text:
    Buck v. McKeesport, Appellant.

      Evidence — Photographs—N egligence.

    1. Photographs to be competent evidence should be properly and carefully taken so that they will truthfully represent the place or the object. Before they are admitted in evidence there should always be preliminary proof of care and accuracy in the taking of them, and of their relevancy to the issue before the jury.
    2. In an accident case photographs taken three months after the accident, and showing a pile of stones which was alleged to have been the cause of the accident, are not admissible in support of the plaintiff’s case, where a witness for the plaintiff testifies that the pile of stones, which was alleged to have caused the accident, was removed three or four days after the occurrence.

      Negligence — Damages—Loss of earning power.

    3. In an action by a woman to recover damages for personal injuries it is not proper to admit evidence that prior to her marriage, which had taken place twenty-three years before the accident, plaintiff was engaged at labor and received a stated compensation for her services.

      Practice, C. P. — Trial evidence.

    4. It is the practice to permit counsel to recall a witness after a motion for a nonsuit to testify to something that has been inadvertently overlooked or omitted, but not to start anew to make out the case in chief. The matter, however, is largely discretionary with the trial court.

      Appeals — Evidence—Review—Reversal—Venire facias de novo.

    5. Where the appellate court in reversing a judgment on a verdict in favor of the plaintiff is of the opinion that great injustice might be done to one of the parties if it undertook to find the facts from the unsatisfactory evidence printed, the court will in addition to the reversal grant a venire de novo.
    Argued Oct. 27, 1908.
    Appeals, Nos. 74 and 75, Oct. T., 1908, by defendant, from judgments of C. P. No. 1, Allegheny Co., Sept. T., 1902, No. 155, on verdict for plaintiff in case of Jennie B. Buck, Administratrix of Robert J. Buck, deceased, and Jennie B. Buck v. City of McKeesport.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, .Potter, Elicin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ford, J.
    At the trial it appeared that Mrs. Buck was injured while driving a buggy along a street in the city of McKeesport. She claimed that the accident was caused by the wheel .of the buggy striking a pile of stones on the street.
    Plaintiff’s counsel offered in evidence the two pictures, exhibits Nos. 1 and 2.
    Mr. Rodgers: “Q. When was this picture, exhibit No. 1, taken? A. They were both taken three months after the accident.

      Defendant's counsel object to the admission of exhibits Nos. 1 and 2, as not having been properly proven, and object specially to exhibit No. 1 because it contains a view of something which would be material to this case, and not having been taken until three months after the accident the picture is misleading.
    Mr. Marshall: The purpose of offering these pictures is so that the jury may understand the location of the two streets, and the ground in the immediate vicinity to the scene of the action. They are .not offered for the purpose of showing any obstructions in the street, but in order to aid the jury in determining the case and construing the evidence.
    Mr. Rodgers: The answer to that is: If counsel desire to use a plan there would be no objection to producing a plan. This is not a plan. It is a picture, and a picture of the alleged scene of the action and the surroundings at a period three months after the date of the accident. Exhibit Nó. 1 contains at least one object that might have a bearing on this case, and the particular objection to it is, that the obstruction is shown upon the picture, existing at a particular place, and any evidence of an obstruction three months afterwards, at this stage of the case, is of no value, but is, on the contrary, misleading.
    Mr. Marshall: We will follow this by proving by Mrs. Buck, that she had these taken as soon afterwards as she was able to have them taken.
    The Court: Do you insist, Mr. Rodgers, on further proof as to how these were taken?
    Mr. Rodgers: We insist upon full proof of everything.
    The Court: Otherwise I think they are competent.
    Mr. Marshall: “Q. Mrs. Buck, after you were hurt on October 15, were you confined to your bed? A. Yes, sir, for over three months. Q. Did you have these pictures taken, or your husband? A. My husband went and got a photographer and had them taken. Q. Are you familiar with that locality? A. Yes, sir. Q. You said those pictures were fair representations of the place? A. Yes, sir.”
    Mr. Rodgers: “Q. When did you see the scene of the accident after the accident? A. I didn't see it, I suppose, for nine or ten months after. I was not down there. These pictures I seen as soon as they were taken.”
    Mr. Rodgers: We insist upon our objection.
    The Court: The objection is overruled and exception noted to defendant. The exhibits are admitted for the purpose of showing the place and the surroundings of the alleged accident, in so far as the surroundings refer to the streets, intersection of streets, and the buildings fronting on the streets. [3] Plaintiff was asked this question:
    “Q. Did you work before you were married?”
    Objected to by the defense as immaterial.
    Plaintiff’s counsel offer to show whether she did or not, for the reason that she is now left to her own resources, without a husband, and unable to do any manual labor of any kind, and if she worked before she was married, to show what ability she had, if any, as to showing that loss is sustained.
    Objected to by the defense as incompetent and irrelevant.
    The Court: Her permanent injury, if she be permanently injured, would revert to her use since the death of her husband. The objection is overruled and exception noted to defendant. [4]
    “Q. Did you work before you were married? A. Yes, sir; and when I was married to Mr. Buck my mother and I kept a restaurant. Q. What did you do?”
    Objected to by defense as immaterial and irrelevant.
    The Court: You may show that she followed some particular occupation.
    Mr. Marshall: I want to show what particular part she did of it. I am not asking what she made at it.
    Objected to by defense as immaterial and irrelevant.
    The Court: Objection overruled and exception noted to defendant. •

      “ Q. What part of the work did you do? A. I done the cooking and attended to the meals as they were ordered in. Q. And of course after you were married to your husband you attended to his housework, as you have told us? A. Yes, sir. Q. Did you ever work for any person on a salary?”
    Objected to by defense as irrelevant and immaterial.

      The Court: Objection overruled and exception noted to defendant.

      “A. Before I was married, and before my mother became a widow, I lived out, at $3.00 and $3.50 a week.” [5]
    Mrs. Jennie B. Buck, plaintiff, recalled in her own behalf, testified as follows:
    Mr. Marshall: “Q. Start in with the point that you said your horse was coming down the State road on a walk? A. Yes, sir.”
    Mr. Rodgers: What do you propose to prove?
    Plaintiff’s counsel propose to prove by the witness the manner in which she crossed the street, the manner in which she was driving down the street, and the speed at which the horse was going at the time.
    Mr. Rodgers: We object, because the witness has already testified on the subject, and she should not now be allowed to make another statement on the subject at this stage of the case. -
    The Court: I suppose the only matter you want to prove by the witness is what control, if any, she had over the horse.
    Mr. Marshall: “Q. Will you tell us what control you had of the horse, Mrs. Buck?”
    Mr. Rodgers: If the purpose is to contradict her own witness, then we add that to the objection.
    Mr. Marshall: We do not propose to contradict our own witness, but we do propose to tell our idea of the accident.
    The Court: The objection is overruled. Exception to defendant. [6]
    Verdict and judgment for the administratrix for $4,520 and for Mrs. Buck for $4,120. Defendant appealed.

      Errors assigned among others were (1) in refusing binding instructions for defendant; (4-6) above instructions, quoting them.

      W. B. Rodgers, with him W. E. Newlin, for appellant,
    cited as to the photographs: Beardslee v. Columbia Twp., 188 Pa. 496.

      Body P. Marshall, with him, Thomas M. Marshall and George O. Calder, for appellees.
    January 4, 1909:
   Opinion by

Mr. Justice Mestrezat,

The subject of the third assignment of error is the admission in evidence of exhibits Nos. 1 and 2, which are photographs of the locus in quo. The learned judge in admitting the evidence said : “ The exhibits are admitted for the purpose of showing the place and the surroundings of the alleged accident, in so far as the surroundings refer to the streets, intersection of streets, and the buildings fronting on the streets.” The photographs were taken three months after the accident and were authenticated only by the testimony of the appellee herself, who said, replying affirmatively to a question of her counsel, that “ those pictures were fair representations of the place.” She did not see the place for nine or ten months after the accident happened. If it be conceded that the photographs were properly authenticated, yet they were clearly not admissible in evidence because they showed a pile of stone at the place where the appellee alleges there was a stone pile which caused her injuries, and her own witness, Gibson, testified that the stone pile which it is alleged caused her injuries, remained at the place only three or four days after the accident, when it was removed by a colored man who “ cleaned it off.” If, therefore, there was a stone pile at the place shown in the photograph it was not the same pile that was there at the time of the accident, and it necessarily follows that it was put there by some person after the removal of the stone pile which, it is alleged, caused the appellee’s injuries. Whether the pile of stone shown in the photograph is of the same dimensions as that which upset the appellee’s buggy or whether it was greater or less, the evidence does not disclose. But her own evidence does show that it was not the same pile of stone, and hence the photographs, which the learned judge admitted “for the purpose of showing the place,” show a condition of affairs that did not exist at the time of the accident, but was created by someone thereafter and for a purpose not disclosed by the evidence. The existence of a stone pile at this place at the time of the accident was denied by the appellant and was the most material question in the case, and it is apparent that the appellee could not show the fact by producing a photograph which showed another and different pile of stone at the place of the accident than the pile there at the tinié the appellee was injured.

The photographs were offered and admitted not simply for the purpose of showing the streets, buildings, etc., but “ the place ” of the accident. They Avere, therefore, misleading, as they showed a pile of stones on the street at the place of the accident which, although the appellee alleges her buggy was upset by a stone pile there, her own evidence shows was not the stone pile at the place Avhen the accident occurred. It may also be added that they do not show clearly “ the streets and intersection of streets.” Possibly, as explained by the parol testimony, the jury could understand the location of the streets, but the photographs themselves did not give an adequate or clear representation of the streets at the place of the accident. This is manifest from an examination of the blue print which Avas in evidence and from which a jury would have no difficulty in understanding thoroughly and intelligently the locus in quo.

The appellee apparently made no effort to produce the best evidence of the accuracy of these photographs and show that they fairly and truthfully represented conditions at the place of the accident. It does not appear that there was any reason for not calling the photographer who photographed the place, and the information on the subject elicited from the appellee was so brief and general that it can scarcely be called an authentication of the photographs. Photographs to be competent evidence should be properly and carefully taken so that they will truthfully represent the place or the object. For, as said in Cunningham v. Fairhaven, etc., Ry. Co., 72 Conn. 244. “ it is well known that a photograph may, through the Avant of skill of the photographer, or through an intentional or skillful manipulation be inaccurate or misleading.” And in expressing the same thought, this court said in Beardslee v. Columbia Township, 188 Pa. 496, 502: “ In careless, or inexpert, or interested hands they are capable of very serious misrepresentation of the original. Before they are permitted to be used in the trial, therefore, there should always be preliminary proof of care and accuracy in the taking of them, and of their relevancy to the issue before the jury.”

The evidence, the admission of which is the subject of th¿ fourth and fifth assignments of error, should not have been admitted. At the timé of her husband’s death, a short time prior to the trial, the appellee had been married twenty-three years, and her own testimony, offered and admitted under objection, showed she was engaged at labor before she was married, and the compensation she received. The purpose of the testimony, as stated by her counsel, was “ to show what ability she had, if any, as to showing what loss she sustained.” In his printed brief, the counsel suggests that “ this evidence was properly admitted, not for the purpose of showing her earnings, but for the purpose of showing her capacity to earn a living, and no question was asked as to what those earnings were.” We think the evidence showed the appellee’s earning capacity at a period entirely too remote to aid the jury in ascertaining her capacity for work at the time of the accident. She was about forty-six years of age at the time of her husband’s death and, therefore, was about twenty-three at the time she was married. What her salary or wages were twenty-three ago would be a very unsafe basis on which to determine the value of her services at this time. During that period sickness or other causes may have entirely deprived her of any earning capacity. As affecting the damages sustained by the appellee, the evidence must show her earning capacity and her ability to work at the time of the accident.

The fourth and fifth assignments are sustained.

The orderly conduct of the trial required the appellee to introduce her testimony in chief to sustain her cause of action, and before she had rested and the motion for the nonsuit had been made. That the evidence offered after the motion was made was for the purpose of introducing testimony which should have been offered in chief is shown by the remark of her counsel, in reply to the defendant’s objection, that, “ We do propose to tell our idea of the accident.” It is the practice to permit counsel to recall a witness after a motion for a non-suit to testify to something that has been inadvertently overlooked or omitted, but not to start anew to make out the case in chief. As the matter, however, is largely discretionary with, the trial court, we will not sustain the assignments alleging error in this respect.

This appears to be a close case on the facts, and the unsatisfactory manner in which the case was tried leaves us in doubt whether it should have gone to the jury. As affecting the vital question in the case, the learned trial judge says of the appellee’s testimony : ITer testimony as to striking the stone pile is not very definite.” The jury may have been able to determine the facts from the testimony given on the trial, but it cannot be satisfactorily done by an appellate court in reading the testimony. As said in Kupp v. Hummel, 199 Pa. 90, 91: “ The examination of the witness as thus conducted may have been quite satisfactory and clear to those who saw as well as heard him testify, but to a reader of the testimony as it appears in the paper-book, it is confusing and unintelligible.” In testifying, the witnesses would frequently locate objects and places by referring to the plan or photographs without describing them so the description would appear on the stenographer’s notes. This, as we have said, may have been sufficiently intelligible to those who saw and heard the witness, but conveys no definite information to us. As an illustration of the manner in which the witnesses were permitted to testify, we quote the answer of Mrs. Buck to a question propounded by appellant’s counsel as follows : “ Right along here (indicating). The dirt was thrown out and there was timber about on here (indicating). The dirt was thrown over that way (indicating).” It is quite apparent, therefore, that we are not in a position to determine, as requested by the appellant, whether “ under the pleadings and evidence in the case the verdict should be for the defendant.” We might do great injustice to one of the parties if we were to undertake to determine the facts of this case from the evidence submitted in "the paper-book.

The third, fourth and fifth assignments of error are sustained, and the judgment is reversed with a venire facias de novo.


source: Caselaw Access Project

author: Mr. Justice Stewart, Mr. Justice Potter,

license: Public Domain

text:
    Shallenberger v. Standard Sanitary Manufacturing Company, Appellant.

      Contract — Building contract — Stipulation for bond — Rescission—Damages.

    A building contract sealed and delivered stipulated for a satisfactory bond. The contractor without delivering the bond started on the work. Subsequently on the contractor being requested to furnish a bond he told the owner’s manager that application had been made to a trust company in another state for a surety bond in the stipulated sum. To this statement the manager said, “All right.” Two weeks later the owner gave the contractor three days’ notice to present the bond, or the work would be given to another contractor. Five days thereafter the bond was tendered, but the owner’s manager stated that they intended to do the work themselves, and did not wish to make the change again. The contractor was denied permission to proceed with the work on the premises. He thereupon brought suit. Held (1), that the case was for the jury as to whether there was a reasonable compliance by the contractor with the owner’s demand; (2) that it was not error to refuse consideration of the fact that the bond tendered was the bond of a foreign corporation, inasmuch as the owner did not put its refusal of acceptance on any such ground; and (3) that the damages were to be ascertained by taking the entire cost of the building to the contractor and deducting this sum from the contract price.
    Brown, Potter and Elkin, JJ., dissent.
    Argued Oct. 27, 1908.
    Appeal, No. 102, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 996, on verdict for plaintiff in case of F. E. Shallenberger v. Standard Sanitary Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat,. Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit for breach of contract. Before Kennedy, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial counsel for defendant offered to prove by a witness, that the plaintiff was not financially able to carry out his contract; that he was not attending to the contract in any way, was wasting time and delaying, this for the purpose of showing why he was given what otherwise might be construed to be a short notice to deliver his bond, and to show that the plaintiff could not perform his contract.
    Objected to as incompetent and irrelevant, for the reason that any lack of financial responsibility of the plaintiff was supplied and intended to be supplied by the bond to be given, and that the time had not arrived in this contract, or any of the subcontracts, when the financial responsibility of this plaintiff could be brought into question.
    Objection sustained. Exception. [2]
    Defendant presented these points:
    7. Under the writing dated April 27, 1905, prepared as the contract between the parties, no operative contract could exist between the parties until the delivery and acceptance of the bond provided for therein, and the plaintiff, having failed to produce the bond in accordance with the notice of June 5, 1905, the contract did not become operative, and the plaintiff cannot recover thereon. Answer: Refused. [1]
    5. If the jury should find for the plaintiff, they cannot take into consideration in establishing the damages, the profits which plaintiff would have realized had he completed his contract, basing such profits on the difference between his contract price with the defendant company and the prices at which he had let subcontracts to others. Answer: Affirmed and explained. This point is affirmed, I have so instructed you substantially. You are not bound by those prices that these subcontractors had given him, and to which he had testified, but you are to find out what would be the reasonably fair price for the work to be done, and if you find the prices of these subcontracts are reasonably fair, then you take those as a basis, but not otherwise. [14]
    .Verdict and judgment for plaintiff for $4,000. Defendant appealed.

      Errors assigned were (1, 14) above instructions, quoting them; (2) rulings on eyidence, quoting the bill of exceptions; and (16) refusal of binding instructions for defendant,

      John P. Hunter, of Lyon, Hunter & Burke, for appellant.—
    The covenant of the plaintiff to give a bond constituted a condition precedent and plaintiff acquired no right under the contract until said bond was given. Defendant had a right to terminate contract at any time for failure to give bond: Smith v. Molleson, 148 N. Y. 241 (42 N. E. Repr. 669); Flynn v. Dougherty, 26 Pac. Repr. 831; Dills v. Dougherty, 36 Ky. 253; Roberts v. Brett, 11 H. L. C. 337.
    The court erred in excluding testimony on the part of defendant to show plaintiff’s financial irresponsibility and his neglect of the work as bearing on the reasonableness .of the length of time given by said notice of June 5: Hickman v. Shimp, 109 Pa. 16; Sims v. Everhardt, 102 U. S. 300.
    The court erred in instructing the jury to find whether the time from the receipt of the notice by plaintiff until June 8, was a reasonable time: Zuck v. McClure, 98 Pa. 541; Evesson v. Ziegfeld, 22 Pa. Superior Ct. 79; Tindal v. Brown, 1 T. R. 167; Morgan v. McKee, 77 Pa. 228.
    The court erred in refusing to allow testimony on the part of the defendant to show that the surety company upon plaintiff’s bond was not registered in this state. The court erred in holding and so charging that the measure of damages was the difference between the contract price and the fair prices of defendant’s subcontracts: United States v. Speed, 75 U. S. 77.

      James Balph, with him R. A. Balph, for appellee.
    — Acquiescence in acts inconsistent with a clause of forfeiture will dispense with a right to claim it: Lauman v. Young, 31 Pa. 306; McNish v. Reynolds, 95 Pa. 483.
    Where strict performance of a contract has been waived, neither party can suddenly take advantage of his right to the literal performance and rescind for the failure of such performance: Forsyth v. North American Oil Co., 53 Pa. 168; Whitlow v. Moore, 114 Pa. 451.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

It is not correct to say that the contract here was incompíete and inoperative so long as the bond stipulated for had not been given by the contractor. With the sealing and delivery of the written agreement the contract at once became operative, and thereafter, for a breach by either of the parties in any of its terms, the other would have appropriate remedy. One of the terms required that the contractor should “furnish satisfactory Trust Company bond in the sum of twenty thousand dollars ($20,000) for the faithful performance of all and singular his covenants, and for the protection of the parties of the first part against mechanics’ liens, and all damages, losses, delays, or other injury sustained by reason of the failure of the said party of the second part to keep and perform all his covenants.’’

By the contract executed April 27, 1905, plaintiff undertook for a consideration of $64,692 to remove from a certain lot in the city of Allegheny owned by defendant company, the buildings then standing and occupied by the defendant company, and erect thereon a pattern shop and storage warehouse, and a warehouse building, and complete the same by September 1, following. Without having given the bond required, plaintiff was allowed to enter at once upon the work. He proceeded without delay to tear down and remove the old buildings, and prepare the ground for constructive work. The defendant would have been entirely within its rights, had it denied possession of the premises until bond had been given; and for a failure of the plaintiff to furnish the bond within a reasonable time, it would have been justified in rescinding the contract. But possession having been given, and the work having been entered upon, while the defendant’s right to demand the bond thereafter continued, as well as its rights to rescind for default by the plaintiff, yet rescission could only be justified as proper regard was paid to the rights of the plaintiff under conditions existing at the time. In a communication addressed to plaintiff under date of May 19, Mr. Reed, general manager for the defendant company, requested that the latter file his bond with either the secretary of the company or its architect. The day following the receipt of this letter, the plaintiff testified that he called on Mr. Reed, and told him that he had made application to a trust company in West Virginia for a surety bond, but because of the absence of a party whom he wished to see in connection with it, he was delayed; that he would get it as soon as possible, and would not ask any money on the contract until the bond had been delivered to the company. To this representation Mr. Reed replied, “All right.” The plaintiff thereafter continued his work under the contract. By June 5 he had the ground cleared, had eight or ten car loads of lumber on the ground, and was ready to proceed with the erection of the buildings. On that day defendant gave the plaintiff a written notice which reads as follows: “Under the terms of the agreement dated April 27, 1905, prepared for construction of buildings in Allegheny City for S. S. M. Co., it is provided that you shall give a satisfactory bond in the sum of $20,000 for the faithful performance of the work. As the contract cannot be closed till this is done, you are hereby notified that unless the bond is delivered by Thursday, June 8, 1905, by twelve o’clock noon, we shall let the work to another contractor.”. If, as here asserted, the contract had not been closed, the defendant was under no obligation to the plaintiff with respect to it; it was nothing but an open negotiation from which either could withdraw at pleasure. This was a strange theory to adopt, and may explain in a measure the summary process attempted by the defendant. As we have said the contract was an executed one, binding upon both parties, which neither could rescind except for justifying reasons. Treating the communication, however, as a notice that the company would rescind the contract, unless the bond were furnished by noon of June 8, — and the plaintiff so understood it, — the one question is, was the time allowed under the notice reasonable in view of all the circumstances of the case? The plaintiff testified that at the time the notice was received his application for a surety bond of the Citizens’ Trust & Guarantee Co. of Parkersburg, W. Va., had been approved by the company. Under date of June 8 — though it must have been the 9th — he wrote to the defendant advising that this bond had been executed by the trust company the day previous, June 8, and would arrive by due course of mail. On either the next day or that following, plaintiff tendered this bond to the defendant’s general manager, Mr. Dawes, who replied, “Well, it is all right, but as we have made the change now, we intend to do the work ourselves, and don’t wish to make the change again.” Thereupon, plaintiff was denied permission to proceed with his work on the premises. It is complained that the court submitted to the jury the question of reasonable notice to plaintiff of the intention to rescind, instead of deciding it as a matter of law. This assumes that there was no dispute as to the facts on which plaintiff relied to justify or excuse his delay in furnishing the bond. It would unduly extend this opinion if we were to refer in detail to the many and marked contradictions which appear in the testimony. Let a single instance suffice. In determining whether a three-day limit for the filing of the bond was affording the plaintiff a reasonable time, what preceded the giving of the notice was as much for consideration as what followed. That the reasonableness of the time depended on the situation and circumstances of the parties at the time, is true; but whatever in the conduct of either had contributed to the situation so far as concerned the other, was proper matter of inquiry. The plaintiff immediately after the first written request for a bond, had told the defendant’s general manager that application had been made to the trust company in Parkersburg for a surety bond in the stipulated sum. If in that conversation the manager told plaintiff what the latter says he did, a waiver of the right to require prompt delivery of a bond, in consideration of plaintiff making no pressing demand for money or any payment on his contract before delivery of the bond, might well be inferred. If there were such waiver, then when the notice of June 5 was given, plaintiff could not be said to be in default. A three days’ notice to one who in open disregard of his covenants, and in spite of repeated demands for compliance, was in default, might well be regarded as reasonable; while such a requirement would be wholly unreasonable with respect to another whose delay had been with the acquiescence of the party having a right to the bond. Did the conversation occur as plaintiff says, or was it as the general manager testified? Certainly what passed between these parties was relevant, and it was wholly for the jury to determine what the conversation was, and its effect. So, too, in regard to other relevant facts. The facts being undetermined a submission to the jury was unavoidable.

From what we have said as to the real and only issue in the case, it results that no error was committed in rejecting defendant’s offer to show plaintiff’s financial condition. Whatever that condition was, it did not prevent plaintiff from procuring the required bond and tendering it to defendant on the day following defendant’s rescission. The question was whether that was a reasonable compliance with defendant’s demand. Nor was it error to refuse consideration of the fact that the bond tendered by plaintiff was a bond of a foreign corporation. Defendant 'did not put its refusal of acceptance on any such ground, but solely on the ground that the bond had not been tendered in time. Not only so, but when defendant, weeks before, was advised that plaintiff had applied to this company for a surety bond to meet the requirements of his contract, no such objection was made. This fact may not have required the company to accept such bond; but if rejected finally for any such reason, the plaintiff would have been entitled to further time to procure another.

The measure of damages the jury were instructed to observe was a correct one. Plaintiff had made subcontracts for two-thirds of the material required for the construction of the building, and offered testimony to show what additional expenditure would be required to complete the buildings in accordance with the contract. The appropriation of these subcontracts by the defendant company is conclusive as to the cost of the material embraced, and the testimony as to the additional cost required was convincing to the jury. They were instructed by the court to estimate from these data the value of plaintiff’s contract, first ascertaining from the evidence what the entire cost of the building would be to the plaintiff, and deducting this sum from the contract price. If the defendant had no right to rescind the contract plaintiff was entitled to compensation; and the measure of damages adopted was the only one, depending upon the sufficiency of the evidence, by which this could be determined. The assignments of error are overruled.

Judgment affirmed.

Mr. Justice Potter,

dissenting:

I am unable to agree with the view of the majority of the court in this case. An essential requirement of the proposed contract was that the contractor should furnish bond in the sum of 120,000, to insure the faithful performance of the work. This was not one of the things to be done or furnished as the work progressed; but it was a prerequisite; something required in advance of the performance of the work which it was to guarantee. Some six weeks passed after the signing of the agreement, and no such bond was furnished by the contractor. The defendant company might well have refused permission to the contractor to enter upon the premises until he had given the security he had agreed to furnish. But instead of standing sharply upon its rights in this respect, it indulged the plaintiff further by allowing him to make a start upon the work, at the same time warning him to file the bond within three days. This would have been ample time in which to procure and file the bond, if the financial condition of the plaintiff was sound or his credit good. But instead of procuring a bond with satisfactory sureties, as required by the .agreement, the plaintiff finally offered as a compliance with his obligation, the bond of a foreign corporation not authorized to do business in the state of Pennsylvania. Such a bond was of course unsatisfactory to the defendant company, and it refused to accept ifc, or to allow plaintiff to proceed further with the work. In so doing the defendant was acting clearly within its rights under the contract. Surely it was not obliged to run the risk of placing a large and important contract in the hands of an irresponsible contractor, who had failed to furnish the bond agreed upon. Under the admitted facts of the case I can see nothing which should properly have been submitted to a jury. The result was to give to the plaintiff the profits of a contract which he never carried out in accordance with its terms, and for work which he never performed, and which he had no right to even attempt to perform until he had furnished the bond. I would reverse the judgment.

Brown and Elkin, JJ., concur in this dissent.


author: Mr. Justice Stewart,

text:
    Morgan’s Estate

      (No. 1).

      Trusts and trustees — Spendthrift trust — Estate in fee simple.

    1. Where a married woman by her will gives her estate, real and personal, to a trustee for the benefit of her husband with-the usual provisions creating a spendthrift trust, and further directs that after the expiration of three years the trustee shall convey the real estate, or deliver the personal property to any person whom the husband may direct, and if the husband makes no direction to continue the trust until the death of the husband, to convey and deliver the estate to whom he may appoint by will, or in default of appointment to his heirs at law, the husband takes an estate in fee, and if he continues the estate in the hands of the trustee until his death his creditors are entitled to payment out of the estate.
    2. The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, cujus est disponere. It allows the donor to condition his bounty as suits himself, so long as he violates no law in so doing. When a trust of this kind has been created, the law holds that the donor has an individual right of property in the execution of the trust; and to deprive him of it would be a fraud on his generosity. For the law to appropriate a gift to a person not intended would be an invasion of the donor's private dominion.
    3. Whatever a chancellor would decree to be done shall be considered as though it were actually done.
    4. A man shall not be the real owner of property with full right to deal with it as he pleases, taking the full income of it to his own exclusive use and keep the same from the claims of his creditors. What he cannot do for himself in this regard cannot be done for him by another.
    Argued Oct. 28, 1908.
    Appeal, No. 228, Oct. T., 1908, by A. Pinedo, from decree of O. C. Allegheny Co., Dec. T., 1907, No. 122, dismissing exceptions to adjudication in Estate of Martha B. Morgan.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Exceptions to adjudication. Before Hawkins, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      S. W. Cunningham, with him Sion B. Smith, for appellant.—
    The will created a fee in Morgan: McFadden v. Drake, 79 Pa. 473; Lawrence’s Est., 136 Pa. 354; Mackason’s App., 42 Pa. 330; Hahn v. Hutchinson, 159 Pa. 133; Keyser’s App., 57 Pa. 236; Van Leer v. Van Leer, 221 Pa. 195; Ehrisman v. Sener, 162 Pa. 577.

      James R. Sterrett, of Patterson, Sterrett & Acheson, with him JohnD. Evans and William H. McClung, for appellees.
    — Equity will preserve such a trust to give effect to the donor’s right of dominion over his property: Dodson v. Ball, 60 Pa. 492.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

By her will, Martha B. Morgan, testatrix, gave her entire estate, real and personal, to the Safe Deposit and Trust Company of Pittsburg, in trust, exclusively for the use and benefit of her husband, Benjamin W. Morgan. The terms of the trust directed that the trustee — adopting the language of the will— “ Shall and will receive and hold my personal estate for the period of three years after my decease, and permit my husband Benjamin W. Morgan to use the same, and shall and will during the aforesaid period, collect and receive the rents and profits of my real estate (if any), and after paying the taxes, and the necessary expenses of keeping up the improvements, and the insurance upon the same, shall and will pay over the balance of said rents and profits into the hands of said Benjamin W. Morgan, or such person or persons as he may designate to receive the same; or at the option of said company permit the said Benjamin W. Morgan to occupy said real estate during the period aforesaid; but so that none of my estate, real or personal, shall be in the control or liable for the debts or engagements of the said Benjamin W. Morgan. And upon the further trust and confidence that the said Safe Deposit and Trust Company, after the lapse of the period aforesaid (or sooner if desired by said Benjamin Morgan) shall and will convey in fee any or all my real estate, and deliver any or all of my personal property absolutely, to such person or persons as the said Benjamin AM. Morgan shall by any writing under seal appoint.” The will further provided that in case the husband failed to so appoint, he was to continue to enjoy during his life the use of the personal property, and to receive the rents of the real estate, but so that none of the estate should be liable for his debts or engagements. It gave him the right to appoint by last will, and in the event of failure to appoint, the estate was to go to his legal’ heirs. This appeal is by a creditor of Benjamin AM. Morgan from the decree distributing the estate of Martha B. Morgan; his contention being that Benjamin AM. Morgan took an absolute estate under the will of the said Martha B. Morgan.

The question we have to consider is the sufficiency of the spendthrift trust attempted to be created under the will of Martha B. Morgan. The law rests its protection of what is known as a spendthrift trust fundamentally on the principle of cujus est dare, ejus est disponere. It allows the donor to condition his bounty as suits himself, so long as he violates no law in so doing. AMhen a trust of this kind has been created, the law holds that the donor has an individual right of property in the execution of the trust; and to deprive him of it would be a fraud on his generosity. For the law to appropriate a gift to a person not intended would be an invasion of the donor’s private dominion: Holdship v. Patterson, 7 AMatts, 547. It is always to be remembered that consideration for the beneficiary does not even in the remotest way enter into the policy of the law; it has regard solely to the rights of the donor. Spendthrift trusts can have no other justification than is to be found in considerations affecting the donor alone. They allow the donor to so control his bounty, through the creation of the trust, that it may be exempt from liability for the donee’s debts, not because the law is concerned to keep the donee from wasting it, but because it is concerned to protect the donor’s right of property. Does the will of this testatrix express direction or purpose that the property given her husband thereunder shall in any and every event be exempt from liability for his debts ? If it does, and no rule of property is transgressed in connection therewith, the law will see to it that her wishes and directions are observed. Of course, the testar trix had exemption from liability for debt in mind, and she expressly provides for it; but she provides for it in a way that makes it quite manifest, that the only purpose she had was to provide her husband a shield equal to a defense of the property she was about to leave him against the demands of his creditors which he might use if he chose, and abandon when he was so disposed. What other meaning can be gathered from the provision requiring the trustee, after the lapse of three years, or sooner if desired by the said Benjamin W. Morgan, to convey in fee any or all the real estate, and deliver all the personal property absolutely, to any person or persons the said Benjamin W. Morgan may appoint in writing under seal? The termination of the trust — and that is what this provision contemplates, and it is not in any way qualified by other expressions in the will — would necessarily vest the absolute dominion and ownership of the property in the husband, and with such vesting the exemption from liability would cease. Had the will provided that the trust was to continue so long as there was any existing indebtedness of the husband enforceable against him, it would have been another thing ; but the time of its determination was left entirely in the discretion of the husband. At once upon the will becoming operative, it was in his power to destroy the trust and acquire full power of alienation. True, he did not choose to exercise the power given him in this regard; but that is wholly immaterial. So long as the trust continued after the right to terminate attached, the exemption from liability for his debts which the trust was intended to secure, survived, not because it was so directed by the testatrix, but solely because it was the pleasure of the husband that it should so continue. The very fact that power is given which may be used by the cestui que trust to apply the fund in whole or in part to the payment of his debts, is an investiture pro tanto of ownership. We repeat, spendthrift trusts are allowed not because the law concerns itself for the donee; he may conserve or dissipate as he pleases ; the law’s only concern is to give effect to the will of the donor as he has expressed it. When a donor substitutes for his own absolute right of disposition, the pleasure of the donee, the gift is absolute.

The provision in the will referred to is entitled to a still larger significance. The right absolute given the donee to require the trustee to convey the real estate in fee, and surrender the personal estate absolutely, strips the trust of every active duty and of every right of control, beyond the pleasure of the donee. The result, as we have said, is not dependent on the exercise of the right; it inheres in and results from the very power itself. It determines the quality of the donee’s estate, and operates to merge the two estates, legal and equitable. The true test, as said in Rife v. Geyer, 59 Pa. 393, is whether a court of equity would decree a conveyance of the legal title. Can there be any question that equity would have compelled a conveyance in this instance, and a surrender of the entire estate ? To have refused it would have been to disregard a positive direction of the testatrix. It is an invariable rule that whatever a chancellor would decree to be done, shall be considered as though it were actually done. While a merger of the two estates here would have rendered the property liable for the debts of the husband, it cannot be said that such result would defeat the object of the donor, since the merger is exactly what she directed to take place whenever her husband demanded it. In Keyser’s Appeal, 57 Pa. 236, there was a trust of a fee giving the cestui que trust the beneficial estate, with a provision that it should not be liable for his debts. This provision, it was there said, if there had been no trust, would have been repugnant to the estate devised as a condition not to alien. It was stricken down because the cestui que trusts had an equitable estate in fee, with full power to alien or devise, and because it was an attempt to deprive their estate of a necessary lawful incident, made so by statute and consonant with every reason of justice and policy. It is impossible to avoid .the conclusion that in the present case it was an attempt to give title to property without the incident of ownership. This the law will not sanction. In Ilahn v. Hutchinson, 159 Pa. 133, it is said: “ The whole course of reasoning is that a man shall not be the real owner of property with full right to deal with it as he pleases, taking the full income of it to his own exclusive use and keep the same from the claims of his creditors. What he cannot do for himself in this regard, cannot be done for him by another. When the grant comes from another, and yet has these incidents, it is as obnoxious to the foregoing objections as when it arises upon his own grant to third persons as trustees for him.”

The right of alienation in the present case was given the donee in unmistakable and unrestricted terms; and this of itself defeats the attempted trust. The assignments of error are sustained, the decree of the orphans’ court is reversed, and it is now directed that distribution be made in accordance with the views here expressed.


author: Me. Justice Stewart,

text:
    Morgan’s Estate
    (No. 2).

      Trusts and trustees — Spendthrift trust — Estate in fee simple — Appointment by will — Heirs at law.

    Where a married, woman by her will gives her estate, real and personal, to a trustee to hold for the benefit of her husband with the usual provisions creating a spendthrift trust, with power, however, in the husband to end the trust at any time, but if he failed to do so, to continue the trust until his death, and to deliver and convey the estate to whom ,he may appoint by will, or in default of appointment to his heirs at law, the husband takes the estate in fee, and if the trust is continued until his death the estate goes to his legatees and devisees and not to his heirs at law.
    Argued Oct. 28, 1908.
    Appeal, No. 227, Oct. T., 1908, by Sarah A. Morgan, from decree of O. C. Allegheny Co., Dec. T., 1907, No. 122, dismissing exceptions to adjudication in Estate of Martha B. Morgan, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Appeal dismissed.
    Exceptions to adjudication.
    The facts are stated in the report of the case of Morgan’s Estate (No. 1), ante, p. 228.

      Error assigned was in dismissing exceptions to adjudication.

      A. M. Imbrie, for appellant.

      John D. Evans, with him Patterson, Sterrett & Acheson and William, H. McClung, for appellee.
    January 4, 1909:
   Opinion by

Me. Justice Stewart,

The appellant claims to participate in the distribution as an heir at law of Benjamin W. Morgan, deceased, to whom was given a life estate under the will of Martha B. Morgan, with power to appoint. The will provided that in case of failure to appoint, the estate was to go to “the right heirs of Benjamin W. Morgan.” Though Benjamin W. Morgan died testate, the contention is that the right of appointment was not exercised. The appeal assumes that the trust attempted to be created under the will of Martha B. Morgan was valid and effective. In the opinion just handed down in the appeal of Pinedo from the same distribution, we held that the estate given Benjamin W. Morgan under the will of his wife was absolute. The estate was his, and it passed under his will to his beneficiaries,' not as appointees, but as his own legatees and devisees. The case calls for no further discussion.

The appeal is dismissed at costs of appellant.


text:
    O’Donovan v. Philadelphia Company, Appellant.

      Negligence — Explosion of gas — Evidence—Approximate cause — Question for fury.

    Where the only evidence as to the cause of an explosion of natural gas, which injured plaintiff’s house, is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would be adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions point to the cause to which defendant’s responsibility attaches, with such a degree of certainty as would justify a jury in finding it to be the approximate cause. If, however, it appears that on the day before the accident there was a break in the main which caused gas to enter plaintiff’s house, that this break was repaired before the accident, that three days after the accident gas again escaped at the point where the break occurred, and an examination showed that the repair had been negligently done, the case is for the jury.
    Argued Oct. 28, 1908.
    Appeal, No. 182, Oct. T., 1908, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 1,034, on verdict for plaintiff in case of William O’Donovan, in his own right and for the use of the German Insurance Company of Freeport, Illinois, The Armenia Insurance Company of Pittsburg and the Home Insurance Company of New York, v. Philadelphia Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a house caused by an explosion of natural gas. Before Macfarlane, J.
    At the trial it appeared that on April 10, 1902, plaintiff’s house was destroyed by an explosion of natural -gas. On the day before the accident gas was discovered in plaintiff’s house, and a break was found in the service pipe in the street. This break was repaired and the gas in the house ceased. Subsequently the explosion occurred. Three days afterwards gas again escaped from the pipes at the point where the break had occurred, and upon examination it was found that the repair had been improperly made.
    The court submitted the case to the jury.
    Verdict and judgment for plaintiff for 116,867.98. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      David A. Reed, with him Reed, Smith, Shaw & Beal and John Gates, Jr., for appellant.- —
    There was not sufficient evidence to submit the case to the jury: Ott v. Boggs, 219 Pa. 614; Alexander v. Pennsylvania Water Co., 201 Pa. 252; Snodgrass v. Carnegie Steel Co., 173 Pa. 228.

      Wm. S. Dalzell, of Dalzell, Fisher & Hawkins, with him Chantler & McClung, for appellee.
    — The case was for the jury: Koelsch v. Philadelphia Co., 152 Pa. 355; Stoughton v. Natural Gas Co., 159 Pa. 64; Baker v. Gas Co., 157 Pa. 593; Heh v. Consolidated Gas Co., 201 Pa. 443; Henderson v. Allegheny Heating Co., 179 Pa. 513; Hartman v. Gas Co., 210 Pa. 19; Shirey v. Consumers’ Gas Co., 215 Pa. 399.
    January 4, 1909:
   Opinion by

Mr. Justice Stewart,

The plaintiff’s evidence showed a condition existing a day before the accident, with respect to the gas main and service pipe, at the point of connection between the two — both under exclusive control of the defendant company — which resulted in an uncontrolled discharge of gas in the plaintiff’s house. Had nothing been done to correct this condition, it will hardly be questioned that the explosion which so soon thereafter followed and wrecked the plaintiff’s house, could have very safely been referred to this defective condition of defendant’s line of pipes; that is to say, a cause adequate would have appeared, which, in the absence of any evidence of other sufficient cause, would have warranted a finding by the jury that the explosion resulted from the defect shown to have existed. This circumstance marks a clear distinction between the present case and that of Ott v. Boggs, 219 Pa. 614.

We held in the latter case that where the only evidence as to the cause of the accident is such as is derived by inference from conditions existing after the occurrence, and these conditions suggest several causes, either of which operating by itself would be adequate to the result, and the defendant is without responsibility except as to one, there can be no recovery unless the conditions point to the cause to which defendant’s responsibility attaches, with such a degree of certainty as would justify a jury in finding it to be the approximate cause. The evidence in the present case as to conditions existing the day before the accident has decided significance. Except for this, the plaintiff’s evidence would afford ground for conjecture as to the cause of the accident, but nothing more. The plaintiff’s contention was that the break in the connection between the service pipe and the street main was improperly and negligently repaired, and that another break in the same place occurred in consequence. To this circumstance he ascribes the explosion in his house. That the cause, if it existed, was adequate, must be regarded as fairly established. Did it exist? The third day after the explosion it was brought to the defendant’s attention that gas was escaping from the pipes at the point where the break had occurred before; and upon examination it was found that what had been done by. way of repair had been undone, and practically the same condition existed at that point as before had resulted in a flow of gas into plaintiff’s house. Here were facts which at least furnished a basis for a reasonable inference that the cause of the explosion was the broken connection between service pipe and main; and this brought the plaintiff’s injury within the relation of cause and effect legally to be attributed to the alleged negligence of defendant. This inference having arisen, it remained until overcome by countervailing evidence; and whether it was so overcome was a question for the jury. Defendant’s effort was to overcome it by advancing other theories to account for the explosion, based largely, if not entirely, upon conditions' found to exist after the accident. It cannot be said that either of the theories so advanced was without support; but this did not make the verdict of the jury conjectural as to the cause of the accident. The jury was specifically instructed that the defendant was not required to show how the accident occurred, but that that duty rested on the plaintiff; yet, they were told, if they found that it occurred in either of the ways suggested by defendant, the plaintiff could not recover; and further, that if plaintiff had not shown facts from which they could reasonably find what the cause was, that they could not render a verdict on speculation. The appeal raises a single question — should the motion for judgment non obstante veredicto on the whole record, have prevailed? We are of opinion that the motion was properly refused. The case was for the jury.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Weaver, Appellant, v. Carnegie Steel Company.

      Negligence — Licensee or guest — Visitor to steel plant.

    Where a party of 200 men visit a steel plant for their own pleasure and gratification, and the steel company furnishes them with a guide, and one of the party steps outside of the path chosen, which was about twenty-five feet wide, and falls through an aperture in,the floor left open for the operation of the works, and is injured, such person being a mere licensee or guest, assumes the ordinary risks of a visit to such a place, and cannot recover from the steel company for his injuries.
    Argued. Oct. 28, 1908.
    Appeal, No. 183, Oct. T., 1908, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1904, No. 472, on verdict for defendant in case of Joseph Weaver v. Carnegie Steel Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Brown, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving instructions for defendant.

      Thomas M. Marshall, Jr., for appellant,
    cited: Bennett v. R. R. Co., 102 U. S. 577.

      David A. Reed, of Reed, Smith, Shaw & Beal, and L. H. Burnett, for appellee.
    — The case was properly withdrawn from the jury: Gramlich v. Wurst, 86 Pa. 74; Moore v. R. R. Co., 99 Pa. 301; Gillespie v. McGowan, 100 Pa. 144; R. R. Co. v. Schwindling, 101 Pa. 258; Thompson v. B. & O. R. R. Co., 218 Pa. 444; Walsh v. Pittsburg Rys. Co., 221 Pa. 463; MacLean v. Burnham, 19 W. N. C. 53; Reardon v. Thompson, 149 Mass. 267 (21 N. E. Repr. 369); Bennett v. R. R. Co., 102 U. S. 577; Larmore v. Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752); Sterger v. VanSicklen, 132 N. Y. 499 (30 N. E. Repr. 987); Benson v. Baltimore Traction Co., 77 Md. 535 (26 Atl. Repr. 973); Ann Arbor R. R. Co. v. Kinz, 68 Ohio St. 210 (67 N. E. Repr. 479); Dixon v. Swift, 98 Me. 207 (56 Atl. Repr. 761); Glaser v. Rothschild, 106 Mo. App. 418 (80 S. W. Repr. 332); Stevens v. Nichols, 155 Mass. 472 (29 N. E. Repr. 1150).
    January 4, 1909:
   Opinion by

Mr. Justice Potter,

In this action the appellant sought to recover damages for personal injuries; and he complains in this appeal of the trial judge for directing a verdict for the defendant. It appears from the evidence that in one of the buildings upon the premises of the defendant company, in front of a long row of open hearth furnaces, was an iron and brick floor. This was known as the “charging floor,” and it extended in width from the doors of the furnaces to the wall of the building, a distance of forty-four feet. For a distance of about twenty feet from the furnaces the floor was of solid brick; the remainder of it was composed of removable iron plates resting upon girders. Below the floor was a cellar for retaining rubbish which it was necessary to remove at intervals, and to facilitate this process the iron floor plates 'were lifted from time to time as needed, leaving a temporary opening in the floor. In the month of January, 1903, the plaintiff with a large number of others, more than 200 in all, visited the works of the defendant company, and upon the day of the visit one of the floor plates, about five feet long and four feet wide, had been removed and through the opening buckets of rubbish were being hoisted from the cellar. A space of clear floor, about twenty-seven feet in width, lay between the opening and the furnaces, and over this space as a pathway, a guide furnished by the defendant company, led the party of visitors. It appears that the members of the party did not walk in close order, but spread out considerably, and the plaintiff walking well away from the line of the furnaces, failed to notice the opening in the floor caused by the removal of the iron plate, walked into the opening, fell to the bottom of the cellar, and was injured.

Counsel for appellant contends in his argument that the defendant company, having granted permission to visit its works, and furnished a guide, was under the implied duty of warning and guarding the plaintiff against the danger of falling into the particular opening in the floor into which he walked. A steel mill is by no means a place of public entertainment. If visitors go there to gratify their curiosity in seeing the process of manufacture, they must take the premises as they find them. In Gillis v. Railroad Co., 59 Pa. 129, this court held that a person using the private property of another by permission or sufferance, takes upon himself the incidental risk. And this doctrine has been many times reiterated, as was done with emphasis in Thompson v. B. & O. R. R. Co., 218 Pa. 444. In the present case permission was sought and obtained in behalf of the body of gentlemen who were visiting the mill. The object of the visit was to afford pleasure and benefit to the visitors; so that the facts show merely a case of license upon the part of the owner. There is nothing in the record to show that appellant was invited or induced by any act of the defendant to visit the steel mill, but it docs appear that he went there entirely for his own personal gratification. The authorities are almost uniformly to the effect that licensees and guests assume the ordinary risks of getting hurt while upon the premises of the licensor or host. But they do not assume extraordinary risk, such as would arise from anything in the nature of a concealed trap. In this case the opening into the cellar was part of the apparatus arranged for the convenient and proper operation of the mill, and was in no sense a trap or an obstruction to anyone making good use of his senses. The guide could not reasonably be expected to give close individual attention to each one of the 200 or more visitors who were following him. He could show the way, but something had to be left to the good sense of the visitors in following through a somewhat dangerous course. The path chosen- — more than twenty-five feet in width — was ample to permit the plaintiff to pass in safety had he kept within its reasonable limits. The evidence of the guide shows that the opening in the floor was so far to the side, that he did not notice it as he passed.

We are satisfied that the position assumed by the learned trial judge in this case, in directing a verdict for the defendant, is sustained both by reason and the great weight of the authorities, and therefore the judgment is affirmed.


author: Me. Justice Pottee,

text:
    Woodland Oil Company, for use, v. A. M. Byers & Company, Appellant.

      Statute of limitations — Contract — Sale — Consequential damages — Breach of warranty.

    1. If an action rests on a breach of contract, it accrues as soon as the contract is broken, although no injury results from the breach until afterwards.
    2. Where unsound personal property is sold with a warranty of soundness, the warranty is broken as soon as made, and the statute begins to run from the date of the sale, and not from the time when the buyer sustains consequential damages.

      Statute of limitations — Set-off practice — Pleading.
    3. Where the statute of limitations may be successfully set up against a claim sought to be enforced in an action of assumpsit, it may also be set up against the same claim when it is sought to be used as a set-off; nor does it matter that the statute is not pleaded by the plaintiff in reply to the defendant's plea of set-off.
    4. If the defendant goes to trial without demanding a replication to his plea of set-off, the defense to the set-off is unrestricted, and the plaintiff may avail himself of the statute of limitations or any other defense.
    Argued Oct. 28, 1908.
    Appeal, No. 187, Oct. T., 1908, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1903, No. 146, on verdict for plaintiff in case of Woodland Oil Company, for use of M. J. Gormley, v. A. M. Byers & Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of warranty in contract of sale. Before Carnahan, J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $1,959.44. Defendant appealed.

      Error assigned amongst others was in refusing binding instructions for defendant.

      Johns McCleave, with him John S. Wendt, for appellant.—
    The very words of the act of 1713 have been followed by this court in a long line of cases uniformly holding that the six years begin to run when the cause of action accrues, irrespective of the happening of damage from such cause: Rankin v. Woodworth, 3 P. & W. 48; Downey v. Garard, 24 Pa. 52; Campbell v. Boggs, 48 Pa. 524; Owen v. Savings Fund, 97 Pa. 47; Binney v. Brown, 116 Pa. 169; Mark v. Osmer, 138 Pa. 1; New Holland Turnpike Co. v. Insurance Co., 144 Pa. 541; Lehigh Coal, etc., Co. v. Blakeslee, 189 Pa. 13; Noonan v. Pardee, 200 Pa. 474; Carpet Co. v. Dornan, 64 Mo. App. 17; Allen v. Todd, 6 N. Y. Sup. Ct. 222; Baucum v. Streater, 50 N. C. 70; Taylor v. McMurray, 58 N. C. 357; Motley v. Montgomery, 2 Bailey (S. C.), 544.
    A set-off to a set-off will not be permitted: Russell v. Miller, 54 Pa. 154.

      Horace J. Thomas, with him J. M. Stoner ^and Samuel M. Meals, for appellee.
    — The action was not barred by the statute: Veazie v. R. R. Co., 49 Me. 119; Overton v. Tracey, 14 S. & R. 311; Wood v. Leland, 42 Mass. 387; Camp v. Bostwick, 20 Ohio St. 337; Martin v. Frantz, 127 Pa. 389.
    As this is an action for indemnity, the question is, when was the indemnity broken, for it was only when the indemnity was broken that the plaintiff had a right to maintain the action. It is well settled in this state that the indemnity is broken by a recovery of a judgment against the party indemnified: Carman v. Noble, 9 Pa. 366; Bamford v. Keefer, 68 Pa. 389.
    January 4, 1909:
   Opinion by

Me. Justice Pottee,

In May, 1895, the Woodland Oil Company engaged M. J. Gormley to drill for it an oil well. The company undertook to supply the casing for the well, and in the latter part of May it purchased about 1,200 feet of casing from A. M. Byers & Company, a corporation engaged in the manufacture and sale of such material. The casing was made of iron pipe in joints from twelve to twenty feet in length, intended to be screwed together at the ends. After Gormley had placed about 1,140 feet of the casing in the well, and had screwed on an additional joint, the collar, or shoulder of the last joint, gave away and separated from the pipe, and permitted the entire string of casing to fall to the bottom of the well. Gormley, and the oil company, claimed that the accident was due to a fault in the manufacture of the pipe, or in fastening the collar upon it, which was done by machinery. Attempts by Gormley to reach and withdraw the casing, were only partially successful, and after considerable effort the well was abandoned. The oil company refused to pay Gormley for drilling the lost well, or for his work in attempting to recover the casing; and upon July 22, 1896, he brought suit against it to recover for both. The oil company notified Byers & Company, and the latter employed counsel who appeared in the case, and assisted in the trial, it being to the interest of both parties to prevent recovery, if possible. The suit resulted in a verdict for Gormley, on June 20, 1899, and a judgment was entered thereon in the sum of $1,243.15.

On November 25, 1902, the present suit in assumpsit was brought by the Woodland Oil Company for use of M. J. Gormley against A. M. Byers & Company, a corporation. In the statement plaintiff claimed to recover the amount of the judgment obtained by Gormley, alleging that the same was “for loss occasioned entirely and altogether by the defective casing furnished” them by the defendant, which the latter had by its sale and delivery warranted to be fit for the purpose for which it was sold. Defendant pleaded nonassumpsit, payment, set-off and the statute of limitations. Under the plea of set-off it claimed to recover $698.21, the price of the casing furnished by it. This claim was on its face barred by the statute. Plaintiff filed a denial of set-off, in which it claimed the sum of $620.55 for expenses incurred in connection with the alleged defective casing. This claim was also barred upon its face.

Upon the trial the court refused a point asking for binding instructions in favor of the defendant and submitted the questions of fact to the jury. The verdict was for $1,959.44, being the amount of the Gormley judgment, with interest thereon and costs. Defendant moved for judgment in its favor non obstante veredicto, but the court dismissed the motion and entered judgment on the verdict. Defendant has appealed and by the assignments of error raises two questions: 1. Was plaintiff’s claim barred by the statute of limitations? 2. Was defendant’s claim barred in the same way? While not material to this issue, yet it appears from the record that plaintiff on October 25, 1900; brought suit for the same cause of action against the administrator of A. M. Byers, who was alleged to have traded as A. M. Byers & Company. In this action, the plaintiff was nonsuited, because it transpired on the trial that the purchase was made from A. M. Byers & Company, a corporation, not from Byers individually or trading under that name. Thereupon the present suit was brought, against the corporation. But during the pendency of the first suit the period "of six years from the date of the sale and delivery of the goods elapsed.

The parties in this suit differ as to when the cause of action arose. The appellant contends that the suit was upon an alleged breach of warranty, and that the plaintiff was at liberty to sue for this as soon as the defective pipe was delivered, or at least as soon as it was discovered, which was shortly after-wards. On the other hand, the appellee maintains that the suit was based upon an implied contract of indemnity, and that no right of action accrued until the subsequent injury resulted to it in the recovery of damages against it. Under this view the statute would not begin to run until the date of the Gormley judgment, which was within six years from the beginning of this suit. If we turn to the plaintiff’s statement of claim, we find that after setting out the purchase of the pipe from Byers & Company, and the contract with Gormley, it avers, “that A. M. Byers & Company, the defendant, well knew the purpose for which said casing sold by it was to be used, and by the sale and delivery thereof warranted the casing so sold to be reasonably fit for the purpose of being lowered into and used in an oil well for which it was intended.” It is further averred that the casing was defective, specifying the faults, and charging that by reason of such defects the accident had occurred, that plaintiff had immediately notified defendant of the accident and of its cause and at defendant’s request made every effort to remove the casing and clear the well, and that the contractor Gormley had sued them and obtained judgment against them in the sum of $1,243.15, for his time and expenses, in sinking the well and trying to remove the casing. Also that defendant had been notified of the suit, and by their counsel had taken part in defending against Gormley’s claim at the trial.

It thus clearly appears that in the statement the plaintiff claimed for a breach of warranty in the sale of the goods, and laid as its damages, the amount of the Gormley judgment, with interest from its date. We can find no evidence in the record of any agreement to indemnify the plaintiff against claims by Gormley or anyone else. The only contract set up by plaintiff in his statement is one of implied warranty. The Gormley suit and judgment were properly introduced as proof of and as measuring the extent of the damages sustained, but they are not the foundation of the claim. That rests upon the defective quality of the goods sold; and in such case, under all the authorities, the statute of limitations begins to' run from the date of the sale. The general rule is thus stated in one of the latest publications, 25 Cyc. L. & Pr. 1091, 1092: “A cause of action for breach of warranty in a sale of personal property accrues at the time the warranty is broken, and the statute of limitations then begins to run. . . . Where unsound personal property is sold with a warranty of soundness the warranty is broken as soon as made and the statute begins to run from the date of the sale, not from the time when the buyer sustains consequential damages.” A long line of our own cases, from Rankin v. Woodworth, 3 P. & W. 48, down to Lehigh Coal & Nav. Co. v. Blakeslee, 189 Pa. 13, and Noonan v. Pardee, 200 Pa. 474, holds that the statute runs from the time the cause of action accrues, without regard to the time when actual consequential damage is suffered.

And a statement of the law which applies more closely to the facts of this case is found in 3 Parsons on Contracts (9th ed.), *92, where it is said, “And if the action rests on a breach of contract, it accrues as soon as the contract is broken, although no injury results from the breach until afterwards. As if one delivers goods which are not what he undertakes to sell, and the purchaser resells under his mistake and is obliged to pay damages, he has a claim against the first seller, but must bring his action to enforce it within six years from the first sale.” In support of this principle the author cites Battley v. Faulkner, 3 B. & Ald. 288, where it was held that the cause of action accrues when the contract is broken, and not at the time when special damage in consequence is suffered. This decision was followed by the supreme court of the United States in Wilcox v. Plummer, 29 U. S. 172, and both cases were cited and followed by this court in an opinion by Woodward, J., in Campbell v. Boggs, 48 Pa. 524, wherein the principle involved was applied, in holding that an attorney in fact who collects money for his principal is bound to pay it over at once, and his neglect to do so is a breach of the implied contract, for which action will lie, and which marks the date from which the statute of limitations begins to run. And this case was again cited with others by Gobdon, J., in Owen v. Western Saving Fund, 97 Pa. 47, where he said: “All these authorities, and many more which might be cited, only serve to illustrate that which the statute itself makes plain enough, namely, that the commencement of the limitation is contemporaneous with the origin of the cause of action.”

As the present action was brought to recover for a breach of warranty, as to the quality of the goods sold and delivered, we reach without hesitation the conclusion that the cause of action must be deemed to have accrued when the defective casing was delivered; and as this was more than six years prior to the bringing of this action, the plaintiff was too late, and the statute of limitations is a complete bar to the successful urging of his claim.

The counterclaim for the price of the pipe, which was made by way of set-off by the defendant, was also barred by the statute. That the statute applies to a claim of set-off has been consistently maintained by this court from Hinkley v. Walters, 8 Watts, 260, down to State Hospital v. Phila. County, 205 Pa. 336, which holds, as set forth in the syllabus, that: “ Where the statute of limitations may be successfully set up against a claim sought to be enforced in an action of assumpsit, it may also be set up against the same claim when it is sought to be used as a set-off.” Nor does it matter that the statute was not pleaded by the plaintiff in reply to the defendant’s plea of set-off. It was decided in Levering v. Rittenhouse, 4 Wharton, 130, that a plaintiff may avail himself of the statute of limitations against a set-off given in evidence by the defendant without pleading the statute in any way. The defendant in this case did not require any reply to its plea of set-off. In Gilmore v. Reed, 76 Pa. 462, Justice Mercur said, “If the defendant goes to trial without demanding a replication to his plea of set-off, the defense to the set-off is unrestricted, and the plaintiff may avail himself of the statute of limitations or any other defense.”

It is therefore apparent that both the claim of plaintiff, and the counterclaim of the defendant, were barred by the statute. The court below was in error when it refused to instruct the jury that, by reason of the bar of the statute of limitations, the plaintiff could not recover in this case.

The judgment is reversed.


author: Per Curiam,

text:
    Hamnett v. Monongahela Trust Company, Appellant.

      Trusts and trustees — Enforcement of trust — Parol gift of land — Costs.
    Where a son owning an equity in land gives the same by parol gift to his mother, and the latter after taking possession enters into an agreement with a trust company by which the company is to buy in the land at a foreclosure sale, and thereafter to convey the land to the mother on repayment of advances, interest and a certain commission, the mother by a bill in equity may compel a conveyance of the land to herself on proper tender, and if the trust company admits the agreement at the trial, and states that it is still willing to carry out its terms, it is not necessary either to find fraud, or to resort to the finding that the company is a trustee ex maleficio.
    Argued Oct. 29, 1908.
    Appeal, No. 198, Oct. T., 1908, by defendant, from decree of C. P. No. 2, Allegheny Co., April T., 1907, No. 514, on bill in equity in case of Mary L. Hamnett v. Monongahela Trust Company.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to enforce a trust.
    Young, J., filed the following opinion:
    This was a bill to have the defendant declared trustee for the plaintiff of certain lands described in the bill, situate in Mifflin township, Allegheny county, Pa.
    FINDINGS OF FACT.
    1. That Guy Hamnett, a son of the plaintiff, was the holder of the legal title to the real estate described in the bill prior to August 6, 1906, and that it was subject to a mortgage to Irvin Redpath of $4,000, dated April 30, 1903, payable in three years, with interest from date.
    2. On January 24, 1906, at No. 674, February Term, 1906, of the court of common pleas No. 3 of this county, the mortgagee caused a scire facias and alias scire facias to be issued on the mortgage above recited; and judgment was taken in default thereof July 13, 1906, and the real estate described in the bill sold to Irvin Redpath by the sheriff on August 6, 1906.
    3. Guy Hamnett, the mortgagor, had removed from the state of Pennsylvania in the spring of 1904, and never returned. Prior to August 6, 1906, the date of the sheriff's sale, Guy Hamnett made a parol gift of the lands described in the bill to his mother, Mary L. Hamnett, who took possession of the same, paid the interest on the mortgage; paid the taxes; fenced it; leased it, and otherwise treated and claimed it as her own property.
    4. The plaintiff learned of the foreclosure proceedings on the mortgage, and, desiring to secure for herself something out of the proceeds of the sale of the real estate, consulted her attorney, J. Merrill Wright, who was at the same time solicitor for the Monongahela Trust Company, defendant, as to the method to accomplish that purpose. Wright advised the plaintiff that the only manner in which the title of her son, Guy Hamnett, to the lands could be divested was by sheriff’s sale, and then Wright sought to obtain the aid of the defendant in assisting the plaintiff. The defendant agreed to purchase the lands in its own name, provided the sum of not more than $5,000 was necessary, then to dispose of the real estate as quickly and as profitably as possible and after being reimbursed the amount invested, together with six per cent interest, expenses, attorney’s fees and a commission of ten per cent on the price at which it might thereafter sell the property, to voluntarily pay to thé plaintiff such 'sum as might be left from the proceeds of such sale or sales, and to convey to the plaintiff whatever of the lands might be remaining. The agreement on the part of the defendant was not in writing, and it was especially stipulated and agreed to by the plaintiff that the control and management of the real estate after its purchase by the defendant, should be solely in the hands of the defendant. Before the sheriff’s sale, Irvin Redpath, mortgagee, was advised of the arrangement which had been made by the plaintiff with the defendant, and consented that the defendant should purchase the property, and after sale of the property to Irvin Redpath and delivery of deed to him, he conveyed to defendant by deed dated August 26, 1906, and defendant paid therefor, the sum of $4,975, being in full of balance due on his mortgage, together with interest, costs, attorney’s fees, etc., and no part of that consideration was paid by the plaintiff.
    5. On January 19, 1907, defendant entered into a contract with James C. Kuhn for the sale of the five-acre tract for the sum of $8,500. The price of $8,500 was the fair market price for the five-acre tract on January 19, 1907, and it has not increased in value to the present.
    6. About January 19, 1907, the plaintiff notified J. Merrill Wright and Monongahela Trust Company, that she was prepared to pay it the sum of money it had invested, with interest, expenses, and ten per cent on the amount of money it had invested.
    7. After the sale of the five-acre tract described as the seventh piece in the first paragraph of the bill, there still remained in the defendant, Monongahela Trust Company, twenty-seven lots of ground described as the first, second, third, fourth, fifth and sixth pieces in the first paragraph of the bill.
    We conclude as matter of law:
    CONCLUSIONS OP LAW.
    1. The Monongahela Trust Company, defendant, took the lands described in the writ in trust for the said plaintiff, to sell such portion of the lands as might be necessary to reimburse it the amount invested, with six per cent interest, expenses, attorney’s fees, and a commission of ten per cent on the price at which it might thereafter sell such portion of the lands as might be sold, and reconvey to the plaintiff whatever of the lands might remain unsold.
    2. The Monongahela Trust Company, the defendant, may complete the sale of the five-acre tract to James C. Kuhn for the sum of $8,500, and out of the proceeds thereof reimburse itself the amount invested by it, together with six per cent interest, expenses, reasonable attorney’s fees and the commission of ten per cent on the sum of $8,500.
    3. The defendant shall account for and pay over to the plaintiff the balance of the sum of $8,500 after deducting the amount necessary to reimburse itself, as set forth in the foregoing conclusions of law.
    4. The Monongahela Trust Company, defendant, shall convey to the plaintiff all the remaining lands described in the bill, being those described as first, second, third, fourth, fifth and sixth pieces in the first paragraph of the bill.
    5. That the costs of this proceeding be paid by the defendant.
    DISCUSSION.
    The evidence satisfies us that Guy Hamnett made a parol gift of the lands in dispute to his mother, and that she entered into possession of the same. Both the Monongahela Trust Company and its attorney, Mr. Wright, who was also attorney for the plaintiff, were willing to assist the mother to save something out of the lands, and a verbal agreement was made between the company and Mrs. Hamnett under the advice of their mutual attorney. We find that that agreement was that the trust company should manage the real estate, sell as quickly as possible a portion of it, reimburse itself out of the proceeds of the portion sold, including the money actually expended by it, the expenses of its management, six per cent on the amount invested to secure the title, reasonable attorney’s fees and ten per cent on the amount received upon the sale of the portion sold. The defendant in its answer asserts that this was the agreement, and the president of the company admits it when on the stand and says that it is still the purpose of the defendant to carry it out. There is undoubted authority that a parol gift such as this and entry into possession by the donee, gives such donee an interest as would enable him to sustain a bill against the purchaser at sheriff’s sale, who had promised to purchase for the benefit of the donee, and then refused to perform the promise, as trustee ex maleficio.- In this case the defendant having alleged a trust and having afterwards through its officers admitted when the case was on trial that it had purchased the lands for the benefit of the plaintiff and was still willing to carry out the terms of the agreement, it is not necessary to find either fraud or to resort to the finding that the defendant is a trustee ex maleficio. We are only required to declare the trust as set up and proven by the defendant. If the defendant had offered before the bill filed to perform the agreement which it now admits, it might have saved the costs. As it is, we are of the opinion that the costs should be paid by the defendant.

      Errors assigned were conclusions of law, quoting them.

      W. L. McConegly, with him J. Merrill Wright, for appellant,
    cited as to the question of parol gift: Erie & Wyoming Valley R. R. Co. v. Knowles, 20 W. N. C. 131; Poorman v. Kilgore, 26 Pa. 365; Sower v. Weaver, 78 Pa. 443; Hart v. Carroll, 85 Pa. 508; Stewart v. Brown, 2 S. & R. 461.
    Cited as to the payment of costs: Robertson v. Robertson, 9 Watts, 32; Payne v. Patterson, 77 Pa. 134; Kraft v. Smith, 117 Pa. 183; Dollar Savings Bank v. Bennett, 76 Pa. 402; Phillips v. Hull, 101 Pa. 567; Grove v. Kase, 195 Pa. 325.

      Galen C. Hartman, for appellee.
    January 4, 1909:
   Per Curiam,

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


text:
    Butler’s Estate.

      Wills — Last extremity — Signature—Failure to ask another to sign— Act of April 8, 1833, P. L. 249.
    Where a paper prepared as a will is read to a person in his last illness, who expresses his approval of it, but is prevented from signing it by reason of his exhausted condition brought on by his wife’s hysterical conduct, although he is still capable of asking another to sign for him, but fails to do so, the paper cannot be admitted to probate as a will.
    Argued Oct. 29, 1908.
    Appeal, No. 190, Oct. T., 1908, by Frank Butler, from decree of O. C. Allegheny Co., March T., 1908, No. 197, dismissing appeal from Register of Wills in Estate of Ralph Butler, decéased.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition from decision of register of wills refusing to admit a paper writing as a last will and testament.
    Hawkins, P. J., filed the following opinion:
    The questions raised in this matter grow out of objections made, (1) to testamentary capacity; and (2) to the competency of parol proof of an unsigned will.
    The facts are these:

      Ralph Butler was married twice. He had one son by his first wife, but although after the birth of this son he was divorced from his wife, he continued to maintain them during his life. About sixteen years ago he again married. In August, 1907, while in failing health and contemplation of going to a sanitarium, he made a will in which he substantially gave his whole estate to his then wife, stating at the time, however, that this was merely a “peacemaker,” and that he intended to have another drawn in which he would take care of his son.' The will so executed seems to have passed into Mrs. Butler’s hands and remained there until offered for probate. In the latter part of October following, Mr. Butler returned from the sanitarium in much worse health, and was confined to his room until he died, November 9. In the meantime he was often delirious and confused, but had lucid intervals. In one of these lucid intervals he gave instructions for the drawing of a will. The first draft proving unsatisfactory a second was prepared, embodying his suggestion that his wife should have sixty, and his son forty per cent of the income during her life, and the principal go to his son at her death. Before this latter was presented the attending physician on being asked if Mr. Butler was capable of making a will replied that if caught in a lucid interval he “ could talk business.” Accordingly about 4:30 o’clock in the afternoon of November 6, Mr. Wisner, an intimate personal and business friend, took the will which had been drawn to Mr. Butler’s room and finding him conscious, read it carefully to him in presence of Mrs. Butler and others, and at the conclusion of the reading, when asked, if that was what he wanted, answered, “Yes, this is as I want it to be.” In the meantime when Mrs. Butler understood the proposed disposition she became hysterical, begged Mr. Butler on her knees not to make this ' will, cried, threw herself on the bed and moaned, ran out and in the room. To this appeal Mr. Butler replied among other things: “You have been nagging me for the last fifteen years, ever since my marriage, to put all my property in your hands; I told you I would not, and I don’t intend to.” This ordeal lasted until after six o’clock — more than an hour and a half— and when Mr. Wisner asked Mr. Butler to sign the will the reply was “ No,” he was too “tired and exhausted; let it go until tomorrow.” Mr. Butler’s mind was clear during the whole of this ordeal; but he was in an unusually weak and nervous condition in consequence of it. His hand was trembling so that it was thought he could not have made a legible signature. He had been delirious in the forenoon when the doctor made his call, and was again delirious at eight o’clock, and so far as appears had no lucid intervals afterward.
    The court finds from the evidence:
    1. That Mr. Butler was mentally competent when the writing propounded here as his will was submitted to him;
    2. That this writing expresses his final testamentary intent; but
    3. That he was prevented from signing it by reason of his exhausted condition brought on by his wife’s hysterical conduct; but was capable of asking another to sign for him.
    Prior to the passage of the act of April 8, 1833, wills in writing proved by two or more witnesses, although unsigned by testators, were sufficient to pass real and personal estate: 2 Rhone, 491. The act of 1833 changed this so far as to make signature necessary unless testator was prevented by the extremity of last sickness from signing. The writing propounded here can be sustained, if at all, only by bringing it within this qualification of the statutory prescription. The question then is whether or not Mr. Butler was prevented by the extremity of his last illness from signing? The statutory methods of signing may be personally or by the hand of another; and under the authorities the extremity must be such as to prevent the exercise of either of these methods. “If,” said the court in Strieker v. Groves, 5 Whart. 386, “being personally unable to sign and having time and opportunity to ask another to do so, testator fails to do it, the will fails.” So in Ruoff’s App., 26 Pa. 219, the excuse was that the alleged testator was prevented from signing by the extremity of his last sickness and so were the proofs; but the court found that he had his senses and conversed about the will more than would have been necessary to ask someone to sign for him. So in Plate’s Est., 148 Pa. 55, where the testator started to write his signature but stopped, saying, “I can’t sign it now,” the court held this did not excuse him from asking another to do so. No doubt as was said in Aurand v. Wilt, 9 Pa. 54, testator is entitled to a reasonable time within which to sign and if prevented before the end of that time the case falls within the saving clause, as did the case of Showers v. Showers, 27 Pa. 485; but Mr. Butler’s condition made it essential that he should have called on another to act for him. Even the interference of his wife might not have prevented this. The postponement was unreasonable. It was known that delirium or death were imminent. Even if he should have another lucid interval he might change his mind as to the manner of disposition of his estate. The evidence shows that while he was unable to sign personally, he was not in such an extremity as to prevent him from calling on another to sign for him. It follows under the authorities that the writing propounded must fail as a will. He could not sign, but could request and did not: Ruoff’s App., 26 Pa. 219.
    The court entered a decree dismissing the appeal from the register of wills.

      Error assigned was decree dismissing appeal from register of wills.

      A. B. Reid and M. J. Hosack, of Hosack, Knox & Hosack, with them A. V. D. Watterson, for appellant.
    — The will dated November, 1907, was executed and proved in conformity with sec. 6 of the statute of wills, approved April 8, 1833, P. L. 249; Showers v. Showers, 27 Pa. 485; Aurand v. Wilt, 9 Pa. 54.

      Samuel McClay, with him Wm. A. Seifert and Reed, Smith, Shaw & Beal, for appellees,
    cited: Ruoff’s App., 26 Pa. 219; Strieker v. Groves, 5 Whart. 385; Plate’s Est., 148 Pa. 55.
    January 4, 1909:
   Per Curiam,

The decree is affirmed at the cost of the appellant on the opinion of the learned president judge of the orphans’ court.