author: Mr. Justice Elkin,

text:
    Miller v. Wiggins, Appellant.

      Contracts — Building contracts — Measurement of walls — Trade meaning of words — Parol testimony — Evidence.
    1. Where the terms used in a contract are so doubtful and uncertain as to admit of different constructions, parol testimony may be admitted to explain their meaning.
    2. Where a contract for the building of a wall provides that “the contractors agree to pay the subcontractors the sum of $2.35 per perch of 24| cubic feet measured in wall,” and nothing is said as to the method of measurement, nor how the wall is to be measured, nor in case of dispute how the controversy shall be determined, it is proper to admit parol testimony to explain the trade meaning of the words “measured in wall.”

      Contracts — Custom—Local custom — Not binding on nonresident— 'Usage.

    3. Usage is a reasonable and lawful public custom concerning transactions of the same nature as those which are to be affected thereby, existing at the place where the obligation is to be performed, and either known to the parties, or so well established, general and uniform, that they are presumed to have acted with reference to the usage.
    4. Usage in a particular locality is something which exists in general repute in the trade affected thereby in that community, and all residents are supposed to know of its existence and are presumed to act and contract with reference to it.
    5. There is no presumption that a local custom is known to a nonresident and to make such usage conclusively binding upon him there must be proof of actual knowledge, and it is therefore error to instruct a jury in effect that if they find the local custom to exist the parties are conclusively bound thereby in a case where the party sought to be held to such knowledge is a nonresident of the locality.

      Argued Feb. 8, 1910.
    Appeal, No. 270,
    Jan. T., 1909, by. defendants, from judgment of C. P. Chester Co., Aug. T., 1909, No. 85, on verdict for plaintiff in case of Irwin W. Miller v. John R. Wiggins, W. H. Walls, and F. K. Worley, trading as John R. Wiggins & Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit on a building contract. Before Butler, J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,980.47. Defendants appealed.

      Error assigned was in affirming plaintiff’s first point, as follows:
    If the jury believe from the evidence that a custom existed among masons, builders, contractors and architects, where the contract was signed and the work done, by which all masonry, unless otherwise provided by special contract, was measured and paid for by what is known as “ masons’ measurement,” which consisted in measuring all openings in the walls as if built up, and the corners and angles twice, that this custom had existed for a period of more than twenty years prior to the date this contract was entered into, that the same was certain, uniform and notorious, and so notorious as to affect the defendants with a knowledge of its existence, then the jury will allow the plaintiff the number of perches so erected by him in accordance with such “ masons’ measurement.” Answer: This point we affirm.

      Alfred P. Reid, for appellants.
    — To bind a party by local usage, or the usage of a particular trade or profession, he must be shown to have had knowledge or notice of its existence: Walls v. Bailey, 49 N. Y. 464; Bradley v. Wheeler, 44 N. Y. 495; Higgins v. Moore, 34 N. Y. 417; Esterly v. Cole, 3 Comstock, 502.

      T. Walter Gilkyson, with him H. H. Gilkyson, for appellee.—
    It is well settled that evidence of custom and usage is admissible to explain the meaning of a written instrument: Pittsburg v. O’Neill, 1 Pa. 342; Welsh v. Huckestein, 152 Pa. 27; First National Bank v. Fisk, 133 Pa. 241; McMasters v. Penna. R. R. Co., 69 Pa. 374; Bremerman v. Hayes, 9 Pa. Superior Ct. 8; Silliman v. Whitmer & Sons, 11 Pa. Superior Ct. 243; Prigg v. Preston, 28 Pa. Superior Ct. 272.
   Opinion by

Mr. Justice Elkin,

March 28, 1910:

This suit grows out of a dispute as to the proper method of determining the number of perches of masonry in a wall built by a subcontractor under a contract in writing with the contractor. The contract provides that “the contractors agree to pay the subcontractor the sum of two dollars and thirty-five cents (12.35) per perch of 24f cubic feet measured in wall.” The appellants contend that the number of perches is to be determined by ascertaining the actual amount of solid masonry in the wall, while the contention of appellee is that what is known as “masons’ measurement,” which means that openings are to be included and that corners shall be measured twice, is the proper rule for determining how many perches shall be paid for under the contract. If the contract in terms provided a definite method of measurement no controversy could arise because the contracting parties would be bound by their own covenants. It must therefore be decided whether the contract in question does provide a definite method of measurement so plain and unambiguous as to make its construction one of law for the court, or whether the terms used are so doubtful and uncertain as to admit of different constructions, in which event parol testimony may be admitted to explain their meaning. The only words in the contract relating to the method of measurement are those contained in the phrase “measured in wall.” Nothing is said as to the method of measurement, nor how the wall is to be measured, nor in case of dispute how the controversy shall be determined. We think the words used in the contract are not so plain in their meaning as that only one conclusion can be drawn as to the method of measurement and that it was proper to admit parol testimony to explain the trade meaning of the words used. This conclusion is not one of first impressions but rests upon decided cases in our own state and the great weight of authority elsewhere. The admission of parol testimony to explain the trade meaning of words of doubtful import was sustained in the following cases, and scores of other cases might be cited to the same effect, but these are sufficient to illustrate the principle involved. In Soutier v. Kellerman, 18 Mo. 509, what was meant by “a thousand shingles” in a building contract; in Eldridge v. McDermott, 178 Mass. 256, the meaning of “a bag of oats ” in a contract involving the sale of grain; in Baer v. Glaser, 90 Mo. App. 289, the meaning of the word “pound,” as used in the silk trade; in Callahan v. Stanley, 57 Cal. 476, what was meant by “stubble” used in a farm contract; in Packard v. Van Schoick, 58 Ill. 79, parol testimony was admitted to explain the meaning of the words, “wall measure,” used in a contract somewhat similar to the one involved in the present case; in Walls v. Bailey, 49 N. Y. 464, under a contract to do plastering at a certain sum per square foot parol testimony was admitted to explain the method of measurement under a local custom; and in our own state it has been held competent to show by the testimony of persons in the trade what was meant by the expression “measured in the wall,” and how such measurement is made: Welsh v. Huckestein, 152 Pa. 27. Viewed in the light of these authorities there is no escape from the conclusion that parol testimony is admissible in explanation of the method of measurement to be adopted in determining how many perches of masonry “measured in wall” shall be paid for under the present contract. It does not follow, however, that the case as tried in the court below is free from error. The first assignment raises the question whether the affirmance of the first point submitted on behalf of the plaintiff at the trial was error. This question has been very carefully considered here with the result that we feel impelled not only by the great weight of authority but by the reason of the rule itself to sustain the assignment and reverse the judgment with a venire. The point submitted in substance asked the court to instruct the jury that if they believed from the evidence that there was a local custom at the place the contract was signed, by which all masonry was to be measured by what is known'as “masons’ measurement,” and that this custom had existed for a period of more than twenty years at the time the contract was entered into and that it was so certain, uniform and notorious as to affect the defendants with knowledge of its existence, the plaintiff would under such circumstances be entitled to recover for the number of perches determined upon the basis of that local custom, which was “masons’ measurement.” If both of the contracting parties had been residents of the community in which the local usage or custom prevailed the point would have correctly stated the rule of law, and its affirmance by the court would have been a proper instruction to the jury. Usage has been defined to be such a reasonable and lawful public custom concerning transactions of the same nature as those which are to be affected thereby, existing at the place where the obligation is to be performed, and either known to the parties, or so well established, general and uniform, that they are presumed to have acted with reference to the usage. Usage in a particular locality is something which exists in general repute in the trade affected thereby in that community, and all residents are supposed to know of its existence and are presumed to act and contract with reference to it. The presumption therefore arises that when two or more residents of a particular locality enter into a contract relating to a particular trade or business, in the absence of an express agreement otherwise providing, intend that the local usage shall be considered as the basis of their covenants and part of their contractual obligations. In such a case when the proof of the usage or .custom is sufficient to meet the requirements as to time, certainty, uniformity and notoriety, the contracting parties, if residents, are bound thereby, and it is the duty of the court to so instruct the jury. This rule does not apply to nonresidents who have no knowledge of the local custom. As to nonresidents it has been held in almost every jurisdiction in which the question has been .considered, that there can be no presumption that a stranger in a community is cognizant of a usage prevailing in a particular trade in that particular locality, and hence no presumption that in making a contract he covenanted upon the basis of a local usage of which he did not have notice or knowledge. To make a local usage conclusively binding upon a nonresident it is necessary to show that it was known to him at the time the contract was entered into: 29 Am. & Eng. Enc. of Law (2d ed.), 400; Strong v. King, 35 Ill. 9; Marshall v. Perry, 67 Me. 78; Sawtelle v. Drew, 122 Mass. 228; Hermann v. Fire Ins. Co., 100 N. Y. 411; Insurance Co. v. Harmer, 2 Ohio St. 452; Gilmer v. Young, 122 No. Car. 806.

In the case at bar the affirmance of the point submitted was a binding instruction to the jury to find for the plaintiff on the basis of “masons’ measurement,” if they found the local custom was certain, uniform and notorious and had existed for a period of more than twenty years. Nonresidents are not presumed to have knowledge of a local custom because it had existed for more than twenty years. There is no presumption that a local custom is known to a nonresident, and to make such usage conclusively binding upon him there must be proof of actual knowledge. The error was in the unqualified affirmance of the first point, which could only mean that if the jury found the local custom to exist the appellants were conclusively bound thereby. The three defendants, all nonresidents, testified that they had no knowledge of the local custom, and there was no positive testimony to the contrary. Under these circumstances there is no presumption that these nonresidents contracted with reference to a local custom of which they had no knowledge. It does not follow, however, that the appellants can put their own construction upon the contract or that the appellee is absolutely precluded from recovering upon the basis of masons’ measurement. We simply hold that the local custom was not conclusively binding upon the contracting parties under the circumstances of the present case, and that it was error to instruct the jury in effect that if they found the local custom to exist the parties were conclusively bound thereby. With or without regard to any custom or usage it must be determined what the parties meant when they wrote into their contract the provision “measured in wall,” and how that measurement is to be made.

While custom, as a general rule, may not be introduced for the purpose of enlarging or abridging the terms of a statute or of a contract, it may be heard to interpret either? Helme v. Life Insurance Co., 61 Pa. 107. Even in a case where the evidence may not be sufficient to establish a custom, it is still for the jury to determine how much work was done by the measurements submitted in order to return a verdict for the amount due under the contract: McCullough v. Ashbridge, 155 Pa. 166. In this connection it is proper to introduce in evidence the written bid submitted by appellee as the foundation of the contract and in explanation of any ambiguous terms employed in the final agreement. This bid specified masons’ measurement and provided that a perch shall consist of twenty-four and three-quarters cubic feet, all of which the testimony shows to be in accordance with that method of measurement. Again, it appears from the testimony that when solid masonry only is measured twenty-two cubic feet make a perch. These are important items of evidence to be considered by the jury in determining what method the parties intended to adopt in their contract. Parol evidence of custom or of persons familiar with the trade may be introduced in explanation of the trade meaning of any ambiguous terms used in the contract, or to show what is'meant by masons’ measurement in the event the jury shall determine that this method of measurement was intended by the contracting parties. The written bid submitted by appellee was sufficient to put appellants upon inquiry as to what was meant by masons’ measurement and may properly be considered by the jury in determining whether the parties contracted upon this basis, and if so, how many perches are in the wall thus measured. As we view the case it is competent for both parties to introduce parol testimony in support of their respective contentions, and it will then be for the jury to determine which method of measurement shall prevail and what sum the appellee is entitled to recover.

The first assignment of error is sustained, judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Me. Justice Mestrezat,

license: Public Domain

text:
    Dempsey, Appellant, v. Buck Run Coal Company.

      Mines and mining — Anthracite coal mine — Negligence—Master and servant — Explosion—Ventilation—Top headings — il/roe foreman — Act of June 2, 1891, P. L. 176 — Constitutional law.

    1. A mine owner who has placed a competent mine foreman in charge and control of the mine whose duties required him to perform the service and protect the workmen against insufficient or inadequate ventilation, has complied with the statutory injunction that he shall use precaution for the safety of the workmen, and is not responsible for injuries to a workman resulting from the neglect or failure of the mine foreman to properly conduct and circulate the air currents to and along the face of the working places throughout the mine.
    2. In an action against a mine owner to recover damages for injuries sustained by an explosion of gas in an anthracite coal mine, charging negligence in not providing the necessary proper material for bratticing to conduct air currents and in not driving a top-heading, the absence of which interfered with the proper circulation of air in the place where the plaintiff was working, binding instructions for defendant are proper where it is conceded that the defendant had employed a competent mine foreman, who, at the time of the accident, was in full charge, and where there is no evidence that the owner had not maintained an adequate supply of pure air for the mine or had failed to furnish any material required by law contributing to the accident.
    3. If to the owner’s knowledge the mine foreman or any other employee of a mine is neglecting the performance of his duties or the mine is in a condition which endangers the health or safety of the workmen, it is the duty of the owner to act promptly and have the dangers to the safety of the men removed, but where the owner is not in default, he cannot be made liable for the neglect of duty imposed by the statute upon another person.
    4. In so far as sec. 8, of the Act of June 2, 1891, P. L. 176, imposes liability on the mine owner for the failure of the mine foreman to comply with the provisions of the act which compels his employment and defines his duties, it is unconstitutional and void.
    Argued Feb. 14, 1910.
    Appeal, No. 122,
    Jan. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1906, No. 288, on verdict for Buck Run Coal Company by direction of the court in case of Edward Dempsey v. The Buck Run Coal Company, Patrick Devers et al.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bechtel, J.
    The opinion of the Supreme Court states the facts.
    At the trial the plaintiff presented the following points:
    1. The law requiring the operator to drive headings no more than sixty feet from the face of each chamber or breast, and to provide and maintain' a current of air along the face of all working places, and to provide all material for proper brattices, and to keep all parts of the mine safe for the protection of life, limb and health of the workman, and the testimony showing that there was no heading driven to the face of the breast for more than sixty feet and no air way open in breast No. 4, where this explosion occurred, for a distance of from 114 to 132 feet, and that no planks were furnished by the operator for brattices, known as tail brattices, to drive the air to said breast or skipping, the question of negligence on the part of the operator, as well as negligence of the mine boss, must be left to the jury. And if the jury believe the explosion was occasioned by reason of such neglect, the verdict must be for plaintiff against both defendants. Answer: In answer to this, we say to you that we have concluded to leave the question of the negligence of the defendant, Patrick Devers, under all the evidence in this case, to you, saying to you that if you find that the explosion which injured the plaintiff was the result of negligence on the part of defendant, solely and entirely, and that plaintiff did not contribute to same in any degree by contributory negligence, then your verdict should be for plaintiff. We do not say that the evidence in this case shows the state of facts claimed in this point or that it does not. We leave it to you to ascertain what it does establish. [1]
    2. The official reports of the mine inspectors and the testimony showing this to be a gaseous mine; the question as to whether the operator, as well as the boss or foreman, failed to comply with the law, or whether both or either were negligent, must be left to the jury. And if the jury believe the explosion was occasioned by reason of such neglect, the verdict must be for plaintiff against either or both defendants, as they may find. Answer: We refer you, for the answer to that, to what we have just read in connection with the answer to the first point, believing that that will sufficiently answer both of these points. [2]
    3. That the question as to whether the localities or points at which all headings and proper air courses should have been provided were accessible at the time they should have been driven, either before or after the coal was drawn from breast No. 4, should be left to the jury. And if the jury believe the explosion was occasioned by reason of such neglect, the verdict must be for the plaintiff against both defendants. Answer: We affirm this point as to the defendant, P. H. Devers. You will bear in mind, as to the other defendant, we have directed you to find a verdict. [3]
    Defendant presented this point:
    2. That under all the evidence in the case the verdict of the jury must be in favor of the defendant, the Buck Run Coal Company. Answer: That point we affirm also. [8]
    The court charged in part as follows:
    We direct you to find a verdict in favor of the Buck Run Coal Company for the reason that the uncontradicted evidence shows that it employed a mine foreman in the person of Patrick Devers, who had a certificate as mine foreman for twenty-two years, under the Act of June 30, 1885, P. L. 205, art. 12, rule 1, which reads, “And the owner or operator or superintendent of a mine or colliery shall place the underground workings thereof and all that is related to the same under the charge and daily supervision of a competent person, who shall be called the mine foreman.” [9]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-3, 8, 9) above instructions, quoting them.

      Geo. F. Brumm and James B. Reilly, for appellant.
    ' B. W. Camming, Jr., and John F. Whalen, for appellee, cited:
    Golden v. Mt. Jessup Coal Co., 225 Pa. 164.
   Opinion by

Me. Justice Mestrezat,

March 28, 1910:

This is an action to recover damages for injuries sustained by an explosion of gas in an anthracite coal mine. The action was brought against the Buck Run Coal Company, Patrick Devers, its mine foreman, and certain other parties as to whom a nonsuit was entered. The court directed a verdict for the defendant company, and submitted the case as to Patrick Devers, the mine foreman, and the jury returned a verdict against him for 11,400. ' He took an appeal to the Superior Court, and the plaintiff has taken this appeal, alleging that the court erred in directing a verdict in favor of the defendant company, and in entering a nonsuit as to one of the other defendants.

In his statement, the plaintiff avers that he, “while working as such employee as a miner, was injured by an explosion of gas or black damp which had accumulated in said mine by reason of improper appliances and by failure of said defendants to place proper tail brattices to prevent gas from entering the place at which said Dempsey was working .... by reason of want of proper ventilation and failure to drive proper headings and air courses, an explosion occurred by which said Dempsey, plaintiff, was severely burned and injured as aforesaid, (and) that the said defendants undertook to keep the said breast, gangways and chutes clear of dangerous gases, Nevertheless the said defendant company .... carelessly and negligently and in violation of the act of assembly of Pennsylvania operated said mine.”

It appears from the evidence that breast or chamber No. 4 in the defendant company’s mine had been abandoned, and that at the time of the accident the partition pillars which separated it from breast No. 5 were being “skipped,” or coal was being cut from them. While the plaintiff and another miner were thus engaged, there was an explosion of gas in breast No. 4 by which they were severely injured. It is claimed that a fall of top-rock farther up in the breast had forced down a pocket of gas allowed to accumulate by reason of there being no top-heading or air course above the place in which the plaintiff was working, and the gas coming in contact with the flame from plaintiff’s open lamp resulted in an explosion. It is contended that the absence of this top-heading prevented air from circulating in that part of the mine, and resulted in an accumulation of gas which exploded and caused the plaintiff’s injuries. The plaintiff claims that the failure to drive this heading was negligence which is imputable to the defendant company. It is also claimed by the plaintiff that the defendant company neglected to provide the necessary proper material for bratticing and emergency supplies for the “medical room.” These are the acts of negligence on which the plaintiff relies to recover against the defendant company.

If the defendant company failed or omitted to perform any duty enjoined upon it resulting in injury to the plaintiff, it is liable for the damages he has sustained. Before he can recover, however, it is incumbent upon him to show such failure or omission of duty on the part of the defendant. If his injuries are attributable to the negligence of another party, no responsibility rests upon the defendant company.

Recognizing the danger to the health and lives of persons employed in coal mines, the legislature of this state has attempted by statute to protect such persons by regulating and controlling the operations of the mine. With this purpose in view, laws have been enacted providing for the health and safety of those who are engaged in operating both the anthracite and bituminous coal mines of the state. The duties and responsibilities, not only of the owner, operator and superintendent, but also of the workmen who are engaged in the mine are defined and regulated by the several statutes on the subject. A violation of any statutory duty imposes liability on the offender for the resulting consequences.

In the case in hand, the plaintiff contends that he was injured by the failure to properly ventilate the mine, or rather that part of it, in which he was engaged at the time of the accident. We fail, however, to see, admitting his contention to be correct, that the evidence discloses any neglect of a statutory or other duty on the part of the defendant company which resulted in his injuries. The Act of June 2, 1891, P. L. 176, 3 Purd. (13th ed.) 2546, and its supplements provide a complete system of ventilation applicable to all anthracite coal mines in the state. ■ Section 1 of art. 10 requires the operator or superintendent to provide and maintain a constant and adequate supply of pure air for the mine. Other sections of the article provide specifically how the mine shall be ventilated, the manner of permanently closing the crosscuts between the main inlet and outlet of the air passages, and the distance from the face of the breast within which headings shall be driven. It is contended by the plaintiff that a compliance with these sections of the statute was a personal, absolute duty imposed upon the defendant company, and for a neglect of such duty the defendant is responsible. It is further maintained by the plaintiff that rule 1 of art. 12 of this act, requiring the owner, operator or superintendent to use every precaution to insure the safety of the workmen in all cases, imposes an absolute duty upon him to see that the sections of the act above referred to are complied with. We have held that in so far as sec. 8 of the act of June 2, 1891, imposes liability on the mine owner for the failure of the mine foreman to comply with the provisions of the act which compels his employment and defines his duties, it is unconstitutional and void: Durkin v. Kingston Coal Co., 171 Pa. 193.

Rule 1 of art. 12 of the act of 1891, provides: “The owner, operator or superintendent of a mine or colliery shall use every precaution to insure the safety of the workmen in all cases, whether provided for in this act or not, and he shall place the underground workings thereof, and all that is related to the same, under the charge and daily supervision of a competent person who shall be called ' mine foreman.'" Rule 3 provides: “The mine foreman shall have charge of all matters pertaining to ventilation, and the speed of the ventilators shall be particularly under his charge and direction; and any superintendent who shall cause the mine foreman to disregard the provisions of this act shall be amenable in the same manner as the mine foreman.” Section 6 of art. 8 provides that no mine shall be operated for a longer period than thirty days without the supervision of a mine foreman.

It is conceded that the defendant company had employed a competent certified mine foreman, Patrick Devers, and that, at the time of the accident, he was in charge of the underground workings of the mine. There is no evidence in the case that the owner or operator had not provided and maintained an adequate supply of pure air for the mine. Nor does the evidence disclose that the owner, the defendant company, had in any manner failed to perform duties in operating the mine imposed on it by the statute, unless the company should have driven the top-heading in order to permit the air currents to circulate in the breast above the place where the plaintiff was injured. The learned court below was correct in holding that there was no evidence of the failure of the defendant to furnish any material required by law which contributed to the accident. Nor did the testimony show that defendant Neal was responsible for any defective ventilation system.

As will be observed, the statute requires the owner to place the underground workings of the mine and all that is related to the same in the charge and daily supervision of a mine foreman. It also especially commits to the foreman’s charge all matters pertaining to the ventilation of the mine, and prohibits the superintendent from interfering with him in the performance of his duties. In other words, by command of the statute, the interior of the mine is taken out of the possession and control of the owner and placed in charge of a certified foreman, with whom the owner’s superintendent is forbidden to interfere, and who has power to compel compliance with his directions so far as they relate to the safety of the employees engaged in the mine. We are, therefore, of opinion that, as ventilating the defendant’s mine was under the control and subject to the direction of the mine foreman, it was his duty to drive such headings as were necessary to ventilate the mine. He is, by statute, expressly given “charge of all matters pertaining to ventilation” of the mine, and it logically follows that it was his, and not the owner’s, duty to determine the necessity for another heading in the breast and to drive the heading if good ventilation of that part of the mine required it. Having placed a competent mine foreman in charge and control of the mine whose duties required him to perform the service and protect the workmen against insufficient or inadequate ventilation, we think the owner has complied with the statutory injunction that he shall use precaution for the safety of the workmen, and is not responsible for the plaintiff’s injuries if they resulted from the neglect or failure of the foreman to properly conduct and circulate the air currents to and along the face of the working places throughout the mine. As said in Waddell v. Simoson, 112 Pa. 567: “The owner and operator of the mine having complied strictly with the act of assembly in providing a practical and skillful inside overseer, or mine foreman, and thereby fulfilled the duty imposed upon him by law, it is not for this or any other court to charge them with an additional obligation.”

The owner or operator having obeyed the command of the statute by providing a constant and adequate supply of pure air for the mine, it was the duty of the mine foreman to see that it was properly circulated through the mine. Anything and everything that affects the health and safety of the workmen while engaged at their work is in the keeping and charge of the mine foreman. He is especially charged with ventilating the mine, and whatever is necessary to be done to accomplish the purpose is a statutory duty imposed upon him. Having an adequate supply of air at his command, it was the duty of the mine foreman to direct the manner in which it should be conducted to the places at which the plaintiff and the other men were at work. Whether the air current should have been conducted to breast No. 4 by means of brattices, and whether a top-heading should have been driven to breast No. 5, and a heading at any other location in the mine should have been driven for the purpose of ventilating breast No. 4, were questions to be determined by the mine foreman. The act requires him to be a competent person, and presumably he is more competent to determine the necessity for, and the proper maimer of, introducing air into the different localities in the mine than the owner himself. It is upon this theory and for this reason that the statute gives him charge of the ventilation of the mine with authority to compel obedience to his orders, and prohibits the superintendent from interfering with him in the discharge of his duties. The owner would subject himself to liability for injuries resulting to an employee if he directed the manner of circulating the air currents through the mine against the judgment of the mine foreman. The statute relieves him of responsibility in consideration that he places a competent person in charge of the mine.

While the owner is not responsible for the neglect of the duties imposed by statute upon the mine foreman, the former must nevertheless “ use every precaution to insure the safety of the workmen.” If any matter injuriously affecting the health or safety of the men is brought to his attention it is his duty to take the proper steps to correct it. If to the owner’s knowledge the mine foreman or any other employee is neglecting the performance of his duties or the mine is in a condition which endangers the health or safety of the workmen, it is the duty of the owner to act promptly and have the dangers to the safety of the men removed; but where the owner is not in default, he cannot be made liable for the neglect of duty imposed by the statute upon another person. He necessarily must operate his mine largely through others, and when he complies with the provisions of the statute enacted to protect his workmen, by employing competent assistants, he has done all that is required of him and ought not to be subjected to liabilities for which he is not responsible.

We find no reversible error in this record and, therefore, the judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Althouse, Appellant, v. Cobaugh Colliery Company.

      Corporations — Officers—President and directors — Compensátion for services rendered — Necessity for express contract.

    1. A corporate officer or director cannot recover compensation for services rendered the corporation unless there was an express contract of employment before the services were performed.
    2. The president of a corporation cannot recover on the basis of a quantum meruit for services rendered the corporation of which he is an officer, except as an express contract can be shown, and this, is so although the services for which recovery is sought are professional and not such as appertain to the office of president under the by-laws of the corporation.
    2. This rule applies to the president of a coal company, a mining and civil engineer, who claims to recover from the company compensation for services in surveying, procuring rights of way, building a railroad and bridge, and putting up tipples.
    Argued Feb. 14, 1910.
    Appeal, No. 240,
    January T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1905, No. 154, on verdict for defendant in case of H. W. Alt-house v. Cobaugh Colliery Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed. '

    Assumpsit for services rendered. Before Shay, P. J.
    The plaintiff, a mining and civil engineer, had performed services for the benefit of a mining corporation of which he was president in surveying, procuring rights of way, building a railroad and bridge, putting up tipples, etc.
    At the trial the court charged in part as follows:
    [The defendant contends that he (the plaintiff) is only entitled to compensation for his services in that respect, when they are outside of his duty as an officer, where there has been a prior agreement or directipn by the corporation for him to proceed with that work, and that is the view we take of the law in Pennsylvania.] [2]

      [The offer here was to prove that this plaintiff had done a large amount of work for the benefit of this corporation in surveying, procuring rights of way, in building a railroad and a bridge, and putting up tipples. But there was no attempt to show that he had ever been authorized previously to the work being done by this association, either by resolution, agreement or contract, or in any way, or that there was any supervision over it or anything of the kind. The offer merely purported to show that he did the work, and that it Was outside of his duties as president; that it was beneficial to the company and that they had acquiesced in it. We do not think that comes up to the rule of law as laid down in Pennsylvania.] [3]
    [That is what we say here, that a party must be properly employed; then if his compensation is not agreed upon, if there is nothing said as to how much he shall be paid, it becomes a question for the jury as to whether he is entitled to be paid what he claims for his services, or how much he is entitled to. But he must first show that he has been properly employed to perform those services.] [4]
    [That is, where a man is president, or secretary, or other officer of the corporation, and he is engaged to do services outside of his duties as such officer, it is no hardship for the law to compel him to have a resolution passed fixing his employment or compensation before he enters upon the duties so as to enable him to recover. If he neglects, that is his fault, and not the fault of the corporation or anybody else.] [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (2-5) above instructions, quoting them.

      R. H. Koch, with him Wm. M. Faussett, for appellant.
    — If a director is properly employed to perform services which do not pertain to his office as director, he is entitled to such compensation as has been agreed upon or as the services are reasonably worth: Fitzgerald & Mallory Construction Co. v. Fitzgerald, 137 U. S. 98 (11 Sup. Ct. Repr. 36); Corinne Mill, etc., Co. v. Toponee, 152 U. S. 405 (14 Sup. Ct. Repr. 632); Ruby Chief Mining & Milling Co. v. Prentice, 52 Pac. Repr. 210; Bassett v. Fairchild, 64 Pac. Repr, 1082; Rogers v. Ry. Co., 22 Minn., 25; Henry v. R. R. Co., 27 Vt. 435; Sawyer v. Bank, 88 Mass. 207; Gumaer v. Cripple Creek Tunnel Transportation & Mining Co., 90 Pac. Repr. 81; Taussig v. Ry. Co., 65 S. W. Repr. 969.

      W. L. Kramer and James B. Reilly, for appellee.
   Opinion by

Mr. Justice Stewart,

March 28, 1910:.

That a president or director of a corporation cannot, recover on the basis of a quantum meruit for services rendered the corporation of which he is an officer, except as an express contract can be shown, may be regarded as settled law in-this-state. That a different rule obtains in some jurisdictions is nothing to the.point; our own policy has been too long, established to be questioned, and the general and continued acquiescence therein is its own sufficient vindication. “Corporate officers,” says Woodward, C. J., in Kilpatrick v. Penrose Ferry Bridge Company, 49 Pa. 118, “have ample opportunities to adjust and fix their compensation before they render their services, and no great mischief is likely to result from compelling them to do so, but if, on the other hand, actions are to be maintained by corporate officers for services, which, however faithful and valuable, were not rendered on the foot of an express contract^ there would be no limitation to corporate liabilities, and stockholders would be devoured by officers.” We have here a.clear statement of the rule and the policy on which it rests. True, in that case, as in Martindale v. Wilson-Cass Company, 134 Pa. 348, the action was to recover for official services,, that is to say, for services rendered by the officer within the scope of official duty, and it is sought to distinguish the present case from these, by the fact that, hqre the services for which recovery was sought were professional, and not such- as appertained to the office of president, under the by-laws of the corporation.. The distinction is apparent, but it marks no substantial difference with respect to rule or policy. There is quite as much reason for requiring a corporate officer to show an express contract for compensation as a condition of recovery in one case as in the other. This feature of the case, however, calls for no argument, in view of the recent adjudication in Brophy v. American Brewing Company, 211 Pa. 596. There the action was brought by one who had been a director, to recover for services rendered as manager and superintendent of the company, services quite as much outside of the proper duties of a director as those this plaintiff rendered were outside the prescribed duties of the president. He failed to show that they were rendered under an express contract. Every consideration relied upon in the present case to support the plaintiff’s claim was urged there — the services rendered were valuable; the corporation availed itself of them; and they were not voluntarily rendered without expectation of being paid for. The court below held that unless the services were rendered pursuant to a contract that they were to be paid for, there could be no recovery.. On appeal to this court the judgment was affirmed in a per curiam opinion in which the law is thus explicitly declared: “The plaintiff during the whole period for which he claimed compensation for services was an acting director and a member of the executive committee of the board of directors. He came therefore within the reason of the settled rule that a corporate officer cannot recover compensation for services rendered the corporation unless there was an express contract of employment before the services were performed. Whether the plaintiff had been employed as superintendent or manager, with all other questions of fact, was fairly submitted to the jury. The instruction that there could be no recovery on the basis of a quantum meruit for services rendered was right.” This is conclusive of the present controversy.

The judgment is affirmed.


text:
    Edwards, Appellant, v. Meyers.

      Practice — Charge—Character of testimony — Facts not in issue— Inferences contrary to facts — Sales—Real estate — Principal and agent.

    1. When testimony is before the court, it is the court’s duty to see that it has at least a natural and reasonable tendency to sustain the allegations in support of which it is introduced, that it is of such a character as to warrant an inference of the fact to be proved, and amounts to something more than a mere basis for conjecture or vague speculation. If there is no sufficient evidence to justify an inference of .the disputed fact, the court has the right and it is its duty to withhold it from the jury.
    2. In an action to recover on a promissory note where the real issue reduces itself to the question whether the note was given unconditionally for services already rendered in a pending sale of coal lands or only as security for payment if the sale was consummated, it is reversible error for the'court to admit a question foreign to the issue by instructing the jury that if the plaintiff had acted as agent for both parties he could not recover, where the only evidence that he had so acted rests upon the naked assertion of the defendant and his version of an alleged remark made by the plaintiff, which remark was expressly denied by the plaintiff, and, even if made, was capable of various other interpretations and only by surmise justified the inference that plaintiff was acting in a dual capacity as agent.
    3. It is error to instruct the jury that they can consider the improbability of a man of' ordinary intelligence doing a certain thing, where, on the defendant’s own testimony, he admittedly was willing to do what the instructions assume a man of ordinary business capacity would not do.

      Practice, C. P. — Evidence—Admissibility of records in other suits— Harmless error.

      4. The admission of the record of another suit, although clearly unnecessary because the fact intended to be proved by it was not contradicted, is not ground for reversal where its admission could have done no harm to the party complaining.
    Argued Feb. 15, 1910.
    Appeal, No. 295,
    January T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., Sept. T., 1907, No. 86, on verdict for defendant in case of Thomas R. Edwards v. Henry Meyers.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Assumpsit on a promissory note. Before Shay, P. J.
    The facts appear in the opinion of the Supreme Court.
    At the trial defendant presented the following points:
    1. If the jury find that Edwards, the plaintiff, was acting as the agent for the Catawissa Coal Company, as well as for Meyers, and that he did not disclose this fact to Meyers until after the agreement of February 22, 1906, was executed at Williamsport, the verdict must be for the defendant, Meyers. Answer: We affirm this point, and call your attention to the case of Marshall v. Reed, 32 Pa. Superior Ct. 60, where it says: “Where one acts in a dual capacity as agent, or servant, for two separate employers, nothing less than clear proof of consent of both employers, not merely to double service, but to double compensation, will suffice to validate an expense contract with the second employer.” That is, where a man acts for both parties he must have the consent of both parties to his acting for them, and to his compensation from both parties, before he can recover; the case arises on the principle laid down in Scripture, that no man can serve two masters; and it is against public policy to permit a man to serve in the two capacities unless it is expressly agreed between the parties themselves. To the same effect is another case, Evans v. Rockett, 32 Pa. Superior Ct. 365; the case in the Supreme Court of the state, Wilkinson v. McCullough, 196 Pa. 205, bears out the same idea. [1]
    2. That the jury has the right to consider, in arriving at a verdict in this case and in reconciling the conflict of testimony between the plaintiff and the defendant, the improbability that any person of ordinary business intelligence would agree to pay 15,000 to his agent, for the purchase of a $115,000 tract of land before he had seen or examined the land, or had the title to it examined, or had met the owners, or had made a contract with the owners for its purchase; and regardless of whether the owners had agreed to the terms proposed, or, if they had agreed, whether they were able to comply with them or not. Answer: If you find that it is impossible, then we say that the jury has a right to consider it in arriving at the verdict. That is a question, of course, for the jury. [2]

      3. That the general rule is that a broker or agent who is compensated by the payment of a commission for his services in the purchase of lands undertakes to furnish a vendor or seller and is bound to act in good faith in presenting a person as such; and when one is presented, the principal is not bound to accept him or to pay commissions — unless the person presented is ready and able to perform the contract on his part according to the terms proposed. Answer: In answer to that point we will read what we previously read to you: “It is always incumbent upon a broker seeking to recover a commission, to prove further that a sale was made to the party whom he procured as a purchaser, or that the purchaser was able and willing to buy, and the failure to make an actual sale was through no fault of the broker or .his customer.” That, we say, is the general rule, but it may be varied by a contract between the parties themselves, as we have explained to you in our general charge. [3]
    5. The judgment of the Supreme Court of Pennsylvania, in the case of Henry Meyers v. The Catawissa Coal Company, 219 Pa. 1, is conclusive upon Edwards, the plaintiff in this case, that he did not furnish to Meyers a vendor or seller able to carry out the contract entered into at Williamsport on February 22, 1906. Answer: We will say to you that the case shows that the sale was not consummated, by reason of a defect in the title, and we refer to our general charge as. to what we said about the contract between these parties and what they-believed was the contract. [4] ■'
    Verdict and judgment for defendant. Plaintiff, appealed.

      Errors assigned among others were (1-4) above instructions, and (6) the admission in evidence of the record of the suit of Meyers v. Catawissa Coal Company.

      John F. Whalen, for appellant.

      C. E. Berger, for appellee.
   Opinion by

Mr. Justice Stewart,

March 28, 1910:

This was an action on a promissory note for $4,000, drawn by defendant and payable “on demand and after date” to the order of the plaintiff, dated February 13, 1906. The defense set up was that plaintiff had been employed by defendant to act for him and others associated with him, in the purchase of a certain tract of coal land from the Catawissa Coal Company; that it was understood and agreed that plaintiff was to receive as compensation for his services the sum of $5,000 if the negotiations resulted in a purchase, upon the completion of the purchase; that plaintiff demanded some security that his compensation would be paid him upon completion of the purchase, and that a note of defendant for $5,000 was accordingly given him of like tenor and effect as that sued on, with the understanding that it was given as security merely, and that defendant was not to be called to pay it except in case his associates declined to pay plaintiff for his services on completion of the sale; that subsequently plaintiff represented that he had concluded an agreement with the coal company for the purchase of the land at the price of $115,000; that defendant thereupon paid over to plaintiff $1,000 to be paid to the coal company to bind the bargain, and that thereupon plaintiff surrendered the $5,000 note and accepted in substitution therefor the $4,000 note in suit; that notwithstanding the defendant subsequently entered into a written agreement with the coal company for the purchase of the land at the price named, the transaction was never completed and the purchase wholly failed through default on the part of the coal company. The plaintiff on the other hand contended that the note was given him unconditionally; that it was given and accepted as an immediate payment for services he had rendered, and was, as expressed by its terms, an absolute promise to pay. The case presented a single question of fact, and that a very simple one. But another issue, not suggested by the pleadings and foreign to the case, was introduced on the trial, and submitted to the jury as a question of fact which, if found adversely to the plaintiff, would prevent recovery by him even though the note were established as an absolute obligation. The plaintiff had testified in answer to questions put by defendant’s counsel, that in the negotiation for the purchase of the land, he had represented no one but the defendant; that he had had no understanding or agreement with the coal company that he was to receive anything from the company or anyone representing it. The evidence that was thought sufficient to raise an issue of fact as to this matter is to be found exclusively in the testimony of the defendant himself. This witness was permitted to say that, “He rather thought that plaintiff was accepting pay from Chrisman,” the president of the coal company. When asked upon what he based this suspicion, for it was nothing more, his answer was: “On the return trip on our last visit to Williamsport he [plaintiff] told me that they [the coal company] disappointed him, that he did not get anything from them for his work so far.” Resting upon this conversation, which was explicitly denied by plaintiff, and this alone, for there is not a suggestion in the case outside of it that plaintiff was to receive anything from the coal company, the learned trial judge instructed the jury as follows, adopting a point submitted on behalf of the plaintiff: “If the jury find that Edwards, the plaintiff, was acting as agent for the Catawissa Coal Company, as well as for Meyers, and that he did not disclose this to Meyers until after the agreement of February 22, 1906, was executed at Williamsport, the verdict must be for the defendant, Meyers.” Unless this evidence, standing alone, as it certainly does, would justify an inference of the disputed fact the question should not have been submitted. The conversation did not explain itself. To conclude that the reference was the work plaintiff had done in negotiating a sale of the coal land, would be nothing better than surmise. Plaintiff, as an experienced mine inspector, before he was brought into relations with the defendant, had made an examination of the property for the president of the coal company, had furnished him with an estimate of the quantity of coal it contained, and for this had received no compensation. In face of this uncontradicted testimony, adduced by defendant on cross-examination of the witness, could a jury be justified in finding that the reference here was to the work plaintiff had done in reference to the sale to the defendant? Nor is it such an admission as would establish an agency with respect to the sale of the land. To give it such meaning, an agreement that the coal company was to pay the plaintiff for his services would have to be implied solely from the expression attributed to plaintiff that he was disappointed in not having received anything. At most the expression implies an expectation on his part that he would receive something by way of appreciation, without any obligation on the part of the company to bestow it. “When the testimony is before the court, it is their duty to see that it has at least a natural and reasonable tendency to sustain the allegations in support of which it is introduced, that it is of such a character as to warrant an inference of the fact to be proved, and amounts to something more than a mere basis for conjecture or vague speculation. If there is no sufficient evidence to justify an inference of the disputed fact, the court has the right and it is its duty to withhold it from the jury:” Battles v. Laudenslager, 84 Pa. 446. As supplementary to and sustaining other evidence pointing to a double employment of the plaintiff, had there been such, the alleged conversation would have had significance; but standing alone, it afforded no sufficient basis for inference as to the disputed fact. The effect of the submission was to raise an issue not in the case. The ruling of the court with respect to it is the subject of the first assignment of error, and this assignment is sustained.

The defendant asked for the following instruction: “The jury has the right to consider, in arriving at a verdict in this case, and in reconciling the conflict of testimony between the plaintiff and the defendant, the improbability that any person of ordinary business intelligence would agree to pay $5,000 to his agent, for the purchase of a $115,000 tract of land before he had seen or examined the land, or had the title to it examined, or had met the owners, or had made a contract with the owners for its purchase; and regardless of whether the owners had agreed to the terms proposed, or, if they had agreed, whether they were able to comply with them or not.” The affirmance of this point is next assigned as error. There was absolutely nothing in the evidence to warrant such instruction as was here gi ven. Speaking of a time subsequent to the giving of the $5,000 note, when asked about the payment of the $5,000, defendant testified that he and the plaintiff had been together all day and had reached a complete understanding in regard to the purchase of the property. These questions and answers followed: “Q. At that time, then, you were satisfied to purchase this property, were you not? A. Yes. Q. You had not seen the property, had you? A. No, sir. Q. Did you know where it was? A. No, sir. All I had was his word. Q. What word? A. Mr. Edwards’s word of honor that it contained so much coal and that was to be the price. Q. Did you ever investigate to find whether it did contain that much coal? A. No, sir. Q. You have no evidence to give here then that Mr. Edwards’s representation to you was not correct? A. No, I have not. Q. So that you were satisfied to purchase this piece of coal land upon the representation that Mr. Edwards made to you as to the contents of the land in coal. A. Yes, and the titles being clear.” The instructions assume that defendant was a man of at least ordinary business capacity. He admittedly was willing to do what the instructions assume a man of ordinary business capacity would not do — purchase a property for $115,000 he had never seen, solely upon the representations of another as to its value. He paid $1,000, as he said, to bind the bargain under just such conditions. Ten days thereafter, when he had been on the property but once and was then prevented by the eight or ten feet of snow upon it from examining it, or learning anything from observation of its value, he entered into a written article for its purchase and paid $5,000 on the purchase money. In the face of such testimony as this from the defendant himself, the instruction asked for should have been refused.

The defense was that the note in suit was to be paid only in case the purchase of the land was completed; that it never was so completed, and that failure resulted through no fault of the defendant. The defendant testified that he had refused to complete the purchase because the title to the land was unsatisfactory. No attempt was made to contradict this testimony or assert anything to the contrary. The record of a suit brought by the plaintiff against the coal company to recover back purchase money paid on the articles of agreement was offered in evidence. Whatever the purpose in offering this record was, it' was admitted only as evidence of the fact that the purchase had never been completed, and that defendant had rejected the title because unsatisfactory to him; the agreement having provided that the vendor was to make title satisfactory to the vendee. We cannot say that the evidence was inadmissible for the one purpose indicated by the court. Clearly it was unnecessary, as the fact intended to be proved by it was not contradicted, and it could have been rejected on this ground. Its admission, however, for the one limited purpose could have done the plaintiff no harm. The assignment of error which complains of the admission of this evidence is overruled.

For the reasons stated, the judgment is reversed and a venire facias de novo awarded.


text:
    Ackerman v. City of Williamsport, Appellant.

      Municipalities — Bridges—Streets—Negligence—Neglect to repair — • Dedication — Acceptance—Length of time necessary — User.
    1. So far as the duty of a municipality to keep its streets and bridges in a safe condition for public travel is concerned, a street dedicated to public use and accepted does not differ from a street laid out by municipal authority.
    2. Either dedication or acceptance of a street can be established by proof of user. As against the owner of the soil, who would reassert his right in the way, an adverse user for the statutory period may be shown; but as against a municipality which disclaims all duty in connection with the -way, the dedication by the owner not being in dispute, acceptance by the municipality may be shown by proof of public use for a much shorter period.
    3. Where a bridge company owning a bridge over a river, constructs a road as an approach to the bridge over its own land, and in doing so carries the road over a basin by a small bridge, and subsequently after the river bridge had been condemned, abandons the road, including the bridge over the basin, and the city in which the road is located assumes no care of the bridge over the basin so that it falls into disrepair, and as a consequence a person is injured, the city will be responsible for the injury if it appears that the accident happened thirty years after the construction of the road and fourteen years after its abandonment.

      Practice, C. P. —Pleading—Statement—Evidence.

    4. Where in a negligence case plaintiff’s statement avers a permanent disability of the plaintiff, evidence may be introduced as to the probable effect of the injuries on plaintiff’s future earning capacity.
    Argued Feb. 16, 1910.
    Appeal, No. 405,
    Jan. T., 1909, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1908, No. 451, on verdict for plaintiff in case of Charles Ackerman v. The City of Williamsport.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hart, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,875. Defendant appealed.

      Errors assigned among others were in refusing binding instructions for defendant and in refusing defendant’s second point, as follows: .
    2. To entitle the plaintiff to recover in this case he must prove that Maynard street at the point covered by the Basin bridge had, at or previous to the time of the accident, been accepted by the council of the city of Williamsport as a public highway. Answer: This point is refused.

      Frank P. Cummings, city solicitor, for appellant.
    — The municipality must do something to indicate the acceptance of the street as a public highway to render it liable for injuries: Steel v. Huntingdon Boro., 191 Pa. 627.
    The user must be defined, uniform, adverse, and under a claim of right, and must have continued for twenty-one years: Washington Boro. v. Steiner, 25 Pa. Superior Ct. 392; Com. v. Llewellyn, 14 Pa. Superior Ct. 214; Weiss v. Boro. of South Bethlehem, 136 Pa. 924; Verona Boro. v. R. R. Co., 152 Pa. 369.

      Charles J. Reilly, for appellee.
    — When a dedication to public use and the opening of a street for public travel by the owner are followed by its actual use by the public as a highway, the right in the public may become complete and’absolute within a much shorter period than twenty-one years: Washington Boro. v. Steiner, 25 Pa. Superior Ct. 392; Kennedy v. Williamsport, 11 Pa. Superior Ct. 91; Williamsport v. Lycoming County, 34 Pa. Superior Ct. 221.
   Opinion by

Mr. Justice Stewart,

March 28, 1910:

The plaintiff recovered in the court below for injuries sustained by the giving way of what is known as the Basin bridge in the city of Williamsport, while he was attempting to drive over it, The appeal raises these questions: first, was the evidence sufficient to show a duty resting on the city to keep and maintain in repair this bridge? second, if such duty attached to the city, was the evidence sufficient to charge the city with negligence in this respect? and third, under the pleadings and the evidence, should a recovery have been allowed for future loss of earning power? If the facts recited in appellant’s history of the case appeared in the testimony, several interesting questions would call for consideration before a conclusion could be reached as to the duty of the city with respect to the bridge. It cannot be said that we avoid these questions; we simply do not encounter them; they are undiscoverable from the record as made up, and to the record we are confined. We take the case as we find it. The plaintiff made no attempt to show that the portion of the street where the accident occurred had ever been formally laid out and ordained by the city. The witnesses all speak of it as Maynard street, and of the bridge, as Maynard street bridge. They describe the street as a public highway extending from an intersection with another public street to the Susquehanna river, the city’s southern boundary, there connecting with a bridge, the property of the county, across the river. The bridge on which the accident occurred is some 800 feet north of the river bridge. It further appears from the evidence that the street leading to the river bridge is of the usual street width; that it has been open to the general public and used by it for more than thirty •years, and that it is the only highway connecting the city with the borough of South Williamsport on the south side of the river. Its importance as a highway may be readily inferred. The duty of the municipality to keep its streets and bridges in a safe condition for public travel is not confined to streets which have been formally ordained and opened. A street dedicated to public use and accepted does not differ from a street laid out by municipal authority. If this was not one of the regularly ordained streets of the city, then if a public street at all, it must have become so through dedication and acceptance. Where dedication is once established, it becomes simply a question of acceptance by the public. Either can be established by proof of user. As against the owner of the soil, who would reassert his right in the way, an adverse user for the statutory period must be shown; but as against a municipality which disclaims all duty in connection with the way, the dedication by the owner not being in dispute, acceptance by the municipality may be shown by proof of public use for a much shorter period. “ When a street has been dedicated to public use by the owner, and used by the public, it requires a much less time to presume an acceptance by the public, than where there has been a user without such dedication: ” Com. v. Moorehead, 118 Pa. 344. In the present case the user was continued and uninterrupted for more than thirty years. A conclusive presumption arises that the street was originally dedicated, and the owners of the soil are precluded from asserting any other right therein than what is common to the public. The same evidence which concludes the owners and establishes a dedication, is more than sufficient to warrant a presumption of acceptance of the way by the municipality. Especially is this true where, as here, it is manifest that the use of the street is and has been not only advantageous, but indeed necessary for the public accommodation. Upon such a state of facts the plaintiff relied to fasten the duty of repair on the city. As against this the defendant offered absolutely nothing but the record of a proceeding instituted in 1891 by which the county of Lycoming acquired by condemnation the bridge over the Susquehanna river at the southern terminus of Maynard street. This bridge had been the property of a bridge company and was a toll bridge. We discover nothing in that proceeding that can affect this case. If it have any significance, it supports the theory on which the plaintiff went to trial, that the part of the street where the accident occurred had been dedicated and accepted. We gather from the record that the bridge company was the owner of the land between the northern end of their bridge and what was then the foot of Maynard street; that to connect the bridge with the street as it then was, it made this short extension of Maynard street in 1876 and in doing so constructed the bridge over the basin where this accident occurred. All this makes for and not against the plaintiff. It is alleged — we do not find it in the evidence — that the bridge company so long as it was in existence, down to 1891, exacted toll for passage over this small section of the highway as something separate from its river bridge. Suppose that to be true, a public use was impressed on it when public travel thereon was first invited, quite as much as on the bridge over the river; and when in 1891 the bridge company abandoned it, such abandonment did not affect its character as a highway, and the obligation thereafter to keep it in repair rested on the municipality: Pittsburg, etc., R. R. Co. v. Com., 104 Pa. 583. But whether we date the user from 1876, when the street was first opened, or from 1891, when the bridge company abandoned it and passed out of existence, the result must be the same. If from the later date, when it became entirely free and open to the public, then we have a period of fourteen years during which it has been constantly used. We have already said that this was quite sufficient to raise a presumption of acceptance by the city. The learned trial judge was entirely correct in holding that a duty rested on the city to maintain the street of which this particular bridge was a part in a safe condition for public, travel.

Whether the bridge was negligently permitted to be out of repair was a question for the jury, and was submitted under, proper instructions. The city had disavowed all responsibility, for it, and had exercised no supervision over it. The evidence: as to its condition showed clearly that its supporting timbers-were so decayed that its insecurity would have been discovered by even a superficial examination. .,.

The remaining question invites no discussion. Plaintiff’s, statement of cause of action contained an express averment that the injuries he received resulted in a permanent disability. This was quite sufficient to warrant the introduction of ¿vi-, dence as to the probable effect of the injuries on plaintiff’s, future earning capacity.

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


text:
    Brobst v. City of Williamsport, Appellant.
    Argued Feb. 16, 1910.
    Appeal, No. 406,
    Jan. T., 1909, by, defendant, from judgment of C. P. Lycoming Co., Sept. T.,-1908, No. 452, on verdict for plaintiff in case of William MiBrobst v. The City of Williamsport.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ. ■
    Affirmed.
    Trespass to recover damages for personal injuries. .

      Frank P. Cummings, city solicitor, for appellant.

      Charles J. Reilly, for appellee.
   Opinion by

Mr. Justice Stewart,

March 28, 1910:

The questions raised in this appeal are the same as those raised in No. 405, January Term, 1909, ante, p. 591. The appellee here recovered in the court below for injuries received in the same accident that was the basis of recovery in that case. Both cases were argued together, the facts and the law governing being the same in each. For the reasons stated in the opinion filed in No. 405, January Term, 1909, the assignments of error in this case are overruled, and the judgment is affirmed.


author: Per Curiam,

text:
    Milliken’s Estate.

      Wills — Trusts and trustees — Intestacy—Principal and income— Division and distribution of corpus.

      A testator gave his estate to trustees directing that his wife should “ during her lifetime receive out of the income of this my estate one-half thereof,” and that one-half of the corpus from which such income was derived should immediately upon his wife’s death be divided among his three children, and as to the "rest and residue of this trust,” he directed “that the interest and income accruing therefrom shall be shared by my three children alike” for life. He further directed as follows “In the event of the death of either my sons or daughter leaving issue — such issue shall take the same portion as the parent — be there one or many. The payment of the annuity to and among my children shall continue until the first death of any of my children after my decease — in that case as each of my grandchildren being issue of such deceased child of mine attains the age of twenty-one years he or she shall have the corpus or principal of any estate he or she is 'entitled to, taking only such portion as would come to the parent after division among such parents’ children per stirpes and not per capita. It is my will and I direct in case of the next of any of my children dying, the same order shall be observed, that is, that as each child attains the age of twenty-one he or she receive his or her proper share of the corpus of my estate, and so, after the death of my third or 'last child — My intent is that each of my three children shall receive only the income of my estate during their life excepting the one-half which they receive at my wife’s death and the like with their children, and that the proper share of the corpus or principal of my estate shall vest only in my grandchildren and then only in case that the parent of my blood be deceased and the grandchild be twenty-one years of age.” Held that the death of one of the children without issue in the lifetime of the widow and the other two children, created an intestacy as to the income only of that portion of the estate covered by the gift to such child, and did not call for the retiring from the trust of a sixth part of the principal of the estate.
    Argued Feb. 16, 1910.
    Appeal, No. 17,
    Jan. T., 1910, by Alice N. Milliken, J. I. B. Milliken and Anna B. Cullum, from decree of O. C. Schuylkill Co., Sept. T., 1908, No. 16, distributing balance in hand of trustees in Estate of Allan C. Milliken, deceased.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Audit of account of trustees and distribution thereunder.
    The facts appear, in the following opinion by Wilhelm, P. J.
    Allan C. Milliken died on December 12, 1905, leaving to survive him his widow, Alice N. Milliken, a daughter, Anna B. Cullum,' who is the mother of two children, to wit: James B. Cullum and Allan Milliken Cullum, a son J. I. B. Milliken, who is the father of A. C. Milliken, and a son, Joshua Rhodes Milliken, who died on April 24, 1908, unmarried and without issue.
    After making certain specific bequests the decedent provided for the persons hereinbefore named as follows:
    “As to all the rest and residue of my estate, whether real, personal or mixed, I give and devise and bequeath the same unto The Provident Life and Trust Company, of Phila., and Doctor Francis W. Boyer, of Pottsville, Penna., in trust nevertheless that they do perform the following Trusts and my will as hereinafter set forth, and in thus distributing my estate I do under agreement made by my wife that she will surrender all the Policies of Insurance (save the one heretofore mentioned in the Will) now standing in her name, and that the proceeds thereof shall be part of my estate and shall be collectible in like manner by the above named Executors and Administrators as if they stood in my name.
    “(b) My beloved Wife shall during her lifetime receive out of the income of this my estate one-half thereof and at her death this said one-half of the corpus of the estate from which the said income was derived shall be immediately taken out of the trust and shall be divided equally between my said three children and in event of the death of any of my children at that time they having issue — the issue shall take the same part or share that the parent would have taken if alive.
    “ (c) My above-named Trustees and Executors, shall pay to my dear Mother, Mrs. Mary E. Milliken, of Hollidaysburg, Penna., — the sum of twelve hundred dollars annually, so long as she may live, and I direct at my mother's death that the sum of three hundred dollars shall be paid to the following named person — my brother James F. Milliken three hundred dollars annually. At the death of my Mother nine hundred dollars shall- revert to my estate and at the death of my brother above mentioned three hundred dollars shall revert to my Estate. In other words the principal set aside for above mentioned trust shall revert to my estate at the death of my Mother & Brother.
    “ (d) As to the rest and residue of this Trust I direct that the interest and Income accruing therefrom shall be shared by my three children alike, but shall be paid under the following conditions — To my daughter Anna B. Cullum the full equal one-third thereof annually so long as she may live. To J. I. B. Milliken the sum of two thousand dollars and to Joshua Rhodes Milliken the sum of two thousand dollars each annually until the said Joshua Rhodes Millikeu shall arrive at the age of twenty-five years — when and after so long as they shall live — they shall receive the equal one-third share each and they shall at that time receive the accumulated income withheld during the prior years, that is from the time the interest first accrued so that each and their sister Anna B. Cullum may all have rec'd an equal sum of money up to the time my son Joshua Rhodes Milliken arrives at twenty-five years of age.
    “ (e) In event of the death of either my sons or daughter leaving issue — such issue shall take the same portion as the parent — be there one or many. The payment of the Annuity to and among my children shall continue until the first death of any of my children after my decease — in that case as each of my Grandchildren being issue of such deceased child of mine, attains the age of twenty-one years he or she shall have the corpus or principal of any Estate he or she is entitled to, taking only such portion as would come to the parent after division among such parents’ children, per stripes and not per capita. It is my will and I direct in case of the next of any of my children dying, the same order shall be observed, that is, that as each child attains the age of twenty-one he or she receive his or her proper share of the corpus of my .Estate, and so after the death of my third or last child — My intent is that each of my three children shall receive only the income of my Estate .during their life excepting the one-half which they receive at my wife’s death and the like with their children, and that the proper share of the corpus or principal of my Estate shall vest only in my Grandchildren and then only in case that the parent of my blood be deceased and the grandchild be twenty-one years of age,”
    A careful study of the above provisions of the will brings ,: conviction that the testator had a well-defined scheme in his mind as to the disposition of his estate. His first thought was ;!t.o provide for the comfort of his wife during her life. Knowing that one-half of the income of his estate would accomplish , ample provision for his wife as long as she lived, he divided the residue of his estate into two equal portions, one part, after the death of his wife, to become the absolute property of his children, the other half to become the property of his grandchildren at a certain time as set out in the will. There .can be. no doubt that he was just as desirous that the full • one-half portion of his estate would surely come to his grandchildren as that his children should come into the full en- • joyment of the other half of his estate after the death of his ■. wife:,
    In order to make his plan most surely effective he devised ■ the;, residue ..of his estate to trustees and defined the time at -■which'the’trust was to be dissolved and the corpus of the estáte should go to the designated classes of heirs. It is clear cfrom .the testator’s language, that his thought was to pro- ■ wide.for his wife, .children and grandchildren as certainly, as the means at hand would afford by the creation of the trust. It is equally clear that it was his purpose to protect each class of his beneficiaries as far as possible from the importunities of others, their own improvidence and the risks of trade and he was just as solicitous that this protection should preserve the interests of his grandchildren as he was that his children should be the beneficiaries of his protection. Therefore, he divided the residuary estate into two equal portions, the one portion to retire from the trust on the death of his wife, and the other full portion to remain in the trust until his grandchildren reached the age, when in his judgment they would be best qualified to take charge of their inheritance.
    In order to make certain that his grandchildren would come into their full one-half part of the principal of his estate which he set aside for them he provided: “My intent is that each of my three children shall only receive the income of my estate during their life excepting the one-half which they receive at my wife’s death.”
    In other words, he wanted his children and grandchildren to be equally provided for, each class to inherit the same portion of the corpus of his estate. His plan was perfectly lawful and would have worked out satisfactorily to everybody interested, but for the fact, that Joshua Rhodes Milliken died without issue.
    When we say that the testator divided his estate into two equal portions, we do not wish it to be understood that we find the testator directed his executors to make an actual division of the fund so that there would come to his widow during her life the income of one-half of the principal estate and to his children the income of the other half because the provisions of the will do not warrant such a condition. The evident intent of the testator was, that his executors should manage his estate in its entirety and without any division of the principal fund in their hands down to the time when his wife should die, because he says, “My beloved wife shall during her lifetime receive out of the income of this my Estate one-half thereof. ” This language would certainly indicate that one-half of the income of his whole estate was intended to go to his wife and precludes any construction that it was his intention that his wife should receive the income of only one-half of his estate. This conclusion is strengthened because in treating of the balance of the estate remaining in the trust after one-half of the estate has been divided among his children upon the death of their mother he uses the following language: “As to the rest and residue of this trust I direct that the interest and income accruing therefrom shall be shared by my three children alike, but shall be paid under the following conditions — To my daughter Anna B. Cullum the full equal one-third thereof annually so long as she may live. To J. I. B. Milliken the sum of two thousand dollars and to Joshua Rhodes Milliken the sum of two thousand dollars each annually until the said Joshua Rhodes Milliken shall arrive at the age of twenty-five years — when and after so long as they shall live — they shall receive the equal one-third share each and they shall at that time receive the accumulated income withheld during the prior years, that is from the time the interest first accrued so that each and their sister Anna B. Cullum may all have received an equal sum of money up to the time my son Joshua Rhodes Milliken arrives at twenty-five years of age.”
    This paragraph certainly indicates that the testator never had in mind any division of the corpus of the estate so long as it remained in the trust, and that his intention was that his wife and children were to receive the proportions of the income of his entire estate remaining in the trust as he directed in his will.
    It is contended that the death of Joshua Rhodes Milliken without issue has created a condition as to the corpus of that portion of the estate reserved for the grandchildren not provided for in the will, therefore, an intestacy to one-sixth part of the corpus of the estate exists and is presently distributable, because there is no provision made in the will -for what shall become of the share of a child dying without issue, either as to principal or income. We can subscribe to this view in so far as it disposes of the income, but as to the principal it was clearly the intention of the testator that the full equal one-half part of the corpus should ultimately vest in his grandchildren.
    The will is to be construed in its entirety and in the light shed upon it by the fact that the principal of the second portion is never to be enjoyed by the children and a distribution of the corpus of the second portion is in express terms deferred until each grandchild attains the age of twenty-one years, and then only in the event of the death of its parent. We feel we would be violating the terms of the will if a portion of the principal of the estate should at this time be retired from the trust.
    We are further confirmed in this view, because it is provided that in the event of the death of either of the surviving children the issue of such child is entitled to the income of the estate to which the parent was entitled; that is, to a share of the whole income of that portion of the estate set aside by the will, and we have no power to deprive them of any portion of it.
    Under the ruling in DeSilver’s Est., Aubert’s App., 119 Pa. 48, there is an intestacy to the income only of that portion of the estate covered by the bequest to Joshua Rhodes Milliken; and the intestacy relates back to the date of the death of the decedent and distribution will be made accordingly: Stewart’s Est., 147 Pa. 383.

      Error assigned was the decree of distribution.

      Guy E. Farquhar, with him Otto E. Farquhar, for appellants.
    — An heir at law or person entitled under the intestate laws can be disinherited only by an express devise or by necessary implication, and the implication must be so strong that an intention to the contrary cannot be supported: Rupp v. Eberly, 79 Pa. 141; Bender v. Dietrick, 7 W. & S. 284; Hitchcock v. Hitchcock, 35 Pa. 393; Harrison’s Est., Barry’s App., 20 W. N. C. 26; Bloodgood’s Est., 8 Pa. C. C. Rep. 546; Faulstich’s Est., 154 Pa. 188; Cowles v. Cowles, 53 Pa. 175; France’s Est., 75 Pa. 220; Shaner v. Wilson, 207 Pa. 550; Kane’s Est., 185 Pa. 544; Brendlinger v. Brendlinger, 26 Pa. 131; Nebinger’s Est., 185 Pa. 399; Abel v. Abel, 201 Pa. 543; Corr’s Est., 202 Pa. 391.

      Charles E. Berger, for Charles E. Berger, guardian ad litem for James B. Cullum and Allan Milliken, minor children of Anna B. Cullum; and Allan C. Milliken, minor child of J. I. B. Milliken, appellee.
    — The grandchildren have an interest in having the trust fund remain intact until the period of distribution fixed by the will is at hand: Wilen’s App., 105 Pa. 121; Aubert’s App., DeSilver’s Est., 119 Pa. 48; Getz’s App., 125 Pa. 611; DeSilver’s Est., 142 Pa. 74; DuPlaine’s Est., 185 Pa. 332; McCallum’s Est., 211 Pa. 205.

      H. Gordon McCouch, with him Norman S. Farquhar, for The Provident Life & Trust Company of Philadelphia and Francis W. Boyer, M. D., trustees, appellees.
   Per Curiam,

March 28, 1910:

The decree of distribution is affirmed for the reasons stated in the opinion of the learned judge of the orphans’ court.


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    Powell, Appellant, v. Scranton.

      Res adjudicata — Quarter sessions — Equity—Municipalities—Annexation of land.

    An order of the quarter sessions by which territory is annexed to a city, unappealed from, is a final judgment and cannot be attacked in a-collateral proceeding in equity.
    Argued Feb. 21, 1910.
    Appeal, No. 332,
    Jan. T., 1909,.- by plaintiff, from judgment of the Superior Court, March T., .1909, No. 68, affirming decree of C. P. Lackawanna.: Co., Sept. T., 1908, No. 35, dismissing bill in equity in .case of David J. Powell'v. City of Scranton, City of Scranton School District and F. L. Hitchcock, Treasurer of City of Scranton.
    Before Fell, C. J., Beown, Mesteezat, Pottee and MospHzisicee, JJ.
    Affirmed.

      Bill in equity to restrain collection of taxes. Before Edwards, P. J.
    The facts appear in the following opinion of the Superior Court by Orlady, J.
    This case was disposed of in the court below on a bill in equity and a demurrer thereto. After a full argument the demurrer was sustained and the plaintiff’s bill dismissed. A reversal of the judgment would mean the overruling of the decision of this court in Sheraden Borough, 34 Pa. Superior Ct. 639, which, after a further examination of the questions involved in that and this case, we are not willing to do. There is nothing to be gained in a review of the reasons for our conclusion as stated in the report of Sheraden borough case.
    A further purpose of the bill is to review and reverse a decree of the court of quarter sessions of Lackawanna county, by which certain territory was annexed to the city of Scranton, which stands unappealed from, and a final judgment. The question raised here in this bill in equity was raised and was fully considered in the court of quarter sessions of Lackawanna county in that case, and it must be conceded that the court of common pleas has no authority to review and set aside the judgment of that court.
    Every judgment must be conclusive until reversed. Such is the character, nature and essence of all judgments. If it be not conclusive it is not a judgment. A court must either have power to settle a given question finally and forever, so as to preclude any further inquiry upon it, or else it has no power to make any decision at all. To say that a court may determine a matter and that another court may regard the same matter afterwards as open and undetermined, is an absurdity.
    The Act of April 28, 1903, P. L. 332, has been declared constitutional by this court in the Sheraden borough case, and the court of common pleas in the case now before us rightly followed the conclusion reached by this court. See further, Com. v. Parsons, 217 Pa. 435; Higgins v. Price, 36 Pa. Superior Ct. 215. A special discussion of the facts is not necessary in the light of these decisions. The judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      William J. Fitzgerald, with him James J. Powell, for appellant.

      W. S. Diehl, with him David J. Davis, city solicitor, and J. F. Scragg, for appellees.
   Per Curiam,

March 28, 1910:

The judgment is affirmed for the reasons stated in the opinion of the Superior Court.


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    Dox’s Estate.

      Decedents’ estates — Executors and administrators — Practice, O. C.— ’ Review of accounts.

    A petition for a review of an executor’s accounts is only granted as of right for error on the face of the record or new matter arising after the decree of confirmation, or as a matter of grace for new proofs discovered after the decree which could not have been obtained before.
    Argued Feb. 22, 1910.
    Appeal, No. 9,
    Jan. T., 1910, by Eugene Frantz, surviving joint-petitioner, from decree of O. C. Lackawanna Co., No. 55 of 1904, dismissing petition for review of the account of M. J. Martin, executor in Estate of Mary Augusta Dox.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Petition for review of an executor’s accounts. Before Sando, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the decree dismissing the petition.

      Samuel B. Price, with him James E. Davis and Cole B. Price, for appellant.

      Ralph W. Rymer, with him John P. Kelly, for appellee.
   Per Curiam,

March 28, 1910:

This appeal is from an order dismissing a petition for a review of the account of an executor. The appellant was a legatee to whom, in the distribution account, certain bonds were set apart in payment of his legacy. This was done in pursuance of a power given the executor by the will. The petition for review was filed a year after the final confirmation of the executor’s account and the distribution account filed with it, and after distribution had been made of all other assets of the estate. The appellant had notice by advertisement and personally of the filing of the accounts and had full opportunity to object to them. Under this state of facts he had no standing as of right to a review. There was no error on the face of the record, or new matter that had arisen after the decree of confirmation: LeMoyne’s App., 104 Pa. 321. He had no standing as a matter of grace because of new proofs discovered after the decree which could not have been obtained before.

The order is affirmed at the cost of the appellant.


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    Gregory v. Huslander, Appellant.

      Payment — Receipts—Attorney and client — Evidence.
    1. A receipt given by a client to her attorney “in full payment” of a certain sale transaction is prima facie evidence of a settlement in full of the matter to which it refers, and is not to be set aside except for fraud, accident or mistake, but it is always open to explanation or correction.
    2. A receipt is like any other parol admission by the party, open to contradiction, explanation or correction.
    Argued Feb. 22, 1910.
    Appeal, No. 354,
    Jan. T., 1910, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 1,661, on verdict for plaintiff in case of Laura A. Gregory v. W. S. Huslander.
    Before Fell, C. J., Brown, Mestrezat, Potter and Móschzisker, JJ.
    Affirmed.
    Assumpsit for money alleged to be due. Before Edwards, P. J. '
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for 13,043.24. Defendant appealed.

      Error assigned among others was the answer to defendant’s third point as follows:
    3. If the jury believe that Laura A. Gregory executed the receipt dated December 9, 1904, it is prima facie evidence of settlement and should not be set aside except for fraud, accident or mistake, and the cause of setting it aside should distinctly appear. Answer: I affirm this point, but I add to it the following explanation: that a receipt is like any other parol admission of the party signing it, and it is open to explanation or correction, and he may show that it was made by mistake or does not exhibit the truth or state all the facts.

      S. B. Price, with him J. F. Scragg, C. B. Price and J. E. Davis, for appellant.

      W. N. Leach, with him George Morrow, for appellee.
   Per Curiam,

March 28, 1910:

This action was by a client against her attorney to recover money alleged to be due her on an account growing out of the purchase and sale of a tract of coal. The plaintiff furnished the purchase money and by agreement the title was placed in the defendant’s name and he executed a declaration of trust for an undivided half interest and agreed to pay the plaintiff one-half of the proceeds of the sale of the coal. The-questions of fact were carefully submitted to the jury, and a discussion of them would serve no useful purpose. The instruction in relation to the effect of a receipt “in full payment of a share of coal sold,” given by the plaintiff to the defendant, was free from error. Such a receipt is prima facie evidence of a settlement in full of the matter to which it refers, and is not to be set aside except for fraud, accident or mistake, but it is always open to explanation or correction. “A receipt is like any other parol admission by the party, open to contradiction, explanation or correction:” Russell v. Church, 65 Pa. 9.

The judgment is affirmed.