author: Mr. Justice Stewart,

text:
    Germantown Dairy Company v. McCallum, Appellant.

      Contract — Written contract — Change of terms — Evidence—Parol evidence.

    1. 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 alterations. Where the effort is not to contradict the terms of a written contract, but merely to show a subsequent modification, or waiver of something provided for in the contract, while the burden is upon the party asserting the charge, all that is required is that the evidence in support of the claim should be convincing to the jury.
    2. Where a written contract for the sale of a business plant consisting exclusively of personal property also provides for the transfer of an unexpired portion of a lease to the purchaser, and the latter in a suit against him for the purchase money sets up as a defense that the lease had not been transferred to him, the seller may show that he had offered to make the transfer of the lease, that the purchaser had positively refused to accept the transfer, that he then made no further effort to transfer the lease, and that later on when the defendant requested the transfer it was out of the seller’s control through no fault of his, by reason of the change of ownership of the leased premises. Such evidence if believed by the jury is sufficient to sustain a verdict for the plaintiff.

      Evidence — Offer—Relevancy.
    3. It is always the duty of a party making an offer when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy. If such an offer is not apparently relevant, and no explanatory statement is made, the party making the offer cannot, on appeal, complain of its rejection.

      Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108.
    4. It is not a requirement of the Act of April 22, 1874, P. L. 108, relating to foreign corporations, that the registered agent of the corporation shall stand in any other relationship than its agent upon whom process may be served.
    5. Where the agent is a stockholder of the company, and also its secretary and treasurer, the fact that he has parted with his interest and resigned his offices, does not end his agency, but he still remains the agent of the company for the service of process.
    Argued Jan. 7, 1909.
    Appeal, No. 153, Jan. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1904, No. 4,483, on verdict for plaintiff in case of Germantown Dairy Company v. Irving McCallum.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the purchase price of personal property. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.
    When the defendant was on the stand he was asked this question:
    “Q. Will you state whether it was or was not better adapted for carrying on your business than this place on Germantown road?”
    Objected to. Objections sustained. Exception for defendant. [1]
    “Q. How did the property on Harvey street compare with the property you have been occupying before as to size?”
    Objected to. Objections sustained. Exception for defendant. [2]
    “Q. How did the property on Harvey street compare with the property which you had been occupying as to facilities with which to carry on the business?”

      Objected to. Objections sustained. Exception for defendant. [3]
    Defendant .presented these points.
    1. The plaintiff having admitted that it was registered as a foreign corporation at Harrisburgh, with its place of business designated as 109 Harvey street, Philadelphia, and the person in charge of the said business as John C. Nolan, and having admitted that John C. Nolan ceased to have any connection with the company about the first day of January, 1904, except as he still held the position of secretary and treasurer, from which he had not resigned because there was no meeting of the board of directors, and having further admitted that he was in no way connected with the business and did not go to the place of business after January 1, 1904, and the contract in this case having been made by the plaintiff on January 16, 1904, it was made without authority of law, because the plaintiff had not at that time complied with the provisions of the act of assembly which requires foreign corporations to be registered at the office of the auditor general at Harrisburg, and had at that time no authorized agent in charge of its business in this state. Answer: Refused. [4]
    2. If the jury believe that John C. Nolan, the person named in the certificate of registration of the Germantown Dairy Company as the agent thereof in charge of its business at 109 Harvey street, was not in charge of its business on January 16, 1904, and that no person in charge of its business had at that time been designated by the company as the authorized agent of the company, and that the Germantown Dairy Company had not at that time filed any amendment to its original registration certificate, which stated that John C. Nolan was the authorized agent, then the plaintiff had no standing in law to execute the contract upon which suit is brought and cannot enforce the same, and the verdict must be for the defendant. Answer: Refused. [5]
    3. The contract sued upon is an entire contract, and in order to. entitle the plaintiff to a verdict, he must prove entire performance or a waiver of entire performance by the defendant. Answer: Refused. [6]

      4. Even if the jury believe the testimony of Mr. Penrose that the defendant, on January 16, 1904, stated that he did not want the lease transferred, there was no consideration for this waiver of entire performance by the defendant, and when the defendant afterwards demanded from the plaintiff that the lease should be assigned and transferred to him, it was the duty of the plaintiff to transfer and assign the same, and if the jury believe, from the evidence, that they did not transfer the lease and did not attempt to transfer the lease to the defendant, or attempt to secure the consent of the landlord, to an assignment of the lease, unless they were prevented from doing so by some action of the defendant, then there has been such a breach of the contract upon the part of the plaintiff as precludes him from recovery, and the verdict must be for the defendant. Answer: Refused. [7]
    6. Under all the evidence the verdict must be for the defendant. Answer: Refused. [8]
    The court charged in part as follows:
    [If on the other hand, McCallum did release Penrose from his obligation to transfer that.lease, and Penrose complied with the terms of the contract in all other respects, then the plaintiff is entitled to the amount unpaid.] [9]
    [The contract, among other things, included a transfer of the lease. It is what is called an entire contract; that is, Penrose cannot require the payment of the money unless he specially performs his part of the agreement, unless you are satisfied that McCallum waived part performance of the agreement, without further charging the jury as to what would constitute a legal waiver by the defendant of performance of that part of the agreement in reference to the lease.] [10]
    Verdict and judgment for plaintiff for $2,394.60. Defendant appealed.

      Errors assigned were (1-3) rulings on evidence, quoting the bill of exceptions; (4-10) above instructions, quoting them.

      E. O. Michener, for appellant.
    — This provision of the constitution and the word “therein” in the act of assembly can only be construed to mean that the authorized agent or agents shall be in or at the known place of business: De La Vergne Refrigerating Machine Co. v. Kolischer, 14 Pa. Dist. Rep. 521.
    There was no proper agent at the time the writ issued: Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Wall Paper Co.’s App., 15 Pa. Superior Ct. 407.
    The court failed to charge the jury that in order to vary the terms of the contract the evidence must be clear, convincing and without doubt, and he should have further charged the jury that as the only testimony upon the point was that of the plaintiff, which was absolutely contradicted by the defendant, the agreement should be their guide; Wilkinson v. Becker, 155 Pa. 194; Phillips v. American Cement Tile Mfg. Co., 220 Pa. 141.
    Such a release is not good without consideration: Lantz v Ins. Co., 139 Pa. 546; Marvin v. Ins. Co., 85 N. Y. 278; Beech v. Kuder, 15 Pa. Superior Ct. 89; Mt. Holly Water Co. v. Mt. Holly Springs Borough, 10 Pa. Superior Ct. 162; Work v. Prall, 26 Pa. Superior Ct. 104.
    It is respectfully submitted that the learned trial judge was in error in rejecting the testimony as set forth in the first, second and third assignments of error: Reyenthaler v. Philadelphia, 160 Pa. 195; Potter v. Gas Co., 183 Pa. 575.

      William A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellee,
    cited as to the question of registration: De La Vergne Refrigerating Machine Co. v. Kolischer, 214 Pa. 400; Delaware River Quarry, etc., Co. v. Ry. Co., 204 Pa. 22; McManus Contracting Co. v. McFadden, 33 Pa. Superior Ct. 355; American Steel & Wire Co. v. Raleigh Coal & Coke Co., 10 Pa. Dist. Rep. 285.
    Cited as to the question of the waiver of change of agreement relating to the transfer of the lease: McNish v. Reynolds, 95 Pa. 483; Flegal v. Hoover, 156 Pa. 276; Dreifus, Block & Co. v. Salvage Co., 194 Pa. 475; Hyde v. Kiehl, 183 Pa. 414; Trumbower v. Woodley, 26 Pa. Superior Ct. 249.
    Cited as to the admissibility of the evidence excluded by the trial judge: Auberle v. McKeesport, 179 Pa. 321; Seifred v. Penna. R. R. Co., 206 Pa. 399; Philadelphia v. Dobbins, 24 Pa. Superior Ct. 136.
    March 1, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff, a foreign corporation doing business in German-town in this state, by written article of agreement sold to the defendant its business plant consisting exclusively of personal property. It was provided in the agreement that plaintiff would assign and transfer to defendant any unexpired portion of the lease of the premises plaintiff had been occupying in its trade. The action was brought to recover so much of the price as remained unpaid. One of the defenses set up was failure on part of plaintiff to transfer the lease, in consequence of which, the defendant after a short occupancy of the premises was dispossessed by the landlord. In reply, Penrose, the president of the plaintiff company, testified that immediately upon the execution of the contract, while he and the defendant were on their way to obtain the lease and effect a transfer of the same, the latter, having learned from the witness that the dairy company had done no retail and but very little wholesale trade on the.premises, expressed unwillingness to take over the lease, giving as a reason that being engaged in like business at another stand, he could there accommodate himself, and thus avoid the paying of rent; that thereupon, instead of going to the lessor to have the lease assigned, they went directly to the company’s place of business, where all the property included in the contract was delivered over to the defendant, who at once entered into possession of the premises as well. This witness testified that defendant made no request thereafter to have the lease assigned to him, until after a sale of the premises had been made by its lessor and a transfer of the lease had been made impracticable, because of the new landlord’s refusal to assent to the same. The defendant’s testimony was directly to the contrary of all this. We have thus the one question of fact which was submitted to the jury. The finding was in favor of plaintiff’s contention. It is complained on appeal, first, that the court failed to instruct the jury that in order to vary the terms of the contract, the evidence must be clear, and convincing beyond doubt; and that as the only testimony on the point was that of plaintiff’s president and the unqualified denial of defendant, the agreement should be the jury’s guide; and, second, that the alleged waiver being without consideration could not avail plaintiff. As to the first, a sufficient answer would be that it is an incorrect statement of fact. There was testimony in the case supporting and corroborating that of the president of the company. It was for the jury to say what credit they would give it. But it is incorrect in law as well. This was not an attempt to vary or contradict the terms of the written contract. The evidence was not offered to show that the contract did not correctly express what the parties had agreed upon; or a parol contemporaneous agreement modifying it in any way. The purpose was to show a subsequent waiver of a stipulation in the contract which admittedly expressed the common understanding and agreement of the parties. In disposing of a similar complaint in Holloway v. Frick, 149 Pa. 178, where the facts were not unlike those we have here, this court said: “It is claimed that as no fraud or mistake is alleged, it was not competent to vary this contract by parol evidence. The principle, however, has no proper application to the present case. It is always competent for [he 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 alterations.” Where the effort is to contradict the terms of a written contract, the measure of proof is as stated by appellant; but where it goes no further than to show a subsequent modification, or waiver of something provided for in the contract, while the burden is upon the party asserting the change, all that is required is that the evidence in support of the claim should be convincing to the jury.

Nor is the question of consideration for the waiver in the case. No express release from covenant obligation was asserted. The plaintiff’s contention was that his readiness and offer to perform h'is obligation were met with defendant’s positive refusal to accept; that he had a right to rely on what defendant said as to Ms unwillingness to take over the release; that relying on it, he made no effort to transfer the lease; and that later on when defendant requested a transfer, it was out of plaintiff’s control, through no default of his. The jury found this to be a true statement of the facts. That they are •sufficient in equity to estop the defendant from assertmg plaintiff’s failure to assign the lease as a defense to an action for the purchase money, is beyond question.

In the aspect it is now’ presented the question asked by the defendant, when testifying in his own behalf as to how the premises owned by him compared in the matter of convenience and Ideation with those under lease to the plaintiff, was entirely proper. The purpose, it now seems, was to show that the latter had important advantages over the former; with a view to derive from such fact an inference in support of defendant’s denial that he had waived a transfer of the lease, and correspondingly prejudicial to the testimony of the plaintiff’s chief witness. But why was not this purpose disclosed when the question was objected to on the trial? The relevancy of the question as it was there put, could not have been at once apparent. It is always the duty of the party making an offer, when its admissibility is challenged, to state the purpose in such manner that the court may perceive its relevancy: Piper v. White, 56 Pa. 90. Had this been done here, doubtless the question would have been allowed; for the court had previously permitted defendant to testify fully with respect to situation and convenience of the several premises, not by way of comparison, but by giving separate description of each. With this information before the jury, we do not see that the defendant was prejudiced to any serious degree by the court’s action in sustaining the objection to this particular question. The argument addressed to us as to its relevancy should have been addressed to the court below, and not quite so much reliance placed on a mere exception to a ruling, the correctness of which was made to depend on an undisclosed purpose.

The plamtiff company produced on the trial a certificate of its registration in this state as a foreign corporation domg business here. The certificate set out the company’s place of business in the state, and the appointment of John C. Nolan as its authorized agent in charge of the company’s business upon whom process might be served. It appeared that some weeks before the contract of sale was entered into between the plaintiff company and the defendant, Penrose, who was president, had acquired all outstanding stock of the company, including that held by Nolan. This left Nolan, who had been secretary and treasurer from the beginning, without active duties, and while he did not resign his office, he thereafter absented himself from the company’s place of business. It was insisted in the court below, and is here urged, that this left the company without an authorized agent in charge of its business upon whom process could be served, and that therefore the contract between these parties cannot be enforced. But, as this court found occasion to say in the case of De La Yergne Refrigerating Machine Company v. Kolischer, 214 Pa. 400, speaking through Mr. Justice Elkin, it is not a requirement of the Act of April 22,1874, P. L. 108, relating to foreign corporations, that the registered agent of the corporation shall stand in any other relation to it than its agent upon whom process may be served. Notwithstanding Nolan had parted with his interest in the company, or for that matter, had withdrawn or resigned from his place as secretary and treasurer, he remained the agent of the company for the purposes of process, and process served upon him as such agent would have been legal and valid as binding upon the company. In the case referred to it is said, “To sustain the contention of appellant in this respect, it would be necessary to hold that a foreign corporation must not only have a place of business and an authorized registered agent, but to make the service of process legal and the business lawful, the registered agent must be physically present in the place of business when the process is served or the details of the business transacted. Such a construction of the act is not only unnecessary to effectuate its purpose, but would surround it with restrictions and limitations never intended.” This answers every objection raised here, and no further comment is required.

The assignments of error are overruled and judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    White, Appellant, v. Philadelphia.

      Negligence — Municipalities—Doorsteps—Falling over steps.

    1. A city ordinance providing that doorsteps “shall not extend more than four feet six inches into any footway of any street fifty feet wide or upwards, or a proportionate distance into any footway in any street of less width than fifty feet,” applies to the width of a street as physically opened, but not to the width of a street as plotted upon the city plan, but not physically opened to its full width. Such an ordinance is intended to define the limit of an encroachment on the pavement so as to provide a reasonable space between the steps and the curb, and the limit of encroachment is made to depend on the actual, and not on the theoretical, width of the street.
    2. No liability can be imposed upon a city for personal injuries caused by a fall over a doorstep, where it appears that there was a safe foot-way six feet and four inches wide between the end of the steps and the curb.
    3. A city is not required to open a street to the full width plotted. This is a matter wholly within the discretion of the municipal authorities and not reviewable by the court or jury in an action to recover damages for personal injuries.
    Argued Jan. 7, 1909.
    Appeal, No. 233, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 2, Phila. Co. June T., 1905, No. 3,526, on verdict for defendant in case of Thomas Raeburn White, Administrator of the Estate of James P. Kimmey and Frances A. Kimmey, his wife, v. Philadelphia.
    Before Fell, Beown, Mesteezat, Potteb, Elkin and Stewaet, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries sustained by Frances A. Kimmey, deceased, the wife of James E. Kimmey, also deceased, in falling over the steps in front of premises No. 1404 Huntington street, July 4, 1905, about 9 o’clock p. m. Before Sulzbeegeb, P. J.
    In addition to the facts stated in the opinion of the Supreme Court, it appeared that the accident happened on a clear evening, and that an electric light was burning within 145 feet of the steps when the accident occurred. Mrs. Kimmey was walking in a bunch or group of people stated to be twenty-five or thirty in all.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Robert D. Jenlcs, for appellant.

      Joseph W. Catharine, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
    March 1, 1909:
   Per Curiam,

The negligence alleged in the statement of claim was that the city permitted doorsteps in front of a house on the south side of Huntington street, west of Broad, to extend to an unlawful distance into the footway. The proofs at the trial were that in 1857 Huntington street was plotted of the width of fifty feet but was never actually opened at this point to a greater width than forty-eight feet, because houses built on the south.side of the street extended two feet north of the south line of the plotted street. In 1887 the north half of the street was dedicated to public use, but no action was ever taken by the city in relation to the south half. The street was, however, regarded as a public highway and was paved with a foot-way twelve feet wide on the north side, a wagonway twenty-six feet wide, and a footway on the south side ten feet wide, making a completed street forty-eight feet in width. When the houses were built, the owners of the land were at liberty to make any use of the part included in the plotted street and, since they were built before the Act of December 27,1871, P. L. (1872) 1390, the value of the buildings would be included in the assessment of damages, if their removal was required by the opening of the street to the full width plotted.

An ordinance of the city provides that steps “shall not extend more than four feet, six inches into any doorway of any street fifty feet wide or upwards or a proportionate distance into any footway in any street of less width than fifty feet.” The steps in question extended three feet and eight inches from the house line and they were entirely within the requirements of the ordinance for a street forty-eight feet wide, and there was a safe footway six feet and four inches wide between the end of the steps and the curb.

The city was not required to open the street to the full width plotted. This was a matter wholly within the discretion of the municipal authorities and not reviewable by the court or jury. Nor can the ordinance be construed to apply to the theoretical street line. This might be so far back of the actual building line as to make access to a house impracticable. The ordinance was intended to define the limit of encroachment on the pavement, so as to provide a reasonable space between the steps and the curb, and the limit of encroachment was made to depend on the actual width of the street.

The second ground on which a nonsuit was entered, the contributory negligence of the person injured, was equally well taken but it is unnecessary to discuss it.

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    Graham v. Good, Appellant.

      Promissory note — Receipt—Evidence.
    In an action upon a promissory note given under an agreement between the parties to the note in relation to the purchase of shares of a corporation, it appeared that at the time of the delivery of the note plaintiff gave the defendant a receipt acknowledging that he had received the note which was for thirty days in payment of the number of shares named, and agreeing that if the note was paid at the end of thirty days, he would deliver a certificate for the shares to defendant, and that the shares would then be the property of the defendant. Testimony for the plaintiff tended to show that the sale of the stock was complete and absolute, but that because of the defendant’s inability to pay for it at the time he requested the plaintiff to accept his note at thirty days; that the plaintiff agreed to do this after he had made inquiries as to' the defendant’s financial standing on condition that the stock, the certificate for which was in the name of a third party who had signed a blank power of attorney indorsed on its back, should be pledged with him as a collateral security; that the writing signed by the plaintiff was in pursuance of this agreement and was intended to express it, and that after the maturity of the note the defendant repeatedly promised to pay it. Held, that plaintiff’s evidence was sufficient to sustain a verdict and judgment in his favor.
    Argued Jan. 8, 1909.
    Appeal, No. 212, Jan. T., 1908, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 3,974, on verdict for plaintiff in case of Charles H. Graham v. D. Clare Good.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $4,161. Defendant appealed.

      Errors assigned were various instructions and rulings on evidence.

      W. L. Pascoe, of Stevens & Pascoe, with him G. W. Reed, for appellant.

      William D. Neilson, Clinton Rogers Woodruff and Clarence E. Kuemmerle, for appellee.
    March 1, 1909:
   Opinion by

Mr. Justice Fell,

This action was on a promissory note for $3,000 drawn by the defendant to his own order, payable thirty days after date at the Real Estate Trust Company, Philadelphia. The note was given under an agreement between the parties in relation to the purchase of shares of a mining company, and at the time of its delivery to the plaintiff he gave the defendant a receipt in the following form: “I acknowledge having received from D. Clare Good note for 30 days for $3,000 in payment of 1,000 shares, Certificate No. 280 of the capital stock of the Liberty Copper Mining & Smelting Company, and I agree that if the note is paid with interest at the end of 30 days, I will deliver said certificate to D. Clare Good, the certificate then to be the property of D. Clare Good.”

At the trial it was testified on behalf of the plaintiff that the sale of the stock was complete and absolute, but that because of the defendant’s inability to pay for it at the time he requested the plaintiff to accept his note at thirty days; that the plaintiff agreed to do this, after he had made inquiries as to the defendant’s financial standing, on condition that the stock, the certificate for which was in the name of a third party who had signed a blank power of attorney indorsed on its back, should be pledged with him as a collateral security; that the writing signed by the plaintiff was in pursuance of this agreement and was intended to express it; that after the maturity of the note the defendant repeatedly promised to pay it. The instruction by the court was that, if this testimony was believed, a verdict should be rendered for the plaintiff.

The defendant presented no testimony, but asked for an instruction that there could be no recovery because the stock was not delivered or tendered at the maturity of the note, and that the agreement between the parties was merely an option to purchase and was ended by the failure of the defendant to pay the note at maturity and demand the stock.

If the agreement was as testified to by the plaintiff’s witnesses, the sale was complete and absolute and the stock was pledged by the defendant as a security for the payment of his note, and there was no duty of delivery or tender by the plaintiff until the note had been paid. The testimony in relation to the agreement was admitted without objection by the defendant, and no question of the modification of a written agreement by parol evidence is in the case. In any event the receipt signed by one of the parties was open to explanation: Jessop v. Ivory, 172 Pa. 44.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Faux v. Fitler, Appellant.

      Promissory note — Evidence—Parol evidence — Fraud—Contemporaneous agreement — Partnership.
    1. The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its terms regardless of the contemporaneous agreement without which it would never have been signed at all.
    2. In an action on promissory notes an affidavit of defense is sufficient which avers that the defendant, the maker, was induced to sign the notes by a contemporaneous agreement on the part of the plaintiff, the payee, that if losses should occur to an amount named in a partnership between the parties the note should not be enforced, and that such losses had in fact been made.

      Affidavit of defense — Whole claim — Part of claim — Judgment.
    3. Where a plaintiff takes a rule for judgment for the whole amount of his claim for want of a sufficient affidavit of defense, he cannot ask that judgment be entered for part of the claim apparently due under the affidavit of defense.
    Argued Jan. 8, 1909.
    Appeal, No. 249, Jan. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 818, making absolute rule for judgment for want of a sufficient affidavit of defense in case of William J. Faux v. Alfred E. Fitler.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit upon promissory notes.
    The opinion of the Supreme Court states the case.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Francis M. McAdams, with him William H. Wilson and Joseph P. Rogers, for appellant.
    — The existence of a contemporaneous agreement on the faith of which a note has been given, and which agreement has been violated after it has accomplished its purpose, to wit: the execution of the note, may be shown when the enforcement of the note is admitted between the original parties thereto: Hoeveler v. Mugele, 66 Pa. 348; Clinch Valley Coal and Iron Co. v. Willing, 180 Pa. 165; Martin v. McCune, 8 Pa. Superior Ct. 84.

      Samuel W. Cooper, for appellee.
    March 1, 1909:
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit by the payee against the maker of three promissory notes. The court below entered judgment against the defendant for want of a sufficient affidavit of defense for-the whole amount of the debt and interest of the notes. We think the judgment is erroneous and that the affidavit was sufficient to send the case to a jury.

This controversy being between the original parties to the notes, the defendant could defeat a recovery by showing a contemporaneous parol agreement between the maker and the payee which induced the former to execute and deliver the notes, and which agreement had been violated by the payee. This doctrine is well settled by many decisions in this state, the more recent of which, citing the earlier cases, are Keller v. Cohen, 217 Pa. 522, and Gandy v. Weckerly, 220 Pa. 285. In Clinch Valley Coal and Iron Co. v. Willing, 180 Pa. 165, Mr. Justice Williams, speaking for the court, said (p. 167): “The existence of a contemporaneous parol agreement between the parties under the influence of which a note or contract has been signed, which is violated as soon as it has accomplished its purpose in securing the execution of the paper, may always be shown when the enforcement of the paper is attempted. It is a plain fraud to secure the execution of an instrument by representations as to the manner in which payment shall be made, differing in important particulars from those contained in the paper, and, after the paper has been signed, attempt to compel literal compliance with its terms, regardless of the contemporaneous agreement without which it would never have been signed at all.’' That case was an action on two promissory notes given to secure deferred payments for town lots and secured by trust deeds for the lots. An affidavit of defense was held sufficient which averred that at the time the notes were executed a parol agreement was made that the lots should be reconveyed to a trustee who should hold, them as security for the sums due upon the notes and exhaust such security before payment of the notes should be required of the maker, and that the agreement had not been carried out.

Andrews v. Packing Co., 206 Pa. 370, was an action on certain promissory notes, and an affidavit of defense was held sufficient which averred that the notes were given as memoranda for advances by plaintiff to defendant on a contract under which the plaintiff was to sell on commission the product of the defendant’s packing operations; that the plaintiff had refused to take the whole product and by reason thereof part of it was left over and lost; that plaintiff had not accounted for the whole of the goods actually taken, had overcharged commissions on the part sold and accounted for; and that plaintiff upon these transactions was indebted to the defendant in a greater sum than the amount of the note sued upon. In Kennett Square National Bank v. Shaw, 209 Pa. 313, it was held in an action on a promissory note by the payee against the maker that an affidavit was sufficient which averred that the note was to be discounted for the benefit of a certain corporation, and setting up a written agreement by payee to look to the dividends of said corporation for payment. In Keller v. Cohen, 217 Pa. 522, an action on two promissory notes, an affidavit was held sufficient which averred, inter alia, that the maker was induced to accept the loan, sign the notes and execute and deliver the assignment on the faith of the representation made by the payee that the loan should be paid out of the immediate proceeds or profits derived from the sale of umbrella tubes made, and not otherwise, without which assurance and inducement the maker would not have accepted the loan, signed the notes or executed the assignment.

We agree with the plaintiff’s counsel that there is a “variety of statements made by the defendant in his two affidavits of defense;” and confusion naturally results as to what defense he really intends to rely upon. Several of the averments in the affidavits are wholly without merit as a defense on the notes in suit and will be so declared if presented on the trial of the cause. The affidavits are neither concise nor clear, and if the matters therein averred were submitted to a jury it would have great difficulty in arriving at a conclusion. There is sufficient, however, we think to send the case to the jury, and it will be the duty of the trial judge to submit for the consideration of the jury any meritorious defense the defendant may present.

After admitting the due execution of the notes in suit and the receipt of the money thereon, the affidavits aver , inter alia, that at the time of and - previous to the execution of the notes an oral partnership arrangement existed between the plaintiff and the defendant, and that it was engaged in the purchase and sale of certain stocks in the stock market. By the terms of this partnership or joint venture the parties were to contribute to a joint fund which was to be used by the defendant in purchasing stocks from time to time in his own name, the purchase being for the joint interests of both parties. Any profits arising, either from dividends from the stock purchased or from the sale of any of the stocks at a subsequent date, were to be divided between the parties, and “in the event of the investment proving a loss, involving wholly the amounts to be advanced by the plaintiff, he would release the defendant from all obligations assumed by defendant under and by virtue of the said three notes given by defendant to plaintiff.” The three notes in suit were given by the defendant to the plaintiff to secure moneys used in the purchase of stock for the joint interest of the parties in pursuance of the partnership agreement. The defendant made certain purchases and sales of stock as provided by their agreement and a schedule is attached to the affidavit and made part of it which exhibits the purchases and sales made by the defendant on account of the partnership. The affidavit avers that there were “losses aggregating $3,193.75, and that there were other and greater losses involved in the said transactions, which over and above the sum of $3,000 contributed by the plaintiff as aforesaid were borne wholly and exclusively by the defendant/' It is further averred in the affidavit that defendant “contributed more largely to the fund used in the purchase of said stocks than did the plaintiff, and that his losses already aggregate much more than $3,000, the amount advanced by the plaintiff.” The defendant alleges that by reason of the losses resulting from the sales of the stock purchased in the joint venture that the three notes have been satisfied in full and that there is nothing due the plaintiff thereon; “and that until there is an accounting and a balance struck between him and the plaintiff, he is not indebted to the said plaintiff in the sum of $3,000 or in any other sum whatever.” Finally, it is averred “that but for the mutual understanding and agreement he (the defendant) would not have signed or delivered the said notes to the said plaintiff.”

These and other allegations of the affidavits the defendant “avers to be true and expects to be able to prove upon the trial of this cause.” The allegations in the affidavits seem to bring the case within the rule of the cases we have cited above, and that the defendant has the right to show that while conceding the execution and delivery of the notes they were paid in the way agreed upon by the parties at the time they were executed. The action being between the original parties to the notes, they could make any agreement as to the manner of payment they thought fit, and having made such an agreement neither party can be permitted to violate it.

The plaintiff’s counsel seems to think that conceding this to have been a partnership transaction between the parties, the plaintiff can maintain an action for the balance due on an accounting between the parties. That question does not arise here and we give no opinion upon it. This is an action on the notes, and the rule entered by the plaintiff in this case was “for judgment for want of a sufficient affidavit of defense on ’ the above case,” and not for judgment for a part of the plaintiff’s claim under the Act of July 15, 1897, P. L. 276. The plaintiff did not take a rule; as he might have done, for want of a sufficient affidavit as to a specified and designated portion of the claim under the statute just named. Had he done so, he 'then might have contended that he was entitled to judgment for the specific sum which apparently seems to be due under the affidavit of defense. Having, however, taken a rule for judgment for the whole claim for want of a sufficient affidavit of defense he was not in a position in the court below to ask that judgment be entered for part of his claim.

The judgment is reversed with a procedendo.


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    Commonwealth v. De Marzo, Appellant.

      Criminal law — Murder—Insanity—Maniacal outburst — Evidence— Charge.

    On the trial of an indictment for wife murder the prisoner is not entitled to an instruction to the effect that if he killed his wife under the influence of a maniacal outburst he should not be convicted, although he knew his act was unlawful, and knew the difference between right and wrong, if there is not the slightest evidence of a passionate outburst of any kind in his conduct either at two interviews with his wife on the day of the killing, or immediately before or after the killing, or from that time until he was placed in jail.
    Argued Jan. 11, 1909.
    Appeal, No. 352, Jan. T.,’ 1908, by defendant, from judgment of O. & T. Lackawanna Co., Oct. T., 1908, No. 10, on verdict of guilty of murder of the first degree in case of Commonwealth' v. Nicholas De Marzo.
    Before Fell, Brown, Mestrezat, Potter., Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder of the prisoner’s wife. Before Edwards, P. J.
    The facts appear by the opinion of the Supreme Court.
    The court charged in part as follows:
    [I ought to state to you that the test of the defendant’s responsibility in this case is his ability to distinguish between right and wrong. When he shot his wife did he then know that he was committing an unlawful act? Did he have the capacity to understand the consequences of his act? Did he know that his act was wrong and criminal? If he did he is responsible.] [1]
    [Every fact of whatsoever kind disclosed by the evidence must be weighed by you in order to determine the defendant’s state of mind and to ascertain whether his act was intentional and premeditated, or whether it was the product of a diseased mind unable to distinguish between right and wrong.] [2]
    [From the very nature of the mental disease there can be no grading of it by degrees so as to accord with a degree in crime. In other words, if the defendant is not guilty of murder of the first degree because he was insane, he is not guilty of murder of the second degree, or of any other degree of crime. Either the offense of the defendant is wholly excused because the jury is satisfied by the preponderance of evidence of his irresponsibility, or he is guilty, because the evidence fails to so satisfy you.] [3]
    [The commonwealth claims that the defendant is guilty of murder of the first degree and of nothing else, and it is for you, gentlemen of the jury, to decide whether the commonwealth has maintained its contention beyond a reasonable doubt.] [4]
    [If the killing is the result of a fully formed purpose to take life and the act is done deliberately, the crime is murder of the first degree. In other words, if there is an intention to kill, deliberately formed and executed, it is murder of the first degree.] [5]
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were above instructions, quoting them.

      M. J. Martin, with him Geo. H. Bice, for appellant.

      Joseph O’Brien, District Attorney, for appellee.
    March 1, 1909:
   Per Curiam,

The only defense set up at the trial was that of insanity, and all of the assignments of error pressed relate to the charge on that subject. The instruction in the charge was that the test of the appellant’s responsibility was his power to distinguish between right and wrong; that all the facts disclosed by the evidence were to be taken into consideration to determine his state of mind and to ascertain whether his act was intentional and premeditated, or whether it was the product of a diseased mind unable to distinguish between right and wrong. It is argued that in addition to the instructions given the jury should have told that, if the apoellant killed his wife while under the influence of a maniacal outburst, he should not be convicted, although he knew his act was unlawful and knew the difference between right and wrong.

The power to distinguish between right and wrong is not always the only test of responsibility, since this power may exist without the power of self-control. And there was some expert testimony to the effect that the appellant was suffering from a species of latent insanity, a characteristic manifestation of which is a sudden, irresistible, maniacal outburst of temporary duration. There was not, however, the slightest evidence that his conduct, at the time of the murder or at any time before or after, suggested a lack of control because of mental disease, or that his mind was dominated by an irresistible impulse. The facts are very clearly stated in the following extract from the opinion of the learned judge in refusing a new trial: “In the history of defendant’s life since he came to this country, particularly since he married the woman he killed, there was nothing to indicate that he was the subject of sudden maniacal outbursts. And his conduct during the whole of the day on which the homicide occurred shows that he was cool, rational and in full control of his acts. The evidence shows that he had been in the habit of locking his young wife in the house. On the morning of the day of the killing he went to his work as usual. About ten o’clock he was informed that his wife had left his house, and had gone to her sister’s house. He left his work then and walked home. He changed his clothes, took the revolver out of a bureau drawer, put it in his pocket and went to seek his wife. Finding her in her sister’s house he had an interview with her which lasted from a quarter to a half an hour. He tried to prevail on her to return home. She refused, giving as a reason that it was not safe for her; that he had beaten and abused her and had threatened to shoot her more than once. He then left and came back in the afternoon, when he had another interview with his wife similar in character to the first. At the end of this interview, when the sister had just stepped out of the door, he coolly took the revolver out of his pocket and shot his wife. He then went back to his own house and put the revolver in the pocket of another coat. He was soon arrested and his actions from that time until he reached the county jail were that of a person who knew full well what he had done and why he did it. There was not the slightest indication of a passionate outburst of any kind in his conduct, either at the morning interview, or at the afternoon interview, or immediately before or after the shooting or from that time until he was placed in jail.”

The instruction given was all that the facts developed at the trial called for. The appellant, however, had the advantage, in the answers to special requests for charge, of full and admittedly accurate instructions on the want of mental control.

The judgment of the court is affirmed, and the record is remitted to the court of oyer and terminer of Lackawanna county that the judgment may be carried into execution according to law.


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    Commonwealth v. Willis, Appellant.

      Criminal law — Murder—Robbery—Confession—Evidence.
    1. A conviction of murder of the first degree will be sustained where the evidence shows that the deceased, an old and infirm man, had been robbed, that his death resulted from injuries inflicted at the time of the robbery, that the prisoner knew his habits, was near his room about the time of the robbery, that he subsequently pawned the watch taken from the deceased, and that the prisoner had confessed to three different persons at different times that he had entered the room of the deceased at night, had choked him, and caused him to fall from his couch to the floor, and had taken his money and his watch from his clothes.

      2. A confession of murder made at the instance of the prisoner without solicitation by anyone, and after an express caution that it would be used at the trial, the meaning of which caution could not have been misunderstood, is properly admissible in evidence at the trial.
    Argued Jan. 11, 1909.
    Appeal, No. 323, Jan. T., 1908, by defendant, from judgment of O. & T. Luzerne Co., April T.j 1908, on verdict of guilty of murder of the first degree in case of Commonwéalth v. Thomas Willis.
    Before Fell, Brown, Mestrezat, Potter, Elkin and'Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Lynch, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty, upon which judgment and sentence was passed.

      Errors assigned were various rulings on evidence and various instructions.

      Stanley Kwryloski, with him Miner B. Schnerr, for appellant.

      Abram Salsburg, District Attorney, for appellee.
    March 1, 1909:
   Per Curiam,

The appellant was convicted of murder committed in the perpetration of robbery. That an old and infirm man had been robbed, that his death resulted from injuries inflicted at the time of the robbery, that the appellant knew his habits, was near his room at about the time of the robbery, and that he subsequently pawned the watch taken from the deceased was established beyond all doubt. In addition to this it was shown by the commonwealth that the appellant had on three different occasions confessed to different persons that he had entered the room of the deceased at night, had choked him and caused bim to fall from his couch to the floor, and had taken his money and his watch from his clothes. These confessions were corroborated by the independent proof by other witnesses of facts admitted. The case was submitted to the jury with exemplary care, and it should have ended with judgment on the verdict.

The fifth assignment relates to the admission in evidence of the third confession. It was made in the private office of the warden of the jail, in the presence of the district attorney and three officers. The meeting was not prearranged. The officers had brought the appellant to the jail and in the course of a general conversation, a reference was made by someone to a statement. The appellant said: “I would like to tell about it.” The district attorney then said: “Tom, do you know what you are charged with?”.to which he answered: “I certainly do.” The district attorney asked: “You made a statement in Baltimore?” The appellant answered: “Yes, sir.” The district attorney then said: “You know that whatever you say to us, we are going to use it in the trial of your case; you understand your rights; you don’t have to talk at all if you don’t want to.” It is argued that the appellant may have understood that what he said would be used in his favor at the trial and that the confession was therefore inspired by hope. This argument is without force. The confession was made at the instance of the appellant without solicitation by anyone and after an express caution that it would be used at the trial, the meaning of which could not have been misunderstood. We find no merit in any of the assignments, and they are all overruled. The judgment is affirmed and the record is remitted to the court of oyer and terminer of Luzerne county in order that the judgment may be carried into execution.


author: Mr. Justice Elkin,

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    McManus v. Doughten, Appellant.

      Equity — Corporation—Partnership—Contract—Jurisdiction.
    "Where two men enter into a contract which they construe themselves as an agreement to purchase the whole of the stock of a corporation, share and share alike, and not as a partnership, and one agrees to provide a working capital for the corporation, and the other to become its manager at a salary, the rights of these shareholders, whatever they are, must be worked out through the corporation, and cannot be determined in a proceeding in equity treating them as partners.

      Argued Jan. 11, 1909.
    Appeal, No. 394, Jan. T., 1907, by-defendant, from decree of C. P. No. 4, Phila. Co., Sept. T., 1901, No. 3,738, on bill in equity in case of Patricius McManus v. Isaac Doughten and the Philadelphia and Conshohocken Stone Quarry Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to compel the transfer of stock, for an accounting, and for the determination of mutual and reciprocal obligations of plaintiff and the defendant, Doughten.
    The case was referred to George Wharton Pepper, Esq., as referee, who recommended that the prayers for relief be denied, excepting as respects the transfer of the stock.
    The court entered a decree in pursuance of the recommendation of the referee.
    The case sufficiently appears from the opinion of the Supreme Court.

      Errors assigned were in not sustaining various exceptions to referee’s findings of fact, and the decree entered in pursuance of the referee’s recommendation.

      Dimner Beeber, with him J. Levering Jones, for appellants.

      M. Hampton Todd, with him John A. Coyle, for appellee.
    March 1, 1909:
   Opinion by

Mr. Justice Elkin,

It is difficult to unravel the tangled threads running through the business relations of the parties to this controversy because of the failure on their part to clearly define by contract or otherwise the rights, liabilities and duties of each. The courts cannot make a contract for them, nor can their legal rights be very satisfactorily declared when they have failed to clearly state them. On the whole we are inclined to .concur in the views expressed and conclusion reached by the learned referee and approved by the court below. We agree that the agreement of 1895 did not constitute a partnership relation. It was on its face an agreement to acquire the quarry property and hold it as joint owners, but in point of fact the parties themselves construed it to be a contract to purchase the shares of capital stock issued by the corporation, which was done. Doughten paid one-half of the purchase price and McManus the other half. According to the terms of the agreement, each party was to own one-half of the property purchased, which in point of fact was the capital stock. They did not make any attempt to do business as partners, nor did they recognize the partnership relation in the course of their business dealings. After the purchase of the shares of stock, they elected a new board of directors, which board managed the affairs of the company as a corporation. It is a corporation, acting under its charter rights and powers, and we can see no reason why, if it be deemed advisable to dissolve it or wind up its business, the regular and lawful method of so doing should not be pursued. The referee was clearly right in holding that in the present proceeding he could not undertake to determine questions which wholly relate to the operation of the quarry by the corporation which owned it. The duty of McManus to provide a working capital for the operation of the quarry, if such a duty was imposed by the contract, and the right of Doughten to receive a salary as manager of the quarry, are matters to be determined between them and the corporation, and if these questions cannot be settled between the board of directors and the parties on the basis of an amicable adjustment, then resort must be had to proper legal proceedings looking to a receivership and winding up of the business of the corporation. In other words, the rights of these shareholders, whatever they are, must be worked out through the corporation and cannot be determined in a proceeding in equity treating them as partners. McManus paid for one-half the capital stock, and there has been no sufficient reason given to deny his right to have these shares transferred to him. This is all the decree entered by the court below gives him, and to' this he is clearly entitled.

Decree affirmed at the cost of appellant.


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    McManus, Appellant, v. Watson.

      Arbitration — Referee—Findings of fact.

    A referee’s findings of fact as to an amount due on an accounting and as to the existence of after-discovered evidence, confirmed by the court below, will not be disturbed by the appellate court unless manifest error is made to appear.
    Submitted Jan. 11, 1909.
    Appeals, Nos. 150 and 330, Jan. T., 1909, by plaintiff and defendant, from decree of C. P. No. 4, Phila. Co., June T., 1899, No. 406, on bill and cross bill in case of Michael McManus v. James V. Watson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account.
    The case was referred to George W. Pepper, Esq., as referee, who filed various findings of fact and conclusions of law.
    Exceptions to the referee’s report were dismissed by the court.

      Errors assigned were in dismissing exceptions to referee’s report.

      William M. Reese and Wm. W. Lucas, for appellant.

      George R. Van Dusen, and John G. Johnson, for appellee.
    March 1, 1909:
   Opinion by

Mr. Justice Fell,

These appeals may be considered together. The controversy is between the same parties and grows out of the same subject-matter. This cause came originally before the common pleas on a bill filed by the plaintiff for discovery, account and return of collaterals, etc., and a cross bill filed by the defendant. The referee to whom by agreement of the parties the causes were referred reported that the plaintiff in the original bill was indebted to the defendant, and recommended a. decree dismissing his bill, retaining the cross bill, and directing the defendant to sell at public sale the lease of a quarry and certain personal property assigned to him as collateral security for the plaintiff’s indebtedness, and to account before the referee for the proceeds of the sale and for the operation of the quarry,— the profits, if any, in operating the quarry to be deducted from the amount before found to be due by the defendant in the cross bill and the losses, if there were losses, to be added thereto. The decree entered in the common pleas in pursuance of the recommendation of the referee was appealed from. The appeal was dismissed and the decree affirmed March 19, 1906: see 214 Pa. 652.

After the sale of the property mentioned the referee made a thorough examination of the accounts in relation to the operation of the quarry and made a finding as to the amount due the plaintiff in the cross bill, which included the proceeds of the sale and the profits resulting from the operation of the quarry property. The 144 exceptions filed to the report were dismissed, and a decree was entered directing the payment forthwith of the amount found by the referee to be due. Appeal No. 330 is from the decree entered.

The appeal in No. 150 is from an order of the court discharging a rule to show cause why the decree entered in favor of the defendant in the original bill should not be vacated, the findings of fact set aside, the case opened, and the plaintiff permitted to take further testimony. After the affirmance on March 19, 1906, of the decree directing the sale of the quarry property above referred to and while exceptions to the second report of the referee were pending in the common pleas, a petition was presented to this court in which it was averred that the plaintiff had come into possession of evidence not before obtainable, which would show that the testimony on which the findings of fact by the referee were based was untrue and the decree obtained was inequitable. On examination of the petition leave was granted to the petitioner to present the application to the common pleas, and that court was authorized to examine and determine by referring the matter to the referee, or otherwise, as might by it be deemed best, whether justice required any further order and, if so, to make such further order. The court of common pleas referred the petition and answer to the referee in the case to take testimony and report the same with his findings of fact and law to it. The referee reported to the court that no evidence had been produced before him which was after-discovered evidence, and that no cause had been shown which in his opinion would justify a reopening or modification of the decree. Whereupon the rule was discharged by the court.

Passing as unworthy of comment the unjust reflections on the conduct of the learned referee who, notwithstanding great provocation because of the gross misconduct of the appellant, conducted the hearings with admirable patience and forbearance, the assignments of error present only questions of fact. The findings of fact by a referee, confirmed by the court, will not be disturbed unless manifest error is made to appear. From a careful examination of the record we not only find no error, but are convinced that the conclusions reached are correct. It may be said of them, as it was said on the former appeal in this case, that they involved only questions of fact, the further discussion of which would be of interest to no one but the parties.

Both decrees are affirmed at the cost of the appellant.


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    Watson v. McManus, Appellant.
    ■ Judgment — Interest on judgment — Injunction—Appeal.
    1. Interest is a legal incident of every judgment.
    2. Judgments bear interest from the time obtained until time of sale or until satisfaction be made. Interest is as distinctly a substantive part of the debt as if the obligation to pay it was founded on a contract for interest.

      Judgment — Interest on judgment — Payment into court.

    3. A defendant in a judgment can relieve himself of any obligation for interest by paying the amount of the judgment into court.

      Judgment — Interest on judgment — Stopping of payment of principal.

      4. The statutory provision for interest on a judgment should not be extended to require payment of interest to one at whose instance the payment of the principal has been stopped.

      Judgment — Order of court not to pay.

    5. A debtor directed not to pay a judgment by order of court cannot be said to be in default but rather to be in the position of one who has made a tender.
    6. Where a defendant in a judgment takes an appeal which fails and in the meantime an assignee of the plaintiff claims the fund in the defendant’s hand, interest runs on the judgment from the date of its entry, and the defendant can only stop the running of interest by the payment of the money into court in proper proceedings taken therefor. If, however, the claimant of the fund by a bill in equity enjoins the defendant from paying the amount of the judgment to the plaintiff, interest will cease to run from the date of the award of the injunction. In such a case the rights of the parties are not affected by the fact that an injunction was not actually issued and served, if the defendant had knowledge of the order awarding the injunction, and observed it without compulsion.
    Argued Jan. 11, 1909.
    Appeals, Nos. 248 and 317, Jan. T., 1908, by plaintiff and defendant, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 4,416, on bill and cross bill in case of James V. Watson v. Michael McManus, Defendant, and the City of Philadelphia, John M. Walton, Controller of the City of Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to restrain the collection of payment of a judgment. Before Brégy, P. J.
    The questions involved are stated in the opinion of the Supreme Court.
    The court below entered the following decree: ■■ ■
    And now, June 29, 1908, the rule of June 2, 1908, to show cause why a final decree commanding and directing the said Michael McManus, one, of the defendants herein, or his attorney, to mark to the use of James V. Watson, the judgment in the suit of Michael McManus v. The City of Philadelphia, in the court of common pleas No. 1, of December Term, 1898, No. 547, having been made absolute, it is ordered, adjudged and decreed as follows:
    1. That the said Michael McManus, defendant herein, within five days from the date of this decree mark to the use of James Y. Watson, plaintiff herein, the judgment in the suit of Michael McManus v. The City of Philadelphia, in the court of common pleas No. 1, of December Term 1898, No. 547.
    2. That in default of said Michael McManus so marking said judgment to the use of said James V. Watson as above directed, the prothonotary is hereby ordered and directed to mark said judgment to the use of said James V. Watson.
    3. That upon the marking of said judgment to the use of said James V. Watson, he, the said James V. Watson, have full power and authority to enforce payment' of the same, provided, nevertheless, that interest on said judgment of Michael McManus v. The City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, is to be calculated and to run only from the date of the filing of the referee’s report in said suit, namely, February 2, 1904, to the date of the awarding of the injunction against the city of Philadelphia in this suit, namely, January 15,1907, unless otherwise ordered by the court.

      Errors assigned were as follows:
    1. The third paragraph of the decree, quoting it.
    2. In awarding and entering the decree that interest on the judgment of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, should be calculated and run to January 15, 1907.
    3. In not entering a decree that interest on the judgment of Michael McManus v. City of Philadelphia, court of common pleas No. 1, of December Term, 1898, No. 547, should be calculated and run only from the date of the filing of the referee’s report in said suit, namely, February 2, 1904, to the date of filing the bill in equity and the issuing of the injunction in this suit restraining the said Michael McManus from collecting the said judgment from the city of Philadelphia.
    4. In authorizing the said James V. Watson to collect any interest upon the said judgment of Michael McManus against the city of Philadelphia, pending the litigation between the said James V. Watson and the said Michael McManus to determine who was entitled to be paid by the said city of Philadelphia.

      John G. Johnson, with him Geo. R. Van Dusen, for James Y. Watson, appellant and appellee.
    — Wherever one retains the money belonging to another, the legal compensation for the use of the money shall be charged and allowed: Crawford v. Willing, 4 Dall. 286.
    Mere readiness to pay a debt will not excuse the payment of interest: Hummel v. Brown, 24 Pa. 310.

      James Alcorn, assistant city solicitor, with him Harry T. Kingston and J. Howard Gendell, city solicitor, for city of Philadelphia, appellant and appellee.
    — It is settled law that in the case of an interpleader, the stakeholder is not chargeable with interest pending the proceedings: Barnes v. Bamberger, 196 Pa. 123; Mackey v. Hodgson, 9 Pa. 468; Irwin v. R. R. Co., 43 Pa. 488; Rushton v. Rowe, 64 Pa. 63; Stewart v. Stocker, 13 S. & R. 199.
    The payment of money into court is not a factor in determining whether interest is chargeable. It is only because the defendant is in default and refuses to pay, or delays payment, that interest attaches. When by the process of the law he is prevented from paying, he is not in default and is not liable for interest. It matters not whether he pays the money into court or keeps it: Irwin v. R. R. Co., 43 Pa. 488; Barnes v. Bamberger, 196 Pa. 123; McManus v. Philadelphia, 211 Pa. 394.
    March 1, 1909:
   Opinion by

Mr. Justice Fell,

These are cross appeals and may be considered together. That of the city of Philadelphia, relates to its liability for .interest on a judgment against it after the date of a decree in another proceeding enjoining the plaintiff in the judgment from collecting it, pending litigation between him and another person to whom he had assigned his claim against the city, to determine to whom the judgment should be paid. The appeal of the plaintiff relates to his right to recover interest on the judgment after a decree awarding an injunction to restrain the city from paying the plaintiff in the judgment, no injunction having been issued and the city having taken- no steps to pay the money into court.

McManus, one of the defendants, obtained a judgment against the city in an action on a contract. Watson, the plaintiff here, claimed the money due on the judgment by virtue of an assignment by McManus, in consideration of advances made to him to enable him to carry out his contract. Proceedings in equity between these parties were pending for the adjustment of an account for advances made and moneys received and expended by Watson, -and he filed a bill for an injunction to restrain McManus from collecting his judgment. A demurrer to the bill was sustained April 20, 1904, and the preliminary injunction was thereby dissolved. Watson then filed an amended bill making the city a party, under which an injunction was awarded January 15, 1907, restraining Mc-Manus from collecting, and the city from paying, the judgment until a final decree should be entered in the equity suit between Watson and McManus. After decree in the latter proceeding in favor of Watson, the court in this proceeding by decree directed the judgment obtained by McManus against the city to be marked to the use of Watson and authorized him to enforce the payment of the same, with interest from the date of the entry of the judgment, February 2, 1904, to the date of the awarding of the injunction against the city, January 15, 1907.

The contention of the city, the appellant in the first appeal, is that it is not liable for interest on the judgment after the date of the injunction, February 20,1904, restraining McManus from collecting, because it was not in default. It was not a party to the proceeding, and the injunction fell when the demurrer was sustained on April 20, 1904, and there was no injunction in the proceeding to which it was a party either against Mc-Manus or against it until January 15,1907, the date to which the running of interest against it was limited by the court. In the meantime it had an appeal pending in which it contested the amount of the judgment, which was decided against it April 10, 1905. In the opinion of this court on that appeal it was said in reference to an order staying execution: “When the judgment was entered, it was the duty of the city to pay, and if there was another claimant to the fund, the proper practice would have been to ask for a rule on the plaintiff to show cause why leave should not be granted to pay the money into court in discharge of the judgment;” and the record was remitted with leave to the city to ask for a rule to show cause why it should not be permitted to pay the money into court: McManus v. Philadelphia, 211 Pa. 394. By Act of 1700, sec. 2, 1 Sm. L. 7, judgments bear interest from the time obtained until time of sale or until satisfaction be made. By this act, interest is a legal incident of every judgment: Cochran v. Cummings, 4 Dallas, 252; Commonwealth v. Miller, 8 S. & R. 452. It is as distinctly a substantive part of the debt as if the obligation to pay it was founded on a contract for interest. “Where the terms of an obligation comprehend interest, it is inaccurate to say interest is added by way of damages, for it is a substantive part of the debt as much as the principal is:” Hummel v. Brown, 24 Pa. 310. During a considerable portion of the time after judgment had been entered against the city, it resisted payment by an appeal. After final judgment against it, it could have relieved itself of any obligation for interest by paying the amount of the judgment into court. Not having done this, it is liable for interest.

The cross appeal by the plaintiff, Watson, presents the question of the liability of the city for interest after January 15, 1907, the date of the awarding of the injunction restraining McManus from collecting, and the city from paying, the judgment. After that date, the city could not pay, and it cannot be said that it was in default nor that it was under any duty except to obey the order of the court. This order had been procured by the plaintiff and payment had been stopped by him. The statutory provision for interest on a judgment should not be extended to require payment of interest to one at whose instance the payment of the principal has been stopped. A debtor, directed not to pay by order of court, cannot be said to be in default but rather to be in the position of one who has made a tender. The rights of the parties are not affected by the fact that an injunction was not actually issued and served. The city had knowledge of the order awarding an injunction and very properly observed it without compulsion.

The appeals are dismissed and the decree of the court is affirmed.


text:
    Sykes, Appellant, v. Thornton.

      Evidence — Witness—Opinions as to values — Expert—Replevin—Findings of fact.

    1. On an issue in replevin tried before a referee to determine the value of looms and similar machinery, a party defendant who has had large experience in the manufacture of textile goods and who has bought, used and sold looms and similar machinery may express an opinion as to value, and the referee may base his findings thereon although several witnesses for the plaintiff testify to a lower valuation.
    2. To successfully challenge the findings of a referee, it is not enough to point to evidence sufficient to support a different finding. It must be shown that there is no evidence sufficient to sustain the referee’s findings, and this is especially so after they have been considered and approved by the court below.
    Argued Jan. 14, 1909.
    Appeal, No. 296, Jan. T., 1908, by plaintiffs, from order of C. P. No. 3, Phila. Co., Sept. T., 1903, No. 2,838, dismissing exceptions to report of referee in case of Walter R. Sykes et al., copartners trading as Sykes Brothers, v. William Thornton et al., committee of creditors of estate of M. J. Galbraith, deceased, and James H. Lee, the person found in possession of the goods and chattels.
    Before Mitchell, C. J., Fell, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to the report of William Gray Knowles, Esq., the referee.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to report of referee.

      Samuel P. Tull, for appellants,
    cited: Graham v. Pennsylvania Co., 139 Pa. 149.

      W. W. Porter, of Porter, Foulkrod & McCullagh, for appellees,
    cited: Betz v. Hummel, 13 Atl. Repr. 938; Ardesco Oil Co. v. Gilson, 63 Pa. 146; Brindle v. Adams, 3 W. N. C. 5; Pure Oil Co. v. Terry, 209 Pa. 403.
    March 1, 1909:
   Opinion by

Mr. Justice Stewart,

The assignments of error bring nothing to our attention which can properly be made the subject of review, with perhaps a single exception. The case was tried before a referee. The plaintiffs having admitted that the superior right to the goods they had replevied was in the defendants, nothing remained for the referee but to assess the damages resulting from the taking. The goods consisted of looms and other like machinery adapted to the manufacture of textile fabrics, in place and employed when seized. Defendants called but a single witness on this branch of the case. No objection was made to the competency of this witness until the close of his testimony, when a motion was made to strike it out on the ground that the opinion expressed by the witness, as to the value of the goods, was not based on any special or peculiar knowledge of the subject. We do not find that the referee made any direct ruling on the motion; but he makes it clear in his discussion of the case that he gave the testimony of the witness full consideration, and allowed it no little weight. This is assigned for error. We need only say that he would have committed no error had he specifically refused the motion. The witness was clearly competent to express an opinion as to the value of the goods. He was not only a party defendant, but his testimony shows that he had large experience in the manufacture of textile goods and that he had bought, used and sold machinery such as this. Whether technically an expert or not, his testimony shows that he was possessed of knowledge on the particular matter that was being inquired into, which abundantly qualified him to express an intelligent opinion. With the witness’s competency established, it was exclusively for the referee to determine what weight should be allowed his testimony. The plaintiffs called several witnesses in reply, each of whom testified to a much lower value than that claimed by the defendants. It is complained that the award is not only excessive, but is in open disregard of the weight of the evidence. Into the merit of this complaint we cannot inquire. The award is admittedly within the amount testified to by defendants’ witness as to the actual value of the goods. It has support, therefore, in the evidence, and this circumstance is conclusive against the plaintiffs. It has hs well the approval of the court below. The rule in such case is thus stated in Philadephia Company v. United Gas Improvement Company, 180 Pa. 235: “To successfully challenge the findings of a referee, it is not enough to point to evidence sufficient to support a different finding. It must be shown that there is no evidence sufficient to sustain the referee’s findings; and this is especially so after they have been considered and approved by the court below.”

The assignments of error are overruled, and the judgment is affirmed.


author: Pee Cubiam,

text:
    Reed, Appellant, v. Norristown Electric Light & Power Company.

      Negligence — Electric light company — Master and servant — Lineman— Failure to wear gloves — Nonsuit.
    Where a lineman in the employ of a telephone company works on a pole on which are stretched wires of the telephone company and high tension wires of an electric light company, and is injured by a shock received from a telephone wire charged from a high tension wire, he is properly nonsuited in an action against the electric light company, if it appears that he failed to wear gloves while descending the pole, and that the charging of the telephone wire was due to no improper or negligent construction by the electric light company, but was due to an improper arrangement of the wires by the telephone company.
    Argued Feb. 1, 1909.
    Appeal, No. 188, Jan. T., 1908, by plaintiff, from order of C. P. Montgomery Co., Oct. T., 1906, No. 173, refusing to take off nonsuit in case of Benjamin F.Reed v. Norristown Electric Light & Power Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. Before Weand, J.
    At thé trial the court entered a compulsory nonsuit.
    On a motion to take off the nonsuit Weand, J., filed the following opinion:
    The plaintiff had been a lineman for sixteen or eighteen years and knew of the danger attending the contact with charged high tension electric wires.
    At the time of the accident which gave rise to this suit, he was in the employ of the Delaware & Atlantic Telephone Co., and was at work on a pole, to which was stretched the wires of his employer’s company as well as the wires of the defendant company. Whilst descending from the pole, his hat was knocked off, and in his endeavor to catch it he grasped the guy wire of the Delaware & Atlantic T. & T. Co. and received a shock which has injured him severely. From the evidence it appeared that both companies had their guy wires attached to a stable at the same point, and which brought them in contact, and the claim of plaintiff is that by the negligence of the defendant company in allowing an unused piece of wire to remain on top of the pole, by contact with high tension wire it caused the current in the defendant’s charged wire to be communicated to defendant’s guy wire and thence to that of the Delaware & Atlantic Co.’s guy wire.
    The plaintiff knew of the danger attending contact with a live wire and the necessity for protection when working on poles containing such wires; that there was a high tension wire on the pole; that rubber gloves were a protection and usually used; he also knew that his employers provided their employees with such gloves for use when working on poles supporting charged high tension wires, and that gloves were actually in a wagon at the place where he was working, which he had the right to use, and was required to use by the printed rules of his company: We thought he was guilty of contributory negligence in not using gloves and directed a compulsory nonsuit. His plea that it is not usual to wear gloves in descending from a pole; or that there was no apparent danger; or that he had no reason to suppose that the guy wire was charged, are, in our opinion, insufficient. There is always danger when working on poles containing high tension electric wires and accident must always be expected. It is not only the apparent danger to guard against, but also that which may happen. This is exemplified by the facts of this case, and how important it is obey the rule of absolute safety. That he thought on descending he had passed the danger point shows that no risks should be taken — ignorance that the gun was loaded has lost many lives. We base our conclusions on the cases of Hart v. Allegheny County Light Co., 201 Pa. 234, and Moyer v. Electric Co., 14 Pa. Dist. Rep. 798.
    The first case is exactly in point — in fact and law. The failure to use gloves provided for him was held to be contributory negligence which barred a recovery. We can see no distinction between the cases.
    In Moyer v. Metropolitan Electric Company, 14 Pa. Dist. Rep. 798, the same ruling was announced and the same conclusion reached.
    Junior v. Missouri Electric Light & Power Co., 127 Missouri, 79 (29 S. W. Repr. 988), is a case of similar character. It was there said, “The employment was very hazardous and inherently dangerous in its very nature, but he undertook it with knowledge of its dangers, and he was bound to exercise care to avoid its consequences. The evidence shows most conclusively that by his own neglect of the means furnished him by his employer he brought his hands in contact with the wires and lost his life. It is greatly to be regretted, but the master is not liable.”
    The negligence consisted in not wearing gloves.
    The authorities cited support our conclusion, and plaintiff was guilty of such negligence as will prevent a recovery.
    And now, December 2, 1907, the motion to take off nonsuit is overruled.

      Error assigned was refusal to take off nonsuit:'

      Enoch W. C. Greene, with him Jeremiah B.. Larzelere, Jr., for appellant.
    — If plaintiff’s injuries were caused through tlie’negligence of the defendant company and the Delaware and Atlantic Telegraph and Telephone Company, either company may be sued separately or together: Quill v. Empire State Tel., etc., Co., 92 Hun (N. Y.), 539; Ahern v. Oregon Tel., etc., Co., 24 Oregon, 276 (33 Pac. Repr. 403).
    No court of this state has ever before decided as a matter of law that a lineman is guilty of contributory negligence for a failure to wear rubber gloves where he was working upon or near a wire which he had a right to presume was dead. Rubber gloves are never used by a lineman descending a pole. The case was for the jury: Mahan v. Newton, etc., Street Railway Co., 189 Mass. 1 (75 N. E. Repr. 59); Harroun v. Brush Electric Light Company, 12 App. Div. (N. Y.) 126; Cessna v. Metropolitan Street Railway Co., 118 Mo. App. 659 (95 S. W. Repr. 277); Knowlton v. Des Moines Edison Light Company, 117 Iowa, 451 (90 N. W. Repr. 818).

      Nicholas H. Larzelere, with him Franklin L. Wright, for appellee.
    — Negligence can only exist where knowledge of the defective condition exists in the defendant actually or constructively. There was no actual notice, and the defect is not shown to have existed sufficient time to charge the defendant with it: Mensch v. Penna. R. R. Co., 150 Pa. 598; Bemisch v. Roberts, 143 Pa. 1; Kepner v. Harrisburg Traction Co., 183 Pa. 24; East End Oil Co. v. Penna. Torpedo Co., 190 Pa. 350; Phila. & Reading R. R. Co. v. Hughes, 119 Pa. 301.
    No act of the appellee was the proximate cause of the accident. It was appellant’s employer or fellow workmen alone who created the danger and made it possible: Bannon v. Penna. R. R. Co., 29 Pa. Superior Ct. 231; West Mahonoy Twp. v. Watson, 116 Pa. 344; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Penna. R. R. Co. v. Kerr, 62 Pa. 353; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Wood v. Penna. R. R. Co., 177 Pa. 306; Ahern v. Oregon Telephone, etc., Co., 24 Oregon, 276 (33 Pac. Repr. 403).
    Plaintiff was guilty of contributory negligence: Hart v. Allegheny County Light Co., 201 Pa. 234; Lindberg v. Nat. Tube Co., 213 Pa. 545; Bemisch v. Roberts, 143 Pa. 1; Weir v. Haverford Electric Light Co., 221 Pa. 611; Bowen v. Penna. R. R. Co., 219 Pa. 405; Huber v. LaCrosse City Ry. Co., 92 Wis. 636 (66 N. W. Repr. 708); Martin v. Phila. & Reading Ry. Co., 200 Pa. 603; Cypher v. Huntingdon, etc., R. R. & Coal Co., 149 Pa. 359; Ingram v. Lehigh Coal, etc., Co. 148 Pa. 177.
    Appellant failed to use rubber gloves, customarily used while working in the vicinity of high tension wires. Their use is a recognized necessity in the telephone and electric light business: Hart v. Light Co., 201 Pa. 234; Moyer v. Electric Co., 14 Pa. Dist. Rep. 798.
    March 1, 1909:
   Pee Cubiam,

A nonsuit was entered on the ground of the contributory negligence of the plaintiff in not wearing gloves while working on a pole on which there was a high tension electric light wire. The facts important in considering that question are stated in the opinion of the court overruling the motion to take off the nonsuit. An equally tenable ground for entering a nonsuit was the failure to show any negligence on the part of the defendant that was the proximate cause of the accident. The defendant’s guy wire extended from the top of a pole thirty-five feet high over private property to a hook in a stable wall eleven feet above the ground. At the pole this wire was seven feet above the wires of the telephone company, the plaintiff’s employer. About two months before the accident the telephone company extended a guy wire from the place where its wires were placed on the pole to the same hook in the stable wall. On this wire there was an insulation ball thirty inches from the pole. The result of this-was that, since’the guy wires were hr contact at the hook to which they were fastened, if the defendant’s wire-became charged, the current would pass to the line of the telephone company as far as the insulating ball. Whatever danger there was in this situation was brought about by the telephone company in its use of the pole. The defendant’s construction was' safe. The guy wire was above the réach of anyone oh the'ground or-anyone working oh the pole, and its-accidental charging would' have been harmless.

•-The judgment is ¿ffirmed


text:
    Tyson’s Estate.

      Wills — Probate—Issue devisavit vel non — Undue influence — Refusal of issue.

    An issue devisavit vel non on the ground of undue influence is properly-refused, where it is shown that the testatrix, an elderly woman strong in mind, with clear intellect, knew her property and her relatives, that she dictated to counsel while alone with him the memorandum from which the, will was written, giving reasons for making the legacies and for giving nothing to the contestant who had received large gifts from her and her brothers; that later she revised the paper when alone with her counsel who explained to her the effect the changes would have in enlarging the share of the residuary legatee; and that no one interested in the will or codicil was present when the directions for writing the same were given nor at their execution.
    Argued Feb. 1, 1909.
    Appeal, No. 280, Jan. T., 1908, by Evan Kimbel, from decree of O. C. Montgomery Co., Oct. T., 1907, No. 28, refusing an issue devisavit vel non in estate of Sarah K. Tyson, deceased.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Petition for an issue devisavit vel non. Before .Solly, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in refusing an issue devisavit vel non.

      Louis M. Childs, with him E. L. Hallman, Wm. & J. C. Stuckert, Grim & Grim and Henry O. Harris, for appellant.

      John M. Dettra, Montgomery Evans and N. H. Larzelere, for appellees.
    March 1, 1909:
   Per Curiam,

This appeal is from the refusal of an issue devisavit vel non. The reasons assigned for the granting of an issue were that the decedent was without testamentary capacity and that the will and codicil were procured by undue influence exercised by the two principal legatees. It was frankly conceded at the argument in this court that the first reason was not sustained and that the evidence would not have justified the orphans’ court in granting an issue as to want of testamentary capacity.

On the question as to the exercise of undue influence by the two principal beneficiaries, the finding of the court is thus stated: “There is no evidence whatever to warrant the finding that the will and codicil are the result of any influence exercised over the decedent by either of these two men. The uncontradicted evidence is that the decedent, although weak in body, was strong in mind, and had a clear intellect; knew her property; her relatives; was a woman of firmness, directed the management of her farm and household affairs; gave directions as to repairs, etc., ordered and purchased her household supplies; took a lively interest in current events; was a daily reader of the newspapers and the Bible and other books; and was a remarkable woman for one of her age. A host of witnesses— neighbors, friends of the decedent, business men with whom she dealt, her physician, her counsel, the scriveners of the will and codicil, and others who were well acquainted with her— testified she was possessed of testamentary capacity; was capable of and did attend to ordinary business affairs; was of strong will power, and could not be dominated or controlled.”

To this finding of facts it may be added that the will and codicil were written by counsel of the testatrix, one of whom had for many years represented her brothers, from whom she derived her estate. She dictated the memorandum from which the will, containing thirty-seven legacies, was written, while alone with her counsel, and assigned her reasons for making the legacies and for giving nothing to the appellant, who had received large gifts from her and her brothers.. Six months later, when the codicil revoking some bequests, and reducing others, was written, she was alone with her counsel, who explained to her the effect the change in the will would have in enlarging the share of the residuary legatee. No one interested in the will was present when the directions for writing the will were given nor at its execution. It is as clear as anything can be made by human testimony that she knew what • estate she possessed and what she wanted to dp with it, and that no influence of any kind was brought to bear upon her at the time of its execution. The most that can be said of the testimony against the will is that it showed that there was an opportunity for the- exercise of influence, but there was no evidence- of domination or cdntrol.

. The order of “the court refusing an issue is affirmed at the cost of the appellant.