author: Mr. Justice Brown,

text:
    Sedden v. McBride, Appellant.

      Mandamus—Practice—Parties—Misjoinder—Judgment.

    Mandamus is a common-law writ. Though the practice in proceedings on a petition for it is regulated by statute, the common-law rule prevails that there cannot be two judgments on it. When two or more join in a petition for the writ, and it appears that one of them has no right to it, there cannot be one judgment for a peremptory writ in favor of the rest of the petitioners and another judgment in favor of the defendants as to the other one. When there is a joinder of petitioners the peremptory writ must be ,or all of them or for none of them.
    Argued Oct. 31, 1904.
    Appeal, No. 65, Oct. T., 1904, by defendants, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1903, No. 869, on demurrer to return in case of J. J. Sedden et al. v. Hugh McBride et al. and the National. Beneficial Association.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestbezat, Potter and Thompson, JJ.
    Reversed.
    Petition for mandamus..
    The opinion of the Supreme Court states the case.

      Error assigned was in awarding writ of peremptory mandamus.

      W. B. Rodgers, for appellants.

      Frank O. Me Birr, with him John Marrón, for appellees.
    December 31, 1904:
   Opinion by

Mr. Justice Brown,

The answer of the defendants to the petition of the plaintiffs was traversed, but the traverse was withdrawn and a demurrer filed to the return or answer. The judgment for the appellees, by which they were awarded a writ of peremptory mandamus, was on their demurrer, as is admitted by both sides. Without such an admission we could not gather from the record exactly what the court did, but with it the appeal is to be disposed of as being from a judgment for the plaintiffs below on their demurrer to the return or answer of the defendants.

The National Beneficial Association was incorporated September 27, 1902. In the following month, October 27, at a meeting of the incorporating and other members, the seven appellees, Hugh McBride, one of the appellants, and Hermann L. Grote, were elected a board of directors, and, according to the petition, no time was fixed during which they should serve. A further allegation of the petitioners, is, that since October 20, 1902, there has been no election held according to any by-law of the association, and the directors elected on that date were to continue in office until the first Tuesday in 1904. Among the directors elected, all of whom are alleged to still be such officers, is George W. Moss. The answer avers that on October 28, 1903—-eighteen days prior to the filing of the petition— George W. Moss, Jr., had resigned as a member of the board of directors, his resignation to take effect at once. George W. Moss, Jr., and George W. Moss must be regarded as one and the same person in view of the allegation in the petition that there had not been any election of directors since October 20, 1902, and that those then elected were still such officers. If George W. Moss resigned as a director, his resignation took effect at once, not only because it is so averred in the return, but because section 17, article V, of' the by-laws, made part of the petition, provides that the acceptance of the resignation of a director shall not be required to make it effective. There is then a distinct admission by the demurrer that the writ of peremptory mandamus should not have issued in favor of one of the petitioners.

Mandamus is a common-law writ. Though the practice in proceedings on a petition for it is regulated by statute, the common-law rule prevails that there cannot be two judgments on it. When two or more join in a petition for the writ, and it appears that one of them has no right to it, there cannot be one judgment for a peremptory writ in favor of the rest of the petitioners and another judgment in favor of the defendants as to the other one. When there is a joinder of petitioners the peremptory writ must be for all of them or for none of them. This rule of common-law pleading was evidently overlooked by the court below. Nothing more need be said about it, and the other questions raised on the appeal need not be considered.

The judgment below is reversed and. is entered here for the defendants on the plaintiffs’ demurrer to their return.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Warner’s Estate.

      Husband and wife—Antenuptial agreement.

    Where the provision made for a wife, in an antenuptial agreement, is grossly disproportioned to the value of the husband’s estate,, fraudulent concealment will be presumed, and the burden of proof will be thrown on him, or those claiming under him after his death, to show that full disclosure had been made to the wife of the value of his estate.
    Argued Oct. 31, 1904.
    Appeal, No. 190, Oct. T., 1904, by R. E. Warner and Lawrence Warner, from decree of O. C. Allegheny Co., June T., 1904, No. 155, dismissing exceptions to the account of Fidelity Title and Trust Company, administrator of E. S. Warner, deceased.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication. See Warner’s Estate, 207 Pa. 580.
    From the record it appeared that the decedent, E. S. Warner, and Mary Sands being in contemplation of marriage executed an agreement in writing on July 6, 1897, by which they relinquished all marital rights in each other’s estate.
    On the day of the wedding, August 11,1897, they signed the following paper:
    “ It is hereby understood and agreed by and between the parties to the foregoing contract that the estate and property now owned and possessed by the said E. S. Warner, consists of a house and lot situate at No. 16 Ninth street, Pittsburg, Pa., of the value of about $15,000 and. of a house and lot situate at No. 418 Penn avenue, Pittsburg, Pa., of the value of about $25,000 and of personal property consisting only of his household goods and furniture at his residence.”
    When the balance shown by the account of the administrator came up before the orphans’ court for distribution, the widow claimed one third thereof and the two sons of the decedent, the appellants, set up the antenuptial contract as a bar to her claim. The auditing judge awarded one third of the estate to the widow.
    Exceptions filed by the sons were disnW" ae following opinion by Hawkins, P. J.:
    The cases which have sprung out of antenuptial' contracts may be appropriately divided into two classes : (1) those in which, notwithstanding the prospective wife’s ignorance of the extent and value of the husband’s estate, the contract was sustained because the court found that in the circumstances her provision was reasonable; and (2) those in which the contract was set aside because the husband’s representative failed to show that a disproportionate provision was made with the wife’s knowledge of the extent and value of his estate: Neely’s Estate, 124 Pa. 406. The cases of Smith’s App., 115 Pa. 319 and Ludwig’s App., 101 Pa. 535 are examples of the first class; and Kline v. Kline, 57 Pa. 120; Bierer’s App., 92 Pa. 265 of the second. The reason which underlies the second class, with which we are concerned here, is that the parties deal with each other, not like strangers at arms length, but with the openness and fairness which the confidential relation existing between them necessarily implies, and whose absence constitutes a fraud which vitiates the transaction. It is, therefore, well settled that where the provision made for the wife is grossly disproportioned to the value of the husband’s estate, fraudulent concealment will be presumed and the burthen of proof thrown on him to show that full disclosure had been made. Tested by this principle, how stands the present case ? When this contract was before the Supreme Court in the contest over its validity which grew out of the grant of letters, Mr. Justice Bkown said that “ it was so harsh and unreasonable on its face as to raise the presumption ” that Dr. Warner “ designedly concealed ” from Miss Sands “ the value of his estate at the time it was executed.” The presumption that the appellee was not informed of the value of his estate at that time becomes almost conclusive in the light of the testimony of his attorney who prepared the paper and witnessed its execution. Having subsequently, as he testified, examined the authorities and satisfied himself that trouble might arise from “ an allegation on the part of the widow that she did not have full information as to the amount of the estate of the intended husband at the time of execution of the paper,” he deemed it prudent for the protection of his client to have added to it the paper which the parties signed on August 11, 1897, the day of the wedding. “ If this contract is to be sustained, it will only be after those claiming under the deceased husband have, by proper proof, overcome the presumption that there was concealment from the wife, amounting to fraud upon her, of the value and extent of his estate.” The question now for decision is whether or not this burthen has been sustained ? Analysis of the evidence will show that it has not. Reliance for this purpose is placed upon additional testimony given by Dr. Warner’s attorneys. Taking up this testimony it is important to notice in the first place that in the senior counsel’s examination in chief in the contest for letters, he said nothing about Miss Sands having been informed of the “ value and extent ” of Dr. Warner’s estate when the first paper was executed. On cross-examination, however, he “thought” she had been informed of its “ amount ” but not of its “ value.” He did not attempt to state what had been said; if he had been positive as to this he would naturally have gone into particulars, for this was obviously vital; and the fact that he found it necessary to have the second paper signed with a view to prevent “ an allegation ” by the widow of lack of “ full information ” would seem to imply at least uncertainty in his mind at that time as to*the fact. If he could not give particulars then, the improbability of his being able to do so a year later affects his credibility. The value of his testimony is further impaired by the fact that while he states his son informed Miss Sands of the property Dr. Warner had, his son testified that he only mentioned two pieces of that property by way of illustration; and the inference is, did not undertake to give her full information.

      This is the character of the evidence upon which Dr. Warner’s sons rely to sustain their burden of proof. Standing by itself it is of doubtful value; and beside is met by positive denial on the part of Mrs. Warner—oath against oath. But assuming that the facts are as stated, the evidence falls short of the measure of required proof. Without knowledge of the “value ” of Dr. Warner’s estate, which it is admitted was not given, Miss Sands could not make an intelligent decision. If she had lived in the same neighborhood, which she did not, knowledge of the value of his estate would not have been implied : Bierer’s Est., 92 Pa. 265. She was not a woman of business experience. She was surrounded by Dr. Warner and his attorneys, and it does not seem to have even been suggested she should have advice of friends. “ To say she was bound, when the contract was proposed, to exercise her judgment; that she ought to have taken advantage of the opportunity that existed to obtain information; that if she did not do so it was her own fault, is to suggest what would be revolting to all the better feelings of woman’s nature: ” Kline v. Kline, 57 Pa. 120. To have selfish* and interested motives at such a time cannot be imputed to her. She had a right to assume that her prospective husband would act justly with her. Hence his duty to be frank and unreserved in the disclosure of all the circumstances materially bearing on the contemplated agreement. The duty and responsibility of full disclosure were his ; the evidence fails to show that he made it; and the contract was, therefore, properly set aside upon the presumption of fraudulent concealment.
    The exceptions must, therefore, be dismissed.

      Error assigned was the decree of the court dismissing the exceptions.

      JD. E. Patterson, for appellants.

      J. M. Stoner, with him R. T. M. Mc'Oready, for appellee.
    December 31, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the learned president judge of the court below.


text:
    King’s Estate.

      Wills—Codicils—Construction—Trusts and Trustees—Accumulations of income.

    Testator in his will created a spendthrift trust for a son for life. At the death of the son the principal of the trust estate was devised to the children of the son. The trustee was directed to pay to the son out of the annual income an amount not to exceed $5,000 and it was directed that any income in excess of this annual payment should be invested for the benefit and increase of the share held in trust. On the same day that the will was executed, the testator by a codicil revoked the devise in trust for the son and directed his executors to pay to the wife and children of the son the sum of not less than $1,500 nor more than $5,000 per year, “said payments to continue during the lifetime of my son and his wife, and either of them, and that upon the death of both of them the said one third interest in my estate to go to their children, as provided in my said will. And I declare that I hereby revoke any devises directly or in trust for my said son Alexander contained in my said above will.” The wife subsequently died leaving to survive her the husband and five children. The income was in excess of the sum of $5,000 per year. Held, (1) that notwithstanding the codicil and the substitution therein of other payees than testator’s son a valid trust existed for the son’s share for life even if he survived his wife; (2) that the accumulations being largely in excess of the allowance fixed in the will should be distributed to the children of the son.
    Argued Oct. 81, 1904.
    Appeal, No. 191, Oct. T., 1904, by tbe Colonial Trust Co., guardian of Charles II. King, from decree of O. C. Allegheny Co., April T., 1904, No. 16, dismissing exceptions to adjudication in the estate of R. H. King, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts appear by the opinion of Hawkins, P. J., as follows :
    The questions raised in this case are whether or not (1) an active or dry trust was created by the fifth clause of Mr. King’s will; and (2) accumulations are distributable.
    The facts are these:
    Mr. King died August 24, 1895, leaving a will, in which, after certain bequests and devises, ho proceeds :
    “ 5th. Subject also to said devise and bequest, 1 give, devise and bequeath to my said daughter, Martha King (now Kepler), the remaining third part or portion of all my estate, real, personal or mixed, to her and her heirs and assigns forever; in trust, nevertheless, to hold the same for my son Alexander during’ the term of his said natural lifetime. The interest or income of said property, real or personal, to be paid to him directly, and not to be subject to his debts or liabilities or any judgment or decree of any court liable for any costs thereon, and after the decease of my son Alexander King, to grant, convey and assign the said property and principal to the children of my said son Alexander, or in cas.e of the death of his said children before their father, then to the heirs of said deceased child or children.
    “ And in further trust that the said trustee shall pay out of said annual income to each of my said sons, not exceeding the annual sum of five thousand dollars, which is to be paid to them monthly or quarterly, as she may decide, and that any sums in excess of said annual payment she will invest the said excess of income of the said shares held so in trust for the benefit and increase of the respective shares so held in trust for the reversion thereof.”
    On the same day, attested by the same witnesses, this codicil was executed;
    “ I, Robert H. King, the above testator, do make, publish and declare this codicil to my above will, and do hereby revoke any and all devises and bequests therein made to my son, Alexander King, and I hereby direct my executors to pay to the wife and children of my said son Alexander the sum of not less than fifteen hundred dollars per year, with the privilege to allow them not more than five thousand dollars per annum, the payments to be made in quarterly payments. Said payments to continue during the lifetime of my son and his wife, and either of them and that upon the death of both of them the said one third interest in my estate to go to their children, as provided in my said will. And I declare that I hereby revoke any devises directly or in trust for my said son Alexander contained in my said above will.”
    Mr. and Mrs. King had five children when testator died, of whom one was over and four under twenty-one years, but all are now of age except Charles. The trust was accepted and f> 5,000 paid to Mrs. King annually until she died, October 25, 1901 since which time it has been paid to her eldest daughter Mrs. Jones, who, by mutual understanding, was authorized to manage the same.
    Mr. King and the children continued to live together until, about January, 1908, Mr. King and his son Melford withdrew, and are occupying rooms elsewhere.
    The income of this share is largely in excess of the $5,000 directed to bo paid Mrs. King.
    The solution of the question in this case depends upon whether or not the purpose which testator had in view has been accomplished. It is very plain that his original purpose in the creation of the trust was to protect his son Alexander against his own improvidence during natural life; and that if the original will had stood, there would be a valid subsisting trust to-day, Alexander being still living. The test of its validity lies in a lawful purpose legally declared: Krebs’s Estate, 184 Pa. 222. This much is conceded. It is equally plain that notwithstanding the substitution made by the codicil to other payees than testator’s son Alexander, the interposition of a trust remains. There are neither express words nor necessary implication of revocation of the trust; the real purpose in making the codicil was not revocation of the trust but substitution of new payees. If there was any doubt to the continuance of the trust created by the original will, it must be resolved by the direction to pay and the discretionary powers vested in trustees by the codicil as to the amount to be paid, which of themselves imply the exercise of active duties, and, therefore, a valid trust; for to have the means of payment of interest or income there must be investment and collection, and discretionary power must have a subject; Krebs’s Estate, supra. It was practically conceded that the trust did continue during Mrs. King’s life; but did testator intend that it should con tinue longer ? It certainly was his original purpose that it should continue during his son Alexander’s life; for he says so; and if, as already suggested, the codicillary purpose was simply to make a new payee, the trust remained, for there is no rule of construction better settled than that the effect of a codicil shall be limited to its purpose. And besides, the codicil itself bears on its face express evidence of intended trust. Trustees are specifically directed to pay in their discretion to the wife and children of testator’s son Alexander, $1,500 to $5,000 per annum, “said payments to continue during the lifetime of my son and his wife, and either of them.” The duration of the trust was thus to be measured by the life of the survivor, and Alexander survives. The payments of “ interest or income ” were to continue during the life “ of either of them.” If the trust was valid during Mrs. King’s—it must continue during Mr. King’s life.
    It was urged, however, that because testator’s son Alexander has no beneficial interest in the estate, there was no occasion for the continuance of the trust. The answer to this is, that the testator has expressly declared the performance of active duties by the trustee shall “ continue ” during his son’s life. Even assuming that he has no beneficial interest, there is no reason why his life should not be made a measure of duration of the trust. There is just as much reason for sustaining a trust pur autre vie as an estate pur autre vie. But is it true that Alexander has no beneficial interest in the estate ? There is no apparent reason why he should have been disinherited. Testator’s affection for him is unmistakably manifested by making him in the original will sole beneficiary, and guarding his enjoyment of it by the interposition of a spendthrift trust. Why the testator on the same day should have stricken out his name and substituted his wife and children is not explained. Probably some new evidence of improvidence occurred which suggested further protection, and he therefore made his son’s wife dispenser of his bounty. Certainly he cannot be supposed to have had in his contemplation his son’s exclusion from the enjoyment of his bounty in common with his wife and children— that he should live in poverty and they in luxury, in the same house ; nor would exclusion be consistent with wifely impulse or duty. The revocation of any devise “ directly ” made testator’s son, implies indirect benefit intended, and the limitation of duration of the trust by the son’s life is explicable upon no other theory of construction than that he should enjoy this bounty in common with his wife and children. His name is associated with the beneficial enjoyment from beginning to end in such manner as to leave no doubt of his interest. Living together in the same family, it is incredible testator intended any discrimination against his son in this enjoyment, and even if there had been such intention, it would have been impossible of execution without a tendency to severance of the family relation. The father’s belief in his son’s disposition to improvidence would naturally make him more solicitous to provide for his declining years.
    It is obvious, from what has been said, that the conduct of the beneficiaries can have no effect on the duration of the trust itself. The mandate of continuance during the son’s life is so absolute and so positive as to put it beyond the power of anyone to end. Children may marry, one after another, or father and child may, in disregard of parental or filial duty, leave home, and no right of participation in the trust estate possibly be thereby lost or suspended: Paisley’s App., 70 Pa. 153; Bowden v. Laing, 14 Simons, 113. It is not proper to speculate in this case as to what would take place in the event of complete breaking up of the home, for the fact that two members of the family voluntarily left could not have that effect.
    There is no apparent reason why the allowance should not be paid Mrs. Jones as heretofore.
    The accumulations in this case are so largely in excess of the allowance fixed in the will, and the contingent fund proper to judicious management of the trust, that they fall within the prohibition of the statute. In view of the character of this estate 110,000 would for the present provide an ample contingent fund. And as the balance of the accumulations was intended for the benefit of the children, distribution should be made to them.
    There is nothing on the face of this will to justify the additional suggestion made at the argument of the exceptions that the primary purpose in the creation of the trust was accumulation. The natural and obvious purpose was the protection of the testator’s son and his family from his improvidence, and the provision for accumulation was simply incidental. But even concede that accumulation was part of the scheme, it does not follow that that relating to the maintenance of the family must fail. It is the policy of the law to carry out the testamentary intention so far as it is possible: Forney’s Estate, 161 Pa. 209; and the validity of the trust to this extent is clear and should therefore be carried out.

      Error assigned among others was the decree of distribution.

      James R. Sterrett of Patterson, Sterrett Aaheson, for appellants,
    cited: Odgen’s App., 70 Pa. 501; Sharps’s Estate, 155 Pa. 289; Gray on Perpetuities, secs. 119, 120.

      Ernest E. Jones, for appellee,
    cited: Little v. Wilcox, 119 Pa. 439 ; Rife v. Geyer, 59 Pa. 393; Dodson v. Ball, 60 Pa. 492; Krebs’s Estate; 184 Pa. 222; Forney’s Estate, 161 Pa. 209; Hemphill’s Estate, 180 Pa. 95.
    December 31, 1904:
   Per Curiam,

This judgment is affirmed on the opinion of the learned judge below.


author: Mb. Justice Potteb,

text:
    Kaufman, Appellant, v. Pittsburg, Carnegie & Western Railroad Company.

      Railroads—Eminent domain—Land damages—Evidence—Declaration against interest—Compromise—Location.

    Where, prior to the location of a railroad, a landowner through whose land the preliminary surveys have been made, writes a letter to a representative of the railroad company, offering to sell the land at a certain price, the letter is evidence on behalf of the railroad company in a subsequent proceeding for the condemnation of the land, as a declaration by the landowner against interest. The letter having been written prior to the location of the road, and proposing to sell the fee cannot be rejected on the ground that it was written in the course of negotiations for compromise, where the letter itself negatives the claim that the offer contained in it was by way of compromise. Until the railroad is actually located, there can be no disputed right to compromise.
    Owners of property, about to be taken by a railroad company, are bound by declarations as to value or offers to sell at a specified price, made at or about the time of the taking; but offers made in the course of negotiations for the compromise of a claim for damages are not to be shown.
    An offer to show that the plaintiff in a railroad condemnation proceeding at the time of writing a letter offering to sell his land to the railroad company had nothing to do with the property or its management and also to show why he subsequently withdrew the proposal to sell is properly rejected.

      Appeals—Assignments of error—Charge of court—Practice, C. P.—Request for charge.

    Error cannot be assigned of what was not said by the trial judge, without a request to so charge.

      Appeals—Assignment of error—Charge of court—Practice, C. P.—Assignment of error to entire charge.

    An assignment of error to the entire charge of the court, without pointing out any specific error will not be considered by the appellate court.

      Railroads—Eminent domain—Location—Directors.

    Preliminary surveys of a railroad do not constitute a location. The act of location of a railroad is the selection and adoption of a line by the board of directors of the company.

      Appeals—Assignments of error—Evidence—Letten—Rule 31.
    An assignment of error to the admission of a letter in evidence which does not set forth the letter, does not comply with rule 31 and is defective.
    Argued October 31, 1904.
    Appeal, No. 192, Oct. T., 1904, by plaintiff, from judgment of C. P., No. 1, Allegheny Co., Dec. T., 1902, No. 646, on verdict for plaintiff, in case of W. G. Kaufman v. Pittsburg, Carnegie and Western R. R. Co.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Proceedings to assess the value of a piece of land taken by the defendant railroad company. Before Collier, J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for 132,700. Plaintiff appealed.

      Errors assigned were (1-4) certain rulings on evidence; (5, 6) to the answers to points; (7) that the charge was unfair to the plaintiff.

      James E. O’Donnell, for appellant.
    The court erred in not permitting the plaintiff to prove, prior to the admission of his letter, that it was written in the course of negotiations looking to a settlement of the damages and that the offer in it was by way of compromise: Spence v. Spence, 4 Watts, 165; Tryon v. Miller, 1 Whart. 11; Orr v. Gas Co., 2 Pa. Superior Ct. 401.
    Declarations against interest are not admissible when made with a view to an adjustment of the difficulties between the parties: Houston v. Railroad Co., 204 Pa. 321.

      W. M. Lindsay, with him A. M. Neeper, for appellee.

      Declarations against interest are always admissible : East Brandywine, etc., Railroad Co. v. Ranck, 78 Pa. 454; Houston v. Railroad Co., 204 Pa. 321.
    December 31, 1904 :
   Opinion by

Mb. Justice Potteb,

This was a proceeding to assess the value of a piece of ground situated on the south side, Pittsburg, fronting about fifty-three feet on Carson street and extending back about 300 feet to the line of the Pittsburg & Lake Erie Railroad.

The ground was taken by the Pittsburg, Carnegie and Western Railroad Company under the right of eminent domain, for railroad purposes. Upon petition of Mr. Kaufman, on October 13, 1902 viewers were appointed, but subsequently, on September 28, 1903, the parties filed an agreement waiving viewers and stipulating that the case be proceeded with pursuant to the Act of May 31, 1895, P. L. 89. A statement and plea were filed, and on December 7, 1903 the case was put upon trial before a jury. The verdict was in favor of the plaintiff for $32,700, upon which judgment was duly entered, and from this judgment the plaintiff appealed.

Upon the trial it was stipulated that the title to the property in suit on the date of the taking was in William G. Kaufman, the plaintiff, in fee ; that the taking occurred on or about September 1,1901; and that plaintiff, upon a verdict being rendered in the case, would convey the whole property in fee. The question tried, therefore, was the value of the fee in the property taken.

Upon the trial each party called a number of expert witnesses who testified as to the value of the land, their estimates, as is usual in such cases, varying widely. The defendants offered in evidence a letter written July 4, 1901, by the plaintiff to J. W. Patterson, a representative of the defendant company, in which he stated that after full consideration he had decided that his original proposition of $600 per foot front was a reasonable price for the property. That the Lake Erie Railroad wanted it and he had offered it to the land agent of that company at' the same price. That $600 a foot was his price, and whichever company wanted it at the figure would get it.

Plaintiff’s counsel objected to the admission of the letter in evidence and offered to prove by the plaintiff “that'the letter was written by him in tbe course of negotiations between liim and. the company for the agreeing upon the amount of damages sustained by him in the appropriation of his property.” This offer was objected to and the objection was sustained, the court saying: “At this time the offer cannot be allowed; at the proper time it may be.” The exclusion of this offer is the ground of the first assignment of error. Subsequently, in rebuttal, the witness testified that prior to the letter he had negotiations with Mr. Patterson, on behalf of the railroad company, about the sale of property, and the letter was written in the course of those negotiations.

The letter was admitted in evidence and its admission is the ground of the second assignment of error. This assignment does not contain a copy of the letter and is therefore not in compliance with rule 31. While the assignment is thus defective and might for that reason be dismissed, yet as the admissibility of the letter of July 4, 1901, as an admission by the plaintiff of the value of his own land, made against his interest, is the main question raised by this appeal, we have not disposed of the case upon a technicality, but have considered the merits of the questions raised by the first and second assignments.

It is to be noted that the plaintiff, when called in rebuttal, failed to show that the letter, exhibit 1, was written by him in the course of negotiations between him and the company for an agreement on the amount of damages sustained in the contemplated appropriation of his property. He showed rather that the negotiations during which the letter was written were in furtherance of a sale of the property and not in settlement of damages. He testified as follows and this was the whole of it upon that point:

“Q. Prior to this letter had you any negotiations with Mr. Patterson on behalf of the railroad company, about the sale of this property? A. Yes, sir. Q. And was this in.the course of that negotiation? A. Yes, sir.”

According to the stipulation filed, the condemnation was not until September 1,1901, while the letter was dated July 4,1901 and it referred to the price named in the letter as having been first named before that time. While the plaintiff had his opportunity to show upon rebuttal, if he could, that the letter was written during the course of negotiations as to the damages for* the appropriation, he clearly failed to do so, and instead showed affirmatively an offer by himself to sell at a specified price, previous to the time of the taking. The very fact that in his letter he stated that a rival company wanted the property, and that he would sell to them if they first accepted his offer, showed that he did not consider that his ground had then been appropriated, but felt free to negotiate for its sale with the first party who would pay his price. The letter itself negatives the claim that the offer contained in it was by way of compromise. In fact there is no suggestion of any compromise whatever about it. Apparently he was restating his conviction that the price before that time fixed by him upon the ground, was reasonable, and he declined to recede therefrom, or make any more favorable offer. Compromise involves the idea of partial surrender or mutual concession. No such idea appears in the letter. Its language is not that of a litigant, or even of one contemplating litigation, and seeking to settle a disputed right. It portrays rather the keen business instinct which sets the desire of one prospective purchaser against that of another. O wners of property are bound by declarations as to value or offers to sell at a specified price, made at or about the time of the taking. But offers made in the course of negotiations for the compromise of a claim for damages, are not to be shown, even as all other offers made by way of compromise of disputed rights are excluded. In a case such as the present the right of the owner to sue for damages accrues when the railroad is located: Davis v. Titusville, etc., Railway Co., 114 Pa. 308. And it is not until that point is reached, that any foundation exists upon which to base a disputed claim. Until that time all negotiations looking toward acquiring the property are upon the basis of purchase and sale, and nothing more. The attitude of the parties in no way differs from that of individuals dealing with each other. The mere fact that the railroad may subsequently exercise its power of eminent domain is of no consequence. Such power may never be used. Until the location is made, there is no appropriation, and until there is, there can be no disputed right to compromise. We see no merit in the first and second assignments of error and they are dismissed.

When the plaintiff was called in rebuttal, he was asked whether he had anything to do with the property, or the management of it, for some time prior to his letter. Objection to this question was sustained and its exclusion is the subject of the third assignment of error. The inquiry was entirely irrelevant and was properly excluded.

Plaintiff’s counsel offered in evidence a letter written by him to Mr. Patterson, dated August 28,1901, withdrawing his offer to sell at @600 per front foot, and then asked plaintiff what had happened to cause him to withdraw the proposition. Objection to this question was sustained and its exclusion is the subject of the fourth assignment of error. Plaintiff had a perfect right to change his mind, and his reason therefor was of no consequence. The court below very properly said in overruling the question: “It is enough to show that the proposition was not accepted, that it was withdrawn, and the circumstances under which the letter was written.”

The fifth and sixth assignments of error are based upon the answers of the court to the defendant’s points, and to a question asked by a juryman. No specific exception was taken to either of these answers and the alleged error is not that the answers were erroneous but .that the court failed to make certain additional statements in connection with the answers, which the plaintiff had not specifically requested should be made. Error cannot be assigned of what was not said by the judge below, without a request so to charge : Burkholder v. Stahl, 58 Pa. 371.

The seventh assignment of error is that the charge as a whole was unfair to the plaintiff in not stating as well that which made in his favor as that which made against him.

An assignment of error to the entire charge of the court, without pointing out a specific error, will not be considered by this court: Drenning v. Wesley, 189 Pa. 160; Fitzpatrick v. Union Traction Co., 206 Pa. 335, 337.

The appellant has printed in his paper-book certain depositions taken in support of a new trial, for the purpose of showing that the defendant company had entered upon plaintiff’s land for the purpose of making a survey, in April, 1901, and also the negotiations between plaintiff and Mr. Patterson. But these depositions were not in evidence on the trial and form no part of the record. But even if the question was properly before us, the preliminary surveys 'do not constitute a location. The act of location of a railroad is the selection and adoption of a line by the board of directors of the company: Johnston v. Callery, 184 Pa. 146. The question involved in the present case was carefully and impartially submitted to the jury, and the plaintiff has had the benefit of the best judgment of that body as to the fair market value of his property.

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


author: Mr. Justice Potter,

text:
    Moorhead v. Scovel, Appellant.

      Deeds—Mental capacity—Lunacy—Evidence—Equity—Bill to set aside deed.

    In the absence of a fraud or undue influence mere weakness of intellect from sickness or old age is no ground for avoiding a deed.
    It is not necessary that a person about to execute a deed should have sufficient mental capacity to take into connected view the whole of his property. If he understands in detail all his separate items of property and chooses with understanding and reason between one disposition and another, it is sufficient.
    Mental capacity to execute a deed does not include the ability to understand the legal effect which lawyers may impart to the words employed. If the nature and effect of the instrument as a conveyance of property is understood, it is sufficient.
    An opinion as to mental incapacity to make a deed, not based upon sufficient facts, or based upon an erroneous conception as to what in law constitutes such mental incapacity, must have but little weight, and must necessarily be disregarded where the evidence shows the presence of those facts and conditions which accompany and constitute mental capacity.
    In a proceeding to set aside the deed of an unmarried elderly woman without near kin dependent upon her after her death, on the ground of mental incapacity, it appeared, that the deed was executed in favor of a charity in which she had long been interested. The allegation of want of capacity was based upon the opinions of several witnesses, three of whom were physicians, who could not, however, say that they saw her within a month from the time when the deed was executed. Fifteen or sixteen witnesses, many of whom had been closely associated with her for years, and had the fullest opportunity of observing her both day and night for days and weeks preceding, as well as at the time of the execution of the deed, testified particularly and in detail to the soundness of her mind, the clearness of her memory, and her ability to transact business of any kind when she executed the deed. Held, that there was not sufficient proof of mental incapacity to set aside the deed.

      Argued Oct. 31,1904.
    Appeal, Nos. 174 and 177, Oct. T., 1904, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1904, No. 635, on bill in equity in case of William J. Moorhead et al. and the Fidelity Title & Trust Company of Pittsburg, administrator of Mary E. Moorhead, deceased, v. Elizabeth J. Scovel, individually and as Trustee, and the Safe Deposit & Trust Company of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Bill in equity to set aside a deed. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree in favor of the complainants.

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

      John S. Ferguson, with him W. J. Stevenson, for appellant.

      Thomas Patterson of Patterson, Sterrett £ Aeheson, for appellee.
    December 31, 1904:
   Opinion by

Mr. Justice Potter,

The first seven findings of fact in this case, as stated by the learned judge of the court of common pleas, are in accordance with the undisputed testimony. But we are unable to concur with him as to the remaining three findings, the eighth, ninth and tenth. Our examination of the testimony has led us to an entirely different conclusion as to these findings of fact, and, therefore, in consequence to an entirely different conclusion of law, from that reached by the court below, based upon the findings of fact as a whole. For instance, in the eighth, it is found as a fact that after August 1, 1903, Miss Moorhead’s “ condition became such as to render impossible any extended or connected train of thought, or the discussion and determination of matters of importance at all complicated in their nature, or requiring thought and recollection.” “ After that date, August 5, her ideas were irregular and she was not capable of continuous or concentrated thought, and entirely unable to transact business and especially to dispose of property.” “ During almost the entire time between the latter part of August and her death she was in a semi-comatose condition.”

These findings ignore the direct and positive evidence of some fifteen witnesses called by the defendant, who testified to the contrary, and even go beyond the testimony of the three physicians upon whose opinions the complainants rested their case.

The bill was filed for the purpose of having declared void a deed executed by Mary E. Moorhead, upon September 16, 1903. The case for plaintiffs was based entirely upon the allegation that owing to her weak mental and physical condition she was not competent either on September 15 or 16, 1903, to make a deed or any binding contract whatever. No charge of exercising undue influence over her is made against anyone in the bill, nor is there any proof that any person sought unduly to influence or control Miss Moorhead, in the execution of the deed in question. No allegation is made in the bill that Miss Moorhead was insane, or that disease had destroyed her mental capacity. It was the degree of her capacity only which was questioned. The charge was that she had not at the time sufficient capacity to understand the nature of the act she was doing when she executed the deed.

None of the witnesses for plaintiffs were present either on September 15, when the instructions for the preparation of the deed were given by Miss Moorhead to her attorney, or upon the next day, when it was executed and acknowledged. From such general knowledge and observation of her mental and physical condition, as could be gathered at occasional visits, they were permitted to express opinions that Miss Moorhead lacked a proper understanding of what she was doing when she executed the conveyance. Such testimony as this is entitled to but little weight as against the positive evidence of those who were in constant attendance upon her day and night, and who knew from direct observation what her condition was when the deed was made and what it was for days and weeks afterwards. It will be remembered that Miss Moorhead lived some six weeks after the déed was executed.

The evidence to sustain the plaintiffs’ contention consisted' mainly of the opinions of three physicians. One of these, Doctor Murdoch, testified in substance that he saw deceased about once in every two weeks during her illness. But he could not fix any dates. He said that she showed lack of decision, loss of memory and lack of judgment. She was uncertain as to whether she ought to have the services of a physician, because she had put herself in the hands of the Lord. He said she was drowsy and stupid a great deal of the time. In asking questions she confused the aunt of witness with his mother. While this witness could not remember the dates upon which he saw Miss Moorhead, yet in his opinion she was so enfeebled on September 15, 1903, that she could not comprehend the details of the deed.

Doctor J. H. Anderson saw Miss Moorhead upon an average of once in every three to five days during her illness, except from August 5 to August 22. Saw her upon September 11 and September 15 and then upon September 21. In his opinion she was' not in condition upon September 15 to understand the full import of the deed. Upon cross-examination the witness admitted that it was quite likely he had said in September that it was remarkable how clear her mind was.

Doctor Donaldson only attended Miss Moorhead during the vacation of Doctor Anderson, from August 5 to August 22. During that period, in his opinion she was not in mental condition to comprehend an act such as the execution of a deed. It was while Doctor Donaldson was attending her that deceased suffered the most severe attack of her illness. But she after-wards rallied. This witness knew nothing, of course, as to her condition in fact, at the time of the execution of the deed.

George B. Logan, another witness, saw deceased on the last Saturday in August. He said she was apparently a woman of sound, clear mind, but by reason of her sickness he would not consider her then in condition to decide an important matter. His opinion was based on her weak physical condition. He of course did not know her mental condition on September 15 or 16.

The physicians were not sent for by Miss Moorhead, but Doctor Murdoch, who was her nephew, came of his own accord, and he instructed Doctor Anderson to visit her. The visits were made only at considerable intervals of time and seem to have been quite as much of a social as of a professional character.

We doubt very much if the knowledge gained by his occasional visits of this character, constituted a sufficient basis upon which to express any opinion as to Miss Moorhead’s mental capacity at the time when the deed was executed; the physicians not being then present and not knowing as a matter of fact what her mental condition then was. It was the mental capacity of Miss Moorhead upon September 15 and 16 and upon the dates when the assignments were executed, which was in question. Evidence as to her condition at other times was only important as it shed light upon her condition on those dates.

The facts given in evidence by the physicians as to her physical weakness, when they saw her, do not seem to us to warrant the inference of imbecility of mind, either at those times or at any other.

There is no evidence that any of the medical witnesses attempted in any way, purposely, to test the mental capacity of Miss Moorhead. No doubt she was physically weak, and the disease may have weakened her mental perceptions at certain times. But the authorities are ample, that in the absence of fraud or undue influence, mere weakness of intellect, resulting from sickness or old age, is no ground for avoiding a deed.

Judging from the testimony, it is by no means clear that these witnesses had a correct conception of what in law would constitute mental capacity. For example, Doctor Anderson admitted upon cross-examination that she would probably know about her separate pieces of property in detail, if asked about them one at a time, but thought she could not take a connected view of the whole. But to require her to do this was going beyond the legal standard. No such comprehensive mental grasp is required as the test of capacity to make a will or a deed. Speaking of testamentary capacity in McMasters v. Blair, 29 Pa. 298, this court said: “ To understand in detail all that he is about is quite sufficient.” And in Daniel v. Daniel, 89 Pa. 191, it was said that it was not necessary to collect in one review, knowledge of the property possessed, understanding of the disposition to be made of it, and of the persons and objects to whom it was to go. “ It is not necessary he should collect all these in one review. If he understands in detail all he is about and chooses with understanding and reason between one disposition and another it is sufficient.”

The only question before the court was whether Miss Moor-head had sufficient capacity to understand in a reasonable manner, the nature of the act she was doing, and the nature and effect of the deed she was executing. Yet an entirely different inquiry was presented for the opinion of these witnesses in the form of the question put by plaintiffs’ counsel to Doctor Anderson as follows: “Q. Mr. Ferguson has asked you in detail as to her pieces of property, and asked you whether or not Miss Moorhead knew she had this piece or that piece, to which you have answered perhaps she did. I ask you again whether, taking this instrument in its entirety, with all various properties, covering some two pages, and its directions, covering some two pages more, in your opinion was Miss Moorhead able in one mental act to comprehend the meaning of that,instrument? And in the question submitted to Doctor Murdoch, “ I show you a copy of a deed dated September 15, and I ask you whether in your opinion at the time of the date of that deed Miss Moorhead was able to xmderstand and comprehendingly act upon an instrument of that kind?”

In each of these questions there was a shifting of the inquiry from the mental capacity to comprehend the effect of an ordinary business transaction, to her ability to understand the form and arrangement and technical language of the instrument of conveyance. Every business man knows what it means to make a deed, for his property, but what does he know of the formal parts of the instrument ? When he is said to understand a deed, it is never meant that he comprehends the legal effect which lawyers may impart to the words employed. Mental capacity to execute a deed does not include any such ability as that. If the nature and effect of the instrument as a conveyance of property is understood it is sufficient. If Miss Moorhead understood the design and effect of her act in executing the papers it was all that was required. The facts attending the preparation of the deed, by her own attorney, after full discussion and explanation, and in pursuance of her desires as expressed to him, seem not to have been considered or taken into acount by the medical men in expressing their opinions as to her comprehension of each meaning and effect. Yet these were very important' elements. Her knowledge of the instrument probably came to her largely through the reading and explanation of it toiler by her counsel; and not from personal examination or study of it. Her ability to intelligently convey property was not to be gauged by her understanding of legal verbiage, or the technical details of description or otherwise as set forth in the deed.

As was stated in an opinion in Klein’s Estate, 207 Pa. 191, approved by this court, “an opinion as to mental testamentary incapacity not based upon sufficient facts, or based upon an erroneous conception as to what in law constitutes testamentary incapacity, must have but little weight and must necessarily be disregarded where the evidence shows the presence of those facts and conditions which accompany and constitute mental capacity.”

Turning now to the testimony on behalf of the defendants, we have fifteen or sixteen witnesses, many of whom had been closely associated with Miss Moorhead for years, and had the fullest opportunity of observing her both day and night, for days and weeks preceding, as well as at the time of the execution of the papers in question. They recount her words and her conduct with great particularity; all believe her to have been of sound mind and clear memory, able to transact business of any kind when she executed the deed. We are unable to understand how such testimony can be set aside, when every witness appears to have been respectable and no attack is made upon the credibility of any of them. We quote the substance of the testimony of a few of them.

Rev. C. W. Ferguson, a minister of the gospel, associated with the work of Bethany Home: He made the first suggestion of the deed at deceased’s request. Saw deceased frequently throughout her illness and talked with her. Was present when the deed was executed. Deceased knew what she was doing and her mind was perfectly clear. She understood the transaction fully. Remarkable thing in her sickness was that after a sinking spell she would rally so quickly and with so clear a mind.

W. J. Stevenson, the lawyer who drew the deed, had been consulted professionally by deceased for several years: Went out to see her on September 15, prepared pencil draft of deed and read it to Miss Moorhead and explained it to see that it met her wishes. Discussed particularly the insertion of the trust clause, also other parts. Had the deed typewritten and took it back for execution next day. Explained the deed fully to her both before and after it was finally written, and read the essential parts. She showed no listlessness or inattention. Took great interest in the transaction, and discussed certain features quite fully. She possessed mental capacity to understand the nature of the act in which she was engaged. She was much stronger on the 16th than on the day before. After I had read the deed to her I asked her if it was all right, and she said that it was. I asked if she would execute it, and she said “ Yes.” I said she could make her mark. “ Oh, no,” she said, “ I can write—” and I told her that perhaps she had better not sit up to write her name, that the mark would be legal. I understood from the nature of her disease it would be better for her not to sit up.

Flora C. Sweet: Had lived at Bethany ten years. Saw deceased daily up to the last day of September. Conversed with her constantly. On September 15 and 16 she was of sound mind and able to execute business of any kind.

Minnie Drinkard, a nurse: Lived at Bethany eight years. She saw deceased daily; says Miss Moorhead was of sound mind until November 1, at least; gave instances of her mental capacity.

Mary E. Rawson, also a nurse : Attended deceased in September. No question about her mind being perfectly straight and natural. Had long conversation with her on September 16, which witness gave in detail.

Fannie D. Nelson : Saw deceased daily. In September had conversation with her. She was weak in body but her mind was clear; ready to take in all that was said and to show interest. She had always been a woman of clear mind and good business capacity. In September her mind was as sound as it had ever been. She was perfectly able to appreciate and understand the act of making the deed.

Elmira T. Moreland, a friend of deceased: Saw her September 20 and latter part of October. Showed no lack of interest or attention. "Was weak physically, but showed brightness, clearness and grasp of things all around. Was as clear in mind as she ever was in the eighteen years witness knew her.

Violet Edmunds : Lived at Bethany seventeen years. Gave instances of deceased’s mental capacity in September as she read from a book in dialect.

Lillie Strickland: Was a visitor at Bethany from July to November. Saw deceased a dozen times. Had conversations with her on September 20 and later. Detailed same. Miss Moorhead’s mind was very clear, always when witness saw her. Regarded her as perfectly capable to comprehend the transfer of real estate and bonds.

There was much more evidence to the same effect.

Referring again to the eighth finding of fact it is stated: “On September 9 and 10 Miss Moorhead experienced two severe hemorrhages, which rendered her condition so critical that she was believed to be dying, and her relatives were sent for. These were followed by another hemorrhage on September 15, from the effects of which she could only be aroused with difficulty.” We cannot find any evidence, on either side, to sustain these findings as they stand. The only testimony we find on the subject is that of Miss Minnie Drinkard, who said that Miss Moorhead had a hemorrhage about September 10 or 11. Witness’ recollection was that she had none on September 15, 16 or 17. The occasion when her family were sent for was in August, more than a month before the deed was made. Both sides agree that after the severe attack in August there was a great improvement in her condition.

In the next finding of fact, also numbered eight by mistake, it is found that “ these papers were suggested by Miss Scovel and Mr. Ferguson, and their preparation supervised by them, and their execution by Miss Moorhead made at a time when she was unable to fully comprehend their substance and effect without independent or disinterested advice.”

The evidence is uncontradicted that the deed of September 15 was not suggested by Miss Scovel, but that the suggestion was made by Mr. Ferguson in answer to Miss Moorhead’s expressed desire to carry out in her lifetime the provisions for the work at Bethany Home, which she had previously arranged for in her will. His suggestion was that she should carry out her will in that way, that is, by making a deed. Miss Scovel first learned from Miss Moorhead herself of her intention to make the conveyance. It is also the fact that Miss Moorhead had the advice of her attorney, who went over the draft of the deed with her and discussed its terms at length before having it typewritten and read it to her again before its execution. The evidence as to this fact is directly opposed also to the last finding of fact, by the trial judge, in that it appeared clearly from the evidence that she had the benefit of the advice of her counsel before, and at the time of the execution of all the papers in question.

As to the conclusions of law, we are not able to draw from the evidence any justification of the statement that “Miss Moorhead’s general condition, at the time of executing the papers of September 15 and 28, and October 30, appears to have been such as to preclude her from intelligently originating, understanding or executing the same.” As we have pointed out, the weight of the evidence is, in our opinion, overwhelmingly to the contrary. It may bo admitted that the relations between Miss Moorhead and Miss Scovel were confidential. That Miss Scovel was her trusted friend and close companion. They had worked together for long years, in a cause that was dear to the hearts of both, and which constituted Miss Moorhead’s chief interest in life. It is not charged in the bill by plaintiffs nor is there a word in the testimony intimating that Miss Scovel ever exercised any influence over Miss Moorhead which in the legal sense of the word could be termed “undue.” Whatever burden of disproving undue influence was placed upon Miss Scovel by the mere fact of the existence of the confidential relation has, as we regard the evidence, been completely met. In addition to her own denial, Miss Scovel has shown by disinterested witnesses that the deed and assignments were merely the carrying out of an intention formed by Miss Moorhead long before, expressed frequently, and embodied, together with her reasons, in her will, which was written with her own hand and executed March 3, 1902.

As we have already said, some fifteen witnesses who saw her more or less frequently during her last illness, some almost daily, testified that at the time the papers were executed her mind was perfectly clear, and that she was able to understand what she was doing and what the results of her acts would be. She had formed, years before, the purpose which the conveyances cariied into effect. They were in accord with the efforts to -which, she had devoted more than fifteen years of her life. Unmarried, with no one of her father’s family dependent upon her, or in need, what could be more reasonable than that she should devote the greater part of her wealth to the continuance of the religious and charitable work which she had founded, and to which while living she had consecrated herself and her means ? The Bethany Home was the child of her affections. Her reasons for giving to Miss Scovel the absolute control of the property left to carry on the work are fully set forth in her will which was offered in evidence. Miss Scovel testifies that she had no part in the preparation of the will, and had no knowledge of its contents until Miss Moorhead told her of it long after it was executed.

As we have considered only the questions arising upon the merits of this case, we do not deem it necessary to take up the assignments of error in detail. The twenty-first and twenty-second assignments are sustained, and the decree of the court below is reversed. It is now ordered, adjudged and decreed that the bill be dismissed and that the injunction be dissolved and that the costs of the proceedings in the court below, and upon this appeal, be paid by the appellees who were complainants in the bill as originally filed in this case.


author: Mr. Justice Thompson,

text:
    Dinan, Appellant, v. Supreme Council of the Catholic Mutual Benefit Association.

      Trial—Practice, C. P.—Evidence—Credibility of witnesses—Inferences of fact—Province of court and jury—Beneficial associations.

    If the evidence is direct, certain, presenting no question of credibility, and leaving no ground for inconsistent inferences of fact, the court may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends upon the credibility of witnesses and if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up the doubts, settle questions of credibility, draw the correct inferences and give final shape to the findings of fact.
    It may well be in a case that the weight of the evidence may be sufficient to justify a trial judge in setting aside successive verdicts, yet it does not follow that he is warranted in taking from the jury in the first instance the determination of a question of fact depending upon the credibility of witnesses.

      In an action against a beneficial association to recover a death benefit, where the defense is that the member was over fifty years of age when he was initiated, which was beyond the age limit permitted by the constitution of the association, and the evidence on the subject is conflicting and largely turns upon the credibility of the witnesses, the case must be submitted to the jury for determination.
    Argued Nov. 1, 1904.
    Appeal, No. 194, Oct. T., 1904, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., March Term, 1900, No. 213, on verdict for defendant in case of Andrew A. Dinan and Mary G. Dinan, his wife, v. Supreme Council of the Catholic Mutual Benefit Association.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Assumpsit to recover a death benefit. Before Collier, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.
    <7. W. Williams, with him A. J. Edwards, for appellants.
    The case was for the jury: Holland v. Kindregan, 155 Pa. 156; Piedmon, etc., Life Ins. Co. v. Ewing, 92 U. S. 378; Dinan v. Mut. Ben. Assoc., 201 Pa. 363 ; Corcoran v. Life Ins. Co., 183 Pa. 443.

      A. B. Reid, with him A. V. D. Watterson, for appellee.
    If the evidence is direct, certain, presenting no question of credibility and having no sufficient ground for inconsistent inferences of fact the court may be asked to instruct the jury as to its legal effect: Lonzer v. Lehigh V. R. R. Co., 196 Pa. 610 ; Wells v. Insurance Co., 191 Pa. 207; Holland v. Kindregan, 155 Pa. 156 ; Hoag & Alger v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Raby v. Cell, 85 Pa. 80.
    December 31, 1904:
   Opinion by

Mr. Justice Thompson,

This action is based upon a beneficiary certificate issued to the father of Mary G. Dinan, one of the appellants, and in her favor, by the appellee, a mutual beneficial association. The requirements under its constitution were that no one above the age of fifty years should be entitled to a certificate of membership. Appellee’s contention was that the appellants were not entitled to recover because at the time of the application and initiation the applicant, since deceased, was over fifty years of age and therefore was not entitled to initiation and membership, while that of appellants was that he was at the time within the limitation of the age required. The question was distinctively one of fact and as the learned trial judge gave binding instructions for the appellee, such instruction is assigned for error for the reason that the facts were so disputed that the appellants were entitled to have a jury pass upon them. Whatever the weight of the evidence may be and whatever the action of the trial judge might be upon a motion for a new trial, if there be a substantial controversy as to the facts and if its determination depends upon the credibility of witnesses, the question of appellee’s liability became one for the jury and appellants were entitled to have it submitted to the jury for its determination.

The application of appellant’s father for membership was acted upon by appellee July 2,1891, and his initiation in pursuance thereof took place in the following August. Prima facie the beneficiary certificate established that the age of the applicant at the time of the application was forty-eight years and further proof was not upon appellants to show affirmatively that such was the fact.

Such the ease appellee, the defendant below, undertook to show that at the date of his application and initiation, the decedent was upwards of fifty years of age and, therefore, under the requirements of the association not entitled to membership and the certificate therefor. In support of this contention the appellee called the priest of St. Paul’s cathedral, who produced the record of that church showing the marriage of one Charles Coll and Ann Quinn, on date of September 28, 1855, and that the marriage was performed by the Rev. Thomas Malone. James White, a witness called on behalf of the appellee to identify the parties represented in the church register as then married, was asked whether he knew Charles Coll and whether this Charles Coll thus married was the father of the appellant and he stated that he thought so to the best of his knowledge and added: “ I was present at the marriage but I do not know that there was a wedding.” When asked whether the marriage ceremony took place at the cathedral he answered that it was performed there and that he (Coll) went to Father Garland’s church. Upon cross-examination he was asked whether upon a former trial he had not testified that he did not know that this Coll was appellant’s father and whether he did not know appellant and whether he replied “ I don’t know that. I don’t know Mrs. Dinan (tbe appellant).” He was also asked whether or not the marriage took place at the cathedral and whether or not at a former trial he had testified that the Charles referred to was not married in St. Patrick’s church by Father Garland, or rather that he was married at Father Garland’s house and whether his reply was that that was his understanding; and on the second trial he testified that he was not any more positive as to where the marriage took place than what he heard as a witness on the trial, and when squarely confronted on that trial with the question as to the fact of the marriage in the cathedral his reply was: “ I would not swear to that; 1 can’t mind.” The marriage register refers to Charles Coll and the certificate in this case is in the name of Charles B. Coll. It is manifest that the cross-examination fairly raised a question as to the credibility of the witness and if so it became one for the jury.

A brother of appellant’s father, a witness produced on behalf of the appellee, testified that he was born in 1841 and that his brother Charles was older. Upon cross-examination he was asked: “ Q. So at the second trial preceding this you were uncertain as to whether Hugh was older than Charles or not? At the trial immediately preceding you were absolutely certain, but at the second trial preceding this you were uncertain as you now are, whether Hugh was older or younger than Charles ? At the trial immediately preceding, you were positive that Hugh was younger than Charles ? ” And his answer was: “ Well it was my impression at the time that he was. That was a long time ago.” With the inconsistencies of his answer and with the uncertainty as to exactness of his memory, his credibility also became a question for the determination of the jury. The appellee undertook to establish affirmatively that the apellant’s father was over fifty years of age when he made his application and was initiated and the proof of this fact depended substantially upon the credibility of the witnesses. As such was the case the question of fact became one peculiarly within the province of the jury and the learned trial judge erred in giving binding instructions.

In the case of Holland v. Kindregan, 155 Pa. 156, it was said in a per curiam: “ It does not follow that because the evidence on one side may be overwhelming in the opinion of the trial judge, that the case can be withdrawn from the jury. If there is a conflict of evidence it must go to the jury, unless the evidence on one side amount but to a scintilla.”

In the case of Corcoran v. Mutual Life Insurance Company, 183 Pa. 443, Mr. Justice Williams says: “The rule that separates the province of the court from that of the jury is pretty well defined. If the evidence is direct, certain, presenting no question of credibility, and leaving no sufficient ground for inconsistent inferences of fact, the court .may be asked to instruct the jury as to its legal effect. But if it is uncertain, if it depends on the credibility of witnesses and if there is room for drawing from it different inferences of fact, it must go to the jury. They must clear up the doubts, settle questions of credibility, draw the correct inferences and give final shape to the findings of fact.”

In the case of Howard Express Company v. Wile, 64 Pa. 201, Mr. Justice Sharswood says: “If a verdict is contrary to the charge of the court on a question of law it must be set aside whether it be second or the second hundredth. Where evidence on both sides is to be weighed, so as to determine on which side the scales incline, the jury is the appropriate tribunal: ” Grabs v. Lynch, 20 W. N. C. 376; Harlow & Co. v. Homestead Bor. 194 Pa. 57.

It may well be in a case that the weight of the evidence may be sufficient to justify a trial judge in setting aside successive verdicts yet it does not follow that he is warranted in taking from the jury in the first instance the determination of a question of fact depending upon the credibility of witnesses.

The first and' second assignments of error are sustained, the judgment is reversed and a venire de novo is awarded. „


author: Mb. Justice Fell,

text:
    Tucker, Appellant, v. DuPuy.

      Landlord and tenant—Quiet enjoyment—Breach of covenant.

    The covenant of quiet enjoyment in a lease, whether express or implied, only means that the tenant shall not be evicted or disturbed by good title, in the possession of demised premises or some part thereof. It does not extend to the wrongful act of a stranger, or the lawful act of the landlord in making a different use of his property not demised.
    In an action to recover for breach of an implied covenant of quiet enjoyment, it appeared that plaintiffs leased rooms on the second floor of a building to be used in the practice of medicine. There was no express agreement to rent the rest of the building for oflices onljq and none could be implied from the lease, or from the relation and duties of the parties. During the running of the plaintiffs’ lease defendant purchased the building and leased it for a term of years to a hotel company with knowledge that the building would be altered to adapt it to the use of a hotel with a drinking bar. While alterations wore being made the plaintiffs' business was interfered with by the operations of those engaged in the reconstruction of the building, but there was no charge of an actual entry upon their rooms, or an intention to oust them. After the temporary interferences were at an end, plaintiffs withdrew from possession because their oflices had become less suitable for their use. Held, that there was no error in sustaining a demurrer to the statement.
    Argued Nov. 1, 1904.
    Appeal, No. 185, Oct. T., 1904, by plaintiffs, from judgment of C. P. No. 8, Allegheny Co., Aug. T., 1904, No. 730, on demurrer to statement in case of John A. Tucker and William Byers, trading as Byers & Tucker v. Amy H. DuPuy.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit for breach of an implied covenant of quiet enjoyment.
    Demurrer to statement. Before Kennedy, P. J.
    The material averments of the statement of claim are set forth in the opinion of the Supreme Court.

      Error assigned was in sustaining the demurrer.

      Chas. A. O’Brien, with him Chas. W. Ashley, for appellant.
    Any interference with the tenant’s beneficial enjoyment of the demised premises amounts to an eviction in law: Doran v. Chase, 2 W. N. C. 609 ; Gallagher Bros. v. Burke, 13 Pa. Superior Ct. 244; Hoeveler v. Fleming, 91 Pa. 822; Taylor’s Landlord & Tenant, sec. 309; Ross v. Dysart, 33 Pa. 452; Pugh v. Denny, 17 Legal Int. 149; Duff v. Hart, 16 N. Y. Supp. 163; Edmison v. Lowry, 3 So. Dak. 77 (52 N. W. Repr. 583); Lay v. Bennett, 4 Colo. App. 252 (35 Pac. Repr. 748) ; Rowbotham v. Pearce, 5 Houst. 135; Brande v. Grace, 154 Mass. 210 (31 N. E. Repr. 633) ; Granbenhorst v. Nicodemus, 42 Md. 236 ; Denison v. Ford, 7 Daly, 384 ; Royce v. Guggenheim, 106 Mass. 201; Skally v. Shute, 132 Mass. 367 ; Peck v. Hiler, 14 How. Prac. 155 ; Bank v. Newton, 57 How. Prac. 152; Ins. Co. v. Myers, 4 Lanc. Law Rev. 151; Warwick v. Wah Lee & Co., 10 Phila. 160 ; Rogers v. Ostrom, 35 Barbour, 523; Sully v. Schmitt, 147 N. Y. 248 (41 N. E. Repr. 514).

      J. S. Ferguson, with him F. G. Ferguson, for appellee.
    There is nothing in the lease which prevents the landlord from leasing the premises for any purpose which he might deem advantageous to him: Bryden v. Northrup, 58 Ill. App. 233; Postal Tel. Co. v. Western Union Tel. Co., 155 Ill. 335 (40 N. E. Repr. 587).
    Any entry by the landlord of the premises demised against the will or wishes of the tenant is not an eviction which will suspend the rent, but if the landlord ejects, expels, evicts or turns out the tenant and prevents his enjoyment of the premises for which the rent is payable, the rent will be suspended : Bennet v. Bittle, 4 Rawle, 339; Noble v. Warren, 38 Pa. 340.
    The express or implied covenant for quiet enjoyment referred only to an eviction by claim of title, and not to a mere trespass : Edgerton v. Page, 1 Hilt, 320; Coddington v. Dunham, 45 How. Pr. 40.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

This appeal is from an order sustaining a demurrer to a statement of claim in an action by tenants to recover for breach of an implied covenant of quiet enjoyment of the premises demised. It is set out in the statement that the plaintiffs leased for three years rooms on the second floor of a building known and used exclusively as an office building, except the first floor which was used as a storeroom. During the running of this lease the defendant purchased the building and leased it for ten years to a hotel company with knowledge that the building would be altered to adapt it to the use of a hotel and that a hotel for the exclusive use of men, with a bar, would be conducted therein. While alterations were being made the plaintiffs’ business, the practice of medicine, was interfered with and they were deprived of the full use and enjoyment of their rooms by various acts of those engaged in the reconstruction of the building and by the use of the hallway and stairways by workmen. After the hotel was opened idlers gathered at certain hours on the street in front of it and made it undesirable and unfit as a location for the plaintiffs’ business, by reason whereof they were forced to leave the premises.

There is no charge of an actual entry upon the rooms leased by the plaintiffs nor of any disturbance of their possession by the defendant, nor of an intention on her part to oust them from the possession of their offices. They were subjected to annoyances incident to the making of changes in the interior of the building and perhaps suffered from trespass by the hotel company or its agents. After this temporary interference was at an end they voluntarily withdrew from possession because their offices have become less suitable for their use. All that is charged against the defendant is that she leased the property for hotel purposes. There was no express agreement to rent the rest of the building for offices only, and none can be implied from the lease or from the relation and duties of the parties. “ The covenant of quiet enjoyment, whether expressed or implied, only means that the tenant shall not be evicted or disturbed by good title in the possession of demised premises or some part thereof: ” Moore v. Weber, 71 Pa. 429. It does not extend to the wrongful act of a stranger or the lawful act of the landlord in making a different use of his property not demised.

The order of the court in sustaining the demurrer and entering judgment for the defendant is affirmed.