author: Mr. Justice Fell,

text:
    Wilson, Appellant, v. Atlantic Crushed Coke Company.

      Negligence — Master and servant — Explosion of dynamite — Defective fuse — Mines and, mining.

    In an action by a coal miner against his employer, the owner of a coal mine, binding instructions for the defendant are proper where the evidence shows that the plaintiff and a competent foreman were engaged in blasting with dynamite; that three fuses connected with charges were lighted at the same time; that within two or three minutes after the men had reached a place of safety two of the charges went off; that after waiting twenty or twenty-five minutes they started back to clear away the debris when the third charge exploded, and plaintiff was injured; that the cause of the delay was the absence of powder in some inside part of the fuse; that this defect in the fuse could not be ascertained by inspection; that the usual period of delay in an explosion did not exceed six or eight minutes, and the only instance of a longer delay was a single one in an experience of thirty-five years; that the plaintiff had worked many years in mines and knew that there was a possibility that the charge which had not exploded with the others might explode later; and that the appliances used for exploding the dynamite were those in common use in coal mines.
    Argued Oct. 16, 1907.
    Appeal, No. 163, Oct. T., 1907, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1906, No. 321, on verdict for defendant in case of William M. Wilson v. Atlantic Crushed Coke Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Doty, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      D. J. Snyder, for appellant,
    cited: Tissue v. Baltimore & Ohio R. R. Co., 112 Pa. 91; Levy v. Rosenblatt, 21 Pa. Superior Ct. 543; Wagner v. Jayne Chemical Co., 147 Pa. 475; New v. Milligan, 27 Pa. Superior Ct. 516; McCray v. Varnish Co., 7 Pa. Superior Ct. 610; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Sweigert v. Klingensmith, 210 Pa. 565; Rummel v. Dilworth, 131 Pa. 509; Libbering v. Struthers, 157 Pa. 312; Bannon v. Lutz, 158 Pa. 166.

      Robert W. Smith, with him William S. Rial and James S. Moorhead, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The plaintiff was employed as a laborer in a coal mine operated by the defendant, and at the time of his injury he was engaged in blasting with dynamite under the direction of an .experiencéd foreman. Three fuses connected with charges were lighted at the same time, and the foreman, the plaintiff and another man, who was assisting with the work, withdrew to a place of safety. In two or three minutes after they had reached this place two of the charges went off. They waited twenty to twenty-five minutes because of the danger from the explosion of the third charge, and then started back to clear away the debris. When they were near the third charge it exploded, and the foreman was killed and the plaintiff was injured.

The cause of the delay of the explosion of the third charge was the absence of powder in some part of the inside of the fuse. In the experience of the witnesses it had been found that occasionally fuses were defective in this respect, and that fuses lighted at the same time would not burn with equal rapidity and cause simultaneous explosions. The usual period of delay in an explosion did not exceed six or eight minutes, and the only instance of a longer delay was a single one in an experience of thirty-five years. This defect in a fuse was admittedly one that could not be discerned by inspection. The plaintiff had worked many years in mines and in other places where blasting was done, and, while his experience in the actual work of blasting may have been limited, he know that there was a possibility that the charge which had not exploded with the others might explode later, and he waited until in his judgment or that of the foreman all danger from that source had passed. The appliances used for exploding the dynamite were those in common, in fact in almost universal, use in coal mines.

There was then no ground on which a finding of negligence could be based. There was not a failure to provide proper appliances. The defect in the fuse was latent, and not discoverable by inspection. There was no negligence in the method employed, because it was the usual method, and “ the unbending test of negligence in methods, machinery and appliances is the ordinary use of the business : ” Titus v. Railroad Co., 136 Pa. 618. There was no necessity for instruction, because the plaintiff was familiar with the ordinary dangers of the work in which he was engaged, and he knew the special danger of an explosion of the third charge and waited until he or a fellow workman, on whose judgment he relied, believed all danger had passed, and for a time much longer than in the experience of any of his witnesses danger was to be apprehended. No warning could have gone further than this. The direction to find a verdict for the defendant was a proper one under the testimony.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Neubert v. Colwell.

      Will — Devise—Estate in fee — Substitutionary gift.

    It is a general rule that after an absolute devise in fee a provision that in case of the death of the devisee without issue, or without issue living at the time of his death, or similar phrase, then over to another, is not a limitation or curtailment of the prior devise but is alternative or substitutionary and to take effect only on the death of the first devisee in the lifetime of the testator.
    Testator after having devised one-half of his estate to his son “and his heirs and assigns” and the other half to his daughter “and her heirs and assigns,” directed as follows: “But if either of my said children shall die without leaving lawful issue living at the time of his or her death, then and in that event, the part or share of the child so dying shall go to and vest in the survivor and his or her heirs and assigns. And if both of my said children shall die without leaving lawful issue living at the time of the death of the survivor of them, then and in that event,- the shares or estates-of said children shall go to and become vested in my nephew and his heirs and assigns.” Held, that the testator’s children, surviving their father, took an absolute estate in fee.
    Argued Oct. 17, 1907.
    Appeal, No. 125, Oct. T., 1907, by C. Montieth Gilpin, from decree of C. P. Armstrong Co., Dec. T., 1906, No. 88, on bill in equity in case of Valentine Neubert v. Phebe B. Colwell and her husband, Henry A. Colwell, Mary H. Hudson and her husband, Robert Hudson, O. W. Gilpin and Mary E. Adele Gilpin, C. Montieth Gilpin and Elizabeth McConnell.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for partition.
    Before Patton, P. J.
    From the record it appeared that John Gilpin died in 1883, seized of an undivided one-sixth of a lot known as No. 136 in Kittanning borough. Valentine Neubert owned an undivided two-thirds and Phebe B. Colwell and Mary H. Hudson an undivided one-twelfth part each. The court entered a decree allowing the partition but debarred O. Montieth Gilpin from participation therein on the ground that he had no present or expectant right or interest in the land. Gilpin appealed.

      Error assigned was decree debarring Gilpin from participating in the partition.

      C. E. Harrington and M. F. Leason, for appellant.

      Frank P. Prichard, with him Orr Buffington and Oliver W. Gilpin, for appellees.
    January 6, 1908:
   Per Curiam,

The devises to testator’s children, one-half to the son Oliver “ and his heirs and assigns ” and the other half to the daughter “ and her heirs and assigns,” were in fee and the only question arises under the clause following, viz.:

“ But if either of my said children shall die without leaving lawful issue living at the time of his or her death, then and in that event, the part or share of the child so dying shall go to and vest in the survivor and his or her heirs and assigns. And if both of my said children shall die without leaving lawful issue living at the time of the death of the survivor of them, then in that event, the shares or estates of said children shall go to and become vested in my nephew Montieth Gilpin and his heirs and assigns. But if it shall so happen that my said nephew Montieth Gilpin shall also die without leaving lawful issue living at the time of his death, then and in that event, I give, devise and bequeath the said lands, tenements, property and estate to my sister-in-law Elizabeth McConnell, and her heirs and assigns.”

The general rule is that after an absolute devise in fee a provision that in case of the death of the devisee without issue, or without issue living at the, time of his death, or similar phrase, then over to another, is not a limitation or curtailment of the prior devise but is alternative or substitutionary and to take effect only on the death of the first devisee in the lifetime of the testator : Morrison v. Truby, 145 Pa. 540; McAlpin’s Estate, 211 Pa. 26. There is nothing in the will to indicate an actual intent of this testator inconsistent with the rule.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Kittanning Borough v. Consolidated Natural Gas Company, Appellant.

      Taxation — License tax — Municipalities—Boroughs—Natural gas company — Police power.

    A borough has the power to levy an annual mileage license tax on the pipes and mains of a natural gas company maintained within the limits of the borough.
    Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479, distinguished.
    Argued Oct. 17, 1907.
    Appeal, No. 70, Oct. T., 1907, by defendant, from judgment of C. P. Armstrong Co., March T., 1906, No. 154, on verdict for plaintiff in case of Kittanning Borough v. Consolidated Natural Gas Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the amount of a license tax.
    The ordinance of the borough of Kittanning under which the tax was levied was as follows:
    “ Section 1. That every Artificial Gas Company, Natural Gas Company, Water Company’s or other Company’s mains and pipes within the Borough of Kittanning, shall be inspected by the Police department of the said borough, at least once in every year, that the same may be kept in safe and proper condition.
    “ Section 2. That each mile of pipes or mains, laid or maintained, within the limits of said borough shall be liable to an annual license fee of thirty ($30.00) dollars for each and every mile.
    “ Section 3. That said license fee shall be paid to the treasurer of said borough, on or before the first day of October of each year, who shall issue his receipt therefor, showing the number of miles of pipes and mains, for which the license is paid.”
    Yerdict for plaintiff for $1,756.80.
    The court subsequently refused to enter judgment for defendant non obstante veredicto, and directed judgment to be entered on the verdict.

      Error assigned was the order of the court.

      Orr Buffington, with him O. W. Gilpin, for appellant.
    The ordinance under which suit is brought is of itself and aside from all general reasoning applicable to the legality of similarly purposed ordinances a direct annual tax levied upon specific personal property. It does not even assume the garb of a so-called license privilege.
    It will also be noted that this tax is levied upon each mile of pipe. A company operating less than one mile of pipe would be exempt; therefore the tax is not uniform upon the same class.

      H. A. Heilman, with him R. A. McCullough, for appellee.
    The tax was lawful: Kittanning Borough v. Kittanning Consolidated Natural Gas Co., 26 Pa. Superior Ct. 355; New Hope Borough v. Postal Telegraph Cable Co., 202 Pa. 532; Allegheny City v. Gas Co., 172 Pa. 632; Allentown v. Western Union Telegraph Co., 148 Pa. 117; Chester v. Phila., Reading & Pottsville Telegraph Co., 148 Pa. 120; Chester v. Western Union Telegraph Co., 154 Pa. 464; Phila. v. American Union Telegraph Co., 167 Pa. 406.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

In disposing of this case it is only necessary to indicate the clear distinction between the case of Pittsburg Railways Co. v. Pittsburg, 211 Pa. 479, and the earlier cases of City of Allentown v. Western Union Tel. Co., 148 Pa. 117, New Hope Borough v. Postal Tel. Cable Co., 202 Pa. 532, and Taylor Borough v. Postal Tel. Cable Co., 202 Pa. 583, with which the former is supposed to conflict. The case of Railways Company v. Pittsburg, supra, decided that a municipality is without authority to levy and assess a tax upon the tracks of a street railway within the corporate limits; that the tax which the city in that case was attempting to collect, was not a tax upon a licensed privilege levied in the exercise of the police power of the city for public purposes, but was distinctively a tax upon the property of the company for purposes of general revenue, and, therefore, could not be sustained. In the ordinance that provided for the levying of the tax it ivas designated as a license tax; but,” said Mr. Justice Brown in the opinion delivered, ££ no matter what the municipal authorities call it, the question is, what is it ? ” He then proceeds, “ The tracks of a street railway company are as muela its property as are its power houses, car barns, or repair shops; and, if so, could it be seriously argued that an annual tax of twenty cents per lineal foot on a car barn would not be an annual tax on the property, no matter by what name called, especially if to be collected for the general revenue purposes of the municipality ? Manifestly it would be such a tax, and such is the character of the tax which the appellant would impose on the tracks of the appellee.”' The decision in that case is made to rest definitely and distinctly upon the fact that the thing there subjected to be taxed was property, and that the tax derived was for general revenue. In the cases with which this is supposed to conflict, as in the present case, the thing subjected to the tax or fee is the license privilege allowed in connection with the streets of the borough, and the money realized thereby is to enable the municipality,'without cost to itself, to discharge the duty it owes to the public of exercising proper and reasonable surveillance and inspection with respect to the manner in which the company is exercising its privileges. That such an exercise of power is within the right of the municipality has been decided again and again, and the case of Pittsburg Railways Company v. Pittsburg, 211 Pa. 479, asserts nothing to the contrary. The cases in which this right has been upheld are cases where the license tax was exacted for telegraph poles on the public highway, and the tax was laid upon the poles and the wires of the company. It would seem to be utterly without reason to say that a municipality may exact a license tax on the poles and wires of a telegraph company, but may not exact it on the pipes and mains of a water company. The logic that allows it in the one case would compel it in the other. Indeed, considering the frequency with which the public streets are necessarily interfered with by water companies in laying, relaying, and repairing its pipes and mains, there would seem to be much greater reason for the exercise of this right in connection with such companies than with telegraph companies, since the frequency of the disturbance by the former would evidently require a stricter surveillance to secure the safety and convenience of the general public.

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


author: Mr. Justice Potter,

text:
    Wright, Appellant, v. Nulton.

      Statute of frauds — Memorandum in writing- — Parol evidence — Will— Parent and child — Description of land — Contract.
    In order to take a parol contract for the sale of lands out of the operation of the statute of frajuds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.
    Evidence of possession taken before an alleged parol contract for the sale of land is not sufficient to establish part performance. Such possession must be taken under and in pursuance of the contract, and it must be maintained as it is taken.
    The possession necessary to take a parol contract for the purchase of land, out of the statute, must be taken and maintained under and in pursuance of the contract, and must be exclusive in the vendee.
    Where an alleged parol contract of sale is between a parent and son, the evidence of the contract must be clearer and stronger than that of a similar contract between strangers, and the evidence to support it must be direct, positive, express and unambiguous. Not only must the terms and the condition of the contract and its subject be well and clearly defined, but the contracting parties must have been brought together face to face.
    In an action of ejectment, where the plaintiffs claim under a late will of their grandmother, and the defendants, a son of the decedent and his wife claim under an alleged parol contract by which they were given the land in controversy in consideration of the support and maintenance of the mother, a will and codicil made subsequent to the alleged parol contract are not memorandums in writing sufficient to take the parol contract out of the operation of the statute of frauds, where it appears that the estate specified in these papers was different from that claimed by the parol contract, that the consideration was also different, and that the will in favor of the defendants was entirely inconsistent with the contention that a parol gift of the land had been made to the defendants.
    Argued Oct. 17, 1907.
    Appeal, No. 173, Oct. T., 1907, by plaintiffs, from judgment of C. P. Armstrong Co., June T., 1904, No. 198, on verdict for defendant in case of William Wright and George S. Wright v. Daniel L. Nulton and Laura G. Hulton.
    Before Mitchell, C. J., Fell, Blown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for land in the second ward of Kittanning borough.
    Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Errors assigned among others were (17) in refusing binding instructions for plaintiffs, and (24) in ordering judgment to be entered upon the record.

      H. A. Heilman and H. L. Golden, with them Rush Fullerton, for appellants.
    The defendants being in possession prior to the making of the alleged contract and no change in possession having taken place in pursuance of the said agreement, it matters not how clearly they may prove the terms of the contract, or the consideration paid, or the improvement made by them, the contract is void under the statute of frauds and cannot be enforced: Eargood’s Estate, 1 Pearson, 399; Chadwick v. Felt, 35 Pa. 305; Christy v. Barnhart, 14 Pa. 260; Hart v. Carroll, 85 Pa. 508; Myers v. Byerly, 45 Pa. 368; Moyer’s Appeal, 105 Pa. 432; Matthews v. Matthews, 11 Pa. Superior Ct. 381; Erie, etc., R. R. Co. v. Knowles, 117 Pa. 77.
    The writing must describe the land: Smith v. Tuit, 127 Pa. 341; Shroyer v. Smith, 204 Pa. 310.
    The case should have been submitted to the jury: Robertson v. Robertson, 9 Watts, 32; Myers v. Black, 17 Pa. 193; Moore v. Small, 19 Pa. 461; Anderson v. Brinser, 129 Pa. 376; Schuey v. Schaeffer, 130 Pa. 16; Sample v. Horlacher, 177 Pa. 247.

      R. A. McCullough, with him, W. J. Christy, for appellees.
    Part performance takes the case out of the statute: Browne on Statute of Frauds, sec. 463; Hancock v. Melloy, 187 Pa. 371; Riggles v. Erney, 154 U. S. 244 (14 Sup. Ct. Repr. 1083); Smith v. Tuit, 127 Pa. 341; Moore v. Small, 19 Pa. 461.
    The written memorandum was sufficient: Smith v. Tuit, 127 Pa. 341; Myers v. Kingston Coal Co., 126 Pa. 582; Hill v. Canfield, 56 Pa. 454; O’Hara v. Richardson, 46 Pa. 385; Home Building & Loan Assn. v. Kilpatrick, 140 Pa. 405; Jacob’s Est., 140 Pa. 268; Moore v. Small, 19 Pa. 461.
    Daniel and Laura Nulton claim title to the land in dispute by entireties. The parol purchase was made by both, and the writings offered as a memorandum thereof corroborate this: Bramberry’s Est., 156 Pa. 628; Boyertown Nat. Bank v. Hartman, 147 Pa. 558; Stuckey v. Keefe, 26 Pa. 397.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

This was an action of ejectment for a lot of ground and improvements, in Kittanning, Armstrong county. Both parties to the suit claimed under Mrs. Margaret R. Nulton. The plaintiffs were her grandsons, and claimed under a devise in her will. The defendants Daniel L. Nulton, and Laura G., his wife, were the son and daughter-in-law of Mrs. Nulton, and claimed under an alleged parol sale made by her in consideration of services to be performed by them for her benefit. The question at issue, was whether there was such a sale or not. It appears from the evidence that the property in question was the homestead of Mrs. Nulton and her husband, John R. Nulton, prior to 1875. In that year Daniel L. Nulton, who was living with his parents, ivas married, and brought his wife to live with them. In 1878 the father died, and Daniel and his wife continued to live in the homestead with the mother. The defendants claim that after the father’s death, Mrs. Nulton gave them the homestead, in consideration of their agreement to take care of her during the remainder of her life; that Daniel was to attend to the business affairs of the mother, and the wife was to care for her in the house, and do the housekeeping. There was testimony tending to show that defendants were in possession of the premises in controversy from the time of the alleged sale until this suit was brought. The mother continued to reside at the homestead until September 17, 1902, when being ill, she was taken to the home of her daughter, Mrs. Wright, where she remained until her death in March, 1904. She was then in her ninetieth year. On February 1, 1893, Mrs. Nulton made a will, by which she gave to her son Daniel the homestead property in trust for the use of himself and his wife during their lives, with remainder to his children and, in default of issue, to the issue of the testatrix’s other children. She also devised other real estate to her son Daniel. On June 13, 1899, she made a codicil to her will, by which she gave sixty-six feet of the lot to her son and his wife absolutely. On July 3, 1903, after she had removed to Mrs. Wright’s house, she made a new will, expressly revoking all former wills, by which she gave the homestead property absolutely to William Wright and George S. Wright, her grandsons, the present plaintiffs. This will was ratified by a codicil made on October 28, 1903.

The defendants offered the original will and codicil in evidence as they stated, “ for the purpose of corroborating the parol gift and agreement proven by the defendants in this case, and as being a writing made by the donor subsequently to the parol gift and in pursuance thereof.” They were admitted subject to exception, and their admission forms the subject of the first and second assignments of error.

The court submitted to the jury the question as to whether there was a parol gift as claimed, and whether defendants had performed their part of the agreement. The jury found for defendants, and judgment was entered on the verdict. The substance of the contention here made by the plaintiffs on appeal, is that defendants offered no evidence sufficient to prove title in them, and that the trial judge should have held as matter of law, that the plaintiffs were entitled to recover. We have then to consider (1) whether the evidence offered by defendants was sufficient to establish a parol sale of the land, and (2) whether the revoked will and codicil were such writings as would take the alleged sale out of the statute of frauds.

In the first place it is apparent that the boundaries of the land alleged to have been given were not defined. At the time the agreement was said to have been made, the homestead property had a frontage of 135 feet on Market street. Ho claim for all of this is made at the present time by defendants, nor did the contract specify how much of it was included. In Hart v. Carroll, 85 Pa. 508, Justice Woodward, said (p. 510): In order to take a parol contract for the sale of lands out of the operation of the statute of frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust. These rules have been settled by along series of authorities.” So also in Sample v. Horlacher, 177 Pa. 247, it was held that an alleged parol sale from mother to son, where no boundaries were defined by the contract, was not an exception to the statute of frauds, although the son had entered into possession, and made improvements.

In the present case it appears that the defendants were clearly living upon the property before the alleged contract was made, and there was no visible change of possession in pursuance thereof. The subsequent possession was merely a continuation of that previously existing. This is not sufficient under the doctrine of Dougan v. Blocher, 24 Pa. 28, for it was there held that evidence of possession taken before the alleged parol contract, is not sufficient to establish part performance. Justice Woodward, said (p. 34): “ Possession, to be part performance, must be taken under and in pursuance of the contract, and it must be maintained as it is taken; and unless accompanied by such improvements and arrangements as will not reasonably admit of compensation in damages, is not, even when so taken and maintained, such part performance of a parol contract as will take it out of the statute of frauds.” And in Christy v. Barnhart, 14 Pa. 260, Justice Bell said : “ It is not to be disputed, at this time of day, that to withdraw a parol sale of lands from the blighting effects of the statute of frauds, there must be an open and absolute possession taken in pursuance of the contract, with a view to the performance of it. It is consequently a settled rule that a parol sale to a tenant in possession is within the statute, though his possession be afterwards continued, because there is no change of possession, in execution of the contract.”

It further appears from the evidence in this case that whatever the character of the possession of the property was, which the vendees had subsequent to the parol sale, it was not exclusive, but was exercised jointly with the mother. This does not meet the test laid down by the decisions. For instance, in Chadwick v. Felt, 35 Pa. 305, the court below affirmed the point submitted by the plaintiff, “ that the position necessaiy to take a parol contract for the purchase of land out of. the prohibition of the statute must be one taken and maintained under and in pursuance of the contract, and must be exclusive in the vendee.” Also one that if the vendee was in possession of the land in controversy prior to the alleged parol contract, “ and his subsequent occupancy was a mere continuance thereof, his purchase lacked an essential to give it validity as a parol contract.” Justice Strong said (p. 307): “ The points propounded by the plaintiff below were in strict accordance with the law, as it has repeatedly been declared in this court, and the court of common pleas could do nothing else than affirm them.”

And again in Bowers v. Bowers, 95 Pa. 477, Justice Sterrett said (p. 480): “ Exclusive possession taken and kept up in pursuance of the contract is an indispensable ingredient in every case. Hence it is held there cannot be a valid parol sale of land by one tenant in common to his cotenant in possession.”

Then, again, it will be remembered that the alleged parol contract of sale, upon which the defendants in this case rely, was between a parent and son. As this court said, in Ackerman v. Fisher, 57 Pa. 457: “ In such a case it has more than once been said that clearer and stronger evidence is required of the father’s intention to part with his dominion over, and ownership of, the property than is required in cases of parol contracts between strangers in blood. This is because a parent and child do not commonly deal with each other as they deal with strangers. . . . When an attempt is made to set up a parol contract of sale against a father, either by his son or one claiming under the son, the evidence of the contract must be direct, positive, express and unambiguous. Hot only must the terms and conditions of the contract and its subject be well and clearly defined, but it has been held that the .contracting parties must be brought together face to face. The witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence. A contract is not to be inferred from the declarations of one of the parties.” This case is followed with approval in Edwards v. Morgan, 100 Pa. 330; Burgess v. Burgess, 109 Pa. 312; Derr v. Ackerman, 182 Pa. 591.

We do not find in the present record any evidence of any contract made by Mrs. Multon when “face to face” with Daniel L. Multon, although it was to him alone that the devise was made in the subsequent will.

With regard to the second question here involved, as to the sufficiency of the will of 1893 to take the contract out of the statute of frauds, it will be noted that this action of ejectment was brought to recover possession of a lot of ground with a frontage of fifty-eight feet on Market street, and a depth of 112.5 feet. It is marked No. 2 on the plan attached to Mrs. Multon’s will, by which it was devised to plaintiffs. The will describes it as having thereon the house in which testatrix had resided.

The alleged parol sale as referred to in various places in the testimony, was of “ this homestead,” “ this property,” “ the old home,” “ the old homestead,” “ the homestead in Kittanning.” .But the amount of land to go with the homestead does not seem to have been defined in any of the declarations made by Mrs. Multon.

By the will of 1893 she devised to Daniel L. Multon a lot of sixty-six feet and one of forty-nine feet, both fronting on Market street, and the latter containing the homestead. The former is claimed by appellant to have been part of the homestead property, and Barclay Multon testified to that effect. These lots were devised to, Daniel L. Multon, not absolutely, but in trust for the use of himself during life and to his wife, if she survived him, during widowhood, with remainder to the grandchildren of testatrix.

By the codicil of 1899, exhibit “ 6,” the first lot, sixty-six feet in front, was given absolutely to Daniel L. Multon and Laura Multon, his wife. On July 23, 1903, Mrs. Multon conveyed for a nominal consideration this lot to Daniel L. Multon, who on the same day conveyed it to his wife. This lot is not included in the present suit. The will of 1893 also provided that, in addition to the forty-nine feet devised to Daniel L. JSTulton, he was to have an alleyway adjoining such lot, the width not being specified. His counsel claim that it was to be at least nine feet, which would make the fifty-eight feet included in the writ.

When we compare the terms of the alleged parol contract with the terms of the gift in the will, we find three material discrepancies, which are enough to prevent the will from being properly regarded as a memorandum in writing sufficient to take the contract out of the ban of the statute :

1. All the witnesses agree that Mrs. JSTulton stated that she had given the homestead to both Daniel and his wife, and they now claim to hold it as tenants by entireties, which would be the result of such a gift. But the devise in the will was to Daniel L. JSTulton alone. It was not absolute, but in trust for certain purposes. He was given the use of it for life, with use to his wife during widowhood, if she survived him. This was an entirely different estate from that claimed under the parol contract.

2. The consideration for the parol sale was the agreement of Daniel and his wife to care for Mrs. JSTulton, her business and her household affairs during the remainder of her life. But no such consideration appears in the will. On the contrary, the will states another and entirely different consideration. It says: “ In consideration that my son Daniel L. JSTulton shall and will undertake and continue to execute personally the trust hereby committed to him, he shall be allowed the free use,” etc.

It is manifest upon the face of the will, that the testatrix did not intend to give Daniel L. JSTulton and Laura G. JSTulton an estate by entireties in the property devised, or to give them any interest in consideration of their agreement to care for her and her business. The will, therefore, cannot be construed as a memorandum in writing of the alleged contract under which appellees claim, and it should not have been admitted in evidence. It had no force beyond that of a testamentary paper which has been revoked by a subsequent will.

3. In addition, the will is inconsistent with the contention that a parol gift was made by Mrs. JSTulton. By the will she asserts ownership of the property claimed to have been previously given by her to her son and daughter-in-law, and undertakes to dispose of it in a different way from the disposition alleged to have been made by parol. So the will, instead of establishing a parol contract, negatives the claim that it was written in pursuance of such a contract.

The cases relied upon by the court below were those of contracts to devise, and wills made in confirmation of those contracts. In view of the discrepancies between the terms of the parol agreement and the will, the present case cannot be considered as such an one.

“As to the question what the written agreement must contain, the general answer is, all that belongs essentially to the agreement, and more than that is not needed ; nor can parol evidence be received to supply anything which is wanting in the writing, to make it the written agreement on which the parties rely:” Parsons on Contracts (9th ed.) (1904), secs. 13, 14.
“Of the form of the agreement, it need only be said that it must be adequately expressive of the intent and obligation of the parties. It may be one or many pieces of paper; provided that the several pieces are so connected by mutual reference or otherwise, that there can be no uncertainty as to the meaning and effect of them all, when taken together and viewed as a whole. But this connection of several parts cannot be established by extrinsic evidence. If there is an agreement on one paper, and something additional on another, and a signature on another paper, that is not a written and signed agreement, unless these several parts require by their own statement the union of the other; for if they may be read apart, or in other connections, evidence is not admissible to prove that they were actually intended to be road together:" Parsons on Contracts (9th ed.) (1904), secs. 16, 17.
“If the agreement is defective, and the letter refers to a different contract from that proved by the opposite party, the letter cannot be adduced as evidence of the contract set up. The letter must be taken altogether, and if it falsify the contract proved by the parol testimony, it will not take the case out of the statute:” 1 Sugden on Vendors and Purchasers (8th Am. ed.) (1875), p. 207.
“In order to satisfy the statute, when the memorandum relied on consists of separate papers, which it is attempted to connect by showing from their contents that they refer to the same agreement, these separate papers must be consistent and not contradictory in their statement of the terms, for otherwise it would be impossible to determine what the bargain was, without the introduction of parol testimony to show which of the papers stated it correctly:” Benj. on Sales (7th Am. ed.) (1899), sec. 223, p. 194.
“The memorandum by itself, or by reference to another writing, must show the whole contract, namely, the promise, the parties, the subject-matter, the price or consideration, and the terms or conditions. It has been said that, to satisfy the statute, the memorandum must contain within itself, or by some reference to other written evidence, the names of the vendor and vendee, and all the essential terms and conditions of the contract, expressed with such reasonable certainty as may be understood from the memorandum and other written evidence referred to, if any, without any aid from parol testimony:'” 1 Reed on Statute of Frauds (1884), sec. 398.
The general rule is that it (the memorandum) must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties:” Browne on Statute of Frauds (5th ed,) (1895), sec. 371.
“In the first place, assuming that there is a completed oral contract, the note or memorandum must contain the terms of the contract as completed. If it tend to falsify the contract sued upon, as by showing conditions and stipulations that have not been made to appear, or if, referring to the contract, it annex conditions to it or otherwise make variations in it, it has no effect as a memorandum of the contract alleged. In short, where the plaintiff proposes to rely upon a written admission of the contract, with the defendant’s signature, he must produce such a writing as will tend to prove and not disprove the existence of the contract alleged, as a concluded agreement between the parties:” Browne on Statute of Frauds (5th ed.) (1895), sec. 371 a.

In the present case, we do not find that the will contains the contract sought to be enforced. The testatrix disposed of the property which is the subject of the contract, in a manner quite different from that covered by the terms of the alleged parol agreement.

The seventeenth and twenty-fourth assignments of error are sustained, and the judgment is reversed, and it is ordered that judgment be entered in favor of the plaintiffs in the court below.


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    Leechburg Borough v. Leechburg Water Works Company, Appellant.

      Water companies — Water rates — Boroughs—Water for fire protection.

    In a proceeding between a borough and a water company to determine what is a proper compensation for the latter for water furnished to the borough for purposes of fire protection, where it is assumed that the water company derives adequate compensation for its whole outfit on the basis it has established, the only question to determine is, does the charge which the company proposes to exact for furnishing the borough with water for fire purposes, measured by the number of hydrants employed, or by the rule by which the company has fixed its general schedule of rates, bear reasonable proportion to the rates established for other demands?
    It is wholly impracticable to determine by mathematical calculation based on cost or value of a water plant, and the expense of operating the same, whether a single rate charged by the company for a specific service, such as a supply of water to a borough for fire protection, distinct from the other hundred or more charges for as many different services, is in itself compensatory to the company. To attempt it would be carrying what has come to be known as the segregating process in questions of this kind beyond all reasonable limit. It is to be assumed that in framing its general schedule of rates, the water company has been guided by some rule or principle which would enable it to be just to itself, and at the same time enable it with reasonable approximation to make its charges for its varying services conform to some standard which would secure to the consumers reasonable uniformity in cost.
    A water company demanded from a borough an annual compensation of $3,000 for water furnished for fire protection. It appeared that the total income of the company was $6,693.22, and that this was derived from a population of 6,000. The court below reached the conclusion, by comparison with other rates charged by the company, and from considering the number of hydrants employed, that an annual rate of $1,100 for as many hydrants not exceeding fifty as the borough chose to employ, with an additional charge of $25.00'for each extra hydrant, was fair and reasonable alike to the company and the borough. Held, that the decree of the court below should be sustained.
    Argued Oct. 18, 1907.
    Appeal, No. 192, Oct. T., 1907, by defendant, from decree of C. P. Armstrong Co., Dec. T., 1906, No. 19, on bill in equity in case of Leechburg Borough v. Leechburg Water Works Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were various rulings on evidence, findings of fact, conclusions of law, and the decree in favor of the plaintiff.

      Walter J. Guthrie, with him George W. Herriott, for appellant.
    The court had no jurisdiction to make the decree in controversy: Brymer v. Butler Water Co., 172 Pa. 489; Du Bois Borough v. Du Bois Water Works Co., 176 Pa. 430; Com. v. Potter County Water Co., 212 Pa. 463.
    The presumption is that the rate established by the corporation is reasonable, and the burden of proof is upon the complainant: Munn v. Illinois, 94 N. S. 113; Com. v. Russell, 172 Pa. 506.
    Regulation is not confiscation: New Memphis Gas & Light Co. v. Memphis, 72 Fed. Repr. 952; San Diego Land, etc., Co. v. National City, 174 N. S. 739 (19 Sup. Ct. Repr. 804).
    A reasonable vote was determined by the company: Smyth v. Ames, 169 N. S. 466 (18 Sup. Ct. Repr. 418); Stanislaus County v. San Joaquin, etc., Canal & Irrigation Co., 192 U. S. 201 (24 Sup. Ct. Repr. 241); Brymer v. Butler Water Co., 179 Pa. 231.
    A borough or township is under no legal duty to provide a supply of water for the extinguishment of fires: Thompson v. Springfield Water Co., 215 Pa. 275; Grant v. City of Erie, 69 Pa. 420; Carr v. Northern Liberties, 35 Pa. 324.

      M. F. Leason, with, him C. O. Morris and Rush Fullerton, for appellee.
    We contend that the case of Brymer v. Butler Water Company, 179 Pa. 231, does not make an absolute rule that the water company must have a sufficient return to pay a net profit to the investors after the expenses, and provide for sinking fund, etc., but taking the whole case, it is but a fair construction to say that they are only entitled to such returns if their plant will earn it.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

This is a controversy between the burgess and town council of the borough of Leechburg and the Leechburg Water Works Company. The latter has been for years furnishing the borough of Leechburg with wmter for purposes of fire protection, under contract, for the consideration of $500 per annum. This contract having expired in August, 1906, the company demanded for the future an annual compensation of $3,000, and threatened that unless this rate was accepted by the borough, the service to the borough for this particular purpose would be discontinued. The borough then offered to pay the company $22.00 for each of the thirty-four hydrants then in use and $25.00 for each additional hydrant. This offer having been declined by the company, the borough thereupon filed its bill for an injunction to restrain the company from discontinuing its supply of water, and asking the court to fix a reasonable rate for the service. The amount of testimony taken in the case may be judged from the fact that we have before us a record of 500 pages. It is only the smallest part of the evidence that is relevant, for the reason that the effort seems to have been to apply to the determination of the issue the rule indicated in Brymer v. Butler Water Company, 179 Pa. 231, which, while unquestioned as an authoritative rule, is inapplicable here. The court found that a proper and reasonable charge for supplying water through as many hydrants as the borough would see fit to construct, not exceeding fifty, would be $1,100 per annum, and enjoined the water company from discontinuing the service. From this decree the water company has appealed. By far the greater part of the testimony taken relates to the cost of construction and the value of the appellant’s plant, the expense and charges incident to the operation of the same, and such other matters as were supposed to furnish a basis of calculation to determine whether the rate fixed by the court ivas remunerative to the company. Of the eighty-eight assignments of error there are but few, if any, which do not relate to rulings of the court in connection with offers of evidence in regard to such matters, or the findings of- the court with respect thereto. It is not possible to consider each of these assignments, nor is it necessary. Notwithstanding a wrong method was applied, and most of the evidence is in consequence irrelevant, there is yet sufficient in the case to enable us to reach a conclusion as to the correctness of the court’s decree. It is wholly impracticable to determine by mathematical calculation, based on cost or value of a water plant, and the expense of operating the same, whether a single rate charged by the company for a specific service, such as a supply of water to a borough for fire protection, distinct from the other hundred or more other charges for as many different services, is in itself compensatory to the company. To attempt it would be carrying what has come to be known as the segregating process in questions of this kind beyond all reasonable limit. It is to be assumed that in framing its general schedule of rates, the water company has been guided by some rule or principle which would enable it to be just to itself, and at the same time enable it with reasonable approximation to make its charges for its varying services conform to some standard which would secure to the consumers reasonable uniformity in cost. In the nature of things it would be impossible to determine on the basis of the company’s investment, whether any specific charge for any single service, distinguishable from all others, such as the rate charged for bath tubs, or that for steam engines, or that for soda fountains, standing out of relation to the other hundred different rates charged, is in itself compensatory to the company. The company having fixed a rate for each kind of service, whether any particular rate is compensatory can only be determined by comparison with the other rates charged, having regard to the amount of water furnished, or the facilities employed in connection with each. Assuming that the water company derives adequate compensation on the basis it has established, the only question to be determined in such case is, does the charge which the company proposes to exact for furnishing the borough with water for fire purposes, measured by the number of hydrants employed, or by the rule by which the company has fixed its general schedule of rates, bear reasonable proportion to the rates established for other demands. There was ample in the case to warrant the conclusion reached by the court below, according to the standard we have indicated, that an annual rate of $1,100 for as many hydrants not exceeding fifty as the borough chose to employ, with an additional charge of $25.00 for each extra hydrant, was fair and reasonable alike to the company and the borough. It appears that the entire annual revenue of the company from all sources is $6,693.22. This is derived from a population of 6,000. Manifestly a charge of $3,000, a sum little less than one half of the company’s income, for a supply of water for the one purpose of fire protection, would be out of all proportion to the other rates established by the company. Such service may not be measured by the amount of water consumed, but even measured by the facilities employed, that is to say, the number of hydrants devoted to the purpose, considering the probable infrequency of their use, and the possibility that they would, not be called into use at all, the rate demanded by the company must still be regarded as unreasonable.

The assignments of error are overruled, the appeal is dismissed at cost of appellant, and the decree is affirmed.


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    Shannon v. McHenry, Appellant.

      Practice, G. P. — Judgment non obstante veredicto — Evidence—Act of April 22, 1905, P. L. 286.
    It was not the intent of the Act of April 22, 1905, P. L. 286, to disturb the line of distinction between the province of the court and that of the jury, and no judgment can be entered under the act against the verdict except where binding directions would have been proper at the close of the trial.

      Mortgage — Assignment of mortgage — Declaration—Evidence—Terretenant.

    Where a mortgagee assigns all his interest in a mortgage to another person, and at the same time delivers the mortgage and the bond accompanying it to the assignee, a statement made by the mortgagee to a person proposing to purchase the mortgaged premises, after he had parted with all interest in the mortgage as well as the indicia of ownership, to the effect that the mortgage was given for the same debt that was secured by two judgments which were prior liens on the property, is not binding upon the assignee of the bond and mortgage as against the purchaser who had made no inquiry as to whether the mortgagee owned the mortgage at the time he made the statement.
    Argued Oct. 18, 1907.
    Appeal, No. 86, Oct. T., 1907, by Anna McHenry, from judgment of C. P. Clarion Co., Nov. T., 1905, No. 11, for plaintiff non obstante veredicto in case of I. M. Shannon v. Kate Conlon and Farrel Conlon, Defendants Mortgagors, and Anna McHenry, Terre-tenant and owner of mortgaged premises.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage.
    At the trial a verdict was rendered in favor of the defendant subject to question of law reserved.
    On a motion for judgment non obstante veredicto, Wilson, P. J., filed the following opinion :
    The undisputed testimony shows the mortgage upon which this suit was brought, as well as the penal bond in the sum of $3,000 conditioned upon the payment of $1,500, accompanying the mortgage, was assigned and delivered, before maturity, for a bona fide consideration, to the present plaintiff, I. M. Shannon, and was a valid and existing debt as part of the purchase money of the real estate sold and conveyed by W. E. Eshelman to Kate Conlon, and that Anna McHenry became a terre-tenant through the purchase of her husband, W. B. McHenry, acting as her agent from Kate Conlon of the real estate bound by the lien of mortgage.
    If the evidence now on file in this case is to he believed, McHenry assumed the payment of the mortgage in suit as well as all of the other liens against the property at the time of the purchase by him from Mrs. Conlon.
    Mr. Shannon held a pre-existing debt against Mr. Eshelman and the latter assigned to the former the bond and mortgage now in dispute. The testimony of Mr. Shannon shows that he accepted, this assignnaent as a payment and entered credit for the same and did not hold it as collateral, although he retains possession of the original note against Eshelman. Had the instrument been negotiable and assigned for value before maturity, without notice, and whether for a present consideration, in payment of a pre-existing debt, or as a collateral, the assignee would hold it free and discharged of any defense or rights of the maker. When the instrument assigned is a nonnegotiable one, a bona fide assignee for value before maturity takes it discharged of the equities of persons not parties to it of which he had no notice, but takes it subject to all of the equities between the original parties. The acceptance by Mr. Shannon of the assignment of the debt for $1,500, re-represented by the bond and mortgage in this suit, as a payment, and not as collateral, and an entry of credit for the same on the note which he held against Mr. Eshelman, would tend to rebut any presumption that he held it as collateral, and would be a sufficient consideration to support the assignment. The assignee gave credit to the bond and mortgage as recorded and relied upon it. iso proof has been offered to show that the bond and mortgage was not just what it represented to be on its face and, therefore, the mistaken or fraudulent declarations made by the mortgagee in direct contradiction of the plain terms of the mortgage, after he had parted with all of his interest therein, could not be held to estop the assignee from obtaining a judgment on the scire facias sur mortgage against the terre-tenant, and especially so when a judgment has been previously obtained thereon against the mortgagor. Otherwise it would permit persons, who were so disposed, to fraudulently enter into a combination to obtain money from an innocent assignee of a valid mortgage. Even if the assignment was held as collateral it is not clear that the mistaken declarations of the assignor thereafter made, could be used as an estoppel against the assignee. The assignment of a mortgage may be recorded, but no statute has been cited which requires it to be done.
    At the time the mistaken declarations were alleged to have been made by Mr. Eshelman over the telephone from Sharon to Clarion, a distance of eighty miles, to Mr. Sloan, and alleged to have been corrected by him the same day, and before the transaction was closed np so that anybody could be injured thereby, it is not shown that he represented or declared that he was either the holder or owner of the bond and mortgage, and no inquiry was made of Mr. Eshelman to ascertain if he was the owner of the bond and mortgage at that time. If the agent of the terre-tenant relied upon the record as to this and presumed that he was still the owner for the reason that no assignment to anyone for the same had been recorded, still it would be the duty of a man of ordinary caution and prudence to definitely inquire as to this, and rely upon the mortgage as recorded and not upon the loose verbal declarations in contradiction thereof. Had there been any evidence offered to-show that the mortgage in suit was not just what it purported to be, and was not a valid existing debt as between the mortgagor and the mortgagee, then, of course, the assignee would stand in the same position as the mortgagee; or had the mortgagor or terre-tenant, after the assignment and without actual or record notice thereof, actually paid the mortgagee the bond secured by the mortgage, obtained possession of the bond and thereby extinguished the debt, an entirely different question would be presented. If the bond was paid and delivered' to the mortgagor or terre-tenant by the mortgagee, the latter would be held to have received the debt for the use of the assignee. As between the assignee and outside parties it is really immaterial whether the admittedly mistaken declarations, as alleged to have been communicated b.y the mortgagee to the agent of the terre-tenant, were made before or after the assignment to the present plaintiff, as he took it clear of the equities of any outside parties.
    If the plaintiff, could not recover a judgment in this suit for the reason that it did not represent a valid existing debt at the time it was assigned to him by Mr. Eshelman, it is clear that the assignee thereof could recover a judgment in an action against the assignor notwithstanding the fact that he had entered a credit for the same on the original note of the assignor, or had even paid to him the cash for the same, but should the defense, which the terre-tenant set up at the trial, be successful, it is not so clear that Mr. Shannon would be entitled to recover the debt from Mr. Eshelman. The mis' taken declarations were made after the assignment.

      There is ample evidence now on file to show that McHenry had sufficient notice that 1. M. Shannon owned the Eshelman first mortgage for $1,500 and interest, and that he assumed payment of it as part of the purchase money. Statements numbers one and two hereto attached and made part hereof, are made up from what the testimony shows as to the items of the purchase money on the first transaction between Eshelman and Conlon and the second transaction between Kate Conlon and W. B. McHenry.
    An estoppel is odious. It is only invoked to prevent wrong and injury, and where it is necessary to sustain the cause of justice, but never to work a manifest injustice.
    In connection with what has herein before been stated reference is made to the following cases: Bigley v. Jones, 114 Pa. 510; Sweetzer v. Atterbury, 100 Pa. 18; Rorabaugh v. Schrubb, 25 Pa. C. C. Rep. 573; Hamilton v. Neel, 7 Watts, 517; McCurdy, Assignee of Smith, v. Leslie, Mortgagor, and Johnson Terre-tenant, 2 W. N. C. 273, and Roberts v. Halstead, 9 Pa. 32.
    And now April 2, 1907, the plaintiff’s first point for binding instructions is affirmed and the evidence taken upon the trial is directed to be certified and filed of record, as per Act of April 22, 1905, P. L. 286, and the protkonotary is directed to enter judgment non obstante veredicto, upon payment of the jury fee, in favor of the plaintiff and against Amna MeLIenry, terre-tenant (and to liquidate the judgment as against Kate Conlon and Farrel Conlon, defendants), for the sum of $1,957.25, with interest hereon from September 4, 1906, being the amount of the mortgage, $1,500, and interest thereon from the date thereof to the date of the verdict.

      Error assigned was the order of the court.
    W. A. Hindman, with him J. W. Hutchinson and W. W. Hindman, for appellant.
    An assignee of a mortgage, though allowed to sue in his own name, takes it subject to all the equities in favor of the mortgagors existing at the time of the assignment: Horstman v. Gerker, 49 Pa. 282.
    The assignee of a mortgage must give notice of the assignment if he would protect himself against subsequent payments made to his assignor: Foster v. Carson, 159 Pa. 477; Bigley v. Jones, 114 Pa. 510.
    Since the Act of April 9, 1849, P. L. 524, the recording of an assignment of a mortgage is a duty which an assignee owes to subsequent purchasers and assignees: Sharpe v. Hutchinson, 1 Kulp, 405.

      John S. Shirley and J. T. Maffett, with them J. W. Maffett, for appellee.
    The Conlons were defendants in the case, and judgment had been taken against them by default. Let us concede that Eshelman was the apparent owner of the mortgage on the record, and that W. B. McHenry had no knowledge of the assignment to Shannon in 1901. It was simply the plain duty of McHenry to look at the record and read the mortgage, and not rely on vague and indefinite statements over the telephone, a distance of eighty miles, which contradicted the plain terms of the mortgage: Hamilton v. Neel, 7 Watts, 517; McCurdy v. Leslie, 2 W. N. C. 273; Roberts v. Halstead, 9 Pa. 32; Bigley v. Jones, 114 Pa. 510; Sweetzer v. Atterbury, 100 Pa. 18; Rorabaugh v. Schrubb, 25 Pa. C. C. Rep. 573; Williams v. Graver, 152 Pa. 571.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

The main ground of the appellant’s contention is that judgment was improperly entered for the plaintiff non obstante veredicto, because the material facts were in dispute and involved the consideration of oral testimony and the credibility of witnesses. If this was the case the judgment is erroneous. It is not the intent of the Act of April 22, 1905, P. L. 286, to disturb the line of distinction between the province of the court and that of the jury, and no judgment can be entered under the act against the verdict except where binding directions would have been proper at the close of the trial: Dalmas v. Kemble, 215 Pa. 410; Bond v. Penna. Railroad Co., 218 Pa. 34.

The mortgage in suit was a purchase money mortgage given by Conlon to Eshelman on August 6, 1901, recorded the same month, and transferred to the plaintiff by assignment dated October 25,1901, and recorded September 29,1905. McHenry, the terre-tenant, who alone made defense, purchased the property from Conlon in June, 1903. The ground of her defense was that before paying the purchase money, her counsel, representing her in the purchase, was told by Eshelman that the mortgage was given for the same debt that was secured by two judgments which were prior liens on the property, and that acting on the belief that this was the case, a settlement was made with Conlon.

There was no attempt at the trial to prove that the mortgage and the judgments were for the same debt. The whole controversy was whether the terre-tenant had acted on a statement in relation to them made by Eshleman to anyone representing her in the matter. The issue of fact was submitted to jury, and the finding was in favor of the defendant.

If the question answered by the verdict were decisive of the plaintiff’s right to recover, a judgment non obstante could not properly have been entered, because there was a dispute as to the facts which it was the province of the jury to decide. Eut there was no dispute that Eshelman had parted with all interest in the mortgage by assignment and delivery of it, and the bond it was given to secure before the terre-tenant took title. The record does not fully sustain the statement made in the opinion of the court that the undisputed testimony showed this. There was no direct testimony on this subject, but it was not in dispute that an assignment had been made October 25, 1901, as recited in the writ of scire facias, although a later assignment was executed in 1905. The trial was apparently proceeded with on the assumption, the correctness of which has not at any time been questioned, that the mortgage was assigned in 1901 by an indorsement on the back thereof, and that a second assignment bearing the same date as the first was executed in 1905, because the first had not been acknowledged and could not be recorded. The case having been tried on this assumption, it should bo considered on review as if the proofs had been made. It would be idle to send it back in order that proof should be made of facts not really in dispute.

The first assignment of the mortgage operated as a valid transfer. Eshelman had delivered the bond and mortgage with the assignment, and had parted with all interest as well as the indicia of ownership, and he was not even asked, in the conversation alleged to have taken place, whether he then owned the mortgage. Under these circumstances the statement imputed to him could not in any manner affect his assignee.

A finding of all the disputed facts against the plaintiff did not defeat his right to recover; judgment was properly entered for him, and it is now affirmed.


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    Sayers v. Pollock, Appellant.

      Guardian and, ward — Dealing with ward’s real estate — Unauthorized act of guardian — Consent of ward — Adverse possession.

    A guardian cannot by his own unauthorized act destroy the inheritance in the land of his ward; the court may not authorize him to do so except in the statutory way for such reasons as the statute allows; nor can the ward authorize the guardian to do what the ward cannot of herself do.
    A parol exchange of lands between a mother and her daughter, sixteen years of age, with the consent of the guardian, and under a promise by the daughter upon her coming of age to execute and deliver a deed to her mother, is wholly invalid against the estate of the daughter who died before she reached the age of twenty-one years. Where, in such a case, the mother enters into possession of the land and holds it for more than twenty-one years after her daughter’s death, it is for a jury to determine under proper instructions from the court whether such facts exist as constitute in law title by adverse possession in the mother.
    Argued Oct. 21, 1907.
    Appeal, No. 119, Oct. T., 1907, by defendant, from judgment of C. P. Greene Co., Sept. T., 1902, No. 49, on verdict for plaintiff in case of B. F. Sayers and R. A. Sayers et al. v. J. B. Pollock.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for a lot of land in the borough of Waynesburg.
    Before Kooser, P. J., specially presiding.
    The court charged as follows :
    I have concluded to affirm the first point of the plaintiffs and this will relieve you from the consideration of the facts.

      I prefer, however, to briefly state my reasons for this action.
    Without any evidence from the defense, the plaintiffs upon their prima facie case would be entitled to recover in this action. The defendant, however, in much testimony that has been presented, contends that about 1866, I believe, there was a parol arrangement or agreement entered into between W. T. E. Webb, guardian of Mary C. Sayers, on the one part, and Elizabeth A. Sayers, later Elizabeth A. Hoskinson, which arrangement or agreement was made in the presence of Mary C. Sayers, then a minor, by which this property in dispute and another lot were to be taken by Elizabeth A. Sayers, the widow, absolutely and in fee, in consideration of her releasing her rights of dower and as life tenant to sundry other properties that had descended with these lots from E. Sealy Sayers, deceased, the husband of Elizabeth, and the father of Mary C., and that these facts establish what they call a parol partition between the widow and daughter by her guardian, acting for her, and that this partition being just and equal, and having been recognized continuously by the widow and the daughter, during the lifetime of the daughter, and claimed by the widow to her death in 1900, gave a good title to her in fee for the land in dispute.
    Mary C. Sayers died in her minority, and therefore there could be neither ratification of nor acquiesence in said parol partition or agreement by her. The interests and estate of the widow and this surviving child were totally different, the widow having a life estate only. Such division between them as appears by this agreement was not a partition, separation or setting apart of shares as is contemplated in law between tenants in common or coparcenary, and if sustained would be an alienation of the minor’s estate and the destruction of her fee in the land in dispute. On the other hand,it would be an acquisition by the widow of a new and wholly different title.
    We think this cannot be done in parol nor without the sanction of the orphans’ court.
    Defendant contends, however, that if no parol partition has been established, that yet as an exchange of interests or as a sale, it may be sustained in this proceeding, and the facts should be sent to the jury for determination, because the widow has been in possession, as the defendant claims for a period, in one way and other, exceeding thirty years, and has paid the taxes and made valuable improvements on the property.
    If this is to be treated as a contract of sale or exchange it is Avithin the statute of frauds and perjuries. And we think the evidence of possession offered by the defense, being the possession of Elizabeth A. Sayers, accepting it for all defendant claims, is not such proof of hostile and adverse possession as Avill enable the defendant to claim against the next of kin of Mary C. Sayers under such parol sale or exchange, because during the life of Elizabeth Sayers-Hoskinson she was entitled under her life estate to the possession, and the plaintiffs in this case had no claim they could assert in court against her possession during her life.
    Eor these reasons we affirm the plaintiffs’ first point which reads: Under all the evidence in the case the verdict of the jury must be for the plaintiffs.
    Verdict and judgment for plaintiffs. Defendant appealed.

      Error assigned was the charge of the court, quoting it.

      James J. Purman, with him D. S. Walton, and J. B. Donley, for appellant.
    The contract Avas just, fair and equal: Calhoun v. Hays, 8 W. & S. 127.
    It was simply a family arrangement: Cowan’s App., 74 Pa. 329; Davis v. Dickson, 92 Pa. 365.
    The contract Avas complete and executed, did not need ap-proval, and the widoAv could convert dower and life estate into a fee: Davis v. Dickson, 92 Pa. 365.
    Parol partition by minor is valid: Darlington’s Appropriation, 13 Pa. 430.
    The statute of limitations is a complete bar: Weddle v. Robertson, 6 Watts, 486; Hollinshead’s App., 103 Pa. 158; Updegrove v. Blum, 117 Pa. 259.

      James E. Sayers, with him L. W. Sayers, and A. F. Silveus, for appellees.
    Power to convert a ward’s estate ought not to be assumed in any case; and to sanction it under any circumstances would encourage guardians to act independently of the court: Miller’s Est., 1 Pa. 326; Blauser v. Diehl, 90 Pa. 350; Stoughton’s App., 88 Pa. 198; Mulholland’s Est., 154 Pa. 491; Bennett v. Hayden, 145 Pa. 586; Johns v. Tiers, 114 Pa. 611; Ruchizky v. DeHaven, 97 Pa. 202; Senser v. Bower, 1 P. & W. 450; Shaw v. Boyd, 5 S. & R. 309.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

The plaintiffs, as collateral heirs of Mary C. Sayers who died in her minority, married, but without issue, succeeded to her title to the land in dispute. At the time of her death Mary C. Sayers was seized of a fee simple in the property, subject to an unassigned dower right in her mother, Elizabeth A. Sayers, widow of E. Seely Sayers, from whom the property descended, and subject also to a life interest which accrued to the mother upon the death of an infant brother who shared with Mary C. Sayers the inheritance. Elizabeth A. Sayers, widow and mother, died in 1900. These facts appearing on the trial established for the plaintiff a prima facie right. The defendants replied, offering evidence in support, that back in 1866, the guardian of Mary C. Sayers, then about sixteen years of age, having obtained an order from the orphans’ court for the sale of his ivard’s real estate, it was agreed between the guardian and the mother of his ward, with the assent of the ward, that certain purparts of the real estate should be sold, released and discharged of all the mother’s claim or interest therein, the mother in return to be allowed to retain the unsold purparts, of which the land in controversy was one, as her own, the daughter upon her coming of age to execute and deliver title for the same; that this agreement was so far executed that the properties designated to be sold discharged of the mother’s interest were so sold, and the sales so made were upon return to the court duly confirmed; and further, that the mother who survived the daughter some thirty years, thereafter, held the purparts remaining unsold as her own exclusive property under the terms of the agreement, until her death. Had this been the whole of defendant’s case the learned trial judge would have been entirely right in directing a verdict for plaintiff. The agreement with the guardian vested no title in the mother. A guardian cannot by his own unauthorized act destroy the inheritance in the land of his ward; the court may not authorize him to do so except in the statutory way for such reasons as the statute allows; nor can the ward authorize the guardian to do what ■the ward cannot of herself do. The ward in this case was sixteen years old, and when she died was within a few months of her majority. The legal aspect of the case would not have been different had she been an infant in arms when the agreement was made; her disability continued the same throughout her whole life. The agreement was utterly without binding force; it was conditioned upon the ward’s affirmance after majority; and this was made impossible by her death during minority. "Whether it was a parol agreement with respect to land so far executed as to make it inequitable to disturb it, had no place in the inquiry, for the reason that it was made ■with one totally without authority to bind the party whom he assumed to represent, -while that party herself was legally incapable of doing anything by way of ratification or adoption.

Nor could the contention that the agreement was in effect an amicable partition of the real estate between the mother and the ward acting by her guardian, be sustained. To suppose that the case of Calhoun v. Hays, 8 W. & S. 127, is authority for a contrary view, is to overlook the predicate upon which the doctrine of that case rests. True, it is asserted in that case that an amicable partition without legal process in .which a ward is represented by the guardian, will be good and binding on the ward, if shown to be fair and equal; but it is only on the ground that in making the partition, the parties, including the guardian, were only doing what at law they could be compelled to do. But this was no' such partition as could have been enforced by the widow ; it was an exchange of land. By no partition proceeding could the widow have acquired an inheritance in the land of the heir. The case cited gives no support whatever to the defendant’s contention in this regard. The position taken was wholly untenable.

But the defendant did not rely exclusively upon the agreement between the mother and the guardian ,• he urged as well in defense of the action the statute of limitations. It is only necessary to say that the evidence on this branch of the case was sufficient to carry the question to the jury. Whether it should have prevailed is another matter, in regard to which we express no opinion. Unquestionably the possession of Elizabeth A. Sayers during the lifetime of her daughter was in subordination to the title and possession of the latter, but what were the incidents of her continued possession thereafter % That her possession continued for more than twenty-one years after the daughter’s death is an unquestioned fact. During all of this period was it actual, exclusive, open, continuous and hostile ? It was for the jury to decide under proper instructions from the court whether the facts existed which constitute in law adverse possession. It was error to refuse the submission.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Elkin,

text:
    Barnes v. Rea, Appellant.

      Contract — Option—Construction—Contention of parties.

    Whether an instrument in writing transferring an interest in real estate shall be construed as an absolute conveyance, or only an agreement to convey, or an option to purchase, depends, not on any particular words or phrases, but on the intention of the parties to be derived from the instrument itself by a consideration of all its parts, and when that is doubtful, from the circumstances attending it.
    An option is an unaccepted offer to sell and convey within the time fixed and upon the conditions set forth in the written agreement’.
    An option is a unilateral agreement, binding upon the optionor from the date of its execution, but does not become a contract inter partes in the sense of an absolute contract to convey on the one side and to purchase on the other until exercised by the optionee.
    An owner of coal agreed in writing to sell and convey the same to another party for a certain sum per acre, one-fourth of the purchase money to be paid at the time of the delivery of the deed and the balance in three equal annual payments. The agreement further contained this provision: “It is expressly understood and agreed that if the first payment aforesaid is not made ” on a day named “ or within ten days thereafter, this agreement shall be considered as rescinded and neither party shall be bound thereby.” The optionee served on the optionor a written notice of his election to purchase the coal within a time named, but did not pay or tender within such time the first instalment of the purchase money. Long afterwards he made a tender of the installment, and on a subsequent day the owner acknowledged the original option agreement, and the agreement was duly recorded. Held, (1) that the agreement was an option and not a contract to sell coal; (2) that the service of notice was not an exercise of the option in accordance with the agreement; (3) that the only way in which the option could be exercised was by payment or tender of one-fourth of the purchase money within the time specified; and (4) that the subsequent act of the owner in acknowledging the original agreement indicated that the original agreement was still in force, and that he had waived his right to declare a forfeiture.
    Argued Oct. 21, 1907.
    Appeal, No. 169, Oct. T., 1907, by defendants, from decree of C. P. Greene Co., No. 73, In Equity, on bill in equity in case of James R. Barnes v. L. M. Rea, J. M. Hustead and I. W. Semans.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance.
    The court found the following facts:
    L. M. Rea, one of the defendants, was seized in fee of a tract of land situate in Cumberland township, in Greene county, Pennsylvania, containing ninety-five acres, more or less, and being so seized thereof on June 2, 1899, entered into an agreement with J. M. Hustead and I. W. Semans, two other defendants named'in this bill, to sell and convey, by deed with an abstract of title, to said Hustead and Semans, their heirs and assigns, all the nine-foot or Pittsburg vein of coal under the said tract of land, with certain mining rights, and reserving the privilege of operating for oil and gas on the same, which agreement and contract was in writing, which is in the words and figures following, to wit :
    “ This agreement witnesseth, that L. M. Rea, of Greene county, Pa., hereby agree to sell and convey to J. M. Hustead and I. W. Semans, their heirs and assigns, all the nine-foot or Pittsburg vein of coal in and under that certain tract of land in Cumberland township, Greene county, Pa., bounded by lands of Swan heirs, R. L. Barly, C. A. Rea, Bell heirs and others, and containing ninety-five (95) acres, more or less: Giving the first parties the privilege of boring for oil and gas on said farm, with the right to mine and remove all and every part of the same, without being required to provide for the support of the overlying strata or surface, and without being liable for any injury to the same or to anything therein or thereon by reason thereof, and with all reasonable privileges for ventilating, pumping and draining the mines, and the right to keep and maintain roads and ways in and through said mines forever, for the transportation of the said coal, etc., and of coal from and to other lands. For which the party of the second part, their heirs or assigns, shall pay $60.00 per acre, for each and every acre, as follows : One-fourth of the purchase money at the time of making and delivering of said deed, and the balance in three equal annual payments from the date of said deed, with interest at the rate of five per cent, per annum on deferred payment. An abstract deed with a certificate of title to be made to said J. M. Hustead and I. W. Semans, their heirs or assigns, when the first payment is made, and the others are secured by ... . mortgage on the property hereby sold. The .... of the second part .... heirs or assigns, shall have the right to take .... by paying .... per acre therefor at the time of taking, and when a deed is made. It is expressly understood and agreed that if the first payment aforesaid is not •made on October 2, a. j>. 1899, or within ten days thereafter, this agreement shall be considered as rescinded, and neither party shall be bound thereby.”
    On September 6,1899, for value received, J. M. Hustead and I. "W. Semans assigned, transferred and set over to James R. Barnes, his heirs and assigns, all their right, title, interest, property, claim and demand whatsoever, of, in, to or out of the said agreement.
    On October 11, 1899, James R. Barnes caused a notice in writing to be served upon L. M. Rea to the effect that the contract had been assigned by Hustead and Semans to him, and further notifying him that he accepted to purchase said coal under the terms specified in said contract, which notice was in words and figures as follows :
    “ Mr. L. M. Rea : I hereby notify yon that the option dated June 3, 1899, given by you to J. M. Hustead and I. W. Semans for the coal therein mentioned in and under the tract of land in said option described, has been assigned to me by said Hustead and Semans, and I hereby further notify you that I accept to purchase said coal under the terms specified in said option.
    “ October 3, 1899. Jas. R. B aúnes.” ,

      On June 20, 1900, said James R. Barnes, plaintiff, caused a tender of $1,500 in gold to be made to defendant, and demanded a deed for said coal and mining rights, which money so tendered the said L. M. Rea, defendant, refused to accept, and he also refused to make, execute and deliver a deed and abstract of title, both of which (deed and abstract) he had agreed and bound himself to make.
    July 20, 1900, the said L. M. Rea, defendant, in due form of law, acknowledged the said contract to be his act and deed, and desired the same to be recorded as such.
    The court entered a decree for specific performance.

      Error assigned was the decree of the court.

      F. W. Downey, with him R. F. Downey, for appellant.
    The instrument in suit is not an option.
    In the matter at issue the optionees did not sign the instrument, and therefore there was no obligation on either the optionees or their assignee, the plaintiff, to buy. The obligation was entirely upon the defendant, and, therefore, the instrument was an option and not a contract: McMillan v. Phila. Co., 159 Pa. 142; Yerkes v. Richards, 153 Pa. 646; Swank v. Fretts, 209 Pa. 625; Verstine v. Yeaney, 210 Pa. 109; Russell v. Stewart, 204 Pa. 211; White v. Siorski, 50 P. L. J. 142; Dauchey v. Pond, 9 Watts, 49; Vito v. Birkel, 209 Pa. 206.
    An acceptance of an option to be good must be such as to conclude an agreement or contract between the parties. An offer to sell imposes no obligation until it is accepted according to its terms: Henry v. Black, 213 Pa. 620.

      James J. Purman and Thomas S. Crago, for appellee.
    Before the vendor can claim rescission of the agreement for failure of the vendee to pay “ one-fourth of the purchase money,” vendor must present a deed, for the money is payable “ at the time of making and delivering of said deed:” Vankirk v. Patterson, 201 Pa. 90.
    Notice of rescission was necessary: Miller v. Phillips, 31 Pa. 218; Forsyth v. Oil Co., 53 Pa. 168.
    Under the contract he was bound to present a deed and show a clear title, and having failed, or being unable to do this, he cannot claim a rescission: Vankirk v. Patterson, 201 Pa. 90; Douglas v. Hustead, 216 Pa. 292.
    Rea acknowledged the contract; this was in affirmance of it and estops him: Cover v. Manaway, 115 Pa. 338; Com. v. Haines, 97 Pa. 228; Heilman v. Kroh, 155 Pa. 1; McMullin v. Glass, 27 Pa. 151; Richart v. Wisner, 2 Kulp, 395; Vankirk v. Patterson, 201 Pa. 90.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

This is a bill in equity asking for the specific performance of a contract in writing. At the beginning of our inquiry it is necessary to determine whether the agreement is an option to purchase, or an absolute contract to convey. The learned court below has found as a conclusion of law that the agreement entered into between the parties was not an option to purchase, but a completed contract of sale, containing mutual and dependent covenants on the part of the vendor and vendee from the date of its execution. We cannot accept this as the proper interpretation of that instrument. Rea was the owner of certain real estate underlaid with coal. Ilustead and Semans were engaged in the business of taking options on coal lands. Among others they secured the agreement, the specific performance of which is asked in this proceeding. It was under seal and signed by appellant. It is perfectly clear that all of the interested parties considered it an option to purchase and not an absolute contract of sale. It was so treated by Rea, party of the first part, and by Ilustead and Semans, parties of the second part, and by their assignee, Barnes, who, in order to exercise his option before its expiration, served upon appellant a written notice of his election to purchase the coal upon the terms specified in the agreement. It is true Rea agreed to sell and convey to Ilustead and So-mans, their heirs and assigns, all of the Pittsburg vein of coal underlying the tract of land described in the agreement upon the terms and conditions therein contained. If these words stood alone, the intention of the parties to enter into an absolute contract to convey would be apparent, and under such circumstances the covenants would be considered mutual and dependent from the date of the execution of the agreement. They, however, do not stand alone, and the intention of the parties must be gathered from a proper construction of the whole instrument. Whether an instrument in writing transferring an interest in real estate shall be construed as an absolute conveyance, or only an agreement to convey, or an option to purchase, depends, not on any particular words or phrases, but on. the intention of the parties to be derived from the instrument itself by a consideration of all its parts, and, when that is doubtful, from the circumstances attending it: Stouffer v. Coleman, 1 Yeates, 393; Neave v. Jenkins, 2 Yeates, 107; Bear v. Whisler, 7 Watts, 144; Swank v. Fretts, 209 Pa. 625; Yerkes v. Richards, 153 Pa. 646; Verstine v. Yeaney, 210 Pa. 109.

An option is an unaccepted offer to sell and convey within the time fixed and upon the conditions set forth in the written agreement: McMillan v. Philadelphia Company, 159 Pa. 142. In the evolution of modern business methods this has grown to be the prevailing custom in making sales of coal lands, and other mineral estates, in many sections of our state. It is important, therefore, that the rights and liabilities of contracting parties in such agreements should be definitely determined. It must be conceded that there is some difficulty in harmonizing the cases in which questions of this character have arisen. The inconsistencies, however, if such they may be called, are more apparent than real. The difficulty is not so much in the principle involved as in the application of it to the facts of a particular case. It has happened in a few instances, that the rules of law applicable only to absolute contracts to convey have been referred to in our decisions as bearing upon the rights and liabilities of parties in an option to purchase. In no instance, however, called to our attention has such a reference been material or controlling in the decision of the issue involved. There can be no such thing as mutuality of covenants on the part of the vendor to convey and deliver a deed clear of all incumbrances and of the vendee to pay, or give security for the payment of the consideration agreed upon, during the option period and before the exercise of the election to purchase. Mutual and dependant covenants must of necessity, in their very nature, relate to an absolute contract between the parties in the first instance, or to an optional agreement which has become absolute by an election to take within the period fixed. An option is a unilateral agreement, binding upon the optionor from the date of its execution, but does not become a contract inter partes in the sense of an absolute contract to convey on the one side and to purchase on the other until exercised by the optionee. The court below was, therefore, in error in holding that the covenants in the agreement under consideration were mutual and dependent from the date of the execution of the agreement. Adams v. Williams, 2 W. & S. 227; Remington v. Irwin, 14 Pa. 143; Keeler v. Schmertz, 46 Pa. 135; Irwin v. Bleakley, 67 Pa. 24; Sylvester v. Born, 132 Pa. 467, relied on to support this doctrine, are cases growing out of absolute contracts for the sale of real estate and have no application in determining the rights of parties to an optional agreement during the option period and before the option has been exercised. The optionor in the present case bound himself, his heirs and assigns, to sell and convey upon the terms and conditions set forth in the agreement, and within the time fixed for the first payment. The optionee could take or refuse to take during that period. If he failed or neglected to exercise his option within the time limited in the manner specified in the agreement, it was at an end. The agreement did not become an absolute contract to purchase until the optionee elected to take. At the very moment he exercised his option, if the election was made in the manner specified in the agreement, it became a binding contract between the parties, and from that time both parties- would be bound by the covenants therein contained.

It must now be determined whether the optionees or their assignee exercised the option in the manner specified in the agreement, which contains the following provision : “ It is expressly understood and agreed that if the first payment aforesaid is not made on the second day of October, a. d. 1899, or within ten days thereafter, this agreement shall be considered as rescinded, and neither party shall be bound thereby.” Having held that the agreement is an option to purchase, it must necessarily follow that the election to take must be exercised in the manner therein required. The only method specified is that contained in the clause above recited, and this provided for the payment of one-fourth of the purchase money on or before a certain date or within ten days thereafter. If the case depended upon this question alone, we would be compelled to hold that failure to make the first payment within the time worked a forfeiture of all rights under the agreement. It appears from the testimony that the appellee here caused a written notice of his election to purchase the coal to be served on appellant on October 11, 1899. This notice was served within the time specified in the agreement, and it is contended that it then became the duty of appellant to tender a deed with abstract of title before he could insist upon a forfeiture of the contract. In other words, even if the covenants were not mutual from the inception of the contract, they became mutual immediately upon the election to take. This would undoubtedly be true if the option had been exercised in the manner required by the agreement. Nor do we consider Corson v. Mulvany, 49 Pa. 88, Smith & Fleek’s Appeal, 69 Pa. 474, and Yerkes v. Richards, 153 Pa. 646, authority for a different doctrine. These cases, it is true, related to optional agreements, but they dealt with the mutuality of parties and not of covenants. Nothing therein decided supports the contention that covenants in optional agreements are mutual and dependent from the date of their execution.

It is argued that it makes no difference whether this contract be considered an absolute agreement to sell, or only an option to purchase, because, if the latter, it was exercised within the time fixed, and therefore the covenants became mutual. This argument would be sound if the option had been exercised in the manner provided in the agreement. It was not so exercised. Notice in writing served upon the optionor of an election to purchase was not sufficient in this case, because a different method was provided by the parties. The payment of one-fourth of the purchase money on or before October 12, 1899, was the condition upon which the option could be exercised. Time was of the essence of this contract, because made so by the parties, and failure to pay within the time specified worked a forfeiture unless waived by the optionor in express terms or by necessary implication.

This brings us to the consideration of what we consider the pinch of the case. Several months after appellee had served appellant with notice of his election to take, he caused a tender of $1,500 in gold to be made appellant, and demanded a deed for the coal and mining rights. On the date when this tender was made, to wit: July 20, 1900, the original optional agreement, which had not been acknowledged, was presented to appellant, who in due form of law acknowledged the same to be his act and deed, and desired it to be recorded as such. This act by appellant is inconsistent with the position now taken that a forfeiture had been asserted or claimed upon failure to make the first payment within the time specified. By this act he acknowledged the original agreement as still in force, and by implication, at least, waived his right to declare a forfeiture. The agreement was subsequently recorded, and thereby public record was made giving notice that appellant acknowledged it to be in force and binding upon him long after the date when he now asks the courts to decree a rescission upon the ground of failure to make payment as required. It would be unjust and inequitable to do so. He is estopped by his own acts from asking for a rescission of the contract for the reasons just given.

While there are many other questions raised by the specifications of error, we do not deem it necessary to discuss them, because the decree entered by the court below must be sustained on the ground stated.

Decree affirmed at cost of appellant.