author: Me. Justice Moschzisker,

text:
    Sears, Appellant, v. Scranton Trust Company.

      Equity — Jurisdiction—Parties—Executors and administrators — Conversion — Cloud on title — Cancellation of deed — Remedy at law — Will.
    1. A direction to an executor to sell the decedent’s property and pay the proceeds to the widow works a conversion, and gives the executor full power and authority over the real estate, with the right to maintain any action at law, or in equity, which might be necessary to carry out the direction and to protect the interests with which it is charged. This includes the power to maintain a bill to cancel a deed in order to remove a cloud upon title; and what the executor may do an administrator c. t. a. may also do.
    2. Whatever may be the prayer of a bill, if the kernel of the controversy is the legal title to land, then equity cannot be invoked; but where the question of the legal title is incidental and subordinate to other elements which call for the exercise of equitable remedies, equity will take and retain jurisdiction.
    3. While objections to jurisdiction can, generally, be made at any stage of the proceeding, objections to the jurisdiction of equity on the ground that the proceedings should have been instituted on the law side of the court, will not be entertained, unless made within a reasonable time after bill filed.

      Equity — Cross bill — Practice, C. P. — Parties.
    4. A cross bill may and usually does introduce new facts and new issues not disclosed by the original bill; it is only necessary that such facts shall be germane to the subject-matter of the original bill.
    5. - The objection that a cross bill is not germane to the original is waived by a general answer to the cross bill.
    6. New parties may be brought in by a cross bill which seeks affirmative relief and shows that the persons added are necessary parties for that purpose; that is, that they have an interest in, or material connection with the subject-matter in dispute between the parties to the original bill.

      Equity — Cancellation of deed — Delivery of deed — Confidential relation —Principal and agent — Burden of proof — Evidence.
    7. Where a son, while occupying a position of confidential relation with his father, as his attorney in fact, secures possession of a deed from his father to himself which had been recorded after the death of the father, and there is evidence that the father had retained possession of the deed down to the time of his death, the burden of proof is on the son to show a delivery of the deed to himself by his father in the latter’s lifetime.

      8. In such a ease where there is no evidence of the delivery of the deed to the son during the father’s lifetime, and there is evidence that the father had declared that the deed was not to be recorded during the lifetime of his wife, and it appears that the decedent left his estate to his wife with a power of sale in the executor, a chancellor’s finding that the inference of delivery arising from the recording of the deed had been overcome, will be sustained by the appellate court.

      Deed — Delivery—Attorney for both parties.

    9. Where a deed or other writing is left with or given to a third person, who is the attorney of both parties, without an express understanding that he is receiving it for the grantee, or for delivery to the grantee, there is no delivery in law.

      Equity — Findings of fact — Review.
    10. A chancellor’s finding of fact that no partnership existed between a father and son, in the former’s lifetime, when based upon sufficient evidence, will not be reversed by the appellate court in the absence of manifest error.
    Argued Feb. 21, 1910.
    Appeal, No. 63, Jan. T., 1909, by plaintiff, from decree of C. P. Lackawanna Co., Sept. T., 1908, No. 30, dismissing bill in equity and sustaining cross bill in case of Grover C. Sears v. The Scranton Trust Company, administrator c. t. a. of Charles H. Sears, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an accounting of partnership assets and for the appointment of a receiver. Before New-comb, J.
    A cross bill was filed by the defendant praying for an injunction and for cancellation of certain deeds and a partnership agreement.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were (1) in dismissing the bill; (2) in entering a decree in accordance with the prayer of the cross bill.

      A. A. Vosburg, with him Fred W. Lidstone, for appellants.
    A suit in equity cannot be maintained by an administrator or executor to impeach a conveyance of his decedent: Fowler’s App., 87 Pa. 449.
    The cross bill must be confined to the subject-matter of the original bill: Andrews v. Kibbee, 12 Mich. 94; Gallatain v. Cunningham, 8 Cow. 361; Datz v. Phillips, 137 Pa. 203.
    There was no evidence in the case which would warrant the learned court below in entering a decree annulling the deeds by which real estate was passed from Charles H. Sears to,his son Grover C. Sears: Carney v. Carney, 196 Pa. 34; Worrall’s App., 110 Pa. 349.
    We contend that the Scranton Trust Company did not produce sufficient evidence to overcome the presumption of the bona fides of the conveyances and agreements between Charles H. Sears and Grover C. Sears, nor the presumption of the delivery of the papers arising from the fact that they were produced by Grover C. Sears and were acknowledged and recorded: Kern v. Howell, 180 Pa. 315.
    We further contend that there were no circumstances in the case which would warrant the learned trial judge in finding that the conveyances from Charles H. Sears to his son were not carried into effect: Clark v. Clark, 174 Pa. 309.

      George D. Taylor, for appellee.
    The confidential relation between the father and the son, Charles H. Sears and Grover C. Sears, which existed in this case from January 24, 1908, to the day of the father’s death is abundantly proved and is not disputed: Darlington’s Est., 147 Pa. 624; Knee v. McDowell, 25 Pa. Superior Ct. 641.
    The fact of relationship of parent and child between Charles H. Sears and Grover C. Sears is a mere incident in this case and in no way alleviates or modifies the other relationship of principal and agent or constituent and attorney in fact: Whelan v. Whelan, 3 Cow. 537; Martin v. Martin, 48 Tenn. 644; Jacox v. Jacox, 40 Mich. 473.
    Delivery to Lidstone was not a delivery in law: Arrison v. Harmstead, 2 Pa. 191; Thompson v. Lloyd, 49 Pa. 127; Unruh v. Lukens, 166 Pa. 324.
    May 2, 1910:
   Opinion by

Me. Justice Moschzisker,

Charles H. Sears purchased a steam grist mill in 1898, and another in 1902, and in 1907 he acquired certain buildings adjoining the first property. He operated the mills under his own name until his death, July 2, 1908. His son, Grover C. Sears, was in his service from 1902 until the last-mentioned date. On January 24, 1908, the father gave the son a letter of attorney granting him general power to carry on this milling business. Fred W. lidstone, a practicing attorney, prepared a voluntary deed conveying these several pieces of real estate from Charles H. Sears and wife to himself as trustee. The deed was dated January 28, 1908, and signed and acknowledged by the grantors on January 30, 1,908; but it was not recorded until July 14, 1908, when there was also placed upon record another deed dated and acknowledged February 11, 1908, conveying the same properties from Fred W. Lidstone, trustee, to Charles H. Sears and Grover C. Sears, partners under the name of C. H. Sears & Son. About the time when the deeds were recorded Grover C. Sears produced a writing signed by himself and by his father, dated February 3, 1908, providing for a partnership between the two for thirty years, under the name of C. H. Sears & Son, and in substance giving to Grover C. Sears an undivided one-half interest in the real estate in question; the only consideration moving from the son was an agreement to contribute his entire services to the business.

When Charles H. Sears died he left him surviving a widow, the son, Grover C., and another son, David. By his will, proved July 8, 1908, he made the Title, Guarantee & Trust Company of Scranton executor. No corporation of that name could be found and thereupon the widow and two sons renounced their right to administer in favor of the Scranton Trust Company. When the trust company, as administrator c. t. a., attempted to take possession of the real estate, Grover C. Sears set up a claim to the property, and filed the bill in the present case, in which he averred the execution and delivery of the two deeds and the articles of copartnership; that upon the signing of the latter he and his father took possession of the property and conducted the business thereunder; and that no settlement of the partnership accounts had taken place. He tendered an accounting, and prayed that the defendant be ordered to account and to pay over to him such sums as might be found to be due; and that a receiver might be appointed in the meantime.

The defendant filed an answer denying the validity of the deed to Lidstone; averring that such deed was without consideration and was procured through undue influence and fraud at a time when Charles H. Sears was in such a physical and mental condition resulting from the excessive use of alcoholic liquors as rendered him unable to understand and realize the nature of his act; that a strong confidential relation existed between Charles H. Sears and his son, Grover C. Sears, under the power of attorney possessed by the son; that advantage had been taken of these circumstances by the plaintiff.to procure the deed-in question, and also the subsequent deed and partnership agreement; that none of these papers was ever delivered; that Chañes H. Sears had continued in the sole' and exclusive possession and enjoyment of all of the properties and the business until the time of his death, when a wrongful possession was taken by Grover C. Sears. The defendant also filed a cross bill joining Fred W. Lidstone as a party defendant, reciting the bill and answer, practically averring the same facts as those contained in the latter, and further averring that all the writings in question were made in pursuance of a fraudulent combination between Grover C. Sears and Lidstone at a time when the latter occupied a confidential relationship to Charles H. Sears as his attorney at law. The cross bill prayed for the cancellation of the writings; that Grover C. Sears be required to account for the moneys in his hands, be restrained from exercising any act of dominion or control over the property belonging to his father’s estate, and be ordered to deliver up all books and writings in his possession belonging to the estate. The answer to the cross bill denied all of the allegations of fraud and averred that the deeds and partnership agreement were voluntarily executed and delivered by Charles H. Sears.

The chancellor who heard the case states the facts as we have narrated them. He further finds that the decedent died at fifty-seven in impaired health from continued excessive drinking; that the alleged partnership assets were valued at $17,979.87, and the decedent had no other property excepting a house and lot worth about $3,500; that the decedent was in possession of the real estate in question from the time he acquired title until the date of his death, carrying on the milling business in his own name, and that there was no apparent change in the ownership of either the properties or the business at any time; that the son Grover C. Sears was the confidential attorney in fact for his father under the written power from January 24, 1908, until the time of the latter’s death, and the evidence showed that during the last month of his father’s life the son was still actively exercising this agency and had signed bank checks in the father’s name in the conduct of the milling business; that after the date of the alleged agreement no partnership business was ever done or undertaken thereunder, but from that time on the business continued to be conducted as theretofore, the son acting only as his father’s agent and attorney in fact; that at the father’s death the son asserted no right as surviving partner; that at the time of his renunciation of his right to administer, the question arose as to the temporary management of the mills, and the son then asserted no such claim, but solicited a continuance of his agency under the administrator; that the existence of the partnership was not suggested to the administrator until some days thereafter, about the time the deeds were placed upon record; that Grover C. Sears had assumed personal charge of one of the mills some time after the grant of the letters of administration, and had done some business there since that time, but that there was no evidence that he did any business as the surviving member of the alleged copartnership.

The chancellor then finds that the decedent devised all of his estate to his wife, Mary E. Sears, “to have and to hold and to enjoy the same for her own use and benefit forever,” and by his will provided: “and to the end that my said wife may not be burdened with the care and management of my real estate, and that she may realize and enjoy the greatest income and benefit from the same, I do hereby order and direct that all my real estate be sold by my executor hereinafter named for the best price or prices that can be obtained for the same, my said executor to exercise his best judgment as to the proper time to sell the same, to realize the greatest return in cash or its equivalent to my estate, and until the said real estate is sold I do hereby empower my said executor to rent and collect the rents for the same for the use and benefit of my said estate, keep the buildings in necessary repair and keep the property insured against fire;” and he gave to his executor “full power to make, execute and deliver all necessary deeds and conveyances for sale and passing of a good title to my real estate as above directed.” Finally the learned chancellor states: “In the light of these facts it is believed that the partnership was never consummated by the delivery of the papers upon which the plaintiff’s case depends and that the projected partnership was abandoned by mutual consent of the parties. . . . The day before his death, July 1, 1908, was the last time the father was at the mill. It is believed the papers were then in his desk or else in the hands of Mr. Lidstone who had acted as his trustee and attorney in the transaction. The son first conceived the notion of claiming a partnership interest after the failure of his efforts to secure the management of the property under the administrator. Having access to his father’s papers he then filed the deeds for record and now asserts his claim in bad faith.”

The chancellor found that the decedent was in possession of his mental powers sufficiently to understand the nature and character of his acts about the time the papers in question were executed, but refused to make any finding as to the alleged undue influence, on the ground that it was irrelevant in view of the fact that the papers had never been delivered. On these findings the chancellor reached the following conclusions of law: “The several writings on which the plaintiff in the bill founds his claim operate as one instrument. On their face they import a voluntary gift of a large part of the father’s property to his son. At that time and at all times thereafter during the donor’s life, a highly confidential relation existed between the parties with respect to the subject-matter of the gift. Therefore the son has the burden of showing by clear and distinct proof that the gift was fully executed by the delivery of the papers. In the absence of any ostensible change of proprietorship and in view of the undisputed continuance of the relation of principal and agent with respect to the property, such proof is wanting; and the evidence is insufficient to warrant the conclusion that an actual partnership ever existed in the premises, or that the son ever acquired any interest in the disputed property. The evidence only warrants the conclusion that such partnership was proposed and the writings exhibited in the bill were made and executed accordingly, but that before their final consummation by delivery or anything having been done in pursuance of it, the proposal was abandoned by mutual consent of the parties. The will worked an equitable conversion of the real estate. The duty of actual conversion is with the administrator. The writings exhibited in the bill as the title papers under which the plaintiff therein makes claim are null and void and should be canceled. The invalid papers under which the son claims form a cloud on the title to the trust estate in the hands of the administrator. The invalid deeds having been recorded since the administrator’s succession, and a pretended right thereunder now being asserted by the testator’s son, they form a manifest obstacle to the execution of the trust created by the will. Under the pleadings and the counter pleadings the court has jurisdiction of the whole subject of the controversy.”

The chancellor took cognizance of both the bill and the cross bill, and entered a decree dismissing the former at the costs of the plaintiff, ordering the two deeds and the partnership agreement canceled, and directing Grover C. Sears to deliver to the administrator all papers, and to account for all moneys and property which may have come into his hands in connection with the business or’ real estate of his deceased father. Grover C. Sears has appealed from this decree, and contends: 1. That the defendant in the original bill, as administrator c. t. a., had no right to file the cross bill, and the court below should not have taken jurisdiction thereunder. 2. That such defendant had no right to relief under the cross bill as it was not confined to the subject-matter of the original bill. 3. That Lidstone could not be joined as a defendant in the cross bill as he was not a party in the original bill. 4. That the court was in error in placing the burden of proof upon the son to show the delivery of the deeds and the partnership agreement. 5. That the fact of the recording of the deeds was sufficient evidence of delivery, and that this had not been overcome by counter proof. 6. That the court fell into error in its findings of fact; particularly, in the finding that the partnership agreement was never consummated by the delivery of the papers upon which the plaintiff’s case depends, and that the projected partnership was abandoned by the mutual consent of the parties.

We will consider these contentions in the order in which they are stated.

1. The direction to the executor to sell the decedent's properties and pay the proceeds to the widow worked a conversion, and gave the executor full power and authority over the real estate, with the right to maintain any action at law or in equity which might be necessary to carry out the direction and to protect the interests with which it was charged: Dundas's App., 64 Pa. 325; McClure’s App., 72 Pa. 414; sec. 13, Act of February 24, 1834, P. L. 70; Jones’s App., 3 Grant, 250; Chew v. Chew, 28 Pa. 17; Kirk v. Carr, 54 Pa. 285. The administrator c. t. a. had all the rights that would have been possessed by the executor named in the will: Sec. 67, Act of February 24, 1834, P. L. 70; Nesbit v. Clarke, 1 Penny. 483; Lantz v. Boyer, 81 Pa. 325. While it is true that ordinarily a personal representative has not the right to maintain a bill or an action concerning the real estate of his decedent, the case is different where an executor is given an interest in the real estate such as under the present will. In a case like this where the executor is practically constituted a trustee of the real estate, and is directed to sell in order to effect a conversion, if a cloud exists upon the title, it is his right and duty to do all in his power to have the cloud removed so that he may more advantageously carry out the direction to sell. “Whenever a deed or writing ought not to be used, it is against conscience for the party holding it to retain it,” and “it will in general be ordered to be delivered up to be canceled:” Wilson v. Getty, 57 Pa. 266. “The jurisdiction to remove clouds from title is well settled; the relief being grounded upon the principle quia timet, that is, that the deed or other instrument constituting the cloud may be used to injuriously or vexatiously embarrass or affect the plaintiff’s title:” Dull’s App., 113 Pa. 510. A plaintiff out of possession holding the legal title will be left to his remedy by ejectment under ordinary circumstances, but when the law cannot furnish him full and complete relief, his resort to equity to have a cloud removed should not be questioned:” 3 Pomeroy’s Equity Jurisprudence, sec. 1398. In this connection it is to be considered that even though the question of title under the deeds might have been tried in an action at law, yet after that was settled, the unrecorded agreement reciting the contribution of the real estate to the alleged partnership would still be a cloud upon the title while outstanding in the hands of Grover C. Sears. The fact that ejectment might lie will not necessarily oust the jurisdiction of equity: Mortland v. Mortland, 151 Pa. 593; Williams v. Kerr, 152 Pa. 560; Clauer v. Clauer, 22 Pa. Superior Ct. 395. Whatever may be the prayer of a bill, if the kernel of the controversy is the legal title to land, then equity cannot be invoked; but where the question of the legal title is incidental and subordinate to other elements which call for the exercise of equitable remedies, equity will take and retain jurisdiction: Penna. Co. v. Ohio River Junction R. R. Co., 204 Pa. 356; Ind. B. & L. Assn. v. Real Estate Title Co., 156 Pa. 181; Wagner v. Fehr, 211 Pa. 435; Clauer v. Clauer, 22 Pa. Superior Ct. 395; Wilhelm’s App., 79 Pa. 120. In the last of these cases, which was a bill for an accounting, Mr. Justice Sharswood says: “Nor is there any doubt that though a question of title may be necessarily involved, it is within the jurisdiction, for, where there is jurisdiction of the subject-matter, that carries with it jurisdiction to decide every incidental question that is necessarily involved.” As the proceedings were originally brought the title to the real estate was an incidental issue; the cross bill was necessary to put the pleadings in shape for affirmative relief to the original defendant: Freeland v. South Penn Oil Co., 189 Pa. 54; McCune v. Lytle, 197 Pa. 404; but the question of title still remained a subordinate issue which could not defeat the right of the court to dispose of the whole controversy. The jurisdiction is so plain that it is not necessary to rule the question of assumed waiver; but it is to be noted that the chancellor calls attention to the fact that the point of lack of jurisdiction was not made until the final argument in the court below, and it appears from the record that it was at no time formally raised by demurrer, in the answer, or during the taking of the testimony. “While objections to jurisdiction can generally be made at any stage of the proceedings, objections to the jurisdiction of equity on the ground that the proceedings should have been instituted on the law side of the court, will not be entertained, unless made within a reasonable time after bill filed:” Penna. R. R. Co. v. Bogert, 209 Pa. 589. Such an objection should be formally made before the testimony is taken, and if not then made, it may be considered as waived: Shillito v. Shillito, 160 Pa. 167; unless the lack of jurisdiction is manifest and beyond doubt: Williams v. Fowler, 201 Pa. 336.

2. “A cross bill may and usually does introduce new facts and new issues not disclosed by the original bill;” it is only necessary that they shall be germane to the subject-matter of the original bill: 16 Cyc. 331. All of the issues raised by the cross bill in the present case are so closely connected with those tendered in the original bill as to be practically the same. In addition, the jurisdiction in this regard was not challenged by demurrer or by the general answer filed. “The objection that a cross bill is not germane to the original is waived by a general answer to the cross bill:” 16 Cyc. 332.

3. The question as to whether or not new defendants, not parties to the original bill, may be brought into the suit by cross bill depends upon the circumstances in each particular case. Although there is some conflict on this point, the decided weight of authority is that they may; and those cases which hold that they may not, are based upon a dictum to that effect by Curtis, J., in Shields v. Barrow, 58 U. S. 130. The general rule is that new parties may be brought in by a cross bill which seeks affirmative relief and shows that the persons added are necessary parties for that purpose; that is, that they have an interest in, or material connection with, the subject-matter in dispute between the parties to the original bill: Brandon Mfg. Co. v. Prime, 14 Blatchf. 371; Kanawha Lodge v. Swann, 37 W. Va. 176; Allen v. Tritch, 5 Col. 222; Hurd v. Case, 32 Ill. 45; Jones v. Smith, 14 Ill. 229; Underhill v. Van Cortlandt, 2 Johns. Ch. 339. We find no discussion upon this point in our cases, but equity rule 40 assumes that new parties may be added by cross bill, and expressly provides how service shall be made upon parties so brought into a suit; and in Given v. Sands, 216 Pa. 463, a new party was so introduced.

4. In ruling on the burden of proof, the chancellor relied upon Greenfield’s Est., 14 Pa. 489; Wistar’s App., 54 Pa. 60; Darlington’s App., 86 Pa. 512; Worrall’s App., 110 Pa. 349; Darlington’s Est., 147 Pa. 624; saying: “The entire conduct of, the parties to the writing, and especially that of the beneficiary, is so inconsistent with the theory of actual partnership as to negative the inference that it ever existed except on paper. The only apparent purpose of the deeds was to transfer title to the supposed partnership. If none existed, the inference of delivery to the same would be further repelled. Under these circumstances the burden of affirmative proof of bona fide delivery must be on the son who claims by a deed amounting to a voluntary gift from his father, whose confidential agent he was with respect to the property when the deed was made. He relied upon the presumption arising from the fact that the papers are now in his possession. That presumption is clearly rebutted by the circumstances. Where a conventional trust exists it is believed that the burden of proof is always on an agent who takes title to his principal’s property, where the transfer has been consummated. There is exactly the same reason why he should have the burden of fairly accounting for his possession of the title papers where extrinsic evidence of consummation is wanting and the actual delivery of the papers is open to serious question. It thus becomes apparent that whether the transaction here was technically a gift or not, is immaterial. The difference with respect to the proof of delivery as between this grantee and another who might have been a stranger to the grantor, arises from his status as an agent. But had he been a stranger, and the parties dealing at arm’s length, the strength of his case would still be that of a presumption of fact. He had possession of the papers, of which the deeds had been recorded after the grantor’s death. There were circumstances tending to rebut the presumption that he got them by delivery. That raised a question of fact for the trial judge. It was the exceptant’s privilege to make affirmative proof in his own behalf if any existed. Not choosing to do that, the question was submitted at the risk of the fact being found against him, and it was so found. . . . Under the circumstances of this case to hold that the burden of making out his right by affirmative proof of delivery of the title papers is not on the son, would be to disregard a settled rule, the sound policy of which could hardly find better illustration than in this instance.” These views are in accord with the principles laid down in the authorities relied upon by the chancellor, and we see no error in their application to the present case. The rulings were not based upon the relationship of son to father, but upon the confidential relationship of agent to principal, which existed in this case by virtue of the power of attorney under which Grover C. Sears was acting at the time the writings in question were executed. The case is quite different from Clark v. Clark, 174 Pa. 309, relied upon by the appellant. Although in that case the court below found a confidential relationship, yet on appeal Mr. Justice Green, who wrote the opinion, did not treat the case as affected by the rules applicable to dealings between principal and agent, evidently not considering that relation to have entered in any degree into the transactions before the court, and expressly stated: “It must be borne in mind that the relation between E. L. Clark and his mother was a contract relation and its fair and conscionable character must be considered with reference to that fact.” And further on, after outlining the manifold advantages to the mother: “A contract of that kind requires no help or explanatory testimony to sustain it. It imposes no burden of proof to. establish its validity, and if it did, the testimony is to be found in the case in great abundance.” The case is also to be distinguished on the other ground stated by Mr. Justice Gkeen, that the profits to be derived under, the contract were to come entirely from the son, and that “Such a contract having such results does not possess the faintest shadow of a gift.” Here the facts were just the opposite, the benefits all moved from the parent to the son and the element of gift was largely present. The burden of proof was properly placed upon the appellant.

5. It appears that some one left the two deeds at the recorder's office twelve days after the death of the decedent. The only witness who mentioned the subject of the recording was the justice of the peace who took the acknowledgments of Charles H. Sears and wife to the deed to Lidstone, and he states that Mr. Sears then said that the deed was not to be recorded during the lifetime of his wife. While as a general rule the mere fact that a paper is found upon record is evidence of delivery without further explanation, in the present case, it being shown that the deeds went upon record after the death of the decedent and prior to the death of his wife, and there being no evidence to show how the papers came upon the record — the production of such evidence under the fácts.in the case presumably being within the power of the ■ appellant — and the surrounding facts strongly indicating that neither the father nor the son ever treated the papers as delivered during the lifetime of the former, a chancellor could well conclude that the inference of delivery arising from the recording had been overcome. The testimony of Lidstone as to the delivery of the deeds to him is uncertain, vague and indefinite. The other testimony showing that- the deeds were seen in Mr. Lid-stone's office after their execution, standing as it does, unexplained, does not help the appellant’s cause. Mr. Lidstone was acting in the matter as attorney for both parties, and there is no testimony to show that the papers were ever delivered to him for the benefit of the son, and it cannot be so presumed. If such a delivery was made, the burden was upon appellant to prove it. Where a deed or other writing is left with or given to a third person, who is the attorney of both parties, without an express understanding that he is receiving it for the grantee or for delivery to the grantee, there is no delivery in law: Unruh v. Lukens, 166 Pa. 324. The only indication in the testimony as to the possession of these deeds after they were signed and before they were recorded is the fact that they were seen in the possession of the common attorney; without further explanation, it is fair to presume that he is the one who put them upon record; or, as suggested by the chancellor, the son may have secured them for that purpose either from Lidstone or from among his father’s papers. The recording under such circumstances would be but slight evidence of delivery and not sufficient to counterbalance the other facts which so strongly indicate that no delivery was ever made or intended during the lifetime of the father. In Clauer v. Clauer, 22 Pa. Superior Ct. 395, it is held that while a presumption of delivery arises from the recording of a deed and its possession by a grantee, yet if the deed was not delivered by the grantor during his lifetime, but was found and recorded after his death, it would not operate to pass title to the grantee. In Cameron v. Gray, 202 Pa. 566, we expressly approve the following passage from the case of Cook v. Brown, 34 N. H. 460: “So long as a deed is within the control of the grantor, there is no delivery. Whether in the hands of a third person, or in the desk of the grantor is immaterial .... and if the grantor dies without parting with his control over the deed, it has not been delivered during his lifetime, and after his decease no one can have the power to deliver it;” and in Critchfield v. Critchfield, 24 Pa. 100, we ruled that the presumption of delivery from the fact of recording might be rebutted after the death of the grantor, even in the face of evidence of express declarations by the grantor to the effect that he had given the land to his son, the grantee, that he would keep the title during his life, but the son would get the property after his death.

6.'The chancellor correctly states: “The conclusion is irresistible that, for reasons of their own, after the partnership papers were formulated, and without having put them in effect, the proposal was mutually abandoned and the son elected to continue as the father’s agent. True, there is some evidence that Mr. Sears was heard to say that he had taken his son into business, or was going to give him an interest in it, etc. These declarations are, at best, of vague and uncertain import, unconnected with any corresponding partnership act. If the papers had ever taken effect, there would have been some act in evidence at least tending to show a change of proprietorship. The son would not have been confined to evidence of mere declarations. ... It is to be considered that it was of the very essence of the son’s case to prove an actual partnership with his father; that he made no claim that any account had ever been kept in the partnership name; that the partnership, if it ever existed, was of recent date; that the books were available to show the name of every customer having occasion to take receipts; and that the vouchers could have been produced on subpoena.” Aside from these- weaknesses in the proofs, the preponderance of the testimony produced by the appellant tended to connect him with the .business of his father, not as a partner, “but in a way that in itself was always consistent with the inference of his agency under the father,” and the testimony to the contrary was meager and unconvincing. Under all the circumstances the appellant cannot justly complain of the chancellor’s decision that he had failed to establish the alleged partnership, nor of the decree entered.

We discover no manifest error in any of the findings of fact, nor do we find any errors of law in the matters called to our attention upon the record.

The assignments of error are all overruled, and the decree is affirmed at the cost of the appellant.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Kemp, Appellant, v. Reinhard.

      Will — Devise—Rule in Shelly’s case.

    Testatrix devised to a son the use and income of seven enumerated properties “for and during his lifetime.” In the next clause of her will she directed as follows: “And immediately after the decease of said son I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he, however, die without leaving issue living,” then over to another son in fee. Other devises in the will were to the devisees, their “heirs and assigns.” Held, that the devise in question was to the son for life, and that the rule in Shelly’s case had no application, inasmuch as the issue of the son did not take as issue from him, but as the root of a new succession directly from the testatrix.
    Argued Feb. 28, 1910.
    Appeal, No. 194, Jan. T., 1909, by plaintiff, from judgment of C. P. Berks Co., April T., 1909, No. 17, for defendant on case stated in suit of Jacob E. Kemp v. Valerius S. Reinhard and Pierce G. S. Kemp.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Case stated to determine the marketable title to real estate. Before Endlich, P. J.
    From the record it appeared that the material portions of the will of Amelia Sunday under which plaintiff claimed title were as follows:
    “Item. I give and devise to my son, Pierce G. S. Kemp, his heirs and assigns, all that certain messuage, tenement and tract of land situated partly in Maxatawny township and partly in Richmond township, said county, adjoining lands of Joseph Mengel, Caroline Sell, heirs of John Rahn, deceased, Conrad Stitler, Frederick Hill and others, containing one hundred and twenty three acres, more or less, with the appurtenances, and all hay and straw thereon at the time of my decease.
    “Item. I give and devise unto my son Jacob E. Kemp, the use and income for and during his lifetime of all that certain three story brick store and dwelling house and lot of ground, in which I now reside situated in Kutztown aforesaid, bounded on the north by White Oak' street, on the south by property of Albert S. Heffner, on the east by Sander alley, and on the west by Main street, containing a width on Main street of fifty three feet and four inches and a depth of one hundred and sixty feet.
    “Also of all that certain tract or piece of land situated in Maxatawny township, said County, bounded by lands of the Keystone Normal School, Dr. J. S. Trexler, estate of Perry Levan, deceased, and others, containing six acres, more or less.
    “Also of all that certain lot or piece of ground, situated in Kutztown aforesaid, bounded by lands of George J. Kutz, deceased, Jeremiah S. Trexler, Walnut street, and by a public road, leading from Kutztown to Kutz’s Mill, containing one acre and one half, more or less.
    “Also of all that certain lot or piece of ground, situated in Maxatawny township, said County, bounded by lands of Ephraim Sharadin estate of Jonathan Biehl, deceased, and others, containing three acres, more or less.
    “Also of all that certain tract of meadow lands situated in Kutztown aforesaid, bounded by Greenwich street, lands of the Keystone Shoe Manufacturing Company, Hannah Glasser and others, containing one and one quarter acres, more or less.
    “Also of all that certain two story brick dwelling house and lot of ground situated in Kutztown aforesaid, adjoining property of Solomon Ahn, David Saul, a private on the rear, and Walnut street.
    “And also of all that certain tract or piece of woodland, situate in Ruseombmanor township aforesaid, containing three acres and ninety two perches, more or less, it being the same tract which my father, Jacob Sunday, deceased, purchased from Jacob Brown and devised to me.
    “And immediately after the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.
    “Item. In consideration of the services rendered me by my said son, Pierce G. S. Kemp, since he is twenty one years of age, and as a compensation therefor, I give and devise unto my said son Pierce G. S. Kemp, his heirs and assigns, all that certain two story frame dwelling house and lot of ground situated on White Oak street, in Kutztown aforesaid, bounded by Sander alley, property of William G. Stetler, Ulrich J. Miller and White Oak street.
    “Item. All the rest, residue and remainder of my estate not hereinbefore disposed of I give, bequeath and devise unto my said sons Pierce G. S. Kemp and Jacob E. Kemp, their heirs and assigns in equal shares.”
    Defendant refused to take plaintiff’s title.
    The court in an opinion by Enough, J., entered judgment for defendant.

      Error assigned was in entering judgment for defendant on case stated.

      Isaac Hiester, for appellant.
    The main devise without any implication arising from the words “die without leaving issue” is a limitation of an estate tail: Angle v. Brosius, 43 Pa. 187; Grimes v. Shirk, 169 Pa. 74; Elliott v. Pearsoll, 8 W. & S. 38; McIntyre v. Ramsey, 23 Pa. 317; Philadelphia, etc., Co.’s App., 93 Pa. 209; Potts’s App., 30 Pa. 168; Allen v. Markle, 36 Pa. 117; Wynn v. Story, 38 Pa. 166; Auman v. Auman, 21 Pa. 343; Steacy v. Rice, 27 Pa. 75; Kleppner v. Laverty, 70 Pa. 70; Bassett v. Hawk, 118 Pa. 94; Carter v. McMichael, 10 S. & R. 429; Paxson v. Lefferts, 3 Rawle, 59; George v. Morgan, 16 Pa. 95.
    May 2, 1910:
    The words “die without leaving issue” do not import a definite failure of issue under the Act of July 9, 1897, P. L. 213, when a contrary intention appears by the will and such contrary intention does appear where the preceding gift without any implication arising from such words is a limitation of an estate tail to the first taker: Re O’Bierne, 1 Jones & LaTouche, 352; Dawson v. Small, 10 Eng. Ruling Cases, 847; Dilworth v. Schuylkill Improvement Land Co., 219 Pa. 527; Hastings v. Engle, 217 Pa. 419; Lewis v. Link Belt Co., 222 Pa. 139.

      F. A. Marx, with him C. H. Ruhl, for appellee.
    The rule in Shelly’s case has no application: Guthrie’s App., 37 Pa. 9; Findlay v. Riddle, 3 Binn. 139; Ingersoll’s App., 86 Pa. 240; Shaner v. Wilson, 207 Pa. 550; Mulliken v. Earnshaw, 209 Pa. 226; Todd v. Armstrong, 213 Pa. 570; Wood v. Schoen, 216 Pa. 425; Taylor v. Taylor, 63 Pa. 481; Daley v. Koons, 90 Pa. 246; Elliott v. Pearsoll, 8 W. & S. 38.
   Opinion by

Mr. Justice Brown,

The testatrix gave to her son, Jacob E. Kemp, the use and income of seven enumerated properties “for and during his lifetime.” Immediately after this provision for him there is the following separate clause in the will: “And immediately after the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.” The judgment of the court below on the case stated to determine whether the appellant had a fee simple in the properties was that he took but a life estate and that the testatrix had herself devised the remainder to the stock of a new inheritance, who, upon his death, would take from her as purchasers.

Though the intention of the testatrix may have been to give only a life estate to the appellant, if in the devise there was a limitation of the estate to his heirs to take by devolution from him at his death, her intention is overridden by the rule in Shelly’s case; but in every case in which the application of that rule is involved the first question is whether the devisor or grantor intended a limitation of the remainder in fee or in tail as such to the heirs of the first taker, or that there should be the root of a new succession taking directly from the devisor or grantor as purchasers. When the latter intention appears the rule has no place and the intention must be given effect.

The rule in Shelly’s case is not a means of ascertaining the intention of a testator, nor is it one of the construction of a will. It is one of law, unbending in its application, when the intention of the testator is ascertained that the heirs of his devisee of a freehold estate are to take from the devisee qua heirs. When such intention is ascertained the heirs take by descent from the devisee, and there is, therefore, vested in him an estate of inheritance: Doebler’s App., 64 Pa. 9; Shapley v. Diehl, 203 Pa. 566. “It is therefore always a precedent question, in any case to which it is supposed the rule is applicable, whether the limitation of the remainder is made to the heirs in fee or in tail, as such, and in solving this question, the rule itself renders no assistance. It is silent until the intention of the grantor or devisor is ascertained. But if that intention is found to be that the remainder-men are to take as heirs of the grantee or devisee of the particular freehold, instead of becoming themselves the root of a new succession, the rule is applied, though it may defeat a manifest intention that the first taker should have but an estate for life. It is very carefully to be noted, that in searching for the intention of the donor or testator, the inquiry is not whether the remainder-men' are the persons who would have been heirs, had the fee been limited directly to the ancestor. The thing to be sought for is not the persons who are directed to take the remainder, but the character in which the donor intended they should take. In the very many cases in which the question has arisen, whether the rule was applicable, the difficulty has been in determining whether the intention was that the remainder-men should take as heirs of the first taker, or originally as the stock of a new inheritance:” Guthrie’s Appeal, 37 Pa. 9.

That the testatrix intended to devise a life estate to her son, and nothing more, most clearly appears. The devise is to him “for and during his lifetime,” and this intention is repeated in the clause following the description of the properties, in which she refers to them as “devised to him herein for life.” This twice-expressed intention receives emphasis from a comparison of the devises to Jacob with those to her other son Pierce. Those to the latter are to him, “his heirs and assigns;” and still further emphasis comes from the residuary clause of the will, in which the residue of the estate of the testatrix is given to her two sons, Pierce and Jacob E., “their heirs and assigns in equal shares.” But what defeats the application of the rule in Shelly’s case is the unmistakable intention of the testatrix, not only that Jacob was to get only a life estate, but that after his death the remainder should not pass by devolution from him to his heirs, but directly from her to a designated class or to a designated individual. Her words are: “After the decease of the said Jacob E. Kemp, I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he however die without leaving issue living, I give and devise the same unto my son, Pierce G. S. Kemp, his heirs and assigns in fee.” From a reading of the entire will the conclusion is not to be avoided that the testatrix had two independent thoughts in her mind when she devised the seven properties: First, that she would give them to Jacob for life, and for life only; and she did so give them to him: and, second, that she would pass the remainder to be enjoyed by devisees from her, and she did so pass it in her words just quoted. As the remainder in these properties will pass to the issue of Jacob, or to Pierce, as purchasers from the testatrix, the rule in Shelly’s case has no place in this controversy, and the learned and discriminating judge below correctly so held.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Stocker, Appellant, v. Schneider.

      Judgment — Opening judgment — Fraud—Variance between bond and contract — Evidence.
    1. A judgment entered on a judgment bond being properly opened a judgment on a verdict for defendant on the trial of a resulting issue will be affirmed, where the evidence in both proceedings tends to show that the plaintiff agreed in writing to sell to the defendant a brewery plant and assign certain leases on licensed houses, and execute a new lease after the termination of the existing leases for the term of ten years; that the judgment bond given in pursuance of the contract varied from the latter in the fact that it provided for semiannual payment of interest instead of an annual payment, and provided for payment of principal in one year instead of ten years; that the defendant was induced to sign the bond by false representations of the counsel who had prepared it, who was acting for both parties; that plaintiff had refused to assign the leases or execute a new lease for ten years; and that the contract was an entire one inasmuch as the leases were to be used in connection with the brewery business.
    2. In such a case it is proper for the jury to take into consideration the value of the leases and deduct such amount from the amount of the original judgment.

      Evidence — Expert evidence — TÁquor law — Breweries.
    3. It is not improper for a trial court to permit witnesses who are experienced in the manufacture and sale of beer to estimate the value of the control of licensed properties as adjuncts or auxiliaries to a brewery plant.

      Argued March 1, 1910.
    Appeal, No. 26, Jan. T., 1910, by plaintiff, from judgment of C. P. Berks Co., Nov. T., 1907, No. 1, on verdict for plaintiff in case of Katharine B. Stocker v. August Schneider.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    Issue to determine amount due on judgment. Before Endlich, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The record showed the following verdict and judgment:
    October 12, 1908, verdict finding: 1. As to the first issue that the amount owing as principal to plaintiff from defendant is $57,084. 2. As to second issue that the debt is payable in ten years from the date of the bond and mortgage. 3. As to the third issue that interest thereon is payable annually.
    January 3, 1910, judgment entered on verdict finding: 1. As to the first issue that the amount owing as principal to plaintiff from defendant is $57,084. 2. As to
    second issue that the debt is payable in ten years from the date of the bond and mortgage. 3. As to the third issue that interest thereon is payable annually.
    January 3, 1910, “And now, to wit: January 3, 1910, this cause came on to be heard at this term and was argued by counsel and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.: that the verdict of the jury be approved and that the amount owing on the bond and warrant and mortgage dated April 6, 1907, given by the defendant to the plaintiff is $57,084, payable in ten years from the date thereof with interest at the rate of five per cent per annum payable annually, that the execution be set aside and that the plaintiff pay the costs.”
    Plaintiff appealed.

      Errors assigned were (1) in making absolute rule to open judgment; (3-22) various rulings on evidence and instructions.
    May 2, 1910:

      C. H. Ruhl, with him J. K. Grant, for appellant.

      Isaac Hiester, with him William Kerper Stevens and Garrett B. Stevens, for appellee.
   Opinion by

Mr. Justice Stewart,

Plaintiff and defendant entered into articles of agreement for the sale by the former to the latter of a brewery plant with its equipments, and a dwelling house, in the city of Reading. Among other things that were to pass to the defendant under this contract of sale, was the landlord’s right in certain leases of licensed properties in the city of Reading of which plaintiff was owner; and upon the expiration of these leases, a new lease of all the properties was to be given to the defendant for the term of ten years at the same rental provided for in the existing leases. The consideration defendant was to pay for all the property and privileges sold was $137,000; of which sum $87,000 was to be a deferred payment to be secured by bond and mortgage upon the premises. The transfer of the brewery license was approved by the court April 8, 1907. Immediately thereupon the cash payment was made, and defendant having received his deed for the premises gave to plaintiff Ms bond and mortgage for the deferred payment. The leases were not assigned; nor was the lease to the defendant executed or delivered. Six months thereafter plaintiffs caused judgment to be entered by confession on the bond; and claiming default in payment of interest under the terms of the bond, proceeded by execution to enforce collection of the whole debt. Thereupon defendant went into court and asked that execution be stayed and the judgment opened for purpose of defense, assigning as cause, first, that he executed the bond on the representations of the counsel who had prepared it, and who was acting for both parties, that it conformed as to its terms in all respects to. the agreement; that under the agreement the interest was to be payable annually and the principal debt in ten years, whereas under the bond the interest is to be paid semiannually, and the principal debt in one year; that it was not until the execution had been issued that he learned that the bond and judgments entered thereon did not correspond in terms with the stipulations in the written contract; second, that plaintiff having failed and refused to assign and transfer the leases for the licensed properties, and lease to defendant the same properties for a term of ten years as provided in the contract, there had been a failure of consideration to this extent. Upon consideration of the evidence taken on the rule granted the court made the rule absolute and directed an issue for the determination of these questions, (1) how much is owing to plaintiff from defendant? (2) whether said debt is payable in ten years, or in one from the date of the bond and mortgage? and (3) whether interest thereon is payable annually or semiannually? The finding of the jury abated from the judgment $30,916, on account of plaintiff’s failure to comply with the contract in regard to the leases, and otherwise reformed the judgment to accord with defendant’s contention. The findings being approved by the court, judgment was directed in accordance therewith. We have two appeals to consider: the first being from the order making absolute the rule to open the judgment; the second from the order approving the verdict and directing judgment thereon. As to the first: it is not open to question that if the facts as averred in the defendant’s application be taken as true, it would be most inequitable to exact compliance with the strict letter of the bond. If defendant was induced to sign the.bond by false representations as to its terms, made by one on whose statements he would have a right to rely, he would have a right to have it reformed so as to correspond with the true understanding of the parties. If the leases entered into the consideration for which the bond was given and they were wrongfully withheld from him, he would be entitled to relief pro tanto. The reply that defendant could have his action at law to recover value of the leases begs the question. The contract was entire. This appears not only from the contract as written, but the only conclusion derivable from the evidence submitted is that the purpose was to take all the property scheduled in the contract, or none of it. The property was treated as a whole, and its entirety was of the essence of the contract. If in point of value in connection with the business of the brewery plant, the leases bear the proportion to the whole consideration to be paid by the defendant, which the jury has adjudged, it would seem obvious that the benefit to be obtained from these was a most important inducement to the purchase of the brewery and entered essentially into the contract. On the general proposition as to the opening of the judgment, it became simply a question of the sufficiency of the evidence to support the averments. There is but one rule by which the sufficiency of evidence is to be adjudged. If upon the evidence submitted the facts are left so far disputable that a verdict rendered thereon for the defendant would be sustained, then its sufficiency for the purpose of opening the judgment is established; otherwise the judgment may not be opened. The defendant testified that he did not read the bond before signing it; that it was not read to him; that the counsel who had prepared it assured him that it corresponded in terms with the stipulations in the written agreement; and that relying upon this information he executed it. His son, who was present at the signing, testified in corroboration. The court very properly considered as well the very marked variation in the bond from the terms of the contract, which, without any consideration whatever therefor, gave to the plaintiff an advantage over the defendant which the ordinary debtor would be most reluctant to -surrender. Under the contract the defendant could not be compelled to pay the principal debt for ten years, and he was to have the privilege of paying any part of it within that- time. Under the bond as written, he was required to pay it all at the expiration of one year. The advantage of the change was wholly and exclusively with the plaintiff, and all the disadvantage wholly and exclusively with the defendant. It was upon such evidence as this that the court directed the opening of the judgment. A mere recital of it is sufficient to show that the judicial discretion was properly exercised.

On the trial of the issue, the same testimony touching the variance between the bond and the contract was presented on part of defendant and prevailed with the jury. Nothing is assigned on this branch of the case except the refusal of the court to give binding instructions for the plaintiff. We have expressed the opinion that it was sufficient to support the verdict, and further discussion is not required. The assignments of error, with this single exception, relate to rulings of the court in connection with the defendant’s demand for a reduction of the judgment on account of failure to transfer the leases in accordance with the terms of the contract. It was plaintiff’s contention (1) that the defendant had voluntarily surrendered all claim to the leases, and that when settlement was made April 8, 1907, and the bond and mortgage were given, it was understood that the leases were to be accounted of no value, and that the transaction was then and there closed. On the other hand, the defendant contended that the transfer of the leases on that day was impracticable because the amounts due from the several payments which defendant was to assume had not then been ascertained, and the transfer of the leases was simply postponed until these amounts could be ascertained. The testimony was conflicting throughout. But hére again it was a question of fact, and a finding by the jury either way would have been so far supported by the evidence as to bring it within established rules and principles. This is our conclusion after a very careful reading of the evidence and full consideration of the argument advanced for the appellant. The assignments of error are too numerous to permit separate discussion of each. In what we have said a number of them have been disposed of. While all of those remaining have been given consideration, it is only necessary to refer specifically to one or two. On behalf of plaintiff instruction was asked to the effect that defendant could default nothing from the judgment on account of leases, because he had not shown performance of his own covenant with respect to them. The instruction was refused on the ground that the points assumed facts which were for the jury’s determination. Conceding that such burden as is here implied rested on the defendant, whether he met it by showing readiness and willingness on his part to perform, depended wholly upon whether the larger credit was to be given defendant and his witnesses or the plaintiff and hers. This again was for the jury. Subsequent to the date of the contract between plaintiff and defendant, and before the giving of the bond, plaintiff had contracted to sell to one Gelsdorf one of the licensed properties which she owned. It was contended that defendant’s knowledge of these facts amounted to a waiver of his right to a lease of that particular property, and the court was asked to so instruct the jury. The instruction was properly refused. An affirmance of the points submitted would have been a virtual withdrawal from the jury of the evidence introduced by the defendant to show that while he had knowledge of the existence of the contract for the sale of this property, he had been informed by Gelsdorf that he, Gelsdorf, did not intend to complete his purchase, that he would forfeit his contract and the $500 he had paid to his vendor, and that he, the defendant, had acted in this belief when he executed the bond. The single fact of knowledge on part of defendant, in view of the other evidence in the case, was wholly inadequate to support the conclusion sought to be drawn. Nor did the fact that defendant failed to communicate to plaintiff the information he had received from Gelsdorf as to the latter’s' purpose to forfeit his contract, furnish ground for estoppel. There was no relation of confidence between plaintiff and defendant; they stood in no other relation to each other than that of vendor and vendee. A number of assignments relate to the admission of evidence touching the value of the untransferred leases. While more or less latitude was allowed in this connection, we cannot say that it exceeded proper limits, in view of the peculiarity of the subject ■inquired into. The question presented was one upon which those experienced in the manufacture and sale of beer' could speak most intelligently, whether their testimony be called expert or otherwise. Their familiarity with the business and trade enabled them to estimate the value of the control of licensed properties as adjuncts or auxiliaries to a brewery plant, in a way that others could not. All who testified had not equal opportunities of judging; but this is always the case when such inquiries are entered upon. It was for the jury to discriminate between them under proper instructions, and these were given. Upon a careful review of the whole case, we find the record free from error.

The assignments are overruled; both appeals are dismissed at the costs of the appellant, and the judgment is affirmed.


text:
    Converse v. Paret, Appellant.

      Corporations — Stockholders—Double liability.

    Under the laws of Minnesota which impose a liability upon stockholders of certain classes of corporations to creditors to an amount equal to the par value of their stock, the liability is fixed upon the persons whose names stand on the stock register of the company as the owners of the stock; and if an executor permits stock to be registered in his own name without indicating in any way on the register of the company that he holds the stock as executor, he will be liable individually for assessments levied by the receiver of the company when it becomes insolvent.

      Argued March 9, 1910.
    Appeal, No. 407, Jan. T., 1909, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1907, No. 23, for plaintiff non obstante veredicto in case of Theodore R. Converse, Receiver of the Minnesota Thresher Manufacturing Company, v. Carrie G. Clark Paret.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover assessments on stock. Before Staples, P. J.
    The facts appear by the opinion of the Supreme Court.
    The constitution of the state of Minnesota, adopted October 13, 1857, sec. 3, art. X, provides as follows:
    “Each stockholder in any corporation (except those organized for the purpose of carrying on any kind of manufacturing or mechanical business) shall be liable to the amount of stock held or owned by him.”
    And the laws of that state, inter alia, further provide as follows:
    “Statutes 1849-1858 (280). Sec. XIII. No person holding stock in such corporation as executor, administrator, guardian or trustee, and no person holding stock as collateral security, shall be personally subject to any liability as stockholder of such corporation, but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in like manner as the testate or intestate would have been if he had been living, or the ward or person interested in such trust fund would have been, if he had been competent to act, and held the same stock in his own name.
    “Statutes 1891. Sec. 3133. Same — Not personally liable — Persons holding stock in a corporation as executors, administrators, guardians or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in the trust fund would be, if they were respectively living and competent to act, and held the stock in their own names.
    “Statutes 1894. 3418. Executors, etc., may vote as stockholders — An executor, administrator, guardian or trustee shall represent the shares or stock in his hands at all meetings of the corporation, and may vote as a stockholder.
    “3419. Executors, etc., not to be personally liable— Persons holding stock in a corporation as executors, administrators, guardians or trustees shall not be personally subject to any liabilities as stockholders; but the estates and funds in their hands shall be liable in like manner and to the same extent as the testator, intestate, ward or person interested in the trust fund would be, if they were respectively living and competent to act, and held the stock in their own names.
    “Revised Laws, 1905. 2881. Executors, etc., may vote — Not personally liable — Every executor, administrator, guardian, or trustee shall represent the shares of stock in his hands, for all purposes, at all meetings of the corporation, but while acting in good faith shall not be personally liable; but the estates and funds in his hands shall be liable in like manner and to the same extent as the beneficiary or other represented party or interest would be if competent to act and holding the stock in their own names, respectively.”
    At the trial the jury returned a verdict in favor of the defendant. Subsequently, the facts being undisputed, the court entered judgment for plaintiff for $2,000 non obstante veredicto.

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

      F. B. Holmes, for appellant.
    The statute recognizes the justice of making a discrimination between those who hold stock in their own right, and those who hold -it merely in a representative capacity, or as trustees or by way of collateral security: Burgess v. Seligman, 107 U. S. 20; May v. Genesee County Savings Bank, 120 Mich. 330 (79 N. W. Repr. 630); Colonial Trust Co. v. McMillan, 188 Mo. 547 (87 S. W. Repr. 933); Cook v. Carpenter, 212 Pa. 177.
    May 2, 1910:

      Wilton A. Erdman, with him George H. Butler, for appellee.
    Defendant by accepting certificates of stock made out to her in her own name, and by permitting the stock to stand on the books of the Thresher company, is estopped to deny her ownership of such stock as against the creditors of the corporation: Dunn v. State Bank of Minneapolis, 59 Minn. 221 (61 N. W. Repr. 27); Harper v. Carroll, 66 Minn. 487 (69 N. W. Repr. 610-1069); State v. Bank of New England, 70 Minn. 398 (73 N. W. Repr. 153); Marshall, Field & Co. v. Evans, Johnson, Sloan & Co., 118 N. W. Repr. (Minn.) 55.
    The Minnesota statute exempting executors and others who hold stock in a fiduciary capacity from personal liability as stockholders does not extend to the case where an executor holds stock in his own name: Markell v. Ray, 75 Minn. 138 (77 N. W. Repr. 788); Adams v. Clark, 85 Pac. Repr. (Colo.) 642; Davis v. First Baptist Society, 44 Conn. 582; Sherwood v. Illinois Trust & Savings Bank, 195 Ill. 112 (62 N. E. Repr. 835).
   Opinion by

Mr. Justice Stewart,

James B. Clark, a citizen of the state of Connecticut, died in August, 1894. By his last will he appointed his wife, the defendant in this action, executrix, and gave her the full use and control of his entire estate until his only son should arrive at the age of twenty-one years, at which period the will directed that whatever estate then remained should be divided equally between widow and son. At the time of his death Clark was the owner of forty shares of the capital stock of the Northwestern Manufacturing & Car Company, a corporation organized under the laws of the state of Minnesota. In 1884, the Thresher Manufacturing Company, also a Minnesota corporation, acquired the assets of the Manufacturing and Car company and substituted its own stock for that of the former. The defendant, as executrix of the will of Clark, surrendered the certificates of stock that were in her husband’s name, and received in exchange certificates for forty shares in the Thresher company in her own name, Carrie G. Clark. She had given no directions as to the transfer, but the stock so issued to her was carried on the stock ledger and also upon the stub of the certificate book as the stock of Carrie G. Clark. The promoters of the new company organized a voting trust, and in December, 1887, the defendant delivered to the trustees the certificates that had been issued to her in her own name, signing at the same time an agreement in which she averred that she individually was the owner of the stock, and receiving in • exchange a trustees’ receipt which recited that the stock was held by them for Carrie G. Clark. Upon surrender of the trustees’ certificate in 1894, a certificate for forty shares of the capital stock in her then name, Carrie G. Clark Paret, was issued and receipted for by her. Once in 1886, and again in 1897, defendant voted by proxy the stock standing in her name. In 1901, at the suit of a creditor the Minnesota Thresher Company was adjudged insolvent, and the plaintiff in this action was appointed receiver. Under the laws of Minnesota stockholders in corporations such as this are held liable to the amount of their stock at its par value. The courts directed two assessments on the capital stock of the company, one in 1902, of thirty-six per cent, and one in 1907, of sixty-four per cent. At these dates the defendant’s home was in Monroe county in this state. Action was there brought against her for the recovery of these assessments. The defense set up was that the defendant was not the beneficial owner of the stock, but that the same belonged to the estate of her deceased husband; that the stock had not been issued in her name at her direction; that she continued to hold it in her name because unadvised that such fact indicated individual ownership on her part; that she had no knowledge of how it was registered on the books of the corporation; that she never asserted ownership over it; that as executrix of her husband’s will she had fully accounted for it, — subsequent, however, to the insolvency of the corporation — and had transferred it to her son who was a legatee under the will. On the trial of the case defendant testified very fully in support of these averments contained in the affidavit of defense, and nothing was offered by way of contradiction. It was submitted to the jury to determine the question of ownership of the stock; and it was further submitted to them — unnecessarily, since there were no facts in dispute — to determine whether defendant was estopped from claiming that she was not the owner of the stock by reason of anything she had done or failed to do in connection with the certificate which had been issued to her. Whether an estoppel results from established facts, is a question for the determination of the court: Lewis v. Carstairs, 5 W. & S. 205. On both issues the finding was for the defendant. A motion for judgment non obstante followed. The court, in a lengthy opinion filed, sustained the motion and directed judgment to be entered for the plaintiff, on the ground that under the statutes of Minnesota as construed by the highest judicial tribunal of that state, “the liability of a person to assessment on stock in an insolvent corporation, is fixed by the names in which the stock stands on the stock register of the corporation when it ceases to be a going concern, irrespective of who is the real or absolute owner thereof, subject, of course, to the knowledge of the person sought to be charged of how the certificates are actually issued, or to acts which make the person a party to its appearing on the stock register.” It is conceded that as a general statement of the law of Minnesota governing the liability of stockholders of insolvent corporations this is correct; but the applicability of the general rule to cases such as that under present consideration is denied. Section XIII of the general statutes of Minnesota, 1849-1858, reads as follows: “No person holding stock in such corporation as executor, administrator, guardian or trustee, and no person holding stock as collateral security, shall be personally subject to any liability as a stockholder of such corporation, but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in like manner as the testate or intestate would have been if he had been living, or the ward or person interested in such trust funds would have been if he had been competent to act and held the same stock in his own name.” In repeated decisions the Supreme Court of the state has held that the exemption from liability allowed by this statute, when the stock is held as collateral security, extends only to cases where the fact of such collateral holding appears on the stock register. Of the cases cited by the learned trial judge we need only refer to Dunn v. State Bank, 59 Minn. 221; Harper v. Carroll, 66 Minn. 487; Marshall, Field & Co. v. Evans, 118 N. W. Repr. 55. That no case has been found where an executor has been held liable individually for an assessment on stock belonging to an estate in his hands, but which was registered in his own name, is without significance; it means nothing more than that no case involving such fact has yet arisen. The conclusion is irresistible that' the construction placed on the statute, with respect to the rights- of those holding stock as collateral security, must necessarily be the same with respect to the rights of one holding as executor, guardian or trustee. It is impossible to find any distinction between them in the statute, and no reason can be suggested why they should be distinguished. The learned trial judge was entirely correct in accepting it as the settled law of Minnesota, upon the authorities cited, that the exemption allowed by the statute can be claimed only when the registry of the stock discloses that it is held by the party to whom the certificate had been issued, not as owner, but as pledgee or trustee. A like statute with this, in the state of Missouri, has received similar judicial construction there, a fact unimportant except that the construction placed on the statute by the Missouri court met with disapproval and dissent in the supreme court of the United States. The reference is to the case of Burgess v. Seligman, 107 U. S. 20. There the circuit court had sustained the right of a party registered as the holder of stock to show that in point of fact it was held as collateral security. On appeal the United States supreme court affirmed the circuit court, notwithstanding the supreme court of Missouri had meanwhile decided in several cases that the registry as it stood was conclusive against the party, the supreme court of the United States asserting its right to disregard these decisions and its unwillingness to be bound by them. The basis of this affirmance was that when the circuit court rendered its decision in the case, the question raised had not then been adjudicated by the Missouri supreme court, and the former court having adopted its own interpretation of the law applicable to the case, as it had a right to do, such interpretation was not to be disturbed because of the fact that a different interpretation had been adopted by the state court after the right had accrued to the circuit court. True, the case holds, that a construction of the statute which would give the holder of the stock the right of exemption from liability, when it is shown that notwithstanding the registry of it in his own name he holds it as collateral, is supported by the better reason, and refers approvingly to decisions in Maryland and New York where similar statutes have been so construed; but the court makes it very clear that its decision, though contrary to that of the Missouri supreme court, is not an attempt to overrule or set aside the latter except as a controlling authority in the particular case then under consideration. The opinion proceeds, “Since the ordinary administration of the law is carried on by the state courts it necessarily happens that by the course of their decisions certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgments; as they also always do in reference to the doctrine of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt.” As thus explained the case of Burgess v. Seligman, 107 U. S. 20, is not an authority governing in the present issue. It is enough to know that the Minnesota courts have repeatedly since the decision in Burgess v. Seligman (1882), reasserted their adherence to the construction they originally gave this state statute, notably in Harper v. Carroll, supra, decided in 1896. The suggestion that the Minnesota cases holding a pledgee liable where the registry discloses nothing inconsistent with his ownership of the stock, rest on the fact that when rendered there was no statute in existence exempting pledgees from liability, is simply an unsupported suggestion, and nothing more. If the statute which we have above quoted was ever either wholly or in part repealed, so far as it relates to holders of stock as collateral, it was for the appellant to show the fact. In Marshall, Field & Co. v. Evans, 118 N. W. Repr. 55, decided in 1908, there is a clear recognition of the existence of the statute. It is there said “It is well settled that one for whom corporate stock has been transferred in pledge, or in trust, or as collateral security for money loaned, but who appears in the books of the corporation as the general owner thereof, is liable as a stockholder for the debts of the corporation.” The language here used is significant not only with respect to the existence of the statute, but it connects trustees with pledgees in such a way as to leave no doubt that the construction given the statute applies equally to both.

Aside from these controlling considerations we see no equity in the defense here attempted on the facts as established. That question, however, need not be discussed. It is sufficient that under the laws of Minnesota the defendant is estopped from asserting ownership of the stock in anyone but herself. The judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Thorp v. Boudwin, Appellant.

      Negligence — Actions—Parties—Fall of building — Evidence—Opinion —Building inspector — Landlord and tenant.

    1. Where a person is injured by the collapse of a building, and it is doubtful whether the owner or the tenant is liable for the negligent act which caused the accident, the party injured may sue each party, but if he recovers judgment against both, he can claim only one satisfaction. In a suit against the tenant the latter may show that he was without fault, and that the negligence of the owner was the cause of the accident. Thus he may show that the building condemned was unsafe before he occupied it, that it had been improperly repaired, and that the owner had notice of its defective condition.
    2. In such a case where the tenant is charged with overloading the floors and thus causing the accident, he may show that at the time of the occurrence the floors were only loaded in the usual way, and that there was no unusual loading on that date to cause the accident.
    3. In an action by an employee’s wife against the employer to recover damages for the death of her husband caused by the collapse of a building leased by the defendant, the case is for the jury where the plaintiff charges that the accident was caused by the overloading of the floors of the building, and produces one witness who testifies that he was a city building inspector, that he was familiar with the building for several years, that prior to the occupancy bjr the defendant he condemned it and required repairs to be made; and that immediately after the accident he had examined every part of the building, and judging from the broken joists and other conditions was of the opinion that overloading caused the collapse, although he did not know as a fact that the floors had been overloaded.
    Argued March 22, 1910.
    Appeal, No. 395, Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 2,702, on verdict for plaintiff in case of Amelia It. Thorp v. Howard Boudwin.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.
    At the trial the defendant produced a number of witnesses to show .the faulty construction of the building-prior to the tenant’s occupancy and its condemnation by the city authorities. These offers were overruled. [2-6]
    The court also overruled an offer of the record of the suit of Amelia R. Thorp against the owner of the building. [7]
    Defendant presented these points:
    2. If the jury find that the owner leased the premises to the defendant as a slate mantel factory, and did not post a notice according to sec. 26 of the act of assembly of June 8, 1893, as to the floor capacity of the said building, and the defendant, in ignorance of its capacity, overcrowded the same, their verdict must be for the defendant. Answer: Refused. [8]
    6. Under all the evidence their verdict should be for the defendant. Answer: Refused. [9]

      The court charged in part as follows:
    [Taking then for granted that this building would sustain seventy pounds to the square foot, in the point of view of Mr. Boudwin, had he any right to use that building where greater weight would be put upon the building than would ordinarily be put upon the floors of a dwelling?
    In your judgment, should a man in the ordinary course of affairs, a man engaged in that sort of business, know what the capacity of the floors ought to be? Should a man take an ordinary dwelling and load the floors up with heavy stones without making any inquiry as to the bearing capacity of the floor?
    If you find that it was Mr. Boudwin’s duty to make some inquiry, some investigation of this building, so as to ascertain whether the floors were capable of sustaining the extra weight which he proposed to put upon them in his business, then you might find that he was negligent in not making such an investigation. Before, however, the plaintiff can recover you must also find from the testimony that the overloading of these floors was what caused them to fall and carry the front wall .with them.] [10]
    Verdict and judgment for plaintiff for $3,000. Defendant appealed.

      Errors assigned were (1) in admitting the evidence of the building inspector called by plaintiff; (2-7) various rulings on evidence, quoting the bill of exceptions; (8-10) above instructions, quoting them.

      Henry H. Farley, with him E. P. Gallagher, for appellant.
    The case is on all fours with the case of Martin v. McKenna, 176 Pa. 306.
    The plaintiff failed to prove:
    1. The alleged overloading.
    2. That if the same was overloaded, the defendant did it negligently or knowingly.
    3. That the building was unsafe for the purposes for which it was used.

      4. That if the building was unsafe for the purposes for which it was used, the defendant had notice of it: Bradbury v. Coal Co., 157 Pa. 231; Huey v. Gahlenbeck, 121 Pa. 238; Reese v. Clark, 146 Pa. 465; Philadelphia & Reading R. R. Co. v. Schertle, 97 Pa. 450; Alexander v. Water Co., 201 Pa. 252; Stringert v. Ross Township, 179 Pa. 614.
    The cause of the accident was the question to be determined by the jury, and as the case was not an intricate, extraordinary or unusual case, there was no justification for the admission of Mr. Mylertz’s testimony: Shaw v. Boom Co., 125 Pa. 324.
    The doctrine which is laid down in the cases of joint tort feasors, that there can be two judgments, but one recovery, does not apply in the case at bar: Becker v. Philadelphia, 217 Pa. 344.

      William J. Smyth, for appellee.
    It was established by the evidence that the building was of dwelling-house construction, and unfitted to be used as a slate factory, and when the owner leased the building for such a purpose without taking the precautions to comply with the law' looking to the safety of those who might be employed therein, he created a legal nuisance, by which he became liable for injuries or damage resulting therefrom: Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. 111; Knauss v. Brua, 107 Pa. 85; Fow v. Roberts, 108 Pa. 489; Brown v. White, 202 Pa. 297.
    Employers must provide a safe place in which their employees may work: Finnerty v. Burnham, 205 Pa. 305; Lillie v. Am. Car & Foundry Co., 209 Pa. 161; Schiglizzo v. Dunn, 211 Pa. 253; New v. Milligan, 27 Pa. Superior Ct. 516.
    The character of the building itself, of light dwelling-house construction, was sufficient to warn both the owner and the tenant of the danger of loading it with heavy material: McKenna v. Gas Co., 198 Pa. 31; Toole v. Del., Lack. & West. R. R. Co., 27 Pa. Superior Ct. 576.

      May 2, 1910:
    It is a principle of law, requiring no extended discussion, that all parties who contribute by their negligence to an injury are answerable in damages, and the suits may be brought separately or jointly: Fox v. Northern Liberties, 3 W. & S. 103; McKenna v. Gas Co., 198 Pa. 31; Toole v. Del., Lack. & Western R. R. Co., 27 Pa. Superior Ct. 576; Seither v. Traction Co., 125 Pa. 397.
   Opinion by

Mr. Justice Elkin,

We have concluded the judgment in this case must be reversed and our only doubt is whether the reversal should be with or without a venire. The husband of appellee was killed by the falling of the front wall and part of the floors of a building occupied by appellant as a slate mantel and imitation tile factory. The deceased husband was an employee of appellant and was engaged in the performance of duties for which he was employed when the building without warning collapsed and the fatal injuries resulted. Appellant occupied the building as tenant under a lease in writing designating the purpose for which it was to be used. It was used for the purpose stated and there is no evidence except that of the expert who examined the premises immediately after the accident to show that the use made of the building was an improper one, or that it was not suited to the use for which it was rented. The negligence charged is that appellant failed to provide and maintain a safe place to work, and that he negligently and carelessly permitted the walls, joists and floors to be and remain in an unsafe condition and the floors to be overweighted. No evidence was introduced to show that the joists and floors were not in good condition at the time and before the happening of the accident, or that the place was unsafe in any respect. The negligence charged in these respects must be considered out of the case so far as the record now stands. The single charge of negligence remaining is that the floors were overweighted, and this was the only question pressed at the trial. We agree with the contention that the overloading of the floors under the circumstances of this case might properly be left to the jury in order to determine whether the accident was due to this cause. But the overloading, if it be a fact, must be established by testimony like any other substantive fact, else there is nothing to submit to the jury. The only witness produced to sustain this allegation was an expert engineer of construction who had served as a building inspector for the city, and as such was familiar with the building in question. He went upon the premises soon after the accident, made observation of the conditions as he then saw them, and testified that in his opinion the accident was caused by overloading the floors. He did not know as a fact that the floors were overloaded, or indeed to what extent they were loaded, but judging from the broken joists and other conditions found on the premises he gave it as his opinion that overloading caused the collapse. It is a close case on the vital question whether the opinion of this expert alone, based upon what he saw after the accident, was sufficient to carry it to the jury. We have concluded, however, in view of the fact that as building inspector he was familiar with the building for several years; that prior to the occupancy by appellant, as tenant he had condemned it and required repairs to be made; that immediately after the accident he had examined every part of the collapsed building and found slate slabs estimated to weigh 175 pounds per cubic foot on some of the floors and considerable quantities of slate stored in every part of the building as well as piled on the ground among the debris; that these facts and the opinion of the expert based upon them warrant a submission to the jury on the question of overloading. But it must not be overlooked, that all of these facts might be true, and yet the direct cause of the accident be the falling of the front wall of the building by reason of defective construction. Someone seems to have been at fault, and the important question to all concerned is whether it was the owner of the premises or the tenant who occupied them. This depends upon what caused the collapse of the building. Was it occasioned by the tenant overloading the floors or did it result from the faulty construction and repair of the walls by the owner? Separate suits were brought, one against the owner and the other against the tenant. The plaintiff was clearly within her legal rights in thus instituting two suits on the theory that either the tenant or the owner was answerable in damages for the trespass committed, and since the liability of one or the other depended upon the facts which were in dispute, the only safe course to follow was to sue each party before the statute of limitations became a bar to either suit. While it is possible that a judgment may be recovered against the defendant in each suit, the plaintiff can only claim one satisfaction: Seither v. Traction Co., 125 Pa. 397. At this point and for these reasons it will avoid repetition to state that the seventh assignment of error is without merit.

The question to be determined is who is responsible for the injuries for which damages are claimed. Was the fault that of the owner or tenant? In such a controversy the tenant clearly has the right to introduce testimony tending to show that he was without fault and that the negligence of the owner was the cause of the accident. In this respect the learned trial judge erred in refusing to allow several offers of testimony. It was competent for appellant to show that the building had been condemned as being unsafe before its occupancy by him; that it had been improperly repaired by the owner; that the walls had not been properly bonded; that the owner had notice of these defective conditions at the time repairs were made; and that as a result of the defective construction of the walls the building collapsed. The defense was twofold, first, that the floors were not overloaded, and second, that the collapse of the building was caused by defective walls. Appellant was entitled to the full benefit of both branches of his defense; and as we read the record this was denied him. It was competent to show whose duty it was to post the notices, and we see no reason why the inspector who had to enforce the law might not testify as to the rule or custom in posting notices, but we do not hold this to be reversible error because the fact could be proven by offering the act of assembly in evidence. It was clearly competent for appellant to show that the repairs to the walls had not been properly made when required and that the owner had notice of the unsafe alterations he proposed to make, and that these conditions remained to the time of the accident. Items of testimony tending to show these facts should have been admitted.

Also, it was competent for appellant to show that at the time of the accident the floors were only loaded in the usual way and that there was no unusual loading on that day to cause the accident. For these reasons we think the third, fourth, fifth and sixth assignments of error must be sustained, as also must the tenth but for a different reason. The first, seventh, eighth and ninth assignments are overruled.

We do not find in the record any evidence to warrant the instruction complained of in the tenth assignment. There is no evidence to show how much weight was on any floor, nor that it was the duty of the tenant to make an inspection for the purpose of ascertaining the carrying capacity of the floors and walls in his business. The difficulty with this case is, and it applies to both sides, there is too much theory and not enough facts. This case is not necessarily ruled by McKenna v. Paper Co., 176 Pa. 306; but when it is again tried substantive facts should be proved as a foundation upon which to base the assumptions, theories and distinctions relied on to sustain or defeat a recovery.

Judgment reversed and a venire facias de novo awarded.