author: Mr. Justice Elkin,

text:
    Marcus, Appellant, v. Gimbel Brothers, Inc.

      Negligence — Master and servant — Assault by servant — Evidence—Case for jury.

    1. A master is liable for the tortious acts of his servant done in the course of his employment and within the general scope of his authority. The presence or absence of the master when the wrongful act is committed, and whether it is done with or without direct authority, does not affect the question of liability to the party injured, if the acts complained of were done in the performance of the duties for which the servant was employed. If, on the other hand, the wrongful act, resulting in the injury, was done by the servant outside of his employment and not in pursuance thereof, but in order to gratify the ill will or malice of the servant, the master is not liable, although the servant may at the time be in his employment.
    2. Whether a servant acts within or without the scope of his authority depends upon the facts in each particular case and when the facts are disputed the question is for the jury.
    3. In an action against a corporation owning a department store to recover damages for injuries caused by an assault by an employee of the defendant, where it appears that the plaintiff made a complaint to the president of the defendant as to the goods, and that she was directed to the superintendent with the statement that “whatever he says goes,” and as a result of the conversation with the superintendent she was given certain goods in substitution which she took home, the plaintiff may show that the superintendent subsequently telephoned her that she had misrepresented the facts, and that an employee of the defendant would be sent for the goods, which would be taken by force, if necessary, and that subsequently the said employee went to plaintiff’s house, demanded the goods, and in endeavoring to obtain them, committed an assault and battery on the plaintiff.
    Argued Jan. 9, 1911.
    Appeal, No. 177, Jan. T., 1910, by plaintiffs, from order of C. P. No. 5, Phila. Co., Dec. Term, 1906, No. 3,019, refusing to take off nonsuit in case of Isaac Marcus and Claire Marcus, his wife, v. Gimbel Brothers, Incorporated.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Staake, J.
    The facts appear by the opinion of the Supreme Court.
    At the trial when Mrs. Marcus was on the stand, the following offer was made:
    Mr. Powell: I am going to prove that Mr. Hoffman was sent by Mr. Barrett with instructions to get the silk, and that he was to use force, if necessary, to do it, and that he so stated to this witness over the ’phone prior to sending Hoffman to her house.

      Mr. Hepburn: That is objected to.
    Mr. Powell: I intend to follow that up by showing that Mr. Barrett called the witness up — that she asked him who it was and he said it was Mr. Barrett and she recognized his voice over the ’phone, and he then said to her, "You have got this silk by some false pretense,” and said she would have to give it back and said, "Don’t dare cut it,” and he was going to send Mr. Hoffman to come iip for it and use force if necessary. Then to follow that up by showing that Mr. Hoffman came there and stated that he was told to use force and did use force to get this silk.
    The Court: For the reasons stated, I sustain the objection to the offer.
    The court granted the plaintiff an exception to the above ruling. [1]
    Mr. Powell: I offer to prove that later on, on the twenty-fourth, George Hoffman called to obtain this eighteen yards of silk, and that in getting it he committed an assault upon this witness.
    Objected to.
    The Court: I cannot pass upon what you may do, but only upon what you are asking me to do at this time. If you propose to prove your case in some other way I will be very glad to pass upon each offer as it is made but so far as the present offer to prove the agency of Hoffman by his own declaration made to the witness is concerned, I shall have to overrule that offer.
    The court grants the plaintiff an exception to the above ruling. [2, 3]
    Mr. Powell: I now make the offer to prove by this witness the allegations contained in our statement of claim filed to the effect that there was an assault committed on her by one of the employees of Gimbel Brothers, one George Hoffman, who was sent to her house to secure certain silk — that in the securing of that silk he committed an assault — and then I intend to follow that up by .showing the nature of the assault, the injuries sustained by the plaintiff, and the loss sustained by her and her husband.
    Mr. Hepburn: I object until it is shown that Hoffman was sent to the house of the plaintiff.
    The Court: That Hoffman was sent to the house of the plaintiff or her husband — that is to the residence of Mr. and Mrs. Marcus, by some one authorized to send him for that purpose?
    Mr. Hepburn: Yes.
    The Court: And that must necessarily precede any effort to hold the defendant company responsible for what Hoffman may have done.
    Mr. Powell: I make the offer at this time, because if your honor overrules my offer, that is my case.
    The Court: I sustain the objection for the reasons which have actuated me in sustaining the prior objections. The court granted plaintiff an exception to the above ruling. [4]
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Theodore F. Jenkins, with him Humbert B. Powell, for appellant.
    While not liable for the willful and independent trespass of his servant a master is responsible civilly for the manner in which the servant does the work that he is employed to do, and it is the character of the employment when an act is done, not the private instructions to the servant, by which the master’s liability is to be determined: McClung v. Dearborne, 134 Pa. 396; Dick v. Cooper, 24 Pa. 217; Stafford v. Henry, 51 Pa. 514; Brennan v. Merchant & Co., 205 Pa. 258; Guinney v. Hand, 153 Pa. 404; Atherolt v. Electric Motor Co., 27 Pa. Superior Ct. 141; Whaley v. Citizens’ National Bank, 28 Pa. Superior Ct. 531.
    The question whether a servant was acting within the scope of his employment when he committed a negligent act is a question of fact for the jury: Guinney v. Hand, 153 Pa. 404; Moon v. Matthews, 227 Pa. 488.
    April 10, 1911:

      W. Horace Hepburn, for appellee.
    The alleged statements of Barrett over the ’phone, as to sending Hoffman to take the goods by force, if necessary were not admissible to bind appellee: Hays & Wick v. Lynn, 7 Watts, 524; B. & O. Employees’ Relief Assn. v. Post, 122 Pa. 579; American Car & Foundry Co. v. Alexandria Water Co., 221 Pa. 529; American Underwriters’ Assn. v. George, 97 Pa. 238; Union Refining & Storage Co. v. Bushnell, 88 Pa. 89; Oil City Fuel Supply Co. v. Boundy, 122 Pa. 449; Lombard, etc., Pass. Ry. Co. v. Christian, 124 Pa. 114; Shannon v. Castner, 21 Pa. Superior Ct. 294.
    Where the act of the servant does not fairly tend to effectuate the discharge of the duty for which he is employed, the master is not liable: Guille v. Campbell, 200 Pa. 119; Towanda Coal Co. v. Heeman, 86 Pa. 418; Berryman v. Pennsylvania R. R. Co., 228 Pa. 621; Mali v. Lord, 39 N. Y. 381; Thames Steamboat Co. v. Houstonic R. R. Co., 24 Conn. 40; Paulton v. Keith, 23 Rhode Island, 164 (49 Atl. Repr. 635); Investment Co. v. Eldridge, 175 Pa. 287.
    The offer of the appellants to prove that Hoffman called at the house of appellants to secure the silk, and that in attempting to secure it he committed an assault upon the appellant, Claire Marcus, was not admissible, without proof that Hoffman was sent to the house of appellants by the appellee, or some one in its behalf having authority to act for the defendant: Towanda Coal Co. v. Heeman, 86 Pa. 418; Guille v. Campbell, 200 Pa., 119; Feneran v. Singer Mfg. Co., 20 N. Y. App. Div. 574 (47 N. Y. Supp. 284) ; McGrath v. Michaels, 80 N. Y. App. Div. 458 (81 N. Y. Supp. 109); Lotz v. Hanlon, 217 Pa. 339; Shay v. American Iron & Steel Co., 218 Pa. 172; Berryman v. Pennsylvania R. R. Co., 228 Pa. 621.
   Opinion by

Mr. Justice Elkin,

This is an appeal from the judgment of nonsuit directed to be entered by the learned court below and from refusal upon motion made to set the same aside. The suit was brought to recover damages for injuries sustained by reason of an alleged assault and battery upon the wife of appellant under the following circumstances. His wife was engaged in the business of dressmaking and in pursuit of her business had purchased some silk from the appellee corporation. The silk proved to be unsatisfactory and Mrs. Marcus, the wife, went to the department store of appellee where she saw the president and made her complaint to him. He referred her to the superintendent, saying, “My child, I am very sorry, only you have to go in to the superintendent and whatever he says goes.” She testified that the name of the superintendent mentioned was Mr. Barrett and that she immediately waited upon him as directed by the president. Mr. Barrett called in Mr. Frutchey who had charge of the silk department and the question of the defective silk was discussed between them, with the result that it was agreed to furnish eighteen yards of silk from which should be taken enough to supply the place of that which was defective and about which complaint was made. This arrangement was carried out. The offer was made to prove by Mrs. Marcus that on the next day Mr. Barrett telephoned her that she had misrepresented the facts to him and that George Hoffman, an employee of the appellee company, would be sent for the silk, which would be taken by force if necessary. Sometime thereafter, on the same day, Hoffman went to the house of Mrs. Marcus, demanded the silk, and in endeavoring to obtain it, committed the alleged assault and battery about which complaint is made. The first, second, third and fourth assignments relate to the refusal of the trial judge to admit the testimony of Mrs. Marcus tending to prove what Mr. Barrett said over the telephone as to sending Hoffman for the silk; what he would do if necessary to regain possession of it; and what he actually did when he called for it. All of these offers were objected to by counsel for appellee and the objections were sustained by the trial-judge mainly on the ground that the evidence failed to show that the acts complained of were committed within the scope of the authority of either Barrett or Hoffman acting for and representing the appellee corporation. The question for determination here is whether error was committed in refusing to admit these offers of testimony. The general rule is that a master is liable for the tortious acts of his servant done in the course of his employment- and within the general scope of his authority. The presence or absence of the master when the wrongful act is committed, and whether it is done with or without direct authority, does not affect the question of liability to the party injured, if the acts complained of were done in the performance of the duties for which the servant was employed. If, on the other hand, the wrongful act, resulting in the injury, was done by the servant outside of his employment and not in pursuance thereof, but in order to gratify the ill will or malice of the servant, .the master is not liable, although the servant may at the time be in his employment: McClung v. Dearborne, 134 Pa. 396; Brennan v. Merchant & Co., 205 Pa. 258. Indeed, this rule is recognized by text writers generally and applied in all jurisdictions. Whether a servant acts within or without the scope of his authority depends upon the facts in each particular case and when the facts are disputed the question is for the jury: Guinney v. Hand, 153 Pa. 404; Moon v. Matthews, 227 Pa. 488. Whether Hoffman was acting within the scope of his authority under the facts proved, or offered to be proved, was a question for the jury. He was an employee of appellee and was sent with some kind of instructions to reclaim the silk in the possession of Mrs. Marcus who testified that Mr. Barrett had notified her by telephone that Hoffman would call for it that day and if necessary take it by force. He did call for the silk that day and appellants offered to prove that he took it by force, thus causing the injuries about which complaint is made. Certainly, under these circumstances, it was for the jury to determine whether Hoffman was acting within the scope of his authority. It is . contended that the burden of showing that Barrett was the agent or servant of appellee, and the extent of his authority, was upon the appellants. If it be conceded that this is the correct rule the evidence was sufficient to submit to the jury on the question of his authority. Mrs. Marcus testified that the president of the corporation referred her to Barrett as superintendent, saying “whatever he says goes.” After her interview with Barrett, the silk was given her, she took it home, and then followed all the acts about which complaint is made. If this testimony is believed, it is sufficient to warrant a finding by the jury that Barrett was authorized to act for and represent the appellee and that in pursuance of his authority he directed Hoffman, another employee, to take possession of the silk by force if necessary. If Hoffman acting by direction of Barrett who represented the company committed wrongful acts in the performance of the duty thus required of him, it was for the jury to say whether these wrongful acts were done in the course of his employment and within the scope of his authority. We see no escape from this conclusion. It may be that upon a trial of the cause the appellee will produce testimony to contradict the material facts relied on by appellants, but if so, it will still be for the jury to pass upon the credibility of witnesses and determine the questions of fact involved in arriving at a proper verdict.

It is argued that what Barrett said to Mrs. Marcus over the telephone should not be admitted as evidence in any way binding upon appellee. This position is asserted upon two grounds, first, that Barrett was not the agent of appellee, and, second, even if an agent, the principal is not bound by his declarations. As to the first position, we have already said there was sufficient evidence, if believed by the jury, to warrant a finding that Barrett in this particular transaction was authorized to act for and represent the appellee. _ The second position is also free from difficulty. The declarations of an agént while transacting the business of his principal, are evidence against the principal, not as mere declarations, but as explaining the character and quality of the act: Dick v. Cooper, 24 Pa. 217. In the case at bar if the jury should determine that Barrett had authority to represent appellee in adjusting the complaint of Mrs. Marcus about the silk purchased, what he said and did while so acting, may be shown at the trial for the purpose of explaining the transaction and as bearing upon the question of his authority. It will not be helpful to pursue the discussion further. We think the excluded offers of testimony should have been admitted and that the questions of fact raised are for the jury with proper instructions by the court as to the law applicable thereto.

Assignments of error sustained, judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Moschzisker,

license: Public Domain

text:
    Philadelphia to use v. Fidelity & Deposit Company of Maryland, Appellant.

      Principal and surety — Surety companies — Extension of time — Municipal contract.

    A surety company is not relieved of liability on its bond by an extension of time given to its principal, where it appears that the bond was given to a city under the requirements of an ordinance, for the benefit of all persons who might furnish labor or material in the course of public work, whether the contracts for such labor and material were in existence at the time the bond was executed or not, and without regard to the terms of the purchase whether for cash or on credit, that the extensions did not go beyond the time limit for suit on the bond, and that the surety suffered no material harm by the extensions.
    Argued Jan. 10, 1910.
    Appeal, No. 138, Jan. T., 1910, by defendant from order of C. P. No. 5, Phila. Co., Feb. Term, 1910, No. 4,614, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Philadelphia to use of William P. Thompson, Surviving Partner of the Firm of William P. Thompson and Robert P. Thompson, trading as Thompson Brothers v. Fidelity and Deposit Company of Maryland.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a bond.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the casé.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      William A. Glasgow, Jr., for appellant.
    It has always been held in Pennsylvania that an extension of the time for payment of the obligation secured, without the surety’s knowledge or consent, will release the surety: Riddle v. Thompson, 104 Pa. 330; Miller v. Stem, 12 Pa. 383; Henderson v. Ardery, 36 Pa. 449.
    And it has repeatedly been held that the taking of promissory notes, with an agreement for an extension of the time of payment to the date of maturity of such notes, will release the surety, who does not consent thereto, and that payment of interest in advance is a sufficient consideration to support such an agreement: Grayson’s App., 108 Pa. 581; Siebeneck v. Anchor Savs. Bk., 111 Pa. 187; Bishop’s Est., 195 Pa. 85; Calvert v. Good, 95 Pa. 65.
    The surety’s defense in the present case is further strengthened by the allegation that the extension continued until the principal was insolvent and bankrupt, and until the final and deferred payments under the contract had been paid to the surety and otherwise expended by him: United States v. American Bonding & Trust Co., 89 Fed. Repr. 921.

      Frank P. Prichard for appellee.
    It is submitted that the weakness of the appellant’s argument consists in treating the contract in the present case as an ordinary contract of suretyship: Young v. American Bonding Co., 228 Pa. 373.
    April 10, 1911:
    It has been decided, both by this court and the Supreme Court of the United States that under such bonds as the one in suit a person who was a subcontractor, who had no contract relation whatever with the principal in the bond, could recover upon the bond: Philadelphia v. Wiggins, 227 Pa. 343; United States v. American Surety Co., 200 U. S. 197 (26 Sup. Ct. Repr. 168).
    Under such bonds, it is no defense that the principal in the bond has paid the person with whom he contracted for the work: Smith v. Mosier, 169 Fed. Repr. 430; United States v. National Surety Co., 92 Fed. Repr. 549.
    It is submitted that so long as the extension of credit did not go beyond the time limit for suit on the bond, the logic of the reasoning of the court would require that it should be held that any change in the terms of credit would not relieve the surety, who must rely for his protection upon the limitation of the time of suit on the bond: Philadelphia v. Stewart, 195 Pa. 309; Philadelphia v. Neill & Lincoln Savs. & Tr. Co., 211 Pa. 353; Leschen & Sons Rope Co., v. Mayflower Gold Mining, etc., Co., 173 Fed. Repr. 855; United States v. Axman, 153 Fed. Repr. 982; United States v. U. S. Fidelity, etc., Co., 172 Fed. Repr. 268; U. S. Fidelity & Guaranty Co. v. United States, 178 Fed. Repr. 692.
   Opinion by

Mr. Justice Moschzisker,

On December 11, 1907, the firm of Lynch Brothers contracted to erect a schoolhouse for the city of Philadelphia, to be finished by August 1, 1908. A percentage of the contract price was to be retained by the city until the acceptance of the building, and the sum of $3,723.58 for a period of twelve months after completion, as a guarantee for the sufficiency of the work. The Fidelity and Deposit Company of Maryland, the defendant, became surety on a bond given by the contractors under the city ordinance of March 30, 1896, to secure payment to subcontractors and others for labor and materials supplied in the prosecution of the work. On November 14, 1907, the firm of Thompson Brothers, the use plaintiffs, contracted with Lynch Brothers to furnish labor and materials for certain portions of the work, and on May 14, 1908, they entered into an additional contract. At or before the time when the debt to Thompson Brothers became due and payable, they accepted a note from Lynch Brothers, dated December 2, 1908, for an amount sufficient to cover the balance now claimed, and with an express agreement that an extension of time should be granted until the maturity of the note. This note was renewed on four occasions, with like agreements for extensions till November 19, 1909; all of the renewals and extensions were without the knowledge or consent of the surety. There was a sufficient consideration to support the several extensions, and there is no claim that the notes were taken in payment of the debt. On or before November 18, 1909, the moneys retained by the city were paid to Lynch Brothers, who became insolvent before November 19, 1909, and on November 24, 1909, were adjudged bankrupts. On February 11, 1910, this suit was instituted against the defendant company as surety on the bond, claiming a balance due and unpaid for work and material furnished by the use plaintiffs, with interest “from October 19, 1908, the date when the work .... was completed." Affidavits of defense were filed averring the facts substantially as above set forth; the court entered judgment for want of a sufficient affidavit of defense, and the defendant has taken this appeal.

The appellant contends that the extensions of time granted by the use plaintiffs to the contractors, without notice to or consent from the surety, released the latter from its liability on the bond. This would be true if the bond were an ordinary contract of suretyship with an individual as surety. But, as we said in the recent case of Young v. American Bonding Company, 228 Pa. 373: “The trend of all our modern decisions, federal and state, is to distinguish between individual and corporate surety-ship where the latter is an undertaking for money consideration by a company chartered for the conduct of such business. In the one case the rule of strictissimi juris prevails, as it always has; with respect to the other, because it is essentially an insurance against risk, underwritten for a money consideration by a corporation adopting such business for its own profit, the courts generally hold that such a company can be relieved from its obligation for suretyship only where a departure from the contract is shown to be a material variance. . . . While such corporations may call themselves surety companies, their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee."

Here the bond was for the protection of subcontractors and others in the construction of a public building. It differs from the ordinary suretyship, in that it is not an obligation for the performance of any particular contract. It was given for the benefit of all persons who might furnish labor or material in the course of the work, whether the contracts for such labor and material were in existence at the time the bond was executed or not, and without regard to the terms of purchase, whether for cash or on credit. In its nature the obligation was more of a contract of insurance than of suretyship; so long as the extensions of credit did not go beyond the two year limit for suit fixed in the bond, and in the absence of fraud or unfair dealing on the part of the subcontractors to the prejudice of the surety, or of material harm actually suffered, the surety was not released. The surety does not aver any of these elements, but relies upon a presumption of injury because the moneys retained by the city were paid over before the expiration of the extensions. These moneys were not retained for the benefit of the surety, but, in the words of the contract, “as a guarantee that . . . . (the contractors) .... shall keep all of said work done by them in good order and repair for said period of twelve months; ” nor could the subcontractors have enforced their claim against this fund: Lesley v. Kite, 192 Pa. 268.

We find no direct averment in the affidavits of defense that the surety was actually harmed by the extensions granted to the contractors, and the facts as stated therein are not sufficient in themselves to raise such a presumption. For all that appears, the contractor may have paid every cent of the cash received to other material men or mechanics who did work upon the building. In a case of this kind, there is no presumption that the surety company is harmed, the prejudice must be made to appear, and the suggestion of mere contingencies or possibilities is not enough.

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


text:
    Howell’s Estate.

      Trusts and trustees — Deed of trust — Construction by act of parties.

    Where a person, who has an absolute interest in certain personal property under a will, and an interest in certain stock directed to be held in trust by the same will, executes a voluntary deed of trust in which she refers to her absolute interest in personal property under the will, and enumerates certain items of personal property, but not the interest in the stock, and thereafter the dividends on the stock continue to be paid to her personally, and not to her trustee under the deed of trust, the court will construe the deed of trust as not passing any title in the stock to the trustee.
    Argued Jan. 11, 1911.
    Appeal, No. 223, Jan. T., 1910, by Anna M. Keir Howell, from decree of O. C. Phila. Co., July T., 1889, No. 46, dismissing exceptions to adjudication in Estate of William Howell, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.

      Exceptions to adjudication.
    The facts are stated in the opinion of , the Supreme Court.

      Error assigned was in dismissing exceptions to adjudication.

      Horace M. Bumsey, for appellant.
    Where there is no latent ambiguity in a written instrument the whole instrument should be read together, and effect and meaning be given to every part of the instrument, each clause being • considered separately and being governed by the intention as expressed in the whole instrument: Miller v. Heller, 7 S. & R. 32; Moore v. Magrath, 1 Cowper’s Rep. 9; Barratt v. Wyatt, 30 Beavan’s Rep. 442; Michell’s Trusts, L. E. 9 Ch. Div. 5; Lloyd v. Pritchard, L. R. (1908)1 Ch. Div. 265.
    Where a clause containing general words is followed by a clause containing special words of description, unless the intention of the parties appear to be otherwise, the particular words should govern the general words: Miller v. Heller, 7 S. & R. 32; Keiser v. Reading Suburban Eeal Est. Co., 43 Pa. Superior Ct. 130; Scott v. Coleman, 5 Littell (Ky.) 349.
    The actual property of which the grantor had possession, when the instrument in question was made should be considered a factor, and any words used in the instrument should be taken as referring to property over which the grantor had control.
    In the interpretation of a written instrument the action of the parties with respect to said instrument, after its execution and delivery, should be considered, in order to arrive at the intent of the parties, and as to the effect intended: Lacy v. Green, 84 Pa. 514; People’s Nat. Gas Co. v. Wire Co., 155 Pa. 22; Trexler v. Reynolds, 43 Pa. Superior Ct. 168; Colder v. Weaver, 7 Watts, 466; Pratt v. Campbell, 24 Pa. 184; New York Tartar Company v. French, 154 Pa. 273; Huckestein v;. Plane Co., 173 Pa. 169; Gass’s App., 73 Pa. 39; Gillespie v. Iseman, 210 Pa. 1.
    April 10, 1911:

      Bernard Gilpin, for appellee.
    The primary object of the deed now before the court was to preserve all of grantor’s estate during her lifetime, and it is not reasonable to suppose that the cemetery stock was not to be included, without an express reservation of it from the operation of the grant: Robbins’ App., 199 Pa. 500.
   Opinion by

Mr. Justice Moschzisker,

William Howell provided in his will: “I have a large amount of the stock of the Green Mount Cemetery Company and whereas it is my mind and will and I direct that the stock of said Company shall not be sold until the expiration of Ten years after my decease, but it shall be held in trust by my trustees but the right to vote in the Company’s affairs shall be in the legatees the same as if the stock presently divisible and distributable at the time of such voting would be entitled thereto and in the ratio in which in such case in proportion to their respective interests therein. I further direct that such legatees shall be entitled to in like manner and proportion to receive the income from said stock directly and without the intervention of said trustees.” He directed his trustees to divide his residuary estate into as many equal shares as he should have children and issue of deceased children, the latter standing in the place of their parents, living at his death, and to pay the net income to each for life, and at death to pay the share of the one dying, as he or she would appoint by will.

Charles B. Howell, son of the testator, died January 13, 1897, entitled to dispose of one-seventh of the residuary estate of his father, including the Green Mount Cemetery stock, leaving surviving a widow and no issue. He directed by his will that his estate should be distributed according to the intestate laws of Pennsylvania. Under the terms of this latter will, Anna M. Keir Howell, the widow of the testator, Charles B. Howell, became entitled to one-fourteenth of the personal estate and to a life-interest in one-fourteenth of the real estate of the original testator, William Howell: Howell’s Est., 185 Pa. 350.

On February 11, 1899, Anna M. Keir Howell executed a voluntary deed of trust to the Commonwealth Title Insurance & Trust Company, as follows: “Whereas the said Anna M. Keir Howell being entitled to one-fourteenth of the personal estate of the late William Howell absolutely under the will of her husband the late Charles B. Howell whereby he executed the power of appointment conferred upon him by the will of the late William Howell and also during life to one-half of the net income arising from a one-seventh share in the real estate of the late William Howell. Now this indenture witnesseth that the said Anna M. Keir Howell .... hath granted .... and set over and by these presents doth grant, .... and set over unto the said Commonwealth .... Trust Company and its successors in trust all the right, title, interest, claim, property and demand of her, the said Anna M. Keir Howell óf in and to the personal property belonging to her and which is as follows: (a) a mortgage for $4,897.22 .... (b) a mortgage for $3,500 . . . . (c) a mortgage for $500. ... As well as a life-interest in one-half of one-seventh of the income arising from the real estate belonging to the trust estate of the late William Howell.” The deed is made irrevocable, and provides that the property shall be held in trust to pay the income to the grantor during her life, free of debts, and upon her death to pay the principal as she may appoint by will, or in default of a will, to be distributed in accordance with the intestate laws, ending with a declaration that the grantor “hereby acknowledges that she has been fully apprised of the value of her interest in the trust estate of the late William Howell and that she understands the same.”

On April 13, 1910, upon the adjudication of an account of the executors of the estate of William Howell, deceased, a distribution was made of the Green Mount Cemetery stock at a value of $97,500, and the share of the said Anna M. Keir Howell was awarded to the Commonwealth Company as trustee under the aforesaid deed. She has appealed and assigns this award for error, contending that the deed of trust was not intended to, and did not in point of fact, embrace this cemetery stock, and that her one-fourteenth interest therein should have been awarded to her directly.

The appellee contends that it is apparent from the instrument that the grantor intended to convey all of the personal property which came to her under the will of her husband from the estate of William Howell, deceased; that this is shown by the recital and by the general words of the grant, and therefore the mere fact that she omitted specific reference to the cemetery stock is not sufficient to prevent it from passing under the deed.

In construing a deed, so far as possible, the whole instrument should be considered to arrive at the intent of the parties. When we look at the present deed, we find in the recital that the property is referred to as that which the grantor was then entitled to “absolutely;” and when we come to the grant, the words are “all the right, title ... . of her, .... of in and to the personal property belonging to her and which is as follows,” after which there is a particular enumeration of property without any reference to the stock in question. When we look back at the will of William Howell it is seen that the cemetery stock is differentiated from his other personal property, in that the corpus of it is directed to be held in trust for a period of ten years from the date of his death. He died April 20,1889, and the deed of trust was executed February 11, 1899, at which time the stock was still in trust. With these facts in mind, it is evident that the word “absolutely” as used in the recital has significance, and it may well be that the parties to the deed did not intend this stock to pass thereunder. It appears, that in point of fact the parties themselves never treated the deed as if the stock had been transferred to the grantee, inasmuch. as the dividends thereon were always paid directly to Anna M. Keir Howell and not to the Trust Company. “Courts will if they can, give to the contracts of parties the exact effects which the parties themselves gave to them and interpret them just as they interpreted them:” Gillespie v. Iseman, 210 Pa. 1. “When we are asked to say what the parties meant or intended by their contract, it is entirely safe to point to their own construction of it, as evidenced by their course of dealing under it:” People’s Nat. Gas Co. v. Braddock Wire Co., 155 Pa. 22. It is true that William Howell directed in his will that the legatees should be entitled to receive the dividends directly; but even if we account Anna M. Keir Howell as a legatee, had the deed been intended to cover this stock, her grantee would have stood in her place and would have been entitled to receive the dividends.

Looking at the deed as a whole, together with the circumstances of the case, and considering the significant fact of the omission of the cemetery stock from the specific designation of property found in the grant, we are convinced that it did not pass thereunder, and that the award should have been to Anna M. Keir Howell directly, and not to her grantee. In reaching this conclusion, we have not overlooked the final clause of the deed; but the fact that the grantor was “apprised” of the “value of her interest” in the estate of William Howell, deceased, and “understood the same,” is far from saying that she considered herself entitled or had the intention to convey the stock in question.

The record is remitted to the court below with directions to modify its final decree in accordance with this opinion; the costs to be paid out of the trust estate held by the appellee.


text:
    Waslee, Appellant, v. Rossman.

      Deed, — Covenant—“Grant bargain and sell” — Recital—Mortgage— Extinguishment of mortgage — Husband and wife.

    1. Whatever shows the intent of the parties to bind themselves to a performance of the thing stipulated may be deemed a covenant without regard to the form of expression made use of. A recital that something is intended to bo done amounts to a covenant to do that thing.
    2. A recital in a deed that a certain mortgage “is intended to be paid off and satisfied of record,” is equivalent to a covenant to have the mortgage in question extinguished and satisfied of record. Such a covenant works an estoppel by deed against the covenantor, and, unless overcome, it is sufficient to defeat the foreclosure of the mortgage.
    3. If such a covenant is in a deed from a husband to a person who immediately reconveys the property to the wife of his grantor, the wife is entitled to its benefit, inasmuch as the third party is the mere conduit through which the title passes to avoid the doctrine of merger of husband and wife; in such case the fact that the wife takes the property for a nominal monetary consideration makes no difference, as the law will presume the transfer a gift from her husband.

      Deed — General warranty — Mortgage—“Grant, bargain and sell”— Act of May 28,1715,1 Sm. L. 94.

    4. The grantor in a general warranty deed is bound by the warranty, and cannot, as against the grantee, acquire title to the land in a proceeding on a mortgage which was a lien on it at the date of the deed.
    5. Where a person conveys land to another and causes his grantee to create a mortgage upon the land to himself and takes a reconveyance subject to the mortgage, and thereafter conveys the land to his wife through an intermediary the deed is within the act of 1716, and the words “grant, bargain and sell,” imply a covenant against the mortgage.

      Evidence — Written instrument — Reformation—Mistake—Mutual mistake — Reading paper.

    6. No written instrument can be reformed on proof of mistake, unless if be a mistake of both parties.
    7. In order to reform a deed on the ground of mistake, it must clearly appear by the testimony of witnesses who distinctly remember the fact that a mistake was made. The testimony must be clear, precise and indubitable, and of such weight and directness as to carry conviction to the mind.

      8. If a party who can read will not read a deed put before him for execution, he is guilty of supine negligence, which is not the subject of protection either in equity or at law.
    Argued Jan. 11, 1911.
    Appeal, No. 295, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,700, on verdict for defendants in case of George W. Waslee, Assignee of G. Percy Lemont, Assignee of George W. Waslee, who was Assignee of the Continental Title & Trust Company, who was Assignee of George W. Waslee, the Mortgagee, v. Paul Rossman, Mortgagor, and Lulu Waslee, real owner.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Elkin, Stewaet and Moschziskee, JJ.
    Affirmed.
    Scire facias sur mortgage. Before McMichael, J.
    The court charged in part as follows:
    This suit is upon a mortgage for $4,250. The suit was brought in the name of G. Percy Lemont, assignee of George W. Waslee, who was assignee of the Continental Title and Trust Company, who was assignee of George W. Waslee, the mortgagee, v. Paul Rossman, mortgagor, and Lulu Waslee, real owner. No interest was ever paid upon this mortgage, and the suit is to recover the principal sum and interest. The mortgage is secured upon the premises 1942 North Eleventh street, Philadelphia. It appears that George W. Waslee had agreed to purchase the property from Moses Hamburger and had paid $100 on account, and at or about May 8, 1905, he paid the balance of the purchase money for the property to Moses Hamburger. George W. Waslee, however, did not take the title in his own name, but on May 8, 1905, Moses Hamburger conveyed to Paul Rossman (who was a straw man), the consideration mentioned in the deed being $4,250. On the same day, Paul Rossman created a mortgage for $4,250, upon which the present suit has been brought; and upon the same day, May 8, 1905, Paul Rossman conveyed to George W. Waslee for a consideration mentioned in the deed of one dollar, subject to the mortgage of $4,250 from Rossman to Waslee. The deed from Hamburger to Rossman, and the mortgage from Rossman to Waslee was recorded May 8, 1905. The deed from Rossman to Waslee was not recorded until January 9, 1906. On January 9, 1906, George W. Waslee assigned to the Continental Title and Trust Company the mortgage for $4,250, and on the same day George W. Waslee created a mortgage in favor of the Continental Title and Trust Company for $2,500. The assignment and the mortgage for $2,500 were recorded on January 9,1906. The transaction between George W. Waslee and the Continental Title and Trust Company was as follows: The Continental Title and Trust Company loaned to Waslee $2,500 upon his collateral note, with the mortgage for $4,250 as collateral security, and also took a mortgage from Waslee for $2,500 upon the same property. On January 12th, 1906, George W. Waslee, by deed recorded the same day, conveyed the premises in question to Paul Rossman for a consideration mentioned in the deed for $1.00, subject to a mortgage of $2,500 created in favor of the Continental Title and Trust Company. The deed from Waslee to Rossman of January 12, 1906, recited the deed from Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, and then uses the following words: “which said mortgage debt is intended to be paid off and satisfied of record.” On the same date, Paul Rossman conveyed the premises to Lulu Waslee, for a consideration mentioned in the deed of $1.00, subject to the $2,500 mortgage. On March 11, 1907, Lulu Waslee paid to the Continental Title and Trust Company $2,500, which George W. Waslee had borrowed, the $2,500 mortgage to the Continental Title and Trust Company was satisfied of record as of March 15, 1907, and the mortgage of $4,250 was assigned back to George W. Waslee. This assignment was recorded on March 12, 1907. On October 3, 1908, George W. Waslee assigned to G. Percy Lemont the $4,250 mortgage. This assignment was recorded January 7, 1909. G. Percy Lemont gave no consideration whatever for this assignment, but acted in the matter simply for Waslee, as what is called a “straw man.” G. Percy Lemont brought suit upon the mortgage, and the praecipe for sci. fa. is marked filed October 22,1908. On May 1,1909, G. Percy Lemont reassigned to George W. Waslee the $4,250 mortgage, which assignment was recorded May 7, 1909.
    As I have reached the conclusion that there is nothing to be submitted to the jury, and that it is the duty of the court to instruct the jury to find a verdict, I shall give my view briefly in order that my view as trial judge may be reviewed by the court in banc, or, if desired by the Supreme Court.
    Among other defenses set up by the defendant, is the equitable defense that George- W. Waslee is stopped from enforcing the mortgage against Lulu Waslee, because in the deed of January 12, 1906, he conveyed the premises to Rossman subject to the $2,500 mortgage, and reciting the deed of Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, used thereafter the following words: “Which said mortgage debt is intended to be paid off and satisfied of record,” and the deed from Paul Rossman to Lulu Waslee, recites the consideration of $1.00, subject to the $2,500 mortgage. (The deed from Paul Rossman to Lulu Waslee, of January 12, 1906, is silent as to the $4,250 mortgage). If the present mortgage had been sold for value and the assignee of the mortgage were attempting to enforce the mortgage, the law might be different, but the trial judge is of opinion that the defense is a valid one against George W. Waslee, and as it arises from the deeds themselves, there is no question for a jury to consider; and that the present plaintiff, George W. Waslee, cannot enforce his mortgage against Lulu Waslee, because the words of his deed to Paul Rossman, of January 12, 1906, “which said mortgage debt is intended to be paid off and satisfied of record,” estop him from enforcing the $4,250 mortgage.

      For this reason the jury is instructed to find a verdict for the defendant. [3]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (2) directing a verdict for defendant; (3) charge as above quoting it; (4) in refusing a motion for judgment for plaintiff n. o. v.; (5, 6) in rejecting offers of evidence as to a mistake of scrivener in inserting in the deed the covenant as to the satisfaction of the mortgage.

      Frederick A. Sobernheimer, with him Joesph W. Gross, for appellant.
    A mortgage does not necessarily merge or become extinct by being united in the same person with the fee: Girard Trust Co. v. Baird, 212 Pa. 41; Duncan v. Drury, 9 Pa. 332; Loverin, Hall & Co. v. Humboldt Safe Dep. & Tr. Co., 113 Pa. 6; Carrow v. Headley, 155 Pa. 96; Fenton v. Fenton, 208 Pa. 358.
    The declaration in the present case was not made to the appellee, Lulu Waslee, but to Rossman, the grantor, while Lulu Waslee joined in the declaration, and she is the person setting up the estoppel: McCouch v. Loughery, 12 Phila. 416; Miles v. Miles, 8 W. & S. 135.
    Where a party with full knowledge of all the facts creating the liability, acquiesces in what has been done, and silence in such a case, after a reasonable time, will amount to a ratification: 2 Herman on Estoppel and Res Judicata, sec. 769, p. 895; Susquehanna Mutual Fire Insurance Co. v. Swank, 102 Pa. 17.
    The act of 1715 has no application: Whitehill v. Gotwalt, 3 P. & W. 313; Shaffer v. Greer, 87 Pa. 370; Ake v. Mason, 101 Pa. 17; Trotter v. Page, 7 W. N. C. 469; Gilham v. Real Estate Title Ins. & Trust Co., 203 Pa. 24.
    Parol evidence is admissible to show that through a mistake of the scrivener more property was conveyed by a deed than was intended by the parties thereto: Chew v. Gillespie, 56 Pa. 308; Stamm v. Esterly, 8 Pa. D. R. 330; Lauchner v. Rex, 20 Pa. 464; Hamilton v. Asslin, 14 S. & R. 448; Middleton v. Thompson, 163 Pa. 112.
    April 10, 1911:

      Stanley Folz, with him Leon H. Folz, for appellee.—
    The mortgage was satisfied in point of law and the plaintiff was estopped from asserting the contrary by reason of the covenants and recital in the deed from Waslee to Rossman, dated January 12, 1906, upon the conveyance of the property to Mrs. Waslee: Campbell v. Shrum, 3 Watts 60; Taylor v. Preston, 79 Pa. 436; Penn v. Preston, 2 Rawle 14; Tyron v. Munson, 77 Pa. 250; Sergeant v. Ingersoll, 7 Pa. 340; Muntz v. Whitcomb, 40 Pa. Superior Ct. 553; Micldes v. Dillaye, 15 Hun, 296; George v. Brandon, 214 Pa. 623; Hutchinson v. Barnes, 34 Pa. C. C. R. 451; Shaw v. Galbraith, 7 Pa. 111; McWilliams v. Nisly, 2 S. & R. 507; Brown v. McCormick, 6 Watts 60.
    The covenant arising from the words "grant, bargain and sell” amounts to a covenant that the grantor has not done any act or created any incumbrance, whereby the estate granted by him might be defeated: Gratz v. Ewalt, 2 Binn. 95; Funk v. Voneida, 11 S. & R. 109; Seitzinger v. Weaver, 1 Rawle, 377; Knepper v. Kurtz, 58 Pa. 480; Vetter v. Vetter, 13 Pa. Superior Ct. 584.
    The mortgage was without consideration: Carothers v. Sims, 194 Pa. 386.
   Opinion by

Mr. Justice Moschzisker,

Prior to the beginning of the transactions which we are about to state, George W. Waslee, the plaintiff, had lived for several years with Lulu Waslee, the defendant, whom he called his wife, although they had not been formally married. In May, 1905, the plaintiff purchased a piece of real estate, 1942 N. 11th street, Philadelphia, for $4,250. At his direction the title was conveyed to one Rossman, who, on the same day, May 8, 1905, executed a mortgage to Waslee for the amount of the purchase money, and forthwith deeded to him the property, subject to the mortgage. This deed, although delivered on its date, was not recorded until January 9, 1906. On that day the plaintiff assigned the mortgage to the Continental Title & Trust Company as collateral for a loan of $2,500, and, as additional security, he executed another mortgage upon the same property in the amount of the loan. Three days later Waslee and Lulu Waslee, the latter referred to in the deed as the wife of the former, gave a deed to Rossman, expressly subject to the $2,500 mortgage, and reciting therein the deed of May 8,1905, from Rossman to Waslee, subject to the $4,250 mortgage, adding “which said mortgage debt is intended to be paid off and satisfied of record.” Directly thereupon Rossman conveyed the property to the defendant, subject only to the $2,500 mortgage, describing her as “the wife of George W. Waslee.” About four months after this the plaintiff and the defendant were formally married, and on March 11, 1907, the $2,500 loan was paid off, the mortgage satisfied of record, and the $4,250 mortgage reassigned to Waslee. In August, 1908, a divorce suit was instituted by the plaintiff against the defendant, and, while the proceedings were pending, Waslee assigned the latter mortgage to a straw man, who subsequently reassigned it to him. On October 22, 1908, a sci. fa. issued upon this mortgage. The court below held that it must be treated as satisfied, and directed a verdict for the defendant; the plaintiff has appealed from the judgment thereon.

In order properly to review this case it is necessary to have in mind not only the conceded facts as we have narrated them, but also certain testimony adduced at the trial. The plaintiff offered the mortgage and its assignments in evidence, and stated that neither the principal nor any interest thereon had ever been paid. The defendant then offered the other documents, and testified that Waslee had made a gift of the property to her; that he had given her the title papers, and had said “the house is yours outside of the mortgage.” There is some confusion in the testimony as to this statement; the plaintiff contends that the reference was to the $4,250 mortgage,’ and the defendant that the $2,500 mortgage- was meant. We think the latter is the more probable, but for the purposes of this case it is sufficient to say that it is hot clear. The defendant claimed that she did not know of any intention on the part of her husband to keep the $4,250 mortgage alive after the gift of the house to her. The notary public who acted at the time the property was placed in Mrs. Waslee’s name, stated that the plaintiff had introduced the defendant as his wife, and had remarked, “this property I am conveying is subject to $2,500.” In rebuttal, the plaintiff testified that the house was originally purchased with his money; that Rossman acted in his behalf in taking the title, in executing the mortgage, and in reconveying the premises to him; that he had conveyed the title to his wife at a time when he had placed an express business in her name, and that the conveyance was made for the purpose of giving her a good business credit; that Rossman was a straw man in that transaction; that the $2,500 was borrowed by him for the purpose of purchasing this express business, and after its sale, the proceeds were given to his wife, who deposited the money in a bank account kept in her name; that the $2,500 was subsequently paid off with his money and at his direction, by a check on this bank account; that after this “she told me she had paid the mortgage off and had the other mortgage reassigned back to me — the $4,250 mortgage.” He denied that he had said anything about the property being subject only to $2,500; and stated that he did not know of the recital in the deed to the effect that the $4,250 mortgage was intended to be paid off and satisfied of record, as he “never read it.” Finally, he asserted that it had always been his intention to keep the $4,250 mortgage alive and to hold it for himself. On cross-examination, he admitted that he had sworn in the divorce proceedings “that he had no personal estate;” “that the respondent is in possession of and has title in-her own name to the premises, 1942 N. 11th St.;” and that, “these premises are clear of incumbrance and cost $4,250.” He explained, however, that he did not know that a mortgage was personal estate, and that he only meant that the property was clear of the $2,500 mortgage. The scrivener who drew the deed to Mrs. Waslee was produced by the plaintiff, but no material evidence was elicited from him. The foregoing is a sufficient summary of the testimony material to a proper determination of the legal points involved in this appeal.

On the case as it developed, the plaintiff had the burden of overcoming (1) the recital in the deed of January 12, 1906, to the effect that the mortgage of $4,250 “is intended to be paid off and satisfied of record;” (2) the express warranty therein; (3) the implied covenant arising from the words “grant, bargain, and sell.”

1. “Whatever shows the intent of the parties to bind themselves to a performance of the thing stipulated, may be deemed a covenant, without regard to the form of expression made use of:” Taylor v. Preston, 79 Pa. 436, 443. “A recital that something is intended to be done amounts to a covenant to do that thing:” Elphinstone’s Interpretation of Deeds, *415; 8 Am. & Eng. Ency. of Law (2d ed.), 55, 61. Such recitals were construed to be covenants in Penn v. Preston, 2 Rawle, 14; Tryon v. Munson, 77 Pa. 250, and in Muntz v. Whitcomb, 40 Pa. Superior Ct. 553. Prima facie the recital under consideration plainly shows an intention on the part of Waslee to have the mortgage in question extinguished and satisfied of record, and it should be viewed as a covenant so to do. This covenant works an estoppel by deed against the covenantor, Shaw v. Galbraith, 7 Pa. 111; George v. Brandon, 214 Pa. 623; Muntz v. Whitcomb, “supra; and, unless overcome, it is sufficient to defeat the foreclosure of the mortgage.

The covenant can be taken advantage of by Mrs. Waslee as a subsequent grantee of the land, and she may be treated as the covenantee; for, although the recital appears in the deed to Rossman, he, admittedly, was but a medium used to avoid the doctrine of merger of husband and wife: 21 Cyc. 1284; Stickney v. Borman, 2 Pa. 67; Alexander v. Shalala, 228 Pa. 297. In the language of this court in Whitby v. Duffy, 135 Pa. 620, 627, “it is evident that .... (Rossman) .... was the mere conduit through which the title was to pass. In contemplation of law, the fee never vested for a single moment in him; it passed through him without stopping. It is almost absurd to suppose that he was to take any interest, however slight, in the property.” That Mrs. Waslee took the property for a nominal monetary consideration can make no difference, as the rights of creditors are not involved. “Where a man transfers either real or personal property to his wife, the presumption is that it is a gift from him to her:” Wilson v. Silkman, 97 Pa. 509; Bowser v. Bowser, 82 Pa. 57; also see Edwards v. Edwards, 170 Pa. 212. Whatever may have been the inducing cause for the conveyance, we must take it, in the present case, that the gift was fully executed; for not only was the institution of this action an implied admission of the defendant’s title, but, in point of fact, Mrs. Waslee is expressly named in the sci. fa. as “the real owner” of the property; and as such she is entitled to all of the benefits of the covenant under consideration.

2. In George v. Brandon, 214 Pa. 623, we held that the grantor in a general warranty deed is bound by the warranty, and cannot, as against the grantee, acquire title to the land in a proceeding on a mortgage which was a lien on it at the date of the deed. See 1 Jones on Mortgages, sec. 867; 1 Greenleaf on Evidence, sec. 24, and the other cases cited above on estoppel.

3. Under the Act of May 28, 1715, 1 Sm. L. 94, sec. 6, the words “grant, bargain, and sell” in a duly recorded fee simple deed, “shall be adjudged an express covenant to the grantee, his heirs and assigns, to wit: That the grantor was seized of an indefeasible estate in fee simple, free from incumbrance done or suffered from the grantor .... as also for quiet enjoyment against the grantor, his heirs, and assigns, unless limited by express words contained in such deeds.” The covenant is that “the grantor had done no act, nor created any incumbrance, whereby the estate granted by him might be defeated:” Gratz v. Ewalt, 2 Binney, 95; Whitehill v. Gotwalt, 3 Penrose & Watts, 313; Seitzinger v. Weaver, 1 Rawle, 377. The effect of the act is illustrated by the ruling in Vetter v. Vetter, 13 Pa. Superior Ct. 584,. that, “where a joint owner in the fee becomes the owner of an interest in a mortgage on the premises and by deed conveys all his right, title, .... etc., and in addition uses the words 'grant, bargain, and sell’ without a reference to the mortgage, there is an implied covenant against the incumbrance;” and in Shaffer v. Greer, 87 Pa. 370, where there was an offer to show that prior to the execution of the deed the grantee was informed by the grantor that the incumbrance was a lien which the former would have to pay, and that when so informed he made no reply, it was held that this was not sufficient to overcome the implied covenant against the incumbrance. In the deed under review there are no “express words” limiting the effect of the words “grant, bargain, and sell,” and the only reference to the mortgage includes the statement that it is to be satisfied. The deed is within the act of 1715, and the mortgage is an “incumbrance suffered from the grantor,” for it was brought into existence by direction of the plaintiff while the property belonged to him. Although Waslee did not physically execute the mortgage, Rossman created it for him; in so doing “he .... (Ross-man) .... was no more than a conduit pipe of the legal title, and bound to give it any direction that .... (Waslee) .... might dictate,” Sergeant v. Ingersoll, 7 Pa. 340, 345; and his act was that of the plaintiff within the meaning of the statute.

We see nothing in the testimony relied upon by the plaintiff to estop the defendant from invoking the protection of the covenants in the deed against the mortgage under foreclosure. The reassignment of the mortgage by the trust company to the plaintiff was but natural, as he was its debtor and had made the original transfer to it; and the mere fact that Waslee continued to hold the mortgage unsatisfied for a period of about two years— considering that no interest was demanded or paid during that time — even if the defendant had notice, which she denies, would not be sufficient to estop her from setting up her present defense: Shaffer v. Greer, supra. The only possible question is, Notwithstanding the covenants, was there enough in the evidence to justify a submission of the issues? And this gives rise to the inquiries: (1) Had the parties mutually understood and agreed . that the plaintiff was to hold the mortgage as a subsisting incumbrance against the real estate conveyed to the defendant? (2) Was the express covenant for the satisfaction of the mortgage inserted in the deed by mistake? (3) Was a limitation of the implied covenant against “incumbrances done or suffered by the grantor” omitted therefrom by mistake?

In disposing of this branch of the case, we shall first consider the exclusion of the evidence covered by the fifth and sixth assignments. The testimony sought to be elicited, as shown by the offer, was “that the part of the recital, namely, 'subject to the payment of a certain mortgage debt or principal sum of $4,250, which said mortgage debt is intended to be paid off and satisfied of record’ was a mistake on the part of this scrivener, without authority or consent on the part of Mr. Waslee.” There was no allegation in the offer that the scrivener inserted the covenant through a mutual mistake of the parties. “No written instrument can be reformed on proof of mistake, unless it be a mistake of both parties. . . . The plaintiff’s offer then was not to show a mutual mistake. ... It follows that the evidence offered could not have availed the plaintiff had it been received, and it was therefore rightly rejected:” Cooper v. Farmers’ Mut. Fire Ins. Co., 50 Pa. 299, 307; Youngstown Elec. Lt. Co. v. Butler County, 21 Pa. Superior Ct. 95; Coppes v. Keystone Paint & Filler Co., 36 Pa. Superior Ct. 38.

The plaintiff did not attempt to deny the deed containing the covenant; he contented himself with the offer just disposed of and the statement that he had never read the deed. “If a party who can read, as ... . (Mr. Waslee) .... could, will not read a deed put before him for execution .... he is guilty of supine negligence, which, .... is not the subject of protection either in equity or at law:” Greenfield’s Est., 14 Pa. 489, 496; Cunningham v. McCready, 219 Pa. 594. The documentary evidence was for the court, and after the deeds had been introduced the burden was upon the plaintiff to overcome the effect of his covenants. When the plaintiff took up this burden, he practically undertook to reform the deed. Had the evidence depended upon been sufficient in quality for the purpose, it might have been submitted to the jury: Helmbold v. Man, 4 Wharton, 410. But, without any testimony directly to the effect that there was an understanding between Waslee and his wife that the mortgage was to be kept alive, or that the covenant for its satisfaction was not to be incorporated in the deed, or that such covenant had been placed there by mutual mistake, or that an express limitation of the implied covenant against incumbrances arising from the use of the words, “grant, bargain, and sell” had been omitted from the deed by mistake, the plaintiff sought to have such inferences drawn in his favor. “In order to reform a deed on the ground of mistake, it must clearly appear by the testimony of witnesses who distinctly remember the facts that a mistake was made .... The testimony must be clear, precise, and indubitable, and of such weight and directness as to carry conviction to the mind:” Graham v. Carnegie Steel Co., 217 Pa. 34, 37. The testimony relied upon by the plaintiff was not of that character.

On the whole case, we conclude that the learned court below committed no error in giving binding instructions for the defendant. The assignments are overruled, and the judgment is affirmed.


text:
    Hoopes’s Estate.

      Will — Construction—Trusts and trustees — Active trust — Limitation over — Restriction on prior gift.

    1. If a testator in one part of his will gives to a person an absolute interest, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly.
    2. The rule of construction which limits the death of the first taker to the testator’s lifetime is adopted in aid of what is conceived to be the general intent of a will, but it is never applied where the beneficiary is expressly treated as living at a period subsequent to the death of the testator.
    3. Testatrix provided as follows: “I give.....absolutely unto my grandchildren Lewis and Emily, one-half of my estate .... to be equally divided between them.” Immediately after this in the same sentence she appointed a person, subsequently named in the will as executor, “guardian of my said grandchildren until they respectively arrive at the age of twenty-five years,” the guardian “to pay said principal sum to them on his or her arrival at that age respectively.” The will then proceeded: “In case of the death of one or both of my said grandchildren before attaining the age of twenty-five years without issue, the share of such deceased grandchild shall revert to my estate, but in case of the death of one or both of said grandchildren before attaining the age of twenty-five years leaving issue the child or children of such deceased parent shall receive the share of his, her or their parent. I hereby direct that said guardian shall use the income of said one-half of my estate for the maintenance, support and education of my said grandchildren and I direct that they shall be educated in a proper manner and if the income .... shall not be sufficient .... I direct that sufficient amount of principal shall be used for said purpose which amount of principal shall be deducted from their one-half of my estate. ... It is my desire and I hereby authorize and direct my executor to sell and dispose of all my real and personal estate .... whenever said executor shall deem it prudent to do so. . . . I direct that the proceeds of such sales and the remainder of my estate be invested by my executor.” Held, that the granddaughter took an equitable estate in fee, absolute and indefeasible upon her attaining the age of twenty-five years, but determinable by her death prior to that time.
    Argued Jan. 13, 1911.
    Appeal, No. 343, Jan. T., 1910, by Emily Hoopes, from decree of O. C. Phila. Co., April Term, 1901, No. 693, dismissing exceptions to adjudication in Estate of Martha E. Hoopes, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.

      Wm. B. S. Ferguson, for appellant.
    Appellant contends that this is a present gift of the principal, and the other provisions are intended to postpone payment, only, that such postponement is illegal and that the bequest is presently payable: Reed v. Buckley, 5 W. & S. 517; Roberts’ App., 59 Pa. 70; Provenchere’s App., 67 Pa. 463; Reed’s App., 118 Pa. 215; Rewalt v. Ulrich, 23 Pa. 388; Wengerd’s Est., 143 Pa. 615; Morrison v. Truby, 145 Pa. 540; Fulton v. Fulton, 2 Grant (Pa.), 28; Mickley’s App., 92 Pa. 514; McAlpin’s Est., 211 Pa. 26; Siegwarth’s Est., 33 Pa. Superior Ct. 622; Neubert v. Colwell, 219 Pa. 248; Smith’s Est., 226 Pa. 304; Kerr v. Bosler, 62 Pa. 183; Page’s App., 71 Pa. 402; Blease v. Burgh, 2 Beaven, 221; Safe Dep. & Trust Co. v. Wood, 201 Pa. 420; Reed’s App., 118 Pa. 215; Jamieson’s Est., 34 Pa. C. C. R. 417; Phillips’ Est., 205 Pa. 511.

      iRuby B. Vale, for appellee.
    General rules of construction as to the meaning of particular words of a will must bend to the intention of the testatrix as gathered from the entire will and not as gathered from a particular sentence or paragraph contained therein: Provenchere’s App., 67 Pa. 463; Woelpper’s App., 126 Pa. 562; Dean v. Winton, 150 Pa. 227; Sheets’ Est., 52 Pa. 257; Krebs’ Est., 184 Pa. 222; Shower’s Est., 211 Pa. 297.
    A reading of the entire will discloses that an active trust with gift over has been created by the testatrix .for the benefit of Emily Hoopes for a definite period: Harbster’s Est., 133 Pa. 351; Sheets’ Est., 52 Pa. 257; Eshbach’s Est., 197 Pa. 153.
    April 10, 1911:
    The active trust thus created must be sustained in order to protect the interest of those in remainder: Sheets’ Est., 52 Pa. 257; Mooney’s Est., 205 Pa. 418.
    The gift over should be sustained as an executory devise for the same purpose: Eichelberger v. Barnitz, 9 Watts, 447; Kelso v. Dickey, 7 W. & S. 279; McCullough v. Fenton, 65 Pa. 418; Stoner v. Wunderlich, 198 Pa. 158.
   Opinion by

Mr. Justice Moschzisker,

The testatrix provided: “I give, .... absolutely unto my grandchildren, Lewis E. Hoopes, Jr., and Emily Hoopes one-half of my estate .... to be equally divided between them.” Immediately after this in the same sentence, she appoints a person, subsequently named in the will as executor, “guardian of my said grandchildren until they respectively arrive at the age of twenty-five years,” the guardian “to pay said principal sum to them on his or her arrival at that age respectively.” The will then proceeds: “In case of the death of one or both of said grandchildren before attaining the age of twenty-five years without issue, the share of such deceased grandchild shall revert to my estate, but in qase of the death of one or both of said grandchildren before attaining the age of twenty-five years leaving issue t'he child or children of such deceased parent shall receive the share of his, her or their parent. I hereby direct that said guardian shall use the income of said one-half of my estate for the maintenance, support and education of my said grandchildren and I direct that they shall be educated in a proper manner and if the income .... shall not be sufficient .... I direct that sufficient amount of principal shall be used for said purpose which amount of principal shall be deducted from their one-half of my estate. ... It is my desire and I hereby authorize and direct my executor to sell and dispose of all my real and personal estate .... whenever said executor shall deem it prudent to do so ... . I direct that the proceeds of such sales and the remainder of my estate be invested by my executor.”

Upon a former audit, the other one-half of the estate was awarded under the will to a son of the testatrix, absolutely and free of trust. The grandchildren were then minors, and their interests were not passed upon. Emily Hoopes, one of these grandchildren, is now of full age. At the audit of the present account she claimed that upon reaching her majority she was entitled to her share absolutely and free of trust; contending that the provisions of the will postponing the payment of the principal were void, and that the limitations -over were only intended as substitutionary b’equests in the event of her death during the life of the testator. The court below held that the will created a valid trust for this share until she should reach the age of twenty-five years, and awarded the principal to the trustee named in the will. Emily Hoopes has taken this appeal and assigns the award for error.

The first clause of the will standing alone would give each of the grandchildren a fee simple absolute, but what follows makes it clear that the testatrix did not so intend. “A will must be construed as an entirety, so that, if possible, every part of it may take effect. Hence, the independent meaning of one provision must often be modified by reading it in connection with t‘he others. ... It may be that if the first clause .... stood alone, it would give a fee simple .... absolute .... But .... the testator has declared in effect that such was not his intention. No principle is better settled than that if a testator in one part of his will give to a person .... an absolute interest .... and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given, qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee, was intended to be a lesser right:” Sheets’ Est., 52 Pa. 257; Krebs’ Est., 184 Pa. 222; Shower’s Est., 211 Pa. 297; Elliott v. Diamond Coal & Coke Co., 230 Pa. 423.

The shares in question are placed in trust until the grandchildren shall respectively attain a given age. The trust is an active one: Mooney’s Est., 205 Pa. 418. “An active trust may be created as a protection to the beneficiary because of his inexperience, .... inability to manage his estate, or for any other purpose, not illegal, which the benefactor may deem wise or expedient:” Spring’s Est., 216 Pa. 529. It is apparent that the testatrix considered it inexpedient to turn over to her grandchildren the principal of the shares bequeathed to them until they should reach the age of twenty-five years; she, therefore, placed these shares in the control of a trustee, vesting in him the power to make investments, which of necessity included the right to reinvest the principal from time to time during the running of the trust: Eshbach’s Est., 197 Pa. 153. She further directs the trustee to use the income for the maintenance, support and education of her grandchildren, with discretionary power to consume principal for these purposes. It would be difficult to find a trust where the necessity for the control of the fund to carry out the intent of the testator was more apparent. In the words of Mr. Justice Green, in Harbster’s Est., 133 Pa. 351, “It is very clear, indeed, to us that the trust reposed in the executors is an .active trust, which makes it necessary at all times for them to have possession of the fund until it is ultimately paid over to the persons entitled to the principal.”

The present case is not within the line of authorities which rule that, where there is no limitation over or other lawful purpose to be served, a provision postponing the payment of an absolute bequest is void. Nor does it fall within the class of cases governed by the rule that a limitation over upon the death of the first taker will be construed to mean death within the lifetime of the testator. Here, first, not only are there limitations over, but, as we have already shown, there is an active trust to fulfill a lawful purpose; next, it is plain that the testatrix contemplated that her grandchildren would survive her, otherwise she would not have made such specific provision for the care of their estates and for their respective maintenance and education until a certain age. The rule of construction which limits the death of the first taker to the testator’s lifetime is adopted in aid of what is conceived to be the general intent of a will, but it is never applied where the beneficiary is expressly treated as living at a period subsequent to the death of the testator: Stoner v. Wunderlich, 198 Pa. 158, 164.

We construe the will to vest in the appellant an equitable estate in fee, absolute and indefeasible upon her attaining the age of twenty-five years, but determinable by her death prior to that time: Kelso v. Dickey, 7 W. & S. 279; McCullough v. Fenton, 65 Pa. 418.

The assignments of error are overruled and the decree of the court below is affirmed at the cost of the appellant.


author: Per Curiam,

text:
    Jaffe, Appellant, v. Cooperman.

      Judgment — Opening judgment — Discretion of court — Review.
    The Supreme Court will not review the discretion of the lower court in opening a judgment in ejectment against a minor entered in default of a plea or answer, where the guardian ad litem of the minor petitioned the court to open the judgment on the ground that the default had occurred through the absence of counsel on vacation, and the guardian alleged a just and true defense, and supported his petition and allegations by proof which was passed upon by the court and made the basis of its action.
    Argued Jan. 17, 1911.
    Appeal, No. 349, Jan. T., 1910, by plaintiff, from order of C- P* No. 4, Phila. Co., June T., 1909, No. .3,290, making absolute rule to open judgment in case of Peter Jaffe v. Nathan Cooperman et al. Before
    April 10, 1911:
    Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Petition to open judgment.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order making absolute rule to open judgment.

      Charles L. Smyth, for appellant.

      Jacob Weinstein, with him M. B. Elwert, for appellees.
   Per Curiam,

In this action of ejectment judgment was taken against Israel H. Óooperman, one of the defendants, in default of a plea or answer. He was a minor, for whom a guardian ad litem had been appointed. The judgment by default was taken on July 21, 1910, and; on the 28th of the same month, application was made to have it stricken off. This was denied on September 20, 1910, and three days later a petition was presented by the guardian ad litem, asking that the judgment be opened. The petition set forth that the plea and answer had not been filed within the required time because counsel for the petitioner was absent on his vacation when they ought to have been filed, and there was an averment of a just, true, full and legal defense to the action. To this an answer was filed, and, after depositions had been taken in support of the petition, the judgment was opened. No opinion was filed giving the reason which induced the court to exercise its discretion in relieving the defendant from the judgment taken against him by default, but it may be assumed that it regarded the averments in the petition as sufficiently sustained. We have not been persuaded that its discretion was abused in opening the judgment, and the appeal is dismissed at appellant’s costs.


author: Mr. Justice Potter, Mr. Justice Moschzisker,

text:
    Lehigh Valley Coal Company, Appellant, v. Girard Trust Company.

      Mortgages — Corporate mortgage — Sinking fund — Coal lands.

    Where a mortgage on coal lands, given to a trustee by a mining company, to secure an issue of bonds, provides that “where all said bonds shall have been purchased, or when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding the payments into the hands of the trustee for a sinking fund shall cease,” the mortgagor may cease to make annual payments into the sinking fund, whenever the amount of the principal and interest then due and accrued upon the bonds outstanding is in the hands of the trustee, provided however that the mortgagor shall continue to pay all interest on the outstanding bonds as it accrues, and continue to keep in the hands of the trustee an amount of securities sufficient to pay all outstanding bonds.
    Me. Justice Moschziskeb dissents.
    Argued Jan. 18, 1911.
    April 10, 1911:
    Appeal, No. 216, Jan. T., 1910, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. Term, 1909, No. 4,340, dismissing bill in equity in suit of Lehigh Valley Coal Company v. The Girard Trust Company, Trustee.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Bill in equity for an injunction. Before Staake, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      John G. Johnson, with him James Wilson Bayard, for appellant.

      John Hampton Barnes, for appellee.
   Opinion by

Mr. Justice Potter,

This appeal brings before us for construction the second clause of the mortgage of the Delano Land Company to the Girard Trust Company, trustee, dated December 1, 1891, to secure the payment of $1,200,000 of bonds, and providing for payments to a sinking fund. The mortgagor is required to pay to the trustee ten cents for each ton of coal shipped during each year from the mortgaged premises, and not less than $30,000 in each year. This obligation of payment to the sinking fund is limited as follows: “And when all said bonds shall have been purchased or when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding, the payments into the hands of the' party of the second part for a sinking fund, as aforesaid, shall cease.” The coal has evidently been mined more rapidly than was expected, and the payment of the minimum royalty has created a much larger fund than was anticipated; so large indeed, that an amount more than sufficient to pay off the bonds, principal and interest to date, is now in the hands of the trustee. But the bonds do not mature until 1932.

The question here involved, is whether the language of the agreement requires the payment to the trustee of an amount equal to the principal of the bonds, and the interest accrued thereon to such time; or whether it requires the payment of a sum equal to the principal of the bonds, and all the interest which may accrue thereon until the date of their maturity, r If the interpretation first suggested is correct, then the appellant has already made payments sufficient to meet the conditions. If the other suggestion is to be accepted as the proper meaning of the agreement, then a sum largely in excess of that required to pay the bonds at maturity must be paid by appellant to the trustee. The total amount of bonds now outstanding is stated as $1,082,000. It appears from the record that the amount paid in and held by the trustee in the sinking fund, in securities and cash, is now $1,093,655.08. If appellant is compelled to continue further sinking fund payments until the maturity of the bonds in 1932, the additional amount received by the trustee with the accumulated interest thereon, will be, as is estimated by the trial judge, more than $1,000,000, and the normal accumulations from the sinking fund will reach a further sum of more than $1,500,000; so that in round numbers the trustee will then have a total sum of considerably more than $3,500,000 to meet a demand for the payment at maturity of only $1,082,000 of bonds. The accumulation of such an excessive and unnecessary fund can serve no useful or wise purpose, and could hardly have been within the contemplation of the parties; nor can we see any compelling reason for the adoption of a construction of the wording of the agreement which would lead to such a result. If the plain words of the agreement required this extraordinary course to be pursued, there would be no alternative; but the provision is that payments to the sinking fund shall cease “when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding”; and this may fairly be taken to mean, the amount of the principal and interest then due and accrued upon the bonds outstanding. Especially is this true when we remember that the office of the sinking fund is to take the place, as security, of the coal mined and taken away from the mortgaged premises. If a fund sufficient to meet the principal and the accrued interest upon the bonds be always maintained in the hands of the trustee, it is all that the bondholders have any right to require. Such an amount, as above stated, is now in the hands of the trustee. Appellant through its counsel states in the printed brief of argument that it is willing that the accumulation of the income from the securities now in the sinking fund shall be added to that fund; and, if this be done, there should, in 1932, be in the hands of the trustee, a sum vastly in ¡ excess of what will be required to meet maturing bonds amounting to $1,082,000. Surely the margin from that source is quite sufficient to protect the bondholders from any reasonable contingency that may arise. The possibility of any failure to meet the payments of interest is very remote. The bondholders have the obligation of the mortgagor, or its successor, the appellant, and the further guarantee of the Lehigh Valley Railroad Company, and the security of the mortgaged premises, now shown to be worth more than 1900,000. In view of all these circumstances, we do not see that the interests of the bondholders can suffer in any way, if the appellant is relieved from making further payments to the sinking fund, provided that it continues to make payment of the interest which may from time to time become due and payable upon the outstanding bonds.

The decree of the court below dismissing the bill of the plaintiff is reversed; and the bill is reinstated; and it is further ordered and directed that a decree be entered granting to the plaintiff the relief for which it asks in the first and third prayers of the bill, which is in substance, that so long as the trustee has in the sinking fund provided by appellant, securities sufficient to pay all outstanding bonds, and while appellant continues to pay all interest due on such bonds as it accrues, it be relieved from making additional annual payments to the sinking fund; and that so long as these conditions continue, the appellee be enjoined from foreclosing the mortgage for default in the annual sinking fund payments.

Mr. Justice Moschzisker,

dissenting:

I dissent from the majority view for the reasons stated in the following excerpt from the opinion of the court below: “On the basis of the conditions existing to-day, the continuance of the payments by the complainant into the sinking fund for a future period of twenty-two years is undoubtedly onerous and apparently unnecessary, but where is there any guarantee that the conditions existing to-day will continue during the next almost quarter century? What may be the market value of the securities in the sinking fund during all of that time? What assurance beyond all question is there of the continuance of the valuation of the coal lands relied upon to-day as a security, upon their assessed valuation of $905,037? If they are continued to be mined during all of that period, may not their treasures of coal become exhausted? What assurance have the bondholders, who are the real parties in interest, that the excellent guaranty of the Lehigh Valley Railroad Company, under the conditions existing to-day, will be as valuable during the whole period of twenty-two years? What may or may not be the rates of interest existing during all of that period, and what the effects upon corporations of ill-advised national or state legislation. . . . What may be the value of gold coin during this period? It is apparent that the most optimistic person cannot prognosticate conditions, or their effect, for such a long period in the future.

“It is clear that the trust continues until the bonds are all paid and that those holding them that is 'the registered owners or the legal representatives of the registered owners’ are entitled to hold them until January 1, 1932, and to receive interest thereon from January 1, 1892, at the rate of five per centum per annum, payable in like gold coin, as the principal is to be paid. These payments are to be made without deduction for any tax or taxes which may be payable under any present or future law of the United States of America or of the State of Pennsylvania, .... the company agreeing to pay any such tax or taxes. . . .

“It is the holder of the bonds who is entitled to the security . . . .; the mode prescribed in the said mortage for the recovery of the principal and interest of said bonds being exclusive of all others.

“ The obligation of the complainant beginning with January 1, 1893, and continuing annually thereafter during the continuance of the trust, is to set apart for a sinking fund and pay over to the .... (trustees) .... a sum equal to ten cents per ton for each and every ton of coal of sizes above pea shipped during the preceding year (provided, that in no case shall such sum be less than thirty thousand dollars in any one year), to be appropriated to the purchase of such of the said bonds as can be obtained at prices not exceeding par, with accrued interest, which bonds shall be forthwith cancelled, and in case the bonds cannot be procured at or under par, with accrued interest, then the said trustees or trustee for the time being shall invest the amount then remaining in the said sinking fund in such securities (including the bonds intended to be hereby secured), as shall be approved by the party of the first part, which said securities and the proceeds thereof, when sold, together with all accumulations of interest thereon, shall form a part of the said sinking fund, and be applied to the purchase of bonds as aforesaid, when the same can be secured at or below par with accrued interest.

“ Can it be then held that it was the intendment of the parties, that is, of the complainant, of the bondholders to be secured by the mortgage, and of the trustee mortgagee, that the words: 'And when all said bonds shall have been purchased, or when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding, the payments into the hands of the party of the second part (the respondent herein) for a sinking fund, as aforesaid, shall cease/ means only the 'interest’ to the date when the amount of the sinking fund equals the amount of the then outstanding principal of the bonds, and that it does not refer to the 'interest’ recited in the first clause, viz.: which is to be paid to the holders of the bonds .... semiannually 'as the same shall become due and payable according to the terms in the said bonds contained and on the days therein respectively mentioned for the payment of the same/ which, as recited in the bonds, is, already shown to be 'interest thereon from the first day of January, 1892, at the rate of five per centum per annum, payable in like gold coin semiannually on the first day of the months of July and January in each year/ until, 'the principal sum of the bond shall become due and payable’ .... on the first day of January, 1932? We cannot so interpret this contract.”

With all respect for the opinion of the majority, so to interpret the contract, to my mind, is to change the plain meaning of the words used in the bond and to reform the instrument to the possible prejudice of the bondholders. It seems to me that the words, “when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding,” mean the principal and an amount equal to all interest which shall thereafter accrue to the maturity of the bonds.

I would affirm the decree as entered.