text:
    Donnelly’s Estate.

      Wills — Issue devisavit vel non — Undue influence — Testamentary capacity.

    1. In determining whether an issue devisavit vel non should be allowed, the authoritative test is whether upon all the testimony a verdict against the proponents of the will should be allowed to stand. If such a verdict ought not to be allowed to stand, an issue ought not to be awarded.
    2. An issue devisavit vel non will not be awarded where there is no evidence of the exercise of any undue influence by testator’s eldest son, the chief beneficiary under the will, who occupied a relation to him that afforded an opportunity to influence his mind, or by anyone else, and the proof shows that the testator went alone to the office of an attorney who had represented him for many years, discussed with him the disposition he wished to make of his property, remained in the office until the will was written and read to him, and then executed it and directed it to be deposited with his executor, a trust company, where it remained until his death, nine months later, and the evidence as to testamentary capacity, though conflicting, is overwhelmingly in favor of the proponents of the will.
    Argued Feb. 22, 1910.
    Appeal, No. 28,
    Jan. T., 1910, by-Joseph Donnelly, from decree of O. C. Lackawanna Co., No. 25 of 1909, refusing an issue devisavit vel non in Estate of Patrick Donnelly, deceased.
    Before Fell, C. J., Beown, Mbsteezat, Potter and Moschzisker, JJ.
    Affirmed.

      Petition for an issue devisavit vel non. Before Sando, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was decree refusing the issue.

      R. H. Holgale, with him A. A. Vosburg and W. A. Jennings, for appellant.

      O’Brien & Kelly, for appellee.
   Per Curiam,

March 28,1910:

In determining whether an issue devisavit vel non should be allowed, the authoritative test is whether upon all the testimony a verdict against the proponents of the will should be allowed to stand. If such a verdict ought not to be allowed to stand, an issue ought not to be awarded: Wainwright’s App., 89 Pa. 220; Knauss’s App., 114 Pa. 10. This test was applied by the learned judge of the orphans’ court, who, after a most thorough consideration of all the -testimony produced, ■ decided that a court would not be justified in sustaining a vérdict against the will. A review of the testimony has disclosed nothing that should lead to a reversal of the decree dismissing the petition for an issue.

The testator’s oldest son, who was the chief beneficiary under the will, occupied a relation to him that afforded an opportunity to influence his mind. But there was no evidence of the exercise of any influence by this son or by anyone at any time to procure the making of the will. The circumstances connected with its preparation and execution show that no influence was exerted at that time, and they repel any inference that the testator was acting under an influence previously exerted. He went alone to the office of an attorney who had represented him for many years, and discussed with him the disposition he wished to make of his property. He remained in the office until the will was written and read to him, and then executed it and directed it to be deposited with "a trust company, one of the executors, where it remained until his death nine months later.

The testimony as to testamentary capacity was conflicting. Against it was that of members of the testator’s family from whom he had become estranged, and two physicians, one of whom had observed nothing abnormal about him except his apparent lack of interest when a member of his family was critically ill. The other testified as an expert in answer to a hypothetical question based on the testimony of a witness hostile to the will. Against this testimony was that of friends and neighbors who had lived in the vicinity of the testator’s home for years, who saw him daily, and many of whom did business with him; and his family physician, who had seen him as he passed his place of business and had spoken to him almost every day for over thirty years. In connection with the fact that the will in question corresponded in its general plan with two prior wills, one made a year and a half and the other four years before, this testimony must be regarded as so overwhelmingly in favor of the proponents of the will that a verdict against them should not stand.

The decree is affirmed at the cost of the appellants.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    New York Trust Company, Appellant, v. Langcliffe Coal Company
    (No. 1).

      Practice, equity — Mortgages — Bonds — Substituted bond and mortgage — Security for loans — Remedies for enforcing payment.

    1. The mere fact that a creditor has several securities for his debt does not confer Jurisdiction on equity to enforce payment of his claim.
    2. Where the holder of a substituted bond and mortgage of a coal company, securing the same loan and including the same land as an original bond and mortgage given by two individuals, also holds an agreement with a default clause whereby the property of the coal company, not included in the original mortgage, is made security for the payment of the original and substituted bonds and mortgages, and a further agreement whereby the whole of the capital stock of the coal company is to be held under full powers as additional security for the loan, such holder has adequate and effective remedies at law for enforcing payment of the loan and does not require the aid of a court of equity in case of default.

      Practice, equity — Bill for an accounting — Discovery.
    3. Where a bill shows no ground for an accounting, a prayer for discovery, incidental to the accounting, must be denied.
    Argued Feb. 23, 1910.
    Appeal, No. 385,
    Jan. T., 1909, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1908, No. 14, dismissing bill in equity in case of The New York Trust Company of the City of New York v. The Langcliffe Coal Company, Limited, The Langcliffe Coal Company, The Hudson Coal Company, Thomas R. Brooks, George G. Brooks and John H. Brooks, executors of the will of Reese G. Brooks, deceased, J. Farnham Mears and The Lackawanna Trust & Safe Deposit Company, executors of the will of John A. Mears, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the adjudication of the parties’ rights against certain properties under a mortgage and agreement and for a sale of the properties and for discovery and relief in connection therewith. Before Edwards, P. J.
    Edwards, P. J., filed the following opinion:
    The causes of demurrer assigned by the three defendant companies are the same.
    1. Under the allegations of the twenty-fifth paragraph of plaintiff’s bill the New York, Susquehanna & Western Coal Company should have been joined as defendant.
    2. The plaintiff has a good, sufficient and adequate remedy at law.
    3. The plaintiff’s bill is multifarious.
    The causes of demurrer assigned by the executors of Reese G. Brooks, deceased, and by the executors of John A. Mears, deceased, are the want of jurisdiction in equity, plaintiff having an adequate remedy at law; the failure to join the New York, Susquehanna & Western Coal Company as defendant; and particularly that plaintiff’s bill discloses no cause of action of any kind against Brooks or Mears either in law or equity.

      While the bill and exhibits cover 130 printed pages, there being fourteen exhibits, some of them very lengthy, the lines of the various controversies between the parties are well defined and require the application of only a few plain principles of law.
    The transactions between the principal parties concerned in the case began on April 20,1892. On that day four written instruments were executed. They are exhibits “A,” “B,” “C” and “D.”
    Exhibit “A”: An agreement between Brooks and Mears and the Wilkes-Barre & Hudson River Improvement Company, hereinafter, for convenience called the Hudson company. This agreement includes a coal and tonnage arrangement between the parties, and the Hudson company agrees to advance $325,000 to Brooks and Mears on bond and mortgage for the development and improvement of their mines.
    Exhibit “B”: An agreement between the Langcliffe Coal Company, first party; the Hudson company, second party; and Brooks and Mears, third party. This is a tonnage agreement only. It is the same as exhibit “A,” except that it contains no reference to the loan of $325,000. Brooks and Mears join in the agreement because they were the owners of all the capital stock of the Langcliffe Coal Company. The land described in exhibit “B” is not included in exhibit “A.”
    Exhibit “C”: The bond and mortgage given by Brooks and Mears to the Hudson company to secure the loan of $325,000, reciting exhibit “A” and covering only the land therein described.
    Exhibit “D”: An agreement between Brooks and Mears and the Hudson company, providing, inter alia, that as Brooks and Mears were about to form a limited partnership association, which, when formed was to issue its first mortgage bonds to cover the amount unpaid on the said loan, the Hudson company, on delivery to it of said mortgage bonds would “cancel and discharge” the bond and mortgage exhibit “C”; and Brooks and Mears also agree that the said limited partnership association would enter into a tonnage contract with the Hudson company, or any company it would name.

      The foregoing agreements and bond and mortgage, all signed on the same day are to be considered together. Brooks and Mears needed money to improve their coal properties and the Hudson company wanted the coal. A tonnage agreement was entered into, a loan was arranged and a mortgage was given to secure the loan. This mortgage did not cover .the land of the Langcliffe Coal Company. It could not legally, because the lessor of the Langcliffe land would not consent to a conveyance of it from the Langcliffe Coal Company to Brooks and Mears, and, consequently, it could not be included in the mortgage, exhibit “C.” It appears by later agreements, that it was intended all the time that the Langcliffe land should be security for the loan of $325,000, equally with the Brooks and Mears land embraced in the mortgage; because all the land, the Brooks and Mears’ and the Langeliffe’s, constituted one mining operation, and the monéy advanced by the Hudson company was used necessarily for the benefit of both properties. It is this element in the case — the effort by means of subsequent agreements- to make and hold the Langcliffe land liable for said loan in the same manner and to the same extent as the land included in the Brooks and Mears mortgage, that accounts for any complications in the controversy between the parties; and it is this phase of the ease that gives the plaintiff a color of right to come into a court of equity for relief.
    Before considering the subsequent agreements above referred to, it is desirable to trace the history of the Brooks and Mears bond and mortgage, exhibit “ C.” The next paper showing what was done with the mortgage is,
    Exhibit “E”: On August 15, 1893, the Hudson company assigns the Brooks and Mears bond and mortgage to the Continental Trust Company. The assignment is made subject to the right to “exchange and substitute for said bond and mortgage the bond and mortgage upon the same property, of the joint stock or limited partnership in said agreement described” (being exhibit “D”).
    The next exhibit relating to the mortgage, although not the next transaction in point of time, is
    Exhibit “I”: This is a mortgage, dated March 23, 1896, given by the Langcliffe Coal Company, Limited, to the Continental Trust Company, of the city of New York. It is for the same debt and includes the same land specified in the original Brooks and Mears mortgage and it recites the assignment of the latter or old mortgage to the Continental Trust Company on August 15, 1893.
    It is evident that, according to the original intention of the parties, and prior to April 23, 1896, the Langcliffe Coal Company, Limited, was formed. In pursuance to the agreement of April 20, 1892, exhibit “D,” and following the condition expressed in the assignment to the Continental Trust Company of the old bond and mortgage, the latter company accepted the new bond and mortgage from the Langcliffe Coal Company, Limited, in lieu of the old. The new mortgage recites the right to substitute one for the other and it contains the usual default clauses and the right to issue scire facias, etc. It is hardly necessary to discuss the law applicable to s.uch a state of facts. All liability under the Brooks and Mears bond and mortgage has been canceled: The debt has been extinguished. And this has been done, not by operation of a principle of law only, but by the express understanding and agreement of all the parties concerned. As to the law on this point we refer to Hosler v. Hursh, 151 Pa. 415, and Neale v. Dempster, 179 Pa. 569.
    Bo far then, and without reference to any other agreements, the Continental Trust Company, or its successor, the plaintiff, holds the mortgage given by the Langcliffe Coal Company, Limited, as the only security for the loan of 8325,000. It has nothing else; and, for the enforcement of the payment of the amount of this mortgage it has a complete and adequate remedy at law.
    This being the case, why does the plaintiff come into a court of equity? To answer this question, the other agreement not yet discussed must be considered. The source of plaintiff’s claim to equitable relief must be found, if found at all, in the right of the plaintiff to the Langcliffe land as additional security for the loan and in the agreement as to the Langcliffe capital stock. Plaintiff contends that it cannot establish or enforce this right by any adequate legal remedy; and that if equity ought to intervene to adjudicate a part of plaintiff’s claim, then, under a well-known principle, equity has its grasp on the whole controversy. On this point we shall examine the other agreements, in order to ascertain how for the plaintiff’s contention is sustained.
    1. Exhibit “F”: This agreement is dated September 25, 1893. The parties to it are the Langcliffe Coal Company, the Hudson company, and Brooks and Mears. It recites the “Brooks contract” (exhibit “A”), and the “Langcliffe contract” (exhibit “B”). ' It sets forth more fully why the land embraced in the Langcliffe contract was not included in the Brooks and Mears original mortgage;,and it proceeds to state that its intent is to constitute the Langcliffe land an additional security for the payment of the loan of $325,000. This agreement recites the oft-repeated clause as to the substitution of one mortgage for the other, and it sets forth a promise on the part of the Langcliffe Coal Company to pay the said loan at the rate of fifteen cents on each- ton mined. The agreement has in it a sixty-day default clause, and there is attached to it a schedule containing a full description of the Langcliffe property. The eighth paragraph of the agreement reads thus: “This agreement shall take effect as of the twentieth of April, 1892, and shall be deemed to be made as additional- security for the payment of said bond and mortgage of the parties of the third part (Brooks and Mears) and of said substituted bond and mortgage, and for the repayment of said advance, and shall pass as an incident of said bond and mortgage, and of said substituted bond and mortgage, or any transfer thereof.” The only promise made by Brooks and Mears in the agreement is that they will enter into a tonnage agreement with the Hudson company when requested to do so.
    2. Exhibit “G”: An agreement between Brooks and Mears and the Hudson company, dated September 25,1893, by which Brooks and Mears assign'and transfer to the Hudson company and its assigns the entire capital stock of the Langcliffe Coal Company, which was 3,000 shares. This- agreement contains many recitals similar in character to those in the preceding agreement, exhibit “F,” and it gives the Hudson company full power, in case of default, to sell or transfer the whole capital stock assigned as aforesaid; or, to take possession of the property and work the mines.
    On September 28, three days after the date of the above agreements, the Hudson company assigned the same to the Continental Trust Company. It is provided in the assignment that the trust company is not to assume “ any of the covenants or agreements of said agreement (exhibit ‘F’), on the part of the Improvement Company.” This means that the trust company will not undertake to transport the coal and furnish cars, etc.; that is, all obligations incident to the tonnage arrangements still rest on the Hudson company.
    On this date, September 28, 1893, what is the situation of the- Continental Trust Company in relation to the loan of $325,000? What is the nature of the securities it has within its control, and what remedies are open to it to enforce the repayment of the loan in case of default?
    1. The trust company has an assignment of the Brooks and Hears mortgage. This assignment was made in the preceding month of August. The mortgage contains the usual clauses as to default and provides the usual remedy for collection.
    2. The trust company has also exhibit “F,” one of the agreements signed September 25, .1893. This is the additional security consisting of the property of the Langeliffe Coal Company. By this agreement the trust company has its grasp on the Langeliffe property in addition to the Brooks and Hears property. What is the legal character of this agreement? An examination of it will show that it is in itself a complete legal instrument imposing upon the Langeliffe Coal Company a definite legal obligation, capable of enforcement by an adequate legal remedy. The default clause in the seventh paragraph of the agreement reads thus: “In case of default on the part of the party of the first part, its successors or assigns, in any of the obligations hereof on the part of it, them or any of them, and such default shall continue for the space of sixty days, the whole of said principal sum of three hundred and twenty-five thousand dollars, with all arrears of interest, shall and may, at the option of the party of the second part, its successors or assigns, become and be forthwith due and payable.” Without regard to this default clause and to the character of the agreement as an independent and separate instrument, it might be regarded in another light in view of the eighth paragraph of the agreement, which we have quoted in another place. By this paragraph the agreement is in effect attached to the Brooks and Mears mortgage; it is made to “ pass as an incident of said bond and mortgage, and of said substituted bond and mortgage, or any transfer thereof.” Why could not this agreement and the Brooks and Mears mortgage be treated as one obligation for the payment of the loan of $325,000? And why could not a judgment be obtained in scire facias proceedings which would cover the Langcliffe property as well as the Brooks and Mears property? It is not for us to decide now which one of three or four legal remedies would be the most effective. That should be left to the judgment of counsel. All we say at present is that we see no reason yet why plaintiff should come into a court of equity.
    3. In addition to the foregoing securities the trust company by exhibit “G” has in his grasp, as additional security for the same loan, the entire capital stock of the Langcliffe Coal Company, with summary power to dispose of the same. Under this agreement the trust company has more than one complete remedy incident to its ownership of the capital stock. The remedies are summary and quite drastic. In case-of default in any of the conditions contained in the Brooks and Mears bond and mortgage the holder of said stock may deal with it as if the holder were the “absolute beneficial owner thereof;” or, the stock may be sold or transferred for such price as the holder shall think fit; or, the holder “may enter into possession of the corporate property, or any part thereof and work said mines;” or, it may “as the owner of all the stock of said Langcliffe Coal Company, sell and realize the property of said company or any part of such property,” applying the proceeds “ to the payment of said bond and mortgage of the mortgagors, or of said substituted bond and mortgage.”
    It therefore clearly appears that from September 28, 1893, to March 23,1896, the securities in the hands of the trust company remained unchanged. It had the Brooks and Mears bond and mortgage; it had the Langclifl'e property as additional security; and, as further security, it had the entire capital stock of the Langcliffe Coal Company. If, during this period, there had been any default in the payment of the loan, either of principal or interest, the trust company had adequate and efficient legal remedies to enforce the payment of the loan. The date of March 23, 1896, was given by us above because it was at this time that the Langclifl'e Coal Company, Limited, substituted its bond and mortgage from the original bond and mortgage of Brooks and Mears. The new bond and mortgage were given direct to the Continental Trust Company, as stated by us already. The limited company had evidently been formed as early as 1893 (after September 28) because plaintiffs bill states that in 1893 and 1894 Brooks and Mears, by two deeds, had conveyed their interests in the lands embraced in the original mortgage, to the Langcliffe Coal Company, Limited.
    Confining our consideration of this case now to the liability of Brooks and Mears and their individual estates, it appears clear to us that when the bond and mortgage of the limited association were substituted for the original Brooks and Mears bond and mortgage, every vestige of individual liability on the part of Brooks and Mears was wiped out. There can be no question as to the soundness of this conclusion so far as the old bond and mortgage are concerned; nor can there be any question arising from the nature of the agreement, exhibit “ F,” because, so far as it touches the merits of plaintiff's contention this was the agreement of the Langcliffe Coal Company, a corporation, with the Hudson company. It is true that Brooks and Mears signed the agreement; but an examination of its provisions will show that whatever was therein promised to be done which might be of any benefit to the plaintiff was promised by the Langcliffe Coal Company, and not by Brooks and Mears. But, independently of this fact, we hold that the plaintiff has an adequate legal remedy by which all of its rights under this agreement might be enforced, as we have already stated.

      Therefore, so far as the present controversy relates to the individual liability of Brooks and Mears, there is nothing left but the agreement, exhibit “G,” by which the entire capital stock of the Langcliffe Coal Company was assigned to the Continental Trust Company, which means to the plaintiff in this case. A large part of plaintiff’s argument is devoted to this transaction. It is claimed that the plaintiff is a trustee for Brooks and Mears for the pledged stock; that the equities arising out of the relation of trustee and beneficiary cannot be adjusted in an action at law, and that this matter, being strictly cognizable in equity, draws to it and with it into a court of equity every other branch of the controversy between the parties. This agreement seems plausible, and under a proper state of facts would be convincing; but the facts of the present case destroy the effectiveness of the argument. It must be remembered that neither Brooks and Mears, nor anybody representing their interests, are demanding relief on account of any act of a trustee in connection with said capital stock. From September 28, 1893, the plaintiff, or its predecessor, has had the absolute power to dispose of the stock by sale or transfer at any price it pleased in case of default in the payment of the loan of 1325,000.
    And Brooks and Mears had given the power to the assignee of the stock, not only to sell or transfer the stock, but also, in case of default in the payment of the loan, to take possession óf the property, work the mines and to take over the corporate organization of the Langcliffe Coal Company. Has the Continental Trust Company, or the plaintiff, at any time attempted to enforce any of the ample legal remedies provided in the agreement, exhibit “G”? The precise date when the default in the payment of the loan first occurred cannot be ascertained clearly from the bill; yet, if several of the allegations of the bill are true, there was a default in the performance of some of the conditions of the various agreements quite early in the history of the transactions detailed in this case. It is stated that Brooks and Mears were in default. If that be the case, then the Continental Trust Company could have foreclosed the Brooks and Mears mortgage at some time during the period between August 15, 1893, the date of the assignment of said mortgage, and March 23,1896, the date of the substitution of the new for the old bond and mortgage. Was the Langcliffe Coal Company in default, say from September 28, 1893, the day of the assignment of the agreements, exhibits “F” and “G,” to the trust company, to the date of the giving of the new bond and mortgage in 1896? Then, and in that case, the trust company had a choice of legal remedies ■under said agreements. It had the right to take possession of the mines, or to sell the entire capital stock of the Langcliffe Coal Company, or to take the company and reorganize it. It is a significant fact that when the trust company in 1896 accepted the bond and mortgage of the limited association in lieu of the Brooks and Mears bond and mortgage, nothing was done to enforce the obligations contained in exhibits “F” and “G,” or to put the securities relating to the Langcliffe company’s property and capital stock in better or different shape. It may be that all the parties were satisfied with matters as they stood at that time; or, it may be that recognizing the uncertain value of the security of the Langcliffe property under exhibit “F,” because of the defect in the title, the trust company did not choose to make any attempt to realize on this security, until the defect was removed by obtaining the consent of the lessor of the Langcliffe property to the alienation of the same. Of course the same objection would not apply to the agreement relating to the capital stock, viz., exhibit “G.” At this point in the discussion and in connection with this phase of the case, we find it necessary to consider two certain writings executed after the date of the new bond and mortgage.
    Exhibit “L”: Agreement dated April 29, 1901. By this agreement, which recites the consent of the lessor of the Langcliffe property, the lease, etc., is assigned by the Langcliffe Coal Company to the Langcliffe Coal Company, Limited.
    Exhibit “M”: A deed, dated April 29, 1901, by which the Langcliffe Coal Company, Limited, conveys to the Hudson Coal Company all its properties, subject to the mortgage of the Continental Trust Company.
    Thus it appears that on April 29, 1901, the character of the Langcliffe property as a security was improved to the advantage of the trust company, and the trust company, at the date aforesaid, and up to the present time, has been and is in possession of three several securities for the payment of the same loan, with ample legal remedies for the enforcement of its claims. We cannot help commenting upon this unusual delay. Upon any default occurring between 1893 and 1896, the trust company cohid have proceeded on the Brooks and Mears bond and mortgage and on the other two securities. From 1896 to 1901 it could have proceeded on the substituted bond and mortgage and on either or both of the other securities; and from 1901 to 1908 the date of the filing of the bill, the trust company was in better shape than ever to pursue its legal remedies on all the securities. Instead of asserting its rights at the proper time on the law side of the court, it waits until the two principal parties in the case are dead, and now it comes into a court of equity asking for relief, after a delay of seven, twelve or fifteen years, as the case might be under the facts.
    Without considering the question of laches we hold that the demurrers filed by the respective executors of the Brooks and of the Mears estates must be sustained on two grounds: first, the plaintiff’s bill discloses no ground for equitable relief as against the estates of Brooks and Mears, the plaintiff having had at all times adequate remedies at law at its command; and second, the bill does not show any such liability on the part of Brooks and Mears as would require their estates to account as prayed for in the bill.
    We shall now proceed to consider another ground of demurrer, the same being assigned by each defendant, viz., the omission from the list of defendants of the New York, Susquehanna & Western Coal Company. In order to understand the force of this assignment we must refer again to some of the exhibits. Exhibit “A,” the first agreement between Brooks and Mears and the Hudson company, provided not only for the advance of 8325,000 to Brooks and Mears, but also for a coal and tonnage arrangement. Brooks and Mears were to sell and deliver to the Hudson company practically all the coal mined by them, and the Hudson company was to pay for the coal monthly a certain price per ton based upon the prices at tide water and to furnish a sufficient number of cars, etc. The bond and mortgage given by Brooks and Mears to secure the loan to them was to be paid in a certain way, viz., the Hudson company was to deduct fifteen cents from the price of each ton of coal bought by it and to apply the same on the mortgage debt. Exhibit “B” is a coal and tonnage contract between the Langcliffe Coal Company and the Hudson company, of the same character as exhibit “A,” except that it contains no reference to the mortgage. Under this contract the Hudson company may assign all its rights to a third party. There is a similar provision in exhibit “A.” An analysis of the two exhibits lead us to the conclusion that there was no legal difficulty in the way of one party holding the coal and tonnage contract and another party holding the bond and mortgage; and that is what happened in this case. The Continental Trust Company, in 1893, by assignment, exhibit “E,” became the owner of the bond and mortgage, exhibit “C,” the Hudson company still retaining its rights in the contract relating to the purchase and sale of the coal under exhibits “A ” and “B.” This was the situation on August 15, 1893, when the Hudson company assigned the Brooks and Mears bond and mortgage to the trust company.
    Later, on September 28, 1893, the Hudson company assigned to the trust company the two agreements, exhibits “F” and “G,” the one constituting the Langcliffe property as additional security for the loan, and the other constituting the capital stock of the Langcliffe Coal Company as additional security for the same purpose; but the trust company “shall not be deemed to assume any of the covenants or agreements of said agreement (exhibit 'F’) on the part of the Improvement (or Hudson) Company.” That is, the Hudson company still had the coal and tonnage contract.
    On December 4, 1893, according to the eleventh paragraph of plaintiff’s bill, the agreement itself not being given, the Hudson company conveyed to the New York, Susquehanna & Western Coal Company the coal and tonnage contract of April 20, 1892, and the latter company “assumed and undertook all the covenants and agreements” of the Hudson company. There is no reason why this could not be done. The Susquehanna company simply took the place of the Hudson company, and from December 4, 1893, the trust company was to receive its payments on the mortgage from the Susquehanna company. We cannot ascertain from plaintiff’s exhibit “N” who paid the various sums of money credited on the mortgage; but, from 1893 to November 18, 1897, the Susquehanna company was liable to the trust company for the payments on the mortgage. During this period the Susquehanna company was the assignee of the Hudson company’s coal contract. At the end of this period, viz., on November 18, 1897, the Langcliffe Coal Company, Limited, entered into a direct contract with the Susquehanna company as to the coal. It was the same kind of a contract as that of the Hudson company, and is exhibit “ J ”; and it provided for the payment of the mortgage in the same manner as in the other agreements. The Susquehanna company continued to occupy the same relation with the coal properties until February 13, 1901. At this time the agreement, exhibit “K,” was signed by the limited company and the Susquehanna company. This agreement canceled the original coal and tonnage contract between the Hudson company and Brooks and Mears. We do not see that the plaintiff has just ground of complaint on this score; because, in terminating the old contract, it was provided that the agreement should in no wise affect the lien of the mortgage given by the limited company, nor in any way impair its obligation as to the payment of the fifteen cents per ton on all coal mined. Indeed, we find that from the beginning, at every step in the transactions between the parties, the trust company’s mortgage has been protected, so far as that could be done by written agreements and conveyances. Even the last exhibit we shall refer to, which is a conveyance to the Hudson Coal Company of all the properties of the Langcliffe Coal Company, Limited, executed April 29, 1901 (exhibit “M”), states in apt terms that the conveyance is made and received especially subject to the mortgage of the trust company.

      We do not understand why the Susquehanna company has not been made a defendant in this case. There is as much reason for making this company a defendant as there is for making the Hudson company a defendant. Each bears the same relation as the other does to the trust company and its mortgage. The Hudson company agreed to buy and sell the coal from the Langcliffe properties and to pay fifteen cents per ton on the mortgage. The Susquehanna company agreed to do the same thing. We can gather from exhibit “N” that the only thing done by the Hudson company under its coal contract, was to advance the loan of 8325,000, because the first credit given on the mortgage was in 1896. And the money paid then must have been paid by the Susquehanna company. It was the latter company that bought and sold the coal for many years, and the accounts of this company and its relation to the transactions in this case, if at all the subject of investigation in equity, are just as important as those of any other defendant.
    We, therefore, hold that the New York, Susquehanna & Western Company should have been a defendant in this case, and that the demurrer on this point should be sustained. It may be that the foregoing discussion is useless, in view of the opinion we hold as to the merit of the whole bill.
    We shall now consider the other ground of demurrer assigned by the three defendant companies. It is, in substance, that the plaintiff has an adequate remedy at law. What are the prayers of the plaintiff in its bill? What are the particular forms of equitable relief it demands?
    1. That the amount due on the mortgage of the Langcliffe Coal Company, Limited, be ascertained and that said amount be declared to be a first lien upon the property described in said mortgage.
    2. That the rights of the complainant in the other property not specifically embraced in said mortgage be ascertained and decreed.
    3. That the executors of the estate of Brooks and Mears, the Langcliffe Coal Company, Limited, the Langcliffe Coal Company, and the Hudson Coal Company, make discovery of the amount of coal mined from the several properties during certain periods, and that they .account for the same.
    4. That a receiver be appointed to take charge of the several properties.
    5. That the court decree a sale of the mortgaged premises and of the other property.
    The foregoing are the forms of relief prayed for by complainant. We have already discussed at considerable length the proposition that the plaintiff has an adequate remedy at law. All that we have stated is applicable to the demurrers now under consideration; but we shall briefly continue the discussion in the light of some well-known principles of law.
    ,1. We have no power to decree the sale of mortgaged property.
    •The leading case of Ashhurst et al. v. Montour Iron Co., 35 Pa. 30, decides this. We quote from the syllabus of this case: “The courts of Pennsylvania have no jurisdiction in equity, to decree a sale of mortgaged premises, at the instance of the mortgagee although the mortgagor may be a corporation, and the mortgage given in trust to secure its bonds. They might require jurisdiction in a suit by the cestuis que trust against the mortgagees, and having thus assumed jurisdiction of the subject-matter, proceed to decree a sale for the benefit of the bondholders; but they cannot do so at the suit of the mortgagees against the mortgagor.”
    Nor is the doctrine of the Ashhurst case changed by Win-ton’s App., 97 Pa. 385, where a supplemental bill was entertained in aid of a final decree in equity, to compel the carrying out of the decree and to give full and complete effect to it; and where, under exceptional circumstances, a sale of mortgaged premises was ordered.
    A case very much like the contract and bond and mortgage involved in the case at bar is that disclosed in the New York & Scranton Construction Company v. Winton, 208 Pa. 467. This case indicates to the plaintiff the remedy open to it on its principal security, viz., a scire facias sur mortgage.
    2. The plaintiff has no standing because of the prayers for discovery.

      The discovery sought is not in aid of any action pending, or of any judgment or decree, or of any execution. On this point we refer particularly to Black v. Bohlen, 175 Pa. 491, and to Bank v. Kern, 193 Pa. 59, and Holland v. Hallahan, 211 Pa. 223.
    3. There is no question of trust, or the rights of a trustee or of a cestui que trust, or of an account, in the case.
    The nearest suggestion of such matters is found in the ownership by the plaintiff of the entire capital stock of the Langcliffe Coal Company; but, as we have already stated, the plaintiff has now, and has had for years, a choice of summary legal remedies in relation to this stock.
    After a careful consideration of plaintiff’s bill of complaint and of all the exhibits in the case, we are of the opinion that no such facts have been presented as would justify the interference of a court of equity. We therefore make the following order:
    Now, June 28, 1909, after argument and on due consideration, the demurrer of each of the defendants is sustained and plaintiff’s bill of complaint is dismissed at plaintiff’s costs.

      Error assigned was decree dismissing bill.

      Frank P. Prichard, with him William J. Hand and Leventritt, Cook and Nathan, for appellant.
    — The fact that the jurisdiction in equity is clear and that it is more convenient than the remedy at law is sufficient to sustain the bill: Cook v. Carpenter, 212 Pa. 165.
    When a cause is once within the grasp of a court of equity it has no need to call in the aid of a court of law: Odd Fellows Sav. Bank’s App., 123 Pa. 356; Winton’s App., 97 Pa. 385.

      John P. Kelly for estate of Reese G. Brooks, deceased, and H. C. Reynolds, for estate of John A. Mears, deceased, appellees.
    — There is a full, adequate and complete remedy at law: Ashhurst v. Iron Co., 35 Pa. 30.

      James H. Torrey, of Welles & Torrey, for Langcliffe Coal Company, Langcliffe Coal Company, Limited, and the Hudson Coal Company.
    — The courts of Pennsylvania have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee: Ashhurst v. Iron Co., 35 Pa. 30; Bradley v. Railroad Co., 36 Pa. 141; Winton’s App., 97 Pa. 385.
   Opinion by

Mr. Justice Mestrezat,

March 28, 1910:

In the elaborate opinion filed by the learned judge of the common pleas, he has analyzed and considered the numerous agreements of the many parties involved in this controversy, and has conclusively demonstrated that the plaintiff company has an adequate and efficient remedy at law to enforce the repayment of its loan.

On March 23, 1896, the Langcliffe Coal Company, Limited, substituted its bond and mortgage for the original bond and mortgage of Brooks and Mears which were given to secure the loan of 1325,000. The mortgage is to secure the same debt, and includes the same land as the Brooks and Mears mortgage. It contains the usual default clauses providing a remedy for collection, and was duly assigned to the plaintiff. By the agreement of September 25, 1893, exhibit “F,” the property of the Langcliffe Coal Company was made additional security for the payment of the original and substituted bond and mortgage, and became effective as of April 20, 1892, the date of the Brooks and Mears agreement and mortgage. The plaintiff holds this agreement, the seventh paragraph of which provides: “In case of default on the part of the party of the first part, its successors or assigns, in any of the obligations hereof on the part of it, them or any of them, and such default shall continue for the space of sixty days, the whole of said principal sum of three hundred and twenty-five thousand dollars, with all arrears of interest, shall and may, at the option of the party of the second part, its successors or assigns, become and be forthwith due and payable.” By virtue of the agreement of September 25, 1893, exhibit “G,” the plaintiff company also holds as additional security for its loan the whole of the capital stock of the Langcliffe Coal Company. In case of default in any of the conditions of the Brooks and Mears bond and mortgage or in the substituted bond and mortgage, the agreement provides that the holder of the stock may deal with it as if he were the beneficial owner, or he may sell it for such price as he thinks fit, or may enter into possession of the corporate property and work the mines, or, as the owner of all the stock, may sell the property of the company, applying the proceeds, less costs and expenses, to the payment of the bond and mortgage.

These are the securities held since 1896, by the plaintiff for the repayment of the loan. If, as the plaintiff company alleges, default has been made in the payment of the principal and interest of the loan, its remedies at law for enforcing payment have at all times been adequate and effective without invoking the aid of a court of equity. The mere fact that a creditor has several securities for his debt does not confer jurisdiction on equity to enforce payment of the claim. A scire facias is the proper remedy for foreclosing the substituted mortgage of the Langeliffe Coal Company, Limited. An appropriate action at law will lie on the agreement of September 25, 1893, to subject the property of the Langeliffe Coal Company, not included in the Brooks and Mears mortgage, to payment of the loan; and it is suggested by the learned judge of the common pleas that the agreement and mortgage may be treated as one obligation for the payment of the loan, and that a judgment on the scire facias would cover the Langeliffe Coal Company property as well as the Brooks and Mears property. The agreement of September 25, 1893, it will be observed, provides numerous and effective remedies for realizing on the capital stock of the Langeliffe Coal Company, and affords an opportunity for controlling the company itself.

The sale of the Langeliffe Coal Company’s property to the present owner does not affect the plaintiff company if, as it avers, the purchaser took title to the property with notice “of all the agreements and indentures recited in this bill, and of all the facts hereinbefore set out.” The plaintiff was not affected by the agreement, exhibit “K,” canceling the original contract between the Wilkes-Barre & Hudson River Improvement Company and Brooks and Mears, as it provided that the agreement should in no wise affect the lien of the mortgage given by the Langcliffe Coal Company, Limited, nor affect or impair in any manner its obligation to pay fifteen cents per ton for all coal mined. We can see no necessity for an accounting to enable the plaintiff to realize on its securities. When the mortgagee issues a scire facias on the mortgage, the amount paid and the amount yet due thereon can,, as in the ordinary case, be readily ascertained. As the bill shows no ground for an accounting, the prayer for discovery, incidental to the accounting, must be .denied. If plaintiff should find that it needs discovery in aid of its action at law, a court of equity will lend its assistance for the purpose.

The exhaustive opinion filed by the trial court renders further discussion unnecessary.

Decree affirmed.


author: Mil Justice Mestrezat,

text:
    New York Trust Company, Appellant, v. Langcliffe Coal Company
    (No. 2).

      Practice, C. P. — Appeals—Affidavit of defense — Judgments for want of sufficient affidavit of defense.

    1. A lower court will not be reversed ón appeal for discharging a rule for judgment for want of a sufficient affidavit of defense unless all the essential facts are admitted or not denied, and the action of the court in refusing judgment is based on plain error in law.
    2. Where there are several important questions of fact bearing on the relations and obligations of the parties not fully developed in the statement and affidavit of defense, the case should go to the jury.
    Argued 23, 1910.
    Appeal, No. 386,
    Jan. T., 1909, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1909, No. 1,702, discharging rule for judgment for want of a sufficient affidavit of defense.in case of The New York Trust Company of the City of New York v. The Langcliffe Coal Company, The Langcliffe Coal Company, Limited, and The Hudson Coal Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Edwards, P. T.
    The opinion of the Supreme Court states the facts.

      Error assigned was discharge of rule for judgment for want of a sufficient affidavit of defense.

      Frank P. Prichard, with him William J. Hand and Leventritt, Cook and Nathan, for appellant.

      John P. Kelly and James H. Torrey, for the Hudson Coal Company, appellee.
   Opinion by

Mil Justice Mestrezat,

March 28, 1910:

This is a scire facias on a mortgage, and the plaintiff has taken an appeal from the order of the court below discharging a rule for judgment for want of a sufficient affidavit of defense. In view of the oft-repeated desire of the appellant company in this and the equity case for a speedy disposition of the controversy between the parties, it is to be regretted that it did not concur in the suggestipgoPf the learned trial judge that “this case can be more satisfactorily disposed of by a trial than by a rule for judgment for the want of a sufficient affidavit of defense.” There are several important questions of fact bearing on the relations and obligations of the parties not fully developed in the statement and affidavit of defense, and hence the case should go to a jury. We will not reverse the court below for discharging a rule for want of a sufficient affidavit of defense unless all the essential facts are admitted or not denied, and the action of the court in refusing judgment is based on plain error in law. We so construed the Act of April 18, 1874, P. L. 64, authorizing appeals in such cases, in Griffith v. Sitgreaves, 81* Pa. 378, where it is said (p. 382): “The act of assembly authorizing writs of error to be taken when a court of common pleas refuses to enter judgment on the ground of the sufficiency of an affidavit of defense was intended to reach only clear cases of error in law, and thus to prevent the delay of a trial. . . . In doubtful cases, and especially in those requiring broad inquiry into facts, where the court refuses judgment, the matter in controversy should go to the jury, as the proper tribunal to decide the cause under proper instructions from the court.” We do not encourage an appeal in this class of cases as it usually results in delay in the disposition of the cause and adds materially to the costs and expenses. As another appeal may be taken after the cause is tried in the court below and the facts are fully developed, we will not now discuss the merits of the case.

The order of the court below refusing judgment for want of a sufficient affidavit of defense is affirmed.


author: Mr. Justice Stewart,

text:
    Economy Powder Company v. Boyer, Appellant.

      Corporations — Stock—Company stock — Practice, C. P. — Case for the jury.

    In a suit against the president of a corporation to collect an alleged balance due on account of stock purchases, where the only question at issue is whether the defendant acquired all or only part of his holdings of stock from the company, the case is for the jury where, against the defendant’s contention that part of his holdings were assigned to him by original allottees, there are shown exhibits from the books of the company prepared by him or from his data; his own declarations, testified to by several witnesses, importing that the stock was company stock; and the inference to be drawn from an admitted payment which, with other payments claimed by defendant but disputed by plaintiff, would make as a total the exact price of all his holdings at par.
    Argued Feb. 28, 1910.
    Appeal, No. 19,
    January T., 1910, by defendant, from judgment of C. P. Berks Co., August T., 1906, No. 68, on verdict for plaintiff in case of Economy Powder Company, to the use of Samuel M. Heim, Assignee, v. Frank J. Boyer.
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for balance of subscription to stock. Before Stevens, J.
    The opinion of the Supreme, Court states the case.
    Verdict for plaintiff and judgment thereon for $2,500, with interest.

      Error assigned was the discharging of a rule for judgment non obstante veredicto.

      Harry F. Kantner, with him S. M. Meredith, for appellant.

      Cyrus G. Derr, with him Walter B. Freed, for appellee.
   Opinion by

Mr. Justice Stewart,

March 28, 19.10:

The Economy Powder Company issued its capital stock at $10.00 per share. The defendant, who was a director of the company, and some time its president, is the holder of 500 shares. If he acquired all this stock from the company, he is indebted to the company on this account in the sum of $2,500; since all he claims to have paid the company on account of stock is $2,500. The plaintiff, assignee for the benefit of creditors, charges that the whole of the 500 shares was company stock, and this action was brought to collect from the defendant the difference, which the assignee claims as the balance due on account of the stock purchase. In answer to this demand, the defendant says that he acquired only 200 shares of the stock from the company, and that the remaining 300 shares of his holdings were assigned to him by the promoters of the company to whom it had been allotted in the original organization. This presents the only question of fact there was in the case. The several questions of law so elaborately discussed on this appeal are without relevancy. No question of estoppel arises; nor is it material whether others were induced to become purchasers of stock by the defendant’s representation as to what he had paid for his own holdings. The only question was, did or did not the defendant acquire all his étock from the company? If he did, he still owes for 250 shares; if he acquired it as he said he did, he owes the company nothing. The points submitted to the court, with a single exception to which we shall refer, had regard to legal propositions which were outside the case. They were nevertheless correctly answered, and the assignments which relate to these call for no discussion. The defendant asked for binding instructions. These being refused, a verdict was returned for the plaintiff, which the court refused to disturb on a motion for judgment non obstante. The appeal is resolved to a single question: Was there sufficient evidence to carry the case to the jury? Unquestionably there was. Against the defendant’s contention there were the books of the company containing exhibits and statements prepared by the defendant, or caused to be prepared by him from data furnished by himself, supporting an antagonistic inference; his own declarations testified to by several witnesses clearly importing as many distinct admissions that the stock he held was company stock for which he had paid $10.00 a share. And more persuasive than all, an admitted payment to the company on June 3,1904, of $1,972.17, which, with the earlier payments for which he claimed credit, but which were disputed,, would make an exact total of $5,000, the price of 500 shares. The evidence required a submission to the jury. There is no complaint as to the manner of its submission.

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


author: Mr. Justice Moschzisker,

text:
    Fisher v. Delaware, Lackawanna & Western Railroad Company, Appellant.
    Practice, C. P. — Trial—Statements of counsel —Comments on testimony —Withdrawal of juror — Eminent domain — Railroads.
    1. Where on appeal from the award of a jury of view a real estate expert witness for defendant is asked on cross-examination as to an alleged statement to third parties to the effect that $4,500 was proper compensation but does not admit the remark and at no time states that such a sum was the amount awarded by the viewers, a declaration of counsel for the plaintiff in his closing address that the credibility of such witness is impeached by his admission that “he might have said that the sum of $4,500 awarded by the viewers was not excessive” demands the withdrawal of a juror and the continuance of the' case, and the harm done is not remedied by the judge warning the jury to disregard the counsel’s reference to the award of the viewers.

      Practice, C. P. — Trial—Charge—Refusal of points — Rules of court.

    2. Where the thought intended in a point submitted is applicable to the case and not sufficiently covered in the charge, the point ought to be given a specific answer, but where the point states material facts which are not sustained by any evidence upon the record and there is a rule of the lower court that all requests must be so framed that they can be answered by a simple affirmation or negation, a refusal to affirm the point as drawn will be sustained.
    Argued March 8, 1910.
    Appeals, Nos. 279 and 280,
    Jan. T., 1909, by defendant, from judgments of C. P. Monroe Co., Dec. T., 1907, Nos. 15 and 16, on verdicts for plaintiff in cases of James S. Fisher v. Delaware, Lackawanna & Western Railroad Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Mosoiizisker, JJ.
    Reversed.
    Appeal from the award of a jury of view. Before Staples, P. J.
    The opinion of the Supreme Court states the case.
    Verdicts for plaintiff amounting to 14,226.25 and judgment thereon.

      Errors assigned were in refusing to withdraw a juror and refusal of defendant’s point.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellant.
    — It was improper for counsel to make the statement complained of in the assignments of error: Hyslop v. Crozier, 1 Miles, 267; Shaeffer v. Kreitzer, 6 Binney, 430; Wagner v. Hazle Twp., 215 Pa. 219; Hollis v. Glass Co., 220 Pa. 49; Quinn v. Rapid Transit Co., 224 Pa. 162; Reese v. Hershey, 163 Pa. 253; Hollinger v. Ry. Co., 225 Pa. 424; Ruddy v. Ruddy, 5 Pa. C. C. Rep. 544; Hasson v. R. R. Co., 21 W. N. C. 96; Hamory v. R. R. Co., 222 Pa. 631.

      F. B. Holmes, with him R. L. Burnett, for appellee.
    — Fair and honest comment on the inconsistencies of any witness who is brought forward by a party as worthy of belief is not forbidden: Dougherty v. Pittsburg Rys. Co., 213 Pa. 346; Fisher v. Penna. Co., 34 Pa. Superior Ct. 500; Cook v. Erie Elec. Motor Co., 225 Pa. 91.
    The common pleas has a right to make rules regulating a request for instructions on points: Haines v. Stauffer, 13 Pa. 541.
   Opinion by

Mr. Justice Moschzisker,

March 28, 1910:

A jury of view awarded the plaintiff $4,570, damages for land condemned by the defendant to widen and straighten its railroad. An appeal was taken to the common pleas. On the trial of this appeal a real estate expert witness for the defendant placed the damages at $1,500. On cross-examination he was asked by counsel for the plaintiff as to a supposed conversation with certain third persons in which he was alleged to have stated that $4,500 was proper compensation for the land taken. The witness did not admit the imputation as to the larger figures, and at no time stated that he understood such a sum to be the amount awarded by the viewers. In his closing address to the jury counsel for plaintiff, while commenting upon this witness, declared that his credibility had been impeached by reason of the fact he had admitted that in discussing the award of the viewers with certain third persons “he might have said that the sum of $4,500 awarded by the viewers was not excessive.” Counsel for the defendant immediately took exception to these remarks on the ground that they constituted a statement to the jury of the amount of the award of the viewers; and a motion was made to withdraw a juror and continue the case, which was refused and an exception granted. The first three assignments of error go to this ruling, and to the remarks of the trial judge in warning the jury not to be influenced by counsel’s reference to the award of the viewers.

When a case is heard on an appeal from an award of viewers the trial must be had in the same manner as if the cause had never been passed upon by another tribunal, and the jurors should not be subjected to the influence which the knowledge of a prior award of viewers would be almost sure to have upon their minds. When counsel offends against this rule it must be regarded as “an invitation to find a verdict upon false grounds,” and on motion the trial judge ought to promptly withdraw a juror. This is within the principle laid down in our cases at an early date and consistently followed to the present time: Shaeffer v. Kreitzer, 6 Binney, 430; Wagner v. Hazle Township, 215 Pa. 219; Hollis v. Glass Co., 220 Pa. 49; Quinn v. P. R. T. Co., 224 Pa. 162; Hollinger v. Rys. Co., 225 Pa. 419. There is no way of telling whether or not the effort of the trial judge to efface the harmful effect of counsel’s .remarks was successful. It may well be, in view of the fact that the verdict rendered closely approximates the award of the viewers, that the effort in this behalf merely accentuated the harm done. In the appropriate language of Chief Justice Tilghman in Shaeffer v. Kreitzer, supra: “It may seem at first view to be a matter not worth contending for, because the jury was told that the report ought not to have the, least weight as evidence. But to those who have had experience in jury trials, it will be evident that the principle involved in this point is of considerable importance. Impressions once made are not easily erased, and when the jury have been permitted to hear, that men for whose character they entertain a respect have decided in a certain way, it will be very apt to influence their own decision, in spite of all the caution they may receive from the court.” We are of opinion that error was committed in the refusal to withdraw a juror and continue the cause, which was not eured by the trial judge’s explanation to the jury. ■

The only other .assignment which requires consideration is one to the effect that the court erred in refusing to affirm defendant’s point: “For the original appropriation of the strip of land forty feet wide, and all damages resulting to the'Fisher property by reason of the appropriation and using thereof for railroad purposes, the owner- of the land has been fully compensated and the injury to the said property, by reason of any use of said original strip cannot be considered by the jury in this action.” Where a court is requested, in apt and proper time, to answer a point containing instructions which are correct in form and substance and applicable to the law and facts of the case, it ought to give a specific answer, unless the matter has been substantially covered in the general charge. The thought intended in the point submitted was applicable to the case and not sufficiently covered in the charge, but we fail to find any evidence upon the record to show that the original appropriation was of a strip of land forty feet wide, or to give us any light upon the payment of damages. In view of the rule of the court below that all requests must be so framed that they can be answered by a simple affirmation or negation, we cannot say that there was error in the refusal to affirm the point as drawn.

The first three assignments of error are sustained and the judgment is reversed with a venire facias de novo.


author: Mr. Justice Elkin,

text:
    Delaware, Lackawanna & Western Railroad Company v. Water Power & Supply Company, Appellant.

      Contracts — Undisclosed intention — Covenants.
    An undisclosed purpose or intention of one party to a contract, not embodied in the contract, and not communicated to the other party, cannot affect the rights or obligations of the contracting parties under their covenants in an instrument in writing.
    Argued March 7, 1910.
    Appeal, No. 85,
    Jan. T., 1909, by defendants, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 17, on verdict by direction of the court in case of The Delaware, Lackawanna & Western Railroad Company v. The Monroe County Water Power & Supply Company, Van C. Peters and W. S. Shafer.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a written contract. Before Staples, P. J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiffs for $3,991.71. Defendants appealed.

      Errors assigned were in refusing to enter judgment for defendants non obstante veredicto and in rejecting the offer of the defendants to show the interest which the defendants had in the retaining wall and backing and the reason for having it erected and the fill made.

      Harvey Huffman, of Eilenberger & Huffman, with him Shull & Shull, for appellants.

      A. Mitchell Palmer, with him C. R. Bensinger, for appellees.
   Opinion by

Mr. Justice Elkin,

March 28, 1910:

This action is based on a written contract and the obligations of the contracting parties under that agreement were fully considered by this court when the case was here before in Railroad Company v. Power and Supply. Company, 221 Pa. 387. It was there held that, “When the work was done to the satisfaction of the railroad company, the party at whose instance and for whose protection it was done, and accepted by it in full compliance with the contractual obligation of the power company, theré was substantial performance of the contract and the right to recover attached.” This was intended to be and was a construction of the covenants entered into by the parties. At the first trial the learned court below gave binding instructions for defendants on the ground that there could be no recovery for part performance of an entire contract, or where there had been failure to complete in strict compliance with the specifications and requirements of the railroad company. The judgment was reversed on the ground that there had been substantial compliance with the terms of the contract when the work was approved by the inspector authorized under the terms of the contract to do so and when it was accepted by the railroad company in full compliance with the contractual obligation of the power company. When the record was remitted the power company filed a supplemental affidavit of defense and at the second trial undertook to show that it had an interest in the retaining wall and fill other than the protection of the embankment and right of way of the railroad company. This position would seem to be in flat contradiction of the admissions in the original affidavit of defense, the theory upon which the case was first tried, and the conceded facts stated in the paper-books when the case was here before on review. Whether it is ever proper to permit a defense absolutely contradictory in character to be set up in the court below after a reversal here, to say the least is doubtful, but as we view this record it is not necessary to pass upon this question of pleading and practice in the present case. The offer of testimony to show that before the erection of the power plant was commenced, and prior to the contracts with the railroad company, it was the purpose and intention of the power company to erect and maintain a retaining wall with earth backing was properly excluded without reference to the question whether this was in contradiction of the original affidavit of defense and conceded facts at the first trial or not. An undisclosed purpose or intention of the power company, not embodied in the contract, and not communicated to the railroad company, could in no way affect the rights or obligations of the contracting parties under their covenants in an instrument in writing. When the case was here before we construed the contract, and there is nothing in this record to warrant the court in giving a different construction to it now.

Assignments of error overruled and judgment affirmed.


text:
    McDyer v. Eastern Pennsylvania Railways Company, Appellant.

      Negligence — Street railways — Contributory negligence — Oblique angled collision — Vehicles—Milk dealer.

    1. In an action to recover damages for the death of a milkman who was struck by a trolley car while attempting between intersecting streets to cross from one side of a street to the other at an oblique angle over trolley tracks in the middle of the street, where the testimony of the son of the deceased, who was with him in the wagon, is that immediately before crossing the track they stopped about three feet from the nearest rail and looked and listened but did not see or hear a car; that they then started across the tracks very slowly; and that when the horse had cleared the tracks and about one minute after they had stopped and looked, a car ran into the rear wheel of the wagon, throwing deceased out and upsetting the wagon, pushing it possibly sixty or 100 feet; and where witnesses for the plaintiff testify that the car was going very fast, going from twenty-five to thirty-five miles an hour, that it was about 400 feet away when the horse was on the track, and a witness for the defense testifies that one could see in the direction from which the car approached at least 725 feet, the questions of negligence and contributory negligence are for the jury.

      Practice, C. P. — Evidence—Motion to strike out testimony — Trial— Physician — Medical license — Registration—Expert testimony — Opinion based on conflicting testimony — A ssignments of error — Instructions.
    2. After testimony has been received without objection, the refusal to strike it out is not reviewable. In such a case the only course is to request the court to instruct the jury to disregard the testimony and upon a refusal to assign error.
    3. Where a physician, witness for plaintiff, states on cross-examination that he is licensed and duly registered in Pennsylvania and his testimony is admitted without objection, and thereafter counsel for defendant introduces evidence to show he is not a licentiate, followed by a motion to strike out all his testimony, the refusal of such a motion is not reviewable.
    4. A doctor cannot be asked to express a professional opinion as to the cause of death based on the hearing of testimony which is conflicting in many essentials.
    5. An expert witness after being first acquainted with the whole of the particular part upon which he is to pronounce, may be asked to express an opinion upon any defined portion of the testimony, which is not contradictory in itself, and the truth of which is expressly assumed; but he may not be asked to first ascertain and determine the conflicting elements, and then to express an opinion upon his conclusion.

      Practice, C. P. — Evidence—Earnings—Husband and, wife.

    6. The question, “What were the average net earnings of deceased in a year during the time he was engaged in the milk business, per year, if you know?” addressed to the wife of the deceased, is relevant and competent, although the testimony sought to be elicited, standing alone, would not be sufficient to base an estimate of damages upon.

      Practice, C. P. —Trial—Charge—Abstracts from charge.

    7. Abstracts from the judge’s charge must be read in connection with the charge as a whole.
    Argued March 7, 1910.
    Appeal, No. 192,
    Jan. T., 1909, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1908, No. 28, on verdict for plaintiff in case of Mary McDyer v. Eastern Pennsylvania Railways Company.
    Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries resulting in death. Before Heydt, P. J.
    Verdict and judgment for plaintiff for $6,000. Defendant appealed.
    The opinion of the Supreme Court states the case.

      Errors assigned were in refusing to strike out testimony; in refusing to permit certain physicians called by the defense to testify as experts; and to portions of the charge of the court.

      B. II. Koch, with him Frederick Bertolette, for appellant. — -
    The testimony of the doctors called based upon a knowledge of all the medical testimony in the case was clearly admissible: Good v. Good, 1 Mona. 718; Yardley v. Cuthbertson, 108 Pa. 395; Olmstead v. Gere, 100 Pa. 127; Burkholder v. Tyson, 1 Berks, 37.
    The deceased was bound to look until he got to the rail, and to keep on looking: Ehrisman v. Ry. Co., 150 Pa. 180; Omslaer v. Traction Co., 168 Pa. 519; Burke v. Traction Co., 198 Pa. 497; Boring v. Traction Co., 211 Pa. 594; Timler v. Transit Co., 214 Pa. 475; Kannenberg v. Traction Co., 215 Pa. 555; Houston v. Traction Co., 28 Pa. Superior Ct. 374; Sontum v. Railway & Light Co., 226 Pa. 230; Smathers v. Ry. Co., 226 Pa. 212; McKee v. Harrisburg Traction Co., 211 Pa. 47.
    Profits derived from an investment or the management of a business enterprise are not earnings: Goodhart v. R. R. Co., 177 Pa. 1; Miller v. Gas Co., 206 Pa. 254; Wallace v. R. R. Co., 195 Pa. 127.

      E. O. Nothstein, with him Wm. G. Freyman, for appellee.—
    The refusal of a motion to strike out evidence received without objection is not re viewable: Yeager & German v. Weaver, 64 Pa. 425; Montgomery v. Cunningham, 104 Pa. 349.
    The case was for the jury: Boggs v. Railway Co., 216 Pa. 314; Mortimer v. Traction Co., 216 Pa. 326; Hamilton v. Traction Co., 201 Pa. 351; Woelfel v. Railway Co., 183 Pa. 213; Reilley v. Traction Co., 176 Pa. 335; Holt v. Railroad Co., 206 Pa. 356; Kroesen v. Ry. Co., 198 Pa. 26.
    Where loss of earning power is one of the principal items of damages the evidence presented should be sufficiently explicit to enable the jury to form an intelligent judgment: Wallace v. Penna. Co., 219 Pa. 327.
   Opinion by

Mr. Justice Moschzisker,

March 28, 1910:

Mary McDyer, widow of James McDyer, recovered a verdiet for an injury to her husband resulting in his death al leged to have been caused by the negligence of the defendant company. The defendant has appealed.

James McDyer was a milk dealer: On the day of the accident he was driving a one-horse wagon, and was accompanied by his son, a lad of seventeen. He had served a customer on the south side of a certain street, in the middle of which was a trolley line. He drove a short distance and before reaching the next intersecting street attempted to cross the trolley tracks at an oblique angle in order to get on the opposite side to serve another customer. According to the testimony of the son, immediately before crossing they stopped about three feet from the nearest rail and looked up and down the trolley line; he was listening, but did not see or hear any car; they then started across the tracks “very slowly”; when the horse had cleared the tracks and the wagon was between them, a car ran into the rear wheel; he says it was about one minute from the time they stopped and looked until they were struck by the car. The wagon was upset and pushed possibly sixty to 100 feet, McDyer being thrown out and so injured that he died about two and one-half months thereafter. Each side produced a number of witnesses, and there was much conflicting testimony, but the plaintiff’s witnesses in a general way bear out the story as we have given it. One witness for the plaintiff stated that the car was going very fast; and another that just as the team crossed the track he saw the top of the car over the crest of the hill, and that it came at a rate between twenty-five and thirty-five miles an hour. Another witness stated that the car was about 400 feet away when the horse was on the track; and a witness for the defense testified that one could see in the direction from which the car approached at least 725 feet. On this state of facts it cannot be said as a matter of law that the motorman was free from negligence, or that McDyer was guilty of contributory negligence. Both of these points were for the jury, and were properly submitted in a comprehensive charge. McDyer was not bound to stop before crossing the track, but he did so; and we have positive testimony that he looked at a point about three feet from the nearest rail, and that his companion listened. In the absence of testimony to the contrary, the deceased is entitled to the presumption that he continued to exercise care by looking and listening; and whether or not this presumption was overcome would be for the jury to decide on all the evidence in the case. The only other person in the wagon was produced as a witness and could have been cross-examined on this point had counsel for the defense so desired. This is not a clear case where we can say that the story told by all of the plaintiffs witnesses is impossible and the car must have been in sight when McDyer entered upon the track. A car traveling at the rate of fifteen miles an hour will cover twenty-two feet in one second: Piatt v. Pittsburg Rys. Co., 219 Pa. 583. Here we have testimony that the car was traveling at least thirty miles an hour, which would be forty-four feet in one second, or over 800 feet in twenty seconds. That McDyer had to drive slowly and with care is made apparent by the testimony, “because the rails and sills were so high it would smash your wagon to pieces if you drove fast.” Under these circumstances we cannot say that he was obliged to give his exclusive attention to the possible approach of a trolley car which was not in sight when he started to cross the tracks. Nor can we say that he must have cleared the tracks in twenty seconds or less. On the other hand, we have the testimony produced by the defendant that the trolley car could. be stopped within the distance of sixty feet, and that there was a clear view on the track of over 700 feet. On the testimony as a whole the jury may have concluded that there was no car in sight when he first entered the tracks, or that the car was then at least 700 feet away; that the motorman must have seen the wagon, and had ample time to stop if he had kept his car under proper control. If so, they had the right to find that the motorman was guilty of negligence, and that McDyer was not guilty of contributory negligence.

Much of the argument of counsel for the appellant goes to the weight of the evidence on the various points involved. Whether or not the jury properly weighed the evidence should have been submitted to the court below on a motion for a new trial; and this, so far as the record in the paper-book reveals, was not done.

It is complained that the court erred in overruling defendant’s objection to the question addressed to the plaintiff : “ What were the average net earnings of Mr. McDyer in a year during the time he was engaged in the milk business, per year, if you know? ” We see no error in the ruling. Although the testimony sought to be elicited, standing alone, would not have been sufficient to base an estimate of damages upon, yet the question itself was clearly relevant and competent, and the witness was in a position to give the desired information. As this is the only assignment going to the sufficiency of the evidence on the question of the proof of the damages, we will not further discuss that branch of the case.

On cross-examination as to his qualifications as a physician, Dr. Gallagher, a witness for the plaintiff, stated that he had been licensed and duly registered in Pennsylvania and his testimony was admitted without objection. He stated that he was the attending physician, and gave the details as to McDyer’s condition and ailments, expressing the opinion that the patient had died as a result of his injuries from the accident. After this, counsel for the defendant produced evidence to show that Dr. Gallagher was not a licentiate of the medical council of Pennsylvania, and that his statements to the contrary were untrue; which was followed by amotion to strike out all of his testimony.- This was refused, the trial judge stating: “The court declined to strike out the testimony of Dr. Gallagher. He was one of the physicians who attended upon Mr. McDyer, the deceased, and he was the physician de facto if not de jure. It may affect his credibility, but it would not be a warrant for the court to strike out his testimony, the fact he was not registered.” After testimony has been received without objection, the refusal to strike it out is not reviewable. In such a case the only course is to request the court to instruct the jury to disregard the testimony, and upon a refusal, to assign error: Ashton v. Sproule, 35 Pa. 492; Oswald v. Kennedy, 48 Pa. 9; Yeager & German v. Weaver, 64 Pa. 425; Geist’s App., 104 Pa. 351. In these days when there is a possible tendency to abuse the privilege of informing the court and jury by medical experts, where one is convinced in any particular instance that the testimony from such a source is in any respect impossible, insincere or unjustified, the matter should be called to the attention of the trial judge by appropriate requests for charge, so that the court may be in a position to properly exercise discretion in submitting the evidence to the jury; but in the present case this course was not pursued. For the reasons stated the assignments going to the point in question cannot be sustained. Before leaving the subject it is but fair to say that the testimony shows Dr. Gallagher to lie a graduate of a medical school of standing in Pennsylvania and a practitioner of many years.

Several doctors were called by the defendant, and after stating that they had either heard the evidence or read the notes of testimony of the witnesses named in the following question, they were asked: “From your experience as a doctor and your knowledge of medicine, and the information you received from the evidence of Dr. Gallagher, supplemented by the evidence of Drs. Hill, Schnifferstein, and Young, do you have any fixed opinion as to the cause of McDyer’s death?" In each instance an objection to this question was sustained. All of the doctors mentioned, with the exception of Dr. Gallagher, were witnesses for the defendant, and their testimony was conflicting in many essentials with the testimony given by him. An expert witness, after being first acquainted with the whole of the particular part upon which he is to pronounce, may be asked to express an opinion upon any defined portion of the testimony, which is not contradictory in itself, and the truth of which is expressly assumed; but he may not be asked to first ascertain and determine the conflicting elements, and then to express-an opinion upon his conclusion: Yardley v.- Cuthbertson, 108 Pa. 395. As the question was framed, this is precisely what the witnesses would have been obliged to do, and for that reason the objection was properly sustained.

In the fifth, sixth and seventh assignments counsel for the defendant complains of three short abstracts from the charge of the trial judge. When these portions are read in connection with the charge as a whole, the criticisms made are found to be unwarranted. The plaintiff's case to a degree rests upon the presumption, to which she was entitled, that the decedent acted with care, and therefore the trial judge made no misstatement of fact in saying that the contention was that McDyer approached the track carefully, and that he listened. As this was followed by a fair statement of the contentions of the defense, and by full instructions as to the care which McDyer was bound to take in order to avoid contributory negligence, no harm could possibly have been done by the manner in which the plaintiff's contention was stated. The charge contains an ample statement of the law on the measure of damages. It is true that the abstract assigned for error simply refers to the sum total of decedent's net yearly earnings as stated in the testimony of his widow; but there was considerable other testimony in detail upon this subject which counsel could have had called to the attention of the jury had he submitted proper requests to the trial judge. Not having pursued this course, he is not in a position to complain.

Upon the whole case we discover no reversible error, and no useful purpose will be served by a further discussion of the assignments. They are all overruled and the judgment is affirmed.


author: Mr. Justice Elicin,

text:
    Gilbert’s Estate.

      Constitutional law — Constitution of Pennsylvania, art. Ill, secs. 3, 6, 7 — Decedents’ estates — Intestacy—Widow’s share — Exemption laws— Title of act — Republication—Extension of previous statutes — Act of April, 1, 1909, P. L. 87 — Method of procedure.

    1. The Act of April 1, 1909, P. L. 87, regulating the descent and distribution of the estates of intestates, does not offend against secs. 3, 6 or 7, of art. Ill, of the constitution. This act is not an exemption law.

      2. The title of an act need not be a general index to the contents of the act, but it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions.
    3. An act, complete in itself, which applies an established method of procedure, whether it be by common law, or-statute, or joint operation of both, to a new class by general reference only, does not violate the constitutional provision as to republication, though it may operate to some extent as an extension of a previous statute.
    4. The Act of April 1, 1909, P. L. 87, is not a local or special law and therefore not within the inhibition of sec. 7, of art. Ill, of the constitution.
    Argued March 9, 1910.
    Appeal, No. 47,
    Jan. T., 1910, by Anna B. Foreman, from decree of O. C. Franklin Co., No. 47, of 1909, dismissing exceptions to appraisement in Estate of Henry C. Gilbert, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to widow’s appraisement. Before Gillan, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in dismissing exceptions.

      J. A. Strite, for appellant.
    — The act violates sec. 3, art. Ill, of the constitution: Detweiler’s App., 44 Pa. 243; Hufman’s App., 81 Pa. 329; Baskin’s App., 38 Pa. 65.
    The act violates sec. 6, art. III, of the constitution: Titusville Iron Works v. Oil Co., 122 Pa. 627; Com. v. Dougherty, 39 Pa. Superior Ct. 338.

      Sharpe & Elder and W. T. Omwake, for appellee. —
    It is not necessary that the title of an act should be a complete index to its contents: Com. v. Lloyd, 2 Pa. Superior Ct. 6, confirmed in 178 Pa. 308; Hoffa v. Person, 1 Pa. Superior Ct. 357.
    An act which is complete in itself, the purpose and full scope of which are apparent on its face, is valid, although it may operate to alter, extend or repeal a prior act or may provide for the means of carrying its provisions into effect by reference to a course of procedure established by other acts of the legislature: In re Greenfield Ave., 191 Pa. 290; Parrish v. Wilkes-Barre, 9 Kulp, 201.
   Opinion by

Mr. Justice Elicin,

March 28, 1910:

In the court below and here it was and is attempted to be shown that the act of 1909 relating to the descent and distribution of the estates of intestates is unconstitutional. It is contended that the act offends against secs. 3, 6 and 7 of art. Ill of the constitution. If the act was passed in disregard of any one of these constitutional requirements it must fall, but the learned court below was of opinion that these provisions of the organic law were not contravened and that the act was a valid exercise of legislative power. We concur in this conclusion for the following reasons: Section 3 of art. Ill relates to the title of a bill and provides that no bill except general appropriation bills shall be passed containing more than one subject, and that the subject shall be clearly expressed in the title. It is difficult to understand upon what theory the contention can be sustained that the-act of 1909 is in contravention of this constitutional provision. This act amends sec. 1 of the act of 1833 and the title of the later act recites totidem verbis the title of the amended act and indicates in general language the subject and nature of the amendment. This would seem to be a strict compliance with every requirement and there is no decided case in which there is even a suggestion that anything more is necessary to make a valid title to an act. It has been decided over and over again that the title need not be a general index to the contents of an act, but that it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions. The title to the act of 1909 fully meets these requirements. It relates to the descent and distribution of the estates of intestates and everything contained in the act is germane to this general purpose.

The second contention is no more tenable than the first. No attempt is made in the act of 1909 to amend or extend the provisions of the act of 1833 by reference to its title only, but sec. 1 of that act is set out and recited in full and then republished at length in the act as amended. This is the uniform practice and the proper method of amending an old law. It is argued, however, that the provision of the act as amended which relates to the procedure for setting aside the $5,000 in value of property in the same manner as the widow’s exemption is set aside under the act of 1851, is not set out and republished as the constitution requires. This argument is predicated upon the theory that the act of 1909 is an exemption law, and that in no proper sense can it be construed as an act relating to the descent and distribution of the estates of intestates. The difficulty with this contention is that it is right in the face of the express provisions of the act itself. The act of 1833 relates to the descent and distribution of the estates of intestates, and while it has been on the statute books for more than three-quarters of a century no one has ever called it an exemption law. We do not see how it can change its character because in 1909 the legislature amended the old law so as to give the widow of a husband dying intestate and without issue a larger share of his estate. The title to the act of 1909 declares that it is an act relating to descent and distribution, and we do not see how the courts can say that the legislature was mistaken and did not intend it to mean what it says. It is not an exemption law and was not intended as such. It is true that the setting aside of the property which passes to the widow under this act is according to the method provided by the act of 1851, but this has only to do with the procedure and does not affect the right of inheritance which is conferred by other portions of the act as amended. We think this clearly comes within the rule recognized in many cases that an act complete in itself, which applies an established method of procedure, whether it be by common law, or statute, or joint operation of both, to a new class by general reference only, does not violate the constitutional provision as to republication, though it may operate to some extent as an extension of a previous statute: In re Greenfield Ave., 191 Pa. 290; Pinkerton v. Traction Co., 193 Pa. 229; Woolen Machinery Company v. Browne, 206 Pa. 543.

The third contention is without merit. The act of 1909 is not a local or special law, and therefore not within the inhibition of sec. 7 of art. Ill of the constitution. It is a general law applicable to a general class and relates to all members of that class. It is a classification based upon natural and proper distinctions and one that has been recognized from the beginning of our state government. The descent and distribution of estates is primarily a legislative question. The legislature has the power to say in what manner, and to whom, and in what proportions, estates shall descend, and this power having been properly exercised in the act of 1909 we can see no reason why its provisions should not be enforced in accordance with the legislative direction. That it is not an exemption act and was not intended so to be, clearly appears in the express provisions of the act which at the very outset provides that “the real and personal estate of a decedent, whether male or female, remaining after payment of all just debts and legal charges, which shall not have been sold, or disposed of by will, or otherwise limited by marriage settlement, shall be divided and enjoyed as follows.” It is only the real and personal estate remaining after payment of all just debts and legal charges that is made the subject of descent and distribution under the subsequent clauses relating to the widow. The widow takes nothing under this act until the debts and legal charges have been provided for. Hence in no proper sense can it be said that it is such an exemption as is provided for by the act of 1851. The debts of the intestate must first be paid out of his estate, and when this is done descent and distribution follow according to the provisions of the act of 1909. It is argued that if the widow’s share is set aside by the appraisement the rights of creditors may be defeated, but this argument is without merit because the rights of creditors must always be protected by the courts and the personal representatives must see to it that the debts are paid before any distribution is attempted to be made. Ordinarily the personal representatives have a year in which to settle an estate, and as a general rule it would be the part of wisdom to delay the distribution of the share of the widow until this period has arrived. However, if there are no debts, or if all debts and charges are paid, there does not seem to be any good reason why the distribution should not be made within the one-year period. Again, the debts of a decedent are a lien upon his property for a period of two years after his death, and if the widow should take any property before a final distribution of the estate she would take it subject to these liens which could be asserted against the estate even after the share of the widow had been set apart.

Assignments of error overruled and decree affirmed at costs of appellant.