author: Mr. Justice Stewart,

text:
    Deeds v. Imperial Brick Company, Appellant.

      Mechanic’s lien — Contract—Superintendence of building — Breach of contract.

    A lien for work and materials on a building is a privilege derived entirely from statutory provision, and cannot be maintained for anything not actually furnished.
    On a scire facias sur mechanic’s lien where it appears that the plaintiffs were to receive ten per cent for superintendence based on the entire cost of the plant, and it also appears that they were dismissed before the building was completed, it is reversible error for the court to charge that if the jury found that the defendant had discharged plaintiffs from the work without justifying cause before its completion, they should render a verdict in plaintiffs’ favor for the full amount, the latter would be entitled to had they performed in full their contract, that is to say, for ten per cent of the entire cost of the completed building.
    Argued Nov. 8, 1907.
    Appeal, No. 143, Oct. T., 1907, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 502, on verdict for plaintiffs in case of George H. Deeds and James A. Deeds, Copartners as Deeds Brothers, v. Imperial Brick Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Scire facias sur mechanic’s lien.
    Evans, J., charged in part as follows:
    [If you determine that the terms of the contract were that the plaintiffs were to superintend this building to its completion, then the plaintiffs are entitled to recover ten per cent upon the cost of construction of the building, exclusive of whatever items you will find it was agreed that they were not to receive ten per cent upon, the machinexy, the brick, and if you find that they were not to have it, ten per cent on the wages of the foreman.] [1]
    [If you find that the plaintiffs were subject to dismissal at any time then their rights would terminate at the time of that dismissal. If you find that their commissions were based upon the entire cost of the building and that no right to dismiss them was reserved in the contract, then their commission should be based upon the entire cost of construction, ehminating or taking out those items which by the terms of the agreement they were not entitled to receive commissions upon.] [2]
    Defendant presented this point. This being a proceeding upon a mechanic’s lien, the plaintiffs cannot recover in this action except for superintendence actually done up to the time they were discharged and material then purchased under the contract. Answer: Refused. [3]

      Errors assigned were (1-3) above instructions, quoting them.

      S. S. Robertson, with him W. O. McNary, for appellant.
    Under an entire contract a material man’s lien cannot be made available by part performance: Maryland Brick Co. v. Spilman, 76 Md. 337.
    On the. other hand, where the contract fails of completion by the fault of the owner, the contractor is entitled to his lien to the extent of his actual performance: Canal Co. v. Gordon, 6 Wall. 561; Dennistoun v. McAllister, 4 E. D. Smith (N. Y.), 729; Doll v. Coogan, 48 App. Div. (N. Y.) 121.
    Damages for breach of contract in the construction of buildings recoverable by one principal contractor or subcontractor do not constitute a lienable claim: Seeman v. Biemann, 108 Wisconsin, 365; St. Johns, etc., R. R. Co. v. Bartola, 28 Fla. 82 (9 So. Repr. 853); Stephens v. Bishoff, 13 Pa. Superior Ct. 7.

      A. B. Reid, with him A. V. D. Watterson, for appellees.
    There are a number of well-reasoned cases which hold that where a person having a contract to perform labor or furnish materials is improperly prevented by the owner from completing his contract, he may file his lien for the entire amount, and the owner may show, as against such claim, the reasonable cost of completion, among them: Kipp v. Massin, 15 Ill. App. 300; Graf v. Cunningham, 109 N. Y. 369; Kenney v. Apgar, 93 N. Y. 539; Charnley v. Honig, 74 Wis. 163; Fitzgerald v. Walsh, 107 Wis. 92; Huttig Bros. Mfg. Co. v. Denny Hotel Co., 6 Wash. 122 (32 Pac. Repr. 1073); Trammel v. Mount, 68 Tex. 210 (4 S. W. Repr. 377); Linden Steel Co. v. Refining Co., 146 Pa. 4; Harner v. Thomas, 10 Pa. Dist. Rep. 487.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

From the nature and character of the affidavit of defense filed, and the manner in which this case was proceeded with, we must conclude that the effort of both sides, to some extent at least, was to try the case upon its merits. The attempt led to peculiar results. Ordinarily the affidavit of defense constitutes no part of the pleadings, but our recent act relating to mechanics’ liens contemplates that the real issue in such cases is to be defined through affidavit and counter affidavit. The issue of fact upon which the case was made to turn, would not have been possible under the plaintiffs’ statement of claim according to the ordinary rules of pleading. The claim filed set out a contract with the defendant company, to superintend for it the erection and construction of the buildings therein described, and to purchase the materials and secure the labor required ; for which service plaintiffs were to receive as compensation ten per cent of the entire cost of the buildings, certain items to be excluded. It averred further that the service plaintiffs had contracted to perform had been rendered, and the demand was for the sum stipulated, based on the entire cost. The contract here set up was an entire one, and the plaintiffs’ right to recover anything thereunder depended upon full performance by them: Shaw v. Turnpike, 2 P. & W. 454. Had the defense been made to rest on plaintiffs’ failure to perform in full, it must have ended the plaintiffs’ case, since it was admitted very early upon the trial that plaintiffs were dismissed from the work long before its completion, and that thereafter they had no connection with it. "While the fact of dismissal was stated in the affidavit of defense, it was not there stated as a substantive defense on which defendant relied, but was referred to only in connection with matters of set-off which were specially set out. The reference to it was introduced only to limit and restrict plaintiffs’ right of recovery to services rendered before dismissal. This fully appears by the request for instruction submitted by defendant’s counsel. The case as tried was made to turn upon the question whether defendant was justified in dismissing the plaintiffs. If issue had been joined on the averment of full performance, this question could not have been inquired into. It could have been pertinent only under a claim for the value of the labor performed, independent of the contract, on the ground that full performance of the contract had been prevented by defendant’s unjustifiable interference. But here, and we must assume it to have been by mutual consent, since it was without objection, it was made the controlling question. In submitting it the court instructed the jury in the general charge that if they found that the defendant had discharged the plaintiffs from the work without justifying cause before its completion, they should render a verdict in plaintiffs’ favor for the full amount they would be entitled to had they performed in full their contract; that is to say, for ten per cent of the entire cost of the completed building. The jury found for the plaintiffs, and rendered their verdict in accordance with the court’s instruction. The instruction was manifestly erroneous. By no sort of construction can a mechanic’s lien be made to embrace anything, whether labor or material, not actually furnished. Plaintiffs had a right to subject the buildings to a lien for the work they did upon and about its erection and construction; but a claim for anything beyond necessarily sounded in damages, and these can never be made the subject of a mechanic’s lien. “ A lien for work and materials on the, building is a privilege derived entirely from statutory provision, and cannot be maintained beyond the express grant of the act of assembly:” Tilford v. Wallace, 3 Watts, 141. No where in our mechanic’s lien law can be found even a suggestion that a lien may be maintained under it for anything not actually furnished, much less any express warrant. This instruction from the court having been assigned for error, it must be sustained.

Defendant’s counsel submitted the following point: This being a proceeding upon a mechanic’s lien, the plaintiffs cannot recover in the action, except for superintendence actually done up to the time they were discharged and material then purchased under the contract.” Here we have a standard for determining the amount plaintiffs are entitled to recover, quite as mistaken as that adopted by the court. Nothing short of an admitted agreement between the parties that it should be the proper standard could make it so. The case was tried on the lien as filed, for an entire contract, or it was tried apart from the contract on a quantum meruit, one or other. In neither case could the standard here set up obtain. The court committed no error in refusing the point, and the assignment relating to this action by the court is overruled. For the error committed by the court in the general charge to the jury, above referred to, the case must be sent back for another trial. Because of the pleadings and the manner in which the case was tried complications have resulted, but it is not for us to remove these.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Piatt v. Pittsburg Railways Company, Appellant.

      Negligence — Street railway — Crossing—“Stop, look and listen” — Non-suit.

    In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was injured in crossing at night a street on which there were two tracks of the defendant's railroad. The street had been excavated to the subgrade for the purpose of repairing it and the ties of the railway tracks were exposed. The plaintiff waited near the track until a car had passed on the track farther from him and was struck by a car going in the opposite direction on the nearer track. He had not crossed the first rail of the track, but was in the act of lifting his foot over it when he was struck. Held, that plaintiff was guilty of contributory negligence in running into an approaching car and that a nonsuit was properly entered against him.
    Argued Nov. 8, 1907.
    Appeal, No. 146, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 13, refusing to take off compulsory non-suit in case of David S. Piatt v. The Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Swearingen, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      George R. Wallace, for appellant.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellee.
    January 6, 1908:
   Per Curiam,

A nonsuit was entered in this case because the plaintiff’s testimony disclosed negligence on his part which contributed to the accident. The plaintiff was injured in crossing at night a street on which there were two tracks of the defendant’s railroad. The street had been excavated to the sub-grade for the purpose of repairing it and the ties of the railway tracks were exposed. The plaintiff waited near the track until a car had passed on the track farther from him and was struck by a car going in the opposite direction on the nearer track. He had not crossed the first rail of the track but was in the act of lifting his foot over it when he was struck. There can be no doubt of the correctness of the conclusion as to the facts and the law stated in the opinion of the learned trial judge: The fact is the plaintiff was struck by the car immediately upon lifting but one foot over the first rail to which he came. The car was right there when he lifted his foot to the rail. In other words, he ran into an approaching car. It is, therefore, of no moment that he testified that he looked toward the direction from which the car was approaching and that he did not see it. Because he said he could see at least fifty-feet, and, in another place, he said he could see about 100 feet. If he did turn in that direction, he could not have looked at all, as he said he did. The evidence does not show at what rate of speed the car was running. But, even if it were going at the rate of fifteen miles per hour, it would have gone twenty-two feet in one second; and the plaintiff would have had time to see it at the distance which he said he could see. And especially is this true, when the light from the east bound car, which he watched to Neil street, would have disclosed the west bound car approaching.”

The judgment is affirmed.


text:
    Kenyon v. Davis, Appellant.

      Will — Partition—Parties—Contingent interest — Sheriff’s sale.

    Where a testator gives a share oí his estate to a trustee to pay over the income, and at the trustee’s discretion a portion oí the principal to testator’s son during life, and upon his death to pay over the principal to the son’s children, or in default of such children, to testator’s other children, the trustee of such share is the proper party in partition proceedings, and it is not necessary to Join the son as party in such proceedings, or to appoint a trustee for the son’s unborn children to act as a party.
    A contingent interest in real estate may be sold at sheriff’s sale.
    Argued Nov. 8, 1907.
    Appeal, No. 142, Oct. T., 1907, by defendant, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1907, No. 201, on bill in equity in case of Thomas Kenyon v. Harry Davis.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    Prom the record it appeared that the defendant had agreed in writing to purchase from plaintiff a lot of ground at the corner of Federal street and Erie street, in the city of Allegheny, for the sum of $200,000. The defendant refused performance on the ground that the title was not good and mar-. ketable. Plaintiff derived title to the land in question by a deed from a master in partition, dated January 15, 1901. The property had formerly been owned by William Semple, who died on June 14, 1889, leaving a will wherein, after giving his real estate to his widow for life or during her widowhood, upon her death or marriage, devised the same as follows:
    “ To my eldest sons, David, William and James M. Semple I give and bequeath two-ninth (that is to say, one-ninth to each) of my whole estate; the remaining seven-ninths of my estate I devise in five equal portions, that is to say: I give one of said equal parts to each of my children, William, Francis McDonald, Mrs. Spiegle and Mrs. Gardner (last two above named) and the remaining portion I give and bequeath to my brother, James Semple (now of Bellevue borough, Allegheny county, Pa.), his heirs or appointees, in trust for my son, Robert S. Semple, during his life, to manage the said portion, collect the income and profits, and to pay over such portions of the annual income or such portion of the principal as he in his uncontrolled discretion shall think fit and proper, to the intent that the said interest shall not be liable to debts incurred by said son, Robert S., or power of anticipation on his part, and on his death to pay over and give the said estate or portion to his, said Robert’s children, but if he should die without issue living at his death, then the said interest or estate to go to my other children and their heirs, share and share alike.”
    After the testator’s death judgments were obtained against two of testator’s sons, James M. Semple and William Semple, Jr., and their respective interest in their father’s estate ' was sold at sheriff’s sale to Robert W. Cartwright and John D. Brown, trustee. Subsequently Elizabeth T. Spiegle, a daughter of testator, filed a bill for partition against the other parties interested in her father’s estate. Cartwright and Brown were made parties and James M. Semple was made a party, but Robert S. Semple was not made a party. The partition proceedings resulted in the sale of the land in controversy as a whole to Thomas Kenyon. Robert S. Sempie died January 27, 1903, without issue at the time of his death.
    Young, J., after finding the facts at length, concluded his opinion as follows:
    1. Under the will of William Semple the devise to James Semple, his heirs and appointees, carried to James Semple the whole legal estate in the undivided seven forty-fifths of the lands of which William Semple died seized, upon the trust to perform the active duties thereof, including the management of the portion, collecting the income and profits, and paying over such portion of the annual income or such portion of the principal as he in his uncontrolled discretion should think fit and proper, and on the death of Robert S. Semple to pay over and give the estate or portion to Robert’s children, but if he should die without issue living at his death, then the interest or estate to go to testator’s children and their heirs, share and share alike.
    2. Under the will of William Semple, Robert S. Semple took only an equitable estate for life in the lands whereof his father died seized, and upon his death without issue the remainder would become vested in the brothers and sisters of Robert S. Semple.
    3. James Semple, as trustee for Robert S. Semple under the will of William Semple, having taken the whole legal estate in the undivided seven forty-fifths of all the land of which William Semple died seized, was the only necessary party to the partition proceedings and had a right to appear on behalf of his cestui que trust, Robert S. Semple.
    4. James Semple had the right to bid for, or accept or refuse the purparts at their appraised value, and having accepted on behalf of the trust estate the real estate situated in the county of Beaver the interest which accrued to either James M. Semple or William Semple, Jr., if any, upon the death of Robert S. Semple without children living at the time of his decease, attached to the* purparts so accepted.
    5. By the deed of William II. M’cOleary, sheriff of the county of Allegheny, to Robert W. Cartwright, dated September 23, 1893, as found in the eighth finding of fact, all the right, title and interest of James M. Semple in and to the real estate described in complainant’s bill, whether vested or contingent, passed to and vested in Robert W. Cartwright, the purchaser at sheriff’s sale, and James M. Semple was not a necessary party to the proceedings in partition.
    6. By the deed of William H. McCleary, sheriff of the county of Allegheny, to John D. Brown, trustee, dated September 23, 1893, set out in the ninth finding of fact, all the right, title and interest of William Semple, Jr., in and to the real estate described in the first paragraph of complainant’s bill, whether vested or contingent, passed to and vested in John D. Brown, trustee, the purchaser at sheriff’s sale, and William Semple, Jr., was not a necessary party to the proceedings in partition.
    7. The contingent remainder devised to James M. Semple and William Semple having passed by the sheriff’s sale to Robert W. Cartwright and John D. Brown, trustee, and they having been made parties to the bill for partition and served and having appeared and answered the bill, and the remaining brothers and sisters entitled to a contingent estate upon the death of Robert without issue having been made parties to the partition proceedings, the whole contingent estate was represented in the proceedings, and it was not necessary to raise a trustee to represent those contingent remainders.
    8. The whole legal estate having passed to James Semple, trustee, and he having the power to accept or refuse purparts, it was not necessary to raise a guardian or trustee to represent the unborn children of Robert S. Semple.
    9. Robert S. Semple having died January 15, 1903, without issue, there is no outstanding estate, vested or contingent, legal or equitable in any person, all parties necessary having been made parties to or been represented at the partition proceedings, and concluded by the final decree in partition.
    10. At the date of the making of the contract, marked exhibit “A” and attached to the bill of complaint, and the tender of the deed pursuant thereto, Thomas Kenyon had a good and marketable title to the real estate described in the first paragraph of the bill in fee simple.
    11. The defendant must be decreed to make specific performance of his contract set out in exhibit “ A,” attached to the bill, upon the the tender to him of a deed in fee simple for the lands desorbed in the first paragraph of the bill, by paying to the plaintiff in cash the sum of $85,000, together with interest thereon from July 1, 1906, and the payment of any taxes paid by the plaintiff upon said land for the year 1906 or subsequently thereto, the payment to plaintiff of the sum of $316.62, being his proportion of the premiums of insurance paid by the plaintiff upon policies of insurance as provided by the agreement, and execute and deliver to the plaintiff his common bond and tight mortgage for the sum of $100,000, payable in three years from July 1, 1906, in gold or its equivalent, with interest at the rate of 5A%, payable semiannually, as provided by said agreement.
    DISCUSSION.
    The principal question Is whether or not there is an outstanding interest in the real estate described in the bill in James M. Semple and William Semple, which prevents the plaintiff from making a good and marketable title for the lands described in the agreement or contract of sale, the specific performance of which is sought. Under the will of William Semple there was bequeathed to James Semple, in trust for Robert S. Semple, seven forty-fifths of the estate of the testator, including the land in question, in trust to manage the said portion and pay the income and profits or so much of the principal as the trustee in his discretion should think fit, and at the death of Robert S. Semple to pay over the portion to the children of Robert living at his death, or in default of issue living at the death of Robert S. Semple, to the children and heirs of the testator, share and share alike, James M. and William Semple being two of such heirs. Robert S. Semple was not made a party to the proceedings in partition, nor was it necessary that he should be made a party. His interest could be and was represented by his trustee, who took the whole legal estate: Hutchison’s Appeal, 82 Pa. 509; Phelps v. Townsley, 92 Mass. 554; Rules of Supreme Court in Equity, 23rd Rule. Hor was it necessary to appoint a trustee to represent the interest of the unborn children of Robert Semple. The estate given to James M. Semple, trustee, was a devise of the whole legal estate, because the estate is given to him and his heirs and appointees with the right to dispose of the annual income and such portion of the principal as the trustee in his uncontrolled discretion should think fit, and he could maintain a bill in partition for the purpose of having the trust estate set aside in severalty. This case seems to us to differ from the case of Holmes v. Woods, 168 Pa. 530, in that the whole legal estate having passed to James Semple, and he having been made a party representing that entire legal estate, 'he necessarily represented the interest of the unborn children. He then, too, as the holder of the legal title could have maintained partition for the purpose , of having the interest set aside in severalty. In Hutchison’s Appeal, 82 Pa. 509, the petition for partition was dismissed because those holding the equitable title sought partition and thereby deprived the holder of the legal estate of his title and control and prevented him from performing the duties placed, upon him by the will. The converse of his proposition is therefore true, that the holder of the legal estate may without interference on the part of his cestui que trust, or those having a contingent interest, for the better performance of-his trust, have partition in order to have the interest set aside in severalty. We know of no case refusing partition to the holder of whole legal estate. To admit the cestui que trust or a trustee for the unborn children, would,' if it is necessary to make them parties, bring them in where they would have the right to and might do the very thing prohibited by the case of Hutchison’s Appeal, that is, strip the holder of the legal estate of all the power and duties placed on him by the testator. James Semple, trustee, having authority, then, and full power to appear and represent the interests of the cestui que trust and the unborn children of Robert under the devise to Robert S. Semple, and having accepted, chosen and taken in severalty certain purparts, all contingent interests were taken away from the property in controversy in this case and became attached to the other purparts chosen by James Semple in the partition proceedings: Merklein v. Trapnell, 34 Pa. 42. But James M. Semple and William Semple were not necessary parties to the bill in partition because their interest had been taken from them by the judicial sale of their interests upon the executions upon judgments obtained against them. The interest of James M. Semple in the real estate, and his contingent interest in the portion of the devise to .Tamos'Semple in trust for Robert S. Semple, were seized upon by the sheriff and sold and became vested in Robert Cartwright. The same is said of the interest of William Semple in the real estate and his contingent interest under the devise to Robert Semple, which was seized by the sheriff upon a proper judgment and conveyed to John D. Brown, trustee. Were authority necessary to sustain the position that the contingent interest can be sold at sheriff’s sale we have it in the very old case of Roe v. Humphreys, 1 Yeates, 427; the case of Drake v. Brown, 68 Pa. 223; Robins’s Estate, 199 Pa. 500; Wickersham’s Appeal, 18 W. N. C. 36; Ogden v. Knepler, 1 Pearson, 145. Under these authorities, then, and under the findings of fact that the sheriff did levy upon and seize all the right, title, interest and claim of James M. Semple and William Semple in the land in question, there can be but one conclusion — that they had no further interest in those lands and that their complete title to them passed to Cartwright and Brown, and therefore the subsequent proceedings in partition by the master’s sale gave to Thomas Kenyon, the plaintiff, an estate in fee simple in the lands described in the first paragraph of the bill, and he holds those lands by good and marketable title, which he can convey to the defendant. A decree should, therefore, be drawn in accordance with the conclusions found above.

      Error assigned was decree awarding specific performance.

      M. J. Hosack, of Hosack, Knox & Hosack, with him W. B. Rodgers, for appellant.

      F. C. McGirr, with him John Marron, for appellee.
    January 6, 1908:
   Per Curiam,

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


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

      Street railways — Passenger—Collision between wagon and car — Non-suit.

    In an action by a passenger against a street railway company to recover damages for personal injuries sustained by being struck by a pole of a wagon in a collision between wagon and car, a nonsuit is properly entered where the evidence shows that as the car approached a cross street with a steep grade and covered with ice, a team of horses was coming down the grade at a high rate of speed and beyond the control of the driver; that the motorman was not able to see the team until near the crossing; that a person ahead of the car threw up his hands as a signal, and the motorman slowed the car down, but immediately upon seeing the team, increased the speed so as to avoid collision; and that the tongue of the wagon struck near the rear of the car, injuring plaintiff alone, whereas if the speed had not been increased it would have struck the middle of the car and possibly injured a number of persons.
    Argued Nov. 8, 1907.
    Appeal, No. 193, Oct. T., 1907, by plaintiff, from order of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 288, refusing to take off nonsuit in case of John A. Downey v. Pittsburg Railways Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, KEBBEDy, P. J., filing the following opinion:
    We are unable to see, from the testimony in this case, any negligence on the part of the defendant company. It seems clearly a case of sudden danger and the motorman acting according to his best judgment. If a mistake was made, it was only a mistake of judgment in the emergency, and the defendant company would not be liable therefor.
    It seems from the testimony that the car, at the time of the accident, was passing along Fifth avenue, in the city- of Pitts-burg, approaching a cross street called Pride street, which had a very steep grade and was at the time covered with ice, and down which a team of horses was coming at a high rate of speed, and beyond the control of the driver. The motonnan was unable to see the approaching team until near the Pride street crossing, when a person on the street, some distance in front of the car, throw up his hands by way of a signal to the motorrnan, who immediately recognized it and checked the speed of the car, doing all that was required of him under the circumstances, viz.: putting his car under complete control. And then, seeing the team approaching in the manner described, the inference is that he supposed that he could get past and avoid the collision of the team with his car by increasing his speed, which he did at once.
    If this was a mistake, it was only a mistake of judgment acting in the emergency of sudden danger, and for such a mistake the company would not be liable.
    But was it any mistake ? The inference would seem to be that if he had not increased his speed, the tongue of the wagon, which, in the accident, struck near the rear of the car and injured only one person, would have struck in the middle of the car before he could have stopped, and perhaps have injured, instead of one, a number of persons. So that we are not able to see even that it was a mistake of judgment. But it would be no more than that; and, as stated, we are unable to see in the circumstances any negligence on the part of the defendant company
    Phillips v. People’s Passenger Railway Company, 190 Pa. 222, it seems to us, rules this case.
    The motion to take off the nonsuit must be denied. It is so ordered.

      Error assigned was refusal to take off nonsuit.

      Rody P. Marshall, with him Thomas M. Marshall and Meredith Marshall, for appellant.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellee.
    January 6, 1908:
   Per Curiam,

A majority of the court are of opinion that the judgment entered in this case should be affirmed for the reason stated in the opinion of the learned judge who presided at the trial.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Cunningham v. McCready, Appellant.

      Mortgage — Forfeiture clause — Signing paper without reading it.

    Where a mortgage in express terms provides that the whole principal debt shall become due in case of default in payment of interest for thirty , days, the mortgagor cannot without alleging fraud, accident or mistake, aver as a defense that the mortgagee had agreed not to demand payment of the principal for three years, and that he had signed the mortgage without knowing of the forfeiture clause contained in it.
    A mortgagor cannot claim to be relieved of a forfeiture for default in payment of interest -within the time specified in the mortgage, on the ground that he did not know to whom the interest should be paid, where it appears that he had paid the first installment of interest to a trust company, and had received a proper receipt therefor, and that he had drawn a check for the second installment to the same company, and had placed it in an envelope properly addressed, but that the same had not been mailed “through a misunderstanding or inadvertence.”

      Mortgage — Attorney’s commissions — Excessive commissions — Tender.
    Where an attorney for a mortgagee prepares an affidavit of claim, has it sworn to and issues a -writ of scire facias, and shortly thereafter a tender is made of $8,000, the principal of the mortgage, and interest thereon, and also $50.00 attorney’s fee, and the tender is refused and judgment is entered for the whole of the claim including five per cent attorney’s fee, the appellate court will modify the judgment by deducting from the amount of fee all above the sum of $50.00.
    Argued Nov. 8, 1907.
    Appeal, No. 153, Oct. T., 1907, by defendant, from order of C. P. No. 1, Allegheny Co., June T., 1907, No. 691, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Michael J. Cunningham v. James M. McCready.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Judgment modified.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of ’the Supreme Court.

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

      R. T. M. McCready, for appellant.
    This court and the Superior Court have treated the contract as being in the nature of a forfeiture, particularly where it appears that the anticipation of payment was an incidental feature of the contract and not the main object of the parties, and the more particularly where such required anticipation would be contrary to the intention of the parties: Fox v. Helmuth, 27 Pa. Superior Ct. 81; Nat. Sav. Fund & Bldg. Assn. v. Waters, 141 Pa. 498; Jones v. Scott, 209 Pa. 177; Noyes v. Clark, 7 Paige (N. Y.), 179; French v. Row, 77 Hun, 380 (28 N. Y. Supp. 849).
    Where no demand is made before entry of judgment and execution, if the debtor promptly pays, or offers to pay, debt, interest and costs at maturity, the creditor cannot recover attorney’s commission: Warwick Iron Co. v. Morton, 148 Pa. 72; Walter v. Dickson, 175 Pa. 204; Lewis v. Germania Savings Bank, 96 Pa. 86; Imler v. Imler, 94 Pa. 372; Commonwealth B. & L. Assn. of Lebanon v. Stroh, 12 Pa. Dist. Rep. 509.

      J. E. O’Donnell, for appellee.
    The affidavit does not specifically allege facts from which fraud, accident or mistake can be inferred, nor any act of misconduct on the part of the plaintiff inducing the defendant to execute the mortgage. His declaration that he did not read the mortgage is insufficient: Greenfield’s Estate, 14 Pa. 489; Reilly v. Daly, 159 Pa. 605; Johnston v. Patterson, 114 Pa. 398; Lane’s Appeal, 112 Pa. 499; Lewis v. Dunlap, 5 Pa. Superior Ct. 625.
    The exercise of the power to grant relief, as in cases of forfeiture and penalties for breach of covenants and conditions, is not imperative on the court; it ought not to be used except in cases where the defendant is likely to suffer an injury through no fault or neglect of his own: Warwick Iron Co. v. Morton, 148 Pa. 72; Atkinson v. Walton, 162 Pa. 219; Walter v. Dickson, 175 Pa. 204; Lewis v. Germania Savings Bank, 96 Pa. 86.
    January 6, 1908:
   Opinion by

Mr. Justice Brown,

The mortgage on which this sci. fa. was issued was executed by the appellant on April 2, 1906, to secure to the appellee the payment of $8,000 at the expiration of three years from its date, with the privilege of paying the principal at any time during that period. The interest was payable semiannually, with the proviso that, in case default be made in its payment for the period of thirty days after it shall become due, “the whole of said principal, debt and interest then unpaid shall thereupon become due and payable, and a writ of scire facias may be issued forthwith on said mortgage and prosecuted to judgment, execution and sale for the collection of the whole amount of said principal debt and interest thereon remaining unpaid, together with all fees, costs and expenses of such proceeding, including an attorney’s commission of five per centum for the collection of the same.”

The mortgage was given for the balance of purchase money. The averments in the affidavit of defense, and the supplement thereto, are that it was a condition precedent to the contract of sale, that the defendant should be allowed three years to pay the balance of $8,000, that the only other obligation to the plaintiff was the payment of interest semi-annually on the said sum, and that said condition precedent was made part of and set forth in the written contract of sale, pursuant to which the mortgage was given. The contract of sale referred to in the affidavits of defense, and made part of the same, provides: “ Deferred payments to be secured by common bond and tight mortgage on the premises.” A “tight ” mortgage is one which allows no days of grace, or a limited number, after default in paying interest or principal before foreclosure proceedings may be begun: Anderson’s Law Dictionary, 689. There is no averment in the affidavit of defense that the mortgage given was other than a “ tight ” one, or that the terms as to default are not the ones usually found therein; but, without regard to the contract of sale, the mortgage became the final agreement between the parties as to the terms of the payment of the balance of the purchase money, and, in the absence of fraud, accident or mistake in its execution, the mortgagor must be held to its plain terms. They are that the interest on the principal sum shall be paid, semi-annually, and that on default for a period of thirty days in the payment of the same, the principal sum shall become due and payable. There is no doubt as to wbat these words mean, and there is no allegation that they were inserted by fraud, accident or mistake, nor an averment of any facts from which such an inference is to be drawn. From a careful examination of the affidavits of defense, covering sixteen pages of appellant’s paper-book, nothing can be gathered on this branch of the case except an averment, which, by this time, ought to bo understood as unavailing, that the appellant executed the mortgage not knowing that it contained tho clause as to default. His averment is that he “ executed the mortgage presented to him, not knowing that the forfeiture claim was provided for or could be enforced, and relying wholly upon said contract of sale.” There is no averment that the mortgagee, or anyone acting in his behalf, had misled him when he executed the mortgage, and, in referring to the agreement of sale, he seems to forget that this suit is not upon it, but upon what the law looks upon as the paper containing the final agreement of the parties to it. He simply did not read it, and for his failure to do so there is not to be imputed either fraud on the part of the mortgagee or accident or mistake in the preparation and execution of the mortgage. “ If a party who can read will not read a deed put before him for execution, or, if unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law:” Gibson, C. J., in Greenfield’s Estate, 14 Pa. 489.

The second installment of semi-annual interest on the mortgage became due April 2, 1907. As to the contention that the scire facias was prematurely issued, nothing more need be said than that it was not issued until May 4, 1907, thirty-two days after April 2. Equally without merit is the averment that the appellant did not know — because he did not know the whereabouts of the mortgagee — to whom the interest ought to bo paid, and it is difficult to understand how he could have made such an averment in view of his own admissions. When the first installment of interest became due, October 2, 1906, having previously been notified by the Allegheny Trust Company that it would then be due, he made payment to it of tho interest and took its receipt therefor. In pursuance of its notice that the second semi-annual installment would be due on April 2, 1907, he, on the following day, drew a check to its order for $240, duly inclosed it in an envelope addressed to the trust company, but the same was not mailed, “ through misunderstanding or inadvertence.” The misunderstanding or inadvertence was, of course, his own, and but for it and his failure to mail the check, he would have received a proper receipt for the interest from the agent of the appellee, whose authority he had clearly recognized in the preceding October, and which was never questioned by the appellee.

On the argument of this case our impression was that nothing was involved in it except the attorney’s commissions, and that impression has since been confirmed. In all other respects the affidavit of defense is insufficient. On May 3, 1907, without notice of any kind to the appellant — to which, it may be conceded, he was not entitled — the attorney for the mortgagee prepared an affidavit of claim, had it sworn to by his client, and, on the day following, issued this writ. He had done absolutely nothing, so far as can be gathered from the record, except to prepare the affidavit and sign the praecipe, and yet, in the affidavit of claim which he prepared for his client, he alleged that five per centum on the principal was due as an attorney’s commission. The fee asked for and allowed in the order for judgment was $419.33. In the tender made by the defendant of principal and interest, on May 16, 1907, before any defense was made, which tender, however, cannot under the averment in the affidavit of defense be understood as having been kept up, there was included an attorney’s fee of $50.00. This the attorney for the appellee could have had at that time, and his client could have had his debt, interest and costs. The refusal of the tender was manifestly due to what counsel for appellee regarded as insufficient compensation to him. For what he had done up to that time he ought to have been content with what he was offered, for it was reasonable and fair compensation. In Daly v. Maitland, 88 Pa. 384, the scire facias on the mortgage for $14,000 was tried before a jury, and the mortgagee asked for and was allowed, under binding instructions, the whole five per cent, collection fee. In reversing the judgment and holding that two per centum was all that the court ought to have allowed as attorney’s fee, it was said by Shakswood, C. J.: It does not appear by the paper-books that there was in this case any rule for judgment for want of an affidavit of defense, though it does appear that there was no other defense than the amount of the collection fee. Had there been such a rule, the court should have decided the question, and not have sent the case to the jury. We think the learned judge below wms right in refusing to leave it to the jury to determine the rate of commission, but ho was wrong in instructing them to find the full amount agreed upon. Five per cent, upon $14,000, in other words $700, -was far beyond what was reasonable, even in view of the fact that the defendant below had interposed a defense against the commission, and that the case might be carried by writ of error to this court. We think, even under these circumstances, two per cent, would have been an ample and liheral allowance, and the jury should have been so instructed. In general, this court will not review the exercise of a sound discretion by an inferior court upon such a question, and the presumption will always be in favor of their decision unless it is plainly excessive, or, as appears to have been the case here, founded on the mistaken idea that they had no equitable power to interpose and moderate the agreed amount.” Here there was no trial, and, as the sum tendered the appellant for counsel fees was reasonable compensation for professional services rendered up to the time the tender was made, we must modify the judgment accordingly by reducing it from $8,806 to $8,436.67, with interest from July 22,1907. As so modified it is affirmed.


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    Burnett’s Estate.

      Parent and child — Adoption—Inheritance—Intestate laws — Acts of May 4, 1855, P. L. 430, April 13, 1887, P. L. 53, and May 19, 1887, P. L. 125.
    An adopted child, under the laws of Pennsylvania, cannot inherit from collateral kindred of the adopting parents.
    Argued Nov. 8, 1907.
    Appeal, No. 155, Oct. T., 1907, by Clara Burnett, from decree of O. C. Allegheny Co., April T., 1907, No. 100, overruling exceptions to adjudication in Estate of Martin H. Burnett.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Over, J., filed the following adjudication :
    Martin H. Burnett died intestate November 22, 1905, leaving to survive him one brother, one sister, and children of a deceased brother.
    Elias Burnett, another brother, a resident of the state of Ohio, died before the decedent, leaving no issue; he, however, had adopted under the laws of that state as his son, one John Ferguson, a minor, whose guardian claims that he is entitled to share in the distribution of the estate under our intestate laws and statutes relating to adoption. Under the latter, however, an adopted child “ has the rights of a child without being a child ” and can inherit from the adopting parent: Schafer v. Eneu, 54 Pa. 304.
    This decedent having left a brother and sister, and a nephew and niece, children of a deceased brother and sister, the estate is to be distributed under sec. 3 of the act of April 8, 1833, which provides that:
    “ If such intestate shall leave brothers or sisters, .... and also nephews and nieces, being children of such deceased brother or sister, .... every such brother and sister shall receive such share as he or she would have received if all the brothers and sisters who shall then be dead, leaving children, had been living at the death of the intestate, and such nephews and nieces shall take by representations of their parents respectively, .such share only as would have descended to such parents if they had been living at the death of the intestate.”
    The parents referred to here are not the adopted but the natural parents, and as this claimant is not a child of the intestate’s deceased brother, nor intestate’s nephew, it follows that he is not entitled to distribution.
    On exceptions, Over, J., filed the following opinion :
    The claimant and Elias Burnett were residents of the state of Ohio, and the former was adopted by the latter under the laws of that state. As both wore domiciled there and the adoption is not repugnant to the jurisprudence of this state, it seems to be valid here: Foster v. Waterman, 124 Mass. 592; Wharton’s Conflict of Laws, sec. 251; but the adopted child can only inherit in this state under our laws of descent: Smith v. Derr’s Administrators, 34 Pa. 127. As he is not of the blood of this intestate, he cannot inherit from him under the intestate act of 1833; but it is contended that under the statute providing for the adoption of children, he can. The seventh section of the act of May 4, 1855, which was amended by the act of May 19, 1887, Stewart’s Purdon, page 279, pl. 1, only as to the necessary parties to the adoption proceedings, provided that an adopted child should “ have all the rights of a child and heir of such adopting parent.” It does not, however, give such a child the lights of a nephew or niece, and of a collateral heir of the brothers and sisters of the adopting parent; and if it had been the intention to change the intestate acts so that intestate’s testate should descend without his consent to a person not of his blood, surely such an intention would have been clearly expressed. It is suggested that if the adopted child has all the rights of a child, it necessarily has the rights of inheritance, as a natural child of the adopting parents. If so the child could inherit as such from the natural children, and it would not have been necessary to provide in the concluding part of the section that the adopted child and other children of the adopting parent should “ inherit from and through each other as if all had been the lawful children of the same parent.” The obvious purpose of the act was to provide for the adoption of children, and to amend the intestate laws only so that the adopted child could inherit from the adopting parent and his children.
    The only other Act relating to the matter is that of April 13, 1887, P. L. 53, Stewart’s Purdon, 2006, pl. 60. This act gives the inheritance of the estate of an adopted child to the adoption parent and their lawful heirs and kindred, to the exclusion of the natural parent, kindred and heirs at law of the child, reserving, however, to the husband and wife of the child their rights under the intestate laws, “provided, however, that this Act shall only apply to such property as the adopted child shall have inherited or derived from the adopting parent of their kindred.” At first blush it seems that the right of the child to inherit from the adopting parents’ collaterals was recognized by the proviso; but this right did not exist when the act was passed, and in construing it, the word “derived” should follow.“or,” so that it would read “ or derived from their kindred.” Under the act of 1855, the adopting parent could not inherit from the child: Commonwealth v. Powel, 16 W. N. C. 297; and the purpose of the act was to give such a parent and his kindred the right of inheritance as to any estate the child inherited or derived from them, and under the act they seem to have a prior right to the adopted child’s issue.
    The exceptions to the adjudication must be dismissed.

      Error assigned was the decree of the court.

      Stephen Stone, with him Wm. M. Roach and Wm. A. Stone, for appellant.
    The apparent intention of the legislature and of the courts since the passage of the adoption acts, has been to extend to an adopted child all the rights, privileges and duties of a natural child: Schafer v. Eneu, 54 Pa. 304; Kohler’s Est., 199 Pa. 455; Rowan’s Est., 132 Pa. 299; Morgan v. Reel, 213 Pa. 81.

      Jas. W. Collins, for appellee,
    cited: Ross v. Ross, 129 Mass. 243; Quigley v. Mitchell, 41 Ohio, 375; Upson v. Noble, 35 Ohio Rep. 655.
    January 6, 1908:
   Per Curiam,

The decree is affirmed on the opinion of the learned judge of the orphans’ court.


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    Muscrelli v. Mercantile Trust Company, Appellant.

      Contract — Municipal contract~-Rejected material — Title to property.

    Where a city contract provides that materials shall be subject to approval by the director of public works, and certain material furnished by a subcontractor is rejected, and subsequently sold at a sheriff’s sale, but allowed, by the purchaser to remain on the premises, a surety for the contractor who completes the work has no title to the material, and if he appropriates and uses it, he will be liable in damages to the purchaser.
    Argued Nov. 8, 1907.
    Appeal, No. 156, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1904, No. 235, on verdict for plaintiff in case of Caesare Muscrelli v. Mercantile Trust Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for wrongful appropriation of building material.
    Before Ford, J.
    Verdict for plaintiff for $4,562.07. On a motion for a judgment non obstante veredicto, Fobd, J., filed the following opinion:
    On May 13, 1897, the city of Pittsburg entered into a contract with Jonathan Clark Sons Company for the construction of Highland Reservoir No. 2 in the city of Pittsburg. The Mercantile Trust Company became surety for Clark Sons Company on bond conditioned for the faithful performance by Clark Sons Company of their undertakings under the contract.
    Under date June 26, 1897, Clark Sons Company entered into a contract with Joseph Gianini, whereby Gianini agreed to perform work and furnish materials necessary and specified in the contract between the city and Clark Sons Company. In pursuance of this contract, Gianini delivered at the reservoir a large quantity of stone and cement.
    On April 5, 1899, an execution was issued sur judgment of Joseph Marks v. Joseph Gianini, and a levy made on certain stone and cement then at the reservoir as the property of defendant. Clark Sons Company filed a claim to a portion of the stone and cement so levied upon, and thereafter disclaimed title. The stone and cement so disclaimed and other stone and cement not claimed was thereafter sold by the sheriff and purchased by plaintiff. The material was not removed by plaintiff, but was allowed to remain about the reservoir until appropriated or used by the defendant company.
    Clark Sons Company entered upon the construction of the reservoir, and so continued until about December 16, 1899, when the city, in the exercise of its rights under the contract, notified the contractors to discontinue work, and took possession of the reservoir.
    About September 10, 1900, the Mercantile Trust Company, surety, proposed to the city of Pittsburg to complete the reservoir under the contract between the city and Clark Sons Company. The proposal was accepted, and in pursuance thereof the defendant company completed the reservoir.
    On taking possession, the defendant company found on the premises the stone and cement purchased by plaintiff at sheriff’s sale as the property of Gianini. About November 13, 1900, the plaintiff notified defendant company of its claim to the stone and cement. Thereafter the defendant company used said stone and cement in the construction of the reservoir.
    Paragraph 60 of the contract between the city and Clark Sons Company provides:

      “ The director reserves the right to accept or reject any or all stone for want of conformity with these specifications at any time previous to its being finally accepted and paid for in full by the city, notwithstanding that it may have previously passed inspection.”
    Paragraph 181 provides:

      “ When defective material has been condemned it must be at once removed from the ground and stored as required by the director, or otherwise disposed of to his satisfaction.’?
    The obvious purpose of the paragraph in part quoted was to vest in the city the right to reject materials not in conformity with the specifications, and to require storage of rejected material in such manner as would work the least convenience. The expression, “ stored as required by the director,” enabled the city to require such disposition of rejected material as would free the premises and prevent use of rejected material in the construction of the reservoir.
    The material was sold and delivered by Gianini to Clark Sons Company, subject to the right of inspection and rejection by the city. Delivery does not consist in the mere transfer of location or custody of the property. The agreement that the material should be inspected and condemned for want of conformity to the specifications implied that if not of a quality which would pass inspection, Clark Sons Company was not obliged to accept. Until accepted by the city, no right of property vested in Clark Sons Company, nor was the company responsible, under the terms of the contract, for its price. The passing of the title to specific chattels depends upon the intention of the parties to be derived from the contract. There must be the minds of both parties concurring in the transfer, the intent of one to deliver and the other to receive.
    In this case the express intention of the parties was, that the material should be furnished, subject to the right of the city to inspect and condemn. If condemned, the right of the property remained in the subcontractor, and no obligation rested upon the contractor to either accept the material or pay therefor. It was not denied by defendant that the material had been condemned, but it was contended that the city, on annulment of the contract between the city and Clark Sons Company, became entitled to all material in and about the work.
    This was true as to all material owned by Clark Sons Company. But as to materials, the property of others than Clark Sons Company, and materials which had been condemned, the city, under its contract with Clark Sons Company, acquired no interest.
    Of the levy Clark Sons Company had notice. The company claimed the greater part of the stone levied upon. Thereafter the company disclaimed, and the stone and cement were sold at sheriff’s sale and purchased by the plaintiff. The material having been condemned, there was no right in Gianini nor in the plaintiff, to call upon Jonathan Clark Sons Company for the value of the stone and cement under the contract between the city and Clark Sons Company.
    There is no evidence in this case that the defendant was the mere agent or servant of the city in putting this material into the reservoir, nor is there any evidence of an order from the city of Pittsburg to the defendant company directing such use of the material. The title to the property was not in Clark Sons Company but in the plaintiff. The defendant company had notice of plaintiff’s claim, and in disregard of such notice appropriated and used the material in the construction of the reservoir.

      The plaintiff had the right of possession, and at any time after the sheriff’s sale might have removed the material.

      Error assigned was the refusal to enter judgment for defendant non obstante veredicto.

      Wm. A. Stone, with him Stephen Stone, for appellant.

      J. A. Wakefield, with him W. H. Cox, for appellee.
    January 6, 1908:
   Per Curiam,

The facts of this case are set forth in the opinion of the learned judge who presided at the trial, and the conclusion he reached is fully sustained by the evidence. The property in controversy was furnished by Gianini, a subcontractor, to be used in the construction of a reservoir, under an agreement with the principal contractor, a corporation, that all materials •furnished by him should be subject to approval by the director of public works. The property was inspected and rejected and afterwards sold by the sheriff as the property of Gianini. The corporation was not required to accept materials that did not pass inspection by the director of public works and it did not accept these. It had no claim to them and made none, and the defendant, in carrying out th'e contract to protect its interest as surety for the contractor, acquired no right to the property.

The judgment is affirmed.


author: Opinion by Mr. Chief Justice Mitchell,

text:
    South Side Trust Company v. McGrew, Appellant.

      Will — Devisavit vél non — Testamentary capacity — Uudue influence— Evidence.

    Where testamentary capacity is unimpaired, undue influence cannot be established by anything short of clear, direct and convincing evidence that testator’s own mind was controlled and dominated by another.
    The testamentary capacity of the testatrix cannot be impeached where the testimony shows that she knew her property, and the amount of her income, that she knew all of her kindred and the objects of her bounty, that she transacted herself most of her important büsiness matters, and that she had a clear understanding of the testamentary act itself. In such a case the testimony that her mind had become somewhat more inert than it had been through physical illness, and the usual neighborhood gossip and tattle as to incompetency, have no importance.
    On the trial of an issue devisavit vel non it appeared from the evidence that the will was written by a justice of the peace known to the testatrix, was taken by him to her, and after some discussion about witnesses (the squire’s wile not having come as the testatrix had requested), a friend was summoned and the will executed in their presence. The justice copied the will from a form in the handwriting of the beneficiary who was present in the room when the will was executed and told the testatrix, who was palsied, to take her time and write carefully. The form was explained by showing that it was an exact copy, except as to names, etc., of the will of testatrix’s former husband, from whom she had derived her property, and which she kept by her, among her important papers. There was evidence that the beneficiary was of a domineering disposition, controlled the testatrix, interfered with her affairs, and kept other relatives away. On the other hand, it appeared, without contradiction that the beneficiary was a niece of the testatrix, daughter of a favorite sister of the whole blood; that she was invited to live with testatrix, and after her mother’s death was intrusted with household duties and took care of her aunt from that time. It also appeared that the testatrix lived for two years and a half after the making of the will, showed it to at least one friend and told why she had made it, and had abundant opportunity to have destroyed or changed it if she had desired. Held, that the court committed no error in setting aside a verdict against the will.
    Argued Nov. 11, 1907.
    Appeal, No. 138, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1905, No. 833, for plaintiffs non obstante veredicto in case of the South Side Trust Company, Executor d. b. n. c. t. a. of the will of Margaretta McGlarran, deceased, and the Allegheny Trust Company, Committee of Amy E. Brubaker, a lunatic, v. Josephine K. McGrew, Newton McClarran, Lizzie W. Stoner and A. C. Kimmel.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Issue devisavit vel non.
    Before Macfarlane, J.
    The facts are stated in the opinion of the Supreme Court.

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

      John Marron, with him F. C. McGirr, for appellant.
    We recognize the rule as laid down in Herster v. Herster, 122 Pa. 239, and Robinson v. Robinson, 203 Pa. 400, and other cases that where an issue has been granted if after the case has been fully developed the court, in view of the whole evidence, considers it not sufficient to sustain the material facts, it ought to set aside the verdict. Even in such a case, however, all the court could do would be to grant a new trial, not enter judgment for the plaintiffs non obstante veredicto. This is the rule in the case of Butts v. Armor, 164 Pa. 73, which was a contested will case, but in such a case, in reviewing the evidence the court should keep in mind the other well-known rules defining the duties of the court and jury, otherwise a jury trial would be of no use and a mere farce.
    The evidence of undue influence was sufficient to sustain the verdict: Boyd v. Boyd, 66 Pa. 283; Reel v. Elder, 62 Pa. 308; Miller’s Est., 179 Pa. 645; Robinson v. Robinson, 203 Pa. 400; Tawney v. Long, 76 Pa. 106.

      J. M. Shields, with him E. B. Scull and Charles W. Dahlinger, for appellees,
    cited as to the question of undue influence: Eckert v. Flowry, 43 Pa. 46; Englert v. Englert, 198 Pa. 326; Hook’s Est., 207 Pa. 203; Masterson v. Berndt, 207 Pa. 284; Allison’s Est., 210 Pa. 22; Masseth v. Masseth, 213 Pa. 434; Mulholland’s Est., 217 Pa. 65; Cuthbertson’s App., 97 Pa. 163; Caldwell v. Anderson, 104 Pa. 199; Yorke’s Est., 185 Pa. 61; Logan’s Est., 195 Pa. 282; Coleman’s Est., 185 Pa. 437; Friend’s Est., 198 Pa. 363; Hook’s Est., 207 Pa. 203.
    January 6, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The learned judge below was of opinion that there was “ no satisfactory evidence that the testatrix’s mind was impaired to any great extent. . . . There was no issue as to testamentary capacity, and the weight of the contestant’s own testimony is that the testatrix had complete testamentary capacity, and when considered with the indisputable facts shown on the other side as to actual business transactions and the testimony of entirely disinterested persons whose credibility cannot be attacked, the only fair conclusion is that there was full testamentary capacity. That is to say, the testatrix not only knew her property and the amount of her income, knew all of her kindred and the objects of her bounty, but she had a clear understanding of the testamentary act itself.” The testimony amounted at most to showing that with physical illness her mind had become somewhat more inert than it had been, and somewhat more susceptible to suggestions and influence, but did not show failure of her mental faculties. There was the usual neighborhood gossip and tattle that she was not competent to transact business, worthless in itself and contradicted in this case by the fact that she did attend personally to nearly all of her important business matters, so far as to keep informed and give orders about them.

The evidence fully sustains the judge’s conclusion that her testamentary capacity was not impaired. And where that is the case, undue influence cannot be established by anything short of clear, direct and convincing evidence that testator’s own mind was controlled and dominated by another’s.

The will was written by a justice of the peace who knew the testatrix, was taken by him to her, approved by her and, after some discussion about witnesses (the squire’s wife not having come as the testatrix had requested) a friend was summoned and the will executed in their presence. Where the circumstances of the making of the will are thus shown a strong presumption arises in its favor. Against this presumption are the facts that the justice copied the will from a form in the handwriting of the beneficiary and that she was present in the room when the will was executed and told the testatrix who was palsied to take her time and write carefully. The form, however, was explained by showing that it was an exact copy except as to names, etc., of the will of testatrix’s former husband from whom she had derived her property, and which she kept by her among her important papers. Thus explained there was little weight in the fact that the copy was in the beneficiary’s handwriting.

Apart from this there was little in the case except the opinions of some of the relatives and friends that the beneficiary was of a domineering disposition, controlled the testatrix, interfered with her affairs, kept other relatives away etc. On the other hand, it appeared without contradiction that the beneficiary was a niece of the testatrix, daughter of a favorite sister of the whole blood; that she was invited to live with testatrix, and after her mother’s death was intrusted with household duties and took care of her aunt from that time. And, finally, the testatrix lived for two years and a half after the making of the will, showed it to at least one friend and told why she had made it, and had abundant opportunity to have destroyed or changed it if she had desired.

The learned judge below after a careful review of the whole testimony felt constrained to set aside the verdict, and our examination leads us to the same conclusion.

Judgment affirmed.


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    Schondelmeyer, Appellant, v. Columbia Fireproofing Company. Johnston v. Same.

      Corporations — Books—Right of stockholders to inspect books.

    A stockholder of a corporation who has brought an action of trespass for deceit against the president of the corporation as an individual, for misrepresenting the value of the stock of the company sold to plaintiff, has no standing to demand an inspection of the books of the corporation in order to ascertain the value of the stock.
    Argued Nov. 12, 1907.
    Appeals, Nos. 158 and 159, Oct. T., 1907, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April Term, 1907, No. 761, for defendant on mandamus in case of G. J. Schondelmeyer v. Columbia Fireproofing Company, a Corporation, James W. Grove, President, and Chester D. Winger, Secretary.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for writ of alternative mandamus.
    Shafer, J., filed the following opinion:
    An alternative writ of mandamus was issued in this case directing the defendants to permit the relator “ to have access to all books and records of said corporation showing, or tending to show, the financial condition of said company, and the value of petitioner’s stock therein in the years 1901 and 1902, and knowledge of the said James W. Grove thereof, including the cash books, day books, journals, bills payable and stock ledgers, minute books, and all other books and papers touching upon said matters, at reasonable times, and to permit the said Schondelmeyer to employ an expert or experts to examine, audit and make copies of said books for said purposes, or to show cause why they should not do so.” The writ was founded upon a petition which averred, and these averments were contained in the writ also, that the defendant company is a New Jersey corporation having its business office in the city of Pittsburg, and that all of its books are in the city of Pittsburg ; that the relator in 1901 bought certain shares of the stock of said defendant corporation, and subscribed to certain other shares, and that these purchasers and this subscription were made upon the strength of certain representations made by one of the defendants, James W. Grove, who then was, and still is, the president of the corporation, as to solvency of the company and the value of the shares ; that these representations were untrue, and known by Grove to be untrue; that the petitioner has brought an action against Grove for deceit in making such representations, and in order to ascertain the exact financial condition of the corporation at the time the representations were made, it is necessary for the plaintiff to have access to the books, and that access to the books has been refused. To this writ defendants made a return admitting that they have a set of books in the city of Pittsburg ; denying that Grove made any representations as stated by the relator in regard to the financial condition of the company ; admitting the bringing of the action against Grove, and denying the right of the relator to examine the books and papers of the company as directed by the writ. To this return relator has demurred. When this case was first argued the question was suggested whether an order to examine the books of a foreign corporation, although doing business in this county, might not bo an interference with the interna] affairs of a foreign corporation, but it was finally conceded by counsel for defendants that such would not be the case, and they make no defense upon that ground, relying solely on the claim that a proper case for the examination of the books has not been made out by the relator. The relator relies upon the case of Neubert v. Armstrong Water Company, 211 Pa. 582, in support of the proposition that a stockholder is entitled to examine the books of the company whenever for any reason he desires to know the value of the stock. We do not, however, understand any such proposition to be laid down in that case. The question in that case, as stated by the court, was, “ Did the appellees in good faith desire an inspection of the books of the defendant corporation for a definite and proper purpose pertaining to the corporate business and affecting their right as stockholders ? ” and the allegation was that the defendants had acquired a majority of the capital stock of the company, that they had failed to keep accounts and make statements, and that they had done this and other illegal acts for their personal benefit and to prevent the plaintiffs from knowing the value of the stock, and were endeavoring to purchase the stock from the minority stockholders by various devices compelling them to sell their stock below its value. In the present case, however, it does not appear by the pleading that the relator is in any way aggrieved by the action of the company, or that his rights as a stockholder have been infringed upon, but that having an action for deceit against a person who happens to be the president of the company, for misrepresenting the value of stock sold to him, he desires to examine and audit the books of the company of the years 1901 and 1902 to ascertain whether or not the defendant, in his action of deceit, told him the truth or not. We are unable to see that the fact that the defendant Grove was at that time president of the company makes any difference in the rights of the relator. If the relator’s contention is correct, he would have the same right to examine the books of the company if his action were against a defendant who was a mere stranger to the company. If the relator’s position is correct, everyone who buys stock in a corporation and thereby becomes a stockholder, would have a right to examine the books of the company whenever a controversy might arise between himself and any third person which involved the value of the stock, there being no reason why it should be confined to cases where a misrepresentation of value was alleged. If this were to be done, the inconvenience to the corporation, which has absolutely no interest in the controversy and the conduct and management of which is not involved in it, would certainly be very great. It is laid down in the books that a stockholder is entitled to an inspection of the books of the company at reasonable times and for a specific and proper purpose. There is no question in this case as to reasonable time, nor as to the specific purpose of the relator. The question is, whether it is a proper purpose. We have been referred to no case in which it has been held that an examination for any purpose, except such as affected the rights of the party as a stockholder, is a proper purpose. In the Phœnix Iron Company v. Commonwealth, 113 Pa. 563, the right of examination of books by a stockholder is said to exist “ where it is desired for a specific, honest purpose, and where there is a particular matter in dispute involving and affecting seriously the rights of the relator as a stockholder.” We cannot see how in the present case the rights of the relator as a stockholder are in any way affected. We are of opinion, therefore, that the demurrer should be overruled.
    And now, April 24, 1907, the demurrer is overruled and judgment is entered for the defendant with costs.

      Error assigned was the judgment of the court.

      Frederic W. Miller, with him John S. Robb, for appellant.
    It is not believed that James W. Grove, as a defendant in the actions for misrepresentations, is to be regarded in the light of a mere stranger in view of all the circumstances of these cases, particularly his connection with the new company as well as the old, and the fact that he as president is presumed to be intimately acquainted with the financial affairs of his corporation at all times. His access to the corporate books at all times is a matter of absolute right: People v. Goldstein, 37 App. Div. 550 (56 N. Y. Supp. 306).
    In the earliest decisions a stockholder was allowed the right to inspect the books to aid a stockholder in controversies with others: Rex v. Fraternity, 2 Strange, 1223; Williams v. Life Ins. Co., 23 Beav. 338; In re Crosby, 28 Misc. Rep. 300 (59 N. Y. Supp. 865); Lewis v. Brainerd, 53 Vt. 519; Chable v. Nicaragua Canal Construction Co., 59 Fed. Repr. 846.

      R. A. Balph, with him James Balph, for appellees,
    cited: Com. v. Empire Pass. Ry. Co., 134 Pa. 237; Investment Co. of Phila. v. Eldridge, 175 Pa. 287.
    January 6, 1908:
   Per Curiam,

Judgments affirmed on the opinion of the court below.


text:
    Ott, Appellant, v. Boggs.

      Fall of wall — Unknown causes of accident — Evidence—Nonsuit.
    Where, in an action of negligence, the only evidence as to the cause of the accident is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would have been adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions, point to the cause to which defendant’s responsibility attaches, with such degree of certainty as would justify a jury in finding it to have been the proximate cause.
    In an action to recover damages for the death of plaintiff’s husband caused by the fall of a wall, a nonsuit is properly entered where the evidence shows two independent causes, to one or the other of which the collapse of the wall could be referred, and for only one of which were the defendants in any way liable.
    Argued Nov. 12, 1907.
    Appeal, No. 149, Oct. T., 1907, by plaintiff, from order of C. P. No. 3, Allegheny Co., May T., 1905, No. 738, refusing to take off nonsuit in case of Pamelia Ott v. Boggs & Buhl.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    Before Kennedy, P. J.
    At the trial it appeared that the decedent was or had been an employee of the General Fire Extinguisher Company, who-had a contract with the defendant for the erection of a two-story stable building and also a 15,000 gallon gravity tank oh a steel structure built above the walls of the stable building. The erection of the steel structure for this tank was sublet by the General Fire Extinguisher Company to one Carl Schenck, and at the time of the accident the decedent was working upon the steel structure when the tank and structure fell and he was killed.
    The substance of the testimony relating to the cause of the accident is set forth in the opinion of the Supreme Court.
    The-court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      A. B. Reid, with him A. V. D. Watterson, for appellant.

      Willis F. McCook, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

Where, in an action of negligence, the only evidence as to the cause of the accident is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would have been adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions point to the cause to which defendant’s responsibility attaches, with such degree of certainty as would justify a jury in finding it to have been the proximate cause. A finding -where the evidence does not measure up to this standard would be a mere balancing of probabilities. A defendant’s negligence is not to be determined in this way. And this suggests the weakness of the plaintiff’s case. The same testimony which was relied upon to show that the walls of defendant’s building were insufficient to support the superstructure which he had contracted to have built, and about which plaintiff’s husband was engaged when he lost his life, because some specimens of the mortar used in their construction, on examination were found to be lacking in cement, and therefore lacking in binding strength, showed that two legs of the iron or steel tripod on which rested the large tank filled ivith water, were bent. This tripod, for the support of the tank, was so constructed that two of the legs rested on the outer wall of the building and the other on an interior wall. The bending of two of them might not have been sufficient in itself to precipitate the tank, but a very-natural result would be a disturbance of the equal distribution of weight, and a change not only in the point of pressure upon the walls, but a change in the direction of that pressure as well. It is not difficult to understand how under such a change of conditions a wall entirely adequate for purposes originally designed, might suddenly become wholly inadequate.' Counsel for plaintiff are frank enough to admit that the evidence in regard to the bending of the legs of the tripod is unsatisfactory even from plaintiff’s standpoint, but argue that it was enough in connection with the positive evidence as to the defective walls, to carry the case to the jury. The difficulty here is that the evidence in regal’d to the bending of the legs of the tripod, is in no sense supplementary to that in regard to the defective walls; it showed a different cause to which the collapse could just as well be referred, and for which defendant was not in any way liable. Plaintiff offered no evidence whatever to show that this cause did not operate, either independently or concurrently with the other, to produce the result. As the case stood on the evidence, it could not be judicially determined what caused the collapse. At best it would have been mere speculation by the jury had the case been submitted.

Judgment affirmed.


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

      Negligence — Street railways — Passenger—Riding on platform — Contributory negligence — Nonsuit.
    In an action by a passenger against a street railway company to recover damages for personal injuries sustained by being thrown from the rear platform of a street car, a nonsuit is properly entered where the evidence shows that before the car reached the street where plaintiff was to alight, and after the street had been called twice by the conductor who knew where plaintiff was to alight, the plaintiff arose from his seat in the body of the car, passed the conductor in the aisle, and while the car was going at a high and increasing rate of speed took his stand on the back platform, and was thrown therefrom by the violent lurching of the car in going around a curve.
    Argued Nov. 12, 1907.
    Appeal, No. 161, Oct. T., 1907, by plaintiff, from order of C. P. No. 1, Allegheny Co., June T., 1904, No. 115, refusing to take off nonsuit in case of C. C. Mooar v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Macfarlane, J.
    The circumstances relating to the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      L. K. Porter, with him S. G. Porter, for appellant.
    Plaintiff being injured by reason of the manner in which the car was being propelled, raises a presumption of negligence against the defendant: Babcock v. Los Angeles Traction Co., 128 Cal. 173 (60 Pac. Repr. 780); Reber v. Traction Co., 179 Pa. 339; Walters v. Phila. Traction Co., 161 Pa. 36; North Chicago St. Ry. Co. v. Brown, 178 Ill. 187 (52 N. E. Repr. 864); Bard v. Traction Co., 176 Pa. 97; O’Donnell v. Allegheny Valley R. R. Co., 59 Pa. 239.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellee.
    Plaintiff was guilty of contributory negligence in leaving his seat in a rapidly moving car, and proceeding to the rear platform of the car: Sweeney v. Union Traction Co., 199 Pa. 293; Linch v. Traction Co., 153 Pa. 102; Jennings v. Union Traction Co., 206 Pa. 31; Blue v. Penna. R. R. Co., 1 Mona. 757; Jackson v. Traction Co., 182 Pa. 104; Bainbridge v. Union Traction Co., 206 Pa. 71.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

It appears from the plaintiff’s own testimony that he received his injuries while standing on the rear platform of the car. The burden was at once put upon him of showing that he was there under circumstances that gave rise to no imputation of negligence on his part. He had taken the car at the corner of Fourth avenue and Smithfield street, in the city of Pittsburg, to go to his home, and it was his' purpose to leave the car at the crossing of Long street, where it was his custom to stop. He occupied a seat within the car. As the car approached the crossing at Long street, but while it was still moving rapidly, the conductor twice called out the name of the street. The plaintiff thereupon, without waiting for the car to stop, and before it materially lessened its speed, arose and proceeded to the platform, when in passing around a curve, by some irregularity of motion in the car, he was thrown from the platform to the ground and injured. The contention is that the conditions at the time being such as prevented plaintiff from seeing for himself, he had a right to regard the calling out of the street by the conductor as an invitation for him to go upon the platform at that time for the purpose of alighting ; especially so, since while proceeding to .the platform he passed the conductor in the aisle without receiving from him any warning or caution. This contention cannot be sustained. The plaintiff says that the conductor knew that he was to get off the car at Long street. Plaintiff, therefore, must have known that the car would stop there. Notwithstanding, he left his seat, where he was in perfect safety, while the car was moving rapidly and with increasing speed as he reached the platform, and voluntarily occupied a place where danger is always to be apprehended. No duty rested on the conductor to warn him of such danger, if for no other reason, because the plaintiff does not say that the conductor saw him attempt to pass outside of the car. No bell had been rung or any other signal given to the motorman to stop the car before the plaintiff proceeded to the platform. The accident must be attributed to plaintiff’s own want of prudence. No negligence was shown on part of defendant, and the nonsuit was properly ordered.

Judgment affirmed.