text:
    Edwards’s Estate.

      Wills — Construction—Reading “and” for “or” — Issue.
    Where testatrix gives her estate, real and personal, to her daughter, providing, however, “should my daughter not be living at the time of my decease or die without lawful issue the estate to be divided between my two sons,” the word “or” will be construed to mean “and” and the daughter surviving the mother will take the whole estate absolutely.
    Argued Jan. 14, 1910.
    Appeal, No. 292,
    Jan. T., 1909, by Fidelity Trust Company, Administrator c. t. a., from decree of O. C. Phila. Co., July T., 1907, No. 190, dismissing exceptions to adjudication in Estate of Elizabeth S. L. Edwards, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    Anderson, J., filed the following opinion:
    The testatrix by her will gave the residue of her estate, both real and personal, in trust for the benefit of her daughter, providing, however, “should my daughter Henrietta Lowry Edward not be living at the time of my decease or die without lawful issue, the estate to be divided between my two sons'' Robert and Francis Augustine Edwards.” By a codicil made' in 1889, she revoked the provision in relation to the trust, and' appointed her daughter executrix of her will.
    At the audit a claim was made on behalf of the daughter that the estate vested in her at the death of the mother. The learned auditing judge, without deciding that point, held that as executrix she was entitled to the fund without entering security; citing Keene’s Est., 81 Pa. 133. Exceptions having been filed, both on behalf of the daughter and of the accountant as administrator c. t. a., the auditing judge stated at the argument he was inclined to' doubt that Keene’s Estate was authority for that ruling. The question thus again arises as to the construction of the will, which the auditing judge has intimated might be construed as a dying without issue in the lifetime of the daughter; that is, a definite failure of issue, on the ground that in a gift of personal estate a definite failure will be inferred, Eachus’s App., 91 Pa. 105, where in gifts of real estate an indefinite failure will be found under the doctrine of Eichelberger v. Barnitz, 9 Watts, 447, and cases in that line, while the erudite counsel for the exceptants has argued with much force that the case is governed by the doctrine of Mickley’s App., 92 Pa. 514; Biddle’s App., 69 Pa. 190, and Amelia Smith’s App., 23 Pa. 9, that the failure of issue refers to a failure in the lifetime of the testatrix.
    It will be noted that the gift purports to be not of personalty alone, but of all the estate of the testatrix, real as well as personal. Hence the rule of construction applicable to personalty as against real estate cannot be invoked.
    Nor is the question affected by the creation of a trust for the daughter. The gift was to her absolutely in the first instance, and the trust superimposed for her protection, and then for the benefit of the sons in case she should not become possessed of it; in other words, an alternate trust in case the estate should vest in either the sons or the daughter at the death of the testatrix. The trust, however, fell at the making of the codicil, and it has been held that an executed trust does not affect the interpretation of the will. See Smith on Executory Devises, 588; Engel’s Est., 180 Pa. 215.
    We think, however, that the true construction of this will can be reached without going into the intricate questions of definite or indefinite failure of issue by the application of a rule of construction adopted and applied for the last two or three centuries, both in England and here; and that is by reading the word “or” in this will as a conjunction equivalent to “and,” and not as a disjunctive. This reading is founded not only upon authority but also upon the natural meaning of the testatrix’s will. It is evident from both the will and codicil that the daughter was the primary object of her bounty, and there is no desire to give an estate over unless in the case of the death of both the daughter and the failure of her issue. Now, if we read the will as it is written, and the daughter had married and had issue and then died, prior to her mother’s death (which did not occur until some sixteen years after the making of the codicil), the issue would have been disinherited. That this was the intent of the testatrix cannot be inferred. In ascertaining the intent of a testatrix we must look at the facts and circumstances surrounding her at the time of the making of the will, and not at the facts as they subsequently occurred. The testatrix would not have made use of the condition of the gift over upon failure of issue if she had not intended that the issue were to take in any case in preference to the remainder-men, while reading the “or” as “and” gives the issue an estate in case of their mother dying before the testatrix. This in effect is the opinion of Chief Justice Tilghman in Holmes v. Holmes, 5 Binney, 252, where he reviews at length both the English and American authorities, and in Hauer v. Sheetz, 2 Binney, 532, and Welsh v. Elliott, 13 S. & R. 205; and by Justice Rogers in Beltzhoover v. Costen, 7 Pa. 13, and Justice Sharswood in Doebler’s App., 64 Pa. 9, and has been followed to this day: Menoher’s Est., 18 Pa. Superior Ct. 335. Says Chief Justice Tilghman, in Hauer v. Sheetz, 2 Binney, 532: “These principles are sound, and the authorities I have mentioned are founded on them, for in order to effectuate the intent of the testator the word ' or ’ is stripped of its usual disjunctive signification and converted into a conjunction copulative. Why has this been done? Because if it was construed disjunctively the devisee, who was the first object of the testator's bounty, might die under twenty-óne leaving children, and those children would be deprived of the estate, which would pass over to other persons. It is very natural that a man should give his son an estate in fee, and yet provide that it should go to a third person in case his son died without issue, and before the age at which the law permitted him to dispose of it, either by contract or by devise; but that he should’give him a fee simple, and then deprive his children of it because he happened to die before twenty-one, is altogether unnatural and improbable. The cases, therefore, that have been cited on this subject stand on a foundation not to be shaken. And Justice Sharswood, in Doebler's App., 64 Pa. 9, puts it thus: “It is unnecessary to consider now what the word 'heirs’ means in this connection, because it is abundantly clear, both upon reason and authority, that the clause must be construed as if the conjunctive word 'and’ were substituted for the disjunctive' or ’ in the sentence. Upon reason: because, if it is construed disjunctively, the devisee, the testator’s only son, who was the first object of his bounty, might die under twenty-one, leaving children, and those children would then be deprived of the estate.' This is the literal and grammatical construction of the words as they standi But this most assuredly the testator never intended: Upon authority, for the courts have uniformly, in wills containing exactly the same language, construed the word 'or’ to mean 'and.’” Mayer v. Walker, 214 Pa. 440, is not in point, as in that case there was no reason to suppose testatrix intended to use the words except in their natural sense.
    Having thus both reason and authority for it, we can, by reading the word “or” as “and,” arrive at once at the testatrix’s meaning; and that is, that the gift over is to take effect only in case her daughter died in her lifetime and without issue, and upon her daughter surviving her the real estate vested in her, and she took the personalty absolutely.
    The adjudication is modified to the extent that the award is made to her in her own right, and with this modification it is confirmed, and to this extent the exceptions are sustained.

      Error assigned was in dismissing exceptions to adjudication.

      John Marshall Gest, for appellant.
    — The majority of the orphans’ court has decided that the will vested an absolute interest in Mrs. Edwards; but in view of the great obscurity of the will and the dissenting opinion of Judge Penrose, and the inability of the accountant to obtain instructions from those adversely interested, one of whom is a distant nonresident, and the other of whom has not been heard of for many years, the appellant feels as virtual trustee for all parties who may have an interest in the estate, that the will should be construed by the court of last resort, so that if it should be decided that Mrs. Edwards takes an estate subject to a divesting contingency, the remainders over should be protected by the entry of security.
    It is, consequently, the duty of the accountant to require security to be entered by the legatee unless relieved therefrom by the consent of the persons contingently entitled, which in this case, by reason of their absence, could not be had. The administrator, therefore, has taken this appeal in order that this obscure will may be finally construed by the highest court and the rights of all parties properly protected: Umstead’s App., 60 Pa. 365; Reiff’s App., 60 Pa. 361; Koch’s Est., 4 Rawle, 268,

      Howard H. Yocum, for appellee, cited:
    Hauer v. Sheetz, 2 Binney, 532; Beltzhoover v. Costen, 7 Pa. 13; Doebler’s App., 64 Pa. 9; Shreve v. MacCrellish, 60 N. J. Eq. 198 (46 Atl. Repr. 581); Jackson v. Blanshan, 6 Johns. (N. Y.) 54; Wilkins v. Kemeys, 9 East, 366.
   Per Curiam,

February 21, 1910:

A majority of the court are of opinion that the decree of the orphans’ court should be affirmed for the reasons stated in the opinion of Judge Anderson. .


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Adams, Appellant, v. Hubbard.

      Appeals — Equity—Rehearing—Review.
    Where on an appeal from a decree in equity dismissing a petition for a rehearing and a modification of a prior decree, the Supreme Court finds no question raised by the assignments of error that had not been decided, or that could not have been raised for decision in the original proceeding and a former appeal therein, the action of the lower court in dismissing the petition will be sustained.
    Argued Jan. 17, 1910.
    Appeal, No. 298,
    Jan. T., 1909, by plaintiff, from decree of C. P. No. 4, Phila. Co.., June T., 1896, No. 543, dismissing petition for rehearing in case of John Quincy Adams v. George L. Hubbard et al., surviving partners of the firm now or late trading as George K. Hubbard and Company, and Dilworth P. Hibberd Esq., Administrator d. b. n. of the Estate of George K. Hubbard, deceased, substituted in place of George L. Hubbard, removed as administrator.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition for rehearing.

      Error assigned was decree dismissing the petition.

      J. Barton Rettew, for appellant.

      Samuel P. Tull, for appellee.
   Per Curiam,

February 21, 1910:

This appeal is from an order dismissing á petition for the opening and correction of a decree entered in the common pleas and affirmed by this court on appeal. A clear and concise history of the case will be found in the opinion of our Brother Potter in Adams v. Hubbard, 221 Pa. 511. We do not find any question raised by the assignments of error that has not been decided or that could not have been raised for decision in the original proceeding. The former adjudication therefore must be considered final. '

The appeal is dismissed.


author: Mr. Justice Elkin,

text:
    Schienle, Appellant, v. Eckels.

      Landlord, and tenant — Eviction—Remedy—Trespass—Action on covenant — Damages.
    1. One who wrongfully invades the rights of another is a trespasser, and this rule applies to the unlawful invasion of the rights of a tenant by his landlord. The tenant may sue on the covenant for quiet enjoyment, if there be such covenant either expressed or implied, or he may elect to treat the eviction as a trespass upon his rights and sue for damages. The burden is upon him to show a wrongful eviction.
    2. If, in such a case, the jury determines that the tenant has been wrongfully evicted, nominal damages at least will follow, even if no other elements of'damage have been proved.
    3. If the tenant shows that there was a wrongful eviction before the end of the period for which he had paid rent in advance such proof is evidence of actual damage to go to the jury.
    Argued Jan. 17, 1910.
    Appeal, No. 324,
    Jan. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1906, No. 1,327, refusing to take off nonsuit in case of John C. Schienle v. Charles A. Eckels.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass by tenant against a landlord for an alleged wrongful eviction.

      At the trial it appeared that the plaintiff occupied two rooms and a bath in a residence in the city of Philadelphia. He was in possession under a written lease at rental of 116.00 per month payable in advance. The plaintiff showed that he had paid his rent in advance for the month of December, 1905, and that on the thirteenth day of that month the defendant had evicted him by cutting off heat and light, and making such alterations in the building that the plaintiff was forced to remove from the premises.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Joseph Hill Brinton, with him Chas. I. Cronin, for appellant.
    — Appellant paid the rent under the terms of the lease and brought the action in trespass. The appellant, a tenant under lease, and in actual possession thereunder, being dispossessed, by the wanton and overt acts of the landlord, may under the law, bring his action for damages in trespass. Nominal damages may be recovered for trespass, though no actual damages be proved: Ripka v. Sergeant, 7 W. & S. 9; Williams v. Esling, 4 Pa,. 486; Schnable v. Koehler, 28 Pa. 181; Hutchinson v. Schimmelfeder, 40 Pa. 396.
    Actual damages were proven: Garrett v. Cummins, 2 Phila. 207; Maule v. Ashmead, 20 Pa. 482; Steel v. Frick, 56 Pa. 172.

      Owen B. Jenkins, for appellee.
    — The appellee’s acts'were no eviction: Sutton v. Foulke, 19 Phila. 419; Hele v. Stewart, 19 W. N. C. 129; Cunningham v. Entrekin, 15 Pa. C. C. Rep. 183; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Tucker v. DuPuy, 210 Pa. 461.
   Opinion by

Mr. Justice Elkin,

February 21, 1910:

In our consideration of this case we are not aided by the reasons which moved the learned court below to enter the non-suit nor for the refusal to take it off. The form of the action is trespass and the cause the alleged wrongful eviction of appellant as tenant. If the eviction was wrongful the injured party has a remedy in an action for damages. The burden was on plaintiff to show a wrongful eviction, but in our opinion this burden was met by the introduction of evidence sufficient to be submitted to the jury on this question. If the jury should determine that the tenant had been wrongfully evicted, nominal damages at least would follow, even if no other elements of damage had been proved. One who wrongfully invades the rights of another is a trespasser, and this rule applies to the unlawful invasion of the rights of a tenant by his landlord. It is no doubt true an action on the covenant for quiet enjoyment, if there be such covenant either expressed or implied, may lie, but the tenant may elect to treat the eviction as a trespass upon his rights and sue for damages. This is what the tenant did in the present case. The right to thus proceed is based upon the theory that if there was a wrongful eviction there was a willful invasion of the rights of another and the injured party is entitled to maintain his action to have his rights determined even if no substantial’injury was actually done: Williams v. Esling, 4 Pa. 486; Schnable v. Koehler, 28 Pa. 181; Hutchinson v. Schimmelfeder, 40 Pa. 396. It is not necessary to rest this case on the question of nominal damages because if there was an eviction before the end of the period for which the appellant had paid rent in advance, and this was the proof, clearly this was evidence of actual damage to go to the jury. We do not deem it necessary to discuss the question of exemplary damages and other elements of actual damage claimed for the reason that all these questions can be properly presented in the court below when the case is again tried. We are all of opinion, however, that the case was for the jury and that error was committed in entering the nonsuit.

Judgment reversed and a venire facias de novo awarded.


text:
    Columbia Avenue Trust Company v. King, Appellant.

      Principal and surety — Signature'of co-surety — Conditional signing— Notice to obligee.

    1. When one becomes surety on a bond on condition that another shall also become a co-surety, and the instrument is delivered to the obligee with this understanding after notice, and subsequently the proposed co-surety refuses or neglects to sign, the surety who did sign on condition is not liable; but the obligee must have notice of the conditional signing before delivery.
    2. Where there is nothing in the bond to indicate a conditional signing, and only one witness is offered to prove notice to the obligee, the case will be withdrawn from the jury where the testimony of such witness is vague, indefinite, inconsistent and in some instances contradictory.
    Argued Jan. 18, 1910.
    Appeal, No. 223,
    Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 4,194, on verdict for plaintiff in case of Columbia Avenue Trust Company v. Clarence P. King.
    Before Brown, Mestrezat, Potter, Erkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship for rent. Before Barratt, J.
    At the trial it appeared that defendant signed a bond as surety for the rent of a hotel at Como, New Jersey. Defendant testified that he signed the bond on the understanding that it was also to be signed by another bondsman, whose name had been given to him, before the bond should be delivered to the plaintiff. There was nothing on the face of the bond to indicate that the signature was conditional. The bond was delivered to the plaintiff without the other signature having been secured.'
    Frank H. Williams, a witness for defendant, testified as to the delivery of the bond as follows:
    “ Q. Doctor, you say at the time you presented the bond for signature to Mr. King, this conversation occurred. Was it at the time of the signature? A. It was at the time of the signature. He said, ‘There are three names in this bond, and I sign this bond with the understanding that all three names are to be put upon it.’ Q. Did you make any reply? A. I said, ‘ Of course, that is to be done, as Mr. Potts has agreed to sign it, and have no doubt it will be done.’ I then took the bond to the trust company and gave it to Mr. Cuming. Q. What conversation occurred between you and Mr. Cuming at that time? A. He had known previously what the bond was to be, and 1 assured him Mr. Potts was to sign it. Made him understand Mr. King signed it under these conditions, and that Mr. Potts was to sign the bond. Q. Did you, or did you not, tell him Mr. King’s signature was conditional upon the rest signing? A. Now, as I say, it has been seven years since then, but am very sure I made him remember that point; do not remember the words used, but am sure Mr. Cuming and I both understood that point, that Mr. King’s liability depended upon the signature of the other names mentioned in the bond. Q. I understand, Dr. Williams, that there is no doubt in your mind that you gave Mr. Cuming to understand that Mr. King’s signature to the bond was conditional upon obtaining the other signatures? A. I certainly did. Q. I mean at the time? A. I did not say right at the time. As 1 say, it has been seven years ago when in Mr. Cuming’s office we talked this matter over and I do not remember whether I sent him the bond or took it to him; that is the reason I say I do not remember whether I handed it to him or not. He sent for me, or I went to see him, I do not remember which, and we talked the matter over, but Mr. King said he did not want to be held on the bond without the other signature, and I said I would get it just as soon as I could, that would be in two or three days.”
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $3,486.67. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Thomas Ridgway, with him John J. Ridgway, for appellant.
    — The law is clear that an obligor in a bond, who signs upon condition that another person named in the bond shall also execute it, is not liable if the other person is not secured: Sharp v. U. S., 4 Watts, 21; Fertig v. Bucher, 3 Pa. 308; Miller v. Stem, 12 Pa. 383; Keener v. Crago, 81* Pa. 166; Warfel v. Frantz, 76 Pa. 88; People v. Bostwick, 32 N. Y. 445; Bank v. Phelps, 34 Conn. 92; Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460 (24 N. E. Repr. 404); Smith v. Board of Supervisors, 59 Ill. 412; Smith v. Kirkland, 81 Alabama, 345 (1 So. Repr. 276); Crawford v. Foster, 6 Ga. 202; Pawling v. U. S., 8 U. S. 219; Burke v. Dulaney, 153 U. S. 228 (14 Sup. Ct. Repr. 816); Ins. Co. v. Wilson, 187 U. S. 467 (23 Sup. Ct. Repr. 189).

      George 8. Graham, with him Joseph Gilfillan, for appellee.—
    In order to relieve a surety who has signed the bond, because another surety who is mentioned in the bond did not sign, there must be some evidence showing that the one signing was not to be responsible unless the others mentioned in the bond as proposed sureties, signed; and this fact was communicated to the obligee at or before the time it accepted the bond: Gleeson’s Est., 192 Pa. 279; Whitaker v. Richards, 134 Pa. 191; Simpson v. Bovard, 74 Pa. 351; Loew’s Adm. v. Stocker, 68 Pa. 226; Grim v. School Directors, 51 Pa. 219; Keyser v. Keen, 17 Pa. 327.
   Opinion by

Mr. Justice Elkin,

February 21,1910:

This is a suit against one of the sureties on a bond containing a joint and several obligation to pay. The defense is that the appellant signed the bond on condition that Potts, a proposed third surety, should also sign it, and inasmuch as Potts did not subsequently sign as contemplated, no liability attaches to King. There is no difficulty about the law in such cases, and as a rule the controversy is as ,to the facts. This is true in the present case. When one becomes surety on a bond on condition that another shall also become a co-surety, and the instrument is delivered to the obligee with this understanding after notice, and subsequently the proposed co-surety refuses or neglects to sign, the surety who did sign on condition is not liable. This rule is recognized in all our cases, but the obligee must have notice of the conditional signing before delivery. What understanding or arrangement the obligors may have had among themselves has no binding force upon the obligee unless the bond was accepted with knowledge of the alleged conditions. In the case at bar there is nothing in the bond to indicate a conditional execution. When plaintiff introduced in evidence the bond and lease and proved the amount due by the principal a prima facie case was made out.. The burden was then on appellant to meet this situation by countervailing proof which the learned court below concluded was not done. After a careful reading of all the testimony we have reached the same conclusion. The effort was to prove that the president of the trust company had been notified at or before the delivery of the bond of the alleged conditional signing by King. He testified in the most positive terms that he had received no such notice and that the bond was not taken upon any such condition by the trust company. The testimony of Williams relied on to prove notice is vague, indefinite, inconsistent and in some instances contradictory. When put to the test he would not say that notice of the conditional signing by King was given to Cuming before the delivery of the bond. If given after the delivery it was too late because in the absence of notice the trust company had a right to rely on the bond according to its terms when delivered and accepted. The rights and liabilities of the parties were fixed as of that date. The bond on its face was an absolute undertaking, and the testimony of Williams is too vague and indefinite to permit a jury to guess or conjecture whether some other kind of liability was intended by the parties. The learned trial judge was clearly right in the disposition of the case and we are not convinced that any substantial error was committed.

Judgment affirmed.


text:
    Layton, Appellant, v. Union Traction Company.

      Negligence — Street railways — Master and servant — Defective appliance — Nonsuit. '

    Where a horse runs into the front of a street car, crashing through the glass of the vestibule and injuring the motorman, the latter in a suit against the company for his injuries cannot charge the company with negligence in using on the car a defective air brake where the evidence fails to show a causal connection between the defective working of the brake and the accident.
    Argued Jan. 19, 1910.
    Appeal, No. 348,
    Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1902, No. 2,847, refusing to take off nonsuit in case of James H. Lay-ton v..Union Traction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    , Affirmed.
    Trespass to recover damages for personal injuries. Before Staake, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      John M. Doyle, with him Eugene Raymond, for appellant.

      Thomas Learning, with him Russell Duane, for appellee.
   Per Curiam,

February 21, 1910:

The plaintiff' was employed by the defendant as a motorman. He alleged in his statement of claim that he was sent out with a car known by the defendant to be defective and that, because of the defective condition of the car, he was unable to control its motion and it ran into a horse, whereby he was injured. The proofs presented by him were that on his return to the car barn on a previous trip he told the electrician who had charge of the repair work that the air brake did not work satisfactorily, and asked to have it fixed. Before starting on the next trip he was told that the car had been fixed and was all right. On this trip the brake worked perfectly until he had run a distance of about fifteen blocks, when he observed that it was “just not working exactly right.” As he proceeded the defect became somewhat more noticeable. He was able to stop the car but not so quickly as if the brake had been in perfect condition. After he had gone some twelve blocks further and while going on a down grade at ordinary speed, he saw a runaway horse on the track seventy-five feet directly in front of him and approaching the car. He applied the brake and, as the car stopped, the horse crashed through the glass of the vestibule of the car.

It is difficult to trace any causal connection between the defective working of the brake and the accident. The car did not run into the horse, the horse ran into the car. This would have happened if the brake had been perfect and the car had been stopped a few feet farther back. It is argued that, if the car had stopped sooner, the plaintiff would have had time to step from the vestibule to the street or to have opened the door behind him and gone into the body of the car. The probability of the horse turning to one side of the car was certainly greater than that he would run directly into its front, and the vestibule was a safer place than the street at its side. When the plaintiff first saw the horse, it was on the track seventy-five feet from him and the car and the horse were rapidly approaching each other. That in the two or three seconds that intervened before the collision, he could have stopped any car, opened the door behind him and stepped back to a place of safety is highly improbable. He did not even contemplate doing so. The whole argument is based on fanciful assumptions of what possibly might have happened if the circumstances had been different.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Fowler Waste Manufacturing Company v. Otto Gas Engine Works, Appellant.
    . Appeals — Assignments of error — Evidence—Reference to page of paper-book — Charge—Points—Exceptions.
    1. An assignment of error to a. ruling on evidence will not be considered where the assignment does not contain a reference to the page of the paper-book where the matter complained of may be found in the printed evidence. t
    2: Assignments" of error to the charge of the court and answers to points will not be considered where the record shows no exceptions taken at the trial either to the charge or the answers to points.

      Contract — Warranty—Damages—Measure of damages. '

      ■ 3. In an action to recover damages for a breach of a warranty in the sale of an engine, where it appears that the plaintiff paid for the engine and used it for more than two years, the measure of damages is the difference between the value of the engine as warranted and the real value of that which was furnished and there can be no recovery for loss of profits in plaintiff’s business resulting from inefficiency of operation of the engine.
    4.„ In such a case it is reversible error for the trial judge to permit the plaintiff’s counsel to send out to the jury a statement and calculation of the amount of the verdict to which he thought the plaintiff was entitled, where there is nothing in the evidence to support the calculation or indicate the actual value of the engine furnished. The fact that the judge instructed the jury that they should not regard the statement as evidence but as “merely the counsel’s argument,” does not overcome the effect of the error.
    Argued Jan. 20, 1910.
    Appeal, No. 237,
    Jan. T., 1909, by defendant, from judgment-of C.- P. No. 4, Phila. Co., March T., 1907, No! 4,205, on verdict for plaintiff in case of Fowler Waste Manufacturing Company v. Otto Gas Engine Works.'
    Before Fell, C! J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit for breach of warranty. Before Willson, P. J.
    At the trial it appeared that in 1903, the defendant sold to the plaintiff a gas engine for $5,350. The plaintiff paid the whole of the purchase money, and kept and used the machine for two years. The present action was brought for the breach of a warranty in the sale of the engine.
    The defendant presented this point:
    4. That the plaintiff in the statement of claim filed in this case having made no claim as an item of damage for the difference in the value of the engine and producer which were to be delivered, and the value of the engine and producer actually delivered, it cannot recover such difference even if you should find that the engine and producer delivered were not of the value.of the engine and producer contracted for. Answer: I decline that point. [5]
    Plaintiff’s counsel proposed to send a statement out with the jury.
    Mr. Carr: I object to the statement being sent out by plaintiff’s counsel. 1 think the jury should make the calculation for themselves.
    Mr. Scott: Every item is according to the figures except the item of $2,500 for the difference between an engine such as we received and the other. In my speech to the jury I told them very clearly that we had fixed at that.
    The Court (to Mr. Carr): You can send out your own statement if you desire.
    Mr. Carr: I have no statement, I will have to insist on my objection.
    The Court: I will allow the statement to go out.
    Exception noted for defendant by direction of the court. [9]
    The Court: Gentlemen of the jury, there will be handed to you by counsel for the plaintiff a statement setting forth the figures which constitute the claim which the plaintiff makes. That is not evidence. It is merely the counsel’s argument. You may believe that there is something in it or you may believe there is nothing in it. It is merely for the purpose of stating to you what the claim is. You must pass your own judgment on the case and reach your own conclusion in regard to what your verdict should be, whether for the plaintiff or for the defendant, and if it be for the plaintiff, for how much.
    Verdict and judgment for plaintiff for $3,745.42. Defendant appealed.

      Errors assigned among others were (5) answer to defendant's point, and (9) ruling as to the statement sent out with the jury.

      John G. Johnson, with him George Wentworth Carr, for appellant.
    — Plaintiff was not entitled to recover at all under the pleadings in the case: Morgan v. McKee, 77 Pa. 228; Davis v. Stuard, 99 Pa. 295; Leaming v. Wise, 73 Pa. 173; Bascom v. Stove Mfg. Co., 182 Pa. 427; Louis Warner Saw Mill Co. v. Ferree, 201 Pa. 405; Tate Bros. v. Eshler, 11 Pa. Superior Ct. 224; Spiegelberg v. Karr, 24 Pa. Superior Ct. 339; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Hilliard v. Wood Carving Co., 173 Pa. 1; Brown v. Foster, 108 N. Y. 387.
    If plaintiff was entitled to recover at all, the measure of damages fixed by the learned trial judge was erroneous: Hines v. Kiehl, 154 Pa. 190.

      Henry J. Scott, with him Albert W. Sanson, for appellee.
   Opinion by

Mr. Justice Potter,

February 21,1910:

The defendant in this case sold to the plaintiff a gas engine, warranted to develop under certain conditions a specified amount of power. Plaintiff received, used and paid for the engine, but claimed that it never worked in a satisfactory manner, and that it would not under any circumstances produce the stipulated amount of power. This action was brought to recover the damages resulting from the alleged breach of the warranty. The trial resulted in a verdict for the plaintiff for $3,745.42, and from the judgment entered upon this verdict, the defendant has appealed. Nine assignments of error have been filed. The first specification violates rule 31, as it does not contain, a reference to the page of the paper-book where the matter complained of may be found in the printed evidence. This assignment must therefore be dismissed: Downey Bros. v. Penna. R. R. Co., 219 Pa. 32. The second, third and fourth assignments are to the charge of the court, and the sixth and seventh complain of answers to points submitted by defendant. The record shows no exception taken at the trial, either to the charge, or to the answers to the particular points referred to in these assignments. For this reason they cannot be considered: Sibley v. Robertson, 212 Pa. 24; McConnell v. Penna. R. R. Co., 206 Pa. 370. Counsel recognized the force and effect of the rule at the argument, and did not press the assignments in question.

Defendant’s fourth point recited that in plaintiff’s statement no claim had been made, as an item of damages, for the difference in value between the engine delivered and that which was purchased; and as defendant maintained that under the evidence this was the only proper measure of damages, it was contended that no recovery could be had. The refusal of the fourth point is made the subject of the fifth assignment of error. It is true that plaintiff’s statement of claim does not plainly define the cause of action, and does not make it clear whether the plaintiff intended to rescind the contract, or to claim in affirmance thereof. But as the fourth point presented by defendant asks for binding instructions in its favor, it was not error to refuse it. If there was a breach of its warranty, the defendant was bound to respond in damages to the plaintiff to the amount of the difference in value between the engine furnished, and that which it contracted to supply. As the trial judge states in his charge, the evidence shows no attempt upon the part of the plaintiff to rescind the contract. Its whole course of action showed a positive affirmance or ratification of the contract. It kept the engine, and used it more than two years, and is therefore only entitled to recover the damages arising from the breach of the warranty. Under such circumstances, the measure of damages is the difference between the value of the article as warranted, and the real value of that which was furnished: Seigworth v. Leffel, 76 Pa. 476; Himes v. Kiehl, 154 Pa. 190. The learned trial judge evidently had this rule in mind, for he said to the jury, “The most that the plaintiff can recover upon the element of price, if it is entitled to recover damages in this case, would be the difference between the contract price, and what was the value of the machine, such as it was.” But he did not stop with this, and in another part of his charge, he permitted the jury to take into consideration as part of the-damages; the alleged loss of productive power in the factory, owing to the decrease in the power of the engine. This could mean nothing less- than loss of profits in the business, and would be too remote and uncertain an element for proper consideration by the jury, in estimating the damages.

Counsel for appellant further allege, in the ninth assignment, that the trial judge erred in permitting plaintiff’s counsel, against objection, to send out with the jury a statement and calculation prepared by counsel, for the purpose of indicating to the jury, the amount of the verdict to which he thought the plaintiff was entitled. The record does not show what the statement contained, except as to one item of $2,500 for the difference between the value of the engine received, and another. We do not find anything in the evidence to support this estimate, or indicate the actual value of the engine and producer which was furnished. The point raised by this assignment seems to fall directly within the ruling in Himes v. Kiehl, 154 Pa. 190. The cause of action there was similar to the one before us now, and it was there held that the measure of damages was (p. 196): “ The difference between the actual value of the engine as it was at the time of the sale and its value if it had been as warranted.” The trial judge in that case per-' mitted a statement to be sent out with the jury which contained the following: “Difference between actual value and guaranteed value — $150.” This action by the court was held to be error, and it was pointed out that the matter in dispute was not represented by any fixed sum, but was essentially a matter to be determined under all the evidence, and by the jury alone. So in the present case, the claim being for unliquidated damages, the fixing of the amount was a question peculiarly appropriate for the judgment of' the jury, under the evidence. In Quinn v. Transit Co., 224 Pa. 162, we said (p. 165): “ It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence, and are not to be determined by any estimate of counsel not based on the evidence. Any suggestion to the jury of the arbitrary amount in which the damages are laid, in the declaration, is highly improper: Reese v. Hershey, 163 Pa. 253.” It must be manifest that it would be equally injurious for counsel to hand to the jury a written statement, as was done in this case, containing at least one large item which was merely his own estimate of the amount of the damages sustained by his client in that particular, but which was not supported specifically by the evidence. Counsel for appellee in his argument suggests that the $2,500 item was excluded from the statement; but if it was, the record fails to show it. Rather does it appear that the entire statement including this item, was sent out with the jury, with the instruction from the trial judge that the jury were not to regard the statement as evidence, but as “merely the counsel’s argument.” We do not regard this as sufficient to cure the mistake, or to overcome the effect of the error.

The judgment is reversed with a venire facias de novo.


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

      Negligence — Street railways — passenger—Presumption—Evidence.
    Where an injury to a passenger on a street railway car does not result from a defect in the means or appliances of transportation, but from a collision between the side of the car while it is on its own track, and a cart or wagon not under the control or management of the street railway company, no presumption of negligence arises in favor of the passenger as against the street railway company.
    Argued Jan. 21, 1910.
    Appeal, No. 259,
    Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 3,696, on verdict for defendant in case of Robert M. Blew and Christiana K. Blew, his wife, v. Philadelphia Rapid Transit Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ferguson, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant; plaintiffs appealed.

      Errors assigned were various instructions.

      Joseph Hill Brinton and John McClintock, Jr., with them A. Florence Yerger, for appellant.

      Thomas Learning, with him Owen J. Roberts, for appellee.
   Per Curiam,

February 21, 1910:

The plaintiff was a passenger on the defendant’s cars running north on Eighth street. She was seated on the east side near the middle of the car on a longitudinal seat with her back to a window. A large ash cart was east of the track and near it. She testified that the car in passing the cart scraped against it, and the wheel of the cart broke through the window and struck her back and she was thrown to the floor. Her testimony was uncorroborated and was in direct conflict with her written statement made two days after the accident, except as to the breaking of the window. Six witnesses for the defendant, four of whom were passengers, testified that the car was standing still when the driver of the cart turned his horses to the east bn a cross street and, as his wagon swung around, the projecting end of the tailboard broke the glass; that no other part of the car was touched by the cart; that no passenger was thrown to the floor or injured in any way. The issue of fact raised was submitted to the jury by a charge that was accurate, full and entirely just to both parties.

No useful purpose would be served by reviewing in detail the numerous assignments of error. The learned trial judge was clearly right in charging that no presumption of negligence arose from the fact that the plaintiff was injured while a passenger. The accident did not result from a defect in the means or appliances of transportation, but from a collision between the side of the car while it was on its track and an object not under the control or management of the defendant, as in Railway Co. v. Gibson, 96 Pa. 83. The request for charge was properly refused because of fatal defects in asking for peremptory instructions in favor of the plaintiff.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Arnold v. Muhlenberg College, Appellant.

      Wills — Rule of construction — “ Issue ” — Devise—Rule in Shelley’s case.

    1. “Issue” is primarily a word of limitation and while the context may show that it is used as a word of purchase, it will not be so construed unless other language of the will requires it to carry out the manifest intention of the testator.
    2. The words “die leaving no issue” have a fixed legal meaning, and in the absence of language in the will disclosing a different intent they import a general indefinite failure of issue, and not a failure at the death of the first taker.
    3. Rules for the construction of wills were not made to defeat, but to carry out the intention of the testator, and hence if that intention is clearly manifested in the instrument and is not violative of some rule of law, it cannot be defeated by the application of technical rules of construction.
    4. Where there is a devise of real estate to two daughters, “to have, hold and occupy the same for and during the natural lives and the survivor of them” and should the daughters both die leaving no issue, then to descend to two other children of testator, a son and daughter, “and after their decease to their heirs,” but should the daughter last named die “leaving no issue,” her portion to go to the son “ and after his decease to his heirs,” the first takers are invested with an estate tail, which by the Act of April 27, 1855, P. L. 368, is enlarged into a fee simple estate.
    Argued Jan. 31, 1910.
    Appeal, No. 313,
    Jan. T., 1909, by defendant, from judgment of C. P. Lehigh Co., April T., 1909, No. 62, on case stated in suit of Maria E. Arnold and Martha A. Myer v. Muhlenberg College.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate. Before Trexler, P. J.
    The facts are stated in the opinion of the Supreme Court.

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

      Lawrence H. Rupp, for appellant.
    — When it is apparent from extrinsic circumstances proper to be considered, or from the provisions of the will or other instrument, that the testator or maker intended to use “issue” in the sense of children, its meaning will be so limited: Taylor v. Taylor, 63 Pa. 481; Robins v. Quinliven, 79 Pa. 333; Shalters v. Ladd, 141 Pa. 349; Parkhurst v. Harrower, 142 Pa. 432; Peirce v. Hubbard, 152 Pa. 18; Nes v. Ramsay, 155 Pa. 628; O’Rourke v. Sherwin, 156 Pa. 285; Shearer v. Miller, 185 Pa. 149.
    The word “issue” is said to be even more flexible than the more technical term, “heirs of the body,” and is readily construed as a word of purchase to effectuate the intention of the testator: Yarnall’s App., 70 Pa. 335; Robins v. Quinliven, 79 Pa. 333; Wistar v. Scott, 105 Pa. 200.

      Reuben J. Butz, with him Arthur L. Biery, for appellees.—
    That an estate may pass by implication though there are no express words of gift, it being necessary to imply a gift in order to carry into effect the intention of the testator as shown by the will, is proved by the following cases: Dale v. Dale, 13 Pa. 446; Striewig’s Est., 169 Pa. 61; Beilstein v. Beilstein, 194 Pa. 152; Sheets’ Est., 52 Pa. 257; Phillips’s Est., 10 Pa. C. C. Rep. 374; Lindsay v. Lindsay, 4 W. N. C. 358.
    Our contention as to what is carried by the use of the words, “and the survivor of them,” is well supported by authority: Jones v. Randall, 1 J. & W. 100; Bryan v. Twigg, L. R. 3 Ch. App. Cas. 183; Eales v. Earl of Cardigan, 9 Sim. 384; Hawkins v. Hamerton, 16 Sim. 410; Clark v. Baker, 3 S. & R. 470.
    Issue is a general name, including all, even to the remotest, descendants: Wistar v. Scott, 105 Pa. 200.
    The nature of the devise over has always been looked at to ascertain whether a definite or indefinite failure of issue was intended: Taylor v. Taylor, 63 Pa. 481; Roe v. Jeffery, 7 T. R. 589; Trafford v. Boehm, 3 Atk. 440.
   Opinion by

Mr. Justice Mestrezat,

February 21, 1910:

William Dorney died on March 22, 1881, leaving a will dated September 18, 1880. He left to survive him a widow and five children, four of whom were deaf-mutes. Subject to his widow’s life estate, and with the exception of a small bequest to the fifth child, Rebecca, to whom he had advanced a sum equal to her share, he distributed his estate among the four deaf-mutes. At the date of the will, Maria E. and Martha Ann (called Massy Ann in the will) were married and the former had one child, living. Subsequently a child was born to Martha which died in infancy. Henry died in 1908 leaving several children to survive him. Emmaline (called Elemina in the will) was the eldest of the four deaf-mutes, was never married, and was about thirty-eight years of age at the date of the will.

In the fifth clause of his will the testator provides as follows: “I give and bequeath unto my daughters Maria E. and Massy Ann, all that certain messuage farm and tract of land .... containing seventy six acres more or less, to have hold and occupy the same for and during the natural lives and the survivor of them, and should my said daughters Maria E. and Massy Ann both die leaving no issue the said farm shall go and descend to my son Henry W. Dorney and Elemina and after their decease to their heirs should the said Elemina die leaving no issue, her portion shall go to my son Henry W. and after his decease to his heirs.”

We agree with the conclusion of the learned court below that by this devise Maria E. and Martha Ann Dorney took a fee simple estate in the farm devised, but we do not agree with the statement in the opinion that the evident intention of the testator was to give the farm to his daughters for life and to the survivor of them for life, and if they should die without leaving children living at the time of their decease, then over to their brother. If such was the testator’s intention as disclosed by the language of the will, it should be carried out and the daughters declared to take but a life estate in the farm. Rules for the construction of wills were not made to defeat, but to carry out the intention of the testator in the disposition of his estate, and hence if that intention is clearly manifested in the instrument and is not violative of some rule of law, it cannot be defeated by the application of technical rules of construction.

The language of the fifth clause of the will does not show that the testator meant the estate should go over if the daughters died without leaving children. This interpretation is an assumption that has no basis to support it either in the fifth or any other clause of the will, and is not required to give effect to any other part of the instrument, nor to carry out the general scheme of the testator in disposing of his estate. Hence, it is not permissible to construe clause five other than its language imports. The fact that the interest in the estate given Emmaline in clause four goes over if she “should die childless” cannot defeat the testator’s clearly defined purpose, expressed in apt words, to give a different estate in another clause of the testament to another child when the context does not require it. We may repeat as applicable here what Mr. Justice Dean said in Graham v. Abbott, 208 Pa. 68, in answer to the argument that the devise over, under consideration there, should be construed subject to a definite failure of issue because the words in the devises to the other children were so construed (p. 72): “As to the devises to the others of his children, the language clearly signifies a definite failure of issue; the clause before us clearly does not import a definite failure of issue; the intention is not doubtful, for apt words to express it are used; the law imperatively fixes their meaning when used; they are not out of harmony with testator’s intention though they give a different estate to the 'one son from that given to his other children.” At the date of the will in the case at bar the testator knew that Emmaline Dorney had passed the years of young womanhood and was not married, and that both of her sisters, were several years her junior, were married and one had living issue.

The words in clause five: “die'leaving no issue,” have a fixed legal meaning, and all our cases hold that in the absence of language in the will disclosing a different intent they import a general indefinite failure of issue, and not a failure at the death of the first taker. No other part of the will in question, except the third clause which gives a life interest in the whole estate to the widow, relates to or disposes of the portion of the estate devised in this clause. In the first part of the clause, a life estate is given the two daughters and the survivor of them. Then follows the language which disposes of the remainder of the estate in the seventy-six acre farm: “ and should my daughters Maria E. and Massy Ann both die leaving no issue the said farm shall go and descend to my son Henry W. Dorney and Elemina and after their decease to their heirs should the said Elemina die leaving no issue, her portion shall go to my son Henry W. and after his decease to his heirs.” There is nothing in this language which shows that the words “die leaving no issue” are not to have their proper legal meaning or that the estate was to go over before the entire lineal descent of both daughters had become extinct. This is the settled meaning of the language uncontrolled by the context. It is applying a familiar rule to hold that the first takers, the daughters, were the primary objects of the testator’s bounty, also, that the testator intended to give them an absolute rather than a defeasible estate, and it will not be presumed that their estate or interest in the farm is to be lessened or reduced in favor of their brother and sister, the remainder-men, to whom the testator had given an equal if not greater interest in other portions of his estate. Henry was devised substantially a 100 acre farm in fee subject to an interest therein given Emmaline who was also devised a house and two lots in fee. The farm devised to Maria E. and Martha Ann, as will be observed, contains seventy-six acres. They were both married and a child had been born to one of them. Can it reasonably be inferred that the testator intended to give only a life estate in this farm to them with a remainder in fee to Henry and Emmaline who had already received at least as large a part of the testator’s estate? There is nothing in any part of the will that would warrant the conclusion that the testator intended to thus discriminate against the daughters to whom he gave the seventy-six acre farm.

A careful examination of clause five convinces us that there is nothing in it which changes the presumption that the words: “die leaving no issue,” in the event of which the estate goes over, means other than an indefinite failure of issue. It must unequivocally appear if it was intended to use them otherwise: Guthrie's App., 37 Pa. 9. “Issue” is primarily a word of limitation, and while the context may show that it is used as a word of purchase, it will not be so construed unless other language of the will requires it to carry out the manifest intention of the testator. The devise over to Henry and Emmaline in clause five is not a life estate. And the limitation over to them, if Maria and Martha who are their heirs should “die leaving no issue,” creates an estate tail: Amelong v. Dorneyer, 16 S. & R. 323. The devise to the survivor of the two sisters does not change the settled rule that the words used import an indefinite failure of issue: Clark v. Baker, 3 S. & R. 470. Nor is the fact that the devise over to Henry and Emmaline who were then living sufficient of itself to show that a definite failure of issue was intended: Lapsley v. Lapsley, 9 Pa. 130; Hackney v. Tracy, 137 Pa. 53.

The intention of the testator, as expressed in the language of his will, was that the farm should not go to Henry and Em- , maline until after the whole line of the lineal descent of Maria i and Martha had become extinct, and hence by operation of,;, the rule in Shelley's case the life estate of the latter was en-j larged into a fee tail which is converted into a fee simple byj the Act of April 27, 1855, P. L. 368. It follows that the plaintiffs are entitled to recover in this action, and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Collins v. Wayne Iron Works, Appellant.

      Equity — Nuisance—Injunction—Iron works — Residential neighborhood — Noise.
    1. No one is entitled to absolute quiet in the enjoyment of-his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells.
    2. The entry of an injunction is, in some respects, analogous to the publication of a penal statute; it is a notice that certain things must be done or not done, under a penalty to be fixed by the court. Such a decree should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and when practicable it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.
    3. Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to.
    4. On a bill in equity to enjoin the noisy operations of an iron works in a residential neighborhood, the close proximity of a railroad and the noise of the great number of trains that pass over it, may be considered as affecting the standard of comfort normally prevailing in the locality in question. ■
    5. In such a case where the evidence shows that the real annoyance was caused in the summer time when the windows and doors of the defendant’s establishment were open, and when the defendant did work outside of its building, and at times in the evenings, it is error for the court to enter a decree in such general terms that obedience to it would result in the closing up of the defendant’s works. In reversing such a decree the Supreme Court will direct that the defendant shall not operate the machinery of a noisy character between certain specified hours, and that it shall carry on all such operations on the inside of its buildings with windows securely closed with double sash and with the doors shut.

      Equity — Injunction—Building restriction — Nuisance.
    6. Where a bill in equity to enjoin an iron works as a.nuisance contains no averment or prayer for relief founded upon a building restriction in defendant’s deed, and it appears that there was no proper effort made in the court below to have the restriction construed, and it also appears that other industrial establishments were located in the neighborhood, the Supreme Court, on appeal, will not sustain such a construction of the restriction as would result in the entire closing up of defendant’s works.
    Argued Feb. 8, 1910.
    Appeal, No. 306,
    Jan. T., 1909, by defendant, from decree of C. P. Delaware Co., Dec. T., 1906, No. 41, on bill in equity in case of Susan Collins v. Wayne Iron Works.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Decree modified.

      Bill in equity for an injunction. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      E. H. Hall and John G. Johnson, with them John B. Hannum, for appellant.
    — Private citizens have no right of action either in law or equity for the suppression of a public nuisance unless on averring and proving special damage to themselves: Mechling v. Kittanning Bridge Co., 1 Grant, 416; Robinson v. Gerrity, 7 Lacka. 383.
    Where restrictions in a deed interfere with the free use of the land conveyed the law’s interpretation is strict and any doubt will be resolved against the restriction: Warbrick v. May, 2 W. N. C. 117; Tobey v. Moore, 130 Mass. 448; Gowen v. O’Hara, 15 Pa. Dist. Rep. 753.

      V. Gilpin Robinson, with him Arthur B. Huey and Henry N. Smaltz, for appellee.
    — The noisy operation of appellant’s plant is a nuisance, having regard to the character of the neighborhood in which the plant is located: Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317 (2 Sup. Ct. Repr. 719); Penna. R. R. Co. v. Angel, 41 N. J. Eq. 316 (7 Atl. Repr. 432); Robb v. Carnegie, 145 Pa. 324; Dallas v. Decorative Art Club, 4 Pa. C. C. Rep. 340; Harrison v. St. Mark’s Church, 12 Phila. 259; Rushmer v. Polsue, L. R. (1906) 1 Ch. Div. 234; Huckenstine’s App., 70 Pa. 102; Rodenhausen v. Craven, 141 Pa. 546; Penna. Lead Co.’s App., 96 Pa. 116; Osthaus v. Robinson, 12 Pa. Dist. Rep. 25.
    The nuisance works a special damage to the complainant, and the complainant’s averment of damage was sufficient: Roessler & Hasslacher Chemical Co. v. Doyle, 73 N. J. Law, 521 (64 Atl. Repr. 156); Wesson v. Washburn Iron Co., 95 Mass. 95.
    The use violated' the restrictions in the deed: Landell v. Hamilton, 175 Pa. 327; Rowland v. Miller, 139 N. Y. 93 (34 N. E. Repr. 765); Tod-Heatly v. Benham, L. R. 40 Ch. Div. 80; Gowen v. O’Hara, 15 Pa. Dist. Rep. 753; De Gray v. Monmouth Beach Club House Co., 50 N. J. Eq. 329 (24 Atl. Repr.

      388); Bimson v. Bultman, 3 App. Div. (N. Y.) 198; Clark v. Martin, 49 Pa. 289; Electric City Land, etc., Co. v. Coal Co., 187 Pa. 500; Barrow v. Richard, 8 Paige Ch. (N. Y.) 351; Birdsall v. Tiemann, 12 How. Pr. (N. Y.) 551; Gilford v. Babies’ Hospital, 21 Abbott’s New Cases, 159; Elliotson v. Fleetham, 2 Bing. (N. C.) 134; Scott v. Firth, 10 L. T. (N. S.) 240; Inchbald v. Robinson, L. R. 4 Ch. App. 388; Rogers v. Elliott, 146 Mass. 349 (15 N. E. Repr. 768).
   Opinion by

Mr. Justice Moschzisker,

February 21, 1910:

The plaintiff below, appellee here, filed a bill against the defendant below, appellant here, alleging a nuisance from the noise created by the operation of defendant’s works.

The plaintiff’s house is in a suburban residential section within less than 354 feet of a four-track railroad over which at this point about 160 trains are operated between 7 a. m. and 7 p. m. each day. The defendant’s iron works are located in a strip of land lying between the residence of the plaintiff and the railroad. This strip of land is unsuited for residential purposes. It had been in use for industrial business purposes before the plaintiff erected her house in 1899, and has been so used ever since. The defendant’s plant has grown up since 1902 without protest from the plaintiff until the filing of the bill. The noise complained of was greatly increased in the summer of 1906, and the bill was filed in the following December. The defendant employs from fifty to one hundred men; its plant is worth $50,000; and it does a business approximating $200,000 a year. There has not been any depreciation in the value of the plaintiff’s property. The price of the property in 1899 was $7,800, and the plaintiff now values it at $10,000. Since the filing of the bill the plaintiff has removed from the neighborhood, and has rented her property for one year at $60.00 per month. She did not have any difficulty in securing a tenant, and there is no evidence that the tenant has made any complaint of annoyance from defendant’s works.

The complaint averred in the bill is: “The said defendant has so wrongfully and injuriously conducted and used the said buildings and machinery therein, and so wrongfully and injuriously operated the said compressed air drills, hammers, riveting machines and other appliances therein maintained that a noise, continuous during said operation and unusual in quality and volume, is produced by the said defendant in its operation of said Iron Works,” and “ that such operation with such distressing results to your orator is unnecessary and avoidable.” The learned court below found: “The noises of which complaint is made are not reasonably endurable or bearable, and render the dwelling of complainant during the operation of said iron works uncomfortable and unfit for use as the residence of a reasonable and normal person.” The following decree was entered:^'It is ordered, adjudged and decreed that you, Wayne Iron Works, your servants, agents and employees do abate the nuisance complained of in said bill, and you are hereby enjoined and restrained from the operation of your works by at any time making noises with air drills, power hammers, power chippers, riveting machines or other tools or apparatus so as to render the premises of the plaintiff described in the said bill unfit for use and enjoyment as a residence by a reasonable and normal person.”

The defendant contends: first, that the decree does not specifically point out the things that it is required to do or to refrain from doing in order to abate the nuisance which the court found to exist; |and, second, that the evidence in the case does not justify such a sweeping decree as the one entered.

'■'The entry of an injunction is, in some respects, analogous to the publication of a penal statute; it is a notice that certain things must be done or not done, under a penalty to be fixed by the court: Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72. Such a decree should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and when practicable it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ. In the present instance, the only definite thing that the defendant is ordered to do is “ to abate the nuisance complained of in said bill.” As the evidence does not show any improper or negligent operation of the machinery, and as the defendant’s conclusion as to what constitutes “a reasonable and normal person” may well differ from that of the plaintiff, it would seem that the only safe way to comply with the decree would be to entirely stop the running of its machinery. Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to. No one is entitled to absolute quiet in the enjoyment of his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells. Here, in measuring the relief to be given, the close proximity of the railroad and the noise of the great number of trains that pass over it, should be considered as affecting the standard of comfort normally prevailing in the locality in question. In a case like the present where the annoyance arises from the conduct of a business which is not a nuisance per se, a strong effort should be made to conserve the rights of all the parties; and an important question is, Can the noise by any reasonable means be so moderated as to accord with the degree of quietness the plaintiff has a right to enjoy; and, if it can, by what means?

Turning to the testimony, a careful reading shows that many of the witnesses definitely state, and others plainly indicate, that the real annoyance was caused in the summer time when the windows and doors of the defendant’s establishment were open, and when the defendant did work outside of its buildings, and at times in the evenings. Plaintiff’s husband said that the great difficulty was in the summer time “ because they must have the windows open and the doors open to get in air,” adding “I do not care if they would shut it up where the heavy pounding is, so that the noise cannot come out.” Another -witness states that he did not notice the noise so much in the winter time, and that the difference was caused by the closing of the windows. And another: “We don’t know much about it in winter, because the windows are all closed,” adding, that in the summer time it is about seventy-five or eighty per cent worse. These statements give a fair idea of the general trend of the testimony of the plaintiff and her witnesses. We find no manifest error in any of the findings of fact made by the court below; but in addition thereto, the testimony suggests and is sufficient-to sustain the further finding that She disturbance of the standard of comfort normally prevailing in the neighborhood of the plaintiff’s residence, and the consequent annoyance to the plaintiff, are caused by.the defendant’s permitting the use of tools and apparatus of a noisy character on its premises outside of its buildings; by their use inside of certain of its buildings with the windows and doors open; and at times by the use of such tools and apparatus until late in the evenings.

On this finding, a definite decree can be entered enjoining the defendant from operating tools, machines or apparatus of a noisy character between certain hours, and requiring it to carry on all such operations on the inside of buildings with windows securely closed and with the doors shut. This decree wilt probably afford the relief required. At least such a measure of relief should be first tried before the entry of a decree that may mean the closing of the defendant’s works, the ruin of a prosperous business, and the loss of employment to many men-j

No point of law was made either here, or in the court below, on the fact that the plaintiff was not living in her property at the time of the hearing and entry of the decree. The case was apparently tried upon the theory that, since the plaintiff had been in the occupancy of the property at the inception of the action, had been compelled to remove by the nuisance complained of, and had the right to return to it at the expiration of the lease, she was entitled to such relief-as the facts might warrant.

We see no merit in the contention that-the building restrictions alone are sufficient to sustain the decree entered. The bill does not contain any averment or prayer for relief founded upon this ground, and there was no proper effort made to raise or have this point of law passed upon. The court below finds that the defendant’s real estate is subject to a restriction against the erection of “any hotel, tavern, drinking saloon, tannery, slaughter-house, skin-dressing establishment, livery stable, glue, soap, candle or starch manufactory, or other building for offensive purposes or occupation;” and it appears that the words “ blacksmith, carpenter or wheelwright shop, steam mill or commercial establishment” were physically eliminated from the restriction as stated in the deed. The restriction upon the property of the plaintiff does not appear in terms upon the record, and we have no sufficient light on the general restrictions in the locality or their relation to the defendant’s property. It appears that some of the properties were originally sold with restrictions, and some without. In view of these facts, and of the facts concerning the character of the defendant’s land, and in view of the express finding that in addition to the defendant’s works there are located in the immediate neighborhood waterworks, an electric plant, a livery stable, a blacksmith establishment, and an automobile garage, neither the meaning of the restriction contended for by the plaintiff nor the assertion of her right to enforce such restriction, can be sustained in this case.

The twenty-second assignment of error, which goes to the form of the decree, is sustained, and the decree entered by the court below is modified; and It is now adjudged, ordered and decreed that the Wayne Iron Works, its servants, agents and employees are restrained from working its plant in such a manner as to create the nuisance complained of, and to that end they are enjoined from operating drills, power hammers, power chippers, riveting machines or other tools, machines or apparatus of a noisy character between the hours of 7 p. m. and 7 a. m.; and from operating such tools, machines and apparatus of a noisy character at any time unless on the inside of buildings with all windows securely closed with double sash, and with the doors shut. The costs of this appeal to be paid by the appellant.


text:
    O’Neill v. O’Neill, Appellant.

      Trusts and trustees — Resulting trust — Parent and child — Real estate— Evidence.

    1. Where a son bargains for the purchase of real estate and his father in concluding the transaction takes title in his own name without the son’s knowledge, a resulting trust will be established in favor of the son by evidence to the effect, that the latter lived with his parents for many years, during which he paid over to them considerable sums of money; that he went into possession of the real estate immediately after the purchase, made repairs and improvements and continued in undisturbed occupancy of the premises, without payment of rent, or other acknowledgment of any ownership in the father, for a period of more than three years; that the father had declared that the property was paid for with the son’s money; and that it was assessed with the knowledge of the father in the son’s name, and taxes were paid by him.
    2. Whenever a trust fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form liable to the rights of the cestui que trust.
    3. The presumption of a resulting trust in land in favor of a son as against a father, arising from the use of the son’s money in making the purchase, arises to the same extent as where the purchase is made in the name of a stranger.
    Argued Feb. 8, 1910.
    Appeal, No. 377,
    Jan. T., 1909, by defendants, from decree of C. P. Bucks Co., April T., 1907, No. 2, in equity, on bill in equity in case of John J. O’Neill v. Morris O’Neill and Elizabeth O’Neill, his wife, Elizabeth O’Neill, Administratrix of Morris O’Neill, deceased, and Elizabeth O’Neill.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity to declare a resulting trust in real estate.
    Stout, P. J., found the material facts to be as follows:
    The plaintiff in this bill is the son, and the defendants are respectively the father and mother of the plaintiff.
    After he became of age, the plaintiff continued to live with his parents. While working in the neighborhood óf his home he boarded at home. At other times, he boarded'in the neighborhood of his work, paid his board out of his earnings, and visited his home at intervals, fie continued to live with his parents after his marriage until he moved with his wife into the Reading avenue property, the property described in the bill, about April Í, 1903.
    Morris O’Neill and Elizabeth O’Neill, the defendants, are advanced in age. They occupy a small house and lot on the canal bank in Yardley borough, about two squares from the Reading avenue property, described in the bill. Morris O’Neill was employed by the canal company as lock tender for which he was paid wages per month throughout the year. He was also running canal stables on the canal property, the proceeds of which he received. What his income per year from both sources was does not appear. Neither does it appear that Morris O’Neill had more than very moderate means. Elizabeth O’Neill is an aged woman, apparently without education, and barely able to write her name. Whether she was capable of keeping an account does not appear.
    The plaintiff gave no money directly to his father, Morris O’Neill. If any money of the plaintiff came into the hands of Morris O’Neill he received it through his wife, Elizabeth O’Neill.
    It does not clearly appear that there was a contract for board. The plaintiff claims that he paid $5.00 a week, and that his mother was to deduct that sum per week out of the money he gave her; on the other hand, she claims that John was not charged board while at home, but that he brought home $5.00 every two weeks when he was working away from home; that she could not run the house without him giving her something; that about one-third of the time he failed to pay her this sum.
    The plaintiff paid over to his mother out of his earnings from time to time various sums of money over and above her board, to keep for him. These sums aggregated to a considerable amount. This is found, not only from the testimony of the plaintiff, but from the declarations of Elizabeth O’Neill to other persons. How much he so paid over to her it is impossible to determine correctly, and not even approximately except by the plaintiff’s own uncorroborated testimony. He kept no account of the moneys paid over by him to her. His own testimony is unsatisfactory in that it was at best an approximation only from a recollection of the various jobs he worked on for a period of nine years, without precise or clear recollection of the number of weeks he worked on each job, or-the'particular days or weeks he may not have worked, and deducting from his weekly wages a customary sum of $2.00 which he alleges he allowed himself to meet his incidental expenses and clothing. Plaintiff also at various times received from his mother various small sums of money of which he kept no account. The defendant, Elizabeth O’Neill, kept no account of moneys,received by her from him, or of moneys paid out to him or on his account.
    The negotiations for the purchase of the Reading avenue property were conducted by John J. O’Neill until the offer was received from Bucks County Trust Company, through Mr. White, to sell the property for $1,250. Thereupon, John J. O’Neill and Morris O’Neill came together to the agent, Mr. White, and stated that they would take the property at the price named. No written contract was made. Shortly after-wards, Morris O’Neill called upon Mr. White alone to see if the property was all right. At that time Mr. White said to him: “It is very nice for you to buy this property for John,” to which he replied, “ Yes, I am buying it with his own money, and I hope he will be suited.” Later, Mr. White met Morris O’Neill on the street and asked him in whose name he wanted the property put; after hesitating a little, answered, “Well, maybe you had better put it in my name.” Again, on the day settlement was made, when Morris O’Neill handed Mr. White a certified check for the purchase money, he said to Mr. White, “Well, this is John's money, and he is the one that is to be suited.” Mr. White then took the check to the Bucks County Trust Company. The deed had been executed to Morris 0 ’Neill in pursuance of instructions given by Mr. White, and bears date March 5,1903. Mr. White took the deed and placed it in the recorder’s office for record, March 7, 1903, without first taking it to Morris O’Neill or his son. Morris O’Neill took out insurance upon the property and paid for the recording.

      Upon one of the visits to Mr. White’s house, Mrs. White heard Morris O’Neill say to Mr. White: “It is his own (John’s) money, he has been a good boy, he has saved his money, and it is his own money that pays for it.”
    The plaintiff, John J. O’Neill, went into possession of the property about April 1, 1903. He at once commenced to improve the property. It does not appear that Morris O’Neill had actual knowledge of the inside repairs. He had, however, every opportunity to know all about the outside improvements as he lived only two squares away. These repairs and improvements covered a period of about two years and a half. The property was assessed in the name of John J. O’Neill who paid all the taxes and water rents until this bill was filed. After the bill was filed Morris O’Neill paid the county tax, without the knowledge of his son.
    The plaintiff, John J. O’Neill, requested his father to make settlement for the property. He was not present when settlement was made. He had no knowledge that the deed was made in the name of his father. He first discovered this fact when he took the deed out of the recorder office, July 29,1903.
    The court entered a decree declaring a trust in favor of plaintiff.

      Error assigned was the decree of the court.

      William C. Ryan, for appellants.
    — Such declarations as the learned court has accepted in the case at bar are insufficient to raise a resulting trust: Hugus v. Walker, 12 Pa. 173; Robertson v. Robertson, 9 Watts, 32; Ackerman v. Fisher, 57 Pa. 457; Poorman v. Kilgore, 26 Pa. 365; Fidelity Ins. Trust & Safe Dep. Co. v. Moore, 194 Pa. 617.

      Thomas Ross, of Y erkes, Ross & Ross, for appellee.
   Opinion by

Mr. Justice Potter,

February 28,1910:

The only question raised by this appeal is whether the evidence was sufficient to justify the conclusion of the court below that there was a resulting trust in favor of the plaintiff as to the real estate in question. The court found as a fact that the purchase money belonged to the plaintiff. The legal title was placed in the father, one of the defendants, but the son, who is the plaintiff,' bargained for the purchase of the property, and, without the knowledge or consent of the son, the deed was made out in the name of the father. There was evidence to show that the son, who lived with his parents for years after his maturity, from time to time turned over considerable sums of money to them. That upon at least two occasions the father, Morris O’Neill, declared that the property in question was paid for with the son’s money. The case of the plaintiff was further strengthened by the fact, as shown by the evidence, that he went into possession of the property at once, and made repairs and improvements, and continued in undisturbed occupancy of the premises, without payment of rent, or other acknowledgment of any ownership in the father, for a period of more than three years. It was also shown that the property was, with the knowledge and consent of Morris O’Neill, assessed in the name of the son, and taxes were paid by him. The testimony of the plaintiff showed in detail the money earned by him during the period under consideration, and the amounts turned over to his parents for safe-keeping) and the assurances given him that his father would act as banker, and that his money would be all right, and would be on hand when needed. Our examination of the testimony has satisfied us that the trial judge was fully justified in finding that the real estate was purchased with the money of the son. If so, a resulting trust would arise in favor of the son. It was his money and not that of the father which formed the consideration for the purchase, and which was converted into the real estate. When this fact was established by satisfactory evidence, the plaintiff was entitled to a decree in his favor. “Whenever a trust-fund has been wrongfully converted into another species of property, if its identity can be traced, it will be held in its new form, liable to the rights of the cestui que trust:” Thompson’s App., 22 Pa. 16. The evidence shows no' agreement by the son that the purchase should be made in the name of the father. The deed was made to him without the knowledge of the son. The relationship of the parties makes no difference. The presumption of a resulting trust in favor of the son, arising from the use of his money in making the purchase, arises to the same extent as where the purchase is made in the name of a stranger.

We see no merit in any of the assignments of error. They are dismissed, and the decree of the court below is affirmed.


text:
    Guthrie v. Baton, Appellant.

      Contract — Doubtful contract — Sale—Coal lands — Interest.
    1. When the determination of the cost of a coal field is necessary to fix the price under a contract of sale, and the contract is silent on the question whether interest upon moneys expended in the purchase of the coal field is to be allowed in determining the cost, the court is not at liberty to order such interest to be allowed.

      Vendor and vendee — Purchase money — Contract—Payment.
    2. Where a vendee of land agrees to pay the vendor a certain sum of money at the execution of the agreement and in addition thereto to pay a portion of a mortgage debt charged upon the land, and also upon final settlement a difference between the cost of the land and the part of the mortgage debt assumed, a finding by the court below from certain facts established upon sufficient evidence, and also from the construction of the agreement, that the sum paid at the execution of the agreement was a part of the purchase money, and not merely a bonus to obtain the contract, will not be set aside in the absence of manifest error.
    Submitted Nov. 4, 1909.
    Appeal, No. 214,
    Oet. T., 1909, by defendant, from decree of C. P. No. 4, Allegheny Co., First Term, 1908, No. 383, sustaining exceptions to an account in case of W. A. Guthrie, W. B. Schofield, H. C. Booz, D. P. Pugh and W. K. McFarlin v. George S. Baton.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to an account.
    The proceeding in the court below was the statement of an account incidental to a decree for specific performance regarding the sale of coal and requiring an accounting. Before Swearingen, P. J.
    The facts appear in the opinion of the Supreme Court and in the previous report of this case in 223 Pa. 401.
    The court filed the following opinion:
    The plaintiffs have filed exceptions to the account stated by George S. Baton, the defendant. These came on to be heard and were argued by counsel.
    The first exception is that the accountant has not given plaintiffs credit for $5,000, which was paid upon the execution of the agreement of April 12, 1904. At and prior to the making of said contract, George S. Baton was the owner of the one-fourth interest in a coal field, the legal title to which was in J. W. Dawson. This field had been purchased in a number of separate pieces, not all at the same time.' Part of these purchase moneys had been paid in cash and the balance had been secured by mortgages. Mr. Baton had paid his one-fourth of the cash payments and he was liable for one-fourth of the said mortgages. At the time the contract of April 12,1904, which is attached to the bill of complaint, was made, Mr. Baton was in arrears $3,985.64, upon his share of said mortgages, which sum had theretofore been paid by J. W. Dawson, and Mr. Baton was also apparently liable on a note for $4,000. It was first stipulated that these plaintiffs should pay to said Dawson the sum of $4,000 at once and also $1,000 on May 8, 1904, with which to pay one-fourth of said note, "which shall be in full payment of the balance due by said George S. Baton upon the mortgages heretofore paid by said J. W. Dawson, Trustee.”
    The plaintiffs also undertook to pay Mr. Baton’s share in said mortgages, “as said mortgages shall fall due.” This can only mean the installments of said mortgages, which fell due after the date of the contract.
    It is then agreed that, if said payments shall continue until Mr. Baton’s interest (meaning his share) in all of said mortgages shall have been paid, and if, upon August 26, 1905, the exceptants shall have paid the share of Mr. Baton in said mortgages, then they should have the right to pay Mr. Baton the difference between one-eighth of the entire cost of said coal field and the amount of his interest in said mortgages, and thereupon he was to convey to the exceptants the undivided one-eiglith of said coal field.
    The exceptants contend that, under the foregoing agreement, they were to pay the entire share of said mortgages, for which Mr. Baton was liable, and that the $5,000, which they paid at the execution of the agreement, was on account of said undertaking.
    The accountant’s position, as we understand it, is that the $5,000 had nothing whatever to do with the payment of his share of said mortgages, and that exceptants are obliged to pay the entire share of said mortgages, for which Mr. Baton was liable, as if the said payment of $5,000 had never been made. We cannot agree with the accountant. The subject, about which the parties undertook to contract, was Mr. Baton’s share of these mortgages, both what had become due and what was thereafter to fall due. What had already fallen due had been paid by one of his associates, but Mr. Baton was still liable therefor, not to the mortgagees, but to Mr. Dawson and upon the note. There is nothing in the agreement, from which it could be inferred that the exceptants were paying a bonus of $5,000, in order to obtain the contract.
    The first exception is sustained.
    The second exception relates to the meaning of the term “entire cost of said coal field.” As we understand the statement of account, there has been added to the original purchase money and the other outlays interest thereon to August 26, 1905; and likewise interest has been credited on the payment of the exceptants.
    We do not think that the term “entire cost of said coal field” will bear the construction which the accountant has put upon it. Interest is not recoverable, except by way of contract or by way of damages for breach of contract. There is nothing in this contract which indicates what interest was to be charged upon the purchase money and other outlays, in order to ascertain the cost of the field, or what interest was to be credited upon payments. There was no breach of the contract, which would entitle any party to interest by way of damages.
    The second exception is also sustained.

      Errors assigned were in sustaining exceptions to the account as follows:
    1. The accountant does not give credit to the plaintiffs in his statement for the sum of $5,000 paid in cash at the time the agreement of April 12, 1904, was entered into.
    2. The accountant charges interest on the entire consideration mentioned in the respective deeds for the property, which interest is not a part of the cost of the field under the agreement between the parties, nor included in the decree of the court.

      John S. Ferguson, Geo. M. HosacJc and M. J. Hosach, for appellant.

      Patterson, Sterrett & Acheson, for appellees.
   Opinion by

Mr. Justice Elkin,

March 7, 1910:

When this case was here before the decree for specific performance entered by the court below was affirmed: Guthrie v. Baton, 223 Pa. 401. The record was then remitted for an accounting by defendant in order to ascertain the cost of the coal lands in question, the amount already-paid thereon by plaintiffs, the balances remaining unpaid on the mortgages, the proportions to be paid by plaintiffs on account of the mortgages, and the balance, if any, due defendant under the terms of the contract, the specific performance of which had been decreed. This has all been done and the case is before us again on an appeal touching questions raised in the accounting. The first question brought to our consideration is whether the appellees are entitled to a'credit of the $5,000 paid at the time of the execution of the agreement in the settlement of the account between the contracting parties. Under the finding of fact stated in the opinion of the court below to which an exception has not been taken this question must be answered in the affirmative, but aside from the finding of fact the written contract between the parties admits of no other reasonable interpretation. The conclusion of the learned court was clearly right in the disposition made of this item of credit claimed.

The other question raised relates to the allowance of interest in determining the cost of the coal field, and it is not free from doubt, but it is a doubt arising from the uncertainty of the contract. When the contracting parties fail to definitely state what they have agreed upon, courts can be of little assistance in determining what they meant. The court below very properly held that whether appellant was entitled to interest upon moneys expended by him in the purchase of the coal field prior to the execution of the contract in question depends upon the terms of the agreement entered into by the parties, and that interest is not recoverable unless the contract so provides, or by way of damages for breach of the same. The contract is silent upon the question of interest to be allowed appellant in determining the cost of the coal lands, and the courts are not at liberty to order that appellant be credited with interest when his contract did not so provide, and especially when the other contracting parties deny his right to demand it. The courts must leave the parties where they placed themselves and cannot undertake to make a new contract for them.

Decree affirmed at the cost of appellant.


author: Mr. Justice Stewart,

text:
    City of Philadelphia v. Wiggins, Appellant.

      Municipal law — Ordinances — Municipal Contracts — Bond—Penal bond — Material men — Subcontractors—Contracts.
    A bond incorporating the provisions of a city ordinance under which it was given, which ordinance provides that any person or persons engaging in city contracts shall be required to execute a penal bond upon condition that such contractor or contractors “shall and will make payment to all persons supplying him or them with labor and materials, whether as a subcontractor or otherwise, in the prosecution of the work provided for in the contract," is available for the protection of a material man furnishing materials used in the work to a subcontractor.
    Argued Jan. 7, 1910.
    Appeal, No. 322,
    Jan. T., 1909, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 2,610, on judgment for plaintiffs in case of City of Philadelphia, to the use of William Kelley, John M. Ridings, William J. Barr and James W. Barr, trading as North Philadelphia Brick Works, v. John R. Wiggins, Willard H. Walls and Francis K. Worley, trading as John R. Wiggins & Company, and Fidelity &'Deposit Company of Maryland.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on penal bond. Before Willson, P. J.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were in making absolute rule for judgment for want of sufficient affidavit of defense and entering judgment for plaintiffs.

      Chester N. Farr, Jr., with him William A. Glasgow, Jr., and Tustin & Wesley, for appellants.

      Thomas F. Gain, for appellees.
    — The question whether the bond should be construed to include persons furnishing material for the work at the order of a subcontractor, it is submitted, is answered in the affirmative by the decisions in Bowditch v. Gourley, 24 Pa. Superior Ct. 342, and Phila. to use v. Nichols Co., 214 Pa. 265.
   Opinion by

Mr. Justice Stewart,

March 7, 1910:

The bond sued on was given pursuant to the requirements of a city ordinance to which special reference is made in the bond. The ordinance provides that any person or persons entering into a contract with the city for the erection or construction of any public buildings, or for the prosecution or completion of any public work, shall be required to execute a penal bond with surety upon the condition that such contractor or contractors “shall and will make payment to all persons supplying him or them with labor and materials, whether as a subcontractor or otherwise, in the prosecution of the work provided for in the contract.” John R. Wiggins & Company contracted to build a conduit for the city of Philadelphia. Thomas Connor contractéd with John R. Wiggins & Company, the principal contractor, to do what brick work was required in connection therewith, and to furnish the necessary material. The affidavit of defense sets up this subcontract with Connor, and avers that the brick furnished by plaintiffs were supplied to Connor, who alone contracted for them. Because they were not supplied by the use plaintiff to the principal contractor, it is asserted as a legal conclusion that the claim is not within the protection of the bond. Judgment was given for want of a sufficient affidavit of defense. The bond, it will be observed, follows the language of the ordinance; the condition being that the contractor shall pay all sums due “for supplying him with labor and materials, whether as to subcontractor or otherwise in the prosecution of the work.” In Bowditch v. Gourley, 24 Pa. Superior Ct. 342, a material man who furnished supplies to a subcontractor was allowed to recover on the bond filed. It is sought- to distinguish that case from this, by the fact that there the bond was conditioned on the contractor “paying for labor and materials furnished and supplied or performed in or about the said work;” while here the condition expressed is, that he pay all sums due “for supplying him (the contractor) with labor and materials;” the argument being, that the liability in the one case, because of the general words employed in the condition, is much wider than in the other. But the adjudication there was not rested on such fact. Recovery was allowed not on the ground that the condition of the bond sued on embraced more than the requirements of the ordinance and persons supplying a subcontractor were within the more extended scope of the bond. The court narrowed the condition as expressed in the bond so that it was allowed to include nothing that was not contemplated by the ordinance; and so construed, it was held that material men supplying a subcontractor in the prosecution of the work were within its protection. The opinion filed in the case leaves us in no doubt as to what was there decided. “To interpret this ordinance,” says the learned judge, “it' is not necessary that any word should be added, nor that any one used should be treated as surplusage. A contractor after having his bond approved cannot relieve his surety from liability by permitting his subcontractor to deal with the work independent of his superior. The liability is his to pay all persons supplying him or them with labor and materials, whether as a subcontractor or otherwise, and on his default this liability succeeds to the surety.” It was this construction of the ordinance that met with the unqualified approval of this court in Philadelphia v. H. C. Nichols Company, 214 Pa. 265, where this language is used: “The exact question here raised as to the construction of the ordinance was decided in Bowditch v. Gourley, 24 Pa. Superior Ct. 342, and we concur in the conclusion announced by that court that ‘ to sanction any other construction would be destructive of the very purpose of the ordinance by taking from the honest labor or material man ithe particular security which the city councils had provided for his protection.’' ” If this is the proper interpretation of the ordinance — and we have clearly adjudged it so to be in the case just cited — it follows that the bond in this case is to receive like construction, since it follows the exact language of the ordinance. The question is no longer an open one. The authorities cited are conclusive, and the judgment is affirmed.