author: Mr. Justice Elkin,

text:
    Duff, Appellant, v. Heppenstall Forge and Knife Company.

      Road Law — Streets—City of Pittsburgh — Dedication to public use — Act of June 16, 18S6, P. L. 11$ — Equity—Jurisdiction.
    1. Under the Act of June 16, 1836, P. L. 749, all streets, lanes and alleys within the city of Pittsburgh, if not less than twenty feet in width, which have been laid out, appropriated and opened by private persons for public use or for the use of owners of lots fronting thereon, are part of the public works of Pittsburgh, and the city has complete jurisdiction over them for all purposes.
    2. In an equity proceeding, it appeared that the plaintiff was owner of certain lots abutting on streets originally dedicated to public use by a private owner of the plan of lots, which lots were subsequent to the dedication incorporated in the city of Pittsburgh so that the streets thus dedicated became part of the system of public highways. Portions of these streets after they were taken over by the city were vacated by ordinances duly passed. Plaintiff filed his bill to restrain an adjoining owner from encroaching upon the bed of a street over twenty feet wide, and obstructing passage thereon. Held, that bill was properly dismissed.
    Argued Oct. 25, 1911.
    Appeal, No. 164, Oct. T., 1.911, by plaintiff, from decree of C. P., No. 4, Allegheny Co., Third T., 1910, No. 248, in equity, dismissing bill in case of Levi Bird Duff v. Heppenstall Forge and Knife Co.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to restrain encroachment upon street. Before Swearingen, P. J.
    The plaintiff alleged in his bill that he is the owner of four lots in the plan of the executors of the will of Anna H. Irwin, deceased, by title derived from said executors; that at the time said plan was recorded, all of the streets and alleys in said plan were opened for use to the lot holders and to the public and the lots were conveyed to purchasers by numbers, bounding them by the streets and alleys of said plan, and since that time the lot holders and the public have had free and uninterrupted use of said street and alleys of said plan, and hold their lots subject to such use; that the defendant is the owner of lots 33 to 50 inclusive, and also lots 51 to 69 inclusive, in said plan, and holds said lots subject to the free use of said streets; that the defendant has encroached upon Home Street, by extending its buildings five to ten feet on the east side thereof over the building line and threatens to permanently obstruct and close said street from Hatfield to Valley Streets, and it has occupied with buildings a part of Valley Street and threatens to permanently close Valley Street from Holly Alley to 47th Street; and that the obstructions to and closing of said streets will greatly injure the plaintiff’s property. The plaintiff prayed that the defendant be required to remove the obstructions from said Home and Valley Streets, and that it be enjoined from further obstructing and closing the same.
    It appeared by the defendant’s answer and upon the trial that the City of Pittsburgh, by an ordinance enacted June 24th, 1907, had ordained that Home Street from Hatfield Street to Valley Street, in said plan of the executors of Anna H. Irwin, deceased, be vacated.
    Also that said city, by another ordinance approved June 16th, 1910, enacted that said Home Street from Hatfield Street to Valley Street be vacated, upon condition, however, that the ordinance should not be effective unless the owners of the abutting property should pay $3,000 into the City Treasury within thirty days after its passage, which sum was paid into the City Treasury of Pittsburgh on July 16, 1910.
    Home Street and Valley Street were each fifty feet wide.

      Error assigned was in dismissing the bill.

      Leonard K. Guiler and Levi Bird Duff, with them
      L. B. D. Reese, for appellant.
    — The private easement was not defeated, by the public vacation of the street. Morrow v. Traction Co., 219 Pa. 619; Garvey v. Refractories Co., 213 Pa. 177; Jessop v. Kittanning Boro., 225 Pa. 583; People’s Nat’l Bank v. Liquid Car Co., 226 Pa. 503; Quicksall v. Phila., 177 Pa. 301; Carroll v. Asbury, 27 Pa. Super. Ct. 354; Black v. Railway Co., 34 Pa. Super. Ct. 416.

      W. S. Dalzell, for appellee.
    — The Legislature has power to vacate a public street without consent of those interested, and without providing for compensation. Paul v. Carver, 24 Pa. 207; In re Opening of Pearl Street, 111 Pa. 565; Smith v. Union Switch & Signal Co., 17 Pa. Super Co. 444; McGuire v. Wilkes-Barre, 36 Pa. Superior Ct. 418.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

The learned court below has -given this case such full and intelligent consideration that but little need be said in reviewing it. Appellant is the owner of certain lots abutting on streets originally dedicated to public use by a private owner of the plan of lots. Subsequent to the dedication the plan of lots was incorporated in the city of Pittsburgh and the streets thus dedicated became part of the system of public highways. Portions of these streets after they were taken over by the city were vacated by ordinances duly passed. Appellant contends that the vacating ordinances are invalid because the streets in question never were public highways, and the city therefore had no power to vacate them. The learned court below did not agree with this contention and we concur in the conclusion of the lower court upon this branch of the case. But, assuming that the vacating ordinances are valid, appellant further contends that the vacation of portions of the streets as public highways cannot affect his right as an abutting owner of lots on the streets originally dedicated to have the same kept open, for the use and benefit of the lot owners. It is not necessary in the disposition of this case to discuss what the general rule is or should be in snch cases. In the case at bar we have to do only with streets in the city of Pittsburgh and the declared statutory policy of the law relating to the same. The act of June 16, 1836, P. L. 749, provides as follows: “All streets, lanes and alleys within the City of Pittsburgh, if not less than twenty feet in width, which have been laid out, appropriated and opened by private persons for public use or for the use of owners of lots fronting thereon, or which shall be, being of not less than twenty feet in width, hereafter laid out, appropriated and opened as aforesaid, shall for every purpose be deemed, taken and be public highways, as fully as the other public streets within the said city.” In passing upon this question the learned court below said: “As before stated, the act of 1836 is explicit that streets, in plans of private persons, which are of a certain width and have been opened, shall be public highways. This is not simply a declaration that such streets should be public highways; the statute goes much further. It enacts that such streets shall be public highways ‘as fully as other public streets within the said city,’ and, not merely for some purposes, but ‘for every purpose.’ ” What is the meaning of these expressions? They must have been added for some reason. Their use was not necessary to effectuate the purpose of making such streets public highways. That had already been done by appropriate language. To our mind the plain intent of this statute was to abolish all distinctions between streets in Pittsburgh, between those of the city itself and those in private plans, which were above twénty feet in width and were opened to the public use. This was a declaration by the sovereign that thereafter the opened streets of a private plan were to be part of the public works of Pittsburgh, as much so as if the city itself had located and opened them to public use. Such streets were, therefore, public highways and the City of Pittsburgh had complete jurisdiction oyer them for all purposes, which the Legislature might commit to it.” We think the learned court below properly interpreted the statute and that it was the intention of the legislature in passing the act in question to abolish distinctions as to streets in the City of Pittsburgh. In other words, it was thus declared as a policy of the law, that streets of the designated width, dedicated to public use by a private owner, should be treated upon the same basis as other streets opened, improved and maintained by the city itself. This means that all streets in said city, those dedicated by a private owner as well as those opened by ordinance, are subject to the control and supervision of city councils. They may be widened, improved or vacated in the manner provided by law when the necessities of the city so require. All subsequent purchasers of lots included in the original plan took title with notice of the declared statutory policy of the law relating to the public highways of the city of Pittsburgh after the passage of the act of 1836. The legislature representing the sovereign authority of the State had the power to declare what streets shall be deemed public highways and what control and supervision shall be exercised over them. It exercised the power by passing the act of 1836 and this is binding upon the public, the municipal authorities and the private lot owners. We agree with all the conclusions reached by the learned court below and think the bill was properly dismissed.

Decree affirmed at cost of appellant.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Borland’s Appeal.

      Partnerships — Accounting—Decedents’ estates — Petition for review — Laches—Statute of limitations.

    1. Where an administrator c. t. a. of the surviving partner of a firm originally consisting of five members, files an account of the firm’s assets, and such assets are distributed by the court after reference to an auditor, the widow and children of one of the ©riginal partners have no standing to maintain a bill of review to open the decree confirming the auditor’s report, where it appears that at the time of the death of the husband and father of the petitioners, he was indebted to the firm; that this indebtedness was carried on the books of the firm for some time, and finally charged to profit. and loss; that notice in writing was given to his widow and to his administrator of this indebtedness without any reply from them; that among the papers of the firm there came into the possession of the administrator c. t. a. who filed the account, a paper described as an agreement between the petitioners’ decedent and the decedent of the administrator c. t. a. and further described as “notice of dissolution;” that this agreement was subsequently lost; that the two decedents were not interested together in any other venture; and that the petitioners did not file their petition for review until twenty-six years after the death of the decedent and four years and nine months after the absolute confirmation of the report of the auditor.
    2. In such a case the petitioners are also barred by the statute of limitations, inasmuch as the statute closes upon partners who for six years after dissolution take no steps to ascertain the balance between them.
    Argued Oct. 26, 1911.
    Appeal, No. 168, Oct. T., 1911, by Katharine B. S. Borland et al., from order of O. P., No. 2, Allegheny Co., July T., 1905, No. 326, dismissing petition for review in account of The Fidelity Title and Trust Company, Administrator, c. t. a., of the Estate of James M. Bailey, deceased, surviving partner of Phillips, Nimick and Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Petition for review. Before Frazer, J.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal of review.

      Morton Hunter, for appellants.
    — A partnership proved to exist is presumed to continue. Cooper v. Dedrick, 22 Barb. 516; Rhone v. Gale, 12 Minn. 54; Innis v. Campbell, 1 Rawle, 373; Smith v. Knowlton, 11 N. H. 191; Cresson’s App., 91 Pa. 168.
    The estate of David Borland, deceased never lost its interest in the partnership property. Kitchen v. Smith, 101 Pa. 452.
    The real estate of the partnership when no longer needed in the business of the partnership nor for payment of debts or the settlement of partnership accounts becomes the real estate of the late co-partners held by them as tenants in common. Haeberly’s App., 191 Pa. 248; Foster’s App., 74 Pa. 391.
    As the Appellants were entitled to participate in the distribution of the fund being the balance in hands of the Accountant and no actual notice was given to them of the proceedings and they were not made parties to the proceedings the distribution is a nullity as to them. Dunklin v. Harvey, 56 Ala. 181; White’s Estate, 163 Pa. 388; Messinger v. Kintner, 4 Binn. 97; Mitchell v. Kintzer, 5 Pa. 216; Biddle v. Tomlinson, 115 Pa. 299; Grim’s App., 109 Pa. 391; Hambleton v. Yocum, 108 Pa. 304; Nimick’s Est., 179 Pa. 591; Young’s App., 99 Pa. 74; Yeager’s App., 34 Pa. 173; Michigan v. Phoenix Bank, 33 N. Y. 9.
    Lapse of time in applying for a review no bar where ground of the application is fraud. Breden v. Gilliland, 67 Pa. 34; Pantall v. Dickey, 123 Pa. 431; King v. Brooks, 72 Pa. 363; Monroe v. Monroe, 93 Pa. 520; Heffner v. Gunz, 29 Minn. 108 (12 N. W. Repr. 342); Lee v. O’Shaughnessy, 20 Minn. 173; Feikert v. Wilson, 38 Minn. 341 (37 N. W. Repr. 585); Blennerhassett v. Day, 2 Ball & Beatty 104.
    The statute does not run when the account is open and current. McKelvy’s App., 72 Pa. 409; Nimick’s Est., 179 Pa. 591; Thompson v. McGaw, 2 Watts 161; Yorks’s App., 110 Pa. 69.

      Richard H. Hawkins, of Dalzell, Fisher & Hawkins, with him John E. McCalmont, for appellees.
    — “A chancellor’s finding of fact that no partnership existed * * * when based upon sufficient evidence, will not be reversed by the Appellate Court in the absence of manifest error.” Sears v. Scranton Trust Co., 228 Pa. 126; Ricketts v. Capwell, 228 Pa. 268; Lehigh Valley Coal Co. v. Lentz, 228 Pa. 346; Bierly v. Sener, 228 Pa. 289; Myers v. Coal Co., 228 Pa. 444.
    The account audited in the 1905 cannot be reviewed. Russell’s App., 34 Pa. 258; Priestley’s App., 127 Pa. 420.
    The Borlands had legal and constructive notice of the account filed and proceedings had in 1905. Weber v. Samuel, 7 Pa. 499; App v. Dreisbach, 2 Rawle 287; Coates’ Est., 2 Parsons 258.
    The rights in the representatives of David Borland to any share in the partnership assets accrued in 1884, and the statute of limitations barred their rights in six years. Riddle v. Whitehill, 135 U. S. 621 (10 Sup. Ct. Repr. 924); Knox v. Gye, L. R. 5 H. L. 656.
    The Pennsylvania rule, to the effect that a right for an accounting may be demanded immediately after the death of a partner by his representatives and that as the right accrues then it is barred by the statute of limitations in six years from the date of the death, is announced in: Guldin v. Lorah, 141 Pa. 109; McKelvey’s Appeal, 72 Pa. 409; Hamilton v. Hamilton, 18 Pa. 20.

      January 2, 1912:
   Opinion by

Mr. Justice Brown,

In 1873 the firm of Phillips, Nimick & Company was formed for the purpose of manufacturing iron and steel. Its members were William K. Nimick, Alexander Nimick, James M. Bailey, David Borland and Hugh McDonald. McDonald subsequently transferred his interest in the partnership to the other four members of the firm. William K. Nimick died in 1875, but, by special agreement, his estate continued his interest in the partnership, and in 1887 Charles E. Speer, trustee under his will, transferred that interest in pursuance of an order of the Orphans’ Court to Alexander Nimick and James M. Bailey. David Borland died intestate March 3, 1884, and his administrator wound up his estate by filing a final account. Alexander Nimick executed a deed of assignment for the benefit of creditors in 1891 and died in 1898. James M. Bailey died in 1903. In May, 1905, The Fidelity Title and Trust Company filed its account as administrator c. t. a. of Bailey, surviving partner of the firm of Phillips, Nimick & Company. This account was referred to an auditor for distribution of the assets in the hands of the administrator, amounting to $108,568.83, and these were distributed equally between the surviving trustee under Alexander Nimick’s deed of assignment and the trustees under the will of James M. Bailey, the auditor having found that, by various assignments, the other three original interests in the partnership had been transferred to and become vested in James M. Bailey and Alexander Nimick. The report of the auditor was confirmed absolutely on October 19, 1905, and distribution was thereupon made by the accountant. On July 27, 1910 — more than twenty-six years after the death of David Borland and four years and nine months after the absolute confirmation of the report of the auditor distributing the balance in the hands of the appellee as administrator c. t. a. of Bailey, surviving partner of the firm of Phillips, Nimick & Company— the widow and children of Borland presented their petition to the court below, asking that the decree confirming the report of the auditor be opened to enable them, or the estate of their decedent, to participate in the distribution of the assets admitted by the accountant to have been in its hands as the representative of Bailey, the surviving member of the firm. Two material averments in the petition were that no settlement had ever been made for the partnership share or interest of David Borland in the firm of Phillips, Nimick & Company, and the petitioners had no notice of the filing of the account by the administrator of the surviving partner or of the distribution made by the auditor until July 15, 1910.

If David Borland was a member of the firm of Phillips, Nimick & Company on March 3, 1884, it was dissolved that day by his death; but it is by no means certain that he was a partner at the time of his death. On the contrary, it appears that when he died he was indebted to the firm in the sum of $900, which was carried on the books for some time and finally charged to profit and loss. Notice in writing was given to his widow and to his administrator of this indebtedness, but there was no reply from either of them intimating that there was an unsettled partnership account. This is not to be overlooked when now, after a lapse of more than twenty-six years from Borland’s death, his widow and children for the first time insist that he was a member of the firm at the time of his death. If he had been, it was the right of his administrator to call upon the surviving members at any time within six years for an accounting; but the administrator did nothing at all indicating a belief, either by himself or by the widow and children of the deceased, that he had continued, up to the time of his death, to be a member of the firm. During all the more than twenty years following the six years after his death not a thing was done nor a word spoken by his administrator or his widow and children which even intimated that they regarded him as having been a member of the firm at the time of his death. It does not consist with human experience that the widow and children would have held their peace for more than a quarter of a century if they believed the husband and father had continued to be a partner until his death and would have waited until this late day to claim a portion of the partnership assets. Increased doubt as to Borland’s membership in the firm at the time of his death grows out of the testimony that among the papers of Phillips, Nimick & Company that came into the possession of the appellee was an “agreement between David Borland and J. M. Bailey, and notice of dissolution.” This agreement was lost, and the court below, though not having the benefit of its contents, assumed that it related to the affairs of Phillips, Nimick & Company, as it was among the papers of that firm, and it did not appear that Borland and Bailey were interested together in any other business venture. Commenting on the testimony as to this lost agreement, a conclusion of the learned chancellor, not assigned as error, is as follows: “Standing alone it would not be sufficient to establish the transfer, but considered in connection with the delay in making claim, especially for five years after the death of the last surviving member of the firm, and twenty-six years after the death of Mr. Borland, it is at least sufficient to make the claim quite doubtful. If Mr. Borland did not part with his interest in the firm why did not his administrator demand a settlement of the firm’s affairs, or why did his heirs remain silent for twenty-six years after his death? The extreme laches on their part has not been satisfactorily explained. The law does not look with favor on stale claims, and in view of the fact that petitioners had at least constructive notice of the filing of the account of the Fidelity Title and Trust Company, and of the hearings before the auditor, together with the lapse of twenty-one years between the death, of Mr. Borland and the filing of the account without any demand for an accounting, we are of opinion that this request for a review comes too late.”

The appellants may not have had actual notice of the filing of the appellee’s account, nor of the report of the auditor making distribution, but they had constructive notice of each, for such notice was given by due legal advertisement, and this was sufficient: App v. Dreisbach, 2 Rawle, 287; Priestley’s Appeal, 127 Pa. 420; Ferguson v. Yard, 164 Pa. 586.

The relief asked for by the appellants, after the unusually great lapse of time in presenting their petition for it, could not have been granted by the court below unless there was first clearly established the membership of the deceased in the firm at the time of his death. This fundamentally material fact was not so established, and the petition was properly dismissed for the reason stated in the above quoted extract from the opinion of the court.

An additional reason given by the court below for dismissing the petition is that the statute of limitations bars the relief sought. Under the facts as developed, this was not error. There was no proof that Bailey had ever held himself out to the appellants or to any one else as a liquidating partner, having partnership assets in his hands, to a portion of which Borland’s estate would be entitled on an accounting. • On the contrary, everything done by him and Alexander Nimick subsequently to Borland’s death was inconsistent with the admission of their partnership with him at the time of his death and was in hostility to the claim now made by his widow and children. The statute, therefore, ran from his death. “And in reason and justice, why should not the statute close upon partners, who, for six years after dissolution, take no steps to ascertain the balance between them? On what principle should such an account remain open for all time? As soon as dissolution takes place, they stand no longer in any relation of trust or confidence to each otter — the implied authority given by each to the other ceases, and they are no longer agents one for the other; and the objects of their association having come to an end, the time for a settlement has arrived. Six years is a fair time to allow for closing their affairs, and is a reasonable time for demanding a settlement as in an analogous case:” McKelvey’s Appeal, 72 Pa. 409. Other cases recognizing this rule are Hamilton v. Hamilton’s Executors, 18 Pa. 20; Guldin v. Lorah, 141 Pa. 109; Garretson v. Brown, 185 Pa. 447.

Appeal dismissed at the costs of appellants,


author: Mr. Justice Stewart,

text:
    Young’s Estate.

      Promissory notes — Husband and wife — Principal and surety.— Act of May 16, 1901, P. L. 191f.

    1. Where a bank discounts a promissory note executed by a wife to the order of her husband and endorsed by the husband, with knowledge that the wife is a surety, and upon the husband’s lunacy takes from the wife for the same debt a new note made by the wife, and endorsed by the latter’s sister, and, after several renewals thereof, the sister dies, the administrator of the sister cannot resist payment of the note on the ground of the invalidity of the original note as against the wife. In such a case the bank is entitled to the protection afforded by the 57th and 66th Sections of the Act of May 16, 1901, P. L. 194, relating to negotiable instruments.
    2. When a new debtor is substituted by way of novation for the original debtor there is a sufficient consideration for the new debtor’s note as for his own debt.
    3. The endorsement of a promissory note implies a guaranty by the endorser that the maker was competent to contract in the character in which by the terms of the note he purported to contract. The endorser cannot set up the incapacity of the maker for the purpose of defeating his own liability.

      Argued Oct. 26, 1911.
    Appeal, No. 165, Oct. T., 1911, by Mary Emma Vincent, Administratrix, from decree of O. C. Allegheny Co., Nov. T., 1910, No. 141, dismissing exceptions to adjudication in Estate of Parthenia Young, deceased.
    Before Brown, Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Hawkins, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned among others was in dismissing exceptions to the adjudication.

      George H. Rankin, for appellant.
    The endorser of a void note is not liable thereon. Southern Loan Co. v. Morris, 2 Pa. 175; Unger v. Boas, 13 Pa. 601.

      W. T. Tredway, for appellee,
    cited Leonard v. Draper, 187 Mass. 536 (73 N. E. Repr. 644).
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

The note which gives rise to this controversy was the last of series of renewals, all of like tenor, with the same maker and endorser on each. The maker was a married woman; the endorser, a single woman, who has since died. It is against the estate of the latter, now in process of distribution, that demand is made for payment of the note. The transaction had its origin back in October 1903, when the East End Savings and Trust Company, appellee, discounted a note drawn by Emma Vincent payable to the order of Reed M. Vincent, and by the latter endorsed, for $2,000, with full knowledge of the fact that maker and endorser of the note were husband and wife, and that while the wife appeared as maker of the note, she was in point of fact surety. The proceeds of the note were passed to the credit of the husband on the books of the bank. This note was renewed from time to time, the last renewal on which the husband appeared bearing date 16th January, 1907. Before maturity of this last renewal Reed M. Vincent was adjudged a lunatic. Upon its maturity the bank required of Mrs. Vincent that she either deposit collateral or furnish a satisfactory endorser. To meet this demand she gave a new note in which she was maker and her sister, Parthenia Young, endorser, This note so endorsed was regularly renewed, the last renewal bearing date 11th January, 1909. Before its maturity Parthenia Young died. The note having been protested, it is now presented for payment out of the latter’s estate. That the bank is a holder in due course, for value cannot be disputed. When it accepted the first note drawn by Mrs. Vincent with Parthenia Young as endorser, it surrendered the obligation on which Reed M. Vincent was bound, thereby parting with a security it had, and by accepting the new note it extended the time of payment for Mrs. Vincent. It is well settled that when a new debtor is substituted by way of novation for the original debtor, there is a sufficient consideration for the new debtor’s note as for his own debt, 7 Cyc. 702. The fact that originally the debt was that of the husband of Mrs. Vincent and not enforceable at law against her, puts no different aspect on the case. A moral obligation rested on Mrs. Vincent to pay the debt as she had contracted to do. Her legal exemption from liability was a personal privilege of which she might or might not choose to avail herself. Leonard v. Duffin, 94 Pa. 218, Rathfon v. Locher, 215 Pa. 571. It follows that when the first note was given with Parthenia Young as endorser, a consideration moved directly to Mrs. Vincent in the extension allowed her to redeem her moral obligation. The bank then being the holder in due course, for value, is entitled to the protection which our Act of May 16, 1901, P. L. 194, relating to negotiable instruments gives. By the 57th section of that act it is provided that “a holder in due course holds the instrument free from any defect of title of prior parties, and free from defense available to private parties among themselves, and may enforce payment of the instrument for the full amount against all parties liable thereon. And by the 66th section it is provided, that every unqualified endorsement shall be held to warrant, (1) that the instrument is genuine and in all respects what it purports to be, (2) that the endorser has a good title to it, and (3) that all prior parties had capacity to contract. The effect of the statute is to shut off all such defense as is here set up. In so deciding we are in accord with the decisions in other states where like statutory provision governs. In Erwin v. Downs, 15 N. Y. 575, it is held that “the endorsement .of a promissory note implies a guarantee by the endorser, that the makers were competent to contract in the character in which by the terms of the paper they purported to contract, and knowledge by one who became the holder of such a note before maturity and for a valuable consideration that the makers were married women, does not deprive him of the right to rely upon the implied guaranty of the endorser that the makers were competent to contract as parties, nor of the character of a bona fide holder.” In Binney v. Globe National Bank, 150 Mass. 574, it is held that “while a promissory note between husband and wife is void between the original parties, an endorser when sued on the contract between him and his endorsees is not at liberty to deny the validity of the original note, or the capacity of the maker, for the purpose of defeating his or her liability.” The views expressed in these cases as to the purpose and effect of the statute rest upon the plain language of the act itself, which admits of no other construction. Their application to the case in hand is too obvious to call for discussion. The order and decree of the Orphans’ Court awarding payment of the note out of the estate of Parthenia Young is affirmed, and the appeal is accordingly dismissed.


text:
    Steinberg v. Eagan, Appellant.

      Appeals — Assignments of error — Multiplicity of assignments.

    1. Assignments of error should not he unnecessarily multiplied. They should he restricted to the important and controlling questions involved in the controversy.

      Partnership — Accounting—Equity — Decree — Distribution of assets.

    2. Where on a bill in equity for a partnership accounting it appears that certain partnership assets were to go on dissolution to the plaintiffs, if the defendant cancelled the agreement, it is improper for the court in the decree awarding an accounting and referring the matter to an auditor to decree that, the defendant having cancelled the agreement, the assets belonged to the plaintiffs. Such a decree could not be made before the payment of the partnership debts and costs of dissolution, inasmuch as there are no assets for distribution until such debts and costs are paid.
    Argued Oct. 26, 1911.
    Appeal, No. 172, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 85, on bill in equity in case of Jacob Steinberg and Katy Steinberg, his wife v. J. H. D. Eagan.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Decree modified.
    Bill in equity for a partnership accounting. Before Shafer, J.
    Prom the record it appeared that under the partnership articles the assets specified in the decree were to become the property of the plaintiffs if the defendant cancelled the agreement.
    The court found as a fact that Eagan, dissolved the partnership.
    The court entered a decree the material portions of which were as follows:
    First: That a partnership existed between the said J. H. D. Eagan and the said Jacob Steinberg and Katie Steinberg, as provided in the articles of agreement attached to and made part of plaintiff’s Bill of Complaint.
    Second: That the said partnership was dissolved by the act of the defendant, J. H. D. Eagan, on the 13th day of July, 1910.
    Fourth: It is further decreed that all of the patents, equipment, unfilled orders on hand, stock of material, finished product or product in process of completion, which belonged to the said partnership at the time of its dissolution, July 13th, 1910, become the property of the plaintiffs, Jacob and Katie Steinberg, in the liquidation of the said partnership.
    Fifth: It is further decreed that C. W. Reamer, Esq., be and he is hereby appointed auditor to state an accounting between the parties in accordance with the terms and conditions of the article of agreement attached to plaintiffs’ Bill of Complaint.

      Errors assigned were various findings, conclusions and rulings, and the decree of the court.

      Andrew G. Smith, for appellant.

      E. E. Fulmer, for appellees.
    January 2, 1912:
   Opinion by

Mr. Justice Elkin,

This is a case in which counsel should be reminded that the unnecessary multiplication of assignments of error does not add strength to an appeal. The questions involved are simple and free from legal complications. There are forty-four assignments when three or four would have answered every legitimate purpose of the case. This practice is not to be encouraged and we call attention to it now so that counsel hereafter may exercise greater care in this respect. The errors assigned should go to the important and controlling questions involved in the controversy. The bill asks for an accounting and this was decreed. The complaint is that an accounting was not only directed but that the manner of making it was also decreed. It is true that in the fourth paragraph of the decree all patents, equipment, unfilled orders, materials and finished product on hand or in process of completion, belonging to the partnership at the time of its dissolution, were adjudged to be the property of appellee. This order must be understood to have reference to property left after the payment of the partnership indebtedness. All of the partnership assets without reference to which partner contributed the same, or from whence they may have been derived, are held subject to the payment of the partnership debts. Until the debts are paid there are no assets for distribution. But after payment of the indebtedness and the costs of dissolution are provided for, the property will be divided among the partners according to the terms of the partnership agreement. The auditor is to make an accounting in accordance with the terms of the article of agreement made by the parties at the time the partnership was formed, and whatever property is left after paying partnership debts and the costs of dissolution belongs to appellees as stated in the fourth paragraph of the decree. But title to this property does not pass to appellee until all partnership debts and costs are paid and the business is finally wound up. The auditor will so understand Ms duty in making an accounting. The decree will be modified to this extent.

With the modification indicated decree is affirmed, costs to be paid out of the partnership funds.


text:
    Barr’s Petition.

      Trusts and trustees — Interest on trust funds — Father and son— “Advancements.”

    Where a father assigns to a trustee together with other personal property a number of promissory notes made by two of his ¡sons with directions to pay “the net -income of said properties,” to the grantor and his wife and the survivor during their lives, and upon their death, after charging the two sons who had made the notes “as in the case of advancements, the sums due from them specified above, or so much thereof as shall not have been paid,” to divide the properties held by him in trust among the grantor’s six children, the promissory notes carry interest until the death of the surviving parent, and upon the final distribution of the estate the shares of the two sons who had made the notes are chargeable with all unpaid interest on the same.
    Argued Oct. 26, 1911.
    Appeals, Nos. 174, 213, 214 and 215, Oct. T., 1911, by Ella P. Barr et al., from decree of C. P. No. 2, Allegheny Co., July T., 1906, No. 16, awarding distribution on petition of Charles W. Smith.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for appointment of an auditor, and for distribution of a trust estate.
    Exceptions to report of Arthur L. Over, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were decree of the court and in dismissing exceptions to report of auditor.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, for appellants.
    — The deed of trust intended these debts to create income and contemplated their payment, but, so far as not paid, charged them, in the division, to the debtors “as in the case” of advancements.
    Thus, the debtors’ shares were made the exclusive source of payment, but there was no remission of the interest: Daves v. Haywood, 54 N. C. 253; Horwitz v. Norris, 60 Pa. 261; Dean v. Winton, 150 Pa. 227; Yundt’s App., 13 Pa. 575.

      John D. Meyer, for appellees.
    — It is an acknowledged principal of law in this State that the debt of a child to his parent, by the act of the parent, may be changed from a debt to an advancement: Porter’s Appeal, 94 Pa. 332; Green v. Howell, 6 W. & S. 203.
    • It seems to be settled law in this State that an advancement does not bear interest unless it was the intention of the parent clearly and unequivocally expressed that the advancement was to be charged with interest, and its value to be reckoned as of the date of the gift: Miller’s Appeal, 31 Pa. 337; Farnum’s Est., 176 Pa. 366.
    January 2, 1912:
   Opinion by

Mr. Justice Brown,

On September 5, 1893, Joseph Smith, Jr., assigned to Hugh D. Smith, in trust, certain personal property, included in which were the following items: A note of Smith, Bartlett & Company, dated November 3, 1892, for $13,000, payable one day after date to the order of Joseph Smith, Jr., with interest at eight per cent, per annum, upon which there was paid about the sum of $5,974.28; two notes of Charles W. Smith to the order of Joseph Smith, Jr., payable one day after date, one for $400, bearing date March 4, 1885, and the other for $90, dated August 2, 1885; a note of Alex. B. Smith, dated January 6, 1893, payable to the order of Joseph Smith, Jr., on demand, for $3,150; sundry small notes and accounts due by Alex. B. Smith to Joseph Smith, Jr., amounting to about $350. Charles W. Smith and Alex. B. Smith were sons of Joseph Smith, Jr., and the former was the only responsible member of the firm of Smith, Bartlett & Company. After a direction to the trustee to sell any of the securities or obligations for the purpose of discharging certain specified indebtedness of Joseph Smith, Jr., there are the following provisions: “After the payment of said debts, said trustee shall pay to Joseph Smith, Jr., or to Elizabeth S. Smith, his wife, as he, in his descretion shall deem best, the net income of said properties, during the natural lives of said Joseph and Elizabeth Smith; and upon the death of either, the im come shall be paid to the survivor during his or her natural life. Upon the death of both, said Joseph Smith, Jr., and Elizabeth S. Smith, said trustee, after charging to Charles W. Smith and Alex. B. Smith, as in the case of advancements, the sums due from them specified above, or so much thereof as shall not have been paid, shall divide the properties held by him in trust, into six equal parts.” There then follow the names of the parties who are to receive these distributive shares. Joseph Smith, Jr., died July 8, 1902, and Elizabeth, his wife, on January 12, 1907. An auditor was appointed in the court below to distribute the assets remaining in the hands of the present trustee, the Union Trust Company of Pittsburgh, which succeeded to the trust upon the death of Hugh D. Smith on April 3, 1906, and from the decree of distribution, which relieved the sons, Charles W. and Alex. B. Smith, from paying any interest on their obligations prior to the death of their mother, these appeals were taken.

The manifest purpose of Joseph Smith, Jr., in executing the deed of trust was the preservation of his estate and the creation of income for himself and wife during life. The only income that could have been derived from the promissory notes of the two sons above enumerated was interest upon them. They were part of what their father in his deed of trust called “property”, and his directions were that “the net income of said properties” should be paid to him and his wife during their joint lives and to the survivor upon the-death of the other. The obligations of the sons were thus expressly charged with the creation of income when they passed to the trustee, and income from them could be nothing but interest upon them. As still further illustrating the intention of the father that the sons should pay interest to the trustee upon their obligations is the provision that, upon the final distribution of the estate, there should be charged against the sons so much upon their specified obligations as should not have been paid. If the father did not intend that these obligations should bear interest for the purpose of furnishing income to him and his wife, he certainly would not have contemplated that the sons would pay anything on them, for, upon whatever they might so pay, they would lose interest during the continuance of the trust. If the intention of Joseph Smith, Jr., as gathered from the entire declaration of trust, and not from a particular phrase in it, without reference to the context, is clear that his sons shall pay interest, they must be charged with the same on the distribution of the assets in the hands of the trustee, for they are mere volunteers and must take the bounty of their father upon the terms in which he bestowed it: Eichelberger’s Estate, 135 Pa. 160.

To avoid the payment of the interest which the father clearly intended his sons should pay, they point to the clause in the declaration of trust which provides that, upon the death of himself and wife, the trustee shall charge the sons, as in the case of advancements, with the sums due by them upon their obligations. It is to be noted in passing that advancements may be charged with interest, and will be so charged if the intention of the testator is clearly so expressed: Miller’s Appeal, 31 Pa. 337; Porter’s Appeal, 94 Pa. 332; Farnum’s Estate, 176 Pa. 366. But upon this we need not dwell in the case before us, for the father did not declare that what he had lent to his sons should be deemed and treated as advancements by him to them. In Porter’s Appeal, supra, relied upon to sustain the view of the court below, the words of the testator relating to the notes of his son and two daughters were, they “are deemed by me as advancments to the respective drawers thereof.” The will was artistically drawn, evincing an accurate knowledge of technical terms, and it was, therefore, held that the testator was conclusively presumed to have employed the term “advancements” in its strict legal sense and had turned the notes of his children in unmistakable phrase into gifts to them, to be valued as of their respective' dates. In the present case Joseph Smith did not declare that he deemed the amounts due on the obligations of his sons as advancements to them, nor did he direct that they should be so treated on the final distribution of the trust estate. As already shown, he regarded them as debts from which he was to derive income for himself and wife. Such declaration on his part would not, of course, have made the obligations debts of the sons, if barred by the statute of limitations or they were uncollectible for any other reason; but in creating the trust he had the right to treat them as debts, and the sons claiming under that trust must, therefore, regard them as valid obligations. All that the father provided in the clause upon which the sons now rely for immunity from paying interest was that, upon the final distribution of what might remain of the trust estate, the sons should be charged “as in the case of advancements” with the sums due from them, as specified in the declaration of trust. This means nothing more nor less than that what they owed upon the death of their mother, as specified in the declaration of trust, principal and unpaid interest, should be counted as part of the corpus of the estate, and the amount due by each son deducted from his share. On the obligations of Alexander, payable on demand, interest is chargeable from the day the father declared them to be part of the property from which income was to be derived, and the son, now claiming a distributive share under the declaration of trust, must take it cum onere. If he refuses to so take it, he can get nothing, for he is a mere volunteer. He must take it as his father gave it to him in the declaration of trust, or not at all.

The decree of the court below is reversed and the record remitted, that distribution may be made in accordance with the views herein expressed, the costs on these appeals to be paid out of the fund in the hands of the trustee.


text:
    George, Appellant, v. Safe Deposit & Trust Company of Pittsburgh.

      Tenants in common — Mother and daughter — Administrator’s sale — Estoppel.
    Where an intestate leaves to survive him a widow and daughter, and his lands are sold at an administrator’s sale for the payment of his debts; and the widow buys them at the sale, the daughter cannot after her mother’s death claim an interest in the land against her mother’s will, (as the heir at law of her father), where it appears that the daughter saw her mother purchase the property and pay the purchase money; that she acquiesced in her mother’s ownership of it for ten years, until her mother’s death; that she accepted an annuity derived from the property under her mother’s will for a period of ten years; and that she never offered to reimburse her mother for money paid by the latter on the purchase of the property, and never offered to return to her mother’s estate the annuity which she had received for ten years.
    Argued Oct. 26, 1911.
    Appeal, No. 176, Oct. T., 1911, by plaintiff from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1908, No. 815, for defendant non obstante veredicto in case of Mary E. George v. Safe Deposit and Trust Co. of Pittsburgh, Trustee, etc., et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in the Fifth Ward of the City of Pittsburgh.
    At the trial the jury returned a verdict in favor of plaintiff. On motion for judgment for defendant non obstante veredicto. Haymaker, J., filed the following opinion:
    This is an action in ejectment for two lots of ground in the Fifth Ward of the City of Pittsburgh, being numbered 20 and 21 in Block 11 of the Plan of Lots of Elizabeth F. Denny, recorded in this County in Plan Book, Yol. 6, page 178, on which are erected seven brick dwelling houses. On the trial of the case we directed a verdict for the Plaintiff:.
    The common source of title was that of Andrew Mulholland, the Plaintiff’s father. The statement of the case is practically this: Andrew Mulholland died intestate on the sixth day of September, 1884, leaving to survive him a widow, Margaret Mulholland, and one daughter, Mary E. George, the Plaintiff, whose husband is still living. The widow and daughter renounced their right to administer the estate, and administration was granted to strangers. The Administrators obtained proper authority to sell the lots in question at public sale for the payment of decedent’s debts, and they were purchased by the widow, on August 29th, 1885, and the deed to her was acknowledged by the Administrators in open Court on November 14th, 1885.
    The widow and her daughter resided continuously in one of these houses from the death of Andrew Mulholland, on September 6th, 1884, down to March 12th, 1895, when the widow died. The widow devised the property in question to her Executors in trust for various purposes, among which was the payment to the Plaintiff of $20.00 per month during her natural life, and in addition thereto $100 ■ annually for clothing, with authority in their discretion to increase the amount of the monthly payments. The will likewise directs the Trustees to pay to decedent’s brother, Joseph Sawyer, $25.00 per month during his natural life. The will also provides that the whole estate shall go to any child or children of the Plaintiff surviving her, subject-to the provision made for the brother. In case of the death of the daughter without a child or children surviving, the testatrix provides for the disposition of her estate in a manner unnecessary here to relate.
    The Plaintiff contends that, on the death of Andrew Mulholland intestate, she and her mother became co-tenants in common of the land described in the writ, and that when the widow purchased the same at an Orphans’ Court sale for the payment of debts that relation of ownership previously existing was not thereby changed, and that the widow could not by her will dispose of the interest of her co-tenant, the Plaintiff.
    The contention on the part of the defense is that the Plaintiff accepted the provision made for her in her mother’s will, and has regularly and without complaint received her monthly and annual payments for some ten years, and that having elected to so take she is now estopped to question her mother’s title to the property. The Plaintiff’s answer to the allegation of estoppel is that she was under the disability of coverture, and the doctrine of estoppel or election does not apply to her.
    The defense relies on the following undisputed facts: That the Administrators of Andrew Mulholland presented their petition to the Orphans’ Court for leave to sell decedent’s real estate for payment of debts aggregating over $19,000.00, and a citation was issued to the Plaintiff, then of full age; the purchase of the property by the widow and the confirmation of the sale by the Court; the exercise of entire ownership by the widow from the date of her deed of Novembr 14th, 1885, to the time of her death on March 12th, 1896; the probating of her mother’s will on March 15th, 1895, whereby she disposes of the property in question; the acceptance by the Plaintiff of legacies given her by her mother’s will, payable monthly and annually, which the Plaintiff received for a period of ten years; the payment by the Trustees under the will, for the same length of time, the sum of $25.00 per month to decedent’s brother, with knowledge on the part of Plaintiff; Plaintiff’s participation in the distribution of balance in hands of Executors on filing of their first account; the first and final account of the Trustees under the will of Plaintiff’s mother, showing the payment of $3,516.01 to the Plaintiff from February 5th, 1897, to March 19th, 1906, being the annuity provided for her in said will, and likewise showing payment of $3,102.50 to the other annuitant, of which Plaintiff had knowledge, and the presentation of a joint petition to the Orphans’ Court by the Plaintiff and Joseph Sawyer, legatees under the will of Plaintiff’s mother, to enforce payments due them under the provisions of said will, and the obtaining of the order and the enforcement of payment.
    The evidence is uncontradicted that the Plaintiff not only accepted the annuity payable to her under her mother’s will, for many years, and on one occasion employed counsel and enforced the provisions of the will in her favor in the Orphans’ Court. She not only received her own annuities without protest, but had full knowledge of the payment of an annuity to her uncle during the same period of time. For all these years she recognized her mother’s title to and ownership of the land in question, and this down to the time of bringing this action of ejectment. It also appears that her mother purchased the property for $2,350, subject to certain mortgages against the same, and that Plaintiff in no way endeavored to or did reimburse her mother in the purchase. There was an attempt on the part of the Plaintiff to show that her mother made certain declarations to the effect that the Plaintiff and her husband had contributed to the purchase of the property, but his evidence was so indefinite as not to be worthy of consideration. The Plaintiff saw her mother purchase this property at a public sale, and pay the purchase price; she saw her from the time of her purchase to the day of her death — some ten years— exercising every right of ownership over it; she saw her dispose of it by will, and she became a beneficiary thereunder, and enjoyed the fruits of that will for ten years. She enforced her rights as a legatee in and out of Court, down to the time of bringing this suit, having received $3,516.01, and now without proof of reimbursement for money paid by ber mother on the purchase of the property, and without the slightest offer to return to the estate the amount of the legacy she has been regularly receiving for ten years under her mother’s will, she now claims the land as the heir at law of Andrew Mulholland, and that her unequivocal acts as legatee under her mother’s will are not binding upon her by reason of coverture.
    We cannot agree with Plaintiff in her contention, and are of the opinion that under the undisputed facts of the case the Plaintiff is not entitled to recover, and that judgment should be entered for the Defendant non obstante veredicto.
    And now, July 10th, 1911, the rule for judgment non obstante veredicto is made absolute and judgment is now entered for Defendants on payment of verdict fee. The motion for a new trial is refused.

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

      Morton Hunter, for appellant.
    — Appellant was not estopped: Tompkins v. Merriman, 155 Pa. 440; Paul v. Kunz, 188 Pa. 504; Spencer v. Reese, 165 Pa. 158; Stivers v. Tucker, 126 Pa. 74; Grim’s App., 105 Pa. 375; Klein v. Caldwell, 91 Pa. 140; Graham v. Long, 65 Pa. 383; Del. Lackawanna & Western R. R. Co. v. Burson, 61 Pa. 369; Crest v. Jack, 3 Watts 238; Gregg v. Patterson, 9 W. & S. 197; McAninch v. Laughlin, 13 Pa. 371; Hill v. Epley, 31 Pa. 331.

      W. H. S. Thomson, with him Smith H. Shannon, Ache & Wassell and J. B. Eichenauer, for appellee.
    Appellant was estopped: Tiernan v. Roland, 15 Pa. 429; Bigham’s App., 123 Pa. 262; Couch v. Sutton, 1 Grant (Pa.) 114; Bruner v. Finley, 217 Pa. 127; Klick v. Gernert, 220 Pa. 503; McCullough v. Wilson, 21 Pa. 436; Powell’s Appeal, 98 Pa. 403; Grim’s Appeal, 105 Pa. 375; Cox v. Rogers, 77 Pa. 160; Zimmerman v. Lebo, 151 Pa. 345; Tompkins v. Merriman, 155 Pa. 440; Stump v. Findlay, 2 Rawle, 168.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of the learned Judge of the Common Pleas, entering judgment for the appellee non obstante veredicto.


author: Per Curiam,

text:
    Engle v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Railroad property — Act of April If, 1868, P. L. 58 — Riding.
    In an action against a railroad company to recover damages for personal injuries sustained prior to the Act of June 10, 1907, P. L. 522, which repealed the Act of April 4, 1868, P. L. 58, the plaintiff is entitled to recover where the evidence shows that at the time of the accident he was unloading a car on a switch; that his employer, a private manufacturing company, had the exclusive ownership and control of the switch, and always unloaded the cars after they had been placed on the switch; and that the accident was due to the negligent act of the railroad company in running an engine and tender on to the switch and against the car on which plaintiff was working, at a time when there was no necessity for the engine to go on to the switch for the purpose either of delivering or removing cars.
    Argued Oct. 26, 1911.
    Appeal, No. 170, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 1025, on verdict for plaintiff in case of Theodore Engle v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict for plaintiff.

      On a rule for judgment for defendant n. o. v. Swearingen, P. J., filed the following opinion:
    The plaintiff, at the time of the injury of which he complains, was employed as a laborer by the Duquesne Brewery, whose plant was located on the south side of Mary Street between Twenty-first and Twenty-second streets, Pittsburgh, Pennsylvania. The accident happened on November 26, 1906. On the 5th day of July, 1899, an ordinance was enacted by the City of Pittsburgh whereby said Brewery was granted the right to construct and maintain a switch along side Mary Street, to connect with the tracks of the defendant near Twenty-second street, for which it paid the city the sum of $75 per annum. The work of constructing this switch was done by the defendant, but the Duquesne Brewery paid for the same on December 5th, 1889. The switch was used exclusively by the Brewery for delivering material to it and shipping its product. The defendant had charge of the switch locks. When a car consigned to the Brewery arrived, the defendant shifted the car upon said switch to the required point in front of the Brewery, and when the car was ready for removal, the defendant ran its engine upon the switch and took the car away. According to the uncontradicted testimony, cars upon said switch were always loaded and unloaded by the employes of the Brewery — never by the employes of the defendant. The defendant had the right to take the car upon the switch, which had been consigned to the Brewery, and it had the right, upon notice, to go upon the switch and remove the car therefrom. It had no other rights upon the switch.
    Upon the day of the accident, the plaintiff was, as an employe of the Brewery, unloading a car of coal, Avhich was standing upon said switch, whilst he was thus engaged, the work of unloading' being uncompleted, an engine and tender of the defendant were run from the main line upon said switch and against the car upon which the plaintiff was at work as aforesaid, without notice or warning to the plaintiff of its approach. The plaintiff was knocked down, rendered unconscious, and sustained terrible injuries. Why the engine and tender were run upon the switch was not explained. The evidence of the defendant’s negligence was clearly for the jury, and it was sufficient to sustain a verdict in favor of the plaintiff.
    The defendant presented a request for binding instructions in its favor, which was refused. The ground of this request was that the plaintiff was in the situation of a co-employe of the defendant’s servants, by virtue of Section 1 of the Act of April 4, 1868, P. L. 58. Said Section reads as follows:
    “That when a person shall sustain personal injury or loss of life while lawfully engaged on or about the roads, works, depots and premises of a railroad company, or in or about any car therein or thereon, of which company such person is not an employe, the right of action to recover in all such cases against the company shall be such only as would exist if such person were an employe: Provided, that this section shall not apply to passengers.”
    Said Section of the Act of 1868 was repealed by the Act approved June 10, 1907, P. L. 522, but, as this accident happened before that date the first section of said statute was then in force; and its provisions govern.
    The argument of the defendant is that the place, where the plaintiff was injured, was part of its works, within the meaning of said Act of 1868; that the defendant is a common carrier and the duty of the common carrier is to deliver the goods shipped to the consignee, which includes unloading them from the car; that the plaintiff was actually unloading this car when he was injured, and was accordingly engaged in doing railroad work. Therefore, the conclusion of the defendant is that the plaintiff cannot recover, because of the provisions of said Act of 1868. It will be observed that the validity of this conclusion depends upon two propositions of the premises upon which it is based, viz:
    1. The place where the plaintiff was injured was railroad or premises, within the meaning of the said statute.
    2. At the time the plaintiff was injured, he was injured in railroad work.
    In Spisak v. R. R. Co., 152 Pa. 281, the Supreme Court says that the cases, under the Act of 1868, divide themselves into two classes:
    “In the first the place of the accident is clearly and for general purposes the ‘roads, works, depots or premises’ of the railroad company. In such cases it is sufficient if the person injured is lawfully ‘engaged or employed on or about’ them, and is' not a passenger. * * * The other class is where the accident occurs in a place which is not exclusively and for general purposes, but only within a limited and statutory sense, the premises of the railroad company. In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is business connected with the railroad in the sense that it is ordinarily the duty of railroad employees, then while the party is engaged at it the statute treats him as a quasi employee, and puts his rights upon the same basis.- If, however, the work has no relation to railroad work as such, and is connected with the railroad only by irrelevant and immaterial circumstances of locality, the case is not within the statute at all.”
    It is not pretended that the place of the accident in this case was such as described in the first class, mentioned in the foregoing opinion. The switch was not within the exclusive control of the defendant. Was the switch railroad “works or premises,” as described in the second class mentioned in the said opinion?
    The switch was the property of the Duquesne Brewery. True it was located upon a street of Pittsburgh; but the title of the Brewery is presumed to have extended to the middle line thereof, subject of course to the public easement. The Brewery had obtained municipal consent to lay the switch and had. paid for it. The defendant had the right to use the switch for the purpose of delivering loaded cars to the Brewery and for the purpose of removing cars after they were unloaded. This was the extent of its rights upon the switch. While the defendant was engaged in the performance of these duties, said switch was railroad works or premises within the meaning of the statute; but while it was not so engaged the switch was not railroad works or premises. When the defendant delivered the car, in which the plaintiff was working, to the Brewery upon said switch, its duty was ended. Its duty to remove the car had not begun, because no request to do so had been given. The fireman of the engine, which ran against the car in which the plaintiff was working, testified that the engine was neither going with cars for the Brewery, nor going for the purpose of removing cars. This testimony was not contradicted. Consequently, at the time of this accident, the switch and the car upon it were in the exclusive control of the Brewery and upon its premises. The defendant had no right to be there, and it was not there in the performance of any duty. We cannot, therefore, see how such switch, at the time of this accident, was in any sense railroad works or premises within the meaning of said statute. . If it was not, the provisions of the statute are not applicable: Christman v. R. R. Co., 141 Pa. 604; Keck v. R. R. Co., 206 Pa. 501.
    Was the plaintiff engaged in railroad work, at the time of the accident? We thought, at the trial, that this was very doubtful and so we left the question to the jury. It was not “ordinarily” the work of railroad employes to load or to unload cars upon the switch in question. For six years prior to the accident that work had always been done by the Brewery’s employes, never by those of the defendant. Under these circumstances, we think Noll v. R. R. Co., 163 Pa. 504, is authority.
    In that case, the plaintiff was employed by the Temple Iron Company to unload cars near its stock house. The railroad’s employes never unloaded such cars. The crew of the railroad came into the yard and shifted the cars, upon request of the Iron Company, but uncontrolled as to speed and manner of running. While boarding a car for the purpose of unloading it, another loaded car was sent in by the railroad against the car Avhich the plaintiff was attempting to board, and he Avas injured. The Supreme Court held that “The plaintiff was not an employe of the defendant or on the footing of one under the Act of April 4, 1868.” We can see no distinction between the facts of that case and the one at bar, with respect to the point under consideration : See also Spisak v. R. R. Co., 152 Pa. 281.
    We cannot perceive any good reason Avky the railroad could not commit to a consignee the duty of unloading cars, delivered upon the latter’s own premises. It is true the authorities cited by the defendant, do indicate that unloading cars, no matter where, is railroad work, but the authorities above cited, to our mind indicate the contrary. If, however, we are correct in our opinion that the place of this accident was not, at that time, the works or premises of the defendant, it is immaterial whether or not the plaintiff was engaged in performing railroad work. This being true, the rule for judgment, non obstante veredicto, must be discharged.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him James R. Miller, for appellant.
    — Since the plaintiff was engaged in the unloading of a car upon a siding which, while not the premises of the Railroad Company exclusively and for general purposes, was the premises of the Railroad Company within a limited and statutory sense, he cannot recover because of the Act of April 4, 1868, P. L. 581. Cummings v. Pittsburgh etc. Railway Co., 92 Pa. 82; Spisak v. B. & O. R. R. Co., 152 Pa. 281; Weaver v. Ry. Co., 202 Pa. 620; Peplinski v. Penna. R. R. Co., 203 Pa. 52; Keck v. R. R. Co., 206 Pa. 501; Hayman v. Ry. Co., 214 Pa. 436.

      Meredith R. Marshall, with him Thos. M. and Rody P. Marshall, for appellee.
    — Where the delivery of cars is complete the statute does not apply. Vannatta v. Central R. R. of N. J., 154 Pa. 262; Noll v. R. R. Co., 163 Pa. 504; Laporte v. R. R. Co., 209 Pa. 469; Miller v. Ry. Co., 216 Pa. 105; Hayman v. Ry. Co., 214 Pa. 436; Kelly v. Union Traction Co., 199 Pa. 322; Keck v. R. R. Co., 206 Pa. 501.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Swearingen, discharging the rule for judgment non obstante veredicto.


text:
    Pennsylvania Railroad Company v. Braddock Borough, Appellant.

      Railroads — Right of way — Width—Deep cuts — Act of April 18, 18^6, P. L. 812.

    Where a railroad company is authorized by its charter to acquire land over which to construct its railroad, not, however, “to exceed four rods in width,” “except in the neighborhood of deep cuttings or high embankments,” the words “deep cuttings” mean such cuts in their entirety as may be reasonably necessary to enable the company to use for track purposes the entire width of an authorized sixty-six foot right of way. In such a case the legislature did not intend that one part of a cut should be treated as “deep” and another as “shallow”, and thus cause the line of the railroad’s property to be serrated and indented and dangerous in the operation of trains.
    Argued Oct. 27, 1911.
    Appeal, No. 177, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 90, on bill in equity in case of Pennsylvania Railroad Company v. Braddock Borough.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschizisker, JJ.
    Affirmed.
    Bill in equity for an injunction
    Frazer, P. J., filed the following opinion:
    The purpose of this bill was to enjoin defendant borough from entering upon land claimed to be part of plaintiff’s right-of-way and constructing thereon a concrete wall. From the bill, answer and proof we find the following facts:
    FINDINGS OF FACT.
    First. Plaintiff is a corporation organized and existing under and by virtue of a special Act of Assembly of the Commonwealth, entitled “An Act to incorporate the Pennsylvania Railroad Company, approved April 13th, 1846, P. L. 312,” and the supplements thereto and amendatory thereof, with the following powers, inter alia:
    “Section 11. That the president and directors of said company shall have power and authority by themselves, their engineers, superintendents, agents, artisans, and workmen, to survey, ascertain, locate, fix, mark and determine such route for a railroad as they may deem expedient, not however, passing through any burying ground, or place of public worship, or any dwelling house, without the consent of the owner or owners thereof; and not except in the neighborhood of deep cuttings or high embankments, or places selected for sidings, turn-outs, depots, engine or water stations, to exceed four rods in width; and thereon to lay down, erect, construct and establish a railroad, with one or more tracks, with such branches or lateral roads as are hereinafter mentioned; and with such bridges, viaducts, turn-outs, sidings or other devises, as they may deem necessary or useful;”
    “And in like manner by themselves, or other persons by them appointed or employed, as aforesaid, to enter into and upon, and occupy all land on which the said railroad or depots, warehouses, offices, toll houses, engine and water stations, or other buildings or appurtenances hereinafter mentioned, may be located, or which may be necessary or convenient for the erection of the same, or for any other purpose necessary or useful in the construction, maintenance or repairs of said railroad; and therein and thereon to dig, excavate and embank, make, grade, lay down, and construct the same.”
    “Section 2. That said Company shall not purchase or hold any real estate, except such as may be necessary or convenient for the making and constructing of said Railroad, or for the furnishing of materials therefor, and for the accommodation of depots, offices, warehouses, machine shops, toll houses, engine and water stations, and other appropriate appurtenances, and for the persons and things employed or used in or about the same.”

      Second. Defendant is a municipal corporation, organized June 8th, 1867, under the laws of this Commonwealth, and located in the County of Allegheny, the southern line of plaintiff’s railroad being the Northern line of the Borough.
    Third. By virtue of a grant from the Merchants and Manufacturers Bank of Pittsburgh, dated June 8th, 1847, and recorded in the Recorder’s office of Allegheny County, Deed Book Yol. 78, page 378, plaintiff acquired “a strip of land fou" rods in width, and such additional width as may be required and necessary in the construction and use of said railroad at deep cuttings and embankments,” the strip of land referred to being located a short distance west of the present station at Braddock, and includes the land in controversy in this proceeding.
    Fourth. By a Plan of lots laid out by the Masonic Bank of Pittsburgh, recorded December 27th, 1882, in Plan Book Yol. 6, page 300, a street forty feet in width and extending from Margaretta Street in the Borough [of Braddock to the line of the Pennsylvania Railroad, ■known as Pitcairn Street, was laid out and dedicated to public use, and has since that time been used by the public. The land embraced in this Plan was part of the land owned by the Merchants and Manufacturers Bank at the time of its grant to plaintiff and referred to in the previous finding of facts.
    Fifth. In the Fall of 1881 the plaintiff (having theretofore constructed over the land acquired by the grant of 1847 two tracks) permanently located its road over its land by grading the roadbed to four rods in width, one-half thereof on each side of the center line, with cuttings and fills to support the roadbed, and laid down thereon two more tracks, making four tracks in all upon its right-of-way, and put all of the tracks in use prior to May, 1882.
    Sixth. The surface of Pitcairn Street where it abuts on the line of the plaintiff’s property is from three feet to seven feet above the grade of the roadbed and tracks of plaintiff, and for the purpose of supporting the bed of the street at its established grade, the street having lately, by ordinance duly adopted, been improved by grading, paving and curbing, defendant on or about October 17th, 1910, began the construction of a concrete wall at the Northerly end of Pitcairn Street and about four inches South of the South 33 foot line of the right-of-way of plaintiff Company, which when completed will be approximately 35 feet long, five and a half feet above the ground, 18 inches wide at the top with an increase of 6 inches for every two feet of height, to a thickness of 2y2 feet at the bottom. The construction of the wall in question, as at present located, would take the place of the slope existing at Pitcairn Street since the Spring of the year 1882.
    Seventh. In the construction of plaintiff’s railroad at and East of Pitcairn Street a cut was made necessary by a rise in the ground at that point. The cut begins at zero slightly West of Pitcairn Street and becomes deeper as it progresses East toward Parker Avenue, its deepest point being midway between Parker Avenue and Pitcairn Street. At the West side of Pitcairn Street the cut from the surface of the street to the subgrade of the railroad is 4.09 feet, and to the top of the outer rail of the South track 3.33 feet. At the center line of the street the cut is 5.38 feet to the sub-grade and 3.06 feet to the top of the outer rail, and at the East curb line of the street the cut is 7.06 feet to sub-grade and 5.82 feet to the top of the outer rail. The extent of the cut at its highest point midway between Pitcairn Street and Parker Avenue does not appear by the testimony except that the photograph shows it to be in the neighborhood of twelve feet, the gradient being one and one-half to one, and the toe of the cutting being at grade at the Southerly line of the four rods width, the width of the slope is additional to the four rods width.

      Eighth. The cut at Pitcairn Street is reasonably necessary in accordance with good engineering to enable plaintiff to use and occupy its full width of 66 feet for railroad purposes. No objection was made to the cut by any person until October 17th, 1910, when défendant Borough began the construction of the wall now complained of.
    Ninth. Plaintiff Company has now four tracks constructed and in use at Pitcairn Street, and five tracks both East and West of that point. To extend the fifth track in front of Pitcairn Street and connect the ends of the tracks now laid, will require the construction of 6,379 feet of new track. This the testimony shows plaintiff proposes doing in the near future, and if constructed the South rail of the fifth track will be located about six feet from the proposed wall if constructed.
    Tenth. If the plaintiff has the right under its charter to take additional land beyond four rods for the cut at Pitcairn Street, and such additional land was conveyed by its grant from the Merchants and Manufacturers Bank of Pittsburgh, then the proposed wall of the Borough at the end of Pitcairn Street as now located is upon plaintiff’s property. If plaintiff is confined at that point to a strip of land four rods wide by its grant, and no more, then the location of the proposed wall is outside of plaintiff’s land.
    CONCLUSIONS OF LAW.
    First. The question involved in this proceeding is confined within narrow limits. Plaintiff by its charter is authorized to acquire land over which, to construct its railroad, not however, “to exceed four rods in width,” “except in the neighborhood of deep cuttings or high embankments.” Pursuant to this authority it acquired from the Merchants & Manufacturers Bank of Pittsburgh, for the consideration “of the advantages which will result to said corporation from the location and construction of the Pennsylvania Railroad, and for the further consideration of the sum of one dollar, * * * a strip of land four rods in width, and such additional width.as may be required and necessary in the construction and use of said road at deep cuttings and embankments, one-half thereof on each side of the center line of said railroad, extending in length as far as said railroad may pass over the lands of said Corporation.” The land thus acquired lies a short distance West of plaintiff’s station house at Braddock, and now adjoins the Borough of Braddock on the North. In constructing its railroad over this strip of land, to afford plaintiff the use of its full four rods of land for track purposes it became necessary to make a cut at one point which required a slope at a gradient of one and one-half to one, and ranging in heighth from zero to possibly twelve feet. The North terminus of Pitcairn Street is near the West end of the. cut, and the streets on an average of approximately six feet above plaintiff’s graded roadbed.
    If plaintiff’s line extends to the outer edge or top of the slope of the cut then the preliminary injunction should be made permanent; if only to the South 33-foot line it should be dissolved. Plaintiff’s charter authorizes it to hold land for track purposes to the extent of 66 feet in width. If such was not the legislative intention there was no necessity for the reference in the charter to “deep cuttings or high embankments,” and that such was the understanding of both plaintiff and the Merchants & Manufacturers Bank is apparent from the language of the grant, which not only conveys the 66-foot strip but also “such additional width as may be required and necessary in the construction and use of said road at deep cuttings and embankments.” If the cut beginning immediately West of Pitcairn Street and extending Eastwardly is considered a “deep cut” plaintiff’s line extends to the top of the slope. In determining that question we are not confined to the immediate terminus of Pitcairn Street, but must consider the cut as a whole. If no greater at any point than at the West end of the street we should probably say it was not a “deep cut,” but regarding it as a whole and taking into consideration the fact that it increases gradually as it extends Easterly until it reaches a heighth of at least twelve feet, we think it should, under the circumstances, be considered a “deep cut,” and carry plaintiff’s line to the top of the slope. The Legislature certainly never intended that one part of a cut should be treated as “deep” and another as “shallow,” and thus cause the line of a railroad’s property to be serrated and indented, and dangerous in the operation of trains, which would be the result if defendant’s contention that the cut at Pitcairn Street is not a “deep cut” is upheld. The term “deep cuts” as used in plaintiff’s charter in our opinion is a relative term and means such cuts in their entirety as may be reasonably necessary to enable plaintiff to use for track purposes the entire width of a sixty-six foot right-of-way. That conclusion is strengthened by the fact that provision is also made for acquiring .land for depots and other purposes. It is not contended that the slope as it now exists at Pitcairn Street is not in accordance with good engineering.
    The cases cited by defendant do not rule the question raised here. In those cases the taking was under the corporations’ right of eminent domain; here plaintiff purchased not only a strip of land sixty-six feet in width, but such additional land as might be necessary in the construction of its road at deep cuttings and embankments. And this it had a right to do, as its charter expressly confers upon it the power to purchase or hold such real estate as may be necessary or convenient for making and constructing its railroad. If the cut at what is now the terminus of Pitcairn Street was either necessary Or convenient to enable plaintiff to use its full right-of-way for track purposes, and the uncontradicted testimony of its engineers shows that it is, then plaintiff had a right to purchase the additional land, and by the purchase acquired a good title, not only to the 66-foot right-of-way, but also to the top of the slope of the cut. The fact that the Plan of the Masonic Bank shows Pitcairn Street laid out to the 66-foot right-of-way of plaintiff cannot affect plaintiff’s title, as the property was acquired by the Bank and the plan laid out and recorded long after plaintiff secured and located its right-of-way.
    Second. The contention of defendant that the bill must be dismissed because plaintiff failed to show action on the part of its Board of Directors locating its road through this property cannot be sustained. We think such corporate action can be assumed, inasmuch as the testimony shows that the first tracks were laid upon the land acquired from the Merchants and Manufacturers Bank fully sixty years ago, and that the South line of the right-of-way is fixed by measuring from the center line of the tracks as originally located.
    Third. In accordance with the foreging findings of fact and conclusions of law, we are of opinion that the plaintiff’s right-of-way extends to the top of the slope at Pitcairn Street in defendant Borough, and that defendant has no right to construct at that point the proposed retaining wall North of the top of the slope as ascertained upon a gradient of one and one-half to one.
    Let a decree be drawn making permanent the preliminary injunction heretofore granted. The costs of these proceedings to be paid by defendant.

      Error assigned was decree awarding an injunction.

      Jos. F. Mayhugh, for appellant.
    The charter must be strictly construed against the company: Curtis v. R. R. Co., 34 Pa. C. C. R. 52.
    There was no necessity for the attempted taking in this case beyond the sixty-six foot line or the statutory right of. way of the plaintiff. This is a question of fact for the court: Robinson v. R. R. Co., 161 Pa. 561; Curtis v. Erie R. R. Co., 34 Pa. C. C. R. 52.
    So far as appellant’s counsel has been able to discover there is no decision of this court upon what constitutes “a deep cut.” The matter, however, has been passed upon in the case of Curtis v. Columbus and Erie Railroad Co., 34 Pa. C. C. R. 52.

      James R. Miller, of Patterson, Sterrett & Acheson, for appellee.
    The necessity of the cut was within the discretion of the directors: Anspach v. R. R. Co., 5 Phila. 491; Lodge v. R. R. Co., 8 Phila. 345.
    “Deep” is a word of relative meaning. One hole is deep as compared to another which is shallow. It seems to us that the legislature and the grantor meant to give the railroad the right to take land for cuts to support the four rods of roadbed whenever the cuts were physically or topographically necessary and not the result of the mere leveling off of small inequalities.
    The fact that the cut in question was constructed in 1881 openly on the grounds and was visible to everybody, and has remained until to-day unquestioned by the Appellee’s grantor, or its successors in title, amounts to an interpretation of the meaning of “deep” and is absolutely conclusive.
    Drummond v. Attorney General, 2 H. L. Cas. 837; Ins. Co. v. Dutcher, 95 U. S. 269; McMillin v. Titus, 222 Pa. 500; People’s Nat. Gas. Co. v. Braddock Wire Co. 155 Pa. 22; Phila. & Reading R. R. Co. v. Obert, 109 Pa. 193; Mt. Pleasant Coal Co. v. R. R. Co., 200 Pa. 434; West Chester & Phila. R. R. Co. v. Goddard, 10 Sadler 53.
    January 2, 1912:
   Per Curiam,

The decree appealed from is affirmed on the opinion of the learned President Judge of the Common Pleas.