author: Per Curiam,

text:
    Jones, Appellant, v. Burnham.

      Negligence — Master and servant — Defective tool — Risk of employment.

    An employee who continues in an employment, which by reason of defective machinery or appliances he knows to be dangerous, assumes the risk of any accident that may result therefrom, with the qualification that if in pursuance of the promise of his employer to remedy the defect, and the risk be not such as to threaten immediate danger, the employee continue in the employment and be injured without fault on his part, the employer may be liable.
    An employee in a locomotive works used a hand tool called a “flatter” which he was in the habit of fixing when it needed repairs. The flatter was held like a hammer against metal to be shaped, and was struck with sledges weighing about thirteen or fourteen pounds. While the workman was holding the flatter a piece of steel flew off from a crack in it, and struck him in the eye. It appeared that prior to the accident plaintiff asked his superior for a new flatter, saying that the old one was worn, or a little cracked. The old flatter was not shown to the boss, nor did he promise to remedy the defect, but simply told the workman that it was good enough and to go ahead with it. Held, that the workman’s employer was not responsible for his injury.
    Argued Jan. 14, 1907.
    Appeal, No. 312, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1904, No. 491, for defendant non obstante veredicto in case of "William Jones v. George Burnham etal., trading as Burnliam, Williams & Co.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.
    At *the trial the jury returned a verdict in favor of the plaintiff for $5,500. On a motion for judgment non obstante veredicto Ralston, J., filed the following opinion :
    The plaintiff is a skilled workman, having followed the trade of blacksmith for eleven years. He went into the employ of defendants in July, 1903. On January 20, 1904, a chip flew off from a tool called a “ flatter,” with which he was working, entered his eye and destroyed the sight. Plaintiff was at this time twenty-six years of age. lie testified that if he wanted new tools he got them from Mr. Preisen, who was termed “ a contractor ” and was his immediate superior. One of the plaintiff’s helpers told him the flatter was cracked. Plaintiff asked Preisen for a new flatter. He replied, “ Go ahead and use it; I haven’t any more ; it is good enough; go ahead with it.” Plaintiff worked with the flatter for about an hour, the helpers striking it with sledges weighing about thirteen or fourteen pounds, when - the piece of steel flew off where it was cracked and struck him in the eye. On cross-examination, he said that he complained about the flatter because it was worn down and he needed a new one ; that it might be dangerous and might "break, and might not break at all; he thought there was a little danger there, but not that dangerous. He stated that he. would dress up a tool like this when it became worn by putting it in the lire and trimming it down.
    Diiffy, one of the plaintiff’s helpers, testifies that Jones asked Preisen for a flatter and said that one was a little bit cracked. Preisen said he had no more, to go on and work with it. It was not claimed that Preisen promised to remedy the defect.
    It appeared that a flatter isa hand tool consisting of a square piece of metal with a hole for the insertion of a handle; it is held like a hammer, with one side against the metal to be shaped, and upon the other side blows are struck with sledges. The plaintiff was in the habit of using this tool, and of fixing it up when repairs were required. According to his testimony, he did not tell Preisen that the flatter was cracked, but asked him for a new one because the old one was worn.
    The plaintiff was as good a judge of the safety of the tool as Preisen, and did not regard it as dangerous. It does not appear that the tool was shown to Preisen, or that he had an opportunity to discover that it was dangerous or unfit to use. It was the duty of the plaintiff to repair his tools, and thp only knowledge of the condition of the tool imputed to Preisen is that it was worn and a'little bit cracked.
    If there was any danger in using the tool, it must have been better known to the plaintiff than to anyone else. While the testimony of the plaintiff is that the chip flew off at the place where the flatter was cracked, there is no evidence that it flew off because of the crack, or that there was anything in the condition of the tool to indicate to an experienced observer that a chip was likely to fly off from it and do injury.
    In Lehman v. Carbon Steel Co., 204 Pa. 612, 614, Mr. Justice Fell said:
    “ The danger of the work was not mentioned and apparently not contemplated by anyone. If there was unusual danger it was manifest to the plaintiff, more manifest to him than to any other person.”
    There is no evidence of negligence on the part of the defendants, while if a defect of a dangerous character existed in the flatter it was one which the plaintiff observed and of which lie should have had intelligent knowledge and ability to estimate by reason of his experience and special training.
    April 1, 1907:
    A servant will be presumed to have notice of all risks, which to a person of his experience and understanding are or ought to be open and obvious: Railroad Company v. Keenan, 103 Pa. 124. “ He is not bound to risk his safety in the service of his master, and he may, if he thinks fit, decline to do that which exposes him to imminent peril: ” Rummell, Adm’r, v. Dilworth, 111 Pa. 343, 349.
    It was said by Mr. Justice Brown, in Talbot v. Sims, 213 Pa. 1, “ The oft-repeated rule as to this is, that an employee who continues in an employment, which by reason of defective machinery or appliances he knows to be dangerous, assumes the risk of any accident that may result therefrom, with the qualification that if in pursuance of the promise of his employer to remedy the defect, and the risk be not such as to threaten immediate danger, the employee continue in the employment and be injured without fault on his part, the employer may be liable.”
    The motion for judgment non obstante veredicto upon the whole record is allowed, and judgment is entered for defendants.

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

      Joseph W. Shannon, for appellant.
    The case was for the jury: Patterson v. P. & C. R. R. Co., 76 Pa. 389; Williams v. Clark, 204 Pa. 416; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Denning v. Midvale Steel Co., 192 Pa. 182; Madara v. Iron & Steel Co., 160 Pa. 109; Newton v. Vulcan Iron Works, 199 Pa. 646; Ross v. Walker, 139 Pa. 42; Rauch v. Smedley, 208 Pa. 175; Dalmas v. Kemble, 215 Pa. 410; Wagner v. Jayne Chemical Co., 147 Pa. 475.

      John 6. Johnson, with him James Wilson Bayard, for appellees.
   Per Curiam,

Judgment affirmed on the opinion of the court below entering judgment for defendant non obstante veredicto.


source: Caselaw Access Project

license: Public Domain

text:
    Hutchinson, Appellant, v. Dennis.

      Equity — Equity practice — Multifariousness■—Husband and wife.

    A bill in equity by a father against his children is bad for multifariousness, which prays (1) that money deposited in a saving fund in the name of complainant’s deceased wife should be declared in fact the property of the husband; (2) that certain real estate in the wife’s name should be declared in fact to be complainant’s by virtue of a resulting trust from the payment of the purchase money; and (3) that the conveyance of certain other real estate to his children should be rescinded on the ground that it was procured by undue advantage taken of his ignorance.
    Where a husband has taken out letters of administration on his deceased wife’s estate, and has taken possession of money deposited in a saving fund in the name of his wife, he cannot thereafter by a bill in equity against his children seek to have the ownership of such money established in himself. Having brought himself within the jurisdiction of the orphans’ court, he must have his title to the money adjudicated there.

      Ejectment — Rule to bring ejectment — Acts of May 25, 1893, P. L. 131 and June 10, 1893, P. L. 415.
    The Acts of May 25, 1893, P. L. 131 and June 10, 1893, P. L. 415, giving a right to a person in possession of real estate to compel one out of possession but claiming title, to bring an ejectment, are not exclusive of the remedy by a bill in equity.
    Where equity has jurisdiction, it is not taken away by a subsequent jurisdiction conferred on courts of law.
    Argued Jan. 15, 1907.
    Appeal, No. 198, Jan. T., 1906, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. T., 1905, No. 3,228, dismissing bill in equity in case of Thomas Hutchinson v. Hugh Dennis and Margaret Dennis, his wife, and James Hutchinson and Margaret Hutchinson, his wife, and the Colonial Trust Company.
    Before Mitchell, C. J., Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to determine title to moneys deposited in a saving fund, to declare a trust in real estate and to cancel deeds.
    The bill alleged:

      1. That plaintiff’s wife died in 1905, and Margaret Dennis and James Hutchinson are their children.
    2. Plaintiff can neither read nor write, and during his constant occupation earned considerable money, which he invested in real estate and deposited in the saving funds.
    That the money invested in the properties and deposited was the money of plaintiff.
    That plaintiff was always the owner of these properties; the deeds to two of them were in his wife’s name, although this was unknown to plaintiff.
    That the moneys in the saving funds were also that of the plaintiff, but were deposited in his wife’s name for convenience in making and withdrawing deposits.
    That these properties and deposits were not gifts to the wife.
    3. That plaintiff’s wife died intestate.

      4. That immediately after the death of his wife, plaintiff executed deeds conveying one property to his son and another to his daughter. These properties were originally in plaintiff’s name, and said deeds were executed by plaintiff in consequence of the solicitations and importunities of his children. Plaintiff was without legal advice and did not know that he was parting with his entire interest in said properties.
    5. Plaintiff was advised by his family that he must takeout administration on his wife’s estate, in order to withdraw the deposits from the saving funds, and was taken by his family to the register of wills and took out letters of administration and deposited the funds in the Colonial Trust Company. That he was without legal advice in this matter.
    6. Prays for reconveyance; that he is the owner of the money deposited, etc.
    The demurrer alleged:
    1. Plaintiff has remedy at law.
    2. The jurisdiction over deposits is in the orphans’ court exclusively.
    3. Plaintiff’s remedy to determine title to the properties in wife’s name is at law.

      4. The court cannot cancel deeds to the children.
    5. Bill is multifarious in joining distinct causes of action.
    The court entered a decree dismissing the bill for multifariousness.

      April 1, 1907:

      Error assigned was the decree of the court.

      Wm. H. Burnett, with him Wm. II. Wood, for appellant.

      Domiel A. Stetoart, with him Charles W. Freedley and Albert B. Wevmer, for appellees.
   Per Curiam,

The learned judge below rightly held that as to the money deposited in the saving funds in the name of the wife, the common pleas would have jurisdiction on a proper bill to determine that it was in fact the property of the husband. But the husband having taken out letters of administration on the wife’s estate and thereby possessed himself, “ got control ” of the money, he had brought himself within the jurisdiction of the orphans’ court and should have his title to the money adjudicated there.

The claim that the real estate in the wife’s name was in fact the complainant’s by virtue of a resulting trust from the payment of the purchase money, and his claim to rescind his conveyance of other real estate to his children as procured by undue advantage taken of his ignorance, were proper bases of equity jurisdiction. It does not appear that he was in actual possession, and therefore the acts of 1893 have no apparent application. But even if they were applicable the remedy under them would not be exclusive. Where equity has jurisdiction, it is not taken away by a subsequent jurisdiction conferred on courts of law.

But the two claims were essentially distinct and rested on different grounds. Each must be adjudicated on its own evidence without any reference to the other. The bill was multifarious in joining them, and the demurrer was properly sustained on that ground.

Decree affirmed.


text:
    Wood v. Praul, Appellant.

      Ejectment — Parol gift of land — Evidence.
    In an action of ejectment to recover land which the defendant claimed to hold as a gift from plaintiff’s testator, a verdict and judgment for plaintiff will be sustained where all that the evidence tended to show was a parol gift of land to the defendant unaccompanied by possession, that the testator lived in the house, paid the taxes and was in actual as well as legal possession.
    In such a case where the defendant claimed that she occupied the house as her own after the gift, and that testator merely lived with her, the opinions of neighbors as to who appeared to be the head of the house, is irrelevant gossip and properly excluded.
    Where one of defendants disclaimed title the verdict should be directed against her.
    Argued Jan. 16, 1907.
    Appeal, No. 207, Jan. T., 1906, by defendant, from judgment of C. P. No. 5, Phila, Co., Sept. T., 1904, No. 301, on verdict for plaintiff in case of Mary Emma Wood v. Catherine Praul and Maud R. Praul.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for a store and dwelling at Logan, Philadelphia.
    At the trial it appeared that prior to March 20, 1904, George R. lindes was the record owner of the property in question. He died on that date leaving a will by which he gave all the residue of his estate to his sister, the plaintiff. The defendant offered testimony which tended to show that she and her daughter, the other defendant, went to live with testator, who was her brother, in the year 1892, and that she lived with him until his death. She claimed that in 1892 he gave the property to her by parol gift, and that after the gift the testator lived with her.
    The court charged in part as follows:
    On March 14, 1888, George R. Landes became the owner of the property in question, it having been conveyed to him by deed. On March 20, 1904, George R. Landes died, leaving a will dated January 25, 1901, which contains the following clause:
    “ All the rest, residue and remainder of my estate, real, personal and mixed, of what kind or nature soever, and wheresoever, the same shall he at the time of my death, I give, devise and bequeath unto my beloved sister Mary Emma Wood, her heirs and assigns forever.”
    There is no specific disposition by the yfill of the property in question, and consequently, under the will, Mary Emma Wood, the plaintiff in this case, acquired the title to the property.
    [The defendants rely upon a verbal contract made between Catherine R. Praul and Mr. Landes, the testator, iff 1892, whereby he gave the property to Mrs. Praul. Maud R. Praul, the daughter of Catherine R. Praul, testified that Mr. Landes invited his sister, Mrs. Praul, to come to .live in the house, permitting her to run the shop on her own account and that she kept house for him. This witness was, at the time this happened, fourteen or fifteen years of age, and her testimony is not satisfactory as establishing the title of Catherine R. Praul.] [4]
    Catherine R. Praul came to the house with her daughter in 1892, and remained there until the testator’s death, and until the present time. The testator, however, had lived in the house for some years before 1892, and continued to live there until the time of his death.
    [In the opinion of the court, the defendants have not made out such a title as would justify or support a verdict in their favor; consequently, I instruct you to render a verdict for the plaintiff.] [5]
    The plaintiff is further entitled to recover mesne profits during the time that this defendant occupied the premises after the death of Mr. Landes. The defendant’s real estate expert testified that the value of the property was $25.00 a month, and the plaintiff is willing to accept that as the correct amount; consequently, you will render a verdict for the plaintiff and assess mesne profits at the rate of $25.00 a month.
    Maud R. Praul is not to be considered as having been in possession of the premises, as she was simply there with her mother. [You will render a verdict in favor of Maud R. Praul, the defendant, and against the other defendant, Catherine E. Praul.] [7]
    April 1, 1907:
    Yerdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (2, 3) rulings on evidence, excluding opinion of neighbors and (4, 5, 7) portions of opinion as above, quoting them.

      Isaac Hassler, with him Edward F. Boehne, for appellant.

      Charles Hunsieker, with him George T. Hunsieker and Joseph W. Hunsieker, for appellee.
   Per Curiam,

All that appellant’s evidence tended to show was a parol gift of land, prima facie ineffective under the statute, and not within any of the exceptions, as there never was any possession in the donee. The holder of the legal title lived in the house, paid the taxes and so far as the evidence showed was in actual as well as legal possession.

The opinions of the neighbors as to who appeared to be the head of the house were irrelevant gossip properly excluded.

The disclaimer of title by Maud E. Praul, the other defendant, should have been admitted of record and a verdict in favor of the plaintiff directed against her. But the error in that regard did no harm of which appellant can complain.

Judgment affirmed.


text:
    Singer’s Estate.

      Contract — Sale—Unconscionable bargain — Inadequate price.

    A sale of an interest in a decedent’s estate payable at a future time, and having a prospective value of $5,000, for the sum of $500, will be upheld, although the bargain is unconscionable and the price grossly inadequate, where there is no evidence that the seller was subjected to constraint, or that any fraud or misrepresentation was practiced upon him.

      Argued Jan. 16, 1907.
    Appeal, No. 218, Jan. T., 1906, by Sarah G. Hackett aud Mary K. Gunkle, from decree of O. C. Phila. Co., sustaining exceptions to readjudication in Estate of Severin Singer, deceased.
    Before Mitchell, O. J., Eell, Brown, Mestrezat, Pother, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to readjudication.
    Ashman, J., filed the following opinion :
    The exceptions relate to the award of the share in his father’s estate of John Singer, a son, to Sarah O. Hackett, an alleged purchaser of his interest. The share amounted to about $8,000, against which a mortgage for $3,000 had been given by the son, leaving a net value of $5,000, for which the claimant paid $500. The testator’s will directed an accumulation of the income of his estate until the arrival at full age of his youngest child, at which time his estate should be equally divided among his children, six in number. John Singer, the son, secured a loan on mortgage of $1,000, and according to his testimony afterwards applied to George E. Hackett for an additional loan of $3,000. He sought this aid of Hackett, who appears to have effected a loan for his brother, in consequence of written offers from Hackett to loan money upon his share, or to purchase it outright. The first communication was dated April 22, 1903, and read as follows: “Mr. John Singer, Dear Sir: Any time you might desire to secure an additional loan or sell your estate interest I would be pleased to have you call and see me.” The note inclosed the card of the writer, headed, “Loans, Real Estate, Investments, etc., 635 Walnut St.” Singer called upon Hackett, but was put off, and he finally effected the loan through a building association and satisfied the prior mortgage of $1,000. In November, 1903, Singer asked Hackett if he would secure a loan of $1,000, to which Hackett replied that the share was not worth that sum, because it was not payable for nine years. He finally declared that his wife would loan $500, and this offer was accepted by Singer, who thereupon, with his wife, signed and acknowledged certain papers, which he supposed were evidence of a loan. This was the narrative in brief of the transaction as told by Singer and corroborated by his wife. Both admitted the execution of the assignment, the deed and the transfer of the building association stock, and Singer also admitted that the papers had been submitted to him for examination, but declared that he had only glanced over them, believing them to be simply evidences of a loan.
    The claimant, however, produced a postal card in the handwriting of Singer which was flatly contradictory of the theory of a loan. It was dated November 5, 1903, and read: “ Dear Sir: My interest in my father’s estate is for sale. I will sell it for $1,000 cash, subject to the $3,000 mortgage. If you wish to buy it let mo know as soon as possible, as another party has bid that amount and I will give you the first chance. Tours respectfully, John Singer.” Ilackett testified that in answer he offered to purchase at $500, which reply the son denied receiving. His letter dated November 26, was thereupon produced, saying : “ I will take your offer of $500, but I must have the money before next Wednesday.” This correspondence is open to one construction only. If there is any ambiguity it is removed by the after conduct of the son. He paid no dues to the building association and no interest on his mortgage to the association for $3,000, which were no longer necessary, if he had parted with his title. We do not hesitate to say that the bargain on the part of the buyer was unconscionable because the price was grossly inadequate. But this, if the bargain was not ■ brought about by fraud, affords no ground for setting the sale aside : Whelen v. Phillips, 151 Pa. 312; Robbins’s Est., 199 Pa. 500. Was there fraud on the part of the purchaser or her agent ? None certainly is visible on the face of the transaction. The son makes a distinct offer in writing to sell his share in the estate; he signs and acknowledges the assignment and the deed to the purchaser, and transfers to her the stock in the building association, from which he had procured a mortgage, and he admits that ample opportunity was given for scrutinizing the papers, and he ceases from the date of the transaction to pay the dues and interest to the association which as owner of the mortgaged share he was obliged to pay.
    Was there fraud which arose out of the relations of the parties ? The agent of the seller was the agent of the buyer— a relationship which is common enough among real estate brokers, and provocative enough of fraudulent practices; but the purchaser here was the wife of the agent, and from their community of interests, a commission paid by the wife practically came from the pocket of the agent. The judicial decision that the trust created by the will Avas invalid, and that the children’s interest vested at testator’s death was not rendered until after the dealings between the parties had closed. If the claimant had prior thereto been advised by counsel as to the nature of the testamentary trust, and had continued to assure the son that the interest was uncertain, his concealment of the information might have vitiated the bargain ; but it was not shown that he had been so advised, and besides, the expediency of securing legal advice must have been as apparent to the seller as to the buyer, and the means of obtaining it were as open to one as to the other.
    In Bennet v. Bennet, 43 L. T. (N. S.) 246, Sir George Jessel said, “ there is no reason why a man should not be a fool.” As a corollary to that saying, it may be added that there is no reason why a court should protect a fool against the result of his folly. No new feature of rapacity in the buyer is apparent in this instance to make him a worse offender against the law of fair dealing than an army of Shylocks who have preceded him. The patriarch Jacob bought a large landed estate from an improvident brother for the price of a frugal breakfast, and the common parent when appealed to upheld the bargain. A “ catching bargain ” much later in date than that between Jacob and Esau was passed upon in Davidson v. Little, 22 Pa. 245, when the oAvner of land worth $8,000 conveyed his interest for $200. The court held that the transaction was suggestive of fraud, but that the contract was binding if the vendor was of full age, of sound mind, acquainted with the necessary facts and subjected to no mental imprisonment.
    The exceptions to the readjudication are sustained, and the award made by the original adjudication is reinstated.

      Error assigned was the decree of the court.

      J. Albert Miller, with him Thomas A. Fahy, for appellant.

      Robert S. Bright, for appellee, was not heard.

      April 1, 1907:
   Per Curiam,

The learned court below found that while the bargain was unconscionable because of the, gross inadequacy of the price yet it was not fraudulent, and, therefore, could not be set aside.

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


author: Mr. Justice Potter,

text:
    Lefferts, Appellant, v. Dolton.

      Deed, — Tender—Production of deed — Opportunity to examine deed.

    A mere statement by an agent of a vendor of land made to the vendee that he, the agent, had in his pocket a deed executed by the vendor, without producing the deed to the vendee, and giving him an opportunity to examine it, is not a sufficient tender. Before being called upon to pay his money, the vendee is entitled to see that the conveyance is properly signed, sealed and acknowledged, and that the description of the land to be conveyed is correct.
    In such a case the vendee will not be deemed to have waived a tender, where he does not say that he will not accept a deed for the property, nor refuses in terms to pay the balance of the purchase money, or say that he could not make the payment.
    Argued Feb. 13, 1907.
    Appeal, No. 11, Jan. T., 1907, by plaintiffs, from judgment of C. P. Bucks Co., Sept. T., 1901, No. 21, for defendant non obstante veredicto in case of Simon V. Lefferts v. Richard L. Dolton.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit to recover a balance of purchase money on real estate. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict for plaintiff for $10,200.79. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      Hugh B. Eastburn, for appellants.
    It is well settled law that where a tender is necessary, and an objection is made to-it, the party refusing to receive the tender will not be permitted to make any other objection than that made at the time, for the reason that the objection might be avoided: Fitzpatrick v. Engard, 175 Pa. 393.
    March 11, 1907:
    An offer to pay money by a person who has the money with him, which is refused, is a good tender without showing the money : Appleton v. Donaldson, 3 Pa. 381.
    A general refusal is a waiver of what may be considered the details of the tender: Tiernan v. Roland, 15 Pa. 429; Herman v. Allegheny City, 29 Pittburg Leg. Jour. 347.

      William C. Ryan, for appellee.
    A covenant by a vendee to pay, and the vendor to convey, upon the payment of the purchase money, are dependent covenants, and an action of covenant to compel the payment of the purchase money cannot be maintained by the vendor without proof of a tender of a conveyance before suit brought: Adams v. Williams 2 W. & S. 227; Hamilton v. Crossman, 130 Pa. 320.
    It was said in Dearth v. Williamson, 2 S. & R. 498, that the plaintiff having covenanted to make a lawful deed was at least bound to produce his title to the defendant and offer himself ready to examine a deed, for without a sight of the papers it would not be possible for the defendants either to prepare a deed or form a judgment of the goodness of the title, which they had a right to be satisfied of before they paid the purchase money.
   Opinion by

Mr. Justice Potter,

This action was brought to recover the balance of the purchase money, on an agreement for the sale of realty. The plaintiffs averred, and the defendant denied, that a sufficient tender of a deed for the property in question was made to the defendant, by the authorized representative of the vendor. Under the agreement, the balance of the purchase money was to be paid “ On or before the first day of April, 1904, upon execution, and delivery of the deed.” John Lefferts, a son of the vendor, on April 1, 1904, took a deed of the farm, which had been executed a day or two before, to the residence of the defendant. Not finding him at home, he sought for and found him, later in the afternoon, at the residence of his son. Lefferts said to the defendant that he had come to tell him that everything was now ready; that he had brought the deed; that all the liens were cleared off; that they had moved away from the property, and everything was ready for defendant; that they had now performed their part of the agreement, and they wanted the defendant to perform his part. Lefferts admits, however, that he did not produce the deed to defendant, and that it was not shown to him, and of course he did not examine it. The testimony does not show that the defendant, Dolton, refused to take the property, or that he made any statement that he would not comply with the conditions of the sale. Lefferts said merely that he told the defendant that his father, the vendor, had signed the deed, and that he then had it with him, in his pocket. N or does it appear that any demand was made by the representative of the vendor upon the defendant, for the payment of the balance of the purchase money at that time, except in so far as it might be inferred from the general statement that Lefferts made to the defendant, when he told him that they wanted him to perform his part of the contract.

We are not able to see in this testimony anything that can properly be construed as a sufficient tender of the deed. The mere statement by Lefferts, that he had the deed in his pocket, without producing it to the defendant, and giving him an opportunity to examine it, was not sufficient. Before being called upon to pay his money, the defendant was entitled to see that the conveyance was properly signed, sealed and acknowledged, and that the description of the land to be conveyed was correct. The learned judge of the court below stated the rule accurately when he said that to constitute a valid tender, a duly executed deed must be produced by the vendor to the vendee, so that the vendee may see that it is regular in form, and that it conveys the estate he bargained for.” The vendor in the present case fell short of this requirement. Nor can we see anything in the evidence to support the contention of plaintiffs that the conduct of the defendant amounted to a waiver by him of the tender of the deed. It is true that Dolton did question the fact of the liens having been removed, but he did not say that he would not accept a deed for the property, nor did he refuse in terms to pay the balance of the purchase money. He did not say that he could not make the payment, or that he would not. So that in this respect the facts of the present case do not come within the principle of Herman v. City of Allegheny, 29 Pitts. L. J. 347, cited by counsel for appellants. We are of opinion that the learned judge of the court below committed no error in entering judgment for the defendant non obstante veredicto.

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


text:
    Commonwealth v. Clymer, Appellant.

      Constitutional law — Title of act — Practice of medicine — License—Act of May 18, 1893, P. L. 94 — Criminal law.

    The Aet of May 18, 1893, L. P. 94, entitled “An Act to establish a Medical Council, and three State Boards of Medical Examiners, to define the powers and duties of said Medical Council and said State Boards of Medical Examiners, to provide for the examination and licensing of practitioners of medicine and surgery, to further regulate the practice of medicine and surgery, and to make an appropriation for the Medical Council,” is constitutional, and gives sufficient notice of the provision contained in sec. 14 of the act making a violation of the provisions of the act, relating to the practice of medicine without a license, a misdemeanor.
    On a prosecution for practicing medicine without a license, a clerk in the office of the state superintendent of public instruction may testify that he had examined the record of the state medical council, and that he had not found the defendant registered therein; and this is especially the case where the record produced from the office of the prothonotary shows that none of the papers filed by the defendant for the purpose of registration was a license issued by the medical council of the state, and that in the affidavit filed by the defendant in the prothonotary's office the clauses of the blank relative to the state license had been all erased.

      In. a prosecution for practicing medicine without a state license, it is not necessary for the court to instruct the jury as to the law of costs in case of acquittal.
    Argued Feb. 4, 1907.
    Appeal, No. 71, Jan. T., 1906, by defendant, from, judgment of Superior Court, Oct. T., 1905, No. 217, affirming judgment of Q. S. Lehigh Co., April T., 1905, No. 35, on verdict of guilty in case of Commonwealth v. R. S. Clymer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Appeal from the Superior Court.
    The opinion of the Superior Court, Rice, P. J., was as follows:
    It is argued that the Act of May 18, 1893, P. L. 94, is unconstitutional, because the subject of legislation is not clearly expressed in the title. The particular objection is that the title gives no notice of the provision, contained in the fourteenth section, making a violation of any of the provisions of the act, especially those relating to practicing medicine or surgery without license and registration, a misdemeanor punishable by fine. Inasmuch as the subject of legislation as expressed in the title is the examination and licensing of practitioners of medicine and surgery, and the further regulation of the practice of medicine and surgery, anyone would naturally suppose from reading the title that the act not only provided for the licensing of such practitioners but declared the consequences of practicing without complying with its provisions. “For,” as Blackstone says, “it is but lost labor to say, ‘do this, or avoid that,’ unless we also declare, ‘ this shall be the consequence of your noncompliance.’ We must therefore observe, that the main strength and force of law consists in the penalty annexed to it: ” 1 Bl. Com. 57. It is not to be supposed that this would be omitted from such legislation as is described in this title, and anyone reading it would be led to look into the body of the act to see what consequences it attaches, penal or otherwise, to noncompliance with its provisions. The fact that a title as broad as this does not expressly declare that a violation of the provisions of the act is made a penal offense is not a valid objection. This has been decided in numerous cases wherein the precise question has been duly considered; and Mansfield’s Case, 22 Pa. Superior Ct. 224, which is cited by the appellant’s counsel as authority for a different conclusion, is not in conflict with them, as an examination of Judge Porter’s Opinion will show. Amongst these cases are Commonwealth v. Sellers, 130 Pa. 32; Com. monwealth v. Silverman, 138 Pa. 642; Commonwealth v. Muir, 1 Pa. Superior Ct. 578; s. o., 180 Pa. 47; Commonwealth v. Moore, 2 Pa. Superior Ct. 162; Commonwealth v. Jones, 4 Pa. Superior Ct. 362; Commonwealth v. Beatty, 15 Pa. Superior Ct. 15; Commonwealth v. Rothermel, 27 Pa. Superior Ct. 648. The constitutionality of the act was under consideration in Commonwealth v. Finn, 11 Pa. Superior Ct. 620, and again in In re Registration of Campbell, 197 Pa. 581. In the latter case the sufficiency of the title as notice of the provision for registration was affirmed in a statement of general principles which fully covers the objection raised in this case.
    The admission of the testimony of a statistical clerk who assisted in keeping the records of the medical council and the state board of medical examiners, that he had examined them and could not find the name of R. S. Clymer therein was not prejudicial error, even though this mode of proving the contents of the record was open to objection. In view of the fact that these records are voluminous and are kept at Harrisburg, and of the great inconvenience that Avould be caused by compelling their production for the inspection of the jury we are not prepared to declare that this testimony Avas admissible; but it seems unnecessary to go into a discussion of that question because according to the doctrine of Commonwealth v. Wenzel, 24 Pa. Superior Ct. 467, and in view of the state of the record produced from the prothonotary’s office, it was not incumbent upon the commonwealth in the first instance to prove that the defendant had no license.
    The fact that the defendant practiced medicine as alleged in the indictment was established by abundant testimony and Avas not in dispute. The legal question was whether he had a right to do so; to be more explicit, Avhether he had complied Avith the provisions of the act of 1893. The record produced from the office of the prothonotary, taken in connection with the uncontradicted testimony of the deputy, showed that none of the papers exhibited by the defendant for the purpose of registration was a license issued by the medical council of Pennsylvania, and no such license was produced on the trial, or was proved and its non production accounted for. Moreover, in the affidavit filed by the defendant, with these papers the clauses of the blank relative to the exhibition of a license issued by the medical council, and to compliance with the provisions of the act of 1893, were all erased, thus showing that the defendant was careful not to assert that he had any such license, or that he had complied with the provisions of the act. In view of these facts the court was justified in expressing to the jury his opinion as to what the verdict should be. It is often permissible, and sometimes advisable for a judge in his charge to the jury to express an opinion upon the facts, provided he does it fairly and does not give a binding direction as to them: Commonwealth v. Winkelman, 12 Pa. Superior Ct. 497 and cases there cited. It is even more appropriate for him to do so where the case depends as fully a,s this did upon questions of law and the construction of public records. We are not convinced that the judge went farther than he was warranted in doing, indeed, even if he had still more explicitly instructed the jury that the record produced from the prothonotary’s office showed that the defendant did not exhibit to the prothonotary a license issued by the medical council of Pennsylvania, we cannot say that this would have been error.
    April 1, 1907:
    The complaint that the court should have instructed the jury as to the law of costs in case of acquittal is without merit. No such instructions were asked and it was not important for the jury to know what the law was upon that subject in the event of their finding the defendant guilty. We have no right to suppose that if the judge had charged them fully upon that subject their verdict would have been different.
    All the assignments of error are overruled, the judgment is affirmed and the record is remitted to the court below to the end that the sentence be carried into effect.

      Error assigned was the judgment of the Superior Court.

      James A. Sehaadt and G. Oscar Beasley, for appellant.

      H. W. Schcmtz, district attorney, and A. Q. Dewalt, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the Superior Court.


text:
    Boning’s Estate.

      Trusts and trustees — Adjudication—Confirmation of adjudication.

    Where a decree has been regularly made that a trustee shall turn over to his successor in the trust the balance found to be in his hands on the adjudication of his accounts, and no exception has been taken to the decree, and it has been confirmed absolutely, the court may make an order on the trustee to pay his successor, without a formal separate proceeding by the successor in the trust, showing service of a certified copy of the award, demand for payment, and noncompliance with the demand.
    Submitted Jan. 17, 1907.
    Appeal, No. 327, Jan. T., 1906, by H. C. Terry, surviving Trustee for Wm. J. Boning, from decree of O. O. Phila. Co., directing a trustee to pay over money in the Estate of William Boning, deceased.”
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for order on trustee to pay over money.
    From the record it appeared that Henry O. Terry was the sole surviving trustee of the estate of William Boning, deceased. In the adjudication of his account as trustee, the court below made the following award : “ Balance of principal, per account $13,375. It being .stated that the account was filed for the purpose of enabling the accountant to be discharged and relieved from further duties of the trust, the above balance is awarded and directed to be paid by him to his successor when appointed and qualified.” This adjudication was confirmed absolutely on June 9,1906 ; no exceptions were filed thereto or appeal taken.
    On July 7, 1906, Margareita D. B. Boning was appointed by the court below trustee of the said estate, and, after having entered the required security, made demand upon the appellant that he pay over the amount of the award. Upon failure of the appellant to comply with this demand, the appellee presented her petition to the court below for an order upon the appellant to pay to her the amount of the award. The appellant filed an answer in which he claimed that no certified copy of the award had been served upon him and a proper demand made thereafter. He also further set forth in his answer that the auditing judge had, before the final confirmation of the decree, his attention called to certain matters which made the decree erroneous, and that the judge had requested respondent to permit the matter to stand over until he was physically able to give it attention, but that he died before he could do so.
    April 1, 1907:
    The court entered a decree directing the appellant to pay over the moneys and transfer the securities to the appellee.

      Error assigned was the decree of the court.

      John A. Claris, for appellant.

      Eell & Spalding and Alfred Moore, for appellee.
   Per Curiam,

A decree was regularly made that appellant should turn over to his successor in the trust the balance found to be in his hands op the adjudication of his accounts. Whether or not the appellant is correct in his assumption that the auditing judge, the late president judge of the orphans’ court, became convinced that the decree was erroneous, and would have corrected it, no exceptions appear on the record and the decree was confirmed absolutely. There is, therefore, nothing to show any error in the decree now appealed from.

Appeal dismissed.


text:
    Thewlis’s Estate.

      Marriage — Presumption as to divorce — Remarriage.
    Where a married, man in England deserts his wife in 1858, and emigrates to this country, and in 1868 marries again by a religious ceremony in this country, and his wife in England marries again in 1869, and the man’s first wile dies in 1891, and the man himself in 1904, and during the thirteen years from 1891 to 1904, the woman to whom he had been formally married in 1868, was recognized by him and by herself and by the community as his lawful wife, and in 1896, they executed a deed in which they recited themselves as husband and wife, it will be presumed either that the man and his second wife were married after a divorce from the first wife, or 'that if no such divorce had been obtained they contracted the marriage relation after the death of the first wife.
    Argued Jan. 17, 1907.

    Appeal, No. 183, Jan. T., 1906, by Eliza Eenton, from decree of O. C. Pbila. Co., Oct. T., 1905, No. 241, dismissing exceptions to adjudication in Estate of John W. Thewlis, deceased.
    Before Mitchell, C. J., Eell, Brown, ' Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication. Penrose, J., filed the following opinion:
    In view of the fact that within a few years after the' decedent came to this country, in 1858, both he and his wife whom he left in England, whom he had married in 1854, married again, he in 1868 and she in 1869, the conclusion cannot be avoided without a disregard of settled principles of the law of presumptions, that there was a legal dissolution of their marriage. By her marriage in 1869 to James Hirst, the wife became the mother of six children, and he having died, in 1880, she became the wife of Charles Dyson.
    Thus, if the decedent continued to be her husband, they were both guilty of bigamy, and the children by her second marriage were all illegitimate. But the presumption against crime, and still more the presumption in favor of legitimacy, forbid such a result; and nothing less than positive, affirmative proof to the contrary can be accepted as sufficient to overcome such presumptions, especially in view of the great lapse of time and of the further fact that both parties are dead. Every intendent and every inference will be made in favor of innocence and legitimacy: Best on Evidence, sec. 346. “ So strong is this presumption,” it is said in 1 Greenleaf’s Evidence, sec. 35, “ that even when the guilt can only be established by proving a negative,- the negative must, in such cases, be proved by the party alleging the guilt, though the general rule of law devolves the burden of proof on the party holding the affirmative,” See also Wile’s Estate, 6 Pa. Dist. Rep. 384; s. c., 6 Pa. Superior Ct. 435; Richardson’s Estate, 132 Pa. 292. Upon this point no importance whatever can be attached to the testimony of the daughter who remained with the wife in England, with regard to the absence of a divorce. She was but two years old when her father came to America, and but thirteen when her mother married James Hirst, in 1869. The conclusion reached by the auditing judge in favor of the claim of the wife whom the decedent married in 1868 might well be sustained on the ground thus suggested ; but he has placed it upon grounds which are unanswerable and conclusive. If, when the decedent contracted the second marriage, he had not been divorced from the woman whom, years before, he had left in England, the marriage, although solemnized in church, as it was, with due religious ceremony, was void, in spite of the conceded innocence of the wife and her ignorance of the existence of any obstacle. Nor could it have acquired validity if the first wife had survived the husband, no matter how great the lapse' of time or what the belief in the community in which the parties resided. But the first wife did not survive. She died in May, 1891, and the decedent lived until October, 1904. During all this time, a period of more than thirteen years, the person to whom he had been formally married in 1868 was recognized by him and by herself and by the community as his lawful wife. Naturally there was no repetition of a marriage ceremony, or any formal expression of marriage contract, for the wife never had knowledge that the one already entered into was not valid ; but each day during these many years that they thus lived together there was an assertion by acts and conduct which in law are as efficacious as words for establishing a contract by implication.
    That marriage may be established by long continued cohabitation and reputation is too well settled to require citation of authority. See Richard v. Brehm, 73 Pa. 140; and while there is a presumption of continuance as to a relation illicit in its inception, under such circumstances as existed in Hunt’s Appeal, 86 Pa. 294, where the interval during which it might have become lawful was but two months (December 13, 1873, to February 16, 1874, or in Grimm’s Estate, 131 Pa. 199, where it was but one week), the doctrine of those cases is not to be extended to one like the present, where in good faith the parties continue to live together as husband and wife, after the complete removal of the only obstacle in the way of a valid marriage, and so for many years continuously proclaim themselves to the public until the relation ceases by the husband’s death.
    The presumption of continuance of an illicit relation, under such circumstances, gives away to the superior presumption in favor of compliance with the requirements of the law, of morality, and of common decency. See Greenleaf on Evr dence, sec. 41; Bergdoll’s Estate, Y Pa. Dist. Pep. 13Y.
    In Hantz v. Sealy, 6 Binney, 405, which is supposed by the exceptant to establish the doctrine that when the relation was originally illicit it cannot become lawful without a formal and express declaration, the woman, who did not make such declaration, appears to have left the man after his divorce from the wife, and, without asserting a marriage, sued him in her unmarried name for a legacy which had been left to her by a testator of whose will the defendant was executor, the defense being, inter alia, that the suit could not be maintained because the plaintiff was the wife of the defendant. What was said by the court with regard to the marriage was said with reference to the facts thus disclosed by the evidence, and has no application to the very different facts of the present case.
    But the case does not rest upon the mere long continued cohabitation and reputation after the death of the first wife. There was not only the introduction of the wife as such to strangers by the husband, but the fact that they were husband and wife was solemnly recited and declared in a deed, duly executed and acknowledged by both, to the city of Philadelphia, in December, 1896, and in the face of this deed a finding that there was then no valid marriage would be impossible. The case might safely rest on this alone. Nothing need be added to what has been said by the auditing judge on the subject of commissions. See also Mayberry’s Appeal, 33 Pa. ■258.
    The exceptions are dismissed and the adjudication confirmed absolutely.

      Error assigned was the decree of the court.

      Joseph II. Ta ulane, of White, White da Taulame, with him
      Ernest E. Prevost and Thomas Earle White, for appellant.
    A marriage will not be presumed where a man, during the lifetime of his lawful wife, whom he has deserted, contracts a second marriage, and it affirmatively appears that after the death of the lawful wife no subsequent marriage of any kind was entered into between the man and the alleged second wife: Physick’s Estate, 2 Brews. 179; Heffner v. Heffner, 23 Pa. 104; Thomas v. Thomas, 124 Pa. 646; Clark’s Est., 173 Pa. 451; Hantz v. Sealy, 6 Binn. 405; Commonwealth v. Stump, 53 Pa. 132; Richard v. Brehm, 73 Pa. 140; Comly’s Est., 185 Pa. 208; Hines’s Est., 10 Pa. Superior Ct. 124.
    While in the absence of direct proof of such fact, marriage may be proved by cohabitation and reputation, such elements of proof do not constitute marriage: Richard v. Brehm, 37 Pa. 140; Tholey’s Appeal, 93 Pa. 36; Grimm’s Estate, 131 Pa. 199; Reading Eire Ins., etc., Co.’s Appeal, 113 Pa. 204; Yardley’s Est., 75 Pa. 207; Hunt’s Appeal, 86 Pa. 294.
    It seems to be well-nigh universally established, however, that where the relation between a man and woman is illicit at its inception, such relation is presumed to continue illicit until there is proof of a changed relation, either by the ratification of a new and valid contract of marriage, or the proof of such facts and circumstances from which a marriage in fact may be presumed: 1 Bishop on Mar., Div. & Sep., sec. 961, p. 149; Schouler on Domestic Relations, sec. 26; Cunninghams v. Cunninghams, 2 Dow, 482; Lapsley v. Grierson, 1 H. L. Cas. 498; Physick’s Estate, 2 Brews. 179; Bicking’s App. 2 Brews. 202; Grimm’s Est., 131 Pa. 199; Reading Fire & Trust Co.’s Appeal, 113 Pa. 204; Hunt’s Appeal, 86 Pa. 294; Bergdoll’s Est., 7 Pa. Dist. Rep. 138; Hunt v. Cleveland, 6 Pa. C. C. Rep. 592; Weitzel v. Central Lodge, 1 Pa. Dist. Rep. 143; Jones v. Jones, 4 Pa. Dist. Rep. 223; Staiger’s Est., 7 Pa. Dist. Rep. 351.
    The dissolution of the marriage of testator with his first wife, by divorce, will not be presumed, in the absence of any evidence to that effect, in order to support the validity of the second marriage: O’Gara v. Eisenlohr, 38 N. Y. 296; Wile’s Est., 6 Pa. Superior Ct. 435; Randlett v. Rice, 141 Mass. 385; Collins v. Voorhees, 47 N. J. Eq. 555 (22 Atl. Repr. 1054); Cartwright v. McGown, 121 Ill. 388 (12 N. E. Repr. 737).

      April 1, 1907:

      N. Dubois Miller, of Biddle & Ward, with him. H. Alan Damson, for appellee.
    The presumption in favor of innocence and of legitimacy both compel the conclusion that a divorce had been obtained by one or the other of the parties to the original marriage between John W. Thewlis and his first wife before either of their second marriages took place: Hynes v. McDermott, 91 N. T. 451; Senser v. Bower, 1 P. & W. 550; Richardson’s Est., 132 Pa. 292; Wile’s Est., 6 Pa. Superior Ct. 435; Blanchard v. Lambert, 43 Iowa, 228; Harris v. Harris, 8 Ill. App. 57; Coal Run Coal Co. v. Jones, 127 Ill. 379 (8 N. E. Repr. 865); Klein v. Laudman, 29 Mo. 259.
    When a man and woman have entered into a formal marriage relation which at the time is invalid because of a preexisting obstacle, and when the obstacle has been removed, they continue to live together as man and wife for a long period of time, recognizing the existence of the marriage relation between them by many indisputable proofs, there is sufficient evidence upon which a jury or judge in the orphans’ court may find as a fact that at the time of the death of one of them the marriage relation existed: Physick’s Est., 2 Brews. 179; Vincent’s App., 60 Pa. 228; Drinkhouse’s Est., 151 Pa. 294; Pickens’s Est., 163 Pa. 14; Strauss’s Est., 168 Pa. 561; Staiger’s Est., 7 Pa. Dist. Rep. 351; Wile’s Est., 6 Pa. Superior Ct. 435; McCausland’s Est., 213 Pa. 189; Campbell v. Campbell, L. R. 1 Sc. &. Div. App. Cases, 182; Hicks v. Cochran, 4 Edw. 107; Rose v. Clark, 8 Paige, 574; Fenton v. Reed, 4 Johns. 52; Blanchard v. Lambert, 43 Iowa, 228; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Teter v. Teter, 88 Ind. 494; Hantz v. Sealy, 6 Binney, 405; Hunt’s App., 86 Pa. 294; Grimm’s Est., 131 Pa. 199; Bott’s Est., 10 Pa. Dist. Rep. 122; Hunt v. Cleveland, 6 Pa. C. C. Rep. 592; Philbrick v. Spangler, 15 La. Ann. 46.
   Per Curiam,

Decree affirmed on the opinion of Judge Penrose, dismissing exceptions to the adjudication.


text:
    Sedgley Avenue. Lehigh Avenue.

      Road law — Damages—Change of grade — Act of May 26, 1891, P. L. 117.
    Where in proceedings under the Act of May 26, 1891, P. L. 117, viewers have allowed damages for the opening and grading of a street to an established grade, a subsequent purchaser of land abutting on the street cannot recover damages for the physical change of grade to the established grade.
    Argued Jan. 17, 1907.
    Appeal, Nos. 185 and 186, Jan. T., 1906, by William F. Read, from order of C. P. No. 1, Phila. Co., Dec. T., 1903, Nos. 1,998 and 1,999, making absolute rule to quash appeal for appointment of viewers In re Change of Grade of Sedgley and Lehigh Avenues.
    Before Mitchell O. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to quash petition, to appoint viewers.
    Beitler, J., filed the following opinion:
    The petition of William F. Read set out his title to a lot at Lehigh avenue and Nineteenth street, and that under an ordinance of 1900 the city has graded Lehigh avenue, the street being out down several feet below the surface of petitioner’s lot, thereby causing him damage.
    To this petition the city filed an answer setting out: That Lehigh avenue from Seventeenth street to Twenty-first street was placed upon the confirmed plan on October 30, 1839, and that the last grade was confirmed January 4, 1892, and that since that date there has been no change of lines or grades of the avenue; that on March 25,1892, upon petition filed in the quarter sessions praying for viewers to determine the necessity of opening Lehigh avenue from Seventeenth street to Twenty-first street, the court appointed viewers who decided in favor of the opening, and filed a report on July 20, 1893, awarding damages and assessing benefits. Exceptions were filed, whereupon the court referred the report back to the viewers who filed a supplemental report on June 21, 1894, which the court of quarter sessions confirmed on October 6, 1894. With the report was filed an affidavit of service of notice of the appointment of the viewers and the place and date of their first meeting, on the property owners and tenants along the line of the said Lehigh avenue. With the report was filed a plan showing the lines and grades confirmed on January 4, 1892. That pursuant to the Act of May 26,1891, P. L. 117, considering the injury arising by reason of opening and grading the avenue according to the plan, they had awarded damages to the estate of Andrew Root from which the petitioner acquired title in 1895, and the damages were paid by the city. That two other claimants, John C. Frishmuth and the Hale & Kilburn Manufacturing Company, acquired title from the heirs of John H. Smaltz, to whom damages were awarded and paid. That the grading under the ordinance of 1900 was completed November 3, 1903, and that the avenue was graded to the lines and grades established on the confirmed plan of January 4, 1902, and in accordance with the plan filed with the viewers’ report in the quarter sessions. That Lehigh avenue, from Glen wood avenue to Twenty-first street, is within the limits of Lehigh avenue between Seventeenth and Twenty-first streets. That the petitioner is not entitled to a jury because “ the damages by reason of the grading of Lehigh avenue have been adjudicated by the report confirmed on October 6, 1894, and because his predecessors in title have been awarded and paid damages for the injury due to the grade.”
    The answer prays that the appointment of viewers heretofore made be set aside and the petition quashed.
    The petitioner put the case in the list for argument on the petition and answer. From the petition and answer the following brief history of the case may be made up:
    Lehigh avenue from Glen wood avenue to Twenty-first street was graded, the work being completed on or about November 3,1903. The said street was graded in front of petitioner’s and the property of the other claimants to the lines and grades established on the confirmed plan on January 4, 1892, and in accordance with the plan filed in the proceedings to open said Lehigh avenue between Seventeenth and Twenty-first streets.
    The question thus raised is important. The Act of May 26, 1891, P. L. 117, provides: “ That in all cases of assessment of damages for the opening or widening of any street or highway in any city in this commonwealth, the award of damages, if any, shall include the damage due to the grade at which said street or highway is to be opened or widened and the plan attached to the report of the viewers awarding the damages shall have therein a profile showing the existing grade.”
    The city contends that the petitioner and the other claimants have no standing, because all the injury due to the grade has already been adjudicated in the proceedings to open the street. In that proceeding the grades were considered and damages awarded therefor.
    In Pusey v. City of Allegheny, 98 Pa. 522, it was held that the plaintiff was entitled to recover not only for the land taken in the opening of the street, but for damages to the remainder of the property “ consequent upon the construction of the street, its grades, cuts, slopes, fills and walls.”
    In point of fact, the viewers assessing damages for an opening never could consider the question apart from the effect the grade had upon the land left after the opening. To cut fifty feet, say, out of a tract was one thing, and the damages resulting therefrom not usually difficult to ascertain, but when the new highway was to be above or below the natural surface of the land abutting upon the new street, a new element was introduced and one which witnesses and viewers could not eliminate in fixing the damages. To avoid uncertainty, to prevent two actions where one would suffice, and to escape the danger of a property owner in the opening proceedings recovering damages for a taking at a grade other than the natural surface (in which the viewers were sure to consider the grade) and then when the actual grading was done recovering again, the act of 1891 was passed. As a matter of fact the grading of a street is its physical opening. In very few cases does the city give a bond and proceed to open in advance of the damages being assessed. The ordinance to open is the first step, usually. Then the jury is appointed and the damages assessed and paid, and thereafter when the city is in funds the physical grading is done and sewers and water pipes and gas pipes are laid as part of the work. The act of 1891 introduced a sensible system and gave the property owner in one proceeding his damages for the opening at a grade always fixed on the plan on which the streets appear when it is confirmed. That the grantors of the petitioner in this case were awarded damages both for the opening and the grading is not disputed, but it is contended that when the work was done which constituted the physical opening and grading, that those then holding the title were entitled to be paid for the grading, that is, for the depositing of dirt upon the strip taken as a street, or the cutting out of dirt from that strip according as the grading consisted oh a “ fill ” or a “ cut,” and we are referred to cases in line with our own case : In re Change of Grade of Norwood Street, 12 Pa. Disk Rep. 309, and In re Plan 166, 143 Pa. 414.
    There can be no question that where there has been a change of grade regulation and subsequently there is an actual grading according to the changed x plan, that then the property owner’s right for damages therefor begins to run. But we have before us not such a case, but an application by one who purchased from the estate of Andrew Root to recover for what that estate had already been fully compensated for. If the plaintiff’s contention is to be sustained, then the act of 1891 gives the owner the right to damages for both opening and grading, and if he is still the owner when the actual work is done he cannot recover, but if he parts with his title his vendee can recover.
    We cannot adopt any such view. When the petitioner bought, the record of the quarter sessions showed him that the party he was buying from had already claimed and been awarded damages for the land taken in the opening of Lehigh avenue and for the damage to the part left abutting upon the avenue due to the fact that the street was plotted to be opened' below the surface of the land on either side. He was bound by this notice, and when the city comes to exercise a privilege already paid for it cannot be compelled to pay again.
    We regard Tabor Street (No. 1), 26 Pa. Superior Ct. 167, as directly ruling this case.
    Nor are we able to agree with the petitioner’s counsel that the act of 1891 offends against the constitution. Sec. 8 of art. XVI, undoubtedly does provide that the city shall make just compensation for private property injured by the construction of its works. But it does not provide that such payment shall follow and cannot precede the damages done. Suppose the petitioner in this case was claiming damages for land taken in the opening of Lehigh avenue, and his deed from Root purported to convey the bed of the street, surely it would be an answer to say that his grantor had already collected and the physical taking by making the roadway travelable was but the exercise of a right already paid for. Yet a strict reading of sec. 8, art. XVI, would seem to require the city to pay after she opens if the physical opening does any damage.
    April 1, 1907:
    The same record that gave notice to the grantee of the Root estate that the city had paid the damages for the opening also showed that the jury had assessed the damages as per a plan showing, in profile, the grade and taking into consideration the grade. If Root’s heirs had executed a deed of dedication and release, as Ritter did in Tabor street, their subsequent vendees would have been prevented when the physical grading was done, from claiming damages therefor. If Ritter’s vendees could not recover (and Tabor street so decides) then neither can Root’s vendee and we, therefore, set aside the appointment of viewers heretofore made and quash the petition.

      Error assigned was the order of the court.

      Bertram O. Frazier, with him John W. Frazier, Jr., for appellant.

      John H. Maurer, assistant city solicitor, and JohnL. Kinsey, city solicitor, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of Judge Beitker, in Re Lehigh Avenue.


text:
    Lautenbacher, Appellant, v. Philadelphia.

      Negligence — Municipalities—Defective sidewalks — Contributory negligence.

    Where a woman carries a couch on a sidewalk of a city in such a way that her view ahead is obstructed, and she falls in a hole in the middle of the pavement, she is guilty of contributory negligence, and cannot recover from the city damages for her injuries.
    Argued Jan. 23, 1907.
    Appeal, No. 298, Jan. T., 1906, by plaintiffs, from judgment of O. P. No. 4, Phila. Co., March T., 1904, No. 1,072, for defendant non obstante veredicto in case of Albert M. Lautenbacher and Sallie J. Lautenbacher, his wife, v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Méstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Carr, J.
    At the trial the jury returned a verdict for the plaintiff for $2,000. Subsequently the court entered judgment for defendant non obstante veredicto, Carr, J., filing an opinion in which the accident was described as follows:
    The plaintiffs sued to recover damages for injuries to Sallie J. Lautenbacher, sustained January 27, 1904, while she was walking on the sidewalk upon the west side of Moss street, opposite No. 608. The plaintiffs lived at 644 Moss street, and Mrs. Lautenbacher was walking from that house engaged in moving her furniture to 604 Moss street, she and her sister carrying a lounge, about five feet in length and about fifty pounds in weight. Her sister held the foot of the lounge, walking backwards, and the plaintiff held the head of the lounge, walking forwards, facing her sister. The top part of the curve of the lounge, or the pillow part, was in front of her and reached to about her mouth. She had passed frequently over the sidewalk of No. 608, where the accident happened. It was half past eight in the morning, and Mrs. Lautenbacher was not looking under the lounge, but straight ahead, and there was no snow or ice on the sidewalk, and she could not see underneath the couch. The defendant’s contention was that the pavement was in perfect condition, and that Mrs. Lautenbacher fell against the couch which she was carrying, and, striking its end, broke the kneecap. She, however, testified that she slipped into a hole, which she stated was near the middle of the pavement, eighteen inches square and five inches deep; and she testified that her foot went into the hole and her knee struck on an iron water-box which was in its center, and that it was a hole jagged out around the water-box, which was about five inches wide and of the same depth, and her testimony was corroborated by that of her sister. But on behalf of the defendant, four disinterested witnesses testified that there was no hole in the pavement at the place indicated.
    April 1, 1907:

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

      Leo MaoFarland, for appellant.

      William O. Wilson, assistant city solicitor, with him Gharries E. Bartlett and John L. Kinsey, city solicitor, for appellee.
   Per Curiam,

By carrying the couch in the way she did, the appellant voluntarily impeded her view and disabled herself from the proper performance of her duty to look where she was going. She might as well have put a bandage over her eyes and then charged the city with the results of her failure to see the obstruction over which she fell.

Judgment affirmed.


text:
    Kochesperger, Appellant, v. Philadelphia Rapid Transit Company.
    April 1, 1907:

      Negligence — Street railways — Infant—Evidence—Nonsuit.

      In an action against a street railway company to recover damages for personal injuries to a boy six years old, struck by a street car at a crossing, a nonsuit is properly entered where the only evidence tending in any degree to show negligence on the part of the defendant, was that of a woman who said that when she saw the motorman approaching the crossing, and half a square from it; he was looking to one side into a park, without any statement on her part as to how long the motorman continued to look to the side, or any statement on her part that he was not attending properly to his duties when the car reached the crossing.
    Argued Jan. 23, 1907.
    Appeal, No. 253, Jan. T., 1906, by plaintiffs, from order of O. P. No. 5, Phila. Co., June T., 1904, No. 647, refusing to take off nonsuit in case of Josiab Kochesperger by his next friend, James ~W. Kochesperger, v. Philadelphia Rapid Transit Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy six years old. Before Martin, P. J.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was in refusing to take off nonsuit.

      Ehcgene Raymond, for appellants.

      Thomas leammg, with him Russell Duane, for appellee.
   Per Curiam,

The only evidence tending in any degree to show negligence on the part of the defendant company was that of a woman who said that when she saw the motorman approaching the crossing he was looking to one side into the park. She said the plaintiff was crossing Ridge aveuue from the west or park side to the east when he was caught by the fender. In this she was directly contradicted by the plaintiff himself, who testified that he had been in the park but had come out and crossed Ridge avenue at Cumberland street, played there with another boy for a little while and then started back again across Ridge avenue, followed or chased by the other boy. These were the only witnesses who testified to personal knowledge of how the accident occurred, and their testimony was in irreconcilable conflict. If it be conceded that the conflict was one for the jury to settle, the plaintiff’s case still must rest on the testimony of the woman Agnes Barr. It is very vague and self-contradictory, leaving a strong impression that she was not really there at all. The only direct statement bearing on the question of negligence was that “ the man (motor-man) was looking on the other side of the park.” The car at that time was half a square away from Cumberland street, and she does not say how long the motorman continued to look to the side nor that he was not attending properly to his duties when the car reached the Cumberland street crossing. Even if her testimony had been left to the jury and they found it credible, the court would have been obliged to say that it contained no proof of negligence on the part of the defendant.

Judgment affirmed.


author: Mr. Justice Potter, Mitchell, C. J.,

text:
    Jones v. Weir, Appellant.

      Appeals — Assignments of error — Statement of error — Equity practice.

    Rule 92, by its terms, contemplates the filing of assignments of error in the appellate court, notwithstanding the fact that a statement of errors has been filed in the court below.
    Assignments of error are defective if they do not set out the decree of the court totidem verbis, and if they include a reference to two separate decrees; or if they do not set out separately and in full the exception which it is alleged is not acted upon; or if they do not set out the exceptions dismissed, or the evidence admitted and rejected, and if they embrace more than one point; or if they allege an extract from the opinion of the court below which is not in the decree.

      Appeals — Findings of fact — Evidence■—Misrepresentations.
    Where a finding of fact as to misrepresentations is based upon the testimony of the plaintiff, his wife and a disinterested third party, such finding, although contradicted by the testimony of the other side, will not be disturbed by the appellate court, in the absence of manifest error.

      Partnership — False representation — Rescission—Equity.
    Where one is induced to form a partnership by the false representation of another, the court will, upon the prompt application of the injured .party, .after the deceit becomes known, rescind the contract of partnership, and compel repayment of whatever sum may have been improperly obtained; and this is the case although the false representation may in fact have resulted in no financial loss to the party to whom it was made.
    Where a contract of partnership has been obtained by misrepresentation, it is for the party deceived to elect whether he will be bound by it or not, and if he chooses to rescind, a court of equity will set the contract wholly aside, and appoint a receiver to take charge of the partnership effects.

      Receivers — Injunction—Equity.
    The appointment of a receiver always operates as an injunction, for the court will not suffer its officer to be interfered with by anyone.
    Mitchell, C. J., and Fell and Elkin, JJ., dissent.
    Argued May 14, 1906.
    Reargued Jan. 18, 1907.
    Appeal, No. 52, Jan. T., 1906, by defendant, from decree of C. P. York Co., Aug. T., 1905, on bill in equity in case of Simeon M. Jones v. Thomas Weir.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart,. JJ.
    Affirmed.
    Bill in equity to dissolve a partnership and for a receiver. See Jones v. Weir, 213 Pa. 135.
    From the record it appeared that defendant bought the York Candy Company’s factory for $51,000 worth of the American Stogie Company’s stock at par, paying no cash, but giving a mortgage on Altoona property for $20,000. Weir induced Jones to agree to pay $25,500 for a half interest in this property, and enter into partnership and pay $5,000 more towards working capital, upon the statement that he, Weir, had paid the $51,000 in cash. Upon discovering the deception Jones filed his bill, asking for rescission of the contract, dissolution of the partnership, injunction, and the appointment of a receiver until final accounting.
    The court entered a decree rescinding the contract of partnership and appointing a receiver.
    No assignments of error were filed, but there was printed in the appellant’s paper-book under the caption, “ Brief Statement of Errors,” the following :
    A brief statement of errors alleged by the defendant to have been made by the order and decree of the court in the above-named case (which order and decree were filed January 15, 1906), and which the defendant appeals from.
    1. The learned court erred in appointing a receiver and granting and continuing an injunction against the defendant, as the evidence adduced was insufficient in law and iri fact to warrant the appointment of a receiver or the granting of an injunction.
    2. The learned court erred in not passing upon the exceptions filed to Ms finding of facts and law separately.
    3. The learned court erred in dismissing the defendant’s exceptions to the court’s findings of facts and conclusions of law, and the admission and rejection of evidence.
    J. The learned court erred in his reasons stated for dismissing the exceptions filed by the defendant, as follows : “ The exceptions were argued at length before us on Monday, January 8, 1906. We have not been convinced of any error committed by the court as set out in either of said exceptions. As to the 58th exception, it may be said in support of the court’s ruling that it is not a material question under the pleadings whether the plant was worth more or less than the amount of the mortgage and the price named, $51,000, in all $70,000 to $80,000, as the defendant offered to prove, but whether or not the signature of the plaintiff was obtained tw false and fraudulent representations. The real value of the plant is not in issue, and the evidence therefore was properly excluded.”
    5. The learned court erred in his reason stated as follows : “ It was not alleged in the bill, or at any time contended by plaintiff’s counsel, that the plant was not of the value of $51,000 and the amount of the mortgage,” and the learned court erred in stating that “ the real value of the plant is not in issue, and the evidence was therefore properly excluded.”

      6. The learned court erred in decreeing as follows: “ And now, January 15, 1906, this cause came on to be further heard (on the exceptions filed) at this term and was argued by counsel and thereupon, on consideration thereof, it is ordered, adjudged and decreed that the exceptions to the findings of facts and conclusions of law and the admission and rejection of evidence be dismissed, and that the decree of the court made December 4, 1905, be and the same is hereby confirmed.”
    1. The learned court erred in refusing to dissolve the injunction and dismiss the receiver at the costs of the plaintiff.
    8. The learned court erred in appointing the Security Title and Trust Company of York, Pa., receiver of the Thomas Weir Candy Company.
    9. The learned court erred in granting an injunction against Thomas Weir as prayed for by the plaintiffs in their bill.

      Thomas H. Greevy and N. Sargent Ross, of Moss & Brenneman, for appellant.
    Fraud without resultant pecuniary damage is not ground for the exercise of remedial jurisdiction, equitable or legal; courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral: 2 Pomeroy’s Equity Jurisprudence (2d ed.), sec. 898; Marr’s Appeal, 78 Pa. 66; Eaton on Equity, 299; Bunn, Raiguel & Co. v. Ahl, 29 Pa. 387; Graham v. Pancoast, 30 Pa. 89; Rockafellow v. Baker, 41 Pa. 319; DuBois Boro. v. Waterworks Co., 176 Pa. 436.

      Henry C. Niles and Edward B. Scull, with them George E. Neff, for appellee.
    The formation of a corporation, and a fortiori a copartnership, establishes a relation of necessary trust and confidence requiring good faith, truth and frankness, the violation of which will warrant the interposition of a court of equity with the appropriate remedy : Simons v. Vulcan Oil & Mining Co., 61 Pa. 202; McElhenny’s App., 61 Pa. 188; Densmore Oil Co. v. Densmore, 64 Pa. 43; Lungren v. Pennell, 10 W. N. C. 297; Cortes Co. v. Thannhauser, 45 Fed. Repr. 730; Short v. Stevenson, 63 Pa. 95; Burns v. McCabe, 72 Pa. 309; Yeaney v. Keck, 183 Pa. 532.
    The false statement as to the cost to Weir, by which Jones was induced to enter into the confidential relationship, is in itself sufficient to cause the cancellation of the agreement and dissolution : Cortes Co. v. Thannhauser et al., 45 Fed. Repr. 730; Short v. Stevenson, 63 Pa. 95; Rich v. Black, 173 Pa. 92; McCutcheon v. Smith, 173 Pa. 101.
    April 1, 1907:
    Where a person is induced by the false representation of others to become a partner with them, the court will rescind the contract of partnership at his instance, and will compel them to repay him whatever he may have paid them, with interest, and to indemnify him against debts, etc.: Lindley on Partnership, star page, 482; Richards v. Todd, 127 Mass. 167; Howell v. Harvey, 5 Ark. 270; Ingraham v. Foster, 31 Ala. 123.
   Opinion by

Mr. Justice Potter,

The record in this case does not show that any assignments of error have been filed by the appellant, as required by rule 11. It is true that he filed in the court below a brief statement of errors, in accordance with equity rule 92, which statement has been substituted in the place of the assignments of error. But rule 92, by its terms, contemplates the filing of assignments of error in the appellate court, notwithstanding the fact that a statement of errors has been filed in the court below. This was expressly pointed out in Croasdale v. Von Boyneburgk, 206 Pa. 15, where our Brother Mestrezat said (p. 24): “No assignments of error were filed in this case and the appellee would have been entitled on motion to a judgment of non pros under rule 11. The learned counsel for the appellant misapprehended the purpose of rule 92, which requires the appellant to file in the court below a brief statement of the errors he alleges to have been made by the order or decree appealed from.’ This, however, does not relieve the appellant from his duty under rule 11 to ‘ specify in writing the particular errors which he assigns and to file the same in the prothonotary’s office ’ of this court. On an appeal, we can consider only such errors in the record as have been properly assigned under the last mentioned rule. A failure to observe either of these rules may, at the instance of the other party or on the court’s own motion, impose on the offending party the penalty of having his writ non pressed.”

In the present case, if we attempt to treat the “ brief statement of errors” as a substitute for assignments of error, we find it is not in proper form. It is defective (1) in not setting out the decree of the court totidem verbis, and in including a reference to two separate decrees; (2) in not setting out separately and in full the exceptions which it is alleged were not acted upon ; (3) in not setting out the exceptions dismissed, or the evidence admitted and rejected, and embracing more than one point; (4) in alleging as error an extract from the opinion of the court below, which is not in the decree. The opinion cannot be assigned as error. Complaint is also made of error in the final decree; but this decree merely dismissed the exceptions to a former decree, and confirmed it. Neither the exceptions dismissed nor the decree which was confirmed are set out. But in the absence of a motion to quash, and in order to end a litigation already unduly prolonged, we will treat tins appeal as though it were regularly here.

The bill alleged that plaintiff had been induced to enter into a partnership agreement with the defendant, and to pay the sum of $5,700 on account of his contribution to the firm, by false and fraudulent representations made to him by defendant. The alleged false representation • made by defendant to plaintiff, as an inducement to him to enter into the contract, and purchase a half interest upon that basis, was that he (the defendant) had paid for the plant of the York Candy Company, $51,000, “ in cold cash,” when the fact was that he had paid for it in stock of the American Stogie Company, which he had purchased for $20,000 only.

Plaintiff testified that he would not have entered into the partnership agreement or made the cash payments if he had known that the consideration for the property at York had been paid in stogie stock, and not in “ cold cash,” as represented by defendant; that he went into the business relying on the judgment of defendant in paying $51,000 for the plant, and, therefore, believed he was taking no risk in investing his money, in one-half of the interest, based on defendant’s good judgment. Plaintiff first learned on May 31 that defendant’s representations had been false, and on the same day he made a written demand for an accounting. On June 2 this bill was filed.

Under the pleadings, the case turns mainly upon the question of fact, as to whether or not the defendant did as an inducement to plaintiff to enter into the partnership and purchase a one-half interest upon that basis, represent that he paid for the York Candy Company’s plant the sum of $51,000 in “ cold cash.” It is admitted that if such a representation was made by defendant to plaintiff, it was untrue. The plaintiff was corroborated in his allegation as to this representation, by two witnesses, one being his wife, and the other a disinterested third party. The trial judge having the parties and witnesses before him, found as a fact, that the false and fraudulent representation was made. This finding was not only supported by ample testimony, but it is sustained by the weight of the evidence, and, under such circumstances, we have said many times that a finding of fact will not be disturbed by the appellate court: McPherran’s Est., 212 Pa. 425; First National Bank v. Coal Co., 210 Pa. 76; Gundaker v. Ehrgott, 209 Pa. 284; Byers v. Byers, 208 Pa. 23.

The law is well settled that where one is induced to form a partnership, by the false representation of another, the court will, upon the prompt application of the injured party, after the deceit becomes known, rescind the contract of partnership, and compel repayment of whatever sum may have been improperly obtained. See Lindley on Partnership, 2d Am. Ed. 482; Richards v. Todd, 127 Mass. 167; Ingraham v. Poster, 31 Ala. 123. The general rule is thus stated in 22 Am. & Eng. Ency. of Law (2d ed.), 209: “ Where a partner has been led into a partnership by means of fraud and deceit, he may maintain a suit in equity for a dissolution, even though he proves no pecuniary damage; or he may maintain a suit to rescind the contract, and require his partner to place him in statu quo provided, of course, he has not ratified the contract after knowledge of the fraud. And in Smith v. Everett, 126 Mass. 304, Justice Gray in discussing this principle, said: “Upon the allegations in the bill, which are admitted by the demurrer, the defendant, by false and fraudulent representations as to the extent of his business, induced the plaintiff to enter into a partnership with him for a definite period, which would make the plaintiff liable to creditors as a partner. Against such liability by reason of the defendant’s fraud, a court of law could afford the plaintiff no adequate remedy. Equity has, therefore, jurisdiction to order the partnership articles to be canceled, and to restrain the defendant from using the plaintiff’s name as a partner; and having-obtained jurisdiction for that purpose, may administer complete relief in the same suit, by ordering the defendant to repay the sums advanced or expended by the plaintiff on account of the partnership.”

During the trial defendant made an offer to prove that the plant purchased by him from the York Candy Company was worth as much or more than the amount he stated he had paid for it in cash, $51,000. But the court excluded the offer as immaterial. An exception was taken, but there is no assignment of error to the ruling, and the question is not properly before us. But counsel for appellant raise the same point in the argument by contending that if the property was worth the amount stated, no pecuniary damage was suffered by the plaintiff, and he is not, therefore, entitled to relief in this action. But the attitude of partners toward each other is one which demands implicit fairness and good faith. No man ought to be compelled to remain in partnership with one who has deceived and tricked him, at the very outset of their career and at the inception of their mutual relations.

“ The relation of partners is one' implying the highest degree of mutual confidence. By such relation each becomes the custodian, not only of the property, but to a great degree of the character and business standing of the other. For the court, therefore, in an equitable action, to uphold a contract consummated by fraud, and thus, as between the deceiver and the deceived, to bind the property and character of the latter, would seem to be not only inequitable, but oppressive. Nor should the relation be continued until the injured and deceived party has been subjected to actual loss, which he may prove in dollars and cents. When he appeals to the court for relief and establishes the fraud, he should be relieved from the hazard of a business combination into which he had been inveigled by fraud and misrepresentation : ” Harlow v. LaBrum, 82 Hun, 292 (298).

It having been determined that the contract of partnership in this case was obtained by misrepresentation, it was for the plaintiff as the party deceived, to elect whether he would be bound. He has chosen to rescind. He has testified that he would not have entered into the contract at all had he known the facts as to the purchase of the plant by the defendant. How, then, is it possible, with any justice, to enforce the contract against him in any part ? The learned court below ivas undoubtedly right in setting the contract wholly aside. As to the appointment of a receiver for partnership property, at the instance of one of the partners, this court said, in Sloan v. Moore, 37 Pa. 217, by Justice Strong, “ When a dissolution is intended, or has already taken place, a court of equity will always appoint a receiver, provided there be some breach of the duty of a partner or of the contract of partnership. See cases collected in Collier on Partnership, 354, n. 4. Indeed, it is difficult to see how the necessity of a receiver can be avoided, on the dissolution of a partnership, when the parties cannot agree as to the disposition of the joint effects, for no one has a right to their possession and control superior to that of the other.” In the present case the court below gave to the defendant every opportunity to effect a settlement with the plaintiff, but without result. Nothing remained then but to appoint a receiver. The injunction followed as a matter of course.

In 2 Lindley on Partnership, pp. 538, 539, it is said : “The appointment of a receiver always operates as an injunction, for the court will not suffer its officer to be interfered with by any one.” And in Sloan v. Moore, 37 Pa. 217, cited above, Justice Strong further said (p. 224): “ The reasons for the appointment of a receiver apply with equal force to justify the injunction. Indeed, the decree making the latter perpetual was a necessary consequence of putting the partnership property into the hands of the receiver.”

The decree of the court below is affirmed, and this appeal is dismissed at the cost of appellant.

Mitchell, C. J.,

dissenting:

The assignments of error are in violation of the rules of court and the appeal might be dismissed on that ground. But as the court has concluded to consider and decide the case I would reverse the judgment.

The value of the manufacturing plant, the subject of the controversy, was relevant and very material on the question of fraud. If the appellant in good faith believed it worth $51,000 and could show that it, or the stock he gave for it, was in fact worth that amount, then there was no actual fraud, and the representation that he had paid for it in cash was a subordinate circumstance not sufficient to rescind the purchase, though it would justify Jones in dissolving the partnership if he thought it of importance enough to destroy that confidence which the partnership relation requires. A bill for that purpose would, however, have sustained a decree for dissolution only from the filing of the bill, and with a due regard for the rights of both parties. The injunction and the appointment of a receiver were' not only irregular and improvident, but highly unjust and injurious in that they practically confiscated the appellant’s property on a charge of fraud which may have been perpetrated but which certainly was not proved and which the appellant was denied the opportunity of disproving.

Fell and Elkin, JJ., join in this dissent.


text:
    Findlay v. Philadelphia, Appellant.

      Arbitration — Referee’s findings of fact — Municipalities—Negligence.
    In an action against a city to recover damages for personal injuries resulting from a fall on a sidewalk, a referee’s finding of fact that a hole in the sidewalk, alleged to have been repaired a week prior to the accident, had not been repaired at that time, will not be reversed by the appellate court, where there has been sufficient evidence to justify the finding, and the court below has approved it.
    Argued Jan. 24, 1907.

    Appeal, No. 310, Jan. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., June T., 1901, No. 1,919, dismissing exceptions to report of referee in case of Harry C. Findlay and George Findlay, by his father and next friend, Harry C. Findlay, v. City of Philadelphia.
    Before Mitchell, O. J., Fell, Beown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of John M. Scott, Esq., referee.

      April 1, 1907:

      Errors assigned were in dismissing exceptions to report of referee.

      Harry T. Kingston, assistant city solicitor, with him John L. Kinsey, city solicitor, for appellants.

      Arthur F. Schneider, for appellees, was not heard.
   Per Curiam,

There is nothing in this case bnt a question of fact depending on the accuracy of the witnesses’ recollection of dates, plaintiff contending that there was a hole in the pavement at the time which caused the accident, and defendant that it had been repaired a week before. The referee “ had all these witnesses before him; he noted their manner of testifying, and has had the benefit of having heard the live evidence as it came from the lips of the witnesses, rather than reading their words in cold type, and he is free to say that the testimony of Mr. Lawrence — that he repaired the hole on April 8, 1904— did not impress him in point of accuracy, as to date of repair. The referee is, therefore, constrained to disregard the evidence of repair on April 8, 1904 ; and to find that from at least March 31, 1904, to and including the day of the alleged accident to the plaintiff, a defect or hole as described by the witnesses actually existed in the footway in question.” He, therefore, found that the accident was due to the city’s negligence. This finding was approved by the court and there is nothing to justify us in disturbing it.

J udgment affirmed..