text:
    Commonwealth to use v. Doubleday-Hill Electric Company, Appellant.

      Receivers — Receiver’s sale- — Bond—Resale.
    In an action upon a bond given to a receiver conditioned üpon the obligors bidding a certain price on a resale of property previously sold for an alleged inadequate price, an affidavit of defense is sufficient to prevent judgment which avers that at the second sale the receiver was notified to secure from the purchaser the hand money in accordance with the terms of the sale; that the receiver replied that he would take the chance of getting the money; and that bidders were present ready and willing to pay the amount specified in the bond.

      Argued Oct. 20, 1909.
    Appeal, No. 95,
    Oct. T., 1909, by defendants, from order of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 933, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth, for use of the Creditors, and Robert Hawk, Receiver of the Coney Island Amusement Company v. Doubleday-Hill Electric Company, Iron City Engineering Company and C. A. Lawrence.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit upon a bond.
    Rule for judgment for want of a sufficient affidavit of defense. Before Shafer, P. J.
    The averments of the affidavit of defense are stated in the opinion of the Superior Court.

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

      George E. Reynolds, with him George H. Calvert and Wm. A. Blakeley, for appellants.

      W. T. Tredway and Wm. A. Stone, with them Stef hen Stone for appellees.
   Opinion by

Mr. Justice Mestrezat,

January 3, 1910:

This is an action of assumpsit on a bond given by the defendants to the commonwealth for the use of creditors and a receiver, conditioned that the obligors would bid a certain price on a resale of the property and effects of the Coney Island Amusement Company, sold by the receiver for an alleged inadequate price. Each of the three defendants filed an affidavit of defense and the court, holding the affidavits insufficient, entered judgment in favor of the plaintiff. The defendants have appealed. In disposing of the appeal, we must treat the allegations in the affidavits as verity.

The affidavit avers, inter alia, as follows: “Prior to the time the bidders left the place of sale, this defendant is informed and believes and expects to be able to prove at the trial of his ease, that the receiver and his counsel were notified and warned to secure from the said purchaser fifteen per cent of the purchase price in accordance with the terms of sale, having in mind the failure of the prior purchaser to comply therewith, whereupon the receiver replied that he would take the chance of getting the money. The lien creditors were still present at this time ready and willing to pay $11,000 for the property.” If, therefore, the property was not sold on that day to a responsible bidder for $11,000, it was not the fault of the defendants. They had performed every duty enjoined upon them by their bond. They cannot be held responsible for a neglect of duty by the receiver. According to this averment the receiver assumed the responsibility for getting the money from the purchaser. If he had demanded payment of the hand money as the terms of sale required him to do and it had been paid, the sale would have been reported to and confirmed by the court, and the receiver could have enforced payment of the balance of the purchase money. This would have relieved the defendants from liability on their bond. If payment of the hand money had been refused, it was the receiver’s duty then and there to resell the property. If he had done so it wmuld have been purchased by the lien creditors for a sum at least equal to the amount which the defendants’ bond required them to bid. The receiver disregarded the admonition of the defendants to obey the terms of the sale which, if the averments of the affidavit of defense are true, resulted in the loss which he now seeks to recover from the defendants, the obligors in the bond. To permit him to do so would not be enforcing the obligations of the bond against the defendants for any default of theirs but by reason of his own default in not performing the duty required of him in the order under which he was making the sale.

The receiver made a return under oath to the court that he had sold the property at the September sale to A. H. Wise and that the hand money had been paid in accordance with the terms of the sale. The plaintiff’s statement fails to disclose this fact, but alleges that the property was knocked down to one Klein. If the return was correct, and having been made under oath we will assume that it was correct, the receiver could proceed against the defaulting purchaser: Singerly v. Swain, 33 Pa. 102. Setting aside the sale did not rescind the contract and release the purchaser from liability for the difference between his bid and the price at which the property was subsequently sold: Banes v. Gordon, 9 Pa. 426. Why the receiver prefers to sue the defendants on the bond rather than to require the purchaser of the property at the September sale to comply with his contract does not appear.

The majority of the court is of the opinion that the defense set up in the affidavit other than that above noted is insufficient, but thinks that averment, if sustained by the evidence, sufficient to defeat the plaintiff’s action, and for that reason the order of the court below making absolute the rule for judgment is reversed with a procedendo.


source: Caselaw Access Project

author: Me. Justice Brown,

license: Public Domain

text:
    Buck v. McKeesport, Appellant.

      Negligence — Evidence—Discrepancies in testimony of plaintiff — Case for jury.

    1. A judgment on a verdict for plaintiff in an accident ease will not bé reversed because of discrepancies in the testimony of the plaintiff, and of two of her witnesses, where it appears that even in such discrepant statements there was sufficient, if believed by the jury, to justify the finding that the cause of the injury was the defendant’s negligence.

      Evidence — Cross-examination—Answer to immaterial question — ■ Contradiction of witness.

    2. Where a witness on cross-examination has been asked an immaterial and irrelevant question, another witness cannot be called in rebuttal to contradict the reply given to such question.
    Argued Nov. 3, 1909.
    Appeals, Nos. 206 and 207,
    Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 155, on verdict for plaintiffs in case of Jennie B. Buck, Administratrix of Richard J. Buck, deceased, and Jennie B. Buck v. City of McKeesport.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Macfarlane, J.
    The facts appear by the opinion of the Supreme Court and by the former report of the case in 223 Pa. 211.
    F. G. Holden, a witness for plaintiffs, was called in rebuttal and asked the following questions: “Q. Did you go to subpoena Mr. Marshall Mains to appear in court at the last trial of this case? A. I did. Q. Did his wife at that time, and in his presence, say, ‘You didn’t tell the right story the last time, you have got to tell it this time? ’ ”
    Defendant’s counsel object because it was a matter that the plaintiff brought out herself on cross-examination, and as to which the witness was not interrogated in chief, or anything that would justify such a cross-examination. It having been admitted, the proposed testimony is further objected to as being entirely immaterial, and in no way showing any bias on the part of the witness.
    The Court: The objection is overruled and exception noted to defendant.
    Mr. Marshall: If the court will permit me to withdraw the witness I will withdraw him and not go into it.
    The Court: You can do as you please about it; but it is the same now as if you asked him.
    (Last question repeated.)
    “A. She did.”
    Verdict and judgment for plaintiff as administratrix of R. J. Buck for $2,436, and for herself for $9,574. Defendant appealed.

      Errors assigned were (1) refusal of binding instructions for defendant; (2) refusal of judgment for defendant non obstante veredicto; and (3) ruling on evidence as above, quoting the bill of exceptions.

      W. B. Rodgers, with him W. B. Newlin, for appellant.

      Rody P. Marshall, with him Thos. M. Marshall and Geo. O. Colder, for appellees.
   Opinion by

Me. Justice Brown,

January 3, 1910:

When this case was here before (Buck v. McKeesport, 223 Pa. 211), we said of it that it appeared to be close on the facts. This we now repeat, but cannot say that, under the evidence, the negligence of the defendant and the contributory negligence of the plaintiff were not for the jury. It is earnestly and plausibly urged by the learned counsel for appellant that, in view of the discrepancies in the testimony of the plaintiff and in that of the two witnesses called by her to support her allegation of negligence, there ought not to have been a recovery, and with almost persuasive force we are asked to sustain the first and second assignments of error. Our finding as jurors might have been different, but for this reason alone we cannot disturb the-verdict, for it is only when, under all the evidence, but one finding is to be drawn from it, that a different one cannot be permitted to stand. This is not the case here presented, for even in the inconsistent and discrepant statements of the plaintiff and her two material witnesses there was sufficient, if believed by the jury, to justify the finding that the cause of the injury was the stone pile negligently left in the street by the city, and the first and second assignments are therefore overruled.

Mrs. Marshall Mains was a material and most important witness for the defendant as to the cause of the accident. She saw it, and, according to her testimony, the buggy “tipped over” before it reached the stone pile. There had been two previous trials of this case, and, on the cross-examination of Mrs. Mains on this third and last trial, counsel for appellee were permitted, under objection, to ask her whether, at the time her husband was subpoenaed to appear as a witness at the second trial, she had not said to him, in the presence of the officer serving the subpoena, “You did not tell the right story at the last trial, and you have to tell the right story this time.” To this she replied that she had not. The question was asked her for the manifest purpose of showing bias on her part as a witness. A moment before she had been asked whether she had not taken quite an interest in the case, to which she answered that she had not and was in court because she had been subpoenaed as a witness. Not content with this, counsel for the plaintiff pursued her with the question that ought not to have been allowed. If she had admitted that she had said to her husband what the question attributed to her, it would not have been evidence of bias on her part as a witness. It would only have shown that she had reminded him that his account of the accident at the first trial had not been correct and that he would have to tell it correctly at the second. As an unbiased and disinterested witness she could have said this to him, and, being his wife, it was natural that she should have done so if she felt that he had been inaccurate at the first trial. For the purpose of discrediting her whole testimony counsel for the plaintiff were allowed, in rebuttal, under objection and exception, to call F. G. Holden, who had served the subpoena at the second trial, to contradict her reply to the immaterial and irrelevant question that had been asked her on cross-examination. This was not permissible: I Greenleaf on Evidence, sec. 449; and as the effect of Holden’s testimony in rebuttal may or must have been that for which it was intended, it was error to admit it, for which the judgment must be reversed. In this class of cases, in which juries are only too prone to find verdicts for plaintiffs in unwarranted amounts, even in meritorious cases, the risk of departure from the strict rules of evidence into which the trial court may be led by counsel is always a reversal of the judgment. The third assignment of error is sustained and the judgment reversed with a venire facias de novo.


author: Mr. Justice Mestrezat,

text:
    O’Donnell, Appellant, v. Pittsburg.
    ■ Constitutional law — Special legislation — Title of statute — Road law— Act of April 2, 1903, P. L. 124.
    1. The Act of April 2, 1903, P. L. 124, is not unconstitutional because it authorizes the viewers’ report in road cases to be offered in evidence on an appeal as prima facie evidence of the benefits accruing to the property owner by reason of the improvement. It is not special legislation within the meaning of art. Ill, sec. 7, of the constitution, inasmuch as it applies throughout the commonwealth, and in all proceedings for the purpose of assessing benefits to meet the costs and expense of municipal improvements; nor does it offend against sec. 3, art. Ill, of the constitution as insufficient in title as to this particular provision, since the title to the Act of May 16, 1891, P. L. 75, to which the act of 1903 is a supplement, is sufficiently broad to cover it.
    2. Under the Act of April 2, 1903, P. L. 124, a property owner has a right to appeal from the report of viewers, but on the trial of such an appeal the report of the viewers is prima facie evidence of the benefits assessed, if it appears that the report was finally confirmed; but this confirmation may be as of course by the prothonotary when no exceptions have been filed, or by the court when exceptions have been filed.
    Argued Nov. 3, 1909.
    Appeal, No. 200,
    Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 333, on certificate for defendant in case of J. E. O’Donnell v. City of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of road jury. Before Kennedy, P. J.
    At the trial the court admitted under plaintiff’s objection
    and exception the offer of the report of viewers to show assessments and benefits accruing to plaintiff’s property.
    Certificate and judgment for defendant for $1,649.61. Plaintiff appealed.

      Error assigned was the admission of the report of the jury of view.

      F. C. McGirr, with him John Marrón and J. E. O’Donnell, for appellant.
    -The act of 1903 is unconstitutional as special legislation: Strine v. Foltz, 113 Pa. 349; Gardner v. Chester, 2 Pa. Dist. Rep. 704.
    The act is unconstitutional because its subject is not expressed in the title of act: Com. v. Farley, 6 Pa. C. C. Rep. 433; Mt. Joy Borough v. Lancaster & Turnpike Co., 182 Pa. 581.
    Even if the act be constitutional, the viewers’ report was improperly received as evidence in this case: Pittsburg v. Eyth, 26 P. L. J. (N. S.) 316.

      Lee C. Beatty, first assistant city solicitor, with him C. A. O’Brien, city solicitor, for appellee.
   Opinion by

Mr. Justice Mestrezat,

January 3, 1910:

This was an appeal to the common pleas from the assessment of benefits against the plaintiff for the opening and grading of a street in which damages were awarded to other property holders. As the benefits were assessed to pay damages to other property owners, there is no doubt of the plaintiff’s right to appeal under the statute. On the trial of the cause the defendant offered in evidence the report of viewers, duly confirmed under the statute, as prima facie evidence of the benefits accruing to the plaintiff’s property. The offer was admitted against the objection of the plaintiff.

The only question involved in the case is whether the Act of April 2, 1903, P. L. 124, is constitutional in so far as it authorizes the viewers’ report to be offered in evidence on the appeal as prima facie evidence of the benefits accruing to the property owner by reason of the improvement. The plaintiff contends that this provision of the act of 1903 is unconstitutional for two reasons: (a) That it offends against art. Ill, sec. 7, of the constitution prohibiting special legislation; and (b) it violates art. Ill, sec. 3, of the constitution which provides that no bill, except appropriation bills, shall be passed, containing more than one subject, which shall be clearly expressed in its title.

The plaintiff maintains that the act is special legislation because it applies only to reports of viewers in street cases and not to all classes of eminent domain proceedings. We think, however, this objection is not well taken. The report of viewers is only made prima facie evidence after the final decree of the court approving, confirming or modifying it. The report as confirmed is evidence only of the amount of benefits which will accrue to the owner from the municipal improvement, and is not evidence of the damages awarded. The act therefore would not be applicable and could not be extended to railroad and other condemnation proceedings. It is neither local nor special legislation, but applies throughout the commonwealth and in every proceeding instituted for the purpose of assessing benefits against a property owner to meet the cost and expense of municipal improvements. In all cases of this character instituted in any municipality of the commonwealth, the act makes the report of viewers, confirmed by the court, prima facie evidence of the benefits accruing to the property. This, we think, relieves it from the charge of being special legislation, and shows that the act is of general application in such cases and is therefore general legislation.

It is also objected that the provision of the statute under consideration is not expressed in the title and therefore offends against sec. 3 of art. Ill of the constitution. We think, however, it is clearly within the title of the original act, and that fully meets the objection: State Line & Juniata Railroad Company’s Appeal, 77 Pa. 429; Craig v. First Presbyterian Church, 88 Pa. 42. The title to the Act of May 16, 1891, P. L. 75, to which the act of 1903 is a supplement is very broad and explicit. It is as follows: “ An act in relation to the laying out, opening, widening, straightening, extending or vacating streets and alleys, and the construction of bridges in the several municipalities of this commonwealth, the grading, paving, macadamizing or otherwise improving streets and alleys, providing for ascertaining the damages to private property resulting therefrom, the assessment of the damages, costs and expenses thereof upon the property benefited, and the construction of sewers and payment of the damages, costs and expenses thereof, including damages to private property resulting therefrom.” It will be observed that the title of the act of 1891 covers a provision for “the assessment of damages, costs and expenses thereof upon the property benefited” in making municipal improvements in the commonwealth. The title, therefore, would give notice to all interested parties that the act made provision for the assessment of benefits, and this would include such proceedings as the statute would provide from their inception to the final judgment of the appellate court. It is certainly broad enough to include a provision in the act for all steps in any trial or litigation necessary to ascertain the benefits resulting to the property owner by reason of the improvement. As said in Commonwealth v. Keystone Benefit Association, 171 Pa. 465, it is not necessary that the title should give notice of all the indirect and incidental effects of the act. Nor is it required to be a digest of the contents of the act. It is sufficient if the title fairly and clearly gives notice of the subject-matter so as reasonably to lead to an inquiry into the body of the act: Allegheny County Home’s Appeal, 77 Pa. 77; State Line & Juniata Railroad Company’s Appeal, 77 Pa. 429. We think the provision of the act in question is germane to the subject expressed in the title of the act of 1891 authorizing legislation for “the assessment of damages, costs and expenses thereof upon the property benefited,” and that therefore the supplemental act of 1903 does not offend against art. Ill, sec. 3, of the constitution.

The appellant had the right to appeal in this case because his property was assessed benefits to pay damages to others who had property taken, injured or destroyed by the improvement. No exceptions were filed to the report of viewers, and it was confirmed absolutely by the prothonotary as required by the act of 1903. Upon the trial of such an appeal, the statute makes the report of viewers as finally confirmed by the court prima facie evidence of the benefits assessed. But this confirmation may be as of course by the prothonotary when no exceptions have been filed, or by the court when exceptions have been filed. It is the report, as finally confirmed by the court, with or without the filing of exceptions, that is made competent evidence on the appeal. Hence it is the adjudication of the court that is made evidence of the amount of the benefits, and that may be the sum awarded by the viewers or that sum as “modified or changed by the court.” We think it immaterial whether the confirmation is, as of course, by the prothonotary where no exceptions are filed or by the court where exceptions have been filed to the report.

' The learned trial court properly disposed of the case, and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Martin, Appellant, v. Pittsburg Railways Company.

      Negligence — Death — Statement — Amended statement — Change of cause of action — Statute of limitations — Pleading—Act of April 26, 1855, P. L. 309.
    1. Where at the trial of an action to recover for the death of plaintiff’s husband, every act of negligence charged in the original statement of claim is shown to be untrue and unfounded, the situation is not cured by an amended statement setting up an entirely different theory, charging a different kind of negligence based upon different relations of the parties, after the statute of limitations has become a bar. ■
    2. This rule is applicable where the original statement is based on the standard of care owing by a street railway company to a person, not an intending passenger, at a street crossing, while the amended statement is based upon the relation of common carrier and passenger, and the standard of care is the protection which an intending passenger is entitled to receive while getting on a street car.
    3. In an action to recover damages for death caused by the negligent act of another, the statute of limitations need not be specially pleaded.
    Argued Nov. 3, 1909.
    Appeal, No. 209,
    Oct. T., 1909, by plaintiff, from judgment of C.'P. No. 3, Allegheny Co., Nov. T., 1904, No. 962, for defendant non obstante veredicto in case of Margaret Martin, for herself and as next friend for Michael Martin, and John' Martin v. Pittsburg Railways Company.
    Before Fell, Brow™, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Davis, J.
    The opinion of the Supreme Court states the case.

      At the trial the jury returned a verdict for plaintiff for $5,625. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      R. S. Martin, with him W. A. Hudson, for appellant.
    — The foundation of plaintiff’s cause of action as laid in the statement of claim is adhered to in the amendment, and the amendment may vary the mode of stating the cause of action: Knapp v. Hartung, 73 Pa. 290; Stoner v. Erisman, 206 Pa. 600; Herbstritt v. Lumber Co., 212 Pa. 495; Pittsburg Junction R. R. Co. v. McCutcheon, 18 W. N. C. 527; Schmelzer v. Traction Co., 218 Pa. 29.
    To make the defense of the statute, the statute should have been pleaded: Barclay v. Barclay, 206 Pa. 307; Dickerson v. R. R. Co. of N. J., 7 Pa. Dist. Rep. 104; Daley v. Henry, 51 P. L. J. 313.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellee.
    — An amendment to a declaration will not be allowed if a new cause of action is thereby introduced, which is barred by the statute of limitations.
    A fatal and material defect in the pleadings cannot be corrected after the statute of limitations has become a bar: Wright v. Hart’s Admr., 44 Pa. 454; Smith v. Smith, 45 Pa. 403; Trego v. Lewis, 58 Pa. 463; Fairchild v. Dunbar Furnace Co., 128 Pa. 485; Grier v. Northern Assurance Co., 183 Pa. 334; Mahoney v. Park Steel Co., 217 Pa. 20.
    The act of 1895 need not be pleaded: Rodebaugh v. Phila. Traction Co., 190 Pa. 358; Peterson v. Ferry Co., 190 Pa. 364; Spees v. Boggs, 204 Pa. 504.
   Opinion by

Mr. Justice Elkin,

January 3, 1910:

This is an appeal from the judgment entered by the court below for defendant non obstante veredicto. The accident occurred on January 21, 1904, and the original statement of claim was filed November 2, 1904. The negligence charged was that the car was running at an excessive rate of speed; that there was no headlight on the car; and that no bell was rung nor gong sounded as the car approached the crossing. The theory of the case then was that the decedent while attempting to cross a public street was negligently run down and fatally injured by a car of the appellee company without a headlight and without proper warning of its approach having been given. Thus the case stood until September 4, 1906, when a rule to show cause why an amended statement should not be filed was made absolute. The amended statement set up another theory of the case and averred negligence of an entirely different character. It was that the decedent, an intending passenger, signaled the car to stop which it did in pursuance of the signal given, and while in the act of boarding the car and before he was securely on it suddenly started and threw him to the ground and under the car. At the trial every act of negligence charged in the original statement was shown to be untrue and without foundation in fact. There was no evidence to show that proper signals were not given, and the positive testimony of witnesses produced by appellant showed that the car had a headlight; that it was not running at an excessive rate of speed, and that the decedent was not attempting to cross the street at the time of the accident. In other words, plaintiff proved herself out of court on the original statement. Can this situation be cured by an amended statement setting up an entirely different theory, charging a different kind of negligence based upon different relations of the parties after the statute of limitations had become a bar? All of our cases hold that this cannot be done if a new cause of action be introduced by the amended statement. The cause of action, if any, was the negligent act or acts which occasioned the injury. In the original statement the negligent acts relied on to sustain a recovery were recited in detail and with such circumstantiality as to leave no doubt upon what ground a recovery was based. In the amended statement this ground is not merely shifted, it is entirely abandoned. It is not, therefore, a case of adding to or amplifying the original statement within the rule recognized in some of our eases, but on 1he contrary a different theory is relied on, new grounds are set up and other acts of negligence entirely different are alleged. The relations and duties of the parties are entirely changed by the amended statement. In the original statement the standard of care was the duty owed by a street railway company to a person, not an intending passenger, at a street crossing. In the amended statement the relation of common carrier and passenger is set up, and the standard of care required in protecting an intending, passenger while getting on the car is relied on. The two theories are entirely inconsistent and cannot be sustained on the ground that one is but an enlargement of the other.

It is further contended that the statute of limitations must be specially pleaded and that inasmuch as no special plea was entered in this case, such a defense cannot prevail. As to actions of assumpsit this is true, because both at common law and under the procedure act of 1887 such a plea is required if relied on to defeat a recovery. This rule has no application to the case at bar which is an action of trespass brought by the widow to recover for personal injuries resulting in the death of her husband. At common law she had no such right of action, and the act of 1855 upon which her claim is based requires that “the action shall be brought within one year after the death and not thereafter.” The procedure act of 1887 in express terms provides that “the only plea in actions of trespass shall be 'not guilty.’” Certainly under this general statutory plea the defendant either by the record or by evidence introduced at the trial may show that the action was not brought within the time definitely fixed by the act, which has expressly provided that suit should not be brought after the time limited, and when this fact is established, the right to recover is defeated. All of these matters were properly raised by learned counsel for appellee at every stage of the case under the plea of the general issue, and nothing more was required.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    King v. Mellon National Bank of Pittsburg, Appellant.

      Bailment — Pledge of stock — Antecedent debt — Innocent purchaser— Fraud.

    Where an owner of certificates of stock signs a blank transfer and power of attorney on the back of each certificate, and delivers them to a firm of brokers to be sold, and the brokers instead of selling them hand them over to a bank in substitution of collateral previously pledged for an antecedent debt of their own, the bank is entitled, upon the failure of the brokers, to hold the certificates as against the owner, on the ground that the giving up of the collateral previously pledged was a consideration for the pledge of the certificates, and the bank was therefore an innocent holder for value to the extent of such consideration given in exchange.
    Argued Nov. 4, 1909.
    Appeal, No. 210,
    Oct. T., 1909, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1908, No. 648, on bill in equity in case of Rachel A. A. King v. Mellon National Bank, of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity to compel the surrender of certain certificates of stock and for an account. Before Miller, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree directing proceeds of sale of the stock to be paid to plaintiff.

      Error assigned was the decree of the court.

      Samuel McClay, of Reed, Smith, Shaw & Beal, with him, Wm. M. Robinson, for appellant.
    — Collaterals taken in exchange for other collaterals are taken for value to the extent of the consideration given in exchange: Midland Nat. Bank v. Missouri Pac. Ry. Co., 132 Mo. 492 (33 S. W. Repr. 521); Cherry v. Frost, 75 Tenn. 1; Depeau v. Waddington, 6 Whart. 210; Goodman v. Simonds, 61 U. S. 343; Ayrault v. McQueen, 32 Barb. 305; First Nat. Bank v. Bentley, 27 Minn. 87 (6 N. W. Repr. 422).

      H. K. Siebeneck, with him Warren I. Seymour and H. H. Patterson, for appellee.
    — The acceptance of stock pledged as collateral security for notes given in consideration for preexisting indebtedness does not constitute the pledgee such a purchaser for value as to preclude the owners of the stock from reclaiming it if it was procured from them by the fraud of the pledgor: Callendar v. Kelly, 190 Pa. 455; Linnard’s App., 2 Sadler, 195; Weaver v. Barden, 49 N. Y. 286; Ashton’s App., 73 Pa. 153; Gould v. Loan & Trust Co., 23 Hun, 322; Cleveland v. Bank, 16 Ohio, 236; Schuster v. Jones, 22 Ky. Law Repr. 568 (58 S. W. Repr. 595); Moodie v. Bank, 33 Leg. Int. 400; Pratt’s Appeal, 77 Pa. 378; Royer v. Bank, 83 Pa. 248; Cummings v. Boyd, 83 Pa. 372.
   Opinion by

Mr. Justice Brown,

January 3, 1910:

This bill was filed to compel the Mellon National Bank of Pittsburg to surrender to the complainant three certificates of the capital stock of the Pittsburg Trust Company and for an accounting of dividends received thereon. The complaint of the appellee is that the thirty-two shares of stock for which she held the three certificates were her property and were unlawfully pledged to the bank by Whitney & Stephenson, a firm of brokers, as collateral security for their indebtedness to it. There is no dispute about the facts upon which the decree in her favor was made. In 1903 she was the owner of the stock in controversy, and the same stood in her name on the books of the Pittsburg Trust Company. She delivered her certificates to Whitney & Stephenson that they might sell the stock when the market price reached $900 per share. In delivering the certificates to them she signed the blank transfer and power of attorney on the back of each. Whitney & Stephenson were a reputable firm of brokers' at the time they received the certificates, and continued to be of good repute until they were adjudged bankrupts in December, 1907. On June 30, 1906, they borrowed from the appellant $50,000 on their promissory note, payable on demand, securing the same by the deposit of various collaterals. The collateral clause in the note provided that the collaterals deposited should be held by the bank as security hot only for the payment of the note of that date, but for all other indebtedness or liability of the makers, “ whether absolute or contingent as maker or endorser, drawer or acceptor,' now existing, or which may hereafter be contracted or incurred.” At that time the bank held two demand notes which they had procured from Whitney & Stephenson, the one dated April 13, 1903, for $48,000, upon which they were makers, the other dated May 7, 1906, for $50,000, upon which they were indorsers. Each of these notes was secured by the deposit of various collaterals, the collateral clause in each being similar to that in the note of June 30, 1906. On March 23, 1907, Whitney & Stephenson procured from the bank the return to them of 200 shares of Pittsburg Plate Glass Company stock and 100 shares of Penn Iron & Coal Company stock, which had been deposited by them on June 30, 1906, as collateral security under the collateral clause in their note of that date. This stock was their absolute property. In lieu of it they delivered to the bank the thirty-two shares of Pitts-burg Trust Company stock which had been left with them by the appellee, sixty-seven shares of Central District & Printing Telegraph Company stock and $2,500 in cash. The value of the securities returned by the bank to Whitney & Stephenson was about equal to what was substituted for them. The bank subsequently — in October and November, 1907 — became the holder of four notes aggregating $11,500, upon which Whitney '& Stephenson were liable as makers or indorsers. Two of these notes, for $5,000 each, dated October 3, 1907, upon which they were makers, were secured by collaterals. The other two, upon which they were indorsers, were not so secured. Whitney & Stephenson were adjudged bankrupts in December; 1907, and by authority of the United States district court the bank was authorized to expose to sale the col-laterals pledged with the five notes, with the exception of the ' stock claimed by the' áppellée. The amount realized from the sale of these collaterals on July 2, 1908, was $120,469.85. The amount due the bank by Whitney & Stephenson at that time was $140,123.90, leaving a balance unpaid of $19,654.05, with interest from June 22, 1907. Subsequently, under the authority contained in the collateral note of June 30, 1906, and with the approval of the United States district court, the bank sold at public auction the thirty-two shares of stock claimed by plaintiff for $12,640, her attorney becoming the purchaser of it. The amount realized from the collateral deposited with the note of June 30, 1906, exclusive of the plaintiff’s stock, exceeded the amount due on that note. The amount realized from the sale of the collaterals pledged for the notes of April 13, 1903, and May 7, 1906, fell short by about $19,000 of the balance due on them, which was reduced by the price received for plaintiff’s stock to about $7,000. If the decree directing the appellant to pay to the appellee the amount realized from the sale of her stock stands, the appellant will be short about $19,000, with interest, and, with the decree reversed, allowing it to retain the proceeds of the sale of the stock, there will still be due it about $7,000.

The first legal conclusion of the court below was that, if complainant’s stock was needed to pay the note of June 30, 1906, she must bear the loss, and that, under the terms and conditions of the collateral clause in that note, loss must fall upon her if her stock, or any portion of it, was needed to pay the indebtedness of Whitney & Stephenson to the bank incurred subsequently to June 30, 1906. The authorities relied upon to sustain this correct conclusion are: Shattuck v. American Cement Company, 205 Pa. 197; Ryman v. Gerlach, 153 Pa. 197; Pennsylvania Railroad Company’s Appeal, 86 Pa. 80. When the complainant left her stock with Whitney & Stephenson, with her signature attached to each blank transfer and power of attorney, for the purpose of enabling them to sell it, she clothed them with all the indicia of ownership, and against anyone who might have taken or purchased the stock from them for value she could set up no right or equity which she might have against them. Anyone to-whom they might have delivered the stock for value, in the ordinary course of business, would have an absolute title to it, but, conceding this to be so, the contention of the appellee, sustained by the court below in its second conclusion, is that her stock was not made liable on March 23, 1907, for the indebtedness of Whitney & Stephenson on the notes of April 13, 1903, and May 7, 1906. The reason given by the learned judge for this conclusion is: “But, Linnard’s Appeal, 2 Sadler, 195; Ashton’s Appeal, 73 Pa. 153, and the cases there cited; and Callendar v. Kelly, 190 Pa. 455, have established the well-settled rule in this state that a creditor who takes chattels, notes, or other choses in action as security for a pre-existing debt, is not a purchaser for value, as against the real owners. The value parted with by the bank on June 30 was $50,000 in consideration of the collateral that day received; the value it parted with on the two antecedent debts, namely, April 13, 1903, and May 7, 1906, was not directly or indirectly in consideration of the collateral pledged either on June 30, 1906, or March 23, 1907; as against the plaintiff the rightful owner of the stock, the pledgee’s right for payment of the antecedent debt must fall; the equities existing between both, equally innocent, estop the pledgee from benefit when the antecedent debts were not based upon any value subsequently given, at the time the security was pledged. This is not only the doctrine of this state, but prevails in other jurisdictions, inter alia, in Cleveland v. Bank, 16 Ohio, 236; Weaver v. Barden, 49 N. Y. 286; National Trust Company v. Gray, 12 Court of Appeals, D. of C. 276; People’s Savings Bank v. Bates, 120 U. S. 566.”

If the stock of the appellee had been taken by the appellant on March 23, 1907, merely as collateral security for the preexisting indebtedness of Whitney & Stephenson, evidenced by the notes of April 13, 1903, and May 7, 1906, and nothing more appeared in the case, innumerable authorities would support the view of the court below that such indebtedness was not protected by it, for when a creditor accepts from his debtor collateral security for pre-existing indebtedness, without giving any additional consideration for it, he gets something for nothing, and, although it may be of value, as he gave ■nothing for it, he is not to be regarded as an innocent holder for value against the real owner of what was so pledged to him, even though the pledgor deposited it with all the indicia of ownership in himself. When so received by a creditor, and he insists upon retaining it against the real owner as security for the payment of indebtedness that had been created before he received it, the law sustains the contention of the real owner that, as he gave nothing for it, he cannot keep it. But this is not the situation here presented. Very much more appears. The bank gave up for the stock claimed by the appellee valuable securities belonging to Whitney & Stephenson, which they had pledged to it on June 30, 1906, as security not only for the payment of the indebtedness that day created, but as additional security for their other indebtedness then existing on the two notes previously procured from them by the bank upon which they were makers or indorsers. That the bank, could have held the surrendered securities — the 200 shares of Pittsburg Plate Glass Company stock and the 100 shares of Penn Iron & Coal Company stock — not only to secure the payment of the note of June 30, 1906, but of the notes of April 13, 1903, and May 7,1906, is not to be questioned, for these stocks were the absolute property of Whitney & Stephenson, and, for a valuable consideration moving to them, on June 30, 1906, they pledged them, their absolute property, as collateral for the note of that day and for the two prior notes. When, therefore, the bank surrendered these securities to Whitney & Stephenson at their instance and request, what it took in place of them it took as an innocent purchaser. It gave value for value, with nothing to put it on inquiry as to the right of Whitney & Stephenson to treat the certificates for the thirty-two shares of stock as their own property. It sold part of the protection it had for the three notes and received in exchange similar protection for those notes from parties clothed with all apparent authority to make the exchange. The appellant simply asks that what it took in exchange for securities, with admitted liability impressed upon them, shall, under the circumstances, be impressed with the same liability. The conditions under which the bank received the stock claimed by the appellee appear in the following finding of fact, to which no exception has been taken: “That said thirty-two (32) shares of stock of the Pittsburg Trust Company, and sixty-seven (67) shares of stock of the Central District & Printing Telegraph Company were accepted by the Mellon National Bank, and the two hundred (200) shares of stock of the Pittsburg Plate Glass Company, and one hundred (100) shares of stock of the Penn Iron & Coal Company were surrendered by it to Whitney & Stephenson in the usual course of business, and without any knowledge on the part of the Mellon National Bank, directly or indirectly, of the claim of ownership of Rachel A. A. King, plaintiff in this case, to the said thirty-two (32) shares of stock of the Pittsburg Trust Company, and the Mellon National Bank had no knowledge of any such claim until January 20th, 1908, long after the said Whitney & Stephenson were adjudicated bankrupts in the District Court of the United States for the Western District of Pennsylvania.”

From all that appeared from the three certificates when they were delivered to the appellant the appellee may have signed the blank transfers on the very day they were delivered, and, under the circumstances, the bank must be regarded as a holder of the stock for value, clothed with the right to put it to exactly the same use to which the surrendered securities could have been put. While certificates of stock transferred in blank may not be regarded as strictly negotiable instruments they are, nevertheless, in the position of merchandise prepared for market by the owner, and pass by delivery. The stock of the appellee so passed to the appellant. “ Collaterals taken in exchange for other collaterals are taken for value to the extent of the consideration given in exchange. This is the rule where collaterals for a pre-existing debt are not regarded as taken for value. When old collaterals are surrendered and others taken in their place, the creditor in fact pays a consideration for the new securities, and the extent of that consideration is the value of the securities surrendered:” Jones on Pledges and Collateral Securities, sec. 470. “The exchange or substitution of other securities for those originally delivered as collateral, has no effect upon the rights of the pledgee, as founded upon the original contract. The surrender of the securities originally deposited is a valuable consideration for the giving of the new securities, and the pledgee is as to the latter a holder for value, in the usual course of business:” Colebrooke, Collateral Security, sec. 15. For the deception practiced by Whitney & Stephenson upon the appellee the appellant is not to suffer. She gave her faithless brokers the means of doing the wrong complained of, and she, and not the bank to which her stock passed as an innocent purchaser for value, must bear the consequences of her own act: Bank, of Kentucky v. Schuylkill Bank, 1 Parson’s Eq. 180.

The decree of the court below is reversed and the bill is dismissed, the costs below and on this appeal to be paid by the appellee.


author: Mr. Justice Potter,

text:
    Struthers Coal & Coke Company v. Union Trust Company, Appellant.

      Corporations — Corporate mortgage — Trusts and trustee — Discretion of trustee — Retirement of bond — Sinking fund — Construction mortgage.

    1. A court of equity has jurisdiction to control the exercise of the discretion of the trustee of a corporate mortgage, where such discretion has been abused.
    2. Where a dispute has arisen between a corporation and the trustee of a mortgage made by the corporation, as to the method of retiring bonds under the sinking fund clause in the mortgage, a court of equity may assume jurisdiction to settle the dispute as an actual one, and in so doing it does not deal with a mere abstract proposition.
    3. Where a coal company’s mortgage provides that certain of the bonds secured thereby may be redeemed at a premium, and certain others, termed serial bonds may be redeemed at par at any interest paying date, and the trustee of the mortgage is authorized to use the sinking fund to purchase and retire one or more of the bonds without specifying the class of the bonds, the trustee is bound to redeem the serial bonds, at par if possible, before purchasing at a premium the long term bonds.
    Argued Nov. 4, 1909.
    Appeal, No. 212,
    Oct. T., 1909, by defendant, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1909, No. 628, on bill in equity in case of Strutters Coal & Coke Company and Quin D. Hibbs et al. v. The Union Trust Company of Pittsburg.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Miller, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    The decree entered in the court below was as follows:
    And now, to wit, September 15, 1909, this cause came on to be heard at this term and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.:
    1. That defendant be and is hereby enjoined from at any time using the sinking fund under the mortgage involved in this case to retire long term bonds at five per cent premium unless and until the defendant has first made diligent but unsuccessful efforts to retire serial bonds at par.
    2. That by the terms of said bond and mortgage said sinking fund is applicable in the hands of the defendant as trustee to retire at par serial bonds, both as and when they severally mature and also at any time before maturity.
    3. The defendant individually to pay one-half of the costs; plaintiffs the other half.
    4. The bill to be retained for the purpose of affording further relief hereafter if occasion therefor exists and be made to appear.

      Error assigned was the decree of the court:

      J. H. Beal, of Reed, Smith, Shaw & Beal, for appellant.—
    The court had no jurisdiction to make the decree entered in this case, because it is purely advisory in character; nor had it any right to embody in its decree a provision retaining the bill for the purpose of enforcing compliance with the advice so given: Morton’s Est., 201 Pa. 269; Tyson’s Est., 191 Pa. 218.
    Under the terms of the mortgage it is neither the duty nor the right of the trustee to use sinking fund moneys to pay serial bonds at maturity.

      The trustee has not refused, when requested by the coal company, to do anything which, under the mortgage as properly construed, it ought to have done.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, for appellee.
    — It might seem a hopeless task to find an adjudicated case involving an interpretation of instruments at all paralleling the language of the bonds and mortgage in the case at bar. Nevertheless, the case about to be cited presents a judicial construction of instruments (statutes and ordinances), relating to a sinking fund and making use of the word “purchase” and also of the word “redemption.” The case, it seems to us, is a strong authority in support of the interpretation adopted by the court below and urged by the appellees: Bank v. Grace, 102 N. Y. 313 (7 N. E. Repr. 162).
   Opinion by

Mr. Justice Potter,

January 3, 1910:

As stated by the trial judge, the controversy in this case is as to the proper interpretation of the terms of a trust mortgage, given to secure certain bonds. The Struthers Coal & Coke Company issued 500 bonds of §1,000 each secured equally and ratably by a mortgage upon the property and franchises of the company, each of the bonds stipulating in identical words for a sinking fund for the redemption and retirement of the bonds, which would redeem all of them if the coal was all mined during the life of the bonds. This fund, to be created by the payment of twenty-five cents per ton for each ton of coal mined from the premises, is ample to secure to the bondholders the proportionate amount of the value of the coal as it is mined or removed. The bonds numbered 1 to 300 are not payable until July 1, 1918, but are subject to redemption upon any interest paying date at a premium of five per cent. The bonds numbered 301 to 500, inclusive, are known as serial bonds, divided into ten series of $20,000 each, of which the first series matured July 1, 1908, and one series matures upon July 1 each year thereafter, until and including July 1, 1917: These bonds are by their terms subject to redemption at par and interest, upon any interest paying date.

It is provided in the mortgage that the moneys paid to the sinking .fund shall be applied by the trustee:

“(a) Towards the purchase and retirement from time to time, in such manner, and at such prices as may be approved by the trustee (not, however, exceeding the price at which such bonds under the terms thereof, may be redeemed and retired) of one or more of the bonds secured thereby.
“ (b) If, in the opinion of the trustee, bonds cannot be so purchased, then towards the redemption and retirement in the manner provided in this article, of the bonds issued and outstanding hereunder, in their numerical order beginning with the lowest outstanding bond.”

Under the interpretation placed upon these sections by the trustee, it maintained that sinking fund moneys should not be applied to the purchase or redemption of serial bonds, until the long term bonds were retired; and it contended in the court below that it had the right to use the sinking fund exclusively in the purchase and retirement of the long term bonds at a premium, and that it was not bound to use the sinking fund under any circumstances in the retirement of the serial, or presently maturing, bonds, while any of the long term bonds were outstanding. This view was not accepted by the court below; it held on the contrary, that the position assumed by appellant in this matter, was wholly untenable, and it ordered and adjudged:

“ 1. That defendant be and is hereby enjoined from at any time using the sinking fund under the mortgage involved in this case to retire long term bonds at five per cent premium, unless and until the defendant has first made diligent but unsuccessful efforts to retire serial bonds at par.
“ 2. That by the terms of said bond and mortgage said sinking fund is applicable in the hands of the defendant as trustee to retire at par serial bonds, both as and when they severally mature, and also at any time before maturity.”

Counsel for appellant criticise the decree in this case as being purely advisory; but we do not so regard it. An actual dispute has arisen between the mortgagor and the trustee, and a court of equity has been asked to decide the precise question which has arisen. The trustee differed sharply with the debtor, in its interpretation of the language of the bonds and •mortgage, and undertook to require more from the mortgagor than it deemed was required of it, under the contract. Certainly this raised a question proper for the court to decide, and in its determination, the court was not dealing with any mere abstract proposition. It was dealing with known facts, in a genuine contest.

The point in dispute is a narrow one. It is as to the proper use of the sinking fund. Should the trustee use it to purchase or redeem serial bonds as they fall due, or is it justified in using the fund to purchase at a premium long term bonds, unmatured? Common business prudence would suggest that if the way is open to obtain bonds at par, they should be taken, rather than others whose purchase would involve the payment of a premium. Unless there is something in the contract which requires the trustee to do otherwise, clearly it is bound to use the fund to the best advantage, by making it go as far as possible, and this would require it to apply it to the retirement of the serial bonds. There is no reason to discriminate against them. The serial bonds are entitled to the same protection under the mortgage as the long term bonds. We find nothing in the provision for the creation of the sinking fund, which makes it applicable to the retirement of one class of bonds, as against the other.

The primary object of the fund was to protect all the bondholders by insuring the substitution of a sufficient amount of money, for such coal as might be mined and taken away from the premises. If the coal be not mined, but left in place, the sinking fund will only receive a minimum amount of $25,000 in each year. This is more than sufficient to cover the amount of serial bonds maturing each year, but under the right reserved to pay any of them off, upon each interest day, as many more of the serial bonds as are wanted may be called for payment. It is not clear why any doubt should be expressed under sec. (b) of the clause relating to the use of the sinking fund, as to the ability of the trustee to secure bonds, for obviously it has power to compel the holders of the serial bonds to accept payment and surrender them upon any interest day. Other things being equal, the long term bonds are the most valuable in the hands of the holders; they cannot be forced to surrender them for payment, unless a premium be paid for the right to call them. In the exercise of a reasonable business discretion, the trustee would certainly allow the unmatured long term bonds to remain unpaid, as long as it could find investment for the sinking fund in the serial bonds which were maturing each year, and which it could call in for payment and surrender upon any interest paying date. Only after the retirement of the serial bonds, would it be justified in applying the sinking fund to the purchase of the higher priced long term bonds. It matters not whether the sinking fund be sufficient to pay all the long term bonds at maturity. That will depend upon how much coal is mined. If it be not mined or removed, it will remain as security for the bondholders, against which they may enforce their demand for payment of the bonds at maturity, if need be.

The trustee is bound to deal fairly and equitably with all parties to the transaction, and the discretion which it may use is a legal discretion, and not an individual or arbitrary judgment. Any abuse of discretion upon the part of a trustee is clearly a matter for correction in a court of equity.

The decree of the court below in this case does not go beyond what is required by a fair and reasonable construction of the terms of the instrument creating the trust.

The assignments of error are overruled and the decree is affirmed, and this appeal is dismissed at the cost of the appellant.


author: Per Curiam,

text:
    Munhall, Appellant, v. Wiemann.

      Partnership — Oral agreement — Fraud—Evidence.
    Where a partnership agreement provides that one of the partners shall assign to the firm certain patents and future improvements thereon, but subsequently this agreement is canceled, and another agreement in writing is entered into which contains no reference to future improvements, but it is alleged that an oral agreement was made that such improvements were to be contributed, and that such oral agreement was omitted in the writing through the fraud of the partner who contributed the patents, such allegation cannot be sustained where it is positively denied and the proof of fraud entirely fails.
    Argued Nov. 4, 1909.
    Appeal, No. 213,
    Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 560, dismissing bill in equity in case of Albert C. Munhall v. William P. Wiemann.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Cohen, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing the bill.

      Charles W. Reamer, with him Blakeley & Calvert, for appellant.

      Robert H. Leitch, for appellee.
   Per Curiam,

January 3,1910:

The substance of the plaintiff’s bill is that in 1906 he entered into partnership with the defendant for the purpose of manufacturing a mechanical device for purifying water in boilers of which the defendant was inventor and patentee. That in pursuance of the agreement the defendant assigned to the partnership the patent he had obtained, and subsequently assigned to it two improvements he had invented and patented. That in 1908 the parties by agreement in writing canceled the articles of partnership and entered into a new agreement of partnership which contained no stipulation in regard to future improvements, but that there was an oral agreement that such improvements should become the property of the partnership, which was omitted from the writing through the fraud of the defendant. That at the time the new agreement was made, the defendant had invented an improvement on the device, for which he afterwards obtained a patent, and had expended the money of the partnership in advertising it and in constructing machinery for its manufacture; and that the defendant had refused to assign the patent for the improvement to the partnership and was about to assign it to others.

It was provided in the first agreement that the defendant should assign the patent he then owned to the partnership absolutely, and that he should assign to it all that he afterwards obtained for a period coextensive with the period for which the partnership was to continue. The second agreement contained a recital of the formation of the partnership under the first agreement; the carrying on of business by it; that its assets consisted with other property of the three patents that had been assigned by the defendant; that the parties were dissatisfied with the agreement and desired to abrogate and cancel it and “ to make and enter into a new and different agreement in writing, wherein and whereby their rights, duties and liabilities to and between each other as such copartners shall be stipulated.” The second agreement provided for the carrying on of the business under the patents that had been assigned. It was silent as to patents that should be taken out in the future by the defendant. The evident purpose of the second agreement was to relieve the defendant from the obligation imposed by the first to assign patents afterwards obtained.

There was a denial by the answer that any oral agreement had been made and that anything had been omitted from the second agreement, that the defendant had invented the device he afterwards patented before the second agreement was made, and that any money of the partnership had been expended upon it, and that the device patented was intended to correct imperfections or improve the device the patents for which had been assigned to the partnership. In brief, there was a distinct denial of every material allegation in the bill. At the hearing all of the charges of fraud were withdrawn, and no proofs were offered that would sustain any of the plaintiff’s allegations. There was no charge of a constructive fraud because of the violation of a fiduciary relation between partners, nor was there any proof that the patent obtained after the date of the second agreement was for an improvement on the device that the partnership was manufacturing. The charges having failed, there was nothing left on which the bill could be sustained.

The decree is affirmed at the cost of the appellant.


text:
    James H. Link Machinery Company v. Continental Trust Company, Appellant.

      Bailment — Conditional sale — Contract.
    A writing signed by one person certified that the writer had hired from a corporation named certain machinery, and that he agreed to pay for the use of the machinery for twenty months $4,250, partly in real estate at a valuation, and partly in notes payable at intervals of two months. The writer further agreed to pay for all freight for the delivery and return of the machinery, to keep it in good order, and to keep it insured. It was also provided that in case of default in payments the corporation should be at liberty to remove the machinery. By a separate writing on the same page, the corporation agreed to sell all of its title to the machinery after all payments had been made, for the sum of $107.40. There was evidence that this $107.40 was for interest on deferred payments, although the agreement stipulated that the notes should be without interest. Held, that the agreement on its face was a bailment, and not a conditional sale.
    Argued Nov. 4, 1909.
    Appeal, No. 173,
    Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1906, No. 375, on verdict for plaintiff in case of James H. I .ink Machinery Company v. Continental Trust Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Replevin for machinery. Before Frazer, P. J.
    From the record it appeared that the machinery in question had been purchased at a sheriff’s sale on an execution against the Pittsburg Saw Mill Lumber Company. From the evidence it appeared that the lumber company had received it from one D. B. Evans. The question of ownership turned upon the construction of the following agreement in writing:
    “This is to certify that I, the undersigned, have this day hired from the Jas. H. Link Machinery Company, Williams-port, Pennsylvania, the following named machinery, all to be delivered in good working order, f. o. b. cars Williamsport Penna. viz.:
    “For the use of-the above mentioned machinery for twenty months from January 1,1905, we agree to pay to Jas. H. Link Machinery Company the sum of forty-two hundred and fifty ($4,250) dollars, payable as follows:
    “Deed for three houses and lots in Watsontown, Penna., valued at $2,000, clear of all incumbrances.
    “Nine notes of $250 each, without interest, payable 4, 6, 8, 10,12,14,16,18 and 20 months from January 1,1905.
    “We further agree to pay all freight for the delivery and return of the above machinery, keeping it in good repair at our expense, also keeping said machinery insured to the benefit of Jas. H. Link Machinery Company, for the sum of $2,000.
    “We further agree that we will not.sublet or remove said machinery from saw mill building in which same is to be located near Butler Street Station, on the Allegheny Valley R. R., Pittsburg, Penna., except on account of danger from the elements, without the written consent of Jas. H. Link Machinery Company.
    “In event of our failure to make payments as specified above, or in event of our failure to pay any one of the notes above specified, when due, the Jas. H. Link Machinery Company shall be at liberty to remove the above named machinery from our factory at any time, without let or hindrance, and we further agree to pay for any damage to or loss of said machinery while leased by us, except ordinary wear.
    “In'witness whereof, I have hereunto set my hand and seal this 21st day of November, 1904.
    “Name, D. B. Evans,
    “P. O. Address, Jeannette, Pa.

      “When the above D. B. Evans shall have complied with all the conditions and made all payments for the use of the above machinery, we agree to sell them all our title and interest in same for the sum of one hundred seven dollars and forty cents ($107.40).
    “ (Signed) Jas. H. Link Machineiiy Co.,
    “Per Jas. H. Link.
    “Williamsport, Penna., Nov. 17, 1904.”
    The defendant claimed that it was the understanding of the parties that a sale was intended.
    The court charged in part as follows:
    If there were nothing in this case but the mere contract of November 21,1904, that is, the lease under which the property was transferred to Evans, we would say to you that your ver■dict ought to be for the plaintiff, as we construe this lease. It is the duty, always, of the court to construe written papers. When a paper comes into a suit and it needs construction, it is the duty of the court to construe the paper, and to say whether it is a bailment or a lease or a conditional sale. In this case after reading if over and comparing it with the decisions' in other similar cases, we say to you as a matter of law that this paper is a bailment, that it conferred no title to the property upon Evans when he purchased it. And if that was all there was in this case we would say to you that the plaintiff would be entitled to recover, because the trust company would take no title, for the reason that Evans had no title to the property at the time it was sold. . . . While it is a bailment upon its face, the parties had a right to make a new contract at any time. [1]
    Plaintiff presented these points:
    1. The contract, exhibit “A,” attached to plaintiff’s statement, constitutes a bailment. Answer: That is this contract of November 21,1904. As we have said to you in the general charge, taken and read as a whole, it is a bailment, and would entitle the plaintiff to recover unless it was the understanding of the parties at the time it was entered into that it was to be merely a security for the amount due, and was intended by them not as a bailment but as a bill of sale, or was afterwards modified by the parties in the spring of 1905, by which modification the property was sold outright in lieu of the bailment. [2]
    3. We instruct you as matter of law that charging interest upon the alleged rental, as was done in this case, is incompatible with a bailment, and that it being the undisputed evidence that interest was to be charged under this alleged contract of bailment, and that that interest was represented by the clause added to the agreement after the signature of D. B. Evans, in which the plaintiff in this case agreed to sell all its title and interest in all this machinery for the exact amount of the interest, to wit, 1107.40, this contract is not one of bailment, but a conditional sale, and your verdict must be for the defendant. Answer: Refused. [3]
    4. Under all the law and evidence in this case, your verdict must be for the defendant. Answer: Refused. [4]
    Verdict and judgment for plaintiff. ■ Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      James Balph, with him W. A. Griffith and J. F. McNaul, for appellant.

      George M. Newmyer, with him George B. Lewis, for appellee.
   Per Curiam,

January 3, 1910:

The court properly instructed the jury that the agreement under which the plaintiff claimed title to the machinery for which replevin was brought, was on its face a bailment. Whether at the time the agreement was entered into there was an understanding between the parties to it that there was a sale, and the agreement was intended to secure the price, and whether the agreement had been subsequently modified or superseded were questions properly submitted.

The judgment is affirmed.


text:
    Ferree, Appellant, v. United Storage Company.

      Trusts and trustees — Trust ex maleficio — Attorney at law.

    A bill in equity against an attorney at law for an accounting as to certain shares of stock belonging to plaintiff and bought by defendant at sheriff’s sale, will be dismissed, where there is no evidence that the defendant was at the time of the sale an attorney for the plaintiff in any form, and it appears that the equity in real estate which the plaintiff had contributed to the corporation for his stock was in fact worthless.
    Argued Nov. 4, 1909.
    Appeal, No. 178,
    Oct. T., 1909, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 991, dismissing bill in equity in case of John W. Ferree v. R. A. Balph and the United Storage Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to compel the transfers of shares of stock and for an account.
    Shaeer, J., filed the following opinion:
    The bill is to enjoin the defendant, Balph, from transferring forty-four shares of stock in the United Storage Company, and for an account in regard to those shares and other matters connected with the storage company in which Balph is alleged to be trustee for the plaintiff.
    FINDINGS OF FACT.
    1. In the year 1892, the plaintiff and one Stevenson were in the employ of one William R. Hamilton who was conducting a furniture business in the city of Allegheny, and in that year the plaintiff, Stevenson, and several other parties were endeavoring to form a limited partnership to carry on the furniture business, having in contemplation obtaining the use of a disused cotton mill in Allegheny for the purpose of a furniture sales room and warehouse.

      2. Through Stevenson, Dr. Howard L. Baird was induced to join with Stevenson and Ferree in the purchase of this cotton mill, to be leased to the furniture company, and the property was purchased by Baird from the owners for $80,000, $10,000 in cash and the balance to be secured by purchase money bond and mortgage. Stevenson being unable to pay his share of the cash payment, Baird took two-thirds of the title and paid two-thirds of the $10,000, and Ferree took the other third, paying one-third of the cash payment.
    3. Although plaintiff furnished one-third of the money, he for some reason did not desire to appear in the transaction and he turned over his money to one Robert F. Ramsay, to whom the deed was made and by whom the money was paid to the vendor, and by whom the purchase money mortgage and bond were signed with Baird. Baird knew that Ramsay was in some way holding the title for the plaintiff, but not as to the arrangement between them, or as to who had paid the cash.
    4. A limited partnership was thereupon formed in January, 1893, under the name of Ferree, Stevenson & Company, Limited, of which Ferree and Stevenson, but not Baird, were members, and the cotton mill was leased by Baird and Ramsay to the limited company.
    5. In July, 1896, Dr. Baird became uneasy about his association with Ramsay, in the apparent ownership of the property, and feared that Ramsay, whom he believed to be a man of no property, might become involved and thereby precipitate a sale of the property subject to so large a mortgage, and spoke to James Balph about the matter and it was arranged between them, and apparently Ferree, that Ramsay should convey the title he had to R. A. Balph. A deed was accordingly made by Ramsay to R. A. Balph for the expressed consideration of $1,000, but admittedly a voluntary deed without consideration. This deed was registered in the city of Allegheny on July 8, 1896. The deed having been lost before recorded another deed was procured from Ramsay to R. A. Balph for the consideration of $1.00, which was recorded.
    6. The firm of Ferree, Stevenson & Company, Limited, having made an assignment for the benefit of creditors, and being unable to pay the rent, the building remained unoccupied and the rent unpaid for some time before March, 1898, except that plaintiff occupied a small part of it without paying any rent and used it as a storage warehouse to a small extent.
    7. During the time the building was vacant Baird, with the assistance of James Balph, his attorney, attempted to make a sale of the property but was unable to get an offer sufficient to cover the mortgage, and the property was not at that time worth anything over and above the mortgage securing the bond of Baird and Ramsay. It was then suggested by Ferree, or by Ferree’s use of part of the premises as a storage warehouse, that the whole building might be utilized for storage purposes, and Baird endeavored to organize such a company and induced R. A. and James Balph to agree; to take an interest. Mr. R. A. Balph claims that the first he knew that the property which he held in trust belonged to Ferree was about this time, when negotiations were begun for the formation of this company. The plaintiff claims that Mr. Balph knew long before that he was the real owner of the interest held by Balph. We deem it entirely immaterial to determine which of them is right in this respect, as the ownership of Ferree was fully acknowledged by Balph and the property conveyed according to his direction.
    8. A joint-stock association was formed as a temporary expedient until a charter could be obtained, the articles of association being dated March 28, 1898, and Baird and R. A. Balph conveyed the property to this association. On May 16, 1898, the United Storage Company was incorporated with a capital stock of 500 shares of stock of a par value of $100 each, which was distributed among certain parties, Ferree, however, not Ix'ing mentioned, and shortly thereafter the limited company conveyed the property to the corporation.
    9. The actual basis upon wdiich this corporation was formed and its slock distributed was that Baird and Ferree should contribute the property in question, subject to the mortgage; that the two Balphs should contribute $10,000; that Baird and Ferree should have such share of the $50,000 capital as was represented by the amount of money which each of them had put into the property, with interest, and that the Balphs should receive the rest of the stock for the $10,000 to be contributed by them, together with the agreement that the two Balphs should act as attorneys for the company in the matter of its formation and management. This was somewhat modified by the agreement of Baird to put up one-third of the $10,000 instead of the Balphs. The number of shares thus allotted to the plaintiff was forty-four, representing the amount of money which he had put in, with interest, and this allotment was understood and agreed to by him at the time; his certificate of stock was made out in his name for forty-four shares, which, however, he never took out.
    10. The cash capital and other moneys raised by loans was used in strengthening the building so as to render it fit for storage purposes, the purchase of wagons and other equipment, and the plaintiff was at first employed as manager and continued in that capacity for some time, when he was discharged.
    11. Some time about January, 1900, the plaintiff left the state without informing anyone where he was going, and remained away without informing his family or anyone else of his whereabouts, and remained away over seven years without being heard from by anyone, except as hereafter stated, so that he was by reason of such absence adjudged to be dead and his wife appointed administratrix, and the present suit was begun by her.
    12. Some few months after he went away a constable came to the storage company having' in his hands an execution against Ferree, to inquire about the interest of Ferree in the company, and this fact came to the knowledge of R. A. Balph who made an investigation and sent someone to buy the judgment for the purpose, as he says, of preventing a stranger from coming into the company by a sale of Ferree’s stock. He held this judgment' for about a year, and then, having transferred it to the common pleas, issued an execution and sold Ferree’s forty-four shares 6f stock in the storage company and bought the same in for $57.46.
    13. On March 10, 1904, Ferree wrote to R. A. and James Balph from Chicago inquiring about his stock, as to whether it was worth anything, and requesting that the certificate be sent to him. In answer to this a letter was sent him signed “R. A. and James Balph” in which he was told that the stock had been sold on February 28, 1901, on a judgment of H. A. Thompson, administrator of James C. Thompson, and that the stock had no market value, and that other people had been inquiring about him, and asking whether they should give them his address. To this Ferree replied that they should tell no one anything about his address or his whereabouts.
    14. The present proceeding was begun to January Term, 1908, by the wife of Ferree as his administratrix as above stated, and after an answer had been filed Ferree returned and was under the act substituted for his administratrix and filed the bill, which is substantially the same as that originally filed.
    15. The defendants, R. A. Balph and James Balph above mentioned, are brothers and are members of the bar, and from the time of the admission of the younger of them, about 1878, until after all the matters above referred to had taken place, occupied offices together and held themselves out to the public as partners by the name of R. A. & James Balph, although they were not in fact partners but each carried on his own business, having his own clients and making no division of profits with the other. The connection of each of these gentlemen with the plaintiff as his attorney was as follows: About the year 1892, there was a partition of the estate of plaintiff’s father, and James Balph represented the plaintiff in that transaction, having entered appearance, however, in the firm name, and on one occasion R. A. Balph at the request of his brother James went to a meeting of the heirs on the premises, where they were endeavoring to make a partition, and afterward upon adjustment made among the heirs the plaintiff, who took no land, received a certain sum of money which came into the hands of James Balph, who in December, 1896, transmitted to the plaintiff a check of R. A. & James Balph, with an account of the disposition of the money, including fees, which closed the transaction in regard to the partition.
    In the spring of 1894, James Balph drew an affidavit oí defense for the plaintiff in an action against him on a book account, the appearance being entered in the name of R. A. & James Balph.
    16. James Balph examined the title to the cotton mill property when it was purchased as above stated by Baird and Ferree in Ramsay’s name, and both R. A. & James Balph have been attorneys for the United Storage Company since its formation.
    CONCLUSIONS OF LAW.
    1. The plaintiff claims that upon the above state of facts R. A. Balph is a trustee ex maleficio for John W. Ferree of the forty-four shares of stock above mentioned, as well as any other shares which he may have obtained for the plaintiff’s one-third interest in the cotton mill property, upon the ground as we understand it that he was trustee of the plaintiff’s interest in the land before it was conveyed to the storage company, and that he was attorney for the plaintiff and, therefore, incapable of buying his shares of stock at sheriff’s sale.
    2. A great deal of testimony was taken as to Balph’s holding the legal title to one-third of the cotton mill property. We are quite unable to see what difference it makes what the details of that matter were, as it is admitted on all hands that Balph did not claim any beneficial interest in the property and acted in Ferree’s interest, and, as we have found, he conveyed it according to Ferree’s direction for the issue of forty-four shares of stock to Ferree. Ferree well understood that the forty-four shares of stock was all he was getting for his interest in the cotton mill property, but as this is complained of as being in some way in bad faith on the part of the Balphs it may be observed that this interest of Ferree was really worthless. The property could not at that time be sold for enough to. pay the mortgage, and Ferree received for his one-third the same relative number of shares which Baird received for his two-thirds interest in the property, which were put into the new company for about 132 shares out of 500, as against the $10,000 to be contributed by the Balphs. As we have said, the property was really worth nothing. We see nothing in this transaction of which Ferree has any right to complain, and with this transaction the trusteeship of R. A. Balph as to this property came to an end.
    3. As to the purchase by R. A. Balph of the forty-four shares at sheriff’s sale, we are at a loss to discover any duty resting upon him to refrain from such purchase, or any reason why he should be held to be a trustee of the shares so bought. He was not at that time and had not in any form been an attorney for Ferree, even nominally as partner of his brother, for a long time. Ferree had disappeared, leaving no trace of himself, and his creditors were inquiring about his property. It was natural enough that the other stockholders of the United Storage Company should prefer that the shares, if they were to be sold, should be bought in by one of their number. But, however this may be, as Balph was not attorney or trustee for him in any form for these shares, or in any manner connected with them, he had as good a right to purchase them at sheriff’s sale as anyone else.
    4. The statute of limitations has been set up by defendants in addition to the other matters herein stated. All the matters herein complained of took place much more than six years before the beginning of this suit, and we see no reason why the statute docs not apply.
    The bill must, therefore, be dismissed, with costs to be paid by the plaintiff. Let a decree be drawn accordingly.

      Error assigned was decree dismissing the bill.

      M. H. Stevenson, with him Wm. C. Boyd, for appellant.

      Robert B. Petty, for appellees.
   Per Curiam,

January 3, 1910:

The decree is affirmed at the cost of the appellant on the opinion of the learned judge of the common pleas.


text:
    Safe Deposit & Trust Company, Appellant, v. Mehaffey.

      Equity — Jurisdiction—Accounting—Injunction—Remedy at law.

    A court of equity will not decree an injunction to restrain the mining of coal or an accounting as to coal already mined where the bill shows that no mining has been done for a considerable time and the answer and testimony show that none will be done in the future and where the account demanded is a mere matter of charge with no entries on the other side.
    Argued Nov. 4, 1909.
    Appeal, No. 211,
    Oct. T., 1909, by-plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1907, No. 288, on bill in equity in case of the Safe Deposit & Trust Company of Pittsburg, Trustee under the Will of Alexander Mehaffey, deceased, v. Elizabeth Mehaffey, Executrix and Sole Devisee of the Estate of Charles Mehaffey, deceased, and Elizabeth Mehaffey and Harry W. Hammer et al., partners doing business as Mehaffey Brothers, and H. W. Hammer, manager.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction and accounting.
    Frazer, P. J., filed the following opinion:
    The purpose of the bill in this case was to enjoin defendants from mining coal underlying a farm in North Versailles township, and also to compel an accounting to plaintiffs for coal heretofore mined and sold, and timber removed from the farm in question. From the bill, answer and proofs, we find the following facts:
    FINDINGS OF FACT.
    1. Alexander Mehaffey died March 24, 1886, testate, seized of a farm situate in North Versailles township, containing 140 acres. By his will, dated October 24, 1882, the farm referred to, “except the merchantable coal lying thereunder west of the center line of the Township road laid out through the farm,” was devised to James Evans, trustee, to receive the rents and pay the same to testator’s son, Charles, or his appointee, or at the option of the trustee to permit the son to keep and enjoy the farm during the full term of his natural life, for his own separate use, and not to be liable for his debts, contracts or engagements, the son to pay the taxes exclusive of those on the coal, and make needed repairs and improvements. Upon the death of Charles Mehaffey, the trustee was to hold the farm, exclusive of the coal mentioned for the use of his wife, Elizabeth, upon the same uses and terms, and without any liability for any debts which she may contract; upon the marriage or death of Elizabeth Mehaffey, the trustee was to hold the farm, exclusive of the coal, for the use and benefit of the heirs and legal representatives of Charles Mehaffey, their heirs and assigns. The will also authorized and empowered the executors of testator to sell and dispose of the coal underlying his farms in Allegheny and Westmoreland counties, and reserved as above stated, as soon after his death as in the judgment of the trustee full and fair prices can be had for the same, the proceeds of such sale to be disposed of in accordance with the instructions contained in the will.
    2. James Evans, the trustee, resigned his trust and the Safe Deposit & Trust Company of Pittsburg was appointed his successor on June 2, 1898.
    3. By option and permission of the trustee, Charles Mehaffey occupied the farm from the death of Alexander Mehaffey until the death of Charles on January 13, 1906, and since that date, Elizabeth Mehaffey has had possession thereof, and resided thereon. Charles Mehaffey died testate, and by his will appointed his wife, Elizabeth Mehaffey, his executrix, and gave, devised and bequeathed to her all his property.
    4. Charles Mehaffey left surviving him as heirs at law, Elizabeth Mehaffey, widow, and the following children: Sarah Taylor, James Mehaffey, Frank Mehaffey, John Mehaffey, Charles Mehaffey, Joseph Mehaffey and Clyde Mehaffey; all of whom are at this time of full age. Harry W. Hammer, one of the defendants, is the son of Elizabeth Mehaffey by a former husband, and a half-brother of the remainder-men named above.
    5. This bill was filed April 22,1907, against Elizabeth Mehaffey as executrix and sole devisee of Charles Mehaffey, and Elizabeth Mehaffey, and Harry W. Hammer, James Mehaffey, Frank Mehaffey and Clyde Mehaffey, partners doing business as Mehaffey Brothers, and W. H. Hammer, manager. About sixteen years ago and during his lifetime, Charles Mehaffey made a verbal contract with Harry W. Hammer, one of the defendants, whereby the latter was to open a coal mine on the farm west of the center line of the Township road, and to mine and sell the coal therefrom, and pay to Iris stepfather a royalty of one cent per bushel for clean coal, and three-fourths of a cent per bushel for run-of-mine coal, Charles Mehaffey to find timber for pit-posts, and Hammer to pay for making them. Under this contract a mine was opened and Hammer from time to time took out and sold approximately six and one-half acres of coal, the greater part of which was taken out more than six years ago, and the total amount mined aggregated about 625,000 bushels. Such timber as was required for pit-posts in the mine was cut on the farm, the amount taken aggregating about five acres, worth $60.00 per acre.
    7. Charles Mehaffey built and constructed at the mouth of the pit, a platform and weigh-shanty, and Hammer constructed a tipple. These buildings have been reconstructed from time to time, and remain upon the property.
    8. The mining of the coal and cutting of timber was done openly, and so far as Hammer was concerned was done in good faith without knowledge on his part that Charles Mehaffey did not own the farm and coal, and he accounted to Mehaffey for all coal mined and paid him therefor, and has not made any payment on account of mining such coal, to either the trustee or any of the remainder-men. The fact that coal was being mined from the farm was known to James Evans, trustee, who made no objection. The mining was also known to the children of Charles Mehaffey, all of whom, with the exception of James Mehaffey, and Sarah Taylor, worked in the mine and cut timber from the farm for use in .the mine. No objection was made by anyone to the coal being mined and sold, nor was any demand made upon Hammer for an accounting, until November 27, 1905, when the following notice was served on him:
    “McKeesport, Pa.,
    “ November 23, 1905.
    “Mr. H. W. Hammer,
    “North Versailles Township, Pa.
    “Sir:—
    “You are hereby notified and required to at once cease further operations in the sale and mining of coal in, under and upon the premises lately owned by Alexander Mehaffey, deceased; and also to account within ten days from date hereof, to the Safe Deposit & Trust Company of Pittsburg, Pa., Trustee, for all coal mined by you upon the Easterly side of the Township Road of such tract, otherwise we will proceed against you according to law.
    “John Mehaffey,
    “Joseph Mehaffey,
    “Charles E. Mehaffey,
    “ Remainder-men.”
    9. On February 6, 1905, Hammer purchased from Charles Mehaffey about two and one-fourth acres of the Mehaffey coal lying west of the center line of the Township road, for the consideration of $1,200 and received a deed therefore, made by Mehaffey and his wife, Elizabeth, dated February 6, 1905, and recorded May 10, 1905, the consideration being paid to Charles Mehaffey in full by Hammer. Subsequently, Hammer took out from this tract, twenty-seven wagon loads of coal, and on receipt of the notice of November 23, 1905, immediately ceased operations in any of the Mehaffey coal, and consulted his attorney who advised him not to mine further. From the date of that notice, Hammer did not mine or remove any of the Mehaffey coal, nor has any of it been mined since that time by any other person.
    10. In 1901, Hammer purchased the Hickman coal, which adjoins the Mehaffey coal, and thereupon began mining and removing the same through the entry of the Mehaffey mine, and continued to do so until the bill in this case was filed, whereupon he ceased to use the Mehaffey entry and opened another entry through which he removed the Hickman coal without entering upon the Mehaffey coal or using the entry through it. The Hickman coal was an abandoned mine at the time at which Hammer purchased it. After obtaining the coal, Hammer made several openings connecting the Mehaffey mine with the Hickman.mine. The Hickman coal lay higher than the Mehaffey coal, which caused water gathered in the Hickman mine to percolate through the coal in place on the dividing line between the two farms, into the Mehaffey mine. To avoid such accumulation of water and prevent it flowing into the Mehaffey mine, Hammer at an expense of $400 constructed an outlet by tunneling from a water course into which the Mehaffey mine drained, thus providing a drain through winch the water of both mines was carried off. The roofs of two of the rooms of the Mehaffey mine from which the coal has been removed, have fallen in, rendering access to these rooms impossible except to a short distance. With this exception the mine is in fairly good condition and could be made fit for working within a few days by the expenditure of a very small sum of money.
    11. The testimony of plaintiff indicated that there were depressions upon the surface of the Mehaffey farm at certain points where the coal had been removed, that at the time the bill in this case was filed, the wall of the barn had fallen down in part, and the barn had moved a few inches on its foundation, and also that the fences upon the farm were not in good condition, and that fences separating fields had been removed. As respects the depression, they showed themselves on the surface a number of years ago during the lifetime of Charles Mehaffey. The surface on and over all of the depressions, with one exception, is susceptible to cultivation and had been cultivated. With respect to the depression not cultivated, the testimony showed that it could be plowed over at any time and made tillable. The break in the wall of the barn has been properly repaired by Elizabeth Mehaffey, the life tenant, and the barn straightened, so that it is at the present time in good condition. The fencing at the present time is also in good condition. While it is true one or two fences separating fields have been removed, such removal became necessary in the working of the farm, and cannot be considered waste, the testimony indicating that the change in the lines of fields was for the advantage of the farm. The present condition of the farm is good and equal to the general condition of farms of like character in that neighborhood.
    12. None of the defendants had anything to do with, or are liable for the cutting of timber from the farm, or the mining of coal from it, or the depressions resulting therefrom, except Harry W. Hammer. Nor did any of them, except Elizabeth Mehaffey, have anything to do with the permissive waste.
    13. In 1891, Harry W. Hammer was twenty-seven years of age, and John Mehaffey, Charles Mehaffey and Joseph Mehaffey, three of the remainder-men were all minors, their ages being respectively fourteen, twelve and nine years.
    CONCLUSIONS OF LAW.
    The bill asks that defendants be restrained from further operating the mine on the Mehaffey farm and mining coal therefrom and also asks that they be compelled to account for the coal taken therefrom under the verbal contract with Charles Mehaffey, the life tenant. There seems to be no necessity for an injunction as the bill shows that no mining has been done on the premises since November 23, 1905, and the answer and testimony show that none will be done in the future. Under these facts a case for equitable relief is not made out in this respect. As to plaintiffs’ right to an accounting in this proceeding, we are of opinion they have not shown such conditions as to entitle them to have the amount, if any, due them ascertained here. That matter seems to us to be clearly a matter for determination in an action at law. The account is a mere matter of charge with no entries on the other side, at least none shown by the testimony now before us. Under these circumstances defendants are, in our opinion, entitled to have that matter settled according to the rules of law, and especially is such the case under the circumstances here, where the death of Charles Mehaffey, the statute of limitations, the laches of plaintiff and also the relations existing between the parties at the time will have a great if not a controlling bearing upon the controversy. As we view the case, there is very little equity in favor of plaintiff. Hammer, the real defendant, acted in good faith in making the contract with his stepfather for taking out the coal, and in preparing to do so he was assisted if not controlled by his stepfather. And after the mine was open, he gave employment from time to time to all his stepbrothers, the remainder-men, except one, and he paid to his stepfather- a fair and reasonable price for every ton of coal mined. The trustee and several of the remainder-men, who have been of age for many years stood by and without objection permitted defendant to take out the coal and make payments to Charles Mehaffey during his lifetime, and now that the life tenant is dead and many years have intervened since the waste complained of was committed, if there is any advantage to defendant by a proceeding at law, he is entitled to that benefit. While we are of opinion that the bill might be dismissed without detriment to plaintiff, we will retain it, with leave to plaintiff to move for an injunction should defendants at any time disregard their avowed intentions not to further mine coal from the premises. The prayer for an accounting is refused, without prejudice, however, to plaintiff to institute and prosecute any proceedings at law they may deem necessary to recover any sum or sums that may be due them on account of the injury complained of in the bill.

      Error assigned was the decree of the court.

      G. W. Williams, with him Patterson, Sterrett & Acheson and W. S. Woods, for appellant.

      W. B. Rodgers, with him G. A. Johnson, for appellees.
   Per Curiam,

January 3, 1910:

The decree is affirmed on the opinion of the learned president judge of the common pleas.