text:
    Gustine, Appellant, v. Westenberger.

      Mortgage — Acknowledgment—Forgery—Evidence.
    1. On the trial of a scire facias sur mortgage where forgery is set up as a defense, it is proper for the court to refuse to charge that the notary’s certificate of acknowledgment is sufficient and strong evidence of the genuineness of the mortgage, where the defendant denies that he executed the paper, the notary is unable to identify the defendant as the man who had signed it, three other persons testify that they saw the mortgage signed and that the person who signed it was not the defendant, and the wife of the defendant testifies that she procured her brother to personate her husband in the execution of the mortgage. Such a case is not one of a certificate of a notary before whom the real mortgagor actually appeared and an effort is made to contradict that to which the officer certifies.
    2. There is no rule of law which permits a husband’s property to be taken from him by a deed forged by his wife, or the forgery of which was procured by her.
    Argued Feb. 8, 1908.
    Appeal, No. 131, Jan. T., 1908, by plaintiff, from judgment of C. P. Delaware Co., June T., 1905, No. 342, on verdict for defendant in case of Eva I. Gustine v. John A. M. Westenberger.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed
    Scire facias sur mortgage. Before Broomall, J.
    At the trial when the defendant was on the stand he was asked this question in relation to a prior mortgage on the property:
    “Q. Was not that mortgage held by the Home Building & Loan Association paid off out of the proceeds of this very mortgage in suit? ” Objected to.
    The Court: The objection to that question is sustained with leave to the plaintiff to make the same inquiry when some knowledge of this mortgage or of its payment is traced to him. With leave to the plaintiff to renew the offer when some knowledge of the transactions inquired of are traced to the witness by his examination of him or other evidence. My thought is this, that it is necessary to the plaintiff’s case to establish to the satisfaction of the jury that this mortgage was executed by the defendant or was executed with his previous authority or subsequent ratification, and so far as ratification is concerned there can be no ratification without knowledge, the court holding that the preliminary requisite of ratification— some evidence must be established before the question ruled out can be inquired of. [11]
    Similar questions were also rejected [12,13].
    Plaintiff presented the following points :
    1. The execution and acknowledgment of the mortgage in suit evidenced by the official notarial certificate and the subsequent recording of the mortgage is sufficient and strong evidence of the genuineness of the mortgage and entitles the plaintiff to a verdict in her favor unless overcome by convincing countervailing evidence which satisfies the jury to the contrary. Answer: The court is unable to say that the certificate of the notary public is sufficient and strong evidence of the genuineness of the mortgage. The law makes it evidence. It is technically evidence. But you will see that if the facts certified to in the certificate are successfully attacked by testimony, why not only the evidence of the certificate is not sufficient and not strong, but if the evidence in your judgment attacks it, overwhelms it with defeat, why, of course, it is no evidence, you will not be governed by it at all. [1]
    2. (Not read to jury.) In the consideration of the evidence upon the question of the execution of the paper if the jury do not believe the statement of the witness, John Westenberger, that the execution was not authorized by him and also that he was not a party to the perpetration of a fraud upon the plaintiff by deceiving her into a belief in the genuineness of the mortgage they may disbelieve his defense and find a verdict for the plaintiff. Answer: Refused. [2]
    3. (Not read to jury.) If under all the evidence in the case the fraud in the case was that of defendant’s wife the husband would in law be answerable for this to the plaintiff as for his own fraud and the verdict should be for the plaintiff. Answer: Refused. [3]
    4. The proofs offered by the plaintiff are sufficient in the first instance to entitle her to a verdict and under all the evidence the jury may find a verdict in her favor. Answer: That can’t be affirmed just as it is written. The law is that the certificate of the notary public is written prima facie evidence, and if there were no other proofs in the case that certificate wTould prevail and in that sense the certificate of the notary public is sufficient, but if, as I said before, it is to your satisfaction shown that the certificate is not true, why, of course, the facts found in the certificate are not the facts you would find by your verdict. [4] '
    5. Under all the evidence the jury may find a verdict in her favor. Answer: Well, it is proper tó say, that in the judgment of the court, by which you are not bound at all, the weight of the evidence is against this certificate, and I do not hesitate to say so, at the same time saying that you are not bound by the view that the court takes of the weight of the evidence. [5]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 5) above instructions, quoting them; (11-13) rulings on evidence, quoting the bill of exceptions.

      O. B. Dickinson, with him Edward P. Bliss, for appellant.—
    There is flat and explicit authority for the proposition that a certificate of acknowledgment has the same legal effect as if the plaintiff had called the subscribing witnesses and had proven the execution in a formal way: Brotherton v. Livingston, 3 W. & S. 334; Sutherland v. Ross, 6 Montg. 203; Com. v. Haines, 97 Pa. 228; Carr v. Coke Co., 170 Pa. 62; Heeter v. Glasgow, 79 Pa. 79; Cover v. Manaway, 115 Pa. 338; Lewars v. Weaver, 121 Pa. 268; Michener v. Cavender, 38 Pa. 334; Reineman v. Moon, 29 Pitts. L. J. 167.
    April 19, 1909:
    The husband is answerable for the torts of his wife committed after marriage: Le Maistre v. Hunter, Brightly’s N. P. 494; Rice v. Yocum, 155 Pa. 538; Hess v. Heft, 3 Pa. Superior Ct. 582.

      G. Herbert Jenkins, with him William Taylor, for appellee.—
    No man can be deprived of his property by a forged deed or mortgage, no matter what may be the bona fides of the party who claims under it: Reineman v. Moon, 29 Pitts. L. J. 167; Com. v. Haines, 97 Pa. 228.
    There being not the slightest evidence of any knowledge, much less of any act of the defendant, or authority from him concerning the execution of the mortgage, it is difficult to see how the wife’s connection with the fraud could bind the innocent husband and in effect make the void mortgage valid as against him: Building & Loan Assn. v. Walton, 181 Pa. 201; Hess v. Heft, 3 Pa. Superior Ct. 582; Martin v. Robson, 65 Ill. 129; Quick v. Miller, 103 Pa. 67; Bovard v. Kettering, 101 Pa. 181; Wasserman v. Carroll, 2 Pa. Superior Ct. 551; Frost v. Knapp, 10 Pa. Superior Ct. 296; Nuding v. Urich, 169 Pa. 289; Kuklence v. Vocht, 21 W. N. C. 521; Bell v. Dawes, 9 Pa. C. C. Rep. 636.
   Opinion by

Mr. Justice Brown,

The defense in 'this case was that the mortgage was a forgery, and, under evidence that could not fairly have led to any other conclusion, the jury so found. On this appeal the chief complaint of the appellant is that the judge failed in his charge to give due weight to the notary’s certificate of acknowledgment. The mortgage was offered in evidence with no other proof of its execution than this certificate. It was admitted by the court as the duly executed act and deed of the appellee, and, but for the defense that followed, judgment would have been directed for the appellant.

The case, as presented to the jury under • uncontradicted evidence, showed that the mortgage had been executed and acknowledged by one who had personated the appellee. Called as a witness in his own behalf, the latter testified that he had not executed it, had never appeared before the notary public and that the first time he saw it was when the case was called for trial at a previous term of court. His wife, properly designated by the trial judge as a bad woman, had induced her brother to personate her husband in executing the mortgage and acknowledging it before the notary. That officer, who was one of the witnesses to the execution of the mortgage, was unable to identify the appellee as the man who had signed and acknowledged it before him. Albert W. James, the other witness to the execution of it, accompanied the man who signed it to the notary’s office and testified positively that the appellee was not the one who had signed and acknowledged it in his presence. Another witness, Albert James, the real estate agent to whom application was made for the loan, stated with equal positiveness that the appellee was not the man who had executed the mortgage in his office. Samuel Bunting, who finally negotiated the loan and saw the mortgage signed, testified in the same positive manner that the appellee was not the person who executed it. The admission of the wife of the appellee on the trial was that she needed money and asked her brother to go to the office of Mr. James and personate her husband in the execution of the mortgage, believing that she would be able to repay the loan herself. Under this state of facts the court could not have instructed the jury to give to the certificate of the notary the weight which counsel for appellant insist should have been attached to it: Michener and Wife v. Cavender, 38 Pa. 334; Reineman v. Moon, 12 Pitts. L. J. (N. S.) 167; Smith, Executrix, v. Markland et al., 000 Pa. 000. The case is not one of a certificate of a notary before whom the real mortgagor actually appeared and an effort is made to contradict that to which the officer certifies; if it were, some of the many cases cited might apply.

The excluded offers of the plaintiff which are the subjects of the eleventh, twelfth and thirteenth assignments of error were properly overruled, for the reason given by the court in sustaining the objections to them. As to the third and last position of the appellant, that she ought to recover because the appellee is answerable for the torts of his wife, we need only say we know of no rule of law that ever permitted a husband’s property to be taken from him on a deed forged by his wife, or the forgery of which was procured by her. Since the passage of the Act of June 8, 1893, P. L. 344, a married woman may be sued civilly in all respects and in any. form of action with the same effect and results and consequences as an unmarried person, except that she may not be arrested or imprisoned for her torts. Under that act she, and not her husband, is-liable in damages for her torts.

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


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Bond v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen”— Evidence.

    1. In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing the corroborated testimony of the plaintiff was that the evening of the accident was dark and foggy, that there was no headlight on the engine and that no signal of its approach was given by bell or whistle. He further testified that, though looking in each direction, he did not hear the engine, adding that, if it had been daylight, he would have seen it and the accident would not have happened. On his cross-examination after again stating that, if it had been daylight, he could have seen, he said, when pressed to state how far he could see, or did see, “ Probably a couple of hundred feet ” and immediately followed this with the answer that he “ Couldn’t say exactly.” Held, that it was for the jury to determine whether or not the plaintiff intended to say he could have seen the approaching train in the dark and foggy evening for a distance that would enable him to avoid it.

      Negligence — Railroads—Charge—Submission of question without proof — Speed of train.

    2. In a railroad accident ease it is reversible error so to answer a point as to permit the jury to find that the defendant had been negligent in running its train at a high rate of speed, where there is no evidence on the part of the plaintiff as to the rate of speed at which the train was running, while the uncontradicted testimony of the engineer was that he was running at about seven miles an hour.
    Argued Feb. 9, 1909.
    Appeal, No. 390, Jan. T., 1908, by defendant, from judgment of C. P. Chester Co., Aug. T., 1906, No. 27, on verdict for plaintiff in case of Winfield S. Bond v. Pennsylvania Railroad Company.
    Before Fell, Brown,Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hemphill, P. J.
    The facts appear by the opinion of the Supreme Court.
    Defendant presented the following point:
    1. Under all the evidence in the case, the verdict must be for the defendant. Answer: Refused. [3]
    Plaintiff presented this point:
    1. If the jury believe that defendant was guilty of negligence, in running the freight train at the public crossing on Washington avenue, Downingtown, on the night of January 19, 1906, by not giving the proper signals, and at a high rate of speed, and that the accident was the result of such negligence; and that there was no contributory negligence on the part of the plaintiff, the verdict should be for the plaintiff. Answer: That is affirmed. [4]
    Verdict and judgment for plaintiff for $5,645. Defendant appealed.

      Errors assigned were (3, 4) above instructions, quoting them.

      William I. Schaffer, with him John J. Pinkerton, for appellant.- —
    The legal inquiry in this case is: Were the conditions for a view of the train by the plaintiff such as to enable him to see? Uncontradictedly they were if he looked, because every other witness in the case says they were and the plaintiff does not say they were not. On the contrary, he admits that he had a view for 200 feet. The time of day or the condition of the atmosphere is not the question. The inquiry is as to the opportunity to see and hear. That there was such opportunity the plaintiff makes manifest in his own case.
    April 19, 1909:
    It matters not how much a plaintiff may assert that he looked and did not see, and listened and did not hear, if manifestly from his own case, it appears that if he did look, he saw, and if he listened, he heard: McCracken v. Consolidated Trac. Co., 201 Pa. 379; Hess v. Williamsport & North Branch R. R. Co., 181 Pa. 429; Blotz v. Lehigh Valley R. R. Co., 212 Pa. 154; Potter v. Pennsylvania R. R. Co., 221 Pa. 550.
    If the traveler cannot see the track whether from fog or other cause, he should get out and, if necessary, lead his horse and wagon: Penna. R. R. Co. v. Beale, 73 Pa. 509.
    It is error for the judge to submit a question to the jury of which there is no proof: Whitehill v. Wilson, 3 P. & W. 405; Egbert v. Payne, 99 Pa. 239; P. W. & B. R. R. Co. v. Alvord, 128 Pa. 42; Reese v. Hershey, 163 Pa. 253; Harrison v. Klee, 168 Pa. 510.

      Arthur T. Parke, with him John J. Gheen, for appellee.—
    There was sufficient evidence to warrant the finding of negligence upon the defendant’s part: Pittsburg, Fort Wayne & Chicago Ry. Co. v. Dunn, 56 Pa. 280; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Howett v. Phila., Wilmington & Balto. R. R. Co., 166 Pa. 607; Faust v. Phila. & Reading Ry. Co., 191 Pa. 420.
    Inasmuch as the plaintiff testified positively that he stopped, looked and listened at a point where he could have seen defendant’s approaching train if the headlight had been burning, whether he did stop, look and listen or not was a question for the jury: Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Todd v. Phila. & Reading Ry. Co., 201 Pa. 558.
   Opinion by

Mr. Justice Brown,

When this case was here before (218 Pa. 34) we held, in reversing the judgment for the defendant n. o. v., that it could not have been taken from the jury. On the second trial the verdict was again for the plaintiff on what the learned and careful trial judge, in his opinion refusing judgment for the defendant, said was practically the same testimony as that given by the plaintiff on the first trial. If this is so, the appeal of the defendant is to be regarded as having been taken for the purpose of rearguing the case before us. The only difference which its counsel have attempted to point out in the case as presented on the second trial is that it now appears that the plaintiff could see a distance of 200 feet in the direction from which the train was coming and his own witnesses saw and heard it approaching. The corroborated testimony of the plaintiff is that it was dark and foggy, that there was no headlight on the engine and that no signal of its'approach was given by bell or whistle. He further testified that, though looking in each direction, he did not hear the engine, adding that, if it had been daylight, he would have séen it and the accident would not have happened. On his cross-examination, after again stating that, if it had been daylight, he could have seen, he said, when pressed to state how far he could see, or did see, “probably a couple of hundred feet;” and immediately followed this with the answer that he “ couldn’t say exactly.” Taking his testimony as a whole, the jury might fairly have understood him as not intending to say he could have seen the approaching train in the dark and foggy evening for a distance that would have enabled him to avoid it. His own witnesses do not testify that they saw it at any point east of the crossing on Washington avenue, and, though they may have heard it coming, the jury were not bound to find that he ought, therefore, to have heard it.

But for the answer to the first point submitted by the plaintiff, this judgment would have to be affirmed, because it has not been shown that the testimony of the plaintiff on the second trial was not practically the same as on the first. In the court’s answer to the point the jury were permitted to find that the defendant had been negligent in running its train at a high rate of speed. There was no evidence on the part of the plaintiff as to the rate of speed at which the train was moving, while the uncontradicted testimony of the engineer is that he was running at about seven miles an hour. The fourth assignment of error must be sustained.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Mestrezat,

text:
    Dorrance, Appellant, v. Bristol Borough.

      Water companies — Exclusive privilege — Boroughs—Contract.
    1. Where a water company lays its pipes in the streets of a borough without the permission of the borough, and without any contract with the borough at the time, and several years thereafter agrees to furnish water for fire purposes alone, but without new construction for merely a fixed period, and without any liability for failure or neglect to provide the supply, and thereafter the borough by a change of its charter acquires the right which it had not theretofore, to construct water works of its own, the borough cannot by injunction be restrained from the construction of such works.
    2. In such a case an ordinance passed prior to the contract, and providing that persons, firms or corporations making excavations in the streets “for the purpose of laying water, gas or other pipes shall puddle the dirt in refilling said excavations,” is immaterial on the question as to whether a borough has adopted a method of supplying itself with water.
    3. A water company which has paid dividends at the rate of ten per cent per annum for twenty years has no exclusive privileges to supply water in a borough.
    4. Gas and water companies are not required to obtain permission of a borough to lay pipes in the streets, for the manifest reason that their charter gives them the right to enter upon the streets and lay their mains without such permission. The only authority of a borough over such companies is the right to subject them to police regulation in regard to the streets so as to prevent their impairment for public travel. The borough cannot annul the charter of a gas or water company by prohibiting the company from entering upon and laying its pipes in the streets.
    5. A municipality may adopt one of two methods to supply itself with water. It may construct and operate its own works by municipal taxation, or it may contract with a private corporation to construct works and supply the municipality. When it has adopted either of these methods it has necessarily rejected the other, and its authority is exhausted.
    6. Where a water company lays its pipes in a street of a borough at a time when the borough has no charter right to construct its own plant, and it appears that the borough held put no inducements to the incorporators of the company to obtain a charter and supply the municipality with water, and did no act disclosing an intention on its part not to exercise its power to construct its own water plant, the borough after it acquires the right is not precluded from constructing such a plant, even if it had previously entered into a contract with the water company by which the latter supplied water for fire purposes only for a fixed period, and after the termination of such period the company had voluntarily continued the supply of water for fire purposes.

      Boroughs — Construction of water plant — Increase of indebtedness— Acts of April 3, 1851, P. L. 320, May 3, 1901, P. L. 140, June 4, 1901, P. L. 362, March 14,1905, P. L. 38, February 15, 1851, P. L. (1852), 674, June 9, 1891, P. L. 252 — •Statutes.
    7. Where a borough incorporated under a special law with no power to create an indebtedness in excess of $10,000, becomes subject to the general borough law of April 3, 1851, P. L. 320, in proceedings instituted under the Act of June 4, 1901, P. L. 362, it will becpme subject to the Act of May 3, 1901, P. L. 140, giving boroughs the right to erect water works for the use of the public.
    8. The Act of June 9,1891, P. L. 252, relating to the increase of debt of municipalities, applies to all boroughs subject to the general borough act of 1851, and this includes older boroughs which have become subject to the act of 1851 in proceedings under the act of June 4,1901.
    9. A general statute will not repeal a local or special law without negative words, but a general statute will repeal by implication an earlier general statute repugnant to or inconsistent with its provisions.
    Argued Feb. 10, 1909.
    Appeal, No. 258, Jan. T., 1908, by plaintiffs, from decree of C. P. Bucks Co., Oct. T., 1906, No. 3, dismissing bill in equity in case of G. M. Dorrance et al. v. The Burgess and Council of Bristol Borough et al.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court entered a decree dismissing the bill.

      Error assigned amongst others was decree dismissing the bill.

      Harmon Yerkes, of Yerkes, Ross & Ross, and D. T. Watson, for appellants. —
    The borough of Bristol cannot now repudiate the arrangement with the water company.
    It has availed itself of the fruits all these years, and it is not even questioned that the water company, in good faith, has performed it and incurred expenses: White v. City of Mead-ville, 177 Pa. 643; Wilson v. Rochester Borough, 180 Pa. 509; Boyertown Water Co. v. Boyertown Boro., 200 Pa. 394.
    The borough can lose its rights by an election to supply water by a contract, express or implied, or by encouragement, inducements held out to a company to build, or by acquiescence and permission in its providing water for the borough: White v. City of Meadville, 177 Pa. 643; Gas & Water Co. v. Downingtown Boro., 172 Pa. 341; Philipsburg Water Co. v. Philipsburg Boro., 203 Pa. 562.
    The charter of Bristol has not been changed or supplemented by later legislation to affect the limit of its indebtedness to $10,000.
    If an act regulating affairs of boroughs, etc., either produces or may produce local results, it is void: Scranton School District’s Appeal, 113 Pa. 176; Morrison v. Bachert, 112 Pa. 322; Scranton v. Silkman, 113 Pa. 191; McCarthy v. Commonwealth, 110 Pa. 243.
    The express repeal of an exception to a statute extends, by so much, the operation of the act: Savings Bank v. Collector, 70 U. S. 495; Smith v. Hoyt, 14 Wis. 252; Blankenburg v. Black, 200 Pa. 629; Warren Borough v. Geer, 117 Pa. 207; Com. ex rel. v. Navle, 2 Walker, 311; Brown v. Phila. County Commissioners, 21 Pa. 37; Jefferson County v. Reitz, 56 Pa. 44; Rhein Bldg. Assn. v. Lea, 100 Pa. 210; Seifried v. Com., 101 Pa. 200, approving Brown v. Phila. County Commissioners, 21 Pa. 37; Kilgore v. Com., 94 Pa. 495; Harrisburg v. Sheck, 104 Pa. 53; Lackawanna County v. Stevens, 105 Pa. 465; Malloy v. Com., 115 Pa. 25.
    The taxable and debt limit of Bristol fixed in the act of 1851 was never increased: Malloy v. Com., 115 Pa. 25.
    The general act approved May 3, 1901, did not authorize the borough of Bristol to erect new waterworks: Storm v. United States, 94 U. S. 76; Grove v. Hodges, 55 Pa. 504.

      John G. Johnson, with him Gilkeson & James, for appellees. —
    The water company constructed its works independently of any action by the borough and not in pursuance of any contract therewith.

      April 19, 1909:
    There was no contract of any kind between the borough and the water company until eleven years after the completion by the latter of its works. The contract then entered into was not for an entire supply of water; was for a limited time; and was expressly made free of any liability by the water company for neglect or failure.
    No expenditures were made by the water company under the obligation of any contract with the borough.
    After the expiration, in ^1892, of the first limited contract entered into in 1886, no new contract was made; but the water company continued to furnish, without any obligation, or for any specific length of time, gratuitously, water for specified purposes.
    The borough, antecedently to 1905, possessed no power to construct water works.
    Under the circumstances stated in the first five propositions there exists nothing which prevents the borough from constructing its own waterworks: White v. City of Meadville, 177 Pa. 643; Wilson v. Rochester Borough, 180 Pa. 509; Centre Hall Water Co. v. Centre Hall Boro., 186 Pa. 74; Boyertown Water Co. v. Boyertown, 200 Pa. 394; Nelson v. Warren Boro., 200 Pa. 504; Potter County Water Co. v. Austin Boro., 206 Pa. 297; Troy Water Co. v. Troy Boro., 200 Pa. 453; Philipsburg Water Co. v. Philipsburg Boro., 203 Pa. 562; Hastings Water Co. v. Hastings Boro., 216 Pa. 178.
    The borough, since 1905, was in possession of all the powers vested generally in boroughs, in the matter of extent of indebtedness and of the right to construct waterworks: Blankenburg v. Black, 200 Pa. 629.
   Opinion by

Mr. Justice Mestrezat,

This is a taxpayer’s bill filed by the plaintiffs to restrain the defendants from erecting a water plant and from increasing the'indebtedness of the borough for that purpose. The court below refused the relief prayed for and dismissed the bill. The plaintiffs have appealed. The pleadings raise but two questions which are material and controlling in the disposition of the case: (1) Has the borough by its action or relations with the Bristol Water Company exhausted its power and thereby precluded itself from erecting waterworks? and (2) has the borough the power to construct a water plant and the authority to increase its indebtedness for that purpose to the extent proposed by the defendants? The learned judge of the court below filed an exhaustive opinion in which he found and stated the facts and his conclusions of law. In reviewing the case and in determining the questions presented for our consideration, we do not deem it essential to consider the correctness of the learned judge's findings of many of the facts which are controverted by the appellants. We will state briefly such of the court’s findings of fact as we deem established by the evidence and material to a proper determination of the questions at issue in this court.

The borough of Bristol was originally established by letters patent in 1720, and was re-established by an Act of the legislature September 16, 1785, 2 Sm. L. 343. The charter was amended by an Act approved February 15,1851, P. L. (1852) 674, by sec. 10 of which it is enacted: “The burgess and council shall have the power to borrow for the use of said borough, any sum or sums of money which they shall deem necessary,..... provided that the whole amount of indebtedness of said borough shall not at any time exceed the sum of ten thousand dollars.” By Act of March 14, 1905, P. L. 38, this section of the act of February 15,1851, was amended by striking out the 'proviso limiting the amount of indebtedness of the borough.

The burgess and town council of Bristol made application to the quarter sessions of Bucks county to have the borough made subject to the general borough Act of April 3, 1851, P. L. 320, and on September 18,1905, a decree was entered by the court that the borough “shall hereafter be subject to the restrictions and shall possess the powers and privileges conferred by the aforesaid act, and it is further decreed that the provisions of the former charter of the said borough shall be and they are hereby annulled, so far as they are in conflict with the provisions of said act.”

The Bristol Water Company was incorporated August 21, 1874, under .the general corporation act of that year for the purpose of supplying water within the borough of Bristol. It completed the construction of its plant between February and April, 1875, furnishing water to the Pennsylvania Railroad Company in February of that year and for domestic purposes in the following April. The court found: “ It (the water company) claimed the right to construct its works and lay its pipes in the borough without the consent of the authorities thereof, and constructed and laid the same without such consent. The borough had nothing whatever to do in the matter of consenting or dissenting. The water company acted entirely independently of it.” The only ordinance bearing upon the laying of water pipes in the streets of the borough was passed April 12, 1875, and ordained that “from and after the passage of this ordinance, all persons, firms or corporations making any excavations in the public streets of the borough of Bristol for the purpose of laying water, gas or other pipes shall puddle the dirt in refilling said excavations.”

No contract for the supply of water to the borough or upon its account was entered into with the water company until 1886, when it was agreed that the company for the consideration of $600 per annum should, for the period of six years from January 1, 1887, “furnish water to the said borough for fire protection, to hydrants to be erected at points on the present mains of said water company where fire plug branches are now located, and also at the dead ends of present mains, and upon a main that may hereafter be placed upon Buckley street.” The borough agreed to expend such sums as should be necessary “in furnishing and laying the necessary pipe and stop valves from the branches in the mains and from the aforesaid dead ends of mains, to the fire hydrants, which connecting pipes and valves were to be the exclusive property of the said water company.” It was further agreed that a person designated by the borough could use water for the purpose of cleaning the then public culverts under certain stipulations restricting the use of the water, and that the company should be relieved from liability for failure to supply water for 'fire purposes or otherwise. At the date of the contract, there were about forty or forty-five fire plugs in the borough which have been increased to eighty-five plugs. The company of its own volition subsequently laid water mains of a larger size, but it was not in the discharge of any duty imposed by the contract with the borough. Nor did the water company agree to lay any additional mains or pipes or to make any additional distribution. In December, 1892, when the contract was about to expire, negotiations took place between the parties for its renewal for fire protection which resulted in the water company addressing a letter to the borough in which it proposed to furnish water to the borough for fire protection on the terms of the original contract without compensation therefor. The proposition was accepted by the borough, and it endeavored to have the agreement indorsed on the contract, but it did not succeed. Since January 1, 1893, the water company, without any other agreement or understanding, has furnished water to some eighty-five water plugs for fire protection only. Occasionally the use of water has been permitted for flushing the streets. The court finds: “Since 1892 there has been an understanding, revocable at the will of either party, with reference to a supply of water for a limited purpose as above specified.”

By an ordinance approved May 21, 1906, the borough of Bristol ordained that its indebtedness should be increased in the sum of $100,000 for the purpose of the erection and construction of waterworks and a filtration plant, and that the increase of indebtedness being more than two per centum and less than seven per centum of the assessed valuation of the borough the question of the increase should be submitted to the voters of the borough at an election to be held on July 10, 1906. The election was held, and by a vote of four to one the assent of the electors was given to the increase of indebtedness. The proceedings taken by the borough to increase the indebtedness were regular and in conformity with statutory authority.

Three days prior to the election, this bill' was filed. The court refused the injunction restraining the holding of the election, but granted a preliminary injunction restraining the defendants from increasing the borough’s indebtedness, and from erecting a water and filter plant or entering into any contracts for that purpose, until the further order of court. Subsequently, after a hearing, the court entered a decree that the bill be dismissed. From that decree we have this appeal.

1. Has the borough of Bristol by its action or relations with the Bristol Water Company exhausted its power and thereby precluded itself from erecting waterworks? It was found as a fact by the trial court that the Bristol Water Company for at least twenty years prior to 1905 had declared and paid dividends at the rate of ten per cent per annum. The exclusive privilege of the company to furnish water in that territory granted by its charter was, therefore, lost, and it was within the power of the borough to provide a supply of water by contract with that or any other company: Centre Hall Water Company v. Borough of Centre Hall, 186 Pa. 74; Philipsburg Water Company v. Philipsburg Borough, 203 Pa. 562. And, as against the borough, the charter of the Bristol Water Company did not confer upon it an exclusive privilege to furnish water within the municipal limits: Lehigh Water Company’s Appeal, 102 Pa. 515; Freeport Water Works Co. v. Prager, 129 Pa. 605; Commonwealth v. Consumers’ Gas Co., 214 Pa. 72. It is claimed by the plaintiffs, however, that the borough is precluded from erecting its own works by its conduct and its-relations with the Bristol Water Company. But with this contention we cannot agree. We are clear that the learned court below was right in holding the contrary, and that there was no action on the part of the borough that would prevent it constructing a water plant either on the ground of estoppel or by having exhausted its authority to supply water for its own use. The water company was chartered under the act of 1874 and it had the authority to enter upon the streets of Bristol borough and lay its mains and construct its plant without permission of the borough. In fact, this is the very thing it did. It made no contract with the borough and sought no permission of it to construct its plant.' The company was not organized or created under or in pursuance of any arrangement or contract with the borough for the purpose of supplying the municipality with water. The fact that some of the citizens urged the incorporation of the company for the purpose and took stock in the company does not bind the borough in any way whatever. There was no official action by the borough authorities in regard to the matter which would bind it. The ordinance of April 12, 1875, cannot be construed as consent or permission by the borough for the water company to enter upon the streets for the purpose of laying its pipes, nor does it appear that the company entered upon the streets in pursuance of such authority. The ordinance was simply a street regulation of general applicability and applied to “ all persons, firms or corporations making any excavations in the public streets,” and required them to puddle the dirt in refilling the excavations, with a proviso that in “ laying pipes other than for gas and water,” they should first obtain permission of the borough. Gas and water companies are not required to obtain permission of a borough to lay pipes in its streets, for the manifest reason that their charters give them the right to enter upon the streets and lay their mains without such permission. The only authority of a borough over such companies is the right to subject them to police regulation in regard to the streets so as to prevent their impairment for public travel: Act of April 29, 1874, cl. 2 of sec. 34, P. L. 73, as amended by sec. 2 of the Act of May 16, 1889, P. L. 226. The borough cannot annul the charter of a gas or water company by prohibiting the company from entering upon and laying its pipes in the streets.

As held in Carlisle Gas & Water Company v. Carlisle Water Company, 188 Pa. 51, a municipality may adopt one of two methods to supply itself with water. It may construct and operate its own works by municipal taxation, or it may contract with a private corporation to construct works and supply the municipality. When it has adopted either, of these methods it has necessarily rejected the other and its authority, is exhausted. In the case in hand, the municipality was not vested with power authorizing it to construct a water plant prior to 1905. It was chartered by a special act of the legislature which conferred no power to supply water to the public. It is clear, we think, that until it became subject to the general borough Act of April 3, 1851, P. L. 320, Bristol borough was without authority to supply itself with water by constructing its own plant.

There was no inducement held out by the borough to the incorporators of the company to obtain a charter and supply the municipality with water, nor was there any other act by the borough which disclosed an intention on its part not to exercise its power to supply water to the municipality and thereby deprive itself of the right to construct its own water plant. The learned court below was clearly right in finding that “no expenditure was made by the water company in the way of original construction, or subsequent extension, in consequence of any contract obligation which obliged it to construct or extend.” It is earnestly contended by the appellants that the contract of December 4,1886, was an election by the borough to supply the municipality with water, and that such action precluded it from subsequently constructing its own plant. This contention overlooks the terms and conditions of the contract. The contract certainly did not induce the incorporation of the company, as it was not executed for more than eleven years after the erection of waterworks. The duration of the contract was six years. It did not provide for a supply of water to the borough generally, but for a specified purpose. There was no provision for water for cleaning or. flushing a sewer system, and there was a stipulation against liability on’the part of the company for failure to supply water for fire purposes. The consideration was a certain sum payable annually. The contract did not provide for laying any additional mains or pipes, or that the company should lay pipes of any particular dimensions. It is obvious, therefore, that both of the contracting parties, entering into the agreement, considered the contract as a temporary arrangement for supplying water.for a specified purpose; and that the contract was to have the same force and effect as if entered into between the company and any other consumer in the borough.

We do not overlook the fact, suggested by the appellants, that the company by undertaking to furnish the water was required to furnish the means to accomplish the purpose. The same would be true if the company had agreed to furnish water to an individual or a corporation. The fact that it had to supply the means with which to carry out the purpose would not be an inducement to construct the plant, in view of the fact that the plant had been constructed eleven years prior to the contract and that there was no duty imposed by the contract to extend the plant. In this connection it should be noted that if any additional mains or pipes were laid, it was the voluntary act of the company and not by virtue of a duty imposed by its contract with the borough. The fact that the company was incorporated for the purpose of supplying water in the borough of Bristol and that it would have to provide the means for so doing was not, as argued by the appellants, a provision made by the state for furnishing water to the municipality so as to preclude the latter from erecting its own plant. The water company, complying with the statute, was entitled to a charter from the state, but without some act by the municipality depriving it of the right, the company could not prevent the borough from exercising its power to construct and operate its own water plant.

The contract of 1886 terminated on January, 1, 1893, and was not renewed. In December, 1892, there were negotiations by the parties for its renewal for fire protection, but they were not successful. The water company, however, addressed a letter to the borough saying that it would continue to furnish water for fire protection on the terms and conditions of the contract without compensation therefor. The borough accepted the offer and attempted to have an agreement indorsed on the contract, but did not succeed. By this arrangement the water company proposed to furnish a limited supply of water for some of the purposes required by the borough. The duration of this supply would, of course, depend upon the pleasure of the company and the borough. The obvious objection by the borough to this proposal was that it did not agree to furnish sufficient water for all borough purposes, was revocable at any time by the company, and protected the water company against liability for failure to supply water. It needs no argument to show that the municipality would not comply with its corporate duty to supply water by an arrangement of this character. It is wholly insufficient and does not meet the duty imposed by law upon the borough to furnish an adequate supply of water. The appellants contend that it is immaterial whether this arrangement was determinate or indeterminate. With this contention we do not agree. If it be determinate, as it unquestionably is, the company may at any time decline to continue to furnish water to the borough for the purposes named in its offer. The court could not compel the company to specifically comply with the offer, and continue on the same terms to furnish water for such purposes. The consequences to the borough of a sudden discontinuance of water, entirely possible, discloses the necessity for the borough having a binding obligation which it can enforce. The water company cannot be permitted to deprive the borough of making sufficient provision for furnishing an adequate supply of water for all its wants by a simple gratuitous offer, determinable at any time, to furnish a partial supply for municipal purposes. An agreement or an arrangement of that kind is lacking in mutuality and if legally enforcible would impose a responsibility upon the borough without a corresponding responsibility on the water company.

2. Has the borough the power to construct a water plant, and the authority to increase its indebtedness for that purpose? Prior to 1901, Bristol borough did not possess the power to construct water works or to create an indebtedness in excess of $10,000. In September of 1905 by a decree of the court of quarter sessions of Bucks county, a proceeding instituted under the Act of June 4, 1901, P. L?. 362, 1 Purd. (13th ed.) 481, the borough was made subject to the general borough act of April 3, 1851. This decree made the borough subject to the restrictions imposed, and invested it with the powers and privileges conferred by the act of 1851. It annulled the provisions of the former charter so far as they were in conflict with the provisions of the act. The act of 1851 confers the power “to provide a supply of water for the use of the inhabitants, to make all needful regulations for the protection of pipes, .... reservoirs and other constructions or apparatus and prevent the waste of water so supplied” in a municipality subject to its provisions. By the Act of May 3, 1901, P. L. 140, 1 Purd. (13th ed.) 501, it is enacted: “Every borough of this commonwealth shall have power and authority to 'provide a supply of water for the use of the public within such borough, either by erecting and operating waterworks or by entering into a contract or contracts with one or more persons or corporations authorized to supply water within the limits of said borough, or partly by the erection and operation of waterworks and partly by entering into a contract or contracts, as aforesaid.” Assuming the correctness of the position, stated above, that Bristol borough had not by contract or its relations with the water company precluded itself from establishing a water plant, it is clear that the borough is empowered by statutory authority to construct a plant, if it is authorized to increase its indebtedness for that purpose. This question must be resolved by an examination of the legislation on the subject.

As we have seen, the borough was originally established by letters patent in 1720, and was re-established by the act of 1785. By the act amending the borough’s charter, approved February 15, 1851, it was provided in sec. 10 that the indebtedness of the borough shall not at any time exceed $10,000. By cl. 26 of sec. 2 of the general borough law of 1851 a borough is authorized to borrow money not exceeding $1.00 in every $100 of. the assessed value of the real and personal estate in the borough. It is contended by the appellants that the present debt limit of Bristol borough is either $10,000 or $1.00 in the $100, and, in either event, the borough cannot borrow $100,000, as proposed, for the erection of a water plant. In other words, the appellants ’ contention is that the proviso of the act amending the charter of Bristol borough which limits the indebtedness to $10,000 is not inconsistent with the borrowing limitation in the general borough act; and that those restrictions on the power to borrow or to create an indebtedness are still in force, notwithstanding the Act of June 9, 1891, P. L. 252, 3 Purd. (13th ed.) 2723, enacted to carry into effect art. IX, sec. 8 of the present constitution and which provides, inter alia, as follows: “The indebtedness of any county .... borough .... or other municipality or incorporated district in this commonwealth may be authorized to be increased to an amount exceeding two per centum, and not exceeding seven per centum, upon the last preceding assessed valuation of the taxable property therein, with the assent of the electors thereof, duly obtained at a public election to be held in the said district or municipality.”

We are not inclined to the view of the learned counsel for the appellants that the limitation either of $10,000 or of $1.00 in every $100 is still in force as to boroughs subject to the act of 1851. That is an act entitled, ‘' an act regulating boroughs,' ’ and provides in detail for the government of boroughs generally of the commonwealth, and repeals all laws inconsistent therewith. The decree of the quarter sessions of Bucks county annulled the charter of Bristol borough so far as it was in conflict with the general borough act, and subsequent to the decree, Bristol borough occupied the same position as a borough originally incorporated under the general borough law, except in so far as any provisions of its charter were not in conflict with the general borough act. The limitation of $10,000 in the Bristol special act, assuming, as contended, the repealing Act of March 14, 1905, P. L. 38, to be unconstitutional, is not the same as the limitation of $1.00 in each $100 provided in the general borough act. The debt limit in the act of 1851 is indefinite, and would depend, each year, upon the assessed value of the real and personal property of the borough. The limitation, therefore, might be greater or less than that in the Bristol special act, and never would be the same save by a coincidence which would rarely, if ever, occur. The probability is that the $10,000 limitation would be less than that provided in the general borough act. In being made subject to the general borough act, therefore, Bristol would not, as provided in the decree of the quarter sessions, possess the powers and privileges conferred by the act. We think the limitations in the two acts are not the same but are inconsistent and in conflict with each other, and hence the limitation on the borrowing capacity imposed by the Bristol special act and all other inconsistent provisions thereof are. repealed.

We are of opinion that the act of June 9, 1891, applies to all boroughs subject to the general borough act of 1851. In terms it applies to “any county, borough or other municipality or incorporated district of this commonwealth.” The purpose of the legislation was to enforce the constitutional mandate, to procure uniformity on the subject in the laws regulating the municipalities of the state, and to confer authority to increase the indebtedness of municipalities in the manner pointed out in the act. Uniformity in the laws governing and regulating the boroughs of the commonwealth was the purpose in enacting the statute of June 4, 1901, permitting boroughs with special charters to become subject to the general borough law; and it is equally manifest, we think, that such was the purpose of the act of 1891 as to the subject of which it treats.

If we hold that the* act of 1891 has no application to boroughs subject to the general borough law, its operation would indeed be limited, and we would be imposing a restriction, not contemplated by the legislature in enacting the statute. It is true that neither it nor the act of 1874 contains a repealing clause; nor is either of them entitled a supplement to the general borough act, but this is not sufficient to prevent the applicability of the provisions of the act of 1891 to municipalities within the express terms of the statute. A general statute will not repeal a local or special law without negative words, but a general statute will repeal by implication an earlier general statute repugnant to or inconsistent with its provisions. The decree of the quarter sessions made the borough of Bristol subject to the act of 1851 which is a general, and not a local, statute, and its provisions which are inconsistent with the act of 1891 are necessarily repealed by the latter act. The purpose of the legislature was to make the act of 1891 a part of the system regulating all boroughs within the commonwealth, and there was no intention of excluding its operation from any borough subject to the provisions of the general borough law. Uniformity on the subject, dealt with in the act, among all boroughs, was the purpose of its enactment. If Bristol borough possesses all the powers and authority and has all the rights of a borough incorporated under the general borough act of 1851, we are unable to see why it is not within the provisions of the act of 1891 and why it does not possess the authority conferred by that act to increase its indebtedness within the restrictions named in the act.

We think it clear, without discussion, that the electors of the borough legally authorized the creation of the indebtedness for the erection of the waterworks. The proper steps were taken, and the proceedings were entirely regular. The question of the authority of the borough to increase its indebtedness for the purpose of constructing a sewage system need not be discussed nor determined in this proceeding. We are only concerned here with the right of the borough to erect a water plant. Whether it should be constructed before the sewage plant is a question for the legislative authority of the municipality. So far as we can see there has been no abuse of discretion by the borough in the proceedings to construct the water plant and to provide for the indebtedness, and therefore the courts cannot interfere.

The decree-of the court below is affirmed.


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    Judge, Appellant, v. Pyle.

      Trusts and trustees — Declaration of trust — Individual liability of trustee — Affidavit of defense.

    Where a person purchases a coal mine at sheriff's sale and executes a declaration of trust by" which he declares that he holds the property to operate the same, and to pay three creditors of the defendant in the execution, out of the profits, and as to one of the creditors if the profits are not sufficient to pay him in four months, to pay him in full on a day stated,, and such creditor sues the trustee to hold him individually liable, no profits having been realized, an affidavit of defense by the trustee is sufficient to prevent judgment if it contains an unequivocal averment that at the time the trustee executed the paper, it was understood and agreed by and between the plaintiff and himself that he was not to become individually liable from his individual property, but only as trustee from the trust funds arising and coming into his hands.
    April 19, 1909:
    Argued Feb. 25, 1909.
    Appeal, No. 31, Jan. T., 1909, by plaintiff, from order of C. P. Lackawanna Co., March T., 1908, No. 669, discharging rule for judgment for want of a sufficient affidavit of defense in case of John J. Judge v. G. A. Pyle.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. Before Carpenter, J.
    The facts appear by the opinion of the Supreme Court.
    The court discharged the rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      P. L. Walsh, for appellant, cited: Cambridge & Co. v. O’Callaghan, 27 Pa. Superior Ct. 199; Savings Bank Co. v. Trust Co., 210 Pa. 320.

      John F. Scragg, with him J. E. Bremen, for appellee.
   Opinion by

Mr. Justice Brown,

On October 4, 1907, G. A. Pyle, the appellee, purchased at sheriff’s sale the personal property of W. L. Barton. On the following day he executed the paper under which the appellant claims judgment against him for $1,700 with interest from February 10, 1908. The affidavit of defense to the claim was deemed sufficient, and from the discharge of the rule for judgment we have this appeal.

The paper executed by Pyle recites that Barton was indebted to Judge, the appellant, in the sum of $1,700 and to other parties in amounts not named, and that the property of Barton, sold by the sheriff and purchased by Pyle, was held by him in trust for the-following purposes: “That the said mine and breaker are to be operated under my management and control, work to be begun at once; that from the net monthly profits, I shall pay and hold myself responsible to pay towards the liquidation of the present indebtedness the following amounts: To the wage claims held by John J. Judge, assignee, twenty-five per cent. (25) of said profits, until the whole amount now due said John J. Judge, assignee, is fully paid; and, .if the profits are not sufficient to pay the amount due said John J. Judge in four months from the date hereof, I further agree to pay in full the said amount of claim held by said John J. Judge on February 10, A. D. 1908; and twenty-five per cent. (25) of said net profits to be paid monthly towards the liquidation of the claim of Charles H. Forbach until said claim is fully paid; and twenty-five per cent. (25) of said net profits to be paid monthly towards liquidation of the claim of G. A. Pyle, until the same is fully paid; the balance of twenty-five per cent. (25) to be paid into a reserve fund for the purpose of liquidating all indebtedness now of record against said W. L. Barton until the same is fully paid; and I do further admit and declare that the residue and remainder remaining in my hands after all the foregoing indebtedness is fully paid, together with expenses of management shall be paid over to said W. L. Barton.”

The claim of the appellant is that, under the foregoing declaration, Pyle became personally indebted to him in the sum of $1,700 on February 10, 1908, as he had not received up to that time anything on account of his claim out of the profits of the business.

The paper executed by Pyle is, on its face, a declaration of trust, but the suit on it against him is not for the recovery of anything due by him as trustee. It is to enforce an alleged individual liability incurred by him under the clause which provides that if the net profits of the business conducted by him as trustee should be insufficient to pay the claim of Judge on February 10, 1908, he would pay that indebtedness. The unequivocal averment in the affidavit of defense is that, at the time- the defendant executed the paper, it was understood and agreed by and between the plaintiff and himself that he was not to become individually liable from his individual property, but only as trustee from the trust funds arising and coming into his hands from the Barton Coal Company. This is not inconsistent with the whole tenor of the paper, and the single clause upon which the appellant relies is not to be read apart from the context as constituting an absolute personal obligation of Pyle. If he can prove on the trial what he sets up in his affidavit of defense, the plaintiff ought not, in equity and good conscience, to recover. The court below correctly held that, on the whole record, his right to judgment is not clear, and, under Kerr v. Culver, 209 Pa. 14, the rule for it was properly discharged.

Appeal dismissed and record remitted for further proceedings.


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    Terppe’s Estate.

      Will — Power of appointment — Exercise of power — Direction to pay debt — Devise.
    Where a widow having a life estate under her husband's will with testamentary power over the corpus of the estate, and also having a separate estate of her own, directs in the first clause of her will that all her debts should be paid, and devises in the residuary clause to an adopted son of her husband certain real estate which was a part of the estate of her husband, but charges it with incumbrances existing on it at the time of her death and with certain legacies left by her will, such real estate is not charged with the testatrix's own debts.
    Argued Feb. 25, 1909.
    Appeal, No. 48, Jan. T., 1909, by R. L. Levy, from decree of O. C. Lackawanna Co., dismissing exceptions to confirmation of sale in Estate of Julia Terppe, deceased.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Exceptions to confirmation of sale. Before Sando, P. J.
    From the record it appeared that the real estate in question was a portion of the estate of Frederick L. Terppe, who died in 1905. The will of Terppe provided, inter alia, as follows:

      “Third. I give, devise and bequeath unto my beloved wife, Julia Terppe, all the rest, residue and remainder of my property, real, personal or mixed, wherever or however situated or located at the time of my death, she to have, hold, use and enjoy the same and all the income therefrom, less taxes and charges thereon, for and during the term and period of her natural life, and further as to the remainder and fee simple of said property, I give, devise and bequeath to said beloved wife, Julia, the sole right, and I so direct, of disposing of said property by her last will and testament, to whomsoever and howsoever and upon such terms and conditions as to her shall seem best at time of making her will.
    “Fourth. Should my said wife, Julia, neglect or refuse to dispose of the remainder of said property by her last will and testament, in that event I give, devise and bequeath the same absolutely in fee simple to my beloved adopted son, William Frederick Terppe.”
    Julia Terppe died on October 25, 1907. She made a will dated February 3, 1906, the material portions of which are as follows:
    “2. I direct that all legal debts owing by my estate be paid by executors hereinafter named. . . .
    “10. I give, devise and bequeath to Miss Lizzie Terppe, of Philadelphia, Pa., .... and in addition thereto I give, devise and bequeath to her the sum of $3,000, to be paid from my estate, whether real, personal or mixed ....
    “11. To my beloved son, Frederick William Terppe, the adopted son of my late husband, Frederick L. Terppe, I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed, located and situated wheresoever or howsoever the same may be at the time of my decease, and subject to the above devises and legacies, he to have, hold, use and enjoy the same absolutely for himself, his heirs and assigns, in fee simple forever. But suggesting in this connection in the way of advisement to him, that it is my wish in accepting the said real estate he shall continue to conduct the drug business as now conducted on the property left me by my late husband, Frederick L. Terppe, for and during at least the period of ten years from the date of my decease, and that during this period of time he shall pay whatever incumbrances may be left by me against the said estate, either by reason of liens against the same owing by me at the time of my death or by reason of the legacies and devises herein granted to other persons to be paid therefrom, and he shall not dispose of the said estate in any manner but conduct it in the way of business until such debts are all paid off and the property clear.’’
    The drug store property which belonged to Frederick L. Terppe was sold under an order of court for the payment of the debts of Mrs. Terppe.
    The purchaser objected to the confirmation of the sale on the ground that the real estate could not be sold to pay Mrs. Terppe’s debts, and that therefore her executor could not make title.
    The court dismissed the exceptions and confirmed the sale.

      Error assigned was decree confirming sale.

      B. L. Levy, with him Sidney L. Krauss, for appellant.—
    The intention of the testator is always to be determined by an examination of the entire will. Even the introductory clause of a will, which does not operate to dispose of any property, may be considered in order to ascertain the testator’s intention where a clause is not clear: Schriver v. Meyer, 19 Pa. 87; Fox’s App., 99 Pa. 382; Tyson’s Estate, 191 Pa. 218; Woelpper’s App., 126 Pa. 562; Yarnall’s App., 70 Pa. 335.
    Express words are not overcome by a doubtful implication inconsistent with an expressed intent: Cheetham v. Muhlenberg, 133 Pa. 309.
    Where a testator in one clause of his will gives certain directions as to the disposition of a portion of his estate and by a subsequent clause makes another disposition of a part of such fund, the last clause will govern the distribution: White’s Estate, 132 Pa. 17.
    In the case at bar the testatrix, in disposing of this property, was merely exercising an appointive power, and it would seem natural and reasonable that she intended to devise the property to her son, rather than to apply it to her own uses for the payment of her own debts. Had she been desirous of paying her own^debts out of this property she might have so instructed her executors, but in the absence of a positive instruction to that effect it would seem to be the duty of the court to carry into effect her expressed intention as gathered from her will, rather than to divert the property to some other purpose under a strained construction of a technical term, which construction does not harmonize with her intentions and wishes as clearly expressed.
    April 19, 1909:

      John F. Scragg, with him Edward Merrifield and O’Brien, Kelly & Fitzgerald, for appellee. —
    In case of a general power of appointment by will, a donee may appoint, for the benefit of his estate, so as to subject the property to liability for the payment of debts: Stokes’s Est., 3 Pa. C. C. Rep.193; Horner’s Est., 4 Pa. C. C. Rep. 189; Ingersoll’s Est., 15 Pa. C.C. Rep. 19; Spencer’s Account, 3 Del. County Rep. 341; Forsythe v. Forsythe, 108 Pa. 129.
    Under the will of Frederick Terppe, his widow, Julia Terppe, took a life estate, with the testamentary power to dispose of it, which by implication enlarged her estate to a fee: Pennock’s App., 20 Pa. 268; Dillon v. Faloon, 158 Pa. 468; Boyle v. Boyle et. al., 152 Pa. 108; May v. Joynes, 20 Grat. 692; McLean v. MacDonald, 2 Barb. 534; McDonald v. Walgrove, 1 Sand. Ch. 274; Benkert v. Jacoby, 36 Iowa, 273.
   Opinion by

Mr. Justice Brown,

A second reading of the will of Frederick L. Terppe is not necessary to determine what interest in his estate passed under it to his wife, for it most clearly appears that he gave her but a life estate in his real and personal property, coupled with a power of appointment to dispose of it by will, and, upon her failure to exercise that power, he devised it absolutely to his adopted son, William Frederick Terppe. He gave to his wife the use and enjoyment of all of his property and “all the income therefrom, less taxes and charges thereon, for and during the term and period of her natural life,” and “as to the remainder and fee simple of said property,” the right of disposing of it by will “to whomsoever and howsoever and upon such terms and conditions as to her shall seem best at time of making her said will.” With the intention of Frederick L. Terppe thus clearly expressed, we turn to the will of his widow to ascertain from it whether she intended to blend with her own separate estate, for the payment of her debts, that portion of the appointed property which her executor sold under an order of court to the appellant. Her intention in exercising her power of appointment is to be gathered from her will, and as it there appears it must prevail.

By the second clause of the will of Julia Terppe she directs, “that all legal debts owing by my estate be paid by my executors hereinafter named as soon after my decease as conveniently can be done without detriment to my estate.” Then follow eight clauses containing bequests of jewelry, books and other personal property and a legacy of $3,000. After making these bequests the testatrix gives all the rest of her estate, real and personal, to the adopted son. By the residuary clause she clearly intended to devise to him the drug store property which belonged to her husband’s estate and which her executor sold to the appellant for the payment of her debts, for of this particular piece of property she says, “but suggesting in this connection, in the way of advisement to him, that it is my wish in accepting said real estate he shall continue to conduct the drug business as now conducted on the property left me by my late husband, Frederick L. Terppe, for and during at least the period of ten years from the date of my decease, and that during this period of time he shall pay whatever incumbrances may be left by me against the said estate, either by reason of liens against the same owing by me at the time of my death or by reason of the legacies and devises herein granted to other persons to be paid therefrom;” and then follows this peremptory direction: “He shall not dispose of the said estate in any manner but conduct it in the way of business until such debts are paid off and the property clear.” The devise of the drug store property to the adopted son is under the power of appointment in the will of the husband of the testatrix. She had but a life estate in that property, and if she had not exercised the power of disposing of it by will, it would have gone absolutely to the adopted son. Her power to dispose of it by will was to be exercised upon such terms and conditions “as to her shall seem best at the time of making her said will.” In exercising the power and devising the property she did not charge it with the payment of her debts, and it is, therefore, not liable for their payment. It was devised subject to the legacies in the eight preceding clauses of the will, and the devisee was requested that during the period of ten years from her decease he should pay whatever incumbrances were against the estate left by her husband and the legacy given by the testatrix. A further peremptory direction was that he should not dispose of it in any manner until the property was cleared — not from her general debts, but from what has just been stated. Our construction of the eleventh clause of the will of the testatrix, guided by her intention as we there read it, is that she gave the residue of her own estate to Frederick William Terppe, and, exercising her power of appointment, devised the real estate of her husband to the same devisee, subject only to the payment of certain legacies and of incumbrances which she had not placed upon it. The court, therefore, was without jurisdiction to direct this property to be sold for the payment of her debts.

The assignments of error are sustained and the decree confirming the sale is reversed, the costs on this appeal to be paid by the estate.


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    Consolidated Ice Company v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Condemnation of leasehold — Improvements — Use of improvements — Removal of improvements.

    Where a railroad company after having acquired a fee in leased premises, files a bond to condemn the unexpired term of the leasehold, and notifies the lessee, who has the right to remove the improvements, to remove the same, and upon the lessee’s refusal to do so, the company removes and sells them after proper advertisement, the lessee is entitled to recover the value of the leasehold interest including the use of the improvements for the unexpired term and also the amount of money which the company received from the sale of the improvements, if such sale was made after a proper and bona Me effort by the company to secure the best prices for the property. In such a case the lessee is not entitled to the value of the machinery and fixtures in place, but only to the value of their use during the unexpired term.
    Argued March 2, 1909.
    Appeal, No. 2, Oct. T., 1909, by-defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1905, No. 95, on verdict for plaintiff in case of Consolidated Ice Company v. Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Appeal from award of jury of view. Before Evans, J.
    The defendant presented the following points:
    1. As to the value of the ice plant and machinery after removal, the measure of damages, where an opportunity of removal has been given to the owner of which he has not availed himself, is the price which the railroad company obtained for the property after removal. The evidence being undisputed that such notice was given and such resale had in this case, in good faith, by the defendant company, the price obtained in this manner is conclusive upon the plaintiff. Answer: Refused. [1]
    . 2. As to machinery and plant in place, the measure of damages is the difference between the value of such machinery and plant at the time of taking, and their value at the termination of the lease. In other words, the act of the defendant having shortened the term of the lease and anticipated the period of removal, the plaintiff is entitled to recover the amount which represents the use or deterioration of the machinery, etc., during that period, without allowance of the items of repair work as such, as repairs never having been made should not be compensated for. Answer: Refused. [2]
    The court charged in part as follows:
    [There is just one other question which has been urged strongly on both sides of this case, and for your purposes I will instruct you as to your disposition of it; the plaintiff company had the right of removal of the buildings and fixtures, all the improvements on the leasehold at its termination. It was not bound to remove them., What I mean by that is that there was no obligation upon the plaintiff to clear off the land when its lease expired. But if it considered the improvements on the land of any value, it had the right to remove them or the right to leave them there, just as it saw fit. There is a question here as to whether or not if these fixtures and improvements had a value and the plaintiff desired to avail itself of that value, it should have taken away the property. I charge you in this case that it was not the duty but it was the privilege of the plaintiff to take away its fixtures when this lease was condemned; and whatever value they had, they belonged to the plaintiff if it wanted to take them away. The plaintiff did not take them away; and the defendant, the Pennsylvania Railroad Company, disposed of them. The defendant, in disposing of them and receiving money for them, would have to account for them, because it sold something that did not belong to the defendant. It would have to account for them in good faith. It advertised them for sale; it assumed to sell property which, under the law as I have instructed you, did not belong to it; and therefore in good faith it must account for it. It must act all the way through in good faith. It was, not technically but in substance, the trustee, because of assuming to take, charge of property that did not belong to it and sell it, and it must act throughout in good faith and account for what it got. If it did that, that is the measure of its responsibility and it could not be held to more. There is some controversy here as to whether the defendant got what it should have reasonably gotten for these improvements that were on the leasehold. If I recollect aright, the testimony is undisputed that so far as the building was concerned it was not worth anything to remove; it would cost all the material was worth to remove it. But the evidence is conflicting as to what the machinery was worth. Its value varies from the testimony of Mr. McAfee, who, I think, put its value at about $65,000, to $5,000 given by other witnesses.] [3]
    [Now, gentlemen, this case is not without some difficulty on your part. It is a case which requires your careful consideration. It is not a case, like most cases where witnesses testify to a positive fact and you simply take the testimony and determine the fact; there is considerable more in this case. You must take the testimony and apply to it your own judgment in the matter; you must exercise a very large amount of intelligent judgment in disposing of this testimony. You must determine what was the value of this leasehold. And in order that I may not be misunderstood, I want again to tell you that this leasehold consisted of the land as you have heard it described, the buildings erected upon it and the fixtures, consisting of the machinery, coils, pumps, wells, and all other items which you have heard testified to here, going to make up this ice plant with the electric light plant or any other permanent fixtures on the place.] [4]
    [Again, we have permitted both parties to show the value in place and the removal value, that is, the value of these fixtures after they were taken away; not that the plaintiff can recover as such, the value of its machinery as a separate and distinct item; but it aids you in determining the main question in the case, to ascertain what the fixtures on this leasehold were and what was the purpose for which they might be used and what was their value in the market.] [5]
    Verdict and judgment for plaintiff for $117,687. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      Patterson, Sterrett & Acheson, for appellant. —
    The market value of the leasehold is the measure of damages, Penna. R. R. Co. v. Eby, 107 Pa. 166, where the leasehold is improved with heavy machinery and fixtures which cannot be removed without loss to another location, the value of these to the tenant, or those taking title from him, for the unexpired term, as also the cost and depreciation in the event of removal, are elements for consideration in estimating the amount of damage: McMillin Printing Co. v. Pittsburg, etc., R. R. Co., 216 Pa. 504.
    As to the removal or wreckage value of the fixtures and machinery as an element of damage. It will be observed that this does not refer to the cost of removal to another site and the consequent deterioration of the property, but deals with the value of the property, severed from and sold away from the land, as an item for consideration in reaching the general result. Where no opportunity has been given to the tenant to remove, it is a matter for testimony and opinion as to what the property was fairly worth in its severed condition. If, however, the railroad company has given notice to the tenant of its proposed entry and has offered to the tenant an opportunity to sever and remove his property and fixtures, upon his failure to take advantage of the opportunity thus given him, he is held to have abandoned whatever property he may leave on the premises, and the railroad company is at most liable to him for such amount as they may receive therefor upon a resale thereof: Lyons v. Railway Co., 209 Pa. 550.

      John S. Ferguson, for appellee.- —
    The right of the appellee was the right to remain in undisturbed possession of the lease to the end of the term. The loss resulting from the deprivation of this right is what the appellee was entitled to recover: McMillin Printing Co. v. Railroad Co., 216 Pa. 504; Wilmington & Reading R. R. Co. v. Stauffer, 60 Pa. 374.
    In a long line of decisions, the Supreme Court has recognized the fact that the market value of land is generally based upon its extent, the character of its improvements, its productive qualities, and upon sales of property in the vincinity: Reed v. Pittsburg, etc., R. R. Co., 210 Pa. 211; Cox v. Railroad Co., 215 Pa. 506; Pittsburg, etc., R. R. Co. v. Rose, 74 Pa. 362; Spring City Gas Light Co. v. R. R. Co., 167 Pa. 6; Wilmington & Reading R. R. Co. v. Stauffer, 60 Pa. 374; Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Western Penna. R. R. Co. v. Hill, 56 Pa. 460; Shano v. Bridge Co., 189 Pa. 245; McMillin Printing Co. v. Pittsburg, etc., R. R. Co., 216 Pa. 504; Getz v. R. R. Co., 105 Pa. 547.

      April 19, 1909:
   Opinion by

Mr. Justice Mestrezat,

By a lease dated April 1, 1891, Mary E. Schenley let to the executors of James Rees, deceased, an irregular shaped lot of ground fronting on Duquesne Way in the city of Pittsburg for the term of twenty years, for the annual rent of $1,250 for the first ten years, and $2,150 for the second ten years. The taxes and assessments on the premises were payable by the lessees, and they had the privilege of removing improvements erected by them at the termination of the lease. The interest of the lessees in the premises subsequently became vested in the Consolidated Ice Company, the plaintiff in this action.

At the date of the lease, there was upon the lot a two-story brick building occupying the whole premises, open in the interior and with a sort of gallery around and skylights above. The building had been used previously as a boiler works. The ice company erected a frame building on the premises, within and disconnected from the surrounding walls of the brick building, and in 1890 installed in the building all the machinery necessary to equip an ice manufacturing plant. It had a rated capacity of 155 tons of ice every twenty-four hours, and the product was disposéd of in the district adjacent to the plant. The Pennsylvania Railroad Company, the defendant, having acquired the fee in the lot, filed its bond which was approved by the court, and on March 11,1905, began condemnation proceedings to acquire the interest of the ice company in the premises. Before entry on the premises, the defendant, on May 24, 1905, notified the ice company to remove its improvements from the premises, but on June 5, 1905, the ice company advised the counsel for the defendant company that it would not remove any of the machinery and fixtures and that the defendant might dispose of the same as it saw fit. The defendant company thereupon, after advertising in the newspapers of the city of Pittsburg and seeking to find a bidder, sold the machinery and fixtures to a contractor for $2,800 for which the defendant is willing to account to the plaintiff.

The trial of the cause in the court below resulted in a verdict and judgment for $117,687 in favor of the plaintiff company, and the defendant has taken this appeal. The assignments of error raise substantially but one question, and that is as to the correctness of the court's rulings on the measure of damages. The learned judge of the court below instructed the jury that the leasehold which was the subject of the condemnation proceedings was the land, the buildings and the fixtures constituting the ice plant, and that the loss sustained by the plaintiff company was the market value of its leasehold interest.

The defendant company alleges that the court erred in its rulings as to the elements of damage represented by the value of the machinery and fixtures in place, and by the removal or wreckage value thereof. The defendant concedes that the measure of damages in case of an ordinary leasehold is the amount that anyone would pay for the unexpired term over and above the rent and other charges; and that where the leasehold is improved with heavy fixtures and machinery, as here, the use value of the fixtures and improvements to the tenant for the balance of the term is also an element to be considered in ascertaining the value of the leasehold. The defendant company denies the right of the plaintiff company to recover the value of the machinery and fixtures in place, and contends that their only element of value was the use the plaintiff company could make of them until the term expired and their removal took place. The defendant further contends that the plaintiff company had abandoned its machinery and fixtures after it had notice and opportunity to remove them, and that the most it was entitled to receive for them was what the defendant company had sold them for.

The plaintiff was entitled to recover in this proceeding' the value of its leasehold interest, including the use of the improvements it placed on the demised premises, for the unexpired six years of the term. Of course, this does not include estimated profits of future trade or business, or other supposed consequential .injury: Pennsylvania Railroad Co. v. Eby, 107 Pa. 166. The plaintiff company was paying as a rental for the premises 12,150 per annum and the taxes on the property, but this rental did not include compensation for the ice plant. As between the lessor and lessee, the leasehold was simply the lot and the structure thereon at the time the premises were let. The rental paid the landlord was compensation for the use of that property. Subsequently to the letting, the lessee constructed its ice plant with the express reservation in the lease of the right, but without the obligation, to remove it at the* expiration of the term. Therefore, in estimating the damages • sustained by the plaintiff company, the jury should consider not only what the leasehold proper was worth over and above the rental and other charges paid by the lessee, but the value of the leasehold as improved by the ice plant. In other words, the loss resulting to the plaintiff company is the difference between the value of the leasehold, as improved by the ice plant, for the unexpired term, and the rental and other charges payable by the lessee. This, as is apparent, would include the use of the fixtures and machinery by the tenant as well as the use of the demised premises for the residue of the term. The value of the leasehold proper for the unexpired term would be what the premises would be worth for any purpose for which they could reasonably be used over and above the rental and other charges payable by the lessee. To this must be added the use value of the machinery and fixtures until the expiration of the lease. These are not substantive elements of damage but are for the consideration of the jury in estimating the plaintiff company's loss by being deprived of the residue of the term. Clearly the plaintiff was not entitled to have considered in ascertaining the value of the leasehold or to recover as an element of damage the value of the machinery in place at the time of the institution of the condemnation proceedings. By the terms of the lease, the plaintiff company had the right, at the expiration of the term, to remove the machinery and fixtures placed on the premises by the lessee. They belonged to the plaintiff and were subject to its control and disposition, and if they had any value and the company so desired, it could have removed them when the lease was determined by the action of the defendant. The filing and approving of the bond did not prevent this. It did not deprive the plaintiff of the ownership of or the right to remove the property, and the defendant company disclaimed any intention to appropriate it and gave notice and an opportunity to the plaintiff to remove it from the Schenley premises. The appropriation by the defendant determined the lease, but it did not take the fixtures and machinery placed upon the demised premises by the lessee. Hence, it was error to allow the jury to consider the valuation placed by the witnesses on the fixtures and machinery in place as an element of value in estimating the loss sustained by the plaintiff by the appropriation of its lease.

The filing of the bond by the railroad company was not, as we have seen, an appropriation of the improvements by the company imposing liability for their market value. The title to the property was still in the plaintiff, and having received notice and an opportunity to remove it, the plaintiff company should have severed and disposed of it. However, as the defendant sold the fixtures and machinery and received the proceeds of the sale, it should account to the plaintiff for their value. It concedes its liability to the extent of the amount received. In determining the value, the jury should consider the fact that the plaintiff had the right to sever and remove the property, and that the cost or expense thereof should not be placed upon the defendant. The failure to exercise the right of removal and disposition of the property by the plaintiff required the defendant to dispose of it, and it is responsible to the plaintiff company only for the amount it received from the sale of the property after having made a proper and bona fide effort to dispose of it to the best advantage. The defendant alleges that it in good faith attempted to realize the best price for the property by advertising and making other efforts to secure purchasers. If the jury should find this to be true, then the amount which it received for the property would be the value of it for which the defendant would have to account to the plaintiff. If, on the other hand, the jury should be convinced by the evidence that the action of the defendant company was not such as to obtain for the property its fair market value, then the jury must find under the evidence what the value of the property was at the time the leased premises were appropriated by the company.

So far as the matters complained of in the assignments of error are in conflict with this opinion, the assignments are sustained, and the judgment is reversed with a venire facias de novo.