author: Mb. Justice Potteb,

text:
    Kaufmann v. Liggett, Appellant.

      Landlord and tenant—Equity—Jurisdiction.

    A court of equity has jurisdiction, in a proper case to restrain proceedings under the landlord and tenant acts of 1772 and 1863.

      Landlord and tenant—Lease—Renewals.

    As a general rule in construing provisions of a lease relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself.

      Landlord and tenant—Extensions—Arbitration—Rental—Specific performance.

    Where a lease provides for an extension for a period of years, and that the rental shall be determined by arbitrators, and the lessee gives the notice of renewal required by the lease, but the arbitrators disagree and fail to fix the rental, the lessor has no right to dispossess the lessee during the extended term, inasmuch as the fixing of the rental is not of the essence of the contract. In such a case while a court of equity cannot compel an arbitration, it has the power either by itself or by its officer to fix the amount of the rent'to be paid by the lessee during the extended term.
    Argued March 14, 1904.
    Appeal, No. 16, Oct. T., 1904, by defendants, from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 478, on bill inequity in case of Jacob Kaufmann et al. trading as Kaufmann Bros, formerly as J. Kaufmann & Bros., v. John Liggett et al., Trustees of Sarah L. Hitchcock, Deceased.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The prayers of the bill were as follows :
    1. For an injunction restraining respondents from interfering with the complainant’s possession of the premises, and from instituting or proceeding with any proceedings at law for that purpose.
    2. That the court shall fix and determine the rental to be paid by the complainants for the premises for the term of five years beginning on April 1, 1903, and the terms of payment thereof.
    3. General relief.
    The facts of the case are stated in the opinion of the Supreme Court.
    The court entered the following decree :
    And now, to wit: October 28,1903, this case having heen set down for argument upon the argument list, upon the exceptions to the findings of fact and conclusions of law, as found and entered of record upon the trial and hearing of this cause, and the same being submitted to this court upon the arguments and briefs of counsel of the respective parties, and the same duly considered, and the said exceptions dismissed, and the bill sustained, and directing that a decree be drawn temporarily enjoining the defendants from interfering with the possession of the plaintiffs, till further order of the court; this court does now order and decree that an injunction be granted pending these proceedings, and until further order of this court against the defendants restraining them from proceeding to interfere with the plaintiffs’ possession of the premises described in their bill by proceeding under the landlord and tenant acts of 1772 or 1863 or otherwise.

      Errors assigned were in dismissing various exceptions to the findings and conclusions of the court.

      B. T. Watson, with him Marcus A. Woodward and John M. Freeman, for appellants.
    The court has no jurisdiction to grant the relief prayed for in the bill because the Hitchcock leases terminated March 31, 1903, by. reason of the failure, of the mode provided by the parties for the fixing of the rental: Hudson Canal Co. v. Penna. Coal Co., 75 U. S. 276; United States v. Goldenberg, 168 U. S. 95 (18 Sup. Ct. Repr. 3); Harrison v. Fortlage, 161 U. S. 57 (16 Sup. Ct. Repr. 488).
    Sarah Hitchcock did not grant to the Kaufmanns the privilege of rerenting independent from and without fixing the ■rent, but on the contrary, she granted the privilege of rerenting at a rent certain : Wells v. DeLeyer, 1 Daly, 39.
    In order, then, that the court may grant the relief, it is a primary and absolutely necessary condition of such a bill that it states a contract certain in all its parts, and which the court can order each party to specifically perform as it was anade: Agnew v. Southern Avenue Land Co., 204 Pa. 192 ; Hammer v. McEldowney, 46 Pa. 334; Ballou v. March, 133 Pa. 64; Weaver v. Shenk, 154 Pa. 206; Zoebisch v. Rauch, 133 Pa. 532; Hunt v. Rousmaniere’s Adm., 26 U. S. 1.
    The following authorities show conclusively that where parties provide a particular mode of determining an essential element in a contract, and the mode agreed upon fails, there is no contract for the court to enforce : Milnes v. Gery, 14 Ves. 400; Hall v. Warren, 9 Ves. 605; Vickers v. Vickers, L. R. 4 Eq. 529; Darbey v. Whitaker, 4 Drew. 134; Cooth v. Jackson, 6 Ves. 12; Blundell v. Brettargh, 17 Ves. Jr. 232; Tillet v. Charing Cross Bridge Co., 26 Beav. 419; Firth v. Midland Ry. Co., L. R. 20 Eq. 100 ; Norfleet v. Southall, 3 Murph. (N. C. Eq.) 189; Hopkins v. Gilman, 22 Wis. 476; Morrison v. Rossignol, 5 Cal. 65; Pray v. Clark, 113 Mass. 283.
    The fixing of the rental is unquestionably of the essence of the contract. There is no contract at all until this material term is inserted: Hopkins v. Gilman, 22 Wis. 476; Bigley v. Risher, 63 Pa. 152; Potts v. Whitehead, 20 N. J. Eq. 55; Norfleet v. Southall, 3 Murph. (N. C. Eq.) 189; Bernard v. Scott, 12 La. 489; Milnes v. Grey, 14 Ves. Jr. 400; Gourlay v. Duke of Somerset, 19 Ves. 429.
    There is absolutely no ground of equitable estoppel in this case: Ramsden v. Dyson, L. R. 1 H. L. 129, 170.

      A court of equity has no jurisdiction to try the case set out in the bill. The controlling question is whether or not the lease of complainant has terminated, and to try this question there is a full, adequate and complete remedy under the landlord and tenant acts: Pittsburg & A. Drove Yard Co.’s App., 123 Pa. 250; Brown’s App., 66 Pa. 155; DeCoursey v. Guarantee Trust & Safe Dep. Co., 81 Pa. 217; Juergen v. Allegheny County, 204 Pa. 501.

      TV. B. Rodgers and Edwin H. Stowe, with them J. Rodgers MeOreery, for appellees.
    Equity has jurisdiction to determine the- rental in this case for the term of five years from April 1, 1903.
    The inducement, end and purpose was improvement of lessor’s premises and establishment of a business therein, by securing to lessees time to reap the fruits of their outlay and efforts. The fixing of rental for an extension term is not of the essence of the contract: Dinham v. Bradford, L. R. 5 Chanc. App. Cases, 519 ; Fitzsimmons v. Lindsay, 205 Pa. 79 ; Backus’s App., 58 Pa. 186.
    The material thing in the mind of the parties was the notice. When that notice was given appellees were absolutely bound to take the premises for the term and appellants to grant the term. And therefore the fixing of the rent was not of the essence of the contract.
    There is no time limited for the ascertainment of the rent, therefore that could not be considered as essential to the renewals.
    Equity has jurisdiction: Dunnell v. Keteltas, 16 Abb. Pr. 205; Phila. Library Co. v. Beaumont, 39 Pa. 43; Boswell’s App., 3 Penny. 305; Arnot v. Alexander, 44 Mo. 25; Viany v. Ferran, 5 Abb. Pr. (N. S.) 110; Piggot v. Mason, 1 Paige, Ch. 412; Gregory v. Mighell, 18 Ves. Jr. 328; Dilke v. Greene, 4 R. I. 285; Herman v. Babcock, 103 Ind. 461 (3 N. E. Repr. 142); Gourlay v. Duke of Somerset, 19 Ves. 429; Graver v. Fehr. 89 Pa. 460.
    The landlord and tenant acts contemplate decision of matters of fact, by one not learned in the law, and do not apply to eases where the termination of the tenancy involves the decision of a difficult legal question: Scott v. Fuller, 3 P. & W. 55; Newell v. Gibbs, 1 W. & S. 496 ; Pittsburg & A. Drove Yard Co.’s App., 123 Pa. 250; Brown’s App., 66 Pa. 155; De Coursey v. Guarantee Trust & Safe Dep. Co., 81 Pa. 217; Juergen v. Allegheny Co., 204 Pa. 501; Denny v. Fronheiser, 207 Pa. 174 ; Clark v. Everly, 8 W. & S. 231; Davis v. Davis, 115 Pa. 261; Steele v. Thompson, 3 P. & W. 34.
    May 2, 1904:
   Opinion by

Mb. Justice Potteb,

The complainants in this case, Kaufmann Brothers, leased certain premises on the southeast corner of Fifth avenue and Smithfield street in the city of Pittsburg, from Sarah L. Hitchcock for a term of years. By the leases, two in number, it was provided in language substantially identical, that the lessees should have the privilege of rerenting at the expiration of the first term, which ended April 1, 1898, for a period of five years more at a rental to be determined by four arbitrators, two selected by each party, with power in case of disagreement to choose an umpire, whose decision should be final and without exception or appeal. It was also stipulated that no such privilege of renewal should be granted unless the lessees gave written notice to the lessor or her heirs of their intention to exercise such privilege for six months prior to April 1, 1898. Also that if the arbitrators and umpire should not agree within two months after their appointment, then others should be chosen in the same manner. Also that if the lessees should occupy the premises for the term of five years from April 1,1898, they should have a further privilege of lease for another period of five years, upon a like six months’ notice, at a rental to be fixed and determined in the same manner. There was no provision in either lease covering the contingency of a failure to agree upon the part of the second set of arbitrators.

The lessees exercised their privilege of renewal for the five years beginning April 1, 1898, and the rental was determined according to the provisions of the leases. Six months prior to April 1, 1903, which was the termination of the first extension of five years, they gave notice of their intention to renew for another period of five years. Arbitrators were named by both sides in accordance with the provisions of the leases, but they failed to agree upon a rental or to select an umpire within two months. A second set of arbitrators were then chosen. But again there was a failure to agree, and upon April 9,1908, the arbitration was dissolved and adjourned sine die. Meanwhile, the respondents, who were trustees under the will of the lessor, she having died during the tenancy, had given notice to the lessees, under the landlord and tenant acts of 1772 and 1863, to surrender possession of the premises, and threatened proceedings to dispossess them. The lessees then filed this bill against the trustees, praying (1) for an injunction to restrain them from proceedings at law to disturb or interfere with the complainant’s possession of the premises, and (2) for a determination by the court of the amount of rental to be paid for the five years beginning April 1,1903.

Upon the trial, the court made a full finding of facts, all of them being practically undisputed, and reached the following conclusions of law: 1. That equity has jurisdiction. 2. That there is no sufficient remedy at law. 3. That the landlord and tenant acts of 1772 and 1863 have no application. 4. That an injunction should be granted until further order.

Exceptions were filed to certain of the findings of fact, as being irrelevant and immaterial, and also to the conclusions of law and the opinion of the court. These exceptions were dismissed and a decree was entered directing that an injunction he issued restraining the respondents from interfering with the possession of the plaintiffs until further order of the court, by proceeding under the landlord and tenant acts of 1772 and 1863, or otherwise. The present appeal was then taken by the respondents. The decree of the court below is not assigned for error, but the assignments are confined to the dismissal of the exceptions, to the conclusions of law reached by the court below.

That a court of equity has jurisdiction in a proper case to restrain proceedings under the landlord and tenant acts of 1772 and 1863, was expressly held in Denny v. Fronheiser, 207 Pa. 174. Justice Mitchell there said (p. 177) : “ The jurisdiction of equity to restrain actions at law is too well established to require discussion, and there is nothing in the act of 1772 to give proceedings under it any immunity from such restraint in a proper case.” In that instance it was held that equity would not interfere, not because it is without jurisdiction to do so, but because a proper case was not made out for its exercise.

The summary remedy provided under the acts of 1772 and 1868 is not adapted to the determination of intricate and delicate questions of law. As the preseñt chief justice said in the case just cited (p. 179), “The act was passed in the interests of justice to give against tenants who hold over without even color of right after the expiration of their terms, a better remedy than the old, cumbersome, dilatory and expensive one by action of ejectment.” But as Justice Sterrett said in Davis v. Davis, 115 Pa. 261, speaking of the provisions of the act of 1863 (p. 265), “ It also clearly indicates that the legislature in providing a remedy so summary that the person in possession may be ousted therefrom in a few days, intended to further limit the jurisdiction of magistrates and restrict the remedy to plain cases of ordinary tenancy.” And further in the same case (p. 266) he says, “ In view of the fact that the special and summary jurisdiction given to justices of the peace and magistrates by the act of 1863, and supplements, has been so sharply defined by the legislature, and limited to a class of cases that are of easy solution, it would illy become us, even if we had the power to do so, to enlarge its scope so as to embrace cases which the average justice of the peace or city magistrate is incompetent to dispose of.”

In the present case, the appellees contend for the right to hold the premises in dispute, under the covenants in the lease providing for a renewal for five years from April 1, 1903. This raises a somewhat complicated question of law which must be settled before it is possible to determine whether or not the right of possession in the lessees ended with the term which expired March 31, 1903. Had no notice been given by the appellees, six months prior to that date, of their intention to exercise the right of renewal which was expressly granted to them by the original lease, then there would be but a simple question of fact for determination, entirely within the province of the justice and the jury to decide. But it is undisputed that the six months’ notice was given, and the rights of the parties now turn upon questions of law, rather than upon any disputed facts.

W e are clear that under the circumstances of the present case, neither the act of 1772 nor that of 1863 supplies an adequate remedy, nor do they provide a proper tribunal for the determination of the questions involved. They cannot therefore be allowed to operate as a bar to the maintenance of this bill.

In the second prayer of the bill, the lessees ash that the court shall fix and determine the rental to be paid by the plaintiffs for the premises for the term of five years from April 1, 1903. But it is urged by counsel for the appellants that the court has no jurisdiction to grant this belief, because, as they allege, the leases terminated March 31, 1903, by reason of the failure of the mode provided by the parties for the fixing of the rental.

As we have seen, the original term in both leases expired April 1, 1898, but each provided for similar renewals, one for five years from April 1, 1898, and another for a further term of five years from April 1, 1903; and by another agreement, two additional extensions from that date were provided on both of the above leases, one for five years, and at its expiration, another for four years ; so that extensions are provided for which run, at the option of the lessees, until April 1, 1917. The leases therefore contemplate, in addition to the first term of thirteen years, four extensions in all, three for five years each, and one for four years. The entire contract embraces a period of thirty-two years’ occupancy of the premises by the lessees, if they choose to avail themselves of the rights placed at their disposal by the terms of the agreement. The rental for the first thirteen years was fixed by the parties at the outset. That for the first extension of five years was fixed by arbitration in accordance with the terms of the lease ; and the present dispute grows out of the failure upon the part of the arbitrators to fix the rental for the second period of extension of five years.

The language of the original lease of 1885 is as follows: “ And the said parties of the first part hereby grant unto the said J. Kaufmann & Brothers or their assigns, the privilege of rerenting the premises at the expiration of the first term of thirteen years for a period of five years longer..” It will be noticed that here is a direct and positive grant of the right of renewal. It is not left to be determined by anybody else, but is definitely settled by the parties. And with reference to the second extension of five years, the language is no less clear; it is :. “ And the said parties of the first part further agree to and with the said parties of the second part that should they occupy the said premises for the said five years above designated, that they hereby grant to the said J. Kaufmann & Brothers a further privilege of lease for a period of five years upon a like six months’ notice.” So that in both cases there was an absolute contract between the parties to the lease stipulating at the time of the making of the lease, not only for one term of thirteen years but for the privilege of further extensions. Clearly the question of whether or not an extension should be made was not left open to be determined by arbitration. That much at least was definitely fixed by the contract. It is true that these extensions were to be at a rental to be fixed by arbitration, and the manner and method of the arbitration was pointed out. But when the lessees exercised their right to an extension, by giving notice to the lessors six months before the expiration of the pending term, the lessees were then absolutely bound to take the premises for the extended term; and the lessors were bound to the grant of the additional term. With that matter, the arbitrators had nothing to do. It was the amount of the rental for the buildings and premises for the extended periods which alone was left to be determined by arbitration.

The learned judge of the court of common pleas reached a conclusion which he expressed in his opinion as follows: “ The plaintiffs having exercised their option for a renewal of the leases within the time prescribed, their right to a lease and to keep possession of the premises for a new term of five years, was vested in them regardless of whether the arbitrators fixed the amount of the rent or not. If the right to renewal liad been intended to depend upon the rent being fixed in advance, it. would not only have been the easiest but most natural thing to have said so. It seems clear to us that no such result was even thought of by either party.” We agree with the conclusion thus stated. The lessees were stipulating for what was certainly to them a valuable privilege in providing for a long term made up of successive extensions. Under the contract, that privilege was absolutely secured to them, provided they gave six months’ notice, prior to the expiration of each term, ' of their desire to take advantage of the agreement for the extension.

The arbitrators were appointed, in the language of the lease, “ for the purpose of determining the amount of rent which the said J. Kaufmann & Brothers shall pay per year during the said five years.” The right to a renewal was not in any way before them for consideration. Can it be said that, because the arbitrators failed in their duty, which was to determine the amount of the rental or to agree upon an umpire, whose decision upon that subject should be final and conclusive, the lessees are to be deprived of the privilege of a renewal, which they had taken the pains to secure for themselves by means of carefully drawn stipulations in the contract ?

To the mind of the trial judge, the specifications of the lease for successive renewals at the end of the intermediate periods, appeared to be the substantial part of the contract, and he viewed the manner of fixing the rental, value as merely incidental thereto. In his opinion he thus states his conclusion: “ It is evident that the essence of the contract in the leases was the options for renewals, and that the parties so understood it. This is strengthened by the fact that as the leases were made to terminate (subject to the options) in 1917; and by the following clause of the agreement of 1897, viz: ‘It is desired by the said parties of the second part for the better security for the future of their business interests where the same is at present located to provide for and obtain the right of future options. . . . And the parties of the first part deeming the grant of such options as of advantage to the estate of Sarah L. Hitchcock, .... and .... it being understood that on failure to exercise any of the said options within the time and according to the terms of said leases as aforesaid, the leases terminate with the term in which notice of such option is to be given according to the terms thereof.’ Now, under these somewhat extraordinary conditions, the real' subject-matter of the contract being a right to the renewal of the leases, and fixing of the rent being only secondary, the terms as to rental being in substance and effect that the rent shall be a fair one fixed by an impartial tribunal; for that is all that the clause as to fixing the rent means; has equity jurisdiction? We think it has.” •

After careful consideration of this question, in the light of the elaborate argument of counsel for the appellant, we agree with the conclusion of the court below that the fixing of the rental value of the premises for the period in dispute in this case is not of the essence of the contract, but that the right of renewal constituted the substantial element in this portion of the agreement. It was that feature which, in great measure, justified the lessees in erecting upon the premises a large and costly building, adapted to the needs of their business. As a general rule, in construing provisions of a lease relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself: Taylor’s Landlord and Tenant, 9th ed., sec. 81.

Nearly all of the eases cited by the appellants, to sustain their contention that the fixing of the rental value is of the essence of the contract, were proceedings to enforce specific performance of contracts for the sale of land; and in this class of cases it has invariably been held that the price to be paid is an essential element of a contract of sale ; and unless the price has been fixed, the contract is not certain and cannot be enforced. We are not, however, here dealing with a contract for the sale of land, but we are dealing with covenants for the renewal of a lease, and that, too, in a case where the lessees have been in possession of the premises under the lease for more than eighteen years, and have made valuable and extensive improvements upon the property during that time, and have built up a large and extensive business thereupon. During all these years, the lessors have been receiving a rental for the property which was entirely satisfactory. There is a marked distinction between the rule which may equitably be applied to a contract for the sale of land, and that which should govern in an agreement for the renewal of a lease where possession has been enjoj'ed, and improvements made during the first period under a reasonable expectation of benefits to be derived therefrom, during future extensions of the lease at the option of the lessee.

One of the cases upon which the appellants rely is Milnes v. Gery, 14 Ves. 400. The contract in that case was one for the sale of land, and the court, by Sir William Grant, said that the price is of the essence of a contract of sale. But the same eminent judge afterwards delivered the opinion in Gregory v. Mighell, 18 Ves. Jr. 328. In this case, there was a parol agreement for a lease of twenty-one years, the amount of rent annually to be fixed by two indifferent persons, under which the lessees entered and made improvements. Sir William Grant here held that the failure of the arbitrators to fix the rent could not affect the agreement, but that the court would find some means of completing its execution. Specific performance was accordingly decreed, and it was referred to a master, to ascertain what the rent ought to be. And in Gourlay v. Duke of Somerset, 19 Ves. 429, a lease was to be given with such conditions as the defendant’s steward should judge to be reasonable and proper; or in the event of his death, by some other person to be mutually agreed upon. The question arose under a bill filed by the tenant whether the terms of the lease should be settled by the steward of the defendant or by a master of the court. And in this case Sir William Grant held that when the agreement to give a lease is binding, and such as ought to be executed, it does not require foreign aid to carry the details into execution.

The appellants also cite the case of Hopkins v. Gilman, 22 Wis. 476. This was the case of a letting, and not a sale, but it seems favorable to the position of the appellees, rather than of the appellants. The lease stipulated that, at the end of the term, the lessor should have the value of the land, independently of the improvements placed upon it by the lessee, determined by the arbitrators to be chosen in a specified way, and that the lease should then be renewed at a percentage of the valuation, or else the improvements taken at a valuation to be fixed by arbitrators. It was held that while the court would not compel "an arbitration, it would restrain the lessor from proceeding at law to dispossess the tenant until the improvements were paid for. And also that a court of equity had power itself to ascertain the value of such improvements, notwithstanding the provisions of the lease as to arbitration. It was there said (p. 481), “ The court having jurisdiction of the cause, should provide and grant any relief consistent with the case made by the complaint and embraced within the issue.”

In Dinham v. Bradford, L. R. 5 Chancery Appeal Cases, 519, two partners made an agreement containing a provision that on the determination of the partnership, one partner should purchase the share of the other, at a valuation to be made by two persons, one appointed by each partner ; and the partnership was carried on for some time under that agreement; held, that though the valuation could not be so made, because no umpire was provided, the court would carry the partnership agreement into effect by ascertaining the value of the shares. Lord Hatherlx said, inter alia (p. 523) : “ This case is not like that of the sale of an estate the price of which is to be settled by arbitration, but is a case in which the whole scope and object of the deed would be entirely frustrated if the court were to apply the well known doctrine to the present state of circumstances. In cases of specific performance the matter is very plain and simple. One person agrees to sell his estate in a given way, and no rights are changed by the circumstances of that method of selling the estate having failed. The estate remains where it was, and the money where it was. But here is a man who has had the whole benefit of the partnership in respect to which this agreement was made, and now he refuses to have the rest of the agreement performed, on account of the difficulty which has arisen. It is much more like the case of an estate sold, and the timber, or a part, to be taken at a valuation, the adjusting of matters of that sort forming part of the arrangement, but being by no means the substance of the agreement; and in such cases the court has found no difficulty. If the valuation cannot be made modo et forma, the court will substitute itself for the arbitrators. It is not the very essence and substance of the contract, so that no contract can be made out except through the medium of the arbitrators. Here the property has been had and enjoyed, and the only question now is, what is right and proper to be done with regard to settling the price ? ”

In Dunnell v. Keteltas, 16 Abb. Pr. 205, the law is stated as follows (p. 211) : “ It is true, indeed, as a general rule, that a court of equity will not decree specific performance of a covenant or ag’reement to appoint arbitrators or appraisers. Where upon a contract for the sale of property, the price is not fixed but is left to be determined by certain persons named in the contract, the court will not force them to a decision, and will not undertake to perform the duty intrusted to them; so that, if they do not fix the price, the agreement must fail, unless, under certain circumstances, there has, notwithstanding the defect, been an acquiescence under it, or such a part performance that it would be inequitable not to enforce its execution. In such a case, the court will ascertain what is the fair value. Where also, the agreement was to sell at a fair valuation; and no persons were appointed to make it, there being nothing to preclude the court’s interference, a court of equity has taken it upon itself to determine what is a proper price and has decreed a specific performance accordingly. In fact, where any term of a contract, in all other respects complete, is left to the determination of others, and the same is not of the essence of it, the court will take it upon itself to decide that matter and will thereupon decree a specific performance. See Jeremy’s Equity, 442, 443 and cases there cited.”

In Viany v. Ferran, 5 Abb. Pr. N. S. (N. Y.) 110, it was held, under facts similar to those of the present case, that a court of equity had power to compel the execution of a renewal lease and also to determine the rent to be paid for the new term.

The contention of the appellants that the fixing of the rental is of the essence of the contract, does not seem to be borne out by the authorities. Thus, in Taylor’s Landlord and Tenant, 9th ed. sec. 14, “A stated rent is not essential to the contract; because, from favor, or for a consideration passing to the lessor at the time of its inception, a lease, beneficial in its nature to the lessee, may be made without any reservation of rent.” And several authorities are there cited to sustain the proposition.

In Weaver v. Wood, 9 Pa. 220, Gibson, O. J., held that an agreement for a lease at a fair rent is sufficiently certain to be enforced. And in Mitchell v. Commonwealth, 37 Pa. 187, in the opinion of this court delivered by Thompson, J., an agreement for holding premises rent free was construed to be a lease.

One of the latest cases in which the question here involved was considered is that of Grosvenor v. Flint, 20 R. 1.31, where the court said: “ The ease is before us on appeal, answer, replication and proof. The case presents two questions for decisions, (1) Whether the court, by a master or otherwise, can appraise the rent payable to the complainants, if the arbitration provided for in the lease has failed; and (2) Whether as a matter of fact, the arbitration has failed.

In answer to the first question we think it is clear that the court has jurisdiction to do, either directly or by its master, what the appraisers or arbitrators could have done under said provision of the lease, if it is shown that the arbitration has in fact failed. And refusal to agree to a third man constitutes such failure: Brock v. Dwelling House Insurance Co., 26 L. R. A. 623; Niagara Fire Insurance Co. v. Bishop, 154 Ill. 9; Brown v. Harper, 54 Iowa, 546; Watson v. Duke of Northumberland, 11 Ves. Jr. 153. The covenant to appraise the rent does not stand alone, but is merely a subsidiary part of the lease in question. That is to say, the manner of determining the amount of rent to be paid is a matter of form, rather than substance. And if it appears that this question cannot be determined in the manner provided for in the lease, by reason of the refusal of one party to the contract to do what in equity it ought to do, the court will determine it, upon the application of the other.”

The question is also fully discussed, and the authorities bearing upon it are carefully considered by Judge Dillon in Tscheider v. Biddle, 4 Dillon, 55.

The reasoning in Coles v. Peck, 96 Ind. 333, is also helpful in determining the question at issue.

In that case there was a lease providing for the erection of a building with an option to purchase, the price to be determined by arbitrators. The court held that the plaintiff was entitled to equitable relief on a failure of the arbitration. Many American and English cases are cited and commented upon. After referring to the doctrine laid down by Milnes v. Gery, 14 Ves. Jr. 400, that contracts for the sale of land will not be specifically enforced when the purchase price is to be determined by arbitrators and such arbitration has failed, the court says (p. 339): “ The doctrine of that case has, however, been followed by the courts of the United States, only in a limited and restricted sense, and is mainly a}Dplied only to contracts for reference in which, by the form and language of the stipulation, the inode of determining the price by values on arbitration, is made an essential provision—in fact condition—to the validity of the agreement, and to cases in which the parties can be easily placed in statu quo, or where an action for damages can be made to afford an adequate remedy.”

After a careful consideration of all the cases bearing upon the subject which have been brought to our attention, or which we have found, we are satisfied that the authorities well agree that equity will not compel an arbitration, and this upon the very good ground that the courts remain open to the parties, with better provisions for securing justice than are possessed by arbitrators. But that in cases of renewal leases, the weight of authority clearly favors the view that the tenant in such a case has a quasi proprietorship ; a right, lacking merely a valuation ; and that the grossest inequity would be worked, should he lose his right through a failure upon the part of the arbitrators to fix a valuation. While, therefore, a court of equity will not undertake to compel an arbitration, which it cannot control, it will in such case make an appraisement itself, or direct it to be done by its own officer, and will thereafter enforce specific performance of the contract, upon the terms so found.

Under the facts of the present case, the court has complete jurisdiction in equity to fix the amount of the rental to be paid by the lessees, during the extension of five years from April 1, 1903, and to enforce specific performance of the agreement providing for such extension.

The assignments of - error are overruled, and this appeal is dismissed, at the cost of the appellants. The decree of the court below is affirmed, and it is ordered that the record be remitted for further proceedings in accordance with this opinion.

       Also reported 37 Atl. Repr. 304.—Reporter.

       Also reported 31 N. E. Repr. 1102.

       Also reported 6 N. E. Repr. 747.—Reporter.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Astwood v. Wanamaker.

      Appeals—Supreme Court—Superior Court—Decree on trustee’s account.

    Under the Act of May 5, 1899, P. L. 248, on appeal from a decree or judgment for the payment of money in any court or any form of action, the amount in controversy is determined for purposes of jurisdiction by the amount of the decree or judgment.
    Argued Jan. 19, 1904.
    Appeal, No. 219, Jan. T., 1903, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1897, No. 195, in case of Henry C. C. Astwood v. John Wanamaker et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Remitted to Superior Court.
    The plaintiff brought assumpsit against the defendants. By agreement of the parties Frank P. Prichard was appointed referee.
    In pursuance of the report of the referee the following judgment was entered:
    Judgment without appeal or writ of error or objection or exception is hereby entered in favor of the defendants and against the plaintiff in the above entitled matter for one half the cost of the proceedings before the referee, including one half of the total fee of the referee of $600; that the defendants are not at the present time indebted to the plaintiff; and that when defendants shall have received from payments since April 4,1901, from the foreign debt of the republic of San Domingo the sum of $23,862.36, with interest at six per cent from April 4, 1901, and shall have further received any balance of the sum of $9,149.98 due by the plaintiff to the defendants upon an account between the two, with interest thereon from February 1, 1899, which then remains unpaid out of the collateral of the plaintiff in the hands of the defendants, the defendants shall then assign to the plaintiff without recourse whatever claim the defendants may have against the Dominican government under the act of congress of said government of April 4, 1891, and any collateral remaining in their hand belonging to the plaintiff.

      Lincoln L. Eyre, for appellant.
    P. P. Eothermel and Samuel M. Clement, Jr., for appellee.
    April 18, 1904:
   Per Curiam,

A majority of the court are of the opinion that this case falls within the rule of construction of the Act of May 5,1899, P. L. 248, adopted in Prentice v. Hancock, 204 Pa. 128, and as the money item of the judgment is less than $1,500 the appeal must go to the Superior Court. We therefore express no opinion on any of the questions raised.

Record ordered to be remitted to the Superior Court.


author: Mb. Justice Thompson,

text:
    Haines v. Hall, Appellant.

      Courts—Jurisdiction—Decree—Collateral attach.

    Generally where a court has jurisdiction its decree is conclusive and cannot be successfully attacked in any collateral proceeding.

      Trusts and trustees—Appointment of trustee—Collateral attach.

    Where a deed of trust gives to the cestuis que trustent the rents and income of property during their lives, and also the power in conjunction with the trustee to unite in a conveyance to end and determine the trust, and the cestuis que trustent after the death of the trustee petition the court under the act of April 14, 182S, P. L. 453, for the appointment of a new trustee and such appointment is made, and thereafter the substituted trustee unites in a deed with the cestuis que trustent to end the trust, children of the cestuis que trustent who had remainders under the deed of trust, cannot in an action of ejectment for land covered by the trust deed, attack the decree appointing the substituted trustee on the ground that they had no notice of the proceedings.
    Argued Feb. 9, 1904.
    Appeal, No. 227, Jan. T., 1908, by defendants, from judgment of C. P. Delaware Co., March T., 1902, No. 283, on verdict for plaintiff in casé of Francis C. Haines v. Charlotte Hall and William James Hall.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Thompson, JJ.
    Affirmed.
    Ejectment for land in Lansdowne borough. Before Johnson, P. J.
    In addition to the facts statecl in the opinion of the Supreme Court, it appeared that the- deed from Samuel B. Bartram to William Hall, trustee, dated December 9, 1884, contained the following clause:
    “ In trust nevertheless to permit the said John Henry Hall, son of the said William Hall, and Sarah, his wife, and the survivor of them to occupy, use and enjoy the said premises and to collect and receive the rents and profits thereof during their joint lives and the life of the survivor of them, so however that the same shall be free, clear and discharged from and without liability for the present or future debts, contracts and engagements of them the said John Henry Hall and Sarah, his wife, or of either of them and upon the decease of the survivor of them the said John Henry Hall and Sarah, his wife, then in trust for all and every their children then living, and the issue of any child or children who may then be deceased, their heirs and assigns in equal shares, the issue of any deceased child talcing however only such part or share thereof as his or her deceased parent would have taken if then living. Provided, however, that it shall and may be lawful for the said trustee and his successor in the trust at any time during the continuance of the trust by and with the consent of the said John Henry Hall and Sarah, his wife, and of the survivor of them testified by their joining in the deed, therefor, to sell and convey the said premises free and clear of all trusts the proceeds thereof to be invested in other real or personal estate to be held upon the same trusts and subject to the same powers, provisions and limitations and in like manner to revoke, annul, change or alter the trusts herein declared concerning the premises, or to declare new and other trusts respecting the same.”
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendant appealed.

      .Errors assigned were (1-9) various rulings on evidence; (10) in giving binding instructions for plaintiff.

      Albert J. Williams, with him 0. B. Dickinson, for appellants.

      JE. H. Hall, for appellee.
    May 2, 1904:
   Opinion by

Mb. Justice Thompson,

William Hall in 1884 became a trustee under a deed in which his son John and his wife were the cestnis que trustent. In consequence of his death the court of common pleas of Delaware county, upon petition of the son and wife appointed A. Lewis Smith, Esq., as substituted trustee. After his appointment Mr. Smith, as trustee, conveyed the property in litigation to the son, John Hall, and Sarah, his wife, clear of the trust, and subsequently they conveyed to Mr. Smith, this property subject to the trust with a power of revocation, and afterwards they, with the trustee, conveyed it to John and his wife, revoking the trust, to enable them to borrow the sum of $5,000 secured by a mortgage upon the property. The mortgage was^ foreclosed and the appellee became the purchaser of the property at a sheriff’s sale and brought this action of ejectment for it against the appellants, the children of John and his wife, who were in possession and claimed title under the deed to their grandfather, William Hall. Upon the trial the appellee, the plaintiff below, after offering the deed, offered in evidence the petition and decree of the court of common pleas appointing Mr. Smith as trustee. As the petition contained all the necessary requirements to give jurisdiction, the assignment of error that it was not competent cannot be sustained. The record thus admitted established the appointment of the trustee to fill the vacancy occasioned by the death of Mr. Hall.

This appointment was made under the Act of April- 14, 1828, P. L. 453. That act is entitled “ An act, to prevent the failure of trusts, to provide for the settlement of accounts of trustees and for other purposes.” After providing for the appointment in case of death, it provides as follows : “ It shall and may be lawful for the cestui que trust or other person or persons interested in the execution thereof to apply by petition, setting forth the facts of the case under oath or affirmation to either of the said courts within the proper district, which courts are hereby authorized to hear and determine the matters therein contained.” Thus when a vacancy in a trust by reason of death occurs, the cestui que trust is authorized to file his petition for an appointment to fill such vacancy and the court of common pleas of the proper county is empowered, after hearing, to make the appointment. The jurisdiction springs from the statute and is expressly given in plain terms, upon petition by the cestui que trust or other persons in interest. The jurisdictional party, in the first instance is the cestui que trust and with such party in court and with the subject-matter within its power of determination, the jurisdiction necessarily attaches. It is well settled that generally where a court has jurisdiction its decree is conclusive and cannot be successfully attacked in any collateral proceeding. In the case of Sweeney v. Girolo, 154 Pa. 609, it was said: The judgment of every court, pronounced on a subject within its jurisdiction, is conclusive and binding on all other courts, except those only before which it comes by appeal, certiorari or writ of error.” Again it is said: “ In Billings v. Russell, 23 Pa. 189, it was held that where a judgment is given by a court having jurisdiction of the subject-matter, its regularity cannot be questioned in a collateral proceeding.”

In Dresher v. Allentown Water Company, 52 Pa. 225, it is said : “ It is the right of the parties to the partition that is the subject of adjudication. Orphans’ court decrees are doubtless conclusive. They cannot be impeached collaterally. But like all other judgments they are conclusive only of the thing adjudicated.”

In Sheets v. Hawk, 14 S. & R. 173, it is said: “ Now, as it appears on the record that the court had jurisdiction to discharge, and as they have exercised that legitimate power it cannot consist with the general analogy of the law, that in a collateral action there can be any inquiry on the facts which they have decided.”

In the present case the petition was filed by the son John and his wife, the cestui que trustent named. The deed gave them the rents and income of the property during their lives and also the power in conjunction with the trustee to unite in a conveyance to end and determine the trust. Thus they were entitled to receive the income with the express authority to end the trust if they so desired to do and this they have done. The deed vested in them a complete control over the income and the entire estate, and by its terms passed only a contingent interest to appellants. The petition thus filed by the petitioners, who were the only parties then concerned, gave the court of common pleas jurisdiction to hear and determine the matter of appointment and the power after hearing to make the same. It has accordingly done so and by virtue of his appointment the trustee entered upon the performance of his duties and in pursuance of the power conferred by the deed, the trust has been ended. A mortgage was made to secure the sum of $5,000 that sum being borrowed by John and his wife and the property having been sold in foreclosure proceedings has been purchased by the appellee. The original trustee- having died, the appointment of the successor became a necessity for the purpose of the trust. The decree making such appointment coupled with security on the part of the trustee for the faithful performance of the duties of the trust, did not operate to impair rights or divest interests. The court had then the proper parties before it on the application for such appointment and after hearing, appointed Mr. Smith as such successor. It cannot be successfully said that after such appointment thus duly made, and after the trustee under it has performed the duties of the trust and the property has been sold and conveyed in the execution of the power contained in the deed, that the appellants who had no interest then, and the trust being ended, have none now, can in a collateral proceeding successfully assert that such appointment was void. The father is still living and having with his wife, under the power conferred in the deed, ended the trust created by it, and thus substantially executed the power, the appellants, one being twenty-four years of age and the other twenty-one years, cannot now, by collaterally attacking the appointment of the trustee, be permitted to defeat the conveyance made by them.

In view of this conclusion the assignments of error are not sustained and the judgment is affirmed.


author: Mr. Justice Thompson,

text:
    Benson’s Estate.

      Will—Devise—Substitutional devise—Codicil.

    A devise of a house to trustees, in trust for an adopted daughter for life, with remainders over, which had been purchased as a residence for her at a cost of $22,500, is revoked by a codicil devising to the same trustees, upon similar trusts, another house purchased, as a residence for the daughter, at a cost of $9,250, subject to a not matured mortgage of $20,000, the codicil containing no words of revocation, but expressly republishing the will, saving as by it modified.
    Where there is nothing on the face of a will, and no circumstances -to indicate an intention to give a double portion an advancement will be a satisfaction or ademption of a legacy.
    Argued March 21, 1904.
    Appeal, No. 196, Jan. T., 1903, by Florence B. Yollrath, from decree of O. C. Phila. Co., Jan. Term, 1903, No. 612, dismissing petition to compel trustees to pay over rentals in estate of Harriet S. Benson, deceased.
    Before Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    Petition to compel trustees to pay over rentals.
    The petition set out that testatrix died September 3, 1902, leaving a will, of which E. N. Benson, R. D. Benson and Charles M. Morton are executors; that petitioner was decedent’s adopted daughter and had intermarried in decedent’s lifetime with Alfred J. Yollrath; that during decedent’s lifetime she purchased in her own name for §22,600 premises No. 1105 Spruce street, which were occupied by petitioner and her family as a residence until 1899, when decedent purchased premises No. 1621 Spruce street; since which time petitioner and her family have occupied the latter premises as their residence; that these premises were bought subject to a mortgage for §20,000, which was not payable until December 31, 1900, and which still remains unpaid; that by decedent’s will a certain fund was given her executors in trust for petitioner’s benefit, and also premises No. 1105 Spruce street upon the same trusts, but with power to sell and with the proceeds purchase another residence for petitioner should she so desire; that after the purchase of premises No. 1621 Spruce street and the removal of petitioner thereto, decedent made a codicil to her will directing that the latter premises should be held upon the same trusts ; that the executors assert that under the will the mortgage of §20,000 is not to be paid out of decedent’s personal estate, and that there is no trust in petitioner’s favor as to premises No. 1105 Spruce street, and have therefore deducted from petitioner’s income the interest on the mortgage and have not paid over to her the rents collected from premises No. 1105 Spruce street.

      The petition averred that petitioner is entitled to one or the other of these things and asks relief accordingly.
    The answer admitted the facts, but denied that petitioner was entitled thereunder to the relief she asked.
    The case was heard by Judges Ashman and Penrose. Judge Ashman was of the opinion that the petition should be dismissed. Judge Penrose was of the contrary opinion.
    The court being equally divided a decree was entered dismissing the petition.

      Error assigned was the decree of the court.

      John G. Johnson, for appellant.

      Samuel Diclcson, with him Walter E. Rex and Richard O. Dale, for appellees.

      George Tucker Bispham, for residuary devisees.
    May 2, 1904:
   Opinion by

Mr. Justice Thompson,

In 1890 Miss Benson, who had adopted the appellant as her daughter, who married Alfred J. Yollrath, bought for her the property 1105 Spruce street, Philadelphia, for the sum of $22,500. This property was purchased by her as a residence for appellant and in her will she provided “ that the house No. 1105 Spruce street, which I have purchased for my said adopted daughter Florence to live in, shall be held by the trustees named in my will for the said Florence and her children, under the same limitations, conditions and upon the same trusts as are set forth in the second section of this, my will. Should the said Florence at any time desire to change her residence, I direct that the said house may be sold if she desires and the proceeds applied to the purchase of another house, and I direct that the said house so purchased shall be held by the said trustees upon the same trusts and in the same manner as herein directed.”

In 1899 testatrix bought for the appellant the property situated at 1621 Spruce street for the sum of $9,250, subject however to a mortgage of $20,000, payable in December, 1900. She bought this property as a residence for appellant who accordingly moved into it from 1105 Spruce street and has since with her family resided there. By a codicil to her will dated January 10, 1901, Miss Benson provided as follows:

“As I have purchased the property No. 1621 Spruce street for the residence of my adopted daughter Florence, who has removed there from 1105 Spruce street, I order and direct that the said house 1621 Spruce street shall be held by my trustees upon the same trusts and in the same manner as set forth in the second section of my will. . . . Except as to the changes herein made, I hereby ratify, confirm and establish my said will and the former codicils thereto.”

The appellant contends that testatrix by her will intended that both bequests were to be operative and that accordingly she is entitled to the rents of the one and the right to occupy the other as a residence. Appellees contend that she intended the bequest in the codicil alone to be operative and to be substitutional of the first and that therefore the appellant is not entitled to the rents of 1105 Spruce street. Testatrix originally provided a trust in behalf of this adopted daughter in the sum of $200,000, the income of which to be paid to her during life, but subsequently she cut down somewhat the principal of such trust fund. Clearly she intended to give appellant a substantial income and to couple with it a house for the residence of herself and family. In the first instance she purchased No. 1105 Spruce street for her “ to live in ” and in case she desired to “ change her residence ” she authorized this house to be sold and the proceeds “ to be applied to the purchase of another house.” Manifestly she intended that after her death appellant should not be compelled to continue to live at the one place designated, but should, in case she should desire to do so, be permitted to select another place for her home. In that event the first should be sold and the proceeds of the sale used for the purchase of one to be substituted, but before her death appellant changed her residence to 1621 Spruce street, which testatrix had purchased for her as a residence in lieu of 1105 Spruce street and accordingly to carry out this substitutional intention she directed by her codicil, “ as I have purchased the property No. 1621 Spruce street for the residence of my adopted daughter Florence who has removed there from 1105 Spruce street, I order and direct that my said house No. 1621 Spruce street shall be held by ray trustees upon the same trusts and in the manner as set forth in the second section of my will.” It is clear that the purpose of the testatrix as expressed in her will and codicil was that appellant should have a house for a residence. In the first instance, that house was No. 1105 Spruce street, but by the codicil this original intention as to that house was changed by substituting No. 1621 Spruce street. The words of the will and the codicil used to accomplish her purpose import a substitutional intention and their construction to that effect has the warrant of judicial determination.

In Sims v. Sims, 10 N. J. Eq. 158, it is said that when a legacy is given for a particular purpose and it is executed by the decedent in his lifetime, the presumption arises that there was the intention to cancel the legacy. In Hine v. Hine, 39 Barb. 507, this principle, after careful consideration, is recognized.

In Miner v. Atherton, 35 Pa. 528, it is said : “ A legacy by a father to a child is understood as a portion, because it is a provision by a parent for his child. If the father afterwards advances a portion for that child, it will be an ademption of that legacy, in whole or in part, as the advancements are larger or equal to, or less than, the testamentary portion.”

In Tussaud v. Tussaud, L. R. 9 Ch. Div. 363, it is said: “As I understand the law, the court presumes that the parents, including in the term ‘ parents ’ the person or persons standing in the place of the parents, do not intend to give double portions to their children.”

In Benyon v. Benyon, 17 Vesey, 34, it is said: “ Where the same quantity has been given, and the same cause, or no additional reason assigned for a repetition of the gift, the court lias inferred the testator’s intention to be the same and has rejected accumulations.”

In Swoope’s Appeal, 27 Pa. 58, it was held that where there is nothing on the face of the will and no circumstances to indicate an intention to give a double portion, the advancement will be a satisfaction or ademption of the legacy.

From the object intended to be accomplished by the testatrix, from the occupancy of the first house as a residence, from the removal to the second house for the continuing purpose, from the words used in the original will and from those used in the codicil it is evident that the intention of the testatrix was to make the gift of the second substitutional for the first. The mortgage for $20,000 upon 1621 Spruce street matured some two years before the death of the testatrix and she did not satisfy it though amply able to do so. There is no evidence to warrant the conclusion that by her will she intended it to be paid off, after her death.

Therefore the assignments of error are not sustained and the decree is affirmed.


author: Mb. Justice Bbown,

text:
    Sickels, Appellant, v. Philadelphia.

      Negligence—Pavement—Sidewalk—Slippery ridge on sidewalk—Nonsuit.

    Where a woman in broad daylight approaches a slippery ridge eight inches high across a sidewalk, and with a full opportunity to see the ridge, steps upon it, falls and is injured, she is guilty of contributory negligence, and cannot recover damages from the city.
    Argued March 29, 1904.
    Appeal, No. 56, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., Dec. T., 1902, No. 3829, refusing to take off nonsuit in case of Anna Sickels v. City of Philadelphia.
    Before Mitchell, C. J., Pell, Bjrown, Mestrezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Beitler, J.
    The circumstances of the accident 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 refusal to take off nonsuit.

      Henry W. Scarborough, for appellant.
    The case was for the jurj^: Bruch v. Philadelphia, 181 Pa. 588; Graham v. Philadelphia, 19 Pa. Superior Ct. 292; Canavan v. Oil City, 183 Pa. 611; Mintzer v. Greenough, 192 Pa. 137 ; Sorrel v. Traction Co., 23 Pa. Superior Ct. 425; Iseminger v. York Haven Water, etc., Co., 206 Pa. 591; Brown v. White, 206 Pa. 106; Shaffer v. Harmony Borough, 204 Pa. 339 ; Quinlan v. Philadelphia, 205 Pa. 309; Butcher v. Philadelphia, 202 Pa. 1; Ryan v. Ardis, 190 Pa. 66 ; Glading v. Philadelphia, 202 Pa. 324 ; Wall v. Pittsburg, 205 Pa. 48 ; Miller v. Bradford, 186 Pa. 164; Kauffman v. Harrisburg, 204 Pa. 26; Merriman v. Phillipsburg Boro., 158 Pa. 78 ; Fee v. Columbus Borough, 168 Pa. 382; Nanticoke v. Warne, 106 Pa. 373; Henry v. Williamsport, 197 Pa. 465 ; Musselman v. Hatfield Borough, 202 Pa. 489; Mechesney v. Unity Twp., 164 Pa. 358; Mill Creek Twp. v. Perry, 20 W. N. C. 359.

      Harry T. Kingston, assistant city solicitor, with him John L. Kinsey, city solicitor, and Jos. iS. MacLaughlin, for appellee.
    The plaintiff was guilty of contributory negligence: Susquehanna Deport Borough v. Simmons, 112 Pa. 384; City of Erie v. Magill, 101 Pa. 616; Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582.
    The facts of the case were undisputed and the question of negligence was for the court, and the nonsuit properly entered : Hoag v. Lake Shore & Michigan Southern R. R. Co., 85 Pa. 293 ; King v. Thompson, 87 Pa. 365 ; City of Erie v. Magill, 101 Pa. 616; Mason v. Philadelphia, 205 Pa. 177.
    May 2, 1904:
   Opinion by

Mb. Justice Bbown,

In excavating a cellar at 905 Arch street, Philadelphia, the dirt was carted over the pavement on a plankway laid from the house line to the street. Some of it had fallen from the cart, forming a ridge seven or eight inches high across the pavement. It was yellow clay and had become very slippery from the rains of several days. Charles C. Hindemeyer and his brother, engaged in business on the adjoining property, were called by the plaintiff to describe the condition of the pavement. Both testified that the ridge across it was six or eight inches high and had become very slippery. The plaintiff herself corroborates them as to the condition of the pavement. In walking eastward she stepped on this slippery ridge, fell and was injured. On the ground of her contributory negligence, the trial judge directed the entry of a nonsuit, saying: “ This accident happened in broad daylight; there was nothing at all to interfere with the plaintiff’s seeing precisely where she was going. Every pedestrian using the streets of Philadelphia is obliged to use his eyes for his own protection. The plaintiff did not do that and is therefore nonsuited.”

With the slippery ridge before her on the pavement, it was the duty of the plaintiff to avoid it, instead of stepping upon it and taking the chance of passing safely over its dangerous surface. From her own testimony nothing can be found to relieve her from what must be regarded as her own negligence. Though it was a cloudy day and raining, it was broad daylight when she fell. If she had been exercising ordinary care by using her eyes and looking where she was going, the ridge could not have escaped her notice, and she would have been bound to avoid it, instead of experimenting with it. Scanning her testimony closely, the only conclusion to be drawn from it is that she was careless under the circumstances to a degree that amounted to negligence. She was not bound to exercise extraordinary care in walking on the street. What the law required of her was to avoid peril in her way by the ordinary and reasonable use of her eyes, and for her failure to so protect herself she cannot call on the city to compensate her for her injuries, even if it, and not an independent contractor, was negligent: Bruch v. Philadelphia, 181 Pa. 588; Iseminger v. York Haven Water, etc., Co., 206 Pa. 591.

Arch street is one of the main thoroughfares of Philadelphia, and people are constantly passing up and down it, but it was not so crowded at the point where the plaintiff was injured that the crowd interfered with her view of the pavement and the danger that was across it. She testifies that the nearest person in front of her was six feet distant. If this was so, that person was on the east side of the cartway when she stepped on the ridge on the west side. It cannot, then, be pretended that passers by prevented her seeing what was before her. But she says her umbrella was up, and, as the rain was coming from the east, she held it “ somewhat in front ” of her to protect herself. She adds, however, that she was looking ahead of her, but was rather looking down.” Assuming this to be true, she must have seen the slippery ridge before she stepped on it and took the risk of crossing it in safety ; and, if she did not see it, she could not have been looking where she was going. This, in brief, was the situation, and, whether she looked or did not, her negligence confronts her in this proceeding and stands in the way of her right to recover. While we affirm the judgment of nonsuit for the reason given by the trial judge in directing it to be entered, if he had held that there was no evidence of the negligence of the defendant, it would not have been error.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Luzerne County, Appellant, v. Kirkendall.

      Public officers—Treasurer of Luzerne county—Fees—Acts of April 11, 1866, P. L. 711, and March 31, 1876, P. L. 13.
    Under the Act of March 31, 1876, P. L. 13, the treasurer of Luzerne county, which county has a population of over 150,000 inhabitants, cannot retain for his own use the fees provided by the local act of April 11, .1866, for issuing mercantile licenses.
    Argued April 14, 1904.
    Appeal, No. 79, Jan. T., 1904, by plaintiff, from order of C. P. Luzerne Co., May T., 1901, No. 559, overruling exceptions to report of referee in case of Luzerne County v. Fred C. Kirkendall, County Treasurer of Luzerne County.
    Before Mitchell, C. J., Dean, Fell, Mestrezat and Potter, JJ.
    Reversed.
    Exceptions to report of George H. Troutman, Esq., referee.
    The parties entered into the following agreement as to the facts :
    Now April 24, 1903, in order to dispense with the calling of witnesses on the trial of this case for the purpose of proving matters not in dispute, it is agreed by the parties to this suit that during the year 1900 (the year embraced by the county controller’s report appealed from in this case), the defendant, Fred C. Kirkendall, then treasurer of Luzerne county, Pennsylvania, as such treasurer, received fees regulated and provided for by the Act of April 11, 1866, P. L. 711, as follows:
    For 3,000 mercantile licenses issued by him as such treasurer during said period, for which the fee provided by said act of assembly in each instance was $1.50, the sum of $4,500.
    And, also, for other licenses mentioned in said aQt of assembly and issued by him-as such treasurer during said period, for which the fee provided by said act of assembly in each instance was fifty cents, the sum of $137.50.
    It is further agreed that said defendant has not paid said sums into the treasury of said county, but has retained them, claiming them as his own.
    It is also agreed that Luzerne county, Pennsylvania, has now and had during the period mentioned and at the time of the election of the defendant to said office of county treasurer, more than 150,000 inhabitants; and that the salary of the defendant during his term of office, including said year of 1900, was fixed by the provisions of the Act of March 31,1876, P. L. 13, and that he received such salary from said county in accordance therewith.
    And it is agreed that said defendant received from the commonwealth of Pennsylvania the commissions allowed county treasurers on the amounts collected and forwarded by him to the said commonwealth, in said year of 1900, as mercantile taxes.
    The referee found in favor of the defendant.
    Exceptions to the referee’s report were dismissed by the court.

      Error assigned was in dismissing exceptions to report of. referee.

      Charles E. Terry, with him William S. McLean, county solicitor, and A. L. Williams, for appellant.

      John T. Lenahan, with him Edward A. Lynch, for appellee.
    May 2, 1904:
   Opinion by

Mr. Justice Potter,

The defendant, Fred C. Kirkendall, was elected county treasurer of the county of Luzerne, at the November election, 1899, to serve for the term of three years from the first Monday of January, 1900. He duly qualified and assumed the duties of the office. Luzerne county, having more than 150,000 inhabitants, the salary of the county treasurer is fixed by the Act of March 31, 1876, P. L. 13, at $5,000 per annum. During the year 1900, pursuant to section 3 of the local Act of April 11, 1866, P. L. 711, entitled “ An act to -regulate the fees of the county treasurer of Luzerne and Clearfield counties,” the defendant collected fees for 3,000 mercantile licenses issued by him as county treasurer during said period, for which -the fee provided by said act of assembly in each instance was $1.50, the total sum collected for such licenses being $4,500. He also received fees for certain other licenses collected under said act, for which the fee provided in each instance was fifty cents, making a total sum for such other licenses of $137.50. These sums have not been paid by defendant into the treasury of the county but have been retained by him as his own. The county controller in his report of the receipts and the expenditures of Luzerne county for the year 1900 did not charge the treasurer with these sums, simply allowing credit for $5,000 salary paid to the county treasurer. Under the provisions of the act of June 12, 1878, ten taxpayers of the county appealed from the report of the controller to the court of common pleas. An issue was framed and the case was referred, the referee reporting in favor of the treasurer. His report was confirmed by the court and judgment entered for defendant from which the county appealed. The appellee received from the state the commissions allowed him by it, on the mercantile licenses and other taxes, for their collection and remittance, and in addition thereto he claims these fees.

It is declared by sec. 5, art. XIV, of the constitution, that “ the compensation of county officers shall be regulated by law, and all county officers who are or may be salaried, shall pay all fees which they may be authorized to receive, into the treasury of the county or state, as may be directed by law. In counties containing over 150,000 inhabitants, all county officers shall be paid by salary; and the salary of any such officer and his clerks, heretofore paid by fees, shall not exceed the aggregate amount of fees earned during his term and collected by or for him.” And the Act of March 31, 1876, P. L. 13, in sec. 1, provides that in counties containing over 150,000 inhabitants, “ all fees limited and appointed by law to be received by each and every county officer ” shall belong to the county; “ and it shall be the duty of each of said officers to exact and receive all such fees to and for the use of their respective counties, except such taxes and fees as are levied for the state, which shall be to and for the use of the state : and none of said officers shall receive for his own use, or for any use or purpose whatever except for the use of the proper county or for the state, as the case may be, any fees for any official services whatsoever.” Section 13 fixes the salaries of county officers in counties having less than 300,000 and more than 150,000 inhabitants, the salary of county treasurers being fixed at $5,000. Section 15 provides that “ the salaries fixed and provided by the foregoing provisions, shall be in lieu of all or any moneys, fees, perquisites or mileage which are now or may hereafter be received by any officer named in this act; and all said moneys, fees, mileage or perquisites, received by any of them as compensation, fees or perquisites, from any source whatever, shall in all cases belong to the county, and shall be paid into the treasury (except where required to be paid to the state) as provided in this act.”

The plaintiff contends that the fees collected under the act of April 11,1866, by the defendant, are within the provisions of the constitution and of the act of March 31,1876, and should therefore he paid into the county treasury. On the other hand the defendant contends that in collecting the mercantile licenses, etc., he is acting solely as an agent of the state, the fees being part of his compensation by the state for his services.

With this latter contention we cannot agree. For his services to the state the defendant has been paid a commission upon the amount collected. To the “ fees ” now under consideration, the state makes no claim. They belong either to the defendant or to the county. The fees were not paid by the state, but by the individuals who obtained the licenses, and they were paid to the defendant as county treasurer. Our Brother Dean in Com. v. Mann, 168 Pa. 290, thus comments (p. 299) on the act of March 31, 1876: “When .... the legislature .... declared ‘ all fees ’ which the county officers were ‘ entitled to charge or receive shall belong to the county in and for which they were severally elected and appointed,’ it meant and only could mean, all the fees pertaining to the county officer, and which, from the character of the office, the incumbent earned and received.” It is clear that in the present case the fees in question were earned by the defendant in his character as county treasurer, and that they were an attribute of the office, and in no sense pertained to the defendant as an individual.

The principle upon which Schuylkill Co. v. Shoener, 205 Pa. 592, was decided, is controlling here. Under section 3 of the act of July 30,1897, each applicant for a liquor license is required to pay the clerk of the quarter sessions, $5.00 when he files his petition, for expenses connected therewith; and the clerk is required to advertise such applications in a particular manner. In that case the clerk of quarter sessions for Schuylkill county refused to pay into the county treasury such amounts as were paid him by the applicants, on the ground that the act created a special fund for expenses of advertising, and for his own legal expenses, and claimed that after paying all expenses the balance belonged to him, and was not an earning of the office within the meaning of the act of March 31, 1876, but was in the nature of a special fee for services rendered. This court, however, held that such sums were fees within the act of 1876 and as such should be paid into tbe county treasury. By referring to the act of 1897 it appears that the purpose of the act is to raise revenue for the state. The license fees provided for under section 1 of the act are to be collected by the county treasurer for the use of the commonwealth, and are to be turned over to the state treasurer. So that every element appeared in that case, which can be urged in support of the claim of the defendant here. In that case as in the one now before us, the fees which were the subject of the contention, came from the individuals who were applying for licenses, and in each case the county officer received for his services an extra sum, which was in addition to the amount paid for the license. The state in both caseg receives the license fee, and allows the officer a commission for its collection, but the state has nothing to do with the small additional sum, which is apparently intended to cover the cost of making out and issuing the license, and as such it can only be regarded as an earning of the office.

We are clear that the fees collected by the defendant' in this case are within the provisions of the constitution, and the act of March 31, 1876, and that they belong to the county. ■ They should have been paid into its treasury on or before January 7, 1901. The county is therefore entitled to judgment for the amount of the license fees thus wrongfully withheld, viz: $4,637.50, and interest thereon from that date.

The judgment of the court below is now reversed, and is here entered for the county of Luzerne, and against the said defendant, for the sum of $5,557.26.


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    Quakertown & Eastern Railroad Company, Appellant, v. Guarantors’ Liability Indemnity Company of Pennsylvania.

      Interpleader—Ownership of bonds—Attorney’s lien—Practice, C. P.

    An equity suit was instituted by a railroad company to recover certain bonds owned by it. The suit was settled, but before the defendants had returned the bonds they were notified by an attorney for the plaintiff that he had a lien on the bonds for his services and warned the defendants not to deliver the bonds to the plaintiff. The defendants thereupon with permission of the court deposited the bonds with the prothonotary, and an interpleader was framed to determine the rights of the attorney to the bonds. The court found that the attorney had a lien, but its decision was reversed by the Supreme Court. Subsequently the defendants disclaimed any ownership in the bonds. Held, that after the decree of the lower court had been reversed the plaintiff was entitled to the bonds.
    Argued March 30, 1904.
    Appeal, No. 17, Jan. T., 1904, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1898, No. 580, discharging rule to deliver certain bonds in the custody of the court to plaintiff in case of Quakertown & Eastern Railroad Company v. Guarantors’ Liability Indemnity Company of Pennsylvania et al.
    Before Mitchell, C. J., Fell, Bbown, Mestjrezat and Thompson, JJ.
    Reversed.
    Rule to show cause why certain bonds in the custody of the court should not be delivered to plaintiff.
    The opinion of the Supreme Court states the case.

      Error assigned was order discharging the rule.

      John G. Johnson, with him Alfred N. Keim and Carroll Ii. Williams, for appellant.

      George S. Graham, for appellee.
    May 2, 1904:
   Opinion by

Mb. Justice Thompson,

In the case of Quakertown and Eastern Railroad Company v. Guarantors’ Liability Indemnity Company, reported in 206 Pa. 350, Mr. Justice Potteb, after giving in detail the history of the litigation that gave rise to the controversy in the present case, says:

“While these negotiations were pending, Mr. Terry requested his clients to arrange for the payment of his fees. This was not done to his satisfaction, and, in consequence, after arrangements had been made for the return of the bonds and the matter amicably adjusted, Mr. Terry refused to mark the case settled of record until his fees were in some way secured to him. The appellant company then took a rule on the prothonotary to show cause why the case should not be discontinued by plaintiff, the appellant company or its then counsel. This rule was discharged. Mr. Terry then notified the Guarantors’ Finance Company not to deliver any bonds in their possession to the appellant company. The Guarantors’ Finance Company, by its receivers, wishing to relieve itself of any liability to either the appellant company or Mr. Teny, filed a petition asking leave to deposit with the prothonotary of the court, eighteen bonds of the appellant company, and praying the court to order it and Mr. Terry to interplead for the purpose of determining the ownership of the bonds, and the amount of fees to which Mr. Terry is entitled, if any.”

Mr. Terry then claimed a lien for his fees upon these bonds and the appellant contended that as he had no lien there was no jurisdiction in the court below to adjudicate upon his claim for fees. While the question of jurisdiction was at issue its determination rested upon the existence of a lien on behalf of Mr. Teny. Without such lien the jurisdiction necessarily failed and Mr. Justice Potteb said :

“ From this action of the court and the decree entered in pursuance thereof, this appeal is taken. We are confronted at the outset with the question of jurisdiction in the court below and of its right to thus adjudicate the claim of Mr. Terry for fees. In our judgment no good reason can be given for sustaining the assumption of jurisdiction in this matter. Mr. Terry had no lien upon the bonds of the defendant company, either while they were in the custody of the guarantor’s company or after they were deposited with the prothonotary. It is a well recognized general rule of law that an attorney has a lien, or rather a right of defalcation, on money or papers of his client while they are in his hands, but in a common-law action he has no such right of lien on his client’s money in the hands of third persons, or upon a fund brought into court for distribution.”

And again he says: “ It cannot be contended that Mr. Terry has not. an adequate and complete remedy at law, and having that remedy, we see no reason why he should not be required to establish the amount of his claim before a jury as other litigants whose claims are disputed are required to do.”

The judgment having been reversed a rule was granted as follows : “ to show cause why the eighteen (18) first mortgage bonds with all coupons attached thereto, of the Quakertown and Eastern Railroad Company, now in the custody of the court, shall not be delivered to the appellant, the Quakertown and Eastern Railroad Company, or its attorneys, Alfred N. Keim, Carroll R. Williams and'John G. Johnson, Esqs.” This rule was discharged and an order made that “ said bonds shall be returned by the prothonotary of the court to the said receivers, upon receipt therefor.” This decree and the discharge of the rule are assigned as error.

On the day following this rule, the receivers by letter addressed to counsel for the Quakertown and Eastern Railroad Company repeated their disclaimer of any interest in the bonds as stated in the petition for interpleader. In that petition it was averred by the petitioners that they had no interest in the bonds and they desired to be permitted to deliver them into court and prayed, upon such delivery, to be discharged from all liability on account of the same to any person. The decree made upon this petition, upon making Mr. Terry a party, permitted the petitioners to deliver to the prothonotary of the court of common pleas, the bonds specified and upon their delivery to be discharged from all liability on account of the same to any person. These bonds were deposited to be delivered to the parties who might be entitled to the same. If Mr. Terry has no equitable title to or lien upon them, the party who is entitled to them is clearly the Quakertown and Eastern Railroad Company. Mr. Terry gave notice that as to the extent and value of his services he had an equitable title to them and this notice was doubtless based upon the receipt given by Dimner Beeber, Esq., one of the receivers of the Guarantors’ Finance Company to hold these bonds “ until the said company settle with Mr. Terry and discontinue the bill in equity filed by the company against the Guarantor’s Finance Company.”

An auditor was appointed by the court and he fixed Mr. Terry’s fee in an amount to be paid by a portion of these bonds and upon an appeal from the decree of the court below affirming his report, his contention was that he had a lien upon such bonds. It was, however, decided that he had no lien upon them either while held by the Guarantors’ company or after their deposit with the prothonotary. If that decision settled anything beyond question it was that Mr. Terry had no lien upon these bonds. The petition averred that he claimed to be “ an equitable owner” of the.bonds and it was upon the ground of such ownership that the court below undertook to fix bis fee to be paid by the same. This assertion of equitable ownership was the essential element in that determination and upon its reversal by this court such alleged ownership was swept away and his assertion of title or lien was decided to be without substantial basis. He however now suggests that there then was not called to the attention of the court the receipt of the receivers for the bonds and that in accordance with it they were to be held until the company settled with Mr. Terry and he discontinued the equity suit. The claim of equitable ownership being based upon the receipt this court in resolving the then contention gave due consideration to it and the facts connected with it. He contends that as this court held that “ we cannot justify the court in assuming jurisdiction of the matter in dispute ” its effect was to render void the decree on the petition for interpleader permitting the receiver to deposit these bonds and therefore they are now in the hands of the prothonotary to await the settlement with Mr. Terry and the discontinuance of the equity suit.

The want of jurisdiction sprang from the fact that he had no claim upon the bonds deposited in court and if so it is manifest that he cannot now successfully claim an equitable title which that decision distinctly and clearly negatives. The decree in the petition for interpleader was not made void but the decree awarding to Mr. Terry $6,500 of these bonds was reversed because he had no equitable claim or lien upon such bonds whether' in the hands of a third party or in the custody of the court. The bonds are therefore in court to be delivered to the parties who may be entitled to the same. The receivers have no claim and distinctly disclaim any and Mr. Terry has none under the decision of this court. The only claimant who has any title or claim to the same is the Quaker-town and Eastern Railroad Company.

It is but proper to add that Mr. Terry unquestionably rendered valuable services and is entitled to compensation therefor. •

The assignments of error are sustained, the decree reversed and the record is remitted with directions to make the rule of September 16, 1903, absolute.


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    Dunkle, Appellant, v. City Passenger Railway Company.

      Negligence—Street railways—Collision between car and sleigh—Fright of horse.

    In an action against a street railway company to recover damages for personal injuries it appeared that the accident occurred on a dark night. The plaintiff was driving a sleigh along a street on which the defendant operated a street railway. When the sleigh was 150 to 200 feet from an approaching car the horse backed upon the track. Plaintiff succeeded in getting him off, and when moving on the outside of the track, and when the car was about fifty feet away, he hallooed and shouted to the motorman to slow up. Just at this time the horse backed upon the track again, and a collision occurred in which the plaintiff was injured. The evidence showed that the car was running about four miles an hour, that the motor was in proper order, and the headlight properly lighted. The car was under control and stopped within fifteen feet after it struck the sleigh. Held, that the trial judge committed no error in directing a verdict for the defendant.

      Argued April 18, 1904.
    Appeal, No. 268, Jan. T., 1908, by plaintiff, from judgment of C. P. Blair Co., June T., 1902, No. 190, on verdict for defendant in case of L. G. Dunkle v. City Passenger Railway Company.
    Before Mitchell, C. J., Dean, Brown, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bell, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial binding instructions were given for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      W. O. Fletcher, for appellant.
    The horse running upon the track produced the peril of the situation ; whether the motorman ought to have discerned and avoided the peril was under the evidence in this case a question for the jury: Gibbons v. Wilkes-Barre, etc., St. Railway Co., 155 Pa. 279; Waechter v. Second Avenue Traction Co., 198 Pa. 129.

      Thomas II. Greevy, for appellee,
    cited: Yingst v. Lebanon, etc., St. Ry., 167 Pa. 438; Smith v. Holmesburg, etc., Elec. Ry. Co., 187 Pa. 451; Hazel v. People’s Pass. Ry. Co., 132 Pa. 96.
    May 2, 1904:
   Opinion by

Mr. Justice Thompson,

The failure of duty from which springs the alleged negligence on the part of the appellee is limited to a very narrow compass. When the accident occurred the car of the appellee was running at a moderate rate of speed not exceeding four miles an hour. It was dark and the headlight of the car was properly lighted, the motor was in proper order and the car under control. The motorman was in his place and attending to his duties. There was therefore no substantial ground for negligence arising from the condition of the car or its management. It was, however, alleged that appellee was guilty of negligence because its motorman did not stop the car in time to enable him to avoid the collision.

The accident occurred in the latter part of January, atan early hour in the morning, while it was dark. The appellant was going into Altoona in his sleigh and it being cold was warmly wrapped up. As he passed along one of the streets, some 150 or 200 feet from the approaching car, his horse backed upon the track. Having whipped him he succeeded in getting him off from it. When moving on the outside of the track, and quite near the approaching car, he hallooed and shouted to the motorman to slow up. Just at this time his horse backed upon the track and the accident then occurred. He had only time to halloo and to hold up his hand when the collision took place. He was unable to say how far the car was distant from him when the horse backed the second time upon the track, but he guessed it was fifty feet. He said he could not see the motorman because of the headlight and he could not say whether he heard him when he hallooed or not. The wife of the appellant was in the sleigh at the time and testified that she judged that the car was fifty feet away when her husband waved his hand and whip. That it all occurred “ so quickly, that it all happened at one time.” She seemed to think that if the motorman had looked he could have seen the whip when it was waved.

The argument that from this evidence negligence on the part of appellee might be deduced is inconsequential and this in-consequence becomes most distinctly so in connection with the testimony on its behalf. The motorman testified that when he first saw the horse and sleigh they were between fifty and sixty feet from him. They were outside of the track. The horse backed the sleigh upon the track and the car after striking it ran some ten or fifteen feet before it stopped. That he had the car under control with the power off. That he saw the horse back the sleigh upon the track and at once reversed the motor. That he heard the appellant halloo when the horse had backed upon the track but he saw no motion of the whip by the appellant. That the sleigh was on the outside of the track some fifty feet away. The horse was not backing but was moving along. That he only discovered the horse backing when the sleigh was about ten or fifteen feet from the car, that lie made every effort to stop it, and that the car was running about four miles an hour.

Tbe conductor of the car testified that it went about fifteen feet after it struck the sleigh. That he saw the appellant on the outside of the track clear of it and he saw him after he was struck. That the car was running about four miles an hour, and that he did not hear appellant halloo. The testimony of a passenger was substantially confirmatory.

This evidence does not warrant the conclusion that the motorman heard the appellant, or it being dark, that he saw or could have seen the motion of the whip made by appellant when he was outside of the track. The case therefore is one of that class of cases where the accident is caused by a horse suddenly becoming frightened and resulting in an unavoidable collision, where the evidence does not establish negligence: Yingst v. Lebanon, etc., St. Ry. Co., 167 Pa. 438; Smith v. Holmesburg, etc., Electric Ry. Co., 187 Pa. 451.

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