author:
Mr. Justice Elkin,
      Mr. Justice Brown,

text:
    Delaware, Lackawanna and Western Railroad Company, Appellant, v. Monroe County Water Power and Supply Company.

      Contract — Performance—Construction of wall and fill — Railroad— Power company.

    A water power company being about to build a dam across a stream at a gorge, and being threatened with an injunction by a railroad company whose tracks were laid along the side of the gorge, entered into an agreement with the railroad company by which it undertook to build a retaining wall, and to fill in back of the wall as a protection to the embankment of the railroad company in accordance with certain plans and specifications required by the railroad. The power company built the wall, as required, but instead of making the fill itself, entered into a new contract with the railroad company by which the latter company agreed to make the fill. For this work the power company was to pay the railroad company a stated charge per cubic yard, but not for more than a specified number of yards. The work of filling by the railroad company was to be done in accordance with the specifications contained in the original agreement. In doing the work the railroad company departed from the specifications in not tamping the fill, and in not placing the fill as high up or against the retaining wall as the specifications required, but did the work to the satisfaction of the inspector and accepted it as complete performance of the undertaking of the power company to protect the right of way and embankment of the railroad company. After the whole work was finished the railroad company accepted the wall and the fill as satisfactory. Held, that the railroad company was entitled to recover from the power company the cost of the fill up to the maximum number of cubic yards specified in the supplemental agreement.
    ' Brown, Mestrezat and Potter, JJ., dissent.
    Argued March 9, 1908.
    May 18, 1908 :
    Appeal, No. 363, Jan. T., 1907, by plaintiff, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 17, on verdict for defendant in case of the Delaware, Lackawanna and Western Railroad Company v. Monroe County Water Power and Supply Company, and Yan C. Peters and W.' S. Shafer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover money alleged to be due on a contract for filling in back of a retaining wall. Before Staples, J.
    The facts are stated in the opinion and the dissenting opinion of the Supreme Court.
    At the trial the court gave binding instructions for defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      A. Mitchell Palmer, for appellant.

      O. O. Shull, of Shull da Shull, for appellee.
   Opinion bt

Mr. Justice Elkin,

The appellee, an incorporated power company, was about to build a dam across a stream which ran through lands owned by it upon which a power plant was to be constructed. The stream at this point runs through a deep gorge, and alongside of it is the right of way of appellant railroad company. It was apparent to all interested parties that the construction of the dam would necessarily cause the water to back flow upon the right of way of the railroad company which skirted the base of the mountain at this point, and do injury to its embankment, which extended down almost to the water line. In order to protect its property from threatened injury the railroad company was about to institute proceedings to restrain the power company from obstructing the stream in such manner as to do injury to its right of way by causing the back flow of water. At this juncture the two companies got together amicably, and entered into an agreement whereby the controversy between them was settled without resort to a restraining order. Under the terms of -this agreement the power company was required to build a solid concrete retaining wall alongside of and between the creek and the right of way of the railroad company, and to fill in with earth backing the space between the Avail and the embankment, in accordance with the specifications and requirements of the railroad company. The power company complied with its agreement to build the retaining Avail, but, finding it inconvenient, and perhaps expensive, not having easy access to the place where the fill Avas to be made, or to materials Avith which to make it, concluded to make an arrangement with the railroad company to furnish the materials and do the Avork necessary to make the fill as required by the railroad company. This agreement is dated October 31, 1905, and refers to the former agreement whereby the power company had undertaken to construct the retaining wall and make the earth fill, and in express terms coArenanted to pay the railroad company the sum of forty cents per cubic yard for furnishing the materials and doing the Avork necessary to make the fill and complete the undertaking of the power company. The engineer of the railroad company had estimated that 8,930 cubic yards would make the fill, and the contract limited the liability of the power company to this amount. The railroad company, as shoAvn by the testimony, completed the fill to its oavu satisfaction, caused 10,780 cubic yards of earth to be put in the fill, and then demanded payment from the poAver company, claiming $3,572, the maximum liability under the contract. The poAver company refused payment, and this suit Avas brought to enforce it. It Avas successfully contended in the court below that there could be no recovery of any amount whatever on the contract, because the railroad company had not strictly complied with the original specifications and requirements provided therein for making the fill. The learned court below, at the conclusion of the plaintiff’s testimony, directed the jury to return a verdict for defendant on the ground that there can be no recovery for part performance of an entire contract, or where there has been failure to complete according to the terms thereof. It was held that inasmuch as the testimony showed that the fill had not been tamped in, and had not been placed as high up on the retaining wall as the specifications required, there was not a substantial compliance with the provisions of the contract, and the right of recovery was thus defeated. "We agree with the contention of the learned counsel for appellant that this position fails to take into consideration the true relation of the- parties to this contract and the rights and duties of each thereunder. This position would seem to assume' that the power company is the owner, and the railroad company the contractor, when, in the legal sense, under the facts of this case, the railroad company is the owner and the power company the contractor. It is true the railroad company did perform the work, but it did so in the capacity of a subcontractor of the power company, which in the first instance undertook to do the work and subsequently arranged with the railroad company to do it, and agreed to pay a certain amount when completed. It may be conceded that where an owner enters into a contract with a contractor for the construction of a building, or other improvement, to be erected according to plans and specifications agreed upon, which construction is under the supervision of an architect, who has authority to pass upon the kind and quality of materials used, and the character of work done, and who is authorized to determine disputes between the owner and contractor, substantial compliance with the plans and specifications must be shown, and, when required, a certificate from the architect showing completion must be produced before there can be a recovery. But this rule can have no application to the present case because the owner here, the railroad company, is not raising any question about the character of work done, or the quality of materials used, or that there is any dispute concerning the work between the parties, and concedes that there has been substantial compliance with the requirements of the contract. The railroad company concedes that the work was done to its entire satisfaction under the direction of an inspector, its own employee, authorized by the terms of the contract to pass upon and approve the work. Under these circumstances, it is not within the legal rights of the power company to say the railroad company demanded the work to be done in a certain way for its protection, our company agreed to do it in that way, but it not being convenient for our company to do the work, we agreed to pay your company for doing it according to its own specifications and requirements, and now that your company has done the work to its own satisfaction, our company will not pay for doing it, as it agreed to do, because your company made some changes in the method of doing the work required in the original specifications. It cannot be doubted, if the power company had performed the work itself instead of employing the railroad company to do it, and while doing the work the railroad company had suggested the changes made, and the power company, acting on these suggestions, had done the work in precisely the same manner as the railroad company did it, that there would have been substantial performance by the power company, and it would be relieved from further liability thereunder. When the work was done to the satisfaction of the railroad company, the party at whose instance aud for whose protection it was done, and accepted by it in full compliance with the contractual obligation of the power company, there was substantial performance of the contract and the right to recover attached. This would be true between the owner and contractor even in a building contract, as, for instance, suppose the owner had the right under the contract to insist upon the contractor completing the building according to plans and specifications, and in point of fact it was not so completed, but being satisfied with the building as completed the owner accepted it as a substantial performance of the contract, surely, in such a case, it could not be successfully contended, that there could be no recovery on the ground of failure to complete according to plans and specifications. It does not appear in the pleadings, or in the evidence produced at the trial, or in the argument of counsel here, that the retaining wall and the earth fill were constructed for any purpose connected with the business for which the power company was incorporated, but the whole record shows and the parties themselves concede that this construction was intended as a protection to the embankment and right of way of the railroad company. The earth fill, the subject-matter of this controversy, was not even located on the property of the power company. From the beginning of the negotiations between the parties every step taken indicates the sole purpose of the contracting parties to be the protection of the embankment and right of way of the railroad company. Protection from the back flow of water is what the railroad company demanded and what the power company agreed to give. "When, therefore, the railroad company which demanded this protection to its property and specified the kind of construction that would satisfy its demand, accepted the wall and fill as complete performance of the undertaking of the power company, how can the power company either in equity or in law deny its responsibility to pay what it agreed to pay by alleging that the work was not done according to the specifications and requirements of the railroad company ?

Again, the power company is not injured by the changes made by the railroad company in the method of making the fill. No additional financial burden is imposed at present and there can be no increased liability in the future. If at any time the construction should prove to be inadequate for the protection intended to be secured, and the embankment should give way at this point, and the railroad company should attempt to recover damages from the power company, or should undertake to compel additional protection, it would be a complete answer for the power company to say that the railroad company had taken the responsibility of changing the requirements of the construction intended for its protection, and had accepted the wall and fill as complete performance of the undertaking of the power company, and if this protection is inadequate, the fault is that of the railroad company, and not of the power company, and the railroad company is precluded by its own acts from claiming damages' or demanding additional protection.

Judgment reversed and a venire facias de novo awarded.

Mr. Justice Brown,

dissenting :

It seems to me to be impossible to reach the conclusion that the court below erred in this case, unless such conclusion is the result of a misapprehension of the undisputed facts. I shall state them as they appear in the documentary evidence and from the brief testimony of the only witness examined by the plaintiff.

It was discovered that the construction of a dam by the appellee would back the waters of a stream over on the property of the appellant. Instead of a resort to the courts to prevent this trespass the appellant and appellee agreed in writing that the latter should build a retaining wall along the creek between it and the former’s right of way. It was agreed not only that this wall should be built, but that the appellee would place against it as a support a bank of earth to “ be deposited in layers and well tamped,” and to extend, according to the testimony, to within five feet from the top of the wall. This tamped supporting earth was not to extend to the embankment of the railroad company, but there was to be a space between them at the foot of the support. That there may be no mistake as to this feature of the case, I quote from the appellant’s paper-book the words of its counsel: A blue print accompanying the specifications showed the proposed fill against the wall and thence running down to a point near the foot of the railroad. company’s embankment.” An inspector, to be appointed by the railroad company and paid by the power company, was to see that the material and workmanship in the construction of the wall and the placing of the support against it should conform to' the specifications; and such variations of sizes and dimensions from those shown on the drawings or plans as might be required by the emergencies of the construction and the development of the work were in all cases to be determined by said inspector. The solid concrete retaining wall, a little more than 2,000 feet in length, was built by the appellee, and of it the appellant makes no complaint. The appellee, instead of putting the support against the wall, made an agreement on October 31, 1905, with the railroad company that it should do that work. The agreement provided not merely that the work should be done as required by the railroad company, but in accordance with the specifications ” contained in the original, agreement. For this work, which the appellant agreed to do for the appellee, the latter agreed to pay, not a fixed sum, but at the rate of forty cents per cubic yard “for the number of yards actually contained within the said fill,” provided that it should not be liable in any event to pay for more than 8,930 yards. The following is the stipulation as to the extent of its liability: “ If, however, when the said materials shall be furnished and the work performed, the same shall measure less than the number of yards mentioned, the said power company shall only be liable for the number of yards actually contained within the said fill.”

The appellant claims that it is entitled to recover from the appellee $3,572, the maximum sura named in the agreement for placing the support against the wall. Let us turn to the testimony showing exactly what the appellant did, for this ought to be done in determining what, if anything, it is entitled to under the agreement, upon which it bases its right to recover.

Martin Gill, the only witness who testified in the case, stated that 10,780 cubic yards of earth had been dumped from the cars on the tracks at the top of the embankment forty feet from the wall down ovér the embankment with such force that some of it ran down against the wall. TTis testimony was as follows : “ Q. It was not tamped ? A. No, sir. Q. It was just one load dumped in on top of the other and shoveled down the bank ? A. Shoveled down the bank and plowed down with scrapers. Q. Are there a number of places along that wall where it is ten feet and over from the top of the w'all to the dirt ? A. I should judge there was.” When asked who instructed him how to do the work, his answer was that his instructions came from A. J. Neafie, the principal assistant engineer of the company. What the instructions were and what the witness did appear from the following extract from his testimony : “ Q. Did he instruct you how it was to be filled ? A. Not any more than to strengthen our bank. Q. Were you instructed to take care of the wall in any way, fill it, to back up the wall? A. Only to let it run down against the wall as it would come out of the cars and to make room with the men shoveling it in, until we got in our 8,930 yards. Q. You had no instructions to place an earth backing against this wall in accordance with certain requirements ? A. No, sir. Q. It was simply to fill it in from the standpoint of protecting your bank, or protecting the railroad bank? A. Yes, sir.” Here is affirmative proof by the plaintiff itself that it not only had not done that which it had agreed to do for the defendant, and for which the defendant had agreed to pay, but had done that which the defendant had never at any time been requested to do and had not agreed to do in the agreement of October 31, 1905. What the appellant required was that its land be protected from the backing of the waters of the stream upon it after the erection of the dam, and if the wall with its earth support, which the appellee agreed to erect to keep the waters out, was sufficient for that purpose, the land could not be flooded. Strengthening the embankment, the top of which was forty feet away from the wall, would not strengthen the wall or make it any more water-tight. Besides, the appellee never agreed, and it is not pretended that it did, to deposit earth in layers and tamp it “from the standpoint of protecting ” appellant’s embankment. The wall alone was to be strengthened by it. The purpose of the wall was to protect the embankment and the intervening space from the waters of the stream, and all the power company ever agreed to do, or was ever asked to do, was to protect the embankment by the construction of the wall with proper support. But now it is asked to pay for strengthening the embankment, which needs to be strengthened only to give better support for the tracks of the railroad company, and for this the railroad company alone should pay. How much of the earth dumped down over the embankment reached the wall does not appear. It may have been but a few hundred cubic yards, and it certainly could not have been the maximum of 8,930 yards, for Gill admits that at but a single point, a “key,” as he terms it, did the earth extend up to within five feet of the top of the wall, and at a number of places it was ten feet below.

One of the contentions of appellant’s counsel is that even if the embankment, and not the wall, was strengthened, the change was made by the authorized inspector of the company. This may be very briefly answered. An inspector appointed by the company could not change the contract nor the character of the work to be done under it. His power was limited to varying the sizes and dimensions from those shown on the drawings or plan, when such variations might “ be required by the emergencies of the construction and the development of the work.” He could not change a contract for the strengthening of the wall into one for strengthening an embankment which the appellee was under no duty to strengthen and which needed no strengthening as against the waters of the stream, if the wall was itself strong enough to keep them out. But even if an inspector could have done what is alleged was done here, no inspector was ever appointed by the company, and counsel for appellant very well knew this when he asked Gill the following question: “ Q. Who was the inspector, if you might call him such, in charge of the filling in, seeing that the fill was done according to the requirements of the railroad company ? A. I was.” A moment before this witness had testified that he was merely a division roadmaster of the appellant company.

As the defendant was not called upon to make any defense, we are unable to say whether the assumption that the appellee has not been injured by the changes is correct or not, but, if an averment in the affidavit of defense, offered in evidence by the plaintiff, be true, it unquestionably has been injured. That averment is: “ The defendants allege that the labor performed in filling in the said space by the said plaintiff was not done in accordance with the plans, specifications and requirements, but was done in such careless and negligent manner that it turns the surface water, running from the embankment and roadbed of the said plaintiff, against the said retaining wall, and that the said water flowed along the said retaining wall into and under the power house of the said Monroe County Water Power and Supply Company, thereby putting the machinery and belts under water and washing out and carrying away an embankment and a fill placed back of the power house of said defendant and along said retaining wall, to the great damage of the said defendant.” When the appellee agreed to pay for the support to be given to the wall, and which it would have given to the same if it had done the work itself, it might very naturally have had in mind protection to itself from what it complains of in its affidavit of defense; and if the support which was to be given to the wall by the appellant under its contract had been given, the surface water running from the embankment and roadbed of the railroad company could not flow along the retaining wall and into and under the power house of the appellee.

Again, it is urged, and with apparent sincerity, that when the railroad company agreed to put the earth support against the wall, it became a subcontractor for the appellee, and as it, in its dual capacity as owner of the property to be protected, is satisfied with the work which it itself did in its other capacity as subcontractor, it is none of the appellee’s business how the work was done, and it must, therefore, pay. This is a process of reasoning I am not able to follow. It logically means that if but one cubic yard of earth reached the wall and the remaining 10,779 yards were put upon the embankment as a support to it, the appellee must pay, if the appellant is satisfied to do without the support against the wall, and yet that support is all the appellee agreed to pay for. I have always understood that when a contractor for the erection of a building makes a contract with someone else for a portion of the work to be done, the subcontractor can recover from the contractor only for the work done under the subcontract, and only such sum as the contractor agrees to pay for work actually done; and if the owner of the property upon which a building is erected happens to become a subcontractor under his contractor, his rights as against the contractor are no higher than those of a stranger. No change of plans made by the owner with a subcontractor can affect the right of the contractor to recover from the owner his full contract price to be paid for the erection of the building, unless the changes are made with his consent. The power company did not agree to pay the railroad company any sum, much less a fixed one, to be relieved from any duty. Its agreement was to pay the railroad company for performing a duty for it, not, however, to exceed a certain sum, and as much less as the quantity of earth actually contained in the fill might be less than the estimate made by the railroad company of the amount that would be required. The duty which the power company was to perform was not performed by the railroad company, though that company agreed to perform it for a consideration. That consideration was not to exceed $3,572, and this maximum sum is now demanded of the appellee for being relieved from the duty. It never agreed to pay anything for such relief; its agreement was to pay for something to be actually done. What the railroad company contracted it would do it has admittedly not done, but has done something which it was never the appellee’s duty to do, which it had never contracted to do and which it never authorized the railroad company to do for it. That company sues on a contract in writing, but cannot turn to a word in it that says the appellee must pay for what has been done. The learned trial judge, in his opinion overruling the motion for a new trial, unanswerably said: “ The material was dumped out of the cars of the plaintiff company right along by its track, and was dumped with such force that some of it ran down against the wall; but the filling was not piled against the wall to the height and depth as shown on the plans, admitted in evidence, and the filling was not deposited in layers and well tamped. While the agreement was that the filling should at all places be within five feet from the top of the wall, there were some places where it was ten feet and over from the top of the wall to the dirt, and no place where the dirt was within five feet of the top of the wall. The dirt was merely dumped from the cars and shoveled down the bank and plowed down with scrapers. In short, the plaintiff company failed to do the work as provided for in the specifications and plans, nor was there even any substantial compliance with the same.”

In remanding the case for another trial the majority of my brethren do not seem to decide what the appellant may be permitted to recover. The agreement says the appellee “ shall only be liable for the number of yards actually contained within the said fill.” Is the appellant to recover more? What it did was not to support the wall with a fill, but “ to strengthen” the embankment, is the testimony of Gill. If the wall was sufficient without the support, as appellant seems to have thought it was, to keep the waters from its land, the embankment needed no strengthening as against the waters, and, therefore if appellee is to pay, it must pay for work which the appellant would have been required to do, assuming that its bank needed strengthening, if the dam had not been erected. The situation being just what I have stated it to be, the judgment clearly ought to be. affirmed.

Mestrezat and Potter, JJ., concur in this dissent.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Barnes's Estate.

      Practice, O. C. — Findings of fact — Evidence—Act of June 16, 1836, P. L. 682.
    Under the Act of June 16,1836, P. L. 682, which requires the Supreme Court on an appeal from the orphans’ court “to hear, try and determine the merits” of the case and “decree according to the justice and equity thereof,” the Supreme Court will not disturb a finding of fact by an auditing judge, confirmed by the court, unless there be no evidence to support it, or it is clearly so erroneous, that to uphold it would be injustice.

      Executor and administrator — Advances by executor — Bond for protection —Evidence—Parol evidence — Contradiction of written instrument.

    Where an executor takes from the distributees of the estate successive bonds to secure himself for necessary advances made by him to protect the estate, and at the audit he presents all of the bonds as existing liabilities against the distributees, the latter may show that the executor in taking the last bond, which was much smaller in amount than the others, had done so upon the distinct representation that the sum represented by that bond was all that was due him, and that he would destroy all the other obligations that had been given to him. The offer of such evidence is not an attempt to set aside a written instrument on the ground of fraud, accident or mistake.
    Argued March 26, 1908.
    Appeal, No. 86, Jan. T., 1908, by
    Charles Henry Barnes, Administrator of William Barnes, from decree of O. C. Phila. Co., Oct. T., 1906, No. 696, dismissing exceptions to adjudication in Estate of Charles Barnes, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of the Supreme Court.

      May 18, 1908:

      Error assigned was in dismissing exceptions to adjudication.

      E. B. Seymour, Jr., of Davison <& Seymour, for appellant.

      James H. Wolfe, with him Samuel A. Whitaker, for appellees.
   Opinion by

Mr. Justice Brown,

This is an appeal from a finding of fact by the orphans’ court. In asking us to reverse the decree that followed it, counsel for appellant cite the Act of June 16, 1836, P. L. 683, which makes it our duty, on an appeal from the orphans’ court, to hear, try and determine the merits ” of the case, and decree according to the. justice and equity thereof.” We are not, however, in discharging this duty, to disturb a finding of fact by an auditing judge, confirmed by the court, unless there be no evidence to support it, or it is clearly so erroneous that to uphold it would be injustice : Thompson’s Appeal, 103 Pa. 603 ; Lazarus’s Estate, 142 Pa. 104. We might affirm the decree below without saying more, for it is based upon a fact found upon sufficient evidence.

Charles Barnes died April 8, 1882, leaving to survive him a widow and five children, one of them a daughter by a former marriage. He gave her a legacy of $150, and devised and bequeathed the remainder of his estate, real and personal, to his wife for life, directing that upon her death it should be sold by his executors and the proceeds divided equally among his four children by his second marriage — James, William, John and Mary, wife of Henry Linaka. James and William were named as executors. The former having died in July, 1906, and the latter in September of the same year, the Commonwealth Title Insurance & Trust Company was appointed administrator, d. b. n. c. t. a., and the fund before the court for distribution consisted almost entirely of the proceeds of the sale of the testator’s real estate, sold some time after the death of the widow, which occurred in November, 1906. Three claims were presented against the fund for distribution by the administrator of William Barnes, two of which were disallowed. From their disallowance we have this appeal.

The contention of the appellant is that William Barnes became the acting executor of his father’s will, and from time to time advanced from his own funds, for the benefit of the estate, moneys for the payment of an assessment on building association stock, taxes, water rents, repairs, etc., taking to secure repayment of what he had advanced obligations from the widow, his two brothers and sister, in all of which he joined. The first of these, a bond for $150, dated May 22, 1893, was given to pay an assessment on building association stock. It was signed by the widow, James, William, John and Mary Linaka. On May 22, 1894, July 1, 1895, and November 20, 1897, three additional obligations, amounting in the aggregate to $375, were given to William by the same parties. On July 22, 1898, the four bonds so given to him were consolidated, and a new one given for $643.63 — the amount of principal and interest then due. Subsequently the same parties gave him three more bonds aggregating $350. These three bonds and the one for $643.63 were consolidated on March 23, 1903, and a new obligation for $1,500 was given to William. This was secured by a mortgage on the interests of the parties in the real estate of Charles Barnes. In 1904 another bond for $200 was given to William by the same parties. On October 6, 1S93, Mary Linaka gave him her promissory note for $300, payable one year after date, accompanied by an assignment of her interest in her father’s estate as collateral security. According to the testimony of her son she received no consideration for this obligation. Tie testified that it was given at his uncle’s suggestion to prevent his mother’s interest in her father’s estate from being seized by creditors whose claims were then embarrassing her. On April 2, 1906, William took a bond from his mother, his brother John and his sister Mary for $462.65. This claim was allowed by the court below, and the other two, the mortgage for $1,500 and Mary Linaka’s note for $300, were disallowed, because the court found as a fact that the obligation for $462.65 had been given to William and accepted by him as representing all that was due him on the other obligations held by him against his mother, brothers and sister.

William Barnes, as the acting executor, received the rents from his father’s real estate for a period of twenty-four years. He never formally accounted for these, but on April 2, 1906, when he took from his mother, his brother John and his sister Mary their obligation for $462.65, he evidently gave them credit for the rents received, less what he had paid to his mother. While it does not appear how the sum of $462.65 was agreed upon and fixed by the parties as the amount due William from the estate of his father for the advances made by him for the benefit of those interested in it, it does appear from sufficient evidence that the obligation was given to him upon his assurance that nothing more was due him, and that he would destroy all the other obligations held by him. John Linaka, a son of Mary Linaka, testified that when his uncle William asked his mother to sign the bond for $462.65, he said to her that that was all he had against the estate, and that he would destroy the other papers held by him. John Barnes, the brother of William, made a competent witness by being called by the appellant, testified in the same way, and Mary, also made a competent witness by the appellant, confirmed the statement of her son, saying that she told her brother she would not sign the bond for <$462.65 until she understood it, and that he said to her that that was every cent he had against the property. These three witnesses having been believed by the court, their testimony was sufficient for the finding.

This appeal seems to have been taken on the theory, encouraged by the dissenting opinion of a learned judge of the court below, that the appellees were attempting to impeach their obligations for $1,500 and $300, and had not done so by clear, precise and indubitable evidence. This is not the sitúa, tion at all. On the contrary, the two obligors called by the appellant testified that they had signed the obligations to their brother William, but further stated that he had procured from them their obligation for $462.65 upon the distinct representation that that sum was all that was due him from their father’s estate, and that he would destroy all the other obligations that had been given to him. Counsel for appellant seem to entirely overlook the distinction between impeaching an obligation and showing the balance remaining due upon it as fixed and agreed upon by the parties to it. The court below recognized this distinction, and, through the learned judge speaking for it, said: “ This is not an attempt to set aside written instruments on the ground of fraud, accident or mistake ; on the contrary, the oral testimony tends to show that a new agreement was made between all the children then living and the widow, and that the inducement for the signatures was the statement that all previous agreements were to be destroyed, and that the amount of the advances to be repaid was fully set forth in such agreement and covered all advances made by the obligee.”

Appeal dismissed and decree affirmed at appellant’s costs.


author: Mr. Justice Elkin,

text:
    Hunn, Appellant, v. Pennsylvania Institution for the Instruction of the Blind.

      Contract — Building contract — Performance—Time—Forfeiture—Allegata and probata — Architect.
    Where a building contract provides for a penalty in case of non-completion within the time specified, and also contemplates final completion by the owners in certain contingencies with the settlement with the contractors after such completion, an averment of complete performance by the contractors is, in so far as the construction of the building is involved, sustained by proof which shows that the contractors performed a large part of the work, and that the building was finally completed by the owners in accordance. with the contract, although not within the time specified. In such a case when the owners completed the building, the day of final settlement had arrived, subject, of course, to the respective rights of the contracting parties as defined by the contract.
    The law recognizes the right of parties to a contract to stipulate the method of arbitrating questions that may arise between them in the performance of mutual covenants, but no such right exists in the absence of an express covenant, and he who asserts it has the burden of establishing its existence.
    The usual arbitration clauses in building contracts refer to questions arising between the contractors and owners, and not questions that concern the performance of duties by the architects themselves. Such clauses are in derogation of the common-law right of trial by jury, and are not to be extended beyond the express covenants of the contracting parties.

      An arbitration clause, such as is usually inserted in a building contract, is not to be construed as showing an intention of the parties to deliberately enter into a covenant providing that the arbiters should have the right to pass upon and finally determine questions involving their own failure in the performance of duties.
    Where, under the terms of a building contract, the owners after part performance by the contractors, have taken possession of the building and completed it, it is not absolutely necessary for the contractors in a suit to recover the balance alleged to be due them to produce a certificate from the architects that the building had been properly completed. The certificate was intended as a protection to the owners, and they may waive their right in this respect, and the question whether they have waived their right is for the jury.
    Argued March 31, 1908.
    Appeal, No. 91, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1900, No. 1,139, on verdict for defendant in case of E. Hunn, Jr., Assignee for the benefit of creditors of J. Watts Mercur and Ulysses Mercur, late trading as J. W. Mercur & Company, v. The Pennsylvania Institution for the Instruction of the Blind.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover money alleged to be due on a building contract. Before Brégy, P. J.
    At the trial it appeared that J. Watts Mercur and Ulysses Mercur, trading as J. W. Mercur & Co., were contractors for the erection of a building for the Pennsylvania Institution for the Instruction of the Blind.
    The contract contained, inter alia, the following provisions :
    “ Should the contractors at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements on their part herein contained, such refusal, neglect or failure being certified by the architects, the owners shall be at liberty, after three days’ written notice to the contractors, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractors under this contract, and if the architects shall certify that such refusal, neglect or failure is sufficient ground for such, action, the owners shall also be at liberty to determine the employment of the contractors for the said work, and to enter upon the premises and take possession of all materials thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor ; and in case of such discontinuance of the employment of the contractors they shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owners in finishing the work, such excess shall be paid by the owners to the contractors, but if such expense shall exceed such unpaid balance the contractors shall pay the difference to the owners. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, whose certificates thereof shall be conclusive upon the parties as respects the amount due by either of them.”
    At the trial the plaintiff made the following offer :
    We offer to prove by this witness the completion of the contract, admitting that the building was not turned over until 153 days after the time fixed by the contract. But also propose to prove by this witness that, although the contract was dated June 30, 1897, the contractors were unable to proceed without the plans for the work, which were with the architects and retained by them. That though they then requested the furnishing of these plans, the architects did not furnish them until about August 1, 1897; that by reason of the failure of the architects on demand to furnish the plans, they were delayed in the progress of their work to that extent, and that, therefore, to that extent of time the noncompletion of the building is one for which they are not responsible.
    We also offer to prove by the witness that the original estimates for the work contemplated by the defendant were too high for the means the defendant had at hand to pay for them ; that action was taken on the part of the defendant requiring the architects to cut down the estimates and to revise the plans, and that by reason of the delay which the architects made in arranging for the alterations in the plans the work was delayed to the extent of a considerable number of days, which will be detailed in the testimony.
    We also offer to show by the witness that the plans of the architects upon which the work was built, and the drawings, rested the beams on the center walls at an improper point over the cellar arches, that in consequence of this imperfection in the plan after the beams had been put in proper position under the plan, they broke the arches down. That by reason of this a very considerable delay was occasioned to the contractors in the completion of their work. The amount of this delay was upwards of about one month.
    We also propose to prove that the architects required, in accordance with the plans, certain alterations and work to be done in accordance with these alterations. That the witness demanded compensation for the extra work and an allowance of time, that the architects allowed the compensation for the work but did not pass upon or determine, the question of an allowance of time. That this required and consumed extra time to the extent of many weeks, the amount of which the witness will state.
    We will also show that certain roofing tiles 'were to be furnished in accordance with the plans. That those roofing tiles were submitted to the architect in accordance with the plans, but that he determined to change the sort of tiles but did not determine what new kinds of tiles he would supply for upwards of a month, and that in consequence of that delay the work was delayed and a delay in completion to the extent of a month or upwards thereby arose.
    We offer in connection with that to prove that the work was finally accepted and completed, but with this delay in completion, and has -ever since been in the occupancy of the owner.
    The alterations referred to were by written direction of the architects named in the contract.
    In connection with this offer Mr. Johnson admits that owing to the bankruptcy of the Mercurs before the final completion, the defendant took possession of the premises, finished the work and charged the plaintiffs with the amount which they allowed credit for, of the cost of such finishing. Therefore, Mr. Johnson says that while the statement of claim appears to be for about $61,000, the real claim is practically but $300 or $400 more than $15,300, the amount charged by the defendant against the plaintiff for delay; that there were other payments made out of the funds for completion with our consent and that those payments are allowed, reducing the claim that is nominally made of about $61,000 by virtue of these deductions to practically a claim only for substantially the amount that has been retained for delay in completion.
    There were quite a number of liens filed and they were all settled up and the building was finally accepted when completed in the way stated by the owners, and the outlays for such work will be credited against the amount claimed here.
    This is a claim, in the first place, that the alterations did not delay the other work, but that they required an amount of time to complete those alterations; it is a claim, not that other contractors delayed the work or that there was an abandonment by the employees or destruction by fire; it is a. claim that the architects did not furnish the plan; it is a claim that the architects altered the plan so that it required, in order to take up the work, the waiting until they determined upon it; they altered the designs with regard to the tiles so that until we got those alterations we could not go on. Those are the delays of the agent of the owner so made in the contract and not of an independent contractor.
    Objected to. Objection sustained. Exception. [1]
    The court charged as follows:
    I have sustained, as. you have heard, the objection made to certain testimony that was offered. Counsel for the plaintiff announces that he has no further testimony to offer. Therefore, the case goes to you without any testimony and you will have to find for the defendant. Of course, you could not find for the plaintiff as he has offered no testimony. You will render a verdict, therefore, for the defendant. [2]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill ■ of exceptions; and (2) the charge, quoting it.

      May 18, 1908 :

      John G. Johnson, for appellant,
    cited: Rowe v. Gerry, 98 N. Y. Supp. 380 ; M’Combs v. M’Kenna, 2 W. & S. 216; Phillips & Const. Co. v. Seymour, 91 U. S. 646.

      Abraham M. Beitler, with him JET. Gordon MoCouch, for appellee,
    cited: Stewart v. Kelly, 16 Pa. 160; Diehl v. Adams County Mut. Ins. Co., 58 Pa. 443; Wilkinson Mfg. Co. v. Welde, 196 Pa. 508; Clark v. A. Garrison Foundry Co., 219 Pa. 426; Monongahela Navigation Co. v. Fenlon, 4 W. & S. 205; Reynolds v. Caldwell, 51 Pa. 298; Payne v. Roberts, 214 Pa. 568.
   Opinion by

Mr. Justice Elkin,

The plaintiff brought an action of assumpsit to recover an alleged balance due on a building contract and in his statement of claim averred performance. The defendant entered a plea of non assumpsit, payment and set-off, to which plaintiff replied non solvit, no set-off and issue. When the case came on for trial the plaintiff offered in evidence the contract, plans and specifications, and then produced as a witness J. W. Mercur, a member of the contracting firm. Counsel being asked what he intended to prove by this witness, placed on record an elaborate offer covering the purpose of the testimony to be given. Counsel for defendant objected on the ground that the contract between the parties showed that final payment was not to be made until the architects had certified that the work had been completed in accordance with the plans and specifications, and it was not proposed to show that the architects had passed upon questions in dispute between the parties, and for the further reason that complete performance having been averred, proof which shows nonperformance or part performance, is not sufficient to sustain the allegata, which objection was sustained by the court.

No further testimony was offered and the learned trial judge directed the jury to return a verdict for defendant. This appeal raises the question whether the proof offered, but rejected, should have been admitted and, if so, was it sufficient to sustain the averments of the declaration. It is elementary that the probata must sustain the allegata, and of course one who avers performance and fails to prove it has no right to recover. In the present case, however, the contention is not only that performance was averred, but that the proof offered showed performance within the meaning of the law. Whether the contention can prevail necessarily depends upon the facts. The suit was brought to recover the balance due for the construction of a completed building, and the facts show that the building was completed at the time the action was commenced. The performance averred and necessary to be proven was the completion of the building, not the completion within the time fixed in the contract. Failure to complete within the specified time did not forfeit the right to recover, if completed at a later date, but subjected the contractors who might be in default in this respect to the payment of a certain sum for each day of delay as liquidated damages. It was not necessary either to aver or prove completion on August 1, 1898, in order to recover such balance as might be justly due under the contract. Time is not of the essence of the contract in question in the sense that failure to complete within a fixed period forfeits the right to recover for work already done at the date fixed for completion, or yet to be done at that time. The contract provides, not a forfeiture of the right to recover, upon failure to complete on a certain date, but for liquidated damages to be deducted from the contract price. Nor, as we construe the contract, did the right to recover depend upon the completion of the building bjr the contractors themselves, because it is therein provided in clause eleven that upon the happening of certain contingencies the owners shall have the right to enter upon the premises, takes possession of materials, employ men and' complete the building, which right was exercised in this case. The final payment of any balance due the contractors, in the event of the owners electing to complete, was to be held in abeyance until the building was thus completed, when upon settlement the owners were authorized to deduct from the balance due the contractors, the cost of completion, and such damages as may have resulted to the owners by the alleged default of the contractors. By the express covenants of the contract it clearly appears the parties had in contemplation, first, completion by the contractors, and, second, under certain circumstances part performance by the contractors, and final completion by the owners, and the right to recover such balance as was justly due did not depend upon entire completion by the contractors, but upon completion, either by the contractors, or partly by the contractors and partly by the owners, and when completed in either way, final settlement was to be made in the manner provided. We, therefore, hold that the averment of complete performance in so far as the construction of the building is involved is sustained by proof which shows that the contractors performed a large part of the work and that the building was finally completed by the owners in accordance with the contract. When the owners completed the building the day of final settlement had arrived, subject, of course, to the respective rights of the contracting parties as defined by the contract. The contract itself pointed out the method of settlement, which was that the contractors were entitled to receive the total contract price for a completed building, with such allowance or deduction as should be made for alterations, less advances made from time to time, and in the event of the building being completed by the owners, then the cost of completion to be deducted, together with an allowance for such damage as may have resulted by delay or otherwise in completing according to contract. The contracting parties themselves provided an orderly and sensible .method of making settlement, and we can see no reason why pleadings framed and proofs offered, in an action brought to determine the legal rights of the parties, which produce and sustain an issue by means of which an alleged balance claimed to be due may be ascertained in accordance with the terms of the contract, should be held insufficient.

Another and perhaps more important question to determine is that which relates to the failure of the offer to show that matters in dispute between the parties had been submitted to the architects, as required by the contract, or that the architects had certified proper completion. By the terms of the contract the architects were made the arbiters of quéstions that might arise between the parties, and it was their duty to certify when the building was finally completed, and it must be conceded that if the contract referred to the arbitration of the architects, the questions of fact involved in the rejected offer of testimony, or if the architects were made the sole arbiters of these questions, and they have not in point of fact done so, the appellant would have no right to have a jury pass upon them. On the question of arbitration it may be stated that every matter included in the contract and referred to the architects must be determined by them. This is the rule of our cases, and while in some instances it would seem to be a harsh one, it is so firmly established that it must be accepted as settled law in this state. It is, however, in derogation of the common-law right of trial by jury and should not be unduly extended. As indicated in Payne v. Roberts, 214 Pa. 568, the arbitration clauses in such contracts refer to questions arising between the contractors and owners, and not to questions that concern the performance of duties by the architects themselves, and certainly the rule should not apply at all beyond the express covenants of the contracting parties. The law recognizes the right of parties to a contract to stipulate the method of arbitrating questions that may arise between them in the performance of mutual covenants, but no such right exists in the absence of an express covenant and he who asserts it has the burden of establishing its existence. If questions arise between the contracting parties not included in the arbitration clauses, or if the questions raised relate to failure or dereliction in the performance of duties by the architects themselves, the right to have these matters passed upon by a jury cannot be denied upon the ground of failure to arbitrate. Nearly all of the rejected offer of testimony relates to default in the performance of duties imposed upon the architects by the contract, and certainly it could not have been the intention of the parties to deliberately enter into a covenant providing that the arbiters should have the right to pass upon and finally determine questions involving their own failure in the performance of duties. At this stage of the case, it is perhaps only necessary to say that the arbitration clauses only refer to the questions therein specified, and do not relate to questions concerning the performance, or failure to perform, the professional duties of the architects. Nor do we agree that it is absolutely necessary for appellant to produce a certificate from the architects showing that the building had been properly completed before there can be a recovery under the circumstances of the present case. This covenant was intended as a protection to the owners, and if the building had been completed by the contractors, they clearly had the right to insist upon it, but it is equally clear that the owners could waive their right in this respect. If they chose to accept the building as completed by themselves, took possession of and occupied it as a completed building, it ought at least to be for the jury to say whether they had not waived their right to insist upon the certificate of the architects showing final completion. Indeed, if the facts warrant it, and this we cannot now determine, it might be the duty of the court to say as a matter of law that the acceptance by the owners amounted to a waiver of this provision of the contract.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Fell,

text:
    Richards, Appellant, v. Walp.

      Debtor and creditor — Payment—Presumption of payment — Evidence.
    The presumption of payment of a debt arises at the end of twenty years after the debt became due and demandable, and such presumption increases in strength each succeeding year afterwards. The burden of overcoming it is upon the creditor, and the sufficiency of the evidence offered is for the court.
    The presumption is equal to direct proof of payment, and it will prevail until overcome by direct proof of nonpayment, or the proof of facts and circumstances from which nonpayment may be clearly inferred.
    A scire facias sur mortgage was issued in 1903, to collect two installments of purchase money of $933.33 each, one due in 1876 and the other in 1877. The mortgage also secured the payment of $1,000 on the death of a widow who had a dower interest but who was living when the scire facias issued. The plaintiff offered testimony to rebut the presumption of payment, to the effect that in 1886 the mortgagor, after the death of the mortgagee intestate, leaving a husband and nine children surviving her, asked her son-in-law to aid in getting her heirs to sign off the back money due on the mortgage, and had offered to pay the heirs sums of money amounting to $600, and was told that they could not sign off because they were not of age. Held, that the testimony was insufficient to show that the installments of $933.33 each were not paid at the time the statement was made, since all that was said would apply as well, and even better, to the $1,000 which was then unpaid.
    Argued April 13, 1908.
    Appeal, No. 259, Jan. T., 1907, by defendant, from order of- C. P. Luzerne Co., Oct. T., 1903, No. 1,039; refusing to take off nonsuit in' case of John T. Richards, Administrator of the Estate of Eliza Balliet, deceased, v. Hiram Walp, E. G. Tacy and Wilson Houseknecht.
    May 18, 1908:
    Before Mitchell, O. J., Fell, Mesteezat, Potter and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Ferris, J.
    The opinion, of the Supreme Court states the facts.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Wm. O. Johnston, with him James R. Soouton, for appellant.
    Appellant contends that it was for the jury to determine what appellee meant when he was using the words “ back money on the mortgage,” in his attempt to arrange a settlement of money which he admitted he owed on the Eliza Balliet mortgage, and appellant further contends that this court has held that an attempt to arrange a settlement of money due on a specialty within twenty years of its date is sufficient recognition of the debt to arrest or repel the presumption of payment from lapse of time : Runner’s App., 121 Pa. 649 ; Smith v. Shoenberger, 176 Pa. 95 ; O’Hara v. Corr, 210 Pa. 341.

      J. Q. Orevelmg, with him D. L. Creveling, for appellee.
    The evidence given by the plaintiff would not legitimately give rise to the inference of nonpayment of the first two installments, and the jury, without some evidence to that end, should not be allowed to guess that he meant them : Gregory v. Com., 121 Pa. 611 ; Peters’s App., 106 Pa. 340 ; Beale’s Executor v. Kirk’s Admr., 84 Pa. 415 ; Sawyer v. Link, 193 Pa. 424.
   Opinion by

Mr. Justice Fell,

The question raised by this appeal is whether the proofs presented at the trial were sufficient to rebut the presumption of payment arising from the lapse of time. The proceeding was on a mortgage to collect two installments of purchase money of $933.33 each, one clue in 1876 and the other in 1877. The mortgage also secured the payment of $1,000 on the death of a widow who had a dower interest, but who was living when the scire facias issued in 1903.

The testimony relied upon to rebut the presumption of payment was that in 1886 the mortgagor, after the death of the mortgagee intestate, leaving a husband and nine children surviving her, asked her son-in-law to aid him in getting her heirs “ to sign off the back money due on the mortgage,” and had offered to pay the heirs sums of money amounting to $600, and was told that they could not sign off because they were not of age. The learned trial judge regarded this testimony as insufficient to show that the installments of $933.33 each were not paid at that time, since all that was said would apply as well to the $1,000 which ivas then unpaid, and a nonsuit was entered.

The debt sought to be recovered was due and demandable twenty-six years before suit was brought. The presumption of payment arose at the end of twenty years, and it had increased in strength each succeeding year afterwards. The burden of overcoming it was upon the plaintiff, and the sufficiency of the evidence offered was for the court: Reed v. Reed, 46 Pa. 239 ; Beale’s Executor v. Kirk, 84 Pa. 415. “In a case like this the defendant stands upon a presumption of law, which is binding alike upon the court and jury until invalidated by proof, and the plaintiff in rebuttal upon a presumption of fact only, which he claims to arise out of the evidence ; whether or not the matters sought to be established are true is a question for the jury, but whether the facts and circumstances relied on, if true, would legitimately give rise to the presumption of fact referred to, is necessarily a question of law for the court: ” Gregory v. Com., 121 Pa. 611. This presumption is equal to direct proof of payment: Sellers v. Holman, 20 Pa. 321, and it will prevail until overcome by direct proof of nonpayment or the proof of facts and circumstances from which nonpayment may be clearly inferred.

The plaintiff’s testimony did not come up to this standard. The conversation testified to was seventeen years before suit brought or a demand of payment made. The mortgagor lived on the farm for twenty years, and the mortgagee and her chil-' dren lived in the same neighborhood, and no reason was shown that would account for a postponement of payment. The conversation itself had greater application to the $1,000 secured by the mortgage than to the installments, because the amount of the proposed payment was near the value of the present interest of the mortgagee’s heirs in the sum to be paid after the death of the widow who had a dower interest.

The judgment is affirmed.


text:
    Lazarus, Appellant, v. Lehigh & Wilkes-Barre Coal Company.

      Equity — Ejectment hill — Title to land — Mines and mining — Lease-Landlord and tenant

    A bill in equity to compel an accounting for royalties for coal mined under certain land specifically described, is properly dismissed for lack of jurisdiction, where it appears that the plaintiffs claim under a paper purporting to be a lease, but which had been previously adjudicated to be a sale of coal, and the defendants deny plaintiffs’ title to the land. In such a case plaintiffs cannot demand an accounting until they have established their right at law.
    Argued April 13, 1908.
    Appeal, No. 304, Jan. T., 1907, by plaintiffs, from decree of C. P. Luzerne Co., Oct. T., 1904, No. 8, dismissing bill in equity in case of George Lazarus et al. v. The Lehigh & Wilkes-Barre Coal Company.
    Before Mitchell, C. J., Fell, Mestbezat, Potter and Stewabt, JJ.
    Affirmed.
    Bill in equity for an injunction and for an account. Before Halsey, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellants.
    The dispute concerning the title is not sufficient to oust jurisdiction : Woodward v. D., L. & W. R. R. Co., 121 Pa. 344; Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 387 ; Penna. Coal & Coke Co. v. Witherow, 215 Pa. 327; Denniston v. Haddock, 200 Pa. 426 ; Coolbaugh v. Coal Co., 213 Pa. 28 ; Wyoming Coal & Transportation Co. v. Price, 81 Pa. 156 ; Hamilton v. Pittock, 158 Pa. 457.
    May 18, 1908:
    The objection of adequate remedy at law is not sufficient to oust jurisdiction : Ashhurst v. Iron Co., 35 Pa. 30 ; Allison’s Appeal, 77 Pa. 221; Grubb’s Appeal, 79 Pa. 120; Winton’s Appeal, 97 Pa. 385 ; Johnston v. Price, 172 Pa. 427 ; Gwinn v. Lee, 6 Pa. Superior Ct. 646 ; Myers v. Bryson, 158 Pa. 246 ; Orr v. Peters, 197 Pa. 606 ; Gray v. Citizens’ Gas Co., 206 Pa. 303.

      A. H. MeOlmtoek, with him Arthur Hillman and Henry W. Pahner, for appellee.
    A court of equity has no jurisdiction in the case, as the question at issue is merely one of title, and such title should be established at common law, before any direct or collateral question in reference thereto can be brought before a court sitting in equity: Hoch v. Bass, 133 Pa. 328 ; North Penna. Coal Co. v. Snowden, 42 Pa. 488; Washburn’s App., 105 Pa. 480 ; Leininger’s App., 106 Pa. 398 ; Thomas v. Hukill, 131 Pa. 298 ; Duncan v. Iron Works, 136 Pa. 478 ; Saunders v. Racquet Club, 170 Pa. 265 ; North Shore Railroad Co. v. Penna. Co., 193 Pa. 641; Coward v. Llewellyn, 209 Pa. 582.
   Opinion by

Mr. Justice Fell,

It was averred in the bill filed that the plaintiffs’ predeces; sors in title in 1871 leased to parties whose rights have become vested in the defendant all the coal under 225 acres of land described, with the right to mine and remove the same; that the agreement provided that a fixed royalty should be paid for all coal mined that would pass over a screen of five-eighths of an inch mesh, and that in violation of the agreement the defendant was using screens of a larger mesh, which decreased the amount of coal for which a royalty was to be paid under the agreement; that included in the lease were two acres and 143 perches from which the defendant was mining coal for which they refused to account. The prayers were for an injunction to compel the use of a screen of five-eighths of an inch mesh ; for an account for royalties for coal that would have passed over a screen of five-eighths of an inch mesh; and for an account for the coal mined from the two acres and 143 perches.

Before the hearing of the case the parties adjusted all matters relating to the use of a larger mesh, and by agreement filed they were withdrawn from the consideration of the court. The only matter in controversy remaining was the plaintiffs’ right to royalties for coal mined from the two acres and 143 perches. The answer denied that the plaintiffs owned this land and denied their right to maintain a proceeding in equity or to ask for an accounting until they had established their right at law. The only question remaining was as to the ownership of the land in dispute. All other subjects of controversy mentioned in the bill had been withdrawn and were out of the case as fully as if they had been eliminated by an amendment or had never been in it. At the hearing the defendant set up a title which had become vested in it by a chain of conveyances, orphans’ court proceedings,, and by possession and recognition by the plaintiffs’ predecessors in title. The learned judge found that the agreement of 1871, although termed a lease, was a sale of the coal, and that there was a disputed question as to the title to the land in controversy which a court of equity was without jurisdiction to determine.

The appellants’ contention was based on the assumption that the agreement of 1871 created the relation of landlord and tenant, and that the defendant in possession as tenant could not dispute its landlord’s title. While the rules applicable to sales are not to be applied indiscriminately to all conveyances of the right to mine and remove all the coal in a given tract of land : Denniston v. Haddock, 200 Pa. 426, the construction to be placed on the agreement of 1871, on which the plaintiffs’ claim is based, has been settled by decision. It was before this court on the appeal in Lazarus’s Estate, 145 Pa. 1, and it was held that, although in form a lease for ninety years, it was a grant of an interest in the land itself; not a mere license to take the coal but a sale of it, conditioned on its being removed in the time specified.

The decree is affirmed at the cost of the appellants.


text:
    Frederick v. Margwarth, Appellant.

      Arbitration — Incomplete award — Continuance of the agreement.

    When an arbitrator has made and delivered his award, the special power conferred upon him ends; but his award must be final, complete and coextensive with the terms of the submission. If the arbitrator through a mistake fails to consider and decide a part of the dispute submitted to him, the award is invalid because incomplete; but the agreement is still in force and it is competent for him to finish his work by making a full and complete award.
    Where an agreement to arbitrate is a part of a contract into which the parties have entered, neither party can revoke it without the consent of the other.
    Argued April 14, 1908.
    Appeal, No. 400, Jan. T., 1907, by defendants, from judgment of O. P. Luzerne Co., May T., 1905, No. 187, on verdict for plaintiff in case of S. Y. Frederick v. William EL Margwarth and Frank J. Margwarth, trading as Margwarth Bros.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on an award of arbitrators. Before Lynch, P. J.
    The opinion of the Supreme Court states the case.
    Yerdict and judgment for plaintiff for $4,868.75. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      Richard B. Sheridan and Samuel Gustine Thompson, with them John T. Lenaham,, for appellants.
    The rule of law is maintained with great unanimity that when an arbitrator has made, published and delivered his award his powers of arbitration are at end, and he becomes thereafter a stranger to the agreement. His powers being special, when he has once acted the submission is at an end so far as he is concerned: Robinson-Rea Mfg. Co. v. Mellon, 139 Pa. 257; Porter v. Scott, 7 Cal. 312; Thompson v. Mitchell, 35 Maine, 281; Lansdale v. Kendall, 4 Dana (Ky.), 613; Martin v. O’Neal, 2 Litt. 54; Mand v. Patterson, 19 Ind. App. 619 ; Aldrich v. Jessiman, 8 N. H. 516 ; Smith v. Smith, 28 Ill. 56; Doke v. James, 4 N. Y. 568 ; Woodbury v. Northy, 3 Maine, 85 ; Ind. Cent. Ry. Co. v. Bradley, 7 Ind. 49 ; Butler v. Boyles, 29 Tenn. 154; Bayne v. Morris, 68 U. S. 97; Henfree v. Bromley, 6 East’s Rep. 309; Johnson v. Andress, 5 Phila. 8 ; Erie v. Tracy, 2 Grant, 20 ; Brooke v. Bannon, 3 W. & S. 382.
    May 18, 1908:

      John H. Bigelow, with him G. W. Kline and James L. Lenahcm, for appellee.
    The award rendered October 14, 1899, declared invalid and void because of sufficiency was, in contemplation of law, no settlement of the subject-matter of dispute : Hamilton v. Hart, 125 Pa. 142.
   Opinion by

Mr. Justice Fell,

This action was on the award of an arbitrator named in a building contract, and empowered to settle all disputes that might arise between- the parties in relation to the contract or the building to be erected, to fix the allowance to be paid for improper materials or work, or for delay in completing the building, and to “ decide any and every dispute ” that might arise. A dispute arose and the arbitrator, after hearing the parties, made an award in the plaintiff’s favor on which suit was brought. At the trial of that action it was claimed by the defendants that the award was invalid because not coextensive with the submission, and it appeared from the testimony of the arbitrator that he had failed to pass upon a number of disputed matters that had been submitted to him. The court directed a verdict for the defendants for the reason set out on the record, that the award was incomplete. The arbitrator subsequently gave the parties written notice of the time and place of a meeting when he would hear them as to all matters in dispute arising under the contract. At this meeting the plaintiff presented his claims; the defendants refused to present any testimony, denied the authority of the arbitrator to act, and served on him a written notice of the revocation of his appointment. The arbitrator passed upon the disputed matters not before considered by him, and made the award on which this action is based.

The main contention of the appellant is that the arbitrator’s authority ended with the making of the first award. The rule undoubtedly is that when an arbitrator has made and delivered his award, the special power conferred upon him ends. But an award must be final, complete and coextensive with the terms of the submission. The arbitrator, through mistake, failed to consider and decide a part of the dispute submitted to him, and the award was invalid because incomplete. But the agreement was still in force, and it was competent for the arbitrator to finish his work by making a full and complete award : Hamilton v. Hart, 125 Pa. 142.

The agreement to refer was a part of the contract into which the parties entered, and the defendants could not withdraw from it: Kennedy v. Poor, 151 Pa. 472; Gowen v. Pierson, 166 Pa. 258 ; McCune v. Lytle, 197 Pa. 404. In the case last cited it was said by our Brother Beown : “ If the agreement was a mere naked submission, either party could have revoked it before the award ; but if it had become a contract between them, it bound each as such, and could then be revoked only by mutual consent.”

The judgment is affirmed.


author: Per Curiam,

text:
    Fellbush, Appellant, v. Egen.

      Deed — Form of paper — Construction—Intention—Evidence—Covenant to stand seized.

    Where an instrument is unquestionably a deed in form, and the language used is fairly capable of only one construction, the intent of the maker must be gathered from his language, and not from evidence dehors the instrument.
    It is only where the grantor's words are ambiguous to the extent of being capable of more than one construction that resort can be had to other evidence dehors the instrument to discover his intent.
    By a paper styled an indenture in which a husband was mentioned as of the first part, and his wife of the second part, the husband granted and conveyed to the party of the second part certain land described. Following the description of the land were these words: “The full intent and meaning of this conveyance is that the party of the second part shall enjoy said property for and during the term of her natural life. Said life estate to take effect upon the death of the grantor herein, and the remainder to go to the children of the said parties of the first and second part.” Held, that the paper was a deed, which even if it passed no present estate was good as a covenant to stand seized.
    Argued April 14, 1908.
    Appeal, No. 14, Jan. T., 1908, by plaintiff, from judgment of O. P. Luzerne Co., Feb. T., 1907, No. 29, for defendant on case stated in suit of Justus Fell-bush v. William F. Egen.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    From the record it appeared that the defendant objected to the title because of a recorded .paper, the material portions of which were as follows :
    “ This indenture made the day of December, 1901, in the year of Our Lord One thousand nine hundred and one between Justus Fellbush, of the City of Wilkes-Barre, Luzerne County, Penna., of the first part, and Frances Fellbush, his wife, of the same place, on the condition and stipulation below referred to, of the second part.
    “ Witnesseth, that the said party of the first part, for and in consideration of the sum of one dollar and other good and valuable considerations, said one dollar being lawful money of the United States of America, well and truly paid by the said parties of the second part to the said party of the first part, at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, has granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed by these presents, doth grant, bargain, sell, alien, enfeoff, release, convey and confirm, unto the said parties of the second part, the surface and right of soil-only of and to the following lot, piece or parcel of land, situate, lying and being-in the City of Wilkes-Barre, Luzerne County, Pa., bounded and described as follows: . . . .
    “ The full intent and meaning of this conveyance is that Frances Fellbush shall enjoy said property for and during the term of her natural life, said life estate to take effect upon the death of the said Fellbush — the grantor herein and the remainder to go to the children of the said Justus and Frances Fellbush.

      “Together with all and singular the buildings, improvements, woods, ways, rights, liberties, privileges, hereditaments and appurtenances to the same belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim, and and demand whatsoever, both in law and equity, of the said party of the first part, or, in and to, the said premises with the appurtenances, excepting and reserving, however, as aforesaid.
    “ To have and to hold the said described surface, hereditaments and premises hereby granted and released, or mentioned and intended so to be, with the appurtenances, as herein stipulated unto the said party of the second part, to the only proper use, benefit and behoof of the said party of the second part, excepting and reserving, however, as aforesaid.
    “ And the said Justus Fellbush and his heirs, executors, and administrators, doth by these presents, covenant, grant, and agree to and with the said party of the second part, that he, the said Justus Fellbush, and his heirs, all and singular, the hereditaments and premises hereinbefore described and granted, or mentioned, and intended so to be, with the appurtenances, unto the said party of the second part, against him the said Justus Fellbush and his heirs, and against all and every other person or persons, whomsoever, lawfully claiming or to claim the same or any part thereof, subject to the reservations herein before set forth shall and will warrant and forever defend.
    “ In witness whereof, the said .party of the first part to these presents .hereunto set my hand and seal. Dated the day and year first above written.
    “Justus Fellbush.” [seal.]
    The court entered judgment for defendant on the case stated.

      Error assigned was in entering judgment for defendant on the case stated.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellant.
    No paper-book or argument, for appellee.

      May 18, 1908:
   Per Curiam,

This case is clearly ruled by Fellbush v. Fellbush, 216 Pa. 141. It was there held that the instrument in question is a deed. It is unquestionably a deed in form, and where the language used is fairly capable of only one construction, as it is here, the intent of the maker must be gathered from his language. It is sometimes said that the question is not what he may have meant, but what is the meaning of his words, a most unfortunate form of expression, for the construction must always be according to his actual intent, whatever the words used, but where the meaning of his words is clear his intent is to be gathered solely from them. It is only where his words are ambiguous to the extent of being capable of more than one construction that resort can be had to other evidence dehors the instrument to discover his intent. In 216 Pa. it was clearly held that the instrument is a deed, and even conceding (what is not an allowable concession) that it was capable of more than one construction, there was no evidence dehors to rebut the prima facie character.

As to the technical objection that no present estate passed from the grantor, even if that were of more weight than it is, the deed would be good as a covenant to stand seized.

Judgment affirmed.


text:
    Lynch v. Lynch, Appellant.

      Ejectment — Finality of action — Pending action — Acts of May 8, 1901, P. L. 142, and April 23,1903, P. L. 293.
    The Acts of May 8, 1901, P. L. 142, and April 23, 1903, P. L. 293, making one verdict and judgment in a legal ejectment final and conclusive, do not apply to an action of ejectment begun on February 19,1889, and in which final judgment was entered on September 18,1903.
    Argued April 15, 1908.
    Appeal, No. 47, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1903, No. 938, on verdict for plaintiff in case of Edward A. Lynch v. Sarah A. Lynch.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Ejectment for land in Pittston township. Before Halsey, J.
    At the trial a verdict was rendered in favor of the plaintiff.
    On a rule for a new trial Halsey, J., filed the following opinion :
    This is an action of ejectment brought by the plaintiff to recover an undivided one-fourth interest in a piece of land in the township of Pittston, this county, containing 527 acres and 122 perches, being parts of three respective tracts of land in the warrantee names of Jesse Fell, Jonathan Hancock and David Young. The action has been pending in this court since February 19,1889. It has been on appeal in the Supreme Court. It has been heard upon motion for a new trial in this court and it is now here in this action brought by the plaintiff against the defendant upon a writ that issued on September 15, 1908.
    In trying the action, we were governed by the lines marked by the several respective courts in the prior trials of the same issue in such courts. The reasons alleged for a new trial are almost entirely those that have been contended for by the defendant in the trials of the action heretofore. The one exception is as to whether or not the plaintiff was not concluded by a former verdict in this case on December 13, 1902, upon which judgment was entered on September 18, 1903.
    • Under an Act of assembly approved on May 8, 1901, P. L. 142, the first section of this act provides, that where one verdict shall in any writ of ejectment between the same parties be given for plaintiff or defendant and judgment entered thereon, no new ejectment shall be brought, but such verdict and judgment thereon shall be final and conclusive and bar the right. Sec. 3 of the same act provides: “ Nothing in this act shall be construed so as to apply to any writ or writs of ejectment now pending.” In explanation of the proviso of this Act, the legislature on April 23,1903, P. L. 293, amended sec. 3 of the act of 1901, by enacting that nothing in this act shall be construed to apply to lands or tenements as to which any writ or writs of ejectment were pending- and final judgment not entered at the time of the approval of the act thereby amended. As we have seen, the act was approved on May 8, 1901.
    May 18, 1908:
    We cannot conclude that the acts of May 8, 1901 and April 23, 1903, apply to these actions. It is our conclusion that they are excepted by the said two respective acts out of the applicability of the first section of the act of May 8, 1901. The original act was approved on May 8, 1901. The action in No. 416, February Term, 1898, was begun on February 3, 1898, and no final judgment was entered in that case until September 18, 1903. The act of April 23, 1903, specifically excludes the operation of the act of May 8, 1901, as to all cases in which any writ or writs of ejectment were pending and final judgment not entered at the time of the approval of the act hereby amended. The act was approved on May 8, 1901, the amended act approved April 23, 1903, and final judgment was not entered until September 18, 1903. By exact application of the two respective acts to the facts of this case, the act of May 8, 1901, does not apply. It is our judgment that it does not apply under the ruling of the Supreme Court in the case of Neeld, Appellant, v. Cunningham, 216 Fa. 523.
    Hule discharged.

      Errors assigned were various rulings on the instructions.

      A. Ricketts, for appellant.

      James L. Lenaham,, with him John T. Lenahan, for appellee.
   Per Curiam,

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


text:
    Feuerstein v. Bertels, Appellants.

      Wills — Devise—Estate in fee.

    Testator gave his wife all his household goods with power to dispose of them if she wished. He further directed as follows: “I give and bequeath to my wife all the rest and residue of real estate together with any and all estate right of interest in lands which I may acquire after the date of this will. I give and bequeath to my wife all the income from stocks and bonds which I may have [this given in lieu of her dower] to have and to hold during her life.” Held, that the wife took an estate in fee in the real estate.
    Argued April 15, 1908.
    Appeal, No. 58, Jan. T., 1908, by-defendants, from judgment of C. P. Luzerne Co., Feb. T.', 1908, No. 176, for plaintiff on case stated in suit of A. Maria Feuerstein v. Anna M. Bertels, defendant, and Charles F. Feuerstein et al., interveners.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Cases stated to determine the marketable title to real estate.
    From the record it appeared that the plaintiff claimed title under her husband’s will, which was as follows :
    “ Know all Men by these Presents that I Charles F. Feuerstein of Wilkes-Barre, Luzern Co Pa. Being of Sound disposing Mind and Memory do Make and Publish this my last will and Testament. I give and bequeath .... small legacies. I give and bequeath to my Wife A. Maria all my household goods. Excepting those at Lake Cary Wyoming Co Pa. and all the rest of my Personal property. Excepting the Boats at Lake Cary Wyoming Co Pa. After payments of my Debts and leagacies. I give and bequeath to my Wife A. Maria, all the rest and residue of Real Estate together with eny and all Estate right of Intrest in Lands which I may acquire after the date of this Will. I give and Bequeath to my wife A. Maria, all the Incom from Stocks and Bonds which I may have. (This given in lieu of her Dower) to have and hold During her life. But on her desease The remainder there of I give and Devise, to Maud G. Shotwell to her own use and separate" use free from the Interference or controle of her Husban. Three Eight Intrst. To Charles F. Feuerstein three eight intrst. to Mary L. Miller, and Justine N. Miller, and Pauline M. Miller, of N. Y. and Justine Miller of N. Y. each one Sixteenth intrest. My wife to Dispose if she wishes to of all household goods Excepting those at Lake Cary.”
    Fuller, J., filed the following opinion :
    The sole question here presented is whether the plaintiff took an estate in fee or only for life under the will of her husband, Charles F. Feuerstein, who died without issue.

      If she took in fee she is entitled to judgment, otherwise, not.
    In disposing .of real estate the will says : “ I give and bequeath to my wife, A. Maria, all the rest and residue of real estate, together with any and all estate, right or title in lands which I may acquire after the date of this will.”
    This provision is contained in a sentence distinct and complete by itself, and, of course, passed the whole estate of the testator, unless it appears elsewhere in the will, that he intended to devise a less estate.
    Elsewhere in the will are provisions which leave upon the mind of the reader an impression that the testator perhaps did intend to devise a less estate.
    For example, in the sentence succeeding the one above quoted, it says : “ I give and bequeath to my wife, A. Maria, all the income from stocks and bonds which I may have (this given in lieu of her Dower), to have-and to hold during her life.”
    But we discover no good reason for extending the effect of the parenthetical and subsequent words in this provision beyond their immediate context and antecedent?
    Again, in the beginning of the will is an absolute bequest to the wife of household goods, while at the end is a provision authorizing her “ to dispose of them if she wishes to,” which was, of course, superfluous, if ah absolute bequest was intended.
    But that provision would not limit even the bequest of household goods, much less the devise of land.
    If the testator really intended, as we may indeed conjecture, to devise less than a fee in his land, he has not expressed the intention in a manner to overcome well-established canons of construction which prefer an absolute to a defeasible estate, a fee simple to a life estate, a vested to a cóntingént interest, the primary to the secondary intent, the first taker to the second taker, arid a wife to collateral relatives, in determining the object ánd extent of' a testator’s bounty.
    In its use .of punctuation and of legal terms the will affords no clue by which we can safely, depart from the strict and literal interpretation of the provision relating to real estate, as passing the entire estate of the testator and vesting a fee in his wife.

      May 18, 1908:
    . Therefore, now, January 6, 1908, judgment is entered in accordance with the terms of the case stated in favor of the plaintiff and against the defendant in the sum of $1,525.

      Error assigned was in entering judgment for plaintiff on the case stated.

      Anthony L. Williams, for appellants.

      W. Alfred Valentine, with him G. Fred Lazarus, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


author: Pee Cuexam,

text:
    Glick v. Lehigh Valley Coal Company, Appellant.

      Mines and mining — Coal—“Pea coal” — “Buckwheat, rice and barley coal” — Lease.
    Where a coal lease fixes a certain rental for pea coal, and defines pea coal as a “coal which passes with the dirt through a screen of three-quarters of an inch mesh,” and the lessee admits that he mined and sold coal known as buckwheat, rice and barley coal, all of which passed through a screen of three-quarters of an inch mesh, he cannot allege as a ground for not paying royalties on such coal that the sizes specified were not known as “pea coal” at the time the lease was made, or at the present time, or was pea coal as defined by the lease.
    Argued April 15, 1908.
    Appeal, No. 68, Jan. T., 1908, by defendant, from order of C. P. Luzerne Co., June T., 190Y, No. 125, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George C. Glick, Administrator d. b. n. c. t. a. of Henry Smith, for the use of Albert P. Smith et al., Assignees, and Sarah Smith and Sarah J. Glick, Executors and Trustees of George Smith, deceased, v. The Lehigh Valley Coal Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Assumpsit for royalties.
    Eule for judgment for want of a sufficient affidavit of defense.
    The court filed the following opinion :
    By written contract under seal entered into of June 1, 1868, Smith et al. demised and to mine let unto Swoyer and Mitchell all the coal lying and being in, under and upon 134 acres and eighty-eight perches of land, being lot No. 63, first division, certified township of Pittston, Luzerne county, Pennsylvania, together with the right to open, mine and remove said coal through the surface of the land, to have and to hold the coal and surface and the interest, the estate, right and privileges hereby demised, with the appurtenances, their executors, administrators and assigns, until all tbe merchantable coal upon the premises available by proper, skillful and careful working shall have been mined out and exhausted.
    In consideration thereof the parties of the second part covenant and agree to pay certain rentals therein specified for all coal mined and removed in any one year over 25,000 tons and under 50,000 tons, fifteen cents per ton; and for all coal mined and removed in any one year over 50,000 tons, fourteen cents per ton, the rentals at above rate to be paid on all merchantable coal, “ excepting, however, that coal which is known to the trade as pea coal, the rental for which shall be at half price. Pea coal is hereby defined to be that coal which passes with the dirt through a screen of three-quarters of an inch mesh.” The miners agreed to mine the said coal in a careful, skillful and prudent manner, and by the best possible way, and to take out all available coal. The weights returned by the transporting companies to be taken as evidence of the amount mined and removed, and the lessors are given free access to all shipping and sales books.
    By sundry convejmnces the property and all the rights of Swoyer and Mitchell passed to and became vested in defendant company, which is now and has for several years been operator and lessee of the premises.
    The amended statement of plaintiff, filed September 25, 1901, concisely sets out the facts relied upon for the judgment. They are: 1. The defendant has mined and shipped 163,430 tons and sixteen cwt. of merchantable coal denominated ‘ by defendant as “ buckwheat coal ”; 26,601 and five cwt. merchantable coal denominated by defendant as “ rice coal ”; 5,509 tons and nineteen cwt. merchantable coal denominated by defendant as “ barley coal,” as shown by a table furnished by defendant to plaintiffs and annexed- to and made part of their statement. 2. For the purpose of making power, defendant has consumed under its boilers 80,217.7 tons merchantable coal, and that defendant has paid for' coal mined of the sizes larger than buckwheat, rice and-barley, only.
    The supplemental affidavit of defense (the original affidavit of defense purports to have been made by Mr. Warriner, manager for defendant, but is signed and sworn to by Mr. Woodward only) admits defendant mined, shipped and sold buckwheat, rice and barley coal, of the quantity set out in plaintiffs’ statement of August 27, 1906, but denies that the tonnage of this coal was of the amount set out in the amended statement, and denies that such was pea coal as known to the trade at the time when the lease was made, or at the present time, or was pea coal as defined by the lease, and denies it has consumed under its boilers any coal which the defendant is liable to pay for. On October 30, 1907, exceptions were filed to this affidavit of defense.
    By the terms of the contract the lessors demised all- the coal, with the right to open mines and remove the coal, the lessee to have and to hold until all the merchantable coal available by skillful and proper working should be exhausted. It was agreed by the parties that certain rentals should be paid on all merchantable coal, that pea coal shall be paid- for at half price. The contract makes it unnecessary to search elsewhere for what the parties considered such coal. They provided in apt and explicit words what they meant it should be, as follows : “ Pea coal is hereby defined to be that coal. which passes, with the dirt, through a screen of three-quarters of an inch mesh.” What pea coal is, in this agreement, was not left to guess, construction of language, or evidence, either at the time of the execution of the agreement or now. The court should not against protest now make a new contract for the parties. Pea, by the terms of the agreement, is. defined to be “ that coal (all the coal) which passes with -the ditt ’’-through a certain, mesh. Defendant does not deny, indeed it admits, the coal sued for was such coal, that it was mined, removed, sold or used by it and paid for, but seeks to avoid judgment by a statement that the coal mined was not pea. With equal force it could say that any other definition contained in the lease is not what it specifically states it is, and thus, by parol evidence, raise a question to be construed and decided. This, in our opinion, cannot be done in an affidavit of defense, and, therefore, the rule for judgment, notwithstanding the affidavit of defense, is made absolute.
    May 18, 1908:

      Error assigned was the order of the court.

      F. W. Wheaton, of Wheaton, Darlim,g <& Woodward, for appellant,
    cited : Wright v. Coal Co., 182 Pa. 514; Hoyt v. Coal Co., 212 Pa. 205.

      George R. Bedford and J. Q. Greveling, with them D. L. Rhone, for appellees,
    cited: Lance v. Coal Co., 163 Pa. 84; Wright v. Coal Co., 182 Pa. 514 ; Doster v. Zinc Co., 140 Pa. 147; Edelman v. Yeakel, 27 Pa. 26.
   Pee Cuexam,

The judgment is affirmed by a majority of the court on the opinion of the court below.