text:
    Breckons v. Snyder, Appellant.

      Bankruptcy—Suit by trustee—Evidence.

    In an action by the trustee of a bankrupt to recover money alleged to have been paid by the bankrupt, prior to the bankruptcy of the defendant, in satisfaction of a debt, where the question at issue is not whether there was a preferential transfer within the time prohibited by law, but whether a debt had existed and had been paid, it is not necessary for the plaintiff to show that there were unsatisfied creditors at the time of the transfer, at the time suit was brought, and at the time of the trial.

      Bankruptcy—Jurisdiction—Common pleas.

    The court of common pleas has jurisdiction to entertain a suit by a trustee in bankruptcy against a person holding and claiming as his own money alleged to have been paid to him by the bankrupt in fraud of creditors.

      Bankruptcy—Suit by trustee—Trustee’s bond—Extension of time for filing bond—Presumption.

    In an action by a trustee in bankruptcy to recover property of the bankrupt, the defendant' cannot object to the qualification of the.trustee because the record did not show that the trustee had obtained an extension of time for the filing of his bond two days after the expiration of the ten days provided by the act of Congress. In such a case the presumption is iñ ' favor of the regularity of all proceedings before thé referee, and that the trustee complied with all the requirements of the law, and was qualified to act.

      Bankruptcy—Suit by trustee—Evidence.

    In an action by a trustee in bankruptcy against a person who is alleged to have money of the bankrupt in his hands, the notes of the testimony of the bankrupt taken at a preliminary proceeding before the referee to ascertain the bankrupt’s assets and liabilities, are inadmissible in evidence.. The issue is not between the same parties, nor does it involve the same subject-matter.
    Argued Feb. 13, 1905.
    Appeal, No. 163, Jan. T., 1904, by defendant, from judgment of C. P. Schuylkill Co., July T., 1902, No. 235, on verdict for plaintiff in case of Charles E. B reckons, Trustee of William D. Chimelewsky v. William Snyder.
    Before Mitchell, C. J., Dean, Fell, Mestjrezat and Elkin, JJ.
    Affirmed.
    Assumpsit by a trustee in bankruptcy to recover moneys of bankrupt.
    At the trial defendant presented the following points:
    1. That under the constitution of the United States, the judicial power of the federal courts extends to all cases in law and equity arising under the constitution and the laws of the United States, etc., and that the plaintiff’s alleged cause of action in this case arising under the provisions of the act of congress passed in 1898, known as the national bankruptcy acts, this case is one arising under the laws of the United States, and consequently within the jurisdiction of the federal courts, and such jurisdiction is necessarily exclusive, and the state courts have no jurisdiction over cases of this character, and the provisions in the act of 1898 purporting to confer jurisdiction in such cases on the state courts is unconstitutional and inoperative. Therefore this court has no jurisdiction in the premises, and the cause must be dismissed for want of jurisdiction. Answer.» Befused. [1]
    2. That as shown in the plaintiff’s statement of his claim and cause of action, as filed 'in this cause, the said plaintiff was elected trustee in bankruptcy of tbe estate of said Chimelewsky on June 2, 1902. Under section 50 of said act of congress it was the duty of said trustee, before entering upon the performance of his official duties, and within ten days after his official appointment, or within such further time, not to exceed five days, as the court may permit, qualify by entering into bond to the United States, with such sureties as shall be approved by the court, conditioned for the faithful performance of his duties. As the record shows, the bond so required to be executed by the trustee within ten days after his election was not executed by him, nor approved, even by the referee in bankruptcy, within ten days after his appointment, nor was there any order of court extending the time, as provided for in said clause, and therefore the trustee failed to qualify as required by the act of congress, and under clause K, of section 50, he shall be deemed to have declined his appointment, and such failure shall create a vacancy in his office.
    Therefore, the plaintiff was not the legally constituted trustee of said estate on June 21,1902, when he brought the present action, and such action was, therefore, unauthorized and cannot be sustained by the plaintiff, and hence the verdict of the jury must be for tbe defendant. Answer : Refused. [2]
    3. The approval of such bond by the referee on June 14,1902, was without authority, the time for the presentation and approval of such bond having passed, and, further, also because the approval by the referee is not such approval by the court, as is required by the act of congress, and, therefore, plaintiff cannot sustain this action. Answer: Refused. [3]
    4. Clause H of section 50 of the act of congress of 1898 requires the bond of the trustee to be filed of record in the office of the clerk of the court, and it is incumbent upon the trustee to file his bond as thus required before entering upon the duties of his office, and before he can institute any suit or action in behalf of the estate against anybody. As the record shows the bond of the plaintiff was not filed in the office of the clerk of the court until September 23, 1903, being over fifteen months after the present suit was brought by this plaintiff, the plaintiff was not legally qualified and authorized on June 21, 1902, when he brought this action, to institute any suit or action in behalf of said estate, and cannot recover in the present action, and the verdict of the jury must be for the defendant. Answer : Refused. [4]
    5. That it is incumbent upon the plaintiff in such case as' the present to aver’the insolvency of the bankrupt at the time of the transaction in question, February 17, 1902, and also that at that time there were other creditors of the alleged bankrupt for whose use and benefit the present action is being prosecuted, and the plaintiff having failed to do so at the trial of this cause, he cannot recover and the verdict of the jury must be for the defendant. Answer : The certificate of adjudication of bankruptcy, made by a court of competent jurisdiction, discloses that William Chimelewsky was adjudged a bankrupt on April 29, 1902, upon the petition of Rothschild & Baum, Schwartz, Strouse & Company and L. Strouse & Company, from which it is evident that such petitioners were creditors of William Chimelewsky at the time of the referred to adjudication ; and we do not think that the trustee is called upon to show that these creditors were paid before proceding with this case. We, therefore, refuse this request. [5]
    6. That the first count in plaintiff’s statement charges that Chimelewsky, with intent to cheat and defraud his creditors, gave to the defendant the sum of $5,000 without consideration, and the defendant accepted the same for the purpose of cheating and defrauding the creditors of said Chimelewsky, for there is no evidence in this case that the. said Chimelewsky had any other creditors at the time in question, or that anybody was injured or prejudiced by the transactions here complained of, and, therefore, the plaintiff has failed to make out his case, and the verdict of the jury must be for the defendant. Answer: The sixth request is refused and, therefore, not read. [6]
    9. That under all the evidence in this case, the plaintiff has failed to sustain his claim as to the first count in the statement or declaration filed by him in this case, and' as to this count the verdict of the jury must be for the defendant. Answer: The ninth and fourteenth requests are refused and, therefore, not read. [7]
    14. Tliat the said Chimelewsky himself could not recover at law from this defendant the money paid him, even if such payment had been made for an improper purpose, and the rights of the present plaintiff are no greater than those of Chimelewsky himself would be, unless it be shown that'Chimelewsky had creditors who were injured or prejudiced by the alleged improper conduct of the parties, and that he is prosecuting this case in behalf of such injured persons, and there being no such evidence in this case, the plaintiff cannot recover. Answer ; The ninth and fourteenth requests are refused and, therefore, not read. [9]
    Verdict and judgment for plaintiff for 15,579.53. Defendant appealed.

      Errors assigned were (1-9) above instructions, quoting them; (13, 14, 15, 16) refusal to admit notes of the testimony of the bankrupt taken at a preliminary proceeding before the referee.

      A. W. Schalclc, with him W. J. Whitehouse and W. B. Seltzer, for appellant.
    The court had no jurisdiction: Martin v. Hunter, 14 U. S. 304 ; Houston v. Moore, 18 U. S. l; Robertson v. Baldwin, 165 U. S. 275 (17 Sup. Ct. Repr. 326) ; Osborn v. United States Bank, 22 U. S. 738 ; Cohens v. Virginia, 19 U. S. 264; Rump v. Com., 30 Pa. 475; Com. ex rel. v. Ketner, 92 Pa. 372; Allen v. Carter, 119 Pa. 192.
    The trustee had no authority to bring suit before filing his bond with the clerk of the court.
    In a suit to set aside a preference or a conveyance, the burden of proof is on the trustee to establish that the preference or transfer is fraudulent under the bankruptcy act: Mueller v. Bruss, 112 Wis. 406 (88 N. W. Repr. 229) ; Benedict v. Deshel, 11 Am. Bank Rep. 20; Gamble v. Elkin, 205 Pa. 226 ; Keith v. Gettysburg Nat. Bank, 23 Pa. Superior Ct. 14 ; In re Chappell, 7 Am. Bank. Rep. 608; Levor v. Seiter, 8 Am. Bank. Rep. 459; Sherman v. Luckhardt, 9 Am. Bank. Rep. 307.
    The declarations of a bankrupt made before the referee in bankruptcy are admissible as evidence against his assignee in bankruptcy: Smallcombe v. Bruges, 13 Price, 136; In re Clark, 9 Blatchf (U. S.) 379; Compton v. Fleming, 8 Blackf. (Ind.) 153; Goodrich v. Wilson, 119 Mass. 429; Von Sachs v. Kretz, 72 N. Y. 548 ; Barber v. Terrell, 54 Ga. 146; Weinrich v. Porter, 47 Mo. 293; Adams v. Davidson, 10 N. Y. 309 ; Bullis v. Montgomery, 3 Lans. (N. Y.) 255; Vidvard v. Powers, 34 Hun (N. Y), 221; Truax v. Slater, 86 N. Y. 630 ; Jones v. East Society of M. E. Church, 21 Barb. (N. Y.). 161; Klein v. The Franklin Ins. Co., 13 Pa. 247.

      Edmund D. Smith, with him Charles E. Breehons and M. M. Burke, for appellee.
    The common pleas had jurisdiction : Bardes v. First Nat. Bank of Hawarden, 178 U. S. 524 (20 Sup. Ct. Repr. 1000).
    Referees are judicial or quasi judicial officers, and the presumption of law is in favor of the regularity of all their acts.
    It was not necessary for the plaintiff to show the existence of unsatisfied creditors at the time of the transfer, at the time, of suit brought, and at the time of trial: Pirie v. Chicago Title & Trust Co., 182 U. S. 438 (21 Sup. Ct. Repr. 906); Carr v. Hilton, 5 Fed. Cases, 134.
    The testimony of'Chimelewsky was properly rejected : Eyster v. Gaff, 91 U. S. 521.
    March 6, 1905:
   Opinion by

Mb. Justice Fell,

A petition in bankruptcy was filed by the creditors of W. D. Chimelewsky on March 14, 1902, and was so proceeded with that he was adjudged a bankrupt on April 29, 1902. This action was brought by the trustee of his estate to 'recover of’the defendant f>5,000 transferred to him by the bankrupt on February 17, 1902. The declaration contained two counts.' In the first it was alleged that the money had béen given to the defendant without any consideration and with the intent to defraud the bankrupt’s creditors and for this purpose it was received and retained by the defendant;'in the second it was alleged that the money was paid after insolvency and within four months of the filing of the petition in bankruptcy for the purpose of giving the defendant a preference over other creditors. The second count was withdrawn at the trial, and the case went to the. jury on the issue raised by the first, the .'plaintiff’s contention being that the money had been placed by the bankrupt in the defendant’s hands for concealment, and the defendant’s that he had', received it in discharge of a debt due him by the bankrupt. These contentions were submitted to the jury with instruction that if the transaction was the payment of a debt due the defendant, their verdict should be for him ; that if they disbelieved his testimony and found that the bankrupt did not owe him the money, their verdict should be for the plaintiff.

In support of a number of assignments of error which raise the question in different forms it is argued that it was incumbent on the plaintiff to show that there were unsatisfied creditors at the time of the transfer, at the time the suit was brought, and at the time of the trial, for the reason that if there were no creditors when the transfer was made, there was no one to be defrauded by it, and if there were none afterwards there was no one in whose interest the trustee could maintain the action. The first ground of objection would not be without merit if a recovery had been sought because of a preferential transfer within the time prohibited by law.. But the second count was withdrawn and the only issue at the trial was whether a debt had existed and had been paid. No other right to retain the money was set up. If it had not been given to the defendant in discharge of a debt, it was the bankrupt’s money in the defendant’s hands, which the trustee could recover for creditors. The adjudication was evidence of the bankrupt’s insolvency at its date, and.it was not necessary to prove insolvency at the trial.

The remaining assignments do not require discussion. The court had jurisdiction because it was the court that would have had jurisdiction if bankruptcy had not intervened: Bardes v. First National Bank of Hawarden, 178 U. S. 524. Although it does not appear of record that the trustee obtained an extension of time for the filing of a bond, the presumption is in favor of the regularity of all proceedings before the referee, and that the trustee complied with all the requirements of the law and was qualified to act. The notes of the testimony of the bankrupt taken at a preliminary proceeding before the referee to ascertain his assets and liabilities were properly rejected. The issue was not between the same parties nor did it involve the same subject-matter.

The judgment is affirmed.

       Also reported 20 Sup. Ct. Repr. 1000, Reporter.


source: Caselaw Access Project

author: Pee Ctjeiam,

license: Public Domain

text:
    Pearson’s Estate.

      Will—Codioil$—Substituted legatees.

    Testatrix by clause 3 of her will gave to each of five-persons $100. By clause 4 she gave the residue to eight persons to be divided equally among them, and directed that if any of such persons should not be living at her death, “let the sum named be returned to the estate and an equal division be made among those living together with Friends’ Boarding House.” By clause 5 she directed that her household goods and wardrobe should not be sold but should be distributed among a number of persons named. Four of these persons died before the testatrix, but only one of them, a niece, was a residuary legatee under clause 4. By two codicils she added three other persons as residuary legatees, and by a third codicil, after reciting the death of the four persons to whom articles had been bequeathed by clause 5, she directed that the names of five persons should be “put in place of them.” One of the persons mentioned as having died, was in clause 3 of the will, and the others including the niece named in clause 4 as a residuary legatee were also in clause 5, as legatees of specific articles. Held (1), that it was the intention of the testatrix to substitute the five persons named in codicil 3 in place of the four deceased wherever bequests had been made to them; (2) that the five substituted legatees took collectively the share or bequests which were devised to each of the deceased legatees; (3) that the “Friends’ Boarding House” was not entitled to any part of the residuary estate since the testatrix had substituted for the1 deceased niece, the five persons mentioned in codicil number '3.
    Argued Feb. 8, 1905.
    Appeals, Nos. 15, 16 and 17, Jan. T., 1905, by Sarah Selser Pearson, et al, from decree of O. C. Delaware Co., dismissing exceptions to auditor’s report in Estate of Alice A. Pearson.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed;
    Exceptions to auditor’s report.
    From the record it appeared that the will of testatrix after some bequests not disputed provided:
    “ Third. I give and bequeath to Eunice Pearson, Maria Pearson, Martha Sellers, Mary Tagg and Elizabeth H. Powell each One Hundred Dollars ($100). The bequests to the foregoing persons to be free from the Collateral Tax.
    “ Fourth. I give and bequeath all the rest, residue and remainder of -my Estate, real, and personal, to be divided equally —to Somers S. Pearson, Frances Ash Lauderbach, Julia M. Coleman, Alice Ash Dickins—Medora Smith-, Cordelia Smith, Mary Gamble and Alice Ash Pearson (daughter of Benj. B. Pearson). If any of the aforesaid persons be not living at the time of my death, let the sum named be returned to the Estate, and an equal division be made among those living together with “ Friends’ Boarding House ” located in West Chester, Chester County, Pennsylvania.
    “ Fifth. I desire that none of my household goods or wardrobe shall be sold but I give and bequeath to the persons named in the following list, the various articles thereof, set opposite their-names.” Here followed a list of articles, and the names of the legatees, the only ones that need to be mentioned being John W. Coleman, Julia M. Coleman, George H. Sellers and Martha Sellers, all of whom died before the testatrix.
    By a codicil in the form of a letter (or letters) to her executors the testatrix directed as follows:
    “ Oct 31st 1897
    “’To my Executors— Darby, Pa.
    “ In case I should not live to make another Will I wish you to follow out my wishes in this note to you—I made no provision for my niece Clara L. Smyth—wife of Marriott Smyth—1 because I thought she & her family would have ample but her husband has done so much for her mother & sister I would like them to share & share alike with the rest of my nieces and great nieces—mentioned—
    “Alice A. Pearson.”
    “Dear Charlie
    “Let me say to thee & Joseph T. Bunting—to add the names of Mary E. Gamble & Clara L. Smyth in the equal division of my property, with the rest of my nieces named.
    “Alice A. Pearson.'
    . "“A.pril l898 ... .' Darby Pa.” •;
    .'By a further codicil ■ testatrix added Sermon B. Pearson to her residuary devisees, and by a still later codicil, called No. 3, she provided:
    “.Whereas,
    John W. Coleman,
    -Julia M. .Coleman,

      George H. Sellers,
    Martha Sellers,
    Have passed away—I desire the following names may be put in place of them.
    Edward L. Pearson, Philadelphia.
    George Pearson, Pittsburg.
    Nelson C. Wilson, “
    Elizabeth P. Selser, Philadelphia.
    Sarah Selser Pearson, “
    Alice A. Pearson.”
    The final account of the executors was referred to H. J; Makiver, Esq., as auditor, who reported in substance as follows:
    In section three of said will we meet with the first matter which requires the consideration of your auditor, and this arises from the fact that one -of the legatees therein mem tioned, to wit, Martha Sellers, is dead, and it is contended for Elizabeth P. Selser and Sarah Selser Pearson that codicil No.-3 makes a substitution, in that the names of Edward L. Pearson, George Pearson, Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson are to be substituted in the plaée of Martha Sellers, deceased, and that each is to take the same share which the other legatees receive under said clause of the will, namely, $100 each.
    In section four of the will Julia M. Coleman, one of the residuary legatees, has also died, and it is contended that the five persons named' in codicil No. 3 are substituted in the place of Julia M. Coleman, and that each is entitled to share equally with the other residuary legatees.
    Both of these contentious depend entirely upon .the interpretation of codicil No. 3. We shall take them up together, as whatever our conclusions may be in one will apply equally to the other.-
    For the Friends’ Boarding House it is contended that codicil No. 3 is void on account of it being uncertain, and as such it - does not affect the contingent bequest to the boarding house. . . .
    Codicil No. 3 is not dated, but from evidence ■ submitted to your-auditor and from the codicil itself it is manifest that •John W. Colémah, Julia M. Coleman, George H. Sellers and Martha Sellers were deceased at the time the codicil was written, and the testator lias full knowledge of the fact as she expressly recites their death therein, and that she had the will before her or an accurate knowledge of its contents is also clear in that the legatees whom she recites as having passed away are all mentioned in the will. It must be borne in mind that she had made devises to a great many people, all of about the same degree of relationship, namely, nephew, nieces, grandnephews and grandnieces, showing that she had in mind the effect of the death of John W. Coleman, Julia M. Coleman, George H. Sellers and Martha Sellers, and that she desired to substitute Edward L. Pearson, George Pearson, Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson in their place and stead, they being of the same degree of relationship as appears from testimony submitted to your auditor, and not having been previously provided for. So now the question resolves itself into what clauses in the will did she intend to make the substitutions.
    In clause No. 8 of the will we find that she bequeathed to Martha Sellers $100.
    In clause No. 4, which provides for a distribution of the residue of the estate, we find the name of Julia M. Coleman.
    In clause No. 5 we find the name of Julia M. Coleman six times, and the names of John W. Coleman, George H. Sellers and Martha Sellers, each once.
    She has not directed the substitution in any particular clause, so that the substitution must be held to apply generally unless it should appear inconsistent with the intention and substitution impossible.
    Now the question is whether the substitution is impossible or inconsistent in any of the clauses of the will ?
    In the opinion of your auditor a substitution is not impossible so far as relates to clauses No. 3 and 4, as these are bequests of money.
    As to clause No. 5, which provides specific bequests of particular pieces of furniture, it would seem at first glance that the substitution was impracticable, as the learned counsel for the Friends’ Boarding House has argued, in that it would not be possible to divide the several pieces of furniture particularly mentioned among the five substituted legatees, but it must be borne in mind that in this clause the testatrix mentioned the name of Julia M. Coleman six times and gave .her five pieces of furniture, and gave her the power to keep or change the disposal of anything she may wish to, and as she does not give this special power to any of the substituted legatees, it would seem evident that she did not have this clause only in mind when she wrote the codicil in question.
    Therefore, in the mind of your auditor, the testatrix intended to substitute the five persons mentioned to wit: Edward L. Pearson, George Pearson, Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson, in the place of the four deceased wherever bequests had been made to them.
    As to what proportion of the bequests to the deceased persons mentioned the five substituted legatees were to take, your auditor is of the opinion that the testatrix intended that the five substituted legatees should collectively take the share or bequests which were devised to each of the deceased legatees. That is, the bequest of Martha Sellers in clause No. 3 was to be divided equally between the five substituted legatees, and the share of the residuary estate devised to Julia M. Coleman was to be divided equally between the five substituted legatees. And the furniture distributed under clause No. 5 was to be-divided among the same persons.
    As to clause No. 4, your auditor finds that the Friends’ Boarding House is not entitled to any part of the residuary estate, as Julia M. Coleman, having died during the lifetime of the testatrix and she having substituted the following persons in her place and stead, Edward L. Pearson, George Pearson; Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson, the contingency provided for in this clause never occurred, so that the share coming to Julia M. Coleman under this clause is to be divided equally among Edward L. Pearson, George Pearson, Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson.
    As to clause 4 of the will, we find some additions have been made, in the residuary legatees. In codicil dated October 31, 1897, which is as follows :
    “ To My Executor—
    “ In case I should not live to make another Will I wish you to follow out my wishes in this note to you. I made' no provision for my niece Clara L. Smyth—wife of Marriott Smyth —because I thought she & her family would have ample but her husband has done so much for her mother and sister I would like them to share and share alike with the rest of my nieces and great nieces.”
    And it is contended for Ciara L. Smyth and Marriott Smyth that they each take an equal share with the other residuary legatees, but your auditor does not agree with this view, for the reason that the testatrix says that she had made no provision for her niece showing that she only had her niece in mind, and from her own language she did not mean to give this niece anything until her husband, Marriott Smyth, had done certain charitable acts, and on account of this charity she directed that Clara L. Smyth, her niece, be made one of the residuary legatees. Your auditor, therefore, concludes that Clara L. Smyth is one of the residuary legatees, and entitled to share equally with the others.
    In codicil dated March 11, 1901, by express terms Sermon B. Pearson is added to the names of the other residuary legatees in the fourth clause of the will, and is entitled to share equally with the others named therein. Therefore, your auditor concludes that the residuary estate shall be divided equally into ten equal shares between Somers S. Pearson, Frances Ash Lauderbach, Alice Ash Dickins, Medrira Smyth, Cordelia Smith, Mary Gamble, Alice Ash Pearson, Clara L. Smyth, Sermon B. Pearson, and the tenth share divided equally between Edward L. Pearson, George Pearson, Nelson C. Wilson, Elizabeth P. Selser and Sarah Selser Pearson.

      Error assigned was in dismissing exceptions to auditor’s report.

      Joseph W. Hunsiclcer, with h.im George T. Hunsiclcer and Charles Hunsiclcer, for Elizabeth P. Selser and Sarah Selser Pearson. . . •

      J. Carroll Hayes, with him William M'. Hayes? for Friends’ Boarding Home of Concord Quarterly Meeting. •- :

      William I. Schaffer, for Frances Ash Lauderbach and Clara ■Ic. Smyth.

      W. B. Broomall, for George Pearson and Nelson C. Wilson.

      William Morris, for Somers S. Pearson.
    March 13, 1905:
   Pee Ctjeiam,

These decrees are affirmed on the report of the auditor approved by the court below.


author: Mb. Justice Brown,

text:
    City of Philadelphia to use v. Hood, Appellant.

      Municipalities—Contracts—Delay in accepting bid—Rights of contractor and owner.

    Where a municipality delays for an unreasonable time in accepting a bid for a municipal contract, the contractor or owner may object, if either is prejudiced by the delay; but where a municipality after a delay of five years accepts a bid and awards a contract, and the contractor undertakes and completes the work, a property owner cannot object unless he affirmatively shows that he is called upon to pay more than he would have been required to pay if the contract had been awarded on proposals advertised for in the year in which the work was done.
    Argued Jan. 4, 1905.
    Appeal, No. 102, Jan. T., 1904, by defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1898, No. 108, M. L. D., on verdict for plaintiff in case of City of Philadelphia to use of John M. Mack v. James E. Hood, Registered Owner.
    Before Dean, Fell, Beown, Mesteezat, Pottee and Elkin, JJ.
    Affirmed.
    Scire facias sur municipal lien.
    From the record it appeared that the defendant filed a special plea which was as follows :
    And for a further plea the said defendant says that the contract for the paving, for which this lien is filed, was not awarded according to law, the proposal therefor not having been advertised as required by the ordinance and by the acts of assembly.
    The only authority for this paving was an ordinance of councils of the city of Philadelphia, approved July 8, 1891 (ordinances of 1891, page 268), which provides as follows :

      ' “ That the director of the department of public works be, and is hereby, authorized and directed to enter into a contract with a competent paver or pavers for the paving of East Mount Pleasant avenue, from Germantown avenue to the Reading Railroad, with vitrified brick, without a sewer being first constructed, cost to the city not to exceed $2,450. . . . The conditions of which shall be that the contractor or contractors shall collect the cost of said paving from the owners of property respectively fronting on said streets, and shall also enter into an obligation to the city to keep said streets in good repair for three years after the paving is finished ; provided, said streets shall be first dedicated or properly opened, and that the director of the department of public works first advertise for proposals for paving said streets, and award the contract to the lowest bidder; and that the owners of property fronting on said streets shall not be charged more than the contract price.”
    The work authorized by this ordinance was advertised on February 11, 1892, and bids were received on February 24, 1892, including the bid of John M. Mack, the use plaintiff in this case, and no subsequent advertising for said work was made and no further proposals for the same were thereafter received by the said city, nor was any contract then made with the use plaintiff.
    More than five years afterwards, to wit: on June 23, 1897, without any further advertising for proposals and without the receipt of any others, a contract for this paving was entered into by the director of public works with said John M. Mack, who subsequently proceeded to pave the said street.
    The proposal or bid of the said John M. Mack for this work is attached to the contract and is marked “ 2-24-92.”
    By reason of which facts it appears that no advertisement was made in respect to bids for this work, and no proposals for the same were received for a period of more than five years before the said contract was made, and the property owners were thereby deprived of the benefit of more advantageous bidders who might subsequently have been willing to bid upon the same.
    And this the defendant is ready to verify.
    The plaintiffs demurred as follows :
    And the said plaintiffs, according to the form of the statute in such, case made and provided, state and say to the court the following causes of demurrer to the said plea:
    1. That the facts in the said plea contained, if proved as therein alleged, are no defense to the case of the said plaintiff.
    2. Because the said plea is in every respect uncertain, informal and insufficient.
    The court sustained the demurrer. The case went on to trial and resulted in a verdict of $1,549.98 upon which judgment was entered.

      Error assigned was in sustaining demurrer to plea.

      Prank P. Prichard, with him Charles E. Ingersoll, for appellant.
    The property owner has a clear right to insist upon a condition in the ordinance which was inserted for his benefit: Phila. v. Jewell, 135 Pa. 329; Philada. v. R. R. Co., 88 Pa. 314.
    Where the law requires that contracts for certain municipal work shall only be made after due advertisement and to the lowest bidder, neither the municipality nor its officers can ' make a binding contract unless in this prescribed manner: Addis v. Pittsburg, 85 Pa. 379 ; Fell v. Phila., 81 Pa. 58.

      E. 0. Michener, for appellee.
    There are no authorities upon • this question because it has never been raised; nor has there ever been any thought in the mind of anyone that it was not entirely within the discretion of the director to make the contracts when he thought the time was ripe, and to order the work to be done whenever, in his discretion, he believed the time had arrived for doing it. The only case which leans at all toward a discussion of this question is Keith v. City of Philadelphia, 126 Pa. 575.
    March 20, 1905:
   Opinion by

Mb. Justice Brown,

On February 24, 1892, the use plaintiff submitted a bid to the city of Philadelphia for paving East Mount Pleasant avenue from Germantown avenue to the Reading Railroad. It was submitted in response to an advertisement for proposals to do the work, which had been authorized by an ordinance approved July 8, 1891. This provided that the streets to be paved should “ be first dedicated or properly opened, and that the director of the department of public works first advertise for proposals for paving said streets, and award the contract to the lowest bidder; and that the owners of property fronting on said streets shall not be charged more than the contract price.” By a special plea the appellant averred that the contract had not been awarded according to law, because there had been no further advertisement after February If, 1892, and it was, therefore, unlawful for the city, more than five years afterwards—on June 23, 1897—to award the contract to the appellee' on his bid made February 24, 1892. To the plea a demurrer was filed and sustained by the court below. This action of the court is the only error assigned, and the single question is whether, under the facts as set forth in the special plea, the city did unlawfully award the contract to the appellee more than five years after he had submitted his bid.

It is contended that the direction of the ordinance that the director of public works shall “ first advertise for proposals for paving said streets, and award the contract to the lowest bidder,” is to be interpreted as meaning that the advertisement shall bear some reasonable relation to the time of the making of the contract, and that, as the time which intervened between the receipt of the bid and the awarding of the contract in this case was unreasonable, it had not been awarded in compliance with the ordinance. It does seem but right that after bids have been received from contractors in response to advertisements relating to public improvements, action on them should not be unduly delayed. Proposals are made on the basis of the prices of material and labor at the time of the advertisement for the bids, and, unless the contrary appears in the advertisement, it is to be presumed that the contract is to be awarded and the work done at or within a reasonable time. After undue and unreasonable delay in acting upon his bid, if a proposed contractor should be unwilling to be bound by it, he ought not to be held to it, if, at the time of its acceptance, the prices for labor and material upon which he based it have risen. But the contractor is not here complaining. He entered into the contract years after his bid had been submitted, though he might have been relieved from it for the reason stated. What is true of him ought to be and is equally true of the owner of property taxed for the payment of municipal improvements; and if it appeared by the special plea that this appellant’s share of the burden would have been less, if, in 1897, when the work was done by the contractor, bids could have been received for a less sum, he ought to be heard in his complaint of the unlawfulness of the award of the contract, for the city, not only in the light of a reasonable interpretation of the ordinance, but upon the principle of fair and honest dealing with those who must pay the cost of street improvements, ought not to be permitted after years of delay to award a contract on a bid in excess of one that might be submitted at the time the improvements are made. Such, however, is not the situation as presented here. From all that can be gathered from appellant’s plea, the effect of the city’s acceptance of the bid in 1897, so far as he is concerned, is the same as if it had been accepted in 1892, and the work delayed until 1897. In November of that year it was completed. The property of the appellant was benefited by it, and he does not aver, and it is, therefore, safe to assume that he cannot, that he has been in any way injured by the delay in awarding the contract, or that he is now called upon to pay more than he would have been required to pay if proposals had been advertised for in 1897 and the contract awarded on bids then submitted. For the reason that it does not appear from the special plea that the defendant was in any way prejudiced by the delay of which he complains, the demurrer to it was properly sustained.

Judgment affirmed.


text:
    McCarthy v. Philadelphia and Reading Railway Company.

      Evidence—Charge—Assignments of error.

    Where evidence has been properly admitted and its admission is assigned as error, the appellate court cannot consider or correct an error alleged in a portion of the charge relating to such evidence, where that portion of the charge has not been assigned as error. The appellate court can correct only-such errors as are assigned.

      Negligence—Evidence—Damages.

    In an action to recover damages for personal injuries, the plaintiff, a bartender, may testify as to what his occupation had been, as to how much he had made per week, and that by reason of the accident he could no longer follow his occupation.

      Negligence—Railroads—Crossings—Signal by gateman—Evidence—Contributory negligence.

    In an action against a railroad company to recover damages for personal injuries, it appeared that the plaintiff at the time of the accident was standing on the rear step of an ice wagon. The wagon when near a railroad crossing was stopped by a trolley car in front of it, which had been stopped by the lowering of the gates. Another man was standing on the step of the wagon beside plaintiff, to the right, with his left arm around plaintiff’s body, holding on to a strap with his left hand. The flagman was on the track, and after a north-bound train had passed, and the gates been raised, he signaled to the motorman of the traction car to come on. The car moved toward and across the tracks, followed by the ice wagon. When the wagon approached the gates the driver either stopped or was about to stop. Plaintiff testified that he himself looked and listened, although his view to the south was obstructed by standing cars. Apprehensive that there might be danger, he called to the driver, “you had better stop and take another look.” The driver then asked the gateman, “How is it?” and the reply of the gateman, as he beokoned them on, was “All right, come on.” The wagon then proceeded and was struck by a train from the south, and the plaintiff was injured. The man who was standing on the step beside the plaintiff, having a better view, saw the approaching train, and jumped and escaped. Held, that the question of plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 6, 1905.
    Appeal, No. 103, Jan. T., 1904, by defendant, from judgment of C. P. No. 4, Pbila. Co., March T., 1902, No. 1213, on verdict for plaintiff in case of Cornelius McCarthy v. Philadelphia and Reading Railway Company.
    Before Dean, Fell, Blown, Mestlezat, Pottel and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Call, J.
    At the trial it appeared that plaintiff, whose occupation was that of a bartender, was riding at the time of the accident on the back step of an ice wagon. As the wagon crossed one of defendant’s tracks it was struck by a train and plaintiff was injured. The circumstances of the accident are detailed in the opinion of the Supreme Court.
    When the plaintiff was on the stand he was asked this question : “ Q. Where were you going from Eleventh and Berks ? A. To Eighth and Montgomery avenue. Q. What were you going there for ? ”
    Mr. Hart: That is objected to.
    Objection overruled. Exception noted for defendant. [1]
    “ Q. What were you going there for ? A. I was going there to get a job tending bar, with the intention of buying the place.” ********
    “ Q. Where did you stop ? A. Back of the trolley car. As the train passed up we stood there for a minute or two minutes, probably three minutes, and when the train passed up the railroad watchman lifted the gates for the car to pass, the trolley watchman blew his whistle, and the car came on. The car went ahead, and we went after the car. When we got to the gates, I could not see up or down the track, because there were coal cars on both sides, and I put my head in the wagon, and I told Derr ”-
    Mr. Hart: I object to any conversation between the witness and anybody that is not sought to be charged with negligence as immaterial.
    The Court: “ Q. Who were you going to have the conversation with ? A. The driver of the wagon.”
    Mr. Scarborough: I offer to show that this witness, as the team was being driven through the gates, stuck his head in the wagon and called to the driver, Derr, “ You had better stop and look again,” this being but about a half minute or half a second before the accident happened, and while the ice wagon was in the very act of crossing the railroad.
    Objected to. Objection overruled. Exception noted for defendant. [2]
    The Court: “ Q. What did you say to the driver ? Could you see him? A. I could not see him. Q. How was the hood you were standing under, down or up ? A. Down. I hallooed into the wagon to Derr, ‘ You had better stop and take another look.’ ”
    ********
    “ Q. Who raised the gates ? A. The railroad watchman, Mr. Eagan. Q. What did he do while you were crossing over ? A. When we got to the gates Derr said to him, ‘ John, how is it?’”

      Mr. Hart: I object to this.
    Mr. Scarborough: I offer to show by this witness that as the horses came between the raised gates the driver of the ice wagon, Mr. Derr, went to the railroad’s gate tender and said, “ Jack, how is it ? ” and that the railroad’s gate tender called back and said, “ All right; go ahead.”
    Mr. Hart: That is objected to.
    Objection overruled. Exception noted for defendant. [8]
    The Court: “ Q. Could you see Eagan from where you were ? A. Yes; I was looking out at the side of the wagon, and I saw Eagan.”
    Mr. Scarborough: “ Q. Where was Eagan ? A. Standing at the gate. Q. Which one was it; what corner ? A. The northwest corner.”
    Mr. Hart: I object to this conversation.
    The Court: I understand the witness is able to say the conversation with Eagan. There is no proof as to who was driving this wagon, and this man could not see who was driving because he could not see through the board at the back of the seat.
    Mr. Scarborough: I desire to amend my offer and supplement it by showing that as the gatekeeper spoke these words, he beckoned to the occupants of the wagon to drive ahead by beckoning this way with his hands. (Indicating.)
    Mr. Hart: That is objected to.
    The Court: Do you mean he beckoned to the men on the back part of the wagon ?
    Mr. Scarborough: He beckoned to the men on the driver’s seat of the wagon, and including the driver and the helper.
    Mr. Hart: I object.
    “ Q. Now was this wagon being taken across there ? A. Mr. Derr and Mr. Hones were on the seat of the wagon; they were driving.”
    The Court: “ Q. Who was driving ? A. I cannot say who was driving the wagon. Q. You do not know whether Derr or the other man? A. No.”
    Mr. Scarborough : “ Do you know who occupied the position known as driver of the wagon? A. No; I could not say.”
    Mr. Hart: I object.
    “ Q. How long did this conversation between Mr. Derr and Mr. Eagan take place before the collision ? A. I guess about half a minute. Q. How fast were the horses traveling while crossing the railroad ? A. They were going at a smart walk, just prior to getting into a trot, after starting to get over the tracks.”
    Mr. Scarborough: I propose to follow up this offer by showing that Derr was actually holding the lines and driving the horses at the time he called to this gentleman, Eagan, to inquire, and when Eagan beckoned him on.
    The Court: The offer is admitted with that understanding.
    Exception noted for the defendant.
    “ Q. Go ahead and give that conversation; state what was said by Derr, or by Eagan, while the wagon was being driven through. A. When the wagon got to the gate, Derr says to Eagan, 4 Jack, how is it ? ’ and he says, ‘ All right; come on,’ and he beckoned with his hand. I was looking out on the north side of the wagon' at that time, and I took my head back as we got up to the gates and looked north and south, and could not see anything with the house at the north side with the coal cars at the south side—the watchman’s house on the north side. Q. What had you earned as a bartender for your brother between November, 1891, and November, 1895 ? ”
    Mr. Hart: That is objected to.
    The Court: Your object is to show that he had skill as a bartender, and by reason of the accident, he could not follow it any longer ?
    Mr. Scarborough: Yes.
    The Court: The objection is overruled.
    Exception noted for defendant. [4]
    “ A. I had $15.00 a week and my board and lodging and my keep and my chances besides, which amounted to about $25.00 a week. Q. What do you mean by your chances ? A. Customers that we deal with, and in order to stand in with the bartender, they always tip them off. Q. What we ordinarily know in life as 4 tips ’ ? A. Yes.”
    * * * -* * * *
    John J. Eagan, the gateman, was asked this question :
    44 Q. Who was driving? A. His helper was driving. Q. What is his name? A. Hones, I believe. He came out and threw up his hand. When I went out he threw up his hand and he says to me, ‘ Hello, Jack —’ ”
    Mr. Hart: I object.
    “ Q. Which side of the wagon was he seated on ? A. He was seated on the left side of the wagon. Q. By you? A. Yes.”
    Mr. Hart: I object to any conversation which took place between the witness and some person other than the plaintiff.
    Objection overruled. Exception noted for defendant. [5]
    “ Q. He was seated on the front seat ? A. Yes. Q. He was right by Hones? A. Yes. Q. Hones had the reins, as I understand it? A. Yes ; Hones was driving, as near as I recollect. Q. How far from you was Derr ? A. He was almost opposite to me. He was on the wagon, up above me. I was on the side, walking on out. Q. You were going in the same direction he was going? A. Yes. Q. How many feet from you was he ? A. Right about opposite to me. Q. How many feet—six, eight or ten ? A. No ; he was right alongside of me. Q. Was he three feet from you? A. About three feet. He says, ‘Hello, Jack ; how is it?’ I says, ‘All right; go ahead, Derr.’ I was walking out. Just as he reached the north-bound track—the horses cleared it—”
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $10,000. Defendant appealed.

      Errors assigned were (1-5) rulings on evidence, quoting the bill of exceptions ; (6) refusal of binding instructions for defendant.

      Gavin W. Hart, for appellant,
    cited: Lake Shore, etc., Ry. Co. v. Frantz, 127 Pa. 297; Roberts v. Canal Co., 177 Pa. 183; Borough of Carlisle v. Brisbane, 113 Pa. 544; Township of Crescent v. Anderson, 114 Pa. 643; Dean v. Penna. R. R. Co., 129 Pa. 514.

      Henry W. Scarborough, for appellee,
    cited: Phila. & Reading R. R. Co. v. Killips, 88 Pa. 405; Matthews v. R. R. Co., 161 Pa. 28 ; Roberts v. Canal Co., 177 Pa. 183 ; Jones v. Harris, 186 Pa. 469; Fennell v. Harris, 184 Pa. 578; Sutliff v. Penna. R. R. Co., 206 Pa. 267; Ely v. R. R. Co., 158 Pa. 233; McNeal v. Ry. Co., 131 Pa. 184; Whitman v. Penna. R. R. Co., 156 Pa. 175 ; Arnold v. R. R. Co., 161 Pa. 1; Philpot v. Penna. R. R. Co., 175 Pa. 570; Smith v. R. R. Co., 158 Pa. 82; Davidson v. Ry. Co., 171 Pa. 522; Link v. R. R. Co., 165 Pa. 75; Haverstick v. R. R. Co., 171 Pa. 101; Neiman v. Canal Co., 149 Pa. 92; Glushing v. Sharp, 96 N. Y. 676; Eddy v. Powell, 49 Fed. Repr. 814; Worthington v. P. & R. Ry. Co., 23 Pa. Superior Ct. 195; Wolfe v. Penna. R. R. Co., 22 Pa. Superior Ct. 335.
    March 20, 1905:
   Opinion by

Mb. Justice Brown,

Five of the six assignments of error in this case relate to the admission of testimony. The first complaint of the appellant is that the court ought not to have permitted the plaintiff to testify that when he was injured he was on his way to Eighth street and Montgomery avenue, “ to get a job tending bar, with the intention of buying the place.” This was in reply to the question, “ What were you going there for? ” The purpose of this question was not asked, and the answer was admitted under a general objection. From all that appears from the record, no error was committed in admitting the testimony at the time it was received; but it is now argued on this appeal that it was improperly admitted, because, in the general charge to the jury, the court instructed them that, in estimating the plaintiff’s loss of earning power, they could take into consideration his testimony that he was on his way to a saloon, with the intention of trying to get employment as a barkeeper and of ultimately becoming the proprietor by buying it. The only error, if any, in connection with this testimony is in that part of the charge of the court relating to the same, but neither that portion of it nor any other part of it has been assigned as error. The first assignment must, there-, fore, be dismissed, for we can correct only such errors as are assigned.

The purpose of the testimony which is the subject of the fourth assignment was to show the loss of the plaintiff’s earning power as a bartender, which had been his occupation and which he could no longer follow by reason of his injuries. His testimony on this point was clearly proper, and the assignment relating to it is without merit. There is nothing in the testimony of the plaintiff, the admission of which is assigned as error in the second and third assignments, nor in that of Eagan, the gateman, the subject of the fifth assignment, which ought to. have been excluded. The plaintiff was standing on the rear step of the wagon and the gateman -was at the crossing. Each testified to just what had occurred and what the situation was at the time the driver of the ice wagon started to cross over the tracks and got upon them, and the testimony of each, which was objected to, had a very proper place in the proofs.

The remaining assignment is that the court erred in refusing the request of the defendant to direct a verdict in its favor. Its negligence was conceded on the trial, and the ground of the refused request was the alleged contributory negligence' of the plaintiff. The defendant submitted no evidence, and the learned judge, in the light of that offered by the plaintiff, refused to take from the jury the question of his contributory negligence and to judicially declare that it was a bar to his right to recover.

The ice wagon, when near the railroad crossing, was stopped by a trolley car in front of it, which had been stopped by the lowering of the gates. The plaintiff was standing on the step at the rear of the wagon. A man named Moore was standing on it beside him, to the right, with his left arm around plaintiff’s body, holding on to a strap with his left hand. The trolley flagman was on the tracks, and, after a north-bound train had passed and the gates been raised, he signaled to the motorman of the traction car to come on. It moved towards and crossed the tracks, followed by the ice wagon. According to one witness, when the horses’ heads were at the gates the driver stopped, and, according to another, he was about to stop. Be this as it may, the plaintiff says he was looking and listening, though his view to the south was obstructed by cars standing on the siding. Apprehensive that there might be danger, he called to the driver, “ you had better stop and take another look.” The driver then asked the gateman, “ How is it, John ? ” and the reply of the gateman, as he beckoned them on, was, “ All right, come on.” The plaintiff and the witness Hones, seated in the front of the wagon, not only heard Eagan, but saw him when he signaled the driver of the wagon to come on. Moore, who saw the approaching train when it was within a few feet of him, jumped from the wagon step and escaped. Under the foregoing state of facts, the court could not have pronounced the plaintiff guilty of contributory negligence, for it was the exclusive province of the jury to say whether he had or had not, under the circumstances, done all that was required of a prudent man. Approaching a grade railroad crossing, with his own view to the south cut off, up to the very point of crossing, he was on the lookout for danger, apprehensive that he might be in its path, and, but for the conduct of the gateman, it might be that he ought to have exercised a higher degree of care; but, whether he did exercise the proper degree was, under the circumstances detailed, for the jury. On the alert, looking as best he could for danger in the direction from which it came, he heard from the defendant’s employee, whose duty it was to guard against peril at the crossing, the assurance that the way was clear, and he saw the beckon to come over as the gateman said “ All right; come on.” Of our many cases which sustain the court in its refusal to direct a verdict for the defendant, on the ground of the plaintiff’s contributory negligence, reference need be made only to Fennell v. Harris et al., Receivers of the Philadelphia & Reading R. R. Co., 184 Pa. 578. We there said, under conditions to which our words were no more applicable than to those in. this case : “ It is a question of fact, as it seems to us, whether, in view of all the circumstances, the open gate, the repeated signals of the flagman, the absence of a warning by the train of its approach and the impossibility of seeing down the tracks until fairly upon them, the plaintiff omitted any precaution that a prudent man should have taken to secure his safety from danger. He was responsible for none of the circumstances to which we have referred. He had the assurance of the defendant company by the open gate and by the positive intimation of the flagman, that there was no train approaching within such a distance as could threaten his safety in crossing the tracks, and there was nothing to counteract this assurance or put him on notice of danger. He knew that his view of the tracks was obstructed, but one who had superior knowledge of the moving trains allayed his apprehensions by signaling him that it was safe to cross at that time, and that he should proceed to do so. In view of all these considerations and his own testimony the question of contributory negligence was surely not a question of law. It depended upon the plaintiff’s credibility, upon the situation of the obstruction to his view down the railroad, upon the opportunity to escape after he saw the train, upon the want of any warning of its approach by the train, and upon the conduct of the flagman.”

Moore, who was standing on the step, to the right of the plaintiff, with an arm around him, and obstructing his view, was able to see the approaching train when within a few feet of the wagon, and made a hairbreadth escape from danger by jumping. That he was able to do so, because he could see the danger when it was almost upon him, is no reason, as a matter of law, why McCarthy, who may not have been able to see it, ought also to have saved himself from it by jumping.

Judgment affirmed.


author: Mr. Justice Dean,

text:
    Mellerio to use v. Freeman, Appellant.

      Trusts and trustees—Resulting trust—Mortgage—Act of April 22, 1856, P. L. 532.
    Where the owner of a mortgage purchases the mortgaged premises at sheriff’s sale, and immediately thereafter promises the persons liable on the bond accompanying the mortgage to sell the property at private sale, if no attempt should be made to set aside the sheriff’s sale; and deduct only what was actually invested in the mortgage, such a promise is merely an agreement to hold title to the land for the benefit of another, and cannot be enforced after the expiration of five years from its date.

      Judgment—Opening judgment—Proceedings in equity—Res adjudicada.

    Where the defendant in a judgment has secured a rule to open a judgment and the rule has been argued and held under advisement, and thereafter the defendant files a bill on the equity side of the court for the cancellation of the judgment, and the bill has been dismissed, the defendant cannot go back to the law side of the court and move for a decision on the rule to open the judgment. He is concluded by the decision in the equity proceeding.
    Argued Jan. 5, 1905.
    Appeal, No. 132, Jan. T., 1904, by defendant, from order of C. P. No. 3, Phila. Co., Dec. T., 1896, No. 567, discharging rule to open judgment in case of Marie Mellerio to use of Marguerite Lafferty to use of Samuel Chubb v. John S. Freeman.
    Before Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule to open judgment.
    The facts appear by the opinion of the Supreme Court, and by the report of Freeman v. Lafferty, 207 Pa. 32.

      JError assigned was order discharging rule to open judgment.

      John Houston Merrill, for appellant.

      Thomas D. MeGHathery, for appellees.
    March 20, 1905:
   Opinion by

Mr. Justice Dean,

The law as well as the merits of this case was fully passed upon by this court in an equity proceeding between the same parties reported in 207 Pa. 32. Substantially the same averments and denials appeared in the bill and answer in that case as appear in this petition and answer. We distinctly held in the equity case, that plaintiff’s bill was an attempt to enforce specifically a parol promise to convey land held on a parol trust, which promise not having been enforced within five years was barred by the statute of frauds of April 22, 1856, P. L. 532; this was decisive'of the controversy in that case and is necessarily decisive of the one here.

But another question was raised in the first case which was adverted to by us, but perhaps, because we disposed of the case on the first ground, not conclusively decided. We quote from the concluding paragraph of our former opinion:

“ Appellant first presented his petition in the court below, averring substantially the same facts as averred in this bill. The court helow granted a rule to open judgment and let him into a defense; the rule was awarded August 31, 1901; while it was pending and undetermined, appellant, on January 11, 1902, filed his bill; the court seems to have proceeded with a hearing on the rule, and on January 23, 1902, marked the case as under consideration; appellant then leaving that case pending, proceeded to decree on his bill, then took this appeal. While we are clear that on the authorities the plaintiff can abandon a proceeding at law before final judgment, go to the equity side of the court and file his bill, that is, he will not be barred in equity by the mere fact of having instituted proceedings at law, yet it is such a vicious practice to take up both sides of the court at the same time with the same case, that we have no hesitation in holding he must abandon one proceeding before he can prosecute the other. This is the substance of the decisions in Findley v. Keim, 62 Pa. 112; Penna. Co. v. Phila. Nat. Bank, 14 Pa. C. C. Rep. 193. Here appellant did not discontinue the proceeding on his rule to show cause; he has been heard on the law side of the court and the court holds the decision under advisement. We think the pendency of that case in that condition was good cause for demurrer.”

However, immediately after our decision was handed down in the equity case, appellant went back to the law side of the common pleas and moved the court for a decision held under advisement on the rule to open the judgment. No depositions were taken, but the court seems to have again heard argument and then discharged the rule to open judgment. From that decree we now have this appeal. The viciousness of the practice which we condemned when the case was here before is thus palpably demonstrated. The appellant here has now had four full hearings in substantially the same controversy, two in the court below and two in this court, while appellees have been subject to years of delay and no small expense to obtain a final decree. We will not again go into a discussion of the questions in dispute. We affirm the decree of the court below on two grounds: (1)There is nothing to show that the court below did not properly exercise its discretion in discharging the rule to open judgment. (2) The decision in equity in 207 Pa. 32, involving practically the same controversy between the same parties is conclusive.

Therefore the decree of the court below is affirmed.


author: Per Curiam,

text:
    McCallum’s Estate.

      Will—Construction—Widow.

    Doubts in the construction of a will are to be resolved in favor of a widow accepting the provisions of a will in lieu of her rights under the intestate law.

      Joint tenancy—Survivorship—Will—Act of March, 31, 1812, Sm. L. 395.
    The Act of March 31,1812, 5 Sm. L. 395, merely takes away survivorship as an incident of joint tenancy. It makes no change where the estate is created by will or where it is expressly provided for by deed and whether or not survivorship was intended depends not upon the precise language of -the instrument or the form of construction but upon the meaning to be gathered from the will or deed in its entirety.

      Will—Widow—Gift of income—Widow’s surviving daughter.

    Testator, by his will, authorized the sale of certain real estate and directed that if the sale be made in the lifetime of his widow or daughter A or in the lifetime of the survivor of them, the proceeds should be held in trust during the lifetime of his wife and daughter A and of the survivor of them, and that during the lifetime of the wife the income of the trust fund should be paid to her and the daughter A equally. After the widow’s death if A survived, a different disposition of the income was directed, and after the death of the wife and A, the principal was given one half to a daughter M and one fourth to each of two sons. The residue of the estate was also given to the two sons. The daughter A died before the widow. After the death of M, her child claimed a present award of half the trust fund. Held, that the wife was entitled to the entire income from the trust fund for life.

      Executors and administrators—Commissions—Lease of real estate—Payment of taxes by tenant.

    Executors and trustees who lease real estate under leases that contain a provision that the tenants are to pay the taxes, etc., are entitled to a commission of five per cent upon the gross amount the tenants are required to pay.
    Argued Jan. 6, 1905.
    Appeal, No. 120, Jan. T., 1904, by Real Estate Title Insurance and Trust Company, from decree of O. C. Phila. Co., Jan. T., 1898, No. 149, sustaining exceptions to adjudication in Estate of Hugh McCallum, deceased.
    Before Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication of Ashman, J.
    Penbose, J., filed the following opinion :
    While the testator gives his interest in the business of MeCallum, Crease & Sloan to his two sons, absolutely, to whom he also devises certain real estate in fee, and gives to them and to his married daughter, to whom there is also a gift of $5,000, the residue of his estate at the expiration of the life interests of his wife and unmarried daughter, the will, throughout, manifests his anxious care to provide for the wife and unmarried daughter, and especially for the wife (who is to “ have control and management,” as between her and the daughter, while she lives) a comfortable and sufficient support. He gives to them and the survivor of them his homestead in Germantown and his household furniture, etc., with the adjacent properties, for life and the life of the survivor, and directs the payment to each of them, “ out of the first moneys ” received by the executors, of $2,500, for the “ maintenance of herself and to defray the expenses of maintaining our homestead .... while my estate is in the course of administration and settlement,” with the provision that if the wife should die in the meantime the whole should be paid to the daughter, if living. The wife and unmarried daughter lived together, and they are treated in the will, while the wife lives, as a single party or joint class. Thus, it is directed that until his interest in the real estate, 1012-14 Chestnut street, is sold, the rents, issues and profits shall be collected by the trustee, who shall “ pay over two third parts of the same to my said wife and daughter in equal parts, during their lives, and one half part to the survivor of them during her life ; and to pay over the other third part, during the lives of my wife and daughter Annie, to my daughter Mary W. Leaman, and upon the decease of either of my wife or daughter Annie, then to pay over to the said Mary W. Leaman one equal half part of said rents .... and after the decease of the survivor .... to pay over such rents ” to the two sons and Mary, the married daughter, in equal shares.
    Doubtless from an apprehension that at the current rate of interest on legal securities the income of the proceeds of sale of his Chestnut street property would be considerably less than the rents prior to the sale, and that the whole of it would not be more than sufficient to enable his wife to continue in the homestead, he excluded the married daughter, so long as his wife lived, from any participation in its distribution, the provision of the will in that event being as follows : “ If the said trustees shall sell my share and interest of and in the said store property in the lifetime of my wife and daughter Annie or in the lifetime of either of them, he shall receive and hold the proceeds of the sale in trust to invest the same in good izztez-est bearing securities, first mortgages of real estate to be preferred whezi obtaiziable, and keep the same izxvested during the lives of my wife and daughter Annie and during the life of the survivor of them and to pay over the income derived therefrom in quarterly paymezrts during the life of my wife to her and my daughter Annie equally; but after the decease of my wife then to pay over one equal half part of said income to zny daughter Mary W. Leaman duz'ing the life of my daughter Annie and the other half part thereof to my daughter Azzzrie during her life. And upon the decease of my said wife and daughter Annie and of the survivor of them if ... . zny share of azid interest in the said store property has been sold or when it shall be sold, thez*z the trustee shall distribute and pay over the proceeds of sale and all investments thereof, ozie equal half part to my daughter Mary W. Leaman, azzd to my sozi Irving . . . . and to the said William .... to each ozze equal fourth part ”—the issue of any of them then dead to take the parents’ share.
    That this exclusion of the znarried daughter and of the sons so long as his wife lived, if she should survive Annie, was not unintentional or because he failed to consider the possibility of Annie’s death in her lifetizne, is znade clear by the fact that a provision precisely similar izr this respect is made in a subsequent part of the will with reference to the proceeds of sale of lands in Germazitown, the incozne of which is to be paid to the wife and Annie “ in equal parts ” during the life of the wife, and after her death, “ if she leave my daughter Annie her surviving ” (spoken of hypothetically), two thirds to Annie and one third to Mary, but with no distribution of income or principal to Mary or the sons “ during the life ” of the wife.
    The married daughter died in the lifetime of the testator, leaving a child to whozn her share passed. The testator’s interest in the Chestnut street property has been sold azzd the proceeds duly invested, but Annie, the uzzmarried daughter, had previously died, still unmarried, leaving a will which gives her estate to the wife, her mother, who is still living, and the question is presented as to the rights of the latter in the income of these proceeds.
    Even if she be entitled to but one half of such income, it is clear that the trust must be continued as to the entire principal, the gift of half the income of a fund being regarded as more desirable than the income of half of the principal (Wilen’s Appeal, 105 Pa. 121; Aubert’s Appeal, 119 Pa. 48; Comly’s Estate, 136 Pa. 153); but we are of opinion, from a careful consideration of the whole will, -that the testator intended his wife to have the entire income of the proceeds of sale of this property for life, if she survived the unmarried daughter, of whose share she would, practically, have the benefit so long as the daughter lived. This is fairly to be implied from his deliberate postponement of distribution until her death (see Jones v. Cable, 114 Pa. 586), and the failure to direct any other than the original distribution of income so long as she lived, especially when coupled with the principle which resolves doubts in favor of a widow accepting the provisions of a will in lieu of her rights under the intestate laws. The Act of March 31, 1812, 5 Sm. L. 395 (Purd. 1089), merely takes away survivorship as an incident of joint tenancy. It makes no change where the estate is created by will (Kerr v. Verner, 66 Pa. 326), or where it is expressly provided for by deed (Redemptorist Fathers v. Lawler, 205 Pa. 24) ; and whether or not survivorship was intended depends not upon the precise language of the instrument or the form of expression, but upon the meaning to be gathered from the will or deed in its entirety : Lentz v. Lentz, 2 Phil a. 117 ; Kerr v. Verner, 66 Pa. 326 ; Jones v. Cable, 114 Pa. 586. The question, however, is one which only concerns the right of the wife as against the estate of Annie; for if she does not become entitled to the whole income at Annie’s death, it is because Annie had an estate pur autre vie, viz.: during the wife’s life, under the direction that the income shall be paid “ during the life of my wife to her and my daughter Annie equally,” and this estate the wife now has under Annie’s will. If the sale is in “ the lifetime of either of them,” the income is thus given.
    The only other question is as to commissions on the income of the Chesnut street property prior to its sale. The testator was only one of three owners, and after his death it was rented for a sum which, with taxes, etc., which the tenants were required to pay, amounted to $20,000 per annum. The arrangement was obviously for the protection of the .lessors as between themselves ; and the obligation of the tenants, who in this respect simply bound themselves to act as agents for the lessors in paying part of what was, practically, their rent, in discharge of the joint liability of the lessors, was quite as great as their liability to pay the balance, enforceable by action on the lease, at least, if not by distress. It was quite as beneficial to the estate of the testator as if the whole of its share of the $20,000. had been required to be paid in cash and one third of the taxes afterwards paid from it. Under these circumstances it is not easy to see why the accountants who secured the benefit of this lease for the estate' of which they had the- care should not receive the usual compensation of five per cent upon the gross amount required to be paid by the tenants; and as this was expressly conceded by the owners of two-thirds of the income, we think the objection on behalf of the minor owning the other third should have been overruled.
    The exceptions are sustained.

      Errors assigned were in sustaining exceptions to adjudication.

      William E. Shoemaker, for appellant.
    In a will “ any words which showed an intention, that the estate should be divided¿ as ‘ equally to be divided,’ or ‘ share and share alike,’ or ‘ equally,’ a tenancy in common has always been inferred: ” Mitchell on Real Estate, 246; Tripp’s Estate, 202 .Pa. 260. .
    While survivorship may be created by deed or will it is clear from all the authorities that an intent to do so will not be inferred in the absence of any words indicating that purpose.
    The devise to Mary of the principal gave her a vested interest : Manderson v. Lukens, 23 Pa. 31; Carstensen’s Est., 196 Pa. 325; Safe Deposit, etc., Co. v. Wood, 201 Pa. 420; King v. King, 1 W. & S. 205; Gray on Perpetuities, sec. 120.
    The sum of $21,934.21, which the tenants paid for taxes, ground rent, etc., never, in any sense or by any implication, passed through the hands of the trustees ; they performed no service relative to it—all the payments being made directly by the tenants—and they incurred no responsibility of any kind therefor. To give them compensation for services, care and responsibility as to a sum of money they never even saw is certainly unjust to the cestui que trust.

      Preston AT. JErdmom, for Mahala McCallum, appellee.
    The right by survivorship will be implied, even where not directly conferred, if it appears to be the testator’s intention. This is especially the case where the gift is only for the term of a life: Kerr v. Verner, 66 Pa. 326 ; Lentz v. Lentz, 2 Phila. 117.
    In such case the statute abolishing joint tenancy has no application: Redemptorist Fathers v. Lawler, 205 Pa. 24; Jones v. Cable, 114 Pa. 586; Sturm v. Sawyer, 2 Pa. Superior Ct. 254.
    If the right to half the income during her mother’s lifetime was a vested right to Annie, then by her will it passed to her mother: Daly’s Est., 11 W. N. C. 514.
    A legacy that is vested is not to be divested by any uncertain terms: Magoffin v. Patton, 4 Rawle, 117; Bower’s Estate, 11 Phila. 620.
    Where a will provides for the payment of a legacy at a particular time, it is a vested legacy and goes to the personal representative of the legatee in case of his death before the time: Pechin’s Est., 8 W. N. C. 504; Chess’s Appeal, 87 Pa. 362; Chew’s Est., 13 Pa. Dist. Rep. 130; Provenchere’s App., 67 Pa. 463; Reed’s App., 118 Pa. 215. •

      JE. 0. Michener, for William H. McCallum and Andrew R. Matthews, trustees.
    March 20, 1905:
   Per Curiam,

The decree of the orphans’ court sustaining exceptions to the report of the adjudicating judge is affirmed on the opinion of that court.


author: Mb. Justice Bbown,

text:
    Land Title & Trust Company, Appellant, v. Northwestern National Bank.

      Banks and banking—Checks—Indorsement—Forgery—Trust company.

    The drawer of a check, draft, or a bill of exchange, who delivers it to an impostor, supposing him to be the person whose name he has assumed, must, as against the drawee or a bona fide holder, bear the loss where the impostor obtains payment of, or negotiates, the same.
    In such a ease the fact that the check was drawn by the trust department of a trust company on its own banking department and payment of it refused by the banking department, because of lack of identification of the person presenting the check, immediately after it was issued is immaterial.
    Dean and Potter. J. J., dissent.
    Argued Jan. 11, 1905.
    Appeal, No. 241, Jan. T., 1903, by plaintiff, from judgment of G. P. No. 2, Phila. Co., June T., 1898, No. 748, on verdict for defendant in case of The Land Title and Trust Company v. Northwestern National Bank.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Assumpsit to recover the amount of a check. Before Wilt-bank, J.
    The facts appear by the previous report of the case in 196 Pa. 230, and by the opinion of the Supreme Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      John Gr. Johnson, for appellant.
    The appellant could not have charged the amount by it paid to the appellee against the account of its depositor: United States v. Nat. Exchange Bank, 45 Fed. Repr. 163; Robertson v. Coleman, 141 Mass. 231 (4 N. E. Repr. 619).
    The appellee was not misled by anything done by the appellant ; but was guilty of negligence.

      The appellant was induced to pay the check solely because of its presentation and indorsement by th.e appellee : Robarts v. Tucker, 16 Q. B. (71 Eng. Com. Law Rep.) 560.
    Money paid by a bank upon a forged indorsement of a check to order, can be recovered by it if it proceeds promptly upon discovery of the fact of the forgery: McConeghy v. Kirk, 68 Pa. 200; Chambers v. Union Nat. Bank, 78 Pa. 205; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46; Onondaga County Savings Bank v. U. S., 64 Fed. Repr. 703; Turnbull v. Bowyer, 40 N. Y. 456; State Bank v. Fearing, 33 Mass. 533; Howe v. Merrill, 59 Mass. 80 ; United Security Life Ins., etc., Co. v. Cent. Nat. Bank of Phila., 185 Pa. 586 ; Myers v. Southwestern Nat. Bank, 193 Pa. 1.
    The check upon the appellant was not indorsed by the party in whose favor it was drawn.

      Samuel Diclcson, with him Ruby R. Vale, Alexander Magill and Alfred Moore, for appellee.
    The appellee bank may be relieved of liability because in thus' paying the check the intent of the drawer bank was thus effectuated. That is, that the physical person who stood before the drawer bank and with whom it meant to deal is the person to whom it intended the check to be delivered and to whom payment by the appellee bank should be made thereon: Emporia Nat. Bank v. Shotwell, 35 Kan. 360 (11 Pac. Repr. 141); Robertson v. Coleman, 141 Mass. 231 (4 N. E. Repr. 619); U. S. v. Nat. Exchange Bank, 45 Fed. Repr. 163; Meyer v. Indiana Nat. Bank, 61 N. E. Repr. 596; Metzger v. Franklin Bank, 119 Ind. 359 (21 N. E. Repr. 973) ; First Nat. Bank v. American Exchange Nat. Bank, 49 App. Div. 349 (63 N. Y. Supp. 58) ; Karoly Electrical Construction Co. v. Globe Sav. Bank, 64 Ill. App. 225; Crippen v. Nat. Bank, 51 Mo. App. 508; Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 322 (33 N. E. Repr. 247) ; Merchants’ Loan & Trust Co. v. Bank of the Metropolis, 7 Daly (N. Y.), 137.
    The drawer, appellant company, by delivering the check into the hands of a person thereby held out such person as the person named therein as payee and is consequently estopped as against a bank which acts upon such representation to deny that the drawer intended to make such person, impostor though he be, the payee of such check: Forbes v. Espy, 21 Ohio St. 474.
    It may be argued as a sound proposition that the real payee named in the check haying known nothing of the transaction and having given no consideration for the check is in the law a fictitious payee, and consequently the check, in so far as the bank is concerned, is to be considered as a check drawn to bearer: Phillips v. Mercantile Nat. Bank, 140 N. Y. 556 (35 N. E. Repr. 982) ; Bank of England v. Vagliano Bros., L. R. (1891) App; Cases, 107.
    The appellee’s position in this casé is that the appellant company is liable, not because it negligently trusted a stranger: who proved to be an impostor, but rather because the physical and visible person who stood before the drawer bank, with whom. it dealt and to whom it delivered its check, is the person to. whom it intended the appellee bank should pay: Smith v. Mechanics, etc., Bank, 6 La. Ann. 610 ; Levy v. Bank of America, 24 La. Ann. 220 ; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46.
    As between two innocent parties the.loss must rest upon him who by his carelessness or negligence first gave credence to the artifice and thus makes possible the perpetration of the fraud: States v. First Nat. Bank, 203 Pa. 69; First Nat. Bank v. American Exchange Nat. Bank, 49 App. Div. 349 (63 N. Y. Supp. 58).
    March, 20, 1905:
   Opinion by

Mb. Justice Bbown,

This judgment cannot be disturbed unless we overrule Land Title and Trust Co. v. Northwestern Nat. Bank, 196 Pa. 230. When the opinion in that- case was delivered by our Brother Fell it expressed the view of the majority of the court, as then constituted, after a most careful consideration- of the question involved; and it is approved by a majority of the court as now composed, who have also duly considered the question on what is really a reargument of it on this appeal. We do not feel called upon to say more of the opinion of Justice Fell, which, in a manner satisfactory to us, clearly expresses our views. In the note to the report of the case in 50 L. It. A. 75, there will be found numerous cases sustaining and vindicating it, the justified comment of the annotator being, “ It is apparent from the foregoing cases that the drawer of a check, draft or bill of exchange, who delivers it to an impostor, supposing him to be the person whose name he has assumed, must, as against the drawee or a bona fide holder, bear the loss where the impostor obtains payment of, or negotiates, the same.”

' The only fact not developed on the first trial, which was proved on the second, was that the check was taken to the banking department of the institution by the person to whom it had been delivered and payment demanded. The paying teller refused to pay it unless the person presenting it was identified, whereupon the latter said he would deposit it in his own bank. This was the person to whom the settlement clerk of the appellant had handed the check, intending to designate him as the payee, and the appellee, which had no knowledge of the teller’s refusal to pay unless the holder of the check was identified, is not to be affected by such refusal, any more than if the check had been presented at another bank and payment had been refused for the same reason; for the banking department of the trust company must be regarded as separate and distinct from that which issued the check. It was what the appellant did at the time it handed the check to the impersonator of Bissey that stands in the way of its recovery from the appellee, which paid the check to the indorsee of the person to whom the appellant had issued it as its payee. It is not seriously argued that the refusal of the paying teller to pay without identification materially changes the situation,

The 'judgment is affirmed.

Dean and Potter, J. J., dissenting.

We dissent from the judgment of the majority of the court in this case on the grounds set out in the dissenting opinion filed when the case was first before us.


text:
    Eslen’s Estate.

      Appeals—Jurisdictional amount—Superior Court—Supreme Court.

    Where an appeal is taken to the Supreme Court from a decree of the orphans’ court disallowing two separate and distinct claims against an estate, one over $1,500, and one under $1,500, the Supreme Court will remit to the Superior Court the appeal from the disallowance of the smaller claim, but will review the larger claim.

      Decedents’ estates—Claim far stock—Findings of fact—Evidence.

    Where a trustee in bankruptcy claims from the estate of a decedent a certain number of shares of stock of a corporation, evidenced by a duebill given by the decedent to the bankrupt four years before the former’s death, a finding by the orphans’ court that the stock had been sold by the bankrupt to the decedent, and that it really belonged to the legatee to whom it had been specifically bequeathed, will not be reversed, where it appears that the stock was in possession of decedent at the time of his death, that' for four years the bankrupt had never claimed it or asserted any interest in the corporation, and the declarations of both decedent and the bankrupt showed that the stock had been sold to the decedent by the bankrupt.
    Argued Jan. 16, 1905.
    Appeal, No. 182, Jan. T., 1904, by John Sparhawk, Jr., Trustee in Bankruptcy of Charles M. Stoever, trading as Charles M. Stoever & Co., from decree of O. C. Pbila. Co., April T., 1903, No. 161, dismissing exceptions to adjudication in Estate of Joseph A. Eslen, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Charles H. Edmunds, for appellant:
    The decedent held the stock in trust for Stoever: Eshbach’s Est., 197 Pa, 153; Smith’s Est., 144 Pa. 428; Ryerson v. Boorman, 8 N. J. Eq. 701; Dickerson’s App., 115 Pa. 198.

      Charles J. Sharkey and Renry J. Scott, with them F. Pierce Buckley, for appellees.

      March 20, 1905:
   Opinion by

Mb. Justice Brown,

The appellant presented two separate and distinct claims against the estate of the deceased. Neither had any connection with. or relation to the other. One was for $754.26, alleged to .have been received by Eslen for Stoever, and not paid by the former to the latter. T.he other was for 125 shares of the capital stock of a certain corporation, for which a certificate had been issued to the deceased, but which the appellant, as trustee in bankruptcy for Stoever, claims belong to his estate. But one appeal was taken to this court to the disallowance of these two claims. The act creating the Superior Court, aud regulating appeals to it, as amended by the Act of May 5, 1899, P. L. 248, provides that the appeal is to that court from the decree of the orphans’ court on “ any single claim ” not greater than $1,500. There is no provision in the act for an appeal like this, where one of the single claims of the appellant is less than $1,500 and the other exceeds that sum. But we cannot assume jurisdiction on an appeal from the action of the court below on any single claim not greater than $1,500, because the act declares it must be to the Superior Court, and we, therefore, remit to that court the appeal from the disallowance 'of the claim of the appellant for $754.26.

A certificate dated January 8, 1898, was issued by the Penn Printing and Publishing Company to Joseph A. Eslen for 125 shares of its capital stock. Two days later the decedent executed a paper, of which the following is a copy:

“ Common Council,
“ Philadelphia.

“Due Chas. M. Stoever on demand One hundred and twenty-five- shares of stock in the Penn Printing and Publishing Company, Certificate No. 13 registered in name of

“ Joseph A. Eslen.

“Jan.: TOth, 1898'.”'

In a letter to May Grleckner, written- about four years after the date of the foregoing paper,’ and proved as a codicil to his will,he wrote: “You are to have that 125 shares in Penn Co., that' I bought' from C. M. S. and this is to be your authority for it—the stock is in my iron proof in my room.”- After his death, the certificate for the stock was found in his iron box in his room.

The dispute over the ownership of the stock between the trustee in bankruptcy of Stoever' and May Gleckner was purely one of fact, and was so disposed of by the adjudicating judge- and the court in banc, in passing on the exceptions to the adjudication. Twenty-one errors are assigned relating to appellant’s claim to the .stock. The first nine relate to the rulings of the court in admitting and rejecting testimony. That which had been admitted under objection, and which was not proper for the court’s consideration, was not regarded by the auditing judge in making up his findings, and he so distinctly states. ' Though the offers which are the subjects of the eighth and ninth assignments might have been allowed, their exclusion was not error; for, if they had been allowed, neither the answer expected by the appellant as to an alleged contract by the appellee to sell Levin the stock, if it should be awarded to her, nor what she might have said in reply to the question as to what effort she had made to produce a paper to which she had referred would have been material in determining the ownership of the stock. Of the remaining eleven assignments of error we do not feel called upon to say more than that in no one of them have we discovered reversible error.

We have reviewed all of the evidence submitted, and, in the light of those portions of it which we are not asked by any assignment of error to say were irrelevant, immaterial or incompetent, the adjudicating judge and the court could not fairly have arrived at any other conclusion than the one appealed from. As stated, the question of ownership was one of pure fact. The trustee of the bankrupt relied on the duebill in support of his claim to the stock, but it appeared that in the schedule of the bankrupt’s assets this stock was not included. There was no evidence that Stoever had ever demanded it from Eslen, though the latter lived until March, 1902, more than four years after the date of the duebill. It does not appear that Stoever ever did anything indicating to the company that he regarded himself as one of its stockholders. The trustee in bankruptcy, although be had the- duebill in bis possession from September, 1900, never, so far as appears from the evidence, demanded the stock from Eslen. The appellee—■ the legatee of it—testified that in the fall of 1899 or 1900 she heard the testator say to Stoever: “ Charlie, I have every reason to be proud of the success of the Penn; we are doing very nicely; ” and that Stoever looked over and said: “ Well, I should not probably have sold my stock to you when I did; you might have given me a higher figure if I had held off a little while longer; ” to which the testator replied : “Now I am going to try to negotiate with Mr. Levin, and buy his interest; then I will own the stock in its entirety, the plant in its entirety.” This witness further testified that in the summer of 1898, the wife of Stoever, in his presence, asked the testator whether the company had been paying any dividends, and that Stoever turned to his wife and said: “ Why do you ask, Mabel ? I do not hold any stock in the Penn any more ; I sold my stock to Joe.” Still further this witness states that after the death of Eslen, when she informed Stoever that the stock which Eslen had purchased from him had been bequeathed to her, he said: “Well, so he ought; you have been faithful to him in working to his interest; so he ought to take care of you ; he always said to me during his lifetime, if anything happened to him he would see that you were well taken care of.” To the accountant, the sister of the deceased, Stoever said, according to her testimony, that the stock belonged to his daughter, Violet, and stated to her: “ There was a duebill in existence for the stock, and it came into the hands of the trustee in bankruptcy through the perfidy of Mr. Greiner.” With the certificate for the stock in the possession of the testator at the time of his death, and with the testimony just recited in support of his ownership of it, the court’s decree that it passed to the appellee as his legatee is affirmed, and this appeal is dismissed at appellant’s costs.