text:
    Danisch, Appellant, v. Amer.

      Negligence — Master and servant — Machinery—Risk of employment — Non-suit,

    When an employee undertakes the performance of dangerous duties, he assumes such risks as are incident to their discharge from causes open and obvious with which he is familiar, or has the opportunity to become acquainted.
    In an action by a boy eighteen years old to recover damages for personal injuries sustained while working at a machine in a morocco factory, it appeared that the plaintiff had been working on similar machines to the one on which he was injured, for two months, and was reasonably familiar with the duties and dangers of his employment. It appeared that the hood covering fleshing knives on the machine in question was broken. Plaintiff observed the broken hood, and informed the foreman that he could see the knives. He did not, however, object to working on the. machine on this account, nor did he complain or raise any question about its • being dangerous or unsafe. Just how the plaintiff’s hand was caught by the knives was not clearly shown by the evidence. Held, that under the evidence plaintiff assumed the risk of his employment, and that a nonsuit was properly entered.
    Argued Jan. 5, 1906.
    Appeal, No. 188, Jan. T., 1905, by plaintiff, from order of C. P., No. 5, Phila. Co., June T., 1908, No. 1931, refusing to talce off nonsuit in case of Henry Danisch by his next friend, Henry Rajsik, v. William Amer and Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Greorge Demming, for appellant.
    The case was the jury: Whitaker v. Campbell, 187 Pa. 113; Com. v. Farrell, 187 Pa. 408; Fritz v. Jenner, 166 Pa. 292; Williams v. Clark, 204 Pa. 416; Winters v. Boll, 204 Pa. 41; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Bartholomew v. Kemmerer, 211 Pa. 277.

      Greorge L. Crawford, of Crawford & Loughlin, for appellees.
    The nonsuit was properly entered: Baldwin v. Urner, 206 Pa. 459; Betz v. Winter, 195 Pa. 346; Auberle v. City of McKeesport, 179 Pa. 321; Com. v. Farrell, 187 Pa. 408; Custer v. R. R. Co., 206 Pa. 529; Scanlon v. Phila. Rapid Transit Co., 208 Pa. 195; Patton v. Texas & P. Ry. Co., 179 U. S. 658 (21 Sup. Ct. Repr. 275); Gates v. Penna. R. R. Co., 154 Pa. 566.
    February 26, 1906:
   Opinion by

Mr. Justice Elkin,

The negligence alleged against the defendant is that the plaintiff was put to work in an unsafe and dangerous place without giving him proper instructions, and in maintaining deficient, unsafe and improper machinery lacking ample safety devices. The evidence fails to disclose any negligence making the defendant liable in damages because of his being put to work in a dangerous and unsafe place without giving him proper instructions. This branch of the case needs no further consideration.

The evidence did show that the hood which covered the fleshing roller was broken so as to expose the knives to the plain view of the appellant. This is the only negligence, if such it was, shown by the testimony. Is it sufficient to sustain this action ? The plaintiff, a young man about eighteen years of age, had been employed in and about morocco factories for a period of two years prior to the date of accident. He had been working on slating and fleshing machines similar to the one on which he was injured two months prior thereto. He was reasonably familiar with the duties pertaining to his employment. The dangers of the machines on which he had previously worked, as well as the dangers of the one on which he was working at the time of his injury, were known to him. It is true the machines on which he had previously worked had a hood over the fleshing knives, while on the machine on which he was working the day of the accident the hood was broken. Under the circumstances, this is not sufficient evidence of negligence to make the defendant liable in damages.

Before going to work the plaintiff observed the broken hood and informed the foreman he could see the knives. He did not object to working on the machine on this account, nor did he complain or raise any question about its being dangerous or unsafe. The danger, if any, was open and obvious, and could be seen by the plaintiff as well as by the foreman or his employer. The danger was as apparent to the plaintiff as anyone else, and he took the risk: Betz v. Winter, 195 Pa. 346; Baldwin v. Urner, 206 Pa. 459. It was not a latent and unseen danger about which he would not know without instructions. The danger was seen by the plaintiff and could have been avoided by the exercise of reasonable care. This case comes within the rule of Kaufhold v. Arnold, 163 Pa. 269, in that an employer is not responsible for those dangers to which the employee voluntarily subjects himself. We have frequently held that an employee who voluntarily undertakes a dangerous employment with which he is familiar assumes the risks naturally incident thereto: Green & Coates Street Pass. Railway Company v. Bresmer, 97 Pa. 103; Diehl v. Lehigh Iron Company, 140 Pa. 487. When an employee undertakes the performance of dangerous duties he assumes such risks as are incident to their discharge from causes open and obvious with which he is familiar or'has the opportunity to become acquainted: Sykes v. Packer, 99 Pa. 465.

In the case at bar the evidence does not clearly show how the-accident occurred. The plaintiff stood at the back of the machine which consisted of. three rollers, two of which caught the skins and rolled them toward him, whéreupon it was his duty to catch them as they came from the rollers, and lay them on a pile near by. Above and slightly in front of the two rollers behind which plaintiff stood, was a third roller, which contained the fleshing knives. The skins passed the roller with the fleshing knives and were then caught by the other two rollers and rolled toward the plaintiff. As' he stood behind the two rollers the evidence shows he caught the skin with his left hand, while his right hand for some reason and in some manner not satisfactorily explained passed over the top of the grip roller and was caught by the roller containing .the fleshing knives. The- evidence does not show how nor why his right hand got in that dangerous place. If he had used his right hand with his left in pulling the sldns from the two rollers at which he was working, the accident could not have occurred. In such event, the rollers instead of pulling his hand in would have pushed it out, because those rollers were revolving toward him. He had no duty to perform which required him to place his hand near the upper roller containing the fleshing knives: It is apparent that the plaintiff had' only to exercise reasonable and ordinary care in keeping away from tire fleshing knives to avoid'the dangér. The testimony does not clearly show for what purpose the hood was placed over this part of the machine. At the argument it was suggested that it was a protection to the person who worked back of the machine so that the flesh and water thrown from the skins would not fly in the face of the- operator. It was- also suggested that there is a space of a few inches between an unbroken hood and the knives in’all such-machines. Hence it was argued that the aceideiit would have occurred even if the hood had been unbroken, because the fingers and hand resting on the top of the grip roller would have passed under the unbroken hood and be caught by.the fleshing knives just the same. If this be true, it would follow that the negligence complained o£ was not the direct or proximate cause of the .accident. Be this as it may, it is not necessary to accept this view of the situation in order to determine the rights of the parties to this issue. The danger from the fleshing knives was obvious, apparent and known to the plaintiff, who was familiar with the duties of his employment, and he therefore assumed the risks and cannot recover for the injuries sustained.

The evidence having failed to disclose any negligence on the part of the defendant making it liable in damages, it is unnecessary to consider the assignments of error relating to expert testimony. The learned court below properly directed a nonsuit to be entered.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Morgan, Appellant, v. United Gas Improvement Company.

      Negligence — Gas company — Escape of gas — Evidence—Nonsuit.
    In an action against a gas company to recover damages for personal injuries alleged to have been sustained from inhaling gas which had escaped from defendants’ pipes into the plaintiff’s cellar, it appeared that plaintiff’s house was in a row of small houses, only one of which, the fourth from the plaintiff’s, was connected with defendants’ gas pipe. It appeared that two weeks prior to the accident, an odor of gas was observed in the house which was connected with the main. 'The defendant was notified of this, and its inspector examined the gas fixtures, and discovered no defects in them. The service pipes leading from the street to this house were under the control of its owner. A few hours before the accident the employees of defendant were digging in the street in front of plaintiff’s house, and while doing so, threw out with their shovels two pieces of broken gas pipe that were “rotted on one side.” It was not shown that these pieces were parts of defendants’ pipe, n'or that in size and appearance they bore any resemblance to it. No odor of gas had been observed by anyone on the street. Held, that a nonsuit was properly entered.
    Corporations manufacturing and distributing gas are held to a high degree of care in the maintenance of their pipes and are required to exercise every reasonable precaution suggested by known dangers. Where the existence of a leak is known, means should be taken at once to avoid injury, and where it should have been known that a leak was likely to occur because of the defective condition of the pipe, negligence may be imputed; but it is not reasonable to require companies to uncover their pipes without reference to the existence or nonexistence of leaks.
    Argued Jan. 8, 1906.
    Appeal, No. 90, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1902, No. 633, refusing to take off nonsuit in case of Mary Morgan v. United Gas Improvement Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Webster Dougherty, with him John C. Chrady, for appellant.
    The case was for the jury: Kibele v. Philadelphia, 105 Pa. 41; Koelsch v. Philadelphia Company, 152 Pa. 355; Heh v. Consolidated Gas Co., 201 Pa. 443; Hartman v. Citizens Nat. Gas Co., 210 Pa. 19.

      R. Stuart Smith, with him Charles E. Morgan, for appellee,
    cited: Railway Co. v. Henrice, 92 Pa. 431; Strawbridge v. Philadelphia, 2 Pennypacker, 419; Kepner v. Harrisburg Traction Co., 183 Pa. 24; Fox v. Philadelphia, 208 Pa. 127; Alexander v. Nanticoke Light Co., 209 Pa. 571; Aument v. Penna. Telephone Co., 28 Pa. Superior Ct. 610.
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

The plaintiff was injured by inhaling gas that escaped from the defendant’s pipe and found its way through the soil to the cellar of the house she occupied. This house, No. 2421 Pine street, was in a row of small houses only one of which, No. 2413, was connected with the gas pipe. The negligence alleged was that the defendant allowed the gas to escape from its pipe in the street, and failed to make necessary repairs after notice that gas was escaping. There was no direct proof of a defect in the pipe nor any proof of notice that gas was escaping from it. The only proofs at the trial were that employees of the defendant, who were digging in the street in front of the plaintiff’s house a few hours after the accident, threw out with their shovels two pieces of broken gas pipe that were “ rotted on one side; ” that two weeks before the accident an odor of gas was observed in the house No. 2418, of which the defendant was notified, and that its inspector who was sent to the house examined the gas fixtures and discovered no defects in them.

Corporations manufacturing and distributing gas are held to a high degree of care in the maintenance of their pipes and are required to exercise every reasonable precaution suggested by known dangers. Where the existence of a leak is known, means should be taken at once to avoid injury, and where it should have been known that a leak was likely to occur because of the defective condition of the pipe, negligence may be imputed ; but it is not reasonable to require companies to uncover their pipes without reference to the existence or nonexistence of leaks : Koelsch v. Philadelphia Co., 152 Pa. 355. Such companies cannot be held liable without proof of negligence.

There was in this case no sufficient proof that the pipe in the street was defective. No one who saw it was called to testify as to its condition. It was not shown that the pieces of broken pipe thrown out by the workmen who were digging a trench in the street were parts of the defendant’s pipe, nor that in size and appearance they bore any resemblance to it.

On the question of notice the testimony was not more satisfactory. No odor of gas had been observed by anyone on the street/ The defendant had been informed two weeks before that there was an odor of gas in No. 2413 and at once caused an inspection to be made. No further complaints were made by the occupants of that house and there was no indication of an escape of gas in the street. The service pipes leading from the street to the house were under the control of the owner of the house. The presence of gas in the house No. 2413 two weeks before was not an indication that anything was wrong with the pipe in the street, which was the only pipe for the condition of which the defendant was responsible. This fact alone did not impose on the defendant the duty to dig up the street to ascertain whether the line of pipe was in good condition.

The judgment is affirmed.


text:
    Prethrow v. West Jersey & Seashore Railroad Company, Appellant.

      Railroads — Passengers—Tickets—Connecting carriers — Presumption—Negligence.

    Where a railroad company sells a single ticket for a whole journey which is to be made partly by railroad and partly by ferry, and there is nothing on the face of the ticket to indicate that any part of transportation is to be by means of another carrier, the ticket imports prima facie that the railroad company owns the ferry, and a passenger suing the i'ailroad company for an injury occurring on the ferry is not bound to produce evidence that the railroad company owned or operated the ferry.

      Negligence — Ferries—Passenger—Question for jury.

    In an action by a passenger against the owner of a ferryboat to recover damages for personal injuries sustained in a violent collision between the boat and a bulkhead, the case is for the jury where it appears that the ferryboat had been turned out of its course by a tugboat, but after the emergency had passed, and while the boat was trying to get back to its course, the collision with the bulkhead occurred.
    Argued Jan. 8, 1906.
    Appeal, No. 198, Jan. T., 1905, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 4,329, on verdict for plaintiff in case of Margaret Prethrow v. West Jersey and Seashore Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McMichael, J.
    The facts are stated in the opinion of the Supreme Court.
    Defendant presented the following points :
    1. That the ticket purchased by plaintiff did not render defendant liable for the negligence of a connecting carrier, and as the evidence fails to prove that defendant operated the ferry upon which the accident happened, thé verdict should be for the defendant. Answer: Refused. [2]
    2. That according to the evidence of the plaintiff, a tugboat passed rapidly in front of the bow of the ferryboat just as it was about to enter the slip, and in order to avert a collision, the latter was obliged to turn its bow slightly, thereby resulting in a jar with the piling; but as such facts, in the absence of any testimony as to the custom, laws or regulations of navigation in or upon the Delaware river fail to affirmatively establish negligence on the part of the ferryboat, the verdict should be for the defendant. Answer: Refused. [3]
    Verdict for plaintiff for $12,000 upon which judgment was entered for $8,000, all above that amount having been remitted.

      Errors assigned were (2, 3) above instructions, quoting them.

      Edwin J. Sellers, of Sellers & Rhoads, for appellant,
    cited: Penna. R. R. Co. v. Jones, 155 U. S. 333 (15 Sup. Ct. Repr. 136).

      Thomas James Meagher, for appellee,
    cited: Clyde v. Hubbard, 88 Pa. 358; Philadelphia & R. R. Co. v. Ramsey, 89 Pa. 474; Keller v. Baltimore & Ohio R. R. Co.,174 Pa. 62; Great Western Ry. Co. v. Blake, 7 Hurlstone & Norman, 987.
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

The plaintiff purchased at the station of the defendant company in Gloucester, New Jersey, a ticket on which the following words were printed: “West Jersey and Seashore Railroad Company. Good for one passage from Gloucester to Philadelphia, Market street wharf.” The method of transportation was by railroad from Gloucester to the defendant’s station in Camden, thence by ferry across the Delaware river to Market street wharf, Philadelphia. The ticket was taken up by the conductor on the train. When the ferryboat reached the Philadelphia side of the river, it ran into a bulkhead and the plaintiff was injured.

The defendant offered no evidence at the trial but relied on two grounds of defense: (1) that the ticket sold by the defendant imposed no liability for the negligence of a connecting carrier, and there could be no recovery without evidence that the defendant operated the ferryboat; (2) that there was no affirmative evidence of negligence in operating the boat.

The ticket purchased by the plaintiff was a single ticket for the whole journey and there was nothing on its face to indicate-that any part of the transportation was to be by means of another carrier. It imported prima facie that the defendant owned or operated all the means of transportation between the points named on the ticket, and no question of the liability of a connecting carrier arose in the case. The plaintiff was a passenger injured through the means of transportation, and she might have rested her case on the proof of these facts, and relied on the presumption of negligence arising from them. She however produced testimony to show actual negligence and it is urged that this testimony rebutted the presumption and exonerated the defendant from 'blame. The substance of this testimony was that in order to avoid running into a tugboat which passed in front of the ferryboat, the latter was turned from its course down stream and brought nearly to a stop; that after this the pilot seemed to have lost control of the boat and in the effort to get back to the dock after the tugboat had passed he ran the ferryboat with great force into the bulkhead. Which boat had the right of way did not appear, but if we assume that the pilot of the ferryboat was not negligent in not sooner stopping or turning from his course, the emergency in which he was suddenly called to act had passed and the collision with the bulkhead occurred when he was trying to get back to his course. The question of his negligence was therefore for the jury.

The judgment is affirmed.


text:
    Sheridan, Appellant, v. Gray’s Ferry Abattoir Company.

      Appeals — Assignments of error — Evidence.
    Assignments of error relating to the rejection of testimony will not be considered where the offers and the ruling of the court thereon are not set out.

      Negligence — Master and servant — Evidence.
    In an action by an employee against his employer to recover damages for injuries sustained by the plaintiff getting his foot into a pit of hot oil and water, binding instructions for defendant are proper where the evidence shows that plaintiff was familiar with the room where the accident occurred, that the pit was covered with boards over which the plaintiff walked a number of limes each night, that there was nothing to show that the boards were decayed or out of repair, that the room was well lighted, and that it did not clearly appear how the plaintiff got his foot in the pit.
    Argued Jan. 8, 1906.
    Appeal, No. 201, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 4, Phila. Go., Sept. T,, 1901, No. 3,298, on verdict for defendant in case of William Sheridan v. Gray’s Ferry Abattoir Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    ' ■ Trespass to recover damages for personal injuries. Before Willson, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were as follows :
    1. Rejection of evidence of plaintiff that the covering of the pit deceived him as to any danger.
    2. Sustaining objection to offer that defendants neglected to warn plaintiff as to dangerous character of hole.
    3. Sustaining objection to offer to prove repairs made to the covering after the accident by the defendants.
    ' 4. Sustaining objection to proof as to condition of the lid over the hole a month prior -to the accident.
    5. Sustaining objection to offer of plaintiff to show how such holes were usually protected.

      6. Giving binding instructions directing verdict for defendants.

      Joseph Leedom, for appellant.

      William W. Smithers, of Smithers & Lank, for appellee.
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

All of the specifications of error are'in violation of the rules of court. The "first five relate to the rejection of testimony and the offers and the ruling of the court thereon are not set out: Rule 31. These must be disregarded. The sixth specification should have set out the instruction complained of: Rule 30. Since this specification is to a binding instruction to find for the defendant we will consider it notwithstanding the error in form.

The plaintiff was injured by getting his foot into a pit containing hot oil and water which dripped from the machinery of which he had at the time sole charge. He was an experienced engineer and electrician, and for nearly three weeks he bad been in charge as night engineer of the defendant’s engines, dynamo and ice machines which were in a room fifty by seventy-five feet. The floor of this room was cement and it was smooth and even except at one place some distance from the dynamo, where the cement had been raised to make a foundation for machines. Near the dynamo a pit was sunk in the floor to which by means of two small pipes water and oil which dripped from the machines were conducted. The top of the pit was twelve by fifleen inches; its depth was not shown. It was covered by boards fitted to the top and placed flush with.the surface of the floor. The plaintiff walked over these boards a number of times each night. There was no evidence that they were decayed or out of repair. The room was well lighted and there was an incandescent lamp within seven or eight feet of the'pit.

How the plaintiff got his foot in the pit does not clearly appear. There was an evident attempt on his part to fit his testimony to the support of the allegation that the pit was a hidden danger of the existence of which he had no knowledge, rather than to show the real facts of the casé." He testified at one time that he fell into the pit, at another that the boards were in place on the pit when he stepped on them. When aided by the question, “ And the boards gave way and your foot went in ; is that it? ” he answered, “ Yes, my foot went in.” He further testified that he had never examined the boards and had no knowledge of their condition, that he had not observed the pipes running into the pit, and supposed that the boards were used to fill up a depression in the floor. His witness, who worked in the same room, testified that he knew of the existence of the pit, that the pipes were plainly visible, and that the boards covering it were nailed to cleats and were apparently sound and strong before the accident, and that the only defect he observed after the accident was that some nails that fastened one of the boards to a cleat were loose.

There was nothing in this testimony to warrant a recovery against an employer, and a verdict was properly directed for the defendant.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Stitzer, Appellant, v. Fonder.

      Equity — A mounting — Mutual accounts — Discovery — Jurisdiction—Evidence — Books of account.

    A bill in equity for a discovery and for an accounting of profits under a contract, may be maintained where it appears that the contract imposed upon both parties mutual duties of accounting.
    In such a case books procured and opened by the parties for the purpose of keeping therein their joint accounts are admissible as evidence in support of the bill.
    On a bill in equity for discovery and an accounting, it appeared that the plaintiff and defendant agreed in writing that they would “together enter into certain contracts for municipal and government work, etc.,” defendant to advance all the moneys required, and the plaintiff “in lieu of advancing money shall devote his entire time and best services to the execution of the work thereupon.” Plaintiff was to receive $100 per month as compensation for his services, and a certain per cent “of the actual profits accruing from the business from said certain contracts” that he and the defendant “had mutually agreed to enter into, as aforesaid.” The defendant filed an answer in which he alleged that the contract was for the construction of underground conduits, sewers and drains, and that no contracts for such construction had been obtained. The answer admitted that the defendant had obtained a large number of contracts for general construction work. All of these contracts had been taken in defendant’s own name. Held, (1) that the agreement between the parties was not limited merely to contracts for conduits, sewers and drains; (2) that it was immaterial that the contracts were taken in the name of the defendant alone; (3) that the plaintiff was entitled to the equitable relief which he sought.
    Argued Jan. 9, 1906.
    Appeal, No. 316, Jan. T., 1905, by plaintiff, from decree of C. P. No. 1, Phila. Co., March T., 1905, No. 4,481, dismissing bill in equity in case of James Herbert Stitzer, Jr., v. Edward F. Fonder.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Bill in equity for an account and discovery. Before Brégy, J.
    The facts are stated in the opinion of the Supreme Court.
    The court after hearing testimony on motion dismissed the bill.

      Error assigned was decree dismissing the bill.

      Ira J. Williams, with him Frank S. Busser, for appellant.
    The answer tacitly admits all the facts which constitute appellant’s case, as made in the bill, including the execution of the agreement, its continuance for two years, the securing of contracts, appellee furnishing the money, the appellant, “in lieu of advancing money,” devoting “ his entire time and his best services to the execution of the work thereupon,” and the payment to Stitzer of $100 per month: Krueger v. Nicola, 205 Pa. 38; Fuller v. Law, 207 Pa. 101.
    It was error to exclude the books containing the transactions relating to the contracts in question : Frick v. Barbour, 64 Pa. 120; Richter v. Selin, 8 S. & R. 425.
    Even if the answer be regarded as responsive, it was overcome : McCullough v. Barr, 145 Pa. 459; Eaton’s App., 66 Pa. 483.
    The agreement did not contemplate that it should apply only to contracts actually signed, sealed and delivered by both the parties thereto: Blanchard v. Blanchard, 67 N. Y. Supp. 478; Iron & Coal Co. v. Smith, 66 Pa. 340; Brown v. Title & Trust

      Co., 174 Pa. 443; Hill v. Voorhies, 22 Pa. 68; Graham v. Dempsey, 169 Pa. 460.
    The agreement was clearly one of partnership: Little v. Hazlett, 197 Pa. 591; Gregg Twp. v. Half-Moon Twp., 2 Watts, 342; Sims v. Willing, 8 S. & R. 103; Gloninger v. Hazard, 42 Pa. 389; Oil Well Packer Co’s. App., 128 Pa. 421.

      Ruby R. Vale, with him Edward W. Magill, for appellee.
    While a right to share in the profits may constitute the relation of partnership as to creditors, yet the distinction has been authoritatively established in this state that an interest in or commission on contingent profits as the measure of compensation for services does not as between the parties themselves create the relation of partnership: Edwards v. Tracy, 62 Pa. 374; Miller v. Bartlet, 15 S. & R. 137; Dunham v. Rogers, 1 Pa. 255; Ryder v. Jacobs, 182 Pa. 624; Raiguel’s App., 80 Pa. 234.
    It is a well recognized rule that the burden of proving a partnership is upon him who avers it: Hallstead v. Coleman, 143 Pa. 352; Gibb’s Est., 157 Pa. 59; Sattler v. Sauer, 45 P. L. J. 143; Mathers v. Patterson, 33 Pa. 485; Fenner v. Rhoad, 8 North. Co. 121.
    It is a well settled principle that in equity a responsive answer is conclusive in favor of the defendant, unless it is overcome by the testimony of two credible witnesses, or of one witness and such corroborative facts as are 'equal to the testimony of another witness, and that consequently it has been held that the testimony of the plaintiff as to the .fact of partnership, when- met by the distinct denial of the defendant, is insufficient to establish the fact of partnership on a bill for an accounting: Mason v. Smith, 200 Pa. 270.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

James Herbert Stitzer, the plaintiff and appellant, is a civil engineer, and in the early part of 1903 was in the employ of the city of Philadelphia.. Edward F. Fonder, the defendant and appellee, is a contractor, and in 1903 and prior thereto had taken contracts for municipal work from the city of Philadelphia. By a contract in writing, dated April 27, 1903, entered into by the appellant and appellee, it was agreed: “ That the said Fonder and the said Stitzer hereby mutually agree that they will together enter into certain contracts for municipal and government work, etc., and for the said certain contracts that tllby shall together enter into, the said Fonder shall advance all the moneys required, and the said Stitzer, in lieu of advancing money, shall devote his entire time and his best services to the execution of the work thereupon. That the said Stitzer shall receive during the continuance of this agreement the sum of one hundred dollars ($100) per month as compensation for his services ; and, after all bills for material, labor, etc., bave been paid, the said Stitzer in addition to said compensation shall receive for the first year ten per cent (10$), and for the second and subsequent years twenty per cent (20$) of the actual profits accruing from the business arising from said certain contracts that he and the said Fonder have mutually agreed to enter into as aforesaid.” The agreement also provided that it could be terminated at the expiration of any one year by either party giving to the other thirty days’ notice. On March 24, 1905, the appellee sent a communication to the appellant notifying him that on and after April 27, 1905, the agreement, “ in which you were to receive a commission on certain contracts,” would cease and be considered as terminated on that date.

This bill was filed by the appellant setting up the contract, alleging that he had performed his part thereof and averring that he had not received his share of the profits thereunder, and praying for an accounting and discovery. The bill sets out the agreement at length and the notice of the appellee of its termination, avers that during the continuance of the agreement that the appellant devoted his entire time and 'his best services to the execution of the work upon contracts obtained for the joint benefit of the parties, that a large number of contracts were obtained which were taken in the name of the appellee and his company, that he received from the profits of these contracts $100 per month, part of his compensation mentioned in the agreement between him and the appellee, that the profits of the first year were little but for the second year would amount, in the belief of the appellant, to more than $40,000, and that all the assets and monej's belonging to the parties are in tbe hands of the appellee,jwlio refuses to account to the appellant for the amount due him.

The appellee filed an answer in which he admits the execution of the agreement in question, denies that there was any partnership between him and the appellant, alleges that it was the intention of the parties to enter into an agreement whereby the appellant should solicit work for the construction of underground conduits, sewers and drains, and for any and all contracts for the said work so secured by the appellant he and the appellee should enter into a contract for the construction of the said underground conduits, sewers and drains on the terms and conditions set forth in the agreement of April 27. The answer further denies that during the existence of the agreement there were any contracts for the construction of underground conduits, sewers and drains obtained by the parties, and denies that tbe appellant devoted his time and services to the execution of work upon such contracts. The answer admits that the appellee and his company obtained a large number of contracts for general construction work during the continuance of the contract. It denies that the appellant received $100 per month from the profits arising from any contract entered into in the name of the appellee or his company, but admits that he was paid that sum as compensation for bis services as an engineer until March 24, 1905. It avers that the agreement of April 27, contemplated the payment of profits only on contracts for underground conduits, sewers and drains, but alleges that no contracts for such work were obtained and that no profits were realized from such contracts.

After the testimony of the appellant had been heard on the trial in the court below, the learned judge granted a motion to dismiss the bill. Subsequently the appellant moved the court to change and vacate the motion or decree of dismissal, which was refused. The trial judge held that the agreement, if a partnership at all, applied only to contracts that the parties jointly entered into, that the evidence failed, to disclose that they entered into any contracts jointly, and therefore the bill should be dismissed. In concluding his opinion he says : “ Applying that contract to the testimony here, there have appeared no contracts that they have jointly entered into or that they have together entered into, and I think the fact that- Mr. Stitzer did work in preparing estimates for contracts that were entered into by Mr. Fonder alone, or Mr. Fonder in connection with Mr. Stulb, or that he even assisted or supervised work*’ done under those contracts, as his testimony shows he did, does not, I think, bring him in the position to claim that he was a partner under this agreement to those contracts.”

We do not agree with the learned trial judge in his construction of the agreement of April 27, 1903. We think it was error to hold that the plaintiff was only entitled to recover a share of the profits on contracts which he and the appellee had taken in their joint names. This error permeated the whole case and necessarily led the trial judge to a wrong conclusion. The agreement in question does not provide in terms or inferentially that the contracts in which the parties were to be jointly interested should be taken in their joint names. On the contrary, we think it clear that the test whether a contract was to be regarded as joint and as having been entered into by the parties, was whether “ Fonder shall advance all the moneys required and the said Stitzer, in lieu of advancing money, shall devote his entire time and his best services to the execution of the work thereupon.” Such is clearly the criterion of a joint contract established by the agreement itself. Any and all such contracts taken during the continuance of the agreement of April 27 were covered by the terms of that agreement, regardless of whether they were taken in the names of Stitzer and Fonder or in the name of either of the parties, or were taken by Fonder in the name of anotheroparty. On all such contracts Stitzer was entitled to receive $100 per month and, in addition thereto, for the first year, ten per cent, and for the subsequent years, during the life of the contract, twenty per cent of the net profits accruing from the business.

It is clear from the terms of the agreement that whatever contracts were taken by Fonder on which he paid Stitzer $100 per month for his.services, the latter is entitled to his percentage of the actual net profits accruing therefrom. ' The agreement provides that Stitzer shall receive $100 per month as compensation for his services, and in addition thereto a percentage of the profits. During the life of the agreement Stitzer was to “ devote his entire time and his best services to.,the execution of the work ” upon the contracts taken in pursuance of the agreement. Hence all contracts to the work on which he devoted his time and services, and for which he received $100 compensation per month, must clearly be regarded as joint contracts, the net profits of which Stitzer is entitled to share in as additional compensation for his services.

Under our interpretation of the agreement of April 27,1903, the appellant was clearly entitled to the relief he asked for. The material averments of the bill were not denied by the answer. The rights of the parties are to be determined by the written contract. The appellee does not allege fraud, accident or mistake, and hence the parties are bound by the contract as it is written. ' The answer admits the execution of the contract, but avers that, “ the said agreement of April 27, 1903, between the said Stitzer and myself contemplated the payment of the said profits only on contracts for underground conduits, sewers and drains,” and denies that any contracts for the construction of any such work were secured or entered into by Stitzer, or that appellee ever received any profits realized from contracts for the construction of such work. The interpretation thus put upon the agreement by the appellee is at variance, not only with its language but also with the manifest intention of the parties as disclosed by the instrument. There is nothing whatever in the agreement to show that the contracts contemplated by it were confined to the construction of underground conduits, sewers and drains. On the contrary, the agreement contemplated and included, using its own language, “ contracts for municipal and government work,” etc., and the appellant was entitled by its terms to participate in the net profits of all such contracts in which “ the said Fonder shall advance all the moneys required, and the said Stitzer, in lieu of advancing money, shall devote his entire time and his best services to the construction of the work thereupon.” Every contract brought’ within these limitations is a contract which the parties “ together enter into ” in contemplation of the agreement of April 27.

It will be observed that the appellee in his answer does not deny that he received profits from “ contracts from municipal and government work,” etc., but simply confines his denial to profits received from contracts entered into for the construetion of underground conduits, sewers and drains. The plaintiff in his bill does not claim profits from contracts of that character, and hence such denial is not responsive to the bill. The whole defense of the appellee, as set up in his answer, is confined to the allegation that the contracts in which the parties were to be jointly interested, in contemplation of their agreement,’were contracts for the construction of underground conduits, sewers and drains, and the denial that any such contracts were entered into by the parties or that any profits were realized from such contracts. The answer is based upon an entirely erroneous construction of the agreement of April 27, and does not meet the allegations of the bill.

It follows from what has been said that the 'learned trial judge of the court below, on the trial of the cause, erred in granting the motion to dismiss the bill. There was no responsive answer to the material allegations of the bill on which the plaintiff was entitled to the relief he sought. The contract was in writing and was for the court to interpret. Under a proper interpretation of the agreement, the material averments of the bill not being denied by the answer, the appellant was entitled to an accounting for all contracts entered into in pursuance of the agreement for “municipal and government work,” etc. We need not discuss or determine the effect on the trial of the cause of a responsive answer to the bill because, as we have seen, the appellee here did not deny but admitted the agreement as set out in the bill, and set up an erroneous interpretation of the contract and denied that he was .in fault under that construction of the agreement.

The léarned court below, as we understand its rulings, held that the contract between the parties created a partnership. Be that as it may, it was at least a joint venture in which there were accounts on both sides, and in which the relief at law would have been inadequate. By the terms of the agreement the appelleé was to “advance all.the moneys required” in the’ vénture, and, on the other hand, the appellant was, “ in lieu of advancing money,” to devote his entire time and his best services. It is apparent, therefore, that both parties had an account, or, in other words, there was an account on each side. ’ The venture was not a ’ single transaction, but applied to all contracts secured and entered into within two years, the life of the agreement. The averments of the bill show that there were many contracts taken, and the appellee should account for the net profits derived from each and all of them. Appellant’s percentage of the profits is to be computed, not upon the entire gains accruing from the business, but only on those Avhich remained after deducting “ all bills for material, labor,” etc. An accounting is therefore necessary to ascertain the amount of net profits in the various transactions which the appellant is entitled to. The bill not only prays for an accounting but also for discovery. In such cases, even where the accounts are all on one side, a bill will lie: Gloninger v. Hazard, 42 Pa. 389. It was held in Oil Well Packer Company’s Appeal, 128 Pa. 421, that a bill would lie for an accounting Avhere the relation was one of licensor and licensee. Mr. Justice Green, delivering the opinion, said (p. 427) : “Undoubtedly, equity has jurisdiction, whether the relation established by the contract be one of partnership or merely one of licensor and licensee. Mutual duties of accounting, under the contract, are imposed upon both parties; and, as the accounts are continuing and not single or simple, that circumstance is alone sufficient to bring the case within equitable cognizance.”

In so far as the books in the possession of the appellee contain the contracts secured and entered into in pursuance of the agreement of April 27, or the accounts of transactions arising out of such contracts, they were admissible as evidence for the appellant. The testimony shows that the books were procured for the purpose of keeping the accounts of the transactions of the joint business, that such accounts were entered in them, not only by the appellant but by the appellee’s son, and that the appellee was familiar with the books. The appellant testified that three months after he and the appellee had entered into their agreement, he bought the books and started to enter the accounts of these transactions. The books, therefore, were procured and opened by the parties for the purpose of keeping their joint accounts in them. The appellant has no right to have, nor does he ask, for books containing solely the private accounts of the appellee, but he and the appellee, having established a joint business venture he has a right to demand of the appellee the production of the books containing'the accounts of the venture.

The decree of the court below is reversed, and the bill is directed to be reinstated with a procedendo.


text:
    Hinkle, Appellant, v. Philadelphia.

      Municipalities — Contracts—Bidders—Appropriations.
    Where one of the bidders for the contract for the cleaning of the streets of one of the six districts of the city of Philadelphia has his bid accepted subject to a sufficient appropriation to cover the work, and it appears that at the time the bid was accepted, an appropriation had been made for the work of cleaning the streets of the whole city, but that this appropriation fell short of the aggregate of the contracts awarded for the six districts, the bidder is under no duty to execute a contract with the city or to do any work in cleaning the streets of the district for which he bid.
    Argued Jan. 10, 1906.
    Appeal, No. 202, Jan. T., 1905, by John H. Hinkle, trading as J. H. Hinkle & Company, plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1903, No. 4,279; for defendant on case-tried without a jury in the matter of John H. Hinkle, trading as J. H. Hinkle & Company, v. City of Philadelphia.
    Before Mitchell, C-. J.,
    Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover moneys retained by the city. Before von Moschzisker, J.
    The case was tried by the court by agreement of counsel without a jury under the act of April 22, 1874.
    The facts are stated in the opinion of the Supreme Court-
    Plaintiff presented the following requests :
    9. That the plaintiff was not in default on his part in the performance of any duty or obligation resting upon him by not beginning the said work by January 5, 1904; as he was required to do by the director of public works in the letter of January 4, 1904.
    To which the court made answer:
    The court refuses to so find and finds that the plaintiff was in default in not executing the contract when notified that same was ready for his execution, and thereby putting himself in a position to carry out his proposal for said work. Such a refusal on his part amounted in law to a declination to perform the work for which he had bid. [6]
    11. That the plaintiff was not, under the conditions then existing, bound to begin the work by noon of January 5,1904, as required by the director of public works, and a failure or refusal on his part to begin the work under such conditions as then existed would not justify the city in appropriating to its own use and withholding from the plaintiff the said sum of $5,000, so deposited by the plaintiff as aforesaid.
    To which the court made answer:
    The court refuses to find as requested, for the reason that all of the conditions then existing are not stated in the point, nor have they been duly stated in former requests. The point of law where sought to be raised will be discussed and decided in the opinion of the court to be filed herewith. [9] .
    18. Judgment ought to be entered for the plaintiff for the said sum of $5,000, with interest thereon, from January 5,1904.
    To which the court made answer:
    The court refuses to so find. [11]
    Defendant requested as follows :
    1. That under all the evidence the verdict must be for the defendant.
    The court so finds. [13]
    2. That under all the evidence the defendant is entitled to a certificate in its favor against the plaintiff for the sum of $5,000.
    To which the court made answer:
    The court finds that the defendant is entitled to have judgment entered in its favor, that the plaintiff shall take nothing by his writ, and shall pay costs. [14]
    3. That under the conditions of the proposal bond the defendant is entitled to recover from the plaintiff the sum of $5,000, being the difference between his bid, $239,000, and the bid and price paid Ruch, McLaughlin & Company, $244,000, for the performance of the said work.
    To which the court made answer :
    The court so finds. [15]

      The court made the following conclusion of law :
    In this case judgment will have to be entered that the plaintiff take nothing by his writ and shall pay the costs. [82] .

      JErrors assigned were, among others (8, 9, 11, 13, 14, 15 and 32), rulings on requests as above.

      E. O. Michener, with him J. Quincy Hunsicker, for appellant.
    It is clearly the law that the city could not legally call upon the plaintiff to begin the work until a contract had been executed, and it is equally clear that the plaintiff could not hold the city liable for any work done by him until the contract was duly executed and certified: City of Erie v. Moody, 176 Pa. 478; Hepburn v. Phila., 149 Pa. 335; Malone v. Phila., 147 Pa. 416.
    The city was not bound by the award, and could any time before the contract is actually executed by it refuse to enter into the contract, and such refusal could not be made the basis of an action for breach of contract on the part of the city: Smart v. Phila., 205 Pa. 328; McManus v. Phila., 201 Pa. 619.

      T. D. Finletter, with him John L. Kinsey, city solicitor, for appellee.
    The defendant is entitled to recover damages commensurate with the injury suffered by nonperformance of his contract “ to pay the difference between the bids.” If the actual damage had been less than the penal sum of the bond, it could not have been successfully contended that the defendant could have recovered more than the actual damage suffered: Clements v. Schuylkill River, etc., R. R. Co., 132 Pa. 445.
    And conversely it makes no difference in principle, if the amount of damage exceeds the penal sum: Graham v. Bickham, 4 Dallas, 149; s. c. 2 Yeates, 32; Shreve v. Brereton, 51 Pa. 175.
    In the latter case, a verdict of $25,000 was upheld by the Supreme Court upon a bond in the penal sum of $10,000: Hughes v. Hughes, 54 Pa. 240; New Holland Turnpike Co. v. Lancaster County, 71 Pa. 442; Robeson v. Whitesides, 16 S. & R. 320; Burr v. Todd, 41 Pa. 206; March v. Allobaugh, 103 Pa. 335.

      February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

There is one controlling question in this case, and on the facts found by the trial judge, our view of it compels us to rule the case against the city. It is therefore unnecessary to discuss or determine the other questions raised on the record or to examine or review the testimony produced at the trial.

The bids or proposals were opened on December 30, 1903, and the contracts were awarded on December 31 for cleaning the streets of the entire city during the year 1904. For convenience in letting and performing the work, the city is divided into six street-cleaning districts. Contracts were awarded at the same time for doing the work in all the districts and aggregated the sum of $976,190. In the first four districts the contracts amounted in the aggregate to $734,000. The contract for the fourth district was awarded to the appellant for the sum of $239,000. On the day the contracts were awarded the city councils by ordinance appropriated the sum of $693,850 to pay “ for cleaning streets, inlets, private alleys, undedicated paved streets, public market houses and for the removal and disposal of ashes and house waste,” which sum so appropriated was $282,340 less than the total amount of contracts awarded for the work to be done in the city. Each of the successful bidders in all the districts was notified that he was a successful bidder for the contract for the work of his district and to commence the work on January 1, 1904. The appellant was notified by the chief of the bureau of street cleaning on January 1, 1904, that he was the “ lowest bidder at $239,000, and the contract was awarded to you (him), subject to an appropriation to be made by the city councils,” and that he was required to begin work immediately. On the same day he was also notified that the city solicitor would be requested to draw the contract and the appellant was notified to deposit ten per cent of the contract price in accordance with the specifications and proposal.

The appellant, by a letter dated January 2, 1904, and delivered the same day, notified the director of public works that he did not feel justified at that time, under the conditions as they then existed, to begin the work called for by the contract awarded him. On the same day, which was Saturday, the appellant was notified by the city solicitor to call on the following Monday, January 4, to execute “your bonds and contract with the city of Philadelphia for cleaning of streets in the Fourth District of the city of Philadelphia during the year 1904.” The appellant having failed to comply with this request, the director of public works sent a letter on Monday notifying him that if he did not commence the work by noon of the next day, January 5, the contract would be awarded to the next lowest bidder and the appellant would be held responsible for any loss or damage the city might sustain. The work was not begun at the time required by the director, and on January 5 the latter changed the award of the contract for the work in the fourth district and awarded it to the next lowest bidder at $244,000, which was $5,000 more than the appellant’s bid. The director then delivered to the city treasurer the appellant’s certified check for the sum of $5,000, which was paid to the treasurer. This check had been deposited by the appellant with his bid in compliance with the following provision of the specifications : “ A certified check in the name of the bidder payable to the order of the treasurer of the city of Philadelphia for $5,000 must accompany each bid. This check will be returned at once to the unsuccessful bidders; but will be transferred to the city treasurer on account of the ten per cent, required to be deposited by those 'to whom the contracts are awarded.”

The appellant submitted his bid on December 24, 1903, and at the same time signed the proposal and specifications, and as required by ordinance also entered into a bond with a surety to the city in the penal sum of $500, conditioned That if the bid of the said John H. Hinkle, trading as aforesaid, is the lowest, and he shall decline to perform said work, that we will pay to the city the difference between the amount of his bid and the bid of them or him who shall actually perform said work.” One of the conditions contained in the specifications is: “ This proposal will hold good until an appropriation is made by city councils for the work to be done and the award will be made subject to an appropriation.”

After the contract for the work in the fourth district had been changed and awarded to the lowest bidder, the appellant demanded of the director of public works the return of his certified check, which was refused. This suit was then brought to recover $5,000, the sum called for in the check, with its interest. The case was tried before the court without a jury; The appellee pleaded non assumpsit, payment with leave, etc., and set-off, and gave notice of special matter and set-off. The appellee’s position on the trial which was sustained by the court below was that the appellant’s “ declination to sign the contract was a declination to do the work, within the terms of the proposal bond,” and that as against the appellant’s claim for $5,000, the appellee had the right to set off, in the language of the condition of the bond, “ the difference between the amount of his bid and the bid of him or them who shall actually perform said work.” This sum, as appears by the evidence, was $5,000, the exact amount of the appellant’s certified check for which he sues in this action. The appellee does not contend that the $5,000 check, deposited by the-appellant, was forfeited, but claims the right to set off against it the damages the city has sustained by a breach of the appellant’s proposal bond in declining to do the work called for in the contract awarded him.

The burden was upon the appellee, under the pleadings, to show that the appellant had failed to observe the condition of his bond. We have referred above to the material facts in the case bearing upon that question, and they do not sustain the appellee’s contention. We are clearly of opinion that up to the time the director of public works changed the award and let the contract for the work to the next lower bidder, the appellant was not required, under the conditions then existing, to sign a contract to do the work on the terms of his bid. If he was not required to sign the contract, it follows that he was not required to do the work called for in his bid. That is clear from the statutory provisions regulating municipal contracts and our decisions construing them, and is substantially admitted in the printed brief of appellee’s counsel. It is there said : “ The fact is, he (plaintiff) first declined (very properly) to do the work until the contract was signed; and then declined to sign the contract when it was tendered.” Was the appellant legally justified in declining to execute the contract ?

The statutes and city ordinances made in pursuance thereof provide when, and the manner in which, city contracts shall be made, and we have frequently and uniformally held that a valid contract cannot be entered into without a strict adherence to those statutes and ordinances. Section 7 of the Act of May 23, 1874, P. L. 230; 2 Purd. 1396, pl. 25, provides that: No money shall be paid out of the city treasury except upon appropriations made by law, and on warrant drawn by the proper officer in pursuance thereof.” The 7th section of the Act of June 1, 1885, P. L. 37; 2 Purd. 1518, pl. 717, provides: “ Every contract .... shall designate the item of appropriation on which it is founded, and shall be numbered by the controller in the order of its date and charged as numbered against such item, and so certified by him before it shall take effect as a contract, and shall not be payable out of any other fund, and if he shall certify any contract in excess of the appropriation properly applicable thereto, the city shall not be liable for such excess.” The 5th section of the Act of April 21, 1858, P. L. 385; 2 Purd. 1519, pl. 723, declares that “ No debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.” The first section of the Act of June 11, 1879, P. L. 130; 2 Purd. 1424, pl. 50, provides: “ The city controller shall not countersign any warrants .... pertaining to any of the appropriations, until the said councils shall have first passed all appropriations necessary for the expenses for the current year of each department . . . .; nor shall said officer countersign any warrants, .... until the total of all appropriations, all estimates, .... shall have been brought within the sum yielded by the tax levy and average income from other sources . . . . ; and any appropriation or expenditure, in excess of this total shall be void, and shall have no binding force upon the municipality.” Article 14 of the Act of June 1, 1885, P. L. 37 ; 2 Purd. 1517, pl. 715, declares that: “ All contracts relating to city affairs shall be in writing, signed and executed in the name of the city by the officer authorized to make same. . . . Every contract for public improvements shall be based upon estimate of the whole cost furnished by the proper officer through the department having charge of the improvement, and no bid in excess of such estimate shall be accepted. Every such contract shall contain a clause that it is subject to the provisions of this act, and the liability of the city thereon shall be limited by the amounts which shall have been or may be, from time to time, appropriated for the same.”

Under these statutory provisions, which are mandatory, it is manifest that the city was not in position to enter into the contract for the street cleaning of the fourth district on January 5,1904, when it changed the appellant’s award and denied him the opportunity and the right of executing a contract for the work. As we have seen, the aggregate of the contracts for cleaning the streets in the city awarded December 31,1903, was $976,190. On the same day the councils appropriated $693,850, which, as the trial court held, was “ for the purpose of cleaning the streets and removing the ashes in the city of Philadelphia, which covered the whole of the six districts, in which the bids amounted to $976,190, (and) that no further appropriation was made by councils to pay for the balance of the work until the 17th day of February, 1904.” In other words, the appropriation made by the councils for cleaning the streets of the city were $282,340 less than the accepted bids for the work. These were the conditions which existed at the time the appellant declined to enter into a. contract for the work for which he had submitted a proposal. The court held, however, that these conditions did not relieve the appellant, that the appropriation was sufficient to cover his bid, and that complied with the statutory provisions requiring a prior appropriation to be made for the work. The learned judge’s reason for his conclusion on this point is stated by him as follows : “ Our view of the law coincides with the view expressed by the city controller when on the stand in this case, to the effect that he would be justified in certifying all contracts sent to him, under the words of this particular appropriation, up to the amount of the appropriation, but not beyond the same.” But this view overlooks and disregards, not only the mandatory provisions of the statute but also the explicit language of the appropriation for the work, which is as follows: “For cleaning streets, inlets, private alleys, undedicated paved streets, public market houses and for the removal and disposal of ashes and house waste, $693,850.” This appropriation, as held by the trial judge, clearly covered the work to be done in the whole city and not any special district thereof, and payment out of it could be demanded for work in any of the six street-cleaning districts of the city. No contractor for any district had a claim on the appropriation to the exclusion of the contractors for the other five districts. It was available to all alike. • But it is contended by the appellee, and so held by the court below, that the controller has the authority to dispose of the partial appropriation by certifying contracts aggregating that amount, and that his certificate would have protected the plaintiff had he entered into a contract. If this be true then we have an appropriation made by the city councils for cleaning the streets of the whole city applied to the work of cleaning the streets of a part of the city, and such parts only as, in his discretion, the controller shall select by the certification of a contract. If the appropriation, though general and covering the work of the entire city, be sufficient to pay only the bid for the work in one of the districts, the controller by certifying a contract for that district may apply the whole appropriation to one-sixth of the city. It was the intention of the law making power that the councils should control the appropriations for street cleaning, and unless they limit them to certain districts it is not in the power of the city controller, by any discretionary act on his part to do so. There is no limitation whatever put upon the appropriation in question. It is as broad as the city itself and, until the appropriation was exhausted, every contractor had the right to demand the price of his contract out of it.

It is said by the court below in support of its position that at the time the city demanded that the appellant enter into a contract, “ the other contracts for street cleaning had not been entered into, and the city, for its own reasons, did not execute those contracts or call upon the other contractors so to do until February, 1904, satisfactory arrangements having been made in the other districts to carry on the necessary work pending the actual execution of the contracts.” By what authority, however, did the city officials postpone the letting of the contracts in the other districts ? And what reason had the appellant to believe that they would disregard their duty in this respect and neglect or refuse for more than a month to sign contracts with the successful bidders in the other five districts and certify the amounts of those contracts against the insufficient appropriation? It is found as a fact by the trial judge that on December 31,1903, the day the contracts were awarded, “ notices went out to all successful bidders, notifying each that he was a successful bidder for a contract for a certain district and to commence the work on January 1,1904.” And the appellee, in his printed argument, has clearly demonstrated that the work of cleaning the streets should have been begun immediately after the contracts were awarded. The urgency of the work is also shown in the opinion of the trial court wherein it is said: “ This particular work was for cleaning streets, etc., during the year 1904, which of course on its face, owing to the character of the work, showed that active operations would, of necessity, have to begin on January 4,1904, and that time was of the essence of the matter.” The city officials, therefore, should, and it must be presumed would, have provided for beginning the work in all the districts by executing the contracts at once. The statutory provision is mandatory that those contracts shall be in writing, and it follows that that is the only legal way that “ satisfactory arrangements ” could be made for carrying on the work. The appellant, therefore, had the right to assume that the contracts for all the other districts would, like his own, be let at once, and, necessity demanding it, the contractors would begin the work immediately, and for their protection the contracts would be certified against the appropriation by the controller. There would then have been, on January 1, 1904, contracts certified to the amount of $976,190, to be paid out of an appropriation of $693,850, which is nearly $300,000 less than the aggregate of the contracts awarded. Under these circumstances, the appellant was compelled to decline entering into a contract or to rely for payment of his money on the controller “ marking off,” or giving preference to, his contract over other and similar contracts, which was beyond the authority of the controller, in direct violation of the mandatory provisions of the statute, and would not have been binding on the city.

The appellant’s bid as well as the award to him were made subject to a sufficient appropriation to cover the work. Both the city and the appellant in the bid and the award recognized the necessity for an appropriation to give validity to the contract. In the specifications furnished by the city and subject to which the proposal was submitted appears the following condition: “ This proposal will hold good until an appropriation is made by the city councils for the work to be done and the award will be made subject to an appropriation.” In awarding the appellant the contract for the work in the fourth district, the director of public works notified him that he was the lowest bidder “ and the contract is awarded to you subject to an appropriation to be made by the city councils.” Had the appellant entered into a contract and done the work, it would have been with full notice that he could not compel payment of his bid without showing that councils had made a specific appropriation for the work. It would not have availed him in support of his claim that an obliging director had assured him that he would “ mark off ” his contract against the partial appropriation. To a suggestion of that kind, the city would have properly replied that neither the statutes nor the city ordinances vest in the director the authority to discriminate in favor of one contractor against another in paying their claims out of an insufficient appropriation made for the work to be done in that department of the city.

We are of the opinion that a contract for cleaning the streets of one part of the city could not legally be made until an appropriation had previously been made sufficient to pay all the contracts awarded at the same time on December 81, 1903, for the work in that department of the city, and that until such an appropriation had been made, the appellant was not required to sign a contract to do the work of the fourth district in pursuance of his proposal. It follows that he was not in default in declining to sign the contract presented by the city and hence was not in default in refusing to commence the work. There was, therefore, no breach of the appellant’s proposal bond which could be interposed as a defense to his action for the recovery of his deposit and judgment should have been entered for him by the trial judge.

The sixth, ninth, eleventh, thirteenth, fourteenth, fifteenth and thirty-second assignments of error are sustained, the judgment is reversed, and the court below is directed to enter judgment in favor of the appellant and against the appellee for $5,000, with interest from January 5, 1904, and costs.


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    Sixty-Second Street.

      Road law — Change of grade — Damages—Instructions.
    A verdict and judgment for a municipality in a proceeding to recover damages for the change of grade of a street, will be affirmed, where the jury were instructed to ascertain the effect of the grading of the street upon the particular piece of land in question in view of its location with reference to the surrounding land and to open and plotted streets, and the uses to which it might be adapted; and, if they found that the plaintiff was entitled to recover, to render a verdict for the difference between the fair market value of the land before the grading was done and its market value after.
    Argued Jan. 10, 1906.
    Appeal, No. 249, Jan. T., 1905, by plaintiff, from 'judgment of C. P. No. 4, Pliila. Co., March T., 1902, No. 3,408, on verdict for defendant in case of Change of Grade of Sixty-Second Street from Race Street to Vine Street in the city of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Willson, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions.

      Trevor T. Matthews, for appellant.
    Experts in a road case, in giving the before value, cannot take into consideration the effect upon the value of the property of the paper change of grade prior to the actual change: Ogden v. Phila., 143 Pa. 430; Jones v. Bangor Borough, 144 Pa. 638; Clark v. Phila., 185 Pa. 503.

      John H. Maurer, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellee,
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

The specifications of error are founded on a single exception allowed to the charge and they bring up for review only the instruction given to the jury. The action was to recover damages alleged to have been occasioned by the grading of a city-street. The grade was established in 1880. The plaintiff became the owner of the land in 1900. The actual grading was done in 1902. The question of fact at the trial was whether the plaintiff’s land had been injured. The jury were instructed to ascertain the effect of the grading of the street upon the particular piece of land in question, in view of its location with reference to the surrounding land and to open and plotted streets and the uses to which it might be adapted; and, if they found that the plaintiff was entitled to recover, to render a verdict for the difference between the fair market value of the land before the grading was done and its market value after. This was a clear statement of the rule for the measure of damages in such a case.

The .judgment is affirmed.


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    Philadelphia v. Pennsylvania Company for the Instruction of the Blind, Appellant.

      Appeals — Supreme Court — Superior Court — Error of counsel — Misapprehension of facts.

    On an appeal from the judgment of the Superior Court, the question for the decision of the Supreme Court is whether the judgment of the Superior Court is correct on the record which was before it. If there has been a misapprehension of the facts, through the inadvertent error of counsel in presenting the case, the remedy is to be sought by an application to that court and not by an appeal to the Supreme Court.

      Taxation — Exemption—Charity—Portion of year.

    A defense to a scire facias on a tax lien, which alleges that after the liability for tax became fixed for the year the property was devoted to a use which exempted it from taxation, is not available.
    Argued Jan. 10, 1906.
    Appeal, No. 257, Jan. T., 1905, by defendant, from judgment of Superior Court, Oct. T., 1903, No. 245, reversing judgment of C. P. No. 1, Phila. Co., Sept. T., 1898, No. 868, M. L. D. discharging rule for judgment for want of a sufficient affidavit of defense in case of City of Philadelphia v. Pennsylvania Institution for the Instruction of the Blind.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elexn and Stewart, J J.
    Affirmed.
    Appeal from Superior Court, see 28 Pa. Superior Ct. 421.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      H. Gordon McCouch, of Dickson, McCouch Glasgow, with him Henry S. Drinker, Jr., for appellant.

      James Alcorn, assistant city solicitor, with him John L. Kinsey, city solicitor, and. Mayne R. Dongstreth, for appellee.
    February 26, 1906:
   Opinion by

Mr. Justice Fell,

The appeal to the Superior Court was from an order of the common pleas discharging a rule for judgment for want of a sufficient affidavit of defense in a proceeding by the city on a claim for taxes for the year 1897. It was alleged in the affidavit of defense that the defendant conducted a school for the blind, founded, endowed and maintained by public charity and open to all blind persons in need of instruction; that in 1896 it purchased for the use of the school the land against which the tax claim was filed, andón July 29,1897, it began the erection of school buildings which were not completed until the end of the year 1898 ; that all this land is necessary to, and is used exclusively for, the purpose of the school, and that no rent, revenue or income is derived therefrom. It was admitted in the affidavit that the land was liable for an apportioned tax from January 1 to July 29,1897, but an exemption was claimed for the remainder of the year 1897.

The judgment of the common pleas was reversed by the Superior Court for two reasons : (1) that the decision of the taxing officers was final and conclusive, no appeal having been taken from the assessment; (2) that no valid ground of defense was set up by the affidavit. It is not disputed that the decision of the taxing officers unappealed from was conclusive, but it was claimed that the court misapprehended the facts. The first specification of error is : “ The Superior Court erred in its statement of fact in the following passage of the opinion: ‘ No appeal having been taken from the assessment of the tax in question, the decision of the taxing officers became final.’ It was stated in the argument that an appeal had been taken from the decision of the board of revision of taxes to the court of common pleas No. 4 of Philadelphia, and that an agreement of counsel had been filed in common pleas No. 1, where the action on the lien was brought, that no advantage should be taken by the plaintiff of the fact that an appeal was pending and was undetermined. This was not brought to the attention of the Superior Court, and there was nothing in the record showing that an appeal had been taken. On an appeal from the judgment of that court, the question for our decision is whether the judgment of the court is correct on the record which was before it. If there had been a misapprehension of the facts, through the inadvertent error of counsel in presenting the case, the remedy is to be sought by an application to that court and not by an appeal to this court.

The judgment of the Superior Court should be sustained for the reason also that a change in the use of property after the tax had become a lien, was not a defense to the action. The assessment had been completed and the tax for the whole year had become a fixed liability due seven months before the change in the use. In Moore v. Taylor, 147 Pa. 481, relied, on by the appellant, no tax had been assessed because at the time of the assessment the building had been used as a place of public worship and therefore was exempt, but during the year this use had ceased and it was held that the property became at once assessable for the unexpired term of the year. It does not however follow that if a change in the use of a property during the tax year exempts it from future assessments, it will be relieved from the payment of a tax duly assessed when it was liable. The general rule is otherwise. An act of an owner of property that brings it within an exemption provided by law does not relieve from taxes previously levied: 12 Am. & Eng. Ency. of Law (2d ed.), 310. This rule was applied in Tobin v. Morgan, 70 Pa. 229, in which the question of exemption arose under the Act of March 25, 1864, P. L. 85, exempting the property of soldiers from bounty tax, and it was decided that the act did not relieve from a tax levied before enlistment. The tax was levied in June and the appellant was mustered into military service in October. It was said in the opinion by Shakswood, J.: “ When he was taxed he was subject to the tax, and his subsequent exemption did not relieve him from responsibility.”

The judgment is affirmed.


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    Clad’s Estate.

      Statute of limitations — Promissory notes — Payment of interest — Evidence.
    Where a man has given a promissory note to his mother-in-law, and has paid interest thereon for twenty-three years until his death, and such payments have been at stated interest periods either by the maker personally, or by his daughter with money supplied by the maker, and the note remains in the hands of the payee, the bar of the statute of limitations is tolled, and the daughter will not be permitted after her father’s death to assert that the note was given to her by her mother.
    The declarations of a decedent that he had been paying and would continue to pay interest on a note may be shown by the testimony of a stranger.

      Evidence — Party dead — Decedent’s estates.

    Where the claimant against the estate of a decedent is called as a witness in his own behalf, and testifies to facts occurring since the death of the deceased, and on cross-examination is interrogated as to matters occurring during the lifetime of the deceased, he becomes a competent witness for himself as to all relevant and material matters.
    Argued Jan. 11, 1906.
    Appeal, No. 331, Jan. T., 1905, by Louise Clad, from decree of O. C. Phila. Co., April T., 1904, No. 428, dismissing exceptions to adjudication in Estate of Valentine Clad, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Henry C. Terry, for appellant.
    In a case of a debt barred on its face by the statute of limitations, collateral matters cam not be relied on to support the alleged promise or acknowledgment. An identification by mere inference of the jury from other collateral matters is not sufficient: Rosencrance v. Johnson, 191 Pa. 520; Claghorn’s Estate, 181 Pa. 608.
    As to any matters occurring in the lifetime of Valentine Clad certainly the claimant was incompetent as a witness, and any declarations alleged to have been made to Mrs. Schussele were not binding on the estate because made to a stranger: Lowrey v. Robinson, 141 Pa. 189.
    A promise to pay a debt barred by the statute of limitations will operate to remove the bar of the statute only when the particular debt is unequivocally identified and acknowledged by the debtor at the time of the promise. Any uncertainty, either in the acknowledgment or identification, is fatal: Landis v. Roth, 109 Pa. 621; Hobough v. Murphy, 114 Pa. 358; Linderman v. Pomeroy, 142 Pa. 168; Patterson v. Neuer, 165 Pa. 66; Simrell v. Miller, 169 Pa. 326; Ward v. Jack, 172 Pa. 416; Rosencrance v. Johnson, 191 Pa. 520.
    A promise to take the case out of the statute of limitations must be made to the plaintiff or his agent, and the acknowledgment must be a debt due plaintiff: Christy v. Flemington, 10 Pa. 129; Gillingham v. Gillingham, 17 Pa. 302; Lowrey v. Robinson, 141 Pa. 189.
    The acknowledgment must be consistent with a promise to pay, and any words or explanations inconsistent therewith, accompanying the acknowledgment, render it insufficient: Wells v. Wilson, 140 Pa. 645; Linderman v. Pomeroy, 142 Pa. 168; Patterson v. Neuer, 165 Pa. 66; Miller v. Miller, 47 Legal Int. 475.

      Albert L. Moise, of Sharp, Alleman Moise, for appellee.
    There was no valid gift of the debt by the payee to the maker of the note which was the evidence of the debt: Parker’s Estate, 34 W. N. C. 376; Stockham’s Estate, 19 Pa. C. C. Rep. 369; Smith v. Bank of Washington, 5 S. & R. 318; Stockham’s Estate, 19 Pa. C. C. Rep. 620.
    Interest was paid on said note within six years last past and tolled the statute: Wright v. Jordan, 181 Pa. 100.
    Appellee was made a competent witness for all purposes by the cross-examination of her on new matter by appellant’s counsel: Seip v. Storch, 52 Pa. 210; Hambleton’s Estate, 166 Pa. 500; Watkins v. Hughes, 206 Pa. 526; Belcher’s Estate, 51 Pittsburg Leg. Journ. 174.
    February 26, 1906:
   Opinion by

Mr. Justice Mestrezat,

Valentine Clad died February 11, 1902, and letters testamentary upon his estate were granted to his wife, Louise Clad, the appellant. At the audit of the account of the executrix, in May, 1905, Lydia Muringer, executrix of Eva S. Muringer, deceased, presented for allowance a claim for $2,100, with interest at five percent, from January 1, 1904, which she alleged to be due on a demand promissory note, not under seal, dated July 1, 1881, signed by Valentine Clad and payable to Mrs. Eva S. Muringer, the note stating the interest to be due on January 1 and July 1 of each year. Mrs. Muringer was the mother of Lydia Muringer and of Mrs. Valentine Clad.

The auditing judge found, on sufficient evidence, the following facts:

“Eva S. Muringer died in 1889, and it is agreed that Valentine Clad paid her interest on this note up to the date of her death.

“ From 1889 to 1894, interest or an amount of money equal thereto — $52.50—was paid to Lydia Muringer, executrix of Eva S. Muringer and residuary legatee under her will, either by Valentine Clad or his daughter Eva S. Clad.

“From 1894 to 1902, the date of Valentine Clad’s death, money amounting to $52.50 was paid to Miss Muringer each six months with perhaps the exception of two or three times when amounts closely approximating that sum were paid her by Miss Eva Clad.

“ These payments were designated as presents to her aunt from her and her younger sister and were during the lifetime of her father paid with money received from him.

“ From the death of Valentine Clad to January, 1904, payments of these amounts continued.”

Mrs. Muringer, the payee of the note, had possession of the note until her death in 1889, when it passed into the hands of Lydia Muringer, her executrix, the appellee, who still retains it.

The auditing judge held, against the contention of Louise Clad, executrix of Valentine Clad, deceased, the appellant, that there had been no gift of the note by the payee in her lifetime to the daughters of the maker, and that the evidence introduced at the audit was sufficient to toll the running of the statute of limitations. The court in banc confirmed the adjudication, saying: “ It is very clear that no valid gift of the note presented as a claim against the estate of the decedent was shown and the auditing judge has found as a fact that payments of interest which .prevented the running of the statute of limitations, were made within six years.” The appellant’s counsel, in his printed brief, has confined his discussion to the sufficiency of the evidence to prevent the running of the statute. He, however, suggests in his argument that Lydia Muringer, the claimant, was not a competent witness to testify to matters occurring in the lifetime of Valentine Clad, and that “ any declarations alleged to have been made to Mrs. Schussele (by Clad) were not binding on the estate because made to a stranger.”

It is settled that a claimant against the estate of a decedent is not competent to testify for himself relative to matters occurring in the lifetime of the decedent. But it is equally well settled that where a claimant is called as a witness in his own behalf and testifies to facts occurring since the death of the deceased and, on cross-examination, is interrogated as to matters occurring during the lifetime of the deceased, that he becomes a competent witness for himself as to all relevant and material matters : Hambleton’s Estate, 166 Pa. 500; Watkins v. Hughes, 206 Pa. 526. When Lydia Muringer was called as a witness to support her claim against the estate, her examination was confined to matters occurring since the death of Mr. Clad. To that extent she was clearly competent. When the learned counsel for the appellant cross-examined her, however, he did not confine himself to occurrences since the death of Mr. Clad, but went beyond that date and interrogated her fully as to matters occurring prior to his death. This made her competent for all purposes, and her counsel was then at liberty to examine her on all matters relative and material to her claim against the estate.

Appellant’s counsel misapprehends the purpose of Mrs. Schussele’s testimony. It was not introduced for the purpose of showing an acknowledgment of the debt, thereby tolling the statute, for which purpose, having been made to a stranger, it would not have been competent; but for the purpose of showing by the decedent’s declarations and admissions that he was paying interest on the note, which, if true, would prevent the running of the statute. In other words, the purpose of the testimony was to show, by the decedent’s own admissions, that he had been paying, and would continue to pay, interest on the claim in controversy.

We think there was ample evidence to justify the orphans’ court in holding that the statute of limitations had been tolled by the payment of interest on the note. The note was given in 1881 for money which it was admitted was received by Clad from his mother-in-law, and which he used in his business. The interest, as shown by the note, was due semiannually, on January 1 and July 1 of each year. Clad paid this interest, 152.50, regularly and semiannually until the death of the payee, Mrs. Eva S. Muringer, in 1889. From that date till 1894, the same amount of money was paid to Mrs. Muringer’s executrix by Clad or his daughter, Eva S., on or about the times the semiannual payments of interest were due. From 1894 until Clad’s death in 1902 like sums, except on two or three occasions, were paid at or about the same dates to the executrix of the payee by Miss Eva Clad, and the payments were continued until January, 1904. The original payee and her executrix have had possession of the note from its date till the present time, and during all those twenty-three years it is admitted there has been paid by the maker or a member of his family to whom he paid a like sum on each occasion, semiannually, on or about January 1 and July 1, a sum of money exactly equal to the interest due on the note on those dates. In the face of these facts alone the allegation of the appellant is incredible that subsequent to the death of Mrs. Eva S. Muringer, the payee, the semiannual payments were presents and not interest. The learned judge below correctly held that there had been no gift of the note by the payee in her lifetime to the children of the maker, as claimed by the appellant, and that ruling is not seriously controverted here by the appellant. The note, therefore, properly passed into the possession of the executrix of the payee at the latter’s death, and it, as well as the indebtedness secured by it, is a part of Mrs. Muringer’s estate. The definite sums paid semiannually to the executrix of Mrs. Muringer were due her on the note on these dates, and on no other claim or obligation, either individually or as executrix. If it was a present, and was not paid as interest, why was the exact sum to the very cent, $52.50, handed to the executrix, to whom the interest was payable every six months, for fifteen years, during all of which time the appellant, who made these presents, alleges the note as well as the indebtedness belonged to her children ? Again, if the payment was a present, why did the maker of the note pay, with the same regularity and on the same dates, to his wife and daughter, who delivered it to the executrix, a sum of money the exact equivalent of the interest due semiannually on the note ? The evidence discloses no satisfactory answer to these questions, but, on the contrary, as said by the learned auditing judge, “ whether paid by himself (Valentine Clad, the maker,) or his daughter, the peculiar amounts and the definite periods of its payment certainly earmark it as interest on this note.”

The appellant’s contention that the sum paid by her and her daughter were presents and not interest, is refuted not only by its improbability on the conceded facts but also by the positive testimony of the appellee’s witnesses. There is no evidence in the case, and it is not claimed, that Clad was indebted to Mrs. Eva S. Muringer or her executrix in any other sum or on any other note ; nor does the evidence show, nor is it contended, that Clad or his children paid to the payee or her executrix any other moneys as interest. Lydia Muringer, the executrix and appellee, testified that when Miss Eva Clad made the semiannual payments she said it was a present, but that she, the witness, “ would object every time, because it was not a present.” Mrs. Schussele is a daughter of Mrs. Eva S. Muringer and the sister of Mrs. Clad and of Lydia Muringer, the appellee. She testifies that about one and a half or two years before Clad’s death she had a conversation with him in which he said: “I am a very sick man ; we have such discussions at home, such quarrels with my wife and Miss Muringer about this interest business that I am going to forbid Miss Muringer the house.” The witness replied : “ That is all very well, to forbid her the house, but you pay her first that $2,100 of mother’s note, then you can forbid her the house.” Clad then said: “ Why, she don’t need that money; you big fool, how can I take $2,100 out of my business as if it was so many cents ? She don’t need the money ; I will go on and pay her interest, and that is all she needs.” In view of the fact that the semiannual installments of money paid to Mrs. Muringer in her lifetime, and being paid her executrix at the time of this conversation by Clacl’s daughter with moneys furnished by him, were the semiannual payments of $52.50, the exact amount due on those dates as interest on the note, it is manifest the money paid by the daughter was Clad’s money, and was paid and received as interest on the note. On another occasion, two or three years before his death, Mrs. Schussele heard a conversation between Miss Muringer, the executrix, and Mr. Clad, in which Miss Muringer said to him she had come to see if she could “ get her interest, it is over ten or twelve days,” and that he then paid her the interest. Mrs. Schussele further testifies that during Clad’s absence and within three or four years of his death, she saw Mrs. Clad pay Miss Muringer the interest in cash several times and take receipts. Miss Muringer testifies that the interest was paid her till January, 1904, by Mrs. Clad or one of her daughters, and she frequently gave receipts for it.

It is manifest, we think, that calling the sums paid by Clad’s wife and daughter presents ” was a subterfuge, conceived and resorted to by Clad for the purpose of avoiding the effect which they would have as payments of interest on the note which he knew would prevent the running of the statute of limitations. By this artifice, Clad desired to prevent a suit on the note within the time required by the statute of limitations, and thereafter he expected to defeat a recovery of the claim by the legal holder of the note by pleading the statute.

We think there was ample evidence to warrant the finding of the court below that interest was paid on the note within six years of the audit, and hence'the statute of limitations was not a bar to the appellee’s claim.

The decree is affirmed.