author: Mr. Justice Potter,

text:
    Keisler’s Estate.

      Wills — Probate,—Undue influence — Evidence.
    In a proceeding to determine the validity of a will it was alleged that the will was procured by the undue influence of the sister of testatrix, who was the principal beneficiary. The evidence showed that the testatrix had complained of the neglect of her children, and that shortly before her death she went to live with her sister in another county. While residing with her sister testatrix expressed a desire to change a former will, and the sister telephoned to a lawyer to come to her house, and at testatrix’s request she wrote to a lawyer who had possession of the former will to send it to testatrix. The sister was not present when the new will was executed or at any discussion relating to ic. There was no evidence that she used any influence or persuasion upon the testatrix. She was uniformly kind to testatrix, and the latter frequently expressed her satisfaction at the kind treatment and good care which she received from her sister. The sister denied the charge of undue influence and testified that testatrix made the suggestion in the first place as to her change of residence. Held, that the evidence was. insufficient to sustain a finding that the will had been procured by undue influence.
    Argued April 10, 1905.
    Appeal, No. 191, Jan. T., 1904, by Sally A. Merwine, from decree of O. C. Luzerne Co., No. 414, of 1901, dismissing appeal from, register of wills in Estate of
    Hannah B. Keisler, deceased.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from register of wills. Before Freas, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing appeal from register of wills.

      D. L. Rhone, with him IT. J. Kotz, Cicero Gearhart and R. L. Burnett, for appellant,
    cited: Caughey v. Bridenbaugh, 208 Pa. 414.

      John M. Garman, with him William I. Hibbs and S. E. Shull, for appellees,
    cited: Robinson v. Robinson, 203 Pa. 401; Sharpless’s Estate, 134 Pa. 250; Wilson’s App., 99 Pa. 545.
    Oct. 9, 1905:
   Opinion by

Mr. Justice Potter,

A will of Hannah B. Keisler was probated September 25, 1901, by the register of wills of Luzerne county and letters testamentary granted to Milton Kresge, the executor named therein. On June 25, 1908, an appeal from the probate was taken by Sally A. Merwine, and after issue joined and hearing before the orphans’ court the appeal was dismissed. This appeal is taken by the appellant below from the decree of the orphans’ court dismissing the appeal from the register.

There are nineteen assignments of error, the last of which specifies as error, the dismissal of the appeal.

From the facts as recited in the opinion of the court below it appears that the will which was admitted to probate in Luzerne county, was dated May 29, 1901. That testatrix after-wards was taken to Stroudsburg, Monroe county, where she remained until her death upon September 25, 1901. And that in the meantime, another will was executed by testatrix on September 14, 1901. In this second will she recites the fact that she had removed to Stroudsburg with the intention to make her home there for the remainder of her life. She directs that she be buried in the cemetery at Stroudsburg, and that the body of her deceased husband be removed from West Pittston and interred at Stroudsburg. She gives her personal property to her three children and a granddaughter, and directs that her real estate should be sold and that her debts, funeral expenses, purchasing of cemetery lot, tombstone, also amount to be paid to the cemetery and the expenses of settling her estate, should be paid out of the proceeds, and only the balance was given to her sister, Mrs. Merwine. The finding of the court below that she gave her real estate to the appellant is therefore inaccurate to this extent.

Although the appeal is from the probate of the last will executed at West Pittston, the actual question before the court was whether the will dated September 14, 1901, and executed at Stroudsburg, was the last will and testament of the testatrix. The court found as follows: '

1. That the legal residence or domicile of Hannah B. Keisler at the time of her death was at West Pittston, Luzerne county, and the register of wills of Luzerne county had jurisdiction.

2. That the testatrix possessed testamentary capacity at the time of the execution of the Stroudsburg will.

3. That the Stroudsburg will was procured by undue influence, exercised over testatrix by Sally A. Merwine, the appellant, and was therefore invalid and of no effect.

On the first question, that of domicile, the court having found as a fact, that the testatrix had no fixed intention to change, and that her legal residence at the time of her death was at West Pittston, we will not disturb it. There was evidence to support this finding.

The question of testamentary capacity is not raised by the assignments of error, as the ruling of the court below upon that point was in favor of the appellant. The main question raised by this appeal is that of undue influence. There is no evidence of any influence exerted directly by the appellant upon testatrix to make a will in her favor. The only part she took in procuring the making of the second will was to telephone to a lawyer to come to the house and see Mrs. Keisler, after the latter had expressed a desire to change her former will. She also wrote to the lawyer who had drawn the first will and had it in his custody, requesting him to send it to Mrs. Keisler. This she did at the latter’s request. She was not present when the Stroudsburg attorney, Mr. Gearhart, saw the testatrix and discussed with her the making of a new will, nor when his stenographer, Miss Shiffer, took her instructions as to how the will was to be drawn, nor when the will was executed. There is no evidence to show that appellant was informed before the will was made, that any portion of the estate was to be left to her. There was evidence that Mrs. Merwine, who was a sister, was able to influence the testatrix in her conduct, but none of the witnesses testified that she did exercise any undue influence upon her. The appellees do not in their argument point out any such testimony. The evidence goes no further than such as this :

Miss flattie Dennison, who nursed Mrs. Keisler at West Pittston, testified that Mrs. Merwine visited her (Mrs. Keisler) at that place, and came after her there and brought her away. She was brought to Stroudsburg August 1 by Mrs. Merwine and witness remained with her until August 24. • Her mind was very much affected at that time and she was easily influenced by some people.

Later the same witness was recalled and testified: “ Mrs. Merwine had the same effect on testatrix that I had when I first went there. Testatrix was a woman whom by being kind to, you could take over to your side ; and the ones that were with her were the ones that would have her to do whatever they wanted her to do. Mrs. Merwine was always very kind and very lovely to Mrs. Keisler, and never crossed her in any way. She sent her very lovely letters and beautiful flowers and in every way was kind to her, and Mrs. Keisler, as her- condition grew weaker, became more fond of Mrs. Merwine.”

There was nothing in this testimony to indicate anything more than a proper display of sisterly affection. Appellant also called a number of witnesses who testified that both before and after she left West Pittston, Mrs. Keisler spoke to them of the kind treatment and good care she received from Mrs. Merwine, of how comfortable she was at her house, and how pleased she was to be with her mother and sister. She also complained that her children had neglected her.

Mrs. Emma Coleman, a neighbor of West Pittston, testified that shortly before she went to Stroudsburg, testatrix complained to her of lack of care and said: “ I wish if only my sister would come up, I know that if Sally would come up she would care for me. I will give it to' Sally if Sally takes good care of me, for their ain’t none of their father’s here, says she; he left me without anything but my three children, and if my children take care of me I will give them first chance and if Sally will, I shall give it to Sally.”

This was before the undue influence is alleged to have been exerted by Mrs. Merwine.

The appellant herself was examined and denied the charge of undue influence. She said that the suggestion that Mrs. Keisler should go back with her to Stroudsburg was made in the first place by Mrs. Keisler herself.

Without burdening this opinion with further reference to the testimony in detail, it is sufficient to say that it presents nothing which satisfies the legal definition of undue influence. The law on this subject has been so often considered and is so thoroughly settled that it is unnecessary to cite cases at any length. The opinion of the trial judge in Caughey v. Bridenbaugh, 208 Pa. 414, approved by this court, covers the entire ground. Under that case, and the decision in Masterson v. Berndt, 207 Pa. 284, the evidence in the present case fails to show the exercise of any undue influence by the appellant, for the purpose of procuring the making of a will in her favor. It is true there was a change of mind upon the part of the testatrix, but this was not in itself any evidence of undue influence. We said in Slater v. Slater, 209 Pa. 194, “ Had there been evidence of undue influence, the change of purpose might have had a strong corroborative bearing. But the change is not of itself evidence of undue influence. A change of mind is the right of every testator and by itself is not evidence of anything. It is only when a basis of evidence of undue influence is laid that the inquiry as to the change becomes relevant.”

In the latest reported case on the subject, Allison’s Est., 210 Pa. 22, a decree refusing to award an issue d. v. n. was affirmed on the opinion of the court below, in which latter opinion it was said : “ A jury should not be permitted to guess that there was testamentary incapacity at the time the will was executed, or that the will was the result of undue influence because they might think that a former will had made a better disposition of the testator’s property than the will contested, and that influence had been brought to bear on him to make the change. Testamentary incapacity or undue influence must be proved before a will can be legally set aside.”

And in the case of Robinson v. Robinson, 203 Pa. 401, which was cited and apparently relied on by the court below, the following language is quoted (p. 435) from the charge of the trial judge, and approved in the opinion of Justice Dean, as a correct statement of the law: “ A son may importune his mother to make a will in his favor. . . . He has a perfect right to do it, and if the only effect was to move her affections, or sense of duty, or judgment, he has a perfect right to do it. But if these importunities were such as the testator had not the power to resist, and yielded for the sake of peace and quiet, or escaping from serious distress of mind; if they were carried to a degree by which the free play of testator’s judgment, or discretion or wishes were overcome, it is undue influence. He can coax her, but he must not drive her, either by moral coercion or physical force.”

The nineteenth assignment of error is sustained, as is the eighteenth, seventeenth and sixteenth; so also is the first, second and fourth.

The decree of the court below is reversed at-the cost of the appellees, and it is ordered that the record be remitted to the court below, for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Mr. Justice Pottee,

license: Public Domain

text:
    Sigel’s Estate
    (No. 1).

      Will — Codicil—Construction—Effect of codicil.

    A gift once made by will is not to be cut down by a subsequent codicil unless the intention of the testator to that effect appears clearly, or by necessary implication.
    Where a gift is made of an estate, a revocation will not be implied unless no other construction can be placed upon the language.
    Testator, after giving certain legacies, gave the balance of his estate to the heirs of himself collectively. On the same day-he executed a codicil by which he gave certain sums to three persons who were his heirs, concluding with the words “and no more.” Held (1), that the words “and no more” applied to the amounts named in the codicil, and not to the balance of the estate given to the heirs by the will; (2) that the three heirs mentioned in the codicil were entitled to share in the balance of the estate.
    Argued May 2, 1905.
    Appeal, No. 68, Jan. T., 1905, by William Scbudt, from decree of O. C. Warren Co., Sept. T., 1904, No. 19, distributing estate of Charles Sigel, deceased.
    Before Mitchell, C. J., Dean, Blown, Mestlezat and Pottel, JJ.
    Affirmed.
    Exceptions to adjudication. Before Lindsey, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      John Gr. Johnson, with him Perry E. Clark and Jacob Stern, for appellant.
    The last clause in a will, of two inconsistent clauses, is the one that shall stand, and a bequest in a will revoked by a codicil thereto, is void: Newbold v. Boone, 52 Pa. 167; Stickle’s Appeal, 29 Pa. 234; Shreiner’s Appeal, 53 Pa. 106; Horwitz v. Norris, 60 Pa. 261; Hart v. Stoyer, 164 Pa. 523 ; 1 Jarman on Wills, 136.

      The phrase after the bequests in the codicil of Charles Sigel’s will would mean “ and no more out of my whole estate,” and have the effect those words did in McGovran’s Estate, 190 Pa. 375, and Everitt’s Estate, 195 Pa. 450.
    The case of Downing v. Marshall, 23 N. Y. 366-372, is similar to the case at bar.

      Frank Gunnison and T. A. Lamb, for appellees.
    This will and codicil present a conspicuous occasion for applying the principle that when possible the language should be so interpreted, that all their provisions shall stand, and none fall.
    If two clauses of a will are irreconcilable, the latter is to be adopted as the latest expression of the testator’s mind; but this is not to be done if it is possible to give effect to both consistently with the main design of the testator: Newbold v. Boone, 52 Pa. 167; Gantz v. Tyrrell, 7 Pa. Superior Ct. 249; Mutter’s Estate, 38 Pa. 314; Bender v. Dietrick, 7 W. & S. 284; Reichard’s Appeal, 116 Pa. 232; 1 Redfield on Wills, 362; 1 Jarman on Wills, 160, note 2; Whelen’s Estate, 175 Pa. 23; Dunlap’s Appeal, 116 Pa. 500; Bruckman’s Estate, 195 Pa. 363; Quincy v. Rogers, 63 Mass. 291; Hard v. Ashley, 117 N. Y. 606 (23 N. E. Repr. 177); Goodwin v. Coddington, 154 N. Y. 283 (48 N. E. Repr. 729); Phillip’s Estate, 205 Pa. 504.
    That one on whom the inheritance would bo cast by the law can only be disinherited by express language or necessary implication, and that even where no doubt exists as to the meaning, there must be a disposition of the estate to others in order to accomplish the result is not to be disputed: Johnson v. Johnson, 4 Beavan, 318; Pickering v. Stamford, 3 Vesey, 492; Jackson v. Schauber, 7 Cowen, 187; Bender v. Dietrick, 7 W. & S. 284; Rupp v. Eberly, 79 Pa. 141; Hancock’s Appeal, 112 Pa. 532; Abel v. Abel, 201 Pa. 543; Hitchcock v. Hitchcock, 35 Pa. 393.
    October 9,1905:
   Opinion by

Mr. Justice Pottee,

Charles Sigel died February 21,1904, unmarried and without issue, and leaving a large estate. On the day of his death he executed a will by which he revoked all previous wills, gave certain legacies and in his own language, “ the balance of my estate to the heirs of Charles Sigel,” that is, to his own heirs.

On the same day he executed a codicil, which reads as follows : “ I give to my sister Matilda Sigel, of Kirchheim, Germany, Mary Schmidt of East Orange, N. J., and Mary Schudt of West Seneca, N. Y., each one thousand ($1,000) dollars and to Gus Schudt my nephew, two thousand ($2,000) dollars, and no more.”

It is agreed that Mary Schmidt and Mary Schudt were one and the same person, the daughter of a'deceased sister of testator. Schudt was her maiden name, and Schmidt her married name. Gus Schudt was the son of testator’s sister.

All three legatees were heirs at law of the testator, and in the absence of the codicil would have been entitled to share in the distribution of his estate under the residuary clause of his will.

Upon distribution of the balance shown by the executor’s first account, the court below held that the legatees named in the codicil were entitled to receive the legacies there given them, and also to share in the residuary estate under the will. Appellants claim that this construction of the will is erroneous and that by the use of the words “and no more ” in the codicil, the testator expressed his intention that the amounts there given should be all that the legatees named should receive, and that the residue of his estate should be divided among his remaining heirs to the exclusion of the three named in the codicil.

In such, a case as this, where a will and codicil are to be construed, the rule is well settled,- that they must be regarded as parts of one and the same instrument, and that the codicil is not to be allowed to vary or modify the will, unless such was the plain and manifest intention of the testator.

In Spang v. Hill, 2 Woodward, 45, after a consideration of the authorities, the court said: “ The general result of the authorities on the subject is, that notwithstanding a codicil, the provisions of-a will are to stand, unless in order to effect the purposes of the codicil, it is absolutely necessary that the provisions of the will shall give way.”

Chief Justice Meb,cub said, in Lewis’s Appeal, 108 Pa. 188: “ It is not necessary to refer to the numerous English and American authorities which hold as a canon of construction that a clear gift cannot be cut down by any subsequent words unless they show an equally clear intention. In applying this rule it is sufficient that the subsequent words indicate the testator’s intention to cut it down with reasonable certainty, and it is not necessary to institute a comparison between the two classes as to lucidity: 1 Williams on Executors, 185. It cannot be cut down by any doubtful expressions in the codicil. The language of the latter must be such as to clearly establish the modification claimed before such effect can be given to it.”

And in Sheetz’s Appeal, 82 Pa. 213, this court said (p. 217) : “ The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal, and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s clearly announced main intention.”

The fundamental distinction between the nature of a codicil and a later will should be borne in mind. The later will works essentially a revocation, while the codicil is a confirmation except as to the express alterations which it may contain. And therefore while in the case of a later will a revocation may be presumed, this is not true of a codicil. It means rather an addition, than a revocation.

While no case has been found which furnishes an exact precedent for the one now before us, yet we think in principle it is to be governed by the authorities which hold that a gift once made by will is not to be cut down by a subsequent codicil, unless the intention of the testator to that effect appears clearly or by necessary implication. Where it is possible to construe the codicil so as to give effect to all the provisions of the will, it certainly should be done.

We do not think that it can be said in this case that the intention of the testator to revoke the gifts of proportionate shares in the residue, made to the heirs named in the codicil, is clear, from the use of the words “ and no more ; ” for these may be construed to apply equally well as limiting the amount of the additional gifts to the sums named in the codicil.

In Brisben’s Appeal, reported in 1 Lane. Bar, October 9, 1869, this court, speaking through Read, J., said : “It would appear to be perfectly reasonable that where a legacy is given by will to a particular individual, and by a codicil another legacy is given to the same person, that the second should be considered as additional to the first, and therefore where a paper is codicilliary, and two legacies are given to the same person, they are cumulative. The more recent decisions treat this as conclusive unless a contrary purpose is distinctly manifested by the instruments themselves.”

In the present case, this general principle would unquestionably make the gifts to the individuals named in the codicil, cumulative, were it not for the words “ and no more.” The doubt raised by them is as to whether they limit the words of the will and defeat the right to share in the residue. Or do they limit only additional gifts ? We are inclined to the latter construction, under the accepted principle that where a devise is made of an estate a revocation will not be implied unless no other construction can be placed upon the language. In this case we think the construction adopted by the court below, which saves the right to share in the residue, is reasonable and fair.

If the codicil be read into the will, it would then read, “ and the balance of my estate to the heirs of Charles Sigel, and in addition to the persons named in the codicil, the amounts therein named, and no more.” That is, in addition to their proportionate share of the residue as heirs, under the language of the will, they get respectively, the amounts named, “ and no more.”

We cannot accept the view that the words “and no more ” in the codicil clearly and necessarily apply to the provisions of the will, and cut down the gift there made. To apply them only in limitation of the amounts named in the codicil as additional gifts, seems to us quite as much in line with the probable intention of the testator as the other suggestion. In Bender v. Dietrick, 7 W. & S. 284, which was cited by the court below, and by counsel for both sides, the decision was placed upon the ground, that “ an heir at law can only be disinherited by express devise or necessary implication; and that implication has been defined to be such a strong probability that an intention to the contrary cannot be supposed.” Justice Rogers said (p. 287), in language peculiarly applicable here: “ It seems to me that the expression that they shall have $50.00 and no more, of his real and personal estate, does not raise such, a strong probability, as has been shown, as that a contrary intention may not be supposed. Indeed, the difficulty arising from the imperfection of the will, is, to ascertain what the testator did intend. His intention is at best but matter of conjecture, and certainly on such grounds, no person heretofore has been deprived of his inheritance.”

We think the conclusions reached by the court below in this case, are justified by reason, and the authorities. The assignments of error are overruled, and the decree of the orphans’ court is affirmed, and this appeal is dismissed at the cost of the appellant.


text:
    Sigel’s Estate
    (No. 2).
    Argued May 2, 1905.
    Appeal, No. 78, Jan. T., 1905, by Albert Sigel et al., from decree of O. C. Warren Co., Sept. T., 1904, No. 19, distributing estate of Charles Sigel, deceased.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.

      W. K. Rice, with him W. I). Hinckley and J. H Alexander, for appellant.

      T. A. Lamb and Frank Gunnison, for appellee.
    October 9, 1905 :
   Opinion by

Mr. Justice Potter,

We have just filed an opinion at No. 68, January Term, 1905, in the appeal by William Schudt, ante, p. 14, from the same decree, which disposes of the controlling questions raised by these appellants. Their further discussion is unnecessary. The assignments of error are overruled, and this appeal is dismissed at the cost of the appellants.


author: Mr. Justice Brown,

text:
    Horney, Appellant, v. Nixon.

      Theaters — Tickets—Contract—Trespass—Form of action.

    The proprietor of a theater is a private individual, engaged in a strictly private business, which, though for the entertainment of the public, is always limited to those whom he may agree to admit to it. There is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay for a ticket, for the theater proprietor has acquired no peculiar rights and privileges from the state, and is, therefore, under no implied obligation to serve the public. When he sells a ticket he creates contractual relations with the holder of it, and whatever duties on his part grow out of these relations he is bound to perform, or respond in damages for the breach of his contract, if it is of that only that complaint can be made.
    A theater ticket being a mere license to the purchaser which may be revoked at the pleasure of the theatrical manager, upon such revocation, if the person attempts to enter, or if, having previously entered, he refuses to leave upon request, he becomes a trespasser, and may be prevented from entering or may be removed by force, and can maintain no action of tort therefor. His only remedy is by an action on the contract to recover the money paid for the ticket and damages sustained by the breach of the contract implied by the sale and delivery of such ticket.
    In an action against the proprietors of a theater it appeared that the plaintiff held two reserved seats for a particular performance. Before the evening of the performance the municipal authorities ordered certain end seats of aisles to be removed. This was done, and in the confusion resulting from the sale of seats thereafter, the seats of the plaintiff were sold to other parties. The plaintiff’s two seats had been originally purchased in connection with six others, all to be used by one family. When the plaintiff and his family presented their coupons they were informed that they could not under the circumstances be given the seats called for. They were offered eight other seats farther back, or seats in two of the boxes. All of these were refused, and the party becoming noisy were invited to go into the corridor. Explanation was made to them of the cause of the trouble, and their money was tendered back to them. Plaintiff refused this, left the theater, and subsequently brought a suit in trespass for the price of the tickets, and for the inconvenience, annoyance, mortification and humiliation suffered by him. Held, that an action of trespass would not lie.
    Argued March 20, 1905.
    Appeal, No. 356, Jan. T., 1904, by plaintiff, from judgment of C. P. No. 4, Phila. Co., March Term, 1904, No. 1600, on verdict for defendant in case of Wilbur Horney v. Samuel F. Nixon and J. Fred Zimmerman, trading as Nixon & Zimmerman.
    Before Dean, Fell, Bbown, Mestbezat and Elkin, JJ.
    Affirmed.

      Trespass for failure to supply seats at a theater reserved by tickets bought in advance. Before Willson, J.
    The facts appear by the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Ulysses S. Koons, with him W. H. Gr. Grould and Henry E. Lallou, Jr., for appellant.
    The doctrine of revocable license and its inadequate measure of damages, in contract, has not appealed to the spirit of equity of our courts and has been flatly repudiated: Drew v. Peer, 93 Pa. 234.
    It has always been the law in this state that purchasers of reserved seats in theaters have the right to the exclusive possession of the designated seats during the performance of that particular evening: Commonwealth v. Powell, 10 Phila. 180; 1 Harvard Law Review, 24; McGoverney v. Staples, 7 Albany Law Journal, 219.
    The gravamen of the offense in both the car and the theater cases, being the trespass upon rights growing out of the contract, the following cases in trespass are decidedly in point on the question of damages in the case of an ejection whether by force or not: Laird v. Traction Co., 166 Pa. 4; Perry v. Ry. Co., 153 Pa. 236; R. R. Co. v. Spicker, 105 Pa. 142; R. R. Co. v. Bambrey, 2 Mona. 109; Duggan v. R. R. Co., 159 Pa. 248.

      Arthur Straus Arnold, with him J. Siegmund Levin, for appellees.
    The conducting of a theater is a purely private enterprise, and the law does not by implication impose upon the proprietor thereof a mandatory requirement to serve the public: Chitty on Pleading, vol. I, page 153; Rex v. Ivens, 7 C. & P. 213 ; Railway Co. v. Williams, 55 Ill. 185 ; Coger v. Packet Co., 37 Iowa, 145; Purcell v. Daly, 19 Abbott’s New Cases, 301; District of Columbia v. Saville, 1 McArthur, 581.
    The rules of law governing the relations between the public and persons engaged in public trades or employments, upon whom, by reason of the nature of their occupation, the law imposes a duty to the public, have no application to a case involving only the liability of the proprietor of a place of amusement to his patrons : People v. R. R. Co., 28 Hun, 543; Sandford v. R. R. Co., 24 Pa. 378 ; Pittsburg, etc., Ry. Co. v. Lynn. 123 Pa. 140; McCall v. Forsyth, 4 W. & S. 179; Frink v. Potter, 17 Ill. 406 ; Nevin v. Pullman Palace Car Co., 106 Ill. 222.
    A theater ticket is a revocable license, and the only-remedy of a purchaser denied the enjoyment .thereof, is an action on the contract for such damages as are the immediate consequences of the breach of contract: Wood v. Leadbitter, 13 Meeson & Welsby, 838; McCrea v. Marsh, 78 Mass. 211; Burton v. Scherpf, 83 Mass. 133; Mendenhall v. Klinck, 51 N. Y. 246; Pearce v. Spalding, 12 Mo. App. 141; Johnson v. Wilkinson, 139 Mass. 3 (29 N. E. Repr. 62) ; Purcell v. Daly, 19 Abbott’s N. C. 301; Oxford v. Leathe, 165 Mass. 254 (43 N. E. Repr. 92) ; Kerrison v. Smith L. R. (1897), 2 Q. B. D. 445 ; Collister v. Hayman, 71 App. Div. 316 (75 N. Y. Supp. 1102) ; Greenberg v. Turf Ass’n, 140 Cal. 357 (73 Pac. Repr. 1050) ; Waterman on Trespass, page 160; Washburn Real Prop., paragraph 845.
    October 9, 1905 :
   Opinion by

Mr. Justice Brown,

Lewis J. Somers, the father-in-law of the plaintiff, purchased from the Columbia Field Club eight tickets for a theatrical performance to he given on February 26, 1904, at a theater in the city of Philadelphia under the management of the appellees. They had issued a certain number of tickets to the club, to be sold by it, as the performance was to be for its benefit. After the tickets had been issued to it a fire commission, appointed by the mayor of the city, directed the aisles of the theater to be widened as a measure of greater safety to the public by removing the end seat on each row of the center section. The eight tickets purchased by Somers were in the fifth row of this section and were numbered from 1 to 8, No. 1 being for the one along the aisle. Two of these eight tickets — Nos. 3 and 4 — -were purchased by plaintiff from his father-in-law. The order of the fire commission led to some confusion in connection with the sales of seats, as the appellees did not know who had purchased tickets from the club before the order was complied with, but arrangements were made to issue other tickets to the holders of those for the seats along the aisles which had been removed. By some oversight all of the eight seats called for by the tickets purchased by Somers were resold, and when he and his family presented their coupons to the usher they were informed that they could not, under the circumstances, be given the seats called for. They were offered eight together elsewhere, as they insisted upon being seated as a family, but these were declined as being too far back. They were then offered seats in two of the boxes, but these were refused, on the ground that, as they had come as a family, they insisted upon sitting together, and in the seats called for by their coupons. In view of the alterations made in pursuance of the order of the fire commission it was impossible for the managers of the theater to give the family these eight seats, but, according to plaintiff’s own testimony, they courteously offered to seat them elsewhere. The party, however, refused every proposition and became noisy, to the annoyance of those witnessing the performance, which had commenced. They were told that they could not continue discussing the matter inside of the theater and were directed to go outside, where, according to the testimony of the treasurer of the appellees, they were tendered back the money they had paid for their tickets. After having so declined every offer to give them other seats to witness the performance, they left the theater, and the plaintiff shortly afterwards brought this action to recover the price of the tickets purchased by him, and “ for the inconvenience and annoyance and mortification and indignity and humiliation suffered ” by him. Under the foregoing facts the court below directed a verdict for the defendants, for the reason that there could be no recovery in trespass — the form of action adopted by the plaintiff — and the single question before us is the correctness of this ruling. It was so manifestly correct that the judgment might well be affirmed without saying more.

The ease as presented by the plaintiff has not a single tortious feature. He had purchased a ticket, calling, on its face, for a seat which he insisted on having, and it was the duty of the defendants to give it to him ; but their failure to perform that duty was simply a failure to perform their contract with the holder of the ticket, and for such failure, the remedy, as in any other simple breach of contract, is in assumpsit for damages for the breach. The confusion resulting from the change in the rows of seats, which followed the order of the fire commission, was the excuse given for not being able to furnish the family the seats called for by the tickets, and it ought to have been accepted by any reasonable person. The plaintiff, if not willing to take any of the other seats offered to him, ought to have been content to have his money refunded.

In support of the contention that the appellant has a right of action in trespass, decisions in cases of common carriers are cited, in which trespass was held to have been the proper form of action for refusal to carry passengers, or for unlawfully ejecting them without force or violence. But the difference between the duty of a common carrier and that of a theater proprietor has been wholly overlooked. That of the former is absolute to carry whoever may wish to be carried. It is a duty growing out of no contract, but rests at all times on the common carrier in return for the franchises and privileges conferred by the state. If, in violation of this duty, it refuses to receive a passenger, or unlawfully ejects him from one of its conveyances, trespass will lie upon the disregard of the implied obligation to serve the public, or the tort may be waived and assumpsit maintained for a breach of the contract of carriage, if one has been entered into. The rule is thus stated in Vol. 15, Ency. of Pleading & Practice, 1121 : “ It may be stated as an abstract proposition that where the duty of a common carrier to a passenger is not one which is implied by law by reason of the relation of the parties, but depends solely upon the fact that it has been expressly stipulated for, the remedy is in contract and not in tort; 'but where the duty is implied by law by reason of the relation of the parties, or where the passenger sustains an injury by reason of the breach of a duty which the railroad owes to the public in general, the remedy is in tort.” “ When the gist of the action is a breach of duty and not of contract, and the contract is not alleged as the cause of action, and when from the facts alleged, the law raises the duty by reason of the calling of the defendant, as in the case of innkeepers and common carriers and the breach of duty is solely counted upon, the rules applying to actions ex delicto determine the rights of the parties: ” Frink v. Potter, 17 Ill. 406. “ The liability of a carrier of passengers is a subject which has become of great practical importance since the introduction of railroads, and the subject of the measure of damages for breach of contract of carriage of a passenger has been much discussed. The relation between carrier and passenger is more than a mere contract relation; indeed, it may exist in the absence of contract. It is clear that any person rightfully on the cars of a railway company is entitled to protection by the carrier, though he is a free passenger. Any breach of this duty owed by the carrier to the passenger would seem to be a tort: recovery may be had either in an action of tort or in an action for breach of the contract. The contract made by a common carrier of passengers (and we shall see that the same is true of contracts made by all incorporated telegraph companies) is not simply a voluntary engagement such as an ordinary contract inter partes, but an agreement made in pursuance of an obligation towards all the world imposed either by his mere status as common carrier, or under his charter, or both. In other words, it is a contract which he is under a duty to make, and under a duty to perform, so that a breach is not a mere breach of contract, but also, as we have said, a tort: ” 2 Sedgwick on Damages, (8th ed.), sec. 859.

The proprietor of a theater is a private individual, engaged? in a strictly private business, which, though for the entertain-! ment of the public, is always limited to those whom he may agree to admit to it. There is no duty, as in the case of a common carrier, to admit every one who may apply and be willing to pay for a ticket, for the theater proprietor has acquired no peculiar rights and privileges from the state, and is, therefore, under no implied obligation to serve the public. When he sells a ticket he creates contractual relations with the holder of it, and whatever duties on his part grow out of these relations he is bound to perform, or respond in damages for the breach of his contract, if it is of that only that complaint can be made. Such is just the situation here. A courteous explanation was made why the contract with the plaintiff as the holder of the ticket issued by the defendants could not be specifically performed; other seats in different parts of the house were offered to him and the rest of the family, which could have been occupied by them together as one party, but were declined; seats in the proscenium boxes were refused, because the party would be separated, and even after all this ■ they were not evicted from the building, but simply told that their loud discussion of what they conceived to be the great wrong done them could not be carried on inside the theater, to the annoyance of those who were witnessing the performance; and, without rudeness or violence, they were directed to go into the foyer, where they continued to discuss the situation. They could have had seats at any time, but would take none except those called for by their tickets.

The allegation of the plaintiff, in his attempt to make out a case of trespass against the appellees, is that, by their conduct, he was unlawfully ejected from the theater, to his mortification, indignity and humiliation. The proof is just to the contrary, and shows nothing but a simple breach of a simple contract, resulting from a cause which • was explained to him and which ought to have been regarded as unavoidable. But he and some of the rest would listen to nothing but what their tickets called for. If the contract with him was broken, he is entitled to nothing more than the actual damages for the breach, and these, according to the testimony of the treasurer of the appellees, were tendered to him.

In affirming this judgment nothing more would be said but for the citation of Drew v. Peer, 93 Pa. 234, as authority for the right of the plaintiff to maintain trespass. There is no analogy between the two cases. Peer and his wife, two colored persons, purchased tickets for reserved seats in the theater of the defendant. On the evening of the performance they passed through the street door and were within a few feet of the ticket taker at the entrance to the orchestra circle when the man who was taking the tickets cried out “ Clear them niggers out,” and they were violently ejected from the building. In aiT action in case a recovery was had and sustained, and it was said by Sterrett, J.: “ Whether the tickets conferred merely a license or something more is immaterial. If they gave only a license to enter the theater and remain there during the performance, it is very clear that the agents of the defendant had no right to revoke it as they did, and summarily eject Peer and his wife from the building, in such manner as to injure her. We incline to the opinion, however, that as purchasers and holders of tickets for particular seats they had more than a mere license. Their right was more in the nature of a lease, entitling them to peaceable ingress and egress, and exclusive possession of the designated seats during the performance on that particular evening.” All that was decided was that the defendant had no right to revoke the license in the manner she did and violently and rudely eject the plaintiff and his wife from the theater. The suit was for damages resulting from their rude ejection, and what is said about the tickets being more than a mere license is to be regarded as simply obiter dictum. Even as such it is certainly not in accord with the authorities in this country and in England. “ Licenses which are given by the sale of tickets to theatres and other places of amusement are revocable: ” Cooley on Torts (2d ed.), p. 306. “A theatre ticket being a mere license to the purchaser which may be revoked at the pleasure of the theatrical manager, upon such revocation, if the person attempts to enter, or if, having previously entered, he refuses to leave upon request, he becomes a trespasser, and may be prevented from entering or may be removed by force, and can maintain no action of tort therefor. His only remedy is by an action on the contract to recover the money paid for the ticket and damages sustained by the broach of the contract implied by the sale and delivery of such ticket:” Vol. 21 Ency. of Pleading & Practice, 647. Among the cases sustaining this are Wood v. Leadbitter, 13 M. & W. 838; McCrea v. Marsh, 78 Mass. 211; Burton v. Seherpf, 83 Mass. 133; Pearce v. Spalding, 12 Mo. App. 141; Johnson v. Wilkinson, 139 Mass. 3 ; Greenberg v. Western Turf Assn., 140 Cal. 357. In the light of these and other authorities a theater ticket is to be regarded as a mere license, for the revocation of which before the holder has actually been given his seat, and has taken it, the only remedy is in assumpsit for the breach of the contract.

Judgment affirmed.


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    Coolbaugh, Appellant, v. Lehigh & Wilkes-Barre Coal Company.

      Mines and minimj — Coal lease — Sale of coal — Estate in coal — Sheriff’s sate —Royalties.

    A coal lease gave to the lessee the right to mine and remove 80,000 tons of coal annually, and was to determine and end when all the minable coal should be removed, unless the term should be sooner ended under other provisions contained in the lease. An annual rental of 120,000 was to be paid to the lessors. It was further provided that if the lessee “shall pay twenty thousand dollars rent in any one year, as is hereinbefore provided, and during that year less than eighty thousand tons of coal, of the pounds aforesaid, be mined and removed, the said party of the second part may, in any subsequent year within six years thereafter, during the continuance of this lease, mine and move sufficient coal to make up the deficiency.” On default in the payment of “an installment of rent, or any part thereof,” for a period of sixty days, it was covenanted that the lessors, in their option might declare the term of the “lease” at an end, and the “lease” was thereupon to absolutely cease and determine. The royalties were duly paid, and more than six years after the date of the lease a judgment was entered against one of the lessors, and all “his right, title and interest in and to all the coal in and under” the land embraced in the lease was sold at sheriff’s sale, and thereafter the share of the royalties previously paid to the defendant in the execution was paid to the purchaser at the sheriff’s sale. Held, (1) that under the terms of the lease the lessor retained an interest or estate in the coal to which a lien of a judgment would attach; (2) that after the sheriff’s sale the royalties were properly paid to the purchaser of the lessor’s interest; (3) that although añ ordinary coal lease may in a sense be a sale of coal in place, yet the rules applicable to sales are not to be applied indiscriminately to such instruments, but each is to be construed like any other contract by its own terms.
    In the above case until the coal was mined, the legal title remained in the lessors, and if not taken from them within six years during the continuance of the lease in the manner stated, the money paid them belonged to them as rental for their land which had been occupied by the lessee, although not used and appropriated by it as it had the right to do.
    Mestrezat, J., dissents.
    Argued April 13, 1905.
    Appeal, No. 89, Jan. T., 1905, by plaintiff, from order of C. P. Luzerne Co., May T., 1904, No. 314, discharging rule for judgment for want of a sufficient affidavit of defense in case of J. R. Coolbaugh, administrator of Milton Dana, deceased, v. Lehigh and Wilkes-Barre Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. Before Ferris, J.
    The facts are stated in the opinion of the Supreme Court.

      Flrror assigned was in discharging rule for judgment.

      F. O. Sturges, with him F. M. Nichols, for appellant.
    The appellant’s position is, that the instrument was a deed, and conveyed to the coal company the title in fee simple to the coal in place as land, and that the only remedy of a creditor of the said Dana was in proceedings by attachment execution: Sanderson v. Scranton, 105 Pa. 469; D., L. & W. R. R. Co. v. Sanderson, 109 Pa. 583; Dorr v. Reynolds, 26 Pa. Superior Ct. 139 ; Hosack v. Grill, 204 Pa. 97.
    The nature of the estate conveyed by an instrument of this character has been held to be an estate in fee simple: Lillibridge v. Coal Co., 143 Pa. 293; Webber v. Vogel, 189 Pa. 156.
    The only remedy of a creditor was by an attachment execution: Hare v. Coni., 92 Pa. 141; Fulweiler v. Hughes, 17 Pa. 440; Kieffer v. Ehler, 18 Pa. 388.
    It has been repeatedly decided that a chose in action cannot be sold on a writ of fieri facias : Rickert v. Madeira, 1 Rawle, 325; Rhoads v. Megonigal, 2 Pa. 39.

      S. J. Strauss and A. H. BicGlintock, with them Arthur Hill-man, for appellee.
    It is perfectly consistent to hold that coal leases are sales — we do not attempt to controvert this — but we say that they are conditional sales, not the absolute sales as maintained by the appellant, and when this position is conceded, and it is the only logical position following directly from the decisions of this court, all difficulties in the way of deciding this case, in the manner followed by the court below, disappear, and no other conclusion can be reached : Stewart v. Coder, 11 Pa. 90 ; Hiesier v. Green, 48 Pa. 96 ; Heist v. Baker, 49 Pa. 9 ; Bear v. Whisler, 7 Watts, 144; Strauss’s App., 49 Pa. 353 ; Bonebrake v. Summers, 193 Pa. 22 ; Eichelberger v. Gitt, 104 Pa. 64; Sehnyder v. Orr, 149 Pa. 320; Manning v. Frazier, 96 111. 279; Duffy’s Estate, 209 Pa. 390.

      October 9,1905:
   Opinion by

Mr. Justice Brown,

On August 30, 1870, Milton Dana and others, owners of coal lands in Luzerne county, entered into an agreement with the Wilkes-Barre Coal and Iron Company, granting, demising and leasing unto it, its successors and assigns, all the coal in said lands. The appellee succeeded to all the rights of the original lessee. The demise or lease, as the agreement is termed by the parties, was to date from January 1, 1870, and “to determine and end when all the mineable (and) anthracite coal shall have been mined and removed from the demised premises, unless the term be sooner ended under provisions ” thereinafter contained. The lessee covenanted to pay to the lessors the annual rental of $20,000, in quarterly installments of $5,000 each, in consideration of which it is permitted annually to mine and remove 80,000 tons of coal. There is a further provision that, “ if the said party of the second part shall pay said twenty thousand dollars rent in any one year, as is hereinbefore provided, and during that year less than eighty thousand tons of coal, of the pounds aforesaid, be mined and removed, the said party of the second part may, in any subsequent year within six years thereafter, during the continuance of this lease, mine and move sufficient coal to make up the deficiency.” On default in the payment of “ an installment of rent, or any part thereof,” for a period of sixty days, it was covenanted and agreed that the lessors, in their option might declare the term of the “ lease ” at an end, and the “lease” was thereupon to absolutely cease and determine.

Dana received his share of the payments made for the coal mined and removed up to April 1, 1880. On April 3, 1880, on an execution upon a judgment against him, the sheriff of the county sold to Joseph Birbeck and Alexander H. Van Horn all his “ right, title and interest in and to all the coal in and under ” the land embraced in the lease. Since the sale and delivery of the sheriff’s deed to these vendees of Dana’s interest the payments for the coal mined and removed have been made to them. The affidavit of defense, in addition to the allegation of Birbeck’s and Van Horn’s ownership of interest in the coal and their right as the sheriff’s vendees to receive payments for the same as mined, avers that the payments were made to them in the lifetime of Dana with his knowledge and consent; that since his death they were made without protest or objection from any of his heirs or personal representatives; that there has arisen a complete and final presumption of law that Birbeckand Van Horn acquired the title for a full consideration and have paid for the same to the said Dana or the persons who, on his behalf, were entitled to receive the rentals, and, therefore, his administrator, who brings this suit, is estopped from asserting a right to recover.

The questions raised by the statement and affidavit of defense are properly stated by the court below to be (1) “ Whether the sheriff’s sale to Birbeck and Van Horn passed to them the right of the execution defendant Dana to receive rentals ’ or royalties under the coal lease; ” (2) “ If not, then, is the administrator of his estate estopped from now asserting the right to recover from the defendant company royalties already paid to the sheriff’s vendees or their representatives ? ” (8) “ Would the facts averred, if proven, raise a presumption of a grant by Milton Dana to said vendees, of his right to receive such royalties ? ” Having been of opinion that the first of these three questions should be answered in the affirmative, and having so answered it, the court below deemed the discussion of the other two unnecessary.

Though the agreement of August 80, 1870, is called by the parties to it a demise or lease, we have, from Hope’s Appeal, 29 W. N. C. 365, down through a long line of cases, called it a sale of coal in place as land: Sanderson v. Scranton, 105 Pa. 469 ;D., L. & W. Railroad Co. v. Sanderson, 109 Pa. 583; Lillibridge v. Coal Co., 143 Pa. 293; Kingsley v. Coal and Iron Co., 144 Pa. 613 ; Lazarus’s Est., 145 Pa. 1; Denniston v. Haddock, 200 Pa. 426. In the last case cited the lease was for twenty years and provided for the payment of a minimum royalty. It was executed on September 27, 1870, by Margaret Denniston and others to Charles Hutchinson, whose interest became vested in Haddock, the appellant. It appeared that Hutchinson and his successors in title had paid royalty during the whole term of the lease, but, on account of strikes and other circumstances, were prevented from mining coal to the full extent of the minimum paid. On September 22, 1891, the lessors executed a new lease, to take effect from October 1, 1891. Haddock, the lessee, had been continuously in possession of the property during the terms of both the old and the new lease and the period between them. He claimed to defalk the overpayments. under the old lease, amounting to $15,000, from the royalties due under the new lease, and, in affirming the judgment of the court below, refusing to allow such set-off, what was said by the present Chief Justice may now be very properly quoted at length as supporting appellee’s contention: “ It has been said in a number of cases that a conveyance of the right to mine and remove all the coaPin a given tract of land, is a sale of the coal in place although the conveyance may be called a lease. The expression is unfortunate, for while it may have produced no erroneous result in the cases where it is used, it tends to substitute the general rules appertaining to sales, for the rules properly applicable to the particular contract that may be under consideration by the court. Thus, for example, in Hope’s Appeal, 29 W. N. C. 365, which is practically the starting place of the error, the agreement though called a lease was a purchase of the coal at a fixed price per acre, making a liquidated gross sum, which was payable absolutely in instalments ending within thirteen years, though the lessee had a nominal term of ninety-nine in which to remove the coal. It was justly said bjr the learned court below whose decision was affirmed here that it was ‘ manifest that the parties contemplated an actual sale of the coal, and not a lease in the ordinary use of that word.’ In Sander-son v. Scranton, 105 Pa. 469, the lease was expressly made ‘ perpetual until all the coal under the tract is mined,’ and it was held that this was such a complete severance that the taxes of the city of Scranton on the coal in place were chargeable to the lessee and not the lessor. So in Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613, it was again held that there was such a severance that occupation of the surface was not an adverse possession even against a lessee who had not opened up or entered on actual possession of the coal.

“ With the decisions in these cases no fault can be found, but the expression that a conveyance of coal in place, even by a lease for a limited term is a sale, is inaccurate as a general proposition of law, and unfortunate from its tendency to mislead, which is apparent in some of the subsequent cases. Whether 'it would be better to call such an instrument accurately what it certainly was at common law, a lease without impeachment of waste, or to endeavor to reconcile all the decisions by calling it a conditional sale, is not necessary at present to discuss. Tlie point to be noted is that the rules applicable to sales are not to be applied indiscriminately to such instruments but each is to be construed like any other contract by its own terms.

“ The defense in the present case is an ingenious misapplication of the principle of a sale. Appellant in compliance with his obligation under the lease paid a minimum royalty each year, and at the end of his term had paid more royalty than would have been required by the coal actually mined. He remained in possession of the land for a year under arrangement with one of the owners, and then took a new lease, under which the royalties now sued for accrued. He now claims to defalk the overpayments under the old lease, on the ground that he had paid for the coal and was entitled to it without further charge, because under his continued possession he could take it away without a trespass. The defect of this view is in the assumption that ho had paid for the coal. He had not. He had paid his rent on the stipulated terms, but he had paid nothing for the coal in place. His sole claim and title to that was to mine it during the term of the lease. As to it he was in the position of a lessee of a house bound to pay rent whether he occupied it or not. The fact that he paid without occupying it would not excuse his liability for further rent if he accepted a new lease.

“ Appellant admits that if he had gone out of possession at the termination of his lease, he would have had no further claim to the coal, but his reason assigned is not the correct one. The right to remove the coal would have ended, not because the lessee had forfeited or abandoned his property in it, but because he had never acquired any such property, his right to do so being expressly limited to the term covered by the lease.”

In D., L. & W. Railroad Co. v. Sanderson, supra., the question was as to who should pay the taxes on the coal as land — the lessor or lessee under a coal lease — and Trunkey, J., distinctly stated that no question arose “ respecting the grantors’ security for the purchase money, nor of their power to subject their right under the deed to the lien of a mortgage.” Here the question is as to the power of the grantor, Dana, to subject to the lien of a judgment the interest remaining in him under the agreement with the Wilkes-Barre Coal and Iron Company.

If the lessee had paid the rental of $20,000 for the first year, but had mined no coal, and in the second year, on its default in payment of a quarter’s rent, the lessors had, in accordance with the terms of the lease, declared it terminated, and resumed possession under the forfeiture clause, the lessee could not thereafter have mined and removed any coal because it had paid $20,000 for the first year. This is the clear meaning and intent of the contract. That sum would have been retained simply as rent paid and received as such for the right to occupy and use the land by removing the coal therefrom for one year: Lehigh & Wilkes-Barre Coal Co. v. Wright, 177 Pa. 887; Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118. It is only “ during the continuance of the lease,” that is, before the rights of the lessee have terminated by a forfeiture of them, that it can, during any six years following an annual payment of $20,000, appropriate to the payment of coal mined so much of that sum as has not been appropriated in any prior year to the payment of coal mined. After the expiration of six years no such appropriation can be made, and the minimum royalty is to be retained purely as rent for the year’s occupancy of the land.

The agreement of the parties is that the minimum rental of $20,000 may be applied by the lessee on account of the purchase money of the coal, provided it will actually purchase and acquire title in the manner pointed out in the agreement, viz.: by mining it within six years. Until it is so mined the legal title remains in the lessors, and if not taken from them within six years during the continuance of the lease in the manner stated, the money paid them belongs to them as rental for their land which had been occupied by the lessee, though not used and appropriated by it as it had the right to do. This was just the situation when the interest of Dana in the coal land was seized and sold under the execution against him. If the coal had all been mined, the worked-out space would have reverted to him, and what had not been worked out was under a continuing contingency of reverting to him by a forfeiture of the lease. He still had an interest in the coal as land, title to portions of which, and in the end to all of which, he had agreed should pass from him and become vested, not only equitably, but legally, in the lessee, as from time to time it acquired the legal title to the coal by mining and removing it. But until the legal title was so taken from him it remained in him, as in the case of any vendor of real estate. This is the title that was still in him when it was sold from him by the sheriff to Birbeck and Van Horn, and having acquired it, they are now entitled to all the rights under it. The one involved in this case is the right to the royalties, which, under the agreement of August 30, 1870, are to be regarded as pro tanto purchase money payments for the coal in place, if mined and removed within a stipulated time. The title thereto is acquired by using these royalties within the stipulated period of six years during the continuance of the lease as payments for coal actually taken out and away.

As the question raised on this appeal did not arise in any of the cases holding a lease like the present to be a sale of coal in place as land, they are not to be regarded as in conflict with the view here expressed. Though expressions in some of them are apparently irreconcilable with it, it is to be remembered, as is said in Denniston v. Haddock, “ the rules applicable to sales are not to be applied indiscriminately” to these leases; and when, as here, the question is as to the right of the grantor or lessor to subject the interest in the land which remains in him to the lien of a judgment or mortgage, no other doctrine than the one announced by the court below can accord with reason or the authorities relating to the interest retained by a vendor under an agreement for the sale of his land. The order of the court below discharging the rule for judgment is affirmed.

Mestrezat, J., dissents.


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    Howley, Appellant, v. Central Valley Railroad Company.

      Railroads — Motive power — Construction of road — Electricity—Steam— Acts of Feb. 19, 1849, P. L. 79, and April 4, 1868, P. L. 62.
    A railroad company incorporated under the Act of April 4, 1868, P. L. 62, and “entitled to exercise all the rights, powers and privileges, and be subject to all the restrictions and liabilities” of the Act of February 19, 1849, P. L. 79, is not restricted to steam as a motive power, but may use electricity.
    In the absence of a limitation upon the power of a railroad company to use any appliances, or of a prohibition as to the use of any particular one, it is the duty of the company to use what, in the light of its observation and experience, is best and most convenient for it in the operation of its road, having at all times due regard to the safety of the public which it was created to serve. In such a case its duty fixes the measure of its powers in performing it. What it manifestly ought to do in exercising its franchises it may do, unless forbidden by its supreme law — the will of its creator as expressed in the words giving it life.
    The fact that the courts have designated railroads organized under the act of April 4, 1868, as steam railroads, is immaterial, since this designation has been used only as a natural one to distinguish such railroads from street passenger railways, and in no case in which it is used is there any intimation as to the limitation upon the power of the railroad company in the adoption of its motive power.
    Argued April 13, 1905.
    Appeal, No. 91, Jan. T., 1905, by plaintiff, from decree of C. P. Luzerne Co., March T., 1903, No. 1, dismissing bill in equity in case of Martin Howley v.' The Central Valley Railroad Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain the construction of a railroad company to be operated by electricity. Before Halsey, J.
    From the record it appeared that the defendant company was incorporated under the Act of April 4, 1868, P. L. 62.
    The prayer of the bill was as follows:
    “That the court issue a perpetual injunction directed to the defendant, restraining said defendant and all persons claiming to act under its authority, direction or control from constructing or operating an electric railway over and upon the above described land appropriated from the plaintiff or between the cities of Wilkes-Barre and Pittston, and further restraining the defendant from laying over and upon the above described land a “ third rail ” or any other appliance or thing peculiarly and solely adapted to the equipment or operation of an electric railway.”
    Other facts appear by the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Charles L. MeKeehan with him M. N. Bonnelly and John MoGahren, for appellant.
    The railroad act of 1868, and its supplements, do not either expressly or by reasonable implication confer upon a corporation chartered thereunder the right to use electricity as a motive power, and under these circumstances, the right of such a corporation to use such motive power is a legislative and not a judicial question: Potts v. Quaker City Elevated R. R. Co., 161 Pa. 396 ; Emerson v. Com., 108 Pa. Ill; Scranton Electric Light & Heat Co’s. App., 122 Pa. 154; Watkin v. Pass. Ry. Co., 1 Pa. Dist. Rep. 463; Reeves v. Traction Co., 152 Pa. 153; Potter v. Traction Co., 176 Pa. 271; Potts v. R. R. Co., 161 Pa. 396 ; Rahn Twp. v. St. Ry. Co., 167 Pa. 84.
    The court will take judicial notice of the fact that electricity was not known as a motive power on railroads in 1868 : Scranton Electric Light & Heat Co’s. App., 122 Pa. 154.
    A citizen over whose land a railroad company constructs and operates its road under the right of eminent domain, is a proper party to test the right of said company to operate the road by electricity: Sterling’s App., Ill Pa. 35; Gaw v. R. R. Co., 196 Pa. 442; Germantown Pass. Ry. Co. v. Ry. Co., 151 Pa. 138; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459; Packard v. Thiel College, 209 Pa. 349.

      H. B. Gill, with him C. E. Bohan and James II. Torrey, for appellee.
    The plaintiff had no standing to maintain this bill : Lockhart v. Ry. Co., 139 Pa. 419; Penna. R. R. Co. v. Ry. Co., 167 Pa. 62; Hilt v. R. R. Co., 43 W. N. C. 429 ; Pittsburg, etc., Ry. Co. v. Peet, 152 Pa. 488; Junction R. R. Co. v. Phila., 88 Pa. 424; Speese v. R. R. Co., 23 Pa. C. C. Rep. 17; Windsor Glass Co. v. Carnegie Co., 204 Pa. 459.
    There is no evidence as to the extent of the use of electricity as a motive power in 1868 and no decree can be entered based on any alleged absence of the use thereof.
    The pending bill in equity between the defendant, the Central Valley Railroad Company, and the plaintiff, Martin Howley, and others, is a bar to the plaintiff’s bill in this case: Railroad Co. v. Erie, 27 Pa. 380.
    The defendant has the right to use electricity as a motive power: Lonergan v. Ry. Co., 3 American Electrical Cases, 273; Halsey v. Rapid Transit Street Ry. Co., 47 N. J. Eq. 380 (20 Atl. Repr. 859) ; Wilmington City Ry. Co. v. Ry. Co., 46 Atl. Repr. 12; Ogden City Ry. Co. v. Ogden City, 26 Pac. Repr. 288; Newport v. Newport Light Co., 89 Ky. 454 (12 S. W. Repr. 1040) ; Paterson Ry. Co. v. Grundy, 51 N. J. Eq. 213 (26 Atl. Repr. 788) ; Taggart v. Ry. Co., 16 R. I. 668 (19 Atl. Repr. 326) ; Buckner v. Hart, 52 Fed. Repr. 835 ; Hudson River Tel. Co. v. Watervliet Turnpike and Ry. Co., 135 N. Y. 393 (32 N. E. Repr. 148) ; Williams v. Ry. Co., 41 Fed. Repr. 556 ; Millvale Boro. v. Ry. Co., 131 Pa. 1; Reeves v. Traction Co., 152 Pa. 153; Com. v. West Chester, 9 Pa. C. C. Rep. 542; Gaw v. R. R. Co., 196 Pa. 442; Watkin v. Ry. Co., 1 Pa. Dist. Rep. 463 ; Potter v. Traction Co., 176 Pa. 271.
    October 9, 1905:
   Opinion by

Mr. Justice Brown,

The appellee is a railroad company incorporated under the Act of April 4, 1868, P. L. 62. In addition to locomotive engines it uses electricity as a motive power, which is carried to motors on the cars through a third rail. After locating the route of its road over the land of plaintiff it was unable to agree with him as to the amount of damages which he sustained, and, to secure the payment of the same, a bond was filed and approved by the court of common pleas. After its approval he undertook, by force, to prevent the construction of the railroad upon his property, but, on a bill filed by the company, was perpetually enjoined from so interfering with it. When he subsequently discovered that it intended to operate its road by electricity as one of its motive powers, he filed this bill, under the provisions of the Act of June 19, 1871, P. L. 1360, alleging that it did not possess the right or franchise to so operate its road, and, if permitted to do so, he would be injured in his property rights. The court below was of opinion that he could raise this question under the act of 1871, but was precluded from doing so by the injunction perpetually enjoining him from interfering with the construction of the road. By that decree he was enjoined from interfering with the construction of the road, for the reason that the company had a right to construct it; but if, in the operation of it, after its construction, the appellee undertook to exercise a franchise which it did not possess, to the injury of the plaintiff, he was within the protection of the act of 1871. More need not now be said on this point. Sooner or later we must pass upon the right of a railroad company incorporated under the general railroad act to use electricity as a motive power, and, for the purpose of doing so now, we regard the question as properly before us.

The Act of February 19, 1849, P. L. 79, was not passed for the incorporation of railroad companies, but for the regulation of those that might thereafter come into existence by special acts of assembly creating them. Up to that time no general law had been passed providing for their incorporation. Such an act, providing for their formation and regulation, was passed April 4, 1868, P. L. 62,' and under it the appellee was incorporated. This act provides that each company incorporated under it “shall be entitled to exercise all the rights, powers and privileges, and be subject to all the restrictions and liabilities of the act regulating railroad companies, approved the nineteenth day of February, one thousand eight hundred and forty-nine and the several supplements thereto, as fully and as effectually as if said powers were specially incorporated in said charter.” The charter of the appellee authorizes it to construct, maintain and operate a railroad for public use in the conveyance of persons and property. The road cannot be operated nor its franchises exercised without motive power ; but nothing is stated by the legislature about the kind to be used. The act is silent upon the subject, and, in the absence of a direction in the statute creating the appellee that any particular power is to be used, the kind to be adopted must be left to the judgment of those operating the road. In occupying the land of the appellant for railroad purposes the appellee took exclusive possession of it, and, in operating its road upon it, the appellant, who is excluded from it, has had no additional servitude imposed upon his fee because the cars happen to be moved by electricity instead of by steam. In this respect the case differs from the construction of a street railway upon a public street with municipal consent, for the use of the street is not exclusively in the street railway company, but concurrently used by the public. In Potter v. Scranton Traction Co., 176 Pa. 271, we said: “How far the franchise for a passenger railway, without specific limitations or prohibitions as to motive power, carries with it the right from time to time to operate it by new methods, developed in the progress of invention and experience, is an important question which was referred to but not decided in Reeves v. Phila. Traction Co., 152 Pa. 153, and in this case it is complicated by the fact that' the change was not made until after the adoption of the present constitution. It is clear that the traction company, chartered since the constitution, could not of its own authority make any change of motive power which would increase the servitude on the street, without the municipal consent.” The foregoing, however, has no application to a case where the land occupied is in the exclusive possession and use of a railroad company. The legislature in granting the power to the appellee to take appellant’s land for railroad purposes might have annexed to such a power a condition that but one kind of motive power should be used in moving cars, to the exclusion of all others, but there is no such limitation on the power to take the land or to operate the railroad constructed upon it.

Turning to the act of 1849, to the provisions of which the appellee is subject, there is no limitation found upon the kind of motive power that is to be used by railroad companies. By the second section of the act they are authorized “ to purchase, receive, have, hold, use and enjoy goods, chattels and estate, real and personal, of what kind and nature soever, as may be necessary or conveniént to the procuring, owning, making, maintaining, regulating and using their railroad, the locomotives, machinery, cars, and other appendages thereof, and the conveyance of passengers, the transportation of goods, merchandise and other commodities.” By section 18 it is provided “ that upon the completion of any railroad authorized as aforesaid, the same shall be esteemed a public highway for the conveyanee of passengers, and tlie transportation of freight, subject to such rules and regulations, in relation to the same, and to the size and construction of wheels, cars and carriages, the weight of loads, and all other matters and things connected with the use of said railroad, as the president and directors may prescribe and direct: Provided, That the said company shall have the exclusive control of the motive power.” Though the owners of cars had the right to have them conveyed on railroads, the motive power conveying them was to be under the exclusive control of the company. What motive power ? The motive power which the company had adopted. At that time, as is a matter of common knowledge, several kinds of motive power had been adopted and were in use. Some of the roads were operated by horses, others by inclined planes by means of cables operated by stationary engines, and others by the ordinary locomotive.

Rut it is contended that the powers conferred by the statutes on the corporations which they create must be construed in the light of conditions existing at the time they were passed, and, in the present case, as electricity was not known as a motive power in 1849, and even in 1868, the appellee has no right to use it and must be confined to the then known motive powers for railroads. If this doctrine were to prevail, the rails of railroads would still be confined to the strap rail, nailed upon wooden stringers, with snake-heads not infrequently forced up through the floors of the cars, instead of the present heavy steel rails insuring the absolute safety of the running of cars ; pigmy locomotives, burning only wood, would still haul a few light cars at a slow pace on uncertain schedules, instead of the present massive engines which, with safety and at speed not dreamed of fifty years ago, carry long trains of cars filled with passengers and freight; and the old hand brake would not be supplanted by the air brake. These and many other appliances and devices utterly unthought of in the days of the legislation under which our present railroads came into being, could not be used.

In the absence of a limitation upon the power of a railroad company to use any appliances, or of a prohibition as to the use of any particular one, it is the duty of the company to use what, in the light of its observation and experience, is best and most convenient for it in the operation of its road, having at all times due regard to the safety of the public which it was created to serve. In such a case its duty fixes the measure of its powers in performing it. What it manifestly ought to do in exercising its franchises it may do, unless forbidden by its supreme law — the will of its creator as expressed in the words giving it life.

In Millvale Borough v. Evergreen Railway Co., 131 Pa. 1, the road of the railway company was originally built and operated as a narrow gauge steam railroad, and it was contended that it could not widen the same to a broad gauge. Of this contention it was said: “It might as well be argued against the proposed change of gauge that because a particular kind of rail was in vogue, and was actually adopted and used by a railroad company at and after the time of the construction of its road, it could never adopt another, but was concluded by its first choice, upon the theory of an exhaustion of its power. It will be seen at once that such an argument is entirely fallacious and untenable. Instead of such being the law, we have always held that railroad companies not only have the right, but are by law bound, to make use of the latest and best inventions and appliances tending to promote the comfort and safety of the public. This is notably the case in the matter of spark-arresters, and is equally applicable to couplings and other contrivances. The writer remembers when the strap rails, laid upon longitudinal stringers and fastened down with spikes, were in common use on steam railroads, and he also remembers that snake-heads at the end of the rails resulted from this method, occasioning frequent accidents and loss of life. When the T rails came into use, it became the undoubted legal duty of the old companies to abandon the flat rail, and use the new one, and any company failing to perform this duty would very quickly have received forcible and emphatic admonition ■to that effect both from juries and courts.”

In Halsey v. Rapid Transit Street Railway Co., 47 N. J. Eq. 380, the question of the right of the railway company to use electricity as a motive power was raised, and Van Fleet, V. C., in delivering the opinion of the court, said : “ The right of the defendant to use electricity as its motive power is clear. The defendant was organized under a general statute, authorizing seven or more persons to associate themselves together, by articles in writing, for the purpose of forming a corporation to construct, maintain and operate a street railway for the transportation of passengers : Rev. Sup. p. 363. The motive power to be used by corporations formed under this statute is'in no way limited or defined ; the statute does not say that they shall use animal, mechanical or chemical power; it says nothing at all on the subject of power; hence, under the general grant of power to maintain and operate a street railway, it would seem to be clear, that a corporation formed under this statute, takes, by necessary and unavoidable implication, a right to use any force, in the propulsion of its cars, that may be fit and appropriate to that end, and which does not prevent that part of the public which desires to use the street, according to other customary methods, from having the free and safe use thereof. While the rule is elementary that public grants are to be strictly construed, still it is also well established, that where a corporation is authorized, by a general grant, to exercise a franchise or to carry on a business, and the grant contains no words either defining or limiting the powers which the corporation may exercise, it will take by implication, all such powers as are reasonably necessary to enable it to accomplish the purposes of its creation. 1 am, therefore, of opinion that if there was no other legislation on this subject than that just mentioned, and that it was made to appear that electricity could be used for the propulsion of street cars without preventing the free and safe use of the street by other means of transportation, the defendant would, by force of the statute under which it was organized, have a right to use electricity as its motive power.”

Another case that may be cited is Wilmington City Railway Co. v. The Wilmington Railway Co., Court of Chancery of Delaware, 46 Atl. Repr. 12, where it is held: “ It would seem that when the broad term, ‘ city railway,’ is used, the term must be taken to mean only what is essential to the definition of the term, and obviously no particular motive power is essential. Whenever a statute specifies a motive power to be used, the expression of that power may be construed to exclude any other. The general rules of construction seem to me to require this. But, when an exclusive right is given in general terms to a city railway, the effort to confine it to the particular motive powers in use at the time would seem to be as artificial and unauthorized as to confine it to the kind of rails then in use, excluding the idea of modern rails of steel and of great weight, or to limit the size and shape and quality of cars to those known at the time. All these things, including the motive power, are subordinate — -mere means to make the franchise effective; and yet the expression of any of them might be so made as to so limit the grant. When no kind of motive power is mentioned, it should be taken to indicate that the legislature means what it says, ‘ a city railway,’ however propelled, whether by powers then familiar or those they know not of; in fact, any kind of power which the ingenuity of man may contrive that does not constitute an additional burden upon the highway, or an injury and annoyance to the public.”

We have, it is true, as is contended by the appellant, designated railroads organized under the act of 1868 as steam railroads : Potts v. Quaker City Elevated R. R. Co., 161 Pa. 396. But this designation has been adopted only as a natural one to distinguish such railroads from street passenger railways, and in no case in which it has been used is there any intimation as to the limitation upon the power of a railroád company in the adoption of its motive power. With this .question now before us, we are clear that the appellee is not prohibited from using electricity as a motive power, and if, in its judgment the same ought to. be used for the most efficient exercise of its right to operate its railroad, it may be used.

The decree of the court below is, therefore, affirmed, and this appeal dismissed at the cost of the appellant.


author: Per Curiam,

text:
    Hads v. Tiernan, Appellant.

      Deed — Construction—Premises—Habendum.
    A deed described the premises conveyed as a lot thirty-eight feet by thirty-three feet “with a two story frame dwelling house thereon, being one-half of double house thereon.” The habendum contained this clause: “To have and to hold said described lot of ground and one-half the double house now thereon.” The whole of the double house was within the lines of the lot thirty-eight feet, and the grantee understood that she was to have the whole of the lot. Held, that the grantor could not claim any of the land but only half of the double house, as having been reserved by the deed.
    Argued April 18, 1905.
    Appeal, No. 251, Jan. T., 1904, by defendant, from judgment of Superior Court, Oct. T., 1904, No. 13, affirming judgment of C. P. Blair Co., Jan. T., 1902, No. 109, on verdict for plaintiff in case of Bridget ITads v. Thomas J. Tiernan.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Appeal from the Superior Court.
    The facts are stated in the opinion of the Supreme Court and in 25 Pa. Superior Ct. 14.

      Error assigned was the judgment of the Superior Court.

      Thomas H. Greevy, with him I). Glare Good, for appellant.

      S. B. Hare, with him Thomas G. Hare, for appellee.
    October 9, 1905 :
   Per Curiam,

The deed from the appellant to the appellee, under which she claims title and right of possession, is for a lot of ground situated in the city of Altoona on the northeast side of Tenth street, containing in front thirty-eight feet and running back thirty-three feet. A verdict was directed in her favor by the common pleas and the judgment on it was affirmed by the Superior Court: Hads v. Tiernan, 25 Pa. Superior Ct. 14. The defense of the appellant is that a recovery ought to have been allowed for but one-half of the lot, because he had excepted the other half under the following clause in the deed: “ To have and to hold said described lot or piece of ground and one-half the double house now thereon.” The conveyance is of a lot of ground thirty-eight by thirty-three feet, with no reservation or exception of any interest in it by the grantor. The grantee testified that she understood she was getting just what the deed calls for, and her brother, the grantor, admits that, in compliance with her demand that she should have thirty-eight feet of ground, he executed the deed to her for a lot of the dimensions called for in it, thinking that, because he had reserved one-half of the double house, the deed would not amount to anything for the one-half of the lot on which the same was erected. On this state of facts, whether the rights of the parties are to be determined from the words of the conveyance, or from the admission of the appellant that his sister understood he was conveying to her the lot she is now claiming, with one-half of the building on it reserved, the only conclusion to be arrived at is that of the common pleas and the Superior Court. The brother thought he was deceiving his sister; but he was not, in law or in fact. The deed on its face gives her just what she thought she was getting, and by his admission, he is estopped from saying he conveyed anything less. If he reserved anything, it was but one-half of the building, which his sister has agreed he may remove. As to his claim to title by adverse possession, the testimony discloses nothing moré than his retention of possession of the land sold to his vendee, for whom he held it in trust and against whom he could not start the statute of limitations until he manifested his intention to change the character of his possession by some act of hostility to her title, plainly indicating to her his intention to deny her right and to hold adversely to it: Buckholder v. Sigler, 7 W. & S. 154; Olwine v. Holman, 23 Pa. 279 ; Ingles v. Ingles, 150 Pa. 397; Connor v. Bell, 152 Pa. 444.

Judgment affirmed.


text:
    Chase v. Clearfield Lumber Company, Limited, Appellant.

      Evidence — Deed,—Assignment—Delivery—Question for fury.

    Where an assignment of an equitable interest in land is found in the assignor’s safe after his death, which it appears had been used generally by the family, as a repository for their papers, and there were facts and circumstances from which the jury could fairly have inferred that the deceased had actually passed the title to- the assignee, who was a member of his family, the question whether there was a delivery of the assignment to her is for the jury, and the-verdict in her favor will be sustained.

      Argued April 18, 1905.
    Appeal No. 293, Jan. T., 1904, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1903, No. 228, on verdict for plaintiff in case of Jane Chase v. Clearfield Lumber Company, Limited.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land by the cutting of timber. Before Wilson, P. J., of the Eighteenth Judicial District specially presiding.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the court rejected under objection and exception certain testimony as to the actions of the plaintiff’s husband which it was claimed estopped the plaintiff from maintaining the action. [3]
    Yerdict and judgment for plaintiff for $3,122.85. Defendant appealed.

      Krrors assigned were (1, 2) instructions as to the delivery of the assignment; (3) ruling on evidence, quoting the bill of exceptions.

      David L. Krebs, with him A. M. Diveriyht, for appellant.
    J. B. McEnally, with him W. Clark Miller, for appellee.
    October 9, 1905 :
   Per Curiam,

As evidence of her title to the land from which the appellant cut the timber the plaintiff produced and offered at the trial the assignment to her by John M. Chase, her. father-in-law, dated February 26, 1879. To repel the presumption that it had been delivered to her, appellant called B. F. Chase, a son of John M. Chase and one of his executors, who testified that after his father’s death he found the assignment in a box or the safe that had belonged to him. He was not certain whether he found it in the box or safe, but thought that most of the papers were in the safe, and the contention of the appellant is that it was there found. The witness, however, testified still further that various kinds of paper, such as contracts and insurance policies, belonging toother members of the family, were found in the safe, and added, “ Father’s safe was everybody’s safe.” There were facts and circumstances from which the jury' could fairly have inferred that the deceased had actually passed the title to his daughter-in-law; and the finding of the assignment in his safe after his death is entirely consistent with his delivery of it to her, in view of the explanation of the son, called by the defendant, that the safe was “ everybody’s safe,” for she may have deposited it there as other members of the family had deposited their papers in it. The question of delivery was purely one of fact for the jury and was submitted to them under proper and careful' instructions. The offer which is the subject of the third assignment of error was properly disallowed, for it was not to show that the appellee, by anything she had said or done, had estopped herself from asserting her title.

Judgment affirmed.