text:
    Commonwealth, Appellant, v. Vetterlein.

      Taxation — Mercantile taxes — Manufacturers—Stores and warehouses — Acts of April 22, 1846, P. L. 486, February 27, 1868, P. L. 43, and May 2, 1899, P. L. 184.
    In a suit against a manufacturer of cigars and smoking tobacco, it appeared that tbe defendant had a six-story building in Philadelphia, the cellar of which was used for preparing tobacco, the front of the first floor for the office, and the rear for stamping and shipping, and the second story for stock. The third and fourth were used by the cigarmakers, and the fifth by the strippers, and the sixth by the packers. He had no counters or show cases for the display of goods. The sales made directly to customers who came to the factory were comparatively few. The rest were made upon orders mailed to the Philadelphia office by his customers, or by his traveling salesmen. He also had a cigar factory at Souderton, Montgomery' county, to which he sent from his Philadelphia factory all the leaf tobacco that it used. He made no sales there except occasionally a box of cigars to a neighbor. The books of the entire business were kept at the Philadelphia factory, and all mail orders were received and the filling of them was directed from there. Some of the cigars manufactured at Souderton were sent from there direct to his customer upon the orders received by him at the Philadelphia place of business. The rest were brought to the Philadelphia factory, and were mingled and sold with the cigars made at that factory. The defendants sold no cigars or smoking tobacco, and carried on no business at either of these places, except as stated. Held, that the maintenance of a place in the Philadelphia factory for the purpose of selling the goods manufactured there as well as those of the same kind manufactured at the Souderton factory exclusively, and carrying on the business in the manner prescribed, was such compliance with the provisions of the act of 1846 as exempted the defendant from liability under the act to a mercantile license tax upon the sales made at that place.
    Argued Jan. 10, 1906.
    Appeal, No. 327, Jan. T., 1905, by plaintiff, from judgment of Superior Court, Oct. T., 1904, No. 147, affirming judgment of C. P. No. 4, Phila. Co., March Term, 1903, No. 4542, for defendant non obstante veredicto in case of Commonwealth v. Joseph S. Vetterlein, trading as Vetterlein Brothers.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from Superior Court.
    Rice, P. J., filed the following opinion:
    The defendant is a manufacturer of cigars and smoking tobacco, which business he carries on in this way : He has a six-story building in Philadelphia, the cellar of which is used for preparing tobacco, the front of the first floor for the office, and the rear for stamping and shipping, and the second floor for stock; the-third and fourth are used by the cigarmakers, the fifth is used by the strippers, and the sixth by the packers. He has no counters or show cases for the display of goods. The sales made directly to customers who come to the factory are comparatively few. The rest are made upon orders mailed to this Philadelphia office by his customers, or by his traveling salesmen. He also has a cigar factory at Souderton, Montgomery county, to which he sends from his Philadelphia factory all the leaf tobacco that is used. As to the sales made there his undisputed testimony is : “We do no selling up there. There may be a box of cigars you sell to a neighbor, but they have no books at Souderton at all.” The books of the entire business are kept at the Philadelphia factory, and all mail orders are received there, and the filling of them is directed from there. Some of the cigars manufactured at Souderton are sent from there direct to his customers upon the orders received by him at the Philadelphia place of business, the rest are brought to the Philadelphia factory and are mingled and sold with the cigars made at that factory. The defendant sells no cigars or smoking tobacco and carries on no business at either of these places, except as above stated.
    The commonwealth’s counsel base their contention that the defendant is liable for the mercantile license tax assessed by the board of mercantile appraisers of Philadelphia, upon the proposition that the provisions of the eleventh section of the Act of April 22, 1846, P. L. 486, and the Act of February 27, 1868, P. L. 43, are still in force, and are to be applied in connection with the provisions of the Act of May 2, 1899, P. L. 184. They do not claim that he is liable if he belongs to the manufacturers described in the proviso of the eleventh section of the act of 1846 ; they do claim that he does not belong to that class of manufacturers because he has a store and warehouse apart from his Souderton factory for the sale of the goods manufactured at that factory.
    The defendant’s counsel contends, first, that his client belongs to the class of manufacturers above referred to; second, that since the passage of the act of 1899 a manufacturer is not liable to. the tax, even though he has a store apart from his factory for the purpose of vending his own manufactures.
    Does the defendant belong to the class of manufacturers above referred to? If that question be answered in the affirmative, the defendant’s second proposition need not be discussed. The eleventh section of the act of 1846 treats of two general classes of persons, and declares that they shall be classified in the same manner and required to pay the same annual tax and license fee as was provided and required in relation to dealers in foreign merchandise. These two classes are, first, “ All dealers in goods, wares and merchandise, the growth, product and manufacture of the United States ; ” second, “ Every person who shall keep a store or warehouse for the purpose of vending and disposing of goods, wares and merchandise, where snch person is concerned or interested in the manufacture of such goods, wares and merchandise.” “ A dealer,” says Mr. Justice Black, “ in the popular and therefore in the statutory sense of the word, is not one who buys to keep, or makes to sell, but one who buys to sell again. He stands intermediately between the producer and the customer, and depends for his profit, not upon the labor he bestows upon his commodities, but upon the skill and foresight with which he watches the markets: ” Norris Brothers v. Commonwealth, 27 Pa. 494. “ Dealers are the middlemen between the manufacturer or producer and the consumer: ” Lowbie, C. J., in Commonwealth v. Campbell, 83 Pa. 380. See also Commonwealth v. Gormly, 173 Pa. 586 ; Commonwealth v. Robb, 14 Pa. Superior Ct. 597.
    Under all the cases, excepting perhaps Berks County v. Bertolet, 13 Pa. 522, a person doing business in the manner pursued by the defendant in this case is not a “ dealer ” within the meaning of the act of 1846. But if the act had stopped there, there would have been room for' argument that the building in which the sales were made was both a manufactory and a store or warehouse, and therefore such person would have been taxable as though he were a dealer. . But a manufacturer must sell his wares, and to tax him as though he were a dealer on all his sales, no matter where made, would have been in effect to subject the business of manufacturing to a mercantile license tax, which would have been contrary to the legislative policy relative to manufacturers as exhibited by all the mercantile license acts passed prior to 1846.
    That' the legislature intended to adhere to this policy is shown by the proviso, which reads as follows : “ Provided, that mechanics who keep a store or warehouse at their own shop or manufactory, for the purpose of vending their own manufactures exclusively, shall not be required to take out any license.” This is precisely what the defendant does, if we assume that the second story and the office of his building are a store or warehouse within the meaning of the act. True, this store or warehouse is not kept at the place where all of the cigars are manufactured, but the words of the act do not require that it shall be. It is in his factory, a building used in connection with the Souderton building for the purpose of his manufacturing business, and the articles manufactured in both places are of the same kind. We do not say that the buildings constitute but one factory. This is not .the point to which this discussion tends, nor is it the point that must be established in order to sustain the judgment under review. The point is that no absurd result will be reached, and that no apparent purpose of the legislature will be defeated, if we give to the words of the statute their ordinary meaning. In order to adopt the construction contended for by the commonwealth’s counsel we must assume that the legislature meant by the words “ their own manufactures ” their goods manufactured at the shop or manufactory where the store or warehouse is kept. But this is not ivhat the legislature said. And having regard to the manifest purpose to permit manufacturers to sell their own manufactures under reasonable restrictions, without being liable to the mercantile license tax, the reasonable and natural supposition is that had they intended to make the restriction as broad as the commonwealth’s counsel claim, they would have said so in unmistakable terms. It is argued that if the construction contended for is not adopted, a person having a store or warehouse apart from his main factory could always evade the tax by doing a certain amount of manufacturing there. This argument, from the consequences that might ensue, is' opposed by an argument of the same nature that inequality would result if a manufacturer carrying on his business as the defendant does would be liable to the tax, and one carrying on a business of precisely the same kind and volume, but keeping a store or warehouse at each place for the sale of goods there manufactured, would not be. But we are not prepared to concede that the statute could be so easily evaded in the manner above suggested if the construction contended for is not adopted. We do not decide what the result would be if the manufacturing done at the Philadelphia factory were so small as to justify the conclusion that it is a mere subterfuge, for this is not that kind of a case. When such a case arises it will be proper to consider whether the place at which the goods are sold is in reality a manufactory within the true intent and meaning of the act. Seeing no adequate reason which may be considered in the construction of the statute for departing from the ordinary meaning of - the words used by the legislature in this act, we hold that the maintenance of a place in the Philadelphia factory for the purpose of selling the goods manufactured there, as well as those of the same kind manufactured at the Souderton factory exclusively, and carrying on the business in the manner described at the outset of this opinion, was such compliance with the provisions of the act of 1846 as exempted the defendant from liability under that act to a mercantile license tax upon the sales made at that place.
    The act of 1868 declared the true intent and meaning of the eleventh section of the act of 1846 to be “ That a manufacturer or mechanic not having a store or warehouse apart from his manufactory or workshop for the purpose of vending goods .... shall not be classified or required to pay the annual tax and license as is now required in relation to foreign dealers.” It is quite evident that this act was not intended to be a complete substitute for the eleventh section of the act of 1846, nor is it apparent that it was intended as a complete substitute for the proviso. Certainly no such intent is expressed, and it is not necessary to imply it in order to give full effect to the words. They do not expressly impose a liability for a tax upon anyone. They relate to exemption from liability, and theif requirements would be satisfied by holding that they enlarge the class intended to be covered by the proviso so as to include a manufacturer who has no store or warehouse, either apart from or at his manufactory for the purpose of selling his manufactures, but who sells them elsewhere in the manner described in Berks County v. Bertolet, or some similar manner. Under that decision such manufacturers would not be exempt, and while the decision was criticised in Norris Brothers v. Commonwealth, and was directly overruled in Commonwealth v. .Campbell, decided in 1869, -yet in view of one or two later common pleas decisions, one as late as 186*2, and the language of the proviso, there was occasion for legislation to remove the doubt whether the case of such manufacturer was within 'the proviso construed according to its true intent and meaning. This we conceive was the purpose, at least one of the purposes, which the legislature had in view ; we discover no clear intent to make anyone liable to the tax who would not have been liable if the act had not been passed.
    In view of the conclusions we have reached relative to the acts of 1846 and 1868, it will be unnecessary, as already stated, to discuss the question involved in the second proposition of defendant’s counsel. We are not to be understood as conceding the proposition.
    Judgment affirmed.
    Beaver, Porter and Morrison, JJ., dissenting. (No dissenting opinion filed.)

      Error assigned was the judgment of the Superior Court.

      Ira Jewell Williams, with him EranJclin L. Lyle and Rampton L. Carson, attorney general, for appellant.

      Rudolph M. Schick, for appellee.
    January 29, 1906:
   Per Curiam,

The judgment is affirmed on the opinion of the learned president judge of the Superior Court.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Zeilmann, Appellant, v. McCullough.

      Negligence — Master and servant — Driver of wagon — Log truck.

    In an action by a driver of wagon against his employer to recover damages for personal injuries sustained while the plaintiff was driving a log truck on which were loaded iron columns, a nonsuit is properly entered where it appears that the plaintiff was an experienced driver, had driven the log truck three or four times before, and that whatever danger there was in its use, was as apparent to him as to his employer.
    Argued Jan. 9, 1906.
    Appeal, No. 265, Jan. T., 1905, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1903, No. 4364, refusing to take off nonsuit in case of John Gr. Zeilmann v. John McCullough.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McMichael, J.

      At the trial it appeared that on April 22, 1903, plaintiff was engaged in hauling iron columns on a log truck. He was an experienced driver and had driven the log truck three or four times before. He claimed that a pin on the rear end of the log truck came out, that the columns were thrown to the ground, and that he was knocked from his position and injured. The evidence tended to show that the plaintiff knew as much of the condition of the truck as the defendant did.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Henry Birok, for appellant.

      Francis Shunk Brown, with him Alex. Simpson, Jr., and B. W. Archbald, Jr., for appellee.
    February 12, 1906:
   Per Curiam,

The plaintiff was a driver of some years’ experience, and had driven this particular log truck, according to his own testimony, “ three times, anyhow — three or four times before I met with this accident. ... I only took one six-ton column that morning. . . . How many days before that time ? Well, it was about two days, anyhow.”

Whatever of danger there was in such use of the truck was as apparent to plaintiff as to anyone else, and he took the risk.

Judgment affirmed.


text:
    Righter v. Livingston, Appellant.

      Mortgage — Husband and wife — Principal and surety.

    Under the law of Pennsylvania a wife has the power to mortgage her separate estate to secure her husband’s debt, and this right has not been taken from her by the Act of June 8, 1893, P. L. 344.
    Argued Jan. 11, 1906.
    Appeal No. 194, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1908, No. 1509, on verdict for plaintiff in case of Jennie E. M. Righter, Administratrix of Washington Righter, deceased, v. John H. Livingston and Pauline Livingston.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $1,890. Defendant appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Thomas R. Elcock, with him Thomas Diehl, for appellant.

      Rudolph M. Schick, with him E. D. North, for appellee.
    February 12, 1906:
   Per Curiam,

On the face of the mortgage it was for the payment of money. There was no sufficient evidence of fraud in its procurement to require the submission of that point to the jury.

On the main contention that this mortgage was a mere security for the husband’s debt or undertaking the law is conclusively settled against the appellant. A wife under the law of this state had the power to mortgage her separate estate to secure her husband’s debt, and the act of 1893 has not taken it away: Kuhn v. Ogilvie, 178 Pa. 303; Herr v. Reinoehl, 209 Pa. 483.

Judgment affirmed.


author: Mr. Chief Justice Mitchell,

text:
    Bordentown Banking Company v. Restein, Appellant.

      Practice, C. P. — Pleading—Statement of claim — Suggestion of insufficiency —Affidavit of defense.

    Judgment for want of an affidavit of defense, or of a sufficient affidavit of defense is a judgment for default, and if there is no default at the time it is entered it is irregular and void, even though it might have been regularly entered earlier while the default existed.
    Where a statement of claim is insufficient, it is proper practice to file of record a suggestion to that effect. Such a suggestion of insufficiency is in the nature of a demurrer, and if it is overruled, the court may in its discretion either enter judgment for want of an affidavit of defense, or permit the defendant to file an affidavit of defense.
    An affidavit of defense may be filed as a matter of right at any time before judgment. No leave of the court is necessary. The Procedure Act of May 25, 1887, P. L. 271, made no change in the practice in this respect. The penalty provided by the act of 1887, for neglect of the defendant to file an affidavit of defense is the risk of having a judgment entered against him, not the termination of his right to file his affidavit.
    If the affidavit is filed after the expiration of the statutory period of fifteen days, the affidavit stands in the way of judgment for the plaintiff if the latter did not move for judgment, before the affidavit was filed.
    It is the practice of the courts to consider the question of fractions of a day so far as to inquire into the actual priority of an affidavit of defense filed and a judgment for default entered on the same day.
    A rule of court providing that “The court or any judge thereof may enlarge the time to declare or plead on cause shown but not to file an affidavit of defense,” has no applicability to a case where an affidavit of defense has been filed after the expiration of the statutory period. The rule gives the court no authority to enter judgment for plaintiff after the affidavit of defense is filed.
    Argued Jan. 11, 1906.
    Appeal, No. 207, Jan. T., 1905, by-defendant, from order of C. P. No. 1, Phila. Co., March T., 1905, No. 4127, making absolute rule for judgment for want of an affidavit of defense in case of Bordentown Banking Company v. Rebecca Restein, trading as E. P. & L. Restein Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule for judgment for want of an affidavit of defense.
    From the record it appeared that the suit was on a promissory note. On May 31,1905, the following paper was filed of record:
    “ SUGGESTION OE DEFENSE.
    “ John Sparhawk, Jr., suggests to the court that the statement of plaintiff’s claim filed in above case is insufficient to entitle plaintiff to judgment for want of an affidavit of defense.
    “ John Spabhawk, Jb.,
    “ Attorney for defendant.”
    On June 1, 1905, the plaintiff took a rule for judgment for want of an affidavit of defense. On June 5, 1905, the defendant asked permission of the court to file an affidavit of defense. This was refused, and the rule for judgment was made absolute.

      JError assigned was the order of the court.

      Alex. Simpson, Jr., of Simpson & Brown, for appellant.
    The court below refused to allow defendant to file the affidavit of defense upon the merits, which she had there for that purpose, because of opinion that defendant had no right to do so, and they had no right to allow it after the fifteen days allowed by rule had expired. This was clear error.
    A supplemental affidavit of defense may be filed as a matter of right, without obtaining leave of court, at any time before judgment is actually entered: West v. Simmons, 2 Wharton, 261; Bloomer v. Reed, 22 Pa. 51; Mitchell on Motions and Rules, 70.

      Henry Wolf Biklé, with him John H. Hutchinson, for appellee.
    The rules of court of the courts of common pleas of Philadelphia county prohibit the enlargement of time to file an affidavit of defense: Dubosq v. Guardians of the Poor, 1 Binney, 415; Peck’s App., 11 W. N. C. 31; Brennan v. Prudential Ins. Co., 148 Pa. 199.
    In the absence of a rule of court it would lie within the lower court’s discretion to grant or refuse defendant permission to file an affidavit after the time allowed by statute. The exercise of such discretion would not be reviewable by the appellate court except in case of manifest abuse: Fleisher v. Blackburn, 15 Pa. Superior Ct. 289; Fowler’s License, 2 Pa. Superior Ct. 63; Hopkins v. Com., 50 Pa. 9; Strouse v. Bard, 8 Pa. Superior Ct. 48.
    February 12, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

The appellant by her attorney filed of record a suggestion that the statement of claim was insufficient to entitle plaintiff to judgment for want of an affidavit of defense. This' was in accordance with established practice: Sylvester v. Thompson, 11 W. N. C. 208; Endlich on Affidavits of Defense, sec. 655. The'practice has not been changed by the act of 1887, though it will probably be of much less frequent occurrence in future, since the affidavit is now required to meet the statement of claim instead of the mere copy of the instrument sued on as formerly.

The suggestion of insufficiency is in the nature of a demurrer to the copy of the instrument sued on, or now to the statement of the cause of action and puts the plaintiff to a rule for judgment. On this rule if the suggestion of insufficiency is not sustained the court may enter judgment for want of an affidavit of defense, but unless the suggestion is manifestly frivolous or intended merely for delay, the usual practice has been to allow an opportunity for filing an affidavit if counsel state that they are instructed that á good defense exists. This, however, is entirely within the discretion of the court.

In the present case, upon the calling of the rule and before judgment was entered, the defendant’s counsel presented an affidavit of defense and asked leave to file it. Leave was refused and judgment entered. This was error. No leave was necessary, as the defendant could have filed the affidavit of right at any time before judgment. This was established in regard to a supplemental affidavit as long ago as 1836 in West v. Simmons, 2 Whart. 261, and has been uniformly followed in practice ever since. It was so held in Bloomer v. Reed, 22 Pa. 51, though the rule for judgment had been argued, this court saying, “ whenever a sufficient affidavit of defense is offered before a judgment has actually been entered, it is the duty of the court to receive the affidavit and permit the cause to go to trial in the ordinary manner.” And see Callen v. Lukens, 7 W. N. C. 28, upon the right of the defendant to set forth even a new defense by supplemental affidavit.

The Procedure Act of May 25, 1887, P. L. 271, has made no change in the practice. Its provisions in this respect are permissive not mandatory. By sec. 5 judgment for want of an affidavit of defense, etc., “ may be moved for .... in accordance with the present practice in actions of debt and assumpsit,” and by sec. 6 unless the defendant file á sufficient affidavit of defense within fifteen days after notice of the filing of the statement, the plaintiff “may move for judgment for want thereof.” It is true that in section 4 it is enacted that if the statement is served not less than fifteen days before the return da3 “it shall be the duty” of the defendant to file an affidavit, etc., words which general^ receive a mandatory construction. But the section must be read in its connection with those which follow and with the nature of the duty prescribed. These make it clear that the penalty for such neglect of duty by defendant is the risk of having a judgment entered against him, not the termination of his right to file his affidavit. The plaintiff “ may ” move for judgment, but he is under no obligation to do so, and if he does not no judgment is entered. And he may by his action, as by ruling defendant to plead, etc., waive his right: O’Neal v. Rupp, 22 Pa. 395; Superior Nat. Bank v. Stadelman, 153 Pa. 634. The judgment .for want of an affidavit, or of a sufficient affidavit of defense, is a judgment for default, and if there is no default at the time it is entered it is irregular and void, even though it might have been regularly entered earlier while the default existed: Gillespie v. Smith, 13 Pa. 65. In Barndollar v. Fogarty, 203 Pa. 617 (621), Mr. Justice Brown, in discussing asimilar point under the Foreign Attachment Act of 1897, said: “ Under the Procedure Act of May 25,1887, a defendant is required to file his affidavit of defense within fifteen days after the plaintiff’s statement has been served. But it has never been pretended that if a defendant after expiration of the period within which he ought to have filed his affidavit does file one, judgment can then on motion be taken against him for want of it. The penalty expressly provided by that act for the default of the defendant in filing his affidavit of defense is judgment against him if moved for by the plaintiff ; but it has never been questioned, and cannot be that an affidavit of defense filed' after the expiration of the statutory period, stands in the way of judgment for the plaintiff if he did not move for it before the same was filed.” So strictly has this been held that even where the rule of court provided that the plaintiff should be entitled to judgment on a certain day unless an affidavit of defense should be filed before judgment should be asked for, it was nevertheless held that the affidavit was in time if filed on that day although after judgment had been asked for and entered: Duncan v. Bell, 28 Pa. 516. This, however, has not been the general practice under which the courts have usually considered the question of fractions of a day, so far as to inquire into the actual priority of the filing of the affidavit and the entry of the judgment.

The rule of court cited by appellee has no applicability to the case. The provision that “ the court or any judge thereof may enlarge the time to declare or plead, on cause shown, but not to file an affidavit of defense ” is a regulation of the power of the court to govern the administration of its own rules as to the time of pleading, etc., an inherent power it would have.without any rule on the subject, but for the avoidance of misunderstanding an express and very proper exception is made as to affidavits of defense where the time does not depend on the rules of the court but is fixed by statute. At the expiration of the fifteenth day the plaintiff has a right to judgment unless the defendant has in the meanwhile filed his affidavit of defense. An enlargement of the defendant’s time by the court or a judge would therefore be an attempt to curtail the plaintiff’s statutory right. The present case is entirely different. The defendant presented an affidavit of defense before judgment was entered. Her counsel made the mistake of asking leave to file it, but as it was his client’s right to file it without leave, the latter’s rights should not be lost by her attorney’s deference to the assumed control of the court. Had he asked for time in which to prepare an affidavit the indulgence would have been within the discretion of the court. But the affidavit being offered must be treated as having been filed before the entry of the judgment, and the latter is, therefore, unauthorized and a nullity.

Whether the affidavit considered as filed in time is sufficient is a question not now before us, but which the court below may deal with when it comes regularly before them.

There is nothing herein that conflicts with Fleisher v. Blackburn, 15 Pa. Superior Ct. 289. The facts on this point do not appear in the report, but an examination of the paper-books shows that there was no question in the case as to the right to file a supplemental affidavit of defense, nor even a request for time to do so. On the appeal the sufficiency of an averment of set-off made in the affidavit, which had been treated as a subordinate matter in the court below, became the main question, and appellant’s counsel argued that an'intimation of the insufficiency of the pleading should have been given by the court below ‘‘ whereby the defendant would have been invited to a supplemental affidavit.” The language of the learned president of the Superior Court was used in reference to this argument and was in entire harmony with what has been said herein.

Judgment reversed and procedendo awarded.


text:
    West’s Estate.

      Will — Legal and equitable estates — Life estate — Rule in Shelley’s case.

    Testator gave to a trust company a sum of money in trust for a nephew and niece “the net income to be paid in equal amounts quarter yearly to said nephew and niece during their lives, and at their deaths the principal to then- respective heirs. In case I survive them, or either of them, then the principal of his or her portion to his or her heirs.” The nephew died after the testator leaving a widow and collateral lcin, but no issue. Held, (1) that the estate in the first taker was equitable, and that to the heirs, was legal; (2) that the two estates did not coalesce, and that the rule in Shelley’s case did not therefore apply; and (3) that as in a gift of personalty heirs are synonomous with the next of kin, the widow of the nephew was entitled to share.
    Argued Jan. 12, 1906.
    Appeal, No. 346, Jan. T., 1905, by Thomas Sweeney, Executor of George W. West, deceased, from decree of O. C. Phila Co., Oct. T., 1902, No. 199, dismissing exceptions to adjudication in Estate of Charles W. West, deceased.
    Before Mitchell, C. J., Fell, Brown,' Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    From the record it appeared that Charles W. West, testatator, left a will by which he gave all of his estate to his executors in trust, inter alia, “to Charles W. West, or his heirs, twenty-five thousand dollars; to Edward G. West, or his heirs, forty thousand dollars; to the Philadelphia Trust, Safe Deposit and Insurance Company, $40,000.00, in trust for George W. West and Rebecca West, children of said Samuel C. West, to be invested by said Company in accordance with the laws of the State of Pennsylvania, the net income to be paid in equal amounts quarter yearly to said George W. West and Rebecca West, during their lives, and at their deaths the principal to their respective heirs, less the legal charges of said Company. In case I survive them or either of them, the said George W. West or Rebecca West, then the principal of his or her portion, to his or her heirs.”
    Penrose, J., filed an adjudication which was in part as follows:
    The present account is of the half so held for George W. West, who, as represented to the court, died May 28, 1905, without children or issue, leaving a wife, Laura Y. West, a sister, Emma W. Brown, and nephews and nieces, children of deceased brothers and sisters, as set forth in the petition for distribution hereto annexed, to whom as his “ heirs,” the share of principal so held with such income as may have accrued since his death, now passes, viz.: one-half to the wife and the other half, per stirpes, to the sister and nephews and nieces, lire authorities on the subject are referred to more fully in the adjudication of the account of the share of Rebecca W. West — the principle being thus stated in Hawkins on Wills, 92: “ Where the subject of the gift is personalty, the word heirs, in a limitation to the heirs of the first taker, either substitutionally or by way of succession, is understood as meaning the persons entitled under the statutes of distribution in case of intestacy.”
    It was contended under the familiar principle which gives to tlie first taker the whole estate, where a life estate to him is followed by a limitation to his heirs, that George W. West was the absolute owner, and that the fund should now be awarded to his executor for the purposes of liis will; but this principle has no application unless the estate to the ancestor and that to the heirs are of the same quality — both legal or both equitable: 4 Kent, 430; and here the gift to the cestui que trust is equitable, with active duties to be performed by the trustee, and that to the heirs is legal: Bacon’s Appeal, 57 Pa. 504; Dunn’s Appeal, 85 Pa. 94; Little v. Wilcox, 119 Pa. 439, etc. The subject is one which has come before this court in-numerous cases, among which are: Boyd’s Estate, 199 Pa. 487, and Bouvier’s Estate, 12 Pa. Dist. Rep. 149, and what is there said need not now be repeated. The claim of the executor of George W. West is, therefore, disallowed.
    On exceptions to adjudication Ashman, J., filed the following opinion:
    The testamentary trust of $40,000 was in these words: “ In trust for George W. West and Rebecca West, to be invested in accordance with the laws of the State of Pennsylvania, the net income to be paid in equal amounts quarter yearly to said George W. West and Rebecca West, during their lives, and at their deaths the principal to their respective heirs. In case I survive them or either of them, then the principal of his or her portion to his or her heirs.” George W. West afterwards died, leaving a widow, and a sister, and nephew and nieces, but no issue. The auditing judge held that the estate in the first taker was equitable, and that to the heirs was legal; that the two estates did not coalesce, and that the rule in Shelley’s case therefore did not apply. He decided further that in a gift of personalty, heirs in Pennsylvania are synonymous with the next of kin, and that the widow was entitled to share.
    We think that upon principle and the authorities, many of which he referred to, the auditing judge was right in his conclusions. The trust for the first taker was definite and ended with his life; and the words immediately following, “ the principal to his heirs,” imported a direct gift to the heirs as purchasers, precisely as in the next clause, where the testator provides “ in case I survive, then the principal of his portion to his heirs.” The words of direct gift are in both instances manifestly implied.
    It was contended at the argument that both estates were equitable; that the will was “ in trust to pay the income to the life tenant, and the trust to pay the principal to the heirs.” But if the words “ to pay ” are inserted in the gift to the heirs, the result will not be varied. The trust for the first taker was active; it was to invest and to pay the net income, duties which, under Bacon’s Appeal, 57 Pa. 504, and many later cases, involve the performance of active duties. The trust to the heirs, assuming that a trust as to them was created, on the contrary was simply to pay, and was a dry trust which was immediately executed, and the heirs took a legal estate.
    The position taken by the auditing judge that no trust existed for the heirs and that they took an absolutely legal estate, we think is the correct solution of the question, and is amply vindicated by the authorities. Among those may be named Rife v. Geyer, 59 Pa. 393, in which an active trust had been created in favor of one for life, and at his death the trustee was directed to hold the estate for the use of the heirs of the life tenant, and it was held that the heirs took a legal remainder in fee. So in Chamberlain v. Maynes, 180 Pa. 39, the trustee was empowered to convey, at the death of the life tenant, the estate to the daughter of the grantor, and it was decided that the daughter could herself convey the legal title without the intervention of the trustee. See also Renziehausen v. Keyser, 48 Pa. 351.
    The exceptions are dismissed.

      Error assigned was the decree of the court.

      J. Howard Morrison, with him John W. Best, for appellant.

      Joseph H. Taulane, with him Ernest E. Prevost, Thomas Abbott MeKennell and White, White Taulane, for appellee.
    February 12, 1906:
   Per Curiam,

The decree is affirmed on the opinion of the court below dismissing exceptions to the adjudication.


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    Burkhart, Appellant, v. North American Company.

      Libel — Evidence—Professional reputation.

    Where at the trial of an action for libel there is no attack of any kind, open or covert, on plaintiff’s reputation, evidence of the plaintiff’s professional reputation is inadmissible.
    Where in an action for libel by a bassoon player against a newspaper, 'it appears that the plaintiff was designated in the article not by his name, but by a general reference to the instrument which he played, it is not error to affirm a point of the defendant to the effect that “if the jury believe that the article published does not designate or identify the plaintiff the verdict would be for the defendant.”
    The truth of the facts published is in general a defense in a civil action for libel, though the benefit of such defense may be lost where the matter described is a private one, with which the defendant or the public has no legitimate concern, or where even if the substance of the matter was proper the manner and style rendered the publication libelous.
    Argued Jan. 15, 1906.
    Appeal, No. 282, Jan. T., 1905, by plaintiff, from judgment of C. P. No. 2, Pbila. Co., March T., 1903, No. 3407, on verdict for defendant in case of Harry L. Burkhart v. The North American Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass for libel. Before Barratt, J.
    The alleged libelous article was as follows:
    “Mrs. Carter Victor in War on Orchestra.
    “ Stubborn Musicians Nearly Prevented Performance of 'Du Barry ’ at the Broad.
    “Discords Enraged Her.
    “Row Behind Scenes Ends in Ejectment of Oboe, Bassoon and Four Brasses.
    “Those persons who were in the audience at the Broad Street Theater last Tuesday night will not know, until they read this, how near they came to being turned, away without seeing the performance of 'Du Barry.’
    “For a full half-hour before the curtain rose there was a. lively time behind the scenes, with David Belasco and Mrs. Carter as the contestants on the one side and representatives of Nixop,&1iZj,npnerman on the other. In the end the BelascoCarter forces were victorious.
    “It was all about the Broad Street Theater Orchestra. When the ‘ Du Barry ’ engagement began that organization was enlarged from eleven to seventeen pieces; Mr. Belasco paying more than half of the additional expense.
    “ Before the first performance there was ended Mrs. Carter complained that the discords of the orchestra had almost set her frantic, and she sent for Arthur Pell, her musical director, and instructed him to ‘ cut out ’ the extra pieces, which consisted of four brasses, an oboe and a bassoon.
    “ But they Only Laughed.
    “ Mr. Pell obedientiy informed the brasses, the oboe and the bassoon to this effect, but to his amazement they discordantly laughed at him, saying that they had been engaged by Mr. Kearney, the leader of the Chestnut Street Theater Orchestra, who employs all musicians for the Nixon & Zimmerman theaters, and that only from him would they take their dismissal.
    “ The matter was then allowed to rest until Mr. Belasco should return from- Atlantic City, Mrs. Carter vowing in the meantime that the frightful noises of those six ‘ extras ’ were rapidly ruining her nervous system.
    “ Mr Belasco arrived last Monday night, listened to a few bars of the overture and fled, with his fingers in his ears. When quiet had been restored he returned and notified the Nixon & Zimmerman representatives that unless the six wind compressors were discharged before the next night there would be no performance of ‘ Du Barry.’
    “ When the next evening arrived and Director Pell took his seat the six were still there, and when he ordered them out they again turned up their noses at him and asked him who he was, anyway ; they didn’t know him; they had been employed by Mr. Kearney, etc.
    “ Then Mr. Belasco and Mrs. Carter took action. They declared with unmistakable emphasis, that the curtain would not rise until the objectional sextette had been evicted, and Mrs. Carter went so far as to produce her street costume, preparatory to leaving the theater.
    “ Called Off by Kearney.
    “ At this interesting point the Nixon & Zimmerman authorities, represented by one Love, who felt anything but his name for the Belasco-Carter interests, called up Kearney over the ’phone and had Kearney call off the objectionable six.
    “ The curtain then arose and the performance proceeded, ‘ with just eleven-seventeenths of the previous amount of discord,’ as one of the company phrased it.
    “ Apropos of the incident it is said, on good authority, that when the Rogers Brothers played at the Chestnut Street Theater they found the orchestra there so little to their lildng that they had it exchanged for that of the Broad Street Theater, but when they got the latter it was so much worse that they asked and obtained the return of the first aggregation.”
    At the trial the court excluded under objection and exception evidence of the plaintiff’s reputation as a musician.
    Defendant presented the following points :
    2. If the jury believe that the article published does not designate or identify the plaintiff, the verdict must be for defendant. Answer : That point I affirm. [5]
    3. If the article is substantially true as published, there can be no verdict for plaintiff. Answer: That point I affirm. [6]
    4. If the article correctly reports the fact of the plaintiff’s discharge, and does not make any reflections or allegations respecting his professional competency, your verdict should be for defendant. Answer : This point I affirm. [7]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions ; (5-7) above instructions, quoting them.

      William H. Burnett, with him Adolph Sehewe,. for appellant.
    Where the skill of a person is one of the questions in issue, evidence can be offered to prove it: 1 Wigmore on Evidence, sec. 87.
    The jury should have been told that the identity of plaintiff could be proved by testimony outside of the article: Clark v. North American Co., 203 Pa. 346.

      There must be a plea of justification to permit evidence of the truth: Porter v. Botkins, 59 Pa. 484; Kay v. Fredrigal, 3 Pa. 221; Updegrove v. Zimmerman, 13 Pa. 619; Smith v. Smith, 39 Pa. 441; Hartranft v. Hesser, 34 Pa. 117.
    A libel on reputation is never justifiable: Hayes v. Press Co., 127 Pa. 642; Wallace v. Jameson, 179 Pa. 98; Wood v. Boyle, 177 Pa. 620; Republican Pub. Co. v. Miner, 20 Pac. Repr. 345; Krug v. Pitass, 76 Am. St. Rep. 317; Moore v. Francis, 18 Am. St. Rep. 810; McAllister v. Detroit Free Press Co., 15 Am. St. Rep. 318.

      James Gay Gordon, for appellee.
    It has long been established in Pennsylvania that in an action for libel the plaintiff cannot introduce evidence of reputation and character in his own behalf until, in some manner at the trial, his reputation is attacked by the defendant, for until then “ the law presumes and the defendant admits that it is good: ” Chubb v. Gsell, 34 Pa. 114; Petrie v. Rose, 5 W. & S. 364; Clark v. North American Co., 203 Pa. 346.
    In every action for libel it is a necessary allegation, and must be proved that the thing complained of was published of and concerning plaintiff. In this case it will be remembered that the plaintiff was nowhere named, and certainly was not referred to personally: Townshend on Libel & Slander, 629.
    The truth is an answer to the action, not because it negatives the charge of malice (for a person may lawfully or maliciously utter slanderous matter, though true, and thereby subject himself to an indictment), but because it shows that the plaintiff is not entitled to recover damages: Odgers on Libel & Slander, 170; Townshend on Libel & Slander, 306; Oles v. Pittsburg Times, 2 Pa. Superior Ct. 130.
    February 12, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

The first four assignments of error are to the rejection by the learned judge at the trial of offers to show the high professional reputation of the plaintiff as a musician. All the cases agree on the general rule that such evidence is not admissible until his reputation has been attacked. In Clark v. North American Co., 203 Pa. 346, this subject was expressly considered and it was held that the attack which would open the rule need not be by direct testimony but might be indirectly through slurs and insinuations in cross-examination, and other ways equally damaging though covert. But in the present case there was no attack of any kind, open or covert, on plaintiff’s reputation at the trial, and no occasion to deviate from the general rule.

The fifth assignment is to the affirmance of the defendant’s point that: “ If the jury believe that the article published does not designate or identify the plaintiff the verdict would be for the defendant. ” It is conceded that the plaintiff was not referred to by name, and if he was indicated at all it was by a general reference to the musical instrument which he played on the occasion described. A party need not be named, if pointed to by description or circumstances tending to identify him : Clark v. North American Co., 203 Pa. 346, and in general it is the better practice for the judge to explain the law in this aspect clearly to the jury. But in the absence of request by plaintiff for specific instructions on this point, the answer of the court in view of the slight evidence looking to identification of the plaintiff could hardly be considered as erroneous, even if it stood alone. But it was part of a charge in which the jury were told that while the plaintiff was not specifically mentioned by name he complains: “ That he is sufficiently identified in it from the fact that, as he was the only person in this orchestra who played an instrument called a bassoon, the article must necessarily refer to him. This is for you. Do you think that it does, or do you think that it does not?” This cannot be said to be inadequate in the condition of the testimony.

The remaining assignments to the affirmance of points that if the article as published was substantially true and if it correctly reported the facts without any reflection on plaintiff’s professional capacity the verdict should be for defendant, do not require extended discussion. The truth of the facts published is in general a defense in a civil action for libel, though the benefit of such defense may be lost where the matter described was a private one with which the defendant or the pub-lie had no legitimate concern, or where, even if the substance of the matter was proper, the manner and style rendered the publication libelous. The appellant has discussed the acts of 1897 and 1901 in reference to justification. But no question of justification arises in the case. It was neither pleaded nor set up by offers of evidence. The defense was that the article did no injury to plaintiff as it did not identify him at all, and even if it had done so it was not libelous. It is at least doubtful if this last claim would not have to be sustained if put to the court in a direct point: Collins v. Dispatch Publishing Co., 152 Pa. 187. The article was apparently not in itself libelous as to plaintiff. To ordinary apprehension the only person subjected to ridicule was Mrs. Carter whose whims were described in a somewhat sensational manner. But she, being of sensational temperament and in a sensational profession, does not seem to have objected to it. Plaintiff being an artist, with the artistic temperament, was perhaps unduly sensitive, but on a fair review of the whole matter we are obliged to agree with the jury that he had no real ground of complaint.

Judgment affirmed.


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    McIlhenney, Appellant, v. Philadelphia.

      Negligence — Municipalities—Streets—Contributory negligence.

    Pedestrians in going from one side of a street to the other are not confined to the regular crossings at the intersections, but may cross at any point according to their convenience. But in so doing they are bound to exercise care according to the circumstances, and especially bound to the alert and watchful performance of the duty of all travelers on all highways to look where they are going.
    In an action by a woman against a city to recover damages for personal injuries sustained by tripping and falling over a curbstone which projected two or three inches above the pavement, plaintiff cannot recover where the evidence of the plaintiff herself shows that she crossed the street at the point where she fell, in such an inattentive and heedless manner that the accident was the result of her own negligence.
    Argued Jan. 16, 1906.
    Appeal, No. 348, Jan. T., 1905, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 2946,-refusing to take off nonsuit in case of Margaret Mcllhenney v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Clarence S. Eastwick, with him Edward D. Mitchell, for appellant.

      Joseph S. McLaughlin and Harry T. Kingston, assistant city solicitors, and John L. Kinsey, city solicitor, for appellee, were not heard.
    February 12, 1906:
   Per Curiam,

Pedestrians in going from one side of a street to the other are not confined to the regular crossings at the intersections, but may cross at any point according to their convenience. But in so doing they are bound to exercise care according to the circumstances, and especially bound to the alert and watchful performance of the duty of all travelers on all highways to look where they are going: Robb v. Connellsville Boro., 137 Pa. 42.

The appellant, about nine o’clock on an October evening, while on the footwalk on Parrish street, started to cross that street diagonally about fifteen feet from the crossing at Forty-fourth, and tripped over the curbstone which at that point projected two or three inches above the pavement. There was an electric light at the corner but the plaintiff testified that at this point “ it shaded off this curb.” She further testified “ I suppose I was looking ahead of me — I don’t know how I was looking. I guess I must have been looking ahead of me somewheres.” And again, “ I guess I must have been looking ahead of me. I don’t know where I was looking. As you go along or I go along, I go right on.” Though she varied the form of her expression somewhat in answer to different questions yet the substance of her testimony was the same and had at least the merit of frankness. It discloses such an inattentive and heedless disregard of the care which the situation required as to effectually defeat her right of action.

Judgment affirmed.


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    Brooke’s Estate.

      Will — Remainders—Contingent and vested remainders.

    Testator devised real estate to trustees with active duties “to hand over the net rents, issues and profits unto my daughter E. during all the term of her natural life, and upon her death to assign, transfer, convey and assure the said several premises unto such of her children as may then be living, share and share alike; and in default of any such child or children then living, then and in that case to transfer and convey the said several premises unto my daughter S.” E. had a child living at testator’s death. The daughter S. died prior to the child of E. When E. was sixty-six years old and a widow, the trustee petitioned the orphans’ court under the Price act for leave to sell the real estate. E. and her brother, who were the brother and sister of the whole blood of S., and her only heirs at law, joined in the petition. The heirs at law of the residuary devisee under testator’s will, being the half-sister and half-brother of E., resisted the petition on the ground that S., having died in the lifetime of E’s. child, never took any interest at all, and that E’s. child, having died before her mother, took nothing, and that the remainder thus falling became part of testator’s residuary estate. Held, .that E. and her brother of the whole blood were the only persons having an interest in the estate, and that the trust might be terminated and the estate sold at their instance.
    Argued Jan. 16, 1906.
    Appeal, No. 361, Jan. T., 1905, by Howard W. Brooke et al., from decree of O. C. Phila. Co., April T., 1901, No. 59, authorizing sale of real estate in Estate of James Brooke, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for leave to sell real estate.
    From the record it appeared that James Brooke, the testator, died in 1874, leaving a will made in 1871, by'which he directed as follows:
    “ I give and devise all and singular my real estate hereinafter specified unto James P. Burd and Thomas Jefferson Hunt, their heirs and assigns, for the uses and trusts, intents and purposes following; that is to say, .... To take, collect and receive the rents, issues and profits of my house No. 1628 South street, my three houses on the East side of Brooke court, and of my house at the Northeast corner of Brooke Court and Bedford street and after paying all taxes, expenses and repairs, to hand ovér the net rents, issues and profits unto my daughter Emeline during all the term of her natural life, and upon her death to assign, transfer, convey and assure the said several premises unto such of her children as may then be living, share and share alike; and in default of any such child or children then living, then and in that case to transfer and convey the said several premises unto my daughter Sarah Jane.”
    Emeline had a child living at testator’s death. The daughter, Sarah Jane, died in 1879, before the child of Emeline.
    The life tenant, a widow of sixty-six, being still living and childless, the substituted trustee under the will petitioned the orphans’ court under the Price act for leave to sell the trust property at private sale. This petition was joined in by the life tenant and her brother, who were brother and sister of the whole blood of Sarah Jane, and her only heirs at law — the position taken by the trustee being that the interest of Sarah Jane had so vested during her lifetime as to be transmissible to her heirs at law.
    The appellants, the only heirs at law of the residuary devisee under James Brooke’s will, and half-sister and half-brother of Emeline and John S. Brooke, claimed to have a standing to resist the petition on the ground that, Sarah Jane, the alternative remainderman, having died during the lifetime of Emeline’s child, never took any interest at all, and consequently could transmit none: and that Emeline’s child having died before her mother, had never fulfilled the condition of survival under which she was to take; and that the remainder thus falling became part of the testator’s residuary estate.
    Penrose, J., filed the following opinion:
    It must, perhaps, be conceded that the remainder to the testator’s daughter Sarah was and is, technically contingent, since it will not take effect if his daughter Emeline, the cestui que trust for life, — a childless widow, sixty-six years old, —shall leave a child or issue living at her death, in which case the fee is to go to them ; and yet if the life estate of Emeline had been followed by a remainder to her appointees by will, and in default of appointment to Sarah, the latter would have taken a vested remainder subject to be divested: Doe v. Martin, 4 Term Rep. 89 ; 4 Kent, 204, 824; though it is clear that the actual contingency of the remainder would have been much greater than in the case as it is and the tendency of modern decision is in favor of holding interests, which in ancient days would have been regarded as contingent, vested, subject to be divested: Hawkins on Wills, 223, 240-242.
    But the distinction in the present instance is of little importance, since the chief difference between a vested remainder and one that is contingent is that the latter may be destroyed by determination of the particular estate before the happening of the contingency (and even this cannot be where, as here, the life estate is held by trustees), while a vested remainder would simply be' accelerated; and unless the contingency is one which affects the capacity to take, a contingent remainder or other contingent interest is transmissible, even though not, in the technical sense, vested : Gray on Perpetuities, sec. 118; and hence it will pass in case of death before the happening of the event upon which it is dependent, to the heirs or devisees of the remainderman so dying: Bassett v. Hawk, 118 Pa. 94; Chess’s Appeal, 87 Pa. 362. Upon this subject the law is thus stated by Chancellor Kent: “It is well settled that all contingent interests of inheritance .... where the person who is to take is certain, are transmissible by descent and are devisable and assignable. If the person be not ascertained, they are not then possibilities coupled with •an interest, and they cannot be either devised or descend, at the common law. Contingent and executory, as well as vested interests, pass to the real and personal representatives, according to the nature of the interest, and entitle the representatives to them when the contingency happens : ” 4 Kent, 262, 511.
    It is immaterial, therefore, in this case that Sarah died in the lifetime of Emeline, the cestui que trust for life. She left no issue, and, as she died intestate, her estate in remainder passed, under the express provisions of the intestate laws, to her surviving brother and sister of the whole blood, to the exclusion of the brother and sister of the half blood; and it is also immaterial that the sister of the whole blood is cestui que trust for life, and the remainder cannot take effect until her own death: Stewart’s Estate, 147 Pa. 383, 389; Deginther’s Appeal, 83 Pa. 337.

      It is true that words of inheritance are wanting in the devise in remainder to Sarah; but as the Act of April 8, 1833, sec. 9, P. L. 249, Purd. 2103, declares that the “ whole estate shall pass,” notwithstanding the omission, in the absence of evidence of contrary intention, this also is immaterial.
    Practically, therefore, the cestui que trust for life and her brother of whole blood are the only persons having an interest in the estate, and the trust may be terminated and the estate sold at their instance: Culbertson’s Appeal, 76 Pa. 145 ; Sharp-less’s Estate, 151 Pa. 214.
    * * * *****
    As the brother and sister of the half blood, as we think, have no interest in the property which is the subject of the petition, they have no right to oppose the sale asked for by the cestui que trust for life and the actual owners of the estate in remainder.

      Error assigned was the (decree authorizing the sale.

      Sidney E. Smith and Edwin F. Sehively, for appellants.
    The interest of Sarah Jane Fullerton, deceased sister of the life tenant, Emeline Powell, in the premises in question, was a contingent remainder, and as it was not the intention of the testator that it should vest during the life of the latter, there is nothing that can pass to Sarah Jane’s heirs at law thereunder: Schweikert’s Estate, 40 Legal Int. 394; Woelpper’s App., 126 Pa. 562; Steinmetz’s Estate, 194 Pa. 611; Dunwoodie v. Reed, 3 S. & R. 435; Buzby’s App., 61 Pa. 111; Sager v. Galloway, 113 Pa. 500; Stump v. Findlay, 2 Rawle, 168; Waddell v. Rattew, 5 Rawle, 231; Fife v. Miller, 165 Pa. 612; Nixon’s Trust, 188 Pa. 621; Peirce’s App., 4 W. N. C. 439; Kern’s Est., 5 Pa. Dist. Rep. 264; Stewart v. Neely, 139 Pa. 309; Fetrow’s Est., 58 Pa. 424; DeLassus v. Gatewood, 71 Mo. 371; Smith v. Rice, 130 Mass. 441; Demill v. Reid, 17 Atl. Repr. 1014.
    These appellants have an interest in this property which qualifies them to object to this petition for a sale because if Emeline Powell die childless, there will be no person named in the will of James Brooke in whom the remainder is vested or can vest, and the lapsed reversion therefore vests in the residuary devisee, the testator’s widow, Eleanor Brooke, whose only heirs at law are these appellants: Mitcheson’s Estate, 6 Pa. C. C. Rep. 99; High’s Est., 186 Pa. 222; Bell’s Estate, 147 Pa. 389; Jordan v. McClure, 85 Pa. 495; Williams v. Neff, 52 Pa. 326.

      S. G. Birnie, for appellee.
    The rule is well settled that a contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person dies before the contingency happens, unless the remainder is so limited as to depend on the life of the remainder-man: Kelso v. Dickey, 7 W. & S. 279; Hopkins v. Jones, 2 Pa. 69; Buzby’s App., 61 Pa. 111; Chess’s App., 87 Pa. 362; Pennock v. Eagles, 102 Pa. 290; Bassett v. Hawk, 118 Pa. 94; Fotterall’s Est., 19 Phila. 49.
    February 12, 1906:
   Per Curiam,

The decree is affirmed on tire opinion of the court below.


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    Commonwealth v. Mallini, Appellant.

      Criminal law — Murder—Information—Indictment.
    Where an indictment for murder has been regularly found after a hearing before a justice, it is too late at the trial to move to quash the indictment for the insufficiency of the information.
    An information by a county detective officer before a justice of the peace to the effect that “being duly sworn” he “deposes and says that the prisoner did kill and murder the deceased by stabbing him in the body with a knife. On information received,” is not open to the charge of insufficiency because it does not show probable cause, and because it fails to set forth the deponent’s belief that the charge was true.

      Criminal law — Murder—Jury—Deputy sheriff — Coroner.
    Where the sheriff of a county is absent from the county in foreign parts, the coroner may under the common law, and under the Act of April 14, 1834, sec. 131, P. L. 333, perform the sheriff’s duties in regard to selecting, summoning and returning jurors. The Act of May 24, 1887, P. L. 185, authorizing the appointment by the sheriff of the chief deputy, does not, it seems, repeal the earlier act,-or change the ancient system. Whether this is the case or not, where no chief deputy has been appointed under the act of 1887, the coroner must perform the duties.
    Argued Jan. 29, 1906.
    Appeal, No. 377, Jan. T., 1905, by defendant, from judgment of O. & T. Fayette Co., Sept. T., 1905, No. 30, on verdict of guilty of murder of the first degree in case of Commonwealth v. Giovanni Mallini.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Reppert, P. J.
    The opinion of the Supreme Court states the case.

      .Errors assigned were in refusing to quash the indictment, and in refusing to arrest the judgment.

      A. E. Jones, with him S. R. Shelby, for appellant.
    If the information in this case is insufficient and unconstitutional, it should be so held. The sincerity of the county detective in making, or the justice in accepting, the information, the probability of the defendant’s guilt are all matters about which, the defendant in this case contends, there should be no concern: Conner v. Com., 3 Binney, 38; Com. v. Barr, 25 Pa. Superior Ct. 609; Com. v. Roland, 18 Lanc. L. Rev. 25; Com. v. Clement, 8 Pa. Dist. Rep. 705; Burk v. Howley, 179 Pa. 539; March v. Com., 21 W. N. C. 566; Com. v. Schoen, 25 Pa. Superior Ct. 211; Com. v. Kaiser, 184 Pa. 493.
    The jury was improperly drawn: Com. v. Church, 1 Pa. 105; McCullough v. Com., 67 Pa. 30; Com. v. Keenan, 67 Pa. 203; Hutchison v. Com., 82 Pa. 472; Ginter v. York Co., 3 Pa. C. C. Rep. 111; Goldfon v. Allegheny Co., 14 Pa. Superior Ct. 75; In re Munger, 10 Appellate Div. 347 (41 N. Y. Supp. 882); Stamey v. Barkley, 211 Pa. 313; Brown v. Com., 73 Pa. 321; Kittanning Ins. v. Adams, 110 Pa. 553; Com. v. Zillafrow, 207 Pa. 274.

      Thomas H. Hudson, district attorney, Davis W. Henderson, assistant district attorney, and D. W. McDonald, for appellee, were not heard.
    February 12, 1906:
   Opinion by

Mr. Chief Justice Mitchell,

The assignments of error raise only two questions.

First, the insufficiency of the information. The county detective officer appeared before a justice of the peace, and, “ being duly sworn, deposes and says that .... Giovanni Mallini did kill and murder Antonio Bippe by stabbing him in the body with a knife. On information received.” At the trial a motion was made to quash the indictment for the insufficiency of the information. It was too late. The indictment was regularly found after a hearing before the justice, and such finding “ cannot be invalidated for any such reason: ” Com. v. Brennan, 193 Pa. 567.

But the objection to the information was not tenable on the merits. It was based on the allegation that the information did not show probable cause, and, further, that it failed to set forth the deponent’s belief that it was true. As to the first it is sufficient to say that the deponent made positive affidavit of the fact of killing. There is no rule in regard to this or any other proceeding that an affirmative averment must set out the evidence on which the deponent makes it. As to the second objection, after his positive affidavit of the fact any further averment of deponent’s belief was wholly unnecessary. His affidavit necessarily included his belief. And even without his affirmative affidavit his belief so far as required to be shown at all was necessarily implied in his action. He was a county official charged with the duty of assisting in the administration of justice, and especially in the discovery and arrest of supposed criminals. When he appeared in his official capacity and on oath procured the issue of a warrant for an arrest for the highest crime known to the law, to require a formal statement on the face of the information that the deponent believed what he was swearing to would be sacrificing substance to the flimsiest kind of technicality. The. perpetrator of crime has always the start of the law, and justice must move quickly to overtake him. It is the duty of the officers to act promptly on such information as may be at hand. The more careful investigation as to the individual devolves later on the grand and petit juries. If the officers are too hasty or overzealous and act on insufficient evidence the proper remedy for immediate relief is the writ of habeas corpus, and later if there is any indication of wanton or careless disregard of his rights an innocent man is never likely to fail of redress by an action for false imprisonment.

The second question raised by the assignments of error is that the grand and petit juries were irregularly and illegally drawn. The sheriff of Fayette county being in England the court below made a formal order of record that in his absence his duties in regard to selecting, summoning and returning of jurors should be performed by the coroner in accordance with the Act of April 14, 1834, P. L. 333. The coroner performed the duties under this order. The act of 1834, sec. 131, provides that “in case of the death, resignation, removal from office, inability or incompetency of any sheriff to act ” his duties relative to the selecting, summoning and returning of jurors shall be performed by the coroner. The order of the court below followed the exact command of the statute. That a sheriff absent in England was under an “inability” to draw a jury in Fayette county does not need further demonstration.

It is argued for appellant that that section of the act of 1834 is superseded by the Act of May 24, 1887, P. L. 185, authorizing the appointment by the sheriff of a chief deputy to take charge of his office and “to execute and make returns of all writs and other processes directed to the sheriff, and to perform all other duties incumbent upon the sheriff.” But it is to be observed that this is a general act having manifest application to the ordinary routine of the sheriff’s office, and it is not at all clear that it was intended or has the effect of repealing the specific provisions of the act of 1834 as to the selection of jurors, or of' changing the ancient system inherited from the common law and enacted in our statutes from the provincial days by which in certain cases the duties o,f the sheriff devolve upon the coroner.

But whether or not in any case a chief deputy should be substituted for the coroner in the selection of jurors it could not be claimed here. The act of 1887 requires the deputy to be appointed by deed duly recorded, and his authority is dependent upon “ an order of the court of common pleas first made for that purpose.” There is no evidence here that the sheriff of Fayette county had appointed such chief deputy, and the order of court delegating the duties to the coroner is an effectual negation of the court’s authorization of the deputy sheriff if a deputy was appointed.

Judgment affirmed and record remitted for purpose of execution in accordance with law.


author: Mr. Justice Mestbezat,

text:
    Keilich, Appellant, v. Blum.

      Contract — Oral contract — Written contract — Commissions on sale of property — Partnership.
    On a bill in equity for an accounting, it appeared that plaintiffs and defendant had entered into an oral agreement to divide profits realized from any sale of a certain property, and that subsequently they entered into a written agreement as to division of profits on one particular sale that was contemplated. The court below, affirmed by the Supreme Court, held from a construction of the oral and written agreements, and from the acts of the parties, that the written agreement superseded the oral agreement so that the plaintiffs were not entitled to share in the profits realized by defendant, on a sale other than that specified in the written agreement.
    Argued Jan. 3, 1906.
    Appeal, No. 5, Jan. T., 1905, by plaintiff from decree of C. P. No. 5, Phila. Co., Sept. T., 1901, No. 3781, dismissing bill in equity in case of Louis A. Keilich and Charles D. Cramp v. Gabriel Blum and Jennie Blum.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account. Before Ralston, J.
    The trial judge filed the following opinion :
    findings of fact.
    It.appears from the testimony of Frederick J. Geiger, a member of this bar, that some time in the fall of 1899, Keilich, one of the plaintiffs, called upon him and stated that the board of directors of a certain company were about to erect a cement plant. He then suggested to Keilich that his company should purchase the Coplay Cement Company. Geiger obtained an option from all the stockholders of the company, which expired November 26 or 27,1899. He gave to Keilich an option which expired on October 28, 1899, at which time all of his rights ceased.
    After Keilich’s option had expired, Geiger told him that he did not desire to have any more negotiations with him, but that if he would bring him responsible parties, who could pay a forfeit of §30,000, he would enter into negotiations with them.

      Some time between January 10 and 15, 1900, Keilich called upon Blum, and told him that he had control of the Coplay Cement Company, through Geiger’s efforts; that Geiger had furnished him with an option and would furnish an option to the party he would bring, and that Geiger had it open for him at all times. Keilich testified that the option which Geiger had given to him continued until January, and that Geiger’s option had not expired when he first saw Blum, but “ was active all the time when I saw Mr. Blum,” and did not expire until some time afterward. In this, be is evidently mistaken. Keilich and Cramp both testified that at this interview with Blum, it was agreed that they should divide the profits derived from any sale or reorganization of the company into three parts — one for each of them. At this first interview Keilich handed to Blum certain reports and other documents relating to the condition of the company, and Blum said he would read them over.
    In the latter part of January or early in February, Keilich introduced Blum to Geiger. Blum then discovered that neither Keilich nor Geiger bad an option, but that Geiger had a certain influence with the owners of the property by reason of having represented for a number of years the owner of a large interest in the stock.
    Some time in the early part of February, Edgar Cohen, representing a syndicate of English capitalists, arrived from London, and Blum opened to him the subject of the purchase of the Coplay Cement Company.
    Ón March 3, 1900, Blum, Keilich and Cramp, entered into a written agreement, as follows :
    “ Whereas, we, the undersigned, are engaged in negotiating a sale of the plant, stock, business and assets generally of the Coplay Cement Company to a syndicate who propose to purchase the same and form a new company for carrying on the business, and in carrying such negotiations to a successful issue our and each of our services are necessary.
    “1. We therefore agree to give our and each of' our utmost aid and assistance in the above matter, and to act together and for our joint interest.
    “ 2. We agree that the compensation received for our services in negotiating said sale (which is to be forty thousand dollars in cash, payable when purchasing syndicate make final settlement with the vendor) shall be equally divided between us.
    “ Witness our hands and seals this third day of March, A. d. 1900.
    “ Witnesses, “ Chas. D. Cramp, [l. s.]
    “F. Earl Yon Leer “ Louis A. Keilich, [l. s.]
    “ Gabriel Blum, [l. s.] ”
    On March 10, 1900, an agreement was entered into between Cohen and Blum, which is as follows :
    “ Whereas, Edgar Cohen, has for some time past been negotiating for the purchase of the plant, business and assets of the Coplay Cement Company, located at Coplay,' Pennsylvania.
    “ And whereas, the said negotiations were initiated by and have been carried on through Charles D. Cramp, Louis A. Keilich, and Gabriel Blum, and said Cohen, desires to secure the services of said gentlemen in bringing said negotiations to a successful termination in the consummation of said purchase.
    “ Now therefore, in consideration of the premises and of other good and valuable consideration, it is hereby stipulated and agreed as follows, viz.:
    “ 1. The said Charles D. Cramp, Louis Keilich and Gabriel Blum, are to continue to give their aid and assistance in bringing about a consummation of said purchase.
    “2. The said Edgar Cohen agrees and binds himself on consummation of said purchase to pay to the said Charles D. Cramp, Louis Keilich, and Gabriel Blum, as compensation for their said services in aid of said purchase, the sum of $40,000 to be equally divided between them.
    “ 8. That said payment shall be made by said Edgar Cohen to the gentlemen aforesaid at the time of the final settlement with the vendors at the consummation of said purchase.
    “In witness whereof, the parties have hereunto set their hands and seals this tenth day of March, A. D. 1900.
    “Witnesses, “Edgar Cohen, [l. s.]
    “ Gabriel Blum, [l. s.] ”
    The amount of compensation to be received from the English syndicate was modified on October 31, 1900, by the following letter:—
    “ Philadelphia, October 31, 1900.
    “ Mr. G. Blum.
    “Dear Sir: — We hereby authorize you to subscribe for each of us to $5,000 of the preferred shares of the new company, same to be paid out of the commissions which we are to receive, as per agreement with Mr. Edgar Cohen, and the balance due us is to be paid us in cash — or should the purchasers insist on our accepting less than the sum of $25,000 originally agreed upon on the ground that we had agreed some time in July to accept the sum of $10,000 provided same was paid us on or about August 1, you are then authorized, if you find it necessary to do so, to accept in lieu of the $25,000 the sum of $15,000, same to be paid to us in preferred shares of the company at par, or if you can succeed in getting the total sum of $25,000 by our subscribing to $25,000 preferred stock, you may do so, or if, under no circumstances will they agree not to pay over $10,000 in cash, you are then authorized to accept that sum in full settlement, or that they pay us $10,000 in cash and $10,000 preferred shares, or whatever arrangement you may enter into will be entirely satisfactory to us, and whatever expenses you may have on your European trip shall be refunded to you by deducting same from our commissions.
    “ Chas. D. Cbamp,
    “ Louis A. Keilich.”
    By the efforts of the parties and upon the payment of $20,000 the English syndicate procured an agreement of sale of option, to expire July 11, 1900, which was, subsequently, upon the payment of $30,000, extended to December 31, 1900.
    In December, 1900, Blum learned by cablegram from England that the syndicate would probably not be able to complete the purchase. Accordingly, on December 19, 1900, he procured from Cramp and Keilich the following release :
    “Whereas, The Eiiglish Syndicate, represented by Edgar Cohen, of London, will not complete its purchase of the Coplay Cement Company and have notified you by cable that they will relinquish their option.
    “ Now therefore, for value received, we agree to and do hereby release Gabriel Blum from all claims under contracts now existing with Edgar Cohen (and it is further agreed that all relations existing between us relative to said Coplay Cement Company are hereby annulled).
    “Witness our hands and seals this nineteenth day of December, 1900.
    During November and December, 1900, Blum had talked with certain parties in New York about the Coplay Cement Company, and early in January, 1900, shortly after the option of the English syndicate had expired, he entered into negotia.tions with Sutro Brothers & Co., which eventually led to the purchase and reorganization of the company by himself and Sutro Brothers & Co.
    The agreement of March 3, 1900, made after Blum learned that Keilich had no option and no influence with Geiger, relating, as it does, to the same subject as the alleged previous verbal agreement, must be taken to represent the final understanding of the parties and to define and fix their rights in their relations with each other. It constitutes a partnership between them for the purpose of selling the Coplay Cement Company to the English syndicate, represented by Edgar Cohen, and when their association under that agreement ceased their responsibility to each other came to an end.
    There is no complaint by the plaintiffs of any action of Blum’s during the existence of this agreement. After the English syndicate’s option had expired, Blum was at liberty to act in relation to the company without regard to Keilich and Cramp.
    The bill is dismissed with costs.

      Error assigned was decree dismissing the bill.

      E. Cooper Shapley, with him Edwin C. Nevin, for appellants.

      Thomas Earle White, with him White, White Taulane, for appellees.
    February 19, 1906:
   Opinion by

Mr. Justice Mestbezat,

This was a bill filed by the appellants for an accounting in a business transaction which they claim to be a partnership between themselves and the defendant, Gabriel Blum. The appellants allege that they had. an interview with Blum, one of the appellees, in January, 1900, in which it was agreed that the three parties should sell, for the owners, the Coplay Cement Company plant and divide the profits or commissions realized therefrom among them equally: that in pursuance of said agreement the property was finally sold by Blum, and that they are each entitled to the one-third of the profits or commissions which he received for selling the plant. Blum denies the right to an accounting, and denies that he sold the plant or received any profits or commissions for selling it. He alleges that in March, 1900, the three parties entered into a written agreement by which they were to act together and for their joint interests in selling the Coplay Cement Company plant to an English syndicate, and that this agreement superseded and took the place of any prior oral agreement which was entered into between the parties relative to the sale of the plant. It is further alleged by Blum that all subsequent agreements between him and the appellants, bearing on the sale of the plant, were in writing, and that their relations pertaining to the sale of the plant were terminated by a written release executed by the appellants and delivered to Blum on December 19, 1900.

The learned trial judge held that the agreement of March 3, 1900, related to the same subject as the alleged previous verbal agreement, and should be taken to represent the final understanding of the parties and to define and fix their rights in their relations with each other. The appellants concede that if the trial judge was right in this conclusion, that the agreement of March 3, 1900, embodied the whole contract between the parties, that their entire case falls to the ground.

We agree with the court below in his conclusion that the written contract of March 3, 1900, took the place of any'alleged prior oral agreement between the parties, and that what was done by them in attempting to sell the cement company plant was done in pursuance of that agreement. It conclusively appears that at the date of the interview between Keilich and Blum in January, 1900, that Keilicb misrepresented to Blum that he had at that time the control of an option on the plant. The trial judge so finds, and his finding is amply supported by the testimony in the case. The consideration for Blum entering into an arrangement or agreement to divide profits with Keilich and Cramp was the fact that Keilich controlled an option on the plant, otherwise there was no reason for Blum giving his time and services in trying to sell the plant and'dividing the profits or commissions on the sale with the appellants. Blum did not discover that Keilich had no option or control of an option on the plant at the time of their interview in January, 1900, until he subsequently saw Mr. Geiger, in the latter part of January or early in February, when Geiger disclosed the fact to Blum that Keilich’s option had expired on October 28, 1899, and that all of Keilich’s rights to sell the plant had ceased after that date. After Blum had had this interview with Geiger, and had ascertained Keilich’s inability through the want of an option to transfer the cement plant to a purchaser, Blum determined that thereafter any arrangement or agreement between the appellants and himself by which they were to act jointly in making a sale of the plant should be in writing. Before any further steps were taken towards negotiating a sale of the plant the three parties entered into the written contract of March 3, 1900, which the appellants allege did not supersede or take the place of the alleged prior oral agreement by which the three parties were to divide the profits or commissions on any sale of the cement plant, and under which they bring this bill for an accounting. On the other hand, Blum claims that it did supersede any prior agreement between the parties, and that when it was terminated the relations between the parties in trying to make sale of the plant ceased and determined.

We think it manifest from the written agreement itself that the parties intended to make it the final and only contract be^ tween them relative to negotiating a sale of the cement company plant. If the alleged oral agreement was, as claimed by appellants, to continue in force, it was general, and applied to any sale that 'might be made by the parties, and hence it included the provisions of the written contract and any sale that might be made in pursuance thereof to the English syndicate. It applied to any sale, while the written contract was applicable only to a sale to the English syndicate. If, therefore, the appellants’ contention be correct, there was no necessity whatever for the written agreement. It will be observed that the alleged oral agreement provided that the profits derived' from any sale of the cement plant should be divided into three parts, while the written agreement provided “ that the compensation received for our services in negotiating said sale shall be equally divided between us.” The written agreement, it is true, in addition to fixing each party’s share of the profits, also provided that the parties should give their aid and assistance and act together and for their joint interests in making the sale to the sjmdicate. This, however, they were compelled to do under the alleged parol agreement. The two stipulations embrace the whole of the written contract, save the reference to the syndicate as the proposed purchaser, and hence it will be observed that that contract was wholly unnecessary if the prior alleged oral agreement was still in existence. The written contract, therefore, if the appellants’ contention be correct, was a vain thing. It in no manner changed the terms of the alleged prior oral agreement, and gave no new rights to the appellants, and imposed no other or greater responsibilities upon the appellee. In addition to this manifest intention of the parties to make the written contract the only agreement between them defining their rights and duties in making sale of the cement plant, the recital in the written contract clearly discloses that it was to be the only agreement between the parties. The contract shows in its recital that the parties are jointly interested in making a sale of the cement company plant to a particular purchaser. It recites “ that they are engaged in negotiating a sale of the plant, stock, business and assets generally of the Coplay Cement Company to a syndicate who propose to purchase the same.” If the contention of the appellants be true, the parties at that time rvere, by virtue of a parol contract, jointly engaged in attempting to make a sale to this particular syndicate, and also engaged in trying to sell to anyone who would purchase the plant. If they were-engaged in trying to negotiate a sale of the plant to any purchaser who ’ desired to buy, why did they enter into this written contract to act together in trying to make this particular sale ? , Why did they not recite in the written contract that they were trying to make a sale of the plant, without stating that their joint labors were enlisted in making a sale to this syndicate? The language thus used clearly indicates that their joint efforts relating to a sale of the cement plant were limited to a sale to the syndicate, and hence that any prior oral agreement of a general nature relative thereto was abandoned and was no longer operative. The reference in the written agreement to the amount of compensation which they were to receive for making the sale was not a stipulation fixing that amount, but a parenthetical statement of a sum which previously had been agreed to among them.

Pursuant to the written contract of March 3, 1900, Blum, for himself, Keilich and Cramp, entered into a written agreement on March 10, 1900, with Edgar Cohen, representing an English syndicate, by which the services of Blum and his associates were secured in bringing to a successful termination the negotiations for a sale of the cement company plant to Cohen. The consideration to be paid by Cohen for the services rendered was the sum of $40,000. On October 31, 1900, while Blum and his associates were still assisting Cohen in his negotiations for the purchase of the Cement plant, Cramp and Keilich authorized Blum to accept for their services less than $40,000; in fact, any sum which he could secure. If the alleged oral agreement was still subsisting, there was no reason why Cramp and Keilich should have been willing to reduce their commissions to the amount which they authorized Blum to accept. If the sale was not made to the English syndicate they still had an opportunity, if their contention be correct, of making a sale to others, and of still receiving, in conjunction with Blum, what they deemed a fair compensation for their services. If, on the other hand, the relations of the parties in making the sale were to end with the failure to sell to the English syndicate, the reason for their anxiety to consummate the sale to Cohen is manifest.

Nor do we agree with the contention of the appellants that the release of December 19, 1900, supports their contention that the alleged oral agreement continued in operation during the existence of the written agreement and subsequent thereto until the’ property was finally disposed of. When it was ascertained in December, 1900, that the English syndicate would not purchase the property, Cramp and Keilich, under their hands and seals, released Blum “ from all claims under contracts now existing with Edgar Cohen.” In preparing this written release there had been added to the words just quoted, “ and it is further agreed that all relations existing between us relative to said Coplay Cement Company are hereby annulled.” These words were stricken out before the release was signed. The testimony discloses no reason for striking them out. If, however, there was still an existing oral agreement by which the parties were to make sale of.the property and divide the profits, is it not apparent that Blum would have had those words remain in the release ? The record discloses no reason why Blum should have desired to sever his relations with the appellants in negotiating a sale to a particular purchaser and at the same time desired to continue such relations with them, on the same terms, in trying to make a sale to any other purchaser who might wish to buy the plant. If it was important for him to have a release in writing, relieving him from liability on the Cohen contract, why was it not equally important that he should have a written contract releasing him from responsibility for his action under any existing oral contract ? It is apparent, we think, that the reason for omitting from the release the words stricken from it was that all parties regarded the written contract relative to the sale of the plant to the English syndicate as the only existing agreement between them on the subject.

The view we take of the case requires no consideration of the other points raised in the appellants’ argument.

The decree of the court below is affirmed.