author: Mr. Justice Brown,

text:
    Cubbage, Appellant, v. Pittsburg Coal Company.

      Mines and mining — Deed—Extent of grant — Ventilating shaft.

    A grant of a- right to mine and carry away “said granted coal, and in so doing to exercise the usual and ordinary privileges of ventilation and drainage upon the land” of the grantor, “but in such a manner as to do no unnecessary injury thereto, with the right also to transport other coal through underground entries made or to be made in the hereinbefore granted coal,” coupled further with “a right of way for an inclined railway, the right to use one acre of land at or about the pit mouth, and the right to use land for siding and switches” along a railroad mentioned, does not include the right to sink a ventilating shaft in the land for the purpose of ventilating mines under adjoining lands.
    Argued Oct. 23, 1906.
    January 7, 1907:
    Appeal, No. 46, Oct. T., 1906, by plaintiff, from judgment of Superior Ct. April T., 1905, No. 171, reversing decree of O. P. No. 1, Allegheny Co., Dec. T., 1903, No. 215, in case of Boyd G. Cubbage v. Pittsburg Coal Company.
    Before Mitchell, C. J., Brown, Elkin and Stewart, JJ.
    Reversed.
    Appeal from Superior Court.
    Tbe facts appear from the opinion of the Supreme Court and from the report in 29 Pa. Superior Ct. 341.

      A. G. Smith, with him E. L. Kearns,

    for appellant, cited: Potter v. Rend, 201 Pa. 318; Farrar v. Pittsburg, etc., Coal Co., 28 Pa. Superior Ct. 280.

      Charles Marshall Johnston, for appellee.
   Opinion op

Mr. Justice Brown,

By deed dated May 6, 1865, Joseph K. Cubbage, the father of Boyd G-. Oubbage, tbe plaintiff below, conveyed to 'William AL Lyon all the coal in and under a tract of land containing 31 acres and 45 perches situated in what was then the township of Robinson, Allegheny county. The conveyance of the coal included “ the right to mine and carry away said granted coal and in so doing to exercise the usual and ordinary privileges of ventilation and drainage upon the land of said Joseph K. Oubbage, but in such manner as to do no unnecessary injury thereto, with the right also to transport other coal through underground entries made or to be made in the hereinbefore granted coal and over the railway hereinafter mentioned; also, a right of way for an inclined railway with the necessary appurtenances across the land of the said Joseph K. Oubbage from said granted coal to the Pittsburg & Steubenville Railroad, with the free and uninterrupted right to construct, maintain and operate the same; also, the use of one acre of land parcel of the tract aforesaid, at and about the pit mouth for a check house and other necessary and convenient uses in connection with mining operations, such as for deposit of timber, coal, slack, etc., but the same shall not be occupied by any dwelling houses; also, the use of such ground parcel of the tract aforesaid along the line of the Pittsburg & Steubenville Railroad as may be necessary and convenient for sidings, switches, etc., for the proper dispatch of business in loading and transferring coal.” The habendum in the deed is as follows : “ To have and to hold the said right of way, uses, easements and privileges unto the said party of the second part, his heirs and assigns, so long as he or the firm of Lyon, Short & Company, his or their heirs or- assigns may have any coal, whether now owned or hereafter to be acquired, which can be brought by said route to the Pittsburg & Steubenville Railroad and the said described coal, hereby granted or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, his heirs and assigns, to and for the only proper use and behoof of the said party of the second part, his heirs and assigns forever, as the property of and in trust for the firm of Lyon, Short & Company, according to the provisions of a certain deed relating to the real estate of said firm.”

The present appellant acquired title to 14 acres and 128 perches of the tract of 31 acres and 45 perches, subject to the grant by his father to Lyon. The Pittsburg Coal Company, engaged in the business of mining and transporting coal, acquired all the coal rights, easements and privileges granted to Lyon by the elder Cubbage. It operates a coal mine known as The Grant Mine,” comprising a territory of between 1,000 and 1,100 acres, which includes the tract of 31 acres and 45 perches conveyed by Cubbage to Lyon. The court below found as a fact that under this 31 acre tract the coal has been mined and practically exhausted for more than twenty years, except so much as is necessary to support the entries and the surface over them. In September, 1903, the defendant began to sink a shaft on plaintiff’s land for the purpose Of ventilating the “ Grant Mine generally and in its entirety.” The shaft, if completed, would include an excavation of eight by ten feet in the coal of the mine, with the earth and debris taken therefrom and deposited about the mouth, as well as a suitable building to maintain a ventilating fan and other ventilating contrivances, including an engine. After the work of sinking the shaft had progressed about two days, without the consent of the plaintiff, he notified the defendant to cease sinking it, and on its refusing to do so, filed this bill. The question said by the learned judge writing the opinion of the Superior Court to be raised on this appeal is, “ the right of the defendant to install, operate and maintain a ventilating shaft on the 31 acre tract so as to furnish sufficient air in the entries and workings in that tract and in the other operations of the Grant Mine.” As the result of our examination of the case, we regard the real question to be the right of the coal company to erect a ventilating shaft on the Cubbage surface for the purposes of ventilating the coal territory adjoining or surrounding the 31 acre tract.

It may be conceded, as is stated in the opinion of the Superior Court, that there is a present necessity for the ventilation of the Grant Mine to insure the health and safety of the miners working therein; that the old workings generated black damp, a gas dangerous to life ; that the mine inspector of the district gave notice to the defendant below that the ventilating power must be increased, and that, after an examination of the premises, he selected the location which has been adopted by the. appellee as the most desirable for the safe ventilation of the mine, with the least damage to the surface land, and that in the development of the territory to which the 31 acre tract was the key or outlet some provision would of necessity be required for the ventilation of the deeper or more remote workings. But for no one of these reasons, nor for any other, can the rights and privileges which passed by the deed from Cubbage to Lyon be extended beyond the limitations expressly fixed by the grantor. If the words of the grant are clearly susceptible of but one interpretation, the understanding of grantor and grantee as to what passed by them must be found in them alone. What ought to have passed from a grantor to a grantee, or what ought to be understood as having passed, is never a question for a court, when the grant itself, in words not to be misunderstood, states exactly what did pass; and in the present case we cannot be asked to say what ought to have passed, or what rights and privileges the appellee ought to be allowed to enjoy, if the deed is free from doubt as to what was granted. In grants like this nothing is tobe implied beyond a limitation which is clearly expressed : Potter v. Bend, 201 Pa. 318. that right alone, is the privilege annexed of exercising the usual and ordinary privileges of ventilation and drainage upon the surface. In mining other coal no such right was granted. “ In so doing,” that is, in mining and carrying away the coal granted, the ventilating privilege was granted, and this right, so clearly limited, is not to be extended by implication, even if ventilation is needed in mining other coal and the same may be transported through underground entries beneath plaintiff’s surface. His right is to stand upon the words of the grant to Lyon, and the coal company must get the needed ventilation in some other way than by a trespass.

It may be that Joseph IL Cubbage, though willing to grant a right of ventilation and drainage upon his surface for the mining of the coal under it, was unwilling to extend such right to a coal territory of more than 1,000 acres adjoining or surrounding it, and, therefore, so limited it; or Lyon, the grantee, may not, forty years ago, have deemed important the right which his successor would now exercise; but, be this as it may, such right does not exist, because it was not granted. The limitation upon the right of ventilation that was granted was clearly expressed and fixed by the grantor himself, and accepted by the grantee. It remains, and must remain, as fixing the territory to be ventilated on the surface of the Cubbage tract. There is nothing in the habendum in any way affecting this limitation. This is the whole case.

The decree of the Superior Court is reversed and the decree of the common pleas is affirmed, with costs to the present appellant.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Ellis v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—“Stop, look and listen” — Grade crossings.

    In an. action against a railroad company to recover damages for death of plaintiff's husband, it appeared that the deceased was killed at a grade crossing where there were five tracks, in a borough. He used the crossing daily, and was familiar -with all its surroundings. Just before starting to cross the tracks, he stopped and looked east and west. He then walked leisurely over the crossing and was struck by the engine of an express train running east on the fourth track, The road west from the crossing was practically straight for 1,686 feet, and it was actually straight a distance of 1,446 feet. It was daylight and there was nothing to obstruct his view of the train. The testimony of the only witness to the occurrence called by the plaintiff was that the train was in clear view at a distance of 1,445 feet when the deceased started to cross the tracks. Whether it was in view when he looked did not appear from the testimony. Held, (1) that the conclusion was irresistible, that the deceased saw the train and took the chance of crossing in front of it; and (2) that it was error to submit the case to the' jury.
    Argued Oct. 23, 1906.
    January 7, 1907:
    Appeal, No. 50, Oct. T., 1906, by-defendant, from judgment of O. P. No. 3, Allegheny Co., May T., 1904, No. 356, on verdict for plaintiff in case of Mary Elizabeth Ellis v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Evans, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $3,700. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson,

    for appellant, cited : Myers v. B. &. O. R. R. Co., 150 Pa. 386; Kinter v. Penna. R. R. Co., 204 Pa. 497.

      A. W. Duff, with him H. E. Carmack,

    for appellee, cited: Cohen v. Phila. & Read. R. R. Co., 211 Pa. 227; Ayers v. Pittsburg, etc., Ry. Co., 201 Pa. 124; Confer v. Penna. R. R. Co., 209 Pa. 425 ; Cromley v. Penna. R. R. Co., 208 Pa. 445 ; Davidson v. Ry. Co., 179 Pa. 227; Carroll v. Penna. R. R. Co., 12 W. N. C. 348 ; Beach v. Penna. R. R. Co., 212 Pa. 567; McNeal v. Pittsburg, etc., Ry. Co., 131 Pa. 184; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213.
   Opinion by

Mr. Justice Fell,

The only question to be considered is whether the facts shown by the plaintiff’s testimony bring the case within the established rulé that one who goes in front of a moving train which he had ample opportunity to see and avoid will be conclusively presumed to have been negligent.

The plaintiff’s husband was killed at a grade crossing of the ' defendant’s road, where there were five tracks, in the borough of Wilkinsbuxg. He used the crossing daily and was familiar with all the surroundings. Just before starting to cross the tracks, he stopped and looked east and west. He then walked leisurely over the crossing and was struck by the engine of an express train running east on the fourth track. The road west from the crossing was practically straight for 1,685 feet, and it was actually straight to Penn avenue, a distance of 1,445 feet. It was daylight and there was nothing to obstruct his view of the train.

The testimony of the only witness to the occurrence called by the plaintiff was distinct that the train had crossed Penn avenue and was in clear view when the deceased started to cross the tracks. Whether it was in view when he looked did not appear from the testimony, and the case was submitted to the jury on the narrow question whether the train came in view after the deceased had looked. This submission allowed the jury to base its verdict on a mere supposition that was unsupported by the testimony and was in conflict with any conclusion that could be drawn from it. The deceased was walking, there was nothing to interfere with his view or ' to distract his attention. He stopped close to the first track, looked east, then west toward the train and as he started forward the train was in clear view east of Penn avenue and it had been in clear view while traveling 240 feet before it reached the avenue. Looking and starting forward required but an instant; there was no appreciable time between these acts. The conclusion is irresistible that the deceased saw the train and took' the chance of crossing in front of it.

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


author: Per Curiam,

text:
    Robb v. New York and Cleveland Gas Coal Company, Appellant.

      Mines and mining — Idfe estate — Damages—Misconstruction of instrument —Treble damages.

    Where a grantee under a deed in fee simple of land on which is an open coal mine, agrees in writing that his grantors “shall have the privilege and right to remain on said property during their natural lives, or the natural life of the survivor of them, free from the payment of any rent, taxes, assessments, or encumbrance of any kind,” and the grantors occupy the land and continue the mining of coal thereon for eleven years, Held, by a divided court that a person claiming under the grantee cannot dispute ■ their life estate in the coal, or their right to exhaust the coal, and if he himself mistakenly construes the instrument under which they claim, and mines the coal on the land, he will be liable to them in treble damages.

      Res adjudícala — Hearing on the merits.

    A claim of res adjudicata cannot be set up where there has been no hearing on the merits of the case.
    Argued Oct. 24, 1906.
    Appeal, No. 65, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1904, No. 729, on verdict for plaintiff in case of Mary M. Robb v. New York and Cleveland Gas Coal Co.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the alleged wrongful mining of coal.
    At the trial the jury returned a verdict of $5,250, being treble the value of the coal taken.
    On a motion for judgment for defendant non obstante veredicto McClung, J., filed the following opinion:
    Mary Robb, the plaintiff, sues to recover damages for the mining of coal by the defendant under her farm in Penn and Wilkins townships, Allegheny county.
    The mining of the coal by defendant was admitted, and the jury found that it was mined with the knowledge of plaintiff’s ownership and was converted to defendant’s use, and that the actual value of the coal so taken was $1,750 and the treble value $5,250. . ■

      The tract of land contained eighty acres, about twenty-five acres being underlaid with coal, and was conveyed to Mary Robb in fee simple by Thomas Mellon et ux., by deed dated March 1,1883.
    By deed dated February 16,1884, Mary Robb with William Robb, her husband, conveyed this land in fee to William H. Graham, their son-in-law.
    There was, at and before this conveyance, an open coal mine on the land from which coal was being mined, both for use of the occupants of the farm, and for sale to parties in the neighborhood.
    By a paper bearing the same date as the deed to Graham, but according to the testimony of Graham executed some months afterward, there was created in Mary Robb the interest around which the contest in this case centers.
    This paper was executed in consideration. of the conveyance to Graham and in fulfillment of an agreement made at the making of said conveyance, and is executed by Graham and by the Robbs, and after reciting said deed and by reference describing the property proceeds:
    “Now this agreement witnesseth, That he, the said Graham, contracts and agrees that the said William Robb and his wife, Mary M. Robb, shall have the privilege and right to remain on said property during their natural lives, or the natural life of the survivor of them, free from the payment of any rent, taxes, assessments or encumbrances of any kind, and the said William Robb and Mary M. Robb to have the rights and privileges as above set forth for and during that time.”
    By deed dated and acknowledged December 27, 1895, and recorded January 14, 1896, Graham and wife conveyed this land to defendant in fee without exception or reservation, “ but with covenants warranting the title and agreeing to indemnify the grantee against damage, costs and expenses arising out of any hostile claims.”
    Defendant took this conveyance with full knowledge of the above-recited agreement between Graham and the Robbs, and Mr. and Mrs. Robb occupied said farm from 1883 until 1898 when William Robb died, Mrs. Robb continuing to occupy the premises.

      During all the time of this occupancy, coal was taken from this open mine by the Robbs and used and sold, the amount running as high as 4,000 bushels a month, until the defendant, who after William Robb’s death began to mine the coal from another entry, cut off plaintiff’s entry and prevented further mining by her. This was about 1900.
    It is manifest that the main question in this case is, did the Graham agreement vest in the Robbs a life estate in said land without restrictions as to the use of the coal ?
    We need not cite authorities to the effect that a life tenant of a tract of land can work an opened coal mine even to exhaustion, for this is conceded. The extent to which the rule is carried, however, is fully set forth in the two Pennsylvania cases of Neel v. Neel, 19 Pa. 323, and Irwin v. Covode, 24 Pa. 162.
    When- Graham agreed that these people who had occupied the land as their own for a year should remain on it for life, he certainly meant simply that they should continue to occupy it for their lives in the same .way. They were at this time exercising all the rights of exclusive occupants, including the mining of coal, and for at least eleven or twelve years thereafter, continued to so occupy, including the mining, without objection, or question. Can there be any doubt about the fact that they were to have all the rights of life tenants ?
    We have the right to take into account the surrounding circumstances and the conduct of the parties afterward in determining the meaning of this paper: Lemon v. Graham, 131 Pa. 447, and many other cases.
    An estate for life is a freehold interest in lands, the duration of which is confined to the life or lives of some particular person or persons or to the happening or not happening of some uncertain event.
    In Fay v. Fay, 55 Mass. 93, it was held that a devise of the “use and improvement” of certain land created a life estate.
    In McOlure v. Melendy, 44 N. H. 469, it was held that the devise of “ the use and occupancy of ... . real estate during his natural life ” was a devise of the land for life and not of the income as distinguished from it.
    See also McCullough’s Est., 12 Pa. 197; Criswell v. Grumbling, 107 Pa. 408, and Brady Overseers v. Clinton Overseers, 148 Pa. 311.
    Defendant’s counsel do not, in tbeir argument, appear so much tó contest the .proposition that the Graham agreement gave the Robbs a life estate, as to press the proposition that it was a life estate shorn of some of its incidents — especially the right to take out the coal.
    The first answer to this is the fact that for fifteen yeárs they continued to take out the coal — two-thirds of the time without question.
    Defendant’s counsel plant themselves upon the case of Waugh’s Executors v. Waugh, 84 Pa. 350.
    The judge who delivered the opinion in that case well said, “There is room for a conflict of opinion in a case so balanced as this.” ' ■
    The life estate there was created by an exception in his own behalf in the deed of the grantor and it was not held that there was not a life estate, but that its common-law incident as to emblements was taken away by the terms of the grant.
    In the present case we have nothing of this nature in the paper creating the estate. The Waugh case was plainly carried in favor of the remainder-man because he was the grantee, and in whose favor a doubtful construction must be resolved.
    In the present case Mrs. Robb is the grantee. The deed from the Robbs to Graham was an absolute one in fee simple, and except in so far as it shows a good and valuable consideration, has nothing to do with the paper which creates plaintiff’s title.
    It contains no such words as are used in the opinion in the Waugh case to illustrate how a life estate may be stripped of its incidents.
    To our mind the reasoning of the Waugh case is strongly in favor of plaintiff’s contention.
    We are unable to fall in with defendant’s proposition to the effect that plaintiff has no remedy because the coal was of no use to her unless she took it out, and she failed to take the coal sued for — inasmuch as her failure to do so was caused by the taking of it by defendant. Defendant has nothing to complain of as to the measure of damages. Mrs. Robb being the life tenant, was the owner of the coal during her life, and could have taken it all out. Any person entering upon the premises was a trespasser as against her, and it matters not that this was a person who would own and come into possession of such coal as she left in place at her death. It might well be argued that she was the owner to whom treble damages for all the coal taken out is given by the Act of May 8, 1876, P. L. 142. Besides the defendant itself demonstrated that all the coal could be taken out during her lifetime. She is yet living, more than five years after the exhaustion of the mine.
    In any aspect of the case the verdict as to amount is notunfavorable to defendant.
    It is argued that defendant is not liable for treble damages because it did not knowingly take the coal.
    This is based not upon the fact that it did not know it was mining within the lines of the Robb farm, but upon its assumption that the Graham agreement did not give plaintiff any title to the coal. It. cannot be heard to say that it did not knowingly take plaintiff’s coal because it misconstrued her title papers.
    If the title depended upon a question of fact this defense would avail, but it will not where it depends simply upon the construction of a written instrument.
    We are not dealing with a case like Crawford v. Forest Oil Company, 208 Pa. 5, where the rule of damages is ‘an elastic one, subject, within limits, to the control of the court for the purpose of doing justice as between the parties, but with a penalty fixed by statute applicable to everyone who knowingly mines his neighbor’s coal.
    It is said, however, that plaintiff’s contention was determined adversely to her before this suit was brought.
    IJpon November 23, 1896, at No. 387, January Term, 1897, of the court of common pleas No. 2, William and Mary Robb filed a bill in equity against W. IT. Graham “ with notice to the New York and Cleveland Gas Coal Company” in which it averred that the deed from the Robbs to Graham, absolute on its face, was only intended as a security for certain money at the time advanced by Graham to or for them, and that the coal company had taken its deed from Graham with knowledge of the facts.

      The prayer was that the deed be declared void save as a security, and that the coal company be restrained from mining, etc.
    Upon April 20, 1897, Graham and the coal company filed a joint and several answer, in which they set up that the conveyance to Graham was intentionally made an absolute one, under an arrangement “ that the said plaintiffs should be given a right of occupancy of said land during their natural lives, and they are now occupying the said land under said agreement, which was in writing, etc.,” and attached a copy of the agreement, it being the paper spoken of in this case as the Graham agreement.
    The coal company, the present defendant, further answered that “ it claims the legal right to mine and remove said coal whensoever it shall see proper, but that they are amply responsible financially to answer any claim for damages that may be established by said plaintiff.”
    They then prayed that the bill be dismissed.
    Answer and replication were filed — and succeeding that we have nothing except the following docket entry : “ December 6, 1897, on trial list and the plaintiff offering no testimony this case is dismissed at the cost of the plaintiff.”
    To constitute res adjudicata there must be a hearing on the merits of the case. We think it is plain that there was no adjudication here as to the rights of Mrs. Robb under this Graham agreement. There could not properly have been such an adjudication without an amendment of the bill and there was no such amendment. The coal company asked that the bill be dismissed and the plaintiff left to her action for damages, if she had title under this paper. Can this dismissal be construed as more than a granting of that request ?
    In addition to this, in 1898 the coal company (present defendant) filed a bill against the Robbs, setting out their claim to the coal under this Graham agreement and asking to have it construed, and this bill was in August, 1898, upon demurrer dismissed, the judge’s opinion showing that it was upon the ground that the result aimed at could be attained in an action of trespass if the coal company attempted to mine the coal.
    When the coal company filed this second bill it certainly had no thought that the question raised had been settled in its favor by the first one.
    If we did not go to the judge’s opinion, which is not strictly - a part of the record, we would have here a determination of the question in favor of the present plaintiff.
    It seems plain that there was in neither case a hearing upon the merits, as to the rights of Mrs. Robb under the Graham agreement.
    Our conclusion is that the plaintiff is entitled to judgment upon the verdict for $5,250 upon payment of the verdict fee, and it is so ordered.
    And now, to wit: February 2,1906, it is ordered that a new trial be refused, and the motion for judgment for defendant non obstante veredicto is denied.

      Error assigned was in entering jndgment on the verdict.

      John P. Hunter, of Schoyer & Hunter, for appellant.
    The plaintiff did not have such an estate for life in the property as would give her the right to mine coal to exhaustion: Whitaker v. Brown, 46 Pa. 197; Turner v. Scott, 51 Pa. 126; Daugherty v. Marcum, 40 Tenn. 322 ; Chappel v. Row, 9 Pa. 72 ; Waugh v. Waugh, 84 Pa. 350; Cable v. Cable, 146 Pa. 451; Fisher v. Nelson, 8 Mo. App. 90.
    The plaintiff had no such estate in the coal as enabled her to maintain an action for its removal by the defendant company.
    The plaintiff was not the owner of the coal so as to enable her to recover treble damages : Coleman’s App., 62 Pa. 252; Tammany v. Whittaker, 4 Watts, 221; Edwards v. Hill, 11 Ill, 22.
    The defendant acted upon a bona fide belief that it was entitled to the coal, and cannot be subjected to treble damages: Humphrey v. Cooper, 183 Pa. 432; McDonald v. Wood Co., 14 Mont. 88 (35 Pac. Repr. 668); Crawford v. Forest Oil Co., 208 Pa. 5; Coal Co. v. Rogers, 108 Pa. 147.
    The judgment entered in the proceedings in equity at No. 387, January Term, 1897, in which Mary Robb and William Robb, her husband, are plaintiffs, and William H. Graham, with notice to the New York & Cleveland Gas Coal Company, is defendant, is a bar to this action: 'Winton’s App., 97 Pa. 584; Kelsey v. Murphy, 26 Pa. 78 ; Westcott v. Edmunds, 68 Pa. 34; Myers v. Coal Co., 126 Pa. 582; Hill v. Joy, 149 Pa. 243 ; Zook v. Penna. R. R. Co., 206 Pa. 603.
    January 7, 1907:

      W. B. Rodgers, with him Stewart M. Cunningham, for appellee.
    The Robbs had a life estate in the land; Meigs v. Lewis, 164 Pa. 597; Lemon v. Graham, 131 Pa. 447; Fay v. Fay, 55 Mass. 93; McClure v. Melendy, 44 N. H. 469 ; Brady Overseers v. Clinton Overseers, 148 Pa. 311; McCullough’s Est., 12 Pa. 197; Daly’s Estate, 11 W. N. C. 514; Criswell v. Grumbling, 107 Pa. 408.
    It being a life estate they had the right to work the coal mine even to exhaustion: Neel v. Neel, 19 Pa. 323; Irwin v. Covode, 24 Pa. 162.
    A decree to be conclusive in other cases between the same parties, must have been on the merits of the case : Weigley v. Coffman, 144 Pa. 489; Foster v. Busteed, 100 Mass. 409.
   Per Curiam,

The judges who heard this case being equally divided in opinion the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Wood v. Schoen, Appellant.

      Wills — Construction—Intention of testator.

    The purpose in construing a will is to ascertain the intention of the testator so that it may be carried out in the disposition which he has made of his property. Technical rules of construction should only be resorted to and applied in the interpretation of wills when found to be necessary in determining the meaning of the instrument so as to effectuate the purpose of the testator. If the language employed by him in disposing of his estate is plain and clearly discloses his intention, the will interprets itself, and hence no rules of construction are necessary to aid in its interpretation.
    A universal rule in construing a will requires that, if possible, effect shall be given to every word, and every part of it.
    The usual and ordinary meaning is to be given to words and terms in a will, unless the context shows that such was not the meaning intended by the testator.

      Wills — Remainder—Tested and contingent estates — Construction of will.

    Where property is limited by will to one for life, and after his decease to the testator’s next of kin or heirs or other classes of persons similarly described, the persons who answer that description at the death of the testator and not those who answer it at the death of the tenant for life shall take, unless a contrary intent clearly appears from the will; but when it clearly appears that the testator intended his heirs or next of kin at the death of the tenant or legatee for life to take, such intent will prevail.
    Testator after having given the income of his estate to his wife and three sisters for their lives directed as follows: "Upon the death of my said wife and all of my first named three sisters, I will, devise and bequeath the one-third of the real estate and moneys from the personal estate in the hands of my said trustees to my nephew and my niece in fee, equally; the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased. And in default of such child or children or issue, then to those who would then be entitled thereto under the intestate laws of this state.” Held, (1) that it was the intention of testator to devise the two-thirds of the remainder of his real estate to those who should be his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of his death; and (2) that upon testator dying without leaving children, or the issue of children, but leaving his wife and sister surviving, his heirs at the time of his death could not make a good title to the testator’s real estate.
    Argued Oct. 24, 1906.
    Appeal, No. 127, Oct. T., 1906, by defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1906, No. 100, for plaintiffs on case stated in suit of James S. Wood and Fannie J. Wood, his wife, Allen B. Wallace, Elizabeth S. Wallace, Mary Scott and S. W. Dana and Richard F. Dana, Executors of the estate of Catharine N. Scott, deceased, v. W. H. Schoen.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Case stated to determine the marketable title to real estate. Before Sharer, J.
    From the record it appeared that the defendant agreed with plaintiffs to purchase a lot of land in the second ward of the city of Pittsburg. The land formerly belonged to James Scott. The latter died leaving a will by which he directed, inter alia, as follows :
    “ 1. I devise all of the .real estate of which I may die seized, wherever the same may be situated, to George W. Yan Fleet, of the place aforesaid, and--, of- -, and to such successor or successors as may be appointed in law, in trust for the uses and purposes hereinafter expressed.

      “ In the event of my death without children my said trustee shall pay one-half of the rents, issues and profits of said real estate, after the deductions aforesaid, annually to my wife Emma, during her natural life, and also the one-half of the interest annually upon the moneys invested as aforesaid, less the expenses — the other half of the said rents, issues and profits and interest, less the deductions aforesaid annually to my sisters, Eliza S., Mary and Catharine N., during their joint lives and to .survivor or survivors for life.
    “ Upon the death of my said wife and all of my first named three sisters, I will, devise and bequeath the one-third of the real estate and moneys from the personal estate in the hands of my said trustee to my nephew, James Wood, and my niece, Lizzie Wallace, in fee, equally; the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased. And in default of such child or children or issue, then to those who would then be entitled thereto under the intestate laws of this state. And I authorize my said trustees aforesaid to convey and assure the same by proper assurances in law to said persons respectively.”
    James E. Scott, deceased, left to survive him neither child nor descendants in any degree, but did leave to survive him a widow, Emma E. Scott, and three sisters, viz.: Eliza S. Scott, Mary Scott and Catharine N. Scott, spinsters, and a nephew, James Wood, a son of Grace Wood, a deceased sister, and a niece, Lizzie Wallace, daughter of Ellen Wallace, a deceased sister, all of full age.
    The plaintiffs were the heirs, or the representatives of the heirs, of James F. Scott. The defendant refused to accept a deed, claiming that the title offered to him was not marketable. The court entered judgment for plaintiffs on the case stated.

      Error assigned was judgment for plaintiffs on case stated.

      George T. Hildebrand, for appellant.
    A remainder must be regarded as vested rather than contingent, if such a construction is possible : Buzby’s App., 61 Pa. 111.
    The following cases in Pennsylvania, wherein it was decided that the class of persons taking was to be determined as of the time of the death of the testator, had in controversy certain clauses : Baskin’s App., 3 Pa. 304 ; Etter’s Estate, 23 Pa. 381; Ramsey’s Estate, 1 Am. Law Reg. 94 ; Riehle’s App., 54 Pa. 97; Buzby’s App., 61 Pa. 111; McCrea’s Estate, 180 Pa. 81; Stewart’s Estate, 147 Pa. 383; Crawford’s Estate, 17 Pa. Superior Ct. 170.
    January 7, 1907:

      S. W. Dana, with him Richard F. Dana, for appellees.
    A devise or bequest to heirs, or heirs at law of the testator, or to his next of kin, should be construed as those who are such at the time of the testator’s decease, unless a different intent is plainly manifested by the will: Bullock v. Downes, 9 H. L. Cas. 1; Mortimore v. Mortimore, L. R. 4 App. Cas. 448, aff’g Mortimer v. Slater, L. R. 7 Ch. D. 322 ; Michell v. Bridges, 13 W. R. 200 ; In re Morley’s Trusts, 25 W. R. 825; Woods’s App., 18 Pa. 478; Riehle’s App., 54 Pa. 97; Buzby’s App., 61 Pa. 111; Etter’s Est., 23 Pa. 381; McCrea’s Est., 180 Pa. 81; Gantz v. Tyrrell, 7 Pa. Superior Ct. 249; Donohue v. Mc-Nichol, 61 Pa. 73 ; Bell’s Est., 147 Pa. 389 ; Abbott v. Bradstreet, 85 Mass. 587 ; Childs v. Russell, 52 Mass. 16 ; Minot v. Tappan, 122 Mass. 535 ; Rotch v. Rotch, 173 Mass. 125 (53 N. E. Repr. 268); Dove v. Torr, 128 Mass. 38.
   Opinion by

Mr. Justice Mestrezat,

The purpose in construing a will is to ascertain the intention of the testator, so that it may be carried out in the disposition which he has made of his property. Technical rules of construction should only be resorted to and applied in the interpretation of wills when found to be necessary in determining the meaning of the instrument, so as to effectuate the purpose of the testator. If the language employed by him in disposing of his estate is plain and clearly discloses his intention the will interprets itself, and hence no rules of construction are necessary to aid in its interpretation. As well said by Sharswood, J., in Reek’s Appeal, 78 Pa. 432 : “ All mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law not to attempt to construe that which needs no construction.”

The learned judge below correctly observes in his opinion that remainders are to be regarded as vested rather than contingent, and that where property is limited by will to one for life, and after his decease to the testator’s next of kin or heirs, or other classes of persons similarly described, the persons who answer that description at the death of the testator and not those who answer it at the death of the tenant for life shall take, unless a contrary intent clearly appears from the will. But it should be added that when it clearly appears that the testator intended his heirs or next of kin at the death of the tenant or legatee for life to take, such intent will prevail: Buzby’s Appeal, 61 Pa. 111.

James F. Scott devised all his real estate to a trustee for the purposes named in his will. If he died without children, he directed his trustee to pay one-half of the proceeds of the real estate to his wife for life, and the other half to his three sisters and the survivor of them for life. Upon the death of his wife and sisters he devised one-third of his real estate to a nephew and niece, and “ the other two-thirds thereof to such child or children as I may leave, and the issue of such child or children as may be deceased ; and in default of such child or children or issue, then to those who would then be entitled thereto under the intestate laws of this state. And I authorize my said trustees aforesaid to convey and assure the same by proper assurances in law to said persons respectively.”

The land involved in this action passes under this last clause of the testator’s will, and, as the learned judge of the court below says, the question is whether it passed as a vested remainder to those who were at the time of the death of the testator entitled under the intestate laws, or as a contingent remainder to those who shall, at the death of the survivor of the life tenants, one of whom is yet living, be the next of kin of the testator and entitled to take as if the testator had died intestate at the moment of the death of the survivor of the life tenants. The court held that the estate devised to the remainder-men vested at the death of the testator, and passed to those who were entitled under the intestate laws at that time.

We think this was an erroneous interpretation of the will and defeats the clearly expressed intention of the testator. It is produced by the application of the rule of construction noticed above, without giving due consideration to the language of the will. This language is neither ambiguous nor indefinite, and therefore it is not necessary to invoke the aid of any rules of interpretation in construing the instrument. The testator did not die intestate as to any part of his estate. The one-third of his real estate he devised to his nephew and niece in fee, and the other two-thirds in dispute here were given to those who, at the expiration of the particular estate, would then be entitled thereto under the intestate laws of the state. This did not create an intestacy, but was simply descriptive of the persons who were to take as devisees under the will. They were such as would be entitled under the intestate laws, at the time the clause of the will became operative. This phrase of the devise, therefore, can have no significance in fixing the time at which the remainder-men were to be determined. The simple question here is, did the testator limit the estate devised to those entitled under the intestate laws to persons of that description living at his death, or at the death of the survivor of the life tenants ? The will itself, unaided by any technical rules of construction, gives a definite and unequivocal answer to the question. Its language is: “Upon the death of my said wife and all of my first named three sisters, I will .... the other two-thirds .... then to those who would then be entitled thereto under the intestate laws of this state.” The clause provides not only for the event which shall precede the passing of the estate, but also the time when the remainder-men are to be determined and the estate shall pass. The word “ then ” is used twice in this collocation of words and for both purposes. In the first connection, it is manifestly used as a conjunction, meaning “ in that event,” and in the second as an adverb of time, meaning “ at that time.” Inserting the definition for the word itself the clause will read as follows: “ Upon the death of my said wife and all of my first named three sisters .... in that event to those who would at that time be entitled thereto under the intestate laws of this state.” A universal rule in construing a will requires that if possible effect be given to every word and every part of it; and an equally well-established rule requires the usual and ordinary meaning to be given to words and terms in a will, unless the context shows that such was not the meaning intended by the testator. We must therefore give effect to “then” as used in both connections. It cannot be used in the second connection as a conjunction for the reason that it would be surplusage, it already having been used manifestly in that sense in the same sentence. Having been used twice so closely together in the same sentence, the word clearly was not employed the second time for the same purpose nor with the same meaning as at first used. If, therefore, it is given its adverbial significance in the second connection, it must refer to the death of the surviving life tenant as the time at which the remainder-men are to be ascertained. That is the only reasonable interpretation of which the word used in that connection is susceptible, and consequently the meaning with which the testator used it. This construction, we think, not only gives full effect to the word, but carries out the evident intention of the testator as disclosed by the entire will.

We cannot agree with the contention of the learned counsel of the appellee that the effect of the disposition of the remainder by the will is the same as if the testator had made no disposition of that part of his estate and had died intestate as to it. In the latter instance, it may be conceded that the intestacy would have taken effect as of the date of the testator’s death and the persons then competent would have taken the estate subject to the prior life tenancies. But the manifest purpose of the testator was to change the effect of an intestacy occurring at his death, and to give his real estate to persons other than those who would be his heirs at that time, and hence he devised it, on the death of the life tenant, to those “who would then be entitled ” and not to those “ who are entitled ” under the intestate laws of the state. If the testator had used the latter expression there would be some ground for the appellee’s contention. But the language employed leaves no doubt as to the persons who were intended as his beneficiaries.

We are of opinion that it was the intention of the testator, as disclosed by his will, to devise the two-thirds of the remainder of his real estate to those who shall be his heirs at the expiration of the particular estate, and not to those who were his heirs at the time of his death.

The agreement among those who were heirs of the testator at the time of his decease did not create vested interests in them so as to authorize them to convey a good title to the defendant. The will created a contingent remainder in a class to be ascertained at the death of the surviving life tenant, and hence only those of the class living at that date will have an interest in the remainder and will be capable of contracting in regard to it. We cannot see that Ralston’s Estate, 172 Pa. 104, has any application to the facts of this case.

The judgment of the court below is reversed, and in accordance with the terms of the case stated, judgment is now entered in favor of the defendant and against the plaintiffs for the sum of $1,000.


author: Mr. Justice Elkin,

text:
    Punxsutawney Iron Company v. Fort Pitt Malleable & Grey Iron Company, Appellant.

      Contract — Affidavit of defense — Practice, C. P. — Averment on belie}.

    In an action of assumpsit on a contract an affidavit of defense averring that the contract had been cancelled by plaintiff’s agent, is sufficient to prevent judgment, if the affiant uses the words “believes and says” in averring the agency, and then gives in detail the facts and circumstances relating to the course of dealing between the parties through the alleged agent, specifically stating that the agent had the authority to cancel the contract, and did cancel it, and concluding with the averment that all of the facts set out in the affidavit are “true and correct.”
    Argued Oct. 24, 1906.
    Appeal, No. 67, Oct. T., 1906, by defendant, from order of O. P. No. 1, Allegheny Co., Dec. T., 1904, No. 1,162, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Punxsutawney Iron Company v. Fort Pitt Malleable & Grey Iron Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for breach of contract of sale.
    The material portion of the supplemental affidavit of defense was as follows.:
    At all times defendant transacted all business with plaintiff through Rogers, Brown & Company of Pittsburg, and all matters in relation to said contract were taken up with them and' défendant had no business relations with the plaintiff whatsoever, and defendant believes and says that the said Rogers, Brown & Company were the agents for the said Punxsutawney Iron Company with full authority to conduct all business transactions for them, including the making and entering and canceling of all contracts and any other business whatsoever in relation to said contract.
    That during the time of the delivery of the aforesaid iron defendant would have received all iron according to its contract, attached to plaintiff’s statement of claim, but plaintiff, through its duly authorized agents, Rogers, Brown & Company, requested defendant not to sell the iron which defendant was receiving from them because defendant was underselling them and undermining the market price of the grade of iron covered by said contract, and that if said defendant would cease selling the said iron it, the said plaintiff, would cancel and discharge the said defendant from all liability under said contract, and upon which this suit is brought.
    Affiant says that on the morning of May 2, 1903, Guy M. Bassett, representing Rogers, Brown & Company, the agents of the plaintiff, as aforesaid, in all business transactions with defendant; on said date and time plaintiff, through said Guy M. Bassett, agreed with defendant, in a telephone conversation at that time, that in consideration of defendant agreeing to make no further sales of said iron purchased under the contract he would, representing the plaintiff as aforestated, divert the iron under said contract and cancel the contract and discharge the defendant from all liability thereunder. Defendant agreed to this proposition as stated, and did not sell any of the aforesaid iron. The next day, to wit: May 3, 1903, defendant received a letter dated May 2, 1903, signed by the said Guy M. Bassett, and attached to plaintiff’s statement of claim, and says that notwithstanding said letter neither the said Bassett or defendant paid any further attention to the contract. About two months thereafter, to wit: in July, 1903, the price of said iron had gone down below the contract price, to wit: to $18.00 per ton, and the said Rogers, Brown & Company, by the said Bassett, informed defendant that they would hold them to the terms of the contract.
    By reason of the premises defendant says it is not liable to the plaintiff in any sum whatsoever and that the cancellation of the contract, as made by the said Bassett, representing the said plaintiff, canceled the contract and discharged defendant from, all liability thereunder.
    January 7, 1907:
    All of which defendant says is true and correct.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      Edmond Englert, of Burleigh, Gray & Challener,

    for appellant, cited : Keffer v. Robinson, 2 W. N. C. 689.

      W. D. N. Rogers, with him O. S. Richardson,

    for appellee, cited: Rafferty v. Haldron, 81* Pa. 438; Lance v. Deacon, 39 Legal Int. 178 ; Winsor v. Nat. Bank, 81* Pa. 304; Boothe v. Alexander, 4 W. N. C. 492; Weld v. Barker, 153 Pa. 465; Newbold v.Pennock, 154 Pa. 591.
   Opinion by

Mr. Justice Elkin,

Judgment having been entered in the court below for want of a sufficient affidavit of defense this appeal was taken for the purpose of testing the correctness of that ruling. The plaintiff company relies on a contract in writing, for the sale and delivery to the defendant, at different times, a certain amount of pig iron upon the terms specified in said agreement. There was partial delivery and payment in full for the amount so delivered. The defendant, alleging a cancellation of the contract, refused to take the balance of the pig iron to be delivered according to the terms of the contract. This action was brought to recover damages for the alleged breach on the ground that there had been no authorized cancellation of the contract. The original and supplemental affidavits of defense aver a cancellation and set out in «detail the time, place and manner when and where made. The averment is that the cancellation of the contract was made through the authorized agent of the plaintiff. The court below did not state any reason for holding the affidavits of defense to be insufficient, but the learned counsel for appellee rely on Weld v. Barker, 153 Pa. 465; and Newbold v. Pennock, 154 Pa. 591, to support their contention that the averment of the agency of Rogers, Brown & Company and their authority to cancel the contract did not meet the legal requirements in such cases. In the latter case it was said that if the affiant cannot state the facts upon which he relies to defeat a recovery, of his own knowledge, that it is the best legal form to say that he “ is informed and believes and expects to be able to prove ” the facts at the trial of the cause. It was further suggested that the defendant or his counsel who departed from this approved form and undertook to establish another which he may think is a full equivalent, does so at his own risk. It, however, was not decided in that or any other case that it was an unbending requirement to use the words “is informed, believes and expects to be able to prove,” in an affidavit of defense, when affiant cannot state the facts of his own knowledge, although it is always wise to follow the approved form. In the present case the affiant uses the words “ believes and says ” in averring the agency and then gives in detail the facts and circumstances relating to the course of dealing between the parties through the alleged agent, specifically stating that the agent had the authority to cancel the contract, and did cancel it and concluded with the averment that all of the facts set out in the affidavit are “ true and correct.” This is sufficient to put the parties on their proof. It may be that upon a trial of the cause when the evidence has been produced it would be the duty of the court to say as a matter of law that sufficient authority had not been shown in the alleged agent to cancel the contract, but that question cannot arise at this stage of the proceeding.

Judgment reversed with a procedendo.


author: Mb,. Justice Elkin,

text:
    Wyss-Thalman, Appellant, v. Beaver Valley Brewing Company.

      Mechanic’s lien — Scire facias — Pleading—Trial on merits without flea — • Act of June 4, 1901, P. L. 431.
    Where a scire facias sur mechanic’s lien is tried on the merits, the issue being made up by the writ, the affidavit of defense and the replication, the trial court cannot be convicted of error because it refuses to direct a formal plea to be entered before the jury is sworn upon a motion for that purpose.

      Contract — Mechanic’s lien — Novation—Release of liens.

    Where under a contract a mechanic’s lien claimant is bound to release his lien as soon as it is obtained he will be held to have waived the right to file it in the first instance.
    Where an architect having a claim against a corporation capable of being reduced to a mechanic’s lien, enters into a contract in writing, executed by himself, the contractor, the corporation, and a person about to take an issue of the bonds of the corporation, and the contractor agrees to assume the payment of the claim of the architect, and the architect and the contractor covenant to give a release of liens, the architect cannot thereafter file and enforce a mechanic’s lien for his claim against the real estate of the corporation as under the facts there was a novation.
    Argued Oct. 16, 1906.
    Appeal, No. 151, Oct. T., 1906, by plaintiff, from judgment of C. P. Beaver Co., Dec. T., 1904, No. 218, on verdict for defendant in case of V". Wyss-Thalman v. Beaver Yalley Brewing Company.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Holt, P. J.
    At the trial the following agreement in writing was offered in evidence by the defendant:
    “ This article of agreement, made and entered into this tenth day of August, A. D. 1904, by and between Wm. H. Cox, party of the first part, and V. Wyss-Thalman and Gothard Wyss, parties of the second part, and the Beaver Yalley Brewing Company, party of the third party.
    “Witnesseth: That for the consideration hereinafter mentioned on the part of the party of the first part, the said Beaver Yalley Brewing Company, a corporation, etc., had at a meeting of their directors, approved selling the balance of their Bond issue, viz: $170,000, and $85,000 stock of said company to said party of the first part, for the total sum of One Hundred Thirty-six Thousand Dollars, in manner following; and in order to accomplish the execution of the above agreement, the parties of the second part agree as follows:
    “ First: The architect fees for which a bill has been presented by Y. Wyss-Thalman against said company for $15,040.48, shall be assumed by Gothard Wyss and paid by him to Y. W yss-Thalman.
    “Second: The said Gothard Wyss agrees to take the difference between his part of his contract with the Beaver Yalley Brewing Company and all claims of his subcontractors for material or labor furnished, in a second mortgage, payable in ten years with six per cent, interest, payable semi-annually, dated August 1st, 1904, with the privilege of paying the samé at par at any time upon six months’ notice to the mortgage holder.
    “ Third: Y. Wyss-Thalman agrees to retain $80,000 bonds which he now holds and not to sell the same less than par.
    “ Fourth. Y. Wyss-Thalman and Gothard Wyss agree to give a good and sufficient release from liens of said company; each taking the stock already alloted to them.
    “ Fifth. The said Gothard Wyss agrees to give the said Wm. H. Cox the thirty-five thousand dollars stock already alloted to said Gothard Wyss in the said company.
    “ Sixth. The said party of the first part agrees to pay unto the Beaver Yalley Brewing Company ten thousand dollars upon account of said purchase of stock and bonds upon the execution of this agreement.
    “ Seventh. The said party of the first part agrees to pay unto the Allegheny National Bank of Pittsburg, Pa., on the account of the Beaver Yalley Brewing Company, upon the twenty-second day of August, 1904, one hundred twenty-six thousand dollars, the balance of the purchase money for the $170,000 bond and $85,000 stock.
    “ Eighth. The Beaver Yalley Brewing Company shall give an option to Wm. H. Cox for the balance of treasury stock, to be sold at par, as follows :t The said party of the first part agrees to sell fifty thousand dollars of the treasury stock by January first, 1905, the balance within one year from date; and the money paid for the stock to be paid into the said company’s treasury.”
    The court charged as follows:
    The plaintiff in this case has filed a mechanic’s lien against the property of this company for $15,220.31. There is no contradictory evidence on the side of the plaintiff in this case, and the court says to you as matter of law, that if the defendant company had not offered any evidence in .the case, the court would have given binding instructions to you to find a verdict in the full amount of his claim, with interest from the time the work was completed. But the defendant has offered in evidence a contract, and certain other evidence in the case, concerning which there is no contradiction whatever, so far as the proofs before you are concerned, and tbat is a contract to this effect, so far as it concerns that part particularly, that the fees of the architect, which are the sums of money that the plaintiff seeks to recover in this action, for which a bill had been rendered and presented by Y. Wyss-Thalman against the defendant company, for $15,040.43, should be assumed by Got-hard Wyss and paid by him to Y. Wyss-Thalman.. This, gentlemen, was a novation, or a new contract, by which under the law, Gothard Wyss, the contractor, assumed to pay the plaintiff the sum of $15,040.43, and the plaintiff, Y. Wyss-Thalman, agreed to accept it. Now, gentlemen, if this amount of money, $15,040.43, was not the full amount of the plaintiff’s claim, the plaintiff would not lose that amount, — he could recover that in another form of action, an action of assumpsit as against the company. In this instrument of writing, Exhibit No. 1, there is also another section. In the fourth section V. Wyss-Thalman and Gothard Wyss agree to give a good and sufficient release from liens of said company, each taking the stock already alloted to him. Now, gentlemen, this contract is a matter for the court to interpret to you, and the court says to you as a matter of law that this section which the court has just read, did, if not in form cover a release or relinquishment of the right to file liens, amount to such conduct upon the part of the plaintiff as equitably estops him from filing or maintaining a mechanic’s lien against the terms of his agreement; section 15 of the act of 1901, in relation to mechanics’ liens, reads in part as follows : “ The right to file a claim may be waived by agreement between the claimant and the party with whom he contracts, or by any conduct which operates to equitably estop the claimant; ” and we say to you that under the contract exhibit 1 of this date the plaintiff has no right under the law to maintain this action. We therefore instruct you to render a verdict in favor of the defendant.
    Yerdict and judgment for defendant. Plaintiff appealed. .

      Errors assigned were (1) in refusing to direct a plea to be entered.in the case before the jury was sworn ; (6) the whole charge.

      J. F. Reed, for appellant.
    The uniform practice in all the courts of the commonwealth down to the present time, in a scire facias sur mechanic’s lien, had been to require a plea in order to join the issue: General Eire Extinguisher Co. v. Magee Carpet Works, 199 Pa. 647.
    January 7, 1907:
    Our contention is that under the mechanic’s lien act of 1901, the pleadings remain the same as under the old act, and require a plea to join the issue.
    As we interpret the contract of August 10, 1904, Exhibit No. 1, V. Wyss-Thalman could not be called upon to furnish a release until he received his money or was tendered the same: Taylor v. Murphy, 148 Pa. 337.

      J. M. Swearingen, with him William A. McConnell and James H. Cunningham, for appellee.
    The absence of a short formal plea cannot be held to be ground for reversal, particularly as such formal pleading could now be supplied at this bar. But a formal plea is not required.
    Appellant cannot recover because the contract of August 10, 1904, bars his right.
    A contract may be discharged by the acceptance by the creditor of a new debtor in place of the old one, where the original parties and the new party are all parties to the agreement : 9 Cye. of Law & Procedure, 595.
    If the appellant cannot recover so long as said contract of August 10, 1904, stands in his path, the only way he could have recovered was by rescission of said contract, and that he cannot do: Summers v. Ritchie, 30 Pa. 147.
    A party who attempts to rescind a contract must be himself in no default: Campbell v. Shrum, 3 Watts, 60 ; Boyd v. McCullough, 137 Pa. 7.
   Opinion by

Mb,. Justice Elkin,

The first assignment seeks to convict the learned court below of error in not directing a formal plea to be entered before the jury was sworn when a motion for this purpose was made. Prior to the Act of June 4, 1901, P. L. 431, it was the practice to require a plea to join the issue on a sci. fa. sur mechanic’s lien, but the question of what is the proper practice under tins act has not been decided. The statute in express terms declares it to be its intention to “ furnish a complete and exclusive system in itself ” relating to mechanics’ liens. Section 82 provides that the claim shall be sued out by writ of scire facias and prescribes the exact form of the writ, in which the defendant is notified to file an affidavit of defense and upon failure to do so judgment may be entered against him. Section 34 further provides that the defendant may require plaintiff under oath or affirmation to reply to the statements set out in the affidavit of defense. All of this would seem to indicate that it was the legislative intention to make the system “ complete- and exclusive ” in the method of procedure as well as in the manner of filing the claim and in all other matters relating thereto. While the entry of a plea as required under the old practice would seem to be the better pleading, yet the legislature has omitted this requirement from the new system and the courts ought not to be convicted of error for a refusal to direct a formality in pleading not required by the statute. The case went to trial on the merits, the issue being made up by the writ, the affidavits of defense and the replication, and at best it could not be said that appellant had suffered any injury by failure to enter a plea even if it had been required.

On the merits the whole controversy depends upon the construction of the tripartite agreement of August 10, 1904. A brief recital of the facts will throw some light upon the question involved. In 1902, the Wyss brothers with some associates, organized and secured the incorporation of the Beaver Valley Brewing Company. Gothard Wyss was awarded the contract for the construction of the brewery and other necessary buildings. V. Wyss-Thalman, brother and appellant, was selected as architect. At the time of -the completion of the buildings in the summer of 1904, the company had some difficulty in meeting its financial obligations as is shown by the fact that a large sum of money was due the contractor and subcontractors. The company had no ready money to meet its obligations. There was an authorized bond issue of $200,000, of which amount appellant owned $30,000, and $170,000 remained in the treasury not disposed of. The only way in which the company could raise money was to sell its bonds and stock. At this time there was due about $90,000 to subcontractors ; appellant claimed something over $15,000 for his services as architect; and a large balance was due Gothard Wyss upon his contract. These claims could be reduced to liens and if so the value of the bonds would be largely depreciated if not entirely destroyed. This was the situation when the contract in question was entered into. Cox, the prospective purchaser of the bonds and stock, was the first party; Gothard Wyss and appellant, the second parties, and the brewing company, the third party. • Appellant not only acted for himself in his individual capacity, but represented the brewing company'as its president in the negotiations. It is apparent that all of the parties were desirous of clearing up the situation so that the company might be placed on a substantial financial basis. Cox wanted the assurance that the value of the bonds •would not be depreciated by threatened liens; the Wyss brothers were interested as promoters of the company and holders of the bonds and stock of the corporation which would be rendered valueless if the indebtedness was not paid, and in addition, Gothard Wyss was personally liable for a large amount of money due his subcontractors; the brewing company must pay its indebtedness or go into the hands of a receiver. The parties met this situation by the execution of the contract above referred to, the first clause of which fixes the amount of fees due appellant as architect, about which there had been some dispute, and provides that the sum so agreed upon “ shall be assumed by Gothard Wyss and paid by him to V. Wyss-Thalman.” The court below held that this was a novation, it being the intention of the parties to substitute a new debtor, Gothard Wyss, in place of the old one, the brewing company, and to release the latter from making payment to appellant. This is very much like a common instance of novation where, upon the dissolution of a partnership, the remaining partners agree as between themselves and the retiring partner, that they will assume the liabilities of’ the old firm and give notice to this effect to the creditors, who approve of the same; in such a case" there is a new contractual relation between the creditors and the néw firm, to the effect that they will accept the new liability instead of the old one, and, on the other hand, that the new firm promises to pay them for that consideration. Of course, in the illustration given the obligation of the old-partnership is extinguished. In the present case Gothard Wyss by express covenant assumes and- agrees to pay the fees due appellant as architect, and the only reasonable interpretation of the agreement is that the new debtor was accepted instead of the old one. This view is strengthened by the covenant in the fourth clause, which provides for a release from liens and places the burden of furnishing the releases upon appellant and Gothard Wyss. If, as contended, appellant did not intend to accept the liability of Gothard Wyss instead of the brewing company, his most effective method of securing payment would be to file a mechanic’s lien and enforce the collection thereof. His covenant against liens is nob consistent with the contention that he intended to assert his claim through a lien against the company appellee. The contract as a whole is not susceptible of any other reasonable interpretation than that there was a novation in which Gothard Wyss agreed to pay-the amount due appellant who accepted the new obligation instead of the old which was released thereby. But even if it were held not to be a novation appellant could not maintain his lien, because he covenanted to give a release from liens, and on the strength of that covenant the bonds were purchased and the proceeds paid to the brewing company. The purchaser of the bonds was contracting to protect the holders thereof from liens, and appellant in connection with his brother agreed to give releases. Under these circumstances, it would be most inequitable and unjust to permit the covenantor to defeat the legal effect of his own covenant by subsequently filing a lien. In this respect the case comes within the rule of Rynd v. Pittsburg Natatorium, 173 Pa. 237, in which it was held that where under the legal effect of the contract the claimant was bound to release the lien as soon as it was obtained, he will be held to have waived the right to file it in the first instance. If, at the time the contract was executed the lien of appellant had been of record, it would have been his duty to give a release. This seems to be conceded. The fact that it was filed subsequently does not affect the legal rights of the parties. The law looks to the substance of -the transaction, which in this case was that there should be a release from liens in order that the first mortgage bonds would have the security to which they were entitled and to protect which the contract was made. The case is clearly within the letter and spirit of section 15 of the act of 1901, wherein it is provided “ the right to file a claim may be waived by an agreement between the claimant and the party with whom he contracts, or by any conduct which operates to equitably estop the claimant.” Independently of all other considerations the appellant must be held to have been equitably estopped by his conduct and agreement in this transaction from filing and attempting to enforce the collection of a lien. All of the questions raised as to the rescission of the contract and refusal to admit certain offers of testimony are without merit.

, Assignments of error overruled and judgment affirmed.


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    Wyss, Appellant, v. Beaver Valley Brewing Company.

      Mechanic’s lien — Release of liens — Contract—Consideration.
    Where a contractor in consideration of his being released from his personal liability to a subcontractor, and also in consideration of the execution to him of a second mortgage on the building, covenants to furnish a release of liens, he will not be permitted to repudiate his contract by saying that his covenant was to give a release from liens, not to refrain from filing a lien. His covenant to release is the equivalent of a covenant not to file.
    Argued Oct. 16, 1906.
    Appeal, No. 152, Oct. T., 1906, by plaintiff, from judgment of C. P. Beaver Co., March T., 1905, No. 85, on verdict for defendant in case of Gothard Wyss v. Beaver Valley Brewing Company.
    Before Mitchell, C. J., Fell, Bkown, Pottek, Elkin and Stewakt, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Holt, P. J.
    The facts appear by the report of the case of Wyss-Thalman v. Beaver Valley Brewing Company, ante, p. 435.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      JSrror assigned was in giving binding instructions for defendant.

      J. F. Reed, for appellant.

      January 7, 1907 :

      J. M. Swearingen, with, him William A. Me Connell and James S. Cunningham, for appellee.
   Opinion by

Mr. Justice Elkin,

All that has been said in Wyss-Thalman v. Beaver Valley Brewing Company, ante, p. 435, applies to this case. The equities are stronger against the appellant here. Under the contract of August 10, 1904, appellant was relieved of his personal liability to his subcontractors, amounting to more than $90,000, and he received a second mortgage in the sum of $55,000 for the balance due him on his building contract. He accepted the mortgage, had it recorded, and has received the interest as it accrued from time to time. The mortgage is in the exact terms of the contract, and having been accepted by appellant as shown by the testimony, the presumption is that it was a compliance therewith. He has therefore received the benefits accruing to him under the contract, and cannot be permitted to repudiate its obligations. He cannot approbate and reprobate the contract. He cannot accept the benefits and refuse to perform the duties imposed upon him. The contract stands as a whole, and must be enforced in all of its parts. Appellant agreed to furnish a release from liens, and he cannot be permitted to repudiate his contract by saying “ my covenant was to give a release from liens, not to refrain from filing a lien.” This distinction is too shadowy to be convincing. The legal effect of his contract was to furnish a release from all liens, his own as well as others, and it would do violence to the whole purpose of the transaction to permit him to file and enforce his own lien when he had covenanted to release from all liens. As to outside parties he might not be able to control them in the filing of liens, but in such event, under his contract, he must secure a release, but as to himself the covenant to release was the equivalent of a covenant not to file : Rynd v. Pittsburg Natatorium, 173 Pa. 237.

' Assignments of error overruled and judgment affirmed.


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    Willets, Administrator, v. Metcalf.

      Mortgage — Sheriff’s sale — Distribution of fund.

    Where three lots owned by the same person are covered by various mortgages and all three by one of the mortgages, and two of the lots have been sold in foreclosure proceedings, but the third has not been sold, the court cannot place a valuation on the unsold lot, and then treat the proceeds of the sale of the first two lots and the valuation of the third lot as a fund for distribution.
    Argued Oct. 22, 1906.
    Appeal, No. 4, Oct. T., 1906, by the Provident Trust Company, from order of C. P. No. 1, Allegheny Co., June T., 1905, No. 127, dismissing exceptions to sheriff’s return of distribution in case of E. A. Willets, Administrator c. t. a. of the Estate of Isaac Willets, deceased, now for use of Robert W. Sutton v. Frank Metcalf.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to sheriff’s return.
    The facts .are stated in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions to sheriff’s return. •

      Harvey A. Miller, for appellant.
    Plaintiff had not the right to refuse to accept his money and to stay his writ in the interest of another creditor not a party to the same: Clausen v. Bellevue B. & L. Assn., 7 Pa. Superior Ct. 217; Platt-Barber Co. v. Groves, 193 Pa. 475; Lyon v. Hampton, 20 Pa. 46.
    An incumbrancer having a lien upon one of two funds has an equity to require a senior incumbrancer having a lien upon both, to exhaust the other of said sources first; and this equity may exist not only as against the debtor and the senior incumbrancer, but also against a mortgagee holding a junior lien upon the second fund alone: Appeal of Robeson, 117 Pa. 628; Lehman’s Executors v. Tammany, 7 Kulp, 235; Clausen & Son v. Bellevue B. & L. Assn., 7 Pa. Superior Ct. 217; Tigue v. Banta, 176 Pa. 414; Patrick & Co. v. Smith, 2 Pa. Superior Ct. 113.

      Under the Act of April 22, 1856, sec. 9, P. L. 532, the court should have controlled the execution in above case directing a sale of the third property, so as to subserve the rights and equities of the parties interested as lien creditors or owners: Pratt v. Waterhouse, 158 Pa. 45; Hunt v. Breading, 12 S. & R. 37 ; Burk, Thomas & Co.’s App., 89 Pa. 398.
    It is an old and well-established principle that where a purchaser’s interest in real estate is swept away by another sale under a paramount incumbrance, he has the right to come in on the fund in distribution.

      John M. Freeman, with him D. T. Watson and Marlcer & Hollingsworth, for appellee.
    The appellant having acquired title at sheriff’s sale, under what is in equity a fourth mortgage; is not entitled to any part of the fund for distribution until'the payment of the first mortgage and the other prior liens in full: Graff’s Estate, 139 Pa. 69; Shimp’s Assigned Estate, 197 Pa. 128; Order of Solon v. Gunther, 8 Pa. Superior Ct. 319; Hoover v. Epler, 52 Pa. 522.
    The appellant is not in any aspect of this case entitled to any part of the fund arising from the sale of the three lots, as the equities of the second and third mortgages on other parts of the mortgaged premises are superior to that of appellant: Shimp’s Assigned Est., 197 Pa. 128.
    The court cannot treat land as a fund and in that way make a distribution of the third lot remaining unsold. The court can distribute nothing but money in its actual possession: Order of Solon v. Gunther, 8 Pa. Superior Ct. 319.
    An execution is the process of the plaintiff, and is wholly under his control, and the writ may be stayed without affecting the plaintiff’s rights against the real estate: McLaughlin v. McLaughlin, 85 Pa. 317; Yost v. Smith, 105 Pa. 628.
    The rule that where mortgaged premises have been sold in parcels, the same must be applied in satisfaction of the mortgage debt in the inverse order of alienation cannot be invoked by the plaintiff, as he is a purchaser at a sheriff’s sale, and this rule applies only to a purchaser under a general warranty deed: Carpenter v. Koons, 20 Pa. 222; Steele v. Walter, 204 Pa. 257.

      January 7, 1907:
   Opinion by

Mr. Justice Elkin,

We have carefully examined this case to ascertain if appellant has any equity or legal standing to support its contention, which in the main, is, that the court below erred in not appointing an auditor to distribute the funds on the basis of and in proportion to the amounts received on the sale of the first and second properties and the alleged admitted value of the third property. Inasmuch as the third property had not been sold, and there was no fund in court for distribution arising from the sale of that property, it is difficult to see upon what theory the court could be asked to place a valuation on the unsold lot and then treat the proceeds of the sale of the first two lots and'the valuation of the third lot as a fund for distribution. This is precisely what the appellant is seeking to do, at least in legal effect. It cannot be done. Metcalf was the owner of three lots in Negley Place, which for the purpose of this case are designated as lots Nos. 1, 2 and 8, upon which said three lots four mortgages were placed. The first mortgage covered the entire three lots and belongs to the use plaintiff; the second mortgage covered all of lot No. 3 and part of lot No. 2; the third mortgage covered all of lot No. 3 and a very small part of lot No. 2; the fourth mortgage being the one held by appellant, covered parts of lots Nos. 1 and 2. The mortgages were of record and had priority of lien in the order named. Appellant issued a sci. fa. on the fourth mortgage, obtained judgment thereon and had the property sold by the sheriff, at which sale it became the purchaser of lots Nos. 1 and 2, subject of course to the lien of the first mortgage. Subsequently foreclosure proceedings were begun on the first three mortgages whose priority of liens on the respective properties antedated that of appellant. Lots Nos. 1 and 2 were then sold upon a judgment obtained on the first mortgage, appellant becoming the purchaser of one of the lots, the proceeds arising from the sale being the fund in court for distribution. The amount of the fund, after deducting taxes and costs, is $20,504.72, which the' sheriff has distributed on account of the debt of the first mortgage. There still remains a balance due on the first mortgage of about $7,500 which is a first lien on lot No. 3. The writ was stayed as to that lot because it is suggested there was not a sufficient bid to cover the liens. When it was offered for sale appellant bid $8,000 and now its principal complaint is that the writ was stayed and the bid not accepted. The plaintiff had a perfect right to stay his writ and appellant was not in a position to in any manner control it. It must be remembered that appellant had no lien on lot No. 3. Its lien was on lots Nos. 1 and' 2 which had been sold and the proceeds, clearly applicable to the first mortgage, are to be so distributed. There is not even a suggestion of insufficiency of bid, fraud or collusion as to the sale of lots Nos. 1 and 2, and this being the fund for distribution there is no reason either in law or equity why it should not be distributed to the holder of the first mortgage, the creditor to whom it belongs.

Under the facts of this case the equities of the second and third mortgages are superior to the equity of appellant; and in any event it could have no interest in the fund arising from the sale of lot No. 3. The whole contention is without merit and the assignments of error are overruled.

Decree affirmed.


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    McMahan v. Burns, Appellant.

      Principal and agent — Sale of land — Interest in land — Revocable agency— Consideration — Commissions—Time limit.

    The mere fact that an agent for the sale of land is given an unusually large commission on the sales amounting to more than one-half of the purchase money, does not of itself give the agent such an interest as to make the agency irrevocable.
    A provision in an agreement of agency that it shall not be revoked for five years, cannot be sustained where there is no consideration for it independent of the compensation to be rendered for the service to be performed.
    Argued Oct. 22, 1906.
    Appeal, No. 5, Oct. T., 1906, by defendant, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1,279, granting injunction in case of Thomas Mc-Mahan and A. McMahan v. C. M. Burns and J. I. Martin, trading as Burns & Martin.
    Before Mitchell, C. J., Fell, Brown; Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Bill in equity for an injunction to restrain the defendants from attempting to sell any of the land of the complainants by reason of an alleged revocation of a contract of agency, and for an account.
    From the record it appeared that the plaintiffs were owners of land in Rostraver township, Westmoreland county, Pennsylvania, containing about ninety-five acres, and that they entered into an agreement with the defendants that the latter should lay out the lands in lots, and sell the lots upon the terms therein named. The land was laid out in lots by defendants, and certain of the lots were sold. On May 16, 1908, a new agreement was entered into between the parties which superseded the old agreement. This agreement in substance provided that the sales theretofore made by the defendants in their own names should be ratified and confirmed by plaintiffs, and, second, that for the purpose of selling the remaining lots, as well as any others which should revert to the owners by forfeiture or otherwise, the defendants were made and constituted agents of the plaintiffs to make sales upon certain conditions, among which were, the purchase price of lots should not be less than $400 without the written consent of the parties of the first part, and that the sale should be made in a certain form. It was further provided that the defendants should receive a commission of ten per cent on the selling price of each lot, to be taken out of the first money collected on sales, the sale of each lot to be treated as a separate transaction, and in addition they were to receive five per cent on all moneys collected by them on each sale, and after deducting these commissions the balance of the purchase money should be applied first, to pay to the plaintiffs $80.00 on each lot, and the balance should be divided three-eighths to the plaintiffs and five-eighths to the defendants. The agreement further provides for leaving in the hands of the defendants a certain balance then due by them to the plaintiffs, amounting to some $3,000, to be applied to expenses to be thereafter incurred under the agreement, these expenses to be accounted for in each monthly statement, and that monthly statements should be furnished and monthly payments made ; and it was further provided that if purchase money mortgages were taken they should be assigned in the proportion of three-eighths to the plaintiffs and five-eighths to the defendants, and that.this agreement should continue in 'force for five years from January 10, 1902. Subsequently a dispute arose between the parties, and dn July 13, 1904, plaintiff served upon the defendants a notice of revocation. Defendants disregarded the notice.
    SHAFEE, J., filed the following opinion :
    1. The plaintiffs contend that, they are justified in revoking the contract of the agency of the defendants, because (1) they claim that the fact that the defendants did not keep the money intrusted to them for the purpose of paying expenses, etc., in bank, but were using it for their own purposes appeared from the refusal of the payment of a check; and (2) that the relationship between the parties was that of principal and agent only, and that defendants have no interest in the subject-matter, and that, therefore, the agency was revocable at any time at the pleasure of the plaintiffs.
    2. As to the alleged ground of revocation we think that if the agency was otherwise irrevocable, the reasons alleged would not be sufficient to justify a rescission of it.
    3. The real question in the case is whether or not the contract between the parties gives the defendants any interest or estate in the land therein described, or, in other words, -whether their power of sale was, or was not, coupled with an interest. Upon a careful examination of the contract between the parties we are unable to find anything in it which makes it different, in legal effect, from an ordinary employment of an agent to sell lands on commission. In the present case the commission is very large, being considerably more than one-half of the purchase money. We cannot see, however, that the amount of the compensation in any way affects the interpretation of the instrument. It has been held that an interest in the proceeds of sales as compensation for executing them is not such an interest as makes the agency irrevocable : Blackstone v. Butter-more, 53 Pa. 266.
    The only other question contained in the agreement relied upon by the defendants is the provision that the agreement is to continue in force for five years. If this clause be looked upon as an agreement not to revoke for five years, we are of opinion that it is governed by the case of Blackstone v. Buttermore, 53 Pa. 266, where it is said that “ in order to make an agreement for irrevocability contained in a power to transact business for the benefit of the principal binding on him, there must be a consideration for it independent of the compensation to be rendered for the service to be performed.”
    The fact that the defendants have been at considerable, expense in laying out the lands of the plaintiffs in lots, advertising the same and endeavoring to sell the same, does not deprive the plaintiff of his power of withdrawing his lots from sale, or employing another agent for the purpose if he so desires, but does, of course, make the plaintiff liable to the defendants for all damages they may have sustained.
    We are of opinion, therefore, that the agency of the defendants for the plaintiffs for the sale of their lands above mentioned was efficiently revoked on July 13, 1904, and that the defendants thereafter had no right to continue to attempt to make sales of the plaintiffs’ land, or to collect purchase money owing to them under the agreement, but were bound to surrender the papers in their hands and to account in regard to the moneys already received by them. The plaintiffs are, therefore, entitled to a decree enjoining the defendants from making sale of any lots of the plaintiffs, from collecting or attempting to collect moneys due under contracts of sale heretofore made of such lands, and from pretending to act as agents of the plaintiffs under the agreements above mentioned, and for an account of the moneys paid out by the defendants for the plaintiffs since the making of the agreement, and that the defendants deliver to the plaintiffs all contracts entered into by them, whether in their own names or the names of the plaintiffs as agents for the plaintiffs for the sale of lots in the said plan, which are in their possession or control, and that the defendants pay the costs.
    The court entered a decree in accordance with the opinion..

      Error assigned was the decree of the court.

      W. H. S. Thomson, with him Frank Thomson, for appellants.
    Plaintiffs have no standing in equity : Manhattan Medicine Co. v. Wood, 108 U. S. 218 (2 Sup. Ct. Repr. 436) ; City of Chicago v. Wright, 69 Ill. 318 ; Kentucky Wagon Mfg. Co. v.

      January 7, 1907 :
    Ohio, etc., R. R. Co., 98 Ky. 152 (32 S. W. Repr. 595) ; Acheson v. Stevenson, 13.0 Pa. 633 ; Mints’s App., 128 Pa. 163.
    Plaintiffs are not entitled to a decree unless willing to award damages to defendants for their own admitted breach of contract : Clarke v. Tipping, 4 Beavan, 588 ; Clum v. Brewer, 5 Federal Cases, 2,910.
    This contract is not a contract of agency, and not revocable at the will of plaintiff: Hunt v. Rousmanier, 21 U. S. 174; Smyth v. Craig, 3 W. & S. 14; Lightner’s Appeal, 82 Pa. 301; Bancroft v. Ashhurst, 2 Grant, 513 ; Coffin v. Landis, 46 Pa. 426.
    Though plaintiff may have legal power to revoke, he has not a legal right' to revoke the contract of agency when entered into for a specified time : Hand v. Coal Company, 143 Pa. 408; Richardson v. Eagle Machine Works, 78 Ind. 422; Howard v. Daly, 61 N. Y. 362.

      S. S. Robertson, for appellees.
   Per Curiam,

Decree affirmed on the opinion of the court below.