author: Me. Justice Brown,

text:
    Snyder, Appellant, v. Corn Exchange National Bank.

      Banks and banking — Checks—Forgery—“Fictitious person” — Act of May 16,1901, P. L. 194.
    Where a business firm gives to a clerk a power of attorney to draw checks against its account, and there is nothing in the power of attorney to limit the purpose for which the checks may be drawn,1 or to prohibit the checks from being drawn to bearer, and the clerk draws a check to a person having no business relations whatever with the firm, and forges the name of such person as indorser, and the bank pays the checks, the depositing firm cannot recover the amount of the checks from the bank. The payee of the check is a fictitious person within the meaning of the Act of May 16,1901, P. L. 194. It is, therefore, a check made payable to bearer, and the forgery of the payee's name has no bearing in the transaction as affecting the bank's liability.
    In such a case the fact that the clerk delivered the checks to the proprietors of a “bucket shop” in connection with a gambling transaction, is immaterial; and it is also immaterial that a trust companv in which the checks had been deposited for collection guaranteed the signatures of their depositors, inasmuch as the checks when delivered to the brokers were in contemplation of law cheeks to bearer, and the guaranty was limited only to the indorsement of the brokers.
    The rule that a bank is liable to its depositor for paying a check on a forged indorsement, applies where a check has been lost or stolen and the payee’s name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a check that it may readily be altered, or in issuing a check to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank.
    Argued Jan. 14, 1908.
    Appeal, No. 325, Jan. T., 1907, by plaintiff, from order of C. P. No. 4, Phila. Co., June T., 1906, No. 5,012, discharging rule for judgment for want of a sufficient affidavit of defense in case of George E. Snyder, Individually, and trading as Harrison, Snyder & Son, v. Corn Exchange National Bank.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the amount of checks alleged to have been wrongfully paid by a bank.
    The averments of the statement of claim and the affidavit of defense are set forth in the opinion of the Supreme Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      William 8. Divine, with him George 8. Graham, for appellant.
    The Corn Exchange Bank, defendant herein, can recover from the Real Estate Title Insurance and Trust Company or the banks of the clearing house which collected the proceeds of the forged indorsements, upon the facts of the case as stated in the affidavit of defense: Corn Exchange National Bank v. National Bank of the Republic, 78 Pa. 233 ; Tradesmen’s National Bank v. Third National Bank of Pittsburg, 66 Pa. 435.
    The averment in the affidavit of defense that the checks were regularly deposited and paid in the usual course of business, is no defense: Corn Exchange Nat. Bank v. Nat. Bank of the Republic, 78 Pa. 233.

      June 2, 1908:
    The plaintiff, as a depositor in the defendant bank, is entitled to recover back money deducted from his account and paid out upon forged indorsements : Chambers v. Union Nat. Bank, 78 Pa. 205 ; Robb v. Pennsylvania Co., 3 Pa. Superior Ct. 254.
    The affidavit of defense is insufficient to prevent judgment, because there is nothing in the power of attorney expressed or to be implied from the circumstances authorizing the forged indorsement of Charles Niemann’s name, or authorizing the bank to pay on it.
    The checks having been given in gambling transactions for an illegal consideration, are void, even if in the hands of an innocent holder for value under the act of April 22, 1794, 3 Sm. L. 177; P. & L. Dig. 2203: Harper v. Young, 112 Pa. 419 ; Unger v. Boas, 13 Pa. 601; Brua’s Appeal, 55 Pa. 294-298; Comly v. Hillegass, 94 Pa. 132; Durr v. Barclay, 8 Pa. C. C. Rep. 285.

      John Cromwell Bell, with him B. Gordon Mo Couch, for appellee.
    Where a depositor draws a check upon his bank payable to the order of a person who has no interest and is not intended to have any interest in the check or its proceeds, the check is in law payable to the order of a fictitious person.
    Where a check is drawn and issued payable to the order of a fictitious person with the knowledge of the person making it so payable, the check is in law payable to bearer, and by paying the check to bearer the bank’s duty to depositor is discharged.
    A bank, in paying its depositor’s checks, does not assume the risk of the genuineness or forgery of the indorsement of the name of a fictitious payee thereon : United Security Life Ins. & Trust Co. v. Central Nat. Bank, 185 Pa. 586; Land Title & Trust Co. v. Bank, 196 Pa. 230; Bank of England v. Vagliano, L. R. Appeal Cases (1891) 107; Phillips v. Mercantile National Bank of New York, 140 N. Y. 556 (35 N. E. Repr. 982); Coggill v. American Exchange Bank, 1 N. Y. 113.
   Opinion by

Me. Justice Brown,

In determining whether the rule for judgment for want of a sufficient affidavit of defense was properly discharged by the court below, the following material averments in plaintiff’s statement must be first considered: George E. Snyder, the plaintiff, trading and doing business as a broker in the city of Philadelphia, under the name of Harrison, Snyder & Son, was a depositor with the Corn Exchange National Bank, the defendant. He had in his employ a clerk named Edwin S. Greenfield, who was authorized to draw checks in his name against his deposit in the said bank for the special purposes stated in written power of attorney, lodged with the bank. This power of attorney was as follows: “ Know All Men By These Presents, That we, Harrison, Snyder & Son, do make, constitute, and appoint Edwin S. Greenfield, our true and lawful attorney for us and in our name.

“ 1. To draw checks against our account in the Corn Exchange National Bank.

■ “ 2. To indorse notes, checks, drafts, or bills of exchange which may require indorsement for deposit as cash or for collection in said bank.

“ 3. To indorse any paper we may offer said bank, for discount.

i. To accept all drafts or bills of exchange which may be drawn upon.

“ 5. To make substitution in collateral loans, and to do all lawful acts requisite for effecting these premises; hereby ratifying and confirming all that the said attorney shall do therein by virtue of these presents :

“ In witness whereof, we have hereunto set our hand and seal, this 19th day of February, in the year of our Lord, one thousand nine hundred and two (1902).

“ Harrison, Snyder & Son.

“ Signed, sealed and delivered in the

presence of

“ C. Meyer, Jr.”

Against plaintiff’s deposit with the defendant Greenfield, as attorney aforesaid, drew four checks payable to the order of Charles Niemann, amounting in the aggregate to $18,387.50. The first, for $6,000, was-drawn on April 18, 1906; the second, for $1,800, on April 27, 1906; the third, for $2,587.50, on May 1, 1906, and the fourth, for $8,000, on May 3, 1906. These checks were paid by the bank and charged to the account of the plaintiff. They purported to have been endorsed by the said Charles Niemann, but the indorsements of his name were forgeries and were never authorized by him or the plaintiff. The said checks purported to have been indorsed in blank by said forged indorsements to the firm of R. M. Miner & Company, a copartnership, purporting to carry on a stock and grain brokerage business, based upon actual purchases, sales and deliveries, but actually conducting a gambling establishment, popularly known as a bucket shop.” The said four checks vvere deposited by the said R. M. Miner & Company with the Real Estate Title Insurance and Trust Company, of Philadelphia, which acted as a bank of deposit for the said R. M. Miner & Company. The said trust company indorsed three of the said checks, guaranteeing the previous indorsements, to certain banks in the city of Philadelphia for collection, through which they were collected. The fourth check was also indorsed by the said trust company, but without guaranteeing the previous indorsements. The defendant, the Corn Exchange National Bank, replying upon the guaranty by the Real Estate Title Insurance and Trust Company of the indorsements upon the three checks, and upon its indorsement of the fourth, paid each of said checks, to it, through its collecting agents. ■

Upon the averments that the indorsements purporting to be those of Charles Niemann were forgeries, that the Real Estate Title Insurance and Trust Company collected the proceeds of the checks with actual knowledge of the character of the business of the firm of R. M. Miner & Company, that the defendant had constructive notice of the business of said firm, and that the said checks were not given in due course of business, the plaintiff claims to recover from the appellee the amounts it paid on them.

Turning to the affidavit of defense we find the following averred by the defendant: The plaintiff had in his employ as his confidential’ clerk and manager, Edwin S. Greenfield, to whom he largely intrusted the conduct and management of his business, particularly that portion of it relating to the finances, and the said clerk or manager had, by virtue of the power of attorney of February 19, 1902, drawn many checks upon the defendant, amounting in the aggregate to many thousand dollars, which checks had been paid by the defendant on presentation and no payment had ever been questioned by the plaintiff. Greenfield after having drawn to the order of Niemann the four checks set forth in plaintiff’s statement, delivered them to R. M. Miner & Company in the regular course of business, in payment of accounts due to the said firm. R. M. Miner & Company, after indorsing the said checks, deposited them with the Real Estate Title Insurance and Trust Company in the regular course of business, and the same were paid to the said trust company through the agencies set forth in plaintiff’s statement. At the time each of the checks was drawn by Greenfield there were no business transactions pending between the plaintiff and Charles Niemann, and there were not due to him the amounts of said checks or any other sum or sums of money whatever. When Greenfield drew the said checks and forthwith delivered them to R. M. Miner & Company, he intended to cheat and defraud the plaintiff to the extent of $18,387.50 by having the checks paid to the said firm. He intended to write, and actually did write, the name of the said Charles Niemann on the back of the said checks in order to induce R. M. Miner & Company, and all others to whom they might be presented, to accept them as if they had been issued by the plaintiff to the said Charles Niemann in the regular course of business and had been indorsed by him, the payee named in them. When Greenfield, as attorney for the plaintiff, drew the checks to the order of Niemann, he well knew that the latter had no right to them, or any of them, and it was never intended by Greenfield that Niemann should receive them or the proceeds thereof. Niemann was not a real, bona fide payee, but was, in legal contemplation, a fictitious person, a fact well known to Greenfield at the time the checks were drawn. Said checks thereupon became payable to bearer, and the defendant is in no manner affected by the forged indorsements of Niemann’s name thereon. Neither R. M. Miner & Company, the said the Real Estate Title Insurance and Trust Company, nor its collecting agents, had any notice or knowledge of any kind of the fraud of Greenfield until long after the checks had been paid by the-defendant in due course in the regular order of business, and the said trust company had no knowledge of the character of the business of R. M. Miner & Company as set forth in plaintiff’s statement, if such was the fact, and that the checks represented gambling transactions.

It is to be noted that, though the averment in plaintiff’s statement is that Greenfield was authorized to draw checks for the special purposes ” stated in the power of attorney, no special purposes are therein named. His authority to draw checks was a general and unlimited one, and upon the presentation of any check drawn by him as attorney for the appellant the bank was under no duty to ascertain the purpose for which it had been drawn. It was as safe in paying any check drawn by him as attorney for the plaintiff as it would have been if the check had been drawn by the plaintiff himself. By conferring this general power upon Greenfield the appellant made it possible for him to abuse it, and, having been abused by him, the principal now asks that another, the bank which innocently paid the checks, and not he, shall bear the consequences of the fraud of the agent whom he trusted. This result cannot follow unless in the face of the facts as set forth in the affidavit of defense, which for the present we must assume to be true, the appellee paid the checks and charged them to the appellant’s account in disregard of a duty which it owed him.

Greenfield had admittedly been authorized to draw checks payable to bearer. A check so drawn and delivered by him to anyone could have been indorsed by the holder to another, and the payment of it by the bank to the indorsee could not have been questioned by the appellant. If, instead of drawing the four checks to the order of Niemann he had made them payable to bearer and gone to the bank and drawn the money himself, the appellant could not have repudiated the bank’s payment to him ; or, if having made them payable to bearer he had delivered them to R. M. Miner & Co., and they had been indorsed by that firm to the Real Estate Title Insurance & Trust Company, and collected by it through the agencies set forth in plaintiff’s statement, it would have been idle for the appellant to challenge the payments by the appellee in the face of his power of attorney clothing his clerk with unlimited power in drawing checks in his name and lodged by himself with the bank as its authority to pay any checks drawn by virtue of it. Greenfield was responsible to his employer for the abuse of the power conferred upon him, and the employer’s concern was that it should not be abused ; but it was never any concern of the bank why, or for what purpose, any check had been drawn by the clerk under the broad power given him by the employer. Its sole duty was to pay Avithout question whenever a check so drawn was presented by the party to whom Greenfield intended it to be paid, and his intention every time he drew a check became, as to the bank upon which it was drawn, the intention of the man who had empowered him to draw it.

By our negotiable instruments Act of May 16,1901, P. L. 19T, a check is payable to bearer “ when it is payable to the order of a fictitious or non-existing person, and such fact was known to the person making it so payable.” The averment in the affidavit of defense is that Niemann was not a real, bona fide payee, but was in legal contemplation a fictitious person, such fact having been well known to Greenfield at the time he drew the checks; that Niemann had no right to them, or any of them, and it never was intended by Greenfield that he should receive them or their proceeds. Niemann may have been an existing person, but he could have been, and was, a fictitious one within the meaning of the act of assembly if Greenfield intended to use, his name, and did use it, as that of a person who should never receive the checks nor have any right to them. The intent of the draAver of the check, in inserting the name of a payee, is the sole test of whether the payee is a fictitious person, and the intent of the drawer of these checks as attorney for the appellant must, as just stated, be regarded as against the bank upon which they were drawn as the intent of the appellant himself. A fictitious person within the contemplation of the act of 1901 is not merely a non-existing one, for, if so, the word “ non-existing ” would have been sufficient Avithout more. It is clear, then, that when the legislature declared that a check payable to a “ fictitious or non-existing person ” is to be regarded as payable to bearer, it meant a fictitious person to be one who, though named as payee in a check, has no right to it, or the proceeds of it, because the drawer of it so intended, and it,' therefore, matters not whether the name of the payee used by him be that of one living or dead, or of one who never existed.

In Bank of England v. Vagliano, L. R. Appeal Cases (1891), 107, the English bills of exchange act of 1882, after which Our act of 1901 was modeled, was construed, and, in answering the contention that the word “ fictitious ” was only applicable to a creature of imagination, having no legal existence, Lord Herschell said : “ If so, there was no necessity for the introduction of the word ‘ fictitious ’ in the enactment; the word ‘non-existent’ would have sufficed. . . . Where, then, the payee named is so named by way of pretense only without the intention that he shall be the person to receive payment, is it doing violence to language to say that the payee is a fictitious person ? I think not. I do not think that the word ‘ fictitious ’ is exclusively used to qualify that which has no real existence.” Lord Morris, following, said : “ I entirely agree in the conclusion arrived at by my noble and learned friend, Lord Herschell, viz. : that whenever the name inserted as that of the payee is inserted without any intention that payment shall only be made in comformity therewith, the payee becomes a fictitious person within the meaning of the bills of exchange act, 1882, section 7, sub-section 3, and that the bill may be treated by a legal holder as payable to bearer; and, having had the advantage of reading the noble and learned lord’s judgment in print, I concur in the reasoning by which that conclusion is arrived at.” In this Lord Watson concurred, saying : “ I - think that the language of the sub-section taken in its ordinary significance imports that a bill may be treated as payable to bearer in all cases where the person designated as payee on the face of it is either non-existing, or, being in existence, has not, and never was intended to have, any right to its contents.” •

■ In Phillips v. Mercantile National Bank of New York, 140 N. Y. 556, a case singularly similar to the one now before us, the New York court of appeals, in construing the word “ fictitious” in a statute of that state containing the same provision as ours, attached to it the same meaning as is given to it in Vagliano v. Bank of England. Bartlett, the cashier of the National Bank of Sumter, South Carolina, had authority from it to draw checks or drafts upon the Mercantile National Bank of New York, with which it had an account. He drew checks upon that bank, making them payable to the order of existing persons, but without their knowledge, and then indorsed the checks in their names to a firm of stockbrokers in New York, who collected them from the Mercantile National Bank. The receiver of the Sumter bank brought suit against that bank to recover back the amounts which it had paid on Bartlett’s checks, on the ground that the indorsements of the names of the payees were forgeries. It was held that there could be no recovery because the checks had been made payable to fictitious persons, even though the names adopted were^those of known and existing ones, and were, therefore, to be regarded as having been made payable to bearer and intended for delivery to the stockbrokers in New York. This having been the intent of Bartlett, who had authority from his bank to draw the checks, his intent was said to have been, so far as the New York bank was concerned, the intent of his bank, and that whatever he did in drawing and delivering the checks was to be regarded as its act. In the course of its opinion the court said: “ Whether indorsing the check in the name of the payee therein was a forgery in the legal sense, or not, is not the important question. In a general sense, of course, the cashier did forge the payee’s name, but that fact did not affect the title or rights of the defendant: (Coggill v. American Exchange Bank, 1 N. Y. 113.) In the case cited, a bill was drawn upon the plaintiff to the order of one Truman Billings and was discounted at a bank. The drawer had indorsed it with the name of the payee, Truman Billings, a person who in fact had no interest in the bill. It was held that the defendant in the case, who had accepted and paid the bill, held it by a good title. Bronson, J., said: As the payee had no interest and it was not intended he should ever become a party to the transaction, he may be regarded, in relation to this matter, as a nonentity, and it is fully settled that when a man draws and puts into circulation a bill, which is payable to a fictitious person, the holder may declare and recover upon as a bill payable to bearer. In legal effect, though not in form, the bill is payable to bearer.’ The case of Shipman v. Bank of the State of New York, 126 N. Y. 318, .... was a case wholly other than was made out here. It was stated in the Shipman case that the maker’s intention is the controlling consideration, which determines the character of the paper, and that the statutory rule which gives to paper drawn payable to the order of a fictitious person, and negotiated by the maker, the same validity as paper payable to bearer, applies only when such paper is put into circulation by the maker with knowledge that the name of the payee does not represent a real person. The principle of that decision is quite applicable to the case at bar. Though Bartlett selected, for the execution of his dishonest purposes, the names of persons who were dealers with his bank, it was, in legal effect, as though he had selected any names at random. The difference is, that by the methods resorted to, he averted suspicion on the part of the directors or other officers of his bank. The names he used were, for his purposes, fictitious, because he never intended that the paper should reach the persons whose names were upon them. The transaction was one solely for the fraudulent purpose of appropriating his bank’s moneys by a trick which his position enabled him to perform. Concededly, if the names of the payees were of fictitious persons, the Sumter bank would have had no claim upon the defendant.....The fictitiousness of the maker’s direction to pay does not depend upon the identification of the name of the payee with some existent person, but upon the intention underlying the act of the maker in inserting the name. Where, as in this case, the intent of the act was, by the use of the names of some known persons, to throw directors and officers off their guard, such a use of names was merely an instrumentality or a means which the cashier adopted, in the execution of his purpose to defraud the bank, in an apparently legitimate exercise of his authority. The cashier, through his office, and the powers confided to him for exercise, was enabled to perpetrate a fraud upon his bank, which a greater vigilance of its officers might have earlier discovered, if it might not have prevented. If his position and the confidence reposed in him were such as to enable him to escape detection for the while, then the consequences of his fraudulent acts should fall upon the bank, whose directors, by their misplaced confidence, and gift of powers, made them possible, and not upon others, who, themselves acting innocently and in good faith, were warranted in believing the transaction to have been one coming within the cashier’s powers. It may be quite true that the cashier was not the agent of the bank to commit a forgery or any other fraud of such a nature, bat he was authorized to draw or check upon the bank’s funds. If he abused his authority and robbed his •bank, it must suffer the loss. The distinction between such a case and the many other cases which the plaintiff’s counsel cites from, is in the fact that it was within the scope of this cashier’s powers to bind the bank by his checks. In transmitting them, made out and indorsed as they were, the bank was so far concluded by his acts as to be estopped from now denying their validity.” If the' checks drawn by Greenfield to the order of Niemann as a fictitious person had been drawn by Snyder himself with the same intent as Greenfield’s, and he had indorsed Niemann’s name on them and handed them to R. M. Miner & Co., it would not be pretended that he would have any claim against the appellee. And yet this is the real situation, for when Snyder lodged with the bank his power of attorney to Greenfield, he in effect said to it: “ Any check drawn upon you by Greenfield as my attorney and issued by him is to be paid by you as having been drawn aud issued by me.” If this is not sufficient to protect the bank from liability for what the appellant now charges were its mispayments out of his funds, it is not easy to conceive what would be.

The guaranty of the previous indorsements on the checks by The Real Estate Title Insurance and Trust Company was a guaranty of the indorsement of R. M. Miner & Co., for it was the only one upon the checks in legal contemplation when they were deposited with the trust company. When the checks were delivered to R. M. Miner & Co. they were, as shown, payable to bearer, and nothing, therefore, need be said of the contention of the appellant as to the liability of the trust company to the appellee upon the guaranty of the indorsements on the checks unless it be to repeat what we have said through our Brother Fell in recognizing, the liability of a bank to its depositor for payment of a check on a forged indorsement : “ The rule applies where a check has been lost or stolen and the payee’s name has afterwards been forged; but it does not protect a depositor who is in fault, as in intrusting a check to one who he has reason to suppose will make a fraudulent use of it, or in so carelessly filling up a check that it may readily be altered, or in issuing a check to a fictitious person. It is confined to cases in which the depositor has done nothing to increase the risk of the bank: ” .Land Title & Trust Company v. Northwestern National' Bank, 1Q6 Pa. 230. The allegation that the checks were delivered to R..M. Miner & Co. in connection with gambling or wagering transactions is unavailing, in view of the averments in the affidavit of defense: Bank v. Arnold, 187 Pa. 356.

The assignment of .error is overruled and the order of the court discharging the rule for judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Weir v. Haverford Electric Light Company, Appellant.

      Negligence — Electric light company — Degree of care — Contributory negligence — Comparative negligence.

    While companies furnishing electricity are held to the very highest degree of care practicable to avoid injury to persons who may be lawfully in proximity to their wires, such persons are not relieved from the consequences of their own neglect, nor are the companies liable'for accidents that were not in reason to be foreseen and guarded against.
    In an action against an electric light company to recover damages for the death of plaintiff’s husband, no recovery can be had where the evidence shows that the deceased, a house painter, went upon a. roof to paint, that he was twice warned of danger from contact with the electric wires, but notwithstanding the warning he placed his hand-in such a position that it came in contact with a wire where the rubber covering was only off to the extent of an inch, and the wire itself was at this point securely fastened seven feet above any place from which it could be ordinarily reached. '

    The doctrine of comparative negligence has no recognition in Pennsylvania. Any negligence on the part of plaintiff that contributes to and is the proximate cause of his injury defeats his action. There can be no balancing or matching of degrees of'negligence.
    In an action against an electric light company to recover damages for death of plaintiff’s husband caused by contact with an exposed wire, where there is no evidence that the defendant maintained a common nuisance, or was guilty of'Wanton negligence, it is error for the trial judge in his charge to refer to the' negligence of the deceased as being “light” negligence, and that of the defendant as being “he.avy” negligence.

      Argued Jan. 20, 1908.
    Appeal, No. 214, Jan. T., 1907, by defendant, from judgment of O. P. No. 2, Phila. Co'., Dee. T., 1902, No. 3,265, on verdict for plaintiff in case of Lizzie C. Weir v. Haverford Electric Light Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Sulzberger, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $12,000, upon which judgment was entered for $8,500, all above that amount having been remitted. Defendant appealed.

      Errors assigned were (1) in refusing binding instructions for defendant, and (5) in charging as follows :
    “ To sum up, if the two were both guilty, the decedent and defendant, if they were both guilty of ordinary negligence, there can be no recovery in this case. If they were both guilty of grave and wanton negligence, there can be no recovery in this case. If the defendant was guilty of wanton negligence, of maintaining a nuisance, and the decedent was merely guilty of ordinary inadvertence, then the plaintiff can recover. So that in the two cases of either heavy negligence or light negligence, if they were both equally guilty that is the end of it. It is only when there is an inequality that the plaintiff can recover. If the decedent was guilty of mere inadvertence, and the defendant was guilty of much more than mere inadvertence, to wit: of maintaining a nuisance dangerous to the lives of citizens criminally negligent, in that case the plaintiff can recover, and also the plaintiff can recover if the decedent was not guilty of any negligence whatever, and the deféndant was guilty of negligence leading to the injury.”

      Charles Biddle, of Biddle, Paul, Miller dc Jayne, for appellant.
    The plaintiff cannot recover in this case if her husband was guilty of contributory negligence, and it is immaterial what was the degree of such negligence : Pass. Ry. Co. v. Bresner, 97 Pa. 103 ; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306 ; Kibele v. Phila., 105 Pa. 41; McDonald v. Iron

      & Coal Co., 135 Pa. 1; Winner v. Oakland Twp., 158 Pa. 405 ; Kaufhold v. Arnold, 163 Pa. 269 ; McEwen v. Hoopes, 175 Pa. 237 ; Nuss v. Rafsnyder, 178 Pa. 397; Wood v. Electric Co., 185 Pa. 529 ; Boyle v. Boro, of Mahanoy City, 187 Pa. 1; Mitchell v. Stewart, 187 Pa. 217; Artz v. Lit, 198 Pa. 519 ; Hart v. Allegheny County Light Co., 201 Pa. 234 ; Jennings v. Union Traction Co., 206 Pa. 31; Simmons v. Traction Co., 207 Pa. 589; McIntire v. Steel Foundry, 208 Pa. 34; Durst v. Bromley Bros. Carpet Co., 208 Pa. 573; Alexander v. Light Co., 209 Pa. 571; McNeil v. Clairton Steel Co., 213 Pa. 331; Zeilmann v. McCullough, 214 Pa. 27; Hoffman v. Transit Co., 214 Pa. 87 ; Danisch v. Amer, 214 Pa. 105 ; Slota v. Lumber & Mfg. Co., 215 Pa. 434 ; Hotchkin v. Erdrich, 214 Pa. 460; R. R. Co. v. Norton, 24 Pa. 645 ; Thomas v. Ry. Co., 132 Pa. 504; Mattimore v. Erie, 144 Pa. 14; Del., L. & W. R. R. Co. v. Cadow, 120 Pa. 559.
    There is nowhere to be found in the Pennsylvania decisions upon questions of the civil responsibility for negligence any authority for “ matching ” the degrees of negligence of which, the plaintiff and the defendant may -have been guilty. Nor is there to be found any such nomenclature, as “ heavy negligence ” and “ light negligence: ” Lynch v. Troxell, 207 Pa. 162; Phila. Traction Co. v. Orbann, 119 Pa. 37,
    The jury ought not to have been instructed that it was any part of their duty to ascertain whether the defendant .was guilty of maintaining a common nuisance: Lancaster Turnpike Co. v. Rogers, 2 Pa. 114; Com. v. Yost, 197 Pa. 171.

      A. 8. L. Shields, with him Sandberg Ileymann, for appellee.
    The case was for the jury : Patterson v. Ry. Co., 210 Pa. 47 ; Unger v. R. R. Co., 217 Pa. 106; Schum v. R. R. Co., 107 Pa. 8; Alexander v. Nanticoke Light Co., 209 Pa. 571; Wood v. Diamond Electric Co., 185 Pa. 529; Fitzgerald v. Electric Illuminating Co., 200 Pa. 540.
    The principle that contributory negligence is no defense where the defendant’s negligence is so wanton or- reckless as to be the legal equivalent of willful or intentional wrong, is well established in other jurisdictions : Georgia Pacific Ry. Co. v. Lee, 92 Ala. 262 (9 So. Repr. 230); Louisville & Nashville Ry. Co. v. Crawford, 89 Ala. 240 (8 So. Repr. 243); Hector Mining Co. v. Robertson, 22 Colo. 491 (45 Pac. Repr. 406); Florida Southern Ry. v. Hirst, 30 Fla. 1 (11 So. Repr. 506); Denman v. Johnston, 85 Mich. 387 (48 N. W. Repr. 565); Wabash Railroad Co. v. Speer, 156 Ill. 244 ( 40 N. E. Repr. 835); Central Railroad & Banking Co. v. Newman, 94 Ga. 560 (21 S. E. Repr. 219) ; Menger v. Laur, 55 N. J. L. 205 (26 Atl. Repr. 180).
    June 2, 1908:
   Opinion by

Mr. Justice Fell,

The testimony on which the plaintiff relied to establish negligence on the part of the defendant was this: The defendant, in order to furnish electricity for lighting a dwelling house in a rural district, extended two wires from the top of a pole thirty feet high to a transformer which was fastened to the side of a tank house that was on the top of the dwelling. The pole was on the bank of a country road nearest the dwelling and the wires were 120 feet in length and were suspended thirty feet from the ground over private property. They were from four to six inches apart and seven feet above the roof of the dwelling, and eight inches from the wall of the tank house to which they were fastened. The wires were coated with rubber, over which there was a canvas cover that had become weather-worn and frayed, and in places hung in shreds from the wire! The rubber coating was unbroken except at one place at a bend in the wire near the transformer, where it was worn or broken off, and an inch of the wire was bare. Plow long this inch of wire had been bare was not shown. The defendant employed no one whose special duty it was to inspect the wires, but it was the duty of the linemen, who read the meters monthly and installed meters and transformers and made ordinary repairs, to observe the wires and to repair or report any defects. The canvas on these wires had been frayed and hanging in shreds for three months before the accident. The bare wire could be safely handled by a person standing on a dry board or box, and had been handled with bare hands by the plaintiff’s witness. To touch it while standing on metal or á wet surface was exceedingly dangerous and would probably cause death.

The plaintiff’s husband, James Weir, was a journeyman painter and with two other men, McAfee, a journeyman, and Keegan, a foreman in charge of the work, was engaged in painting the outside wood and brickwork of the dwelling. They first worked on the top of the tank house and while there they observed the wires below, and one of them remarked that, “ it looked like a rag show.” Before they went on the roof of the dwelling house, Keegan told Weir, to be careful of the wires, that he did not know the danger.” When.they came up a ladder to this roof to work, Weir read the name of the maker and the capacity of the transformer, and remarked, It isn’t the Watts that would fix you, it is the electricity that is in it.” What then,took place is thus described by the plaintiff’s only witness to the occurrence: “ Then he went on painting. Mr. Weir was coming down the end of the weather boarding along the mansard roof. Mr. Keegan went to work in the corner and reached his part off the stepladder. Mr. Weir was painting from the bottom up on the brickwork. He got up to the bottom of the transformer. Mr. Keegan told him to wait for the stepladder, that he could reach it off the stepladder over the transformer where there would be no danger. The consequence was he reached between the wires and was struck at the point connecting the wires with-the transformer.” When shocked he fell from the roof of the dwelling to the roof of a porch below and from there to the ground. Whether his death was caused by the shock or the fall, which broke his neck, was unknown.

This was the case made out by the plaintiff’s witnesses and there was nothing in the testimony produced by the defendant that added strength to it or presented it in a different, light. Its witnesses corroborated those of the plaintiff and showed that additional and more specific warnings had been given by Keegan to Weir. The only defect that made the wire dangerous was that it was bare for the space of an inch. The rest of it from the pole to the transformer was safé, although the outer canvas cover was worn and frayed. The-bare spot was thirty feet above the ground, seven feet above the roof of the building over which the wire passed and at a bend near the transformer. This was a place where no one was likely to go except on rare occasions, and the wire was in a position where no one could run against it or touch it accidentally in ignorance of its presence. .

Because of the danger of electricity, companies furnishing it are held to the very highest degree of care practicable to avoid injury to anyone who may be lawfully in proximity to their wires: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540 ; Daltry v. Media Electric Light, etc., Co., 208 Pa. 403; Alexander v. Nanticoke Light Co., 209 Pa. 571. The rule in regard to the degree of care that will be exacted was clearly announced and rigidly applied in these cases, but their facts, as indicating negligence or fixing its degree, have but slight resemblance to the facts in this case. In the first of them, improperly insulated wires were stretched eight or ten inches over the roof of a building and were in such a position that the person injured was required to move them in order to continue his work. In the second, a heavily charged and unused wire was allowed to hang within a few inches of the ground, close to a driveway near its entrance from a public road to a lawn where children were accustomed to play. In the third, the proprietor of a store was injured by taking hold of an ordinary incandescent light bulb suspended by a cord and using it in the way it was intended to be used. In that case it was held that, while the electric company was not an insurer, a presumption of negligence arose and the burden of explanation was upon it, and it was said in the opinion by our Brother Brown : Against patent dangers or against those as to which he may have been warned, the user of electricity must of course guard himself, and, if he dallies with them, taking hold, by way of illustration, of an appliance emitting sparks or handling an uninsulated wire after having been warned not to do so, he voluntarily places himself in peril and cannot recover, if injured.” These cases establish a high standard of duty for electric companies, but they do not relieve a plaintiff from the consequence of his own neglect, nor impose on a defendant liability for an accident that was not in reason to be foreseen and guarded against.

But, if we assume that there was sufficient evidence of the defendant’s negligence to require the submission of that question to the jury, we find no warrant for submitting the question of wanton negligence and the maintenance of a common nuisance, nor for the instruction that, notwithstanding the negligence of the deceased, there could be a recovery if there was an inequality in the degrees of negligence, that on his part being ordinary or “ light ” negligence, and that on the part of the defendant wanton or “ heavy ” negligence. There was no evidence of wanton negligence, of an intention to injure, or of a reckless disregard of the safety of others. The full extent of the defendant’s default was that the rubber covering was off an inch of wire that was securely fastened to the side of a private house seven feet above any place from which it could be reached. Of this defect no one had actual or constructive notice. No one knew whether it had been off an hour or a year. The defendant’s agents had not looked to see. If it was negligent, this was the full measure of its neglect.

The doctrine of comparative negligence has not been recognized in our state. Any negligence on the part of a plaintiff that contributes to, and is the proximate cause of, his injury defeats his action. There can be no balancing or matching of degrees of negligence. This has been held so rigidly that in Monongahela City v. Fischer, 111 Pa. 9 ; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449, and Mattimore v. Erie City, 144 Pa. 14, the judgments were reversed because of the use of the word “ material ” to qualify the degree of the plaintiff’s negligence. Railway Co. v. Boudrou, 92 Pa. 475, and Railway Co. v. Rosenzweig, 113 Pa. 519, are not in point, and have no relation to the question. In the first, a passenger riding on the rear platform of a crowded street car was struck by the pole of a horse car following, and it was held that under the circumstances he was not negligent, and that, although his position on the platform made the accident possible, it was a condition and not the cause of his injury. It was said in the opinion, quoting from Creed v. Railroad Co., 86 Pa. 139 : “ The test for contributory negligence is found in the affirmative of the question, Does that negligence contribute in any degree to the production of the injury complained of ? If it does, there can be no recovery ; if it does not, it is not to be considered.” In the second, it was held that the mistake of the plaintiff in getting on the wrong train did not relieve the railroad company from liability for injuries occasioned by the wrongful act of the conductor in putting him off in the dark at a place where there was a network of tracks and switches on which trains and engines were moving. The plaintiff’s duty to exercise care.for his safety after he had been put off was fully recognized, and the instruction was given that any negligence on his part after he had been ejected would defeat his right to recover.

We are of opinion that the negligence of the deceased was so clearly established by the plaintiff’s witnesses that a non-suit should have been entered or a verdict directed for the defendant. He knew the wires were charged with electricity, and that they were dangerous. He may not have observed the break in the rubber cover which was before his eyes, nor comprehended its significance, but he was twice warned of the danger, and directed not to attempt to paint above the wires while standing on the roof. Notwithstanding these warnings he persisted in doing the work in the most dangerous manner, and deliberately placed his arm between the wires, which were six inches apart, and attempted to paint the wall above and eight inches back of them. This was simply trifling with a danger of which he was conscious. His death, as in the case of the plaintiff’s husband in Wood v. Diamond Electric Co., 185 Pa. 529, who touched a screen which he had been told was charged with electricity from a defectively insulated wire, “ was the result of his own voluntary and deliberate act.”

The judgment is reversed and judgment is now entered for the defendant.


author: Mr. Justice Potter,

text:
    Cridland, Appellant, v. Crow.

      Sheriff — Action against — Assault by deputy — Personal injuries— Physician — Evidence—Conduct of plaintiff when not on stand — Charge.
    In an action against a sheriff to recover damages for an assault by a deputy in executing a writ, where the plaintiff and her sister testify to a continuous condition of injury, a physician may testify as to the physical condition of the plaintiff six months after the assault, and that he then treated her for the condition which she described on the trial'. In- such a case the jury should be cautioned that they must be satisfied from the evidence that the injured condition of plaintiff when she was treated by the physician was -connected with and resulted from the injury inflicted by the deputy.

      It is-reversible error for the court in such-a ease to refer to an hysterical outbreak of the plaintiff in the court room when she was not on the witness stand, as an exhibition which might aid the jury in determining whether the plaintiff's excitable temperament was not in a measure the cause of her trouble with the deputy sheriff; and this is particularly so in view of the fact that the plaintiff charged her excitability in part to the effect of the injury in question.
    Great latitude is properly given to the trial judge in commenting upon the evidence, but it is going too far to comment upon the conduct of a witness while not upon the stand.
    If the witness shows bias, feeling or partiality upon the stand it may very properly be commented upon as affecting credibility; but the demeanor or conduct of the witness while not upon the stand is no part of the evidence in the case.
    Argued March 27, 1908.
    Appeal, No. 101, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 3,071, on verdict for defendant in case of Ella Cridland v. Alexander Crow, Jr.
    Before Mitchell, C. J.,'Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass, against the sheriff to recover damages for an assault alleged to have been committed by. a deputy sheriff in executing a writ of possession. Before Martin, P. J.
    At the trial the plaintiff and his sister testified as to a continuous condition of injury to plaintiff’s hand and arm, extending many months after the assault. The assault-took place in November, 1899.
    Dr. F. S. Angeny, called by the plaintiff, was asked this question :
    “ Q. For what did you treat Miss Cridland at that time in May, 1900 ? ■
    Objected to.
    Mr. Newlin : I offer to show that in May, 1900, the witness began attending the plaintiff for the condition of her hand and arm, which she told him was brought about in the way she has detailed to this jury, and to show the condition has been a continuous condition of her hand and arm.
    Objected to unless there is some connection between the time of her injury and the time she was treated by Dr. Angeny.
    Mr. Newlin : I offer to show .that this physician treated her for the condition which she has described in this trial.

      June 2, 1908 :
    Objected to. Objection sustained. Exception for plaintiff. [1]
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions, and (2) portion of charge quoted in the opinion of the Supreme Court.

      James W. M. Newlin, for appellant.

      Joseph Hill Brinton, for appellee.
   Opinion by

Mr. Justice Potter,

In the first assignment of error in this case, counsel for appellant complains of the exclusion by the trial judge of certain testimony of a physician. The offer was to show the condition of plaintiff’s hand and arm Avhen the witness began attending her in May, 1900, six months after the injuries were alleged to have been inflicted, and that he then treated her for the condition which she described on the trial. Plaintiff had testified as to the injury to her hand and arm inflicted by the deputy sheriff, and that the witness, Dr. Angeny, whose testimony was offered, had treated her for it, within a month after the occurrence; and that the effects of the injury had continued up to the time of the trial, and that she still suffered from it. She was corroborated in this statement by the testimony of her sister. If the evidence of the plaintiff and her sister was believed, it was sufficient to show a continuous condition of injury lasting until long after May, 1900, and the testimony of Dr. Angeny should therefore have been admitted. If plaintiff was injured as she claimed, by the use of unnecessary and excessive force, by the deputy sheriff, she had the right to show the extent and character of the injury, and the evidence of the doctor might have been of material value in this respect to the plaintiff. The trial judge would of course have cautioned the jury in his charge, that they must be satisfied from the evidence that the- injured condition of plaintiff when she was treated by Dr. Angeny was connected with, and resulted from, the injury inflicted in the previous November by the deputy, sheriff. But subject to this caution and control by the court, we think the testimony offered should have been admitted.

The second assignment of error relates to the comment of the trial judge upon the actions of the plaintiff and her sister, while in the court room, but not while' they were upon the witness stand. In his charge to the jury, he used this language of which complaint is made: “ The conduct you saw displayed here in the court room by the plaintiff and her sister may throw some light on the subject; their attitude toward the doctor when a witness upon the stand, and their ungoverned and hysterical conduct when his testimony did not please them — this exhibition may aid you in determining whether or not the story of Scarlett, Moore and the policeman is true and whether this excitable temperament was not in a measure the cause of the trouble.” The record does not show just what the occurrence was to which the court referred, but it appears from the statements of counsel, to have been a violent and hysterical outbreak of some kind, which created an unpleasant impression. In thus commenting upon the conduct of the witnesses, when they were not upon the stand, we think the trial judge went too far. He was not justified in asking the jury to compare their conduct in the court room with what it was said to have been at the time of the alleged assault. The circumstances were entirely different, and as to the latter, the facts were directly in dispute. The suggestion of the court put into the case a question of excitable temperament on the part of the plaintiff, and invited the jury to conjecture as to effect of that at the former occasion, instead of confining them to the evidence. Plaintiff charged her excitability in part to the effect of the injury in question; and yet the jury were asked to regard her excitable temperament at the time of the trial, and were permitted to infer from that, her condition several years before. Great latitude is properly given to the trial judge in commenting upon the evidence; but it is going too far to comment upon the conduct of a witness while not upon the stand. If a witness shows bias, feeling or partiality upon the stand, it may very properly be commented upon by the court as affecting credibility. But’ the demeanor or conduct of the witness while not upon the stand is no part of the evidence in the case. It is easily conceivable that various unusual circumstances may arise during the course of a trial, and that under the stress of excitement, personal peculiarities may lead to the doing of things in a court room of which no notice should be taken in the orderly administration of justice. The jury should not be instructed to consider, in arriving at a verdict, anything but the law and the evidence in the case.

The first and second assignments'of error are sustained, and the judgment is reversed with a venire facias de novo.


text:
    Schrager v. Cool, Appellant.

      Statute of frauds — Trusts and trustees — Resulting trust — Parol proof— Evidence — Principal and agent — Agent taking title in his own name.

    The facts, which if admitted, will give rise to an implied or resulting trust, may be proved orally; otherwise the exception of those trusts from the statute of frauds would be inoperative.
    A trust will spring from the fraud practiced where one employed to negotiate for another takes advantage of the opportunity to obtain a conveyance to himself.
    Where an agent to buy land uses his own money to complete the purchase, the transaction will be regarded as a loan to the principal. Nor does the fact that he pays in full out of his own funds necessarily exclude the operation of the principle.
    Where an agent agrees to purchase land for his principal, but in violation of his duty takes the title in his own name, paying a part of the purchase money out of his own funds, and thereafter sells the land at a profit, the agent can only retain from the amount received by him his expenses, commissions and advances, and if he refuses to account for the balance the principal may maintain an action of assumpsit to recover it, and in such action may prove the contract by parol evidence. Such an action is not for land nor does it involve title to land and the statute of frauds does not apply; and even as against an agent the statute of frauds would not prevent a recovery.
    Argued April 14, 1908.
    Appeal, No. 16, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1905, No. 1,101, on verdict for plaintiff in case of Leon Schrager v. James Cool.
    Before Mitchell, C. J., Pell, ' Mestrezat, Potter and Stewart, JJ.
    Affirmed.

      Assumpsit to recover a balance alleged tó be .due from, an agent’s principal. Before Fuller, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [Now, summing it all up down to this point, gentlemen of the jury, if you believe the testimony of the plaintiff assisted by the corroborations which you believe it has received from other credible testimony in the case, you may find that substantially the contract averred in the declaration ,has been proven, namely, an agreement by the defendant to buy for the plaintiff these properties, borrow the necessary money, and take in compensation the sum of $150, with interest and expenses.] [1]
    [Now, on the question of law. There is what we call the statute of frauds, of which you have heard.. It is a statute which provides, in substance, so far as it bears upon this case, that contracts in relation to land must be in writing; that written title to lands, or written ownership of lands, cannot be affected or defeated, as a general legal proposition under this statute, by verbal testimony, by anything short of a writing. That statute has not been specifically mentioned in the argument here, but as we are requested to give you certain binding instructions upon the legal aspects of the case, it is proper for me to say that the statute of frauds, the statute to which I refer, is no bar to the plaintiff’s recovery in this action, if you find the contract as he has asserted it to be.] [2]
    [The suit is not for land, it does not involve land, but it is for the profits made by the sale of land, derived from the sale of land which the defendant undertook, if - you so find, to buy and to dispose of, and the defendant cannot avail himself of the statute of frauds, if you believe the plaintiff, for two reasons. In the first place, if you believe that the $4,800, paid to the association in New York for this property, was derived, $100 from money advanced by the plaintiff although subsequently the balance was returned, $81.00, and that $4,700 of it was advanced or put into the transaction by the de-fendant under the contract or arrangement asserted by the plaintiff, there would probably be in law what is denominated a resulting trust, that is, the assignment of this sheriff’s deed

      June 2, 1908 ;
    Charge of Court — Opinion of the Court. [221 Pa. to the defendant would not make him the real owner, but only make him the trustee of the legal title for the plaintiff, charged, however, as between the parties, with the amount of his advances. That is a well-recognized legal proposition to protect both parties, the defendant in his advances and the plaintiff in his real ownership of the property.] [3]
    [Again, independent of any resulting trust and independent of any technical relation between the parties of trustee and cestui que trust, and whether the transaction constituted the plaintiff the technical legal or equitable owner' or not, if you believe the advancing of the money by the defendant was part of an arrangement between the parties to do what was done for the benefit of the plaintiff, allowing the defendant compensation $150, and interest, and expenses, then the plaintiff, notwithstanding the statute of frauds, might be entitled to a verdict.] [4]
    Yerdict and judgment for plaintiff for $1,616.14. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      George H. Troutman, with him George J. Llewellyn and T. J. Ohase, for appellant,
    cited: Bryan v. Douds, 213 Pa. 221; Barnet v. Dougherty, 32 Pa. 371; McCloskey v. McCloskey, 205 Pa. 491; Dollar Savings Bank v. Bennett, 76 Pa. 402.

      T. R. Martin, with him Rush Trescott, for appellee, cited:
    Squires’s App., 70 Pa. 266 ; Grove v. Kase, 195 Pa. 325 ; Welford v. Herrington, 74 Pa. 311; McDonough v. O’Niel, 113 Mass. 92; Bryan v. Douds, 213 Pa. 221; Barnet v. Dougherty, 32 Pa. 371; Cross’s App., 97 Pa. 471; Benjamin v. Zell, 100 Pa. 33; Everhart’s App., 106 Pa. 349; Moran v. Munhall, 204 Pa. 242.
   Opinion by

Mr. Justice Fell,

The assignments of error to be considered relate to the effect of the statute of frauds on the contract on which a recovery was allowed. The facts as established by the verdict are as follows: The plaintiff employed the defendant, a real estate, agent, to purchase land for him and to obtain a loan to be secured on it and used in part payment of the purchase price; the defendant was to be repaid all expenses incurred by him in attending to the business and a commission for his services. The defendant in violation of his duty purchased the land in his own name but made the first payment, when the contract was signed, with money received from the plaintiff for that purpose. When the plaintiff learned that the defendant was named as purchaser in the contract, he was led to acquiesce because of the defendant’s assurance that he would advance the balance of the purchase money and that if he held the title the expense of preparing and recording a mortgage would be saved. The land was sold through the agency of the defendant at a profit, and during the negotiations for its sale the plaintiff was always treated as the owner and consulted at every step. The defendant refused to pay the balance of the purchase price received by him after deducting his expenses, commissions and advances, but tendered the .plaintiff a part thereof in settlement.

Facts, which if admitted would givé rise to an implied or resulting trust, may be proved orally; otherwise the exception of those trusts from the statute of frauds would be inoperative. A trust will spring from the fraud practiced where one employed to negotiate for another takes advantage of the opportunity to obtain a conveyance to himself. Whether in this case the acquiescence of the plaintiff in the taking of title by the defendant left him anything to rely upon except an unwritten promise to hold the land for him need not be considered, for a trust also arose from the payment of the purchase money, which could be established by parol evidence. Where an agent to buy land uses his own money to complete the purchase, the transaction will be regarded as a loan to the principal. Nor does the fact that he pays in full out of his own funds necessarily exclude the operation of the principle: Notes to Dyer v. Dyer, 1 Leading Oases in Equity, *203.

The verdict should be sustained also on the ground taken by the learned judge in submitting the case to the jury, that .the action was not for land, and did not involve the title to land, but was for profits made by the sale of land, which, were in. the hands of the defendant. If he was an agent, the statute of frauds would not prevent a recovery under Benjamin v. Zell, 100 Pa. 33; Everhart’s Appeal, 106 Pa. 349; Howell v. Kelly, 149 Pa. 473.

The judgment is affirmed.


text:
    Lenahan v. Pittston Coal Mining Company, Appellant.

      Negligence — Evidence—Employers’ liability company — Insurance—Attorney at law — Credibility of witness — Cross-examination.
    The fact that the defendant' in an action for personal injuries is insured in an employers’ liability company, has not the slightest bearing on the issue. It is an irrelevant fact, prejudicial to the defendant, and its introduction by the plaintiff, whether by testimony offered by him, by statements of his counsel, by offers of proofs or by questions asked witnesses or jurors under the pretense of disclosing interest or bias is ground for reversal.
    Where a defendant in an accident case calls his own attorney to discredit one of plaintiff’s witnesses, and the attorney testifies in his examination in chief that he is the attorney for the defendant, he may be asked on cross-examination whether he is not also the attorney for an employers’ liability company which had insured the defendant against loss from accidents to its employees.
    It is always the right of a party against whom a witness is called to show by cross-examination that he has an interest direct or collateral in the result of the trial or that he has a relation to the party from which bias would naturally arise. Such an examination goes to the credibility of the witness. The right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party. This chance the party takes when he calls the witness.
    Argued April 15, 1908.
    Appeal, No. 61, Jan. T., 1908, by defendant, from judgment of O. P. Luzerne Co., Oct. T., 1904, No. 774, on verdict for plaintiff in case of Margaret Lenahan v. The Pittston Coal Mining Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s minor son. Before IIalset, J.
    At the trial Lawrence B. Jones, one of the counsel for the defendant, was called to discredit a witness for plaintiff. In his examination in chief he testified that he was an attorney for the defendant. On cross-examination he was asked this question:
    “ Q. You represent a surety company ? ”
    Defendant’s Counsel: State what you propose to prove.
    Plaintiff’s Counsel: It is not usual on cross-examination to make an offer of testimony. We have a right to ask questions of this witness, and if they are improper they are ruled out.
    Defendant’s Counsel: I know the object of this testimony and think it is entirely fair that an offer be made.
    The Court: It is only on direct examination that offers are made. You have the right to object to any question.
    Defendant’s Counsel: I object to the question as not cross-examination, immaterial and irrelevant.
    The Court: I will take the testimony. Objection overruled, exception noted, bill-sealed for the defendant. [1]
    “ Q. You represent a surety company which has this defendant coal company insured against accidents of this kind ? A. What do you mean by representing. Q. As counsel — as agent or counsel? A. I am not agent for this company. Q. As counsel? A. I was employed by a casualty company to 'appear as counsel for the defendant in this case, is that what you mean. Q. What casualty company is that ? ”
    .Defendant’s Counsel: Objected to as immaterial and irrelevant.
    The Court: We will take it. Objection overruled, exception noted for the defendant, bill sealed. [2]
    “ A. The Pennsylvania Casualty Company of Scranton. Q. And that company has this defendant, the Pittston Coal Mining Company, insured against accidents such as befell young Munley ? ”
    Defendant Counsel: We object.
    “ A. I think so.”
    Defendant’s Counsel: We object and ask that a juror be withdrawn. It is an improper remark by counsel in presence of this jury.
    The Court: Objection overruled, exception noted, bill sealed for the defendant. [3]
    Yerdict and judgment for plaintiff for $1,589. Defendant appealed.

      June 2, 1908:

      Errors assigned were (1,' 3) rulings on evidence, quoting the bill of exceptions. . ■

      Benjamin R. Jones, with him Lawrence B. Jones, for appellant.
    The Cross-examination was improper: Walsh v. Wilkes-Barre, 215 Pa. 226; Wagner v. Hazle Twp., 215 Pa. 219; Stratton v. Lumber Co., 39 Wash. 323 (81 Pac. Repr. 831); Manigold v. Traction Co., 81 App. Div. (N. Y.). 381.

      Edward A. Lynch and Thos. F. Farrell, with them Joseph H. Finn, for appellee.
    A party has the right on cross-examination to ask questions which will show the interest of the witness, if any, in the matter at issue: Ott v. Houghton, 30 Pa. 451; Huoncker v. Merkey, 102 Pa. 462 ; Com. v. Farrell, 187 Pa. 408 ; Com. v. Wright, 7 York, 62.
    It is always competent for a party against whom a witness is called and gives evidence, to propound such questions- on cross-examination as may tend to show the witness’s favor or bias toward the party calling him, if there is reason, to believe that any such exists : Batdorff v. Bank, 61 Pa. 179; Cameron v. Montgomery, 13 S. & R. 128; Fitzpatrick v. Riley, 163 Pa. 65 ; Com. v. Bell, 4 Pa. Superior Ct. 187 :
   Opinion by

Mr. Justice Fell,

This action was by a parent to recover for the death of a minor son who was killed at the defendant’s colliery. The testimony of the witness for the plaintiff at the trial was.admittedly -in conflict with his testimony at the coroner’s inquest and with statements made by him at other times. Because of the defective memory of the witness or his desíré not to expose himself to a prosecution for perjury based on his admissions, the defense was unable on cross-examination to prove by him that he had made certain statements in regard to the accident that were in conflict with his-testimony at the trial. ’ To discredit the witness by proof of. conflicting state-. ments, one of the defendant’s attorneys engaged in the,trial was called by it; He testified that he was attorney for the defendant, that he had attended the inquest and taken notes-of the 'testimony of the witnesses, and he stated what the plain-tiff’s witness had testified to before the coroner and what. he had told him at other times. On cross-examination of this witness he was asked whether he represented as attorney a company that had insured the defendant against loss from accidents to its employees. The allowance of this question and other questions of the same import is the error alleged in the assignments.

The fact that the defendant in an action for personal injuries is insured in an employers’ liability company has not the slightest bearing on the issue. It is an irrelevant fact prejudicial to the defendant and its introduction by the plaintiff, whether by testimony offered by him, by statements of this counsel, by offers of proofs or by questions asked witnesses or jurors under the pretense of disclosing interest or bias, is ground for reversal: Walsh v. Wilkes-Barre, 215 Pa. 226; Hollis v. Glass Co., 220 Pa. 49. The rulings of these cases will be strictly'adhered to and rigidly enforced, and no evasion or circumvention of them by indirection will be tolerated. But in applying them regard must be had to the undoubted right of the plaintiff to cross-examine a witness for the defendant to show his interest or bias.' It is always the rightof a party against whom a witness is called to show by cross-examination that _he has an interest direct or collateral in the result of the trial or that he has a relation to the party from which bias would naturally arise. Such an examination goes to the credibility of the witness: Ott v. Houghton, 30 Pa. 451; Batdorff v. Bank, 61 Pa. 179. The right is not to be denied or abridged because incidentally facts may be¡ developed that are irrelevant to. the issue and prejudicial to the other party. This chance the party takes when he calls the witness.

The defendant’s witness in his examination in chief had testified that he was attorney for it. This was but a partial disclosure of facts that might create a bias and it was competent for the plaintiff to show the full extent of the witness’s relation to the parties in interest in defending the action. The defendant opened the door for this inquiry and as long as it was conducted in good faith for a legitimate purpose, the plaintiff was within his rights.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Ott v. Seward, Appellant.

      Promissory notes — Accommodation indorsers — Defense—Notice.
    In an action by the holders of a promissory note against an indorser, the latter cannot set up as a defense to the action, that a person representing the maker of the note had told him that the plaintiffs had requested his indorsement as an accommodation to them, where there is nothing whatever to show that the defendant was requested by the plaintiffs themselves to become an accommodation indorser for them, or that he was ever accepted as such by them, and there is nothing’to show that the person making the alleged statement was acting for the plaintiffs or that such statement had ever been communicated to them.
    Argued April 21, 1908.
    Appeal, No. 124, Jan. T., 1908, by-defendant, from judgment of C. P. Blair Co., Oct. T., 1906, No. 161, on verdict for plaintiffs in case of David' Ott and George Ellenberger, trading as David Ott & Company, v. O. L. Seward.
    Before Mitchell, O. J., Fell, Brown, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit on. promissory notes.
    One of the notes was in the following form:
    “ $1,000. September 29, 1906.
    “ Two months after date, we .promise .... to pay to the order of J. T. Flourney ..... Four Thousand.......Dollars at Union National Bank........ without defalcation for value received.
    “ Island Park Association,
    “ Per J. O. Rauch, President.
    “ Attest:
    “ Jno.- T. Flourney,
    “ Secretary.
    (Indorsements.)
    “J. T. Flourney,
    “O. L. Seward,
    “ C. A. Hargraves,
    “.J. O. Rauch,
    “David Ott & Co.”

      June 2, 1908:
    The defense set up is stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiffs for $4,284. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas H. Greevy, with him E. G. Brotherlin, for appellant.
    It is permissible to show by parol evidence the actual relation existing between parties to a note, whether as drawers, payees or indorsers, so long as it remains in the hands of the original parties: Leech v. Hill, 4 Watts, 448; Barto v. Schmeck, 28 Pa. 447.
    The contract of indorsement is not subject to the rule which excludes proof to vary the terms of an express contract: Ross v. Espy, 66 Pa. 481; Breneman v. Furniss, 90 Pa. 186.
    Paper indorsed for the accommodation of a party so as to assist the party in raising money upon it cannot be enforced against the accommodating party while it still remains in the hands of the party accommodated: Story on Promissory Notes, sec. 190 ; Daniels on Negotiable Instruments, sec. 189 ; Byles on Bills, Wood, ed. 1891, p. 223 ; 2 Am. & Eng. Ency. of Law, 364; Thompson v. Clubley, I. M. & W. 212; Patten v. Pearson, 55 Me. 39 ; Larned v. Ogilby, 20 Iowa, 410; Moore v. Baird, 30 Pa. 138 ; Philler v. Patterson, 168 Pa. 468 ; Bower v. Hastings, 36 Pa. 285 ; Small v. Smith, 1 Denio, 583.

      R. A. Henderson, with him Charles O. Greer, for appellees.
    The defendant was in nowise an accommodation indorser for anyone on the note in question : Lord v. Ocean Bank, 20 Pa. 384; Smith v. Hine, 179 Pa. 260; Cornwall v. Gould, 21 Mass. 444.
   Opinion by

Mr. Justice Brown,

This is an appeal from one of two judgments against appellant as an indorser on two promissory notes of the Island Park Association held by the appellees. The defense set up in each suit was that the appellant was a mere accommodation indorser for the holders of the notes. Under facts which were undisputed the trial judge instructed the jury that the defense was unavailing and directed verdicts for the plaintiffs, upon which judgments were subsequently entered. By agreement of counsel the disposition of this appeal is to be regarded as disposing of the other, the facts in each case being identical. '

No material fact upon which the appellees rely is disputed, and the defense that the appellant was a mere accommodation indorser for them, to enable .them to raise money on the notes, is absolutely barren of merit. Professional zeal hardly excuses the attempt to make it. Some time in March, 1906, the appellees, lumber déalers, agreed to furnish lumber to the Island Park Association for the construction of a hotel and other buildings upon its grounds in Somerset county. J. O. Rauch, J. T. Plourney and O. L. Seward, the appellant, were three of its directors, and respectively its president, secretary and treasurer. Before furnishing any lumber to the association the appellees took from these three men in their individual capacity an agreement, under seal, dated March 27, 1906, in which they obligated themselves, “ jointly and severally, to pay the said David Ott & Company the full amount of the purchase price of said lumber, approximating four thousand dollars, within four months after the date hereof, in the event the said amount is not paid in full by the said Island Park Association.” Later on the association asked for more .lumber, and, the appellees having asked for additional protection, the •same obligors, on April 27, 1906, executed another agreement, obligating themselves, jointly and severally, to pay the appellees, within four months from that date, the full amount of the purchase price of the mill work, lumber and building supplies furnished by them to the association. When it was pressed by the appellees for the payment of their bill, O. A. Hargraves, its general manager, told them the only way they could be helped would be by a note. The appellees agreed to accept it, if assured that it would be taken care of when due. In pursuance of this, two notes of the association were given to them, each dated September 29, 1906, one for $4,000, payable two months after date, the other for $5,000, payable in one month. Each note was made payable to the order of J. T. ■Flourney and by him indorsed. Following his indorsement were those of Seward, Hargraves and Rauch. The notes, having been indorsed by the appellees, were discounted by a bank and the proceeds placed to their credit. They were not paid at maturity, and, after protest and due notice thereof to the prior indorsers, were taken up by the appellees.- This suit against Seward followed.

The only attempt made by the appellant to show that he had become an indorser for the accommodation of the appellees was his testimony as to what took place between him and Hargraves when the latter procured his indorsement. Whatever may have taken place between them at that time could not have affected the appellees, unless apprised of it, or Hargraves was acting for them and not for the association. ■ He was not acting for the appellees, and there was no offer to show that what -was alleged to have taken place between him and Seward was ever communicated to them. The court ought, therefore, to have sustained the objection made to the offer to prove by Seward that when he indorsed the note he did so because Hargraves told him the appellees had requested his indorsement as an accommodation to them to enable them to get money out of bank. Though the offer was improperly admitted nothing was proved under it to help the appellant, for Hargraves was not called to testify that what he is alleged to have told Seward was true. Each of the appellees testified that it was not. They knew absolutely nothing as to how the indorsement was procured. They only knew that the notes were brought to them by the general manager of the association after they had pressed him for payment, bearing the absolute indorsements of responsible men, and these the very men who, by their agreement of April 27, 1906, had assumed the payment of the bill if the association should not pay it. They were not merely guarantors but absolute sureties to the appellees. If, instead of suing Seward on his indorsement, they had sued him on his obligation to pay their whole bill, nothing shown in this suit would have availed him as a defense. The situation as to this feature of the case is summed up in a sentence in the charge of the court: “When the note was brought back to them, and they had no knowledge of his restrictive’ indorsement, that he put any restrictions about it, they had a perfect right to take it, because they were only getting their due, and Mr. Seward was not increasing his legal liability, because he was already legally liable to pay this particular debt, and in that view of it I do not see that Mr. Seward has any defense.” But without regard to the liability assumed by the appellant on the agreement of April 27, 1906, there is nothing to show that-he was requested by the appellees to become an accommodation indorser for them, or that he was ever accepted as such by them.

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


author: Mr. Justice Elkin,

text:
    James, Appellant, v. Penn Tanning Company.

      Contract — Written contract — Vagueness of terms — Unenforceable memorandum.

    A memorandum in writing relating to a sale or exchange of bark or timber, is not enforceable as a contract, where it appears that no parties are mentioned in the writing on which it is to be binding, that no time is stated for the beginning or ending of the alleged contract, that there is no definite area of land described from which timber is to be taken, nor any fixed amount of bark to be delivered for purposes of exchange, that the paper does not show that the minds of the parties ever came together on any specific thing, and that evidence apart from the paper shows that the memorandum was intended merely as the basis upon which to make a formal contract.
    Argued May 4, 1908.
    Appeal, No. 319, Jan. T., 1907, by plaintiffs, from judgment of C. P. Warren Co., June T., 1904, No. 18, on verdict for plaintiffs in case of H. J. James and T. S. James, trading as James Brothers now for use of James Brothers Lumber Company, v. Penn Tanning Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on an alleged contract.
    The writing or memorandum in controversy was in the following form:
    “H J James of James Bros was here on Jay 21, ’95 I told him that we would pay 5.75 pr 2200 lbs for Bark Loaded on P & W Jo Jo Jnct fr 1895 Peeling Somewhere about 3000 to 4000 Cord that we would pay them 4.00 pr Cord & the timber from a Cord of Bark Bark Del Same place or 4.50 & the timber from a Cord of Bark delivered on the TTEE and take no timber than what is on the Crawford Lands and that we would not peel until 4 years from now when we could commence peeling at the rate of 3000 to 4000 Cords pr year. All Deliveries of bark to be in the Summer option with us peel Sooner than four years the James Bros are to take this proposition into Consideration.
    “ Agred upon 3-29-95.” - ,
    Lindset, P. J., charged as follows:
    This action is brought by the plaintiffs, H. J. James and T. S. James, former partners doing business as James Brothers now for the use of James Brothers Lumber Company, a corporation organized under the laws of Pennsylvania, against the Penn Tanning Company, for the purpose of recovering alleged damages for what the plaintiffs claim is a breach of contract, and also to recover a balance which the plaintiffs claim to be due them for hemlock bark which the plaintiffs delivered to the defendant.
    The alleged contract on the part of the plaintiffs, that is, the terms of the alleged contract, was first talked about on January 21, 1895, according to the evidence of the plaintiffs. It was either on that date or January 22, and Mr. H. J. James states that he went to Sheffield and in the office of the Penn Tanning Company he had a talk with Mr. Jerry Crary, the president of the Penn Tanning Company. Mr. James states that their talk and negotiations resulted in coming to terms in relation to the plaintiffs delivering a certain quantity of bark to the defendant, and the price was agreed upon, Mr. James stated, for which Mr. Crary, as president of the Penn Tanning Company, was to cut and peel the bark on a quantity of timber which was then standing and growing upon lands called the Crawford lands. And according to the terms, which Mr. James stated was agreed upon between himself and Mr. Crary, Mr. Crary was to pay $4.00 per cord in cash for the bark which Mr. James was to deliver at a station called Jo Jo on the P. & W. P. P., and was to credit the plaintiff with $1.50 per cord on the timber which was to be delivered from the Crawford property to the plaintiffs, and he was to pay. $4.50 per cord for bark delivered on the T. & V. R. R., and credit $1.50 on the timber to be delivered from the Crawford property.
    Now Mr. James states that Mr. Crary made a memorandum of this understanding between them, that it was talked over, but Mr. James states that he did not want to agree to it positively until he had consulted his partner; He went home and consulted his partner and claims that he and his partner came back on March 29, 1895, and that they had further talk about it, and that a copy was made, Mr. James stated,, of the memorandum which Mr. Crary had made, which copy is produced in evidence in this case.;
    Now it is alleged on the part of the plaintiffs that the negotiation there had constituted an agreement between the plaintiffs and defendant .in relation to this bark and timber, and in accordance with the terms of the memorandum which has been given in evidence.
    [We say to you, gentlemen of .the jury, that Mr. Crary, as president of the Penn Tanning Company, did not have authority in our. opinion, to bind the Penn .Tanning Company in a contract for the property mentioned in this memorandum and property in question here.] [1]
    ■ It is claimed also on the part of the plaintiffs that if this contract ivas not binding between the parties because of a lack of authority on the part of the president, Mr. Crary, to make such a contract, without the consent or direction of the board of directors of the Penn Tanning Company, that it was ratified afterwards. And they have introduced testimony which they claim is sufficient to show a ratification on the part of the defendant corporation. ,
    [We feel bound to say.to you that, in our judgment, the evidence is not sufficient to show a ratification, and is not sufficient, in our judgment, to submit to the jury of the ratification. And, without now entering into the evidence to point out the lack of testimony, we so instruct you. ' And we say to you that there was no valid contract in our judgment made between the parties there which would entitle the plaintiffs to recover, damages; and the plaintiffs have not shown evidence sufficient to submit to the jury of a ratification of any contract.] [2]

      But the evidence shows that the plaintiffs have delivered a large quantity of bark which the defendant company has hadi the benefit of and the use of, and in our opinion the defendant is bound to pay for the amount of bark, if the defendant has not already done so, and to pay for it according to.the price named in this memorandum. We think that the question was talked over between the plaintiffs, the two brothers — J ames Brothers — and Mr. Crary, the president of the Penn Tanning Company, and these prices named in the memorandum were settled upon as the prices; whether or not it was a contract made between them in view of the fact that the matter was not put in writing in accordance with what some of the evidence shows — I think Mr. James himself testified that it was to be put in writing — irrespective of that we think that the prices were settled upon in such a way that the Penn Tanning Company ought to pay for the bark received and which the defendant received the benefit of, in accordance -with these prices.
    [The plaintiffs claim in their statement of claim a balance of $4,321.07 due them on the amount of bark which they have delivered to the defendant. And we say. to you on this branch of the case the plaintiffs are entitled to recover. This amount is not disputed by the defendant. There is no dispute in the testimony relating to this part of the plaintiffs’ claim, and, therefore, the plaintiffs will be entitled to your verdict for that amount, with interest from the date of bringing of this suit.] [3, 4]
    The interest has been figured and added to the amount which I gave you, and it amounts to $4,969.15 and the clerk will take your verdict for that amount.
    Yerdict and judgment for plaintiffs for $4,969.13, for the amount of bark actually delivered. ■ Plaintiffs appealed.-

      Errors assigned were (1-4) above instructions,-quoting them.,

      Alex. Simpson, Jr., with him II. E. Eish,. I). I. Ball and J. E. Mullin, for appellants.
    Having. for years -received- the-., benefit of the contract, defendant cannot now be -permitted to repudiate it, when by the changes in market valuesjt has become onerous: Penna. Nat. Gas Co. v. Cook, 123 Pa. 170 ; Manhattan Hardware Co. v. Phalen, 128 Pa. 110; Bucklin v. Davidson, 155 Pa. 362.
    June 2, 1908:

      John G. Johnson, with him C. U. McCauley and Hinckley, Rice <& Alexander, for appellee.
    The defendant contends that there never was any agreement between the plaintiffs and the defendant company, or with Jerry Crary, individually or as president of the Penn Tanning Company : Brown v. Finney, 53 Pa. 373 ; Maitland v. Wilcox, 17 Pa. 231; Sparks v. Pittsburg Co., 159 Pa. 295; Leskie v. Haseltine, 155 Pa. 98.
   Opinion by

Mr. Justice Elkin,

This is an action of assumpsit to recover for the breach of an alleged contract for the sale or exchange of hemlock timber and bark. The defendant corporation is extensively engaged in the operation of tanneries, ánd the legal plaintiffs were, and the use plaintiff is, engaged in the lumber business. The tanning company needed bark and the lumber people wanted to sell bark, and perhaps purchase timber. This was the situation of the parties at the time negotiations began about the subject-matter of this controversy. Crary was the president of the Penn Tanning Company and had the general management of its business at the time the alleged contract was entered into. In the first clause of the amended statement of claim, it is averred that the defendant on or.about March 29, 1895, entered into an agreement with the James Brothers whereby defendant agreed to cut, fell and peel the hemlock trees upon what was known as the Crawford lands, containing about 4,700 acres, and to exchange the timber and logs taken therefrom suitable for sawing, for hemlock bark to be delivered by the James Brothers, at the price and upon the conditions agreed upon between the parties as to amounts and deliveries. At the trial the burden was on the plaintiff, first, to establish a valid contract, then to prove performance, or proffer to perform, and still further to show refusal on the part of defendant to perform amounting to a breach. The plaintiff undertook to meet the burden resting on it by offering in evidence a memorandum made by Crary on January 21, 1895, upon which'were indorsed in the handwriting of James these Words : “ Agreed upon 3-29-95.” The memorandum was not signed by Crary, or James, nor did it contain any mention of the Penn Tanning Company, nor did it purport to be, at the time of making, an executed contract on the part of anyone. It is not pretended that any officer, authorized to do so, had at any time formally executed the alleged contract in the name of the Penn Tanning Company, or indeed that any perspn, either as an officer of the corporation or as an individual, had executed the memorandum of agreement by signing his name. The memorandum, the very foundation upon which the right to recover depends, and without which there can be no recovery in this case, does not contain the name of the defendant corporation, was not executed by any officer of the tanning company, either with or without authority as and for its corporate act and deed, or indeed in any other manner, nor was anything done up to the time when it is asserted there was an acceptance to show on its face that the tanning company was in any manner connected with it, unless such connection should be inferred from the fact that it had to do with hemlock bark and trees. It is apparent the memorandum was very hastily drawn. Its meaning is, to say the least, doubtful, and if there are mutual covenants, against whom are they to be enforced ? This cannot be determined from the writing. "What do they mean ? This is uncertain. IIow much bark was to be delivered on one side, and how many trees or how much timber on the other, is not stated, nor, in our opinion, can these material matters be determined with any legal certainty from the instrument relied on, considered in its parts or as a whole. After careful consideration, we have concluded the memorandum is too vague, indefinite and uncertain in its terms, to be specifically enforced, and that an action for an alleged breach cannot be sustained. In our opinion, there is no escape from this conclusion, and for the following reasons: First, no parties are mentioned in the agreement upon which it is to be binding. No individual, firm, partnership or corporation signed the agreement, nor does the memorandum itself, or the evidence produced at the trial, show that it was ever authorized to be executed. It never was finally executed by anyone. The memorandum begins with a declaration that a Mr. James was here on a certain date and that the writer had said to him, “ I told him that we would pay” certain prices. Who “I” was and wbo is meant by “we” is not explained in the writing, nor does anything appear on its face, which in any manner explains what parties are to be bound thereby, and certainly not the slightest reference is made to the appellee company. Second, no time is mentioned for the beginning or ending of the alleged contract, and nothing definite is provided as to the length of time during which the sale or exchange of hemlock timber for bark is to continue, unless, as is suggested, the duration of the contract is to be determined by the number of cords of bark produced, but the measurement of time by the cord is unknown to the calendar and is too indefinite in law to determine the legal rights of parties under the facts of the present case. Third, the subject-matter of the alleged agreement is indefinite and uncertain as to amounts and areas. There is no definite area of land described from which timber is to be taken, nor is there, any fixed amount of bark to be delivered for purposes of exchange. If the transaction amounted in contemplation of law to a sale of standing timber, not for immediate severance, then under the rule of all our cases, it would be real estate, and a bare reference to the Crawford lands would be insufficient in point of description to make a valid contract under the statute of frauds, but independently of this consideration, it cannot be, that a reference in the memorandum which says to “ take no timber than what is on the Crawford lands ” can be construed as a binding covenant to cut, fell and peel the hemlock timber on several thousand acres of land. The provision that no timber was to be included in the exchanges than such as should be taken from the Crawford lands does not mean that all the timber from all the Crawford lands must be so exchanged. What the parties evidently intended, and what was subsequently done, was that timber cut from the Crawford lands from time to time was. exchanged for bark delivered at various times as suited the purpose and convenience of the parties. The slight reference to the Crawford lands in the memorandum of agreement falls far short of an express covenant to sell or exchange all the trees on all of the tracts of land. Fourth, the memorandum does not show that the minds of the parties ever came together on any specific thing, and certainly it cannot be pretended that the Penn Tanning Company by any. corporate action authorized such an agreement in writing to be entered into. Indeed, the memorandum on its face, the subsequent correspondence between the parties,- and the proven facts clearly show that the parties intended a formal contract to be executed at a later date, which was never done. The memorandum relied on is lacking in aliinost all of the essential elements of a contract. It was not intended as an executed agreement, as clearly appears from letters which passed between the parties in November and •December, 1896, and in January, 1897, showing that almost two years after making the alleged agreement upon which appellant relies to recover, both parties had the understanding, aud so declared in writing, that the contract had never been executed. . This no doubt explains why the memorandum was so vague, indefinite and uncertain. It was intended as the basis upon which to make a formal contract in which the amount of bark to be furnished, and the extent of lands to be included, and other material matters, should be expressly stipulated. This was never done, and the understanding between the parties, whatever it was, can only legally be determined by the vague and indefinite writing set up in this case, and perhaps to some extent by what the parties did under it, but, in any event, the memorandum itself, or the acts of the parties under it, would not justify a court in holding as a matter of law that the.appellee had covenanted to sell, or exchange, all the hemlock timber on all the Crawford lands, or that it had agreed to accept an unlimited and indeterminate supply of bark from appellant, indefinite as to time of delivery and without reference to whether it was to be furnished from timber then owned by appellant or to include all that might be subsequently acquired. The letter of the lumber company addressed to the tanning company, dated August 4,1897, and the answer of the tanning' company of the same date, would seem to conclusively show that both parties understood their arrangement, whatever it was, only to apply to bark owned by the lumber company, and did not apply to such as might be purchased from other parties by appellant. From all these facts and circumstances, it seems perfectly clear that the parties never did finally execute a definite contract, nor was anything ever done to fix the amount of bark to be furnished on one side and timber on the other, nor was it ever determined to what exact areas the proposed agreement should apply, but, in the absence of an express contract, the parties, taking the memorandum as a basis as to prices and deliveries, proceeded to make exchanges of timber and bark for a period of years, expecting no doubt at some time to execute a contract fixing amounts and defining areas, which was never done, and the courts cannot do for them what they have failed to do for themselves.

From what has been hereinbefore said, it is clear that the judgment of the court below must be affirmed, and we do not deem it necessary to discuss the other assignments of error. But this must not be understood to mean that we disagree with the conclusion reached by the learned trial judge in the consideration of this case on other points. Independently of the question whether the president of the corporation could bind it under the facts of this case, or whether the alleged contract was subsequently ratified by the corporation, we hold that the memorandum of agreement is too vague, indefinite and uncertain to be enforced against the appellee company to the extent of compelling the sale or exchange of all the trees on all the tracts of land mentioned in the statement of claim, and since there was no obligation to sell or exchange all the trees or timber on all the lands, under the facts of this case there was no breach for which damages' can be recovered.

Judgment affirmed.