter case, and that of Dos Santos v. Hollingshead, supra, are clearly distinguishable from this case.
   The judgment of the Supreme Court was entered, March 3d 1879,

Per Curiam.

The plaintiff in error in his affidavit of defence very carefully avoided alleging that there was a surrender of the lease accepted by the landlord. Certain facts are averred, which, standing by themselves, would be evidence from which a jury might infer a surrender, but yet entirely consistent with a distinct refusal. Taking possession, repairing, advertising the house to rent, are all acts in the interest and for the benefit of the tenant, and do not .discharge him from his covenant to pay the rent.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Pennsylvania Railroad Company versus Werner.
    1. If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man placed under such circumstances, if he uses his judgment honestly, is not responsible, although he might have done better, if he had acted differently.
    2. When points submitted to a court assume certain facts, and conclusions of law are drawn therefrom, which would be correct if the facts were as assumed, it is proper for the court to affirm such points with the qualification, “if the jury find the facts as assumed."

      February 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 129.
    Case by Elizabeth Werner and her children to recover damages for the death of her husband, August Werner, alleged to have been caused by the negligence of defendant.
    The two tracks of the defendant’s railroad cross Erie avenue in the outskirts of Philadelphia. On the morning of February 24th 1877, the deceased, who was a paper carrier, was observed standing on the crossing about five feet from the east track of the railroad, on which was slowly passing a long train of coal cars. As soon as the caboose, at the rear of the coal train passed, Werner walked across the east track, and in attempting to cross the west one, was struck by a passing engine coming from the direction in which the coal train was moving, and was instantly killed. One of the plaintiffs’ witnesses, a brakeman on the coal train, testified that he saw Werner standing on the crossing, and that as soon as the caboose of the coal train cleared the crossing he walked across, and that witness called to him to look out, “ but he never looked up and went straight on;” and, stated the witness, “I would have done the same thing.” Another brakeman testified, on behalf of plaintiffs : “ Werner was looking on the other side when I first saw him after he had passed the caboose. I can’t tell which way the man was looking when he was crossing. He just looked across and started. He must have looked up the track, for he started or drew back, but did not get away quick enough. Werner just got about a step away from the west track; did not get on it; he was struck on the right side by the beam of the engine; it projects beyond the track about one-and-a-half feet.”
    One of the defendant’s witnesses, who was on the engine which killed the deceased, testified: “ I saw a man come around from behind the caboose, and step right up in front ■ of the engine. When he got close to the rail he saw the engine. He threw up one arm and his body back. The beam of the engine struck him under the right side of the shoulder. I could see Werner — the top of his head — just before we got to the crossing. He had his head somewhat bent; he was then in motion, moving in a westerly direction to cross the track; he had a hat or cap on.”
    Another witness, who was on the engine, testified: “As we approached Erie avenue I saw a man run from the corner or end of the caboose trying to cross the track we were on; he held his head down, and had some kind of a cap on, and appeared to be muffled up. As he came to the rail of our track he looked towards the engine and threw himself back, but not far enough to avoid the engine.”
    It was in evidence that the engine was running at the rate of of above twenty miles' an hour. The witnesses who were on the engine testified that the bell was rung. It was not controverted that the whistle was blown. The distance between the east and west tracks was about seven feet. The coal cars overhang the track about eighteen inches. The morning was murky and it was raining.
    The defendant submitted the following points :
    1. That it was the duty of the deceased, before attempting to cross the defendants’ tracks, to stop, look and listen for approaching trains, and the plaintiffs’ evidence showing that he failed to take these precautions, his failure was not merely evidence of negligence, but was negligence in itself, and the plaintiffs cannot, therefore, recover.

      2. The duty of stopping was the more imperative as the view of the tracks upward was obstructed by a coal train of several hundred feet in length, and the deceased, in passing the rear of the coal train, where he could only see in one direction, and continuing in his course without any attempt at examination, was guilty of negligence, and the plaintiffs are therefore not entitled to recover.
    3. The evidence of the plaintiffs establishing the fact that the deceased was warned not to cross the tracks, as an engine was then coming, the deceased was guilty of negligence in not heeding the warning, and the plaintiffs cannot, therefore, recover.
    4. The uncontradicted evidence, showing that a whistle was blown before the engine reached the crossing at Erie avenue, the deceased was also guilty of negligence in not regarding that warning, and therefore the plaintiffs cannot recover.
    5. If the deceased was deaf, and in consequence of such infirmity failed to hear the warning given to him to stop, he had greater reason for caution in advancing over the tracks, and therefore his failure to stop and look was negligence per se, and the plaintiffs cannot recover.
    In the general charge the court, Mitchell, J., inter alia, said:
    “ It is alleged on the part of the defendants that the duty to stop, to look and to listen was not performed by the deceased, and that in addition to that he had not only the chance to have performed his duty in that respect, but that a distinct warning was given to him. You will recollect the testimony of the first witness called, who was the brakeman on the coal train; he called to him to look Out. Now, whether Werner heard that we have ho means of knowing. Whether he did not hear it, or whether hearing it, he was under the impression that he would get across, and committed an error of judgment in coming forward, or whether having got into a difficult position — having got between the two tracks-r-he then was put in a position of having to choose between two evils, and went forward as the least evil of the two, we are not able to say from any positive testimony. In the latter case, of course, that is an exception to the general rule which I have given you. [If a man has got himself, without negligence, into a position of danger, he is not responsible if he makes a mistake of judgment in getting out. A man put under that pressure, if he uses his judgment honestly, is not responsible, although he might have done better if he had done the other way.]
    “ The space between the tracks was seven feet, and the overhang, as testified by the parties, was probably not exceeding three feet. There was, therefore, a space of four feet in the centre between those tracks, where a man might stand and be entirely safe from passing trains; but if you have ever had any experience of standing near a train of cars or a locomotive coming at the rate of twenty-three miles or twenty-four miles ’an hour, you must remember that it takes a man of pretty steady nerve to stand within a few inches of a locomotive, and the slightest mistake, a mistake of either involuntary starting of the nerves, or of judgment in the distance, may subject a man to the risk of being struck. [Therefore it may be that Mr. Werner, having got out from behind this coal train, found himself between the tracks, in a position of danger, and went forward as the least dangerous alternative that he had presented to him. Iiis action under such circumstances would, of course, not be negligence on his part, but if he got himself into a position of danger by negligence in the first place, he would not be excused by any subsequent danger.] * * * If, therefore, you are satisfied under the testimony that the deceased did not perform his full legal duty of stopping, looking and listening before he crossed, but if you think that, as described by one of the witnesses for the defence, the moment this caboose car of the coal train got beyond the crossing, he darted across without looking up or down the road, that was negligence on his part, and however unfortunate the result, the railroad company cannot be made to pay for it. * * * I have substantially affirmed all the defendants’ points, if the jury find the facts as assumed. [I decline to affirm any of them as matters of law.”]
    The verdict was for plaintiffs for $7000. The defendant assigned for error the refusal to affirm the foregoing points as matter of law, and the portions of the above charge in brackets.

      Chapman Biddle, for plaintiff in error.
    The legal obligation resting upon persons intending to cross the tracks of railroads at highway intersections maybe considered as settled in Pennsylvania by numerous and uniform decisions. As thus determined the duty is imperative to stop, look and listen: North Pennsylvania Railroad v. Heileman, 13 Wright 60; Railroad v. Coyle, 5 P. F. Smith 396 ; Pittsburgh, Fort Wayne & Chicago Railway v. Dunn, 6 P. F. Smith 280 ; Railroad v. Beale, 23 Id. 509; Railroads. Weber, 26 Id. 157 ; Gerety v. Philadelphia, Wilmington and Baltimore Railroad, 31 Id. 274; Central Railroad of New Jersey v. Feller, 3 Norris 226; Schultz v. Railroad, 6 W. N. C. 69; Nagle v. The Allegheny Valley Railroad Co., 7 Norris 35. The fact that the view of the west track was obstructed by the passing coal train made the duty of stopping the more imperative: Railroad Co. v. Beale, 23 P. F. Smith 509. If Werner’s hearing was in any way impaired' he had a greater reason for caution in advancing: Central Railroad of New Jersey v. Feller, 3 Norris 229.

      S. W. Reeves and J. Howard G-endell, for defendant in error.—
    Werner certainly had “stopped,” and in the absence of all evidence on the subject, we must assume that he “looked and listened,” for it seems to be well settled that the love of life and the instinct of its preservation are quite sufficient to stand for proof that the deceased took the proper care, until the contrary appears : Railroad v. Rowan, 16 P. F. Smith 399; Railroad v. Hagan, 1.1 Wright 244; Railroad v. Hall, 11 P. F. Smith 361; Allen v. Willard, 7 Id. 374; and that therefore it is not necessary to prove affirmatively that a person injured when crossing a railroad on a public highway had stopped and looked: Pennsylvania Railroad v. Weber, 22 P. F. Smith 27; Weiss v. Pennsylvania Railroad, 29 Id. 387 ; Pennsylvania Railroad v. Weiss, 6 Norris 447. Even, although from the uncontradicted evidence it might be inferred that if the traveller had stopped and looked and listened he would have seen the approaching train, it is for the jury to determine the fact: Pennsylvania Railroad v. Weber, 26 P. F. Smith 157; Pennsylvania Railroad y. Weiss, 6 Norris 447. Negligence, as already stated, is the absence of the care which persons of ordinary prudence would exercise under the same circumstances, and we submit that precedent, as well as common sense, teaches us that where a company by its own wrong places a person in a position of danger, he is not negligent if he fails to exercise the coolness and self-possession of a bystander: Johnson v. Railroad, 20 P. F. Smith 357; Delaware, Lackawanna and Western Railroad Co v. Smith, 28 Leg. Int. 101; Warner v. Railroad Co., 6 Phila. R. 537.
   Mr. Justice Sterrett

delivered the opinion of the court, March 3d 1879.

This is a close case, lying fast by the dividing line between questions of law and of fact. Testimony, tending to prove that the deceased, August Werner, lost his life by the negligence and improper conduct of the employees of the railroad company, was introduced, and, without objection, submitted to the jury, who, by their verdict, have settled that question in favor of the plaintiffs below. It must therefore be assumed as a fact that the company was guilty of negligence. In the court below the defence was rested mainly on the ground of concurring negligence on the part of the deceased; and, as to that, the contention now is that under the testimony it was a question of law for the court, and not one of fact for the jury. It was not raised, as is sometimes done, on a motion for a nonsuit, grounded solely on the plaintiffs’ testimony, but by a request for binding instructions after the testimony on both sides was closed. The five points submitted by the learned counsel for the company are each based on the assumption that acts of the deceased, constituting contributory negligence, were established beyond reasonable doubt, and the court was asked to say, as matter of law, that the plaintiffs could not recover.

The learned judge who presided at the trial, after fairly presenting the questions of fact raised by the testimony, submitted them .to the jury in a very clear and able charge, in which he affirmed the defendants’ points, provided the jury found “the facts as therein assumed,” but declined to affirm them as matters of law. In the course of his charge, after calling the attention of the jury to the testimony and stating in the most pointed and emphatic terms the duty of the deceased, he proceeded to say, “ If, therefore, you are satisfied under the testimony, that the deceased did not perform his full legal duty of stopping, looking and listening before he crossed; but, if you think, as described by one of the witnesses for the defence, the moment the caboose car of the coal train got beyond his crossing, he darted across without looking up or down the road, that was negligence on his part, and however unfortunate the result the railroad company cannot be made to pay for it.”

There can be no question as to the fairness of the charge, and its correctness also, unless it be in the refusal to rule the case as a question of law and thus take it from the jury.

When the facts are admitted, or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the court to declare the law applicable to them; but, when material facts are disputed, or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are. The line of demarcation, in this respect, between the duty of the court and that of the jury should be carefully guarded. While, on the one hand, the court should not permit the jury to disregard or evade its instructions as to matters of law, it should be equally careful not to invade the province of the jury and take upon itself the determination of facts about which there is 'any dispute.

The first and fifth points of the defendant, above referred to, assume that Werner neglected to take the necessary precautions “to stop, look and listen for approaching trains,” before attempting to cross the track; and therefore the plaintiffs could not recover. This was asking the court to do more than the evidence warranted. The undisputed testimony was that he did stop, when he came to the railroad; indeed, he was compelled to do so by the passing coal train. When first seen by the brakeman, who was on the caboose attached to the train, he was standing in the centre of Erie avenue, a few feet from the eastern side of the track, and there he remained until the coal train passed by. To conclude that he did not listen while standing there, would require a strained and unnatural inference. The presumption would rather be that he did listen as well as look. The love of life and the instinct of self-preservation are too strong to justify the inference that he was heedless all the while, and failed to exercise ordinary care. The common-law presumption is that every one does his duty until the contrary is proved, and none of the witnesses undertake to say that he did not both look and listen while waiting for the coal train to pass. It is undoubtedly true that when the plaintiff’s own evidence discloses contributory negligence, there can be no recovery; but, if it does not, the burthen is on the defendant to disprove care, and, in such case, the question of negligence is for the jury: Pennsylvania Railroad Co. v. Weber, 26 P. F. Smith 157. The vice of these points was that they assumed more than was clearly proved.

In the second point it is asserted that “ in passing the rear of the coal train where he could only see in one direction,” he continued “in his course without any attempt at examination.” ■ In view of all the circumstances as they are presented in the testimony, it could not be safely assumed as an undisputed fact that the deceased did not endeavor to see that the way was clear. The witness already referred to, after describing the situation and Werner’s movements, says: “I would have done the same thing.” Another brakeman, who narrowly escaped being run over by the locomotive, says: “ Werner was looking on the other side when I first saw him, after he passed the caboose. I can’t tell what way-he was looking, when he was crossing. He just looked across and started. He must have looked up the track, for he started or drew back, but did not get away quick enough.”

The third point takes it for granted, not only “ that the deceased was warned not to cross the tracks, as an engine was then coming,” but that he heard the warning and heeded it not. There is nothing in the testimony that would have justified the court in assuming these as uncontroverted facts. One of the witnesses testified that he hallooed, “Look out!” This was done, as the witness says, to warn him of the approaching locomotive; but it would be difficult to say, from the testimony, whether he heard the warning or not, or if he did what he supposed it meant. Possibly, if Werner had survived, he would say that he heard the warning, and thought it had reference to the coal train, and that he was thus induced to hasten across the track so as to escape danger. This would be a more reasonable inference than that he heard the warning that a locomotive was coming, disregarded it and pressed on to his own destruction.

The fourth point assumes that the undisputed evidence was that a whistle was blown before the engine reached the Erie avenue crossing; that Werner heard it, but did not regard it. This also would have been an unwarranted assumption of fact on the part of the court. It may well be that the testimony would justify such an inference, but it could not be regarded by the court as an undisputed fact.

The question is not whether the testimony did not point strongly to the conclusion that the deceased was chargeable with contributory negligence in one or more of the particulars stated in the points, but whether there was such conclusive evidence of the facts as would warrant the court in regarding them as clearly established, and declaring, as matter of law, that the deceased was guilty of contributory negligence, and therefore his widow and children could not recover. We are not prepared to say that there were such undisputed facts.

Viewing the question in the light of all the circumstances as they were disclosed by the testimony, it is by no means clear that there was error in refusing an unqualified affirmance of defendant’s points. On the contrary, we think that if they had been so affirmed, the learned judge would have invaded the province of the jury and taken upon.himself the determination of facts which properly belonged to them. The testimony revealed, as far as was possible, the position and movements of the deceased and the circumstances by which he was surrounded at the time he met his death; and it was for them to find the facts, draw such inferences as were warranted, and, under the direction of the court as to the law, say whether he was chargeable with negligence which contributed to the accident. If the verdict was contrary to the evidence, the only relief was in granting a new trial. This was refused and is not the subject of review here.

Considering the charge as a whole, we think there is no just ground of objection to the portions covered by the first and second assignments of error. When read in their connection with and relation to other parts of the charge they are free from error.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Wright’s Appeal.
    1. A testator held notes of his son, which were dated prior to the date of his will. In his will he stated a certain sum as due to him from said son, and then declared, “ should I make any further advances I will charge the same in my account-book as heretofore.” No further charge could be found after testator’s death. In the will testator also spoke of this sum due from the son as “ loaned” to him. Held, that notwithstanding the use of the word “ loaned,” the notes were to be considered as part of an advancement, and not as a separate debt; that the words “ advanced” and “ loaned” were used interch angeably.
    2. Technical rules of construction must give way to the plainly expressed intention of a testator; and when, in aid of a written instrument, its intention can be gathered from undoubted proofs, the equities of parties claiming under it are not to be overthrown by a rigid adherence to one alternative meaning of an equivocal technical word.
    3. If, after advancements, a will be made, the intention of the testator is matter of fact determinable from the will itself, and from extrinsic matters and testimony.
    February 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkby and Sterrett, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1879, No. 60.
    Appeal of George Wright from the decree of the court upon the adjudication, by Penrose, J., of the executors’ first account in the matter of the estate of Isaac K. Wright, deceased. The material facts will be found in the opinion of this court.

      W. W. Ledyard and J. O. Stillwell, for appellant.
    It was plainly the endeavor of the testator to distribute his whole estate among the beneficiaries and settle all questions as to charges, and after making several specific bequests, dividing all the remainder into seven parts, he then stated that he desired certain sums to be deducted from these respective parts. Too much stress should not be laid on the precise signification of words. Technical rules of construction must yield to the expressed intention of the testator : Reek’s Appeal, 28 P. F. Smith 432. Particular expressions standing in the way of the general intention of a testator must be cbnstrued in subordination to it, or disregarded: Musselman’s Estate, 5 Watts 9; Schott’s Estate, 28 P. F. Smith 40 ; Middleswarth’s Adm’r v. Blackmore, 24 Id. 414. It was not so much the wish of the testator to fix the character of the advances as it was to fix the amount of money which should be considered as due from his children to him. If, after advancements, a will be made, the intention of the testator respecting them is matter of fact, determinable from the will and extrinsic evidence: Watson v. Watson, 6 Watts 254. Including the notes in the inventory did not prejudice the appellant Bell’s Estate, 1 Casey 92; Hutchinson’s Appeal, 11 Wright 92.

      Joshua Pusey and George W. Thorn, for appellees.
    It is not to be assumed that the testator did not comprehend the difference between a debt and an advancement.
    In his will testator speaks of advances, and as to these no interest was charged. The notes held by him against the appellant were the evidence of a debt on which interest was charged. It is, therefore, evident that the loans and advances referred to by him in the will were for moneys that he had given strictly as advancements, whilst the debts, whether for merchandise sold to his sons or moneys loaned them, for which he had taken their written obligations, were considered by him in a different light; that is, as debts to be paid by them to his. executors.
    It is further submitted that the burden of proof to show that the - debts apparently owed. by the children, as evidenced by writing, were identical with those loans or advances mentioned in the will, laid on the parties making the allegation; and in the absence of clear proof to that effect, it must fairly be held that these debts were due the testator, in addition to the sums mentioned in the will.
   Mr. Justice Woodward

delivered the opinion of the court, March 3d 1879.

When Isaac K. Wright died on the 18th of February 1875, he held two notes of his son, George Wright, for $2554.89 and $650, respectively, dated the 8th of April 1869, and payable ten days after date. Whether the amount of these notes ought to be treated as a debt due to the. decedent’s estate or as an advancement to be adjusted under the directions of the decedent’s will, is the only question presented for inquiry and determination.

The will was executed on the 18th of October 1873, four years and a half after the notes were given. In the residuary clause, after a gift of one-seventh of the residue of Fis estate to each of his five surviving children, of one-seventh to the children of a deceased daughter, and one-seventh to the children of a deceased son, the testator proceeded to define the pecuniary relations existing between his children and grandchildren and himself. He said: “ I have loaned sundry amounts of money to my children and some of my grandchildren, as hereinafter set forth, which loans I wish to be considered as advances to them, and to be taken as money due from them to me, and in the distribution of my estate amongst them, to be deducted from his, her or their share thereof. To this time I have advanced to my daughter, Sarah Kenderdine, the sum of three thousand dollars ; * * * to my son, George Wright, four thousand dollars.” The concluding sentence of the residuary clause was in these words : Should I make any further advances to them, I will charge the same in my memorandum or account book as heretofore.” Four codicils were added to the will, the last of which bore date the 9th of November 1874, and in none of them was the charge against George changed.

Upon the notes of the appellant to the testator the receipt of interest to the 8th of October 1870 was endorsed, and another endorsement of the words “ no more interest to be charged on the within notes,’’ was made on the 2d of February 1875. The notes themselves were given in lieu of other notes previously held by the testator. The consideration for them had been in part coal sold, and in part and mainly, money lent. No “ memorandum or account book” making additional charges against his children or grandchildren was found after the testator’s death. Two of the executors in filing their account included the notes in controversy as assets of the estate. The claim was resisted by the appellant, on the ground that they were part of the advancement the will had charged against him. At the audit, he was called as a-witness by the executors. He admitted, that including the amount of the notes, he had received from his father about $5000. His testimony has not been brought up, but it was found as a fact by the adjudicating judge that, “ a large part of what he had received in excess of the sum mentioned in the will, was after his failure in business and when he was in a state of actual want. It was given to him in small sums of $5, <$10 and $20.” With none of these sums did his father charge him after the will was executed. The adjudicating judge held the charge in the will to have embraced the notes, and treated them as part of the advancement made to the appellant. A different view was adopted by the Orphans’ Court. The notes were held to be exclusive of the charge for advancements, and to be evidences of indebtedness for which the appellant was bound to account.

Beyond the terms of the will and some proof relating to two bonds held by the testator against a son-in-law and another son, there was no evidence bearing on the question in dispute, except the testimony of the appellant himself. The effect of the decree below was to ijicrease his liability to the estate, from $4000 to $7204.89. He testified that his indebtedness for everything given, advanced or lent him did not exceed $5000, and part of this was received after he failed in business, and after the will was made. Between the sum charged against him and the principal of the note, there was a margin of $795.11, and nothing outside of his own admission has been found to show how or when or whether any part of that margin had been advanced. The notes alone may well have been in the testator’s mind. It was found by the adjudication that, “ with interest added to the date of the will, they are very nearly the exact sum charged.”

It has been strongly urged on behalf of the appellees, that the testator declared that he had “loaned” certain moneys to his children and grandchildren, debts owing by them to him were not intended to be included in the amounts severally specified. But the word “ advanced” was used in immediate connection with the schedule in which the appellant’s liability to account in the distribution was declared. Besides, the notes were given mainly for moneys lent. They were in existence long before the will was executed, and the description of such moneys as “loans” or as “ advancements” was not absolutely inapt. Under all the circumstances surrounding these parties, and in the light of the precedents by which cognate questions have been settled, it must be held that it was the purpose of the testator to make the charge for advances substantially equal to the debts the appellant owed him. The word “loaned” and the word “advanced” were used interchangeably. They are to be construed in view of the facts that have been either admitted or ascertained. It has often happened that the stringent application of even a strictly technical word has worked grievously unjust results. “All mereitechnical rules of construction must give way to the plainly expressed intention of a testator Sjiaiiswoqd, j., in Reck’s Appeal, 28 P. F. Smith 432. And when, in aid of a written instrument, its intention can be gathered from undoubted proofs, the equities of parties claiming under it are not to be overthrown by a rigid adherence to one alternative meaning of an equivocal technical word. If, after advancements, a will be made, the intention of the testator is matter of fact determinable from the will itself, and. from extrinsic matters or testimony to show whether money or goods were intended as advancements or to be paid for: Huston, J., in Watson v. Watson, 6 Watts 254. In the absence of direct evidence accompanying a gift, the question of advancement must be determined from a consideration of the surrounding facts: Knabb’s Estate, 30 Leg. Int. 361. Yundt’s Appeal, 1 Harris 575, which was relied on by the counsel for the appellees at the argument, belongs to a large class of cases, which have settled the rule that a debt due by a son-in-law cannot be converted by proof of a testator’s'subsequent parol declarations into an advancement to his daughter. The facts developed before him fully justified the decision of the adjudicating judge. It is certain that any charge against the accountant beyond $5000 would be excessive and undue. The amount of money he received after tho execution of the will has not been shown. But he received some amount, and while it cannot be said positively that any charge beyond $4000 would be unjust, it may be said positively that such a charge would be unsafe.

There was nothing in the receipt given by the appellant to the executors for $4204.89 (including the amount of the notes and the $1000 paid him), on account of his share under the will, and nothing in the surrender of the notes to stand in the way of the present assertion of his rights. He did not admit the liability alleged against him. Neither the executors nor the other distributees have been prejudiced. And Ms creditors have acquired rights under their attachments which no voluntary act on his part could be permitted to destroy.

Deereee reversed and record remitted. And it is now adjudged and decreed that in the re-distribution of the estate of Isaac K. Wright, deceased, the charge against George Wright, the appellant, for advancements, be limited to $4000; that the distributive share of the said George Wright be held subject to the claims of his ' attaching creditors; and that the costs of this appeal be paid out of the funds of the estate.


author: Mr. Justice Gordon

text:
    Philadelphia and Reading Railroad Co. versus Ervin.
    1. Where negligence was alleged to have arisen in the course of or connected with the business of a company, it was error to reject evidence of the nature and character of its business.
    2. Where it was alleged that the negligence consisted in the company not providing cap-logs for their pier, it was error to overrule an offer to show that placing cap-logs thereon would interfere with the loading of vessels in the course of the business of the company.
    3. A municipality cannot by ordinance create a .civil duty enforceable at common law; that power reposes in the legislature. A non-compliance, therefore, with an ordinance imposing a duty whereby an injury results, does not render a defendant civilly liable to the party injured as for negligence.
    - 4. Where an ordinance was specially declared upon and although the count wherein it was set forth was the subject of demurrer, the defendant permits the case to go to trial without demurrer, or any other traverse than that involved in the general issue, the ordinance may be admitted in evidence.
    February 5th 1879.
    Before Sharswood, C. J., Mercur, Gordon; Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas, • No. 1, of Philadelphia county: Of January Term 1878; No. 250.
    Case by James Ervin against the Philadelphia' and Reading Railroad Company.
    The narr. contained three counts. The first alleged that .the defendant had two wharves upon the Delaware river, and had made a passage-way along the river edge between said wharves, and that it had erected on said wharves a cap-log; that the plaintiff was a porter, having a'horse.and cart, which, at the time of alleged grievance, was being used by Min upon said wharves ; that defendant wrongfully removed sniff cap-log'without notifying the plaintiff, and that plaintiff and Ms servants being wholly ignorant ofsueh removal, the horse and cart fell into the river and were lost.
    The second count alleged that it was the duty of. the defendant, under an ordinance of councils, to place upon every side of said wharves and passage-way a cap-log eight inches high ; but that defendant wilfully refused and neglected to do so, by reason whereof the said plaintiff and his servants, being wholly ignorant of such neglect, said horse and cart fell into the river and were lost.
    The third count alleged that defendant refused and neglected to keep said wharves and passage-way in good and safe order and condition, by reason Avhereof, &c.
    The defendant pleaded “Not Guilty.”
    At the trial before Pierce, J., it appeared that plaintiff, who Avas the driver of a coal cart, in the course of his business, which consisted to a large extent of selling coal of the defendant, drove his cart upon the pier of defendant, which was not provided with a cap-log, and that from some unexplained cause the horse began to back, and notwithstanding the exertions of plaintiff, backed over the pier and was drowned.
    Several Avitnesses on behalf of plaintiff Avere asked the folloAving questions : “ From your knowledge of the locality can you say Avhether or not it was a dangerous one to persons Avith horses and carts engaged in hauling coal, and if so, for Avhat cause ?” The Avitnesses answered that it was, and the admission of this evidence constituted the first assignment of error.
    The second assignment Avas the admission in evidence of an ordinance of councils of the city of Philadelphia of April 16th 1857, which made the following provisions : “ That it shall be the duty of every OAvner, or agent of such owner of any wharf upon the river DelaAvare or the river Schuylkill, within the city of Philadelphia, to place, or cause to be placed, on every side of such wharf Avhich shall be next the river or dock, a cap-log, Avhich shall be at least eight inches in height from the level of such Avharf, and scalloped or pierced on the loAver side thereof so as to allow the water to run off from the wharf.
    “ That if any owner or agent shall refuse or neglect to place such log as aforesaid * * * after notice to such owner or agent, he or they shall forfeit or pay the sum of $50, to be recovered as debts of like amount are by laAv recoverable. ’ ’
    The third assignment was the refusal of the court to allow the defendants to prove the nature of the business carried on upon the pier, and that placing cap-logs thereon would materially interfere with the loading of vessels.
    In the general charge the court, inter alia, said, “ It is a question for you, under all the circumstances, whether the plaintiff in any manner contributed by his own negligence to this accident. [It is for you also to consider, if the place where he took the horse was dangerous, whether it was negligence to take it there.]”
    The portion of this charge in brackets was the fifth assignment.
    The court reserved the following points:

      1. Whether or not the ordinance of April 16th 1857, in regard to cap-logs, was intended to apply to public" wharves only, and whether or not it has reference to private wharves upon enclosed property, such as the Reading coal wharves at Richmond.
    2. Whether the city of Philadelphia had any authority to apply or enforce such an ordinance with reference to the private wharf property of the defendant.
    3. Whether the defendant, as the owner of the coal wharves, was bound to provide the heads of the docks adjoining its wharves with cap-logs, and whether its omission so to do was negligence or evidence of negligence.
    The verdict was for the plaintiff for $300, and the court after-wards i entered judgment on the verdict, when defendant took this writ, among its assignments of error being those above noted, and the refusal of the court to enter judgment for defendant non obstante veredicto on the above reserved points.

      Thomas Hart, Jr., for plaintiff in error.
    The ordinance should not have been admitted. An action for damages will not lie against a person for the neglect of a statutory duty merely because it is shown that damages have arisen from its non-performance: Atkinson v. New Castle Waterworks Co., 2 Law Rep. Exch. Div. 441; . Couch v. Steel, 3 E. & B. 402; Stevens v. Jeacocke, 11 A. & E. (N. S.) 731; General Steam Nav. Co. v. Morrison, 13 O..B. 581; Kirby v. Boylston Market Association, 14 Gray 249; Flynn v. Canton Co., 40 Md. 312; Vandyke v. Cincinnati, 1 Disney 532; Chambers v. Ohio Life and Trust Co., 1 Id. 327. There is no power to annex civil liability to the violation of an ordinance: Heeney v. Sprague, 11 R. 1.456 ; Phillips v. Allen, 5 Wright 481; Butler’s Appeal, 23 P. F. Smith 448. The defendant should have been permitted to show the nature of the business for which the pier was used, for it was not bound to put it in a condition which would unfit it for that purpose.

      Henry Reed and William W. Wiltbank, for defendant in error.
    . — Of the three counts of the declaration only one is upon'the ordinance ; the action is for negligence at common law and the remedy under the ordinance is but cumulative. The plaintiff claimed not the penalty given by the ordinance, but his damages suffered. Where a statute gives a right not theretofore existing (as was the case in all the authorities cited by plaintiff in error), the remedy given by the statute is exclusive : but where a statute commands or prohibits that which the common law had already commanded or prohibited, the statutory remedy is an additional one: Wheaton v. Hibbard, 20 Johns. 292; Lane v. Salter, 51 N Y. (6 Sick.) 7; Richardson v. McDougall, 11 Wend. 47; Porter v. Mount, 41 Barb. 564; Dygert v. Schenck, 23 Wend. 451. See Washington Road v.
      State, 19 Md. 287; Litchfield v. Simpson, 8 Q. B. 74; Collinson v. Newcastle Railway Co., 1 C. & K. 546.
    The defendant was guilty of negligence in not hawing cap-logs on its wharf: Brown v. Lynn, 7 Casey 510 ; Swords v. Edgar, 59 N. Y. 31; Holmes v. N. E. Railway Co., Law Rep. 4 Exch. 257 ; White v. France, Law Rep. 2 O. P. Div. 310; Tobin v. Portland Railroad Co., 59 Me. 183; Freer v. Cameron, 4 Rich. 229 ; Wendell v. Baxter, 12 Gray 496; Carleton v. Franconia Co., 99 Mass. 216.
    It is not always necessary for the witness to be an expert to enable him to give his opinion as to a matter depending upon his special practical knowledge if he states the facts upon which he bases his opinion : Beatty v. Gilmore, 4 Harris 466 ; Dunham’s Appeal, 27 Conn. 192.
   Mr. Justice Gordon

delivered the opinion of the court, March 10th 1879.

In the determination of this case it is of no kind of consequence whether the wharf of the defendant below was a public or private one, since the plaintiff was there not as a trespasser nor by mere license, but upon not only his own business but also that of the company. It was engaged in the transportation and sale of coal, and he .was engaged in delivering it to the company’s customers, so that whilst he was not employed directly by the defendant, yet, it profited by his employment. The company then in this manner inviting and making it necessary for carters to come upon its premises, was bound to provide ways for horses and vehicles which were' reasonably safe. It was, however, not bound to do more than this: if such ways were reasonably safe; if an ordinarily prudent man could drive along them without danger, the obligation of the defendant was fully discharged; it was not liable for extraordinary accidents, neither was it liable for results arising frcha a want of judgment or prudence on part of the plaintiff. Was the place where the plaintiff’s carts stood unsafe? Then the question at once arises, why did he stand them there? . He, himself, says he stopped where he did, in order to ascertain whether the coal he wanted was or was not on pier No. 11. For a purpose of this kind, it is clear if there was a safer place in the yard he might have taken it; nay, for that matter, he need not have entered the yard at all until he had discovered just where his coal was. If there was a safer place, which was reasonably convenient where he might have stationed his horses and carts, he ought to have selected such place; for he cannot call upon the company to protect him from accidents, from which he might have protected himself by a proper exercise of his own judgment. He knew the ■wharves were unprotected by cap-logs; he knew the nature of horses, certainly the nature of his own horses, quite as well or better than the company, and if, under such circumstances, he w?s not bound to select a place safe beyond peradventure for his own property neither was the company bound to cap their wharves in anticipation of the mulishness of his horses or of his own .want of judgment.

Substantially, the charge of the learned judge of the Common Pleas, on this part of the case, was correct. But as the determination of this question of negligence must depend largely upon circumstances, we think the evidence, offered to prove the nature and character of the company’s business, ought to have been received. If cap-logs would have been an obstruction to that business, it would show, at least, that they had not been omitted from mere carelessness or from a niggardly spirit of economy, and so the defendant would have a better standing with the jury on the question of damages. On the other hand, it was proper to prove, by persons acquainted with the place, that it was dangerous; for if it was obviously dangerous, an inference of the company’s knowledge, of that fact must be presumed.

We turn now to the second specification of error, and we are induced to consider it more because of our desire to relieve the case from doubt upon the re-trial than because of any error in the ruling. That assignment embraces the defendant’s objection to the introduction in evidence of the city ordinance requiring the owners of wharves, on the Schuylkill and Delaware rivers, to put and maintain cap-logs upon them of a height not less than eight inches. The plaintiff, in one of the counts of his narr., declared upon the ordinance as raising a duty which the defendant was bound to observe, and laid the damages, resulting from the loss of his horse and cart, as a consequence of the neglect of such duty. This count could not have stood the test of a demurrer; or had the court been asked to charge that upon this count the plaintiff could not recover, and also that upon the remaining counts the ordinance could not be regarded as evidence, it would have been bound so to charge.

For, let us suppose that these wharves were so constructed that, extra the ordinance, no charge of negligence could arise, and hence no common-law action would lie; would disobedience to this regulation, of itself, subject the company to such charge and action ? This question would seem almost to answer itself; for if it be affirmed, then may civil duties and civil remedies be given or taken away by ordinances; a power as yet quite beyond the .reach of municipal legislation.

The national or state legislature may do this, for it is the supreme power, and as such can make that immoral which was before indifferent, and that neglect which was before prudence, but the city of Philadelphia has no such power. Its ordinances are but police regulations enforceable by penalties, recoverable by actions of debt or otherwise as may be prescribed, but if not so enforced they come to nothing. An ordinance may forbid the maintenance, by my neighbor, of a cesspool upon his premises, and it may, by penalty, compel him to abate it, but whether it does so or not, I may, if I am damaged thereby, have my common-law action against him, but if 1 am not damaged I am without remedy; in this the ordinance neither helps nor hinders. This matter is well stated by Spencer, J., in the case of Vandyke v. The City of Cincinnati, Disney’s Rep. 532, thus: “I conclude, then, that the ordinance imposed upon Harrison a public duty alone, which can only be enforced by the penalty prescribed, and non-performance of which does not subject him to a civil action at the suit of a person injured.” In arriving at this conclusion the learned justice uses the argument I have thought proper to adopt; that is, an ordinance cannot create a civil duty enforceable at common law. For if a city council has power so to do — if it has the power to create such obligation, it must also have the power to restrict it, in other words to prescribe the sole consequences arising therefrom, but it will, we apprehend, be conceded that a power, like the one here indicated, is wholly beyond the province of such a body.

There are indeed cases where such ordinances have been received in evidence in common-law actions for negligence, but they are generally such as enter into the case itself or enforce a common-law duty. Such are ordinances regulating the speed of railroad trains when passing through towns or cities. Here the ordinance may, and usually does, enter into the question of negligence, for the rate of speed to be anticipated has much to do with the care to be exercised by those crossing the tracks. So, on the other hand, those in charge of trains are not only subject to the common-law duty of passing through towns slowly and cautiously, but they mustknow that persons depending upon the observance of the municipal regulations will not take all that care which would be required in the open country. The case in hand, however, involved no such duties. Whether the defendant should or should not have had cap-logs upon its wharves was a matter which addressed itself to the judgment of those having its affairs in hand. The omission of these caps did not, per se, involve the company in any responsibility beyond the penalty of the ordinance. Neither could the plaintiff have placed any dependence upon the observance of such ordinance, for he knew that if it applied at all to the defendant’s wharves it had not been observed; he knew that he must depend for the preservation of his property upon his own care and skill, and, these failing, he then had his common-law remedy for compensation.

Under the pleadings, however, the ordinance was properly admitted, for the plaintiff having declared upon it, and the defendant having permitted the case to go to trial without demurrer or any other traverse than that involved in the plea of not guilty, he, the plaintiff, had a right to introduce this evidence in order to have the judgment of the court thereon. It follows that this case can be reversed onlv for the error, already adverted to, which was committed in overruling the defendant’s offer of evidence as embraced in the third specification.

Judgment reversed^ and a new venire ordered.


text:
    Asay versus Hay.
    ]. Where .the defence had closed, and the plaintiff called a witness to prove the admission of the indebtedness by defendant it was error to refuse permission to defendant to explain such admission.
    2. Had it been competent for the defendant to prove in chief, what he offered in rebuttal, the court might have properly refused a re-examination of the witness, but as to matters that require explanation or where new matter is introduced by the opposing interest, a party has a right in rebuttal to reexamine his witness.
    February 6th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett,' JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of duly Term 1878, No. 16.
    Assumpsit by Alexander Hay against A. Merritt Asay, on a promissory note, drawn by defendant to the order of A. M. Stout, and by the latter endorsed to plaintiff.
    At the trial, before Elcock, J., the plaintiff gave the note in evidence, and proved the consideration for the endorsement by Stout and rested. The endorsement was proved by Dr. Thomas Hay. The defendant testified that the note in suit was one of a series of notes which he had given for the joint accommodation of plaintiff and Stout; that about August 5th 1876, defendant had given an accommodation note of the-same amount as the one in suit, to the order of plaintiff; that shortly thereafter Stout came to defendant with said note, saying that Hay had said that if Stout would get a note from defendant, drawn to Stout’s order, plaintiff would endorse it, and that Stout and he would endeavor to get it discounted in a bank, in which Hay was director; that defendant then gave the note in suit; that defendant was not indebted to plaintiff, and that Stout was indebted to defendant. In rebuttal Dr. Thomas Hay testified that defendant had admitted his liability on the note in suit after its maturity. Thereupon the defendant was recalled and offered to explain and contradict this alleged admission, but the court rejected the offer.
    The following point was submitted by defendant: “ If the jury believe that the note sued on is a renewal of a former note that was made by defendant Asay, to plaintiff’s order, for Stout’s accommodation, and without advantage to Asay, then the plaintiff cannot recover in this case.” The court affirmed the point, with the qualification that if the plaintiff paid value for the note sued on, he could recover.
    Verdict for plaintiff, and after judgment defendant took this writ and assigned for error the rejection of the foregoing offer of evidence and the answer to the above point. , ■

      JS. K. Nichols, for plaintiff in error.
    The defendant should have been permitted to explain his alleged admission of liability. This admission was new matter, and without explanation was hurtful to the defence.

      Charles F. Ziegler and W. A. Manderson, for defendant in error.
    The first time Dr. Hay was on the stand was to prove the endorsement of Stout, and for that alone. He was called the second time to prove the admission of defendant in rebuttal of the statement that he did not owe the plaintiff anything.
   Mr. Justice Trunkey

delivered the opinion of the court, Febru17th 1879.

The rulings of the learned judge, with a single exception set forth in the third assignment, are so clearly right as to need no vindication.

After the defence closed, the plaintiff called Dr. Thomas Hay, who testified to the defendant’s admissions of indebtedness on the note in suit. That this testimony was pertinent and material is conceded. The defendant offered to rebut it by his own testimony, which was denied. We have examined the bill of exceptions, and fail to find anything to justify overruling the offer. "At an earlier stage in the trial, it certainly was not competent for the defendant ■ to prove that he had not made those admissions to Dr. Hay, even if he could have anticipated what was to come; and the plaintiff, in cross-examining him, did not inquire concerning them. The matter proved by Dr. Hay was not only new when presented, but could not, in the first instance, have been adduced or drawn out by the defendant. Hence, to refuse the rebutting evidence was to allow the damaging proof of the defendant’s admissions of indebtedness to the plaintiff to go to the jury without contradiction or explanation. Had it been competent for the defendant to prove, in chief, what he offered in rebuttal, the court might have refused a re-examination of the witness. As to matters that require explanation, or as to new matter introduced by the opposing interest, a party has a right, in rebuttal, to re-examine his witnesses: Whart. Ev., §572.

Judgment reversed, and venire facias de novo awarded.