text:
    Pittsburg Construction Company v. West Side Belt Railroad Company, Appellant.

      Contracts — Liens — Railroads — Contractors — Resolutions of January 81,1848, P. L. 867, and April 4,1868, P. L. 885 — Foreign Corporation-Statutes — Constitutionality—Act of May 88, 1907, P. L. 805.

    1. On April 25, 1901, the defendant railroad company entered into a contract with an individual for the construction of an extension of its railroad. This contractor in turn made a contract on May 24, 1901, with the plaintiff, a foreign corporation, for the same work, which contract was guaranteed by the defendant company. The work was commenced by plaintiff in 1901 and prosecuted to completion in 1903. An arbitration followed and an award was made by the arbiter, to whom all disputes were referred by the terms of the contract. An action was then commenced by the plaintiff against the defendant company on the contract of guaranty, but plaintiff failed to recover because it was unregistered in this state at the time of the contract. Subsequently the plaintiff brought action under the provisions of the Act of May 23, 1907, P. L. 205, against the defendant upon the arbiter’s award, and recovered a judgment upon which a sci. fa. was issued, the plaintiff claiming a hen upon the railroad from the date of its contract under the resolutions of 1843 and 1862, whereby contractors, in the building of railroads, are given prior liens. This priority was contested by the trustee under a mortgage executed by the defendant and recorded July.l, 1907, to secure an issue of bonds. There was no allegation that the trustee, or any purchaser of the bonds, ever made any inquiry such as would have disclosed the lien of the plaintiff, nor is it alleged that anyone was actually misled. Held, (1) the Act of May 23, 1907, P. L. 205, which makes enforceable contracts theretofore made by unregistered foreign corporations and unenforceable by the Act of April 22, 1874, P. L. 108, while retrospective, is not unconstitutional; (2) the plaintiff is a contractor within the meaning of the resolutions, and not estopped from asserting the existence of that relation against either the defendant company or the trustee, by reason of having brought a previous suit in the capacity of subcontractor against the defendant upon its contract of guaranty.
    Argued May 1,1911.
    Appeal, No. 34, Oct. T., 1911, by Francis H. Skelding and Henry W. McMaster, Receivers, and the Colonial Trust Company, Trustee, from order of C. P. No. 4, Allegheny Co., Second Term, 1910, No. 595, making absolute rule for judgment for want of sufficient affidavit of defense in case of Pittsburg Construction Company, a corporation, v. West Side Belt Railroad Company, a corporation, with notice to Francis H. Skelding and Henry W. McMaster, Receivers of the West Side Belt Railroad Company, and the Union Trust Company of Pittsburg, Trustee, Mortgagee, and the Colonial Trust Company, Trustee, Mortgagee, Terre-Tenants.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Action on a scire facias sur judgment.
    The facts appear by the opinion of Swearingen, P. J;, making absolute rule for judgment, as follows:
    By this proceeding the plaintiff seeks to secure to itself the benefits of the resolutions of the general assembly of Pennsylvania, approved January 21, 1843, P. L. 367, and approved April 4, 1862, P. L. 235, whereby contractors, in the building of railroads, are given prior liens.
    The Pittsburg Construction Company, the plaintiff, is a corporation duly incorporated and organized under the laws of the state of West Virginia. The West Side Belt Railroad Company, the defendant, is also a corporation duly incorporated and organized under the Act of legislature of Pennsylvania, approved April 4, 1868, P. L. 62. On April 25, 1901, the West Side Belt Railroad Company entered into a contract with A. S. Petrie for the construction of an extension of its railroad. Petrie, in turn, made a contract with the plaintiff, May 24, 1901, for the construction of the said extension, which contract was guaranteed by the West Side Belt Railroad Company, John S. Scully and T. N. Barnsdall. The work was commenced by the plaintiff on May 20, 1901, and it prosecuted the same continuously until completion, June 11, 1903. An arbitration followed, and an award was made by the arbiter, to whom all disputes were referred by the terms of the contract. At No. 30, May Term, 1906, of the circuit court of the United States for the western district of Pennsylvania, the plaintiff brought an action against the West Side Belt Railroad Company, John S. Scully and T. N. Barnsdall, to recover upon the said guaranty. That litigation resulted in a decision that the plaintiff could not recover, because it was a foreign corporation and had not established a place of business and designated agents for the transaction of its business in Pennsylvania, at or prior to the time of the contract with the said A. S. Petrie, and, therefore, it was precluded from maintaining the action by the provisions of the Act of the legislature of Pennsylvania, approved April 22, 1874, P. L. 108. The plaintiff was, in fact, duly registered in Pennsylvania on June 15, 1901, twenty-two days after said contract was signed.
    By an Act of the legislature of Pennsylvania, approved May 23, 1907, P. L. 205, it was enacted:
    “That whenever any corporation organized and existing under the laws of any other State, and doing business within this Commonwealth, shall have heretofore entered into any contract, bond, or obligation with any person, firm, or corporation, without having first established a known place or places of business and designated an authorized agent or agents for the transaction of its business in this Commonwealth, the said contract, bond, or obligation shall be binding upon the parties thereto, and such corporations may enforce the same in the Courts of the Commonwealth:” then follow provisos naming certain requirements with which such a corporation must comply before it can avail itself of the provisions of said act.
    It is not disputed that the Pittsburg Construction Company did properly comply with all of the said requirements prescribed. Thereupon it brought an action against the West Side Belt Railroad Company at No. 398, Fourth Term, 1907, of this court. It declared both upon the award of the arbiter aforesaid and upon a quantum meruit. After trial, a judgment was entered in favor of the plaintiff and against the said defendant in the sum of $398,471.78, which was upon the said award, and was not upon the quantum meruit. The said judgment was affirmed upon an appeal to the Supreme Court. The plaintiff then issued this writ of scire facias, with notice to the receivers of the West Side Belt Railroad Company, having first obtained leave to join them, and with notice to the Union Trust Company of Pittsburg, trustee in a mortgage given by the West Side Belt Railroad Company to secure an issue of bonds, and also with notice to the Colonial Trust Company, trustee in another mortgage given by the West Side Belt Railroad Company to secure its guaranty of an issue of bonds of the Pittsburg Terminal Railroad & Coal Company. All of said parties have appeared and have answered the writ.
    The Union Trust Company of Pittsburg .averred that the mortgage, in which it appears as trustee, was dated September 1, 1897, and was recorded in the recorder’s office of said county of Allegheny on February 1, 1898, in Mortgage Book, vol. 837, page 1; that said mortgage was given to secure an issue of bonds aggregating $1,000,000 which were issued, certified and delivered, prior to the date of the plaintiff’s contract, and of which issue $383,000 are now outstanding; and that the plaintiff is, therefore, not entitled to a lien prior to said mortgage.
    The Colonial Trust Company denied that the plaintiff was a contractor within the meaning of the said resolutions of 1843 and 1862. It averred that the plaintiff had defined its position as a subcontractor, in the said suit in the United States circuit court, and cannot now claim as a contractor. It also averred that its said mortgage was executed prior to the time the plaintiff performed the labor and furnished the material, for which it claims a lien, to wit, from May 20, 1901, to June 11, 1903.
    In its amended answer, the West Side Belt Railroad Company, by its receivers, averred that the plaintiff was not a contractor, but was only a subcontractor, and that, therefore, it was not within the provisions of the said resolutions of 1843 and 1862. It further averred that the plaintiff had no claim against it, prior to the passage of said act of May 23, 1907; and it submitted that, in so far as the said act attempted to create a lien prior to said mortgage, it was unconstitutional, as being a taking of property without due process of law, and impairing the obligation of contracts.
    The Colonial Trust Company adopted said amended answer of the West Side Belt Railroad Company.
    The plaintiff then took this rule for judgment for want of sufficient affidavit of defense, and the case was argued and submitted.
    It cannot be seriously disputed that the plaintiff is entitled to a judgment upon this record. Whether or not it is entitled to the priority of lien, which it claims is a different question. It was admitted upon argument that this question can be determined upon this motion, and that the parties are not obliged to await a contest over the proceeds of a sale of the property.
    The plaintiff claims a lien upon the railroad of the defendant from the date of its said contract, to wit, May 24, 1901, under and pursuant to the said resolutions of 1843 and 1862, which are as follows:
    1843
    “That from and after the passage of this resolution, it shall not be lawful for any company incorporated, by the laws of this Commonwealth, and empowered to construct, make and manage any railroad, canal, or other public internal improvement, while the debts and liabilities or any part thereof incurred by the said company to contractors, laborers and workmen employed in the construction or repair of said improvement remain unpaid, to execute a general or partial assignment, conveyance, mortgage or other transfer, of the real or personal estate of the said company, so as to defeat, postpone, endanger, or delay their said creditors, without the written assent of the said creditors first had and obtained; and any such assignment, conveyance, mortgage or transfer, shall be deemed fraudulent, null and void, as against any such contractors, laborers and workmen, creditors as aforesaid.”
    1862
    “Whereas, It frequently happens that incorporated companies, by assignment, conveyance, mortgage or other transfer, divest themselves of their real and personal estate, in contravention of the provisions of the resolution of January 21st, 1843: therefore,
    “Section 1. That whenever any incorporated company, subject to the provisions of the above resolution, shall divest themselves of their real or personal estate, contrary to the provisions of the said resolution, it shall and may be lawful for any contractor, laborer or workman employed in the construction or repair of the improvements of said company, having obtained judgment against the said company, to issue a scire facias upon said judgment, with notice to any person, or to any incorporated company claiming to hold or own said real or personal estate, to be served in the same manner as a summons upon the defendant, if it can be found in the county, and upon the person or persons, or incorporated company claiming to hold or own such real estate; and if the defendant cannot be found, then upon the return of one nihil and service as aforesaid, on the person or persons, or company claiming to hold or own as aforesaid, the case to proceed as in other cases of scire facias on judgment against terre-tenants.”
    If it be held that the plaintiff is entitled to a lien from May 24, 1901, as it claims, this lien will have priority over the mortgage in which the Colonial Trust Company is trustee. The proposition of the plaintiff is therefore attacked by the defendant upon these grounds:
    1. The plaintiff is not a contractor within the meaning of said resolutions, and it is estopped from asserting that it is.
    2. The said act of May 23, 1907, in so far as it attempts to create a lien prior to the date of its passage, is unconstitutional.

      It was decided in the case of Pittsburg Construction Company v. West Side Belt Railroad Company, 227 Pa. 90, that the plaintiff could recover against the defendant as upon a primary liability. Judgment was there entered in favor of the plaintiff and against the defendant directly. Such recovery could not have been obtained unless it were held that the plaintiff and defendant had in effect direct contractual relations. That decision seems to be conclusive that the plaintiff was, in its relation to the West Side Belt Railroad Company, a contractor within the terms of said resolutions of 1843 and 1862.
    The argument was made that, as against the mortgage of the Colonial Trust Company, there was no notice of any claim of lien upon the part of the plaintiff and that there were no facts, from which a purchaser of the bonds secured thereby could infer the existence of such a claim. And it was urged, besides, that the plaintiff is estopped from now asserting, as against said mortgage, that its relation with the defendant was that of contractor, because it had asserted, in said action brought by it in the United States circuit court, that its relation was that of subcontractor.
    The lien of the mortgage of the Colonial Trust Company attached, if at all, July 1, 1902, more than thirteen months after the work of the plaintiff was commenced.
    The work itself imposed upon a purchaser of said bonds the duty of making an inquiry. If he had done so, he would have been bound to inquire fully. He could not have stopped merely with the two contracts, that of Petrie with the defendant and that of the plaintiff with Petrie, for in the latter the defendant expressly undertook to pay the plaintiff and also assumed other contractual relations with it. But, upon inquiry, he would have learned that the defendant’s railroad was being constructed by the plaintiff; and he would have been bound to inquire concerning all the facts and circumstances relative thereto. Then he would have learned the very facts and circumstances, which were afterwards determined to be sufficient to constitute the relation between the plaintiff and the defendant as in fact contractual, and which justified the Supreme Court in saying, when rendering its decision as aforesaid:
    “We conclude on both grounds that the written contract between Petrie and the Construction Company is the law governing the present case, quite as much as though the appellant’s name appeared therein as a contracting party.”
    There is no allegation that the Colonial Trust Company, or any purchaser of said bonds, ever made any inquiry, nor is it alleged that any one was actually misled. The basis of the contention is that a party must have been misled to his injury by want of notice. But if he was not misled, or if he could have obtained information by inquiry and he did not inquire how can he be heard to complain of want of notice? It seems to us that this is the situation of the Colonial Trust Company and of the holders of the bonds, secured by its mortgage, with respect to the contention there was no notice of the plaintiff’s claim. The lien claimed by the plaintiff is not a secret one. It is a right given by the legislature of the state. The work of construction was commenced long before the lien of said mortgage attached, and, as we have seen, inquiry would have disclosed the relations of the parties.
    Is the plaintiff estopped from asserting that it was a contractor, by reason of the position it is alleged to have taken in the United States circuit court? This inquiry has for its basis the principle, that a party is precluded from making an allegation, whereof he has previously alleged the contrary, or where the two positions taken are so antagonistic that one or the other must be untenable. Usually, though not always, some element of bad faith is involved.
    The suit in the United States circuit court was brought against the West Side Belt Railroad Company, John S. Scully and T. M. Barnsdall upon a contract of guaranty, the said three defendants having originally guaranteed the contract, 'which the plaintiff made with A'. S. Petrie. This contract of guaranty was joint, not several. Consequently, when the plaintiff sought to hold Scully and Barnsdall liable, the action had to be brought against them upon the guaranty, which was the only contract the plaintiff had with them. But, in order to maintain the action against Scully and Barnsdall, the- plaintiff was obliged to join the West Side Belt Railroad Company, because it also was one of the joint guarantors. It is apparent why the plaintiff brought the action as it did in the United States circuit court. That action was upon the contract of guaranty, and all the other allegations and contracts pleaded were incidental thereto. But, when the plaintiff brought its action in this court, it brought it upon the original contract, alleging a primary and not a secondary liability. If the defendant now finds itself in this dual situation, it has no one except itself to blame, because it voluntarily placed itself in both situations. Aside from this, however, we think the question of estoppel was involved in the case of Pittsburg Construction Company v. West Side Belt Railroad Company, 227 Pa. 90. If that be true, this is no longer an open question.
    We are, therefore, obliged to conclude that the plaintiff was a contractor within the meaning of the resolutions of 1843 and 1862, and that it is not estopped from asserting the existence of that relation, as against either the defendant, its receivers, or the Colonial Trust Company.
    Upon the second ground of defense, the counsel for defendant contends that, prior to the passage of the aforesaid act of May 23, 19.07, the plaintiff had no claim whatever under its contract, either with Petrie or with the defendant; that said statute can only speak from the date of its passage, as against the mortgage of the Colonial Trust Company; and that to construe it so as to give effect to the defendant’s contract, as of the date of the latter, would render the statute obnoxious to the constitutional provisions, which prohibit the taking of property without due process of law and the impairing of the obligation of contracts. These propositions were urged with great force and ability.
    It is not accurate to say that no contract between the plaintiff and the defendant existed, prior to the passage of the said act of 1907. Both parties had the power to make such a contract; they did make it; and the plaintiff performed all, and the defendant the greater part, of the obligations respectively undertaken. That both parties were under a moral obligation to fully perform it cannot be seriously disputed. That the plaintiff was likewise morally entitled to all the incidents of said contract, including the lien given by law, is equally indisputable. And, if both parties had fully performed the contract, no one, certainly not the Colonial Trust- Company, could have questioned their action. But the plaintiff could not invoke the aid of the courts to enforce performance, not because the contract was illegal or void, but solely because of the provisions of said act of 1874. This was a legislative inhibition, which the legislature had the power to remove at any time. When the legislature did remove the inhibition, as it did by the act of May 23, 1907, it placed the said contract in precisely the same condition in which it would have been, had the statute of 1874 never been enacted. It likewise made the contract an obligation, legally enforceable, with all its incidents, which was exactly what the parties intended it should be, when they signed the instrument on May 24,1901. The act of 1907 does not say that it speaks only from its date. On the contrary it validates and makes enforceable contracts theretofore made, but which were not enforceable because of the act of 1874. The date, to which the liability of the defendant is to be referred, is the date of the contract: Reed’s App., 122 Pa. 565. Therefore, by force of said act of 1907, the agreement between the plaintiff and the defendant became a valid and binding contract, as of the date of its execution and as to all its provisions and stipulations; and in consequence the award of the arbiter became a legal finding of the extent of the defendant’s liability thereunder. Upon said contract and upon said award the plaintiff was enabled to sustain a recovery, and upon no other ground.
    Does the construction herein given to said act of 1907 in any way impair the obligation of the contract between the Colonial Trust Company and the West Side Belt Railroad Company?
    It is undoubtedly true that said act is retrospective. But the act does not offend against the constitution, for that reason. It is only when such an act impairs the obligation of contracts, or authorizes the taking of property without due process of law, that it is held unconstitutional. In this respect there is no distinction between retrospective and prospective acts. It must be borne in mind that it is the obligation of a contract, which the State is prevented from impairing. What is that obligation?
    “A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obligation of his contract:” Sturges v. Crowninshield, 17 U. S. 122.
    The said act of 1907 in no way interfered with the rights and remedies of the Colonial Trust Company. Every right which it secured, when its mortgage was given, still exists unimpaired; and so does every remedy which the law or the contract then provided. In other words, the obligation of the contract between it and the defendant remained precisely the same after the passage of said act as it did before. If the said act relates back to the date of the plaintiff’s contract, as the plaintiff contends, the Colonial Trust Company and the holders of bonds secured by its mortgage will have exactly the same security they obtained, when the mortgage was given and the bonds purchased. The act does not take away one iota of their security. If, on the other hand, the said act speaks only from its date, as the Colonial Trust Company contends, it and the holders of said bonds will have a greater security than that for which they bargained and paid. For it must not be forgotten that every dollar’s worth of labor and material, which the plaintiff put into said railroad, increased the security of said bonds to the same or even greater extent. So that the equity of the contention of the Colonial Trust Company and of the said bondholders is not quite apparent. If, therefore, the Colonial Trust Company and the said bondholders have not been deprived of any right or of any remedy by the passage of the act of 1907, and we have seen they have not; and, if they had notice of, or could with reasonable diligence have ascertained, the relation between the plaintiff and the defendant, upon what possible ground can it be said that the act of 1907 impaired the obligation of their contract with the defendant? It seems to us there is none whatever, and that we must hold the act did not have that effect.
    Equally untenable is the position, that said construction of the act will result in the taking of property without due process of law. By no possible reasoning can it be shown that any property, in which the Colonial Trust Company has an interest, will be taken by said construction of the act. It has its lien: and it is the same lien which it had at the inception of its mortgage. Not a particle of the property, upon which it secured a lien, has been taken away. Therefore, it will not be deprived of any property at all, much less “without due process of law.”
    At the argument, it was conceded, and indeed upon this motion it must have been,"that the plaintiff was not entitled to a lien prior to that of the mortgage, in which the Union Trust Company of Pittsburg is trustee. The mortgage was executed and recorded, and the bonds secured thereby were issued, certified and delivered, long before the plaintiff made its contract with, or performed any work for, the West Side Belt Railroad Company.. Consequently that mortgage was a subsisting lien at the date of the plaintiff’s contract, and that lien, to the extent of the bonds of that issue still outstanding, cannot be displaced by the said resolutions of 1843 and 1862.
    Other questions have been raised in the briefs submitted, but in the view we have taken we do not think it necessary to prolong this opinion by their discussion.
    We think the rule for judgment should be made absolute. Let a formal order for judgment in accordance with this opinion be drawn by counsel and submitted.

      Error assigned among others was in making absolute rule for judgment for want of affidavit of defense.

      Thomas Patterson, of Patterson, Sterrett & Acheson, for appellant.
    — The lien claimed is a secret lien and void as against the bondholders, who bought without notice of the lien: Hart’s App., 96 Pa. 355; Kauffelt v. Bower, 7 S. & R. 64; Com.’s App., 4 Pa. 164; Fox v. Seal, 89 U. S. 424.
    The Pittsburg Construction Company is estopped from asserting that its relation with the railroad company was that of a contractor: Toope v. Prigge, 7 Daly (N. Y.), 208; Kaehler v. Dobberpuhl, 60 Wis. 256 (18 N. W. Repr. 841); Hidell’s App., 9 W. N. C. 212; Garber v. Doersom, 117 Pa. 162.
    In so far as the act of 1907 attempts to displace the lien of the bondholders it is unconstitutional. The question of the priorities of the various liens is exclusively a question for the United States circuit court: Central Trust Co. v. Condon, 67 Fed. Repr. 84; Central Trust Co. v. Bridges, 57 Fed. Repr. 753; Hassall v. Wilcox, 130 U..S. 493 (9 Sup. Ct. Repr. 590).
    The judgment against the railroad company on the contract is not conclusive against the Colonial Trust Company, trustee, in this proceeding: Central Trust Co. v. Condon, 67 Fed. Repr. 84; Cent. Trust Co. v. Bridges, 57 Fed. Repr. 753; Hassall v. Wilcox, 130 U. S. 493 (9 Sup. Ct. Repr. 590).

      Samuel McClay, with him Edwin W. Smith, Robert J. Dodds and Reed, Smith & Beal, for appellee.
    — The lien claimed is not a secret lien, and is not void as against the bondholders: Tyrone & Clearfield Ry. Co. v. Jones, 79 Pa. 60; Shamokin Valley & Pottsville R. R. Co. v. Malone, 85 Pa. 25.
    Bondholders are charged with both actual and constructive notice of the legal effect of the contracts. The Pittsburg Construction Company is not estopped of record from asserting that its relations with the railroad company were that of a contractor: White v. Smith, 33 Pa. 186.
    The Act of May 23, 1907, P. L. 205, is constitutional in so far as it affects the mortgage given to secure the guaranty of the bonds of the Pittsburg Terminal Railroad & Coal Company: Grim v. School Dist., 57 Pa. 433; Sturges v. Crowninshield, 17 U. S. 122; Provident Institution for Sav. v. Jersey City, 113 U. S. 506 (5 Sup. Ct. Repr. 612); Kring v. Missouri, 107 U. S. 221 (2 Sup. Ct. Repr. 443); Civil Rights Cases, 109 U. S. 3 (3 Sup. Ct. Repr. 18); Louisville & N. R. R. Co. v. Palmes, 109 U. S. 254 (3 Sup. Ct. Repr. 193); Louisiana v. New Orleans, 109 U. S. 285 (3 Sup. Ct. Repr. 211); Nelson v. St. Martin’s Parish, 111 U. S. 716 (4 Sup. Ct. Repr. 648).
    The question of the priority of the various liens must be determined in this proceeding, and is not for the United States circuit court: Reed’s App., 122 Pa. 565; Thomas v. R. R. Co., 101 U. S. 71; Pittsburg & Connellsville R. R. Co. v. Allegheny County, 63 Pa. 126; Gloninger v. Pitts-burg & Connellsville R. R. Co., 139 Pa. 13; Susquehanna Canal Co. v. Bonham, 9 W. & S. 27; Stewart’s App., 56 Pa. 413; Wilmington & Reading R. R. Co. v. Berks County R. R. Co., 6 W. N. C. 115.
    The judgment against the railroad company on the contract is a conclusive adjudication against the Colonial Trust Company, trustee, and the holders of bonds: Hassall v. Wilcox, 130 U. S. 493 (9 Sup. Ct. Repr. 590); Sicardi v. Oil Co., 149 Pa. 139; Nolt v. Crow, 22 Pa. Superior Ct. 113; Davidson v. Thornton, 7 Pa. 128.
    July 6, 1911:
   Per Curiam,

The judgment is affirmed on the opinion of Judge SWEAEINGEN.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Citizens’ Gas Company v. Whitney et al., Appellant.

      Ejectment — Notice of previous unrecorded conveyance — Appeals— Technical error induced by appellant — Ground for reversal.

    1. In an action of ejectment the case is for the jury and a verdict for the plaintiff will be sustained where there is evidence to warrant a finding that the two defendants had notice of an outstanding unrecorded conveyance of the premises to the plaintiff at the time of their respective purchases.
    2. In such a case, after there has been a just and fair trial upon the merits, a reversal is not made necessary by the fact that the court, induced by counsel for one of the defendants against objection of the plaintiff, erroneously ruled that the testimony of the other defendant, called by the plaintiff, as under cross-examination, should in no wise affect the other defendant, where the latter’s counsel, without relying on the ruling, treated the witness as competent for all purposes, and in cross-examination elicited an answer upon a material point, which it made part of its case.
    3. As a general rule a party who has induced the court to commit an error, against which the other side has protested, is thereby precluded from availing himself of it in any court of review.

      Practice, C. P. — Separate trials — Discretion of cburt — Ejectment— Joint defense.

    4. The granting of a severance in an action of ejectment rests on the discretion of the trial judge and his ruling will not be reversed unless there has been abuse in the exercise of that discretion.
    5. A severance in an action of ejectment is properly refused where one of the defendants is the lessor of the other, and the return to the writ shows both to be in possession of the premises; and they file a joint appearance and a joint answer setting up the privity of the title, and prepare all their pleadings with a view to making a joint defense, there being no reason why they should not so do.
    Argued May 1, 1911.
    Appeal, No. 200, Jan. T., 1910, by defendants, from judgment of C. P. McKean Co., June T., 1907, No. 63, on verdict for plaintiff in case of Citizens’ Gas Company of Port Allegheny v. B. L. Whitney and Bradford Gas Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Ejectment for land in Annin township. Before Bouton, P. J.
    The facts are stated by the lower court in its charge to be as follows:
    This is an action of ejectment brought by the Citizens’ Gas Company of Port Allegheny, a corporation, against B. L. Whitney, and the Bradford Gas Company, also a corporation, to recover possession of an oil and gas right in forty-two acres of land.
    It appears in this case that the title to this tract of land was in Joseph N. Sherwood in April, 1901; that Joseph N. Sherwood made a deed to the Citizens’ Gas Company dated March 23, 1904. This deed to the Citizens’ Gas Company was not recorded until March 22, 1906, when they placed it upon record in the recorder’s office of this county. It further appears that after the making of the deed to the Citizens’ Gas Company and before the recording of that deed, namely, on January 30, 1906, Joseph N. Sherwood made a deed for the same property to B. L. -Whitney, one of the defendants in this case, who immediately placed his deed on record, the deed having been made January 30, 1906, and placed upon the record February 1, 1906; following that, on February 6, 1907, which you will observe was over a year after Mr. Whitney got his deed, Mr. Whitney made a lease to the Bradford Gas Company for the purpose of operating for oil and gas on this same tract of land.
    Plaintiff presented this point:
    1. If the jury believed from the evidence of Whitney which is uncontradicted that the Bradford Gas Company had notice from him of the sale to. the Citizens’ Gas Company of the oil and gas rights in and to the land in controversy before taking its lease from Whitney, and if the jury find from the evidence that the defendant Whitney had notice from Sherwood or any other person interested in the premises of the said sale from Sherwood to the Citizens’ Gas Company at any time before the final completion of his purchase from Sherwood and delivery of the deed to him, the verdict must be for the plaintiff. Answer: We affirm this point. [2]
    Defendant presented these points:
    2. Under all the evidence in the case, the verdict should be for the defendant. Answer: We refuse this point. [3]
    9. That, it appearing that the defendant Bradford Gas Company was not in possession of any oil or gas on, in or under said land at the time of the service of the writ of ejectment upon it in this case, there can be no recovery against the Bradford Gas Company. Answer: This point is refused. [4]
    10. That under all evidence in this case, the plaintiff cannot recover against the Bradford Gas Company. Answer: This point is also refused. [5]
    The court charged in part as follows:
    [The evidence as to the notice to the Bradford Gas Company is the evidence of Mr. Whitney; you heard that evidence read; he tells you he did inform the representative of the Bradford Gas Company that Mr. Sherwood had sold the oil and gas, or that the Citizens’ Gas Company has a deed for the oil and gas. That evidence is uncontradicted. If you find Mr. Whitney is telling the truth, he is uncontradicted in the case; then you would be justified in finding that the Bradford Gas Company had notice of this conveyance and if you so find, then they could not recover. Mr. Whitney goes so far as to say as we remember his testimony that he told Mr. Shaw or the representative, whoever it was, of the Bradford Gas Company, that the Citizens’ Gas Company’s deed was on the record. Now, if that is so, then that was actual notice to the Bradford Gas Company that the Citizens’ Gas Company had a prior deed and they would get no title.] [6]
    Verdict for plaintiff and judgment thereon. Defendant appealed.

      Errors assigned were (1) in refusing the petition of the Bradford Gas Company for a separate trial; (2-5) answers to points as above; and (6) portion of charge, quoting it.

      John G. Johnson, with him W. E. Burdick and F. P. Schoonmaker for appellant.
    — The plaintiff’s deed was not recorded until after the expiration of three months from delivery.
    The plaintiff’s deed was therefore fraudulent and void under the provisions of the Act of May 19, 1893, P. L. 108: Poth v. Anstatt, 4 W. & S. 307; Hetherington v. Clark, 30 Pa. 393; Souder v. Morrow, 33 Pa. 83; Shaw v. Read, 47 Pa. 96; Fries v. Null, 154 Pa. 573; Duff v. Patterson, 159 Pa. 312.
    If a witness willfully and corruptly swears falsely to any material fact in a case the jury is at liberty to disregard the whole of his testimony: Com. v. Ieradi, 216 Pa. 87.
    When once a man has granted away his right, anything which he can do or say should not be received to affect another claiming under him: Hooker v. Pierce, 2 Hill (N. Y.), 650; Churcher v. Guernsey, 39 Pa. 84; Bugbee’s App., 110 Pa. 331.
    Clearly Whitney had no constructive notice and the recording of his deed inures in the nature of things to the benefit of all those who claim under him: Maul v. Rider, 59 Pa. 167; Davis v. Monroe, 187 Pa. 212; M’Lenahan v. Reeside, 9 Watts, 508; Friedley v. Hamilton, 17 S. & R. 70; Wilson v. Gilmore, 2 Lack. Jur. 13.

      J. E. Mullin with him D. H. Jack and Sheridan Gorton, for appellee.
    — The refusal of severance was in the discretion of the court. The Bradford Gas Company had actual notice of the appellee’s deed. The Bradford Gas Company having induced the court to commit that error, cannot now take advantage of it: Salt Lake City v. Smith, 104 Fed. Repr. 457.
    It would give a party an unjust advantage to let him pick out particular parts of a witness’ testimony and re-j ect the rest: Floyd v. Bovard, 6 W. & S. 75; Seip v. Storch, 52 Pa. 210; Shadle’s Est. (No. 1), 30 Pa. Superior Ct. 151; Hambleton’s Est., 166 Pa. 500; Clad’s Est., 214 Pa. 141.
    When the Bradford Gas Company was notified by Whitney of the existence and recording of the deed to the appellee it was its duty to inquire of the appellee regarding said deed: Ohio River Junction R. R. Co. v. Pennsylvania Co., 222 Pa. 573; Bartley v. Phillips, 179 Pa. 175.
    July 6, 1911:
   Opinion by

Mr. Justice Elkin,

This is an action of ejectment to determine the title and recover the possession of the oil and gas in and under certain lands described in the writ. The plaintiff never took actual possession of the land under its deed for the purpose of operating for oil and gas, but this is not a bar to its right to recover possession, as was decided in Barnsdall v. Bradford Gas Co., 225 Pa. 338. The suit having been properly brought, the only question for our determination is whether error was committed at the trial. The first assignment relates to the refusal of the trial judge to grant a severance upon the petition of the Bradford Gas Company. The general rule is that the granting of a severance in civil suits of this character rests in the discretion of the trial judge, and his ruling will not be reversed unless there has been abuse in the exercise of that discretion. We fail to find any such abuse of discretion in the present case as to warrant a reversal on this ground. The defendants filed a joint appearance and a joint answer and prepared all their pleadings with a view to making a joint defense. Certainly under such pleadings it cannot be said that one of the defendants was entitled to a severance as a matter of right. The Bradford Gas Company was a lessee of Whitney and necessarily stood upon the title of its lessor. If Whitney had no title, his lessee acquired no right or privilege. The return to the writ showed both defendants to be in possession of the premises. The joint answer of the defendants sets up the privity of their title which they undertake to assert and defend. There is nothing unusual about this joinder of defendants in actions of ejectment. The Act of March 21, 1772, 1 Sm. Laws, 370, provides that the landlord may defend with the tenant who has been sued in ejectment, while the Act of May 8, 1901, P. L. 142, clearly contemplates that all claimants to the premises, whether in possession or not, shall be made parties to the writ. The trend of decision and of statutory procedure in recent years, while requiring one in possession to be made a party, recognizes and approves the practice of joining all parties claiming title to or interest in the premises, and as a general rule this may be done without respect to privity of title or unity of interest. See Warvelle on Ejectment, sec. 96, and following pages. In the case at bar both defendants are in possession. They appeared jointly, answered jointly and there is no reason why they should not jointly defend. This is a case in which the plaintiff was entitled to have the whole controversy settled in one trial. The learned trial judge was clearly right in refusing to grant a severance.

The question of title involved here depends upon whether Whitney and the Bradford Gas Company had notice, actual or constructive, either or both, of the deed from Sherwood to the appellée company. This deed was executed first in point of time but was not recorded until after the deed to Whitney had been executed and recorded. If Whitney was a bona fide purchaser of the premises without notice of the unrecorded deed, he took a good title. If on the other hand he had notice of the outstanding unrecorded deed to appellee, he was bound by that notice, and took the risk of that being a valid conveyance. All of this was a question of fact to be determined by the jury under proper instructions by the court. The question was submitted to the jury and the verdict shows that they believed both Whitney and the Bradford Gas Company had notice of the conveyance to appellee at the time of their respective purchases. The evidence was sufficient to warrant such a finding. Indeed, upon a review of the whole record we do not see how any other conclusion could be reached. There is only one error called to our attention by the assignments which has any substantial merit. The evidence of Whitney shows that at the time of making the lease to the Bradford Gas Com-party he gave notice that the appellee company had a deed for the oil and gas in the premises and that the deed was then on record. There is no doubt as to the testimony of Whitney, and the only question is whether it could be considered as affecting the rights of the Bradford Gas Company.

The plaintiff called Whitney as if on cross-examination. The court ruled it was proper to do so but that his testimony on such cross-examination should in no wise affect the Bradford Gas Company. To that part of the ruling limiting the effect of the testimony upon the Bradford Gas Company the plaintiff excepted and a bill was sealed. The examination of the witness was then proceeded with at length. He was first examined by counsel for plaintiff, then cross-examined by counsel for the Bradford Gas Company and then re-examined on every phase of the question relating to the subject of notice. While the court had ruled that his testimony should not affect the Bradford Gas Company, counsel for this company undertook on cross-examination to elicit answers tending to show that the witness, Whitney, had not given any such notice. In other words, the parties themselves treated the witness as competent for all purposes and so conducted the examination. The court erred in its ruling limiting the effect of the testimony of this witness, but this error was induced by counsel for the Bradford Gas Company and was made over the objection of counsel for plaintiff. To make this error the ground of reversal would work a hardship on appellee company which had protested against it and would give an unfair advantage to the party inducing it. This ought not to be permitted unless imperatively required by rules of practice or of law. We think the rule announced in some of the federal courts is sound and covers this case. It was held in the United States circuit court of appeals, that: “They had not invited the error of that ruling, but had protested against it. This was all they could do. The plaintiffs had induced the court to commit an error, and were thereby prohibited from availing themselves of it in any court of review:” Salt Lake City v. Smith, 104 Fed. Repr. 457. The application of the rule depends to some extent upon the facts of each particular case and there may be cases in which it could not be applied without doing violence to established rules of law. In the present case no such barrier exists. The Bradford Gas Company did not rely on the ruling of the court limiting the effect of the testimony of this witness but undertook on cross-examination to strengthen its case by showing that Whitney had told its representative that he had no notice at the time of the purchase from Sherwood of the prior deed to plaintiff. This was the crux of the case and the point toward which the whole examination was directed. The Bradford Gas Company had the benefit of his answer and made it part of its defense. Under these circumstances we think it must be held to have waived, the limitation it induced the court to make and that it made the witness competent for the general purposes of the case. The trial judge in such cases has a large measure of discretion and may permit parties to elicit material facts in order to ascertain the truth without regard to the technical consideration of who called the witness: Gantt v. Cox & Sons Co., 199 Pa. 208. This was the substantial result of what was done in the present case. The ruling complained of was practically disregarded and the witness was examined by all parties with a view of ascertaining the truth. The court approved of this course of procedure as indicated by subsequent rulings and by questions frequently asked from the bench. As we view the record there was a just and fair trial upon the merits and we see nothing to warrant a reversal upon technical grounds.

The question as to constructive notice need not be discussed because the evidence was ample to show actual notice and the verdict of the jury establishes the fact.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Bovaird, Appellant, v. City of Bradford.

      Public officers — Municipalities—Treasurer—Compensation—Acts of May 23, 1889, P. L. 277, and May 18, 1901, P. L. 224 — Clerk hire— Failure of plaintiff to establish case.

    1. In an action of assumpsit by the city treasurer of a city of the third class against the city to recover a sum alleged to be due as salary for a clerk to the city treasurer under an ordinance of the city providing “that the clerk to the city treasurer .... shall receive an annual salary of $720. . . .” which ordinance was repealed after his election to the office, his claim being based upon the Act of May 23, 1889, P. L. 277,13 Par., sec. 3, art. 5, which directs that “no ordinance shall be passed increasing or diminishing the salary of any officer after his election or appointment,” a verdict is properly directed for the defendant where the plaintiff, being put to his proofs, did not attempt to show that any clerk had been appointed by himself or the city councils, and the testimony tending to show that a certain person in the office had acted as clerk was entirely insufficient to raise an issue of fact.
    2. If in such a case the failure to appoint, cast heavier duties upon the treasurer which he performed, such fact would, under no circumstances, give the treasurer any right to the salary of the clerk, and the increased labor would not be in diminution of his own salary.
    Argued May 2, 1911.
    Appeal No. 301, Jan. T., 1910, by plaintiff, from judgment of C. P. McKean Co., June T., 1908, No. 244, on verdict for defendant in case of William Bovaird, Jr., v. City of Bradford.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for clerk’s salary under ordinance of city of Bradford. Before Bouton, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in directing verdict for defendant.

      Rufus B. Stone, with him James George, for appellant.
    That the expense of necessary clerk hire must be deemed to be included in the compensation or salary of a public officer has been judicially determined: Bruce v. Dodge County, 20 Minn. 388.
    The effect, therefore, of the ordinance providing for the payment of clerical hire is within the prohibition of the act of 1889, forbidding the increase or decrease by municipal ordinance of the salary of a municipal officer: Olmstead v. N. Y., 42 N. Y. Super. Ct. 481; Shelby v. Alcorn, 36 Miss. 273; Hall v. Wisconsin, 103 U. S. 5; Com. v. Binns, 17 S. & It. 219; Riddle v. Bedford County, 7 S. & R. 386.

      F. P. Schoonmaker, for appellee.
    — The term salary means a reward or recompense paid for personal service; as applied to a public officer it means the compensation paid him for his personal services in discharge of the duties of his office: Windmiller v. People, 78 Ill. App. 273.
    An allowance for clerical hire would not therefore be a part-of the treasurer’s salary which is the “compensation paid for his personal services:” McCormick v. Fayette Co., 150 Pa. 190; Richie v. Philadelphia, 225 Pa. 511; Com. v. Black, 201 Pa. 433; Bigley v. Bellevue Boro., 158 Pa. 495.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

The city of Bradford is a city of the third class. The act of assembly governing cities of this class creates the office of city treasurer, and provides that such officer “shall receive a fixed annual salary to be provided by ordinance:” Act of May 23, 1889, art. 8, sec. 1, P. L. 277, as amended by Act of May 16,1901, sec. 23, P. L. 224. The act makes no provision for the election, appointment, or employment of a clerk to the treasurer; but the city council, by ordinance approved March 19, 1902, directed “That the clerk to the City Treasurer from and after the first Monday in April, 1902, shall receive an annual salary of $720, to be paid in monthly installments in the same manner that the salaries of other city officials are now paid.” At a municipal election in 1905 appellant was elected to the office of city treasurer, for the term of three years beginning the first Monday in April, 1905; he duly qualified and served out Ms term. Immediately preceding his entry into office, the city councils by ordinance approved' March 10, 1905, repealed the ordinance of March 19, 1902, providing a salary for the clerk to the treasurer. Appellant brought this action to recover from the city the sum of $2,349, which he claimed as clerical hire accruing under the ordinance of March 19, 1902, which was in force at the time of his election, basing his claim on the prohibition contained in the Act of May 23, 1889, <P. L. 277, 13 Par. sec. 3, art. 5, which directs that "no ordinance shall be passed increasing or diminisMng the salary or compensation of any officer after his election or appointment;” his contention being that the effect of the repealing ordinance was to diminish the salary or compensation of city treasurer, and that having been passed after his election to the office, if not entirely nugatory, it could become effective only after the completion of his term of office. As this record stands we are not called upon to decide the several questions raised on the argument. A demurrer must have proved fatal to plaintiff’s action. In the statement of claim filed it is averred that on February 27, 1905, plaintiff, by virtue of the provisions of said ordinance, appointed one Clinton J. Boyd as clerk to the city treasurer to serve during his said term of three years from April 1, 1905, and on the same day notified the mayor and city controller of the city of Bradford in writing of such appointment; that on April 3, 1905, the said Clinton J. Boyd entered upon his duties as said clerk to the city treasurer, which position he held and which duties he performed until April 6, 1908, the end of plaintiff’s term of office as said city treasurer, and of said Boyd’s appointment. Under this state of facts what possible right of action was in the plaintiff? The suit was for salary, but the salary was payable to the clerk, and to him alone. The plea of non assumpsit put the plaintiff to his proofs. And here he wholly failed. He did not attempt to prove that any clerk had been appointed by himself or by the city councils. ‘ His effort to prove that Boyd had acted as clerk was too feeble to raise an issue of fact. It was confined to the testimony of a single witness, whose testimony was as follows: “I did understand that there was a man in the City Treasurer’s office, but just what position he occupied relative to the City Treasurer I don’t know — he was performing duties, he and the Treasurer together were performing the duties of the office — his name was C. J. Boyd.” Not a particle of testimony beyond this was offered to show that a clerk had served at any time or for any period. Its insufficiency for the purpose is too obvious to call for discussion. If no clerk was appointed, and none served, no salary accrued. If by reason of failure to appoint heavier duties were cast upon the treasurer which he performed, such fact, under no conditions, would give the treasurer any right to the salary of the clerk. The increased labor would not be in diminution of his own salary. It is universally recognized that a change in the duties of an office during the term of the incumbent does not affect the compensation. See the authorities cited in 29 Cyc. 1424. “It is well it should be distinctly understood,” said Paxson, C. J., in Pierie v. Phila., 139 Pa. 573, “that county officers whose salaries have been fixed by the Act of March 31,1876, P. L. 13 have no right to extra charges for services pertaining to their offices and which have been cast upon them by law.” Verdict was properly directed for the defendant. The judgment is affirmed.


author: Per Curiam,

text:
    Kitchen v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Obstructed crossing — Invitation of brakeman to cross — Evidence—“Stop, look and listen” — Case for fury.

    In an action for damages for personal injuries, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that the accident occurred at a crossing of defendant’s road where there were three tracks; that the first was an unoccupied switch, and on the second track stood a long freight train which blocked the way; that the plaintiff waited near the first track between five and ten minutes, in a temperature several degrees below zero, when a brakeman walked back from the engine, uncoupled the cars and signaled the engineer, who drew part of the train off the crossing, leaving an opening some fifteen or twenty feet wide, through which the brakeman walked to the third track, turned and beckoned the plaintiff to come on; that before starting his horses the plaintiff stood up on the seat of his sled and looked and listened, and continued to look and listen, leaning forward, as he drove on the crossing; and that his sled was struck on the third track by a shifting engine running rapidly backward, of the approach of which no signal was given.
    Argued May 2, 1911.
    Appeal, No. 89, Jan. T., 1911, by defendant, from judgment of C. P. Warren Co., Sept. Term, 1910, No. 7, on verdict for plaintiff in case of William Kitchen v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for personal injuries. Before Hinckley, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff for $3,850. Defendant appealed.

      Error assigned was in refusing defendant’s point for binding instructions.

      U. P. Rossiter, of Rossiter & Thompson, for appellant.

      D. U. Arird, for appellee.
    July 6, 1911;
   Per Curiam,

The testimony in support of the plaintiff’s case clearly required its submission to the jury. The plaintiff approached the crossing of the defendant’s road where there were three tracks. The first was an unoccupied switch, on the second track there stood a long freight train composed of thirty-five or forty cars, which blocked his way. He waited near the first track between five and ten minutes, in a temperature several degrees below zero, when a brakeman walked back from the engine, uncoupled the cars and signaled the engineer, who drew a part of the train off of the crossing. This left an opening fifteen or twenty feet wide through which the brakeman walked to the third track, turned and beckoned to the plaintiff to come on. Before starting his horses the plaintiff stood up on the seat of his sled and looked-and listened for a train and continued to look and listen, leaning forward, as he drove on the crossing. His sled was struck on the third track by a shifting engine running rapidly backward and of the approach of which no signal was given.

The plaintiff stopped at a proper place, waited until the train was parted and a way opened for him to cross and went on at the invitation of defendant’s employee who was in charge of the situation, and in a position to observe any threatened danger. He did not then blindly rely upon notice from the brakeman but was vigilant to observe for himself. If, under the circumstances, he should have taken any further precaution, was not a matter that could be properly determined by the court: Guthrie v. Railroad, 222 Pa. 366.

The judgment is affirmed.


text:
    Ireland v. Ireland Advertising Agency et al., Appellants.

      Trusts and trustees — Construction—Shares of corporation — Intent to defraud — Collusive agreement — Annulment of contract — Equity.
    1. A decree in equity declaring a trust in favor of the plaintiff with respect to certain shares of stock held in his wife’s name and annulling a contract entered into between the latter and another defendant by which the latter was to receive a certain amount of capital stock in addition to salary for services to be rendered the corporation, will be sustained where the court has found, on sufficient evidence, that the plaintiff, on account of ill health, was indisposed to give personal attention to the business he had established; that contemplating a period of rest in travel, he executed a bill of sale of the business to his wife to invest her with legal title, for the sole purpose of enabling her, in his absence, to transfer it to a corporation thereafter to be created; that such corporation was formed with a capital stock of 2,000 shares, which represented nothing of value but the property included in the bill of sale, of which shares the wife received 1,840; that later the wife became president and treasurer, displacing the husband, and that then the wife, asserting her individual ownership of the stock, entered into the contract, with the other defendant, in pursuance of a scheme to exclude the plaintiff from all control over his property, in which scheme both were active participants; there being nothing in the evidence from which an intention to make a gift to the wife could be derived.
    2. In such a case a clause of the decree authorizing the plaintiff upon notice to call a meeting of the stockholders of the corporation for the purpose of electing officers and the transaction of other corporate business, will be stricken out, as being unnecessary and based on doubtful authority.
    Argued May 2, 1911.
    Appeal, No. 90, Jan. T., 1911, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1910, No. 2,123, in case of Howard I. Ireland v. Ireland Advertising Agency, Bertha D. Ireland and Howard M. Donovan.
    Before Fell, C. J., Elkin, Stewart and Moschzisker, JJ.
    Modified.
    Bill in equity to declare a trust ex maleficio, to annul a contract, for an injunction and an account. Before Wilt-bank, J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in certain findings of fact, and the decree of the court.

      E. Cooper Shapley, with him Frank B. Stockley, for appellants.

      Morton Z. Paul, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Stewart,

The finding by the chancellor to the effect that no gift to the wife or other person was intended by the bill of sale which the appellee executed covering all the assets of the advertising agency of which he was the sole owner, is conclusive of this case, except as it can be shown that such finding is without support in the evidence. The numerous assignments of error do not call for separate consideration. The one question in the case is, What was the real purpose and object of the bill of sale? The chancellor finds that the appellee, broken in health, from whatever cause, was for the time at least indisposed, if not unable, to give personal attention to the business he had established; that he contemplated a period of rest in travel, and that the bill of sale to the wife was simply to invest her with the legal title to enable her, in his absence from the country, to transfer it to a corporation thereafter to be created. In due time the corporation was formed, with a capital stock which represented nothing of value but the property included in the bill of sale, and which the appellant, Mrs. Ireland, turned over. The capital was divided into 2,000 shares of the par value of $5.00 per share, appellant receiving 1,840 of these, the remainder being gratuitously bestowed upon several who became directors. Later on the wife became the president, displacing her husband from that position, and treasurer of the corporation as well. The bill was to declare a trust in favor of the husband with respect to the 1,840 shares of stock held in the wife’s name, and to cancel and annul a contract entered into between the wife and Donovan, the other appellant, by which the latter was to receive a certain amount of the capital stock in addition to salary for services to be rendered as general manager of the corporation. It is vain to argue that the findings of the chancellor with respect to the purpose of the bill of sale and the joint participation of appellants in a scheme to deprive the husband of the ownership of his property, are without warrant in the evidence. It is made abundantly clear by the testimony of witnesses called by the appellants who were present when the bill of sale was suggested, and when it was executed as well, that all that was intended to be accomplished through it was the incorporation of the business. The incorporation was suggested as a means whereby the appellee could get respite from business cares and responsibilities. Not a witness testifies to anything from which an intention to make a gift to the wife could be derived. Even the wife herself asserts nothing that gives support to her contention of ownership. On her cross-examination she was asked whether her husband had ever suggested giving his business entirely over to her. Her answer was, "I do not remember.” She nowhere in her testimony asserts that her husband at any time before the execution of the bill of sale expressed an intention to make a gift of his property to her. Nor did any witness. The whole transaction shows conclusively that no gift was intended, and that the wife’s course during the absence of the husband abroad in the management of the corporation, and in the assertion of her individual ownership of the stock, was in clear violation of the husband’s rights.

Donovan, the other appellant, had been for years in appellee’s employ, and was perfectly familiar with actual conditions both as to the ownership of the property and the contemplated change of the business into a corporation. Immediately following upon the organization of the corporation, and the appellee’s departure from the country, and without the knowledge of the latter, he entered into a written contract with Mrs. Ireland, the wife, wherein Mrs. Ireland, asserting her individual ownership of 1,840 shares, agrees that Donovan shall become general manager of the corporation for a period of five years at a fixed salary, and in addition a certain amount of the capital stock held by her. This was not only an unwarranted assumption of power on the part of Mrs. Ireland, but such fact must have been known to Donovan. He knew of the bill of sale; he fully understood its purpose; he knew of Ireland’s absence from the country, and he must have known that what Mrs. Ireland was attempting to accomplish by the contract was the exclusion of her husband from all control over his own property. In this scheme the chancellor finds that Donovan was an active participant. It is enough to say that the evidence fully warrants the finding. The assignments of error are overruled.

By paragraph nine of the decree, the plaintiff, Howard I. Ireland, is authorized upon notice to call a meeting of the stockholders of the Ireland Advertising Agency, for the purpose of electing officers of the corporation, and the transaction of other corporate business. The decree without this feature provided full relief to the plaintiff. Its inclusion was not only not required for plaintiff’s protection, but the authority of the court to make such order, as the case stood, may well be doubted. The decree calls for amendment in this particular, and the ninth paragraph of the decree is accordingly stricken therefrom. As so amended the decree is affirmed and appeal dismissed.


author: Mr. Chief Justice Fell,

text:
    Commonwealth v. Cunningham, Appellant.

      Murder — Charge—Expression of court’s opinion in the evidence-r-Leaving jury free to act — ■Practice, O. T.

    1. It is the undoubted right of a judge and often it is his duty to express to the jury his opinion of the weight and the effect of the evidence. The only limitation of the right is that there must be sufficient ground for his statement and that it is not made as a binding direction, but leaves the jury free to act.
    2. In a trial upon an indictment for murder the case will not be remanded for new trial after a verdict of guilty of murder of the first degree because of an expression of the court’s opinion, possibly at variance with the aspect of the testimony most favorable to the defendant, in a charge which clearly and accurately defined the different degrees of murder, manslaughter and the right of self-defense, and which affirmed without qualification the defendant’s points covering every feature of the ease favorable to him, where the opinion expressed by the court is warranted by the defendant’s ovim account of the occur.rence, and because of the abundant caution repeated in the charge the jurors must have understood that they were entirely free to form their own judgment.
    Argued May 3,1911.
    Appeal, No. 71, Jan. T., 1911, by defendant, from judgment and sentence of O. & T. Phila. Co., June Sessions, 1910, No. 297, on verdict of guilty of murder in first degree in case of Commonwealth of Pennsylvania v. William Cunningham.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment on the charge of murder. Before Ferguson, J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were the certain excerpts from the court’s charge, quoted in the opinion of the Supreme Court.

      Louis A. K. Mellon and C. Stuart Patterson, Jr., for appellant.

      Joseph H. Taulane, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.
    July 6, 1911:
   Opinion bt

Mr. Chief Justice Fell,

The appellant was convicted of murder of the first degree in killing James McDevitt by cutting his throat with a razor. A statement of the occurrence favorable to the appellant is that after an altercation with McDevitt on the street in relation to a dog, he went home and returned to the street where half an hour later the altercation was renewed. McDevitt seized the appellant by the arm, and made a threatening remark and gesture. The appellant drew a razor from his pocket and inflicted the wound that caused death. The different degrees of murder, manslaughter and the right of self-defense were defined with exceptional clearness and accuracy in the charge, and the defendant’s points which covered every feature of the case favorable to him were affirmed without qualification. The assignments of error are to the following excerpts from the charge: “I do not believe there is anything in the case that would justify you in saying that the evidence warranted the defendant in killing McDevitt in self-defense. There was no weapon in sight, and I do not think the evidence would justify you in saying that he should be acquitted on the ground that he killed in self-defense. The same thing applies to manslaughter. But you are not bound by my opinion. I do not think the evidence warrants a verdict of manslaughter.” In immediate connection with these statements it was said: "I do not bind you by my opinion. If you believe the evidence justified a killing in self-defense, you have a right to say so; you are not bound by my opinion on that point or upon any other point in the case .... if you believe the evidence does justify it, in accordance with the law as I have given it to you, you are warranted in finding him guilty of manslaughter, notwithstanding my opinion.”

It is the undoubted right of a judge and often it is his duty to express to the jury his opinion of the weight and the effect of the evidence. The only limitation of the right is that there must be reasonable ground for his statement and that it is not made as a binding direction but leaves the jury free to act: McClain v. Com., 110 Pa. 263; Com. v. Orr, 138 Pa. 276; Com. v. McGowan, 189 Pa. 641. The opinion expressed by the judge was warranted by the defendant’s own account of the occurrence, and because of the abundant caution repeated in the charge, the jurors must have understood that they were entirely free to form their own judgment.

The judgment is affirmed and it is directed that the record be remitted for the purpose of execution.


author: Mr. Justice Mestrezat,

text:
    Gould et al., Appellants, v. Randal.

      Equity — Opening judgment — Real estate — Prior ejectment suit — Res adjudicata — Laches.
    1. Where in an action of ejectment the plaintiff claims title through a sheriff’s sale on a judgment and the defendant claims that the -plaintiff’s title is defective in that the bond on which the judgment was entered was void because the mortgage accompanying it was a nullity, that the vend. ex. on which the sale was made was void because it was issued after the death of the defendant in the judgment without notice to the latter’s legal representative and that the trial court had no jurisdiction because of the Act of April 20, 1905, P. L. 239, and the verdict in the ejectment suit is rendered for the plaintiff, the defendant in the ejectment is not entitled thereafter to maintain a bill in equity praying that the judgment entered on the bond be opened, and that ■all proceedings thereon be declared void; that the sheriff’s sale made thereon be set aside and the sheriff’s deed canceled; that the judgment be stricken off; that the complainant be authorized to make defense to the judgment, and that the administrator of the defendant in the judgment on the bond be required to make defense to the judgment.
    2. In such a proceeding the fact that the trial court in the ejectment case would not permit the judgment on which the real estate was sold to be attacked is immaterial, especially in the absence of any allegation that the judgment was collusive or intended to defraud complainant.

      Judgments — Collateral attack.

    3. A third party has no right to attack a judgment entered on a warrant of attorney either directly or collaterally in the absence of any allegation that such judgment was collusive or was entered to defraud such third party.
    4. A judgment entered by virtue of a warrant'of attorney, until set aside or reversed in an appropriate proceeding instituted for the purpose, has all the qualities and effect of a judgment entered on a verdict after a trial.
    5. A judgment will not be opened at the instance of the administrator of the defendant after the expiration of nine years where it appears that the judgment had been collected by execution process, and that the opening or setting aside of the.judgment would invalidate title to real estate depending on its validity.
    Argued May 8, 1911.
    Appeals, Nos. 75 and 76, Jan. T., 1911, by plaintiffs, from decree of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,224, dismissing bill in equity in case of Isador M. Gould and Alonzo Bell, Administrator of the Estate of Mary C. Bell, deceased, v. Harry L. Randal.
    Before Fell, C. J„ Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed;
    Bill in equity to open judgment entered on a bond and warrant accompanying a judgment, etc. Before Martin, P. J.
    The opinion of the Supreme Court states the case.
    The court dismissed the bill. Plaintiffs appealed.

      Error assigned was decree dismissing bill.

      V. Gilpin Robinson, with him B. I. DeYoung, for appellants.
    — The personal representative of Mary C. Bell should have been warned by scire facias: Walthaur’s Heirs v. Gossar, 32 Pa. 259; Bomberger v. Raymond, 2 Pa. Dist. Rep. 280; Diese v. Fackler, 58 Pa. 109; Taylor v. Young, 71 Pa. 81.
    The sale by-decedent in his lifetime of the premises does not affect the rule of law where a creditor seeks to levy on land as the lands of a decedent: Zuver v. Clark, 104 Pa. 222; Randal v. Gould, 225 Pa. 42; Wood v. Colwell, 34 Pa. 92.
    The bond was also void: Heburn v. Warner, 112 Mass. 271; Neale v. Dempster, 179 Pa. 569; Snyder v. Noble, 94 Pa. 286; Kern v. Mayhue, 20 Pa. Dist. Rep. 272; Good Hope B. Assn. v. Amweg, 22 Pa. Superior Ct. 143; Wilson v. Fitzgerald, 25 Pa. Superior Ct. 633.

      Stanley Folz, with him Leon H. Folz, for appellee.
    July 6, 1911:
   Opinion by

Mr. Justice Mestrezat,

We must affirm this decree or reverse our judgment in Randal v. Gould, 225 Pa. 42. That was an action of ejectment for the real estate involved in this controversy, and was brought in the court of common pleas No. 2 of Philadelphia county by the defendant in this proceeding against Gould, the plaintiff, who filed this bill. The plaintiff in the ejectment suit claimed title through a sheriff’s sale made on the judgment in which Mary C. Bell, wife of Alonzo Bell, was the defendant. The defendant claimed title through Mary C. Bell by a deed from Alfred F. Fisher who was the grantee of Mary C. Bell and her husband. The judgment on which the sheriff’s sale was made was entered about two years after the conveyance of the property by the Bells to Fisher, but on the trial of the ejectment the plaintiff alleged and the jury found that the sale of the Bells to Fisher was made to cheat and defraud Randal, and to hinder, delay and defraud him in the collection offthe debt due him from Mary C. Bell, and that Gould took title to the property with notice and knowledge of the fraudulent character of the conveyance. Gould contended that Randal’s title was defective, and set up as a defense that the bond of Mary C. Bell on which the judgment was entered in common pleas No. 5 of Philadelphia county was void because the mortgage accompanying it was a nullity, that the vend. ex. on which the sale was made by the plaintiff was void because it was issued after the death of Mary C. Bell without notice to her legal representative, and that the trial court had no jurisdiction because of the remedy provided by the Act of April 20, 1905, P. L. 239. The judgment in that case in favor of the plaintiff, affirmed by this court, judicially determined that these defenses were insufficient to defeat Randal’s title to the premises in controversy. This judgment concludes Gould not only as to matters relied on by him to defeat the action, but also as to all other matters of which he could have availed himself as a defense to the ejectment: Schwan v. Kelly, 173 Pa. 65; Dutton’s Est., 208 Pa. 350.

The present proceeding is a bill filed by Gould against Randal while the ejectment was pending, and prays that the judgment entered in common pleas No. 5 on the bond given by Mary C. Bell to Randal be opened and that all proceedings thereon be declared void; that the sheriff’s sale made thereon be set aside and the sheriff’s deed be canceled; that the judgment be stricken off; that Gould be authorized to make defense to the judgment, and that Mary C. Bell’s administrator be required to make defense to the judgment. The reasons and grounds set forth in the bill in support of the relief prayed for are substantially the same as those set up by Gould as a defense in the ejectment suit. The matters sought to be litigated in this proceeding have been determined in an action between the same parties in a court of competent jurisdiction and are, therefore, res adjudicata. The validity of Randal’s title to the premises in question was at issue in the ejectment suit. His title depended upon the validity of the bond of Mary C. Bell and the judgment entered thereon, and the subsequent sheriff’s sale by which the title was vested in Randal. These matters were adjudicated in that action and the judgment is conclusive as against Gould. The present bill raises the same issues and for the same purpose, to wit: to defeat Randal’s title to the real estate in controversy. Gould had his day in court in the ejectment suit and his rights adjudicated as to every question raised in this bill, and, therefore, the learned court committed no error in dismissing the bill on the ground that “the present proceeding is an effort to retry in a court of equity a cause already determined in a court of law.”

The appellant lays stress on the fact that on the trial of the ejectment case in common pleas No. 2 the court would not permit the judgment entered in common pleas No. 5 by Randal against Mrs. Bell on which the real estate was sold to be attacked. This was clearly right. It is not alleged that the judgment was collusive or was entered to defraud Gould, and hence he, as a third party, has no right to attack it either directly or collaterally: Drexel’s App., 6 Pa. 272. If, however, Gould had any standing to attack Randal’s judgment against Mrs. Bell on any ground whatever, except for fraud or collusion which is not alleged, he could not do so in the ejectment suit. The judgment was entered by virtue of a warrant of attorney, and until set aside or reversed in an appropriate proceeding instituted for the purpose it had all the qualities and effect of a judgment entered on a verdict after a trial: Braddee v. Brownfield, 4 Watts, 474; Montague v. McDowell, 99 Pa. 265. It is wholly immaterial that the judgment was entered in common pleas No. 5 and not in common pleas No. 2 where the ejectment suit was being tried. It was as conclusive on Gould in the latter court as in the court in which it was entered — it was not the subject of collateral attack in either court.

The judgment of Randal against Bell being valid and subsisting and ripe for execution, the plaintiff had the right to enforce payment by execution process. This he did, and it resulted in the sale by the sheriff of the defendant’s real estate which the plaintiff in the writ purchased and for which he brought the ejectment. To sustain his title he was compelled to rely on the regularity and legality of the proceedings on his judgment which, therefore, became an issue in that action and was finally and conclusively adjudicated by the judgment of this court entered in that case.

Randal’s judgment against Mrs. Bell was entered on May 8, 1902, and laches now prevent her administrator from attacking its validity. After the lapse of so many years and the collection of the judgment by execution process, it is too late to invoke the equitable powers- of the court to open or strike it off and thereby invalidate the title to real estate depending on its validity.

The bill in equity to open the judgment and set aside the proceedings thereon, subsequently prosecuted to a final decree, was pending at the time the same relief on the same facts was asked by a petition presented to the law side of the court. The plaintiff could not maintain both proceedings at the same time and, therefore, the court did not err in refusing the petition: Freeman v. Lafferty, 207 Pa. 32; Mellerio v. Freeman, 211 Pa. 202.

The order refusing the petition to open the judgment is affirmed, as is also the decree dismissing the bill in equity.


author: Mr. Justice Brown,

text:
    King et al. v. Ambrose, Appellant.

      Partition — Jurisdiction—Real estate located in several counties— Erroneous finding of jurisdictional facts — Evidence to overcome responsive answer.

    1. Under the provisions of the Act of February 20, 1854, P. L. 89, relating to proceedings in partition, “that when such a proceeding is intended to embrace lands in more than one county, it shall be brought only in the county .... where the larger part of the decedent’s' estate in value shall be situated,” the court of one county has no jurisdiction of a bill of partition of real estate situated in part in the county where the court’s finding that at the time the petition was filed the larger part of the lands, both in quantity and value was situated within its county was not only not supported by the measure of proof required in equity practice to overcome a sworn responsive answer to the jurisdictional averments of the bill, but was clearly erroneous in view of the documentary evidence in the case, by which it appears that 2,018 acres, valued at $8,050 were situated in another county, and only 1,417 acres, valued at $7,450, within the county in which the petition was presented.

      Appeals — Equity rule 92 — Statement of errors.

    2. Failure to file in the court below a statement of errors required by equity rule 92 is not necessarily fatal to an appeal, and the filing of such a statement may be allowed nunc pro tunc where the filing will impose no hardship on the other party.
    Argued May 8, 1911.
    Appeal, No. 37, Oct. T., 1911, by Ida Reamer Ambrose for herself, and as committee, etc., from decree of C. P. Somerset Co., Equity Docket, 1907, No. 7, making partition in case of E. Lawrence King and Alexander King, Jr., v. Ida Reamer Ambrose, for herself and as committee of Mary Kerns Reamer.
    Before Fell, C. J., Beown, Mesteezat, Pottee and Moschziskee, JJ.
    Reversed.
    Bill in equity for partition of lands in Somerset and Bedford counties. Before Koosee, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in holding that the court had jurisdiction.

      J. H. Longenecker, with him F. W. Biesecker, for appellant.
    — The court had no jurisdiction: Doyle v. Brunded, 189 Pa. 113; Phillips’ Est., 19 Phila. 148; White’s Est., 3 Pa. Dist. Rep. 42; Eyerman v. Detwiller, 136 Pa. 285.

      Alexander King, for appellee,
    cited: Wistar’s App., 105 Pa. 390; Sanders’s Est., 41 Pa. Superior Ct. 77.
    July 6, 1911:
   Opinion by

Mr. Justice Brown,

Counsel for appellants frankly admit that the failure to file in the court below the statement of errors required by equity rule 92 was due to their oversight, and, as the filing of such statement nunc pro tunc will impose no hardship on the appellees, the motion to so file it made May 8, 1911, is now allowed as of that date, and the motion to quash the appeal is dismissed. The failure to file the statement was not necessarily fatal to the appeal: Barlott v. Forney, 187 Pa. 301.

This bill was for the partition of lands belonging to the estate of Abraham Kerns, situated in Bedford and Somerset counties. He died many years ago, and at the time of his death his domicile was in Bedford county, where the larger part of his estate in value was situated. The bill was filed in the county of Somerset on May 9, 1907, under an averment in it that at that time the larger part of the estate of the deceased in value was situated in that county. This averment in the bill was specifically denied in the answer, and the defendants affirmatively averred that at that time by far the greater part of the estate, in quantity and value, was situated in Bedford county. This responsive answer to the jurisdictional averment in the bill was not overcome by the measure of proof required in equity practice, but the court below nevertheless found that of the lands of the decedent remaining unsold and described in the bill, the larger part, both in quantity and value, was situated in Somerset county.

The requirement of the Act of February 20, 1854, P. L. 89, relating to proceedings in partition, is that when such a proceeding is intended to embrace lands in more than one county, it shall be brought only in the county where the decedent whose land is to be divided had his domicile, or where the homestead or larger part of his estate in value shall be situated. Whether the court below would have had jurisdiction if, as a matter of fact, the larger part of the estate of the decedent in value was situated in Somerset county at the time the bill was filed, without regard to where the larger part of it in value was situated at the time of his death, is a question that we need not now determine, for the finding of the court below, that at the time the bill was filed the larger part of the lands, both in quantity and value, was situated in Somerset county was not only not supported by the necessary proof, but was clearly erroneous, in view of the documentary evidence in the case. To the report of the master making partition there is attached a draft, the accuracy of which was not questioned before us by the appellees. According to it only one tract — the John Check tract, containing acres — is situated wholly in Somerset county. Of the remaining nine, two, containing 800yi acres, are almost entirely in Somerset county. These three tracts were valued by the master at $6,700. Five of the tracts (including the Snake Spring Township tract, which is not on the draft), containing 1,801J^ acres, and valued by the master at $7,300, are situated in Bed-ford county. The remaining tract, known as the George Smith tract, and containing 433 acres, is located in both counties, about half of the tract being in each. Its total value as fixed by the master was $1,500. It thus appears that 2,018 acres, valued at $8,050, were situated in Bedford county at the time the bill was filed, and only 1,417 acres, valued at $7,450, in Somerset county. Neither at the time of the death of the decedent nor when the bill was filed was the larger part of his estate, in value, situated in Somerset county, and its court of common pleas had, therefore, no jurisdiction of the bill filed.

The first assignment of error is sustained, the decree is reversed and the bill dismissed at appellees’ cost.


text:
    Higinbotham v. Pauch, Appellant.

      Ejectment — Deed—Fraud—Principal and agent — One of two innocent parties — Misstatement of rule — Charge.
    1. In an ejectment suit in which the plaintiff claims under a deed alleged to have been signed by the defendant, which the latter denies, the court is not warranted in applying in its charge the rule that when one of two equally innocent parties must suffer by reason of the fraud of another, the loss should fall upon the one whose negligent act or omission has enabled the wrongdoer to commit the fraud, where the evidence shows that if fraud was committed, the only parties to it were the defendant’s brother, with whom she had left her deed for the sole purpose of enabling him to collect the rents for her, and a woman who represented herself as the defendant, there being no evidence of any agency and no act or omission on the defendant’s part enabling the brother to deceive the plaintiff.
    2. For the court in such a case to say that if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame and it was for the jury to determine which of the parties to the action was least to blame and to find the verdict accordingly, is to state the above rule inaccurately.

      Principal and agent — Deed—Collection of rents — Implied agency.

    3. No agency can be implied in a brother to make sale of his sister’s real estate from the fact that the brother had in his possession the deed and had collected the rents from the real estate.
    Argued May 8, 1911.
    Appeal, No. 198, Jan. T., 1910, by defendant, from judgment of C. P. Fayette Co., Sept. Term, 1909, No. 405, on verdict for plaintiff in case of J. C. Higinbotham v. Anna Pauch.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Ejectment for land in South Brownsville borough. Before Umbel, P. J.
    The facts are stated in the opinion of the .Supreme Court.
    The court charged the jury in part as follows:
    [In this case, as in other cases occasionally, it is possible that somebody may have to suffer and lose some money, it sometimes happens that two persons who are innocent have to suffer or one or the other of those two. The rule of law is that, if two innocent persons must suffer the one who is least to blame is the one that must suffer least. In this case, if you should find that there has been imposition and fraud practiced by some one and that neither the plaintiff, Mr. Higinbotham, nor the defendant, Mrs. Pauch, was to blame, the burden is on you to determine which of them is the least to blame and you should find your verdict accordingly; that is, if they are both innocent and one or the other of them has to suffer. If this comes to be a consideration with you, it is your duty to take into account their respective positions, places of residence and opportunities for acquainting themselves with the facts and what was being actually done and by whom. If the contention of Mrs. Pauch is correct, that she was in or near Chicago and knew absolutely nothing of what was going on in South Brownsville, she could not be held responsible for anything that might have happened in South Brownsville, and having no opportunity to protect her interests no blame could be imputed to her. If, however, you should find that Mr. Frank Pauch was acting as the agent of Mrs. Anna Pauch and was looking after and attending to her affairs and betrayed the trust that she had reposed in him to the extent of presuming to act for her and impo'sed on Mr. Higinbotham, then there would be no blame attached to Mr. Higinbotham, if he used such care and caution as a reasonably prudent man would have used under the circumstances; if that comes to be a consideration with you, it will be your duty to determine which is the least to blame and the one who is the least to blame would be the one who should suffer least.] [1]
    [In this case, as in a great many other cases, there are conflicts in the testimony, and where there are conflicts in the testimony it is the duty of the jury to reconcile them if they will admit of reconciliation; if they cannot be reconciled, and there are some conflicts in this testimony that cannot be reconciled, then the burden is cast upon the jury of determining who is testifying correctly or incorrectly — of who is mistaken and who is not mistaken. In this case either Mr. Brashear or Mr. Smith is mistaken; they cannot both be correct in their testimony as to the identification of this defendant, and where this condition prevails it is the duty of the jury to determine which of them is correct and which of them is mistaken; or which of them is testifying correctly and which is testifying incorrectly or falsely; or if you should be satisfied that one or the other of them is testifying falsely it is your duty to determine which you think it is, and it is not only your right and your privilege but your duty to take into account the manner of the witnesses on the stand, any prejudice, malice, bias or ill will that they or any of them may manifest in the giving of their testimony, any interest that they or any of them may have in the result of your verdict; also any corroboration that there may be of either of the witnesses whose testimony is being considered by other evidence with the truth of which you are satisfied. In short, it is the duty of the jury to take into consideration any and everything that will aid or assist you in determining which is testifying correctly and which incorrectly. . . .
    Where there is such a conflict in the testimony as there is in this case another consideration is the preponderance of credible testimony. Credible testimony, or the preponderance of credible testimony is not always established by numbers. There might be a dozen people who testified to a condition on one side and if the jury were satisfied that none of them was worthy of belief or that they were not credible witnesses their testimony might be overcome by one man whom you might be absolutely satisfied was credible on the other side. This- being a civil action, where there are questions of fact to be determined, and as we have indicated there is one important and prime question of fact for determination in this case, that is, -whether or not Mrs. Anna Pauch signed this deed on December 18, 1905 — if you- find the preponderanee of credible testimony to the effect that she did not sign it you will return a verdict generally for the defendant, and if on the other hand you find the preponderance of credible testimony is on the side of the plaintiff and you find that the defendant did sign and acknowledge this deed on December 18, 1905, you should return a verdict for the plaintiff for the premises described in the writ, together with six and a fourth cents damages.] [2]

      Errors assigned were (1, 2) portion of charge as above, quoting them.

      W. J. Sturgis, with him E. H. Reppert and S. J. Morrow, for appellant.
    The court’s statement of the rule of law is not correct and there was nothing in the pleadings or evidence to warrant an application of the rule to the facts: Jeffers v. Gill, 91 Pa. 290; Dowd v. Crow, 205 Pa., 214; Vanderslice v. Insurance Co., 13 Pa. Superior Ct. 455; Penna. Co. for Ins. on Lives & Granting Annuities v. Franklin Fire Ins. Co., 181 Pa. 40; Dollar Sav. Fund & Trust Co. v. Glass Co., 213 Pa. 307; Henry Christian Building & Loan Association v. Walton, 181 Pa. 201; Edwards v. Meyers, 227 Pa. 584.

      D. W. McDonald, with him Frank P. Cottom, Harry A. Cottom, and James R. Cray, for appellees.
    July 6, 1911:
   Opinion by

Mr. Chief Justice Fell,

This was an action of ejectment in which the plaintiff claimed title by virtue of a deed alleged to have been signed by the defendant. The defendant denied that she had signed the deed and the clearly defined issue was whether it was a forgery. She was a single woman whose residence was in Chicago. She purchased the property in question in 1903, and her deed for the same was duly recorded and left with her brother in Pennsylvania and he acted as her agent in collecting the rents and in looking after the property. In 1907 the plaintiff negotiated with the defendant’s brother for the purchase of the property and at the settlement a deed was signed and acknowledged by a woman who was represented to be the defendant. At the same time the woman executed a writing directing the payment of the purchase money to the defendant’s brother. At the signing and acknowledgment of the deed four persons were present, the defendant’s brother, who died before the trial, the woman who executed the deed and the two subscribing witnesses, one of whom was the notary who took the acknowledgment. One of the subscribing witnesses testified at the trial that the defendant was the woman who signed, the other testified with equal positiveness that she was not. Corroborating circumstances were shown on both sides and it was evident that if a fraud had been committed, at the execution of the deed, the only parties to it were the defendant’s brother and the woman who signed the deed.

It was said in the charge, that if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame and that it was for the jury to determine which of the parties to the action was least to blame and to find a verdict accordingly. This was an inaccurate statement of the rule that where one of two equally innocent parties must suffer loss by reason of the fraud of another, the loss should fall upon him whose negligent act or omission has enabled the wrongdoer to commit the fraud and it was a misapplication of the rule to the facts of the case. This was not a case of agency. There was not a pretense even that the defendant had authorized her brother to sell the property and none could be implied from the fact that he held the deed and collected the rents. No act or omission on her part enabled him to deceive the plaintiff.

The first assignment of error is sustained and the judgment is reversed with a new venire.