author: Mb. Justice Thompson,

text:
    New Castle, Appellant, v. Kurtz.

      Negligence.—Municipality—Sidewalk—Subrogation—Notice—Tenant.

    The principle underlying the right of a municipality to be reimbursed for damages paid by it, by the abutting owner in front of whose property the accident took place, is that the owner is primarily liable to the person injured.
    Owners of property out of possession, with pavements in proper repair and properties properly constructed and also in proper repair, are not bound to keep watch and guard over the pavements, to prevent the formation of ridges of ice upon them and cannot be held liable for an injury consequent upon a sudden accumulation of ice in front of the property.
    An owner of premises located in a city and in the occupancy of a tenant, is not liable to the municipality for the amount of a verdict recovered against it for personal injuries caused by a fall on an icy ridge on the sidewalk in front of the premises, where it appears that the sidewalk was in a good condition of repair, that the owner had no notice of its icy condition, that the city had actual notice of its condition and failed to remove the ice, and that the dangerous condition was due to unusual weather conditions.
    Mestrezat and Potter, JJ., dissent.
    Argued Oct. 18, 1904.
    Appeal, No. 157, Oct. T., 1904, by plaintiff, from judgment of C. P. Lawrence Co., March T., 1902, No. 74, on verdict for defendant in case of City of New Castle v. Julia Maria Kurtz and Mary E. Clark et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover the amount of a verdict rendered against plaintiff in an action for personal injuries. Before Wallace, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for defendants by instruction of the court. Judgment was entered on the verdict.

      jError assigned was in directing a verdict for defendants.

      .James A. Gardner, city solicitor, with him Robert K. Aiken, for appellant.
    The primary duty of keeping the sidewalk in repair is upon the abutting property owner: Lohr v. Philipsburg Boro., 156 Pa. 246 ; Duncan v. Philadelphia, 173 Pa. 550 ; Pittsburg v. Fay, 8 Pa. Superior Ct. 269 ; Pittsburg v. Daly, 5 Pa. Superior Ct. 528; Mintzer v. Greenough, 192 Pa. 137; Dutton v. Lansdowne Boro., 198 Pa. 563.
    Where a municipality has been sued and paid a judgment for injuries sustained either by a defective sidewalk, or by reason of a nuisance caused or maintained by the property owner, recovery over can be had by the municipality against the property owner, and this without any previous notice to the property owner of the existence of the nuisance, or to remove or abate the same, or remedy the defect, as he must know it or as he is presumed to know it: Brookville Boro. v. Arthurs, 130 Pa. 501; s. c. 152 Pa. 334; Chester v. Bank, 9 Pa. Superior Ct. 517; Minzter v. Greenough, 192 Pa. 137; Dutton v. Lansdowne Boro., 198 Pa. 563; Reading v. Reiner, 167 Pa. 41; Brown v. White, 202 Pa. 297; Kirehner v. Smith, 207 Pa. 431; Dickson v. Hollister, 123 Pa. 421; Gates v. Penna. R. R. Co., 150 Pa. 50; Philadelphia Co. v. Traction Co., 165 Pa. 456; Leahan v. Cochran, 178 Mass. 566 (60 N. E. Repr. 382) ; Lowell v. Short, 58 Mass. 275; West Boylston v. Mason, 102 Mass. 341; Westfield v. Mayo, 122 Mass. 100; Chicago v. Robbins, 67 U. S. 418; 2 Dillon, Munc. Corp., secs. 1032, 1033, 1034, 1035.
    It is not necessary to give the author of a nuisance, or to those whose wilful or negligent act caused the nuisance, a notice of the existence thereof. The nuisance in this case was occasioned by the construction of the conductors, without any provision being made to carry the water across or under the sidewalk and is a continual nuisance of which the defendants had notice: Gates v. Penna. R. R. Co., 150 Pa. 50; Fowler v. Jersey Shore Boro., 17 Pa. Superior Ct. 366; Reading v. Reiner, 167 Pa. 41.
    The casting of the water from the roofs of the buildings, through a large conductor, out upon the sidewalk, there to freeze in a ridge of ice, without making any provision to carry the same away, was clearly a nuisance : Brown v. White, 202 Pa. 297; Reedy v. St. Louis Brewing Assn., 53 L. R. A. 805.
    The landowner is not relieved from liability when he leases his premises having a nuisance thereon, and, therefore, the defendants were liable ; and this is the case in some instances, when the tenant might also be liable : Reading v. Reiner, 167 Pa. 41; Knauss v. Brua, 107 Pa. 85 ; Fow v. Roberts, 108 Pa. 489 ; Wunder v. McLean, 134 Pa. 334 ; Brown v. White, 202 Pa. 297; Kirchner v. Smith, 207 Pa. 431; Lewin v. Pauli, 19 Pa. Superior Ct. 447; Reedy v. St. Louis Brewing Assn., 53 L. R. A. 805; 2 Shear. & Red. Neg., sec. 709.

      >S. W. Dana, with him D. B. Kurtz, Aaron L. Hazen, Oscar L. Jackson and Richard F. Dana, for appellees.
    There was no negligence on the part of defendants for whicli Dean could have recovered against them and consequently the city can have no recourse over upon them: Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550 ; Chicago v. Robbins, 67 U. S. 418; City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475, 486; Inhabitants of Lowell v. Boston, etc., R. R. Co., 40 Mass. 24, 34; City of Rochester v. Campbell, 123 N. Y. 405 (25 N. E. Repr. 937); Moore v. Gadsden, 93 N. Y. 12.

      In this case, the owners being out of possession, the premises being in the possession of their respective tenants, and the landlords being under no obligation by contract to keep the sidewalk in repair, the owners would not be liable to persons who .might be injured by defects arising in the sidewalk for want of repairs while so in possession of the tenants : Bears v. Ambler, 9 Pa. 193; Early v. Ashworth, 15 W. N. C. 142; Towt v. Philadelphia, 173 Pa. 314 ; Grier v. Sampson, 27 Pa. 183 ; Lohr v. Philipsburg Boro., 156 Pa. 246; Duncan v. Philadelphia, 173 Pa. 550; Mintzer v. Greenough, 192 Pa. 137; Pittsburg v. Fay, 8 Pa. Superior Ct. 269; Pittsburg v. Daly, 5 Pa. Superior Ct. 528.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

This was an action by the appellant to recover, from the appellees the amount of a verdict that it was by suit compelled to pay to a person who had been injured by a fall caused by a ridge of ice formed in front of and upon the pavement of the properties owned by the appellees and occupied by tenants. The liability of the appellant in that action sprang from the actual notice to it, of the dangerous condition of the ice upon the pavement and after such notice its neglect to remove it. The proof there was that its street commissioner had express notice of the ridge of ice that caused the accident and its dangerous character. Having such notice and having failed to perform its duty and having been mulcted in damages for such failure of duty, appellant now seeks to recover the amount of such damages from appellees, who had no notice or knowledge of the condition of the ice on the pavement and whose properties were in the occupancy of tenants.

The principle underlying the right to be reimbursed for damages paid by a municipality in cases of accident is that the owner or occupier of the property, as the case may be, is primarily liable to the person injured. The right of subrogation springs from that liability. The primary liability in that case was upon the appellant. It assumed the duty of removing the ice. By its ordinance it required owners, tenants or occupiers of properties to remove the ice in front of the same before ten o’clock of the next day after its accumulation and failing to do -so to be liable to a fine, and in case the owner or occupier did not remove wlien so required, it undertook to do so. Tho appellant having undertaken that duty had express notice of the condition of the ice and the necessity for its removal. Thus its negligence arose directly from its failure to perform it. It now practically seeks to have a right of subrogation for the repayment of the damages which were the direct consequence of its own negligence. It is an attempt therefore to make a wrong and not a right, the basis of such subrogation.

In Smith’s Public Corporations, volume 2, section 1305, it is said:

“ But when a charter imposes upon lot owners the duty of keeping the sidewalk in repair, and free from snow or ice or other obstructions, and also provides that tho superintendent of streets should repair any sidewalk where the owner of the property neglected to repair the same for a fixed number of days after the service upon him of a written notice so to do, and that the superintendent should collect the expense of such repair from the owner of the property, it only imposes upon the owner a statutory liability for the expense of such repairs. It does not directly and specifically make him liable for any damages in case of personal injuries to persons from a failure to keep such sidewalks in repair and the municipality, though it may in an action be held liable to the person injured and pay the same, cannot maintain the action against the lot owner for indemnity.” He there cites numerous authorities to sustain the above.

The failure of the appellant to remove the ice ridge in question with notice of its dangerous condition or to give notice to the tenants to remove it promptly, or in case of their failure, to do so at their expense, negatives an equal liability basis upon which to build a right in equity for subrogation, against the appellees, the owners of the property, not in occupancy, and without the slightest knowledge or information in regard to the condition of the pavement, but in any contingency the right to reimbursement by appellant could only spring from a liability of the appellees, which Dean, who recovered a verdict against the appellant, might have enforced against them. They were the owners of the properties and their tenants were and had been for many years the actual occupiers of them. The accident was not caused by the bad condition of the pavement or its want of repair, but by a sudden accumulation of ice to which water from the buildings may have contributed. It was an unusual condition produced by the elements and seemed to have had no similar recurrence in a period of many years. Whatever the duties of the tenants to keep the pavements free and clear of ice may have been, the appellees, out of possession, with the pavement in proper repair and the properties properly constructed and also in proper repair, were not bound to keep watch and guard over the pavement to prevent the formation of ridges of ice upon it, and if so they cannot be held liable for an injury consequent upon a sudden accumulation of ice there.

In Lohr v. Philipsburg Borough, 156 Pa. 246, Mr. Justice Mitchell said:

“ In the recent case of Burns v. Bradford City, 137 Pa. 361, our Brother McCollum said : ‘ A municipal corporation is not an insurer against all defects in its highways, but it is answerable for negligence in the performance of its duties in the construction and care of them. For a defect arising in them without its fault or neglect, it is. not liable, unless it has express notice, or the defect be so notorious as to be evident to all passers.’ ” It was accordingly held in that case that although “ It is a fact well known to the inhabitants of all our municipalities that sidewalks are liable in the winter to be thrown out of level by the action of the frost ” yet the plaintiff .who was injured, very much in the same manner as the present plaintiff was, by the stringers of a plank walk being raised higher on one side than the other, could not recover without proof that the defect was observable by all passers. So here, the proper instruction to the jury should be that the borough was bound to keep a reasonable supervision over the condition of its sidewalks, but it was not liable for negligence unless it had actual notice or knowledge of the defect complained of, or it was so plain to observation and had existed so long a time that officers exercising a reasonable supervision ought to have observed it.

The primary liability on the part of the owner out of occupancy may arise where the injury is the result of negligence springing from a failure to repair a pavement, but where no such condition exists and there is no failure of duty in regard to any repairs, no negligence can be said to bo attributed to him. There was no evidence in this case that the pavement was in a bad condition or out of repairs and none that there was danger by reason of the failure to construct across it a gutter to the street. No such gutters were laid across pavements in the locality and none required. This is apparent from the fact that there was no proper storm gutter in the street to carry off water and especially so in the case of appellees’ pavement, as a telegraph pole over a foot in diameter had been erected, under the direction of appellant’s engineer, directly opposite the waterspout from appellees’ property, which precluded the construction of a small gutter. It is, however, manifest that if even a small gutter had been constructed across the pavement, under the stress of the intense weather which caused the ridge of ice upon the pavement, it would not have successfully operated to prevent such accumulation. It follows then that unless there was a failure of duty on the part of the appellees in the construction of a water pipe as resulted in a nuisance per se, continuing as such, no liability on their part could arise. The conductor or waterspout was constructed at the time of the erection of these houses some twenty years previous was such as was in common use, was proper and necessary to remove water from the roof of the houses, and was so recognized. As its construction was proper and as it was used for a necessary purpose and as it was not out of repair it was not a nuisance per se and the fact that a severe storm at some remote period of time might possibly cause an unusual flow of water, would not necessarily make it so.

There is no evidence that any such flow ever previously made any mischief. Such being the case there was no such failure of duty on the part of appellees as to be the foundation of any liability.

The case of Brown v. White, 202 Pa. 297, was a case in which the construction was a nuisance per se and the owner’s liability was placed distinctly upon that ground and Mr. Justice Mestrezat, quoting from the case of Knauss v. Brua, 107 Pa. 85, says:

“ But the converse of this proposition is also true; if the premises are so constructed, or in such a condition, that the continuance of their use by the tenant must result in a nuisanee to a third person, and a nuisance does so result, the landlord is liable.”

The learned trial judge was not guilty of error in giving binding instructions for the appellees and this judgment is affirmed.

Mestrezat and Potter, JJ., dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Watson, Appellant, v. Smith.

      Will—Construction—Devise—Gift to heir—Personal estate.

    Testator devised a farm to his only son and only living child, subject to payment of debts and legacies. By a second clause he bequeathed to his son all of his personal estate. Then after giving certain, legacies, including one to his son, he directed that the children of a deceased daughter “shall be made to share equally with my son after all legacies named herein shall have been paid, then each child of my deceased daughter named above shall be entitled to receive their share of one half which remains.” Held, that the children of the daughter took no interest in the farm devised to the son.
    The intention of a testator to favor an only son by a devise of land to him in fee simple cannot be waived aside by ambiguous or equivocal direction; and even if there be doubtful expressions, that construction of the will will prevail which will support the main intention.
    Argued Oct. 21, 1904.
    Appeal, No. 161, Oct. T., 1904, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1903, No. 179, for defendants non obstante veredicto in case of James S. Watson et al. v. Albert J. Smith and Johnson C. Smith.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Ejectment for land in Amwell Township. Before Taylor, J.
    The jury returned the following special verdict:
    And now, November 27, 1903, the jury impaneled and sworn in this case do find for the plaintiffs for the land claimed in thé plaintiffs’ declaration, to wit: the undivided One half of the tract of land described in the writ (excepting thereout the underlying coal of the Pittsburg or River vein), subject to the opinion of the court upon a question of law reserved, arising upon the following facts, which are found by the jury, to wit:
    1. James Smith, Sr., now deceased, was on July 29, 1900, and from that time onward until his death, seized in fee simple of the tract of land described in the writ.
    2. On July 29, 1900, the said James Smith, Sr., made and executed his last will and testament bearing date said day, whereby he disposed of his estate in the following words, to wit:
    “First—I give, and devise to my son Johnson C. Smith, his heirs and assigns, my farm situate in Am well Township, subject however to the payment of my debts and the legacies given in this my last will and testament.
    “Second—I give and bequeath to my son JohnsonC. Smith and his heirs and assigns, all my personal estate of every description.
    “ Third—I bequeath to my son Johnson C. Smith the sum of One Thousand Dollars ($1,000).
    “ Fourth—I give and bequeath to Laura Day, wife of Elijah D. Day, the sum of Three Hundred Dollars ($300.00) said sum to take precedence of all other bequests herein given.
    “ Fifth—In lieu of dower I give and bequeath to my wife Sarah Smith so long as she remains my widow, or so long as she may live, annually the legal interest on the one-third of the value which shall be fixed or appraised on my farm devised to my son Johnson C. Smith. I charge the same on the land above mentioned.
    “ It is my desire that the children of my daughter Sarah Elizabeth, who was intermarried with D. D. Watson, shall be made to share equally with my son Johnson C. Smith, (i. e.) after all legacies named herein shall have been paid, then each child of my deceased daughter named above shall be entitled to receive their share of the one half which remains.”
    (Then appoints Johnson C. Smith, executor.)
    3. The said James Smith, Sr., died on August 15,1900, without revoking the said will, which after his death was duly probated before the register of wills of said county, and is of record in the office of said register in Will Boob, No. 17, page 524. Letters testamentary thereon were by said register issued to Johnson C. Smith, one of the defendants, who was named therein as executor. By writing filed with said register on April 11, 1901, Sarah Smith, widow of said testator, declined to take under the said will and elected to take under the intestate laws.
    4. James Smith, Sr., in his lifetime gave to J. A. Ray an option to purchase the Pittsburg or River vein of coal underlying the tract of land described in the writ. Notice of acceptance and election to purchase said coal thereunder was given by the holder of said option on August 15, 1903, and after the death of said testator, in pursuance of a decree of specific performance made to No. 14, May Term, 1901, of the orphans’ court of said county, the executor aforesaid, with the widow, conveyed the said Pittsburg or River vein of coal to the Johnetta Coal Company, assignee of said J. A. Ray.
    5. Out of the moneys arising out of the sale of the coal aforesaid, and other moneys of the estate of said testator, the said executor paid, prior to the commencement of this action, the legacies to said Johnson C. Smith and Laura Day, bequeathed in the will aforesaid.
    6. The plaintiffs are the children, and all of the children, of the testator’s “ daughter Sarah Elizabeth, who was intermarried with D. D. Watson.” The said Sarah Elizabeth died prior to the date of said will.
    7. Johnson C. Smith, one of the defendants, by his tenant, Albert Smith, the other defendant, is in the possession of the whole of the tract of land described in the writ (excepting the coal aforesaid), and was so in possession at the date of issuing the writ.
    The question reserved, as aforesaid, for the opinion of the court, is whether the aforesaid will of James Smith, Sr., gives to the plaintiffs an interest in the tract of land aforesaid. If the court should be of opinion, upon the facts above stated, that the plaintiffs, under and by virtue of said will, are invested with title to the undivided half part of the tract of land aforesaid (excepting the aforesaid coal), then judgment to be entered upon the verdict in favor of the plaintiffs ; but if the court should be of opinion that the plaintiffs are not entitled under said will to any interest in said land, then judgment to be entered for the defendants non obstante veredicto.
    The court entered judgment for the defendants non obstante veredicto.

      Err or assigned was the judgment of the court.

      James I. Brownson, with him John W. JDonnans and Alvin .Donnans, for appellant.
    One of the well-established rules for the construction of wills is that an heir can be disinherited only by express words or by necessary implication : Geisinger’s App., 1 Mona. 600; Faulstich’s Est., 154 Pa. 188; Weber’s App., 17 Pa. 474, 479.
    So, where the words of a will are capable of two interpretations, that construction is to be preferred which more nearly conforms to the intestate law: Grim’s Appeal, 89 Pa. 333, 335.

      John H. Murdoch, with him Edgar B. Murdoch, for appellee.
    Technical or definite words used in a will must be construed according to their legal or definite effect: Curry v. Paterson, 183 Pa. 238; Carroll v. Burns, 108 Pa. 386.
    The entire will and every word and sentence of it are, if possible, to be so construed that all the parts of the will may stand together. Each is to be given full effect if possible: Edmonson v. Nichols, 22 Pa. 74; Schott’s Estate, 78 Pa. 40.
    Where it appears from the face of a will that one person is made to be the first taker of an estate, or is made the favorite or principal object of the testator’s bounty, the law presumes that it was the intention of the testator to favor that person and the will will be construed in the light of that intention: McFarland’s Appeal, 37 Pa. 300 ; Wilson v. McKeehan, 53 Pa. 79; Jackson’s Estate, 179 Pa. 77.
    While there is no doubt that of two contradictory clauses in a will the first must give way and the last take effect, yet the two clauses must refer to the same subject-matter, and the last must be clearly inconsistent with the first. If the main provision plainly covers the whole subject, and is defined in terms that exclude all doubt, and the subsidiary provision may by conjecture be made either general or partial, and may be capable by construction of either subverting entirely or of modifying only the original gift, such subsidiary provision must in the ordinary case be confined to its partial and restricted operation.
    The clearly expressed purpose of a testator is not to be overborne by modifying directions that are ambiguous and equivocal and may justify either of two opposite interpretations. Such directions are to be so construed as to support the testator’s definitely announced main intention: Sheetz’s Appeal, 82 Pa. 211; Snively v. Stover, 78 Pa. 484 ; Horwitz v. Norris, 60 Pa. 261; Shreiner’s Appeal, 53 Pa. 106 ; Hart v. Stoyer, 164 Pa. 523; Jones v. Strong, 142 Pa. 496.
    Although an estate of inheritance given in one clause of a will may be cut down by subsequent clauses, the intent must unequivocally appear on the face of the will: Krebs’s Estate, 184 Pa. 222.
    The primary fund for the payment of legacies is the personal estate and, although the legacies may by the will be charged upon the real estate, this does not have tlie effect of exonerating the personal estate, unless such intention be clearly expressed: Eavenson’s App., 84 Pa. 172 ; Hoff’s App., 24 Pa. 200 ; Riegelman’s Estate, 174 Pa. 476.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

The title to the land involved in this ejectment depends upon the construction of the will of James Smith, Sr., deceased. By his will, in the first paragraph, he devises his farm to his son, Johnson C. Smith (one of the appellees) his heirs and assigns, subject to the payment of his debts and certain legacies ; in the second he devises to his son all his personal estate; in the third he devises $1,000 to his son; in the fourth he devises $300 to Laura Day and, finally, he concludes it by the following: “It is my desire that the children of my daughter Sarah Elizabeth, who was intermarried with D. D. Watson, shall be made to share equally with my son Johnson C. Smith (i. e.) after all legacies named herein shall have been paid, then each child of my deceased daughter named above shall be entitled to receive their share of the one half which remains.” It is clear that the first taker, Johnson C. Smith, was the principal object of the testator’s bounty. The law presumes an intention to favor him and the construction of his will will be made in the light of such intention: McFarland’s Appeal, 37 Pa. 300; Wilson v. McKeehan, 53 Pa. 79. Such purpose of a testator evidenced by his will cannot be waived aside by ambiguous or equivocal directions, and even if there be doubtful expressions, that construction of the will will prevail which will support the main intention. His first intention, as expressed in the first paragraph of his will, was to give to his son an estate of inheritance, devising the farm to him and his heirs and assigns, and an intention to cut it down by a subsequent paragraph must appear unequivocally: Krebs’s Estate, 184 Pa. 222.

The words of the last paragraph do not express unequivocally such intent. They are that “ the children of his daughter, Elizabeth, shall be made to share equally with his son, Johnson C. Smith,” and then by way of definite explanation he adds, “ after all the legacies named herein shall have been paid, then each child of my deceased daughter named above, shall be entitled to receive their share of the one half which remains.” The words “ legacies,” “ to receive ” and the words “ their share of the one half which remains,” clearly have reference to personalty, that being primarily chargeable with the payment of legacies. While they are made chargeable in the first paragraph upon the farm, there is nothing in the will to show a plain intention to exonerate the personalty from their payment. There is, therefore, no repugnance between the first and last paragraphs of the will and as there are no unequivocal expressions of an intention by the testator to cut down tbe estate of inheritance devised to his son in the first paragraph, the appellants were not entitled to recover in this action of ejectment, and tbe judgment is affirmed.


author: Mb. Justice Mestbezat,

text:
    Brock v. Lawton, Appellant.

      Arbitration—Award—Parties—Affidavit of defense.

    Where a bill in equity is filed by an individual against two individuals and two corporations to compel the delivery to the plaintiff of certain shares of stock, or in the alternative to pay to the plaintiff the value of such shares, and the plaintiff and the two individual defendants agree to arbitrate their differences, a subsequent award cannot be objected to because (1) it fixed the liability of the two individual defendants jointly and not severally, or (2) that it failed to make any finding for or against the two corporations defendant, or (3) because it was in the alternative of either a transfer of the stock, or payment of the value of the stock.

      In. an action on such award an affidavit of defense that the stock was not worth the value placed on it by the arbitrators is insufficient, inasmuch as the value of the stock was one of the questions submitted to them.
    Argued Oct. 24, 1904.
    Appeal, No. 17, Oct. T., 1904, by-defendants, from order of C. P. No. 1, Allegheny Co., Sept. T., 1903, No. 991, making absolute rule for judgment, for want of a sufficient affidavit of defense, in case of Lem S. Brock v. C. B. Lawton, alias Charles B. Lawton and W. B. Lawton, alias William B. Lawton.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit on an award of arbitrators.
    Rule for judgment for want of a sufficient affidavit of defense.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      Thomas Stephen Brown, with him William Gr. Stewart and S. W. Cunningham, for appellant.
    The award of the arbitrators, to be valid, must conform to, and be coextensive with, the terms of the submission; and it must be complete, final and decisive of the issues submitted by the parties, so that it may be definitely complied with by the party against whom it is rendered, and that such compliance will give him complete repose from and an end of the controversy. . Finality is an essential feature: Morse on Arbitration, pp. 341, 346, 384; 3 Cyc. 693, 698; Johnston v. Brackbill, 1 P. & W. 364, 369; Spalding v. Irish, 4 S. & R. 322; Connor v. Simpson, 104 Pa. 440 ; Hamilton v. Hart, 125 Pa. 142, 149; Alfred v. R. R. Co., 92 Ill. 609 ; Carnochan v. Christie, 24 U. S. 446.
    An award must decide respecting all parties to the submission, as well as respecting all the subject-matter: Winter v. Munton, 2 Moore, 723; Turner v. Turner, 3 Russ. 494; Rees v. Waters, 16 M. & W. 263; Winter v. White, 1 Brod. & B. 350.
    An award which leaves something still to be done by the arbitrator himself before the existing controversy is terminated, cannot be said to be final: Sutton v. Horn, 7 S. & R. 228; Hamilton v. Hare, 125 Pa. 142; Shoemaker v. Meyer, 4 S. & R. 452; Williams v. Landon, 14 S. & R. 338.

      Franklin P. lams, with him Cyrus C. Brook and Henry A. Jones, for appellee.
    The Commercial Building Company and the Mortgage Banking Company are not parties to this suit; they are not complaining of the award; because it is palpably in their favor. If the plaintiff iii this case should bring suit at any time against either the Commercial Building Company or the Mortgage Banking Company, the award in this case would be a complete bar: Lentz v. Stroh, 6 S. & R. 34; South’s Administrators v. South, 70 Pa. 195; Santee v. Keister, 6 Binney, 36.
    All agreements to arbitrate at common law are compromises. The parties to the submission simply agree to abide by the judgment of the arbitrators selected, instead of going to law: McCune v. Lytle, 197 Pa. 404, at p. 412; Grier v. Bilger, 13 Pa. 58; McCahan v. Reamey, 33 Pa. 535.
    An award directing a party to perform a certain act, or in the alternative to do something else, both alternatives being certain, will be sustained as final: Hanson v. Webber, 40 Me. 194; Thornton v. Carson, 11 U. S. 596; Wharton v. King, 2 B. & Ad. 528; Lee v. Elkins, 12 Mod. 585; Simonds v. Swaine, 1 Taunt. 549.
    December 31, 1904:
   Opinion by

Mb. Justice Mestbezat,

By an agreement in writing, dated July 31, 1903, between the plaintiff of the first part and Charles B. Lawton and William B. Lawton, the defendants, and the Commercial Building Company (formerly the Lawton Mortgage Company) and the Mortgage Banking Company of the second part, the parties submitted certain differences between them to three arbitrators, named in the agreement, whose award was to be final and conclusive, each party waiving the right to appeal therefrom. These differences are stated in a recital clause of the reference agreement as follows : “ Whereas, differences have arisen between the above named parties in reference to the ownership of certain capital stock of the Lawton Mortgage Company, now the Commercial Building Company, and afterwards exchanged for a like number of shares of the capital stock of the Mortgage Banking Company, as well as certain dividends that have been declared upon said capital stock from time to time, which differences are more particularly enumerated and mentioned in a certain printed bill and the several answers .thereto made respectively by Charles B. Lawton, William B. Lawton and the Commercial Building Company joining in one answer, and the said Mortgage Banking Company answering for itself separately, which bill and answers are hereto attached and made part hereof.” Pursuant to the terms of the submission the arbitrators, after hearing the parties, made an award on August 18, 1903, the material parts of which are the following: “ First. That the defendants, C. B. Lawton and W. B. Lawton, assign, transfer and set over to the plaintiff, Lem S. Brock, eighty (80) shares of the stock of Mortgage Banking Company, and if that be impossible by reason of the prior transfer of the same by the said C. B. Lawton and W. B. Lawton to innocent parties for value, then we find the value of said stock to be sixteen thousand dollars ($16,000), and direct that said amount be paid by said C. B. Lawton and W. B. Lawton to the said Lem S. Brock. Second. We find in favor of said plaintiff, Lem S. Brock, and against defendants, C. B. Lawton and W. B. Law-ton, the sum of sixteen hundred dollars ($1,600), dividends accrued on said stock, less three hundred and fifty dollars and thirty five cents ($350.35) set off allowed to the defendants, making the net amount due on account of dividends to the plaintiff, twelve hundred and forty-nine dollars and seventy cents ($1,249.70).”

C. B. Lawton and W. B. Lawton having refused to comply with either alternative of the award, this action was brought against them to recover the value of the eighty shares of stock and dividends thereon directed to be paid to the plaintiff by the award. In the statement it is averred, inter alia, that a copy of the award was furnished the defendants and that they refused upon request to assign and transfer the eighty shares of stock or pay the plaintiff the value thereof, and also refused to pay him the dividends on said stock as required by the terms of the award. The defendants filed an affidavit of defense in which they do not deny these allegations in the statement - but aver as a defense “ that the alleged award of said arbitrators, a copy of which is attached to the plaintiff’s statement, did not and does not fulfill the • terms of said agreement and submission, and is not certain, final, definite and decisive as it should be, and as it was intended by the parties to said controversy that it should be.” As matters of defense they specify that the award is defective and insufficient for the following reasons: (1) That the pleadings show the holdings of the stock by defendants were separate and several and not joint and the award should have found how many shares, if any, each of the defendants should transfer to the plaintiff, or in the alternative stated how much money each defendant should have paid the plaintiff; and that the award should have made the same findings as to the dividends on the stock. (2) That the award should have made a finding for or against the Commercial Building Company and the Mortgage Banking Company, the two corporations which were the other parties to the reference agreement. (3) That the award being in the alternative, the arbitrators should have found whether or not it was possible to transfer the stock. The defendants further allege in their affidavit of defense that the stock is not worth the value placed on it by the arbitrators in the award and that the plaintiff cannot recover more than its actual value.

The plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which was made absolute by the court below, and judgment was entered against the defendants for the amount of money due the plaintiff by the terms of the award. The defendants have taken this appeal.

The plaintiff averred in his bill in equity, referred to and made part of the submission for ascertaining the differences between the parties, that he was entitled to 125 shares of the capital stock of the Mortgage Banking Company of the value of §200 per share, issued to C. B. and W. B. Lawton, and the dividends thereon ; and prayed inter alia that it be decreed that the defendants in the bill pay to the plaintiff the dividends on the stock and “ that the defendants transfer and issue to your orator 125 shares of the capital stock of the Mortgage Banking Company, or if that be impossible by reason of the previous transfer of said capital stock to innocent parties for value, then that defendants be decreed to pay over to your orator the value thereof. ” The ownership of this stock, held by the Lawtons, with the consequent right to compel them to transfer it to the plaintiff, was the principal and controlling issue submitted to the arbitrators as is disclosed by the reference agreement and conceded by counsel for defendants in their printed brief wherein they say: “ It was for the recovery of said 125 shares of stock of Mortgage Banking Company and dividends thereon that he (the plaintiff) made his claim and prepared his bill, and it was the question of his right thereto that was the chief point in the controversy submitted to the arbitrators.” The bill, it is true, avers fraud and collusion with defendants by the two corporations, the other parties to the reference agreement, to withold from the plaintiff the 125 shares of stock, but there is no averment in the bill nor was it alleged by any of the parties to this controversy that this stock and its dividends were owned, held or controlled by the corporations. Hence the real parties against whom the plaintiff was seeking relief in his bill were the Law-tons, the defendants in this action, and the award of the arbitrators finds that they are the parties who hold the stock of the Mortgage Banking Company and its dividends which belong to the plaintiff.

The contention of the appellants that the award is defective in not finding how many shares of the capital stock of the Mortgage Banking Company each of the defendants should transfer to the plaintiff we do not regard as tenable. It was averred by the plaintiff that of the capital stock of the Mortgage Banking Company issued to and held by the two defendants, 125 shares thereof should have been issued to him. The arbitrators find and award, however, that eighty shares of the stock held by the defendants should have been issued to the plaintiff. The award is strictly in accord with the submission. The plaintiff did not allege that each of the defendants held any specific number of shares of stock which he was entitled to have transferred to him but averred that of the whole number of shares held by both defendants they should transfer to him 125 shares. The issue was thus made up and submitted to the arbitrators. If the defendants desired that any issues between themselves should be decided by the arbitrators a stipulation to that effect should have been made a part of the reference agreement. The only issues however presented for the consideration of the arbitrators were between the plaintiff of the one part and the other parties named in the agreement of the other part, and the award necessarily followed the submission. The plaintiff’s allegation is that the Lawtons, acting together in committing the wrong against him, had. the 125 shares of stock issued to themselves and that it is now incumbent upon them to have a like amount of the stock transferred to him. How they divided the stock issued to them between themselves is no concern of the plaintiff nor of the arbitrators under the submission. The arbitrators find the Lawtons got and now hold the stock. Whether it was issued to them jointly or severally is immaterial and not an issue covered by the submission. Their duty is to deliver it to the plaintiff or pay him the ascertained value of it. It might have been more satisfactory to the defendants if the arbitrators had determined how many shares of stock each of the defendants should transfer to the plaintiff, thereby adjusting the differences of the defendants inter se but, as suggested above, the only purpose of the arbitration, as disclosed by the reference, was to settle the dispute between the plaintiff as a party of the one part and the other parties to the agreement of the other part. This the award does.

The failure of the arbitrators to make a specific finding for or against the Commercial Building Company and the Mortgage Banking Company does not vitiate the award. The bill avers that the Lawtons agreed with the plaintiff to have issued to him 125 shares of the capital stock of the Lawton Mortgage Company, incorporated, in consideration of his permitting them to sell and transfer his interest in the Lawton Mortgage Company, unincorporated, and that they had this stock issued to themselves. There is no allegation that the corporations were parties to this agreement or hold any of the stock which is the subject of this controversy. The averment in the bill against them is that they fraudulently conspired with the Lawtons to prevent the transfer to the plaintiff of the 125 shares of stock, but whether the stock was owned or held by the corporations was not an issue raised by the proposed equity proceedings and hence was not before the arbitrators for adjudication. If, however, it was an issue for adjudication by the arbitrators, their failure to make any finding on the subject as to the corporations may very properly be regarded as equivalent to a finding in their favor. Mr. Justice Duncan, delivering the opinion of the court in Lentz v. Stroh, 6 S. & R. 34, says : “ The rule of arbitration was taken out by the two Strohs alone; .... they award that Nicholas Stroh, the elder, shall pay the plaintiff eleven dollars damages, with costs of suit. In all fair construction, this amounted to a finding in favor of Stroh, the younger; and I think it would be so considered on a verdict; for the court would mold it into form. . . . Giving the award this fair and liberal construction, the implication is a manifest and necessary one that the arbitrators finding against one defendant only, they acquitted the other.”

■ It is further contended by appellants that the award is bad because it is conditional or alternative and therefore not final or decisive. That an award may-be made in the alternative is well settled. In Morse on Arbitration, 403, the learned author says : “An award made in the shape of alternatives is not uncommon, and is considered to be ‘sufficiently certain and final.’ ” In 3 Cyclopedia of Law and Procedure, 696, where numerous authorities are cited to sustain the text, it is said: “An alternative award is good if it finally determines the matters submitted, but only gives to the party charged an option to discharge his liability in-one of two ways, or if it orders one thing to be done or, in default thereof, another thing.” In Thornton v. Carson, 11 U. S. 596, it is held by the supreme court of the United States that “ an award is not void because it is in the alternative, and contingent, nor because one of the alternatives requires the party to do an act in conjunction with others, not parties to the award, and over whom he lias no control.” The action there arose out of two suits brought by Carson against Thornton upon two bonds for the payment of money. The suits were referred to arbitrators who awarded that each suit should be marked settled when the defendant complied with certain conditions named in the award. If he failed to comply with these conditions, judgment was to be entered for the plaintiff in each suit for the amount of money stated in the award. On exceptions to the award, the trial court entered judgment for the plaintiff for the amount of money mentioned in the award. On appeal, it was argued by the defendant that the award was uncertain, unreasonable, contingent and conditional, and was not final. In his opinion, affirming the judgment, Mr. Justice Washington states the findings of the award as follows: “ The plaintiff is required, in conjunction with certain other persons, to convey to the defendant, for the benefit of himself and the heirs of Thomas Carson, on or before a fixed day, certain property specified in the award, or to pay the amount of the two bonds in suit. If he made the conveyance, then the referees have awarded certain property to the defendant; and if he failed to do this, judgment was to be entered against him, for the amount of those bonds.” In commenting upon the duty of the defendant under the award, Justice Washington says : “ The defendant had his election to do either (of the alternatives) ; and upon satisfying the court, at the time he was required to show cause why judgment should not be entered on the award, that he had made such a conveyance as the award prescribed, the court ought to have ordered the suits to have been entered ‘ settled.’ . . . But the plaintiff having failed to perform the act, upon which alone this transfer was to be made and the suits were to be entered ‘ settled,’ became liable to pay the sums awarded by the referees as the equivalent for the property to be conveyed, and consequently the court was right in entering the judgment for the sums awarded.”

Under these authorities it is clear that the award before us is not defective or insufficient, because it is in the alternative. Anticipating that the Lawtons, in order to defeat the transfer of the stock to the appellee, might have sold and assigned it to an innocent holder, the appellee, to provide against the contingency, prayed in his bill that they be directed to pay him the value of the stock. The reason for stating this prayer of the bill in the alternative is equally cogent in requiring the arbitrators to attach the same conditions to their award. Both alternatives are certain and final. The appellants could, by complying with either condition, have discharged their liability to the appellee and have satisfied the award. But it is averred in the statement of claim that the appellants refused upon request to transfer the stock or to pay its value, which, not being denied in the affidavit of defense, must be taken to be true. As they refused to assign and transfer the eighty shares of stock issued to and held by them, and which the arbitrators found to be the property of the appellee, they must pay its value with accruing dividends. And it is immaterial what reason the appellants may have for refusing to transfer the stock. Being the property of the appellee, as found by the award, its possession and detention by the appellants authorized the recovery of its value by an action on the award.

We cannot consider the contention of the appellants that the stock is not worth the value placed on it by the arbitrators, and. that the appellee cannot recover more than its actual value. That was one of the “ differences ” submitted to the arbitrators, and their finding under the stipulation in the reference agreement is conclusive on both parties.

The judgment is affirmed.


author: Mr. Justice Thompson,

text:
    Welch v. Miller, Appellant.

      Partnership—Accounting for profits—Single transaction—Assumpsit— Equity.

    Where a partnership is for a single transaction such as the purchase and resale of a particular piece of real estate, one partner does not have to maintain against another a bill in equity for an accounting and for the share of the profits, but he may proceed in law by assumpsit.
    In an action of assumpsit it appeared that the two plaintiffs had entered into an agreement with the two defendants to purchase and resell a piece of real estate, the profits of the transaction to be divided one half to plaintiffs and one half to defendants. One of the defendants contended that he only received a small portion of the sum in question from his associate. Held, that the contention could not be maintained as a defense, since he was joint!}' liable for the whole amount claimed by plaintiffs.
    In the above case the defendants contended that as a mortgage had been taken for a share of the purchase money, and as this had not become due or been paid, the action was premature. The affidavit of defense denied the contract, and the case was tried on that issue alone. Held, that under the circumstances it was too late to claim that the action was premature.
    Argued Oct. 24, 1904.
    Appeal No. 66, Oct. T., 1904, by defendant, from judgmentofC. P. No. 1, Allegheny Co., Sept. T., 1902, No. 490, on verdict for plaintiff in case of William Welch and Charles E. Pool v. William A. Miller and Christ. S. O. Tinstman.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit for profits on a partnership transaction. Before MacFarlane, J.

      The court charged as follows :
    [This case turns upon a question of fact, was there a contract made in April, 1902, between these two plaintiffs and the two defendants, that the defendants would get an option on this farm near Stewart Station, the plaintiffs getting a purchaser and that they would divide the profits.] [1] Any arrangement that may have been made between these plaintiffs and Mr. Tintsman would not entitle them to recover unless Mr. Miller was brought into the transaction. If Mr. Tintsman merely agreed with these men to divide his profits or his commissions, then there would be no recovery here, because there is no evidence that he was an agent for Mr. Miller, and no evidence that would authorize you to find that he could speak for Mr. Miller. So that the conversations between Mr. Tintsman and Mr. Welch and Mr. Pool are, so far as Mr. Miller is concerned, only important here as they may throw light on all the circumstances, together with the conversations that Mr. Pool testifies to having occurred on their way up to the farm, the conversation with Mr. Miller. Those tilings taken together may satisfy you that Mr. Miller had made some such contract.
    The contention of the plaintiffs is that it was a division of profits in the resale of this property. The contention of Mr. Tintsman is that he was to divide his profits, or as he says, his commissions, or whatever words he used. He said he used the word “ commissions ” and it is argued by the defendants that this is a reasonable explanation of the whole matter and that that is all there was in it. The defendants give you various circumstances, and taking the whole case they have argued that the probabilities are that that was all there was in it; and particularly the course of conduct of Mr. Miller; that he acted as a man would who had no arrangement with anybody except Mr. Tintsman and that that was to pay him a commission, and that whatever arrangement Mr. Tintsman might have made with other people was none of his business.
    On the other hand, Mr. Pool, for the plaintiffs, testified that he talked with Mr. Miller on the way up to the farm, and that Mr. Miller said to him something to this effect, that he understood that the arrangement between them was that he, Pool, would get a purchaser and “ we are to get the option and we will divide.” That, if believed by you, is evidence from which, taken in connection with the other matters, you might find that there was such a contract. It is necessary in order to make out a contract, that the people should agree, that their minds should meet on a common basis, and if Mr. Miller was talking about the profits the same as Mr. Pool was, that would be sufficient to make a contract; their minds would meet then on a common footing. But if such conversation did take place and Mr. Miller was talking about the division of commissions between Mr. Tintsman and these men, you will see that they would not have understood each other and their minds would not have met on a common basis.
    That is practically all there is in it. Mr. Tintsman says that is was about half of his profits, and these men say that it was about half of the whole profits made by all of them. The general surroundings of the case, all of the circumstances, the appearance and manner of the witnesses are entirely for you. It is not a question whether these men earned their commission or not; it is not a question whether they did more work than Mr. Miller and Mr. Tintsman. That has nothing to do with it. Itis a mere question of a bargain. Whether it turned out to be a good bargain or a bad bargain has nothing to do with it. Did these people agree as claimed by the plaintiffs ? If they did not, your verdict must be for the defendants, because the question of commissions is not in this case. If that was all there was in it these men have their remedy and can claim their commissions. They are claiming here on a different contract, so that you cannot say, “Well, they are entitled to at least $200,” because that would be for another case. So that your verdict will be either for the plaintiffs in the amounts which counsel will give you, whatever it is, with interest, or it would be a straight verdict for the defendants.
    [Counsel for defendants asks me to decide this case and not leave it to the jury. They have asked me to give peremptory instructions that under all the evidence the verdict should be for the deféndants. Bub this is refused because I think the case is properly in your hands and not in mine.] [8]
    Verdict and judgment for plaintiff for $3,083.70. Defendants appealed.

      Hrrors assigned were (1, 3) the instructions of the court as above.

      A. M. Thompson, with him J. R. McQuaide, for appellant
    The man who got comparatively nothing in this transaction, and. did not pretend to be other than a broker for a known principal, is saddled with the judgment for one half the profits, and the learned judge failed to adequately instruct the jury as to the position of Tinstman in the case, but left the jury to assume that he received his share.
    An action does not lie by one or more members of a partnership for an accounting where the defendant, or one of the defendants, received nothing for Avhich he was under legal obligation to account and did not have in his hands or is properly chargeable with any partnership property: Portsmouth v. Donaldson, 32 Pa. 202.
    By a long line of cases which it was held in this state that the only mode for the settlement of partnership accounts Avas by bill in equity or account render: Leidy v. Messinger, 71 Pa. 177; Crow v. Green et al., 111 Pa. 637.
    In this case it is undisputed evidence that Miller has not yet received in cash the sum for which this action is brought, but that more than the entire amount of profits for which Miller is charged is represented by the purchase money mortgage upon the property sold for the sum of $6,200, which still remains unpaid.
    A settlement of this question Avithout a decree by a court of equity apportioning this mortgage among the partners Avould be inequitable as against Miller, the one of the partners Avho advanced all the money and assumed all the obligations.

      W. H. S. Thomson, with him Daniel Harrison, for appellees.
    Under the facts of this case that assumpsit and not a bill in equity, is the proper remedy, avc think is clear under the authorities : Brubaker v. Robinson, 3 P. & W. 295; Meason v. Kaine, 63 Pa. 335; Jackson v. Emmens, 119 Pa. 356; Canfield v. Johnson, 144 Pa. 61; Howell v. Kelly, 149 Pa. 473 ; Kutz v. Dreibelbis, 126 Pa. 385.
    It is argued by appellant’s counsel in effect, that inasmuch as Miller took a mortgage for the balance of the purchase money, which was unpaid at the time the suit was brought, that this action is premature. That if the mortgage should prove uncollectible, that a money judgment in settlement of this transaction would be inequitable. This objection is disposed of and fully answered in the case of Benjamin v. Zell, 100 Pa. 33.
    December 31, 1904:
   Opinion by

Mr. Justice Thompson,

Three questions are raised by the assignments of error in this case. First, whether there was a joint liability on the part of the appellants, for which an action in assumpsit would lie. Second, whether one of the appellants not having received one half of the profits, but only a small sum described as commissions, was liable. Third, whether the action was premature by reason of one of the appellants having received in payment a mortgage which had not matured.

The appellants entered into an agreement with the appellees by which the former agreed to get an option to buy a certain farm, and the latter to procure a purchaser for it, the profits of the transaction to be divided between them, viz : one half to appellants and one half to appellees. The option was obtained, the purchaser procured, the transaction consummated and profits to the amount of $5,700 realized. The appellees in this action sued for one half of these profits. The verdict established the contract and the amount of profits derived from it. Appellants contended that the transaction was one of partnership and that the proper remedy was by bill in equity for an accounting and not by an action of assumpsit. The contract was a joint one and for a joint single transaction. It was closed and the exact amount of the profits was ascertained. The reason for the settlement of a partnership account through the medium of a bill in equity does not, therefore, exist and it is manifest that as an accounting is unnecessary, the transaction being a single one, an action of assumpsit will lie.

. In the case of Brubaker v. Robinson, 3 P. & W. 295, a case not dissimilar to the present one, the court below held that an action of assumpsit would lie and Mr. Justice Kennedy, in delivering the opinion, said :

“ For admitting that a technical partnership existed, of the correctness of which I very much doubt, there was but a single item, to be settled, the partnership, if such it may be called, being at an end. The whole scope of the agreement contemplated only the purchase of a single item of property, and the sale of it again and an equal division of the gain thereby made between them. It cannot be pretended that there is any necessity for the intervention of auditors to state and settle and account when the whole matter consists merely of the purchase of a single tract of land, and the sale of it again; and the question to be answered is how much, if anything, has been gained by the purchase and resale, after deducting the expenses attending it ? This can be ascertained with as much facility and certainty by a jury as by auditors, and the verdict of the jury at once closes and puts an end to all further controversy. Where the transaction is of such a nature as to render the calling in of auditors altogether unnecessary the action of account render may be very well avoided; for the prosecution of such an action is not only attended with more than double the costs and expenses but more than double the delay of assumpsit.”

Following the ruling of this and succeeding cases, Mr. Justice McCollum, in the case of Kutz v. Dreibelbis, 126 Pa. 335, says :

“ For firm moneys or assets received by a partner in his lifetime the ordinary rule is that his copartner cannot maintain assumpsit against him or his estate, but that he must resort to a bill for an account, or an action of account render. But to this rule there is an exception, and it is well settled that where there is a partnership in a single and finished transaction, one partner may maintain an action of assumpsit against the other : Brubaker v. Robinson, 3 P. & W. 295 ; Galbreath v. Moore, 2 Watts, 86; Wright v. Cumpsty, 41 Pa. 102; Finlay v. Stewart, 56 Pa. 183; Meason v. Kaine, 63 Pa. 335. In such case the accounts of the partners are adjusted and the plaintiff recovers his share of the proceeds of the transaction.

That the amount claimed in this case is the proceeds of the Lebanon Bridge contract is undisputed, and that Dreibelbis was a partner with Kutz in that contract is established by the verdict of the jury. But it is a case of partnership in a single transaction, which was closed in November, 1872. After that nothing remained to be done but to collect what was unpaid upon the contract.”

Appellants further contended that as Tintsman, one of the appellants, received but $200, described as commissions, from his associates, appellants were not entitled to recover against him. The evidence shows a single joint transaction in which there was a joint liability on the part of appellants to pay to appellees one half of the profits realized. The legal obligation to pay cannot be avoided successfully by one of the appellants by reason of the fact that he has received only a small part of the profits, by whatever name they may be designated by them, or by any arrangement which they may have chosen to make as to division between them. The joint liability under the contract entitled the appellees to recover against both appellants and this notwithstanding one of them may have received from the other less than his full share of the profits realized.

Appellants also contended that one of the appellants having received a mortgage for the balance of the purchase money and the same not being due, this action was premature and appellees were not entitled to recover. The affidavit' of defense denies the contract and the case was tried upon the issue whether the contract averred had been made and having gone to trial upon that issue and that issue only, it is too late to claim that the action was premature.

In the case of Benjamin v. Zell, 100 Pa. 33, Mr. Justice Mercur says :

“ It is further objected that the suit was prematurely brought, inasmuch as thé plaintiff in error took promissory notes for the consideration money, and they were not paid, when the suit was commenced. When asked to settle after he sold, and before suit was brought, he made no such objection. Neither then or on the first trial of the case does it appear that his refusal was put on the ground that he had not actually received all the money. The whole defense appears to have been a denial of the agreement alleged by the defendants in error, and now found by the jury. His receipt at the foot of the deed which he had executed admitted the receipt of the consideration money. He took the promissory notes as money. They were put in bank and all paid at maturity. He made no offer to turn over any of the notes, nor any request for defendants in error to wait until they were all paid.”

The assignments of error are not sustained and the judgment is affirmed.


text:
    Reed v. Pittsburg, Carnegie & Western Railroad Company, Appellant.

      Railroads—Eminent domain—Competency of witness—Evidence—Market value.

    In condemnation proceedings to assess the value of property taken for railroad purposes, witnesses are competent to express an opinion on the value of the property, who are residents of the vicinity, and show that they have a knowledge of the property, its location, its uses, its buildings, its environments, and of prices of sales made in the immediate vicinity and of the value placed upon the property by people there.
    Market value of land is generally based upon its extent, the character of its improvements, its productive qualities and upon sales of property in the vicinity.

      A ppeals—Review—Excessive verdict.

    The Supreme Court will only in exceptional cases, where there is some important reason for doing so, exercise its power to reverse a judgment based on a verdict alleged to be excessive. The court will generally in cases where verdicts are large, leave the parties to the remedy which rests in the discretion of the court, to be exercised upon motions for new trials.
    In a railroad condemnation case, where the proofs upon one side show a valuation of $9,000 and upon the other of $4,500, the Supreme Court will not reverse a judgment based upon a verdict of $9,000.
    Argued Oct. 24, 1904.
    Appeal, No. 71, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Dec. Term, 1901, No. 598, on verdict for plaintiff in case of Mary J. Reed v. Pittsburg, Carnegie & Western Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Appeal from report of jury of view. Before Brown, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $9,000. Defendant appealed.

      -Errors assigned were (1, 2) rulings on the evidence set forth in the opinion of the Supreme Court; (3) the whole charge, quoting it; (4, 5) that the court erred in not setting aside the verdict as excessive.

      W. M. Lindsay, with him A. M. Neeper, for appellant.
    The market value cannot be ascertained by evidence of particular sales for a particular purpose: Railroad Co. v. Patterson, 107 Pa. 461; Railway Co. v. Vance, 115 Pa. 325; Becker v. Railroad Co., 177 Pa. 252; Friday v. Railroad Co., 204 Pa. 405; Michael v. Pipe Line Co., 159 Pa. 99; R. R. Co. v. Patterson, 107 Pa. 461.
    The court should have defined what is meant by “ market valué.” That the failure of the court to do this was to render the charge inadequate and indefinite, and, therefore, error is apparent from the decisions of this court in analogous cases: Gilmore v. Hunt, 66 Pa. 321; Keil v. Gas Co., 131 Pa. 466; Pfeiffer v. Brown, 165 Pa. 267.
    A new trial should be granted upon the equities of the case, under the Act of May 20, 1891, P. L. 101, sec. 2: Smith v. Times Pub. Co., 178 Pa. 481.

      E. E. Fulmer, for appellee.
    December 31, 1904:
   Opinion by

Mb. Justice Thompson,

The first two assignments of error raise the question whether two of the witnesses who testified on behalf of the appellee showed a sufficient knowledge of the market value of her property taken for railroad purposes by appellant, to qualify them to testify in regard to it.

The property is situate in Bridgeville and the first witness testified that he knew of sales made in that locality and named parties who made them; that he knew the property involved in this suit and described it as a piece of property located upon the main street of Bridgeville and upon a thoroughfare and that it was a good business location with a frontage of a 100 or more feet and depth of 200 feet; that a Mr. Myers had made a sale to the "Wabash Railroad and that he made a sale of one of his own properties to the same company; that he knew how property was held there both as to price and value and that people generally held it from $50.00 to $100 per foot. That he had been in the real estate business and that he knew the market value in 1902 and that he knew by the prices that had been given by people who owned property there and named three persons who made such sales; that he fixed the market value from communication as to prices ; that his knowledge was based upon the selling and holding prices.

The second witness testified that he lived alongside of the property of appellee and described the buildings and their condition. He was in error as to the exact extent of its frontage. That he had inquired as to the value of real estate in the borough and that he had a general knowledge of the value of property there and that it kept advancing; that the place is a dear one and that this property is a valuable property. In response to a question by the court, he stated that from the information that he had as to selling prices and at which property was held, he would put the value on this property at between $40.00 and $50.00 per foot, and that it was worth twice or three times as much as that.

These witnesses show a knowledge of the property in question, its location, its uses, its buildings and its environment; of the prices of sales made in the borough and of the value placed upon property by people there. They were residents there and were therefore familiar with the value of property situate in the borough and their knowledge was derived from prices asked and sales made. The value of properties is generally a subject of more than ordinary concern with residents of small districts. Sales and purchases there are apt to excite unusual interest and beget a reasonably accurate knowledge of values. The testimony shows that these witnesses possessed the knowledge necessary to qualify them to testify as to the value of the property in question and brought them substantially within the rule stated by Mr. Justice Potter in Friday v. Penna. R. R. Co., 204 Pa. 405, as follows: “ The knowledge which is essential to qualify witnesses to testify as to land values is clearly defined in Pittsburg, etc., Railway Company v. Vance, 115 Pa. 325, and reiterated in Michael v. Crescent Pipe Line Company, 159 Pa. 99. The requirements imply familiarity upon the part of the witness with the property in question, its area and the uses to which it may reasonably be applied, and the extent and condition of its improvements. But this is not all. Another essential, by reason of the necessity for comparison, is a knowledge of the general selling price in the neighborhood at the time. In fixing this, regard must be had also to the rule that the general selling price is not to be shown by evidence of particular sales of alleged similar lots, but is to be fixed in the mind of the ivitness, from a knowledge of the price at which lots are generally held for sale, and at which they are sometimes actually sold, in the course of ordinary business in the neighborhood. While not easy to define with accuracy, yet there is such a thing as market value. And in an inquiry such as the present, this is to be ascertained from the testimony of those who by special knowledge, or opportunity for observation, are in possession of the data from which a proper estimate can be made.”

It is contended that the learned trial judge erred in not defining specifically the term “ market value,” and his failure to do so made his charge inadequate and indefinite. The market value of laud is generally based upon its extent, the character of the improvements, its productive qualities and upon sales of property in the vicinity: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325. While the learned trial judge did not define market value, his instructions were such as to clearly indicate what it was and were adequate for such purpose.

After discussing some of the testimony and referring to that of one of the witnesses, he said : “ Just how near it (his testimony) comes to the market value is for you to say. You may think that it is below the market value or that the real value is very much higher.” Pie concludes : “ When you come to measure values as compared with side avenues and streets, out of all this testimony, considering the character of the witnesses, the impress of their testimony, their knowledge, bias and interest, what in your judgment was a fair market value of that property in February, 1902, buildings and all? The buildings are not to be measured as the cost of new buildings, but simply as to the piece of property for sale. What was the property as a whole fairly worth ? ”

These instructions were adequate and definite as a guidance for the jury in its determination of the value of the property taken, and an exact definition of “ market value ” superadded would not have made them more so.

It is also contended that the verdict was excessive, and that under the Act of May 20, 1891, P. L. 101, giving the Supreme Court power to affirm, reverse or modify judgments, this judgment should be reversed or reduced in amount. This court will only in exceptional cases, where there is some important reason for doing so, exercise the power thus conferred, but generally will, in cases where verdicts are excessively large, leave the parties to the remedy which rests in the discretion of the lower court, to be exercised upon motions for new trials. With the proofs upon the one side showing a valuation of $9,000, and upon the other of $4,500 to $5,500, this case presents none of the impelling elements that would move this court to modify or reverse the judgment.

It is, therefore, affirmed.


author: Mb. Justice Potteb,

text:
    Kennedy v. Consolidated Traction Company, Appellant.

      Negligence—Street railways—Collision between car and wagon—Case for jury.

    In an action against a street railway company to recover damages for personal injuries, it appeared that plaintiff was driving on a street which terminated in an avenue on which the defendant operated a double track electric railway. Plaintiff testified that as he came out of the side street he checked his team and looked both ways, that he could see plainly to the east l'or a distance of about 120 feet, that he saw no car within that space, that a funeral procession was approaching upon the east bound track which was the one nearest him. He drove across this track and turned to the west driving diagonally across the street, and when at a point about forty or fifty feet west of the side street, his wagon was struck upon the right side near the front wheel by a west bound (far. Plaintiff’s testimony was corroborated by other witnesses. The testimony as to the speed of the car was conflicting, but it appeared that if the car had been running at an ordinary speed, it could have been checked after the motorman had reason to apprehend a collision, and before reaching the wagon. Much of the plaintiff’s proof was contradicted by the defendant’s witnesses. Held, that the ease was for the jury, and that a verdict and judgment for plaiutiff should be sustained.
    Argued Oet. 25, 1904.
    Appeal, No. 62, Oct. T., 1904, by defendant, from judgment of C. P. No. 1, Allegheny Co., Sept. T\, 1902, No. 144, on verdict for plaintiff in case of Luther Kennedy v. Consolidated Traction Company.
    Before Mitchell, C. J., Dean, Fell, Brow, Mestkezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Macfarlane, J.

      , The circumstances of the accident are detailed in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,267. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      James C. Gray, with him Clarence Burleigh and William A. Challener, for appellant.
    The appellee was guilty of contributory negligence: Thomas v. Citizens’ Pass. Ry. Co., 132 Pa. 504; Carson v. Federal Street, etc., Ry. Co., 147 Pa. 219; Smith v. Electric Traction Co., 187 Pa. 110 ; Burke v. Union Traction Co., 198 Pa. 497 ; Keenan v. Union Traction Co., 202 Pa. 107; Moser v. Union Traction Co., 205 Pa. 481; Bobb v. Union Traction Co., 206 Pa. 265.

      Body P. Marshall, for appellee.
    The case was for the jury: Hamilton v. Traction Co., 201 Pa. 351.
    December 31, 1904:
   Opinion by

Mb. Justice Potteb,

Just before the accident which resulted in the injuries for which he here seeks to recover damages, Luther Kennedy drove a team of horses and an empty wagon north on Magee street to its intersection with Fifth avenue, in the city of Pitts-burg.

The streets in this vicinity, running north and south, do not cross Fifth avenue, but terminate there. Magee street ends at a point about half way between Logan street and Elm street, being approximately 140 feet from each, they being the nearest highways upon either side which lead north from Fifth avenue.

The defendant company has two tracks upon Fifth avenue. As the plaintiff came out of Magee street he checked his team and looked both ways ; he says he could see plainly to the east, beyond Logan street, and that he saw no car within that space. A funeral procession was approaching upon the east-bound track, which was the one nearest him. He drove across this 'track and turned to the west, driving diagonally across the street, and when at a point about forty or fifty feet west of the line of Magee street, his wagon was struck upon the right side, near the front wheel, by a west-bound car.

Upon the trial, in the court below, the learned trial judge refused to affirm a point put by defendant’s counsel, asking for binding instructions in its favor; and this refusal is the only assignment of error presented upon this appeal. An examination of the evidence shows that there was a disputed question of fact in the case, and that was as to the location of the car, when the plaintiff drove upon the west-bound track, or gave such unmistakable evidence that he was about to do so, as to put the motorman fairly upon notice that he must stop or at least check his car.

This was not the case of a right angle street crossing where the driver goes straight across the street, so directly in front of and so near to an approaching car that the motorman cannot reasonably stop in time to avoid a collision. It is not therefore controlled by the principle of Carson v. Federal St., etc., Ry. Co., 147 Pa. 219 and other similar cases. On the contrary the evidence all goes to show that the plaintiff was not even opposite the mouth of Magee street when struck, but had turned to the west and had reached a point some fifty feet from the line of Magee street; and that he was at the time driving diagonally across the street. The witness Grandison testified that he saw plaintiff come out of Magee street, check his team, look east and west and cross the track a little below. That as he came out of Magee street the car was above Logan street coming from the east on the west-bound track. This witness thinks the front of the team and tongue of the wagon had entered upon the line of the west-bound track while the car was yet up at or near Logan street. That the car came on down without slackening speed and collided with the wagon, about three doors below Magee street, and opposite a lunch room located there. Another witness, Meyers, who was standing at the corner of Logan and Fifth avenue, testified that when the car passed him at that point, the horses were about to cross into the west-bound track, down below Magee street. Three other witnesses also testified to the effect that the car was yet above Logan street when the horses were stepping into the west-bound track. The plaintiff, Kennedy, testified that he had turned his horses so that one was walking between the rails of the west-bound track, and one was between the line of the two tracks when the wagon was struck. This statement would approximate the circumstances of the accident more nearly to those of a rear end collision, than to those of a crossing case. If the testimony of the witnesses for the plaintiff was credited by the jury, it was sufficient to justify a verdict for him. For the measurements show .that Logan street is about 160 feet from the point where the collision occurred, and if the motorman had been on the. alert, he would have had notice during that space, that a collision was likely to occur unless he checked his car. The distance was ample to permit him to stop the ear, if it had been under proper control. The conductor testified that at the ordinary rate of speed, the car could have stopped in but little more than its own length.

On the other hand, the witnesses for the defendant testified that the car was running at about the ordinary rate of speed, and that the plaintiff turned out of Magee street when the car was so near that the motorman could not reasonably stop in time. At least this was the only reasonable inference to be drawn from their evidence. Some of them said the car was not more than from thirty to fifty feet away, when the team was turned into the west-bound track. But because the testimony was thus conflicting, the trial judge was obliged to submit it to the jury. If the evidence on the part of the defendant was true, the plaintiff was guilty of gross contributory negligence and could not recover. But if the story as told by the plaintiff and his witnesses was believed then the motorman was at fault in failing to control his car and the plaintiff did nothing more in his attempted occupancy of the track than he had the right to do.

The case turns entirely upon the question of fact, as to the distance, between the car and the team, when the first approach to the west-bound track was made, and when the motorman could be fairly said to have had notice that his track would not be clear.

The circumstances were somewhat unusual. The fact that a funeral procession was approaching upon the east-bound track made it necessary for the plaintiff to pull over to the westbound track or into the space between it and the north curb. This accounted for the fact that the plaintiff pursued a diagonal course in crossing the street.

Upon consideration of all the evidence, we think the question was one for the jury. The assignment of error is overruled and the judgment is affirmed.


author: Mb. Justice Bbown,

text:
    Walters, Appellant, v. Steele.

      Will—Annuity—Arrearages—Charge on land—Execution—Judicial sale for arrearages.

    An annuity charged on land continues as a charge after a judicial sale of the land for arrearages for such annuity. If after such a sale there is a balance of the proceeds after the payment of the arrearages, such balance goes to the defendant in the execution, and the annuitant must look to the land for any arrearages that may accrue thereafter.
    Argued Oct. 10, 1904.
    Appeal, No. 101, Oct. T., 1904, by plaintiff, from decree of O. C. Westmoreland Co., Nov. T., 1895, No. 18, dismissing exceptions to sheriff’s schedule of distribution in case of Lucinda H. Walters v. Mary Steele and A. J. Steele.
    Before Mitchell, C. J., Dean, Fell, Bjbown, Mestkezat, Potter and Thompson, JJ.
    Affirmed.
    Petition for the sale of land to pay the arrearages charged on the land. Before Steele, P. J.
    From the record it appeared that the prayer of the petition was granted, and that at the sheriff’s sale the land was sold for $8,500. Of this sum $1,637.48 .was distributed to Lucinda H. Walters, the annuitant, and the balance $1,862.52 to Mrs. Mary Steele, the defendant, hi the execution. Lucinda H. Walters filed exceptions to the sheriff’s schedule of distribution to the effect that the balance should remain a fund in the control of the court to secure to her the payment of her annuity.
    The court dismissed the petition and confirmed the sheriff’s schedule of distribution.

      Error assigned was the decree of the court.

      G. B. Shaw, with him I). S. Atkinson and W. G. Peoples, for appellant.

      Paul H. Gaither, with him M. N. Mo Geary, Rabe M. Marsh and Cyrus R. Woods, for appellee.
    December 31, 1904:
   Opinion by

Mb. Justice Bbown,

In Walter’s Estate, 197 Pa. 555, we held that the provision in the will of the father of the appellant, that she should “ have her living in the old homestead so long as she remains unmarried and does not charge for services rendered,” was a charge on the land devised to her brother, and liad not been divested by a sheriff’s sale of the land on a judgment entered against him after the death of the testator. The charge, as fixed by the court below, was the payment of $150 per year to the appellant during life; and in Steele v. Walter, 204 Pa. 257, it was decided that the appellee, as the purchaser of the farm at the sheriff's sale, took it subject to this charge. To enforce the arrearages due her, these proceedings were instituted by the appellant, and resulted in a sale of the land under the process of the orphans’ court. Out of the net proceeds the sum of $1,366.93 was awarded to her for the arrearages due at the time of the sale, and the balance, $1,862.52, was directed to be paid to the appellee, the defendant in the execution. The contention of the appellant is, that this surplus should remain as a fund under the control of the court to secure future payments for her maintenance.

If the sheriff’s sale had been on a mortgage or judgment, prior to which there was ho encumbrance on the land except this charge, the sale would not have disturbed it. From the proceeds the beneficiary could have taken the arrearages due, but for those to become due she would have to look to the land, which had been relieved only to the extent of what was due when it was sold. This is so because the analogy between a charge on land for the support of a child through life and testamentary or statutory dower for a widow is complete; and on a sale of land charged with dower, when the sale is on an encumbrance between which and the charge no undivested liens exist, while the arrearages due the widow are payable out of the proceeds, she must look to the land for those subsequently accruing. “ On a sheriff’s sale of land, it is settled that all liens on the land, due at the time of the sale, when they are capable of being reduced to a certainty, are entitled to payment out of the proceeds. It was long ago decided in Bantleon v. Smith, 2 Binn. 146 that arrears of ground rent, due at the time of the sheriff’s sale, are payable out of the moneys raised by the sale. There is no distinction in this respect between a legacy charged on the land and other liens. The only reason why the future arrears of annuity, payable out of the land to the widow, have been excepted, is on account of the impossibility of computing their amount. Therefore, as to them, the purchaser has been held to take the land, chargeable with the future payments. But this reason does not apply to arrears due and payable. They are a fixed and certain debt, capable of exact computation, and therefore entitled to be discharged. The purchaser takes the land free and acquitted of them: ” Reed v. Reed, 1 W. & S. 285.

How is it possible to compute what will become duo to this appellant ? She may live one year or so many that all of the surplus, if retained under the control of the court, would be insufficient to pay her what she is yet to receive. Among the many other cases recognizing and enforcing the rule laid down in Reed v. Reed are Dickinson v. Beyer, 87 Pa. 274; Davison’s Appeal, 95 Pa. 394; Luther v. Wagner, 107 Pa. 343.

That the proceedings which resulted in the sale were instituted by the appellant herself can make no difference in the application of the rule; and she must look to the land for arrearages to accrue after the sheriff’s sale. Just as she could have taken nothing from the proceeds but the arrearages due, if the land had been sold on a lien subsequent to the charge, so she could have instituted no independent proceeding to recover anything more. The land was not sold on the process of a stranger, and there was no fund to whicli she could go for her arrearages. She turned to the land for what was due her, and, having received from it all that it was bound for when she went upon it, she must go there again as often as her support from it is withheld when due. Decree affirmed at appellant’s costs.


author: Mb. Justice Brown,

text:
    McCullough v. Johnetta Coal Company, Appellant.

      Will—Devise—Estate tail—Rule in Shelley’s case.

    Testatrix directed her executor, out of moneys of her estate, to buy land “the rents and profits of this land to go to my son.” She further directed “should my son die without issue, then the land bought with my money shall be sold and the proceeds divided among my brothers and sisters or other heirs, but should my son have heirs or issue then this land shall be his and his heirs.” The executors bought the land, and thereafter a child was bom to the son. Held (1) that the son, even apart from having a child, took an estate tail, which by the act of 1855 was converted into an estate in fee simple; (2) that, apart from any rule of construction, the son upon the birth of the child took the land in fee simple.
    Argued Oct. 21, 1904.
    Appeal, No. 176, Oct. T., 1904, by-defendant, from judgment of C. P. Washington Co., Aug. T., 1904, No. 62, on case stated in suit of James W. McCullough et al. v. Johnetta Coal Compaüy.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, J J.
    Affirmed.
    Case stated to determine the marketable title to real estate.
    The plaintiff claimed title from Alexander Horn. Mary Horn, mother of Alexander, by her will directed as follows :
    “ Fifth—I direct that my executor shall collect the notes due me from various persons and invest the money derived therefrom in land, the rents and profits of this land to go to my son, Alexander Horn, and my executor shall have a period of four or five years to collect and invest the money aforesaid.
    “ Sixth—Should my son, Alexander Horn, die without issue, then the land bought with my money shall be sold and the proceeds divided among my brothers and sisters or other heirs, but should my son have heirs or issue, then this land shall be his and his heirs.”
    After the executor had bought the land a son was born to Alexander Horn.
    The court entered judgment for plaintiff on the case stated.

      Error assigned was the judgment of the court.

      Alex. M. Todd, with him James A. Wiley, for appellant,
    cited: McMasters v. Shellito, 14 Pa. Superior Ct. 303; Thran v. Herzog, 12 Pa. Superior Ct. 551.
    • Marry Russell Myers, for appellee,
    cited: Bush’s App., 33 Pa. 85; Knecht’s App., 185 Pa. 194; Reinoehl v. Shirk, 119 Pa. 108; Lawrence v. Lawrence, 105 Pa. 335; Hackney v. Tracy, 137 Pa. 53 ; Stouch v. Zeigler, 196 Pa. 489 ; Taylor v. Taylor, 63 Pa. 481; Middleswarth v. Blackmore, 74 Pa. 414; Grimes v. Shirk, 169 Pa. 74; Ray v. Alexander, 146 Pa. 242; Lapsley v. Lapsley, 9 Pa. 130 ; Smith’s Appeal, 23 Pa. 9 ; Corrin v. Elliott, 23 Pa. Superior Ct. 449; McCafferty v. Duerr, 207 Pa. 261.
    December 31, 1904:
   Opinion by

Mb. Justice Brown,

After the executor had purchased the land in pursuance of the direction in the fifth clause of the will of the testatrix her son became the equitable owner of it, and, if of a fee simple in it, the title proffered to the appellant is good. By the succeeding clause there is a devise over to the brothers and sisters or other heirs ” of the testatrix, if the son should “ die without issue.” That under the settled rule of property in relation to land devised the son took an estate tail, cannot be questioned. By the act of 1855 it became a fee. But apart from any rule of construction, the manifest intention of the mother was that, whenever her son should have issue, the land should become his in fee simple. Her words are, “ But should my son have heirs or issue, then this land shall be his and his heirs; ” that is, in the event of issue born to him, the land is to be his, and from him, and not from her, his heirs are to inherit it. A child was born to him, and the contingency arose which his mother said should make him the absolute owner of the land. The question raised on this appeal is not open to discussion.

Judgment affirmed.