text:
    DeCoursey’s Estate.

      Partnership—Partnership accounting—Presumption of payment—Decedents’ estates.

    Before a claim of one partner against the estate of his deceased partner can be considered in the orphans’ court the accounts of the partnership must first be settled in the common pleas.
    A claim by a partner against the estate of his deceased partner on due-bills payable on demand and given by the firm thirty-five years before the death of the decedent, will be disallowed where there is no evidence to rebut the presumption of payment, and where it appears that during the life of the decedent a bill in equity for a partnership accounting had been filed against claimant, a decree pro confesso taken against him, his interest in the partnership sold, and the purchase money paid to him.
    Argued Jan. 18, 1905.
    Appeal, No. 202, Jan. T., 1904, by William K. Barclay, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of Samuel G. DeCoursey, deceased.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Penbose, J., filed an adjudication which was in part as follows :
    Another claim which has been disallowed by the auditing judge was that of William K. Barclay, represented by Judge Gordon and Mr. Hirst, which was presented in the following form:
    “ The claimant seeks to recover from the estate of the said Samuel G. DeCoursey upon the four following instruments of writing:
    “ ‘ Phila., July 1st, 1868.
    “ ‘ Borrowed and received of William K. Barclay, Twenty thousand dollars, payable on demand with interest from date. Thirty days’ notice.
    ‘“$20,000. John K. Barclay.
    “ ‘Interest to May 6th, 1904, $43,016.67.’ ”
    “ ‘ Phila., July 1st, 1868.
    “‘Due William K. Barclay, Fifty-three thousand eight hundred and ninety-seven 83/100 dollars (being balance to his credit on Private Ledger at this date) Payable on demand or in three equal installments—the first installment at sixty days, the second installment at four months, and the third installment at six months after notice, with interest from date. Value received. $53,897.83/100.
    “‘Barclay & Barclay.'
    “ ‘Interest to May 6th, 1904, $115,925.25.’ ”
    “ ‘ Philada., July 15th, 1868.
    “‘Borrowed and received of Wm. K. Barclay, Seven hundred and two 17/100 dollars payable on demand with interest from date, this amount being placed to his credit this day on private ledger.
    “‘•$702 17/100. Barclay & Barclay.
    “‘Interest to May 6th, 1904, $1,508.60.’ ”
    “ ‘ Reed., Philada. Janyl4th/69 of W. K. Barclay Eleven hundred & thirty three 90/100 dollars, which has been credited to his % in Cash Book folio 319.
    “‘$1,133 90/100. Barclay & Barclay,
    “ ‘ Per B. F. Koons.
    “‘Interest to May 6th, 1904, $2,402.35.’ ”
    “‘Which said instruments of writing are charged against the firm of Barclay & Barclay, of which Samuel G. DeCoursey, deceased, was a member, in the books of said firm, to wit: in the ledger account of William K. Barclay.

      “ ‘ William K. Barclay seeks to recover the full amount of said notes, with interest thereon from the respective dates thereof, as the same appears in the said ledger of the said firm.
    ‘“Amount of notes,....... $ 75,733 90
    “ ‘ Amount of interest to May 6th, 1904, 162,852 87
    $238,586 77’”
    In justification of a claim, on its face of such extraordinary character, it was said by Judge Gordon that while an ordinary note or duebill, payable on demand, would have been barred by the statute of limitations six times over, after so great a lapse of time, the law is otherwise where the instrument is payable so many days or months “ after demand,” the statute not beginning to run in such case' until the expiration of the period after demand, and there being no limit as to the time when the demand may be made; that the firm of Barclay & Barclay was composed of John K. Barclay and the decedent, who was his brother-in-law; that the firm dissolved in 1871, John K. Barclay continuing to act as liquidating partner, and that no demand was made by the claimant until after the death of the decedent in 1903.
    That the death of a partner does not relieve his estate from liability for debts of the firm, and that a partnership creditor may claim in the orphans’ court against his estate, without proceeding against the surviving partner or showing his insolvency, cannot, of course, be questioned; but, as has often been said, claims maturing in the lifetime of the alleged debtor, not asserted as legal demands until his death, many years after, come before the orphans’ court discredited on their face by the act of the creditor. Such claims are looked upon with great disfavor, and every intendment will be made against them. If .it be conceded that the law with regard to the statute of limitations is, as between the ordinary debtor and creditor, as asserted by counsel for the claimant, which is at least questionable, it by no means follows that the creditor of a firm, holding its note payable so many days or months after demand, and knowing of its dissolution and that its affairs were in the hands of a liquidating partner for settlement—the firm being, as here, admittedly solvent, and, if not so admitted, the partner whose estate is now before the court being certainly solvent— can forbear to make a demand against the firm or the liquidating partner, and proceed against the estate of a deceased partner thirty-six years after the date of the paper, and recover the debt with interest amounting to more than twice the original principal.
    The word stale, as applied to such a claim, very inadequately characterizes it; and if it is not barred by the statute of limitations, it certainly is affected by the presumption of payment arising from lapse of time, especially when coupled with the failure to demand payment at anytime during more than thirty years while the debtor, who was entirely solvent, lived.
    But the evidence fully explained the course of the claimant. It was demonstrated that he was, himself, a member of the firm of Barclay & Barclay, though he now denies it, and that the amount which he claims was carried to his credit on the books of the firm, blended with other moneys arising from his share of profits, with interest, etc. This was shown not only by the positive testimony of John K. Barclay and by tlio books of the firm, as pointed out by the convincing testimony of Mr. Goldsmith, but by an affidavit of defense filed in October, 1890, by the claimant in a suit upon a promissory note given by him to J. Ii. Grier, in which he alleged that the money was borrowed for the firm of Barclay & Barclay of which he was a member; this being repeated by him when called as a witness at the trial of the suit, when in answer to the question, Are you a member of the firm of Barclay & Barclay ? lie said that he was; that the firm consisted of John K. Barclay, Samuel G. De-Coursey, and himself; that there was no written partnership agreement; that his share of the profits was one third; and that he was to bear one third of the losses. Whether solemn admissions under oath are or are not conclusive as between the party making them and a third person (see Greenleaf on Evidence, sec. 27), need not be considered; they are certainly very strong evidence against him, and completely destroy the credibility of any subsequent statement contrary to what he has thus sworn to. Allegans contraria non est audiendus.
    But this is by no means all: A.letter from the claimant to the decedent, dated September 11, 1875, found among the papers of the latter, was produced in evidence, which was as follows:

      “Dear Samuel: John having expressed his dissatisfaction with the results of the method or want of method with which I have endeavored to retain the semblance of a business, his determination not to perform any part of the labor, and his avowal that he was making more money by speculating in stocks or in some way unknown to me, and that he desired a dissolution of his business relations at least with me, I propose, I, That from and after July 1, 1875, he shall be an inactive or silent partner and draw a two ninths interest, or II. That if he desires to be relieved entirely and you are willing to remain with me, you and myself shall wind up and settle the present business, or III, if he prefers to continue in business and you elect to go with him, that you and he may settle the business with me away. You have witnessed the frequent threats made by him within the past three years, that he was going to dissolve the concern. They were made by a brother and in the midst of other family entanglements. They would Lave been differently met had they come from a stranger. But the memory of them has impaired my confidence in his support and affected my energies. I naturally seek a cessation or relief from them. I would thank you to come to an early conclusion with him and let me know. Yours respectfully, W. K.”
    This appears to have been a mere ebullition, and the business continued, without change, until 1890, when it ceased operations altogether, and from that time the decedent, at least, appears to have had no further connection with it.
    It would seem from the evidence that the business of- the firm in the first instance was the manufacture of linseed oil, but that was gradually abandoned, and after 1871, so far as the auditing judge can understand, their transactions appear to have been only with regard to the purchase and sale of securities.
    That a surviving member of a partnership must proceed by bill in equity in the common pleas for a settlement of partnership accounts, and that he cannot come, without having done this, into the orphans’ court against the estate of his deceased partner, scarcely requires the citation of authority. The subject is considered in Miller’s Estate, 22 W. N. C. 11, affirmed on appeal; Weigley’s Appeal, 136 Pa. 349. See also Weigley v. Coffman, 144 Pa. 489. Hence, if for no other reason, this claim, which involves the settlement of a partnership account, would have to be dismissed for want of jurisdiction.
    But a bill for an account actually was filed by John K. Barclay, in 1896, in the court of common pleas, No. 2, against William K. Barclay and Samuel G. DeCoursey, in which a decree pro confesso was taken against William K. Barclay, and defense was made by Samuel G. DeCoursey, and the matter appears to have been referred to a master. But judgment having been obtained by Mr. Grier in the suit against William K. Barclay, the interest of the latter in the firm of Barclay & Barclay was levied on and subsequently sold to Thomas Ross, the executor of the plaintiff; and after the death of Mr. DeCoursey, viz.: by agreement dated July 11,1903, between the accofintant as administrator, John K. Barclay and Thomas Ross, executor of the purchaser of William K. Barclay’s interest in the firm, the proceeding was settled by the payment by the administrator of $25,000 in full of all demands arising out of the affairs of the late firm, and the suit was discontinued.
    Thus, it would seem, all possibility of right on the part of William K. Barclay as against the firm of which he was a member or as against either of his former partners has been completely eliminated.
    The court dismissed exceptions to the adjudication, Ash-man, J., filing the following opinion.
    The claim whose disallowance is the subject of exception, was based upon three duebills issued by Barclay & Barclay in favor of the decedent, dated in 1868, and a receipt dated in 1869, the aggregate amount of the instruments being $75,733.90, with interest, $162,852.87, making a total of $238,586.77. Two of the duebills were payable on demand, and one on thirty days’ notice. No demand having been shown to have been made, it was claimed that the statute of limitations had not begun to run, and that the estate of the decedent, who, at the date of the duebills, and for years afterwards, was a member of the debtor firm, was liable. The presumption of payment, however, is so violent where a claim has outlived the life of a generation, that without going further, the auditing judge would have been justified in dismissing the demand as hopelessly stale. He rejected it upon the stronger ground that the claimant was himself a member of the firm of Barclay & Barclay. The proof of this fact approached demonstration; it was apparent on the firm’s books, wherein he was credited with a share of the profits; by his own affidavit of defense in an action against him in 1890, where he set up that the money in suit was borrowed for the firm of Barclay & Barclay, and that he was a member of that firm; and by his correspondence with this decedent, in which he hinted at a dissolution of the partnership, and proposed to sell his interest therein to the other partners. The claim, therefore, is made by one partner against the estate of a deceased copartner, and requires, before it can be considered in this court, that the accounts of the partnership should first have been settled in the common pleas. Such an accounting was actually had upon a bill in equity filed in 1895 by John K. Barclay against the present claimant and the decedent, in which a decree pro confesso was taken against the claimant. Before final hearing, the judgment having been obtained against the claimant, his interest in the firm was sold and the sum of $25,000 was paid in full settlement. Further comment would be useless.
    The exceptions are dismissed.

      Errors assigned were in dismissing exceptions to adjudication.

      John G. Johnson, with him A. A. Hirst, for appellant.

      George Wharton Pepper, with him W. B. Bodine, Jr., H. Gordon McCouch and John Cadwalader, Jr., for appellee.
    March 6, 1905 :
   Per Curiam,

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


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Shoenberger’s Estate.

      Attorney at law—Contingent fee—Findings of fact.

    The Supreme Court will not reverse a decree of the orphans’ court awarding half of the fund raised by the sale of real estate to an attorney at law, where it appears from competent and sufficient evidence that the real estate was recovered for the decedent’s estate by the efforts of the attorney under a contract with the administrator by which he was to receive half of the proceeds as a contingent fee.
    Argued Jan. 19, 1905.
    Appeal, No. 339, Jan. T., 1904, by Thomas A. Gummey, Administrator, d. b. n. c. t. a., from decree of O. 0. Phila. Co., April T., 1879, No. 148, distributing fund raised from sale of land in estate of Peter Shoenberger, deceased.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Penbose, J., filed an adjudication which was in part as follows :
    The account is of proceeds of sale of real estate in Cambria county, and the only questions presented for consideration are with reference to claims by William 11. Blair, Esq., for $2,903.45.
    Dr. Peter Shoenberger died in June, 1854, leaving an estate, which in those days was considered a very large one. His will, with codicils, covering fifty closely printed pages, was admitted to probate June 29, 1854, and letters testamentary then issued to John G. Miles, Esq., an eminent lawyer of Hunting-don county, and Michael Berry. He owned real estate in many of the counties of the state, iron works, etc., and after providing in the will and codicils, specifically, for his children, grandchildren and widow, gave the residue of his real estate to his executors, “ to be sold either at public or private sale, whenever they shall consider it most to the interest of my estate to sell the same; and my wish is, that such of my real estate as is likely to increase in value by holding the same for awhile, may not be too hastily sold, but that the same may be rendered as productive as possible,” etc.; the proceeds of sale, and in the meantime the income of the lands being given to, or in trust for, his children and grandchildren, as there set forth.
    Numerous accounts were filed by the executors, which were referred to Joseph A. Clay, Esq., as auditor, before whom questions of difficulty and involving large amounts were raised, and his reports were duly confirmed; so that, practically, the estate was supposed to have been settled and closed many years ago, and the executors and most of the original parties in interest have long since been dead.
    It appears, however, that in 1853 Dr. Shoenberger obtained from the commonwealth patents for two tracts of land in Cambria county, containing, each, from 300 to 400 acres of mountain land, at that time of little value. These tracts, it would seem, were lost sight of by the executors and parties interested in the residuary estate, and in, and prior to 1885, were occupied by two meii named McGough and a man named McConnell, who had been in possession for a long time.
    In 1885 the fact of Dr. Shoenberger’s ownership and of the adverse holding by persons unknown came to the knowledge of William R. Blair, Esq., a member of the bar of Allegheny county. Both of the executors were then dead, but letters of administration d. b. n. c. t. a. had been taken out by John S. Watts, Esq., of Philadelphia, a grandson of the testator; and Mr. Blair, after communicating with Mr. Watts, verbally, and offering to take steps for the recovery of these lands upon the terms suggested by him (Mr. Blair), repeated his proposition in a letter of September 30, 1885, addressed to John S. Watts, administrator, etc., Philadelphia, Penna., as follows :
    “ My Dear Sir: Your favor of September 29 duly received and contents noted. I am equally anxious with yourself that the property should not be lost, but I think it much better for all concerned that we have a definite understanding as to our positions before going ahead. I beg again to call your attention to the proposition I have already made to you and to urge your acceptance thereof. It is as follows, to wit: first, you to give me in return for my services fifty per cent, of the property recovered, provided said fifty per cent, shall not exceed 16,000. Second, you are to advance the necessary funds for costs and expenses, and in the event of loss of suit, to pay the same, but iii the event of our recovery and inability of the other side to pay them, then I to reimburse you to the extent of one-half of same. Third, you are to have the right to discontinue at any time, but in case you exercise that right, then you are to pay all costs and expenses including a reasonable attorney’s fee for services up to the time of discontinuance. These terms are, as I have said, entirely reasonable and proper for you to accept, and it is only just that I should understand distinctly how I stand when acting for the estate. I cannot assume any personal liability for the costs and expenses other than as above. I shall, of course, be responsible for the faithful application of any money you may place in my hands for the purposes of the case, but the case is yours; you are to share the probable benefits equally with me, viz, I risk my time and labor; you ought certainly to be willing to put up a much smaller stake, viz, the expenses necessary to realize. By suggestion which you mention, as to the probable action of the defendants, is of course merely conjectural. If I should turn out to be correct, so much the better for both of us.
    Hoping soon to hear from you, I am very truly yours,
    William R. Blair.”
    To this letter Mr. Watts answered as follows :
    “737 Walnut Street, Philadelphia, October 2nd, 1885. Estate of Peter Shoenberger, deceased. William R. Blair, Esq., Dear Sir: I agree to the terms contained in your letter of September 30th, 1885, in the matter of a claim to certain lands in Cambria County, provided that you shall not in any manner involve me in any personal liability nor charge the estate with costs and expenses beyond the sum of $500.
    “Yours very truly,
    “John S. Watts, Admr.”
    In reply to this, Mr. Blair wrote, October, 7, 1885.
    “.... I do not see how the costs can amount to $500, but if they should, I wish it understood that I do not agree to furnish whatever may be necessary over that amount. You may be sure of one thing, to wit: that I shall put you to no more expense than is necessary. The first thing to be done is to have a survey of the property made so as to identify accurately the amount of our claim. I think my engagements will permit me next week, or if not then, the following week, to go to Cambria County and have the work begun. I do not know what the survey will cost, but I suggest that you send me $100 for the purpose. As I said in my last, I shall account to you faithfully for every dollar you send me.
    “ Confidently hoping that our efforts may turn out profitably, I am, very truly yours,
    “ William R. Blair.”
    The answer to this October 8, 1885, was as follows:
    “William R. Blair, Esq., Dear Sir: Enclosed you will find check for $100 on account of costs and expense in matter of claim to survey lands in Cambria County.
    Yours very truly,
    “ John S. Watts, Administrator.”
    After this, Mr. Blair made various visits to Cambria county, finally meeting the McGoughs and McConnell, and the result was that they agreed to give, and did give a quitclaim deed, and the title of Dr. Shoenberger’s estate was thus made complete.
    The details of what was done by Mr. Blair are set forth in his testimony, and need not be repeated. In a letter dated November 5, 1885, he made report to Mr. Watts, as follows :
    “John S. Watts, Esq., Administrator, etc., Dear Sir: I am happy to be able to report that our matter in Cambria County has progressed favorably even beyond my expectation. I have already made three trips up there; on the first I spent two days and a half obtaining witnesses. A week later I had an interview, and rather a lively one it was, with the parties in possession of two of the tracts named McGough, two of them, and one named McConnell, and on the third trip last week I brought down the game by obtaining from them a release and surrender of possession of the two tracts then in their possession. As to the remaining tract, I have not yet got the evidence down fine enough to interview the parties in possession. I am very busy here just now and will not be able for some time to do anything further for two or three weeks, but so soon as I can I will go ahead and advise you of the result. I have instructed a man named Nepper, who I am informed is a reliable man, to take and hold possession in your name as soon as the McGoughs get their trifling effects off the ground, which they promise this week. I therefore presume you are now in actual possession of the tract. I agreed to let McGough have some shingles, three thousand in number, worth probably eighteen or twenty dollars, which they had made, they to give me their survey which would have cost us fifteen or twenty dollars at least. I wish you would send me a copjr of Dr. S’s will for a little while if you cannot give me one. The two tracts recovered contain about six hundred acres, I believe.”
    To this Mr. Watts answered, November 10, 1885:
    “. . . . I am glad to hear you are progressing favorably with the matter you have in charge. The will of Peter Shoenberger, deceased, is recorded at Pittsburg. I have only one copy and that is in constant use. I regret I cannot spare it for you.
    “ Yours very truly,
    “John S. Watts.”
    A short time afterwards, Mr. Blair received notice that there were unpaid taxes for 1883 and 1884, amounting to $134.80, and having informed Mr. Watts of this, received his check for that sum with which he paid the taxes and obtained the necessary receipt.
    Having thus performed his part of the contract, Mr. Blair was anxious that the property should be sold, and the amount to which he was entitled ascei'tained. Offers, at various times, were-received by him, which he always reported to Mr. Watts, so long as he continued to act as administrator, and afterwards to Mr. Gummey, who succeeded him, the last offer being from Fishel Gross, who, as the auditing judge understands, was in some way connected with the final purchase.
    Mr. Watts’s health compelled him to give up the position of administrator and go abroad. He is now living in Rome.
    The arrangement thus made by Mr. Watts with Mr. Blair appears to have been well known to the beneficial owners of the residuary estate; and it would seem that the reason for Mr. Gummey’s becoming administrator d. b. n. c. t. a. was that these lands might be disposed of.
    Probably because they were not thought to have much value, or for some unexplained reason, the taxes, after possession had thus been obtained, were not paid by the estate, and they were sold at treasurer’s sale and bought by the county. In 1892 they came in some way into the possession of a man named Fulton, and at a later date, in order to effect the sale, an ejectment had to be brought.
    For reasons which are stated by Mr. Blair in his testimony, it was not deemed expedient to place the release which he obtained from the McGoughs and McConnell on record; but in November, 1897, he sent it to Mr. Gummey, who had then become the administrator d. b. n. c. t. a., and received the following reply, dated November 6, 1897:
    “Dear Sir: Yours of the 4th instant inclosing release of the McGoughs to the David Evans and Charles Evans tracts, received, also copies of original patents. We are pushing the Fultons to a settlement as fast as circumstances will admit, so as to settle with Mr. Gross for the David Evans tract. As soon as this is done, I will file the account, of which you shall have due notice. I thank you for these papers. I think they will greatly facilitate a settlement with the Fultons.
    “Yours truly,
    “Thomas A. Gummet.”
    It should be stated that the third tract, referred to in Mr. Blair’s letter to Mr. Watts, of November 5, 1888, appears never to have belonged to Dr. Shoenberger—at least the evidence of his ownership could not be obtained.
    Under the law of Pennsylvania, which permits an agreement by counsel for contingent compensation (Perry v. Dicken, 105 Pa. 88; Mumma’s Appeal, 127 Pa. 474; Sloan’s Estate, 161 Pa. 237), it cannot be doubted that Mr. Blair, having fully performed all that he was employed to do, may recover, from the estate of the decedent, which has reaped the benefit, the stipulated amount. The facts with regard to the lands in question were fully understood by the administrator d. b. n. c. t, a., who was himself a man of great intelligence and an accomplished lawyer, and by the persons beneficially interested, with whom it is fair to suppose, he consulted—some of whom, at least, as the testimony shows, had full knowledge and acquiesced in the arrangement. The lands would inevitably have been lost if it had not been made; the will gave to the executors, and consequently to the administrator with the will annexed, the fullest power with regard to the residuary real estate; and the gain has been very considerable. There was, and could have been, no doubt or misunderstanding as to the terms offered by Mr. Blair, and they were accepted, deliberately and after the fullest opportunity for consideration. The contract was in writing, and bound the lands in the hands of the promisee and of those availing themselves of the benefit of what he did, and taking as volunteers.
    The amount received from the sale of the two tracts was $7,747.50, of which one half is $8,873.75. From this will be deducted, according to a statement presented by counsel for Mr. Blair, one half of the amount of taxes paid and expenses necessary in completing the title papers on the sale of the property, as shown by the account, viz.: $697 ; balance of cash received for expenses (making survey), $48.30; and amount of expenses agreed by claimant that he should be liable for, $250; making in all, $995.30, and leaving a balance due of $2,878.25, which, with interest at two and one half per cent (rate of interest on deposits) during the time the purchase money has been held, will be awarded to the claimant.
    On a petition to open adjudication, Penkose, J., filed the following opinion:
    A petition having been presented to the auditing judge, asking that the adjudication filed March 21, 1904, be opened on the ground that it appeared on the face of the deed from Patrick McGough et al. to John S. Watts, administrator d. b. n. c. t. a. of Peter Shoenberger, that it was executed before the agreement between William R. Blair, Esq., and John S. Watts, administrator, etc., and, as a necessary consequence, that the agreement was, therefore, without consideration on the part of Mr. Watts, inasmuch as the estate was then the owner of lands to which the agreement related.
    An answer having been filed on the part of Mr. Blair, the auditing judge sat for the purpose of hearing testimony May 7, 1904, George W. Reed, Esq., and Thomas A. Gummey, Esq., attending on behalf of the estate of Dr. Shoenberger, and Walter George Smith, Esq., and William R. Smith, Esq., on behalf of William R. Blair, Esq., who also attended in person and was examined as a witness.
    It is unquestionably true that the deed referred to bears date October 23, 1884, which was nearly a year before the agreement between Mr. Watts and Mr. Blair referred to in the adjudication upon which the claim presented by the latter was allowed; but it is equally clear that the date was not 1884, but 1885, and that the figure 4 was simply the result of a clerical error. Apart from the fact that an inspection of the acknowledgment of the deed by Thomas A. McConnell, one of the grantors, shows, to the eye of the auditing judge, at least, that the date was October 30, 1885, though the figure 5 has been blotted and the figure 4 written over it, the evidence as to the actual date of its execution was clear and convincing, based as it was not only on the oral testimony but upon very many letters which were produced in evidence, which could not by any possibility have been fabricated. The deed was drawn by the claimant on October 23, 1885, at Wilmore, Pennsylvania, in the store in which W. H. Robinson, the justice of the peace, before whom it was acknowledged, was employed as manager, and was then signed and acknowledged, by Patrick and Daniel McGough, two of the grantors. Mr. Blair stated that he had drawn it hastily, and that he could not explain how he happened to make a mistake in the insertion of its date. Under any circumstances, a deed speaks from the date of its delivery and a mistaken date is not material.
    The auditing judge does not feel called upon to refer in detail to the testimony, it is enough to say, what in effect has already been said, that the case, so far as the question of the actual date of the deed is concerned, is absolutely free from doubt. The evidence has all the strength of mathematical demonstration.
    It having been thus shown that the agreement preceded the deed, the question as to the right of the claimant to recover the stipulated compensation has already been decided by the auditing judge; and whether he has decided correctly or incorrectly is to be determined by the court in banc upon exceptions to the adjudication.
    The court in bane in a brief opinion dismissed the exceptions.

      Errors assigned were in making the award to William R. Blair, Esq.

      Dallas Sanders, with him Thomas A. Gvmimey, for appellant.

      Walter George Smith, with him William Rudolph Smith, for appellee.
    March 6, 1905:
   Per Curiam,

This case presents nothing but questions of fact which have been convincingly stated by the auditing judge and the decree is affirmed on his opinion.


author: Mb. Justice Fell,

text:
    Quigley, Appellant, v. Thompson.

      Evidence—Cross-examination—Scope of 'cross-examination.

    Cross-examination must be confined to matters stated in the examination in chief and independent matters of defense must not be introduced by it. Where matters of defense have been brought out by an improper cross-examination they should be considered as having been introduced by the defendant, and they cannot be considered by the court as ground for a compulsory nonsuit; but an incident of a transaction proved and circumstances connected with it, which qualify or destroy the effect of the testimony in chief may be brought out in cross-examination.
    A party is entitled to bring out any circumstances relating to a fact which an adverse witness is called to prove.

      Negligence—Master and servant—Automobiles—Evidence—Cross-examination.

    In an action against the owner of an automobile to recover damages for personal injuries, where the chauffeur of the defendant is called by the plaintiff to show that he was in the employ of the defendant, and to identify the car, it is competent for the defendant on cross-examination to develop by the witness the fact that at the time of the accident he was using the machine in the prosecution of his own business and not in the business of his employer, and that in so doing he was acting contrary to the orders of his employer.
    Argued Jan. 19, 1905.
    Appeal, No. 344, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T-, 1903, No. 3762, refusing to take off nonsuit in case of Daniel Quigley v. John W. Thompson.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.

      At the trial- it appeared that on April 17, 1903, plaintiff was injured at Broad and Brandywine streets in the city of Philadelphia by being struck by the defendant’s motor car. Plaintiff called Florida, the chauffeur, to identify the machine and to show that he was employed by defendant. On cross-examination the witness was asked these questions, both of which were allowed:
    (a) “ When you testified that you were running that machine, between five and six, April 17, is it not a fact that you were operating that machine on your own business and contrary to the instructions of John W. Thompson ? ”

      (b) “ I asked you whether, in point of fact, you were operating contrary to orders of John W. Thompson? ”
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Errors assigned were (1) refusal to take off nonsuit; (2) rulings on evidence, not quoting the bill of exceptions.

      Theo. Cuyler Patterson, with him Leroy N. King and Duncan L. Buzby, for appellant,
    cited as to the cross-examination: Longenecker v. Penna. R. R. Co., 105 Pa. 328 ; Helser v. McGrath, 52 Pa. 531; Jackson v. Litch, 62 Pa. 451.

      George Quintará Horwitz, with him E. Wilbur Kriebel, for appellee,
    cited as to the cross-examination : Bohan v. Avoca Borough, 154 Pa. 404; Connor v. Penna. R. R. Co., 24 Pa. Superior Ct. 241; Osborne v. Walley, 8 Pa. Superior Ct. 193 ; Hunter v. Voigt, 8 Pa. Superior Ct. 484; McNeal v. Ry. Co., 131 Pa. 184; Jackson v. Litch, 62 Pa. 451; Glenn v. Traction Co., 206 Pa. 135; Bank v. Fordyce, 9 Pa. 275.
    March 6, 1905 :
   Opinion by

Mb. Justice Fell,

The only question raised by this appeal that need be considered is whether the fact upon which a nonsuit was based was developed by an improper cross-examination of the plaintiff’s witness. The action was to recover damages for injuries caused by being struck by the defendant’s motor car. The plaintiff called as his witness the chauffeur who at the time of the accident was operating the ear, and examined him at length to show that at that time he was in the employ of the defendant, and to identify the car by proof of its number, size, equipments and general appearance. On cross-examination this witness was asked whether at the time of the accident he was not using the car for his own purposes and in violation of the orders of the defendant. He answered under objection: “ I was operating the machine for my own personal use on an errand for myself. Mr. Thompson did n’t know anything about it whatever. I had no orders from him. I took it out, breaking one of the rules, which I had no business to do.”

While the general principles applicable to the subject are clearly defined, it is in practice often difficult to determine the exact limits of proper cross-examination. Its range must of necessity rest largely in the discretion of the trial judge. Cross-examination must be confined to matters stated in the examination in chief and independent matters of defense must not be introduced by it. Where matters of defense have been brought out by an improper cross-examination they should be considered as having been introduced by the defendant, and they cannot be considered by the court as ground for a compulsory nonsuit: Hughes v. Westmoreland Coal Co., 104 Pa. 207 ; Sullivan v. New York, etc., Railroad Co., 175 Pa. 361. But an incident of a transaction proved and circumstances connected with it, which qualify or destroy the effect of the testimony in chief, may be brought out in cross-examination : Bank v. Fordyce, 9 Pa. 275 ; Jackson v. Litch, 62 Pa. 451; McNeal v. Pittsburg, etc., Railway Co., 131 Pa. 184; Glenn v. Phila., etc., Traction Co., 206 Pa. 135. In the former case it was said by Gibson, C. J.: “A part}1" is entitled to bring out any circumstances relating to a fact which an adverse witness is called to prove.”

The whole trend of the examination in chief of this witness Avas to establish facts and circumstances Avhich would make the defendant answerable on the ground that the negligence alleged Avas that of his servant acting within the scope of his employment. It Avas competent in cross-examination to develop by the witness the fact, which qualified his testimony, that at the time of the accident he was using the machine in the prosecution of his own business and not in the business of his employer.

The judgment is affirmed.


text:
    Commonwealth v. Andrews, Appellant.

      Constitutional law—Police power—Oleomargarine—Restraining order— Quarter sessions—Act of May 29, 1901, sec. 1, P. L. 327—Equity—Trial by jury.

    Section 9 of the Act of May 29, 1901, P. L. 327, conferring jurisdiction upon the court of quarter sessions to issue a restraining order enjoining a defendant from further selling oleomargarine without a license, is a constitutional exercise on the part of the legislature of the police power, of the state. The proceeding authorized by the section is in no way equitable in character, and such as should be within the jurisdiction in equity vested in the court of common pleas.
    No question of the right of trial by jury arises in such a proceeding, and even if there were, there is nothing in the constitution which prohibits the legislature from declaring new offenses and defining the mode by which the guilt of persons accused thereof may be determined.
    Argued Jan. 20, 1905.
    Appeal, No. 129, Jan. T., 1904, by-defendant, from judgment of Superior Court, Oct. T., 1903, No. 169, affirming order of Q. S. Pliila. Co., March T., 1903, No. 724, restraining defendant from further violating the oleomargarine act in case of Commonwealth v. W. N. Andrews.
    Before. Mitchell, C. J., Dean, Fell, Bbown, Mestbézat, Potteb and Elkin, JJ.
    Affirmed.
    Appeal from the Superior Court.
    From the record it appeared that W. N. Andrews, the defendant, was arrested on a warrant charging him with the sale of oleomargarine without a license, in violation of the Act of May 29, 1901, P. L. 327. He was held for court, and on April 3, 1903, the grand jury found a true bill. On May 7, 1903, an agent of the dairy and food commissioner filed a petition in the court of quarter sessions of Philadelphia county, wherein the indictment had been found, alleging that subsequent to the commencement of said criminal proceedings the defendant had again violated the act by selling oleomargarine without a license, and praying for the issuance of a restraining order enjoining the defendant from further violating the provisions of the act. The court granted a rule on the defendant to show cause why the order should not be made, and after hearing and argument, on June 24, 1903, made the rule absolute and issued the injunction. Exceptions were filed to said decree, which exceptions were dismissed and the decree confirmed, and an appeal was taken to the Superior Court.
    The opinion of the Superior Court by Henderson, J., was as follows :
    The defendant was indicted for the sale of oleomargarine without a license, in violation of the Act of May 29, 1901, P. L. B27. Before the trial of the defendant an agent of the dairy and food commissioner filed a petition in the court of quarter sessions of Philadelphia county alleging that subsequently to the commencement of said criminal proceeding the defendant had again violated the act of assembly by selling oleomargarine without a license, and praying that the court issue a restraining order enjoining the defendant from further violation of the statute as provided in section 9 thereof. The court granted a rule on the defendant to show cause why the order should not be made, and after a hearing the rule was. made absolute.
    The defendant excepts to the order of the court on two grounds :
    First, because the court of quarter sessions has not jurisdiction to grant relief in the nature of a restraining order; and, second, that the act is in violation of the constitution of the state, in so far as it authorizes the court to grant such an order.
    1. Unless the first objection is involved in the second, the appellant’s contention is untenable, for by the very terms of the act of May 29, 1901, the court of quarter sessions is invested with jurisdiction to make the order complained of. Judicial power is vested in the court of quarter sessions by Section 1, of article V, of the constitution, but the jurisdiction of the court is not defined therein. Its jurisdiction is fixed by the common law and the statutes declaring its powers. It is clearly within the power of the legislature to enlarge or restrict that jurisdiction. Unless, therefore, some limitation is found in the constitution, the section of the act referred to is not invalid, for the reason that it vests in the court of quarter sessions power to issue a restraining order to prevent the commission of a misdemeanor.

      2. The second objection is based upon the assumption that the proceeding complained of is equitable, and that jurisdiction in equity is vested in the court of common pleas, and that such jurisdiction is exclusive. The assumption that the proceeding complained of is equitable leads to an erroneous conclusion. The statute was enacted under the police power of the commonwealth for the preservation of the public health and the prevention of fraud on the public. This power, as was said in Bartemeyer v. Iowa, 85 U. S. 129, “ extends to all regulations affecting the health, good order, morals, peace and safety of society, and under it all sorts of restrictions and burdens are imposed, and, when they are not in conflict with any constitutional principles, they cannot be successfully assailed in á judicial tribunal.”
    It was held in Jacobs’ Case, 98 N. Y. 98, that “generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and when its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts.”
    On the subject of this power, it was said in Commonwealth v. Bearse, 132 Mass. 542, “The legislature is largely the judge of its own powers with reference to these matters.”
    The promotion of public morals and public health is a chief function of government, to be exercised at all times as occasion may require. The methods by which the result may be accomplished depends upon the circumstances of the particular case, and the largest legislative discretion is allowed : Beer Co. v. Mass., 97 U. S. 25.
    The agencies to care for the public interests in these respects are created by the people in their sovereign capacity, and are authorized to exercise their power according to their discretion within the limits of their general authority: Stone v. Miss, 101 U. S. 814; Powell v. Commonwealth, 114 Pa. 265.
    The remedy provided by the ninth section of the statute is not a proceeding in equity, nor would the facts in legislative view give jurisdiction in equity. The remedy provided is in consonance with the principle of preventive justice, which had early recognition in the common law, and which was said by distinguished authority to be “ preferable in all respects to punishing justice: ” 4 Bl. Comm. Chapter 18.
    By the statute of 84, Edward III, chapter 1, magistrates were authorized to bind over persons not of good fame not only to keep the peace, but also for good behavior, and to commit to jail in default of bail, and the words of the statute have been held to apply to many classes of persons guilty of criminal misbehavior, among which are cheats. This statute is in force in this state : 3 Binn. 612.
    It is not necessary that a criminal charge be preferred in order that security .for good behavior may be demanded, and even after an acquittal on an indictment the trial judge may, on the evidence presented on the trial, require the defendant to give bail for good behavior, and commit to jail for nonebmpliance with the order: Bamber v. Commonwealth, 10 Pa. 339.
    In principle and purpose the proceedings authorized by the act of 1901 are not different from that provided for by the statute of 34, Edward III, or the surety of peace provision of the crimes act of 1860. No questions of property are involved in the proceeding, nor is the appellant deprived of any right secured to him by the constitution or laws of the commonwealth. He is in effect put under pledges to well behave with respect to conduct in violation of a criminal statute, and the learned judge had authority on cause shown to make the order complained of. It is not suggested that the action of the court was not based upon proper evidence, and we are only concerned therefore with the question of the power of the court.
    No question of the right of trial by jury arises in the case. The restraining order is not a punishment for crime, but, as already stated, a prevention of crime. If, however, the provisions of the statute complained of were penal in its character, the objection could not prevail. “ The purpose of the constitution undoubtedly was to preserve the jury trial wherever the common law gave it, and, in all other cases, to let the legislature and the people do as their wisdom and experience might direct: Van Swartow v. Commonwealth, 24 Pa. 131. There
    is nothing in the constitution which prohibits the legislature from declaring new offenses and defining the mode by which the guilt of persons accused thereof may be determined. The exceptions are overruled, and the order affirmed.

      Error assigned was the judgment of the Superior Court.

      Joseph M. Smith, with him John L. Burns, for appellant.

      William Brown, Jr., Thad. L. Vanderslioe and Charles L. Brown, for appellee, were not heard.
    March 6, 1905 :
   Per Curiam,

The judgment is affirmed on the opinion of the Superior Court.


author: Pee Curiam,

text:
    Flitcraft v. Commonwealth Title Insurance and Trust Company, Appellant.

      Deed—Trustee—Forgery—N otice—M orlgage—Equity.

    On a bill in equity to declare a deed null and void and for the cancellation of two mortgages, it appeared that the plaintiff was induced by false representations of an attorney at law to convey to the latter as trustee certain unincumbered real estate. In addition to the word “trustee” after the name of the grantee in the deed, the attorney gave to the grantor an unacknowledged declaration of trust. The attorney took the deed to a trust company and stated that he was the owner of the premises, and requested a loan on a mortgage. He was told that no money could- be loaned to him individually on account of the word “trustee” in the deed. He thereupon took the deed, erased the word “trustee” filling in the blank space with a red line. The erasure was visible on the face of the deed. Subsequently he made a second application to the trust company for a loan on a mortgage, and was this time successful. The trust company placed the deed on record, and insured the title for a building association which made to the attorney a loan on a second mortgage on the same premises. Thereafter the attorney conveyed the reversion to a third party for a small consideration. The bill in equity was filed against the trust company, the building association, and the person to whom the reversion had been conveyed. Held (1), that the trust company was visited with notice that the attorney was a mere trustee; (2) that the word “trustee” although physically effaced, was in legal contemplation ever present in the deed, and put the defendants upon inquiry; (3) that the word “trustee” was not a mere description of the person; (4) that the alteration of the deed was a forgery and the deed thereby avoided; (5) that complainant was under no duty to make tender to the person to whom the reversion had been sold; (6) that complainant was entitled to equitable relief against all three of defendants.

      Argued Jan. 20, 1905.
    Appeals, Nos. 309 and 342, Jan. T., 1904, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1902, No. 2917, on bill in equity in case of Helen M. Flitcraft v. Commonwealth Title Insurance and Trust Company, The Commonwealth Title Insurance and Trust Company, Guardian of Horace and Mary Dubree, and the Ideal Building and Loan Association, Arthur W. Depue and Henry N. Robison.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for the cancellation of mortgages and a deed.
    Barratt, J., filed the following opinion:
    findings of fact.
    In May, 1902, the complainant was the owner in fee simple in severalty of premises 714 South Tenth street, Philadelphia, and in exclusive possession of the same bjr her tenant, and the same were free from incumbrance. Said tenant continued to occupy the premises until October 24,1902, and since that date the complainant has held legal possession. The value of the premises was, and is, about $5,400.
    Early in June, 1902, Plenry N. Robison, a member of the Philadelphia bar and one of the defendants, acting for a supposititious client (there was no such person as John Polio, the alleged purchaser), offered the complainant $5,400 for the premises, and the complainant entered into an oral agreement with Robison to convey the same to his client for the sum named, settlement to be made and possession delivered about September 1, 1902.
    About this time (early in June), Robison and one Edmund F. Harte, a scrivener, formed a conspiracy to defraud the complainant of the premises in the following manner: Robison was to fraudulently induce the complainant to convey the premises to him, and then without her knowledge or consent was to borrow money on them and in conjunction with Harte use this money for their own schemes and purposes, hoping, it seems, to make good the amount before the time fixed for the settlement, and thereby cover up the crime.
    In pursuance of this fraudulent compact between Robison and Harte, Robison falsely represented to the complainant that the premises were subject to an old ground rent that had been paid off but never extinguished by a formal conveyance; and advised her to deed the premises to him as trustee for the purpose of having the pretended flaw in the title removed by decree of court. The complainant, having known Robison for some years, adopted his suggestion without consulting-counsel, and on June 18, 1902, executed and acknowledged a deed of the premises to Robison as trustee, and left the same with Robison to be recorded. This deed does not set forth the terms of any trust but at the time of execution contained the word “ trustee ” after the grantee’s name both in the indorsement and in the following clause in the body of the deed: “ This Indenture made the 18th day of June, 1902, between Helen M. Flitcraft of the City of Philadelphia, single woman, of the one part grantor, and Henry N. Robison, of the same place, trustee, of the other part grantee.”
    At the time of the delivery of said deed, Robison gave to the complainant a written acknowledgment that he held the property for her use and benefit and to and until she desired the same reconveyed to her or to anyone she may designate.
    The sole object of the conveyance to Robison as trustee, as explained by Robison and understood by the complainant, was to procure the extinguishment of the alleged ground rent by decree of court, whereupon Robison was to reconvey the premises to the complainant or join with her in making title to the purchaser. Robison afterwards informed the complainant that he had made application to the court for the purpose named and that the decree had been entered; but in point of fact no such proceedings were taken, or even contemplated, and the whole matter of the ground rent was a false pretense invented by Robison and Piarte to secure control of the property.
    None of the consideration money mentioned and receipted • for in the said deed has been received by the complainant, excepting the sum of $200, for which sum Robison sent the complainant his check on July 19, 1902, as “ the amount paid on account of purchase of premises 714 South Tenth street.” This money was paid by Robison out of his own resources.
    On June 18, immediately after the execution and acknowledgment of the deed to Henry N. Robison, trustee, Robison and Harte took said deed to the office of the Commonwealth Title Insurance and Trust Company, one of the defendants, and Robison handed the deed to William H. Gretzinger, the application clerk of said company, for the purpose of having the same recorded. Mr. Gretzinger had theretofore passed upon the form of the deed, and knew that the deed was executed, and was aware that Robison had applied to said company for a loan upon the premises. After an inspection of the deed, Mr. Gretzinger returned it to’ Robison, with the explanation that the company would not lend money upon a trustee’s title unless the power to mortgage was shown; and that, if the premises belonged to Robison as he claimed, he had better scratch out the word “ trustee,” and the deed would do.
    On the afternoon of the same day, June 18, in an office adjoining Robison’s in the Drexel Building, Harte began and Robison completed the erasure of the word “trustee” from the deed, both in the body thereof and in the indorsement. Said erasure was made without the knowledge or consent of the complainant and with fraudulent intent. The fact of the erasure is manifest upon the face of the deed.
    Two days thereafter, on June 20, Robison and Harte left the deed, forged as aforesaid, with Axel Teisen, the settlement clerk of the Commonwealth Title Insurance and Trust Company, and said company, without making any investigation or inquiry concerning said deed or the title of Robison thereunder, lodged the same for record.
    On the said 20th day of June, Robison, in his own name, without the knowledge or consent of the complainant, executed a mortgage of the premises to the Commonwealth Title Insurance and Trust Company, guardian of Horace and Mary DuBree, and received from the company through the said Axel Teisen in settlement therefor the sum of $3,000, less costs and charges, which money was divided between Robison and Harte and fraudulently appropriated by them. Said mortgage was lodged for record by the said company.
    On July 16, 1902, Robison, in his own name, without the knowledge or consent of the complainant, executed a second mortgage of the premises to the Ideal Building and Loan Association, another of the defendants, and received through the Commonwealth Title Insurance and Trust Company in settlement therefor the sum of $1,200, less costs and charges, which money Robison fraudulently appropriated to his own use. The title of the Ideal Building and Loan Association as said mortgagee was insured by the Commonwealth Title Insurance and Trust Company and the mortgage lodged for record by the said company.
    On August 7, 1902, Robison, in his own name, without the knowledge or consent of the complainant, executed a conveyance of the premises in fee to Arthur W. Depue, another of the defendants, and received in settlement therefor the sum of $200, which money Robison fraudulently appropriated to his own use. The deed to Depue was acknowledged on August 7, but not recorded until September 2, 1902. At the time of the last conveyance, and as part of said transaction, the said Depue agreed to reconvey the premises to Robison upon payment of $225 within sixty days. But no evidence was offered to show that Robison had exercised his option to repurchase.
    About September 1, 1902, the date fixed for the settlement under the agreement of sale, the complainant first learned of the forgery of the deed and the execution of the fraudulent mortgages and conveyance; and, thereupon, the complainant notified the two mortgagees and Mr. Depue of the frauds perpetrated, and made formal demand upon them to deliver up the said mortgages and conveyance for cancellation and to annul the same of record. And, upon their refusal so to do, the complainant filed the present bill.
    FINDINGS OF LAW.
    The defendants made no inquiry whatever. They contend that the word “trustee” is mere descriptio personae, like “baker” or “plumber,” and, therefore, surplusage. But we cannot accept this view, and find the word “ trustee ” to be an essential feature of the deed; and as grantee thereunder Robison had no power, express or implied, to mortgage or convey the premises. In dealing with Robison, the defendants were bound to know the extent of his authority, and the most superficial inquiry would have led up to the contemporaneous writing of June 18, and the circumstances surrounding its execution, and the whole conspiracy would have been laid bare. That the word “ trustee ” constitutes notice is sustained, by the authorities:
    In matters relating to mortgages and stocks: Duncan v. Jaudon, 82 U. S. 165; Brayard v. Farmers’ and Mechanics’ Bank, 52 Pa. 232; Swan v. Produce Bank, 24 Hun, 277; Sturtevant v. Jacques, 96 Mass. 523; Shaw v. Spencer, 100 Mass. 382; Smith v. Burgess, 133 Mass. 511..
    In deeds of real estate (a fortiori) : Union Pacific Railroad Co. v. Durant, 95 U. S. 576; Mercantile National Bank v. Parsons, 54 Minn. 56 (55 N. W. Rep. 825) ; Johnson v. Cal-nan, 19 Colorado, 168 (34 Pac. Rep. 905).
    We have carefully read the cases cited in behalf of the defendants purporting to establish a contrary doctrine, but find nothing in them to warrant the conclusion sought to be deduced therefrom.
    The defendants further contend that the word “ trustee ” was not notice because of the statute of frauds. Were they bound to take cognizance of a trust that fell under the ban of the statute ? The argument would prove too much; for, in thus taking title from a trustee, the defendants assumed the burden of establishing the terms of the trust in order to show the trustee’s power to convey. In the present case, however, the trust is not only manifested by writing (the contemporaneous writing set forth in paragraph VI of the bill), but comes directly within the terms of the proviso and might be established by parol: Act of April 22, 1856, sec. 4, proviso, P. L. 532.
    And in express confirmation of the notice conveyed by the term “ trustee ” was the complainant’s possession of the premises by her tenant. The conveyance to Robison as trustee was consistent with such possession, and the defendants were thereby again charged with the duty of inquiry, and due inquiry must have revealed the fact that Robison could confer no title : Bispham’s Equity (5th ed.), page 381; Hood v. Fahnestock, 1 Pa. 470; Rowe v. Ream, 105 Pa. 543.
    2. The alteration of the deed was a forgery, and the deed was thereby avoided, and could not thereafter be used in any way whatsoever to the prejudice of the complainant.
    That the alteration was fraudulent in design is proven beyond a doubt; that it is material in effect is equally clear. The removal of the word “ trustee ” destroyed the identity of the instrument and altered its legal import, changed the relationship of the parties and varied the mode of proof concerning their rights, and opened the way to fraud and resulted in actual damage : Getty v. Shearer, 20 Pa. 12; Neff v. Horner, 68 Pa. 327; Craighead v. McLoney, 99 Pa. 211; Wallace v. Harmstad, 15 Pa. 462, 467.
    The legal effect of the forgery was twofold. It rendered the deed void in the hands of Robison (“ as to any benefit to be derived to the party who altered it:” Withers v. Atkinson, 1 Watts, 236, 250), so that Robison could not thenceforth use the deed as the basis of any title or charge in prejudice of the complainant’s right; and it made the deed incompetent as evidence, so that the defendants could not resort to the same as a necessary link in the chain of their title. The argument is broader than the needs of the present case. Here, as we have seen, Robison had no power of disposition under the deed in its original state; but, even if the deed had given him such power, his right to exercise it would have been forfeited and nullified by the act of forgery: Arrison v. Harmstead, 2 Pa. 191; Wallace v. Harmstad, 15 Pa. 462; Wallace v. Harmstad, 44 Pa. 492; Reck v. Clapp, 98 Pa. 581; McIntyre v. Velte, 153 Pá. 350.
    3. In all the matters mentioned, the complainant acted in a careful, prudent, and businesslike manner. She was not bound to foresee the attempted exercise of a power not conferred, nor the perpetration of a series of crimes. On the other hand, the defendants, although innocent of moral wrong in the transactions referred to, were negligent therein, and their negligence contributed to the successful prosecution of the said frauds. Indeed, it is safe to say that neither the mortgages nor the deed in question could have been foisted upon the defendants if they had exercised common caution.
    4. The complainant is under no duty to make tender of or account for the $200 paid to her by the defendant Robison. This money belonged to Robison, who not only makes no demands therefor, but admits the charge of actual fraud in the transaction in which the same was paid: McCaskey v. Graff, 23 Pa. 321; Duff v. Wilson 72 Pa. 442.
    5. The affidavit made by the complainant in a prosecution before Magistrate Eisenbrown charging the defendant Robison with embezzlement as trustee, has no bearing upon the rights of the parties in the present proceeding. The legal result of Robison’s act is for the court ;■ and it is clear that the defendants cannot rest their claims upon a ratification of f orgery, which the policy of the law forbids: Shisler v. Vandike, 92 Pa. 447; Building Assn. v. Walton, 181 Pa. 201.
    6. The mortgagees and the grantee Depue have no title for the reasons hereinabove stated; but the title of the defendant Robison as trustee remains. For it is not contended that the forgery of the deed after delivery would operate to revest the title in the grantor. But, the rights of innocent purchasers not being in question, it is clear that the deed to Robison, procured as we have seen by fraud, should not be allowed to stand, and the same is hereby declared null and void.
    The relief herein prayed for is, therefore, granted. And counsel will prepare and submit the necessary decrees in accordance with the views expressed in the foregoing opinion. The costs to be paid by the parties defendant in equal shares. On exception Stxlzberghek, P. J., filed the following opinion: We have carefully considered the numerous exceptions to the findings and conclusions of the trial judge. The fourth exception of the Commonwealth Title Insurance and Trust Company is to the following finding of fact:
    “ After inspection of the deed, Mr. Gretzinger returned it to Robison, with the explanation that the company would not lend money upon a trustee’s title, unless the power to mortgage was shown; and that if the premises belonged to Robison, as he claimed, he had better scratch out the word ‘ trustee ’ and the deed would do.”
    This finding was based upon the uncorroborated testimony of the forger and was flatly contradicted by Gretzinger, and not sustained by the evidence of the only other witness who could possibly have heard what was said. We think it erroneous to permit a forger’s evidence to outweigh that of a witness whose character is quite unimpeached, especially when, as in this case, the testimony is improbable in itself and the obvious motive of the forger in currying favor with his female victim must be presumed to have weighed with him. We therefore sustain the Commonwealth Title Insurance and Trust Company’s fourth exception.

      It seems to us, however, that with this fact eliminated the case of the Commonwealth Title Insurance and Trust Company is not materially bettered. Its grantor had no title, and it has no title. The only ground, therefore, on which it can stand is that the fraud of which it was the victim is due to the blameworthy carelessness of the plaintiff. In the face of the evidence, this position becomes untenable. The company saw the deed when the word “ trustee ” was in it. It pointed out that the presence of that word was a material hindrance to the negotiation of the mortgage. When the mortgage was presented, this hindrance was, it is true, removed; but the evidence of its removal by erasure was patent. And yet the company, with this notice of bad faith staring it in the face, advanced the money. This is gross negligence in law, and it would have been gross negligence in fact were it not for the internal machinery of the company. The deed with the word “ trustee ” in it was originally presented to Mr. Gretzinger, who was the proper party to whom to show it. When the fraudulent alteration was made, it was presented to another clerk of the company, who was, under the company’s rules, the proper person to receive it at that stage. Unfortunately he was unaware of what had happened with Mr. Gretzinger, but this fact cannot help the company. The company has no power, by the subdivision of its labors among clei’ks, to change the general law of the principal’s responsibility for acts of his agent. As a corporation, it is bound to know in every department all that has been properly communicated to it in any department, and the mere fact that to carry out this theory is inconvenient in practice, cannot help the company. We concur, therefore, with the learned trial judge, that the plaintiff is entitled to the relief prayed for.
    The fourth exception of the Commonwealth Title Insurance and Trust Company is sustained and all the other exceptions are dismissed.

      Error assigned was the decree of the court.

      Andrew J. Maloney, with him Max Herzberg, and E. Cooper Shapley, for appellants.’

      William M. Meredith, for appellee.

      March 6, 1905:
   Pee Curiam,

These judgments are affirmed on the opinion of the court below dismissing exceptions to the findings of the trial judge.


text:
    McBrerty, Appellant, v. Hyde.

      Deed—Fraudulent conveyance—Reconveyance—Equity.

    Where a person makes a deed of real estate in order to cheat his creditors, and subsequently directs his grantee to convey the land to a third person with whom the original owner has an arrangement by which such person is to make advances and reconvey the land when the advances have been repaid, the original owner has no standing in equity to compel the heirs of the person who made the advances to reeonvey the premises to himself. The original fraud affects the whole transaction.
    Argued Jan. 23, 1905.
    Appeal, No. 134, Jan. T., 1904, by plaintiff, from decree of C. P. No. 1, Phila. Co., Dec. T., 1901, No. 1477, dismissing bill in equity in case of Charles Mc-Brerty v. Mary B. Hyde et al. and the City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mesteezat and Elkin, JJ.
    Affirmed.
    Bill in equity to compel a reconveyance of land. Before BrÉG-Y, J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court.

      E. Spencer Miller, and George Tucker Bispham, for appellant.

      Walter Thomas Fahy, Eorace M. Bumsey, with them Thomas A. Fahy, for appellees.
    March 6, 1905:
   Pee Curiam,

The learned judge below after finding the facts in detail summed up his conclusion as follows; “ As I have found the facts, this is the situation: The plaintiff being insolvent and about to fail in business, put the property at Twenty-fourth and Spring Gardon streets in the name of one Hannah McHenry, to cheat his creditors. This was in July, 1888two days afterwards he confessed judgment largely in excess of the value of the property. Hannah McHenry held the property for him till March, 1890, when, at Mr. McBrerty’s request, she conveyed it to Mr. Hyde. Hyde ivas to carry it, pay the building association dues, and other charges, and receive the rents; when the building association stock matured and the mortgage of 13,000 thus became paid and satisfied, a new loan was to be created and Hyde paid whatever was coming to him, then the property was to be reconveyed to McBrerty.

“Hyde died about the time the shares matured. This is an effort to have his heirs reconvey on payment to them of whatever was due Hyde. The promise to reconvey was a verbal one. The scheme was to get back in 1897, or thereabouts, property he had conveyed in 1888 in fraud of his creditors.

“ The conveyance to Hyde was a continuation of the fraudulent object in view at the time of the conveyance to Mrs. McHenry. The law will not enforce agreements made under such circumstances.

“ The fraud at the beginning of the transaction continues through it all, and I decline to enforce the agreement to re-convey that Mr. Hyde made.

“ Let a decree be drawn dismissing the bill—each side to pay his own costs.”

The findings are justified by the evidence and fully sustain the conclusion. Decree affirmed.


author: Pjsr Curiam,

text:
    Alexander’s Estate.

      Executors and administrators—Counsel fee—Will contest—When counsel fee will be allowed.

    While it is the general rule that an executor will not be allowed counsel fees in a contest to sustain the will by which he is appointed, this rule does not apply where the result of such contest has been greatly to enhance the value of the estate, by having outlawed indebtedness of certain of testator’s children treated as advancements and as assets for purposes of distribution. The rule also has no application where no appeal from the admission of the will to probate has been taken until within a few days of the time when the right to appeal would have expired, and in the meantime the executor has qualified, entered upon the performance of his duties, filed an account at the expiration of the first year, and made partial distribution of the estate.
    Argued Jan. 24, 1905.
    Appeal, No. 232, Jan. T., 1904, by Mary C. Alexander, from decree of O. C. Phila. Co., Jan. T., 1896, No. 526, sustaining exceptions to adjudication in estate of John Alexander, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.
    Ferguson, J., filed the following opinion:
    The auditing judge rejected the claim of the accountant, the Fidelity Trust Company, for counsel fees incurred by it in a contest over the will of the testator. It is no doubt settled in this state that, where there is a controversy as to the validity of a will between two sets of legatees or devisees, or between some one claiming that the will was invalid and that distribution should be made under a prior will, or under the interstate laws, the executor has no right to espouse the cause of either of the said contestants and engage in the contest and charge the estate witli the expense thereof. This is true as a general proposition ; but there are several exceptions to it, as appears by the decisions of the Supreme Court on this subject. For instance, if the estate is materially benefited by the controversy, if the contestants seek to destroy the trusts created by the will, if the question was between a genuine will and a forged or spurious one: Rankin’s Appeal, 10 W. N. C. 235 ; Reimer’s Estate, 159 Pa. 212; Titlow’s Estate, 163 Pa. 35; Yerkes’s Appeal, 99 Pa. 401; Hoffman’s Estate, 19 Pa. Superior Ct. 70. In this case the contest was between the last will of the testator and the one previously made by him. By the first will the testator divided his estate equally among his four children, the share of his daughter, however, to he held in trust for her. Two of the sons of the testator were indebted to him in an amount in excess of their respective distributive shares. Some of the obligations which represented this indebtedness were barred by the statute of limitations, and others rapidly becoming so barred as time advanced. Under these circumstances, the testator, desiring to deal justly and equally with all his children, executed the will in controversy, by which he directed that the indebtedness of his said two sons should be treated as advancements to them, and charged against their respective shares. The estate was thus most materially benefited by sustaining the last will of the testator, as it was thereby enabled to secure the outlawed indebtedness of the two sons as assets for the purpose of administration, and thus the distributive share of each of the children was increased. Under the decisions this fact of itself was a sufficient reason to justify the payment out of the testator’s estate of the counsel fees incurred in maintaining the last will.
    We think, however, that a more cogent reason exists in the facts of this particular case which are different from any of the cases cited, and which we think obligated this accountant as executor to defend this will. The testator died in February, 1895. A contest over his will was immediately commenced before the register of wills, which resulted in the will being admitted to probate. The accountant then qualified as executor, and entered upon the performance of its duty as such. A year afterwards its account was filed, as required by law, and distribution made of the balance as shown thereby to numerous legatees, and the residue was awarded, one half to the son to whom no advancements had been made, and the other half to the accountant in trust for the daughter, as provided by the will of the testator. The contestants did not appear at this audit, and no exceptions were filed by them to the distribution ordered. Two years afterwards, and within a few days of three years, when the time for an appeal would have expired, this appeal was taken and afterwards litigated in this court and the Supreme Court, and in this litigation the expenses in question were incurred. The accountant would not have been justified in appearing as an actor in this case in its incipiency, or perhaps not if an appeal had been promptly taken, but haying qualified as executor and having performed its duties as such down to accounting and making distribution of part of the estate, one half of which passed into its hands as trustee without objection from anyone, it had every reason to believe that the decision of the register was acquiesced in. Be this as it may, the accountant was then in such a position that it was compelled to defend itself from an attack which threatened to destroy the will of the testator and the trust created thereby, and involve the estate in a great financial loss. We think it was proper for the accountant to employ counsel in this case, and the expense thereof is a proper charge against this estate.
    The exceptions which relate to the rejection of this claim by the auditing judge are sustained.

      Error assigned was the decree of the court.

      M. Hampton Todd, for appellant.

      Luden H. Alexander, H. Gordon Me Couch, J. Lawrence Wetherill and Frank P. Prichard, for appellees.
    March 6, 1905:
   Pjsr Curiam,

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


author: Mr. Justice Mestrbzat,

text:
    Miller v. Merritt, Appellant.

      Negligence—Fall of roof—Defective concrete—Question for jury.

    In an action against roofers by an employee of the owner of the building on which a roof was being placed, to recover damages for personal injuries, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the accident was caused by the defendants using defective material, by improperly mixing the concrete, and by prematurely removing the supports of the roof before the concrete had hardened sufficiently to sustain the additional weight placed upon it by the defendants.

      Negligence—Independent contractor—Master and servant.

    Where the practical effect of a contract between the owner of a building and the contractors for roofing, is to authorize the latter to furnish the material and to do the work according to their own method without being subject to the control or direction of the owner, except as to the result to be obtained, the roofers are independent contractors, and this result is not changed by the fact that the agreement provides that the owner’s superintendent shall have general supervision of the work for the purpose of ascertaining whether the contractors are carrying out their agreement.

      Argued Jan. 24, 1905.
    Appeal, No. 154, Jan. T., 1904, by defendants, from judgment of C. P. No. 2, Pbila. Co., Sept. T., 1900, No. 553, on verdict for plaintiff in case of Ellen P. Miller v. Merritt & Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Sulzberger, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $8,000. Defendants appealed.

      Error assigned, among others, was in refusing binding instructions.

      Thomas Earle White, with him Andrew O. Wylie, George Quintar d Horwitz and White, White Taulane, for appellant.
    The negligence, if any, of defendants’ workmen was of those iu a common employment with the decedent, Wilbur Miller, and the superior is not responsible therefor: Wischam v. Richards, 136 Pa. 109 ; Allen v. Willard, 57 Pa. 374; Congregation v. Smith, 163 Pa. 561; Reynolds v. Braithwaite, 25 W. N. C. 269; Erie v. Caulkins, 85 Pa. 247; Painter v. Pittsburg, 46 Pa. 213 ; Smith v. Simmons, 103 Pa. 36; Edmundson v. Pittsburg, etc., R. R. Co., 111 Pa. 316.
    Even had there been evidence that the accident was caused by negligence of defendants’ employees in the work to be performed by them, still the uncontradicted evidence showed they acted under the supervision and according to the instructions of Wilbur Miller: Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610; Johnson v. N. Y. C. & H. R. R. Co., 173 N. Y. 79 (65 N. E. Repr. 946).

      Thomas Learning, with him William L. Ohrisman, for appellee.
    No question as to the law of fellow servants is involved: Hunt v. Penna. R. R. Co., 51 Pa. 475; Allen v. Willard, 57 Pa. 374; Erie v. Caulkins, 85 Pa. 247.
    March 6, 1905:
   Opinion by

Mr. Justice Mestrbzat,

There was ample evidence submitted to the jury to justify them in finding that the concrete used in the construction of the floors and roof of the building was defective by reason of improper or negligent mixing, and that the roof fell by reason of the defective concrete or premature removal of the “ centres ” which are temporary wooden structures used to support the plastic concrete work of the roof before it had become hard. The learned judge charged as to the concrete as follows: “I say there is evidence tending to show that the concrete was not properly mixed in the process, and that it was not properly made when it was done; that is, that the result showed that the process was wrong. You will remember the evidence of those witnesses who tended to show that. On the other hand, there is evidence on the other side to show that the process was excellent and that the result was excellent. There is a square issue of fact. One or the other, or perhaps in a degree both, may be incorrect; but it is for you to decide whether upon the whole there was any negligence on the part of the defendants, Merritt & Company, in mixing the concrete, so that from the defective nature of its mixing it produced the fall and the consequent injury to the decedent.” It was also alleged by the plaintiff that the roof collapsed by reason of the defendants having prematurely removed the “ centres ” before the concrete had hardened sufficiently to support the additional weight and tamping of the material placed upon the roof by the defendants to make the drainage slopes. The trial judge properly submitted the question to the jury in the following language of his charge: “ It appears that when they had got that base line done, they took this flooring off and they put this other stuff on and tamped it without a bottom to it. It is alleged here that that is not good work and that that really produced the mischief. That is a question of fact for you. It is averred on the one side and contradicted on the other. You will have to consider the weight of the evidence, and if you find that that did not produce the effect, of course the defendants cannot be charged in respect to it. If you, after examining all the reasons, cannot find what did produce the effect, then the defendants are not to be charged, because negligence must be affirmatively proved. But if you find that the tamping with the bottom off did produce the result, then the defendants are liable and must answer in damages.”

Under these instructions, the verdict of the jury sustains the contention of the plaintiff that the death of Wilbur F. Miller, an employee of the owner of the building, resulting from the fall of the roof, was caused by the negligence of the defendants in using defective material in constructing the roof and in failing to properly support the roof until the concrete had hardened sufficiently to sustain the additional weight placed upon it by the defendants.

The learned counsel for the defendants, however, insist in their argument that there was no evidence to support the contention that the accident was caused by the improper mixing of the concrete or premature removal of the centres. The concrete used in this building was composed of certain proportions of cement, cinders and sand. Improper mixing results in “voids” which are open spaces in the body of the concrete and weaken the material. The more numerous the voids the weaker the concrete necessarily is. Essick, the city building inspector, examined the concrete immediately after the roof and wall fell. He testified that it had not been properly mixed, was full of voids, and that none of it had the proper set. It also appeared by the testimony that the concrete was not inspected by any person after it was made by the laborers ; and as to the care with which they prepared it, one of the laborers testified that “ the quicker they mixed it up the more time we would have to ourselves.”

There was likewise sufficient testimony to go to the jury on the question of the negligent removal of the “ centres.” They were placed under the entire roof. The work of laying the concrete and tamping was begun Wednesday afternoon and finished Thursday morning. On the following day, Friday, according to the testimony of Branson, the defendants’ employee, the “ centres ” were removed from the north end of the building where the roof fell on the following Monday afternoon causing the death of the plaintiff’s husband. The roof at the south end of the building, from which the “ centres ” had not been removed, remained intact. The testimony of the defendants’ own witnesses shows that the “ centres ” should not have been removed • in less than three or four days after the cement had been laid, while the testimony of the plaintiff’s witness leads to ‘the belief that a longer time should have elapsed, one witness, the building inspector, saying : I would not remove them under two weeks, not a day less than two weeks.”

Under this and other testimony in the case, it was clearly a question for the jury to determine whether the defective concrete and premature withdrawal of the “ centres ” caused the roof to fall, which resulted in the death of the plaintiff’s husband. If the testimony alluded to is credible, the “ centres” should have remained in position for at least three days to support the weight of the floor. The tamping and additional weight of the heavy material placed on the roof for constructing the drainage grade required that the “ centres ” should continue in place much longer. There is also the significant fact, in support of the verdict, that only that part of the roof fell from which the “ centres ” had been removed. It is true that one of the plaintiff’s witnesses testified on cross-examination that the absence of tie-rods between the I beams permitted the arches to flatten and push the wall out and that caused thfe accident. This, like the other testimony introduced to establish the cause of the accident, was submitted to the jury who were distinctly told by the court in affirming a point that “ if '.you find that the accident resulted from the absence of tie-rods, .... your verdict inust be for the defendants.” They were also instructed that “ if you, after examining all the reasons, cannot find what did produce the effect, then the defendants are not to be charged, because negligence must be affirmatively proved.” The jury, therefore, found that the accident was not caused by the absence of tie-rods, but by the improperly prepared concrete and premature removal of the “ centres ” from the part of the floor which fell.

It is further contended by the defendants that Miller was guilty of contributory negligence, that he knew the conditions at the place of the accident and assumed the risks; and further, that defendants’ employees acted under his supervision and according to his instructions in performing the work. The learned court, however, left these questions, with proper instructions, to be determined by the jury. He told the jury there could be no recovery if Miller participated in or supervised the preparation of the concrete, or the “ centres ” were removed at the request or by direction of Miller, or he had knowledge of their removal, and that “ if Wilbur Miller really acted so that these people (defendants’ employees) obeyed him, and that he directed this thing, or knew of it, then they (defendants) cannot be held liable.”

It is also contended by the defendants that they were the agents of the Bell Telephone Company to obtain the workmen and furnish the material for the work to be done, and that Miller was the agent of the telephone company to direct the workmen in the use of the material, and hence, he and the employees of the defendants were fellow servants of a common master, the telephone company. It is, therefore, claimed by the defendants that the relation of independent contractor did not exist between them and the Bell Telephone Company which employed them to construct the floors and roof of the building. As we have seen, the jury found that Miller did not supervise the mixing of the concrete or direct the defendants’ workmen in laying it or in removing the “centres.” Those were questions for the jury: Pender v. Raggs, 178 Pa. 337. It is contended, however, that under the contract with the defendants this authority was vested in the telephone company and its employee, Miller, and that, therefore, the defendants were not independent contractors. If the telephone company stood in relation to the defendants of master and servant or principal and agent, then the defendants are not liable for the injuries to Miller caused by the negligence of their workmen. If, on the other hand, the defendants were independent contractors, they are responsible for the negligence of their employees resulting in Miller’s death. The relation of the parties to each other must be determined from the contract which created it. The contract provides that, for the consideration of $2,549, the defendants shall furnish all the material and labor for, and erect, the floors and roof of the building in accordance with the revised plans and specifications within two weeks after notice to proceed with the work. If the defendants neglected to do tire work or furnish the materials in accordance with the agreement, the telephone company was authorized to do so at their expense, or to declare the contract forfeited and to reaward it, the defendants being liable for any damage caused by their default. The contract further provides that the telephone company should have the right to change any part of the plans of the building during the progress of the work and that the defendants should comply with the direction of the company’s superintendent of construction as to the time and manner of performing the work, the precaution to be taken and the quality of the materials and workmanship. It is claimed that these provisions of the contract reserved to the telephone company, the owner, the complete control of the work to be done, as well as the method and details of performing it, and consequently established the relation of master and servant between the telephone company and the defendants. We think, however, this conclusion is erroneous when the purpose and the language of the whole contract are considered. What the owner, the telephone company, desired and intended to secure by the contract was the construction of the floors and roof of the building in accordance with the defendants’ system of steel and concrete construction. The contract and specifications were prepared with that end in view. The owner’s purpose, as clearly disclosed by the agreement, was to secure this result, leaving to the defendants the means of accomplishing it. They were to furnish the material and the labor at their own expense and were not restricted as to where, or to the person from whom it should be obtained. The character of the material and the details of the work were provided for in the specifications which were a part of the contract. The completion of the work according to the specifications and the contract was a full compliance with the agreement. The defendants selected, employed and paid the workmen out of their own funds, and the telephone company could not dismiss them. The compensation was a round sum for the entire work, with a stipulation that on failure of the defendants to complete it within the period specified in the contract, they should be subject to a penalty and the owner might complete the work at their expense, or might reaward the contract and hold the defendants for damages. These provisions clearly show that the defendants were to procure the material and to do the work with their own employees within the specified time and in accordance with the detailed description set forth in the specifications. It is claimed, however, by the defendants that they were denied the control of the work and the mode of performing it by the provision of the contract that they should comply with the direction of the owner’s superintendent of construction as to the time and manner of performing the work, the quality of the material and the workmanship. But this is a misapprehension of the effect of this clause of the agreement. The contract provides that the work shall be completed in two weeks, and the specifications require the materials to be the best of their respective kinds and the entire work “ to be constructed and finished in every part in a good, substantial and workmanlike manner, according to the accompanying drawings and this specification.” It is apparent, therefore, that the clause of the agreement just referred to conferred on the owner’s superintendent of construction only such supervisory powers as would enable him to see that the defendants were performing the work in compliance with the provisions of the contract and specifications, and gave him no authority to direct the workmen as to the methods of executing the details of the work. If he discovered on inspection that the defendants’ employees were neglecting or not properly constructing the work, it was not his duty to instruct them how to do it or to require them to do it in a proper manner, but to notify their employers, the defendants, of their conduct, and upon failure of the defendants to have the work satisfactorily performed, the owner was authorized by the agreement, at the cost and expense of the defend-, ants, to “ employ on the work such mechanics, overseers and laborers, .... and purchase such materials as may .... be necessary to make up or correct the shortcomings, omissions or delinquency ” of the defendants who were liable to the owner for damages caused by their default. This view of this clause of the contract in question is supported by the language of the agreement immediately preceding the clause, which declares that the defendants shall provide safe and proper facilities for the inspection of the work by the owner’s superintendent of construction.

The practical effect of the whole agreement, we think, is to authorize the defendants to furnish the materials and to do the work in constructing the floors and roof of the building according to their own method without being subject to the control or direction of the owner except as to the result to be obtained. In the performance of the work, therefore, the defendants were independent contractors and not servants of the owner: Hunt v. Penna. R. R. Co., 51 Pa. 475 ; Allen v. Willard, 57 Pa. 374; City of Erie v. Caulkins, 85 Pa. 247. Provisions in a building contract permitting tbe owner during the progress of the work to make alterations, deviations, additions or omissions from the agreement, the cost of which is to be added or deducted from the contract price, do not make the contractors servants of the owner: Frassi v. McDonald, 122 Cal. 400. Reserving the right of supervision for the purpose of ascertaining whether the contractor carries, out his agreement, or reserving the right to dismiss incompetent workmen, will not render the employer liable for the negligence of the contractor’s workmen: Atlanta, etc., R. R. Co. v. Kimberly, 27 Am. St. Rep. 231; Bibb v. N. & W. Railroad Co., 87 Va. 711. An employee is a contractor and not a servant of the employer, although the work is to be performed under the inspection and to the satisfaction of an architect acting as the agent of the employer: Smith v. Milwaukee, etc., Exchange (Wis.), 51 Am. St. Rep. 912.

The argument of the learned counsel for the defendants is devoted to a discussion of the refusal of the learned trial judge to affirm their point that under all the evidence the verdict should be for the defendants. It would have been error to affirm this point, as the case was clearly for the jury. It was submitted in a charge, full and explicit, and to which no exception was taken.

The judgment is affirmed.