text:
    State Bank of Pittsburg v. Kirk, Appellant.

      Banks and banking — Corporation—Receivers—Directors—Promissory note.

    Where the directors of a bank, the capital of which is impaired, make their promissory notes to the bank under an understanding with the president and cashier that the notes are to be carried by the bank in order not to show overdue paper, and that the notes are to be paid out of the profits arising from the business, such directors cannot set up want of consideration to defeat an action instituted by a receiver, subsequently appointed, to collect the notes.
    The receiver represents the corporation, but he also represents its creditors, and it is his duty to secure all of the assets available for their payment.
    Argued Oct. 22, 1906.
    Appeal, No. 6, Oct. T., 1906, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1905, No, 432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of State Bank of Pitts-burg, in the hands of John F. Steel, Receiver, v. Thomas T. Kirk.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Affirmed.
    Assumpsit on promissory notes.
    Rule for judgment for want of a sufficient affidavit of defense.
    One of the several notes in suit was in the following form;
    “ $3,000. Pittsburg, Pa., April 7,1903.
    “ Nine months after date I promise to pay to the order of Thos. T. Kirk, at the State Bank of Pittsburg, Three Thousand 00-100 dollars.
    “ Without defalcation for value received.
    “No. 11,976. Due Jan. 7, ’04. J. C. Knapp.
    “ Indorsed: Thos T. Kirk, William Herb, Addison Boren, T. J. Williams, J. S. Espy, D. E. Horigan.”
    An affidavit of defense was filed setting up that no consideration was given for the notes, and that they were given in accordance with a memorandum in writing which was as follows :
    “ Pittsburg, Pa., April 7,1903.
    “ This is to certify that the State Bank of Pittsburg at this date hold the following notes : ■
    “ March 14, four months to order of D. E. Horigan, signed J. S. Espy, $2,000.
    “ April 7, three months to order of Thos. T. Kirk, signed J. C. Knapp, $3,120.
    “ April 7, six months to order of do. , signed J. C.
    Knapp, $3,000.
    “ April 7, nine months to order of do. , signed J. C.
    Knapp, $3,000.
    “ These notes are indorsed by all directors of said State Bank of Pittsburg. The undersigned, president and cashier, hereby testify that the above named notes are made up and carried by said bank in order to prevent having any past due paper, and it is further understood that said bank is to pay these notes out of the profits which at the present time are not sufficient without cutting down the surplus fund.

      “ These notes are to take the place of the following bad loans which have occurred up to the present time :
    “ R. L. Adams......$7,425
    “ Speer C. Nelson......1,695
    “ C. A. Weldon......2,000
    “Total.......$11,120
    “ J. S. Espy, President.
    “ Witness : T. J. Williams.
    “ (Seal of bank.)
    “ Louis Klein, Cashier.”
    The court entered rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      J. S. Ferguson, with him E. G. Ferguson, John Rebman, Jr., and John D. Brown, for appellants.
    The receivers, for the purpose of closing its concerns, have no right superior to those which the bank would have had if the management of its affairs would have continued with its directors, and the liability of third parties is not changed by their appointment: Lincoln v. Fitch, 42 Me. 456 ; Zane on Banks & Banking, sec. 329, page 584; Yeager v. Wallace, 44 Pa. 294 ; Singerly v. Fox, 75 Pa. 112.
    Some New York cases may be cited by the appellee to the contrary of this proposition, but it must be remembered that the rights of a receiver in the state of New York are defined by statute. There he is more than a custodian. He is a statutory assignee : Yeager v. Wallace, 44 Pa. 294.

      C. W. Reamer, with him D. M. Miller, for appellee.
    In practically similar cases the courts of the state of New York have held that the directors could not avail themselves of the defense set up by the appellants in this case : Sickles, Receiver, v. Herold, 11 Miscellaneous Reports, 583 (32 N. Y. Supp. 1083) ; Hurd v. Kelly, 78 N. Y. 588 ; Allen v. First Nat. Bank, 127 Pa. 51; Hayes v. Kenyon, 7 R. I. 136; Coddington v. Canaday, 157 Pa. 243 (61 N. E. Repr. 567).

      January 7, 1907:
   Opinion by

Mr. Justice Elkin,

This is an action by the receiver of the State Bank of Pitts-burg against the appellant, who was indorser on certain promissory notes, executed and indorsed under the following circumstances. Appellant was a member of the board of directors of the bank whose capital was impaired by bad loans. It was deemed advisable to charge off these bad loans and substitute, in lieu of the amount so charged off, notes executed and indorsed by the individual members of the board, in an amount sufficient to make good the impairment of capital. The arrangement was carried out and the notes upon which this suit is based were accordingly executed and indorsed. At the time of the substitution of the notes in question, the president and cashier made a certificate under the corporate seal of the bank, setting forth that the notes were made up and carried by the bank in order not to show overdue paper, with the understanding that the notes were to be paid out of the profits arising from its business, not then sufficient to do so without cutting down the surplus fund. These notes were renewed from time to time in accordance with the original understanding, and were held by the bank at the time of its failure, when a receiver was appointed. It is now contended that as between the indorsers and the bank, there was no consideration given for the notes, and that there can be no recovery by the receiver because he has no rights superior to those which the bank would have had if its management had continued under its board of directors. In other words, that the receiver stands in the place of the bank, and if the bank could not recover, he cannot. This is an erroneous view of the law. A receiver, it is true, represents the corporation, but he also represents its creditors, and it is his duty to secure all of the assets available for -their payment: Cushing v. Perot, 175 Pa. 66. This court has not heretofore been called on to pass upon the exact question now raised, but similar questions have frequently been before the courts of New York, and the rule laid down in that state is so consonant with good conscience, wise public policy, and natural justice, that we feel impelled to adopt and follow it. In the New York cases it was held that where the directors of a bank in order to take up certain bad loans held by the bank, which impaired its capital, had executed their own notes to the bank in like amount, pursuant to an agreement with the cashier, that the notes should not be enforceable until the deficiency upon the rejected securities should be ascertained, they could not set up want of consideration to defeat an action instituted by the receiver, subsequently appointed, to collect the notes. The same rule was held to apply when a number of trustees of a bank had executed a bond for the purpose of exhibiting it to the banking department as an asset when examined, in order to enable the bank to pass a satisfactory examination and continue its business; also, where the defendant, a trustee of the bank, had executed a mortgage to make good a deficiency in the assets of the bank. In all of these cases, and many more of a similar character, it was decided that the makers of the notes were estopped from setting up want of consideration : Kurd v. Kelley, 78 N. Y. 588; Best v. Thiel, 79 N. Y. 15; Hun v. Salter, 92 N. Y. 651; Rector v. Teed, 120 N. Y. 588; Sickles v. Herold, 149 N. Y. 332. The force of these decisions is recognized by the learned counsel for appellant, but, it is argued, that the powers of a receiver are greater in that state, their duties essentially different, being in the nature of a statutory assignee, and hence the rule of those cases should not apply here. The answer to this position is, as herein before stated, that in our state the receiver represents, not only the-corporation as a legal entity, but also the depositors and creditors of the bank, and that it is his duty to secure all of the available assets for their payment. The creditors and depositors cannot be affected by the secret agreement entered into between the president and cashier of a bank and the board of directors, and it cannot be set up to defeat a recovery in an action by the receiver on the notes.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    State Bank of Pittsburg v. Williams, Appellant. Same v. Horigan, Appellant. Same v. Herb, Appellant-Same v. Nichols, Appellant. Same v. Espy, Appellant.
    Argued Oct. 22, 1906.
    January 7, 1907:
    Appeals, Nos. 7, 8, 9, 10 and 11, Oct T., 1906, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1905, No. 438, etc., making absolute rule for judgment for want of a sufficient affidavit of defense in case of State Bank of Pittsburg, in the hands of John F. Steel, Receiver, v. T. J. Williams and others.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
   Opinion by

Mr. Justice Elkin,

For reasons given in State Bank of Pittsburg v. Kirk, ante, p. 452, judgment in these cases is affirmed.


author: Per Curiam,

text:
    Moore, Appellant, v. Chartiers Valley Water Company.

      Corporations — Water companies — Lease—Act of June 26, 1895, P. L. 369.
    A water company organized under the Act of April 29, 1874, P. L. 73, may lease its property to another water company organized under the same act.

      Statutes — Construction of statutes — Title to act — Act susceptible of two constructions.

    The title of an act is part of the act and aids, if needs be, in its construction.
    Where the words of a statute are susceptible of two constructions one of which will lead to an absurdity and the other not, the latter should be adopted.
    Argued Oct. 24, 1906.
    Appeal, No. 73, Oct. T., 1906, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1,093, dismissing bill in equity in case of Harry Moore v. Chartiers Valley Water Company, South Pittsburg Water Company et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Frazer, P. J., filed the following opinion :
    The purpose of this bill was to restrain the Chartiers Talley Water Company from leasing its property, franchises, etc., to the South Pittsburg Water Company, and also to declare void such lease if one had been executed.
    • From the bill, answer and • proofs we find the following facts:
    1. The Chartiers Talley Water Company is a corporation of Pennsylvania organized and existing under the corporation act of April 29, 1874, and its supplements, its articles of association having been acknowledged July 27,1896, approved by the governor and enrolled in the office of the secretary of the commonwealth July 30, 1896, and recorded in the recorder’s office of Allegheny county February 5, 1897. As set forth in its articles of association, the corporation was formed “ for the purpose of the supply of water to the public, or the supply, storage and transportation of water and water power for commercial and manufacturing purposes within the district lying South and West of the Ohio and Monongahela Rivers within the County of Allegheny, and outside the present limits of the City of Pittsburgh,” and its business was to be transacted in the city of Pittsburg. The present capital stock of the company is 20,000 shares of the par value of $50.00 each, the individuals named as defendants herein being the officers and directors of the company, since August 19,1904. Subsequent to its organization the company erected a waterworks, laid pipe, and until the execution of the lease hereinafter referred to supplied water to the public within the district mentioned in its charter.
    2. The South Pittsburg Water Company is also a corporation of the state of Pennsylvania organized and existing under the corporation act of April 29, 1874, and its supplements, its articles of association having been acknowledged June 2,1904, approved by the governor July 14, 1904, and enrolled in the office of the secretary of the commonwealth July 15,1904, and recorded in the recorder’s office of Allegheny county August 1, 1904. As set forth in the articles of association the corporation was formed “ for the purpose of the supply of water to the public, and its location of territory of supply is within the Borough of Bridgeville in the County of Allegheny and State of Pennsylvania.” The corporation subsequently acquired franchises empowering it to supply water to the public in all the municipal districts within which water was formerly supplied to the public by its codefendant, the Chartiers Yalley Water Company. The corporation was formed for the purpose of taking over under lease the franchises and property of the Chartiers Yalley Water Company and operating the same. Its capital stock is $3,000,000.
    3. Previous to the incorporation of the South Pittsburg Water Company its promoters 'and organizers submitted a proposition to the stockholders of the Chartiers Yalley Water Company providing for a lease of the latter company’s franchises and plant for the term of 999 years upon the following terms: The payment by the South Pittsburg Water Company of the floating indebtedness of the Chartiers company, amounting to about $125,000; the payment of the cost of a new pump at that time being erected by the Chartiers company; the assuming and paying of the bonded indebtedness of the Chartiers company of $1,000,000.; the payment of an annual rental to the company of $12,500, and it was further proposed to issue to the stockholders of the Chartiers company in lieu of their stock in that company stock of the South Pittsburg Water Company as follows: Twenty-five per cent of such holdings in five per cent guaranteed preferred stock, and seventy-five per cent in common stock.
    4. At an adjourned meeting of the stockholders of the Chartiers Yalley Water Company, held August 19, 1904, the same having been continued by successive adjournments from an earlier date, the stockholders of the company voted upon the proposition to lease its property to the South Pittsburg Water Company, referred to in the preceding finding, which proposition was adopted and approved, 16,948 shares voting in favor of the same, and 1,277 opposing the lease; 1,775 shares were not represented or did not vote. After the adjournment of the stockholders’ meeting, accepting the proposition of the South Pittsburg Water Company, the directors of the Chartiers Yalley Water Company met and by a resolution unanimously adopted, authorized the execution and delivery of a lease of- its property and franchises; pursuant to the action of the stockholders and directors of the company the officers thereof on the same date executed and delivered unto the South Pittsburg Water Company such lease, which company thereupon entered into possession of the demised property and has since that time exercised the franchises of the Chartiers Yalley Water Company and operated its plant.
    5. Plaintiffs are and were prior to August 19, 1904, owners of stock in the Chartiers Yalley Water Company.
    6. Harry Moore, one of the plaintiffs, from time to time as a director of the Chartiers Yalley Water Company voted and protested against the execution of the lease of its franchises to the South Pittsburg Water Company, and at the stockholders’ meeting of August, 1904, protested and voted against the authorization of the lease. His term as a director of the company having expired previous to August 19, 1904, he did not take part in the directors ’ meeting of that date which authorized the execution of the lease. Previous to the adjournment of the stockholders’ meeting of August 19, he gave notice to those present of his intention to file a bill in equity to enjoin the execution of the lease, and as a result of such notice the bill in this case was filed August 27,1904.
    - 7. Under date of August 25, 1904, Robinson Brothers, acting as agents for the promoters of the South Pittsburg Water Company in procuring-the lease now in question, mailed to the stockholders of the Chartiers Yalley Water Company a circular letter in which the stockholders were notified that all stock in thé' Chartiers Yalley Water Company not exchanged within fifteen days would “ only be received on such terms as may then be made.”
    CONCLUSIONS OP LAW.
    1. There being no evidence tending to show the use of improper means to induce the execution of the lease in question, or that its terms are unconscionable, the sole question for determination is the power of the Chartiers company to lease its plant to another corporation. If it has that power it must be conferred by the Act of June 26, 1895, P. L. 369, entitled “ A supplement to an Act, entitled ‘ An Act to provide for the incorporation and regulation of certain corporations,’ approved the twenty-ninth day of April, Anno Domini one thousand eight hundred and seventy-four, further amending the twelfth section thereof, so as to permit corporations organized thereunder, either for the purpose of carrying on any manufacturing business or for the supply of water, or for the manufacture or supplying of light, to purchase bonds or stock of other corporations of the same character, or to guarantee the payment- of interest and principal of such bonds, or either principal or interest, or to lease and operate corporate property.” The portion of the act applicable to this case and upon which the power to make the lease complained of depends, reads as follows : “ It shall and may be lawful for any company, organized under the provisions of this act, either for the purpose of carrying on any manufacturing business or for supply of water for manufacturing and supplying light, of this Commonweath or elsewhere to subscribe for, take, purchase, hold and dispose of the bonds or stock in any company of the same character incorporated under the provisions of this act or its supplements, or guarantee the payment of said bonds and the interest thereon, or either principal or interest, or to enter into contracts for the use or lease of the corporate property, real, personal or mixed of such company, upon such terms as may be agreed upon with the company or companies owning the same, and to run, use and operate such property in accordance with such contract or lease.”
    Both the Chartiers Water Company and the South Pitts-burg Water Company are organized under the act of 1814 for the purpose of supplying water to the public. They are corporations “ of the same character.” Do corporations of their character come within the provisions of the act ? It will be noticed there is a difference between the words used in the title of the act of 1895 and those used in the body. In the title, which is a part of the act, and aids if needs be in its construction, Halderman’s Appeal, 104 Pa. 251, the act is made to apply to three classes of corporations: (a) for the purpose of carrying on any manufacturing business, (b) for the supply of water and (c) for the manufacture or supplying of light, while the body of the act, plaintiff contends, applies to but two classes, those organized for the purpose of carrying on any manufacturing business, and those organized to supply water for manufacturing and supplying light. It seems to us plaintiff’s contention is not well founded. To give the act the construction contended for by plaintiff would be to limit its provisions to one class of corporation, viz. : those organized for manufacturing purposes, as there is no authority in the act of 1874 for the creation of corporations to “ supply water for manufacturing and supplying light.” The legislature certainly intended all provisions of the act to have effect, and the language used should be construed with that end in view. A rule of construction is that where the words of a statute are susceptible of two constructions one of which will lead to an absurdly, the other not, the latter should be adopted, though it be a liberal instead of a literal construction. Applying this rule to the act of 1895, its entire provisions can be given effect and the body made to conform with the title by reading into the body the word “ or ” immediately before the words “ for manufacturing and supplying light.” If the laws of this commonwealth provided for the creation of a class of corporations “to supply water for manufacturing and supplying light,” we should hold the language used in the body of the act should prevail and have effect in preference to that employed in the title. There being, however, no provision in our laws for the organization of corporations for that purpose we are clearly of the opinion the intention of the legislature as indicated by the title of the act was to confer upon manufacturing companies, water companies and light companies the power to lease their plants to other corporations of the same class; that intention being manifest, for the purpose of giving the act full effect and preventing a portion of its provisions from being meaningless the word “ or ” should be supplied as we have above indicated. This, we think, can be done without doing violence to anjr rule of construction.
    2. In accordance with the conclusion reached above it follows that the Chartiers Water Company had the right to lease its plant, etc., to the South Pittsburg Water Company. Plaintiff’s bill should therefore be dismissed.
    Let a decree be drawn accordingly.

      Error assigned was decree dismissing the bill.

      January 7, 1907:

      J. Rodgers McCreery, for appellant.
    A corporation can in no case make a lease, the entire rental and consideration for which does not pass to it in a corporate capacity; nor upon terms which require a stockholder to exchange his stock in lessor corporation for stock in lessee corporation in order to obtain the entire consideration for and benefit of the lease: Lauman v. Lebanon Valley R. R. Co., 30 Pa. 42; Titus v. Catawissa R. R. Co., 5 Phila. 172.

    It is a well-established principle that no quasi public corporation has an implied right to sell or lease its franchises, or such part of its property as will disable it from performing its corporate duties: Susquehanna Canal Company v. Bonham, 9 W. & 8. 27; Johnson Company v. Miller, 174 Pa. 605; Commonwealth v. Punxsutawney Water Company, 197 Pa. 569; Stewart’s App., 56 Pa. 413; Com., v. Erie, etc., R. R. Co., 27 Pa. 339; Com. v. Moorhead, 7 Pa. C. C. Rep. 513; Com. v. Light & Power Co., 145 Pa. 105.

      Geo. B. Gordon, with him Win. Watson Smith and Lyon, McKee c& Mitchell,

    for appellee, referred to: Deddrick v. Wood, 15 Pa. 9; Penna. R. R. Co. v. Riblet, 66 Pa. 164; Perkins v. Phila., 156 Pa. 554; Lewis’ Sutherland Interpretation of Statutes, ed. 1904, sec. 339 ; Pinkerton v. Traction Co., 193 Pa. 229.
   Per Curiam,

There being a manifest incongruity in the language of the act, the learned judge interpreted it in accordance with the general intent as indicated in the title. The decree is therefore affirmed on the opinion of the court below.


author: Mr. Justice Stewart,

text:
    Given, Appellant, v. Sands.

      Trusts and trustees — Deed—Equity.
    The husband of a grantee in a deed wrote a letter to the grantor immediately upon the delivery of the deed to the effect that he understood that he, the writer, was to look after the property to pay the taxes, keep up repairs, collect the rents, and sell it for a price agreed upon and “after everything has been equitably satisfied,” that the grantor should receive whatever balance there might be. After a sale of the property for an amount in excess of the grantor’s debt, the grantor filed a bill in equity against the grantee and her husband for an accounting of the balance. The defendants alleged that the grantor was indebted to them in another matter, and that the words “after everything has been equitably satisfied,” were intended to include all matters of account between the parties. This was denied by the grantor. It appeared from the evidence, that it was manifest from the beginning that if the other debt had been contemplated by the parties there could have been under no circumstances any balance remaining. Held,' reversing the court below, that the plaintiff was entitled to the balance which he claimed-.
    Argued Oct. 24, 1906.
    January 7, 1907:
    Appeals, Nos. 75 and 76, Oct. T., 1906, by plaintiff, from decree of O. P. No. 2, Allegheny Co., April T., 1905, No. 464, on bill in equity in case of William K. Given v. J. D. Sands and Sarah E. Sands.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an account and to establish a trust. Before Frazer, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      G. W. Williams, with him A. J. Edwards and W. S. Woods, for appellant.
    When words of general meaning are preceded or followed by words of particular meaning, then the doctrine of ejusdem generis is applicable: Bock v. Perkins, 139 U. S. 628 (11 Sup. Ct. Repr. 677); Wilkes v. Ferris, 5 Johnson, 335; Tucker v. Clisby, 29 Mass. 22; Andrews v. Schoppe, 84 Me. 170 (24 Atl. Repr. 805); Bills v. Putnam, 64 N. H. 554 (15 Atl. Repr. 138); Yaughan v. Porter, 16 Vt. 266.
    A trust must be wholly set forth in writing, otherwise it cannot be enforced: Dyer’s Appeal, 107 Pa. 446.

      William Yost, for appellees.
   Opinion by

Mr. Justice Stewart,

William K. Given, plaintiff in the original bill filed in this case, in the spring of 1901 conveyed to Sarah E. Sands certain real estate in the borough of Oakmont. The grantee, with her husband, J. D'. Sands, both of whom were made defendants in the bill, sold and conveyed the premises to another, realizing from the sale the sum of $1,143.92, over and above certain indebtedness of William K. Given to Mrs. Sands, which it was admitted was properly payable out of the proceeds of the sale. This balance of $1,143.92 passed from Mrs. Sands into the hands of her husband. The purpose of the bill was to have both declared trustees of plaintiff with respect to it. The defendants filed separate answers to the bill. The facts we have stated were admitted in each answer; and each contained an averment, that, while the conveyance from the plaintiff to Mrs. Sands was in trust, whatever balance remained after paying the claim of Mrs. Sands under the terms of the trust, was to be applied to plaintiff’s liability upon certain notes of the Monongahela Textile Company, on which plaintiff was co-indorser with defendant, J. D. Sands, and one John M. Given, which liability, it was averred, far exceeded the balance remaining, after paying the claim of Mrs. Sands. The position taken in the answer was, that the trust had been wholly executed, and defendants had nothing to account for. The defendant, J. D. Sands, filed a cross bill, John K. Given being made a party defendant therein,- in which the liability of himself, John M. Given and William K. Given for the obligations of the Monongahela Textile Company were set out specifically, and the relations of said parties as officers and stockholders of said textile company defined. The cross bill alleged that the textile company had proved insolvent, and that William K. Given having refused to pay any part of his liability on this indebtedness, Sands and John M. Given had been compelled to pay the entire debt. Sands claimed that in any event he was entitled to retain and apply the balance resulting from the sale to the plaintiff’s liability on the notes aforesaid. The prayer was for an accounting of the balance of the purchase money, and the sums paid by Given and the defendants, or either of them, on the obligations of the textile company for which they were severally bound. The answer to this bill'did not deny the original liability of the plaintiff on the notes mentioned, but denied present liability therefor, because of what had occurred after the insolvency of the company and concluded with a prayer that the cross bill be dismissed. Replications were filed, and upon the issue thus made up the evidence was taken. The findings and conclusions of the court were adverse to the plaintiff dn the original bill, resulting in a decree (1) awarding to J. D.- Sands .the balance remaining of the proceeds of the sale of the-‘real estate, to wit: $1,143.92, to be applied to account of- William K. Given’s share of the indorsements on the Monongahela Textile Company notes ; (2) ordering that William K. Given pay to J. D.. Sands the sum of $1,678.87 and to John-M. Given>the. sum of $1,667.22 in settlement of the accounts between-them.' The action of the court was virtually a dismissal of the plaintiff’s -bill and the affirmance of the cross bill. Exceptions were taken to the several findings and conclusions, and this appeal followed.

Whether the. cross bill, could be sustained at all, depends on how we shall find the facts to be as to the matters averred in the original bill. If the-contention of the plaintiff in that bill be-correct, that the real estate was conveyed to Mrs. Sands on the trust that upon the- sale of it, she would reimburse herself for the -money she -had advanced, and if this was all of the trust, it would follow that the affirmative relief asked for in the cross bill had ¡no relation to the subject-matter of the original bill, did not grow out of it, and therefore could not be considered. The real inquiry must be as to what the terms of the trust ■ embraced.- The deed to Mrs. Sands was delivered to J. D. Sands, who throughout the whole transaction, down to -the making of the sale, acted for his wife. The terms of the trust were defined, or sought to be defined, in a certain letter- written by Sands, addressed to William K. Given, immediately upon the delivery of the deed. This letter reads as follows: “ I am in receipt from Mr. Frazer, of Morgantown, of a- deed to Mrs. Sarah E. Sands from you. I understand by this that I am to assume the note in bank and look after the property and-pay the taxes and keep up repairs and collect the rents, and if I can sell it for a price agreed upon by you, after everything has been equitably satisfied, you are to receive whatever’balance there may be. Of course, it is understood that out of the rents the interest on mortgage is to be paid. If this is the understanding, you will kindly notify the 'tenant, so that I may’be able to arrange with him and have the rent paid up. promptly. I will try to so handle it that there may not be-any sacrifice or loss to you.” Testimony was admitted to explain what seemed' to the court an ambiguity in the expression “ alter everything has been equitably satisfied you are to receive whatever balance there may be.” This testimony resulted in little if any advantage to either side. The testimony admitted to explain these words,” says the learned, judge in his conclusion, “ was conflicting. W. K. Given testified they referred only to matters connected with the property and the note indorsed by his father and held by the Monongahela National Bank, while Sands testified they were intended to include the indebtedness incurred by the joint indorsements of the textile company’s notes, as well as the matters directly connected with the property.” While it is true that the evidence was conflicting, as to what occurred in the interview between the plaintiff and Sands, when the conveyance to Mrs. Sands was discussed, we are of opinion that the testimony of the plaintiff had the better support; but we need not go into this, for the reason, that what immediately followed in the learned judge’s finding makes it evident that his conclusion was uninfluenced by the oral testimony. He proceeds: Under the circumstances, the letter should receive a liberal construction —a construction that would be equitable between the parties. Considering the relationship existing between the parties, the fact that Mr. Sands was an indorser on the note of William K. Given held by the Monongahela National Bank, and also the joint liability of each of the textile company’s notes, we think the words ‘ after everything has been equitably satisfied ’ should be interpreted after all things or all matters have been equitably satisfied.’ Such interpretation certainly would be equitable, at least as between these parties; each is both morally and legally bound to discharge his proportionate share of the textile company’s obligations; no reason has been shown why the others should not make good the overpayment.” We are compelled to dissent from the view here expressed. In the first place, the note referred to in the letter being admittedly the note of the plaintiff, on which plaintiff’s father and J. D. Sands were indorsers, and which had been afterwards lifted by Mrs. Sands, the letter defining the trust, standing by itself, is clear of all ambiguity; it can be made ambiguous only by resorting to evidence de hors. The letter first denotes the trust property — the premises conveyed; then defines the duty and obligation of the trustee in connection therewith — to assume the note referred to, look after the property, pay the taxes, keep up repairs, collect the rents, and upon the sale of the property, after everything has been equitably satisfied, to pay over to plaintiff whatever balance there might be. If there was nothing in the trust as expressed to which the word “everything” could properly relate, it might be urged with at least some show of reason that the instrument was obscure; but with the word standing in proper and expressive relation to what precedes it, its meaning is too obvious to be speculated upon, certainly too obvious to admit of the implication that it stands for something not only not expressed in the instrument, but for something the existence of which is not even suggested in the instrument itself. Without explanation other than can be derived from the letter, the equitable satisfaction referred to must be held to have regard to those matters which the letter expressly provides for. When it is considered" what Sands was to do in connection with the real estate, the amounts he was to receive therefrom, and the amounts he was to expend in connection therewith, the period during which his control might continue, and the compensation he might possibly claim, the necessity for a settlement at the conclusion embracing all these matters was too obvious to have escaped the attention of the parties. .They wanted this settlement to be made on an equitable basis, and they provided for it. Such reference being at least reasonable, and adequate to give force and effect to the instrument as written, there can be no excuse for resorting to extrinsic evidence. • Without such evidence plaintiff’s liability for the indebtedness of the textile company would have been undiscoverable in this case. But with this liability introduced into the case, as a fact to be considered in construing the letter, the inquiry is simply widened without any advantage to the defendant. Before he could hope for a construction that would make the clause under consideration, refer to and include the liability that was joint with himself and John M. Given, he would have to explain why, in a paper written by himself, intended to express the terms of the trust, he makes specific mention of a certain other individual liability of the plaintiff for $2,000 for which he, Sands, was bound as indorser, with another, and which was to be secured, and omits any specific reference to the far greater liability which was his own as well, and which he now says was also to be secured. Again, the paper evidently contemplated a balance remaining after the purpose of the trust should be accomplished. This balance amounts to $1,143.92. If the conveyance was to secure as well the indebtedness on account of the textile company, it must have been manifest from the beginning, that there could under no circumstance be any balance remaining. Why such care to make specific provision for the payment of the balance which in no likelihood could result, and leave not only unmentioned, but unreferred to in any such, way as would identify it and bring it within the terms expressed, the indebtedness which, as it now appears, is sufficient to absorb it four times over ? Whether we interpret the paper from what is within its four corners, or in the light of the situation of the parties with respect to its subject and object, or read it in the light of the testimony, we can come to but one conclusion in regard to its true meaning, and that is adverse to the defendant’s claim. When this money passed into the defendant’s hands, it was impressed with the trust which the defendant fully understood. He made himself a trustee with respect to it. His wife stood in that relation from the ‘ beginning. Neither had any right to apply the fund in any other way than in accordance with the terms of the trust; it now belongs to the plaintiff.

The case before us presents but one phase of the dispute between these parties, and our determination has regard to this one phase alone. Whether it is calculated to promote or prevent a just settlement in the end of the whole, we cannot tell. We take the case as it is presented. Applying to its facts the law, and interpreting the writing according to settled rules of construction, no other conclusion than that we have indicated is possible.

The decree of the court below is reversed; and it is now ordered, adjudged and decreed that Sarah E. Sands and J. D. Sands pay to the said William K. Given, plaintiff, the sum of $1,143.92, with interest thereon from the October 11, 1904, and pay the costs of this proceeding.


text:
    Hannon, Appellant, v. Fliedner.

      Will — Estate tail — Estate in fee.

    Testator after giving a life estate to ,his wife and sister-in-law directed as follows: “After the decease of my wife and my sister-in-law and the termination of the life estates to them herein before mentioned, and subject to the same, I give, devise and bequeath to. my-daughter, her heirs and assigns all my property, real,- personal- and mixed, of every kind and description, but in case of the .decease, of -my said daughter, without lawful issue surviving her, then and in such case I give, deyise and bequeath all my property and estate of every description, real, personal and mixed to my son-in-law, his heirs arid assigns- forever.” Iield,' that the daughter, surviving her father, took- an. estate tail which under -the .Act of April 27, 1855, P. L. 368, was converted- into.an estate, in fee-simple.
    Argued Oct. 24, 1906.
    Appeal, No. 83, Oct. T., 1906, by plaintiff, from judgment of C. P. No. .2, Allegheny Co., April T., 1906, No. 91, for defendant on case. stated in suit of Harriett S. K. Hannon v. Charles Fiiedner.
    Before 'Mitchell, O. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.
    'Frazer, P.' J.,' filed the following opinion :
    Robert II. Stewart died July 22, 1879, leaving-a will in which certain property,-including that described in this case, was devised to his wife and sister-in-law'for life. The-will provides:

      “ After the decease of my wife and my sister-in-law and the termination of the life estates to them-hereinbefore mentioned, and subject to the-same, I give, devise and bequeath to-my daughter, 'Mrs. Mary Kirker, her'heirs and assigns, all my property, real, personal and mixed of every-kind and description, but in case of the decease of my -said-daughter, Mary Kirker, without lawful issue■ surviving her, thenian'd'in such case I give, devise and bequeath All my property and estate of every description, real, personal and mixed to-my son-in-law, Doctor John Kirker, his heirs and assigns--forever.”
    John Kirker and Mary Kirker had one son, Robert S. Kirker, who died May 1, 1902, unmarried, intestate and without lawful issue. Dr. Barker was -divorced from his wife, Mary Barker, November 10, 1888, and died January 23, 1897, leaving to survive him a widow, a daughter by his first wife (who is the plaintiff herein), a son, Robert T. Barker, by his second wife, Mary Barker, and a daughter, Rose Barker, by his third wife. Mary Barker died June 6, 1905. The plaintiff, Harriett S. K. Hannon, claiming'as the daughter of Dr. Birker to own a one-half interest in the land described in this case, sold the same to defendant. This case stated was agreed upon to determine whether or not Mrs. Hannon has an interest in the property. Her claim is based upon the portion of the will of Robert H. Stewart ábove quoted. We think this case comes within the rule laid down in'Mickley’s Appeal, 92 Pa. 514, and the line of cases which follow it. In Mickley’s Appeal it is said:
    “ It is very clearly settled, both in England and in this state, that if a bequest be made to a person absolute in the'first instance, and it is provided that in the event of death, or death without issue, another legatee or legatees shall be substituted to the share or legacy thus given, it shall be construed to mean death or death without issue before the testator. The first taker .is always the first object of the testator’s bounty, and his absolute estate is not to be cut down to an estate for life, or, what is practically the same thing, to be subjected to an executory gift over upon the occurrence of the'contingency of death or death without issue at any future period within the rule against perpetuities, without clear evidence of such an intent.”
    We find no evidence in the will of Mr. Stewart of any intention to cut down the estate of Mrs. Birker by- giving to the words, “ without lawful issue surviving her,” any other than their well-established meaning. In the absence of evidence indicating such intention, it seems clear to us testator created what would have been an estate tail prior to the Act of April 27, 1855, P. L. 368, but which that act and the line of cases referred to converted into a fee simple estate.
    Mrs. Birker having survived her father, and under his will taken an estate in fee simple in the property described in this case, it follows that plaintiffs have no interest therein. Judgment is therefore entered for defendant.

      January 7, 1907:

      Error assigned was the judgment of the court.

      John P. Hunter, of Schbyer & Hunter, for appellant.
    Under the will the words “ surviving her,” do not refer to Mary Kirker’s death in the testator’s lifetime, but relates to children living at her death: Mayer v. Walker, 214 Pa. 441; Mickley’s App., 92 Pa. 514; Flick v. Oil Co., 188 Pa. 317; Ralston v. Truesdell, 178 Pa. 429 ; Jessup v. Smuck, 16 Pa. 327; McAlpin’s-Est., 211 Pa. 26; Stoner v. Wunderlich, 198 Pa. 158; Taylor v. Taylor, 63 Pa. 481; Hill v. Hill, 74. Pa. 173; O’Rourke'v. Sherwin, 156 Pa. 285; Britton v. Thornton, 112 U. S. 526 (5 Sup. Ct. Repr. 591); Nicholson v. Bettle, 57 Pa. 384; Cote v. Von Bonnhorst, 41 Pa. 243.
    A definite and .not an indefinite failure of issue was intended : Nicholson v. Bettle, 57 Pa. 384; Nes v. Ramsay, 155 Pa. 628; Miller’s Est., 145 Pa. 561; Middleswarth v. Blackmore, 74 Pa. 414.

      George D. Riddle, with him Earnest W. Beach, for appellee.
    Under the will, the words: “ Without lawful issue surviving her ” refer to Mary Kirker’s death in the testator’s lifetime: Eichelberger v. Barnitz, 9 Watts, 447; Vaughan v. Dickes, 20 Pa. 509 ; Hackney v. Tracy, 137 Pa. 53; Mickley’s App., 92 Pa. 514; Fitzwater’s App., 94 Pa. 141; Stevenson v. Fox, 125 Pa. 568; Sharpless’s Est., 209 Pa. 409; Morrison v. Truby, 145 Pa. 540; Hogg’s Est., 27 Pa. Superior Ct. 428; McAÍpin’s Est., 211 Pa. 26; Beekley v. Riegert, 212 Pa. 91.
   Per Curiam,

Judgment affirmed on the opinion of the court below.


text:
    McAleer, Appellant, v. Good.

      Malicious prosecution — Unlawful arrest — False imprisonment — Arrest— Police officers.

    To constitute an arrest, it is not necessary that there be an application of actual force, or manual touching of the body, or such physical restraint as to be visible to the eye.
    Where two policemen go to a man’s house, and in some manner succeed in getting him to accompany them to the office of the chief of police, who searches him, and afterwards has him incarcerated in prison, such officers may be held liable as parties in an action for unlawful arrest.
    If an arrest of one person is made at the instance of another, with the latter’s knowledge and consent, it is sufficient to make him liable as a party, although he may not have expressly directed the officer to make the arrest.
    In an action for unlawful arrest and false imprisonment, the burden is upon the defendant to show that the arrest was made by authority of the law. •
    Constables and other police officers, who arrest persons suspected of having committed felony, in actions for damages, should be allowed to defend upon like principles as a private person, who causes an arrest by a complaint on oath, for it is the duty of those officers to make such arrest. If an officer wantonly and maliciously arrests an innocent man, he ought to be liable in quite as heavy punitive damages as a private person would be for a causeless and malicious prosecution; but if without notice, and in the honest endeavor to arrest and bring a felon to justice, he takes an innocent person, who was justly suspected, he should not suffer at all.
    Argued Oct. 24, 1906.
    Appeal, No. 94, Oct. T., 1906, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1903, No. 71, refusing to take off nonsuit in case of Harry McAleer, by his mother and next friend, Elizabeth McAleer, v. Albert R. Good, Frederick Lamp and John, alias Brocky, Moore.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass for unlawful arrest and false imprisonment. Before Brown, J.
    At the trial it appeared that Frederick Lamp and John Moore were police officers of the city ■ of McKeesport. On October 9, 1902, they went to the house where the plaintiff, a boy of nineteen years of age, resided, and in some way induced him to go to the office of the chief of police. There he was charged by the chief of police with stealing diamond earrings .belonging to tbe wife of Albert Good, another of the defendants. There was evidence that the arrest was made at the instance of Good. The ■ plaintiff was searched and imprisoned for over twenty-four hours, and then discharged after the diamonds had been found by the owner in her own house.
    The-court entered a compulsory ■ nonsuit which it subsequently refused to take off, Brown, J., filing the following opinion:
    The compulsory nonsuit was entered because the testimony failed to establish a joint act by the three defendants (Good, Lamp and Moore)- charged with the false arrest and imprisonment of the plaintiff.
    On October 9, about nine o’clock in the morning, Lamp and Moore went to the residence of the plaintiff, and Lamp, without producing a warrant, or saying that he had one, or that he had come to arrest him, said to the plaintiff that Chief Morrisy wished to see him; and thereupon the plaintiff went with them to the private office of the chief.
    Chief Morrisy, after fifteen or twenty minutes’ talk with the plaintiff, had him locked up. But there is not a syllable of testimony that Lamp or Moore had anything to do with arresting or locking him up. Their connection with the affair, so far as the testimony shows, was nothing more than the act of messengers sent to deliver to plaintiff' a message that Chief Morrisy wished to see him. Motion to take off nonsuit.is refused.

      Error assigned was the order of the court.

      F. C. McGirr, with him John Marron, for appellant.
    -In making an arrest it is not necessary that the party making the arrest-shall even touch the person of the arrested party, but it is enough if the arrested party is in the power of the party making the arrest and submits to the arrest, with the knowledge that he is being arrested: Mowry v. Chase, 100 Mass. 79 ; Gold v. Bissell, 1 Wend. (N. Y.) 210; Jones v. Jones, 13 Ired. (N. C.) 448; Ahern v. Collins, 39 Mo. 145; Searls v. Viets, 2 Thomp. & C. (N. Y.) 224; Russen v. Lucas, 1 C. & P. 153 ; Darling v. Kelly, 113 Mass. 29 ; Johnson v.

      January 7, 1907:
    Tompkins, 1 Baldwin (U. S. C. C.), 571; Emery v. Chesley, 18 N. H. 198; McCracken v. Ansley, 4 Strob. (S. C.) 1.
    It has been decided that the real instigator of a malicious prosecution cannot relieve himself from liability by showing that he was not the- prosecutor of record: Baker v. Moore, 29 Pa. Superior Ct. 301; Flinn v. Graham, 3 Pitts. 195; McCarthy v. DeArmit, 99 Pa. 63; ■ Grohmann v. Kirschman, 168 Pa. 189 ; Butler v. Stockdale, 19 Pa. Superior Ct. 98; Burk v. Howley, 179 Pa. 539.
    No appearance contra.
   Opinion by

Mr. Justice Elkin,

This is an action for unlawful arrest and false imprisonment. The learned trial judge, after hearing the plaintiff’s evidence, directed a compulsory nonsuit to be entered with leave to move the court in banc to take it off. A motion'to take it off was accordingly made and refused. The ruling is based on the ground that the testimony produced by the plaintiff failed to establish a joint act by the three defendants and did not show that Lamp and Moore had anything to do with the arrest and imprisonment of McAleer. We do not so read the testimony. This being a judgment of nonsuit, the evidence produced by the plaintiff must be accepted as true. It will not be seriously contended that to constitute an arrest, there must be an application of actual force, or manual touching of the body, or such physical restraint as to be visible to the eye. Such is not the law. All the authorities agree an arrest may be made either with or without a manual or actual touching by the officer. However, the manner of making the arrest would seem to be unimportant in view of the fact that Lamp and Moore went to the- house of McAleer and in some manner succeeded in getting him to accompany them to the office of the chief of police, who searched him and afterwards had him incarcerated in prison from about noon of the day of the arrest until four p. m. the next day. These facts indicate that the defendants were acting parts in the machinery set in motion by the chief of police, which resulted in the imprisonment complained of. As to Good, it need only be said that if the arrest was made at his instance, with his knowledge and consent, it is sufficient to make him liable as a party, although he may.not have expressly directed the officer to make the arrest : Burke v. Howley, 179 Pa. 539.

Again, it must not be overlooked that in an action for unlawful arrest, and false imprisonment, the burden is upon the defendants to show that it was by authority of law: McCarthy v. DeArmit, 99 Pa. 63. In this respect, the rule as to the burden of proof is not analagous to an action for malicious prosecution wherein it has been held to be the duty of plaintiff to affirmatively show want of probable cause.

In the case at bar, the testimony was sufficient, if believed, to cast on the defendants the burden of showing probable cause for the arrest and imprisonment. The rule applicable to such cases is very well stated in McCarthy v. DeArmit, 99 Pa. 63, wherein Mr. Justice Trunkev, who delivered the opinion of the court, said, “ Constables and other police officers, who arrest persons suspected of having committed felony, in actions for damages, should be allowed to defend upon like principles as a private person, who causes an arrest by a complaint on oath; for it is the duty of those officers to make. such arrests. If an officer wantonly and maliciously arrests an innocent man, he ought to be - liable in quite as heavy punitive damages as a private person would be for a causeless and malicious prosecution; but if without notice, and in the honest endeavor to arrest and bring a felon to justice, he takes an innocent person, who was justly suspected, he should not suffer at all.”

These are matters to be determined at the trial of the case.

Judgment reversed and a procedendo awarded.


author: Mr. Justice Brown,

text:
    Klenke v. West Homestead Borough, Appellant.

      Road law — Borough street — Change of grade — Act of May 24, 1878, P. L. 129.
    A petition under the Act of May 24, 1878, P. L. 129, sufficiently avers a change of grade, where it states that the borough by its officers and agents entered upon a street abutting the petitioner’s property, and excavated to a depth of about twenty to twenty-five feet, removing the support to the lot, and destroying the fence, shrubbery and trees.
    It is not necessary that such a petition should state that the change of grade was without the consent of the petitioner, or that the borough authorities and the petitioner had failed to agree on the amount of proper compensation to be paid.
    In a proceeding to assess damages for a change of grade an objection will not be sustained to the sufficiency of a statement filed of record, inasmuch as the case may be tried without a statement.
    Where a property is located in a township on a street shown on a plan of lots, and subsequently a borough is incorporated, and the street to its full width becomes a street of the borough, and it appears that over a portion of the street there was an old township road less than half the width of the street, the borough in changing the grade between the line of a lot and the old township road, is liable in damages to the owner of the lot affected by the change of grade.
    Argued Oct. 24, 1906.
    Appeal, No. 104, Oct. T., 1906, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 523, on verdict for plaintiff in case of Rosa Klenke v. West Homestead Borough.
    Before Mitohell, C. J., Fell, Brown, Mbstrezat, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from jury of view. Before Macearlane, J.
    The facts are stated in the opinion of the Supreme Court.
    The defendant presented the following points:
    1. If the jury believe that the grade of the old township road has not been lowered in front of plaintiffs property, plaintiff is not entitled to recover. Answer : Refused. [1]
    2. Under the pleadings in this case, the plaintiff is not entitled to recover. Answer: Refused. [2]
    3. Under the law and the evidence in this case, the plaintiff is not entitled to recover. Answer: Refused. [3]
    The court charged in part as follows:
    [While that was a township no one had a right to change the grade of the portion of this eighty-foot street between the township road and Mrs. Klenke’s front line by any proceeding that I know of, except the township might possibly get the road widened in some way, but unless there was some new proceeding that would give Mrs. Klenke a right of action no one could interfere with that part of the street. This for the reason that in townships when a plan of lots is laid out and a street laid out on it, that is simply for the benefit of all the people in that plan of lots. Of course it may be used in such a way as to become a public street,- but' it • is not like a borough street where every man knows when he buys apiece of property that the borough authorities have a right to change the grade, and are -liable to do it. So that when Mrs. Klenke bought here she bought as it stood then, not in a borough, but in a township, and knowing that there was liable to be a change of grade in the township road,- the thirty-three feet, but none in the rest of the street. In other words, she took her risk as to the changes in the township road.
    January 7, 1907:
    But as to the change on the other by the borough from the old township road over to his line, under the evidence that was introduced by the plaintiff, if you believe it — and it is not in dispute really, the evidence is brought from the borough office in the form of ordinances — if you believe that, and that the railroad company or the street railway company, or the borough itself, did this actual digging and made a change in the natural grade which existed, in pursuance of an ordinance fixing that grade, which changed it from the natural surface, then the plaintiff would be entitled to recover.] [4]
    Verdict and judgment for plaintiff for $1,770. Defendant appealed.

      Errors assigned were (1-4) above instructions, quoting them.

      John G. Silveus, for appellant.

      John F. Com, for appellee.
   Opinion by

Mr. Justice Brown,

When appellee purchased her property it was situated in Mifflin township, Allegheny county. It was on a plan of lots, according to which there was a street in front of it eighty feet wide, known as Eighth avenue. Over a portion of this street, on the north side, there was an old township road thirty-three - feet wide. Appellee’s property fronted on the south side of the- street. The south line of the township road was about forty-one feet from the north line- of the property. The borough of West Homestead was incorporated in 19-00, about three years after-the appellee had received her deed, and Eighth avenue became one of its streets. The surface of Eighth avenue sloped down towards the north from the front of appellee’s lot until it reached the old township road. The borough of West Homestead, by ordinance, fixed the grade of Eighth avenue in front of appellee’s property, and in October, 1902, excavations were made along it, causing the damages for which this action was brought.

One of the contentions of the appellant is that the viewers were improperly appointed under the Act of May 24,1878, P. L. 129, because the petition for their appointment fails to allege a change of grade by the borough authorities. It avers that the borough of West Homestead, by its officers and agents, entered upon Eighth avenue, upon which the petitioner’s property abuts, and excavated to a depth of about twenty to twenty-five feet, removing the support to the lot and destroying the fence, shrubbery and trees; and the prayer is for the appointment of viewers to view the premises and assess damages for the “excavation and change of grade.” The act provides for the appointment of viewers whenever the proper authorities of any borough, within this commonwealth, have changed or may hereafter “ change the grade or lines of any street or alley, or in any way alter or enlarge the same,” causing damage to the owner.or owners.. Under the words “ change the grade or lines of any street or alley, or in any way alter or enlarge the same,” the averments of the petition were sufficient to entitle the petitioner to the appointment of viewers. Another objection is that it does not appear on the face of the petition that the change of grade or alteration of the street was without the consent of the petitioner, or that the borough authorities and she had failed to agree upon the amount of proper compensation to be paid. In Seaman v. Borough of Washington, 172 Pa. 467, we said: “ The presenting of a claim for damages to council is no part of the statutory requirement, nor is an unsuccessful.attempt to agree a jurisdictional fact essential to recovery. The mere absence of consent of the owner to the change is of itself alone sufficient to enable a recovery, so also is a mere failure to agree.” Even if the petitioner had consented to the change, unless such consent amounted to an express release of damages, she is not es-topped from claiming them. The fact that she presented her petition, asking for the appointment of viewers to assess the damages, is presumptive evidence that she had not released them, and the complaint that she makes of the injury to her property, caused by the change of the grade in the street, is also evidence, in the first instance, that she did not consent to it. While the petition might have followed the act of 1878 more'closely, no jurisdictional fact that ought to appear in it has been omitted from it. . The order to the viewers showed that they were appointed to assess any damages the petitioner might have sustained by reason of the change of the grade of Eighth avenue, and they reported that the damages allowed had been caused by the change of the grade of that street. The objections to the petition are extended to the statement that was filed. It does not appear that any form of issue was directed by the court. Upon the filing of the petition by the appellee it had acquired jurisdiction to direct the ascertainment of any damages she might have sustained by a change or alteration of the grade of the street. That was the question submitted to the jury under correct instructions, and the judgment on their verdict is not to be disturbed because the statement is alleged to be insufficient, for a case like this might have been tried without one: Philadelphia, Germantown and Norristown Railroad Co. v. Smick, 2 Whart. 273.

The natural grade of Eighth avenue in front of appellee’s property, between it and the south line of the old township road, was changed by the borough of West Homestead and the street between these points was altered by it. Immediately in front of the property the cut made is, according to the testimony, from fifteen to eighteen feet. If she has been damaged by this change of the natural grade of the street, as it existed at the time she purchased the property and when Eighth avenue became one of the streets of the borough of West Homestead, her right to recover is not open to question: Borough of New Brighton v. United Presbyterian Church, 96 Pa. 331; Borough of New Brighton v. Peirsol, 107 Pa. 280. In overruling the motion for a new trial the court below correctly held that the case was controlled by Harp v. Glenolden Borough, 28 Pa. Superior Ct. 116, and the cases therein cited.

The assignments are all overruled and the judgment is affirmed.


text:
    Crescent Township, Appellant, v. Pittsburg & Lake Erie Railroad Company.

      Railroads — Appropriation of highway — Widening right of way — Township road — Equity—Preliminary injunction — Presumppion.
    A preliminary injunction will not be granted on a bill in equity filed by a township against a railroad company to prohibit it from appropriating longitudinally a portion of a township road for the purpose of straightening, widening and improving the railroad.
    Argued Oct. 24, 1905.
    Appeal, No. 107, Oct. T., 1906, by plaintiff, from decree of O. P. No. 1, Allegheny Co., June T., 1906, No. 650, refusing a preliminary injunction in case’ of Crescent Township v. Pittsburg & Lake Erie Railroad Company.
    Before Mitchell, O. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The bill was in substance as follows :
    1. The township of Crescent is a township of the first class, under the act of April 28, 1899, in Allegheny county, Pennsylvania.
    2. The Pittsburg & Lake Erie Railroad' Company is a railroad corporation, incorporated under the act of April 8, 1868, having its principal office in Pittsburg, Pennsylvania.
    3. In 1897, at No. 6, December sessions, 1896, of the quarter sessions court of Allegheny county, a public highway was laid out in Crescent township from the Beaver county line through the village of Shousetown to the Flaugherty Run road on and along the old abandoned roadbed of the Pittsburg & Lake Erie Railroad Company. For more than 1,700 feet, in said village, said public highway is known as High street.
    4. Said public highway was laid out and duly opened to the width, of forty feet. Since 1897 it has been continually used and traveled as such and the part thereof known as High street is not an ordinary country road but is abutted on the southerly side by many building lots whereon are many residences.
    5. The northerly side of the part of this public highway known as High street is adjoined, abutted and paralleled for the entire distance of upwards of 1,700 feet by theright of way of the Pittsburg & Lake Erie Railroad Company, whereon said company’s railroad has been located, constructed and operated for a period of more than fourteen years.
    January 7, 1907:
    6. Plaintiff charges that defendant company has unlawfully entered upon the location and roadway of the part of said public highway, known as High street, has begun to dig up, excavate and render it impassable, with the avowed intention of appropriating and subjecting said part thereof known as High street, to its own use and possession, to. build and construct thereon longitudinally its tracks and roadbed in pursuance of the expressed and declared purpose of straightening, widening and otherwise improving its railroad under the Act of March 17, 1869, P. L. 12.
    7. Plaintiff is advised, believes and charges that defendant company has no authority under this act or any other law or laws of the commonwealth of Pennsylvania to seize, take and occupy said public highway or any part thereof to straighten, widen, deepen or otherwise improve its railway lines, or for any other purpose.
    No answer was filed and the case was disposed of by the court upon bill and testimony.

      Error assigned was the decree of the court refusing preliminary injunction.

      Henry A. Jones, with him Franklin P. lams, for appellant.

      Samuel McClay, with him Reed, Smith, Shaw & Beal, for appellee.
   Per Curiam,

This is not a case for preliminary injunction. We express no opinion on the merits until the facts are more fully established.

Appeal dismissed.


author: Mr. Chief Justice Mitchell,

text:
    King’s Estate.

      Wills — Legacy—Gift for payment of debts.

    Testator directed that his two sons should pay his debts which were a lien on his property “ as soon as the same can conveniently be done,” for which they were eack to receive $1,200 “ in addition to an equal share with all my other children.” Held, that the gift of $1,200 was meant to reimburse the sons if they paid the debts, but the direction was precatory merely, and did not imply a charge on the sons’ shares, whether they paid the debts or not.

      Wills — Testamentary partition — Partition—Act of April 17, 1869, P. L. 72.
    Where a testator has prescribed a method of partition, but failed to name the parties to make it or to provide for their appointment, the Act of April 17, 1869, P. L. 72 will apply.
    Where the devisees of a testator have delayed for eight years in carrying out a testamentary method of partition, and in the meantime radical changes in circumstances have occurred, and the usual changes in the value of the land have taken place, the court will consider that the devisees have acquiesced in the substitution of the usual statutory method of partition for the one prescribed by the will.
    The tendency in doubtful eases is to regard testamentary methods of partition as cumulative rather than exclusive.
    Argued Oct. 25, 1906.
    January 1, 1901:
    Appeal, No. 110, Oct. T., 1906, by Jobu S. King, from decree of O. O., Allegheny Go., Sept. T., 1905, No. 8, awarding partition in Estate of Thomas King, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Petition for partition.
    The facts are stated in the opinion of the Supreme Oourt.

      Error assigned was decree awarding partition.

      George E. Alter, with him Willam Yost, for appellant.

      R. B. Petty, Jr.,

    for appellee, was not heard, but cited in his printed brief: Rawle’s App., 119 Pa. 100 ; Klohs v. Reifsnyder, 61 Pa. 240; Caldwell v. Snyder, 118 Pa. 420 ; Graham’s Est., 32 Pitts. L. J. 85.
   Opinion by

Mr. Chief Justice Mitchell,

The testator directed that his two sons, Jacob A. and John, should pay his debts which were a lien on his- property “ as soon as the same can conveniently be done,” for which they were each to receive $1,200 “ in addition to an equal share with all my other children.” If they failed to pay the debts then they- were only to receive an equal share of the estate. The gift of $1,200 was meant to reimburse the sons if' they paid the debts, but the direction was precatory merely, and did not imply a charge on the sons’ shares, whether they paid the debts or not. As they did not, this provision of the will drops out of the case.

Testator further provided “ Fifth. It is my will that my real estate be appraised by twelve disinterested men as soon after the decease of my wife as the same can be done, and that the farm on which I now reside be divided into two equal parts as nearly as the same can be done without injury to the property, the farm which I purchased of Mrs. James Bryar to remain whole. After the payment of the $2,400 aforementioned to my two sons, Jacob Alter and John King, the property remaining to be divided into equal shares among all my children, namely, Jacob Alter King, John King, William George King, Thomas Newton King, Eliza Jane King and Hugh Davidson King, my eldest son to have the first choice of any part of my real estate at the appraisement, and my other children to choose in the order directed in the intestate laws, and any of my children taking any of the real estate before mentioned to have five years to pay the same.”

We cannot concur with the learned judge below that the Act of April 17, 1869, P. L. 72, is inapplicable. The testator indicated the means of appraisement, viz.: twelve disinterested men, and the method, viz.: the home farm to be divided into two parts as nearly equal as can be done without injury, and the Bryar farm to remain whole. But he failed to indicate the twelve appraisers or how they should be appointed. This is the very case the act of 1869 was intended to meet. It is a remedial statute to enable the court to supply the necessary machinery to carry out the testator’s will where his purpose is clear but the means defective, and it should receive a liberal construction in furtherance of its intent.

Testator’s plan was to have the two farms made into three purparts, and the choice then to go to the oldest son and the other children in the order directed by the intestate law. It was not impracticable. The shares were to be made equal which might be done by owelty or charges in the usual way. It is not clear that the words the “ real estate be appraised ” in connection with the words “ be divided ” applied to the home farm, do not carry to the twelve men the authority to make partition as well as appraisement. But if that be treated as doubtful the title after the division could be conveyed by proceedings in the orphans’ court, as said in Rawle’s Appeal, 119 Pa. 100.

But the testator’s plan presented some serious difficulties in its execution. The sons did not pay the debts and in' consequence the most valuable part of the Bryar farm which the testator had desired to remain whole was sold by order of the orphans’ court to pay -the debts; the appellant who now complains was party to these proceedings; the home farm was found capable of division into two parts of nearly equal area, but they would be of very unequal value, and such division would be injurious to the property. The plan, therefore, while not in itself impracticable was so interfered with by subsequent matters that only an approximate execution of it was possible. In this situation the devisees apparently abandoned it. Testator had directed the division to be made as soon after the decease of his wife as it could be done. The widow died in September, 1897, but no effort was made to appraise according to the will for eight years, and in September, 1905, the younger children filed this petition for partition according to law. In the meantime the changes in circumstances were going on, as well as the usual changes in values of the land. Under these circumstances their action must be taken as an acquiescence by all the heirs in the substitution of the usual statutory method for the one prescribed by the will. And this inference is all the stronger in view of the tendency in doubtful cases to regard testamentary methods of partition as cumulative rather than exclusive: Bawle’s Appeal, 119 Pa. 100 ; Oaldwell v. Snyder, 178 Pa. 420.

Decree affirmed.


author: Mr. Justice Fell,

text:
    Wisniawski v. Carbon Steel Company, Appellant.

      Negligence — Master and servant — Contributory negligence.

    In an action against a steel company to recover damages for death of plaintiff’s husband, it appeared that the deceased was foreman of a gang of men employed in defendant’s yard in breaking scrap iron and molds. The appliance used was a tripod thirty feet high, to the top of which a heavy iron ball was raised and allowed to drop on the pile of iron beneath it. To protect the workmen from the fragments of iron that would be thrown about when the ball fell, a rough shed had been constructed at one side of the base of the tripod and a few feet from it. Deceased had been foreman of the day gang two and a half years, and he and his men with the assistance of a carpenter had built the shed about a year before. Its sides were made of railroad ties bolted together and the top of heavy sheet iron. Other railroad ties were kept in the yard for use in strengthening or protecting the building when necessary to do so. Deceased had entire charge of the work during the day and directed what should be done and how it should be done. When he came to his work on the morning of the accident he found a large pile of broken scrap left by the night gang engaged in the work. He applied to someone in authority in the yard, known as the labor boss, for buggies to remove the scrap, and told him the shed was weak. He was told by this man that the buggies were all in use at the time, and to go on with his work. Without removing any of the scrap iron left by the night gang, he broke other iron on the top of it for two hours, thus adding to the pile. The ball glanced or rolled from the pile, struck the shed and broke one of the timbers, which fell upon and injured deceased, causing his death. It was undisputed that the accident was caused by allowing the pile of scrap to become too high, and to slope towards the shed. Held, that the deceased was guilty of contributory negligence, and that plaintiff was not entitled to recover.
    Argued Oct. 25, 1906.
    Appeal, No. 61, Oct. T., 1906, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 333, on verdict for plaintiff in case of Mary "Wisniawski v. Carbon Steel Company.
    Before Mitchell, C. J., Pell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Kennedy, P. J.
    The opinion of the Supreme Court states the circumstances connected with the accident.
    Yerdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      January 7, 1907:

      Stephen Stone, of Stone & Stone,

    for appellant, cited: Ricks v. Ftynn, 196 Pa. 263 ; Lehman v. Carbon Steel Co., 204 Pa. 612; Reese v. Clark, 146 Pa. 465 ; McCombs v. Pittsburg, etc., Ry. Co., 130 Pa. 182; Diehl v. Lehigh Iron Co., 140 Pa. 487; Wilkinson v. Johns Mfg. Co., 198 Pa. 634; Cracraft v. Bessemer Limestone Co., 210 Pa. 15; Marsden v. Haigh, 14 W. N. C. 526 ; Fick v. Jackson, 3 Pa. Superior Ct. 378; Green & Coates St. Pass. Ry. Co. v. Bresmer, 97 Pa. 103; Beittenmiller v. Bergner & Engel Brewing Co., 12 Atl. Repr. 599.

      Meredith P. Marshall,

    with him Thos. M. and Rody P. Marshall, for appellee, cited: McCray v. Sterling Varnish Co., 7 Pa. Superior Ct. 610 ; Wagner v. Jayne Chemical Co., 147 Pa. 475 ; Reese v. Clark, 198 Pa. 312; Patterson v. R. R. Co., 76 Pa. 389; Hughes v. Fayette Mfg. Co., 214 Pa. 282.
   Opinion by

Mr. Justice Fell,

Antonio Wisniawski, the plaintiff’s husband, was foreman of a gang of men employed in the defendant’s yard in breaking scrap iron and molds. The appliance used was a tripod thirty feet high, to the top of which a heavy iron ball was raised and allowed to drop on the pile of iron beneath it. To protect the workmen from the fragments of iron that would be thrown about when the ball fell, a rough shed had been constructed at one side of the base of the tripod and a few feet from it. Wisniawski had been foreman of the day gang two and a half years, and he and his men with the assistance of a carpenter had built the shed about a year before. Its sides were made of railroad ties bolted together and the top of heavy sheet iron. Other railroad ties were kept in the yard for use in strengthening or protecting the building when necessary to do so. Wisniawski had entire charge of the work during the day and directed what should be done and how it should be done. When he came to his work on the morning of the accident he found a large pile of broken scrap left by the night gang engaged in the same work. He applied to some one in authority in the yard, known as the labor boss, whose duties and whose authority are not defined, for buggies to remove the scrap, and told him the shed was weak. He was told by this man that the buggies were all in use at the time, and to go on with his work. Without removing any of the scrap iron left by the night gang, he broke other iron on. the top of it for two hours, thus adding to the pile. The ball glanced or rolled from the pile, struck the shed and broke one of the timbers, which fell upon and injured Wisniawski, causing his death.

The allegations of negligence are that the shed was improperly constructed and that the sides were weak, and that the deceased had continued to work on the assurance by the labor boss that it was safe. The questions submitted to the jury were whether Wisniawski had continued at work because of the assurance of safety and whether the danger was so manifest that he knew of it and took the risk. ¡

The undisputed testimony, that produced by the plaintiff as well as that produced by the defendant, was that the accident was caused by allowing the pile of scrap to become too high and to slope towards the shed. The shed was intended as a protection against small pieces of iron that might be thrown out when the ball fell; there was no danger from the ball if the pile was kept low or was properly constructed so that the ball would fall directly on the top of it. If the pile was high, the ball would roll off of it in the direction in which the pile sloped. This was the only danger from the ball. The whole work was under the control of Wisniawski. He could have had the scrap drawn to one side until he could procure buggies to remove it, and he could have had the pile reshaped so as to avoid danger from the ball. Instead of doing this he broke scrap for two hours, increasing the pile and giving no attention to its shape. The shed was not insufficient for the purpose for which it was primarily intended. If it was insufficient as a protection against the ball when the pile of scrap became too high or was misshaped, no one knew this better than Wisniawski, who had helped to build it and who used it every five minutes during the day. He had the material at hand to remedy any defects. He continued to work in the presence of a danger which was manifest and of his own creation, and which he had the power to remove at will. We see no ground on which a recovery against the defendant can be .sustained.

The judgment is reversed and judgment is now entered for the defendant.