author: by Mr. Justice Moschzisker,

text:
    Kelly, Appellant, v. Thomas.

      Corporations — Suit by stoclcholders against officers — Parties— Corporation as party — Fraud—Foreign corporation — Multifariousness.

    1. On a bill in equity filed by a stockholder of a corporation against certain of the officers and directors of the company, to compel an accounting and payment to the plaintiff for moneys which should have accrued to the corporation but for the fraudulent acts of the defendants, the presence of the corporation as a party to the record is indispensable to the maintenance of the action.
    2. Where a foreign corporation has no property and does not conduct its business in this state, a court of equity in Pennsylvania has no jurisdiction over a bill filed by a stockholder on behalf of the company against certain of the officers and directors of the company to compel a,n accounting for moneys alleged to have been fraudulently taken from the company. Such a bill concerns the management of the internal affairs of a foreign corporation over which the courts of this state have no jurisdiction; nor in such a suit can the Pennsylvania court review a judgment entered against the company in the state of its domicile on general allegations that the judgment was entered through the fraud and collusion of the officers of the corporation.
    3. A bill in equity is multifarious which is brought by a stockholder on behalf of the corporation against certain of its directors and officers for an accounting for moneys of which the company had been fraudulently deprived, and also for an accounting against another company for moneys obtained by sales which should have been made through the corporation, and also to recover from the other company and the directors of the corporation a loss sustained by the plaintiff by reason of a depreciation in the value of his stock.
    Argued Nov. 1, 1911.
    Appeal, No. 237, Oct. T., 1911, by plaintiff from decree of C. P. No. 4, Allegheny Co., Second Term, 1910, No. 348, dismissing bill in equity in case of William J. Kelly v. George W. Thomas, Martha A. Friend et al., Executors of the Estate of James W. Friend, deceased, F. N. Hoffstott, C. Jutte & Company, a Pennsylvania corporation, and Mississippi River Coaling Company, a Louisiana corporation.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an accounting and payment to the plaintiff of all moneys due from sales of coal made by certain of the defendants which should have accrued to the benefit of the Mississippi River Coaling Company, and of the moneys which should have been derived from coal that could and would have been sold by said Company but for the alleged fraudulent and unlawful acts of the defendants; further, to compensate the plaintiff for the depreciation in the value of his stock in the said Company, alleged to have been wholly destroyed by the acts or omissions of the defendants.
    On demurrer, Swearingen, P. J., filed an opinion dismissing the bill, from which the following material excerpts are taken:
    “The bill was filed by William J. Kelly, of New Orleans, Louisiana, against George W. Thomas, of Pittsburgh, Pennsylvania; Albert G. Thomas, of New Orleans; Martha A. Friend, Charles W. Friend and Theodore W. Friend, executors of the will of James W. Friend, deceased, of Pittsburgh, Pennsylvania; F. N. Hoffstott, of either Pittsburgh or New York; C. Jutte & Company, a corporation existing under the laws of Pennsylvania; and the Mississippi Coaling Company, a corporation existing under the laws of Louisiana.”
    “The complainant averred that he had made no demand upon the officers or directors of the Mississippi River Coaling Company to bring suit, for the reason that they were charged with a misfeasance set out in the bill, and that therefore such demand would have been useless. He also averred that his bill was brought in his own behalf and on behalf of any other stockholder who might desire to join.”
    “The said executors of the will of James W. Friend, George W. Thomas and C. Jutte & Company, have appeared. None of the other defendants named have appeared, and the record does not show that service was had upon any of them. The individual defendants who have appeared, have demurred to the whole bill..... therefore the averments of the bill, which are well pleaded, are to be taken as true.”
    “The important averments are these: The complainant is the owner of forty-eight per cent, of the capital stock of the Mississippi River Coaling Company, and C. Jutte & Co. is the owner of forty-one per cent, thereof, less four shares assigned to several persons to qualify them as directors. August 13, 1904, the complainant and C. Jutte & Co. entered into a written contract whereby they agreed that a corporation should be formed under the laws of Louisiana, with a capital stock of $100,000, for which the complainant and his associates were to subscribe, and the object of which was to build docks at the mouth of Lake Borgue Canal, in order to handle and store coal for the purpose of coaling steamers, supplying bunker coal and loading cargo or bunker coal for export; that complainant was to transfer to said corporation a lease of certain property for its purposes; that O. Jutte & Company was to loan the corporation $40,000 upon its notes to be secured by the stock, as soon as the complainant had obtained a contract for C. Jutte & Co. to supply the Elder-Dempster Steamship Company with coal and had produced reasonable assurance in writing that C. Jutte & Co. was to obtain like contracts from other lines; that the Dock Company was to handle no coal except that of C. Jutte & Co., and all contracts were to be made in the latter’s name, and that the compensation of the Dock Company was to be all in excess of $2.85 per net ton, but it was not required to handle coal at a compensation of less than thirty cents per ton. Pursuant to said contract, a corporation of the State of Louisiana was formed and was named Mississippi River Coaling Company, with a capital stock of $100,000, which was subscribed by complainant and his associates. It was organized with a board of five directors. Complainant turned over to said corporation the lease, as he was required to do, for which he received $99,600 of said stock. He transferred to C. Jutte & Co. $52,000 of said stock, obtained a contract with Elder-Dempster Steamship Co. and assurances from other companies, and in all respects fulfilled his obligations under the contract. C. Jutte & Co. loaned the sum of $40,000 to the Dock Company and received the notes therefor and the collateral; and the coal tipple and docks were erected. Said George W. Thomas became president of the said Dock Company, his son, Albert G. Thomas, secretary and treasurer, and J. W. Friend a director. Complainant was also a director. Said George W. Thomas and James W. Friend were also controlling officers and directors in, and the principal owners of, the stock of C. Jutte and Company.”
    “It was averred that the defendants, who controlled both corporations and had a large interest in C. Jutte & Co., fraudulently failed to enforce said contract in favor of the Dock Company and against C. Jutte & Co., and fraudulently violated the same for the benefit of C. Jutte & Co.; that instead of selling coal through the Dock Company, C. Jutte & Co. sold coal directly to said Steamship Companies and deprived the Dock Company of the large profits it would have made; that C. Jutte & Co. neglected to obtain other large and valuable contracts for the benefit of the Dock Company, and that said officers and directors permitted the coal tipple of the Dock Company to become out of repair and allow washes to occur under its foundations, which could have been prevented at smalZ expense. It was also averred that, on January 31, 1907, C. Jutte & Co. brought suit against said Dock Company in the United States Circuit Court for the Eastern District of Louisiana and service was had upon Albert G. Thomas, its secretary and treasurer, who was employed by and interested in C. Jutte & Co., said suit having been kept secret from the complainant; that on July 5, 1907, judgment was rendered in favor of C. Jutte & Co. and against said Mississippi River Coaling Company in the sum of $70,-489.95, with interest on $65,163.89 from January 1, 1907; and that the said claim was “wrongfully and fraudulently excessive,” and was “inflated and so made excessive as one of the means of depriving the Coaling Company of its property.” Execution was afterwards issued on said judgment and the property of the Dock Company was sold to officers and directors of C. Jutte & Co. for the sum of $18,000, it being of the value of at least $125,000. The complainant finally averred that his stock in the Dock Company, which was worth $50,000 had been rendered worthless by reason of said acts of the officers and directors and controlling stockholders therein.”
    “He prayed that the defendants be required to answer; that they be required to account for the sum ‘that may be due your orator’ from sales of coal which have been made and would have been made by the Dock Company and for the amount due ‘from the defendants to your orator,’ by reason of the violation of said contract: and that the ‘defendants be required to pay the plaintiff’ the amount found to be due. There was no prayer for any relief in favor of the Mississippi River Coaling Company.......”
    “The bill shows that, whilst tho original contract was between the complainant and C. Jutte & Co., one of the covenants was that a corporation was to be formed, and thereafter the dealings of C. Jutte & Co. were to be with that corporation; that such Corporation was formed; and that both the complainant and C. Jutte & Co. have performed their initial obligations to it, In fact, there is no averment in the bill that any covenant with C. Jutte & Co. made with the complainant personally has been broken. Nor is there any averment that any of the defendants violated any contract made with him directly or committed any breach of duty which they owed to him as an individual. On the contrary, the averments are, that C. Jutte & Co. subsequently broke the covenants it made with the Mississippi River Coaling Company — covenants found in the original contracts, it is true, but none the less made with the Dock Company —and that some of the defendants disregarded their duty to the Dock Company, not to the plaintiff, arising out of their fiduciary relations to it. It is charged that C. Jutte & Co., by some of the defendants, did not sell coal through the Dock Company; that it allowed the property of the Dock Company to depreciate; that it failed to secure other valuable contracts for the Dock Company.....Finally, complainant alleged that the defendant caused an excessiye judgment to be entered against the Dock Company and its property to be sold.
    ... .The bill avers that judgment was obtained in the United States Court, and upon that judgment the property of the Dock Company was sold.”
    The Court determined that the “judgment was rendered in a Court of competent jurisdiction. It was the duty of that Court to determine, and it necessarily did determine, that the Dock Company was lawfully served with process, and was lawfully in Court. Its judgment must be taken as a verity....;” and further, that the Mississippi River Coaling Company was an indispensable party to the bill and no decree could be entered in its absence; that the bill was in effect an attempt to have the Court interfere ia the internal affairs of that com-' pany, and, since its domicile was elsewhere and it had no property in thi? State, to grant the relief prayed for would involve an interference in the internal affairs of a foreign corporation; that as against the demurrants the plaintiff was seeking relief solely in the capacity of a stockholder in the Coaling Company for wrongs done to that corporation, and that he had not shown a right to so proceed.
    The demurrer was sustained and the bill dismissed at the cost of the complainant.

      Errors assigned were in sustaining demurrer upon the grounds indicated in the opinion of the Supreme Court, and dismissing the bill.

      Ernest Dale Owen, with him Wm. M. Galbraith and Oliver K. Eaton, for appellant.
    — The court had jurisdiction: Madden v. Electric Light Co., 181 Pa. 617; North State Copper & Gold Mining Co. v. Field, 64 Md. 151 (20 Atl. Repr. 1039); Babcock v. Farwell, 245 Ill. 14 (91 N. E. Repr. 683); McCloskey v. Snowden, 212 Pa. 249; Schmitz v. Metallic Condense Co., 11 Pa. D. R. 442; Neal v. Teel Mining Co., 51 Pittsburgh Legal Journal 233; Fisk v. R. R. Co., 53 Barbour 513; Watkins v. Land & Timber Co., 107 La. 107 (31 So. Repr. 683); Fougeray v. Cord, 50 N. J. Eq. 185 (24 Atl. Repr. 499); Hanley v. Balch, 94 Mich. 315 (53 N. W. Repr. 954); Brown v. De Young, 167 Ill. 549 .(47 N. E. Atl. Repr. 863); Eaton v. Robinson, 19 R. I. 146 (31 Atl. Repr. 1058; 32 Atl. Repr. 339); Vose v. Grant, 15 Mass. 505; Wineburgh v. U. S. Steam & St. Ry. Adv. Co., 173 Mass. 60 (53 N. E. Repr. 145); Richardson v. Clinton Wall Paper Trunk Mfg. Co., 181 Mass. 580 (164 N. E. Repr. 400); Miller v. Quincey, 179 N. Y. 294 (72 N. E. Repr. 116).

      Robert J. Dodds, with him William M. Robinson and Reed, Smith, Shaw & Beal, for appellees.
    — The gravamen of the bill of complaint, so far as respects this demurrant, concerns entirely the internal affairs of a foreign corporation, and therefore this court will take no jurisdiction of this cause: Madden v. Electric Light Co., 181 Pa. 617; McCloskey v. Snowden, 212 Pa. 249. The bill of complaint shows no right in plaintiff to maintain the action: McMullen v. Ritchie, 64 Fed. Repr. 253; Wolf v. R. R. Co., 195 Pa. 91.
    The presence of the Mississippi Biver Coaling Company is indispensable to the maintenance of this action and it not appearing that said corporation is within the jurisdiction of this court or subject to its process, this court will not entertain jurisdiction of this cause: Eldred v. Palace Car Co., 105 Fed. Repr. 455.
    The bill is multifarious as respects both the parties thereto, and the subject-matter thereof.
    January 2, 1912:
   Opinion

by Mr. Justice Moschzisker,

The material facts in this case fully appear in the opinion of the court below published in connection herewith. The plaintiff alleged that the defendants, as officers of the Mississippi Biver Coaling Company (referred to by the court below as the “Dock Company”) had refused to enforce certain contracts against another corporation known as C. Jutte & Co., in which they were interested as stockholders and officers; that they had neglected to secure other valuable contracts for the Coaling Company; that they had failed to keep the property of said company in repair and had permitted it to be sold for an inadequate price under a judgment secured by C. Jutte & Co. through fraudulent collusion with them. These facts, if established, would constitute breaches of the defendants’ duties to the Coaling Company, for which they would be directly liable to that corporation — not to its stockholders.

The plaintiff avers in his bill that “No demand has been made upon the officers and directors of the Mississippi Biver Coaling Company to bring or conduct this suit, for the reason that the same is brought against them, charging them with the misfeasance herein set out, and that such demand would therefore have been useless.” It appears, however, that of the seven officers and directors of the Coaling Company only three are named as defendants in this proceeding and the appellant expressly admits that he has no case against Albert G. Thomas, one of the three. He does not aver in detail specific acts done by any of the defendants showing fraudulent collusion, but contents himself with general allegations of fraud based upon the averment “That the principal and controlling officers and directors of said Coaling Company, especially G. W. Thomas and J. F. Friend, and not including your orator, were also the controlling officers and directors, and the principal owners of the stock of the said C. Jutte & Co., and had a larger and greater interest in said C. Jutte & Co. than they had in said Coaling Company.”

In Wolf v. Railroad Co., 195 Pa. 91, 95, the plaintiff charged collusion on the part of the directors of a corporation, and we said, “The averments of collusion relied on by the plaintiff are that as the lessee is the owner of a majority of the shares of the lessor, the former elects and controls the acts of the officers of the latter. * * * * The defect of this charge is that it does not rest on any facts averred, but on an inference that by reason of the circumstances of their election, the directors will violate their duty and commit a breach of trust. There is no presumption that officers will commit a breach of trust; the charge should rest on some act, affirmative or permissive, manifestly in violation of duty, and manifestly the result of fraud and not of erroneous judgment.” Fraud is largely a conclusion of law, and all our cases agree that general allegations which do not set forth the particular circumstances are not sufficient. Where it satisfactorily appears that a demand upon the officers of a corporation would be useless, such a course need not be pursued; but here the plaintiff has not made it plain from facts stated that a majority of the Board of Directors of the corporation in question had been, or probably would have been, faithless to their trust; hence he has not shown a right to maintain the suit in his individual capacity. We have held, “The right of an individual stockholder to act for the corporation is exceptional and only arises on a clear showing of special circumstances, among which inability or unwillingness of the corporation itself, demand upon the regular corporate management, and refusal to act are imperative requisites. A refusal by the corporate management must appear affirmatively to be a disregard of duty and not an error of judgment, a nonperformance of a manifest official obligation, amounting to a breach of trust. There must be averred and proved an actual application to the directors, and refusal by them to bring suit or to allow plaintiff to do so in the corporate name, and where misconduct of the directors themselves is alleged, the bill must show an effort to secure plaintiff’s rights through meetings of the corporation:" Wolf v. Railroad Company, 195 Pa. 91, 94; McCloskey v. Snowden, 212 Pa. 249. A shareholder has no distinct and individual title to the moneys and property of a corporation: Bidwell v. Railway Co., 114 Pa. 535, 541. In McMullen v. Ritchie, 64 Fed. Repr. 253, 262, Mr. Justice Lurton, then a U. S. Circuit Judge, stated, “The injury done by the defendants, if any, was done to the corporation. The wrong, if objectionable, was one to be remedied by an action by the corporation, or by a shareholder for the benefit of the corporation upon the refusal of the corporation to sue. A stockholder cannot maintain a suit for the indirect injury done to him as an indirect result of an injury to the corporation. This is too obvious to need elaboration.” These words are applicable to the present case.

While the Mississippi River Coaling Company was named as a defendant, it was never served and did not appear. The learned court below rightly decided that the presence of this corporation as a party to the record was indispensable to the maintenance of the action. The rights of the plaintiff depended upon those of the Coaling Company, and the latter was not before the court. Not only was its presence necessary to the plaintiff, but the defendants were entitled thereto so that the corporation might be concluded by any decree entered against them, and the company itself was entitled to notice in order that its interests and the rights of its creditors might be protected. (See quotations from standard text-books upon this point in Willoughby v. Chicago Junction Rys. & Stockyards Co., 25 Alt. Repr., 277, 280, 281, and Eldred v. American Palace-Car Co., 105 Fed. Repr. 457, 458). There is nothing upon the record to show that it was impossible to secure service upon the individual defendants in the domicile of the foreign corporation; they were officers of that company, and in the absence of any averment to the contrary it is but reasonable to assume that they could have been served in the State in which that corporation had its being and transacted its business.

It appears from the bill that the dealings between Jutte & Co. and the Coaling Company were adjudicated in an action at law brought by the former against the latter in the year 1907, in the United States Circuit Court for the Eastern District of Louisiana, and that a judgment for a considerable sum was secured against the Coaling Company. The plaintiff sought to have the court below inquire into and practically set aside that judgment as fraudulent, upon the general averment that the suit was “kept wholly secret from your orator;” that the service was upon the secretary and treasurer of the Coaling Company who was the son of one of the other defendants and in the employ of Jutte & Co.; that the claim adjudicated was “wrongfully and fraudulently excessive”; that Jutte &' Co. “had no proper legal cause of action against the said Mississippi River Coaling Company”; that the proceedings were “wrongful, fraudulent and oppressive, and the judgment in said suit was procured by deceit upon the court * * * and was part of the general wrongful and fraudulent scheme and design of the defendants * * * for the purpose of preventing your orator from getting the benefit to which he was entitled as a stockholder of the said * * * Coaling Company.” Had it been proper for the court below to review this judgment, it was not called upon to do so under these general averments. We are convinced that no error was committed in determining that, “it would be highly improper * * * under the averments of this bill, to undertake to ascertain whether or not the Dock Company was properly served with process and whether or not the judgment of that court was excessive in amount.”

In the eyes of the law as laid down in this State the gravamen of the bill, so far as respects the demurrents, concerns the management of the internal affairs of a foreign corporation. As to this, we have said, “A Pennsylvania resident has no right to call upon the courts of his own State to protect him from the consequences of a voluntary membership in a foreign corporation. By the very act of membership he entrusted his money to the management of a corporation owing its existence to and governed by the laws of another State * * * * Without doubt, Courts of Equity in Pennsylvania, have * * * jurisdiction to enjoin unlawful acts by such corporations ; * * * but they have no jurisdiction as to their internal management. What constitutes internal management is well defined by Stone, J., in North State Copper & Gold Mining Company v. Field, 64 Md. 151: ‘Where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as a stockholder, director, president or other officer, and is the act of the corporation, whether acting in stockholder’s meeting, or through its agents, the Board of Directors, then such action is the management of the internal affairs of the corporation; and in case of a foreign corporation our courts will not take jurisdiction:’ ” Madden v. Electric Light Co., 181 Pa. 617, 621-2. This was said in a case where the business and tangible property of the foreign corporation were within onr own State, and where stockholders charged the corporate management with conduct “which depreciated and rendered valueless their stock,” and it was repeated under like circumstances in McCloskey v. Snowden, supra. The present corporation has no property and does not conduct its business in this State.

We have examined Sloan v. Clarkson, 105 Md. 171; Miller v. Quincey, 179 N. Y. 294; Babcock v. Farwell, 245 Ill. 14, State, ex rel. North American Land & Timber Co., 106 La. 621, Beale on Foreign Corporations Secs. 309-312, 3 Clark & Marshall on Private Corporations, Sec. 865, and the other cases cited by the appellants, and while some of these do. not entirely agree with the Pennsylvania doctrine, it is to be noted that in each instance where other jurisdictions have taken a more liberal view than our own in reference to granting relief involving an inquiry into the management of the internal affairs of a foreign corporation, the business and property of the corporation affected were within the jurisdiction of the court. In view of the circumstances of the present case we do not feel that a departure from our own rule would be justifiable; but in a case free from the peculiar difficulties of this one, where the foreign corporation was served and all the parties or property directly involved was within the jurisdiction of the court, if the actual exercise of visitorial powers is not requisite to the relief, the rule as to non-interference should be restricted and not carried further than is absolutely required by universal fixed rules of law; for, where possible, we should prevent its use as a cloak to cover apparent fraudulent conduct on the part of officers of foreign corporations to the prejudice of Pennsylvania stockholders.

For the reasons already stated, the court could have done nought else than dismiss the plaintiff’s case; but in addition, the demurrer raised the point that the bill was multifarious, and this also was well taken; for in effect it seeks to maintain, first, an action by the plaintiff as a stockholder of the Coaling Company on behalf of that Company to recover against certain of its directors and one of its stockholders for losses growing out of an alleged fraudulent and collusive management of its affairs; next, an action of the same character against C. Jutte & Co. to recover profits made by that concern on coal sold which should have been disposed of through the Coaling Company; lastly, an action by the plaintiff individually against the directors of the Coaling Company and C. Jutte & Co. to recover for the depreciation in the value of his stock in the former company.

The assignments of error are overruled and the decree of the court below is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Chief Justice Fell,

license: Public Domain

text:
    Boyd, Appellant, v. Kirch.

      Judgment — Buie to open judgment — Note—Forgery—Evidence.

    1. An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court and on appeal the question is whether there has been a proper exercise of judicial discretion.
    2. Where on a rule to open a judgment, the genuineness of the note on which judgment was entered is in dispute, and the issue is that of forgery, the writing is not of weight. Its execution is the subject of inquiry, and there is no presumption arising from the writing itself to overcome it. The burden of establishing its genuineness is on the plaintiff in the judgment.
    3. On a rule to open a judgment, defendant testified that he had not signed the note on which the judgment was entered, and that he was not at the time of its date indebted to the plaintiff in any amount. He was corroborated by two witnesses who were familiar with his handwriting, and knew his signature. His testimony was contradicted by the plaintiff and by experts who expressed the opinion that the note was genuine. Held, on appeal that the order making absolute the rule to open the judgment could not be reversed.

      Argued Nov. 1, 1911.
    Appeal, No. 208, Oct. T., 1911, by plaintiff from order of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 195, making absolute rule to open judgment in case of L. R. Boyd v. John P. Kirch.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rule to open judgment. Before Shafer, J.
    . The opinion of the Supreme Court states the case.

      Error assigned was order making absolute rule to open judgment.

      John D. Meyer, with him R. W. Irwin, for appellant,
    cited Knarr v. Elgren, 19 W. N. C. 531; Jenkintown Nat. Bank’s App., 124 Pa. 337; Kaier Co. v. O’Brien, 202 Pa. 153; Wernet’s App., 91 Pa. 319; Cruzan v. Hutchison, 210 Pa. 88; Blauvelt v. Kemon, 196 Pa. 128; Augustine v. Wolf, 215 Pa. 558.
    W. S. Maxey and A. H. Mercer, for appellee, were not heard.
    January 2, 1912:
   Opinion by

Mr. Chief Justice Fell,

An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court and on appeal the question is whether there has been a proper exercise of judicial discretion. The cases are rare where there have been reversals of the findings of a judge sitting as a chancellor, because his opportunity to reach a correct conclusion from conflicting testimony, when the character and knowledge of the witness are involved is much better than ours on appeal. An apparent preponderance of testimony against a finding is not sufficient to lead to a reversal, when there is testimony, which if believed, will sustain it. Steinmeyer v. Siebert, 190 Pa. 471.

When on a rule to open a judgment, a want of consideration, or a contemporaneous parol agreement varying the terms of the note, or a like defense is set up, it should be established by a clear preponderance of proof. A mere conflict of testimony is not sufficient to entitle the defendant to a trial, but when the genuineness of the writing is in dispute, and the issue is that of forgery, the writing is not of weight. Its execution is the subject of inquiry, and there is no presumption arising from the writing itself to overcome. While the measure of proof required cannot be defined by rule, it may be said generally, that where a defendant has testified that a writing is a forgery, he is entitled to go to a jury, although the counter proof is of equal force. The burden of establishing the genuineness of a disputed paper is on the party offering it. Schomaker v. Dean, 201 Pa. 439; Kaier Co. v. O’Brien, 202 Pa. 153.

The defendant testified that he had not signed the note on which the judgment was entered, and that he was not at the time of its date indebted to the plaintiff in any amount. He was corroborated by two witnesses who were familiar with his handwriting, and knew his signature. His testimony was contradicted by the plaintiff and by experts who expressed the opinion that the note was genuine. Upon this testimony and in view of the unusual character of the transaction testified to by the plaintiff in explaining why the note was made, the judgment was opened.

The order is affirmed at the cost of the appellant.


text:
    Bliss, Appellant v. Pittsburgh Railways Co.

      Negligence — Street railways — Trespasser.
    In an action against a street railway company to recover damages for personal injuries sustained by tbe plaintiff while walking on a trestle oú defendant’s private right of way, a non-suit is properly entered, where it appears that the plaintiff could easily have gotten to a place of safety before he was struck by stepping on cross-beams at either side of the track, and that the motorman did all that he could do to stop the car when he found the plaintiff was making no attempt to avoid a collision by doing what he would naturally be supposed to do.
    Argued, Nov. 1, 1911.
    Appeal, No. 210, Oct. T., 1911, by plaintiff from order of C. P. No. 4, Allegheny Co., Second Term 1909, No. 379, refusing to take off non-suit in case of George W. Bliss v. Pittsburgh Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carnahan, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off non-suit.

      H. Fred Mercer, for appellant.
    — The fact that the plaintiff placed himself on the bridge does not relieve the defendant from liability for injuring him. The defendant was under a duty not to run him down and to stop its car before the car struck him: Kay v. Penna. R. R. Co., 65 Pa. 269; Walsh v. Rys. Co., 221 Pa. 463; Enright v. R. R. Co., 198 Pa. 166; Barre v. Reading City Pass. Ry. Co., 155 Pa. 170; Clemans v. Ry. Co., 128 Ta. 394 (104 N. W. Repr. 431); Remer v. R. R. Co., 36 Hun 253; Christian v. R. R. Co., 71 Miss. 237 (15 So. Repr. 71).

      In this case the right of the plaintiff to recover is based upon the gross negligence or wanton conduct of the defendant. When the gross negligence of the defendant is the proximate cause of the injury, contributory negligence is not available to the defendant as a defense: Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Marfilues v. Phila. & Reading Ry. Co., 227 Pa. 281; Pollack v. R. R. Co., 210 Pa. 631; Enright v. R. R. Co., 198 Pa. 166; Fenner v. Traction Co., 202 Pa. 365; Lackawanna & Bloomsburg R. R. Co. v. Chenewith, 52 Pa. 382.

      Craig Smith, with him Clarence Burleigh and William A. Challaner, for appellee.
    — The plaintiff was a wilful, conscious and deliberate trespasser upon this railroad and only entitled to protection against wantonness: Brague v. Ry. Co., 192 Pa. 242; Kaseman v. Sunbury Borough, 197 Pa. 162; R. R. v. Norton, 24 Pa. 465; Baltimore & Ohio R. R. v. Schwindling, 101 Pa. 258; Mulherrin v. Del. Lack. & West. R. R. Co., 81 Pa. 366; Morrissey v. Eastern R. R. Co., 126 Mass. 377; Bailey v. Lehigh Valley R. R. Co., 220 Pa. 516.
    January 2, 1912:
   Opinion by

Mr. Chief Justice Fell,

The plaintiff was struck by a car of the defendant on a trestle on its private right of way. He sought to recover damages on the ground that he was injured by the wanton act of the motorman in not stopping the car. A non-suit was entered for the reason, stated by the court, that the plaintiff could have easily got to a place of safety by stepping on cross beams at either side of the track and that the motorman did all he could to stop the car when he found the plaintiff was making no attempt to avoid a collision by doing what he would naturally be supposed to do.

There was no dispute at the trial in relation to the proposition so strenuously and elaborately argued in behalf of the appellant that there is a duty to a trespasser not to injure him intentionally or wantonly to expose him to danger. This was conceded, but it was denied that the facts proved, or any reasonable inference that could be drawn from them, would sustain a finding by the jury, that the motorman acted recklessly or wantonly or failed in any duty owing a person who was unlawfully on the track.

At some distance from the place of the accident, the tracks of the defendant’s electric railway are turned from a public road, in a rural district, onto its jn'ivate right of way, that is fenced on either side and extends through open fields. On this way there was a trestle about one thousand feet in length. The track was laid on cross ties that rested on girders that were supported by cross beams attached to heavy upright posts. The cross beams were eighteen or twenty feet apart and extended on either side a foot and a half or two feet beyond the ends of the ties. The plaintiff and a companion turned from the public road and walked on the ties between the rails for their own convenience. They were wilful and deliberate trespassers. When about half way across the trestle, they heard a car approaching some six hundred feet away, and signaled the motorman by raising their hands. He signalled them by waving his hand to get off at the sides, and afterwards slackened the speed of the car. One of the men moved to a place of safety on the end of a cross beam; the other, the plaintiff, apparently did not attempt to get off the track until the car was near him, and then stepped on the end of a tie, but not down on the cross beam. The car was stopped within thirty feet of the place of the accident. These facts did not indicate a wanton disregard of the plaintiff’s safety by the motorman. When he saw the men and knew that they saw him, they were six hundred feet in front of his car, and not more than ten feet from a cross tie on which they could step. He signalled them to get off the track, and slowed the speed to enable them to do so. He saw one step to a place of safety and he could reasonably assume that the other would do so. The most that could be said in criticism of his conduct is that he erred in assuming that the plaintiff would act with reasonable prudence.

The judgment is affirmed.


author: Per Curiam :

text:
    Hammill’s Estate.

      Sale — Real Estate — Trustee’s sale — Representation by auctionr eer — Setting aside sale — Costs.
    Where a purchaser at a trustee’s sale is induced to bid upon the belief that the representations of the auctioneer would be ratified by the trustee and they are not ratified the sale will be set aside; but if it also appears that the representations were made as to objectionable features which were visible, and the purchaser did not file objections to the return until three months after it was made, the costs which accrued on the sale and the proceedings to vacate it will be imposed upon him.
    Argued, Nov. 1, 1911.
    Appeals, Nos. 173 and 221, Oct. T., 1911, by W. J. O’Donnell, Trustee, and Margaret Hammill, from decree of O. C. Allegheny Co., April T., 1908, No. 6, dismissing exceptions to decree setting aside sale in Estate of Owen Hammill, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to decree setting aside sale.
    Miller, J., filed the following opinion:
    FINDINGS OF FACT.
    This matter comes on upon exceptions to a return of public sale in partition.
    From the pleadings and testimony, the following are the material facts:
    On the 12th of September, 1908, W. J. O’Donnell, Esq., was appointed trustee, to make public sale in partition, of certain real estate owned by tbe decedent. Tbe sale was duly advertised, and the return day extended for successive long periods of time. On February 19th, 1910, final return was made setting forth the various adjournments, and that for lack of sufficient bids the real estate was not sold.
    On April 16th, 1910, an alias order for sale was made, the terms being fixed at one-third in cash, of which ten per cent, should be paid at the time of the bid, and the remaining two-thirds in two equal annual payments, with interest at six per cent., secured by bond and mortgage, and return to this order was made on June 11th, 1910, showing that the first described piece, located in the present Second Ward, formerly Fourth Ward, of the City of Pittsburgh, was sold to Philip Fitzgibbon, for the sum of $15,000, which return was confirmed nisi.
    On August 13th, 1910, the purchaser was permitted to file exceptions to this return, to which answer was made: From these pleadings and testimony, it appears inter alia that upon subsequent examination of the title, the building upon the ground extends on the adjoining lot nine inches in front and ten and three-quarter inches in the rear; that since the original order of sale had been made, the property had been very much damaged by reason of excavations in adjoining alley, the erection of a party wall by one of the adjoining owners, with the consequent destruction of the wall of this building; that certain uprights and other erections had been put upon the premises, whereby they were damaged; that the auctioneer stated to the purchaser if he bid $15,000, the damages by reason of the excavations, and to the walls, would be assigned, or the trustee would restore the premises to the original condition, and that the title was good. The auctioneer was not authorized to make these representations, and the trustee refuses to ratify the same, being bound by the terms of sale as authorized; that some of the heirs are in possession, and have given notice that they will not vacate the premises; that the purchaser at one of the previous offerings at public sale, bid a higher price than $15,000, at which time the party-wall had not been built, nor had the excavation been made in the alley way; that the adjoining owner admits he has all the property called for by his deeds; that no claim has been made upon this estate by reason of the wall being apparently nine inches over the line; that the property in question is of the full width advertised, exclusive of the projection or extension of the wall on the adjoining property, this having been its location for more than forty years.
    CONCLUSIONS Off LAW.
    There can be no question as to the title; all the land purporting to be conveyed is undoubtedly covered by the deed to the ancestor in title. While it does appear that the wall of this old building extends beyond the lines of the lot, it is manifest that the adjoining owner has no claim thereto, because he admits he has all the ground purchased by him; nor does he assert any title to the portion questioned. It would seem upon the uncontradicted evidence as to the length of time this wall has been upon the ground, that adverse possession, for a period far exceeding the statutory limit, settled the question of title, as to the projection, and the estate has title thereto, in addition to the width called for in the deed.
    Equally clear it is, that the purchaser at this judicial sale is bound by the rule of caveat emptor, and that unless there are mitigating circumstances he has no ground for relief.
    But it is held in Vandever v. Baker, 13 Pa. 121, and Fahrig v. Schimpff, 199 Pa. 423, that if he be misled by declarations of the crier at the sale, he may apply to the Court to set the same aside; thus vesting in the Court having ordered the sale, a discretion which it should exercise on equitable principles. Apparently Fitzgibbon was induced to bid $15,000 upon the belief that the representations of the auctioneer would be ratified by the trustee. He saw the objectionable features as to the excavations, and the damage done to the wall; he knew this condition of affairs had taken place since he had made his former bid, and that it would require an expenditure of money to put it in shape for entrance and use. While the trustee is not bound by this unauthorized assurance on the part of the auctioneer, it would not be equitable to hold the purchaser, who depends thereon, to the strict letter of the purchase, according to the advertised terms.
    He, however, is not free from blame; he permitted three months to elapse between the time of the return of sale and his application to file exceptions; in the face of the terms of sale, he should have obtained additional assurances from the trustee. The probabilities are that some one else at this sale would have taken it freed from these particular declarations made by the auctioneer.
    Therefore, while the confirmation of the sale as to him will be vacated, it must be upon the payment of the costs that accrued on the present sale, and the proceedings.
    And now, to-wit, April 17th, 1911, this cause came on to be heard upon exceptions to the return of sale made in the above entitled case, and was argued by counsel, and thereupon, upon consideration thereof it is ordered, adjudged and decreed that the exceptions be sustained, and the sale is hereby vacated and set aside, and the trustee is ordered and directed to refund to Philip Fitzgibbon the amount of purchase money paid, viz., $1,500.
    And now, to-wit April 22, 1911, the above decree vacating sale is hereby amended so that the costs of the sale be paid by Philip Fitzgibbon, exceptant in above entitled case.

      Errors assigned were, in dismissing exceptions to decree setting aside sale.

      Thomas L. Kane, with him Marion H. Murphy, for appellants.
    — If the purchaser saw fit to rely on the assurance of the auctioneer without making inquiry of the trustee, he has no one to blame but himself: Singer’s Estate, 217 Pa. 295; Pepper v. Deakyne, 212 Pa. 181; Vandever v. Baker, 13 Pa. 121; Norris v. Crowe, 206 Pa. 438; Lancaster v. Flowers, 208 Pa. 199; Pennsylvania Stave Co.’s App., 225 Pa. 178.
    Purchasers at a judicial sale are bound by the rule of caveat emptor: Girard Life Ins. Annuity & Tr. Co. v. Bank, 57 Pa. 388; Smith v. Wildman, 178 Pa. 245; De Haven’s App., 106 Pa. 612.

      Marron & McGirr, for appellee, were not heard.—
    The sale was properly set aside: Haslage’s App., 37 Pa. 440; Bowers’ App., 84 Pa. 311; De Haven’s App., 106 Pa. 612; Miles v. Diven, 6 Watts 148; King v. Gunnison, 4 Pa. 171; Fox v. Mensch, 3 W. & S. 444; Demmy’s App., 43 Pa. 155.
    January 2, 1912:
   Per Curiam :

The decree is affirmed on the opinion of the learned judge of the Orphans’ Court.


author: Mr. Justice Stewart,

text:
    Standiford, Appellants v. Kloman.

      Contract — Written contract — Construction—Extension of option — Province of court and fury.

    1. It is a general rule that tbe court, and not tbe jury, are to judge of the meaning of a written instrument, except in certain cases, where the instrument is not to be understood without reference to facts dehors the writing, and then it may be proper that the jury, who are to inquire into the facts, should judge of the whole. But when that is not the case the courts are bound to give the construction; and if they refuse to do so and leave it to the jury it is error.
    2. Where the parties to a written option to purchase land execute, during the running of the option, a later written contract, which expressly states that its purpose is “to give to the parties of the second part an extension of thirty days to carry out the terms of the written contract,” previously made “and executed by the same parties,” a recital in the second contract “that the terms in the contract are to be complied with on or before” a day named, is not to be construed as converting the agreements between the parties from an option to a contract of purchase and sale; and such a construction is especially required where a letter sent by the seller to the purchaser with the new contract to he executed, calls attention only to some minor points of difference between the two agreements, and shows by its terms that it was the intention of the parties that the new agreement was to be only an extension of the old one.
    3. In such a case the construction of the contract is for the court, and it will not be carried to the jury by the parol evidence in the case, which was not introduced for the purpose of throwing any light on the understanding of the parties by determining some extrinsic fact on which the true construction of the contract depended, but rather to show what had been done by each party under the contract within the stipulated time.
    Argued Nov. 1, 1911.
    Appeal, No. 222, Oct. T., 1911, by plaintiffs from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 1048, on verdict for defendants in case of Harry Standiford, J. B. Harrell, Jacob Wissler, Walter A. Armstrong and William A. Engel v. A. C. Kloman, L. E. Huseman, F. R. Huseman, P. Brennen and J. H. Bokerman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for breach of contract. Before Carnahan, J.
    The contract in question was in writing, and its premises containing the names of the parties was as follows:
    “Memorandum of agreement made and entered into this 18th day of May, 1906, by and between H. Standiford, and associates of the City of Washington, District of Columbia, parties of the first part, and A. C. Kloman, and associates of the City of Allegheny, Pennsylvania, parties of the second part, all of whom having signed their names hereto are made parties to this contract.”
    The remaining material portions of the contract are quoted at length in the opinion of the Supreme Court.
    At the trial the court construed the contract of May 18, 1906, as an extension of the option previously given on February 26, 1906, and gave binding instructions for defendants.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1, 2) above instructions quot ing them.

      Frederick L. Siddons of Ralston, Siddons & Richardson, for appellants.
    The construction of the contract was for the jury under the evidence. Etting v. Bank of the United States, 24 U. S. 59; Swan v. Scott, 11 S. & R. 155; Edwards v. Goldsmith, 16 Pa. 43; Watson v. Blaine, 12 S. & R. 131; Foster v. Berg, 104 Pa. 324.

      Frederic W. Miller, with him W. A. Challener and F. H. Phillips, for appellees.
    — The contract was for the court. Foster v. Berg, 104 Pa. 324. Even where a contract is oral and there is no dispute as to the facts, its construction is for the court, there being no question for the jury: Edelman v. Yeakel, 27 Pa. 26; Elliott v. Wanamaker, 155 Pa. 67.
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

The action was for the recovery of damages for an alleged breach of contract. Plaintiffs were the holders of an option for the purchase of certain lands in Augusta County, Va., in all 8,975 acres. On 26th February, 1906, they entered into a written contract with the defendants wherein, after reciting that steps had been taken to incorporate a company to be known as the American Manganese Mining and Manufacturing Company, with capital stock of 10,000 shares of the par value of flOO each, to purchase and take over and develop the lands above mentioned and on which plaintiffs held an option, it is provided as follows: “That in consideration of the premises and of aiding in the formation of said company, the said parties of the first part 'hereby agree to procure and have executed a good and satisfactory deed of general warranty, conveying all the aforesaid tract with the rights of way and other rights from the estate of John Wissler, deceased, now owning same to said American Manganese Mining and Manufacturing Company, or to such other grantee as the parties of the second part shall direct, and to deliver said deed in escrow to some bank satisfactory to both the parties hereto, to be held and delivered by said bank on the fulfilment of the conditions hereinafter set out.”

“The said parties of the second part agree to proceed as rapidly as possible to incorporate and organize the said American Manganese Mining and Manufacturing Company and pay the expenses of such organization being completed, that he will cause to be allotted to said parties of the first part for himself and Ms associates 4,380 shares of the capital stock of the said company, fully paid and non assessable, and $95,000 of tbe bonds to be issued by said corporation, (or tbe net amount of cash realized from sale of the said $95,000 of bonds); and a further consideration of $55,000 in cash, that there is to be allotted to said parties of the second part the remaining 5,620 shares of the capital stock of said corporation fully paid and non assessable, and on the presentation of said certificate or certificates of said 4,380 shares of stock and said $95,000 of bonds of said corporation (or the net amount of cash realized from sale of $95,000 of bonds) and the payment of $55,000 in cash to said party of the first part and associates, they will cause to be delivered to said parties of the second part or associates, or their assigns by the bank aforesaid, the deed above directed to be held in escrow; that said party of the second part and associates will have inserted in the by-laws of said corporation the provision that the board of directors thereof shall number seven, and it is agreed that the said party of the second part shall for himself and his associates have the power and right to nominate and elect four of said seven of the board of directors, and that said party of the first part shall for himself and his associates have the power and right to nominate and elect the remaining three of said board of directors; that in all contingencies the control and management of said corporation shall remain and be in the said party of the second part and his associates; that in case the number of the board of directors be other than seven, said party of the second part and his associates shall have the power and right to nominate and elect a majority of the members of said board of directors, and said party of the first part shall have for himself and his associates the power and right to nominate and elect the minority of said board of directors.”

“This contract is made and executed by mutual consent of all parties hereto, for the purpose of giving the parties of the second part an extension of thirty (30) days time to carry out the terms of the contract dated February 26, 1906, and executed by the same parties, and it is understood and agreed that the signing of this contract terminates the contract dated February 26, 1906, and the same is null and void.”

“The terms of this contract are to be complied with on or before July 1, 1906.”

It is to be observed that the purpose of the contract as here defined was to give the parties of the second part (the defendants) an extension of time to carry out the terms of a contract dated February 26, 1906, between the same parties. While the latter agreement in express terms abrogates the earlier, it yet imports and incorporates the terms of the earlier in such a way that the whole contract can be understood only as both are considered. The points of difference between the two are these: (1) the earlier gave a right to acquire the lands up to 1st June, 1906; the latter one, up to 1st July, 1906, (2) by the earlier, plaintiffs were to receive $95,000 of the bonds to be issued by the corporation, while by the later this obligation could be discharged by paying the net amount received by the corporation on sale of the bonds; (3) the earlier concluded in this way, “This agreement to terminate and be null and void on and after June 1, 1906;” while the later provides that “The terms of this contract are to be complied with on or before July 1, 1906.” We are concerned here only with the difference last mentioned and the clause in the later agreement which defines the purpose of its execution. It is the contention of the plaintiffs that the provision in the later agreement that the terms were to be complied with on or before July 1st, created a binding obligation on the defendants to accept a conveyance of the land and pay therefor the stipulated price within the period named. The dispute is resolved into a question of construction. There was parol evidence in the case, but it was introduced not with a view, to establish extrinsic facts to aid in determining the meaning of the parties; furthermore, what evidence of this kind was introduced presents no conflict whatever. The construction of the contract was therefore for the court. The court gave binding instructions for the defendant. On behalf of appellants it is insisted, first, that the question was one for the jury, and, second, if otherwise, that the construction placed on the contract by the court was erroneous. The first contention is based on a manifestly mistaken view of the evidence. True there was parol evidence in the case, but this evidence, as we have said, was not introduced for the purpose of throwing any light on the understanding of the parties by determining some extrinsic fact on which the true construction of the contract depended, but rather to show what had been done by each party under the contract within the stipulated time. We are at a loss to know exactly why it was introduced, but, certain it is that it was of no avail to show a contemporaneous construction by the parties, and, what is still more important in this connection, it disclosed no conflict. Our attention is directed to the testimony of Mr. Kloman, one of the defendants. With respect to the testimony of this witness we have only to say that, except as it identifies a letter written by Mr. Standiford, who represented all the plaintiffs, addressed to Mr. Kloman, representing all the defendants, and accompanying the agreement which had then been executed by the plaintiffs and was submitted for execution by defendants, it was entitled to no consideration, even if admissible. Whether Mr. Kloman and the other defendants read over the agreement before they signed it, and if so, whether they observed that clause which did not occur in the earlier agreement and which gives rise to the present contention, were matters of no consequence whatever in the issue being tried. The testimony, except as we have indicated, had not the remotest bearing on the case, while outside this testimony and such.other as bore on the same subject, there was no parol evidence whatever. Therefore there was nothing for the jury to decide. “It is a general rule, that the court, and not the jury, are to judge of the meaning of a written instrument, except in certain cases, where the instrument is not to be understood without reference to facts dehors the writing, and then it may be proper that the jury, who are to inquire into the facts, should judge of the whole. But when that is not the case the court are bound to give the construction; and if they refuse to do so and leave it to the jury it is error; 12 S. & R. 136. An interesting case as defining the duties of the court in such cases, and very apposite here, is Johnston v. Gray, 16, S. & R. 361. The learned trial judge construed the contract to be simply an extension of the option given by the contract of 26th February preceding, which contract it is conceded created no liability. In this he was entirely right. The later contract expressly states its purpose as being “to give to the parties of the second part an extension of thirty days to carry out the terms of the contract dated 26th February, 1906, and executed by the same parties.” The terms to be carried out were not any new or different terms, but those contained in the earlier contract. If it be said that the terms referred to included only the price and times and’manner of payment, kind and extent of title to be conveyed, the answer is, that while .all these things were necessarily included, the fact remains, it being conceded that the earlier contract is but an option, that one of its terms was that it should impose no obligation on the defendants to take the land, and therefore no liability for damages for failure to take. What reason could there be, gathering the intent from the language used, for concluding that the optional feature was not one of the terms to be carried out or observed? From the purpose as expressed, viz., to grant an extension of the time in which defendants could avail themselves of the option granted by the earlier contract, we derive a clear implication that in this contract, as in that, the carrying out of the contract rested in the option of the defendants. But, it is urged that what followed in the later contract, viz., “that the terms in the contract are to he complied with on or before July 1, 1906,” is to be construed as an express agreement of purchase and sale. With respect to this it is to be observed first, that the language here used does not necessarily import any such understanding or agreement. Quite as natural a construction, considering the relation the contract bears to the earlier one and the purpose of the new contract as expressed, would be that except as defendant did comply with the provisions of the contract on or before July 1, the contract would be at an end. The difference in phraseology between the two contracts, of course, is matter for consideration; but in view of the circumstances, the situation of the parties, and especially the letter accompanying the agreement forwarded to defendants for their execution from Mr. Standiford, that it was the purpose of the parties to turn what had been but an option into an absolute sale seems so entirely improbable, that the reasonable conclusion must be that the difference in phraseology meant no change of purpose whatsoever. Were there nothing else in the case we would regard Mr. Standiford’s letter in itself conclusive on this point. The letter reads as follows:

“Dear Sir—
“As per statement outlined in my letter of yesterday, I herewith enclose the agreement, copied from the old agreement, with such changes only to cover the extensions and the present arrangement for giving us the cash instead of the bonds — we using the term ‘or cash, &c.’ and a clause abrogating the old contract. In doing this we are giving you all the time we have to make our final payment on the property, and to get any further extension it would entail additional expense upon us.”

Could there be a more explicit acknowledgment that the plaintiffs themselves when they submitted the contract to defendants for execution understood that it was simply an extension of the option of 26th February? Specific mention is here made of the only points of difference between the two agreements. A reasonable inference from the language thus used, indeed one supported by rule of law, would be, that if other differences than those mentioned appeared, except as clear mistake was shown, they would be ineffectual. But again; if, overlooking the significance of the word “only” as it occurs, it was intended by the later agreement to convert what by the earlier one was a mere option into an absolute sale, why was it that specific mention was made of minor changes, and not even remote reference made to the most radical change involving the parties in large responsibilities? When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it. This was said in Peoples Natural Gas Company v. Braddock Wire Co., 155 Pa. 22, and we repeat it here. Further comment is unnecessary. We agree that the construction the contract received at the hands of the learned trial judge correctly expresses the true intent and meaning of the parties. The assignments of error are accordingly overruled and the judgment is affirmed,


author: Mr. Justice Moschzisker,

text:
    Thompson, Appellant v. Hazelwood Savings & Trust Company.

      Banks and banhing — Deposit on notice — Deposit booh — Regulations as to withdrawal — Deposit as collateral for note.

    1. A printed regulation in a deposit book issued by a bank that the deposit could only be withdrawn upon four months’ notice, does not constitute a contract that under any and all circumstances the deposit would be paid back upon four months notice. Thus the bank may show that when the deposit was made and accepted there was a contemporaneous agreement that the depositor would leave the whole of the deposit remain in the bank until the note of a corporation of which he was president was paid in full. If in an action to recover such deposit after four months notice, the bank shows by the clear, precise and indubitable evidence of two witnesses that such a contemporaneous agreement was made at the time of the deposit, a verdict and judgment for the bank will be sustained.
    2. The agreement that the deposit should remain amounted to a pledge of the plaintiff’s money, and gave the bank a lien thereon until the note should be paid in full. There was sufficient consideration to support the depositor’s promise, and the oral agreement was not within the statute of frauds; nor was the agreement void because of uncertainty in its terms. The note was for a fixed period, and the agreement was that the deposit should remain until the note was paid in full.
    Argued, Nov. 1, 1911.
    Appeal, No. 226, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 14, on verdict for defendant in case of Frank T. Thompson v. Hazelwood Savings & Trust Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Assumpsit to recover the amount of a deposit. Before Swearingen, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Plaintiff presented the following points:
    1. The agreement that defendant alleges the plaintiff, Thompson, made on October 15th, 1907, when he made the f'10,000 deposit, viz., that he would leave it in the Trust Company in the savings department until the note of the Pennsylvania Bed Co. was paid, is an agreement to answer for the default of another, and under the law, is required to be evidenced by writing, and cannot be proved by good oath. There is no evidence in writing of this agreement. There is no legal proof of this agreement, and the verdict must, therefore, be for the plaintiff.
    “Answer. Refused. (3)
    “2. Under all the evidence the verdict must be for the plaintiff.
    “Answer. Refused.” (4)
    The court charged in part as follows:
    [“The contention is — and there is where the dispute is too — that the deposit was made upon terms different from those set forth in the bank book, which was delivered to the plaintiff, namely, the defendant’s contention is that he made that deposit upon the oral promise given at the time of the deposit was made, that the money should remain in the bank or Trust Company until that note was paid. And that is the question for you to determine in this case. Upon your determination of that question your verdict will be, whether in favor of the plaintiff or in favor of the defendant.”] (10)
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (3, 4, 10) above instructions quoting them.

      John P. Hunter, with him Walter Lyon, G. C. Lewis and R. H. Jackson, for appellant.
    — The parol proof was inadmissible. Martin v. Berens, 67 Pa. 459; Homewood People’s Bank v. Heckert, 207 Pa. 231; Krueger v. Nicola, 205 Pa. 38.

      There was no consideration moving to the plaintiff for the alleged contract set up by defendant. The deposit was not as collateral, and is void for lack of completeness.
    Such a contract is tantamount to the agreement that the deposit is to be left forever, and such agreement is, we submit, wholly void: Sherman v. Kitsmiller, 17 S. & R. 45; Eldred v. Hazlett, 38 Pa. 16; Purves’s Est., 196 Pa. 438.

      John C. Bane, with him S. Harvey Thompson, for appellee.
    — Defendant had a right to show the contemporaneous agreement: Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; Keller v. Cohen, 217 Pa. 522; Gandy v. Weckerly, 220 Pa. 285; Faux v. Fitler, 223 Pa. 568.
    A parol contract is sufficient to support a pledge of personal property: Malone’s Est., 13 Phila. 313; Bannon v. Bank, 14 Pa. Superior Ct. 566; Licey v. Licey, 7 Pa. 251.
    There was sufficient consideration to support the plaintiff’s promise: Muirhead v. Kirkpatrick, 21 Pa. 237; Downing v. Funk, 5 Rawle 69; Kean v. McKinsey, 2 Pa. 30; Hesser v. Steiner, 5 W. & S. 476.
    The plaintiff’s promise is wholly outside the provisions of the statute of frauds: Leonard v. Vredenburgh, 8 Johns (N. Y.) 29; Nugent v. Wolfe, 111 Pa. 471.
    The contract was sufficiently complete: Davis v. Funk, 39 Pa. 243; Sitgreaves v. Farmers & Mechanics Bank, 49 Pa. 359; Philadelphia Bank v. Aldridge, 5 Phila. 446; Smith v. Coale, 12 Phila. 177.
    January 2, 1912:
   Opinion by

Mr. Justice Moschzisker,

On October 15, 1907, the plaintiff deposited the sum of ten thousand dollars with the defendant company, and received the ordinary bank book containing its rules and regulations, one of which was: “Deposits made in this savings and trust company can only be withdrawn on notice being given to the treasurer as follows: If the sum proposed to be drawn be......any sum over $1,500, four months notice.” On February 12, 1908, the plaintiff gave the required notice of his intention to withdraw the deposit, but the defendant refused payment upon the ground that the plaintiff had agreed that the money should not be withdrawn until a certain note of a third party, discounted by the defendant company, and renewed at the instance of the plaintiff, had been taken up. Whereupon the plaintiff brought this suit in assumpsit.

At the trial the defense showed that the plaintiff was president, stockholder, and creditor of the Pennsylvania Bed Co.; that the defendant had discounted the latter’s note for $10,000; that it had become dissatisfied with the collateral and demanded payment; that on October 16, 1907, the plaintiff called at the defendant’s office and proposed that, if it would renew the note of the Bed Company, he would deposit with the defendant company $10,000 in cash; that this offer was declined, and the plaintiff was asked why if he had that much money, he did not pay the note himself; to which he replied, “They already owe me a good deal of money,” adding that the Bed Company would pay the defendant “when they would not pay him, because he was a stockholder and the president of the company;” the plaintiff then made this offer, “If you will renew the Pennsylvania Bed Company’s note for three months, I will make you out a check for the interest and I will deposit $10,000 in the savings account and agree to leave it here until the note is paid in full;” to which the defendant replied that it would accept the deposit and renew the note upon that understanding, “and no other way;” the deposit was accordingly made and the note renewed. The trial judge charged, “If the defendant has satisfied you by clear, precise and indubitable evidence, not by one witness only, but by two witnesses or more, that the plaintiff, when he made the deposit, agreed that it should remain in that bank until the note of the Pennsylvania Bed Company was paid, then you should find a verdict for the defendant. * * * If, on the other hand, you are satisfied the plaintiff did not make any such contract, or if the defendant has not satisfied you by the measure of proof which I have given you, then you should find a verdict in favor of the plaintiff.” The verdict was for the defendant.

The plaintiff has appealed and contends that where a pass book is issued showing a deposit and containing regulations as to withdrawals, it cannot be proved “by parol evidence that such deposit was not to be withdrawn in accordance with such rules,” nor can it be shown that the deposit “was not to be withdrawn until the note of a third person was paid;” that such proofs would not “constitute a defense to an action brought for such deposit after due notice of withdrawal;” that such a parol agreement would be “a violation of the Statute of Frauds;” and that it would not “constitute such deposit collateral for such note;” further, that the alleged parol agreement in this case had no sufficient consideration to support it, and was too indefinite and uncertain to be enforced. The appellant also questions the admissibility of certain evidence introduced by the defendant showing that the plaintiff was “a creditor of such third person,” that fact not being “averred in the affidavit of defense.”

The printed regulation above quoted and depended upon by the plaintiff, cannot be said to constitute a contract that under any and all circumstances the deposit would be paid back upon four months notice. The rule in question was for the benefit of the defendant company, so that money could not be withdrawn in less than the stipulated time; it would not prevent or defeat any special agreement to the effect that a given deposit should remain beyond that time; particularly is this so, in a case like the present, where the deposit was made and accepted upon a contemporaneous agreement not to withdraw it until' the note was paid. We say it was made and accepted upon these terms, for the testimony is that the plaintiff’s first offer was refused, and the deposit was only accepted upon his second offer, which was to allow the amount to remain until the note was paid in full; this undoubtedly was what induced the defendant to renew the note, and in that sense was part of the contract of deposit. The evidence upon this point was given by a number of witnesses whose testimony was in accord.

The agreement that the deposit should remain amounted to a pledge of the plaintiff’s money, and gave the defendant a lien thereon until the note should be paid in full. “The three elements necessary to constitute a contract one of pledge are: (1) The possession of the pledged property must pass from the pledgor to the pledgee * * * *; (2) The legal title to the pledged property must remain in the pledgor; (3) The pledgee must have a lien on the property for the payment of a debt or performance of an obligation due him by the pledgor or some other person”: 31 Cyc. 787. “The term — collateral security — means any security in addition to the original obligations”: 31 Cyc. 786. “The law is very liberal in regard to the consideration required to support a pledge. Accordingly it has been held that such consideration may consist * * * of * * * an extension of time for the payment of a debt * * * without any new consideration”: 31 Cyc. 795-6; Downing v. Funk, 5 Rawle 69; Kean v. McKinsey, 2 Pa. 30. “ A valuable consideration is one which is either a benefit to the party promising or some trouble to the party to whom the promise is made”: Muirhead v. Kirkpatrick, 21 Pa. 237, 242. It may consist of a “benefit to the promisor or harm to the promisee”: Arnold v. Stedman, 45 Pa. 186, 188. In this case the plaintiff induced the defendant to withdraw its demand for the immediate payment of the Bed Company’s loan, to extend the time three months, to forbear and waive its right to enter suit and secure a judgment during that time,' and to accept a renewal note; all of which involved trouble and operated to the prejudice of the defendant if not to the benefit of the plaintiff. The Bed Company was financially embarrassed; on January 30, 1908, at the instance of the plaintiff a receiver was appointed, and when its affairs were wound up the total balance for distribution among creditors was but $290.59. Under all the circumstances we feel that the deposit was in the nature of a pledge of collateral; that there was sufficient consideration to support the plaintiff’s promise and that it was not within the Statute of Frauds.

We cannot view the contract as void because of uncertainty in its terms. The renewal note was for a fixed period of three months, and the plaintiff definitely agreed that the deposit should remain with the defendant until the note was paid in full. The appellee contends that “there was no necessity that the contract contain terms stipulating the method of the foreclosure of the subject matter of the pledge. Equity has jurisdiction of causes of this character; and, upon a bill filed for that purpose, a proper decree will be entered, fully foreclosing the pledge, and adjudicating the rights of the parties.” We are not now called upon to decide whether this remedy is open; nor shall we discuss that point until it is properly before us and we have had the benefit of argument thereon. The established facts, fixed by the verdict, that the plaintiff contracted to leave his $10,000 with the defendant until the note of the Bed Company was paid, and that such note had not been paid, were sufficient to prevent a recovery in the present action; and in this connection that is all we determine.

The testimony introduced by the defendant to show that the plaintiff was a creditor of the Bed Company was objected to upon the ground that there “was no notice given of any such claim on the part of the defendant.” When the plaintiff took the stand as a witness in Ms own behalf, he testified in chief that he was such a creditor, stating, “I had $12,000 worth of the bonds, as security for a loan, and I had a note of the Pennsylvania Bed Company;” and it was in evidence that when he asked for the renewal of the note he told the defendant that the Bed Company owed him “a good deal of money.” We do not see that the admission of the testimony objected to could have done any material harm; hence it is unnecessary to discuss the assignment going to that point.

The specifications are all overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Wallace’s Estate.

      Wills — Construction—Legacies-^-Payment of legacies — Charge on land.

    Testator gave “all household goods, furniture, etc., all my personal jewelry, all monies, all stocks now held in my name, all real estate” to my wife. He then expressed a desire that certain money legacies should be paid “out of the estate.” He concluded his will as follows: “balance of my estate and share in business to be given to my wife.” Held, that the real estate devised to the wife was not charged with the money legacies.
    Argued, Nov. 1, 1911.
    Appeals, Nos. 227 and 228, Oct. T., 1911, by John J. Wallace et al. from decree of O. C. Allegheny Co., April T., 1910, No. 202, dismissing petition to charge legacies on land, in estate of John J. Wallace, deceased.
    Before Fell. C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Miller, J., filed the following opinion:
    This is a proceeding on petition and answer to determine the status of certain legacies, and the liability of testator’s land, to be charged therewith.
    John J. Wallace, testator, died July 21st, 1907, leaving to survive him a widow, but no children, nor father or mother; his nearest blood relations are a brother and the latter’s five children, also the children of a deceased sister; this sister died after the decedent, testate, appointing decedent’s brother as guardian and trustee for her children.
    Testator’s will is as follows:
    “Pittsburgh, Pa., November 13, 1906.
    “I, John J. Wallace, of 507 Winfield St., City of Pittsburgh, County of Allegheny, State of Pennsylvania, do hereby declare this as my last will and testament. Being in sound and perfect health and desirous of arranging my worldly affairs, I hereby will and bequeath as follows: all household goods, furniture, etc., all my personal jewelry, all monies, all stocks now held in my name, all real estate that I own, or have interest in at the time of my departure from this life, to my dear wife Maggie J. Trussell Wallace, who always has been a kind and loving wife and faithful companion, and I know that she will carry out my wishes as talked over between us. I desire that my sister Mrs. Agnes W. Green, shall have ($10,000) ten thousand dollars out of my estate, to my nephews Orlando Green and Wallace Green, her sons ($1,000) one thousand each and Mrs. Maggie Wallace, my wife, is to be their guardian. To James H. Wallace children (my brother’s children) Bheams ($5,000) five thousand dollars, Margaret, Elizabeth, Ruth and James H., Jnr. ($1,000) one thousand each, to be given to their father and mother for them. Balance of my estate and share in business to be given to my wife Maggie.
    Signed: John J. Wallace.
    Witnesses:
    S. C. Moran,
    T. O’Carroll."
    The executrix’s account of the personal estate of testator at No. 104 March Term, 1910, including the decedent’s interest in the partnership business with his brother, under his father’s will, shows no distribution to the petitioning legatees; there is no personal estate from which these legacies can be paid. The only estate remaining is testator’s undivided one-half interest in a lot, and business building thereon, situated on Liberty Avenue, this City, which interest is valued at $75,000.
    The bequests to the widow of household goods, furniture, jewelry, monies, stocks and real estate, are specific and absolute. Having thus given her all his real estate, he expresses a desire that the general legacies shall be paid out of Ms estate, not out of what he had previously given her. This remaining estate not devised was his interest in the partnership; it is what he had reference to in the language “balance of my estate and share in business;” after the legacies were paid therefrom what was left should in addition go to his widow; this does not change the absolute devise to her of the estate previously given; these legacies were to be paid, if binding, out of the balance of his estate not otherwise given.
    The devise of the real estate to the widow vested in her as a purchaser; her legacy is preferred over general legacies; University of Pennsylvania’s Appeal, 97 Pa. 187; she is the first taker, the principal object of his bounty; Watson v. Smith, 210 Pa. 190; taking under the will in lieu of her statutory rights, she stands on an equity superior even to that of a child; Finney’s Appeal, 113 Pa. 11; the devise to her does not abate with other general legacies; Reed v. Reed, 9 Watts, 263.
    Even, if there were doubt as to the standing of these general legacies, and conceding that payment thereof could be enforced out of personalty, they are not charges against the real estate devised to the widow. Primarily, general legacies are payable out of the personalty; only express language, or necessary implication, charges them upon the land; Shenk v. Shenk, 150 Pa. 521; a mere direction that a devisee shall pay a legacy does not create a charge on the land; Cable’s Appeal, 91 Pa. 327; deficiency of personal assets does not create an interference of the intention to charge the real estate with payment; Heathcote’s Estate, 209 Pa. 522; there is no direction to sell; no necessity to sell for the purpose of carrying out the binding provision of the will; nor such a blending of personalty and real estate as to indicate an intention to charge the real estate; Duvall’s Estate, 146 Pa. 176. The petition must be dismissed.

      Error assigned was decree dismissing the petition.

      Smith H. Shannon, for appellants.
    — In construing a will to determine whether or not a legacy is a charge on land, the court may and should consider the circumstances of the testator, his family, the character and value of his property, and the source from which it was obtained: Postlethwaite’s Appeal, 68 Pa. 477; Earp’s Will, 1 Parsons, 453; Marshall’s Appeal, 2 Pa. 388; Stambaugh’s Estate, 135 Pa. 585.
    A legacy may be charged on land by implication. No form of Avords is necessary to produce the effect and when the intent is manifest courts are bound to carry it into effect: Ripple v. Ripple, 1 Rawle 386; Okeson’s Appeal, 59 Pa. 99; Dickerman v. Eddinger, 168 Pa. 240; English v. Harvey, 2 Rawle, 305; Nicholas v. Postlethwaite, 2 Dallas, 131.

      John M. Freeman, with him D. T. Watson and Ernest C. Irwin, for appellee.
    — The real estate is a specific devise and as such it is not subject to the payment of, and does not pro-rate with, the general legacies of the appellants: University of Pennsylvania’s App., 97 Pa. 187; Harper’s App., 111 Pa. 243; Ruddy’s Est., 37 Pa. Super. Ct. 533.
    The appellee being the widow of the decedent takes the devise of the real estate in lieu of her rights under the intestate laws, and is therefore a purchaser for a valuable consideration and her legacy is preferred over general legacies: Reed v. Reed, 9 Watts 263; McGlaughlin v. McGlaughlin, 24 Pa. 20; Finney’s App., 113 Pa. 11; Harper’s Appeal, 111 Pa. 243; Risk’s Appeal, 110 Pa. 176; Hummel’s Estate, 161 Pa. 215; Ruddy’s Estate, 37 Pa. Super. Ct. 533.
    January 2, 1912:
   Per Curiam,

The decree is affirmed on the opinion of Judge Miller.


author: Mr. Justice Hotter,

text:
    Parks, Appellant v. Lewis Foundry & Machine Co.

      Negligence — Master and servant — Travelling crane — Contributory negligence.

    Where an employee in a foundry who is familiar with the premises and the operation of the machinery therein, goes upon the runway of a travelling crane, which at the time is stationary, without giving the usual and proper warning to the crane-man, and the crane starts and injures him before he can reach a place of safety, he is guilty of contributory negligence and cannot recover damages from his employer.
    Argued Nov. 2, 1911.
    Appeals, Nos. 205 and 206, Oct. T., 1911, by plaintiff from order of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 787, refusing to take off nonsuit in case of Thomas J. Parks, Administrator of Charles J. Parks, deceased, and Thomas J. Parks v. Lewis Foundry and Machine Co.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    It appeared that the suit was originally brought by Charles J. Parks by his father and next friend, Thomas J. Parks against the defendant. Charles J. Parks died during the progress of the suit.
    The facts of the case are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off non-suit.

      L. K. Porter, with him S. G. Porter and F. H. Phillips, for appellant.

      W. S. Dalzell, for appellee.
    January 2, 1912:
   Opinion by

Mr. Justice Hotter,

This action was brought to recover damages for personal injuries suffered by Charles J. Parks, while engaged as a crane operator in the employ of the defendant company. Upon the trial, at the close of plaintiff’s testimony, a judgment of compulsory non-suit was entered, and from the refusal of the court below to take off this judgment, this appeal has been taken. The injured boy was engaged in operating an electric crane, which traveled upon runways some two hundred feet long, at a height of about sixty feet from the ground. Two cranes were in use upon the same runway. Access from the ground to the runway was had by means of ladders placed at the central point. At the time of the accident it was discovered that a device known as the controller, used in operating the crane was out of order, and Charles J. Parks, after leaving his crane at the proper place at the end of the runway, took the controller to the shop for some attention. In doing this he passed along the track upon which the crane ran, up to the central point and descended the ladder. While returning to his post, as he came up the ladder he saw the other crane at rest some fifty feet along the runway from the ladder towards the opposite end of the building. It appears from the evidence that he knew that the operator of the other crane could not, from his cage, see anyone walking along the runway. He also knew that the noise of the machinery was so great that the only effective means of communicating with the craneman was by signal. He might have given the necessary signal while upon the ground, before ascending the ladder; but he did not do so. Without having given any warning to the other craneman, lie climbed upon the runway, and started to walk along the rail towards Ms own crane. Having gone but a short distance, he discovered that the other crane, which had been stationary, was in motion, and was approaching him. He then turned back and attempted to regain the ladder. Before he was able to do so, he was struck by the oncoming crane, and injured.

It was contended that the defendant company was negligent in not providing ladders at the ends of the runways, for the use of employees, rather than at the central point. The location of the ladder was not, however, the proximate cause of the injury in this case. That unfortunate result was brought about by the young man’s failure to take the obvious precaution of warning the other crane operator before entering upon the trackway. He was thoroughly familiar with the premises, and with the operation of the cranes, and his testimony shoAVS that he fully appreciated the danger of being run down by the active crane while he was on the track. His failure to give notice of the perilous position in which he was about to place himself can only be regarded as contributory negligence. This was the conclusion reached by the trial judge, and from it we can see no escape.

The judgment is therefore affirmed.