text:
    Sensenig, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Common carriers — Discrimination—Act of June 4, 1888, P. L. 78 — Assignments—Actions—Damages—Torts—Statutory penalties.

    1. A suit brought against a railroad to recover damages for discrimination wherein the plaintiff declares under the act of June 4, 1883, making the common carrier “hable to the party injured for damages treble the amount of injury suffered,” and by his statement of claim, and several amendments thereto, claims treble damages, is not assignable before verdict as a claim for either single or treble damages, and this is the ease whether it be regarded as an action for a statutory penalty or as an action sounding in tort for the recovery of unliquidated damages.
    2. A right of action strictly personal is not assignable, and the general doctrine is, both in law and equity, that a right of action for a pure tort is not the subject of assignment.
    Argued May 17, 1910.
    Appeal, No. 187, Jan. T., 1909, by use plaintiff, from order of C. P. Lancaster Co., Aug. Term, 1897, No. 31, making absolute rule to strike his name from record in case of Levi Sensenig, to the use of Daniel H. Sensenig, v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      Rule to show cause why the name of the use plaintiff should not be stricken from the record. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.
    The court made the rule absolute.

      Error assigned was the order of the court.

      William II. Keller, with him John A. Coyle, for appellant.
    We respectfully submit that the court below erred in confusing the fundamental and common-law right of the legal plaintiff, Levi Sensenig, to recover for the discrimination practiced against him by the defendant company, which was at the basis of the present suit, with the right to recover treble damages for such discrimination as provided by the Act of June 4, 1883, P. L. 72.
    This fundamental right of action for such alleged discrimination was created neither by sec. 3, art. XVII, of the constitution of Pennsylvania, nor by the act of June 4, 1883, but was part and parcel of the common law: Sandford v. R. R. Co., 24 Pa. 378; Shipper v. R. R. Co., 47 Pa. 338; Hoover v. Penna. R. R. Co., 156 Pa. 220; Borda v. R. R. Co., 141 Pa. 484; Audenried v. R. R. Co., 68 Pa. 370; Cent. Iron Works v. R. R. Co., 17 Pa. C. C. Rep. 651; Missouri Pac. Ry. Co. v. Flour Mills Co., 211 U. S. 612 (29 Sup. Ct. Repr. 214); Hays v. Penna. Co., 12 Fed. Repr. 309; Tift v. Ry. Co., 123 Fed. Repr. 789; Denver, etc., Ry. Co. v. Ry. Co., 110 U. S. 667 (4 Sup. Ct. Repr. 185).
    The inability of the use plaintiff to recover the penalty of treble damages provided by the act of 1883, does not militate against his right to proceed for the amount recoverable at common law: Yocum v. Zahner, 162 Pa. 468; Robbins v. Farwell, 193 Pa. 37.

      Henry Wolf Bible, with him John A. Nauman, for appellee.
    The action cause of attempted to be assigned is for damage claimed to have resulted from discrimination alleged to have been practiced by the defendant and is derived from the Act of assembly of June 4, 1883, P. L. 72: Tyrrill v. Lamb, 96 Pa. 464; Farmers’ & Mechanics’ Bank v. Israel, 6 S. & R. 293.
    July 1, 1910:
    This cause of action for discrimination is penal in character, and is, therefore, nonassignable: Logan v. R. R. Co., 132 Pa. 403; Moyer v. R. R. Co., 19 Pa. C. C. Rep. 383; Ladenburg v. R. R. Co., 6 Pa. Dist. Rep. 453; Parsons v. Ry. Co., 167 U. S. 447 (17 Sup. Ct. Repr. 887); Carter v. R. R. Co., 143 Fed. Repr. 99; Hoover v. R. R. Co., 156 Pa. 220; Goodridge v. Ry. Co., 35 Fed. Repr. 35; Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512 (6 Sup. Ct. Repr. 110); Blair v. Ry. Co., 109 Iowa, 369 (80 N. W. Repr. 673).
    ■An action penal in character, is nonassignable: Osborn v. First Nat. Bank, 175 Pa. 494; Osborn v. Bank, 154 Pa. 134; Barnet v. Nat. Bank, 98 U. S. 555; Stephens v. Monongahela Nat. Bank, 111 U. S. 197 (4 Sup. Ct.. Repr. 336); Pardoe v. Iowa State Nat. Bank, 106 Iowa, 345 (76 N. W. Repr. 800); Nichols v. Bellows, 22 Yt. 581; Bank v. Dushane, 96 Pa. 340; Higley v. Bank, 26 Ohio St. 75.
    This cause of action for discrimination, whether or not it be regarded as penal in character, and whether or not it be regarded as involving liability for treble damages, is nonassignable in Pennsylvania: Weller v. Ry. Co., 68 N. J. Eq. 659 (61 Atl. Repr. 459); Marsh v. R. R. Co., 204 Pa. 229.
   Opinion by

Mr. Justice Potter,

Levi Sensenig brought this action under the Act of June 4, 1883, P. L. 72, to recover damages for discrimination against him in freight charges upon cattle shipped by him. In the statement originally filed he claimed to recover treble damages. He seemed not to be sure of his ground, and filed three amendments to his statement, in the last of which he averred damages to his business as proprietor of. a ‘stock yard by the rebates given a competitor, Stewart, and claimed damages in the sum of $24,432, without referring to the act of June 4, 1883, or stating that his claim was for the treble damages allowed by that act; but the last amendment averred that the defendant allowed rebates to Stewart amounting to $8,144, which is one-third of the damages claimed. The claim is for the same sum as the treble damages demanded in the original statement. On January 20, 1902, after the case was at issue, the plaintiff, Levi Sensenig, executed an assignment to his son Daniel H. Sensenig, of “all my right, title, interest, equity, claim and demand in a certain suit now pending in the court of common pleas of Lancaster county” (reciting the suit in which the present appeal is taken); and he also empowered the said Daniel H. Sensenig to mark the suit to his use. On the same day, January 20, 1902, the suit was marked to the use of the assignee. On November 23,1908, a petition was filed by defendant, and a rule granted to show cause why the use plaintiff should not be stricken from the record, and on January 16, 1909, the rule was made absolute. From this order Daniel H. Sensenig, the assignee of the suit and the use plaintiff, has appealed.

The single question raised by this appeal, is whether a suit brought against a common carrier to recover damages for discrimination under the act of June 4, 1883, is assignable before verdict. Counsel for appellant admit that the claim for treble damages is not assignable, but they contend that the claim for single damages, or for actual compensation, for the loss sustained, may be assigned. The plaintiff declared under the act of June 4, 1883, which makes the offending common carrier “liable to the party injured for damages treble the amount of injury suffered;” and in his statement of claim, and on the several amendments, he claimed treble damages. These damages awarded by the statute must be regarded as a penalty. We see no room for a distinction in this respect, between the provisions of this act and those of the United States statute giving to a person who has been charged usurious interest by a national bank, the right to recover back from the bank “twice the amount of the interest thus paid.” But an action to enforce that right has been expressly held to be “for a statutory penalty:” Osborn v. Bank, 154 Pa. 134. And Mr. Justice Mitchell said in Osborn v. Bank, 175 Pa. 494, 498: “The enforcement of it [the statutory penalty] is a personal privilege or right of the party aggrieved.”

It should be noted that the act of 1883 makes the carrier liable “to the party injured,” and not to his legal representatives or his assigns. This seems to confirm the view that the right given to him is purely personal. A right of action strictly personal is not assignable and the general doctrine is, both in law and equity, that a right of action for a pure tort is not the subject of assignment: 2 Amer. & Eng. Ency. of Law, 1020. The right which defendant was charged with infringing in this case, was the right of the plaintiff to have at the hands of the common carrier, equal or like service upon the same terms and conditions as those upon which they were rendered to his competitor. This was a personal right, and if he was deprived of it, it was a wrong or injury, arising not out of an agreement, but because of a breach of duty, for which the law gives to the injured person a right to an action for damages, This action is in its nature, one of tort to recover unliquidated damages. Reference to the statement of claim' shows that the charge is for discriminating against plaintiff, in favor of a business competitor. Such a claim cannot be for the recovery of any specific property; it seeks damages for the injury caused by the unlawful interference with plaintiff’s right to do business with a common carrier upon equal terms with his competitor. Such a right does not seem to us to be a property right, capable of assignment, prior to liquidation; but similar rather to an action for malicious prosecution, or for the abuse of legal process, which actions are not assignable. In Shoemaker v. Keely, 2 Dallas, 213, it was held that a right of action for deceiving a bankrupt in the sale of goods did not pass to the assignee. The court said, “Torts must be considered as the mere personal concern of the bankrupt.” In Sommer v. Wilt, 4 S. & R. 19, it was held that an action for malicious use of process is not assignable. The court said (p. 27): “This personal tort is not the subject of assignment under the insolvent debtors’ act; it is neither estate, credit, nor effects. The insolvent debtor would not be discharged from personal responsibility for such acts committed by him. The case in 2 Dali, is conclusive. It, is a personal action which would die with his person.” So also in O’Donnel v. Seybert, 13 S. & R. 54, it was held that an action for excessive distress was not assignable. In Marsh v. Western New York, etc., R. R. Co., 204 Pa. 229, we held that a widow could not assign, before a verdict, her statutory right of action for the death of her husband.

Counsel for appellant practically admit that the treble damages imposed by the act of 1883, are to be regarded as a penalty, and that the right to such damages is not assignable. But they urge that this should “not militate against his right to proceed for the amount recoverable at common law; the failure to recover the penalty does not drag down with it the fundamental right of action.” In other words, they argue that the original plaintiff had a right of action at common law based upon the alleged discrimination against him, under which he might recover his actual damages, and that this right, having relation to property, i. e., plaintiff’s business, was assignable. The difficulty with this contention is that plaintiff has declared expressly on the statute, and for the statutory penalty of treble damages. His statement, whether as originally filed or as finally amended, makes no claim based on any common-law right, but claims the treble damages given by the statute. The last two amendments while not naming the statute, name an express sum and claim to recover treble that amount. The right to sue at common law is not fairly in question in this case, and the argument based upon it seems to be an afterthought.

Our conclusion in the present case is, that whether the action be regarded as for a statutory penalty, where the right to recover is given “to the party injured” — or whether it be regarded as an action sounding in tort, for the recovery of unliquidated damages, in either case the enforcement of the right is a personal privilege of the party aggrieved, and is not, therefore, capable of assignment.

The specification of error is overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Milton, Appellant, v. Philadelphia.

      Negligence — Sidewalk—Defective covering — Finding of referee.

    In. an action of trespass for personal injuries against a city, charging negligence in suffering a pavement to become unsafe and in not properly guarding a hole in the sidewalk, tried before a referee without a jury, a finding for the plaintiff by the referee will be sustained where the evidence strongly tends to show that the hole, an old coal chute, occupied nearly half the width of the sidewalk and was in the direct line of travel at a point where the street was not well lighted, that it was covered by an ordinary house door, loosely thrown over it a year or two before the accident, which had become so rotten that when the plaintiff stepped thereon it broke with her weight and injured her,' that a policeman had marked the spot with a red light and that its condition was known to policemen and neighbors a long time prior to the accident.
    Argued May 17, 1910.
    Appeal, No. 344, Jan. T., 1908, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1906, No. 3,130, for defendant, reversing judgment of referee in case of Kate Milton v. City of Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before D. Clarence Gibboney, Esq., referee.
    The facts appear in the opinion of the Supreme Court.

      July 1, 1910:

      Error assigned was order reversing referee.

      Thomas Learning, with him John B. K. Scott, for appellant.

      Harry T. Kingston, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
   Opinion bt

Mr. Justice Elkin,

This is an action of trespass to recover damages for personal injuries alleged to have been suffered by reason of the negligence of the defendant. Trial by jury was waived and the case by agreement of the parties was referred to a referee under the act of 1874. The referee heard the witnesses produced by both sides and filed an elaborate opinion in which all matters in dispute were carefully considered. He found as a fact that the city was guilty of the negligence charged and that it should respond in damages to the amount of $2,500. Exceptions were taken to the material findings of fact and conclusions of law, and these exceptions were fully argued before the referee with the result that they were all dismissed and judgment was recommended to be entered in favor of the plaintiff upon the original award. Exceptions were then again taken and the case was fully argued before the learned court below with the result that the findings of fact and conclusions of law upon which the referee directed a judgment in favor of plaintiff to be entered were reversed and judgment was entered for defendant. From the judgment so entered by the court below this appeal was taken. The assignments of error do not raise any question as to the admission of testimony or as to the course of procedure before the referee. The learned court below based its decision entirely upon what was considered the preponderance of the testimony relating to the condition of the old door immediately before the accident, which, it was held, was not sufficient to give the city notice that it was dangerous to persons using the street in the usual way. We do not so read or understand the negligence charged and the testimony introduced in support of the allegations upon which the right to recover damages is based. Upon a review of the whole record including a careful examination of the testimony of all the witnesses we have concluded that the findings of fact by the referee were fully warranted and that contrary findings would disregard the weight of the evidence. This is not the casé of an ordinary cellar door having worn out and the city not having notice, actual or constructive, of the dilapidated condition. The negligence charged was that the city had suffered and allowed the pavement in question to become unsafe, and had allowed “a hole or depression to be and remain in the said pavement for a long space of time, and neglected to properly cover or guard the said hole, and failed and neglected to give warning to pedestrians of the presence of said dangerous hole.” The testimony shows that the hole referred to was an old coal chute and that it occupied nearly half the width of the sidewalk and was in the direct line of travel at a point where the street was not well lighted. An ordinary old house door was loosely thrown over this hole and this door had become so rotten that when the plaintiff stepped thereon it broke with her weight and thuá caused the injuries for which damages are sought to be recovered. There is a dispute as to whether the door which broke was the same old door as that which had been first placed over the hole, and some importance is attached to this controverted fact. We do not see how this can be considered a material or controlling fact in the case. Under the circumstances there can be no doubt as to the coal chuté being a part of the traveled sidewalk and as such it became the duty of the city to require the owner to make it safe for public travel, and. upon the failure on the part of the owner to do so, the duty rested upon the city itself. There is abundant testimony to show that the hole covered with an old door had been there for a yéar or two prior to the accident. It was known to police officers and to the neighbors for a long period of time before the accident occurred. A police officer testified that he had placed a red lamp on the door while acting as policeman to give notice to pedestrians. This could only mean that he considered the hole dangerous and that pedestrians should have notice of that danger. We do not see any escape from the conclusion that the negligence charged was fully sustained by the evidence and that a judgment in some amount should be recovered. If the case had been tried in the ordinary way, no one would seriously contend that it should have been taken from the jury, and if a jury had returned a verdict in the same amount as that awarded by the referee, there would be nothing to justify a reversal on appeal. The amount of the judgment directed to be entered by the referee is fully warranted by the evidence and we see nothing in the case to justify a reversal for the purpose of another hearing or trial. We agree with the referee as to his findings of fact and conclusions of law and think they should be sustained.

Judgment reversed and record remitted with instructions to enter judgment for plaintiff on the award of the referee.


author: Mr. Justice Moschzisker,

text:
    Manheim Borough, Appellant, v. Manheim Water Company.

      Municipal corporations — Boroughs—Water company — Acts of May 81, 1907, P. L. 355, and April 29, 1874 — Constitutional prohibition — Impairment of contracts.

    1. The Act of May 31, 1907, P. L. 355, providing “for the acquiring of water plants or systems by municipalities” is not applicable to the purchase by a borough of the property of a water company incorporated in 1884, under the general corporation Act of April 29, 1874, P. L. 73, inasmuch as it would be contrary to the constitutional provision prohibiting the violation of a contract.
    2. Where a water company’s property may, under its charter, be taken by a municipality at a sum equal to the net cost with interest at ten per centum per annum, deducting dividends, the legislature cannot thereafter pass an act providing for the appointment of appraisers to fix a price which the company is bound to accept under the penalty of losing the exclusive privileges conferred upon it by its charter.
    3. Where the legislature is given the constitutional power to alter, revoke or annul a charter, the charter is still accounted a quasi contract; and if the legislature undertakes to exercise the power, it must act in such manner that no injustice shall be done to the corporators.
    Argued May 17, 1910.
    Appeal, No. 153, Jan. T., 1910, by plaintiff, from decree of C. P. Lancaster Co., entered in Trust Book No. 21, p. 401, dismissing petition of plaintiff in case of the Borough of Manheim v. The Manheim Water Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for the appointment of appraisers under the Act of May 31, 1907, P. L. 355. Before Hassler, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the decree of the court dismissing the petition.

      Martin M. Harnish, with him William B. Harnish, for appellant.
    The act is not unconstitutional by reason of its impairing the obligation of a contract: White v. City of Meadville, 177 Pa. 643; Dorrance v. Bristol, 224 Pa. 464; Johnson v. Crow, 87 Pa. 184.
    No injustice is done by this act: Penna. R. R. Co. v. Phila. County, 220 Pa. 100; Phila. & Gray’s Ferry Passenger Ry. Co.’s App., 102 Pa. 123; Hestonville, etc., Pass. R. R. Co. v. Kelley, 102 Pa. 115; Long Island Water-Supply Co. v. Brooklyn, 166 U. S. 685 (17 Sup. Ct. Repr. 718).

      John E. Malone, with him W. U. Hensel, for appellee.
    The act impairs the obligation of a contract: Metzger v. Beaver Falls Boro., 178 Pa. 1; Wilson v. Boro, of Rochester, 180 Pa. 509; Downington Gas & Water Co. v. Boro, of Downington, 175 Pa. 341; Tyrone Gas & Water Co. v. Tyrone Boro., 195 Pa. 566; Penna. R. R. Co. v. Phila. County, 220 Pa. 100.
    July 1, 1910:
   Opinion by

Mr. Justice Moschzisker,

The Manheim Water Company was incorporated in 1884, under the general corporation Act of April 29, 1874, P. L. 73. It began supplying water to the citizens of the borough of Manheim in 1885, and to the borough in 1888. In February, 1910, the borough became desirous of obtaining the property of the water company and presented a petition for the appointment of appraisers under the Act of May 31, 1907, P. L. 355. The court below dismissed the petition on constitutional grounds, holding the act of 1907 inapplicable to companies incorporated under the act of 1874 prior to the Act of June 2, 1887, P. L. 310; and the borough has appealed.

Section 17 of art. I of the constitution of Pennsylvania provides that no law impairing the obligation of contracts shall be passed. Section 10 of art. XVI, provides that, “The General Assembly shall have the power to alter, revoke or annul any charter of incorporation now existing, and revocable at the adoption of this constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens of this commonwealth, in such manner, however, that no injustice shall be done to the corporators.” The act of 1874, sec. 34, clause 3, provides: “The right to have and enjoy the franchises and privileges of such incorporation (water company) within the district or locality covered by its charter shall be an exclusive one;” clause 7, “It shall be lawful at any time after twenty years from the introduction of water into any place as aforesaid, for the town, borough, city or district into which said company shall be located, to become the owners of said works and the property of said company, by paying therefor the net cost of erecting and maintaining the same with interest thereon at the rate of ten per centum per annum, deducting from such interest all dividends theretofore declared.” The Manheim Water Company, was entitled to the full benefit and protection of this act, and thereunder it had the exclusive right to furnish water in the borough of Manheim: Metzger v. Beaver Falls Boro., 178 Pa. 1; Tyrone Gas & Water Co. v. Tyrone Boro., 195 Pa. 566; Bennett Water Co. v. Millvale Boro., 200 Pa. 613.

“It is well-settled law, that an act of incorporation is a contract between the state and the stockholders:” Com. v. Pottsville Water Co., 94 Pa. 516. “An act of incorporation accepted and acted upon is a contract which a subsequent legislature may not impair:” Iron City Bank v. Pittsburg, 37 Pa. 340. Where the legislature is given the constitutional power to alter, revoke or annul a charter, the charter is still accounted a quasi contract: Wagner Free Institute v. Phila., 132 Pa. 612; and in exercising this power the legislature must act “in such manner that no injustice shall be done to the corporators:” Williamsport Passenger Ry. Co. v. Williamsport, 120 Pa. 1. “Whether injustice has been done in any particular case is inherently and necessarily a judicial question:” Penna. R. R. v. Phila. County, 220 Pa. 100.

The Act of May 31, 1907, P. L. 355, is entitled, “An act providing for the acquiring of water plants or systems by municipalities from corporations .... and the manner of ascertaining and arriving at the value of the same. ...” The first section provides that a municipal subdivision desirous of possessing waterworks owned by a private corporation may petition the court; sec. 2, “That the said court shall thereupon appoint three disinterested engineers as appraisers, to value and appraise such plant or system and the property used in connection therewith and reasonably necessary for its purposes .... who shall file their report. . . .” Section 3 provides: “That their report shall be final if not appealed from within ten days. . . . Either party may appeal .... and the court shall .... have power to increase or lower such appraisement;” sec. 4, “After such value is finally determined, the municipality is authorized to buy such water plant at the valuation so fixed; and the corporation owning same, shall, within ten days’ notice of such determination, file a paper indicating its consent and election to sell and convey its plant at the valuation fixed; and, in default hereof, such corporation shall cease to have any exclusive privilege of supplying such municipality or the citizens thereof with water.”

It is clear that the purpose of the act of 1907 is to create a new method by which a municipality may acquire the plant and system of a water company. “The test .... by which all laws may be tried is their effect:” Wyoming Street Case, 137 Pa. 494; and the practical effect of this act is to enforce the company’s acceptance of the price fixed by the appraisers under penalty of losing its most valuable asset, the exclusive right of furnishing water in a particular territory. Under the act of 1874 “the value is a fixed one, the net cost with interest at ten per centum per annum deducting dividends. The result is one of computation; there is no room for discretion or judgment: . . . .” White v. Meadville, 177 Pa. 643; while under the act of 1907, it is left to the appraisers to determine the value according to their judgment irrespective of the company’s charter right to receive the amount fixed in the act of 1874. “The point of injustice is reached long before that of confiscation:” Penna. R. R. Co. v. Phila. County, 220 Pa. TOO. When the stockholders of the water company invested their money they did so with the knowledge that should the borough desire to purchase the company’s property they would certainly get the price fixed in their act of incorporation; and it is beyond the power of the legislature to take this right from them in such a manner as attempted by the act of 1907, the terms of which have a manifest tendency to work injustice to the corporators.

The decree of the court below is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Brillinger v. Northern Central Railway Company, Appellant.

      Negligence — Railroads—Loss by fire — Sparks—Evidence.
    1. In an action against a railroad company to recover for loss by fire, from sparks, the case is for the jury, where there is testimony tending to show that a few minutes before the fire was discovered the defendant ran an engine on a siding within a few feet of plaintiff’s building and because of the engineer’s carelessness, sparks of a size too large to escape through a proper spark arrester were thrown upon the building, setting it on fire.

      Practice, C. P. — Appeals—Variance—Allegata and probata.

    2. After a trial on its merits a judgment will not be reversed because of a variance which was not questioned at the trial, and which did the defendant no harm and could have been cured by amendment if attention had been called to it.
    Argued May 17, 1910.
    Appeal, No. 6, Jan. T., 1910, by defendant, from judgment of C. P. York Co., Aug. T., 1908, No. 73, on verdict for plaintiffs in case of Horace Brillinger and Robert F. S.wartz, trading as Brillinger & Swartz, for their own use and the use of the Spring Garden Mutual Fire Insurance Company et al., v. Northern Central Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for damages resulting from a fire. Before Wanner, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned among others was refusal to give binding instructions for defendant.

      Richard E. Cochran, with him Smyser Williams, for appellant.

      Allen C. Wiest, with him J. W. Gilt, for appellees.

      July 1, 1910:
   Per Curiam,

This was an action to recover for the loss of merchandise destroyed by fire alleged to have been caused by sparks and cinders negligently permitted to escape from the smokestack of the defendant’s engine. The main contention in behalf of the appellant is that there was no adequate proof of negligence. There was testimony tending to show that a few minutes before the fire was discovered, the defendant ran an engine on a siding that was within a few feet of the plaintiff’s building and because of the careless manner in which it was managed by the engineer, sparks and cinders, unusual in size and quantity, were thrown out against the side and over the top of the building, and that sparks and hot cinders of the size thrown from the smokestack could not have passed through a spark arrester that was properly constructed and in proper condition. This testimony made out a case for the jury both as to the origin of the fire and the responsibility of the defendant therefor because of negligence in the operation and equipment of its engine: Byers v. B. & O. R. R. Co., 222 Pa. 547.

The objection that there was a variance between the pleadings and the evidence comes too late. The negligence alleged in the plaintiff’s statement was that the engine was operated so carelessly as to cause unusual and unnecessary quantities of fire, hot cinders, etc., to be thrown from the smokestack. No defect in the engine was averred except inferentially, but the question of variance was not raised at the trial by specific objection to testimony on that ground or by request for charge, and the defendant made the defense that its engine was equipped with a proper spark arrester. After a trial on the merits a judgment will not be reversed because of a variance which did the defendant no harm and could have been cured by amendment if attention had been called to it. We find no merit in any of the assignments.

The judgment is affirmed.


text:
    Streuber’s Appeal.

      Corporations — Sale of corporate property — Class bill — Intervening stockholder — Laches—Equity.
    A petition to intervene in a class bill by a minority stockholder to restrain a sale of corporate property will be dismissed where it appears that the petitioners had two months’ notice of the contemplated corporate action and waited two months after action was taken before filing petition to intervene or taking any other proceedings, legal, equitable or otherwise.
    Argued May 18, 1910.
    Appeal, No. 48, Jan. T., 1910, by Louis Streuber and R. A. Cartwright, from decree of C. P. Elk Co., April T., 1909, No. 1, refusing the petition of Louis Streuber and R. A. Cartwright to intervene as plaintiffs in the case of Fred Koehler et al. v. St. Mary’s Brewing Company et al.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for permission to intervene in a class bill of minority stockholders. Before Orvis, P. J., specially presiding.
    The original bill was filed February 26, 1909, by certain minority stockholders of the St. Mary’s Brewing Company against that company and ffm. Kaul et al. and majority stockholders to restrain the corporation from selling and conveying to the Elk County Brewing Company its property and franchises illegally for less than a fair value.
    On June 21, 1909, the petition of Louis Streuber and R. A. Cartwright to intervene as party plaintiffs was filed and dismissed by the court in the following opinion by Orvis, P. J., specially presiding:
    And now, to wit, November 6, 1909, petition read and considered, it appearing to the court that the petitioners had notice of the corporate action on February 27, 1909, as well as due notice of said intended action two months prior thereto, without resorting to any proceedings in law, equity or otherwise to prevent same, or had notice or should have had notice of the present bill having been filed and pending in the common pleas of Elk county, they are certainly guilty of not acting with promptness and have not shown reasons otherwise why their prayer should be granted. The prayer of the petitioners is therefore refused.
    July 1, 1910:

      Error assigned was decree dismissing petition.

      Alexander Simpson, Jr., with him Paul Benson, J. A. Gleason, Louis Rosenzweig, Gunnison, Rilling & Fish, and Fred II. Ely, for appellants,
    cited: Wheelock v. Church, 119 Cal. 477 (51 Pac. Repr. 841); Nicrosi v. Calera Land Co., 115 Ala. 429 (22 So. Repr. 147); Fenwick v. Phillips, 3 Metc. (Ky.) 87; Belmont Nail Co. v. Iron & Steel Co., 46 Fed. Repr. 336; Forbes v. R. R. Co., 2 Woods, 323; Campbell v. R. R. Co., 1 Woods, 368; Johnston v. Markle Paper Co., 153 Pa. 189.

      E. H. Baird, William A. Stone, Scandrett & Barnett and John G. Johnson, for appellees.
   Per Curiam,

This appeal is from the refusal of the court below to allow the appellants to intervene in the proceeding which is the subject of the appeal No. 49, to the present term. It is dismissed, for the reason given by the court below in denying the petition to intervene.


author: Mr. Justice Mestbezat,

text:
    Grothe’s Estate.

      Wills — Decedents’ estates — Intestacy—Cross limitations — Intention of testator — ■Presumption.
    1. The doctrine of an implied gift or cross limitations will be invoked in the absence of express language only when it can be determined from the meaning of the whole will that the testator intended a survivorship; and the presumptive intention to avoid an intestacy will not disclose such a purpose.
    2. Where by the terms of a will the widow, son and grandson of the testator are each bequeathed one-third of the income from a trust estate, the son and grandson for life and the widow during life or widowhood, with a provision that on the remarriage of the widow her one-third of the income shall go to the other two legatees, share and share .alike, the grandson is not entitled to the whole of the income for life, ■upon the death of the son and widow, by reason of the fact that the distribution of the corpus of the fund is withheld until the death of all three legatees, in the absence of language disclosing, either expressly or by clear implication, an intention to create implied gifts or cross limitations.
    3. In such a ease upon the death of the widow, her share of the income went to the son and grandson, share and share alike during the continuance of the trust; but as to the income of the one-third in favor of the son, there was an intestacy after the son’s death, and such income from the date of the death of the son to the end of the trust was payable to testator’s heirs at law.
    Argued May 18, 1910.
    Appeal, No. 125, Jan. T., 1910, by Frederick C. Grothe, from decree of O. C. York Co., refusing petition for order on the Security Title & Trust Company, in Estate of Frederick Grothe.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for an order upon trustee to pay over the whole of the income of a residuary bequest under a will. Before Wanner, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree refusing petition.

      July 1, 1910:

      Samuel Kurtz and F. B. Gerber, for appellant.
    Where a testator creates a trust and directs a certain disposition of the income until a certain time when the corpus of the estate is to be paid out, it is to be assumed that he does not intend to die intestate of any part of the income accruing up to the time of final payment of the principal to those entitled to gift over; and upon this assumption courts have implied cross limitations: Ashley v. Ashley, 6 Sim. 358; Turner v. Fowler, 10 Watts, 325; Pierce v. Hakes, 23 Pa. 231; Kerr v. Verner, 66 Pa. 326; Jones v. Cable, 114 Pa. 586; McCallum’s Est., 211 Pa. 205; Erwin’s Est., 5 Montg. 18; Morison’s Est., 5 Montg. 155; Lentz v. Lentz, 2 Phila. 117; Simpson v. Coon, 4 S. & R. 368.

      Frederick B. Gerber, for Security Title & Trust Company, trustee.

      James J. Logan, of Logan & Logan, for Ida S. Grothe, intervening appellee.
    An heir at law can be disinherited only be express devise, or a devise necessarily implied: Wilkinson v. Adams, 1 Vesey & Beames, 422; Bender v. Dietrick, 7 W. & S. 284; Hayden v. Stoughton, 22 Mass. 528; Schauber v. Jackson, 2 Wend. (N. Y.) 13; French v. McIlhenny, 2 Binn. 13; Stehman’s App., 45 Pa. 398; Corr’s Est., 202 Pa. 391; Abel v. Abel, 201 Pa. 543; Bradley’s Est., 17 Phila. 474; Brendlinger v. Brendlinger, 26 Pa. 131; France’s Est., 75 Pa. 220; Gray’s Est., 147 Pa. 67; Schmidth’s Est., Becker’s App., 183 Pa. 641; Espy’s Est., 207 Pa. 459; Shaner v. Wilson, 207 Pa. 550; DeSilver’s Est., 142 Pa. 74; Roney’s Est., 227 Pa. 127; Kimmel’s Est., 226 Pa. 47.
   Opinion by

Mr. Justice Mestbezat,

In default of any issue of himself and his wife, Lilly Grothe, surviving him, the testator bequeathed the interest accruing upon a certain trust fund as follows: “I order and direct the Trustee of my estate to pay one-third of the interest annually to my beloved wife Lilly Grothe during her natural life or so long as she remains my widow; pay one-third of the interest annually to my son Frederick W. Grothe during his natural life, and pay the other one-third interest annually to my grandson Frederick Grothe during his natural life, should my wife Lilly Grothe marry again, then in' that event, the one-third interest willed and bequeathed to her shall cease at her marriage and the interest received by her shall be„. paid to my son Frederick W. Grothe and my grandson Frederick Grothe share'and share alike.” On the death or remarriage of his wife and the death of his son, Frederick W. Grothe, and of his grandson, Frederick Grothe, the corpus of the trust fund was bequeathed to the children of his grandson or their issue, and in default thereof, to testator’s next and nearest of kin.

The testator died February 4, 1894, and left to survive him a widow, Lilly Grothe, who died April 4, 1901, without having remarried, intestate and without issue, and a son, Frederick W. Grothe, by a former wife, who died January 10, 1909, testate, leaving to survive him a widow, Ida S. Grothe, and five children, one of whom was Frederick C. Grothe, the appellant. The last named is the grandson referred to by the testator in his will.

After the death of the widow, on petition of Frederick W. Grothe, the son, the orphans’ court of York county directed the trustee to pay to him one-half and to Frederick C. Grothe, the grandson, the other half of the interest on the trust fund, then accumulated, and ordered and directed that the income and rents thereafter received by the trustee should be equally divided between the son and the grandson.

Frederick W. Grothe, the son, died on January 10, 1909, and since that date the interest on the trust fund has accumulated to the amount of $2,658.73, which is now in the hands of the trustee for distribution. Frederick C. Grothe, the grandson, presented his petition to the orphans’ court of York county claiming the whole of the income then in the hands of the trustee, and the income that should thereafter accrue on the trust estate during the petitioner’s natural life, on the ground that as the last surviving beneficiary of the income from the trust estate, he is entitled to the share of the others, by virtue of an implied gift or cross limitation in his favor, under the provisions of his grandfather’s will.

The orphans’ court held that the testator died intestate as to the interest on the trust fund bequeathed to Frederick W. Grothe for life; that as to the one-half of the widow’s third of the interest, which, after her death (under the court’s former construction of the will) went to Frederick W. Grothe, the bequest was absolute and carried said interest to the termination of the trust and his executrix was entitled to receive the same; and that the petitioner, the grandson, was entitled to receive from the trustee, the one-half of the interest accrued, and thereafter accruing on the trust fund during his life.

It may be suggested that the claim of the appellee to part of the fund not awarded to her by the court below cannot be considered on this appeal, the only questions for consideration here being those raised by Frederick C. Grothe, the appellant.

It will be observed that the widow, the son, and the grandson were each bequeathed one-third of the income from the trust estate, the son and grandson during life, and the widow during life or widowhood. It was provided, however, that on the remarriage of the widow her one-third of the interest should go to the other two legatees, share and share alike. It is conceded that the grandson is entitled to one-third of the income for life, but the widow and son are now dead, and the question arises: who is entitled to take the other two-thirds of the income until the distribution of the corpus of the fund— at the death of the grandson. As we have seen, the court below awarded the one-half of the widow’s third, in pursuance of a former order of the court unappealed from, to the son’s executrix. This leaves the one-third, bequeathed to the son for life, to be determined on this appeal.

It is strenuously contended that the grandson should take this one-third of the income, after the son’s life interest therein, under the doctrine of an implied gift or cross limitation, and that to hold otherwise will' result in a partial intestacy. It is true that the reasonable presumption is that when the will was executed the testator did not intend to die intestate as to any part of his property, and that neither the precise language of the instrument nor the form of expression but the meaning to be gathered from the whole will determines whether survivorship was intended by the testator. The survivor will take the estate if from the whole will it can be reasonably inferred that such was the intention of the testator. It is his intention, ascertained from his will, which must govern in every case and when that is ascertained it is the duty of the court to carry it out. While it is a presumption that the testator intended to dispose of his whole estate, there is a like presumption of equal force that the heir is never to be disinherited except by plain words or necessary implication. These presumptions, we have frequently said, are of like force and effect, and in applying one, we must not overlook the other. Neither presumption, however, can be permitted to defeat the intention of the testator which is expressed in apt words or appears by clear implication. Our function is to construe, not to make, a will for the testator.

There is no general residuary clause in the will, nor does the testator expressly declare his intention to dispose of his entire estate. The gift to each of the three beneficiaries is for life, except that given to the widow which is for life or during widowhood. There are no words of survivorship, and there is no disposition of the shares given to the wife and to the son after their respective deaths and during the remainder of the life of the trust. It is provided, however, that if the widow marries again the interest bequeathed to her shall then cease and thereafter be divided between the son and the grandson in equal shares. The corpus of the trust fund is to be distributed at the death of the grandson. There is, therefore, no ground for the contention of the grandson to be found in the express language of the will that, since the death of the widow and son, he is entitled to the whole income during the life of the trust. His right to the income rests wholly on the doctrine of an implied gift or cross limitation. But this must arise from the language of the will, and unless there is a clear implication that such limitation was intended by the testator, the fund cannot be taken from the heir and disposed of through another channel of distribution. The gift of the income is not to a class but to the three beneficiaries nominatim, neither is it a joint tenancy with the right of survivorship. The plain language of the will vested the income in the three individuals respectively until the death of the son and the grandson and the death or remarriage of the widow. Whether intentionally or otherwise, the testator did not dispose of the income after the life estate given to the three individuals, and, therefore, there is no reason to suppose that he intended that the survivor should take the whole income until the distribution of the corpus of the trust fund, unless the presumptive intention to avoid an intestacy should disclose such purpose. This, however, is not a sufficient reason for implying a gift or a cross limitation. If it was, no intestacy would ever occur. In view of the care with which he disposed of his estate, and especially in providing against the contingency of his widow’s remarriage, and the difference between the disposition of the widow’s share on her remarriage and in the event of her death, it is not at all probable that the testator overlooked the fact that his widow and son would die and thereby create an intestacy as to the income on the termination of the life estate. It is more probable that he was conscious of the omission to dispose of the residue of the income, and knew that his heirs would inherit the part of his estate undisposed of in the will. The simple fact that the principal is not distributable until the death of the last of the three legatees is not of itself sufficient to create an implied gift to the survivor. As we have said, it is more than likely he intended that the heir should take the undisposed of portion of the income; but at all events, if it was an oversight, the courts have no authority to insert a provision disposing of such income under the assumption that it was the intention of the testator. It is only when the language of the will expressly or by clear implication discloses the intention of the testator that the courts may carry it out. It will not do for the courts to undertake to guess at the intention of a testator and declare that to be his will. If he sees fit for any reason not to dispose of any part of his estate, or such is the result of ignorance or oversight, the courts cannot supply the gap or hiatus and reconstruct the will. To do so would be a perversion Of the functions of the court, and deprive a testator of the right to dispose of his property.

We see nothing in the will which leads to the conclusion that the testator meant to dispose of the income from the trust estate otherwise than he declared in the apt and proper words used by him in the bequest, or that he intended that the survivor of the three legatees should take, during the latter’s life, the undisposed of portions of the two predeceased legatees.

The decree of the orphans’ court is affirmed.


text:
    Dehoff, Appellant, v. Northern Central Railway Company.

      Negligence — Railroads—Contributory negligence — Crossings—“¡Stop, look and listen.”

    The duty of care which the law imposes on a driver at a railroad crossing is not fulfilled by stopping at a point 100 feet from the track, where he cannot see on account of an embankment and a building, when at a point thirty feet from the track there is a clear view of 500 feet and ten feet from it a clear view of 1,000 feet.
    Argued May 18, 1910.
    Appeal, No. 134, Jan. T., 1910, by plaintiff, from judgment of C. P. York Co., Jan. T., 1910, No. 36, on verdict for defendant in case of John W. Dehoff v. The Northern Central Railway Company. Before Fell, C. J.,
    July 1, 1910:
    Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wanner, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in giving binding instructions for defendant.

      E. Dean Ziegler, with him Jacob E, Weaver and Edward D. Ziegler, for appellant.

      Richard E. Cochran and Smyser Williams, for appellee, were not heard.
   Per Curiam,

A verdict was directed for the defendant under the following state of facts as to which there was no dispute: The plaintiff was riding in a carriage and stopped, looked and listened when 105 feet from the crossing of the defendant’s road. At this place he could not see a train approaching the crossing because of a building on one side of the road on which he was driving and an embankment on the other side. He drove on at a slow trot, looking as he advanced, and his horse was struck by an engine on the nearest main track. Thirty feet from the crossing he had a clear view in the direction from which the engine came of over 500 feet, and ten feet from it a clear view of 1,000 feet. The duty of care which the law imposes on every driver at a railroad crossing is not fulfilled by stopping where he cannot see. It is his duty to stop where he can see. The plaintiff having failed to do this was properly adjudged to have been negligent.-

The judgment is-affirmed.


text:
    York Haven Water & Power Company v. American Phosphorus Company, Appellant.

      Contracts — Ambiguity—Evidence—Parol evidence — Fraud, accident, mistake.

    1. In the absence of fraud or mistake, clearly proven, parol evidence cannot be introduced to vary, reform or in any way affect a written agreement.
    2. Where a written contract in plain and explicit terms provides for monthly payments for electric power furnished, and that the amount of each monthly payment shall consist of a charge for power and in addition thereto a charge for service, when not used, there is no ambiguity as to payments for power justifying the admission of evidence of letters and negotiations preceding the written contract to explain an alleged ambiguity as to what rates and deductions are to be made under a provision of the contract reading: “The Power Company will not make any rebates or deductions in any of its bills for less than 250 H. P. as a minimum power to be used ten months in each year.”
    Argued May 18, 1910.
    Appeal, No. 141, Jan. T., 1910, by defendant, from judgment of C. P. York Co., Aug. T., 1909, No. 120, on verdict for plaintiff in case of York Haven Water & Power Company v. American Phosphorus Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit for furnishing electric power. Verdict and judgment for plaintiff for $2,829.85.
    Bittenger, P. J., in refusing a new trial handed down the following opinion:
    The motion for a new trial is based on the rejection by the court of defendant’s offers of evidence to explain ambiguity alleged to exist in the contract between the parties, for electric power furnished by the plaintiff to the defendant, at its manufactory near the borough of York Haven, in this county; and upon which contract this suit is founded. The evidence offered was letters dated and written and negotiations before the execution of this contract.
    The material section of the said agreement in evidence is the third, as follows:
    “Third. Party of the second part shall pay for such electrical power during the supply thereof, monthly, on the tenth day of each month in each year. Such payment shall be made at the office of the Power Company in the City of New York, or such other place as the Power Company may direct, and the amount of each monthly payment shall consist of a charge for power and in addition thereto, when not used a charge for service. These charges shall be determined as follows:
    “Charge for service. — For each kilowatt of the maximum kilowatt capacity which the Power Company herein agrees to install and to keep available for the use of the Phosphorus Company, the Phosphorus Company shall pay one dollar per month for kilowatt capacity installed as a minimum charge, whether current is used or not. It being distinctly understood that the Power Company will not make any rebates or deductions in any of its bills for less than 250 H. P. as a minimum power to be used ten months in each year during the period of this contract, and during the period of 60 days of shut down, the Phosphorus Company agrees to pay 250 dollars per month during such stoppage or shut down. That is to say the Phosphorus Company agrees to pay for 250 H. P. ten months per year whether current is used or not, 24 hours per day, 7 days per week, at full rate of $35.00 per year per horse power, and if plant is shut down for full sixty days $250.00 as a minimum for the two remaining months of the year.
    “Charge for power. — For electrical units (K. W. Hours or H. P. Hours) actually used by the party of the second part, shall be based as recorded by the standard kilowatt hour meters installed by the Power Company, payment shall be made for this contract at the rate of $35.00 per year per horse power; 746 watts equal one horse power.”
    The contention of the defendant’s counsel that the provision in this section as follows: “It being distinctly understood that the Power Company will not make any rebates or deductions in any of its bills for less- than 250 H. P. as a minimum power to be used ten months in each year during the period of this contract, and during the period of 60 days of shut down, the Phosphorus Company agrees to pay 250 dollars per month during such stoppages or shut downs. That is to say the Phosphorus Company agrees to pay for 250 H. P. ten months per year whether current is used or not, 24 hours per day, 7 days per week, at full rate of $35.00 per year per horse power, and if plant is shut down for full sixty days $250 as a minimum for the remaining months of the year,” provides for an adjustment at the end of the year and the return to the defendant of all sums paid on monthly payments, made during the year, in excess of the minimum rate of charge expressed in the agreement. Because the agreement in the section referred to, provides that “the Power Company will not make any rebates or deductions in any of its bills for less than 250 H. P. as a minimum power to be used ten months in each year during the period of this contract, and during the period of 60 days of shut down the Phosphorus Company agrees to pay 250 dollars per month during such stoppage or shut downs,” it is strenuously argued that the Power Company has bound itself in terms, to make rebates and deductions; and that not having provided what rebates and deductions are to be made or when, there is an ambiguity, which the defendant has a right to explain, by the letters and conversations offered, to be an adjustment and repayment to the defendant at the end of each year of all moneys paid the plaintiff for power in excess of the minimum rates.
    The contract plainly provides for monthly payment by the defendant' to the plaintiff for power- furnished by the plaintiff to defendant, on the tenth day of each month, and the amount of each monthly payment shall consist of a charge for power, and in addition thereto, when not used, a charge for service. It then provides how the said charge for power shall be determined.
    The agreement, then, in plain and explicit terms, expresses the intention of the parties as to monthly settlement and payment. It nowhere provides for any rebates or deductions, or by any language raises any ambiguity in regard to the monthly payments for the power used for such month.
    There is no ambiguity to explain. We could discover none at the trial nor can we discover any now. Instead of the testimony explaining an ambiguity in the agreement its effect could only have been to add and vary the written agreement, entered into by the parties.
    It was not competent to do this. The parties are held to have merged previous conversations and negotiations in their written agreement, and in the absence, of fraud or mistake, clearly proven, parol evidence cannot be introduced to vary, reform, or in any way effect their written agreement. This is too well established to require the citation of any of the numerous decisions to this effect by the Supreme and Superior Courts of the commonwealth.
    After careful consideration we have found no error in the disposition of the case, requiring a new trial.
    And now, April 6, 1910, the motion and rule for a new trial are overruled • and discharged at the costs of the defendant.

      Errors assigned were various rulings on evidence and instructions.

      Henry C. Niles, with him Charles H. Howson and M. S. Niles, for appellant.

      V. K. Keesey, with him J. S. Black, for appellee.

      July 1, 1910:
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas, discharging the rule for a new trial.


text:
    Page v. Lytle, Appellant.

      Appeals — Assignments of error — Equity practice.

    1. On appeal to the Supreme or Superior Court in an equity suit such matters only as have been excepted to and finally passed on by the court are assignable in error.

      Appraisement — Interested appraiser — Waiver.

      2. Where one of the parties to an agreement for the appointment of appraisers to value lands knew at the time of the appointment of an appraiser that he was the agent of the other parties and understood fully his relation to them and acquiesced in his appointment, he must be held to have waived any objection to the appointment.
    Argued May 18, 1910.
    Appeal, No. 87, Jan. T., 1910, by defendant, from decree of C. P. Blair Co., Equity Docket D, No. 639, directing defendant to accept deed and pay consideration in case of Fannie L. Page, Florence L. Ormsby and Caroline Ormsby v. Edward H. Lytle.
    Before Fell, C. J., Brown, •Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    . Bill for specific performance of agreement for the division of land. Before Bell, P. J.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were in findings and refusals to find and decree of the court.

      J. D. Hicks and A. V. Dively, with them D. J. Neff, for appellant.

      H. A. Davis, for appellee.

      July 1, 1910:
   Per Curiam,

The bill in this case was for the specific performance of an agreement between the plaintiffs and the defendant for the division of lands devised to them. The first assignment of error is the only one that is supported by the record. The other assignments relate to matters not excepted to in the common pleas and they cannot be considered. The rules of equity practice provide for the filing of exceptions to a decree nisi that shall cover all objections to rulings on evidence, findings of fact or law and to the decree of the court. Rule 67 is: “Upon appeal to the Supreme or Superior Court such matters only as have been so excepted to and finally passed on by the court, shall be assignable for error.” The rules are mandatory and their violation cannot be overlooked: Beatty v. Harris, 205 Pa. 377.

The first assignment relates to the refusal of the court to find that one of the appraisers appointed by agreement of the parties to value the lands was incompetent to act because he represented the plaintiff's as agent and attorney in fact. The court in passing on the exception on which this assignment is based found as a fact that the defendant at the time of the appointment of the appraiser referred to, knew that he was the agent of the plaintiffs and understood fully his relation to them and acquiesced in his appointment. The defendant having acted with knowledge of facts that might tend to influence the judgment of this appraiser must be held to have waived any objection to the appointment.

The decree is affirmed at the cost of the appellant.


text:
    Newman v. Shreve, Appellant.

      Equity — Jurisdiction over parties■ — Equitable relief.

    1. Where a court has jurisdiction of the person of a defendant it may render any appropriate decree acting directly upon the person, although the subject-matter may be without the jurisdiction.
    2. When the court has jurisdiction over the subject-matter or the person of a principal defendant, the rule prevailing generally in judicial proceedings applies in suits in equity.
    3. When a bill for an accounting of the proceeds of a sale of real estate in New Jersey is filed against five defendants, two of whom are treated as principals both in the averments of the bill and in the prayers for relief, one as an active trustee and the other as trustee ex maleficio, and the active trustee is properly served as a resident of the jurisdiction and the alleged trustee ex maleficio, a resident of New Jersey, is served as authorized and directed by the act of 1859, and causes a general appearance to be entered for him and in his answer sets up a general defense on the merits, while the other three defendants voluntarily appear, accept service and file answers, and all of the defendants are in some way interested in the property sold, or in the proceeds arising from the sale of it, or as mortgagor or mortgagee, or otherwise, the parties are all within the jurisdiction of the court for every purpose of the case and should be so treated, and it is error for the court to refuse to consider important matters bearing upon the relations and equities existing between the active trustee and the other defendants, and dismiss the bill as to all except the active trustee on the ground that the others are nonresidents and not amenable to the processes of the court.
    4. While the fact that a trustee was misled, or imposed upon, or misinformed, or that by reason of impaired health and bodily infirmities he failed to exercise the careful diligence he otherwise would have done may not excuse him for failure to secure the largest price possible for the sale of the trust property, these things do appeal to the conscience of a chancellor in determining not only his legal liar bility but the equities that may exist between all the parties connected with the transaction.
    Argued May 18, 1910.
    Appeal, No. 154, Jan. T., 1910, by Benjamin D. Shreve, from decree of C. P. Chester Co., in Equity, No. 513, sustaining bill against Benjamin D. Shreve in case of John S. Newman, Executor and Trustee of William Keinath, deceased, v. Benjamin D. Shreve, Isaac A. Braddock, Joseph Taylor, St. Albans Realty Company, and the Sea Haven Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Reversed.
    Bill for an accounting, etc. Before Butler, J.
    The findings of fact of the lower court were as follows:
    On August 2, 1881, Edward P. Carpenter executed and delivered to Henry W. Town a bond and mortgage to secure the payment of $3,000 with interest, within two years, which mortgage covered a tract of land on the ocean, situate in Little Egg Harbor township, Burlington county (now the township of Long Beach, county of Ocean), in the state of New Jersey. This mortgage was duly recorded. Default having been made in payment, foreclosure proceedings were instituted, a decree was made and an execution was directed to issue, when on June 17, 1889, the bond, mortgage, decree and execution process were assigned to Wm. Keinath, the plaintiff decedent. This mortgage was a first lien on the premises it described, and in a subsequent foreclosure proceeding on a second mortgage covering the same, and additional premises, it was duly determined that $5,188.58, with interest from September 12, 1894, were owing on this first mortgage.
    Subsequent to the execution of the first mortgage, before recited, title to the land bound by it, and other contiguous territory, became vested in the Sea Haven Improvement Company, a New Jersey corporation, and this company executed to Benj. D. Shreve, one of the defendants, and Cyrus Borgner, as trustee, a mortgage upon said lands to secure an issue of bonds of $100 each, aggregating $20,000. Of these bonds Wm. Keinath was the owner and holder of fourteen, and Isaac A. Braddock, another defendant, was the owner and holder of twenty-six which on January 3, 1891, he assigned and delivered to J. E. Roberts as collateral security for money loaned. We find that the legal title to those bonds has remained in Braddock, that he owns them subject only to their pledge to Roberts as collateral for his claim against Braddock. Braddock intimates that on a settlement it might be found that he is no longer indebted to Roberts, and might by suit obtain the bonds.
    In so far as we can discover from the evidence, the second mortgage covered the southern portion of Long Beach, a tract about four miles in length, containing, roughly speaking, from 800 to 900 acres, and the first mortgage was confined to about one-half of this tract.
    Default having been made in payments due on bonds secured by the second mortgage, foreclosure proceedings were instituted on behalf of bondholders, a decree of sale was entered and David J. Pancoast, special master in chancery, was authorized to make sale of the mortgaged premises.
    Subsequent to the execution of the mortgage referred to, the second mortgage, two judgments aggregating about $3,700, were recovered against the Sea Haven Improvement Company and by their owner, Levis, were later on assigned to Isaac Á. Braddock.
    On May 16,1895, Wm. Keinath, the holder and owner of the first mortgage hen, together with holders of eighty-five bonds secured by the second mortgage lien, entered into an agreement with Benj. D. Shreve, authorizing him to purchase the lands at the foreclosure sale.
    This agreement was executed by Keinath as the owner of the first mortgage lien and of fourteen bonds secured by the second mortgage, and was executed by Isaac A. Braddock as the owner of twenty-six bonds.
    The agreement provided that in the event of Shreve acquiring title as contemplated, he should sell the same for such sum as he might deem it for the best interest of the parties, deduct from the purchase money the costs and expenses of the trust, including commissions, the costs and expenses of the foreclosure, pay the Wm. Keinath first mortgage, with interest to date of settlement, and the balance, if any, to the holders of the bonds, pro rata.
    In due course, in the manner contemplated, and subject to the agreement just recited, Shreve on August 1, 1895, was invested with title to all the lands in which Keinath was interested as holder of the first mortgage, and in which Shreve and Borgner, as trustees, were interested under the second mortgage. Whether the Levis judgments covered some accretions at the southern end of Long Branch, not included in the land described in the second mortgage as is claimed by the defendants to be a fact, and denied by the plaintiff, we cannot with certainty decide.
    The description in the second mortgage is by courses and distances, and no call for the water appears. If, however, the property as described, in fact reached the water, left no intervening land, the accretions belonged to the title covered by the mortgage, though there is no express call for the water. Whether where the accretions in question are located, the mortgage title as a fact reached the water, was not shown.
    However this may be, we have no hesitation in stating that to us the evidence is very convincing that no one had a thought that these judgments were a lien on anything outside of the mortgaged property, had any substantial value. Apparently. Levis owned them when the agreement was made under which Shreve was to take title and protect all interests. No claim for consideration on account of these judgments was then made. Whether Braddock gave anything substantial for them does not appear, but certain it is, in so far as the evidence discloses, he never made any claim to anyone that the judgments were substantially valuable, that they covered land outside of the mortgage, and were desirable as a means of securing title thereto, until at the hearing of this case he ascribed such virtue to these judgments as a justification for having diverted to himself more than half of the consideration named in a contract of sale of the title held by Shreve. Shreve certainly never understood that there was any pretense on Braddock’s part that through his judgments he controlled valuable, independent territory, shutting Shreve’s title off from the water. Shreve was constantly in communication with Braddock relative to the seashore property, had full opportunity to know what his interests were there, and according to his testimony, the only property or interests .that Braddock had, or spoke of having, were so-called hotel property and lots, wholly apart of any of the real estate here involved. After Shreve acquired title pursuant to the agreement referred to, he made earnest and continuous efforts to sell the property, urging Braddock and others to assist him. He incurred expenses in endeavoring to make sale, paid taxes, etc., and no revenues arose from the property. Braddock viewed himself as an agent of Shreve to make sale of the property, he so testified: “I considered myself his agent to sell his interests in the property. I have a number of letters to that effect.” “Q. Had Mr. Shreve authorized you at any time to sell his property as his agent? A. Oh, a number of times, yes; over ten years he had authorized me to sell it. Q. Did you tell him you sold it as his agent? A. No, I think not. Q. And for 133,000? A. I was buying the property then, the moment he signed that agreement he sold it to me, I was no longer his agent. I was acting for myself.” Having recently received a letter from Shreve; under date April 24, 1906, authorizing him to make a sale upon specified terms, and to secure the execution of an agreement, late in April of 1906, Braddock. came in contact with Joseph Taylor, one of the defendants, and representing himself as Shreve’s agent sought to have him purchase. Braddock, Taylor, and his counsel, Darnell, visited the property, looked it over, and on April 30, 1906, met at Darnell’s office, the contract of sale was written, was executed by Braddock as agent from Shreve, by Taylor as purchaser and was also signed by Braddock individually, he having stipulated in the contract, that he would remove or assign any judgment or incumbrance he might have against the property. As already stated, ■ we are unable to determine positively whether Braddock’s judgments had any value, but we are clear that his conduct was wholly inconsistent with their possessing substantial value, with their being liens on property outside of that held by Shreve; and we are satisfied that there was no thought on anyone’s part that through these judgments Taylor was to acquire any land. Braddock does not claim that either when viewing the property or later when the agreement was made, he suggested anything of this kind; he, as agent for Shreve, is the only party vendor named, Shreve’s title as derived from the special master in chancery, is the only thing sold, and the $33,000 purchase money is an entire, indivisible consideration for that title. Even if the judgments had value, they figured in the agreement simply because Darnell viewed them as a cloud on the property Shreve was selling, and Braddock was willing to give them up in order to effectuate the sale of the Shreve title. Braddock was vitally interested in the sale being consummated, not only on account of commissions which he could well have demanded, but also as the owner of bonds secured by the second mortgage, and of certain lots, etc., that might become marketable through the sale of the Shreve land. In no aspect of the case could Braddock be viewed as entitled to any part of the $33,000 consideration on account of his judgments; if possible, his claim to part of the $33,000 is made more preposterous by the magnitude of the share claimed. Though according to his own contention his judgments covered only about 150 acres and Shreve’s title covered some 800, part of which, at least, extended to the water, he sought to justify the diversion to himself of more than half of the $33,000.
    The agreement of sale provided for the payment of $1.00 down, $993 on May 5, following, $5,000 cash and a mortgage for $27,000 upon the execution and delivery of the deed, conveyance to be made within ninety days from the date of the agreement.
    Shreve had no knowledge of Taylor as a purchaser, before or at the time of the execution of the contract of April 30, 1906.

      On May 5, 1906, Taylor, through his counsel Darnell, paid the $1,000 provided for in the contract, by two checks, one to the order of Shreve for $750, and the other to the order of Isaac A. Braddock for $250. The Shreve check was certified by the bank on which it‘ was drawn, on May 7,1906, and was delivered by Braddock to Shreve, on that day, on account of a contract then entered into between them, whereby Shreve agreed to convey the lands held by him to Braddock, on or before July 30, 1906, for $15,000, of which sum $750 was to be paid in cash on the execution of the agreement, $4,250 in cash on July 30, 1906, together with a purchase money bond and mortgage for the balance. This was the first and only contract of sale between Shreve and Braddock, disclosed by the evidence. While Braddock does in answering to leading questions of his counsel, say that he contracted to buy the property before he made, as Shreve’s agent, the sale to Taylor, such is clearly not the fact. He testifies positively that his alleged prior contract of purchase is to be found in certain letters of Shreve written to him, two in January and one on April 24, 1906. On inspection it is seen that none of these letters exhibit a contract, and the last one, April 24, 1906, written only five days before he as agent for Shreve, contracted to sell to Taylor, wholly negatives the existence of a contract of sale to Braddock or to anyone else, for it urges Braddock to find a purchaser and to have him sign a contract. Indeed, Braddock testifies that pursuant to this letter of April 24, 1906, he became active and consummated the sale to Taylor a few days later. Moreover, Braddock’s testimony relative to what he told Shreve, concerning the Taylor contract, on May 7, 1906, when he secured an agreement of sale to himself at $15,000, contains an admission that then for the first time he became a purchaser, that until then he had been Shreve’s agent to make a sale. “Q. Did you tell him you sold it as his agent? A. No, I think not. Q. And for $33,000? A. I was buying the property then, the moment he signed that agreement, he sold it to me, and I was no longer his agent. I was acting for myself. Q. Before he signed it, you were representing yourself as his agent? A. I was his agent to sell his property. Q. Before you got home to execute an agreement in your favor did you tell him you had already sold it for him as his agent, and received down money, for $33,000? A. I do not remember telling him anything of the kind, I do not think I did.”
    We are not prepared to find that at this time Braddock told Shreve of the existing contract of sale with Taylor. He says he did, but in this Shreve contradicts him, and it is improbable that Braddock would so inform him at a time when he was seeking a contract of sale to himself at less than half the price secured by the Taylor contract.
    After the execution of the Taylor contract, of April 30, 1906, Darnell with a view to its performance, prepared the deed for execution by Shreve to Taylor, and the $27,000 mortgage, provided for in the contract, to be given by Taylor to Shreve, and on July 30, 1906, Taylor, Darnell, Shreve and Braddock met by appointment at Shreve’s office in Camden, N. J. At this meeting we are constrained to find from the strong preponderance of the evidence, that it was clearly and distinctly announced to Shreve that Taylor had contracted with him through Braddock, acting as his agent, to buy the property held by him, Shreve, and had agreed to pay therefor $33,000, that a mortgage in Shreve’s favor for $27,000 as provided by the contract, would forthwith be executed by Taylor, and that Taylor was prepared to pay the full consideration of $33,000. Darnell testifies to all of this and Taylor to part of it, and starting out with the uncontroverted facts that Taylor had a contract for the purchase of the property which he was very anxious to have carried out, that he and Darnell knew no one as the vendor but Shreve, and in going to his office to meet him, could have been actuated by no other thought than that they must there deal with him, how can it be doubted that, as they say, the $27,000 mortgage, and the deed, were presented to Shreve, and that he did not receive $33,000 for the property simply because he inexcusably failed for some reason to appreciate his opportunity, turned it off without any consideration, and insisted on putting through his $15,000 contract with Braddock.
    Darnell and Taylor testify that when it became apparent that Shreve would not accept the $27,000 mortgage, said it was drawn for too large a sum, and refused to carry out the $33,000 contract, Taylor in the presence and hearing of Shreve, said that he had contracted to pay $33,000 for the property and owed it to some one. The fact that Taylor did substantially pay this sum, leaves little room for doubting that he was fully determined to pay it, and made the fact known as he and Darnell testify. Braddock testifies that he took no part in the discussion, heard nothing of what transpired, that he left all to Shreve and Darnell, that Shreve told him to execute an assignment to Taylor, of his, Braddock’s, $15,0.00 contract. Darnell testifies that when the $27,000 mortgage and the deed were handed to Shreve, and he refused to accept the mortgage and execute the deed because, as he stated, the amount of the mortgage was too large, he, Darnell, was much surprised, and produced the $33,000 contract to Shreve who, thereupon, refused to consider it and insisted on consummating his $15,000 contract with Braddock.
    Apparently Braddock made no move toward preventing the Taylor contract being carried out; certainly Taylor was ready and anxious for its consummation; clearly on arriving at Shreve’s office, Taylor and Darnell looked to him alone as the other party to their contract, and the conclusion is irresistible that they vigorously sought to carry it out with him, and that he for some wholly inexcusable reason prevented its consummation. Shrevedenies that the $33,000 contract with Taylor, was brought to his attention, and in view of his reputation as a man' of intelligence and integrity his denial is entitled to earnest consideration.
    On the other hand, however, the testimony of Taylor. and Darnell is convincing, not only because they stand before us as entirely reputable people, with no apparent motive to pervert the truth, but also because the situation as it existed, made notice to Shreve of the $33,000 contract, substantially in the manner they say he received notice, inevitable. As weakening the force of Shreve’s denial and indicating that his mind was so wholly engrossed by his $15,000 contract with Braddock that he was unable to contemplate or consider any other contract or any other figure than $15,000 is his testimony on page 33 of the transcript of his testimony: “Q. Give the date? A. Thirtieth of July, 1906. Q. Was the first you met Mr. Taylor? A. That was the first time I met Mr. Taylor. Prior to that the deed which was to be drawn up, had been submitted to me. I think I had it out here. I sent that back again. I went there fully prepared to carry out the whole transaction. When I got there, I looked over the deed, and it was all right. The deed was for the consideration of $15,000, and it was all perfectly right in every respect as far as I observe.” Clearly he must be mistaken in his statement that on July 30 at his office in Camden, he looked over the deed and saw that it was for the consideration of $15,000. Darnell, who drew this deed, prepared it with a view to consummating the $33,000 contract of sale to Taylor. There is no reason to believe that he had any knowledge of a $15,000 sale, and, therefore, obviously the deed did not state a consideration of $15,000 as Shreve testifies. All of the proof is to the effect that the deed presented to Shreve on July 30, 1906, is the one that was used by him in making title to Taylor, and the consideration therein stated is not $15,000, but is “one dollar and other valuable considerations.” Shreve is positive that he executed the deed on July 30, and not on August 2, as indicated by the deed, because he is sure that he was not in Camden on the latter date. It is quite clear, however, that the deed was not executed in Camden, but out where Shreve was living in Pennsylvania.

      On August 2, 1906, the date to which adjournment was had on July 30, 1906, the deed executed by Shreve and naming the consideration stated, was delivered to Taylor, he executing and delivering to Shreve, a purchase money mortgage for $11,000 and paying him $3,000 in cash. Certain cash payments were made to Braddock in addition to money he had already received, and on August 12, 1906, a mortgage was executed and delivered to him by Taylor for $12,052.78 and Taylor fully met and satisfied his obligation to pay $33,000 consideration, in cash paid, and the two mortgages given to Shreve and Braddock respectively. Subsequently Taylor conveyed the property to the Sea Haven Improvement Company, which company made conveyance to the St. Albans Realty Company, the latter executing to the Sea Haven Improvement Company a mortgage for $95,000 to secure a part of the purchase money. To make this mortgage a first lien, Braddock satisfied his mortgage given by Taylor, upon which $2,500 were still due, and to secure the payment thereof, took an assignment of the $95,000 mortgage as collateral.
    Wm. Keinath died May 14, 1898, in the city of Philadelphia, testate, and letters testamentary were duly granted to John S. Newman, the plaintiff, on May 20, 1898. On March 18, 1908, the plaintiff met Shreve at his home at Devon in this county, for the purpose of effecting a settlement respecting the proceeds of the sale of the property. At that time the plaintiff did not know the price paid by Taylor, but understood that the land had been properly disposed of for $15,000. He had no knowledge of the sale to Taylor for $33,000 until early in 1909, when the information was incidentally given him by Darnell. After deducting costs, expenses, fees, taxes, etc., from the $15,000 received, a balance of $3,029.69 remained, which Shreve paid to the plaintiff, there being due at the time, March 18, 1908, to the Keinath estate, $5,188.58, with interest from September 12, 1896, on the first mortgage and principal and interest on fourteen $100 bonds secured by the second mortgage.

      The decree of the court was as follows:
    “The bill is dismissed as to all of the defendants excepting Benjamin D. Shreve. He having received and accounted for the sum of $15,000, purchase money, is directed to account to the parties in interest for the further sum of $18,000, as if he had received $33,000 for the trust estate confided to him.”
    The court, on exceptions, subsequently modified its decree which reads as follows: “The bill is dismissed as to all of the defendants excepting Benjamin D. Shreve. He having received and accounted for the sum of $15,000 purchase money, is directed to account to the plaintiff for the further sum of $18,000, as if he had received $33,000 for the trust estate confided to his care, but in the event that the balance in his hands on a proper accounting is in excess of the amount due plaintiff on his mortgage and bonds, he shall be required to pay over only an amount sufficient to cover the sum due the plaintiff.”

      Error assigned was the decree of the court.

      John O. Johnson, with him Wm. M. Hayes, Thomas E. French and J. Carroll Hayes, for appellant.
    The burden is on the plaintiff to prove the authority of an agent on whose act he relies to charge the principal: American Car, etc., Co. v. Water Co., 221 Pa. 529.
    Trustees are liable to a surcharge only where they are guilty of fraud, or supine negligence equivalent to fraud: Springer’s Est., 51 Pa. 342; Semple’s Est., 189 Pa. 385; Pleasonton’s App., 99 Pa. 362; Waddell’s Est., 196 Pa. 294; Greenwood’s App., 92 Pa. 181; Bartol’s Est., 182 Pa. 407.

      J. Frank E. Hause, with him William E. McCall, Jr., for appellee.
    The decree of the court was fully sustained by the evidence and should be affirmed: Byers v. Byers, 208 Pa. 23; Snyder v. Smyth, 224 Pa. 36; Luther v. Luther, 226 Pa. 144; Gundaker v. Ehrgott, 209 Pa. 284.

      July 1, 1910:
   Opinion by

Mr. Justice Elkin,

As we view this record the learned court below erred in dismissing the bill as to all the defendants except appellant. The bill was filed against five defendants, two of whom, Shreve and Braddock, were treated as principals both in the averments of the bill and in the prayers for relief, and the other three were included because connected with the transaction about which complaint is made. The bill was dismissed as to all the defendants except Shreve upon whose shoulders the whole burden was cast without even extending relief to the extent of the unpaid purchase money, which, it is conceded, he never received, and to which relief he was clearly entitled if within the power of the court to grant. Braddock was a resident of the state of New Jersey in which was located the land out of which this controversy arose. Shreve, trustee for the bondholders, and as such a principal defendant, was a resident of Chester county, Pennsylvania, at the time'the bill was filed, and being properly served, was within the jurisdiction of the court. Braddock, being a nonresident, was served as authorized and directed by the act of 1859. He caused a general appearance to be entered for him and in his answer set up a general defense upon the merits. The other three defendants voluntarily appeared, accepted service and filed answers. All of the defendants were in some way interested in the property sold, or in the proceeds arising from the sale of it, or as mortgagor or mortgagee, or otherwise. It was a situation calling for the exercise of the equity powers of a court in such manner as to work out equitable and just results between the parties in so far as it could be done under the circumstances. Shreve was the active trustee and the bill was filed against him as such, but Braddock was also charged as being a trustee ex maleficio, and as such with having received moneys for which he had not accounted. As to the conduct of Braddock the court did not inquire and no finding was made as to his being a trustee ex maleficio, although this was one of the principal averments of the bill. In the fifth paragraph of his answer, Braddock sets up that he only assumed to act as agent for Shreve in the agreement with Taylor for the purpose of securing the payment to Shreve as trustee of $15,000, which was the amount the latter had agreed to accept for the land in question, and the balance of the purchase money agreed to be paid by Taylor did not belong to Shreve as trustee, but was due him, Braddock, as a party in interest. These were important matters bearing upon the relations and equities existing between Shreve and Braddock and upon their resultant liability to the bondholders or to each other. These things were not considered by the court in any conclusive way because the bill was dismissed as to Braddock and the other three defendants. This led to error in another respect, that is, not to fully consider the terms and conditions upon which the sale for $33,000 was made. Enough appears in the record here presented to show that Shreve only received $15,000 out of the entire purchase money, and that Braddock did not receive nearly all of the remaining $18,000. Whether he paid a commission for making the sale, what became of the money unaccounted for, why he did not receive the entire balance, and how all these things affected the equities and legal liabilities of the principal party or parties were not given that consideration in the determination of the questions involved which the facts warranted and the case demanded. No doubt this was due to the fact that the court did not consider Braddock and the other defendants within its jurisdiction for the purpose of entering a final decree against them or any of them. No one can read this record without being convinced that Shreve was misled, or imposed upon, or misinformed, or that by reason of impaired health and bodily infirmities he failed to exercise that careful diligence he otherwise would have done. While these things may not excuse him for failure to secure the largest price possible for the sale of the trust property, they do appeal to the conscience of a chancellor in determining not only his legal liability, but the equities that may exist between all the parties connected with this transaction. Then, again, it is admitted that at the time of the hearing $2,500 of the original purchase money was unpaid, and if Shreve is to be held for the entire purchase price agreed to be paid by Taylor, he is clearly entitled to have some decree entered by the court in reference to the payment of this unpaid balance as a protection to him. AIL of the parties were before the court, and we can see no reason why these matters should not have been considered and such decree made in reference thereto as to equity and justice doth appertain.

The bill was dismissed as to Braddock and the other defendants on the ground that they were nonresidents and not within the jurisdiction of the court or amenable to its processes.. The general rule is that when a court has jurisdiction of the person of a defendant it may render any appropriate decree acting directly upon the person, -although the subject-matter may be without the jurisdiction. When the court has jurisdiction over the subject-matter, or the person of a principal defendant, the rule prevailing generally in judicial proceedings applies to suits in equity. Objections to jurisdiction over the parties are waived by appearing on the merits. An answer to the merits waives an objection contained in the same answer that the defendant is a nonresident: Mutual Aid Association v. Richardson, 38 Ill. App. 111; Carroll v. Lee, 22 Am. Dec. 350; 16 Cyc. 120. In Phelps v. McDonald, 99 U. S. 298, it was held that where the necessary parties are before a court of equity it is immaterial that the res of the controversy, whether it be real or personal property, is beyond the territorial jurisdiction of the tribunal. It has the power to compel the parties to do those things necessary to give effect to the decree entered against them. Without regard to the situation of the subject-matter courts consider the equities between the parties, and decree in personam according to those equities and enforce obedience to their decree by-process in personam. For a very interesting and exhaustive discussion of this question see our late case of Schmaltz v. York Mfg. Co., 204 Pa. 1. The appellant was a trustee, the bill charged Braddock with being a trustee ex maleficio, the subject-matter of the controversy was a trust estate, and the principal defendant lived in Chester county where the court had the power to compel an accounting. When the parties all appeared either voluntarily or by service regularly made or as directed by the court under the act of 1859, and entered a general appearance, filing answers on the merits, they were within the jurisdiction of the court for every purpose of the case and should have been so treated. For these reasons we think the record should be remitted so that the court and the parties may have the opportunity of considering all questions that have been or may be raised under the pleadings affecting all the parties to the controversy.

Decree reversed, bill reinstated as to all the parties and record remitted for the purpose of having all questions affecting any or all of the parties determined in accordance with the general views herein expressed and upon the facts as they shall be ascertained upon a final hearing. Costs of this appeal to be paid by appellee.