author: Me. Justice Moschziskee,

text:
    Tatem, Appellant, v. Galloway.

      Promissory note — Contract—Evidence.
    In an action by endorsers on a promissory note who had been compelled to pay it, against a former endorser, where the defense is a guarantee by the plaintiffs to cash two mortgages which they held for defendant and pay the note in suit and four other notes, a certificate for the defendant and judgment thereon will be set aside by the appellate court where the written evidence in the case not only does not establish the contract set up by the defendant, but is inconsistent with it, and there is no oral proof supplemental to or explanatory of the documentary evidence sufficient by itself, or in connection with the former, to sustain a finding that such a contract existed.
    Argued Feb. 5, 1912.
    Appeal, No. 123, Jan. T., 1911, by plaintiff from certificate and judgment of C. P. Delaware Co., June T., 1910, No. 10, for defendant in case of Henry B. Tatem and Samuel B. Dobbs v. John L. Galloway.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Beversed.
    Assumpsit by endorsers on a promissory note against a former endorser. Before Johnson, P. J.

      Action in assumpsit on a promissory note by Henry E. Tatem and Samuel B. Dobbs, who were endorsers, against John L. Galloway, a prior endorser who was also the payee of the note. The documentary evidence referred to in the opinion of the Supreme Court was briefly as follows: A letter of July 27, 1908, from the defendant to the plaintiff Dobbs, in which the writer, after referring to his contract Avith one John Maddock for the millwork on certain houses at Collingswood, N. J., and to the difficulty he was having in securing payments from Maddock, states: “So if you have the two mortgages of $2,500 each fixed to secure the $5,000 I Avill take $1,000 cash now and his note for the balance due at present for three months and as each delivery is made you to provide the cash for half of the amount and I take his note for the other half. It being understood that you will provide the cash to pay notes as they fall due. In consideration of the above being carried out I agree to allow you 5 per cent, on the amount guaranteed. It is important that I get the payment and this other secured in order to have the work pushed as it will be a very short time until he will be ready for finish, and the mill insists on me securing myself in the future.” A reply from Dobbs to defendant dated July 28, 1908, —“I have your letter of the 27,.....I see no reason why you cannot be absolutely guaranteed and this is the way we would do it. You accept Mr. Maddock’s note for $5,000, together with two of the mortgages, as collateral security, and myself and H. E. Tatem will agree to cash these mortgages for you at maturity of note, which would be drawn for four months. We would probably be in position to advance you some money before hand, as we would expect to dispose of these mortgages right away. Now, if this is satisfactory, we would want you to accept above as full settlement, and proceed to ship all the material required at once, so as there will be' no delay, and we will also want you to sign a release of liens for all ten houses, and rely absolutely on your guarantee.” A reply by tbe defendant to Dobbs, bearing tbe same date, — “Yours of the above date handed me by Mr. John Maddoek, I can only reply.....I do not want to be the cause of dragging the operation and waiting for every little item.....so it is useless to waste your time any more if my proposition could not be carried out, .....I am very sorry that we could not come to terms and rush it through,.....” A contract dated August 10, 1908, between the defendant and Maddoek as to the mortgages mentioned in this prior correspondence,— “Whereas, John Maddoek is indebted to John L. Galloway.....and whereas, the said Maddoek has agreed to give to the said Galloway certain promissory notes of the said Maddoek aggregating the sum of $5,000, and has delivered as collateral security for the said notes two certain mortgages of $2,500 each.....and whereas, the said Galloway has agreed to proceed forthwith (with his work on the houses).....and to execute a release of liens thereon. And whereas, it has been agreed that the said notes and mortgages shall be held by said Samuel B. Dobbs for the parties interested therein, said notes being delivered from time to time to said Galloway, upon his furnishing the material in question, it being understood and intended that said mortgages are to secure the payment of said notes.” A declaration, dated August 12,1908, by the plaintiffs, as to the purposes for which they held the two mortgages in question, viz: “We hold two mortgages for $2,500 each.... to secure the payment of a certain note for $1,000 made by John Maddoek to the order of John L. Galloway and endorsed by us, and after the payment of the said note the said mortgages or the proceeds thereof, are to be turned over to the said John L. Galloway, and that the said mortgages shall not be sold by us without the consent of the said John L. Galloway.” A letter dated August 12,1908, from Dobbs to the defendant concerning the above declaration and the disposition to be made of the mortgages, —“Enclosed find the declaration which was to be signed by Henry R. Tatem and myself, showing that I hold the two mortgages for you, and that the mortgages or the proceeds thereof will be turned over to you after the note of $1,000 which we endorsed, is paid. As we cannot dispose of these mortgages without your consent since signing this paper, it seems to me you better write us a letter, telling us to dispose of the mortgages for you, and also state the amount of commission you are willing to pay.” A reply from the defendant to Dobbs, dated August 13, 1908, as follows: “You hold two mortgages of $2,500 each.....under direction of John Maddock to secure payments due by him to me for and on account of my contract with him for the supply of mill and stair work. And you are hereby authorized to make sale of said mortgages at their full value, the proceeds thereof to be paid to me. Provided that the cash shall be realized therefrom in time to meet certain notes given by the said John Maddock, or to be given, amounting to $5,000 as and when the same become due, and for your services in this behalf you will be allowed five per cent, of the face value thereof as previously agreed.” A letter from the defendant to the plaintiffs dated November 30, 1908, —“In reference to your endorsement on a certain note .....(Describing note in suit) I hereby acknowledge that you nor either of you are not in any way obligated for any part of this debt, that the endorsements are purely as an accommodation, so I can get the note discounted at my bank, and that I understand that two mortgages which S. B. Dobbs holds for me are intended for the payment of this and other notes, which I have taken from John Maddock.” A contract between the plaintiffs, as parties of the first part, and the various creditors of Maddock, including the defendant as the party of the sixth part, reciting, — “Whereas, Peter McGrhehan is the owner in fee of all the following ten tracts of land (describing the building operation in question).....And whereas, the said Henry R. Tatem and Samuel B. Dobbs hold or control mortgages of record upon each of the said ten lots of land in the sum of $2,500. And whereas, there has been advanced.....$1,600 upon each mortgage; and whereas, said mortgages are under process of foreclosure; and whereas, the said party of the second, third, fourth, fifth, sixth, seventh, eighth, ninth and tenth parts, respectively have,.....mechanics’ liens upon the premises aforesaid, in the following amounts respectively: (Here follows a list of creditors with the amount due to each, including the defendant for $5,694.00). And whereas, it is considered that certain additional work remains yet to be done in order to complete the said houses.....the approximate cost of which will be as follows: (Here follows an itemized statement totalling $5,261). Now this agreement witnesseth..... 1. That the parties of the first part shall cause the said houses to be completed subject to the approval and supervision of a committee of the parties interested, to consist of John L. Galloway (the defendant), Francis B. Weaver and J. Fithian Tatem, and shall present a complete release of liens from all persons who shall furnish labor or material for the purposes of such completion. 2. The parties of the first part shall proceed with the foreclosure of their mortgages for the purpose of making clear and complete title to said premises, and upon sale under said foreclosure the title shall be taken in the name of Joseph L. Thomas, who will hold the same for the purpose of this agreement.....3. Thereupon there shall be created a new bond and mortgage of twenty-five hundred dollars upon each of the lots..... There shall then be assigned and delivered to the said parties of the first part, such of said new bonds and mortgages.....as shall be necessary to pay to the parties of the first part the sum of sixteen thousand dollars, with interest.....; and also.....such sum of money as they shall have paid and expended, subject to the approval of the aforesaid committee, for the completion of said houses under the terms of this agreement, with interest.....; and also.....the snm which they may have incurred in the matter of the foreclosure of their mortgages first above referred to, in accordance with the terms of this agreement. 4.....5. The balance of the proceeds of such of the aforesaid new mortgages as may remain, and of the said properties, shall be distributed pro rata among the said lien claimants (including the defendant), according to the amount of their claims as aforesaid, and upon an equal pro rata to the said parties of the first part for such sum as they have advanced towards the completion of said houses in excess of the sum of sixteen thousand dollars, and the amount paid by them under the terms of this agreement for the completion of said houses, the sum on which they are entitled to pro rata with said lien claimants being agreed to be the sum of twenty-three hundred and fifty-six dollars and thirty-seven cents. 6. Should there arise any surplus after the payments herein above provided, in this event interest at the rate of five per cent, per annum shall be paid out of such surplus to the said lien claimants therein mentioned, such interest to be computed from the date of said claims ;■ and provided further, that should there arise any surplus after the payment of the aforesaid sums, that then in this event such surplus shall be distributed by the said Joseph L. Thomas, trustee, and the said committee herein above named, to wit, John L. Galloway, Francis D. Weaver and J. Fithian Tatem.....”

      Errors assigned, among others, refusal of judgment n. o. v. in favor of the plaintiff.

      Ellwood J. Turner, with him Thomas O. Haydock, Jr. and J. Fithian Tatem, for appellant.

      W. Roger Fronefield, for appellee.

      March 18, 1912:
   Opinion by

Me. Justice Moschziskee,

In 1908 the plaintiffs sold land to one Maddock and agreed to advance money for the erection of ten houses thereon, to be secured by a first mortgage on each house and lot. The buildings were commenced, and the defendant, Galloway, agreed to furnish the mill-work for the sum of $5,694; he supplied it to the value of about $2,000, but declined to deliver more until that sum was paid and the balance secured. An arrangement was then entered into whereby Maddock signed promissory notes to the order of the defendant, in the sum of $£>,000, and handed them to the plaintiffs; he also delivered to the latter mortgages for $2,500 each on two of the houses. The plaintiffs accepted the mortgages and the notes and took Maddock’s receipt for $5,000 on account of the $25,000 which they had agreed to advance; one of these notes was endorsed by the defendant and then by the plaintiffs, and the latter delivered it to the defendant, who again endorsed and had it discounted; this is the note in suit for $1,000. The mill-work was completely delivered, and the plaintiffs handed over certain other of the notes to the defendant, retaining the balance. Maddock failed, and the defendant, with other creditors, liened the houses. The notes were not paid at maturity and the plaintiffs were obliged to take up the present one at the suit of a subsequent endorser, and in turn they brought- this action against the defendant as a prior endorser. The defendant demanded a certificate against the plaintiffs for $4,000 and interest, a balance claimed to be due him, alleging that in order to facilitate him in getting his money anJ thus aid the operation, the plaintiffs had agreed to deliver the notes to him as the mill-work was shipped, and had contracted to sell the two mortgages for $2,500 each and pay the notes as they came due; and “by reason of the violation of their agreement to cash the two mortgages and to pay the notes the plaintiffs made themselves liable to the defendant for the payment of the full amount due on said notes.” The jury found for the defendant with a certificate for $4,488, and the plaintiffs have appealed. There are several assignments of error but it is only necessary to discuss the sixth, which complains of the refusal of judgment non obstante veredicto in favor of the plaintiff.

The principal contention of the defendant was that the plaintiffs had. entered into a definite binding contract with him to sell or cash the two mortgages and to pay the notes at maturity. While the plaintiffs contended that the mortgages were simply collateral for the notes, upon which they had become endorsers for the accommodation of the defendant upon his express written agreement that they should not be held liable in any manner, and that they had never contracted to cash the mortgages or pay the notes. The plaintiffs showed that they were prima facie holders for value, since they had been forced as endorsers to pay and take up the note. The defendant undertook to rid himself of his apparent liability as a prior endorser, by establishing the plaintiffs’ contractual obligation to relieve him from the payment of all the notes as they should fall due, and to provide for and take care of the same.

The proofs relied upon consisted of documentary and oral evidence. A review of the former, the material parts of which will be found fully briefed in the reporter’s notes preceding this opinion, fails to support the position taken by the defendant. On the contrary, standing alone, this evidence shows that the original proposition made by the defendant to the plaintiffs was not accepted, and that the counter proposition from the latter to the former was declined. After this, the contract between Maddock and Galloway, the declaration by the plaintiffs as to the capacity in which they held the mortgages and the accompanying letter from Dobbs, all tend to support the contention of the plaintiffs to the effect that the mortgages were simply collateral for the notes, and that the references to their sale which occur in several of the documents, merely had relation to a. suggestion made by the defendant that the plaintiffs should act as his agents in disposing of the securities for his account. Again, the letter of November 30,1908, from the defendant to the plaintiffs expressly acknowledges that the latter were accommodation endorsers without any liability to him, and plainly indicates that the mortgages were held by Dobbs for the defendant as collateral to secure payment of the notes. And finally, the agreement entered into by the defendant, as a member of the creditors’ committee, with the plaintiffs, whereby the mortgages in question were put in the general fund for the benefit of all of Maddock’s creditors, including the defendant, is inconsistent with the position taken by him in this action; and in this connection, it is to be noted that the $5,000 receipted for by Maddock, covering the two mortgages originally set aside for the defendant, was not included by the plaintiffs in the $16,-000 advances referred to in the agreement in question.

We have looked in vain for oral testimony supplemental to or explanatory of the documentary evidence, sufficient by itself or in connection with the former, to sustain a finding of such a contract or undertaking as contended for by the defendant. Throughout his testimony the defendant seems to assume that there was such a contract, but he nowhere states positively that the plaintiffs ever undertook to cash the mortgages and pay the notes, nor does he detail any conversation between himself and the plaintiffs from which such a conclusion could be drawn. In fact, when the plaintiffs produced witnesses in rebuttal and the trial judge asked what particular testimony was to be rebutted, counsel was unable to designate it; and this because there had been no real evidence of the agreement contended for by the defendant. But the witnesses for the other side said plainly and positively that the plaintiffs held the mortgages simply as collateral for the benefit of the defendant, that there bad never been any understanding to the contrary, and that the mortgages bad been repeatedly tendered to tbe defendant but be bad declined to accept them because tbe properties were not completed. Tbe defendant bimself, when upon tbe stand, stated, “They went ahead and finished eight bouses leaving my two out. That is why I would not accept tbe mortgages,” and again, “I wanted my two first mortgages which I am willing to take today.”

Tbe evidence was insufficient to support tbe verdict and certificate in favor of tbe defendant; on tbe contrary, thereunder tbe plaintiffs were entitled to binding instructions; tbe sixth assignment of error is sustained and judgment is here entered for tbe latter; tbe damages to be assessed in tbe court below.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Kehoe v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Stopj hole and listen — Grade crossing— Gase for jury.

    In an action by a girl seventeen years old against a railroad company to recover damages for personal injuries sustained at a street crossing of a railroad, it appeared that the accident happened on a dark and foggy night, and at a crossing where there were no lights in the immediate vicinity. At the crossing planks were laid parallel with the rails and extended the entire width of the street so that there was no part of the crossing specially set aside for pedestrians. As the plaintiff approached the crossing from the east and was a few feet from the south bound track, a heavy freight train was passing on that track. After the rear of this train had passed the crossing about 100 or ISO feet, plaintiff testified that she approached the crossing, stopped, looked and listened, and neither seeing nor hearing an approaching train proceeded on her way. The heel of her shoe caught in the space between a plank and the west rail of the north bound track. Before she could extricate herself a freight engine approaching from the south caught her, and her foot was severely injured. The testimony for the plaintiff although contradicted tended to show that the engine had no head light or other light, that no signals or whistles were given, and that the stationary signal bell of the crossing was not ringing. Held, (1) that it was immaterial that the plaintiff in making the crossing deflected from the side of the street inasmuch as no part of the crossing was specially set aside for pedestrians; (2) that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.
    Argued Feb. 5, 1912.
    Appeal, No. 104, Jan. T., 1911, by defendant from judgment of C. P. Bucks Co., Feb. T., 1910, No. 9, on verdict for plaintiff in case of Mary Kehoe, the Surviving Parent of Julia F. Kehoe and Julia F. Kehoe, a Minor, in her own right v. Philadelphia & Reading Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Stout, P. J.
    The facts concerning the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for Mary Kehoe for $3,253, and for Julia F. Kehoe for $6,488.33. Defendant appealed.

      Errors assigned, were various instructions and refusal of binding instructions for the defendant.

      Harman Yerkes, for appellant.
    There was no negligence on the part of the defendant: Bard v. Ry. Co., 199 Pa. 94; Urias v. R. R. Co., 152 Pa. 326; Anspach v. Ry. Co., 225 Pa. 528; Walsh v. R. R. Co., 222 Pa. 162; Lonzer v. R. R. Co., 196 Pa. 610; Hauser v. R. R. Co., 147 Pa. 440; Paul v. Ry. Co., 231 Pa. 338; Wood v. Penna. R. R. Co., 177 Pa. 306; Bornscheuer v. Trac. Co., 198 Pa. 332.
    The plaintiff was guilty of contributory negligence: Dickey v. Tel. Co., 46 Me. 483; Del., Lack & W. R. R. Co. v. Cadowm, 120 Pa. 559; Catawissa R. R. Co. v. Armstrong, 49 Pa. 186; Loughrey v. R. R. Co., 201 Pa. 297; Hauser v. Cent. R. R. of N. J., 147 Pa. 440; Blotz v. R. R. Co., 212 Pa. 154; Ellis v. R. R. Co., 216 Pa. 415; Carroll v. R. R. Co., 12 W. N. C. 348; Myers v. R. R. Co., 150 Pa. 386; Hamilton v. R. R. Co., 227 Pa. 137.

      Grim & Grim, for appellees.
    The case was for the jury: Quigley v. Del. & H. Canal Co., 142 Pa. 388; Longenecker v. R. R. Co., 105 Pa. 328; Cromley v. R. R. Co., 211 Pa. 429; Rottmund v. R. R. Co., 225 Pa. 410; Bond v. R. R. Co., 218 Pa. 34; Bickel v. R. R. Co., 217 Pa. 456; Jones v. R. R. Co., 202 Pa. 81; Baughman v. R. R. Co., 92 Pa. 335; Brown v. Penna. R. R. Co., 15 Phila. 321; Thirteenth & Fifteenth Sts. Pass Ry. Co. v. Boudron, 92 Pa. 475; Creed v. Pa. R. R. Co., 86 Pa. 139; Goodman v. Canal Co., 167 Pa. 332; Behling v. Pipe Lines, 160 Pa. 359; Bard v. Ry. Co., 199 Pa. 94; McIlhenney v. Phila., 214 Pa. 44; Rick v. Wilkes-Barre, 9 Pa. Super. Ct. 399; Erie v. Magill, 101 Pa. 616; Sheridan v. Palmyra Twp., 180 Pa. 439; Kingston Twp. v. Gibbons, 18 W. N. C. 334; Keller v. Ry. Co., 214 Pa. 82; Miller v. Lewistown Elec. Light, Heat & Power Co., 212 Pa. 593; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; McNeal v. Ry. Co., 131 Pa. 184; Kasarda v. R. R. Co., 222 Pa. 146; Evans v. Brookville Boro., 5 Pa. Super. Ct. 298; Forker v. Sandy Lake Boro., 130 Pa. 123.
    March 18, 1912.
   Opinion by

Mr. Justice Mestrezat,

This is an action of trespass brought to recover damages for injuries sustained by Julia F. Kehoe, the minor I>lainti£f, on the evening of August 14, 1909, while she was attempting to cross the defendant’s tracks on Market street in the borough of Perkasie, Bucks county. At this point there are two tracks making substantially a right-angled crossing with Market street. The tracks run north and south, and the passenger station is about one hundred and fifty or two hundred feet south of the street. The entire width of the street is forty feet, and the crossing is made by long planks running parallel with the rails and extending the full width of the street. The space between the planks is filled with gravel. There was no walk between the outer rails of the two tracks on either side of the street devoted solely to the use of pedestrians. In other words, there was no part of the street set apart for use by pedestrians in crossing the tracks. The part of the street occupied by the railroad crossing is slightly elevated, and is approached on an incline on either side of the tracks.

On the evening of the accident, Julia Kehoe passed the crossing from west to east to do some shopping. As she approached the crossing from the east on her return and was a few feet from the rails, a heavy freight train was passing on the south-bound track. The stationary signal bell was ringing. After the rear of the train had passed the crossing about one hundred or one hundred and fifty feet, she testifies that she approached the crossing, stopped, looked and listened and neither seeing nor hearing an approaching train proceeded on her way. The heel of her shoe caught in the space between a plank and the west rail of the north-bound track. At that moment she looked around and saw a freight engine approaching from the south, and before she could extricate her foot the engine passed and her foot was severely injured. She says she was about in the middle of the highway, while some of the defendant’s testimony shows her to have been north of that point at the time she was injured.

This action was brought to recover damages for the injury the girl sustained- by the accident. The negligence alleged was the manner in which the train approached the crossing. It is averred that the locomotive had no headlight or any other light to indicate its presence; that no signals, whistles or any other noise or light or method was used by the defendant to warn the girl of the approach of the engine and train, and that the stationary signal bell was not ringing.

It was the duty of the defendant to give notice of the approach of its train to this crossing, and if it failed, as averred in the statement, it was guilty of negligence. We have examined the evidence with care and are satisfied that it was sufficient to send the case to the jury on the question of the defendant’s negligence. The testimony of the girl fully sustained the averments in her statement as to the manner in which the locomotive approached the crossing. She introduced other witnesses who corroborated her story. She and they also testified that the night was not only very dark but was misty and foggy; that there were no lights burning at the passenger station which is about one hundred and fifty or two hundred feet south of the crossing. Both the southbound and north-bound trains were freight trains and of course had no occasion to stop at the passenger station. If the testimony of the girl is believed, she stopped and listened immediately before she attempted to make the crossing. She testifies positively that no signal whatever was given of an approaching train and she is corroborated by some witnesses whose testimony is equally positive as to the failure of the defendant to signal the approach of its train. This was not negative but positive testimony which, notwithstanding the direct and positive contradictory testimony of the witnesses on the part of the defendant, required the question to be submitted to the jury. In view of the evidence introduced by the plaintiff, therefore, it is manifest, we think, that the defendant’s negligence was a question for the jury, and that the court would have committed error had it granted the defendant’s request to rule the question against the plaintiff as a matter of law.

We find no evidence in the record which would have justified the jury in convicting the girl of negligence in crossing the tracks, It is true she deflected from the side of the street in attempting to make the crossing but that was not a negligent act under the circumstances. There was no part of the street specially set aside for pedestrians to use in crossing the tracks. Planks laid parallel with the rails extended the entire width of the street, and the crossing was of the same character and in the same condition at all points of the street. On a former occasion while passing the crossing, the girl had observed some defects at the south side of the street, and she gave this as a reason for turning aside and not using that side of the street at the time of the accident. It was not negligence per se for her to cross the tracks diagonally under the circumstances. Pedestrians could use any part of the crossing if they used proper care and did not remain an unnecessary length of time on the tracks. The crossing was all of the same construction, and there was the same space between the plank and the rail at either side of the street as there was in the middle of the street where the accident occurred. The accident, therefore, could as readily have occurred at the side of the street as in the middle of it. If her foot had been caught in the space between the plank and the rail at the side of the street, the collision would have occurred just as it did. Had it not been for her detention by reason of the heel of her shoe being caught in the crevice, she would have passed the crossing in safety and there would have been no accident. She was not struck as she stepped on the track, nor would she have been struck at all if it had not been for the unfortunate occurrence of the heel of her shoe becoming fastened in the space between the plank and the rail. The collision by which she was injured and the resultant injuries were, therefore, not occasioned by her failure to cross at the side of the street instead of attempting to make the diagonal crossing. Her detention on the track, not by reason of anything which she did or omitted to do, prevented her from having cleared the crossing before the arrival of the tram.

There was evidence in the cause which required the court to submit it to the jury and, finding no error in the charge, the judgment is affirmed.


author: Mr. Justice Potter,

text:
    Union Savings and Building Association of West Philadelphia, Appellant, v. Vahle.

      Mechanics’ lien — Erection and construction — Repairs.
    1. A mechanics’ lien is not invalidated by the fact that it includes a claim both for repairs and for erection and construction where it appears as a fact that the work done by the claimant under his contract was in substance that of new construction after a fire, even though a small part of the work,, if standing by itself, would properly have been classed as repairs.

      Mechanics’ lien — Several structures — Single plant — Averment of claim.

    2. Where a mechanics’ lien is filed against several structures which were all intended to form a single plant, it is better practice to aver clearly, in the claim that the buildings were intended to form one plant, and that in fact they do constitute such a plant; but there is nothing in the mechanics'’ lien1 law which makes such an averment in the claim essential, or which requires the courts to hold that its omission invalidated the claim.
    Argued Feb. 6, 1912.
    Appeal, No. 138, Jan. T., 1912, by plaintiff from order of C. P. Delaware Co., June T., 1908, No. 27, dismissing exceptions to auditor’s report in case of Union Savings & Building Association of West PMladelpMa v. Henry VaMe et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Mosohzisker, JJ.
    Affirmed.
    Exceptions to report of A. A. Cochran, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, was in dismissing exceptions to auditor’s report.

      Sheldon Potter, of Potter, Dechert & Norris, with him John M. Broomall, for appellant,
    cited as to the claim both for repairs and erection and construction: Morris v. Henderson, 126 Pa. 216; Wharton v. Investment Co., 180 Pa. 168; Knelly v. Horwarth, 208 Pa. 487; Tenth Nat. Bank v. Smith Const. Co., 218 Pa. 581; Wilson v. Canevin, 226 Pa. 362.
    Cited as to the failure of the claimant to allege that the building against which the lien is claimed is a single business plant: Todd v. Gernert, 223 Pa. 103; Schively v. Radell, 227 Pa. 434.

      E. H. Hall, with him Jas. B. Robertson, for appellee,
    cited: Mt. Pleasant Boro. v. R. R. Co., 138 Pa. 365; American Car & Foundry Co. v. Water Co., 215 Pa. 520; Lauman’s App., 8 Pa. 473; Griel’s App., 7 Sadler 137; Dunbar v. Washington Foundry, 210 Pa. 58.
    March 18, 1912.
   Opinion by

Mr. Justice Potter,

The contention in this case arose out of the distribution of a fund which resulted from a sheriff’s sale, under a judgment upon a writ of scire facias sur mortgage. The question involved was whether the lien of the mortgage was prior to that of certain mechanics’ liens. Exceptions were filed to the schedule of distribution, as reported by the sheriff, and the matter was referred to an auditor. Testimony was taken on behalf of the lien claimants, and of the mortgagee. The auditor sustained the validity of the mechanics’ liens, and held that they were prior to the lien of the mortgage. The auditor found as a matter of fact that the several buildings described in the mechanics’ liens filed, constituted a single business plant, and he held that the failure of the claimants to state this fact in the claim did not invalidate the liens. The court below confirmed the report of the auditor, and directed distribution to be made in accordance therewith. The mortgagee has appealed, and its counsel here contend that the lien of the appellee was invalid, (1) because it included a claim both for repairs and for erection and construction, while it did not appear upon the face of the claim that all the buildings formed a single plant; and (2) because the claim was filed against several structures, although it did not allege that the structures together constituted a single business or residential plant.

From the findings of fact by the auditor it appears that the work which was done by the appellee under his contract in this case was in substance that of new construction after a fire. A comparatively small part of the work, if standing by itself, would properly have been classed as repairs; but the auditor treated this part of the work as having been merged in the whole work of construction. He says that “the repair work to the houses standing alone would be repairs, but in this case they must be taken in conjunction with the whole work, because the contract really was to reconstruct the plant and buildings, and the work, both the new and the repairs, consisted of actually rebuilding the plant and buildings. All of the work, therefore, is to be considered as new work.” This conclusion seems to us to be sound, and is in line with the main purpose of the mechanics’ lien law, as set forth in the Act of June 4,1901, P. L. 431. Turning to section 2, we find that a lien is authorized for “erection and construction,” and also for “alteration and repair.” And in section 3, it is provided that “a substantial addition to a structure or other improvement shall be treated as a new erection or construction thereof.”

The court below agreed with the auditor that the work which the claimant described as repairs, really constituted a part of the construction of the plant as an entirety. We have, then, the finding of the auditor that this is a case of erection and construction, which finding is expressly approved by the court below, and we see nothing in the evidence which would justify us in disturbing this finding.

Nor are we convinced that there is any substantial merit in the second objection raised by counsel for appellant, that the claim does not aver that the several structures against which it is filed form but a single plant. Undoubtedly it would have been better practice to have plainly set out this fact in the claim; for that the several structures were all intended to form a single plant, appears from the express finding of the auditor. We agree with the court below that it was essentially a matter of proof as to whether or not the buildings constituted a single plant. Here again we may remark that it would certainly be better practice in such a case to aver clearly, in the claim, that the buildings were intended to form one plant, and that in fact they do constitute such a plant. But we do not find anything in the act of assembly which makes such an averment in the claim essential or which requires us to hold that its omission invalidates the claim.

The assignments of error are overruled, and the decree of the court below is affirmed.


author: Per Curiam,

text:
    Eshleman, Appellant, v. Parkesburg Iron Company.

      Deeds — Recording acts — Notice—Duty of inquiry — Diversion of water — Waters—Easement.
    Where a person purchases land through which runs a stream with full notice of the existence of a dam on the land of an upper riparian owner, which diverted the waters of the stream, it is his duty to inquire as to the source of the right to divert the water, and if he failed to make such inquiry, when by reason thereof he could have learned that the right existed by an unrecorded agreement between the upper riparian owner and a person who owned both tracts at the date of the unrecorded agreement, he cannot maintain an action of trespass against the upper riparian owner for the diversion of the waters of the stream.
    Argued Feb. 6, 1912.
    Appeal, No. 141, Jan. T., 1911, by plaintiff from judgment of C. P. Chester Co., Aug. T., 1910, No. 92, on verdict for defendant in case of John L. Esbleman v. The Parkesburg Iron Company.
    Before Fell, C. J., Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Trespass to recover damages for diversion of the water of a stream.
    At the trial the court gave binding instructions for defendant, and the jury rendered a verdict for the defendant.
    On a rule for a new trial Hemphill, P. J., filed the following opinion:
    The plaintiff seeks a new trial because of binding instructions given the jury to render a verdict in favor of defendant — alleging sucb instructions erroneous.
    No relevant or material facts are in dispute. The lands (a large tract in tbe borough of Parkesburg) and stream out of which this controversy arises, were originally owned by Samuel D. Parke, who on December 11, 1889, entered into a written agreement with Horace A. Beale, representing the defendant company for the sale of “a certain plot of ground and water rights” therein described. This agreement has never been recorded.
    By deed dated July 11,1890, and recorded September B. 1890, Samuel I). Parke conveyed to A. H. Potts, plaintiff’s predecessor in title, a lot or plot of ground, through which said stream flows, and which plaintiff alleges is injured by depletion of same by defendant company, and is the cause of this action.
    On September 11, 1890, the said Parke in pursuance of his agreement of December 11, 1889, with defendant conveyed by deed the plot of ground and water rights therein described.
    On August 20, 1891, W. J. Latta and wife, by deed conveyed to the defendant company a tract of land (originally part of the Parke tract) on said stream and higher up on same, than the lots of plaintiff and defendant above referred to.
    Upon this tract, the defendant erected a dam and intake, laid its pipes, partly along Church street in said borough and into defendant’s property; and early in 1893 diverted the water to its works, where it has made use of the same ever since; returning it to its original channel below plaintiff’s lot.
    Dr. T. Prank Windle purchased the Potts tract April 4, 1910, and conveyed a one-third (1-3) interest in the same to plaintiff May 7,1910.
    The creation of this easement and its use, was a matter of general knowledge among the citizens, for the dam and intake are plainly visible from one of the most public and traveled streets of the town; and it is undisputed that the plaintiff, his co-tenants and all their predecessors in title had full knowledge of its existence and use; but the plaintiff had no knowledge of how or by what authority it had been created, nor did he make inquiry or endeavor to ascertain.
    The dam, intake and diversion of the stream being open, plain and visible to every passer-by; and plaintiff moreover having had actual knowledge of its existence and continuance for many years, should have made inquiry as to when and how the easement was created and its extent and not having done so, took his lot subject to the burdens it imposed.
    “The law on this subject is settled beyond question,” says Justice Mitchell in Grace M. E. Church v. Dobbins, 153 Pa. 294, “Where an owner of land subjects part of it to an open, visible, permanent and continuous servitude or easement in favor of another part and then aliens either, the purchaser takes subject to the burden or the benefit as the case may be.”
    See also Manbeck v. Jones, 190 Pa. 171, and Liquid Carbonic Co. v. Wallace, 219 Pa. 458.
    The plaintiff, however, contends that this rule is not applicable to him because he discovered in the chain of his record title, the deed of September 11, 1890, from Samuel D. Parke to defendant, conveying with a lot of ground the water right in question, and that further examination and inquiry was therefore unnecessary.
    But that deed also disclosed to the plaintiff the fact, that the easement on the Potts tract could not have originated from or been created by that conveyance, because it had been aliened by deed to Potts on July 11, 1890, recorded September 5,1890.
    It therefore behooved the plaintiff to make further inquiry to learn by what right, if any, his (the Potts) tract became or was made subject to the servitude that he saw and knew and had been exercised over and upon it continuously-for very many years. Had he made such inquiry of either the common grantor or defendant he would have learned of the agreement of December 11, 1889.
    Having failed or neglected so to do he comes within the ruling of the Supreme Court above referred to and took his land cum onere.
    , The rule must therefore be dismissed.

      Error assigned, was in giving binding instructions for defendant.

      J. Frank E. House, for appellant.
    There was no duty of inquiry: Woods v. Farmere, 7 Watts 382; Plumer v. Robertson, 6 S. & R. 179; Dickinson v. Beyer, 87 Pa. 274; Lance v. Gorman, 136 Pa. 200; Piro v. Shipley, 211 Pa. 36.

      A. M. Holding, with him A. T. Parke and Alfred P. Reid, for appellee.
    The taking of water in this case was open, notorious, and visible to and was known by the plaintiff appellant at the time of his purchase of the land through which the stream flowed, and had been for years. It was not consistent with any record in the line of the appellant’s title, or with anything he saw or knew of upon the record at or before the time of his purchase. Notwithstanding, he made no inquiry whatever as to the defendant’s right therein or title thereto, and he is therefore bound by what he could have learned had he made such inquiry; and, had he made such, he would have learned that defendant’s title ante-dated and was therefore superior to the title of Potts, his predecessor in title: Ives v. Cress, 5 Pa. 118; Stewart v. Freeman, 22 Pa. 120; Longwell v. Bentley, 23 Pa. 99; Reed v. Lukens, 44 Pa. 200; Millville Mut. Fire Ins. Co. v. Wilgus, 88 Pa. 107; Elliott v. Insurance Co., 117 Pa. 548; Siter’s App., 26 Pa. 178; Coolbaugh v. Ransberry, 23 Pa. Super. Ct. 97; Whistler v. Hershey, 23 Pa. 333; Hottenstein v. Lerch, 104 Pa. 454; Krider v. Lafferty, 1 Wharton 303; Raritan Water Power Co. v. Veghte, 21 N. J. Eq. 463; Com. v. Calhoun, 184 Pa. 629; Bird v. Smith, 8 Watts 434; Logan v. Neill, 128 Pa. 457; Grace M. E. Church v. Dobbins, 153 Pa. 294; Manbeck v. Jones, 190 Pa. 171; Liquid Carbonic Co. v. Wallace, 219 Pa. 457.
    All the cases agree that the possession or use must be consistent with what is found upon the record: Randall
      v. Silverthorn, 4 Pa. 173; Anderson v. Brinser, 129 Pa. 376.
    March 18, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the common pleas discharging the rule for a new trial.


author: Mr. Justice Elkin,

text:
    Pressy v. McCornack, Appellant.

      Contract — Building contracts — Substantial performance — Province of court and jury.

    1. Where a party acting honestly, and intending to fulfill his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party -will not be permitted to enjoy the fruits of such imperfect performance without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered.
    2. There must in every case be substantial performance of the contract, and unless there be substantial compliance, there can be no recovery; but, whether there has been substantial performance, depends upon the character of the changes or alterations complained of, whether they materially affect the completed structure and were in good faith honestly intended, to fulfill the contract. Whether the party acted in good faith,'and whether the departures were material are generally questions for the jury. This is always true if the facts relating to the good faith of the plaintiff and the materiality of the changes or alterations are in dispute.
    3. In an action to recover a balance on a building contract where there is evidence, although disputed, that the owner had authorized the contractor to lower the elevation of houses which were being built under the contract, and as a consequence certain changes in the cellar windows followed as a necessary consequence, the question of substantial compliance is for the jury.
    4. Such a case is also for the jury where an explanation of a failure to provide certain joists of the size specified is consistent with an honest intention to faithfully perform the contract, and the evidence shows that this defect was easily remedied.

      Contract — Building contract — Time limit — Delay.
    5. Where a building contract provides a time limit, but the contractor after the expiration of the time limit, has been permitted to continue the work and receives payment therefor, the owner will be deemed to have waived the provision as to the time limit.
    6. In an action to recover a balance on a building contract, where the owner claims deductions for delay, and the contractor sets up a waiver of the penalty for delay by the owner, the court does not commit reversible error in refusing a point which amounted to binding instructions to make the deduction claimed without reference to whether the owner had made any objection to the delay, or by his conduct, had given the contractor grounds for believing that the penalty for delay would not be enforced.
    Argued Feb. 6, 1912.
    Appeal, No. 180, Jan. T., 1911, by defendant from judgment of C. P. Chester Co., Oct. T-, 1908, No- 18, on verdict for plaintiff in case of Sheridan Pressey, to the use of Stacy G-. Glauser and Edwin D. Glauser, trading as Stacy G. Glauser & Son v. Herbert McCornack.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover a balance alleged to be due on a building contract. Before Hemphill, P. J.
    At the trial it appeared that the case turned on whether the contract had or had not been substantially performed.
    Defendant presented these points:
    4. It was proved in this case that the houses in question were 16 inches, or thereabout, lower than the contract required them to be; that one cellar window was wholly omitted from each house, and another cellar window therein was less in size than the contract required, and that no double joists whatever were placed under the first floor; that said omissions and alterations were without consent of McCornack and without excuse; that the same substantial omissions from and alterations of the contract, and the plaintiffs therefore cannot recover any part of the unpaid balance of the contract price in the contract mentioned.

      Answer: That assumes the finding of certain facts that I think, some of them at least, are in question, and which are for the jury to determine, and for that reason I must refuse that point. The questions there raised I think are for the jury and not for the court. [1]
    5. Under all the evidence in this case there can be no recovery of any balance of the contract price agreed upon in the contract between McCornack and Pressey for the construction of the houses in question.
    Answer: That point is also refused. [2]
    8. If the jury find that the eleven houses, or any of them, which were the subject of the contract between Pressey and McCornack, were not completed before December 1, 1906, McCornack is entitled, as against these plaintiffs, to the sum of $12.00 per month for each house not completed by December 1, 1906, for such period as shall have elapsed between December 1, 1906, and the time when said houses, or such of them as were not then completed, were completed, and such sum McCornack could set off against any of the claim of the plaintiffs in this action.
    Answer: That point is refused. [3]
    Verdict and judgment for plaintiff for $2,615.68. Defendant appealed.

      Errors assigned, were (1-3) above instructions quoting them.

      A. M. Holding, for appellant.
    The uncontradicted evidence in this case showed that the contractor wholly, without excuse, departed from the requirements of his contract in four material features, and the defendant was therefore entitled to instructions that no recovery of the balance of the contract price could be had: Bryant v. Stilwell, 24 Pa. 314; Gillespie Tool Co. v. Wilson, 123 Pa. 19; Harris v. Sharples, 202 Pa. 243.
    , The court below erred in refusing to affirm the eighth point of the defendant upon the question of damages for failure to complete the houses, and in failing to give any instructions whatever to the jury upon the question: Lichetti v. Conway, 44 Pa. Super. Ct. 71; Streeper v. Williams, 48 Pa. 450; Clements v. R. R. Co., 132 Pa. 445; Burgoon v. Johnson, 194 Pa. 61; Emery v. Boyle, 200 Pa. 249; Davis v. LaCross Hosp. Assn., 121 Wisconsin 579 (99 N. W. Repr. 351); March v. Allabough, 103 Pa. 335; Small v. Burke, 92 N. Y. App. Div. 338 (86 N. Y. Supp. 1066).

      Thomas W. Pierce, for appellee.
    A plaintiff who has substantially and bona fide complied with the covenants on his part, in a written contract, is not precluded by slight omissions from receiving a fair compensation according to his contract, where the breaches can be paid in damages: Cited Chambers v. Jaynes, 4 Pa. 39; Preston v. Finney, 2 W. & S. 53; Pepper v. Philadelphia, 114 Pa. 96; Snedaker v. Torpey, 41 Pa. Super. Ct. 312.
    Where a building contract provides for a deduction of a stated amount from the contractor’s compensation for each day of delay after a time specified, the owner cannot claim such deduction, where he has made no objection to the delay, and by his conduct has given the contractor grounds for believing, that the provisions of the contract as to the penalty for delay would not be enforced : Coryell v. Bubois Borough, 226 Pa. 103; Philadelphia v. Tripple, 230 Pa. 480.
    March 18, 1912:
   Opinion by

Mr. Justice Elkin,

The primary question for determination is whether the equitable doctrine of substantial performance under the terms of a building contract should be applied to the facts of the present case. The rigid rule as to strict performance may primarily be regarded as the law of Pennsylvania, but in many cases it has been relaxed in favor of the more equitable doctrine. While the cases in which substantial performance was held to apply may be said to be an exception to the rule, the exception is as well established as the rule itself. The doctrine was first announced by the English courts in Boone v. Eyre, 1 H. Black 273, and was adopted by this court as far back as Ligget v. Smith, 3 Watts 331. In Preston v. Finney, 2 W. & S. 53, it was held, in an action upon a written contract to recover for services performed, that failure to perform in slight particulars will not defeat a recovery, if, it appears that the plaintiff acted with a bona fide intention of performing the whole contract, and the other contracting party received the fruits of the work done. Following these cases this court decided in Chambers v. Jaynes, 4 Pa. 39, that a plaintiff who had substantially and bona fide complied with the covenants of a written contract, is not precluded by slight omissions from receiving a fair compensation according to the terms of the contract, if the breaches can be compensated in damages. Mr. Justice Bell in discussing the equitable doctrine of substantial performance in Danville Bridge Co. v. Pomroy, 15 Pa. 151, said: “Where a party, acting honestly, and intending to fulfill his contract, performs it substantially, but fails in some comparatively unimportant particulars, the other party will not be permitted to enjoy the fruits of such imperfect performance without paying a fair compensation according to the contract, receiving a credit for any loss or inconvenience suffered. And, perhaps, it may be asserted, that where a thing is so far perfected as to answer the intended purpose, and it is taken possession of and turned to that purpose by the party for whom it is constructed, no mere imperfection or omission, which does not virtually affect its usefulness, can be interposed to prevent a recovery, subject to a deduction for damages, consequent upon the imperfection complained of.” There has been no departure from the rule stated in- the foregoing cases, indeed, it has been recognized and approved in many subsequent cases. See Pepper v. Philadelphia, 114 Pa. 96; Gallagher v. Sharpless, 134 Pa. 134; Holmes v. Oil Company, 138 Pa. 546; Filbert v. Philadelphia, 181 Pa. 530. While the rule must be regarded as settled, it is often difficult to determine, whether under the facts of a particular case, it should be applied.

There must in every case be substantial performance of the contract, and unless there be substantial compliance, there can be no recovery; but, whether there has been substantial performance, depends upon the character of the changes or alterations complained of, that is to say, do they materially affect the completed structure and were they in good faith honestly intended to fulfill the contract. Whether the party acted in good faith, and whether the departures were material are generally questions for the jury: Truesdale v. Watts, 12 Pa. 73; Pallman v. Smith, 135 Pa. 188; Cosgrove v. Cummings, 190 Pa. 525. This is always true if the facts relating to the good faith of the plaintiff and the materiality of the changes or alterations are in dispute. On the other hand, if the undisputed testimony shows a substantial variance, not authorized by the owner, and made without his knowledge or assent, it is the duty of the court to so declare as a matter of law: Harris v. Sharples, 202 Pa. 243. In the present case the facts are disputed, and, in our opinion, the learned court below committed no error in submitting to the jury the questions upon which the rights of the parties depend. Under the evidence it was a fair question whether the appellant had authorized the contractor to lower the elevation of the houses so as to better suit the contour of the ground upon which they were located. We must assume that the jury found this fact in favor of the contractor, and if this change was authorized, or assented to, the changes in the cellar windows, followed as a necessary consequence. The explanation of the failure to provide certain joists of the size specified is consistent with an honest intention to faithfully perform the contract and the evidence shows that this defect was easily remedied. On all these questions the case was for the jury. It was submitted by the learned trial judge in a charge free from just criticism, at least so far as the question of substantial performance was involved.

The third assignment raises a different question. It is contended that the learned trial judge committed reversible error in refusing to affirm the eighth point of the defendant upon the question of damages for failure to complete the houses at the time specified in the contract, and in failing to give any instructions to the jury upon this question. We cannot agree that the point should have been affirmed as submitted, because it assumed as a fact, that appellant had neither expressly, nor impliedly, by his acts waived this provision of the contract, and that the contractor had no justification for the delay in completing the houses. The point amounted to binding instructions to make the deductions claimed without reference to whether the owner had made any objection to the delay, or by his conduct, had given the contractor grounds for believing that, the penalty for delay would not be enforced. It was held as late as Philadelphia v. Tripple, 230 Pa. 480, that where a building contract provides a time limit, but the contractor after the expiration of the time limit has been permitted to continue the work, and receives payment therefor, the owner will be deemed to have waived the nrovision as to the time limit. To the same effect is Coryell v. Dubois Borough, 226 Pa. 103. It would have been better practice to have submitted this question to the jury, under proper instructions by the court, but the trial judge in the case at bar was not bound to affirm a point which did not fully and correctly state the law under the facts. The evidence shows that six different payments were made on account from December 7, 1906, to February 1, 1908. All of these payments were made after the time limit had expired, and there is no evidence to show that appellant made any objection to the delay. Under these circumstances an affirmance of the point in question would not have correctly stated the law.

Assignments of error overruled and judgment affirmed.


text:
    Newman v. Shreve, Appellant.

      Equity — Findings of fact — Negligence—Mistake—Trust and trustees.

    1. The findings of fact by a chancellor that a trust estate had been subjected to great loss by the negligent act of the trustee, if based upon sufficient evidence, will not be reversed by the appellate court if there is no palpable error.
    2. When the facts to be found depend upon conflicting testimony, it is the duty of the chancellor, as it is of a jury to give due consideration to all of it, to reconcile it, if possible, and with an open mind make findings based upon the weight of it.
    3. Where a bill in equity is filed against a trustee for an ac- ■ counting of moneys lost through an improper sale of real estate, and other parties are joined as defendants who appear and answer, and it appears that all of the defendants are interested in the property sold or the proceeds thereof, the court in entering a decree against the trustee may also enter a decree against the other defendants that they pay certain sums to the trustee, if it appears that they deceived the trustee to his loss.
    Mr. Chief Justice Fell dissents.
    Argued Feb. 6, 1912.
    Appeal. No. 211, Jan. T., 1911, by Benjamin D. Shreve, from decree of C. P. Chester Co., No. 513, in equity in case of John S. Newman, Executor and Trustee of William Keinath, deceased, v. Benjamin D. Shreve, Isaac A. Braddock, Joseph Taylor, St. Albans Realty Company and Sea Haven Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an accounting. See Newman v. Shreve, 229 Pa. 200.

      The court by Butler, J., entered the following decree:
    The bill is dismissed as to the St. Albans Realty Co.
    Benjamin D. Shreve, having received and accounted for $¡15,000 purchase money, is directed to account to the plaintiff for the further sum of $11,319.21, as if he had also received it as purchase money for the trust estate in his hands. But he shall not be required to pay the plaintiff more than enough to cover the amount due on his mortgage and bonds, namely, on the mortgage, $3,-548.19 with interest at six per cent, from June 17th, 1889, less $3,029.69, and on the bonds fourteen one hundred and twenty-fifths of such part of the $11,319.21 as shall remain after the payment of the mortgage and interest.
    Isaac A. Braddock is directed to pay to Benjamn D. Shreve, trustee, the sum of $13,243.75.
    The Sea Haven Company is directed to pay to Benjamin D. Shreve the sum of $2,500, if the same is not paid by Isaac A. Braddock.

      Error assigned, was the decree of the court.

      John G. Johnson, with him Wm. M. Hayes, Alfred P. Reid and J. Carroll Hayes, for appellant..

      William E. McCall, Jr. and J. Franlc E. House, for appellee.
    March 18,1912:
   Opinion by

Mr. Justice Elkin,

This case was here one year ago and will be found reported in Newman v. Shreve, 229 Pa. 200. At that time the decree was reversed and bill reinstated as to all the parties so that upon final hearing such decree could be made as the facts might warrant. At the first trial the court below dismissed the bill as to all the defendants except Shreve, and entered a decree against him without regard to how his legal rights and equities might have been affected by the acts of those associated with Mm in the tiunsaetion about which complaint is made. We held this to be error upon the ground that the parties having entered a general appearance and made a general answer, were within the jurisdiction of the court for every purpose of the case and should have been so treated. The record was remitted for the purpose of affording all the parties an opportunity to introduce additional testimony in support of their respective contentions. At the second trial some additional testimony was introduced and all of the parties were given an opportunity to be heard. In the light of the additional testimony the learned court below in a careful and exhaustive opinion considered all the questions raised and reached the conclusion that appellant as trustee had only collected $15,000 on account of the purchase price of the property which had been actually sold through his agent for $33,000. In this respect the findings of fact at the second trial were the same as at the first. The appeal in the present case is a challenge to the findings and a reversal is asked substantially upon this ground. In such case the findings of fact by a chancellor have the force and effect of a verdict and will never be reversed in an appellate court except for manifest error. There are cases in which an appellate court may say, indeed in some instances should say, that the evidence even if believed is not sufficient to warrant the conclusion reached, but in such instances, the sufficiency and not the weight of the evidence is the controlling factor. Where the facts to be found depend upon conflicting testimony, it is the duty of a chancellor, as it is of a jury, to give due consideration to all of it, to reconcile it if possible, and with an open mind make findings based upon the weight of it. This duty has been performed by the learned court below with the result above indicated. Unless we can say here that there was palpable error in the findings of fact, under the rule of all our cases, the decree must be affirmed. The learned counsel for appellant appreciate the weight of the burden wMch the rule easts upon them, and have undertaken to meet it by pointing to the evidence upon which they rely to show that a different conclusion should have been reached. This has made a careful examination of the testimony necessary. We find it very conflicting about material facts and we can understand how different minds might reach different conclusions after giving full consideration to all of it, but we cannot say that the court below should be convicted of palpable error in finding as it did. There was evidence, if belieyed, to warrant the findings and the chancellor evidently believed the witnesses who testified to the facts upon which the findings are based. The credibility of witnesses is for the jury, or for the chancellor, as the case may be, and we know of no case in which there was a reversal upon the ground that the testimony of certain witnesses should not have been believed. That a serious mistake was made by someone connected with the sale of the property in question here must be conceded, and as a result of that mistake a heavy burden is cast upon appellant, but under the facts found by the court below there is no escape from the liability to account for the proceeds of the trust estate which should have come into the hands of the trustee.

The decree requires Braddock and the Sea Haven Co. to pay certain sums to appellant and this is in accordance with the views expressed in our former opinion. The decree in these respects should be enforced in relief of appellant who has been made to suffer by misplaced confidence in his agent, or by being deceived by those whom he trusted.

Decree affirmed, costs to be paid out of the trust estate.

Fell, C. J., dissents.


text:
    Hibberd v. Edwards, Appellant.

      Deed — Building restriction — Offensive purpose or occupation— Public garage.

    A building restriction in a deed which forbids the erection upon the land of “any tavern, drinking saloon, steam mill, tannery, slaughter-house, skin-dressing establishment, glue, soap, candle or starch factory, or other building for offensive purpose or occupation,” is broad enough to include a public garage for the hire, storage and repair of automobiles and the furnishing of such supplies as they may need.
    Argued Feb. 6, 1912.
    Appeal, No. 257, Jan. T., 1911, by defendant from decree of C. P. Chester Co., No. 546, in equity in case of Joshua E. Hibberd et al. v. Ralph Edwards.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Hemphill, P. J., filed the following opinion:
    FINDINGS OF FACT.
    The defendant, who is now the lessee of a small garage located on the Lancaster pike in the village of Paoli about one hundred feet west of where the Valley road crosses said pike, has purchased an “L” shaped lot with a frontage of fifty feet on the Lancaster pike, by one hundred and eighty feet deep, and of ten feet frontage on the Valley road; that on the pike being about one hundred and seventeen feet west of said road; and proposes and has commenced the erection of a large (46 ft. x 70 ft.) garage, with over six times the capacity of the one he now occupies.
    In the proposed, as in the present, garage the defendant intends to conduct a business for the hire, storage and repair of automobiles, and furnishing of such supplies as they may need, and as the automobile travel along the pike is large, and especially so on Saturday afternoons and Sundays, will bring many to his garage for repairs, and for gasoline, oil and other supplies. The stopping and starting of these machines is attended with more or less noise, depending upon the care and skill of the chauffeur, and [some of the repairs are necessarily attended with considerable noise, in the testing of the engines and in obtaining what is called the proper mixture, the latter causing loud explosions.
    The conduct of the business is also attended with more or less smoke and unpleasant odors.]
    [All of the witnesses, excepting two or perhaps three of the defendant’s, testified that there were such noises, smoke and odor emitted from defendant’s present garage, differing only as to the degree of offensiveness and the distance of the surroundings affected or that they reached.
    The noises and odors while not continuous or permanent are frequent, excepting at night and on Sundays, when defendant limits his business to what he calls emergency work and the furnishing of supplies.]
    [The noises are variously described as “a series of rapid explosions” — “noise of running machinery and pounding and banging”- — “the gas engine exploding and snapping and cracking” — “frequent explosions * * * like a heavy cannon cracker,” etc., and the odor as “smoke of the burning gasoline with oil smells more or less quite offensively — ”
    “Sometimes there is a heavy smoke” — “The odor of gasoline” — “a great deal of odor” — “a great deal of smoke,” etc.]
    The defendant, however, claims that these objectionable features of his business will be put an end to or minimized in the new and enlarged garage, because he will then be able to do all his work in an enclosed building, instead as now much of it outside, excepting in the summer time, when it will be necessary to have the large doors (front and back) and the widows open.
    But it is in summer, when houses are thrown open, and porches and grounds more used, that residents are and will be most annoyed and the enjoyment of tbeir homes interfered with, than at any other season of the year.
    Messrs. Hibberd, Sinnickson, Shunk, Matthews, Glisson, Harry Davis and Hogue, witnesses called by the plaintiffs, all reside in close proximity to the present garage and about the same distance from the lot upon which defendant proposes to erect the new one; and testify from actual personal knowledge and experience, and agree that the noise and odors emitted from the present garage is offensive and disagreeable and interferes with the comfort and ejoyment of their homes.
    On the other hand, Messrs. McAllister and Miller, called by defendant — the former living in the garage building and the latter in the fire engine house, near by, — both testified that they did not consider the noise and odors emanating from the garage offensive.
    The remaining witnesses for both plaintiff and defendant, who testified on this subject, spoke not from actual knowledge and experience, but from observations made when passing or casually visiting the garage, and from their acquantance with the construction, care and operation of automobiles — giving what is sometimes called — judgment or opinion evidence.
    [The weight of the testimony, however, so strongly substantiates the contention of the plaintiffs, that we have no doubt that the present garage is and the proposed would be offensive, and mar the comfort and enjoyment of those homes located in the immediate vicinity — and we so find.]
    Now the properties owned or occupied by the plaintiffs and defendant were originally a part of a large tract of 348 acres of land owned by the Paoli Heights Land Company and were conveyed to the present owners under and subject, inter alia, to like conditions, and restrictions as set forth in the deed to the defendant, to wit:
    “And the said Ralph Edwards, his heirs and assigns, owners and occupiers of the said tract of ground, shall not at any time hereafter, erect or build or cause, suffer or permit to be erected or built, upon the hereby granted tract of land, or any part thereof any tavern, drinking saloon, steam mill, tannery, slaughter house, skin dressing establishment, glue, soap, candle or starch factory, or other building for onensive purpose or occupation ; nor cause, suffer or permit any building erected on said tract of land to be converted into a tavern, drinking saloon, steam mill, tannery, slaughter house, skin dressing establishment, glue, soap, candle or starch manuactory, or used for any offensive purpose or occupation hereafter forever.”
    When J. Roberts Foulke, defendant’s grantor, learned that opposition to the erection of a garage had developed, and it was claimed would be a violation of the above restriction, he offered Mr. Edwards to take back the lot and refund to him the purchase money — and is still willing to do so.
    CONCLUSIONS OB' LAW.
    The restriction above quoted is not a residential restriction — limiting the property to residential uses, nor is it intended to be, but to guard and protect residences and inoffensive business places from the annoyance, discomfort and inconvenience of offensive establishments, such as are enumerated and others of like character. And in applying the restriction to trades, occupations and establishments other than those specifically prohibited must be given a reasonable and fair construction.
    If the noise and odors were slight and infrequent and such as would only annoy and disturb a supersensative or highly nervous person it would be unfair to hold that the business or occupation came within the restriction; while on the other hand it would be equally unfair to hold that it was only applicable when they reached that degree that would annoy and disturb persons accustomed to noise and unpleasant odors by reason of tbeir occupation or business.
    The test should be the effect upon the normal and rational man.
    [Exclusive of the taverns and drinking saloons, the remaining enumerated occupations or businesses may be divided into two classes, the noisy and the malodorous and both are designated as offensive.]
    [Now from the great preponderance of the testimony it seems clear to us, that a garage is of necessity, both noisy and malodorous, not to the same degree or extent as some of the specifically prohibited occupations, but sufficient to annoy and disturb the witnesses of the plaintiffs, apparently normal and rational men, in the quiet and comfortable enjoyment of their homes.]
    The law as to what constitutes a noisy nuisance was carefully considered and received by Judge Thayer (and his opinion was adopted by the Supreme Court) in Ladies’ Decorative Art Club’s App., 22 W. N. C. 75, and in that opinion cites approving the language of Sir George Jessel, Master of the Bolls, in Broder v. Saillard (L. B. 2 Ch. Div. 692) : “If there were no authority on the question, I should have felt no difficulty about it, because, I take it the law is this, that a man is entitled to the comfortable enjoyment of his dwelling house. If his neighbor make such a noise as to interfere with the ordinary use and enjoyment of his dwelling house, so as to cause serious annoyance and disturbance, the occupier of the dwelling house is entitled to be protected from it. It is no answer to say that the defendant is only making a reasonable use of his property, because there are many trades and many occupations which are not only reasonable but necessary to be followed, and which still cannot be allowed in the proximity of dwelling houses, so as to interfere with the comfort of their inhabitants.”
    Entertaining the views above expressed [we must order and direct that the preliminary injunction be made perpetual as prayed for in plaintiffs’ bill, and that the defendant pay costs.]

      Errors assigned were various findings of fact and law and decree making preliminary injunction perpetual.

      B. Mason Lisle and Gheen & Parke, for appellant.
    The garage in question is not a nuisance per se: Richards’ Appeal, 57 Pa. 105; Rhodes, v. Dunbar, 57 Pa. 274; Huckenstine’s Appeal, 70 Pa. 102; Dilworth’s Appeal, 91 Pa. 247; Robb v. Carnegie, 145 Pa. 324; Sullivan v. Steel Co., 208 Pa. 540.
    The garage is not within the restriction: Orne v. Fridenberg, 143 Pa. 487; Landell v. Hamilton, 175 Pa. 327; Sayers v. Collyer, L. R. 24 Ch. Div. 180.

      A. M. Holding, with him D. P. Hibberd, for appellees.
    It is not in the power of any owner of a servient lot to violate the restriction, without the consent of the owners of the dominant lots: Hansell v. Downing, 17 Pa. Super. Ct. 235.
    If the contemplated business of the appellant is a violation of the covenants mentioned, then equity will restrain him: Yeaton’s Appeal, 105 Pa. 125; St. Andrew Church’s Appeal, 67 Pa. 512; Hansell v. Downing, 17 Pa. Super. Ct. 235; Ogontz Land & Imp. Co. v. Johnson, 168 Pa. 178; Gatzmer v. St. Vincent School Society, 147 Pa. 313; Landell v. Hamilton, 175 Pa. 327; Rowland v. Miller, 139 N. Y. 93 (34 N. E. Repr. 765); St. Andrew Church’s App., 67 Pa. 512; Evans v. Foss, 194 Mass. 513 (80 N. E. Repr. 587).
    March 18, 1912:
   Per Curiam,

The decree is affirmed on the findings of facts and conclusions of law by Judge Hemphill.


text:
    Matthaei, Appellant, v. Pownall.

      Equity — Setting aside deed — Confidential relation — Physician —Fraud—Responsive answer.

    1. The relation of a physician to his patient is one of trust and confidence, and while such relation does not per se forbid the acceptance of a gift or conveyance by him from his patient, the burden is on the physician to prove that such a gift or conveyance was fairly and honestly obtained, and that the transaction was above suspicion.
    2. Where a conveyance of the greater part of the grantor’s estate was made to one occupying a confidential relation towards him, it is not necessary that actual fraud should appear in order that the conveyance may be set aside.
    3. In a suit in equity by the heirs of a deceased grantor against the grantee, a physician, to have the conveyance set aside, the evidence showed that the defendant was a near neighbor, friend and attending physician of the grantor who reposed great confidence in him. On the day before the grant the defendant wrote to the grantee who lived in a boarding house kept by a woman over eighty years of age and’ several miles from his relatives, deprecating a sale of a hundred acre farm which was four-fifths of the grantor’s whole estate and worth about $8,000. In this letter the grantee conveyed to the grantor’s mind a value of the farm much below its real worth, and promised that if the farm was deeded to the grantee that he would not only pay the sum of $400 per year, but would obligate himself not to dispose of the property until the grantor was satisfied that he would be secure in his income, and that he would give the latter free professional services, and cheerfully administer to his wants and comforts during life. The written contract accompanying the deed and executed by the grantor did not contain the last two stipulations, and the grantee did not explain their omission. Nor did it appear that the grantee had been advised of his rights, or that the deed and contract had been explained to him, or that it had been suggested to him that he should have the counsel of an attorney. The evidence was sufficient to sustain the grantor’s mental capacity to understand what he was doing, and it also appeared that he had offered the farm to others on practically the same conditions that he had conveyed it to the defendant. Held, (1) that the undisputed facts constituted a constructive fraud, which the defendant had failed to overcome by any sufficient evidence; and (2) that a decree should have been entered setting aside the conveyance.
    4. The rule that a responsive answer must be overcome by two witnesses, etc., has no application to a ease in which the denial goes only to the legal effect of the essential facts and not to their existence.
    Argued Feb. 7,1912.
    Appeal, No. 18, Jan. T., 1912, by plaintiff from decree of C. P. Bucks Co., Oct. T., 1910, No. 3, on bill in equity in case of John B. Matthaei et al. v. Elmer E. Pownall.
    Before Fell, C. J., Mestrezat, Piotter, Elkin and Moschzisker, JJ.
    Reversed.
    Bill in equity to set aside a deed. Before Staples, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, amongst others, was decree dismissing the bill.

      Owen J. Roberts, with him Isaac J. Vanartsdalen, for appellant.
    The burden is upon the defendant to prove the righteousness of the bargain: Unruh v. Lukens, 166 Pa. 324; Adam’s Est., 220 Pa. 531; Miskey’s App., 107 Pa. 611; Worrall’s App., 110 Pa. 349; Armor’s Est:, 154 Pa. 517; Wilson v. Mitchell, 101 Pa. 495; Stepp v. Frampton, 179 Pa. 284.
    The consideration was inadequate: Springer’s App. 111 Pa. 228; Tetlow v. Rust, 227 Pa. 292.
    Similar offers made by Matthaei to other parties do not justify this transaction.
    Defendant did not refer Matthei to counsel or business adviser: Darlington’s Estate, 147 Pa. 624; Sarver v. Sarver, 230 Pa. 60.
    The rule requiring two witnesses to overcome the answer does not apply in this case.

      Harman Yerkes, with him Henry A.. James, for appellee.
    This court, by a long series of decisions, has held that the findings of a court of equity under the new equity rules, like the findings of a master under the old practice will not be set aside on appeal if they appear to have been warranted by the evidence, or if there is sufficient evidence to sustain them: Hale & Kilburn Manufacturing Co. v. Norcross, 199 Pa. 283; Steinmeyer v. Seibert, 190 Pa. 471; Barlott v. Forney, 187 Pa. 301; Stockett v. Ryan, 176 Pa. 71.
    The presumption is in favor of the validity of the. deed and the evidence to overcome it does not appear either through the witnesses or the findings of the court: Crothers v. Crothers, 149 Pa. 201; Audenreid’s App., 89 Pa. 114; Real Est. Title Ins. & Trust Co. v. Maguire, 17 Montgomery County 25; Eckert v. Flowry, 43 Pa. 46; Doran v. McConlogue, 150 Pa. 98; Krider v. Krider, 17 Montgomery County 9; Campbell v. Brown, 183 Pa. 112.
    March 18, 1912:
   Opinion by

Me. Justice Moschziskee,

On December 27, 1906, Charles Matthaei, a man seventy-six years old, conveyed in fee-simple to the defendant, Dr. Pownall, who had been for some time his attending physician and medical adviser, a 100-acre farm, which the court found was then worth seven to eight thousand dollars. The consideration mentioned in the deed was seventy-five hundred dollars, but no part of that sum was paid or intended to be paid by the grantee, —the actual consideration being a contemporaneous written contract whereby the grantee agreed to pay Matthaei $400 a year in quarterly payments during the remainder of his life. On December 26, 1906, Dr. Pownall wrote a letter to Matthaei in which he referred to the difficulty of getting farm-work done, and stated that he had been informed the farm in question would not bring over $40 or $50 an acre, and that he thought there was little prospect of getting $80 an acre; he reminded Matthaei that in an effort to sell he would be put to the expense of advertising, and even if he was successful, that he would have the risk of investing the proceeds. Dr. Pownall makes a passing reference in the letter to what he terms an agreeable offer made by Matthaei to him, adding, “I am willing to accept your offer by obligating myself, my heirs and assigns, to pay you $100 every 3 months as long as you live and not to sell the farm until I have satisfied you that you will be secured in your income. I will also promise to give you free professional care so long as you are within the limits of my practice, and will cheerfully administer to your wants and comforts____If you need extra money I will feel obligated to give it...... If you think favorably of the proposition, let us get it fixed up promptly......” The next day Dr. Pownall brought the deed and contract to his patient and they were duly executed. Shortly after this the defendant rented the property for $525 per annum, and in February, 1908, he sold it for $8,118; of this, $6,500 remained on mortgage ánd the balance was paid in cash. On November 4,1908, Matthaei died, leaving to survive him as his heirs certain brothers, sisters, and children of deceased sisters. These heirs filed the present bill against Dr. Pownall upon the theory that the conveyance had been secured by fraud, praying that the mortgage held by him should be assigned to them and that he should be decreed to account for the cash consideration paid him in the sale of the property, and for all income therefrom.

The letter from Dr. Pownall to Matthaei speaks for itself, and the answer filed admits the other actual facts essential to the plaintiff’s case; in it the defendant frankly states that “it may have been true that Matthaei spoke to me in relation to disposing of said farm for the reason that I was his physician and friend and he had confidence in me;” but he denies that Matthaei was at all enfeebled in mind or body, or that he had been influenced, deceived or defrauded in any way or manner whatsoever into the execution of the conveyance in question. When the case came on for hearing the chancellor found the material facts as we have stated them, but he further found that Matthaei had sufficient mental capacity to understand what he was doing, that he had offered the farm to others on practically the same conditions that he had conveyed it to the defendant, and that in making the conveyance he acted on his own desires.

The court below correctly concluded that the defendant, by reason of his position of attending physician occupied a confidential relation toward Matthaei, which was strengthened by “the close personal relationship between the two men;” that Dr. Pownall “in his letter of December 26, 1906, assumed a high moral ground that would naturally lead Matthaei to repose trust and confidence in the defendant’s fairness and desire to do right;” that the parties by reason of their confidential relationship “did not deal at arm’s length;” that the consideration paid for the property was “wholly inadequate inasmuch as it represented only 5 per cent, annually of the fair market value of the farm; and also in view of the old age of the said Matthaei and the certainty of his death within a short period;” that the confidential relationship between the parties and the inadequacy of consideration threw “the burden upon the defendant of showing that the agreement of December 27, 1906, was fair, conscionable and proper beyond a taint of suspicion of fraud, undue influence or overreaching on the part of the defendant;” and that the fact that Matthaei “may have offered his farm to other parties upon similar terms does not absolve the defendant from the duty of showing that this contract was fairly and properly entered into.” After thus correctly stating the law, the learned court below reached the final conclusion that, since Matthaei was in possession of all his faculties and knew what he was doing, there was “no presumption from all the evidence in the case that would warrant a finding that the conveyance was obtained by fraud,” stating, “We are averse to assenting to the proposition that because a man has been a friend of the grantor for a number of years and acted in a professional capacity, that therefore it must be assumed that he exercised undue influence upon the grantor to obtain a grant of land,” and dismissed the bill; in this there was error.

Before we refer to the controlling principles of law, it is to be noted that the grant to Dr. Pownall involved four-fifths of Matthaei’s entire estate; that the defendant was the near neighbor, close personal friend and attending physician of the grantor who reposed great confidence in him; that the day before the grant the defendant wrote to Matthaei, who lived in a boarding-house kept by a woman over eighty years of age and several miles from his relatives, deprecating a sale or attempt to sell his property, conveying to his mind a value much below its real worth, and promising, if the farm was deeded to him, Pownall, that he would not only pay the sum of $400 per year, but would obligate himself not to dispose of the property until Matthaei was satisfied that he would be secure in his income, and that he would give the latter free professional services and cheerfully administer to his wants and comforts during life. It is further to be noted that the contract, as actually executed, contained neither of the last two stipulations, but left the defendant free to dispose of the property and put the money in his pocket without any security to Matthaei whatever; that the defendant failed in his answer and proofs to give any explanation of these material omissions, to claim or show that Matthaei had understood or assented to the same, that he had been advised of his rights, that the papers as executed had been explained to him, or that it had been suggested to him in any manner that he should have the counsel of an attorney or other adviser in this transfer to his friend, neighbor and physician, of the greater part of his small estate.

30 Cyc. at page 1570, states, “the relation of the physician to his patient is one of trust and confidence, and while such relation does not per se forbid the acceptance of a gift or conveyance by him from his patient, the burden is on the physician to prove that such gift or conveyance was fairly and honestly obtained and that the transaction was above suspicion.” This is a correct statement of the law: Unruh v. Lukens, 166 Pa. 324. In Darlington’s Estate, 147 Pa. 624, at page 629, we said that, “The confidential relation is not confined to any specific association of the parties to it...... It embraces......physician and patient, and generally, all persons who are in any relation of trust and confidence. When the relation exists the consequent duties and obligations are perfectly well established by long settled law;” at page 632, “A confidential adviser is not permitted to avail himself either of the necessities of his client or his good nature, liberality or credulity, to obtain undue...... bargains......;” and at page 633, the burden of establishing perfect fairness, adequacy and equity is thrown upon the confidential adviser and “if no such proof is established, courts of equity treat the case as one of constructive fraud.”

In a case like the present, where a conveyance of the greater part of the grantor’s estate was made to one l occupying a confidential relation toward him, it is not 1 necessary that actual fraud should appear. As early as 1850, in discussing this subject in Greenfield’s Estate, 14 Pa. 489, at page 505, we said that the evidence did not “justify a charge of actual fraud...... But in spite of this concession, a rule of public policy and pure morals founded in long experience of the human heart and knowledge of man’s cupidity, interposes....... The case represents what is called a constructive fraud, springing from the confidential relations existing between the parties. This peculiarity, withdrawing it from the operation of ordinary rules, throws upon the beneficiaries the duty of showing expressly that the arrangement was fair and conscientious, beyond the reach of suspicion. In requiring this, courts of equity act irrespective of any admixture of deceit, imposition, overreaching or other positive fraud. As it has often been said, the principle stands independently of such elements of active mischief. It is founded upon a motive of general policy, and is designed to protect a party, so far as may be, against his own overweening confidence and self-delusion, the infirmities of a hasty judgment, and even the impulses of a too sanguine temperament.” And in Miskey’s Appeal, 107 Pa. 611, referring to the same general subject, at page 630, by quotation from a noted English case, we said that the question was not whether the grantor “knew what she was doing, had done or proposed to do, but how the intention was produced ; whether all that care and providence was placed round her, as against those who advised her, which from their situation and relation with respect to her they were bound to exert on her behalf.”

Applying these principles to the present case, the undisputed facts constitute a constructive fraud, which the defendant failed to overcome by any sufficient evidence. The fact that Matthaei had no mental weakness, and the further fact that he had suggested to others that he desired to get rid of his farm and was willing to part with it on some such terms as those contained in the contract between Dr. Pownall and himself, were not sufficient to meet the burden cast upon the defendant. That burden could only have been met by clearly showing that the value of the grantor’s property and the inadequacy of the bargain he was making had been honestly brought home to him, or that he had been given the opportunity of independent advice; and in this particular case the departure in the contract as actually made from the terms suggested in the defendant’s letter should have been explained, in order properly to sustain the bona fidés of the transaction; none of these things wasi done, however. On the contrary, it was shown that not even the witnesses to the documents knew their nature, and that the only attorney present was the one acting for the defendant. As we said in Darlington’s Estate, supra, at page 635, such transactions are not condemned because of mental incapacity on the part of the grantor or proof of actual fraud, but because of the absence of that full and satisfactory proof that the contract in question was the free and intelligent act of the party, fully explained to him, and done with a thorough knowledge of the bargain and all its consequences.

The rule that a responsive answer must be overcome by two witnesses, etc., has no application to a case like this where the denial goes only to the legal effect of the essential facts and not to their existence: Everhart’s Appeal, 106 Pa. 349, 354. The burden was upon the defendant to explain fully the transaction complained of in such a manner as to demonstrate its bona fides; if Matthaei were alive to-day and were the complainant, on the record as presented it cannot be doubted that a chancellor would grant him the relief prayed for; the present complainants have the samé right. While the defendant should pay the costs, he should be allowed all the moneys properly expended by him upon the* property and the sum of the payments made to Matthaei under the contract.

It is not necessary specifically to pass upon all the assignments of error. The last two which go to the dismissal of the bill are sustained, the decree is reversed, the bill is reinstated, and the record is remitted to the court below with directions to enter a decree in accordance with the views expressed in this opinion.