author: Mr. Justice Stewart,

text:
    Williams, Appellant, v. O’Donnell.

      Deeds — Covenants—General warranty — Eviction—Covenant running with land — Mortgage—Incumbrances.
    1. A covenant of general warranty in a deed of real estate, whatever else it may be, is a covenant against eviction, and as such it runs with the land, and is not broken until there has been an actual or constructive eviction under a paramount title.
    2. In an action to recover damages for a breach of a covenant of general warranty, where the statement of claim shows explicitly that the cause of action was an actual eviction following a sheriff’s sale in foreclosure proceedings of a mortgage in existence at the time the deed of warranty was made, it is error for the court to find that the real cause of action was a violation of the covenant against incumbrances implied in the words “grant, bargain and sell,” or in the covenant of general warranty, and that as such a covenant did not run with the land, the right of action was limited to the original vendee, and not to his grantee.
    3. Where two persons execute a mortgage on land, and subsequently a third person acquires an undivided interest in the land, and thereafter the three execute a deed of general warranty, the third party is liable in damages for a breach of the warranty resulting from an eviction under the paramount title created by the mortgage.
    Argued May 3, 1909.
    Appeal, No. 283, Jan. T., 1908, by plaintiff, from order of C. P. Warren Co., March T., 1908, No. 21, discharging rule for judgment for want of a sufficient affidavit of defense in case of Christopher L. Williams, Receiver of Fredonia National Bank of Fredonia, N. Y., v. Edward O’Donnell et al.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of covenant of general warranty in a deed of real estate. Before Lindsey, P. J.
    The opinion of the Supreme Court states the case.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.

      D. I. Ball, for appellant.
    It is necessary in order to maintain an action upon a covenant of general warranty that an eviction must be averred and proved: Clarke v. McAnulty, 3 S. & R. 364; Paul v. Witman, 3 W. & S. 407; Patton v. McFarlane, 3 P. & W. 419; Dobbins v. Brown, 12 Pa. 75; Stewart v. West, 14 Pa. 336; Wilson v. Cochran, 46 Pa. 229; Knepper v. Kurtz, 58 Pa. 480; Chambers v. Reinhold, 33 Pa. Superior Ct. 266; Hauck v. Single, 10 Phila. 551; Brown v. Dickerson, 12 Pa. 372.

      C. W. Stone, with him R. W. Stone and W. W. Wilbur, for appellees.
    The plaintiff's statement in this case is ambiguous and uncertain in that it does not make it appear whether he claims for breach of the covenant implied from the use of the words “grant, bargain and sell,” or of the express covenant of general warranty, but his counsel on argument in the court below, and in his paper-book here, renounces any claim on the implied covenant. The character and effect of that implied or statutory warranty are fully defined by the act of 1715 as simply a covenant against the acts of the grantor, and as Allen was not a party to the mortgage and had no connection therewith, such covenant is not broken as to him: Ake v. Mason, 101 Pa. 17; Knepper v. Kurtz, 58 Pa. 480.
    The express covenants in the deed from O'Donnell and Allen are in the ordinary form of a general warranty, and such general warranty includes a covenant against incumbrances. While, as the court below says, this may not have been specifically so decided in Pennsylvania, the general drift and logic of our decisions is to that effect, and other states have expressly so decided: Funk v. Cresswell, 5 Iowa, 62; Burk v. Burk, 64 Ga. 632.
    We feel bound to concede that in executing a deed of general warranty to Tarbox, Allen and O’Donnell covenanted against incumbrances on the land conveyed, and this is the covenant broken. It was broken as soon as made because the incumbrance existed at the time the deed was executed and delivered: Mygatt v. Coe, 11 L. R. A. 646; Seitzinger v. Weaver, 1 Rawle, 377; Cathcart v. Bowman, 5 Pa. 317; Memmert v. McKeen, 112 Pa. 315; Funk v. Voneida, 11 S. & R. 109; Huyck v. Andrews, 3 L. R. A. 789.
    June 22, 1909:
    The question of eviction is entirely immaterial because appellant's damage does not arise from any defect of title, nor from any alleged eviction, but simply from the existence of a lien: Funk v. Voneida, 11 S. &. R. 109.
   Opinion by

Mr. Justice Stewart,

This was an action to recover upon a breach of a general covenant of warranty contained in the deed of conveyance from the appellees, Edward O’Donnell, George H. Higgins, and O. C. Allen, to one Frank W. Tarbox, dated April 17,1890. The covenant was in the usual form and need not be here recited. The deed contained also the customary words “grant, bargain and sell.” By certain intermediate conveyances the title to the property so conveyed became vested in the Fredonia National Bank, April 7, 1894. Prior to the conveyance from O'Donnell, Higgins and Allen, O’Donnell and Higgins, who were then sole owners of the land described in the deed, executed a mortgage to one Emerson in the sum of 83,000. This mortgage was upon record when Allen subsequently purchased an undivided interest in the land, and it remained unsatisfied when the conveyance was made by O’Donnell, Higgins and Allen to Tarbox. In August, 1905, a scire facias was sued out upon this mortgage against O'Donnell and Higgins. This was followed by an alias writ against the same parties including the Fredonia National Bank, the plaintiff in the present action, as terre-tenant. Upon this latter writ judgment was obtained in the sum of 81,955 with interest and costs. A levari facias was issued on this judgment and the mortgaged premises were sold thereunder by the sheriff for the sum of 84,000, December 2, 1907. After paying thereout the judgment and costs, a balance of 81,873.79 was paid over to the Fredonia Bank. The suit by the bank, through its receiver, is to recover the difference between the amount paid to the bank and the total proceeds of the sheriff's sale, as damages resulting from the alleged breach of the warranty, to-wit: the sum of 82,226.01, with interest. Plaintiff's statement set out the facts as we have given them, averred an eviction under a paramount title, and consequent breach of the defendants’ warranty. The affidavits of defense filed in the case controvert none of the foregoing facts, but deny plaintiff’s right to recover for several reasons. The motion for judgment for insufficiency of the affidavits was refused on the ground that the warranty declared on and made the basis of plaintiff’s claim, whether express or implied, is a warranty against incumbrances, and if broken by the existence of the mortgage to Emerson as asserted, was broken when made, and vested no right of any action in anyone except Tarbox, the original vendee. In his opinion filed the learned judge says, “There is no allegation of any defect in the title at the time of the conveyance by Allen, Higgins and O’Donnell to Tarbox, or of any paramount title then existing. All that existed at that time was the mortgage given by Higgins and O’Donnell to Emerson, which was an incumbrance 'and is within the special covenant provided by the sixth section of the Act of May 28, 1715, 1 Sm. L. 94, arising from the words ‘grant, bargain and sell,’ which covenant was broken as soon as made.” Speaking of the effect of the general warranty, he holds that it too is a covenant against incumbrances, at least to the extent of including such incumbrances as may result in rightful eviction, and attaches to it the same incidents, so far as a breach by incumbrances is concerned, as are annexed to the implied statutory covenant. The conclusion he reaches is that the covenant here being against incumbrances, it was broken as soon as made, and being a personal covenant, not running with the land, it could avail none but Tarbox, the immediate vendee of the defendants. This was not only a misapprehension of the cause of action declared upon, but a misapprehension of the law as well. The covenant declared on was the general warranty in the deed; the breach assigned was that the plaintiff “by reason of said sheriff’s sale of said premises and sheriff’s deeds therefor, and by force of the paramount title under the sheriff’s deed, was evicted from the said piece or parcel of land hereinbefore described, and suffered,” etc. The statement filed is too explicit and definite to leave in doubt just what the breach complained of was; it was the plaintiff’s eviction by a paramount title, and there was but one covenant in the deed, the general warranty, that gave indemnity against this. Whether in addition to this warranty the deed contained other covenants, express or implied, which would have afforded to the immediate grantees of defendants protection against incumbrances, or whether the general warranty included as well a covenant against incumbrance, were questions wholly aside. If there were such covenants, it by no means follows that they superseded or in any wise impaired the force of the general warranty against eviction, no matter how the eviction might occur, only so as it resulted from the assertion of a paramount title. The learned judge says that there is no allegation of any defect of title at the time of the conveyance by Allen, Higgins and O’Donnell, or of any paramount title then existing; and yet the plaintiff’s statement set out that at the date of the conveyance from defendants, there was on record an indenture of mortgage executed by two of the defendants, at the time the sole owners, by which they did grant, bargain and sell, conditionally, to Emerson, the land which they subsequently conveyed. Here was an outstanding paramount title which was subsequently asserted against the defendants, resulting in an eviction. It comes to nothing to say that defendants’ immediate grantees had their right of action at once on the implied covenant against incumbrance, or even upon the general warranty, if such were the case, — a question not necessary here to decide. Defendants’ vendees were not put to the alternative of suing upon that breach or forfeiting the covenant against an eviction which might subsequently result from an enforcement of the incumbrance which in itself was a paramount title. They had their election either to treat it as an incumbrance and sue at once for the breach, or delay until another breach under another covenant occurred, namely, eviction. Treating it as a covenant against eviction, it of course ran with the land, and no cause of action could arise until the eviction occurred actually or constructively. The case of Funk v. Yonedia, 11 S. & R. 109, is nothing to the contrary. What that case decides is that an outstanding mortgage is within the covenant implied in the words “grant, bargain and sell,” and that the grantee is entitled to recover in an action upon this covenant, notwithstanding the mortgage is not due at the commencement of the suit; for the reason that the particular covenant sued on was broken the very instant it was entered into. This is not true with respect to general warranty. The breach there is in the eviction, and until then no right of action arises. The case cited clearly defines the distinction,- but it nowhere encourages the notion that the two covenants are inconsistent, or that by failure to adopt the remedy the law affords with respect to implied covenants the right to protection under the warranty is lost. On the contrary, it decides that between the covenants implied in the words “grant, bargain and sell,” and a special covenant of warranty (that is all it was in that case, and the difference is immaterial) there is no inconsistency whatever, and the function and operation of e§,ch are clearly distinguished. That the covenant of warranty runs with the land and is in this respect distinguishable from the implied covenants is a principle too familiar.to call for any citation of authorities. Whether it is a covenant as well against incumbrances is a question that does not arise in the case. Whatever-else it may or may not be, it is beyond all dispute a covenant against eviction. Whether it was something more was a wholly unnecessary inquiry. The learned judge concluded that it did embrace something else, and then rested his decision wholly upon this supposed additional covenant which he regarded as not assignable, ignoring entirely the other natural and confessedly legitimate effect of the warranty. This was a mistake. The eviction of the plaintiff is averred in the statement and not denied in the affidavit; it is therefore admitted. It was effected, just as in Brown v. Dickerson, 12 Pa. 372, by the foreclosure of a mortgage outstanding when the conveyance was made. Presumably in that case, as in this, the conveyance contained the words “grant, bargain and sell,” though the report of the case does not disclose such fact. The suit was not on any implied covenant, but on an express special warranty against eviction, and a recovery was sustained on the ground that the covenant was broken by a sheriff’s sale under a paramount incumbrance.

The other matters set up by way of defense were adjudged insufficient, and in this conclusion we concur. The fact that Allen was not one of the mortgagors, and that he acquired his interest in the property after the mortgage had been given, is of no consequence. He was one of the grantors in the deed to Tarbox and united with the other grantors in the warranty. It was his warranty as well as theirs. Nor is it of any consequence that he had but an undivided fourth interest in the premises at the time of the conveyance. The averment that a large amount of oil sufficient to pay the unpaid balance of the mortgage had been produced from the mortgaged premises and delivered to the mortgagee, is too indefinite to warrant an arrest of judgment. It is lacking in so many obviously essential elements that this feature of the affidavit calls for no discussion. For the reason here stated the order discharging the motion for judgment for want of a sufficient affidavit of defense is reversed, and the record is remitted to the court below with directions to enter judgment for plaintiff, unless other legal or equitable cause be shown to the court below why such judgment should not be entered.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Girard v. Case Brothers Cutlery Company, Appellant.

      Corporations — Promoters—Contract of employment — Ratification.
    Where the officers and stockholders of a corporation and the members of a partnership agree to form a new corporation to take over the business of the two concerns, and the promoters agree that one of the paid officers of the old corporation shall become a paid officer of the new corporation, and after the new corporation is organized such officer assumes his new office and performs its duties, the contract of employment is binding upon the new corporation unless it is renounced and disapproved by its directors.
    Argued May 3, 1909.
    Appeal, No. 341, Jan. T., 1908, by defendant, from judgment of C. P. McKean Co., Oct. T., 1907, No. 93, on verdict for plaintiff in case of Charles L. Girard v. Case Bros. Cutlery Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a contract of employment. Before Bouton, P. J.
    At the trial it appeared that the defendant, a corporation, was organized to take over the business of an older corporation known as the Kane Cutlery Company, and a partnership composed of John D. Case and others. Prior to the organization of the new company the officers and stockholders of the old corporation and the members of the Case firm orally agreed, according to the weight of the testimony, that the plaintiff, Charles L. Girard, should receive a salary as an officer of the corporation of $1,800 a year which was the same as he received as manager of the Kane Cutlery Company, and that he would be paid 100 per cent above par on his $1,500 investment in stock, when he left the employment of the new company. When the new company was organized the plaintiff assumed his new position, and continued therein for nearly eight months. He was then discharged. He then brought this action to recover $3,000, which he claimed he was to receive for his stock when he left the employ of the company.
    The court charged in part as follows:'
    [It is incumbent upon the plaintiff to show by a fair preponderance of his evidence that the contract sued on, the basis of his recovery, was actually entered into. If he has satisfied the jury of such facts, then the evidence that the services were performed is some evidence of a. ratification of such contract on the part of the corporation.] [2]
    [The serious question which this jury have is, what, was this contract? Was the contract entered into as testified to by this plaintiff, and was it entered into with the promoters of this corporation, and was it ratified by the corporation afterward, or was the contract merely as claimed on behalf of this defendant?

      Now, gentlemen, you will take this case and give it your best consideration, and it is an important case. Bring in such a verdict as is warranted by the evidence, find the facts in accordance with the evidence, bear in mind that the burden is on the plaintiff to satisfy the jury of his contention by a fair preponderance of the evidence.] [3]
    Plaintiff presented these points:
    1. The knowledge of the principal promoters of a corporation, who acquire their knowledge as such promoters, and who on the organization become officers and directors, is the knowledge of the corporation. Answer: We affirm this point, and say to you that if the promoters of a corporation have knowledge which is important to the corporation, knowledge which affects the corporation, and if such promoters after-wards become the directors of the corporation, that corporation is charged with the knowledge which those promoters had prior to the incorporation. [5]
    2. If the president or vice president or director or manager of a corporation set to work a person hired by the promoters of the corporation, this is a ratification. Answer: We affirm this point. We say to you that if a contract was made, a contract of hiring was made by the promoters of a corporation, and those promoters of that corporation afterwards became directors of the corporation or became the president or vice president of the corporation, and that person so hired by them afterwards performed the services, then the corporation would be bound on the theory that the corporation ratified the act of the promoters in the contract. They would have knowledge of the contract by reason of the fact that they became directors or principal officers of the corporation, and having become directors, having knowledge of the fact that that person performed the services, having knowledge of the fact that that person was performing such service under such a contract as they as promoters made with him, then the corporation would be bound to pay such person. [6]
    3. Where the promoters and incorporators are the same persons, become the directors and so continue for some time, a contract made by them before organization and acted upon afterwards is binding upon the corporation. Answer: We affirm this point. [7]
    4. Ratification is not essential by a resolution, but it is sufficient if the corporation by its act shows an adoption of the agreement. Answer: We affirm this point. This, of course, gentlemen, you will take in connection with the fact that they myst have had knowledge of the contract. [8]
    5. In order to bind a corporation by acquiescence of its directors to an act performed by its agents, promoters or officers in its behalf, it is not necessary that notice thereof be given them sitting in their official capacity as a board. It is sufficient if they are personally cognizant thereof, and do not call a meeting to disavow it. Answer: We affirm this point. [9]
    6. If the jury find there was such agreement as claimed by the plaintiff made by the promoters, that plaintiff rendered the services and was ready to comply with the other terms, and that the defendant by its officers afterwards ratified the same, then the corporation is bound by the terms of the agreement so made. Answer: We affirm this point. [10]
    6J. Ratification by defendant of any part of the agreement is, so far as the plaintiff is concerned, a ratification of the whole. Answer: We affirm this point. To explain, if a contract was made to do several things, all in one contract, and if the party who was to perform the services or do those things, did with the assent of the corporation who had knowledge of the contract, part of the things, that would be a ratification of the whole contract, and the plaintiff would be em titled to recover on the whole contract. [11]
    7. If persons assume to act for an intended corporation without legal authority, and the corporation gets the benefits and uses the property, such acts will ratify the contract and render the corporation liable. Answer: That point is affirmed. As a general proposition of law the same rule applies as to individuals. If a person enters the service of an individual without any previous contract, then he may recover from that person for such services, if the person for whom the services are performed does not forbid him from continuing, but permits him to go on. [12]

      8. Where officers of a corporation know of a contract made for the corporation and allow it to be acted upon without objection it is evidence of ratification by the corporation. Answer: We affirm that point, but say to you that it is merely some evidence of the ratification and not evidence from which a jury of itself without other evidence would be justified in finding a ratification, but would be in the absence of other evidence go slight that a jury would not be justified in finding a ratification. [13]
    Verdict and judgment for plaintiff for $3,558.80. Defendant appealed.

      Errors assigned were (2, 3, 5-13), above instructions, quoting them.

      E. P. Schoonmaker, with him A. P. Huey and William Wallace Brown, for appellant.
    There was no clear, precise and indubitable evidence that the alleged verbal contract was made: Thomas v. Loose, 114 Pa. 35; Jeannette Bottle Works v. Schall, 13 Pa. Superior Ct. 96.
    The contract is void as against public policy: Spering’s App., 71 Pa. 11; Kauffman v. Keiper, 5 Pa. Dist. Rep. 620; Swing v. Munson, 191 Pa. 582.
    There is absolutely no evidence that the corporation after it was formed, ratified the alleged contract with the plaintiff: Munis v. Oliver, 24 Pa. Superior Ct. 64; Algeo v. Algeo, 10 S. & R. 235; Allen v. Colliery Engineers’ Co., 196 Pa. 512.

      John G. Johnson, with him F. D. Gallup and Harvey G. Berkhouse, for appellee.
    The knowledge of the principal promoter of a corporation, who acquires his knowledge as such promoter, and who on the organization becomes manager— is the knowledge of the corporation: Huron Printing, etc., Company v. Kittleson, 4 S. D. 520 (57 N. W. Repr. 233).
    The president of a corporation, who is its general manager, has authority to adopt and ratify a contract made by himself for the corporation before it is legally created for the performance of service for the company, which he would have power to engage if no previous contract existed: Oakes v. Cattaraugus Water Company, 28 L. R. A. 544.
    June 22, 1909:
    Where the promoters and incorporators are the same persons and are the stockholders and so continue for some time, a contract made by them before organization and acted on afterwards, is binding upon the corporation: Burden v. Burden, 8 App. Div. 160.
    Ratification is not essential by a resolution, but it is sufficient if the corporation by its act, show an adoption of the agreement: Bagaley v. Iron Co., 146 Pa. 478; Kelsey v. National Bank of Crawford County, 69 Pa. 426; Finnegan v. Vinegar Co., 26 Ore. 152 (37 Pac. Repr. 457); Bell’s Gap. R. R. Co. v. Christy, 79 Pa. 54; Titus v. R. R. Co., 5 Phila. 172; People’s Bank v. National Bank, 101 U. S. 181; Allibone v. Hager, 46 Pa. 48; Finletter v. Acetylene Light, etc., Co., 215 Pa. 86; Moulding Co. v. Stulb, 215 Pa. 91; Trust Co. v. Lappe, 216 Pa. 549; Weeks v. Lippencott, 42 Pa. 474; Lorillard v. Clyde, 86 N. Y. 384; Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 28 Sup. Ct. Repr. 634.
   Opinion by

Mr. Justice Mestrezat,

The learned trial judge pointed out in the charge the testimony which sustains the contract the plaintiff alleged was made with him by the promoters of the new corporation. It was sufficient if believed by the jury to establish the contract. The testimony it is true was contradictory, and even one of the plaintiff’s witnesses testified that the contract was to be performed by the Case Brothers and not by the new corporation, but without the testimony of this witness there was sufficient to go to the jury on the question whether the alleged parol contract was entered into by the promoters of the majority in interest of the stock of the new corporation and was to be performed by that corporation. Some of the witnesses on the . part of the defendant were not sufficiently clear in their testimony to warrant implicit confidence in their denial of the existence of the contract. On the whole, therefore, the jury were justified under the evidence in finding that the contract, as set up by the plaintiff, was made by him and the promoters of the new Corporation. This was the controlling question in the case and the jury have settled it by a verdict in favor of the plaintiff.

The plaintiff is not seeking to contradict, or vary the written agreement entered into by the committees representing the two cutlery companies. In addition to his interest as a stockholder in the Kane Cutlery Company, the plaintiff had a valuable contract with that company. He sought to protect that contract by the parol contract with the promoters of the new corporation. This we think he had a right to do and that it contravenes no principle of public policy. It is manifest from the evidence that the Case Brothers who owned the New York Cutlery Company hold a majority of the stock of the new corporation. Their contract as promoters would be binding upon the present corporation unless it was renounced and disapproved by its directors: Bell’s Gap Railroad Co. v. Christy, 79 Pa. 54. There is no evidence in the case that the new corporation took any official action expressing its disapproval of the contract made between the plaintiff and the promoters. On the contrary, if the evidence of the plaintiff is believed he entered into the service of the new corporation in pursuance of his contract with the Case Brothers and continued in its service at the same salary which the Kane Cutlery Company had agreed to pay him.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Finkbeiner, Appellant, v. Solomon.

      Negligence — Dynamite—Infant—Proximate cause — Nonsuit.
    In an action to recover damages for personal injuries to a boy nine years old, it appeared that the injury was the result of an explosion of. dynamite caps. Some time prior to the accident the plaintiff, who was the father of the boy, purchased from defendant a lot of land, and also a frame bam on another lot. He subsequently moved the barn on to the lot which he purchased, and in doing so carried along in the barn some of the effects of the defendant. Subsequently he notified the defendant that he would need the barn, and the latter moved out the greater part of his effects, leaving only a few small items. A few days afterwards while the plaintiff’s son and some other children were playing in the barn, a much younger child than the boy injured found upon a dark shelf in the bam a tin box containing dynamite caps. The older boy took the caps, and while attempting with a stone to drive a nail through one of them the cap exploded, and the boy was severely injured. Held, (1) that the injury was not the proximate result of the act of the defendant in leaving the caps in the barn, but was caused by the unrelated act of a third party; (2) that the leaving of the caps upon a dark shelf in the bam was not in itself a negligent act; (3) that it was the duty of the plaintiff in taking possession of the building and moving it upon his own lot to inspect its contents and remove anything dangerous before permitting his children to use it.
    Argued May 4, 1909.
    Appeal, No. 74, Jan. T., 1909, by plaintiff, from order of C. P. Potter Co., Dec. T., 1906, No. 17, refusing to take off nonsuit in case of John Finkbeiner and Walter Finkbeiner, minor child of John Finkbeiner, v. A. Solomon.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy nine years old. Before Ormerod, P. J.
    The circumstances of the accident are set forth in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      A. S. Heck, with him C. C. Vandeboe, for appellant.
    In determining the defendant’s liability the law relating to his duty in caring for dangerous and highly explosive substances, and the duty that he owed to children to protect them from danger should be considered: Rachmel v. Clark, 205 Pa. 314; Powers v. Harlow, 51 Am. Rep. 154; Hydraulic Works Co. v. Orr, 83 Pa. 332.
    The cases in which Hydraulic Works v. Orr has been referred to and discussed are as follows: Gramlich v. Wurst, 86 Pa. 74; Gillespie v. McGowan, 100 Pa. 144; Schilling v. Abernethy, 112 Pa. 437; Biddle v. Railway Co., 112 Pa. 551; Arnold v. Railroad Co., 115 Pa. 135; Westerberg v. Kinzua Creek, etc., Railroad Co., 142 Pa. 471; Corbin v. Philadelphia, 195 Pa. 461; Enright v. Railroad Co., 198 Pa. 166; Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326.
    June 22, 1909:

      W. K. Swetland, with him W. F. DuBois, for appellee.
    Where an independent intervening cause interrupts the natural sequence and causal connection between the original act of negligence and the injury, the intervening cause becomes the approximate cause and the author of the negligence is not liable: Herbstritt v. Lackawanna Lumber Co., 212 Pa. 495; Curtin v. Somerset, 140 Pa. 70; Bannon v. R. R. Co., 29 Pa. Superior Ct. 231; Fitzmaurice v. Fabian, 147 Pa. 199; Congregation v. Smith, 163 Pa. 561; Tutein v. Hurley, 98 Mass. 211; Gudfelder v. Ry. Co., 207 Pa. 629; Harriman v. Pittsburg, etc., Ry. Co., 45 Ohio, 11 (12 N. E. Repr. 451); Penna. R. R. Co. v. Hope, 80 Pa. 373; Hoag v. Lake Shore, etc., R. R. Co., 85 Pa. 293; Penna. R. R. Co. v. Kerr, 62 Pa. 353.
   Opinion by

Mr. Justice Potter,

This was an action of trespass brought by John Finkbeiner and his minor child, Walter Finkbeiner, against A. Solomon to recover damages for personal injuries alleged to have been sustained by Walter Finkbeiner through the negligence of the defendant.

In 1905, Finkbeiner purchased from Solomon a house and lot in Shingle House borough, Potter county, and also a frame barn located on another lot, which was moved by the purchaser to the lot previously bought by him, within a short distance of the house. At the time of the purchase of the barn, Finkbeiner did not have immediate use for it and he gave permission to Solomon to leave in the barn certain “stuff,” boxes, wood and pails and a lot of different items, which were stored there. In October, Finkbeiner moved into the house, having previously given Solomon notice that he would need the barn. About October 9 or 10, Solomon moved out the greater part of his stuff from the barn, leaving only a few small items.

On October* 15, 1905, Walter Finkbeiner, who was nine years old, was playing in the barn with some other children. One of them, a much younger child, found some dynamite caps, in a tin box, and the other children apparently appropriated them. The injured boy testified that he showed the caps to his mother, who thought they were exploded cartridges or bullets. The boy attempted with a stone to drive a nail through one of the caps, causing it to explode. Two fingers and the thumb of his left hand were so injured by the explosion, that.amputation was necessary. At the trial of the case, a judgment of compulsory nonsuit was entered, which the court refused to take off. In his opinion, the trial judge says, “The defendant was rightfully using the barn for storage purposes. It cannot be said that the barn was an improper place to store the dynamite cartridges. There was no danger to be anticipated from the caps if not interfered with. ■ It may be assumed that it was necessary to keep them in a dry place. He placed them where they were unlikely to be discovered.” And he further adds, “Can it be said that the placing of a box two inches and two and one-half square, by one inch in depth, in a dark place upon a beam in a barn can be such negligence that the jury should be permitted to say that it was natural and probable that the children playing about the barn would discover it? But assuming that the jury should find that it was negligent in the defendant .to leave them where he did, how can it be said that the injury to the plaintiff was the natural and proximate consequence of his act?” He then points out that the injury to the plaintiff, was brought about by the discovery and taking possession of the box of caps by another small boy, who turned it over to his playmates. The court says, “Had the box been left wh§re it was put by the defendant no accident would have occurred. We think this is such an intervening cause, as broke the causal connection between the alleged negligence of the defendant and the injury to the plaintiff.”

Our examination of the testimony leads us, upon the whole, to coincide with the conclusion of the trial judge. The facts of the case bring it close to the line of what might be deemed negligence, but we cannot say that the view taken by the court below was wrong. It cannot be said that placing a box of such caps upon a dark shelf in a barn, is in itself a negligent act. If defendant had thrown the caps out, loosely, where children were likely to play, and would be apt to find them, the case would have been very different. We think the facts of this case bring it within the principle of Marsh v. Giles, 211 Pa. 17, where it was held that the injury to the plaintiff was caused by the unrelated act of a third party and was not a probable consequence of the defendant’s act. The present case is even nearer in its facts, to those in Swanson v. Crandall, 2 Pa. Superior Ct. 85, where as set forth in the syllabus, “the evidence disclosed the following facts: A loaded revolver was kept in the upper drawer of a chiffonier, which was used exclusively by the head of the family, and in his absence from the room, while his wife was in bed with her face averted, a five years’ old child in quest of play, discovered and accidentally discharged the revolver to the plaintiff’s injury. Held, That placing the revolver in the drawer was not the natural and probable or proximate cause of the injury, and, the evidence being undisputed, the jury should have been instructed to find for the defendants.”

In the opinion, Orlady, J., said (p. 90): “As placed by Crandall the revolver was perfectly harmless, and, save for the intervention of baby fingers, would not have caused the injury. Its discovery by the child could not have been reasonably anticipated by him. He was not present at the time of the accident. The wife was not negligent in giving the care of Evelyn to the nurse girl, and had the right to expect that attention would be so given as to prevent injury to either child. In the moment of time following the dressing of the little girl, the plaintiff could not be charged with contributory negligence in its legal sense. The unfortunate occurrence was an event which resulted undesignedly and unexpectedly, and which could not have been reasonably anticipated as a usual and natural result.”

If the plaintiff in the case at bar had left a scythe, or an axe, in the same place at which the box of caps was left, and the children had found it, and succeeded in getting it down, and playing with it, to the injury of one of their number, the want of causal connection between the act of the defendant and the injury, would have been more apparent. There was nothing wrongful in the placing of the caps in the barn, in the first instance, at the time and place where the box was placed. After-wards, when the father of the boy who was injured took possession of the building and moved it upon his own lot, where his children were liable to enter it in play, the duty would seem to have been upon the parent to inspect what was then his own building, and look out for anything which might be dangerous, before permitting his children to use it. The defendant was not then in possession, or in charge of the building.

The assignment of error is overruled, and the judgment is affirmed.


text:
    Barnsdall, Appellant, v. Bradford Gas Co.

      Mines and mining — Oil and gas lease — Lease—Title—Possession— Ejectment.

    1. Where an instrument in writing does “grant, demise, lease and let unto the said party of the second part . . , , all that certain tract of land .... containing 100 acres, ... , for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products,” the paper creates a corporeal interest in the lessee in the demised premises and is not merely a license to enter and operate for oil and gas; and the lessee although he never entered into possession of the premises may maintain an action to recover possession from a third party not claiming under the lessor.
    2. There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case, the licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, and in such proceeds not as realty, but as personal property, and his possession is the possession of the owner. A contract simply giving a right to take ore from a mine, no interest or estate being granted, confers a mere license, and the licensee acquires no right to the ore until he separates it from the freehold. But an instrument that demises and leases certain lands for mining purposes only, for a designated term of years, at a fixed rent, and giving the right to erect all necessary buildings] etc., is a lease, and not merely a mining license.
    Argued May 4, 1909.
    Appeal, No. 75, Jan. T., 1909, by plaintiff, from judgment of C. P. Potter Co., Dee. T., 1907, No. 10, for defendant non obstante veredicto in case of William Barnsdall, Jr., v. Bradford Gas Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for an interest in land in Hebron township. Before Ormerod, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff.
    Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      W. I. Lewis, with him W. F. DuBois, Archibald F. Jones and R. R. Lewis, for appellant.
    A lease of land for a definite term and for a particular purpose, creates a corporeal interest, which will sustain an action of ejectment by the lessee against a stranger to the title: Funk v. Haldeman, 53 Pa. 229; Caldwell v. Fulton, 31 Pa. 475; Chicago & Allegheny Oil & Mining Co. v. Petroleum Co., 57 Pa. 83; Stoughton’s App., 88 Pa. 198; South Penn Oil Co. v. McIntyre, 28 S. E. Repr. 922; Kitchen v. Smith, 191 Pa. 452; Duke v. Hague, 107 Pa. 57; Brown v. Beecher, 120 Pa. 590; Hicks v. American Natural Gas Co., 207 Pa. 570; Williamson v. Jones, 25 L. R. A. 222.
    The following cases hold that a- lease of land for a term of years for the purpose of mining, boring for and producing oil and gas creates a corporeal interest in the lessee, namely, an estate in land and not a mere license: Chicago, etc., Oil & Mining Co. v. Petroleum Co., 59 Pa. 83; Barker v. Dale, 3 Pitts. 190; Titusville Novelty Iron Works’ App., 77 Pa. 103; Stoughton’s App., 88 Pa. 198; Brown v. Beecher, 120 Pa. 590; Chamberlain v. Dow, 16 W. N. C. 532; Duke v. Hague, 107 Pa. 57.
    June 22, 1909:
    The following cases hold that a grant of an exclusive right to produce oil and gas from certain lands amounts neither to a lease of the land nor a sale of the minerals in the land, but is merely a license to work the land for minerals: Funk v. Haldeman, 53 Pa. 229; Dark v. Johnston, 55 Pa. 164; Karns v. Tanner, 66 Pa. 297; Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173; Thompson’s App., 101 Pa. 225; Hicks v. Gas Co., 207 Pa. 570; Kelly v. Keys, 213 Pa. 295.

      A. S. Heck and W. K. Swetland, with them W. E. Burdick, for appellee.
    Defendant contends that the agreement in question is but a license, an uncorporeal hereditament which conferred upon the Cummings Oil & Gas Company the right to go upon the lands in question and operate the same for oil and gas, and having discovered the same to sever it from the realty: Lehigh, etc., Coal Co. v. Wright, 177 Pa. 387; Funk v. Haldeman, 53 Pa. 229; Dark v. Johnston, 55 Pa. 164; Union Petroleum Co. v. Bliven Petroleum Co., 72 Pa. 173; Thompson’s Appeal, 101 Pa. 225; Hancock v. McAvoy, 151 Pa. 460; Nat. Gas Co. v. Philadelphia Co., 158 Pa. 317; Hicks v. American Nat. Gas Co., 207 Pa. 570; Kelly v. Keys, 213 Pa. 295.
    Appellant cannot maintain an action of ejectment, entry never having been made on the premises: Sennett v. Bucher, 3 P. & W. 392; Williams v. Downing, 18 Pa. 60; Natural Gas Co. v. Phila. Co., 158 Pa. 317; Watson v. Hue, 9 Pa. Dist. Rep. 519.
   Opinion by

Mr. Justice Mestrezat,

We think the learned court below was in error in setting aside the verdict and entering judgment non obstante veredicto for the defendant. The prsecipe and writ show this case to be ejectment for the recovery of 100 acres of land in Hebron township, Potter county. The parties claim through a common source of title. The plaintiff’s title rests upon what is known as a gas and oil lease, dated November 8, 1906, the material portions of which are as follows: “The said party of the first part, for and in consideration of the sum of one dollar .... and with the covenants and agreements hereinafter given on the part of the party of the second part, .... has granted, demised, leased and let, and by these presents do grant, demise, lease and let unto the said party of the second part, .... for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products, all that certain tract of land .... containing one hundred acres, more or less, . . . .” The lease was to remain in force -for a term of ten years, and as much longer as the premises were operated for oil or gas or as the rent for failure to commence operations was paid. The consideration was the delivery in pipe lines to the credit of the first party the equal one-eighth part of all the oil produced and saved from the premises.

The lessee never went into possession of the premises, and brings this action to recover possession from a third party who does not claim under the lessor. The defendant resists a recovery on the ground that the agreement above recited, and upon which the plaintiff relies, conveyed no interest in the land but was simply a license to enter for the purpose of operating for oil and gas, and therefore did not convey a title sufficient to sustain an action of ejectment, the plaintiff never having been in possession. The plaintiff concedes that if the interest conveyed by the agreement was simply a license to operate for oil, the action cannot be sustained. On the other hand, the plaintiff contends that the agreement between him and his lessor conveyed a corporeal interest or an estate in land, and was not a mere license to drill and operate for oil on the premises leased; that being an interest in land and he having a right of possession by virtue of his lease, can recover the possession of the demised premises in an action of ejectment.

Whether an agreement, commonly known as an oil and gas lease, creates an estate or interest in land or is a mere license to enter and operate for those minerals has frequently been before this court, as the numerous reported decisions attest. An examination of the cases will disclose that they have drawn a clearly defined distinction between agreements which create a lease of the land for mineral purposes and those which are simply a license giving to the licensee authority to enter and operate for minerals. While this distinction has not been strictly adhered to in all the cases, yet it is recognized and has been established in the leading cases on the subject in this state, and is sustained by text-writers. It is well stated in 27 Cyclopedia of Law & Procedure, 690, where it is said: “There is a broad distinction between a lease of a mine, under which the lessee enters into possession and takes an estate in the property, and a license to work the same mine. In the latter case the licensee has no permanent interest, property, or estate in the land itself, but only in the proceeds, and in such proceeds not as realty, but as personal property, and his possession is the possession of the owner. A contract simply giving a right to take ore from a mine, no interest or estate being granted, confers a mere license, and the licensee acquires no right to the ore until he separates it from the freehold. But an instrument that demises and leases certain lands for mining purposes only, for a designated term of years, at a fixed rent, and giving the right to erect all necessary buildings, etc., is a lease, and not merely a mining license.”

The language of the agreement in the case at bar shows it to be a lease, conveying an interest in land, a corporeal and not an incorporeal hereditament. The lessor does, in the language of the lease, “grant, demise, lease and let unto the said party of the second part .... all that certain tract of land .... containing one hundred acres, .... for the sole and only purpose of mining and operating for oil, gas and other minerals and of laying pipe lines and of building tanks, stations and structures thereon to take care of the said products.” It will thus be seen, by this transposition of the language of the lease, that the land itself is granted and demised, and not simply the right to enter upon and prospect and operate for oil or gas. It is not simply a privilege given to the lessee to use the premises for mining purposes but the land itself is demised with the right to obtain the minerals therein. By the agreement the exclusive right to take and appropriate all the minerals is conveyed, and during the term of the lease the lessor has no right to enter and operate for oil or gas. The title to the oil except the one-eighth thereof is vested in the lessee, as is also the title to the gas and other minerals in the land. Under the rule of construction established, not only in other jurisdictions, but by our own cases, therefore, the agreement creates a corporeal interest in the lessee in the demised premises, and is not merely a license to enter and operate for oil and gas. In Chicago & Allegheny Oil & Mining Company v. United States Petroleum Company, 57 Pa. 83, the lease contained this language: “The party of the first part hereby covenants and agrees to lease to the party of the second part his heirs and assigns, all his right, title, interest and claim in and to all that certain piece or parcel of land .... the said party of the second part to have the sole and exclusive right to bore or dig for oil on said lands and gather and collect the same therefrom, for the term of twenty years from the date hereof.” Mr. Justice Agnew, in the opinion of the court, speaking of the character of the agreement, says (p. 90): “The agreement .... is manifestly a lease for years of a corporeal tenement with an added exclusive right to bore for, obtain and take the oil found, returning as rent one-fourth of the product to the lessor.” In Titusville Novelty Iron Works’ Appeal, 77 Pa. 103, Mr. Justice Gordon delivering the opinion and speaking of a leasehold on which were a house and an oil well, said (p. 107): “A lease of land during the term is as fixed as the land itself, for it can only be used upon the land out of which it arises. It is nothing more or less than a right to use a freehold for the term mentioned in the lease. It is therefore an estate in land.” In Kitchen v. Smith, 101 Pa. 452, the land was leased for fifteen years “for all purposes necessary to develop the same by procuring oil and taking it therefrom, together with a right to put up and keep tanks thereon for its storage.” As to the estate created by the lease, Mr. Justice Trunicet delivering the opinion says (p. 457): “The lease vested in the lessees and their assigns, the exclusive possession of the land for the purpose of searching for, producing, storing and transporting oil. They had the right to possession of so much of the land as was necessary for said purpose, and were in the actual possession of a considerable part, if not the whole. Their right was not a mere license.” In Duke v. Hague, 107 Pa. 57, the contract granted and leased “the exclusive right for the sole and only purpose of mining and excavating for petroleum, rock or carbon oil, all that certain tract of land, . . J . to have and to hold the said premises exclusively for the said purpose only, unto the said party of the second part, .... for and during the full term of twenty years.” The trial court held that the lease created an interest in the land. Mr. Justice Trunkey in affirming the judgment said (p. 66): “The purpose of the lease is first named, but that the land is leased for that purpose is as plain as if a description of the land preceded the clause restricting its use. ... A portion of the oil that may be produced is reserved as rent or royalty. Failure of the lessee to perform his covenants will avoid the lease. Notwithstanding these stipulations, the lessee is vested, with an interest in the land. His interest is that of a tenant for years for the purpose of mining, he has an absolute right of possession of all the surface necessary, and no one else can rightfully take out oil during the term, save under him. The whole of the oil, or only a part, may be taken under the lease, but whatever shall be taken is of the substance of the realty. He is not an absolute owner of the whole of the oil, as he would be were all the oil in place conveyed to him in fee.” In Brown v. Beecher, 120 Pa. 590, the land itself was demised “with the sole and exclusive right and privilege, during said period, of digging and boring for oil and other minerals and collecting the same therefrom.” Mr. Justice CiArk in delivering the opinion said (p. 603): “As to the legal force and effect of this right there can, we think, be no doubt: it conveyed an interest in the land; in this respect it is distinguished from a license.”

Many other cases to the same effect might be cited, but these are sufficient to show that the agreement between the plaintiff and his lessor was a lease, conveying an interest in the land; and was not a license to enter upon the land and operate for mining purposes. In the last case cited, the decisions referred to above are distinguished from Funk v. Haldeman, 53 Pa. 229, and kindred cases by Mr. Justice Clark in the following language (p. 603): “The contract of February 3, 1882, between Cornon and Marsh, is not a mere license as in Funk v. Haldeman, 53 Pa. 229, for in that case the words of the grant amounted neither to a lease nor a sale of the land, nor of any of the minerals in the land. Funk’s right was therefore declared to be a license to work the land for minerals, a license coupled with an interest which the licensor could revoke.”

The defendant contends that, conceding the contract in question to be a lease and not a license, the plaintiff cannot maintain ejectment as he had not entered into possession of the premises. We are aware of the rule at common law which in the case of an ordinary lease requires the lessee to have been in possession of the premises before he can maintain ejectment against anyone who had ousted him. That is the rule recognized and followed in this state where real property is demised for the purpose of occupancy and use by the tenant. But we are not disposed to enforce it in cases like the present where by the contract the lessee is granted the possession of the land with the sole and exclusive right to mine and remove the minerals therein. In such case, while the tenant is regarded as a lessee, yet by the agreement he obtains title to the minerals and the right to the possession of the premises for removing them. As said in Duke v. Hague, 107 Pa. 57, the tenant has an absolute right of possession of all the surface necessary to enable him to drill and remove the oil and no one else can rightly take out oil during the term, save under him. The contract gives him the right to the oil and to the possession of the land to enable him to remove it. As also said in the Duke case, the whole of the oil, or only a part, may be taken under the lease, but whatever shall be taken is of the substance of the realty. Having acquired by the contract a right to a part of the realty, the law should give the lessee an adequate remedy to enforce that right. Ejectment is the proper action for the recovery of possession of land in this state. It is a possessory action, and if a party has a right to possession and the immediate right to enter, he may maintain ejectment. Here the lessee has the right to the possession of the premises, the immediate right to enter, and the right to take the oil therefrom which is a part of the realty. It will be observed that the lessee has not simply the right to the possession of the premises, but also the title to the oil or such part thereof as he 'may be able to remove during his tenancy.

It is apparent that the only effective remedy for the lessee is ejectment, by which he may recover possession of the premises. An action on the contract, the ordinary remedy by the lessee for a breach thereof in refusing to give possession of the premises, would be entirely inadequate. The value of the oil to the lessee would depend upon the quantity produced and the fluctuations of the market during the ten years of the lease. It is apparent, therefore, that there is no standard for computing damages which would give the lessee a certain and an adequate remedy by an action on the contract. Such difficulty can be overcome, and the rights of the parties, contesting for the possession of the premises, can be adequately enforced by an action of ejectment in which the party legally entitled can be placed in possession of the oil.

This is not a contest between the lessor and the lessee for the possession of the premises. The lessor concedes to the lessee the right to the oil and to the possession of the premises for the purpose of removing it. This action is by the lessee against a third party who claims adversely to the lessor, and we think he can maintain ejectment which is the only action that will afford him an adequate remedy for his alleged injuries. The right to maintain the action is not decided but is recognized in Messimer’s Appeal, 92 Pa. 168; Long’s Appeal, 92 Pa. 171; Williams v. Fowler, 201 Pa. 336.

The right of the lessee in a mining lease to maintain ejectment was sustained by the common pleas of Luzerne county and by the circuit court of the United States for the western district of Pennsylvania. In Grotz v. The Lehigh and Wilkes-Barre Coal Co., 1 Kulp, 53, Judge Woodward held that ejectment may be maintained by the lessee of coal under a coal lease against the owner of the fee in possession. In charging the jury he said (p. 57): “Supposing the parties have a right to a suit, is ejectment a proper remedy? We hold that ejectment may be maintained; that a lease of coal, the title to the surface, and the title to the coal remaining in the lessor, subject only to the lease, can be the basis of an action of ejectment without there having been any actual entry upon the coal, or any actual mining and taking away of the coal.” Barker v. Dale, 3 Pitts. Rep. 190, was an action of ejectment in the circuit court of the United States for the western district of Pennsylvania, and was tried before McKennan, Cir. J. The action was by a lessee, who had never taken possession, against a subsequent lessee under the same lessor, and was brought on a written lease by which certain land was let to the plaintiff “for the sole and only purpose of mining and excavating for petroleum, coal, rock or carbon oil, or other valuable mineral or volatile substances.” The court held that ejectment would lie, and in answer to .the defendant’s first point said: “We are of the opinion that by the lease, dated December 8, 1865, a corporeal interest in the business therein described was vested in the plaintiff, which is the proper subject of an action of ejectment.” And in answer to the fourth point the court replied: “The lease grants to the plaintiff for a determinate term, the premises in dispute, for the purposes therein stated, subject to lessor’s 'use of the same for the purpose of tillage;’ and this is exclusive of any right of the lessor to mine or excavate within their defined limits, 'for petroleum, coal, rock oil, carbon oil, or other mineral or volatile substances.”

The judgment is reversed, and the court below is directed to enter judgment on the verdict,


text:
    Stehle v. Jaeger Automatic Machine Company, Appellant.

      Negligence — Master and servant — Proximate and remote cause — Industrial establishments — Act of May 2, 1905, P. L. 352.
    1. It is never a question for a jury whether one violating a positive statute exercised reasonable care and caution in so doing.
    2. Where a boy under the age of fourteen years employed in an industrial establishment in violation of the Act of May 2,1905, P. L. 352, is injured while cleaning a pipe, both he and his father may recover damages for his injuries, although the cleaning of the pipe was no part of the boy’s duty, and he had been specially warned not to attempt it. In such a case the proximate cause of the injuries was the employment of the boy in violation of the act.
    3. It is because a child under fourteen years of age is likely to be imprudent and negligent, and is therefore exposed to greater dangers to himself and others as well, that his employment in industrial establishments is forbidden. So it is never a question of risk of employment or of contributory negligence.
    4. Where the circumstance or event which concurs with the negligent act in causing the injury might reasonably have been foreseen as likely to occur under the circumstances, the person guilty of such negligent act is liable for the resulting injury.
    5. Where a boy under fourteen years of age employed in an industrial establishment in violation of the act of May 2,1905, is injured, the father as well as the boy may recover damages for the injuries, and it is immaterial that the father had knowledge of the statute, or that a factory inspector had advised the defendant that as the boy had been employed prior to the passage of the act he was not within its terms.

      Constitutional law — Title of act — Employment of infants — Act of May 2, 1905, P. L. 352.
    6. Sec. 2 of the Act of May 2,1905, P. L. 352, regulating the employment of children in industrial establishments is not unconstitutional, notice of the provisions of the section being sufficiently given in the title.
    Argued May 4, 1909.
    Appeal, No. 34, Jan. T., 1909, by the Jaeger Automatic Machine Company, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for plaintiff in case of George Stehle, a minor, by his father and next friend, George Stehle, and the said George Stehle, father of the said George Stehle, minor, in his own right, v. Jaeger Automatic Machine Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Argued May 4, 1909.
    Appeal, No. 69, Jan. T., 1909, by George Stehle, father of George Stehle, minor, in his own right, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 4,964, on verdict for defendant in case of George Stehle, father of George Stehle, minor, in his own right, v. Jaeger Automatic Machine Company.'
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover damages for personal injuries to a boy under fourteen years of age. Before Carr, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for George Stehle, Jr., for S3,500, and for the defendant as against George Stehle, Sr.

      Error assigned in No. 34 was refusal of binding instructions for defendant.

      'Error assigned in No. 69 was in admitting the evidence as to the statement of the factory inspector as set forth in the opinion of the Supreme Court, and in refusing judgment for George Stehle, Sr.

      Francis Shurik Brown and Alexander Simpson, Jr., for the Jaeger Automatic Machine Company, appellant.
    The Act of May 2, 1905, P. L. 352, is unconstitutional: Com. v. Samuels, 163 Pa. 283; Com. v. Hoopes, 15 Pa. Dist. Rep. 894.
    The act of May 2,1905, imposes no imputed negligence upon the defendant in this case, because the minor employee was not injured while doing the work for which he was employed: Lenahan v. Pittston Coal Mining Co., 218 Pa. 311; Robb v. Pennsylvania Co. for Ins., etc., 186 Pa. 456.

      William F. Brennan, for George Stehle, Jr,
    cited: The Act of May 2,1905, P. L. 352; Clarion County v. Clarion Twp., 222 Pa. 350; Com. v. Beatty, 15 Pa. Superior Ct. 5; Com. v. Jones, 4 Pa. Superior Ct. 362; Com. v. Charity Hospital, 198 Pa. 270.
    June 22, 1909:
    It has been held in many cases that “The failure to do an act commanded, or the doing of an act prohibited, is negligence per se: ” Brower v. Locke, 31 Ind. App. 353 (67 N. E. Repr. 1015); Owens v. Hannibal, etc., R. R. Co., 58 Mo. 386; Smith v. Milwaukee Builders’, etc., Exchange, 91 Wis. 360 (64 N. W. Repr. 1041); Kelley v. Anderson, 15 S. D. 107 (87 N. W. Repr. 579); American Car & Foundry Co. v. Armentraut, 214 Ill. 509 (73 N. E. Repr. 766); Narramore v. Cleveland, etc., Ry. Co., 96 Fed. Repr. 298.

      William F. Brennan, for George Stehle, Sr.
    The jury, having found a verdict in favor of the injured boy, should have found a verdict in favor of the father, because the right of each to recover was based upon the same law and facts.
    No authority has been found to support appellee’s excuse for its failure to comply with the act; the excuse is so poor that it has never been seriously raised. Surely, it is no defense for a breach of a clear and positive law that an officer of the law told the offender that he could commit the violation: Pitcher v. Lennon, 12 App. Div. 356.
   Opinion bt

Mr. Justice Stewart,

When this case was before us in 220 Pa. 617, the judgment was reversed because the court below in its instructions had failed to give effect to the Act of May 2, 1905, P. L. 352, regulating the employment of children in industrial establishments. The second section of this act in express terms makes it unlawful to employ any child under fourteen years of age, in any “establishment” as defined in the act. It was not disputed then, nor is it now, that the plaintiff was under fourteen years of age, and that the place where he was employed, and where he received his injuries, was such an establishment as the act contemplates. In the opinion delivered by our Brother Elkin, it was held that if the plaintiff’s injury “resulted by reason of the employment prohibited by law, there can and should be a recovery in the case.” On the second trial the court was asked to instruct specifically in accordance with the view here expressed. The plaintiff's twelfth point was as follows, “If the jury find from the evidence that the injuries to the boy, George Stehle, resulted by reason of his employment, prohibited by law, there can and should be a recovery in this case, and the verdict should be for the plaintiff.” The point was affirmed without qualification. It is now insisted that the trial judge should have qualified it, by explaining to the jury that the mére employment of the plaintiff could not be regarded as the cause of the injury received, if the boy was in no way engaged in the duties of his employment at the time, or if the injury was sustained in consequence of the boy’s own inadvertence. The plaintiff was injured in attempting to clean a pipe in which there was a rapidly revolving wheel. By means of this pipe and wheel the loose materials which resulted from the mechanical operation in the polishing room were carried by force of suction without the building. Plaintiff inserted his hand in a hole in the intake pipe some ten inches from the wheel; the suction drew it against the wheel, and both hand and arm were lacerated and broken in consequence. The effort on part of the defense was to show that not only cleaning the pipe through this hole was no part of plaintiff’s duty, but that he had been specially warned not to attempt it, and much evidence was offered and admitted on this branch of the case. Let it be that these were the established and admitted facts. That they would be conclusive against an adult’s right of recovery is unquestioned; but we are not dealing here with the case of an adult. The plaintiff is within a class of persons whom the law seeks to protect in the matter of their employment, because as a rule they are not able to adequately protect themselves. There can be no doubt that one of the chief purposes of the law in forbidding their employment in industrial establishments, was to prevent their exposure to the danger, of personal injury from the machinery used therein. If the danger in their case were only such as the adult is exposed to, there would be little justification for the law. It contemplates a special danger to persons of this class in connection with such employment, because of the characteristics incident to the immaturity of youth — -imprudence, lack of judgment, heedless curiosity and playfulness — and so it makes their employment unlawful. When a child has been employed in violation of law and is injured in the place where he is employed, to allow the employer to escape liability because the injury resulted from the imprudence or negligence of the child, would be to defeat the purpose of the law and render it absolutely futile. It was because a child under fourteen years of age is likely to be imprudent and negligent, and is therefore exposed to greater danger to himself and others as well, that his employment in industrial establishments is forbidden. So it is never a question of risk of employment or. of contributory negligence. The fact of plaintiff’s employment in an industrial establishment, was in itself sufficient evidence to warrant an inference of the defendant’s negligence, regardless of the nature and character of the work assigned him. With defendant’s negligence established, but one question remained — was this negligence of the defendant the proximate cause of the plaintiff’s injury? It was, if incidental to the employment in a way that showed causal connection. Clearly the accident would not have happened but for plaintiff’s illegal employment. If it happened immediately and directly because the boy did something in a negligent manner which he was not ordered to do, such circumstance cannot be considered the proximate cause, since it was the danger of just such occurrences through indiscretion that moved the legislature to forbid the employment of children, and the defendant was bound to have respect to this danger and not set the law at defiance. If the negligent act of the defendant in employing the plaintiff induced or offered opportunity for the subsequent act of the latter, and if his act was of a character common to youthful indiscretion, not only would causal connection be shown, but the law would refer the injury to the original wrong as its natural and probable cause, notwithstanding the intervening agency between that wrong and the injury. It is the settled doctrine of orneases, that where the circumstance of event which concurs with the negligent act in causing the injury might reasonably have been foreseen as likely to occur under the circumstances, the person guilty of such negligent act is.liable for the resulting injury. The rule is thus stated in Cooley on Torts, 76, “If the original act was wrongful and would naturally according to the course of events, prove injurious to some others, and result, and does actually result in injury, through the intervention of causes not wrongful, the injury shall be referred to the wrongful cause, passing through those that were innocent.”' It was for the jury here to find the proximate cause. No special instructions were asked for on the subject; but following the light they had the jury found it to be the employment of the plaintiff. There are other assignments of error which present the same question only in different form. These do not call for separate consideration. All are overruled for the reasons stated. Nor do we deem it necessary to discuss at length the question raised as to the constitutionality of the act of May 2, 1905. Its constitutionality is challenged on the ground that the title of the act does not give notice of its several provisions, these relating to several distinct subjects. So far as regards sec. 2 of the act — ■ and this is the only part here under consideration — the title contains clear and distinct notice of the subject of the enactment. It recites that it is an act to regulate the employment in all kinds of industrial establishments of women and children employed — “ by regulating the age at which minors can be employed,” etc. A fuller or more direct statement of the subject could only be made by introducing the section itself into the title. The assignments of error are overruled and the judgment in favor of the minor plaintiff is affirmed.

The father, George Stehle, was plaintiff also, in his own right. The result in his case was a verdict for the defendant. The record discloses no facts or circumstances peculiar to the father which can justify this conflicting finding. The evidence was the same in both cases, and the same law applies to each. It follows that if the son was entitled to recover upon the law and the evidence, so too was the father. We make no attempt to explain the surprising result. There was manifest error in the charge of the court which might well have operated to the common prejudice of the plaintiffs, but it afforded no ground for discriminating between them. It appeared in evidence that the minor had been in defendant’s employ prior to May 2, 1905, and had so continued until October of that year when he was laid off. He resumed his employment in November and continued working until injured. Defendant’s superintendent was permitted, against objection, to testify that after the passage of the act of May 2, 1905, defendant’s establishment was visited by a deputy factory inspector, who, upon being informed that this minor, then in defendant’s employ, was under fourteen years of age, advised the superintendent that inasmuch as the boy had been employed prior to the passage of the act he was not within its terms, and that this officer approved of his employment. This evidence was offered and admitted as tending to excuse the employment of the minor. Respecting this feature of the case the learned judge charged as follows: “So when he (the boy) returned in November, doubtless these employers remembered their conversation with the inspector, that this certificate of employment received by them prior to the passage of the act, was sufficient to warrant their employing it. Therefore the question here for you to decide, notwithstanding the fact of the employment under the age of fourteen years is prima facie negligence, whether these employers did everything that a reasonably cautious person would have done under the circumstances, in order to comply with the law, and if you believe, that they behaved as reasonably cautious persons in taking the advice and following the instructions, if you think it was given by the inspector — if you believe that that is what a reasonably cautious person would have done, then it is not negligence, and they are entitled to recover. That is my view of the law.” This instruction, which is assigned for error, went wide of the true mark. It is elementary that every man is presumed to know the statute law and to construe it aright, and when one violates it through ignorance, he must abide the consequence. He may not aver in a court of justice that he has mistaken the law, this being a plea which no court of justice is at liberty to receive. Neither factory inspector nor anybody else could absolve the defendant from his statutory liability which in this case was to refuse employment to the boy. It is never a question for a jury whether one violating a positive statute exercised reasonable care and caution in so doing. This assignment of error is sustained and the judgment for the defendant is reversed with a venire de novo.


text:
    Carter’s Estate.

      Will — Partition—Power of sale — Conversion—Trusts and trustees.

    1. Where a fee simple estate is vested in a legatee upon his reaching the age of twenty-one years such devisee on reaching his majority is entitled to partition, although the testator directed the trustee to divide the estate into several parts, and for the purpose of such division gave full power and authority to sell the real estate.
    2. The right to demand partition is not taken away by the fact that the will under which the person seeking partition claims the land directs the executor to make division of the estate.
    Argued May 4,1909.
    Appeal, No. 365, Jan. T., 1908, by the Fidelity Insurance, Trust & Safe Deposit Company, Trustee, from decree of O. C. Phila. Co., Oct. T., 1888, No. 401, awarding partition in Estate of Charles Carter, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for partition. Before Penrose, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was decree awarding partition.

      John G. Johnson, with him Maurice Bower Saul, for appellant.
    The will of Charles Carter, having directed in positive terms a division of his estate by the trustee and vesting in it a discretion as to the time of its division, partition under the statutes is precluded: Keim’s Est., 201 Pa. 609; Klohs v. Reifsnyder, 61 Pa. 240; Williams’s App., 73 Pa. 249; Baum’s App., 4 Penny. 25; Naglee’s Est., 52 Pa. 154; Rawle’s App., 119 Pa. 100; Sheridan v. Sheridan, 136 Pa. 14; Caldwell v. Snyder, 178 Pa. 420.
    June 22, 1909:
    An equitable conversion of the realty into personalty results under the will of Charles Carter, barring proceedings in partition: Reifsnyder’s Est., 214 Pa. 637; Lehman’s App., 105 Pa. 128; Dundas’s App., 64 Pa. 325; Severn’s Est., 211 Pa. 65.

      John J. McDevitt, Jr., with him Phelan Beale, for appellee.
    Unless there be an imperative direction to sell,, independent of discretion, there is no fictitious conversion: Peterson’s Appeal, 88 Pa. 397; Perot’s App., 102 Pa. 235; Yerkes v. Yerkes, 200 Pa. 419; Sauerbier’s Est., 202 Pa. 187; Henry v. McCloskey, 9 Watts, 145; Glentworth’s Est., 221 Pa. 329; Rawle’s App., 119 Pa. 100.
   Opinion by

Mr. Justice Mestrezat,

The learned court below correctly disposed of this case and the authorities cited in its opinion fully warranted the court in awarding partition. The testator devised and bequeathed the residue of his estate, real and personal, to the Fidelity Insurance, Trust & Safe Deposit Company in trust to divide it into eight equal parts, and to hold each of said parts in trust to collect the rents of the real estate and to invest and keep invested the personal estate and collect the income thereof, and after paying the taxes, charges and expenses of the execution of the trust, to pay the balance of the income from each of the several parts in quarterly payments to each of the respective devisees and legatees named in the will for and during the term of his natural life, except the net income from one part thereof which was to be held for two of the testator’s grandchildren during their respective minorities, “and when my said two grandchildren shall respectively attain the age of twenty-one years, then in trust to pay, assign and convey to each of them the one-half part of the said one equal eighth part of my said residuary estate, so as aforesaid directed to be held in trust for them respectively, and the accumulation of the income thereof.” Both of these children have attained the age of twenty-one years, and one of them, Mrs. Renshaw, presented this petition for partition. Having attained their majority, the title to the real estate vested in the two grandchildren absolutely, and they now hold a fee simple title to the undivided one-eighth part of the real estate of their grandfather. If no other provision of the will prevented partition, it is clear that either or both of the grandchildren would be entitled to have an inquest awarded. It is claimed, however, that the right to demand partition is taken away by the fact that the will directs the executor to make division of the estate. This position, however, is not tenable and is directly in conflict with the decision of this court in Rawle’s Appeal, 119 Pa. 100. There the testator directed his executors to divide the residuum of his estate into five parts, one of which he gave to each of his five children, providing that on the death of any of his children, the children of the deceased child should receive its parent’s share. This court held that “the alienee of the interest of a minor child of a deceased child of the testator in the land devised to its mother, was entitled to have partition in the orphans’ court, notwithstanding the directions to the executors to divide the estate into parts.” The correctness of this ruling was recognized in the more recent case of Caldwell v. Snyder, 178 Pa. 420.

Another reason assigned by the appellant why the petitioner is not entitled to partition is that an equitable conversion of the realty into personalty results under the will of the testator which bars proceedings in partition. After devising his estate in trust and directing it to be divided into eight equal parts and held as above stated, the testator’s will provides as follows : “ In order to enable the said Fidelity Insurance, Trust and Safe Deposit Company, trustee of my said residuary estate, to make a division of the same into eight equal parts, as I have hereinbefore directed and to manage the same after division, I authorize and empower the said company from time to time to extinguish any of my ground rents and to make sales of my real estate at public or private sale at sueh times and upon such terms as to it shall seem proper.” The appellant relies upon this clause of the will to work an equitable conversion of the testator’s real estate. The subject of equitable conversion of realty into personalty and when it is created have been very fully discussed in many of our cases, the more recent of which are Yerkes v. Yerkes, 200 Pa. 419; Sauerbier’s Estate, 202 Pa. 187; Painter v. Painter, 220 Pa. 82. Here, there has been no actual conversion of the testator’s real estate, and an examination of these authorities will show that there has been no constructive conversion. The testator first places his real and personal estate in the hands of a trustee and directs its division into eight equal parts, each of said parts to be held for a designated devisee and legatee. This, of course, did not create an equitable conversion of the realty. Having directed this division of the estate, he conferred a power of sale upon the trustee company for the special purpose of enabling it to divide the estate or to manage it after a division was made. This clearly appears from the language he used in conferring the power. He says: “In order to enable” the trustee “to make a division of the same into eight equal parts .... and to manage the same after division, I authorize and empower the said company .... to make sales of my real estate.” There was, therefore, no imperative direction to sell, but only a discretionary power conferred in order to enable the trustee to make a division of the estate and to manage it after such division as directed in the will. The trustee was not authorized to make a sale if the real estate could be divided and managed as provided in the will. A sale was contemplated only as a means for dividing and managing the property. If such necessity did not arise, the real estate as such went to the parties in the proportions named in the will. Throughout the will, there is a manifest intention to distinguish between the real and personal estate, and there is an entire absence of any purpose on the part of the testator to create a fund out of the proceeds of both estates and dispose of it as money. There was no actual conversion of the testator’s real estate, and under our authorities, cited above, there was no constructive conversion.

Sheridan v. Sheridan, 136 Pa. 14, is similar to the case at bar. The testatrix divided her estate into four shares, bequeathing and devising one share to each of her three children for life with a limitation over, and the fourth share to her grandchildren, to come into their possession at majority, respectively, and until then to be held in trust. The will authorized the executors to sell the real and personal property, “if they find it necessary to do so in order to make a fair and equitable division of my estate.” One of the interested parties filed a bill in the common pleas praying for partition of the real estate. The bill was sustained, and it was held that as each grandchild became of full age the trust terminated, and he became seized of such an interest in the real estate as enabled him to maintain partition, notwithstanding the unexercised naked power to sell for the purposes of division.

The assignments of error are overruled and the decree of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Turner, Appellant, v. Baker.

      Principal and agent — Real estate broker — Commissions—Contract— Findings of fact.

    1. If an owner of real estate chooses to make a contract with a broker in which it is stipulated that the broker shall have the exclusive right to sell the property within a specified time and that he shall be entitled to receive a certain commission if a sale be made within the time designated, no matter who makes it, he is bound by its terms and cannot be relieved from a bad bargain because his agreement may have been foolish or improvident; but a mere appointment of a broker as sole agent to sell real estate at a stipulated price upon a stated commission does not entitle the broker to a commission, if the owner himself sells the real estate during the term of the broker’s employment, and the broker did not produce a purchaser during the term of the contract ready, able and willing to purchase the property.
    2. In an action by a broker to recover commissions on an alleged sale of real estate, where the case is tried by the court without a jury, a finding of fact by the court based on sufficient evidence that the broker did not produce a purchaser willing to comply with the owner’s terms, will not be reversed by the appellate court in the absence of manifest error.
    3. Where an owner of real estate agrees with a broker to pay him commissions if he sells the property for $30,000 in cash, the broker does not comply with the terms of his employment by producing a purchaser who is willing to pay $15,000 in cash and give a mortgage to secure the balance, especially when the negotiations to modify the terms of the contract did not ripen into an executed agreement between the parties.
    Argued May 10, 1909.
    Appeal, No. 333, Jan. T., 1908, by plaintiff, from judgment of C. P. Union Co., May T., 1906, No. 56, for defendant on case tried by the court without a jury of Charles W. Turner v. W. N. Baker.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover commissions on sale of real estate.
    The case was tried by McClure, P. J., without a jury under the Act of April 22, 1874, P. L. 108.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant.

      Andrew A. Leiser, with him Andrew A. Leiser, Jr., for appellant.
    The owner is liable for commissions on sales made by himself, when the broker has the exclusive right to sell: Levy v. Rothe, 39 N. Y. Supp. 1057; Moses v. Bierling, 31 N. Y. 462; Metcalf v. Kent, 104 Iowa, 487 (73 N. W. Repr. 1037).
    The owner is liable for commissions on sales made by himself within the time limit fixed by the contract with his broker: Owens v. Wehrle, 14 Pa. Superior Ct. 536; Reed v. Reed, 82 Pa. 420; Showaker v. Kelly, 21 Pa. Superior Ct. 390; Crane v. McCormick, 92 Cal. 176 (28 Pac. Repr. 222); Gregory v. Bonney, 135 Cal. 589 (67 Pac. Repr. 1038); Sylvester v. Johnson, 110 Tenn. 392 (75 S. W. Repr. 923); Green v. Cole, 127 Mo. 587 (30 S. W. Repr. 135); Kimmell v. Skelly, 130 Cal. 555 (62 Pac. Repr. 1067).
    The plaintiff having produced a purchaser, ready, able and willing to buy defendant’s hotel within the life of his contract, and defendant-having refused to sell to such person because he had sold to another party, the plaintiff was entitled to commissions on the sale so made, or to damages for the breach of the contract, and the measure of damages is the amount of the commissions under the contract.
    June 22, 1909:

      William R. Follmer, for appellee.
    It is a fact, and the court was right in finding, that the plaintiff did not have a purchaser ready and willing to purchase upon terms satisfactory to the defendant, or upon the terms of the agreement as shown by the plaintiff, and that the plaintiff, not having produced such a purchaser, has not earned his commissions.
    The court found that the terms upon which Mr. Turner was authorized to make the sale was $30,000 cash to Baker, and we submit that this being the case, he could claim no commissions even if he had found a purchaser, ready, willing and able to buy the property by paying $15,000 cash and giving Mr. Baker a mortgage for $15,000.
    He would be entitled to no commission nor to any compensation for services in securing or seeking a purchaser on terms forbidden by his principal: Keys v. Johnson, 68 Pa. 42; Hartley v. Anderson, 150 Pa. 391; Kifer v. Yoder, 198 Pa. 308; Bradford v. Menard, 28 N. W. Repr. 248; Smith v. McCann, 205 Pa. 57.
    A party having employed a broker to sell real estate may, notwithstanding, negotiate himself, and if he does so without any agency of the broker, he is not liable to the latter for a commission: Stamets v. Deniston, 193 Pa. 548; McMahan v. Burns, 216 Pa. 448; Stewart v. Murray, 92 Ind. 543; Waterman v. Boltinghouse, 82 Cal. 659 (23 Pac. Repr. 195); Doonan v. Ives, 73 Ga. 295; Ingold v. Symonds, 99 N. W. Repr. 713.
   Opinion by

Mr. Justice Elkin,

It is contended that appellant was constituted the exclusive agent of appellee to sell his hotel property and that any sale made while the contract of exclusive agency remained in force, either through the effosts of the broker or by the principal, entitles the broker to recover his commission although he was not instrumental in effecting the sale. In some jurisdictions the rule does seem to be laid down as broadly as above stated, but this is not the law in Pennsylvania. It is true in some of our cases, where the parties had executed a contract in which it was expressly covenanted that the broker should be paid a stipulated commission in the event qf a sale within the time specified no matter whether it was effected by the broker, or by the principal, or by any other person, it was held that the commission could be recovered when the sale was made and that it was immaterial who made it. These cases announce no new rule of law. They are simply declaratory of a fundamental maxim which is that parties are bound by the terms of their own contract. If an owner of real estate chooses to make a contract with a broker in which it is stipulated that the broker shall have the exclusive right to sell the property within a specified time and that he shall be entitled receive a certain commission if a sale be made within the (time designated, no matter who makes it, he is bound by its (terms and cannot be relieved from a bad bargain because his agreement may have been foolish or improvident. Our cases have gone thus far and no farther. In the present case the contract contains no such provision, and hence the rule above stated has no application. The appellee did constitute appellant his sole agent to sell a hotel property at a stipulated price and agreed to pay him a commission for his services. He further agreed that the broker should have the exclusive right to dispose of the property and that written notice should be given ten days before the withdrawal of the business. The broker did not make a sale, the principal did. The principal did not give the ten days’ withdrawal notice as required by the contract which the broker insists was still in force when the sale was made, by the principal. The right to recover the commission under these circumstances is asserted on two grounds, first, that a sale made by any person while the contract remained in force entitled the broker to the stipulated commission, and, second, that the commission was earned by the broker producing a purchaser who was ready, able and willing to buy the property. The first position cannot be sustained for the reasons hereinbefore stated. The second contention depends upon the facts. If in point of fact the broker had produced a purchaser ready, able and willing to buy upon the terms of the contract, and while it remained in force, he would clearly be entitled to his commissions under the rule of all the authorities. This is the pinch of the case and it is almost entirely a question 'of fact. The learned court below found as a fact and stated as a conclusion of law that such a purchaser had not been produced by appellant and that his right to recover could not prevail. Unless there is manifest error in this finding of fact the judgment must be affirmed. In this connection it should be borne in mind that this is an action of assumpsit brought in the common pleas and regularly triable before a jury. The parties by agreement waived trial by jury and the case was heard before the court below under the act of 1874. In such cases the findings of the court take the place of the verdict of a jury and come before an appellate court with the same force and effect. The twelfth and twenty-first requests for findings of fact submitted by defendant were affirmed, and while the testimony in some respects may have been contradictory it was the duty of the court to consider all of it, reconcile it if possible, and if this could not be done, then to make such findings as the weight of the evidence warranted. This was done with the result that the court found as a fact that appellant had not secured a purchaser for the property upon the terms stipulated in the contract. The evidence was sufficient to sustain this finding and certainly there is no such manifest error as to justify a reversal. In his declaration the plaintiff averred that the price at which the property was to be sold was $30,000, $15,000 of which was to be paid in cash and the remainder to be secured by a lien upon the. property. The authority to sell did not contain the latter provisions and the burden was on appellant to prove such contract if it existed. The written contract offered in evidence by the plaintiff provides that the property shall be sold for $30,000, which under our cases means a cash payment when no other terms are specified. The plaintiff, therefore, by introducing the written contract in evidence, made out a prima facie case showing his authority to sell the property for $30,000 cash. He did not undertake to show that he had a purchaser ready, able and willing to pay this price in cash for the property, but did introduce testimony showing that there had been considerable correspondence looking to an arrangement whereby $15,000 would be paid in cash and a mortgage given to secure the balance. These negotiations did not ripen'into a contract, nor was anything definitely agreed upon as to terms of payment or sale of the property. The evidence was not sufficient to show that the terms of the written contract were varied in respect to payment, nor that any purchaser had been produced by appellant to purchase upon the terms stipulated in the contract. Under these circumstances, we think the learned court below was fully justified in reaching the conclusion that a case had not been made out and in directing a judgment for defendant.

Judgment affirmed.