text:
    Green v. Central Railroad Company of New Jersey, Appellant.

      Contract — Verbal contract — Railroads—Taking stone for repairing roadbed — Evidence—Case for jury.

    In an action by a landowner to recover the value of the stone and earth taken from his land by a railroad company for use in repairing its roadbed, the case is for the jury where the evidence is conflicting whether the materials had been taken without authority or under a standing verbal agreement between the parties by which the company was allowed to take all the stone it might need at a fixed price per year.
    Argued March 8, 1909.
    Appeal, No. 113, Jan. T., 1908, by defendant, from judgment of C. P. Carbon Co., June T., 1906, No. 23, on verdict for plaintiff in case of Adam A. Green v. The Central Railroad Company of New Jersey.
    April 12, 1909:
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover for stone and earth alleged to have been wrongfully taken from plaintiff’s land. Before Heydt, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $2,760. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      Laird H. Barber, with him Frederick Bertolette and Jackson E. Reynolds, for appellant.

      E. O. Nothstein, with him Wm. G. Freyman, for appellee.
   Per Curiam,

This action was to recover the value of stone and earth taken from the surface of the plaintiff’s land by the defendant for use in repairing its roadbed. The dispute at the trial was whether the materials had been taken without authority or under a standing verbal agreement between the parties, by which the defendant was allowed to take all the stone it might need at a fixed price for each year. The issue was purely one of fact and we find no error in its submission. ■

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    McGinley, Appellant, v. Lehigh Coal & Navigation Company.

      Negligence — Railroads—Mining company — Foreign cars — Sidings— Nonsuit.

    1. The rule which requires railroad companies to inspect cars received from other companies and to see that they are in good and safe condition for their employees to handle, does not apply to a mining company on whose sidings loaded cars are delivered for the purpose of being unloaded.

      2. If a mining company has no notice, actual or constructive, of the defective condition of a car on its siding, it is not liable in damages to a trainman injured by the defective condition of the car, while it is being moved on the siding by the company preparatory to the unloading of its freight.
    Argued March 8, 1909.
    Appeal, No. 278, Jan. T., 1909, by-plaintiff, from order of C. P. Carbon Co., Jan. T., 1906, No. 27, refusing to take off nonsuit in case of John McGinley v. The Lehigh Coal and Navigation Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Heydt, P. J., filing the following opinion:
    John McGinley, the plaintiff, was employed as a brakeman by the Lehigh Coal and Navigation Company. The plaintiff’s statement contains, inter alia, the following averment: “That at the time of the grievances hereinafter set forth the defendant was a corporation, engaged in mining coal and for such purposes in possession and use of certain premises in the said county of Carbon, upon which premises were laid railroad tracks used by said defendant in its business of coal mining and upon which tracks the said defendant company ran a locomotive and cars owned by it for the purpose of conveying material to its mines and coal from its premises.” On December 19, 1903, the Central Railroad Company of New Jersey had delivered two car-loads of prop timber consigned to the Lehigh Coal and Navigation Company upon the tracks of the Central Railroad of New Jersey, at Hauto, the usual place of delivery. The crew upon which John McGinley was working drew these two cars loaded with prop timber out of the siding of the Central Railroad Company of New Jersey and “kicked” them into a blind siding of the Lehigh Coal and Navigation Company in its yard at Hauto whence they were to be taken to the mines and used by the defendant in its mining operations.
    John McGinley was on one of these cars (No. 37,144 Central Railroad of New Jersey) and when he applied the brake, the brake gave way, he fell from the car and the car passed over him cutting off both his legs. The brake chain on said car had been broken and had been tied with wire and when Mc-Ginley applied the brake the wire gave way and the brake refused to hold.
    The negligence of the defendant, as alleged by the plaintiff, consists in a failure to provide an inspection of the cars before moving them. The question thus resolves itself into whether or not the defendant was bound under the facts as they appear in this case to provide inspection. If the defendant was bound to have this car inspected before moving it and failed to do so then it was negligent; if on the other hand it was not bound to do so then the failure to provide inspection would not be negligence.and the nonsuit was properly entered.
    The syllabus in the case of McMullen v. Carnegie Bros. & Co., 158 Pa. 518, is: “The rule which requires railroad companies to inspect cars received from other companies and to see that they are in good and safe condition for their employees to handle does not apply to companies or persons on whose sidings loaded cars are delivered for the purpose of permitting the owner of the siding to unload the freight even though the sidings of such person or company may be extensive in number and great in length.”
    The facts in that case are strikingly like the facts in the case at bar as will appear by a comparison thereof. That case was cited with approval in Rehm v. Penna. R. R. Co., 164 Pa. 91, and rules the case at bar.
    Under the facts in this case thé defendant was not bound to inspect the car before moving it.’ There being no legal duty on the part of the defendant to furnish inspection, a failure on its part to do so does not constitute negligence.
    There is no merit in the argument that the defendant was “engaged in the business of conducting a railroad.” There is no evidence in the case that the defendant is a common carrier and so far as we are advised it is not a fact.
    The employment in which the plaintiff was engaged at the time he was injured was simply the handling of a foreign car on the siding of the defendant. The defendant was not moving this car as a common carrier, handling a foreign car, but simply in pursuit of its private business moving said car preparatory to unloading its freight. There is no evidence that the defendant had actual notice of the defective brake chain and since the accident happened only about twenty minutes or one-half hour after the car came into its possession the time was too short to affect it with constructive notice.
    April 12, 1909:

      Error assigned was refusal to take off nonsuit.

      J. O. Ulrich, with him L. C. Scott, for appellant.

      Geo. M. Roads, with him Frederick Bertolette and William Jay Turner, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


text:
    Smith v. Coffman, Appellant.

      Will — Life estate — Fee simple estate on a contingency — Devise—Provision for widow.

    Testator directed as follows: “I give unto my wife and son W. the old homestead. The widow to remain on the farm as long as she remains my widow. W. to provide and' care for the widow as long as she livés. If the widow should marry again she will be debarred from having a home with W. Every thing that remains on the farm, at my death is to stay on the farm, W. always to keep two cows for the widow. If W. should marry and if they could not agree W. should build himself a new house, and to live in the same. If W. should die before the widow, and not being married at the widow’s death, the whole property to fall back again to my two sons and two daughters, and if W. outlives the widow, the whole of the property is his at her death.” W. died unmarried before testator’s widow. Held, that W. took only a life estate under the will, subject to be enlarged to a fee simple estate if he survived the widow.

      April 12, 1909:
    Argued March 9, 1909.
    Appeal, No. 281, Jan. T., 1908, by-defendants, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 28, on verdict for plaintiffs in case of Davis Smith and Charles Eberle, Guardian of Chester Smith, v. Thomas Coffman and Bertha Coffman.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Paradise township. Before Staples, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for plaintiffs.
    Verdict and judgment for plaintiffs. Defendants appealed.

      Error assigned was in giving binding instruction for plaintiffs.

      Rogers L. Burnett, with him Henry J. Kotz, for appellants.

      Wilton A. Erdman, with him Stewart S. Shafer, for appellees.
   Per Curiam,

The defendant, Bertha Coffman, claimed title to the land for which ejectment was brought by devise from William E. Smith. Whatever estate he had was derived under the following paragraph of his father’s will: “I give unto my wife Fanna and son William E. Smith the old Home Stead, the widow to remain on the farm as long as she remains my widow. William E. Smith 'to provide and care for the widow as long as she lives. If the widow should marrie again, she will be debared from having a home with William E. Smith, Everything that remains on the farm, at my death is to stay on the farm, William E. Smith allways to keep two (2) cows for the widow. The old Home Stead lines is to run from a small rock Oak — it stands on a rock from rock Oak near George Bushes. If William E. Smith should marry and if tha couldent agree, William E. Smith is to build himself a new house and to live in the same, If William E. Smith should die before the widow and not being married at the widows death, the whole property to fall back again to my two sons and two daughters, and if William E. Smith outlives the widow, the whole of the property is his at her death — Selda Lesher to remain with William E. Smith, until he becomes twenty-one years of age, William to provide and care for him.”

William E. Smith died unmarried, before the testator’s widow. At the trial a verdict was directed for the plaintiffs on the ground that he took only a life estate under the will, subject to be enlarged to a fee simple estate on a contingency which never happened. Although the first clause of the sentence at the beginning of the paragraph imports an absolute devise, it is clear from what follows that the testator’s intention was to provide for his wife for life and to make the estate of the son contingent upon his survival.

The judgment is affirmed.


text:
    Whitmer’s Estate.

      Husband and wife — Antenuptial agreement — Knowledge of husband’s estate.

    1. Parties to an antenuptial contract for the disposition of their estate do not deal at arm’s length but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith in disclosing all circumstances bearing on the contemplated agreement. But fraud is not to be presumed and the onus of proof is not changed in the absence of facts or circumstances from which concealment or imposition may reasonably be inferred.
    2. Where a man eighty years of age enters into an antenuptial agreement with his housekeeper, a woman fifty-three years of age, by which they mutually renounce all rights in each other’s estates, except that the woman is to receive a small sum of money from the executors of the man, and the woman has sufficient knowledge of the man’s estate to enable her to act advisedly, she cannot after her husband’s death renounce the agreement, and demand her share of his estate under the intestate laws.
    Argued March 9, 1909.
    Appeal, No. 287, Jan. T., 1908, by Margaret Elizabeth Whitmer, from decree of O. C. Franklin Co., dismissing exceptions to supplemental report of auditor in Estate of Jacob S. Whitmer, deceased.
    April 12, 1909:
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to supplemental report of J. R. Ruthrauff, Esq., auditor. Before Gillan, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to supplemental report of auditor.

      W. K. Sharpe, of Sharpe & Elder, for appellant.

      William S. Hoerner, with him George W. Atherton, for appellees.
   Per Curiam,

Parties to an antenuptial contract for the disposition of their estates do not deal at arm's length but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith in disclosing all circumstances bearing on the contemplated agreement. But fraud is not to be presumed and the onus of proof is not changed in the absence of evidence of facts or circumstances from which concealment or imposition may reasonably be inferred: Robinson's Estate, 222 Pa. 115.

There is no evidence as to what took place at the execution of the agreement that the appellant seeks to have set aside, and in the absence of all proof it is presumed that there was no designed concealment or imposition. By the terms of the agreement the decedent relinquished all claims to her estate and agreed that his executors should pay her $1,500. She agreed to become his “wife, caretaker and nurse "during his natural life, and renounced all claim to his estate. He was at the time eighty years of age and it was his third marriage. She was fifty-three. He had five children of his first marriage living and she was a widow with three children, two of whom were married and the third was a boy of seventeen who con-tinned to live with her after her marriage. They had both lived for many years in a small town, where each inhabitant knew all the others. For three or four years she had kept house for a man living across the street from the decedent and, when she lost her situation with him, she entered the employment of the decedent as housekeeper. The marriage took place three months later, and his death occurred a year afterwards. He had an estate of about $20,000, nearly all of which he had received from the estate of his second wife, concerning whose will there had been litigation to which much publicity had been given and which had terminated in his favor. The result and the amount received were subjects of general knowledge in the community. There was evidence that she had believed his estate to be much larger than it really was and that she had said that she signed the agreement because, if she did not, some other woman would and that she might as well have the money secured by it as anybody else. They deliberately made a bargain by which he secured a caretaker, and she secured a home and compensation for services to be rendered during a period of uncertain but necessarily quite limited duration. She had sufficient knowledge as to his estate to enable her to act advisedly, and there is no adequate reason for releasing her from her contract.

The decree is affirmed.


author: . Per Curiam,

text:
    Howell’s Estate.

      Vendor and vendee — Articles of sale of real estate — Deed clear of incumbrances — Interest.
    When the vendor in articles of agreement for sale'of land is to give vendee a deed “clear of incumbrances,” and the contract provides for immediate possession of the land by the vendee, as part of the benefit for the consideration to be paid, if no interest is stipulated for in the meantime by the vendee, none is payable until after the incumbrance is removed by the vendor and deed tendered.
    Argued March 9, 1909.
    Appeal, No. 17, Jan. T., 1909, by George O. Rice and Stanley Howell, administrators, from decree of O. C. Northampton Co., on petition for specific performance in Estate of D. W. Howell.
    Before Fell, Brown, Mestrezat, Elicin and Stewart, JJ.
    Affirmed.
    Petition for specific performance.
    The petition was in substance as follows:
    George O. Rice and Stanley Howell were appointed administrators of the estate of David W. Howell, deceased.
    In his lifetime said David W. Howell was the owner of a tract of land situated in Northampton county, Pennsylvania.
    He entered into articles of agreement on August 4, 1902, to grant, bargain and sell said land to the Northampton Railroad Company. The agreement provided that an annual ground rent of $250 shall be paid by said Northampton Railroad Company, and that within thirty days from the date of the agreement a ground rent deed should be executed and delivered by the vendor.
    The agreement also gave the purchaser the option at any time to extinguish the said ground rent upon the payment of $5,000 and all arrearages of rent.
    Permission was given to the vendee to immediately enter upon said land and construct its railroad thereon.
    A further provision gave the vendor the privilege within thirty days of accepting $5,000 in the five per cent bonds of the said railroad company in lieu of the said ground rent and upon his accepting the said bonds to deliver within said thirty days a deed in fee simple, clear of incumbrances, to the said railroad company.
    In pursuance of said permission to enter the vendee took possession of said land and has used and enjoyed the same from the date of its entry.
    The vendor, in his lifetime, accepted the privilege of said bonds of the railroad company in lieu of the annual ground rent and tendered a deed in fee simple, which deed the said railroad company refused to accept because of the existence of a public road upon and over a part of the land, which it claimed was an incumbrance thereon. This contention was sustained by the court below and the Supreme Court upon appeal.
    The said public road was formally vacated upon petition of the vendor with notice to the vendee at the time of its vacation.
    The vendor died, having made no provision for the performance of said contract during his lifetime; the administrators, therefore, presented this petition to the orphans' court praying said contract shall be specifically performed, and that the vendee shall pay interest on the purchase money from the time of entry.
    Scott, P. J., filed the following opinion:
    There is no substantial dispute about the facts. They are admitted as pleaded in the bill. Some additions thereto are averred by answer and admitted or proven, which are embraced in specific findings, as follows:
    Contemporaneously with the execution of said contract, the Northampton Railroad Company delivered to the said David W. Howell a check for $1,000, as provided in said contract, who thereupon delivered to the said company a receipt in these words: “Received, Martins Creek, Aug. 4th, 1902, from Northampton Railroad Company, draft of William Jay Turner for One Thousand Dollars in pursuance of agreement bearing even date herewith, same to be held as in said agreement provided, and returned upon delivery of deed. In consideration whereof said Northampton Railroad Company is privileged to enter at once on the premises covered by said agreement and proceed with its work of construction.” That said draft was found by the administrators of David W. Howell among decedent's papers after his death, was produced in court at the time of hearing, and tendered to defendant.
    The railroad company in the work of construction immediately after the execution of the agreement between the parties, occupied a portion of the public road, since vacated (hereinafter mentioned): the part over which its tracks were laid, was not traveled by the public.
    A bill for specific performance of this agreement was filed in the common pleas by David W. Howell in his lifetime (No. 10, December Term, 1903), and execution of it resisted; a deed was tendered to vendee March 31, 1903, but refused, because the vendor could not make title “clear of incumbrance,” which incumbrance consisted of a public road over and longitudinally along its tracks for some distance. The bill was dismissed September 12,1904, and judgment affirmed March 20,1895: Howell v. R. R. Co., 211 Pa. 284.
    The public road to which reference is above made, was thereafter, by final confirmation on June 12, 1905, vacated by viewers appointed upon petition of David W. Howell. The defendant had notice of the fact.
    David W. Howell died November 10, 1905, without having previously made provision for performance of the contract, and letters of administration were granted by the register on November 16. This bill was exhibited by the administration, July 13, 1908. From the first of April prior to this last date, through the period intervening, there were negotiations pending between opposing counsel relative to amicable adjustment of this demand.
    The bonds of the railroad company have all been sold, are not listed for sale at any exchange, have no fixed and definite market value, are held chiefly as investment securities, and upon application to a broker for the purchase of them the administrators were informed he did not know where they could be bought. The president of the defendant company asserts his ability to procure them, if required, and by his answer stands ready to deliver them now without interest.
    CONCLUSIONS OF LAW.
    When the vendor in articles of agreement for sale of land is to give vendee a deed “clear of incumbrances,” and the contract provides for immediate possession of the land by the vendee, as part of the benefit for the consideration to be paid, if no interest is stipulated for in the meantime by the vendee, .none is. payable until after the incumbrance is removed by the vendor and deed tendered.
    While the answer denies jurisdiction of the court to decree specific execution of the contract by asserting an adequate remedy at law and suggests laches of the complainants and their deceased intestate, the real contention is whether payment shall be delivery of the bonds with interest value from the date of the execution of the agreement (August 4, 1902), or without it.
    In the eleventh paragraph of the answer to the whole petition “the respondent avers that it has been ready and willing at all times, both during the lifetime of said David W. Howell and since his decease, to deliver the bonds of the Northampton Railroad Company, referred to in the contract annexed to said petition, immediately upon the delivery to it of a proper deed conveying to it the premises described in said petition in fee simple, clear of incumbrances, together with the return of the check for $1,000, and is now ready and willing to deliver said bonds, bearing interest from the date when such deed shall be delivered and said check returned.”
    But few observations, therefore, are necessary beyond discussion of this’ single question of the right to interest, for the others may well be treated as waived by the pleadings.
    The principles which apply to specific performance of the contracts of decedents in the orphans’ court under the Act of assembly February 24, 1834, sec. 15, P. L. 70, are the same as those which control a chancellor in equity: Brady’s Appeal, 66 Pa. 277.
    No doubt the petitioners, after diligent pursuit, might be able to purchase these bonds by advertisement or other methods, although not listed upon the exchanges. It is a familiar rule that equity will not entertain jurisdiction to decree execution of a contract by a vendee which contemplates only the payment of money; nor generally where the consideration consists of goods or chattels, stock or bonds for which differences in market values after purchase thereof may be adequately compensated, but it is not universal. There are many exceptional cases. It is not applicable where some specific chattel bargained for has a personal value, or which the defendant only can supply; nor where the whole issue of bonds is held by one or a few persons for investment; when they have no definite value in the general market; when the difficulty of acquisition by the complainant would be great, or practically impossible.
    This agreement contemplated immediate possession by the vendee of the land to be conveyed, with a covenant that a railroad should be constructed upon it and operated. The tract was surrounded by other lands of the vendor. He exercised within thirty days the option to take these bonds, instead of the annual ground rent of five per cent upon a capitalization of $5,000, and it is, therefore, evident that his purpose had in view larger possibilities than seemed then to be measured by this percentage on investment. Jurisdiction in equity is often assumed upon the ground that relief by bill is the most convenient, although there be a remedy at law: Bierbower’s Appeal, 107 Pa. 14; Appeal of Brush Electric Light Co. et ah, 114 Pa. 574. And if the question was more doubtful than it seems to me, as no demurrer was interposed, the bill will not be dismissed: Dorff v. Schmunk, 197 Pa. 298.
    When time is not of the essence of the contract, delay in tendering title, especially if acquiesced in by the defendant, or occasioned by his objections, is no bar to specific execution of it unless there has been gross and inexcusable laches or such a change in the situation of the parties or property that suitable compensation cannot be made by payment of interest to one party, or its correlative loss to the other: Morgan v. Scott, 26 Pa. 51; Sylvester v. Born, 132 Pa. 467; Waterman, Spec. Perf., sec. 478; Tiernan et al. v. Roland and Blackstone, 15 Pa. 429. Time is not usually of the essence of a real contract, but it may become so, although not expressly stipulated for, when the consideration for it consists of securities, the value of which in periods of business activity or depression is subject to enhancement or depreciation: Waterman, Spec. Perf., sec. 460. In 1904 these bonds were “atrifle above par.” But their price now has not been proven.
    But I need say no more upon these two propositions. They have not been pressed by argument, except to urge that by delay the complainants in equity have forfeited interest, if otherwise they might have been entitled to receive it.

      The case relating to interest demands on real contracts, are divided into two classes with a distinction between them which is not plain until after close examination, for all of them do not seem to be harmonious at first view. The question seldom arises in suits for specific performance by a vendor except by petition to execute the contracts of decedents in the orphans’ court, as bills for that purpose are predicated upon the fact that they cannot be maintained for payment of the consideration in money. It is sometimes presented on a vendee’s bill after tender, but more frequently in actions of covenant or ejectment to enforce the payment stipulated for in articles of agreement.
    When the contract has not been executed by delivery of a deed at the time appointed, and possession has not been given, the general rule upon the subject is thus stated: “The vendor is regarded as trustee of the land for the benefit of the purchaser, and liable to account to him for rents and profits, or for the value of the use and occupation, and the purchaser is treated as trustee of the purchase money unpaid and charged with interest thereon unless the purchase money has been appropriated, and no benefit has accrued from it to the purchaser:” 2 Beach, Eq. Jur., sec. 633. When possession of the land, however, has been taken by the vendee (otherwise than as part of the contract), and then holds and enjoys it without disturbance, the situation is reversed, and it has been held under these circumstances that as the purchaser has the profits of his use and occupation that will be deemed equivalent to the interest on the price to be paid which then belongs to the vendor: Fasholt v. Reed, 16 S. & R. 266 (ejectment)j Minard v. Beans, 64 Pa. 411 (covenant); Blair’s Estate, 178 Pa. 582 (bill by vendee); Hershey’s Estate, 213 Pa. 601 (bill by executors of vendor in orphans’ court).
    The class of cases to which this principle applies are those in which there is a certain time appointed for delivery of the deed, and payment of the purchase price, but the vendee fails to receive his deed at the designated period, either because the vendor is not ready, or is unable to give a clear title, or remove incumbrances at once. In these instances the purchase money is legally “due” by the terms of the vendee’s covenant at the day set for payment. Although he gets no deed immediately he has an equitable title in the land, and continued undisturbed possession of it makes him responsible for the interest from that date, provided the vendor is vigilant in removing the disability, and the vendee has not kept his money uninvested and unproductive, but appropriated to this anticipated and future payment.
    The other class of cases is where the mutual covenants between the parties are treated as dependent: Adams v. Williams, 2 W. & S. 227; Keeler & Co. v. Schmertz et al., 46 Pa. 135. If the consideration is to be paid only upon receipt of deed for a clear title, or one free from incumbrances, the money is not “due” until such a conveyance is tendered, for the vendor may never be able to comply; and as interest, when not expressly contracted for, is the legal and uniform rate of damages for detention of money after it becomes due, it is not charged against a vendee willing to comply with the condition who is in possession under the contract itself, until the event happens upon which payment depends. It may be said of this rule what Judge Sharswood said of the distinction between sharing in profits and receiving a certain percentage of them as compensation, in the determination of a partnership existence : “ It must be admitted to be of a very refined and shadowy character, but it has been authoritatively established.” It will be found supported and illustrated by great variety of facts in McKennan v. Sterrett, 6 Watts, 162; Minard v. Beans, 64 Pa. 411; Robbins v. Coal Co., 198 Pa. 301; Nettleton v. Caryl, 14 Pa. Superior Ct. 443. In this last cited case it is said by Judge Rice (p. 445): “ It is contended that where the vendee of land is put into possession, he must pay interest on the purchase money, whether the articles call for it or not. It is not to be denied that expressions can be found in text-books and reports which read by themselves and apart from the facts of the cases in which they are used would seem to sustain this contention. . . . But (p. 447) where the contract expressly provides that he shall have immediate possession of the land, and that the purchase money shall not be due and payable until a future day, and is silent upon the subject of interest, no such equitable consideration enters into the case, and we understand the law to be that he is not chargeable with interest until the debt is due.” In Robbins v. Coal Co., 198 Pa. 301, it was declared (p. 304), with respect to a condition in the agreement similar to the one here that, “The first installment of the unpaid purchase money, therefore, was not ‘due’ and payable until White had delivered not only a deed, but one clear of incumbrances. Until both of these conditions had been complied with the defendant was not required to pay the money, and was in no default in not paying it.”
    Even in Blair’s Estate, 178 Pa. 582, the authority of which was strongly put before me by the petitioning counsel, it will be seen upon examination of the facts that the money upon which interest was charged from October 17, 1887, was due and payable on that date by the contract, and the vendee whose bill it was for performance, wished to evade it for the equitable considerations therein discussed, but which were adjudged untenable.
    The present contract, it has been expressly decided by judgment on appeal, belongs to this class: Howell v. Northampton R. R. Co., 211 Pa. 284.
    The defendant has been in undisturbed possession of this land since August, 1902; has constructed, and is now operating its railroad over it, and thus enjoyed the profits of its use and occupation without compensation. But this is not so inequitable as it seems from the statement of the fact. It was put into immediate possession, not unlawfully nor by mere acquiescence of the vendor, but by virtue of the contract, and the use of it pending a conveyance as required was part of the benefit to be received for the consideration then named, as will be seen from the receipt given for the draft of $1,000, as well as from the written agreement. The only default about the execution of the deed was that of the decedent. Under these circumstances no action at law would lie for the rents and profits, or use and occupation. He tendered no deed at all until March 31, 1903. The objection to it was not capricious. When declined because the incumbrance of the highway existed, the vendor did not proceed to remove it, but filed his bill in equity to compel the defendant to accept it with this defect, and continued the litigation through the appellate court where it did not reach final decision before March 20, 1905.
    I do not say that having thus made an election of remedy with full knowledge of the facts there is none left to his representatives here, in the absence of rescission by the defendant, but they can have no cause of complaint on behalf of his estate, which was not a legal grievance to him in his own lifetime.
    The expenses of this protracted litigation to the defendant, although the amount is not shown, must have fairly equaled or exceeded the ground rent valuation up to the time of his death put upon the occupancy of the land by the vendor in his agreement. While counsel fees and expenses incurred in a suit may not be recovered in an action at law, it must not be forgotten that specific performance is decreed only as a matter of grace, and a strict legal right is not sufficient to move a chancellor if it will be inequitable or unfair, nor without indemnification for a loss occasioned by the acts of the plaintiff: 'Waterman, Spec. Peri., sec. 176. This subject-matter is pleaded as a defense against the prayer of the bill.
    ■’ The incumbrance was lifted on June 12, 1905, and the decedent living for five months afterward made no tender of conveyancé. The defendant knew of the vacation of the road, but as it did not intend to rescind the contract, was not required to tender performance on its own behalf. After the decedent’s death his own deed, if yet in existence, would have conveyed no title: Karmane v. Hoober, 3 W. & S. 253. But his administrators at once, or after short delay incident to examination of his business papers, could have made proof of the contract under the Act of March 31,1792,3 Sm. L. 66 (1 Purd. Dig. 738), and as the defendant had always pleaded its readiness to take the title when clear of incumbrances and pay the consideration, conveyance by them under an order of court would have been attended by no material loss: Hagerty’s Case, 4 Watts, 305; Chess’s Appeal, 4 Pa. 52. The defendant was still holding possession and enjoying the profits pending delivery of this deed, as part of the consideration of the decedent’s contract. That this period was longer or shorter than had been originally anticipated did not legally affect the company. The complainants here had the power to terminate the difficulty, but took no steps to comply with the stipulated conditions for conveyance until two years and a half more had expired.
    April 12, 1909:
    The defendant is entitled to a fee. simple deed, pursuant to the terms of the agreement and return of the draft, for which it will make payment in bonds of the Northampton Railroad Company, guaranteed as therein specified, of the par value of 15,000, with coupons attached, bearing interest from the date of delivery of the deed and draft. The plaintiffs will pay the costs. Let a decree be prepared in accordance- with this opinion, submitted and settled sec. reg.

      Error assigned was decree entered in accordance with the opinion.

      Aaron Goldsmith, for appellant.

      Edward J. Fox and James W. Fox, for appellee,
   . Per Curiam,

The decree is affirmed on the opinion of the learned president judge of the orphans’ court.


text:
    McLaughlin v. Summit Hill Borough, Appellant.

      Election law — Ballots—Increase of indebtedness — Borough—Constitutional law — Repeal of statutes — Acts of June 9, 1891, P. L. 252, and April 29, 1903, P. L. 338.
    1. The ballots to be used at an election to ascertain whether the indebtedness of a borough shall be increased must be official ballots furnished by the county commissioners and must be in the form prescribed by the Act of April 29, 1903, P. L. 338.

      2. The Act of April 29, 1903, P. L. 338, does not violate any constitutional provisions relating to the amendments of acts and is a valid and constitutional law.
    3. The Act of April 29, 1903, P. L. 338, relating to official ballots, repeals the Act of June 19,1891, P. L. 349.
    Argued March 10, 1909.
    Appeal, No. 64, Jan. T., 1909, by defendant, from decree of C. P. Carbon Co., Jan. T., 1909, No. 1, on bill in equity in case of David McLaughlin v. Summit Hill Borough.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Heydt, P. J., filed the following opinion:
    FINDINGS OF FACT.
    1. David McLaughlin, the plaintiff, is a citizen, property owner, taxpayer and resident of the borough of Summit Hill, Carbon county, Pennsylvania.
    2. The borough of Summit Hill is duly incorporated under the Act of April 3, 1851, P. L. 320.
    3. The borough of Summit Hill on June 4, 1906, duly enacted and passed an ordinance authorizing an increase of the bonded indebtedness of- the said borough to the amount of $39,000 for the purpose of constructing sewers in the borough and providing for submitting to the voters at a special election to be held on Tuesday, July 10,1906, the question whether or not the indebtedness should be increased.
    4. In pursuance of said ordinance, a special election was held on Tuesday, July 10, 1906, resulting in 226 votes in favor of, and eighty-seven votes against said increase.
    5. At the special election held on July 10, 1906, the commissioners of Carbon county did not furnish any official ballots to be used by the said electors in voting on said question of increasing the indebtedness of said borough.
    6. At said special election held on July 10, 1906, no official ballots in the form prescribed by the Act of April 29, 1903, P. L. 338, were used.

      7. The ballots used at the special election held on July 10, 1906, were prepared and furnished by the authorities of the borough of Summit Hill, and were in the form prescribed by the act of June 9, 1891, being as follows:
    “(a) Debt may be increased. The purpose of the said increase is to construct sewers in the borough and the amount of such increase is not to exceed $39,000. (Endorsed) 'Increase the debt.’
    “(b) No increase of debt. The purpose of the said increase is to construct sewers in the borough and the amount of such increase is not to exceed $39,000. (Endorsed) 'Increase the debt.’ ”
    8. No bonds have been issued by the borough of Summit Hill in pursuance of said ordinance and election and since July 10,1906, no tax has been levied and assessed for the purpose of paying the principal and interest of such bonds.
    9. The borough of Summit Hill is about to issue bonds in pursuance of said ordinance and election.
    CONCLUSIONS OK LAW.
    1. The ballots to be used at an election to ascertain whether the indebtedness of a borough shall be increased must be official ballots furnished by the county commissioners and must be in the form prescribed by the Act of April 29, 1903, P. L. 338.
    2. The ballots used at the special election held in the borough of Summit Hill, on July 10, 1906, were not proper, valid and legal ballots.
    3. The special election held on July 10,1906, in the borough of Summit Hill, was illegal and void.
    4. The increase of the indebtedness of the borough of Summit Hill in the sum of $39,000 is not authorized by a legally conducted election.
    5. The complainant is entitled to the relief prayed for.
    DISCUSSION.
    The Act of June 9, 1891, P. L. 252, is clearly repealed by the Act of April 29, 1903, P. L. 338, if the latter is valid. It was conceded upon the argument that the determination of this question is decisive of the case.
    That the Act of June 19, 1891, P. L. 349, and the Act of June 10, 1893, P. L. 419, did not repeal the Act of June 9, 1891, P. L. 252, is decided in Evans et al. v. Willistown Township et al., 168 Pa. 578.
    By the Act of July 9,1897, P. L. 223, the fourteenth section of the act of June 10,1893, was attempted to be amended, but this act is equally defective with the acts of June 19,1891, and June 10, 1893, in not meeting the requirements of sec. 3, art. Ill, of the constitution, in so far as it relates to the increase of municipal indebtedness.
    The defendant contends very earnestly that the Act of April 29, 1903, P. L. 338, also is unconstitutional, because it is an amendment of the act of June 10, 1893, as amended by the act of July 9, 1897, and that since these two latter acts are unconstitutional the act of April 29, 1903, necessarily is so also.
    The defendant’s contention that an unconstitutional or void section of an act cannot be amended and that an unconstitutional or void section of an act cannot be amended by changing the title of the original act is sound doctrine and good law. It must be sustained upon principle and authority. Unfortunately for the defendant, the case at bar does not fall within these lines.
    If the fourteenth section of the act of June 10, 1893, contained only the provision relating to how the tickets shall be printed when a vote is to be taken on a constitutional amendment or other question, then no notice thereof being given in the title the section would be unconstitutional and then the entire section would be void and of no effect. Then there would be nothing left to amend.
    Then the language, “The act never became a law, as such has no existence. The attempt of the legislature to breathe the breath of life into this inanimate object by amending the title was ineffective,” quoted from Bennett v. Sullivan County, 29 Pa. Superior Ct. 120, would be applicable. The fourteenth section of the act of June 10, 1893, however, contains a number of other provisions, e. g., how the ballots shall be printed, how names of candidates shall be arranged, etc., the constitutionality of which provisions has never been questioned, so that after the one clause (not the section) was declared unconstitutional, there was something of form and substance left which was constitutional. It was not a “ dead body.” It was something real and alive. It was a living stem upon which a limb could be engrafted. The same may be said of the act of July 9, 1897.
    The act of April 29, 1903, did not simply amend the acts of June 10, 1893, and July 9, 1897, by amending the title, but it re-enacted the entire fourteenth section thereof and gave notice of the subject in the title of such amendment and it is, therefore, a valid amendment and repeals the act of June 9, 1891.
    The question before us is, however, not one of first impression. In Conshohocken Borough v. Montgomery County Commissioners, 14 Pa. Dist. Rep. 141, Judge Swartz in a well-considered opinion reaches the conclusion that the act of April 29, 1903, is constitutional.
    The facts in the case at bar are similar to those in Holtzman v. Braddock, 14 Pa. Dist. Rep. 547, and we follow the rulings in that case.
    It follows from what has been said that the increase of indebtedness of the borough of Summit Hill was not authorized by a vote of the people obtained at a properly conducted election, and that the relief prayed for in the bill should be granted.
    Now, January 14,1909, this cause came on to be heard upon bill and answer at this term, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged, and decreed as follows, viz.:
    1. That the borough of Summit Hill and its officers be restrained by injunction perpetually from issuing any of the bonds for the construction of sewers.
    2. That the election held on July 10, 1906, for the purpose of increasing the indebtedness of said borough to an amount not exceeding 139,000 for the construction of sewers be declared illegal, and that the authority to issue said bonds based upon said election be declared illegal and void.

      April 12, 1909:

      Error assigned was decree awarding injunction.

      Laird H. Barber, with him E. E. Scott and Leighton C. Scott, for appellant. —
    The act of 1903 is unconstitutional: Com. v. Taylor, 159 Pa. 451; Millvale Boro. v. Ry. Co., 131 Pa. 1.

      W. G. Thomas, with him Freyman & Nothstein, for appellee,
    cited: Pennsylvania v. Hall, 5 Pa. 204; Allison v. Corker, 67 N. J. L. 596 (52 Atl. Repr. 362); Conshohocken Boro. v. Montgomery County Commissioners, 14 Pa. Dist. Rep. 141; Holtzman v. Braddock, 14 Pa. Dist. Rep. 547.
   Per Curiam,

The decree is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Fell,

text:
    Watson v. McManus, Appellant.

      Judgment — Assignment—Injunction—Equity—Accounting.
    On a bill in equity for an account where it appears that the defendant, a city contractor, had assigned to the plaintiff all moneys due under the contract, but notwithstanding the assignment had recovered a judgment against the city for such moneys, the court may, after having.found that the defendant was indebted to the plaintiff for more than the amount of the judgment, direct the defendant to mark the judgment to the use of the plaintiff.
    Submitted March 23, 1909.
    Appeal, No. 389, Jan. T., 1908, by defendants, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 4,416, on bill in equity in case of James V. Watson v. Michael McManus, Appellant, and the. City of Philadelphia and John M. Walton, Controller of the City of Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction and for an account. Before Brégy, J.

      April 12, 1909:
    The opinion of the Supreme Court states the facts.
    The court entered the following decree:
    1. That the said Michael McManus, defendant herein, within five days from the date of this decree mark to the use of James V. Watson, plaintiff herein* the judgment in the suit of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547.
    2. That in default of said Michael McManus, so marking said judgment to the use of said James V. Watson, as above directed, the prothonotary is hereby ordered and directed to mark said judgment to the use of said James V. Watson.
    3. That upon the marking of said judgment to the use of said James V. Watson, he, the said James V. Watson, have full power and authority to enforce payment of the same; provided, nevertheless, that interest on said judgment of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, is to be calculated and to run only from the date of the filing of the referee's report in said suit, namely, February 2,1904, to the date of the warding of the injunction against the city of Philadelphia in this suit ; namely, January 15, 1907, unless otherwise ordered by the court.

      Error assigned was the decree of the court.

      Wm. M. Reese and Wm. W. Lucas, for appellant.

      George R. Van Dusen and John G. Johnson, for appellee.
   Opinion by

Mr. Justice Fell,

The defendant, in consideration of advances made to enable him to carry out a contract with the city of Philadelphia, assigned to the plaintiff all moneys due or that might become due on the contract. Notwithstanding this assignment the defendant brought an action against the city and recovered judgment. The plaintiff procured an injunction restraining the defendant from collecting the judgment until a final decree should be entered in a proceeding in equity between the parties for the settlement of their accounts, with leave to apply to the court for a further order when the suit for an accounting should have been determined. The decree awarding an injunction was affirmed on appeal: Watson v. McManus, 221 Pa. 41. After a final decree had been eptered in the suit for an accounting, directing McManus to pay a sum larger than the amount of the judgment against the city, the court made a further order in this proceeding directing the defendant to mark the judgment to the use of the plaintiff.

The appeal is from this order, and it presents no question that has not been finally settled in favor of the plaintiff. The subject of the controversy was the ownership of the judgment obtained against the city by the defendant, McManus. The court found that all the money due under the judgment belonged to the plaintiff by virtue of the assignment to him, and the order appealed from is supplemental to and gives effect to the decree before entered. The order is affirmed at the cost of the appellant.


text:
    Samuel, Appellant, v. Sota.

      Appeals — Jurisdiction—-Amount in controversy — Supreme Court— Superior Court.

    1. An appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense lies to the Superior Court where the amount claimed in the plaintiff's statement is under $1,500, although a counterclaim set up in the affidavit of defense for breach of another and distinct contract is for an amount in excess of $1,500 and although the establishment of the counterclaim at the trial would entitle the defendant to a certificate for an amount in excess of $1,500 even should plaintiff's entire claim be allowed.
    2. Under the Act of May 5, 1899, sec. 4, P. L. 248, the test of jurisdiction where the plaintiff fails to recover anything is the amount “ claimed in the statement of claim or declaration.”
    Argued March 23,1909.
    Appeal, No. 353, Jan. T., 1908, by plaintiffs, from order of C. P. No. 4, Phila. Co., Sept. T., 1908, No. 282, discharging rule for judgment for want of a sufficient affidavit of defense in case of Frank Samuel and Silas M. Tomlinson, trading as Frank Samuel, v. Sota & Aznar, trading as Sota & Aznar.
    April 12, 1909:
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Appeal remitted to Superior Court.
    Rule for judgment for want of a sufficient affidavit of defense. Before Audenried, J.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      Lems Lawrence Smith, for appellants.

      Stevens Heckscher, of Duane, Morris & Heckscher, for appellees.
   Opinion by

Mr. Justice Fell,

The question of jurisdiction was not raised by the appellees, but it is incumbent upon us to notice it. The appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense. It appears from the plaintiffs’ statement of claim that the action was brought to recover the sum of $766, the amount of overpayment for iron ore bought by the plaintiffs from the defendants. The correctness of the claim made and the defendants’ liability are expressly admitted in the affidavit of defense; but the defendants set up a counterclaim for $2,379 for the breach of another contract entirely distinct from the one on which suit is brought. The validity of the counterclaim, under the facts alleged in the affidavit of defense, is the only matter in controversy, and the establishment of the claim at the trial would entitle the defendants to a certificate for an amount larger than the jurisdictional limit of the Superior Court. This does not, however, affect the question of jurisdiction.

Where the jurisdiction of the Superior Court depends upon the amount in controversy, the mode by which the amount shall be determined is fixed by sec. 4 of the Act of May 5,1899, P. L. 248, which provides, inter alia, that: “In any suit, distribution or proceeding in the common pleas or orphans’ court, if the plaintiff or claimant recovers damages either for a tort or for a breach of contract, the amount of the judgment, decree or award shall be conclusive proof of the amount really in controversy; but J he recovers nothing, the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim or declaration.” The question of jurisdiction is thus fixed by the act of assembly and the test, where the plaintiff fails to recover anything, is the amount of his claim as declared upon.

The appeal is remitted to the Superior Court.


author: Mr. Justice Elkin,

text:
    Keller, Appellant, v. Cohen.

      Promissory notes — Payment—Specific source — Contemporaneous written agreement.

    1. It is competent for parties to contract for the payment of an obligation out of a particular fund, and in a particular manner.
    2. In an action upon promissory notes the defendant may set up a contemporaneous agreement evidenced by several writings in connection with the notes in support of the contention that the notes were to be paid out of a particular fund, and that this agreement was the inducing cause which led him to execute the notes.
    Argued March 23, 1909.
    Appeal, No. 39, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 452, on verdict for defendant in case of Joseph S. Keller v. Andrew J. Cohen.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on two promissory notes. Before Audenried, J.
    The facts are stated in the opinion of the Supreme Court, and in the former report of the case in 217'Pa. 522.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various rulings on evidence and instructions, including a refusal to give binding instructions for plaintiff.
    April 12, 1909:

      John Stokes Adams, for appellant.

      Albert B. Weimer, with him Andrew Wright Crawford, William E. Stokes, Frederick M. Leonard and Bernard Gilpin, for appellee.
   Opinion by

Mr. Justice Elkin,

Two questions were decided when this case was h'ere on the former appeal, namely, first, that it is competent for parties to contract for the payment of an obligation out of a particular fund, and in a particular manner; and, second, that the averments of the affidavits of defense, if proven at the trial and believed by the jury, were sufficient to defeat a recovery: Keller v. Cohen, 217 Pa. 522. The judgment entered by the court below at that time was reversed and a procedendo awarded. The parties went to trial and the defendant offered in evidence all of the writings set up in the affidavits of defense, which were supplemented by his own testimony explaining the transaction, identifying the writings, including the notes in suit, and showing that he had not received any profits derived from the sale of umbrella tubes. In substance and effect these were the matters averred in the affidavits of defense. The case as we view the record stands as follows: This court said when the case was here before if the facts averred be duly proven at the trial a defense would be made out if believed by the jury. They were proven at the trial and the verdict of the jury shows that they were believed. This should be an end of the case now unless it was wrongly decided then, and we are not convinced-that there was any error in the disposition made of it on the former appeal. This is not the ordinary case of a suit brought on a promissory note in commercial use. This suit is between the original contracting parties, and the defense was and is that the notes sued upon were not separate transactions evidencing independent loans on one -side and an individual liability on the other, but that they were taken and given as the culminating act in the negotiations which constitute the contract between the parties. These negotiations are not proven by parol but are evidenced by papers in writing spread upon this record. They are, letter of September 8, 1898, note of November 14, 1898, assignment of insurance policy dated November 29, 1898, indorsement of assignment as satisfactory December 1,. 1898, and note of February 21, 1899.

Cohen and Seymour had obtained a patent for new and useful improvements in the sticks or rods of umbrellas which Keller thought was a valuable invention. He desired to obtain an interest in the invention and to organize a company for the manufacture of umbrella tubes, and this is what led to the negotiations above referred to and finally resulted in whatever contract was made, between the parties. Cohen needed some money and Keller agreed to advance it to him, and in the letter of September 8, 1898, stated the conditions upon which he would advance the money and specified the manner in which the amount advanced should be paid back to him. All the other writings followed and when taken together show the intent and meaning of the parties. These papers supplemented by. the testimony of the defendant are sufficient to sustain the verdict of the jury. The assignments of error are technical and go to the question of the insufficiency of the testimony to show such a connection between the papers and the parties as to constitute the contract relied on. We cannot accept this view of the situation. The subject-matter of the writings, the sequence and order of the negotiations evidenced by the papers themselves, and the testimony of the defendant, are sufficient to justify a jury in finding the facts above stated. In the letter of September 8, Keller agreed to advance money to Cohen with the understanding expressed in writing that “the amount advanced to be paid back to me from the immediate proceeds of profits derived from the sale of umbrella tubes made.” Keller took two notes for the money so advanced. These notes were made payable in five years and are not interest bearing, all of which is to some extent a confirmation of the defense set up, namely, that they were to be paid in a particular manner, or out of a particular fund. Cohen testified that he accepted the money and gave the notes in pursuance of the arrangement stated in the letter, and that this was the inducing cause which led him to execute the notes. The letter specified that the notes were to be paid out of profits derived from the sale of umbrella tubes and the testimony shows that no profits accrued to Cohen. Certainly this made out a defense under the rule stated on the former appeal and the authorities there referred to.

Assignments of error overruled and judgment affirmed.


text:
    Pennock, Appellant, v. Locust Realty Company.

      Mechanic’s lien — Waiver of liens — Conveyance of property — Contract.
    A subcontractor who agrees to furnish material and labor to a building under construction after a conveyance by the original owner to a new purchaser, is bound by the contract between the original owner and the contractor filed of record and containing a waiver of liens.
    Argued March 24, 1909.
    Appeal, No. 51, Jan. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 1,313, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of Edmund M. Pennock, trading as J. Sellers Pennock, v. Locust Realty Company, Owner or Reputed Owner, and Moore & Company, Incorporated, Contractor.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Scire facias sur mechanic's lien. Before Magill, J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      Chas. Francis Gummey, for appellant,
    cited: Erie City v. Butler, 120 Pa. 374; Pagnacco v. Faber, 221 Pa. 326; Wyss-Thalman v. Beaver Valley Brewing Co., 216 Pa. 435.
    April 12,1909:

      Preston K. Priman, with him Charles L. Lockwood, for appellee,
    cited: Bohem v. Seabury, 141 Pa. 594; Long v. Black, 5 Pa. C. C. Rep. 258; Mears v. Dickerson, 2 Phila. 19; Blaisdell v. Dean, 9 Pa. Superior Ct. 639; Phelps v. Burns, 16 Pa. Superior Ct. 391; Jones v. Shawhan. 4 W. & S. 257.
   Opinion by

Mr. Justice Elkin,

An interesting question of practice has been suggested by the learned counsel for appellee in this case, but it is unnecessary to rest our decision on this ground because we cannot accept as sound the position of appellant on the real question involved in this controversy. The question here arises under the mechanic’s lien Act of June 4, 1901, P. L. 431. It is whether a subcontractor whose agreement to furnish materials and labor made after a conveyance to a new purchaser, is bound by the contract between the original owner and the contractor, filed of record and containing a waiver of liens. The owner at the time the building contract was entered into, in order to protect himself against liens, caused to be inserted therein a waiver clause and then filed this agreement in writing of record. Subsequently and while the building was being constructed, the owner conveyed the property to the appellee, the present owner. The contention of appellant is that under these circumstances appellee cannot claim the protection of the waiver clause in the building contract. Two of our recent cases are relied on to sustain this position. They are Wyss-Thalman v. Beaver Valley Brewing Company, 216 Pa. 435, and Pagnacco v. Faber, 221 Pa. 326. This court did not intend to announce any such doctrine in these cases, nor is anything said in those opinions reasonably susceptible of the meaning now attempted to be taken from what was there written. These cases recognized the right of the contracting parties, or of subsequent parties standing in the place of the original parties, to make a new contract binding upon them, containing a covenant not to file a lien, or by failing to provide for a waiver of liens in the new contract to have waived the protection of the original contract which was superseded by the new agreement. In other words, that if either the original or subsequent contracting parties thought proper to enter into a new contract containing new terms and provisions it was within their rights so to do, and if such a contract were made the parties would be bound by its terms. No new princi-. pie was announced, and the law was neither modified nor changed by anything decided or discussed in these cases. They turned upon their facts and were properly decided. In the case at bar there was no new contract. The building was erected from beginning to completion under the original contract. The rights and duties of the parties were fixed by that contract. The materials and labor were furnished under that contract. The notice as to the waiver of liens filed of record bound everyone who furnished materials or labor under that contract. The mere fact that the original owner, holder of the legal or equitable title, afterwards conveyed to either the real owner, or a new purchaser, in no way affected the terms and conditions of the building contract, which remained unchanged throughout the whole period of construction. It therefore follows that no new contract was entered into in the present case and all the terms and conditions of the old contract are in force and effect.

Order of the court below discharging rule for judgment for want of a sufficient affidavit of defense affirmed at the cost of appellant.


text:
    American Ice Company, Appellant, v. Pennsylvania Railroad Company.

      Railroads — Negligence—Sparks—Evidence.
    In an action against a railroad company to recover damages for the burning of property alleged to have been caused by sparks, where there is no evidence whatever that sparks were emitted from a passing engine and fell on or near the building destroyed, and might have caused the fire, the negligence alleged cannot be established by evidence of other acts of a similar character before and after the fire, which only tend to show negligent habit.
    April 12, 1909:
    Argued March 24, 1909.
    Appeal, No. 78, Jan. T., 1909, by-plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1907, No. 1,451, refusing to take off nonsuit in case of American Ice Company v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for burning of property alleged to have been caused by sparks from a locomotive. Before Ferguson, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Frank R. Savidge, for appellants. —
    The rule in cases of this character, which is followed almost universally, and reaffirmed by this court in Henderson v. Railroad Co., 144 Pa. 461, is that the evidence may be wholly circumstantial: Penna. R. R. Co. v. Stranahan, 79 Pa. 405; Gowen v. Glaser, 3 Cent. Repr. 109; Grand Trunk R. R. Co. v. Richardson, 91 U. S. 454; Koontz v. Oregon Ry. & Nav. Co., 43 Am. & Eng. R. R. Cases, 11; Huyett v. Railroad Co., 23 Pa. 374; Van Steuben v. Cent. R. R. Co., 178 Pa. 367; Cincinnati, etc., Ry. Co. v. Cecil, 90 S. W. Repr. 585; Chesapeake, etc., Ry. Co. v. Richardson 99 S. W. Repr. 642; Peck v. Railroad Co., 165 N. Y. 347 (50 N. E. Repr. 206); Hitchner Wall Paper Co. v. Penna. R. R. Co., 158 Fed. Repr. 1011.

      John Hampton Barnes, for appellee.
   Opinion by

Mr. Justice Elkin,

This case was very carefully considered by the trial judge and intelligently reviewed by the court in banc. It has been ably argued by learned counsel on both sides before us. We have examined the cases cited and the record presented with the result that no error has been found upon which to base a reversal. The nonsuit was properly granted and the refusal to take it off was not error. The fire is alleged to have been caused by sparks negligently emitted from the locomotives of the appellee company. The general rule is that negligence is never presumed, it must be affirmatively proven. There is nothing in the present case to justify a departure from this well-settled and wholesome rule. There is no direct evidence to show that the railroad company caused the fire. Not a single witness testified that he had seen any sparks negligently or otherwise emitted from locomotives of appellee at or near the time of the fire, nor was any locomotive identified as being-near the building when the fire started. Indeed, there is no testimony to show how, or exactly where, the fire started, or from what cause it originated. It is all guess or conjecture. There being no direct testinaonj'- the learned trial judge In a spirit of fairness opened the door very wide for the introduction of circumstantial evidence under the rule which allows reasonable latitude in the offer of proof in this class of cases. Certainly, the appellant cannot complain because reasonable latitude was not allowed in the case at .bar. The latitude allowed at the trial was not only reasonable but it was so full and wide that every opportunity was given to introduce items of testimony which to say the least were very remote. If there was any error in this respect it is not such as could be complained of by appellant. This character of testimony is admissible in aid of an inference to be drawn when it is shown that at about the time of the burning, sparks were emitted from a passing engine and fell on or near the building destroyed and might have caused the fire. But in no case in this state has it ever been held that a jury could by guess or conjecture draw an inference that the fire was started in this manner from such remote circumstances alone, when there was no evidence to show that at or near the time of the fire sparks had been emitted from the locomotives of a company charged with such negligence. In most of the cases there was direct evidence that sparks had been emitted at or immediately before the burning, and in some instances ashes or cinders from engines were found upon the burned premises. Under such circumstances the courts allowed testimony tending to show other acts of a similar character before and after the fire for the purpose of proving negligent habit. In the case at bar the attempt is made to go one step farther by holding that not only the negligent habit may be shown by these remote circumstances but that the negligence charged, namely, the cause of the fire itself, may be established by this kind of testimony. Our cases do not so hold and we are not convinced that the rule should be so extended. Such a rule would necessarily relieve the party claiming damages from the burden of establishing by sufficient evidence the negligence charged. It would be a clear departure from settled principles and would be an unwise extension of the rule. The evidence did not show that appellant had been habitually negligent in the equipment or management of its engines, or any of them, and that frequent'fires were started in consequence. ■It did show that the locomotives were equipped with standard spark arresters and were properly repaired and inspected from time to time. There can be no recovery in this case because appellant failed to prove what caused the fire or that the railroad company had anything to do with starting it.

Assigments of error overruled and judgment affirmed.


text:
    Knickerbocker Ice Company, Appellant, v. Pennsylvania Railroad Company.
    April 12, 1909:
    Argued March 24, 1909.
    Appeal, No. 79, Jan. T., 1909, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1907, No. 1,452, refusing to take off nonsuit in case of the Knickerbocker Ice Company v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
   Opinion by

Mr. Justice Elkin,

For the reasons stated in the opinion handed down in the case of American Ice Company v. Pennsylvania Railroad Company at No. 78, January Term, 1909, ante, p. 439, judgment of nonsuit is affirmed.


text:
    McFadden’s Estate.

      Mines and mining — Principal and income — Coal royalties — Life estate.

    Where a testator devises the residue of his estate to a trustee to -pay the net income therefrom to testator’s wife for life and the principal over, with no power of sale, royalties from a coal lease of land with no open mine thereon, made by the trustee after the testator’s death, are to be considered principal and not income; and this is the case although the testator in his lifetime agreed to lease another tract of coal land adjoining the tract leased by the trustee, and a mine was opened thereon in testator’s lifetime.
    Argued March 26, 1909.
    Appeal, No. 56, Jan. T., 1909, by the Equitable Trust Company, trustee, from decree of O. C. Phila. Co., July T., 1895, No. 15, dismissing exceptions to adjudication in estate of Charles McFadden, deceased.
    Before Mitchell, C. J., Fell, Mesteezat, Elkin and Stewaet, JJ.
    Reversed.
    Exceptions to adjudication of Andeeson, J.
    From the record it appeared that Charles McFadden at his death in 1895, owned the coal underlying about 2,400 acres of land within Cambria county, Pennsylvania. This he acquired by purchase from various persons, in some cases acquiring also the surface and in other cases only the coal. Prior to his death he made a verbal agreement with the Black Lick Mining Company to make a lease of part of this land, and under this arrangement a mine was opened and coal extracted by the company. In execution of this agreement after his death his executors under due authority leased this tract to the mining company which from that time up to the present has been engaged in mining coal therefrom and has now practically exhausted the coal upon the vein opened within the boundaries of the tract leased to it.
    The will of Charles McFadden after sundry bequests and devises of personal and real property gave the rest, residue and remainder of his estate unto the Equitable Trust Company in trust “to invest, reinvest and keep the same safely invested and to pay the net income arising therefrom in equal quarterly payments unto my wife, Sarah Amanda, as long as she shall live.” The royalties arising under the lease above referred to have since its execution been paid over to the widow. The will conferred no power of sale upon the trustee with respect to the residuary estate.
    In 1907, the trustee made application to the orphans' court of Cambria county, under the Price act and under due proceedings received authority to make a mining lease to the same company for the coal in .the same vein and underlying another portion of the land owned by Mr. McFadden in his lifetime and adjoining the tract included in the lease of 1895. The widow claimed that the royalties received by the trustee under this lease were income under the terms of the will.
    The claim was allowed by the auditing judge and by the court in banc.

      Error assigned was decree dismissing exceptions to adjudication.

      H. B. Gill, with him John R. Read and Louis B. Runk, for appellant. —
    It would seem to be settled that where the lease is made in the lifetime of the testator or where the lease is made by the trustee under a power given in the will to make the lease, the royalties are to be considered as income and paid to the life tenants, the effect in the latter case being said to be the same as if the lease had been made by the testator in his lifetime and at least as evidencing his intention of empowering his trustees to make the coal productive of profit for the benefit of the life tenants.
    No case, however, so far as counsel has been able to ascertain, has laid down the rule that where the trustee has no power of sale or lease under the will that the purchase price of the coal, whether it be a lump sum or by periodical payments mined, is to be considered as income for the life tenant: Blakely v. Marshall, 174 Pa. 425.
    April 12, 1909:

      John G. Johnson, with him Maurice Bower Saul, for appellee. —
    The life tenant, without impeachment for waste, may sink new shafts upon the same vein in order that the coal may be more easily mined: Kier v. Peterson, 41 Pa. 357; Sayers v. Hoskinson, 110 Pa. 473.
    It is argued by the appellant that the lack of power in the trustee to lease or sell under the will of the testator takes this case from the rulings of this court in numerous decisions upon similar questions. It is, however, difficult to see the force of their contention upon an examination of the cases: Wentz’s Appeal, 106 Pa. 301; McClintock v. Dana, 106 Pa. 386; Eley’s App., 103 Pa. 300; Woodburn’s Est., 138 Pa. 606; Shoemaker’s App., 106 Pa. 392; Bedford’s App., 126 Pa. 117; Duffy’s Est., 209 Pa. 390.
    The right of the appellee is to receive the income from the opened mine — her rights are the rights of the testator and the vein may be pursued to the boundaries of the tract and even exhausted: Westmoreland Coal Co.’s Appeal, 85 Pa. 344.
    It is immaterial for what purpose the mine was opened. It is not necessary that coal be actually mined and sold to constitute an opened mine: Neel v. Neel, 19 Pa. 323.
   Opinion by

Mr. Justice Elkin,

The question to be determined here is whether the royalties required to be paid under the coal mining lease executed by virtue of the authority and decree of the orphans’ court of Cambria county in 1908, shall be deemed income payable to the widow under the terms of the will, or shall they pass into the residuary estate as principal to be invested by the trustee, the income only of the invested sum to be paid the widow. There is no difficulty as to the application of the underlying principles upon which the decision of this case rests. If the coal lands described in the lease had been sold under a decree of court at a fixed price or consideration, there can be no question but that the thing sold would be under these circumstances part of the corpus of the estate, and the amount received in payment of the thing sold would be principal. Nor is it open to doubt, under the settled rule of our cases, that a lease to mine all the coal underlying a tract of land described in the conveyance upon the payment of certain specified royalties, amounts to and is the equivalent of a sale of the coal in place. The right to mine the coal to exhaustion is the equivalent of a grant of all the coal, and the payment for the coal mined at a certain rate per ton is the consideration price paid. If there was nothing else in the case there could be only one answer to the question here raised, and that answer is, that the royalties represent the purchase price and should be treated as principal. It is contended, however, and the learned orphans’ court below took this view of the question, that the intention of the testator was to give these royalties as income to his wife, or if the testator did not so provide, the widow as tenant for life took the royalties as income under the common-law rule followed in our state which gives the life tenant the right to mine opened mines to exhaustion without being chargeable with waste and to enjoy the profits arising therefrom. We cannot agree that the intention of the testator shown by the residuary clause or from the four comers of the will justifies such a conclusion. The wife was given the income of the corpus of the residuary estate, the title to which passed under the terms of the will to the trustee. The coal lands in question were part of the corpus of the trust estate. The will did not provide for a sale or conversion of these lands. There were no open mines on the particular lands described in the lease above referred to. Under these circumstances, how can it be said that the testator intended his wife to take as income what he held as corpus and for the sale or conversion of which he made no provision? Clearly, the intention of the testator to give to his wife as income royalties not contracted for at the time of his death, and which were not then contemplated or provided for, cannot be gathered from the terms of the will itself, nor from any other source.

The settled rule that it is not waste about which remainder-men can complain for a life tenant to work an open mine to exhaustion has no application to the facts of the case at bar. It is very doubtful whether the widow here is a life tenant within the meaning of the rule. The common-law rule rested on a very different foundation. It had its origin in a case where the testator had devised a tract of land, limited in area, on which was an open mine, to one for life, and then- over to others. The question arose whether it was waste for the life tenant under these circumstances to mine, use and sell coal from a mine opened in the lifetime of testator. It was held not to be waste and that the life tenant had the right to pursue the mine even to exhaustion. This rule found favor in our earlier cases and has become a rule of property in Pennsylvania. There is no disposition to weaken or destroy it and it must be considered as settled law when the facts of a case justify its application. The rule, however, has its limitations, and must not be unduly and unreasonably extended. As, for instance, suppose the testator in the present case was possessed at the time of his death of a homestead farm containing 200 acres upon which there was an open mine for country use, and adjacent to the homestead he owned 10,000 acres of undeveloped mineral lands, could it be seriously contended that because the life tenant could work the open mine on the homestead to exhaustion, that this included the right to lease upon royalty the coal underlying the 10,000 acres of mineral lands and to receive the consideration paid in royalties to the exclusion of the remainder-men. No reasonable interpretation of the rule can make it applicable to such a state of facts. Such a situation was not contemplated when the rule was first announced and it would do violence to the spirit and purpose of it to require its application under such circumstances. In the present case there was an outstanding lease for a limited number of acres belonging to the testator at the time of his death upon which there was a mining operation. There were at least two openings on this property, but these lands were segregated from the other lands of the testator by lease itself, and there can be no reason in law or equity why the rule should be extended beyond the boundaries fixed by the testator himself. We hold, therefore, that there was no open mine in the lifetime of the testator on the lands included in the lease of 1908 and the rule as to the rights of a life tenant does not apply. The royalties received, or to be received, under the terms of this lease are principal and not income and should be so regarded and treated.

Decree reversed and record remitted with instructions to make the distribution in accordance with the views herein stated. Costs to be paid out of the trust estate.


text:
    Millard, Appellant, v. Delaware, Lackawanna & Western Railroad Company.

      Payment — Voluntary payment — Mistakes—Taxes on coal severed from surface.

    In an action by the owner of the surface who had' severed his title to the coal underneath by an indenture called a coal lease, to recover from the owner of the coal the amount of several years of taxes on the coal which the plaintiff alleged had been assessed against him, and had been paid by him in mistake, an affidavit of defense is sufficient to prevent judgment, which indicates that the taxes were paid under a mistake of law and not under a mistake of fact.
    Argued Feb. 23, 1909.
    Appeal, No. 388, Jan. T., 1909, by plaintiffs, from order of C. P. Lackawanna Co., March T. 1908, No. 1,016, discharging rule for judgment for want of a sufficient affidavit of defense - in case of Stephen C. Millard, Executor of the Estate of Abel Bennett et ah, v. The Delaware, Lackawanna & Western Railroad Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover taxes alleged to have been made by mistake.
    Rule for judgment for want of a sufficient affidavit of defense.

      Newcomb, J., filed the following opinion:
    The equities here are apparently with the plaintiffs. But on the question of their legal right to recover the case is close. If the exact facts were before us on a case stated it could be determined at this time.
    The plaintiffs, or those whom they represent, were owners in fee of a tract of seated land in this city. Many years ago title to all the coal therein minable at an agreed standard of profit was severed by their indenture called a “coal lease” and became vested in the defendant. The term of the lease was during such time as should be required to exhaust the coal at the stipulated rate of production. The lessee went into possession accordingly, has been in possession of the demised premises ever since, and the lease is still* operative. As owner it thus became personally liable to assessment thereafter for the tax on the unmined coal to which it took title. How the taxes were assessed during the earlier years does not ap"pear. From 1902 to 1906, inclusive, they were assessed against the lessors and paid without compulsion by the plaintiffs as their representatives. No actual notice of the assessment was brought home to defendant, nor was it requested to pay the taxes.
    The sole question, it is believed, is whether there is enough on the present showing to take the case out of the general rule as to voluntary payments. That was the only question discussed at the argument, although by a brief submitted in the meantime another one is sought to be raised by defendant. It takes the ground that the lease is capable of being construed 'as implying an agreement on the part of the lessors to pay the taxes, and that the continuous payment by them from the start shows such construction by the parties, thereby determining its construction by the court.
    This position is believed to be untenable. In the first place it nowhere distinctly appears that the taxes were so paid from the start. In the second place the conduct of the parties is never resorted to for such-purpose except where the terms of théir written contract are ambiguous. In this instance there is'no ambiguity. So far as they undertook to say anything in the paper on the subject of taxes their meaning was expressed clearly and without uncertainty. With any supposed uncertainty of intention about things as to which they did not attempt to have the writing speak its construction has nothing to do. It is the meaning of the terms employed, not those omitted, which, if uncertain, may be inferred from the conduct of the parties to the writing.
    But, while the defendant’s contention in this particular is not well founded, it suggests the crucial point in this case as it is now presented.
    The plaintiffs aver payment by mistake of that which defendant of right ought to have paid, and thus invoke the equitable principle of unjust enrichment. The averments are that the taxes on the coal estate were assessed against the lessors by mistake of the taxing officers, and by them paid on the mistaken assumption that the assessment was on such estate as they still had in the demised premises. Upon this it is urged that the payment cannot be regarded as intrusive because it is presumed to have been in relief of plaintiffs’ interest, an estate in the nature of a reversion after the exhaustion of all veins minable at the standard of profit defined in the lease. Other than the assertion in the first affidavit of defense that the payment was in conformity with the terms of the lease, the averment of mistake is only formally denied. As this is an essential averment, it may be questioned whether it is fairly controverted by a mere naked denial amounting to no more than the affiant’s conclusion. Be that as it may, when it is considered that so far as concerns the legal liability to assessment the status of the parties was fixed by the character of the lease, together with the subject-matter of the payments, the quantity of the coal and the amount of the taxes as assessed from year to year, coupled with plaintiffs’ failure to make demand on the defendant, or seek to have the assessment transferred, the question inevitably arises: “Was not the mistake merely one of law?” In other words, on the whole case as now presented the plaintiffs fail to make it clear that the payments were made otherwise than in ignorance of the effect of the lease as fixing the defendant’s liability. So, while it is apparent that there was no stipulation, either expressed or implied, on the part of the lessors to pay these taxes, it is doubtful whether they did not pay them because they assumed they were legally liable in the absence of an agreement to the contrary. If that be so, the mistake involved would be one of law and not of fact. I do not understand that a mere mistake as to a legal right or liability where one has knowledge or means of knowledge of the facts will make such payment involuntary or warrant a recovery, even though it be against conscience for the defendant to retain its benefit: Keener on Quasi Contracts, 85-112; Real Estate Sav. Inst. v. Linder et ux., 74 Pa. 371; Gould v. McFall, 118 Pa. 455.
    The learned counsel for the plaintiffs relies upon the doctrine of Iron City Tool Works v. Long & Co., 4 Sad. 57, and kindred cases. But there the mistake was one of fact and was so found by a jury. In Hogg v. Longstreth, 97 Pa. 255, the taxes had been assessed against the defendant personally while in possession as owner. The land was subject to a mortgage which was afterwards foreclosed against the mortgagor and the defendant as terre-tenant. Becoming the purchaser at the foreclosure sale, plaintiff went into possession and was then compelled to pay defendant’s taxes in part to prevent a sale of the land on tax liens, which had been put in judgment, and the balance to save his personal property from seizure by the tax collector. Manifestly these facts repelled any inference of a voluntary payment. So here, if the assessments had been against the defendant and the plaintiffs had paid the taxes to prevent a sale after defendant’s refusal to pay, a different question would be presented. But having paid the taxes repeatedly without compulsion or question as to who ought to pay them, the plaintiffs’ right to recover as for an involuntary payment is not free from doubt on this motion. To doubt in such case is to decide in favor of its submission to a jury.
    The rule for judgment is discharged.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      John S. Harding, with him W. J. Torrey, for appellants.

      April 12, 1909:

      Everett Warren, of Willard, Warren & Knapp, with him D. R. Reese, for appellee.
   Per Curiam,

The order discharging the rule for judgment is fully sustained by the reasons stated in the opinion of the learned judge of the common pleas, and it is now affirmed.


author: Mr. Justice Brown,

text:
    Baeder’s Estate.

      Husband and wife — Assignment—Contingent interest in estate — Consideration — Want of consideration — Acknowledgment.
    1. An assignment by a wife of an expectancy of an interest in the income from her father-in-law’s estate contingent upon her surviving her husband, in consideration of the conveyance to her of several valuable pieces of real estate and the cancellation of a large debt of het husband to the assignee, cannot be sustained because of the provision for the cancellation of the husband’s debt, if the assignee refuses to convey to the assignor the real estate mentioned in the assignment.
    2. Such an assignment is not valid at law at the time it is executed, but is merely an executory agreement to be equitably enforced when the interest which it is intended to convey vests in the assignor. If the assignee fails to deliver the valuable consideration moving directly to the assignor, he cannot call for performance by her. It may be that without the consideration moving directly to her she would not have assigned her interest merely to secure the payment of her husband’s indebtedness.
    3. Although an assignment acknowledges the receipt of the conveyance of certain properties which were the consideration for the assignment, such acknowledgment is not conclusive.
    Argued Feb. 2, 1909.
    Appeal, No. 185, Jan. T., 1908, by Bertha L. Baeder, from decree of O. C. Montgomery Co., Oct. T., 1907, No. 26, sustaining exceptions to adjudication in Estate of Charles Baeder, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Exceptions to adjudication. Before Solly, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining exceptions to adjudication.

      John G. Johnson, with him Maurice Bower Saul, for appellant. —
    The acknowledgment was not conclusive: Nichols v. Nichols, 133 Pa. 438; McPherran’s Est., 212 Pa. 425.
    The assignment by the appellant was of her interest under the will of Charles Baeder, deceased. Assuming that under the. seventh clause of his will she was entitled in the event of her survival of her husband to the income of one-third of the share which her husband was entitled to receive during his lifetime, her interest was contingent upon her surviving her husband, and her assignment thereof, invalid at common law, was only enforceable upon equitable principles if made upon a valid consideration.
    That a pre-existing debt of her husband is not such a consideration has been decided by this court in a case where the facts are very similar: Bayler v. Commonwealth, 40 Pa. 37; Lenning’s Est., 182 Pa. 485; Kuhns’s Est., 163 Pa. 438.

      Bernard Gilpin, for appellee. —
    That there was a debt due by H. H. Baeder to appellee makes the validity of the assignment indisputable, for under the decisions the debt which is the consideration for such an assignment may be the debt of the assignor, her husband or a stranger: Hagenbuch v. Phillips, 112 Pa. 284; Dubois Deposit Bank v. Kuntz, 175 Pa. 432; Dando’s App., 94 Pa. 76; Kulp v. Brant, 162 Pa. 222; Haffey v. Carey, 73 Pa. 431; Lytle’s App., 36 Pa. 131; Kuhn v. Ogilvie, 178 Pa. 303; Siebert v. Bank, 186 Pa. 233; Dusenberry v. Mut. Life Ins. Co. 188 Pa. 454; Herr v. Reinoehl, 209 Pa. 483.
    Appellant had an actual estate, or interest in the estate of Charles Baeder, deceased, when the deed of February 8, 1887, was executed, Charles Baeder having died September 25,1886, and while it was as in Herr v. Reinoehl, 209 Pa. 483, and Kulp v. Brant, 162 Pa. 222, defeasible during the lifetime of her husband, it became absolute on the death of her husband, on June 5,1907.
    That such an estate will pass by deed or assignment has been settled by the decisions in Churchman’s Estate, 20 Weekly Notes of Cases, 367, affirmed in Churchman’s Appeal, 22 Weekly Notes of Cases, 131.
    April 19, 1909:
   Opinion by

Mr. Justice Brown,

The assignment of Bertha L. Baeder, the appellant, to Howard R. Kern is void for want of consideration. This was the first and correct view of the court below and ought to have been adhered to on the exceptions to the adjudication.

The consideration moving to the appellant in executing the assignment with her husband was the procuring of a conveyance to her by Kern of twelve properties in the city of Philadelphia, having a value above the incumbrances against them .of $29,200, and then follows a consideration of the husband’s existing indebtedness to the assignee of $10,000. Though the assignment acknowledges the receipt of the conveyance of the properties, such acknowledgment is not conclusive: Nichols v. Nichols, 133 Pa. 438; McPherran’s Estate, 212 Pa. 425. Under competent evidence the court found as a fact that there had been no conveyance of the properties to the appellant; but because the assignment was to secure to Kern the payment of $10,000 of the husband’s existing indebtedness, it was held to be valid for that purpose. This was error. Even if the wife could have pledged her contingent interest in the estate of her father-in-law to secure the $10,000 indebtedness of her husband, and an assignment for that purpose alone held by the appellee would be valid, he holds no such assignment. The one under which he claims contains a valuable consideration moving directly to the appellant, but, as a matter of fact, she never received it, and non constat that without the inducement so held out to her directly she would have assigned her interest in the estate merely to secure the payment of her husband’s indebtedness. Her assignment was of but an expectancy of an interest in the income from her father-in-law’s estate, contingent upon . her surviving her husband. If she died before him, she was to get nothing from the estate. Such an assignment is not valid at law at the time it is executed, but is merely an executory agreement to be equitably enforced when the interest which it is intended to convey vests in the assignor: Bayler v. Commonwealth, 40 Pa. 37; Ruple v. Bindley, 91 Pa. 296; Whelen v. Phillips, 151 Pa. 312. Kern is to be regarded as seeking to enforce performance of the agreement with him. He has not performed, and cannot, therefore, call for performance by the appellant./ Other questions raised need not be considered.

The assignments of error are sustained, the decree of the court below is reversed and the adjudication is directed to be confirmed absolutely, the costs on this appeal to be paid by the appellee.