text:
    Watson v. McManus, Appellant.

      Assignment — Equitable assignment — Municipality—Municipal contract — Injunction—Equity.
    On a bill in equity against a municipal contractor and a city for an injunction to prevent payment by the city to the contractor of moneys due under contracts, it appeared that the contractor had assigned to the plaintiff all his right, title and interest to all moneys, warrants and payments of any kind thereafter receivable from the city on account of any contracts between the contractor and the city. The assignment further provided that said sums of money should be held by the city for the use of and as belonging to plaintiff, and the plaintiff was constituted irrevocably attorney to collect the same. The city had notice of the assignment and made no objection to it. Thereafter the contractor recovered a large judgment against the city. After this an equity proceeding was instituted between the plaintiff and the contractor for an accounting. Held, that the plaintiff was entitled to an injunction to restrain the city from making any payment to the contractor until the suit for an accounting was determined, and a further order made.
    Argued Jan. 10, 1908.
    Appeal, No. 220 Jan. T., 1907, by defendants, from decree of C. P. No. 1, Phila. Co., Dec. T., 1903, No. 4,416, on bill in equity in case of James Y. Watson v. Michael McManus, the City of Philadelphia and John M. Walton, Controller of the City of Philadelphia.'
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Beitler, J.
    From the record it appeared that on January 1,1897, Michael McManus granted, assigned, transferred and set over unto James Y. Watson all his right, title and interest, claim and demand in and to all “ moneys, bills, warrants and payments of any kind whatsoever which now are or hereafter to be receivable, payable or due to me from'the city of Philadelphia, on account of or by reason of any contract or contracts I now have or may hereafter have with the said city of Philadelphia during the year 1897.
    “ The intention of this assignment being that said sums of money and all Bills, Warrants and Payments as aforesaid Due and Payable or which may hereafter become Due and Payable by said City to me on account of said Contracts shall be held by said City for the use, Benefit and Disposal of and as Belonging to the said James V. Watson.” James Y. Watson was irrevocably constituted attorney to collect said moneys.
    At December Term, 1898, No. 547, McManus recovered a judgment against the city of Philadelphia for $29,842.67, being moneys due under contract dated May 7, 1897. On July 17, 1899, McManus filed a bill against Watson in C. P. No. 4, Philadelphia County, June Term, 1899, No. 406, praying for an accounting. Watson filed a cross bill. The case was proceeded with so far that McManus’ bill was dismissed, and the litigation continued under the cross bill. On February 20,1904, Watson filed the present bill against McManus praying for an injunction to restrain McManus from collecting and the city of Philadelphia from paying the judgment which McManus had secured against the city, pending the determination of the suit for accounting;
    During the year 1897, McManus had on hand four contracts with the city; one known as the Queen lane coping contract, one as the Lincoln avenue grading contract and one as the School House contract.
    The court found other facts to be as follows:
    Finally the schoolhouse was finished and the city was ready to make the final payment (less percentage reserved under the contract exceeding $3,300), and the plaintiff upon McManus’ request gave him the paper, bearing date June 20, 1898, in which he agreed that “ the bills stated to be due for materials furnished and wages due on schoolhouse at 13th and Porter streets are to be paid out of final warrants and reserve for the completion of said schoolhouse and the Queen lane coping and the Lincoln avenue grading contracts, said warrants to be paid to James Y. Watson and he to furnish money from them to Michael McManus sufficient for the above specified purposes.”
    The plaintiff agreed to advance $6,500 to finish the schoolhouse. In fact, he advanced $7,350. Tie received the warrant for $20,941.50, and repaid himself the $7,350. The balance he paid on schoolhouse bills, but there was still about $10,700 unpaid. When the parties to whom these moneys were owing called on Mr. Watson, he showed them the paper of June and told them that when he got the “reserve” on the schoolhouse contract and the balances due on the other contracts, he would settle their bills. •
    In November a warrant was drawn for grading. This was lodged in the controller’s office for counter-signature. An order for its delivery to McManus was given him by the department of education. This McManus refused to let Watson have, unless he would agree to pay therefrom all the schoolhouse bills. This plaintiff refused to do, but reiterated his intention of carrying out his contract to pay out of the aggregate of moneys to be received by him all the debts on all the contracts. During a part of the grading work he had been paying all the bills, and he wanted reimbursement from the warrant for his outlays for these payments for work done on the grading. Plaintiff finally agreed, in order to induce Mc-Manus to give him the- order for the warrant, that he would pay half of it to the claims on the schoolhouse. McManus refused to do this, and thereafter neither he nor Mr. Watson got any more warrants on account of grading or the other two contracts.
    The city controller had the Lincoln avenue warrant, but he likewise had McManus’ assignment of all warrants and payments coming due to him to Mr. Watson. The city controller could not pay to McManus and would not pay to plaintiff until the order for the warrant indorsed by McManus was turned into his office.
    McManus contends that Watson should have paid every debt due on the schoolhouse when the schoolhouse was finished. Such, however, was not Mr. Watson’s agreement. It is plain and cannot be misunderstood that Mr. Watson therein agreed that “ the bills stated to be due for materials furnished and wages due on schoolhouse at Thirteenth and Porter streets are to be paid out of final warrants and reserve for the completion of said schoolhouse and the Queen Lane Coping and the Lincoln avenue grading contracts, said warrants to be paid to ■James Y. Watson and he to furnish money from them to Michael McManus sufficient for the above specified purposes.”
    ■ ■ Mr. Watson testified that he has always stood ready and willing and is yet ready and willing to carry out this agreement. McManus testified that Watson said he would not carry out his agreement. I had the witnesses before me. I heard their testimony. I noted their bearing and I have no hesitancy in stating that where McManus contradicts Watson, I give entire credence to the latter and disbelieve the former. I therefore have no hesitation in finding that at the time Mc-Manus refused to let Watson have the warrant due from the •city, his refusal was unjustified, and Mr. Watson had nothing to indicate an intention not to carry out his agreement. He • was entitled to that warrant. His offer to pay $5,000 therefrom to the creditors of McManus on the schoolhouse contract was more than his agreement required him to do. Had McManus acceded to it, his creditors would have received that $5,000 and. subsequently the §3,300 “ reserve ” on the schoolhouse contract. These two sums would have nearly paid all that was owing. McManus’ lack of honesty and good faith in the matter is sho.wn in this, that he subsequently collected the reserve on the schoolhouse contract by suit against the city and put it all in his pocket, paying not a cent thereof to his creditors or to his surety, but leaving the trust company to pay all the schoolhouse creditors. Another evidence of ■his lack of honest intent is the fact that at the time Mr. Watson agreed to take the warrant then due on the Lincoln avenue contract and pay therefrom $5,000 to the creditors on the schoolhouse, McManus had a suit pending to collect the balance due on the grading contract from the city, and in that suit, in spite of the fact that the contract expressly limited ■the total payments to him to $26,000, he was claiming (and his claim has been sustained by the Supreme Court) a very much larger sum. The fact that the suit was pending, or that •he claimed some $15,000 more than the warrant, he did not mention. . . , •
    There- was then, I find, no justification in fact or in law for McManus’ refusal to let Mr. Watson, have the warrant. The real reason of his refusal is apparent from, the testimony in the grading contract suit. Had he turned over the order- to Mr. Watson for the warrant, he would have had no standing to claim from the city a sum almost three times the face of the warrant. He could not let go the order for the warrant' and pursue the city for this greatly larger sum, and I find that there was an entire lack of good faith in the reasons he had then advanced and now advances for refusing to-let Mr. Watson have the warrant.
    Nor upon the other point in the case have I any greater difficulty in reaching a conclusion adverse to. Mr. McManus’' contention. The agreement made after January 1, 1898, did not abrogate the power of attorney and assignment heretobefore given by McManus to Watson and lodged with the city controller.
    We then have this condition: About April 1, 1898, Mc-Manus owed Watson about $20,000.
    To complete the schoolhouse contract, Watson advanced $7,350. He got $20,941.50 in a warrant from the city. He repaid himself the $7,350 and paid all the rest to the creditors on the schoolhouse, and more than $300 besides. He. took over McManus’ quarry as additional collateral security, and to complete the other three contracts and advanced money to run the quarry and to complete the three -contracts. He did not take the contracts completely out of McManus’ hands,, and there was not an assignment of the contracts as the con-, tracts exhibit an assignment. McManus’ control over them was not ousted, nor anything done by the plaintiff except to. finance the jobs and put a man in whom he had confidence, an employee of McManus’ in the position of superintendent and paymaster.
    McManus’ direction and control of the grading contract is particularly referred to in the testimony, of the superintendent, and it undoubtedly led to a loss by reason of breaking a bargain William M. Watson had made, and insisting upon quarry refuse being hauled from the quarry to. Lincoln avenue to “ fill ” with.
    Mr. Watson’s grandson, the said William M. Watson, who had been heretofore in McManus’ employ, continued in his employ after the arrangement was made that Watson should advance money in excess of $20,000, and while he became Mr. Watson’s representative in seeing that moneys Mr. Watson advanced should be expended upon the three contracts and not otherwise, neither he or Mr. Watson became McManus’ assignee as concerns the three contracts. But as a matter of law I hold that McManus cannot, in the proceeding before me, avail himself of the fact that he assigned to Mr. Watson, if what he did amounted in law to an assignment. The city might take advantage thereof, but McManus cannot.
    There is no moral right in McManus to have any of the payments due by the city on any of the contracts. ITe has by suit collected the reserve'on the schoolhouse contract and applied it to his own uses. Whether he has collected the balance on the two contracts at Queen lane reservoir did not appear in evidence. He testified, though, that at the time the suit on the Lincoln avenue contract was pending, he had sixteen suits against the city, and they may have been included in that number.
    Now we have the balance due on the Lincoln avenue grading contract judicially ascertained. Mr. Watson asks that it be paid to him. He shows that the power of attorney and assignment of January 1 assigns to him all McManus’ right, title, interest, claim and demand “ in and to all moneys, bills, warrants, and payments of any kind whatsoever, which now are or hereafter shall be receivable, payable or due ” to Mc-Manus “ from the City of Philadelphia on account of or by reason of any contract or contracts” which he, McManus, then had, “ or may hereafter have with the City of Philadelphia,” and Mr. Watson is constituted McManus’ attorney to collect and receive the same.
    FINDINGS OF LAW.
    McManus met Watson in the law department of this city in 1899. At that time he had the suit pending against the city to recover the amount he claimed to be due him on the Lincoln avenue grading contract. • That suit has resulted in his favor (211 Pa. 394). McManus now contends that Watson cannot have the relief sought by the bill filed in this case, because under Lockhardtv. The'City, he could have brought suit against the city at law to recover the balance due under the contract. The question is somewhat complicated. McManus has recovered upon the contract “ reformed.” In the Supreme Court opinion Mr. Justice Brown says:
    “ This being so, the plaintiff stands on a written contract with the city, not to be altered, varied, or departed from, but, to put it mildly, to be reformed for a mistake. Though contracts with the city of Philadelphia must be in writing, they are subject to reformation for fraud, accident, or mistake.”
    It is to secure the payment due on this reformed contract that the plaintiff has sought the aid of a court of equity. I cannot see how Watson could have collected by suit at law after McManus had proceeded to have the contract reformed. Surely, the city could not have been subjected to McManus’ suit wherein he sought to reform the contract and to Watson’s suit (McManus to his use) on the contract. Watson never possessed any right to reform the contract. lie advanced moneys to do the work and to secure repayment is entitled to collect any payments due McManus, but he never had any standing in law to collect what has been, by the judgment of the Supreme Court, given to McManus. I therefore find against the defendant on this point.
    The second point, that Watson cannot recover because the contract between McManus and the city prevented an assignment of it, I find against the defendant. There was in law no assignment of the contract, and if there had been, it wras a matter of which the city might complain, but not McManus. The city submits itself to the decree of the court and is willing to pay whoever is determined to be entitled to the sum it owes.
    On the third point, that the new agreement made after January 1, 1898, took away Watson’s rights under the assignment and power of attorney of January 1, 1898, I find against the defendant. The new agreement did not affect Mr. Watson’s rights under the power of attorney.
    The plaintiff has been quilty of no laches. As soon as he learned that McManus’ suit was pending he brought his action to prevent the city paying to McManus.
    The court entered a decree as follows:
    That an injunction issue restraining the defendant, Michael McManus, from collecting, or assigning, the judgment of $29,215.19, entered in the suit of said Michael McManus v. City of Philadelphia, in the court of common pleas, No. 1, of December Term, 1898, No. 547, or taking any further steps in said suit until a final decree be entered upon the cross bill filed in the suit of James Y. Watson v. Michael McManas, in the court of common pleas, No. 4, of June Term, 1899, No. 406, and enjoining the city of Philadelphia from paying the amount of said judgment until the further order of this court.
    April 27, 1908:
    That upon final determination of the said suit upon the cross bill of James Y.. Watson v. Michael McManus, in the court of common pleas,. No. 4, of June Term, 1899, No. 406, the parties hereto have leave to apply to this court for further order in the premises.
    That a copy of this decree be filed in the case of Michael McManus v. City of Philadelphia, in the court of common pleas, No. 1,. December Term, 1898,. No. 547.

      Error assigned was the decree of the court.

      F. B. Bracken, for appellant.

      John G. Johnson with him George B. Van Busen for appellee.
   Per Curiam,

This is in substance a bill of interpleader to determine the-proper party entitled to be paid a sum of money due by the city of Philadelphia on a contract of the city with the appel-' lant and assigned by appellant to plaintiff. The learned judge below found all- the facts in favor of the plaintiff, and the only questions in the case are well disposed of in the finding of law by him.

Decree affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Lasher, Appellant, v. Fahnestock Printing Company.

      Landlord and tenant — Contract—Excessive use of electricity — Failure of plaintiff to prove quantity used — Nonsuit.
    In an action by a landlord, against his tenant to recover for an excessive use of electricity over a supply to the extent of five horse power to which the tenant was entitled under his lease, a nonsuit is properly entered where it appears that it was impossible for the jury to estimate what horse power had been used because the meter from which the readings had been taken was one which did not register horse power, but which registered something else. The burden of proof in such a-case is on the plaintiff to show the extent of the excess.
    Argued Jan. 10, 1908.
    April 27, 1908:
    Appeal, No. 207, Jan. T., 1907, by plaintiff, from order of O. P. No. 3, Pbila. Co., March-T., 1904, No. 1,322, refusing to take off nonsuit in case of George F. Lasher v. Fahnestock Printing Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover for an excessive use of electricity. Before Ferguson, J.
    The opinion of the Supreme Court states the case.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refused to take off nonsuit.

      Henry Budd, for appellant.

      W. Horace Hepburn, for appellee.
   Per Curiam,

This was assumpsit for excessive use of electricity by the defendant. Plaintiff as landlord covenanted in consideration of the rent to supply electric power to the extent of five horse power, not to be metered, and to furnish additional horse power at the rate of $75.00 per annum per horse power. In explaining to the jury his reason for a non-suit, the learned judge below said the evidence “is too indefinite for you to endeavor to estimate the amount of horse power which the defendants used. As I said before, it is quite possible that the plaintiff did furnish excess horsepower; but the burden is upon him to show how much; and it is not possible for you to estimate what horse power the defendants used because the meter from which the readings for two months were taken was one which did not register.horse power, but which registered something else. Under these circumstances, it would be impossible for you to give a verdict for the plaintiff. I, therefore, direct that a nonsuit be entered.” An examination of the whole evidence fails to show any error in his action.

Judgment affirmed.


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    Landy, Appellant, v. Hamilton.

      Negligence — Child—Wagon—Nonsuit.
    In an action to recover damages for personal injuries to a child eight and one-half years old, a nonsuit is properly entered where the evidence shows that the child started to cross a street not at a public crossing, and met a wagon, which drew up to let her pass, and immediately beyond she was struck by defendant’s wagon going in the same direction, and there is no evidence of defendant’s negligence, except the child’s expression that the horse flew past “.like a bird.”
    Argued Jan. 13, 1908.
    Appeal, No. 8, Jan. T., 1907, by plaintiffs, from order of O. P. No. 2, Phila. Co., June T., 1905, No. 768, refusing to take off nonsuit in case of Dora Landy, by her next friend and father, Morris Landy, and Morris Landy v. Sarah Hamilton.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before WlLTBANK, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order of court refusing to take off nonsuit.

      April 27, 1908 :

      Bernard Harris, for appellants.

      Mias H. White, for appellee.
   Per Curiam,

The plaintiff, a child eight and a half years old, started to cross the street, not at a public crossing, and met a wagon, which drew up to let her pass, and immediately beyond she was struck by the defendant’s wagon, going in the same direction. There was no evidence of defendant’s negligence except the child’s expression that the horse flew past “like a bird. ” It would be unsafe to base a verdict on anything so indefinite.

Judgment affirmed.


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    Reynolds v. Philadelphia, Appellant.

      Negligence — Municipality—Defective street — Contributory negligence— Case for jury.

    In an action against a city to recover damages for personal injuries, it appeared that the plaintiff while walking at night on a street stepped into a hole or depression, apparently a cover of a water box which had sunk several inches, and was an obstruction in the line of travel. Plaintiff was not clear as to the cause of her fall, but said: “My foot went in and I fell.” Her companions inspected the spot immediately and were more explicit in their description. As to whether she was looking she said that she was just looking the way she walked. Held, that the question of defendant’s negligence and plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 13, 1908.
    Appeal, No. 230, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 4,898, on verdict for plaintiff in case of David B. Beynolds and Blanche S. Beynolds v. City of Philadelphia.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Balston, J.

      April 27, 1908 :
    The opinion of the Supreme Court states the case.
    Yerdict for David R. Reynolds for $500 and for Blanche F. Reynolds for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Frederick Beyer, with him Robert Brannon, assistant city solicitor, and J. Howard Qendeil, city solicitor, for appellants.

      Henry J. Scott, for appellees.
   Per Curiam,

The plaintiff, walking at night along Diamond street, stepped into a hole or depression, apparently the cover of a water box which had sunk several inches and was an obstruction in the line of travel. The plaintiff herself was not very clear as to the causé of her fall, but she said “ My foot went in and I fell,” but her companions examined the spot immediately and were more explicit.

On the question of her own negligence she was also far from clear, but among other answers she said she was just looking the way she walked. On both points it was a case for the jury.

Judgment affirmed.


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    Girard Trust Company v. Avonmore Land & Improvement Company.

      Corporation — Mortgage—Foreclosure—Equity —■ Jurisdiction — Act of May 4,1893, P. A 29.
    Where a mortgage or deed of trust of a Pennsylvania corporation empowers the trustee to foreclose upon a request of a majority of the bondholders, and a majority makes such a request, the trustee may file a bill in equity for foreclosure, and is not restricted to a scire facias at law. In such a case a court of equity has jurisdiction not only under its general chancery powers, but also under the Act of May 4, 1893, P. L. 29. The insertion of a power of sale in such a mortgage does not supersede the remedy of a foreclosure bill.

      Argued Jan. 17, 1908.
    Appeal, No. 374, Jan. T., 1907, by the Alcania Company, from decree of C. P. No. 2, Phila. Co., March T., 1907, No. 2,426, on bill in equity in case of Girard Trust Company v. Avonmore Land & Improvement Company, defendant, and Alcania Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to foreclose a deed of trust.
    ~Wiltbank, J., filed the following opinion:
    The questions discussed relate to the jurisdiction of this court of a bill filed by a corporation, in obedience to the demand of creditors for the foreclosure of two mortgages to secure the bonds of another corporation, and for an accounting of the proceeds among bondholders and other creditors,, the pledged land to pass free of lien. The equity trial judge admitted to intervene a third corporation having an equitable lien upon the pledged land later in its creation than the first mortgage of the plaintiff, but earlier than the second. It is this third corporation that raises the question of jurisdiction on demurrer to the bill.
    The plaintiff, the Girard Trust Company, and the defendant, the Avonmore Land & Improvement Company, are in accord as to the right of the plaintiff as trustee for bondholders to obtain a decree. The required number of bondholders have directed the plaintiff to foreclose. They were expressly empowered to do this by the terms of the mortgages. The intervening corporation, known as the Alcania Company, does not dispute the right of the Girard Trust Company to proceed for failure of performance of the covenants for payment; it admits the failure, but it contends that the remedy is by scire facias at law, and that as no jurisdiction to foreclose in equity has been created in Pennsylvania the necessity for an account, which it cannot dispute, is not sufficient to hold the bill. The covenant of the mortgagor that the mortgagee may sell on default is not relied on as a bar to the decree, but its relation to the subject will later be briefly adverted to.
    The lien of the Alcania Company involves a complication which would bring it into an accounting with the bondnolders and the Alcania Company were the property to realize in money beyond a certain limit.
    The first mortgage of the Avonmore Land & Improvement Company was executed and delivered on January 23, 1894. The second mortgage was executed and delivered on June 2, 1900. At a time between these dates, on August 28, 1898, one Hilyard and one Wylie entered into a contract with the Avonmore Land & Improvement Company by which they and their assigns obtained from the company a lease of a part of the tract mortgaged to the plaintiff, comprising ten acres, for the purpose of erecting a two-mill plant thereon for the manufacture of tin, etc. They secured the right to purchase the tract thus let upon certain terms, and became entitled to the sum of $41,000 as a bonus or reward for improvements erected aiding the development and availability of the entire tract. Their estate and rights passed from them by due assignment to the Alcania Company, and that company improved the land according to the contract, and thus acquired the title to the bonus stipulated to be paid by the Avonmore company at certain stages of the development of the property. A part of this bonus h.as been paid. The lien on the entire tract mortgaged to the Girard Trust Company was created at the time, and still subsists in favor of the Alcania Company, as appears by the contract and deeds between the parties. It was upon a demonstration of these circumstances in its petition to intervene that the trial judge permitted the Alcania Company to appear and argue its demurrer to the jurisdiction.
    To support their contention counsel for the Alcania Company cite the case of Ashhurst v. Montour Iron Co., 35 Pa. 30, and with confidence rely upon it as conclusive in their favor. In that case John Ashhurst and Edwin M. Lewis filed a bill for the foreclosure of a mortgage delivered to them by the Montour Iron Company to secure its bonds, averring that there had been a breach of covenant of the mortgagor, a pecuniary default, and consequently a resulting right and duty in the plaintiff to foreclose. I have examined the pleadings and briefs as among the records of the nisi prius. The bill averred that a trust had been created by the defendant in and by an indenture of mortgage which was exhibited, and that the plaintiffs survived Isaac R. Davies, w7ho had been appointed with them, and prayed for a decree of sale in their behalf as mortgagees.
    The bill appears to have been taken pro confesso. The case was referred to Joel Jones, Esq., as master, and his report ascertained the entire indebtedness on the bonds issued by the company and the interest due up to the date of the filing thereof. A decree was entered approving the report of the master, and further specifically finding what moneys were due for principal and interest in the premises, and ordering a sale of the lands by John Ashhurst and Edwin M. Lewis, surviving trustees, subject to a certain lien or liens therein described, and free, clear and discharged of all other liens.
    The error assigned in the Supreme Court was the decree in favor of the mortgagee entered without authority in the judge to take cognizance of an obligation created and enforceable at law. It was argued that the nisi prius sitting in equity had not jurisdiction.
    The Supreme Court adjudged that the nisi prius had not jurisdiction of the cause, the parties were found upon the proofs to be individuals, debtor and creditor, sustaining no fiduciary relation, but, on the contrary, bound by a legal obligation recognized and enforced at law as one of the most familiar and extended subjects of its daily administration. The controlling circumstance was that the defendant owed money on its bonds; true it was, that in order to facilitate the raising of the loan and assure repayment, and thus to sustain and perhaps strengthen its credit, it had conveyed to the plaintiff property as security. This property so far as the defendant or mortgagor was concerned was held by the plaintiff or mortgagee in his own right at law to the use of a body of creditors and indirectly to that of the corporation debtor. The terms of the mortgage stipulated for the sale of the pledged property upon the breach of its obligation by the debtor. But the process intended and directed in the instrument was at law under the statutes providing a writ of scire facias. No risk was shown to be apprehended as to the distribution of the fund. The creditors were, therefore, neither plaintiffs nor defendants. Upon default the mortgagee became responsible to them, and we must therefore recognize a trust primarily in their behalf; but so far as any action at law was involved, the mortgagee was the creditor of the mortgagor, and as such had ample remedy. He was the legal plaintiff and the use plaintiffs were not in view. It is true that had there ensued a failure of the mortgagee to account for the proceeds of the sale he would have stood answerable to the mortgagor, and in this sense would have incurred the responsibility of a trustee in respect ,of his ultimate liability, provided an action at law, for money had and received or the like, appeared inadequate. But this contingency was remote, and could not be regarded as a feature of any significance at the time the bill was filed.
    ' It is clear that in Ashhurst v. The Montour Iron Oo., the appellant and appellee appeared in the character of mortgagor and mortgagee last described. There was nothing to show that the mortgagee as trustee for bondholders upon proper case shown desired the aid of the court in the execution of the primary trust; he sued as mortgagee without regard to his liability to account over, and he excluded the cestuis que trustent.
    The judgment in Ashhurst v. Montour Iron Co., and in the later 'cases referring thereto laid stress upon the distinction between an application for equitable relief on the part of a mort.gagee against a mortgagor, each merely that and nothing more, and the application of a trustee or of cestuis que trustent specifically in that character to a court of chancery for relief. The statutes and decisions make it evident that we have jurisdiction generally in equity where relief is sought as between parties to a trust, to wit: the trustee and the cestuis que trustent; and further that in cases of accounting, where the adjustment of claims and equities must involve a nicer consideration and more intricate process than is usually within the capacity of a jury, a chancellor will proceed without hesitation. The expressions of the Supreme Court indicating the distinction are numerous, and on the subject of accounting they are unvarying. Mortgagor and mortgagee are debtor and creditor at law dealing with a pledge as an incident of a contract of loan on which the remedy at law is ample.
    “But,” said the Supreme Court in grouping the statutes conferring jurisdiction, “control of trustees or trust property and of trustees’ accounts is expressly conferred: ” Ashhurst v. Montour Iron Co., 35 Pa. 30.
    In the case at bar the Alcania Company attempts to confine the Contest to the Girard Trust Company and the Avonmore Land & Improvement Company, without regard to the constituents of the Girard Trust Company, but this is neglecting the controlling circumstance of the litigation and that which distinguishes it from the case first examined, to wit: the insistence on the part of the-bondholders acting through a stipulated majority that the mortgagee as trustee proceed to realize upon the property pledged. The use plaintiffs are the actors. Their demand has been formulated and presented under the terms of the mortgage, and has been found just and proper by the mortgagor or debtor. The default is admitted and a sale of the property is assented to. The object of the trustee in this situation is to perform its duty most efficiently in the interest of all concerned, and to this end to make a sale of the land discharged of incumbrances and free from imperfections of title and also to appropriate the proceeds upon due accounting according to the rights of the creditors and the debtor. It is conceded in behalf of the Alcania Company that we would have had jurisdiction had the bondholders demanded action on the part of the Girard Trust Company and that company had refused. In such case, it was argued, the litigation would have been between the Avonmore Land & Improvement Company and its creditors with a legal title outstanding in the representative of both. It was agreed that jurisdiction would have attached had the Girard Trust Company peremptorily declined to proceed, because then the bondholders would have become entitled to have the trust executed for them, and this right a chancellor would have enforced at their instance. Were we not to regard the bondholders as parties primarily interested here, or, in other words, as the actors, we yet could not pronounce the trustee bound to incur the risk of even a formal-.breach of its covenants as a meritorious act creating an equity in its own behalf; nor could we look to its assent or dissent as the test of our jurisdiction.
    The power of sale granted the Girard Trust Company is not a bar to this proceeding. U nder the earlier cases in England the conclusion would have been otherwise. It was first held by the chancellor that there was no right to foreclose where there was such power of sale: 2 Spence’s Equity Jurisprudence, 676 ; Sampson v. Pattison, 1 Hare, 533 ; Down v. Morris, 3 Hare, 394. But it has been decided in this country, as well as in England, that the insertion of a power of sale in a mortgage does not supersede the remedy of a foreclosure bill: Clark v. Jones, 93 Tenn. 639 (27 S. W. Repr. 1009). The modification of the law of England was created by the 15 and 16 Yictoria, chap. 86.
    We, therefore, conclude that we have jurisdiction, on the ground that the trustee has been constrained by the action of the cestuis que trustent to proceed to foreclose the mortgage, and that this constraint may be regarded in one aspect as adverse to the trustee, who, therefore, is entitled to the protection of the chancellor as he enters upon the performance of his duty, and further to this end entitled to secure a decree that the purchasers of the land take a clear title.
    Indeed, the action of the Alcania Company shows the expediency of a decree pursuant to the prayer of the bill, because it has brought itself before us as a creditor claiming the right to obstruct the course of collection in behalf of other creditors; it thus gives color to the indication that had the case proceeded beyond the demurrer the Alcania Company would have regarded itself as in position as defendant to interpose obstacles to a sale by way of securing a recognition of its equitable right and some recompense for its later accommodating itself to the course which the bondholders believed to be for their best interest. This discloses a threatened contest between creditors of a corporation. Unless the Girard Trust Company by advertising a sale discharging liens can make title to purchasers without putting them to the risk at some stage of such contest, a notice of the Alcania Company published at a sale might deter buyers and inequitably prejudice the bondholders by a falling off in the bids. Our authority is adequate upon the principles herein cited. But besides this we have the warrant of the Act of May 4, 1893, P. L. 29, which provides that the several courts of common pleas having the powers of a court of chancery shall have jurisdiction of all litigations and disputes between stockholders, and parties claiming to be stockholders, and between creditors and stockholders, and creditors and the corporation, of all corporations within the state.

      April 27, 1908:
    The exception to the finding of the trial judge is dismissed, and the demurrer of the Alcania Company is overruled. The prayer of the bill is granted.
    The court entered a decree of foreclosure.

      Error assigned was the decree of the court.

      David Wallerstein, with him Francis Fisher Kane and Arthur O. Fording, for appellant.
    A court of equity had no jurisdiction : Ashhurst v. Montour Iron Co., 35 Pa. 30 ; Bradley v. Chester Valley R. R. Co., 36 Pa. 141; Phila., etc., R. R. Co. v. Johnson, 54 Pa. 127 ; McElrath v. R. R. Co., 55 Pa. 189.; Winton’s App., 87 Pa. 77 ; Fidelity Title & Trust Co. v. Schenley Park, etc., Ry. Co., 189 Pa. 363 ; Old Colony Trust Co. v. Transit Co., 192 Pa. 596.
    The act of May 4, 1893, did not extend the equity jurisdiction of the court of common pleas so as to include bills for the foreclosure of mortgages given by corporations other than those designated in the acts of 1876 and 1877 : Coe v. Coke Co., 30 Pa. C. C. Rep. 113.

      John Hampton Barnes, for appellee.
   Per Curiam,

The decree is affirmed on the opinion of the learned court below.


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    Stevenson v. United States Express Company, Appellant.

      Negligence — Animals—Unattended horse in city street — Contributory negligence — Question for fury.

    One who leaves a horse unhitched and unattended on a city street takes the risk of what the horse may do. Such an act raises a presumption of negligence and puts on the party doing it the burden of showing circumstances which justified or excused it. How strong the presumption will be must depend largely on the circumstances. If the horse is young, skittish, nervous or unused to the sights and sounds of a city street the presumption would be strong, while if he is old, staid and accustomed to city life, it might be very slight.

      Where an invalid in a rolling chair is left by her attendant in the cartway of a public street about twenty feet behind an unattended and unhitched horse and wagon, and the horse backs upon the chair and injures its occupant, the question of the occupant’s contributory negligence is for the jury.
    Argued Jan. 17, 1908.
    Appeal, No. 236, Jan. T., 1907, by-defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 1,025, on verdict for plaintiff in case of Elizabeth L. Stevenson v. United States Express Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    ■ Trespass to recover damages for personal injuries. Before Magill, J.
    ■ At the trial it appeared that on January 2, 1906, the plaintiff, an invalid, was pushed in her rolling chair by her attendant, to a point near the express office of the defendant company. The attendant left .the chair with the plaintiff in it, standing in the cartway of the street while she went to deliver a package at the express office. About twenty feet in front of the rolling chair stood a horse and wagon belonging to the defendant, the horse being unhitched and unattended. While the two vehicles were in this position the horse suddenly backed upon the chair, overturned it and seriously injured the plaintiff. There was evidence that the cause of the horse backing, was the colic. The court submitted plaintiff’s negligence and defendant’s contributory negligence to the jury.
    Verdict and judgment for plaintiff for $6,000. Défendant appealed.

      Error assigned was in submitting the case to the jury.

      James F. Campbell, for appellant.
    The leaving of a helpless invalid in a rolling chair in the cartway of a busy city street in the rear of an unattended wagon is negligence per se : Holt v. R. R. Co., 206 Pa. 356 ; Eby v. Shenk, 11 Lancaster Law Review, 337; Evans v. Express Co., 122 Indiana, 362 (23 N. E. Repr. 1039); Hoffman v. Rapid Transit Co., 214 Pa. 87; Harris v. Ice Co., 153 Pa. 278 ; Haven v. Bridge Co., 151 Pa. 620; Miller v. Atlantic Refining Co., 210 Pa. 628.

      April 27, 1908:
    The leaving of the horse unhitched and unattended under the facts in this case does not raise a presumption of negligence, or prima facie evidence of negligence sufficient to carry the case to the jury: Swanson v. Crandall, 2 Pa. Superior Ct. 85; Ry. Co. v. Trich, 117 Pa. 390; Chartiers Twp. v. Phillips, 122 Pa. 601; McCauley v. Logan, 152 Pa. 202; McGrew v. Stone, 53 Pa. 436; Cage v. Franklin Twp., 11 Pa. Superior Ct. 533.

      A. S. Ashlridge, Jr., for appellee,
    cited : Henry v. Klopfer, 147 Pa. 178; Casey v. United States Express Co., 214 Pa. 1.
   Per Curiam,

One who leaves a horse unhitched and unattended on a city street takes the risk of what the horse may do. It was held in Henry v. Klopfer, 147 Pa. 178, that such an act raises a presumption of negligence and puts on the party doing it the burden of showing circumstances which justified or excused it. How strong the presumption will be must depend largely on the circumstances. If the horse is young, skittish, nervous or unused to the sights and sounds of a city street, the presumption would be strong, while if he is old, staid and accustomed to city life, it might be very slight. But even a staid and veteran horse may be liable to sudden fright, or as in this case to sudden pain which may induce dangerous behavior. It is, therefore, a matter for the jury.

So, on the other hand, was the question of contributory negligence of the plaintiff. The ordinance of February 2, 1897 (Brown’s Digest, p. 1348), regulating travel on the public highways of Philadelphia, classes together all persons riding or driving “ whether on horseback, in carriages, wagons or other vehicles, or upon bicycles, tricycles, or other mechanical contrivances,” as occupants of the cartway, and the next section subjects all persons using “ barrows or hand carts ” to the regulations prescribed for carriages, wagons and other vehicles. Wheeled or rolling chairs are not specifically named, but they are clearly within the description of vehicles, and “other mechanical contrivances.” Whether in view of their almost exclusive use for small children and invalids they might not reasonably be entitled to take the foot pavement, they certainly are not obliged to do so. It would be a question for the jury on wbic-h the customs of the people would be weighty evidence.

Prima facie, therefore, the' plaintiff was within her legal rights, if not her legal obligations, in using the street. "Whether or not she was negligent in stopping and being left unattended in her condition of impaired capacity for movement, behind an unhitched horse, was clearly a matter for the jury.

Judgment affirmed.


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    Taussig’s Appeal.

      Principal and surety — Judgment note — Assignment of interest in trust estate — Evidence—Decedents’ estates.

    Where a mother and son, the one having a life interest, and the other a remainder interest in an estate, jointly execute a judgment note, and assign their respective interests as security for the payment of the note, and it appears on the face of the papers that the mother was the principal and the son the surety in the transaction, it may be shown, nevertheless, after the death of the mother, as between the4mother’s estate and the son or his assignee, that the son was in fact the principal, and the mother only the surety.
    Argued Jan. 22, 1908.
    Appeal, No. 30, Jan. T., 1908, by L. Meredith Taussig (formerly Ball), and May W. Ball, Executrices of the Estate of Sarah B. Ball, deceased, from decree of O. P. No. 4, Phila. Co., March T., 1891, No. 931, dismissing exceptions to auditor’s report in the Trust Estate of George B. W. Ball and wife.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to report of auditor, Gordon Bromley, Esq.
    From the record it appeared that on June 27, 1878, George B. W. Ball and wife executed a voluntary deed of trust to the Pennsylvania Company for Insurance on Lives and Granting Annuities. Under this deed the grantors reserved to themselves life estates in the principal with remainder over to their children. After the death of Mr. Ball, Mrs. Ball and her son, Louis Irving Ball, signed the papers constituting the transaction described in the opinion of the Supreme Court. Before the auditor one William Bryans, an assignee of Louis Irving Ball, claimed the share of 'Louis’s estate assigned to him as against the claim of Mrs. Ball’s estate. The auditor allowed Bryans’ claim.
    April 27, 1908:
    Exceptions to the auditor’s report filed by Mrs. Ball’s executors were dismissed by the court.

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

      William Trautwme, Jr., Joshua Matlaoh and E. Spencer Miller, for appellants.

      J. Howard Morrison, for appellee.
   Per Curiam,

The relations of borrowers to the lender are not conclusive of their relations to each other. In this case the borrowers were mother and son, and it may be conceded that on the face of the papers the former was the principal aud the latter only a surety. But the facts as shown by the evidence are all the other way. Both mother and son had interests in a trust estate, the former’s being present and the latter’s future and contingent. The son wanted to borrow money, and on applying for a loan was informed that his security was not sufficient, but that if his mother would pledge her name and interest in the trust estate the loan would be made. The mother consented and the loan was made, both parties signing a judgment note, and each separately executing an assignment of his and her interest in the trust estate with power of attorney to collect from the trustee, etc. On the note both parties were joint obligors, but conceding for present purposes that on the face of the papers the mother became the principal debtor, the situation was open to explanation and the evidence makes it clear beyond all doubt. The son, not the mother, wanted to borrow the money, the lender refused to make the loan to him, but as the mother had an interest in the trust estate which made him willing to lend on her credit, he put her in the position of primary debtor and made the loan. As between, him and the borrowers the relation was thus made conclusive, and it may be conceded that, prima facie, that was the relation of the borrowers between themselves. But the evidence is overwhelming that the real relations were entirely different. As already said the son wanted the loan, he applied for it himself, and failed to get it. Then his mother pledged herself for it, the loan was made and the son got the money. As between themselves he was the principal debtor and the mother only a surety in the whole matter. The learned auditor below gave too much weight to the mere form of the transaction, in disregard of the convincing evidence of its actual character.

Decree reversed and record remitted, with directions to allow the claim of appellants.


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    March v. Phœnixville Borough, Appellant.

      Negligence — Municipalities—Highways—Defective sidewalk.

    A municipality is bound to keep its highways in fairly safe travelable condition, and travelers are entitled to presume that it will do so. Where the traveler has knowledge of a defect in the highway it does not follow as a legal consequence that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger and the difficulty or inconvenience of avoiding it. If the danger was serious and imminent it might be the traveler’s duty as a matter of law to avoid it at any inconvenience; if however, the danger was trifling and the inconvenience of taking another way was so great that an ordinarily prudent man would not subject himself to it, it would not be negligence not to do so. Between these extremes are the countless gradations of danger and ways of avoiding it, depending on the circumstances. This class of cases must necessarily go to the jury.
    In an action against a borough by a woman, to recover damages for personal injuries by a fall on a defective sidewalk, the case is for the jury where the evidence tends to show that at the place of the accident there was a depression or hole in the sidewalk, the depth of which was variously estimated at from four to eight inches; that this depression had been there for several months; that the plaintiff although living in the vicinity had only passed the place three times within a year, and had no knowledge of the condition of the pavement; and that the accident happened at night while the plaintiff was walking side by side with a companion.
    Argued Feb. 10, 1908.
    Appeal, No. 76, Jan. T., 1907, by defendant, from judgment of C. P. Chester Co., April T., 1906, No. 69, on verdict for plaintiff in case of Isaiah G. March and Barbara March, his wife, v. The Burgess & Town Council of the Borough of PhcEnixville.
    Before Mitohbll, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    At the trial it appeared that plaintiff on the night of October 31, 1905, about 10 p. m., was walking side by side with a companion on Hall street, PhcEnixville, Pa., when she fell into a hole in the pavement, variously estimated at from four to eight inches in depth, and was seriously injured. Mrs. March lived a short distance away on the same street. The plaintiff testified that she was not in the habit of walking along this pavement, had only been over it three times during the year, and knew nothing of its condition. The hole in the sidewalk had been allowed to continue for a long period of time.
    The defendant presented these points:
    2. The testimony of Barbara March, plaintiff, is th at the point where the accident to her is alleged to have happened, was on the direct route between her residence, where she had lived for over five years, and the business portion of the borough, defendant; that she had passed this point at least three times during the year immediately preceding the accident (the condition of the street was unchanged during that time) and that she and her companion walking abreast, arm in arm, had passed over this point on their way up that street the evening of the alleged accident. Therefore, if the defect in the sidewalk at the point in question was so notorious as to be evident to all passers, and, therefore, to constitute constructive notice to the borough thereof, the plaintiff, Barbara March, is presumed, under the evidence in this case, above stated, to have known that the pavement was unsafe; and, therefore, she was required to choose the safe route, which was open to her;' and, not having done so, she is guilty of contributory negligence and cannot recover in this case. Answer: That sounds somewhat argumentative, but still, we will pass on it and refuse that point. [1]
    April 27, 1908:
    3. That it is the duty of one who is walking the streets of a city, either in the daytime or at night, “ to look where he is going,” and .this is a look ahead, and the look ahead that discharges the duty is one which includes in the scope of vision the ground from the feet forward. Where it clearly appears that a look down, or a look which includes the ground in front of the pedestrian, would have disclosed the hole or irregularity, then the case is one of negligent observation, and the plaintiff cannot recover, and this it is the duty of the trial judge to rule as a matter of law : Strayline et al. v. Phila., 15 Pa. Dist. Rep. 395. Such being the law, the plaintiff, Barbara March, was guilty, in this case, of negligent observation, and she cannot recover. Answer: That, taken as a whole, some part of it is good law; but as a whole, it must be refused. [2]
    Under all the evidence the verdict must be for the defendant. Answer: That also is refused, as that is a question for the jury. The facts are somewhat conflicting, although not to any great extent, but sufficient to require us to submit them to you for your consideration. [3]
    Yerdict and judgment for Isaiah G. March for $500, and for Barbara March for $2,000. Defendant appealed.

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

      Gibbons Gray Cornwell, with him Samuel A. Whitaker, for appellant.

      Thomas W. Pierce, for appellee.
   Per Curiam,

There was evidence that the defect in the highway had existed long enough to presume notice to the borough authorities, and the only question in the case, therefore, is the contributory negligence of the plaintiff.

The municipality is bound to keep its highways in fairly safe travelable condition, and travelers are entitled to presume that it will do so. Where the traveler has knowledge of a defect in the highway it does not follow as a legal consequence that he must under all circumstances avoid the use of it and reach his destination in some other way. It is a question of the character and imminency of the danger, and the difficulty or inconvenience of avoiding it. If the danger was serious and imminent it might be the traveler’s duty, as a matter of law, to avoid it at any inconvenience; if, however, the danger was trifling, and the inconvenience of taking another way was so great that an ordinarily prudent man would not subject himself to it, it would not be negligence not to do so. Between these extremes are the countless gradations of danger and ways of avoiding it, depending on the circumstances. This class of cases must necessarily go to the jury. The present is one of them.

Judgment affirmed.


text:
    Hess v. American Pipe Manufacturing Company, Appellant.

      Negligence — Explosion—Fright—Physical injuries — Evidence—Case for jury.

    Mere fright unaccompanied by physical injuries is not sufficient to sustain an action of negligence; but where a woman injured by an explosion testifies that in addition to the fright she was thrown on a chair by the force of the concussion and injured in the face by particles of glass from shattered windows, her case is for the jury, and a verdict and judgment in her favor will be sustained.
    Argued Feb. 10, 1908.
    Appeals, Nos. 193 and 194, Jan. T., 1907, by defendant, from judgment of C. P. Chester Co., April Term, 1906, Nos. 39 and 40, on verdict for plaintiffs in case of William Hess and Ada Hess, his wife, v. American Pipe Manufacturing Company.
    Before Mitchell, C. J., Brown, Mestkezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Butler, J.
    The opinion of the Supreme Court states the case.

      April 27, 1908:
    Verdict and judgment for William Hess for $400 andfor Ada Hess for $1,800. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      Thomas W. Pierce, for appellant.

      Wilmer W. MaoMree, with him Joseph U. Baldwin, for appellee.
   Per Curiam,

It is settled that mere fright unaccompanied by physical in- ■ jury is not sufficient to sustain an action for negligence: Huston v. Freemansburg Boro., 212 Pa. 548; Ewing v. Ry. Co., 147 Pa. 40 ; Linn v. Duquesne Borough, 204 Pa. 551. The jury in the present case was explicitly instructed to this effect and there is no complaint of the charge in that respect.

While it may be a little doubtful even on the plaintiff’s own testimony, whether she really received any direct physical injuries from the blast, apart from the fright, yet she testified positively that she was thrown on a chair by the force of the concussion, and this testimony gets some support from the fact that several window panes were broken and some particles of the glass struck her in the face. It was claimed bj^ defendant that her previous testimony was not in accord with this, but the question of credibility was for the jury.

Judgment affirmed.


author: Mr. Justice Mestrezat,

text:
    Slotter, Appellant, v. Patterson.

      Equity — Specific performance— Assumpsit— Ground rent— Incumbrances — Municipal liens.

    An action of assumpsit brought to recover the purchase money due on a written agreement by which the plaintiff sold to the defendant a yearly ground rent, will be treated as a bill for the specific performance of a contract for the sale of real estate, and the rights of the parties must be determined in accordance with equitable principles applicable in such cases.
    . A person who agreed in writing to- purchase a yearly ground rent “clear of all encumbrances which affect the principal of the ground rent,” is relieved from liability under his contract where it is ascertained that at the date of the agreement and when plaintiff tendered a deed there were certain municipal liens which were first liens against the real estate out of which the rent issued, amounting in the aggregate to a large sum of money.
    Argued March 23, 1908.
    April 27, 1908:
    Appeal, No. 388, Jan. T., 1907, by plaintiff, from order of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 4,654, discharging rule for judgment for want of a sufficient affidavit of defense in case of Aaron EL Slotter v. Joseph G. Patterson, Jr.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover purchase money of ground rents.
    The opinion of the Supreme Court states the case.
    The court below in an opinion by Staake, J., discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Henry W. Scarborough, for appellant.

      Homer G. White, for appellee.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit brought by the plaintiff to recover the purchase money due on a written agreement by which the plaintiff sold to the defendant a “ certain yearly ground rent for the sum of one hundred and twenty dollars payable half yearly .... out of and for all that certain lot or piece of ground with the buildings and improvements there erected situate on the west side of Eorty-ninth street ” in the city of Philadelphia. The action, therefore, must be treated as a bill for the specific performance of a contract for the sale of real estate, and the rights of the parties must be determined in accordance with equitable principles applicable in such cases.

The plaintiff agreed to convey a title “clear of all incumbrances which affect the principle of the ground-rent.” On investigation the defendant ascertained that at the date of the agreement and when the plaintiff tendered a deed there were certain municipal liens against the property amounting in the aggregate to more than $1,000. He, therefore, refused to pay the purchase price and accept a title to the ground rent, alleging as a reason therefor that the plaintiff could not convey a title, as required by his agreement, clear of all incumbrances which affect the principle of the ground-rent.” This is the only question in the case, and on a rule for judgment for want of a sufficient affidavit of defense, the court below sustained the contention of the defendant and refused judgment.

We need not enter into a discussion to show that the trial court properly disposed of the case. The question involved is clearly and conclusively settled by the decision of this court in Mitchell v. Steinmetz, 97 Pa. 251. That was an action of assumpsit for the recovery of damages alleged to have resulted to the plaintiff, the owner of a ground rent, by reason of the refusal of the defendant, who had purchased it, to take title. The parties submitted a case stated, and it was agreed that the court should exercise as full equitable powers as if a bill in equity had been filed for specific performance of a contract of sale.” The defendant purchased at auction a ground rent of $100 per annum owned by the plaintiff, paying therefore $1,600. The defendant refused to accept a deed on the ground that there existed at the time of the sale and when the deed was tendered, certain taxes and municipal claims against the lot out of which the rent issued, amounting in the aggregate to $1,684.79. The defendant contended that the title to the ground rent sold was not, by reason of the liens, marketable at the time of the sale. It was admitted that the title to the ground rent itself was good and marketable in all other respects, and that the deed tendered was in proper form. The questions of law presented to the court for determination were: (a) Is the defendant relieved from his contract to purchase the ground rent by reason of the existence of the incumbrances upon the real estate out of which the ground rent purchased issued ? and, (b) are the plaintiffs entitled to recover from the defendant the loss sustained by reason of the nonfulfillment by the defendant of his agreement to purchase the ground rent ? The first question was answered in the affirmative and the second question in the negative by the trial court which entered judgment for the defendant; and on appeal the judgment was affirmed by this court.

It will be observed that the facts of the case at bar are similar to those in the Mitchell case, and the reasoning in the latter case applies with full force to the case under consideration. Paxson, J., delivering the opinion, said, inter alia (p. 255): “ What are the facts here ? The land is heavily encumbered by municipal claims and taxes, which, .... are made prior to all other liens and encumbrances. A judicial sale for the arrears of ground-rent, or upon any other encumbrance, will not discharge the lien of the taxes unless the property brings enough to pay them. It is manifest, therefore, that this ground-rent is worthless, or its value greatly impaired by reason of the liens upon the land out of which it issues. These liens affect the title to the land, and whatever impairs the title to the land necessarily impairs the title to a rent issuing out of the land. If the title to the land fails, the title to the rent fails with it. I presume it will be conceded that if this ground rent had been subject to prior mortgage on the land equal to the value of the latter, the title to the rent would have been worthless. In what respect does such case differ from the one in hand ? In either event the rent is subject to a paramount lien upon the thing out of which it issues, and it necessarily sweeps away the title to both.”

So far as appears in this record, the municipal claims which are a first lien against the lot out of which the ground rent issues may be equal or almost equal to the value of the lot itself. It is impossible, therefore, to say that these liens will not affect the principal of the ground rent. In fact, if the claims amount to the full value of the property, they would wipe out entirely the ground rent. This is distinctly ruled in the Mitchell case. It is conceded that a sale made upon the municipal liens would discharge the arrears of ground rent at the time of the sale, and that the proceeds would be applicable to the liens. This would necessarily affect the defendant’s investment. By the agreement of the parties the defendant, purchased the “ certain yearly ground-rent for the sum of one hundred and twenty dollars” issuing out of the lot, and to deprive him of any part of that sum deprives him pro tanto of his investment, which is “ the principal of the ground-rent.”

We think the defendant set up sufficient facts in his affidavit of defense to justify the ruling of the court below, and, therefore, the judgment is affirmed.


text:
    Hollis, Appellant, v. Widener.

      Negligence — Master and servant — Safe place to work — Ice machine— Unguarded platform.

    In an action by an employee against his employer to recover damages for personal injuries sustained while the plaintiff was engaged in oiling an ice machine, where the plaintiff alleges that the place in which he was required to work was unsafe by the character of the platform which he was obliged to use, he may show that the platform was not that in ordinary use, that it was not protected by guard rails, and that the necessity for guarding the machinery was brought to the attention of the defendant, or a person representing him, who promised to remove the danger by providing the guards necessary to protect the plaintiff while he was engaged at his work.
    An employee rebuts the. presumption that he assumed the risk of working on a platform of a machine not guarded by a railing, by showing that he notified his employer of the dangerous condition of the platform, and was assured that the danger would be removed, and that he remained at his work solely by reason of this assurance.
    Where an employee slips as he places his foot upon the unguarded platform of an ice machine on which he is obliged to go in order to oil the machine and is injured, he will be regarded as having been engaged at his work as a oiler of the machine at the time he was injured. In such a case it is the duty of the employer not only to use reasonable care in protecting the plaintiff while he is at work on the platform, but also while he is stepping on it, in order to perform his work.
    Argued March 25, 1908.
    Appeal, No. 11 Jan. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1904, No. 1,306, refusing to take off nonsuit in case of Edward G. Hollis v. Peter A. B. Widener.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.

      At the trial it appeared that plaintiff was injured on July 23, 1902, while serving as an oiler on defendant’s steam yacht at a time when the yacht was cruising in the English channel.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    When the plaintiff was on the stand he was asked this question :
    “ Q. What has been the appliances on platforms and fixtures you have seen around engines — how have they been arranged ? ”
    Objected to.
    “ Q. Did you ever see platforms for oilers? A. Tes, sir. Q. What is the usual arrangement of them ? ”
    Objected to. Objection sustained. Exception for plaintiff. [3]
    “ Q. Did you ever see in your experience any driving wheels or fly wheels of engines which were unprotected or unguarded outside of this one ? ”
    Objected to. Objection sustained. Exception for plaintiff. [4]
    “ Q. Did you ever see in your experience of eight or ten years any platforms three feet off the ground outside of this one on the Josephine without steps ? ”
    Objected to. Objection sustained. Exception for plaintiff. [5]
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1, 2) refusal to take off nonsuit; (3-5) rulings on evidence, quoting the bill of exceptions.

      S. M. Waln, of Wain <& Westcott, for appellant.
    It required no expert testimony and no special knowledge or training to inform the jury that the entrance to this platform was difficult, dangerous and unusual, and that in case the foot of the oiler slipped on the platform and passed between the open spokes of the drive wheel of the engine, it would be cut off: Reese v. Clark, 198 Pa. 312; Graham v. Penna. Co., 139 Pa. 149.

      April 27, 1908:
    Plaintiff contends that this complaint and promise to provide the guard along the edge of platform or a fender, rebuts the presumption of law that he took the open and apparent risk of his employment, and constitutes an exception to that rule of law, and renders the defendant liable for this accident which would not have occurred if the guard or fender had been placed there as promised : Webster v. Coal & Coke Co., 201 Pa. 278 ; Reese v. Clark, 198 Pa. 312 ; Foster v. Steel Co., 216 Pa. 279 ; Dowd v. Erie R. R. Co., 70 N. J. Law, 451 (57 Atl. Repr. 248); Belleville Stone Co. v. Monney, 60 N. J. Law, 323 (38 Atl. Repr. 835); Hough v. Ry. Co., 100 U. S. 213 ; Patterson v. R. R. Co., 76 Pa. 389 ; Maines v. Harbison-Walker Co., 213 Pa. 145.

      J. F. Lewis, of Lewis <£ Adler, for appellee.
    No negligence has been shown : Diehl v. Iron Co., 140 Pa. 487; Sykes v. Packer, 99 Pa. 465 ; Phila., etc., Ry. Co. v. Hughes, 119 Pa. 301; Fick v. Jackson, 3 Pa. Superior Ct. 378; Nuss v. Rafsnyder, 178 Pa. 397; Brossman v. Railroad Co., 113 Pa. 490; Bemisch v. Roberts, 143 Pa. 1; Masterson v. Eldridge, 208 Pa. 242.
    Nonsuit was properly entered against the plaintiff in view of his failure to show that there was a defect which it was the duty of the defendant to remedy, or that the machine, its appliances or location, were different or less safe than those in ordinary use : Leonard v. Herrman, 195 Pa. 222; Higgins v. Fanning, 195 Pa. 599.
   Opinion by

Mr. Justice Mestrezat,

This is a very close case and the meager facts disclosed on the trial do not take it out of the realm of doubt. There was but one witness produced and examined at the trial, and his examination on either side was quite unsatisfactory in developing the material facts upon which the case should turn.

The reason of the learned trial judge for directing a non-suit was stated by him as follows: “ The mere happening of an accident to one working about machinery does not prove negligence on the part of the employer or that the appliance was defective; nor does a promise of the employer, or person representing him, that alterations or changes will be made to render a dangerous machine safer bind the employer, unless the machine was less safe than those in ordinary use.” The thought*in the mind of the learned judge seems to have been that the machine about which the plaintiff was engaged was that in ordinary use and hence was not defective; and that the promise made to alter or change it imposed no liability upon the employer for not making the alterations or changes. The position of the learned trial judge may be conceded to be correct, but that was not the case he had before him. As we understand the plaintiff’s case, he alleges that the place he was assigned to perform the work for which he was employed wras unsafe by reason of the failure of the plaintiff to guard and protect him from the machinery which it was his duty to oil, and the necessity for guarding the machinery was brought to the attention of the employer, or a person representing him, who promised to remove the danger by providing the guards necessary to protect the plaintiff while he was engaged at his work. It is not claimed, as we understand, that the ice machine about •which the plaintiff was employed was dangerous or unsafe except in so far as the plaintiff might come in contact with it by reason of the absence of guards along the platform on which he was required to stand while he was performing his duties. There is no contention that the machinery was not fit for the purpose for which it was intended, nor that it was not the machinery ordinarily used for such purpose. The claim is that the defendant erected a platform on which the plaintiff had to enter and oil the ice machine, and that in the construction of that platform the defendant neglected to take the proper and obviously necessary precautions to protect an employee while engaged in oiling the ice machine, the work of the plaintiff. The negligence, therefore, alleged by the plaintiff to have resulted in his injuries is not that the machine about which he was employed was not the one in ordinary use, but that the place in which he was required to perform his duties in oiling the machine was made unsafe by the character of the platform he had to enter in order to perform his duties.

The offers of evidence, the refusal of which is the subject of the third, fourth and fifth assignments of error, do not disclose clearly their purpose, but we assume that the purpose of the offers was to show that the platform in question was not constructed as those used for a similar purpose under like circumstances, and that the usual arrangement of the platform on which the oiler is expected to perform his duties has guards or other protection over the wheel of the machinery which caused the plaintiff’s injuries. We presume the offers were rejected because they were not sufficiently explicit. It was certainly competent to show that the platform constructed by the defendant was not that in ordinary use for such purpose and that its defective construction was the proximate cause of the plaintiff’s injuries : Madara v. Pottsville Iron and Steel Company, 160 Pa. 109. If the platform prepared by the defendant for the use of the plaintiff in the performance of his work was that ordinarily constructed and furnished for the purpose under like circumstances and conditions it would certainly go far towards exculpating the defendant from any negligence on the ground of a defective or insufficient platform. If, on the contrary, it was not in ordinary use, but one which the testimony tended to show was dangerous, it might impose liability upon the defendant. The evidence on the question, if embodied in a proper offer, was, therefore, competent as tending to show failure on the part of the defendant to furnish a reasonably safe place for the plaintiff to perform the duties for which he was employed.

The plaintiff had been engaged at this work long enough to know the dangers, if any, arising from a defective or negligently constructed platform, and it may be that he assumed the risk of those dangers. But he contends that he rebutted the presumption that he assumed such risk by showing that he notified his employer of the dangerous condition of the platform and was assured that the danger would be removed, and that he remained at his work solely by reason of this assurance. lie claims that the danger to which he was subjected was not so imminent and immediate as to require him to refuse to continue his work and, therefore, that the promise of his employer to remove the danger justified him in not at once quitting work. If the evidence was ■ sufficient to establish the facts as claimed by the plaintiff his case was brought within the doctrine of Reese v. Clark, 198 Pa. 312; Webster v. Coal & Coke Company, 201 Pa. 278, and Foster v. National Steel Company, 216 Pa. 279.

The plaintiff was injured when he was attempting to step on the platform, on which he was about to enter for the purpose of oiling the ice machine. Iiis right foot, which he had placed on the platform, slipped, and the foot and the leg were taken into the wheel of the ice machine, and the foot was so badly injured that it had tobe amputated. He must, therefore, beregarded as having been engaged at his work at the time he was injured. It was the duty of the defendant not only to use reasonable care in protecting the plaintiff while he was at work on the platform, but also while he was stepping on it in order to perform his work. In Foster v. National Steel Company, 216 Pa. 279, the plaintiff, who was engaged in unloading cars on an elevator track, fell between the projecting ties on which, he had to walk from one car to the other to reach the car which he was to unload. The defendant was held tobe negligent in not furnishing a safe passageway or platform for the plaintiff, who was injured while he was walking from one car to the other and not while he was engaged in the act of unloading the car.

The question involved in the case is whether the defendant furnished a reasonably safe place for the plaintiff to perform the work for which he was employed. Of course, in determining this question there are several others which will incidentally arise, but we need not now suggest or consider them in the absence of the evidence which will be given -on the trial. It may be well, however, to suggest that the facts should be more fully developed than in the former trial, so that the merits of the case may be intelligently passed upon, not only by the jury, but by the court.

The first assignment of error is sustained, and the judgment is reversed with a procedendo.