text:
    Thomas v. Harbison-Walker Refractories Company, Appellant.

      Lease — Rentals—Course of dealing — Notice.
    1. Where a lease of fire clay provides for a payment of ten cents per ton royalty on all clay taken from ten different tracts of land, all separately and particularly described in the lease, an assignee of the lessee cannot sustain a claim that he was liable for only seven and one-half cents per ton as to certain of the lands included in the lease, by proving a course of dealing between the original lessor and the former lessee as to the payment of such royalties, where there is no evidence whatever that the present owner, the successor in title to the former owner and original lessor, had any knowledge whatever of such a course of dealing.
    2. An understanding or course of dealing when set up in face of a written agreement otherwise providing, must be established by full, clear and satisfactory evidence even as between the parties alleged to have assented to such a course of dealing. As against a subsequent grantee, or assignee, without knowledge, a course of dealing between prior owners cannot be set up at all to affect the rights of the parties under the written instrument.
    3. Where a lease provides for a royalty of fifteen cents per ton and subsequently by an instrument in writing the royalty is reduced to seven and one-half cents per ton, and thereafter a new lease is executed covering the tracts mentioned in the old lease and including a number of new tracts all specifically described, at a royalty of ten cents per ton, and in the new lease there is no exception or reservation, and no mention of former leases or different royalties, and no ambiguity of language, the court will hold that the two prior leases were merged in the new lease.

      Interest — Tender—Royalties.
    4. Where a lessee tenders to the lessor a less amount of royalties than that claimed by the lessor and which so called tenders are by checks with vouchers, and the latter succeeds in establishing at law his right to the full amount claimed, he is entitled to interest on the whole amount of the royalties due.
    Argued Oct. 5, 1909.
    Appeal, No. 140, Oct. T., 1909, by-defendant, from judgment of C. P. Cambria Co., Dec. T., 1907, No. 376, for plaintiff on case tried by the court without a jury in suit of James P. Thomas, Trustee, v. Harbison-Walker Refractories Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover royalties under a lease. Before O’Con-nor, P. J.
    The case was tried by the court without a jury under the act of April 22, 1874.
    O’Connor, P. J., found the facts to be as follows:
    The plaintiff in this case claims a right to recover the amount sought by him from the defendant under and by virtue of the terms of a lease granted by George T. Bliss, of the city of New York, to Harbison & Walker Company (defendant’s predecessor in title), under date of October 31, 1899. By virtue of this lease the Harbison & Walker Company acquired the right for twenty-one years to mine fire clay on all of lessor’s property in Cambria and Blair counties, at a royalty of ten cents per ton.
    James P. Thomas as trustee has succeeded to all the rights •of the original lessor, and Harbison-Walker Refractories Company, above named as defendant, has succeeded to all of the rights of the Harbison & Walker Company.
    There is little by way of fact in dispute between the parties to this proceeding. The trial of the cause was submitted to the court without a jury under the provisions of the act of 1874.
    The plaintiff stands alone upon the agreement dated October 31, 1899, and the defendant seeks relief from payment of a certain portion of plaintiff’s claim by reason of a course of ■dealing between the original lessor and defendant’s predecessor in title.
    George T. Bliss on October 30, 1891, entered into a, lease with Harbison & Walker, a partnership, giving to said partnership the right to mine fire clay on part of certain properties of lessor situate in Cambria and Blair counties, Pennsylvania, for the period of twenty-one years, at the royalty of fifteen cents per ton. This agreement was immediately recorded in both counties.
    On October 2, 1894, the partnership, Harbison & Walker, assigned this lease to Harbison & Walker Company, a corporation. On August 3, 1897, George T. Bliss and the Harbison & Walker Company entered into an agreement which modified that of 1891, by reducing the royalty from fifteen cents per ton to seven and a half cents per ton. No other money consideration was named. This land, together with some 3,500 additional acres, is embraced and included in the description contained in the lease of October 31,1899, under and by virtue of the terms of which the plaintiff seeks to recover in this action.
    Notwithstanding the terms of the lease of October 31, 1899, the Harbison & Walker Company continued to pay .royalty upon fire clay mined from that portion of the land described in the lease of October 30, 1891, at the rate of seven and a half cents, per ton, and upon the remainder of the land embraced and included in the lease of October 31,1899, at the rate often cents per ton. Why this was done does not appear, and because of this course of dealing the defendant company asserts that plaintiff is estopped from recovering the remaining two and a half cents per ton royalty on fire clay mined from this particular tract of land.
    We have affirmed each and every of plaintiff’s requests for findings of fact, adopted them as findings of fact by the court, and therefore do not set out and number separate general findings of fact. .
    By deed dated May 31, 1901, Harbison & Walker Company assigned its right under the aforesaid leases to HarbisonWalker Company, who in turn transferred to defendant.
    On November 5, 1902, the executors and trustees of George T. Bliss conveyed all the property formerly belonging to said Bliss to the plaintiff, who at or before that time had made a payment upon account of the purchase money. The deed, together with assignments of the aforesaid leases, was delivered about November 11, 1902, and accepted by the plaintiff. Prior to this time the plaintiff had no knowledge of any course of dealing between his predecessor in title and the defendant company or its predecessor in title, except as provided for in the lease of October 31, 1899, which was recorded in Cambria county and which had been examined and passed upon by plaintiff at that time.
    Defendant admits plaintiff’s right to recover the amount of his claim if defendant’s position that it is not required to pajr royalty at the rate of more than seven and a half cents per ton for clay mined on the lands described in the lease of October 30, 1891, is not sustained; but submits that its contention must be sustained, for the reason it was in possession of said land and paying at the rate of seven and a half cents per ton royalty on the land mentioned and described in the lease of October 30, 1891, at and before plaintiff’s claim attached to the lands in question, and that plaintiff was thereby put upon his inquiry concerning the rights of defendant under its possession, which inquiry would have informed the plaintiff of the course of dealing between his predecessors in title and the defendant company at the time plaintiff acquired title.
    As a proposition of law, we believe and so decide that the agreement of October 30,1891, and its modification of August 3, 1897, were merged in the agreement of October 31, 1899, and by the terms of this agreement the defendant company is bound, unless relieved by reason of the course of dealing between it and its predecessor, Harbison & Walker Company, with the original lessor, or his representatives.
    There is no ambiguity in the above-stated lease dated October 31, 1899, and therefore the contention that the parties thereto had placed a certain construction on it by reason of their course of dealing is not tenable; nor are we convinced that this course of dealing could have been set up in defense of a claim for royalty under the agreement of October 31, 1899, except in so far as it related to royalties settled for at'the rate recognized by the course of dealing.
    There was nothing in the character of the possession manifested by the operations of the defendant company, and nothing in the evidence which would indicate to the plaintiff that defendant was not operating under the lease dated October 31, 1899; and there is nothing in the testimony tending to show any course of dealing between the defendant company, its predecessor in title and the grantors of the plaintiff, which would bring home to the plaintiff knowledge of any course of dealing other than that outlined and provided for in the said agreement of 1899. There is no evidence before the court which is calculated to even raise a suspicion in the mind of the plaintiff at the time he took title to this property and succeeded to all the rights of his grantor and assignor of the course of dealing relied upon by the defendant to relieve it from a portion of plaintiff's claim, and plaintiff has always refused to accept royalty at a less rate than that provided by the agreement of October 31, 1899.
    January 3, 1910:
    The court entered judgment for plaintiff for $13,375.25, with interest.

      Error assigned among others was the judgment of the court.

      Thomas H. Murray, with him J. E. MacCloskey, Jr., M. D. Kittell, Hazard Alex Murray and James P. O’Laughlin, for appellant.
    Having notice by the optional contract, by the deed, and the assignments delivered and accepted in pursuance of that contract, and by the fullest kind of possession, plaintiff was bound to inquire as to the rights of the lessees under these contracts: Epley v. Witherow, 7 Watts, 163; Jaques v. Weeks, 7 Watts, 261; Sergeant v. Ingersoll 7 Pa. 340; s. c., 15 Pa. 343; R. R. Co. v. Penna. Co., 222 Pa. 573, 585.
    The conduct of the parties have interpreted their rights: Lummis & Co. v. Devine, 9 Pa. Superior Ct. 349; Smith v. Hickman, 14 Pa. Superior Ct. 46; Kane v. Ins. Co., 199 Pa. 205, 207; Kaul v. Weed, 203 Pa. 586, 592; McKeever v. Coal Co., 219 Pa. 234, 236.

      H. 8. Endsley, with him J. G. Davies, for appellee.
   Opinion by

Mr. Justice Elkin,

This is a controversy between the assignee of the lessor and the assignee of the lessee involving the amount of royalty to be paid for fire clay mined and removed from certain tracts of land included in the indenture of lease.

In 1891 Bliss, the then owner of certain tracts of land involved in this suit, entered into an agreement of lease with a predecessor in title of appellant here granting the privilege of mining and removing the fire clay under the same for and in consideration of fifteen cents per gross ton to be paid the lessor. In 1897 the terms of the lease were modified by an instrument in writing so that the royalty was reduced from fifteen to seven and one-half cents per gross ton. In 1899, Bliss still being the owner of the land, executed a new lease to another predecessor in title of appellant, which lease included all of the tracts described in the original lease of 1891 as well as several other tracts not included in the former lease. This suit was brought to recover the amount of unpaid royalties upon the basis of ten cents per gross ton as stipulated in the lease of 1899. The appellee has succeeded to all the rights of the original lessor-and the appellant has succeeded to all the rights of the original lessee. If the lease of 1899 covers all the lands described therein and supersedes the former leases the right of the appellee to recover on the basis of ten cents per ton cannot be doubted. The fire clay was mined from these properties, and there is no dispute as to the number of tons removed. The lease in terms provides that the lessee shall have “the right and privilege to explore, convey, mine, dig and carry away all the fire clay in and upon those certain tracts of land” described therein. Ten different tracts, aggregating several thousand acres with the names of the respective warrantees, dates of the original surveys and the number of acres contained in each tract, are separately described in the lease. It is further provided therein that “the said parties of the second part covenant, promise and agree for themselves, their heirs and assigns, to pay said party of the first part the price or royalty of ten (10) cents per ton of twenty-two hundred and forty pounds for each and every ton of fire clay mined and used, or shipped from said land.” The right to mine the fire clay was to continue and be in force for a term of twenty-one years from the date of the agreement unless canceled in the manner therein provided. Here, then, is an agreement between the parties covering all the lands from which fire clay was taken and removed by appellant which in the most positive terms provides that the lessor shall receive in payment for the clay so mined and removed the sum of ten cents per ton. This certainly makes out a strong prima facie case for appellee and places upon appellant a heavy burden to overcome the express provisions of the covenants thus formally entered into. The attempt is made to meet this burden by setting up a course of dealing between the prior owner and the former lessee under which only seven and one-half cents per ton was paid for the fire clay, taken from the lands included in the lease of 1891, and ten cents per ton for all the clay taken from the lands described in the lease of 1899 but not included in the former lease. In other words, the contention of appellant is that the two leases ran together and are in force, so that royalties should be paid according to their respective terms. By agreement of the parties the case was tried in the court below without a jury under the act of 1874: In such cases the findings of the court have the force and effect of the verdict of a jury. The learned court below in passing upon the course of dealing between the former parties to the contract of lease found that, “There was nothing in the character of the possession manifested by the operations of the defendant company, and nothing in the evidence which would indicate to the plaintiff that defendant was not operating under the lease dated October 31, 1899; and there is nothing in the testimony tending to show any course of dealing between the defendant company, its predecessor in title and the grantors of the plaintiff, which would bring home to the plaintiff knowledge of any course of dealing other than that outlined and provided for in the said agreement of 1899. There is no evidence before the court which is calculated to even raise a suspicion in the mind of the plaintiff at the time he took title to this property and succeeded to all the rights of his grantor and assignor of the course of dealing relied upon by the defendant to relieve it from a portion of the plaintiff’s claim, and plaintiff has always refused to accept royalty at a less rate than that provided by the agreement of October 31, 1899.” Unless there is manifest error in these findings, the judgment must be affirmed. We have carefully examined the entire record here presented, but have not been convinced of any such manifest error as would justify a reversal. The twenty-seven assignments of error relate to the rulings of the court, the affirmance of certain points submitted, the admission of certain testimony, the manner of stating findings and the judgment entered. As we view the case, no useful purpose can be served by discussing the numerous questions raised by the assignments. If in point of fact the appellee had no knowledge or notice of a course of dealing between the prior lessor and lessee affecting the payment of royalties, he had the right to rely on the lease of 1899 and to insist upon payment according to its terms. Independently, however, of the question of fact as to the knowledge of appellee, the court was clearly right in holding that the lease of 1891 and its modification of 1897 were merged in the new lease of 1899. The language and covenants of this lease are not susceptible of any other reasonable interpretation. The new lease includes all of the lands covered by the former leases and adds several other tracts. The language is plain and unambiguous, and expresses the final understanding of the parties. There is no exception or reservation and no mention of former leases or different royalties. The presumption is that the parties meant what they said and intended to do what their written language imports, which was to pay for all the fire clay mined and removed at the rate of ten cents per ton. There is no ambiguity in the language used, and therefore nothing to explain by parol testimony. It may be conceded that notwithstanding the express covenants contained in the lease of 1899, the contracting parties might agree among themselves, or by a course- of dealing amounting to a common understanding and agreement, that the royalties under the lease of 1897, should continue to be paid as therein provided and all other royalties to be paid as required by the lease of 1899. But such an understanding or course of dealing when set up in face of' a written agreement otherwise providing must be established by full, clear and satisfactory evidence even as between the parties alleged to have assented to such a course of dealing. As against a subsequent grantee, or assignee, without knowledge, a course of dealing between prior owners cannot be set up at all to affect the rights of the parties under the written instrument. In the case at bar the learned court below has found that appellee had no knowledge of such a course of dealing and that he relied on the terms of the written agreement and always insisted upon payment according to those terms. The evidence was sufficient to warrant the finding, and we see no reason to disturb it. Nor was there any error in allowing interest on the installments due from time to time under the terms of the lease and not paid as therein provided. The voucher checks were not unqualified tenders of the amounts due under the terms of the lease, and the appellee was not precluded thereby from claiming interest.

Assignments of error overruled and judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Luther, Appellant, v. Luther.

      Equity — Findings of fact — Erroneous findings — Review by appellate court — Fraud—Equity—Trustee ex maleficio.

    1. Findings of fact by the lower court in an equity suit, if supported by testimony, will not be reversed because from that testimony the appellate court might have found differently, but when from it the findings must have been different, they must be set aside.
    2. On a bill in equity by a mother against a son praying for a decree adjudging that the defendant held title to real estate as trustee for plaintiff, the Supreme Court on appeal, reversing the judgment of the lower court, will grant the relief prayed for where it finds from the evidence that the son had procured through fraud, and deception practiced against his mother by himself, the execution and delivery to him of a deed for the property, the title to which she had the right to redeem from another, and which she had been struggling to redeem by small payments continued for several years.
    Argued Oct. 5, 1909.
    Appeal, No. 144, Oct. T., 1909, by • plaintiff, from decree of C. P. Cambria Co., Sept. T., 1906, No. 8, dismissing bill in equity in case of Louisa Luther v. Frank O. Luther.
    January 3, 1910:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity to declare a trust ex maleficio. Before O’Con-nor, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned amongst others was decree dismissing the bill.

      W. C. Fletcher, with him A. V. Barker, Mathiot Reade, E. H. Flick and W. I. Woodcock, for appellant.

      M. D. Kittell, with him Philip N. Shettig, for appellee.
   Opinion by

Mr. Justice Brown,

This controversy is between a mother and her son. Alleging that, through fraud and deception practiced by him upon her, he had procured the execution and delivery to him of a deed for property which for years she had been struggling to redeem, this bill was filed, asking for a decree adjudging that he holds the title as trustee for her. From his admissions in the answer and in his testimony, considered in connection with the evidence offered in support of the bill, the finding of the court that the appellee had not practiced artifice and fraud upon his mother in procuring her signature to the letter of December 5, 1902, is so clearly erroneous that it must be set aside and the relief prayed for granted. Findings of fact by a lower court, if supported by testimony, will not be reversed because from that testimony we might have found differently, but when from it the findings must have been different, they must be set aside. With this test applied to the evidence in the case before us, the material allegation of the fraud practiced upon the appellant must be sustained.

Chrysostom Luther, the husband of the appellant, was the owner of the farm in controversy, and on April 29, 1892, executed a mortgage upon it to the Standard Building & Loan Association to secure the payment of a loan of $3,400. In 1895, being unable to pay the dues to the association, he executed and delivered to it, in consideration of his indebtedness, a deed for the property. At the time this deed was made a lease was executed between the association and Luther, which was also signed by his wife, containing an option or right to repurchase the property at any time within three years from January 1, 1895, and providing for the payment as a rental during that period of interest upon the amount due the association. F. O. Luther became one of the sureties to the lessor for his father’s faithful performance of the covenants in the lease. The payments agreed upon were much in excess of the actual rental value of the property. Luther died in October, 1897, — a few months before the expiration of the option to repurchase. His widow, the appellant, continued in possession of the property, through her tenants, and continued making payments to the association on account of the debt and interest due, the option to redeem having been informally extended. In the year 1902 she made five payments. The income from the property amounted to very little, if any, more than enough to pay the taxes and keep the property in repair. The payments made by the appellant were from her own separate estate. They were made by her with the intention of redeeming the homestead, and were received by the association with full knowledge of such intention. She and her son, the appellee, lived in the country only about three miles apart, and he knew that she had been making payments for years to the association under the arrangement to redeem. He admits that she paid more than the sum of $800 for that purpose, while the testimony showed that her payments amounted to over $1,000. He never contributed anything towards the redemption of the property, although he knew the struggle she was making to repurchase it. Her other son, John, assisted her from time to time. Some time in November, 1902, the appellee began negotiations for the purchase of the farm, leaving the representative of the building association with whom he dealt under the impression that he was acting for his mother. On November 29, the solicitor wrote her a letter of which the following is a copy:

“Altoona, Pa., Nov. 29, 1902.

“Mrs. Chrysostom Luther, Carrollton, Pa.:

“My Dear Madam: Your son called on me last week to en-quire whether the Standard Building and Loan Association would sell you back the property now owned by it, formerly belonging to your husband, for the amount the association had in it. I brought the matter before the board of directors, and they authorized me to write to you, saying they were satisfied to sell you this property for the amount they had in it.

“The secretary informs me that he has sent to you or your son a statement showing how much the association had in the property, the amount being some $3700 or $3800.

“It will be necessary for you to advise us not later than the 6th of December, whether you intend to purchase at the price mentioned or not, as we have another purchaser in view, and if we do not sell to you by that date we will close out with him.

“Please let us hear from you at once whether or not you desire to avail yourself of the offer made by the association. If we do not hear from you by the 6th of December, we will conclude that you are unable to purchase the property at the terms mentioned, and will consider the sale to the other party. If you conclude to take the property, and need thirty days or more with which to close the deal out, it would be necessary for you to make a cash payment on the 6th of the month, so as to bind the bargain, and show your good faith in the matter.

“Let me hear from you promptly, and if possible before the sixth of December.

“Very respectfully,

“Geo. B. Bowers,

“Solicitor, ‘S. M. E.’ ”

The other party to whom the letter referred was a man named Hoppel. The appellee, though living near his mother and seeing her at times, said nothing at all to her about his attempt to purchase the property, and, when pressed for a reason for not telling her, admitted that he had testified in another proceeding that he had said nothing to her about it because he knew that if his uncle Edward — his mother’s legal adviser — and his brother John should learn of his contemplated purchase, they would “ cut him out.” The appellee knew that the letter of November 29 had been written to his mother by the association, giving her the privilege of purchasing the property within thirty days, but two days afterwards — on December 1 — he paid to the association $500 on account of a sale which he alleges was to be made to him in his own right. Three days later — on December 4 — he met his uncle, E. H. Flick, Esq., the legal adviser of his mother, who, upon learning from him that he was trying to purchase the property, said that he should not undertake to purchase it without the consent of his mother and brother, as the mother had been endeavoring for years to redeem it and had put considerable money in it. In reply to this he said he would see her, but instead of doing so on the next day he paid to the association the balance which his mother would have been required to pay for the redemption of the property. The association, however, refused to deliver a deed to him in view of its understanding with her that it would let her redeem the property, having given her the privilege of doing so at any time within thirty days from November 29, and, for its own protection, prepared and gave him a letter to be signed by her, of which the following is a copy:

“Altoona, Pa., December 5,1902.

“To the Standard Building and Loan Association:

“Gentlemen: My son has informed me that he has been negotiating for the purchase of the farm lately belonging to my husband, Chrysostom Luther, and which was conveyed to your association by deed from my husband and me.

“This will certify to you that I approve of the sale made by your association to him, and join with him in the request that you make the sale to him upon his paying the purchase price agreed upon in full.

“Respectfully yours.”

On the next day he called upon his mother, who had recently been seriously sick and broken an arm, and asked her to sign this letter, which she did, after he had practiced palpable fraud and deception upon her. In reply to her inquiry whether he had seen her brother, E. H. Flick, he replied that he had, but failed to tell her what his uncle had said. He further added, according to her testimony, that now he and his brother John were better friends than ever. These two brothers for years had been estranged, and the mother expressed gratification over their reconciliation. As a matter of fact the appellee had not seen John at all for some time before, and their relations continued unchanged. He further said to his mother that if he had been a day later, he would not have been able to get the farm, as the association would have sold it to Hoppel. This was untrue, for the association had given her the privilege of redeeming it up to December 28. On December 6, in compliance with the notice of November 29, the appellee’s brother made a tender of $50.00, but the same was refused in view of what had taken place between the association and the appellee.

Of the deception, which the learned court below ought to have found had been practiced by the son upon his mother, we need only repeat what we said of it once before, in Luther v. Luther, 216 Pa. 1: It “was of a negative character, but it was not, for that reason, less potential in inducing her to sign the letter. He knew she had been struggling to regain the property, with the assistance and under the advice of her brother, E. H. Flick, Esq., a member of the Blair county bar. When he presented the letter to her she asked him whether he had seen his Uncle Ed., to which, he admits, he replied that he had. He must have understood from her question that she wished to be assured that her brother knew all about the transaction and would approve her signing the letter, and he must have known that she would not have signed it without such approval. By his reply he must have intended to convey the very impression that was made upon her mind, that her brother knew what she was about to do, and sanctioned it. If he had told her just what had occurred between him and his uncle, according to the latter’s testimony, it is not to be doubted that she would not have signed the paper; and so of what was said by him about his brother John, which was intended to convey the impression that he, the only other person interested in the farm, was satisfied. On the cross-examination of the appellant, after his admission that he had never said anything to his mother about his intention to buy the property, though living near her, he gave the following reason for not having done so: ' I knew it wouldn’t get cold until Uncle Ed. and John would know about it, and they would try to cut me out.’ Knowing that they both would oppose his acquisition of the property, and that his mother would not consent to it without the advice of her brother, he artfully led her to believe that what he asked her to do had the sanction of his uncle. With much force she said in her testimony that, while he had not said anything dishonest to her that day, ‘ He did it; he said he saw his Uncle Ed., and that he and John were better friends than ever.’ By not telling the whole truth and withholding from her what she most desired to know, the artifice and deception were practiced upon her.”

We have discovered nothing in the evidence done or said by the appellant which would estop her from challenging the right of the appellee to hold the property as his own. The court has found that she is of a highly nervous temperament, and remarks attributed to her, but denied by her, are not to be given the effect placed upon them by the court below in holding that she was entirely satisfied that her son had purchased the property.

The twenty-six assignments of error need not be separately considered and disposed of. It is sufficient to say that- the 3d, 4th, 7th, 25th and 26th are sustained. The decree is reversed, the bill is reinstated, and it is now ordered, adjudged and decreed that F. O. Luther, the appellee, be enjoined and restrained from transferring or incumbering the property described in the bill, and it is further ordered, adjudged and decreed that he holds title to the same as trustee for the appellant, the costs of this appeal and below to be paid by him.


author: Mr. Justice Stewart,

text:
    Crum v. Pennsylvania Railroad Company, Appellant.

      Practice, C. P. — Pleading—Amendment of statement — Evidence.
    1. Where a plaintiff is permitted to amend his statement and no objection or exception is taken thereto, and the defendant subsequently pleads to the amended statement, the defendant cannot after-wards at the trial of the cause object to the admission of testimony on the ground that the amended statement was invalid because the only purpose of the amendment was to change dates after the statute of limitation had interposed.

      Deed — Construction—Railroad—Waters.
    2. Where a railroad company purchases a narrow strip of land to be used for the bed of a stream which it proposes to divert from its natural course, and the vendor in his deed releases the company from damages “by reason of the taking and occupying of the lot or piece of land above described, .... or by reason of the change of the course ” of the stream, the court will construe the release so as not to cover injuries to the vendor’s remaining lands by changes made by the company wholly upon the lands of others, and unrelated to the changes made on the vendor’s lands so far as concerns consequences to him.
    Argued Oct. 5, 1909.
    Appeal, No. 166, Oct. T., 1909, by defendant, from judgment of C. P. Cambria Co., June T., 1907, No. 169, on verdict for plaintiff in case of Charles Crum, Executor of Sylvester Crum, deceased, v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before O’Connor, P. J.
    The facts appear by the opinion of the Supreme Court.
    At the trial when Charles Crum was on the stand he was asked this question:
    Mr. Davis: “Q. When did the change take place in that dam and race? ”
    Mr. Storey: Defendant’s counsel object to any testimony from the witness or from the plaintiff which is included within the amendments made by him in this case as being incompetent, in so far as the claim is set forth: in other words, that the statement avers the new channel was made in 1898 and that the amendment is invalid inasmuch as it is only to change the dates so as to bring it within the statute of limitations, and that such amendments cannot be made where the statute interposes.
    The Court: The objection is overruled, an exception noted and bill sealed for the defendant company. [1]
    Defendant presented these points:
    1. Inasmuch as plaintiff is suing for an unlawful trespass, in turning the water into the new channel, about May, 1898, whereby the cause of action then accrued, and having neglected to bring his action until April 3, 1907, the statute of limitation bars a recovery. Answer: Denied. [2]
    2. Inasmuch as the amended statement is for the same cause of action, excepting the attempt to change the date to bring it within the statutory period it is invalid and plaintiff cannot recover. Answer: Denied. [3]
    3. That the deed of release executed and delivered by Sylvester Crum, to the defendant company, on December 11,1901, wherein he for himself, his heirs, executors, administrators and assigns, did release and discharge the defendant company from all claims, demands, payments of money and right to compensation for or on account of any and all damages, by reason of the change of the course in the Little Conemaugh river, is a bar to this action, and the verdict should be for the defendant company. Answer: Denied. [4]
    6. Under all the evidence in the case the verdict should be for the defendant. Answer: Denied. [5]
    Verdict for plaintiff for $7,500, upon which judgment was entered for $5,000, all above that sum having been remitted. Defendant appealed.

      Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.

      H. W. Storey, with him John W. Kephart, for appellant.—
    Where the owners of land for a valuable consideration, released a railroad company from all suits, claims, demands and damages by reason of its entry, and the location and construction thereon of its railroad and works connected therewith, such release is a bar to an action by a subsequent lessee of said owners brought to recover damages for injuries caused by an insufficient culvert constructed prior to the execution of the release: Hoffeditz v. South Penna. Ry., etc., Co., 129 Pa. 264.
    January 3, 1910:

      Harvey Roland, with him Wm. Davis, for appellee.
   Opinion by

Mr. Justice Stewart,

Samuel Crum, whose executor has been substituted as plaintiff in this action, was the owner of a tract of land on which he maintained a gristmill, with dam and race appurtenant fed from the water of the Conemaugh river. At a point something more than 1,000 feet east of plaintiff’s line, the defendant company in straightening and otherwise improving its tracks, found it necessary to change the channel of the river for a considerable distance. This work was done wholly outside the lines of the plaintiff’s lands. The plaintiff complains, however, that as a result of the change, both because of the manner in which the new channel was constructed and the character of the land through which it was dug, large quantities of sand and waste material have been carried by the current of the stream from the bottom and sides of the new channel into his milldam and race, to an extent which has practically destroyed both for the purposes they were intended. The action was brought April 3, 1907, for the recovery of damages for the injury complained of. In the statement filed it was averred that the change in the channel of the river was made in 1898, and the claim was expressly stated to be for injuries of a permanent character which have resulted in great depreciation in value of plaintiff’s property. While the statement attributed the injury to the change of the channel, it was silent as to when the deposits in the dam and race were first made. The court allowed an amended statement to be filed in which it was averred that they began in May and June, 1901, and continued thereafter until the bringing of the suit. The amendment was made without objection; the defendant pleaded surprise, and when the case was again called defendant had pleaded specially that plaintiff’s light of action had accrued more than six years before suit brought. On the trial the testimony of plaintiff’s witnesses supported the averment in the amended statement, that the injury began in the summer of 1901, and continued to increase thereafter. This testimony was objected to on the ground that the amended statement was “invalid, inasmuch as it is only to change the dates so as to bring it within the statute of limitations, and that such amendments cannot be made when the statute interposes.” The admission of this testimony is assigned as error. The objection, as will be seen, goes to the sufficiency of the amendment. Had the defendant excepted to the order of the court allowing the amended statement to be filed, and assigned the action of the court in this regard as error, it would then have been in position to have challenged the correctness of the court’s' action. We say nothing as to the chances of success in any such contention had it been made, for that matter is not before us. It is enough to know that the amendment was made without objection; that the testimony objected to was directly in support of its averments, and that its admission was free from error so far as the pleadings in the case were involved.

At a point little less than a mile west from the new channel of which we have been speaking, and below the point where plaintiff’s dam and race had derived their water supply from the Conemaugh, along the southern boundary of defendant’s lands, the defendant company made further improvements in its tracks, and there, too, found it necessary to change the channel of the river, throwing it further north of the tracks and further in upon plaintiff’s lands over which it flowed. To this end it purchased from the plaintiff a narrow strip of land along its right of way containing between three and four acres. The conveyance was made December 11, 1901, and contains this provision, “And the said Sylvester Crum, for himself, his heirs, executors, administrators and assigns, doth hereby release and discharge the said party of the second part, its successors and assigns from all claims, demands, payments of money and rights of compensation, for or on account of any and all damages by reason of the taking and occupying of the lot or piece of land above described, or by reason of the location and construction of a railroad, tracks, sidings or appurtenances upon or over the same, or any part thereof, or by reason of the change of the course of the Little Conemaugh river.” On the trial of the case this deed was introduced by the defendant for the purpose of showing a settlement and release of the damages claimed in the present action. The learned trial judge construed the release to include such damages only as resulted to plaintiff’s land in consequence of the change in the channel through and along the lands conveyed. A study of the situation as disclosed by the maps submitted on either side leaves us in no doubt whatever as to what is intended by the release. It is quite apparent that the change in the channel of the river on the land conveyed to the defendant company by this deed, could not have caused the injury complained of or contributed to it in the remotest way. The dam and race were at the extreme northeast corner of plaintiff’s tract, and it was at that point that the current of the river carried over upon plaintiff’s land the waste material from the sides and bottom of the new channel, which was 1,000 feet to the east, higher up the stream and wholly upon lands of others. The land which plaintiff sold to the defendant company by the deed containing the release of damages, is a narrow strip along the southern boundary of the tract, far below the dam and race, and along defendant company’s right of way. No change at this point in the bed of the stream could have caused the injury complained of, except as the flow of the water was reversed. Nothing can be clearer than that the defendant company in acquiring this narrow strip of land, had in view a change of the channel of the river at that point, and intended this land for the new channel. It afterward so employed it. For whatever injury resulted to any part of the tract remaining in the plaintiff after this conveyance, because of the change of the river’s channel at this point, the release contained in the deed would be a sufficient discharge; but by what principle of construction can the release be made to operate as well upon damages traceable to a source entirely distinct and independent, and occasioned wholly by a change of channel on the land which had not belonged to the plaintiff? The language of the release forbids any such construction as this. What it releases in terms is damages occasioned “by reason of the change of the course of the Little Conemaugh,” that is to say, the one change for which the defendant company was maldng provision in purchasing the plaintiff's land. It would be an arbitrary and enforced construction that would extend the meaning of these words so as to include other changes made in the bed of the river, even though upon the land of the plaintiff; still more unreasonable would it be to make them cover changes made wholly upon the lands of others, and unrelated to those made on plaintiff’s lands so far as concerns consequences to the plaintiff. It is a settled rule of construction that an agreement comprehends only those things in respect to which it appears the contracting parties proposed to contract, and not others they never thought of. Evidently what the parties to this release were contracting about, was the damage that might result by reason of the defendant company employing the land conveyed to it for the bed of the stream. So much is apparent from the transaction itself, and the release cannot be allowed to embrace anything beyond it.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Irwin v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Car inspection.

    1. In an action against a railroad company to recover damages for the death of a locomotive engineer, the case is for the jury where the evidence tends to show that the accident was the result of the derailment of a car caused by a broken flange; that the break in the flange was an old one and existed when the car was received at the defendant’s yard, which was the place for regular inspection; that the break would have been discovered if a proper inspection had been made; and that if any inspection was made, it was made by an inexperienced and inadequately instructed employee who failed to make the usual tests.

      Negligence — Damages—Death—Charge of court.

    2. In an action by a wife to recover damages' for the negligent killing of her husband, the measure of damages is not the amount of the probable earnings of the deceased that would have gone to the support of his family, but the present value thereof.
    3. Where in such a case the trial judge makes a correct statement of the rule, although perhaps not so clear and explicit as to insure its full understanding by the jury, counsel should ask at the time for fuller and plainer instructions, and if they fail to do so they have no standing on appeal to ask for a reversal of the judgment;
    Argued Oct. 5, 1909.
    Appeal, No. 176, Oct. T., 1909, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1908, No. 153, on verdict for plaintiff in case of Catherine A. Irwin v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    During the course of his charge the trial judge used the following language:
    [What you will award this plaintiff if you award her anything is the amount that the deceased would ordinarily have paid for the support and maintenance of his wife and minor children during the balance of his life.] [1]
    [You first award this plaintiff what in your judgment Morgan Irwin would have given his wife and minor children for their support if he had lived.] [2]
    Verdict and judgment for plaintiff for $12,600. Defendant appealed.

      Errors assigned among others were (1, 2) above instructions quoting them; (4) in refusing binding instructions for defendant.

      January 3, 1910:

      On Buffington, with him Oliver W. Gilpin, for appellant.

      C. E. Harrington, with him D. M. Geist, for appellee.
   Opinion by

Mr. Justice Fell,

The plaintiff’s husband was an engineer on the defendant’s road and was killed in an accident caused by the derailment of a freight car and its projection on the track on which his engine was running. The derailment of the car was caused by a broken flange of one of its wheels, and there was testimony tending to show that the break in the flange was an old one and existed when the car was received at the defendant’s yard, which was a place for regular inspection; that the break would have been discovered if a proper inspection had been made; that if any inspection was made, it was made by an inexperienced and inadequately instructed employee who failed to make the usual tests. This testimony made out a prima facie case which could not have been withdrawn from the jury, and we find no error in its submission that requires a reversal of the judgment.

The only assignments of error that need be noticed are the first and second. The parts of the charge included in these assignments, standing alone, are open to the objection urged against them, because the measure of damages in such a case is not the amount of the probable earnings of the deceased that would have gone to the support of his family, but the present value thereof. But these excerpts from the charge do not fully set out what was said by the court on the subject. In immediate connection with them it was said that the verdict “if for the plaintiff will be given for a lump sum, and it would draw interest from the date of the verdict. If Mr. Irwin had lived, his earnings would have been monthly and not as a lump sum, so that the jury can take into consideration in arriving at your verdict, if for the plaintiff, it will be for a net sum, which would draw interest from the time the verdict is rendered.” This was a correct statement of the rule, although perhaps not so clear and explicit as desirable to insure its full understanding by the jury. It was, however, satisfactory to counsel at the time, and if fuller and plainer instructions were desired, they should have been asked for.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Patchin, Appellant, v. Seward Coal Company.

      Lunacy — Sale of lunatic’s land — Order of sale — Notice to next of kin— Jurisdiction of court — Ejectment.
    1. In an action of ejectment by the heirs of a lunatic to recover land sold by the committee of the lunatic under an order of court in the lunatic’s lifetime, parol evidence is inadmissible to show that no notice had been given to the wife or the next of kin- of the lunatic of the intended application to secure an order of sale, where the record shows that such notice had been given.
    2. ’Where an order of court directs the committee of a lunatic to sell lands within the county, and also authorizes the committee to apply for an order of court in another county to sell lands therein situated, it must affirmatively appear from the record of the court making the original order that the widow and heirs at law of the lunatic were served with notice of the proceedings. Notice of the proceedings in the other county alone, is insufficient.
    3. In a proceeding to secure an order of court authorizing the committee of a lunatic to sell land, the facts set out in the petition determine the jurisdiction of the court.
    Argued Oct. 6, 1909.
    Appeal, No. 83, Oct. T., 1909, by plaintiffs, from judgment of C. P. Westmoreland Co., Nov. T., 1906, No. 548, on verdict for defendants in case of Edward Patchin et al. v. Seward Coal Company, et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in St. Clair township. Before McConnell, J.
    At the trial it appeared that the land in dispute had been sold by A. D. Bates, committee in lunacy of George Patchin, in the latter’s lifetime to the predecessor in title of the defendant. George Patchin resided in Clearfield county, and his committee secured an order of court, directing the sale of land in Clearfield county, and also authorizing an application to the court of Westmoreland county for an order to sell the lands in controversy. The records both of Clearfield and Westmoreland county showed on their face service of notice of the proceedings on the widow and next of kin.
    The court under objection and exception admitted these records. [1, 2]
    When Mollie Patchin was on the stand the following offer was made:
    Mr. Robbins: It is proposed to ask the witness on the stand, Miss Mollie Patchin, who is a daughter of George E. Patchin, deceased, and one of his heirs and next of kin, with regard to the alleged notice attached to the proceedings at No. 252 of December Term, 1897, in the court of common pleas of Clear-field county, which has been offered in evidence by the defendants, whether or not such notice was presented to her and when, and whether or not the several names signed thereto were signed by the proper persons, or how they were signed, and also to inquire whether she was present when the alleged notice was signed, and who signed it — for the purpose of showing that the alleged notice is not such notice as required by the act of 1836 to be given by a committee of a lunatic prior to an application for sale of real estate in order to give the court jurisdiction; and that the signatures to said notice are not genuine; that the same is not signed by the parties purporting to have signed the same: and also for the purpose of rebutting any presumption that might arise upon the face of the paper itself.
    Mr. Moorhead: To this offer counsel for defendants object, for the reason that there is nothing in the pleadings in this case to show that any question such as is offered now to be proved with regard to the signatures not being genuine, was heretofore raised; and, second, that the proof itself would be immaterial and irrelevant so far as a purchaser under said proceedings would be concerned, or the present defendants holding under such purchaser.
    3. The witness now offered was one of the children of George Patchin who is admitted by the pleadings to have been of full age at the time said notice was given.
    4. The other purpose in the offer, to show that it was not such a notice as the law requires, is not one about which the witness can testify.
    Mr. Robbins: We add to the offer: to be followed by evidence that Edward Patchin, H. C. Patchin and Frank Patchin did not sign the alleged notice attached to the pleadings heretofore offered in evidence by the defendants; that they never heard of the same or saw the same until they appeared here at Greensburg in connection with the trial of this case two days ago, nor did they authorize any person else to sign said notice for them or approve of any person’s action in connection therewith.
    Mr. Moorhead: The same objection.
    The Court: The proofs that are now offered are substantially an attack upon the record in the common pleas of Clearfield county on the ground of fraud, and no basis for an attack on that ground having been made in their pleadings, the first objection made to the admissibility of the evidence is sustained. An exception may be noted in favor of the plaintiffs. [3, 4]
    Verdict and judgment for defendants. Plaintiffs appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions, and (10) in giving binding instructions for defendants.

      John E. Kunkle and A. L-. Cole, with them Edward E. Bobbins, for appellants.
    The court of Clearfield county had no jurisdiction to make the order: Spencer v. Jennings, 123 Pa. 184; Mitchell v. Spaulding, 206 Pa. 220; Bennett v. Hayden, 145 Pa. 586.
    The rule that the record imports absolute verity which may not be impeached by parole does not apply where fraud is charged, and the fraud need not appear on the face of the record itself. It is sufficient that by giving effect to the record, fraud would result: Mitchell v. Kintzer, 5 Pa. 216; Kintzer v. Mitchell, 8 Pa. 64; Lowry v. McMillan, 8 Pa. 157; Thorne v. Ins. Co., 80 Pa. 15; Hemphill v. Pry, 183 Pa. 593; Smith v. Wildman, 178 Pa. 245.
    January 3, 1910:
    An unauthorized decree of an orphans’ court for the sale of land will not stand until reversed in a regular court of appeals, but may be questioned in a collateral suit by or against a person claiming under that decree: Messinger v. Kintner, 4 Binn. 97; Snyder v. Snyder, 6 Binn, 483; Sager v. Mead, 164 Pa. 125.

      Wm. Williams, with him Jas. S. Moorhead, Robt. W. Smith and W. David Lloyd, for appellees.
    The facts set out in the petition determine the jurisdiction: Bennett v. Hayden, 145 Pa. 586.
    The court of common pleas of Westmoreland county was bound to give full faith and credit to the decree and order of the court of common pleas of Clearfield county.
    The judgment of every court pronounced on a subject within its jurisdiction is conclusive and binding on all other courts, except those only before which it comes by appeal, certiorari or writ of error: McDonald v. Simcox, 98 Pa. 619; Sweeney v. Girolo, 154 Pa. 609; Clayton’s Est., 1 Chester Co. Rep. 21.
    A sale of real estate by order of the orphans’ court can only be invalidated by establishing a want of jurisdiction of the court, or by fraud practiced in effecting it: Gallaher v. Collins, 7 Watts, 552; Leedom v. Lombaert, 80 Pa. 381; Haines v. Hall, 209 Pa. 104; Sheets v. Hawk, 14 S. & R. 173; McDonald v. Simcox, 98 Pa. 619.
   Opinion by

Mr. Justice Potter,

This was an action of ejectment for the recovery of 106 acres of land in St. Clair township, Westmoreland county, brought by Edwin Patchin and others, who were heirs at law of George Patchin, deceased, against the Seward Coal Company. Upon the trial a verdict for the defendants was directed, and afterwards a motion for judgment non obstante veredicto was refused, and judgment was entered upon the verdict.

It appears that on November 26, 1897, George Patchin, a resident of Clearfield county, was declared a lunatic by an inquest held in that county. His son, Edwin Patchin, was appointed his committee, but subsequently resigned, and on January 5, 1900, A. D. Bates was appointed committee in his place. The lunatic owned real estate in Clearfield, Indiana and Westmoreland counties, the latter being the land which is the subject of the present suit in ejectment.

On February 23, 1900, A. D. Bates, committee of the lunatic, presented a petition to the court of common pleas of Clearfield county, praying for an order to sell the real estate of the lunatic in Indiana and Westmoreland counties for the payment of his debts and the maintenance and support of himself and his family. An order was made, authorizing and directing the committee to make application to the court of common pleas of Westmoreland county for the sale of the real estate located in its jurisdiction. On March 1,1900, the committee presented a petition to the Westmoreland county court, setting forth the proceedings in Clearfield county and praying for an order to sell the real estate of the lunatic in Westmoreland county. The order was granted and the real estate, being the same land the title to which is in question in the present suit, was sold .by the committee, and the sale was duly confirmed and deed made to the purchaser. The title of the purchaser has, by subsequent conveyances, now become vested in the Seward Coal Company, the defendant and appellee.

On October 19,1904, George Patchin died intestate, and the present suit was brought by his heirs at law, to recover possession of the land thus sold and conveyed by his committee. The plaintiffs alleged that the proceedings in Clearfield county were defective and not in compliance with the requirements of the statute. That the court was without jurisdiction because the next of kin were not all notified; that the record did not show the appointment of a guardian ad litem for certain minors. And further, that if the court of Clearfield county did not have jurisdiction to make its order, the court of Westmoreland county acquired no jurisdiction. Plaintiffs maintained that these defects were fatal to the validity of the sale, and that no title passed thereby, and that George Patchin at the time of his death was still the owner of the land.

The crucial point in this case, as contended by counsel for appellants, is whether the court of common pleas of Clearfield county had jurisdiction to make the order authorizing the committee of the lunatic to raise the sum of money required. The existence of the jurisdictional facts must be determined by an inspection of the record. “It is settled law that the facts set out in the petition determine the jurisdiction of the court:” Bennett v. Hayden, 145 Pa. 586. The petition to the Clearfield county court stated that the lunatic had a wife, Agnes Patchin, and nine children, four of whom were minors, and that these were all of the next of kin of said lunatic capable of inheriting his estate. It further set forth as a fact that by the acceptance of service and joinder in the said petition of the wife, and all of the children of said George Patchin except one, they had due notice of the application. It again called attention to the fact that four of the children were minors, and had no guardian, and prayed that a guardian ad litem be appointed at once by the court for these minor children. To this petition was also attached what purported to be the actual acceptance of service by the wife and all the children expept the oldest son, of notice of the application to be made by the committee for the sale of real estate of the said George Patchin. There was also a return that notice of the application had been served on Edwin Patchin, the oldest son of the lunatic, by leaving a true and attested copy thereof with his wife. It further appeared from the petition that this son, Edwin Patchin, had in the first instance been appointed a committee of the person and estate of the said lunatic, but had done nothing to protect the interests of the estate, and thereafter had been superseded as committee by the appointment of the petitioner, A. D. Bates. From this and from other averments appearing in the petition, it is very apparent that the said Edwin Patchin must have been, from the circumstances of the case, and aside from the actual notice given, fully aware of the necessity for the application by the committee for leave to make sale of the said real estate, and of the proceedings in connection therewith. It appears also from the record that in the Westmoreland county petition, it was averred “that ten days’ notice of this application was given to Agnes Patchin, wife of said lunatic, and to all of his children who were next of- kin.” There was an affidavit of the committee to the same effect, which averred'in addition that the notice was given to the next of kin “personally.” In this petition it was also averred that Allison O. Smith had been appointed by the Clearfield county court guardian ad litem of the minor children of George Patchin. From all this we are abundantly satisfied that it does appear that due notice of the intended application for the sale of the real estate was given to the wife and next of kin of the lunatic, capable of inheriting the estate, and that the contention upon the part of the appellants cannot be sustained, that the Clearfield county court was without jurisdiction by reason of the lack of this essential notice. The record does disclose certain irregularities in the proceedings which should have been corrected, or which would have justified the court in setting them aside, had they been brought to its attention in that case, but such defects cannot be raised here in this collateral proceeding. We do not go to the extent of holding as the trial judge apparently did, that without regard to the proceedings in Clearfield county, it was sufficient if it appeared that in some way the wife and next of kin had due notice of the application for the final order of sale made in the Westmoreland county court. We think that under the provisions of the statute the fact that due notice of the intended application had been given to the wife and the next of kin should appear to the court of common pleas having jurisdiction of the accounts of the committee, before it can be called upon to act. Certainly this is true where the real estate is in the same county; and where it is in another county, the sam.e court is to be satisfied of the expediency of a sale-or mortgage of the real estate not within its jurisdiction before it can lawfully authorize the committee to raise the money. Doubtless it is good practice to see that due notice to the wife and next of kin, as required by sec. 24 of the Act of June 13, 1836, P. L. 589, is given of the intended application in both courts. As an examination of the record shows no lack of jurisdictional facts, it follows that parol evidence could not properly have been admitted to impair the effect of the record. The truth of the record, as to matters within the jurisdiction of the court, cannot properly be questioned here. Whatever irregularities existed should have been corrected in the case itself in which they occurred; they are not to be taken up or considered at this time, in a collateral proceeding. We see no merit in any of the assignments of error, and they are therefore dismissed, and the judgment is affirmed.


text:
    Spritzer v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Personal injuries — Release—Evidence—Parol evidence to contradict writing — Province of court and jury.

    1. When in a common-law action the attempt is not to alter or contradict some of the terms of a written instrument, but to overcome it wholly and set it aside, the testimony of a single witness covering the point in controversy, no matter that it be contradicted by many opposing witnesses, requires a submission of the question of fact so raised to the jury.
    2. In an action against a railroad company to recover damages for personal injuries where the defendant sets up a written release signed by the plaintiff shortly after the accident, the burden is on the plaintiff to show conditions which would avoid the release in law, and his testimony alone, although contradicted, requires a submission of the question of fact so raised to the jury.; but where his own testimony shows that he executed the release without any fraud or misrepresentations on the part of the defendant's agents, and that his mental condition at the time was such that he was capable of comprehending and understanding his act and its nature with probable consequences, and there is no other evidence to show that at the time he signed the paper he was “not in condition to know what he was doing,” the case should not be submitted to the jury.
    3. Nothing short of evidence precise, clear and indubitable can be allowed to overcome a written instrument. When it does not come up to this measure the case should be withdrawn from the jury.
    Argued Oct. 6, 1909.
    Appeal, No. 21, Oct. T., 1909, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1906, No. 239, on verdict for plaintiff in case of Henry Spritzer v. The Pennsylvania Railroad Company.
    January 3, 1910:
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Kooser, P. J.
    The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      H. W. Storey, for appellant,
    cited: Van Voorhis v. Rea, 153 Pa. 19; Dickson v. Mfg. Co., 179 Pa. 343; Orwig’s Est., 16 York, 149; Bierer’s App., 92 Pa. 265; Walt v. Kulp, 9 Montg. 45.

      W. H. Ruppel, with him George B. Somerville, for appellee,
    cited: Naglee’s Est., 10 Pa. C. C. Rep. 525; Davidson v. Little, 22 Pa. 245; Arthurs v. Bridgewater Gas Co., 171 Pa. 532; McGill v. Rowand, 3 Pa. 451; Porter v. Hildebrand, 14 Pa. 129; New York Central, etc., R. R. Co. v. Fraloff, 100 U. S. 24; Albert v. Ziegler, 29 Pa. 50; Kidder v. Kidder, 33 Pa. 269; Brooks v. First Presby. Church, 128 Pa. 408; Bartholomew v. Kemmerer, 211 Pa. 277; Cromley v. R. R. Co., 211 Pa. 429; Kitler v. St. Ry. Co., 27 Pa. Superior Ct. 602; Moore v. Philadelphia Bank, 5 S. & R. 41; Com. v. Williams, 2 Ashmead, 69; Reisch v. Furst, 27 Pa. C. C. Rep. 40; Bleakley v. Adelman, 31 Pa. C. C. Rep. 159.
   Opinion by

Mr. Justice Stewart,

In bar of the plaintiff’s action, which was for the recovery of damages for personal injury and loss of personal property sustained in the wreck of a train of cars in which he was a passenger, the defendant pleaded a formal release executed and delivered by plaintiff before the bringing of the suit. The release was as follows:

“ 1905, May 11. For the amount and for the account stated in the following release: Know all men by these presents, That I, H. Spritzer, in consideration of the sum of Two Hundred Dollars (200) to me paid by the Pennsylvania Railroad Company, the receipt whereof is hereby acknowledged do hereby release and forever discharge the said company from all liability to me for or on account of all losses, damages, personal injuries and all losses which I have sustained on account of the accident which occurred to train 10 near Harrisburg May 11, 1905, on which I was a passenger, and by which I sustained personal injuries and losses. Witness my hand and seal the eleventh day of May, 1905.

“H. Spritzer (seal)

“Witness present:

“Samuel W. Ihling.

“ Received May 11, 1905, of the treasurer of the Pennsylvania Railroad Company Two Hundred Dollars in full of the above amount. $200.”

The genuineness of the instrument was admitted; but it was sought to avoid it on the ground that at the time it was executed plaintiff was “not in condition to know what he was doing.” So reads the plaintiff’s replication. The case went to the jury on this and other issues, and resulted in a verdict for the plaintiff. The submission of the question as to the integrity and sufficiency of the release is made the subject of the first assignment of error. Was the evidence on this branch ■of the case sufficient to carry it to the jury? A careful review of the testimony has convinced us that it was not. Starting with the presumption in favor of the release, the burden was on the plaintiff to show conditions which would avoid it in law. This burden he undertook to discharge wholly and exclusively by his own testimony. Not another witness was called in his behalf who testified to a single fact or circumstance in connection with the giving the release, or to any fact or circumstance occurring within twelve hours thereafter, or to the plaintiff’s condition at any time during this period, notwithstanding, according to his own testimony,' the release was executed in a public place where he was surrounded by many bystanders, and notwithstanding the further fact that within an hour or so thereafter unassisted he started on his journey home, distant more than 100 miles from the place of accident, in a passenger coach where so far as shown he was undistinguishable from the ordinary passenger. We remark upon this not as a circumstance to be considered in determining whether the question was one for the jury; for where in a common-law action the attempt is not to alter or contradict some of the terms of a written instrument, but to overcome it wholly and set it aside, the testimony of a single witness covering the point in controversy, no matter that it be contradicted by many opposing witnesses, requires a submission of the question of fact so raised to the jury: Gibson v. Western New York, etc., R. R. Co., 164 Pa. 142. We remark upon it simply to show the narrow limits within which our present investigation of the evidence is to be confined. The accident occurred between one and two o’clock on the morning of May 11, 1905, near the city of Harrisburg. The plaintiff testified that he was thrown from the car in which he was a passenger, by something like an explosion not otherwise described or accounted for; and that while lying some ten or fifteen feet from the track he was picked up by some persons and carried in an unconscious condition to the hospital where the injured had been assembled, and there placed upon a cot or stretcher. His examination in chief as to the occurrence proceeded in this wise: Q. What became of you after they picked you up? A. I couldn’t know what became of me. When I was in the hospital and opened my eyes, it was about three or four o’clock. I saw a whole lot of people, maybe 100 people lying on the floor, some on stretchers and on benches and all kinds of shutters and on the floor, ladies and children and gentlemen. Q. In the hospital? A. In the hospital, in the front room of the hospital. Q. What then occurred to you when you found yourself lying on the stretcher on the floor of the hospital? A. When I opened my eyes in the hospital — I believe I was in the hospital in a kind of a stupor for an hour or two, and I don’t know how long I lay on that stretcher on the floor. It was dark, about one o’clock. When I opened my eyes in the hospital it was about three or four o’clock. Q. That morning? A. Yes, sir, the same morning that the wreck was, and I began to feel a very terrible pain ih my shoulder and was very cold because I was naked; my underclothes was in pieces. Q. What clothes had you on? A. I had on just an undershirt and a pair of trousers, and they were torn in pieces. Q. Then what happened to you? A. Some of the people from the hospital, I couldn’t know who they’were came to me. Q. What did you do? A. I laid on that stretcher on the floor until a man came and asked me, told me to wait a little while, they were too busy with the ladies and children. All the wards were full of people. He said they would take me to a bed, they would take other rooms in the neighborhood, as the hospital rooms were all full. Q. What did you say then, or what did you do? A. I said, ‘ No, I couldn’t do it.’ I told him they shall give me clothes and a ticket, that I was willing to go home, before I am dead. Q. Now, Mr. Spritzer, what did you do then? A. That man said, ‘Wait a minute.’ They called another man to me, I believe, and the other man said ‘Where do you live?’ I told him at Windber. He said ‘Do you want to go home?' and I said ‘ Yes, I want to go home; I wouldn’t scare my family. I want to get home when I can.’ He said, ‘All right, I will fix you up.’ In a few minutes that man and another man came with a pile of secondhand clothing in his hand, and some receipt book, some paper, something like a receipt book. He said ‘Write your name here and I will fix you up and you can go home. I will give you the clothes.’ And two of them people took me, one held me by the hand and the other dressed me, gave me about 44 coat, a very big one; my size is a 34. They gave me a big straw hat, and a pair of shoes, but no stockings, some of them fellows took me outside and put me in a buggy, and they brought me, I suppose, to the Pennsylvania Railroad station, and they sat me in the car, and they sat down with me in the car.” We have here thus given all that was testified to by the plaintiff in his examination in chief touching his condition and the giving of the release. Something more was developed on his cross-examination. It proceeded: “Q. You say some person came to you while you were in the hospital with a paper? A. Yes, he had a paper in his hand. Q. That was about the time that you awoke, about daybreak? A. About three or four o’clock. Q. Will you look at that paper and say if you recognize it (release shown witness)? A. I said before that a man came in the hospital with a piece of paper, and said-Q. Look at that paper and say if you recognize that paper. Did you ever see it before? A. I say the name is mine.. Q. Are both those names yours? A. Yes, sir. Q. Henry, when you signed that paper, did the gentleman give you anything? A. What gentleman? Q. The gentleman who handed you the paper which you say you signed. A. Yes, sir. Q. What did he give you? A. A check (check handed witness). Q. Will you look at that check and say if you ever saw it before? A. I was sick and didn’t look at it. I couldn’t recognize it. Q. Did you ever see that check before? A. He handed me a check when I was sick, and some of the people put it in my pocket. Q. Is that the check? A. I can’t recognize that check. Q. You don’t recognize it? A. You ask me about that check? Q. Yes, I am asking you about this particular check. How much was the check for that you got? A. After I found it I saw it was $200. Q. When this man handed you the paper how much did you tell him your losses were? A. He didn’t ask me about the losses, I told him that I had money. Q. How much did you tell this gentleman that you had lost by reason of this accident? A. He didn’t ask me how much, I told him I had pretty near $200 in cash, and I couldn’t buy a ticket because I had lost it.” We have omitted nothing from the testimony of the witness which has even remote bearing on the question before us.

The least that can be required of one who attempts by his own uncorroborated testimony, to escape from the binding force of a written agreement, which he admittedly executed, on the ground that at the time of its execution he did not understand the nature and character of the act in which he was engaged, is a direct, positive and unequivocal statement from him that such was his attitude and condition of mind. If he was so far mentally incompetent that he is without recollection of the transaction, he can say so; if affected to a degree which leaves his memory of the transaction obscure and uncertain, he can say so; if surrounding conditions at the time he executed the paper were such as to preclude sensible and deliberate action, or make him the easy subject of fraud and imposition, and these were practiced upon him by misrepresentation or concealment, he is free to state all the facts in connection therewith. Where a party under such circumstances asserts nothing distinctly with reference to his mental condition at the time inquired of, testifies to nothing from which the degree of mental impairment, if any, can be discovered with even reasonable certainty, or nothing warranting an inference that his condition, whatever it was, was employed to extract from him an unconscionable bargain, and the case rests on his testimony alone, he has no right to an issue before a jury on the question of whether his contract is to be enforced against him or set aside. Was this plaintiff when he executed the release in question capable of comprehending and understanding his act, its nature and probable consequences? He nowhere says he was not; he nowhere says he did not understand it; he does not say that he did not read the release, or that it was not read to him, or that its contents or effect were misrepresented to him. If this failure to testify directly as to these considerations on which his right to be relieved from his contract depended, be overlooked, and his testimony be examined for facts from which his inability to comprehend the nature of the transaction might reasonably be inferred, failure here is quite as obvious. His testimony covered the particulars of his surroundings at the time, and occurrences in connection with the execution of the release, in a way that negatives the claim set up that he was without intelligent understanding. He was so far in possession of his faculties that he remembers and can recall with positive asseveration what did and what did not occur in respect to himself, who were present and who were not, what he said and what he did not say during the period to which this inquiry must relate. True, he says that he was carried from the place where he was found along the track to the hospital, and there placed upon a cot where he believes he remained “in a kind of .a stupor for an hour or two,” from which, however, he had recovered before anything was said or done about the release. What his injuries were which produced this stupor he nowhere states. So far as could be observed he was without any, except some contusions which his own home physician testified did not injure him to any serious extent. • The extent of his injuries and suffering during the period he was at the hospital appears from the following answer given by him in his examination in chief: “Yes, sir, the same morning that the wreck was, and I began to feel a very terrible pain in my shoulder and was very cold, because I was naked, my underclothes was in pieces.” And this is all of his testimony with respect to his suffering. With what developed later we have no concern. It is of course possible that under such conditions as he described he may have lacked the power of free, intelligent action; but mere possibility will not sustain a legitimate inference of the existence of facts. The plaintiff’s case presented nothing better.

There is nothing left in the case except the amount paid on the release, and the circumstance that the release was given within a few hours after the accident occurred. Neither could be for consideration except in connection with something shown in the case, which being so supplemented afforded a basis for a reasonable inference that the plaintiff did not have intelligent understanding of the transaction. If the plaintiff was himself and understood what he was doing, the time when the release was executed is unimportant, and so, too, the consideration paid. In themselves these features of the case are of the slightest significance. The presumption in favor of the integrity of an instrument of tins land is not lightly overcome. Nothing short of evidence precise, clear and indubitable can be allowed to overturn a written instrument. When it does not come up to this measure, the case should be withdrawn from the jury: Penna. R. R. Co. v. Shay, 82 Pa. 198; Gibson v. R. R. Co., 164 Pa. 142; DeDouglas v. Traction Co., 198 Pa. 430. And that is clearly what should have been done in this case, assuming the testimony of plaintiff to be true, and giving no significance to the fact that it was contradicted with respect to everything material or important, even to the circumstance of his having occupied a cot in the hospital, by a number of disinterested witnesses. The first assignment of error is sustained; the judgment reversed, and judgment is now entered for defendant.


author: Mr. Justice Mestrezat,

text:
    Zimmerman, Appellant, v. Rhoads.

      Equity — Specific performance — Contract—Consideration—Time of performance.

    1. A court of equity will not enforce a contract, unless it is complete and certain in all its essential elements. The parties themselves must agree upon the material and necessary details of the bargain, and if any of these be omitted, or left obscure or indefinite, so as to leave the intention of the parties uncertain respecting the substantial terms of the contract, the case is not one for specific performance.
    2. It is not the function of a court of equity to make a contract for the parties, or to supply any of the material stipulations thereof. If any of the essential details are wanting a chancellor will not supply them in a decree for specific performance.
    3. Where a contract for the sale of coal underlying a tract of land does not specify the consideration nor any time for the payment of any sum as a consideration, the court can enter no decree of specific performance.
    4. Even where such a contract contains the words “This option is good for one month at eight cents royalty per ton,” and it is conceded that the option was accepted, the court cannot enter a decree of specific performance in the absence of any provision in the contract as to when the royalties should be paid, how long the contract should continue, or what should be the maximum or minimum quantities to be mined.
    Argued Oct. 7, 1909.
    Appeal, No. 48, Oct. T., 1909, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1907, No. 14, dismissing bill in equity in case of Daniel B. Zimmerman v. Alex. Rhoads and S. N. Widdup.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for specific performance of a contract. Before Gillan, P. J., specially presiding.
    From the record it appeared that the contract sought to be enforced was exactly as follows:
    “Agreement made the 8th day of December, 1906, between Alex. Rhoads of Somerset Borough, Somerset County, State of Pennsylvania, of the first part, and C. O. Kooser, of the second part:
    “Witnesseth: That the said part . . of the first part, for the consideration hereinafter mentioned, hereby agree . . to sell and convey by deed of general warranty, clear of all encumbrances, unto the said part . . of the second part, .... heirs and assigns, all the coal of whatsoever kind in and under all that certain tract of land situate in Quemahoning Township, Somerset County, and State aforesaid, bounded and described as follows:
    “On the north by lands of James Shaffer; on the east by lands of D. B. Zimmerman; on the south by lands of Lemon Miller, on the west by lands of ... . Dixon; and containing three hundred forty-two acres, more or less.
    “Together with the full perpetual and exclusive right to enter in, upon, and under the said lands to dig, test, drill and explore for said coal, and to mine, remove and transport the same from this and other lands, with the full privileges which are usual and necessary for mining purposes, without liability for damages.
    “In consideration whereof, the said part . . of the second part, .... heirs and assigns, agree to pay, or cause to be paid to the said part . . of the first part, .... dollars per acre for each and every acre of coal contained therein, on or before twelve month from date hereof, upon presentation and delivery of a good and sufficient deed, clear of all encumbrances; payments to be made as follows:
    “This option is good for one month at 8c. (eight cents) royalty per ton.
    “It is further understood and agreed, by the parties hereto, that in case payment is not made as hereinbefore stipulated, then this agreement to be null and void and of no effect whatever, and all parties hereto to be reléased from all liability herein.
    January 3, 1910:
    “In witness whereof, the parties hereto have hereunto set their respective hands and seals, this .... day of ... . A. D.,19 ....
    “Alex. Rhoads, (seal)"
    The court dismissed the bill.

      Error assigned was decree dismissing the bill.

      Edmund E. Kiernan and W. H. Ruppel, with them Chas. F. Uhl, Jr., and Ernest O. Kooser, for'appellant.
    The property is sufficiently described in the agreement by boundaries to be easily identified; the consideration to be paid is named, eight cents per ton royalty; and the mining rights are full, granting the right to mine and remove said coal from this and other lands, with full mining privileges which are usual and necessary for mining purposes, without liability for damages: McFarson’s App., 11 Pa. 503; Koch & Balliet’s App., 93 Pa. 434; Aye v. Philadelphia Co., 193 Pa. 451; Watson v. O’Hern, 6 Watts, 362; Ray v. Nat. Gas Co., 138 Pa. 576.
    And so as to times of payment; fair and reasonable times of payment were intended. If the parties cannot finally’ come to terms, the court will make them. The payments are due ordinarily when the goods are taken, when the coal is removed: Fessler’s App., 75 Pa. 483.

      J. A. Berkey, with him C. L. Shaver, Charles C. Greer, L. C. Colburn and H. M. Berkeley, for appellees.
    The option is not capable of enforcement because it is vague, indefinite, uncertain and lacks mutuality: Backus’s App., 58 Pa. 186; Stephens v. Gifford, 137 Pa. 219; Ballou v. March, 133 Pa. 64; Freetly v. Barnhart, 51 Pa. 279; Koch & Balliet’s App., 93 Pa. 434.
   Opinion by

Mr. Justice Mestrezat,

The learned judge of the court below was right in dismissing the plaintiff’s bill. It prayed for the specific performance of a contract, the terms of which were entirely too indefinite, incomplete and uncertain to warrant a chancellor in decreeing specific performance. A court of equity will not enforce a contract, unless it is complete and certain in all its essential elements. The parties themselves must agree upon the material and necessary details of the bargain, and if any of these be omitted, or left obscure or indefinite, so as to leave the intention of the parties uncertain respecting the substantial terms of the contract, the case is not one for specific performance: Ikerd v. Beavers, 106 Ind. 483. It is not the function of a court of equity to make a contract for the parties, or to supply any of the material stipulations thereof. If any of the essential details are wanting a chancellor will not supply them in a decree for specific performance.

The prayer in a bill of this character is for the specific performance of a contract, and not that the court will make a contract for the parties or compel them to perform any stipulations not included in their agreement. The proper decree in favor of the complainant entered upon a bill for specific performance is that the contract as made by the parties be specifically performed, and it is obvious that unless the agreement is certain and complete in all its essential details no decree should be entered.

The contract in question purports in one part of it to be an agreement of sale for the coal underlying a certain tract of land. The vendor therein agrees to convey the coal by deed of general warranty and gives to the vendee the right to remove all the coal. There is, however, no consideration named in the deed for such conveyance; nor is there any time designated for the payment of any sum as a consideration. In another part of the contract appears the following sentence: “This option is good for one month at eight cents royalty per ton.” There is nothing in the other parts of the written paper which stipulates or fixes any of the material elements of the option. Rhoads does not bind himself to give an option on any of his property. Inferentially the option refers to the coal named in another part of the writing. There are no stipulations fixing the time of payment of the royalty nor the duration of the option nor the minimum or maximum quantities to be mined. If, therefore, it be conceded that the paper is an option and that the option was accepted by the optionee, yet for lack of essential details in the agreement, it is apparent the court can make no decree for the specific performance of the contract. The court cannot enter a decree and fix the time when the royalties should be paid, the duration of the contract, or the maximum or minimum quantities to be mined, because the parties have failed to agree as to those matters. The contract is entirely too vague, uncertain and incomplete in material stipulations to warrant a chancellor in entering or enforcing a decree for specific performance.

The decree of the court below is affirmed.