author: Mr. Justice Stewart,

text:
    Amos v. Delaware River Ferry Company, Appellant.

      Negligence — Ferries—Landing of passengers — Absence of gang plank.

    1. Where a ferry company fails to supply a gang plank to connect the boat with the floating dock at the point where passengers land, although it supplies one at the center of the boat for horses, and it appears that a passenger is injured while landing owing to the absence of such plank, and that the accident could have been avoided if a plank had been supplied, the company is guilty of negligence, and liable in damages to the person injured. In such a case it is not required of the plaintiff to show that it was usual and proper for ferryboats to have gang planks.
    2. In such a case the plaintiff’s contributory negligence is a question for the jury where it appears that plaintiff was in the act of stepping from the boat to the dock when the boat and dock were in contact, presenting an even surface, that she then looked ahead and stepped, and as she was doing so the boat receded somewhat, and her foot in? stead of reaching the dock went into the space between and was crushed by the returning surge of the boat.

      Negligence — ■Damages—Permanent disability — Expectancy of life.

    3. Where the age of a plaintiff at the time of an accident, and her previous physical condition and habits of life are in evidence and plaintiff herself appears, the jury are competent to judge her probable expectancy of life, and where the medical testimony shows that her disability will likely be permanent and always accompanied by pain and suffering to relieve which electrical and other treatment will be required, such treatment may be considered in estimating the damages.

      Negligence — Ships and shipping — Ferryboat—Limitation of liability —Value of vessel and freight — Jurisdiction of state and federal courts.

    4. The fact that the laws of Pennsylvania forbid a common carrier from limiting his liability for negligence does not take away the jurisdiction of the state court because the federal laws limit the liability of the owner of a vessel in the operation of which a person is injured, to the amount or value of the interest of the owner in the vessel and freight.
    5. In such a ease the vessel owner may make his defense of limited liability if he so chooses, and he may if he desires, have a special finding as to the value of the vessel.
    Argued March 28, 1910.
    Appeal, No. 65, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1905, No. 3,206, on verdict for plaintiff in case of Jennie Amos v. Delaware River Ferry Company of New Jersey.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial the court admitted under objection and exception evidence as to the costs of electrical treatment. [1, 2]
    The court charged in part as follows:
    [Dr. Franklin, the visiting surgeon at St. Joseph’s Hospital, testified that he had seen her three or four times during the last three or four years; for three years she had continued to get worse; he did not look for any improvement, and, in his opinion, the injury was the cause of her condition. The best means of treatment, in his opinion, would be massage, four or five times a week, which would cost an average of $1.00 a treatment. He said that sometimes electric treatment had been beneficial, but he had not found much benefit from it in these cases, and could not say whether or not it would be desirable in this case, but that if such treatment was employed he would recommend the application once or twice a week, which would cost $1.00.] [3]
    [If the evidence satisfies you that the injury permanently disables her you may regard her age and her probable duration of life and working capacity with a view of forming your judgment as to what amount she would have been able to earn if she had not suffered this injury, and that sum and no more should be awarded to her. She would not be entitled to an amount which invested would yield at interest the loss in earnings, but only such sum as will equal the money she would have earned if the injury had not occurred.] [4]
    [The plaintiff testified that she saw there was no gang plank. The negligence charged by the plaintiff is that the persons in charge of the boat should have secured it-in such a manner as to prevent it from surging back.] [5] Defendant presented these points:
    1. The plaintiff in this case having alleged that it was negligence on the part of the defendant to fail to supply a gang plank for the purpose of permitting her to disembark from the ferryboat when it. was tied up in the dock at Kaighn’s Point, must first prove that the proper and careful means for the disembarking of passengers from a ferryboat by other companies operating ferryboats is to place a gang plank at the exits for that purpose. The mere absence of a gang plank at the time of this accident raises no presumption of negligence. Answer: Refused. [6]
    2. The presence or absence of a gang plank from the ferryboat to the dock has no bearing upon the negligence of the defendant until the plaintiff has first proved by competent evidence the necessity for a gang plank in the exercise of the duty owed by the defendant company to her as a passenger, and you must, therefore, disregard any evidence in this case concerning its absence in finding whether or not there was negligence on the part of the defendant. Answer: Refused. [7j
    5. If you believe from the evidence in this case that the plaintiff saw or could have seen the motion of the ferryboat, in the manner described by the witnesses, she was guilty of contributory negligence in not stepping from the boat to the dock carefully, because she had knowledge of the danger at that point, and her own negligence is an element which contributed to her injury, so that you must find a verdict for the defendant. Answer: Refused. [8]
    6. Under all the evidence in this case your verdict must be for the defendant. Answer: Refused. [9]
    Verdict and judgment for plaintiff for $8,000. Defendant appealed.

      Errors assigned were (1, 2) ruling on evidence and (3-9) above instructions, quoting them.

      Wm. Clarke Mason, for appellant.
    The trial judge erred in admitting evidence of the cost of electric and massage treatment, and charging .the jury upon the measure of damages: Amberson Ave., 179 Pa. 634; Burns v. Penna. Railroad Co., 219 Pa. 225; Goodhart v. Penna. Railroad Co., 177 Pa. 1; McHugh v. Schlosser, 159 Pa. 480; Penna. Railroad Co. v. Butler, 57 Pa. 335; Wallace v. Penna. Railroad Co., 219 Pa. 327.
    The evidence offered by the plaintiff was not sufficient to prove negligence on the part of the defendant: Berninger v. Railroad Co., 203 Pa. 516; Seddon v. Bickley, 153 Pa. 271; Green v. Railroad Co., 214 Pa. 240; Herstine v. Railroad Co., 151 Pa. 244; Ault v. Cowan, 20 Pa. Superior Ct. 616; Ginn v. Railroad Co., 220 Pa. 552.
    The evidence in the plaintiff’s case shows that the plaintiff was guilty of negligence: Graham v. Penna. Co., 139 Pa. 149; Lerner v. Philadelphia, 221 Pa. 294; Hopkins v. R. R. Co., 225 Pa. 193.

      May 24, 1910:
    The admiralty court of the United States has exclusive jurisdiction of this case: Loughin v. McCaulley, 186 Pa. 517.
    Admiralty has exclusive jurisdiction of a proceeding by shipowners to limit their liability: Quinlan v. Pew, 56 Fed. Repr. 111; In re Starin, 124 Fed. Repr. 101; The John K. Gilkinson, 150 Fed. Repr. 454; The Southside, 155 Fed. Repr. 364; The Hoffmans, 171 Fed. Repr. 455; Loughin v. McCaulley, 186 Pa. 517; Butler v. Steamship Co., 130 U. S. 527 (9 Sup. Ct. Repr. 612); Norwich Co. v. Wright, 80 U. S. 104; Elwell v. Geibei, 33 Fed. Repr. 71; The Mary Lord, 31 Fed. Repr. 416; The S. A. McCaulley, 99 Fed. Repr. 302; The Lotta, 150 Fed. Repr. 219.

      Thomas Learning, with him Michael Francis Doyle, for appellee.
    The learned trial judge did not err in admitting evidence of the cost of electric and massage treatment and in charging the jury upon the measure of damages.
    The evidence is clear that the defendant was guilty of negligence: R. R. Co. v. Palmer, 33 N. J. L. 90; Spero v. R. R. Co., 21 Misc. (N. Y.) 683.
    There is no evidence of contributory negligence on the part of the plaintiff.
    The admiralty court of the United States has not ex-, elusive jurisdiction of the case at bar: Baird v. Daly, 57 N. Y. 236; Brown v. Gilmore, 92 Pa. 40; Chase v. Steamboat Co., 9 R. I. 419; Steamer Petrel v. Dumont, 28 Ohio, 602; The Moses Taylor, 71 U. S. 411; The Hine v. Trevor, 71 U. S. 555; Waring v. Clarke, 46 U. S. 441; Navigation Co. v. Merchants’ Bank, 47 U. S. 344; Steamboat Co. v. Chase, 83 U. S. 522; Taylor v. Carryl, 61 U. S. 583; Schoonmaker v. Gilmore, 102 U. S. 118.
   Opinion by

Mr. Justice Stewart,

The plaintiff was a passenger on a ferryboat operated by the defendant company between points on the Delaware river. The boat having reached its terminal, was docked in the usual way, and, the guards having been removed, passengers were invited to disembark. No gang plank connected the boat with the floating dock to which it was moored. While plaintiff was in the act of stepping from the boat to the dock the boat receded somewhat, and plaintiff’s foot instead of reaching the dock went into the space between and was crushed by the returning surge of the boat. The negligence charged was the failure to provide a gang plank. The trial resulted in a verdict for the plaintiff. It is now complained that there should have been no submission of the case, inasmuch as it was not shown that it is usual and proper for ferryboats to be supplied with gang planks. It is quite evident that had there been a gang plank there in place, this accident could not have occurred. It may be entirely practicable to moor a ferryboat to a floating dock in a way which will preserve constant contact between the two, and at the same time a constant level surface. However this may be, we know that it was not done in this instance; and we have as the result an accident which might readily have been foreseen as likely to happen, and which by the exercise of common prudence would have been avoided. Tbe plaintiff was not required to show that it was usual and proper for ferryboats to have gang planks. She did show that the defendant company in this instance thought it prudent, if not necessary, to have a gang plank in the center of the boat for the safe passage of horses from the boat, for it had supplied one. Why the same precaution that was taken to avoid accidents to horses was not taken to avoid accidents to passengers, was for the defendant to explain. To cite Herstine v. Lehigh Valley R. R. Co., 151 Pa. 244, is to show a clear misapprehension of what was there ruled. We quote from the opinion in the case: “It is now well settled that the rule in Laing v. Colder, 8 Pa. 479, is applicable to cases where a passenger is injured in, or because of, an accident happening to the train, boat or other kinds of transportation. The reason of the rule in such cases is that a contract to carry is, within the understanding of both parties, a contract to carry safely; and a breach of this contract by reason of the failure or insufficiency of any of the means provided for the carriage, puts the carrier upon the defensive; the construction of these roads, cars and boats, and their management and care, are subjects peculiarly within the knowledge of the carrier, and with which the passenger has no means of becoming familiar. When an accident occurs, therefore, the presumption is that it is due to the want of care in construction, repair or management, and the burden of showing its own freedom from fault is on the carrier.” So, in this case, the accident having occurred in the- manner stated, the burden was on the defendant to show circumstances which would acquit it of blame. It-showed nothing.

With quite as little reason can the submission of the question of plaintiff’s contributory negligence be complained of by the defendant. A finding adverse to the plaintiff on this ground would have had no support in the evidence. Plaintiff testified that as she approached the end of the boat, with some fifteen passengers ahead of her, she looked and saw that there was no gang plank, but that the boat and dock were then in contact presenting an even surface, and that she then looked ahead and stepped. She was not required to keep her eyes upon the point of contact between the boat and landing; she had a right to assume that since there was no gang plank there, that an equally safe way had been provided, and that the designated path would be safe for her to follow. Her narrative of the occurrence, neither qualified nor contradicted, showed a case clear of contributory negligence, and it was extreme indulgence to the defendant ■ to allow a submission of the question to the jury.

The exception taken to the ruling of the court with respect to the measure of damages is without merit. The ruling was conditioned on a finding of permanent disability by the jury. The age of plaintiff at the time of the accident was in evidence; so also was her previous physical condition and habits of life. With this evidence, and the witness before them, the jury were competent to form their own judgment as to her expectancy of life. It was shown by medical testimony that not only was her disability likely to be permanent, but that no limit in time, other than her life, could be put with certainty to the pain and suffering which she would endure in consequence. For mitigation of this pain it was shown that electrical and other treatment would be required. It was objected that because it was not shown with greater degree of certainty how long such treatment would be required, it was not to be considered in estimating plaintiff’s damages. In this, as in all elements of damage which have regard to the future, it is a question of likelihood as to continuance; but that is always for the jury. A sufficient basis was here afforded by the evidence for an intelligent judgment, and that was all that was required.

Finally, it is urged that the court was without jurisdiction to consider and adjudge the case. The argument advanced is, that under the laws of this state a common carrier may not limit his liability for negligence, and because of this fact the courts of the state cannot afford the defendant the benefit to which it is entitled under the acts of congress, and the rules of the supreme court of the United States for their enforcement, which acts and rules limit the liability in cases of this character to the amount or value of the interest of the owner in the vessel and freight then pending. The conclusion sought to be derived is that exclusive jurisdiction therefore is in the admiralty courts. We do not understand that the jurisdiction of the state court is challenged on any other ground than that above stated, namely, its inability to afford the relief allowed under federal statutes. Indeed, in the light of the decisions of this court, which are entirely in accord with the accepted doctrine of both federal and state courts, apart from this one consideration now urged upon our attention, the concurrent jurisdiction of the state courts with the federal where a common-law right exists and the remedy sought is a common-law remedy, may be regarded as definitely and fully settled.' The exclusive jurisdiction which is allowed the federal courts, as said above, is the matter of enforcement of the maritime lien in the way provided by the act of congress. This the state cannot do. Some federal and state cases recognizing the concurrent jurisdiction of the state courts where a common-law right is asserted, go so far as to hold that where there is but a single claim of damage, and no apportionment of the proceeds of the vessel is needed among several claimants, there is no need to adopt the methods provided by federal law, and that the state courts may apply their own remedy. Others held that the number of claimants is of no importance, and whether one or several, the federal courts alone have authority in the premises. The argument fails to allow full effect to the decision of this court in Loughin v. McCaulley, 186 Pa. 517. That was' an action to recover damages for the death of plaintiff’s husband, alleged to have been caused by the negligent operation of a steam tug which was owned by several parties. An offer on part of defendant to show the value of the tug and their proportionate interest in it, for the purpose of limiting their liability, was refused. A judgment having been recovered by the plaintiff, on appeal the rejection of the evidence was assigned as error. The judgment was reversed with a venire. The case is express authority for these several propositions: (1) where the case involves a common-law right the jurisdiction of the federal and state courts is concurrent; (2) a vessel owner may make his defense of limited liability in a state court if he so chooses; (3) his right to have his liability limitation administered in the federal courts is not absolute, but is contingent upon something being done by the vessel owner; and (4) where the action proceeds in the common pleas, the vessel owner may, if he desire, have a special finding as to the value of the vessel. As to the first and second of these propositions, the case follows Albany City Ins. Co. v. Whitney, 70 Pa. 248, where the question of concurrent jurisdiction is distinctly settled. The following quotation from the opinion establishes the third, and it is too explicit to be misunderstood: “These statutory limitations of liability, so construed by the supreme court of the United States, would seem to settle the question in this case in favor of appellants. But it is argued for appellee that they cannot prevail against the prohibition in sec. 21, art. III, of the constitution of Pennsylvania against any limitation of the amount to be recovered for injuries resulting in death, and that in any view they cannot be administered by a Pennsylvania court in a common-law action. As to the first objection, it is clear that neither statute nor constitution of Pennsylvania can be set up against a right given by congress in its control of the maritime law of the country. That control is paramount, and when it has been exercised in a particular way all state authority must conform to it. The second objection, that the limitation cannot be administered by a state court in a common-law action, must depend primarily on the language of the acts of congress and the nature of the right which they confer. If such right is contingent on something to be done by the vessel owner or others, then we must look into the pleadings or the evidence of the acts of the parties. But if, on the other hand, the right is absolute, then clearly it cannot be defeated by the plaintiff’s choice of the tribunal, and if the state court is unable through defect of its jurisdiction over parties or subject-matter, or through its methods of procedure, to protect the right, then the court must dismiss the case for want of appropriate powers to determine it in accordance with the paramount law on the subject.” After discussing the provisions of the several acts of congress applicable, the opinion proceeds: “The provisions are manifestly in furtherance, not in restriction, of the vessel owner’s right, and are directory only, in the sense that they point out a method by which his right may be enforced, but are not exclusive of other methods which may be found effective for the same purpose. And such we understand to be the construction settled by the supreme court of the United States.” The conclusion derived from a discussion of the cases cited is, that the modes pointed out by the several acts of congress are in aid and not in restriction of the owner’s right to limit his liability, and are not therefore exclusive, but that the defense may be made in any form that the nature of the case and procedure of the court will permit. The opinion concludes: “We are of opinion that appellants’ right to make this defense is clear, and we see no difficulty in enforcing it in this action. They should have been permitted to show the value of the tug, and their respective proportions of ownership in it. The most convenient practice then would be, after appropriate instructions to the jury, to direct them if they found for the plaintiff to find specially in addition the value of the tug, and the proportionate ownership of the several defendants. With these facts specifically found, the verdict could be molded by the court into proper form with less danger of mistake than if the whole were left in a lump to the jury.” The plain logic of the opinion is that the right of a vessel owner to enforce a limited liability is not an absolute right, but contingent upon the owner asserting that right in the way provided by federal statute, that is, by applying in the admiralty court to have vessel or freight appraised. Until he does this, the jurisdiction of the common pleas is complete. Here the defendant made no request for a special finding as to the value of the boat; nor had it taken any steps to have the value adjudged in admiralty.

The assignments are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Me. Justice Stewart,

license: Public Domain

text:
    Young, Appellant, v. American Bonding Company of Baltimore.

      Principal and surely — Bond to secure contract — Variance from contract — Release of surety.

    1. Where a bond issued by a surety company refers to an agreement between the principal in the bond and the obligee, and recites so much of the agreement as relates to what the principal had engaged to do, and for the performance of which the surety had become liable, a variance in the performance of the contract from that portion recited in the bond will discharge the surety, if it appears that the ability of the principal to perform his part of the contract had been thereby materially lessened, and the risk of the surety correspondingly increased.
    2. The interest of a surety in an earlier contract between the principal and the obligee to which the surety is not a party can arise only at the point where the liability of the surety is touched, and where such liability is touched, it must be in connection with something material before the variance from the contract can be made available as a defense to the bond.
    3. The doctrine that a surety is a favorite of the law, and that a claim against him is strictissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee.
    4. In an action on a bond given to secure the performance of a contract where the principal claims that the obligee, the other party to the contract, had released him from all obligation to complete the work contemplated by the contract, and this claim is disputed and denied, the contention raised by the conflict of evidence must be passed upon as a question of fact by the jury.
    Argued March 28, 1910.
    Appeals, Nos. 74 and 75, Jan. T., 1910, by John L. Young, Kennedy Crossan and Jane Fortescue, in No. 74, and by Norman Kellogg in No. 75, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 2,594, on verdict against defendant, Norman Kellogg, and for American Bonding Company non obstante veredicto, in case of John L. Young, Kennedy Crossan and James Forteseue v. Norman Kellogg, George H. Thomas, David M. Andrew, Charles H. Basshor and the American Bonding Company of Baltimore.
    Before Fell, C. J., Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit upon a bond of suretyship. Before Will-son, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiffs for $27,500. Subsequently judgment was entered on the verdict against defendant, Norman Kellogg, and in favor of the defendant, the American Bonding Company, non obstante veredicto.

      Error assigned by plaintiffs was in entering judgment for the bonding company non obstante veredicto.

      Error assigned by Norman Kellogg was in dismissing his motion for judgment in favor of himself non obstante veredicto.

      Ellis Ames Ballard, with him Boyd Lee Spahr, for appellants, John L. Young et al.
    The bond was not given for the faithful performance of the agreement of February 26, 1906, but only for the accomplishment of a single act, namely, the completion of a building of a certain cost within a certain time: Shelton v. American Surety Co., 131 Fed. Repr. 210; New Haven v. National Steam Economizer Co., 79 Conn. 482 (65 Atl. Repr. 959); Baglin v. Title Guaranty & Surety Co., 166 Fed. Repr. 356; Guaranty Co. v. Brick Co., 191 U. S. 416 (24 Sup. Ct. Repr. 142); Atlantic Trust, etc., Co. v. Laurinburg, 163 Fed. Repr. 690; Alexandria Water Co. v. National Surety Co., 225 Pa. 1.
    There was no departure from the terms of the contract of February 26: Alexandria Water Co. v. National Surety Co., 225 Pa. 1; Warner v. Connecticut Mut. Life Ins. Co., 109 U. S. 357 (3 Sup. Ct. Repr. 221); Cross v. Allen, 141 U. S. 528 (12 Sup. Ct. Repr. 67).
    May 24, 1910:
    Even if there was a variance it was with the surety’s knowledge and assent: Roach v. Summers, 87 U. S. 165.

      Francis B. Bracken, for appellee, American Bonding Company.
    The American Bonding Company was discharged from liability as surety on the bond by reason of a material alteration or departure from the contract of February 26, 1906, under which, according to the condition of the bond, the building was to be erected by the principal therein, Norman Kellogg: Zeigler v. Hallahan, 131 Fed. Repr. 205; Shelton v. American Surety Co. of New York, 131 Fed. Repr. 210; Bensinger v. Wren, 100 Pa. 500; Bauschard Co. v. Fidelity & Casualty Co., 21 Pa. Superior Ct. 370; Nesbitt v. Turner, 155 Pa. 429; Alexandria Water Co. v. National Surety Co., 225 Pa. 1; Holme v. Brunskill, L. R. 3 Q. B. Div. 495; Miller v. Stewart, 22 U. S. 680; Cross v. Allen, 141 U. S. 528 (12 Sup. Ct. Rep. 67); New Haven v. National Steam Economizer Co., 79 Conn. 482 (65 Atl. Repr. 959).

      Leo Belmont, for appellant, Norman Kellogg.
   Opinion by

Me. Justice Stewart,

We have here two appeals to consider. A recital of the facts is necessary to an understanding of the questions involved. The action was against principal and surety in a bond of §25,000 conditioned on the completion of certain buildings and improvements within a stipulated time. The plaintiffs being the owners of certain real estate at Atlantic City contracted by written article of agreement dated February 26, 1906, to sell and convey the same to Norman Kellogg, one of the appellants. The agreement provided that the consideration should be a purchase money mortgage for $500,000, to secure an issue of first mortgage gold bonds of like amount bearing interest at the rate of six per cent, payable semiannually, with a sinking fund provision of $10,000 yearly, the whole issue of bonds to be redeemable at any understood period after three years, and to become due and payable at the expiration of ten years, the mortgage to be held by the Land Title & Trust Company of Philadelphia as trustee for the bondholders. It was further stipulated that of the bonds $400,000 were to be forthwith issued to the vendors, and the remaining $100,000 were to be held by the trustee, to be paid over upon the order of Kellogg upon the completion by him or his assigns of certain buildings and improvements which he had covenanted to make on the purchased premises, as part of the consideration, at an actual cost of not less than $350,000. Another provision in the contract was that in case the vendees should organize a corporation for the purpose of improving the property and conveyed the title to such corporation, the corporation should at the request of the grantor execute its bonds to the amount of $500,000 to be secured by the purchase money mortgage above provided for, thereby making them a first lien. Still another was that inasmuch as no cash consideration was being paid on the purchase, in order to indemnify the vendors against loss of rentals in case of failure of the vendee to make the improvements stipulated for within the required time, the latter should furnish a bond with security in the sum of $75,000 (after-wards reduced to $25,000) to protect against such contingency. The contract was to take effect and become binding on the parties only upon the execution and delivery of this bond. In compliance with this stipulation the bond here sued on was furnished and accepted March 9, 1906. It recites the fact of agreement of sale and purchase, the consideration, and the reason and purpose in requiring the bond, followed by this condition: "Now therefore the condition of this obligation is such that if the said principals shall well and faithfully construct and complete said improvements of the value of Three Hundred and Fifty Thousand Dollars ($350,000) upon said property, as provided in said agreement, on or before the 31st day of December, 1906, then this obligation to be null and void; otherwise it shall remain in full force and effect.” The obligors were Kellogg and two others who signed as principals, and the American Bonding Company as surety. Kellogg and the bonding company were the only parties served, and the case proceeded against them. The facts as developed on the trial showed entire failure on the part of Kellogg to make the improvements stipulated for, although a corporation organized by him to accomplish this undertaking had expended in the attempt before its abandonment upwards of $60,000. A verdict was rendered for the plaintiffs, which upon a point reserved, affecting only the bonding company, was set aside as to the bonding company by the court, and judgment entered for the latter non obstante. This appeal is from the judgment so entered. Upon the admitted facts the learned trial judge held, that in the course of settlement between the plaintiffs and Kellogg, there had been such a departure from the terms of the original contract as relieved the surety. The variance was in connection with the purchase money mortgage. Upon the acceptance by plaintiffs of the bond in suit, March 13, 1906, the transaction between plaintiffs and Kellogg was completed, the former executing and delivering their deed of conveyance, and the latter a purchase money mortgage. This mortgage contained none of the special provisions set out in the contract. By its terms it was given to secure, not an issue of $500,000 of first mortgage bonds, with the incidents which according to the provisions of the contract were to attach to such bonds, but to secure one certain bond given by Kellogg in the sum of $500,000 payable to the plaintiffs’ representative or his assigns on or before March 1, 1916, with interest payable semiannually. In neither bond nor mortgage is there any reference to the special provisions which were to govern, nor does either contain any reference to the rights of Kellogg. The learned trial judge held that this constituted a variance in substantial and material respects from what was required by the agreement, and operated to release the surety in the bond. The appeal raises several questions which we shall consider in the order they have been presented. First, it is contended that the bond in suit was not given for the faithful performance of the contract of February 26, 1906, but only for the completion of certain improvements at a certain cost within a certain time; and that therefore nothing in the contract is to be considered as affecting the obligors’ liability. Emphasis is put on the fact that the contract does not accompany the bond, and that it is not by express terms made part of the bond. A sufficient answer to this would be that the bond by its terms recites the fact of the contract, and so much of the contract is introduced as is necessary to give a full understanding of what the respective parties had engaged to do thereunder. It expressly recites, among other things, that the consideration for the conveyance to Kellogg was “a portion of an issue of bonds as set forth in said agreement, to be secured by a mortgage upon said premises, together with certain improvements to b'e erected thereon by the said Norman Kellogg or his assigns, which said improvements are to be fully completed on or before December 31, 1906.” Were it simply a question as to the extent of the obligation under the bond, the latter would have to be its own interpreter; the obligation could not be enlarged or modified by the contract except as introduced into the terms of the bond and made part of it. But that is not the question here.' The reference to the contract is not to- determine or qualify the extent of the obligation, but to show the conditions under which the obligation was assumed as affecting the obligee’s right to recover thereon. Given the right to recover, the extent of the recovery is not a question. So much of the contract as is recited in the bond shows what Kellogg had engaged to do, and for the performance of which the bonding company had become surety. What it does not show, unless inferentially, is that such of the bonds as were outside the portion of the issue to be allotted to plaintiffs, were to be issued on the order of Kellogg on completion of the work, and, except in the most general way, the nature of the security, upon which these bonds were to rest. It recites quite enough, however, to show that the engagement under the bond had direct reference to the contract of February 26, 1906, and was entered into on the common understanding that the mutual obligations of the parties thereunder would be faithfully observed. The authority cited by the learned counsel for appellants in support of their contention in this regard, New Haven v. National Steam Economizer Co., 79 Conn. 482, cannot serve them. That case was similar in many of its facts to this. There two contracts were under consideration, a construction contract, and a contract of suretyship by a surety company. In disposing of the case the court uses this language: “But while the concern of the surety in the principal contract is thus a vital one, it is only in its relation to the surety’s liability under another contract, its contract of suretyship, that it exists at all. Beyond the point where this liability is touched, the surety company, being a stranger to the construction contract, has no interest in it. For these reasons it follows that the defendant surety company cannot found a defense upon any conduct of the parties to the principal contract which is either conformable to its provisions, or, being a departure from its letter, was not a material one.” There can be no disagreement with respect to the law as here stated. The interest of the bonding company in the earlier contract, to which it was not a party, could arise only at the point where its liability was touched; and we agree further, that where its liability was touched, it must be in connection with something material before the conflict can be made available as a defense.

This brings us to the second contention of appellants, viz., that the settlement of March 13 involved no material departure from the contract of February 26, 1906. In all essential particulars the appellee here is an insurance; company, and its obligation in this particular instance was that of an insurer. It was paid for'its undertaking; the amount of its compensation being based on the calculation of risk assumed. The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate suretyship where the latter is an undertaking for money consideration by a company chartered for the conduct of such business. In the one case the rule of strictissimi juris prevails, as it always has; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such a company can be relieved from its obligation for suretyship only where a departure from the contract is shown to be a material variance. “The doctrine that a surety is a favorite of the law, and that a claim against him is strictissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves 'surety companies’ their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee:” 32 Cyc., p. 306, and the authorities there cited in support. Having regard to this particular contract before us, and interpreting it according to its own terms, we have said that it is essentially a contract of insurance. It follows that there is but one way by which it is to be determined whether the variance complained of was a material variance. The test is to be found in the answer to the question, whether it substantially increased the chances of the loss insured against. If such were the result, it would have been fair reason for demanding a higher premium than was paid, and the materiality is thus made apparent: Hartman v. Ins. Co., 21 Pa. 466; Murphy v. Ins. Co., 205 Pa. 444. It is not a question whether the variance actually caused the breach of the bond; but whether it was such a variance as a reasonably careful and prudent person undertaking the risk would have regarded as substantially increasing the chances of loss. To this, as it seems to us, there can be but one answer. Under the contract $100,000 of bonds of a certain description were to be available to Kellogg on completion of the improvements. These bonds were to be secured by a mortgage on the property containing certain definite provisions as to their redemption; when issued they were to be on a parity with the bonds which the vendors were to receive, and were to rest on the same security. If the property conveyed had a value of $400,000 — the amount the vendors were to receive — it is safe to assume that any considerable expenditure in improvements thereon as the work progressed would give to the bonds held in reserve for Kellogg, and which were to be issued only on completion of these improvements, a corresponding value as an asset which could, by way of anticipation, be made available in aiding him in the completion of the work by assignment or otherwise. Would such fact be likely to occur to anyone in calculating the risk assumed in underwriting Kellogg’s performance? If so, here was a material departure from the contract. The settlement as made contained no provision for Kellogg’s bonds; indeed, it precluded the possibility of their issue at least on the basis originally provided. It gave the vendors one bond for $500,000, $100,000 in excess of the price stipulated for; it showed no interest in Kellogg in the security; but on the other hand increased his liability. To that extent it increased the hazard of his accomplishing what he had undertaken to do, and correspondingly increased the risk the appellee had underwritten. It is not an answer to this to say that it was but a temporary arrangement; that what was contemplated was that the improvements were to be made by a corporation to be organized for that purpose, and that the bonds were to be issued by such corporation. True, the contract contemplated the contingency of Kellogg organizing a corporation to take over the property and make the required improvements; but the corporation was to acquire the property through a conveyance from Kellogg, and the bonds to bé issued by it were to conform to the bonds previously provided for, that is to say, “to be a first lien upon all its property and assets, being further secured by the purchase money mortgage already provided for.” The essential fact is that the mortgage given by Kellogg was not the mortgage “already provided for,” and could not be made to secure bonds with the incidents that were to attach under the original contract. That the settlement was a contemplated temporary expedient is nothing more than a suggestion; but if it were a fact established in the case, it rendered impracticable the original scheme. The third position advanced by appellants is, that whatever departure there was from the contract was with the knowledge and approval of the surety. It is not pretended that the surety was consulted as to the mortgage which was accepted, or had any knowledge as to its contents. It was acquainted with the fact that Kellogg had organized a corporation to make the improvements, but its knowledge extended no further. It had a right to assume that notwithstanding this arrangement the terms of the original contract would be observed, for it was so stipulated. The case was properly ruled by the learned trial judge. .The assignments of error in this appeal are overruled.

Next is the appeal of Norman J. Kellogg, principal in the bond. The motion for judgment non obstante in his case was refused. The defense set up in his behalf was that after the corporation which had been organized for making the improvements on the property conveyed— The Nixon Realty & Amusement Company — had ceased operations, negotiations were begun in which Young, one of the plaintiffs, participated, to secure the withdrawal of Kellogg in order that a different arrangement might be made for the completion of the improvements on a reduced plan to cost about $200,000, through the joint cooperation of Young and the Nixon company. Just how far these negotiations had progressed was the question in the case. Kellogg’s contention was that it was a completed agreement through Allen, the architect, representing Young; that relying upon this completed agreement he ceased all effort to complete the improvements according to the original scheme and retired from the enterprise; that he was never again asked to proceed with the work, and that Young failed wholly to carry out his contract in this regard. Upon this aspect of the evidence an estoppel was claimed. Were these the admitted or established facts in the case there could be no question as to the sufficiency of the defense; but, unfortunately for appellant, they were neither admitted by the plaintiff nor accepted by the jury. Young, while admitting that negotiations were entered upon looking to the elimination of Kellogg, emphatically denied that he authorized Allen to conclude a deal with Kellogg, or that Allen ever exhibited to him a letter from Kellogg in which the former stated his acceptance of terms proposed for his withdrawal. The learned trial judge was evidently impressed with the strength of the evidence supporting Kellogg’s contention, but because of the conflict felt compelled to submit the question of fact to the jury. It would have been error to have done otherwise. It is unnecessary to discuss the assignments which relate to the admission of evidence offered by the plaintiff. In view of the issue on which the case turned, this evidence could not have prejudiced the appellant; but aside from this, we discover no error in admitting it.

The assignments of error in this appeal are overruled. The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Reimard v. Bloomsburg & Sullivan Railroad Company, Appellant.

      Negligence — Railroads—Passenger—Remote and proximate came.

    1. Where a railroad company negligently carries a woman passenger beyond the station where she is entitled to alight, and compels her to get off the train at the next station, in a dark night and in a drizzling rain, with two children and a large basket, and because of the mud she cannot reach the highway leading back to her destination, and walks along the tracks which she was told by a bystander was the best way to go, and while thus walking falls and is injured, the company will be liable to her in damages for the injuries sustained.
    2. In such a case the railroad company ought to have reasonably anticipated that plaintiff would do just what she did. Its own neglect, therefore, was the proximate cause of the injury.
    Argued April 12, 1910.
    Appeal, No. 394, Jan. T., 1909, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1908, No. 372, on verdict for plaintiffs in case of Howard R. Reimard and Cora A. Reimard v. Blooms-burg & Sullivan Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Evans, P. J.
    Plaintiff had her knee injured by tripping and falling while walking on a railroad track. The circumstances preceding the accident appear in the opinion of the Supreme Court.
    Verdict and judgment for Cora A. Reimard for $2,000 and for Howard R. Reimard for $500. Defendant appealed.

      Errors assigned among others were refusal of binding instructions for defendant, the refusal to charge that the act of the railroad company was not the proximate cause of the accident, and that the charge was inadequate on the subject of the plaintiff’s poor physical condition or state of health prior to the accident.

      May 24, 1910:

      John G. Harman, with him L. E. Waller, for appellant.
    Plainly, as the case thus stood, there was no question for the jury to determine, and it became the duty of the court to apply the law to this undisputed testimony: Butler v. R. R. Co., 126 Pa. 160; Loughrey v. R. R. Co., 201 Pa. 297; Ry. Co. v. Collins, 87 Pa. 405; R. R. Co. v. Oberhoefer, 76 Ill. App. 672; Lewis v. Ry. Co., 54 Mich. 55; South Side Pass. Ry. Co. v. Trich, 117 Pa. 390; West Mahanoy Township v. Watson, 112 Pa. 574.

      A. W. Duy and Fred Heeler, for appellees.
    The plaintiff was not guilty of contributory negligence in using the tracks of the defendant to return to Sugarloaf Station: R. R. Co. v. Werner, 89 Pa. 59; Ham v. Canal Co., 155 Pa. 548; Malone v. R. R. Co., 152 Pa. 390; Tilburg v. R. R. Co., 217 Pa. 618.
    The negligence of the defendant was the proximate cause of the injury: Tilburg v. R. R. Co., 217 Pa. 618; Malone v. R. R. Co., 152 Pa. 390.
    Where the trial judge fails to charge upon some point which counsel regard as essential, the judge’s attention should be called to it before the jury leave the bar, in order that he may correct any omission: O’Toole v. Publishing Co., 179 Pa. 271; Humes v. Gephart, 175 Pa. 417.
   Opinion by

Mr. Justice Brown,

The main contention of the appellant is that the negligence of the passenger after leaving its train is a bar to recovery for the injuries she sustained. A mere recital of the facts testified to by her and other witnesses will be a sufficient vindication of the correctness of the judgment of the court below that it was for the jury to determine whether her own negligence had been a contributing cause of her injuries.

Cora A. Reimard and her two children, aged six and eight years respectively, boarded a train of the defendant between six and seven o’clock on the evening of November 23, 1907, at Main street, in the town of Bloomsburg. That street, at its intersection with the railroad, was a stopping place for trains, but the company did not have a ticket office at that point, and a brakeman, acting as conductor, called upon Mrs. Reimard for the fares shortly after the train started. She told him she wished to go to Sugarloaf Crossing, which had formerly been a regular station on the railroad, but about four years before had been discontinued as a regular stopping place for trains, and, under a certain rule or custom, the company would allow a passenger to alight there only upon the payment of a fare and a half to Laubach’s Station, about a mile further north. Upon notifying the acting conductor that she wished to get off at Sugarloaf Crossing, he replied, “All right,” and took out of the dollar bill that she gave him two fares to Laubach’s Station — one for her at full rate and the other for the older child at half. He handed her the change and gave her two receipt slips. As the train approached Sugarloaf Crossing, Mrs. Reimard, not hearing the usual signal to stop, and fearing that it would not stop, asked a passenger to notify the conductor not to carry her beyond that station. The passenger did so, but the reply of the conductor was that it was too late, and the train did not stop until it reached Laubach’s Station. When it arrived there a man in working clothes, evidently an employee of the defendant company, called out “Laubach’s Station,” and pushed the two children from the train down on to a switch or siding next to the track. Mrs. Reimard protested against getting off and said she would not do so until she could see Mr. Scott, the conductor. He appeared and the following took place between them, according to her testimony: “I would not get off and a man called to Mr. Scott, and Mr. Scott came out. Q. And who was Mr. Scott? A. The conductor. Q. Of the train? A. Yes, sir. Q. What did you say to Mr. Scott? A. I said, 'Oh, you should have left me off at Sugarloaf.’ He said, ' I can’t help it, you will have to get off here.’ Q. What did you say to him? A. 'Oh, how in the world will I ever get back from here?’ Q. What did you say to him as protesting about getting off? A. 'I don’t want to get off here, I don’t want to get off here.’ He said, ‘I can’t help it, you will have to get off here.’ Q. Where were the children during this talk with Mr. Scott? A. Down on the outside of the train. Q. And what did you do then when Mr. Scott told you, you would have to get off? A. I started to get off.” The night was dark and there was a drizzling rain. The station building at Laubach’s was a small frame structure fronting on the track, without light or heat, and was used at times by tramps as a lodging place. The highway, which the defendant company insists-Mrs. Reimard ought to have followed in trying to make her way back to her father’s home, was about 130 feet from the station, and on the night of the accident the only way to reach it was through an opening between the north side of the station and a pile of railroad ties and lumber which extended along the railroad track 200 or 300 feet to a height of eight or ten feet. On the south side of the station there was no opening, for another pile of lumber extended from it, ten or twelve feet in height, for a distance of over 200 feet. The opening on the north side of the station leading to the highway led to it through water and mud ankle deep. Though Mrs. Reimard admitted that she had often visited in that neighborhood and was familiar in a general way with the highway leading past Laubach’s Station to Sugarloaf Crossing, she had been at the former station only three or four times in her life. She had not been there for three or four years prior to the accident, and never in the nighttime. In the situation in which she found herself, placed there by the defendant company — in the dark night and drizzling rain, carrying on her arm a large, well-filled basket, with one of her children suffering from sore eyes and both crying — not knowing what to do nor where to turn, she cried out, “What will we do; oh, how in the world will I get out of here?” In answer to this a bystander asked her where she wished to go, and, having told him, she was directed to go down the railroad, as it was her best way out, because, if she started towards the highway, she and her children would get into mud aver the tops of their shoes.

Under the foregoing state of facts, fully supported by the testimony, it would have been a strange jury that would have failed to find the defendant guilty of negligence, and the natural finding was that the woman, placed in a position of difficulty and great embarrassment by the act of the defendant, was not guilty of contributory negligence, for the rule is that, , having been placed in such a situation by the act of the defendant, she was not bound to use the very best judgment and was in no fault if she acted in good faith and with reasonable prudence: Pennsylvania Railroad Company v. Werner, 89 Pa. 59; Malone v. Pittsburg & Lake Erie Railroad Company, 152 Pa. 390; Ham v. Delaware & Hudson Canal Company, 155 Pa. 548.

A second Contention of the appellant is that, under the .undisputed facts in the case, the court should have charged the jury that the negligence 'of the defendant, of which the plaintiffs complain,- was not the proximate cause of the injuries sustained. The undoubted rule as to proximate cause is that the injury must be the natural and probable consequence of the negligence charged — such a consequence as, under the surrounding circumstances , of the case, might and ought to have been foreseen by the wrongdoer as likely to follow from his act: Township of West Mahanoy v. Watson, 112 Pa. 574. The. circumstances surrounding Mrs. Reimard when she was practically put off the train are presumed by the law to have been known to the defendant company, and, if so, it cannot be heard to say, as a matter of law, that it ought not to have reasonably anticipated that she would do just what she did. On the contrary, every juror in the case might have found and did find that whát she did was what he would have done under the circumstances, .and, therefore, the consequences to her in doing what she did as the result of the defendant’s negligence are chargeable to it as the direct cause of them.

The thirteenth, and last, assignment complains of the failure of the court to adequately comment upon the evidence of the plaintiff’s poor physical condition or state of health prior to the alleged injury, especially that relating to the knee alleged to have been injured by the defendant’s negligence. The court did direct the attention of the jury to the contention of the appellant that the alleged permanent injury to Mrs. Reimard’s left knee or leg was due to the open, running sore existing prior to the time of the alleged injury, and, if the defendant thought that more specific instructions ought to have been given as to this, it was its duty to ask for them. No one of the assignments of error can be sustained and the judgment is affirmed.


text:
    Rosengarten v. Ashton, Appellant.

      Wills — Construction—Vested and contingent estates — Grandchildren.
    1. Where a testator creates a trust for the benefit of his children for life, and directs his trustees, upon the death of the last child “to pay over and distribute,” the estate to all his grandchildren and the issue of such as may be dead “such issue to take the share the parent would have taken if living ” at the time of distribution, the interest of a grandchild who dies before the time for distribution, is contingent and not vested. .
    2. Where a direction in a will to pay or divide constitutes the bequest, the vesting of the interest itself is postponed, and not merely the possession or enjoyment of it. .
    Argued April 21, 1910.
    Appeal, No. 56, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1908, No. 1,308, on case stated in suit of Joseph G. Rosengarten and Harry B. Rosengarten, Executors and Trustees under the Will of George D. Rosengarten, deceased, v. William E. Ashton.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      Case stated in ejectment. Before Staake, J.
    The case stated was as follows':
    George D. Rosengarten died at Philadelphia on March 18, 1890, having first made and published his last will and testament, dated February 1, 1886, which was duly proved at Philadelphia, and letters testamentary thereon were granted to the said Joseph G. Rosengarten and Harry B. Rosengarten.
    By the twelfth and thirteenth paragraphs thereof it was provided as follows:
    “Twelfth. — All the rest residue and remainder of my estate I direct my executors at the end of one year from my death or as soon thereafter as may be within their power so to do to divide into two equal shares, and one of said shares I give, devise and bequeath equally and absolutely to and among all my children living at the time of my death and the issue of such as may be dead, such issue to take the share the parent would have taken if living at the time of my death.
    “Thirteenth. — The other share of my said estate I give, devise and bequeath to my executors and trustees and their survivor and successors in trust nevertheless:
    “(First). — To pay all legacies, annuities and charges hereinbefore provided and all taxes, costs and expenses thereon and of said trust estate.
    “(Second). — To pay over the net income of said trust estate for and during the lives of my children equally to and among all of my children and the issue of such as may be dead, such issue to take the share of said income of said trust estate the parent would have taken if living, and in case of the death of any of my said sons leaving widows and issue of such widows during widowhood and such issue shall take equally the share of such income such son would have taken if living and in case of the death of any of my sons leaving a widow and no issue then I authorize and direct my executors and trustees to pay to such widow during widowhood such sums as my said executors and trustees shall think proper and

      “ (Third). — On the death of the last of my children then to pay over and distribute said trust estate equally to and among all my grandchildren and the issue of such as may be dead, such issue to take the share the parent would have taken if living at the time of the death of my last surviving child.”
    By the seventeenth paragraph thereof it was provided as follows:—
    “Seventeenth. — I authorize, empower and direct my executors and trustees on the marriage of any of my grandchildren to invest such sum of money out of his or her share of my estate as may be by my said executors and trustees deemed proper for the purchase of a suitable dwelling house and furniture therefor and such investments of real and personal estate shall be taken and held upon the same trusts as, and as part of his or her share of my said estate provided that no real estate so purchased shall be sold or otherwise disposed of during the life of the person for whom it was bought without his or her consent in writing and in case of such sale the proceeds thereof shall remain part of my said trust estate.”
    The said George D. Rosengarten left him surviving seven children, to wit: Mitchell G. Rosengarten, who died at Philadelphia on May 19, 1898, leaving a widow, Emily Rosengarten, now deceased, and five children, to wit: Alice E. Ashton, Katharine E. Tyson, Mitchell G. Rosengarten, Jr., Albert H. Rosengarten and Harold Rosengarten, and no issue of any deceased child.
    Samuel G. Rosengarten, who died May 15, 1908, unmarried and without issue.
    Fanny Rosengarten, unmarried, who is still living.
    Joseph G. Rosengarten, unmarried, who is still living.
    Harry B. Rosengarten, who is still living, is married, and has six children, to wit: George D. Rosengarten, Adolph G. Rosengarten, Clara R. Neilson, Joseph G. Rosengarten, Jr., Frederick Rosengarten, and Armenia C. MacLeod, and no issue of any deceased child.
    Frank H. Rosengarten, who is still living, and has two children, to wit: J. Clifford Rosengarten and Samuel R. Rosengarten, and no issue of any deceased child.
    Emma R. Sinnickson, who is still living, and has five children, to wit: Caroline Shore, Elizabeth R. Sinnickson, Charles Sinnickson, George R. Sinnickson and Fanny R. Sinnickson, and no issue of any deceased child.
    All of the above-mentioned grandchildren of the said George D. Rosengarten are now living, excepting Alice E. Ashton, wife of William E. Ashton, the defendant herein, who died at Philadelphia on April 5, 1908.
    By deed dated May 11, 1892, and recorded at Philadelphia on May 12, 1892, George Herbert Walsh and Harriet Hockley Walsh granted and conveyed unto Joseph G. Rosengarten and Harry B. Rosengarten, executors of and trustees under the last will of George D. Rosengarten, deceased, trustees for Alice E. Ashton, wife of William E. Ashton, a granddaughter of the said George D. Rosengarten, all that certain lot or piece of ground with the four-story brick messuage or tenement thereon erected, situate on the north side of Walnut street at the distance of eighty-four feet four inches westward from the west side of Twentieth street, in the eighth ward of the said city of Philadelphia, containing in front or breadth on the said Walnut street eighteen feet two inches, and extending in length or depth northward between lines at right angles therewith 120 feet to Porcelain street.
    The said Alice F. Ashton and her husband, William E. Ashton, the defendant herein, occupied the said premises as their residence until the death of the said Alice E. Ashton. Since the death of the said Alice E. Ashton the said William E. Ashton, the defendant herein, has continued in the possession of the said premises.
    As. above set forth, the said Alice E. Ashton, wife of William E. Ashton, the defendant herein, died at Philadelphia April 5, 1908, without issue, having first made and published her last will and testament, dated July 5, 1899, which was duly proved at Philadelphia, and letters testamentary thereon granted to the said William E. Ashton, who took all his wife’s estate under her will.
    May 24, 1910:

      Error assigned was in entering judgment for plaintiffs on case stated.

      Abraham M. Beitler, with him Henry S. Drinker, Jr., and II. Gordon McCouch, for appellant.
    The death of a grandchild before that of the last surviving child did not operate to destroy the grandchild’s interest in this estate: Chew’s App., 37 Pa. 23; Carstensen’s Est., 196 Pa. 325; Manderson v. Lukens, 23 Pa. 31; Adams’s Est., 208 Pa. 500; Safe Dep. & Trust Co. v. Wood, 201 Pa. 420.

      John G. Johnson, with him Frederick C. Newbourg, Jr., for appellee.
    Where there is no gift but a direction to pay or divide among several persons at a future period, though the future period is annexed to the payment, possession or enjoyment, yet it is also annexed to the devise or bequest itself. The direction to pay constitutes the devise or bequest, and, therefore, the vesting in interest is postponed, and not merely vesting in possession or enjoyment: Reiff’s Est., 124 Pa. 145; Kountz’s Est., 213 Pa. 390; Mergenthaler’s App., 15 W. N. C. 441; Adams’s Est., 208 Pa. 500; Delbert’s App., 83 Pa. 462; Raleigh’s Est., 206 Pa. 451; Mulliken v. Earnshaw, 209 Pa. 226.
   Opinion by

Mr. Justice Brown,

The testator made no direct or express gift to his grandchildren. He directed that upon the death of the last of his children the trustees who shall have held a moiety of his residuary estate up to that time, for the purposes stated in the second section of the thirteenth clause of his will, shall make distribution of it “equally to and among all my grandchildren and the issue of such as may be dead, such issue to take the share the parent would have taken if living at the time of the death of my last surviving child.” ■ Whatever interest a grandchild takes 'in the corpus of the grandfather’s estate passes under this clause, which simply directs distribution. No gift of an interest in the estate to a grandchild is to be found in any other clause of the will, and the gift is implied only from the direction to divide. This must be conceded, and the well-known rule in such a case is that, as the direction to pay or divide constitutes the bequest, the vesting of the interest itself is postponed, and not merely the possession or enjoyment of it. “Where there is no gift but in a direction to pay or transfer or divide among several persons, at a future period, though the future period is annexed to the payment, possession or enjoyment, yet it is also annexed to the devise or bequest itself. For, in this case, the direction to pay or transfer or divide, constitutes the devise or bequest itself; and, therefore, the vesting in interest is postponed, and not merely the vesting in possession or enjoyment:” Smith on Executory Interests, sec. 314. “The ruling principle of a case like this is, that where there is no separate and antecedent gift which is independent of the direction and time for payment, the legacy is contingent; and it'seems to be as well founded in reason, as rules of interpretation usually are. Where a gift is only implied from a direction to pay, it is necessarily inseparable from the direction, and must partake of its quality, insomuch that if the one is future and contingent, so must the other be:” Gibson, C. J., in Moore v. Smith, 9 Watts, 403. “The rule is conceded that where there is bequest in the form of a direction to pay, or pay and divide ‘from and after’ the happening of any event, ‘then the gift being to persons answering a particular description, if a party cannot bring himself within it he is not entitled to take the benefit of the gift:’ ” Man’s Est., 160 Pa. 609. Many more of our own cases might be cited which announce the same-rule. Reference is made to a number of them in Reiff’s Appeal, 124 Pa. 145. But no rule as to vested and contingent remainders is specially called for in construing the will before us, for, as the intention of the testator most clearly appears, it must be given effect without regard to any rule: Mulliken v. Earnshaw, 209 Pa. 226.

The testator directs what is to be done with what remains of his estate upon the death of his last child. He directs who shall take directly from him, and, while he does not expressly say that they are to be grandchildren then living and the issue of those dead, no other intention is to be gathered from his words, unless we deny them their ordinary meaning, in which sense the law presumes the testator used them. No share is given to the estate of a deceased grandchild. The condition of participation in the distribution is life at the time it is to be made. Living grandchildren and living issue of deceased grandchildren are to be the distributees. They constitute the exclusive class to which the testator declares his estate shall go. The issue of a deceased grandchild shall take “the share the parent would have taken if living” at the time of distribution. Could words more clearly indicate the intention of the testator that a grandchild shall take only if living at the time of the death of his last child? And if a living grandchild will take only at that time, by the express words of the testator, it cannot take before. It surely would be a work of supererogation to dwell longer on the expressed intention of the testator. That intention excludes the appellant from all interest in his estate, for Alice E. Ashton, the grandchild under whom he claims, died during the lifetime of five of her grandfather’s children. It- is unnecessary to refer to other clauses of the will to which counsel for appellees point as indicating the intention of the testator that no one not of his blood shall take any interest in his estate. The third section of the thirteenth clause needs no support as an expression of the testamentary intention that the interest of a grandchild is to be contingent.

There is nothing in the seventeenth clause of the will conflicting with the intention of the testator as expressed in the thirteenth. The executors and trustees are not to purchase a dwelling house and furnish it for a grandchild to become his or her property, but they are to invest out of such grandchild’s contingent share such sum as they may deem proper for a “suitable dwelling house and furniture therefor; ” but such sum, so invested, is to continue a part of the trust estate and is to be distributed as such under the third section of the thirteenth clause of the will.

Carstensen’s Est., 196 Pa. 325, and Safe Deposit & Trust Company v. Wood, 201 Pa. 420, are the two cases upon which the learned counsel for appellant seem to place main reliance, but each is clearly distinguishable from the one before us. In the first, as pointed out by our Brother Mestrezat, the brothers and sisters of the testatrix were in esse at the date of her death, and the time when they were to come into possession of their legacies was fixed by the will, to wit: at the death of Edward Carstensen, the life tenant; the bequest was not qualified, but absolute and immediate; there was no condition precedent attached to the gift which the legatees were required to fulfill prior to receiving the bequest; the time fixed by the testatrix for the enjoyment of the ulterior interests in her estate was not annexed to the legacies themselves and was in no sense a part of the description of the objects of her bounty; and it was evident that the only object of the testatrix in the postponement of the distribution of the estate among her brothers and sisters was a desire that she had to give her husband a life interest in it. In the other, we said the testatrix “directed that, as soon as practicable after her decease, an inventory and just valuation and appraisement should be made of all her property, real and personal; that her executor should immediately proceed to divide the real estate into six equal shares or purparts, according to the valuation made by them, and that ‘such valuation and appraisement and distribution of my property and estate shall be in writing, and signed and acknowledged by the appraisers hereby appointed for that purpose, and shall be recorded at length on the records of the orphans’ court of Allegheny county, and shall expressly designate by name the several parties entitled under the provisions of this my will as devisees or cestui que trusts to each particular share or purpart of my said estate according to the disposition thereof hereinafter made.’ The testatrix wanted it to be known, as soon as practicable after her death, from the records of the court, not only who would take under her will, but what each would take. They were to be designated by name as the parties entitled then, when the record was made, to what she had left them. The present right to the corpus, to be enjoyed in the future, was to be set forth, and those who were to enjoy it were to be specifically named. The expressed intention seems to be that the estates given should vest, not years after her death, but as soon as she died. They were not only to vest, but it was to be definitely ascertained and known who took and just what each was to get.”

The assignments are overruled and the judgment is affirmed.


author: Per Curiam,

text:
    Hewitt v. Pennsylvania Railroad Company, Appellant.

      Negligence — Damages—Husband and wife--Services of wife.

    Recovery by a husband for the loss of the services of his wife includes not only services in the ordinary sense of the word but the assistance and comfort which under the circumstances he would receive from her; and the recovery for his loss is not limited to the period before suit was commenced.
    Argued April 25, 1910.
    Appeal, No. 230, Jan. T., 1909, by defendant, from judgment of C. P. Erie Co., Nov. T., 1907, No. 78, on verdict for plaintiff in case of Edwin L. Hewitt and Yilettie A. Hewitt, his wife, each suing in his or her own right, v. Pennsylvania Railroad Company.

      May 24, 1910:
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for Edwin L. Hewitt for $2,924 and for Vilettie A. Hewitt for $5,000. Defendant appealed.

      Errors assigned were various instructions as to damages.

      J. Boss Thompson and U. P. Bossiter, of Thompson, Bossiter & Thompson, for appellant.

      I. B. Brown, with him O. T. Kincaid, for appellee.
   Per Curiam,

This was an action by a husband and wife to recover damages sustained by reason of the injury of the latter, while a passenger in the defendant’s car. There was no denial of liability, and the only subject of dispute was the amount of damages which each of the plaintiffs had sustained. The measure of damages was somewhat complicated by proof of the ill health of the wife before the accident, which created a doubt as to the extent to which her physical condition at the trial was due to the injuries sustained while in the car. But this question and all others that arose were submitted to the jury in a charge of exceptional clearness and precision, in which the recovery by either of the plaintiffs was limited to damages shown by the weight of the testimony to have resulted from the accident. Recovery by a husband for the loss of the services of his wife, includes not only services in the ordinary sense of the word but the assistance and comfort which under the circumstances he would receive from her: Kelley v. Mayberry Twp., 154 Pa. 440, and the recovery for his loss is not limited to the period before suit was commenced: Readdy v. Shamokin Borough, 137 Pa. 98.

The judgment is affirmed.


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    Moore v. B. F. Sturtevant Company, Appellant.

      Negligence — Independent contractor —■ Evidence — Contract—Question for fury.

    A contractor to place machinery and erect a smokestack sublet the building of the smokestack to another person. The contract between them was partly in writing and partly oral, and there was a dispute in relation to the oral part of it. A man in the employ of the owner of the property was injured by the fall of material in the building of the stack. In a suit brought by the injured man against the contractor there was evidence tending to show that while the subcontractor furnished men and machinery, the whole control and management of the work was under the charge of the contractor. Held, that the case was the jury, and that a verdict and judgment for the plaintiff should be sustained.
    Argued April 25, 1910.
    May 24, 1910:
    Appeal, No. 293, Jan. T., 1909, by defendant, from judgment of C. P. Erie Co., Sept. T., 1908, No. 150, on verdict for plaintiff in case of Harry Moore v. B. F. Sturtevant Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Walling, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Errors assigned were various instructions.

      Louis Rosenzweig, for appellant.

      Charles P. Hewes, for appellee.
   Per Curiam,

The plaintiff was employed by a paper company in whose plant the defendant had contracted to place macbinery and to erect a smokestack. He was injured by the falling, because of a defective rope, of a large piece of sheet steel used in building the stack. The main ground of the defense was that the work of building the stack had been sublet by the defendant and was done by an independent contractor. The contract with the subcontractor was partly in writing and partly oral and there was a dispute in relation to the oral part of it. The testimony produced by the plaintiff tended to show that while the subcontractor furnished men and machinery, the whole control and management of the work was under the charge of the defendant. This was the pivotal point of the case and the question was necessarily for the jury. The court could not construe the contract as a whole, without deciding the disputed controversy of fact. We find no error in the record.

The judgment is affirmed.


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    Commonwealth v. Ensign, Appellant.

      Criminal law — Evidence—Banks and banking — Schedule and books of bankrupt.

    1. Upon the trial of an indictment drawn under the Act of May 9, 1889, P. L. 145, charging the receiving of deposits by an insolvent banker, with knowledge that he is at the time insolvent, schedules filed by the defendant in involuntary bankruptcy, and testimony of an expert accountant based upon an examination of his banking books that he had turned over to the trustee in bankruptcy, are admissible against him.
    2. The provision of sec. 860 of the revised statutes of the United States, providing that no pleading or evidence in a judicial proceeding shall be used against a party “in any court of the United States in any criminal proceeding,” applies only to criminal proceedings in federal courts.
    3. The proviso in clause 9 of sec. 7 of the federal bankruptcy act of 1898, to the effect that no testimony given by a party in bankruptcy proceedings shall be offered in evidence against him in any criminal proceeding, applies only to testimony given by the bankrupt upon his examination, and not to the schedules referred to in the earlier parts of the section.
    4. In the absence of statutory regulation of the subject, testimony and written statements voluntarily given or made by a party or witness in a judicial proceeding are as admissions and confessions competent against him on the trial of any issue in a criminal case to which they are pertinent; and schedules and books offered by a bankrupt under the provisions of the federal act are to be considered as voluntarily offered.
    5. An order of reference under the seal of the United States district court and forwarded by the clerk to the referee in bankruptcy is admissible in a criminal proceeding in a state court, if there is no other objection to it except that it was a “piece of testimony growing out of the bankruptcy proceedings.”
    Argued April 25, 1910.
    Appeals, Nos. 318 and 319, Jan. T., 1909, by defendants, from judgment of the Superior Court, April T., 1909, Nos. 162 and 163, affirming judgment of Q. S. Erie Co., Sept. T., 1908, No. 39, on verdict of guilty in case of Commonwealth v. William A. Ensign and Charles A. Ensign.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from judgment of the Superior Court.
    Hice, P. J., filed the following opinion:
    The principal question for decision is, whether upon the trial of an indictment, drawn under the Act of May 9, 1889, P. L. 145, charging the receiving of deposits by an insolvent banker, with knowledge that he is at the time insolvent, schedules filed by the defendant in involuntary bankruptcy, and testimony of an expert accountant based upon an examination of his banking books that he had turned over to the trustee in bankruptcy, are admissible against him. What we shall say regarding the evidence furnished by the schedules will apply with equal force to the objection that the evidence furnished by the books could not be used against the defendant.
    1. Section 860 of the revised statutes of the United States is as follows: “No pleading of a party, nor any discovery or evidence, obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture; provided, that this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.” The term “any court of the United States” obviously means any federal court, and therefore this action of the revised statutes and the decisions under it may be dismissed as inapplicable to the present case.
    2. Clause 8 of sec. 7 of the bankruptcy act of 1898 provides that the bankrupt, whether voluntary or involuntary, shall prepare, make oath to, and file in court a schedule of his property showing certain facts in detail. Clause 9 of the same section provides that when present at the first meeting of his creditors and at such other times as the court shall order, he shall submit to an examination of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and in addition, all matters which may affect the administration and settlement of his estate. Immediately following these provisions relating to the examination of the bankrupt and forming a part of the same clause is the proviso, “but no testimony given by him shall be offered in evidence against him in any criminal proceeding.” In a well-considered opinion overruling the defendant’s motion for new trial and in arrest of judgment the learned trial judge likened the schedule to a statement of claim, a bill of particulars, or an affidavit of defense, which are not ordinarily part of the testimony in a case unless offered as such, and upon consideration of the immediate context held, that the' proviso above quoted refers to the testimony given by the bankrupt upon his examination and not to the matters set out in the earlier parts of the section. We concur in this conclusion.
    3. Counsel contend that the use of the schedule and the books in this trial was in violation of the defendant’s rights under the provision of the federal constitution, that no person “shall be compelled in any criminal case to be a witness against himself,” and the provision of the state constitution that in criminal prosecutions the accused “cannot be compelled to give evidence against himself.” It is to be observed that the commonwealth did not obtain these documents by any compulsion exerted by it upon the defendant. But it is said the schedules were filed and the books were delivered to the trustee by compulsion of the provisions of the bankruptcy law and of the general orders in bankruptcy, and therefore they could not be used in any criminal prosecution of the defendants either in the state courts or in the United States courts. It is to be observed in this connection, (1) that the bankruptcy act attached no penalty to the bankrupt’s failure to file the schedule; (2) that the schedules involved in the present case were not filed under compulsion of any special decree or order of court or of any attachment or proceeding for attachment; (3) that the defendants did not object to filing them upon the ground that thereby they would furnish evidence that might criminate them; (4) that they did not file them under the inducement of any provision of any act of congress or the state legislature prohibiting them from being used against them in any criminal prosecution in the state courts; (5) that it does not appear that at any time they filed them they were under arrest or had been charged with a criminal offense or were under any sort of duress. Generally speaking, and in the absence of statutory regulation on the subject, testimony and ,written statements voluntarily given or made by a party or witness in a judicial proceeding, are as admissions and confessions competent against him on the trial of any issue in a criminal case to which they are pertinent, and according to the great weight of authority such statements and testimony are considered voluntary when given or made under the circumstances above enumerated: Wharton, Crim. Ev., sec. 664; 1 Roscoe, Crim. Ev., 82, 245 (8th ed.); 1 Greenleaf on Ev., sec. 225; Williams v. Com., 29 Pa. 102; Hendrickson v. People, 10 N. Y. 13; Com. v. Reynolds, 122 Mass. 454; Vermont v. Duncan, 4 L. R. A. (N. S.) 1144, note; People v. Wieger, 100 Cal. 352. In addition to these authorities cited by the commonwealth's counsel we may mention Abbott v. People, 75 N. Y. 602; Com. v. Doughty, 139 Pa. 383; Com. v. House, 6 Pa. Superior Ct. 92. It follows that the court did not commit error in admitting the papers and testimony referred to in the first two assignments of error.
    The order of reference quoted in the third assignment of error was under the seal of the United States district court for the proper district, was forwarded by the clerk of said court to the referee in bankruptcy, and was produced and identified by him who was the legal custodian of the document. The objection made to its admission does not satisfactorily show that it was objected to on the ground that it was not properly executed or proven. But the objection seems to have been based on the ground “that it is another piece of 'testimony' growing out of the bankruptcy proceedings.” Under the circumstances, no error was committed in admitting the paper.
    All assignments of error are overruled, the judgment is affirmed and the record is remitted to the court of quarter sessions of Erie county to the end that the sentence be fully carried into effect.

      Error assigned was the judgment of the Superior Court.

      John B. Brooks, with him Paul A. Benson and Charles H. English, for appellants.

      W. Pitt Gifford, district attorney, for appellee.

      May 24, 1910:
   Per Curiam,

The judgments are affirmed on the opinion of the learned president judge of the Superior Court.


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    Henderson’s Estate.

      Wills — Construction—Income—Support and maintenance — Annuitant.

    Where a testatrix directs her executors to pay an annuitant $25.00 per month for life “and to keep sufficient funds invested therefor, and in case of sickness, if the said sum is not sufficient for his maintenance” to pay such additional sum as in their judgment may be necessary, and the executors file an account some years after the death of the testatrix, showing a balance on hand of over $41,000, of which over $10,000 was accumulated income, and the orphans’ court directs $15,000 to be invested for the annuitant, and distributes the balance to the residuary legatee, such action of the court will not be reversed on appeal, where there is nothing in the will to indicate that the whole fund was to be retained for the protection of the annuitant.
    Argued April 26, 1910.
    Appeal, No. 401, Jan. T., 1909, by Frank H. Henderson, legatee, from decree of O. C. Erie Co., Sept. T., 1909, No. 26, distributing balance in Estate of Caroline H. Henderson, deceased.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for distribution. Before Walling, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of distribution.

      R. H. Chinnock, with him J. R. Haughney, for appellant,
    cited: Mullen’s Est., 14 W. N. C. 144; Cummings v. Cummings, 146 Mass. 501 (16 N. E. Repr. 401); Treadwell v. Cordis, 71 Mass. 341.

      Charles A. Mertens, for appellee,
    cited: Chew v. Chew, 28 Pa. 17; Erisman v. Directors of the Poor, 47 Pa. 509; McCready’s Est., 7 Phila. 478; McCoy’s Est., 23 Pa. Superior Ct. 282; Zugsmith v. Rosenblatt & Co., 15 Pa. Superior Ct. 296.
    May 24, 1910:
   Per Curiam,

The testatrix provided by her will for the payment of three annuities from the income of her estate and directed her executors to keep sufficient of her personal estate invested to secure their payment. Two of the annuitants have died and the only persons now having an interest in the estate are the remaining annuitant, who is the appellant, and the residuary legatee. The provision for the appellant is as follows: “Third, I hereby direct my executors to pay to Frank H. Henderson the sum of twenty-five dollars per month for and during his natural life, and to keep sufficient funds invested therefore, and in case of sickness, if the said sum is not sufficient for his maintenance, I authorize my executors to pay such additional amount as in their judgment may be necessary.” The final account of the executors, filed ten years after the death of the testatrix, shows a balance in then hands of $41,542, of which $10,761 was accumulated income. The learned judge of the orphans’ court directed that $15,000 should be paid to a substituted trustee for the uses and purposes mentioned in the third paragraph of the will, and awarded the balance to the residuary legatee.

The appellant’s contention is that the sum of $15,000 is insufficient to secure the annual payment of $300 to him and to provide for his maintenance in case óf sickness, and that the whole personal estate should be held in trust during his life. This contention cannot be sustained. No intention that the whole personal estate should be held by the trustee to provide for the appellant can be gathered from the will. The direction is “to keep sufficient funds invested therefore” and the necessary implication is that the balance should be distributed. The amount to be retained was a matter to be determined by the judge of the orphans’ court, and nothing short of a clear abuse of discretion would induce an appellate court to disturb his finding. We are satisfied that his discretion was wisely exercised.-

The decree of the court is affirmed at the cost of the appellant.


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    Skeel’s Estate.

      Executors arid administrators — Distribution- -Mistake — Statute of limitations.

    Whore a testator dies in 1892, leaving a will making a certain provision for his widow, and his executors, under a construction of the will asserted by the widow, make payments to the widow between 1892 and L898, and these payments are not questioned by the residuary legatee until after the death of the widow in 1906, the residuary legatee cannot reclaim such payments from the widow’s administrator. The widow having received them under a claim of right, did not receive them as a trust fund, and the relation therefore between her and the residuary legatee was one of debtor and creditor. The claim was consequently barred by the statute.
    Argued April 26, 1910.
    Appeal, No. 335, Jan. T., 1909, by Walter J. Skeels, from decree of O. C. Erie Co., Nov. Term, 1907, No. 31, dismissing exceptions to auditor’s report in Estate of Esther A. Skeels.
    Before Fell, C. J., Mestbezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of Alfred B. Osborne, Esq., auditor. Before Prather, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Error assigned was "in determining that the statute of limitations is a bar to the right of the claimant to recover in this case.”

      May 24, 1910:

      C. W. Tyler, with him W. S. Smith, for appellant,
    cited as to the statute of limitations: Roller v. Meredith, 4 Pa. Superior ,Ct. 461; Com. v. Moltz, 10 Pa. 527; Patterson v. Nichol, 6 Watts, 379; Doebler v. Snavely, 5 Watts, 225; Logan v. Richardson, 1 Pa. 372; Dillebaugh’s Est., 4 Watts, 177; Stough’s Est., 196 Pa. 358.

      U. P. Rossiter, of Thompson, Rossiter & Thompson, for appellee,
    cited, Hostetter v. Hollinger, 117 Pa. 606; Dorrance v. Ryon, 35 Pa. Superior Ct. 180.
   Per Curiam,

J. S. Skeels died in 1892, possessed of real and personal estate, and by his will he gave to his wife, “in addition to her rights of dower” a small pecuniary legacy in payment of which she accepted personal property appraised at $50.00. The appellant, who was then nineteen years of age, was named in the will as the residuary legatee. The executor under the advice of counsel, and in the belief that by the words “rights of dower” the testator intended to bequeath to his wife the same interest in his personal estate that she was entitled to under the intestate law, paid to her one-half thereof, and to the appellant the other half. These payments were made between 1892 and 1898. In the latter year, the executor filed his final account to which was appended a distribution account. The correctness of the payment was not questioned until after the death of the testator’s widow in 1906, when a claim was made to recover from the administrator of her estate, the alleged illegal payment.

The auditor reported, (1) That the payment by the executor of the will of J. S. Skeels, to his widow, of one-half of the personal estate was a mistake honestly made, and (2) that any claim against the estate of his widow was barred by the statute of limitations. The latter finding, approved by the orphans’ court, was assigned as error.

The basis of the argument for the appellant is that the money received by the widow of J. S. Skeels was a trust fund in her hands, and that the statute of limitations was not a bar to its recovery from her. But it was not a trust fund as far as she was concerned. She received it under claim of right as her own, and held it as such, and any claim against her with respect to it, was on the same footing as regards the statute as an ordinary debt.

The order of the court dismissing exceptions and confirming the auditor’s report is affirmed.


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    Gibson’s Estate.

      Auditor — Findings of fact — Review.
    1. An auditor’s finding of fact approved by the court below will not be disturbed unless manifest error is shown.

      Interest — Mutual accounts — Decedents’ estates — Demand.
    2. Interest on a claim against a decedent’s estate is not demandable where it appears that both the claimant and the decedent had advanced money that was used by the latter in promoting a joint enterprise, that there had been mutual accounts between them which had not been adjusted and a balance struck prior to decedent's death, and that there had not been any demand made.
    Argued April 26, 1910.
    Appeal, No. 98, Jan. T., 1910, by H. O. Gibson, from decrees of O. C. Erie Co., Feb. T., 1908, No. 21, and May T., 1909, No. 15, dismissing exceptions to auditor’s report in Estate of Perry A. Gibson, deceased.
    Before Fell, C. J., Mestrezat, Elkin. Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to report of J. M. Force, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Error assigned was in dismissing exceptions to auditor’s report.

      Henry C. Yard, with him T. A. Lamb, for appellant.

      May 24, 1910:

      Frank Gunnison, with him John S. Rilling and Henry E. Fish, for appellee.
   Per Curiam,

The appellant’s claim at the audit was for advances of money made to the decedent in the management of a business enterprise in which they were jointly interested. The exceptions to the auditor’s report and the assignments of error here relate to the finding by the auditor of the amount due the appellant and to the disallowance of interest thereon. What amount was due was a question of fact, as to which the finding of an auditor, approved by the court, will not be disturbed unless manifest error is shown. Both the appellant and the decedent advanced money that was used by the latter in promoting a joint enterprise; there were mutual accounts between them which had not been adjusted and a balance struck and there had been no demand made. Under these circumstances interest was not demandable: Gyger’s App., 62 Pa. 73; Goodwill v. Heim, 212 Pa. 595.

The order of the court confirming the auditor’s report is affirmed at the cost of the appellant.