author: Mr. Justice Mestrezat,

text:
    Bailey & Company v. Western Union Telegraph Company, Appellant.

      Telegraph and telephone companies — Intelligible messages — Messages in cipher — Error in transmission — Inability in tort to addressee — Measure of damages — Proof of delivery — Prima facie presumption — Burden.
    1. A telegraph company is liable in tort to the addressee for injuries arising out of the negligent transmission of an intelligible message; the measure of recovery being the actual damages sustained.
    • 2. Proof of the delivery of the erroneous or altered telegram in an action of tort, establishes, prima facie, the negligence of the telegraph company, and casts upon it the burden of excusing itself, and of showing that the error was caused by some agency for which it is not liable.
    3. A message containing but two code words, sent by a manufacturing company and manifestly referring to a commercial transaction, which in terms shows anxiety on the part of the sender that the firm to which it is addressed will sell something, is not subject to the rule applicable to messages in cipher and unintelligible except to the sender and sendee.
    '4. A telegraph message need not disclose on its face the nature of the business, so that its meaning as to quantity, quality or value may be disclosed to the operator; if it shows that it relates to a commercial or legal transaction of value it is sufficient.
    5. The fact that a telegraph message is sent and received by parties evidently engaged in business operations and that part of it is in cipher should be notice to the operator that it relates to business matters of importance to the parties, and some of which matters they ■wish to conceal from the general public and about which they wish to communicate without delay. It' is therefore sufficient notice to a telegraph company if the message shows on its face that it relates to a commercial transaction of importance without giving the details of the transaction.
    6. Where a dry goods manufacturing company, in reply to a telegram containing an offer for a certain quantity of goods, deposits with a telegraph company for transmission to a. commission firm .who are the exclusive agents of the manufacturing company, the following telegram: “Anxious that you sell summer deliveries of decade at chaplet,” written on a blank containing the usual stipulations limiting the company’s liability for unrepeated messages, and the telegraph company delivers the telegram, an unrepeated night message, to the commission firm in the following form: “Anxious that you sell summer deliveries of decade at chapel,” the effect being a change in the price of the goods from five cents to four and seven-eighths cents per yard, resulting in a loss of one-eighth cent per yard on many thousands of yards sold by the commission firm, before the mistake was discovered, such loss may be recovered from the telegraph company and the latter cannot defalk a fixed commission received by the commission firm, as exclusive selling agents and bankers of the manufacturing concern, of four per cent of the gross selling price of all sales of the manufacturing company’s product; the parties, in such cases, being entitled to all the legitimate benefits of the contract, including profits and compensation for services rendered and liabilities assumed.

      Telegraph and telephone companies- Printed notice on back of blank— Exemption from liability — Negligence.
    7. The rule or notice of exemption from liability printed on the back of the blank on which the sender writes the message does not apply to the recipient of a message, and will not relieve the telegraph company from liability to him for errors in transmission.
    8. A telegraph company may make reasonable rules affecting its responsibility, but it cannot stipulate for exemption from liability caused by its own negligence.
    Argued Jan. 11, 1910.
    Appeal, No. 138,
    Jan. T., 1909, by defendant, from judgment of O. P. No. 5, Phila. Co., March T., 1907, No. 1,286, on verdict for plaintiff in case of Joshua L. Baily, Frederick L. Baily et al., trading as Joshua L. Baily & Company v. Western Union Telegraph Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for wrongful delivery of a telegraph message. Before Ralston, J.
    The facts appear in the opinion of the Supreme Court.
    Defendant’s points all of which were declined were as follows:
    1. The message in suit, being a cipher message, not disclosing the results of error in transmission, the company is only liable for such error in nominal damages.
    2. In adopting a code containing two words so closely resembling each other in their spelling, as “chapel” and “chaplet” and allowing these two such words to designate prices only one-eighth of a cent apart, the plaintiffs were guilty of contributory negligence, and arc; not entitled to recover.

      3. The telegram for the error in which this suit is brought, being sent in reply to the telegram from the plaintiffs to the Glenn-Lowry Manufacturing Company of the same day, the plaintiffs are bound by the terms and conditions under which the telegram was accepted and transmitted by the defendant company, and inasmuch as by the terms and conditions under which the telegram was sent it was expressly agreed that the company should not be liable for mistakes or delays in the transmission or delivery of any unrepeated message beyond the amount received for sending the same, nor in any case for errors in cipher or obscure messages, the plaintiff under the evidence of this case is not entitled to recover more than the amount paid for sending the same.
    4. The Glenn-Lowry Manufacturing Company was bound by the terms of the telegram sued on as delivered to the plaintiffs, and if the plaintiffs voluntarily declined to-enforce the same, they are not entitled to recover from the defendant the loss suffered by reason thereof.
    5. Under all the evidence your verdict must be for the defendant.

      Errors assigned were (1-5) refusal of points and (7) refusal to enter judgment non obstante veredicto.

      H. B. Gill, with him John R. Read and Louis B. Runh, for appellant.
    — It is incumbent in every case upon an injured party to do whatever he reasonably can to lessen the injury: Penna. R. R. .Co. v. Titusville, etc., Co., 71 Pa. 350; Chamberlin v. Morgan, 68 Pa. 168; Barkley R. R. & Coal Co. v. Ingham, 36 Pa. 194; Baldwin v. Tel. Co., 45 N. Y. 744; Morris v. Supplee, 208 Pa. 253; Pittsburg Mfg. Co. v. Steel Co., 201 Pa. 150; Wolf v. Tel. Co., 24 Pa. Superior Ct. 129.
    The plaintiffs did not in fact suffer any loss: Joynes v. Postal Tel. Cable Co., 37 Pa. Superior Ct. 63; Hinde v. Smith, 6 Lansing (N. Y.), 464; Dalby v. Stearns, 132 Mass. 230; Frothingham v. Everton, 12 N. H. 239; Bigelow v. Walker, 24 Vt. 149; Rollins v. Duffy, 18 Ill. App. 398; Dazey v. Roleau, 111 Ill. App. 367.

      The message did not disclose the probable results of any negligence, and it was an unrepeated message: Passmore v. Tel. Co., 78 Pa. 238; Primrose v. Tel. Co., 154 U. S. 1 (14 Sup. Ct. Repr. 1098); Ferguson v. Tel. Co., 178 Pa. 377; City v. Zimmerman, 95 Pa. 287; Abeles v. Tel. Co., 37 Mo. App. 554.
    The plaintiffs were bound by the conditions under which the telegram was sent: Coit v. Tel. Co., 130 Cal. 657 (63 Pac. Repr. 83); Halsted v. Tel. Cable Co., 193 N. Y. 293 (85 N. E. Repr. 1078); Becker v. Tel. Co., 11 Neb. 87; Joynes v. Cable Co., 37 Pa. Superior Ct. 63; Playford v. Tel. Co., L. R. 4 Q. B. Cases, 706; Dickson v. Tel. Co., L. R. 2 C. P. Div. 62; Manier v. Tel. Co., 94 Tenn. 442 (29 S. W. Repr. 732); Tel. Co. v. James, 90 Ga. 254 (16 S. E. Repr. 83); Curtin v. Tel. Co., 38 N. Y. Supp. 58.

      John G. Johnson, with him James Wilson Bayard, for appellee.
    — The appellant is liable in damages to the appellee for the error in transmission of the telegram: Primrose v. Tel. Co., 154 U. S. 1 (14 Sup. Ct. Repr. 1098); Express Co. v. Caldwell, 88 F. S. 264; Telegraph Co. v. Dryburg, 35 Pa. 298.
    The condition on the “telegraph sent” blank applies to the sender and not the sendee: Tel. Co. v. Richman, 19 W. N. C. 569; Tobin v. Tel. Co., 146 Pa. 375.
    The measure of damages adopted by the court below was proper under the circumstances: Tel. Co. v. Wenger, 55 Pa. 262; Bowie v. Tel. Co., 59 S. E. Repr. 65; Tel. Co. v. Landis, 21 W. N. C. 38.
   Opinion by

Mr. Justice Mestrezat,

March 28, 1910:

The plaintiffs are engaged in the dry goods commission business in the city of Philadelphia. They do not purchase the goods but sell to the trade and charge a commission on them. They are the exclusive selling agents for the GlennLowry Manufacturing Company of Whitmire, South Carolina, manufacturers of dry goods. In reply to a telegram containing an offer for a certain quantity of goods, the Glenn-Lowry Manufacturing Company on March 20, 1906, deposited with the defendant company at Whitmire, South Carolina, the following telegram for transmission to the plaintiffs in Philadelphia: “Anxious that you sell summer deliveries of decade at chaplet.” On the morning of March 21, 1906, the defendant company delivered to the plaintiffs, as the message deposited with it the evening before at Whitmire for transmission, the following telegram: “Anxious that you sell summer deliveries of decade at chapel.” It will be observed that the word “chapel” in the message delivered to the plaintiffs in Philadelphia was.erroneously substituted for the word “chaplet” in the message deposited for transmission. The blank on which the messages were written contained the usual stipulations limiting the company’s liability for unrepeated messages. The telegram received by the plaintiffs was an unrepeated night message.

According to the plaintiffs’ private code, “decade” meant certain goods manufactured at the mills of the Glenn-Lowry Manufacturing Company, the word “chapel” meant four and seven-eighth cents per yard, and “ chaplet ” five cents per yard.

Relying on the message, the plaintiffs, on the day it was received, sold to Garner & Company of New York, 30,000 pieces of the goods at four and seven-eighths cents a yard. The sales note provided that “ if the production of the Glenn Mills shall be curtailed during the time above named by strikes, or lockouts to counteract strikes, or any unavoidable casualty, the deliveries shall only be proportionate to production.” Immediately after the sale the plaintiffs wired the Glenn Mills to ship the goods. The error in the transmission of the telegram was then discovered. The Glenn-Lowry Manufacturing Company refused to deliver the goods which had been sold to Gamer & Company at the price of four and seven-eighths cents per yard, and compelled the plaintiffs to • pay five cents per yard for them. This resulted in a loss to the plaintiffs of $1,999, and to recover that sum the plaintiffs instituted this action. The learned court below held that the plaintiffs were entitled to recover, and that the measure of damages was the actual loss sustained by them by reason of the error in the transmission of the message. The defendant company has appealed.

The defendant contends (a) that it is not liable; because the message did not disclose the probable results of any negligence in transmission, and the plaintiffs are bound by the conditions printed on the telegraph blank and under which the message was sent; (b) that the plaintiffs did not suffer any loss, and that if they can recover, the damages can only be nominal and cannot exceed the price of the message sent.

The record raises two questions for consideration: (1) Can the plaintiffs, the addressees and receivers of a telegraphic message, recover under the facts of this case; and (2) if there can be a recovery, what is the proper measure of damages.

1. It is settled in this jurisdiction and by the great weight of authority in this country that a telegraph company is liable in tort to the addressee for injuries arising out of the negligent transmission of an intelligible message. A different rule prevails in England and possibly in some states of the Union. New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298, was an action on the case brought by the recipient of a message against the telegraph company for the careless and erroneous transmission of a telegram. Between the receipt of the message and the time he learned of the error in transmission, the plaintiff acted on the information contained in the telegram and sustained a loss. He brought the action to recover damages for the loss resulting from the error in transmission. A judgment of the trial court against the telegraph company was sustained by this court. It was held that if a telegraph company negligently or willfully violates its duty of sending the very message prescribed, it is responsible in an action sounding in tort to the party to whom the erroneous message is addressed, and further, that even if the telegraph company be considered only as the agent of the sender of the message, it is liable to third persons, as a wrongdoer, for any misfeasance in the execution of the duties confided to it. In delivering the opinion, Woodward, J., said (p. 302): “The wrong, then, of which the plaintiff complains, consisted in sending him a different message from that which they had contracted with LeRoy to send. That it was a wrong is as certain as that it was their duty to transmit the message for which they were paid. Though telegraph companies are not, like carriers, insurers for the safe delivery of what is entrusted to them, their obligations, as far as they reach, spring from the same sources, — the public nature of their employment, and the contract under which the particular duty is assumed. One of the plainest of their obligations is to transmit the very message prescribed. To follow copy, an imperative law of the printing office, is equally applicable to the telegraph office.” This case was followed in Western Union Telegraph Co. v. Richman, 19 W. N. C. 569; Western Union Telegraph Co. v. Landis, 21 W. N. C. 38; Tobin v. Western Union Telegraph Co., 146 Pa. 375; Wolf Co. v. Western Union Telegraph Co., 24 Pa. Superior Ct. 129, and Harris v. Western Union Telegraph Co., 9 Phila. 88. In these cases the action was in tort and was brought by the recipient of the message to recover damages for errors in its transmission. Proof of the delivery of the erroneous or altered telegram in an action of tort establishes, prima facie, the negligence of the telegraph company, and casts upon it the burden of excusing itself, and of showing that the error was caused by some agency for which it is not liable: 2 Joyce on Electric Law, sec. 1046; Gray on Communication by Telegraph, sec. 77; Jones on Telegraph and Telephone Companies, sec. 36; United States Telegraph Co. v. Wenger, 55 Pa. 262.

The rule or notice of exemption from liability printed on the back of the blank on which the sender writes the message does not apply to the recipient of a message, and will not relieve the telegraph company from liability to him for errors in transmission: New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298; Tobin v. Western Union Telegraph Co., 146 Pa. 375; Olympe De La Grange v. Southwestern Telegraph Co., 25 La. Ann. 383. The notice on the back of the blank was to the person who sent the message and not to the one who received it: Western Union Telegraph Co. v. Richman, 19 W. N. C. 569. If, however, the addressee is bound by the rules printed on the back of a message limiting the company's liability, it would not avail the company in an action brought against it in this state for the negligent transmission of the message. In this and many other jurisdictions, a telegraph company may make reasonable rules affecting its responsibility, but it cannot stipulate for exemption from liability caused by its -own negligence: Wolf v. Western Union Telegraph Co., 62 Pa. 83; Passmore v. Western Union Telegraph Co., 78 Pa. 238; Southern Express Co. v. Caldwell, 88 U. S. 264; Pepper v. Telegraph Co. (Tenn.), 10 Am. St. Rep. 699; Gillis v. Western Union Telegraph Co. (Vt.), 15 Am. St. Rep. 917; Brown v. Postal Telegraph Co. (N. C.), 32 Am. St. Rep. 793; Stamey v. Western Union Telegraph Co. (Ga.), 44 Am. St. Rep. 95; Western Union Telegraph Co. v. Linn (Tex.), 47 Am. St. Rep. 58; Reed v. Western Union Telegraph Co. (Mo.), 58 Am. St. Rep. 609; Western Union Telegraph Co. v. Eubanks (Ky.), 66 Am. St. Rep. 361.

While, as we have seen, our own cases hold that in an action by an addressee to recover damages for loss sustained by the erroneous transmission of a message, he is not bound by stipulations on the back of the message restricting liability of the telegraph company for mistakes in unrepeated messages, the learned counsel for the appellant cite and rely on Coit v. Western Union Telegraph Co., 130 Cal. 657; 53 L. R. A. 678, and Halsted v. The Postal Telegraph Cable Co., 193 N. Y. 293; 19 L. R. A. (N. S.) 1021, as announcing a different doctrine. Both of these cases were ruled on the ground that the sender was the agent, specially authorized by the addressee, to send the message, and hence was bound by the contract made by the sender with the telegraph company. In the Coit case, it is said in the opinion: “Plaintiffs telegraphed to Dennis, in St. Louis, requesting him to send by telegram the price of 220 tons of steels rails. In pursuance of that request, Dennis telegraphed the desired information. It is thus plain that Dennis performed service for plaintiffs at their request. And, that being so, we deem the conclusion irresistible that, in the performance of the service, Dennis was acting for plaintiffs, and was their agent. ... Dennis, in sending the,message, being the agent of plaintiffs, they were bound by the contract made with the defendant. Plaintiffs, by requesting him to send the message, necessarily authorized him to contract with defendant as to how that message should be sent .... and therefore the agreement was binding upon the principal, these plaintiffs.” The case of New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298, is distinguished on the ground that “no question of agency appears to have been involved, and it is upon the contract made by Dennis with the défendant, and the privity of contract existing between Dennis and plaintiffs that we plant our conclusion upon this branch of the case.” In the Halsted case, the opinion says: "It was ' alleged in this complaint that the plaintiffs requested the Cannon Manufacturing Company .... to send them by wire the prices for the goods and was shown to be the fact by the evidence of the plaintiffs. The Cannon Manufacturing Company, therefore, in transmitting the information requested by means of the telegraph, was made the agent of the plaintiffs for that purpose. ... It is our judgment that, where the receiver of a message has, by special request, procured it to be sent by the telegraph, he becomes bound by any reasonable contract made by the sender with the telegraph company for its transmission, and is limited in his claim for any damages for a loss occasioned by error or mistake in transmission, where the stipulations for the repetition or for the insurance of the message had not been availed of, to the amount stipulated in the contract.”

So far as the evidence discloses in the case at bar, the plaintiffs did not, as in the California and New York cases, request the Glenn-Lowry company to wire them the prices of the goods. They telegraphed the company an offer for the goods without requesting a reply. Acting for itself and not as the agent of the plaintiffs, the Glenn-Lowry company wired the prices at which it would furnish the goods.

2. When the sender is injured by a mistake in the transmission of a telegram which indicates the character and purport as well as the importance and urgency of the message, the damages recoverable are such as may fairly and reasonably be considered as arising naturally from a breach of it, or may reasonably be supposed to have been in contemplation of the parties at the time of making the contract as the probable result of a breach of it. This is the rule announced in Hadley v. Baxendale, 9 Exch. 341, for ascertaining damages for a breached contract, and the English and many American decisions have applied it in actions for the negligent transmission and delivery of telegraphic messages. We recognized the rule in Ferguson v. Anglo-American Telegraph Co., 178 Pa. 377, which was an action by the sender against the telegraph company for delay in delivering a cipher or unintelligible message. Tn the opinion in that case it is said (p. 384): “To subject the company to the same liability for mistake or delay in the transmission of such (unintelligible) a message that it might be subject to for a like mistake or delay in the transmission of an intelligible message would open the door to the perpetration of fraud, and disregard the well-settled rule of Hadley v. Baxendale, 9 Exch. 341.” The cases of the United States Telegraph Co. v. Wenger, 55 Pa. 262, and Western Union Telegraph Co. v. Landis, 21 W. N. C. 38, were distinguished on the ground that the messages in those cases disclosed the nature of the business to which they related. There was no intention in the Ferguson or any later case to change or modify the doctrine of those cases.

In actions of tort brought by the addressee for the erroneous transmission of an intelligible message, the plaintiff is entitled, under our own cases, to recover the actual damages he has sustained. New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. 298; Western Union Telegraph Co. v. Richman, 19 W. N. C. 569. The contention of the defendant company is that the message involved in this case was in cipher and unintelligible except to the sender and sendees, and hence the doctrine of these cases does not apply. We are not convinced of the correctness of this position. We think the message sent to the plaintiffs disclosed on its face that it related to a business transaction of importance which required immediate attention by the sendees. It was addressed to a well-known business firm of the city of Philadelphia and was signed by the Glenn-Lowry Manufacturing Company. It was dated March 20, 1906, and reads: “Anxious that you sell summer deliveries of decade at chaplet.” There were but two code words in the dispatch and, apart from these, the language is plain and intelligible. It was sent by a manufacturing company and manifestly referred to a commercial transaction. It in terms shows anxiety on the part of the sender that the firm to which it is addressed shall sell something. It will be assumed from the intelligible language employed that some articles of merchandise manufactured by the company were to be sold by the sendees for delivery during the approaching summer. It implied action by the sendees at an early date. The message was sent March 20, and delivered the following day, less than a month and a half before the beginning of summer when the deliveries of the articles sold were to be made. Hence, the necessity for prompt action on the part of the sendees. The only words of the telegram in cipher are the name and price of the article to be sold. These are some of the details of the proposed business transaction, and while important to the parties it was not absolutely necessary that they should be known by the defendant’s operator to inform him of the general character and importance of the transaction. A message need not disclose on its face the nature of the business, so that its meaning as to quantity, quality or value may be disclosed to the operator; if it shows that it relates to a commercial or legal transaction of value it is sufficient: Postal Tel. Cable Co. v. Lathrop (Ill.), 19 Am. St. Rep. 55; Pepper v. Western Union Telegraph Co. (Tenn.), 10 Am. St. Rep. 699. The fact that a telegraphic message is sent and received by parties evidently engaged in business operations and that part of it is in cipher should be notice to the operator that it relates to business matters of importance to the parties, and some of which matters they wish to conceal from the general public and about which they wish to communicate without delay. It is, therefore, sufficient, notice to a telegraph company if the message shows on its face that it relates to a commercial transaction of importance without giving the details of the transaction. This is substantially the rule announced in the many cases on the subject and stated in the standard text-books. In 2 Joyce on Electric Law, sec. 952, it is said: “The rule (requiring the message to indicate its importance) is not to be construed as meaning that all the details in reference to a transaction referred to in a dispatch and which are known to the parties themselves, need be disclosed to the company to render it liable for more than nominal damages.” In Jones on Telegraph and Telephone Companies, sec. 535, the author says: “Although a message may be couched in unusual, or trade language, if it is sufficiently plain to indicate that it relates to a business transaction of much importance, and that loss will probably result unless it is promptly transmitted and delivered, recovery will not be limited to nominal damages.”

The language of the message in Western Union Telegraph Co. v. Landis, 21 W. N. C. 38, is much less intelligible and disclosed less urgency than the language of the message in the present case, yet we held it sufficiently plain on its face to justify a verdict and judgment for the actual loss sustained by the addressee by reason of error in its transmission. The message as deposited with the telegraph company at the stock yards in Pittsburg in that case reads: “One cost six half two wooled Texas five sixty take all off evening.” In course of transmission to the abattoir, West Philadelphia, its destination “sixty” was changed to “six.” In the opinion of the court it is said: “There was enough upon its face to indicate to the operator that it referred to sheep to be shipped to Philadelphia, and the price.”

In Ferguson v. Telegraph Co., 178 Pa. 377, a code name was used for the sendee and there was nothing in the message to indicate the meaning of its contents. The three intelligible words gave no indication of the character or importance of the transaction to which it related. For all purposes of information to the operator, therefore, it might as well have been entirely in cipher.

It is true, as contended by the defendant company, that it was the duty of the plaintiffs to minimize the damages which they had sustained by the negligent conduct of the company. It is equally true, however, that the plaintiffs were required to observe their contract with Garner & Company and deliver the goods they had sold them on the faith of the erroneous telegram. While the goods sold to Garner & Company were standard goods and were similar to goods to be had in the market, the plaintiffs’ contract, as evidenced by the sales note, obliged them to deliver goods manufactured by the Glenn-Lowry Manufacturing Company at its Glenn Mills. This, we think, is clearly the proper interpretation of that note. The provision that the deliveries should be proportionate to the production of the Glemi Mills during a strike or lockout manifestly indicates that the goods sold by the plaintiffs to Garner & Company were the product of the Glenn Mills. Any other construction of this clause of the sales note renders it meaningless and, therefore, such construction is not permissible. There is no evidence in the case that the market price of the Glenn Mills goods was less than five cents per yard, the price the plaintiffs were required to pay the GlennLowry Manufacturing Company for the goods sold to Garner & Company.

If the plaintiffs had been advised of the error in transmitting the telegram before they acted upon it and sold the goods to Garner & Company, they would not be in a position to assert their claim against the defendant. The sale, however, was made prior to the discovery of the mistake in the message and relying on its correctness. The goods sold, as we hold, were the product of the Glenn Mills, owned and operated by the Glenn-Lowry Manufacturing Company. The uncontradicted evidence is that the plaintiffs paid five cents per yard for the goods, and had sold and were required to deliver them to Garner & Company at four and seven-eighths cents per yard, thereby losing one-eighth of a cent per yard on the quantity sold. It is contended, however, by the defendant that the plaintiff received a commission from the manufacturing company of four per cent on the gross selling price of the goods and that the commission amounted to more than one-eighth per cent per yard and, therefore, the plaintiffs sustained no loss. We agree with the learned trial judge that the defendant company cannot defalk, as it were, the plaintiffs’ commissions against the plaintiffs’ loss on the sale. The plaintiffs are the exclusive selling agents and bankers of the Glenn-Lowry Manufacturing Company, and receive a fixed commission of four per cent on all sales of a certain grade of the company’s product. They guarantee to the manufacturing company payment of the price of the company’s goods sold by them. They were entitled to their commission of four per cent on five cents per yard of the goods purchased from the manufacturing company and sold to Garner & Company. Had the mistake not occurred in the message the plaintiffs would not have sold the goods for less than five cents per yard, and hence would not have lost their commission of four per cent. The negligent act of the defendant company caused this loss and it must compensate the plaintiff for the injury done. The commission was compensation for services rendered and liabilities assumed and was the property of the plaintiffs for the loss of which they were entitled to be paid. It was not profit in the correct sense of the term, but if it was, it results from the contract with the manufacturing company, and for its loss, caused by the negligence of the defendant company, the latter is responsible. The recent case of Bowie v. Western Union Telegraph Co., 78 S. C. 424, is very similar to the one in hand. In speaking of the right to recover loss of profits in cases of this character, the opinion says (p. 428): “This test of the measure of damages is not affected by the fact that part of the difference between the contract price and the market price would be profit. The parties are entitled to all the legitimate benefits of the contract, including profits. This general rule is applicable to damages for mistakes in communicating contracts by telegraph, and it was the basis of the decision in Hays v. Telegraph Co., 70 S. C. 16.”

The view we take of this case relieves us from the necessity of determining the proper measure of damages in an action brought by the sendee against a telegraph company for mistakes in transmitting a cipher or unintelligible message.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Wood v. Kerkeslager, Appellant.

      Bankruptcy — A ssignment — Preferences—Collateral security — A ppeals —Practice, C. P. — Affidavits of defense — Supplemental affidavit — Act of March 24, 1818, P. L. 285 — Act of April 17, 1843, P. L. 273 — Act of April 18,1874, P. L. 64.
    1. The extent of indulgence by a court below in allowing supplemental affidavits of defense to be filed is largely in its discretion; but this indulgence is not to be extended after a case has been finally heard and passed upon by an appellate court, except for legal or equitable reasons, of which the defendant could not have availed himself when his original affidavit of defense-was filed.
    2. The provision in the Act of April 18,1874, P. L. 64, that judgment shall be entered for the plaintiff where the refusal of judgment for want of a sufficient affidavit of defense has been reversed by the appellate court unless “other legal or equitable cause” shall be shown, means a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant was ignorant of it through no fault of his' own. •
    3. Where an original affidavit of defense, setting forth that an assignment sued upon is void because it contravenes the Federal Bankruptcy Law is held good by the court below but upon appeal is held to be insufficient, a supplemental affidavit, setting up that the' assignment is void under the state assignment Acts of March 24, 1818, P. L. 285, and April 17, 1843, P. L. 273, should not be permitted to be filed after the return of the record and motion by plaintiffs for judgment.
    4. The assignment Acts of March 24, 1818, P. L. 285, and April 17, 1843, P. L. 273, have no application to an assignment made directly to a creditor, either in satisfaction of a claim or as collateral security for it, and the fact that after the direct assignment and independently of it a trustee is created by the assignee and assignor together for their joint benefit will not bring the assignment within the acts.
    Argued Jan. 20, 1910.
    Appeal, No. 334,
    Jan. T., 1909,. by defendants, from judgment of C. P. No. 5, Philadelphia Co., June T., 1908, No. 2,606, for want of sufficient affidavit of defense in case of William Wood and John P. Wood, trading as William Wood & Company v. Irvin C. Kerkeslager, Lewis Willey and Joseph M. Adams, Trustees in Bankruptcy of Alexander Crow, Jr., appellants.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit arising out of an interpleader.
    Rule for judgment for want of a sufficient affidavit of defense. Before Ralston, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned, was entry of judgment for want of a sufficient affidavit of defense.

      James F. Campbell and W. W. Porter, of Porter, Foullcrod & McCullagh, and with them, Joseph L. Greenwald, for appellants.
    — The assignment is void under the act of March 24, 1818, for want of recording, or enures to the benefit of all the creditors by virtue of the act of April 17, 1843: Watson v. Bagaley, 12 Pa. 164; Wallace & Krebs v. Wainwright, 87 Pa. 263; Johnson’s App., 103 Pa. 373; Fox v. Curtis, 176 Pa. 52; Mann v. Wakefield, 179 Pa. 398; Huey v. Prince, 187 Pa. 151.
    The act of June 4, 1901, with its repealing clauses, is suspended during the pendency of the federal bankruptcy act: Gas Co. v. Haskell, 172 Fed. Repr. 545; Potts v. Smith Mfg. Co., 25 Pa. Superior Ct. 206; Hull’s Est., 10 Pa. Dist. Rep. 661; Dolhenty’s Est., 11 Pa. Dist. Rep. 187; Boggs’s Est., 11 Pa. Dist. Rep. 188; Cassel’s Est., 13 Pa. Dist. Rep. 637; Ranck’s Est., 14 Pa. Dist. Rep. 496; In re Assignment of Clark Electrode Co., 15 Pa. Dist. Rep. 64; Bank v. Gass, 29 Pa. Superior Ct. 125; McMullen’s Petition, 26 Pa. C. C. Rep. 157; Johnson v. Crawford & Yothers, 154 Fed. Repr. 761; Ketcham v. McNamara, 72 Conn. 709 (40 Atl. Repr. 146).

      John G. Johnson, with him W. B. Linn, for appellees.
    — The assignment acts of 1818 and 1843 were expressly repealed by the Act of June 4, 1901, P. L. 404, a statute which is in force in Pennsylvania except when it actually conflicts with the bankrupt act in administration of an estate, and then the conflicting portions are not enforceable because of the federal statute, but the nonconflicting portions are always enforceable: Randolph v. Scruggs, 190 U. S. 533 (23 Sup. Ct. Repr. 710); Beck v. Parker, 65 Pa. 262; Mayer v. Hellman, 91 U. S. 496; Boese v. King, 108 U. S. 379 (2 Sup. Ct. Repr. 765); Steinruck’s Insolvency, 225 Pa. 461; Hull’s Est., 10 Pa. Dist. Rep. 661; Zacharias v. Paint, etc., Co., 11 Pa. Dist. Rep. 171; Lobach v. Riegel, 11 Pa. Dist. Rep. 533; Patty-Joiner v. Cummins, 57 S. W. Repr. 566; Reed v. McIntyre, 98 U. S. 507.
   Opinion by

Mr. Justice Brown,

March 28/1910:

The original affidavit of defense in this case was held to be good by the court below, but, upon appeal, it was held to be insufficient: Wood v. Kerkeslager et al., 225 Pa. 296. Upon return of the record the plaintiffs moved for judgment. This motion was followed three days later by a supplemental affidavit of defense. A rule was thereupon again taken for judgment for want of a sufficient affidavit of defense, and, having been made absolute, we now have the appeal of the defendants.

It does not appear from the record that the supplemental affidavit of defense was filed by leave of court. Under the circumstances the appellants were not entitled to such leave, and, if asked for, it should have been refused. In holding that the original affidavit of defense was insufficient this court directed the record to be remitted and that judgment be entered for the plaintiffs unless other legal or equitable cause be shown why such judgment should not be entered.” These are the words of the Act of April 18, 1874, P. L. 64, under which we are authorized to direct judgment to be entered for want of a sufficient affidavit of defense upon an appeal from the refusal of the court below to enter it, but a reasonable con- . struction is to be given to them. It surely was not intended by the legislature that if a defendant should succeed in satisfying the court below that his affidavit of defense was good, . and, on appeal, it should be held to be insufficient, he should have the privilege of renewing his effort to defeat the plaintiff by filing another affidavit of defense on a matter which was known, or ought to have been known, to him when his original affidavit of defense was filed. If such license is to be given to a defendant, a plaintiff will succeed in obtaining judgment for want of a sufficient affidavit of defense only after the wit and ingenuity of client and counsel have been exhausted in setting forth new defenses after repeated reversals and directions by this court to enter judgment. If the court below should have regarded this supplemental affidavit of defense as good, and, on appeal, we should now hold differently and remit the record with the same order that was made on the first appeal, the plaintiffs might be confronted with a third affidavit of defense, regarded as good by the court below, and their case would become a mere shuttlecock between two, judicial battledores. “Other legal or equitable cause” which a defendant may show to the court below why judgment should not be entered against him after the appellate court has held his affidavit of defense to be insufficient is a cause which did not exist when the affidavit of defense was filed, or, if it did exist, the defendant was ignorant of it through no fault of his own. A single illustration will suffice. A legal reason would be the death of the defendant after the appeal was taken, and an equitable reason for withholding judgment from the plaintiff and permitting an additional affidavit of defense to be filed would be the discovery of a material fact by the defendant during the pendency of the appeal from the refusal of the court below to enter judgment against him, just as after-discovered evidence is often sufficient to move the discretion of a court to grant a new trial to the defeated party. But no such situation is here presented. The defendants had their full day in court, and could have set up what they now allege is a good defense, but neglected to do so.

The disposition of a case on a statement and affidavit of defense is analogous to that of judgment by the court upon the whole record after a jury trial. Every allegation in the statement not denied in the affidavit of defense is to be regarded as an undisputed fact; and every averment in the affidavit of defense is to be taken as true. If from them it appears that no fact is to be found by a jury, the case is as ripe for judgment as it could be after submission to a jury under evidence disclosing nothing to be passed upon by them. After a jury trial and when the court is about to enter judgment upon the whole record non obstante veredicto, its judgment is not to be arrested because the defendant failed to prove an alleged material fact which he knew was in existence at the time of the trial, nor is he to be permitted to set up an additional legal defense which he might have set up either on the trial or on the argument of the motion'for judgment. This is just the situation here. The original affidavit of defense alleged the assignment by Crow to the appellees to be “void,” because it contravened the federal bankrupt law. The allegation in the supplemental affidavit of defense is that it is “void” under our assignment Acts of March 24,1818, P. L. 285, and April 17, 1843, P. L. 273, the contention of counsel for appellants being that these acts are still in force, as the Act of June 4, 1901, P. L. 404, with its repealing clauses, is suspended during the pendency of the federal bankrupt act. Without now passing upon the question of the suspension of the act of 1901, it is sufficient to say that if the assignment to the appellees was void under the acts of 1818 and 1843, the defendants so knew when their original affidavit of defense was filed. Interest rei publicse ut sit finis litium, and the practice of filing a supplemental affidavit of defense under the circumstances just stated is not to be sanctioned. The extent of indulgence by a court below in allowing supplemental affidavits of defense to be filed is largely in its discretion: Andrews v. Packing Company, 206 Pa. 370; but this indulgence is not to be extended after a case has been finally heard and passed upon by an appellate court, except for legal or equitable reasons, of which the defendant could not have availed himself when his original affidavit of defense was filed. Apart from all this, however, the supplemental affidavit of defense is not good.

The assignment from Crow was direct to the appellees, and they took through no trustee. It is as follows: “For valuable consideration and for the sum of $1.00 paid to the first party by the second party, the receipt whereof is hereby acknowledged, the first party does hereby assign, transfer and set over unto the second party the sum of $17,914.59, with interest from date hereof, out of the amount of compensation presently to be determined and payable by the city of Philadelphia to the first party in the matter of the opening of the Parkway between Logan Square and Spring Garden street.” Following this assignment there was a stipulation in the agreement between Crow and the appellees that J. Lee Patton, an attorney-at-law, should receive and collect the said compensation from the city, and out of the sum to be collected by him, after making certain deductions, he was to pay to the appellees the amount due them under the assignment. In holding that the power of attorney to Patton was irrevocable we said, in sustaining plaintiffs’ appeal, that it had constituted him a trustee for the collection of the whole fund. And so he was, but not by virtue of the assignment from Crow to the appellees. The distinction between an assignment to a trustee so named or constituted in a deed of assignment and a trustee created by the assignee and the assignor together for their joint benefit, independently of and after a direct assignment to the assignee, seems to be overlooked by the learned counsel for the appellants. Again, the assignment was not only direct to the appellees, but was as collateral security for Crow’s indebtedness to them, as clearly appears in the last clause of the agreement and as was admitted by counsel for appellants on the former appeal. Bearing with the contention of appellants that the acts of 1818 and 1843 are now in force, it is not an open question that the assignment to the appellees is not within the provisions of either. The act of 1818 defines what assignments are to be void if not recorded. They must be voluntary assignments of a debtor “ to any person or persons in trust for the use of his, her or their creditors, or in trust for the use of such person or persons to whom such assignment may be so made and the other creditors of such assignor.” The assignment must be in trust for all the creditors of the assignor, or to the trustee as one of them for the use of himself and the other creditors. An assignment made directly to a creditor, either as collateral security or in satisfaction of his debt, is not an assignment in trust and need not be recorded under the act of 1818. This was first so decided in Chaffees v. Risk, 24 Pa. 432, which was followed by Henderson’s Appeal, 31 Pa. 502; Vallance et al. v. Miners’ Life Insurance Co., 42 Pa. 441, and Claflin v. Maglaughlin, 65 Pa. 492. Under the act of 1843 an assignment inures to the benefit of all creditors only when it is made to a trustee. The act has no application when the assignment is directly to the creditor himself, either in satisfaction of his claim or as collateral security for it: Penn Plate Glass Co. v. Jones, 189 Pa. 290.

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


text:
    Third National Bank v. Kerkeslager, Appellant.
    Argued Jan. 20, 1910.
    Appeal, No. 337,
    Jan. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., June T., 1908, No. 2,605, for want of sufficient affidavit of defense in case of Third National Bank of Philadelphia v. Irvin C. Kerkeslager, Lewis Willey and Joseph M. Adams, Trustees in Bankruptcy of Alexander Crow, Jr., appellants.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      James F. Campbell, with him Joseph L. Creenwald and Porter, Foulkrod & McCullagh, for appellants.

      John G. Johnson and Humbert B. Powell, for appellee.
   Opinion by

Mr. Justice Brown,

March 28, 1910:

The question involved on this appeal has been disposed of in the opinion filed in No. 334 to the present term, Wood v. Kerkeslager, ante, p. 536, and, for the reasons therein given, the judgment of the court below is affirmed.


author: Per Curiam,

text:
    Carson’s Estate.

      Wills — Rules of construction — Intention—Inequality of provisions.

    1. No rule of construction is to be applied to a will where on the question in issue the will construes itself.
    2. Where it clearly appears by the terms of a will and codicil that the sons and daughters of a brother dying after the testator and leaving a widow to enjoy an annuity of .14,000 are not to receive anything until after her death, while their cousins, children of an uncle who died before the testator, are to enjoy an income during the lifetime of their mother, while she is enjoying an annuity, this apparent inequality being the creation of the testator himself, will not be changed by the court.
    Argued Jan. 31, 1910.
    Appeal, No. 256,
    Jan. T., 1909, by the Real Estate Title Insurance & Trust Co., and Isabel Frances Carson, trustees, and Isabel Frances Carson, individually, from decree of O. C., Montgomery Co., Oct. T., 1908, No. 41, dismissing exceptions to adjudication in Estate of Robert N. Carson, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication of executors’ accounts.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree dismissing exceptions.

      John C. Bell, with him Paxson Deeter and Neville D. Tyson, for appellants.
    — The will and codicil should be construed together and construed to effectuate the intent and general scheme of the testator: Ferry’s App., 102 Pa. 207; Schott's Est., 78 Pa. 40; Findlay v. Riddle, 3 Binn. 139; Roberjot v. Mazurie, 14 S. & R. 42; Boshart v. Evans, 5 Whart. 551; Shalters v. Ladd, 163 Pa. 509.
    The presumption is in favor of equality as between those standing in the same relation to the testator: Roats’s Est., 14 Pa. Dist. Rep. 767.

      Martin J. Wade, with him Joseph Knox Pomace and George P. Grosch, for appellees.
    — -It is the established rule not to disturb the dispositions of a will further than is absolutely necessary for the purpose of giving effect to the codicil: Whelen’s Est., 175 Pa. 23; Lewis’s App., 108 Pa. 133; Spang v. Hill, 2 Woodward, 45; Sheetz’s App., 82 Pa. 213.
    The intention is to be ascertained from the words if of certain, definite meaning: Moran v. Moran, 104 Iowa, 212 (73 N. W. Repr. 617); Jordan v. Woodin, 93 Iowa, 453 (16 N. W. Repr. 948); Gilmore v. Jenkins, 129 Iowa, 686 (106 N. W. Repr. 193); Young’s Est., 123 Cal. 337 (55 Pac. Repr. 1011); Senger v. Senger, 81 Va. 687; Bingel v. Volz, 142 Ill. 214 (31 N. E. Repr. 13), 16 L. R. A. 321.
   Per Curiam,

March 28, 1910:

The testator, by the fifth clause of his will, gave his residuary estate to his executors in trust, directing them, inter alia, as follows: “To pay from the said net income unto each of my brothers and sister who shall survive me, an annuity or yearly sum of Six thousand dollars, in quarterly payments, in each and every year from the time of my decease, for and during all the terms of their natural lives, respectively; upon the decease of any of my said brothers and sister, the payment of the said annuity or yearly sum shall cease and end, so far as concerns the one or those so dying.

“To set apart as many sums of Twenty thousand dollars as I shall leave nephews and nieces surviving me (such nephews and nieces being the chiidren of any of my brothers or sister who shall have died in my lifetime) and to pay the net income from each of the said sums of Twenty thousand dollars in quarterly payments in each and every year from the time of my decease unto the said nephews and nieces for and during all the term of their natural lives respectively.

“From and immediately after the decease of each of my brothers and sister who shall survive me, to set apart so many further sums of Twenty thousand dollars, as I may leave surviving me, nephews and nieces, children of my said brothers and sister who shall so survive me, and to pay unto each of my said nephews and nieces, the net income and interest of each of the sums of Twenty thousand dollars in quarterly payments, in each and every year from the time of the decease of their father or mother, being my brothers or sister, as aforesaid, for and during all the term of their natural lives respectively.”

The foregoing was modified by the following codicil: “Whereas, in and by the fifth clause of my said will, I did give devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, whatsoever and wheresoever, unto my executors thereinafter named, to hold the same In Trust, to collect the rents, interests and income thereof, and after deducting all necessary and proper expenses, inter alia, 'To pay from the said net income unto each of my brothers and sister who shall survive me, an annuity or yearly sum of Six thousand dollars, in quarterly payments, in each and every year from the time of my decease, for and during all the term of their natural lives, respectively; upon the decease of any of my said brothers and sister, the payments of the said annuity, or yearly sum shall cease and end, so far as concerns the one or those so dying.’

“Now I do hereby change alter and amend the above recited and quoted provisions of the fifth clause of my said will in manner following, so that the said provisions shall read as follows: — 'To pay from the said net income unto each of my brothers and sister who shall survive me, an annuity or yearly sum of Six thousand dollars, in quarterly payments, in each and every year from the time of my decease, for and during all the term of their natural lives, respectively; upon the decease of each of my said brothers leaving a widow him surviving, or in the event of the death of either of my brothers in my lifetime leaving a widow him surviving, then to pay over out of the said net income unto the widow of such deceased brother, the annuity or yearly sum of Four thousand dollars, in quarterly payments in each and every year from the time of the decease of my said brothers who may survive me, or from the period of my own death, should said brothers die before me leaving widows, for and during all the term of the natural lives of said widow or widows respectively; upon the decease of any of my said brothers and their widows, and of my said sister as aforesaid, the payment of the said annuity or yearly sum shall cease and end, so far as concerns the one or those so dying.’

“And whereas, in and by the said fifth clause of my said will I did will and direct as follows, to wit: 'From and immediately after the decease of each of my brothers and sister who shall survive me, to set apart so many further sums of Twenty thousand dollars, as I may leave surviving me nephews and nieces, children of my said brothers and sister who shall so survive me, and to pay unto each of my said nephews and nieces, the net income and interest of each of the sums of Twenty thousand dollars in quarterly payments in each and every year from the time of the decease of their father or mother, being my brothers or sister as aforesaid, for and during all the term of their natural lives, respectively.’

“Now I do hereby change, alter and amend the last above recited and quoted provision of the fifth clause of my said will, in manner following, so that the said provision shall read, as follows: 'From and immediately after the decease of each of my brothers and their widows who shall survive me, respectively, I direct my executors to set apart-so many further sums of Twenty thousand dollars as I may leave surviving me, nephews and nieces, children of my said brothers who shall survive me, and to pay unto each of my said nephews and nieces, the net income and interest of each of the sums of Twenty thousand dollars in quarterly payments in each- and every year from the time of the decease of their fathers, being my brothers, as aforesaid, and the widows of my said brothers, for and during all the term of their natural lives respectively, it being my intention, however, that these provisions shall in no event take effect until after the death of both parents of my said nephews and nieces, children of my said brothers and sister, respectively.’ In all other respects I hereby ratify and confirm my said last will and testament as written.”

■ One of the testator’s brothers survived him. Another died in his lifetime, leaving to survive him a widow and five sons. The widow receives her annuity under the codicil, and her five sons claim that, under the fifth clause of the will, they are each entitled to the income from $20,000, although their mother is at the same time receiving her annuity; and the court below so held. If sons and daughters of a brother dying after the testator and leaving a widow, to enjoy the annuity of $>4,000, are not to receive anything until after her death, while their cousins, children of an uncle who died before the testator, are to enjoy an income during the lifetime of their mother, while she is enjoying an annuity, this apparent inequality was created by the testator himself. It would be a work of supererogation to enter upon any discussion of his intention, so clearly expressed, that the children of a brother who died in his lifetime should take income from the time of his death. The provision made for the children of a brother who might die in his lifetime remains unchanged by the codicil, for the testator distinctly says so. The only change he makes as to the enjoyment by nephews and nieces of income from his estate is that the children of a brother who shall survive him shall not enjoy such income until after the death of both their father and mother. Nothing at all is said as to the provision in the fifth clause of the will for children of a brother who might die in the lifetime of the testator, and the concluding words of the codicil are: “In all other respects I hereby ratify and confirm my said last will and testament.”

No rule of construction is to be applied to the testator’s will on the question raised by the appellants, for as to it the will construes itself, and the court below but followed its self-construction in directing that the appellees be paid income from the time of their uncle’s death.

Appeal dismissed at appellants’ costs.


text:
    Neuweiler v. Biever, Appellant.

      Mortgages — Payments of interest — Binding instructions.

    On a sci. fa. on a mortgage to which the only defense is that a former terre-tenant made payments of the interest to the holder which were not properly credited, binding instructions for the plaintiff are correct, where from an examination of the testimony it is doubtful if any such payments were made, and it is certain that, if made, there was nothing to show when or what they amounted to.
    Argued Jan. 31, 1910.
    Appeal, No. 351,
    Jan. T., 1909, by defendants, from judgment of C. P. Lehigh Co., Sept. T., 1908, No. 42, on verdict for plaintiff by direction of the court in the case'of Louis F. Neuweiler, assignee of Frank P. Lauer, v. William J. Biever, mortgagor, and Frank P. Lauer, terretenant.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Téexler, P. J.
    The plaintiff claimed to be due the principal of the mortgage and interest from January 3, 1906. Defendant admitted the principal but averred that the interest had been paid up to January 1, 1908. Other facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $6,627.50. Defendant appealed.

      Error assigned was in giving binding instructions for the plaintiff.

      Frank Jacobs, for appellant.

      Thomas F. Diefenderfer, for appellee.
   Per Curiam,

March 28, 1910:

The only defense which the appellant, terre-tenant of the mortgaged premises, attempted to set up was that a former terre-tenant had made payments to the holder of the mortgage on account of interest for which proper credits were not given. From an examination of the brief testimony it is doubtful if any such payments were made, and it is certain that if any were made, there was nothing to show when, or what they amounted to. There was an open book account between the holder of the mortgage and the terre-tenant, and, according to the testimony of the former, the payments made by the latter were credited on that account. In directing a verdict for the plaintiff the learned trial judge correctly held that nothing sufficiently certain was proven as to the alleged payments of interest to allow the case to go to the jury. Judgment affirmed.


text:
    Cornman v. Hagginbotham, Appellant.

      Constitutional law — Local and special legislation — Townships of the first class — Collection of taxes — County treasurers — Act of May 28, 1907, P. L. 273 — Act of May 1, 1909, P. L. 301.
    1. When the legislature enacts general laws to secure uniformity of procedure and to displace local legislation, courts should not be over astute to defeat the purpose.
    2. The court will look at the substance and not the form of legislation in determining whether an act is general or special. A local or special act repugnant to the general law will be declared void, though it may be disguised as a general act.
    3. The Act of May 28, 1907, P. L. 273, relating to the collection of taxes in townships of the first class is not unconstitutional; it is not special or local legislation within the meaning of sec. 7, art. Ill, of the constitution; it does not offend against sec. 6, art. Ill, of the constitution when it declares that the township treasurer shall have the powers of the tax collector whose office was abolished in townships of the first class; nor does it offend against sec. 13, art. Ill, of the constitution, as diminishing the emoluments of a public officer during his term.
    4. The Act of May 1, 1909, P. L. 301, is unconstitutional: because it is an attempt indirectly to enact a special or local law by the partial repeal of a general law, contrary to sec. 7, art. Ill, of the constitution; and because it is special or local legislation inasmuch as it is an attempt to affect only a part of the townships of the first class as to a matter in which all first class townships have exactly the same interests.
    5. The special Act of March 17, 1868, P. L. 342 was repealed by the General Act of May 28, 1907, P. L. 273.
    Argued Feb. 1, 1910.
    Appeals, Nos. 373, 374 and 375,
    by defendant, from decrees of C. P. Montgomery Co., March T., 1909, Nos. 8, 9 and 10, on bills in equity in cases of William H. Murphey, Township Treasurer of Cheltenham Township v. William M. Hagginbotham, Treasurer of Montgomery County John M. Harmer, Township Treasurer of Abington Township, v. William M. Hagginbotham, Treasurer, etc., and Henry D. Cornman, Township Treasurer of Lower Merion Township, v. William M. Hagginbotham, Treasurer, etc.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The facts appear in the following opinion by Swartz, P. J.
    This is a contest over the right to collect state and county taxes for. 1909, in a township of the “first class. Such right being claimed by the township treasurer of Lower Merion township, Montgomery county, and also . by the county treasurer of said county.
    FINDINGS OF FACT.
    1. Lower Merion township in the county of Montgomery is a township of the first class, since December 7, 1899.
    2. Henry D. Cornman was duly elected and is acting as treasurer of said township, having been elected as treasurer at the general township election held in said township on the third Tuesday in February, 1909, for the term of three years.
    3. That the defendant, William M. Hagginbotham, is the county treasurer of said county, having been duly elected at the general election held in said county, on November 5, 1907.
    4. That the county commissioners of said county claiming to act under the provisions of the act of March 17, 1868, P. L. 342, and the act of May 1, 1909, have issued to the said William M. Hagginbotham the duplicates for the state and county taxes levied or assessed in the said township of Lower Merion, and the said William M. Hagginbotham as such treasurer for the county of Montgomery, is proceeding to collect said taxes.
    CONCLUSIONS OF LAW.
    1. The Act of May 28, 1907, P. L. 273, is not unconstitutional.
    (a) It is not special or local legislation within the meaning of sec. 7 of art. Ill of the constitution of Pennsylvania.

      (5) It does not offend against sec. 6 of art. Ill of the constitution when it declares that the township treasurer shall have the powers of the tax collector whose office was abolished in townships of the first class.
    (c) The act does not offend against sec. 13 of art. Ill of the constitution. It does not diminish the emoluments of the county treasurer or constable after they were elected.
    2. The act of May I, 1909, numbered 194, of the acts of the General assembly of the year 1909, is unconstitutional.
    (a) Because it is an attempt to indirectly enact a special or local law by the partial repeal of a general law, contrary to sec. 7 of art. HI of the constitution.
    (6) Because it is special or local legislation inasmuch as it is an attempt to affect only a part of the townships of the first class upon a matter in which all first class townships have exactly the same interests.
    ARGUMENT.
    The said act of May 28, 1907, is not local or special legislation.
    The courts have held that classification of townships into townships of the first class and townships of the second class is not prohibited by the constitution: Commonwealth v. Blackley, 198 Pa. 372; Krzykwa v. Croninger, 200 Pa. 359.
    The various powers conferred upon townships of the first class by the act of 1899, which made the classification, as well as by the numerous subsequent acts, show the wisdom of the classification and the differences in the needs of the respective classes. There are manifest peculiarities clearly distinguishing one class from the other, and these differences demand legislation for each class, separately, that would be useless and detrimental to the other: Commonwealth v. Gilligan, 195 Pa. 504. A law applying to townships of the first class is, therefore, not special or local.
    But it is argued that there is no difference in the needs of the respective classes that calls for a different system of tax collection. If this were a new question it might be of interest to inquire whether there were not differences in the respective needs of the two classes even so far as the collection of taxes is concerned.
    The act of 1885 provided for the election of a township tax collector in townships and boroughs. The act was held constitutional, Evans v. Phillipi, 117 Pa. 226, “We hold the act of 1885 to be a general law. It is a general law relating to the collection of taxes, in the boroughs and townships of the state; boroughs and townships are created by general laws, and are the proper subjects of appropriate, independent, general legislation as such; and the act establishes a general system peculiarly adapted to the convenience and necessities of the municipal divisions named.” What is said as to these municipal divisions is equally true of townships of the first class.
    To separate boroughs from cities was just as marked a division under the act of 1885 as the separation of townships of the first class from those of the second class under the act of 1907. Both acts refer to the same subject matter, to wit: How the state and county taxes shall be collected, or rather who shall collect them. If the act of 1885 is not local legislation, it follows that the act of 1907 cannot be. That the act of 1885 was not in violation of the constitution as a local or special enactment obnoxious to sec. 7 of art. Ill of the constitution or in conflict with sec. 1 of art. IX, requiring uniformity in the levy and collection of taxes, was reaffirmed in Bennett v. Hunt, 148 Pa. 257, and Commonwealth v. Lyter, 162 Pa. 50.
    We do not consider that the case of Van Loon v. Engle, 171 Pa. 157, militates against the views expressed in Evans v. Phillipi and its followers. In the Van Loon v. Engle case, the serious difficulty in the way of the Act of June 2, 1881, P. L. 45, was the provision of the constitution that no liens should be created or extended by a local or special law. Mr. Justice Williams wrote the opinion in the Van Loon case, and we note that he drew a clear distinction between an act which attempts to regulate the collection of taxes and one which attempts to formulate a method by which a lien for taxes may be created. In Com. v. Macferron, 152 Pa. 244, he said, “We are asked to reverse the court below for the reason that an act relating to the collection of taxes, in a given class of cities, is local and violates sectiqn one of article IX of the constitution. We regard this question as already settled against the appellant. We have repeatedly held that the power to classify being conceded, the conclusion that an act passed for a class was not a local law, within the prohibition of the constitution was irresistible.”
    The act of 1907 does not offend against sec. 6 of art. Ill of the constitution. This section declares, “No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title, but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length.”
    The act of 1907 in its first section abolishes the office of township tax collector, in townships of the first class, and directs that the township treasurer of the respective townships shall collect taxes. The section then provides that the township treasurer shall have all the powers and be subject to all the responsibilities that are now conferred upon or imposed upon the collectors of taxes. In other words the powers and duties of a tax collector are in no manner changed. The many acts relating to tax collectors are to remain as they now stand upon the statute books. The duties, powers and laws governing the office of tax collector remain unchanged, although the collector is called by a different name. He is elected by the same people and calling him township treasurer does not change the law as to the powers, duties and responsibilities conferred and imposed upon tax collectors by the existing laws in the various counties. If these powers and duties had not been referred to in the act of 1907, they would have devolved upon the tax collector and he would have been governed by them, no matter under what name he acted as the duly qualified collector. “No act can be rendered unconstitutional by a section which makes no change whatever in the law as it was before, and which might have been omitted without any effect whatever,” Knisely v. Cotterel, 196 Pa. 614.

      True, in the county .of Montgomery, the county treasurer collected the state and county taxes with the aid of the constable, after September 15, in each year, but the powers and duties conferred upon the county treasurer .and the constables, so far as they govern the office of collector itself, remain unchanged. To re-enact and publish at length the duties and powers of a tax collector as declared in the various acts of assembly, now in force, would be utterly useless.
    - We think the objection of the constitutionality of the act of .1907, so far as the point now under consideration is concerned, is answered by the opinion of the court in Lloyd v. Smith, 176 Pa. 213. The act then before the court substituted in certain counties the office of county controller for that of county auditor. Section 15 of said act provided, “All the duties devolved on the county auditors by the Act of April 15, 1834, P. L. 537, and all powers conferred on them by said act shall be performed and exercised by the county controller.” Here powers and duties are conferred by reference to the date of a certain act. The title is not given and of course the powers conferred are not re-enacted and published. Among other things the court said, “The fifteenth section of the act of 1895 is not a revival, amendment, extension or conferring of the provisions of the act of April 15, 1834, so as to bring it within the prohibition of section 6 of article III of the constitution. It makes no change in the duties of the office, but merely in the name of the officer by whom they are to be performed. If the act had provided 'the officer now known as the county auditor shall hereafter in all counties having one hundred and fifty thousand inhabitants and over, be called the county controller, and shall in addition to the duties and powers of said officer have the following,’ then enumerating the new duties and powers .covered by the act, its effect would have been precisely the .same, and yet it could hardly have been contended that it was unconstitutional for not re-enacting at length all the provisions of the act of 1834.” The act of 1885 creating the office of tax collector has the same provision, and this act was before the Supreme Court again and again and its constitutionality was never successfully attacked.
    The act of 1907 was passed on May 28, 1907. The county treasurer was elected in November, 1907, and the triennial election for constable was held in February, 1908, so that the persons who would be affected by the act of 1907 were elected after the passage of the act. They knew that if the act prevailed the township treasurers would receive the tax duplicates for 1909. The respective terms of the township tax collectors in office, when the act of 1907 was passed, expired before the taxes for 1908 became collectible. The act of 1907, gave full notice that it would go into effect as soon as the collectors in office had fulfilled their respective terms.
    The emoluments of the county treasurer were not diminished after his election, they were fixed definitely before his election. That he would not receive the duplicates for townships of the first class for the year 1909 was fixed in 1907, before his election to office in that year. There was no contingency as to the time when the act of 1907 should go into effect. In this respect the case differs from that cited by the defendant’s counsel, Guldin v. Schuylkill County, 149 Pa. 210. The county passed into the class having a population of 150,000, but when that condition should arise no one could positively state at the time the coroner was elected. At least no census had determined that the county entered the higher class and the federal census was the method by which the fact must be ascertained. There was in that case “an agreed consideration” that the compensation should continue as prescribed, at the time the coroner accepted his office. In our case no such agreement can be urged, for the county treasurer was informed that his salary or compensation was fixed at different basis for 1909 from that which prevailed in 1908 and this notice he had prior to his election.
    We cannot give effect to every part of the act of 1907, without holding that the special Act of March 17,1868, P. L. 342, is repealed. The provision in the second section of the act of 1907, “that it is purpose and intent of this act that no taxes shall be collected in any township of -the first class of this commonwealth, save only by the treasurer of said township,” is entirely ignored if we allow the special act of 1868 to stand or remain. It is evident that the purpose of the act is to secure uniformity in the office of tax collectors for townships of the first class. Local acts are not favored by our constitution. When our legislature enacts general laws to secure uniform procedure and to displace local legislation, courts should not be over astute to defeat the purpose. In the ten counties in which there are townships of the first class, the methods of securing tax collectors are about as varied as special legislátion can make them.
    We conclude that the act of 1907 is constitutional.
    An. examination of the act of May 1, 1909, satisfies us that it cannot be sustained. It is clearly an attempt to restore to the county treasurer that which was taken away from him by the act of 1907.
    The act of 1909 is defined in its title as an amending act. It purports to amend the second section of the act of 1907. It cited this section for amendment. The second section as originally enacted was careful to repeal all laws general and special which might interfere with a township treasurer in his collection of all taxes in his township. This was made the more emphatic by a specific declaration that no taxes shall be collected in any township of the first class save only by the treasurer of the said township. The act of 1909 now attempts to strike down this general provision that all local laws are repealed, by declaring that the county treasurers shall continue to collect state and county taxes wherever by existing laws such duties and powers were conferred upon him.
    The act of 1907 repealed the special act of 1868 applicable to the treasurer of Montgomery county, if we are correct in our interpretation of the act of 1907. The terms of the tax collectors throughout the state expired on the first Monday of April, 1909. It was then that the act of 1907, according to its terms, went into effect. The act of 1909 was not passed until a month later. There was no general act giving to county treasurers the right to collect taxes. If there was any such general act it was repealed by the act of 1885. That act repealed all general acts inconsistent with its provisions, but saved all local acts. So far, therefore, as the act of 1909 attempted to restore to county treasurers the powers of a tax collector it attempted to revive a local law. The act of 1907 was a general law as already shown. We may call the act of 1909 an amendment, but the name cannot disguise the fact that it is a partial repeal of the general act of 1907 whereby a local act is indirectly enacted contrary to the provisions of the seventh section of article III of the constitution.
    There was no existing law on May 1, 1909, giving to county treasurers the power to collect state and county taxes. Prior to 1907 there was a local act in Montgomery county to that effect. There was a similar local act in the county of Allegheny. These were the only counties having townships of the first class and local acts giving to the county treasurer the right to collect state and county taxes. If we give effect to the act of 1909, we have the two local laws restored, one for Montgomery and one for Allegheny. There wás no power in the legislature to enact such special laws, without publication. If we sustain the act of 1909 then the legislature may do indirectly what it cannot do directly. It is said that the amendment of 1909 speaks as of the day when the act of 1907 was passed. This no doubt is true so far as the amendment speaks within legislative authority. But this rule cannot be invoked to defeat the constitution itself. A rule of interpretation of statutory enactments which sustains local legislation in conflict with the seventh section of article III of the constitution must give way to the mandates of the constitution. “Existing laws,” as used in the act of 1909, must mean existing at the time of the passage of the act of 1909. This was the interpretation given to a similar amendment in Webster v. State, 82 S. W. Repr. 179 (Tenn.).
    The court will look at the substance and not the form of legislation in determining whether an act is general or special. A local or special act repugnant to the fundamental law will be declared void, though it may be disguised as a general act, Sample v. Pittsburg, 212 Pa. 533. The act of 1909 establishes a local system for the collection of taxes. It applies to the counties of Montgomery and Allegheny alone. It is manifest that this must have been the intent of the act for it was sure to bring about such a result. It was beyond the power of the legislature to bring about such a result without bringing itself in conflict with the constitution. The act is, therefore, void: Chalfant v. Edwards, 173 Pa. 246.
    There are many general acts of the legislature with a section repealing certain local acts. It would be an easy matter to circumvent the prohibition against local legislation, if years after an act is passed, a law, in the guise of an amendment, may be enacted, whereby the former repealing clause is modified so as to revive one or more of the local laws covered by the former repealing clause.
    We conclude that the act of 1909 is a clear ease of an attempt to revive a local law. The act is local legislation.
    We express our thanks to counsel on each side for the valuable briefs submitted.
    . And now July 1,1909, after final hearing on bill and answer, and after due consideration, it is ordered and adjudged that the prothonotary enter a decree nisi directing and requiring the said defendant, treasurer, of Montgomery county, to return to the county commissioners of said county the tax duplicates for state and county taxes for Lower Merion township, delivered to him, so that the said duplicates may be delivered to the said plaintiff, the township treasurer of Lower Merion township, for the collection 'Of taxes by him as provided by the act of May 28, 1907, and, unless exceptions are filed to our findings and conclusions of law' as provided by the equity rules, the prothonotary will enter a final and absolute decree accordingly as of course. The costs are placed upon the defendant.

      Error assigned was the decree of the court.

      J. Whitaker Thompson, with him C. S. Eheive, for appellant.
    — Assuming the constitutionality of the act of May 28, 1907, that act did not repeal the local Act of March 17, 1868, P. 'L.- 342, and-the supplements thereto providing for the collection of state and county taxes by the county treasurer of the county of Montgomery: Monongahela Bridge Co. v. Pittsburg & Birmingham Railway Co., 114 Pa. 478; Commonwealth v. Cuyler, 5 W. & S. 275; Thomas v. Hinkle, 126 Pa. 478; Brady St., 99 Pa. 591; Kolb v. Church, 18 Pa. Superior Ct. 477.
    The act of May 28, 1907, is unconstitutional in that it offends against the provisions of art. Ill of sec. 6 of the constitution: Donohugh v. Roberts, 11 W. N. C. 186; Pittsburg’s Petition, 138 Pa. 401; Titusville Iron Works v. Keystone Oil Co., 122 Pa. 627.
    The act of 1907 is unconstitutional because it is a local or special law: Chalfant v. Edwards, 173 Pa. 246; Montgomery v. Com., 91 Pa. 125; Scranton v. Silkman, 113 Pa. 191; Van Loon v. Engle, 171 Pa. 157; Evans v. Phillipi, 117 Pa. 226:

      Ardemus Stewart, with him John M. Dettra, Montgomery Evans and Frank S. Gentry, for appellees.
    — The Act of May 28, 1907, P. L. 275, did repeal the local Act of March 17, 1868, P. L. 342, and the supplements thereto in so far as those acts apply to the collection of taxes in townships of the first class: Haddock v. Com., 103 Pa. 243; Pittsburg v. Kalchthaler, 114 Pa. 547; Sener v. Ephrata Boro., 176 Pa. 80; Com. v. Pedder, 208 Pa. 28.
    The act of May 28, 1907, does not offend against the provisions of sec. 6 of art. Ill of the constitution: In re Greenfield Ave., 191 Pa. 290; Machinery Co. v. Browne, 206 Pa. 543; Com. v. Black Co., 223 Pa, 74; Lloyd v. Smith, 176 Pa. 213.
    The act of May 28, 1907, is not a local or special law: Com. v. Blackley, 198 Pa. 372; P. & R. Coal & Iron Co.’s Petition, 200 Pa. 352; Anderson v. Lower Merion Township, 172 Pa. 369; Kilgore v. Magee, 85 Pa. 401; Lehigh Valley Coal Co.’s App., 164 Pa. 44; Com. v. Gilligan, 195 Pa. 504; Phila. Co.’s Petition, 210 Pa. 490; Knisely v. Cotterel, 196 Pa. 614; Evans v. Phillipi, 117 Pa. 226; Com. v. Lyter, 162 Pa. 50; Nether Providence School Dist. v. Montgomery, 38 Pa. Superior Ct. 483; Clarion County v. Clarion Township, 222 Pa. 350; Hughesville Borough School Dist. v. Wolf Township School Dist., 40 Pa. Superior Ct. 311; Poor District v. Lawrence County, 34 Pa. Superior Ct. 602, aff’d 222 Pa. 358.
    The Act of May 1, 1909, P. L. 301, is unconstitutional, as in violation of sec. 7, art. Ill of the constitution: Montgomery v. Com., 91 Pa. 125; Scranton School District's App., 113 Pa. 176; Scranton v. Silkman, 113 Pa. 191; Chalfant v. Edwards, 173 Pa. 246; Sample v. Pittsburg, 212 Pa. 533; Ayar’s App., 122 Pa. 266; Com. v. Patton, 88 Pa. 258; Blankenburg v. Black, 200 Pa. 629; Luzerne Water Co. v. Toby Creek Water Co., 148 Pa. 568; Fowler v. Columbia County, 18 Pa. C. C. Rep. 653; Henderson v. Koenig, 68 S. W. Repr. 72; Little v. State, 35 So. Repr. 134.
   Per Curiam,

March 28, 1910:

.The same question is involved in these three appeals, which were argued together, and the decree in each case is affirmed on the opinion of the court below in Cornman, Township Treasurer, v. Hagginbotham, County Treasurer, No. 375 of the present term, the costs in each case to be paid by the appellant. ✓


text:
    Chidester’s Estate.

      Wills — Testamentary capacity — Expert opinion — Undue influence— Professional relations between beneficiary and decedent.

      1. An issue devisavit vel non will be denied where it appears that the decedent, at the time of the execution of the will and codicil in question, was conducting her own affairs, transacting her business, knew her properties, her relatives and her friends, and knew what she wanted to do with them, and that it was not until six months after the execution of the codicil that she gave up her attendance on her business and about one year after that she began to act strangely. In such a case neither the fact that decedent was extravagant and forgetful nor the opinions of experts have much weight.
    2. The fact that the two chief beneficiaries under a will may have sustained close business and professional relations with the testatrix does not shift the burden to them of proving that they did not exert undue influence where the will and codicil were both prepared by the attorney of the testatrix from information which she gave him and were executed by her in his presence and that of his two office associates alone, who, with him, witnessed their execution.
    3. The mere fact that a decedent had meretricious relations with one of the chief beneficiaries in her will, does not in itself furnish sufficient evidence of coercion or restraint by such beneficiary in the making of the will.
    Argued Feb. 1, 1910.
    Appeal, No. 218,
    Jan. T., 1909, by Ida M. MacArthur from decree, of O. C. Phila. Co., April T., 1908, No. 777, refusing an issue devisavit vel non in estate of Lizzie E. Chidester.
    Before Brown, Mestrezat, Potter, Eltcin and Stewart, JJ.
    Affirmed.
    Petition for an issue devisavit vel non.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree refusing an issue.

      James G. Gordon, with him Claude L. Both, George W. Coles and Frederick J. Shoyer, for appellant.
    — The testimony relating to the mental and physical condition of decedent after August 1, 1906, is relevant and material as a basis for an inference as to her condition at the time of making the codicil: Herster v. Herster, 122 Pa. 239; Leech v. Leech, 21 Pa. 67; Delafield v. Parish, 25 N. Y. 9; Chappell v. Trent, 90 Va. 849 (19 S. E. Repr. 314).
    There was a presumption of undue influence: Robinson v. Robinson, 203 Pa. 400; Armor’s Est., 154 Pa. 517; Boyd v. Boyd, 66 Pa. 283.
    Where there are sufficient circumstances to warrant an inference of undue influence, positive evidence is not required: Reichenbach v. Ruddach, 127 Pa. 564; Bryant v. Pierce, 95 Wis. 331 (70 N. W. Repr. 297); Miller’s App., 179 Pa. 645; Miller v. Miller, 187 Pa. 572; Friend’s Est., 198 Pa. 363; Robinson v. Robinson, 203 Pa. 400; Herster v. Herster, 116 Pa. 612; Adams’s Est., 220 Pa. 531; Caven v. Agnew, 186 Pa. 314.

      Theodore F. Jenkins and John C. Bell, with them I. Hazel-ton Mirkil and Francis E. Brewster, for appellees.
    — Testamentary capacity is presumed and the contrary must be shown to entitle a caveator to an issue: McMaster’s v. Blair, 29 Pa. 298; Grubbs v. McDonald, 91 Pa. 236; Palmer’s Est., 219 Pa. 303; Friend’s Est., 198 Pa. 363.
    The facts and circumstances are the primary evidence upon which a jury must rely and not the opinion of witnesses as to soundness of mind or capacity to make a will: Browne v. Molliston, 3 Whart. 129; Irish v. Smith, 8 S. & R. 573; Tasker’s Est., 205 Pa. 455; Roche v. Wegge, 202 Pa. 169; Draper’s Est., 215 Pa. 314; Kane’s Est., 206 Pa. 204; Richmond’s Est., 206 Pa. 219; Fuller’s Est., 222 Pa. 182; Morgan’s Est., 219 Pa. 355; Alexander’s Est., 206 Pa. 47; Roberts v. Clemens, 202 Pa. 198; Teed’s Est., 225 Pa. 633; Trust Co. v. McCrew, 219 Pa. 606; Cauffman v. Long, 82 Pa. 72; Ferner v. Byers, 219 Pa. 160; Moyer’s Est., 220 Pa. 356; Leech v. Leech, 21 Pa. 67; Stevenson v. Stevenson, 33 Pa. 469.
    The burden of proving undue influence is upon the contestants: Herster v. Herster, 122 Pa. 239; Miller v. Oestrich, 157 Pa. 264; Douglass’ Est., 162 Pa. 567; Messner v. Elliott, 184 Pa. 41; Trust Co. v. McCrew, 219 Pa. 606; Tawney v. Long, 76 Pa. 106; Heilbrun’s Est., 27 W. N. C. 375; Yorke’s Est., 185 Pa. 61; Adams’s Est., 220 Pa. 531; Masterson v. Berndt, 207 Pa. 284.
   Per Curiam,

March 28, 1910:

One of the questions passed upon by the court below in disposing of the application for an issue devisavit vel non was the sufficiency of the proofs submitted by the appellant as to the alleged testamentary incapacity of the testatrix. If those proofs failed to show lack of testamentary capacity at the time the will and codicil were executed, it was immaterial that subsequently her mind may have become so impaired that she was not capable of intelligently disposing of her property. The will was executed in January, 1905, though dated April 20, 1904, and the codicil was signed August 1, 1906. That testatrix had full testamentary capacity at the time she executed these instruments was an inevitable conclusion from the testimony, a recital of which is not called for here. The learned judge who heard it, after reciting the facts established by it, correctly concluded: “It would seem to the Judge who has heard this case an affectation almost to refer to the authorities to show that the decedent had testamentary capacity at the time she executed this will and codicil. She was conducting her affairs, transacting her business, knew her properties, her relatives and her friends, and knew what she wanted to do with them. No one at that time ever questioned her capacity, nor thought of disregarding her orders or resisting her control; and it was not until six months after the execution of the codicil that she gave up her attendance in her business, and about a year after when she began to act strangely. She was, in the minds of those who did business with her, a woman of unusual ability, and the fact that she may have wasted some of her money in extravagant purchases (a weakness common to so many of her sex), that she made memoranda of things she was unfamiliar with, as the things used in the stable, that she complained of her head occasionally, that she was forgetful, and the opinion of experts, have very little weight in such a case. (Morgan’s Est., 219 Pa. 355.) In the evidence heard, the expert testimony given by eminent physicians who testified for the contestants was neutralized by the testimony of equally eminent physicians, who testified to the opposite conclusion as experts for the proponents, and even without that their conclusions, founded as they were on suppositions and opposed by the facts of the case, could not have weight enough to sustain a verdict. The issue as to testamentary capacity must be denied.” These conclusions were concurred in by the entire court in banc. Equally insufficient were the proofs as to undue influence. The two chief beneficiaries may have sustained close business and professional relations with the testatrix, which might have enabled them to exert undue influénce, but the burden was not shifted to them to prove that they had not exerted it, for the uncontradicted testimony is that the will and codicil were both prepared by the attorney of the testatrix from information which she gave him and were executed by her in his presence and that of his two office associates alone, who, with him, witnessed their execution. There was no testimony that the beneficiaries knew their contents or that they were in existence until some time after they had been executed. If there were meretricious relations with one of the beneficiaries, they did not in themselves furnish sufficient evidence of coercion or constraint: Allshouse v. Kelly, 219 Pa. 652. The appeal is dismissed and the decree of the court below affirmed at the costs of appellant.