text:
    Maggini, Appellant, v. Jones.

      Trusts and trustees — Laches—Evidence—Equity.
    On a bill in equity to enforce a trust it was alleged that the defendant’s testator twenty-eight years before the filing of the bill bought in property of a married woman, mother of the plaintiffs, under an agreement by which he was to pay plaintiff’s father $3,000 per year, and after his death $50,000 to his family. Over a year after the sale, the plaintiff’s father and mother executed for a consideration of about $2,500, a quitclaim deed to the defendant’s testator for the property in question. Plaintiff’s father during his lifetime never made any demand as of right against the testator of defendants, although he did appeal to his generosity for help. The bill was not filed until over two years after testator’s death. Held, that the bill involved a stale claim, and was properly dismissed.
    Argued Oct. 30, 1908.
    Appeal, No. 218, Oct. T., 1908, by plaintiffs, from decree of C. P. No. 3, Allegheny Co. Feb. T., 1906, No. 736, dismissing bill in equity in case of Robert S. Maggini, trustee of the estate of John H. McMasters et al., v. Benjamin F. Jones et al., executors and trustees of the last will and testament of Benjamin F. Jones, Jr., deceased, et al.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a trust.
    Evans, J., filed the following opinion:
    The plaintiff files, this bill, alleging that at the time of the death of Benjamin F. Jones he was the trustee of a certain fund, amounting to about $50,000, for the benefit of John H. McMasters and his children, and that that trust fund came into the hands of the defendant, and prays that the court declare the trust and compel the defendants to account.
    FINDINGS OF FACT.
    1. Prior to January 5,1876, John H. McMasters was the owner of a certain lot of land situate in the city of Pittsburg, fronting on Liberty street and known as the Seventh Avenue Hotel property. On that date he, with his wife, Frances McMasters, executed a deed to David M. McMasters, the consideration being $1.00, who, for the same consideration, on January 25,1876, executed a deed to Frances McMasters, the wife of John H. McMasters. This conveyance, being a voluntary conveyance, passed no title as affecting the creditors of JohnH. McMasters.
    2. In May of 1877, John H. McMasters was largely indebted; a petition to have him declared a bankrupt had been presented to the district court of the United States; there were several mortgages against this Seventh Avenue Hotel property, and among others a mortgage to Moses and A. C. Silverman.
    3. Benjamin F. Jones was the uncle, by marriage, of John H. McMasters, and in May, 1877, he met John H. McMasters at the place of business of the Silvermans, and there were present on that occasion John H. McMasters, Moses and A. C. Silverman, John M. Osborne, Dr. D. M. McMasters and Benjamin F. Jones. At this interview B. F. Jones proposed to McMasters that if the bankruptcy proceedings 'were dismissed and the Seventh Avenue Hotel property brought to sheriff’s sale he would buy it at sheriff’s sale and hold the difference between the amount that the property cost him and $125,000 in trust for McMasters and his family, paying to McMasters the income at six per cent during his life and after his death to.his family.
    4. Following this, the bankruptcy proceedings were dismissed, the mortgage of the Silvermans foreclosed and assigned to Benjamin F. Jones, the property offered at sheriff’s sale and bid in by Jones, he taking a deed from the sheriff, acknowledged October 13, 1877.
    5. The total cost of the property to Jones up to and including the costs at the sheriff’s sale was a little over $75,000.
    6. A short time after the sheriff’s sale B. F. Jones and David M. McMasters, brother of John H. McMasters, met in the Seventh Avenue Hotel, and B. F. Jones made to David M. McMasters the following statement:
    “You know that I had an agreement with John to do certain things, to put aside certain money for him and his family; now, since that I have had Dr. Hostetter and Mr. Anderson go over this property and Dr. Hostetter tells me he would not take it for the mortgage that is on it; he said, ‘Under all the circumstances I do not think that I ought to be held up to the agreement that I made with John.’ ”
    7. This conversation was reported by Dr. McMasters to John H. McMasters. On several occasions within the next ten years B. F. Jones denied any obligation on his part to McMasters or his family, and these acts of Jones repudiating any liability were reported to McMasters.
    8. John H.' McMasters and Frances H. McMasters, his wife, by a quitclaim deed dated November 7,1877, and acknowledged December 4, of the same year, in consideration of $2,458.36, quitclaimed and released to B. F. Jones their interest in the property which we have designated as the Seventh Avenue Hotel property.
    9. Benjamin F. Jones died testate on May 19, 1902.
    CONC31i3JSIONS OF LAW.
    1. This is a stale claim. This bill was filed twenty-eight and one-half years after the alleged trust was created, and during that time, when, if the trust was in existence, B. F. Jones should have paid to McMasters something in the neighborhood of $3,000 a year. While McMasters was in serious pecuniary difficulties all that time he never demanded the fulfillment of these trust obligations on the part of Jones, and in the face of the repudiation on the part of Jones on many occasions of any existence of such a trust no steps were taken to have the court declare a trust and enforce its provisions until something over two years after Jones’ death. This of itself would cause the court to hesitate and require clear and convincing proof that the trust was in existence at the time of the death of B. F. Jones.
    2. In' 1877, at the time that Jones proposed to buy this property, and hold the difference between what he should pay for it and $125,000 in trust for McMasters and his family, McMasters was not the owner of the hotel property, but as against him and as against all the world except McMasters’ creditors the land was the property of Mrs. McMasters. There is no evidence that she was a party to the proceedings by which Jones was to buy in the property, and therefore it is questionable whether a trust could be created in favor of McMasters out of the fund arising out of the property of a stranger. But Jones repudiated the trust immediately after the purchase of the property, and following that we have the significant transaction between McMasters and wife and Jones, a quitclaim deed, for a valuable consideration, of all the right, title and interest of McMasters and wife to Jones. At the time that that deed was given neither McMasters nor his wife had any right, title or interest in this property, unless it should be the interest in the fund arising from this agreement.
    3. The giving of the quitclaim deed by McMasters and wife, coupled with the fact that no claim was ever made by any of the McMasters of the existence of such a trust during the lifetime of Jones, and the appeal to Jones on many occasions for funds not as a matter of right, but purely as a matter of charity, and the appeal to B. F. Jones, Jr., by McMasters, by letter of November 21, 1903, in which he states, “My family is now grown up and looking after themselves, but not in any position to look after themselves and at the same time look after me,” and he asks his cousin to set aside a certain amount that he may have from the income thereof sufficient to furnish him with a living, and states, “ I make this appeal simply to your generosity,” if there was in existence a trust from which he was entitled to receive nearly $3,000 a year and from which his children at his death would receive nearly $50,000, is it reasonable to suppose that he would have written such a letter to the man from whom he had the right to demand a sum which was to him a generous income?
    Let the bill be dismissed at the cost of the plaintiff.

      Error assigned was the decree of the court.

      H. M. Scott, for appellant.

      W. B. Rodgers, with him George C. Wilson, and W. D. Evans, for appellees.
    January 4, 1909:
   Per Curiam,

The decree is affirmed on the findings of fact and the conclusions of law by the learned judge of the common pleas.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    First National Bank of Homestead, Appellant, v. Lee.

      Promissory notes — Want of consideration — Affidavit of defense.

    In an action by a bank upon a promissory note made by the defendant to Ms own. order and indorsed by Mm, an affidavit of defense is sufficient wMch avers that the note was to be held by the plaintiff’s cashier, who acted for it in the negotiations, until certain shares, of stock held by it should be transferred to the defendant and certain notes and obligations indorsed by a third party should be delivered to him; that the promise to do these things was the only consideration for the note and that, in violation of the agreement, the note was delivered by the casMer and a transfer of the stock and delivery of the notes refused by the plaintiff.

      Argued Oct. 30, 1908.
    Appeal, No. 224, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., May T., 1908, No. 434, discharging rule for judgment for want of a sufficient affidavit of defense in case of First National Bank of Homestead v. A. M. Lee.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a promissory note. Before Kennedy, P. J.
    The opinion of the Supreme Court states the case.

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

      J. Merrill Wright, with him C. W. Reamer, for appellant.

      H. R. Phillips, for appellee.
    January 4, 1909:
   Per Curiam,

This appeal is from an order discharging a rule for judgment for want of a sufficient affidavit of defense. The action was upon a note made by the defendant to his own order and indorsed by him. The facts upon which the defense is based are not set out in a clear and orderly manner, and the affidavit contains much that cannot be made a defense to a negotiable instrument; but the substance of the averments is that the note was to be held by the plaintiff's cashier, who acted for it in the negotiations, until certain shares of stock held by it should be transferred to the defendant and certain notes and obligations indorsed by a third party should be delivered to him; that the promise to do these things was the only consideration for the note and that, in violation of the agreement, the note was delivered by the cashier and a transfer of the stock and delivery of the notes refused by the plaintiff. The averment if sustained would show a want of consideration and that the plaintiff was not an innocent holder for value.

The appeal is dismissed.


author: Mr. Justice Brown,

text:
    Bernhardt v. Taylor, Appellant.

      Practice, C. P. — Affidavit of defense — Matters before the court.

    1. In disposing of a rule for judgment for want of a sufficient affidavit of defense, nothing is before the court, except the plaintiff’s statement and the defendant’s affidavit in reply to it. To these the court below is confined in determining whether the rule shall be discharged or made absolute.

      Executors and administrators — Suits against — Scire facias sur certified transcript from orphans’ court — Act of March 29, 1832, sec. 29, P. L. 190 —Defenses—Collateral attack on decree.

    2. Where, under sec. 29 of the Act of March 29,1832, P. L. 190, a certified transcript from the orphans’ court showing a balance due by an executor, administrator or guardian as ascertained by that court, is filed in the common pleas, and a scire facias is issued thereon, the amount appearing due from the transcript by the accountant, at the time of the adjudication of his account, is conclusive, unless reduced by payments after the adjudication. Payments made prior to the adjudication cannot be considered, inasmuch as the decree of the orphans’ court fixing the amount due at the time of the adjudication is conclusive and cannot be collaterally attacked in the court of common pleas.
    Argued Nov. 2, 1908.
    Appeal, No. 152, Jan. T., 1908, by defendant, from order of C. P. Huntingdon Co., Feb. T., 1908, No. 10, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lillian Bernhardt v. Isaac Taylor and Isaac Taylor, Trustee.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Scire facias sur certified transcript from the orphans-’ court. Before Shull, P. J., specially presiding.
    The defendant filed an affidavit of defense in which he set up payments to the plaintiff made prior to the date of the adjudication.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      John D. Dorris and J. F. Schock, for appellant.
    — The very record upon which the sci. fa. issued if complete would show that the amount of the lien which the sci. fa. was intended to enforce, was subject to deductions for “the advancements or payments made” to appellee on account thereof. The amount of these advancements or payments has never been judicially determined and is the very thing that is in dispute in this case between the appellee and the appellant. The orphans’ court might have determined their amount but it has not done so. Clearly, then, under these facts, any court that has jurisdiction to enforce payment of the lien has jurisdiction to determine how much of said $11,156.08 remains unpaid at the time it renders judgment in the case. The orphans' court cannot interfere with the claimant's right to proceed by sci. fa. to enforce this lien to whatever amount he is entitled to recover. Here it was not alleged that the whole balance had been paid; and for whatever balance remained, however small, the lien of the transcript remained in full force: Ashman’s Estate (No. 3), 218 Pa. 513.

      L. II. Beers and II. II. Waite,'for appellee.
    — The decree of the orphans’ court was conclusive: McPherson v. Cunliff, 11 S. & R. 422; Mussleman’s App., 65 Pa. 480; McFadden v. Geddis, 17 S. & R. 336; Forcey’s App., 106 Pa. 508; Com. v. Monongahela Bridge Co., 216 Pa. 108; Gilmore v. Rodgers, 41 Pa. 120; Dixcy v. Laning, 49 Pa. 143; Leedom v. Lombaert, 80 Pa. 381.
    The defense on a scire facias on a judgment must have arisen after the judgment was rendered: Lauer v. Ketner, 162 Pa. 265; Savage v. Everman, 70 Pa. 315; Cardesa v. Humes, 5 S. & R. 65; Royer v. Myers, 15 Pa. 87; Burd v. McGregor, 2 Grant, 353; Eichelberger v. Smyser, 8 Watts, 181.
    January 4, 1909:
   Opinion by

Mr. Justice Brown,

In disposing of a rule for judgment for want of a sufficient affidavit of defense nothing is before the court except the plaintiff’s statement and the defendant’s affidavit in reply to it. To these the court below was confined in determining whether the rule for judgment in this case should be discharged or made absolute: Allegheny City v. McCaffrey, 131 Pa. 137; Columbia National Bank v. Dunn, 207 Pa. 548; Scott Manufacturing Co. v. Morgan, 217 Pa. 367. Instead of confining itself to what appeared in the record before it, the court, in its opinion making absolute the rule for judgment, discussed matters which did not appear either in the certified transcript, upon which the writ of scire facias' was issued, nor in the affidavit of defense, and this digression has been kept up by counsel for appellant in their history of the case and printed argument.

By sec. 29 of the Act of March 29, 1832, P. L. 190, a certified transcript from the orphans’ court, showing a balance due by an executor, administrator or guardian as ascertained by that court, when filed in the court of common pleas of the county, becomes a lien on the estate of the accountant and upon it an action may be brought or a scire facias issued by any person interested for the recovery of the amount due him. When such certified transcript is filed in the common pleas, and an action is there instituted upon it, the amount appearing due from it by the accountant at the time of the adjudication of his account is conclusive, unless reduced by payments after the adjudication: Royer v. Myers, 15 Pa. 87; Burd’s Executors v. McGregor’s Administrator, 2 Grant, 353. The common pleas may not modify in any manner the amount ascertained by the orphans’ court to be due from the accountant at the time of the adjudication. Over the account of an executor, administrator or guardian, and in ascertaining the amount to be due from him to a distributee, the jurisdiction of the orphans’ court is exclusive, and after that court has ascertained the amount due no defense but payment is available in an action brought against the accountant under the provisions of the act of March 29, 1832. The adjudication by the orphans’ court of the amount due is not tó be attacked in the common pleas. “By the act of the 29th of March, 1832, the orphans’ court is declared to be a court of record, with all the qualities and incidents of a court of record at common law. Matters within their jurisdiction cannot-be reversed or avoided collaterally. . . . Payments made by the guardian would be a defense to a suit to enforce the decree, although every previous transaction between the parties would be concluded by the decree:” Eichelberger v. Smyser, 8 Watts, 181.

From the certified transcript from the orphans’ court filed in the common pleas in this case it appeared that, by an adjudication of the seventh account of Isaac Taylor as trustee in the estate of Mary Jane Ashman, deceased, confirmed absolutely by the orphans’ court of Huntingdon county on June 30,1906, there was due by him on that day to the appellee the sum of $11,156.08. This was all the court had before it as to the adjudication in the orphans’ court. In the scire facias issued on this transcript it was conclusive in the common pleas that on June 30, 1906, there was due to the appellee from the appellant the sum stated, and but for the credits given him by her that sum, less payments made since the adjudication, would have been the amount for which the court would have been compelled to direct judgment to be entered against him. The sole defense set up is that the appellant is entitled to credits for certain payments made by him to the appellee between September 6, 1897, and March 1, 1904. Nothing else appears in the affidavit of defense. But these credits claimed are all for payments alleged to have been made before the adjudication by the orphans’ court. The appellee has agreed that the amount awarded her by the adjudication shall be reduced by the sum of $9,301.09, and beyond this there can be no further credits allowed, except for payments made since the adjudication. Every previous transaction between the parties was concluded by it. If the balance as ascertained by the orphans’ court to have been due by the appellant is incorrect, it is either his fault or misfortune that a proper correction was not made by that court before this proceeding was instituted and judgment against him asked for in the common pleas. That court could give him no relief from the decree of the other court.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Dorris’s Estate.

      Will — Executors and administrators — Allowance for household expenses —Discretion of orphans’ court.

    Where a testator directs an allowance out of income for household expenses of his family, an allowance of a certain amount made by the orphans’ court in the excercise of its discretionary power will not be reversed where it appears that the allowance was made after depositions had been taken, and that the evidence tended to show that the household consisted of the same persons as those who lived with the testator in his lifetime, that the amount allowed was less than that spent by the testator, that the widow was an invalid and required a nurse, that the amount was less than the total income of the estate, and was a fair one under all the circumstances.
    Argued Nov. 2, 1908.
    Appeal, No. 167, Jan. T., 1908, by John D. Dorris, Executor, from decree of O. C. Huntingdon Co., making allowance for household expenses in Estate of William Dorris, deceased,
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition for allowance for household expenses. Before Shull, P. J., specially presiding.
    The court entered a decree directing that the executors pay from the estate the sum of $3,000 on account of household expenses incurred from January 1, 1907, to January 1, 1908, and for a like purpose the sum of $1,500 on July 1,1908; and further, the sum of $300 upon July 30, 1908, and monthly thereafter, up to and including December 30, 1908. After the completion of said period either party may make application to the court to diminish, increase or continue, the award for future household expenses.

      Error assigned was decree of the court.

      W. M. Henderson, with him Lyman D. Gilbert, for appellant.

      H. H. Waite, with him 17m. Wallace Chisolm, for appellee.

      January 4, 1909:
   Opinion by

Mr. Justice Potter,

Julia M. Dorris, widow of William Dorris, filed a petition in the orphans’ court of Huntingdon county, representing that William Dorris, died September 2,1904, leaving to survive him a widow, the petitioner, and five children; three of the children resided with him at the time of his death and continued thereafter to reside with his widow in the family residence; that by his will William Dorris provided as follows: “I hereby direct my executors shall retain from the income of my estate a sum sufficient to pay household expenses, taxes, repairs, etc., during the life of my wife, and the residue to be distributed monthly or quarterly as my heirs may desire, — one-third to my wife during her life; one-tenth to my son William W. Dorris during his life, and the residue to be paid in equal portions to my son John D. Dorris and to each of my daughters, Anne, Julia and Mary, intermarried with C. Herbert Miller, and their, and each of their heirs and assigns;” that since the death of William Dorris the petitioner had made demand upon his executors for $4,000 per annum for the purposes designated i'n the clause quoted; but that they had failed to pay the sum demanded or fix any sum as allowance to the petitioner for such purposes; that she ought to be allowed $4,000 annually out of the income of the estate under paragraph four of her husband’s will, the current household expenses, taxes, repairs, etc., amounting annually to more than that sum; and that the income of the estate was sufficient to justify the payment of that amount to her annually. Petitioner therefore prayed the court to fix the amount of her allowance at $4,000 a year.

John D. Dorris, one of the executors, filed an answer alleging that the income of the estate was not sufficient to pay the petitioner the sum of $4,000 annually, and averring that the sum of $2,000 would, under the circumstances, be a liberal allowance, for the household expenses of the petitioner. Depositions were taken, and upon the hearing, the court below found that the testimony in behalf of the petitioner tended to show “that the household is comprised of the same members that were supported and maintained by decedent in his lifetime; that Julia M. Dorris, the widow, is an invalid, requiring constantly the services of a nurse and frequent attendance of a physician. That for the year December 5,1906, to December 5, 1907, there had been expended for household and current expenses sums aggregating $3,300; which dicl not include clothing, nursing and medical bills, and that the sum expended generally upon the household was less than the amount expended for the maintenance of the household during the lifetime of the testator.” As a conclusion following upon the facts found, the court made a temporary order that the executors should £>ay to Julia M. Dorris, widow, the sum of $3,000 on account of household expenses incurred during the year 1907, and at the same rate, during the first six months of 1908, and the sum of $300 per month during the remainder of the year 1908, after which period, either party was authorized to apply to the court for a change in the amount of the allowance. John D. Dorris, one of the executors, has appealed from the order upon the ground that the income of the estate was not sufficient for the payment of the amounts awarded.

We are satisfied that the court below was right in holding that the testator in his will considered the royalties upon his coal lands as income. In fact the correctness of this view is not questioned. It is also clear that the court did not intend its order to go beyond the limits of the income. This appears from the opinion in which it is said, “The will does not contemplate fixing a charge by the executors upon any of testator’s property. It is true that the widow is the primary object of the testator’s bounty, but this bounty must come from the source designated by the testator, that is, ‘from the income of my estate,’ and having elected to take under the will, she cannot take against it to the detriment or impoverishing of the corpus. ... At this stage of the case without an account presented showing the status of the estate since the judgment of $12,500 was obtained, [it] leaves us without a proper compass to ascertain our bearing or knowledge of the port to which we must sail in search of safety.”

It will be remembered that the order was temporary, being intended only to bridge over present difficulties, and provide for the needs of the widow during the two years mentioned. The testimony as to the precise amount of available income, did not make the situation clear to the court below, and we certainly have no further light upon that subject. The question to be determined was one resting largely in the sound discretion of the orphans’ court, and we have not been convinced that there was any abuse of that discretion. It appears from the evidence that the estate recovered against the Morris-dale Coal Company, a judgment for $12,500, of which the appellee claims that at least two-thirds, or over $8,000, was for royalties accruing after the death of testator, and therefore to be considered as income. This was to be paid in monthly payments of $500 each, for which notes were to be given. In addition, under a new lease of a portion of the coal lands, a minimum annual royalty of $3,200 was to be paid. The aggregate amount allowed to the widow under the order of the court below was $6,300. for the two years, and this was apparently well within the amount of the income accruing during that time. It is urged upon the other hand, that under the settlement made with the widow by the estate, all the money received from the coal company, less expenses, and also one-fourth of the future coal royalties, were to be applied in liquidation of the judgment of the widow against the estate. But it was expressly stipulated in the agreement that any question of the amount of household expenses to which Mrs. Dorris might be entitled under the will, was to be excluded from the settlement. It would seem, therefore, under a fair construction of the agreement, that she should receive such sum as the court might find necessary to meet the household expenses, before making any application of the amounts received from the coal royalties to the judgment under the terms of the agreement. But at any rate, we do not feel that there is anything in this record which would justify us in altering in any way the order and decree of the court below. Under its terms, the way is open for change in the amount awarded for household expenses, whenever the need can be shown, in an application to the orphans’, court.

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


author: Mr. Justice Mestrezat,

text:
    North Mountain Water Supply Company v. Troxell, Appellant.

      Appeals — Assignments of error — Defective assignments — Preliminary injunction — Failure to set out decree — Failure to print docket entries— Paper-book.

    1. Assignments of error are part of the pleadings in an appellate court, and they must be complete within themselves, disclosing the cause of the alleged error. They take the place of a statement of the cause of action in the trial court, and if they do not embody or contain sufficient averments or show that the appellant has a cause of action they are insufficient and must be disregarded. There must be an issue framed by the pleadings in the appellate court as well as in the trial court, so that the record will disclose what has been decided by the judgment of the court.
    2. On an appeal from a decree awarding a preliminary injunction, the appellant must incorporate in his assignments of error the decree awarding the preliminary injunction. An assignment which merely avers that “the court erred in granting the preliminary injunction,” is insufficient.
    3. It is a palpable violation of the rules of the Supreme Court for the appellant to fail to print in his paper-book the decree from which the appeal was taken, and a literal copy of the docket entries as they appear on the record of the court below.
    Argued Nov. 2, 1908.
    Appeal, No. 286, Jan. T., 1908, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1908, No. 23, granting preliminary injunction in case of North Mountain Water Supply Company v. E. R. Troxell and Rosa Troxell.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Fuller, J.
    The court granted a preliminary injunction which it subsequently continued.

      Errors assigned were in the following form:
    1. The court erred in granting-the preliminary injunction, because it is mandatory.
    2. The court erred in granting the preliminary injunction, because the property of the defendants can only be taken by the exercise of the power of eminent domain.

      J..B. Woodward, of Wheaton, Darling & Woodward, with him W. S. McLean, for appellants.

      George R. Bedford, with him Paul Bedford and Henry W. Palmer, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

From the appellants’ history of the case, we learn that the appellee presented a bill with accompanying affidavits to the court below on September 19; 1908, and thereupon the court granted a special or preliminary injunction; that a hearing was had three days after the special injunction was granted, and five days thereafter the court continued the injunction. In the appendix to the appellants’ paper-book are printed an answer and an amended answer to the appellee’s bill. The jurat is dated September 22, 1908, but there is nothing in the paper-book to show when the answers were filed. It appears that testimony was taken by both parties before the court on September 22, 1908. Thereafter, on September 28, 1908, after the answers had been filed, testimony had been taken and the parties had been heard, the court continued the special or preliminary injunction, imposing certain conditions on the appellee.

This is an appeal taken under the Act of February 14, 1866, P. L. 28, 2 Purd. (13th ed.) 1424, which authorizes an appeal from the granting of a special injunction and directs that it shall be heard by the Supreme Court in any district in which it may be in session. The defendants have taken the appeal and have printed two assignments of error as follows: First. The court erred in granting the preliminary injunction, because it is mandatory. Second. The Court erred in granting the preliminary injunction, because the property of the defendants can only be taken by the exercise of the power of eminent domain.

The assignments of error are wholly insufficient and cannot be considered or sustained. They fail to set out the decree from which the appeal was taken and in which it is claimed there is error. They allege error in granting a preliminary injunction, and assign as a reason that it is mandatory. How is this court to determine whether the preliminary injunction was erroneous, or whether it was mandatory, unless the decree awarding it is set forth in the assignment so that the court may see and examine it? Assignments of error are part of the pleadings in an appellate court, and they must be complete within themselves, disclosing the cause of the alleged error. They take the place of a statement of the cause of action in the trial court, and if they do not embody or contain sufficient averments or show that the appellants have a cause of action they are insufficient and must be disregarded. There must be an issue framed by the pleadings in this court as well as in the trial court, so that the record will disclose what has been decided by the judgment of'the court. We have frequently held that for these reasons such assignments of error as are filed in this case are insufficient. Mr. Justice Sterrett, speaking for the court in Landis v. Evans, 113 Pa. 332, said (p. 335): “As has been repeatedly said, the assignments of error are an essential part of the pleadings in this court, and as such should be so complete in themselves as not to require reference to other parts of the record. When the case is disposed of and the record returned to the court below, the praecipe, assignments of error and plea thereto are all the papers that usually remain of record in this court, as the basis of our judgment or decree, as the case may be. It must be obvious, therefore, that each specification of error should, in and of itself, present the question we are called upon to decide.” Among the more recent cases to the same effect are Cessna’s Estate, 192 Pa. 14, and Arnold v. Russell Car & Snow Plow Company, 212 Pa. 303.

The appellants not only have neglected to incorporate in the assignments of error the decree awarding the special or preliminary injunction, but also have failed to print the decree itself or the injunction issued thereon in any part of their paper-book, and hence we do not have the decree or injunction before us. This is a palpable violation of our rules of court, and prevents us from considering the decree and determining whether or not it is erroneous. It is obvious that without having the decree before us we cannot pass upon its validity. As observed above, and as appears from the assignments, the appeal is from the special or preliminary injunction and not from the subsequent continuance of that injunction after answer filed, testimony taken, and a hearing by the court. The appellants have printed the subsequent decree, the testimony and the answers of the defendants, but have not printed the decree from which this appeal was taken. If, therefore, we could overlook the defect in the assignments, we could not determine whether the decree awarding the special injunction was correct as it is not before us as a part of the record.

The appellants’ paper-book was evidently prepared in haste, and without due regard to the rules of court. Rule 25 of this court requires the appellant to print in his paper-book the docket entries in the court below and the decree made by that court. As observed above, the decree from which this appeal is taken is not printed in any part of the paper-book, and the appellants have failed to print the docket entries. The court regards it as essential and necessary in the consideration of the case. We have distinctly said that the appellants’ paper-book must contain a literal copy of the docket entries as they appear upon the record of the court below: Bristor v. Tasker, 135 Pa. 110; Trescott v. Co-operative Building Bank of New York, 212 Pa. 47. We are compelled in this case to rely upon the history of the case for matters which would have been disclosed by the docket entries if they had been printed.

The assignments of error are overruled, and the decree of the court below awarding a special or preliminary injunction is affirmed.


author: Mr. Justice Fell,

text:
    Eddleman, Appellant, v. Pennsylvania Company.

      Negligence — Master and servant — Fellow servant.

    Where the danger in working near a steam hammer in a railroad company’s shops is obvious, and is as fully understood by a workman as by his employer, the workman will be considered to have assumed the risk; and if the danger is a transitory one resulting from carelessness and inattention of fellow workmen, such as a hammerman or a blacksmith, the workman injured cannot recover from his employer.
    Argued Nov. 2, 1908.
    Appeal, No. 225, Oct. T., 1908, by plaintiff, from order of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 849, refusing to take off nonsuit in case of S. S. Eddleman v. Pennsylvania Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts relating to 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.

      John O. Petty, for appellant.

      William S. Dalzell, of Dalzell, Fisher & Hawkins, for appellee.
    January 4, 1909:
   Opinion by

Mr. Justice Fell,

The plaintiff was employed in the defendant’s shop as a blacksmith’s helper. He was injured by being struck by a tool used by a fellow workman in cutting pieces of cold iron under a steam hammer. There were three steam hammers in the shop, two of which were used for particular lines of work and the third by blacksmiths for various purposes as they desired. In cutting cold iron with the steam hammer a square block of steel was placed on the anvil under the iron to be cut. On top of the iron a cutting bar two feet long and an inch thick, one end of which was shaped into a handle, was held in such a position that, when forced through the iron, its edge would pass close to the edge of the block below. The bar was held in place by the blacksmith and the iron to be cut was held in proper position by his helper. There were shears in the shop for cutting cold iron, but it was the custom of the blacksmiths to use the hammer, when more convenient to do so. The plaintiff had worked in the shop five years at a forge within twelve or fourteen feet of the hammer. He had frequently used the hammer and had seen others use it almost daily during -the whole of that time.

The negligence alleged was in permitting the hammer to be used for an improper purpose, and it was averred that its use was made more dangerous by reason of the failure to keep it in good repair.- It appeared from the plaintiff's testimony that the only danger to be apprehended by those working in the vicinity of the steam hammer arose from its careless or unskillful use. If the cutting bar was not held flat on the surface of the iron and with its edge in alignment with the edge of the steel plate below, or not firmly held, it might be thrown from under the hammer. The danger would be increased if the face of the hammer or the surface of the bar became wet and slippery, lessening the friction which was an aid in keeping the latter in place. There was danger of the same kind, but less in degree, in the use of shearing and shaping tools on hot iron, a work in which a steam hammer was always employed. The evidence as to want of repair was that a cup by which oil was supplied to the cylinder head was imperfect, by reason of which the packing, not being oiled, would’wear out faster and would require renewal more frequently than if oiled. If it was not renewed, steam would escape and cause a dripping of water down the piston rod to the hammer. The hammer was in charge of a hammerman whose duty it was to attend to the packing and to renew it whenever it became necessary.

Whatever danger there was in working near the steam hammer was obvious and must have been as fully understood by the plaintiff as by his employer, and the risk must be considered as assumed by him. It was a transitory danger resulting * from carelessness and inattention on the part of the hammer-man or the blacksmith, who were fellow workmen, for whose negligence the defendant was not responsible: Miller v. American Bridge Co., 216 Pa. 559; Lee v. Dobson, 217 Pa. 349. The nonsuit was properly entered.

The judgment is affirmed.


text:
    Moody v. Mossey, Appellant.

      Deed — Note to deed.

    Where a deed grants land to the grantee and his heirs, an “N. B.” following the signatures and above the acknowledgment stating that the land is not to be sold by the grantee, but is to descend to his heirs by his wife, will not be considered a part of the deed.
    Argued Nov. 2, 1908.
    Appeal, No. 226, Oct. T., 1908, by-defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 437, on case stated in suit of John Moody, Executor of the last Will and Testament of Andrew Stewart, v. James Mossey.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    The case turned upon whether a nota bene in the record of an ancient deed was a part of the deed.
    The deed in question was as follows:
    “This indenture made the twenty-second day of September in the year of our Lord One Thousand Seven Hundred and Ninety-eight. Between Charles Quinn and Elizabeth, his wife, of Robenson Township, in the County of Washington and State of Pennsylvania, of the one part, and John Stewart of Moon Township, in the County of Allegheny and State aforesaid, of the other part.
    “Witnesseth: — etc., . . . .”

    “In testimony whereof the said Charles Quinn and Elizabeth his wife, have hereuno set their hands and affixed their seals the day and year first above written (1798).
    Signed, sealed and acknowledged in the presence of . William Littell, William Shite. Charles X Quin [seal] Elizabeth X Quin [seal]
    “N. B. The above described piece of ground is not to be sold by John Stewart, but to descend from to his heirs by his wife Margaret Quin, now Stewart, it being given to said Stewart as a portion with his wife Margaret.
    “Allegheny County, ss.:
    “Personally came Charles Quinn and Elizabeth his wife, and acknowledged the above indenture to be their Act and Deed and desired that the same be recorded as such.
    “Witness my hand and seal this 8th day of November, in the year of our Lord one thousand seven hundred ninety-eight.
    “[l. s.] William Littell.
    “Recorded the 5th day of December, a. d. 1798.”
    Swearingen, J., filed the following opinion:
    We do not think that the “N. B.” attached to exhibit "A” in the case stated is part of the deed from Charles Quinn et ux to John Stewart, dated September 22, 1798; and, therefore, judgment should be entered in favor of the plaintiff and against defendant — amount to be liquidated by the prothonotary.
    Let judgment be entered accordingly.

      Error assigned was the judgment of the court.

      Charles T. Moore for appellant,
    cited: Ivory v. Burns, 56 Pa. 300; Gray v. Foster, 10 Watts, 280.

      W. H. S. Thomson, with him Frank Thomson, for appellee,
    were' not heard.
    January 4, 1909:
   Per Curiam,

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


text:
    Monongahela Water Company's Case.

      Corporations — Water companies — Condemnation proceedings — Eminent domain — Damages—Costs,
    1. Where the property of a water company is condemned by a city the company is entitled to compensation not only for the physical property taken, but also for its franchises. In such a case an order of court is correct which directs the appraisers to appraise the waterworks, and to “make a fair appraisement of the property, rights and franchises of the company.” The appraisers in determining the value took into consideration not only the physical property as a going concern, but also the right to charge reasonable tolls, the income based thereon, the prospects arising from a contract with the city, and the market price of the company’s stock.
    2. Where a city condemns the property of a water company, all of the costs of the condemnation proceedings must be paid by the city.
    Argued Nov. 3, 1908.
    Appeal, No. 233, Oct. T., 1908, by the city of Pittsburg, from order of C. P. No. 1, Allegheny Co., March T., 1907, No. 317, dismissing exceptions to board of appraisers in Monongahela Water Company’s case.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Petition by the city of Pittsburg for the appointment of persons to appraise the property of the Monongahela Water Company.
    From the record it appeared that on the petition filed the court made the following order:
    Now, October 1, 1907, upon cpnsideration of the petition of the city of Pittsburg and the answer of the Monongehela Water Company, and on motion of William B. Rodgers, city solicitor, and J. Rodgers McCreery, Esq., attorney, D. B. Oliver, W. G. Wilkins, S. S. Mehard, W. S. Watson and William McConway are appointed to appraise the value of the waterworks of the said Monongahela Water Company, being and lying within the limits of the twenty-fourth to the thirty-sixth wards, both inclusive, of the city of Pittsburg, as the said limits existed on December 23, 1885, for the purpose of enabling ..the city of Pittsburg to purchase said waterworks at the appraised value thereof, subject to deduction for any credits in the sinking fund of said company or otherwise for the redemption under the terms and conditions of the contract attached to the petition and the charter of the said Monongahela Water Company.
    And the said appraisers .... shall make a fair appraisement of the property, rights and franchises of the said company.
    Macfarlane, J., filed the following opinion on exceptions:
    The measure of damages in the taking of the property of bridge, turnpike and similar corporations for public use is well settled in this state in numerous cases, of which Montgomery County v. Bridge Co., 110 Pa., 54, is perhaps the one most cited. The rule is also declared in Clarion Turnpike & Bridge Co. v. Clarion County, 172 Pa. 243; Miffiin Bridge Co. v. Juniata County, 144 Pa. 365, and West Chester, etc., Plank Road Co. v. County of Chester, 182 Pa. 40. Such companies are entitled to compensation not only for the physical property taken, but for their franchises. It is not necessary to more than refer to the rule, for the question before us is whether in the order appointing appraisers the franchises should be included as part of the property to be appraised in the view of the terms of the charter and of the contract between the city and the company.
    In making the appointment the court should indicate what property is to be valued, although it would be impractical to include in the order the elements of value entering into the appraisement. To omit any would unduly emphasize those mentioned, and it would be unfair not to state the considerations tending tó depreciate the value as well as those increasing it. The development of the facts in the taking of the testimony will very likely raise questions not now anticipated, and we think the better practice is to designate the property to be appraised and not to attempt any instruction as to the elements of damage. This is in accordance with the practice in ordinary cases.
    By the terms of the charter, Act of April 21, 1855, P. L. 577, the franchises of the company do not necessarily expire at the end of forty years from the date when it began to supply its customers. The right of purchase by the boroughs or their successor, the city, depended upon the earnings and the amount of the redemption fund. The answer avers that the earnings have never reached the required amount, but the contract of December 23, 1885, changes that provision and fixes a time, December 24, 1906, when the board of appraisers shall be appointed in a manner provided for in the charter. The right of the company to continue its business is to continue after that date, if the company and the city shall not within six months from that date agree on the terms of payment for said works, until such time as the city shall give one year’s notice to the company of the intention of the city to purchase at the appraised valuation. The rights of the company terminate only when the appraisement has been made and the year’s notice given unless the parties agree on the terms of the payment at the appraised price.
    The contract uses the term "works.” The appraisement, however, is to be made by appraisers appointed in the manner provided for in the charter. The city is the successor of the boroughs and the existing authority in the districts, and as such it had by the charter a right of purchase on a prescribed contingency. The agreement changed that condition and fixed a definite time, but expressly bases the proceeding upon the charter. No intention is shown to fix a different subject for valuation than that mentioned in the charter. That act makes the “waterworks” the equivalent of “the property owned by the Monongahela Water Company,” and the thing to be paid for is the “property.” That the real and personal property of the company is only a portion and that the franchises and the right to charge water rents are part of the property of the company is settled by Montgomery County' v. Bridge Company, 110 Pa. 54.
    The value of the property is to be determined by the appraisers upon a consideration of all the circumstances.
    On exceptions to the appraisement Macfarlane, J., delivered the following opinion :
    The order of court directed the appraisers to appraise the waterworks and to “make a fair appraisement of the property, rights and franchises of the company.” The question at issue when that order was made was whether the valuation was to be of the physical property only or was to include other elements. An elaborate and able argument has now been made on behalf of the city that the valuation should be of “the physical property as a going concern.” Without attempting to analyze the distinction between that expression and the one in the order it is sufficient to say that we are all agreed that the order was correct.
    The next question is whether the appraisers in the performance of their duty conformed to the order. It is a mistake to say that the court gave instructions aside from the order, and the report shows that the appraisers understood this. There was laid before them the charter, the contract with the city and practically every fact that could affect the value. It is to be presumed that they acted regularly and in accordance with law. The briefs submitted to them show that counsel made a most thorough presentation of their position. There was before the board the fact that the right to charge for water was limited by the contract, that the franchise was not a perpetual monopoly, but the existence of the company and its right to do business —and this is in effect what is meant by franchise — was subject to two contingencies. Nevertheless, the tolls, limited though they might be, could be reasonable under all the circumstances. The right to charge a reasonable rate does not mean any rate. And notwithstanding the possible purchase by the city the company had prospects, whether good or bad, and one of them is that the city may even now decline to buy. The company had a right in the streets, a right to supply the public, it had its customers, it had an income, its plant had a certain productiveness. How else could the value of its property be ascertained than by a consideration of these things? Witnesses gave their opinion of value, and the general estimate made by the public in prices at which stock is bought and sold is some evidence of value, of more or less weight according to the circumstances. Whether it be condemnation or a purchase does not affect the question. The company is entitled to fair, just compensation, and that is always the fair value.

      Now what did the appraisers do? They do not mention the franchise, but they value “the physical property as a going concern.” They say that they considered “with the physical property the intangible elements so far as they add value to the plant, rightfully for use as waterworks in the hands of the water company with the company’s right to charge reasonable tolls.” As we have sefen, this was their duty. And they say, “The appraisers have considered the subject from the various points of view presented by the evidence and especially those of the worth of the physical property as a going concern, the income, the prospects and -the market price of the company’s stock.” We have already shown that these are proper elements for consideration. In short, the report shows that the appraisers carefully made the appraisement according to law, and the proceedings before them confirm this.
    The question of costs must be disposed of. There is no express provision in the statute, but it is provided that the company shall be obliged to take such sum of money as shall be allowed on a fair appraisement. It cannot, therefore, be compelled to take any less sum. To require it to pay all or part of the costs would reduce the amount to be so paid. It follows that the city should pay the costs, and it will be so ordered.

      Charles K. Robinson, with him W. B. Rodgers and A. B. Smith, for appellant.
    — A city having the right under a contract and under the special provisions of the charter of a water company, to take over the waterworks of said company at an appraisement, the city should not be required to pay for franchises: National Water Works Co. v. Kansas City, 62 Fed. Repr. 853; Buckwalter v. Bridge Co., 38 Pa. 281; Valparaiso City Water Co. v. City of Valparaiso, 33 Ind. App. 193 (69 N. E. Repr. 1018).
    All contracts are to be construed liberally in favor of the public: Baily v. Philadelphia, 184 Pa. 594; Muncie Natural Gas Co. v. City of Muncie, 160 Ind. 97 (66 N. E. Repr. 436); Valparaiso City Water Co. v. City of Valparaiso, 33 Ind. App. 193 (69 N. E. Repr. 1018); City of Indianapolis v. Consumers’ Gas Trust Co., 144 Fed. Repr. 640; Joy v. St. Louis, 138 U. S. 1 (11 Sup. Ct. Repr. 243); Coosaw Mining Co. v. South Carolina, 144 U. S. 550 (12 Sup. Ct. Repr. 689).

      D. T. Watson, with him John M. Freeman and Ernest C. Irwin, for appellee.
    — The fair appraisement required by the act of 1855 is not limited, as the city claims, to the mere physical property: Pass. Ry. Co. v. Moore, 64 Pa. 79; Brunswick etc., Water District v. Maine Water Co., 99 Me. 371; (59 Atl. Repr. 537); Kennebec Water Dist. v. Waterville, 97 Me. 185 (54 Atl. Repr. 6); Bristol v. Bristol, etc., Water Works, 23 R. I. 274 (49 Atl. Repr. 974); Galena Water Co. v. Galena, 74 Kan. 644 (87 Pac. Repr. 735); In re Water Commissioners of White Plains, 71 N. Y. App. Div. 544; Mifflin Bridge Co. v. Juniata County, 144 Pa. 365; Montgomery v. County Bridge Co., 110 Pa. 54.
    It was the duty of the appraisers, in making a fair appraisement of the property of the Monongahela Water Company, to include its franchises, i. e., its right to do business and such intangible elements as legally and properly add value to the property, as, for example, its earning power.
    January 4, 1909:
   Per Curiam,

The order is affirmed on the opinions of the court below.


author: Me. Justice Pottee,

text:
    National Bank of Tarentum, Appellant, v. Equitable Trust Company of Pittsburg.

      Principal and surety — Employee’s bond — Bookkeeper’s bond — Certificate of cashier to surety company — Banks and banking — Examination of bookkeeper’s accounts — Evidence.
    1. Where a surety company on the bond of the bookkeeper of a bank, addresses each year before the renewal of the bond, a request to the bank for information as to the bookkeeper’s conduct, and the cashier of the bank mistakenly certifies to the surety company that the bookkeeper’s accounts have been examined and found correct, that all moneys handled by him have been accounted for, and that there is no reason known to the bank why the bond should not be continued, and the bond is continued on the strength of the certificate, the bank cannot disavow the certificate of the cashier, and in an action on the bond a verdict and judgment for the surety company relieving it from liability is amply justified.
    2. Where the directors of a bank, through long usage, permit the cashier to act without their express authority, in matters in which they might lawfully authorize him to act, they cannot after such action upon his part, be heard to deny his authority, to the detriment of those who have relied upon it.
    3. The certificates made by the cashier of a bank to a surety company, the bondsman of a bookkeeper, certified that on or about their dates the books and accounts of the bookkeeper were examined and found correct in every respect. This statement was repeated from year to year at periods of the renewal of the bond. After this had been going on for several years an audit disclosed the fact that in each year during the operation of the bond large sums of money had been extracted by the bookkeeper. The method pursued was in changing upon the journal enough to cover the amount of his shortage and posting the altered amount to the general ledger, leaving the postings to the individual ledger untouched. An effective audit made at any time would have shown the shortages, and it did appear that trial balances taken from the ledger from time to time were out of balance, and that the bank permitted these errors to go uncorrected. Held, that the evidence was sufficient to support a finding that the certificates were untrue, and that the surety was relieved of its bond.
    4. In such a case evidence as to the entries made by the bookkeeper in the books of the bank, and as to the character of the examinations of the accounts by the board of directors, and with respect to the certificates made by the cashier, is all relevant and competent testimony.
    Argued Nov. 2, 1908.
    Appeal, No. 234, Oct. T., 1908, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1905, No. 1,072, on verdict for defendant in case of The National Bank of Tarentum v. The Equitable Trust Company of Pitts-burg.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on bond of suretyship. Before Shafer, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various rulings on evidence, quoting the bill of exceptions, and various instructions, quoting them. .

      J. E. McKelvy, with him J. Merrill Wright, for appellant.—
    Certificates made by the cashier as to the character of James H. Ekas, a coemployee, and the condition of his accounts, not being made with the knowledge or authority of the board of directors of the bank, are not binding on the bank: Lieberman v. First Nat. Bank, 40 Atl. Repr. 382; U. S. Fidelity & Guaranty Co. v. Muir, 115 Fed. Repr. 264; American Surety Co. of N. Y. v. Pauly, 170 U. S. 133 (18 Sup. Ct. Repr. 552); Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Shaeffer, 59 Pa. 350.
    The default of Ekas to the bank prior to the giving of the bond and its various renewals, being unknown to the officers of the bank, would not discharge the defendant as surety: Wayne v. Commercial Nat. Bank, 52 Pa. 343; Tapley v. Martin, 116 Mass. 275; Bowne v. Mt. Holly Nat. Bank, 45 N. J. Law, 360.
    It is good faith and not diligence that is required of the creditor as the condition of his right to hold the surety: Sparks v. Farmers’ Bank, 3 Del. Ch. 274; Amherst Bank v. Root, 43 Mass. 540; Wayne v. Commercial National Bank, 52 Pa. 343; Atlas Bank v. Brownell, 9 Rhode Island, 168; Pittsburg, Ft. Wayne & Chicago Ry. Co. v. Shaeffer, 59 Pa. 350; Lieberman v. First National Bank of Wilmington, 40 Atl. Repr. 382; Williams et al. v. Lyman, 88 Fed. Repr. 237.

      John P. Hunter, of Lyon, Hunter & Burke, for appellee.
    — It was a question for the jury, whether Camp had authority to make the certificates, and if such authority, either express or implied, existed, the plaintiff was bound thereby: American Surety Co. of N. Y. v. Pauly, 170 U. S. 133 (18 Sup. Ct. Repr. 552); Guarantee Co. of North America v. Mechanics’ Savings Bank & Trust Co., 183 U. S. 402 (22 Sup. Ct. Repr. 124); Fidelity & Deposit Co. v. Courtney, 186 U. S. 342 (22 Sup. Ct. Repr. 833); Mining Co. v. Anglo-California Bank, 104 U. S. 194; Vergennes Bank v. Warren, 7 Hill (N. Y.), 91; Davenport v. Stone, 104 Mich. 521 (62 N. W. Repr, 722).
    The bank, having intrusted the cashier with the obligation of procuring this bond, is bound by all the representations made by him in order to its procuration, and cannot accept the benefit of his acts and repudiate the obligation imposed: Mundorff v. Wickersham, 63 Pa. 87; Meyerhoff v. Daniels, 173 Pa. 555; Sunbury Fire Ins. Co. v. Humble, 100 Pa. 495.
    The fact that the books were out of balance in all these years not having been communicated to the surety company either at the time of the original bond, or its subsequent renewals, relieves that company from the bond: Lauer Brewing Co. v. Riley, 195 Pa. 449; Brewing Co. v. McLean, 15 Pa. Superior Ct. 38.
    January 4, 1909:
   Opinion by

Me. Justice Pottee,

At the instance and under the direction of his employer, the National Bank of Tarentum, and at the cost of the bank, one James H. Ekas obtained from the defendant .company a fidelity bond for the sum of $10,000 conditioned to make good to the bank all pecuniary loss sustained by it through any fraud or dishonesty on the part of the said Ekas in connection with his duties as bookkeeper, during the continuance of the bond. It covered a period of twelve months ending April 10,1899. Its provisions were extended from year to year upon the payment of an additional annual premium until April 10, 1904. Attached to the original application was a statement signed by the cashier on behalf of the bank, commending the applicant, giving the time of his previous service with the employer, etc., and certifying that his accounts had been properly examined, and found correct in every respect.

Each year, prior to April 10, the trust company sent the bank a notice of which the following is a copy :

“ To National Bank of Taeentum, Taeentum, Pa.
“Deae Sie: We hereby notify you that Bond No. 11, for $10,000, issued by this company on James II. Ekas, in your employ as bookkeeper, will expire on the tenth day of April next. The premium, $40.00, should be paid on or before the date of expiration, otherwise the bond will lapse. Kindly have the certificate below filled in and signed, and forward with remittance for premium, when the renewal receipts will be sent to you.
“ Yours respectfully,
“ Theophilus Speoull, President.”

To this was attached the certificate referred to in the notice. These certificates were all in the same form and were all filled out in the same way and returned to the trust company. The last certificate was as follows :

“ To the Equitable Trust Company oe Pittsburg :
This is to certify that on the 10th day of April, 1903, the books and accounts of Mr. James H. Ekas, in our employ as Bookkeeper, were examined by us and that we found them correct in every respect, and all moneys handled by him accounted for to the best of our knowledge and belief. He has performed his duties in an acceptable and satisfactory manner. We know of nothing in his habits or antecedents affecting unfavorably his title to confidence, and we know of no reason why the guarantee bond issued on his behalf by The Equitable Trust Company of Pittsburg should not be continued.
“(Signature) O. C. Camp.”
“ On behalf of National Bank of Tarentum, Employer, His salary is now $900. Hated at Tarentum, Pa., April 10,1903.”

It was provided in the bond that in case of its extension the company should be liable for any dishonest act of the employee occurring between the original date of the bond, and the limit of the extension. In June, 1904, it was found that Ekas had been systematically defrauding the bank, and the amount of his defalcation was subsequently fixed at $9,200, for the recovery of which sum this suit was brought upon the bond. The trust company defended on the ground that the statements contained in the certificates as to the examination of his accounts were untrue, and that therefore the defendant could not be held liable on the bond which had been issued or extended upon the faith of the representations in the certificates.

The trial judge refused binding instructions for either plaintiff or defendant, and submitted to the jury two questions, (1) Whether the bank must be considered to have authorized its cashier to sign the renewal certificates, and (2) whether the statements in these certificates were untrue or substantially true. The verdict was for the defendant, and judgment was entered thereon. Plaintiff has appealed, and by the assignments of error raises substantially but one question, and that is as to whether it was entitled to binding instructions in its favor.

It was not shown by the testimony that the board of directors knew of the making of the certificates at the time they were made by the cashier. But it clearly appears that they were made in response to a written inquiry addressed to the bank, which was received by the bank, and was answered by its executive officer, who was charged with the business of conducting its correspondence. ¥e have no doubt whatever but that the making of the certificate in each case was an act done in the regular course of business of the bank, by its proper officer authorized to represent it in that respect, and dealing with the surety company for and on behalf of the bank. The information asked for by the trust company was entirely proper for its guidance in the transaction, and the renewal of the bond from year to year, was without doubt made upon the faith of the statements contained in the certificate. The bank cannot be heard in disavowal of the representations made by its executive officer, which led the defendant company to agree to continue its responsibility. It certainly cannot be permitted to claim the benefit of the action of its cashier in procuring from the trust company the various extensions of the bond, and at the same time repudiate the terms of the representations made by him for that purpose.

It is apparent from the evidence in this case that the directors gave but scant personal attention to the management of the bank, and that the control of its affairs was left largely to the cashier. The board of directors met infrequently, sometimes only once a month. There is no question but that the action of the cashier in making the certificates was something which he might very properly have been authorized by the board of directors to do, had the matter been brought to their attention. Beyond a doubt the board would have authorized the making of any proper certificate for the renewal of the bond, just as they did in the first application. The law is well settled that where the directors of a bank, through long usage, permit the cashier to act without their express authority, in matters in which they might lawfully authorize him to act, they cannot, after such action upon his part, be heard to deny bis authority, to the detriment of those who have relied upon it. See Morse on Banks, see. 165, paragraph c; Davenport v. Stone, 104 Mieh. 521. In the present case, when the defalcation was finally discovered by means of an audit which should have been made years before, it was the cashier, acting in behalf of the bank as before, who presented the claim to the defendant company. Ve are fully satisfied that the evidence was ample to justify the jury in finding that the cashier had authority to make the certificates, and that his action in so doing was binding upon the bank.

Turning now to the contents of the certificates, we find set forth in each of them, that on or about their dates, the books and accounts of Ekas were examined and found correct in every respect. This statement was repeated from year to year during the period of the defalcations for which recovery is sought. And yet the statement of claim filed in this case, based on the results of the audit, shows that during the first year of the operation of the bond, a sum aggregating $1,100 was abstracted by the bookkeeper in smaller amounts, periodically taken with almost monthly regularity, and covered in the books by raising the figures of his accounts; in the second year the process was repeated, and a total of $1,600 was taken in the same way; in the third year the amount ran up to $1,800, and in the remaining years of the period the sums taken and covered in the accounts in the same way were sufficient to bring the aggregate loss to the bank up to $9,200. The method pursued by Ekas was the simple one of changing the footings upon his journal enough to cover the amount of his shortage, and posting the altered amount to the general ledger, leaving the postings to the individual ledger untouched. Had an effective audit, similar to the one which was finally made, been made by the bank at any time during any one of the years in which the shortages occurred, or had any examination which included a comparison of the aggregate footings of the individual ledger with those of the general ledger, been made, it ■ would have shown the discrepancy, and a careful scrutiny would have revealed the fraudulent practices of the bookkeeper. The necessity for such a comparison upon the part of those in charge of the bank, would be obvious to anyone with the most elementary knowledge of the keeping of banking accounts. It appears further from the testimony that the trial balances as taken from the ledger and presented from time to time by Ekas were out of balance, and that the errors were allowed to go uncorrected. This in itself was notice that something was wrong, and should have prevented the issue of any such certificate as was given to the defendant company. The cashier testified that if a trial balance had been taken from the individual ledger, and compared with the general ledger, at any time during the existence of the short ages, the discrepancy would have been discovered, if the trial balance had been taken correctly. Yet the evidence shows that, in the face of these admitted irregularities, and in the absence of any genuine or thorough audit of the books and accounts, in answer to its inquiry year after year, the trust company received from the bank the certificate of its executive officer, that the books and accounts of Ekas had been examined and found correct in every respect. If the jury credited the undisputed evidence in this case, it could have reached no other conclusion than that which it did, in its finding that the certificates were in fact untrue, and misleading to the defendant company.

The evidence as to the entries made by the bookkeeper in the books of the bank, and as to the character of the examinations of the accounts by the board of directors, and with respect to the certificates made by the cashier, was all relevant and competent testimony, and was properly admitted by the trial judge. Nor do we see any error in the portions of the charge to the jury to which exception has been taken.

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


text:
    McCullough-Dalzell Crucible Company, Appellant, v. Philadelphia Company.

      Corporations — Natural gas companies — Contract—Rates—Termination of contract — Notice—Change of position.

    Where a natural gas company contracts in consideration of a right of way conveyed absolutely, to furnish gas to the grantor at a certain rate, and the duration of the contract is left indefinite, and years after the contract is made conditions change, so that the gas company, in order to cover the increased cost of producing gas, is compelled to increase its rates to other consumers, the company may terminate the contract upon a reasonable notice.
    Argued Nov. 3, 1908.
    Appeal, No. 160, Oct. T., 1908, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1907, No. 281, dismissing bill in equity in case of McCulloughDalzell Crucible Company v. Philadephia Company.
    Before Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Miller, J., specially presiding, filed the following opinion:
    The" bill alleges, that the plaintiff granted the defendant the right to lay and maintain pipe lines in the bed of Thirty-sixth street and Spruce alley in the city of Pittsburg, title to which the plaintiff claims; in consideration for which the defendant had agreed to furnish gas as fuel to the plaintiff’s crucible works free of cost for one year, and thereafter at a rate equal to one-half the cost previously paid for coal, coke and other fuel; that the defendant company now proposes to terminate said contract, to remove the pipe lines remaining and to discontinue service, except upon a new contract based on the present market price; the bill prayed for an injunction and for the specific performance of the contract.
    The answer admits the contract, but asserts, first, that it, being without time limit, is revocable upon reasonable notice by either of the parties;, second, that the contract itself contains a right of termination; third, that the present condition respecting the cost and supply of gas, was not within the contemplation of the parties when the contract was made; that-the present price is inequitably low, less than the cost of production, and far less than that paid by other consumers of the same character.
    FINDINGS OF FACT.
    1. The plaintiff is a corporation under the laws of Pennsylvania, engaged in the manufacture of crucibles, and other articles containing plumbago; it is the successor of a partnership formerly doing business under the name of McCullough, Dalzell & Company. It is now the owner of a manufacturing plant in the fifteenth ward of the city of Pittsburg, bounded by Thirty-sixth street on the east and by the Allegheny Valley Railroad on the south.
    2. Prior to March 13, 1886, Michael McCullough, Jr., a then member of the partnership of McCullough, Dalzell & Company, was the owner of a piece of ground adjoining that described in the first finding of fact, fronting on said Thirty-sixth street, bounded by, and extending across, Spruce alley and said Allegheny Valley Railroad. Said alley had never been an open street, and was owned in fee by said Michael McCullough, Jr., who, with the other members of said partnership, were the then owners in fee of the lot of ground described in the first finding of fact.
    3. The Philadelphia Company, defendant, is a corporation under the laws of Pennsylvania and is engaged now and prior to 1885 in the production, transportation and sale of natural gas in the city of Pittsburg and elsewhere.
    4. On March 13, 1886, Michael McCullough, of the first part, McCullough, Dalzell & Company, of the second part, and the Philadephia Company, of the third part, entered into the following agreement:
    “Whereas, M. McCullough, Jr., is the owner of a certain lot or piece of ground situate in the 15th ward of the City of Pitts-burg, fronting on 36th street, and bounded by Spruce alley and the Allegheny Valley R. R.;
    “And Whereas, Michael McCullough, Jr., John H. Dalzell, C. C. Arensberg and H. E. Dubarry, partners doing business as McCullough, Dalzell & Company, are the owners of a certain lot or piece of ground situate in the said ward, bounded by the Allegheny Valley R. R., on the south and the Allegheny river on the north, and running from 35th to 36th street;
    “And Whereas, The Philadelphia Company has already laid its pipe line in the bed of that portion of 36th street which is the property of the said McCullough, and McCullough, Dalzell & Company, and also in Spruce alley upon the property of said M. McCullough, Jr., and is desirous of having its rights to maintain and operate its said pipe line confirmed;
    “ Now, This Agreement, made this 13th day of March, 1886, between the said M. McCullough, Jr., party of the first part, Michael McCullough, Jr., John H. Dalzell, C. C. Arensberg and H. E. Dubarry, partners doing business as McCullough, Dalzell & Company, parties of the second part, and the Philadelphia Company, party of the third part, witnesseth as follows:
    “Said party of the first part, and said parties of the second part in consideration of the sum of one dollar to them in hand paid by the Philadelpl. 'a Company, receipt of which is hereby acknowledged, and in further consideration of the agreements hereinafter mentioned to be kept and performed by the said Philadelphia Company, hereby grant and convey unto the said Philadelphia' Company, its successors and assigns, the right to maintain and operate and from time to time repair, its pipe line for the conveyance of natural gas, extending from the Allegheny river southward in the bed of 36th street to Spruce alley and through Spruce alley; to have and to hold said right and privilege to the said Philadelphia Company, its successors and assigns forever.
    “In consideration of the premises, the Philadelphia Company hereby agrees to furnish to the said McCullough, Dalzell & Company or their successors or grantees occupying same ground gas for fuel at their crucible works, of present size and capacity, situate on said property, according to the terms and conditions of the contract in ordinary use by said Philadelphia Company with its customers, but without cost, for one year from the first day of May, 1885 (five), and thereafter at a rate which shall equal one-half the cost to said McCullough, Dalzell & Company of the coal, coke and other fuel by them used prior to the introduction of natural gas [during the two (2) years previous to the introduction of gas].”
    To the foregoing agreement and made part thereof was attached a blank form of agreement then in use between the Philadelphia Company and its consumers, which agreement in full is found in the plaintiff’s bill.
    Among the provisions of said printed form of agreement, are the following: (a) That the consumer should provide and make all connections and appliances for the purpose of utilizing natural gas from the mains of the Philadelphia Company; (b) that it would exercise all due care so as to prevent any waste in the use of gas; (c) that, if it violated said provisions and any of the others contained in the agreement, the supply might be cut off on five days’ notice.
    Among the mutual covenants in said agreement are the following: (a) That if the company’s supply of gas should fail, whether from natural causes or otherwise, its obligations under the agreement should cease and determine, and (6) “ This agreement shall continue in force after the expiration of the term named until either pa3d;y gives-days’ notice of the desire to terminate the same, at the expiration of which time the agreement shall cease.”
    5. On April 9, 1886, Michael McCullough, Jr., party to the agreement set forth in the fourth finding of fact, executed and delivered an assignment of it to said McCullough, Dalzell & Company.
    6. In pursuance of the foregoing contracts and assignment, the plaintiff company at a considerable expense equipped and fitted out its plant for the use of natural gas, and the defendant company continued to furnish gas to the plaintiff in accordance with said contracts and assignment, from May 1, 1885, until March 15, 1907, when it served the following notice upon the plaintiff company:
    “Whereas, by an agreement dated March 13th, 1886, between M. McCullough, Jr., Michael McCullough, John H. Dalzell, C. C. Arensberg, H. E. Dubarry and the Philadelphia Company, there was granted to the said Philadelphia Company, a right of way over which to maintain and operate a pipe line for the conveyance of natural gas, extending from the Allegheny river southward in the bed of 36th street to Spruce alley, and through Spruce alley, and in consideration therefor the Philadelphia Company agreed to furnish to the said McCullough, Dalzell & Company, or their successors, gas for fuel at their crucible works, without cost, for one year from the first day of May, 1885, and thereafter at a rate which shall equal one-half the cost to said McCullough, Dalzell & Company of the coal, coke and other fuel by them used prior to the introduction of natural gas (during the two years previous to the introduction of gas); and
    “Whereas, it is the intention of the said Philadelphia Company to abandon said right of way and to reclaim therefrom as much pipe as it is practicable for it to reclaim, and to be thereupon released from its obligation to furnish gas at the above mentioned rate.
    “Therefore, Notice is hereby given, that the Philadelphia Company will, on April 30th, 1907, terminate said contract; will permanently abandon and remove said pipe line, and will not thereafter furnish gas to the said McCullough, Dalzell & Company or McCullough-Dalzell Crucible Company, its successors, except at the present market price and under a new contract.”
    7. The defendant has a sufficient supply of gas to meet plaintiff’s needs, which supply, however, comes from fields and wells and under circumstances almost wholly different from those in operation and used at the time the contract was made, and which will be fully set forth in another finding of fact. The defendant can supply the plaintiff’s needs from its mains located in the public streets, without using any of the lands or easements formerly belonging to Michael McCullough, Jr., or to the plaintiff’s predecessor in title.
    8. When said contract was executed, defendant’s supply of gas was obtained from wells in and near the vicinity of Pitts-burg, the gas being driven by natural pressure. At present about 80,000 cubit feet of gas per day comes from the wells or territory in use when the contract was executed. The defendant’s main supply is now obtained from wells at a great distance from the city of Pittsburg, driven to far greater depth, and the greater portion of the gas must be pumped from the supply wells through its mains to the points of distribution. The cost of production is now a fraction over nine cents per thousand cubit feet. The price received from the plaintiff company under the contract is a fraction over one cent and five mills per thousand cubit feet. The defendant’s regular charge to like consumers at present is twenty-five cents per thousand for the first 150,000 cubit feet, fifteen cents per thousand for the next 150,000 feet and eleven cents per thousand for all in excess of that. The plaintiff company from the time of the contract to 1893 paid the defendant $114 or $117 per month, and since that time it has paid $50.00 per month. From a meter installed by the defendant, it appears that between May 4, 1907, and December 31, 1906, a period of about eight months, the plaintiff company consumed 24,072,400 cubit feet of gas, or an average of over 3,000,000 cubit feet per month, which at the ordinary charge to like consumers would average over $350 per month. Its daily consumption is over 100,000 feet and exceeds the daily production of all the wells and territory when the contract was made.
    CONCLUSIONS OF LAW.
    1.. The written contract, exhibit “A,” exclusive of the form of printed contract attached thereto, being unlimited as to time, is revocable by either of the parties upon reasonable notice.
    2. The printed form of contract made part of exhibit “A,” containing the terms and conditions not expressed in the written portion of the contract, provides for the termination of the contract by either party on reasonable notice.
    3. The conditions relative to the cost and supply of gas now existing, were not within the contemplation of the parties when the contract was made. If at the time the contract was made the parties had not in contemplation the addition of new territory and additional wells to supply the demand, the contract is terminable by reason of the failure of the then supply.

      4. If at the time the contract was made the parties had in contemplation the exhaustion of the then gas supply and the necessity of increased expenditures to obtain a new supply, then the contract was a discrimination as against other consumers of a like character, and is void on the grounds of public policy.
    5. The defendant, having tendered a reconveyance of the easement granted to it and given notice of its intention to terminate the contract, under the facts and foregoing conclusions, should not be held in equity to a continued further performance of said contract.
    6. The bill should be dismissed at the cost of the plaintiff.
    OPINION.
    It is clear from the opinion of the late President Judge Ewing of this court in Crescent Steel Company v. Equitable Gas Company, 40 P. L. J. 316, that whatever else may not have been in the contract of April 2, 1889, the supply of gas for an indefinite period was therein, and in its continuation by the contract of November 1, 1889. Having this in mind, he states that either party might terminate the arrangement on giving a reasonable notice of its intention so to do.
    The general principle that contracts without time limit are terminable on reasonable notice by either of the parties, is sustained in Coffin v. Landis, 46 Pa. 426, where the question at issue was, whether such revocation constituted a breach. The conceded right of a principal to revoke an agent’s authority was only incidential to the main question. There certainly is no question of agency in the case of Philadelphia & Reading Railroad Company v. River Front Railroad Company, 168 Pa. 357, where it is specifically held that the contract was not irrevocable by either party upon suitable notice, after a date named. So in Cumberland Valley Railroad Company v. Gettysburg & Harrisburg Railway Company, 177 Pa. 519; and in Kenderdine Hydro-Carbon Fuel Company v. Plumb, 182 Pa. 463, the court, after stating the facts, concludes “ if either party desired to terminate it, if this could not be done by agreement, it was his duty to deal fairly by the other party and to give a reasonable notice of Ms intention to withdraw from it at a fixed date.”
    The foregoing principle finds universal application in the decisions of many of the other states, among which are: Marble v. Standard Oil Company, 169 Mass. 553 (48 N. E. Repr. 783); Irish v. Dean, 39 Wis. 662; Savage v. Medical & Surgical Association, 59 Mich. 400. In Echols v. Railroad Company, 52 Miss. 610, a contract to supply cordwood to a railroad company, without fixing a time for its termination, the court said: “ Perpetual contracts of this character will not be tolerated by the law, or rather will not be enforced, as imposing an eternal and never-ending burden. An agreement to furnish a particular commodity at a specified price .... without specification as to time, will be construed either as terminable at pleasure, or implying that the thing to be done shall be performed within a reasonable time .... any other theory is a moral and a practical impossibility and if indulged in by the courts could not be enforced in the ordinary concerns of life,” citing a number of authorities, among which are Chitty on Contracts (11th Am. ed.), p. 1062; Story on Contracts, sec. 21.
    In Marshall v. Railway Company, 136 U. S. 393 (10 Sup. Ct, Repr. 846), where the city of Marshall gave to the company $300,000 in county bonds and sixty-six acres of land within the city limits in consideration that the company would permanently establish its eastern terminus and maintain therein its main machine shops and car works; it was held that the contract was performed when the company had complied with the provisions thereof for a period of eight years until its interests •and the public demand required removal of the subjects of the contract to some other place.
    The case of Franklin Tel. Co. v. Harrison, 145 U. S. 459 (12 Sup. Ct. Repr. 900), relied on by the plaintiff, was decided on its own peculiar facts, among which it appears that the defendants had released a prior valuable contract; that they had expended $10,000 to erect a new wire under the new contract; and that plaintiff failed to substantiate its averment that it was excluded from any use of the wire on its lines by the continuous use thereof through the defendants; these facts seeming to establish an equity in favor of the defendants, are not comparable with those in the case at bar, and therefore have no controlling weight in its determination.
    The contract, exhibit “A,” as a whole, is revocable on notice by its terms. The printed form contains the “terms and conditions” referred to in the written contract; in consideration of the grant of an easement in the beds of Thirty-sixth street and Spruce alley, the defendant company agreed to furnish gas to the works for nothing during the first year, and thereafter at half the cost of coal and coke, “according to the terms and conditions of the contract in ordinary use by the said Philadelphia Company with its customers.” The printed contract contains important and material terms and conditions, without which the written contract was not enforceable. For instance, the plaintiffs were required to make all connections and appliances from the defendant's lines; to exercise due care in preventing waste, agreeing that, if it violated any of the foregoing provisions, or any of the other provisions in said printed form, the supply of gas might be cut off; it contains the important provision that in case the supply of gas failed the contract was at an end, and the final clause that the contract might be terminated upon certain notice; these are there with a purpose, else they would have been stricken out. If the printed contract is not to be considered with the written, why is it part thereof?
    It is urged that it is inconceivable that the parties by the written terms of the contract should have provided for a never-ending agreement and at the same time provide for the termination thereof. That does not follow — when the contract was made, much of the consideration had passed — the defendant was on the right way of — the plaintiff receiving free gas — under the conditions then existing, its continuation for a reasonable time controlled. By their act they provided for its termination under changed conditions.
    It is contended that defendants having accepted this right of way by deed, cannot be permitted to retain the same and escape the liability to deliver gas at the stipulated price, citing a number of railroad condemnation proceedings as analagous cases: these are all actions of law, where the injury, if any, was ascertamable in damages. If the use of this right of way has damaged the freehold to an extent exceeding the difference between the price they paid and the price charged to other consumers, then it is within plaintiff’s right to bring suit for the recovery of such additional loss.
    Not only is it said in Crescent Steel Company v. Equitable Gas Company, 40 P. L. J. 316, that the parties might terminate their contract, but the principle is further announced that the contract was in violation of the act of assembly chartering natural gas companies, and void as contrary to public policy, because it was an attempt to prefer certain consumers as against others of a similar class. Conceding that the preferred consumers there, were stockholders and directors of the gas company, why in principle should there be any distinction between them and any other class of preferred consumers, peculiarly benefiting by a contract with a public service corporation, necessarily at the expense of other consumers? This contract must be construed with reference to the conditions existing at the time it was made. If, as contended for by the plaintiff, at the time of its execution all the parties knew or ought to have known that new fields and greatly increased expenses would be incurred for the purpose of the supply of gas, then the contract was discriminatory and is void because the defendant, to remain in business, must charge other consumers more than the cost price of its gas; this advantage to the plaintiffs, against the general public, is wholly unwarranted in law. The day of rebates, preferential discriminations and unequal and unfair charges, to like classes of customers, by public service corporations, is, and should be, drawing to a close.
    Again, if the parties had in contemplation only the conditions as they then existed, it is clear that the contract should fail for want of a supply of gas, the evidence being that not enough gas is obtained from all the wells in existence when the contract was made to now supply the plaintiffs’ works, if no other consumer was served in the city of Pittsburg or its vicinity. The subject-matter, the supply of gas, being thus exhausted, the contract is terminable by virtue of the terms and conditions relating thereto: Ward v. Vance, 93 Pa. 499.

      Finally, the equities of this case are wholly with the defendant company. It is clear that when this contract was made a condition existed vastly different from that now found. The supply of gas seemed overabundant; it came from the immediate vicinity, propelled by its own power. For twenty-two years and more the plaintiffs have had a great profit at the expense of the general consumer, and loss of the company, paying for this fuel now a little over ten per cent of its actual cost. Since 1893, a period of fourteen years, this advantage amounts to more than $65,000; from 1885 to 1893, a period of eight years, it had the same relative advantage. Apparently the consideration of this right of way has been an expensive one. Certainly, in view of the abandonment thereof with the tender of surrender, the plaintiffs have no ground for complaint, especially in view of the fact that the offer is made them to continue their supply on such new contract as may be agreed upon, assuming, of course, that this contract will be fair and on the same terms and conditions of like contracts with a class of consumers.

      Error assigned was the decree of the court dismissing the bill.

      Thomas Patterson, of Patterson, Stérrett & Acheson, with him Charles F. C. Arensberg, for appellant.
    — The evidence admitted by the court to show the changed conditions prevailing at the present time, and the increased cost, was improperly admitted: Weisenberger v. Harmony Fire, etc., Ins. Co., 56 Pa. 442; Book v. New Castle Wire Nail Co., 151 Pa. 499; Watsontown Car Mfg. Co. v. Lumber Co., 99 Pa. 605; Jones v. Nat. Gas Co., 146 Pa. 204; Collins v. Mechling, 1 Pa. Superior Ct. 594.
    Counsel contend that the contract in this case (even exclusive of the form of printed matter).is not silent as to time but clearly expresses the intentions of the parties in regard to it, and that consequently the cases cited by counsel on the other side, and by the court itself, do not apply: Robson v. Mississippi River Logging Co., 43 Fed. Repr. 364; Western Union Tel. Co. v. Penna. Co., 64 C. C. A. 285; Pittsburg, etc., Ry. Co. v. Reno, 123 Ill. 273 (14 N. E. Repr. 195); Franklin Tel. Co. v. Harrison, 145 U. S. 459 (12 Sup. Ct. Repr. 900); Whiteman v. Fayette Fuel-Gas Co., 139 Pa. 492; Sewickley Boro. School Dist. v. Gas Co., 154 Pa. 539; Corbet v. Oil City Fuel Supply Co., 5 Pa. Superior Ct. 19; Gray v. Citizens’ Gas Co., 206 Pa. 303; s. c., 212 Pa. 473; Crescent Steel Co. v. Gas Co., 40 P. L. J. 316; Park Steel Co. v. Ry. Co., 213 Pa. 322.

      David A. Reed, of Reed, Smith, Shaw & Beal, with him John Gates, Jr., for appellee.
    — The contract was terminable at will by either party, upon reasonable notice, since its duration was left indefinite: Coffin v. Landis, 46 Pa. 426; Phila. & Reading R. R. Co. v. R. R. Co., 168 Pa. 357; Cumberland Valley R. R. Co. v. Ry. Co., 177 Pa. 519; Fuel Co. v. Plumb, 182 Pa. 463.
    The contract expressly provided for its termination at will by either party, at any time after May 1, 1886.
    If the parties in making the contract contemplated a supply of gas from the districts in which the Philadelphia company was then operating, the exhaustion of the gas in those districts operates to terminate the contract, because, first, it is the destruction of the subject-matter of the contract without the fault of the parties, and, second, the contract provides for its termination upon failure of the gas company’s supply through natural causes: Ward v. Vance, 93 Pa. 499.
    If the parties in making the contract contemplated a supply of gas from whatever districts the appellee might thereafter develop, regardless of their distance from Pittsburg, or the expense of bringing gas from them, then the contract was void as against public policy: Dunham v. Presby, 120 Mass. 285; Cardoze v. Swift, 113 Mass. 250; Evans v. Richardson, 3 Merivale, 469; Teoli v. Nardolillo, 23 R. I. 87 (49 Atl. Repr. 489).
    January 4, 1909:
   Per Curiam,

The decree is affirmed at the cost of the appellant on the findings and opinion of Judge Miller, specially presiding.