text:
    Harton’s Estate
    (No. 1).

      Beneficial associations — Death benefits — Beneficiaries—“Legal representatives.”

    Where a foreign beneficial association was chartered “for the mutual protection and relief of the members, and for the payment of stipulated sums of money to the family or heirs of the deceased members of such association,” and a certificate is issued payable to the member’s “legal representatives,” the death benefits are payable upon the member’s death to his heirs at law, although he may have by will given such benefits to certain designated relatives. In such a case it is immaterial that after the certificate was issued the law was changed so that executors, administrators or assigns of deceased members could be made beneficiaries, if it appears that the member survived the change in the law for many years, and never surrendered his original certificate, and accepted a new one containing the names of the substituted beneficiaries.
    Argued Nov. 1, 1905.
    Appeal, No. 152, Oct. T., 1905, by Bertha Hartón Orr, from decree of O. C. Allegheny Co., May T., 1905, No. 3, dismissing exceptions to adjudication in Estate of G. Bruce Hartón, deceased.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The fact are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication. .

      Charles El Orr, with him Thomas C. Lazear, for appellants.—
    The beneficiary has ordinarily no vested interest in the beneficial certificateHeasley v. Heasley, 191 Pa. 539.
    The persons now claiming to be the “ legal representatives ” of the decedent have therefore had no vested interest in the beneficial certificate, and whether they come within that designation depends upon the construction of the certificate at the time the money was paid.
    Great, stress was laid on the fact that there did not seem to have been a change of beneficiaries, as provided in the by-laws. No application was needed to change the beneficiaries, because the original certificate' naming “legal representatives,” answered the same purpose and obviated the necessity for such application: Marsh v. Supreme Council, 149 Mass. 512 (21 N. E. Repr. 1070) ; Richmond v. Johnson, 28 Minn. 447 (10 N. W. Repr. 596) ; Masonic Mut. Benefit Society v. Burkhart, 110 Ind. 189 (10 N. E. Repr. 79) ; Durian v. Central Verein, 7 Daly, 168.
    The beneficial certificate should be construed in conformity with the laws of Pennsylvania: Keatley v. Ins. Co., 187 Pa. 197; Maneely v. Knights of Birmingham, 115 Pa. 305.
    The rule in Pennsylvania seems to be that unless the words of the charter are clearly prohibitive or restrictive, the contract must be carried out as it was made: Donithen v. Independent Order of Foresters, 209 Pa. 170.
    The words “ legal representatives,” descriptive of the beneficiaries in the certificate, mean in this case executors : Day v. Life Ins. Co., 111 Pa. 507; Osborn v. First Nat. Bank, 175 Pa. 494.

      Creorge Ml Hartón, for appellees.
    The association having been incorporated under Ohio laws, and being a beneficial organization, the Ohio .statutes and the charter and by-laws must define and control the power of designation of beneficiaries: Arthars v. Baird, 8 Pa. C. C. Rep. 67; Supplee v. Knights of Birmingham of Pennsylvania, 18 W. N. C. 280 ; Northwestern Masonic. Aid Association v. Jones, 154 Pa, 99; Ballou v. Gile, 50 Wis. 614 (7 N. W. Repr. 561); Sup. Lodge Knights of Honor v. Nairn, 60 Mich. 44 (26 N. W. Repr. 826).
    The validity of designation of beneficiaries, and the interpretation of the words used, must be governed by the law of Ohio: Niblack on Benefit Societies, sec. 141; Story on Conflict of Laws, secs. 242, 243, 272; Wharton on Conflict of Laws (3d ed.), sec. 401 ; Dougherty v. Snyder, 15 S. & R. 84; 1 Bacon on Benefit Societies (3d ed.), sec. 175, 247; Scott v. Duffy, 14 Pa. 18.
    If the deceased member undertook to dispose of the fund under his will, as the executors claim, still the will does not affect the case, because, under the law, the member had no vested interest in the fund; it was no part of his estate, and he could not dispose of it by will: Arthur v. Odd Fellows Beneficial Association, 29 Ohio, 557; Masonic Aid Assn. v. Jones, 154 Pa. 99; 1 Bacon on Benefit Societies (3d ed.), sec. 237; Daniels v. Pratt, 143 Mass. 216 (10 N. E. Repr. 166); Union Mutual Association v. Montgomery, 70 Mich. 587 (38 N. W. Repr. 588) ; Beatty’s Appeal, 122 Pa. 428.
    As the association has prescribed the form for change of beneficiary, that form must be pursued; otherwise no change can take place: Masonic Mut. Assn. v. Jones, 154 Pa. 107; Yoilman’s App., 92 Pa. 50; Brown v. A. O. U. W. 208 Pa. 101.
    The member having named his legal representatives as beneficiaries, not having specified any person or persons coming within the above classes, except as by “ legal representatives,” .he meant to designate his heirs or next of kin : State v. Standard Life Association, 38 Ohio, 281 ; State v. Peoples’ Mutual Association, 42 Ohio, 579; National Mutual Aid Association v. Gonser, 43 Ohio, 1 (1 N. E. Repr. 11) ; Supreme Council v. McGinness, 59 Ohio, 531 (53 N. E. Repr. 54) ; State v. Moore, 38 Ohio, 7; Sarjent v. Knights of Honor, 158 Mass. 557 (33 N. E. Repr. 650).
    But in order to preserve the contract, the words “ legal representatives,” have been held to be broad enough to include heirs or next of kin, which construction should hold here: Bishop v. Grand Lodge, 112 N. Y. 627 (20 N. E. Repr. 562); Ins. Co. v. Armstrong, 117 U. S. 591 (6 Sup. Ct. Repr. 877); Duncan v. Walker, 1 Yeates, 213; Gutridge v. Vanatta, 27 Ohio, 366; Masonic Aid Assn. v. Jones, 154 Pa. 99 ; Masonic Mut. Assn. v. Jones, 154 Pa. 107; Comly’s Estate, 136 Pa. 153; Osborn v. First National Bank, 175 Pa. 494; Rankin’s Estate, 13 Pa. C. C. Rep. 617; Ralston v. Wain, 44 Pa. 279.
    January 2, 1906 :
   Opinion by

Mr. Justice Stewart,

G. Bruce Hartón, a resident of Allegheny county, in this state, was the holder of a beneficial certificate issued by the Knights Templar and Masonic Mutual Aid Society in the sum of $5,000, payable to his legal representatives. He died February 20, 1904, unmarried and without issue. By his will he gave the residue of his estate, “ together with moneys due from life insurance,” share and share alike, to his sister, Mrs. William M. Orr, and his niece, Margaret Fertig.

A controversy having arisen with respect to the fund between these residuary legatees and the heirs at law, it was agreed that the fund should be paid over to the executor of the will, and the rights of the parties with respect thereto should be determined on the audit of the executor’s account. It resulted in an award of the fund to the heirs at law, and the residuary legatees have taken this appeal from the decree.

The relation between Hartón and the association was contractual, and the contract is to be interpreted in the light of conditions existing when it was entered into. The association was a beneficial society organized under the laws of the state of Ohio. The act authorizing associations of this character, expressly indicates the purpose and objects of the same, and to this extent places a limitation upon their powers and privileges. The purpose and objects, as expressed by the act, are “ for the mutual protection and relief of the members, and for the payment of stipulated sums of money to the family or heirs of the deceased members of such association.” The contract with Hartón was to pay “ his legal representatives ” the sum of $5,000. If we are to accept this designanation of beneficiaries as meaning what the words used in their primary sense imply, executors or administrators, it would result that the association had contracted to do something outside of its powers. Such construction is always to be avoided, where there is a secondary sense which would make the contract conform to law. The law does not presume that parties to a contract intended by it the accomplishment of an illegal object, but, on the contrary, every presumption is allowed in favor of a legal purpose; and so it is that when words are susceptible of two different senses, they are to be understood as to have a legal and actual operation, not by way of concession or correction, but as the true interpretation of the governing purpose of the parties. The rule thus stated is one of many used to discover the intention of the parties, which is always allowed to govern when ascertained. The rule imposes no intention, but seeks to discover the true one.

The words “ legal representatives ” have a secondary sense, well recognized, which harmonizes entirely with the purposes and objects of the association. The instances are not few in which they have been held to mean heirs at law. “ The terms ‘ legal representatives,’ ‘ personal representatives,’ etc., are often used in statutes and instruments of writing in a broader sense, so as to include all persons who stand in place or represent the interests of another, either by his act or operation of law: ” 18 Am. & Eng. Ency. of Law (2d ed.), page 814. “ The word ‘ representative ’ may mean the next of kin of decedent or executors or administrators, according as the intention of the decedent is manifest in the will: ” Appeal of Trustees of the University of Pennsylvania, 97 Pa. 187.

The application of this rule then gives us not a possible or probable understanding of the parties to the contract, but an understanding which, for all judicial purposes, is to be regarded as definitely ascertained. As thus interpreted this contract when made provided for the payment of a stipulated sum to the heirs of Gr. Bruce Hartón. Did it so continue until his death in 1904?

In 1891 the objects and purposes of these beneficial associations were extended, by a supplement to the original act, so that thereafter executors, administrators or assigns of déceased members could be made beneficiaries. In certificates thereafter issued, in which the stipulated sum was payable to legal representatives, these words would necessarily be given their primary sense, and be understood as meaning executors or administrators. Hartón survived this change in the law some thirteen years. During all this time he had the right under the rulés of the association to appoint other beneficiaries, in the prescribed mode, by surrendering his original certificate and accepting a new one with the names of the substituted beneficiaries therein, but he did not exercise this right. His certificate remained at his death as it was when originally issued, payable in terms to his legal representatives.

It is argued on behalf of appellants, that surrender and substitution in this case were not required, since by the change of the law it was competent for the association to contract for the payment of the stipulated sum to executors and administrators, and that the amended law was so impressed on this earlier contract as to impose on the words “ legal representatives ” their primary meaning; that Hartón is presumed to have known of the change, and his retention of the original certificate, under tírese circumstances, requires that the contract be interpreted as of the time of his death.

We fail to see the force of this argument. The earlier contracts of this association stand clear of the amended law of 1891. The amendment was not curative in any sense. If this particular contract was invalid before, it was none the less so after the amendment. But it was not invalid, as we have seen; it was a valid and subsisting contract that required payment of the stipulated sum to the heirs at law. Had Hartón died prior to the adoption of the amendment, it is not open to question that his heirs could have successfully asserted their right to the money. The amendment did not interfere with their right; nothing could defeat it but an unequivocal act on the part of Hartón, in conformity with the rules of the association, appointing other beneficiaries. His attempt at a testamentary disposition of the fund was futile, for the reason that he had no property in it: Masonic Aid Association v. Jones, 154 Pa. 99; and for the further reason that the rules of the association provided that change of beneficiaries was to be made by surrender of certificate. Neither Harton’s attempted disposition of the fund by will, nor the fact that for thirteen years prior to his death the certificate that he held was in conformity to the letter of the amended law governing the association, and that certificates issued during that period in the same terms gave the stipulated sum to the executor or administrator, can- be considered as affecting the rights settled under the original contract. We are concerned with Harton’s desires and purpose with respect to this fund only as they find expression in the original contract, no subsequent act of his that could change or qualify them agreeably to law or the rules of the association being shown. It is familiar law, but will bear repetition here, that a contract is to be construed in reference to the time when it was made, and to contemporaneous laws and usages : 2 Story on Contracts, p. 43.

There is nothing else in the case that calls for consideration here. The conclusion reached by the court below was correct, the appeal is dismissed at the cost of appellants and the decree is affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Harton’s Estate
    (No. 2).
    Argued Not. 1, 1905.
    Appeal, No. 153, Oct. T., 1905, by Margaret Fertig, from decree of O. C. Allegheny Co., May T., 1905, No. 3, dismissing exceptions to adjudication in Estate of G. Bruce Hartón, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    January 2,1906:
   Opinion by

Mr. Justice Stewart,

The facts are the same here as in Harton’s Estate, ante, p, 499, just decided. For reasons stated in the opinion filed in that case, the appeal in, this is dismissed at the cost of the appellant, and the decree of the court below is affirmed.


author: Mr. Justice Mestbezat,

text:
    Grossbaum Ceramic Art Syndicate, Appellant, v. German Insurance Company of Freeport.

      Insurance — Contract—Oral contract — Charge—Adequacy of charge.

    In an action upon a parol contract of insurance, known as an “oral binder,” the purpose of which is to cover property from the time of the application until the policy is issued, it appeared that the evidence was contradictory as to whether such a contract existed, and the trial court in a' charge which the Supreme Court held not to be inadequate, misleading, unfair, or argumentative, submitted the case to the jury, and a verdict and judgment for the defendant was returned, which on appeal was affirmed.
    Argued Nov. 1, 1905.
    Appeals, Nos. 158 and 159, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, Nos. 936 and 937, on verdict for defendants in case of The Grossbaum Ceramic Art Syndicate v. The German Insurance Company of Freeport, Illinois, and The Grossbaum Ceramic Art Syndicate v. The Potomac Insurance Company of the District of Columbia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a parol contract of insurance. Before Brown, J.
    The facts are stated in the opinion of the Supreme Court.
    . The court charged in part as follows :
    In measuring the value of testimony in this case, and in all cases, it is important to keep in view certain leading ideas that help you to measure the force of the testimony. In some cases the testimony, perhaps all of the way through, may be truthful, or some witnesses may be mistaken, and innocently mistaken. You may fail to believe their testimony, or rather fail to give credence or weight to it on the ground that you believe they are innocently mistaken — simply mistaken. On the other hand; you may fail to give value to the testimony because you may believe it bears the impress of perjury.
    Another thought is, that the manner and appearance of witnesses upon the stand may help you, to some extent, to determine the value of the testimony. So that the testimony in a case of some witnesses may be as genuine as a standard coin; of others it may be as worthless as a counterfeit. It may measure up to par, or be absolutely worthless. Some of it may impress you as being that simply of witnesses who did not intend to testify falsely, or who perhaps were careless, or whose memory as to the facts was wrong.
    Coming then to this case, with these suggestions in measuring the testimony, the main turning point is the question whether there was a contract executed here which bound these insurance companies to pay the insurance. There is no contest as to the amount of the loss, and no contradiction of the testimony showing exactly what the loss was. There is no dispute that proofs of loss were sent. But the fact that there was a loss, and the fact that proofs of loss were sent in, does not make a contract. I cannot compel you to pay a loss, arising from fire or from any other source other than a tort, where you do a willful wrong or injury — I cannot compel you to pay the same, based on a contract, simply because I claim it. If you dispute my right, or deny that there was any contract between us, the burden is upon me to show that contract and establish it by the weight of the evidence.
    So here, when the plaintiff, the Grossbaum Ceramic Art Syndicate, comes along with claims, based upon contracts, which the company alleges were made with these insurance companies, and the insurance companies contest the point that there were contracts, the burden is upon the plaintiff to satisfy you, by the weight of the evidence, that there was a contract.
    A contract for what? A contract covering ceramic art goods located, we will say, at Atlantic City — perhaps not necessarily there, because if the testimony is to be believed, it was, substantially, that a floater policy, which it is alleged was the kind of policy contracted for here, is just what the term floater means — floating about from point to point. I may not recall exactly the cities, but, as illustrating the manner of their business, there was some testimony that in three months they exhibited at perhaps Chicago, Cleveland, Boston, New York and Pittsburg. So that a floater meant a policy that floated around with these goods, and insured them to the extent that the Understanding of the parties agreed they should be insured.

      . Now, was there a contract made? If there was no contract, no binding agreement between these parties, that is the end of the plaintiff’s case. The plaintiff must show a contract which binds the defendants. It is for you to determine whether there was a contract, and if so, what it was. It is alleged by the plaintiff that it was a floater .policy, and the meaning of that I think is quite clear from the testimony. These policies were policies to the extent of $5,000.
    There is some dispute as to whether the goods were to be in Atlantic City. Probably, within the fair atmosphere of all the testimony, the policy was intended to be — but that is for you to say — a floater policy covering Atlantic City, to run a year at the rate of three per cent, and covering any other points within the express arrangement of the parties, if there was an express, definite arrangement made.
    It takes three links to make the contract. Two out of the three will not make it. All of the links must be established. If it is clear ■ that the first link in the contract is established, that the' minds of these two agents met, and it was clearly understood to be a floater policy to the extent of $5,000, covering ceramic art goods, and then if it is clear that that meant a floater policy — vlherever the goods might be, that part of the link would be established, unless the expression, “wherever they might be,” was qualified by some other definite arrangement.
    If it was definitely understood between them that, while it was to be a floater policy, which meant floating from point to point, the insurance was not to cover every place that these goods might float, or be placed, but was only to cover, say, the best hotels, or high-class hotels and railroad depots; if that is all, even if their minds met to that extent, that is the second point in the case. If they were to cover simply those points, then there could be no recovery in this case, because stores, no matter how good they were, were not part of the arrangement. If the arrangement was generally to cover hotels, depots and good stores, and if this was a fairly good store — which perhaps cannot very well be disputed — then the policy would cover the store. If it did not cover the store, in the sense that the parties agreed, if they agreed at all, but simply covered railroad stations or depots and good hotels, then of course the plaintiff cannot recover.

      Then another step or link which would be essential, even if it is all established up to that point, is what were the terms of payment ? The rate was three per cent. That cannot be disputed, and if the testimony of Mr. Hast is to be believed, it was to cover a year. It is asserted here, as a principle of law, that because the premium was not actually paid at the time, there could be no recovery. That might, or might not, be a good proposition, but leaving that out of the case, as not for your consideration, we have a set of facts which settle that question, if you believe the testimony.
    On the question of payment, within the general scope and method in which those two agents did business with each other, there is testimony that Logue & Brother and Mr. Hast, in the interchange of business — amounting sometimes, as Mr. Hast says, to nine or ten policies a day — and in the hurry of business necessarily, and in accordance with the general custom of all the insurance agents in the city of Pittsburg, credit was extended, in the sense of running accounts — perhaps as a clearing house would run — and clear at the end of twenty or thirty days, or whatever the custom was as between Logue & Brother and Mr. Hast, to settle the balance as shown by the contra accounts. Whatever business Logue & Brother had charged against Hast would be summed up in an account. Whatever business Hast had against Logue & Brother would be summed up, and the difference between the two accounts would represent the cash balance due from one to the other, and then a settlement would be made and the cash paid. If it is true that there was this general custom, not only between these two parties, but generally among the agencies here, insurance agents, to run a line of credit and conduct the business in that way, then it is fair to imply that this transaction, being one of perhaps dozens and dozens had between the parties, went into the account in that way, and therefore it was a sufficient contract, as to that link, and bound these companies.
    Mr. Logue, of Logue & Brother, who represented these insurance companies, testifies that the contract was not closed. Of course you are to take your own recollection, and from that point of view weigh the value of the testimony, but I believe Mr. Logue’s testimony is that Mr. Hast came to see him — and there is no dispute about that. There was some talk about a floater policy and Mr. Logue said to him that he would'like to know where these goods were. Mr. Hast replied that he was not sure, but he judged they were at Atlantic City, because the telegram came from there. [Mr. Logue’s testimony is that he refused to bind himself, refused to make a contract, unless the location of the property in the floater policy was limited to railroad depots or stations and high class or first class, or best hotels. Now if that story is true, if that is exactly what he agreed to do, and to that extent he was willing to make a contract, and did make a contract, he would be bound only to that extent. If the contract did not include stores, then there was no contract as to stores, and of course these companies would not be liable, and the plaintiff could not recover.] [3]
    [Then there is a letter that is important here. Mr. Hast said, in chief, when he was on the stand, that he made an absolute contract. That is, he made a closed contract with Mr. Logue. Not a contract that was subject to any restrictions; not a contract subject to any condition which left the actual full contract open, to be settled afterwards, but that he made a full contract. Mr. Logue denies that. Is Mr. Hast supported in his allegations that at the time he alleges the contract was made, it was actually made, a completed full contract, containing all of the essential links that bound the parties. Is that true ? It is for you to judge, to some extent, as to that, from the letter which Mr. Hast subsequently wrote to Mr. Grossbaum, who is now dead, but who was the president of the plaintiff company at that time.
    Mr. Hast wrote Mr. Grossbaum on April 1, 1902, after he had had this alleged conversation with Mr. Logue “We wired you this morning in reply to your telegram as follows, ‘ $5,000 covered, subject to condition, particulars by mail,’ which we now beg to confirm.” The condition referred to is, “ that it will be absolutely necessary to incorporate the full coinsurance clause in the form in order to get the company to accept the floater business.” Now if his testimony in the first instance was, regardless of this letter, that he had actually made a full contract, complete in all its terms, clearly understood by all of the parties, and binding upon the parties, why did he write this letter ? “ The, condition referred to is, that it will be absolutely necessary to incorporate the full coinsurance clause in the form — ” absolutely necessary to do that in order to do what ? In order to get the company to accept the floater business.
    From that would you, or would you not, infer that he had not completed his contract ? If you infer that he had not completed his contract with Mr. Logue, that the terms were not all fully agreed itpon, that there was still something to be done — -if that is the true interpretation, there could be no recovery here by the plaintiff, and your verdict would be for the defendant. If the completion of the contract depended upon Mr. Grossbaum’s wiring or writing back in reply to this letter, “ That is entirely satisfactory, you may close the contract,” — ■ there never was any telegram and never was any letter back from Mr. Grossbaum, prior to the fire, stating he was satisfied to add the coinsurance clause and therefore close the contract. Not having done that, the contract, not having been closed prior to the fire, the defendant would be entitled to a verdict.
    I do not know that there is anything more to say, gentlemen, unless we have overlooked something. If there is anything counsel would like to have us call the attention of the jury to, we would be glad to do it. In a general way, and by way of repetition, it is for you to say whether there was a completed contract, completed in the sense that there was no condition attached to it. Completed in the sense that Mr. Logue and Mr. Hast mot and talked about it, and agreed that the insurance should be placed, and should be placed in the sense that it was absolutely binding and fixed, and no condition whatever attached to it, and that it covered the goods, in the floater sense, in stores. As before stated, even if the minds of the parties met upon a contract, and that contract did not cover stores, but did cover railroad depots and good hotels, these insurance companies would not have to pay. If they did not contract in their floater arrangement to cover stores, it does not matter how good the stores were, or where they were, they would not be bound to pay. If the contract was to cover merely railroad stations, goods in transit and in good hotels, then that is what the parties agreed upon and are bound by-] [i]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 8) portions of charge as above, quoting them; and (2) the charge as a whole was inadequate and misleading.

      M. W. Aeheson, Jr., of Patterson, Sterrett Aeheson, with him O. H. Rosenbaum, for appellant.

      Edwin P. Young, with him Dalzell, Scott Gordon, for appellee.
    January 2,1906:
   Opinion by

Mr. Justice Mestbezat,

These two actions are assumpsit brought by the Grossbaum Ceramic Art Syndicate against the German Insurance Company of Freeport, Illinois, and the Potomac Insurance Company of the District of Columbia, on two preliminary contracts for the insurance of certain ceramic goods which are alleged to have been the property of the plaintiff company, and destroyed by fire at Atlantic City, N. J., on April 3, 1902. The cases involve the same questions and were tried together in the court below. Verdicts were rendered for the defendant companies, and from the judgments entered thereon the plaintiff company has appealed.

There .are two assignments, and they allege error in the charge of the court, that it was partial and inadequate. The contracts sued on were verbal and what are know in insurance parlance as “oral binders. ” Their purpose is to bind or cover the property against loss by fire from the time of the application until a written policy is issued. The plaintiff company alleges that on April 1, 1902, it wired Benswanger & Hast, its brokers, at Pittsburg, to place $5,000 “ floating ” insurance on its goods then at Atlantic City, and that in pursuancé of the message its brokers, on the same day, called on Logue & Brother, the agents of the defendant companies, who accepted a risk of $3,000 for the German company and one of $2,000 for the Potomac company. The plaintiff claims that this was a “ floater ” contract and was to cover the goods wherever they might be, whether in transit, or in hotels, railroad depots or stores. It is conceded that Mr. Hast called at the office of Logue & Brother on April 1, and informed them of his firm’s instructions from the plaintiff company and that a conversation ensued as to-placing the insurance. But it is denied by the .defendants that any contract was entered into at that time, and it is claimed by them that in this conversation Mr. H. A. Logue gave Hast the terms on which they would insure the goods in hotels and railroad depots and that Hast said his company would object to the rate, but he would write that night and advise the company what it would have to do to secure the insurance.

On the trial of the cause, the learned judge said in his charge that “ the main turning point is the question whether there was a contract executed here which bound these insurance companies to pay the insurance. There is no contest as to the amount of the loss, and no contradiction of the testimony showing exactly what the loss was. There is no dispute that proofs of loss were sent. ” As stated by the plaintiff company in its printed brief, “ the sole issue in the case was raised by conflicting testimony as to whether the contracts sued on had been entered into or not. ” This necessarily sent the case to the jury. The adequacy of the charge and its fairness are the only questions raised on this appeal.

We are not convinced that the appellant has convicted the learned trial judge of reversible error on either of the grounds laid in the assignments. We do not think the appellant’s claim of inadequacy in the charge can be sustained. There was but a single question for the jury, and that was whether the insurance companies had entered into the verbal contracts sued upon. The trial judge eliminated all other questions from the consideration of the jury and told them that their verdict would depend solely upon their finding on that question. After instructing them as to the manner of testing the credibility of the witnesses and defining a floater ” policy, he presented the claims of the respective parties on the question at issue. He told the jury what the plaintiff company must show to establish its contracts. The testimony on each side was partly written and partly oral, but the judge in his charge did not refer to any part of it, except the letter written by Benswanger & Hast to Grossbaum. After thus directing the attention of the jury to the issue, the claims of the parties, and what the plaintiff was required to show to sustain its contracts, the court said: “ In a general way, and by way of repetition, it is for you to say whether there was a completed contract, completed in the sense that there was no condition attached to it, Completed in the sense that Mr. Logue and Mr. Hast met and talked about it, and agreed that the insurance should be placed, and should be placed in the sense that it was absolutely binding and fixed, and no condition whatever attached to it, and that it covered the goods, in the floater sense, in stores. ” Immediately preceding this part of his charge, the judge said: “ if there is anything counsel would like to have us call the attention of the jury to, we would be glad to do it. ” The appellant’s counsel availed himself of this opportunity and at his request the court gave further instructions to the jury.

We cannot find, under the circumstances, that the charge was inadequate. If the appellant desired fuller instructions and that the attention of the jury should be directed specifically to any part of its testimony, counsel should have responded to the learned judge’s suggestion and requested such detailed instructions as he desired. The charge was already of sufficient length to furnish adequate instructions to the jury, and if the appellant company considered it deficient or lacking in presenting any part of the testimony, the judge’s attention should have been directed to the matter, when, as he suggested, he would have given additional instructions.

Nor can the charge be condemned for unfairness or partiality. . It is true the plaintiff claimed that the contract was closed at the interview between the agents of the respective parties, and that it contained a coinsurance clause, but this was strenuously denied by the defendants. They maintained that the contract was not closed, and that their proposition to insure the plaintiff’s goods was on the condition, yet to be accepted, that the policy should contain a coinsurance clause. It was, therefore, proper, and certainly not unfair, for the judge, in calling attention to the matter to refer to the correspondence between the plaintiff and its brokers, which bore directly on the question. This is what he did, and we do not sqe that his manner in presenting it to the jury was misleading or had any tendency to give any undue weight to it against the plaintiff. There is certainly nothing in the record or verdict that leads to such a conclusion. While the jury might have interpreted this correspondence as the plaintiff does, they certainly could not be convicted of clear error in sustaining the defendants’ construction of it, that, at the close of the interview between Hast and Logue, the proposed contract needed the confirmation of the plaintiff company to complete it. Whatever may have been the necessity for speedy action in securing the insurance, as suggested by the appellant’s counsel, the telegram and letter of Benswanger & Hast to the plaintiff are strongly corroborative, if not conclusive, in support of the defendants’ position that the contract was open and “ subject to conditions ” which required the acceptance of the plaintiff to complete it. It might have been error for the learned judge to have failed to advert to this correspondence in his charge, but it was unquestionably neither error nor unfairness for him to direct the jury to consider it in determining the question whether the contract between the parties had been fully completed.

The charge is not justly open to the objection that it is argumentative in favor of the defendants. In referring to the letter written to Grossbaum, the court did not, as claimed by the appellant, ignore the testimony of Benswanger and Hast. That testimony was before the jury and was commented on by counsel, and hence whatever support it gave to the existence of the alleged contract was presumably given due weight by the jury.

It was not error for the court to charge the jury that the plaintiff could not recover unless the contract included stores, nor did the court in adverting to stores raise an issue not in the ease, as contended by appellant’s counsel. The plaintiff claimed that there was a contract and that it covered goods in stores as well as those in hotels and railroad depots. The defendants not only denied the existence of a contract, but alleged, and introduced testimony to show, that in the conversation in which it was claimed the contract had been entered into, their agent had agreed to accept the risk on goods only in railroad depots and hotels on the condition that the plaintiff would carry full coinsurance. It was, therefore, contended by the defendants that if there was a contract it covered goods only in hotels and railroad depots and not those in a store where the plaintiff’s goods were alleged to have been when they were destroyed. Hence, it was not error for the court to tell the jury that to entitle the plaintiff company to recover, it was required to show a “floating” contract which covered goods in stores.

'The assignments of error are overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Marshall Avenue.

      Road law — Grading—Advertisement—Act of April 18, 1899, P'. L. 57.
    The curative Act of April 18, 1899, P. L. 57, is constitutional, and covers a failure to advertise a grading ordinance as required by the Act of May 22, 1895, P. L. 105.
    A failure to have a viewers’ report confirmed nisi by the court is cured as to exceptants having knowledge of the filing of the report and coming into court and filing exceptions within the proper time.
    Argued Nov. 1, 1905.
    Appeal, No. 160, Oct. T., 1905, by W. G. Park, from decree of C. P. No. 2, Allegheny Co., April T., 1901, No. 857, dismissing exceptions to report of jury of view In re Grading of Marshall Avenue.
    Before Mitchell,- C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of jury of view.
    Frazer, P. J., filed the following opinion:
    Under an ordinance approved April 6,1896, and passed without petition therefor by abutting property owners, Marshall avenue was graded. The ordinance under which the work was done, owing to an oversight, was not advertised in the official newspapers of the city for ten days, as required by the Act of May 22, 1895, P. L. 105. Nor was the viewers’ report presented to the court for confirmation nisi, as required by the Act of April 18, 1899, P. L. 57. It was, however, filed in the prothonotary’s office, and by that' office confirmed nisi, pursuant to the provisions of the Act of April 2, 1908, P. L. 124, exceptants all having notice of the report being filed and confirmed nisi. To the report a number of exceptions have been filed by abutting jiroperty owners. It seems to us the only exceptions -that need to be considered are those relating to the failure to advertise the ordinance and the neglect to have the viewers’ report confirmed nisi by the court. Without the act of April 18, 1899, above referred to, these exceptions would have to be sustained. Does that act apply to this case and cure the defect caused by the failure to advertise the ordinance? The city’s contention is that it does do so, while exceptants contend (1) the act is unconstitutional, and (2) if valid does not apply to this case. The act is what is known as curative legislation, and provides that where a street has been graded, paved or otherwise improved by municipal authority, under the provisions of invalid laws or ordinances “ such improvements are made valid and binding.” The act is similar in nearly all respects to the curative act of 1891. As that act was declared to be constitutional in Donley v. City of Pittsburg, 147 Pa. 348, we have no hesitation in holding the act of 1899 to be valid. Do its provisions cover a failure to advertise an ordinance authorizing an improvement under a valid act of assembly as in this case ? The provisions of the act are quite broad, and, it seems to us, were intended to cover all cases where properties “ Have been by such improvement peculiarly and specially benefited.” The act applies in three events to cases where a municipality has incurred expense in improving streets, which has resulted in benefiting abutting property, namely, (a) where the act of assembly granting the authority has been declared unconstitutional; (5) where the act, ordinance or contract, “ is or are otherwise invalid; ” and (o) “ where for any reason private property cannot be assessed for peculiar special benefits.” The legislature might have omitted the requirements for advertising the ordinance in the official newspapers of the city, and having the power to do so, clearly had the right to legalize what it might previously have done. The act, in our opinion, is broad enough to cover the defect in this case, and remedies the failure to advertise the ordinance, and prevents the proceeding from being void. The improvement having been made in good faith by the city, at an expense of $56,752.94, it is no more than right that exceptants should assist in meeting that expense, if the respective properties were benefited thereby. Whether they were or were not benefited will be determined by a jury, as all exceptants have appeals pending.
    The exceptions relating to the failure to have the report confirmed nisi by the court cannot be sustained, as it appears no injustice was done any of the exceptants by the oversight. All had knowledge of the report being filed and came into court and excepted thereto within the proper time.
    The remaining exceptions are without merit, and need not be considered.

      Errors assigned were in dismissing exceptions to report of jury of view.

      Charles P. Lang, with him A. C. Johnston, for appellant,
    cited: Fulton Street, 8 Pa. Superior Ct. 104; Green Tree Avenue, 21 Pa. Superior Ct. 177; Pusey v, Allegheny, 98 Pa. 522.

      Stephen Cr. Porter, city solicitor, for appellee,
    cited: In re Liberty Street, 11 Pa. Dist. Rep. 488; In re Chatham Street, 16 Pa. Superior Ct. 108; Donley v. Pittsburg, 147 Pa. 348; Whitney v. City of Pittsburg, 147 Pa. 351; In re Beechwood Ave., 194 Pa. 86.
    January 2,1906:
   Per Curiam,

Judgment affirmed on the opinion of the court below.


author: Mr. Justice Fell,

text:
    Duquesne Borough v. Keeler, Appellant.

      Road law — Grading—Widening of street — Set-off.
    On the trial of an appeal from a report of viewers assessing benefits for the grading and paving of a street, the landowner cannot set off a claim for damages caused by the widening of the street, when the widening was by ordinance passed nine months after the contract for grading had been awarded, and there were separate proceedings before another set of viewers assessing the cost of the widening.

      Road law — Grading and paving — Notice—Act of May 16, 1891, sec. 10, P. L. 75.
    The failure to give the notice provided for by sec. 10, of the Act of May 16, 1891, P. L. 75, within ten days of the passage of a borough ordinance for the grading and paving of a street, is not in itself fatal to the borough’s claim for assessments for the cost of the improvement.
    Argued Nov. 1, 1905.
    Appeal, No. 161, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1900, No. 302, on verdict for plaintiff in case of Duquesne Borough v. Leonora Keeler.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Appeal from report of jury of view.
    The facts appear by the opinion of the Supreme Court.
    Defendant presented, inter alia, the following points:
    2. The plaintiff, having offered no evidence that the council authorized the signing of the contract for the grading, paving and curbing of Duquesne avenue, or that the burgess approved of the signing of the said contract by ordinance or otherwise, the plaintiff cannot recover, and the verdict should be for the defendant. Answer: Refused. [14]
    3. If the jury find from the evidence that the borough of Duquesne undertook to grade,- pave and curb Duquesne avenue in accordance with the provisions of the act of assembly passed May 16,1891, upon the petition of a majority in number and interest of the owners of property abutting thereon, and that without further petition by the property holders, the council did not grade, pave and curb Duquesne avenue as petitioned for, but did grade, pave and curb a portion thereof to a greater width than that embraced within the lines of the street at the time the same was petitioned for, without the consent of the petitioner, in that event the plaintiff cannot recover in this action, and the verdict should be for the defendant. Answer: Refused for the reason that there is no evidence that they did not. [15]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Errors assigned among others were (14, 15) above instructions, quoting them; (17) refusal of binding instructions for defendant.

      W. T. Tredway, for appellant,
    cited: Olds v. City of Erie, 79 Pa. 380; Fell v. Philadelphia, 81 Pa. 58; Pittsburg v. Walter, 69 Pa. 365; City of Erie v. Moody, 176 Pa. 478.

      Ered W. Scott, for appellee,
    cited : Beechwood Ave., 194 Pa. 92 ; Erie City v. Willis, 26 Pa. Superior Ct. 459; Hershberger v. Pittsburg, 115 Pa. 78.
    January 2, 1906 :
   Opinion by

Mr. Justice Fell,

This action was to recover benefits accruing to the defendant’s property by the grading, curbing and paving of Duquesne avenue. The defendant’s main contention at the trial was that a part of the avenue was widened after the passage of the ordinance for its grading, etc., and that the work done on the new part was without any authority, no new ordinance having been passed providing for it, "and that she was entitled to’ set off against the claim for paving and grading her damages resulting from the widening of the street. In support of this contention the defendant offered no proofs, and it was not sustained by the facts brought out by the witnesses for the plaintiff. The ordinance called for the paving of the avenue without stating its width,, and it did not appear to what width it had been paved.'' If the defendant was charged with any part of the cost of work not duly authorized, she failed to show it at the trial, and the court properly disregarded this ground of defense. ■ The widening was by ordinance passed nine months after the contract for grading had been awarded, and there were separate proceedings before another set of viewers assessing the cost thereof. It is clear that the defendant’s claim for damages because of the widening could not be considered in the proceeding before us.

Nor was the failure to give the notice provided for by section 10 of the Act of May 16, 1891, P. L. 75, within ten days of the passage of the ordinance fatal to the plaintiff’s claim. The section mentioned provides that notice of the approval of the ordinance for the improving of a street shall be given within ten days by handbills posted along the line of the proposed improvement, setting forth the fact and date of the approval, that the petition for the improvement was signed by a majority in interest and number of owners of abutting properties, and any one in interest denying that it was so signed, fhay appeal to the court of common pleas for a determination of the question whether the improvement' was petitioned for by the requisite majority. This section, it was said in O ’ Mara’s Appeal, 194 Pa. 86, is a special provision for raising, before the expense of the improvement has been incurred, the objection that a majority of the property owners had not signed the petition, and the penalty for not raising it is estoppel. If no notice, or an inadequate notice is given, the owner is not estopped, and this ground of defense is open at the trial. The failure, however, to give notice does not invalidate the ordinance and all proceedings under it. The power to contract for a street improvement is not given by this section. It regulates only the manner in which a particular question that affects the exercise of the power may be decided, and concludes parties in interest who do not raise the question in the manner prescribed. The section does not confer jurisdiction on the council, but regulates a method of procedure for the determination of a particular question. In Pittsburg v. Coursin, 74 Pa. 400, it was held that a, failure to comply with a provision of the' act of 1864, requiring notice to be given of assessments for grading or curbing streets in order that interested parties might have an opportunity to correct mistakes, did not invalidate the assessment but made it nonconclusive, and left it open for the property owner to show at the trial that mistakes had been made. In Erie City v. Willis, 26 Pa. Superior Ct. 459, section 35 of the Act of May 16, 1901, P. L. 224, was under consideration, and it was decided that the effect of a failure to give notice of the time and place of making the assessment, as provided for, was to make the assessment nonconclusive, but not to make it invalid.

The judgment is affirmed.


author: Pee Ctteiam,

text:
    Brighton Road.

      Road law — Paving—Cities of the second class — Ordinance—Estimate—Act of March 7, 1901, P. L. 20.
    Where the councils of a city of the second class passed an ordinance prior to the act of March 7, 1901, for the paving of a street, and thereafter let a contract for the improvement without an estimate furnished to the councils and without any additional ordinance, as provided by the act of March 7, 1901, and the city subsequently in various ways adopts and ratifies the contract, a landowner cannot, in proceedings to assess damages and benefits, allege that the contract is invalid.
    Argued Nov. 1, 1905.
    Appeals, Nos. 20, 21, 22, 23 and 24, Oct. T., 1905, by Conrad Dietrich et al., from order of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 433, dismissing exceptions to report of viewers In re Brighton Road.
    Before Mítchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin arid Stewart, JJ.
    Affirmed.
    Exceptions to report of viewers.
    Kennedy, P. J., filed the following opinion:
    This improvement was made under an ordinance of the city of Allegheny, approved May 24, 1900, which ordinance is as follows:
    “ That the grading, paving and curbing of the Brighton road, second, tenth, eleventh and fifteenth wards, from Washington avenue to the City Line, is hereby authorized and ordered ; and the department of public works is hereby instructed to prepare specifications therefor, and to advertise for proposals for doing said work in accordance with such specifications.
    “ When said proposals shall have been received they shall be submitted to and opened by the committee on public works, and it shall be the duty of said committee at the next meeting of councils, or as soon thereafter as practicable, to report an ordinance awarding the contract for said work to the lowest responsible bidder.”
    Nothing was done under this ordinance in regard to the letting of the contract for this improvement until July, 1901, when, on the 3d, 4th and 5th of that month, the advertisement provided for in said ordinance was inserted in the public newspapers, the bids received thereunder on the 10th of the same month and the contract let July 30, 1901, to the lowest responsible bidder, being signed by the city recorder and director of the department of public works.
    In the meantime the new charter act and amendment thereto was passed. Article 15, sec. 1, of the act of the legislature, entitled : “ An Act for the government of cities of the second class,” approved March 7,1901, and known as the “Ripper Bill,” provided, inter alia, as follows:
    “ Contracts shall be let as heretofore in each of the cities of said class as heretofore. . ■. . All contracts shall be in writing, signed and executed in the name of the city by the City Recorder and head of the proper department. No contract shall be entered into or executed directly by the councils or any committee thereof. . . . Every contract for public improvements shall be based -upon estimates of the whole cost, furnished by the proper officer, through the department having charge of the improvement, and no bid in excess of such estimate shall be accepted.”
    An amendment of this act, approved June 20,1901, provided in sec. 11 thereof, inter alia, as follows :
    “ Every contract shall be let by the city recorder and head of the proper department. ... No contract shall be let until councils have passed an ordinance providing for the letting of the same by the city recorder and head of the proper department.”
    On January 7, 1901, an ordinance was passed by councils, submitting to a vote of the electors of the city, the question of an increase of its bonded indebtedness, to pay the expense of this improvement when made, and the election thereunder resulted in favor of the issuance of said bonds, and on November 11, 1902, another ordinance was passed, authorizing the issuance of the bonds, the proceeds of which were applied to the payment of the cost of this improvement.
    Work was begun August, 1901, and completed in September, 1902, at a cost of $147,201.71; accepted by the city and paid for out of the proceeds of the bonds issued therefor, to the contractor or his assignee, the final estimate being made September 1, 1902, and payment December 3, 1902.
    On October 4, 1902, these proceedings were instituted by the city for the appointment of viewers to assess the damages and benefits, the said viewers were appointed by this court, and filed their report September 12, 1903, to which report these exceptions were filed.
    The first and third exceptions raise the same question, viz.: a failure to comply with the provisions of the act of assembly relating to the letting of contracts ; the alleged want of compliance being that no ordinance was ever passed by councils authorizing the letting of the contract for the improvement. It appears that no such ordinance was passed. Does this proceeding fail for that reason?
    At the time of the passage of the ordinance of May 24,1900, authorizing this improvement, the power of awarding the contract was by ordinance vested in the committee of public works. Subsequently, and before the contract was let, the act of March- 7, "1901, aiid amendment thereto of June 20, 1901, changed all this and required the contract to be let by the city recorder and' head of the proper department, and on July 80, 1901, the contract for doing the work of this improvement was let and signed by the city recorder and director of the department of public works, but without any other or special ordinance therefor.
    We do not think the omission fatal to this proceeding. The validity of the ordinance of May 24, 1900, was not affected by the subsequent acts of assembly. By it the improvement was authorized and the director of the department of public works was instructed- to prepare specifications and advertise for proposals, and the committee on public works to report an ordinance awarding the contract. This power was not exercised by the committee, but by the recorder and director of public works, and it seems plain that the irregularity in the letting of the contract occurred through the confusion incident to the radical change in the law of the municipality by the acts of assembly, and we think the city could waive such irregularity. It having the power to make the contract, it has also the power to adopt the contract that has been made for it by its agent, even if made irregularly, and it seems plain that the city, by its subsequent acts, has fully adopted this contract. It accepted the work. It issued a final estimate to the contractor. It issued bonds to raise money with which to pay the contractor. It paid the contractor. It instituted these proceedings to collect the cost of the improvement from the abutting property holders. These acts constitute a complete adoption of the contract, taking the place of a prior ordinance for its letting.
    It is to be observed that there is no fraud alleged on the part of the city or its officers in the letting of the contract, nor is it even attempted to be shown that the work was not done in accordance with the contract and specifications, nor that it was not well done, and this, therefore, is a matter with which it seems the property holder (exceptant) has nothing to do. The contract is not made with or for him and does not require his ratification. It is with and for the city alone, and it having approved and adopted the contract, the property holdér cannot defend against the payment of his tax, although the contract under which the work was done was void or voidable by reason of irregularity or want of authority in the agent by whom it was executed.
    Authority for the principles here stated is to be found in The Trustees of Erie Academy v. City of Erie, 31 Pa. 515; Phila. to use of O’Rourke v. Hays, 93 Pa. 72; McKnight v. City of Pittsburg, 91 Pa. 273; Philadelphia v. Gorgas, 180 Pa. 296.
    The second exception relied on is that no estimate of the cost of improvement was furnished to city council, as required by sec. 11 of the act of June 20, 1901, above quoted. The answer to this is that this improvement was authorized by ordinance of May 24, 1900, before the passage of the act of assembly, and when such estimates were not required to be furnished to city councils, and we have seen the validity of this ordinance was not affected by subsequent acts of assembly.
    All of the exceptions to the report of the board of viewers must be dismissed, and the said report confirmed absolutely.

      Errors assigned were in dismissing exceptions to report of viewers.

      O. C. Dickey, of Shiras Dickey, with him T. P. Trimble, J. M. Shields, Charles W. Eeigel, Samuel A. Ammon, F. C. Osborn and J. C. McCombs, for appellants.
    This court has uniformly held that legislative provisions relating to municipal corporations are mandatory and must be strictly followed in order to charge the private property : Western Penna. Ry. Co. v. Allegheny, 92 Pa. 100 ; Hershberger v. Pittsburg, 115 Pa. 78; Fell v. Philadelphia, 81 Pa. 58; Pittsburg v. Walter, 69 Pa. 365; Morewood Ave., 159 Pa. 39; Carpenter v. Yeadon Borough, 208 Pa. 396; Bradford v. Fox, 171 Pa. 343; Erie City v. Brady, 127 Pa. 169; Beaumont v. Wilkes-Barre, 142 Pa. 198; Reading v. O’Reilly, 169 Pa. 366; Edgar v. Pittsburg, 114 Fed. Repr. 586 ; Malone v. Philadelphia, 147 Pa. 416; McManus v. Philadelphia, 201 Pa. 619; Hepburn v. Philadelphia, 149 Pa. 335 ; Pound v. Supervisors of Chippewa County, 43 Wis. 63 ; State v. Thomas, 7 Mo. App. 205 ; Cuming v. Grand Rapids, 46 Mich. 150 (9 N. W. Repr. 141_); Hentig v. Gilmore, 33 Kansas, 234 (6 Pac. Repr. 304) ; Frosh v. Galveston, 73 Texas, 401 (11 S. W. Repr. 402).

      Stephen G. Porter, city solicitor, with bim W. W. Stoner and Oraig Smith, for appellees,
    cited: Trustees of the Erie Academy v. City of Erie, 31 Pa. 515; Phila. to use of O’Rourke v. Hays, 93 Pa. 72; Philadelphia v. Gorgas, 180 Pa. 296; Shiloh Street, 165 Pa. 386 ; Amberson Avenue, 179 Pa. 634 ; Chester v. Eyre, 181 Pa.. 642 ; Potts v. Phila., 195 Pa. 619.
    January 2, 1906 :
   Pee Ctteiam,

These cases involve substantially the same questions and were disposed of by the court below in one opinion on which the judgments are affirmed.


author: Mr. Justice Mestrezat,

text:
    Michell v. Low et al., Appellants.

      Wills — Canceled will — Evidence—Probate—Execution—Contents of will— Subscribing witness.

    The contents of a lost will, or of a will which has been destroyed or canceled without the consent of the testator cannot be shown until its execution has been proved by the testimony of two witnesses.
    The testimony of a subscribing witness to a will alleged to have been destroyed without the consent of the testator is insufficient to establish the execution of the will where the witness is unable to fix the year or the season of the year in which the will was made, and it appears that he did not read the will, nor hear it read, did not know who was appointed executor, and his testimony showed that a legacy was mentioned in the paper which he witnessed which was not in the paper offered for probate.
    The testimony of a subscribing witness to a will alleged to have been destroyed without the consent of the testator, is insufficient to show the contents of the will, where it appears that the witness was a stenographer, that she had written a very large number of wills, that in no case, except the present, could she recall the contents of the instrument, that she had no data or written memoranda to refresh her memory, nor did she show any reason why she should have charged her memory with the different provisions of the will in suit, and it also appears that the witness was not corroborated by a single witness as to the alleged contents, and was contradicted as to other material points in the case.
    Where it is sought to establish a will alleged to have been destroyed without thé consent of the testator, the evidence must be positive and sufficient to overcome both the presumption of revocation by the testator, and the presumption of innocence on the part of the third person charged with destroying the will.
    Argued Nov. 1, 1905.
    Appeal, No. 168, Oct. T., 1905, by-defendants, from judgment of O. P. No. 2, Allegheny Co., April T., 1905, No. 997, on verdict for plaintiff in case of Eliza Michell v. Mary A. Low et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Issue to try the validity of a will. Before Young, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff. Defendants appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      T. S. Brown, with him Wm. G. Stewart, F. W. Hughey and Alexander Gilfillan, for appellants.
    The burden is on the plaintiff to prove not only the execution of a will, but that it was destroyed by some person other than the testator, and not in his presence, or by his direction: Hock v. Hock, 6 S. & R. 47; Simrell’s Est., 154 Pa. 604; McKenna v. McMichael, 189 Pa. 440; Deaves’s Est., 140 Pa. 242; Foster’s App., 87 Pa. 67; Wharram v. Wharram, 10 Jurist (N. S.), 499.

      H. H. Rowand, with him A. H. Rowand, for appellee,
    cited: Butts v. Armor, 164 Pa. 73; Shaver v. McCarthy, 110 Pa. 339; Newhard v. Yundt, 132 Pa. 324; Foster’s App., 87 Pa. 67; Gardner’s Est., 164 Pa. 420; Simrell’s Est., 154 Pa. 604; Deaves’s Est., 140 Pa. 242.
    January 2,1906 :
   Opinion by

Mr. Justice Mestrezat,

In this case the register of wills of Allegheny county sent his precept to the court below commanding it to frame an issue to determine the following questions of fact: 1. Did James Tolhurst on or about the — day of March, A. D. 1900, sign a paper writing as and for his last will and testament, substantially in the form of exhibit “ A,” hereto attached ? 2. Did the •said paper writing remain unrevoked by tbe testator, Jamqs Tolhurst, until his death ? Exhibit “ A ” attached to the precept purports to be a copy of the last will of James Tolhurst, witnessed by Charles A. Stewart and Tula Naser, in which the testator directs his debts to- be paid, his body to be buried in Allegheny cemetery and tombstones placed at his grave, and then “bequeaths to Eliza Miehell all my estate, real, personal 'and mixed, absolutely.” Joseph Mitchell is appointed executor. ■ • ■ ■ ■

On the trial of the issue framed in pursuance of the precept, the learned judge, being of opinion that the evidence was sufficient, submitted both questions to the jury who answered both in the affirmative. Judgment was entered ón the verdict and the defendants have appealed.

It appears that James Tolhurst lived for many years in the seventeenth ward of the city of Pittsburg and died there November 19, 1901, a widower and without children. His nearest relatives were cousins. At his wife’s death in 1897 or 1898, Eliza Miehell, the plaintiff, and her husband removed to Tolhurst’s home and she remained there until a short time prior to his death, when she removed to another house. During the occupancy of his house by the Michells, Tolhurst remained-with them, paying board to Mrs. Miehell and she paying him rent for the premises. Joseph Mitchell, named as executor in the alleged will, was the alderman of the ward in which the parties resided. He wrote at least four wills for Tolhurst and probably more. The evidence shows that he wrote and kept in his possession in his office the wills of many people of that community. He died August 11, 1903. Letters of administration were granted on Tolhurst’s estate and at the audit of the administrator’s account before the orphans’ court of Allegheny county in March, 1903, Mrs. Miehell presented for allowance a claim against the estate for $1,001.60 for services in attending Mrs. Tolhurst in her last illness, for boarding Tolhurst, etc. The claim was rejected by the auditing judge, whereupon, in May, 1903, Mrs. Miehell presented her petition to the. orphans’ court praying for a rehearing, in which she avers that “she has come into possession of after-discovered evidence which she is informed and believes is very important in-substantiating her claim and to show that the decedent, James Tolhurst, intended to recompense her for services rendered by testamentary provision in his will; . . . . that it was testified by Squire Mitchell that the decedent made several wills in which your petitioner was the principal devisee, and that shortly before his death those wills wore destroyed by his orders ; ” and then avers that Tolhurst made a nuncupative will about November 15, 1901, in which she was the principal beneficiary. An answer was filed and the matter has not yet been disposed of by the court.

On January 21, 1905, Mrs. Michell presented her petition to the register of wills of Allegheny county asking for the probate of an alleged will of James Tolhurst, a copy of which was thereto attached, and averring that the will was destroyed during the lifetime of Tolhurst by Joseph Mitchell, “ but not in the presence of the testator and by his express direction.” The defendants, the heirs-at-law of Tolhurst, objected to the probate of the will, alleging “that the writing was never executed by the said James Tolhurst, or if it was that the same was revoked by him during his lifetime.” The register then certified to the common pleas the issue referred to above.

To justify the verdict, the jury was required to find, on sufficient evidence, (1) the due execution of the alleged will by the testator; (2) its contents substantially as set forth in the copy attached to the precept as exhibit “ A,” and (3) that the instrument was unrevoked at the death of the testator.

1. The sixth section of the Act of April 8, 1833, P. L. 249, 2 Purd. 2102, provides that in all cases a will “ shall be proved by the oaths or affirmations of two or more competent witnesses, otherwise such will shall be of no effect.” And the contents of a lost will or of a will which has been destroyed or canceled without the consent of the testator cannot be shown until its execution has been proved by the testimony of two witnesses: Hock v. Hock, 6 S. & R. 47; Foster’s Appeal, 87 Pa. 67; Derr v. Greenawalt, 76 Pa. 239 ; Combs’s Appeal, 105 Pa. 155; Simrell’s Estate, 154 Pa. 604; McKenna v. McMichael, 189 Pa. 440. Has the plaintiff on whom the burden of proof rests shown by two witnesses the execution of the alleged will? Tula Naser and Charles A. Stewart, stenographer and clerk respectively in the office of Alderman Mitchell, are the witnesses relied on to meet this essential requisite of the plaintiff’s ease. Miss Naser testifies that she wrote four wills for Tolhurst: one immediately prior to his goingto a hospital in March, 1900, which he signed by his mark, one immediately after his return from the hospital, the will involved in this controversy, which was signed by the testator in the presence of herself and Stewart, and two subsequent unsigned wills. Assuming, without conceding, that Miss Naser, as one witness, has satisfactorily proven the execution of the will, an alleged copy of which accompanied the precept sent by the register to the court below, we must next inquire as to the sufficiency of Stewart’s testimony to prove the execution of the instrument. He testified, inter' alia, as follows: “ Q. Did you ever witness any wills for Mr. Tolhurst in his lifetime ? A. Yes, sir. Q. I show you exhibit No. 1 (copy of alleged will) and ask you if you are the Charles A. Stewart, notary public, that swore Miss Naser to this paper? A. Yes, sir. Q. Did you examine that paper when you swore her? A. Yes, sir. Q. Do you remember witnessing a will for James Tolhurst at any time ? A. Yes, sir. Q. Do you remember when you witnessed the last will ? A. I don’t mind just what time it was; it was the last will ever he had for him. Q. Do you remember what year? A. Eight after he came from the hospital. Q. You are not sure of that? A. No, sir. Q. Do you know whether it was spring or summer or fall ? A. It was in the summertime, I think. Q. How ? A. I don’t mind just which now. Q. Did you see Mr. Tolhurst sign his name? A. Yes, sir. Q. Who else witnessed it ? A. Miss Naser. Q. Did she do that at the request of Mr. Tolhurst? A. Yes, sir. Q. In his presence? A. Yes, sir. Q. Miss Naser signed in your presence? A. Yes, sir. Q. Do you remember what was in that will, Mr. Stewart ? A. No, I couldn’t tell you; I heard him say he wanted to leave it to Mrs. Michell. Q. You heard him dictate the will? A. Well, I was in and out all the time; I know he was dictating a will of James Tolhurst to Miss Naser. Q. You, as I understand, did not read the will over? A. No, sir, I didn’t. Q. Do you know who was appointed executor under the will? A. No, sir.” Stewart further says that he heard Mitchell dictate to Miss Naser three or four wills for Tolhurst, but he witnessed only one; and also that $200 were bequeathed to some person other than Mrs. Michell in the will which he witnessed.

' From this testimony it is apparent, we think, that Stewart fails to identify exhibit “.A ” as a copy of the will which he attested with his signature. He was not asked that question, it will be observed, nor did he testify that the paper referred to was a copy of the will which he witnessed. He says the will he attested was written and signed after Tolhurst left the hospital, but he does not fix the year and is uncertain as to whether it ivas in the spring, summer or fall. Miss Nasor testifies that the original or exhibit “ A ” was written and signed immediately after Tolhurst left the hospital, but is this the will which Stewart testifies he attested as a subscribing witness ? In exhibit “ A ” the day of the month is blank and the paper being a copy and not the original, Stewart did not and could not identify his signature from the writing nor the paper from its date. Neither does he identify exhibit “ A ” by its contents as being a copy of the paper ho witnessed. He testifies he did not know who was appointed executor in the will. He did not read the will and does not say he heard the will dictated or read. The most he does say is that he knew Mitchell “was dictating a will of James Tolhurst to Miss Naser.” He does not testify that Mrs. Michell was the beneficiary in the will he witnessed, but that he “ heard him (Tolhurst) say he wanted to leave it to Mrs. Michell.” It therefore conclusively appears that Stewart did not know the contents of. the paper which he says he signed as a witness and, as the copy of the paper is not dated and the original had been destroyed, it necessarily follows that he could not identify exhibit “ A ” as a copy of the will he saw Tolhurst sign and which he attested as a subscribing witness. Moreover, his testimony not only fails to identify exhibit “A” as a copy of the will he witnessed but tends to show the contrary. In that paper it will be observed that Mrs. Michell is the sole devisee and legatee of “ all my estate, real, personal and mixed absolute.” Stewart testifies, however, that in the will he witnessed Mrs. Michell was the “ sole heir except 1200, he (Tolhurst) said, for a niece, I mind that; I know there was $200 mentioned for somebody; I don’t know who it was for.” This testimony conclusively shows that the will which Stewart witnessed is not the paper presented for probate as the last will of Tolhurst.

Failure to identify the will produced defeated its probate in Hock v. Hock, 6 S. & R. 47. In that case Gibson, J., delivering the opinion, says: “ Taking for granted, then, that Charrington’s evidence was sufficient on his part, was there complete proof by Rodernel, and had his evidence any necessary connection with the supposed will ? ” Charrington drew the will and suggested to the testator that he get Rodernel also to witness it. The testator said Rodernel was busy with his hay and he would postpone seeing him for a few days. Rodernel testified that the testator came to him the same summer, where he was making hay, and said Charrington had drawn his will and requested witness to go with him and sign it as a witness. Rodernel said it did not suit him to go and the testator replied that it would do at another time. Commenting on this testimony, Justice Gibson says : “This is all the material evidence. The defect in it is, there is nothing to show that the declarations of the testator referred to the will produced. Charrington may, for anything that appears, have drawn more than one will. Take it, that he swears that he drew but one (and without this, the declarations of the testator can in no way be connected with the supposed will), still that part of the case would depend on the evidence of but one witness. Strike out Charrington’s evidence and how will the case stand? . . . . Nor should the case, as contended, have been left to the jury to enable them to draw possible inferences and conclusions from facts indubitably proved; the jury would have, doubtless, believed the whole matter on the credit of Charrington alone ; but where there is not such proof as the law exacts, the court is bound to direct the jury, be their belief what it may, to find against the party failing. If the testator, in his conversation with Rodernel, had mentioned the substance of the contents of his will; or if it had been shown to have been found among his papers'at his death, there would have been at least a circumstance to leave to the jury for the purpose of connecting his declarations with the paper in question; but, as the evidence stood, there was nothing.” This case is followed and approved in Derr v. Greenawalt, 76 Pa. 239.

The language of the court in the Hock case is very apposite here. If we strike out the testimony of Miss Naser, Stewart’s testimony would be wholly insufficient to identify exhibit “ A ” as a copy of the will he signed as attesting witness. Not having the original paper before him and not knowing its contents by reading it or having heard it read, all that he possibly could testify to is that he with Miss Naser witnessed a will signed by Tolhurst prepared in Mitchell’s office in the spring or summer of 1900. It is true Stewart said he signed but one will and Miss Naser said exhibit “ A ” is a copy of the will that both signed, but, as in the Hock case, she alone can identi fy exhibit “ A ” as the paper signed by both, and that is not sufficient.

The contents of the alleged will were not shown by clear and satisfactory evidence. The copy furnished by Miss Naser and attached to the pleadings shows that the will was made in March, 1900, but she being interrogated as to the date testified that she would not say that Tolhurst signed it in March nor in the year 1900. The most she would say was that he signed it after he came out of the hospital. She testifies that the writing was destroyed about a week or ten days before Tolhurst died in November, 1901. In February, 1905, more than three years after she could have seen the paper, she says she went to the office of plaintiff’s counsel and gave him the contents of tho will as it appears in the copy attached to the pleadings. She had no data or written memoranda of the contents of the will, nor has she disclosed any reason why she should charge her memory with the different provisions of the will. She testified that, as stenographer, she wrote many wills for Alderman Mitchell, and it does not appear that in another single instance she can recall the contents- of the instrument. She says she used the same form in writing all the wills, and assigns that as a reason why, after such great lapse of time, she can give from memory the contents of Tolhurst’s will. But that reason is by no means satisfactory. That might do as to the beginning and conclusion of the will. She does not claim that she had a written form for the wills she wrote and that this copy, with the necessary changes, was taken from it. The copy, if she is believed, was made from the form carried in her mind. But it is manifest that the second and third paragraphs of the paper were not taken from any established form. They direct the place of Tolhurst’s burial, the erection at his grave of a tombstone, which was to be a duplicate of his wife’s, and contained the bequest to Mrs. Michell and the reason for it. These paragraphs were necessarily applicable only to this will and it is incredible that, notwithstanding the numerous wills which she says were written in Mitchell’s office, Miss Naser could under the circumstances recall the substance of these paragraphs as well as the other portions of the will more than three years after she had seen the 'paper.

Aside from these discrediting facts, Miss Naser is contradicted by the testimony of witnesses as to other material points in the case. She is not corroborated by a single witness as to the alleged contents of the will. We do not overlook the testimony of the plaintiff’s witnesses who testified that Tolhurst told them that Mrs. Michell was the beneficiary in his wills. That is not sufficient proof, without more, of the contents of the will in question, which was not specifically identified by any other witness than Miss Naser.

Assuming the existence of the will to have been established by the plaintiff, we are not convinced that the evidence was sufficiently clear and satisfactory to overcome the presumption that it was destroyed by the testator animo revocandi, supported, as it was, by the positive and direct testimony of the defendants’ witnesses. In such cases, the evidence must be positive and sufficient to overcome both the presumption of revocation by the testator and the presumption of innocence on the part of a third person charged with destroying the will. 23 Am. & Eng. Ency. of Law (2d ed.), 147. The contention of the plaintiff is that Tolhurst called at Mitchell’s office a week or ten days prior to- his death and said he desired to make some changes in his will, which had remained in Mitchell’s possession, and requested him to make a new will embodying the proposed changes; that the stenographer prepared another will but Tolhurst said he would call again and sign it and left the office, whereupon Mitchell tore the signature off the will and directed Miss Naser to destroy it, she protesting at the time against the destruction. This, in substance, is the testimony of Miss Naser. Stewart was called in corroboration. Immediately following that part of his testimony quoted above, he was interrogated as to his knowledge of the destruction of the will. He says ho was in the street and heard Miss Naser reproving Mitchell in the latter’s office for tearing up the will. While he says it was the will he signed as a witness, yet his testimony clearly shows that his knowledge of the alleged fact is derived, not from seeing the paper or knowing its contents, but solely from having overheard a conversation in which a will was referred to as having been torn or destroyed. He admits that his only reason for saying that it was the will he signed was “ because he heard them talking about it; they were talking about the will, and I suppose it was the will they were tearing up. ” As said by the learned judge in his charge, referring to Stewart’s alleged corroboration of the destruction of the will: “ There is no evidence from him (Stewart) as to what that paper (which was destroyed) was, and he does not attempt to tell us.” When it is recalled that many wills were prepared and kept in that office and that, as observed above, Stewart had failed to identify exhibit “ A” as a copy of the will he signed, it is apparent that Stewart furnishes no corroboration of Miss Naser’s testimony that, on this occasion, Mitchell destroyed the will alleged to have been signed in March, 1900. And, as pointed out in the learned judge’s charge, the testimony of Carter and Cox relative to the declaration of Mitchell as to the circumstances attending the destruction of the will, was uncertain and indefinite; so much so, that it cannot be regarded as a 'substantial corroboration of Miss Naser’s testimony.

The presumption is that Tolhurst destroyed the will with the intention of revoking it. In aid of this presumption, the defendants introduced the testimony of Joseph Mitchell, for many years an alderman in the city of Pittsburg, and who, it is admitted, prepared the will and was its custodian. His testimony is direct and positive. He says that he prepared half a dozen wills for Tolhurst and that not more than a month or two before Lis death Tolhurst ordered him to destroy all of them, which he did at the same time in Tolhurst’s presence. He further testifies that Tolhurst made no later will and left no writings in his possession. This testimony was given by Mitchell when he was called by Mrs. Michell as a witness to establish her claim against Tolhurst’s estate in the orphans’ court of Allegheny county. England, another of defendants’ witnesses, testifies that, Mitchell having informed him prior to the death of Tolhurst that he had written a will for the latter in which England was named as executor, he called on Mitchell the day after Tolhurst’s funeral and inquired about the will, and was then informed by Mitchell that all of Tolhurst’s wills had been destroyed. Mrs. McKenna, a relative of Tolhurst, testified that shortly after his death she inquired of Mitchell how Tolhurst’s estate was left and was informed that, at his request, Mitchell had burned the will in the testator’s presence. As will be recalled, Mrs. Michell left Tolhurst’s house two or three weeks prior to his death and about the same time he also left the house and went to live with Mr. Cox. Mrs. Jennie Davis testifies that she had a conversation with Tolhurst at that time in which he said he had had a difference with Mrs. Michell, had destroyed his will and was going to board with Mr. Cox. Tolhurst also told her in this conversation that he intended to make another will in which the beneficiaries would be the boys of the Mystic, Chain, the Odd Fellows’ Home, and a friend. There is other evidence, which need not be referred to in detail, corroborative of the testator’s revocation of the will, such as the averments in Mrs. Michell’s petition for a rehearing of her disallowed claim in the orphans’ court.

Having carefully read and considered the evidence in the case, we are all of opinion that it was not sufficient to justify the court in submitting it to the jury on either of the questions presented for their determination, and that, therefore, the court should have affirmed the defendants’ point and withdrawn the case from the jury.

The judgment is reversed, and the court below is directed to enter judgment in favor of the defendants.


author: Pee Cueiam,

text:
    Carson v. Allegheny City, Appellant.

      Road law — Report of viewers — Evidence—Report as prima facie evidence— Act of April 2, 1903, P. L. 124.
    On the trial of an appeal from a report of viewers assessing benefits and damages in a road case, where it appears that the report was prepared and filed in proceedings conducted under the provisions of the Act of May 16, 1891, P. L. 75, the report cannot be received as “prima facie evidence of the benefits as therein mentioned,” as provided by the Act of April 2, 1903, P. L. 124.
    On the trial of an appeal from the report of viewers in a road case the contract between the city and contractors for the improvement is not admissible in evidence for the defendant. Such a contract gives no information as to the value of the property before or after the improvement.
    Argued Nov. 2, 1905.
    Appeal, No. 169, Oct. T., 1905, by defendant, from judgment of C. P. No. 2, Allegheny Co., Jan. T., 1903, No. 645, on verdict for plaintiffs in case of William Carson et al. v. Allegheny City.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of viewers.
    Verdict and judgment for plaintiff for $3,500. Defendant appealed.
    On motion for a new trial Frazer, P. J., filed the following opinion:
    This was an appeal by plaintiff from a report of a board of viewers assessing benefits and damages for widening and changing the grade of West End avenue in defendant city, and is one of the few appeals taken under the act of 1901 remaining undisposed of. The report was filed in court and confirmed nisi on November 4, 1902, and that report awarded plaintiff’s damages in the sum of $651.75, and assessed benefits against them in the sum of $2,900. At the trial a verdict was rendered in plaintiff’s favor for $3,500. In presenting defendant’s case, defendant’s counsel offered in evidence the viewers’ report, for the purpose of showing the award and assessment made by the board, and in support of 'the offer cited that part of section 6 of the Act of April 2, 1903, P. L. 124, which is as follows:

      “ Upon the trial of any such appeal in court, the report of viewers, as finally approved, confirmed, modified or changed by tbe court, shall be prima facie evidence of the benefits as therein mentioned.”
    ' An objection to the offer was sustained and upon that ruling this motion ,for a new trial is principally based. The act of 1903, amends sections 2 and 6 of the act of May 16, 1891, providing a new means for giving notice to property owners of the action of the viewers, and authorizing councils to provide by whom such notice shall be given. The act further requires the report to be filed in the office of the prothonotary and confirmed nisi, which report, after thirty days, becomes conclusive unless excepted to or appealed from within that time. The amended statute further requires the property owner appealing from such report to make affidavit that the appeal is not taken for delay. Then follows the clause above quoted, which defendant claims makes the report “prima facie evidence of the benefits as therein mentioned.” The offer was refused because, in our opinion, this case was not within the act. The report here was made under the provisions of the act of 1891 and before the passage of the act of 1903. There is a material difference in the provisions of these acts. Upon completion of the 'viewers’ report in this case, notice of the time and place of the viewers’ meeting, to hear exceptions to their schedule of assessments for benefits and damages, was not given property owners in the manner required by the act of 1903. The report was not filed in the office of the prothonotary and confirmed nisi. Neither had appellants stated the grounds upon or for which the appeal was taken, except in a general way, nor had they made affidavit that the appeal was not intended for delay. Under these circumstances, we were of opinion the report was not admissible. "While the legislature undoubtedly had the right to make the report prima facie evidence of benefits sustained, the statute should clearly show such intention. The act says “ upon the trial of any such appeal in court,” which it seems- to us means an appeal taken in compliance with the requirements of the act of 1903, “ the report .... shall be prima facie.-evidence of the benefits as therein mentioned.” This language, in our opinion, refers to a report prepared and filed in accordance with the'amended apt of assembly, and does not refer to a report made under a previously existing law and not prepared and filed as required by the later statute. Viewers’ reports made and filed since the approval of the act of 1903 are probably admissible as prima facie evidence of benefits sustained, but those made under the act of 1891 are not, and were not intended to be by the legislature.
    The second reason for a new trial refers to our refusal to admit as evidence on the part of defendant the contract between the city and the contractors for doing the grading on the street. It seems to us this reason needs no discussion. That contract could not have given the jury any information whatever as to the value of plaintiff’s property either before or after the improvement. It was therefore not proper evidence.
    ijc- %

    And now, July 18, 1905, new trial refused.

      Errors assigned were (1) refusal to admit in evidence the contract between the city and contractors ; (2) refusing to admit in evidence the report of the viewers.

      W. W. Stoner, with him Stephen G. Porter and Craig Smith, for appellant,
    cited: Bingaman v. Pittsburg, 147 Pa. 353; Twenty-eighth Street Sewer, 158 Pa. 464; Travers’s App., 152 Pa. 129 ; Kille v. Reading Iron Works, 134 Pa. 225.

      Frank P. Sprout and Thomas M. Marshall, Jr., for appellee were not heard.
    January 2, 1906:
   Pee Cueiam,

Judgment affirmed on the opinion of the court below refusing a new trial.


text:
    Trau, Appellant, v. Sloan.

      Equ/ity — Specific performance — Principal and agent.

    Specific performance of a written contract for the sale of real estate signed by a person purporting to be the agent of the vendor, will not be enforced where the court finds as a fact that the person signing the contract was not in fací the agent of the owner of the land with authority to enter into a written contract.
    Argued Noy. 2, 1905.
    Appeal, No. 171, Oct. T., 1905, by-plaintiff, from decree of C. P. No. 2, Allegheny Co., April T., 1905, No. 933, dismissing bill in equity in case of Gus Trau and Philip Loevner, trading as Trau & Loevner v. William L. Sloan, Earl Sloan and Leopold Vilsack.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The opinion of the Supreme Court states the facts of the case.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      Edward Steuer, with him G. K. Wright, for appellants.

      George H. Quaill and J. V. Durilevy, for appellees.
    January 2, 1906:
   Opinion by

Mr. Justice Mestrezat,

This is a bill for the specific performance of a written contract for the sale of real estate. The controlling question in the case is whether L. A. Clark & Company were authorized by William L. Sloan, the owner of the property, to enter into the agreement with the plaintiffs, who were the purchasers. The learned trial judge found as a fact and as a conclusion of law that Clark & Company were not authorized to act as the agents of Sloan in the sale of the property. We have examined with care the testimony in the case and fully agree with these findings. Before Sloan left the city of Pittsburg for California in February, 1905, he placed all his business matters, including the sale of this property, in the hands of his son, Earl. As found by the trial court, this fact was communicated to Clark & Company by both Mr. Sloan and his son. Zinn, Clark & Company’s representative, called on Mr. Sloan immediately prior to his leaving on his western trip and asked him if he would sell the property in dispute. Sloan told him he would sell but that he was about leaving for California to get a rest, and would be gone till April. Sloan then gave Zinn the net price he would accept for the property and told him that his son would be in Pittsburg during his absence, that all the dealings would have to be done through him, that his son would sign any papers and make any agreements that were to be made, and that he would keep Sloan posted as to any negotiations which might take place looking to a sale of the property. Zinn acted for Clark & Company in selling the property to the plaintiffs but at every step in the negotiations he consulted Earl Sloan and recognized him as the agent and person authorized to act for his father in consummating a sale. There is no evidence that would warrant a finding that Clark & Company were Sloan’s agents to negotiate a sale of the property. The plaintiffs rely upon the telegrams in evidence for such authority, but when read in the light of the admitted facts, known and understood by all the parties interested in the transaction, they confer no agency on Clark & Company to enter into a written contract of sale, but on the contrary, in the language of the learned judge’s findings, they “ wore intended only to express to Clark & Company the willingness of Sloan to sell the lands for $38,000 and that a commission of $500 would be paid.”

The plaintiffs having failed to establish the authority of Clark & Company as Sloan’s agents to enter into the written contract which they ask the court to enforce against Sloan, the court below was clearly right in refusing a decree for specific performance.

The decree is affirmed.