author: Mr. Justice Elkin,

text:
    Cole v. Ellwood Power Company, Appellant.

      Statute of frauds — Parol license — Lease—Equity—Contract.
    If a license, or privilege to do something on the land of the licensor, is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is to be treated as a binding contract. Equity treats the license thus executed as a contract giving absolute rights, and protects the licensee in the enjoyment of those rights.
    A parol lease of a quarry reserving royalties confers upon the lessee a property right, and if the quarry is taken in condemnation proceedings he is entitled to damages for his loss. If in such a case the testimony is conflicting as to whether the right had been terminated by notice to quit before the property was taken, the case is for the jury.

      Evidence — Writings—Duplicates.
    Where an exact carbon copy of an original paper is made on a typewriter at the same time as the original, signed by the same persons, executed in the same manner, and in every respect is an exact duplicate, -one being delivered, the other preserved, both may be considered originals, and the one preserved may be offered in evidence without notice to produce the one delivered.

      Eminent domain — Condemnation of quarry — Damages—Measure of damages.

    In a proceeding to assess damages for the loss of a quarry condemned for public use, the measure of damages is the actual value of the stone in place, not the prospective and speculative value of that stone when cut and sold in the market. Any stone actually severed- from the ledge is personal property, and the measure of damages as to it, is its value at the place where appropriated.

      Argued Oct. 16, 1906.
    Appeal, No. 87, Oct. T., 1906, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1901, No. 14, on verdict for plaintiff in case of Edward Cole v. Ellwood Power Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from report of jury of view. Before Porter, P. J.
    At the trial it appeared that plaintiff had a parol lease, reserving royalties, of the bowlders and stone in and on a tract of land in the borough of Ellwood. He claimed that defendant had entered upon and seized the stone thereon.
    Plaintiff’s counsel proposed to show by the plaintiff and by other witnessess to be called, the damage that was sustained by the plaintiff by reason of the appropriation and taking of the stone on the plaintiff’s lease. Also, proposed to show by this and succeeding witnesses to be called, the market price of curbstone at that time, the quantity of curbstone that could be made from the stone on the plaintiff’s lease, the cost of making the curbstone and putting them on board the cars and the royalty that was to be paid by the plaintiff to the Pittsburg company, and claimed when these facts were shown they had shown the damage which the plaintiff had sustained.
    Defendant’s counsel object as incompetent, irrelevant and immaterial.
    The Court: It seems to the court the principle laid down in 84 Pa. page 333, is the proper rule of damages in this case, and we are unable to see it in any other light than that mentioned, that the measure of damages is the value of the product in the market, less the cost of transportation, quarrying and royalty. The objection is therefore overruled, the offer admitted and an exception sealed for the defendant. [9]
    Defendant offered in evidence paper designated as exhibit “A.”
    Plaintiff’s counsel object as not being the best evidence and that there is no evidence whatever that any effort has been made by the defendant to secure the original. Also, it is denied that this is a copy.
    The Court: The objection is sustained and an exception sealed for the defendant. [4]

      “ Exhibit ‘ A.’ Defendant.
    “ Ellwood City, Pa., September 27,1900.
    “ To Samuel Koch, Esq.
    “You are hereby notified to discontinue quarrying stone on the property of this company and to remove immediately the stone already quarried south of the old Mill Site, as well as the derrick, tools, etc., used on large boulder from which you have hauled previous to last Monday, September 24.
    “ The royalty due this company must be paid, however, before the removal of derrick and machinery. No stone from the boulder on the edge of the creek will be permitted to be removed by the road which has heretofore been used and which is the property of this company.
    “You will also take notice that no further stone from your operations can be deposited on the property of this company at the derrick recently erected near the head of Lawrence avenue. “Yours truly,
    “ The Pittsburg Company,
    “ By H. W. Hartman, President.
    “ Attest:
    “ Samuel A. Roelofs,
    “ Secretary.”
    [Seal of Pittsburg Company.]
    Defendant presented these points:
    3. If the verdict of the jury should be in favor of the plaintiff it should be for the actual value of the stone in the ground, and they cannot take into consideration the price at which stone could have been sold after being mined and prepared for the market. Answer: Refused. [5]
    4. The jury cannot take into consideration the profit the plaintiff might have made if he had been able to quarry all the stone upon the land and sell the same. Answer: Refused. [6]
    5. The measure of damages is the value of the stone upon the land, subject to the payment of the royalty to the landowner. Answer: Refused, this point having been covered in our general charge. [7]
    The court charged, inter alia, as follows :
    [As we have already said, if you pass the first question in this case favorable to the plaintiff, you. then pass to the second question and ascertain the amount of damages, if any, he is entitled to receive. In taking up this question you should proceed to ascertain the damages under rules, prescribed by law. It is contended by the defendant that the value of the stone in place — that is, as they were there situated upon the land — is the measure of damages. It is our opinion, and we so instruct you, that the measure of damages applicable to this case is the value of the stone in the market less the cost of transportation, quarrying and preparing the stone, the royalty thereon and such other expenses as are necessary in placing the stone upon the market. Or, in other words, you will get the cost of transportation, cost of quarrying and preparing the stone, of royalty and such other costs and expenses necessary and incidental to placing the stone upon the market and the total thus obtained you will subtract from the market value of the stone, and the difference between the total cost and expenses thus obtained and the market value will be the damages.
    As to the amount of the various items of cost and expenses you have the testimony of different witnesses and from their testimony you are to ascertain the cost of placing the stone on the market, and from the market value, which you will ascertain from the testimony, take the cost and thus get the damages.] [8]
    Verdict and judgment for plaintiff for $8,625. Defendant appealed.

      Errors assigned among others were (4, 9) rulings on evidence, quoting the bill of exceptions ; (5-8) above instructions, quoting them.

      Walter Lyon, of Lyon, McKee Mitchell, with him B. A. Winternitz and James J. Lgoe, for appellant.
    The case is like Yeakle v. Jacob, 33 Pa. 376, where the court held that an absolute right to cut timber for fencing, was an interest in the land and within the statute of frauds and must be in writing, which case is approved and followed in Huff v. McCauley, 53 Pa. 206, where it was held that a contract that one might take coal for his works from the land of another, must be by grant. So also is Bowers v. Bowers, 95 Pa. 477, where it is held that a contract for standing timber to be taken off at the discretion of the purchaser, as to time, is an interest in land within the meaning of the statute of frauds. This case is followed in Miller v. Zufall, 118 Pa. 317, and the same rule is laid down in Pattison’s Appeal, 61 Pa. 294; Neumoyer v. Andreas, 57 Pa. 446.
    If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party, and the other preserved, as they may both be considered as originals, and they have equal claims to authenticity, the one which is preserved may be received in evidence, without'notice to produce the one which was delivered: Philipson v. Chase, 2 Camp. 110; Eisenhart v. Slaymaker, 14 S. & R. 153; Gaskell v. Morris, 7 W. & S. 32; Morrow v. Com., 48 Pa. 305; Otto v. Trump, 115 Pa. 425; Davis v. Ins. Co., 5 Pa. Superior Ct. 506.
    The case at bar is ruled by R. R. Co. v. Balthaser, 119 Pa. 472, where a witness testified to fixing the value of the land by estimating the quantity of stone under the land and calculating its value: Searle v. R. R. Co., 33 Pa. 57; R. R. Co. v. Patterson, 107 Pa. 461; Reiber v. R. R. Co., 201 Pa. 49; Hamilton v. R. R. Co., 190 Pa. 51; Phila. Ball Club v. Phila., 182 Pa. 362; Phila. Ball Club v. Phila., 192 Pa. 632; Kossler v. R. R. Co., 208 Pa. 50.

      J. Norman Martin, for appellee.
    It is not necessary that a lease of a mine or quarry should be in writing: Moore v. Miller, 8 Pa. 272; Huff v. McCauley, 53 Pa. 206; LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Pa. 353.
    If, then, the Pittsburg company could not deprive the licensee of the benefit of his expenditure, clearly the appellant had no right which arose above that of the owner of the fee: Robbins v. Farwell, 193 Pa. 37.
    A right to use a mine necessarily implies a right to possess it; and a grant of the use and possession, in consideration of something to be rendered is exactly what constitutes the lease of the thing to be possessed: Offerman v. Starr, 2 Pa. 394; Brandt v. McKeever, 18 Pa. 70; Johnstown Iron Co. v. Cambria Iron Co., 82 Pa. 241; Harlan v. Lehigh Coal & Nav. Co., 35 Pa. 287; Clement & Masser v. Youngman, 40 Pa. 341.
    January 7, 1907 :
    Even a license to do something on the licensor’s land, when followed by expenditures on the faith of it, is irrevocable, and is to be treated as a binding contract: LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267 ; Swartz v. Swartz, 34 Pa. 353; Ebner v. Stichter, 19 Pa. 19 ; Huff v. Mc-Cauley, 53 Pa. 206 ; Grove v. Hodges, 55 Pa. 504 ; Johnston v. Cowan, 59 Pa. 275; Tront v. McDonald, 83 Pa. 144; Kemble Coal & Iron Co. v. Scott, 90 Pa. 332; Woodward v. Tudor, 81 * Pa. 382; Putnam v. Tyler, 117 Pa. 570; Hutchinson v. Kerr, 3 Pennypacker, 122; Eberly v. Lehman, 100 Pa. 542.
    The law as to the measure of damages was properly stated by the court: Ege v. Kille, 84 Pa. 333; Lehigh Coal Co. v. Wilkesbarre, etc., R. R. Co., 187 Pa. 145; Morris; etc., Coal Co. v. Delaware, etc., R. R. Co., 190 Pa. 448; Railroad Co. v. Gilson, 8 Watts, 243; R. R. Co. v. Stay man, 2 W. N. C. 103; R. R. Co. v. Balthaser, 126 Pa. 1; Oak Ridge Coal Co. v. Rogers, 108 Pa. 147 ; Graham v. Railroad Co., 145 Pa. 504 ; Coleman’s App., 62 Pa. 252.
   Opinion bv

Mr. Justice Elkin,

Three questions are raised by this appeal, first, had appellee such an interest in the rocks and bowlders as to entitle him to compensation when appropriated; second, if his right to quarry was limited as to time, had notice to terminate the lease been served before the entry of appellant, and third, what was the proper measure of damages ? It is contended for appellant that the right claimed by appellee in the quarry, is an interest in land, without limit as to time and within the statute of frauds. If this principle can be successfully invoked there can be no recovery, because the contract relied on to assert an interest is in parol. Yeakle v. Jacob, 33 Pa. 376 ; Neumoyer v. Andreas, 57 Pa. 446 ; Pattison’s Appeal, 61 Pa. 294 ; Bowers v. Bowers, 95 Pa. 477 and Miller v. Zufall, 113 Pa. 317 are cited in support of this contention. These cases all relate to contracts for the sale of standing timber and the rule deducible therefrom is, that when the grant is for a perpetual right to cut, or for an indefinite period in which to remove, or at the discretion of the vendee, without a view to immediate severance, it is within the statute of frauds and must be in writing. The rule in such cases has been strictly enforced. There is, however, another line of decisions of a different import, running parallel with the timber cases, and as uniformly observed. LeFevre v. LeFevre, 4 S. & R. 241; Rerick v. Kern, 14 S. & R. 267; Swartz v. Swartz, 4 Pa. 353; Ebner v. Stichter, 19 Pa. 19, belong to the latter class. In these cases the rule is recognized that if a license, or privilege, to do something on the land of the licensor, is given by parol, then followed by the expenditure of money, on the faith of the parol agreement, it is irrevocable and is to be treated as a binding contract. Equity treats the license thus executed as a contract giving absolute rights, and protects the licensee in the enjoyment of those rights. Again, in Moore v. Miller, 8 Pa. 272, this court held that a parol agreement to enter upon the land of another for the purpose of digging ore, erecting buildings and doing other necessary things in the prosecution of the work, paying for the privilege a certain fixed royalty for each ton of ore mined and removed, was a contract of lease and could be enforced. The present case comes within the rule of these decisions, and the question of the statute of frauds may be eliminated from-further consideration. It is important, however, to consider what the exact terms of the parol agreement are in order to ascertain the rights of the parties to this action. Was the privilege to quarry stone limited to the year when given, the “stone year” as suggested in the testimony of Hartman, or was it to be enjoyed for an indefinite period, or at the discretion of the licensor ? If the right was for a limited period, then it could be terminated at the expiration of that time. It is contended that it was so terminated by notice to quit before the rights of appellee had attached. These are questions of fact to be submitted to and determined by the jury under proper instructions by the court. In this connection the ruling of the court below, in not permitting duplicate notice of September 27,1900, to. be admitted in evidence and considered by the jury, is assigned as error. The offer was refused on the ground that it was secondary evidence and that the testimony did not disclose any effort to secure the original. The testimony showed that it was an exact carbon copy, made on a typewriter at the same time as the original, signed by the same officers, executed in the same manner, and in every respect was an exact duplicate. The one was served, the other remained in the possession of the owner of the land. Appellant contends, that, as both were contemporary writings, the counterparts of each other, one of which was delivered and the other preserved, they may both be considered as originals, and the one which was preserved may be received in evidence without notice to produce the one which was delivered. This contention is based on the rule of our cases and must be sustained : Eisenhart v. Slaymaker, 14 S. & R. 153; Gaskell v. Morris, 7 W. & S. 32; Morrow v. Commonwealth, 48 Pa. 305. The duplicate notice should have been admitted in evidence and the refusal so to do was error.

The court below held that the proper measure of damages was, not the value of stone in place, but the value of the stone after it had been manufactured into curbstone, and sold in the market, less the cost of preparation, transportation and royalty. With this rule as to the measure of damages, witnesses were permitted to testify how much curbstone could be cut from the bowlders and how much it would sell for in the market, what the cost of manufacturing and transporting the same would be, the difference being the measure of damages to the appellee. Ege v. Kille, 84 Pa. 333 is relied on as ruling the case. It is true that such a measure of damages was sustained in that case, but that was an action of trespass for mesne profits between private parties, each of whom claimed title to the land in dispute, and, the title of Ege having been sustained, he brought an action against Kille to recover the mesne profits during the time that Kille had possession of the land and had actually taken the ore from the mines. Coleman’s Appeal, 62 Pa. 252, and Oak Ridge Coal Co. v. Rogers, 108 Pa. 147, belong to this class of cases. In Graham v. Railroad Co., 145 Pa. 504, the distinction between the measure of damages arising out of a trespass and the assessment of damages accruing to the owner of property, taken under the right of eminent domain, was clearly pointed out. The learned counsel for appellee earnestly contends that the case at bar is an action to recover damages for a trespass. In this is the vice of his argument. This is not an action for trespass in the sense of the owner of land instituting proceedings against a person who had entered upon his property without authority of law. The appellant here had the legal right, conferred by statute, to go upon the property of appellee and to appropriate the same to its own use. The rule as to the proper measure of damages in this case is found in Searle v. Railroad Company, 33 Pa. 57; Railroad Company v. Balthaser, 119 Pa. 472 ; Fulmer’s Appeal, 128 Pa. 24, and many other like cases. The rule of these cases has never been departed from except where there had been actual severance of the coal, or ore, or stone, or other thing, the value of which was the basis of the proceedings. The proper measure of damages in this case is the actual value of the stone in place, not the prospective and speculative value of that stone when cut and sold in the market. The appellant under the law had the right to appropriate the rocks and bowlders and should pay appellee for his interest in the stone in place what that interest was worth at the time the appropriation was made. There is one item that must be treated separately in determining its value. The appellee testified that at the time of the entry there were about 500 or 600 yards of rubble backing on the ground which had already been severed from the bowlders, and that it was appropriated by appellant. It is well known that rubble stone is of irregular shapes and sizes, broken from larger stone in the process of quarrying or preparing the same for market. It is used in masonry for filling in between other courses of cut stone or for backing. While rubble backing cannot be prepared into cut stone, and is not expensive, it has a value. Its severance from the ledge made it personal property, and the proper measure of damages is its value at the place where appropriated. In determining that value it will not be necessary to consider the cost of manufacturing and transporting the same as in Lehigh Coal Co. v. Railroad Co., 187 Pa. 145, because its value can be easily and definitely fixed at the place of its location when the appropriation was made.

The fourth, fifth, sixth, seventh, eighth and ninth assignments of error are sustained.

Judgment reversed with a venire.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Douglas v. Hustead, Appellant.

      Vendor and vendee — Option—Principal and agent — Defeat of option— Tender.

    Where the agent of a vendor wrongfully refuses to deliver a deed to the vendee on the final day for the declaration of an option, and it appears that the vendee is ready and willing on that day to take the land, the vendor cannot take advantage of his agent’s misconduct or mistake; nor is anyone having a second or a top option with a knowledge of the previous one in any better position. The vendee in such a case is not required to make a formal tender of the money after the agent of the vendor has declared that he will not deliver the deed.
    Where acts to be done by the parties are mutual and to be performed at the same time, it is only necessary for the plaintiff to aver that he was ready and willing to perform his part.
    Argued Oct 15, 1906.
    Appeal, No. 40, Oct. T., 1906, by defendants, from judgment of C. P. Greene Co., Feb. T., 1902, No. 38, on verdict for plaintiff in case of John S. Douglas v. James M. Hustead et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Ejectment for land in Greene township. Before CrawEORD, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [You have learned, gentlemen of the jury, that if this second option was taken subject to the first, which seems to have been admitted here, and the parties who took this coal had notice of the option held by Mr. Douglas, it would be subject to that, and their rights would be subservient to whatever rights Douglas had, provided any rights accrued to him under his contract. These facts I take it are practically undisputed.] [1]
    [As I recall Mr. Roby’s testimony, it was his understanding, when he inclosed his paper to Mr. Douglas, that Mr. Douglas was to close up with whoever he succeeded in selling the coal to. The matter is just this, gentlemen of the jury, if that was the agreement of the parties and they afterwards incorporated that in the option by parol, by agreeing to transfer the coal in that way, by the parties mentioned, and you are satisfied these steps were taken with the knowledge and consent on the part of Mr. Roby and Mr. Henderson, as I take it, they would be bound here by the transaction as it occurred, because Mr. Kyle’s employment as attorney or agent would operate just as firmly against them as anybody.] [2]
    [There has been some discussion as to the agency of Mr. Kyle. You must remember Mr. Douglas was operating under a contract partly in his own behalf and partly in their behalf, and if he employed Mr. Kyle to close the matter up, and it is a practical and reasonable thing to do in matters of this kind, to have the services of an attorney, where legal title is to be passed and money to be paid, Mr. Douglas would have a perfect right to do that, in order to close the transaction up in that way. A man’s agency is not limited by what his principal may have told him, but by what the apparent scope of .his authority is, and by what, under the circumstances, he would reasonably be expected to have a right to do; not by what his principal may have told the agent to do, but by what he does do and by all surrounding circumstances and facts of the case, which- the principal ought, with due prudence and care, know that he is doing, or if he does not know he is doing, has opportunity to know. It does not strike me that Mr. Kyle was the agent of the oné party more than the other; you may say he was agent for all the parties, as well Mr. Henderson and Mr. Roby as Mr. Douglas. So it all comes to a question of fact for you to determine what this contract was and how it was carried out.
    If the plaintiff did all he says he did in good faith, and all he could be expected to do, then these parties are bound by it, and the plaintiff ought to recover a verdict here at your hands for the premises described in the writ. Of course he is to pay what he has already offered to pay, the amount of the purchase money he agreed to pay, or $29.00 an acre for the coal.] [3] [As to the conversation on January 1, when Mr. Henderson called Mr. Douglas to the telephone and notified him he considered the contract at an end — if you will go back to the contract to the beginning, their undivided two-thirds of the coal was conveyed to Mr. Peters, making him the trustee for Roby and Henderson, and I do not take it that the defendants had a right to rescind this option in that way, abruptly on January 1, by verbal notice, that all rights ceased on the part of Douglas.

      It strikes me, if he expected to enforce a specific performance in the payment of the purchase money, in other words, if they expected on that particular day to exact this money from Douglas, they should have taken the steps necessary to see that Mr. Peters, who held the title, was ready to transfer that over and if they let that go by without doing that much on their part, or without giving some protection to Mr. Douglas in that regard, they could not rescind the contract without reasonable notice, that being the rule of contracts in that regard.
    Where there are mutual benefits or mutual rights between parties and a time fixed for the performance of an act without either party performing their reasonable parts, neither party could rescind without notice to the other.] [4]
    [I instruct you, if you believe this evidence, that the deed was withheld by Mr. Kyle in that way, not through the fault of Mr. Douglas, but through some direction from Mr. Peters as to the distribution of the proceeds. Mr. Douglas’ interest is not affected here. The other parties having agreed that he should sell and the conveyance be made to his assigns, his rights are not affected here; and more particularly where there is a top option here at what appears to be a higher price. Of course it would be to the interest of Roby and Henderson that the option should not be executed if they could sell at a higher price. The law would require them to act in good faith, and if Douglas, the plaintiff, prosecuted his rights under the contract in good faith, and was ready to pay for the coal he had bought, and if the evidence is believed by you, he has done all in his power, then these parties should be made to convey the whole premises in consideration of the money he agreed to pay for it.] [5]
    [You have heard the testimony of Mr. Kyle as to the conversation that took place between him and Mr. Henderson at Uniontown, Mr. Kyle communicating to Mr. Henderson that Mr. Peters, one of the parties or owners of the coal, was getting $32.00 an acre, and the others perhaps getting $29.00, and that Mr. Henderson expressed dissatisfaction at that. You will recall in that connection, gentlemen of the jury, that the contract between Douglas and Anderson and Peters was an entirely independent contract, not connected with the option of Roby and Henderson with Douglas, and they have no reasonable or just grounds for complaint on that accord. As Mr. Henderson promptly admitted on the stand that whatever the contract was between Mr. Peters and the parties he sold to was nothing to him.] [6]
    Plaintiff presented these points :
    1. If the jury believe from the evidence, that W. J. Kyle, was the agent properly constituted and appointed by all the parties then in interest, to wit: Roby, Henderson, Peters and Douglas, to close the deal for the premises in dispute to James Evans, and that in pursuance of said agency, the said agent had in his possession, prior to December 30,1900, a deed which was duly executed and acknowledged by the said Peters, in whom was the complete paper title, conveying the same to the said James Evans, for delivery to Mr. Evans on payment of the purchase money; and if the jury shall further believe from the evidence that prior to December 30, 1900, J. W. Ray, as attorney for the said James Evans, tendered to the said agent, W. J. Kyle, the check of James Evans for the whole amount of the purchase money, due the said Roby and Henderson, and demanded the delivery of the deed, which deed was then in said agent’s custody, and that the agent made no objection whatever to the said check, but on the contrary, expressed an entire willingness to accept the same, but refused to deliver the deed, that then the tender so made was sufficient in law and binding and conclusive upon the said Roby, Henderson and Peters. Answer: That proposition is affirmed in connection with the facts in this case if you so find them. [7]
    2. The covenants contained in the contract in suit, dated October 6, 1900, are mutual and dependent, and it was as much the duty of the vendors therein to tender a deed for the premises in question, as for the vendee to tender the purchase money, and if the time fixed for the payment of the purchase money, and the delivery of a deed was allowed to pass by without either a tender of the purchase money or a tender of the deed, then the time for performance of the parties became indefinite, and neither could rescind the contract without at least reasonable notice to the other. Answer ; Now that proposition is correct in the way in which I have already indicated to you; that it was incumbent upon these parties if they intended to exact the purchase money at that time, it was his duty to see that the trustee, who had the paper title, would do what was incumbent on their part in the way of a transfer of their interest. [8]
    Defendant presented these points :
    2. Under the contract between Roby and Henderson, defendants’ vendors, and the plaintiff, if otherwise entitled to recover, plaintiff must show a legal tender of the money due from himself to said Henderson and Roby as a prerequisite to his right to bring this action. Answer: That proposition is correct but you must remember what facts are shown here to which I have already called your attention. If the facts are as detailed by the plaintiff, that an agreement was made by which the deed .was to pass from Peters to Evans and they knew what was being proposed, then the tender to Mr. Kyle would be a tender to them, because it was carrying out the agreement they entered into., [9]
    3. Under the circumstances of this case, unless the said Henderson and Roby authorized the conveyance of their interest by a deed for the whole, made by E. M. Peters to James Evans, to be placed in the hands of W. J. Kyle for delivery, there was" no proper or legal tender made. Answer: That proposition is correct, but it would not be necessary to find there were specific directions to Mr. Kyle. If there were directions to Mr. Peters, Mr. Kyle, acting as attorney for Mr. Peters, as much as Mr. Douglas, that would bind Roby and Henderson. [10]
    4. If the jury believe from the evidence, that W. J. Kyle, in holding the deed from E. M. Peters to James Evans, and in treating with Evans’ attorneyin regard to the delivery thereof, was acting as the agent of E. M. Peters, a tender to him would not be a valid tender, and would not bind the said Henderson and Roby. Answer: I cannot concur on that proposition; I think it would. Mr. Peters, acting under written instructions from Roby and Henderson, I think it would be binding on these parties, so far as Douglas’ rights in the matter are concerned, he having done nothing to vitiate his contract. [11]
    Verdict and judgment for plaintiff. Defendant appealed.

      JSrrors assigned among others were (1-11) above instructions, quoting them.

      Thomas S. Crago, for appellants.
    In saying to the jury that it was necessary for Roby and Henderson to do more than they had done, or words to that effect, the court was instructing the jury that Roby and Henderson were in default, and was putting a construction on the contract, with Douglas, which the contract itself does not justify : Dauchy v. Pond, 9 Watts, 49; Jeffrey v. Pennsylvania Mining Co., 204 Pa. 218.
    January 7,1907:

      J. W. Ray, with him W. J. Kyle and S. M. Smith, for appellee.
    “The tender of a check is good if no objection be made : ” McGrath v. Gegner, 77 Md. 331 (26 Atl. Repr. 502) ; Mitchell v. Vermont Copper Min. Co., 67 N. Y. 280; Becker v. Boon, 61 N. Y. 317; Jennings v. Mendenhall, 7 Ohio, 257; Sloan v. Petrie, 16 Ill. 262; Thorn v. San Francisco, 4 Cal. 127; Pershing v. Feinberg, 203 Pa. 144.
    The authorities are uniformly to the effect that where performance of a contract is prevented by either party thereto no advantage can be taken by the party causing the failure : Vankirk v. Patterson, 201 Pa. 90; Chahoon v. Hollenback, 16 S. & R. 425.
   Opinion by

Mr. Justice Stewart,

The legal title to the land that is the subject of this controversy was in one E. M. Peters; the actual ownership was in Peters, Henderson and Roby, who each held a one-third interest. Peters had given an option on his one-third to Henderson, who had assigned it to the plaintiff, John S. Douglas. Subsequently, on October 6, 1906, Douglas procured an option from Henderson and Roby for their interests. It is this latter option that concerns us in the present inquiry, since the action in the court below related only to the interests of Henderson and Roby. By the terms of this option Douglas was to have until the 80th of October following to indicate his acceptance of the land, at the rate of $29.00 per acre, the purchase money to be paid on or before the 30th of December following. Within the period fixed, . Douglas gave written notice of his accept-, anee, and the option thereupon became a contract of sale. Peters, holder of the legal title, lived in the state of Ohio ; Henderson, Roby and Douglas resided in Uniontown, Pennsylvania, and the land was in Greene county. While the agreement was for a sale to Douglas, it was in contemplation* of the parties that he would market the property, and find a purchaser at an advanced price for his own advantage. By the common understanding the interests of Henderson and Roby were to pass to the vendee by 'the conveyance from Peters of the legal title. Douglas assented to this arrangement, was willing to accept such title, and both Henderson and Roby understood and acted upon it. There was no suggestion of separate conveyances or releases from them. Acting upon this understanding, Peters executed a deed for the entjre tract to Evans, Douglas’ appointee, and forwarded it, in advance of the period fixed in the agreement for the completion of the contract, to W. J. Kyle, Esq., an attorney at law in Waynesburg, with written instructions as follows : “ You will deliver the deed to Mr. Evans or Mr. Douglas, as the case may be, upon their payment to me of 12,482.64.” This deed was submitted by Mr. Kyle to J. W. Ray, Esq., attorney for Evans, for the latter’s examination and approval. On December 30, the last day for payment, Mr. Ray presented to Mr. Kyle, Evans’ check for the full amount of the purchase money, and demanded the deed. Mr. Kyle testifies that he knew Evans, knew that the check was perfectly good, that he made no objection to it as insufficient tender, but declined to receive it and deliver the deed, because Peters had instructed him by the letter in which he had forwarded the deed to him, to apply SI,100 of Henderson’s share of the money in a way that he was not sure Henderson would approve. His explanation is that he did not care to take the responsibility of receiving Henderson’s money, and pay it out to somebody else without directions from Mr. Henderson, and that he therefore declined to deliver the deed. He further testifies that he told Mr. Ray that he would go to Union-town and try to see Henderson, and if everything was all right he would deliver the deed when he came back. The next day, January 1, Henderson notified Douglas that bis option had expired, and because he had not paid the money he could not have the land. Prior to December 30, and subsequent to Douglas’ acceptance, Henderson and Roby had given to one Van Dusen, what is called a top option at 132.00 per acre on the same premises; that is to say, an option that would operate only in case Douglas failed to take the land. Under this latter option, and after Henderson and Roby had declared the earlier one at an end, tire premises were sold to the defendants in the present action. On the trial of the case, it being an ejectment brought by Douglas for the recovery of the two-thirds interest, it was not pretended that the defendants were purchasers without notice of the outstanding contract with Douglas, but it was averred in defendant’s abstract of title, that the contract with Douglas was not binding on Henderson and Roby on March 20, 1901, when they conveyed to defendants. The evidence was undisputed that Van Dusen’s option which secured the sale to the . defendants, was in terms subject to the prior option. The court was entirely correct in charging that the defendants’ rights were subordinate to whatever rights Douglas had. It appears that Henderson and Roby had each authorized and directed Peters to settle and adjust their respective shares of the purchase money with Douglas. Upon the trial of the case, and here as well, undue significance was given to this circumstance. In our view of the case it was of little if any importance. The case turns upon the relation of the parties to each other; but that Douglas was authorized to receive from Peters the shares of Henderson and Roby, can in no wise affect the relation in which Kyle stood to all the parties in the transaction; and in any aspect of the case, this latter must be regarded as a controlling consideration. Peters was not simply the trustee of Henderson and Roby for their interests in the land, but he was their agent as well for the transmission of the title in completion of the contract. This much they had committed to Peters; they themselves were not actively to participate at all; Douglas was to look to Peters for his deed. In depositing the deed with Kyle for delivery upon payment of the purchase money, Peters was well within his' authority, and was acting for Henderson and Roby as much as for himself. Kyle became Peters’ agent and representative; whatever he might do as such agent to the prejudice of those he represented, by no act of his could he prejudice the rights of the party entitled to the deed. When the last day for compliance arrived, by the conduct of the parties, including Henderson and Roby, Douglas was in this position: if he was then to complete his purchase, it could only be through Kyle who held the deed as agent for the vendor; and Kyle had positively refused to deliver the deed under any considerations, not because of default on the part of Douglas, but because of circumstances which he thought affected himself, promising to deliver it on some subsequent day, if he found everything right. The time admitted of no appeal to the vendors themselves; who resided at a distance. On this exhibit of the facts there can be no dispute as to the law of the case. The default was not on the part of Douglas; he was there at the appointed time, and in readiness to perform. Under the circumstances, this was all that could be required of him. The nature of the transaction, and the object of the parties, show that the covenants of the parties were mutual and dependent. The vendors were to deliver the deed; the vendee to pay the purchase money. As was said in Wagenblast v. McKean, 2 Grant, 393, a party is not bound to part with his money without the consideration upon which it is to be paid. In view of Kyle’s positive refusal to deliver the deed on that day, actual tender of the money was not required. “In the case of Rawson v. Johnson, 1 East, 203, the question was fully considered, and the difference between a tender .and a readiness to perform recognized and explained. In the case of a tender the money must be offered unconditionally, and the offer is an acknowledgment that it is absolutely due. But in the case of concurrent promises, or where it is payable upon the performance of some act by the opposite party, no such unconditional offer of tender is required. . . . Lord Kenyon’s remark that ‘ in administering justice we must not lose sight of common sense, and that where in such a case, the defendant is unwilling to comply with his contract, it is a useless ceremony to lay the money down and take it up again,’ is sound law: ” Wagenblast v. McKean, supra. The same doctrine is repeated in Williams v. Bentley et al., 27 Pa. 294. It is there said “ Where the debt is due on a contract executed, and the party to whom it is payable is entitled to it without the performance of anything on his part, and the object of the debtor is to discharge himself from an action for it, an actual tender in the legal sense of the term, is necessary unless dispensed with; . . . . but where the acts to be done by the parties are mutual, and to be performed at the same time, it is only necessary for the plaintiff to aver that he was ready and willing to perform his part. In such case the term ‘ tender ’ does not express with precision the nature of the act to be performed by the plaintiff to enable him to maintain the action.”

While it is difficult to understand the reason assigned" by Kyle for his refusal to deliver the deed, his good faith in the matter is not questioned. It does not concern us to inquire into the adequacy of the reason; that concerns none but Kyle andi those for whom he was acting ; his act was their act, and fixed upon them a clear and unmistakable default under the terms of the contract. Manifestly they were not in position on the following day, or any time thereafter except upon notice, to declare the contract at an end. Douglas’ rights remained as they were; nothing that occurred subsequently affected them in any way. He continued to assert his rights under the contract, and nothing more was required of him to preserve his status with respect to it, in view of the defendant’s persistent refusal to recognize the contract. To allow Henderson and Roby to take advantage of their own default, to escape from the contract with Douglas, and thereby give effect to another of larger advantage to themselves relating to the same subject-matter, would not only be inequitable but would offend against common honesty. Whether the conduct of Kyle in connection with the deed be regarded as constituting a default by the vendors, or as an agreement between him and the vendee for an enlargement of the time for the completion of the contract, no particular date being fixed, the result would be the same. In either case the rights of the vendee would remain unaffected.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Weaver v. Sides, Appellant.

      Vendor and vendee — Option—Coal land — Construction of agreement.

    Where a vendor sells at the option of the vendee, and agrees to convey coal by good and sufficient deed within eighteen months from date, and the vendee agrees to pay, apart from hand money, one-third in nine months, and the balance in eighteen months, deferred payment to be secured by mortgage, “in case the land upon examination is found satisfactory,” the option is to be exercised within nine months from the date of the agreement,

      Argued Oct. 15, 1906.
    Appeal, No. 53, Oct. T., 1906, by-defendants, from judgment of C. P. Indiana Co., June T., 1903, No. 219, on verdict for plaintiff in case of J. H. Weaver v. John Sides and Matilda A. Sides, his wife, and Ann Barnes.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Ejectment for land in Green township. Before Patton, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    [As we construe this agreement, the first thing that was necessary for Mr. Sides to do was, as the article says, “ present to Mr. Weaver a good and sufficient deed, clear of all incumbrances.” If that had been done the day that agreement was written, on March 21, 1901, then it would have been Mr. Weaver’s duty, in nine months from that day, to have paid the ■ one-third of the purchase money, and in eighteen months from that day to have paid the balance of the purchase money. But there was a covenant that Mr. Sides had eighteen months in which to fulfill the agreement; that I take it meant that he had eighteen months to prepare a good and sufficient deed clear of incumbrances.] [3] There may have been judgments against this property, there may have been outstanding liens and incumbrances, and therefore this agreement provided that Mr. Sides was not bound to tender the deed until eighteen months from that date, namely, until September 20, 1902. At that time Weaver tendered him the purchase money, and he has followed it up by a tender in court. [In our opinion Mr. Weaver has complied with all the law required him to do under this agreement. As we view the law, it would be your duty in this case to render a verdict for the land described in the writ against John Sides and Ann Barnes. . . .
    In this case, gentlemen, your verdict should be in favor of the plaintiff, J. H. Weaver, and against John Sides and Ann Barnes, for the land described in the writ.] [4]
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (3,4) above instructions, quoting them.

      January 7, 1907 :

      J. N. Banks, with him William Banks, for appellants.
    An agreement to sell land with no obligation on the other party to buy, and vendor to make a deed on specified notice from the other party, but no obligation to give such notice, is an option and time is of its essence: Swank v. Fretts, 209 Pa. 625 ; McMillan v. Philadelphia Co., 159 Pa. 142; Neill v. Hitchman, 201 Pa. 207.

      D. B. Taylor, with him C. E. Sprout, for appellee.
    If an acceptance is not made within the time fixed, the owner is no longer bound by his offer and the option is at an end: McMillan v. Phila. Co., 159 Pa. 142.
    The contract is clear and unambiguous; the parties are bound by its plain words: Shafer v. Senseman, 125 Pa. 310.
    The case of Swank v. Fretts, 209 Pa. 625, relied upon by the appellants to sustain their contention that the limit of time for acceptance is the date fixed for the first payment, is not in point. In that case there was no time limit in the option; there was a provision that a failure to make the first payment within fifty days from the date should render the agreement null and void. The court held that to be the apparent limit of time for acceptance; no notice of acceptance was given until more than two years after the date of the agreement.
   Opinion by

Mr. Justice Mestrezat,

This is an action of ejectment brought by J. H. Weaver, the plaintiff, and the appellee here, against the defendants, the appellants here, to recover the coal underlying 150 acres of land in Green township, Indiana county, which John Sides and his wife sold the plaintiff by a contract in writing dated March 21, 1901. The right of the plaintiff to recover turns upon the proper construction of the agreement. The' parts of the contract involved in this controversy are as follows: “ The said parties of the first part (John Sides and wife) hereby bargain and sell unto the party of the second part (J. H. Weaver) .... at the option of the said parties of the second part, and agree to convey to them, their heirs or assigns, by good and sufficient deed, clear of all incumbrances, within eighteen months from date, all the coal together with the right to mine, coke and carry away the same, underlying that certain tract of land situate in Green township Indiana Co., Pa.....containing 150 acres; in consideration whereof, the said party of the second part hereby covenant and agree to pay .... unto the said parties of the first part .... the sum of twenty dollars (120.00) per acre, 10 dollars on the execution thereof, .... and the balance payable as follows : one-third in (9) nine months and the balance in eighteen months from this date, deferred payments to be secured by bond and mortgage on the coal conveyed, in case the land upon examination is found satisfactory, and the parties of the second part elect to take the same upon presentation and delivery of good and sufficient deed clear of all incumbrances, granting all mining and coking rights.”

On the trial of the cause, it appeared that Weaver served a written notice on John Sides and his wife, the vendors, on September 20, 1902, one day prior to the expiration of eighteen months from the date of the agreement, that he elected “ to take the coal and coal privileges mentioned in said option ; the tract of land contains 150 acres and is situate in Green township.” So far as the evidence discloses, Weaver did not comply with that part of the agreement which required him to pay one-third of the purchase money in nine months, nor does it appear that he exercised his option to accept the coal other than by the notice above referred to. The learned trial judge charged the jury that the first thing that was necessary for Mr. Sides to do was, “ as the article says, present to Mr. Weaver a good and sufficient deed, clear of all incumbrances,” and if that had been done on the date of the agreement, it would have been Weaver’s duty in nine months thereafter to have paid the one-third of the purchase money and in eighteen months to have paid the balance of the purchase money; that Weaver complied with the contract in tendering to Sides the purchase money just prior to the expiration of eighteen months from the date of the contract. In effect, the learned judge held that by the terms of the agreement it was the duty of the vendors in the first instance to tender a deed to Weaver and that he was required in nine months thereafter to make the first payment and in eighteen months to pay the balance of the purchase money, and that as the vendors had not tendered a deed and Weaver had tendered the purchase money within eighteen months from the date of the agreement, he had complied with the contract, and was entitled to recover the coal. Entertaining these views, the court directed a verdict for the plaintiff, on which judgment was entered and the defendants have taken this appeal.

We think the learned judge erroneously interpreted the contract of the parties. It was simply an option gi ven by the owners to Weaver to purchase the coal. They were not required to present Weaver with a deed, or take any other action concerning the sale until he had, as provided in the agreement, found the land satisfactory and had exercised his option and elected to purchase. Thereupon it was incumbent on the vendors to present Weaver with a “ good and sufficient deed, clear of all incumbrances.” Nor was Weaver required to accept a deed for the coal and thereby convert the option into a sale, until he had been given an opportunity to ascertain if the coal was satisfactory to him. By the agreement the option became a sale, and Weaver became a purchaser only “ in case the land upon examination is found satisfactory and the parties of the second part (Weaver) elect to take the same.” Weaver was, therefore, entitled to such time as the option gave him to examine the coal and determine whether it was satisfactory, and until he had advised the vendors of that fact they were not required to tender a deed, and he was not compelled to accept one.

When was Weaver to exercise his option to purchase the coal ? Clearly within nine months from the date of the agreement. This is conclusively shown by the terms of payment set forth in the contract. The purchase money, except the $10.00 hand money, was payable in two installments, in nine months and eighteen months respectively. One-third was payable in nine months after the contract was signed. But there could be no purchase money due because there was no sale until Weaver had elected to accept the coal. Until he had exercised his option to purchase, the installment due by the terms of the agreement in nine months was not payable, and the vendors could not have enforced payment by a suit. The option would not become a sale, and hence the purchase money would not become payable until action on the part of Weaver showing an acceptance of the coal. It is, therefore, apparent that as the parties agreed that one-third of the purchase money — the first payment — should be paid in nine months, that they contemplated that Weaver should exercise his option to purchase within that period. Such action by him would convert the option into a sale of the coal and make the purchaser liable for that installment of purchase money. This interpretation of the contract is confirmed by the subsequent provision that the balance or two-thirds of the purchase money was payable within eighteen months from the date of the agreement, and the deferred payment was “ to be secured by bond and mortgage on the coal conveyed.” This clause of the agreement manifestly contemplates an acceptance by Weaver of the coal within nine months and the delivery of a deed by the vendors, in order that a mortgage on the coal “ convejmd ” might be given by the vendee for the residue of the purchase money. If, as contended by Weaver, he had eighteen months to exercise his option to purchase, the entire purchase money would then be due and payable, and there would be no occasion for a bond and mortgage, as there would be none of the purchase money to secure. All the purchase money was due and payable within eighteen months from the date of the agreement, and if the coal had been accepted the vendors after that date could have compelled its payment. If, however, the vendee’s interpretation of the agreement is to prevail, this clause of the agreement would, at his option not to elect to purchase until immediately prior to the expiration of the eighteen months, be wholly unnecessary, and must be disregarded and treated as inoperative. But this construction is contrary to the well-established rule applied in the interpretation of written agreements which requires the agreement to be so construed that, if possible, all the parts thereof be given effect. The enforcement of this rule requires the agreement to be construed as an option exercisable within nine months, and that it was the duty of the vendors, upon the acceptance of the coal within that time, to tender “ a good and sufficient deed, clear of all incumbrances,” to Weaver, who was required to pay the installment of purchase money then due and secure the deferred payment, in the language of the contract, “ by bond and mortgage on the coal conveyed.”

The option was crudely and inartificially drawn, but its tenor and the intention of the parties may be ascertained by interpreting the instrument as a whole. Our construction gives effect to every part of it, and manifestly carries out the intention of the parties. We are, therefore, of the opinion, that the learned trial judge erroneously interpreted the contract entered into by the parties, and should not have directed a verdict for the plaintiff.

The fourth assignment of error is sustained, the judgment is reversed, and judgment is now entered for the defendants.


text:
    Marquis, Appellant, v. McKay.

      Affidavit of defense — Promissory note — Practice, C. P.

    In an action upon a promissory note it was averred in the affidavit of defense that the note in suit was given and accepted as a guarantee for the payment of certain money loaned by plaintiff to a corporation in which both plaintiff and defendants were alike interested financially; -that the makers of the note were to be called on to pay only in the event that the corporation was unable, and then only such amount as was not recoverable from the corporation; that the corporation had assets more than sufficient to answer its liability; and that the plaintiff himself was debtor to the corporation in an amount exceeding the amount of the note in suit. Held, that the affidavit of defense was sufficient to prevent judgment inasmuch as the true result in the case could only be reached by a broad and full inquiry into the facts averred.
    Argued Oct. 15, 1906.
    Appeal, No. 66, Oct. T., 1906, by plaintiff, from order of C. P. Lawrence Go., discharging rule for judgment for want of a sufficient affidavit of defense in case of M. S. Marquis v. Robert I. McKay et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Porter, P. J.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of the court.

      Wylie McCaslin, for appellant.

      January 7, 1907:

      H. A. Wilkison, for appellee.
   Opinion by

Mr. Justice Stewart,

This is an appeal from the action of the court below discharging a rule for judgment for want of a sufficient affidavit of defense. It is averred in the affidavit, that the note in suit was given and accepted as a guarantee for the payment of certain money loaned by plaintiff to the Boston and Seattle Mining Company, in which both plaintiff and defendants were alike interested financially; that the makers of the note were to be called on to pay only in the event that the mining company was unable, and then only such amount as was not recoverable from the company; that the company had assets more than sufficient to answer its liability; and that the plaintiff himself was debtor to the company in an amount exceeding the amount of the note in suit. The court being of opinion that the true result in the case could only be reached by a broad and full inquiry into the facts averred, discharged the rule. We see in the case no sufficient reason for dissent. While the plaintiff is entitled to a writ of error to an order of the court discharging a rule for judgment for want of sufficient affidavit of defense, we have said that the statutory provision allowing it was intended to reach only clear cases of error in law, and thus prevent the delay of a trial; that such writs should be confined to cases of this character, and that in doubtful cases, especially in those requiring broad inquiry into the facts, where the court refuses judgment, the matter in controversy should go to the jury as a proper tribunal to decide the case: Griffith v. Sitgreaves, 2 W. N. C. 707. We further said in Chartiers Railway Company v. Hodgens, 77 Pa. 187, that where the court below refuses judgment, and an appeal is taken which is not sustained, in remitting the case this court will not attempt any discussion of the principles of law involved. This case calls for no further comment.

The order of court discharging the rule is affirmed.


author: Mr. Justice Brown,

text:
    Connellsville Gas Coal Company v. Baltimore & Ohio Railroad Company, Appellant.

      Railroads — Eminent domain — Statute of limitations — Ejectment.
    A railroad company which has taken land for its right of way, without compensating the owner, cannot acquire title thereto by adverse possession. The owner may maintain an action of ejectment for the land, but an execution under the judgment recovered in such action, may be stayed by the court for a short period to enable the railroad company to proceed under the statute for the condemnation of the land.
    Submitted Oct. 13,1906.
    Appeal, No. 28, Jan. T., 1906, by-defendant, from judgment of C. P. Fayette Co., March T., 1905, No. 247, on verdict for plaintiff in case of Connellsville Gas Coal Company v. Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in Dunbar township. Before Rep-pert, P. J.
    At the trial the court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff.

      JError assigned was in giving binding instructions for plaintiff.

      Thomas H. Hudson, James R. Cray and D. W. McDonald, for appellant.
    The statute of limitations cannot be suspended in particular cases, while allowed to remain in force generally: Holden v. James, 11 Mass. 396; Gulf, C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150 (17 Sup. Ct. Repr. 255) ; Yick Wo v. Hopkins, 118 U. S. 356 (6 Sup. Ct. Repr. 1064) ; Broadfoot v. Fayetteville, 121 N. C. 418 (28 S. E. Repr. 515).
    A railroad company may acquire title to land by adverse possession for the full period prescribed by the statute of limitations in the same manner as an individual: Lehigh Valley R. R. Co. v. McFarlan, 43 N. J. L. 605; Penna. R. R. Co. v. Thompson, 45 N. J. Eq. 870 (19 Atl. Repr. 622) ; Baldwin v. Calkins, 10 Wendell, 166.

      January 7, 1907 :

      John C. Uhle and Edward Campbell, for appellee.
    No title was acquired by adverse possession : Wheeling, etc., Ry. Co. v. Cleland, 37 Legal Tnt. 466 ; Western Penna. R. R. Co. v. Johnston, 59 Pa. 290; McClinton v. Pittsburg, etc., Ry. Co., 66 Pa. 404.
   Opinion by

Mr. Justice Brown,

In 1882, the Ohio and Baltimore Short Line Railway Company, with the consent of the appellee, the owner of the three tracts of land in controversy, entered upon them and constructed a railroad over them. In the construction of this railroad and in making the improvements necessary in connection with the same the railway company expended large sums of money, and it and the Baltimore and Ohio Railroad Company, the appellent, its lessee, have, from the time the lands were so occupied for railroad purposes up to the institution of this suit, in January, 1905, been in the exclusive and undisputed possession of them. As this possession has been exclusive and is claimed by the appellant to have been adverse for more than twenty-one years, its contention is that the statute of limitations of March 26, 1785, 2 Sm. L. 299, is a bar to the plaintiff’s right to recover.

That the statute of limitations is not a bar to the right of the plaintiff to be compensated for the taking of its lands by the railway company having the right of eminent domain, is not an open question with us, and the learned trial judge correctly so held in directing a verdict for the appellee, on which judgment was entered “ with stay of execution thereon for ninety days to enable the railroad company to proceed under the statute and procure the condemnation of land, etc.” The Ohio and Baltimore Short Line Railway Company having entered upon the lands of the appellee for the purpose of constructing its road upon them, neither it nor its lessee can set up an adverse holding, either under the statute of limitations or as a prescriptive easement, in bar of the right of the appellee to receive compensation for whatever damages it may have sustained : Wheeling, Pittsburg and Baltimore Ry. Co. v. Cleland, 37 Legal Int. 466; Covert v. Pittsburg and Western Railway Co., 204 Pa. 341; Carter v. Ridge Turnpike Co., 208 Pa. 565. The uncontradicted testimony is that the appellee has not been compensated for the taking of its lands, bnt, having permitted the railway company to enter upon them in advance of the ascertainment of damages and make large expenditures upon them in the construction and operation of its railroad, it would be inequitable to now permit them to be taken from the appellant, unless it should refuse to proceed in the statutory way to have the damages ascertained. This action of ejectment, equitable in its character, was properly brought for the purpose of quickening the appellant to the performance of its duty to take proper steps to ascertain what compensation ought to be paid to the appellee: Oliver et al. v. Pittsburg, V. & C. Ry. Co., 131 Pa. 408. The effect of the judgment below is to permit the appellant to retain possession of the lands upon making proper compensation for whatever damages may have been sustained by the appellee, and it is, therefore, affirmed.


text:
    Wallace v. Baltimore & Ohio Railroad Company, Appellant.

      Railroads — Demurrage—Seizure of cars — Equity—Jurisdiction—Remedy at law.

      A railroad company has no lien for demurrage upon property transported over its road.
    Where the case presented by a bill in equity filed against a railroad company, is not that of a common carrier refusing to perform its duty generally in the matter of the delivery of freight to the plaintiffs, resulting in irreparable injury to them in their business, but simply a refusal to deliver to them three particular cars loaded with freight belonging to them which the railroad company claimed the right to hold for demurrage charges, the plaintiff has an adequate remedy at law either in trespass or replevin and there is no jurisdiction in equity.
    Argued Oct. 16, 1906.
    Appeal, No. 172, Oct. T., 1906, by defendant, from decree of C. P. Lawrence Co., Dec. T., 1904, No. 1, on bill in equity in case of F. W. Wallace and M. L. Wallace, trading as Wallace Brothers, v. Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction. Before Porter, P. J.

      January 7, 1907:
    The opinion of the Supreme Court states the case.
    The court entered the following decree :
    That the said defendants be, and they hereby are, severally ' perpetually enjoined and restrained from refusing, neglecting or delaying to deliver to the plaintiffs the cars of lumber and freight consigned to the said plaintiffs upon the siding mentioned in the plaintiff’s bill of complaint, upon payment or tender of the freight charges due on said cars, and that defendants be, and they hereby are, severally specially required, ordered and directed to deliver to the plaintiffs, upon their siding mentioned in the bill of complaint; ■ all cars of freight consigned to the plaintiffs, and now or hereafter to come into the possession or control of the defendant company, upon payment or tender of the freight charges thereon.

      Error assigned was the decree of the court.

      Wylie McCaslin, with him Arrel, Wilson & Harrington, for appellant.

      J. Norman Martin, for appellee.
   Opinion by

Mr. Justice Brown,

The appellees are lumber dealers in the city of New Castle. They own a railroad siding or switch connected with the Baltimore & Ohio Company’s line of railroad, on which that company has for many years been delivering to them carloads of lumber consigned to them. On September 11,1904, the company sent an engine to the siding and took possession of three cars standing on it, loaded or partly loaded with lumber belonging to the appellees, and which had been delivered to them by the company on the said siding. These cars were taken away from the siding by the railroad company because the appellees had refused to pay demurrage charged for their alleged unreasonable detention. The claim of the company was that it had a lien for such demurrage. This bill was filed asking for an injunction to restrain the railroad company from refusing, neglecting or delaying to deliver cars of lumber and freight consigned to the appellees upon the siding upon their payment or tender of the freight due, and that it be required to deliver to them, upon payment or tender of the freight charges, all cars or freight consigned to them which were then in or might come into its possession. In its answer the appellant denied the allegation in the seventh paragraph of the bill, which was that the appellees had other cars consigned to them which were held by the company in its yards and sidings, and that other carloads of lumber had been ordered and purchased by them and would soon arrive in the yards of the defendant company, which was refusing, and continued to refuse, to deliver upon their siding carloads of lumber and freight consigned to them.

The appellant had no lien upon the cars taken from the siding for demurrage : Nicolette Lumber Co. v. People’s Coal Co., 213 Pa. 379, and it had, therefore, no right to refuse to allow the appellees to unload the cars because demurrage was not paid. There is nothing in the case to show that such a lien existed in favor of the appellant. The only cars which the company refused to deliver to the appellees were the three taken from the siding. M. L. Wallace, one of the appellees, admits in his testimony that he had not demanded delivery of any other cars, and that the company had not refused to deliver them. In the court’s findings of fact it does not appear that the company had refused, upon demand, to deliver to the plaintiffs any other cars than these three. The case as presented below was, therefore, not that of common carrier refusing to perform its duty generally to the appellees, resulting in irreparable injury to them in their business, but simply a refusal to deliver to them on their siding three particular carloads of lumber. For the refusal of the company to deliver these there was an adequate remedy at law, either in trespass or replevin, and the proceeding ought to have been on the common-law side of the court. If the appellees had shown persistent refusal on the part of the appellant to perform its constant duty to them, a different situation would be presented, and equity would furnish the only adequate relief ; but it will not interfere when all the complainants are able to show is a refusal to deliver specific articles, for the refusal to deliver which there is compensation in damages. For this reason the twelfth assignment of error is sustained.

The decree of the court below is reversed, and it is now ordered, adjudged and decreed that the plaintiff’s bill be dismissed, with costs to the appellant.


author: Per Curiam,

text:
    Boggs v. Pittsburg, McKeesport and Greensburg Railway Company, Appellant.

      Negligence — Street railways — Grade crossings — “Stop, look and listen”— Evidence — Province of court and jury.

    In an action to recover damages for personal injuries sustained at a grade crossing, plaintiff testified that at the brow of a hill above the crossing, he looked both ways and “saw nothing in sight.” At that point he could see 500 feet in the direction from which the electric car came. He then drove down and near the crossing, stopped his horse, looked, listened, and there being no car in sight or hearing, “ drove a natural gait across.” An account of the accident given by a witness for the plaintiff was not reconcilable with the account given by the plaintiff. Plaintiff also testified that if there had been any car on that hillside he could have heard it. Held, that it was for the jury to pass upon the irreconcilable conflict of testimony, and the inferences to be drawn from plaintiff’s testimony.
    Argued Oct. 10, 1906.
    Appeals, Nos. 91 and 92, Oct. T., 1906, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1904, No. 338, on verdict for plaintiff in case of Hiram M. Boggs, father, and Benjamin G. Boggs, minor son, v. Pitts-burg, McKeesport and Greensburg Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    . Trespass to recover damages for personal injuries, and for loss of personal property. Before McConnell, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for Hiram Boggs for $160 and for Benjamin Boggs for $3,333.

      Error assigned among others was in refusing binding instructions for defendant.

      James S. Moorhead, with him Robert W. Smith,

    for appellant cited: McCauley v. Traction Co., 13 Pa. Superior Ct. 354; Callahan v. Traction Co., 184 Pa. 425 ; Urias v. Penna. R. R. Co., 152 Pa. 826 ; Keenan v. Union Traction Co., 202 Pa. 107; Kinter v. Penna. R. R. Co., 204 Pa. 497 ; Mankewicz v. Lehigh Valley R. R. Co., 214 Pa. 886.
    January 7, 1907:

      Denna C. Ogden, with him J. B. Owens and W. T. Dom, Jr.,

    for appellee, cited: Conyngham v. Erie Electric Motor Co., 15 Pa. Superior Ct. 573 ; Haas v. Chester St. Ry. Co., 202 Pa. 145 ; Callahan v. Traction Co., 184 Pa. 425 ; Hamilton v. Consolidated Traction Co., 201 Pa. 351; Downey v. Pittsburg, Allegheny & Manchester Traction Co., 161 Pa. 131; Raulston v. Traction Co., 13 Pa. Superior Ct. 412 ; Manayunk & Roxborough Boarding and Livery Stable Co. v. Union Traction Co., 7 Pa. Superior Ct. 104; Kennedy v. Consolidated Traction Co., 210 Pa. 215; McFarland v. Traction Co., 204 Pa. 423; Hellriegel v. Traction Co., 23 Pa. Superior Ct. 392.
   Per Curiam,

The plaintiff who was injured testified that at the brow of the hill he looked both ways and “ saw nothing in sight.” At that point he could see 500 feet in the direction from which the car came. He then drove down, and near the crossing stopped his horse, looked, listened and there being no car in sight or hearing, “ drove a natural gait across.” He thus not only made out a case clear of contributory negligence but affirmatively showed care. No witness directly contradicted him, though Parks, who was driving up the hill after passing the plaintiff at the crossing, testified that he met the car coming down, saw the motorman throw off the power, and looked back and saw the plaintiff driving on the track. This account is not reconcilable with plaintiff’s, but the conflict could only' be settled by the jury.

But further on the plaintiff testified that if there had been any car on that hillside he could have heard it. From this the appellant argues that it is clear that plaintiff did not look or listen as he should have done, and considering the distance to the crossing, the highly improbable rate at which the car must have been traveling, and the general circumstances of the situation the argument presents a strong inference that the plaintiff’s account was not correct. But it was an inference of fact, and not the only one that the evidence would permit. Improbable as the plaintiff’s story seemed, it might be true, and only the jury could say that it was not. It has been often said the rule of Carroll v. Penna. R. R. Co., 12 W. N. C. 348, is a good one and will not be relaxed, but it is only applicable to clear cases.

Judgment affirmed.


text:
    Ohio River Junction Railroad Company v. Pennsylvania Company, Appellant.

      Railroads — Severance of connection — Injunction—Equity.
    On a bill in equity by one railroad company against another it appeared that plaintiff’s railroad was built by the defendant company as a side track of its own road, partly on its own land, and partly on a right of way furnished by a private firm for whose accommodation and at whose instance it was constructed. By the agreement under which it was built it was to be under the management and control of defendant, and subject to removal at its option at any time upon sixty days’ notice. The notice was given prior to the filing of the bill. The plaintiff company acquired the rights of the private firm to the property in question, and procured a charter ' as a railroad under the Act of April 4, 1868, P. L. 62. It filed a petition in the common pleas for the appointment of viewers to determine and fix the terms of a connection with defendant’s railroad. When the bill was filed this proceeding had been pending for some time. The court below found that a severance of the existing connection would work great injury, and awarded an injunction. Held, that so far as present rights are concerned the bill had not been sustained, but in view of the finding by the court below of the injury that would be done by an immediate severance the injunction should be continued four months to allow plaintiff to establish its rights in the proceedings in the common pleas.
    Argued Oct. 16, 1906.
    Appeal, No. 37, Oct. T., 1906, by defendant, from decree of O. P. Beaver Co., June T., 1903, No. 6, on bill in equity in case of Ohio River Junction Railroad Company v. Pennsylvania Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed with modification.
    Bill in equity for an injunction.
    The opinion of the Supreme Court states the case.

      January 7, 1907 :

      Error assigned was decree awarding an injunction.

      James L. Hogan, with him John M. Buchanan, for appellant.

      William A. McConnel, for appellee.
   Per Curiam,

Some very serious questions are suggested in this case, though they belong perhaps more properly for purpose of decision to another branch of the same controversy which is not yet before us.

The plaintiff’s railroad, or the contested part of it, was built by the defendant company as a side track of. its own road, partly on its own land and partly on a right of way furnished by the Parks, a private firm for whose accommodation and at whose instance it was constructed. By the agreement under which it was built it was to be and has continued under the management and control of the defendant, and subject to removal at its option at any time upon sixty days’ notice. Such notice has been given, the time has expired, and, so far as any rights derived from the agreement are concerned, neither the Parks nor the appellee have any title available to sustain this bill.

But the plaintiff has acquired the rights of the Parks in the property in question, and has procured a charter as a railroad under the Act of April 4, 1868, P. L. 62. Claiming the right under the constitution and the act of 1868 to make a connection with the defendant’s railroad, it has filed a petition in the common pleas of Beaver county for the appointment of viewers to determine and fix the terms of the connection. The viewers were appointed more than three years ago, but, so far as we are informed, nothing further has been done, and the delay is not explained. It is in this proceeding that the questions alluded to supra will properly arise. Whether, under the circumstances, the plaintiff is entitled to the rights of a railroad as against the defendant; whether, conceding such title, a new railroad can, by simply inserting it in its charter route, take a siding which is the property and on the land of a senior railroad, these and other questions of a like character will apparently be involved in that proceeding.

So far as present rights are concerned the plaintiff has failed to sustain its bill, and in strictness it should be dismissed. But in view of the finding by the court below of the nature and extent of the injury that would be done by the immediate severance of the existing connection, we conclude to maintain the status quo by allowing the injunction to stand.

The plaintiff, however, must push the other proceeding with diligence to have its rights determined. The injunction, therefore, is limited to four months from this date. So modified the decree is affirmed.


text:
    Williams’ Estate.

      Will — Devise—Life estate.

    Testator after giving his entire estate to his wife for life with power to use the principal of the money, gave whatever should remain at her decease to his then surviving children and grandchildren per stirpes “providing however as to the share of my daughter .... that in case she shall die childless, either before or after the decease of my said wife” then such share to go to the other children or heirs. Held, that the daughter took a life estate.
    Argued Oct. 16, 1906.
    Appeal, No. 27, Oct. T., 1906, by Elmira Atkinson, from decree of O. C. Beaver Co., Dec. T., 1904, No. 8, sustaining exceptions to distribution in Estate of Isaac Williams, deceased.
    Before Mitchell, . C. J., Fell, Brown, Mestkezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to distribution of a fund raised by the sale of real estate. Before Wilson, P. J.
    From the record it appeared that the real estate in question was part of the estate of Isaac Williams, deceased.
    The auditor awarded to Elmira Atkinson, a daughter of the decedent, a share of the fund absolutely.
    The will of the decedent provided as follows :
    Fifth. “ Whatsoever of my estate, real, personal and mixed, hereinbefore bequeathed to my wife for life, that may remain at her decease, I direct that the same shall pass to and vest in my then surviving children and grandchildren, being the children of any deceased child, the grandchildren to take only the-share of such deceased parent, provided, however, as to the share of my daughter Elmira Atkinson therein, or in the property mentioned in the fourth clause of this will, that in case she shall die childless, either before or after the decease of my said wife, then her share of my estate to which she may be entitled under this my will, shall pass to and vest in my other children or their heirs.”
    January 7, 1907:
    Exceptions to the auditor’s report were sustained by the court, and the portion of the fund in dispute was awarded to Elmira Atkinson for life.

      Error assigned was the decree of the court.

      A. P. Marshall, with him John M. Buchanan and James L. Hogan, for appellant.

      S. S. Mehard, with him Edwin S. Weyand and F. G. Moorhead, for appellee, were not heard.
   Per Curiam,

The testator’s intent is so manifest and his expression of it so clear that it is difficult to see how it could be made plainer. After giving his entire estate to his wife for life with power to use the principal of the money, he gave whatever should remain at her decease to his then surviving children and grandchildren per stirpes, “ providing however as to the share of my daughter Elmira (appellant) .... that in case she shall die childless, either before or after the decease of my said wife ” then such share to go to the other children or heirs. Nothing is left in doubt either as to the contingency itself on which the devise over is to take effect, or the time of its happening. It is to be at the death of appellant, whether that shall be before or after that of her mother. So long as the contingency is still possible in the future the estate of 'the appellant is liable to be defeated by its occurrence.

Decree affirmed.


text:
    Rochester Borough, Appellant, v. Pennsylvania Company.

      Railroads — Vacation of road — Substitution of road — Borough ordinance.

    On a bill in equity by a borough against a railroad company to restrain the obstruction of a street, it appeared that an old road formerly ran parallel to defendant’s road, first on one side, and then, after a dangerous grade crossing, on the other side. The borough passed an ordinance providing that the road in question, where the same crossed the railroad, “be and the same is hereby vacated, and the said road shall be continued on the east side of the railroad until the same meets,” a run designated by name, the right of way from the said crossing to the said run to be obtained by the street committee of the council, and the under grade crossing at the run to be made by the railroad at its own expense. After these improvements were made, the vacated portion of the street west of the railroad was left without much change, and put to no specific use, until the railroad company constructed a stone wall across it. Held, that the true construction of the ordinance was to vacate the old street on the west and substitute for it the new one on the east.
    Argued Oct. 16, 1906.
    January 7,1907:
    Appeal, No. 44, Oct. T., 1906, by plaintiff, from decree of C. P. Beaver Co., Dec. T., 1903, No. 2, dissolving preliminary injunction in case of Rochester Borough v. The Pennsylvania Company, Lessee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Wilson, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Jthror assigned was decree dissolving preliminary injunction.

      George A. Baldwin, for appellant.

      John M. Buchanan and James L. Hogan, for appellee, were not heard.
   Per Curiam,

This bill was founded on the averment that the defendant had constructed a stone wall across Brighton road, a street of the plaintiff borough, which had never been vacated, and had not provided any new road to take the place of the part so occupied. The facts, however, as found by the court below and as apparently conceded here are quite to the contrary. The Brighton road formerly ran parallel to defendant’s road and adjoining it first on one- side and then on the other crossing the tracks by a dangerous grade crossing. In 1890 the borough passed an ordinance in pursuance of which part of the Brighton road was shifted from the west to the east side of the tracks, and a new crossing undergrade was substituted for the old one. The vacated portion of the street west of the railroad appears to have been left without much if any change, and put to no specific use until the action of the railroad now complained of. On the facts the plaintiff failed to make out any case for relief.

The borough’s argument here, however, appears to be founded on its construction of the ordinance. The language is “ that Brighton road where the same crosses the Pittsburg, Fort Wayne and Chicago Railway, near McKinley’s Run, be and the same is hereby vacated, and the said Brighton road shall be continued on the east side of the railroad until the same meets McKinley’s Run,” the right of-way from the said crossing to the said run to be obtained by the street committee of the council, and the undergrade crossing at the run to be made by the railroad at its own expense. It is contended that the vacation of Brighton road was only of the actual crossing. But this ignores the whole intent of the ordinance. Brighton road going northward lay on the east side of the railroad until it reached the crossing, then it went over and continued on the west side of the railroad towards the run and the borough line. By the construction now contended for the vacation would sever the continuitj? of the road and leave it a cul de sac on each side of the railroad, a situation far worse than that which the ordinance was meant to remedy. The provision for acquiring the right of way and continuing the street on the east side of the railroad from the point of vacation to the new undergrade crossing shows the intent, and the true construction of the ordinance to be to vacate the old street on the west and substitute for it the new one on the east. That would have been the effect if the change had been made by the railroad in pursuance of its power to occupy and relocate a public road under the railroad act of 1849, and certainly no less effect can be attributed in the present case' where the change was not made by the railroad at all under the statutory powers but by the borough itself though partly by agreement with the railroad.'

Decree affirmed.


author: Mr. Justice Fell,

text:
    Sturgeon v. Beaver Valley Traction Company, Appellant.

      Negligence — Street railways — Wagon on track — Contributory negligence— Case for jury.

    In'an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was riding in an open buggy on the westerly track of the defendant’s electric railway in a borough, and was struck by a car running in the opposite direction on this track. The space between the tracks''and the curb on one side of the.street was impassable and that on the other side was dangerous because of gullies and obstructions. He was deaf, and drove on the track on which a car would approach him in front as a matter of precaution, trusting to his sight to warn him of a car coming in front rather than to his defective hearing to warn him of a car approaching from the rear. He was looking for a car and saw the car that struck him as it came around a curve in the street and was 340 feet from him, running on a steep down grade at the rate of fifteen miles an hour. He at once attempted to turn out of the track, but was delayed by the wheels of his buggy slipping on the rails. Held, that the question of defendant’s negligence was for the jury.
    Argued Oct. 16, 1906.
    Appeal, No. 101, Oct. T., 1906, by defendant, from judgment of O. P. Beaver Co., June T., 1904, No. 183, on verdict for plaintiff in case of Amos E. Sturgeon v. Beaver Valley Traction Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, •JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court. ■
    Verdict and judgment for plaintiff for $1,600. Defendant appealed.

      January 7, 1907 :

      Error assigned was in refusing binding instructions for defendant.

      James L. Hogan, with him John M. Buchanan, for appellant.

      J. Rankin Martin, with him James H. Cunningham,

    for appellee, were not heard.
   Opinion by

Mr. Justice Fell,

The only assignment of error in this case is to the refusal of the court to direct a verdict for the defendant. The plaintiff’s case as shown by his testimony was this: He was riding in an open buggy on the westerly track of the defendant’s electric railway in the borough of New Brighton, and was struck by a car running in the opposite direction on this track. The space between the tracks and the curb on one side of the street was impassable and that on the other side was dangerous because of gullies and obstructions. He was deaf and drove on the track on which a car would approach him in front as a matter of precaution, trusting to his sight to warn him of a car coming in front rather than to his defective hearing to warn him of a car approaching from the rear. He was looking for a car and saw the car that struck him as it came around a curve in the street and was 340 feet from him, running on a steep down grade at the rate of fifteen miles an hour.

He at once attempted to turn out of the track, but was delayed by the wheels of his buggy slipping on the rails. Under this statement of the facts, the plaintiff was driving on the only part of the street where it was practicable for him to drive, and he was exercising care. He certainly established a case clear of contributory negligence. Whether the motorman was negligent under the circumstances was for the jury.

The judgment is affirmed.


author: Mb,. Justice Fell,

text:
    Medis v. Bentley, Appellant.

      Negligence — Master and servant — Dangerous machinery — Infant—Case for jury.

    In an action by a boy thirteen years old against his employer to recover damages for personal injuries, it appeared that the plaintiff had been employed in the defendant’s rope factory three weeks at work not connected with the machinery. Two or three days before he was injured he was put to work by the defendant’s foreman at a drawing frame. At this machine strips of hemp wound on spools were placed in cans three feet deep. The ends of the strips were passed over the drawing frame to the machinery above by means of which they were twisted into rope or twine. The boy was required to watch twenty-four of these cans, to remove empty ones and place full ones in position, and when the strips should break to unite their ends. While he was engaged in this work, a strip broke in a can that was nearly •empty. In reaching down to the bottom of this can with his left hand, his right hand was raised and his sleeve was caught by the cogwheels in the overhead machinery. These cogwheels were exposed and unguarded, and an operator of the machine might come in contact with them if he should pass under the head of the drawing frame. The plaintiff testified that he did not know of the existence of the cogwheels and that he had not been instructed where to stand in doing his work. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.

      Practice, C. P. — Trial—Charge.
    If the trial judge has inadvertently erred in commenting on testimony not properly in the case, it is the duty of counsel to call his attention to it at the time, in order that he may make any necessary correction.
    Argued Oct. 16,1906.
    Appeals, Nos. 117 and 118, Oct. T., 1906, by defendant, from judgment of O. P. Beaver Co., March T., 1904, No. 193, on verdict for plaintiff in case of John Calvin Medis in his own right and Isaac Leslie Medis, by John Calvin Medis, his next friend, v. Bentley & Gerwig, Limited.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for John Calvin Medis for $483.37 and for Isaac Leslie Medis for $1,526.70.

      Errors assigned were (1) in refusing binding instructions for defendant; (4-7) portions of charge as to which it was averred the court had improperly treated the evidence.
    January 7, 1907 :

      William W. Wishart, with him John M. Buchanan and James L. Hogan, for appellant.
    It was error to submit the case to the jury: Fick v. Jackson, 3 Pa. Superior Ct. 378; O’Keefe v. Thorn, 24 W. N. C. 379; Zurn v. Tetlow, 134 Pa. 213; Ash v. Verlenden, 154 Pa. 246; McDevitt v. Miller, 17 Lane. L. R. 247; Betz v. Winter, 195 Pa. 346 ; Kaufhold v. Arnold, 163 Pa. 269; Gillen v. Rowley, 134 Pa. 209; Whitehead v. Alrich, 1 W. N. C. 505; Reese v. Hershey, 163 Pa. 253.

      Frank H. Laird, with him James H. Cunningham,

    for appellee, cited : Hydraulic Works Co. v. Orr, 83 Pa. 332 ; Summers v. Brewing Co., 143 Pa. 114; Kehler v. Schwenk, 151 Pa. 505; Rummel v. Dilworth, 131 Pa. 509 ; Kilkeary v. Thackery, 165 Pa. 584; Cargill v. Towel Supply & Laundry Co., 185 Pa. 269.
   Opinion by

Mb,. Justice Fell,

The negligence alleged in this case was in putting an inexperienced boy to work at a dangerous machine without having warned him of the danger to which he was exposed or instructed him how to do his work. The main question to be considered is whether the case should have been withdrawn from the jury.

The plaintiff, who was injured, was thirteen and a half years old and had been employed in the defendant’s rope factory three weeks at work not connected with the machinery. Two or three days before he was injured he was put to work by the defendant’s foreman at a drawing frame. At this machine strips of hemp wound on spools were placed in cans three feet deep. The ends of the strips were passed over the drawing frame to the machinery above, by means of which they were twisted into rope or twine. The boy was required to watch twenty-four of these cans, to remove empty ones and place full ones in position, and when the strips should break to unite their ends. While he was engaged in this work, a strip broke in a can that was nearly empty. In reaching down to the bottom of this can with his left hand, his right hand was raised and his sleeve was caught by the cogwheels in the overhead machinery. These cogwheels were exposed and unguarded, and an operator of the machine might come in contact with them if he should pass ■under the head of the drawing frame. The plaintiff testified that he did not know of the existence of the cogwheels and that he had not been instructed where to stand in doing his work. This clearly.made out a case for the jury. It is the duty of an employer to give suitable instructions to an inexperienced youth employed about dangerous machinery. Whether this duty was performed was a question of fact under the disputed testimony.

The objection that the learned trial judge in his charge commented upon testimony that was not in the case is not well founded. A question had been answered by a witness before the objection was made and the judge was not asked to strike out the testimony. If there had been an inadvertent error in commenting upon testimony not properly in the case, the duty of counsel was to call the attention of the judge to it at the time in order that he might make any necessary correction. “If the judge in referring to the testimony of a witness misquoted it in a material point, his attention should have been called to the error at once, before the jury retired. A party may not sit silent and take his chance of a verdict, and then if it is adverse complain of a matter which if an error would have been immediately rectified and made harmless: ” Commonwealth v. Razmus, 210 Pa. 609.

The judgment is affirmed.