text:
    Miller, Appellant, v. James Smith Woolen Machinery Company.

      Contract — Warranty—Breach of warranty — Intention—Burden of proof —Evidence.

    Where in an action to recover the price of a machine built to order and warranted to do a particular work, the defendant sets up a breach of warranty, the burden is upon him to establish the breach. In such a case the defendant is entitled to have his defense submitted to a jury, where he shows by several witnesses that the machine did not do the work it was warranted to do and that it failed to do so by reason of its being constructed upon a wrong principle, rather than because of any defect in its construction.
    Where in such a case plaintiff alleges performance of the contract, he cannot at the trial properly or consistently set up any facts by way of excuse of performance.
    Where a contractor has furnished a machine capable of doing the work which it is warranted to do, the purchaser cannot defeat an action for the recovery of the price of the machine by showing that the contractor in the -letter which set forth the terms of the contract made certain false statements as to his experience in manufacturing machines of the type in question.

      Practice, C. P. — Trial—Charge—Points—Neglect to answer points.

    The refusal of a trial judge to answer specific points presented to him, is not error if it appears that the questions presented by the points were substantially answered in the general charge.
    Argued Jan. 7, 1908.
    Appeal, No. 172, Jan. T., 1907, by appellant, from judgment of O. P. No. 5, Phila. Co., Sept. T., 1903, No. 1,455, on verdict for defendant in case of William Miller et al. v. James Smith Woolen Machinery Company.

    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Assumpsit to recover the price of a machine.
    Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    When Thomas Miller was on the stand the following offer was made:
    Mr. Johnson: I offer to prove by this witness that (the dryer was changed) after it had been erected and constructed in accordance with the contract, ivithout the knowledge or consent and without notice being given to the plaintiff, and that these changes in construction would necessarily make a different machine. Objected to. Objection sustained. [11]
    The plaintiff presented this point:
    1. If the jury find from the evidence that the dryer was constructed, delivered and erected at Cohoes, according to the specifications set out in the proposal, their verdict must be for the plaintiffs. Answer Refused. [1]

      Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (1) above instruction, quoting it; and (11) ruling on evidence, quoting the bill of exceptions.

      A. T. Johnson, with him O. M. Bowman, for appellant,
    cited: Sprout, Waldron & Co. v. Eagal, 193 Pa. 389.

      W. Horace Hepburn, for appellee,
    cited: Derry v. Peek, L. R. 14 App. Cases, 337 ; Hexter v. Bast, 125 Pa. 52 ; Alexander v. Hoffman, 5 W. & S. 382 ; Stewart v. Kelly, 16 Pa. 160 ; Chapman v. Railroad Co., 7 Phila. 204.
    March 2, 1908 :
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit to recover the price of a drying machine erected by plaintiff, in a factory at Cohoes, New York, under a contract with the defendant. The contract was in writing, and was set forth in a letter from the plaintiff to the defendant, dated December 8, 1902. The offer therein contained was accepted in accordance with its terms on December 10, 1902. The letter sets forth that the plaintiff will be pleased to furnish you with one of our latest improved ‘ Twentieth Century Dryers ’ for drying glazed cotton.” Then, after describing the machine in detail, the letter states that “ The machine just described includes everything which our experience has shown necessary for a complete and economical machine for drying glazed cotton, and is complete and ready to run, except the outside steam connections, belting and power, which are not included in this proposition.” It was further specified that “ this proposition is made with the understanding that all work specified shall be performed in good and workmanlike manner; that all material, machinery and supplies herein specified shall be of good and suitable quality, and the work completed as herein specified, provided that The American Drying Machinery Company be not delayed by any person or persons or from any cause not within its control. It is also made with the understanding that should the machinery or -apparatus not do the work herein specified, The American Drying Machinery Company shall remedy all defects therein necessary to secure a full compliance with the terms hereof at its own proper costs.”

Plaintiff averred performance of the contract, admitted the credit of $700 paid on account, and claimed to recover the balance of the contract price with interest. Defendant alleged that the machine erected by the plaintiff wholly failed to do the work for which it was purchased, namely, that of drying glazed cotton ; that it was constructed upon wrong principles and could not be made to do the work intended, and for which it was purchased, and was wholly worthless for that purpose. The question thus became one of fact. It was submitted to the jury, and the result of the trial was a verdict for the defendant.

This appeal is by plaintiff, and the first ten assignments of error are to the refusal by the court below, of ten separate points for charge submitted by counsel for plaintiff. Under these assignments it is argued that the trial judge erred in refusing to charge the jury, first, that the burden of proof was on the defendant to show that the dryer, after a fair test, would not do the work for which it was sold ; and second, that if the jury believed that the machine was not fed with proper material in proper quantities, there was not a fair test, and the verdict should be for the plaintiff.

It is not denied that the burden of establishing the fact that the plaintiff had been guilty of a breach of its warranty was certainly upon the defendant.' This burden was accepted by it, and the case was tried upon that theory. If the first point submitted by plaintiff had requested the court to charge that the burden of proof was upon defendant to show that the machine would not do the work it was warranted to perform, such a point would doubtless have been affirmed ; but, instead of that, counsel for plaintiff asked to have the jury instructed that the burden of proof was upon the defendant to show that the machine would not work as it was “ intended to do.” But as counsel for the appellee say in their argument, this was not the real point involved, for the question is, not what a machine of that construction was intended by its builders to do, but it is whether or not the machine would do the work which it was warranted to do, and for which, under the contract, it was purchased. It appears both from the allegation of the defendant and from, the proof, that the dryer failed to do the work it was Warranted to do, by reason of its being constructed upon a wrong principle, rather than because of any defect in its construction. Defendant’s witness Rosenkrantz testified that it was impossible for the dryer to dry glazed cotton wadding. His emphatic statement was: “You cannot dry glazed cotton wadding with hot air commercially ; it is not done ; it never has been done.” Two other witnesses testified substantially to the same effect. If this testimony was believed by the jury, it would go far to show a breach of warranty.

As to the other points for charge offered by counsel for plaintiff, which were declined by the trial judge, the refusal of which is here assigned for error, they raise the question as to whether plaintiff was prevented from making proper tests of the dryer because of the glazing apparatus or other machinery to which it was attached, not having been properly constructed or properly operated. It appears, however, that in his general charge the trial judge instructed the jury as follows: “If you believe that they furnished a machine which .was fitted for the purpose of drying glazed.cotton wadding, but that it did not have a fair opportunity to do so, on account of the defect of this glazing apparatus, that would not be their fault. If the defendants received what the contract guaranteed, they must pay for it.”' And in his answer to the seventh point of plaintiff, the trial judge also said: “ Of course, if they did erect a dryer fitted for the purpose of drying glazed cotton wadding, and they were prevented from operating it by reason of a defect of the glazing apparatus, or any other defect due to the fault of defendants, why of course the verdict must be for the plaintiffs.” These instructions covered substantially everything that was asked for in the points which were refused. It was therefore not necessary for the trial judge to answer them in detail, even though it be conceded that they were correct propositions of law, and were applicable to the facts of the case.

In Creachen v. Carpet Co., 214 Pa. 15, certain specific points were refused, after the court had in the general charge given substantially the instructions desired. It was held that the refusal in such case was not error. We said there that a “ judgment will not be reversed because a point presented by one of the parties was not answered, if it appears that the question presented by the point was substantially answered in the general charge: Fleming v. Dixon, 194 Pa. 67 and cases there cited.” Nor do we see any error in the sustaining by the court below, of the objection to the offer of evidence upon the part of the plaintiff to pi-ove that after the machine had been erected, some change had been made, without the knowledge or consent of plaintiff. It was not proposed in the offer to show by whom the alleged change had been made, and the witness Miller testified, in answer to questions put to him by the court, that on May 8, when he finally left Cohoes, the machine was, to use his own words, “ in running order so far as my judgment was concerned; so far as any machine I have ever worked on.” This was after the time when, as stated by counsel, the changes were alleged to have been made, and it therefore follows by plaintiff’s own showing, that if any such changes were made, they could not have affected the capacity of the machine to do the work for which it was intended. As a matter of fact, the offer did not aver that the efficiencj'' of the machine for doing its work was impaired by the alleged change, but only that. the change in construction would necessarily make a different machine.”

Another reason which would sustain the ruling of the court, in rejecting this offer, is, as suggested by counsel for appellee, that the plaintiff had alleged performance of the contract, and must stand upon that; and could not, therefore, properly or consistently set up at the trial any facts by way of excuse of performance. The further suggestion of counsel for appellee that the plaintiff could not recover by reason of admitted deceit in the letter which set forth the terms of the contract, does not seem to us to be well taken. The truth or falsity of the representations made by the plaintiff as to its experience in manufacturing machines of the type in question, is not material to the issue. Whether that experience had been much or little, if the plaintiff had furnished a machine capable of doing the work it was warranted to do in the contract for its purchase, the defendant would certainly have been liable for the contract price. If it had appeared to the satisfaction of the jury, that this machine was capable of doing its work properly, any misstatement as to the experience of the plaintiff in building other similar machines, would have resulted in no injury to the purchaser.

The assignments of error are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Stewart,

license: Public Domain

text:
    McMichan’s Estate.

      Evidence — Presumption—Payment—Outstanding duebill.

    The presumption that a duebill outstanding in the hands of the original payee is a subsisting, undischarged obligation, while very strong, is not conclusive; in other words, it is not a strictly legal presumption having the effect to shut out further investigation, and exclude the functions of a jury. It simply stands for proof until rebutted; and where it is met by opposing presumptions arising out of facts in the case, the question of payment cannot be determined by the court as matter of law, but must be submitted to the jury.
    The presumption of nonpayment arising from the circumstance that a duebill is outstanding, may be met by the facts that subsequent to its date the payee had in his hands the means of payment which he made no attempt to apply, but paid over without deduction, and that for two years after the death of the maker he took no steps to secure its payment and did not make known to anyone its existence.

      Evidence — Presumptions—Conflicting testimony — Findings of fact by court — Practice, C. P.

    The rule which gives to a finding of fact by the court the effect of a verdict, recognizes no distinctions between a finding which results from weighing conflicting presumptions from admitted facts, and one which is a conclusion from conflicting testimony. In either case the finding is allowed to prevail except as clear error is shown.
    Argued Jan. 7, 1908.
    Appeal, No. 189, Jan. T., 1907, by Louis Alexander, ancillary administrator c. t. a. of the estate of Harry D. Lentz, deceased, from decree of O. 0., Phila. Co., Jan. T., 1905, Ho. 56Q, dismissing exceptions to adjudication in estate of Edward J. McMichan, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      Benjamin Alexander, for appellant.

      George L. Crawford, of Crawford & Loughlin, for appellee.
    March 2, 1908:
   Opinion by

Mr. Justice Stewart,

The presumption that a duebill outstanding in the hands of the original payee is a subsisting, undischarged -obligation, while very strong, is not conclusive; in other words, it is not a strictly legal presumption having the effect to shut out further investigation, and exclude the functions of a jury. It simply stands for proof until rebutted; and where it is met by opposing presumptions arising out of facts in the case, the question of payment cannot be determined by the court as matter of law, but must be submitted to the jury: Reynolds v. Richards, 14 Pa. 205. Had this been a common-law action on the duebill, the case must have gone to the jury. The rule which gives to a finding of fact by the court the effect of a verdict, recognizes no distinction between a finding which results from weighing conflicting presumptions from admitted facts, and one which is a conclusion from conflicting testimony. In either case, the finding is allowed to prevail except as clear error is shown. The presumption of nonpayment, which here arose from the circumstance that the duebill was outstanding, was met by the fact that subsequent to its date the payee had in his hands the means of payment which he made no attempt to apply, but paid over without deduction. Maker and payee had been business partners; the former having died, the latter as liquidating partner converted the assets of the firm, and paid out to the estate of the former, sums which in the aggregate exceeded twelve times the amount of the due-bill he held. This was a circumstance which tended strongly to raise an opposing presumption, quite sufficient to carry the case to the jury had it been an action at law. But the defendant did not rest on this circumstance alone. The books of the partnership were introduced showing the accounts of the partners, and what each had contributed to the capital of the firm. It is not too much to say that these accounts lend large support to the contention that the dnebill was part of Lentz’s contribution, and as such was accounted for. Besides this, there was the additional fact that not for two years after the dissolution of the firm by the death of McMichan, did Lentz make any demand for the payment of the duebill. His interest in the firm was comparatively very small; he was himself of ver}' limited means ; he had paid over to McMichan’s estate out of firm assets upwards of $24,000, leaving but $838.24 unsettled, and yet continued to hold during the period of liquidation, and for two years after the death of McMichan, the latter’s duebill of $2,250 without making any demand for its payment, or so far as the evidence shows, making known to anyone its existence. He survived a year after making the demand upon the personal representative of McMichan, but took no step to enforce his claim.

Hpon a review of all the facts, we cannot say that the court erred in allowing the presumption of payment to prevail. The decree is affirmed, and appeal is dismissed at appellant’s cost.


author: Mr. Justice Fell,

text:
    Holmes v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Death—Amendment—Parent and child — Husband and wife — Parties—Practice, C. P.

    In an action brought by a father against a railroad company to recover damages for the death of his minor son, the record may be amended after the period of the statute of limitations, so as to make the mother a party plaintiff.

      Negligence — Railroads—Damages—Parent and child — Evidence.
    In an action by a father against a railroad company to recover damages for the death of his son eighteen years old, where it appears that the father was a sales agent in a certain territory, and that the son, owing to the father’s illness, assisted him in the business, but did not own it or control it, it is reversible error to submit the case to the jury on the theory that the son was entitled to all the commissions earned from the sales in the business.
    Argued Jan. 7, 1908.
    Appeal, No. 184, Jan. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., JuneT., 1905, No. 3,035, on verdict for plaintiff in case of William A. Holmes v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat,Rotter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s minor son.
    Before Ralston, J.
    At the trial the court permitted the record to be amended by adding the name of Edith Elizabeth Holmes, the decedent’s mother, as a party plaintiff. [1]
    When the plaintiff was on the stand he was asked the following question:
    “ Q. What were the whole sales made by you in both trips for the Medlar & Holmes Company, in the territory your son was to cover during the season of 1904 ? ”
    Objected to.
    The Court: I am not sure that it would not be admissible to show sales made by the company in this territory.
    Mr. Brown : If he did as well as or better than his father had done in the spring, it would be fair to assume I think that he would have done as well or better in the fall.
    Mr. Archibald : “ Q. Can you give us the sales made by the Medlar & Holmes Company in the territory assigned to your son during the year 1904 ? A. Yes, sir. Q. Please give us those figures ? ”
    Objected to.
    The Court: Here is a boy who gets his commission on the business done by the company whether he has anything to do with securing the business or not. Is it fair, therefore, to take the average business of the company for years before and since his death ?
    Mr. Barnes : The business of the company in this section is obtained by the agent who goes through the section. Now, therefore, while it is said that the boy had an opportunity to take commissions on all sales in the section, the sales for the preceding year were made by this man with his experience and knowledge of the places and the following that he had. It seems to me that it comes back to the same question that we had before, and that you cannot bind the defendant in this way. We have heard that there were two.trips in a year and that he had completed one trip.
    The Court: “ Q. I understood that he had not completed the trip. A. He was only commencing his season. Q. What is the average extent of the trip ? A. This southern trip was preliminary. I would always make it in about two weeks and then start into my northern territory. Q. Iiow long would it all take ? A. His season started in the first of April — April, May and June — about the middle of March is when his real work started in Ohio. Q. And lasted through April, May and June % A. Yes, and in July it dwindled out, and then his vacation would come, but his real season’s work commenced about the 15th of March. He had only done the preliminary work.”
    The Court: Have you figured out those commissions ?
    Mr. Barnes: $1,018.25.
    The Court: You may offer to show the total sales made for one or two years each way.
    Objected to. Objection overruled. Exception for defendant.
    Mr. Barnes: I object generally because it is incompetent and irrelevant and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent.
    Mr. Archibald: “ Q. Gives us the sales made by the Medlar & Holmes Company in the territory assigned to your son during the year 1901.”
    Objected to as irrelevant and incompetent and especially because the testimony already shows that the sales were made in the preceding year in the territory in question by the plaintiff as the sales agent. Objection overruled. Exception for defendant. [J]
    Yerdict and judgment for plaintiff for $10,500. Defendant appealed.

      Errors assigned were (1, T) above rulings.

      John Hampton Barnes, for appellant.
    The action cannot be sustained because brought in the name of the father only: Waltz v. R. R. Co., 216 Pa. 165 ; Kerr v. Penna. R. R. Co., 169 Pa. 95 ; Grier v. Northern Assurance Co., 183 Pa. 334 ; La Bar v. New York, S. & W. R. R. Co., 218 Pa. 261 ; Huntingdon & Broad Top R. R. Co. v. Decker, 81 Pa. 419 ; Ry. Co. v. Needham, 52 Fed. Repr. 371.
    The measure of damages for the wrong resulting from the decedent’s death was erroneous.

      Francis BhunJc Brown, of Sinvpson & Brown, with him Robert IF. Archbald, Jr., for appellees.
    The father could recover his own damages in a suit by him alone : Kerr v. Penna. R. R. Co., 169 Pa. 95.
    The introduction of new parties which the cases say is prevented by the statute of limitations, must be such a change as alters the cause of action: Smith v. Bellows, 77 Pa. 441 ; Wolf v. Wolf, 158 Pa. 631.
    The statutes of amendment are to be liberally construed in favor of a trial on the merits: Fidler v. Hershey, 90 Pa. 363 ; Booth v. Dorsey, 202 Pa. 381 ; Clement v. Com., 95 Pa. 107 ; Herbstritt v. Lumber Co., 212 Pa. 495 ; Weaver v. Iselin, 161 Pa. 386 ; Garman v. Glass, 197 Pa. 101 ; Waltz v. Penna. R. R. Co., 216 Pa. 165.
    The ruling as to the measure of damages was proper : Pittsburg Gauge Co. v. Valve Co., 184 Pa. 36 ; Reiter v. Morton, 96 Pa. 229.
    March 2, 1908 :
   Opinion by

Mr. Justice Fell,

This action was brought by a father to recover for the death of his son eighteen years of age, who was killed while a passenger on the defendant’s road. It appeared from the testimony at the trial that the deceased was survived by both parents, and a motion to amend the record so as to make the mother a party plaintiff was allowed against the objection of the defendant. The assignments of error relate to the allowance of the amendment and to the measure of damages.

Amendments have been liberally allowed in furtherance of the object of the statutes to relieve against mistakes of either fact or law and in the interest of justice to secure a trial on the merits. But the well-defined limitation of the right of amendment is that no new cause of action shall be introduced and no new parties brought in after the statute of limitations has become a bar. It was said in Cassel v. Cooke, 8 S. & R. 268, in relation to the cause of action, that “ The true criterion is whether the alteration or proposed amendment is a new or different matter, another cause of controversy, or whether it is the same contract or injury and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint and with his proof and the merits of his case.” This distinction has been observed uniformly in a long line of cases, among the more recent of which are Grier v. Assurance Co., 183 Pa. 334; Garman v. Glass, 191 Pa. 101; Wright v. Copper Co., 206 Pa. 214; Wilkinson v. North East Borough, 215 Pa. 486. While a change of parties that involves a substantial change in the cause of action will not be allowed, as the substitution of the heirs of a decedent for the administrator of his estate: Wildermuth v. Long, 196 Pa. 541; or the substitution of a widow as admintratrix as plaintiff in an action she had brought in her own right: La Bar v. Railroad Co., 218 Pa. 261; still where the rights of a party are liable to be defeated by having joined too few or- too many as plaintiffs or defendants, amendments that would deprive the opposite party of no right have been allowed: Booth v. Dorsey, 202 Pa. 381.

The amendment allowed in this case placed on the record as plaintiffs the persons who were entitled to sue, the right of action being vested by the act of 185.5 in both parents. The cause of action remained the same and no change in the allegations or proofs was involved, and the defendant was not in the slightest degree prejudiced by it. Without question a change in the name of partners or the adding of the names of partners omitted by mistake or the name of another administrator or trustee or of a use plaintiff would be allowed after the bar of the statute. The principle on which such amendments are allowed should govern in this case. In Railroad Co. v. Decker, 84 Pa. 419, a widow who had brought an action in her own right to recover for the death of her husband was allowed after the bar of the statute to amend her declaration by naming “ the parties entitled in such action ” as required by the Act of April 26, 1855, P. L. 309.

The assignments of error that relate to the measure of damages must be sustained. The plaintiff, William A. Holmes, had for a number of years been the sales agent of two companies in a certain territory and was entitled to five per cent on all sales made in the territory whether actually made by him or not. His commissions on sales were approximately $12,000 a year. On account of the plaintiff’s illness his son had gone into this territory as his father’s representative and had been so employed three months before he was killed. The accounts of both companies were kept as before in the plaintiff’s name, but the commissions were paid by one of the companies to his son, who handed them to him. Ho definite arrangement had been made as to what the son was to receive for his services. Testimony was admitted and the case was submitted to the jury on the theory that the son was entitled to all the commissions earned from sales. There was error in this. The business was the plaintiff’s, in which his son assisted him. He had created it and controlled it, and owned it as fully and derived as much from it after his son’s death as before. His pecuniary loss was not the value of the business, but the value of his son’s assistance in carrying it on.

The judgment is reversed with a venire facias de novo.


author: Mr. Justice Brown,

text:
    Carlin, Appellant, v. William Butler Company.

      Negligence — Cellar door — Contributory negligence — Evidence—Province of court and jury — Nonsuit.
    In an action to recover damages for personal injuries, it appeared that the plaintiff was employed by the defendant to paint a sign on a store window pane. During this work he was compelled to stand on a folding cellar door under the window. Before starting the work he warned the employees of the defendant not to open the folding parts of the door without notice to him. As he stood upon one fold of the door with his eyes and hands directed upwards, a clerk of the defendant, without being observed by plaintiff, opened another fold of the door, and the plaintiff subsequently stepped an inch or two to the right of where he had been standing, and fell into the opening and was injured. Held, that the case was for. the jury, and that it was error to enter a non-suit.
    A plaintiff in an accident case is not to be nonsuited because one of his own witnesses testifies to acts of the plaintiff showing contributory negligence, where the plaintiff himself denies the commission of such acts.
    Argued Jan. 8, 1908.
    Appeal, No. 216, Jan. T., 1907, by-plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1906, No. 1,741, refusing to take off nonsuit in case of John H. Carlin v. William Butler Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Brégy, J.
    The facts are stated' in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was the order of the court.

      Charles Lehr, for appellant,
    cited: Johnson v. Bruner, 61 Pa. 58 ; Iseminger v. York Haven Water & Power Co., 206 Pa. 591 ; Smith v. Jackson Twp., 26 Pa. Superior Ct. 234 ; Rirchner v. Smith, 207 Pa. 431.

      George L. Crawford, of Craivford Loughlin, with him John W. Llallahan, 3d, for appellee,
    cited : Quigley v. Thompson, 211 Pa. 107 ; Artz v. Lit, 198 Pa. 519 ; Strayline v. Phila., 15 Pa. Dist. Rep. 387 ; Stackhouse v. Vendig, 166 Pa. 582 ; Kupp v. Rummel, 199 Pa. 90 ; Baldwin v. Urner, 206 Pa. 459 ; Gallagher v. Snellenburg, 210 Pa. 642.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

The appellant had a contract with the appellee to put in a building owned or occupied by it a store window pane, and to place upon the same the sign “ William Butler Company.” In putting these letters upon the glass he was compelled to stand on a cellar door under the window. It consisted of four leaves or folding parts, each about fourteen inches in width, the two middle parts folding back upon the outer parts. The top of the letters was six feet and three inches above the cellar door, and when the appellant was putting them on, his hands were above his head and his eyes were on his work. Before starting to work on the day he was injured he found the cellar doors open, and closed them, telling the clerks or employees of the appellee that they should not open them without notice to him, as he would have to stand on the cellar door in placing the letters on the glass. While he was so engaged, standing on the left half of the cellar door, the first leaf of the right half was opened by a clerk of the appellee, without notice to and unobserved by him, intent upon his work and with his eyes turned upward. In stepping but an inch or two to the right he fell into the opening and sustained the injuries for which compensation is sought in this action. Under the foregoing state of facts, as testified to by him, the court directed a nonsuit, on the ground of his contributory negligence. The refusal to take it off is the error assigned on this appeal.

To do the work which he contracted to do for the appellee it was necessary for the appellant to stand on the cellar door, but he could stand safely on one-half of it only if the other half was kept closed. This the appellee knew as well as he, and warning was given it not to open a leaf while he was engaged on his work without notice to him. This warning was disregarded, and to hold that the appellant, as a matter of law, engaged as stated, was bound, before moving his foot an inch, to take his eyes from his work and look down to see whether his injunction had been disregarded, would be to hold him to a degree of care which a jury might fairly find to be unreasonable. The only inference to be drawn from the facts gathered from plaintiff’s testimony is by no means that he was guilty of contributory negligence, and that question, therefore, was not for the court, but for the jury : Iseminger v. York Haven Water & Power Co., 206 Pa. 591.

In appellant’s brief of argument it is stated that the non-suit was entered on the authority of Stackhouse v. Vendig & Co., 166 Pa. 582. There is no analogy between it and this case. There the plaintiff, in broad daylight, in stepping from the entrance to a hotel on to the sidewalk, stumbled over an obstruction which he would have seen if he had looked. We refused to permit a recovery because “ he took no heed of his movements. Had he been looking where he was going he would necessarily have seen the cellar doors and avoided them. His accident was his own fault.” Here the plaintiff took the only safe place he could have taken in performing his contract with the appellee. When he took it, it was perfectly safe. Without his knowledge, and in the face of his warning, a trap was set at his feet. As his eyes were upon his work above his head, and he made but a single step, he fell into it. The witness called by him — the clerk of the appellee who opened the cellar door — testified, on cross-examination, that the plaintiff knew the cellar door was open. If this be true, he cannot recover ; and we are asked to sustain the judgment below because it must be assumed to be true, having been testified to by one of plaintiff’s witnesses. His testimony was otherwise, and he is not to be nonsuited because another of his own witnesses shows his negligence : Kohler v. Railroad Co., 135 Pa. 346 ; Ely v. Railway Co., 158 Pa. 233.

The judgment is reversed and a procedendo awarded.


author: Mr. Justice Mestrezat,

text:
    American Trust Company to use, Appellant, v. Louderback.

      Principal and surety — Bond—Promissory notes — Renewal notes.

    A bond given to secure the payment at maturity of promissory notes of another purchased by the obligee, does not secure renewal notes substituted in place of the notes purchased by the obligee, and not paid at maturity.
    Argued Jan. 8, 1908.
    Appeal, No. 234, Jan. T., 1907, by plaintiff, from order of C. P. Ho. 4, Phila. Co., Sept. T., 1905, Ho. 4,263, making absolute rule to open judgment in case of American Trust Company to use of Federal Trust Company v. Daniel Louderback.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Edgar K. Bleloch, with him Michael Francis Boyle, for appellant.
    A judgment entered, upon a warrant of attorney, given by A to indemnify, save and keep harmless B of and from all loss, etc., of whatsoever kind, by reason of the nonpayment of any commercial paper made or indorsed by 0 and purchased by B, is collateral to the debt, or debts, and is not relieved by renewals of the notes : First Nat. Bank of York v. Diehl, 218 Pa. 588 ; Lytle’s App., 36 Pa. 131 ; Shrewsbury Savings Institution’s App., 94 Pa. 309.

      Joseph II. Taulane, with him Ernest E. Prevost, for appellee.
    It is confidently submitted that a bond given to secure the payment of a note at maturity is not security for a note taken in renewal thereof: Ayres v. Wattson, 57 Pa. 360 ; Moorehead v. Duncan, 82 Pa. 488 ; Price v. Dime Savings Bank, 124 Ill. 317 (15 N. E. Repr. 754); Bank v. Burns, 46 N. Y. 170 ; Metz v. Todd, 36 Mich. 473 ; Diehl v. Davis, 88 Pac. Repr. 532.
    March 2, 1908:
   Opinion by

Mr. Justice Mestrezat,

A brief statement of the facts shows that the learned court below was right in making absolute the rule to show cause why the judgment in this case should not be opened and the defendant let into a defense.

Daniel Louderback, the defendant, on July 12, 1905, executed a bond and warrant of attorney to the American Trust Company, the legal plaintiff, in the sum of $5,000. The bond recites that: “the American Trust Company has in the past purchased and may in the future purchase commercial paper made or indorsed by Samuel K. Reichner;” and “it is the intention of the said Daniel Louderback to save, protect, indemnify and keep harmless the said American Trust Company, of and from all loss by reason of any of the said commercial paper not being paid at maturity.” The condition of the bond is that Louderback will “save, protect, indemnify and keep harmless the said American Trust Company, of and from all loss, charge, expense, liability, claim or demand of whatsoever kind by reason of the nonpayment at maturity of any commercial paper made or indorsed by Samuel K. Reichner and purchased by it, the said American Trust Company.” On November 22,1905, the American Trust Company entered judgment on the bond; and in one year thereafter, on November 22, 1906, assigned the bond and judgment to the Federal Trust Company, the equitable plaintiff.

After the execution and delivery of the bond, the American Trust Company purchased notes made or indorsed by Reichner. On November 22,'1906, the date on which the American Trust Company assigned the bond and judgment to the Federal Trust Company, the former sold to the latter eleven notes indorsed by Samuel K. Reichner for the face value thereof, $é,115. The bond and judgment were assigned to the Federal Trust Company as security for the payment of these notes. On the hearing on the rule to open the judgment, both sides took depositions which developed the fact that all the notes sold to the Federal Trust Company by the American Trust Company on November 22, 1906, were the last renewals of other notes purchased some time before and which were not paid at maturity. ’’ J. S. Crawford, vice president of the American Trust Company, testified that in purchasing the notes his company had no other evidence of the indebtedness of Reichner than the notes that were purchased ; that when a note matured, the old note was handed back to Reichner because the company got a new note to take its place ; that when a note was renewed that was considered as an extension of the credit to Reichner ; and that in renewing the notes, the new note replaced the old and was taken in payment of the old note.

It is clear from this statement of the uncontroverted facts in the case, that Louderback is not liable for the eleven notes now held by the Federal Trust Company. The extent of his liability for Reichner’s notes is clearly defined by the obligation which he signed, and the terms of the bond fix his liability. The recital in the bond as well as its condition show that Louderback’s liability to the obligee company was limited to “ the nonpayment at maturity of any commercial paper made or indorsed by Samuel K. Reichner and purchased by it.” The bond was not given to secure any notes made or indorsed by Reichner, but only such as were purchased by the trust company and not paid at maturity. The security had the right to define and limit his liability, and having done so the trust company was compelled to observe the limitation or restriction if it sought to charge the security with Reichner’s default. The indemnity given the obligee in the bond was for Reichner’s commercial paper purchased by the company and not paid at maturity. On all such paper the obligor in the bond was liable. This, it will be observed, was a limited or restricted liability. It was not the intention of the security to be bound for any or all notes which Reichner might make or indorse ; nor was it the intention of the obligation that the purchaser of Reichner’s notes should be at liberty to renew the purchased notes at his pleasure and make the security liable for the nonpayment of the renewals. As said by Sharswood, J., in Ayres v. Wattson, 57 Pa. 360, substituting bond for mortgage, it is plain that the bond, in law as well as in equity, was not a security for the renewal notes.” It was not renewal notes that the security obligated himself to pay. The stipulations of the contract between the parties being clear, they are bound by them, and it is the duty of the court to enforce them. '

It is conceded that the only notes held by the plaintiff are the last of several notes which were purchased by the plaintiff. These notes were given and accepted in payment of the prior notes. They are, therefore, clearly not the notes purchased by the plaintiff and unpaid at maturity which alone imposes liability upon the security. When the original notes matured, the security became responsible, and payment could have been enforced against him. Such were the terms of his bond. Por reasons satisfactory to the holder of the purchased notes, those notes were canceled and returned to the maker and other notes were taken in payment and satisfaction thereof. The notes, therefore, on which the security was liable were paid and destroyed. That was the end of the liability of the security imposed by the terms of the bond.

In 1 Jones on Mortgages (6th ed.), sec. 355, p. 294, it is said: “ A mortgage given to secure the payment at maturity of the notes of another does not secure renewal notes substituted in place of them. The mortgagor stands in the relation of surety for the debtor, and his obligation cannot be continued without his consent.” Such is the doctrine of our cases, Ayers v. Wattson, 57 Pa. 360; Moorehead v. Duncan, 82 Pa. 488; and it rules this case decisively against the Appellant.

The order of the court below, making absolute the rule to show cause why the judgment should not be opened and the petitioner let into a defense, is affirmed.


text:
    Commonwealth to use v. Magee, Appellant.

      Executors and administrators — Principal and surety — Bond—Premature suit

    A suit prematurely brought on an administrator's bond before final decree in the orphans’ court, is not saved by anything contained in sec. 6 of the Act of June 14, 1836, P. L. 637, which provides for intervention in an action brought on a bond in the name of the commonwealth at the suggestion of the party injured. The designation in the act of “any other person,” cannot be construed to include one who has brought an action on a bond when no one has a right of action, and no one with a subsequently acquired right has intervened.
    Argued Jan. 8, 1908.
    Appeal, No. 244, Jan. T., 1907, by defendant, from order of O. P. No. 1, Phila. Co., June T., 1902, No. 4,508, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Commonwealth to use of Charles Beckingham v. James E. Magee and Robert J. Barr.
    Before Mitchell, C. J., Fell, Bbown, Mestbezat, Pottee, Elkiet and Stewabt, JJ.
    Reversed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts appears by the opinion of the Supreme Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Alex. Simpson, Jr., with him Charles L. Brown, for appellant.
    The suit was prematurely brought : Com. v. Stub, 11 Pa. 150 ; Gunnis v. Cluff, 111 Pa. 512.
    Assuming that the same person with a new cause of action, different from that already declared on, may be held to be within the designation of “ any other person,” in the act, it is none the less clear that the same person by filing a new suggestion cannot become “ any other person ” as to the cause of action set forth in the pending suit.

      Trevor T. Matthews, for appellee.
    Where no judgment has been entered upon the bond, but where suit has been brought to recover upon the bond, the person presenting the second claim files a suggestion of claim, with leave of the court to be made a party plaintiff in such writ; thereupon, he declares and sets forth the breaches of conditions of such bond or obligation to his particular injury, as aforesaid: Com. v. Straub, 35 Pa. 137 ; Com. v. Cope, 45 Pa. 161.
    The attorney for the appellant tells us that there is no suggestion or hint in the act that if the suit is prematurely brought that it is to be kept alive because it is a suit upon an official bond.
    This is directly against the seventh clause of section 6 of the Act of June 14, 1836, P. L. 637.
    March 2, 1908:
   Opinion by

Mr. Justice Fell,

This appeal is from an order making absolute a rule for judgment for want of a sufficient affidavit of defense. The action was against a surety on a bond given in 1891, to secure the proper application of the proceeds of a sale of real estate of- a decedent made by the administrator of his estate for the payment of debts. The account of the administrator, which included the proceeds of the sale, was filed and confirmed nisi in 1892. Exceptions to the allowance of the claim of the use plaintiff were filed, but no action was taken in relation to them until October 22, 1902, when they were dismissed and the adjudication was confirmed. This action was commenced September 2,1902, before a final decree had been entered and while the exceptions were pending in the orphans’ court. Since then the case has had a wearisome and vexatious existence in the court of common pleas and has been twice in the Superior Court and once before in this court; see 24 Pa. Superior Ct. 329; 33 Pa. Superior Ct. 257; 213 Pa. 443. On April 5, 1907, the use plaintiff indorsed upon the docket of the common pleas a discontinuance of his claim in these words: “ The claims of Charles Beckingham under statement of claim of November 14, 1902, and under amended statement of claim of February 6, 1905, are hereby discontinued, provided this discontinuance does not discontinue the suit of the commonwealth as of the above term and number.” He subsequently filed a new statement based on the adjudications of the orphans’ court, made after the original action in the name of the commonwealth had been instituted. To this statement an affidavit of defense was filed in which, with other grounds of defense, it was alleged that the record of the orphans’ court disclosed no ground of action.

It is conceded by the appellant that the action was prematurely brought, but he seeks to sustain it under section 6 of the Act of June 14, 1836, P. L. 637, which provides that, where an action has been brought on a bond such as that in suit in the name of the commonwealth at the suggestion of the party injured, “ It may be lawful for any other person to whom a cause of action has accrued on said bond or obligation, at any time before judgment, upon a suggestion filed with leave of court, to be made a party to such writ and thereupon he may declare and set forth the breaches of condition of such bond or obligation to his particular injury as aforesaid.”

This section might be held to apply to a person at whose instance the writ issued, who has a new and distinct cause of action that accrued after the issuance of the writ, because the act contemplates only one suit and gives to all persons who have separate interests the right to join in it by suggestion of a right before judgment or by scire facias after judgment has been entered for the commonwealth : Com. v. Cope, 45 Pa. 161. But under the designation of “ any other person ” cannot be included one who has brought on action on a bond when no one has a right of action and no one with a subsequently acquired right has intervened. The action was premature as to everyone and the only course open to the use plaintiff was to discontinue the whole proceeding and commence de novo.

Since judgment could not properly have been entered for the reason stated, it is unnecessary to consider the other grounds of defense set up by the affidavit. The judgment is reversed.


author: Mr. Justice Elkin,

text:
    Washington’s Estate.

      Trusts and trustees — Parol trust — Wills—Legacy—Evidence.
    A trust as to personalty may be established by parol.
    If a bequest in a will is in terms absolute, but with an understanding had with the legatee that the estate so bequeathed shall be applied to some purpose designated by the testator, a trust arises which a court of equity will enforce, unless unlawful in itself. The acceptance of the trust may be shown either by the express promise of the legatee, or his assent may be implied from silence. The evidence to sustain such parol promise must be clear, precise and unequivocal.
    Where a legatee to whom a legacy was left without conditions contained in the will, stated in a letter in her lifetime that she held the legacy as a trust for herself and two nieces, and such written statement is supported by declarations of the legatee made to three disinterested witnesses, to the effect that such an understanding existed between the testatrix and the legatee who subsequently acknowledged the trust relation as to the bequest, the trust will be supported as to the principal in favor of the nieces after the death of the legatee, although there is some doubt under the testimony as to what disposition was to be made of the interest.
    Argued Jan. 8, 1908.
    Appeals, Nos. 269 and 272, Jan. T., 1907, by Eeal Estate Trust Company of Philadelphia, Executor, from decree of O. C. Phila. Co., Jan. T., 1907, No. 594, sustaining exceptions to adjudication in Estate of Mildred J. Washington, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Before Ashman, P. J.
    From the adjudication it appeared that Ann Jane Mercer died on April 5, 1886, leaving a will by which she gave to the decedent, Mildred J. Washington, an unconditional legacy of $25,000! This sum remained in the decedent’s hands until her death. At the audit Mildred Carter and Lelia Carter Moncure claimed the whole fund, alleging that it was held by the testatrix under a parol trust created for their benefit. The evidence as to this trust is stated in the opinion of the Supreme Court. The auditing judge disallowed the claim.
    Exceptions to the adjudication were sustained in an opinion by Anderson, J.

      Errors assigned were in sustaining the exceptions to the adjudication.

      G. BerTcley Taylor, for appellant,
    cited : Hoffner’s Est., 161 Pa. 331 ; McAuley’s Est., 184 Pa. 124 ; McCloskey v. McCloskey, 205 Pa. 491.

      William A. Glasgow, Jr., with him Chester JW. Farr, Jr., for appellees,
    cited : Hoffner’s Est., 161 Pa. 331 ; Osmond’s Est., 161 Pa. 543 ; McAuley’s Est., 184 Pa. 124.
    March 2, 1908 :
   Opinion by

Mr. Justice Elkin,

That a trust may be established by parol is settled law under our decisions : Church v. Puland, 61 Pa. 132 ; Hoffner’s Estate, 161 Pa. 331; Osmond’s Estate, 161 Pa. 513 ; McAuley’s Estate, 181 Pa. 121. The principle authoritatively stated by courts and text-writers, applicable to such cases, is that if a bequest in a will is in terms absolute, but with an understanding had with the legatee that the estate so bequeathed shall be applied to some purpose designated by the testator, a trust arises which a court of equity will enforce unless unlawful in itself. There is ample authority for the rule that the acceptance of the trust may be shown either by the express promise of the legatee or his assent may be implied from silence. As a rule, such trusts are sought to be established by parol testimony offered to prove the promise, or by verbal declarations of the alleged trustee, and In passing on the sufficiency of such evidence the courts have said that it must be clear, precise and unequivocal. The only question in the case at bar is whether the evidence offered at the hearing meets this standard of legal proof. That it is a very close question is apparent from the record. The learned judges of the orphans’ court, after a most careful consideration of the case, could not agree as to the inferences to be drawn from the established facts, but the majority held that the parol trust had been established by sufficient testimony. In our consideration of the question we have been aided by the careful preparation of paper-books by counsel on both sides, and by oral arguments clearly and concisely presenting the positions relied on by the contending parties, notwithstanding all these aids we find some difficulty in reaching a conclusion upon the merits of the exact question involved, which is, does the evidence warrant a finding that a parol trust has been established. We have concluded that it does. The intimate relations existing between the testatrix, the legatee named in the will and the claimants at the time the will was executed, are shown by the testimony and not denied. The testatrix, a lady with ample means and benevolent disposition, became interested in the Carter sisters, the claimants here, through their aunt, the legatee, and as a result an intimacy sprung up between them which lasted until the time of the death of the benefactress. A careful reading of the record forces the conviction on our minds that Mrs. Mercer intended not only to provide for the aunt, her friend, but also for the Carter sisters, for whom she had formed a strong attachment, and who were the special objects of solicitude and care on the part of both Mrs. Mercer and the aunt. The aunt was very much interested in her nieces. She was planning for their future. Mrs. Mercer grew very fond of these sisters, who became her companions and assistants. It was but natural that she should make some provision for them in her will when she was arranging for the comfort of the aunt. It is true the will in terms is an absolute bequest of $25,000 to the aunt, and no mention is made of the Carter sisters, but there is some evidence to show that Mrs. Mercer in her lifetime had an understanding with the aunt to provide for the sisters, and the evidence is convincing that the aunt, for many years after the death of the testatrix, regarded the bequest as held in trust for herself and the Carter sisters. The letter written by the aunt to her nephew, soon after the death of the testatrix, shows how she regarded the bequest at that time. It is in the following language : “ It is marvelous the way in which God has taken care of the girls since they have been with me. They have worked hard to earn an honest living. The Lord tells us He will help those who help themselves, and He has done so to them and also to myself. My friend, Mrs. Mercer, whom Lelia was with for some time as her amanuensis, died while Lelia was in Virginia, and she has left the girls and myself $25,000. We praise God for putting it in her noble kind heart to give us that magnificent gif t. We do not expect to get it for one year ; therefore we go on with our work until we get it as we wish to meet our expenses as usual and not live in idleness and owe those we have dealings with.” Clearly, the aunt at that time understood, and so declared, that the bequest was held in trust by her for the purposes stated in the letter. This written declaration of the aunt, the legatee, is supported by the testimony of John W. Carter, Mrs. Clark and Mrs. Kudicall. All of these witnesses testified that at different times the aunt made declarations to the general effect that the legacy of $25,000 had been left for the use and benefit of herself and the Carter sisters. One of these witnesses testified that the aunt had said to him the bequest had been made to her instead of to the Carter sisters because of their youth, and for the further reason that the aunt was more capable of handling the money, so as to secure the interest thereon and provide for the support of herself and them. To the same general effect is all the testimony in the case. It is urged that there is some variance in the testimony of the witnesses upon the question of just what the trust consisted in. All of the witnesses, however, agree that the principal was to be held intact, and only the interest used during the lifetime of the aunt. There is some doubt under the testimony what disposition was to be made of the interest. Whether it all belonged to the aunt, to be used as she thought proper, or whether it was to be held in trust for the common benefit of the three beneficiaries, does not clearly appear, but no question is raised as to the interest in this proceeding, and we do not think it is material in the determination of the question involved here. In our opinion the testimony is sufficient to establish a parol trust as to the principal. The court below has so found, and while the case is not entirely free from difficulty, on the whole we think the finding of the court should be sustained. ,

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


text:
    Parker, Appellant, v. Philadelphia.

      Municipalities — Contract—Awarding contracts — Specifications—Patented articles.

    The director of public works of a city is not required, when publishing specifications for a municipal contract, to decide finally on every item, but he may ask for alternative bids on two articles to be furnished, if he has set up a common standard as to them in the specifications and drawings, and has prescribed a method of bidding which gives an equal opportunity to each bidder.
    Where the thing to be furnished can be manufactured by anyone in precise conformity to certain and specific requirements or purchased in an open market at a standard price, there is no valid reason for asking for alternative bids; but where the thing is protected by a patent or cannot be bought in an open market and any one of a number of particular kinds fully complies with the established standard, the interest of a municipality will be best served by asking for bids for any or all.
    Mestrezat, J., dissents.
    Argued Jan. 9, 1908.
    Appeal, No. 336, Jan. T., 1907, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1907, No. 5,830, refusing preliminary injunction in case of Thomas Parker v. City of Philadelphia, John E. Reyburn, Mayor of said city, George R. Stearns, Director of the Department of Public "Works of said City, and Millard Construction Company, a corporation of the state of Pennsylvania.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Sulzberger, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree refusing preliminary injunction.

      Owen J. Roberts and E. O. Miohener, for appellant.-
    It is settled law that no contract can be let except upon competitive bidding ; and for bidding to be competitive there must be a common standard by which to measure the respective bids : Mazet v. Pittsburg, 137 Pa. 548 ; Ryan v. Ashbridge et al., 10 Pa. Dist. Rep. 153 ; Louchheim v. Phila., 218 Pa. 100.

      John O. Bell and Ernest Lowengrund, assistant city solicitor, with them A. W. Crawford, Sami.-K. Louehheim and J. Howard Cendell, city solicitor, for appellee,
    cited : American Pavement Co. v. Wagner, 139 Pa. 623 ; Schuck v. Reading, 186 Pa. 248 ; McCallin’s App., 1 Monaghan, 596 ; Interstate Vitrified Brick & Paving Co. v. Phila., 164 Pa. 477 ; Trapp v. City of Newport, 115 Ky. 840 (74 S. W. Repr. 1109).
    March 2, 1908:
   Opinion bv

Mr. Justice Fell,

This appeal is from an order refusing a preliminary injunction to restrain the mayor and the director of public works of Philadelphia from executing a contract with the Millard Construction Company for public work. The finding by the court, which rests upon undisputed testimony and the admission of counsel at the hearing that there was no evidence of fraud or collusion and that the director acted in good faith in awarding the contract to the Millard company as the lowest bidder, left but one question for determination. This question, as stated by the learned judge of the common pleas, was “ whether the award was illegal by reason of illegality in the specifications.”

The contract was for a large amount of work and material for the construction of preliminary filters and involved an aggregate expenditure of more than $1,150,000. Seventy-eight items were included in the specifications. Two of these items, it was alleged in the bill, were defective in that they furnished no common standard by which to estimate the bids. One of these, No. 59, related to controllers to measure the output from the filters, and the other, No. 63, to gauges to register the height of water in the filter and in the under-drains. The requirements of the city as to controllers, including the materials used in their construction, their capacity, and the size of inlet and outlet connections, were set out in detail in the specifications with the statement: “ The plans show a closed pressure type of controller, but the Director reserves the right to select the type and make that he considers best adapted to the work.” In the form of proposal to be filled up and signed by the bidder there were under item No. 59 three blanks to be filled in with the names of the kind or kinds of controller offered. Each bidder was at liberty to bid for one kind or for as many different kinds as he wished. There were six types of controllers in use. None of these was excluded by the requirements of the specifications. Similar blanks permitted bids for gauges “ as per contract drawing ” and for furnishing and settling gauges of a kind to be stated by the bidder. All controllers and gauges in use were protected by letters patent and the manufacture of.them was in an experimental stage. The object of asking for bids in this manner was to secure competition and to enable the director to select from the number offered the most suitable in price and quality. There was no complaint by any bidder or by anyone desiring to bid that he misunderstood or was misled or embarrassed by the form of bid adopted.

The inquiry is then narrowed to this : Was the director required, when publishing his specifications, to decide finally on every item, or could he ask for alternative bids on two articles to be furnished, having set up a common standard as to them in the specifications and drawings and having prescribed a method of bidding which gave an equal opportunity to each bidder ? The objections urged to the course pursued by the director are that it made favoritism in awarding the contract possible and that it prevented competition. Neither objection seems to be well founded. In regard to the first it may be said that no plan has yet been or is likely to be devised that will prevent all abuse in awarding municipal contracts and the mere possibility of favoritism is not a valid reason for pronouncing a plan per se illegal. As to the second objection, where, as in this case, the articles to be furnished are protected by patents and a uniform standard is established and any one of several patented appliances meets the requirements of the specifications, the asking for bids for any or all of them would certainly tend to secure rather than to prevent competition. Where the thing to be furnished can be manufactured by anyone in precise conformity to certain and specific requirements or purchased in an open market at a standard price, there is no valid reason for asking for alternative bids ; but where the thing is protected by a patent or cannot be bought in an open market and anyone of a number of particular kinds fully complies with the established standard, the interest of a municipality will be best served by asking for bids for any or all. The field is equally open to each bidder and the power of a monopoly in the thing is broken. The general custom of long standing has been to require bidders in certain classes of public work to furnish samples of the articles they proposed to furnish, in order that the quality of the sample may be taken into consideration in awarding the contract, thus bringing into competition both the price and the quality of the thing to be furnished. The legality of this custom has not been ques-. tioned. That in effect was what was done here.

In Attorney General v. City of Detroit, 26 Mich. 263, it was held that under an act requiring contracts to be let to the lowest responsible bidder, alternative bids might be requested and the decision as to the final choice made after the bids had been opened, especially in cases where the thing to be furnished was controlled by patents. It was said in the opinion of Cooley, J.: “ How if the purpose of the charter is to secure competition on work or supplies for the public, something is necessarily left to the discretion of the council; and they must determine in each case what competition the nature of the case permits of, and what is the best method to secure it. If they invite proposals for a particular thing or process, they necessarily in so doing exclude everything else which might have been a substitute for the thing called for. ... It would be worse than idle for the law to mark out, or for the council to follow, any one unvarying course in these cases. The same course, which, under some circumstances, would be manifestly proper and most for the public good, under others would be so manifestly detrimental and place the public so completely at the mercy of interested parties, that it could not be adopted by a body having any liberty of choice without justly subjecting themselves to the charge of corruption. It must, therefore, be manifest that any inflexible rule which the law should lay down, and which should trust nothing to the integrity, and nothing to the discretion of the council, must necessarily work mischief in many cases, and it would be productive of good, I think, in few cases, if any.” This case is cited with approval and its ruling followed in the recent case of City of Baltimore v. Mack, 104 Md. 107, in which it was held that the selection of the kind of pavement to be laid need not be made in advance of the time when bids were called for.

The conclusion reached by the learned judge of the common pleas is thus stated: “¥e are of opinion that, under our law, specifications for alternative bids are not per se unlawful; that in this case all bidders had an equal chance to bid on the alternatives, and that the failure of a particular bidder to avail himself of all the opportunities does not vitiate the bids of the others; that the action of the director has not been impeached by any evidence of fraud or collusion, but that on the contrary the presumption of law that he was performing his duty is confirmed by the oral evidence presented, and has not been in any way assailed, and, finally, that the allegation of the plaintiff that the Mack Paving Company was .the lowest bidder has not been sustained.” This conclusion was fully warranted by the law and the facts. The decree is affirmed at the cost of the appellant.

Mesteezat, J. dissents.


author: Mr. Justice Potter,

text:
    Henszey’s Estate.

      Wills — Conversion—Changing course of descent — Discretionary power to sell.

    The law does not favor conversion where the result will be to change the course of inheritance, and in such case it will be presumed no farther, than is necessary to carry out the intent of the testator. If in a qualified direction by a testator to sell real estate, the sale is prevented by the qualification, until the course of descent is changed by death, it will descend as land, and not as money.
    Where a testator orders land to be sold, and certain legacies paid out of the proceeds, the surplus money after the payment of the legacies, goes to the heir- at law, and not to the executor, as it would were it considered the residue of personal estate.
    A sale made by trustees, for the convenient management of the trust, and not under positive directions in the will, does not alter the course of distribution.
    Testatrix died leaving a will by which she created a trust for a person named for life, and upon the death of such person she directed her trustees to divide the principal of her estate into four equal parts, and to grant, convey and pay one part to her son, and made similar gifts of the other parts to other persons. The son died prior to the life tenant, leaving a -widow and children. The land remained unsold until after the death of the life tenant. The will gave the trustees a discretionary power of sale. After the death of the life tenant the land was sold under the power. Held, that the one-fourth of the estate, representing the son’s share, passed as real estate to his wife and children.
    Argued Jan. 9, 1908.
    Appeal, No. 320, Jan. T., 1907, by John Lloyd, assignee of Eose C. Henszey, from decree of O. C. Pliila. Co., dismissing exceptions to adjudication in Estate of Margaret A. Henszey, deceased.
    Before Mitchell, C. J., Fell, Bbown, Mesteezat, Potteb, Elkin and Stewabt, JJ.
    Affirmed.
    Exceptions to adjudication.
    By her will testatrix devised her estate in trust (1) to pay out and expend the sum of $800 for the support and maintenance of her daughter ; (2) to lay out and expend for the support and maintenance of her granddaughter, upon the death of the daughter, a sum not exceeding $600 ; (3) to provide for the burial of her granddaughter in case of her death ; (4) to set aside the sum of $200 to meet any sudden demands; (5) upon the death of her daughter, “ I direct my said trustees to divide the principal of my estate into four equal parts, and to grant, convey and pay one of said fourth parts unto my son, George C. Henszey, his heirs, executors, administrators and assigns,” and the same as to the other three children ; and (6) should the income of the estate not be sufficient to support and maintain her daughter during her life, and her granddaughter, while single and unmarried during the daughter’s lifetime, or pay her the annuity of $200, or pay for the expenses of their burial, then she authorized, empowered and directed her said trustees to use as much of the principal of her estate as shall be necessary for the purpose aforesaid.
    Testatrix then gave a power of sale, as follows:
    “ Item. I authorize, empower and direct my said executors and trustees to sell all or any part of my real estate at such time and times as they shall think proper, either at public or private sale or sales for the best price or prices that can be obtained for the same and upon receipt of the purchase money to sign, seal and execute and deliver to the purchaser or purchasers thereof, good and sufficient deeds or conveyances for the same in fee simple or reserving ground rents free, clear, and discharged of and from all debts and trusts and limitations and without any liability on the part of said purchaser or purchasers to see to the application of the purchase money.”
    The testatrix died July 5,, 1894.
    George C. Henszey, the son, about whose estate the contest has arisen, died May 18, 1901, leaving surviving his widow, Eose C. Henszey, and six children.
    Ellen D. C. Henszey, the daughter, died December 3, 1903.
    The auditing judge, Ashman, P. J., held that the share of George O. Henszey was not converted prior to the actuaL sale after the death of the life tenant, and that it passed from George O. Henszey as real estate.
    Exceptions to the adjudication were overruled in an opinion by Anderson, J.

      Error assigned was in dismissing exceptions to adjudication.

      John Houston Merrill, for appellant.
    There was a conversion by the actual sale : Ingersoll’s Estate, 167 Pa. 536 ; Lackey’s Est., 149 Pa. 7 ; Solliday’s Est., 175 Pa. 114 ; Holmes’ Est., 15 Pa. Dist. Rep. 774.

      Olinton A. Sowers, for appellee, was not heard.
    March 2, 1908:
   Opinion by

Mr. Justice Potter,

It appears from the history of this case, that Margaret A. Henszey died testate, July 5, 1894. She gave her estate to trustees for certain purposes, and directed her trustees upon the death of a daughter, to divide the principal of her estate into four equal parts, and to grant, convey and pay one of said fourth parts unto her son, George O. Henszey, his heirs, executors, administrators and assigns; and made similar gifts of the other parts to other persons. George O. Henszey died May 18, 1901, leaving a widow, Eose, and six children. He devised his property as though it were to pass under the intestate law, Ellen Henszey, the daughter of testatrix, died December 3,1903, and at the time of her death, the fund heré for distribution was real estate. The interest of Eose O. Henszey, wife of George O. Henszey, vested in her at the death of her husband, and it was of course real estate at that time.

The contention of appellant in the court below, was that there was a conversion under the terms of testator’s will. This was the only question considered in the adjudication and in the opinion of Judge Axdekson, except that in the last paragraph' of the opinion it is said: At the argument the point was made by one of the exceptants that the actual sale under the power would, of course, work a conversion. This is true, but has no application to the question at issue. The interest of Eose O. Henszey having vested in her as real estate, will not be changed into personalty by a sale subsequent to such vesting.”

Appellant’s counsel concedes that under the will there is no equitable conversion, and says that the case does not involve that question, but “ a question of the legal effect of an actual conversion.” It is therefore unnecessary to discuss the authorities on the subject of equitable conversion. The decision of the court below, that there was no equitable conversion under the will is admittedly correct and sustained by all the cases. The sale of the real estate in this case was not obligatory, but was made at the discretion of the trustees.

In Cooper’s Estate, 206 Pa. 628, we held that where executors sold land under a discretionary power more than two years after the death of the testator, his debts not of record having lost their lien, were not payable out of the fund. Justice Bbown said (p. 632): “ The conversion of the testator’s farm took place, therefore, when, in the exercise of the mere discretion reposed in the executor, to be exercised only on a certain condition, it was sold on September 21, 1900 — more than two years after the death of the testator.” So in the case at bar, the conversion did not take place until the actual sale by the trustees under their discretionary power. But at that time, the law had already determined the respective interests of Mrs. Henszey and her children in the land sold, and those interests could not be altered by the act of the trustees. To the same effect as the' case last cited are Solliday’s Estate, 175 Pa. 114, and Anewalt’s Appeal, 42 Pa. 414.

The law does not favor conversion where the result will be to change the course of inheritance, and in such case it will be presumed no farther than is necessary to carry out the intent of the testator: Darlington v. Darlington, 160 Pa. 65. If in a qualified direction by a testator to sell real estate, the sale is prevented by the qualification, until the course of descent is changed by death, it will descend as land, and not as money : Henry v. McCloskey, 9 Watts, 145.

The principle set forth in Wilson v. Hamilton, 9 S. & R. 424, is also applicable in this case, and that is, where a testator orders land to be sold, and certain legacies paid out of the-proceeds, the surplus money after the payment of the legacies, goes to the heir at law, and'not to the executor, as it would were it considered the residue of personal estate. This principle is also recognized in Raleigh’s Estate, 206 Pa. 451.

We think it may properly be considered a sound rule, that a sale made by trustees, for the convenient management of the trust, and not under positive directions in the will, does not alter the course of distribution. The assignments of error are overruled and the decree of the orphans’ court is affirmed.


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    Sack, Appellant, v. Ralston.

      Negligence — Elevators—Latent defect — Notice.
    An owner of a building cannot be held liable for personal injuries sustained by the fall of an elevator, where it appears that the accident was due to a latent defect in a bolt, that the bolt had been made by a machine blacksmith of thirty years’ experience, that it had been placed in the elevator a month before the accident in the course of repairs by a man with fourteen years’ experience in the elevator business, and that after the repairs had been made the elevator was inspected and passed by a casualty company, and by the department of public safety of the city in which the building was situated.
    Argued Jan. 9, 1908.
    Appeal, No. 349, Jan. T., 1907, by plaintiff, from judgment of C. P. Ho. 3, Pbila. Co., Dec. T., 1903, Ho. 720, on verdict for defendant in case of William P. Sack v. Robert Ralston.
    Before Mitchell, C. J., Fell, Bjrown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries.
    Before Yon Mosohziskee, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions.

      Ilenry J. Scott, for appellant,
    cited: McKee v. Bidwell, 74 Pa. 218 ; Greis v. Hazard Mfg. Co., 209 Pa. 276 ; Kitchen v. Riter Conley Mfg. Co., 207 Pa. 558 ; Lillie v. American Car & Foundry Co., 209 Pa. 161 ; Finnerty v. Burnham, 205 Pa. 305 ; Lininger v. Westinghouse Air Brake Co., 210 Pa. 62.

      H J. Rebmcm, with him James G. Gordon, for appellee,
    cited: Philadelphia, etc., R. R. Co. v. Keenan, 103 Pa. 124 ; Ardesco Oil Co. v. Gilson, 63 Pa. 146 ; Meany v. Abbott; 6 Phila. 256 ; Walden v. Finch, 70 Pa. 460 ; Walton v. Bryn Mawr Hotel Co., 160 Pa. 3 ; Anderson v. Hays Mfg. Co., 207 Pa. 106 ; McNeil Bros. Co. v. Crucible Steel Co., 207 Pa. 493 ; McClain v. Henderson, 187 Pa. 283 ; O’Dowd v. Burnham, 19 Pa. Superior Ct. 464 ; Kitchen v. Riter Conley Mfg. Co., 207 Pa. 558 ; Titus v. Bradford, etc., R. R. Co., 136 Pa. 618 ; Wannamaker et al. v. Burke, 111 Pa. 423 ; Service v. Shoneman, 196 Pa. 63.
    March 2, 1908 :
   Opinion by

Mr. Justice Brown,

The appellant, a drayman in the employ of wholesale dealers in groceries, was injured by the fall of an open platform elevator on the premises of the appellee, a grocer, to whom he was delivering bags of sugar. He had placed three bags upon it, weighing 100 pounds each, and, as he dumped a fourth, of the same weight, upon it, it suddenly gave way and dropped to the cellar. He had used this elevator nearly every week for two or three years before tl\e accident in delivering goods to the appellee, and, on the day it gave way, it was apparently in the same condition it had been in during that entire period. He had at times put on it 1,500 pounds. When it dropped, the weight on it was that of his own body and the 400 pounds of sugar. This was the whole of plaintifE’s case when he closed. There was nothing before the jury to explain the cause of the fall of the elevator. There was-no evidence of any negligence on the part'of the defendant. The only thing that the jury knew was that' an accident had happened, and a motion for a nonsuit was very properly made. The only reasonable explanation for its withdrawal by the learned counsel whovmade it is that he wished to affirmatively prove what he was not called upon to do, that his client had not only not been negligent, but had done everything he ought to have done to make the elevator safe.

One of the first things shown by the defendant was the cause of the falhof the elevator. It was due to the breaking of a bolt, fourteen or fifteen inches in length, running through a wooden crossbeam on the top of the elevator, to which the cables were attached. This bolt bad broken at about the middle, where it was entirely concealed by the wood. Upon an examination of the broken parts, after the accident, the breaking was found to be due to a latent defect which could not have been known to the defendant. This defect, according to the testimony of the man at whose factory the bolt had been made, was an imperfect weld, caused by some foreign substance which had adhered to the inside of the iron. He further testified that it was most unusual to find such a defect. The bolt had been furnished to an elevator company by the factory, in which a machine blacksmith of thirty years’ experience had it made. About a month before the accident the elevator was repaired by this elevator company, which had been in business for eight or nine years. A member of it, with fourtéen years’ experience in the business, made the repairs and inserted the bolt. After the repairs had been made the elevator was inspected and passed by a casualty company and by the department of public safety of the city of Philadelphia, which issued a certificate to the elevator company that “ the repairs and additions recently completed by you on a hand elevator in premises northeast corner of Thirteenth and Girard avenue have been inspected and found to comply with the law. Said repairs and additions are hereby approved.” After this approval of the repairs made to the elevator, it was put in operation, carrying, as stated, as high as 1,500 pounds. Under this uncontradicted state of facts the defendant was cleared of even the suspicion of negligence.

On this appeal a reason given why there should be a recovery is that the defect, which the defendant discovered after the accident, was a structural one, and, therefore, he is presumed to have had notice of it in this action by one who, at the time of the accident, must be regarded as an employee. In support of this there is quoted, with printed emphasis, what we said in Finnerty v. Burnham, 205 Pa. 305 : “ Where the defect through which the injury occurs is in the original construction of the appliance or instrumentality, notice thereof to the master is unnecessary. In case of structural defects, knowledge thereof by the master will be inferred.” The rule of constructive notice to an employer was applied in that case because the facts called for it, the defect having been a patent one. The case was submitted to the jury under instructions that the plaintiff could not recover unless he had shown that the chain “ was defective when it was applied; and, further, that the defect was apparent when it was supplied.” In affirming the judgment on the verdict we did so because the jury had found that the chain, the breaking of which had caused the death of plaintiff’s husband, was defective in its original construction, and that the defect was apparent when it was purchased by the defendants.” And so in the late case of Stine v. S. Morgan Smith Company, 219 Pa. 145, the rule of constructive notice to the employer was applied because the defect was a patent one. To a latent defect, such as the one in this case, from which, as from all other latent defects, the defendant was fully justified in believing his elevator was free, after its repair by competent workmen and its inspection by a casualty company and official inspectors, the rule can have no application. The case ought to have been taken from the jury, and the assignments of error, complaining of what was said in submitting it to them, are all overruled.

Judgment affirmed.


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    Stevenson, Appellant, v. E. E. Smith Contracting Company.

      Negligence — Evidence—Steps.
    Where a man eighty years old falls down a flight of steps and is injured, he cannot recover from the owner of the steps, where it appears that the steps were of a temporary character leading from a wall to a pavement, with no backs or risers, but with boards forming the tread at least ten inches wide, and that the accident happened by the old man catching his cane in the open space back of the step, causing him to lose his balance and trip over the cane.
    Appeal, No. 250, Jan. T., 1907, by plaintiff, from judgment of C. P. No. 2, Phila. Co., l)ec. T., 1905, No. 670, on verdict for defendant in case of John L. Stevenson v. E. E. Smith Contracting Company.
    Argued Jan. 10, 1908.
    Before Mitchell, C. J., Eell, Beown, Mesteezat, Pottee, and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before WlLTBANK, J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      ParTcer 8. Williams, with him Reginald PL. Innes, for appellant.

      Frmik P. Prichard, with him J. Wilson Bayard, for appellee.
    March 2, 1908:
   Opinion by

Mr. Justice Potter,

Upon the trial of this case, at the close of the testimony .for the plaintiff, the trial judge, upon motion of counsel for defendant, instructed the jury to find a verdict in favor of the defendant. It appears from the evidence, that at the time of the accident the plaintiff, a man of eighty years, was descending a temporary flight of steps at a point in the street where the grade was being changed. He was stepping from the top of the cement retaining wall to the first step, which was made of solid plank ten inches wide. At the back of the plank there was a space two inches wide, between the edge of the plank and the cement wall, but the broad surface of the step was immediately below and in front of him. The plaintiff put out his cane to steady himself, but the end of the cane did not find the proper spot, and instead of resting on the solid plank, went into the space behind. This apparently caused the plaintiff to lose his balance, and he tripped over the cane, and received a severe fall, resulting in the injuries for which he sought to recover in this action. No defect was shown in the construction of the steps, the only criticism being that a two inch open space was left at the rear of the step. But this space had no connection with the construction of the steps, as it was formed when a plank, used to guard the cement when fresh, in a wall, was taken away. None of the steps had risers between the treads, but instead there were open spaces as in ordinary cellar steps. We can see nothing in the facts of the case beyond an accidental misplacement of his cane by the plaintiff, as he attempted to put it down in front of him and upon the step below. He simply missed the plank. He might have missed it in precisely the same way by putting the cane in front of it, but as a matter of fact he failed to locate it properly by reason of getting it behind the plank forming the step, which presented a good broad solid surface ample for both his cane and foot to rest upon; the board forming the tread of the step being, according to the testimony, at least ten inches wide. We find no testimony tending to show that the steps were of an unusual or unsafe form of construction, or that there was any defect or opening in the steps which was dangerous to anyone using them in the ordinary way, or with ordinary care.

The defendant cannot be charged with negligence because the plaintiff failed to find the step, in feeling for it with his cane, and by reason of that failure lost his balance and tripped over the cane. He might have met with precisely the same mishap in passing over a grating in the sidewalk, or in passing over a gutter.

We find nothing in the evidence which would have justified the submission of the case to the jury. The trial judge was clearly right in giving binding instructions in favor of the defendant, and the judgment is affirmed. .


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    Hemscher, Appellant, v. Dobson.

      Negligence — Master and servant — Machine—Evidence—Nonsuit.
    In an action by a girl fourteen years old against her employer to recover damages for personal injuries, sustained by her hand being caught in a machine at which she was working, a nonsuit is properly entered, where the evidence shows that the machine suddenly started, and that plaintiff's hand was drawn in and injured, but there is no evidence whatever to show what caused the machine to start, or that the defendant was in any way responsible for the starting, or had any knowledge or reason to anticipate that the machine was liable to start of its own accord, or that the accident was caused by any lack of warning or instruction to the plaintiff.
    Argued Jan. 10, 1908.
    Appeal, No. 350, Jan. T., 1907, by plaintiffs, from order of C. P. No. 5, Pbila. Co., Dec. T., 1903, No. 2,978, refusing to take off nonsuit in case of John Hemscher and Ethel Hemscher by her father and next friend, John Hemscher, v. John Dobson and James Dobson, trading as Mount Vernon Mills.
    Before Mitohell, C. J., Fell, Beown, Mesteezat, Potteb and Elkin, JJ.
    Affirmed.
    Trespass by a girl fourteen years old against her employer to recover damages for personal injuries.
    Before Ralston, J.
    The facts are stated in the opinio^ of the Supreme Court.

      Error assigned was order refusing to take off nonsuit.

      Henry J. Scott, for appellants.

      Thomas Earl White, of White, White <& Taulcme, for appellees.
    March 2, 1908 :
   Opinion by

Mr. Justice Potter,

This is an appeal from the refusal of the court below to take off a judgment of compulsory nonsuit. In the opinion of the trial judge, no negligence upon the part of the defendant was shown. The plaintiff was working upon a reeling machine, which she had stopped; and she states that while she was taking the yarn off the reel, the machine suddenly started, and her hand was drawn in, and injured. There was no evidence to show what caused the machine to start. There was neither allegation nor proof of any defect. There was nothing in the nature of the accident suggestive of the conclusion that the employer had fallen short of the obligatory standard of care. The law is well settled, that no presumption of negligence on the part of the employer arises from the mere happening of an accident. The present case is distinguishable from Patterson v. Trust Co., 211 Pa. 173, cited by appellant, in that the machine in that case, during a period of five or six years in which it had been in use, frequently had been known to start up, of its own accord, and its liability to do so was well known in the shop, and should have been, to the employer. This placed upon him the duty to warn or instruct employees as to the danger. But in the present case, we find.no evidence that the machine had ever started in the way complained of, at any previous time. The plaintiff had worked upon the reel from eight days to two weeks, before the accident, and she appeared from her testimony to be very familar with it. The accident was due solely to the starting of the machine, and there is no testimony to show that the employers were in any way responsible for the starting, or that they had any knowledge, or any reason to anticipate, that the machine was liable to start of its own accord. Hor does it appear how any instruction that was properly called for, under the circumstances, would have avoided the accident. The plaintiff has not shown that any lack of warning or instruction was the proximate cause of the injury. As the trial judge said, this is one of the cases which must be classed among the regrettable and unfortunate accidents, but for which the employer cannot justly be held responsible.

The nonsuit was properly entered, and the judgment is affirmed.