text:
    S. Morgan Smith Company v. Monroe County Water Power & Supply Company, Appellant.

      Affidavit of defense — Practice, C. P. — Contract—Written contract— Parol agreement.

    In an action on a promissory note given in part payment for machinery sold under a written contract, an affidavit of defense is'insufficient to prevent judgment, which sets up a parol representation or warranty by plaintiff’s agent, in contradiction of the express warranty contained in the contract, without any allegation that the representation or warranty was omitted from the contract by fraud, accident or mistake.
    Argued March 9, 1908.
    Appeal, No. 254, Jan. T., 1907, by-defendant, from order of O. P. Monroe Co., Feb. T., 1907, No. 13, making absolute rule for judgment for want of a sufficient affidavit of defense in case of S. Morgan Smith Company ;v. Monroe County Water Power & Supply Company.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Rule'for judgment for want of a sufficient affidavit of defense.
    Staples, P. J., filed the following opinion:
    Opinion and judgment of the court making absolute rule to show cause why judgment should not be entered in the above case for want of a sufficient affidavit of defense.
    The plaintiff’s action was based on a written agreement, or contract, between the parties, wherein the said plaintiff agreed to sell to the said defendant certain machinery, inter alia, two ' “-C ” compensating Woodward wheel governors, and for which the defendant agreed to pay the said plaintiff a certain sum of money. In accordance with the said agreement or contract, the said defendant executed and delivered to the said plaintiff a certain promissoiy note in the sum of $3,425, upon which it made certain payments, reducing the same to the sum of $1,605.72, which it refused to pay, and for which the above action was brough t.
    The defendant filed an affidavit of defense, which was substantially to the effect that prior to the execution of the said agreement plaintiff’s agent, knowing the purpose for which the defendant desired to use the said governors, represented that the said governors would control the machinery plant of the defendant to a regulation of two per cent, and that he, the said agent, then and there guaranteed the same, whereupon, upon • that representation, the defendant signed the contract. It further alleged that the said governors had not controlled the plant as represented by the said agent, and as guaranteed by him, and, although an engineer of the manufacturérs of the said governors had adjusted the same, the said governors had never controlled the said machinery plant, and the said plaintiff had been informed by competent engineers that the said governors are not intended for the class of work for which the defendant desired to use them, and that it had notified the said plaintiff that the said, governors were not as represented, had not been, and would not, be accepted, and were held only subject to the order of the plaintiff as to their disposal.
    The said affidavit further alleged that the said defendant was informed and believed that governors, which would properly control their machinery plant, would cost at least $1,700.50, or more than the balance due on said note.
    The contract or agreement between the parties, inter alia, contained the following : “ The party of the first part agrees to sell to the party of the second part the following machinery, to wit: All that machinery described in proposal on preceding pages, all to be in accordance with the specifications and guarantees set forth in the proposal of the party of the first part hereunto annexed.”
    Also, “ The foregoing is the agreement between the said parties as it exists at this date, and it is agreed and distinctly understood that all previous communications between the said parties, either verbal or written, contrary to the provisions hereof are hereby withdrawn and annulled ; and that no modification of this agreement shall be binding upon the parties hereto, or either of them, unless such modification shall be in writing, duly accepted by the purchaser and approved by an executive officer of the S. Morgan Smith Company.”
    Also, “ All material and workmanship to be first class in every particular, and we agree to replace, free on board cars, York, Pa.-, any parts which fail or become broken, due to poor material or workmanship within one year from the completion of the erection of the plant.”
    There is no allegation in the affidavit of defense that any of the material and workmanship was not first class in every particular, nor that any parts failed or become broken due to poor material or workmanship, and were not replaced as stipulated for in said agreement. But it was simply alleged in the said affidavit of defense that the two “ C ” compensating "Woodward water wheel governors were not intended, or could not, do the kind of work demanded by the plant of the defendant company, and under the guarantee of the agent of the said plaintiff, it was not obliged to pay for them.
    To sustain this contention of the defendant would require a modification of the contract by making the alleged guarantee a part thereof. The plaintiff in the said contract agreed to furnish to the said defendant the said particular “ C ” compensating Woodward water wheel governors, and the defendant seeks to have inserted into the said contract a prior parol agreement and guarantee as to the kind of work they would do, although the contract specifically provides that “ all previous communications between the said parties, either verbal or written, contrary to the provisions hereof, are hereby withdrawn and annulled.”
    The alleged representations and guarantee made by the agent of the plaintiff were made prior to the execution of the contract, and the alleged guarantee was contrary to its provisions. All the machinery, including the governors, was sold “ in accordance with the specifications and guarantees set forth in the proposal of the party of the first part, thereto annexed.” There was no such guarantee in the specifications as that alleged to have been made by the agent, nor does the defendant in its áffidavit of defense claim that the machinery was not in accordance with the said specifications, but it seeks to insert in the said contract an agreement which would modify the same, and practically make the terms of payment depending upon a trial of the said governors, as to whether or not they would work satisfactorily, and, as the agent, it is alleged, represented they would work.
    It is a rule too firmly rooted in justice and honesty to be ' easily eradicated from any system of wise laws, that all negotiations, all conversations, all oral promises, all verbal agreements are foréver merged in, supérseded and extinguished by the sealed instrument, which is the final outcome and result of the bargaining of the parties : "Wodock v. Robinson, 118 Pa. 603.
    ' Unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms can neither be added to or subtracted from by parol evidence': Wodock v. Robinson, 148 Pa. 503.
    When parties without fraud or mistake have put their agreements in writing, that is not only the best, but the sole evidence of their agreement: Union Storage Co. v. Speck, 194 Pa. 126.
    Without citing any further authorities, it is sufficient to say that the principle, thus enunciated, has been commented upon, and considered and affirmed so often, that it should leave no doubt as to its application ; and the only question for our consideration, is, whether or not the said alleged misrepresentation and guarantee were omitted from the contract by fraud, accident or mistake, and, all the more is this the case, when attention is called to the stipulations in the contract as to the annulment and canceling of all prior communications, etc.
    Mere representation is not necessarily fraud, nor the mere omission to insert in a written contract an alleged guarantee. In order for the contention of the defendant in this case to prevail, there must be contained in the affidavit of defense a statement of fact, or of circumstances, from which a conclusion can be drawn that the agent of the plaintiff was guilty of some fraud, whereby the said guarantee was not included or inserted in -the said contract. In the absence of such a state of facts, it does not appear- clear to us how the said contract could be either varied, contradicted or modified.
    There is no allegation in the affidavit of defense that the said guarantee was omitted from the contract by reason of any fraud, accident or mistake. At the best, if said alleged guarantee were made, it was a mere contemporaneous agreement by the agent as to what the “ C ” governors would do. There is not even an allegation that the agent knew differently. There is nothing contained in the affidavit of defense to the effect that the said agent said anything whereby the defendant was induced to permit the omission of the said alleged guarantee from the contract, and in the light of the stipulations in the agreement itself as to prior communications, there being no allegation of fraud accounting for. the omission-of tbe said alleged guarantee, the affidavit of defense does not set forth suclTfraud, accident or mistake, with regard to the contract, as would authorize the court in permitting a modification of the same as contended by'the defendant, Or that would be sufficient to prevent a recovery by the plaintiff.
    To contradict or vary the terms of a written contract by a parol contemporaneous agreement between the parties, there must be allegation,, as well as proof, not only of it, but of its omission through fraud, accident or mistake, from the writing : Krueger v. Nicola, 205 Pa. 38.
    Where, in an action to recover damages for the breach of a written contract. for the exchange of land, the plaintiff, in order to meet the averments of the affidavit of defense, sets up an oral agreement made prior to the execution of the written agreement, but neither in his statement of claim, nor in his replication, avers that the oral agreement was omitted from the written agreement by fraud, accident or mistake, the plaintiff will not be permitted at the trial to offer evidence of the alleged oral agreement: Krueger v. Nicola, 205 Pa. 38.
    But besides this, the court below placed its ruling on the ground that the offer, even if sustained, was not proof of such fraud, accident or mistake in the execution and delivery of the writing as rendered it admissible. In this the court was correct: Fuller V. Law, 207 Pa. 101.
    An offer of parol evidence which does not propose to show a contemporaneous parol agreement which induced the party offering the evidence to sign- such an order, but simply the declarations of an agent made when the order was signed, is not admissible: Express Publishing Co. v. Aldine .Press, 126 Pa. 317.
    Besides, the defendant had distinct notice before signing the order that it was subject to acceptance- on its face as written, and that no one was authorized to change, modify or in any way affect the writing by verbal agreement or otherwise: Express Publishing Co. v. Aldine Press, 126 Pa. 317.'
    There is nothing in the affidavit of defense from which the court could draw any conclusion that there was anything done upon the part, either of the plaintiff or its agent, which induced the defendant to execute the agreement, without including in it the alleged representation and guarantee as to what the “ G ” governors would do.
    We cannot hold that the mere representation and guarantee made by the agent of the plaintiff would be sufficient to modify the written contract between the plaintiff and defendant in the absence of any fraud, inducing the defendant to assent to the omission of the same.
    May 4, 1908:
    And now, June 11, 1907, for the reasons above stated, the rule to show cause why judgment should not be entered for the plaintiff in the above case for want of a sufficient affidavit of defense is made absolute.

      Error assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      G. G. Shull, of Shull <& Shull, for appellant.

      A. Mitchell Palmer, for appellee.
   Per Curiam,

The judgment is affirmed for the reasons stated in the opinion of the learned judge of the common pleas:


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Burt, Appellant, v. Burt.

      Evidence — Parol evidence — Written instrument — Measure of proof.

    Parol evidence to vary a written instrument must be so clear, precise and indubitable as to carry conviction to the jury that the witnesses are credible, the facts distinctly remembered and accurately stated, and to the court that, if the facts alleged are true, the matters in issue are definitely and distinctly established.
    On an issue between an executrix and nephews and nieces of the testator to determine the ownership of the proceeds of a life insurance policy on the life of the testator, a verdict and judgment in favor of the nephews and nieces will be sustained, where the evidence shows that the agent who procured the policy filled up the blanks in the application by the direction and at the dictation of the insured, making the nephews and nieces beneficiaries; that he forwarded the application to the company and received the policy; that without reading it he handed it to the insured, who without reading it, and without knowing that the policy was made out in favor of his estate, placed it in his safe; that subsequently on several occasions the insured had told the agent that he was pleáséd that he had made'the policy payable to his nephews and nieces; •that he had repeatedly told other disinterested witnesses that his nephews and nieces were the beneficiaries, such statements covering the time to within a few months of his death; and that the widow had in the presence of other witnesses reproached the insured for making the policy payable to his nephews and nieces.
    Argued March 10, 1908.
    May 4, 1908 :
    Appeal, No. 28, Jan. T., 1908, by plaintiff, from judgment of O. P. Monroe Co., Sept. T., 1906, ' No. 8,'on- verdict for defendant in case of Ida Burt, Executrix of the'last Will and Testament of William H. Burt, deceased, v. Margaret Burt et al.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Interpleader to determine the ownership of the proceeds of a policy of life insurance. See 218 Pa. 198. Before Staples, P. J.
    ' The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Henry J. Kotz, for appellant,
    cited : Boyertown Nat. Bank v. Hartman, 147-Pa. 558 ; Williamson v. Carpenter, 205 Pa. 164.

      'Wilton A. Erdmaai, with him A. Raiguel Brittain, for appellee,
    cited : White v. Black, 14 Pa. Superior Ct. 459 ; Snyder v. Phillips, 25 Pa. Superior Ct. 648 ; Sulkin v. Gilbert, 218 Pa. 255 ; Wetherill Bros. v. Erwin &.Wagener Co., 12 Pa. Superior Ct. 259 ; Philadelphia v. Stewart; 201 Pa. 526 ; McGann v. McCrea, 18 Pa. Superior Ct. 456.
   Opinion by

Mr. Justice Fell,

The issue in this case-was framed to determine the right to monéy'paid into court by á life insurance company. In the application for the policy thé nephews and nieces of the insured were named as the beneficiaries in the event of the death of the insured before .the expiration of the endowment period. The .policy was issued- payable to the insured, his executors, administrators or assigns. On a former appeal it was held that in the absence of satisfactory evidence of mistake in writing the policy the rights of the parties were to be determined from the writings in evidence, and that the designation of beneficiaries in the policy prevailed over that in the application: ■ see Burt v. Burt, 218 Pa. 198. The order directing judgment to be entered for the plaintiff on the reserved question was subsequently rescinded on application of the defendants and a new venire was awarded to give them an opportunity to prove that there had been a mistake in writing the policy of which the irfsured was at no time aware.

At the second trial the defendants assumed the burden of proving that the insured intended that his nieces and nephews should be named as the beneficiaries and that he was under the belief that their names appeared in the policy. The only question raised by this appeal relates to the sufficiency of the proof offered. It was shown by the agent who procured the policy that he filled up the blanks in the application by the direction and at the dictation of the insured; that he forwarded the application to the company and received the policy7 ; that without reading it he handed it to the insured, who without reading it placed it in his safe ; and that subsequently on several occasions the insured had told him that he was pleased that he had made the policy payable to his nieces and nephews. Four other witnesses wholly disinterested testified that the insured had repeatedly told them that his nieces and' nephews were the beneficiaries in the policy. These statements by him covered'nearly the whole time he had the policy and extended to within a few months of his death. Other witnesses testified that his widow, the plaintiff in this case, had in their presence on different occasions reproached the insured for making the policy payable to his nieces and nephews.

There was evidence of statements made by the insured in regard to the policy that were in conflict with those testified to by the defendant’s witnesses. But it was not necessary to the defendant’s case that the testimony to show a. mistake in-writing the policy should be uncontradicted or that it should establish the fact with absolute certainty. The standard of such proof is that it should be clear, precise and indubitable in the sense that it carries conviction to the mind: Ott v. Oyer’s Executrix, 106 Pa. 6 ; Boyertown Nat. Bank v. Hartman, 147 Pa. 558. The rule is clearly stated in the opinion in Cullmans v. Lindsay, 114 Pa. 166 : Parol evidence to vary a written instrument must be so clear, precise and indubitable as to carry conviction to the jury that the witnesses are credible, the facts distinctly remembered and accurately stated, and to the court that, if the facts alleged are true, the matters in issue are definitely and distinctly established.”

The case was very carefully submitted with proper instructions and we find no error in the record.

The judgment is affirmed.


author: Pee Cueiam,

text:
    Singley v. Easton Transit Company, Appellant.

      Negligence — Street railways — Contributory negligence — Boy on bicycle— Evidence.

    In an action by a boy thirteen years old against a street railway company to recover damages for personal injuries, it appeared that two cars, one an open summer car which was at the time of the accident used as a motor, and the other a flat car loade.d with rails and attached to the summer car, were standing on a switch on a city street at a place where an east-bound passenger car stopped every fifteen minutes during the day, to allow a car to pass on the main track. The motorman stood on the east platform of the open car facing west in the direction in which he intended to move the cars. The plaintiff was riding east on a bicycle and when near the open car turned from his course to cross the street diagonally and pass behind it. This place was not a regular crossing but was frequently used to reach a subway under a railroad. At the moment he reached the track, the cars were started west and he was struck and injured. There was nothing except the position of the trolley pole to indicate that the car would move west, and anyone not observing this might well suppose the car was a regular passenger car going east or a car out of service. Reid, that the case was for the jury.
    Argued March 10, 1908.
    Appeal, No. 64, Jan. T., 1908, by defendant, from judgment of C. P, Northampton Co., Dec. T., 1905, No. 69, on verdict for plaintiff in case of William Singley v. Easton Transit Company.
    Before Fell, Brown, Mkstrezat, Potter and Elkin, JJ.
    Affirmed-.

      May 4, 1908:
    Trespass to recover damages for personal injuries. Before Scott, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Yerdict for William Singley for $1,800 and for Herbert Singley for $2,700.
    Judgment was entered on the verdict for Herbert Singley for $2,700 and judgment for William Singley for $1,200, all above that amount having been remitted. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. J. Steele, for appellant.

      James W. Fox, with him Edward J. Fox, for appellees.
   Pee Cueiam,

The questions of negligence on the part of the motorman of the defendant company and the contributory negligence of the plaintiff, who was injured, were necessarily for the jury, and they were submitted with full and accurate instructions. Two cars, one an open summer car, which was at the time used as a motor, and the other a flat car loaded with rails and attached to the summer car, were standing on a switch on a city street at a place where an east-bound passenger car stopped every fifteen minutes during the day, to allow a car to pass on the main track. The motorman stood on the east platform of the open car facing west in the direction in which he intended to move the cars. The plaintiff, a boy thirteen years old, was riding east on a bicycle, and when near the open car turned from his course to cross the street diagonally and pass behind it. This place was not a regular crossing, but was frequently used to reach a subway under a railroad. At the moment he reached the track the cars were started west, and he was struck and injured. There was nothing except the position of the trolley pole to indicate that the car would move west, and anyone not observing this might well suppose the car was a regular passenger car going east or a car out of service. The case was not that of a boy coming unexpectedly in front of a moving car, but of one going behind a standing car which unexpectedly moved backwards, and the question of negligence could not be determined by the court.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Gilbert v. Elk Tanning Company, Appellant.

      Negligence — Master and servant — Vice principal — Safe place to work— Superintendent of tannery.

    The duty to provide a reasonably safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice principal whose neglect is the neglect of the employer.
    Where the superintendent of a tannery removes a plank covering a vat containing hot liquid, and as a result a workman in the employ of the tannery while pushing a car slips on the greasy tracks and falls into the open vat and is killed, the question of the negligence of the tannery company is for the jury.
    Argued March 18, 1908.
    Appeal, No. 79, Jan. T., 1908, by defendant, from judgment of C. P. Bradford Co., May T., 1906, No. 448, on verdict for plaintiff in case of Clara Augusta Gilbert v. Elk Tanning Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Fanning, P. J.
    The facts appear by the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $6,000. Defendant appealed.

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

      Clarence E. Sprout and John C. Ingham, with them John E. Cupp, for appellant,
    Where a person is claimed to be. a vice principal and the testimony on the subject does not come up to the legal requirement as above stated, it is error for the. court to submit to the jury the question of vice principalship: Vant v. Roelofs, 217 Pa. 535 ; Ross v. Walker, 139 Pa. 42; Ricks v. Flynn, 196 Pa. 263.
    May 4, 1908:

      M. E. Lilley, of Lilley & Wilson, for appellee,
    cited : Cunningham v. Bridge Works, 197 Pa. 625 ; Glossen v. Gehman, 147 Pa. 619 ; Lee v. Electric Light, Heat & Power Co., 140 Pa. 618 ; Hoffman v. Clough, 124 Pa. 505 ; Rummel v. Dilworth, 131 Pa. 509 ; Beil v. Bonneville Portland Cement Co., 218 Pa. 472; Wagner v. Jayne Chemical Co., 147 Pa. 475.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by Clara A. Gilbert to recover from the Elk Tanning Company damages for the death of her husband, Elijah B. Gilbert. The plaintiff died before the case was tried, and her administrator was substituted. It appears from the evidence that Elijah B. Gilbert was employed as a bleacherman in defendant’s tannery at Powell, in Bradford county, and had been so employed, for years prior to the accident by which he lost his life. On December 10, 1905, while working in the tannery he fell into an open vat containing hot liquid, and was scalded so seriously that his death soon followed. In the yard of the tannery there were over 400 vats which were covered with planks. Between the vats and very close to them, ran several car tracks over which hides were carried in cars to and from the yard. These tracks were about fourteen inches in width, and from the nature of the business naturally tended to become greasy and slippery. On the day of the accident Gilbert with two other workmen was employed in transporting hides by means of a car running upon one of these tracks from the yard to the bleacher some distance away. It was five o’clock in the afternoon and the light was failing. One of the workmen was in front of the car, and Gilbert and the other workmen were pushing it from behind. The car passed very close to the edge of vat No. 59, which was seven by nine feet in area, and about five feet deep,. and was used for the purpose of heating liquids for distribution to other vats. The testimony shows ..that a plank had been taken from the cover of this vat, at the side next to the car track, and not replaced. The tracks were narrow and slippery, and as Gilbert passed the opening into the vat his feet slipped, and he was precipitated into the hot liquid. P. S. Martin, who was superintendent of the tannery and had general supervision of the plant, and who, under the evidence, had full and entire control of the business of that tannery, had been at the vat shortly before the accident, and he testified that he moved one plank, he thought, that was lying on the vat next to the track, in order to pull out a plug that was beneath it; but he could not say positively whether he replaced the plan k or not before he left. Another witness, Frank Ward, who had been working at the vat before the superintendent was there, testified that at half past three or four o’clock he left the planks next to the track down in place, and the. first four feet from the track tightly covered. It is undisputed that at the time of accident, the vat was uncovered adjoining the track, and that while engaged in pushing the car along the track, Gilbert slipped into it.

The negligence charged was in leaving the vat uncovered, in such dangerous proximity to the track along which the men were obliged to walk. The defendant company offered no evidence, but asked for binding instructions in. its favor. The trial judge refused this request, but reserved the question of law whether there was any evidence which entitled the plaintiff to recover, and submitted the question of negligence and contributory negligence to the jury, who found a verdict for the plaintiff. A rule for judgment in favor of the defendant non obstante veredicto was subsequently discharged, and judgment entered on the verdict.

It is contended by counsel for the defendant that the negligence which was that of the superintendent, was not that of a vice principal in this case, because he was engaged at the time in doing the work of an ordinary laborer. This contention is hardly borne out by the evidence, for it is a fair inference that in the attention which he was at the time bestowing upon the vat he was acting in a supervising capacity. The defendant corporation could act only through its agent, and the superintendent was the officer having charge of the business of the defendant, and, therefore, for all practical purposes, must be regarded as the corporation itself: Ardesco Oil Co. v. Gilson, 63 Pa. 146. The duty of maintaining a reasonably safe track between and past the vats, along which the men could walk in pushing the cars, was one which was a direct and absolute obligation upon the part of the defendant company from which nothing but performance could relieve it. This court, speaking by Justice Fell, in Lillie v. American Car & Foundry Co., 209 Pa. 161 (166), said: “ The duty to provide a safe place to work and to maintain it in a reasonably safe condition by inspection and repair is a direct, personal and absolute obligation from which nothing but performance can relieve an employer, and the person to whom it is delegated becomes a vice princi-. pal whose neglect is the neglect of the employer.” ' This statement of the principal was quoted and approved in the later case of Schiglizzo v. Dunn, 211 Pa. 253.

Under the thoroughly well-settled rules of law, it is clear that Martin, the superintendent in this case, must be considered a vice principal, and that the defendant was liable for his negligence. The uncontradicted evidence showed that Martin was superintendent of this tannery and had been so for more than two years, and had “general supervision of the plant and the testimony further showed that he had full and entire control and management of the business at this place, and that he directed the arranging of the appliances and apparatus there. The defendant offered no testimony whatever to rebut this evidence, which was certainly sufficient to take the case to the jury on the question of whether or not Martin was a vice principal. Under the evidence he was guilty in this case, not merely of an act of omission, such as failure to inspect or repair would have been, had the premises gotten out of order through wear and tear, but he was himself in this instance the one who by his own negligent action in leaving the vat uncovered, placed a dangerous trap at the very feet of the men whose duties obliged them to walk past it in the dim light of the hour; so that, instead of protecting them, he brought into existence the dangerous situation. In this respect he certainly failed to use ordinary care for the safety of the employees, and thereby failed to discharge the duty with which he was charged by the defendant company, and for which it could not evade responsibility. If another workman had left the vat uncovered,, and the superintendent had seen it in time to have remedied the matter, or given warning to the decedent, had- he failed to do either, his conduct would very properly have been considered negligence for which the master would be compelled to answer. Much more so when the carelessness was in his own action.

There is no affirmative evidence that the decedent was in any way guilty of'contributory negligence, and there was certainly nothing . which would have justified the trial judge in pronouncing upon it as a question of law. That was a matter for-the jury. We see no error either in the fact of submission, or in the manner in which this case was submitted to the jury by the learned trial judge.

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


author: Mr. Justice Mestrezat,

text:
    Escher v. Southwark Mills Company, Appellant.

      Negligence — Master and servant — Written statement — Ignorance of (he English language — Evidence.
    In an action by an employee against his employer to recover damages for personal injuries, where the defendant offers in evidence a statement signed by the plaintiff shortly after the accident and alleges that plaintiff’s evidence on the stand is inconsistent with the statement, and it appears that plaintiff made'the statement in the German language, that it was translated into English by another person, and written out in defendant’s office, and also that the statement was inaccurate in some minor matters, it is for the jury to determine whether the writing produced embodied accurately the statement made by the plaintiff.

      Negligence — Master and servant — Risk of employment — Caustic soda.

    In an accident case by an employee against his employer for injuries to. plaintiff’s eye caused by caustic soda, the question of defendant’s negligence is for the jury where it appears that at the time of the accident the plaintiff was helping to roll up an iron barrel of caustic soda on an incline, that in one of the heads of the barrel there was a hole only six inches less than the diameter of the head itself, that in this hole was stuffed a piece of burlap without being fastened, that the pressure of the contents of the barrel easily forced the burlap out of place, and that the caustic soda flowing out fell on the plaintiff and injured him.

      In such a case where the defendant offers evidence to the effect that the accident was due to the negligence of other workmen in adjusting the rope around the barrel, and that the plaintiff knew of the danger and assumed the risk, and these allegations are contradicted by the plaintiff, a verdict and judgment for plaintiff will not be reversed.
    Argued March 23, 1908.
    May 4, 1908 :
    Appeal, No. 395, Jan. T., 1907, by defendant, from judgment of C. P, No. 2, Phila. Co., June Term, 1905, No. 4,448, on verdict for plaintiff in case of Henry Escher v. Southwark Mills Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    The court refused binding instructions for defendant.
    Yerdict and judgment for plaintiff for $2,500. Defendant appealed.

      Errors assigned were in refusing binding instructions for defendant and in refusing to enter judgment for defendant non obstante veredicto.

      George L. Crawford, of Crawford c& loughlim, for appellant,
    cited: Diehl v. Lehigh Iron Co., 140 Pa. 487; Boyd v. Harris, 176 Pa. 484 ; Purdy v. Westinghouse Electric & Mfg. Co., 197 Pa. 257 ; Jones v. Burnham, 217 Pa. 286 ; Lee v. Dobson, 217 Pa. 349 ; White v. Roydhouse, 211 Pa. 13 ; Hartenstine v. United Tel. & Tel. Co., 219 Pa. 95.

      Eugene Raymond, for appellee,
    cited : McGeehan v. Hughes, 217 Pa. 121; Wagner v. Chemical Co., 147 Pa. 475 ; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543 ; Sowers v. McManus, 214 Pa. 244; Lavia v. Kountz Bros. Co., 31 Pa. Superior Ct. 481.
   Opinion by

Mr. Justice Mestrezat,

This case was submitted to the jury in a clear and adequate charge to which no exception was taken and no error is assigned. The learned judge was entirely accurate in his statement of the law applicable to the case, and pointed out in detail the evidence submitted on either side bearing on the questions of fact. The only complaint here, requiring consideration, is that the court erred in not directing a verdict for the defendant company.

The defendant contends that the plaintiff knew and, therefore, assumed the risk of the employment, and that his injuries resulted from the negligence of a coemployee in handling the loose rope which was used in removing the iron barrel of caustic soda from the floor to the top of the tank in which the soda was to be emptied from the barrel. It is further claimed by the defendant company that the method used by it in handling the caustic soda was not the proximate cause of the accident by which the plaintiff was injured, and hence it is not responsible in this action.

The evidence clearly discloses that the plaintiff was an ignorant German, not familiar with the English language, and had been employed by the defendant for some time prior to the accident to work on or operate a machine. He was called from this service into a dark frame shed to assist three other men in removing this iron barrel containing caustic soda from the floor to the top of the tank into which the soda was to be emptied. It appears, and is undisputed, that this iron barrel was about three feet long and one and a half feet in diameter, and that a hole had been cut in one of the heads, the diameter of which was about six inches less than the diameter of the head itself. When the plaintiff appeared on the scene to assist the other three workmen in hoisting the barrel, there was a piece of burlap in the hole in the head of the barrel, placed there of course to prevent the soda from leaving the barrel. While the barrel was being rolled up the incline and when it was within about one foot of the top, the burlap came out of the hole, and the soda ran out and part of it got in the plaintiff’s eye and injured it very severely.

The evidence in the case does not support the defendant’s position that the plaintiff knew of the risk incident to the work of removing the barrel of caustic soda from the floor to the top of the tank. The plaintiff testified positively, that he did not know of the danger. He admits they put oil on his hands and told him not to touch the barrel with the blank hand, but he testified that he did not know that caustic soda was in the barrel until after it got on his face. To meet this testimony, the defendant company offered in evidence the paper, dated June 27, 1904, which the plaintiff signed and which purported to state how the accident happened. It was strenuously urged by the counsel for the defendant company, and the court was asked to so instruct the jury that if they believed the paper correctly stated the manner of the accident, that the verdict should be for the defendant. It was claimed that the statements in this paper as to the manner and cause of the accident contradicted the testimony of the plaintiff on that subject and clearly showed that the accident to the plaintiff was not attributable to the negligence of the defendant company. The court, however, did not agree with the defendant’s counsel as to the effect or construction of the paper. The learned trial judge in his charge to the jury discussed the paper at length and submitted it as evidence for the consideration of the jury. He said in his charge : “ The story of that paper is not inconsistent radically with the story of the plaintiff on the stand. Any skirmishing over that paper was wholly unnecessary.” He did not hold with the defendant’s counsel that the language of the paper conclusively established that the plaintiff’s injuries were caused by the negligence of a fellow workman. He went still further, and told the jury that it was a question for them whether the language of the paper was the language that the plaintiff used to the scrivener who wrote it. At the time the paper was prepared the plaintiff, not familiar with the English language, gave his statement in German, and it was translated and written in English by another party at the defendant’s office. It can be easily seen how a mistake could be made, and that the paper in English would not disclose the plaintilf’s real version of the manner and cause of the accident. In fact, two of the immaterial statements in the paper are now conceded by both skies to be incorrect. Hence, it may well be that there are other inaccurate statements in the paper, and that they arise from a misinterpretation or an erroneous translation of the language used by the plaintiff. At all events, these matters were for the jury, and were correctly submitted for their consideration. Ve agree with the learned trial judge that there is no radical difference between the plaintiff’s testimony and the statements contained in the paper which he signed. Whether the plaintiff knew the danger of the risk he encountered when, under the directions of the defendant company, he assisted its other employees in removing the barrel to the top of the tank was clearly for the jury, and there was ample testimony to support their finding.

If the plaintiff’s injuries resulted from the negligence of a coemployee in adjusting the rope used in taking the barrel of soda to the top of the tank, the defendant company is not responsible for the injuries, and there could be no recovery in this action. And this was the view of the learned judge, and he distinctly so ruled on the trial of the cause. In his charge to the jury he said : That paper (referred to above), says it was the use of the rope that did this thing, and, of course, it was the use of the rope by the defendant’s people, employees as we call them. It was not used by anybody else. We cannot avoid that conclusion. The defendant’s servants were there acting. If you find it was so used by those men, and that as a consequence of that use this accident happened, it will be your duty to find a verdict for defendant.” In concluding his instructions on this branch of the case the learned judge further told the jury that if the use of the rope caused the injury there could be no recovery, and clearly defined the issue which he submitted to the jury. He said : “ If you find from the discretion I have recognized as yours in the examination of these proofs that there was a negligent furnishing of appliances in the matter of the barrel, in the matter of the burlap, and so forth, which amounted to a violation of the defendant’s duty to the plaintiff, and that as a consequence of that he was hurt, then you may find a verdict for the plaintiff, but in order to reach that conclusion you must find that the use of the rope was not the immediate cause of the injury, but that it was some defect in the appliances which caused the injury. If you find as thus indicated to you, you will find a verdict for plaintiff, otherwise you will find a verdict for defendant.”

It will, therefore, be observed that the learned trial judge submitted to the jury the one question, whether the plaintiff was injured by the defective or unsafe appliances furnished him to perform the services for which he was employed. Under the clear and explicit instructions of the court the jury were given for consideration the single issue, and they have found that the defendant company was negligent in not furnishing the proper appliances with which to do his work. Under the court’s instructions the verdict must have been for the defendant if the jury had found that the plaintiff’s injuries were caused by a defective rope or by a careless handling of the rope by a fellow employee or by negligence On the part of the plaintiff. The jury has found against the defendant on each of these several matters which, if either or all of them had existed, would have been a complete defense and a barrier to the plaintiff’s right to recover in this action.

As correctly said by a recognized authority, “ great caution is necessary in tasting and handling caustic soda, as it rapidly destroys organic tissue.” That it is a dangerous chemical and must be used with the greatest caution is well known, and, it must be assumed, was known to the defendant company. It was used by the company in its business, and its ingredients and highly dangerous character were, of course, known to the defendant. It was conveyed by the defendant to its tank in an iron barrel, which was certainly a proper precaution for the protection of those who had to handle it. Any less careful manner or method of .conveying a drug so dangerous would well warrant a jury in finding negligence if in j uries resulted therefrom. Was it, therefore, negligence in the defendant company to use for this purpose an iron barrel with a hole in one head of the dimensions shown by the testimony which was closed by placing in it a loose piece of burlap ? The testimony disclosed the fact that the edge of the hole was turned outward, and hence the material in the barrel could easily push the burlap from its place. The hole, it will be remembered, was only six inches less in diameter than the head of the barrel. The burlap was not fastened nor secured in the hole, but only “pushed in.” It is apparent that it would not, and did not, require much force to remove it from the hole. The barrel was rolled to the top of the tank, a distance of possibly twelve or fifteen feet and to a height of between four and five feet, and then was emptied by using a rope. Three men were not sufficient to do the work, and hence a fourth man, the plaintiff, was on this occasion directed by the company to assist. It is manifest that the material in the barrel was heavy, and that the- burlap would afford very little resistance to the flow of the soda from the barrel. This was so apparent, and the consequent danger to the servants engaged in the work was so obvious, that any reasonably prudent man would not have pursued such means or appliances to carry the soda to the tank. It was, therefore, a question for the jury whether the method thus adopted by the defendant company in conveying the soda to the tank was negligent and improper, and was the cause of the plaintiff’s injuries. As said by the learned trial judge in his charge: “ W ere they negligent in using it (caustic soda) as they did use it there, that is to say, in causing a barrel containing it to be removed as this barrel was, with a view to having it emptied ? ” This was the controlling question in the case, a proper one for the jury, and it has been found in favor of the plaintiff.

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


author: Mr. Justice Elkin,

text:
    McCahan’s Estate
    (No. 1).

      Decedents’ estates — Claim for services — Rescission—Contract—Finding of fact.

    A finding of fact by the orphans’ court based on sufficient evidence that a claimant against the estate of a decedent under a contract of employment had treated the contract as rescinded, will not be reversed in the absence of manifest error.
    Argued March 24, 1908.
    Appeal, No. 51, Jan. T., 1908, by Annie Gertrude Taggart, from decree of O. C. Phila. Co., Jan. T., 1907, No. 551, dismissing exceptions to adjudication in Estate of Mary O. MeCahan, deceased.
    Before Mitchell, O. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication of Dallett, J.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to adjudication.

      May 4, 1908:

      Francis Shunte Brown, of Simpson db Brown, with him F. L. Hallman and Bobert S. Bright, for appellant.

      John G. Johnson, with him. Frederick S. Drake and. John Weaver, for appellee.
   Opinion by

Mr. Justice Elkin,

The assignments of error in this case, either directly or inferentially, relate to findings of fact by the learned auditing judge, and this appeal is intended to challenge the correctness of those findings. It is earnestly contended that there was error in finding as a fact that the appellant had treated the contract relied on as rescinded, and in not finding that she was wrongfully prevented from performing her part of the contract of service. It is contended for appellant that she had a contract of employment for a fixed period, and was wrongfully discharged .before the expiration of the period, and that by reason of the wrongful discharge she could either sue for a breach of the contract at once or wait to the end of the contract period, even if she. had not performed the service, her readiness to serve being considered the equivalent of performance within the meaning of the law. No doubt this is a sound rule of law, but it is predicated upon two essential conditions : first, that the servant had been wrongfully discharged, and, second, that she had tendered performance after the wrongful discharge. It will be observed that both conditions are dependent upon the facts, which, in the present case, have been found against appellant in these respects. The case, therefore, comes within the well-established rule that findings of fact by a court below will not be disturbed by an appellate court except for manifest error, nor is it sufficient to say that if the testimony had been before us in the first instance we might have found differently: Lazarus’s Estate, 142 Pa. 104; Plankinton’s Estate, 212 Pa. 235.

We do not find such manifest error in the essential findings of fact as would justify our disturbing the conclusion reached by the learned court below.

Assignments of error overruled and decree affirmed, costs to be paid out of the estate.


text:
    McCahan’s Estate
    (No. 2).

      Decedents’ estates — Contract—Claim for services — Allowance for services — Findings of fact — Attorney at law — Evidence—Contest.
    A finding of fact by an auditing judge of the orphans’ court based upon sufficient evidence and confirmed by the court in banc to the effect that' a claimant for services against a decedent’s estate had a contract •of employment with the decedent, will not be reversed in the absence of manifest error.
    An attorney at law may testify as to declarations made by decedent in reference to a contract of employment which decedent had made with a niece, and that decedent had instructed him to insert in a will, which he had subsequently drawn, certain terms of the contract of employment.
    Where a will directs that any of the legatees contesting or attempting to contest the will shall lose their legacies, a mere caveat will not be construed as a contest of the will.
    Argued March 24, 1908.
    Appeal, No. 67, Jan. T., 1908, by Maria L. Taggart, from decree of O. C. Phila. Co., Jan. Term, 1907, No. 551, dismissing exceptions to adjudication in Estate of Mary C. McCahan, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    ' Exceptions to adjudication of Dallett, J.
    The material portions of the adjudication were as follows:
    The testatrix died November 12,1905, leaving a will whereby, after making certain pecuniary bequests as set out in the petition for distribution and giving Robert McCahan her ten shares of Francisco Sugar Company stock and her sister, Maria L. Taggart, her jewelry, household furniture, etc., and 100 shares of her stock in the W. J. McCahan Sugar Refining Company, she gave to her trustee seventy shares of the McCahan Sugar Company stock, in trust, to pay the income to her brother, David Taggart, for life, and upon his death to pay the principal to his children, etc., and gave thirty shares of said stock to her trustee, in trust, to pay the income to her niece, Anna G-. Taggart, for life, and upon her death to pay the principal to the issue of the said Anna G-. Taggart, etc.
    The residue of her estate she gave to her sister, Maria L. Taggart, and her brother, David Taggart, in equal shares.

      She appointed her sister, Maria L. Taggart, executrix and trustee, and provided that in the event of any of her legatees contesting, or attempting to contest, her will such legatees should take no part of her estate, but their legacies should fall into the residue.
    Messrs. Hallman, Bright and Brown presented a claim on behalf of Anna Gertrude Taggart for the value of 100 shares of the W. J. McCahan Sugar Refining Company stock, with interest from 1901, and testimony in reference to the claim was taken.
    It appears therefrom that in the fall of 1900, on returning from a trip to Europe, the claimant went to live with.her aunt, the testatrix, and continued to live with' her until the end of July, 1902. Having studied physical culture and dramatic art, she had matriculated in the Women’s Medical College, but she gave up these pursuits on her aunt’s promise that if. she would live with her until her death she would- give her 100 shares of McCahan sugar stock. On May 2, 1902, the' testatrix executed a will by which she gave to her niece, the claimant, “ in consideration of my love and affection for her, and of her faithful services to me,” 100 shares of the W. J.. McCahan Sugar Refining Company stock, and in addition, after certain pecuniary bequests and the gift of the income from 100 shares of said stock to her sister, Maria L. Taggart, for life, gave her said niece the residue of her estate, including therein the remainder interest in fifty shares of the stock, the income of which she had bequeathed to her sister for life.
    The testatrix, who had been afflicted with heart trouble, on July 9, 1902, suffered a stroke of apoplexjq and cried for her sister, the present accountant, who was sent for. The sister came in answer to the request, and assumed charge of the house and of the patient, and displaced the niece, who, being, refused access to her aunt’s room and, shorn of her power over the household, left the house. On November 12,1902, the testatrix executed another will, that admitted to probate, the provisions of which are hereinbefore set out. - -
    The contest over Mrs. McCahan’s money evidently began long before her death. From 1900 until 1902 the niece was-in favor, but in 1902 the sister superseded the niece in the testatrix’s affections, and continued to occupy the close relationship until her death.
    Disappointed at not receiving by the will probated the 100 shares of sugar refining company stock, the niece now claims the value of that stock under a contract with the testatrix.
    The first question,- therefore, is, was there a contract ?
    Mrs. Mogee, Sarah L. Gardiner, Elizabeth Hart and Frederick H. Stillwagen, the attorney who prepared the first will, and a competent and most important witness (Dowie’s Estate, 135 Pa. 210 ; Padelford’s Estate, 190 Pa. 35), have testified to the testatrix’s declarations that she had promised the 100 shares of stock.
    Mr. Stillwagen testified : “ She said that Miss Anna Taggart had come to her only for á little while, and had since wanted to go back and continue her studies and ultimately read medicine, but she said : ‘ I have-persuaded her not to do that. I told her if she would stay with me and live with me as long as I lived I would see her well taken care of.’ She said : ‘ I have promised her 100 shares of the sugar stock,’ and she said : ‘ Some day I want to draw a will, and I want that put in the will.’ ” Mr. Stillwagen subsequently prepared the will, dated May 2, 1902.
    Mrs. Mogee testified that when the testatrix came to her to ask for a loan she (the testatrix) declared : “You give me the $500 and you will be well secured, as I have promised to give my niece 100 shares of the William McCahan sugar stock as soon as the executors of my deceased husband’s estate turn it over to me.” And again : “ She told me that Anna had given up her medical pursuits and every source of income, and had gone to live with her, to remain with her as long as Mrs. .Mc-Cahan lived.” And again, that when Mrs. McCahan paid her the money she owed she said : “ I have settled up with everybody, and Miss Taggart, Miss Anna, said : ‘ Everybody, aunt, but me. You have not given me my 100 shares.’ She said : ‘ That is all right; I will fix that, Anna.’ ”
    Mrs. Gardiner, the seamstress employed by Mrs. McCahan, testified : “ She told me she had taken Anna away from her studies and she intended to do what was right by her ; that she intended to provide for her so she would not have to teach any more. She said she was not strong enough to teach, and not strong enough to study medicine and practice. She did not wish her to do it, and she was going to provide for her so she would not have to do anything after her death.” And again, that when she told her niece to draw two checks, one for herself and one for her sister Maria, the claimant, said to her : “ ‘ Aunt, never mind my check; draw Maria’s.’ She says, ‘ I have providéd for you,’ and Anna said, ‘ In what way ; do you mean the 100 shares?’ And she said, ‘Yes.’”
    And Miss Hart testified : “ She (Mrs. McCahan) went on to tell me that she had pursuaded Anna to give up her studies and to come there to live, that she would always provide for her, and spoke about Maria and Sarah being jealous, and how provoked they would be, and Anna told her, she said, ‘ Aunt, won’t they be mad when they find out you gave me the 100 shares ? ’ and Mrs. McCahan said, ‘ Yes, they would.’ ”
    This testimony, in the opinion of the auditing judge, coupled with proof of the fact that the claimant did live with and perform certain services for the testatrix until the end of July, 1902, clearly establishes a contract: Thompson v. Stevens, 71 Pa. 161; Harper’s Estate, 196 Pa. 137.
    The character of the services, in view of the contractual relation, is not of the greatest importance, but while Miss Hamilton (a friend of the testatrix who visited her not less frequently than once a month), testified with regard to the claimant : “ The only thing I saw was her having a good time in every way ; the only thing she did was to help Mrs. McCahan spend her money ; that is the only thing I saw her do.” Mrs. Mogee, who had been introduced to the testatrix by the claimant, and whose visits averaged one in ten days for a considerable period, testified that the complainant “ did everything from kitchen maid to trained nurse; ” Mr. Stillwagen, who saw her on several visits, that “ I should call her a nurse to her aunt,” and Miss Gardiner, that the claimant performed “ all the service that a nurse would do for her. She bathed her limbs (they were very much swollen and had to be bathed every morning), combed her hair, dressed her and did everything for her, besides having charge of the house.”
    The question to follow naturally is, has the claimant fulfilled her part of the contract ? And the answer necessarily is “ No.” But it is clear that she was not pérmitted to complete it.
    Dr. Kelley, called by the accountant, testified in answer to the question, “ Will you give us a reason why you objected to Miss Anna Taggart-coming into the room and did not object to Maria coming into the room ? ” “ Because during my visits when Miss Anna Taggart came into the room she had a deleterious influence.” And Miss Rambo'testified : “ Miss Taggart inquired if she might enter the room. She first asked the doctor to let her in, and he told her she could not go in. She asked Miss Maria Taggart.to let her go. in, and she told her she couldn’t let her go in, as her sister was too ill,” and in answer to Mr. Johnson’s question, “ Do you know any reason why there was a difference (why the testatrix was not too ill to see her sister and was too ill to see her niece) ? ” answered “ Yes, because Mrs. McCahan asked me if I would not keep her niece out of the room.” And Miss Gardiner testified that Miss Maria Taggart had made it so unpleasant for the claim-, ant by taking all power out of her hands,, and “instructing the servants -not to obey any orders of hers, ” that she could not stay.
    Having performed a portion of her contract, therefore, and further opportunity to complete performance being refused by her aunt, two courses were open to her: the one to insist upon an opportunity to do her part, and the other to accept the rescission of the contract and withdraw. That she chose the latter course appears without -doubt from' the letter of her then attorney, Mr. Pepper, who wrote on July 29, 1902: “ Miss Taggart reports the situation, of affairs at 1516 South Sixth street as being intolerable to her. She accordingly ex-, pects to withdraw from the house in two or three days. She will leave, whether or not she is -permitted to see her aunt, Mrs. McCahan, again. She prefers, however (since she took up her residence at the house at Mrs. McCahan’s .invitation), to terminate her residence at Mrs. McCahan’s personal request:” Moorhead v. Fry, 2é Pa. 37.

    To what compensation, under these circumstances, is she en-. titled? She apparently never saw her aunt after July, 1902, although she lived until November 12, 1905. Her compensation was not due under the contract until her aunt’s death. She perhaps expected, but it does not appear that she was notified, that she would receive it, but when the will is probated she finds that instead of 100 shares of the sugar company stock absolutely, worth in 1901, according to the testimony, $200 per share, she only receives thirty shares for life, with some remainder interest in seventy shares bequeathed to her father for life. Is this a sufficient compliance on the part of the testatrix ? Figuring roughly, her life estate is worth but one-third of $6,000, or $2,000, while figured on her contract, as subsequently determined by the years testatrix survived, she earned for about twenty-one months out of sixty months, for which she was to be paid $20,000, or $7,000, a sum perhaps more than might be recovered upon quantum meruit, based upon the usual salary earned by a companion, combined with what would be reasonable damages for giving up the claimant’s medical pursuits, but a sum figured at the rate determined upon by the parties themselves.
    Deducting, therefore, the value of the life estate as being part payment on the contract (Reynolds v. Robinson, 64 N. T. 589), the auditing judge allows the claim to the extent of $5,000, without interest.
    The filing of the caveat may not, in the opinion of the auditing judge, be construed as a contest of the testatrix’s will.

      Errors assigned were in dismissing exceptions to adjudication.

      Frederick S. Drake, John Weaver and John G. Johnson, for appellant.
    It is a well-recognized proposition that this court will reverse the findings of fact of a lower court if such findings are manifestly erroneous, and appellant submits that the findings in this case, that there was a contract, is clearly erroneous : Carpenter v. Hays, 153 Pa. 432; Graham v. Graham, 34 Pa. 475 ; Miller’s Est., 136 Pa. 239.
    The protection which is given to confidential communications from client to counsel does not cease with the death of the client, where his estate or character might be injuriously affected by their disclosure : Dowie’s Est., 135 Pa. 210; Bennett’s Est., 8 W. N. C. 287.

      E. L. Hallman,, Robert S. Bright and Simpson & Brown,
      for appellee.
    May 4, 1908:
    The findings of fact made by the learned auditing judge cannot be now set aside unless clear error or mistake is shown : Lowry’s Est., 5 Pa. Dist. Rep. 729 ; Mayhew’s Est., 155 Pa. 94.
    The evidence of Frederick EL. Stillwagen cannot be excluded on the ground of privileged communication between client and lawyer: Goodwin Gas Stove, etc., Co.’s App., 117 Pa. 514; Turner’s Est., 167 Pa. 609 ; Weaver’s Est., 28 W. N. C. 95 ; Turner v. Warren, 160 Pa. 336 ; Bennett’s Est., 8 W. N. C. 287 ; Dowie’s Est., 135 Pa. 210 ; Padelford’s Est., 190 Pa. 35 ; Russell v. Jackson, 9 Hare, 387; Nelson’s Est., 132 Cal. 182 (64 Pac. Repr. 294); Doherty v. O’Callaghan, 157 Mass. 90 (31 N. E. Repr. 726); Graham v. O’Fallon, 4 Mo. 338; Kern v. Kern, 154 Ind. 29 (55 N. E. Repr. 1004).
    There was no contest of the will by Annie Gertrude Taggart.
   Opinion by

Mr. Justice Elkin,

The principal question raised by this appeal is whether the evidence produced before the auditing judge was sufficient to establish a contract of employment and service alleged to have been entered into between the decedent, whose estate constitutes the fund for distribution in this proceeding, and the appellee, who presented her claim under such contract, and asked for an allowance of the same. The auditing judge and the court in banc have so found, and we concur in the views expressed and findings made by the learned judges who heard and determined the case in the court below. The contention as to the admissibility of declarations made by decedent to counsel and as to the proviso in the residuary clause relating to an attempt to contest the will, under the facts of this case, cannot be .sustained.

Decree affirmed, costs to be paid out of the estate.


author: Mr. Justice MESTREZAT,

text:
    Van Leer v. Van Leer.

      Wills — Trusts and trustees — Spendthrift trust — Provisions against son’s wife.

    Where a testator by a codicil revokes an absolute devise previously given to his son in his will, and in apt words creates for the son a spendthrift trust pure and simple, the fact that the codicil also contains an express prohibition against liability for the “support, contracts, debts or engagements,” of the son’s present wife, naming her, and directs that such wife shall derive no benefit from the income or principal of the trust estate, the court has no power after the death of the testator and after the son has secured a divorce from his wife, to declare the trust ended, and direct a payment and transfer of the trust estate to the son free and discharged from the trust.
    In construing a will, the object of the courts is to ascertain, not the intention simply, but the expressed intention of the testator, i. e., the intention which the will itself, either expressly or by implication, declares: or (which is the same thing) the meaning of the words — the meaning, that is, which the words of the will, properly interpreted, convey.
    When the meaning of a will is clear from language that is unmistakable, the instrument interprets itself.
    Argued March 24, 1908.
    Appeal, No. 65, Jan. T., 1908, by John P. Van Leer, from decree of C. P. No. 4, Phila. Co., June T., 1904, No. 3,388, dismissing exceptions to master’s report in case of Edward Shippen Van Leer v. George R. Van Leer, Bella Van Leer, Joseph W. Van Leer, Jr., May Van Leer, John P. Van Leer (appellant), and Elizabeth N. Van Leer, his "Wife, Helen Van Leer, Arabella Van Leer and George R. Van Leer, Surviving Executor and Trustee under the Will of Joseph W. Van Leer, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for partition.
    From the record it appeared that the bill was filed by one of the seven children of the testator, praying for the partition of the real estate of the testator. The averment of the bill, so far as material to the present controversy, was that each of six of the testator’s children, including the complainant, was entitled to an undivided one-seventh share of two-thirds of the testator’s real estate, in fee; and that a like share of a remaining child of the testator, John P. Yan Leer, the appellant, was vested in George R. Yan Leer, surviving executor and .trustee under the will of the testator and codicil thereto, in trust for the said John P. Yan Leer, during his life.
    No answer was filed to the bill, and a deóree pro confesso was entered, directing partition to be made, and referring the proceedings, “ by agreement of the parties,” to a master.
    Subsequently, under order of the court, the master éxposéd the real estate to public sale, and realized therefrom the net sum of $38,980, one-third of which he awarded in' trust for testator’s widow during her life, and the remaining two-thirds he divided into seven parts, six of which he distributed among six of the testator’s children, reserving for further consideration and report, upon request of all the parties in interest, the contention of testator’s seventh child, John P. Yan Leer, that the trust created as to him by the testator’s codicil to his will was a special trust intended solely to bar his then wife, Maud D. V an Leer, from any participation in his share, and that he, being now divorced from Maud D. Yan Leer, was entitled to receive his distributive one-seventh share or $3,712.38, free and discharged of the trust.
    All the codistributees filed with the master a written declaration that they were satisfied that the testator’s purpose in creating the trust as to John P. Yan Leer had been accomplished by the divorce of the latter and his former wife, Maud D. Yan Leer, and setting forth their reasons in the nature of a case stated. George R. Yan Leer signed this instrument individually, but “ not as executor or trustee.”
    The master awarded the distributive share of John P. Yan Leer to George R. Yah Leer, surviving executor and trustee under the will and codicil of the testator, and dismissed exceptions filed to his report by John P. Yan Leer.
    On appeal, the lower court, without opinion filed, dismissed the exceptions and confirmed the master’s report.

      Error assigned was the decree of the court.

      Howard Benton. Lewis, for appellant.
    The purpose of the testator, in placing in trust by codicil the fee previously given the appellant by will, was to exclude the woman whom appellant had married, and from whom he had separated, from the exercise of any marital rights against his estate : Stambaugh’s Est., 135 Pa. 585 ; Postlethwaite’s App., 68 Pa. 477; Tyson’s Est., 191 Pa. 218 ; Hoge v. Hoge, 1 S. & R. 144; Decker v. Directors of the Poor, 120 Pa. 272; Board of Charities, etc., v. Lockard, 198 Pa. 572; Thackara v. Mintzer, 100 Pa. 151 ; Lewellyn v. Levy, 163 Pa. 647.
    May 4, 1908:
    The divorce of the appellant from. his former wife accomplished the purpose of the codicil; the trust therein created is executed, and, the legal and equitable title coalescing in the appellant, he is entitled to the full control of what, before the trust was created, was absolutely his : Koenig’s App., 57 Pa. 352; Lee’s Est., 207 Pa. 218 ; Bush’s App., 33 Pa. 85 ; Steacy v. Rice, 27 Pa. 75 ; Smith v. Starr, 3 Whart. 62; Ogden’s App., 70 Pa. 501.
    - No paper-book or argument for appellee.
   Opinion by

Mr. Justice MESTREZAT,

This is an appeal by John P. Yan Leer from the decree of the court of common pleas No. 4, of Philadelphia county, in refusing to award him in fee the undivided one-seventh of two-thirds of the real estate of his deceased father. It would certainly give us pleasure to grant the desire of the appellant’s mother and brothers and sisters and decree the property in question to the appellant free and discharged of the trust. Our decree, however, cannot be based upon our pleasure but upon the interpretation of the will of the testator. We are clear that the learned master interpreted correctly the codicil to the testator’s will, and Ave agree with his conclusion that the trust is not a special trust but an active spendthrift trust, and that the legal fee is not in John.”

There can be no doubt that the testator by his will intended to give his son John the undivided one-seventh of the two-thirds of his real estate in fee. His will, executed March 28, 1894, so declared. But it is equally clear that for reasons satisfactory to himself he had changed his mind and his intention when- he executed the codicil to his will on May 22, 1896. That codicil does not affect- the interests of any of the other six children who had been given, by the will, an equal interest in the testator’s estate. The codicil dealt exclusively with John P. Yan Leer’s interest or share, and it plainly and explicitly disposed of that share. It is contended by John that in executing the codicil the sole purpose of the testator was to prevent the woman whom John had married, and from whom he had separated, deriving any benefit or advantage from the income or principal of the estate; that the object was to create a special trust for that purpose, and that the divorce of the appellant from his wife executed the trust and accomplished the object of the testator. The learned master, however, as we have seen, did not agree with that construction of the codicil, but held that the testator intended to and did create an active spendthrift trust of the estate which had been given to John in fee by the will.

The sole basis of the appellant’s contention is the supposed intention of the testator obtained dehors the will. The mother and brothers and sisters of John, remainder-men under the codicil, declare in the paper of June 29, 1907, that the only purpose the testator had in executing the codicil was to exclude John’s wife from participating in any part of the testator’s estate and that the trust created by the codicil for John was fully executed and terminated by the divorce of John from his wife. This contention is in direct opposition to the language of the codicil. It revokes the devise to John in the will, and devises to the testator’s executors the same interest given John in the will, but in trust to receive the income and pay it to John for his own use and without anticipation, “and so that the same shall never at any time or in any manner be liable for his debts, contracts or engagements, or subject to any distress, execution, or levy therefor, or to any process, whatever, on the part of any creditor or creditors of my said son, and expressly so that it shall not be liable for the support, contracts, debts or engagements of his present wife, Maud D. Yan Leer.” The codicil, after making this provision and authorizing John by will to appoint the principal of his share at his pleasure, makes an alternative disposition of the estate on failure of John to appoint. At the conclusion, the codicil also declares that John’s wife should in no event or in any circumstances derive any benefit from the income or principal of the trust created for John. It is clear, and no authorities need be cited to sustain the proposition, that had the parts of the codicil referring specifically to John’s wife been omitted, there would have been created an active spendthrift trust. This court has declared time and again that such is the effect of substantially the same language as that used in this codicil. The instrument itself declares the intention of the testator to annul and revoke the devise in fee made to John in the will. The intention to revoke is manifest and is expressed in apt terms. In language equally certain and unequivocal, a trust is created and the purpose is definitely and unequivocally declared in language not to be misunderstood. The income from the principal was to be paid into John’s own hands. He had no right of anticipation ; neither could it be subjected to his debts, contracts or engagements; nor was it liable to distress, execution or levy by any creditor. Standing alone this language is so clear and comprehensive that there can be no basis whatever for any doubt as to the testator’s intention. That intention is made clearer by the devises over of the principal of the estate. They show that the principal was not to vest absolutely in John. It is true that he is given the power of appointment. He may dispose of it by will, but that discloses no intention to vest in him the fee and permit him to dispose of it for his own use during his life. The power, therefore, does not change the otherwise clearly expressed intention of the testator to create an active spendthrift trust.

It is contended, however, that the intention to create a special trust to protect the estate against John’s wife is disclosed by the express prohibition in the codicil against liability “for the support, contracts, debts or engagements of his present wife, Maud D. Yan Leer, ” and the provision that the wife shall derive no benefit from the income or principal of the trust estate. But these provisions of the codicil do not modify, limit or in any way change the spendthrift trust previously declared in the codicil. Eliminating the special reference to John’s wife in the codicil, the intention of the testator, expressed in apt language, is that the trustees shall hold the principal of the estate for the persons named in the codicil, and that the income shall be devoted exclusively for John’s personal use, protected from any claim of his creditors and against any writ or process on any judgment or debt against Mm. Unquestionably the testator’s intention was to defeat any claim that John’s wife might have or obtain against the trust estate, but his intention is equally clear and expressed in language of no doubtful signification that he intended to extend a protection to the estate against any and all other claims and debts which John might incur or become liable for. This intention is as apparent and clearly expressed as the intention to defeat the wife’s claims against the trust estate. If the testator intended simply to protect the trust estate against John’s wife, he has failed to do so in language that can be so construed by any known rules of interpretation. He has declared a spendthrift trust pure and simple, and the special reference to John’s wife has neither added to nor detracted from it.

In Hawkins on Wills (2d Am. ed.), p. 1, it is said: In construing a will, the object of the courts is to ascertain, not the intention simply, but the expressed intentions of the testator, i. e., the intention which the will itself, either expressly or by implication, declares: or (which is the same' thing) the meaning of the words — the meaning, that is, which the words of the will, properly interpreted, convey.” In Woelpper’s Appeal, 126 Pa. 562, we said (p. 572): “ It is often said .... that £ the question in expounding a wTill is not what the testator meant, but what is the meaning of his words.’ Put by this it was never intended to say that the testator’s meaning when apparent can be disregarded, but, that it cannot be got at aliunde, by what he might have meant, or even what under the circumstances perhaps he would have meant, but only by what he said. The search is confined to' his language, but its object is still his meaning.” And in Huber’s Appeal, 80 Pa. 318, this court said (p. 358): ££ When the meaning is clear from language that is unmistakable, the instrument interprets itself.”

In construing the codicil and will of Joseph W. Yan Leer, we cannot go outside of its terms or apply any artificial canons of construction. The language is clear and unmistakable and discloses the testator’s intention. It is not open to doubt, it creates no necessity for going outside of the instrument itself to ascertain the testator’s intention. It may be that his chief and possibly his only purpose in revoking the devise to his son John and in creating the trust was to prevent John’s wife from participating in his estate, but if so it does not appear from the codicil itself, which manifests a clear and unmistakable intention to create an active spendthrift trust and thereby protect John and his interests from assault from any and all quarters.

We concur in the conclusion reached by the learned master and approved by the court below, and, therefore, the decree is affirmed.