text:
    Bruner, Appellant, v. Finley.
    February 25, 1907:

      Res adjudícala — Ejectment—Equity—Trusts and trustees.

    In an ejectment a verdict for the defendant will be sustained, where it appears that in a previous equity suit in which the parties were the same, the properties were the same, and the equity set up against the legal title was the same, a decree was entered against the plaintiff.
    Argued Jan. 11, 1907.
    Appeal, No. 264, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 333, on verdict for defendants in case of Meta N. Bruner v. Annie B. Finley et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Crescentville, City of Philadelphia.
    For the facts see Bruner v. Finley, 187 Pa. 389, where the issue raised by the present ejectment was adjudicated.
    The court gave binding instructions for defendants.
    Yerdict and judgment for defendants. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendants.

      A. J. II. Franh, for appellant.

      Jas. Aylward Develin, with him Monaghan dé Phillips, for appellees.
   Opinion by

Mr. Justice Fell,

This was an ejectment against the heirs of Thomas Finley, and the question was whether he took title subject to a trust twenty-eight years before the action was brought. The plaintiff in her declaration based her right to recover on two written declarations of trust, one by Browning, who conveyed to Finley by deed absolute, and one by Finley. Neither was proved and the case might have been ended on this ground. If the declarations alleged had been proved they would not have made out the plaintiff’s case for the reason that under the terms of the trust declared upon she was not entitled to a conveyance. The whole subject in dispute was, however, finally adjudicated in a proceeding in equity in 1898 : see Bruner v. Finley, 187 Pa. 389, in which a bill for an account was filed. In that proceeding the precise question here raised was decided adversely to the plaintiff by a court of competent jurisdiction, the parties were the same as in this action, the same properties were in dispute, and the equity set up against the legal title was identical. An accounting was refused for the reason that no trust had been established, and in dismissing the bill it was said that “ the plaintiff had no possible claim in equity or at law against these defendants.” The binding effect of that adjudication set at rest the rights involved in this action.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Allentown National Bank v. Clay Product Supply Company, Appellant.

      Promissory notes — Indorsement—Holder for value — Holder in due course.

    Where a bank accepts from one of its debtors a promissory note on which the debtor is second indorser, and on receipt of the note extends time to the debtor, applies the proceeds of the note as a credit to the debtor’s account, and receipts and relinquishes bills of shipment pledged as collateral, and there is nothing to connect the bank with anything that took place 'between the original parties to the note, the bank is not only a holder for value, but a holder without any notice of infirmity in the instrument, or any right of set-off in connection therewith, and is therefore a holder in due course.

      Promissory notes — Renewal note — Possession and use of renewal note.

    Where a bank has positively refused to accept a renewal note, it cannot subsequently be held to have accepted the note merely because when it wanted to make a demand on. the original note, it procured the renewal note to attach it to the original, so that both could be restored to the maker on payment.
    Argued Jan. 14, 1907.
    Appeal, No. 266, Jan. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1905, No. 3,450, on verdict for plaintiff in case of Allentown National Bank v. Clay Product Supply Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Audenried, J.
    The note in suit was in the following form:
    “ $1,500.00. Newark, N. J., Feb. 18, 1904.
    “ Four months after date we promise to pay to the order of Clay Product Supply Co. Fifteen hundred and 0-100 dollars, at Essex Co., National Bank.
    “ Value received, with interest.
    “(Signed) • Yan Keuren & Son,
    “Wm. Yan Keurbn, President.
    “ Endorsed:
    “Pay to the order of Hickory Run Brick Co.
    “ Clay Product Supply Co.,
    “ J. Mortimer West, Jr., Treasurer.
    “ Hickory Run Brick Co., S. N. Weaver, Treasurer.
    “ (Duly protested for non-payment; costs of protest, $1.85.)”
    Other facts appear by the opinion of the Supreme Court.
    The trial judge gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff for $1,695.60. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.'

      Clifton Maloney for appellant. —
    Having the note indorsed by the brick company served to connect the bank with the transaction, and show its consent to the payment of the amount of the bills to the bank, and was in line with the request of the defendant’s treasurer to the plaintiff that the bills be made out in the name of the brick company to connect the transaction with the latter’s account: Clothier v. Webster Foundry Sand Co., 21 Pa. Superior Ct. 386; Adams v. Ashman, 203 Pa. 536.
    The giving of the note, of course, does not prevent the defendant from setting up the defective nature of the bricks delivered: Clement v. Eeppard, 15 Pa. 111; Hildeburn v. Curran, 65 Pa. 59.
    February 25, 1907:
    It is submitted that the plaintiff, knowing the new note was to take the place of the first, and haying retained it with this knowledge, is bound by its election: Washington Nat. Gas Co. v. Johnson, 123 Pa. 576; Christman v. Martin, 7 Pa. Superior Ct. 568; Cake v. First Nat. Bank of Lebanon, 86 Pa. 303; Hart v. Boller, 15 S. & R. 162.

      Thomas F. Gross, for appellee, cited:
    Heist v. Hart, 73 Pa. 286; Philler v. Patterson, 168 Pa. 468; Martin v. Berens, 67 Pa. 459; Mechanics’ Nat. Bank v. Kielkopf, 22 Pa. Superior Ct. 128; Cake v. Bank, 86 Pa. 303.
   Opinion by

Mr. Justice Stewart,

This was an action on a promissory note by holder against indorser. The defense attempted was twofold; first, failure of consideration; and second, that the plaintiff had discharged all liability on the note in suit by retaining another which was given and intended as a renewal. An essential preliminary to the first defense, was denial that plaintiff was a holder in due course. The facts were these. Yan Keuren & Sons had contracted to do certain municipal paving work in the city of Newark. The contract provided that the brick to be used should be subject to the acceptance of the city authorities. Yan Keuren & Sons contracted with the Clay Product Supply Company, the defendant, to furnish the brick for the work, and the Clay Product Supply Company, not being a manufacturer, engaged them of the Hickory Eun Brick Company. Each contract contained the stipulation that the brick were to be subject to the acceptance of the city authorities. The Hickory Eun Brick Company, in order to fill its contract, was compelled to borrow money to carry on its operations. The Allentown National Bank, the plaintiff, discounted certain notes of this company, receiving as collateral security at the same time for their payment, the bills of shipment of brick to the Product Supply Company duly assigned and transferred to the bank. Such of these assigned bills as were paid, were paid by the Product Supply Company directly to the bank, and the amounts were credited to the account of the Hickory Eun Brick Company. Some of the brick for which bills of shipment had been assigned to the bank, were condemned by the city authorities. Van Keuren & Sons withheld payment to the Product Supply Company for these, and that company in turn withheld payment to the bank on the assigned bills. Thereupon the bank demanded payment of the note of the Brick Company, which was then due, and also made demand upon the supply company for payment of the bills assigned. The Brick Company being unable to meet its note, its treasurer, Mr. Weaver, to satisfy the demands of the bank, prevailed with Yan Keuren & Sons to give their note to the Supply Company for $1,500, approximately the amount of the unpaid bills of shipment, and had the Supply Company indorse this note over to the Brick Company, the Brick Company indorsing it over to the bank. This is the note in suit. It was given by Yan Keuren & Sons and indorsed by the Product Supply Company in expectation that the brick would eventually be accepted by the city authorities. Whatever inducements were held out by Weaver to Yan Keuren & Sons or the supply company to obtain this note from them; or whatever representation were made as to its subsequent renewal by the bank, the evidence fails to show that the bank was in any way involved therein. If Weaver assumed to speak for the bank, such fact could prejudice the bank only as it were shown that he was authorized so to do, or that the bank had accepted the note with knowledge of the representations made by him. There is no evidence to connect the bank with what transpired between the original parties to the note. By receiving the note, the bank extended the time of payment to the advantage of the Brick Company; the proceeds were applied as a credit to the latter’s account; and the bills of shipment pledged as collateral were receipted and relinquished. From the facts as they appear in the case but one conclusion can be derived— the bank was not only a holder for value but a holder without any notice of infirmity in the instrument or any right of sot-oif in connection therewith. It was therefore a holder in due course. The facts in regard to the later note, which it was claimed was a renewal of the note in suit, do not support defendant’s contention. Had this note been accepted by the bank as a renewal, it would have been an extinguishment of the right of action on the note in suit; but it was not so accepted. It was drawn by the same party, for the same amount, payable to the order of the Supply Company, and by the latter indorsed over to the Brick Company; but meanwhile the latter company had passed into the hands of a receiver. When tendered by the treasurer of the Brick Company to the bank, it was unavailable to the bank, being unindorsed, and was rejected. The reason assigned was that the bank was unwilling to do anything in the matter that would release the Brick Company from its liability on the other note. Being rejected by the bank it remained in the hands of the treasurer of the Brick Company. Subsequently, when the bank desired to make demand for payment of the note in suit upon the maker, it procured from the treasurer of the Brick Company the note that had been rejected, attached it to the other and forwarded both to its correspondent in Newark to be presented for payment. There is nothing in all this that would warrant an inference that the bank had at any time accepted the note in renewal of the first. In Hart v. Boller, 15 S. & R. 162, and in each of the other cases relied upon by appellant, there were circumstances from which an intention to accept might be deduced, and it was held error for the court to exclude the jury from the decision of the question, but here was a positive and unquestioned refusal of the bank to accept the note when tendered, with not a single circumstance to qualify it, or show a change of purpose in this regard, except the mere fact that when the bank wanted to make demand upon the drawer, it procured the note to attach it to the original so that both could be restored to the maker on payment. A finding by the jury from such facts that the bank had accepted the note could not be sustained; and therefore no submission of the question was required. It was a case that called for binding instructions, and there was no error in directing the verdict for the plaintiff.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Isman v. Hanscom, Appellant.

      Landlord and tenant — Lease—Stipulation as to removal of chattels —Alterations—Additions—Improvements—Equity—Injunction.

    When a landlord and tenant stipulate in their lease as to the ownership of chattels which may be placed on the demised premises by the tenant, the stipulation will be enforced regardless of what might bn the rights of the parties at common law. In such a case the contract is the law made by the parties themselves, and that must determine; their rights. The question of trade fixtures does not enter into the case.
    Where a lease provides that “all alterations, additions and improvements,” except moveable furniture shall at the option of the lessor at the end of the term become the property of the lessor, and it appears that the premises are leased for restaurant purposes, the lessor may claim in the exercise of his option such additions as shelving, dumb-waiters, brick ovens, electric light apparatus, gallery, vestibules and toilet rooms.
    Where the parties to such a lease fix no time in which the option should be exercised, reasonable notice of the option is all that is required. Notice given four weeks before the end of the term is sufficient.
    Where an assignee of a lease is designated in the assignment as “agent,” and subsequently as agent of an undisclosed principal gives three months ’ notice to the tenant to quit, and notifies the tenant that he exercises an option given to the lessor in the lease, the agent may maintain a bill in equity to restrain the tenant from removing chattels in violation of the option.
    Where a lease gives to the lessor an option to retain additions and improvements at the end of the term, and the lessor has given due notice of the exercise of such option, he has a standing to maintain a bill in equity to restrain the lessee from removing such additions and improvements.
    Argued Jan. 14, 1907.
    Appeal, No. 127, Jan. T., 1906, by defendants, from decree of C. P. No. 5, Phila. Co., Dee. T., 1904, No. 852, on bill in equity in case of Felix Isman, Agent, v. Edward E. Hanscom and Melville Hanscom, trading as Hanscom Bros.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Ralston, J.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that fittings referred to in the bill were as follows: Shelving, etc., gentlemen’s toilet room, etc., ladies’ toilet room, etc., four dumb-waiters, inlaid floor, vestibule, wall decorations, two brick ovens, electric lights, apparatus, etc., gallery.

      Error assigned was the decree awarding a permanent injunction.

      Edmund W. Kirby, with him Robert J. Byron, for appellants.
    The articles installed by defendants were erected for the purposes of trade and are trade fixtures, which the defendants have the right to remove : Seeger v. Pettit, 77 Pa. 437; Straight v. Mahoney, 16 Pa. Superior Ct. 155; White v. Arndt, 1 Whart. 91; Wright v. DuBignon, 114 Ga. 765 (40 S. E. Repr. 747); Baker v. McClurg, 198 Ill. 28 (64 N. E. Repr. 701); Raymond v. Strickland, 3 L. R. A. (New Series) 69.
    The court- erred in holding that the option in the lease for the retention of the chattels was exercised in time to bind the appellants.
    The exercise of the landlord’s option not having been attempted until after defendant had begun to remove certain of the fixtures referred to, was too late: Sutcliff v. Isaacs, 1 Parsons, 494; Mammoth Vein Consolidated Coa1 Co.’s App., 54 Pa. 183; People’s Pass. Ry. Co. v. Union Pass. Ry. Co., 35 W. N. C. 311; Miles Corson Co. v. Young, 29 W. N. C. 256.
    The damage likely to be suffered by complainant by the removal of the property by defendants is not irreparable, but, on the contrary, is subject to legal estimation, and complainant therefore has an adequate remedy at law: Richards’s Appeal, 57 Pa. 105; Com. v. Pitts. & Connellsville R. R. Co., 24 Pa. 159; Raub v. Tamany, 5 Luz. L. R. 114; Berlew v. Elec. Co., 1 Pa. C. C. Rep. 651; Harley v. Water Co., 174 Pa. 416; W. U. Tel. Co. v. P. & R. R. R. Co., 9 Phila. 494; Pfund v. Berlinger, 9 Phila. 549; Bangor Excelsior Slate Co. v. Shimer, 12 Pa. Dist. Rep. 777; Phila. Ball Club v. Lajoie, 202 Pa. 210.

      Alexander Henry Carver, for appellee.
    Where an agent without disclosing his principal executes a lease of a house in his own name the tenant holds under the agent. And it makes no difference if the agent in signing the lease wrote “ agent ” after it: Seyfert v. Bean, 83 Pa. 450; Holt v. Martin, 51 Pa. 499; Bedford v. Kelly, 61 Pa. 491; Wenger v. Raymond, 104 Pa. 33; Barrett v. Bemelmans, 163 Pa. 122.
    February 25, 1907:
    Where a lease by a covenant contained therein allows the tenánt to remove certain articles at the end of his term which otherwise would have been regarded as immovable, it is a binding provision: Wick v. Bredim, 189 Pa. 83; Gulick v. Heermans, 6 Luz. Leg. Reg. 227; Carver v. Gough, 153 Pa. 225; Meigs’s App., 62 Pa. 28.
    The right of a tenant to remove fixtures during his term may be limited and controlled by the terms of his lease : Harris v. Kelly, 13 Atl. Repr. 523; Agnew v. Whitney, 10 Phila. 77; Whitney v. Shippen, 89 Pa. 22; Folsom v. Cook, 115 Pa. 539.
    The leading cases on the subject conform to the opinion that a covenant or condition in a lease similar to the one in the case at bar, is binding upon the lessee, and includes in its subject-matter articles which ordinarily the tenant could have removed: Martyr v. Bradley, 2 Moore & Scott, 25; West v. Blakeway, 3 Scott (N. R.), 199; Wilson v. Whateley, 1 Johns. & H. 436; Center v. Everard, 19 Misc. Rep. 156 (43 N. Y. Supp. 416); French v. New York, 29 Barb. (N. Y.) 363; Parker v. Wulstein, 48 N. J. Eq. 94 (21 Atl. Repr. 623); Ames v. Trenton Brewing Co., 56 N. J. Eq. 309 (38 Atl. Repr. 858); Whitney v. Shippen, 89 Pa. 22; Agnew v. Whitney, 10 Phila. 77; Harris v. Kelley, 12 Cent. Repr. 394; Kenney’s App., 22 W. N. C. 89.
   Opinion by

Mr. Justice Mestrezat,

The important and controlling question in this case arises out of the construction of the lease between the parties. The question of trade or tenant fixtures does not enter into the case, and hence need not be considered. The lease, which is the contract between the parties, determines the ownership of the property in question, and'hence the rights of the parties thereto depend entirely upon the proper interpretation of the instrument. If the lease had been silent as to the ownership of the various items of property in dispute, then it would have been necessary to determine whether the property was trade fixtures, and if so, to whom it belonged, to the landlord or the tenant. When, however, a landlord and tenant stipulate in their lease as to! the ownership of chattels which may be placed upon the demised premises by the tenant, the stipulation will be enforced regardless of what might be the rights of the parties at common law. In such cases, the contract is the law made by the parties themselves, and that must determine their rights.

By an agreement dated November 14, 1899, Henry C. Lea leased to the defendants the ground floor, basement and second floor of the premises at No 1315 Market street, in the city of Philadelphia, for a term of five years and sixteen days, commencing on December 15, 1899. The premises were to be used as a restaurant and were fitted up for that purpose by the lessees who installed therein the various items of property set out in the bill and which are in dispute in this controversy. The lease contained the following clause: “ And the said lessees shall not make any alterations, additions or improvements to the hereby demised premises without first having the consent, in writing of the lessor, and after such consent having been given, all alterations, additions and improvements, made by either of the parties hereto, upon the premises, except movable furniture put in at the expense of the lessees, shall at the option of the lessor remain upon the premises at the expiration or sooner determination of the lease, and be surrendered with the premises, without molestation or injury, and become the property of the lessor, or at the option of the lessor, the said lessees shall restore the said premises to the same good order and condition as the same are now.”

On March 19, 1902, Henry C. Lea assigned to Felix Isman, Agent, all his “right, title and interest in this lease and. all benefit and advantages to be derived therefrom.” On August 30,1904, Isman gave the defendants written notice to quit the premises on December 31,1904; and on December 3,1904, he notified them in writing “ not to remove any of the additions, alterations or improvements .... ‘except to restore to its former condition the party wall between No. 1315 Market street and the building adjoining it on the east.’ ”

In the early part of December, 1904, the defendants having begun to remove some of the structures which they had installed in the demised premises, the plaintiff filed this bill praying for an injunction to restrain them from removing the property specifically set out in the bill. The court below issued a preliminary injunction which was subsequently made permanent. The defendants’ contention, below and hero, is that the structures were installed by them in the demised premises for the purpose of their business, and are to be considered as trade fixtures which they have a right to remove. The plaintiff claims that the structures were “ alterations, additions and improvements,” and not “ movable office furniture,” within the terms of the lease, and that therefore the defendants could not remove them from the leased premises.

As said above, the rights of the parties in this litigation depend upon the interpretation of the contract. We are clear that the structures erected on the demised premises or the chattels installed therein by the defendants are alterations, additions and improvements,” within the' terms of the lease, and as such belong to the plaintiff, the landlord, at his option. These words are of broad signification, and are sufficiently comprehensive to include the various chattels which the defendants installed in the premises. By reference to the numerous cases cited in the appellee’s paper-book, it will be seen that judicial construction has fixed the interpretation of these words, and gives them a significance that will include each and every item of property installed by the defendants in the demised premises. It would unnecessarily prolong this opinion to cite these authorities. It is difficult to see what change in the premises could be made, or what chattel could be installed therein, or what repairs could be made thereto, which would not be included in the words alterations, additions and improvements.” Every article enumerated in the bill in this case will be found included in the description of property which was to remain on the premises, and belong to the lessor at his option.

Aside from the reasons just stated, we think that the exception in the clause in question conclusively shows the chattels which are included in the words “ alterations, additions and improvements.” The only property put upon the premises by the lessees which continued to belong to them and they were permitted to remove by the terms of the lease was “ movable furniture put in at the expense of the lessees.” This exception in the clause is in immediate connection with the declaration that all alterations, additions and improvements should remain upon the premises at the expiration or sooner determination of the lease, and at his option belong to the lessor. If it had been the intention, as contended by appellants, that trade fixtures should be an exception with the right to the lessees to remove them at the determination of the lease, the parties would certainly have so stipulated in the contract. An inference that such was the intention of either or both of the parties to the contract has nothing whatever to support it in the terms of that instrument. On the contrary, the presumption is that the property excepted by the lease from that which should remain on the demised premises is the only property which the parties intended should continue to belong to the lessees and be removed by them at the expiration of the lease. There is nothing in the lease to justify any other interpretation of the language in question. “ Movable furniture put in at the expense of the lessees ” and that alone is the only property which the parties agreed should be excepted from that which should at the option of the lessor remain on the demised premises at the expiration of the lease. Such being the fact, it is wholly immaterial whether any of the chattels or structures placed upon the demised premises were trade fixtures. The contract prevents their removal and invests the lessor with the title. We cannot, if we would, make a new and different contract for the parties; we can only interpret the contract which they made for themselves. If, as now-alleged by the lessees, they are the owners of the property in question and should have the right to remove it from the demised premises, the answer is that the contract under which they must claim it, if at all, does not support their allegation.

The parties fixed no time in which the option should be exercised, and we think the lessor gave the lessees reasonable notice not to remove the property from the premises. If he had required them to remove the numerous articles instead of permitting them to remain in the building, there would be a better reason for the defendants’ contention. It would be unreasonable to hold that under the agreement the lessor was required to exercise his option at the time the property was installed in the premises — over five years before the expiration of the lease. During that time, there might be many changes, not only in the business of the present owner, but in the ownership of the demised premises, which would affect and control the exercise of the option. In fact, we see that the title to the property is now in another than Mr. Lea who leased to the defendants. Such changes in the ownership of city property may be anticipated, and to require a landlord to exercise an option affecting it materially, five years prior to the expiration of the lease, might prejudice an otherwise advantageous sale. All that the lessees had the right to demand of their landlord was that he exercise his option so as to give them reasonable time in which to comply with his request; and he having done so, they have no just ground of complaint.

There is nothing in the contention that the plaintiff had no right to file the bill. The lease was assigned by Lea to “ Felix Isman, Agent,” and transferred to him all Lea’s “right, title and interest in this lease, and all benefits and advantages to be derived therefrom.” In addition to the fact that Isman as the agent of an undisclosed principal is the owner of the lease, it also appears that he gave the three months’ notice to the defendants to vacate the premises, and also notified them that he exercised the option to retain the alterations, additions and improvements which were put upon the premises. The defendants held the property under him as agent, and they are not in a position to contest his title or his right to maintain the bill.

Nor is there any merit in the contention that the plaintiff has an adequate remedy at law and that, therefore, a bill will not lie to enjoin the defendants from removing the structures erected on the demised premises during the continuance of the lease. Such jurisdiction in equity has been frequently exercised in this and other states, as a reference to the numerous decisions on the subject will show.

The assignments of error are overruled and the decree is affirmed.


text:
    McCabe, Appellant, v. Philadelphia.

      Negligence — Municipalities—Sidewalk—Ice—Hole in ice — Proximate and remote came — Notice—Nonsuit.
    In an action against a city by a girl to recover damages for personal injuries, it appeared that plaintiff’s foot and leg plunged into a hole in the ice on a sidewalk. It was' shown that the sidewalk was entirely covered with ice for a considerable distance, and at the place of the accident the ice was between two and three feet deep. The hole was large enough to admit the foot, and was full of water. It was deep enough to wet the plaintiff’s stocking nearly up to her knee. She testified that she did not slip on the ice, but that her foot 'plunged directly into the hole. Plaintiff had passed over the pavement daily, but had not observed the hole before. Two of her witnesses testified that they had seen an opening in the immediate locality where the accident happened, but they did not clearly identify the opening which they saw with that which occasioned the accident. The authorities had no actual notice of the existence of the hole. The evidence showed that the weather had been unusually severe, and so continuous, that the icé on the pavement was. constantly accumulating. Held, (1) that the hole and not the accumulation of ice was the proximate cause of the injury; (2) that a nonsuit was properly entered.
    Argued Jan. 14, 1907.
    Appeal, No. 249, Jan. T., 1906, by-plaintiffs, from order of C. P. No. 1, Phila. Co., June T., 1905, No. 1,015, refusing to take off nonsuit in case of Mary E. Mc-Cabe, a minor, by her father and next friend, John T. McCabe, and John T. McCabe in his own right v. City of Philadelphia.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bregy, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Frederick H. Warner, with him Arthur B. Eousemcm, for appellants.
    The negligence of the city was clearly established both in regard to the sheet of ice and the hole in it: Dean v. New Castle, 201 Pa. 51; Need v. Schuylkill Haven Boro., 22 Pa. Superior Ct. 27.
    February 25, 1907:

      Howry T. Kingston, assistant city solicitor, with him. John L. Kinsey, city solicitor, for appellee.
    It would seem that the case falls within Garland v. Wilkes-Barre, 212 Pa. 151; see also Burns v. Bradford City, 187 Pa. 361.
   Opinion by

Mr. Justice Stewart,

The accident to the plaintiff, complained of as the result of defendant’s negligence, happened in this wise. At an early hour in the morning, while it was yet dark, and darker than usual because of the fact that the street lighting had been temporarily interrupted, plaintiff in passing along the sidewalk encountered a sheet of ice that covered the entire pavement from house line to the curb, for a considerable distance. Plaintiff was walking upon the ice, about the middle of the way, when she stepped into a hole covered with a thin coating of ice — and for this reason unobserved by her — which extended through the body of the ice to the pavement beneath and was filled with water. The hole was just large enough to admit the foot; and into it she plunged with one limb up to her knee. The rest of her person was thrown back on the ice, and her injury resulted from this fall. The ice at this point was between two and three feet deep; and the hole as described by the plaintiff, was just a round little hole, like as if someone had cut it through.” To the question what was its diameter in inches, she replied: “I could not tell you that, I know it came up to my knee. My stocking was all wet nearly up to my knee.” When asked whether she had slipped, she said : My foot went right into the hole and it threw me of course on my back. I did not slip at all, just’went right into the hole.” In another part of her testimony she described the hole as just large large enough to admit her foot. The ice that covered the pavement was the accumulation of weeks if not months, the weather having been unusually and continuously severe. It had not prevented the public use of the pavement, and so far as we know no one was injured in consequence of it. Plaintiff herself had passed over it daily without accident, and had never observed the hole into which she stepped the morning of the accident. If negligence on the part of the defendant, in suffering so great an accumulation of ice to remain for so long a period on the pavement, be conceded, the question remains, was such negligence the proximate cause of the accident \ But for the accumulation of the ice the accident would not have happened. This, however,' does not bring the answer. Quite as much could be affirmed with respect to any condition antecedent, however remote, which was in the causative line. Responsibility for negligence does not extend to every consequence; it must have its limitations. The law in such cases looks at the near, not the remote. "Was there any intervening cause, distinct in itself, though related to and conditioned on what went before, to which the accident may be referred ? If so, defendant’s relation to such intervening cause is the matter to be adjudged ; by its responsibility for that, is its negligence to be determined. The immediate and direct cause of plaintiff’s accident was the hole in the ice. She did not slip on the ice, nor did she fall in consequence of any obstruction it presented. She fell because her foot and limb plunged into a narrow hole in the ice in the middle of the pavement. That this hole, covered as it was by a thick coating of ice, was a dangerous pitfall, cannot be gainsaid. Anyone stepping into it incautiously would most likely be injured just as the plaintiff was. Not so with respect to walking upon the ice itself. The continued use of the way by the public, with the ice upon it for months, and by the plaintiff herself, without injury, shows the marked difference between the two circumstances, and enables us to see how the hole may, and should be regarded as an independent and at the same time the proximate cause of plaintiff’s injury. If the hole was there by the defendant’s direct agency, negligence in leaving it uncovered would follow necessarily, and responsibility in connection therewith. But this is not pretended. If the effort be to derive responsibility by connecting it with the ice accumulation, such result can only be reached in case it is made to appear that pitfalls of this character are the probable and natural consequence of ice accumulation, and therefore to be anticipated. No one attempted to account for the existence of the hole into which plaintiff fell. That it was the work of the elements does not seem probable. Its size, location and character, and the fact that it was filled with water, whereas all about it was solid compact ice, would seem to indicate some other origin. If resulting from other than natural causes, negligence could not be imputed to the defendant from the mere fact that it was there. If from natural causes, experience and observation forbid that it should be regarded as anything less than extraordinary, so unusual that the defendant could not be charged with negligence in not foreseeing it. As was said in South Side Pass. Railway Company v. Trich, 117 Pa. 390, “ The utmost that can be said would be, that such a consequence might possibly happen. But things or results which are only possible, cannot be spoken of as either probable or natural. For the latter are those things or events which are likely to happen and which for that reason should be foreseen. Things which are possible may never happen, but those which are natural or probable are those which do happen, and happen with such frequency or regularity as to become a matter of definite inference. To impose such a standard of care as requires, in the ordinary affairs of life, precaution on the part of individuals against all the possibilities which may occur, is establishing a degree of responsibility quite beyond any legal, limitations which have yet been declared.” The'accumulation of ice being the proximate cause, and the defendant not being chargeable with negligence simply because of the existence of the hole, can its negligence be derived from other circumstances ? This question remains to be considered. Plaintiff, though she had passed ever this way daily, had never observed the opening in the ice. Two of her witnesses testify that they had seen such an opening in the immediate locality where the accident happened. Their testimony does not certainly and clearly identify the opening they saw with that which occasioned plaintiff’s fall ; that, however, would be a question for the jury. One saw a hole a week before the accident, and again three days before ; the other saw it once, about a week before. It is not pretended that the authorities had actual notice of the existence of the hole. According to plaintiff’s testimony it was a pitfall, concealed from her by a covering of ice. The testimony of all the witnesses was that the weather. was unusually severe, and so continuous that the ice on the pavement was constantly accumulating. Under such conditions, the opening would be likely to escape observation at most times except as searched for. Certainly it was not so obvious that an officer exercising reasonable supervision of the highway should have observed it; and this is the measure of defendant’s duty,' reasonable supervision, not actual search for defects: Duncan v. Philadelphia, 173 Pa. 550. Had it been an open and exposed danger, obvious to those charged with supervision had they exercised reasonable vigilance, notice to the defendant would have been imputed from the length of time it had been allowed to remain there ; but this element too is lacking in the case. The motion for nonsuit was properly allowed.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Foster, Appellant, v. American Bitumastic Enamel Company.

      Negligence — Independent contractor — Slipping on hardened enamel —Shipbuilding.

    In an action to recover damages for personal injuries it appeared that the defendant company had a contract with the employer of the plaintiff to coat with enamel certain portions of the interior of a large vessel, which was in process of construction. This enamel had to be applied hot, as it cooled and solidified very quickly after being applied. It was heated in a cauldron on the upper deck and lowered in galvanized buckets through an open hatchway. The workman in charge .usually carried two full buckets from the vat to the opening and put one down on the deck while he lowered the other. He testified that the buckets were not in the passageway, but right at the edge of the hatchway, just outside the line of the passageway. He also stated that the buckets were kept in as rapid motion as’possible to get them and their contents to the place of application before the enamel cooled. On the afternoon of the accident plaintiff found it necessary to leave his work and go ashore. He took two or three steps along the passageway, when he slipped and fell, and in the act of falling his arm was thrust into the bucket of hot enamel, injuring him seriously. He alleged that he slipped on a piece of enamel about as large as a saucer which had fallen on the surface of the deck and solidified. There was no evidence whatever to show how or by whom, the° enamel had been spilled on the deck, nor how long it had been there. 'Held, that the evidence was insufficient to sustain the charge of negligence against tho defendant.
    February 25, 1907:
    Argued Jan. 16, 1907.
    Appeal, No. 197, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 1,764, on judgment for defendant non obstante veredicto in case of James M. Foster, Jr., v. American Bitumastie Enamel Company.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    Verdict for plaintiff for $7,500. The court subsequently entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      S. Morris Wain, for appellant.
    The case was for the jury: Sturgis v. Kountz, 165 Pa. 358; Pittsburg v. Grier, 22 Pa. 54; Webster v. Coal & Coke Co., 201 Pa. 278; Conley v. Lincoln Foundry Co., 14 Pa. Superior Ct. 626; Alexander v. Steel Co., 189 Pa. 582; Booth v. Dorsey, 208 Pa. 276.

      John A. Ward, for appellee.
    There is no evidence of negligence in the case, and plaintiff was guilty of contributory negligence, and defendant’s acts are not the proximate cause of plaintiff’s injury: Hunter v. Wanamaker, 17 W. N. C. 232; Kelly v. Bennett, 132 Pa. 218; Seddon v. Bickley, 153 Pa. 271; Stackhouse v. Vendog, 166 Pa. 582; King v. Thompson, 87 Pa. 365; Wall v. Lit, 195 Pa. 375; Bernhardt v. West Penna. R. R. Co., 159 Pa. 360; Fearn v. Ferry Co., 143 Pa. 122; Green v. R. R., 14 Pa. Dist. Rep. 289; Stearns v. Spinning Co., 184 Pa. 519; Express Co. v. Wile, 64 Pa. 201; Hayman v. R. R. Co., 118 Pa. 508.
   Opinion by

Mr. Justice Potter,

The plaintiff in this case was a ship fitter in the employ of the New York Ship Building Company in South Camden. The defendant had a contract with the employer of the plaintiff to coat with enamel certain portions of the interior of a large vessel, which, was in process of construction. This enamel had to be applied hot, as it cooled and solidified very quickly after being applied. It was heated in a cauldron on the upper deck and lowered in galvanized buckets through an open hatchway. The workman in charge usually carried two full buckets from the vat to the opening and put one down on the deck while he lowered the other. lie testified that the buckets were not in th.e passageway, but right at the edge of the hatchway, just outside the line of the passageway. He also stated that the buckets were kept in as rapid motion as possible to get them and their contents to the place of application before the enamel cooled.

On the afternoon of October 15, 1902, the plaintiff found it necessary to leave his work and go ashore. He took two or three steps along the passagewajq when he slipped and fell, and in the act of falling his arm was thrust into the bucket of hot bitumastic enamel, injuring it very seriously. He alleged that he slipped on a piece of enamel about as large as a saucer which had fallen on the surface of the deck and solidified. The negligence charged against the defendant was the spilling of this enamel on the floor, and also in leaving a bucket of hot enamel standing near the opening in the passageway. There was no evidence whatever to show how or by whom the enamel had been spilled on the deck, nor how long it had been there. The jury found a verdict for the plaintiff, but the trial judge entered judgment for the defendant non obstante veredicto.

The accident happened upon an unfinished vessel, in which both the plaintiff and. defendant were at work at the same time, but engaged in entirely different lines. According to the testimony of the plaintiff, the immediate cause of the accident was the presence of the piece of hardened enamel, the size of a saucer, which he alleges was on the surface of the deck, at the time he fell. But as the material hardened very quickly, it may have been dropped there a very short time before. There is nothing in the evidence to show that it was seen by anyone else than plaintiff, or that it had been there long enough for the defendant company, or any of its employees, to know of its existence. It would be going entirely too far to hold the defendant liable for the results of an accidental spilling of material which it was in the very act of handling, by experienced employees, and during the course of its conveyance from the heating cauldron to the place of its application; especially would this be true if the spilling occurred but a short time before the accident. From the very nature of the case, more or less of disorder must have prevailed at the place in question, at that time. It could not be expected that the decks of a vessel in course of construction would be absolutely free from litter and rubbish and bits df waste material. • The testimony showed that blocks of wood and pieces of metal were often left lying on the deck, if the plaintiff had stumbled over any of these things, it would hardly be suggested that a claim for recovery could be sustained. The fact that in falling he involuntarily thrust his hand into the bucket of hot enamel, added terribly to the extent of the injury, but it had nothing whatever to do with the initial cause of his slip or fall. It was the unfortunate result of the fall, and not its cause.

In the opinion of the court below, the statement is made that the bucket of enamel could not have been standing where it was left, near the hatchway, more than three or four minutes because there was evidence that the material hardened within that time. One witness did so testify. But other witnesses, in testifying to the rapidity with which the material hardened, said that it became solid within three or four minutes after it had been applied to the steel with a brush. It is very probable that the material would remain soft for a longer time when kept in larger quantity in the bucket. But ■we can find nothing in the evidence to show that the bucket was improperly placed, or that it was left near the hatchway any longer than was necessary. As to the spot of enamel alleged to have been on the surface of the deck, we agree with the court below that mere proof of its existence, without showing how it got there, or how long it had been there previous to the accident, was not, under the circumstances, sufficient to sustain the charge of negligence against the defendant.

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


text:
    Lindsay v. Dutton, Appellant.
    February 25, 1907:

      Promissory notes — Affidavit of defense — Practice, C. P. — Discontinuance.

    In an action upon a promissory note an averment in the affidavit of defense that the payee had brought a former suit on the note, and that it was discontinued without the defendant’s knowledge or consent, is no defense. If the discontinuance was improperly or illegally entered the defendant should have applied to the court to strike it off.
    In a suit on a promissory note an allegation in the affidavit of defense that the indorsement was after maturity with full notice of the maker’s defense, will only avail the defendant so far as he may have a defense against the payee.
    In such an affidavit an averment that the defendant believes that the collateral was of sufficient value to more than pay the note in suit, is insufficient, and this is especially so where it appears that the collateral was disposed of by the holder of the note strictly in accordance with the terms of the instrument itself.
    Argued Jan. 17, 1907.
    Appeal, No. 168, Jan. T., 1906, by-defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1905, No. 4,132, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Daniel S. Lindsay v. Lewis G-. Dutton.
    Before Mitchell,' C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Keversed.
    Assumpsit on a promissory note.
    The opinion of the Supreme Court states tbe case.

      Error assigned was the order of the court.

      William 8. Divine, for appellant.

      John Eeksteim, Beatty, for appellee.
   Opinion by

Mr. Justice Mestrezat,

This is an action by an indorsee against the maker of a negotiable collateral promissory note for $1,525, dated September 9, 1903, made by the defendant and payable September 17, 1903, to the order of Charles S, Warner, who indorsed and delivered it after maturity to the plaintiff. By the note it appears that the maker delivered to the payee certain bonds and stocks as collateral security for its payment at maturity, and authorized the holder of the note to sell the collateral at public or private sale at any time or times thereafter without any further notice to the maker.

The defendant filed an affidavit of defense which was declared insufficient by the court below, and judgment was entered in favor of the plaintiff and against the defendant for the full amount of the note and interest. The defendant alleges the court erred in entering judgment against him, and has taken this appeal.

The statement avers that the payee, “for valuable consideration, endorsed and delivered said note with collateral, to plaintiff.” The plaintiff concetles that the note was transferred to him after maturity, and admits that the defendant is entitled in this suit to any defense he might have against the original payee. There is little clearness or precision about the affidavit of defense. In drawing it, the defendant seems to have ignored the well-established rules requiring precision and definite averments in affidavits of defense. It sets up no sufficient defense except the payment of $250 which, it is averred, was paid on the note in suit. To that extent we think the affidavit is sufficient.

The averment in the affidavit that the payee had brought a former suit on the note and that it was discontinued without the defendant’s knowledge or consent, is no defense in this action. If the discontinuance was improperly or illegally entered the defendant should have applied to the court to strike it off. So long as the record of that case shows that the suit has been discontinued, we must in this action, treat it as having been regularly and legally done. The action of the court in permitting that case to be discontinued by the plaintiff cannot be reviewed by this court on this appeal.

The allegation in the affidavit of defense that the indorsement was after maturity with full notice of the maker’s defense will only avail the defendant so far as he may have a defense against the payee. As wo have already seen, the plaintiff admits that the indorsement and transfer t® him was after the maturity of the note. The defendant, therefore, can set up in this action any defense he may have against the payee. It is immaterial, however, in this case, as between the plaintiff and the defendant, whether the note was transferred before maturity and for value, unless the defendant has, and sufficiently avers in his affidavit, a sufficient defense against the payee.

There is no merit in the averment as a defense in this action that the defendant believes that the collateral was of sufficient value to more than pay the note in suit. The defendant admits that it was not readily marketable. In addition to that admission, the terms of the note show that the holder was authorized to sell the collateral at public or private sale. The statement avers that the plaintiff gave defendant written notice that the collateral would be sold at public sale at a certain time and place, that the defendant was present in person at the sale, and that the collateral was then ánd there sold for a nominal consideration. These facts are not denied in the affidavit of defense. It, therefore, appears that the collateral was disposed of by the holder of the note strictly in accordance with the terms of the instrument itself.

There is a distinct averment in the affidavit of defense that there was paid on account of the note in suit at the time it was given, or shortly thereafter, the sum of $250. To this extent we think the affidavit is sufficient. As to the other matters set up in the affidavit, they disclose no reason why the plaintiff should not have judgment for the amount of the claim. The court below, therefore, should have entered judgment for the plaintiff for the amount of the note, less $250 as of the date it is alleged to have been paid, with leave to the plaintiff to proceed for the recovery of the balance which he claims to be due and unpaid.

The judgment of the court below is reversed with instructions to enter judgment in conformity with this opinion.


text:
    Chestnut Street Trust & Saving Fund Company’s Assigned Estate.

      Assignment for creditors — Rights of creditors — Principal and surety— Guardian and ward.

    The rights of creditors of an assigned estate are fixed at the date of the assignment. Only those who are creditors of the assignor at that date are entitled to participate in the distribution of the proceeds of the estate. A creditor is one who had a definite demand against the estate, or a cause of action capable of adjustment and liquidation upon a trial. Debts due in prcesenti and payable in futuro are claims against the assignor, for which his estate is liable in the hands of his assignee. So also are damages resulting from the breach of a contract occurring prior to the assignment.
    Generally any claim against the assignor which is certain or may be reduced to certainty at the date of the assignment is a debt payable out of the assigned estate, but a claim arising after the date of the assignment will not be allowed to participate in the distribution, nor will the possibility of a claim, depending upon the happening of a contingency in the future, constitute a demand for which the assigned estate is liable. The holders of such claims are not creditors entitled to payment out of the estate of an insolvent assignor.
    Where a trust company makes an assignment for the benefit of creditors, and delivers to its assignee all of its general assets, but retains and continues to administer its trust funds, and thereafter certain funds held by it as surety for a guardian are stolen by one of the officers of the company, the ward cannot participate as a general creditor in the distribution of the fund in the hands of the assignee for the benefit of creditors, inasmuch as no liability had accrued in favor of the ward at the date of the assignment for tho benefit of creditors.
    Argued January 10, 1907.
    Appeal, No. 184, Jan. T., 1906, by Louisa T. Cochran, from order of O. P. No. 2, Phila. Co., Dec. T., 1897, No. 430, dismissing exceptions to auditor’s report in Assigned Estate of the Chestnut Street Trust & Saving Fund Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of auditor.
    The facts are stated in the opinion of the Supreme Court.

      February 25, 1907:

      Error assigned was in dismissing exceptions to report of auditor.

      Edmund Randall, with him James A. Flaherty, for appellant.
    To hold a corporation, chartered' for the purpose and making a business of entering security bonds in the courts of this commonwealth, able to discharge its estate from liability by a voluntary assignment for the benefit of creditors, is contrary to public policy.
    The bond of the surety company having been accepted by the orphans’ court upon the faith of its assets, they were hypothecated for its payment, and it was an equitable lien upon them. Such contingent claims are payable : White v. Com., 39 Pa. 176; Dickinson v. Callahan, 19 Pa. 231; Voetter’s Est., 7 Dist. Reps. 230; Oyster v. Short, 177 Pa. 601.
    No argument offered nor printed brief filed for appellee.
   Opinion by

Mr. Justice Mestrezat,

The learned auditor has found and stated the facts of the case, and we think they sustain his conclusion. We recognize the importance of the principle involved and the hardship to the claimant if unsuccessful, as suggested by appellant’s counsel, but if the principle ruling the case is settled law, as we think it is, we cannot disregard it and permit “ a hard case to make bad law.” If in such cases, cestui que trustent should have better protection from trust companies which are permitted to become sureties on the bonds of their trustees, the remedy is with the legislature. The judicial department of the government cannot usurp the functions of the legislature, and by construction do that which lies exclusively within the province of that department of the government. This is sometimes urged by counsel in the interest of their clients, and also occasionally attempted by courts.

The single question presented for our consideration is the right of the appellant to participate in the distribution of the assigned estate as a creditor by reason of the liability which the trust company incurred as surety on the bond of the appellant’s guardian who failed to account for the funds of her wai'd. The assignment of error raises but this one question. Whether the appellant has another remedy in this or another forum, and whether the trust company and its assigned estate can be held as agent or trustee for the funds placed in its hands and are now unaccounted for are questions which are not raised on this record, and with which we are not now concerned. This claim, as presented in the court below and here, is upon the trust company’s bond as surety for the guardian, and is against the company’s insolvent estate for a pro rata share of the amount which the guardian failed to pay her ward. That there can be no recovery on the bond, we think is clear.

The bond given by the guardian and the trust company as surety was approved on December 7, 1889, and was conditioned for the faithful performance of the duties of the guardian. The securities of the ward were delivered by the guardian to the trust company which entered them, in its book in which it entered properly held by it in a fiduciary capacity. The trust company made an assignment for the benefit of its creditors on December 24, 1897. Subsequently, in March, 1901, the treasurer of the trust company fraudulently disposed of the securities for his own use. At the date of the assignment, therefore, there had been no breach of the bond given by the trust company as surety of the guardian. The securities were then intact and could have been recovered from the company at that time or at any time prior to March, 1901, when they Avere fraudulently appropriated by its treasurer. Hence, there was no breach of, or liability on, the bond of the surety for more than three years after the assignment of the trust company for the benefit of its creditors. This being true, the appellant had no claim against the company on the bond at the date of the assignment and, therefore, is not entitled to share in the distribution of the proceeds of the assignor’s estate.

The rights of creditors of an assigned estate, are fixed at the date of the assignment. Only those who are creditors of the assignor at that date are entitled to participate in the distribution of the proceeds of the estate. A creditor is one who has a definite demand against the estate, or a cause of action capable of adjustment and liquidation upon a trial : Reading Iron Works, 150 Pa. 369. Debts due in praesenti and payable in futuro are, of course, claims against the assignor for which his estate is liable in the hands of his assignee. So also are damages resulting from the breach of a contract occurring prior to the assignment. And, generally, any claim or demand against the assignor which is certain, or may be reduced to certainty at the date of the assignment, is a debt payable out of the assigned estate. On the other hand, a claim against the assignor arising after the date of the assignment will not be allowed to participate in the distribution of his estate. And it may be added that the possibility of a claim, depending upon the happening of a contingency in the future, will not constitute a demand for which the assigned estate is liable. The holders of such claims are not creditors entitled to payment out of the estate of an insolvent assignor.

Applying these principles to the case in hand, it is manifest that the appellant has no claim on the funds in the hands of the assignees of the trust company. At the date of the assignment the condition of the assignor’s bond had not been broken, and the appellant had no claim which she could have successfully asserted against the assignor. Hence, if she had brought an action against the trust company on that date, she would have been nonsuited because she had no claim or demand, and hence no cause for which an action would lie on the bond. The fact that at some túne in the future she might have a claim arising out of the breach of the bond would not support an action nor give her a demand against the obligor’s insolvent estate in the hands of its assignees. A conditional bond, such as the one in question, does not create an indebtedness absolutely payable in the future, but is an obligation which becomes an indebtedness on the happening of a contingency, and, until the contingency occurs, there is no claim or demand which can be enforced against the assignor or his estate. It is apparent, therefore, that under the facts of this case the appellant had no claim against the assignor company at the time of its assignment, and hence can have no claim against the assets which the company assigned for the benefit of its creditors. She is now asserting her right to participate in the fund for distribution as a creditor of the trust company, and her rights are those only of a creditor. As such, she must look for payment to the assignor company and not to its estate, which passed from it to the company’s creditors before it became her debtor.

The doctrine announced in Jones v. Cooper (Vt.), 16 Am. Dec. 678, is in harmony with our conclusion in this case. That was a claim against an insolvent intestate’s estate arising on a bond of indemnity given by the deceased to secure the claimant against liability on a bond, on which he was surety for the deceased as guardian. The administrator denied the right of the claimant to participate in the distribution of the insolvent’s estate of his decedent because there had been no breach of the guardian’s bond. In sustaining this position, and in discussing what demands may be proved against an insolvent estate, the court said (p. 680): “ Where there is no subsisting debt or duty, or where the claim, if payable or to be satisfied at a future day, rests in contingency, and it is uncertain whether or not any demand will accrue, it cannot be allowed. There must be a present debt or duty, or a demand in prsesenti, payable or to be satisfied at all events in futuro. ... In cases of insolvent estates, where there is no present duty, and it depends on some future event whether or not a demand will arise, it is obvious that no claim exists which can be proved before the commissioners. . . . The claim must be one which is capable of being liquidated and valued. A contract for the payment of a certain stated sum, or the delivery of certain articles of property, or for the performance of specific acts or services, if to be performed at all events, though at a subsequent time, may be the subject of valuation; but where the performance of the contract depends on a contingency Avhich may never happen, it is evident that it cannot be valued. As the bond declared upon in this case is not for the payment of a sum certain, or the performance of an act at all events, so as to raise a present debt or duty, but is conditional, depending on a contingency, it follows that there must at least be a breach of the condition and a consequent forfeiture of the bond to give the appellant a demand against the estate of the intestate.”

We have examined the cases cited by appellant and none of them rule this case in her favor. Where the claim was allowed in any of them it was capable of liquidation at the date of the assignment.

The assignees are not responsible to the appellant as bailees of her securities, for the reason that they had no right to the possession of the securities, and in fact never had possession of them. The trust company acquired, possession of the securities and held them as it held other property in a fiduciary capacity, and when it assigned its own assets for the benefit of creditors these securities were not included, and did not pass to the assignees. The assignment did not dissolve the trust company: Germantown Pass. Ry. Co. v. Fitler, 60 Pa. 124, and it continued business to the extent of winding up its fiduciary business. It held these securities until they were stolen by its treasurer in March, 1901. If the appellant could trace the securities to the assignees it would raise another and different question than the one raised on this appeal.

The assignment of error is overruled and the decree is affirmed.


author: Mr. Justice Fell,

text:
    Henson, Appellant, v. Arthur.

      Negligence — Contributory negligence — Walking into side of wagon —Nonsuit.

    Where the driver of a wagon has a clear street and an unobstructed view, he cannot be charged with negligence in approaching a crossing of a side street at an ordinary trot with a horse under such control that he can be stopped within six or eight feet.
    In an action against the owner of a wagon to recover damages for personal injuries, a judgment of nonsuit is properly entered, where the only conclusion possible from the testimony is that the plaintiff walked against the side of the defendant’s wagon when the driver’s attention was directed to the travel in front of him on a cross street.
    Argued Jan. 25, 1907.
    Appeal, No. 275, Jan. T., 1906, by plaintiffs, from order of C. P. No. 1, Phila. Co., March T., 1906, No. 473, refusing to take off nonsuit in case of Wilmer Y. Henson and LeRoi Henson, by his father and next friend, Wilmer Y. Henson, v. Joseph W. Arthur, trading as Arthur Milk Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      February 25, 1907:
    Trespass to recover damages for personal injuries. Before Bjcitlee, J.
    The opinion of the Supreme Court states the facts of the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Meredith Hanna, for appellants.
    The evidence of negligence on the part of the defendant’s employee was fully sufficient to go to the jury : Foote v. American Product Co., 195 Pa. 190; Simmons v. Penna. R. R. Co., 199 Pa. 232; Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147.
    The court erred in deciding as a matter of law that plaintiff was guilty of contributory negligence: Kelly v. Traction Co., 204 Pa. 623; Strawbridge v. Bradford, 128 Pa. 200.

      George L. Crawford, of Crawford & Loughlin, for appellee.
    There was no negligence in the driver, as- the plaintiff ran from behind the car after the driver and his horse and half of the wagon had passed the plaintiff, and the driver, properly looking ahead, of coarse did not see him until he struck the step : Hoffman v. Transit Co., 214 Pa. 87; Keller v. P. & R. R. R. Co., 214 Pa. 82; Wiszginda v. Traction Co., 212 Pa. 360; Moss v. Traction Co., 180 Pa. 389; Funk v. Traction Co., 175 Pa. 559; Fleischman v. R. R. Co., 174 Pa. 510.
    As to the fact that the wagon was upon the west side of the street going north, there was no negligence : Elliott v. Allegheny County Light Co., 204 Pa. 568; Willis v. Armstrong County, 183 Pa. 184; Gaughan v. Phila., 119 Pa. 503; Shaffer v. Roesch, 215 Pa. 287.
   Opinion by

Mr. Justice Fell,

The plaintiff, a boy thirteen years and six months old, was injured under these circumstances. With a companion of his own age he was walking west on the south side of Columbia avenue. When he reached the east side of Seventeenth street, a car was standing at the crossing. He waited on the sidewalk until it started south, and then walked across Seventeenth street to the west side of the car track, where he was struck by the side step of the defendant’s wagon. The wagon was a milk wagon with side doors and steps between the front and hind wheels, which projected slightly beyond the line of the wheels. It was moving north on the west side of the street, between the car track and the west curb. The speed of the horse was described by one of the plaintiff’s witnesses in his examination in chief as a “ fast trot,” and on his cross-examination as an “ ordinary trot,” and by another of his witnesses as “ just a trot.” The wagon was stopped within six or eight feet of the point of collision. The car was twenty-five feet from the crossing when the boy passed behind it, and there was nothing on the street to obstruct his view or that of the driver.

It is contended that there was negligence on the part of the driver in approaching a crossing at undue speed and in driving on the left side of the street. There would be force in these contentions if the plaintiff had been on the crossing in front of the horse, but as he was in a position of safety when the horse and front wheels of the wagon passed in front of him, there is none. ’With a clear street and an unobstructed view, it cannot be said to be negligent to approach a crossing at an ordinary trot with a horse under such control that he can be stopped within six or eight feet. The driver was on the left side of the street because that was the only side open to him. He had stopped on that side near the middle of the block to deliver milk, a wagon was standing farther north on the opposite side between the curb and the car track, and until the car was met and passed he had no opportunity to cross over. He was lawfully where he was and the “ rule of the road ” had no application except as between him and other drivers whose rights to that side of the street were superior to his; with them he took the chance of collision: Foote v. American Product Co., 195 Pa. 190.

The only conclusion possible from the testimony is that the plaintiff walked against the side of the defendant’s wagon when the driver’s attention was directed to the travel in front of him on the cross street. The judgment of nonsuit is affirmed.


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    Meyers v. Philadelphia, Appellant.

      Negligence — Municipalities—Obstruction in street — Property owner —Independent contractors.

    Property owners engaged in work on a city or borough street in front of their properties in obedience to the requirements of an ordinance are not contractors exercising an independent employment, over whom the municipal authorities have no control.
    A municipality may not be responsible for the negligence of an owner of property engaged in work on a street done on notice from it, where the negligence is in the manner of doing the work on the part of the street necessarily occupied for that purpose, but its duty to exercise reasonable supervision of streets thrown open for travel always continues.
    Where a city notifies a property owner to reset a curb and the owner enters into a contract with a curb-setter to do the work at a fixed price per foot, and the latter on finishing the work leaves a pile of old curbstones on the cartway, and these stones are allowed to remain in the street for four or five days when their presence causes the overturning of a cab, and the injury of its driver, the latter may maintain an action against the city to recover damages for his injuries.
    Argued Jan. 23, 1907.
    Appeal, No. 191, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1905, No. 3,107, on verdict for plaintiff in case of Charles G. Meyers v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $10,000 on which judgment was entered for $d,000, all above that amount having been remitted.

      Error assigned was in submitting the case to the jury, and refusing defendant’s motion for judgment non obstante veredicto.

      February 25, 1907:

      Robert Brannan, assistant city solicitor, with him Francis M. McAdams and John L. Kinsey, city solicitor, for appellant.
    A curb-setter under contract with a private property owner to reset a curb, is an independent contractor so far as the municipality is concerned: Painter v. The Mayor, etc., of Pittsburg, 46 Pa. 213; Smith v. Simmons, 103 Pa. 32; Boro, of Susquehanna Depot v. Simmons, 112 Pa. 384; Wray v. Evans, 80 Pa. 102; Erie v. Caulkins, 85 Pa. 247; Reed v. Allegheny, 79 Pa. 300; Allen v. Willard, 57 Pa. 374; Heidenwag v. Phila., 168 Pa. 72; Levenite v. Lancaster, 215 Pa. 576.
    The case of Eby v. Lebanon County, 166 Pa. 632, seems to be on all fours with the case at bar except that there the county commissioners entered into a contract, while here a property owner made the contract.

      Fred Taylor Pusey, for appellee, cited:
    Trego v. Honeybrook Borough, 160 Pa. 76; Koch v. Williamsport, 195 Pa. 488; Davis v. Corry City, 154 Pa. 598; Hookey v. Oakdale Borough, 5 Pa. Superior Ct. 404.
   Opinion by

Mr. Justice Fell,

The city of Philadelphia gave notice to the Monument Cemetery Company to reset the curb on the part of Fifteenth street, about two squares in length, which passes through its grounds. The cemetery company entered into a contract with a curb-setter, who agreed to do the work at a fixed price per foot. He left a pile of old curbstones that were unfit for use on the asphalt pavement between the new curb and the car track. This pile was one foot high and extended into the street two feet from the curb, and on the night of the accident there was no light near it to give notice to persons driving on the street. The plaintiff was the driver of a hansom and ran into the pile of stones at midnight. His cab was overturned and he was injured. The stones had been in the street four or five days before the accident and there was evidence tending to show that the work at this place had been completed for that length of time.

The city seeks to relieve itself of liability on the ground that a municipal corporation is not responsible for an injury caused by the negligence of an independent contractor. But this principle has no application to the case. Property owners engaged, in 'work on a city or borough street in front of their properties in obedience to the requirements of an ordinance are not contractors exercising an independent employment, over whom the municipal authorities have no control: Trego v. Honey brook Borough, 160 Pa. 76. A municipality may not be responsible for the negligence of an owner of property engaged in work on a street done on notice from it, where the negligence is in the manner of doing the work on the part of the street necessarily occupied for that purpose, but its duty to exercise reasonable supervision of streets thrown open for travel always continues. The placing of the rejected curbstones in the street was not a part of the work of resetting the curb, but the unauthorized use of the street as a place of storage for material that should' have been placed elsewhere or at once removed. It was allowed to remain there, a menace to travel, during the progress of the work and after its completion and the question of constructive notice to the city was for the jury.

The judgment is affirmed.


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    Widger, Appellant, v. Philadelphia.

      Negligence — Municipalities — Bridge — In]ant — Intervening act o] stranger — Nonsuit.
    No damages can be recovered from a city by a boy seven years old for personal injuries sustained on a bridge, where it appears that tlie bridge in question was a drawbridge; that the approaches to it were guarded by gates, which were closed by means of cogwheels when the draw was open; that at the time of the accident the gates were closed and the boy had climbed upon a girder of the bridge, and was looking over into the stream with his hands on the cogs; and that a stranger, when the bridge tender was engaged in closing and fastening the draw, unbarred one of the gates and pulled it partly open, thus moving the cogs and injuring the boy’s hand.
    Argued Jan. 25, 1907.
    Appeal, No. 171, Jan. T., 1906, by plaintiffs, from order of C. P. No. 5, Pkila. Co., March T., 1902, No. 2,076, refusing to take off nonsuit in case of Andrew Widger by his father and next friend, Samuel Widger, v. City of Philadelphia.
    February 25, 1907:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy. Before Martin, P. J.
    The facts appear in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit. -

      David Zavis, Charles Knittel and J. Fletcher Budd, for appellant.
    The nonsuit was improperly entered : Enright v. B. R. Co., 198 Pa. 166; Hydraulic Works Co. v. Orr, 83 Pa. 332; Childs v. Crawford County, 176 Pa. 139; Finnegan v. Foster Township, 163 Pa. 135; Corbin v. Philadelphia, 195 Pa. 461; Gibney v. State of New York, 137 N. Y. 1 (33 N. E. Repr. 142); Peyton v. Ry. Co., 41 La. Ann. 861 (6 So. Repr. 690); Donahoe v. Wabash, etc., Ry. Co., 83 Mo. 560; Maryland Steel Co. v. Marney, 88 Md. 482 (42 Atl. Repr. 60).

      Thomas Baeburn White, assistant city solicitor, and John Z. Kinsey, city solicitor, for appellee.
    This case is identical in principle with the case of. Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321.
    The proximate cause of the accident was the act of a stranger: Fredericks v. Northern Cent. R. R. Co., 157 Pa. 103.
   Opinion by

Mr. Justice Fell,

The city of Philadelphia maintains a drawbridge on the line of a street, which crosses a stream navigable by small vessels. Near the entrance to the bridge there are gates over the cartway and over the footways, which are kept closed while the draw is open. These gates are so connected by cogwheels that they open and close at the same time, the force applied to move either being'transmitted to the other. The cogwheels are four or five feet from the ground and about twenty inches in diameter. The plaintiff, a boy under seven years of age, climbed on a girder of the bridge while the draw was open to see boats go through and placed his hand on the cogwheels, which were directly over the girder on which he was standing. The bridge tender had closed the gates and fastened them by means of a heavy iron latch or bar, before opening the draw. After he had closed the draw and was engaged in driving wedges which fastened it in place, a stranger unbarred the gate over the cartway and pulled it partly open, thus moving the cogs and injuring the plaintiff’s hand. On this state of facts a nonsuit was entered.

The city owed to the plaintiff the duty not wantonly to expose him to danger, but it ivas under no duty to protect him from a danger not to be anticipated, which could not have resulted from the ordinary and lawful use of the bridge, nor to maintain its structures in such a w&y as to prevent the possibility of an accident to a child. The exposed cogwheels were not in themselves dangerous, and no one in the proper use of the bridge could be injured by them. The case cannot be distinguished in principle from that of Oil City, etc., Bridge Co. v. Jackson, 114 Pa. 321, in which a child of seven years of age in crossing a bridge walked on a large gas pipe located at the side of the footway, and slipped and fell through an opening in the bridge.

Moreover, the proximate cause of the accident was the intervening and wrongful act of a stranger, for which the city was in no way responsible.

The judgment is affirmed.