author: Mr. Justice Mestrezat,

text:
    Schultheis v. Sellers, Appellant.

      Promissory notes — Action by indorsee against maker — Fraud—Burden of proof — Affidavit of defense.

    1. In an action on a promissory note the holder is required to show the consideration he paid for it and how it came into his hands where the defendant proves that it was put into circulation fraudulently.
    2. To support an action by the indorsee of negotiable paper against the maker, in the first instance it is only necessary for the plaintiff to put the paper in evidence, then, if the defendant proves that the paper was put in circulation by fraud, or undue means, his defense will prevail, unless the plaintiff establishes that he acted fairly and paid value.
    3. In an action by an indorsee against the maker of a promissory note, the plaintiff averred in his statement that he was a bona fide holder for value before maturity of the note, and that he took it without any notice of any defects or infirmities therein. The defendant filed an affidavit of defense in which he denied the averments of the statement, and charged that the payee named in the note acting as agent of a publisher, induced the defendant to sign the note as part consideration for a set of books, which the payee acting as said agent “falsely and fraudulently represented to be a special, limited and extra-illustrated edition,” worth a very large sum stated; that defendant was not an expert of the value of the books, and relied entirely on the representations made to him, that he gave two notes, one of which he paid, and that the other was the note in suit; that prior to maturity of the last note he discovered that the representations in reference to the books were false, and that immediately upon such discovery he notified the payee that the books were not as represented, requested him to return the money already paid and the unpaid note, and tendered a return of the books. He also averred that the plaintiff had full knowledge of the transaction, and took the note to aid the payee in the collection thereof. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Jan. 5, 1909.
    Appeal, No. 137, Jan. T., 1908, by defendant, from order of C. P. No. 1, Phila. Co., Dec. T., 1907, No. 2,813, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Henry Schultheis v. Alexander Sellers.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit by indorsee against maker of a promissory note.
    The averments of the affidavit of defense are set forth in the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Hampton, L. Carson, with him John Kent Kane, for appellant.
    — Where there is an averment in the affidavit of defense that the promissory note sued upon was procured from the maker by fraud and by misrepresentation, or that it was fraudulently circulated, the holder should be put to proof that he is a bona fide holder for value without notice of the fraud, and the case should go to the jury: Lerch Hardware Co. v. Third Nat. Bank, 109 Pa. 240; Reznor v. Supplee, 81 Pa. 180; Moeck v. Littell, 82 Pa. 354; Wolf v. Jacobs, 187 Pa. 260; Union Trust Co. v. Banger, 8 Pa. C. C. Rep. 99; Real Est. Investment Co. v. Russel, 148 Pa. 496; Loeb v. Mellinger, 12 Pa. Superior Ct. 592.

      Percival H. Granger, with him J. Howard Reber, for appellee.
    —The defendant and Wilson were strangers to each other at the commencement of the transaction, and no relation of confidence existed between them. Defendant could have easily protected himself by securing expert advice as to the value and quality of the books before giving the notes, if he had so desired. Instead of doing so, he waited more than two months and in the meantime paid one of the notes, amounting to $1,500. The doctrine of caveat emptor applies: Griffith v. Herr, 17 Pa. Superior Ct. 601; Fox v. Paynter, 1 W. N. C. 373; Byrne v. Stewart, 124 Pa. 450; Bailey v. Waterhouse, 3 W. N. C. 275.
    An active duty rested upon defendant to use due diligence in examining the books upon their arrival, and if found infericr to promptly and unequivocally reject them. He could have no justifiable reason for waiting more than two months before having the books examined by experts. Having accepted the books and paid one installment of the purchase money, he is liable for the balance thereof: Money Weight Scale Co. v. Woodward, 29 Pa. Superior Ct. 142; Learning v. Wise, 73 Pa. 173; Morgan v. McKee, 77 Pa. 228; Tete Bros. v. Eshler, 11 Pa. Superior Ct. 224; Taylor v. Saurman, 110 Pa. 3.
    It is submitted that the affidavit of defense is clearly insufficient as between the indorsee, plaintiff, and the maker, defendant: Phelan v. Moss, 67 Pa. 59; State Bank v. McCoy, 69 Pa. 204; Lancaster County Nat. Bank v. Garber, 178 Pa. 91; Forepaugh v. Baker, 21 W. N. C. 299; Second Nat. Bank v. Morgan, 165 Pa. 199; Battles v. Laudenslager, 84 Pa. 446; Newbold v. Pennock, 154 Pa. 591.

      March 1, 1909:
   Opinion by

Mr. Justice Mestrezat,

This was an action of assumpsit by an indorsee against the maker of a promissory note. The learned court below entered judgment for want of a sufficient affidavit of defense, and the defendant has taken this appeal. We think the court was in error and that the case should have been sent to a jury. The question is not whether the defendant is liable on the note in suit, but whether the averments in his affidavit of defense are sufficient to put the plaintiff, an indorsee, to proof whether he acquired the note before maturity, in good faith, and for value. If the affidavit meets this requirement, it defeats the right of the plaintiff to a summary judgment, and requires the court to send the case to a jury.

Almost a century ago, in Holme v. Karsper, 5 Binney, 469, it was held in an action on a promissory note that the holder was required to show the consideration he paid for it and how it came into his hands where the defendant proved that it was put into circulation fraudulently. This rule has been recognized and enforced in subsequent decisions. In Lerch Hardware Co. v. First National Bank of Columbia, 109 Pa. 240, it is said in the opinion of the court (p. 244): “To support an action by the indorsee of negotiable paper, against the maker, in the first instance it is only necessary for the plaintiff to put the paper in evidence. Then, if the defendant proves that the paper was put in circulation by fraud or undue means his defense will prevail, unless the plaintiff establishes that he acted fairly and paid value.” This is now the statutory declaration of the law, sec. 59 of the Act of May 16, 1901, P. L. 194, providing: “Every holder is deemed, prima facie, to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as holder in due course.”

Applying this doctrine to the case in hand it will be observed that the affidavit of defense meets every requirement. //The payee of the note was the agent of a publisher and importer of books doing business in the city of New York. He sold to the defendant a set of Smith & Elder’s edition of the works of Thackeray in payment of which the defendant gave two promissory notes, each for $1,500. When the first note became due it was paid. Before the maturity of the second and last note the defendant, as he avers, ascertained that the payee had misrepresented the books to him, and he declined to pay the second note. This action was then brought by the plaintiff, an indorsee of the note. In his statement the plaintiff avers that he is a bona fide holder for value before maturity of the note and that he took it without any notice of any defects or infirmities therein. He also avers that the defendant had notice that he acquired the note in the ordinary course of business for a good and valuable consideration. The affidavit of defense denies these averments. It alleges that Charles Y. Wilson, the payee of the note, acting as the agent of the publisher and importer, induced the defendant to sign the note as part consideration for the books which the payee acting as said agent “ falsely and fraudulently represented to be a special limited, extra-illustrated edition of Smith & Elder's Thackeray, fully worth the sum of $3,000, which he, the said Sellers, could subsequently sell for a very much larger sum if he was so inclined; that defendant is not an expert in the value of books, but bought the same for his private library, relying entirely on the representations of the said Charles Y. Wilson as agent of the said R. G. Newbegin as to the special alleged features of said books, as being specially illustrated, printed, and limited in number.” The affidavit further avers that prior to the maturity of the last note the defendant “discovered, by submitting the said books to the examination and judgment of experts, that the said books were not as represented; that instead of being unusual and special they were of a kind well known to booksellers, containing no special features, nor being limited in the number of copies, but were similar to many other copies of said books, differing only in cheap and tawdry details, and were worth in the market about the sum of $520;” that thereupon he immediately notified the agent of Newbegin that the books were not as represented, requested him to return the $1,500 already paid, also the note which was still unpaid, and tendered a return of the books.

The affidavit further avers that the plaintiff knew that Wilson was the agent of Newbegin, the seller of the books, that he had no authority to part with the note and had no ownership in the same, and further: “This defendant believes, and expects to be able to prove on the trial of this case, that the plaintiff was requested to act as collector of said note for the said C. Y. Wilson as agent for the said R. G. Newbegin, and that he the said plaintiff took said note merely to aid the said C. Y. Wilson as agent for the said R. G. Newbegin in the collection thereof, and thus avoid defendant’s defense.”

It will be observed that the affidavit does not aver simply a misrepresentation as to quality, soundness, value or other condition of the books, which would bring it within the rule of caveat emptor, and would not be sufficient to avoid the contract. Nor was the representation simply “dealer’s talk” oramere opinion of the books offered for sale. On the contrary, the averment is that the books sold were represented by the agent who took the note “to be a special, limited, extra-illustrated edition;” and that the representation induced the defendant to purchase the books. This representation, as averred in the affidavit, was entirely false and untrue. The matters thus represented to the defendant gave value to the books, and if they were false it is clear that the notes given in payment therefor were obtained by “ fraudulent and undue means,” and are a defense between the original parties to the note. The true character of the special features of the book, represented by the agent as making them valuable, could not be discovered by an examination or an inspection by the defendant. He was not a dealer in books or an expert in that line, as he avers, and could not determine whether the edition he purchased was special, limited, or extra-illustrated, as the agent represented it to be. A book of this character is not an article of general commerce about which the general public may, on inspection, detect a false representation. It is not a commodity whose market price is familiar to the public or can by reasonable effort be ascertained. An examination of the books by an expert was necessary to determine the truthfulness of the vendor’s representations, and defendant was, therefore, compelled to rely upon, the representations of the agent who, acting for his principal, is presumed to have special knowledge qualifying him to give correct information on the subject. Under such circumstances, the purchaser is entitled to protection against the fraud of the seller: Smith on the Law of Fraud, sec. 69; Kost v. Bender, 25 Mich. 515; Picard v. McCormick, 11 Mich. 68; Price v. Lewis, 17 Pa. 51; Smith, Kline & French Co. v. Smith, 166 Pa. 563. In reversing the court below in the last cited case and holding the affidavit to be sufficient, it was said (p. 569): “What the defendant set up in her affidavit is not a mere opinion or even a false representation as to value, or market price, or other matter of general knowledge which the vendor was bound to know or inquire about, but an explicit, circumstantial misstatement of a fact, conducing and intending to influence the vendor’s action, and whose falsehood she could not reasonably detect.”.

There is nothing in the contention that Newbegin was relieved from the false representations of his agent, Wilson, because there is no allegation that Wilson was an expert and knew that his representations as to the character and quality of the books were false, or that Newbegin authorized Wilson to make the representations. The affidavit avers that Wilson was the agent of Newbegin in selling the books and taking the notes, and Newbegin cannot affirm the action of his agent in making the sale and not asume responsibility for his representations: Keough v. Leslie, 92 Pa. 424. Nor is there any merit in the argument of the plaintiff’s counsel that the defendant is guilty of laches. The affidavit avers that the defendant notified Wilson and Newbegin immediately after he discovered the fact that the books he had purchased were not as represented. There was no delay by the defendant, so far as the record discloses, that would defeat the defense he sets up here if otherwise good.

The judgment of the court below is reversed with a procedendo.


source: Caselaw Access Project

author: Mr. Justice Mestbezat,

license: Public Domain

text:
    Lowry National Bank v. Hazard, Appellant.

      Promissory notes — Indorsee against maker — Affidavit of defense.

    In an action by an indorsee against the maker of a promissory note, an affidavit of defense setting up alleged misrepresentations made by the payee to the maker as the inducement for the note, is insufficient to prevent judgment if it appears from an analysis of the affidavit that the alleged misrepresentations were merely statements of intention or promises by the maker, and not misrepresentations as to any existing facts.
    Argued Jan. 5, 1909.
    Appeal, No. 162, Jan. T., 1908, by defendant, from order of C. P. No. 5, Phila. Co., March T., 1908, No. 631, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lowry National Bank of Altoona v. Horace G. Hazard and John H. Hillman, trading as Horace G. Hazard & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit by an indorsee against the maker of a promissory note.
    Rule for judgment for want of a sufficient affidavit of defense.
    The averments of the affidavit of defense are set forth in the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Érror assigned was the order of the court making absolute rule for judgment for want of a sufficient affidavit of defense.

      George F. Deiser, for appellants.
    — Fraud is an act of intentional deception, resulting in injury to another, and it has the effect of rendering voidable every transaction into which it enters as a constituent element: Lamberton v. Dunham, 165 Pa. 129; Edelman v. Latshaw, 180 Pa. 419; Clark v. Everhart, 63 Pa. 347; McAleer v. McMurray, 58 Pa. 126; Abbey v. Dewey, 25 Pa. 413.

      The presumption is that the indorsee of negotiable paper received it bona fide, in due course of business, and for a valuable consideration. But where it has been obtained from the maker by fraud the holder must show that he purchased it for value before maturity without notice: Gray’s Administrator v. Bank of Kentucky, 29 Pa. 365; Hutchinson v. Boggs, 28 Pa. 294; Knight v. Pugh, 4 W. & S. 445; Real Est. Investment Co. v. Russel, 148 Pa. 496.

      Albert L. Moise, of Sharp, Alleman & Moise, for appellee.—
    The representations which are complained of in the affidavit as fraudulent are as to matters merely collateral to and not forming part of the consideration, and, if false, do not amount to fraud. Hagerman’s statements, as to his future intentions, were not misrepresentations of existing facts and cannot be held to constitute fraud: Miller v. Fulmer, 25 Pa. Superior Ct. 106; Smith v. Smith, 21 Pa. 367; Fulton v. Hood, 34 Pa. 365; Grove v. Hodges, 55 Pa. 504.
    March 1, 1909:
   Opinion by

Mr. Justice Mestbezat,

This was an action of assumpsit by an indorsee against the maker of a promissory note. The learned court below made absolute a rule for judgment for want of a sufficient affidavit of defense and the defendant has taken this appeal. The judgment was rightly entered by the common pleas. The single question for determination below and here is whether the averments of the affidavit were sufficient to put the indorsee to proof that he was a holder for value, before maturity and without notice. The defendant seeks to impose this burden upon the plaintiff by the allegation of fraud and undue means in the procurement of the note in suit. The averments in the affidavit, however, are wholly insufficient for the purpose.

In Grove v. Hodges, 55 Pa. 504, Mr. Justice Strong, delivering the opinion, said (p. 519): “It would be going very far to hold that a man may be relieved from his deed by proof that when it was made promises were held out to him that were not performed, and that is the utmost that was exhibited in this case. Fraud, it is true, avoids all contracts, but fraud consists in false representations of things as facts which are not such, or in deceitful concealment of existing facts, neither of which is found in the evidence. ... A promise is not, in itself, a false and deceitful representation. Performance may have been intended when the promise was made.” The note in suit was given by the defendant to one C. W. Hagerman who, as averred in the statement, indorsed and delivered it to the plaintiff before maturity, for value, and in the regular course of business. The defense set up in the affidavit is that the defendant company executed and delivered the note in suit, together with four other notes, to Hagerman under an agreement with him by which the company was to receive one-fourth of the capital stock of a company to be incorporated under the name of the West Florida Hardwood Company; that the notes were executed upon the reliance of representations of Hagerman that he controlled the capital stock of the corporation, known as the Southern Hardwood Manufacturing Company, which owned valuable timber land in Florida; that he was skilled in the cutting of timber and manufacturing the same for market; that he had expended large sums of money in acquiring an interest in the same; that the rights of the southern company to cut and market timber would be transferred to the west Florida company, of which Hagerman was president, and that he would do all in his power to make it successful financially. It is further averred that the “representations, promises and undertakings” were made for the purpose of defrauding defendant company; that it was Hagerman’s intention to wreck the west Florida company in order that he might acquire the rights and properties of the company; and that Hagerman “ fraudulently accomplished said purpose by not conducting the operations of the said company or exercising or attempting to exercise any skill in the cutting and manufacturing of said timber by having no skill whatever in that particular, by abandoning the business of the company one month after its formation and doing everything in his power to wreck the said corporation,” by having said company execute a fraudulent mortgage on its property and a sale thereof on said mortgage in foreclosure proceedings.

It will be observed that the averments of the affidavit substantially amount to an allegation that Hagerman did not comply with the promises he made in conducting the business of the West Florida Hardwood Company and permitted its property to be sold and defendant thereby to lose its stock. There is no averment that Hagerman’s representations as to the existence and financial condition of the two companies or the property they held were false, or that he did not control the stock of the southern company, or that he did not expend large sums of money in acquiring an interest in the company. It is not alleged that Hagerman did not transfer to the defendant company the one-fourth of the capital stock of the west Florida company as he agreed to do; and hence it must be assumed that he complied strictly with his promise and transferred the stock. This was the consideration for the notes executed and delivered by the defendant to Hagerman, one of which is now in suit. The representations as to his ability in cutting timber was a matter of opinion about which there could reasonably be a difference of judgment, and was not sufficient to convict of a fraudulent intent: Blair v. Laflin, 127 Mass. 518. As has been said, there is no allegation of the untruth of Hagerman’s representations as to existing facts relative to the property of the west Florida company or its value at the time the notes were given for one-fourth of its stock. If there were any misrepresentations it was as to the manner in which he could or would conduct the lumber business and of his intentions in regard to it. These, as we have seen, do not constitute fraud in law so as to shift the burden of proof upon the holder of a negotiable instrument to show that he is a bona fide holder for value. So far as appears, Hagerman may have intended, at the time he made them, to carry out in good faith every representation he made regarding his intentions and the manner of conducting the business, but whether he did or not they were not representations of existing facts but promises to be fulfilled in the future in regard to the business of the corporation, the stock of which was transferred to the defendants as consideration for the notes given Hagerman. If the allegations of mismanagement made by the defendant company in its affidavit be true, it had an ample remedy to have it corrected and to have the company’s rights enforced. But the defendant is not in a position to ask the court to impose a burden upon the bona fide holder of a promissory note, given as a consideration for its stock in the corporation, that it may be protected against the mismanagement of the corporation. That is substantially what is asked in the affidavit of defense to this action, and hence the affidavit is wholly insufficient to prevent judgment on the note in favor of an indorsee, prima facie a holder for valúa

The judgment is affirmed.


author: Mr. Justice Fell,

text:
    McGeehan v. Hughes, Appellant.

      Appeals — Judgment non obstante veredicto — Time for appeal.

    1. Where a judgment for defendants non obstante veredicto is reversed and the record remitted, and thereafter a judgment against the defendants is entered, the defendants’ right of appeal as to time dates from the entry of the judgment against them.

      Negligence — Master and servant — Defective appliance.

      2. The test of negligence in methods, machinery and appliances is the ordinary usage of the business; but it is the test to disprove negligence, not to prove it; and mere proof that appliances used differ from those in ordinary use gives rise to no presumption of negligence. It is, however, competent for a plaintiff to show that the method used by the defendant was unusual and more dangerous in itself than the customary method.
    Argued Jan. 5, 1909.
    Appeal, No. 166, Jan. T., 1908, by defendants, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 1,366, on verdict for plaintiff in case of Bernard Mc-Geehan v. William J. Hughes and Morris Boney, Jr., trading as Morris Boney & Son. '
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    For the facts see the opinion of the Supreme Court, and former report of the case, 217 Pa. 121.

      Errors assigned were various rulings on evidence.

      W. W. Smithers, with him James Gay Gordon, for appellant.

      Frederick H. Warner, for appellee.
    March 1, 1909:
   Opinion bt

Mr. Justice Fell,

The plaintiff obtained a verdict in the common pleas in an action for personal injuries. Judgment was entered by that court for the defendants non obstante veredicto. On appeal to this court the judgment was reversed and, in accordance with the practice established by Hughes v. Miller, 192 Pa. 365, the record was remitted in order that such judgment might he entered, in accordance with the opinion filed, as law and justice required: see 217 Pa. 121. This appeal is by the defendants who are in the same position as appellants that they would have been if judgment had been entered on the verdict in the first instance, their right of appeal as to time dating from the entry of the judgment against them.

The first and second assignments of error relate to the admission of testimony to prove that the bucket which broke and caused the plaintiff’s injury was not of a kind in ordinary and general use. The test of negligence in methods, machinery and appliances is the ordinary usage of the business: Titus v. Railroad Co., 136 Pa. 618. But it is the test to disprove negligence, not to prove it; and mere proof that appliances used differ from those in ordinary use gives rise to no presumption of negligence. “The party charged with negligence disproves it by showing that the tools he employed were those in general use in the business, but the converse does not follow. The party charging negligence does not show it by showing that the machinery was not in common use. If it should be so held, the use of the newest and best machinery, if not yet generally adopted, could be adduced as evidence of negligence:” Cunningham v. Bridge Works, 197 Pa. 625. It is, however, competent for a plaintiff to show that the method used by the defendant was unusual and more dangerous in itself than the customary method: McGeehan v. Hughes, 217 Pa. 121. This is in effect what was done. The plaintiff’s counsel had before stated, when another witness was on the stand, that it was his purpose to show that the bucket used was not of the kind in general use and that it was defective in construction, and “to follow this up by showing that it was not an ordinary and general bail but was worse than the one in general use.” The question objected to was asked the next witness, and it was followed by proof that the bucket was weaker than the one in general use and that it was loaded much beyond the safety point.

The plaintiff’s right to go to the jury was determined on the former appeal,- and we find no error in the rulings at the trial nor in the charge, nor an abuse of discretion in refusing a new trial.

The judgment is affirmed.


author: Mr.- Justice Stewart,

text:
    Scott’s Estate.

      Trusts and trustees — Commissions—Assignment of commissions— Insolvent trustee.

    Where the widow and administratrix of an insolvent trustee files an account of the trust estate showing a large indebtedness by the trustee to the estate, which the trustee’s surety is compelled to pay, and it also appears that the trustee in his lifetime had assigned his commissions to his surety, the widow and administratrix has no right to demand from the substituted trustee payment of the commissions which had been assigned to the surety, and which had never been paid over by the surety to the substituted trustee.
    Argued Jan. 6, 1909.
    Appeal, No. 120, Jan. T., 1908, by Esther H. Cochran, Administratrix of the Estate of Thomas Cochran, deceased, from decree of C. P. No. 2, Phila. Co., Dec. Term, 1894, No. 502, dismissing exceptions to auditor’s report in Estate of Freeman Scott, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of James W. King, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court

      Errors assigned were in dismissing exceptions to auditor’s report.

      Charles Hunsicker, with him Jos. W. Hunsicker, for appellant.
    —The commissions are part of the estate of Freeman Scott, deceased, and can only be collected and received by the substituted trustee. No one else had any right to the estate: Stair v. York Nat. Bank, 55 Pa. 364; Meiser v. Eckhart, 19 Pa. 201; Little v. Walton, 23 Pa. 164; Scott’s Estate, 202 Pa. 389.
    The commissions until fixed, allowed and actually paid over to the party entitled, remain a part of the trust estate.
    No commissions can be allowed on the corpus of the estate (and decedent’s account consisted of over-two-thirds of corpus) until the termination of the trust or the particular trustee’s relation to it ends: Mintzer’s Est., 43 Legal Int. 292; Bosler’s Est., 161 Pa. 457.
    The commissions of a trustee are not assignable; either past or future commissions. Such an assignment is incompatible with his continuance as trustee, and is void as being against public policy: Taylor’s Est., 5 Phila. 218; Adams’s App., 47 Pa. 94.

      John G. Johnson, with him Joseph H. Taulane, for appellee.
    March 1, 1909:
   Opinion by

Mr.- Justice Stewart,

In a former proceeding institued by this appellant, in which there was an appeal to 202 Pa. 389, the effort was to require The Guarantee Trust and Safe Deposit Company, the surety of appellant’s husband, who had been until his death trustee under certain deeds of trust made by Freeman Scott, deceased, to file an account of the trust. It was there held that appellant was without title or interest in the estate of Scott, and as her only occasion for an account was to establish a claim against it for commissions, the duty was upon her, as administratrix of her deceased husband, to file his account as trustee, and if such account should show a balance in his favor for commissions or otherwise, she would be in a position to call upon the present trustee to pay. She thereupon filed an account which showed a balance due the trust of $12,907.24, exclusive of commissions claimed. At the audit accountant was surcharged with interest in the sum of $4,812.44, making a debit balance $17,719.68. From this the auditor deducted $3,234 for expenses of audit, attorneys’ fees, etc., and $7,593.38 commissions due accountant, together aggregating $10,827.38. The balance thus ascertained to be due the estate was $6,892.30, which the auditor awarded to the substituted trustee. The Guarantee Trust and Safe Deposit Company claimed to have the amount allowed by way of commissions specifically awarded to it, on the ground that Cochran in his lifetime, in writing, had assigned them to the company. Inasmuch as the account showed indebtedness due from Cochran, the trustee to the estate, in excess of the commissions, the auditor very properly refused the demand, and applied the commission as a credit upon the account. Cochran for years before his death had been an insolvent. That he was permitted to act as trustee, was due doubtless to the fact that The Guarantee Trust and Safe Deposit Company was his surety, and the further fact, that by arrangement with him and this company, after his insolvency occurred, all moneys due the trust estate were paid by the parties directly to the company, the trustee himself keeping no separate account. The estate being thus managed, at Cochran’s death the trust company had in its own hands whatever remained of the trust fund, and as surety was liable as well for whatever deficit there might be. Upon the final confirmation of the auditor’s report, the trust company paid over to the substituted trustee the balance awarded, retaining in its own hands however the amount allowed Cochran as commissions. The present contention arises on the first account of the substituted trustee. The account shows a large balance for distribution. Appellant first excepted to confirmation on the ground that accountant had not charged himself with the commissions allowed her on her account as administratrix of Cochran, and which she averred she had never received. She asked that the accountant be surcharged with the amount; and, failing in this, that she be awarded, out of the fund for distribution, an amount equal to the commissions allowed her. The auditor having refused her claim exceptions were filed to his report; and these having been in turn overruled by the court, this appeal results. A mere statement of the case, without argument, resolves the question sought to be raised. On what possible ground can it be pretended that the present trustee should be surcharged with these commissions? He is answerable only for such assets of the estate as came, or should have come, into his hands. These commissions were never received by him; nor could he have asserted any right to them; they ceased to be part of the trust estate when they were applied as a credit on the former trustee’s account, and any action on the part of the substituted trustee to recover them, no matter in whose possession, would have been utterly fruitless. Nor has appellant’s claim to be paid them out of the balance for distribution on this account, any more reason for this support. They constitute no part of the fund, have not contributed to it in any way, nor are they an indebtedness of the estate. It is idle to say that in making her present demand, appellant is observing the direction of this court in Scott’s Estate, 202 Pa. 389. What we there said was that if upon statement of her account, as administratrix of Cochran, a balance appeared in his favor for commissions or otherwise, she would be in position to call upon the present trustee to pay. Of course, such balance would constitute an indebtedness of the trust estate, for which recovery could be had. But, unfortunately for appellant, the account she settled, when adjudicated, instead of showing a balance due the accountant, showed a balance due the estate far in excess of the commissions; and this balance the surety was required to make good. The commissions which were allowed Cochran, are just where Cochran himself put them — in the hands of the trust company. In the adjudication upon the account stated by appellant, no notice could be taken of the fact that the funds of the estate were in the custody of the surety. Presumptively they were in the hands of the trustee, or subject to his control. If otherwise, and they are being improperly withheld from the appellant, her controversy must be, not with the trust estate of Freeman Scott, but with the party withholding the fund.

The appeal is dismissed at costs of the appellant.


author: Per Curiam,

text:
    Ferguson’s Estate.

      Wills — Surplus income — Annuities—Remainders—Charity.
    Where a testator gives an annuity for an amount of income named to each of his daughters for life, and upon the death of either the surplus income to two charities, and upon the death of both daughters to their children for their lives, with an ultimate gift of the principal to the two charities, the two daughters, until the decease of one of them, are entitled to all the surplus income, share and share alike, either by an implied gift, or under the intestate laws.
    Argued Jan. 6, 1909.
    Appeal, No. 161, Jan. T., 1908, by The Presbyterian Hospital in Philadelphia, from decree of O. C. Phila. Co., July T., 1907, No. 199, dismissing exceptions to adjudication in Estate of Charles Ferguson, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Testator’s will provided as follows:
    “ I give the residue of my estate to my Executors and Trustees In Trust to pay the said income to my two daughters Frances Ferguson and Esther F. Mears, in equal parts and shares in each one of those years in which the whole of the remainder of said income does not exceed Eighteen thousand Dollars, and to pay the sum of Eighteen thousand Dollars to my said two daughters that is to say Nine thousand Dollars to each one of them in each one of those other years in which the said remainder of the said income does exceed the sum of Eighteen thousand Dollars for and during all the respective terms of their natural lives .... and I direct my said Executors and Trustees to make up and pay to my said daughters the deficiency of income below Eighteen thousand Dollars of any one year or years out of the surplus income above Eighteen thousand Dollars if any of any subsequent year or years, so that my said two daughters shall if possible receive Eighteen thousand Dollars between them, that is Nine thousand Dollars to each one for each and every year of their lives.”

      Then follows a provision for the case of a daughter dying without issue surviving her, in which event the surviving daughter is to receive $9,000 per annum; out of the surplus of each year is to be made good any deficiencies of income below $9,000 in all previous years, and principal is to be reimbursed for any payments for municipal claims and certain extraordinary expenses, and then the testator provides: “and if after paying back to my residuary estate all the above items there should still be part of said surplus income left in any of the aforesaid years, then to pay the whole of the said surplus income as follows: one-third to the American (changed by codicil to New England) Antivivisection Society now located at No. 1530 Chestnut Street and the remaining two-thirds to ‘The Presbyterian Hospital in the City of Philadelphia.’”
    Then follows a provision for the case of a daughter dying leaving children living at the testator’s death. There were in fact two such children, a son and daughter of Mrs. Mears. These children are to receive each an annuity to be ascertained by dividing the whole income of one-half of the residuary estate into as many shares as there may be such children, not in any event to exceed $4,000 to each child, and to hold the surplus income as part of the residuary estate. In case of the death of the children before their mother, then after her death the trustees are directed to pay income, not to exceed $9,000 in any one year, to the other daughter if she should be then living; “and one-third of any surplus income shall be paid to the said the American (New England) Antivivisection Society, and two-thirds thereof to the said ‘The Presbyterian Hospital in the City of Philadelphia.’
    “And upon this further trust after the deaths of my said two daughters and their hereinbefore specified children and after the death of my sister-in-law Matilda W. Symington then to pay over convey and assign the whole of the remaining principal and undivided income of my said residuary estate to the Society and the Hospital hereinbefore mentioned in the proportions hereinbefore set forth concerning the surplus income.”
    By a codicil the testator provided as follows :•
    “I hereby give to my daughter Frances Ferguson full power to dispose of, by her will, that portion of the principal of my residuary estate of which she is to receive the income during her life, anything in the foregoing will and codicil thereto to the contrary thereof notwithstanding, but if my said daughter Frances should not dispose of the same by her will, then that portion of my estate shall go, at her death as directed in my said will and the codicils thereto.”
    At the adjudication both daughters were living, and the auditing judge awarded surplus income to them.
    On exceptions Penrose, J., filed the following opinion:
    Accumulation for charitable purposes is not regulated or forbidden by any statute, and except so far as affected by the rule against perpetuities, no restraint is placed upon it; in the present case, however, the question is not as to the capacity of exceptants to take, but whether any present gift has been made to them by the testator. This is a question of intention, purely, to be determined from the language of the will in its entirety, unaffected by the meritorious character of the claimants.
    The residuary estate, real and personal, is given in trust during the lives of the two daughters of the testator — his only children — and the charities claiming surplus income are not mentioned by him at all, in the will or codicils, until he makes provision for the disposition of the estate at the death of one of the daughters without issue, should that event occur, viz.: “and in case either of my said daughters shall die either before me or after, leaving no issue surviving her, then .... to pay to my surviving daughter the sum of $9,000 in each one of those years during her lifetime, in which the whole of the said remaining income shall amount to more than $9,000 .... and if after paying back to my residuary estate all of the above items there should still be part of such surplus income left in any of the aforesaid years, then to pay the whole of the said surplus income .... one-third to the .... Antivivisection Society .... and .... two-thirds to The Presbyterian Hospital.”
    This is followed by a provision for the children of a daughter, if any, and for the disposition of the surplus income in that event: “And if ... . there should be any such, I direct my executors .... to hold such surplus income as part of the principal of the whole residuary estate. And in case all of such children of either of my daughters should die before their mother, then after her death my executor .... shall pay the whole income from my then residuary estate, not, however, to exceed the sum of $9,000 in any one year, to my other daughter should she then be living .... and one-third of any surplus income to the .... Antivivisection Society .... and two-thirds thereof to The Presbyterian Hospital,” the remaining “principal and income” being given to them in the same proportions after the death of the daughters and their children, subject, however, to a testamentary power, given by a codicil to one of the daughters, “to dispose of .... that portion of the princi-. pal of the residuary estate of which she is to receive the income for life.”
    The will contains no direction for accumulation during the lives of the daughters, and both of them are still living.
    It thus appears that the gifts to the charities are only by way of remainder, taking effect at the death of one of the present cestui que trusts for life, and subject, moreover, to be divested, in part, by the exercise of the power of appointment. Future gifts — and especially those so subject — are not accelerated even by an express illegal direction to accumulate, no matter what may be the meritorious character of the intended beneficiary. See Mitcheson’s Estate, 11W. N. C. 547; Weather-all v. Thornburgh, L. R. 8 Ch. Div. 261; Talbot v. Jevers, L. R. 20 Eq. 255; Theobald on Wills, 447, etc.
    To doubt as to a claim of this character is to deny it altogether. As was said in Brendlinger v. Brendlinger, 2 Casey, 131, “He who does not claim by descent must show a written, title in himself. No intention in his favor not expressed in the written will can avail him. If the expressed intention is inadequate for his purpose, the law of the land and the title of the heirs must prevail, and all doubts about its adequacy must operate to his prejudice.” The auditing judge was clearly right in refusing any part of the surplus income to the charitable institutions now claiming.

      Whether the daughters take the' surplus income under the intestate laws or by reason of a gift to them of the beneficial ownership of the residuary estate for life is not a question of practical importance; but much can be said in support of their right in the latter capacity. A will is to be so construed, if possible, as to avoid an intestacy, and, in case of doubt, as nearly as may be in conformity with the provisions of the intestate laws. The will certainly affords indications of the testator’s supposition that the daughters, so long as they should live, were the beneficial owners of the residuary estate; he provides for partition if either of them should so desire, in which event he says the real and personal estate shall be divided “into two equal shares, in such manner that the share held in trust for each daughter shall be designated and identified in writing in such manner as to distinguish it from the other portion,” so that each daughter, by herself, may consent to the sale of “any portion of the share so held for her.”
    Then again he directs that all premiums upon policies of insurance upon the life of her husband shall be paid “out of the income of that one-half of” the estate of which his married daughter “received the income during her life:” and he provides, finally, that if the annual income to each daughter shall at any time be less than $9,000, the executors, if they “shall deem it necessary or advisable so to do,” may make up the deficiency from principal.
    Hence it would seem, upon the whole, that underestimating the income of his estate and supposing that it would not at any time largely exceed $18,000 yearly in addition to the annuities, etc., given to third persons, he wished to protect the daughters from their own improvidence by limiting the amount to be paid in each year to each of them to $9,000, and suffering anything beyond this to be held as a contingent fund, or “in the interest of judicious management,” to meet future deficiences, as in Eberly’s Appeal, 14 Outerb. 95 (decided fifteen years before the execution of the will); Schwartz's Appeal, 4 Crumr. 337; Hibbs’s Estate, 28 Crumr. 217, etc. Accumulation which arises in this manner is not contrary to the Act of April 18, 1853, P. L. 503, so long as it is not intended to be permanently withheld from the original beneficiary — such beneficiary being presently entitled to anything in excess. Surplus income of which a testator makes no disposition follows the fund or estate from which it issues (accessorium sequitur suum principale) and goes, therefore, to the person presently entitled to the beneficial ownership of such fund or estate, just as in the case of income directed to be illegally accumulated under the act of 1853: Washington’s Estate, 25 P. F. Smith, 102; Stille’s Appeal, 4 W. N. C. 42; Farnum’s Estate, 191 Pa. 75.
    As already stated, however, this is not now important, as in any aspect of the case the daughters are entitled.
    The exceptions on behalf of the charities are dismissed.

      Error assigned was in dismissing exceptions to adjudication.

      Henry P. Brown and John Marshall Gest, with them H. S. Prentiss Nichols and Charles H. Mathews, for appellant.
    — There is the strongest presumption against intestacy if it can be prevented by a fair construction of the will: Wahl’s Estate, 26 W. N. C. 249; Stille’s Appeal, 4 W. N. C. 42.
    If under a forced construction of the will it should be held that it directs an accumulation, or if an accumulation necessarily results from its provisions (Act of April 18, 1853, P. L. 503, sec. 9), the charities would not be adversely affected by the statute. It does not apply to charities: Curran’s App., 4 Penny. 331; Lennig’s Est., 154 Pa. 209.
    The authorities show that surplus or accumulated income belongs to the owners of the vested estate from which the income was derived: White’s Est., 8 Pa. Dist. Rep. 33; Martin’s Est., 185 Pa. 51; Edwards’ Est., 190 Pa. 177; Myer’s Est., 17 Phila. 425; Shallcross’s Est., 200 Pa. 122; Sharp’s Est., 155 Pa. 289; Wahl’s Est., 26 W. N. C. 249; Saunders v. Vautier, 4 Beavan, 115; Josselyn v. Josselyn, 9 Simons, 63; Coventry v. Coventry, 2 Drew & Sm. 470.
    There being a present vested interest in the charities, the surplus income cannot pass under the intestate laws. It would belong to the charities, even if the statute against accumulation applied: Howell’s Est., 5 W. N. C. 430; Edwards’ Est., 190 Pa. 177; Myer’s Est., 17 Phila. 425; Mitcheson’s Est., 11 W. N. C. 547; Mellon’s Est., 16 Phila. 323; Gowen’s App., 106 Pa. 288; Philadelphia v. Girard, 45 Pa. 9; Stille’s App., 4 W. N. C. 42; Rogers’ Est., 179 Pa. 602.
    The latest English decisions rule this case favorably to the claim of the charities: Wharton v. Masterman, L. R. (1895) App. Cases, 186; Harbin v. Masterman, L. R. 2 Ch. (1894) 184; Cook’s Est., 10 Pa. C. C. Rep. 465; Biddle’s App., 99 Pa. 525; Talbot v. Jevers, L. R. 20 Eq. 255.
    But in no event can the next of kin claim as against charities, who even in England are entitled under the cy pres doctrine: Martin v. Maugham, 14 Simons, 230; Re Swain’s Case, L. R. 1 Ch. (1905) 669.

      John G. Johnson with him Michael J. Ryan, for appellees.—
    There is no gift of surplus income to the appellant until after the decease of one of the two daughters.
    The bequest in remainder to the appellant upon the deceasó of certain named persons, is not of the residuary estate, but “of the remaining principal,” and, as to income, only of “undivided income.” “Undivided income” is not surplus income.
    A direction to accumulate would violate the act of 1853 because of the lack of certainty that the charities will be the ultimate beneficiaries: Dobbin’s Est., 221 Pa. 249; DeRenne’s Est., 12 W. N. C. 94; Chamberlayne v. Brockett, L. R. 8 Ch. App. Cases, 206; McKee’s App., 96 Pa. 277.
    There is an implied gift to the daughters, until the death of one of them, of the whole income.
    If thére is no implied gift to the daughters of the income until the decease of one of them, there is an intestacy and the daughters take: Weatherall v. Thornburgh, L. R. 8 Ch. Div. 261.
    March 1, 1909:
   Per Curiam,

The order appealed from is affirmed on Judge Penrose’s opinion.


author: Mr. Justíce Elkin,

text:
    Seitzinger, Appellant, v. Burnham.

      Negligence — Master and servant — Independent contractor — Unsafe appliance — Electric wiring.

    1. Ordinarily an employer who engages an independent contractor to furnish his plant with light is relieved from liability for injuries to an employee caused by defective wires or appliances, if due care has been exercised in the selection of a competent independent contractor.
    2. In an action by an employee against his employer to recover damages for personal injuries caused by the alleged negligent and defective installation of electric light wiring the plaintiff’s case must fail, if he merely shows the happening of the accident without any evidence whatever of the cause of the accident and does not establish either that the defendant or the independent contractor who had installed the wiring had been negligent, or that incompetent electricians had been employed to do the work, or to examine, approve and inspect the wires and plant.

      Negligence — Res ipsa loquitur.

    3. The maxim res ipsa loquitur is the expression of an exception to the general rule applicable to cases of negligence, which is that the negligence charged will not be presumed but must be affirmatively proven.
    Argued Jan. 6, 1909.
    Appeal, No. 182, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1904, No. 4,317, on verdict for defendants in case of George Seitzinger v. George Burnhafn et al., trading as Burnham,Williams & Company.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kinsey, J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendants.
    Verdict and judgment for defendant. Plaintiff appealed.
    ■ Error assigned was in giving binding instructions for defendants.

      George C. Muhly, for appellant.
    — The duty of the defendants was analogous to the duty of a municipality and of an electric light company to exercise a careful supervision of the wires and to keep them in a perfect condition, they having released the liability of the Brush Electric Light Company in their contract with them, and the same degree of care and diligence was required of them as was required of a telephone or electric light company in dealing with so dangerous an element: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540; Mooney v. Luzerne Borough, 186 Pa. 161; Devlin v. Beacon Light Co., 198 Pa. 583; Alexander v. Light Co., 209 Pa. 571; Combs v. Tel. & Tel. Co., 218 Pa. 440; Aument v. Penna. Tel. Co., 28 Pa. Superior Ct. 610; Rauch v. Smedley, 208 Pa. 175.

      John G. Johnson, with him James Wilson Bayard, for appellee.
    — The master’s duty to furnish a safe place and appliances is fulfilled as to those he himself provides when he furnishes those usual in the business: Titus v. R. R. Co., 136 Pa. 618; Reese v. Hershey, 163 Pa. 253; Kehler v. Schwenk, 144 Pa. 348; Dooner v. D. & H. Canal Co., 171 Pa. 581; Keenan v. Waters, 181 Pa. 247; Service v. Shoneman, 196 Pa. 63; Prudy v. Westinghouse Electric & Mfg. Co., 197 Pa. 257; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552; Diver v. Singer Mfg. Co., 205 Pa. 170; Powell v. American Sheet & Tin Plate Co., 216 Pa. 618.
    The master’s duty to furnish a safe place and appliance is fulfilled as to those he procures’ from others when he procures those usual in the business from a competent dealer or manufacturer and provides adequate inspection: Ardesco Oil Co. v. Gilson, 63 Pa. 146; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Service v. Shoneman, 196 Pa. 63; Anderson v. Hays Mfg. Co., 207 Pa. 106; McNeil & Bro. Co. v. Steel Co., 207 Pa. 493.
    The rule res ipsa loquitur does not apply to this case: Stearns v. Spinning Co., 184 Pa. 519; East End Oil Co. v. Torpedo Co., 190 Pa. 350; Spees v. Boggs, 198 Pa. 112; Clark v. Foundry Co., 219 Pa. 426; Lewis v. Penna. R. R. Co., 220 Pa. 317; Cavanaugh v. Coal Co., 222 Pa. 150; Fitzgerald v. Electric Co., 200 Pa. 540; Alexander v. Light Co., 209 Pa. 571; Devlin v. Beacon Light Co., 192 Pa. 188; Delahunt v. United Tel. & Tel. Co., 215 Pa. 241; Combs v. Del. & Atlantic Tel. & Tel. Co., 218 Pa. 440; Weir v. Haverford Electric Light Co., 221 Pa. 611.
    March 1, 1909:
   Opinion by

Mr. Justíce Elkin,

The negligence charged in the statement of claim is that the electric wiring in and about the roundhouse in which appellant worked had been so carelessly, negligently and defectively erected and constructed by the appellees, or by an independent contractor who undertook to furnish the building with electric light, as to make the place so unsafe and dangerous as to cause the injuries about which complaint is made and for which damages are sought to be recovered in this action. This is not a case for the application of the doctrine of res ipsa loquitur. This maxim is in itself an expression of an exception to the general rule applicable to cases of negligence which is that the negligence charged will not be presumed, but must be affirmatively proven. The evidence produced at the trial by the appellant did not establish facts so exceptional in character as to justify the application of a maxim carefully restricted by repeated decisions of this court and which is in derogation of the general principle underlying the law of negligence, to wit: that the negligence charged must be established by evidence.

The appellees are manufacturers of locomotives and are not engaged in the business of furnishing electric current or producing electric light. They did not install the electrical machinery, appliances or lamps with which the building in question was lighted. They entered into a contract with the Brush Electric Light Company to install the necessary lamps, wires and fixtures and to furnish the necessary current for lighting purposes. Ordinarily, an employer who engages an independent contractor to furnish his plant with light is relieved from liability for injuries to an employee caused by defective wires or appliances, if due care has been exercised in the selection of a competent independent contractor. In this case no question is raised as to the competency or responsibility of the independent contractor, but it is contended that inasmuch as the independent contractor was relieved from liability for injuries resulting from the use of lamps or wiring, under the express terms of the contract, the employers are in the same position as if the plant to furnish the light had been installed and operated by them. In our view of the case it is not important to determine this question. If this contention be sound and the liability for injuries caused by negligence did rest upon appellees, the evidence does not prove it. If, on the other hand, the independent contractor had not relieved itself from liability for damages under the contract and an action had been brought against that company for the injuries received, the evidence produced at the trial would not warrant the submission of the case to the jury. The happening of the accident is the only evidence from which negligence can be inferred, and under the facts of the case this is not sufficient. The evidence is that the' wiring and lamps were installed in a proper manner, that the insulation was sufficient for the use intended, that the best and most improved materials and appliances had been provided and that inspections had been frequent and ample. There was no actual or constructive notice to the appellees or to the electric company of a defective condition, nor was there any evidence to show that incompetent electricians had been employed to examine, approve and inspect the wires and plant. The evidence does not disclose how nor why the accident occurred. It does show that appellant while guiding the portable stack which was lifted by a crane in order to connect the standpipe and engine, pushed it against the electric wire and a current of electricity passed through the portable stack and he received a shock which caused the injuries about which complaint is made. Under these circumstances the court is unanimously of opinion that there was not sufficient evidence of negligence to submit to the jury.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Gallagher v. Kahn, Appellant.

      Negligence — Pedestrian on street — Cab.
    A pedestrian started to cross a street at a regular crossing. Two street railway tracks were on the street. He walked one-third of the way across and stopped to let a car on the far track pass. Then before starting he looked and saw another car approaching from the same direction and seeing nothing else to hinder, he continued, and when about halfway-between the farthest track and the curb line which he was approaching, he was knocked down and run over by a cab driven at a high rate of speed. The cab came from the same direction as the two cars. Plaintiff testified that he was looking straight ahead of him, as he walked across the street, but that his line of vision took in as much as twenty feet on each side of him. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Jan. 6, 1909.
    Appeal, No. 190, Jan. T., 1908, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1902; No. 2,836, on verdict for plaintiff in case of William C. Gallagher v. Samuel M. Kahn, trading as the Standard Cab Stables.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $9,500 on which judgment was entered for $6,000, all above that amount having been remitted.

      Error assigned was in submitting the case to the jury.

      Frank P. Prichard, with him James Wilson Bayard, for appellant,
    cited: Harris v. Commercial Ice Co., 153 Pa. 278; Boring v. Union Traction Co., 211 Pa. 594; Walsh v. R. R. Co., 222 Pa. 162; Piatt v. Rys. Co., 219 Pa. 583.

      George J. Edwards, Jr., with him Frederick G. Dussoulas, for appellee.
    — That the facts of the present case present a clear question for the jury is shown by the following authorities: Schmidt v. McGill, 120 Pa. 405; Schwartz v, Brahm, 130 Pa. 411; Bodge v. Philadelphia, 167 Pa. 492; Streitfeld v. Shoemaker, 185 Pa. 265; Christian v. Ice Co., 3 Pa. Superior Ct. 320; Stringer v. Frost, 116 Ind. 477 (19 N. E. Repr. 331); Hennessey v. Taylor, 189 Mass. 583 (76 N. E. Repr. 224); Neil v. Wellesley, 148 Mass. 487 (20 N. E. Repr. 111).
    March 1, 1909:
   Opinion by

Mr. Justice Potter,

The question in this case, as stated by counsel for appellant, is, whether the circumstances under which a cab and a pedestrian came into collision at a street crossing, showed such.contributory negligence on the part of the pedestrian as to prevent his recovery, and required the court to say so, as matter of law.

According to the testimony of the plaintiff he was, just previous to the accident, walking southwardly on the east side of Sixteenth street, and when about to cross Market street, he saw a car coming eastwardly on Market. He walked one-third^ of the way over Market street, stopped to let the car pass, then before starting looked and saw another car approaching, but at the time west of Sixteenth street, and seeing nothing else to hinder he continued on his way across Market street. When about halfway between the east-bound track and the south curb line, he was knocked down and run over by a cab coming from the west at a high rate of speed. There was ample evidence to show gross negligence upon the part of the cab driver. The plaintiff testified that he did not see the cab, until it was right upon him. Counsel for appellant contend that he must have been guilty of contributory negligence in not seeing, and avoiding it. That may possibly have been true as a matter of fact although the jury did not agree with the contention; but we do not see that the court would have been justified in so holding, as matter of law.

In order to safeguard himself while crossing the street, the plaintiff was under the need of looking in more than one direction. Cars and vehicles of all kinds were liable to pass either way. He was bound to avoid collision with other pedestrians if any were there, and to keep a reasonable lookout for obstructions of any kind in the street. Nor was he bound to foresee that a cab would come down upon him at the regular street crossing at an unusual rate of speed. It was only the ordinary conditions of the street traffic that he was bound to anticipate. Plaintiff said that he was looking straight ahead of him as he walked across the street, but that his line of vision took in as much as twenty feet on each side of him. It was for the jury to say whether if this statement of plaintiff was true, he was justified in proceeding to cross as he did. It may be that a pedestrian could ordinarily cross in safety the line of travel of a horse and cab, if it was not within twenty feet of him when he started to crossdhat line. At any rate it was not for the court to say that he was, under the circumstances, negligent in making the attempt. In süch cases as this, where the line.of separation between questions of law and questions of fact is very shadowy, and minds equally intelligent and impartial might draw different conclusions, the safer and wiser plan is to take the judgment of twelve impartial men of the average experience of the community. We are satisfied that the disputed questions of negligence and contributory negligence were very properly submitted to the determination of the jury, and.the judgment is affirmed.


author: Me. Justice Pottee,

text:
    Ashman’s Estate.

      Gift — Gift inter vivos — Intention—Delivery—Trust and trustees.
    1. To constitute a gift inter vivos two essential elements must combine : An intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion- over the subject, and invests the donee therewith.
    2. What is clearly intended as a voluntary assignment or a gift, but is imperfect as such, cannot be treated as a declaration of trust. If this were not so, an expression of present gift would in all cases amount to a declaration of trust, and any imperfect gift might be made .effectual simply by converting it into a trust. There is no principle of equity which will perfect an imperfect gift, and a court of equity will not impute a trust where a trust was not in contemplation.
    3. To create a trust there must be the expression of an intention, not to create a present gift, but to become a trustee; the acts or words relied upon must be unequivocal, plainly implying that the person holds the property as trustee.

      4. Where a father declares in writing that he gives certain bonds to his son, but also provides in the writing that the bonds are not to be used until after his own death, and the gift is not followed by any delivery to the son, and there is no declaration on the part of the father that he holds the bonds or their proceeds in trust for the benefit of his son, and the father subsequently makes his will revoking all previous wills, and makes no reference in his will to the bonds, the son will not be entitled after the father’s death to the bonds or the proceeds of any that may have been sold by the testator in his lifetime.
    Argued Jan. 7, 1909.
    Appeal, No. 194, Jan. T., 1908, by Carrie T. A. Bye, Distributee, from decree of O. C. Phila. Co., Jan. T., 1908, No. 101, dismissing exceptions to adjudication in Estate of Howard N. Ashman, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to adjudication of Dallett, J.
    The court dismissed the exceptions in an opinion by Anderson, J.

      Error assigned was in dismissing the exceptions.

      James W. Laws, for appellant.
    — There was no gift executed in favor of the son: Trough’s Est., 75 Pa. 115; Scott v. Lauman, 104 Pa. 593; Withers v. Weaver, 10 Pa. 391; Williams’s App., 106 Pa. 116; Flanagan v. Nash, 185 Pa. 41; Reese v. Phila. Trust, etc., Co., 218 Pa. 150.
    In all of the cases which have held that an executed gift was made, actual delivery took place and the donor reserved no interest in the corpus of the gift, but may have attached conditions to the gift, such as payment of interest: Malone’s Est., 8 W. N. C. 179; Hani v. Ins. Co., 197 Pa. 276; Madeira’s App., 17 W. N. C. 202; Commonwealth v. Compton, 137 Pa. 138; Pryor v. Morgan, 170 Pa. 568; Wise’s Est., 182 Pa. 168; Funston v. Twining, 202 Pa. 88.
    No valid trust was created in favor of the son: Crawford’s App., 61 Pa. 52; Bond v. Bunting, 78 Pa. 210; Dickerson’s App., 115 Pa. 198; Roberts’s App., 85 Pa. 84; Smith’s Est., 144 Pa. 428

      William H. Shoemaker, with him Frank E. Schermerhorn, for appellee.
    — To show a gift inter vivos “the intention of the donor must be established by clear and precise evidence, and that the delivery be secundam subjectam matericen:” Madeira’s App., 17 W. N. C. 202; Malone’s Est., 8 W. N. C. 179; Hani v. Ins. Co., 197 Pa. 276; Fassett’s App., 167 Pa. 448; Crawford’s App., 61 Pa. 52; Piper’s Est., 11 Phila. 141; Parker’s Est., 3 Pa. Dist. Pep. 370; Herr’s App., 5 W. & S. 494; Bond v. Bunting, 78 Pa. 210; Reese v. Phila. Trust, etc. Co., 218 Pa. 150; Beaumont v. Beaumont, 152 Fed. Repr. 55.
    The words “but hot to be used until after my decease unless I deem it necessary,” mean either that the donor reserved control as trustee for the son, or that he reserved the interest on the bonds during the donor’s life. In either case the gift of the principal of the bonds would be good: Reese v. Phila. Trust, etc., Co., 218 Pa. 150; Funston v. Twining, 202 Pa. 88; Wagoner’s Est., 174 Pa. 558; Crawford’s App., 61 Pa. 52; Bond v. Bunting, 78 Pa. 210; Beaumont v. Beaumont, 152 Fed. Repr. 55; Sourwine v. Claypool, 138 Pa. 126; Smith’s Est., 144 Pa. 428.
    The title to the bonds followed the ownership of the money, and it belonged to the beneficial owner of the title: Sourwine v. Claypool, 138 Pa. 126.
    March 1, 1909:
   Opinion by

Me. Justice Pottee,

This proceeding was the adjudication of the account of the executors under the will of Howard N. Ashman. The testator gave the residue of his estate to his son Charles T. Ashman and his daughter Carrie T. Bye in equal shares.' At the audit the son presented a claim for $7,000, with interest from the date of the testator’s death, as representing the proceeds of certain bonds which he alleged had been given to him by his father, the testator, in his lifetime. The foundation for the claim is a paper executed by the testator December 3,1889, of which the following is a copy:'

“Dec. 3, 1889. I this day give to my son Charles Bonds of the Union Pacific R. R. (4) four in number and $1000 in amount each making $4000 four thousand also of the Central Pacific ($3000) “ three thousand or three bonds of one thousand each making in all seven thousand dollars $7000, but not to be used until after my death unless I deem it necessary.
“H. N. Ashman.
“Witness Fred C. Mendel.”

And on the same sheet of paper in June, 1896, he made the following note:

“June 1896. Having sold the above named Bonds after they became due I have invested Four thousand dollars in a mortgage at Asbury Park there remains three thousand dollars due Charles T. Ashman to be paid after my death.
“H. N. Ashman.
“E. D. Foulkrod.
“ J. S. Weldon.”
This paper was subsequently mailed to the claimant while he was in California. It will be noted that in each of these entries, which are relied upon by the appellee as declarations of trust, there , are clear indications that whatever interest was intended to be given was to become effective only upon the death of the donor. In the first he says the bonds are “not to be used until after my death unless I deem it necessary;” and in the second he says, “there remains three thousand dollars due Charles T. Ashman, to be paid after my death.”

Another paper, which was admitted in evidence without objection, which had been executed by the testator on March 27, 1877, more than twelve years prior to the first of the two statements above referred to, recited that he had received from his wife, Mary E. Ashman, the sum of $24,000, partly in money, but $7,000 of it in bonds, to be held by him in trust for the benefit of the two children, it being the mother’s gift to them. Subsequently to the audit counsel agreed that the decedent had in one way or another, independent of the will, given to his son and daughter in equal shares real estate in which he had invested approximately $24,000. In this way the obligation imposed by this declaration of trust, as to funds received from his wife, was apparently satisfactorily discharged. It further appears, and was found as a fact by the auditing judge, that in 1886, previous to his second marriage, the testator made an antenuptial agreement, providing for his intended wife an annuity for life in lieu of any interest in his estate. On January 25, 1887, he executed an intended will, whereby he made practically an equal distribution of his estate between his two children, subject to the annuity to his wife, and made no reference whatever to the bonds or their proceeds. In 1890, he executed another intended will in which he provided: “Third. I give and bequeath to my son Charles T. seven first mortgage bonds of One thousand Dollars each four of them of the Union Pacific Rail Road Company and the other three of the Central Pacific Rail-Road Company,” and ga-ve, subject to the wife’s annuity, one-half of his estate to his son and the other half to his son as trustee for his sister, the testator’s daughter. There can be no reasonable doubt but that the bonds here referred to were the identical bonds which in the paper of December 3, 1889, made a^few months before, he manifested his intention of giving to his son Charles. Here he was manifesting the same purpose, but through a paper testamentary in character.

Then in 1897, he executed a codicil to a will made some years before, whereby after a devise of real estate, he gave to his son, as he put it, “also the equivalent of seven Thousand dollar bonds which has been paid to me — part of which is invested in bonds and mortgages at Asbury Park, N. J., and which seven Thousand dollars worth of bonds was the personal property of Charles T. Ashman.....The bonds which I leave to my son Charles was my own personal property and not the mother’s.” Three years later, on April- 20, 1900, he executed another codicil in which he expressed his wish that his daughter, Carrie T., should be co-executor with his son. And he further noted, “The Pacific Bonds left to my son Charles T. Ashman has been paid off and other property in Asbury Park bonds substituted.” Finally, in 1902, he executed the will which was duly admitted to probate as testator’s last will; in this he gave the residue of his estate, subject to the antenuptial agreement with his wife, to his son Charles T. Ashman and his daughter Carrie T. Bye, in equal shares. No mention whatever of any bonds was made.

Under all these facts, the son, Charles T. Ashman, claimed an executed gift of $7,000 of bonds made to him by his father in his lifetime, and followed by declarations which it was contended were sufficient to establish a trust. As the bonds in question were admittedly sold by the testator in his lifetime, the soil asked that their value should be awarded to him out of the estate. The auditing judge allowed the claim, and in so doing seems to have regarded the turning point in the case as being whether or not the bonds were part of the trust estate with which the testator charged himself as coming into his hands from his wife, for the benefit of the two children. It is practically conceded under the evidence of the declarations made by the testator, that the bonds which he at one time intended to give to his son, were his own property, and he could therefore do with them as he pleased. The question to be decided is, what did he do? The auditing judge failed to make clear his attitude on the question of whether the transaction was to be regarded as a completed gift, or as a declaration of trust. He seemed to lose sight of the requirement of the law, that complete and unconditional delivery is essential to the perfection of a gift. The claim to the bonds was based on an alleged gift inter vivos. As our Brother Stewart said, in the late case of Reese v. Phila. Trust, etc., Co., 218 Pa. 150, “To constitute a gift inter vivos two essential elements must combine: an intention to make the gift then and there, and such an actual or constructive delivery at the same time to the donee as divests the donor of all dominion over the subject, and invests the donee therewith.” Nothing of that kind was shown in the present case. The intention to make a present gift of bonds did appear in the paper of December 3, 1889, but that intention was modified by the further expressed intention that the son was to have no use of the bonds until after the death of the donor. Nor was the intention to make a present gift carried into effect by any act, such as is required by the law in order to invest the right of property in the donee. There was no delivery of the bonds to the soñ, nor was he in any way given control over them. Neither were they marked by the donor or set apart by any visible impress upon them, of any intended change of ownership. Whatever the intention.of the testator as to making a present gift may have been, on December 3, 1889, that intention under the test of the law, was never perfected; and the gift was incomplete because the bonds were never delivered, and never passed from the dominion and control of the donor to that of the donee. But counsel for appellee argue that if the gift was incomplete, nevertheless the donor impressed upon the bonds a trust for the benefit of his son. The difficulty in the way of that contention is, that, as we read the papers signed by Howard N. Ashman, in so far as they indicate any intention to make a gift, it is an intention to make a present gift, and they do not show any intention on his part to become a trustee. An intention to make a present gift usually excludes the idea of a declaration of trust. As this court said in Smith’s Estate, 144 Pa. 428 (434-435): “What is clearly intended as a voluntary assignment or a gift, but is imperfect as such, cannot be treated as a declaration of trust. If this were not so, an expression of present gift would in all cases amount to a declaration of trust, and any imperfect gift might be made effectual simply by converting it into a trust. There is no principle of equity which will perfect an imperfect gift, and a court of equity will not impute a trust where a trust was not in contemplation. Milroy v. Lord, 4 De Gex, F. & J. 264-274. Flanders v. Blandy, 45 Ohio St. 108.” And Justice Clark further points out that under the authorities “to create a trust there must be the expression of an intention, not to create a present gift, but to become a trustee,” and that the law is now “well settled in accordance with the rule in Richards v. Delbridge, L. R. 18 Eq. 11-13, that, if the transaction is intended to be effected by gift, the court will not give it effect by construing it as a trust.” It is further shown in the same opinion that to give validity to a declaration of trust (p. 438): “the acts or words relied upon' must be unequivocal, plainly implying that the person holds the property as trustee: Martin v. Funk, 75 N. Y. 134. Therefore in Young v. Young, 80 N. Y. 422, where the donor signed a paper certifying simply that certain bonds belonged to his sons, but did not declare in any words of plain import that he held them in trust for them, the declaration was held to be insufficient.” In the present case, we find no declaration that the father was holding the bonds or their proceeds for the benefit of his son. On the contrary, he held the bonds as his own property, collecting the interest on them, and as they fell due, took the proceeds, which he invested and reinvested, and mingled the funds with the rest of his estate, in entire apparent disregard of any liability to account, as for a trust fund.

The true conclusion, it seems to us, upon this record as a whole, is that any intention which the testator may have had to make a present gift of the bonds in question to his son, was a fleeting one, which shortly afterwards was merged in his determination to dispose of the same subject-matter in his will. Even the paper of December 3,1889, which begins with a clear manifestation of an intention to make a present gift, shades off in its last line into an equally clear intimation of a testamentary character, in that it provides that the bonds referred to are “not to be used until after my death.” And in the note added to the same paper in June, 1896, reciting that the testator had sold the bonds, and invested part of the proceeds elsewhere, he provides that the balance of the money was not to be paid until after his death. Meantime the decedent himself had, as we pointed out before, in the most unequivocal way shown that he regarded the gift as testamentary, by his references to what was undoubtedly the same subject-matter, in his intended wills of 1890, 1897 and 1900. Unfortunately for the contention of the claimant in this case, when the testator made his'last will in 1902, by which all former wills were revoked, he had apparently changed his mind, and all provisions as to any testamentary gift of the bonds in question or of their proceeds to the son, were dropped.

Under all the evidence in this case, we are unable to find that there was a completed gift of the bonds in question, by the father in his lifetime, to his son, Charles T. Ashman, nor do we find any valid or sufficient declaration that he held the bonds in trust for the son.

The award to Charles T. Ashman of $7,000, with interest thereon from the death of the testator, as representing the value of the bonds, is therefore set aside.

The assignments of error in so far as they relate to that award are sustained. To that extent, the decree of the orphans’ court is modified. The costs of this appeal are to be borne by the appellee.


author: Mr. Justice Elicin,

text:
    Christy v. Price, Appellant.

      Contract — Performance—Evidence—Burden of proof — Case for jury.

    In an action to recover for material and work furnished under a building contract, the burden is upon the plaintiffs to show substantial performance of the contract, and if they offer sufficient testimony on that subject, and it is believed by the jury, a verdict and judgment in their favor will be sustained.
    Argued Jan. 7, 1909.
    Appeal, No. 201, Jan. T., 1908, by defendants, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 3,666, on verdict.for plaintiffs in case of Henry Christy et ah, trading as The International Marble Company, v. William L. Price et al., trading as Price & McLanahan.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Assumpsit on a building contract to recover for marble and slate work furnished by plaintiffs. Before Brégy, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiffs for $1,844.74. Defendants appealed.

      Errors assigned were various instructions and rulings on evidence.

      Lems Lawrence Smith, for appellants.

      J. Morris Yeahle, for appellees.
    March 1, 1909:
   Opinion by

Mr. Justice Elicin,

This suit has been twice tried in the court below and in each instance a verdict in favor of the plaintiffs has been returned. It is a case for the jury, and, unless substantial error affecting the legal rights of the parties has been committed, the verdict should not be disturbed. The litigation has been going on for upwards of three years and should be terminated. However, if the assignments brought to our attention any error committed at the trial which denied to appellants a full and fair presentation of their case to the jury, it would be our duty to reverse the judgment, but a careful consideration of the record fails to disclose any reversible error. It is contended that the verdict is excessive, that the learned trial judge erred in certain parts of the charge to the jury, and in refusing to admit certain offers of evidence and in not permitting cross-examination of a witness along the lines indicated by the specification. The assignments are technical and do not go to the merits of the case. It is true that the burden was on the appellees to prove substantial performance of the contract, but there was sufficient testimony if believed by the jury, whose province it was to pass upon the credibility of witnesses, to meet this burden. The learned trial judge fully and fairly submitted the contentions of the parties to the jury in a charge free from just criticism.

Judgment affirmed.


text:
    Sweatman’s Estate.

      Executors and administrators — Commissions—Compensation—Death of executor.

    Where a testator has fixed the amount of the compensation of his three executors in the will at a certain amount for each executor and one of the executors dies after he has qualified, his estate is entitled to the amount named in the will.
    Argued Jan. 7, 1909.
    Appeal, No. 209, Jan. T., 1908, by Anna W. S. Keator, from decree of O. C. Phila. Co., Jan. T., 1908, No. 616, dismissing exceptions to adjudication in Estate of Virtue C. Sweatman, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to'adjudication of Anderson, J.

      Dallett, J., filed the following opinion:
    It is a fact, regrettable perhaps, that the recognition in England of an executorship or trusteeship as a post solely of honor does not prevail in this country, where such offices are too frequently looked upon, if not sought, as positions from which profit is to be derived.
    And this distinction, as urged by counsel for the exceptant, must necessarily deprive the English authorities cited on behalf of the legatee of much of the weight we would otherwise accord them in our determination of the question before us.
    We see no error, however, in the finding of the auditing judge. The testator directed that each one of his three executors should receive $6,000 “in lieu of all commissions.” All three qualified; four months subsequently Mr. Caven died, the settlement of the estate was only well under way and the executors of course had not completed their work. We think, nevertheless, that Mr. Caven’s estate is entitled to his $6,000 in full. The testator himself determined the sum that he should receive and took the risk of his executor’s illness or death; the executor by accepting the post took with it the chance that the labor entailed might be greater than he could reasonably anticipate.
    Did the amount named prove to be too small, we would be powerless to increase it: Hill’s Estate, 16 Pa. Dist. Rep. 984; Hays’s Estate, 183 Pa. 296.
    And when the executor once qualified as executor he became entitled to some compensation — whether little or much is immaterial; his death did not deprive his estate of his right to what had been earned, and it was in lieu of that compensation that he was given his legacy.
    It must be presumed as was said in Harper’s Appeal, 111 Pa. 243, that the testator had in mind the possibility that death might reduce the.number of his executors and that he considered such a contingency when he fixed the compensation to be paid to each of them.
    The exceptions are dismissed.

      Errors assigned were in dismissing exceptions to adjudication

      Lester B. Johnson, with him John F. Keator, for appellant,
    cited: Harper's App., 111 Pa. 243; Hay’s Est., 183 Pa. 296; Murray’s Est., 28 Pa. Superior Ct. 474; Jacoby’s Est., 7 Northampton, 163; Twaddell’s App., 81* Pa. 221; Walker’s Est., 9 S. & R. 223.

      Fell & Spalding, Wm. N. Trinkle and John C. Bell, for appellee,
    cited: Fetrow’s Est., 58 Pa. 424; Bickel’s Est., 9 Pa. Dist. Rep. 129; Harper’s App., 111 Pa. 243; Scofield v. St. John, 65 Howard’s Prac. (N. Y.) 292; Kirkland v. Narramore, 105 Mass. 31; Harrison v. Rowley, 4 Ves. 212; Lewis v. Mathews, L. R. 8 Eq. 277; In re Hawkin’s Trusts, 33 Beav. 570.
    March 1, 1909:
   Per Curiam,

The .order dismissing exceptions to the adjudication is affirmed for the reasons stated in the opinion of the learned judge of the orphans’ court.