author: Mr. Justice Mestrezat,

text:
    Zenatello, Appellant, v. Hammerstein.

      Contracts — Breach—Question for jury — Affidavit of defense — Illegal contracts — Sunday laws — Conflict of laws — Place of performance — Presumption.

    1. In an action by an artist against an opera producer on a contract providing “the artist binds himself to sing in Italian, in New York and in the United States of America, the operas of his repertory and those which will be indicated to him,” in consideration of a certain sum to be paid by the producer “for each performance or Sunday concert, which sum shall be paid to the artist the day after the performance,” and providing in another portion that the artist should sing the songs of his repertory “and some other operas which may be indicated, so long as they are fit for him, and they are arranged on mutual agreement,” where the statement avers that the plaintiff was ready and willing at all times and offered to perform his engagements under the contract, an affidavit of defense is sufficient which denies these averments of the statement and avers that after fourteen performances the “defendant desired and requested plaintiff to sing the tenor part in the opera ‘The Prophet,’ which was a part the plaintiff was well fitted to sing, but said plaintiff, without reason or excuse, declined and refused to sing the part.”
    2. Such a contract, since it does not provide that the plaintiff will sing only in New York, is not void as stipulating for performances on Sunday against the statutes of that state, the presumption being that the parties intended the performance of the agreement in a place or territory where its performance was permissible.
    Argued Jan. 17, 1911.
    Appeal, No. 247, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., June Term, 1910, No. 176, discharging rule for judgment for want of a sufficient affidavit of defense in case of Giovanni Zenatello v. Oscar Hammerstein.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit. Before Magill, J.
    The averments of the statement and affidavit of defense are sufficiently set forth in the opinion of the Supreme Court.

      March 20, 1911:

      Error assigned was order discharging rule for judgment.

      H. Gordon McCouch, of Dickson, Beitler & McCouch, with him Henry S. Drinker, Jr., for appellant.
    The place of the execution of the contract is immaterial. The legality of the performance stipulated for is determined by the law of the place of performance: Waverly Nat. Bank v. Hall, 150 Pa. 466; Burnett v. Railroad Co., 176 Pa. 45; Musser v. Stauffer, 192 Pa. 398; Krantz v. Kazenstein, 22 Pa. Superior Ct. 275; Harris v. White, 81 N. Y. 532.
    It is not to be presumed that the parties intended to violate the law: Harton’s Est., 213 Pa. 499.

      Thomas Learning, for appellee.
    The law of New York is a fact to be proved and under it the executory part of the contract is void: American Alkali Co. v. Huhn, 209 Pa. 238; Musser v. Stauffer, 192 Pa. 398; Hallen v. Thompson, 48 Misc. 642 (96 N. Y. Supp. 485); Stewart v. Thayer, 168 Mass. 519 (47 N. E. Repr. 420); Knight v. Press Co., 227 Pa. 185.
    The facts are in dispute whether the plaintiff was ready to perform his undertakings, and whether the defendant gave him opportunity to do so.
   Opinion by

Mr. Justice Mestrezat,

We do not agree with the learned court below that the affidavit sets up a prima facie defense in averring that by virtue of certain acts of assembly of the state of New York and their construction by the courts of that state the contract of the parties “was unlawful and void in that it was an agreement to perform in the state of New York any opera, or any parts of opera, or other dramatic performance, upon the first day of the week, commonly called Sunday, in violation of said statutes.” A copy of the contract on which the suit was brought is attached to and made part of the statement. It was executed in New York and provides, inter alia, as follows: “The artist (Giovanni Zenatello) binds himself to sing in his capacity of tenor, and shall sing in Italian, in New York and in the United States of America, the operas of his repertory and those which will be indicated to him .... Mr. Oscar Hammerstein (the defendant) binds himself to pay the artist the sum of 1300 American Dollars for each performance or Sunday concert, which sum shall be paid to the artist the day after the performance.” For present purposes we may assume, as defendant alleges, that the statutes of New York make it unlawful to perform in the state of New York any opera or other dramatic performance on Sunday, and that an agreement is void which stipulates for such performances on Sunday in New York. The contract between the plaintiff and the defendant and on which this action was brought, however, does not provide that the plaintiff shall sing only in New York, as assumed by the learned court below, but “in New York and in the United States of America.” Zenatello was to sing each day of the week. The agreement, therefore, does not provide that he shall sing in New York on Sunday, and the presumption is that Hammerstein will not require him to sing in that state on Sunday but in some other part of the United States where Sunday concerts are not prohibited. The law will not presume that the parties contracted to do an unlawful thing or violate a statutory prohibition in carrying out its terms, but that their purpose was the accomplishment of a lawful object and the performance of the agreement in a place or territory where its performance was permissible. We must, therefore, construe this agreement to mean' that the parties intended that the plaintiff should sing his operas in those parts of the United States where such performances would be legal and not in the state of New York where they are prohibited. It is settled law that the validity of a contract as to matters affecting its performance is to be determined by the laws of the place of performance and not the place of execution. The laws of the state of New York, therefore, have no application in construing the contract in question and, hence, the averment in the affidavit that the contract is void under the New York statutes is not a defense to this action.

The statement avers that the plaintiff was ready and willing at all times and offered to perform his engagements under the contract. This is denied by the affidavit of defense, and it is averred that after the fourteen performances, the “defendant desired and requested plaintiff to sing the tenor part in the opera 'The Prophet/ which was a part the plaintiff was well fitted to sing, but said plaintiff, without reason or excuse, declined and refused to sing the part.” The contract bound the plaintiff to sing “the operas of his repertory and those which will be indicated to him.” Another part of the contract specifies the operas of the plaintiff’s repertory and provides that he shall sing those operas, “and some other operas which may be indicated, so long as they are fit for him, and they are arranged on mutual agreement.” The plaintiff contends that he was justified in refusing to sing the tenor part in “The Prophet” as it was not one of those specified as part of his repertory and was not agreed upon by mutual consent between the parties. This question was clearly for the jury under proper instructions by the court. We must assume the truth of the averment in the affidavit that the defendant requested the plaintiff to sing in “The Prophet,” that he was fitted to sing in it, and that he, “without reason or excuse, declined and refused to sing the part.” If this be true, the plaintiff violated his contract. He was, by the terms of the agreement, to sing such operas outside of those specified in his repertory as the defendant “indicated to him,” and were “fit for him” when they were “arranged on mutual agreement.” It was, therefore, the duty of the plaintiff to sing the tenor part in “The Prophet” when requested by defendant unless he had a sufficient legal reason for refusing to do so, and whether he did so “without reason or excuse,” as averred in the affidavit, is necessarily for the jury. Being fitted to sing in the opera and being requested to do so by the defendant, the plaintiff could not arbitrarily decline to enter into a “mutual agreement” to sing “The Prophet.” These averments necessarily raise questions of fact for the consideration and determination of the jury.

We need not determine the questions of law suggested in argument other than those necessary to the disposition of this rule, as they can be better considered and decided in the light of all the facts developed on the trial of the cause before a jury.

The order discharging the rule for judgment for want of a sufficient affidavit of defense is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Lewis's Estate.

      Wills — Decedents’ estates — Trusts and trustees — Termination of trust— Remainders.

    1. Where a testator creates a trust for the benefit of his widow in such a way that the ultimate distributees of the fund cannot be determined until after her death, the widow and only surviving child are not entitled to a decree terminating the trust at a time when some of the parties who may ultimately participate in the fund may not yet be in existence.
    2. Testator died leaving to survive him a widow and four children. By his will he created a trust of the residue of his estate for his widow for life, and upon her death directed the trustee to divide the corpus into four equal parts, and to pay one part thereof to each of his four children, “if living, or to the issue of such of my children as may then be deceased.” After the testator’s death three of the children died intestate without issue. Subsequently the widow and the other child, a son having two children living, presented a petition to the orphans’ court for a decree terminating the trust. Held, that the orphans’ court committed no error in dismissing the petition.
    Argued Jan. 17, 1911.
    Appeal, No. 157, Jan. T., 1910, by Adelia R. Lewis and John T. Lewis, from decree of O. C. Phila. Co., Oct. T., 1898, No. 494, dismissing petition for the termination of a trust in Estate of William H. Lewis, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      Petition praying that a trust be declared terminated. Before Lamokelle, J.
    The decedent, William H. Lewis, died September 26, 1896, having previously made and executed his last will dated August 6, 1889. By the terms of this will John J. Foulkrod was named as executor therein and upon his decease, The Manayunk Trust Company was appointed as substituted trustee. On July 3, 1909, a petition was filed on behalf of Adelia R. Lewis, the widow, and John T. Lewis, only surviving child of the testator, praying that a citation be issued against The Manayunk Trust Company, substituted executor and trustee, to show cause why the trust therein set forth should not be terminated and the money or moneys in its hands, after deducting its proper charges and expenses, should not be turned over to the petitioners. The clause of the will creating the trust, and made the basis of the foregoing petition, is as follows:
    “Item: I give, devise and bequeath unto my Executor hereinafter named all the rest, residue and remainder of my Estate of whatsoever kind and wheresoever situate in trust, however, to pay the net income and interest arising therefrom unto my said wife, Adelia R. Lewis, for and during the full end and term of her natural life, hereby authorizing my said Executor to sell any portion of my Estate at any time he may desire and deem it prudent and of advantage to do so, either at public or private sale, giving unto the purchaser or purchasers thereof a good and sufficient deed or other assurance therefor without any liability on the part of such purchaser or purchasers to see to the application of the purchase money thereof and the moneys arising from said sale to reinvest in such good securities as he may elect and again the same to sell as above stated whenever he may deem it proper and of advantage to do so, and the proceeds again to reinvest for the benefit of my Estate and in trust further from and immediately after the decease of my said wife, I desire and authorize my Executor to divide the corpus of my Estate into four equal parts or shares and to pay one full equal fourth part or share thereof unto each of my children, viz.: John T. Emma A. William J. and Minnie L. absolutely, if living, or to the issue of such of my children as may then be deceased by right of representation, providing such issue shall be of the full age of twenty-one years, otherwise the share of such issue of any deceased child of mine; I desire held in trust by my Executor as Guardian of such minor issue of deceased child of mine until they severally arrive and become of the full age of twenty-one years, and on failure of issue of any deceased child or children of mine such deceased child or children’s share in my Estate, I desire shall be divided equally among those of my children or Grandchildren sharing in my Estate, share and share alike, such Grandchildren, however, taking only their parent’s share.”
    March 20, 1911:
    Emma A. Cornog, William J. Lewis and Minnie L. Jones, the other children of the testator, had died intestate and without issue at the time of the presentment of the petition. John T. Lewis had living at the time of filing the petition two children.

      Error assigned was decree dismissing petition.

      William Morgan Montgomery, for appellants:
    No paper-books or appearance for appellee.
   Per Curiam,

The widow of the testator, for whose benefit he created the trust which she and their only surviving child wish to have terminated, is still alive. Who will be the ultimate distributees of the fund under the-will of her husband cannot be determined until her death, and the court below could not have made a decree terminating the trust without the consent of all parties in interest. Such parties were not before it, for some who may ultimately participate in the fund may not yet be in existence.

Decree affirmed at appellants’ costs.


author: Mr. Justice Potter,

text:
    Tilton, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passengers—Sudden stop — Presumption of .negligence — Nonsuit.
    1. In an action by a passenger against a street railway company to recover damages for personal injuries a nonsuit is improperly entered where plaintiff testifies that while he was seated in the car it came to a sudden and violent stop throwing him forward against the seat in front of him.
    2. Such an unusual manner of stopping a car justifies an inference of negligence in the management of the car, and calls for an explanation by the defendant company. It is therefore not a case for a nonsuit.
    Argued Jan. 17, 1911.
    Appeal, No. 289, Jan. T., 1910, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 2,038, refusing to take off judgment of nonsuit in case of Adrian S. Tilton v. Philadelphia Rapid Transit Company.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Barratt^ J.
    Plaintiff testified that about 8:15 a. m. on December 9, 1907, he boarded a Haddington car in the city of Philadelphia having an aisle in the center and sat in the second cross seat from the rear; that the car was going out Girard avenue between Fiftieth and Fifty-first streets and “While I was sitting there I wasn’t looking ahead, and the car stopped sudden. There was a noise and I was thrown forward. ... I was thrown forward against the seat in front of me and hit my arm .... I got up and got out of the car to see what hit. I seen a wagon there turned over .... turned over on the track. . . . The fender was just bent up a little, and I got back in the car again.”
    The court entered a compulsory nonsuit.

      Error assigned was refusal to take off nonsuit.

      Meredith Hanna, for appellant.
    Where a passenger is injured, either by anything done or omitted by the carrier or its employees, or anything connected with the appliances of transportation, the burden of proof is upon the carrier to show that such injury was in no way the result of its negligence: Thomas v. Philadelphia & Reading Ry. Co., 148 Pa. 180; Seither v. Traction Co., 125 Pa. 397; Shay v. Ry. Co., 66 N. J. Law, 334 (49 Atl. Repr. 547); Goorin v. Traction Co., 179 Pa. 327.
    In the following cases the plaintiff, a passenger, was in each case injured by the shock of a sudden stoppage or plunge of the car in which he rode. The cause of the accident was not shown and the mere happening of the accident was held to raise the presumption of negligence of the defendant: Dixey v. Traction Co., 180 Pa. 401; Clow v. Traction Co., 158 Pa. 410.
    In the following cases plaintiff was injured while a passenger in a railway train by collision of the train with a cow on the track; yet he was held entitled to recover: Clark v. R. R. Co., 24 Pa. Superior Ct. 609; Sullivan v. R. R. Co., 30 Pa. 234.

      Thomas Learning, with him Bernard J. 'O’Connell, for appellee.
    No presumption of negligence arises from the mere fact of an injury to a passenger caused by contact between the car and a wagon not under the control of the carrier, and the burden of proof remains in its normal position — upon the plaintiff: Ginn v. R. R. Co., 220 Pa. 552; Cline v. Rys. Co., 226 Pa. 586; Federal Street & Pleasant Valley Ry. Co. v. Gibson, 96 Pa. 83; People’s Pass. Ry. Co. v. Weiller, 17 W. N. C. 306; Goorin v. Allegheny Traction Co., 179 Pa. 327; Willis v. Second Ave. Traction Co., 189 Pa. 430; Downey v. Pittsburg Rys. Co., 219 Pa. 592; Gaines v. Chester Traction Co., 224 Pa. 52; Blew v. Phila. Rapid Transit Co., 227 Pa. 319; Chicago City Ry. Co. v. Reed, 163 Ill. 477 (45 N. E. Repr. 238); Chicago Union Traction Co. v. Mee, 218 Ill. 9 (75 N. E. Repr. 800).

      March 20, 1911:
   Opinion by

Mr. Justice Potter,

The plaintiff in this case has appealed from the refusal of the court below to take off a judgment of compulsory nonsuit. The defendant company was charged with negligence in the operation of one of its cars; and the specific act of which complaint was made was a sudden and violent stop, resulting in injury to the plaintiff. Under ordinary circumstances, with the car under proper control, when it is brought to a stop by the motorman, it is not done so abruptly as to injure a passenger, by throwing him forward against the seat in front of him. Yet that was what occurred in this case, if the testimony of the plaintiff is to be credited. Such an unusual manner of stopping the car called for explanation by the defendant. If the sudden and violent stop was made necessary by something which occurred outside the car, and which was beyond the control of the motorman, and in his judgment made it needful to stop abruptly, rather than incur the risk of otherwise causing more serious injury, that fact should have been made to appear. But, in the absence of any explanation, the occurrence as described in the testimony of the plaintiff, was sufficient to justify an inference of negligence in the management of the car. It matters not whether there was an actual collision with a wagon; the point of the inquiry would be as to the conduct of the motorman, and whether or not he was justified in stopping his car in what under ordinary circumstances would have been a negligent manner, and with needless violence. The testimony of the plaintiff showed that the motorman did not manage his car in the manner usually and ordinarily proper in making stops, and that this action resulted in injury to the plaintiff. This evidence placed the duty of explanation and justification upon the defendant; and the judgment of compulsory nonsuit should not have been entered.

The judgment is reversed with a procedendo.


text:
    Perovich v. Domansky, Appellant.

      Negligence — Damages—Compensatory or punitive damages — Wanton assault.

    In an action for personal injuries inflicted upon a boy nine years of age it is not error for the court to refuse to instruct the jury that plaintiff’s recovery should be restricted to compensatory damages where it appears from defendant’s evidence that his son and the plaintiff, who were near the same age, had quarreled on the street, and that fifteen minutes after being informed of the occurrence, while seated in front of his house reading a newspaper, he perceived the plaintiff across the street, and went over where he was; and a witness to the occurrence called by plaintiff testified that the defendant seized the boy by the neck and threw him violently against an iron slot machine, and at the same time kicked him.
    Argued Jan. 18, 1911.
    Appeal, No. 187, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 618, on verdict for plaintiffs in case of Frank Perovich, by his father and next friend, Ambrose Perovich, and Ambrose Perovich v. Vincent Domansky. Before Fell, C. J.,
    Brown, Mestrezat,' Potter and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries to a minor child. Before Willson, P. J.
    The facts appear in the opinion of the Supreme Court.
    At the trial the defendant offered the following point, which was refused;
    “If the jury find for the plaintiffs in this case, they are restricted, under the pleading, to a verdict for compensatory damages, and punitive damages cannot be given to the plaintiffs.”
    Verdict of $3,000 for the minor plaintiff and $1,000 for his father, and judgment thereon.

      Error assigned among others was in refusing defendant’s point as above.

      March 20, 1911:

      John G. Johnson, and Henry B. Patton, with them William W. Staake, for appellant.
    It is error to instruct the jury that they may find punitive damages where the evidence justifies only compensatory damages: Rose v. Story, 1 Pa. 190; Lynch v. Troxell, 207 Pa. 162; Robison v. Rupert, 23 Pa. 523.

      John Weaver, with him Israeli & Blieden, for appellees.
   Per Curiam,

The ground of this action was that the defendant had wrongfully and maliciously injured one of the plaintiffs, a boy ten years of age, causing permanent deafness. The only assignment of error pressed at the argument relates to the refusal of the court to instruct the jury that any recovery by the plaintiffs should be restricted to compensatory damages. A witness to the occurrence, called by the plaintiffs, testified that the defendant seized the boy by the neck and threw him violently against an iron box or slot machine, and at the same time kicked him. It appeared from the testimony of the defendant, that his son and the plaintiff, who were near the same age, had quarreled on the street and his son had returned home and told him of the occurrence. More than fifteen minutes afterwards, while the defendant was seated in a chair on the pavement, in front of his house, reading a newspaper, the plaintiff, who was on the opposite side of the street, was pointed out to him as the boy who had quarreled with his son, and he crossed the street to where the boy stood. Whatever he then did was not in defense of his son nor in sudden heat or excitement because his son had been beaten by the plaintiff. Whether under the circumstances it was wanton and vindictive, was a question for the jury and it was properly submitted.

The judgment is affirmed.


text:
    Dougherty, Appellant, v. Briggs.
    • Contracts — Offer and acceptance — Parol contract — Written correspondence — Acts and conduct of parties.

    1. Where the written correspondeneé between the parties to a contract discloses .on its face that, it does not constitute the whole agreement, and the terms thereof must be ascertained from the letters and acts of the parties, the contract is for the jury, including the question whether an offer contained in one of the letters of the defendant was accepted by the conduct or acts of the plaintiff.
    2. When it is sought to establish a contract by letters which pass between the parties, containing proposals, answers and counterproposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party.
    Argued Jan. 18, 1911.
    Appeal, No. 334, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 893, for defendants non obstante veredicto in case of Frank P. Dougherty v. Malcolm Briggs, Jr., and The Tradesmen’s Trust Company. Before Fell, C. J.,
    Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Assumpsit for money had and received. Before Kinsey, J.
    At the trial it appeared that Dougherty was awarded in the spring of 1906 a contract for all the plumbing work in an operation of fifty houses about to be erected by one Bihlmaier. The contract was signed June 6, 1906, and provided for the payment of $8,950, $6,350 as the work progressed, the balance in three notes, two of $1,000 each and one of $600. Dougherty gave to Bihlmaier a bond for the faithful performance of his contract, and Bihlmaier assigned, this bond to the Tradesmen’s Trust Company. Bihlmaier agreed “to have set aside in escrow with the Tradesmen’s Trust Company” five designated houses in the operation, “to be held by the said Tradesmen’s Trust Company as security for the payment of the above mentioned three promissory notes of the said Bihlmaier, and the said Frank P. Dougherty agrees to release said five houses and lots as said notes are paid.” Five counterparts of the agreement between Dougherty and Bihlmaier were executed, one of which was deposited with the trust company, and the attention of the company was called to the provision as to the five houses. Briggs, the title officer of the company, saw the agreement, and Taylor, the employee of the company in charge of building operations, read it before the settlement in August, 1906. At that time the land was conveyed by its old owner to a “straw man,” who conveyed the land, divided into fifty lots, subject to first mortgages, to Bihlmaier. These mortgages were for money to be advanced for the building operation, and were assigned to various investors, who deposited their money with the trust company, to be disbursed by it as the work progressed; and the company issued to the mortgagees title policies and policies of indemnity against noncompletion, mechanics’ and municipal liens. Bihlmaier conveyed all the lots to Briggs, the title officer of the trust company, and one of the defendants in the present action, who took and held the title for the company, to secure the company in the payment of all moneys advanced by it to complete the houses. These conveyances included the five lots designated as security for the deferred payments to Dougherty. It is not denied that Briggs took title subject to Dougherty’s rights in the five lots and the houses to be erected thereon, or that the company’s rights in the five houses and lots were thus inferior to Dougherty’s, unless made superior by the subsequent transactions. The company also took from Bihlmaier a bond with one Sutton as surety for completion of the houses free of liens, and from each subcontractor a bond similar to the one given by Dougherty to Bihlmaier and by him assigned to the company.
    On August 4, 1906, one of the counterparts of plaintiff’s contract with Bihlmaier was filed of record by the trust company. Plaintiff started work at the end of August, 1906. He received $3,300 from Bihlmaier as the work progressed, and $2,900 from the trust company, as set forth below, but never received any part of the $2,600, deferred payments. Bihlmaier gave him one note for $1,000 and a renewal thereof, which was never paid, and refused to give the other two notes. In the fall of 1907, Bihlmaier fell behind in his payments, and the work began to drag, but plaintiff never stopped work, being under bond for its completion. In November, 1907, the company took charge of the operation. Having done a large part of the work, and having received only $3,300, the plaintiff asked the trust company for some assurance as to payment of the balance of the cash which was then due, namely, $1,150, and of the balance which would become due as the work progressed, namely, $1,900, or $3,050 in all. The deferred payments of $2,600 were secured by the “equity” in the five houses. Finding that, out of cash in hand, it could pay plaintiff $2,900, the company offered to pay plaintiff that sum, as the work progressed, if he would complete his work. On this subject there were numerous conversations between plaintiff and his counsel, Mr. Wood, and Mr. Brooks, the treasurer of the company, and some correspondence. Plaintiff completed the work in January, 1908, and received $2,900 from the company in installments as the work progressed. In June, 1908, thirty-five houses of the operation were sold, including the five houses held as security for the deferred payments to plaintiff, realizing from $15,000 to $23,000 above the first mortgages, and Briggs conveyed to the purchaser, received the proceeds, and turned them over to the company. This action was brought to recover $2,600 of this fund.
    Under date of November 26, 1907, Charles S. Wood, as attorney for Dougherty, the plaintiff, wrote to the Tradesmen’s Trust Company the following letter: “Upon behalf, of Mr. Frank P. Dougherty, who contracted with Frederick A. Bihlmaier to do the plumbing work in thirty-three houses on the east side of Conestoga Street between Arch and Race Streets, and seventeen houses on the west side of Conestoga Street, north of Arch Street, and upon which said contract the said Bihlmaier has defaulted, leaving the work in thirty-three of said houses incomplete and unfinished, I desire to make the following proposition to your company, respecting the completion of the said contract: Mr. Dougherty will furnish all of the materials, and perform all of the labor necessary, to complete his contract in strict and exact accordance with the specifications for said work, attached to and made a part of his said contract with the said Bihlmaier, for the sum of $2,900 upon the acceptance by your company of said proposition, and the writing of a letter, agreeing, upon behalf of said company, that it will guarantee the payment of the said sum of $2,900, as the same may become due and payable in accordance with said contract, and that your company will after it has saved itself from loss or damage by reason of said Bihlmaier’s default, subrogate Mr. Dougherty as his interest may appear to your rights to proceed against the bondsman of the said Bihlmaier for damages arising out of the said default. Kindly let me hear from you at your earliest convenience and oblige.” Under the same date Lewis K. Brooks, treasurer of the Tradesmen’s Trust Company, replied to Mr. Wood as follows: “I am in receipt of your communication of the 26th inst., relative to the completion of the plumbing work by your client, Frank P. Dougherty, on the Bihlmaier operation, situate Arch and Conestoga Streets, and in reply beg to state that the Tradesmen’s Trust Company will pay Mr. Dougherty the sum of $2,900 cash for the completion of this work according to the specifications of the original contract of Mr. Dougherty with Mr. Bihlmaier, it being understood that Mr. Dougherty will prosecute this work to completion with all possible haste. In reference to the last clause of your letter, in which you ask that Mr. Dougherty be subrogated to the rights of the Tradesmen’s Trust Company to proceed against Mr. Sutton, the bondsman on this operation, I wish to state that the Tradesmen’s Trust Company will not consent to such arrangement. All that they will agree to do is to pay Mr. Dougherty $2,900 for the finishing of his contract, and retain any moneys that may arise from the sale of the properties and applicable.to Mr. Bihlmaier’s account, over and above the indebtedness due the Tradesmen’s Trust Company, to be prorated among the various subcontractors in proportion to the amount of claims still due them. If this arrangement is satisfactory, kindly push Mr. Dougherty to complete his work immediately.”
    The next letter passing between the parties is under date of December 11, 1907, in which Mr. Wood wrote to Mr. Brooks as follows: “I am under the impression that no acknowledgment was sent you of the receipt of your letter of November 26th, relative to Frank P. Dougherty, and the Bihlmaier operation, in which communication you agreed to allow Mr. Dougherty $2,900 to finish his work, but refuse to subrogate Mr! Dougherty to your rights against the contractor’s surety. At this time, I simply beg to advise you that I have instructed Mr. Dougherty to complete his work, in accordance with the terms of the agreement entered into between us, but, notwithstanding the terms of your letter of November 26th, I desire to state that Mr. Dougherty will use all legal means in his power to secure for himself his full rights against Mr. Bihlmaier, the Tradesmen’s Trust Company and Mr. Sutton, the surety. I further desire to state, that, upon behalf of Mr. Dougherty, we will endeavor to hold the Tradesmen’s Trust Company to a strict accountability in the matter of the disposition of the houses, and I would suggest that they shall not be sold for any sum which will not net an amount sufficient to pay, inter alia, my client. I am also advised, that, notwithstanding the agreement made with myself, as attorney for Mr. Dougherty, the Tradesmen’s Trust Company has made an agreement not only to pay Mr. Laning in full for the completion of his work, but, in addition thereto, have guaranteed that he shall receive the equities to which he is entitled, under his original contract with Bihlmaier. I can hardly believe that the Tradesmen’s Trust Company would enter into a contract of this kind, but nevertheless, I would be glad to learn from you personally, whether such is the case. Thanking you for an early reply, I beg to remain,” etc.
    Mr. Brooks replied to this letter under date of December 20,1907, as follows: “I am in receipt of your communication of the 11th inst., relative to Mr. Dougherty’s contract in the Bihlmaier operation, and in reference to the last clause of your letter I wish to say that the statement made by you is entirely untrue. Mr. Laning, in the finishing of his contract, has no further arrangements made with him than were made with your client for the finishing of his contract.”
    Verdict for plaintiff for $2,000. Subsequently the court entered judgment for defendants non obstante veredicto.

      Error assigned was in entering judgment for defendants n. o. v.

      Stanley Folz, with him Leon H. Folz, for appellant.—
    Under the Act of April 22, 1905, P. L. 286, the court may not enter judgment non obstante veredicto unless binding instructions at the trial would have been proper. The court may not after verdict decide questions which should have been submitted to the jury: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. R. R. Co., 218 Pa. 34.
    In construing writings all the surrounding circumstances are to be borne in mind, the situation of the parties, etc.: Wilson v. Wernwag, 217 Pa. 82; Perry v. Payne, 217 Pa. 252.
    Acceptance must be unconditional and identical with the terms of the offer: Slaymaker v. Irwin, 4 Whart. 369; Allen v. Kirwan, 159 Pa. 612; Clements v. Bolster, 6 Pa. Superior Ct. 411; Swing v. Walker, 27 Pa. Superior Ct. 366; Smith v. Perry, 32 Pa. Superior Ct. 421.

      March 20, 1911:
    Where there are writings between the parties in the course of which no acceptance of an offer is contained, whether or not the offeree’s conduct amounts to an'acceptance is a question for the jury and not for the court: McClure v. Times Publishing Co., 169 Pa. 213; Snyder v. Leibengood, 4 Pa. 305.

      Henry J. Scott, for appellees.
    There was no issue of fact for a jury to pass upon-: Webb v. Mears, 45 Pa. 222; Folsom v. Cook, 115 Pa. 539; Middleton v. Stone, 111 Pa. 589; Bryant v. Hagerty, 87 Pa. 256; Ulrich v. Getz, 9 Pa. Superior Ct. 289.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit for money had and received by the defendants for the use of the plaintiff, and the right to recover depends on whether the plaintiff released his “equity” in the five houses created by the agreement entered into between him and Bihlmaier in June, 1906. The question was submitted to the jury and there was a finding in favor of the plaintiff and a verdict for the amount of his claim less certain carrying charges. The court, however, entered judgment for defendants non obstante veredicto under the act of 1905 on the ground that certain language in the letter of November 26, 1907, of Mr. Brooks, the treasurer of the trust company, to plaintiff’s counsel “was a distinct offer that was accepted by Dougherty doing the work and taking the money. This acceptance is fatal to his present claim.” The plaintiff has appealed, and assigns for error the action of the court in entering judgment for the defendants.

We cannot agree with the learned court’s conclusion in holding that the letters constituted the contract between the plaintiff and the defendants. We think the agreement was partly in writing and partly in parol, and that all the evidence should have been submitted to the jury to determine the contract between the parties. This having been done and the jury having found in favor of the plaintiff, judgment should have been entered on the verdict.

The burden was on the defendants to show that the plaintiff had released or waived his claim on the five houses in which he was given an “equity” by the contract between him and Bihlmaier. They attempted to meet the burden by the letters which passed between the parties in the latter part of 1907. The first two letters, under date of November 26, 1907, cannot be construed to be a contract of any kind. Mr. Wood’s letter was a proposal that his client would complete the work for $2,900 upon the acceptance of the proposition and the writing of a letter agreeing to subrogate Dougherty to defendants’ rights to proceed against Bihlmaier’s bondsman for damages arising out of his default on the building contract. Mr. Brooks, in his reply of the same date, did not accept the proposition in its entirety and thereby create a contract between the parties. He agreed to pay Dougherty $2,900 for the completion of the work, but refused to subrógate him to the rights of the trust company to proceed against Bihlmaier’s bondsman. The letter then proceeds: “All that they will agree to do is to pay Mr. Dougherty $2,900 for the finishing of his contract, and retain any moneys that may arise from the sale of the properties and applicable to Mr. Bihlmaier’s account, over and above the indebtedness due the Tradesmen’s Trust Company, to be prorated among the various subcontractors in proportion to the amount of claims still due them.” It will be observed that Mr. Wood’s letter is a proposal to complete the work on certain specific terms. Mr. Brooks accepts some and rejects others of those terms, and submits additional terms. It is apparent, we think, that the proposals and counterproposals in these letters did not create a contract. When it is sought to establish a contract by letters which pass between the parties, containing proposals, answers and counterproposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party. In other words, the minds of the parties must come together on all the essential terms of the alleged contract. This is the established doctrine, and is recognized in our cases: Slaymaker v. Irwin, 4 Whart. 369; Allen v. Kirwan, 159 Pa. 612. In the former case Mr. Justice Sergeant, delivering the opinion, quotes with approval the rule announced by Mr. Chitty in his General Practice as follows (p. 380): “The whole terms of the contract when in writing need not be expressed on the same paper or documents, but may be collected from several letters containing proposals and alternate agreements between the parties: but then the last communication, must be a distinct and unqualified assent, to an equally clear proposal; and if the last letter suggest any new or further proposition, requiring the assent of the other party, or some communication from him to complete the transaction, then no contract or agreement is constituted.” 1 Chitty, Gen. Pr. 118.

It is equally clear that Mr. Wood, in his letter of December 11,1907, the third of the series, did not agree to accept the counterproposal contained in Mr. Brooks’s letter by which, it is claimed, that Dougherty released or waived his equity in the five houses. On the contrary, the letter .distinctly rejects the proposition and declares that Dougherty will assert his “equity” against Bihlmaier, the trust company and Sutton, the surety. It says: “Notwithstanding the terms of your letter of November 26th, I desire to state, that Mr. Dougherty will use all legal means in his power to secure for himself his full rights against Mr. Bihlmaier, the Tradesmen’s Trust Company and Mr. Sutton, the surety. I further desire to state, that, upon behalf of Mr. Dougherty, we will endeavor to hold the Tradesmen’s Trust Company to. a strict accountability in the matter of the disposition of the houses, and I would suggest that they shall not be sold for any sum which will not net an amount sufficient to pay, inter alia, my client.”

The proposition contained in the Brooks letter that Dougherty should complete the work is referred to by Mr. Wood in his letter of December 11 in the following language: “At this time, I simply beg to advise you I have instructed Mr. Dougherty to complete his work, in accordance with the terms of the agreement entered into between us.” What were the terms of the agreement entered into between Wood and Brooks? As pointed out, they are not contained in the written correspondence. It consists of proposals and counterproposals, and discloses on its face that it was not the entire contract between the parties. It is apparent that we must look beyond the correspondence, and invoke the assistance of oral testimony to enable us to ascertain “.the terms of the agreement entered into between” Wood and Brooks in accordance with which Dougherty completed the plumbing of the Bihlmaier buildings. It must be assumed that the trust company accepted the terms of that agreement, as it paid $2,900 for the completion of the work, and it failed to reject those terms in its letter of December 20, 1907, the fourth of the series, replying to Mr. Wood’s letter of December 11. The letters disclose on their face that they did not constitute the whole agreement, and the learned court properly admitted oral testimony to show the parts of the agreement referred to but not given in the correspondence. In this there was no error, as is held in many cases: Holt v. Pie, 120 Pa. 425; Schwab v. Ginkinger, 181 Pa. 8; Selig v. Rehfuss, 195 Pa. 200; Anderson v. Surety Co., 196 Pa. 288. In the Schwab case, Green, J., delivering the opinion, says (p. 14): “It is evident, therefore, that the whole of the actual contract between the parties, being partly in parol and partly in writing, must all be considered, in order to determine what the contract really was. The principle that a contract which is partly in writing and partly in parol becomes all parol is too familiar to require the citation of authorities. But in this case the application of the written paper to the subject of contention requires the help of the parol testimony. . . . With this testimony before the jury the question would be, What was the contract between the parties? ”

The defendants offered no parol testimony and relied on the letters which they put in evidence. Bihlmaier had defaulted on his contract, and there were $1,150 then due, and $1,900 which would fall due as the work progressed, or $3,050 in all, in addition to the $2,600 “deferred payments,” secured by the “equity” in the five houses. Dougherty had given a bond for the faithful performance of his contact, and of course had to finish the plumbing work. It was under these circumstances that the trust company took charge of the operation, and Dougherty was brought in contact with the company. Mr. Wood’s testimony shows that he, as attorney for Dougherty, had several interviews with Brooks, representing the trust company, in regard to the plaintiff’s claim and the completion of the work. It is shown that Wood and Brooks went over the work that remained to be done on the operation and concluded that $2,900 would about cover it. Brooks then told Wood, according to the testimony, that if Dougherty would go on and complete the work according to the specifications, the company would pay Dougherty the $2,900 when the work was finished. Wood said to Brooks that this was satisfactory and he would write him a letter to that effect, which was the letter of November 26, 1907. Wood had some interviews with Brooks between the date of this letter and that of December 11, 1907. In these interviews he told Brooks he wanted his claim in the houses assured and that he “intended to look for those ‘equities’ both to Mr. Sutton, the original guarantor, to the Tradesmen’s Trust Company, and to Mr. Bihlmaier,” and asked Brooks for a letter assuring his claim. Brooks was noncommittal on the subject. Failing to obtain this assurance, Wood wrote the letter of December 11. He testifies that Brooks never requested him to surrender Dougherty’s “equities” in the five houses and “it was never intended that we should.” He further testified that the $2,900 payment did not include the amount due by Bihlmaier to Dougherty, called the “equity,” and was not considered in the arrangement with Brooks. Plaintiff testified that he understood that he was to receive the $2,900 and also the “equity” in the five houses.

It will be observed that the letters themselves do not show any express release or renunciation of the “equity” held by Dougherty in the five houses secured by his contract with Bihlmaier. Mr. Wood’s first letter, by its request for subrogation, clearly shows that Dougherty claimed something beyond the $2,900. Conceding that the effect of the last paragraph in Mr. Brooks’s letter of November 26 would be to waive Dougherty’s “equity” in the houses, as held by the learned court below, there was no acceptance of that proposition by the plaintiff, either in writing or by parol. The letter of December 11 expressly negatives any thought on the part of Dougherty of renouncing his right to this “equity” in the houses. The parol testimony was ample to justify the jury in finding, as they did, that Dougherty did not waive or intend to waive his claim or lien on the five houses, and that the contract, as disclosed by the letters and the parol testimony, was simply that Dougherty should complete the plumbing work for $2,900 to be paid to him by the trust company as the work progressed. When the circumstances of the case, existing at the time of Bihlmaier’s failure, are considered, it is unreasonable to suppose that Dougherty agreed to waive his claim on the five houses. He had at that time done work on which there were due and unpaid $1,150, and work of the value of $1,900 was yet to be done to complete the contract, or $3,050 in all, beside the $2,600. If the contention of the defendants be correct, he agreed in consideration of the payment of $2,900 to do the balance of the work and also release his claim for $2,600. Such a proposition would certainly not present itself very favorably to the judgment of a practical business man. The trust company was obligated to complete the buildings, and Dougherty was required by his bond to complete the plumbing in accordance with his contract. Each party, therefore, was required to complete his contract. There is no apparent reason why Dougherty should be compelled to waive or lose' his claim of $2,600. He was not a defaulter in any respect, and was entitled, at the time he made his contract with the Tradesmen’s Trust Company, to receive the balance due him on the work as it progressed, and, in addition thereto, the $2,600 which was secured by his “equity” in the five houses. The trust company was not in a position to demand that he release either the houses or Bihlmaier from any part of his claim.

If it be contended that Mr. Brooks’s offer in his letter of November 26, 1907, was accepted by the conduct or acts of the plaintiff, it would still be a question for the jury whether such conduct or acts amounted to an acceptance. The contract would have to be ascertained from the letters and the acts of the parties, and in such case the question is for the jury and not for the court: McClure v. Times Publishing Co., 169 Pa. 213.

We think it was error for the learned court below to enter judgment for the defendants notwithstanding the verdict, and, therefore, the judgment is reversed, and the court below is directed to enter judgment on the verdict for the plaintiff and against the defendants.


text:
    Genese v. H. K. Mulford Company, Appellant.

      Equity — Account—Patents—Royalty—Undisturbed enjoyment of license.

    1. In a proceeding in equity for an accounting for royalties claimed under an agreement for the manufacture by the defendant of an article under a patent owned by the plaintiff, where the auditor has found, upon sufficient testimony, that the defendant was making the articles under the plaintiff’s patents without interference or attempted interference by anyone and that no other person was using or claiming the right to use any of the inventions covered by the agreement, the licensee is bound to pay the stipulated royalty.
    2. A licensee receiving the benefits of a patent is bound to pay the stipulated royalty.

      Argued Jan. 18, 1911.
    March 20, 1911:
    Appeal, No. 338, Jan. T., 1910, by defendant, from decree of C. P., No. 3, Phila. Co., March T., 1907, No. 5,654, for an account in case of David Genese v. H. K. Mulford Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill for an accounting under a written contract for use of a patent. Hearing before Theodore F. Jenkins, referee, on bill, answer and proofs.
    The facts appear in the opinion of the Supreme Court.
    McMichael, P. J., dismissed defendant’s exceptions to the referee’s findings and decreed that the defendant pay to the plaintiff the sum of $2,500.80. Defendant appealed.

      Errors assigned were in dismissing defendant’s exceptions to the referee’s findings of fact and conclusions of law.

      William A. Carr, with him W. Horace Hepburn and Sidney L. Krauss, for appellant.

      Alfred R. Haig, with him William F. Harrity, and Henry C. Thompson, Jr., for appellee.
   Per Curiam,

The bill was for an accounting for royalties claimed under an agreement for the manufacture, by the defendant, of suppositories, with metallic coverings, under a patent owned by the plaintiff. In the answer it was averred that prior to the making of the agreement, the plaintiff had represented that he had not granted the right to use his patented process to anyone, and that he could give the defendant the exclusive right to use the same, that the contract was entered into because of this assurance; that these representations were untrue, because the plaintiff had previously sold to other persons a patent which differed only slightly from the patent, the use of which he licensed to the defendant and had agreed to give them the exclusive use of any improvements on the patents sold, which he might thereafter make.

The learned referee found as a fact that the defendant was making covered suppositories under the plaintiff’s patents, without interference or attempted interference by anyone and that no other person was using or claimed the right to use any of the inventions covered by the agreement. He held as matter of law that a licensee, receiving the benefits of a patent, is bound to pay the stipulated royalty. The finding of fact was warranted by the testimony and the conclusion of law was in accord with our decisions: Jarecki v. Hays, 161 Pa. 613; Edison General Elec. Co. v. Thackara Mfg. Co., 167 Pa. 530.

The decree is affirmed at the cost of the appellant.


text:
    Cape May Real Estate Company v. Henderson, Appellant.

      Vendor and vendee — Covenants—Default of grantee — Contract.
    1. The clause of forfeiture or termination of the estate, upon the failure of a purchaser or lessee to pay purchase money or rent at the time by the contract required, is presumed to be for the benefit of the grantor or lessor, and as against him no default of the grantee or lessee can release the latter from his covenant to pay, unless the intent of both parties to that effect be made to appear by clear, precise and unequivocal language.
    2. Covenants that the contract shall become void, or that the estate shall cease and terminate, on failure by the grantee or lessee to pay at the time specified, are not self-operating and do not make the contract void except at the option of the grantor or lessor.
    3. Where a written contract for the purchase of land at a specified price payable in installments provides that in case of default in payment of any one or more of the installments “all rights of the” purchaser “and all his right, title, interest and claim in said described premises shall become null and void . . . .” and all “moneys theretofore paid as well as the premises shall in such event belong to” the vendor “as liquidated damages for the time said property was under the control of” the purchaser, the vendor has the right to elect either to assert and enforce the forfeiture, or to insist upon the performance of the contract.

      Contracts — Deeds—Foreign law — Evidence.
    4. The laws of a foreign country or another state of the union must be proved as facts, and, in the absence of allegation or evidence to the contrary, must be presumed to be same as those of the forum.
    Argued Jan. 19, 1911.
    Appeal, No. 126, Jan. T., 1910, by defendant, from judgment of Superior Court, Oct. T., 1909, No. 128, reversing judgment of C. P., No. 5, Phila. Co., March T., 1909, No. 2,438, for defendant in case of Cape May Real Estate Co. v. James D. C. Henderson.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover installments of purchase money on a contract for the purchase of land.
    Demurrer to statement. See 42 Pa. Superior Ct. 1.
    The facts appear in the opinion of Porter, J., as follows:
    The plaintiff filed a statement averring that it had, on March 11, 1907, entered into a written contract with the defendant under the terms of which it agreed to sell and convey, and the defendant covenanted to buy and pay for, a certain lot of ground at Cape May, New Jersey. A copy of the written agreement was attached to and made part of the statement, and under its provisions the plaintiff agreed to sell and convey the lot described, and the defendant covenanted to purchase the same and pay therefor the sum of $1,600, of which sum $160 was to be paid in cash and the balance in installments of $120, each and every three months following the date of the agreement.
    The contract contained the following provision upon the construction of which, under the pleadings, this case must turn, viz.: “If default of payment is made of any one or more of said installments of said principal sum, for a period of thirty days after the expiration of the time herein limited for the payment thereof, or said party of the second part shall fail to perform any other of the agreements on his part herein contained, all rights of the said party of the second part under this agreement, and all his right, title, interest and claim in said described premises shall become null and void: it being expressly stipulated and understood that no process or decree of law or equity shall be necessary to this effect, and all moneys theretofore paid as well as the premises shall in such event, belong to said party of the first part as liquidated damages for the time said property was under the control of the said party of the second part.” The statement averred that the defendant, the party of the second part to said agreement, had paid the cash installment of $160 and the installment of $120 which became due on June 11, 1907; but that he had wholly failed and refused to pay the seven quarterly installments, of like amount, which subsequently became due according to the terms of the contract, and that this action was brought to recover $840, the amount of said installments in default, with interest thereon at five per centum per annum. The defendant demurred to this statement, assigning as ground of demurrer, “that the contract upon which the suit is brought limits the amount of damages which the plaintiff may recover upon the defendant’s breach, to the amount of the installments he may have paid prior to the breach, and the forfeiture of his interest in the premises;” and quoting the covenant above set forth. The court below sustained the demurrer and entered judgment for the defendant. The plaintiff appeals.
    Did the provision of the contract hereinbefore quoted vest in the defendant the right to set up his own default, to work a forfeiture of his own contract? The earlier cases in Pennsylvania might have sustained the position that it did so; those cases were referred to and the history of the departure from the doctrine which they asserted reviewed by Mr. Justice Clark, in Ray v. Natural Gas Co., 138 Pa. 576. The general rule is that a party cannot take advantage of his own wrong or set up his own default to work a forfeiture of his own contract, unless the contract expressly gives him the right to do so. While parties may contract that on default the contract shall become void at the option of either party, yet such intent in the agreement must be so plain as to be unavoidable in order to sustain such a construction. The clause of forfeiture or termination of the estate, upon the failure of a purchaser or lessee to pay purchase money or rent at the time by the contract required, is presumed to be for the benefit of the grantor or lessor, and as against him no default of the grantee or lessee can release the latter from his covenant to pay, unless the intent of both parties to that effect be made to appear by clear, precise and unequivocal language. Covenants that the contract shall become void, or that the estate shall cease and terminate, on failure by the grantee or lessee to pay at the time specified, are not self-operating and do not make the contract void except at the option of the grantor or lessor, "and that legal effect, no matter what form or cumulation of phrases be used, can only be changed by an express stipulation that the contract shall be voidable at the option of either party,” is well settled: Cochran v. Pew, 159 Pa. 184. These principles are firmly established by many decisions, a number of which were referred to in the opinion of President Judge Rice in Steele v. Maher, 38 Pa. Superior Ct. 183. The same rule applies to the construction of contracts for the sale of land, or an estate therein, as that applicable to leases. When the contract does not provide by clear, precise and unequivocal language, that the purchaser may terminate it by his own default, such effect will not be given it. The presumption is that the forfeiture clause is for the benefit of the grantor and enforcible at his election. Without such election and action the purchaser will not be released from his obligation to pay: Vito v. Birkel, 209 Pa. 206; Weaver v. Griffith, 210 Pa. 13.
    The contract with which we are now dealing did not in express terms provide that it should be terminable at the will of either party, so that the defendant might even terminate it by his own default, nor does it contain anything from which such a covenant could be clearly implied. The clause of forfeiture does not even provide that, upon default by the purchaser the contract should become void or be rescinded.
    There is no covenant that the defendant should by his default be released from his obligation to pay, nor that the rights of the grantor under the contract should cease. The provision is that, upon default by the defendant, “all rights of the said party of the second part under this agreement, and all his right, title, interest and claim in the said premises shall become null and void;” but there is nothing which clearly indicates that it was the intention of the parties that the defendant should be released from his liability upon the contract. This was manifestly a covenant inserted for the benefit of the grantor, to enable him to secure the performance of the contract. The effect was to give the plaintiff, upon default by the defendant, the right of election, either to assert and enforce the forfeiture or to insist upon performance of the contract. There can be no doubt that, in such a case the grantor may waive the forfeiture, either expressly or by estoppel arising from acts tending to mislead the grantee: Vita v. Birkel, 209 Pa. 206. The plaintiff having elected to bring this action in affirmance of the contract, the clause of forfeiture can have no effect in determining the rights of the parties. The plaintiff is, under the laws of Pennsylvania, entitled to recover.
    This contract, it would seem, was to be performed in the state of New Jersey, and counsel in their briefs have referred to decisions of the court of that state. The case as presented, however, does not permit us to inquire what the law of that state may be. The case must stand upon the pleadings, the statement of the plaintiff, and the demurrer of the defendant. The statement contains no allegation as to the law of New Jersey and the demurrer is, of course, barren of any suggestion upon that subject. The laws of a foreign country or another state of the union must be proved as facts, and, in the absence of allegation or evidence to the contrary, must be presumed to be the same as that of the forum: Musser v. Stauffer, 178 Pa. 99, and 192 Pa. 398.
    March 20, 1911:
    The judgment is reversed and judgment is now entered in favor of the plaintiff and against the defendant, for $840, with interest thereon at the rate of five per centum per annum, from March 11, 1908, with costs.

      Error assigned was the judgment of the Superior Court.

      C. H. Eimerman, for appellant.
    It is well settled in law and equity that where parties have agreed upon the measure of damages for a breach of contract, they have no other remedy, at law or equity, than the damages agreed upon: Sun Printing & Pub. Assn. v. Moore, 183 U. S. 642 (22 Sup. Ct. Repr. 240); U. S. v. Bethlehem Steel Co., 205 U. S. 105 (27 Sup. Ct. Repr. 450); Yoder v. Strong, 227 Pa. 432; Mathews v. Sharp, 99 Pa. 560; Streeper v. Williams, 48 Pa. 450; Crane v. Peer, 43 N. J. Eq. 553 (4 Atl. Repr. 72); Brown v. Norcross, 59 N. J. Eq. 427 (45 Atl. Repr. 605); Neill v. Peale, 17 W. N. C. 560.

      John G. Johnson, with him James Wilson Bayard, for appellee.
    Under the contract in suit the vendee can enforce the payment of overdue installments: Steele v. Maher, 38 Pa. Superior Ct. 183; Willis v. Natural Gas Co., 130 Pa. 222; Ray v. Natural Gas Co., 138 Pa. 576; Vito v. Birkel, 209 Pa. 206; Weaver v. Griffith, 210 Pa. 13.
   Per Curiam,

The judgment of the Superior Court is affirmed on the opinion of Judge Porter.


author: Mr. Justice Stewart,

text:
    Butterfield v. Snellenburg et al., Appellant.

      Negligence — Harmful drugs — Failure to dilute — Permanent injury— Proximate came — Damages.
    1. In an action to recover damages for personal injuries where the ground on which recovery is sought is that the defendants, through their agent or clerk in charge of the drug department in their general store, instead of furnishing the plaintiff for immediate use a proper and harmless dose of aromatic spirits of ammonia, for which she had applied, “negligently prepared and compounded a dangerous, poisonous, corrosive and burning liquid mixture,” the negligence charged is sustained by evidence supporting the inference that the dose administered was effective to. produce the injury complained of because not sufficiently diluted, and only because of that circumstance, without evidence that the mixture was compounded of other ingredients than those ordered.
    2. Whether in such a case a permanent physical weakness manifesting itself in incontinence of urine is an element of damage, depends upon whether there is evidence warranting an inference that the shock produced by the medicine was the sufficient and proximate cause of such a weakness; and where several medical experts on the part of the plaintiff testify that this was in itself sufficient to cause the injury and that “such a nervous shock is entirely competent to produce incontinence of urine under the conditions presented,” this question is for the jury.
    Mr. Justice Moschzisker dissents.
    Argued Jan. 19, 1911.
    Appeal, No. 194, Jan. T., 1910, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 3,365, on verdict for plaintiffs in case of William C. Butterfield and Lenore C. Butterfield, his wife, v. Nathan Snellenburg et al., copartners, trading as N. Snellenburg & Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Wiltbank, J.
    The facts appear in the opinion of the Supreme Court.
    At the trial the following point of charge was presented in behalf of the defendants, which the court refused:

      March 20, 1911.
    [1. There is no evidence in the case from which the jury would be justified in finding that the mixture furnished by defendants to Mrs. Butterfield, one of the plaintiffs, on August 18, 1904, contained anything more than aromatic spirits of ammonia, essence of peppermint and water, and as the averments of negligence in the plaintiff’s statement of claim have not therefore been sustained, the jury should render a verdict for defendants.]
    Verdict of $2,000 for the husband and $3,000 for the wife, and judgment thereon. Defendants appealed.

      F. B. Bracken of Loughlin & Bracken, for appellants.—
    Failure of a druggist to properly dilute a nonpoisonous substance, is obviously negligence different in kind and degree from the administering of a harmless mixture ordered by a customer: McLean v. Schoenhut Co., 225 Pa. 100.
    The permanent weakness complained of was not reasonably to be apprehended as a result of a dose of aromatic spirits of ammonia, however undiluted: Chittick v. Transit Co., 224 Pa. 13; Blasband v. Phila. Rapid Transit Co., 42 Pa. Superior Ct. 325; Houston v. Traphagen, 47 N. J. Law, 23; Weber v. Third Avenue R. R. Co., 12 N. Y. App. Div. 512 (42 N. Y. Supp. 789).

      Francis Rawle, with him Guilliaem Aertsen, Jr., and William D. Grimes, for appellees.
   Opinion by

Mr. Justice Stewart,

The ground on which recovery was sought was that defendants, through their agent or clerk in charge of the drug department in their general store, instead of furnishing the plaintiff for immediate use a proper and harmless dose of aromatic spirits of ammonia, for which she had applied, “ negligently prepared and compounded a dangerous, poisonous, corrosive and burning liquid mixture,” which the said servant of the defendants then and there gave the said Lenore C. Butterfield to be drunk by her. It is complained, “that the plaintiff then and there, in ignorance of the said dangerous, poisonous, corrosive and burning mixture, and believing the same to be a harmless dose of aromatic spirits of ammonia, so requested by her as aforesaid, drank the same and became immediately poisoned, and her mouth and throat and other internal digestive organs became burned and inflamed, and that she was immediately shocked both mentally and physically by reason thereof,” etc. There was no direct evidence that the mixture administered plaintiff was compounded of other ingredients than those she had ordered. The intense suffering that immediately followed might have warranted an inference that some mistake had been made in the drug, had it been made to appear that such a moderate dose of aromatic spirits of ammonia would produce no harmful effects; but just the contrary was shown. Dr. Hobart A. Hare, an expert witness called by plaintiff, testified that each particular discomfort which the plaintiff testified followed upon her taking the mixture administered could be produced by the dose of aromatic spirits of ammonia, if the dose was not sufficiently diluted. This necessarily resolved the plaintiff’s case into a claim for negligence in not sufficiently diluting the dose of the particular drug she asked for. If in urging such negligence, there was a variance between the allegata and the probata, which put the defendants to the disadvantage of being required to defend against a cause of action not alleged, the defendants’ first point should have been affirmed; but this cannot be said. What was set out in the statement of claim was that defendants had negligently prepared and administered to plaintiff a dangerous, poisonous, corrosive and burning mixture. The mixture given the plaintiff, as claimed by the defendants, was composed of aromatic spirits of ammonia, essence of peppermint and water. The witness, Dr. Hare, testified that aromatic spirits of ammonia undiluted, or not sufficiently diluted, is a corrosive and irritant poison; that if so administered it will produce exactly the effects which followed here. If this be so, then water in such proportion as would render the mixture harmless was a very essential ingredient, as otherwise the mixture would be both dangerous, poisonous and corrosive, and that would bring the claim strictly within the cause of action alleged in the statement. That something was wrong about the dose administered is not to be doubted in view of the violent suffering on the part of the plaintiff that immediately followed upon her taking it. The testimony on part of plaintiff supports the inference that it was effective to produce the injury complained of because not sufficiently diluted, and only because of that circumstance. Certainly this gave rise to a presumption of negligence on the part of the clerk who prepared and administered the dose; or, speaking more correctly, it was a circumstance amounting to evidence from which the jury would be warranted in inferring such negligence.

The plaintiff was allowed to recover compensation for a permanent physical weakness manifesting itself in incontinence of urine, which it is claimed resulted directly from the shock produced by the strangulation and suffering that followed the taking of the dose administered by defendants’ clerk. That plaintiff is so affected now was not in dispute; nor was her statement that she was not so affected before. According to her own testimony, this ailment resulted immediately and has continued. Whether it was an element of damage to be considered in the case depended on whether there was evidence in the case warranting an inference that the shock produced by the medicine was the sufficient and proximate cause. Several medical experts on part of plaintiff testified that it was in itself sufficient to produce the injury. If sufficient, the circumstances as testified to show clearly enough that it was the proximate cause. Dr. Hare, the witness above referred to, expressed himself on the subject as follows, in answer to a hypothetical case embracing only such facts as were testified to by the plaintiff herself: “My answer to that question would be that it would depend largely upon the degree of shock, the state of the woman’s nervous system, and the degree of relaxation which was present in her genito-urinary organs. It would not produce it in every case. It would produce it in some cases. In other words, if the word ‘would’ is meant to imply that any woman who was subject to the accident already noted in Snellenburg’s store would suffer from incontinence of urine after such an accident, I cannot niiake that sweeping statement. If I may express it by' saying that it was entirely competent, such a nervous shock is entirely competent to be followed by incontinence of urine, I can answer positively, yes, it is entirely competent to produce incontinence of urine under the conditions presented.” On cross-examination he was asked these questions: “Q. Then also it is true that if she got this fright or shock from a mixture of aromatic spirits of ammonia and essence of peppermint, that that might have produced it, as I understand? A. Yes, sir, that was the agent that produced the shock. Q. In other words, that drug, according to your judgment, would be sufficient to produce it if it were pungent? A. Improperly diluted. Q. Improperly diluted it would have caused that shock? A. In other words, if the drug was given in such a concentrated form as to produce the symptoms which she told me she had suffered from, and which have been testified to here, that would have produced great nervous shock, and that great nervous shock might have caused this difficulty in controlling the urine. Q. It is simply because she said that this followed the accident that you conclude the accident might have produced it? A. That is right. Q. That there was a probability that it would have produced it? A. Yes, sir. Q. Therefore, as I gather, your opinion is that the shock might have produced some nervous condition of which the condition of incontinence is a manifestation? A. Precisely.” Two of the medical witnesses called by plaintiff concurred in the view expressed by Dr. Hare. It would have been impossible in view of this direct and positive testimony to exclude this feature of the case from the consideration of the jury. Two medical experts called by defendants expressed a contrary view, and were equally decided that this particular injury could not have been produced by shock. It was a fair question for discussion before the jury as to which of these opposing views was the better supported and which should prevail; and a proper consideration in that connection would be what is so- urged upon our attention here, the fact that plaintiff’s witnesses, if it be a fact, failed, upon being inquired of, to support their views by any accepted medical authority. But that is not a matter of any concern of ours. A review of this medical testimony, with a view to determine which had the better side of the controversy, would here be wholly out of place. The question was one exclusively for the jury, and in what we have said we have sufficiently answered the several assignments of error.

They are overruled, and the judgment is affirmed.

Mr. Justice Moschziskek, dissents.


text:
    White, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Passengers—Car in motion — Case for jury.

    In an action against a street railway company to recover damages for personal injuries the case is for the jury where the evidence is conflicting as to whether the plaintiff was thrown by the starting of a car, as she was in the act of alighting, or whether she stepped from the car when it was in motion.
    Argued Jan. 19, 1911.
    Appeal, No. 196, Jan. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., Nov. T., 1907, No. 4,458, on verdict for defendant in case of William P. White and Annie McKean White, his wife, v. Philadelphia Rapid Transit Company.
    March 20, 1911.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Sulzberger, J.
    At the trial the evidence was conflicting as to whether plaintiff was thrown by the starting of a car as she was alighting, or whether she stepped from a car when it was in motion.
    Verdict for defendant and judgment thereon.

      Errors assigned were various portions of the charge.

      Leo MacFarland, for appellants.

      Thomas Learning, with him D. J. Shern, for appellee.
   Per Curiam,

The right to a recovery in this case, depended on whether the plaintiff, who was injured, was thrown by the starting of a car, as she was in the act of alighting, or whether she stepped from the car when it was in motion. This was a question of fact for the jury, and it was properly submitted.

The judgment is affirmed.


text:
    Umbel’s Election.

      Election law — Expenditures of candidates — Accounts—Act of March 5, 1906, P. L. 78.

    1. An account of a candidate for nomination showing expenditures made in his behalf to secure the nomination, is insufficient under the Act of March 5, 1906, P. L. 78, if it shows moneys paid by the candidate to individual agents of his own to be used on his behalf, but fails to show for what purposes the moneys thus intrusted to the agents were used.

      2. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom, and the purpose for which, the agent paid the money, is not such “a full, true and detailed account,” as the act of 1906 plainly contemplated.
    3. To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally, or by his agent for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; and, moreover, the account must be accompanied by vouchers for all sums expended exceeding §10.00 in amount. Filing the receipts of his agents for the money placed by him in their hands does not fully meet the requirements of the act.
    4. In a contest over a candidate’s account, an agent to whom the candidate intrusted money to be expended, may be asked to give a detailed statement of the manner in which he expended the sums intrusted to him, without any preliminary proof that the candidate knew and consented to the disbursement of the moneys by the agent for illegal purposes. Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292, distinguished and explained.
    5. The agent of the candidate may be asked whether he had spent the moneys received by him from the candidate in the purchase of a vote, or whether he had used moneys of his own for such a purpose with the candidate’s knowledge and consent.
    6. An offer to prove that the agent expended moneys received from the candidate for the purchase of votes to be followed by further proof that such practice and means of getting votes was known to and consented to by the candidate, should be admitted.
    7. In a contest over a candidate’s account of expenditures it is not competent upon cross-examination of the candidate to inquire as to his motive in permitting his counsel to raise objections which they deemed proper to the offer or admission of testimony.
    8. Where a candidate includes in his account the price of a box of cigars, he is not estopped by the fact that he included such an item in his account, from showing that the use of the cigars was but the common courtesy which men extend to friends without any thought on his part or their part that the latter would be influenced in their votes thereby.
    Argued Jan. 20, 1911.
    Appeal, No. 290, Jan. T., 1910, by Robert E. Umbel, from judgment of Superior Court, April T., 1910, No. 125, reversing judgment of Q. S. Fayette Co., June Sessions, 1910, No. 257, dismissing petition for audit in In re Audit of Account of Robert E. Umbel, candidate for democratic nomination to the office of judge.
    Before. Fell, C. J., Brown, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Superior Court. See 43 Pa. Superior Ct. 598.
    The facts appear in the opinion of Rice, P. J., which was in part as follows:
    Preliminarily to a discussion of the questions raised by the assignments of error to rulings upon offers of evidence, it is important to determine whether the account filed by the respondent cpnforms to the requirements of the Act of March 5, 1906, P. L. 78. The account embraced two classes of . items, (1) expenditures made by the respondent personally, (2) payments made by him to certain individuals of certain sums of money "for expenditure in my behalf under the 1st, 2d, 6th, 7th and 8th Par. of sec. 4, act of Mar. 5, 1906.” There are twelve items of the latter class, showing payments to five different persons, aggregating $3,670, and these give no further information as to the purposes for which the money was actually expended than is indicated by the words and the figures above quoted. The receipts given by the persons to whom the respondent paid the money are equally indefinite. The plain import of the account is that these sums of money were paid to these five persons, not as compensation for their services in' disseminating information to the public or in acting as watchers or the like, but to be expended by them in the respondent’s behalf for some or all of the purposes mentioned in these paragraphs of the act, or to reimburse them for payments made by them to others in his behalf for these purposes. These persons did not constitute a political committee by whom or by whose treasurer an account was to be or could be filed; they were merely respondent’s agents or representatives. Although the candidate for nomination may make expenditures for lawful purposes through an agent, “it is still he that acts and when he accounts he must account for all that he has done:” Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom and the purpose for which the agent paid the money, is not such “a full, true and detailed account” as the act plainly contemplates. Speaking of this subject, our Brother Head said, in the case last cited: “In the act now before us the legislative command is that the account shall be Tull, true and detailed,’ and shall disclose the information specified in the language we have already quoted. In the narrowest sense of the word, an account might be true which was neither full nor detailed, which contained but a single item showing the payment of a large sum, in bulk, to some person, but which in no sense exhibited the information demanded by the law. True in fact as to what it actually did disclose, but untrue, false within the meaning of the act, in its failure to obey the mandate of the law, and account for that money in the manner and to the extent required by the lawmaker.” Viewing the account in the light of this construction of the requirements of the statute, we must conclude that the learned judge erred in his findings embraced in the sixteenth and seventeenth assignments of error, wherein he held that the account is true in that it contains a statement of all moneys expended by the respondent in connection with his nomination.
    To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally or by his agent, for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; and, moreover, the account must be accompanied by vouchers for all sums expended exceeding $10.00 in amount. Filing the receipts of his agents for the money placed by him in their hands does not fully meet the requirements of the act. No reason is suggested in the respondent’s account for the omission to set forth in the manner above indicated a detailed statement of the disbursements made by his agents, nor does it appear by his testimony that it would have been impossible for him to do so. Unless these facts can be developed on the audit, one of the manifest purposes of the act can be easily defeated by the omission to give the information in the account itself. Before concluding that the act is so ineffective, it will be well to notice some of its provisions relative to the scope of inquiry permissible on the audit. At the date fixed therefor the person by whom the account has been filed is “required to be present in person, to vouch his account, and answer, on oath or affirmation, all such relevant questions concerning the same as may be put to him by the petitioners or their counsel.” Subpoenas may be issued “to all parties whom the petitioners or the accountant may require to give evidence concerning such account,” and sec. 12 of the Act of March 5,1906, P. L. 78, •provides: “No person shall be excused from answering any question, in any proceeding under this act, on the ground that such answer would tend to incriminate him; but no such answer shall be used as evidence against such person in any criminal action or prosecution whatever, except in an action for perjury in giving such testimony.” If upon the audit the court shall decide “that the account was false in any substantial manner, or that any illegal election expenses were incurred, the costs of said audit shall be paid by the accountant; but, otherwise, by the petitioners.” So, also, if the court shall decide “that any person, whether a candidate or not, has incurred illegal election expenses, or has otherwise violated any of the provisions of this act, it shall certify its decision to the district attorney of the county in which such person may reside, and it shall thereupon be the duty of such district attorney to institute criminal proceedings against such person.” It is thus seen that the scope of the audit of the account of a candidate for nomination is very broad, and, as pointed out in the case cited, the provisions of the act in this regard, being remedial, are to be given liberal construction. Granting that the ultimate object of the audit is to ascertain whether any illegal election expenses were incurred by the candidate, there is necessarily involved in that inquiry, particularly if the account itself does not show the facts, the ascertainment of the amount of each disbursement made by him and of each disbursement made by his agents of the money placed in their hands, the person to whom paid and the object for which the same was disbursed. As the purpose of requiring an account, to adopt the words of our Brother Head, is “to compel the candidate to place upon the public records such clear and detailed information as would enable the people to determine, after an inspection of his account with the accompanying vouchers, whether he had obeyed or violated the mandates of the law in which they were so vitally interested,” so, also, one purpose of the audit of such an imperfect account as this is to ascertain the facts which are not, but should have been, set forth therein. All of the questions put to the witnesses S. E. Frock and B. F. Sterling (these being persons to whom the accountant paid money for disbursement in his behalf or to reimburse them for expenditures made in his behalf), which are quoted in the third, fourth, fifth, sixth, seventh, eighth and ninth assignments of error, were relevant to the purpose of the audit last referred to. For example, the petitioners proposed to ask the witness Frock to give a detailed statement of the manner in which he expended the $1,050 which the account shows was placed in his hand. The stated purposes of this offer were, (1) to show the details which the act requires, (2) to ascertain whether or not the statement made in the receipt that it was spent under the act of 1906 was or was not correct. The objections to this offer were sustained, and as they show quite plainly the theory upon which all similar offers were objected to and rejected, we quote them as they were stated by counsel: “Objected to for the reason that if the expenditures were lawful it is immaterial, and if they were not lawful there is no evidence yet offered showing that such expenditures were made with the knowledge or consent of the candidate, and generally as incompetent and irrelevant.” This theory is entirely inconsistent with the conclusions heretofore stated in this opinion. These witnesses, from whom the petitioners sought to obtain information which ought to have been furnished in the account, were the respondent’s agents. It is not to be presumed that the petitioners knew how, to whom and for what purposes they had disbursed all the money. Moreover, as we have endeavored to show, the relevancy of the evidence they tried to bring out by examination of these witnesses did not depend on proof that the money was spent for illegal purposes. The account did not show in detail how it was spent. “As it did not the audit was made necessary in order that the all-important fact might appear:” Bechtel’s Election Expenses, 39 Pa. Superior Ct. 292. Therefore, the general rule that the order of evidence is within the discretion of the trial court has no application to those assignments. For both of the reasons last suggested, the petitioners should not have been required to prove in advance, or to make a distinct and positive offer to prove afterwards, that the respondent’s money had been disbursed by these agents for illegal purposes, with the respondent’s knowledge and consent. That inquiry would arise when the facts which the account ought to have disclosed were developed. As already suggested, to hold that the petitioners could only inquire of these agents as to the expenditures of the money placed in their hands which the petitioners were able to prove were made for illegal purposes, would be to put a construction on the act which would defeat one of its plain and salutary objects.
    It is urged that the rulings complained of in these assignments were in accordance with our decision in the Bechtel case. This position is not sustained by anything that was said by this court in the opinion in that case, and the tenor of the opinion as a whole is clearly opposed to it. But much stress is laid on the fact that we overruled the fourth assignment in that case, and this is urged as a complete vindication of the rulings under consideration here. We cannot agree with the learned judge and the counsel for the appellee in this contention, and a brief review of the facts and considerations which led to the conclusion that that assignment did not contain reversible error will show that the ruling falls far short of sustaining their position in the present case. In the account filed by the respondent in that case appeared this item: “ J. H. Nichter as per receipt, $700.” The receipt appears at page 293 of the report of the case. Nichter was called by the petitioners and was examined fully by their counsel as to the dates when he received the money from the respondent and as to his expenditure of it. He also produced receipts, which were offered in evidence, showing the persons to whom and purpose for which he had paid it. His examination upon the subject as to how he had spent the $700 was quite full and was not hampered by such objections as were raised in the present case to the examination of the respondent’s agents. Then came the question which was objected to, namely, “Did you furnish any liquor during the campaign in the interests of H. O. Bechtel?” This question on its face was not an inquiry as to how he had expended the $700, but was so worded as to cover expenditures that he may have made on his own account for the purposes mentioned. Nor was the question accompanied by a distinct and unequivocal offer to connect the respondent with the expenditure. Indeed, the answer of counsel for the petitioners to the question of the court while not very clear, tended to show that they could not connect the respondent with it. Upon a full view of the course of the examination of the witness Nichter and the somewhat indefinite and ambiguous character of the question put to him, we were not convinced that the assignment contained reversible error. In order, however, that this ruling may not be misunderstood hereafter, as it apparently was upon the present audit, we remark that if the petitioners’ counsel had asked Nichter the direct question whether he had used any part of the money placed in his hands in purchasing liquors to be given to voters, or whether he had furnished liquors to voters with the knowledge and consent of the respondent, or if objection had been made to the questions requiring the witness to give a detailed statement of the persons to whom and the purposes for which he had paid the $700, and the court had, in either of these instances, sustained the objection, a different question would have been raised by the assignment of error and a different ruling ought to have been, and would have been, made thereon. Comment is also made upon our ruling upon the seventh assignment of error in that case. But there, also, the question put to the witness McGinty was ambiguous; it was not in terms or in effect a question whether the witness had furnished liquors to voters, with the knowledge or consent of the candidate. It is plainly distinguishable from the question the rejection of which is the subject of the twelfth assignment of error. The third, fourth, fifth, sixth, seventh, eighth, ninth and twelfth assignments are sustained.
    The offer in the second assignment of error was to prove by the witness Bell “that part of the money received by Mr. Frock from the accountant was expended by him in the purchase of this man’s vote, to be followed by further testimony that such practice and means of getting votes was known to and consented to by the accountant.” And further on the offer was supplemented by proposing to follow it “by other evidence that this act was with the knowledge and consent of the accountant.” There are two aspects in which this offer may be considered. If it had been merely to prove by this witness, who was a stranger to the respondent, that Frock used money in the purchase of votes, without any allegation that it was the respondent’s money or that it was used for this purpose with the respondent’s knowledge or consent, the relevancy of the offer at the time it was made would not have been apparent. But, being accompanied by an offer to follow it by evidence of the respondent’s consent, it would have been proper for the court to have received the evidence upon the presumption that the offer of counsel, that they would follow it by other evidence of the respondent’s knowledge and consent, was made in good faith. If they failed to make good their offer the court could have struck out or disregarded the testimony adduced in answer to their questions. But it must be conceded that where the relevancy of an offer of evidence depends upon proof of other facts the trial court has discretionary power, in ordinary cases, to say that proof of these other facts shall precede the admission of the offered evidence, and that, unless this discretion be plainly abused, the appellate court will not reverse. The other aspect in which the offer should be considered includes the proposition that the money used by Frock was part of the money which had been placed in his hands by the respondent to be used in the latter’s behalf. In this aspect the purpose of the offer was to show how the money had been expended; and for this purpose the evidence was relevant, as we have endeavored to show in the consideration of the provisions of the statute relative to the scope and purpose of the audit. Of course, we do not mean to be understood as deciding that the candidate would be responsible for the betrayal of the trust reposed by him in his agent. But as the purpose of the statute is to secure publicity as to the persons to whom and the purposes for which the money supplied by the candidate to secure his election has been paid, it is highly important that a wider latitude should be given in the investigation than would be permissible in a criminal prosecution against the candidate for a violation of the election laws relative to the expenditure of money. We are of opinion that the offer should have been admitted. Therefore this assignment is sustained.
    The respondent was represented at the audit by counsel. They made the objections which we have been considering undoubtedly in good faith and in the exercise of their judgment as counsel. It was not competent upon cross-examination of the respondent to inquire as to his motives in permitting his counsel to raise the objections which they deemed proper. The tenth assignment is therefore overruled.
    We cannot see that reversible error was committed in the rejection of the question which is the subject of the eleventh assignment. The fact that the respondent had not obtained itemized accounts of these expenditures unaccompanied by any explanation of the fact, was in the case for the purposes of such legitimate argument as it would tend to support.
    In overruling the fifteenth assignment, we are not to be understood as holding that the influencing or attempting to influence voters by the gift of liquors or cigars is any less illegal than the attempt to influence them by the gift of money or other valuable thing. Under the testimony of the respondent, and the court’s finding of fact based thereon, the item, “Marble’s Drug Store for one box of cigars $3.00,” was not an election expense within the meaning of the act, and need not have been included in his account. He was not estopped, by the fact that he included it in his account, from showing that the use of the cigars was but the common courtesy which men extend to friends, without any thought on his part or their part that the latter were to be influenced in their votes thereby. See Kinney’s Election Expenses, 39 Pa. Superior Ct. 195. This assignment is overruled.
    We cannot say that the findings embraced in the thirteenth and fourteenth assignments are not in accordance with the evidence presented. The fundamental error is that offers of relevant and material evidence were excluded.

      March 20, 1911:
    The judgment is reversed at the costs of the appellee, and the record is remitted to the court below for further hearing, proceeding and decision according to law.

      Error assigned was judgment of Superior Court.

      John O. Johnson, with him D. M. Hertzog, W. C. McKean and Sterling, Higbee & Matthews, for appellant,

      M. H. Stevenson, with him S. J. Morrow, F. P. Rush and H. S. Dumbauld, for appellees.
   Per Curiam,

TPhe judgment is affirmed on the opinion of the learned president judge of the Superior Court.