author: Me. Justice Stewart, Mestrezat and Potter, JJ.:

text:
    Kramph’s Estate.

      Wills — Charitable bequests — Variation of terms — Equity—Church law.

    1. Under the general jurisdiction of a court of equity to administer a charity, it has power to vary the precise terms of the charitable bequest so far as is necessary to carry out the general charitable intent.
    2. The requirements of a will providing for the establishment of a University of the New Jerusalem, to be founded in the consolidated city of Philadelphia, to teach, and to train New Church ministers in, the doctrine of the New Jerusalem, as laid down in the writings of Swedenborg, are fulfilled by the establishment of an institution with buildings located in the immediate vicinity although not within the corporate limits of Philadelphia, the teachings of which are based on the writings of Swedenborg; and it is immaterial that such institution was founded by a sect of Swedenborgians not in existence at the time of testator’s death, inasmuch as the gift was not to a denominational church, or to any subordinate body of such church.

      Wills — Charitable■ bequests — Religious institutions — Doctrine—Public policy.

      ■ 3. Although the writings upon which the doctrines of a religious institution are based may be susceptible of a construction which would make them obnoxious to certain common standards of morality, a bequest to such an institution will not be defeated as against public policy where it does not appear that such writings constitute any part of the religious doctrines of the church, at least not with that interpretation put on them which would make them offend.
    Argued Oct. 25, 1909.
    Appeals, Nos. 112 and 133, January T., 1909, from decree of O. C. Lancaster County, April T., 1903, No. 104, dismissing exceptions to adjudication in Estate of Frederick J. Kramph, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication. Before Smith, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned in each appeal was decree of the court dismissing exceptions to the adjudication.

      A. S. Weill, and W. U. Hensel, for the Academy of the New Church, appellant.
    The only test of “perniciousness” of religious teachings or their “derogation of statutes” is whether they teach resistance, antagonism or opposition to the civil law and produce or tend to produce violations of it. It is what men do, not what they think, that the law reaches: Manners v. Library Co., 93 Pa. 165; Holbrook’s Est., 213 Pa. 93; Spring’s Est., 216 Pa. 529; Updegraph v. Com., 11 S. & R. 394; Vidal v. Girard’s Executors, 43 U. S. 127; Miller v. Gable, 2 Denio, 492; Knight’s Est., 159 Pa. 500; Jones v. Watford, 62 N. J. Eq. 339 (50 Atl. Repr. 180), aff’d in 64 N. J. Eq. 785 (53 Atl. Repr. 397); Thornton v. Howe, 31 Beavan, 14; Reg. v. Hicklin, L. R. 3 Q. B. 360; George v. Braddock, 45 N. J. Eq. 757 (18 Atl. Repr. 881); Reynolds v. U. S., 98 U. S. 145; Pare v. Clegg, 29 Beavan. 589; U. S. v. Freight Association, 58 Fed. Repr. 58; Besant v. Wood, L. R. 12 Ch. Div. 605.
    July 1, 1910:
    The fact that the academy is located just outside the city does not constitute a valid objection to its claim: Old Ladies’ Home v. Hoffman, 117 Iowa, 716 (89 N. W. Repr. 1066); Zanesville Canal & Mfg. Co. v. City of Zanesville, 20 Ohio, 483.
    The devise or bequest was not given to an institution which was to be identified with the General Convention: Presbyterian Congregation v. Johnston, 1 W. & S. 9; Schnorr’s App., 67 Pa. 138; Ehrenfeldt’s App., 101 Pa. 186; Trustees, etc., v. St. Michael’s Evangelical Church, 48 Pa. 20; Miller v. Gable, 2 Denio, 492; Greek Catholic Church v. Orthodox Greek Church, 195 Pa. 425.

      John G. Johnson, with him John A. Coyle, for trustees, appellants.
    The Academy of the New Church is controlled by and is the Institution of the General Church of the New Jerusalem, a schismatic body of New Churchmen, not connected with the General Convention, nor in existence at the time of Kramph’s death and its claim should, therefore, be rejected: App v. Lutheran Congregation, 6 Pa. 201; Bose v. Christ, 193 Pa. 13; Greek Catholic Church v. Orthodox Greek Church, 195 Pa. 425; McAuley’s App., 77 Pa. 397; Landis’s App., 102 Pa. 467; Schnorr’s App., 67 Pa. 138; Watson v. Jones, 80 U. S. 679; Krecker v. Shirey, 163 Pa. 534; Roshi’s App., 69 Pa. 462.

      Charles G. Baker with him T. Roberts Appel, for heirs of Frederick J. Kramph, deceased.
   Opinion by

Me. Justice Stewart,

These appeals are from a final adjudication by the orphans’ court of Lancaster county distributing the estate of Frederick J. Kramph, who died more than fifty years ago, testate. By his will, the testator, after making provision for his widow and children, and making certain other bequests, gave the net balance of his whole estate to seven trustees, naming them, and their successors, “in trust, for the purpose of endowing a university of the New Jerusalem, to be founded in the consolidated city of Philadelphia, for universal New Church education in these United States, and for the education of New Church ministers, who are to teach the doctrine of the New Jerusalem, as laid down in the writings of the Honorable' Emanuel Swedenborg — said New Church University to be under the care and superintendence of a body of trustees rendered corporate by a perpetual charter legally obtained.” The net balance of the estate as now ascertained is $38,785. In the distribution proceeding in the court below, certain of the heirs at law of the testator appeared, and claimed the funds on the ground that the system of conduct and morals as professed by Swedenborg and as taught in his writings, is repugnant to the law of the land, and that a bequest to endow an institution for the inculcation of such doctrine is void as offending against established public policy. This view prevailed with the auditing judge, and the fund was awarded to the heirs at law. From this adjudication two appeals were taken: one by certain persons claiming to be the regularly appointed successors to the trustees named in the will; the other by The Academy of the New Church, an incorporated institution of learning, claiming that it conformed to the description of the university contemplated by the testator, and that it is therefore the proper and only object of the testator’s bounty. These appeals were twice heard. Following the first hearing, this order was made by the court, “June 22, 1909. The judges who heard this case are unanimously of the opinion that the decree must be reversed. It cannot be sustained on any ground whatever. But we are not entirely agreed as to which of the parties claiming as legatees comes most clearly within the expressed intent of the testator. This question is, therefore, ordered to be reargued on behalf of these claimants, at Pittsburgh, in the first week of October.” This order, sustaining the bequest, eliminated the heirs at law from the controversy. The ground on which our united concurrence in rejecting the conclusions reached by the learned judge of the orphans’ court rested, was, that while there are writings of Emanuel Swedenborg which may be susceptible of a construction which would make them obnoxious to certain of our common standards of morality, yet it does not appear that such writings constitute any part of the religious doctrines of the New Jerusalem Church, at least not with that interpretation put on them which would make them offend. Upon this branch of the case we need not enlarge further. We are now therefore concerned only with the dispute between those claiming as trustees under the will, and The Academy of the New Church. We have above quoted from the will the devise proper. This follows: “All moneys which may accumulate or come in, shall be immediately invested in real estate or perpetual ground rents, all the incomes of which are to remain the unalienable property of the said New Church University, and be appropriated for the purposes set forth in the charter. Provided, that my aforementioned trustees shall not transfer any part of the income of my property designated for the benefit of the said New Church University, until sufficient funds are provided, either by subscription or endowments of other contributors, or by the accumulation of this bequest, to yield, independently of the cost of the university buildings, a clear annual income of four thousand dollars. And, provided further, that whenever a perpetual charter for the establishment of such a New Church University shall be obtained, the above mentioned trustees, or if prior to the final settlement, other trustees should have been appointed by charter, my executors shall transfer all the rights and trusts given to them by this, my last will and testament, to the trustees then and in that case lawfully appointed and constituted in and by said charter.”

Manifestly, the ultimate end the testator had in view was the establishment of an institution for universal New'Church education. This he expected to accomplish in one of two ways: either by encouraging the establishment of such an institution by others of like faith and zeal with himself, by providing a permanent fund to the extent of the net balance of his estate, for the support and maintenance of such institution by them established, and as an inducement to effort on their part; or, failing in this, by withholding his bounty until, with its accumulation, it would itself be adequate in amount for the purpose. This much is made manifest by the provision that no part of the income of the particular "property designated for the benefit of the said New Church University,” shall be transferred "until sufficient funds are provided, either by subscription or endowments of other contributors, or by the accumulation of this bequest, to yield independently of the cost of the university building, a clear annual income of Four thousand dollars.” It was only in the latter event that active duty was imposed on the trustees in connection with the founding and establishing of the university. This appears from the provision directing that payment be made by the executors whenever a perpetual charter for the establishment of such a university shall be obtained (by) the above-named trustees; or if prior to the final settlement other trustees shall have been appointed by charter, in such case to pay' over to the trustees then and in that case lawfully appointed and constituted in and by the charter. We think it apparent that the word “by ” as we have here introduced it was unintentionally omitted from the original will. Its use is necessary to make a provision entirely intelligible which without it would be unmeaning. The testator was here providing for a situation which, if it happened, would leave the trustees virtually without any functions whatever to discharge. As we read the will the question then presented is, does such situation as was contemplated by the testator, now exist; that is to say, has a perpetual charter for the establishment of such a New Church University as the testator had in mind, been obtained, and does such university exist? If so, the fund belongs to the institution so chartered,' and is payable to its trustees for the purposes of the trust, to-wit, the endowment of the institution. If no such institution has been established, then, the final settlement having been made of the estate, the fund belongs to the trustees named in the will, upon the further trust, to accumulate until the fund is sufficient to establish such an institution in the manner indicated by the testator, and then apply directly to the end testator had in view. The Academy of the New Church, one of the appellants, is an incorporated institution of learning, chartered in 1877. It is located in the suburbs of the city of Philadelphia, where it owns and occupies some eighty-seven acres of land on which are erected the necessary college buildings, together valued at $252,035.06; and, in addition, it has an endowment fund yielding a sum very much in excess of the $4,000 required by the provisions of the will. As described in its charter, the academy was incorporated for the promotion of education in all its various forms; one special purpose being “the education of young men for the ministry;” and, generally, “the propagation of the Heavenly Doctrines of the New Jerusalem and establishing the New Church signified in the Apocalypse by the New Jerusalem.” We have this finding by the auditing judge. “This incorporated New Church University is for New Church education in these United States, and for the education of New Church ministers who are educated ‘to teach the doctrine of the New Jerusalem as laid down in the writings of the Honorable Emanuel Swedenborg.’ The Academy of the General Church with its university buildings at Bryn Athyn exactly meets the requirements imposed by the testator upon the beneficiary intended by him.” If we are to accept this conclusion of fact, then, according to the interpretation we have given the will, the question is resolved. But, it is urged that the conclusion cannot be accepted, since it overlooks certain clearly defined requirements of the will. It is pointed out that the will contemplates the establishment of a University within the limits of the consolidated city of Philadelphia; whereas the academy is outside the corporate limits. And again, it is insisted that the Academy of the New Church “is controlled by and is the institution of the General Church of the New Jerusalem, a schismatic body of New Churchmen not connected with the General Convention, nor in existence at the time of Kramph’s death.” As to the first objection, it is only necessary to say that having regard to the purposes and objects the testator had in view, this in no sense can be said to be a material variance. It is impossible to conceive of any purpose the testator had in his mind which could not be quite as well secured by a university within the suburbs of Philadelphia, as by one located immediately across the dividing line and within the city limits. If we eliminate for the moment the question raised by the second objection, and assume that the academy in all respects, except that of location, conforms to the requirements of the will, and is meeting all demands, could it be urged that the general intent of the testator, in connection with his bequest, would be better effectuated by the establishment of another distinct university with like aims and objects, but feebler in its means, within the limits of Philadelphia, than by applying his bounty to the strengthening of the institution already established? We think manifestly not. Besides, if we were to deny the bounty to the academy to await the establishment of a proper institution within the city limits, so far as the evidence shows, it would be a postponement for such a length of time as would to a large degree disappoint the charity. Under the terms of the will the fund would only become available for that purpose when, supplemented by its own accretions and the subscriptions of others, it would yield “independently of the cost of the university buildings a clear annual income of four thousand dollars.” It does not appear that a single dollar has been subscribed, or that any effort whatever has been made by others to establish an institution of this description within the city limits, notwithstanding the inducement held out by the testator in the matter of endowment. For more than fifty years the will of the testator has been inviting such effort, without any response having been made. Except as such institution be established through this bequest alone, there is little reason to expect that it ever will be established. Another fifty years, making a hundred since the death of the testator, must elapse before the charity could become effective. This might not utterly defeat it; but that it would fail to meet the testator’s expectation, cannot be questioned. Under the general jurisdiction of a court of chancery to administer the estate of a charity, it has power to vary the precise terms of a charitable trust, when necessary. This rule is too well established to be doubted. It is thus expressed by Lowrie, C. J., in City of Philadelphia v. Girard’s Heirs, 45 Pa. 9, "When a definite function or duty is to be performed, and it cannot be done in exact conformity with the scheme of the person or persons who have provided for it, it must be performed with as close approximation to that scheme as reasonably practicable; and so, of course, it must be enforced. It is the doctrine of approximation, and it is not confined to the administration of charity, but is equally applicable to all devises and contracts wherein the future is provided for, and it is an essential element of equity jurisprudence.” We accordingly hold that the fact that the academy is located not within, but a short distance outside, the limits of the consolidated city of Philadelphia, should not be allowed to interfere with its capacity to take under the will of this testator.

The next objection is based on a misapprehension of the real question. We are not here dealing with a bequest to a denominational church, or to any subordinate body of such church. As we have construed the will, the bequest is to the trustees of an established institution of learning, which, judging from its charter, is in subordination to no ecclesiastical body, but is subject only to the control of its own trustees, just as the will provides that the institution contemplated by the testator should be. Its only obligation is to observe and fulfill the functions for which it was chartered, “the propagating of Heavenly Doctrines of the New Jerusalem, and establishing the New Church signified in the Apocalypse by the New Jerusalem, promoting education in all its forms, educating young men for the ministry, publishing books,” etc. The bequest being direct to the trustees, except as it can be made to appear that it was “in ease” of some particular church body to which the academy is subordinated, it must go to and be vested in the trustees, no matter how many different churches or denominations claim to be the true interpreters of the doctrine of the New Jerusalem, as laid down in the writings of Emanuel Swedenborg. Therefore it is that the fact that, subsequent to the death of testator, divisions grew up between those professing the faith of Swedenborg, resulting in the establishment of a new confederation styling itself the General Church of the New Jerusalem, as distinguished from the original confederation known as the General Convention, is a matter of no significance. Were the dispute over property belonging to the general church before the separation, or schism, or whatever it may be, it would be for the court to decide which body was in harmony with its own laws, usages, and customs as accepted by the body before the division took place: McGinnis v. Watson et al., 41 Pa. 9. In a certain case the inquiry might be whether the body holding the property was holding or teaching a different doctrine, or using a form of worship so far variant as to defeat the declared objects of the trust: Watson v. Jones, 80 U. S. 679. But no such questions can arise here. All the court in this case has to do is to identify the object of the testator’s bounty. Is this academy that object? If it be dedicated to Universal New Church education, the education of New Church ministers to teach the doctrines of the New Jerusalem as laid down in the,writings of the Honorable Emanuel Swedenborg, then it is; and we are not called upon to decide as between a General Convention and the General Church, which one the more intelligently interprets and understands the teachings and doctrines of Swedenborg. So far as denominational name is material, such fundamental distinctions as exist between Trinitarians and Unitarians may be resorted to to define and limit the trust, but not usually lesser and more refined shades of doctrine existing in different branches of the same church: Ayres v. Weed, 16 Conn. 291; Hinckley v. Thatcher, 139 Mass. 477. The difference between the doctrine taught by the academy and that accepted by the adherents of the General Convention, results simply from different interpretation of the same writings. Both alike rest on the writings of Emanuel Swedenborg, and both alike have respect to these as supreme authority. It is not for us to decide between them. Our conclusion is that the academy of the New Church, an incorporation chartered under the laws of the state meets all the requirements of the will, and therefore is the institution through which the testator’s charity is to be administered. The decree in this case is reversed; and it is now ordered and decreed that the balance for distribution, to-wit, the sum of $38,785, with any accumulations, if any, be paid over by the accountants to The Academy of the New Church, the appellant in No. 112, January Term, 1909; the costs of both appeals to be paid out of the fund.

Mestrezat and Potter, JJ.:

We did not sit when this case was first argued and, therefore, express no opinion on the question adjudicated by the decision of the sitting judges and embodied in the order of June 22, 1909. On the reargument before the full bench, the only question heard and determined was: Which of the two parties claiming as legatees is entitled to the fund awaiting distribution?


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Hollis v. Widener, Appellant.

      Negligence — Master and servant — Fellow servant — Steam vessels— Engineer and oiler — Admiralty.
    1. In the absence of direct authority to represent the owner, the chief engineer of a vesselis the fellow servant of an oiler.
    2. An oiler on a steam yacht who is injured by slipping on an alleged defectively guarded platform and who admits that he voluntarily continued to work on the platform after he knew from experience that it was dangerous is not entitled to recover against the owner of the vessel by reason of a promise to “fix” the platform given to him by the engineer.
    Argued Jan. 5, 1910.
    Appeal, No. 260, Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1904, No. 1,306, on verdict for plaintiff in case of Edward G. Hollis v. Peter A. B. Widener.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Elkin, Stewaet and Moschziskee, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $15,000, on which judgment was entered for $10,000, all above that amount having been remitted. Defendant appealed.

      Error assigned among others was (7) failure of the court to give binding instructions for the defendant.

      John F. Lewis, with him F. C. Adler, for appellant.—
    The plaintiff, an oiler, and the engineer, were fellow servants: “The Osceola,” 189 U. S. 158 (23 Sup. Ct. Repr. 483); Fallon v. Cornell Steamboat Co., 162 Fed. Repr. 329; McCarron v. Dominion Atlantic Ry. Co., 134 Fed. Repr. 762; Sage v. B. & O. R. R. Co., 219 Pa. 129, and Prevost v. Ice, etc., Co., 185 Pa. 617.

      S. Morris Wain, with-him John W. Wescott, for appellee.

      July 1, 1910:
   Opinion by

Mr. Justice Brown,

On the first trial of this case the plaintiff was the only witness examined, and a nonsuit was entered. In holding that the court below had erred in refusing to take it off, we said, through Mr. Justice Mestrezat: "This is a very close case and the meager facts disclosed on the trial do not take it out of the realm of doubt. There was but one witness produced and examined at the trial, and his examination on either side was quite unsatisfactory in developing the material facts upon which the case should turn. ... As we understand the plaintiff’s case, he alleges that the place he was assigned to perform the work for which he was employed was unsafe by reason of the failure of the defendant to guard and protect him from the machinery which it was his duty to oil, and the necessity for guarding the machinery was brought to the attention of the employer, or a person representing him, who promised to remove the danger by providing the guards necessary to protect the plaintiff while he was engaged at his work. . . . The plaintiff had been engaged at this work long enough to know the dangers, if any, arising from a defective or negligently constructed platform, and it may be that he assumed the risk of those dangers. But he contends that he rebutted the presumption that he assumed such risk by showing that he notified his employer of the dangerous condition of the platform and was assured that the danger would be removed, and that he remained at his work solely by reason of this assurance. He claims that the danger to which he was subjected was not so imminent and immediate as to require him to refuse to continue his work and, therefore, that the promise of his employer to remove the danger justified him in not at once quitting work:” Hollis v. Widener, 221 Pa. 72. On the trial, resulting in the judgment from which we have this appeal, the facts were fully developed and there is no difficulty in intelligently passing upon the right of the unfortunate appellee to recover.

The plaintiff was an oiler on a yacht owned by the defendant. He had been employed in that capacity for about fifteen months at the time he was hurt and had served two watches daily of four hours each. His duty required him to oil the engine of the ice machine at least eight times during each watch when the yacht was in commission. In oiling the engine he was compelled to stand on an iron platform, and, on July 23, 1902, while attempting to step on it, his right foot slipped and was caught between the spokes of the driving wheel. His leg was so seriously injured that it was necessary to amputate it about four inches below the knee.

There is much force in the contention of counsel for the appellant that a verdict ought to have been directed in his favor because, from the facts, as fully developed on the second trial, no negligence on his part appeared. The yacht had been built by a most reputable company, under the inspection of the United States government and British Lloyds. When completed it was given the highest class possible for any vessel afloat: “Star 100 A-l,” and a license was issued to it hi accordance with the laws of the United States. The inspection to which it was subjected was not merely of the plans, but of all the materials before and after they went into its construction. The owner had not interfered either with the plans of the ship or its construction nor insisted on any special devices in connection with it. Its entire design and construction had been intrusted to a competent shipbuilder. In addition to this undisputed state of facts, the testimony of a dozen witnesses, including government inspectors and designing and constructing engineers, concurred that the platform of the ice machine and its approach were constructed in the usual way, of usual and proper material, supplied with a proper and efficient step, with proper raffs and guards, and was in all respects safe for the use of the oilers. But, turning to the case of the plaintiff, as made out by himself on the second trial, when all the facts were fully developed, is he entitled to recover, and ought the case to have gone to the jury on what we said of it on the first appeal?

About a week before the plaintiff was injured his foot had slipped while he was attempting to step on the platform, and he made complaint of what he regarded as its unsafe condition to the engineer in charge of the engines, who was his brother. He had been oiling the ice machine engine from it for about fifteen months before this occurred and knew there was no guard in front of the driving wheel, but his contention is that, after his foot slipped the first time, he continued to incur the risk of being hurt, because his employer, after having been notified of the dangerous condition of the platform, had promised him that it would be made safe. His ground of complaint, as set forth in his statement of his cause of action and as testified to by himself on the trial, is the failure of his employer to keep this promise. The averment in the statement is, “The defendant promised and agreed to have the said platform made safe and properly guarded, but neglected to do the same,” and the testimony of the plaintiff in support of this averment is as follows: “Q. Bring your mind now to the time when you came near getting caught or hurt — you made some complaint to your brother, you say — what did you say to him? What did you say to your brother? A. I said, ‘Mr. Hollis, 1 slipped in there the other day, yesterday,’ I said, ‘Can’t there be a guard or fender or some precaution put there for us oilers?’ Mr. Hollis said, ‘Yes,’ he said, ‘Ed,’ or ‘Hollis, that’s one thing I’m going to do the first chance I have.’ He said. ‘You go on with your work and be careful with it until I fix that.’ Q. Did you go on with your work, relying on this statement? A. I went on with my work, as usual. Q. Why? A. Under the promise of my master that he was going to put guards and a fender there.”

The engineer, though the brother of the plaintiff, was not called as a witness, and there was no competent proof submitted by the plaintiff as to just what his authority was. The defendant's uncontradicted testimony was that he had no authority to make any structural or other changes in the boat without his consent or that of the master in charge of it, and that no one except the captain had power to do anything or to give any orders.

When we held on the first appeal that this case was for the jury, we were of opinion, formed from “the meager facts” as disclosed by the testimony of the plaintiff alone, that the defendant, or some one acting for and representing him, upon being notified of the dangerous condition of the platform, had promised the plaintiff that it would be guarded, and that, relying upon that promise, he was justified in not at once quitting work; but under the facts as they now appear, it is clear that the plaintiff never called the attention of his employer to the unguarded condition of the platform and that no promise by the latter was ever made to have it guarded. What the plaintiff did was to call the attention of the engineer to the condition of the platform, and he promised to have it fixed. But who was the engineer? If he was not authorized to represent and act for the owner of the boat, no notice to him of the alleged dangerous condition of the platform would be notice to the owner and no promise made by him could bind the owner. The accident occurred on a ship at sea, where, for the safety of all on board, there manifestly must be but one controlling head and but one voice to give orders and issue commands, and the authorities are uniform that all the rest in the service of the owner, except, perhaps, the master, are fellow servants. In England even the master is treated as a fellow servant: Hedley v. Pinkney & Sons Steamship Co., L. R. 1894, App. Cases, 222. In Ireland and Scotland it is held otherwise, and the master is regarded as a vice principal: Ramsay v. Quinn, Irish Rep. 8 C. L. 322; Leddy v. Gibson, 11 Ct. Sess. Cases (3d Ser.), 304. In “The Osceola,” 189 U. S. 158, it was held by the supreme court of the United States, upon a full review of the English and American authorities, “that all the members of the crew, except perhaps the master, are, as between themselves, fellow servants.”

The complaint by the plaintiff of the danger of the platform was made to but a fellow servant, and he continued to discharge his duties as an oiler on what he says was a slippery, dangerous place, on the promise of a fellow servant to “fix” it. The negligence of which he complains, as he himself puts it, was the failure of his employer to keep a promise to make safe the place where he was working. He admits that he voluntarily continued to work upon it after he knew from experience that it was dangerous, solely because there was a promise to fix it. This promise, however, was not the promise of his employer. It was but the promise of a fellow servant who had no authority to make it, and, for the failure to keep it, the employer — the owner of the ship-incurred no responsibility.

The seventh assignment of error is sustained and the judgment reversed.


author: Mr. Chief Justice Fell,

text:
    Fane, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passenger—Right angle collision— Evidence — City ordinances — Rules of company — Fire engines.

    1. Where an injury has been caused by the omission of a duty imposed by an ordinance relating to the act complained of, the failure to comply with the, ordinance may be ground for an inference of negligence, and the ordinance itself is admissible, but merely as evidence of negligence.
    2. In an action against a street railway company to recover damages for personal injuries received by a passenger in a car which was struck in a right angle collision at intersecting street crossings by a fire engine, a city ordinance giving fire engines the right of way on street railway tracks is properly excluded as not pertinent to the issue.
    3. Tn such a case it is not reversible error for the court to exclude a rule of the company requiring cars to stop while fire engines are passing and a municipal ordinance requiring cars to stop at the near side of main streets, where the charge of the court places as high a degree of care on the motorman, as that imposed by the rule and ordinance and there is nothing in the evidence to show that failure to observe either was the proximate cause of the accident.
    Argued Jan. 20, 1910.
    Appeal, No. 221, Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,324, on verdict for defendant in the case of Isabella Fane, by her father and next friend, James H. Fane, and James H. Fane, v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover for personal injuries. Before Brégy, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant.

      Errors assigned were in sustaining defendant’s objections to the admission of evidence as to the ordinances and rules of the company mentioned in the opinion of the Supreme Court.

      Francis M. McAdams, with him William H. Wilson and Joseph P. Rogers, for appellants.
    The ordinances were admissible: Ubelmann v. Ice Co., 209 Pa. 398; Penna. Co. v. James, 81* Pa. 194.
    The rules of the company are proper evidence at any time when the violation of one of the rules in any way contribute to the plaintiff’s injury: Dougherty v. Philadelphia & Reading R. R. Co., 171 Pa. 457; Philadelphia & Reading R. R. Co. v. Spearen, 47 Pa. 300; Stevens v. Boston Elevated Ry. Co., 184 Mass. 476 (69 N. E. Repr. 338).

      Thomas. Learning, with him Bernard J. O’Connell, for appellee.
    The exclusion of an ordinance requiring cars to stop on the near side of main streets was proper because that relates to a mere condition rather than to a cause of the accident: Phillips v. Ry. Co., 190 Pa. 222; Downey v. Pittsburg Rys. Co., 219 Pa. 592.
    July 1, 1910:
   Opinion bt

Mr. Chief Justice Fell,

This action was to recover for injuries alleged to have been sustained by Isabella Fane, one of the plaintiffs, while riding as a passenger in the defendant’s car. The car was running south on Sixth street, and while it was crossing Pine street, one of the horses attached to a fire engine going west on the car track on that street ran into the side of the back platform of the car. When the car was at a point near the north line of Pine street, the fire bell and the shouting of persons on the street were heard by the passengers. The motorman slackened the speed of the car without bringing it to a full stop, and then went on across Pine street. The car, except eighteen inches of the back platform, had cleared the Pine street track when the horses reached the crossing. The questions of fact at the trial were whether the plaintiff had been injured, and whether the motorman had been negligent. The verdict was for the defendant.

The questions raised by the assignments are whether there was error in refusing to admit in evidence two city ordinances and a rule of the company defendant, offered by the plaintiff. The first of these ordinances was that creating a paid fire department. It provides that the engines, carts and trucks of the fire department, when going to a fire, shall have the right of way, on the tracks of passenger railways, and that all vehicles excepting passenger cars shall be turned entirely off the tracks, and that “It shall be the duty of the conductor and driver of any passenger railway car upon the approach of any engine, hose cart, hook and ladder truck or fuel wagon when proceeding to a fire, to immediately stop said railway car until such apparatus of the fire department shall pass.” The plain meaning of the ordinance is to give to the fire apparatus the right of way on railway tracks by requiring the drivers of vehicles to turn off and the drivers of cars to stop them, in order that engines, etc., may pass more conveniently and safely. The ordinance had no application to the case.

The second ordinance offered provides that “It shall be unlawful for any motorman to fail to stop the car under his charge on the near side of all main streets within the built-up portion of the city.” The rule of the company is: “When any vehicle of the fire department, ambulance, police patrol, or companies emergency wagon, is running to duty, cars must be stopped until such vehicle has passed. At such times employees must be doubly cautious approaching cross streets to avoid collisions, and at all times when passing fire houses be on the lookout for danger in. case of fire alarm.” It did not appear from the testimony that anyone had been misled by the failure of the motorman to observe the ordinance, or rule, or that the failure to observe them was the proximate cause of the accident. The instruction to the jury was that it was the duty of the motorman to reduce the speed of his car and bring it under full control on approaching a cross street and to stop if there were indications of danger of any kind, and that if, when the car reached the house line on Pine street, the engine was in sight and approaching or if the ringing of the fire bell indicated that the engine was on Pine street, it was his duty to stop his car and wait until the engine had passed; that he was justified in attempting to cross only in the event that, having investigated, he neither saw nor heard anything that threatened danger. Under this instruction the motorman was held to a standard of care as high as that imposed by the ordinance and the rule and their proof would have been of no avail to the plaintiff.

Where an injury has been caused by the .omission of a duty imposed by an ordinance that relates to the act complained of, the failure to comply with the ordinance may be ground for the inference of negligence and it may be considered with the other facts of the case in determining the defendant’s liability. In such a case the ordinance is admissible in evidence, but at most it is merely evidence of negligence: Connor v. Traction Co., 173 Pa. 602; Foote v. American Product Co., 195 Pa. 190; Ubelmann v. American Ice Co., 209 Pa. 398; Riegert v. Thackery, 212 Pa. 86; Shaffer v. Roesch, 215 Pa. 287. In this case the failure to observe the ordinance was not the proximate cause of the plaintiff’s injury.

The judgment is affirmed.


text:
    Stinson’s Estate.

      Wills — Signature, “at the end thereof” — -Act of April 8, 1883, P. L. 849 — Probate. 1. The end of a will under the statute requiring wills to be signed “at the end thereof” is the logical end of the testator’s disposition of his property, wherever that end manifestly appears on the paper, and not the point which is spatially farthest removed from the beginning.
    2. Where an inspection of a will shows that the testatrix, after having written the first page, skipped the second, proceeded to the third, and, having reached the bottom of it, returned to the second, and, when she had completed the disposition of her estate at about the middle of the second page, signed her name there in the presence of two witnesses, the will is signed “at the end thereof” within the meaning of the statute.
    Argued Jan. 31, 1910.
    Appeals, Nos. 231, 232, 233, 234, 235, 236, Jan. T., 1909, by Annie J. Stroud, Mary G. Stroud, Ella Stroud, Herbert Stroud, William H. Stroud and Robert P. Shick, heirs of law, etc., from decrees of O. C. Montgomery Co., Nov. T., 1908, No. 4, in Estate of Agnes J. Stinson, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeals from decision of register of wills admitting a testamentary writing to probate. Before Bland, P. J., of Berks county, specially presiding
    July 1, 1910:
    The opinion of the Supreme Court states the ease.

      Error assigned was decree of court admitting will to probate.

      James Gay Gordon, with him J. Morris Yeakle, for appellants.
    At the end thereof” means the spatial physical end: Vernon v. Kirk, 30 Pa. 218; Wineland’s App., 118 Pa. 37; Harrison’s Est,, 196 Pa. 576; Knox’s Est., 131 Pa. 220.

      Montgomery Evans and Nicholas H. Larzelere, with them Irvin P. Knipe, for appellees,
    cited: Wikoff’s App., 15 Pa. 281; Fosselman v. Elder, 98 Pa. 159; Baker’s App., 107 Pa. 381; Swire’s Est., 225 Pa. 188.
   Opinion by

Mr. Justice Brown,

The requirement of the Act of April 8, 1833, P. L. 249, is, that "every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof.” The question raised on this appeal is whether the paper which was admitted to probate by the register of wills of Montgomery county as the last will and testament of Agnes J. Stinson had been signed by her at the end thereof. On appeal to the orphan’s court of the county from the action of the register, the president judge of the orphans’ court of Berks county, specially presiding, held, in a well-considered opinion, that the will had been so signed. The document admitted to probate consists of a single sheet of legal cap paper, folded in the middle in the usual way along the short dimension, making four pages of equal size. There is no writing on the fourth page. The writing in issue appears upon the first, second and third pages of the paper. The document is holographic and the signature of Agnes J. Stinson appears about the middle of the second page, following the usual in testimonium clause, and to the left of her signature are those of two subscribing witnesses. The learned counsel who, in the court below, represented the appellant from the decree of the register admitted, with characteristic candor, that the testatrix, after writing the first page, proceeded to the third, then wrote last what appears on the top of the second page, and, after the completed expression of her testamentary intention, signed her name. Application was made to the court below for a rehearing on the ground that counsel had no authority, either from the appellant from the decree of the register or from any other contestant of the will, to make such admission, and on this appeal it is one of the grounds of complaint. No testimony of any kind was offered as to the order in which the pages of the will were written at the time the testatrix signed it. Both the attesting witnesses were dead, and counsel for the present appellants admit that the issue which they raise “must be determined wholly by an inspection of the alleged will itself.” Our inspection of the document has satisfied us that the testatrix, after having written the first page, skipped the second, proceeded to the third, and, having reached the bottom of it, returned to the second, and, when she had completed the disposition of her estate at about the middle of that page, signed her name there in the presence of two witnesses. The admission of counsel, complained of by the appellants, is, therefore, wholly eliminated from the case. The question before us, reduced to one of great simplicity, is whether the end of a will is, as counsel for appellants contend, “the physical end of the writing, the point which is spatially farthest removed from the beginning,” or is the logical end of the testator’s disposition of his property, wherever that end manifestly appears on the paper.

A will is the legal declaration of a man’s intention which he wills to be performed after his death. Such declaration must, under our Wills Act, be in writing and signed at the end thereof by the testator, unless prevented by an absolute inability. His written declaration is his animus testandi; when it is fully expressed, his will is finished and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will and what must manifestly be regarded as the end of it, from an inspection and reading of the writing, is the end of it under the statute, which contains nothing about the spatial or physical end of it. The will before us, admittedly written by the testatrix herself, bears upon its face the unmistakable sequence which she intended to give to her writing. She started on the first page, and when she reached the bottom of it, turning the paper over, skipped to the third and there continued her writing, at the top of which, on the first line, the unbroken disposition of her property is continued. When the bottom of that page was reached she turned to the second, and, on the first line of it, continued in clear words the clause relating to the provisions on the third page for the Women’s Christian Association of Norristown. She then proceeded to appoint her executors and, having done so, reached the end of her will and there signed her name. From the beginning of the first page, continuing on the third and ending on the second, there is connected internal sense, containing a clear expression of testamentary intention, and the only conclusion to be reached from an inspection of the writing is that the testatrix signed her name at the place which she regarded as the end of her will. She signed her name at the end of her written act which she intended to be her will, and, as it clearly so appears from the paper itself, her execution of it is not to be declared invalid because she failed to follow the sequence of the pages. The sequence of her will is unbroken from the first line on the first page to the place where she signed her name on the second, which was the end.

While no one of our cases where the question in which the sixth section of the act of 1833 was passed upon is precisely like the one now before us, Baker’s App., 107 Pa. 381, is similar to it, and what was there said is here controlling. In that case a will was written on the first and third pages of a sheet of paper and signed at the end of the third page. In a devise to A, written on the third page, numbered “4th,” certain words describing the property devised were erased and the words “See next page” were there interlined. On the fourth page of the same sheet of paper was written an unsigned clause, numbered “4th,” making a bequest to A, and also additional bequests to other beneficiaries. The scrivener who drew the will testified that the erasure and interlineation were made by him by testator’s direction, and he identified the writing on the fourth page as the subject of the said reference in the will and as having been written by him at the testator’s direction prior to the signing by the latter. In holding that the writing on the fourth page was to be read into the will as constituting the fourth clause thereof and that the entire instrument, with said clause incorporated therein, should be admitted to probate as the testator’s will, we said: “Thus the general principle has been clearly established that a will is to be read in such order of pages or paragraphs as the testator manifestly intended, and the coherence and adaptation of the parts clearly require. In writing a will upon the pages of foolscap paper, a testator may or may not conform to the order of the consecutive pages of the folio: there is no law which binds him in this respect; he may begin upon the fourth page of the folio and conclude upon the first, or he may commence upon the first, continue upon the third, and conclude upon the second; in whatever order of pages it may be written, however, it is to be read, as in Wikoff’s Appeal, according to their internal sense, their coherence or adaptation of parts. The order of connection, however, must manifestly appear upon the face of the will; it cannot be established by extrinsic proof. Whilst, therefore, the end of the writing in point of space may in most cases be taken as the end of the disposition, it does not follow that in all cases the signature must, of necessity, be there written, if it be written at the end of the will, according to such connection and arrangement of the pages or sheets, as the obviously inherent sense of the instrument requires.” To the same effect is the following from what was said by Mitchell, C. J., in Swire’s Est., 225 Pa. 188: “The statute requires that a will shall be in writing, and signed by the testator ‘at the fend thereof.’ The end meant by this provision is the logical end of the language used, which shows that the testamentary purpose has been fully expressed. The position of the signature with regard to the bottom or end of the page is only evidence on the question whether the testator has completed the expression of his intention. Prima facie that is the natural place for the signature to be placed to show the full expression of the testator’s wishes and therefore is presumptively the right place for it, but it is only evidence and must give way to evidence of a different intent. . . . In the present case the connected sense of the text is entirely clear, though it does not follow the usual order of arrangement. But it does not deviate from it more than many letters written in the style of the present day where the writing jumps from the first to the third page and then back to the second. The full substance of the testatrix’s intent and its expression are there, and the signature is at what she intended and regarded as the end of her will. Where that is manifest the continuity of sense and not the mere position on the page must determine the statutory ‘end thereof’ as the place for the signature.”

The requirement of the English acts is similar to that of our act of 1833 as to where a will is to be signed. In Goods of Coombs, L. R. 1 Probate and Divorce, 302, a will filled the first and third pages of a sheet of foolscap paper, leaving no room af the bottom of the third page for the signatures of the testator and the attesting witnesses. These were written on the second page, and it was held that the will was duly executed under 1 and 15 Vict., which require wills to be signed “at the foot or end” thereof. In the Goods of Wotton, L. R. 3 Probate and Divorce, 159, a testatrix procured the form of a will lithographed on the first side of a sheet of foolscap paper and wrote her will on the second and third pages of it, ending near the bottom of the third. The fourth was blank. She signed her name in the presence of witnesses at the foot of the lithographed form, on the first page, and it was held that the will was signed at the foot or end thereof, as required by the acts, Sir J. Hannen saying: “The true way to look at the transaction seems to be that, as the will was begun on the second and continued on the third side of the paper, these must be taken to be the first and third pages of the will, and so we are brought round to what, under ordinary circumstances, would be called the first page, but which, upon these facts, must be treated as the last page of the will, as I hold it was when executed.”

It is urged by the learned counsel for appellants that their contention that the end of a will is the physical end of the writing — the point spatially farthest removed from the beginning — has been sustained by the New York court of appeals in Will of Andrews, 162 N. Y. 1. But that case differed in very important particulars from this. There the will was written upon a printed blank, folded in the middle so as to make four consecutive pages, with the attestation clause at the top of the second page. At that point it was signed by the testator and the subscribing witnesses, and the first two pages made a complete will. The third page contained other and complete dispositions of property, in no manner connected with what appeared on the first and second pages, except that the third page was numbered “2nd page” and the second page “3rd page.” In addition, the will was not in the handwriting of the testatrix, but in that of a person to whom the bulk of the estate was given as the residuary beneficiary. The case cannot be regarded as authority at all for the question now before us, which was properly disposed of by the court below, and its decree is affirmed at appellants’ costs.


author: Mr. Justice Stewart, Mestrezat, Elkin and Moschzisker, JJ.,

text:
    Gress, Appellant, v. Philadelphia & Reading Railway Company.

      Negligence — Railroads—Infant—Presumption of incapacity — Contributory negligence — Evidence.
    1. In an action to recover damages for the death of a child killed under circumstances which would have absolutely precluded recovery in the ease of an adult, where it appears that the child lacked but a few days of being fourteen, the presumption of incapacity to appreciate and avoid danger is very feeble, and is clearly rebutted by testimony showing that the child had had years of experience in connection with the very danger which was risked and possessed unusual capacity in other affairs.

      Negligence — Imputed negligence■ — Parent and child — Delegation of authority — Contributory negligence.

    2. Where a parent commits a child six years old to its sister fourteen years old, competent for her age as caretaker and the child is killed in an accident through the contributory negligence of the sister, the latter’s negligence must be imputed to the parent in an action by the parent to recover damages for the death.
    Mestrezat, Elkin and Moschzisker, JJ., dissent.
    Argued May 9, 1910.
    Appeal, No. 46, Jan. T., 1909, by plaintiffs, from judgment of C. P. Lebanon County, March T., 1907, No. 93, on verdict for defendant in case of George Gress and Mary, his wife, v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed,
    Trespass to recover damages for death of two children. Before Ehrgood, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in giving binding instructions for defendant.

      Walter C. Graeff, for appellants.
    The court was not warranted in holding the older child guilty of contributory negligence as a matter of law: Pyne v. R. R. Co., 212 Pa. 143; Penna. Coal Co. v. Nee, 13 Atl. Repr. 841; Strawbridge v. Bradford, 128 Pa. 200; Kilkeary v. Thackery, 165 Pa. 584.
    July 1, 1910:
    The contributory negligence of Julia Gress should not be imputed to the plaintiffs: Metzler v. Phila. & Reading Ry. Co., 28 Pa. Superior Ct. 180; Murray v. Scranton Ry. Co., 36 Pa. Superior Ct. 576; Kroesen v. Ry. Co., 198 Pa. 30; Daubert v. R. R. Co., 199 Pa. 345; Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. 169; Harkins v. Traction Co., 173 Pa. 146.

      Charles II. Killinger and Jefferson Snyder, for appellee.
    Julia Gress, although a minor, was guilty of contributory negligence: Parker v. Street Ry. Co., 207 Pa. 438; Smith v. Hestonville, etc., Pass. Ry. Co., 92 Pa. 450; Tucker v. N. Y. Cent. & H. R. R. Co., 124 N. Y. 308 (26 N. E. Repr. 916); Payne v. Chicago & A. R. Co., 38 S. W. Repr. 308.
    The contributory negligence of Julia Gress should be imputed to her parents: Pittsburg, etc., Pass. Ry. Co. v. Caldwell, 74 Pa. 421; North Penna. R. R. Co. v. Mahoney, 57 Pa. 187; Faust v. P. & R. Ry. Co., 191 Pa. 420; Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Atlanta, etc., Ry. Co. v. Gravitt, 26 L. R. A. 553.
   Opinion by

Mr. Justice Stewart,

The action was brought by the plaintiffs to recover damages for the loss of two of their children, a girl and a boy, who were killed while attempting to pass over the tracks, five in number, of the defendant company, at a public crossing in Lebanon, by a passing train. The girl was fourteen years old, lacking ten days; the boy was about six. The accident occurred at midday while the children were on their way home from school in company with many others. When they approached the crossing, they found the gate down, arresting their further progress. While standing there a box car wás shunted from the east, which, while it did not entirely clear the crossing at the point where it rested, left unobstructed so much of the crossing as was directly in front of the point where the children stood, but concealed from their view the tracks beyond that on which it rested, to the west. This being the situation the children with a view of crossing over passed under the gate. They ran across the first track, the girl leading the boy, directly in the rear of the shunted car which was at rest on the second track; and without stopping continued over the next track beyond, still running, and then entered upon the third track, when the boy fell. While his sister was helping him to his feet, both children were struck by a train coming from the west. The negligence alleged was failure to give proper signal of the approach of the train, and undue rate of speed. The trial judge directed a verdict for the defendant on the ground of contributory negligence. This is the only feature of the case that calls for present consideration. Of course, for an accident occurring under such circumstances to an adult, there would be no liability on the part of the railroad company. Contributory negligence would defeat recovery in such case. Is it sufficient here? The action is by the parents. If both these children were lacking in capacity to understand and appreciate the danger to which they would necessarily be exposed in attempting to cross over the tracks of a railroad under such conditions as were here present, then clearly, the parents were negligent of their duty in allowing them to thus expose themselves. Either they should have restrained them, or put them in the care of one who would. No one knew quite so well as they the capacity of the children to avoid danger. The only inference to be derived from the testimony of the father is, that he had confidence in the ability of the older one, the girl, and that he intrusted to her care the safety of the younger. Upon no other theory could his conduct with respect to the younger child be excused or extenuated. To suffer a child of such tender years unattended to attempt a crossing such as this four times daily, could only be characterized as extreme negligence. The girl had been attending this same school for some five or six years, during all this time crossing these tracks four times daily; the father had repeatedly instructed her as to the care which she should observe in crossing over; she was a bright intelligent girl, over five feet in height, well and strong, accustomed to house work, and capable beyond her years, as the evidence clearly establishes. When asked whether she performed services about the house, the father answered, “Yes, sir, everything in the house that could be done.” He then indicated, scrubbing, washing, helping at cooking. He further said she was well built and strong, milked cows, helped to cook, washed and scrubbed. This testimony of the father derives added significance from the fact that his business was that of a landlord. John Ross, a witness called by plaintiffs, testified that he had seen her do all kinds of household work; that she was intelligent enough to look out for accidents from railroad trains, and to know what safety gates were used for. When asked the direct question whether he had put the boy in charge of the girl, the father’s reply was, “Well, they were together, they always were together.” Again when asked, “But you never trusted the boy alone over that railroad; you trusted him to go with his sister?” He replied, “They always went together.” The testimony above referred to as to the capacity of the girl, showed that the father had at least some reason to believe in her ability to take care of her younger brother; and while he does not say that he intrusted the boy to her care, it admits of no other conclusion than that he did. From the evidence in the case, several conclusions are unavoidable. First: if it would have been negligence in an adult to attempt to cross over the tracks under the conditions we have here, it was negligence in the girl to make the attempt. The legal presumption of her incapacity to appreciate and avoid injury had reached that point in the diminishing scale when it was almost a negligible quantity. She was within ten days of being fourteen years old, when the presumption would have^been just the opposite. Against this feeblest presumption in her case is the testimony as to her 'years of experience in connection with the very danger which she here risked, and her unusual capacity in general affairs. “In clear cases where the facts are settled and there can be no reasonable doubt as to the inference to be drawn, the question may be determined by the court as matter of law:” Parker v. Washington Electric St. Ry. Co., 207 Pa. 438. Second: the only inference derivable being that the father had committed the younger child to the sister as a caretaker, and the accident having occurred through the contributing negligence of the sister, the latter’s negligence must be imputed to the father, the action being for his benefit. The caretaker was of his own selection: she stood towards her brother in loco parentis by the parent’s own appointment, and for any loss which resulted to him from her negligence, no right of action could arise. It seems to be true that in our own state no express adjudication is to be found where this doctrine has been asserted and applied, and yet cases are not wanting where the doctrine is impliedly recognized. In North Penna. R. R. Co. v. Mahoney, 57 Pa. 187, it is said by Sharswood, J., “If, how lever, this was an action by the father to recover damages for the death of the child, a very different question would be presented. It would most probably be held that it was negligence to suffer such an infant to be out on the streets without a caretaker, and he could not hold the defendant responsible, whether he had appointed a caretaker who was negligent, or left the child to roam at large without one.” Kroesen v. Newcastle Electric St. Ry. Co., 198 Pa. 30, impliedly recognizes the rule. There can be no question as to the general rule “Imputable contributory negligence which will bar the plaintiff from recovery, exists when the plaintiff, although not chargeable with personal negligence, has been by the negligence of a person in privity with him, and with whose fault he is chargeable, exposed to the injury which he received through the negligence of the defendant. In cases of this character, if the negligence of the person exposing the plaintiff to injury is a proximate cause of the injury, the plaintiff cannot recover, because the contributory negligence of such person will be imputed to him:” 7 Am. & Eng. Ency. of Law (2d ed.), 445. The numerous cases cited in support of the text show how generally the rule obtains. It is supported by abundant reason and we accept it as the law. It follows that the learned trial judge committed no error in declining to take off the nonsuit which he had directed.

The assignments of error are overruled and the judgment affirmed.

Mestrezat, Elkin and Moschzisker, JJ.,

dissenting:

In our opinion the question of the contributory negligence of the child was for the jury and not for the court, therefore we dissent from the views expressed in the majority opinion.


author: Mr. Justice Stewart,

text:
    Delaware, Lackawanna & Western Railroad Company v. The Tobyhanna Company, Limited, Appellants.

      Adverse possession — Statute of limitation — Lands owned by railroad not part of right of way.

    1. Land purchased by a railroad company outside of its rights of way, for railroad purposes generally, not present but prospective, is subject to the statute of limitations, and title to it may be acquired as against the company by adverse possession.
    2. In an action of ejectment by a railroad company to recover possession of a strip of land lying along its right of way acquired by purchase and never appropriated for railroad purposes, evidence by defendant of twenty-four years’ adverse possession is competent and material.

      Evidence — Title to unseated lands — Tax deeds — Claimant by adverse possession.

    3. Where in an action of ejectment a link in plaintiff’s title is a treasurer’s deed which recites the sale for taxes of a large tract of unseated land embracing the lot in dispute, and there is no evidence offered of a valid assessment of the lands, the defendant claiming title only through adverse possession, is not in position to demand higher proof of an assessment than the deed itself.
    Argued March 8, 1910.
    Appeal, No. 243, Jan. T., 1909, by defendant, from judgment of C. P. Monroe Co., Dec. T., 1907, No. 22, on verdict for plaintiff in case of Delaware, Lackawanna & Western Railroad Company v. Tobyhanna Company, Limited.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Ejectment for land in Coolbaugh township. Before Staples, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in overruling defendant’s objection to the admission in evidence of the county treasurer’s record of taxes assessed against unseated lands in Monroe county; in overruling defendant’s objection to the admission.in evidence of the county treasurer’s record of sales of unseated lands for the year 1846; and of a treasurer’s deed executed in said year; and in refusing to admit evidence of more than twenty-one years’ adverse possession of the land by defendant.

      F. B. Holmes, for appellant.
    Assuming for the purposes of this argument that it is the established law of this state that title to land lying within the limits of the right of way of a railroad company cannot be acquired by adverse possession, still there is nothing in any of the decided cases which warrants the extension of that principle to land outside of the right of way, and the overwhelming weight of authority from other states is against the reason of such a doctrine: Lehigh Valley R. R. Co. v. Frank, 39 Pa. Superior Ct. 624; P. C. C. & St. L. Ry. Co. v. Stickley, 155 Ind. 312 (58 N. E. Repr. 192); Spottiswoode v. R. R. Co., 61 N. J. L. 322 (40 Atl. Repr. 505); Bobbett v. Southeastern Railway Co., L. R. 9 Q. B. Div. 424; Matthews v. Ry. Co., 110 Mich. 170 (67 N. W. Repr. 1111); Littlefield v. B. & A. R. R. Co., 146 Mass. 268 (15 N. E. Repr. 648); Illinois Central R. R. Co. v. Houghton, 126 Ill. 233 (18 N. E. Repr. 301).
    An assessment regular or irregular was essential to the validity of this sale; that such assessment must be shown affirmatively and that want of such assessment is not cured by the Act of March 11, 1815, 6 Sm. L. 277, are clearly established principles: Bratton v. Mitchell, 1 W. & S. 310; McReynolds v. Longenberger, 57 Pa. 13; Bachop v. Critchlow, 142 Pa. 518; Lyman v. Philadelphia, 56 Pa. 488.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellee.
    Land lying within the limits of a railroad right of way cannot be acquired by adverse possession: Glisson v. R. R. Co., 15 Pa. Dist. Rep. 369; Reading Co. v. Seip, 30 Pa. Superior Ct. 330; Kopf v. Utter, 101 Pa. 27; Stevenson’s App., 17 W. N. C. 429; Pennsylvania R. R. Co. v. Freeport Boro., 138 Pa. 91; Lehigh Valley R. R. Co. v. Frank, 39 Pa. Superior Ct. 624; Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Pittsburg Junction Railroad Co.’s App., 122 Pa. 511; Hummel v. Cumberland Valley R. R. Co., 175 Pa. 537; Lake Shore, etc., Ry. Co. v. N. Y. C. & St. L. Ry. Co., 8 Fed. Repr. 858; Wilmington, etc., R. R. Co. v. Walker, 15 Pa. Dist. Rep. 373; P., W. & B. R. R. Co. v. Williams, 54 Pa. 103; New Mexico v. U. S. Trust Co., 172 U. S. 171 (19 Sup. Ct. Repr. 128); U. S. Trust Co. v. Atlantic & P. Ry. Co., 47 Pac. Repr. 725.
    Plaintiff’s prima facie title was properly shown on the trial: Crum v. Burke, 25 Pa. 377; Wells v. Smyth, 55 Pa. 159; Heft v. Gephart, 65 Pa. 510; McReynolds v. Longenberger, 75 Pa. 13; Gamble v. Lumber Co., 225 Pa. 288.
    July 1, 1910:
   Opinion by

Mr. Justice Stewart,

As early as 1860, the plaintiff, the Delaware, Lackawanna & Western Railroad Company, then operating an established line of road, anticipating possible future wants purchased a narrow strip of land 700 feet in length by seventy-five in width, adjoining its right of way in the village of Tobyhanna. The lot in dispute here is part of that purchase. When the railroad company recently attempted to make use of the lot, it was found to be in possession of the defendant company. To recover possession this ejectment was brought. On the trial of the case, the plaintiff showed a paper title which the court adjudged sufficient in law to establish a prima facie right. The defendant in reply set up a claim of title by adverse possession in itself and predecessors for more than twenty-one years.’ The evidence offered to establish such claim was objected to, on the ground that title to land purchased by a railroad company and necessary for its purposes cannot be acquired by adverse possession, however long continued. The objection was sustained and the evidence excluded, with the result that a verdict was rendered for the plaintiff. The appeal from the judgment thus obtained, raises two questions: first, was the evidence offered by plaintiff sufficient to establish a prima facie right? second, was the evidence offered by defendant to show title by adverse possession properly excluded? The first calls for little discussion. A link in plaintiff’s chain of title was a treasurer’s deed which recited the sale for taxes of a larger tract of unseated land embracing the lot in dispute. When the deed was offered it was objected that no assessment of the land as unseated had been shown; that the deed was not competent evidence to establish such fact, and that without an assessment the deed was invalid. The trial judge was of opinion that, inasmuch as the defendant company claimed title only through adverse possession, it was not in position to demand higher proof of an assessment than the deed itself, and accordingly overruled the objection. We see no error in this. In Foster v. McDivit, 9 Watts, 341, it is said, “Previous to the Act of March 11, 1815, 6 Sm. L. 277, as has been correctly said, that to rest a title in the purchase of land sold for taxes, an exact and minute adherence to the directions of the laws is necessary. It must appear that every direction and requisite of the acts have been judicially complied with: Wistar v. Kammerer, 2 Yeates, 100; Blair v. Caldwell, 3 Yeates, 284. But this principle is only true as between the purchaser at the tax sale and the person who is the owner of the land, and those claiming under him. . . . All that is required in a plaintiff in ejectment, in the first instance, after showing title out of the commonwealth, as against an intruder, is to prove an actual possession, or where the land is so protected, to exhibit the deed from the commissioners or the treasurer. This is such a prima facie title as is sufficient to put the defendant on proof of a better right.” The rule here asserted has never been questioned, and the action of the court in admitting the deed was in strict accordance with it.

The other question calls for somewhat fuller discussion, since we cannot concur in the view expressed by the learned trial judge in his opinion filed in overruling the motion for a new trial. The real question in the case covers much less ground than does the objection urged in the court below to the offer of the evidence. It needs to be defined. It is not whether title to any land purchased by a railroad company can be acquired by adverse possession; but whether title to land purchased by a railroad company, outside its right of way, for railroad purposes, generally, not present but prospective, can be so acquired. It was assumed by the court below that land acquired by a railroad for what is understood as right of way, is not subject to the statute of limitations; and because certain facilities, such as switches, sidings, turnouts, buildings for fuel, water, engines, stations, etc., which could not in all cases be supplied if the company were limited to its right of way, are as essential to the operation of the railroad, it was argued that like exemption must extend to land acquired by the company for the purpose of affording such facilities or conveniences. In the first place, the assumption is not justified. If it has ever been decided by this court that title to no part of a railroad right of way, as originally established, can be acquired by adverse possession, our attention has not been directed to the case which so decides. In the opinion filed by the learned trial judge, many cases are cited as supporting the view that a right of way of a railroad is something inviolable. All these we have examined, as well as those cited upon the argument of the case. A review of these decisions would unduly lengthen this opinion. It is enough to say that not in a single one of them was the question that here concerns us decided. In several of them the exemption of right of way was assumed arguendo, only to show that it could not be a controlling circumstance in determining the question then before the court. We are not now called upon to decide the question and we express no opinion in regard to it. We simply say that it is an open one so far as our own adjudications are concerned. But, assuming for argument, as was done in the cases referred to, that the right of way of a railroad company is unaffected by the statute of limitations, it certainly does not follow that like immunity must be extended to all land held by a railroad company. There are several points of distinction to be noted. The right of way of a railroad company, whatever its established width, as soon as acquired is impressed with a public use; it constitutes a public highway. The railroad company holds it in trust for the people of the commonwealth. Once it has constructed its road upon it, the company can change the established line of the highway only as it receives legislative permission; it may not even improve the line by straightening it except as it has legislative authority for so doing. Having once established a highway, its charter power is exhausted with respect to its location, and thereafter it holds the highway, as established, for the general public. Not so with respect to estates in land acquired for facilities in operation, outside the right of way. However important or necessary these may be, the land acquired for such purposes is not impressed with a public use in the same sense. It is for the railroad company to say where these conveniences or necessary facilities shall be located, and how many shall be provided, even anticipating possible future wants; and it is equally within its power to abandon any of them, or change their location at any time. If it has constructed any upon land outside its right of way which it has acquired by ordinary purchase, it may change the use of the land at its pleasure, or it may sell it freely with or without the structure upon it; not by virtue of legislative permission, but because it owns it. If the structure be upon lands acquired by condemnation, it may discontinue the use, abandon the property and restore it to the original owner. In neither case has the public any concern so long as proper facilities are provided. No such public use is impressed upon land acquired for these purposes as interferes with the company’s absolute authority over it in the matter of use or disposition, extending even to alienation, where the right is not restrained by the grant itself. But, if we ignore all this, and further assume, as did the court below, that because such facilities as stations, switches, etc., are essential to the operation of the railroad, that therefore the land occupied by them is to be regarded as a part of the highway itself, a clear distinction remains which is of itself controlling in this case. The law makes ample provision for the acquisition by railroad companies of land for these designated purposes outside the right of way. Each is allowed to determine for itself what facilities are needed, where they shall be located, and how much land will be required; and each is given the power to appropriate and condemn in order to accommodate itself with respect thereto. Now, as we have said, the land so acquired, is impressed with a public use. But that cannot be said of land lying outside the right of way, acquired by purchase outright from the owner, and never appropriated by the company to any railroad use. Assuming that the lot in dispute was conveyed in fee to the railroad company, can the company be heard to say more than forty years after the purchase, against one who has possessed it adversely for the statutory period, we bought this land intending some day to use it for railroad purposes, and therefore you can acquire nothing by your adverse possession, when during all this long period, until the bar of the statute was raised, it had the unquestioned right to do with the land what it pleased, use it for any purpose not inconsistent with its charter, or sell it if it so chose? If the estate conveyed the company was only a qualified fee, as might be argued from the language of the deed, this circumstance would concern none but the grantors; the public would have no interest in it. Viewed from any standpoint, this lot was exclusively the property of the railroad company to do with as it pleased, as against everybody unless we have to except the grantors. How can property held in this way, for such a length of time with neither appropriation nor actual dedication, be said to be part of the railroad highway in any sense whatever? For more than forty years the railroad has been operated without it, if the facts be as stated in the offer of evidence which was rejected. How then can it be said to be part of the highway? or, how can it be said that it was in any sense impressed with a public use? Had the railroad company attempted originally to acquire this particular lot by condemnation, it would have been required to define the purpose for which it was to be used, so that it might appear that the use was to be a public one. An assertion in general terms that the company proposed to take for railroad purposes would not have been sufficient, for railroads may lawfully acquire and hold land for purposes other than those for which they have the right to condemn. It could have condemned it for a depot, and that was the only definite public purpose expressed in the grant; but it does not appear that the company even now wants to devote it to that purpose. So far as appears it may want to devote it to perfectly legitimate railroad purposes, which would not be sufficient to warrant condemnation, and therefore not in the true sense for public use. Were it shown that the loss of this property would seriously endanger the usefulness of the railroad as a public highway, that would be a consideration not to be overlooked; but even this cannot be urged. If necessary, and lost to the railroad through want of vigilance on its part, it can be reacquired. In the exercise of the power of eminent domain the company can condemn it and repossess itself of it; but we know of no other way, except by purchase from those who by asserting their adverse possession of it for more than twenty-one years have acquired a title to it under the inexorable law of the statute of limitations. All this assumes that the facts are as stated in the offer of evidence which was excluded. The evidence offered should have been admitted. The assignment of error which relates to its rejection is sustained, and the judgment is reversed with a venire facias.


author: Mr. Justice Potter,

text:
    Sloan, Appellant, v. Brown et al.

      Sales — Principal and agent — Limitations on authority — Shares of stock.

    1. Where a pledgee or purchaser takes stock with notice of the capacity in which an agent holds, he cannot deny the right of the principal therein.
    2. A purchaser of shares of stock from a known special agent is bound to ascertain the nature and extent of the agent’s authority, and is not entitled to rely upon the agent’s possession of a certificate, with an assignment and power of attorney to transfer, and a telegram from the principal containing the expression “if you can’t sell, borrow.” Wood’s App., 92 Pa. 379, distinguished.
    3. If in such a case the purchaser, with full knowledge of the ownership of the stock, pays ten cents a share for it, when inquiry would have shown him that the agent had been instructed to sell it to another party for fifty cents a share, equity will compel him to reassign the stock to the owner upon repayment of the amount paid to the agent with interest.
    Argued March 21, 1910.
    Appeal, No. 30, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Second T., 1909, No. 297, dismissing bill in equity in case of John Sloan in the. hands of the Fidelity Title & Trust Company, of Pittsburg, Committee, v. James E. Brown and Richard R. Brown, individually and partners, doing business as Morris Brown & Company, and San Toy Mining Company and Guarantee Title & Trust Company of Pittsburg.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, -Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to compel return of certain shares of stock. Before Swearingen, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree dismissing bill.

      John M. Freeman, of Watson & Freeman, with him Robert Woods Sutton, for appellant.
    The fact that plaintiff left the stock certificate and a stock power signed in blank in the possession of an agent, is no defense to this action, the defendants having actual knowledge that the plaintiff and not the agent was the owner of the stock: Westinghouse v. German Nat. Bank, 188 Pa. 630; s. c., 196 Pa. 249; Ryman v. Gerlach, 153 Pa. 197; Shattuck v. Cement Co., 205 Pa. 197; Mellon Nat. Bank v. Bank, 226 Pa. 261; Patterson v. Neal, 135 Ala. 477 (33 So. Repr. 39).

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him J. H. Painter and J. C. Slack, for appellees.

      July 1, 1910:
    Where one is in possession of a certificate with an assignment and power of attorney to transfer such certificate duly signed by the person in whose name the certificate has been issued, such one has full power to pass good title to such stock, although every one connected with the transaction knows perfectly well that the one holding the certificate and power to transfer is not the owner, and does not claim to be the owner of the stock: Wood’s App., 92 Pa. 379; McNeil v. Bank, 46 N. Y. 325; Merchants’ Bank v. Livingston, 74 N. Y. 223.
   Opinion by

Mr. Justice Potter,

In the bill of complaint filed in this case the plaintiff alleged that the defendants had purchased from one Frederick W. Ward at much less than the real value thereof, 261,112 shares of stock of the San Toy Mining Company, which they knew belonged to plaintiff; that said Frederick W. Ward had no authority to make such sale, and defendants knew that he had not; that plaintiff had demanded the return of the stock, having tendered to the defendants the amount which they paid for it, together with interest thereon. Plaintiff therefore prayed for an injunction to restrain the transfer of the stock on the books of the corporation; for a decree finding that the defendants held the said shares of stock as trustee for the plaintiff, and directing them to return and transfer to the plaintiff the said stock on payment to them of the amount paid by them therefor, with interest.

The court below was of the opinion that the fact that the plaintiff left the certificate of stock in the possession of Ward, together with the stock power signed in blank, protected the defendants in purchasing the stock from Ward, and relieved them from the burden ordinarily placed upon those dealing with a special agent, of inquiring into the nature and extent of his authority. The bill was therefore dismissed. The facts of the transaction are not in dispute. Sloan and Ward became interested in the purchase of shares in a lumber company, and Ward was to advance the money for certain payments. Sloan went to British Columbia to examine timber tracts. Before leaving, in order to secure Ward for the advances he was to make for Sloan’s share in the deal, Sloan left with Ward a certificate for 261,112 shares of San Toy Mining Company, with a power of attorney to transfer the stock, signed in blank. Ward was unable to make the payments, as he had agreed to do, and he used the certificate of stock as collateral security for the sum of $9,000, borrowed from the firm of A. E. Masten & Company. The latter used the power of attorney, and had the stock transferred to themselves and a new certificate issued in their own name; so that Sloan’s stock in the San Toy Company then stood in the name of A. E. Masten & Company, and was pledged to them for the payment of the sum of $9,000, borrowed by Ward. In order to complete the timber deal, the payment of considerable more money was required. Ward being unable to keep his agreement to provide the money, telegraphed to Sloan for advice. Sloan replied by wire, “If necessary sell Schwab hundred thousand San Toy or more fifty or better.” At the same time he telegraphed R. R. Brown, one of the defendants, “Will you lend me $25,000 on 261,112 shares San Toy stock see Frederick Ward.” The next day he wired Ward to see Dick Brown about loans. On July 21, 1908, Ward telegraphed Sloan that he was unable to sell to Schwab, and asked further advice. On July 27; Sloan wired from British Columbia, “Just returned Graham Island wonderful property if can’t sell borrow all you can on stock Dick Brown see William Shannon Wednesday try extend part.” Ward then went to defendants. He first saw R. R. Brown who referred him to James E. Brown. These gentlemen were at the time respectively treasurer and vice president of the San Toy Mining Company. They knew the stock in question belonged to Sloan, and inquiry was made of Ward by James E. Brown as to his authority to sell. Ward replied that he had authority to sell the stock; that he had the certificate with power of attorney to transfer, and showed the telegram last above quoted. Defendants did not pursue the inquiry as to Ward’s authority any further, but apparently relied upon Ward’s possession of a certificate, with an assignment and power of attorney to transfer. As a matter of fact, as above noted, at that time the certificates had been assigned to A. E. Masten & Company and surrendered, and a new certificate made out in the name of Masten & Company. James E. Brown then made an offer of ten cents per share for the stock. Ward took a little time to consider, consulted with his attorneys, and showed them the two telegrams; one authorizing him to sell to Schwab at fifty cents per share or better, and the other saying, “If can’t sell borrow all you can on stock Dick Brown;” and was advised by his attorneys that these telegrams did not authorize him to sell the stock to Brown at ten cents per share. Disregarding this advice, however, Ward accepted the bid of James E. Brown for the stock; had Masten & Company surrender the certificate, and used the proceeds to make a payment upon the lumber deal in which he was interested with Sloan. The trial judge held that the delivery of the certificate by plaintiff to Ward, with power of attorney to transfer, authorized Ward to sell the stock as though it were his own, at any price he deemed fit. He relied upon Woods’ App., 92 Pa. 379, as authority for this ruling. We think he misapprehended the ground upon which that case was decided. In Woods’ Appeal the pledgees of the stock did not know that the brokers who pledged it were not the owners, and the decision was put squarely upon that ground, Mr. Justice Tkunkey saying (p. 393): “The defendants had no knowledge of the collusive transaction between the executor and McDowell <fc Wilkins (the brokers and pledgors), nor reason to believe that they, the pledgors, were not the real owners, as they appeared.” From the master’s report in that case (p. 382) it seems that the defendant testified that he dealt with them (the pledgors) as principals, not as agents, and that he had no doubt, or reason to doubt, that the certificates were their property when he received them. In the present case, the facts are quite to the contrary; the Browns dealt with Ward as an agent, not as a principal, and knew that the stock belonged to Sloan.

The proper distinction to be made in such cases, is pointed out in the opinion by Mr. Justice Dean in Ryman v. Gerlach, 153 Pa. 197 (205), where, referring to Woods’ Appeal, he shows that the purchasers of the stock in that case were protected as “innocent strangers.” And he points out that if they were not such,, and “if they knew the securities credited to Bodmer were in fact Ryman’s, then the sale of them without authority from either Bodmer or Ryman was a wrongful conversion for which they are .answerable.’-’ And he went on to say, “Nor is there any reason, founded on the peculiar necessities of stock dealing, why brokers should not be held to the observance of the same rule of morals and law as men engaged in other avocations.” This distinction was accurately preserved and followed in Westinghouse v. German Nat. Bank, 188 Pa. 630. There the plaintiff deposited stock with a broker as security for certain stock -operations he was carrying on. He gave the broker three certificates with a power of attorney on the back of each duly executed by him. The broker without the knowledge or consent of his customer pledged the certificate with a bank as collateral security for his own indebtedness to the bank. The bank knew, when the stock was pledged, that it belonged to the plaintiff and not to the broker. The plaintiff filed a bill in equity against the bank to compel the surrender of the certificates to him. The court below entered a decree in his favor, which was affirmed by this court, in an opinion by Mr. Justice Dean, in which he said (p. 633): “The German National Bank, when it accepted the stock as collateral security on Lawrence’s general credit account, had full knowledge that they belonged to Westinghouse; and so far as the record shows, it also knew Lawrence had not the consent of Westinghouse to repledge them. This knowledge on the part of the bank is affirmatively proved. It would not have been implied, had nothing-more appeared than the fact that Lawrence, the apparent owner, had pledged them for his own account. Westinghouse had put it in the power of his broker to do this, and would not have been heard to complain. But when the bank actually knew, notwithstanding what appeared on the certificates, that the ownership was still in Westinghouse, it was bound to inquire of the owner, whether there was authority in the broker to repledge. Not having done so, it cannot now claim that the owner’s right is barred. It is so held by all our cases.” And in strict consistency with the principle thus declared, in the subsequent case of Westinghouse v. German Nat. Bank, 196 Pa. 249, where it was not shown that the bank had knowledge that the stock pledged was not owned by the broker, it was held that the owner was not entitled to recover it from the bank.

We think the principle is sound and well established, that where a pledgee or a purchaser takes stock with notice of the capacity in which the agent holds, he cannot deny the rights of the principal therein. “A person buying stock from an agent, with knowledge that the latter is acting as agent, is bound to inquire into the scope of his authority:” 1 Cook on Corporations (6th ed.), sec. 351. “Every person dealing with an agent is bound to ascertain the nature and extent of his authority. He must not trust to the mere presumption of authority, nor to any mere assumption of authority by the agent. He must at all times be able to trace the authority home to its source. Keeping within the scope of that authority he is safe and cannot be affected by secret instructions of which he was ignorant. But if he had knowledge of the instructions, or notice sufficient to put him upon an inquiry by which they might have been discovered, he will be held bound by them:” Mechem on Agency, 289.

The defendants here, having dealt with Ward as an agent, and not as a principal, were bound to inquire into the nature and extent of his authority. They did so to a limited extent, and what they admittedly learned, was quite sufficient to put them upon notice of the limitations upon that authority. The telegram shown by Ward indicated upon its face some prior instruction to him. The expression “If can’t sell, borrow,” implied that some price at which to sell had been fixed. Inquiry would have disclosed at once the fact that this limita- . tion was fifty cents per share, to Schwab. No other authority to sell had apparently been given to Ward. We agree with the court below, that under the facts found, there is nothing to justify a conclusion that the plaintiff was guilty of laches. It appears that defendants admitted the jurisdiction of the court, and made no denial of their ability to return the stock. The evidence and findings of fact show that the sale was made to James E. Brown individually, rather than to the firm of Morris Brown & Company. No suggestion is made by counsel for appellee that a decree against James E. Brown for the return of the stock cannot be enforced. We are of opinion that under the established rule of law, as applied to the facts of this case, the plaintiff is entitled to the relief for which he prays, and that he should have a decree for the restoration of the 261,112 shares of stock, upon the repayment of the amount paid to Ward therefor, with interest.

The decree of the court below is reversed, and the bill of complaint is reinstated, and it is ordered that the record be remitted to the court below, for the entry of a decree in favor of the plaintiff, as herein indicated.