author: Mr. Chief Justice Fell,

text:
    Vadas, Appellant, v. Pittsburg, McKeesport & Youghiogheny Railroad Company.

      Railroads — Lease—Liability for negligence — Acts of April 83, 1861, P. L. 410, and February 17, 1870, P. L. 31 — Municipal consent.

    1. A railroad company which has, under the authority of the Acts of April 23, 1861, P. L. 410, and February 17, 1870, P. L. 31, leased its completed road and property of every kind to another railroad company is not liable for the negligent operation of trains by its lessee.

      2. Municipal consent given to a railroad to build and operate its road within a city passes under a lease of the railroad to another railroad company, so as to make the lessee and not the lessor liable for the negligent operation of trains within the city after the date of the lease.
    Argued Oct. 20, 1910.
    Appeal, No. 103, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1906, No. 10, for defendant non obstante vere-dicto in case of Steve Vadas v. Pittsburg, McKeesport & Youghiogheny Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    At the trial the jury returned a verdict for plaintiff for $8,300. Subsequently the court entered judgment for defendant non obstante veredicto on the ground that the defendant’s lessee, the Pittsburg & Lake Erie Railroad Company, and not the defendant, was liable, if any one was liable, for the accident.

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

      L. S. Levin, with him Rody P. Marshall, for appellant.—
    That a railroad company which has leased its road, cars and engines and allows the lessee company to operate the same is liable to third persons, or the public, for the carelessness and negligence of the lessee and for defects in the construction or maintenance of the road and its equipment unless there is a statutory provision to the contrary, has been held in nearly every state in the Union. Hanlon v. Turnpike Road Co., 182 Pa. 115; Sanders v. R. R. Co., 225 Pa. 105; Alexandria, etc., R. R. Co. v. Brown, 84 U. S. 445; Harden v. R. R. Co., 129 N. C. 354; Balsley v. R. R. Co., 119 Ill. 68; Nelson v. R. R. Co., 26 Vt. 717; Braslin v. R. R. Co., 145 Mass. 64.
    The principle that the Pittsburg & Lake Erie Railroad Company had no right to operate trains under the franchise granted to defendant is decided in the case of Erie v. Erie Traction Co., 222 Pa. 43; Pittsburg v. R. R. Co., 205 Pa. 13.
    January 3, 1911:

      George E. Shaw, of Reed, Smith, Shaw & Beal, for ap-pellee.
   Opinion by

Mr. Chief Justice Fell,

The question presented by this appeal is whether a railroad company that has leased its completed road and property of every kind to another railroad company is liable for the negligent operation of trains by its lessee. The defendant, the Pittsburg, McKeesport & Youghiogheny Railroad Company, having constructed its road in 1884, leased its main and branch lines and “the plant, equipment, rights, privileges and property of every kind and nature appurtenant to said main line and branches” to the Pittsburg & Lake Erie Railroad Company for 999 years. The lessee at once entered into possession under the lease and has since operated the road. The injury complained of was caused by a collision between its trains and a wagon in which the plaintiff was riding.

The Acts of April 23, 1861, P. L. 410, and of February 17, 1870, P. L. 31, authorize railroad corporations organized under the laws of the state to lease to other railroad corporations their property of every description and give to the lessee the right to use and operate the leased property. The law governing the relation of lessor and lessee of transportation companies and the liability of the former for the negligence of the latter, when the lease has been authorized, was fully considered in the recent case of Pinkerton v. Pennsylvania Traction Co., 193 Pa. 229, where statutory authority for the lease by motor-power companies of the property and franchises of passenger railway companies was conferred by the Act of March 22, 1887, P. L. 8. In this case it was said by Mitchell, C. J., in reviewing the authorities on the subject: “The settled principles of law and the decided weight of authority are in favor of the rule that when a lease is duly authorized by law there is no further liability on the part of the lessor for negligence of the lessee in the operation of the road.”

The contention that inasmuch as the lessee had not obtained municipal consent to operate a railroad within the limits of the city where the accident happened its operation was unlawful and the lessor.was liable, is without force. The lessor in 1881 and 1883 was authorized by ordinance to build and operate its road within the city and its rights thus acquired passed to its lessee: Conshohocken Borough v. Conshohocken Ry. Co., 206 Pa. 80.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    Robb, Appellant, v. Millers Mutual Fire Insurance Company.

      Insurance — Fire insurance — Stipulation as to employment of mechanics — Waiver.
    1. Where a policy of fire insurance provides that the insurance shall be void if mechanics are employed upon the building for more than fifteen days at any one time without the consent of the company, the court commits no error in holding as a matter of law that the insurance is void, where the uncontradicted evidence shows that the owner entered upon the specific work of raising the building, that this was done with a well defined plan as a whole to be carried on from commencement to completion, that the work was given to different contractors, no one of whom exceeded the fifteen days’ limit, but that the work covered at least thirty days, not however consecutively, before its completion.
    2. In such a case the company will not be deemed to have waived the forfeiture by evidence that at the time the insurance was placed the owner told the secretary of the company of the proposed change, and that the latter said that it was all right, and that it ought to be done and pretty soon, and that it would increase the value of the property and decrease the hazard. Such language of the secretary, even if it were more than a mere, expression of his opinion, and held out as an inducement to secure the contract, would not bind the company where it appears that both the written application for insurance and by-laws of the company printed in the policy stipulated that the company should not be bound by any act or statement of an agent, unless inserted in the application, indorsed on the policy, or otherwise acknowledged in writing by the president or secretary of the company.
    Argued Oct. 20, 1910.
    Appeal, No. 111, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 569, for defendant non obstante vere-dicto in case of Harry D. Robb, doing business as the Fayette Milling Company, v. The Millers Mutual Fire Insurance Company.
    Before Fell, C. J., Mestkezat, Pottek, ElKin and Stewakt, JJ.
    Affirmed.
    Assumpsit on a policy of fire insurance. Before Davis, J.
    The opinion of the Supreme Court states the facts.
    The jury returned a verdict for plaintiff for $6,375. The court subsequently entered judgment for defendant n. o. v.

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

      L. K. Porter, of Porter & Kennedy, and Frederic W. Miller, with them John S. Robb, for appellant.
    The construction by the court is a forced construction, but even if it were not, the secretary assented and agreed to the thing complained of, thereby waiving the condition: Western, etc., Pipe Lines v: Ins. Co., 145 Pa. 346; Mc-Keesport Machine Co. v. Ins. Co., 173 Pa. 53; People’s Ins. Co. v. Spencer, 53 Pa. 353.

      G. K. Wright, of McKee, Mitchell & Alter, for appellee,
    cited: People’s Ins. Co. v. Spencer, 53 Pa. 353; State Mut. Fire Ins. Co. v. Arthur, 30 Pa. 331; Com. Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. 41; Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; Blooming Grove Mut. Fire Ins. Co. v. McAnerny, 102 Pa. 335; Beddall v. Ins. Co., 28 Pa. Superior Ct. 600.
    January 3, 1911:
   Opinion by

Mr. Justice Stewart,

This was a suit on a policy of fire insurance, resulting in a verdict for the plaintiff. A motion for judgment non obstante prevailed in the court below, and the appeal is from the judgment thus entered. In the opinion filed the plaintiff’s case was adjudged insufficient on several grounds. But one of these needs to be considered. The policy sued on contains this express stipulation, “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto shall be void .... if mechanics be employed in building, altering or repairing the within described premises for more than fifteen days at any one time.” The insurance was upon a two and a half story frame building used and occupied for milling purposes, and the machinery and fixtures therein. The policy issued May 26, 1900. We derive from plaintiff’s testimony these facts. Shortly after the policy issued various changes and improvements were made within the mill by mechanics employed for the purpose; but in none of these did the employment of the mechanics exceed fifteen days. -All these changes were made in the early months of 1901, and nothing more was done, excepting some repairs to the roof, until sometime in August, 1904, when the plaintiff entered upon the specific work of raising the main building fifteen feet, in order to supply an additional story. Mechanics were employed to do t-his work, and they were so engaged until' towards the close of the following month. The exact date of completion does not appear, but it does conclusively appear from the plaintiff’s testimony, that the mechanics were engaged in the work for more than fifteen days. It would be almost a necessary inference from plaintiff’s testimony that mechanics were engaged on this work for at least thirty days, not consecutive however, before its completion. The work involved raising the roof, a new or additional foundation, and change of the basement into practically a new story with new floors. It was all done in accordance with a well-defined plan as a whole, designed as a continuous piece of work, to be carried on from commencement to completion. The work was given to different contractors. So far as time taken for the particular work of each, no one exceeded the fifteen days limit. Upon this exhibit of the case, the interpretation of the provision in the policy above referred to, was for the court. The learned trial judge in his opinion sustaining the motion for judgment, held that the alterations and repairs from their nature, plan and design, were to be considered as a piece of continuous work from the time of beginning until completion, and that prolonging it beyond fifteen days was in contravention of the policy, except as the excess of time was allowed by the defendant company. In this conclusion we entirely agree. Any other view would defeat wholly the manifest purpose of the stipulation, and strip it of all meaning. The answer made to this is, that the stipulation was waived by the defendant’s agent at the time of the taking out of the policy. The plaintiff testified that in the negotiation leading up to the policy, he told the agent what changes he proposed to make in the building, and that with respect to each proposed change the agent, who was secretary of the company, said that it was all right. What was said between them with respect to raising the building, as derived from plaintiff’s own testimony, occurred while they were together in the basement. The plaintiff said to the agent “this place is too low, and sometime in the future we will have to raise this main part of the building up, as soon as we get able.” The agent said in reply “That’s all right; that ought to be done and pretty soon. This story is too low, there is not ventilation enough here.” After plaintiff indicated how the additional space in the basement would advantage, the agent remarked “That is all right; that will increase the value of the property and decrease the hazard. There was no conversation between them as to the time that would be required to make any one or all of these proposed changes. To allow a jury to find upon such.evidence a waiver by the insurer of the fifteen days’ limit, would be utterly beyond reason, in view of the fact, that the plaintiff nowhere says that he so understood it and acted upon the faith of it in making his improvements. The reply of the agent with respect to each of the proposed improvements, may, for all the plaintiff says, have been a mere expression of opinion as to the desirability of the change from an owner’s standpoint; if made as an inducement to the contract of insurance, it could mean nothing more than an allowance that the particular improvements referred to would not enhance the risk of the insurer. It might be that in face of such allowance by the agent, the insurer would not be justified in refusing the insured an extension beyond the fifteen days, had such extension been requested in order to complete any of the work entered upon; but this would not involve a waiver of the stipulation that no repairs should in their making exceed fifteen days. It might, as we say, conclude the insurer as to the right of the insured to make the particular repairs, without avoiding the policy on account of increased risk, were there nothing in the contract to overcome it; but that could not be the case here, for in the written applications on which the policy was issued, this appears, “It is further agreed that this company shall not be bound by any act of or statement made to or by any agent restricting or waiving its rights or varying its written or printed contracts either before or after a loss, unless inserted in this application, indorsed on the policy, or otherwise acknowledged in writing by the president or secretary of said* company.” This condition written on the plaintiff’s application was a clear statement of terms on which the defendant company was asked by the plaintiff to issue its policy. Whether he knew it was in his application or not, he must be held to have known it; for if he did not, he alone was in fault. In advance of the issuing of the policy and as a condition of its issue, he agreed that he would not hold the company to any waiver of any of the terms of the policy except as it was indorsed on the policy or otherwise acknowledged in writing. Furthermore, this same stipulation or condition, is recited in the by-laws of the company, a copy of which is printed in the policy, so that the insured both before and after accepting the policy had notice of such requirement. Under such circumstances, conceding a waiver by the agent, the plaintiff would be in no situation to enforce it. But there was no waiver. The plaintiff’s case showing positive noncompliance with the condition of the policy in the particulars discussed, and no sufficient excuse appearing, the case was not one for the jury. It is unnecessary to discuss other features of the case.

The assignment of error is overruled and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Way, Appellant, v. Fraser.

      Landlord, and tenant — Lease—Contract to make lease — Evidence— Rental.

    1. An action for a breach of contract to make a lease cannot be sustained by a letter written by the defendant to the plaintiff expressing a willingness to make a lease for three or five years at a rental named but without mentioning other usual stipulations in leases, and asking the plaintiff to let him know soon if this offer interested him, and by a letter from plaintiff to defendant inclosing a form of lease containing numerous terms and conditions in no way referred to in defendant’s letter, and by a further letter from defendant to plaintiff stating that he would “not be open for a lease at this time.”

      Landlord, and tenant — Parol lease — Statute of frauds — Evidence.
    2. A parol offer to lease a property for three years at a rental named followed by a submission to the proposed lessee of a form of written lease containing numerous terms and conditions not mentioned in the parol agreement, which form of lease was never executed by the proposed lessee, is not an acceptance in accordance with the terms of the parol offer and does not meet the requirements of the statute of frauds, and is, therefore, invalid.

      Argued Oct. 21, 1910.
    Appeal, No. 112, Oct. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Allegheny Co., April T., 1909, No. 301, for defendant on demurrer to statement in case of William A. Way, Frederick Way for the use of William A. Way et al., v. W. P. Fraser.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Demurrer to plaintiff’s statement of claim.
    Fraser, P. J., stated the facts to be as follows:
    Plaintiffs are the owners of a four-story brick warehouse at No. 439 Liberty avenue, Pittsburg. Defendant, with W. B. Loveless, contemplated engaging in the wholesale shoe business in the city of Pittsburg, and with a view to leasing the property of plaintiffs for a place of business Mr. Loveless had a conversation with William A. Way, one of the plaintiffs, acting for himself and as agent for his coplaintiffs, which conversation was followed by a letter from Mr. Loveless to Mr. Way, dated December 30, 1904, and is as follows :
    “I did not get the opportunity yesterday to call you up after I had talked with my partner. We do not feel that we care to obligate ourselves for a longer lease than three years or five at the rent offered, viz., $4,000.
    “If this offer interests you let me know sometime soon, as we want to get the matter off our hands. We have two or three locations under consideration, but I prefer your place myself.”
    The property referred to in the letter quoted being the warehouse of plaintiffs at No. 439 Liberty avenue. Following the receipt of the foregoing letter by Mr. Way he and Mr.- Loveless had a second conversation, and Mr. Way agreed to lease the warehouse to Messrs. Loveless and Fraser for three years, from April 1, 1905, at an annual rental of $4,000. Thereupon, on December 30, 1904, Mr. Way prepared and mailed to Mr. Loveless a' lease for the premises with which he inclosed a letter which reads as follows:

      “I have received your letter of the 30th inst. regarding lease of building at No. 439 Liberty Street, and confirming my conversation with you this morning, I beg to hereby accept your proposition, and inclose leases of the building to you and Mr. Fraser for three years at the rate of $4,000, the amount suggested in your letter. Kindly have one of these leases signed by yourself and Mr. Fraser and the signatures duly witnessed and return the same to me as soon as possible. We will note that in the lease I have excepted the right of Forner & Pur-viance to remove the office fixtures which belong to them, and I call your attention to this now so that there may be no misunderstanding on this point. If you desire me to take up with Messrs. Forner & Purviance for you, the matter of purchasing these office fixtures I should be glad to see what could be done. I have not told them who the new tenant is, and possibly I could make a better arrangement for you than you could make.”
    On January 13, 1905, the leases prepared by Mr. Way were returned to him by defendant unexecuted, with a letter as follows:
    “After conferring with Mr. Loveless we have decided to both take a much needed rest before going ahead with the jobbing business, and will, therefore, not be open for a lease at this time.”
    No further conversation or correspondence was had between the parties. Plaintiffs’ contention is that the conversation between Messrs. Loveless and Way, together with the letters of December 30, 1904, constitute a lease between plaintiffs and defendant for the Liberty avenue property for three years at the annual rental of $4,000, and that defendant (Mr. Loveless having since died) is indebted to plaintiffs on account of such lease in the sum of $11,142.84, with interest from April 1, 1908, being the balance due for the full term of three years after deducting the amount realized by plaintiffs from temporary tenants during the term. Attached to plaintiffs’ supplemental statement is a copy of the lease and duplicate prepared by Mr. Way and mailed to Mr. Loveless. These leases provide, inter alia, that lessees shall take the property "subject to the right of present tenants to remove office partitions and fixtures;” that the property shall be used fop no other purpose than the wholesale shoe business; that the rental shall be payable monthly in advance, and that the lessées shall make all necessary repairs at their own expense.
    January 3, 1911:
    To plaintiffs’ amended statement defendant demurs, alleging (1) that the statement sets forth no complete contract for leasing the premises described; (2) the conversations alleged to have taken place between Mr. Way and Mr. Loveless as to a lease for three years from April 1, 1905, could not constitute a lease or contract for the making of a lease for such period, and (3) the written leases submitted by Mr. Way contained conditions and provisions which it is not alleged defendant authorized Mr. Loveless to agree to or accept.

      Error assigned was in entering judgment for defendant on demurrer.

      James R. Sterrett, of Patterson, Sterrett & Acheson, for appellants.
    As to the sufficiency of the letters to constitute a contract see: Weaver v. Wood, 9 Pa. 22®; Watson v. O’Hern, 6 Watts, 362; Moore v. Miller, 8 Pa. 272; Bussman v. Ganster, 72 Pa. 285; Kaufmann v. Liggett, 209 Pa. 87.
    In any event the contract is not required by the statute to be signed by the tenant; the signature of the lessor is sufficient to satisfy the statute. This position is established by the cases of Christy v. Brien, 14 Pa. 248; Tripp v. Bishop, 56 Pa. 424; Pittsburg Mfg. Co. v. Title & Trust Co., 207 Pa. 223.

      George E. Alter, of McKee, Mitchell & Alter, for appellee.
   Opinion by

Mr. Justice Elkin,

On demurrer the learned court below entered judgment for defendant from which judgment so entered this appeal was taken. Appellants contend that their theory of the case was misapprehended in that it was treated as a suit on a lease when it was only intended as a suit for the breach of a contract to make a lease. It is perfectly clear, however, that no matter whether the suit was on an executed lease or on a contract to make a lease which in point of fact was not executed, the burden was on plaintiffs to aver sufficient facts to show a valid consummated contract. As we view the case this burden was not met. The correspondence between Loveless, Way and Fraser, set out in the statement of claim and relied on by appellants, falls far short of constituting either a contract of lease or a contract to lease. We agree with the learned court below that the Loveless letter was only an expression of his willingness to negotiate for a lease and was not a definite offer containing the terms and conditions upon which he would lease the property. The most casual reading of the letter shows that further negotiations were intended and no final conclusion had been reached. He expressed his willingness to make a lease for three or five years at the rental suggested and asked Way to “let me know sometime soon” if this offer interested him. These words do not import finality but do suggest further negotiations. Nothing was said as to the time when possession was to be given, or whether the rental should be paid monthly or yearly, what kind of business should be conducted, whether the lessee should have the right to sublet and how the rent should be secured. All of these matters, important in every contract of lease, were clearly intended to be taken up and determined by'the parties when the final agreement was made. When, therefore, Way took upon himself the right to execute a lease with all of the terms and conditions stipulated he assumed to act before any final agreement had been consummated. Loveless was not bound to accept the lease thus prepared by Way and he did not do so. So far as the letters show Loveless never did enter into a final agreement to lease the property in question. Fraser notified Way in writing that they had concluded not to go into business and would “not be open for a lease at this time.” Here was positive notice before any final agreement had been reached so far as is disclosed by the letters relied on that the parties who were negotiating for a lease had concluded not to make it. The conclusion is irresistible that the appellants failed to make out a case showing a contract by the writings set up. It is contended, however, that Way had a conversation with Loveless during the time the negotiations were pending and that Loveless had agreed to make the lease. If this parol agreement is relied on, it is invalid because clearly within the statute of' frauds. The averment is that Way “had a conversation with W. B. Loveless and agreed with him on a lease for said property to W. B. Loveless and W. P. Fraser for three years at four thousand ($4,000) dollars per year.” This is a positive averment that a lease of the property had been agreed upon in that conversation and it follows as of course that this suit is based upon the breach of the contract set up. The parol contract set up was a lease of the property for a term of three years. Such a contract, if made by parol, is within the statute of frauds and therefore invalid. It is argued, however, that the conversation relied on was in the nature of a verbal offer to lease and the acceptance by the lessor who executed and tendered a lease in writing meets the requirements of the statute. This would be true if the acceptance was unconditional and in compliance with the terms of the offer. In the present case the acceptance was not unconditional nor was it in accordance with the averments set out in the statement as above indicated. The averment is that Loveless agreed with Way on a lease for three years at $4,000 per year. The import of these words is an annual rental and a three-year term. The so-called acceptance was an executed lease stipulating a monthly rental in advance and many other terms and conditions which it is not even averred were agreed upon. The proposed lessees were not bound by a lease containing terms not agreed upon and not in accordance with the alleged parol offer.

We are of opinion that the averments are not sufficient to show a valid binding contract to lease the property or an executed agreement of lease accepted according to the terms of the offer. In either event the record fails to disclose a good cause of action.

The case was very thoroughly considered by the learned court below and we coneur in the views there expressed.

Judgment affirmed.


author: Per Curiam,

text:
    Reich’s Estate.

      Trusts and trustees — Misconduct—Commissions—Counsel fees — Decedents’ estates.

    Where trustees keep no books of account, and the account filed by them is so grossly inaccurate as to require three successive corrected statements, and an accounting is only reached by compulsion, and where’ it also appears that only a small portion of the income was applied to the maintenance of the testator’s widow as directed by the will, and most of it was appropriated to the permanent improvement of real estate in which the accountants had an interest in remainder, the trustees will not be entitled either to commissions or counsel fees.
    Argued Oct. 21, 1910.
    Appeal, No. 116, Oct. T., 1910, by Gustave A. Reich et al., from decree of O. C. Allegheny Co., June T., 1909, No. 59, dismissing exceptions to adjudication in Estate of Conrad Reich, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Hawkins, P. J., filed the following adjudication:
    The question involved here is the true balance of income due testator’s widow as tenant for life. Mr. Reich died March 3, 1896, leaving a will by which he gave his estate to the executors in trust for his wife, Gertrude, for life provided she should remain his widow and in the event of her remarriage his effects should be sold and she given the third of the proceeds. A legacy of 82,000 was given his daughter, Mrs. Oestreich, and the residue to his sons, Gustave, William and Louis. Gustave and Louis were made executors and assumed the duties of the trust. No accounts were filed until under compulsion in 1909, and upon the audit of these accounts it appeared that no books had been kept; but classified reports, deposit books, checks and receipts were produced from which the accounts were made up. In the settlement of the trust estate three amended statements were-successively made after the evidence had developed errors in the previous statement. The final analysis showed that the trustees had received:
    (1) Corpus:
    Personal estate. $7,566.96
    Appreciation of stock. 1,600..00
    Return premium. 81.29
    $9,248.25
    (2) Income:
    $1,388.39 Interest. .
    880.00 Dividends,
    29,192.14 Rents. ...
    $31,460.53
    Less adm expenses. $16,679.47
    Paid Mrs. Reich. . . 5,302.62 21,982.09 9,478.44
    ' $18,726.69
    Among the items of expenses of administration are:

      1911.] Adjudication.
    Accountant’s commission. $1,500.00
    (which were said to have been forfeited by misconduct).
    Attorney fees. 400.00
    (which were objected to as being excessive) and
    Agent’s commission for collecting rents. . . 1,231.70
    (which werp objected to because one of the executors received half of these commissions as partner in the agency firm).
    The evidence does not show what services were rendered by counsel. They were allowed $200 in the audit of the administration account.
    Of the corpus of the personal estate the trustees invested in betterments of the
    real estate. $8,657.25
    And of the balance of income. 9,478.41
    $18,135.66
    This was done with the consent of Mrs. Reich who, however, was incompetent to transact business and was under the influence of the executors during the period covered by these betterments. There was however no release of her right to the income used for this purpose until the present proceeding was pending and this release was made without any consideration and without comprehension of its effect.
    1. Compensation is allowed to the faithful steward for his care, trouble, and responsibility in the management of the estate. The decisions differ somewhat as to what amount of negligence or misconduct will deprive a trustee of his commissions. The Supreme Court has been more lenient in some cases than in others. But it seems well settled that where there has been a willful disregard of the duties of the trust, where there has been gross laches in filing an account and settlement is made only under compulsion; where no books are kept and a very unfair exhibit is made in the account; and where the trustee has converted trust assets to his own use, no compensation will be allowed: Norris’s App., 71 Pa. 106; Wistar’s App., 54 Pa. 60; Bond’s App., 2 Penny. 241; and the present case falls within this line of exclusion. There was gross laches and compulsion in accounting; there were no account books kept; the account filed was so grossly inaccurate and confusing that during the course of the audit the trustees voluntarily filed three successive corrected statements, the last of which was on its face inaccurate; and nearly two-thirds of the income to which the widow was entitled was appropriated by the trustees to the permanent improvement of real estate in which they had an interest in remainder. Mrs. Reich certainly ought not to be expected to compensate the misconduct of her trustees. It is a hardship that she has been subjected to the expense, trouble and delay of the litigation which that misconduct caused.
    2. Nor is the credit for $400 counsel fees entitled to allowance in the absence of proof of services rendered beneficial to the estate. The course of administration pursued by the trustees was not such as they would have advised. The successive statements voluntarily filed by the trustees during the course of the investigation were made necessary because the first account failed to exhibit the true condition of the trust. If these acts were done under the advice of counsel the services of counsel cannot be said to have been beneficial to the estate.
    3. It seems very clear that assuming Mrs. Reich was competent to transact business her consent to the investment of part of her income in the improvement of decedent’s real estate cannot be construed as a gift. The trustees were in duty bound to invest surplus income and the natural inference would be, in the absence of words importing a gift, that they were making such investment. The trustees seem' to have admitted this when they induced their mother to sign a written release pending the litigation. It is immaterial that no evidence of loan was given; for it was their duty to have given it; and the trust fund is traceable into the land. The release secured from Mrs. Reich is worthless as having been obtained by undue influence. Aside from Mrs. Reich’s legal right there are strong equities underlying the case. Mrs. Reich, since her husband’s death, has been living with her daughter, Mrs. Oestreich; for most of the time she was a paralytic; her maintenance, care and nursing has been onerous, and the compensation allowed by the trustees, instead of being liberal, as the income justified, was paltry. She was at least entitled to fair treatment and it was not fair to use for the improvement of the real estate in which they had interest in remainder income which should have been used to relieve Mrs. Oestreich of the burden of support. If anybody was entitled to a preference, she was.
    January 3, 1911:
    The surplus income will be treated as having been invested in decedent’s real estate for the benefit of the widow and as no mortgage was given the trustees will be ordered to do so now.
    4. While the investment of corpus personalty in real estate was beneficial to the trustees as tenants in remainder, there was no apparent loss to the widow. The security is admittedly good and the income was maintained.
    The court dismissed exceptions to adjudication.

      Error assigned was in dismissing exceptions to adjudication.

      E. W. Arthur, with him W. S. Thomas, for appellants, cited:
    Myers v. Bryson, 158 Pa. 246; Bechtel’s App., 7 Pa. Superior Ct. 451; Miller’s Est., 17 Phila. 433; Hess’s Est., 11 Pa. Dist. Rep. 397.

      H. M. Scott, for appellees.
   Per Curiam,

The order of the court dismissing exceptions to the adjudication is affirmed for the reasons stated in the opinion of the learned president judge of the orphans’ court.


text:
    Sarver v. Sarver, Appellant.

      Deed — Fraud—Equity—Evidence—Confidential relation — Inadequacy of price.

    A deed from one brother to another for an undivided interest in real estate which had descended to the grantor and grantee and their brothers and sisters from their father will be set aside, where it appears that the value of the undivided interest was $8,500, and the cash consideration paid was $83.00, that the grantor had long been away from home leading a wandering life, and had no knowledge of the value of his share, that the grantee secretly discovered his whereabouts, and intentionally establishing a confidential relationship^ secured the deed by fraudulent representations as to the value of the land, and then secretly got the grantor away and withheld all information as to the transaction from his brothers and sisters for a considerable length of time.
    Argued Oct. 21, 1910.
    Appeal, No. 122, Oct. T., 1910, by defendant, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1909, No. 645, on bill in equity in case of Howard Sarver v. Allen Sarver.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ..
    Affirmed.
    Bill in equity for a reconveyance.
    Davis, J., filed the following opinion:
    This bill is filed by plaintiff against defendant to compel- the reconveyance of certain real estate, alleging that such conveyance was procured by fraudulent representations to plaintiff at the time of the conveyance.
    From the pleadings and testimony the following facts are found:
    1. That the plaintiff and defendant are brothers, and in the year 1906 they each became seized by right of -inheritance in and to the undivided one-sixth part of two certain pieces or parcels of land, one containing thirty acres, situate-in the first ward of the borough of North Braddock, the other situate in the second ward of the borough of Braddock and fronting twenty feet on Brad-dook avenue, and extending back a distance of 120 feet.
    2. That the plaintiff on June 11, 1909, conveyed his one-sixth interest in and to the above-described pieces of real estate to the defendant for the actual cash consideration of $83.00. That the defendant intended to take an unrestricted fee simple title in and to the said real estate, and that the value of said one-sixth interest of plaintiff at the time of the conveyance was $8,560. That plaintiff made tender of said $83.00 and demanded a re-conveyance.
    3. That the plaintiff, at the time of the conveyance was wholly ignorant of Ms rights in the premises or of the actual value of the property in question, and that no information was given to him on which he could be reasonably expected to have any sufficient knowledge of the actual value.
    4. That he had been absent from home about eighteen years and his whereabouts unknown the most of this time to his family, except the defendant. That plaintiff was what might properly be called a ne’er-do-well and drifted from place to place.
    5. That on the death of his father in 1906, when plaintiff came into his said inheritance, the defendant agreed with the other heirs to advertise for the plaintiff, and if any knowledge came it should be imparted to the other heirs. That such advertisements were made. That defendant stated to some two or three of the other parties in interest that his brother was ignorant of his rights, and if he could be found his interest could be bought for “a trifle” or “a song.”
    6. That the defendant then undertook secretly to find the plaintiff, and wrote a number of letters to points where he thought he might possibly be found, finally locating him at Winchester, Virginia. That defendant then wrote plaintiff stating merely that there was some money coming to bim from the estate of his parents, and on request, sent plaintiff $8.00 to come to the residence of defendant at Braddock. The plaintiff arrived on the morning of July 11, 1909, and without any delay; without notice to the other heirs; without, according to defendant’s own testimony, giving the plaintiff any sufficient knowledge of his rights, an agreement was made and carried into effect the same day, and $250 paid for plaintiff’s entire interest in his personal and real estate, and the plaintiff, to say the least, was permitted to depart from whence he came.
    7. The following, in addition to the foregoing facts, is found: That as an inducement for the making of the recited agreement, for the conveyance of plaintiff’s entire estate, defendant represented to plaintiff in making his offer of $150 for the real estate, that it was not worth much more; that it needed repairs and the taxes were heavy, and it took all the rent to pay the taxes.
    8. That at the time of the execution of the deed, in pursuance of this agreement, and at the office of the attorney who prepared the papers, no sufficient knowledge was given to plaintiff of the values of the property he was conveying. This especially appearing when the attorney himself says — “it was clear in my mind that he did not understand the effect.”
    9. That defendant’s intention was to establish a confidential relation with his brother, and in his dealings with the plaintiff placed himself on high moral ground that would naturally lead plaintiff to repose trust and confidence in his, the defendant’s, fairness and desire to do right.
    CONCLUSIONS OF LAW.
    1. That the defendants’ acts and course of dealing, invited trust and confidence, and placed him in a position of confidential relationship with the plaintiff that required him to act in good faith and inform plaintiff fully in reference to all his estate, both real and personal. '
    2. That the conveyance of the property in question was obtained by defendant from plaintiff in a fráudu-lent manner, and in utter disregard of the rights of plaintiff.
    3. That defendant has no right to hold further title to the said real estate.
    4. That the plaintiff has the right to have the real estate described in the bill reconveyed to him forthwith, free from incumbrances suffered or done by the defendant.
    DISCUSSION.
    The plaintiff in this case seems to contend that the inadequacy of the consideration is so strong, gross and manifest that it raises a presumption of fraud, and that this transaction should be set aside for that reason alone.
    The consideration is so grossly inadequate, namely, one per cent of the actual value, that it casts of itself a very grave suspicion on the whole transaction.
    It is the law, however, in Pennsylvania, that inadequacy of price alone is not sufficient to set aside an executed conveyance: Davidson v. Little, 22 Pa. 245; Phillips’ Est. (No. 2), 205 Pa. 511.
    A person may, with full knowledge of what he is doing and acting on equal terms with the person whom he seeks to favor, give his property away for a nominal consideration, or no consideration; and if he should rue his act he has no remedy, for he has knowingly and willingly placed himself in that position and must abide by the consequences.
    That is not the case we have at bar, as will appear from the findings of fact.
    The plaintiff was a good deal of a nomad, of little education, apparently somewhat given to the use of intoxicants — as indicated in some parts of his testimony; in impecunious circumstances — as shown by the sending by defendant of the $8.00 in order that he might come on to procure some money from his father’s estate; in total ignorance of his property rights, and the value thereof, and in addition to this, his brother, the defendant, had a full knowledge of his property, his character and circumstances, and had made declarations that his brother was ignorant of his rights in the property, and if he could be found his interest could be bought for a trifle or a song. He had also given his consent that advertisements should be made to locate him, and then took steps secretly to locate him; he had assumed a high moral stand in his letters that would lead plaintiff to repose trust and confidence in him; he proceeded with haste to close the matter, obtaining the real estate for a less sum than he had offered; he withheld — according to his own testimony — the actual value of the property; he falsely represented its value as now found as a fact; he caused or permitted plaintiff to depart within a few hours after his arrival, and withheld all information from his brothers and sisters until he had — as he thought — gotten absolute possession and control of plaintiff’s property.
    When these facts and circumstances are ail considered, in connection with the absolutely striking gross inadequacy of price, amounting almost to a total failure of consideration, it can lead to but one conclusion, that the plaintiff and defendant dealt on such unequal terms, and the whole action of the defendant in the premises is so tainted with fraud that immediate reparation should be made and a reconveyance of the real estate should be ordered.
    Let a decree be drawn accordingly.

      Error assigned was decree enjoining a reconveyance.

      Horace J. Thomas, of Thomas & Meals, for appellant, cited:
    Davidson v[ Little, 22 Pa. 245; Phillips’s Est., 205 Pa. 511; Good’s Est., 227 Pa. 389; Nulton’s App., 103 Pa. 286; Penna. R. R. Co. v. Shay, 82 Pa. 198; Martin v. Berens, 67 Pa. 459; Graham v. Pancoast, 30 Pa. 89; Funs-ton v. Twining, 202 Pa. 88; Coleman’s Est., 193 Pa. 605.

      Francis S. Bennett and John K. Bonn, for appellee,
    were not heard, but cited in their printed brief: Davidson v, Little, 22 Pa. 145; Whelen v. Phillips, 151 Pa. 312; Cummings’s App., 67 Pa. 404; Stepp v. Frampton, 179 Pa. 284; Worrall’s App., 110 Pa. 349; Clark y. Clark, 174 Pa. 309.
    January 3, 1911:
   Per Curiam,

The decree of the court is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Potter,

text:
    United Electric Light Company v. East Pittsburg Borough, Appellant.

      Boroughs — Ordinances—Electric light company — Extending time limit fixed, by ordinance — Resolutions.
    1. Where a borough by ordinance has granted to an electric light company the right to erect poles and string wires along the borough streets to be exercised within a specified time, the borough cannot subsequently extend the time limit by a mere resolution not presented to the burgess for approval, nor duly recorded and advertised. Such an extension can only be effected by an ordinance; but where the borough has in no way insisted upon a strict compliance with the ordinance as to time, but has only objected that a proper bond has not been filed, the borough will not be permitted to enforce a forfeiture of the grant by removing the poles and wires on the ground that the company failed to observe the original time limit.
    2. In such a case where it appears that the electric light company had made continuous efforts in good faith to furnish a bond satisfactory to the borough, the court will restrain the borough from removing the poles and wires, but will require the company to execute and deliver within a time specified the bond required by the ordinance.

      Appeals — Assignments of error — Equity—Exceptions.
    3. Assignments of error to the answers and findings of the trial judge in an equity suit made before the filing of exceptions are improper. Assignments in such a case should be to the final action of the court upon exceptions to the rulings of the trial judge.
    Argued Oct. 21, 1910.
    Appeal, No. 123, Oct. T., 1910, by defendant, from decree of C. P. No. 4, Allegheny Co., First Term, 1909, No. 288, on bill in equity in case of United Electric Light Company v. East Pittsburg Borough.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Swearin-gen, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The final decree of the court was as follows:
    And now, April 27, 1910, this cause came on to be further heard, and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.:
    1. That the borough of East Pittsburg, defendant, its officers, agents and employees, be and they are hereby perpetually restrained and enjoined from damaging, destroying or in anywise interfering with the electric light poles of the United Electric Light Company, plaintiff, now erected along Terrace and Braddock avenues of East Pittsburg.
    2. That the borough of East Pittsburg, defendant, its officers, agents and employees, be and they are hereby perpetually restrained and enjoined from interfering or attempting to interfere with the United Electric Light Company, plaintiff, its officers, agents, or employees, in the erection of electric light poles, or the digging of holes therefor, along the streets or highways of the borough of East Pittsburg, or in placing wires or other appliances on said poles, necessary for the completion of its electric lighting system, as provided by ordinances hereinafter mentioned.
    3. That the United Electric Light Company, plaintiff, shall, on or before June 1, 1910, maleé, execute, and deliver to the borough of East Pittsburg and its successors, a trust company bond in the sum of $3,000, conditioned for the faithful performance of all the conditions of Ordinance No. 243 of said borough, approved July 31, 1907, as amended by Ordinance No. 252 of said borough, approved January 4, 1908.
    4. That the borough of East Pittsburg, defendant, shall pay the costs of this proceeding.

      Errors assigned were (1-36) various findings of fact and conclusions of law; (37) the final decree of the court as above, quoting it.

      Joseph F. Mayhugh, for appellant.
    An ordinance cannot be amended by a mere motion. Nor can it be amended by a resolution, unless that resolution is passed with all the solemnities and legal requirements incident to the passage of ordinances: Winton Boro. v. Mulhern, 3 Lack. L. N. 264; Jones v. Light Co., 202 Pa. 164; Sower v. Phila., 35 Pa. 231; Howard v. Swissvale Boro., 52 Pitts-burg L. J. 260.
    If the work was not completed and the company was not ready to furnish light to the residents of East Pitts-burg borough on or before August 13, 1908, the time limit of said ordinance, and if the defendant is right in its contention that said time limit was not extended, but expired on August 13, 1908, the plaintiff’s case fails: Keystone State Tel. & Tel. Co. v. Ridley Park Boro., 28 Pa. Superior Ct. 635; Allegheny City v. Ry. Co., 159 Pa. 411; Plymouth Twp. v. Ry. Co., 168 Pa. 181.
    The condition as to the bond was not complied with: Lewistown Boro. v. Telephone Co., 10 Pa. Dist. Rep. 562; Freeport Water Co. v. Freeport City, 180 U. S. 587 (21 Sup. Ct. Repr. 493).

      Joseph A. Langfitt, with him H. W. McIntosh, for ap-pellee.
    Forfeiture is not a favorite of the law. Acquiescence in acts inconsistent with it will readily dispense with a right to claim it: Lauman v. Young, 31 Pa. 306.
    The action of counsel in passing the resolution was ministerial or administrative in character, and not legislative, and hence did not require the approval of the burgess: Com. v. National Bank, 9 Pa. Superior Ct. 118; Shaub v. Lancaster, 156 Pa. 362; Jones v. Light, etc., Co., 202 Pa. 164.
    January 3, 1911:
    The acts of the appellant amounted to a waiver of the conditions of said contract by implication, and in the light of the said resolution of June 9, particularly a waiver of the one year limitation: Newport News v. Potter, 122 Fed. Repr. 321; Messenger v. Buffalo, 21 N. Y. 196; Randolph County v. Post, 93 U. S. 502; Bradford v. Tel. & Teleg. Co., 206 Pa. 582; Beadles v. Smyser, 209 U. S. 393; Jordan v. Ry. Co., 25 Pa. Superior Ct. 564; Phila. v. Gilmartin, 71 Pa. 140; Ephrata Water Co. v. Ephrata Boro., 16 Pa. Superior Ct. 484.
   Opinion by

Mr. Justice Potter,

This is a proceeding in equity by the United Electric Light Company against the borough of East Pittsburg, Allegheny county. The complainant sought to restrain the borough from interfering with its electric light poles erected, and to be erected, along the borough streets and from interfering with the completion of its electric lighting system. From the findings of fact by the court below it appears that the plaintiff company was merged with the East Pittsburg Electric Light Company, and succeeded to all the rights, powers and privileges of that company. That by ordinance approved July 31, 1907, the borough of East Pittsburg granted to the East Pitts-burg Electric Light Company, its successors or assigns, the right to erect poles and string wires along the streets and highways of the borough for the. purpose of supplying light, heat and power to the public. The grant was made upon certain terms and conditions, among which were that the corporation should place its poles and other appliances in such- manner and location as the street committee or the borough engineer should designate; that it should compensate the borough for the occupation of its streets and pay an annual license of $1.00 per pole and $2.00 per each mile of wire; that at the time of the acceptance of the ordinance, it should file a trust company bond in the sum of $3,000, conditioned for the faithful performance of all the conditions of the ordinance; before entering upon the streets it should pay to the said borough the sum of $500; that the ordinance should not be in effect until accepted in writing within thirty days from the date of passage; that unless the corporation should be ready to furnish electricity to the residents of said borough within one year from the date of the acceptance, the ordinance should become null and void and the bond forfeited.

On August 13, 1907, the Electric Light Company accepted the ordinance and sent the borough a trust company bond for the amount required. The bond was not approved, and on September 5 was returned to the company. Various propositions and counterpropositions with regard to the form of the bond were submitted, but the company and the borough were never able to agree upon a form of bond mutually satisfactory, and no bond submitted by the company has as yet been approved by the borough. On May 18, 1908, the company wrote the borough that it was ready to begin the construction of its pole lines, and inclosed a certified check for $500 in payment of the amount stipulated in the ordinance to be paid before it should enter on the streets. This money was accepted, and has been retained by the borough. About May 25, upon request of the company, the street committee of the borough council went over the streets with the company’s president, and located the places for the poles. Some ten days later, the borough engineer went over the lines, set stakes and made a plan. In June the president of the company reported to some of the members of council that negotiations were in progress with another light company for the use of poles which had already been erected in the borough, which negotiations if successful would avoid the necessity of erecting additional poles in the streets. He therefore requested an extension of time for the completion of the work of construction. In response to this request, on June 8, at its regular meeting council adopted a resolution giving the company an extension of ninety days on its ordinance. This resolution was never presented to the burgess for approval nor was it published as ordinances are. The company was notified by the president of council that the resolution had been adopted.

The court below finds as a fact that between June 9 and August 13, there was ample time to have finished the construction of the plant, but relying on the extension of time by the borough council, the company delayed work until after the latter date. About October 25 the company began the work of erecting its poles, and was nearly through with it, when upon November 3, it was notified by the secretary of council that the poles were being illegally placed, because no bond had been filed; and notice was given to remove the poles within ten days.

Upon the facts as found by the court below an injunction, as prayed for, was awarded against the borough and its officers, restraining them from interfering with the electric light company in the erection of its poles; but requiring the complainant to execute and deliver to the borough a bond in the sum of $3,000, in accordance with the requirements of the ordinance. From this decree the borough has appealed, and its counsel has filed thirty-seven assignments of error, all of which except the last are informal in that they do not show the action of the court below upon any exceptions to its rulings. The assignments should be to the final action of the court upon exceptions to the rulings of the trial judge. Each assignment should show an exception filed, and the disposition made of it by the court. In the present case all the assignments except the thirty-seventh are to the answers and findings of the trial judge made before the filing of exceptions; and the answers thus made are not, under equity rule 67, assignable for error. The thirty-seventh assignment is however to the final decree of the court below, and under it the questions raised by this appeal may be considered.

The first matter urged upon us is that the work authorized by the ordinance was not completed within the time limit fixed. This period expired August 13, 1908, and unless there was a valid extension of the time, or a waiver on the part of the municipality, the privileges granted by the ordinance became void. We do not agree with the court below, in its statement that time was not essential to the grant. Extending the time limit fixed by the ordinance, was in the nature of an amendment, and this can only be properly made by the passage of another ordinance, in a formal way. “In general, power to amend a by-law or ordinance is to be exercised in the same mode as power to enact. . . . An ordinance cannot be amended by mere resolution or motion, but only by another ordinance enacted with like formality as the original ordinance:” 28 Cyc. L. & Pr. 380, 381. And in a note to the above it is said: “Thus an ordinance cannot be amended, repealed or suspended by an order or resolution or other act by a council of less dignity than the ordinance itself.” “An ordinance cannot be amended or repealed by resolution which is usually recognized as a law of inferior grade: ” 2 Abbott on Mun. Corp. (1906), sec. 548, p. 1362. “An ordinance can be amended only by an ordinance and not by resolution; only by an act of the same grade:” 1 Smith on Mun. Corp., sec. 543. “It is well settled that an ordinance cannot be repealed or amended or suspended by a resolution:” People v. Latham, 203 Ill. 9, 23; Chicago, etc., Ry. Co. v. Salem, 166 Ind. 71, 76; Cascaden v. Waterloo, 106 Iowa, 673, 682. But in its final conclusions of law the court below does not rest on the ground that the borough council had the power to extend the time limit, by resolution not presented to the burgess for approval, nor duly recorded and advertised, but says that: “by reason of the acts of the defendant and the circumstances, which are set forth in the findings of fact, the defendant is estopped from interfering with the rights of the plaintiff.”

We are satisfied from a careful examination of the evidence that throughout the controversy, the borough was not insisting upon a strict compliance with the ordinance as to time, but its chief contention was as to the bond. When the electric light company accepted the ordinance in August, 1907, it accompanied its acceptance with a bond which unquestionably was prepared and tendered by it in good faith as a compliance with the condition of the ordinance. This bond was, on August 19, presented to the council along with the acceptance, and was referred to the borough solicitor. On September 3, the solicitor made an unfavorable report on the bond and it was returned to the company. On September 10, the company wrote the secretary of the council, requesting that the borough solicitor draw up a bond in a form satisfactory to council, and saying that such bond would be properly executed and filed. On November 14, the company wrote directly to councils repeating the request and expressing its anxiety to have the matter of the bond definitely determined. On November 23, the secretary of council wrote to the light company suggesting an interview between its representatives and the solicitor to discuss the form of bond to be given. On December 2, an ordinance was adopted by council amending the former ordinance which was approved by the burgess on January 4, 1908, and recorded January 7. Subsequently the borough solicitor, after consultation with a representative of the trust company that was to be surety, prepared a bond which was executed and presented on May 18 to the council, together with a check for the $500 cash payment required by the ordinance. The check was accepted and the money held by the borough up to the date of the trial, when it was tendered in court to the plaintiff company. The bond "was referred to the borough solicitor, who was not the same person as' the solicitor who had drawn the form, a change having taken place in the office. The new solicitor disapproved the bond, and it was not accepted.

Prior to June 9, the president of plaintiff company requested of several members of council an extension, and in pursuance of this request the resolution of June 9 was adopted, granting an extension of ninety days. Meanwhile the street committee, acting under authority of a resolution of council, had gone over the streets with the president of the company and located the poles. The resolution provided that “they withhold placing the poles until the bond is approved,” and the president was informed of this proviso, and also notified not to put in the poles until councils had passed on the report of the committee. Nothing further appears to have been done until November 2, when the president of the company appeared before council and discussed the question of the bond. He offered at that time to furnish a personal bond in five times the amount required for a trust company bond. The minutes of the meeting state, “He contended that council had granted a 90 day extension of time, and that the street committee had gone over the borough and located their poles.” There does not appear to have been any exception taken to this claim, but later in the meeting council adopted the following resolution: “The matter of this company setting up its poles in Terrace avenue and Braddock avenue, before filing its bond, was discussed. It was moved and seconded that the East Pittsburg Electric Light Company be notified to remove its poles from the streets in ten days. Motion carried.” It seems that the members of the street committee knew of the work when it was being done, and consulted with the men engaged from time to time as to the details, and made no objection to the erection of the poles as they were going up. On November 3, in accordance with the direction of council, its secretary wrote to the light company notifying it of the demand of council for- the removal of the poles, upon the ground that the trust company bond had not been filed. In this letter no claim was made that the time limit had expired, but the notice was based entirely upon the failure to file the bond. Nowhere in the evidence do we find an expression of any intention upon the part of the borough to claim a forfeiture of the grant because of a failure to complete the work within the time limit. We agree with the trial judge that under the facts as shown, it would be inequitable to permit the borough to enforce a forfeiture of the grant by reason of the failure to observe the original time limit. In Dillon on Mun. Corp. (4th ed.), sec. 417, note 2, it is said: “Any positive acts (infra vires) by municipal officers which may have induced the action of the adverse party, and where it would be inequitable to permit the corporation to stultify itself, by retracting what its officers had done, will work an estoppel.”

In the present case, as we have seen, a resolution was passed by council extending the time for the completion of the work ninety days, and the company was notified by the president of council of the passage of the resolution. This extension was granted not merely to favor the company, but in the expectation that it would afford time to effect an arrangement which would avoid the necessity of placing so many poles upon the streets. Aside from the question of the effect of the resolution as an alteration of the ordinance, we regard it as an act inconsistent with the supposition that the borough council intended to hold the company to a strict compliance with the time limit fixed by the ordinance. “Where time of performance is of the essence of the contract, a party who does any act inconsistent with the supposition that he continues to hold the other party to this part of the agreement, will be taken to have waived it altogether:” 29 Am. & Eng. Ency. of Law (2d ed.), 1104. Had there been no dispute over the bond, it does not appear that the borough would have raised any question as to the time limit for the performance of the work.

As to the matter of the bond, the appellees seem to have made every reasonable effort to comply with the condition of the ordinance requiring it to furnish a “trust company bond” in the sum of $3,000. It procured and tendered such a bond to the borough. When that bond was not accepted, the company requested the borough to have its own solicitor draft a bond which would be satisfactory to council. After considerable delay, this was done, and the borough solicitor drafted a form of bond which was executed by the company and filed with the borough council. But meanwhile a new borough solicitor had been appointed, and he disapproved of the form of bond which had been prepared by his predecessor, and drafted a different form which the surety companies refused to execute. The president of the company then offered to give a bond for a very much larger amount, if individual sureties would be accepted; this proposition was, however, rejected.

The decree of the court below provides for the execution and delivery of a bond conditioned as required by the ordinance and its amendment. The court will see that the bond so executed is in proper form, and the rights of the appellant in this respect will be fully protected. The assignments of error are dismissed, and the decree of the court below is affirmed at the cost of appellant.


text:
    Fleming, Appellant, v. McDonald.

      Trespass — Slander of title — Deceit—Evidence.
    In an action to recover damages for an alleged false and malicious statement in the nature of slander of title, a verdict for the plaintiff will not be permitted to stand whore the evidence shows that the plaintiff had a lease from defendant’s husband which did not forbid subletting, and which had two years to run; that he had an offer from a third person to take a sublease for the unexpired term; that such person desiring two years in addition to the unexpired term and with full knowledge of the terms of the lease, addressed himself to the defendant for the purpose of getting such additional time; that the defendant, who could not read, said to him that the plaintiff had no business to rent the place, that he had no lease and that she would not allow anybody to move in there; there being nothing to show why the proposed subtenant, who did not in fact sublet, declined to take the property.

      Argued Oct. 21, 1910.
    Appeal, No. 125, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1906, No. 46, for defendant n. o. v. in case of James Fleming v. Jane McDonald.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass in the nature of slander of title.
    At the trial the jury returned a verdict for the plaintiff for $2,000. On a motion for judgment for defendant non obstante veredicto, Macfarlane, J., filed the following opinion:
    Fleming, the plaintiff, was a tenant of Samuel McDonald for a term of five years from May 1, 1903. McDonald died and his heirs were his wife, the defendant, and his children. The statement charges that in May, 1906, Fleming was about to close a lease with one Schwartz for a term of two years, which had been agreed upon between them, and that the defendant told Schwartz that no one could rent from Fleming and if any person rented from him he could not get into the house and that Fleming had no right to rent the property. This it is claimed was false and malicious and deterred Schwartz from making the lease, to the plaintiff’s damage.
    At the time of the trial Schwartz had become insane and the only testimony upon the statements of Mrs. McDonald was that of Arnold. He and Fleming substantially agree that Schwartz accompanied by Arnold came to see Fleming and that Fleming and Schwartz agree that Schwartz would take the property at $200 a month but that Schwartz wished to get three years more. By the terms of the written lease there was nothing to prevent Fleming from assigning or subletting. Arnold testified that Schwartz said to Fleming, "But I would like to get three more if I could; I am not satisfied with the two.” That they went to see Mrs. McDonald to see whether she would be satisfied for Schwartz to go into the house and to get the additional lease if he possibly could. That he wanted to make sure he could go into the place. That they went to Mrs. McDonald to rent the property. That Schwartz wanted to make sure that he could get in the place, he didn’t want to go in and find he couldn’t get in. That they went to see her with the intention of getting an extension of the lease and seeing the lady about the two years going in. He says when we came there we stated our business and Mrs. McDonald said that Fleming had no business to rent the place, and when Schwartz asked her for the additional two or three years, she said that Fleming had no business to rent the place. Further that he told her he had been up and seen Mr. Fleming and rented the place, and she said, “Mr. Fleming has no lease or no business to rent that place to anybody,” and she would allow nobody to move in there.
    A written lease was to be prepared and executed by Fleming and Schwartz. Schwartz returned to Fleming and they later went to the office of Fleming’s counsel. At that time there was no lease prepared and none was ever signed, and Mr. Schwartz did not take the property. Although objections were overruled there was no attempt to show by any statement of his why Schwartz did not take the property. It appeared from Fleming’s testimony that he had told Schwartz the nature of the lease, that he could sublet or rerent, and had read the lease to him before the visit to Mrs. McDonald.
    If this is a case for a jury we think there should be a new trial, but we are of opinion that there is not sufficient evidence to submit to the jury. It was undisputed that Mrs. McDonald could not read. She gave an opinion that Fleming could not' make a lease but Schwartz knew that Fleming had a lease and he knew that there was nothing in the lease to prevent a subletting and he actually went to counsel’s office with Fleming, and it is most significant that the subject of his reasons for declining to take the property was carefully avoided in the testimony. Further, Schwartz went to see Mrs. McDonald about getting a lease for the additional term of three years and he did not succeed in getting it, and it is perfectly manifest that that is the reason why he did not close the lease with Fleming. It is true that there is uncertain testimony that he visited Mrs. McDonald not only for this purpose but also to see whether he could get into the property, but in view of his knowledge of the lease it is absurd to say that this had any effect upon him. It would be indeed going very far to permit a verdict to stand based upon the reason which actuated a man in changing his mind when we have neither his own testimony nor his declarations and nothing more than a guess as to whether the statement of opinion deterred him from making the lease with Fleming.
    January 3, 1911:
    The representation or statement of Mrs. McDonald was not of any hidden matter as was the case in Pauli v. Halferty, 63 Pa. 46, but was upon the construction of the lease the contents of which were known to Schwartz. An action for deceit or false representations could not be maintained upon such testimony, neither do we think can this action of slander of title.
    Now, March 24, 1910, motion for judgment non ob-stante veredicto sustained and judgment is directed to be entered in favor of the defendant and against the plaintiff non obstante veredicto.

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

      Thomas M. Marshall, Jr., for appellant, cited:
    Pauli v. Halferty, 63 Pa. 46.

      John M. Freeman, with him D. T. Watson, Lazear & Blaxter and Ernest C. Irwin, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Moschzisker,

text:
    Whitehead v. Pittsburg Railways Company, Appellant.

      Negligence — Street railways — Passenger—Electric shock — Evidence.
    1. In an action against an electric railway company by a passenger to recover damages for personal injuries alleged to have been sustained by reason of an electric shock from a charged car, the case is for the jury where the evidence for the plaintiff, although contradicted, tended to show that at the time he received the injury he showed the symptoms and appearance of one having received an electric shock, that the appearance of portions of his body afterwards indicated it, and that a hole made in his shoe was such as might have been made by an electric current; but in such a case it is reversible error for the trial judge in his charge to assume the fact that the plaintiff had received an electric shock and to put the burden upon the defendant to overcome such presumption.
    2. In an accident case against a street railway company where there is nothing to show that the plaintiff was pretending to be sick, it is improper for the trial judge to suggest to the jury that the defendant was contending that the plaintiff was a pretender, and thus to prejudice the defendant corporation in the eyes of the jury.

      Negligence — Damages—Pain and suffering — Improper instructions.

    3. On the trial of an accident ease it is error to charge that “Pain and suffering cannot be bought a,nd sold like merchandise. No man would take any amount of money to subject himself to pain and suffering of the character suggested in many of the cases we try here.”
    Argued Oct. 24, 1910.
    Appeal, No. 4, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 95, on verdict for plaintiff in case of William H. "Whitehead v. Pittsburg Railways Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Tresspass to recover damages for personal injuries. Before Cohen, J.
    At the trial the plaintiff testified:
    “I rose up in my seat .... I stepped my foot forward, and there was a shock right through me, and I smelt like brimstone or some other peculiar smell in my nose, and that’s all I know. " I don’t know nothing more about it, until I was taken off the car. . . . When I became conscious, I was awful sick, and I had a funny taste in my mouth, — never had a taste like that before, and I wanted to vomit.” He had a slight burn on his hand but no injury to his feet. The next day his leg broke out in pimples. He said that after the accident when he looked at the shoe that had touched the wheel cover “it was covered with kind of black stuff like tar; and I felt it, and the center just dropped out,” leaving a hole. Frank Johnson testified that he was with the plaintiff at the time of the accident, and: “I seen Mr. Whitehead raised up off the seat; .... grabbed for that brass handle .... and placed his foot out this way, on top of the cover, and he jerked back this way (indicating), and showed his eyes like.” He then went on to say that he took hold of Whitehead and asked him what was the matter, but received no answer, and they then dropped back into the seat together; that when Whitehead came to his senses, he said to him, “What’s the matter Bill?” and the plaintiff replied, “I’ve got shocked, and I am hurt;” that Whitehead’s arm was straight out and his foot was on the top of the cover at the time he showed the evidences of shock. This witness said that he had worked about electricity for about six years, and that he had seen and had knowledge “about people being shocked with electricity.” Further, that he had received shocks himself. He then said: “I think his (plaintiff’s) appearance there was the way a man would act if he got shocked.” Another witness, who was a passenger on the car, testified: “Mr. Whitehead . . . . stuck out his hand to catch hold of the handle-bar with, and put his foot on the plate, and it just jerked him back as far as his arm would let him; it would out stiff; he was leaning against me at that time.”
    The masseur who treated the plaintiff said that there were some red spots on his leg, and that he had “seen about the same character of spots in cases that I have treated that were struck by lightning.” Dr. Gardner, a physician, who treated the plaintiff, described his injuries and said: “His trouble is due to receiving a shock.” This doctor admitted that he had made no special study of nervous trouble. When asked the question, “Would any shock, or the imagination that a shock had been received, act as a hypnotic suggestion, and the patient thereupon take on all the symptoms of one paralyzed? . . . .” He replied that it might, but he said that he thought the plaintiff’s condition was “the result of this shock.” Pie said that when he called upon the plaintiff a few days after the accident, he had not found any injury or burn on the foot, but that he had found a slight mark on the right hand. Dr. Purman, who had been sent to examine Whitehead by the defendant company, was called by the plaintiff. He said that the case was one of the most remarkable that he had ever seen. “If it had been a case of ordinary traumatic hysteria .... both limbs would have been injured, but here if the man received an electric current which was sufficient to paralyze one leg, it would have to travel not only up the nerve, but up the cord and go out his other hand, where his hand was placed, to make the current; he must make a circuit, you know, and the fact that nothing else was affected but one leg is the reason why I say that it was so remarkable. Now the only explanation of that was that the charge of electricity was so violent, so strong, that it not only destroyed the life of the nerve instantaneously, but coagulated the albumen in the tissues.” When asked on cross-examination, “If Mr. Whitehead had received no ... . electric shock, but imagined that he had received a shock, might not those symptoms develop?” He replied, “Oh, yes, they might, .... Anything might develop.” But he further said, that he did not regard it as probable that they would. When he was asked the question, “If it was impossible for him (the plaintiff) to have received an electric shock, what would you say then?” He replied, “The ease would be an ‘entire mystery/” and, “it would belong to those things we know nothing about.”
    This was the substance of the testimony for the plaintiff. However, one of the experts produced by the defendant testified that he was a professor of electric practice at the Carnegie Technical School, and had been for many years with the Westinghouse and another electric company. Upon an inspection of the plaintiff’s shoe, he said, “The hole looks to me like that of a hole made by an electric current.” He further said that the leather might have been burned by an electric current to the extent shown on the shoe without “necessarily” having any effect upon the nails. Joe Speller, a witness for .the defendant, testified that the car had been turned over to him after the accident, and that the night foreman had then said, “this car is charged.” No direct testimony was produced to show that the car was defective in construction, or that the electrical appliances were out of order, or that the wheel or handle was charged, or that there had been any demonstration by way of flash, or flame, or heat at the time of the accident.
    The defendant showed by its employees that the car had been examined immediately after the accident and found to be in good condition; that it was thereupon put right back into commission and has been in use ever since. A number of electrical experts testified that they had examined and tested the car and found nothing defective about the electric appliances; that in their opinion it would have been impossible for the handle grasped by the plaintiff or the cover upon which he had put his foot to have become charged, because they were insulated from everything else; and they all said that they could not conceive how it was possible for the plaintiff to have received an electrical shock in that way. These experts, excepting the one before referred to, testified that the hole in the shoe did not look like an electric burn, as such a burn would have fused the nails in the sole; and they all said that if a man had received a sufficient electric current through his body to have made such a burn it would have paralyzed a greater area, or killed outright. A number of medical doctors testified that in their opinion the plaintiff was suffering from hysterical paralysis; that this trouble could be due to an actual physical injury, or to the belief that one had suffered such an injury when in point of fact he had not. Most of these doctors said that an electric current passing through the body would have left marks on the surface, but one of them said that there was no absolute rule to that effect.
    January 3, 1911:
    Verdict and judgment for plaintiff for $7,500. Defendant appealed.

      Errors assigned (1) refusal to give binding instructions for defendant; (2) refusal to enter judgment non obstante veredicto for the defendant; (3) entering judgment on the verdict for plaintiff; (4-6) instructions in the charge assuming the fact that the plaintiff had been injured by an electric shock and placing the burden upon the defendant to overcome that presumption.

      William A. Challener, with him Clarence Burleigh, for appellant.
    There was no case for the jury: Cline v. Pittsburg Rys. Co., 226 Pa. 586.

      W. B. Rodgers, with him W. E. Newlin, for appellee, cited:
    Alexander v. Nanticoke Light Co., 209 Pa. 571; Whitehouse v. Rys. Co., 36 Pa. Superior Ct. 581; Lyttle v. Denny, 222 Pa. 395; Thomas v. R. R. Co., 148 Pa. 180; Herstine v. R. R. Co., 151 Pa. 244.
   Opinion by

Mr. Justice Moschzisker,

On September 10, 1906, the plaintiff, a passenger on one of the defendant’s electric street railway cars, arose from his seat to alight, and put his foot on a metal wheel cover, at the same time grasping a brass hand-hold affixed to the outside of the wooden upright or stanchion of the car. At that moment he received a shock of some character, either electric or mental, which knocked him senseless. Since then he has practically lost the entire use of his right leg from the foot to the groin, and has a sharply defined area of anaesthesia and analgesia in that leg; the right arm being affected to some degree in the same way.

The plaintiff alleged that he was suffering from the results of an electric shock, while the defendant contended that the plaintiff was suffering from hysterical paralysis due to mental shock, and that there was no sufficient evidence that the plaintiff received an electric shock. We cannot say that there was not sufficient evidence to justify the submission of that question to the jury. It is true that there was no rebuttal of the testimony given by the experts of the defense, and that the plaintiff's experts gave the jury little assistance. But, in view of ■the plaintiff’s testimony and the other evidence in the case which made in his favor, together with all the surrounding circumstances, the court did not commit error in allowing the question to go to the jury: Devlin v. Beacon Light Co., 198 Pa. 583. Whether or not, upon a consideration of the weight of the evidence, the lower court, in the wise exercise of its discretion, ought to have sustained the verdict, is another question: Dinan v. Supreme Council, 210 Pa. 456. However, a new trial will have to be granted upon grounds which we are about to discuss, and in the next presentation of the case that point may not arise. The first two assignments of error are dismissed.

In submitting the case to the jury, the court below fell into the error of assuming the fact that the plaintiff had received an electric shock. That was one of the principal issues in the case, but the trial judge in his charge practically stated that there was a presumption that the plaintiff had been injured by an electric shock, and put the burden upon the defendant to overcome that presumption. This was error. The charge should have been that if the jury believed the plaintiff had received an electric shock, then the burden was upon the defendant company to show that the shock did not come from its negligence. The last four assignments of error are sustained.

Since the case must be retried, there are certain points, not assigned for error, to which we deem it our duty to call attention. In his charge the learned trial judge said: “If this plaintiff is merely pretending to be sick, and is not sick, if for all these years he has been standing in the attitude of a cripple, when in fact he is as strong as he ever was, .... he is not entitled to your consideration for a moment, nor to your verdict.” There was nothing in the evidence to suggest the idea that the defendants were contending that the plaintiff was a pretender, and the manner in which this part of the charge was phrased might well have prejudiced the defendant corporation in the eyes of the jury. Again, the learned judge stated: “Pain and suffering cannot be bought and sold like merchandise. No man would take any amount of money to subject himself to pain and suffering of the character suggested in many of the cases we try here.” We reversed upon an assignment complaining of language similar to this in Baker v. Penna. Co., 142 Pa. 503. In this connection, also see the opinion filed to-day by our Brother Stewast in the case of McLane v. Pittsburg Railways Co., ante, p. 29. Finally, we suggest that this is peculiarly a case where the jury should be given the benefit of instructions upon the subject of expert testimony and upon the manner of weighing the evidence.

The judgment is reversed with a venire facias de novo.


text:
    Coll v. Westinghouse Electric & Manufacturing Company, Appellant.

      Negligence — Master and servant — Machinery—Change in construction of machine.

    1. Where an employer during the absence of an employee changes the construction of a machine and the employee on his return resumes his work without notice of the change, and while using the machine in a way which would have been attended with no risk whatever had the machine not been changed is injured, the employer is liable for the injury sustained. In such a case it is immaterial that the employee is a mature and experienced workman, or that the effect of the change was to reduce the risk of accident to the employees generally who worked upon the machine.

      Negligence — Statement of claim — Amendment.

      2. In an action of trespass to recover damages for personal injuries sustained by an employee at a machine which had been changed during his absence and without his knowledge, an amendment to the statement of claim may be allowed more than two years after the accident which does not change the negligence charged, viz., failure to give notice of the change in the machine, but merely sets forth more accurately the effect produced by the change in its relation to the accident.
    Argued Oct. 24, 1910.
    Appeal, No. 18, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1901, No. 719, on verdict for plaintiff in case of F. B. Coll v. Westinghouse - Electric & Manufacturing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ford, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      January 3, 1911:

      William A. Challener, with him Clarence Burleigh, for appellant.
    Generally speaking, Coll was not entitled to notice or instruction with regard to anything, because he was an experienced machine hand, of mature years. The duty to warn and instruct applies only to the young and inexperienced: Melchert v. Smith Pale Ale Brewing Co., 140 Pa. 448; Bellows v. R. R. Co., 157 Pa. 51.
    A fatal and material defect in the pleadings cannot be corrected after the statute of limitations has become a bar: Martin v. Pittsburg Railways Co., 227 Pa. 18; Ma-honey v. Park Steel Co., 217 Pa. 20; to the same effect also are: Wright v. Hart, 44 Pa. 454; Smith v. Smith, 45 Pa. 403; Trego v. Lewis, 58 Pa. 463; Fairchild v. Dunbar Furnace Co., 128 Pa. 485; Grier v. Northern Assurance Co., 183 Pa. 334.

      F. C. McGirr, of Marrón efe McOirr, for appellee.
   Opinion by

Mr. Justice Stewart,

The plaintiff had been in defendant’s employ a month or more before he received his injury. During this period, by occasional use of a certain sawing machine in the shops of the defendant, he had become familiar with its construction and the method of operating it. While absent several days from his work, the defendant changed the construction of the machine, with a view to make it more convenient and easier to operate. No notice of this change was given to the defendant. When he resumed his work, and while using the machine in a way which would be attended with no risk whatever had the machine not been changed, he received his injury. The verdict involves a distinct finding that the plaintiff was without notice or knowledge of the change; that ordinary care and prudence on his part would not have discovered the change; and that no negligence of his contributed to the injury. The learned trial judge held that the defendant having made the change in the machine, a duty rested upon it to advise the plaintiff of the fact. This is complained of as error on several grounds. First, because the duty to instruct and warn arises only where the employee is young and inexperienced. This calls for no discussion. Whenever and wherever an employee is by the act of the employer exposed to a new danger in the performance of his work, except as the danger is discoverable by the exercise of ordinary care and prudence on the part of the employee, a duty rests on the employer to give notice of the change made. The law as stated by Labatt in his work on Master and Servant, sec. 28, p. 64, is as follows: “If new functions are imposed upon an instrumentality by the master himself or his representative, and the servant is thereby exposed to undue risks, the master must answer for any injury resulting from those risks, and cannot excuse himself by showing that the instrumentality was a suitable one for the performance of the work for which it was originally supplied.” Second, because the effect of the change made in this case was to reduce risk of accident to the employees generally who worked upon the machine. Admitting this to be a fact proved, its immateriality is manifest. The complaint is not that the machine was defective, or that it was not by the change made as safe an instrumentality as could be devised for the purpose, for the general employees; but that it was rendered unsafe for this particular employee who, without notice of the change, had a right to suppose that he encountered no risks in operating it other than those to which he was exposed when operating the machine before the change was made. If he had notice or knowledge of the change, the injury here received could only be referred to a deliberate purpose on his part to mutilate himself. The fact that the plaintiff was a skilled workman has nothing to do with this aspect of the case. The jury found that though skilled, the accident happened through no neglect of duty on his part. The law that the trial judge applied to the case is correct both on principle and authority.

In the statement of the cause of action the machine was described as a table on which there were two circular saws, attached to the same shaft, so that one could not be raised or dropped without the other; and after averring that a change had been made by cutting the shaft on which the saws were set so that the saws could operate separately, the statement continues — that plaintiff "after using the cross cut saw to cut the lumber, lowered the said saw below the surface of the table, and supposed as had always been the case before that the rip saw had also been lowered.” More than two years after the accident occurred, plaintiff was permitted against objection to amend the statement as follows, “Instead of alleging that one saw could not be raised or dropped without the other, to amend by saying one saw could not be started or stopped without the other. Also instead of saying he lowered the said saw below the surface of the table, and supposed as had always been the case before that the rip saw had also been stopped, to amend by saying “he stopped the said saw and supposed as had always been the case before, that the rip saw had also been stopped.” The allowance of the amendment is complained of on the ground that it changed the cause of action. We cannot so regard it. The amendment charged the same negligence as that set out in the original statement — failure to give notice of the change made in the operation of the machine. It did not assign any different cause of the injury, but was simply a restatement of the fact that the change of the machinery was a cutting of the shaft at a point between the saws which caused them to elevate and depress independently, setting forth more accurately the effect produced thereby in its relation to the accident. There was no error in allowing the amendment. The assignments of error are overruled and the judgment is affirmed.