author: Mr. Justice Brown,

text:
    Phillips v. American Cement Tile Manufacturing Company, Appellant.

      Contract — Written instrument — Evidence—Modification of contract.

    A presumption which is almost conclusive is, that when work is commenced under a written contract providing for its compensation, it is prosecuted to the end for such compensation, and this presumption is not to be overcome by less proof than is required to vary, modify or contradict a written agreement on the ground of the omission from it, by fraud, accident or mistake, of a contemporaneous parol agreement; but this rule does not apply where the variation is not from the compensation, but from the work to be performed.
    It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alteration.
    Argued Oct. 17, 1907.
    Appeal, No. 117, Oct. T., 1907,' by defendant, from judgment of O. P. Armstrong Oo., June T., 1906, Ho. 33, on verdict for plaintiff in case of John Phillips v. American Cement Tile Manufacturing Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potteb, Elkin, and Stewaet, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien.
    Before Patton, P. J.
    At the trial when John Phillips was on the stand he was asked this question:
    “Q. Was this written contract abandoned? ”
    Objected to as incompetent.
    “ Q. What was done at that time, at the time you quit, what took place at the time you quit work under the written contract ? ”
    Defendant’s counsel object to the question and call for a proposition.
    Plaintiff’s counsel propose to prove that a verbal contract to continue the work on the buildings mentioned in the written contract, was entered into between the plaintiff and the American Cement Tile Manufacturing Company, on or about October 5, 1905, for the purpose of proving that a verbal contract was entered into at that time, and that such verbal contract was substituted for the written contract.
    Defendant’s counsel object to the offer as incompetent and irrelevant, the plaintiff having declared on the written contract, the execution of which must be shown, that it was canceled. The agreement referred to by the plaintiff purporting to have been made in October, is long after the time, specified in the written contract, at which the work was to be completed. It is. further objected to that the written agreement cannot be altered, changed or amended by parol agreement, the original agreement still subsisting. It is not claimed in the offer to show any power or authority to alter, change or abrogate the original contract.
    The Court: We will hear the testimony for the present and determine hereafter, whether or not it is sufficient to modify the written contract. The objection is overruled for the present and a bill of exceptions is sealed to the defendant. [1]
    “ Q. Name some of the contracts previous to that ?
    Defendant’s counsel object to the testimony as incompetent and irrelevant.
    The Court í What is the purpose of that ?
    Plaintiffs counsel say it is for the purpose of showing the previous course of business between the plaintiff and the defendant, and to show that Joseph Freund had authority to enter into the verbal contract of October, 1905.
    Defendant’s counsel say, the parties having chosen to reduce their contract to writing, signed and sealed by them, it is incompetent and irrelevant to show the making of another contract not connected with this job.
    The Court: We will hear it for the present; we will allow the plaintiff to put in his whole case. The objection is overruled and a bill of exceptions is sealed to the defendant. [2]

      “ Q. Look at the statement of items, the detailed statement of labor furnished under the agreement of October 5, 1905, attached to your lien in this case, and state whether that is a correct statement ? (Paper shown -witness.)
    Defendant’s counsel object to this evidence as incompetent and irrelevant.
    The Court: We will get that generally ; it is not denied by the affidavit of defense. Ask the witness if he actually paid the money to those people.
    Defendant’s counsel object to this evidence as incompetent and irrelevant.
    The Court: The objection is overruled, the evidence admitted, and a bill of exceptions is sealed to the defendant. [3]
    Defendant’s counsel propose to show by the witness on the stand (R. C. Beatty) that Mr. Phillips did not do the work under his contract satisfactorily, and that they compelled the defendant to complete the job before settling with them and the amount of work that was done by Phillips at the time he quit, and that he abandoned the contract, this for the purpose of rebutting the testimony on the part of the plaintiff.
    Plaintiff’s counsel object to the offer as incompetent and irrelevant.
    The Court: The objection is sustained ; we do not think it is competent under the pleadings, the offer is rejected and a bill of exceptions is sealed to the defendant. [4]
    Defendant presented this point:
    That under all the evidence in the case the verdict of the jury must be in favor of the defendant. Answer: That point is refused ; we say to you that all the questions are for the jury. [5]
    The court charged in part as follows :
    [It is not necessary here to prove it by clear, precise and indubitable evidence, but he is bound to prove to your satisfaction before he can recover, by a preponderance of the testimony, that this contract was changed. Gentlemen, has the plaintiff convinced you, by a preponderance of the testimony, that this written contract, for $2.00 a square, was changed on October 5,1905, to a contract to do the work by the day ?] [6]
    [The question for you, gentlemen, to decide is, which version of this matter is right. If the plaintiff has convinced you, by a preponderance of the testimony, that this contract was changed from a contract by the square to a contract to work by the day, then he is entitled to recover. If he has not convinced you, by a preponderance of the testimony, that the contract was so changed, then your verdict should be for the defendant.

      Same day, in open • court, after jury retired and before verT diet rendered, the defendant’s counsel take an • exception- to the general charge of thé court, and to the refusal by the court of the defendant’s point, and request the court to direct the reporter to transcribe his notes of the charge, the points and answers of the court thereto, into longhand, and file the same, properly certified, of record in this case. The court grants the exceptions asked for, directs the reporter to transcribe his notes as requested, and seals a bill of exceptions to the defendant.] [7]'
    Verdict and judgment for plaintiff for $1,580.94. Defendant appealed,

      Errors assigned were (1, 4) rulings on evidence, quoting the bill of exceptions ; (5-7) above instructions, quoting them.

      M. F. Leason and S. H. Madam, for appellants.
    The written contract expressed the full intention of the parties ; there was no ambiguity, fraud, accident or mistake : Dickson v. Hartman Mfg. Co., 179 Pa. 343 ; Hyatt v. Johnston, 91 Pa. 196 ; Harrold v. McDonald, 194 Pa. 359 ; Pioso v. Bitzer, 209 Pa. 503 ; Keystone Axle Co. v. Leyda, 188 Pa. 322 ; Strickland v. Isett, 186 Pa. 280 ; Gibbs v. School Dist., 195 Pa. 396 ; Wyckoff v. Ferree, 168 Pa. 261.
    If the parol contract as set forth by Phillips was^ ever entered into by the parties, the defendant should have been able to show some ratification of it by the appellant: Sword v. Reformed Congregation, 29 Pa. Superior Ct. 626.

      d. E. Harrington, with him James G-. Marks, for appellee.
    The first assignment of error raises the question whether it is competent for a party to a written contract to show the abandonment of such written contract by proof of a separate, distinct and complete agreement, entered into orally between the same parties some five months after the execution of the written contract, upon a new consideration and to meet conditions arising during the progress of the work, and not contemplated by the written contract. Under the authorities this question can be answered only in the affirmative: Malone & Son v. Railroad Co., 157 Pa. 430 ; Crawford v. Bellevue, etc., Gas Co., 183 Pa. 227 ; Beatty v. Larzelere, 194 Pa. 605 ; Green v. Paul, 155 Pa. 126 ; Holloway v. Frick, 149 Pa. 178 ; Marshall Co. v. Traction Co., 138 Pa. 266 ; Wilgus v. Whitehead, 89 Pa. 131 ; Bryant v. Stilwell, 24 Pa. 314 ; Reber v. Brownback, 27 Pa. Superior Ct. 471 ; Bernheisel v. Smothers, 5 Pa. Superior Ct. 113.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

On May 16, 1905, the appellee, as a subcontractor, entered into a written contract with the appellant to do certain roofing for it, for which it was to furnish the material. The clauses in the contract which are material in passing upon the assignments of error are the following : “ The sub-contractor is to receive $2.00 per square for all exposed roofing, siding and gutters which he erects. . . . Should there be any deviation from the specifications as contracted for between the Pitts-burg Plate Glass Company and the American Cement Tile Manufacturing Company, then the sub-contractor shall receive all benefits therefrom. . . . Poorly fitting, badly warped or broken title shall be considered imperfect and shall not be placed on roof.”

The appellee commenced work under his contract on June 17, 1905, and continued to work under it until about October 5, following, when, according to his testimony, the clause providing for his compensation was abandoned and the appellant made a new parol agreement with him that thereafter he should charge a per diem compensation for himself and each man that worked on the building. Appellant’s main contention is that the court ought not to have submitted to the jury the question of the change of the terms of appellee’s compensation, because the only evidence of it was his unsupported testimony. Ho witness was called to corroborate him, and he was contradicted by the two called by the appellant, with one of whom — its vice-president — he testified that the new agreement as to compensation had been made. If the question was simply one of the substitution of a new parol agreement for a per diem compensation for the work called for in the written contract, the contention of the appellant as to the insufficiency of the evidence to show that the clause as to compensation had been changed would have to be sustained. A presumption which, is almost conclusive is, that when work is commenced under a written contract providing for its. compensation, it is prosecuted to the end for such compensation, and this presumption is not to be overcome by less proof than is required to vary, modify or contradict a written agreement on the ground of the omission from it, by fraud, accident or mistake, of a contemporaneous parol agreement. By written contracts alone can disputes between contracting parties, as a rule, be avoided and the rights of each protected ; but no reliance can be placed upon them, if, for work commenced, prosecuted and finished under them, different compensation than that provided for in them for such work may be claimed and recovered upon the unsupported testimony of the contracting workman, that during the continuance of the work the employer had made a parol agreement with him for such different compensation. When the compensation clause in a written contract is to be wiped out altogether and a new parol agreement substituted for it, the rule as to the measure of proof required to vary, modify or contradict a written agreement is to be applied with unabated rigor.

This appellee is not claiming different compensation from that fixed in the agreement for the work which it called for, but for different work. He is not attempting to alter the written agreement as to his compensation, but to show that a new agreement was made to compensate him for work different from that which he was to do under it. In it there is an express provision that “ poorly fitting, badly warped or broken tile shall be considered imperfect and shall not be placed on roof.” The tile was furnished by the appellant, and the testimony of the appellee is that about October 5, he discovered that what had been sent to him did not fit; that he so notified the secretary and treasurer of the company; that the vice president came and saw the condition of affairs and asked him what he would suggest; that he replied that the best thing to do was to substitute galvanized iron; that the vice president said the materials they had furnished had cost too much money to be abandoned, and asked if there was any possible way to use them; that he replied that the only way to use them was to cut them with a hammer and chisel, but that it would take a long time to do so, and that he would have to charge a day’s work if he would have to cut them, instead of $2.00 per square; that he said he could not place the plates and gutters according to the written contract, and that thereupon he was told to go on and finish the work at a per diem compensation. Freund, the vice president, admits that, if the plates had to be cut, such work was not contemplated by the written contract; and he further admits that the appellee, on one occasion, showed him a piece which had to be cut and that he told him to cut it. The testimony of the appellee, that he was compelled to cut the tiles to make them fit, is uncontradicted. He admittedly did different work from that called for in the contract, and for doing it he was entitled to different compensation from that fixed in the contract, even if it had not provided that for any deviation from the plans and specifications he should receive all benefits therefrom. His testimony was, therefore, simply as to what had been agreed upon between him and the appellant as to proper compensation for work which he admittedly did and which admittedly was not within the terms of the written agreement. This being the situation, the court properly submitted the question of the agreement of the appellant to pay the appellee a per diem compensation as one of fact to be determined by the jury from what they regarded as the preponderance of the testimony. “It is always competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted. And this may be shown by parol, by showing either an express agreement, or actions necessarily involving the alteration: ” Holloway v. Frick, 149 Pa. 178. The 5th, 6th and 7th assignments are overruled. In the first four assignments, complaining of the court’s ruling on offers of evidence, we can discover no error, and they, too, are dismissed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth to use v. United States Fidelity & Guaranty Company.

      Public officers — County commissioners — Audit of accounts — Poor district. \
    Where a county is coterminous with a poor district, and the county commissioners act in the capacity of overseers of the poor, a certificate of the county auditors that the commissioners did appear and present their-accounts, and “we did audit, settle and adjust” their “accounts of the county as the same are stated in the foregoing account,” without any reference to the accounts of the poor district, except a statement appended to the report that the commissioners had made illegal payments on account of the poorhóuse, and surcharging them for a lump sum, is not sufficient to impose a liability on the surety of the commissioners for the amount of the surcharge.
    In such a case it was the right of the commissioners and their surety to know from the auditor’s report what item or items in the payments made by the commissioners were improper and illegal, and they were not-required to appeal from a summary surcharge based upon the mere expression of opinion by the auditors.
    Argued Oct. 18, 1907.
    Appeals, Nos. 65, 66 and 67, Oct. T., 1907, by defendant, from orders of C. P. Clarion Co., Aug/T., 1907, No. 126, 127 and 128, making absolute rule for judgments for want of a sufficient affidavit of defense in case of Commonwealth to use of the county of Clarion, at the suggestion and for the use of the Clarion County Poor District v. The United States Fidelity & Guaranty Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Keversed.
    Assumpsit on the official bond of county commissioners.
    Buie for judgment for want of a sufficient affidavit of defense.
    Before Wilson, P. J.

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

      Don O. Gorbett, with him E. E. Ragh, for appellant.
    The duties performed by the -commissioners as poor officers were different from, and did not belong to, their office as commissioners of the county : Jenks Tp. v. Sheffield Tp., 135 Pa. 400 ; Melvin v. Summerville, 210 Pa. 41.
    The law is well settled in the United States that sureties are not liable for after-imposed duties which cannot be presumed to have entered into the contemplation of the parties at the time the bond was executed : 2 Brandt, Suretyship & Guaranty, sec. 660 ; Gaussen v. United States, 97 U. S. 584 ; United States v. Kirkpatrick, 22 U. S. 720 ; United States v. Powell, 81 U. S. 493 ; United States v. Singer, 82 U. S. 111 ; Board of Supervisors of Monroe County v. Clark, 92 N. Y. 391 ; Hatch v. Inhabitants of Attleborough, 97 Mass. 533 ; State v. Roberts, 68 Missouri, 234 ; Schuster v. Weiss, 114 Mo. 158 (21 S. W. Repr. 438); Governor v. Bidgway, 12 Ill. 14 ; Compher v. People, 12 Ill. 290 ; People v. Tompkins, 74 Ill. 482.
    The powers of county auditors are purely statutory. Such officers have no common-law jurisdiction : Schuylkill County v. Minogue, 160 Pa. 164 ; Glatfelter v. Com., 74 Pa. 74 ; Siggins v. Com., 85 Pa. 278.
    A settlement of a treasurer’s account by the county auditors is conclusive only where the latter has jurisdiction in the premises: Schuylkill County v. Minogue, 160 Pa. 164 ; Lehigh County v. Gossler, 24 Pa. Superior Ct. 406.

      H. M. Rimer, with him J. T. Rewisel and F. J. M.affett, for appellee.
    The poor district and the county and their officers, are but parts of the machinery which constitutes the public system, and are no more a division of the government than the allotment of certain officers to particular localities: Freeze v. County of Columbia, 6 W. N. C. 145 ; Commonwealth v. Brice, 22 Pa. 211.
    The authorities are agreed, that for all acts of the principal done, virtute officii, the surety is liable, provided, of course, the sureties’ undertaking extends to all the duties of the office: Wylie v. Gallagher et al., 46 Pa. 205 ; United States v. Thomas, 82 U. S. 337 ; Com. v. Toms, 45 Pa. 408 ; Com. to use v. Singer, 31 Pa. Superior Ct. 597.
    The county auditors had jurisdiction of the accounts of the county commissioners relating to the poor district: Bank v. Com., 10 Pa. 442 ; Glatfelter v. Com., 74 Pa. 74.

      Where the jurisdiction of the county auditors attaches to an office, it is exclusive and original, — unappealed from, it is final: Northumberland County v. Bloom, 3 W. & S. 542 ; Northampton County v. Yohe, 24 Pa. 30.5 ; Commissioners of Lycoming v. Lycoming County, 46 Pa. 496 ; Blackmore v. Allegheny County, 51 Pa. 160 ; Northampton County v. Herman, 119 Pa. 373 ; Schuylkill Co. v. Boyer, 125 Pa. 226 ; Westmoreland County v. Fisher, 172 Pa. 317 ; Spangler v. Com., 8 Watts, 57 ; McMicken v. Com., 58 Pa. 213.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

These three appeals, argued together, are from judgments entered against the appellant for want of a sufficient affidavit of defense in suits brought against it as surety on the official bonds of J. A. Summerville, G. W. Texter and J. S. Saxton, county commissioners of the county of Clarion. The condition of each bond was that the principal would faithfully discharge all duties imposed on him by law as such commissioner and faithfully and legally appropriate all county and other moneys which he, as such commissioner, should have authority to draw out of the county treasury upon checks or orders given by him, or the county commissioners of Clarion county, or over which he or they might have control.

By the Act of June 4, 1879, P. L. 78, creating poor districts, the county of Clai’ion became Clarion county poor district. This poor district is a separate quasi municipal corporation: Melvin v. Summerville, 210 Pa. 41. Such real estate as is needed to carry out the designs and purposes of the act creating the district is required to be taken in its name as the “ Clarion County Poor District,” and the moneys needed for its maintenance are raised by taxes assessed, levied and collected upon a separate basis, termed by the act, “ taxation for poor purposes.” The county commissioners, upon whom are now imposed the duties formerly performed by overseers of the poor, are required to keep accounts of. all moneys received by.them in any way, as well as paid out for the maintenance of the poor district, and these accounts are audited by the county auditors. The county treasurer, who is made ex officio treasurer of the poor district, pays out its moneys on warrants drawn by the commissioners. His accounts as treasurer of the district are audited by the county auditors in accordance with the laws relating to accounts of county treasurer.” Upon what the Clarion county poor district alleges in its statement was an audit of the accounts of the county commissioners of the moneys received and paid out by them for the poor district in the year 1905, filed in the court of common pleas of the -county, and unappealed from, these suits were brought, and the court, having been of opinion that such report was conclusive of the liability of the principal in each bond, entered the judgments from which we have these appeals. The report of the county auditors seems to have been regarded by the parties to the suits and the court as a part of the statement in each case, though not formally made so, and we shall, therefore, so regard it, that we may now determine its effect upon the county commissioners in t'heir disbursement of the funds of the poor district for the year 1905.

The certificate appended to the report of the auditors is as follows : We, the undersigned Auditors of Clarion County, do certify that in pursuance of the Act of Assembly passed the 15th day'of April, 1834, an Act relating to Counties, we met in the County Commissioners’ office in Clarion on Monday, the 1st day of January a. d., 1906, whereupon we did serve notice on the Treasurer, Sheriff and Commissioners who did appear and present their several accounts and we did audit, settle and adjust their several accounts of the County as the same are stated in the foregoing accounts.” This is all there is to show what accounts were audited, and, from it, it does not appear that the .accounts of the county commissioners, as the custodians of the funds of the poor district, were audited, as required by sec. 17 of the act of 1879. On the contrary, the inference to be drawn from the certificate is that the only accounts audited were those of the sheriff, county treasurer and commissioners with the county, which are required to be audited by the act of April 15, 1834. Not a word is said in the certificate about the audit of any account of the county treasurer or commissioners with the poor district. The certificate is that the auditors did audit, settle and adjust their several accounts of the county as the same are stated in the foregoing accounts.” By “ of the county,” the auditors clearly meant “ with the county,” but whether “ of ” or “ with,” there is no certificate of an audit of the commissioners’ accounts with the Clarion county poor district.

Appended to the certificate of the auditors, showing what accounts they had audited, is the following signed by them: “To the court of common pleas of Clarion county: We, the undersigned county auditors, after careful investigation of the proceedings of the county commissioners during the year 1905, and after hearing the commissioners, find that, in our judgment, the commissioners have made improper and illegal payments on account of the building of the county poor house, and work connected therewith, to the amount of $14,868, and we, therefore, surcharge the county commissioners,, viz.: J. A. Summerville, G. W. Texter and J. S. Saxton, equally with the said sum of $14,868 ; and we make this a part of our report.” It is upon this that the Clarion county poor district relies for its judgment against the appellant, its contention being that it shows an audit of the accounts of the county commissioners in their disbursements of the poor funds and the surcharge resulting from such audit. On the other hand, the appellant in each affidavit of defense denies that the auditors’ report, referred to in plaintiff’s statement of claim, audited, settled and adjusted the accounts of the commissioners with the Clarion county poor district, and avers that said report is not a legal or binding judgment against them.

The law prescribes no form in which the report of county auditors shall be made: Godshalk v. Northampton County, 71 Pa. 324; but if any county officer whose accounts are to be audited is to be surcharged by the report of the auditors, it must appear that such surcharge is the result of auditing, settling and adjusting his accounts. The duty of the auditors is to “ audit, settle and adjust ” the accounts of the respective county officers, and until they have done so there can be no surcharge. Liability resulting from the report of county auditors is a statutory one, and the requirements óf the statute must be followed before it can be incurred.- In surcharging the county commissioners as the custodians of the funds of the poor district in this case it does not appear that such surcharge was the result of auditing, settling and adjusting their accounts. The report of the auditors is nothing more than an expression of opinion by them that the county -poorhouse had cost too much money, and payments for it to the extent of $14,868 were, therefore, improper and illegal. That sum, with which the commissioners are surcharged, was not found to have been improperly and illegally paid as the result of auditing their accounts with the poor district and passing upon the disbursements made. What item or items in the payments made by the commissioners were improper and illegal ? It was their right to know this from the auditors’ report, and they were not required to appeal from a summary surcharge. The report has properly been treated by them as a nullity so far as it pretends to audit, settle and adjust their accounts with the poor district. Being but a mere expression of opinion by the auditors that the county commissioners had paid too much for the poorhouse, it would not be any evidence of liability in a suit against them to recover sums alleged to have been improperly expended by them, and much less can it be the basis of a final judgment against them because unappealed from. As it is not evidence of any liability by the commissioners to the poor district, no liability has been incurred by reason of it by the surety on their official bonds, even if the protection of the same extends to the district, which we need not now decide.

The assignment of error in each case is sustained and each judgment is reversed.


text:
    Clarion County Poor District v. Summerville, Appellant.
    Argued Oct. 18, 1907.
    Appeals, Nos. 134, 135 and 136, Oct. T., 1907, from order of O. P. Clarion Co., Feb. T., 1906, No. 148, discharging rule-to set aside auditors’ report and strike off judgment against county commissioners in case of Clarion County Poor District v. J. A. Summerville, G. W. Texter and J. S. Saxton.
    Before Mitchell, C. J.., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    [Reversed.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

For the reasons given in the opinion this day filed for reversing the judgments appealed from, ante, p. 148, the order of the court below in discharging the rule to show cause why the judgment against these appellants should not be stricken from the record is reversed. The judgment is stricken from the record, the costs below and on this appeal to be paid by the appellee.


text:
    Stewart v. DeNoon, Appellant.

      Negligence — Pleading—Statement of claim, — Evidence—Explosion— Fire.

    In an action of trespass to recover damages for the burning and loss of a stock of goods where it appears that the plaintiffs and defendants occupied adjoining parts of a building, and the plaintiffs’ statement of claim charges that the loss resulted from an explosion due to the defendants’ negligence in maintaining a fire in their furnace under a boiler in close proximity to certain inflammable and explosive materials, the defendants are not called upon to prove anything, if it appears from the plaintiffs’ own case that the fire had not resulted from the explosion, but that the explosion had followed the fire by at least half an hour.
    In such a case, even if the plaintiffs .had amended their statement, they could not recover, if the evidence shows that the fire originated in a part of the cellar remote from the inflammable goods, and there is nothing in the evidence to show the origin of the fire.
    Argued Nov. 6, 1907.
    Appeal, No. 7, Oct. T., 1907, by defendants, from judgment of C. P. No. 1, Allegheny Co., .March T., 1903, No. 435, on verdict for plaintiffs in case of W. L. Stewart and George W. Stewart, partners as Stewart Brothers, v. Isaac N. DeNoon and Joseph C. DeNoon, partners as DeNoon Brothers.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Trespass to recover damages for loss of stock of goods.
    Before Collier, P. J.
    The facts appear by the opinion of the Supreme Court, and by the charge of the court below which was in part as follows:
    It is admitted that if the fire did not occur in the cellar or basement, that is the end of the case. To determine that, the rule of law is this: That tiie plaintiffs must satisfy you by the weight of evidence that the fire originated in the cellar, but they are not obliged to satisfy you beyond a reasonable doubt. They are obliged to satisfy you of that by the weight and strength of the evidence on both sides, and if from the weight and strength of the evidence you come to the conclusion that the fire originated in the cellar, then you go to the next question. But if the weight of the evidence does not satisfy you that it did originate in the cellar, then you find for the defendants without going further.
    I will not go over the evidence about that. The eminent counsel on both sides have called your attention to every little fact bearing upon the question of whether it originated in the cellar, and it is useless for me to go over it again. As you are the sole judges of the facts, I could be of no service to you in going over something that has been fully gone over before you by counsel. When you come to examine the question you ask yourselves, did this fire originate in the cellar ? Remember you are not obliged to have an absolute eyewitness, you are not obliged to find it beyond a reasonable doubt, but you are obliged to find that fact by the strength and the weight of the evidence. With that in mind, you take up the question, and if you find from the weight of evidence that the fire originated in the cellar, then you go to the next and probably the most important question — at any rate, an essential question— and that is, did that fire in the cellar originate from the carelessness and negligence of the defendants ?
    ********
    [The burden is upon the plaintiffs to show you that there was a want of that care, that prudent care. The law requires that, before they can recover, whether it is a big case or a little one. There again the evidence is somewhat conflicting. You have heard the learned counsel on that. The last one that addressed you marshalled his facts before you, and the learned counsel on the other side marshalled his facts to show that there was no want of ordinary care. On the plaintiffs’ side they claim that there was a want of ordinary care,' and on the other side they say there was not a want of ordinary care. I will not go over that. You heard all the testimony, how that cellar was filled with inflammable substances; there was wood alcohol, linseed oil and dryer and other inflammable substances. The linseed oil would drip in places on the floor and s'awdust was laid on it, and the plaintiffs say that was left there, not cleaned up and burnt, and the defendants say that it was cleaned up. The plaintiffs say that it was left there from the May before and all the way down to the night of the fire. The plaintiffs allege that no prudent man, knowing that he was right next door to a largo warehouse, and knowing or being required to know thé danger of these substances and the danger of explosion and fire taking place from the linseed oil and sawdust on the floors, that the defendants did not exercise ordinary care. On the other side they allege that they exercised all the care that business men ought to exercise under the circumstances, and that they took that stuff up and had it actually clean, that is, up to the night of the fire.] [2]
    [So that you now have the whole question before you. Although it has taken four and a half days to try it, it is not too long a time, because it is impossible to try this kind of a case in a short time. Still, when you come to determine it, it comes down to the few old principles of law which apply to a little case, as well as a big one, and these are the-principles: First, did the fire originate in the basement ? If it did not, you find for the defendants. If it did, then you will determine from all this evidence whether there was due care exercised under all these circumstances, knowing the inflammable condition of these goods and everything about it. If they did not exercise ordinary care, and that caused the damage — which of course it would if that was the cause of the, fire — then you find for the plaintiffs. The measure of damages is what they lost.] [3]
    Plaintiff’s points were as follows :
    1. If the jury are led to believe from the evidence that the fire which occurred arose in the cellar of the defendants, and was caused by the condition in which it (the cellar) was allowed to get and remain from time to time up to the time of the fire, by allowing,, placing or throwing sawdust or other substances on the floor, so that it or they became saturated with oil, varnish or other substances flowing or, dripping from the barrels or tanks used by defendants in their business, and thus became dangerous and likely to produce fire; and the defendants knew or should have known this condition of things, they were guilty of negligence, and plaintiffs are entitled to a verdict in their favor in this case. And in such case it is immaterial how much care was taken in other respects by defendants in the management of their business. Answer: Affirmed. [5]
    2. The right of plaintiffs to recover depends upon whether defendants exercised due care and caution in regard to the manner in which they permitted the cellar to be used and allowed to get and remain with reference to sawdust, oil, varnish, etc., before and up to the time of the fire; and that thé duty of the defendants was to take such care as was reasonably necessarjr arising from the danger involved in the care and manipulation of inflammable materials. Answer : Affirmed. [6]
    3. It is immaterial whether the wall was broken by an explosion or by the falling of the floors, provided the fire arose from the negligence of the defendants in their manner of caring for the cellar in respect to that which caused the fire. Answer : Affirmed. [7]
    Defendant's points were as follows:
    4. The testimony of George Porter, the insurance inspector, and W. D. McGill and W. G. McOandless as to the condition, of defendants’ store on May 29,1902, is not evidence of its condition on July 29, 1902, and the jury must not consider their testimony. Answer: The testimony of these witnesses standing alone would not be sufficient to show the condition of the building on the night of the fire, but the plaintiffs have introduced evidence, if believed by the jury, tending to show that from the date in their testimony, that is, May 29, 1902, from that time down to the' fire the premises were kept in a similar condition. Therefore, the point is refused. [4]
    5. Under the pleadings and evidence the verdict should be for the defendants. Answer: Refused. [1]
    Verdict and judgment for plaintiff for $40,800. Defendant appealed.

      Errors assigned were (1-7) above instructions, quoting them.

      George B. Gordon and Leri Bird Duff, with them Wm. Watson Smith, for appellants.
    The evidence does not support the pleadings: Wilkinson Mfg. Co. v. Welde, 196 Pa. 508 ; Good v. Mylin, 8 Pa. 51 ; Cleaver v. Garner, 133 Pa. 419.
    There is no evidence that the defendants’ negligence was the cause of the fire : Ford v. Anderson, 139 Pa. 261 ; Brunner v. Blaisdell Bros., 170 Pa. 25 ; Hartman v. Penna. R. R. Co., 144 Pa. 345 ; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350 ; Consulich v. Standard Oil Co., 122 N. Y. 118 (25 N. E. Repr. 259); Cochran v. Dinsmore, 49 N. Y. 249 ; Phila. & Reading R. R. Co. v. Shertle, 97 Pa. 450.

      L. K. Porter, with him 8. G. Porter, for appellees.
    That this was not a case for nonsuit or peremptory instructions is clearly established by numerous decisions : Shafer v. Lacock, 168 Pa. 497 ; Fisher v. Ruch, 12 Pa. Superior Ct. 240 ; Judson v. Powder Co., 107 Cal. 549 (40 Pac. Repr. 1020); Trexler v. B. &. O. R. R. Co., 28 Pa. Superior Ct. 198 ; Hartman v. Citizens’ Nat. Gas Co., 210 Pa. 21 ; Penna. R. R. Co. v. Coon, 111 Pa. 430 ; West Chester & Philadelphia R. R. Co. v. McElwee, 67 Pa. 311 ; Marsh v. R. R. Co., 206 Pa. .558.
    If there is a defect in the statement it is cured by the verdict : Kroegher v. McConway & Torley Co., 149 Pa. 444 ; Brown v. Gilmore, 92 Pa. 40 ; Leckey v. Bloser, 24 Pa. 401 ; Corson v. Hunt & Abrahams, 14 Pa. 510 ; Robinson v. English, 34 Pa. 324 ; Smith v. Latour, 18 Pa. 243.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

At the time the appellees sustained the loss which is the subject of this litigation they were wholesale boot and shoe dealers in the city of Pittsburg, and appellants were engaged in the wholesale paint and glass business. They occupied adjoining parts of a building, separated by a thin terra cotta partition. Appellees’ part was known as Fo. 917 Liberty street, and appellants’ as 919. The fire which caused the destruction of appellees’ goods occurred about one o’clock on the morning of July 29, 1902, and is alleged in the statement to have resulted from an explosion due to appellants’ negligence in storing and handling paints, oils, varnishes, benzine, turpentine and other substances, and in negligently maintaining a fire in a furnace under a boiler in close proximity to these inflammable and explosive materials. The defendants Avent into court to meet the charge that an explosion resulting from their negligence had caused the fire. Summoned to answer this specific charge of negligence, they were not required, in arranging their defense, to prepare to meet another. It was sufficient for them to come into court prepared to show that an explosion had not taken place as the result of their negligence. If the negligence charged against them had been established by evidence offered on the part of the plaintiffs, the burden would have been upon them to show that they had not been so negligent, but Avhen the plaintiffs themselves proved that the fire had not resulted from the explosion, but that the explosion had followed the fire by at least a half hour, the defendants were not called upon to prove anything. The case against them, as set out in the statement, had not only not been proved, but was disproved by the plaintiffs, and, when they rested with unamended pleadings, the right of the defendants was to a nonsuit, instead of being forced to go on and make defense to a charge they had not been called upon to answer. “ Allegations and proofs must still correspond. The wise and reasonable requirement that a plaintiff must correctly and accurately set forth the material grounds of his complaint has, with us, withstood the reforming hand of the modern pleader, and the defendant yet knows that he need answer only what is charged against him: ” Wilkinson Manufacturing Co. v. Welde, 196 Pa. 508.

As long as the case of plaintiffs was being presented the defendants could not know that it would not be made out as pleaded, and only when plaintiffs rested was it knoAvn that it had not been so made out, and a nonsuit was promptly asked for, “ for the reason that the plaintiffs have not given any evidence of the negligence alleged in the declaration or statement. The evidence does not show that the fire originated from an explosion in the cellar.” Plaintiffs made no offer to amend their statement. If it had been amended the case would have been continued on defendants’ motion, if they were surprised, to a subsequent term, and in the interval they would have had an opportunity to prepare to meet the new charge of negligence against them. But we need not discuss this further, for even if the statement should be regarded as having been amended, charging the fire as the direct result of the negligence of the defendants, there is nothing in the evidence from which the jury could have determined how it originated.

It was incumbent upon the plaintiffs to show not only that the fire had started in the cellar, but that it resulted from some negligent act of the defendants. The jury were so properly instructed. They were told that unless they found that the fire had originated in the cellar, their verdict should be in favor of the defendants without further consideration of the case, but that if they should find that it did originate there, and resulted from the negligence or want of proper- care on the part of the defendants, the plaintiffs were entitled to recover.

There was sufficient proof for a finding that the fire started in the cellar, but none that it started in that part in which it must have started if the theory of the plaintiffs as to its cause was correct. No direct or positive evidence was offered as to its cause, and the plaintiffs were not required to furnish that kind of proof. In a case like the present it rarely can be furnished, but they were required to submit, in lieu of it, circumstantial evidence from which, if not satisfactorily explained by the defendants, the jury could reasonably conclude that the fire was due to their negligence. That the defendants were careless in allowing the drippings of oil, varnish and other inflammable materials to accumulate in sawdust on the cellar floor was fairly found by the jury, but the only testimony from which they could have found that the fire resulted from this carelessness was that of an expert chemist called by the plaintiffs. With his testimony eliminated there was not a piece of evidence in the case from which the jury could have found what caused the fire. What he said was but a theory as to its origin. His testimony is as follows : “ Q. Assuming it to be true that oil, turpentine and varnish were allowed to collect upon the floor of a cellar and, mixed with sawdust from time to time, permitted to remain there for. some considerable time without being fully cleaned iip and removed, would such a state of facts be likely to result in spontaneous combustion? A. I would say yes. Q. Would such-a state of facts as you heard described by the witnesses in this case, where there was a fire in the- cellar or live coal tmder the boiler, such as described by the witnesses — would that likely result in fire ? A. I would say yes.”

The inflammable condition of the cellar was confined to the front part of it. The dripping oils and the saturated sawdust did not extend to the boiler or fire under it. Plaintiffs’ own witnesses so testified, one of them stating that the barrels or tanks of oil were kept in the front end of the cellar, the one nearest to the boiler being twenty-five feet from it, and yet the fire must have started in the front part of the cellar, between Liberty street and some feet from the boiler, if the expert’s theory was correct. After the fire was over the plaintiffs had access to the building, and one of them went through it frequently, making investigations. Neither he nor any other witness called by them testified that there had been any fire in the front part of the cellar, though there was much testimony as to where it had burned in other portions of the building. On the theory, upon which alone the plaintiffs would be entitled to recover, that the fire had been caused by the inflammable condition of the front part of the cellar, it was clearly incumbent upon them to show that there had been fire there, but this they failed to do, and when the case went to the jury it was under undisputed and uncontroverted evidence offered by the defendants that there had been no fire in the front part of the cellar. The evidence was that there was no indication of fire‘in that part of the cellar; that the nearest point to Liberty street where there was any indication of fire was at the other end of the boiler, next to the alley; that not a particle of the cellar had been burned back to the boiler, and an insurance adjuster stated that the stock in the front part of the cellar was absolutely intact, except that it was dirty and splashed with water ; that the empty barrels were intact, and the. tanks which contained the drying oils and varnishes were also intact.

The theory of the plaintiffs as to the origin of the fire vanished utterly in the light of undisputed facts, and with its disappearance there was nothing before the jury from which they could have found how the conflagration started. The defendants are liable only if their negligence caused it, but until its cause is known or fairly found from the evidence it cannot be said to be due to their negligence. The only conclusion to be reached from a review of all the evidence is that no one can tell how the fire started, and the finding of the jury that it was due to defendants’ negligence must be regarded as a mere guess. If the loss to the plaintiffs was due to the negligence of the defendants, it is their misfortune that they were not able to so prove; on the other hand, if it was not due to the negligence of the defendants, it is well that the law will not permit them to be made liable for the consequences of a mere guess that it was. The first assignment of error is sustained, the judgment is reversed and judgment is now entered for defendants.


author: Mr. Justice Potter,

text:
    Clymer v. Roberts, Appellant.

      Deed — Boundaries—Street as boundary line — Easement.
    Where a deed describes the property conveyed as extending “to the middle line of Howard Street (50 feet wide); thence along the middle line of said Howard Street,” and it appears that Howard street at the date of the deed was not an open street, nor plotted on the city plan, the grantee takes a fee to one-half of the street, with an easement over the ground of the other half of the street which entitles him to prevent any obstruction of, or the erection of any buildings upon, such street.

      Appeals — Assignments of error — Equity—Final decree.

    On an appeal from a decree in equity, the specifications of error are defective if the final decree of the court below is not assigned for error.
    Argued Jan. 6, 1908.
    Appeal, No. 130, Jan. T., 1901, by defendants, from decree of O. P. No. 3, Phila. Co., June T., 1905, No. 4,882, dismissing exceptions to adjudication in case of Evan M. Clymer et al. v. Joseph F. Roberts et al.
    Before Mitchell, C. J., Fell, Blown, Mbstbezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.-
    Bill in equity for an injunction to restrain the construction of a building in the bed of Howard street.
    Before Yon Moschziskeb, J.
    In addition to the facts stated in the opinion of the Supreme Court, the court below found as a fact that the portion of Howard street referred to in the deed from Wellens to Ryan was not at the date of the deed, and was not at the time the bill was filed, and the case tried, an open street, nor was it plotted on the city plan. . The court also found that Howard street south of Fisher avenue was an open street on the city plan at the date of the deed.
    The court entered a decree in favor of the plaintiffs. Defendants appealed.

      Errors assigned were in dismissing various exceptions to the adjudication, quoting the exceptions, but not quoting or specifying as error the final decree of the court.

      John W. Frazier, Jr., with him Bertram G. Frazier, for appellants.
    Where an easement or other right is not expressed and is sought to be implied as attached to the grant of the fee, the same must clearly appear from the intention of the parties as shown by the terms of the grant with the. surroundings of the property and the other “ res gestae of the transaction: ” Union Burial Ground Society v. Robinson, 5 Wharton, 18 ; Paul v. Carver, 24 Pa. 207 ; Fitzell v. Phila., 211 Pa. 1 ; Neely v. Phila., 212 Pa. 551.

      Jay R. Grier, with him John 12. Gassel, for appellee,
    cited: Transue v. Sell, 105 Pa. 604 ; Paul v. Carver, 26 Pa. 223 ; Cox v. Freedley, 33 Pa. 124 ; Pearl Street, 111 Pa. 565 ; Osterheldt v. Philadelphia, 195 Pa. 355 ; Barnes v. Philadelphia, etc., R. R. Co., 27 Pa. Superior Ct. 84.
    March 2, 1908:
   Opinion by

Mr. Justice Potter,

The specifications of error in this appeal are defective, in that the final decree of the court below is not assigned for error : Watkins v. Hughes, 206 Pa. 526; Kenworthy v. Trust Co., 218 Pa. 286. The question here raised is whether the language of the deed from Wellens to Ryan, by which the property was described as extending “ to the. middle line of Howard street (50 feet wide); thence along the middle line of said Howard street,” vested in the grantee and his successors in title, the right to the use of Howard street as an open highway, and entitled them to prevent any obstruction of, or the erection of buildings upon, such street. The learned judge of the court below-has with great care and accuracy collected and considered the cases bearing upon the question involved, and has drawn from them the correct rule. Under the authorities cited, and from others which might be added, it is clear that if the boundary given in appellee’s deed had been merely “ Howard street, 50 feet wide,” he would have taken an easement in an unopened street of that width to the eastward of the land conveyed to him. In Grier v. Sampson, 27 Pa. 183 (190) this court said: “ A conveyance of land bounded by a road or street, gives the grantee a title to the middle of the road or street, if the grantor owned thereto; and in the absence of title papers we are to presume that a lot bounded by a street extended to the middle of it.” And in Spackman v. Steidel, 88 Pa. 453, Justice Mekour said : “ It is settled law in this state that when a public street or highway is called for as a boundary in a deed, the grantee takes title in fee to the middle of the street, if the grantor had title to it, and did not expressly or boy clear implication reserve it. “Where the street called for as a boundary is not a public highway, nor dedicated to public use, the grantee does not take title in fee to the center of it, but by implication acquires an easement or right of way only over the lands.” This was followed in Ott v. Kreiter, 110 Pa. 370, where Justice Gordon said (p. 378): “ Where a street called for as a boundary, is not a public highway, though the grantee does not take a fee to the center of it, yet he does thereby acquire an easement, or right of way therein.” And it was again followed in Andreas v. Steigerwalt, 29 Pa. Superior Ct. 1, where Rice, P. J., after quoting the above language of Justice Mekour, said (p. 4): “ There is in such a case, it has been said, an implied covenant that there is a way corresponding with the one described in the deed, that so far as the grantor is concerned it shall be continued, and that the grantee, his heirs and assigns, shall háve the benefit of it.”

In Gamble v. Philadelphia, 162 Pa. 413, a grantor had com veyed land as bounded by an unopened street. Justice Green, referring to the rights of the grantees, said (p. 421): “Beyond all question they had a right of free passage over the street, and it could not possibly be occupied by buildings, either gs against.the city or the plaintiff’s grantees. It was of no use to theorize about the value of the ground as building lots, since it could not lawfully be used for any such purpose.”

In Cole v. Philadelphia, 199 Pa. 464, we said (p. 465): “ The property in question was described as bounded by the line of Fifty-fifth street, which at that time was plotted, but .unopened. Under the rule of law settled in Gamble v. Phila., 162 Pa. 413, and Whitaker v. Phœnixville Borough, 141 Pa. 327, the appellant took title in fee to the land, as bounded by the street, and an easement only, over the bed of the unopened street.”

It is contended here by counsel for appellant, that by making the middle line of Howard street the boundary, instead of the side line, an intention is disclosed to vest the fee to one-half the street in the grantee, without conveying any easement in the remaining half: This suggestion does not commend it-

self to us. As the trial judge well says, if the intention had been to convey to a definite point in total disregard of the street, why should any mention of Howard street have been made ? If the street was not to be preserved, the eastern boundary could just as well have been defined as a course extending from Fisher avenue southwardly to Wellens street. Still less would there have been any reason for describing Howard street, as fifty feet wide. The fact that Howard street Avasreferred to as the.boundary, impresses us Avith the thought that the grantor intended that such a street should be opened, and that the grantee should have the rights of an abutting owner thereon. This conclusion is strengthened by the fact that the proposed street Avould, when opened be an extension of Howard street, as already opened to the north of Fisher avenue. As a conveyance, by a description bounding the property by Howard street, would, if such street had been opened, have conveyed the fee in the bed of the street as far as the center line, to the grantee, with an easement in the remaining half, we are of opinion that the use of the words “ to the middle line of ” really added nothing to the interest which would have been given by a conveyance bounded by the street, had it been opened ; nor would it have lessened in any way the degree of any such conveyance. But as a matter of fact, it appears that Howard street was not an opened public street. Under the authority, therefore, of Spackman v. Steidel, 88 Pa. 453 ; Ott v. Kreiter, 110 Pa. 370 ; Gamble v. Phila., 162 Pa. 413, and Cole v. Phila., 199 Pa. 464, the grantee under a deed calling for the street, or the side of the street as a boundary, would have taken the fee only to the side line of the street, with an easement over its bed, fifty feet wide. The purpose, therefore, in making the boundary in the present case, to be the “ middle line” of the street, was seemingly to vest the fee in the grantee as far as the center line, notwithstanding the fact that the street was at the time unopened. At any rate, this was the legal effect. The further intention is also apparent, that the grantee was to have an easement in the remaining half of the street which was specifically described as fifty feet in width. The grantee thus having an easement over the ground here in question, as we said in Gamble v. Philadelphia, 162 Pa. 413, “ it could not possibly be occupied by buildings.”

The decree of the court below was clearly right, and it is affirmed, and this appeal is dismissed at the cost of the appellant.


author: Mr. Justice Fell,

text:
    Furbush’s Estate.

      Appeals — Orphans’ court practice — Findings of fact — Assignment of life insurance policy.

    A finding of fact by the orphans' court that an assignment of a life insurance policy was not an absolute assignment, although appearing so onits face, will not be reversed by the appellate court where there is ample evidence to support a finding by the lower court that the assignment had been made by one friend to another in pursuance of a verbal agreement that the assignee should carry the policy for the benefit of the assignor and his wife, and pay the proceeds thereof less premiums, to the assignor or his wife as they should be entitled thereto.
    Argued Jan. 6, 1908.
    Appeal, No. 154, Jaü. T., 1907, by Sarah A.Furbush, from decree of O. O. Phila. Co., Oct. T., 1905; No. 82, dismissing exceptions to adjudication in Estate of Charles A. Furbush, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Exceptions to adjudication of Ashman, P. ,J.
    The facts are stated in the opinion of the Supreme Court.
    The court in an opinion by Peneose, J., dismissed the exceptions.

      Error assigned was in dismissing the exceptions.

      John Wearer, of Weaver ds Drake, for appellant.

      Henry P. Brown, with him John Dickey, Jr., for appellee.
    March 2, 1908:
   Opinion by

Mr. Justice Fell,

The sole question presented by this appeal is whether the court erred in dismissing exceptions to the allowance of the claim of Louisa J. Patton to a part of the proceeds of a policy of insurance on the life of her husband, which had been assigned to the decedent. The policy was payable to Geo. W. Patton, if living at the end of the endowment period, and to his wife, Louisa J. Patton, in the event of his death before that time. It was assigned in 1895, to the decedent, who paid the premiums as they became due until the death of Mr. Patton in 1904 during the endowment period. The decedent received from the insurance company $51,268, for which he had not accounted at the time of his death in 1905. Ilis executors claimed the whole of this amount on the ground that the policy had been assigned to secure an indebtedness due by Mr. Patton to the decedent, which with interest exceeded the amount received. The claim of the appellee was that the assignment was made in pursuance of a verbal agreement that the decedent should carry the policy for the benefit of herself and her husband and pay the proceeds less the premiums paid by him and loans which he agreed to make to her, with interest thereon, to the one who should be entitled thereto. The learned auditing judge found in favor of the appellee and this finding was sustained by the court in banc.

We are asked to reverse the decree because of error in the finding that “ the policy was not assigned as collateral security for any debt of the insured.” Findings of fact will not be reversed by an appellate court without the clearest and most convincing proof of error. The credibility of witnesses, the weight to be given to their testimony because of their character, intelligence and knowledge of the subject can be much better determined by the judge who hears them than by us, and we should be in danger of falling into grave error in substituting our judgment for his: Steinmeyer v. Siebert, 190 Pa. 471.

Because of the error alleged in this finding, we have reviewed the testimony and we see no reason to doubt the correctness of the conclusion reached by the learned auditing judge. It was conceded that, although the assignment was absolute on its face, a sale or gift was not intended and that it was made as a collateral security for some purpose. There was direct proof of the making of the agreement on which the appellee’s claim Avas based, of its repeated acknowledgment by the decedent, and of his confirmation of it by making loans of money to Mrs. Patton. Moreover, the probabilities, to Avhich in case of doubt weight should be given, were all in favor of the claim. Mr. Patton had failed in business, and at the time of the assignment Avas pecuniarily embarrassed and unable longer to carry the policy. It Avas the only piece of property he had left for the protection of his family in the event of his death. The decedent was his intimate friend, for whom in more prosperous times he had done acts of kindness. Another friend had offered to carry the policy. He went to the decedent because he had a greater claim on him. The recovery of the debt due the decedent was barred by the statute of limitations. That under these circumstances Mr. Patton should have pledged his policy, which had a present surrender value, to secure a debt he was under no legal obligation to pay; that his wife, Avho had an interest in it, should have assented to this ; or that a friend should have received it on these terms is utterly incredible.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Mestrezat,

text:
    Mellor, Appellant, v. Smyth.

      Will — Nuncupative will — Evidence—Charge of court.

    The provisions of the statute relating to wills are mandatory that a will must be in writing and signed by the testator, unless he is prevented from so doing by the immediate apprehension of death and there is neither time nor opportunity to make a written testament. There must be an urgent necessity or an emergency to justify a nuncupation.
    In a contest to determine the validity of a nuncupative will, where it appears that the testatrix survived thirty-four hours after making of the will, a physician may be permitted to testify as to the physical condition of the decedent during the interval between the making of the will and the decedent’s death.
    On the trial of an issue to determine the validity of a nuncupative will, where the only question for the determination of the jury is whether the will was made when the testatrix was in extremis, it is reversible error for the court in its charge to dwell on the general proposition that the law does not favor, but merely tolerates, a nuncupative will. Such an instruction tends to lead the jury from the consideration of the one question submitted for their determination.
    On the trial of an issue to determine the validity of a nuncupative will, it is proper for the court to call the attention of the jury to the interest of the witnesses in the result; and if the court does so in reference to the witnesses for the will it should do the same in reference to the witnesses against the will.
    Argued Jan. 6, 1908.
    Appeal, No. 167, Jan. T., 1907, by Letitia B. Mellor, sole beneficiary and executrix named in the will of Margaret, known as Mary Margaret Bippus, deceased, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 2,317, on verdict for defendant in suit of Letitia B. Mellor v. David J. Smyth, deputy escheator and administrator of Mary Margaret Bippus.
    Before Mitchell, C. J., Pell, Beown, Mesteezat, Pottee, Elkin and Stewaet, JJ.
    Reversed.
    Issue to determine the validity of a nuncupative will.
    Before Ahdeheied, J.
    At the trial when Dr. George E. Levis was on the stand the court under objection and exception permitted the witness to testify as to the condition of Mrs. Bippus, the testatrix, on Sunday, December 10, 1905. [1]
    The court charged in part as follows:
    [Ordinarily I say all wills must be in writing. That is absolutely true without exception in respect to devises of real estate. They must be in writing. But under certain circumstances a will may be good, so far as it relates to personal property, when it is made by word of mouth. That is the case where the will is made in the extremity of the testator’s last illness, which extremity has come upon him suddenly, unexpectedly, violently, so as to prevent his putting his testamentary wishes into writing. “ In extremis ” means at the extreme, the last point of one’s last sickness. In order that a man’s will made by word of mouth shall be good it must be made at the extreme end of his last sickness, that extremity having come upon him suddenly, unexpectedly, giving him no opportunity to reduce his wishes with respect to his property into written form, as required by the statute in ordinary cases. “ In extremis ” means in the last stages, in extremity, on toward the end, and it has reference to the testator’s last sickness.] [2]
    [This matter of oral wills, wills not in writing, is one which is not regarded with much favor by the law, or the courts that administer the law, because of the great danger of putting words into the mouths of people who have property, by interested and designing people. It is very easy to get up a will for a rich man which will be favorable to people towards whom he intended to show no favor, if there is not some such requirement as that the will shall be in writing, and it is only because of necessity that that rule, made for the purpose of preventing perjury and fraud, is relaxed. It is only in case of necessity, and .the particular case of necessity in which such wills are permitted is that where a man makes it in the extremity of his last sickness, in his own house or habitation, where he has resided for ten days before he intends to made it, unless he is suddenly surprised away from home by a sickness which prevents him getting to his home. Mow this lady was at her home. She was not taken with a sudden attack of sickness which kept her away from her residence. She died in the house where she had resided for a long while before she attempted to make her will.
    The only question in the case which the orphans’ court has left open for your consideration, investigation and report, is this question as to whether Mrs. Bippus was in the extremity of her last sickness when she made her will, that extremity having come upon her suddenly and unexpectedly, and under such circumstances as to preclude the possibility of her reducing her intentions to writing or having them set down on paper for her by somebody else acting by her instruction.] [3]
    [She was taken from her bed, as I understand the testimony, on Saturday about noon, and set upon the commode. There is some question as to whether that was near her bed or not. I think Mrs. Mellor said she assisted her there. It was after this that she began to talk again about giving Mrs. Mellor her property.] [4]
    [Dr. Levis, who attended her, saw her the next day. He says that he called about two o’clock on Sunday afternoon. He says that he went into Mrs. Bippus’s room, and he says that he found no one .else there except her, and that she at that time was not in bed, that she was sitting on what he thought was a chair but which he now says might have been a commode, with her back toward the window, some little distance from the bed. He says that he told her it was a dangerous thing for her to occupy such a position, that she was too near the.window, that with this disease of pneumonia, proximity to a window on a cold day would be a dangerous thing, and that he told her she had to get back to bed. lie says he assisted her to bed, that he lifted her from her seat, whatever it was, and that placing one of his arms around her waist and steadying her by placing his other hand under the elbow of her arm nearest him, he led her a few steps to the bed. She apparently moved her feet and walked during this passage. How that is Dr. Levis’s story about the matter. Ho tells you further that Mrs. Bippus talked, and talked so that she could be heard by anybody in the room, even by those on the far side of the room. But what Dr. Levis says on this subject is contradicted by Mrs. and Mr. Mellor. They say that they saw Dr. Levis come into Mrs. Bippus’s room and say that she was not talking freely or in an audible tone at that time, and they say she was not at that time sitting on the chair or on the commode, but that she was in bed when he arrived there, and that she then showed no signs of physical power. You will have to make up your minds as to whose recollection of the occurrences at this particular time is the more accurrate, whether Dr. Levis is right or whether Mr. and Mrs. Mellor are right. It is quite important for you to determine that question, because if this lady was well enough to walk about the room and talk audibly and without difficulty, 1 think it is rather hard to say that she did not have an opportunity to dictate a will in proper form, have it reduced to writing, and sign it, either with her own hand or by the hand of some other person whom she authorized to attach her signature to it on her behalf.] [5]
    [How, in determining this question as to who is telling the truth about what was observable on Sunday, December 10, when Dr. Levis was in Mrs. Bippus’s room, you ought to scan very closely the testimony of these witnesses and weigh their motives. Here we have Dr. Levis, who, so far as has been made to appear, has no’ interest whatever in this controversy. He does not stand to make or lose anything on the turn of your verdict. On the other side we have the testimony of Mrs. Mellor and Mrs. Mellor’s husband. Mrs. Mellor is the claimant under the proposed will. It was Mrs. Mellor in whose favor the will that Mrs. Bippus is supposed to have made on December 9, was made ; she was the sole beneficiary under the will, if it was a will, and she is very much interested in your verdict, she is very much interested in making you believe that this old lady’s condition was desperate, on the Saturday when she expressed herself in relation to her property to Mr. Crankshaw, and that she thereafter had no opportunity to set her will in writing. And Mr. Mellor is interested in this matter, through his wife and in the same way. You must not leave out of sight this question of interest when you come to weigh the testimony of the witnesses. How I do not mean to say, I would not have you think I intend you to believe, that every man who is interested in a question is willing to perjure himself when he comes to testify about it. I would be very sorry to feel that human nature was so bad as that. I do say, however, that where a man has an interest in a question which is at issue before a jury, and he comes to give his testimony about the subject of dispute, he is inclined — it is natural, it is only human nature, and we are all subject to that influence — • to give himself the benefit of any doubt that arises, he is going to put his best foot first, he is going to tell the story as nearly favorably to himself as he can do it, truthfully I mean. Interest gives a bias ; it always leads us, not consciously always, generally unconsciously, to twist things a little in our own behalf, and it is on that account that the testimony of interested witnesses must be scrutinized with particular care, in such a case as this, which depends on that kind of testimony.] [6]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions ; (2-6) above instructions, quoting them.

      Samuel- WhlceUng, with him Riehard Crankshaw, Jr., for appellant.
    While the court may not favor nuncupative wills, the law provides that they may be made in a certain way and while they are to be considered with great care, yet in view of the positive and explanatory language of the act, they are not subject to harsh, arbitrary or unreasonable rules : Yarnall’s Will, 4 Rawle, 46 ; Boyer v. Prick, 4 W. & S. 357 ; Werkheiser v. Werkheiser, 6 W. & S. 184 ; Porter’s App., 10 Pa. 254 ; Haus v. Palmer, 21 Pa. 296 ; Rutt’s Estate, 200 Pa. 549 ; Wiley’s Estate, 187 Pa. 82 ; Megary’s Estate, 25 Pa. Superior Ct. 243.

      Charles Enittel, for appellee.
    Nuncupative wills are not favored by law : Haus v. Palmer, 21 Pa. 296 ; Conaughton’s Estate, 30 W. N. C. 202 ; Porter’s Appeal, 10 Pa. 254.
    March 2, 1908 :
   Opinion by

Mr. Justice Mestrezat,

In this state, every will is required by statute to be in 'writing, and unless the person making it shall be prevented by the extremity of his last sickness, must be signed by him at the end thereof or by some person in his presence and by his express direction. It is provided, however, that personal estate may be bequeathed by a nuncupative will under certain restrictions, one of which is that it be made during the last sickness of the testator. Under these statutory requirements, therefore, a nuncupative will is permissible only when it is made when the testator is in extremis or in the extremity of his last sickness. In construing the language of our statute, we have adopted the views of Chancellor Kent in the leading American case of Prince v. Hazleton, 20 Johns. 502, in construing a similar statute, in which he holds that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will: Priscilla Yarnall’s Will, 4 Rawle, 46 ; Boyer v. Frick, 4 W. & S. 357; Werkheiser v. Werkheiser, 6 W. & S. 184. If, therefore, a nuncupative will is presented for probate, one of the essential requisites of its validity which must be made to appear is that it was made in the last sickness of the testator and that by reason of the near approach of death there was neither time nor opportunity for the testator to execute a written will. The provisions of the statute are mandatory that a will must be in writing and signed by the testator, unless he is prevented from so doing by the immediate apprehension of death and there is neither time nor opportunity to make a written testament. There must be an urgent necessity or an emergency to justify a nuncupation.

In the case at bar, the proponents produced to the register a nuncupative will alleged to have been made by Margaret Bippus on Saturday afternoon, December 9, 1905. The testatrix died about two o’clock on the following Monday morning. The register refused probate of the will, and an appeal was taken to the orphans’ court which awarded an issue devisavitvel non to determine “ whether the said Margaret, known as Mary Margaret Bippus, was in extremis ’ at the time of the making and execution of the said will on the ninth of December, a. d. 1905.” A precept was sent bjr the orphans’ court to the court of common pleas, Ho. 4, of Philadelphia county, commanding that court to form an issue to try the question. An issue was framed in which .the beneficiary and executrix named in the will was plaintiff and the administrator of the estate was named as defendant. The trial of the issue resulted in a verdict and.judgment for the defendant. The plaintiff has taken this appeal.

The first specification alleges error in admitting Dr. Levis to testify to the physical condition of the decedent on Sunday, the day after the alleged will was made. There is manifestly, however, no merit in this assignment. The question at issue before the jury was whether the decedent was in extremis at the time she made the alleged will, and that included her physical condition thereafter until her death in the early morning of the following Monday. Thirty-four hours elapsed from the time the decedent made the declaration disposing of her property until she died, the declarations having been made about four o’clock on Saturday afternoon and the death having occurred about two o’clock on Monday morning. The testimony of the proponent tended to show that when the declarations were made that she was so feeble that she was incapable of doing any physical act, and it is the contention of the proponents of the will that this debility or feebleness continued until death. Unless such debility continued, thereby giving no time or opportunity to execute a written will, nuncupation cannot be permitted, and the alleged will of the decedent is invalid and of no effect. If, as contended by the appellee, the decedent was fully capable of executing a written will on Sunday, and had the opportunity of so doing, her enfeebled condition, if it existed on Saturday, would not be an emergency or necessity which would justify the making of a nuncupative will. The testimony offered by the appellee, the subject of this assignment, tended to show not only that the decedent’s physical condition on Sunday was such that she could have executed a written will, but also that there was no such debility or feebleness at the time she nuncupated as to prevent her from conforming to the requirements of the provisions of the statute by executing a written will. The first assignment of error is not sustained.

In the opinion of the orphans’ court, directing the issue to the common pleas, the court held: “ That the testamentary capacity of the testatrix, the animus testandi, and the substantial identity of the declarations as contained in the. paper propounded for probate with those made by the testatrix were sufficiently established, and that the only point upon which a reasonable doubt could be entertained is whether the testatrix, at the execution of the will, was in extremis.” This was the single question before the jury, and it was a question of fact. The jury were not required to determine tbe validity of the nuncupative will, but to ascertain whether the decedent in nuncupating was in extremis. They had nothing to do with the policy of the law which declares that a nuncupative will is never favored, but simply tolerated. If the testimony produced on the trial warranted the jury in finding that the decedent was in extremis at the time she executed the will, a verdict should have been rendered for the appellant. In determining this question they should not have been influenced by any considerations of policy which required a strict compliance with the essential requisites of a valid nuncupation. A clear and adequate explanation of the meaning in extremis should have been given in the charge, and the attention of the jury should have been directed to the testimony tending to establish the contention of the plaintiff and defendant. This would have left the issue to the determination of the jury with their minds unencumbered and uninfluenced by any extraneous matter.

We are inclined to think that the trend of the charge had a tendency to lead the jury from the consideration of the one question submitted for their determination. We refer especially to that part of the charge made the subject of the third assignment of error. The dangers arising from nuncupative wills are no doubt as pointed out by the learned judge, but, as observed above, they should have no weight or bearing with the jury in determining the single question of fact presented for their consideration. Whether oral wills are not regarded with much favor by the courts because of the great danger of putting words into the mouths of the people who have property by interested and designing people,” or whether “ it is very easy to get up a will for a rich man which would be favorable to people towards whom he intended to show no favor” was wholly beyond and outside of the issue which the jury were sworn to try. The effect of such language and its repetition, or its equivalent, in the charge would necessarily be to influence the minds of the jury against the proponents of the will, ánd require a higher or greater degree of proof to sustain the will than the law demands. Such matters were wholly irrelevant to the issue being tried, and the admonition they contained was not necessary to guide the jury in determining the physical condition of the decedent at the time she made the declaration contained in the paper alleged to be her will. Such admonition should ever be present with the court in determining the validity of a nuncupative will, but they should not be used in a charge to a jury which were sworn to determine the single fact of the physical condition of the testator.

The court very.properly called attention to the interest of the Mellors in the issue before the jury. The jury in determining the weight of their testimony should have taken their interest into consideration. ¥e are not prepared to say, however, that the suggestion of the learned counsel for the proponents is wholly without merit wherein it is said that “ the court hit too hard and kept it up too long.” The act of assembly made the legatee and her husband both competent witnesses, and while it was proper for the court in its charge to allude, to the fact of their interest in the result of the trial, as affecting their credibility, it should have done so in such manner as to leave the credibility of the witnesses entirely to the jury. The reference to the interest of the legatee and her husband without any allusion to the interest of Dr. Levis and the suggestion that Dr. Levis was a wholly disinterested witness would necessarily discredit the testimony of Mr. and Mrs. Mellor. No reference was made in the charge to the opportunities of the attorney and the physician for judging of the condition of the decedent on Saturday nor the fact of the legatee’s refusal to pay the fee which the doctor demanded as an expert witness. These matters are referred to as of some consequence in the opinion of the orphans’ court in awarding the issue. Of course, it cannot be expected that a trial judge will advert to all such details unless his attention is called .to the matter by counsel, but in a case of this character and where there are but very, few witnesses to the material point in the case, it is not well to omit to call the jury’s attention to the interest of any witness in the case. "We merely direct attention to this matter in view of the fact that the case goes back for another trial.

It seems by a reference to the notes of the testimony, that there is some ground for the error alleged in the fourth assignment. Referring to the testimony it seems to show that the decedent was not taken from her bed on Saturday noon as stated by the court; it appears to have been on Sunday afternoon.

While the remarks of the court, the subject of the third assignment of error, were not made by the learned trial judge with the intention of unduly influencing the jury, yet we think they may have had that effect. They were not pertinent to the issue being tried and we cannot say that they did not mislead the jury. Such being the fact, we are required to reverse the judgment and direct the case be tried again.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Stewart,

text:
    Holtby, Appellant, v. Zane.

      Contract — Building contracts — Principal and surety — Limitation as to suit.

    Where a building contract provided for the completion of a building within four months, and also provided that if the contractor failed to proceed with the work, the owner might finish it and charge any loss to the contractor, and the owner in fact entered and finished the work but took a year to do so, the owner cannot recover from the contractor's surety, where the bond of suretyship provided that any suit brought on the bond must be instituted “within six months after the first breach of said contract.”
    Argued Jan. 7, 1908.
    Appeal, No. 169, Jan. T., 1907, by plaintiff, from order of C. P. No. 2, Phila. Co., June T., 1906, No. 1,999, discharging rule for judgment for want of a sufficient affidavit of defense in case of John Y. Holtby v. H. Marion Zane and the Empire State Surety Company.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potteb, Elkin and Stewakt, JJ.
    Affirmed.
    Assumpsit on a bond of suretyship.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      T-he court discharged a rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of court.

      Lewis Lawrence Smith, for appellant,
    cited: Duplan Silk Co. v. Spencer, 115 Fed. Repr. 689 ; Helme v. Life Ins. Co., 61 Pa. 107.

      Sidney L. Krauss, with him William A. Oarr and W. Horace Hepburn, for appellee,
    cited : Northwestern Insurance Co. v. Phœnix Oil & Candle Co., 31 Pa. 448 ; Hocking v. Insurance Co., 130 Pa. 170 ; Schroeder v. Keystone Insurance Co., 2 Phila. 286 ; Waite v. Spring Garden Insurance Co., 1 W. N. C. 155.
    March 2, 1908 :
   Opinion by

Mr. Justice Stewart,

This was a suit upon a bond given for the performance of a building contract entered into by Zane, one of the defendant, with the plaintiff. The contract, dated April 24', 1905, called for the erection and construction of a dwelling house, to be completed August 31, of the same year. It provided that in case of failure on part of the contractor to proceed with the work, the owner should have the right to terminate his employment and take possession for the purpose of completing the work included in the contract. In such event the contractor was to receive no further payments until the completion of the building, when if it should appear that the unpaid balance under the contract exceeded the expense incurred by the owner, the excess should be paid to him, but, if such expense exceeded the unpaid balance, the contractor should pay the difference to the owner. Zane had but partially completed the building when for sufficient cause he was dismissed from the work, and the plaintiff proceeded to finish it himself. The building was not completed until July of the following year, when it was ascertained that.the cost exceeded the unpaid balance on the contract price some $1,505. The action was brought to recover this difference ; but was not brought until August 31, 1906. The surety company in its affidavit of defense set up the limitation of plaintiff’s right of action as expressed in the bond. Tbe provision was as follows : “ Provided further, that any suits at law or proceedings in equity brought against this bond to recover any claim hereunder, must be instituted within six months after the first breach of said contract.” A rule was taken for judgment for want of a sufficient affidavit of defense, which the court discharged, filing no opinion.

The appellant’s contention is that inasmuch as it could not be known until the completion of the building, what, if .any, loss the plaintiff had sustained by reason of the contractor’s failure to do the work, no right of action on the bond could have occurred until then, and that the limitation upon plaintiff’s right to sue began to run only with the contractor’s failure to make good to the plaintiff the excess that he had been obliged to pay for the completion of the building. This view of the case admits of but one possible breach of the building contract — failure to pay the ascertained loss — whereas the contract of surety contemplates several. By the terms of the latter, the right to sue must be exercised within six months after the first breach. It is, we apprehend, only because of the difficulty the plaintiff would have encountered in establishing any loss had he brought his action immediately upon the contractor’s discharge, that the suggestion is made that the failure on the latter’s part, which resulted in his discharge, was not a breach of the contract within the meaning of the parties. Whatever the failure was, if it was so serious as to justify a discharge from the work, nothing short of an expressed provision to the contrary could make it less than a distinct breach, as that term is ordinarily understood. The construction contended for not only disregards the plain language of the contract, but it so manifestly and seriously impairs the limitation upon the right to sue that it is unreasonable to suppose any such effect was in contemplation of the parties. A proper construction can be given the contract of suretyship only as the obligations, which Zane assumed under the building contract, are considered. One of these was, to finish and complete the building within four months. The relation in which the limitation upon the right to sue stands to this provision in the building contract, is too obvious to be overlooked. Considering that under the terms of the contract the loss sustained by plaintiff, resulting from a breach by Zane, could only be ascertained upon a completion of the work, where can there be found in either contract any suggestion of an enlargement of time for the erection of the building ? The saving clause for the plaintiff is in the surety company’s contract. No matter how early in the course of the work the breach might occur, there would remain at least two months beyond the stipulated period during which time the right to sue would survive, and plaintiff would have this additional period in which to complete the work. A construction which thus carries the right to sue to such definite later period, would give the plaintiff all the protection which one in his situation at the time would be likely to require, and at the same time would put a reasonable limitation to the surety company’s liability. Under any other construction the limitation of the right to sue would be utterly valueless to the surety company ; since the liability could be prolonged indefinitely by plaintiff’s delay in completing the building. As it was, the plaintiff took a whole year to finish a partially constructed building, which the contractor had engaged to' complete within four months of the time he entered upon the work. If one year, why not two ? We think it plain, beyond dispute, that the surety company’s obligation here had regard to the period within which the building was to be completed by the contractor, and that the six months’ limitation upon the right to sue, began to run whenever during this period a breach on his part was declared.

Judgment affirmed.