text:
    Scheel, Appellant, v. German-American Insurance Company.

      Insurance — Fire insurance — -Cancellation—Notice—Substitution.
    1. A policy of fire insurance is a contract of indemnity, and unless it is canceled by mutual consent, or the policy provides that it may be terminated on the option of the parties and is so terminated, it will continue in force for the term for which it was written. If the right to terminate is reserved in the policy, the conditions upon which it is to be exercised must be strictly complied witli; and if a certain number of days is required to intervene before the notice to cancel is to take effect, the policy will still be in force and cancellation will not become effective until the expiration of the time named in the notice.
    2. If the insurance company allege as a defense in ail action on its policy that the assured has waived a five days’ notice of cancellation, or that he has replaced the policy by another policy and thereby relieved the company from liability, it is incumbent upon the company to aver in its affidavit of defense and prove on the trial, not only that such was the intention of the assured but that his intention was carried out with his consent and by his agreement with the company.
    3. The mere procurement of another policy on the same property and for the same amount after the notice and within the five-day limit does not disclose an intention on the part of the assured to cancel the earlier policy or to relieve the company from liability thereon; and in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier policy.
    4. A fire insurance policy contained a provision permitting the insurance company to cancel the policy on five days’ notice. The company gave a notice on November 7. The insured immediately took out a policy in another company without any notice to, or arrangement with, the first company. The property was destroyed by fire on November 11. Held, that the first company was bound to bear its ratable share of the loss.
    Argued March 22, 1910.
    Appeal, No. 46, Jan. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1909, No. 3,288, discharging rule for judgment for want of a sufficient affidavit of defense in case of Richard Oscar Scheel v. German-American Insurance Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

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

      April 18, 1910:

      James S. Alcorn, of Alcorn & Hershey, and Frank R. Shattuck, with them David W. Hoffman, for appellant.
    It is well settled in Pennsylvania and other jurisdictions that where five days’ notice of cancellation is given by the insurer the insurance continues ip force until the expiration of the five days, unless the insured agrees to waive the five days’ notice or accepts the cancellation and thereby relieves the company: Penn Plate Glass Co. v. Spring Garden Ins. Co., 189 Pa. 255; Baldwin v. Penna. Fire Ins. Co., 206 Pa. 248; Mauk v. Commercial Union Assur. Co., 7 Pa. Superior Ct. 633; Lancashire Ins. Co. v. Nill et al., 114 Pa. 248; Wicks v. Scottish Union & National Ins. Co., 107 Wis. 606 (83 N. W. Repr. 481); Rothschild v. Ins. Co., 74 Mo. 41; Phila. Linen Co. v. Manhattan Fire Ins. Co., 8 Pa. Dist. Rep. 261.
    If the policy prescribed a certain method for exercising the reserved right of cancellation by the copipany, this method must be followed, unless the insured waives the requirement: Baldwin v. Penna. Fire Ins. Co., 206 Pa. 248; Lancashire Ins. Co. v. Nill, 114 Pa. 248; Kerr v. Milwaukee Mechanics’ Ins. Co., 117 Fed. Repr. 442; Phenix Ins. Co. v. Kerr, 129 Fed. Repr. 723; White v. Corlies, 46 N. Y. 467; Partridge v. Milwaukee Mechanics’ Ins. Co., 13 N. Y. App. Div. 519; Quong Lue Sing v. Nevada Assur. Corp., 86 Cal. 566 (25 Pac. Repr. 58); Globe & Rutger’s Fire Ins. Co. v. Mfg. Co., 128 Ill. App. 262; Home Ins. Co. v. Lumber Co., 55 S. E. Repr. (Ga.) 11.

      George P. Rich, for appellee.
    The case was for the jury: Arnfeld v. Guardian Assur. Co., 172 Pa. 605; Springer v. Assur. Corp., 33 N. Y. St. Repr. 543; Beirmeister v. Fire Ins. Co., 39 N. Y. St. Repr. 741.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit on a fire insurance policy. The court discharged a rule for judgment for want of a sufficient affidavit of defense, and the plaintiff has taken this appeal.

The statement avers substantially as follows: That on or about October 27, 1908, the German-American Insurance Company, the defendant, issued its policy of insurance to plaintiff in the sum of $2,500, covering a loss on certain machinery and other property on premises situate at Forty-eighth street and Parkside avenue, Philadelphia;- that on November 11, 1908, a fire occurred on the premises causing the total destruction of the property insured, and the loss sustained by plaintiff was $5,508.51; that at the time of the fire there were two other policies of fire insurance, issued by other companies, in force on the same property in the sum of $2,500 each, making a total insurance of $7,500 in force at the time of the fire, including defendant’s policy; that the proportion of the loss for which the defendant is liable under its policy is the sum of $1,835.17, to recover which this action was brought.

The affidavit of defense admits the issuance of the policy, but avers substantially as follows: That on November 7, 1908, the defendant company gave plaintiff five days’ notice of its intention to cancel the policy; that, after the notice and before the loss, the plaintiff procured a policy for $2,500 in the Hartford Fire Insurance Company with the intention that it should be a substitute for the defendant’s policy and was not for the purpose of increasing his insurance beyond $5,000, and as a result of such action the defendant’s policy thereby became canceled and the risk was at an end.

The policy issued by the defendant to the plaintiff contains the following stipulation: “This policy shall be canceled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation.” Pursuant to this provision of the policy, the defendant, on November 7, 1908, gave the plaintiff a “five days’ formal notice of its intention to cancel policy No. 73,317, issued to you for $2,500,” and concluded the notice as follows: “Please take special notice that all liability of said insurance company under said policy will absolutely cease on the expiration of this notice unless surrender thereof to said company be sooner made.” The defendant’s policy was for the term of one year from October 26, 1908. The Hartford Fire Insurance Company issued its binder to the plaintiff for a $2,500 policy on November 10, 1908. The fire occurred on November 11, 1908, and the plaintiff collected from the Hartford company its pro rata share of the loss.

The position of the defendant company, as stated in its brief, is that when the plaintiff received notice of the intended cancellation of the policy and promptly applied for and obtained a policy in the same amount in the Hartford company, his purpose was not to increase his line of insurance from $5,000 to $7,500 but to accept the cancellation, waive the full time limit of five days, and substitute in place of the defendant’s policy the Hartford company’s policy as a reinsurance; and that when he subsequently collected from the Hartford company its pro rata of the loss by fire, which occurred within the five days, he could not, while thus accepting and receiving the benefit of that policy, hold the defendant company, for whose policy the Hartford company’s policy was a substitute, also liable.

We think the affidavit of defense is insufficient, and that the court below erred in not entering judgment against the defendant. A policy of fire insurance is a contract of indemnity, and unless it is canceled by mutual consent, or the policy provides that it may be terminated on the option of the parties and is so terminated, it will continue in force for the term for which it was written. If the right to terminate is reserved in the policy, the conditions upon which it is to be exercised must be strictly complied with; and if a certain number of days is required to intervene before the notice to cancel is to take effect, the policy will still be in force and cancellation will not become effective until the expiration of the time named in the notice. If the insurance company allege as a defense in an action on its policy that the assured has waived the five days’ notice, or that he has replaced the policy by another policy and thereby relieved the company from liability, it is incumbent upon the company to aver in its affidavit of defense and prove on the trial, not only that such was the intention of the assured but that his intention was carried out with his consent and by his agreement with the company. In other words, the mere procurement of another policy on the same property and for the same amount after the notice and within the five-day limit does not disclose an intention on the part of the assured to cancel the earlier policy or to relieve the company from liability thereon; and in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier policy.

The policy on which this suit was brought, as noted above, gave either party the right to cancel it on five days’ notice. Such notice was given by the company, and it specifically declared “that all liability of said insurance company under said policy will absolutely cease on the expiration of this notice unless surrender thereof to said company be sooner made.” The policy, therefore, remained in force until the expiration of the five days unless it was sooner surrendered to the company. It is not averred in the affidavit that the policy was surrendered to the company within the five days, nor that the defendant had .any knowledge prior to the fire or to the expiration of the five days that the plaintiff had procured insurance in the Hartford company, nor that there was any written or oral agreement between the parties that the policy was or should be canceled or the company was or should be relieved from liability thereunder, nor that the company had any knowledge of the purpose or intention of the plaintiff in procuring the Hartford policy to cancel defendant’s policy or to substitute the Hartford policy for it. There is no provision in the policy that it should be canceled if insurance for a like amount was taken out in another company, nor that such insurance should be a substitute for the defendant’s policy and relieve the defendant from liability thereon. The liability on the policy, therefore, continued until the expiration of the term for which it was written, unless the policy was canceled in pursuance of the five days’ written notice or by the mutual consent of the parties. As the defense rests solely upon the allegation that the policy was canceled by the substitution of the Hartford company policy for a like sum, the defendant must aver and show, not only that the assured intended to, but did procure from the Hartford company a policy, substitute it for the defendant’s policy, and consent or agree that the substituted policy should take the place of the defendant’s policy and thereby relieve the defendant from liability on its policy. Conceding that it was the intention of the plaintiff to limit his insurance on the property to $5,000 and that he had so instructed his agent, the fact that the latter procured $2,500 in the Hartford company which, in addition to the two other policies on the property aggregating $5,000, carried the plaintiff beyond the limit of $5,000, did not cancel or avoid the defendant’s policy. Before it could have that effect, the intention to substitute must become effective by the plaintiff’s agreement with the defendant company. If, notwithstanding the intention of the plaintiff to limit his insurance to $5,000, his agent without his principal’s authority had taken out two policies of insurance each in the sum of $5,000, making a total of $10,000 on the property, it would hardly be pretended that as between the plaintiff and the insurance company the former’s intention would avoid or cancel one of the policies. The plaintiff could have recourse to his agent for violating his instructions, but the insurance company could not defend against an action on the policy for a loss which occurred during its life. The intention of the assured, disclosed, or undisclosed, cannot hasten the expiration of the policy or release the defendant from its covenants therein until such intention has been carried into effect by the cancellation or surrender of the policy by the assured in compliance with the defendant’s notice.

The defendant relies on the case of Arnfeld v. Guardian Assurance Co., 172 Pa. 605. There is, however, a clear distinction between the cases. There, the five days’ notice was given and within that time another policy was substituted for the original policy by express agreement of the parties. When the notice was given, the plaintiff’s agent replied that he “would take notice and replace it as soon as possible.” The agent procured another policy to replace the one directed to be canceled. The company’s agent thereafter and before the fire inquired of the plaintiff’s agent whether the latter had replaced the risk, and said: “It is distinctly understood the Guardian [Assurance Company] is relieved.” The plaintiff’s agent replied: “The Guardian is relieved.” In the opinion, Mr. Justice Dean says (p. 608): “Was there a substitution of the liability of a third party for that of the defendants, by the consent of the plaintiffs, defendants, and the third party? Defendants’ contract was one of indemnity in a fixed amount against loss by fire on certain goods; a third party, the Queen Insurance Company, took its place and indemnified plaintiffs against precisely the same loss, in the same amount, on same goods, then stood by its contract, and paid the loss. This was a complete and effectual substitution of another insurer in place of defendants. And this was by the consent of all parties interested.”

It is conceded that the defendant would be liable on its policy if the assured had not taken out the Hartford company policy. There is no averment in the affidavit of defense that the latter policy was to take the place and be a substitute for the defendant’s policy “by the consent of the plaintiffs, defendants, and the third party.” Unquestionably such agreement on the part of the plaintiff would relieve the defendant from liability on its policy. That was the Arnfeld case, but there are no facts averred in the affidavit which would warrant the conclusion of the existence of any such agreement between the plaintiff and the defendant company in this case.

The order of the court below is reversed, the rule for judgment for want of a sufficient affidavit of defense is made absolute, and judgment is entered for the plaintiff against the defendant, the amount to be liquidated by the prothonotary of the common pleas.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Fidelity Trust Company, Appellant, v. Bobloski.

      Wills — Construction—Gift to widow — Remarriage—Defeasible estate in fee.

    1. In case of doubt the construction of a will should be in favor of the first rather than of the second taker; of a general or primary intent rather than of a particular or secondary one; and where a devisee is subjected to a charge or burden doubts as to the quantum of the estate should be resolved in his favor.
    2. An indefinite devise coupled with a charge on the devisee passes a fee.
    3. Testator by his mil provided as follows: “I. Fully convinced, that my wife is able as well as willing, after my decease to instruct and educate our children, and to take care and administer our joint property, just as good as if I was still living I wish and direct that my said wife shall take possession and enjoy and administrate for the time that she remain a widow all of my real and personal estate and effects. . . . I wish and direct that my said wife shall assist to the best of her ability, our children, when they become of age, to procure the ways and means best adapted for their future welfare and position to secure their own means. ... At and of the event of my said wife.again becoming married, all my real and personal estate shall be divided between herself and our children, according to the laws of this commonwealth. . . . To assist my wife in the execution of my real and personal estate as well as in the execution of my last will and testament, I herewith appoint herself” and two other persons named, as executors. Held, that the widow took a defeasible fee, which upon her death without remarriage became a fee absolute.

      Argued March 23, 1910.
    April 18, 1910:
    Appeal, No. 63, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1909, No. 4,596, for defendant on case stated in suit of Fidelity Trust Company, Committee of the Estate of Maria Louisa Hoffman, v. Moses Bobloski.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Case stated in amicable action of ejectment. Before Martin, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in entering judgment for defendant on the case stated.

      H. Gordon McCoueh, with him George 8. Munson, for appellant,
    cited: Redding v. Rice, 171 Pa. 301; Drennan’s App., 118 Pa. 176; Kane’s Est., 185 Pa. 544; Walker v. Quigg, 6 Watts, 87; Long v. Paul, 127 Pa. 456.

      John Marshall Gest, for appellee,
    cited: Campbell v. Carson, 12 S. & R. 54; Kiefel v. Keppler, 173 Pa. 181; Witmer v. Delone, 225 Pa. 450; Presbyterian Church v. Disbrow, 52 Pa. 219; Lee v. Stephens, 2 Shower, 49; Jackson’s Est., 179 Pa. 77; Lloyd v. Jackson, L. R. 1 Q. B. Cases, 571; Pickwell v. Spencer, L. R. 7 Exch. 105; s. c., L. R. 6 Exch. 190; Morrison v. Semple, 6 Binn. 94; Crosky v. Dodds, 87 Pa. 359; Cooper v. Pogue, 92 Pa. 254; Rohrbach v. Sanders, 212 Pa. 636; Koble v. Bennett, 40 Pa. Superior Ct. 79; Scott v. Murray, 218 Pa. 186.
   Opinion by

Mr. Justice Moschzisker,

The only question raised by this appeal concerns the quantum of the estate taken by the widow under the following will: “I. Fully convinced, that my wife Philippina (née Doll) is able as well as willing, after my decease to instruct and educate our children and to take care and administer our joint property, just as good as if I was still living I wish and direct that my said wife shall take possession and enjoy and administrate for . the time that she remains a widow all of my real and personal estate and effects including the shares of the different Building Associations to which I do belong or might hereafter belong, Subject however to the condition that she shall not sell, dispose of or contract any debt or liabilities of and on any of my said Real estate or city loan without -the consent of Executors hereinafter named. II. I wish and direct that my said wife shall assist to the best of her ability, our children, when they become of age, to procure the ways and means best adapted for their future welfare and position to secure their own means. III. At and of the event of my said wife again becoming married, all my real and personal estate shall be divided between herself and our children, according to the laws of this commonwealth, and a guardian shall be appointed for such of our children as are then not of age. IV. To assist my wife in the execution of my real and personal estate as well as in the execution of my last will and Testament, I herewith appoint herself, Peter Kohlhas and my brother P. C. Hoffman all of the City of Philadelphia State of Pennsylvania as Executors of and to this my last will and testament.” The testator, Jacob Hoffman, died seized of certain real estate. The court below held that the widow took a fee in this real estate defeasible upon her remarriage. The question is not entirely free from doubt, but we are convinced that this is the correct interpretation of the will.

In case of doubt the construction of a will should be in favor of the first rather than of the second taker; of a general or primary intent rather than of a particular or secondary one; and where a devisee is subjected to a charge or burden, doubts as to the quantum of the estate should be resolved in his favor: Jackson’s Est., 179 Pa. 77.

The testator refers to the estate as “our joint property,” and shows an intention to substitute his wife for himself in relation thereto. She appears the first and principal object of his bounty, and his general or primary inteni, seems to be to give her the property as he had it, trusting her to take care of their children. His expression of confidence that his wife would educate the children, and his direction that she should assist them when they became of age “to procure the ways and means best adapted for their future welfare and position to secure their own means,” tend to demonstrate this primary intent, and go far to show a purpose to give her an estate in fee. It is a well-settled rule that an indefinite devise coupled with a charge on the devisee passes a fee. In Lloyd v. Jackson, L. R. 1 Q. B. Cases, 571; s. c. L. R., 2 Q. B. Cases, 269 (before the Wills act), the testator directed: “I give and bequeath to my beloved wife, all and singular my lands, messuages and tenements, by her freely to be possessed and enjoyed, all of my children to be educated and settled in business according to my wife’s discretion;” and it was held that the language indicated an intention that the wife should take such an estate as would enable her to carry out the wishes of the testator, and that she took an estate in fee. This view was sustained on appeal by the exchequer chamber, L. R. 2 Q. B. Cases, 269; Kelly, Chief Baron, saying: “Whether this duty be obligatory or whether it be discretionary, we are of opinion that the effect of this part of the will is to confer the fee simple and not merely an estate for life.” The rule laid down in this English case has always obtained in Pennsylvania: Burkart v. Bucher, 2 Binney, 455; Coane v. Parmentier, 10 Pa. 72; Fahrney v. Holsinger, 65 Pa. 388; Jackson’s Est., 179 Pa. 77.

“Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee:” Witmer v. Delone, 225 Pa. 450. The present will, by clear implication, gives to the widow the power to sell and dispose of the estate. The executors are expressly appointed “to assist my wife in the execution of my real and personal estate.” They are given no interest in or power of sale over the real estate, and their function respecting it is made advisory to the widow. The direction that the widow could not sell or dispose of the real estate or city loans without the consent of her coexecutors cannot serve to defeat the fee.

The words of the devise, taken in connection with the other parts of the will, are sufficient to vest a fee in the widow. In Snyder v. Baer, 144 Pa. 278, the words, “I direct that' my beloved wife shall have and hold the property where I now reside,” were held to carry a fee.' In the present instance the testator directs that his wife shall take possession of and enjoy all of his real and personal estate. In Campbell v. Carson, 12 S. & R. 54, we held that a devise to a wife of property “to be by her freely possessed and enjoyed” passed a fee; and this was before the Act of April 8, 1833, P. L. 249. “The Act of 1833, changes the rule of construction by its command that ‘All devises of real estate shall pass the whole estate of the testator in the premises devised .... unless it appear by a devise over, or by words of limitation, or otherwise in the will, that the testator intended to devise a less estate.’ Starting with this statutory presumption, the burden of proof is now upon those who claim that a less estate was intended by the testator:” Keifel v. Keppler, 173 Pa. 181. There is no devise over in the present will; nor does it appear by words of limitation or otherwise that the testator intended to give his wife an estate less than a fee. The fee given to the wife was not cut down to a life estate by the provision that she was to take possession and enjoy the estate “for the time that she remains a widow,” or by the further provision that in the event of her marriage the estate was to be divided between herself and the testator’s children according to the intestate law. There are cases where provisions restricting a widow to the enjoyment of the property during widowhood have been held to limit the estate to her life, and others where the contrary has been ruled. It depends in each instance upon the intent to be gathered from the will as a whole. In Redding v. Rice, 171 Pa. 301, Mr. Justice Mitchell distinguished the former class of cases, particularly Cooper v. Pogue, 92 Pa. 254, and Long v. Paul, 127 Pa. 456, and truly said: “Precedents are of little value in the construction of wills, because when used under different circumstances with different context, the same words may express different intentions.” It was held in that case that a devise to the wife “as long as she remains my widow, and if she should get married then she shall only be entitled to one-third in said property” gave the widow a fee, and, as she had not remarried, that a conveyance made by her vested an estate in the grantee which became indefeasible after her death. In Rohrbach v. Sanders, 212 Pa. 636, the devise was to a wife “provided, however, that if my said wife should again marry then I give and devise the property before mentioned to my son,” and it was held that the widow took a defeasible fee, which upon her death before marriage became an absolute fee simple. And in Scott v. Murray, 218 Pa. 186, we held that the words “so long as she remains my widow,” annexed to the grant of a fee, did not indicate an intention to cut down the quantum of the estate.

In the present case there is sufficient in the will to show an intention that the widow should take a defeasible fee and there is not enough to restrict the devise to an estate for life. The widow not having remarried, the fee became absolute upon her death, and the real estate in question passed under her will.

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


author: Per Curiam,

text:
    Avery, Appellant, v. Home for Orphans of Odd Fellows of Pennsylvania

      Will — Trusts and trustees — Charitable gift — Location of building.

    A bequest to “The Home for Orphans of Odd Fellows at Twentieth and Ontario Streets, Philadelphia, to be used for the purpose of erecting a wing or addition to its building” does not restrict the home from using the money in erecting a wing to a building necessary for its work in a locality other than that mentioned in the will.
    Submitted March 23, 1910.
    Appeal, No. 86, Jan. T., 1910, by plaintiff, from decree of C. P., No. 1, Phila. Co., June T., 1909, No. 4,997, dismissing bill in equity in case of James H. Avery v. the Home for Orphans of Odd Fellows of Pennsylvania.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Kinsey, J., stated the facts to be as follows:
    This is a bill in equity praying for an injunction to restrain defendant from using certain money, received by it from the estate of James D. Thompson, deceased, for the purpose of building a wing or addition to their building at the present time located at the northwest corner of Twentieth and Ontario streets, in the city of Philadelphia. The case was heard on bill and answer without other proofs.
    From the bill and answer it appears that the said James D. Thompson died on January 12, 1907, having provided in his last will, bearing date October 25, 1904, in item 4 thereof, in language as follows: “All the rest, residue and remainder of my estate so held In Trust I give and bequeath unto The Home for Orphans of Odd Fellows, at Twentieth and Ontario Streets, Philadelphia, to be used for the purpose of erecting a wing or addition to its building, said wing or addition to be called The James D. Thompson Memorial.”

      April 18, 1910:
    That the above mentioned residuary estate is now vested in said defendant. By the order of the orphans’ court of Philadelphia county, on March 11, 1908, the same was awarded to the said defendant to the amount of $100,265.61 of personal estate, and real estate of the assessed value of $15,000 in trust for the purposes set forth in the will of said testator, and which personal estate is now in the possession and under the control of said defendant.
    That said defendant has since the death of testator authorized its board of directors to sell, for an adequate price, the real estate located at the northwest corner of .Twentieth and Ontario streets, in the city of Philadelphia, now occupied by the home, and to purchase a new site for the purpose of building a new home and intends to use the bequest of the said James D. Thompson in the erection of a wing or addition to the new home to be erected on the new site to be selected.

      Error assigned was decree dismissing the bill.

      Francis V. Godfrey and Avery D. Harrington, for appellant.
    P. Hale Jenkins, C. B. D. Richardson and Linwood L. Hallman, for appellee.
   Per Curiam,

The object of the testator’s bounty was the Home for Orphans of Odd Fellows of Pennsylvania, the location of which is given in his will as Twentieth and Ontario streets, Philadelphia. There is nothing in his bequest to it to indicate that its continuance at that location was a condition upon which the bounty was to be enjoyed, and the location was manifestly given by the testator merely for the purpose of fully identifying the institution. There may be others like it in the state. An unchallenged statement in the appellee’s paper-book is that there are four homes, of some kind, in Pennsylvania under the jurisdiction and control of the Grand Lodge of Odd Fellows. The purpose of the testator was benevolence to the home for orphans, located at the time his will was written at the point named. In its cramped condition there it cannot make proper use of the bequest, and, its board of directors having concluded to locate elsewhere for the purpose of building a new home, it would be doing violence to the manifest intention of the benefactor to forbid his bounty to follow the home where it will be enabled by-such bounty to increase its usefulness, which he had in view.

Decree affirmed at appellant’s costs.


author: Mr. Justice Brown,

text:
    Egolf Building & Loan Association v. Cleaver, Appellant.

      Building and loan association — Officers — Stockholders — Stock — Attachment execution.

    1. The treasurer of a building and loan association may through his counsel, who is also the solicitor of the association, issue an attachment execution against the stock of a member of the association for a private debt of his own and summon himself, as treasurer, as the garnishee.
    2. Where a member of a building and loan association does not make any appropriation of payments on his stock to the reduction of his mortgage debt to the association, and the association has made no appropriation, and the stock is attached in garnishment proceedings, the member- cannot thereafter appropriate the payment made on the stock to the reduction of his mortgage debt.
    3. A credit for the value of stock given in the praecipe for a sci. fa. sur mortgage which is afterwards discontinued, signed by the solicitor of a building and loan association and sworn to by its secretary, does not constitute an appropriation by the association of the value of the stock to the mortgage indebtedness, it not being shown that either the solicitor or the secretary had authority to give such credit or make such'an appropriation.
    Argued March 23, 1910.
    Appeal, No. 80, Jan. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 3,749, refusing to reduce assessment of damages in case of George Egolf Building & Loan Association v. Frank C. Cleaver.
    Before Brown, Mestrezat, Potter, Elkin and Moschztsker, JJ.
    Affirmed.
    Rule to reduce assessment of damages.
    The opinion of the Supreme Court states the facts.

      Error assigned was order refusing to reduce assessment of damages.

      George J. Edwards, Jr., for appellant.
    The solicitor had power to give the credit: Louchheim v. Building & Loan Assn., 16 Pa. Superior Ct. 33; Kilpatrick v. Building & Loan Assn., 119 Pa. 30; Building & Loan Assn. v. Kilpatrick, 140 Pa. 405; Schutte v. Building & Loan Assn., 146 Pa. 324.
    The building association having two funds out of which it may realize its debt is by the doctrine of marshaling of assets obliged to first resort to the fund upon which it alone has a lien, to wit, the stock, before it can proceed against the real estate upon which exist junior incumbrances which have no lien upon any other fund: Endlich on Building Associations, secs. 485, 486; Bispham on Equity, sec. 340; Robeson’s App., 117 Pa. 628; Ramsey’s App., 2 Watts, 228.

      Harvey Gourley, for appellee.
    The association’s solicitor had no implied authority to make the appropriation of stock toward the mortgage debt. He had no such power by virtue of his retainer: Gass v. Citizens’ B. & L. Assn., 95 Pa. 101; Johnston v. Elizabeth B. & L. Assn., 104 Pa. 394; Isaacs v. Zugsmith, 103 Pa. 77; Chambers v. Miller, 7 Watts, 63; Heffernan v. Addams, 7 Watts, 116; Miller v. Hulme, 24 W. N. C. 131; Rowland v. Slate, 58 Pa. 196; Bosler v. Searight, 149 Pa. 241.
    Payments on the stock are not to be credited on the mortgage as payments of either principal or interest: Strohen v. Franklin Saving Fund & Loan Assn., 115 Pa. 273; Haspel v. Moffitt, 32 Pa. Superior Ct. 344; Harris’s App., 18 W. N. C. 14; Freemansburg B. & L. Assn. v. Watts, 199 Pa. 221; Economy Building Assn. v. Hungerbuehler, 93 Pa. 258; Central Building Assn. v. Schmitt, 12 W. N. C. 239; North American Building Assn. v. Sutton, 35 Pa. 463; Spring Garden Assn. v. Tradesman’s Loan Assn., 46 Pa. 493; Early and Lane’s App., 89 Pa. 411.
    April 18, 1910:
   Opinion by

Mr. Justice Brown,

The appellant, who was a stockholder in the George Egolf Building & Loan Association, borrowed $2,000 from it on a mortgage, pledging his stock as collateral security therefor. For some default on his part a sci. fa. was issued on the mortgage, but was discontinued shortly afterwards upon his paying all costs and a counsel fee. Nearly two years later, on November 4, 1909, the building association entered judgment against the appellant on his bond accompanying the mortgage, and his complaint is that he ought to have been allowed a credit of $586.09 — the value of his ten shares of stock at the time the judgment was entered. His petition, denied by the court below, was to have the judgment entered against him reduced to the extent of the value of his stock, and the question raised on this appeal is his right to the credit claimed.

About three months after the sci. fa. on the mortgage had been abandoned an attachment ad lev. deb. was issued by a judgment creditor of the appellant, under which his stock in the association was attached. There is justification for the charge made that the attaching creditor — the treasurer of the association — and his counsel, who was its solicitor, colluded to reach this stock as an asset of the appellant to be applied to the payment of the judgment upon which the attachment issued; but the collusion was a lawful one, to do a lawful thing. Patterson, though the treasurer of the association, had a right to issue his attachment, in which he summoned himself as treasurer as the garnishee; his counsel, though solicitor for the association, had the right to direct the sheriff to make no service upon the defendant, and to appear for both the attaching creditor and the garnishee, and the association had the right to keep Cleaver in utter ignorance of the attachment of his stock. These and other matters to which our attention has been directed were not illegal, and this is all we need say about them. With the good taste exhibited by the attaching creditor and his counsel we have no concern. We pass only upon the legal right asserted by the appellant.

Appellant’s claim that he ought to be allowed a credit for the value of his stock is based upon what he alleges was such an appropriation of it by the appellee. He frankly admits that he had made no such appropriation and relies solely upon what appears in the praecipe for the sci. fa. on the mortgage as evidence of the appropriation by the appellee. In that praecipe, signed by the association’s solicitor and sworn to by its secretary, there was a statement that the mortgagor was entitled to credit for his stock. How much is not stated. It was not shown by the appellant that either the solicitor or the secretary of the association had any authority to give such credit or to make any appropriation of the value of the stock to the mortgage indebtedness, while the affirmative proof submitted by the appellee was that neither had any such authority, and, therefore, when the proceedings on the mortgage were discontinued, the liability of the appellant on his bond and mortgage continued to be just what it had been before the sci. fa. was issued. It is admitted that prior to that time there had been no appropriation of the stock by either the mortgagee or the mortgagor. But there is evidence coming from the appellant himself, in writing, shortly before the judgment was entered, that he regarded the whole amount of it as due, and that he was liable to pay it without any credit for the stock. On October 12, 1909, he was informed by the secretary of the association that his stock had been attached and that he would have to pay off “ the full $2,000.” To this he replied, on the twenty-sixth of the same month, that as “the $2,000 must be paid we must have a little more time,” adding that he would get from another building association the balance which he needed to pay off the entire amount of the judgment. It would have been error to allow him the credit asked for. The stock had been attached and had passed beyond his power to apply it to his indebtedness. The appeal is dismissed and the judgment as entered is affirmed.


text:
    Zeigler, Appellant, v. Simplex Foundation Company.

      Negligence — Master and servant — Fellow servant.

    1. In an action against an employer to recover damages for the death of a workman killed by the falling of the weight of a pile driver under which he was working, a nonsuit is properly entered where the evidence shows that there was no defect or break either in the apparatus or the engine which ran it, and the only evidence as to the action of the engineer before the accident, was that he made a motion which would cause the hammer to rise but not to fall; and there is no evidence that the engineer was incompetent, or if he was, that the defendant knew of his incompetency, or that it was the cause of the accident.

      Evidence — Expert testimony — Opinion.
    2. Expert opinion should not be allowed to be expressed upon a state of facts not supported in some measure by evidence.
    Argued March 23, 1910.
    Appeal, No. 69, Jan. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., Dec. T., 1906, No. 4,857, refusing to take off nonsuit in case of Louisa Zeigler v. Simplex Foundation Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ferguson, J.

      At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Ferguson, J., filing the following opinion:
    We have given careful consideration to the evidence in this case and are of opinion the motion to take off the nonsuit must be overruled. The deceased was killed by the falling of the weight of a pile driver under which he was working. The weight, by the direction of the deceased, who was foreman of the gang of men, had been raised in order that the follower block might be blown out. The particular work upon which the men were engaged was the driving of steel tubes into the ground for the purpose of making concrete foundations, and the follower block was a contrivance of wood which received the blow of the hammer on the top of the tube in order to avoid the effect of metal striking metal. This follower block having become in some way jammed, it was necessary to remove it by boring a hole with an auger and blowing it out by gunpowder. It was upon this work that the deceased was engaged at the time he was killed. The engine was supplied with two drums, on one of which was wound the steel wire rope attached to the hammer. When steam was applied and the engine started this drum would not move unless the lever attached thereto was depressed. The effect of this motion would be to cause the drum to revolve in a direction to raise the hammer. If the lever were then raised to a vertical position the drum would revolve in the other direction and the hammer would fall. To raise the hammer and to hold it suspended and motionless it was necessary to depress the lever until the hammer reached the desired point, and to insert a metal clutch called a dog. It was impossible for the drum to revolve so long as the clutch remained in place. If, however, the lever was depressed and the drum revolved in the direction to raise the hammer, the dog would fall out, thereby enabling the drum to revolve in the other direction upon the raising of the lever.

      There was no dispute, as to the mode of operation of the engine and the drum.
    Upon the day when the deceased was killed, he instructed the engineer to raise the hammer, to dog .the drum and to go away from the engine. Zeigler, the deceased, and another man then proceeded to bore out the follower block, and while so engaged the hammer fell and Zeigler was killed. One witness testified he was watching the engineer, who stood in front of his engine, and that he made no motion or movement of any kind, and that when the hammer fell he saw that the engine was running, and that the engineer had the lever down and was bearing his weight on it.
    The hammer fell in the manner it was designed to fall. There was no break in the wire rope, neither was there a change in the course in which the hammer was to fall. There was not a particle of evidence to show any defect in the engine or in the hoisting apparatus. The conclusion that will naturally follow the reading of the evidence is that the witness who testified that the engineer made no motion was mistaken, and that in point of fact the engineer did make the movement to press the lever down, thus releasing the dog, followed by a raising of the lever, which caused the hammer to drop, • and an immediate lowering of the lever for the purpose of raising it again, and it was in this last position of pressing the lever down which the witness said was the only position in which he saw the engineer. But the jury was not constituted to find facts outside of the evidence. There was no evidence of any previous motions of the engineer. In fact, the evidence is he made no previous motions and there was nothing before the jury but the fact that the engineer’s only position was one in which the hammer would be raised. We have, therefore, an engine and a hoisting apparatus, as to which there is no evidence of defect or break, and an accident resulting from a proper action of the apparatus, though as a result of a movement of the engineer which would not cause that action. The court could not allow the jury to guess at some cause for the accident other than that shown by the proofs. See Alexander v. Water Co., 201 Pa. 252.
    In order to provide an explanation for the accident, certain questions were asked an expert while on the stand as to what might happen in case the spring which controlled the action of the drum were out of order, and upon objection being made the objection was sustained for the reason that expert opinion could not be allowed to be expressed upon a state of facts not supported in some measure by evidence. See Reber v. Herring, 115 Pa. 599. We think this ruling was proper.
    The burden was upon the plaintiff to prove a negligent cause for the accident. She proved a machine without defect and a natural and proper movement of it, though, at an improper time, and that move accompanied by action of the engineer which would make the result impossible. The evidence therefore failed to make out a case of defective machinery, and if the case were left to the jury the cause of the accident would have been mere speculation. The plaintiff also contended that the defendant was negligent in that it had employed an incompetent engineer, and as a result of such incompetency Zeigler came to his death. In the absence of evidence to show what caused the hammer to fall, it is difficult to see how that result can be charged to the incompetency of the engineer. Where incompetence is alleged it is necessary to show a reputation for incompetency and to bring home to the defendant notice of incomJ>etency and to show that such incompetency was the cause of the accident. The evidence certainly does not warrant a finding that the engineer had the reputation for incompetency, and as to the fact of incompetency being brought to the attention of the defendant, while it is true there was evidence that the superintendent, Edgerton, who, for the purposes of the case, could be considered a vice principal, did, on several occasions, criticise the engineer regarding his manner of running the engine, none of the things which appear in the evidence would seem to justify a finding that the man was incompetent for his duties, especially in view of the fact that in the plaintiff’s case there was evidence that the engineer was licensed under the laws of the state of Massachusetts to operate a hoisting engine. But, beyond this, as above stated, it is necessary, where incompetency is alleged, to show that the accident resulted from such incompetency. The hammer fell in this case in accordance with the usual manner in which it was operated. Its course was not changed and nothing was broken, and if a steel tube was underneath it to be driven into the ground by its weight, there was nothing in the way in which the hammer fell to suggest a lack of knowledge or experience on the part of the engineer. This assumes that the engineer made the movements which caused the hammer to fall. As there is no evidence that he made such movements, but rather the only movement he made was one which would cause the hammer to rise, it follows that were his incompetence proven, there is nothing to connect such incompetency with the accident. See Frazier v. Pennsylvania Railroad Co., 38 Pa. 104; Keystone Bridge Co. v. Newberry, 96 Pa. 246; Snodgrass v. Carnegie Steel Co., 173 Pa. 228.
    It is also contended that the defendant was negligent in that the superintendent, Edgerton, was not present at the time of the accident, and that his absence constituted negligence on the part of the defendant. There was nothing in the evidence which would warrant a finding that the presence of Edgerton was necessary to the operation of the work of the gang of men. The deceased was the foreman and gave the orders to the men under him; Edgerton was the superintendent and in charge of the general work at that place. Unless the peculiar circumstances surrounding the work required the presence of the employer or his immediate superintendent, and the work could not properly proceed without the presence of one or the other, there is no merit in this branch of the case. We find no evidence which would warrant such a conclusion.
    The motion to take off the nonsuit is overruled. '

      Error assigned was refusal to take off nonsuit.

      Claude L. Both, for appellant.
    If a machine, after having been properly stopped, starts of itself, the fact unexplained is evidence of some defect in the machine which the superintendent should have discovered, and is therefore evidence of defendant’s negligence: Byrne v. Boston Woven Hose & R. Co., 191 Mass. 40 (77 N. E. Repr. 696); Moynihan v. Hills Co., 146 Mass. 586 (16 N. E. Repr. 574); Lynch v. Stevens & Sons Co., 187 Mass. 397 (73 N. E. Repr. 478); Fountaine v. Wampanoag Mills, 189 Mass. 498 (75 N. E. Repr. 738); O’Neil v. Ginn et al., 188 Mass. 346 (74 N. E. Repr. 668); McConnell v. Penna. R. R. Co., 223 Pa. 442.
    Circumstances warranting an inference of the existence of a defect in machinery are sufficient evidence of negligence without direct proof of the exact nature of the defect: Lyttle v. Denny, 222 Pa. 395; Delahunt v. United T. & T. Co., 215 Pa. 241; McCoy v. Ohio Valley Gas Co., 213 Pa. 367; Byrne v. Boston Woven Hose & Rubber Co., 191 Mass. 40 (77 N. E. Repr. 696); Kleibaz v. Middleton Paper Co., 180 Mass. 363 (62 N. E. Repr. 371); Stoner v. Fuel Supply Co., 40 Pa. Superior Ct. 599; O’Donovan v. Phila. Co., 223 Pa. 234; Martin v. Transportation Co., 185 Mass. 487 (70 N. E. Repr. 934); Willey v. Boston Elec. Light Co., 168 Mass. 40 (46 N. E. Repr. 395); Geloneck v. Dean Steam Pump Co., 165 Mass. 202 (43 N. E. Repr. 85).

      Thomas Learning, for appellee.
    —The court could not allow a jury to speculate and guess at some cause, contrary to the proofs, and thereupon infer negligence without evidence: Alexander v. Water Co., 201 Pa. 252; Ford v. Anderson, 139 Pa. 261; Johns v. Penna. R. R. Co., 226 Pa. 319.

      April 18, 1910:
    Incompetency of the engineer would have to be proved; not by particular acts, but by reputation: Frazier v. R. R. Co., 38 Pa. 104.
    Not only was there no proof of incompetency, but no actual or constructive notice thereof was brought home to the defendant: Keystone Bridge Co. v. Newberry, 96 Pa. 246.
    There was no proof that the accident was caused by any incompetency: Snodgrass v. Carnegie Steel Co., 173 Pa. 228.
   Per Curiam,

The judgment in this case is affirmed on the well-considered opinion of the court below in refusing to take off the nonsuit.


author: Pee Curiam,

text:
    Wallace, Appellant, v. Steele.

      Contract — Evidence—Parol evidence — Nonsuit.
    Where a building contract in writing is complete in itself as to the parties, terms, conditions and stipulations, an alleged contemporarneous oral agreement that the building should be of a certain tensile strength, cannot be shown to vary the written agreement except by evidence which is clear, precise and indubitable.
    Argued March 24, 1910.
    Appeal, No. 303, Jan. T., 1909, by plaintiffs, from order of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,008, refusing to set aside nonsuit in case of John H. Wallace and Francis W. Wallace, trading as John H. Wallace & Brothers, v. William Steele et al., trading as William Steele & Sons.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a building contract. Before Staake, J. At the trial the court entered a compulsory nonsuit for the reasons stated as follows:
    This case is one in which the plaintiffs claim damages from the defendants, and a,ver as the basis of those damages that defendants, who were engaged in the business of contracting and erecting buildings in October of 1899, at that time entered into a written agreement with the plaintiffs, a copy of which agreement is attached to the pleadings and set out as a part of the basis of the claim. The written agreement was to erect a three-story brick mill on the site of the old plant on Juniper street, and it is “averred that “the said defendants also verbally agreed at the time, in addition to the aforesaid written agreement, to erect and build a mill to conform to their business, and of sufficient tensile strength to bear the weight and burden of said machines properly and safely, and especially those that were to be placed on the second floor, and with little or no deflection or vibration when running, and with the distinct understanding that the mill was to be satisfactory to the said plaintiffs and in conformity with the whole agreement.”
    Then the breach of the agreement is alleged to be by reason of the “faulty construction, low grade of material used and poor workmanship, in addition to misrepresentation on the part of the defendants, who violated and broke their contract in not erecting a building as they agreed to,” etc.
    Now, it may be a question whether there has been any evidence submitted to the jury which fully covers all of the averments as to what the alleged verbal agreement actually was. Surely, there has been no witness who in terms testified that there was any verbal agreement covering all of the points which I have indicated. If there is a clear and well-established principle of law, it is that the very object of all written agreements is to avoid all the disputes between the parties which might arise as to what had or had not been agreed upon or understood between them prior to the execution of the written agreement. Therefore, the result of all prior conferences and consultations and considerations is presumed to be set out in the written agreement. We start with that presumption. ■ The law, however, says that where you can show by clear, precise and indubitable evidence certain facts which were the inducement for entering into the written contract, they may under certain conditions be considered a part of the whole agreement, and to that extent be allowed to alter, vary or even contradict the written agreement. To do that, however, you must show either a vagueness on the part of the written agreement, or you must show that there is something in the written agreement that prevents its being considered as a whole, entire agreement, and that, therefore, in order to get the real intentions of the parties, you must permit it to be varied or altered by the parol testimony.
    Such alterations, variations or contradictions, however, are not favored in the law. Therefore, it is said that the testimony in support of them must be clear, precise and indubitable.
    Now, we start out here with the fact that some doubt, at least, is cast upon the question by the fact that we have here the evidence of the adoption of an agreement which appears on the face of the original to be a “uniform contract,” the form of contract adopted and recommended for general use by the American Institute of Architects and the National Association of Builders, and presumably from the printing in red ink at the top, .the contract in this form is furnished on application by the Master Builders’ Exchange of Philadelphia. When we look at the contract we see that the names of the parties are correctly stated — that the object for which the building is to be used is stated: “The erection of a three-story manufacturing building,” — with the location properly described, but apparently containing an error that the building was to contain in front on Juniper street ninety feet and extending in depth westwardly eighty feet, instead of the dimensions being the other way. We find further that the price for which the work is to be done is stated, with a stipulation as to how it is to be •paid, as well as the. provision that no liens are to be filed, and with all of the usual clauses of such an agreement. There is nothing in it at all to indicate that the conversations which took place between these parties did result in their reaching the dignity of a meeting of minds and become in the law an agreement upon the part of the defendants to the effect that the building which they were to build would have to bear a certain specified weight. There is no reference to the seven machines or to the fourteen tons weight each, or that it was to be satisfactory to the owners. All of these important matters which are said to have been discussed before the actual signing and execution of the agreement, are not in the agreement itself.
    In addition to that, we find that at some subsequent time, subsequent to the date when it is admitted the building was completed and when the owners carried out their part of the contract by paying cash and notes which were subsequently renewed, as has been testified here, when additional work was done which was not indicated in the plan which was made a part of the contract and woven into it by the terms of the contract, the owners themselves, instead of complaining that the defendants had not lived up to the contract, not only paid them their money, but they actually paid them some hundreds of dollars extra which they would have been under no obligation whatever to pay them if the contract was the parol agreement which it is claimed here it was, in addition to the written agreement.
    For these and other reasons which might be stated, the court is of the opinion that there has not been established here by testimony which is clear, precise and indubitable, such a parol contract as would justify the court in saying that it could be construed to alter, vary or contradict the written agreement, which is not vague apparently in any particular, but is a complete contract in itself. Further than that, even admitting that the written contract had been so varied, altered or contradicted, we are met with the question as to whether the plaintiffs have sustained their issue, which is to be tried by the jury, by showing faulty construction, low grade of material used, poor workmanship, carelessness and negligence in the premises. I think that on that point the only evidence that was offered was that which the court ruled out at the time it was offered, and that was. the question of the worm-eaten girder or plank which the jury heard referred to. All of the other evidence to substantiate that charge was that all these things alleged were to be inferred because at some time in the history of the building, some years after the admitted period of completion as indicated by the payments, there did exist a certain deflection in the building. Further,, as against that contention of the plaintiffs, we have had the testimony of their last expert that the machinery here, if it had been treated in a., certain way, could have been well sustained by the construction, plan or scheme of this building, and that the purposes of the erection of such a building had all been provided for in the plan which is in evidence, which had been examined by the bureau of building inspection and approved by that bureau. That witness testified that there was nothing in the materials or workmanship that would have led to any condemnation on the part of the building bureau • of the municipality. Then we have certain testimony which shows expenditures upon the part of the plaintiffs which to a considerable extent may have been brought about by a substitution of a different character of structure than the one originally put up by the defendants.
    For these reasons, and the reasons stated by the court yesterday, which are a part of the record, and will not therefore be repeated, the court believes there has not been sufficient definite testimony of damages suffered by reason of the causes set out in the pleadings, to be submitted by the court to the jury, and upon the whole consideration of the case the court feels constrained to grant the motion for a nonsuit.

      Error assigned was refusal to take off nonsuit.

      April 18, 1910:

      H. J. Rebman, with him James Gay Gordon, for appellants.
    Where, as in this case, the plaintiffs have relied upon the special skill and knowledge of the defendants and upon their representation that the paper to be signed was only in furtherance of the controlling purpose of the contract, it is equivalent to fraud for the defendants to avoid the force of the representations which induced the signing of the written agreement while they seek to shield themselves behind the rigid and narrow terms of the writing itself: Christ v. Diffenbach, 1 S. & R. 464; Cullmans v. Lindsay, 114 Pa. 166; School Furniture Co. v. Warsaw School Disk, 130 Pa. 76; Sutch’s Est., 201 Pa. 305; Fidelity & Casualty Co. v. Harder, 212 Pa. 96; Keller v. Cohen, 217 Pa. 522.

      George S. Graham, with him Joseph Gilfillan, for appellees,
    cited: Streator v. Paxton, 201 Pa. 135.
   Pee Curiam,

For the reasons given by the court below in entering the nonsuit the refusal to take it off is affirmed.


text:
    Johnson, Appellant, v. Gaul.

      Wills — Partition—Trusts and trustees — Parties.
    1. Where a testator gives, devises and bequeaths all of his “property, real, personal and mixed,” to his two daughters in equal shares, and directs that the share “coming” to one of his daughters shall be invested by a trustee subsequently named, the interest thereof to be paid to such daughter and after her death the principal to be paid to the other daughter or her children, the daughter whose share has been given in trust has no standing to ask for partition.
    2. Partition is a possessory action, its purpose and effect being to give to each of a number of joint owners the possession he is entitled to of his share in severalty. The indispensable prerequisite to its maintenance is that the plaintiff be a joint owner with the defendant, and as such entitled to a separation of his share and possession of it.

      Argued Feb. 28, 1910.
    Appeal, No. 210, Jan. T., 1909, by plaintiff, from judgment of C. P. Berks Co., May T., 1908, No. 24, for defendant non obstante veredicto in case of Lizzie Yan Steffy Johnson v. Mary M. Gaul.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Summons in partition.
    At the trial the jury rendered a verdict for the plaintiff by instruction of the court. Subsequently judgment was entered for defendant non obstante veredicto.
    Endlich, P. J., filed the following opinion:
    This is an action of partition. The plea is non tenent insimul. At the trial, there being no dispute about the facts, a request for binding instructions for defendant was formally declined, and a verdict was directed for plaintiff, the legal question arising being postponed for future consideration upon a rule for judgment non obstante veredicto.
    Allen Yan Steffy died January 19, 1907, leaving personal property amounting to less than $100 in value, the real estate involved in this action, and a will dated October 10, 1906, in which he directed payment of his debts and funeral expenses and then provided as follows:
    “Second. I give, devise and bequeath all my property, real, personal and mixed, to my two daughters, Mary [defendant] and Lizzie [plaintiff] in equal shares.
    “Third. The share coming to my daughter Lizzie shall be invested by the hereinafter named trustee, the interest thereof to be paid, semi-annually to my daughter Lizzie, and after her death, the principal sum thereof to be paid to my daughter Mary or her children.
    “Fourth. I hereby appoint the Pennsylvania Trust Co.....trustee for my daughter Lizzie.”
    Clearly “the” share spoken of in the third clause as coming to plaintiff is what the testator gave her in the second: see Patterson v. Kountz, 63 Pa. 246, and means the whole of it: Bakes v. Reese, 150 Pa. 44; Eckert v. Trust Co., 212 Pa. 372. That indeed it must be understood to include the realty is as sure as can be when the insignificance of the testator’s personal estate is borne in mind, as it should be: Postlethwaite’s App., 68 Pa. 477; Follweiler’s App., 102 Pa. 581. Moreover, it accords with a familiar rule of testamentary interpretation which it is not necessary to fortify with the citation of decisions, that these three clauses, separated though they are by spacing, punctuation and numbering, must be read together in order to get the real sense of the testator. Thus read, the unmistakable intent appearing from the language of the will is to divide the estate into two parts equal in value, and to give the one to defendant absolutely and the other to a trustee charged with managing the same and paying the income to the plaintiff during her life, and at her death handing over the corpus to the defendant, or to her children if she be dead. This intent being lawful must, under the cases referred to in an opinion just filed in Kemp v. Reinhard, C. P. No. 17, April Term, 1909, be given effect. Whether that involves a power on the part of the trustee to convert the realty into money, or whether it by itself works such a conversion, is not now an essential inquiry. What is decisive of the question here presented is that the land, so long as it remains such in fact, is given, not to the plaintiff, but to the trustee for a purpose which would be defeated if the plaintiff were permitted to prevail in this proceeding. As pointed out in Seiders v. Giles, 141 Pa. 93, partition is a possessory action, its purpose and effect being to give to each of a number of joint owners the possession he is entitled to of his share in severalty. The indispensable prerequisite to its maintenance is that the plaintiff be a joint owner with the defendant and as such entitled to a separation of his share and possession of it. Where the plaintiff’s interest is not such as confers that right; where the ownership of the undivided portion of the property is not in the plaintiff, but in a trustee clothed with the title and charged with the management of the property, i. e., with an active trust,.which necessarily excludes the plaintiff’s right of possession and control of it — it cannot be said that the plaintiff has a standing to ask for partition. The decisions in Hutchison’s App., 82 Pa. 509, and Clark’s Est., 134 Pa. 140, fully bear out this proposition, if authority for it be needed.
    April 25, 1910:
    It follows that the defendant’s plea in this case is sustained by the evidence, that her request for binding instructions was entitled to be affirmed, and that judgment must now be entered accordingly.

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

      Stephen M. Meredith, with him Earle I. Koch, for appellant,
    cited: Harper v. Blean, 3 Watts, 471; Snyder v. Bear, 144 Pa. 278; Fulton v. Fulton, 2 Grant, 28; Shirey v. Postlethwaite, 72 Pa. 39; Gillmer v. Daix, 141 Pa. 505; Coles v. Ayres, 156 Pa. 197; Richards v. Bentz, 212 Pa. 93; Robinson v. Jones, 222 Pa. 56; Miller v. Schneider, 5 Rawle, 140.

      Isaac Hiester, with him Ira P. Bothermel, for appellee.
    A fee may be restrained by a subsequent clause to convert it into a life estate: Urich v. Merkel, 81 Pa. 332; Livezey’s App., 106 Pa. 201; Krebs’s Est., 184 Pa. 222.
    Where a testator gives a share of his estate in trust to invest it and pay over the income to one person for life and the principal to others upon his death the life beneficiary has no standing to demand partition of the real estate included in that share: Clark’s Est., 134 Pa. 140; Hutchison’s App., 82 Pa. 509; Willing v. Brown, 7 S. & R. 467; Longwell v. Bentley, 23 Pa. 99
   Per Curiam,

The judgment is affirmed on the opinion of Judge Endwch.


text:
    Deppen, Appellant, v. Light.

      Deceit — False statements — Evidence.
    To establish an action to recover damages, alleged to have been sustained by reason of false and fraudulent statements made by the defendant concerning the value of certain bonds and shares of-stock, which the plaintiff purchased on the defendant’s recommendation, it is essential for the plaintiff to prove that the statements were untrue, and that they were made in bad faith.
    Argued Feb. 28, 1910.
    Appeal, No. 308, Jan. T., 1909, by plaintiff, from judgment of C. P. Berks Co., March T., 1908, No. 63, on verdict for defendant, in case of Anna I. Deppen v. Wellington W. Light.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass for deceit.
    At the trial Stevens, J., charged as follows:
    The plaintiff, Anna I. Deppen, has brought this action against the defendant, Wellington W. Light, to recover damages, alleging that she was induced by false and fraudulent representations to make certain purchases of stock from the defendant.
    This action is what is known in law as an action of fraud or deceit, and it is incumbent upon the plaintiff to offer positive proof, not only that the representations were made, but that the representations which were made were false and fraudulent.
    It appears that on April 7, 1903, the plaintiff went to the defendant and purchased twenty shares of the capital stock of the National Brass & Iron Works, fourteen shares of the capital stock of the Montello Brick Works and ten shares of the Lebanon Valley Iron Works. It is conceded that the stock of the Lebanon Valley Iron Works is good, and all the testimony that has been offered has been concerning the truth of the representations made as to the value of the other stocks.
    April 25, 1910:
    It appears from the plaintiff's own testimony that the stocks at that time were marketable stocks selling at about the price, at the exact price, at which they were sold to the plaintiff, and there is no evidence here concerning the falsity of the representations made at the time. It may be unfortunate that afterward some of these enterprises failed, but the evidence which the jury must consider is that which relates to the time when the sale was made. I find in this testimony no positive evidence in support of the various allegations made by the plaintiff, and I therefore direct you to find a verdict in favor of the defendant.

      Error assigned was in giving binding instructions for defendant.

      E. H. Deysher, for appellant.

      C. H. Buhl, with him J. Milton Miller, for appellee.
   Per Curiam,

This was an action to recover damages alleged to have been sustained by reason of false and fraudulent statements made by the defendant concerning the value of certain bonds and shares of stock which the plaintiff purchased on his recommendation. To establish her action it was essential that she should prove that the statements were untrue and that they were made in bad faith. The learned trial judge found that she did not prove either and directed a verdict for the defendant. We find no reason to doubt the correctness of his conclusion. The judgment is affirmed.


text:
    United States Brick Company to use, Appellant, v. Middletown Shale Brick Company. United States Brick Company to use, Appellant, v. Reading Shale Brick Company.

      Set-off — Insolvency—Receiver—Purchase of claims for purposes of set-off.

    1. The appointment of a receiver, and not the filing of a bill praying therefor, is to be taken as changing the situation in such manner as to put an end to the right of the insolvent company’s debtors to acquire claims against it capable of being set off against its demands when sued for by the receiver.
    2. A debtor of an insolvent corporation, knowing of the insolvency of the corporation, and that an application for a receiver has been made, may purchase a claim against the corporation while the application is pending and use it as a set-off against the receiver.
    Argued Feb. 28, 1910.
    Appeals, Nos. 359, Jan. T., 1909, and No. 360, Jan. T., 1909, by plaintiffs, Irom orders of C. P. Berks Co., Feb. T., 1909, Nos. 54 and 55, discharging rules for judgments for want of sufficient affidavits of defense in cases of United States Brick Company to use of Robert Pennington, Receiver, v. Middle-town Shale Brick Company and United States Brick Company to use of Robert Pennington, Receiver, v. Reading Shale Brick Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit by a receiver to collect, an indebtedness due an insolvent corporation.
    Rule for judgment for want of a sufficient affidavit of defense.
    Endlich, P. J., filed the following opinion:
    This is a rule for judgment for want of a sufficient affidavit of defense. The statement avers that the United States Brick Company and the defendant had the same treasurer; that as treasurer of the former and with the knowledge, etc., of the officers and directors of both companies, he advanced its moneys to himself as treasurer for the latter company and disbursed them for its purposes; that as treasurer of the United States Brick Company he received from himself as treasurer of defendant company partial reimbursements upon such advances; that on April 25, 1907, there was a balance due the United States Brick Company by the defendant company amounting (for present purposes) to $11,419.19; that on and after July 1, 1907, the United States Brick Company became and remained insolvent; that on August 31, 1907, a bill in equity was filed on behalf of creditors of the company praying for a receivership; that thereupon, on July 27, 1908, a receiver, the use plaintiff in this action, was appointed; and that of all of this the officers and directors of the defendant company were fully aware. The affidavit of defense, made by the present treasurer of the defendant company, now under a management different from that previously controlling its affairs, disclaims information as to and neither admits nor denies the allegations of the statement concerning the knowledge, etc., of the then officers and directors of the two companies of the actions of their treasurer, and avers that on April 1, 1907, the United States Brick Company made its note (secured by 600 shares of Middletown Shale Brick Company stock) for $35,000, payable six months after date to its own order, and in consideration of the paypient of a like sum indorsed and delivered it to B. Dawson Coleman, together with the collateral; that, the note not being paid at maturity, the collateral was sold and the net proceeds of the same, $1,793.88, credited on the note, leaving a balance-due upon it of $33,205.12; that in December, 1907, the defendant company purchased the note from Coleman for value; and that consequently, instead of the defendant company being indebted to the United States Brick Company, the latter owes the defendant $21,791.93, with interest.
    That the whole doctrine of set-off is in.its origin founded on equitable considerations: Hibert v. Lang, 165 Pa. 439, and that the principles of equity may be invoked in support of a claim not strictly within the terms of our defalcation act: Hibert v. Lang, 165 Pa. 439; Smith & Co. v. Myler, 22 Pa. 36; Skinner v. Chase, 6 Pa. Superior Ct. 279, 283, is undoubtedly true. But as regards cross demands covered by that act, broadly construed as it is, it has long been settled in this state that a defendant’s right of set-off, unconnected with the cause of plaintiff’s action, rests upon the statute: Rider v. Johnson, 20 Pa. 190, 192; Tagg v. Bowman, 108 Pa. 273, 277, and is not therefore controllable by any equitable discretion: Dry v. Filbert, 2 Woodw. 134. For this reason, as to such demands, the decisions of other jurisdictions where the right is looked upon as an equitable rather than a legal one, are inconclusive; and similarly inapplicable are those of our own courts involving demands not embraced in the defalcation act. It is with a demand which is embraced in it that we have to do here. Its admissibility is not ruled by decisions such as Yenango Nat. Bank v. Taylor, 56 Pa. 14, and Thorp v. Wegefarth, 56 Pa. 82, in which the questions of set-off adjudicated arose, not under our statute, but under the provisions of the national banking law — nor by those turning upon the phraseology of the banking laws of this state: Philips v. Bank, 18 Pa. 394; Basehore v. Rhodes, 85 Pa. 44. No doubt, like all statutes: Thomas’s Elect., 198 Pa. 546, 550, our defalcation act is subject to the canon of interpretation forbidding a construction, if avoidable, which would lead to unjust or inequitable results in their operation. Thus, in a number of instances, the right has been denied to a member of an insolvent mutual insurance company to set off against his liability as such to the company a demand held by him against it as an insured or as the assignee of an insured. But those decisions rest upon the ground stated by Chief Justice Gibson in Hillier v. Ins. Co., 3 Pa. 470, at p. 474, that every member of such a company “is an insurer as well as a party insured; and that he is bound to make compensation, as well as entitled to receive it”— so that to permit him to set off his demand against his liability would work a gross injustice to his fellows and a virtual abrogation of his fundamental contract with them: Long v. Ins. Co., 6 Pa. 421, 424; Schofield v. Lafferty, 17 Pa. Superior Ct. 8. Similarly a stockholder in a corporation owing unpaid stock subscriptions cannot after the company’s insolvency set off against that liability a claim held by him against the company: Macungie Savings Bank v. Bastían, 10 W. N. C. 71 — because, whether paid or unpaid, the capital stock constitutes a trust fund for creditors generally: Macungie Savings Bank v. Bastían, 10 W. N. C. 71; Pipe &Foundry Co. v. Bullock, 174 Pa. 93, which a stockholder is bound by his contract of subscription to make up to the extent undertaken by him, and which by that contract he has waived the right to impair to the detriment of other creditors by such set-off.
    It is of course true that the allowance of the set-off here claimed may be regarded as in effect the concession to defendant of a preference over other creditors of the United States Brick Company, which, even if otherwise unassailable, will produce manifest inequality. And yet, with every disposition to escape from such a result if possible, it is not seen how for the purpose of this rule it can be rejected.
    The affidavit of defense, under the practice act of 1887, is made to the plaintiff’s declaration: Ashman v. Weigley, 148 Pa. 61. Its sole purpose is to meet the plaintiff’s demand as declared by him and prevent a summary judgment; wherefore it cannot be given the effect of inferentially admitting anything making against defendant which is not averred in the declaration: Taylor v. Beatty, 202 Pa. 120, 126-127. The declaration in this case, in the nature of things, has nothing to say concerning the transaction between Coleman and the defendant. In the averment in the affidavit of defense of the transfer of the United States Brick Company’s note by Coleman to defendant, it was therefore not necessary to negative an intent on defendant’s part in the acquisition of the note to use it as a set-off against the United States Brick Company’s demand, even if the existence of such intent would forbid its use for that purpose, which it may not: Primer v. Kuhn, 1 Dali. 452; Rider v. Johnson, 20 Pa. 190, 192; McGowan v. Budlong, 79 Pa. 470; Skinner v. Chase, 6 Pa. Superior Ct. 279, 282, so long as the transfer was actual and bona fide, making the defendant the absolute owner of the note: see Oyster v. Short, 177 Pa. 589, as the affidavit explicitly avers it to be. Nor does the fact of the insolvency of the United States Brick Company at the time of the transfer, declared and not denied to have been known to defendant, of itself exclude the availability of the defense made. There is abundance of authority, from Boinod v. Pelosi, 2 Dali. 43, down at least to Burford v. Fergus, 165 Pa. 310, that after a transfer of an insolvent’s property or demand, his debtor cannot, with notice of the insolvency and transfer, buy in the insolvent’s obligations and set them off against his own liability. But beyond this none of the authorities dealing with cross demands covered by the statute seem to go. And it may be noted that in Nix v. Ellis, 118 Ga. 345 (45 S. E. Repr. 404), it is said that decisions holding claims purchased after knowledge of insolvency unavailable for purposes of set-off are based upon the language of particular statutes. It would seem to follow that, in order to bring the defense here set up within the prohibition of our authorities, it would have to be considered that the filing of the bill in equity for a receivership was, upon its culmination in the appointment of a receiver, to be treated as a species of transfer, or sequestration, or impounding of the assets and credits of the United States Brick Company as of the date of its filing. It is not altogether in point to refer to the effect of insolvency or bankruptcy statutes as vesting in the receiver, when appointed, the property and rights of the insolvent by reference to the commencement of the proceeding — even though, as held in Beardslee v. Beaupre, 44 Minn. 1 (46 N. W. Repr. 137), the particular statute contained no express provision so declaring. The necessity of that effect under such statutes is deemed to result from their peculiar scope and purpose. It was pointed out in Nut-tall & Co. v. Duryea Power Co., C. P. Berks Co., No. 927, Eq. Dock., 1907, that the jurisdiction exercised by courts of equity in the appointment of receivers is" essentially unlike and serves different objects from that created by insolvency and bankrupty statutes, and remains unaffected by these. Nor is it seen how, consistently with the principle that in equity the situation of the parties at the time of the decree, and not at the commencement of the suit, is the criterion: Shaw v. Bayard, 4 Pa. 257, 258-259, the rule contended for by plaintiff’s counsel can be. regarded as one generally applicable in proceedings of the character here in question. 'Where upon the filing of the bill and pending its disposition an injunction is granted against the payment of obligations, transfer of securities, etc., such a result may practically ensue, in accordance with the decision in Colt v. Brown, 78 Mass. 233. But there is no allegation here of the interposition of any such restraining order. It is indeed laid down in Nix v. Ellis, 118 Ga. 345 (45 S. E. Repr. 404), that in the absence of a statutory provision on the subject the filing of the petition for the appointment of a receiver closes the right to purchase claims against the insolvent and use them by way of set-off when sued by that officer. The decision does not hinge on that point; for the cross demand antedated the filing of the petition for receivership and the set-off was bound to be allowed whether the principle stated be accepted or not. But aside from this, the principle itself seems to be at variance with the doctrine of our own decisions. It has long been held that in cases of assignments for benefit of creditors, the date of the assignment fixes the rights and status of all parties: Miller’s App., 35 Pa. 481. The same rule applies to cases where corporations are dissolved and placed in the hands of receivers, the rights of creditors being fixed as of the date of the decree: Dean & Son’s App., 98 Pa. 101; Oyster v. Short, 177 Pa. 601, 606. And so, according to Cowan v. Plate Glass Co., 184 Pa. I, where a corporation, upon bill in equity for the appointment of a receiver, is adjudged insolvent and a receiver appointed. It is suggested that in view of Pangburn v. Vault, etc., Co., 205 Pa. 83, it must be considered that Cowan v. Plate Glass Co. would not have been decided as it was, had the fact of the company’s insolvency at the time of the giving of the note there in question appeared. But a careful reading of the two cases shows that the distinction between them is plain and” broad, and that there is nothing in the latter qualifying the principle declared in the earlier one. In short, the effect of the decisions binding in the disposition of this rule would appear to be that the appointment of the receiver, and not the filing of a bill praying therefor, is to be taken as changing the situation in such manner as to put an end to the right of the insolvent company’s debtors to acquire claims against it capable of being set off against its demands when sued for by the receiver. The occurrence of the change at that precise moment is inevitable from the nature and purposes of the decree itself, which, though not investing the receiver with the legal title to the assets of the company: Singerly v. Fox, 75 Pa. 112, yet involves a prohibition of any intermeddling with the affairs of the company: Treat v. Ins. Co., 199 Pa. 326, and puts them in the custody of the law: Cowan v. Plate Glass Co., 184 Pa. 1, 10, the receiver, as its officer, representing both the corporation and its creditors: State Bank v. Kirk, 216 Pa. 452, 456. And it may be noted that the conclusion indicated conforms to the doctrine stated in Gluck & Becker, Recrs. of Corps. (2d ed.), sec. 89.
    “The rights of the receiver become fixed at the time of his appointment; the rights of creditors of the corporation represented by him then attach; and it would not be equitable to countenance any subsequent arrangement to give any one of them an undue preference over the others. Parties must stand or fall by the condition of things in existence at the time of the appointment of the receiver. . . .”
    It remains only to notice the contention that the Insolvency Act of June 4, 1901, P. L. 404, forbidding the preference of creditors within four months of the commencement of proceedings in involuntary insolvency ought to operate in denial of the defendant’s right to set off the claim acquired by it in December, 1907, the bill for a receivership having been filed August 31, 1907. The argument is that since the statute does not permit a creditor to obtain a preference by payment of his claim within that period, a debtor is not permitted to obtain a like preference by setting off against his liability a claim purchased afterwards with knowledge of the existing insolvency. It is not necessary to consider whether the act of 1901 is suspended by the federal bankruptcy law: Potts v. Mfg. Co., 25 Pa. Superior Ct. 206, or not; Trust Co. v. Comingor, 184 U. S. 18; Randolph v. Scruggs, 190 U. S. 533. It is enough to note that secs. 1 and 2 of the act of 1901, in which the prohibition against preferences appears, speak of transactions between “any person . . . . or corporation, being insolvent or in contemplation of insolvency,” and the party with whom such person or corporation is dealing “with a view to give a preference to any creditor,” etc. In other words, the thing avoided is unmistakably a preference brought or intended to be brought about by a transaction to which the insolvent is a party either actively or passively: Ferguson v. Greth, C. P. Berks Co., No. 4, Nov. T., 1899, E. D. (aff’d 195 Pa. 272) and authorities there cited. From such a provision it is hardly permissible to infer a legislative intent to affect transactions between creditors and debtors of an insolvent to which the latter is in no wise a party, and where those who are parties to it do not appear to be identified with the insolvent or to owe any duty to its other creditors. That a construction of the act of 1901 as contended for would involve the recognition of an implied repeal by it of the statute of defalcations as judicially construed (such construction being part of the law itself: Douglass v. Pike County, 101 U. S. 677, 687) in so far as it may become the means of enabling a debtor, by the acquisition and set-off of a claim against the insolvent, indirectly to secure an advantage over other creditors of the same is very manifest. The question of implied repeal as between two statutes is always one of legislative intent: Fraim v. Lancaster County, 171 Pa. 436. That intent, however, must be primarily sought for in the language of the enactment: Reiser v. Sav. Fund Assn., 39 Pa. 137, 144; Leonard v. Com., 112 Pa. 607, 623; and where the language is plain and unambiguous no intent beyond that clearly expressed by it can be attributed to the legislature: Leonard v. Com., 112 Pa. 607, 623; Dame, Seymour & Co.’s App., 62 Pa. 417, 422. It may very well be that a modification of our law of defalcation in the sense contended for would be an improvement and in the line of equity and fair dealing. Yet, as was pointed out in Nix v. Ellis, 118 Ga. 345 (45 S. E. Repr. 404), in discussing a statute forbidding the set-off of cross demands in certain cases:
    “It will not do to extend the rule beyond the statute, though the reason thereof may apparently be equally applicable to cases outside of its terms; for what is sufficient to induce a legislature to make law will not authorize courts to change law.”
    The conclusion which is thus forced upon the court (though, it may be confessed, not without a feeling that the contrary is supported by many obvious considerations of fairness and expediency), is that the affidavit of defense filed in this ease is, under our law as it now stands, sufficient to prevent the entry of judgment for plaintiff upon this rule.
    The rule to show cause is discharged.

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

      April 25, 1910:

      Isaac Iliester, with him G. W. Pepper, for appellant.
    In determining whether a cross demand shall be allowed as a set-off the court looks to the real ownership of the claim: Philips v. Bank, 18 Pa. 394; Murray v. Williamson, 3 Binney, 135; Wolfersberger v. Bucher, 10 S. & R. 10; Hibert v. Lang, 165 Pa. 439.
    Where a debtor knows that his obligation is not owned by the original creditor and that the real owner has proceeded by suit against the original creditor to establish his title such debtor cannot purchase an obligation of the original creditor and use it as a set-off against a title so established: State Bank v. Kirk, 216 Pa. 452; Diven v. Phelps, 34 Barb. 224; Hillier v. Allegheny County Mut. Life Ins. Co., 3 Pa. 470; Long v. Penn Ins. Co., 6 Pa. 421; Green v. Rick, 121 Pa. 130; Colt v. Brown, 78 Mass. 233; Smith v. Mosby, 56 Tenn. 501; Lanier v. Gayoso Sav. Inst., 56 Tenn. 506; Nix v. Ellis, 118 Ga. 345 (45 S. E. Repr. 404).
    A director of an insolvent corporation cannot obtain a preference for his claim against the corporation by assigning it to a debtor of the corporation pending proceedings to have a receiver appointed in order that it may be used as a set-off: Pangburn v. American Vault, etc., Co., 205 Pa. 83.

      Phillip S. Zieber, of Snyder & Zieber, for appellees.
   Per Curiam,

These appeals involve the same question and were argued together. The judgments are affirmed for the reasons stated in the opinion of the learned president judge of the common pleas, discharging the rule for judgment in No. 359.