text:
    Townsend v. Lacock, Appellant.

      Deed — Articles of agreement — Omission of consideration — Mistake— Parol evidence — Evidence.
    When a deed of land is only the fulfillment in part of previous articles of sale, the covenants in the articles are not merged in the deed, and neither any rule of evidence, nor the rule as to a merger of a preliminary contract in the deed debars the grantor from alleging and procuring the true consideration for the sale, and from proving that through the mistake of the scrivener, various covenants to be performed by the grantee were wholly omitted in the deed.
    Argued Oct. 7, 1908.
    Appeal, No. 85, Oct. T., 1908, by defendant, from decree of C. P. Armstrong Co., March T., 1907, No. 1, on bill in equity in case of A. K. Townsend v. George S. Lacock, Guardian of George W. Townsend, minor child of G. W. Townsend, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to reform a deed.
    Patton, P. J., filed an opinion, which concluded as follows:
    CONCLUSION OF LAW.
    The conditions and stipulations of the article of agreement of June 4, 1898, as to giving of grain, amount of land to be farmed, and the payment of purchase money were not merged by the deeds of December 10, 1901.
    DISCUSSION.
    On June 4, 1898, A. K. Townsend entered into an agreement with his son, G. W. Townsend, to convey to him certain land. This agreement was followed by deeds dated December 10, 1901, between the same parties, for the same property.
    In the article of agreement it was agreed that the vendee should perform certain covenants, viz.:
    1. Pay $10.00 per acre for the land on the death of the vendor and his wife.
    2. Give A. K. Townsend one-third of all the. grain raised during his life in lieu of interest on the consideration money.
    3. Farm at least thirty acres per year.
    4. Keep open a certain road through the farm.
    The deeds did not contain any of these covenants, but were plain general warranty - deeds, with receipts for the purchase money in full.
    In our opinion the important question in the case is: Were the terms and conditions of the agreement so merged in the deed that they cannot be enforced? In our opinion the authorities are clear that they were not.
    That' the vendee or his successor, the guardian, has not complied with his covenants since 1904, is not disputed, except that there are receipts, on the deeds, for the consideration money. But is that conclusive, or does it.estop the plaintiff from showing the truth? Certainly not.
    In Hamilton v. McGuire, 3 S. & R. 355, it is said: “That such a receipt and acknowledgment were not a bar in pleading, or in evidence conclusive; but they are evidence of the lowest order; that it is everyday practice to have a receipt on the back of a deed, when perhaps nine times in ten there was not a shilling paid.”
    In Eshelman’s Estate, 143 Pa. 24, are collected a number of cases holding “that the presumption of actual payment arising from the receipts contained in the deed, and from the release, is not a conclusive presumption, but may be rebutted by parol proof.”
    “But it is perfectly well settled law that receipts, whether contained in deeds or elsewhere, are not conclusive of the payment of money, but only prima facie proof, and always open to explanation:” Nichols v. Nichols, 133 Pa. 438.
    The authorities are numerous that when the deed is only the fulfillment in part of the article, the covenants are not merged in the deed, though it is executed, delivered and accepted. Neither any rule of evidence nor the rule as to a merger of a preliminary contract in the deed of conveyance, debars the plaintiff from alleging and procuring the true consideration for the sale, and that through mistake the consideration was incorrectly stated in the deed: Wilson v. Pearl, 12 Pa. Superior Ct. 66.
    It is admissible to prove the true contract, and that part of it was omitted from the writing by mistake. And this can be proved by the scrivener, and by the admissions and declarations of the vendee, deceased at the time of the trial: Schotte v. Meredith, 192 Pa. 159.
    In 19 Pepper & Lewis’ Digest of Decisions, column 32,573, can be found many cases that are exceptions to the general rule, that the execution and acceptance of a deed of conveyance, is a consummation of all previous agreements between the parties,"and the articles of agreement may be given in evidence to show that their conditions have not been complied with.
    In Byers v. Mullen, 9 Watts, 266, there was a deed and a receipt in full for the consideration money. The article of agreement showed that the vendee had agreed to pay off a certayn judgment. It was offered in evidence, but rejected by the court because merged in the deed. Held, to be error, and that the vendee could show, notwithstanding the deed, that the vendor had not complied with the article of agreement.
    In Harbold v. Kuster, 44 Pa. 392, the article of agreement contained a reservation of the grain in the ground, but the deed subsequently given contained no mention of such reservation. It was held that there was no merger and that the agreement could be enforced.
    Taking the facts of this case and applying the law as we find it, we are convinced that the article and deed are not contradictory, and that both can stand, one.the fulfillment of the other. It would have been better to have included all the covenants of the article in the deed, but by the mistake of the scrivener they were left out. This was unfortunate, but should not be allowed to overthrow the true agreement between the parties.

      Error assigned was decree in favor of the plaintiff.

      Joseph A. Langfitt and W. A. McAdoo, with them H. W. McIntosh, for appellant.
    The deed cannot be reformed so as to cover the covenants in the articles: Dorris v. Morrisdale Coal Co., 215 Pa. 638; Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133; Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Williamson v. Carpenter, 205 Pa. 164; Keller v. B. & O. R. R. Co., 10 Pa. Superior Ct. 240; Thomas v. Loose et al., 114 Pa. 35; Phillips v. Meily, 106 Pa. 536; Nettleton v. Caryl, 20 Pa. Superior Ct. 250, 254; Schotte v. Meredith, 197 Pa. 496; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Thayer v. Seep, 168 Pa. 414; Van Voorhis v. Rea Bros. & Co., 153 Pa. 19; Honesdale Glass Co. v. Storms, 125 Pa. 268.
    The only possible mistake disclosed is one of law on the part of the scrivener in his advice to the parties as to the legal effect of the deeds on the article of agreement. For such a mistake the plaintiff has no standing to have the deeds set aside or reformed: Clapp v. Hoffman, 159 Pa. 531; McAninch v. Laughlin, 13 Pa. 371; Rankin v. Mortimere, 7 Watts, 372; Cozens v. Stevenson, 5 S. & R. 421; Tagg v. Behring, 10 Atl. Repr. 782; Moser v. Miller, 7 Watts, 156; Murray v. R. R. Co., 103 Pa. 37; Snyder v. Phillips, 25 Pa. Superior Ct. 648.
    When articles of agreement are-entered into by .which a conveyance of land is covenanted to be made and afterwards a conveyance is executed and accepted, which differs in some respect from the articles, the deed of conveyance, which is the consummation of the agreement, shall be taken for the ultimate intent of the parties, and prevail over the articles: Crotzer v. Russel, 9 S. & R. 78; Moser v. Miller, 7 Watts, 156; Wilson v. McNeal, 10 Watts, 422; Shontz v. Brown, 27 Pa. 123; Jones v. Wood, 16 Pa. 25; Schenley v. Pittsburg, 104 Pa. 472.

      M. F. Leason, with him C. E. Harrington, for appellee,
    cited: Byers v. Mullen, 9 Watts, 266; Harbold v. Kuster, 44 Pa. 392; Schotte v. Meredith, 192 Pa. 159; Wilson v. Pearl, 12 Pa. Superior Ct. 66; Com. v. Stevens, 178 Pa. 543; Hancock v. Melloy, 187 Pa. 371.
    November 2, 1908:
   Per Curiam,

The judgment is affirmed on the discussion and conclusion of law by the court below.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Miller’s Estate.

      Decedents’ estates — Claim for services — Uncle and niece — Clerical and housekeeping services — Evidence.
    »A claim by a niece against her deceased uncle’s estate for an amount over ¡$2,000 for clerical and housekeeping services during a number of years, will be disallowed, where the evidence as to an alleged contract for süch services is based upon the declarations of the decedent, and is vague and indefinite, and the evidence as to the services rendered- showed that the claimant had written only a few letters, and had performed at intervals only a few trifling household'duties.
    Argued Oct. 7, 1908.
    Appeal, No. 163, Oct. T., 1908, by Martha A. Shirley, from decree of O. C. Armstrong Co., June T., 1907, No. 31, sustaining exceptions to auditor’s report in Estate of Robert Miller, deceased.
    Before Mitchell, C. J., Fell, Brown; Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of J. R. Leason, Esq., auditor.
    From the record it appeared that the auditor allowed the claim of Mrs. Martha A. Shirley against the estate for $1,728 for services.
    . Various exceptions were filed to this allowance.
    Patton, P. J., sustained the exceptions, filing the following opinion:
    The above exceptions all go to the allowance by the auditor of $1,728 to Mrs. Martha Shirley for services rendered to-the decedent.
    As the auditor admitted a large amount of irrelevant testimony, and heard incompetent witnesses, we labor under great difficulty to separate the wheat from the chaff; but believe that justice can be reached, and this tedious litigation ended by undertaking to do so, rather than refer the matter back-again to the auditor.
    There can be no doubt that Martha Shirley, the claimant, was incompetent to testify against the estate of the deceased, and that her husband, John T. Shirley, on account of the identity of interest of husband and wife, when one of them was incompetent to testify because of interest, was also incompetent. Therefore, their • testimony should have been refused by the auditor and not considered by him.
    The undisputed facts are- that Robert Miller died July 7, 1904, being about seventy-eight or seventy-nine years old, unmarried, and without issue, leaving to survive him only collateral heirs, no closer than nephews and nieces. For many years prior to his death he had lived with a sister, who died in May, 1904.
    The testator was one of a type found in every community, poor in his youth, and through close economy during his entire life, had acquired a competency; but at the same time had acquired habits that caused mental pain equal almost to physical suffering when compelled to part with a dollar. The testimony shows that he was exceedingly careful in contracting, obligations, and equally careful in promptly discharging them.
    Thus viewing the decedent and his surroundings, we will consider the claim of Mrs. Shirley. It seems to have been first presented before the auditor on February 17, 1908, and reads as follows:
    “Robert Miller to Mrs. Martha A. Shirley, Dr., July 7, 1904. To services as clerk and assistant housekeeper for and during the past six years, at the rate of $20 per month, $1,440.00.” The important and material testimony to support the contract, is substantially as follows:
    Miss Lizzie Moorhead: “I am a sister of Mrs. Shirley. In June, 1895, my uncle asked Mrs. Shirley if she would accept money and be paid for services of doing his writing, and looking after him and his sister in general. He wanted to feel at all times at liberty to come and ask her anything, and have her do anything for him, and if she would accept money he would be at liberty to do it; that she should put her bill into his estate; that he wanted her to get this money in a lump; that it would be more good to her that way; he wanted her to be paid and well paid, and to put her bill in big enough, and she agreed to do it. 1 heard this altogether half a dozen times, the last time two weeks before his death; he said he wanted her to be paid and her bill to be put in big enough, the day he took sick he said he never paid her anything, he said he wanted to hold her to her contract.” Witness also testified to the claimant writing letters for the deceased, and doing some housework for him, and that her services would be worth $25.00 per month. She wrote to Mr. Maher, the lawyer at Indiana, and about the phosphate business, and to his relatives.
    Mrs. Harriet Updegraph testified that she saw Mrs. Shirley read and write letters, and do household work for Mr. Miller.
    J. T. Drake: “Miller told me about one and a half years before he died that Mrs. Shirley did all his writing for him.”
    Mrs. Harvey Holmes: “An assistant postmistress. As far as I know, Mrs. Shirley did his correspondence for him. Saw her write for him once, and knew her handwriting on the envelopes.”
    Mrs. Isabella Woods: “Am a sister of Mrs. Shirley. He told me he had made an arrangement with her to put in a bill after his death for the pay for writing she did; that he never paid her anything, and that he was a great trouble to her; that he wanted her to put it in big enough; that he wanted her well paid; she was to attend to him and do his writing, and attend to him in case of sickness; she wrote letters for him most every day; he said he had cut her out of his will, but he would put her in again; she is to put in a bill for her services. I want her paid and well paid for all she has done for me; this was in June before his death. $1.00 per day would be small compensation; she was there almost every day; she brought home curtains, household clothes, tablecloths, etc., and washed them.”
    Mrs. H. S. Gephart: “I came to Miller’s house first week in March, 1904; heard Robert tell his sister that Mrs. Shirley ought to be paid; that her and I have made an agreement that we are going to wait until after my death, and she is going to put in a bill after my death; he spoke about that frequently. I know of Mrs. Shirley writing letters for him. On the first day of July he said Martha, have you put that down? I want you to be paid and well paid for all the trouble I have given you or may hereafter give you.”
    The testimony on the part of the defense was entirely to show that the claimant did not render the services claimed for. A. G; Williams, one of the parties to whom'it was alleged letters were written by the claimant for the deceased, testified that in the ten years immediately prior to the death of Miller, he had received but three letters from him; one in his own handwriting, two in the handwriting of a lady. Charles Wilcox, secretary of the Keystone Building & Loan Association, produced all the letters written by Miller to it from 1898 to 1904. None'of them were in the handwriting of Mrs. Shirley. E. S. Ralston testified that he wrote a number of letters for Miller from August, 1896, to the fall of 1899. Harry Miller testified that he wrote letters for Robert Miller — business letters and letters to friends. Daniel Singer says he wrote letters for Miller during five or six years before his death; he came to my house to get me to write letters; wrote about the phosphate business; sometimes he paid me for writing them. A. M. Johnston testified that he wrote letters for Mr. Miller. Mrs. Eddinger testified that she wrote letters for Mr. Miller in 1899, also received letters from him; they were not in the handwriting of Mrs. Shirley; these letters were from 1899 up until nearly the time of his death, oftener than every two or three months. George M. Hill, Esq., testifies he wrote letters for Miller; that Mrs. Shirley was jointly interested with Mr. Miller in the property in regard to which letters were written to Jack & Taylor, and Mr. Maher; and that his (Miller’s) business was such that it did not require much letter writing.
    On the conclusion of the testimony, to wit: May 1, 1908, Mrs. Shirley amended her claim to run from July, 1895, to the date of the death of Robert Miller, thereby increasing the amount of her claim from $1,440 to $2,160.
    The auditor allowed her to recover at the rate of $16.00 per month, from July 7,1895 to July 7,1904, $1,728.
    A careful reading and consideration of the testimony convinces us that the claim of Mrs. Shirley is wholly without merit, and falls within the class of cases the Supreme Court, have repeatedly said that courts should hold with a tight rein. We search the record in vain for any substantial service rendered by the claimant. It is true, she wrote some letters for her uncle when he was too old to write them for himself, and that she washed some curtains and napkins, and did some trifling household duties for him, and her aged aunt. But this was only what is done every day by relatives without any hope or desire of pay, but through affection, sympathy, or an effort to secure compensation by a legacy. As to the latter, the efforts of Mrs. Shirley were not without success. She was not mentioned in the will of February 16, 1894, but by the codicil of January 31, 1899, she was given a legacy of $500, and by the codicil of February 18, .1899, to the heirs- of Mary J. Moorhead, the auditor awarded her $441.09.
    The testimony on the part of the estate shows conclusively that she wrote but few letters for the deceasecl; that the ones that were written, were short, and would take but a few moments of time, and some of them in regard to matters in which she was jointly interested with Robert Miller.
    .As to work done as “assistant housekeeper,” there is.no evidence of anything done by her that would justify compensation. Her sisters are very willing witnesses, and we search in vain their testimony to show any substantial service rendered. Mrs. Gephart was there from May 5, 1904 to July 7, 1904, the. time these old people were .in dire distress, and during a period for which Mrs. Shirley is awarded compensation, and when, if ever, she should have gone to their assistance. Mrs. Gephart says: “I did all the work, from feeding the horse to cleaning up Mr. Miller. I did everything that was to be done, taking care of him, feeding him, washed his clothes; there was no other nurse or domestic there. Mr. Ralston would come down, but would go right out again. One day I had to ask Mrs. Shirley to come up to help to change him. Mrs. Gephart is called as a witness for Mrs. Shirley, and is asked what services she rendered. The only one narrated is that she wrote some letters. Nor are we satisfied that the alleged contract will stand the legal test, so often applied to cases of this character, although there can be no doubt that if we take as verity the testimony of all the witnesses in regard to it, and disregard the circumstances surrounding it, that it is established. “But in civil cases, as well as criminal, a verdict may well be founded on circumstances alone, and these often lead to a conclusion more satisfactory than direct evidence:” 1 Greenleaf on Evidence (15th ed.), sec. 14.
    We must also bear in mind that the claimant’s case, as to a face'to face contract, rests upon the recollection of a witness as to a contract alleged to have been made fourteen years before she gave her testimony, that she was not particularly interested in it, and also allowing for the danger of mistake, the misapprehension of the witness, her iñterest and bias, the improbability of her story, the liability of Miller to misuse words or not express his meaning clearly; the rule of law that admissions should be received with great caution, and are not of that substantial character upon which should be based the rights of property.
    Claims against the estates of decedents, resting upon oral testimony of declarations and admissions, are very dangerousr and not to be favored by the courts: Pollock v. Ray, 85 Pa. 428.
    Claim's of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations presented years after the service was rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice from being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject: Wall’s Appeal, 111 Pai'460.
    The contract, as related by the witnesses, is so improbable, and so much in variance with the actions and conduct of the deceased during his entire lifetime, we cannot help but conclude ‘that they (the witnesses) either did not understand him, or else have forgotten important facts of his declarations. That a man so painfully close as Robert Miller, and so prompt in the discharge of his debts, however small, would declare that he wanted Mrs. Shirley to “put in a bill big enough,” that he wanted “her well paid,” and then to allow that bill to accumulate to an amount exceeding $2,000, is inconceivable.
    Hence, we are constrained to find that the decedent did not enter into such a contract with the claimant as she can legally enforce; and that she did not render any services except those rendered through affection, sympathy or hopes of' a legacy, and her claim is disallowed.

      Error assigned was decree sustaining exceptions to auditor’s report.

      H. L. Golden and R. A. McCullough, for appellant.

      R. L. Ralston, with him Calvin Rayburn, for appellee.
    November 2, 1908:
   Per Curiam,

The decree is'affirmed on the opinion of the court below on the exceptions to the'report of the. auditor. :


text:
    Wilson, Appellant, v. New York Central & Hudson River Railroad Company.

      Negligence — Railroads—Master and servant — Brakeman—Defective appliance — N onsuit.

    A brakeman who has worked for six weeks in shifting cars in a yard on an engine intended for line service, and not equipped as shifting engines are, with a footboard and grab iron, cannot allege the absence of these appliances as a ground for recovery against .the railroad company, his employer, for personal injuries sustained in the course of his employment.
    Argued Oct. 9,1908.'
    Appeal, No. 1, Oct. T., 1909, by plaintiff, from order of C. P. Cambria Co., June T., 1907, No. 224, refusing to take off nonsuit in case of Robert J. Wilson v. New York Central & Hudson River Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before O’Connor, P, J.
    At the trial the court entered a compulsory nonsuit.
    O’Connor, P. J., charged as follows:
    The plaintiff in this case seeks to recover from the defendant, The New York Central & Hudson River Railroad Company, for an injury.sustained by him, resulting in the loss of his right leg, some time during the month of November, 1905. The evidence develops the fact that he was in the employ of the defendant company in its railroad yards at Patton, in this county, and that while endeavoring to uncouple a car from the engine of the defendant company, under the direction of the engineer in charge of that engine, his hand and foot slipped, causing him to fall on the track, and the engine passed over a portion of his body.
    The ground upon swhich he seeks to recover from his employer is that the employer failed to provide suitable instrumentalities for the work the plaintiff was required to perform, in that the engine from which plaintiff was directed to ¡uncouple or sever the cars was built and intended for services upon the main line of railroad and not for special use in yards for shifting or switching purposes, and the defect complained of was the failure on part of employer to have a footboard and grab iron upon the engine, which if there, as alleged by. plaintiff, would, have enabled him to avoid the injury which befell him and from which he suffered.
    It is admitted that the engine was properly constructed for the service for which it was intended, but that switching engines, or yard engines, are differently constructed in that they have no pilot, or what is commonly known as a cowcatcher, and instead thereof have a footboard and grab iron, which are calculated and intended to make them more nearly safe for the employees when engaged in the coupling and uncoupling of cars from the engine.
    The testimony further shows that the plaintiff in the case was engaged in this sort of work for about six weeks on this particular engine, or on or about it, and that he was familiar with the fact that it did not have a footboard nor a grab iron, that it was an engine constructed for service on the railroad proper and was not of the kind specially - constructed or in common use in railway yards.
    At the close of plaintiff’s testimony counsel for defendant company moved the court to direct a compulsory nonsuit and assigned six reasons in support thereof, among which it is alleged that the plaintiff is not entitled to recover because the danger was obvious and that he did not complain to his superiors or those servants of the railroad company in charge of the work of the danger to which he was subjected, and that because he made no complaint, having knowledge of the defect upon which he now rests his action, he is not entitled to recover under the law.
    The rule is that the employer js bound to furnish safe instrumentalities for the work which he. desires accomplished, and that the employee takes the risk of his employment. To this rule there are a number of exceptions. Where the employer knows of a latent defect in any instrumentality employed for certain work it is his duty to inform the employee, and if the employee is of tender years, or if the work is of such nature as would render him ignorant of the particular danger it is the duty of the employer to inform him; but where the defect is patent, that is, where proper instruments are not employed or the instrument is defective and the defect bé patent, obvious, so that the employee can observe it and is familiar with its dangerous character, unless he complains to the employer and obtains a promise that the defects will be removed he is not excused from liability for injury if he attempts to recover from his employer; therefore, he is not excused from liability to perform his duty, and his duty is to quit the employment if he does not care to take further risks, and if he sees fit to continue in the employment without complaint, or without some promise to repair, he takes the risk of that employment and does not come within any exception to the general rule.
    In this case counsel for plaintiff admits and rightly admits that the plaintiff knew there was no footboard upon this engine and no grab iron, and also knew that it was not intended for yard purposes, and knew that there was more or less danger connected with the act of uncoupling or separating any cars from the engine when it was in motion. This much the plaintiff himself has admitted.
    Since the adjournment we have examined all the authorities cited and we discover that those authorities which, seemingly, support the contention that this is an exception to the rule which provides that the employee takes the risk of his employment were cases, with one exception, where the employee had ■complained and had obtained a promise from his employer or superior having charge of the matter that the defect would be remedied or removed, and in the other case the person was of tender years — fourteen years of age — and was not of ordinary capacity for one of those years, and in that case it was held that it was the duty of the employer to supply practically what the employee lacks; in other words, considering his ability to understand, or rather his lack of ability to understand the danger, the employer was held to the highest liability for having such a one in his service. So, after a full examination of these authorities, we have come to the conclusion that the plaintiff in this case must be held to have taken the risk of that employment when he knew of the danger and continued in the employment of the defendant company without complaint. We believe if we should take any other action than that of sustaining this motion at this time we would be guilty of reversible error.
    We sympathize with the plaintiff as much as his counsel or the members of the jury, and a duty of this kind is always more or less painful to the court; nevertheless, it is a duty that we must perform when we are convinced that it is the proper course to pursue. We have said this much to you for the reason that in sustaining the motion you will be relieved from further duties in this cause, and we felt it was due to you to give you the reason for not submitting the case to you.
    We sustain the motion of counsel for defendant company for a compulsory nonsuit, direct the -same to be. entered, and grant to counsel for plaintiff leave to move to strike off the same within thirty days.

      Error assigned was refusal to take off nonsuit.

      Thomas H. Greevy, with him John J. Reardon, W. A. McGuire and E. G. Brotherlin, for appellants.
    The case was for the jury: Patterson v. R. R. Co., 76 Pa. 389; McCafferty v. Philadelphia, 217 Pa. 120; Rummell v. Dilworth, Porter & Co., 111 Pa. 343; Finnerty v. Burnham, 205 Pa. 305; Lininger v. Air Brake Co., 210 Pa. 62; Canal & R. R. Co. v. Mason, 109 Pa. 296; Reese v. Clark, 198 Pa. 312; Hammer v. Pressed Steel Car Co., 204 Pa. 594.

      Thomas H. Murray, with-him M. D. Kittell, Jas. P. O’Laughlin and Hazard Alex. Murray, for appellee.
    November 2, 1908:
   Per Curiam,

.The judgment is affirmed on the charge of the learned judge sustaining motion.for nonsuit.


text:
    Collins v. South Penn Oil Company, Appellant.

      Lease — Oil and gas lease — Extension—Construction of written instrument.

    An oil and gas lease was made on September 30, 1875, to extend for a term of tv/enty years. In 1890, the owners of the fee entered into an agreement with the lessees making an extension of the lease for the term of ten years from September 30, 1895, upon the same terms and conditions as the original lease. In 1892, the owners of the land executed a deed therefor, reserving to themselves all the oil and gas from the date of the deed to September 30, 1905, together with the right to execute a new lease to the present owners of the existing lease upon the same terms and conditions contained in the lease of September 30, 1875, for the term of ten years after the expiration of said lease. Held, that the owners in making the reservation intended to retain the rights which they had in the old lease until September 30, 1895, and then for the purpose of extending the time for the period of ten years.
    One of the lessees in the original lease above mentioned parted with all interest in the leasehold, and thereafter acquired a one-fourth interest as a part owner in the fee of 213 acres in land other than that covered by the original lease. On December 10, 1895, the owner of the lands covered by the original lease entered into an agreement in writing with the owner of the one-fourth interest in the 213 acres in which he recited that he was a part owner of the 213 acres, and referred to the original lease covering the other lands and agreed that as soon as he should become the owner of full three-fourths of the 213 acres, he would extend the lease of September 30, 1875, to the owner of the one-quarter interest of the 213 acres, and the latter person agreed to surrender the full equal three-fourth parts of one-eighth of all the oil produced therefrom from and after September 30, 1905, in the manner provided in the original lease. Held, that the agreement referred only to the 213 acres and not to the lands covered by the original lease, in which the lessee had parted with all interest.
    Argued Oct. 9, 1908.
    Appeal, No. 72, Oct. T., 1908, by defendant, from judgment of C. P. Forest Co., Nov. T., 1905, No. 12, on verdict for- plaintiff in case of Truman D. Collins v. South Penn Oil Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.

      Ejectment for land in Howe township. Before Lindsey, P. J.
    The court charged in part as follows:
    On September 30, 1875, John Taggart, and others, made a lease to J. B. Agnew for the purpose of exploring for oil and gas, and perhaps other minerals, for the term of twenty years, which would make the lease expire on September 30,1895.
    Some'time in 1890, these same lessors entered into an agreement with the North Penn Oil Company, the company having acquired in the meantime the interest of J. B. Agnew. This agreement is dated in 1890. The day and month is left blank, but it is acknowledged on November 6, 1890, and recorded June 6, 1891.
    I may state at this time that this agreement was for the extension or making, of a new lease, extending this original lease made September 30,1875, to J. B. Agnew. This agreement.was to extend or make a new lease, extending the time ten years beyond the twenty years which it had to run.
    On December 3, 1892, Thomas M. Armstrong, trustee, and Andrew J. Armstrong, and others, made a conveyance of the interests which they had- in the land that was described, or certain parts of the land which was described in the original lease, to J. B. Agnew. And in that they make a reservation which I will allude to a little’later. And I may state here that all the other owners, or their heirs or assigns that are named as the grantors in the original lease to J. B. Agnew, made a conveyance similar to the one to which I have called your attention, •to Mr. Collins, the plaintiff in this case. In all but one of those ■conveyances, the exception and reservation is the same as contained in the deed to which I have just called your attention, dated in 1892.
    The exception in that deed is as follows: “Excepting and reserving unto the said parties of the first part, their heirs, executors, administrators and assigns, all the oil and gas in said premises, with the right to bore, explore, dig, produce and remove the same, from this date up to and including September 30, 1905, with the right and privilege in said parties of the first part to receive all rents, royalties, issues and profits due or to become due by reason of a certain lease heretofore executed by the then owners of the land, namely, John Taggart et al., to J. B. Agnew, dated September 30, 1875, and recorded in Forest county, in Deed Book, vol. 12, p. 57, subject to which this deed is made.”
    So far this reservation is plain and clear, and reserves to the grantors in this deed all the rights which they had when they made the lease to J. B. Agnew, and the right to receive one-eighth of the oil that might be produced under that lease.
    But it goes on to state, “And also, the right in said parties of the first part to execute a new lease or leases to the present owner of said lease or any other person or persons they may desire, upon the same terms and conditions contained in said lease of September 30, 1875, at any time, for the term of ten years after the expiration of said last-mentioned lease, in which said new lease or leases the rents, royalties, profits and benefits shall likewise accrue to and be payable to said parties of the first part hereto, their heirs, executors, administrators and assigns.”
    You will observe, Gentlemen, that in this clause the parties reserve the right to execute a new lease or leases to the present owner of said lease or any other person or persons. Now, by the terms of their agreement which they made in 1890, they agreed to extend or make a new lease for the period of ten years from September 30, 1895, the date upon which the lease above described will expire. This agreement recites: “Now therefore this agreement witnesseth, that the said parties of the first part, for and in consideration of the sum of one dollar to them in hand well and truly paid, by the North Penn Oil Company at and before the sealing and delivery hereof, the receipt of which is hereby acknowledged and of the purchase by said company of the interest of the parties of the first part in the leasehold above described, have covenanted and agreed and by these presents do covenant and agree to demise and lease to the said North Penn Oil Company, its successors and assigns,” and then goes on to describe.
    Now, Gentlemen, the parties in making this reservation, and surely the person drawing the reservation had in mind, and he was drawing it for the grantors named in the deed, and they had in mind the fact that they had agreed to make a lease extending the time from September 30, 1895, for the period of ten years, and were careful, in my opinion, to reserve the right to do what they had agreed to do in 1890, when they made the agreement with the North Penn Oil Company. This deed was made in 1892, two years later, and in the judgment of the court, when they made this reservation, this language was for the purpose of retaining to themselves the right to do what they had agreed to do in that agreement, and they probably had in mind at that time that it was incumbent upon them by the terms of that agreement to make a lease when 1895 should arrive, the time of the expiration of the lease. It was perhaps not necessary that that should be done — this agreement might be treated as an extension. But in our judgment that is what the parties meant when they made that reservation. They go on to say, “Upon the same terms and conditions contained in said lease of September 30, 1875, at any time for the term of ten years after the extension of said last mentioned lease.” Here again the allusion is to the “last mentioned lease” and the expiration of that lease — the expiration of the time which that lease has to run — ends September 30,1895, and it is to be ten years from the expiration of that lease. Therefore, we are clearly of the opinion that this reservation made by the grantors in those deeds, with the one exception, is for the purpose of retaining the rights which they had in the lease until September 30, 1895, and then for the purpose of extending the time for the period of ten years.
    This is very clear, in our judgment, and it is the duty of the court to construe written instruments. However much we would desire to throw this duty upon the jury, we cannot. It is our duty to construe written instruments, and it is our opinion that the extension of time mentioned in this reservation is for the period of ten years after September 30, 1895.
    This brings us to the consideration of the contract between T. D. Collins, the plaintiff, and J. B. Agnew, made on December 10, 1895. This contract is not so clear to our mind as the others. The meaning is more obscure. The preamble in the contract recites an ownership by the parties in 213 acres in the northeast corner of warrant No. 3,197. The next paragraph of the contract proper, alludes to this same lease which was made to J. B. Agnew, September 30, 1875, and expired on September 30, 1895, and that the extension would not expire until-September 30,1905. This part of the agreement alludes to that contract as we have said. I may as well read the paragraph and you will get it more clearly. “Now this agreement witnesseth: That the said T. D. Collins,'in consideration of the sum of one dollar, agrees that as soon as he shall become in possession as owner of the full three-fourths of the above described 213 acres of land, that he will then either extend the above said lease according to the terms and conditions thereof or make a new lease according to the terms of the said original lease to the said J. B. Agnew, from and after September 30,1905, for so long a period as oil is procured on said premises, and the conditions of said lease is complied with, reserving to himself the' same royalty and rights reserved to said first parties in the original lease, being one-eighth of all the oil produced on said lease.” He had succeeded to the ownership of the land of the lessors in that original lease, and this clause which I have just read to you would seem, taking its terms literally, to renew or to agree to renew or make a new lease. We, however, are unable to come to the conclusion that that was the meaning of the parties. One reason that leads to that conclusion is the last paragraph in which J. B. Agnew agrees that Mr. Collins shall have three-fourths of the one-eighth royalty reserved. That would give him more than J. B. Agnew had the power to give. If the intention was a renewal-of the lease or making a new lease, according to the terms of that original lease, which would cover the 213 acres in the northeast corner of 3,197, then Agnew had power to make such an agreement, but he had not the power' to make the agreement giving that amount to Mr. Collins in the other lands covered by that original lease. And taking the whole paper into consideration, the recitation of the land in the preamble, which would seem to be the land that they were contracting about, we are constrained to hold that this agreement relates only to the 213 acres in the northeast corner of warrant 3,197.
    Verdict and judgment for plaintiff. Defendant appealed.

      Error assigned was in giving' binding instructions for plaintiff.

      W. E. Rice, with him A. C. Brown, W. D. Hinckley and J. H. Alexander, for appellant.

      Peter M. Speer, with him T. E. Ritchey, M. A. Carringer and J. W. Kinnear, for appellee.
    November 2, 1908:
   Per Curiam,

The judgment is affirmed on the'charge of the learned judge below.


author: Per Curiam : Henderson, J., Per, Curiam,

text:
    Clarion County, Appellant, v. Clarion Township.

      Constitutional law — Title of act — Special legislation.

    The Acts of April 20, 1905, P. L. 237, and April 25, 1907, P. L. 104, relating to appropriation of turnpikes for public use free of tolls, and the maintenance thereof by counties, cities or boroughs, are constitutional.
    Argued Oct. 9, 1908.
    Appeal, No. 210, Oct. T., 1908, by plaintiff, from judgment - of Superior Court, April T., 1908, No. 233, affirming judgment of C. P. Clarion Co., May T., 1908, No. 11, for defendant on case stated in suit of Clarion County v. Clarion Township.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    See 36 Pa. Superior Court, 302.
   opinion op the superior court.

Per Curiam :

The general question for decision in this case is, whether or not it is the duty of Clarion county to repair and maintain a portion of a certain turnpike that was condemned, and for which condemnation damages were paid by the county. The decision of this question, it is conceded by counsel for appellant, depends upon the proper determination of the question whether the Act of April 20, 1905, P. L. 237, and the Act of April 25, 1907, P. L. 104, are constitutional. The court below decided both questions in the affirmative. The precise question was decided by the Superior Court in February last, in the case of Commonwealth ex rel. v. Van Bowman et al., upon appeal from the judgment of the court of common pleas of Cumberland county. That case was not reported at the time the present appeal was taken, or argued; consequently it had not come to the notice of counsel. Nothing has been suggested in the argument which was not fully considered in the decision referred to and we see no occasion to add anything to the opinion rendered by our Brother Henderson in that case.

The judgment is affirmed.

OPINION OF THE SUPERIOR COURT IN COMMONWEALTH EX REL. v. VAN BOWMAN ET AL., 35 PA. SUPERIOR CT. 410.

Opinion by

Henderson, J.,

February 28, 1908:

The appellants except to the decree of the court below, on the ground that the act of assembly under which the proceeding was instituted is unconstitutional. The first objection is that its title is defective and, therefore, repugnant to sec. 3 of art. Ill of the constitution. The title is, “An Act to provide for the repair and maintenance or improvement, by the proper county, city or borough, of turnpikes heretofore or hereafter appropriated or condemned, or any part thereof, for public use free of tolls.” Then follows the enactment of sec. 1, “That when any turnpike, or part thereof, has been, or may thereafter be, appropriated or condemned for public use, free of tolls, under any existing laws, and the assessment of damages therefor shall have been paid by the proper county, such turnpike, or part thereof, shall be properly repaired and maintained at the expense of the county, city or borough in which the turnpike, or part thereof lies.” There is certainly no such omission to set forth in the title the subject of the act as brings it under the constitutional prohibition. It would be a superfluous repetition to engage in the discussion of this question. Many cases hold that it is sufficient if the title fairly gives notice of the real subject so as to reasonably lead to an inquiry as to what is contained in the body of the act. Some of the later cases are: Franklin v. Hancock, 204 Pa. 110; Bridgewater Borough v. Bridge Co., 210 Pa. 105; Middletown Road, 15 Pa. Superior Ct. 167; Com. v. Meads, 29 Pa. Superior Ct. 321. Courts approach the consideration of the constitutionality of a statute with the desire and duty to sustain it, if that be practicable, and its invalidity must very clearly appear before that fact will be declared. All of the provisions of the act under consideration, except the repealing clause, are contained in sec. 1. The title not only directs attention to the subject of the act, but is a full syllabus of it, and contains about one-third of the number of words found in the statute. The act has but one subject; that is, the maintenance of certain highways by the county, city or borough where such highways exist and this is set forth more fully and clearly in the title than is usual, and much more so that in many statutes whose constitutionality in this respect has been sustained by the Supreme Court.

It is further objected that the act is in violation of sec. 6 of art. Ill of the constitution, which prohibits the revival, amendment or extension of any law by reference to its title alone. The argument is that the act is merely a part of a system devised for opening toll roads for the use of the public and is an amendment to sec. 11 of the Act of June 2, 1887, P. L. 306. The answer to this is that the statute is in form and legislative intention a new law covering the whole subject and changing the legislation of the act of 1887. It is complete in itself. Its meaning is apparent on its face, and' it does not require the re-enforcement of any other statute to give it effect. Such an act does not violate the constitution though it may operate to alter or repeal a prior act: Searight’s Estate, 163 Pa. 210; Greenfield Ave., 191 Pa. 290; Emsworth Borough, 5 Pa. Superior Ct. 29. A casual glance at the statutes will disclose the evolution of the. law on many subjects brought about by independent enactments incorporating new provisions which in effect amended previous legislation on the same subjects, but it never was supposed that such enactments could only be made constitutional by connecting them in terms with prior legislation. Section 2 repeals all inconsistent acts, and there is no foundation for the position that there is an amendment within the constitutional provision referred to.

It is further contended that the act violates sec. 1 of art. IX of the constitution which demands uniformity of taxation. This objection is met by the reply that the subject of the statute is not one of taxation at all. There is no constitutional obligation on any municipal district to maintain public highways. The duty is imposed by statute, and it is a matter of legislative discretion whether a highway shall be maintained by the county or by a local municipal district. It is not a matter of legal concern to. the taxpayers of a borough or city that the county assumes the cost of the maintenance of a public road in a township. A county bridge and the approaches thereto are a part of a public highway often wholly in one township and are erected and maintained at the charge of .the county, but no one contends that the township may not be relieved from the cost of such part of a public highway by proper proceedings in the court of quarter sessions. In such a case all of the taxpayers of the county are required to contribute to the erection and maintenance of the bridge which, before it was made a county charge, was a burden upon the local district. Highways are for the use of the public, generally, and if by reason of difficulty of construction or cost of maintenance it is deemed advisable that one of them be constructed or maintained out. of the county fund, taxpayers of another township or borough have no standing to object on the ground of inequality of taxation. The cost of the maintenance of roads is necessarily greater in some districts than in others, owing to the larger mileage, the quality of the soil and the topographical conditions. The section of the constitution under consideration does not forbid the legislature to authorize the construction or maintenance of a part or the whole of a public highway at the expense of the county. We think the learned counsel are in error in supposing that any question of equality of taxation is involved in the cáse.

Error assigned was the judgment of the Superior Court.

J. T. Reinsel, for appellant.

W. D. Burns, for appellee, was not heard.'

The contention that the act is local or special legislation is not maintainable. .The law is general in its terms and is applicable throughout the commonwealth. Every person is affected by it who is brought within the relations and circumstances provided for. The mere fact that local results may be produced through its operation does not necessarily render it unconstitutional. A law may by classification or otherwise produce diversity of result and yet be general where the classification is based on a real distinction. It is for the legislature to determine the expediency of the law: Evans v. Phillipi, 117 Pa. 226; Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44; Stegmaier v. Jones, 203 Pa. 47; Com. v. Brown, 210 Pa. 29; Middletown Road, 15 Pa. Superior Ct. 167. Every county similarly situated as to condemned or abandoned turnpikes is within the operation of the statute. None are excluded because of any local condition or circumstance. It is also argued that there is an inconsistent election allowed to county commissioners with reference to the manner of maintaining the road because of the Act of June 26, 1895, P. L. 336. These acts are not incompatible and relate to different subjects. The latter act provides for the permanent improvement of certain public highways and makes such improved highways county roads. The act of 1905 relates solely to the repair and maintenance or improvement by the proper county, city or borough of appropriated or condemned turnpike roads. If any question of election arose the opinions in Middletown Road, 15 Pa. Superior Ct. 167, and Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, fully answer the argument. None of the objections to the constitutionality of the law are sustained.

The decree is affirmed.

November 2, 1908:

Per, Curiam,

The judgment is affirmed on the opinion of the Superior Court for the reasons stated in Com. v. Van Bowman, 35 Pa. Superior Ct. 410.


text:
    Eastman, Appellant, v. Trotter Water Company.

      Equity — Injunction—Preliminary injunction — Water company — Eminent domain — Public service corporation.

    Where a bill in equity is filed against a water company to restrain it from exercising the right of eminent domain on the ground that the company is merely a corporation for private uses, a preliminary injunction is properly refused where it is established to the satisfaction of the court that the defendant is a public service corporation.
    Argued Oct. 9, 1908.
    Appeal, No. 264, Jan. T., 1908, by plaintiff, from decree of C. P. Fayette Co., No. 548, in equity, refusing preliminary injunction in case of T. N. Eastman v. Trotter Water Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction to restrain the taking of land. Before Umbel, P. J.
    The court entered the following decree:
    And now, July 28, 1908,' the within bill being presented in open court, together with the injunction affidavits and bond, after due consideration and under the authority of Moore et al. v. Trotter Water Company, No. 475, in equity of this court, where the constitutional questions here raised were passed upon and it was established to the satisfaction of the court that the defendant is a public service corporation and not' merely a corporation for private uses, it is ordered, adjudged and decreed that the prayer of the bill be denied and a preliminary injunction be and the same is hereby accordingly refused.

      Error assigned was the decree of the court.

      A. E. Jones, for appellant.

      W. F. McCook, with him E. H. Reppert, for appellee.
    November 2, 1908:
   Per Curiam,

This is plainly a case for final hearing.

Appeal dismissed.


text:
    Davis v. Westmoreland County Railway Company, Appellant.

      Negligence — Street railways — Motorman—Duty to keep a general lookout ■ — Infant—Duty of parents — Case for jury.

    It is negligence for a traveler along the streets of a city not to keep a general lookout where he is going. This rule applies not only to foot passengers and drivers of vehicles, but also to motormen in charge of street cars.
    Where a motorman sees a child ten years old running parallel to the tracks, and so close that a step or two might bring her upon them at any instant, the danger to the child is not so imminent as to justify the motorman as a matter of law in closing his eyes to other obstructions or risks in his path. If, in such situation, he diverts his attention to such an extent as to run over another child, the question of his negligence is one for the jury.
    Where a mother, the wife of a miner, leaves a child two years old in charge of an older daughter, ten years old, and goes on an errand, while the husband is at his work, and the younger child is injured by an electric street car, the question of the parents’ negligence is for the jury.
    Argued Oct. 9, 1908.
    Appeals, Nos. 178 and 179, Oct. T., 1908, by defendants, from judgment of C. P. Westmoreland Co., Nov. T., 1907, No. 544, on verdict for plaintiffs in case of Loretta Davis, minor, by her next friend and father, John E. Davis, and John E. Davis, in his own right, v. Westmoreland County Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries to a child two years and three months old. Before Doty, P. J.
    At the trial it appeared that on August 12, 1907, the mother of Loretta Davis left Loretta in charge of another daughter, ten years old, and went on an errand. The father of the child, John E. Davis, was at the time at work in the mines where he was employed. During the absence of the parents Loretta was run over by an electric car and seriously injured. There was evidence that immediately before the accident, the motorman’s attention had been diverted by a little girl running parallel with the tracks, and in somewhat dangerous vicinity to them.
    Verdict and judgment for Loretta Davis for $2,000 and for John E. Davis for $800. Defendants appealed.

      Error assigned was in refusing binding instructions for defendants.

      Wm. A. Stone, with him Jas. S. Beacom, David L. Newill, Stephen Stone and Albert P. Meyer, for appellants.

      Chas. C. Crowell, with him Curtis H. Gregg and Sidney J. Potts, for appellees.
    November 2, 1908:
   Per Curiam,

When the larger child ran out of the house and along the tracks the motorman’s attention was naturally and properly directed to her. Though she was not on the tracks she was running parallel to them and so close that a step or two might bring her upon them at any instant. But the danger to her was not so imminent as to justify him, as a matter of law, in closing his eyes to other obstructions or risks in his path. He was bound to keep a general lookout in the performance of his duties.

It is negligence in a traveler along the streets of a city not to keep a general lookout where he is going. This was the rule held in regard to a foot passenger in Robb v. Connellsville Boro., 137 Pa. 42; Harris v. Commerical Ice Co., 153 Pa. 278; and the same rule was applied to the driver of a vehicle in Graham v. Philadelphia, 19 Pa. Superior Ct. 292.

This being the law in regard to negligence in an ordinary-traveler, a fortiori applies to the motorman in charge of a car. Whether in this case he did so, as far as the circumstances permitted, or whether notwithstanding the primary call upon his attention he should have seen the smaller child in time to avoid it, was a question of fact which only a jury could answer.

On the second question, the negligence of the parents in allowing so young a child to be upon the street, under the circumstances is equally clearly a question for the jury: Woeckner v. Erie Electric Motor Co., 182 Pa. 182; Jones v. United Traction Co., 201 Pa. 346.

Judgment affirmed.


text:
    Pulaski Township Poor District v. Lawrence County, Appellant.

      Constitutional law — Special and local legislation — Poor law — Act of March 6, 1903, P. L. 18.
    Those parts of the Act of March 6, 1903, P. L. 18, which provide for the relief of the needy, sick and indigent persons who have no known legal settlement within the commonwealth, at the expense of the county where relief is required, do not contravene sec, 7, art. Ill of the constitution, relating to special and local legislation regulating the affairs of municipalities. The fact that the operation of the Act of June 4, 1879, P. L. 78, led to a diversity of method of accomplishing the same result in this class of cases, is not a valid reason for declaring the act of 1903 a local and special law; nor is it special because it divides paupers into two classes, namely, those without a settlement in this state, or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class.
    There is no constitutional requirement of uniformity in legislation, except in taxation. The mandate of the constitution is negative, that laws on certain subjects shall not be local or special. That means that they must be general, and the uniformity which is discussed in the decisions is not a necessary requirement, but only a test of the generality which the constitution commands.
    Argued Oct. 13, 1908.
    Appeal, No. 18, Oct. T., 1908, by defendant, from judgment of the Superior Court, April T., 1907, No. 63, affirming order of C. P. Lawrence Co., March T., 1906, No. 97, overruling demurrer to claim in case of Pulaski Township Poor District v. Lawrence County.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart,'JJ.
    Affirmed.
    Appeal from Superior Court.
    See 34 Pa. Superior Ct. 602.
    Rice, P. J., filed the following opinion :
    The question involved in this case is the constitutionality of the Act of March 6, 1903, P. L. 18, or to be more exact, the constitutionality of those parts of the act which provide for the relief of needy, sick and indigent persons, who have no known legal settlement within the commonwealth, at the expense of the county where relief is required. It may be surmised that the draftsman of the act had particularly in mind counties not operating under the Act of June 4, 1879, P. L. 78, the constitutionality of which was upheld in Rose v. Beaver County, 20 Pa. Superior Ct. 110; s. c., 204 Pa. 372. But the words of the act are broad enough, and must be construed to cover all counties in which a poor or almshouse for the support, care and shelter of the needy and indigent is not maintained, either by general or local law, by and at county expense. It is claimed that the effect of the qualifying words is to limit and restrict the provisions of the act to a particular class of counties, and, therefore, they are in contravention of sec. 7, art. 111 of the constitution, which declares that the legislature “Shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” But, as in the counties to which it is claimed the act does not apply, the duty of furnishing relief to the class of poor persons described in the act who have no known legal settlement in the commonwealth was already devolved by law upon the county, it is apparent that the immediate effect of the act was to promote uniformity, by putting all other counties upon the same basis so far as that general duty is concerned.
    But until every county of the state has taken advantage of the provisions of the act of 1879, there must of necessity be diversity of method of caring for the poor between the counties that have taken advantage of its provisions and those in which the poor district system is retained. For example, in the former, orders of relief and removal are granted to and upon the county commissioners, and in the latter, to and upon the directors or overseers of the poor of the proper district. In the present case an order of relief issued to the overseers of the poor of the township poor district, and, it is admitted by the demurrer, that the person from whom it issued had no known legal settlement' in the state. Under the act of 1903, it became the duty of the county commissioners, from and after notice from the overseers of the poor, either to take charge of him and furnish the needed relief, or, in the event of their election not to do so, to reimburse the poor district the amount necessarily expended. The result is to compel the county to bear the expense of relief. The same result would have been reached, but by a different method, if the county, having availed itself of the privilege of the act of 1879, were operating under its provisions. This diversity of method of accomplishing the same result in this particular class of cases, necessitated by the fact that under the operation of a valid and constitutional statute there are in some counties poor districts and overseers of the poor and in others the whole county is a single poor district, and its affairs are administered by the county commissioners, is not a valid reason for declaring the act of 1903 a local or special law within the prohibition of the constitution. In support of this conclusion we refer to Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, with the doctrine of which, we think, it is in full accord.
    But, in determining whether an act is local or special within the prohibition of this section not only present results, but possibilities must be considered: Frost v. Cherry, 122 Pa. 417. Hence, if the act must be construed as permanently excluding from its operation all counties which at the time of its enactment were operating under the act of 1879, or similar laws, the legal possibility of local and special results being accomplished by it upon repeal of those laws is apparent. We think it clear, however,:that, the words of the act do not require such construction, if any. attention whatever is to be given to the sound principle, that where the. legislative intent is not to evade the restrictions the courts are not required to be astute in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution: Commonwealth v. Gilligan, 195 Pa. 504. As the learned compiler and annotator of the last edition of Purdon’s Digest well says, and as the authorities abundantly show, there is a marked distinction between inclusive and exclusive provisions under this section: 1 Stewart’s Purdon’s Digest, 153. Assuming the legal possibility of a repeal of the act of 1879, and of all local or special laws under which particular counties are now charged with the duty of supporting, earing for and sheltering poor persons needing relief, the result would be to re-establish the poor districts in such counties. When that change occurs, if it ever shall, and the duty is again cast primarily on the poor districts, there is no clause or provision of this act which twill exclude any of those counties from its operation.- On the contrary, it will at once become operative throughout the state, without any change or amendment thereof. As already stated, the immediate effect of the act is to promote uniformity, not to produce local or special results that are forbidden by the constitution, and it does not appear that it can by any possibility have the latter effect in the future. This being so, the same principles that sustained the legislation construed in Evans v. Phillipi, 117 Pa. 226; Reading v. Savage, 124 Pa. 328, and kindred cases, is applicable here.
    It is argued, further, that the act is special, and, therefore, invalid, because it divided paupers into two classes, namely, those without a settlement in this state or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class. But there are obvious reasons which might properly move the legislature to conclude that it would be just and expedient to shift the burden from the poor district into which a poor person without legal settlement there or in any other poor district of the state, might chance to come, to the county, which would not hold good in the case of a poor person who has a legal settlement in some poor district of the state to which he can be removed. There is no provision of the constitution which so ties the hands of the legislature that it cannot do the former, unless it also relieves all poor districts of the burden of caring for the poor who have legal settlements therein and casts it on the county. This, it seems to us, does not require discussion.
    The judgment is affirmed.

      Error assigned was the judgment of the Superior Court.

      A. W. Gardner, for appellant.

      Aaron L. Hazen, John P. Ijockhart and Gregory & Dickey, for appellee, were not heard.
    November 2, 1908:
   Per Curiam,

There is no constitutional requirement of uniformity in-legislation, except in taxation. “The mandate of the constitution is negative, that laws on certain subjects shall not be local or special. That means that they must be general, and the uniformity which is discussed in the decisions is not a necessary requirement but only a test of the generality which the constitution commands:” Com. v. Moir, 199 Pa. 534 (552).

"With this addition which the course of argument seems to make desirable the judgment is affirmed on the opinion of the learned president of the Superior Court.


text:
    Coller, Appellant, v. Knox.

      Negligence — Runaway team — Nonsuit.
    The mere fact of a runaway does not by itself imply negligence, nor would even leaving a team standing in a private lane do so.
    In an action to recover damages for personal injuries, a nonsuit is properly entered where the plaintiff testifies in effect that when he passed a lane leading from defendant’s house to a public road, he saw the team of defendant standing-in the lane, and a man standing at the head of the horses; that he drove slowly past the end of the lane, and when he had gotten 180 or 200 feet down the road, he heard a warning to “look out,” and immediately afterwards was struck by the runaway team.
    Argued Oct. 13, 1908.
    Appeal, No. 52, Oct. T., 1908, by plaintiff, from order of C. P. Lawrence Co., Sept. T., 1905, No. 12, refusing to take off nonsuit in case of William H. Coller v. Alexander G. Knox.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before William E. Porter, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      C. H. Akens, of Akens, Wilkison, Lockhart & Chambers, for appellant.

      J. Norman Martin and A. Martin Graham, for appellee,
    were not heard.
    November 2,1908:
   Per Curiam,

There was no evidence of negligence on the part of defendant. The only testimony as to the facts of the occurrence was from the plaintiff himself, and was to the effect that when he passed the lane, leading from defendant’s house, to the public road, he saw the team of defendant standing in the lane, and a man standing at the head of the horses. He drove slowly past the end of the lane, and when he had gotten 180 or 200 feet down the road he heard a warning to “look out,” and immediately after was struck by the runaway team.

In all this there is no evidence of negligence. The mere fact of a runaway does not by itself imply negligence, nor would even leaving a team standing in a private lane do so. But in this case the affirmative evidence is that when last seen only a few moments before the collision, there was a man standing at the horses’ heads.

The cases cited by the appellant of horses left unhitched and unattended on a city street, stand upon an entirely different footing.

Judgment affirmed.


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    Wilson, Appellant, v. Brown.

      Negligence — Master and servant — Defective appliance — Fellow servant.

    In an action to recover damages for personal injuries sustained by plaintiff while in defendant’s employment, it appeared that the plaintiff was struck by a falling plank while standing near the base of a concrete pier. The plank had been a part of a form used in building up the concrete, and was pried loose by a fellow servant of the plaintiff after the concrete had hardened. The plaintiff alleged that ten-penny nails in the construction, instead of spikes, had caused the accident. There was nothing in the evidence to indicate that the accident would not have happened if spikes had been used instead of nails. Held, that a compulsory nonsuit was properly entered.
    Argued Oct. 15, 1908.
    Appeal, No. 161, Oct. T., 1908, by plaintiff, from order of C. P. Butler Co., Sept. T., 1907, No. 227, refusing to take off nonsuit in case of William B. Wilson, Jr., v. Frederick S. Brown.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Galbreath, P. J., filing the following opinion:
    This suit was brought by the plaintiff against the defendant for recovery of damages alleged to have been sustained by him by an injury received while in defendant’s employ in the construction of concrete piers or abutments on the line of the Pitts-burg & Western Railway Company. In the construction of said piers, wooden forms were used for the purpose of giving shape to and retaining the concrete in place until it had settled and hardened. The work of building up the piers was by sections and as each section hardened, the forms were removed from the concrete and placed further up for the purpose of constructing in the same manner another section on top of that already constructed. These wooden forms were held together by ten-penny nails “toed in” as described by the witnesses. When the construction of the pier had reached considerable height, on February 25, 1907, the workmen, including the plaintiff in this case, were engaged in removing the wooden forms, the plaintiff being engaged down upon the ground near the base of the pier. Several of the planks had already been pried loose by the workmen engaged on the pier and had fallen to the ground. The plaintiff was standing at the foot of the pier, not directly under the place where the planks were being pried off, but around the corner of the pier, and so seemed to be removed from any danger consequent upon the falling plank. The testimony in the case indicates that the freezing weather had caused the planks to adhere to the concrete so that some considerable force had to be expended in prying them loose. During the progress of this work, when one of the planks had been loosened at one end with a bar, as testified to by the witnesses, said plank swung out and around the corner of the pier, falling at the side, not directly underneath, as had the other planks which had been removed, but at the point where the plaintiff was standing, striking him and doing the injury which is complained of. On part of plaintiff it is contended that this was due to defective construction on part of the defendant of the forms used in building up the concrete; that the ten-penny nails used for that purpose were not sufficient and that the failure to use heavier nails was the cause of the swinging out of the plank, which caused the plaintiff’s injury. There is nothing in the evidence in this case, we think, from which it can be reasonably inferred that the swinging out of the plank in the manner testified to by the witnesses was in any degree due to the manner of construction of the wooden forms, or that the same thing would have been less likely to have occurred if larger nails or spikes had been used. It cannot be said that the adhering of the plank, which caused the injury, at one end after the other had been pried loose was in any way due to the fact that the nails used were not of larger size. The testimony in the case indicates that the accident was one of these occurrences which, while unfortunate, could not reasonably have been foreseen and guarded against, or that if there were negligence on the part of any one or in any respect, it was not the negligence of the defendant in the construction of the wooden forms, but rather on the part of the plaintiff’s fellow workmen, who were taking the forms apart. We are not convinced, therefore, that this is a case which should have been submitted to the jury, there being no evidence from which any reasonable inference of the defendant’s negligence could be drawn. For this reason, the motion of plaintiff’s counsel to take off the compulsory nonsuit is refused.

      Error assigned was refusal to take off nonsuit.

      John M. Greer, John B. Greer and Thos. H. Greer, for appellant.

      Wishart & Dickey and B. P. Scott, for appellee, were not heard.
    November 2, 1908:
   Per Curiam,

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


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    Guthrie v. Baltimore & Ohio Railroad Company, Appellant.

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

    In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing it was conceded that the crossing was an exceptionally dangerous one, and at the time of the accident was incumbered with cars, etc., which obstructed the view. The plaintiff driving towards the crossing stopped at a point about eighty feet from the tracks, looked through a driveway or opening to the east where a view could be had for a distance of about 500 feet, and seeing or hearing nothing drove on to a further point variously stated from fifty to twenty-five feet, and again stopped, looked and listened. A freight train was pulling out from the siding at this point and when it had cleared the crossing the driver looked again, having a clear view to the east for about 800 feet, started to cross and was struck by an express train coming from the east on the main track. At the time of starting several persons including a bralceman on the rear of ,the freight train pulling out called and motioned to the driver who unfortunately mistook the signals to mean “come on” instead of “keep back.” Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 16, 1908.
    Appeals, Nos. 164 and 165, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 9, on verdict for plaintiffs in case of M. G. Guthrie and Elizabeth Guthrie, his wife, v. The Baltimore & Ohio Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McIlvaine, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for M. G. Guthrie for $3,000 and for Elizabeth Guthrie, $7,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Norman E. Clark, with him Winfield McIlvaine, for appellant.
    T. F. Birch, for appellees, was not heard.
    November 2,1908 :
   Per Curiam,

The crossing at which the accident occurred is conceded to be exceptionally dangerous, and at the time was incumbered with cars, etc., which obstructed the view. The plaintiff driving towards the crossing stopped at a point about eighty feet from the tracks, looked through a driveway or opening to the east where a view could be had for a distance of about 500 feet, and seeing or hearing nothing drove on to a further point variously stated from fifty to twenty-five feet, and again stopped, looked. and listened. A freight train was pulling out from the siding at this point and when it had cleared the crossing the driver looked again, having a clear view to the east for about 800 feet, started to cross and was struck by an express train coming from the east on the main track. At the time of starting several persons including a brakeman on the rear of the freight train pulling out called and motioned to the driver who unfortunately mistook the signals to mean “come on” instead of “keep back.”

This is a brief outline of the chief elements in a rather complicated situation, but it is sufficient to show that the plaintiff’s driver was endeavoring to observe the rule and not dashing ahead in reckless disregard of it. Whether he used the diligence and caution which the situation required was therefore a question for the jury: Ely v. Pittsburg, etc., Ry. Co., 158 Pa. 233; Beach v. Penna. R. R. Co., 212 Pa. 567; Howard v. B. & O. R. R. Co., 219 Pa. 358.

How far the driver was excusable for regarding what he took to be invitation or advice to drive on, was also a matter for the jury. It depended altogether on the circumstances and is not susceptible of subjection to a fixed rule. It is urged by appellant that the brakeman was not in the position of a watchman for the crossing and therefore his action even if it had been, as the driver thought it was, an invitation to drive on, could not bind the railroad. But that is not its application. It was not evidence of defendant’s negligence, but evidence tending to rebut contributory negligence on the part of plaintiff. The absence of official character in the person giving the advice did not go to the admissibility but to the weight of the evidence. To drive on in the face of an understood warning to keep back, no matter from whom received, would certainly be some evidence of negligence, and for like reason an invitation or advice to come on would be evidence to negative negligence, not so strong as in the other case, for in positions of risk or danger every, one is bound to use his own senses in acting with care, but nevertheless evidence of such weight as the jury should accord it under the circumstances.

Judgment affirmed.


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    Munns, Appellant, v. Pittsburg Railways Company.

      Negligence — Street railways — Motormen—Death—Contributory negligence — Nonsuit.
    In an action against a street railway company to recover damages for the death of a motorman, a nonsuit is properly entered where the evidence shows that the deceased was killed by his car leaving the tracks on a bridge; that he had been for some time in the employ of the company, and was familiar with the bridge; that he was running his car at the time at an undue rate of speed; and that he had not obeyed a notice posted at the approach of the bridge, requiring him to stop his car.
    Argued Oct. 19, 1908.
    Appeal, No. 194, Oct. T., 1907, by plaintiff, from order of C. P. No. 3, Allegheny Co., Nov. T., 1904, No. 488, refusing to take off nonsuit in case of Mamie Munns, widow of John Munns, deceased, in her own right and for Thomas Y. Munns and Hilda E. Munns, minor children of John Munns, v. Pittsburg Railways Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for death of a motorman.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off, Kennedy, P. J., filing the following opinion:
    This action is brought for the recovery of damages to the plaintiffs for the death of the decedent, which, they allege, was caused by the negligence of the defendant company.
    The deceased was at the time in the employ of the defendant company as motorman, and was operating the car to which the accident occurred. The statement and claim of the plaintiffs is that the car left the track on a bridge which was built by and belonged to the city of Pittsburg, and over which the defendant company had no control. The testimony as to the condition of the track on the approach to the bridge does not, therefore, seem to have anything to do with this accident, and the testimony with reference thereto was properly excluded, the allegation in plaintiff’s statement and the testimony with regard thereto showing that the accident occurred by the car leaving the track on the bridge.
    The deceased had been in the employ of the defendant company for some time previous to the accident, and had operated cars on the line where the accident occurred. The testimony does not show any negligence on the part of the defendant company which proximately occasioned the accident. It seems from the testimony on behalf of the plaintiff, that the motorman was operating the car at the time at an undue rate of speed, and that he disregarded the notice to stop at the approach to the bridge, and that the accident was caused by his own contributory negligence. The length of time that he was in the employ of the company and crossing over this particular bridge tended to show that he assumed the risk of the employment. This being the case, and there being no negligence on the part of the defendant company shown creating any liability to these plaintiffs, and the testimony showing also that the decedent under the circumstances was guilty of negligence, we do not think that this nonsuit should be taken off.
    The rule to show cause is discharged.

      Error assigned was refusal to take off nonsuit.

      Body P. Marshall, with him Thos. M. Marshall, for appellant.

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellee.
    November 2, 1908:
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing to take off the nonsuit.


text:
    Hartje v. Hartje.

      Appeals — Divorce—Amount in controversy — Superior Court.

    From a decree allowing counsel fees and alimony in divorce the appeal lies to the Superior and not to the Supreme Court, and this is the case although the amount allowed is in excess of 11,500..
    Appeal from order of C. P. No. 2, Allegheny Co., Jan. T., 1906, No. 15£.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and' Stewart, JJ.
    Remitted to Superior Court.
    November 2, 1908:
   Per Curiam,

This is an appeal from decree allowing counsel fees and alimony in divorce. The decree being for the payment of more than $1,500 would appear prima facie to come within the principle if not the exact terms of the decision in Prentice v. Hancock, 204 Pa. 128, and the appeal, therefore, would lie in this court.

But the same Act, May 5, 1899, P. L. 248, on which Prentice v. Hancock was based, in sec. 7 gives the Superior Court jurisdiction over “appeals in proceedings in divorce.” The original proceeding in the court below was for divorce, and an appeal at any previous stage of it would certainly have lain to the Superior Court. The fact that this is a money decree does not prevent it from being still a part of the same proceeding.

There is no real repugnance between the different sections of the act. Section 1 (c), for purpose of jurisdiction in appeals, classifies all money judgments according to their amount without reference to the nature of the action, while sec. 7 deals with proceedings in divorce as a special class without reference to a possible money judgment which may be incident to the action. This being made a special class the legislative intent is clear to take it out of the general classification in sec. 1.

The appeal is remitted to the Superior Court.


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    Enterprise Transit Company, Appellant, v. Collins.

      Land law — Surveys—Absence of monuments — Courses and distances— Location.

    Where a survey has its north corner and west corner marked upon the ground, and the northwesterly line between them is fixed, the southeasterly line will be located by running the official courses and distances from the fixed monuments, if there are no monuments on the line made or adopted to stop it short of its official distance, notwithstanding the fact that the protraction of other lines of the same block of which the warrant is a member would stop it short of said distance.
    A surveyed warrant, although a member of a block, that has upon the ground its northern and western corners is well located by running the official courses and distances from said comers without reference to the marks on other members of the block not made or adopted specially for it.
    Argued Oct. 8,1908.
    Appeal, No. 73, Oct. T., 1908, by plaintiff, from judgment of C. P. Forest Co., Sept. T., 1907, No. 1, on verdict for defendants in case of Enterprise Transit Co. v. T. D. Collins et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trepass to recover damages for an alleged wrongful cutting of timber on eighty-one acres of land in Kingsley township.
    The case turned upon the location of the southeastern line of warrant No. 5,270, the plaintiffs claiming the land in dispute under warrant No. 5,132 which was three days junior to No. 5,270. It was undisputed that the northern and western corners of No. 5,270 were well-marked trees and that the northwestern line was fixed by these monuments.
    The return of survey called for a line from the northern corner south forty-five degrees east, 320 rods to a spruce. At the time of the trial the spruce had disappeared, and no living person could tell the place of its location.
    Warrant No. 5,270 was alleged by the plaintiffs to be one of a body of 100 warrants issued to George Mead and was returned as having four marked corners on the ground.

      The plaintiffs claimed to fix the location of the missing spruce by protracting other lines of adjacent warrants of the same block, and in so doing fixed the width of said warrant at 283.9 instead of 320 rods, the strip of 36.1 rods wide being the land in controversy.
    The defendants contended that the place of the spruce and the southeastern line of said warrant should be fixed by running the official courses and distances from the monuments found on the north and west, as long as no other marks were found to stop it short. The court, Lindsey, P. J., charged as follows:
    This is an action of trespass brought by The Enterprise Transit Company, plaintiff, against T. D. Collins and others, defendant, to recover the value of timber alleged to have been cut and taken away from the plaintiff’s lands which are described in the statement of claim.
    The answers to the points presented by counsel for the parties will determine whether or not the plaintiff has a right to recover, and we will now answer those points.
    Second; The principal question of location for the jury to determine in this case is the dividing line upon the ground between the plaintiff’s warrant No. 5,132 and the defendants’ warrant No. 5,270, and that is to be determined by ascertaining the true location upon the ground of the southeastern line of warrant No. 5,270.
    Affirmed.
    Third. The returns of survey of the several George Mead warrants Nos. 5,266, 5,267, 5,268, 5,269, and 5,270 each calls for the warrant lying northeast of it respectively; that is to say, the return of survey of 5,266 calls for 5,265 as its adjoiner upon the northeast; 5,267 calls for 5,266, 5,268 calls for 5,267, 5,269 calls for 5,268, and 5,270 calls for 5,269 as its adjoiner upon its northeast boundary, so that each of said warrants respectively is the leading warrant for the tract lying immediately as its ad-joiner to the southwest. And in locating the southeastern line of said tier of Mead warrants, we must follow the footsteps of the surveyor in ascertaining the said line, and the monuments he marked or called for therein, as the landmarks of the several tracts mentioned of which it forms the southeastern boundary.

      Refused.
    Fourth. Warrant No. 5,267 is to be located from its undisputed monuments given in evidence in this case, to-wit: The spruce for its northern corner, the spruce for its eastern corner, the white oak for its southern corner, and the white oak for its western corner.
    Refused.
    Fifth. Warrant No. 5,268 is to be located from its undispúted eastern, northern and western monuments given in evidence in this case, to-wit: The white oak for its eastern corner, the white oak for its northern corner, and the service berry for its western corner, and the location of its southern corner is to be determined by the intersection of the undisputed lines upon the ground leading southwest from the white oak eastern corner, and southeast from the service berry western corner their official courses, in Salmon Creek at the reputed location of the black oak called for in the return of survey of said warrant No. 5,268.
    Refused.
    Sixth. Warrant No. 5,269, in the absence of other evidence of the place of the location of the spruce called for in its return of survey for its southern corner, is to be located by ascertaining upon the ground its northwest line between the location of the spruce western corner and its service berry northern corner, and the location upon the ground of its eastern line between the location upon the ground of said service berry northern corner and the place fixed, by the jury as the location of the black oak southern corner of No. 5,268, and the southern corner of No. 5,269 will be ascertained by protracting the southeastern line of No. 5,268 southwest parallel with the northwest line of 5.269, its official course, until it intersects a line running from the spruce western corner southeast parallel with its northeastern line, its official course, and the point of intersection of said lines will be the southern corner of said warrant No. 5.269.
    Refused.
    Seventh. Warrant No. 5,270 will be located in the same manner by ascertaining upon the ground the northwest line between its black oak western corner now standing, and the location of its spruce northern corner, and the location upon the ground of its northeast line between the location of its spruce north comer and the point ascertained for the location of the southern corner of 5,269, and the southern corner of said warrant No. 5,270 will be ascertained by protracting the southeastern line of No. 5,269 southwest parallel with the northwest line of 5,270, its official course, until it intersects a line running from said black oak western corner southeast parallel with its northeastern line, its official course, and the point of intersection of said lines will be the southern corner of the defendants’ warrant .No. 5,270.
    We are unable to take the view in relation to this case, that the counsel for the plaintiff has taken in these points last read, being the third, fourth, fifth, sixth, and seventh, and we therefore answer them in the negative.
    Defendants’ points:
    1. Under the law and the evidence the plaintiff is not entitled to recover and the verdict must be for the defendants. Affirmed.
    2. Inasmuch as the north corner and the west corner of the defendants’ survey is undisputed, and there are no monuments on the southeasterly side made or adopted for that line ta stop it short of its official distance, that southeasterly line is' to be located by the official courses and distances and by such location the plaintiff cannot recover and the verdict must be for the defendants. Affirmed.
    3. The location of 5,270 cannot be limited or controlled by the black oak of 5,268 and 5,269 at Salmon creek nearly two miles distant and the verdict must be for the defendants. Affirmed.
    The Court: Under the answers to the points, gentlemen, there can be no recovery in the case. We thus take the responsibility of deciding the case and there is nothing for you to do but to render your verdict for the defendants.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned, amongst others, was in giving binding instructions for defendant.

      D. I. Ball, with him A. C. Brown, for appellant.

      Thomas H.. Murray, with him Ritchie & Carringer and A. L. Cole, for appellees.
    November 2, 1908:
   Per Curiam,

The judgment is affirmed on the charge and answers to the points by the learned judge below.