author: Mk. Justice Brown,

text:
    Lindsay’s Estate.

      Corporations—Contract—Good will—Agreement among stockholders to purchase stock of retiring member.

    Where there is an agreement among the stockholders of a corporation by ■which each one acquires a right by way of option to purchase the shares of anyone who dies or may withdraw from the business at a “fair price or book value thereof,” to be ascertained by arbitrators, the value of the good will of the business is to be taken into consideration in ascertaining the price at which the shares may be purchased.
    In such a case where the representative of a deceased member refuses to recognize the right of the remaining members to exercise the option provided for in the agreement, and there is a consequent delay, the remaining members after the right has been determined and the values of the shares fixed, are entitled to the dividends declared in the meantime, while the .estate of the deceased stockholder is entitled to the value of the shares ascertained as if at the time of his death together with interest at six per cent from that day.
    Submitted Oct. 25, 1904.
    Appeal, Nos. 89, 90, 91, 92 and 93, Oct. T., 1904, by Thomas McMurray et al. from decree of O. C. Allegheny Co., Jan. T., 1903, No. 220, granting specific performance in Estate of John S. Lindsay, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, J J.
    Affirmed.
    Petition for specific performance.
    Hawkins, P. J., found the facts to be as follows:
    The purpose of this proceeding is to enforce specific performance of a contract to close out the interest of this decedent in the James C. Lindsay Hardware Company, a corporation. The facts are these:
    In 1895 James C. Lindsay, long engaged in the hardware business, being desirous of taking in with him some of his old employees, organized a corporation with a capital stock of $150,000—$100 per share, in which these employees were given certain shares on credit, or partly on credit; and in connection with this organization the parties entered into an agreement by which it was provided that:
    “ Whereas, the said parties have agreed among themselves that, owing to the nature of the business transacted by the said James C. Lindsay Hardware Company, it is not desirable that the said stock so owned and held by the parties hereto should go upon the market for sale and transfer, for the reason that all the present stockholders are active workers in the business of the said James C. Lindsay Hardware Company, and are giving their personal attention and time to the development of the business; and
    “ Whereas, by reason of the uncertainty of life and of the possibility of some one (or more) of the present stockholders, parties to this agreement, may wish to sell his interest in the said James C. Lindsay Hardware Company and retire therefrom, and to guard against the introduction as stockholders in the said James C. Lindsay Hardware Company of strangers or outsiders in the said business, whether by reason of a wish to sell the said stock or by reason of the death of any one or more of the present stockholders, now this agreement is made:
    “ The parties hereto, owning at present all the stock of the said company, agree among and with each other that in case any one or more of them should desire to sell his stock in the said James C. Lindsay Hardware Company and retire from said business, or in the event of the death of any one (or more) of the present stockholders, it is agreed that those of the present stockholders who remain in the said business as stockholders therein shall have the option to purchase and acquire the whole of the stock interest of such party so dying or so desiring to sell his said interest at the book value thereof, which book value shall bo ascertained as follows :
    “ In case the parties can agree upon a price to be paid, then the parties having the right to purchase may take the interest at such price so agreed upon. But in case the representatives of the party so dying or the party desiring to retire by sale of his interest and the remaining parties of this contract cannot /agree upon a fair price or book value thereof, then each of the parties shall have the right to appoint one experienced business man as arbitrators, who, if they can agree, shall fix a price, whereupon the parties to this contract remaining in the business shall have the right to purchase said interest of the said party going out at such figure if they so desire; but they shall have the option to refuse or to take the interest at that price.
    u In the event that the two arbitrators so appointed cannot agree, then they shall choose a third party as umpire, and the decision of the majority thereof shall fix a price at which the parties remaining in the business shall have the right to take or to refuse the interest at the price so determined. In case the parties remaining in the business refuse to purchase after the price is fixed by arbitrators, then the interest may be sold by the owner or his representative to the highest and best bidder.
    “ Any stock of a party retiring from the business, or dying, acquired by the remaining stockholders under this agreement shall be divided.or assigned by the president of the board of directors at such time acting, subject to the approval of the board, to any one or more of the parties to this agreement, or to some other party not in this agreement, on the payment by such party of the amount of the purchase price thereof, which shall be divided among such parties as shall have supplied the purchase money to pay for the interest so retiring.”
    • James C. Lindsay was the first to die ; but, probably owing to the fact that the surviving owners were indebted to him for the shares which they held, no action was taken under the agreement to close out his stock, and the trustees under his will disposed of some of it at private sale, and still hold some.
    John S. Lindsay, another of the stockholders, and owning 225 shares, was the next to die, and thereupon the surviving stockholders notified the administrator of the estate and guardian of his only child of their desire to purchase the said stock at a price mutually to be agreed upon, which was refused ; whereupon petitioners notified said administrator and guardian of their purpose to proceed under the agreement above given; and said administrator and guardian having wholly refused to arbitrate the matter, averring that said agreement was not legally binding and of no force or effect, the petitioners filed their bill to enforce it in the common pleas court, and this bill was upon demurrer dismissed on the ground of revocation; but the Supreme Court, on appeal, said that while the decision could not be sustained on this ground, because of the absence of averment of revocation in the pleading, it could be sustained upon the ground that jurisdiction was not in the common pleas, but in the orphans’ court; whereupon the present proceeding was instituted, and the same questions of revocation and restraint of alienation, and also of value, were raised. After the issue had been framed, “ counsel for all parties believing that the questions involved herein may require the aid of experts,’’ respectfully requested and agreed that the court “ might call in the aid of Samuel McKnight, an expert in the value of merchandise, and of some accountant to be selected by the court, as assessors in this case; ” and thereupon the court appointed Albert F. Sawliill, accountant, and the said Samuel McKnight, merchandise expert, who entered upon their duties, and whose reported findings as to value substantially agree. There is no dispute as to the correctness of this finding so far as it goes, but good will was not taken into consideration in it, and respondents, therefore, claimed that an additional allowance should be made on the basis of evidence adduced as a necessary element in the “ fair value ” of the stock. There was a radical difference of opinion among the witnesses as to the value. Mr. J. II. Willock, one of the executors of James C. Lindsay’s will, and thoroughly familiar with the business, said that the good will had no value, because it could be carried on just as well in another part of the city—his idea seeming to be that the value of good will was a question of localization. Mr. McKnight, whose thorough competency in the hardware business was recognized by his selection as an expert in this case, said that good will certainly had a value, but that, although he had given the question of its value a great deal of thought and. often discussed it with others, he had never been able to find any satisfactory measure. And Mr. Sawhill, the expert accountant, said that among merchants the measure of value of good will was ascertained on the basis of net earnings beyond eight per cent, and its value was, therefore, $50,000. The earnings, barring one year in which they were for special reasons exceptionally high, have averaged at nine and one-lialf per cent. The stock of this company has never been put on the market, but there have been several private sales—one to John S. Lindsay by the executor of James C. Lindsay’s will, and another to a stranger, who thereupon signed the agreement at $100 per share.
    Pending litigation in the common pleas the company decided to increase its capital stock, whereupon the following notice was sent to the administrator of John S. Lindsay’s estate :
    “ At a meeting of the stockholders of the James C. Lindsay Hardware Company, held May 31, 1902, the capital stock of the said company was by unanimous vote increased from $150,000 to $250,000.
    “ Subsequently the board of directors of the company held a meeting and unanimously adopted a resolution ratifying the action of the stockholders in increasing the capital stock of the company from $150,000 to $250,000, and that the stock be issued to subscribers payable in cash in installments at the call of the board of directors, ten days’ notice to be given the subscribers from time to time as calls are made.
    “ Section 3 of article 3 of the by-laws of the company reads as follows :
    “ ‘ Whenever the capital stock of the company is increased, each bona fide owner of the stock of the company shall be entitled to purchase an amount of stock in proportion to the number of shares he holds with the company at the time of such increase at the par value of the same.’
    “If the estate of John S. Lindsay, deceased, elects to purchase its proportion of the increase of the capital stock of the company or any part thereof, please make that fact known to the undersigned not later than the 25th inst., stating what proportion of the increase the said estate desires to purchase.
    “ In the event of receiving no response to this notice by the 25th inst., it will be understood that the said estate does not desire to participate in the increase, and the stock will be sold to such other parties as subscribe and pay for same.”
    To which notice the administrator promptly responded that he would “ take and pay for the number of shares to which he was entitled.” The day after the date of this acceptance, the company, by its president, responded that:
    “ When notices were issued by the company as to the manner in which the stock would be issued, the company should, perhaps, have called your attention to the fact that the ownership of the stock in the estate of John S. Lindsay is in dispute, and will not be determined until the Supreme Court of this state has passed on that question, so that, under the circumstances, the board of directors will not issue to the said estate any of the increased stock at the present time. It will, however, set aside the pro rata amount to which the said estate will be entitled if the court shall determine that the estate lias the right to keep its stock, otherwise the said amount will be issued to the party or parties found to be so entitled.”
    So a ground of alleged waiver was that the company had continued to pay dividends, bat the petitioners answered that until the pending controversy had been settled by the court, they were bound to preserve the status in quo.
    It was also suggested that failure to enforce the terms of the agreement as against the estate of James C. Lindsay, deceased, is evidence of waiver, but the surviving stockholders, including John S. Lindsay, were not in circumstances to take his stock, and besides were not bound to do so.
    The respondents (1) deny that this court has any jurisdiction to enforce the choice of arbitrators, or fix the value of the stock; but if it has (2) claim that petitioners have waived the enforcement of the agreement; but if not (3) that good will must be taken into consideration as an element in fixing value.
    The court entered the following decree :
    And now, to wit: January 2, 1904, it is ordered, adjudged and decreed that the value of the shares of the James C. Lindsay Hardware Company, at the time of the death of John S. Lindsay, to wit: November 23, 1900, exclusive of the value of the good will of the business, which does not appear on the corporation’s books, was $108-rovo, and that the average percentum of profit in excess of eight per cent per annum on the capital stock, which excess is one and one-tenth per cent, should be capitalized, and then would be the value of the good will and that thus the value as shown by the books would be increased by $19n>vo for each share, making the total value of each share at that time §128i2ff3o4o, and that the petitioners have the option or privilege of purchasing the 225 shares in the hands of D. G. Lindsay, administrator of said decedent, upon paying that price for the whole, amounting to §28,852.66, together with all earned profits on such shares from the death of John S. Lindsay, until the time of transfer, if transfer there should be, such option or privilege to be accepted within ten days from this date.
    On exceptions a mistake in calculation having been discovered the value of the shares was found to be $1221!!oW The decree was accordingly modified.

      Error assigned was the decree of the court.

      John I). Brown, for appellants.

      Charles JP. Orr of Lazear Orr, for appellee.
    December 31, 1904 :
   Opinion by

Mk. Justice Brown,

In Fitzsimmons v. Lindsay, 205 Pa. 79, we held that the agreement of the stockholders of the James C. Lindsay Hardware Company, by which each subscribing stockholder acquired a preferred right, by way of option, to purchase the shares of anyone who died or might withdraw from the business, was a binding contract, supported by a mutual and sufficient consideration. In the proceedings in the court below to enforce its provisions against the appellee, administrator of John S. Lindsay, deceased, there was a decree for its specific performance, as nothing was developed in the evidence as a reason why it should not be specifically enforced.

As the administrator has taken no appeal, the only complaint of the appellants is as to the terms imposed upon them by the court in decreeing that they have a right to exercise their option to purchase the stock of the deceased. These terms involve but two questions : 1st Should the good will of the business have been considered in ascertaining the value of the stock? 2d The appellee having refused to perform the contract of the decedent, though requested so to do by the appellants shortly after his death, if they now elect to take the stock after the ascertainment of its value, should they receive the dividends that have accrued since the death of the deceased stockholder and pay his estate only legal interest on the valuation, the dividends having exceeded that rate ?

Though the agreement speaks of the “ book value ” of the stock, it refers also to the- “ fair price ” of it. Its language is that, if the representative of the deceased stockholder, or one desiring to retire by the sale of his interest, cannot agree with the surviving or remaining stockholders “upon a fair price or book value thereof,” then arbitrators are to be appointed, who “ shall fix a price ” for it; And it is still further provided that if the two arbitrators cannot agree, they shall choose a third party as umpire, and a majority shall fix'the “ price,” and “ at tbe price so determined ” tbe stock can betaken or refused. It is, therefore, manifest, as stated by the court below, tliatthe contemplation of the parties was a fair value of the stock as a basis upon which it could be taken; and whatever contributes to such value must be taken into consideration as an element of it. It is a matter of common knowledge that beyond the actual value of the tangible assets of a successful partnership or corporation there is also a substantial value in the patronage enjoyed, due to the reputation of the firm or company for excellence in its business. S.uch value is recognized by the law as good will. When the partnership or corporation enjoying it ceases to exist and passes away with no successor, this good will disappears with it. But with the continued successful business life of a partnership or corporation the good will goes along as one of its assets, to pass to a successor. Here the business of the hardware company goes on and with it the good will which the deceased stockholder may have helped to bring to it, imparting additional value to his stock; and those who would now enjoy the same cannot be heard to say that good will is no part of its value. This is but a repetition in brief of the view correctly held and more fully dwelt upon by the learned president judge of the orphans’ court. The correctness of the value of the good will, as found by the court below, does not seem to be seriously questioned by the appellants. There is a simple averment in the argument of their counsel that there was not sufficient evidence to justify the finding of the value of the good will. The answer to this is that there was, as is pointed out by the court in its findings of fact. The real complaint is the court’s consideration of this value as an element in ascertaining the value of the stock. The assignments of error relating to it are dismissed.

It is admitted in the answer of the appellee that shortly after the death of John S. Lindsay the appellants came to him and notified him that they desired to avail themselves of the provisions of the article of agreement, and requested him to join in the appointment of arbitrators to ascertain the book value of the shares, but that he declined to accede to their request because he had been advised that the agreement was not binding upon the estate. If he had then recognized their rights under it, and they had elected to take the stock after its value had been then ascertained, the subsequently accruing dividends would have belonged to them. They are not responsible for their delay in saying whether they will exercise the option given them, and any consequences that have resulted from the delay ought not to be borne by them but by the estate whose representative is responsible for it. What, therefore, would now be equitable if they should elect to purchase the stock, is that they pay the estate of the deceased what it would have received if they had taken the same immediately after his death. This will be accomplished by their paying it the ascertained value at the time of his death, with interest at six per cent from that day, and the subsequently accruing dividends will belong to them. The decree of the court below, directing that they shall have the option or privilege of purchasing the 225 shares of stock in the hands of the appellee upon paying the price of $27,587.70, together with all earned profits on such shares.from the death of John S. Lindsay until the time of transfer, is modified by directing that they shall exercise such privilege upon paying the said sum, together with legal interest from the death of the said deceased, all earned profits or dividends to belong to them if they exercised the option or privilege.

The decree, so modified, is affirmed without costs on this appeal to either of the parties.


source: Caselaw Access Project

author: Mb. Justice Thompson,

license: Public Domain

text:
    Robinson, Appellant, v. Powell.

      Trusts and trustees—Resulting trust—Gift—Evidence.

    In an action of assumpsit to recover the sum of $29,000 alleged to have been deposited in defendant’s bank account by a decedent to be given to plaintiff, a widow of decedent’s nephew, after decedent’s death, it appeared that defendant had lived many years in the decedent’s household as a housekeeper without fixed wages, and had been regarded as a member of the family. She had a bank account in which different members of decedent’s family had deposited money from time to time. As to the money in controversy defendant testified that the decedent had said at the time it was for her to keep. The decedent’s attorney also testified that decedent said that the money was the defendant’s, and that he desired to make provisions for her independently of his family. The attorney remonstrated with him as to the amount of the gift. Plaintiff produced two witnesses one of whom testified that decedent had declared to defendant that he wanted to leave $25,000 with defendant for plaintiff at his death. The time when the statement was made was loft in doubt. The other witness, a stranger to decedent’s household, testified that decedent had declared to her that he had given defendant in her bank account $29,000 which she was to give to plaintiff. Two witnesses testified that at the time this alleged interview was held, the decedent was so ill that no strangers were allowed to see him. Other evidence tended to show that decedent had made some other provisions for plaintiff and that he had expressed regret that he had done so much for her. Held, that a verdict and judgment for defendant should be sustained.
    The evidence to establish a parol trust must be clear, precise and indubitable.
    Argued Oct. 25, 1904.
    Appeal, No. 99, Oct. T., 1904, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1900, No. 538, on verdict for defendant in case of Annie J. Robinson v. Jane Powell.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrbzat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit to recover money bad and received. Before MacEARLANB, J.
    The facts appear by the opinion of the Supreme Court.
    The court charged in part as follows:
    [In the ordinary case, while the burden of proof is upon the plaintiff to make out his case, ho is only required to prove it to the satisfaction of the jury by the weight of the evidence. In this case, and all similar eases, the law imposes a stricter measure of proof, and the reason for it is illustrated by this case as well as any one that could be given.
    Whether it was an absolute gift or gift with a trust attached, Thomas Robinson parted with all his interest in that money, and from February 19, 1898, ho had no more control over it than any of you men have. To offset such a transaction as that, to attach to it something that does not appear upon the face of it and read into it a trust for another person requires, as I say, a much stricter measure of ... . proof tliau in the ordinary case.
    It is a question of evidence, a question of fact to be decided by you under practically two rules of evidence: The first is that to constitute a trust here the evidence must be clear, precise, unequivocal and satisfactory. It must be such as convinces you that there was a trust for Annie Robinson beyond a reasonable doubt. The ordinary expression is, the evidence must be indubitable. Indubitable means without doubt.
    In the second place to support a verdict for the plaintiff before she can recover here, there must be evidence of this trust. That does not mean evidence of the deposit, but evidence that it was intended for Annie Robinson and not for Jane Powell, the evidence of two witnesses, or in the absence of two of one witness, with corroborating circumstances. In this case, as I understand it, there is only one witness who testifies to the amount of this money and that it was deposited in Jane’s account—that is Miss Rollins. Then there must be corroborating circumstances before you could find a verdict for the plaintiff, even if you believed her story absolutely.
    The reason for that is that this is practically a proceeding in equity. In the ordinary equity case it is heard before a judge sitting as a chancellor without the instruction of a jury, and he decides the facts. Had this been a bill in equity, filed to have a trust declared and been heard by me, I would have been bound by exactly the same rules that you are.] [1]
    [Counsel for plaintiff have asked me to take this case from the jury on the ground that the case does not come up to the technical requirements, and especially as to the exact amount and as to the corroboration in all details. I have concluded to submit the case to you, reserving the question of law for future consideration, whether there is any evidence which would entitle the plaintiff to recover. By leaving the case to you I do not express any opinion as to the credibility of the witnesses ; that is for you; and my future duty would be, in case you render for the plaintiff, to decide whether certain legal requirements had been complied with. You will, therefore, consider and decide the case as if there was no such reservation, and with no idea that perhaps, if you were wrong, the court would hereafter correct you. That is not the purpose of the reservation.
    It will be necessary for you to find, before you could find a verdict for the plaintiff, every part of the trust. No part can be inferred; the plaintiff has to prove every part of it.

      The fact, if you believe it to be a fact, that Thomas Robinson expressed his intention to provide for Annie Robinson, even if he said that he wanted to deposit $25,000 in Jane Powell’s account to be given to Annie, any expression of his future intention does not create .a trust.
    It is important as corroboration of Miss Rollins’ testimony, to which I now wish to particularly direct your attention, for without Miss Rollins’ testimony the plaintiff’s case would fail.
    There is the testimony of one witness, and if it is clear, precise and satisfactory, and comes up to the standards I have given you, you have one step towards establishing the trust, but it would be necessary that she bo corroborated. Has she been corroborated ? The fact that Mr. Robinson in his lifetime deposited about $29,000 to Jane Powell’s account is nota corroboration of the trust, that is, the trust that is sought to be established. That fact alone, as I have explained to you, on the face of it shows an absolute gift.
    The corroboration as to the trust which is relied upon by the plaintiff is the testimony of these three witnesses, Squire Simmons and his son and the plaintiff herself. That testimony as far as I have noticed it—I think it is substantially correct, although it may lack the exact words—is first that of Annie Robinson that in December, 1897, the old gentleman was at her house in Beaver county, and that he said he would leave her enough to live on; did not want her to keep boarders any longer; provide for her and her children, and that he would leave it with somebody, and suggested that she send somebody to him, I believe, something of that kind.
    She suggested Squire Simmons find she did send Squire Simmons to him. The squire then says that about February 1, 1898, he and his son went out to the old gentleman’s house, and that in Jane Powell’s presence, or at least while she was in the room—part of the time she was in the adjoining room with the door open—he said that he wanted to leave some money for Annie and the children so that she and the children will not want and said: “I want to leave it with you.” The squire said he would rather have it left with someone else. He called Jane in and said: “ I want to leave $20,000 or $25,000 for Annie after my death; don’t want Squire Robinson to know about it because he would not like it. I can trust Jane ; she is honest.” That when they were leaving, at the door, the old gentlemen, in the presende of Jane, the son being there, said : “Now I will leave enough money with Jane so that Annie will not want.” The boy said that he had heard them talking about money and about Annie; that he could not hear all the conversation, but when they were leaving at the door the old gentleman said. “All right, Jimmie, I will leave enough with Jane that Annie will not come to want.”
    Those expressions “ I will leave enough money with Jane that Annie will not come to want,” would not establish a trust, because it might be that he was going to leave it with Jane and Jane would not take care of Annie, or something of that kind. It would not amount to a statement that he was going to leave this exact amount of money to be hereafter given to Annie, but the expression that he was going to leave $20,000 or $25,000 with Jane for Annie after his death or that it was to be givén to Annie after his death is more definite, except as to the amount; it does not quite fit the $29,000. It is for you to say whether this is satisfactory corroboration of Miss Rollins’ testimony. You will take into consideration all the circumstances, interest and bias of witnesses on both sides, and the fact that Miss Rollins was not called at the former trial, and the other matters in the case that have been discussed by counsel.
    Then looking at this will, because it possibly throws a great deal of light upon this, we find that he gave to charities $23,000, that he gave to relatives by special and definite legacies, naming the parties, all relatives I believe, $19,500. So you have $28,000 given in his lifetime to charities and relatives; the homestead and $39,000 to Jane; by his will $23,000 to charities and by special legacies to relatives $19,500. Then if he had $100,000 cash coming into the hands of the executors, that would leave for his lawful heirs, who were to get the residue of the estate, $57,500. In all, under the will to relatives, including possibly the Mantle boy, $500 (I believe all the rest are relatives), $77,000. As he happened to die within thirty days after the execution of the will, the $23,000 went to relatives, but for the purpose for which I am directing your attention to these facts that is significant. Now these things are to be considered by you in determining the question whether he meant this money to go to Jane Powell or to Annie Robinson, the amount of his estate, what he was doing with it and what his relatives were given.

      She says that the old gentleman told her that she was going to live in comfort, that instead of being a servant she was hereafter to be a mistress ; she was to keep her own hired girl and have a house.
    She says that her relations to the family had been very close, practically brought up with the family as one of them, taking care of them in their sickness and doing all the work, and that this old gentleman voluntarily gave her his money for her support. You know from your own judgment and experience that is not an uncommon thing.
    If her story is true' that is an end of the case. The burden is not upon her. The question is, has the other side overcome her position ? Have they overcome the face of this bank book, the face of this transaction ? She is corroborated by Mr. Brown. If Mr. Brown’s story is true it is very difficult to reconcile the story of Miss Rollins, that perhaps two days before, about March 15, Mr. Brown being out there on the 14th, he told her this money was deposited in Jane’s account to be given to Annie after his death.
    The only other testimony to which I will call your attention is that of the witness who testified in effect that the old gentleman has said that he proposed to do something for Annie Robinson, that he had paid her debts for something like 14,000, and he was sorry he had done it and would not do it again. That is a scrap of testimony tending to corroborate the position of the defendant.] [2]
    Verdict and judgment for defendant. Plaintiff appealed.

      Terrors assigned among others were (1, 2) above instructions, quoting them.

      B. S. Martin, with him W. Gr. Crawford, for appellant.
    The court helow seems to have proceeded on the theory that the bank book of defendant was a written instrument which plaintiff could only vary or contradict by the degree of proof required in a proceeding in equity, and that it amounted to a gift of the money to defendant.
    Plaintiff contends that this was error; first, because she was not a party to the instrument (bank book), and second, that the bank book is not within the class of written instruments to which the equity rule of evidence applies, as book accounts, book entries and bank books are not regarded as written instruments which cannot be affected by parol: Chapin v. Cambria Iron Co., 145 Pa. 478; McConomy v. Reed, 152 Pa. 42; Wingate v. Mechanics’ Bank, 10 Pa. 104.
    We submit that the burden of proof under the circumstances to show a gift of the money to her was on defendant, because when the parties to a gift inter vivos or voluntary trust occupy certain confidential relations towards each other and the gift is made by the confiding party to the other, a presumption of fraud or undue influence more or less strong arises, either from the mere relation or when it is accompanied by suspicious circumstances, and the burden is thrown upon the donee to show that the transaction is fair and conscientious, and that he took no advantage of his influence or superior knowledge: Miskey’s Appeal, 107 Pa. 611; Clark v. Clark, 174 Pa. 309; Cummings’ Executors v. Meaks, 2 Pittsburg Rep. 490; Hiester v. Laird, 1 Watts & Sergeant, 245 ; First Nat. Bank of DuBois City v. First Nat. Bank of Williamsport, 114 Pa. 1.

      It. A. Balph, with him James Balph, for appellee.
    To setthis gift aside, thus solemnly made and so clearly evidenced in writing, can only be done by clear, precise and indubitable evidence, and by the testimony of two witnesses, or one witness and corroborating circumstances. This is not unreasonable but a most salutary rule : Brawdy v. Brawdy, 7 Pa. 157; Todd v. Campbell, 32 Pa. 250 ; Earnest’s App., 106 Pa. 310 ; Glass Co. v. Storms, 125 Pa. 268 ; Hoopes v. Beale, 90 Pa. 82; Hartley’s Appeal, 103 Pa. 23; Phillips v. Meily, 106 Pa. 536; Cullmans v. Lindsay, 114 Pa. 166 ; Tritt v. Crotzer, 13 Pa. 451.
    To establish a trust by the declaration of the grantor it must have been made prior to, or contemporaneous with, the conveyance, for it is against reason and the rules of evidence to allow a man who has parted with all interest in an estate to charge it with any trust or incumbrance after such conveyance : Perry on Trusts, sec. 77 ; Ivory v. Burns, 56 Pa. 300; Bennett v. Fulmer, 49 Pa. 155 ; Wallgrave v. Tebbs, 2 Kay & Johnson, 313.

      December 31, 1904 :
   Opinion by

Mb. Justice Thompson,

The appellant undertook to impress upon a gift made to appellee a parol trust. In the statement filed by her appellant avers that on February 19,1898, Thomas Robinson, since deceased, placed in the hands of the appellee a sum of money, $29,360, upon the trust to pay the same to the appellant upon the death of decedent, and that appellee accepted the trust, received the money and agreed to pay the same to the appellant.

Thomas Robinson, who had accumulated a fortune of $250,000, died April 4, 1898. Appellee had a bank account in her name in the First National Bank of Allegheny. On February 19, 1898, decedent closed his own account with that bank and deposited in the same, to the credit of the appellee, $19,364.37, and on the same day ho credited her account with $10,000, thus crediting appellee with the total sum of $29,364.37. The last sum of $10,000 he drew from the Farmers’ National Bank of Pittsburg. Appellee’s account was to bear interest at the rate of three per cent. Her account had been running for some time previous to these two deposits, and money had from time to time been deposited to her credit. The deposit of $29,364.37 to the credit of appellee, the delivery of the bank book and the unqualified declaration of decedent to appellee in the presence of Mr. Brown, his counsel, that the money was for her “ to keep,” clearly evidence an absolute gift to her. Appellant, however, sought to strike down this gift as such and so evidenced by the writing, and so to modify it as to establish in her favor a parol trust of the money so deposited. Thomas Robinson died April 4,1898. Appellant testified that in December, 1897, he told her that he intended to leave her something, and that about this time he paid the sum of $4,800 for her on account of an indebtedness which she had contracted; that she went to see him in March, 1898, and that he was so sick that she was unable to do so. Several of appellee’s witnesses testified that decedent had declared in an emphatic manner that he had done enough for appellant and would give her no more money. One of appellant’s witnesses testified that decedent said to appellee : “ I want to leave $25,000 with you here for Annie at my death, and I do not want Thomas or anyone else to know anything about it.” He is unable to fix the date of the interview, but thought it not later than February 1, 1898. It is somewhat significant that he took occasion subsequent to the death of decedent, at the instance of appellant for whom he was acting as a quasi legal adviser, to call upon appellee. That he did so, he said, after Squire Robinson had told him a lady in Allegheny had stated to him (Robinson), that appellee had a check for that amount for appellant. It is also significant that Squire Robinson, the husband of appellant, was the executor of the decedent’s estate for more than a year before his death and never mentioned or suggested a trust to his coexecutor. The appellee testifies positively that this witness was not at decedent’s house in the year 1898, but had been there a year previous. She denies expressly that any such convei'sation took place. With the distinctive denial of the appellee, coupled with a reasonable doubt as to the interview irx questioxx, axid its date, this testimony lacked substantial weight! But at xnost it would only ixidicate an intention to do something for appellant, who was not a relative by blood but the widow of his nephew, and if he once had such intentioxi the proofs were uncontro'verted that having givexi appellant $4,800 he repeatedly declared that he would give her no more, and manifestly changed his’xnind if he ever had any intention to give her more.

Appellant substantially rested her proof of a parol trust upon the testimony of Miss Rollins. She testified that she called upon decedent about the middle of March, 1898, while decedent was in bed sick, and he said to her: “ I give Jane Powell (appellee) here the homestead and xnoxiey to keep her as long as she lives. I have also given her in her baxik account $29,360, which she is to give Annie Robinsoxi upon my death.” She states that she gave axi account of this interview to appellant in Septexnbei’, 1898, yet she was not called by appellaxit as a witness when the case was before arbitrators and whexi it was on trial once before the present one and no reasonable explanation therefor is givexi by the appellant. Her action in this regard throws around the testimony of this witness an atmosphere of suspicion axid doubt. She testifies that she called upon decedent and remained with him about fifteen minutes and this was the only time she had ever called upon him. The evidence shows that at that time decedent was so ill that strangers were not admitted to see him. There is no proof whatever corroborating her in regard to the visit in question, and appellee testifies that she was not at the house at that date or any other date and had never visited the house. That during the three weeks prior to decedent’s death appellee, decedent’s niece and a little girl were in constant attendance upon him. That during the last two or three weeks of his illness he was very ill and no strangers were permitted to see him. With the testimony of Miss Rollins uncorroborated as to the visit; with circumstances that point with suspicion as to its reliability; with the fact that at the time that it was alleged to have taken place decedent was in a condition of critical illness that permitted only near relatives to see him and with the clear and explicit denial by the appellee, it is plain that the proof of a parol trust was not clear, precise and indubitable. But even if doubt be raised by this testimony, it was absolutely dissipated by the testimony of Mr. Brown, the attorney of decedent. He testifies: “ He talked to me quite at length about her. He said that she had lived with him a great many years, worked hard, taken care of the home, looked after himself and brothers and he wanted to know that she would be provided for beyond any question, and in no sense dependent upon his relatives after ho was dead and gone. At the same interview he sent Jane Powell out to get the bank book and she came in with that bank book that was in her own name, as I recollect it, in that First National Bank of Allegheny, and the explanation of that was because I was remonstrating about the provision he had made for this girl, and he wanted to assure me that he had done far more than that for Jane Powell, and that bank book I recall distinctly had at least one, and I think two deposits of $10,000 each, and then on a date, which was probably in February of the same year, there was deposited the sum of $29,000 and odd dollars in cash, and when I saw the deposit I was literally amazed, and I undertook to try to persuade him that he was doing himself an injustice, that he might get well and might regret that, and that it ought to be undone, and he said no, that he wanted to be sure that she would be provided for, and it was then that he told me of the three gifts that he made to the nephews.” And again, when asked whether anything luid been said by decedent about his intending this money as a gift in trust for Annie Robinson, he replied : “ I have said to you distinctly that he informed me that he had made this deposit for Jane Powell.” When asked whether there was anything said about making provisions for Annie Robinson, he said: “Never.” “ The only expression he ever gave was the one I gave you in 1896, when he said that was the end of his gifts to her,” and in response to the question whether decedent called witness’ attention to the deposit of $29,000 he said: “Yes, sir, he did that by way of justifying the gift that he was making to this Bowers girl, and to my knowledge he gave her $20,000.”

Upon such proofs, giving the widest latitude to the vagaries of the mind, no chancellor with a gleam of intelligence would venture, upon a bill filed, to declare a parol trust in behalf of appellant.

In the case of Earnest’s Appeal, 106 Pa. 310, it was said by Mr. Justice Clark : “ In a long line of cases it has been held that to establish a resulting trust, the evidence must be clear, explicit and unequivocal; the rule is so well established that a citation of the authorities in extenso seems unnecessary. We may refer however to McGinity v. McGinity, 63 Pa. 38; Nixon’s Appeal, 63 Pa. 279; Lingenfelter v. Richey, 62 Pa. 123; Kistler’s Appeal, 73 Pa. 393; Fricke v. Magee, 10 W. N. C. 50 ; Buchanan v. Streeper, 11 W. N. C. 434.

“ Whether therefore a trust is deducible in any given case, from the nature of the transaction as a matter of actual intent, is susceptible of oral proof; but he who alleges the trust, takes the burden of establishing it, and all the essential requisites of that trust must be shown by clear, explicit and unequivocal proof.”

It is contended by the appellant that the learned trial judge erred because he cast the burden of proof upon her when he charged: “ It is a question of evidence, a question of fact to be decided by you under practically two rules of evidence: The first is that to constitute a trust here, the evidence must be clear, precise, unequivocal and satisfactory. It must be such as convinces you that there was a trust for Annie Robinson beyond a reasonable doubt. The ordinary expression is, the evidence must be indubitable. Indubitable means without doubt. That does not mean without any doubt; it means a doubt which rises from the evidence, which is reasonable and would cause an honest mind to -hesitate before arriving at a conclusion.”

The written evidence, the entries and the bank book, clearly establish an absolute gift to the appellee and the appellant undertook to change in effect that writing from such gift to a trust in her favor. When such is sought to be done the rule is well settled that the proof of it must be clear, precise and indubitable.

In the case of Cullmans v. Lindsay, 114 Pa. 166, Mr. Justice Clark said : “ The parol evidence, however, which will be effective to reform a written instrument, in such a case, must, it is said, be clear, precise and indubitable; that is to say, it must carry clear conviction to the minds of the jurors that the witnesses are credible, that the facts are distinctly remembered and are truly and accurately stated; and to the mind of the court, that if the facts alleged are true, the matters in issue are definitely and distinctly established: Spencer v. Colt, 89 Pa. 314; Honesdale Glass Co. v. Storms, 125 Pa. 268; Tritt v. Crotzer, 13 Pa. 451.

This is not a case where the rule that boob entries and bank books are not to be attacked by parol proof, but an attempt to set lip a parol trust to change the effect of a gift evidenced by the entries on' the bank books. The learned trial judge, therefore, cannot be convicted of error in charging as he did, and thus putting the burden of proof upon the appellant. It was also contended by the appellant that, owing to the relations of the appellant with the decedent, this being a gift inter vivos, the burden of proof was upon the appellee to show the fairness of the transaction. It may be said that where there are certain relations of confidence, accompanied by peculiar circumstances, a donee may be required to establish the fairness of the transaction, by which he or she is benefited: Miskey’s Appeal, 107 Pa. 611. But in the present case there was nothing in the relations that existed between the appellee and decedent to occasion any suspicion whatever, and there certainly were no circumstances whatever of a doubtful character connected with the gift in question. The decedent understood and knew exactly what he ivas doing and what he intended to do. Mr. Brown testified that decedent talked to him at length about appellee. He said that she had lived for a great many years in the family, had worked hard, taken care of him and looked after himself and his brothers. That he wanted to know that she would be provided for and in no way be dependent upon his relations after he was gone. Appellee testified that she was treated as a member of the family; that she had had charge of the house for more than thirty years without any stipulated wages and that members of the family were in the habit of depositing money to her credit. The case is therefore simply one in which the decedent, a very old man, realizing that appellee had practically devoted her life to the service of himself and his family and recognizing the value of her services, desired to provide for her in her old age against Avant in the event of his death. It is futile to argue that there are any questionable circumstances connected with the gift or any suspicions surrounding it. If so it is clear that there cannot be the slightest warrant for the suggestion that the burden of proof was cast upon her to show the fairness or the propriety of the gift.

It is also assigned for error that the learned trial judge erred in affirming the defendant’s fourth point, which point was as folloAvs: “ If the jury believe the testimony of John D. Brown, Esq., and do not believe that of Miss Rollins, the verdict must be for the defendant ” because it tended to make the case turn upon a single witness. Such Avas not the result in the present instance and clearly if the jury disbelieved Miss Rollins there was not the slightest foundation for appellant’s claim and if they disbelieved her but believed Mr. Brown, there was no evidence whatever to warrant the conclusion that a parol trust had been established.

The assignments of error are not sustained and the judgment is affirmed.


author: Me. Justice Dean,

text:
    Henry, Appellant v. Black.

      Equity—Bill in equity—Pleading.

    A bill in equity should lie a simple statement of the essential facts of the case.

      Statute of frauds—Memorandum in writing—Description of property— Hotel.

    A receipt in writing for a portion of the purchase money of a hotel property, which specifically designates the hotel by name, is a sufficient memorandum in writing within the statute of frauds, inasmuch as the naming of the hotel fixes its site, and the city and county records establish the boundaries and quantity of the land.

      Equity—Specific performance—Vendor and vendee—Corporations—Fraud.

    On a bill in equity for specific performance it appeared from the pleadings that the treasurer of a corporation with authority from his company took an option in his own name to purchase real estate, the seller agreeing to pay the company a large fee. The treasurer subsequently sold the property giving a receipt in the name of the corporation to the purchaser for a portion of the purchase money. Thereafter the treasurer took a conveyance of the property in his own name and immediately executed a deed to a third person who had knowledge of the prior transactions, and who also agreed to pay a fee to the corporation. It appeared that the business of the corporation consisted of dealing in real estate and taking options. No express written authority was given to the treasurer as to the transaction in question. Held, (1) that no written authority to the treasurer from the corporation was necessary; (2) that the facts disclosed a fraud upon the first purchaser; (3) that specific performance in favor of the first purchaser could be enforced against the original owner, the corporation, the treasurer and the second purchaser.
    Argued Oct. 25, 1904.
    Appeal, No. 115, Oct. T., 1904, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 585, dismissing bill in equity in case of D. F. Henry, and Annie E. Henry, his wife, in right of Annie E. Henry v. Sarah Black, The Union Realty Company, Robert J. Coyle, Jr., and Andrew W. Mellon.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestbezat, Potter and Thompson, JJ.
    Reversed.
    Bill in equity for specific performance. Before Shafer, J.
    Demurrer to bill.
    The material averments of the bill are set forth in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Wm. A. Stone, with him Stephen Stone, for appellants.
    There is a mutuality between Mrs. Henry and Sarah L. Black, because the option is to Robert J. Coyle, Jr., his nominees or assigns: Kellow v. Jory, 141 Pa. 144.
    The courts in Pennsylvania have always enforced options on bill by decrees of specific performance : Dalzell v. Imblum, 32 P. L. J. (N. S.) 138.
    ■ Where one purchases and takes a deed for part of a tract of realty, with knowledge of a previous option in a third person, the former will be compelled to convey to the latter on bill for specific performance against the former and the vendor in the option: Hamory v. Sargent, 25 Pa. County Court Rep. 191.
    It is well settled that the principal is bound by the act of his agent within the scope of his authority that he is held out to the world to possess, even notwithstanding the latter acted contrary to instructions: McNeile v. Cridland, 168 Pa. 16.
    The holder of an option has the right to specific performance when the vendor has subsequently sold: Baum et al. v. Dubois, 43 Pa. 260.
    A demurrer cannot be sustained to a bill for specific performance where the statute of frauds is alleged as a defense: Ralston v. Ralston, 23 P. L. J. (N. S.) 254; In re estate of Wm. Breitenstein, 23 P. L. J. (N. S.) 255.

      Henry A. Davis, with him Reed, Smith, Shaw ¿f* Beale, S. S. Mehard and Ralph Longeneolcer, for appellees.
    The statute of frauds applies to an equitable as well as a legal title: Shoofstall v. Adams, 2 Grant, 209.
    A direct oral agreement to purchase as the agent of another will not, in the absence of fraud or the payment of the purchase money by the principal, create a trust: McCall’s Appeal, 11 Atlantic Reporter, 206; Fogel v. Schall, 2 Central Reporter, 530.
    The statute of frauds requires the authority of an agent to sell lauds to be in writing: Lewis v. Bradford, 10 Watts, 67.

      December 31, 1904:
   Opinion by

Me. Justice Dean,

This is a bill to compel the specific enforcement of a contract for the sale of land. The bill of complainants is met by a demurrer in which defendants aver: (1) That the bill does not set out sufficient facts to make it cognizable in a court of equity. (2) That it does not set out sufficient facts to entitle plaintiffs to the relief prayed for. (3) The bill does not set out any contract in writing, nor any contract enforceable specifically in a court of equity.

The bill should be a simple statement of the essential facts of the case: Winebrenner v. Colder, 43 Pa. 244.

The facts averred in the bill are these: That Sarah L. Black, one of the defendants, on January 7 and for years prior thereto 'was the owner in fee simple of a lot of ground on the corner of Smithfield street and Virgin alley in the city of Pittsburg, known as the Hotel Duquesne property; that plaintiffs owned the Hotel Henry property adjoining the Hotel Duquesne; the Union Realty Company is engaged in the business of buying and selling on commission the property of owners; on May 7, 1903, Sarah L. Black gave to R. J. Coyle, stockholder and treasurer of the Union Realty Company, and to his nominee and assigns an option for thirty days on the Hotel Duquesne property at the price of $800,000 payable $25,000 cash, the balance $775,000 to be secured by bond and mortgage for ten years bearing interest at four per cent payable semiannually; Sarah L. Black agreed to pay the Union Realty Company $10,000 if sale was made. Coyle and one John K. Ewing, a director of the company, then sold to Annie E. Henry the Hotel Duquesne property on June 1 following, within thirty days, at the exact price specified in the option of Mrs. Black to Coyle, but substituting as the vendor the Union Realty Company. This is a copy of the writing delivered to Mrs1. Henry :

“ June 1st 1903. Received from Mrs. Annie E. Henry five thousand dollars ($5,000) hand money on account of sale of Hotel Duquesne property as per agreement made this day.

(Signed) “ Union Realty Company “ $5,000 Per J. K. Ewing.”

The negotiations for the sale were made and carried on by and through Ewing and Coyle; the $5,000 named in the receipt or contract was paid them; the plaintiffs on June 5,1903, within five days, tendered to Sarah L. Black $25,000 in cash and a purchase money mortgage payable with interest as stipulated in her option and demanded a deed; she refused to accept the money or deliver a deed; in five days after filing this bill and ten days after plaintiffs tendered to her the cash, mortgage and bonds, Mrs. Black executed and delivered to Coyle a deed for the property, received from him the $25,000 cash with the mortgage and bond in the sum of $775,000; the same day Coyle executed to A. W. Mellon his deed for the property for the consideration agreed to be paid by Mrs. Henry to the .Union Realty Company. Mellon took the deed with the full knowledge of the previous negotiations and transactions between Coyle and Mrs. Black, and between Coyle, Ewing, the Union Realty Company and Mrs. Henry. The Union Realty Company received from Sarah L. Black $10,000 commissions on the first sale of the property to Mrs. Henry; either the company or Coyle for the company received an additional commission from Mellon for the "sale of the property to him.

These are the facts averred, either within the knowledge of plaintiff or on information and belief. The defendants have only demurred, therefore we must take them as true, at least so far as concerns the issue raised by this appeal. Then, as a fact, the Union Realty Company did declare to D. F. and Annie E. Henry, that it was the owner of an option with the power to sell the Hotel Duquesne property and made a sale in writing signed by it of property to Mrs. Henry, who made a payment of $5,000 down, which the company by its agent received. The bill avers the full price was to be $800,000 ; the writing states that the $5,000 was on account of sale of Duquesne Hotel property as per agreement made this day. This was not, as appears fromffhe receipt, a very explicit statement of the full consideration, for when bill and receipt are read together the consideration was much larger and the method of payment was fully set out and agreed upon. The demurrer, in effect, admits the contract in all its details. But aside from the full averments in the bill, which are not part of the receipt, we have a writing reciting a sale of a specific property, identifying it by name, and an actual payment of $5,000 of the consideration. If the description was sufficiently certain, this was a complete contract between the Union Realty Company to sell the Hotel Duquesne property and on the part of Mrs. Henry to buy it at a price exceeding #5,000. Was the description sufficiently certain ? The hotel was a prominent one, on one of the principal streets of Pittsburg ; probably three fourths of the citizens of Pittsburg know its exact location. But that, under the authorities is not sufficient; is the description in the writing full enough to enable a court to make a decree of specific performance of the contract ? The identity of the location is fixed by the name of the hotel. Given the hotel site, the lots on which it stands and the ground properly appurtenant to it, can be ascertained by measurement to a certainty. Our records in rural counties are full of deeds which describe thousands of tracts of land conveyed only by their warrantee names ; no one thinks of objecting to them for insufficiency of description; if a dispute arises a survey identifies their location ; a copy of the official survey from the land office establishes their exact boundaries and quantities of land. So here, the identity of the hotel site being fixed, the city and county records establish the boundaries and quantity. This contract then clearly identified the subject of it; that identification furnished the purchaser or a court the means of making clear the boundaries and quantity of land. This, since Wilson v. Clarke, 1 W. & S. 554, and especially since McFarson’s Appeal, 11 Pa. 50B, which gave authoritative interpretations of our statute of 1772, as compared with the British statute of frauds, has been held a sufficient memorandum in writing to escape the inhibition of the statute of frauds and such has been the ruling in the long line of cases since the decisions in these two cases. What was said of the contract in the last named case may be said of the one in this : “ It is in wilting, is sufficiently certain and defined in everyrequired particular inclusive of the question of estate to be conveyed, was made by parties able to contract upon a valuable consideration and imports to be fair and equal. Why should it not then be executed ? ”

Up to this point, then, these facts distinctly appear as averred in the bill, that the Union Realty Company, professing to be the owner of the Hotel Duquesne property, sold it by a memorandum in writing to the plaintiff. It is further averred that Mrs. Black, the original owner, had on May 7, 1903, given to R. J. Coyle, Jr., a full and complete written option for the sale of the property at the price of $800,000, of this $25,000 was to be cash and the balance, $775,000 was to be paid in ten years, with interest at four per cent to be secured by bond and mortgage upon the property. The option was to continue for thirty days. Coyle was a stockholder, treasurer and employee of the Union Realty Company. Sarah L. Black further agreed with the Union Realty Company, through its officer and employee Coyle, to pay to the company a commission of $10,000. The conveyance of the property, by the option, was to be made to Coyle or to his nominee or assigns. It will be noticed by paragraph IV of the amendment to the bill, it is averred, that Mrs. Black agreed with the Union Realty Company to pay to it this $10,000 as commission for the Sale of the property at the price named; further in paragraph III it is averred, in substance, that the realty company authorized its employees in the transactions of its business to obtain options. The averments in the bill, although unskillfully if not carelessly drawn, yet show clearly enough to be obvious, that Coyle took the option for the corporation of which he was a stockholder, officer and employee. Coyle and Ewing, the latter a stockholder and director in the company, then with Mrs. Black’s option in their possession representing the property as that of the Union Realty Company, opened negotiations with Mrs. Henry, the plaintiff and purchaser of the hotel. Mrs. Henry agrees to buy at exactly the same price as that stipulated for by Mrs. Black in her written option. A memorandum in writing is made as heretofore quoted signed by the Union Realty Company. It will be noticed that paragraph IV of the bill avers that Coyle, Ewing and the realty company approached Mrs. Henry and offered to make sale to her of the property specified by Mrs. Black in her option to Coyle or his nominee, and the written receipt showing the sale made by them is signed by the realty company.

We must take the facts as here averred, whatever inferences are reasonable and obvious we must draw. We do not demand of a pleader that he shall express every obvious inference necessarily to be drawn from plain facts. A man with his senses of sight and hearing unimpaired who goes in front, of a moving railroad train, we infer is negligent; tlie facts are susceptible of no other reasonable inference. Here Coyle was an officer transacting business for the realty company; be takes this option from Mrs. Black in his own name, a conveyance to be made to him or his nominee within thirty days. She agrees to pay the company a fee of $10,000,what for?

The answer is an obvious inference—for making the sale at the option price. Coyle and Ewing, both officers of the company representing it to be for the optional period the property of the company, by a writing sell to Mrs. Henry. Whose property is it ? Clearly that of the company for that from the writing is the obvious inevitable inference. Suppose Coyle and Ewing had claimed after the sale to Mrs. Homy the property was theirs as individuals and did not belong to the company, would a court of equity have hesitated one minute on these facts to decide the property was that of the company when Mrs. Henry bought? That the option, although in the name of Coyle, was merely held by him as trustee for his company ? Mrs. Black, it appears, refused to execute a deed to Mrs. Henry when the latter formally tendered performance of all the stipulations of the option; she did however in a very few days convey the property to Coyle ; on the same day Coyle conveyed it to Mellon, and in addition to the ©10,000 commission received from Mrs. Black, received, either for himself or his company, another fee from Mellon.

The facts averred in the bill are sufficient to induce a court of equity to declare Coyle a trustee of the equitable title in favor of the Union Realty Company, and that the rights of that company passed to Mrs. Henry by writing of June 1, 1903. If Mrs. Black still held the legal title, equity would compel her to convey either to Coyle or the realty company and one or the other of them to convey to the plaintiff. She had however conveyed to Coyle; of course he is affected with notice of the fraud attempted to be practiced on plaintiff and if he still held the title would be ordered to convey to plaintiff. But he conveyed to A. W. Mellon, another of the defendants, who it is averred had full notice of all the transactions and all the conduct of the parties up to and including the sale to plaintiff. If that be so he holds it subject to the same trust, and the strong arm of a chancellor will reach him as effective^ as it could have reached Coyle had he retained the legal title.

The statute of frauds does not protect a fraud of that character. That a corporation which can only conduct its business by and through its officers and employees, must show, whenever called upon, a written authority to that officer to do that particular act; and when that officer acting for the company executes a written contract by which the corporation is to receive the benefit of the first act performed by its officer before it can be held up to that contract must show a written authority, would be to stretch the inhibition of the statute far beyond anything contemplated by its framer.

Much stress is laid in the argument of defendants’ counsel, on the entire absence of any writing showing that Coyle was the agent of the Union Realty Company in the transactions. But the business of the company was to take options for the sale of real estate ; Coyle was one of its officers and employees employed in conducting its business; when he took the option from Mrs. Black she agreed to allow his company a commission of $10,000 on a sale at the optional price; with Mrs. Black’s written option Coyle and Ewing offer the property for sale at Mrs. Black’s price to Mrs. Henry; she accepts and the Union Realty Company, not Coyle, sells to her; within a very few days Coyle, in the face of the written contract of his company to sell to Mrs. Henry which he assisted in making, sells the property for an additional fee to himself to Mellon. What clearly results from these facts ? A trust in Coyle in favor of his company, a palpable trust ex maleficio. It is immaterial that the realty company is not here asserting the trust in this suit; it asserted its title under the right which came to it through Mrs. Black’s option ; by its written contract of sale to Mrs. Henry. All its rights passed by that sale to her and she can effectively assert them in spite of the quiescence of the realty company. And if Mellon took his deed from Coyle with notice of Coyle’s mala fides, he is but a trustee of the title for the first purchaser Mrs. Henry.

The learned judge of the court below held, in his opinion on the exceptions, not apparently with much confidence, that this contract was within the statute of frauds; we hold differently. Our first impression on the argument was, that it was only one of those sharp business transactions, which however reprehensible in itself, the moving spirit was cunningly careful to keep within the law so that he might make double fees, but a more careful consideration of the averments of the bill and of the law applicable to them, leads us to the conclusion that a much stronger adjective than “ sharp ” would properly characterize it. Exactly at whose door the fraud lies or to what extent each must share the consequences of it we cannot now determine. Our inability to so determine at this stage of the case, moves us to only reverse the decree, order the bill to be reinstated and direct defendants to answer over.


author: Mr. Justice Fell,

text:
    Machin v. Prudential Trust Company, Appellant.

      Evidence—Parol evidence—Fraud—Written instrument.

    It is competent for a defendant to prove that he was induced to execute a written agreement by fraudulent representations affecting the consideration. Such testimony does not alter nor vary the terms of the contract but shows a failure of consideration which entitles the defendant to relief from the written obligation.
    In an action against the guarantor of a building contract, an affidavit of defense was filed which averred that plaintiffs, the contractors, had agreed with the owner of the building that no mechanic’s lien should be filed against the building, and that at the execution of the agreement of guaranty plaintiffs represented that their agreement with the owner contained a full and absolute waiver of the right of lien; that relying on this representation, defendants executed and delivered their agreement; that this representation was an essential part of the inducement, and without it the agreement would not have been made; that after a draft of an agreement containing a provision against filing liens had been submitted to and approved by the owner, a clause practically nullifying the provision was covertly inserted for the purpose of defrauding the owner and defendant, and that the agreement was executed without knowledge of the alteration; and that liens aggregating a large amount specified, had been filed by the plaintiffs and others. Held, that the affidavit of defense was sufficient to prevent judgment.
    Argued Oet. 25, 1904.
    Appeal, No. 128, Oct. T., 1904, by defendant, from order of O. P. No. 1, Allegheny Co., Jutie T., 1904, No. 688, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Arthur Machín et al. v. Prudential Trust Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Assumpsit on a contract of guaranty.
    Rule for judgment for want of a sufficient affidavit of defense.
    The material averments of the affidavit of defense are set forth in the opinion of the Supreme Court.

      Error assigned was the order of the court.

      H. L. Gastle of Stone £ Stone, for appellant, cited:
    Cummings v. Klapp, 5 Watts & Sergeant, 511; Morgan Engineering Co. v. McKee, 155 Pa. 51; Jessop v. Ivory, 172 Pa. 44 ; Powelton Coal Co. v. McShain, 75 Pa. 238; Shughart v. Moore, 78 Pa. 469.

      G. G. Dickey, with him G. Von Phul Jones and Pier Dannals, for appellees,
    cited: Krueger v. Nicola, 205 Pa. 38; Homewood People’s Bank v. Heckert, 207 Pa. 231.
    December 31, 1904:
   Opinion by

Mr. Justice Fell,

The substance of the statement of claim is that the plaintiffs agree to construct for the Monongahela Real Estate Corporation two buildings for which they were to be paid $477,000. The capital of the corporation was only $1,000 and the payments were to be provided for by an increase of capital and by loans to be secured, one of $200,000 on first mortgage and one of $40,000 on second mortgage. Of the second loan $30,000 was to be paid the plaintiffs on the completion of the building. The agreement between these parties was in writing but was not to become binding until the defendant guaranteed the final payment of $30,000. This the defendant, having taken the second mortgage, agreed with the plaintiffs to do and the agreement was put in writing. This action is on the agreement to recover the amount of the reserved payment.

It is substantially averred in the affidavit of defense that the plaintiffs had agreed with the real estate corporation that no mechanics’ liens should be filed against the building, arid that at the execution of the agreement sued upon the plaintiffs represented that their agreement with the real estate corporation contained a full and absolute waiver of the right of lien and that relying on this representation the defendant executed and delivered its agreement; that this representation was an essential part of the inducement and without it the agreement would not have been made; that after a draft of an agreement containing a provision against filing liens had been submitted to and approved by the real estate corporation, a clause practically nullifying the provisions was covertly inserted for the purpose of defrauding the corporation and the defendant, and that the agreement was executed without knowledge of the alteration ; that liens aggregating over $474,000 have been filed by the plaintiffs and others.

These averments, if established by proof, would show such fraud in the procurement of the agreement as would relieve the defendant from liability. The defendant would not be precluded from showing the facts averred on the ground that the evidence would be in contradiction of the written instrument. It is competent for a defendant to prove that he was induced to execute a written agreement by fraudulent representations affecting the consideration. Such testimony does not alter nor vary the terms of the contract but shows a failure of consideration which entitles the defendant to relief from the written obligation : Stubbs v. King, 14 S. & R. 206 ; McCulloch v. McKee, 16 Pa. 289 ; Schuylkill Co. v. Copley, 67 Pa. 386 ; Atherholt v. Hughes, 209 Pa. 156. It is unnecessary to consider the other grounds of defense set out in the affidavit because this one was sufficient to prevent judgment. The order of the court making absolute the rule for judgment is reversed.


author: Mu. Justice Mestbezat,

text:
    Wescott v. Crawford, Appellant.

      Ejectment—Rules of court—Evidence—Parol sale—Possession—Improvements.

    Where a rule of court provides that in an ejectment the parties shall file abstracts of title containing the facts on which they rely, and that at the trial the evidence shall be confined only to the facts denied, a defendant who has set forth in his abstract a written agreement as the basis of his title cannot, after he has admitted that the agreement will not sustain his title, offer evidence to show title by a verbal sale of the property followed by possession and valuable improvements. In such a case it is not reversible error for the court to refuse to admit in evidence the written agreement, inasmuch as the exclusion of it did the defendant no harm.
    Argued Oct. 26, 1904.
    Appeal, No. 56, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. Term, 1902, No. 668, on verdict for plaintiff in case of Anna M. Wescott v. J. A. Crawford.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Ejectment for land in the twenty-sixth ward of the city of Pittsburg. Before Kennedy, P. J.
    At the trial the defendant offered in evidence a written article of agreement set forth in his abstract of title, dated February 1, 1902:
    “ Between Phillips & Mittenz wey estate of the county of Allegheny, and state of Pennsylvania, parties of the first part, and Horace G. Mehring of Pittsburg, Pennsylvania, party of the second part.
    “ Witnesseth, that the said parties of the first part, for the consideration hereinafter mentioned and contained, agree to sell and convey unto the said party of the second part, his heirs and assigns, all that certain plot of ground, at the foot of twentieth street, fronting on the Monongaliela river, twenty-sixth ward, Pittsburg, Pa., 200 feet by 400 feet, more or less.
    “ All that certain contract with Armour & Co., of S. S., Pittsburg, Pa., as dumping ground, for the sum of $50.00 to "be carried out by the party of the first part, the said party of the second part to receive the said sum of $50,00,

      “ In consideration whereof the said party of the second part agree to pay to said parties of the first part therefor, the sum of twenty-five thousand ($25,000.) dollars in the manner following, to wit: $500 on signing this agreement, $9,500 on delivery of deed. Balance to be secured by bond and mortgage on premises, $15,000 on or before August 1, 1902.
    “ And upon payment of the said sum, the said parties of the first part, will, at their own proper cost and charge, make, execute and deliver to the said party of the second part, a good and sufficient deed for the proper conveying and assuring of the said premises, in fee simple, free from all encumbrance, and dower, or right of dower, such conveyance to contain the usual covenants of Phillips & Mittenzwey estate, by deed of warranty.
    “ And it is further agreed by and between the said parties that possession of said premises shall be delivered to the party of the second part, his heirs or assigns, on the first day of February, 1902, until which time the party of the first part shall be entitled to have and receive the rents, issues and profits thereof.
    “ In witness whereof, the parties to this agreement have hereunto set their hands and seals, the day and year first above written.
    “ Mjbs. Mary H. Phillips. [Seal]
    “Admx. John O. Phillips Estate. [Seal]
    “ Wm. Mittenzwey Estate. • [Seal]
    “ Per Anna M. Wescott.
    “ Horace G. Mehring. [Seal]”
    Objected to, (1) because it is void for want of proper parties, parties being the Phillips and Mittenzwey estate of the county of Allegheny, state of Pennsylvania, parties of the first part, and Horace G. Mehring, of Pittsburg, Pennsylvania, party of the second part; (2) because Anna M. Wescott is not shown to have had any authority to appoint her brother, by a transfer of his interest and conveyance of his interest, as an heir or by any agreement to convey; nor had she any authority as administratrix of her late father’s estate to convey, or enter into an agreement to convey, the real estate of her late father, and she could not, and did not bind herself in her own capacity, because the agreement shows on its face that she was a married woman, and that her husband does not concur or join in the agreement, and is otherwise incompetent and irrelevant.
    Mr. Rodgers: This offer to be followed by evidence that Mrs. Wescott agreed, verbally, to put Crawford into possession, and that in pursuance to that he entered into possession and made improvements on the property worth in the neighborhood of $25,000. That the said Wescott knew of the entry by Crawford on the premises, and knew of the improvements being made from time to time, that she received a portion of the purchase money; that she afterwards, as appears by the plaintiff’s abstract, issued an execution upon a judgment against John Mittenzwey, her brother, a co-tenant, and that the property was knocked down to the said Woodward at sheriff’s sale, and that he was in on the purchase and trustee for Mrs. Wescott. And also that John D. Mittenzwey knew of the making of the contract already offered, the terms thereof, and consented thereto, and that he knew of the entry by Crawford under the agreement and the improvements being made by Crawford from time to time.
    Objected to as incompetent for the reason that Mrs. Wescott, being confessedly a married woman, can be affected by the matters held as a ground of estoppel.
    3. Because the agreement being void on its face, made by parties that'could not bind the estate or themselves, or John Mittenzwey and that they did not, in fact, bind the estate or themselves or John Mittenzwey. That defendant was bound to know that he made his improvements at his peril. Objections sustained. Counsel for defendant excepts. Exceptions allowed and bill sealed. [1]
    Counsel for defendant renewed preceding offer, adding thereto the offer to prove that the husband of Mrs. Wescott was present at time of the making of the agreement and assented thereto, and h”e also agreed to give the defendant, Crawford, possession of the property; and that in pursuance of that agreement and that of Mrs. Wescott, possession was taken, and that the husband had the same knowledge of the improvements being made upon the property as offered to be proved in the offer relating to his wife. Objected to as incompetent. Objections sustained. Counsel for defendant excepts. Exceptions allowed and bill sealed. [2]
    The court charged as follows:
    [My instructions, to you are that under the evidence in this case your verdict should be for the plaintiff.] [3]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (1-2) rulings on evidence, quoting the bill of exceptions; (3) the charge of the court.

      II L. Castle of Stone Stone, for appellant,
    cited: Eberly v. Lehman, 100 Pa. 542; Henrici v. Davidson, 149 Pa. 323.

      J. M. Stoner, with him M. A. Woodward,, for appellee,
    cited: Goucher v. Martin, 9 Watts, 106.
    December 31, 1904:
   Opinion by

Mu. Justice Mestbezat,

The learned counsel for appellant, the defendant below, in their printed brief of argument say: “ In the argument of these cases, we will not waste any of the time of the court in attempting to uphold the writing attached to the affidavits of defense in these cases as a complete contract for the sale of the property therein designated, and which can be enforced as such in law. The theory of the defendant is, that this was a verbal sale of property, followed by possession and valuable improvements, such as takes it out of the statute of frauds.”

This statement of the appellant’s position shows that his claim to the premises for which this action was brought is based on a parol sale followed by possession and valuable improvements, and not on the written contract of February 1,1902, between the Phillips and Mittenzwey estates and Mehring, who subsequently assigned his interest in the agreement to Crawford. It is, tliereiore, clear that under the pleadings in the case the learned trial judge was right in excluding the offers of evidence which are the subject of the first and second assignments and in directing a verdict for the plaintiff, the appellee, which constitutes the third assignment of error.

The courts of common pleas of Allegheny county have a rule which provides, inter alia, as follows: “In all actions of ejectment .... it shall be the duty of the jfiaintiff .... to file in the office of the prothonotary of this court .... a statement containing a description of the land together with the number of acres and the proportion thereof which he claims, and an abstract of title on which he relies for his recovery whether the same be in writing or otherwise, and where the same is a matter of record, a reference thereto. And the defendant shall plead ‘ not guilty,’ .... and at the time of. entering his plea he shall .... file a statement containing an abstract of the title or facts on which he relies for his defense, whether the same be in writing or otherwise; and where the same is a matter of record, a reference thereto, together with a specification of so much of the plaintiff’s title as he denies, and so much thereof as is not denied shall be deemed admitted ; . . . . the case may then be ordered on the issue docket under the rule ; and at the trial the evidence shall be confined to the facts respectively denied by the parties.” This rule was before the court for consideration in Lehman v. Howley, 95 Pa. 295, when Mr. Justice Sterrett, delivering the opinion, said: “ The power of the court to make and enforce such a rule as this cannot be doubted. ... Its provisions are just and reasonable, and their enforcement will greatly expedite and facilitate the administration of justice by eliminating matters about which there is really no dispute, and thus narrowing the controversy to such questions as are actually involved in the case.”

The appellee filed an abstract showing title in her to the premises in dispute. The appellant filed what he denominates an affidavit of defense, but which doubtless was intended for a statement, containing his abstract of title and facts, in which he sets forth that he relies for his defense on the appellee’s abstract and the written agreement of February 1,1902, by which the Phillips and Mifctenz wey estates agreed to sell and convey the premises to Mehring, who assigned his interest in the contract to Crawford. He also avers in his statement substantially the execution of the agreement of February 1, 1902, and its assignment to him ; that he took possession of the premises and made improvements thereon with the knowledge of, and without any objection by, the appellee ; that he offered to pay the appellee the price called for in the agreement but'she refused to make him a deed, and that since the agreement was signed the appellee has not been in a position to make title to the property “ free and clear of incumbrances.”

The appellant concedes, as will be observed, that the agreement of February 1, 1902, is not “ a complete contract for the sale of the property therein designated which can be enforced at law.” He therefore abandons, on this appeal, the written contract between the Phillips and Mittenzwey estates and Meliring as a defense to the action brought by the appellee. In this view of the case the admission in evidence of the contract, which is the subject of the first two assignments, would not have shown title in him nor given him the right to the possession of the property, and hence the action of the court in excluding it did him no harm. It should be noticed in this connection that the agreement and the attached assignment were not offered for the purpose of sustaining “ the theory of the defendant ” that the appellee had sold the property to the appellant by a parol or verbal sale under which the latter now claims the property, but, so far as the record discloses, simply for the purpose of establishing a valid title to the premises in the appellant by the written contract. The appellant’s admission of the invalidity of the agreement of February 1, 1902, fully justified the learned court in excluding the offer.

If, as is now claimed, the title to the premises passed from the appellee to the appellant by a verbal sale, the offer in its entirety was clearly objectionable under the pleadings in the case. Part of the offer might have been competent and relevant if contained in an offer by itself, but if admitted it would not have been sufficient to establish title to the property in the appellant. His statement set up the written contract on which he relied for his defense, and which he averred was followed by possession and valuable improvements made on the premises by him. There is no allegation or averment whatever in the statement that he claimed title by a parol or verbal sale. Hence the rule of the court below prevented the appellant from offering any testimony to show that he held the property by such title. This rule required the appellant to set forth in his statement “ an abstract of the title or facts on which he relies for his defense, whether the same be in writing or otherwise.” What is not alleged or set forth in the abstract or statement, material to the issue, cannot be proved on the trial as a defense to the action. The defendant cannot set up in his statement a written contract as a defense and be permitted to prove on the trial a parol sale or any other defense. The purpose of the rule is to compel the parties to set forth their titles in their respective abstracts and statements so that, on the trial, each may be prepared to assert his own title and attack the disputed part of his adversary’s title. The parties, therefore, must be confined on the trial of the cause to the allegations set out in the abstracts or statements. As the appellant here declared in his pleadings on the written agreement of sale as the foundation of his title, the rule excludes any evidence of a parol sale of the property, and compels the appellant to establish the existence of the written contract set forth in his statement of title. As suggested above, it would not have established title in the appellant if he had been allowed to show, as alleged in his abstract, that he had taken possession and made improvements, if he were not permitted to prove that it was in pursuance of a sale. The pleadings preventing him from proving a parol sale under which he admits he must claim title, if at all, he failed on the trial to show title in himself of the premises as a defense to the action, and the learned court below was right in directing a verdict for the appellee.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Woodward v. Crawford, Appellant.
    Argued Oct. 26, 1904.
    Appeal, No. 55, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1902, No. 667, on verdict for plaintiff in case of M. A. Woodward v. J. A. Crawford.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    December 31, 1904:
   Opinion by

Mr. Justice Mestrezat,

For the reasons given in the opinion filed this day in Wescott v. Crawford, No. 56, October Term, 1904, ante p. 256. The judgment is affirmed.


author: Mb. Justice Dean, Me. Justice Mestbezat,

text:
    Boulfrois v. United Traction Company, Appellant.

      Negligence—Street railways—Getting on and off electric cars—Contributory negligence.

    To get on or off a moving car whether propelled by steam or electricity is negligence per se in him who attempts it.
    If a person attempting to get on a moving electric car, succeeds in the attempt and is safely on, but is then thrown off by the act of the motorman in suddenly and violently starting the car with a jerk, the company is liable, although the original attempt of the passenger was, negligent; but if the sudden jerk of the car takes place when the attempt to get on is not completed, and the passenger has not reached a position of safety, the company is not liable.
    Mestrezat, J., dissents.
    Argued Oct. 24, 1904.
    Appeals, Nos. 49 and 50, Oct. T., 1904, by defendant, from judgment of C. P. No. 3, Allegheny Co., Noy. T., 1901, No. 275, on verdict for plaintiff in case of Armand Boulfrois, Sr., and Armand Boulfrois, Jr., by his next friend, Armand Boulfrois, Sr., v. United Traction Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    r Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    At the trial it appeared that Armand Boulfrois, Jr., was injured while in the act of getting on a moving electric summer car. Plaintiff claimed that he had actually reached the running board of the car when he was immediately thrown therefrom by a sudden jerk of the car, and his foot was injured, and subsequently amputated.
    The defendant presented these points :
    1. That under the pleadings in this case the plaintiffs are not entitled to recover. Answer: Refused. [1]
    2. That under the evidence in this case the plaintiffs are not entitled to recover. Answer : Refused. [2]
    3. The evidence showing that Armand Boulfrois, Jr., being upwards of fourteen years of age, attempted to board a street car while in motion, he is prima facie guilty of contributory negligence, and the burden of proof is upon him to establish by the wpight of the evidence that he successfully boarded the car, ancjuf the jury find from all the evidence in the case that the said Armand Boulfrois, Jr., sustained injuries in the attempt to board the car while in motion, by reason of the motion of the car, the verdict of the jury should be in favor of the defendant. Answer: Affirmed, with a qualification.
    This point is affirmed, unless you' find, as I have stated, that the motion of the car was such as to induce plaintiff to believe that it was about to stop, or at least the motion was such that he, or any reasonable person, would be induced to believe that he could get on with safety."l Now, he alleges, not only that the motion had been so reducecq not only that it was sufficient to induce Mm to believe that he could get on in safety, but that he actually did get on in safety, and would have reached his seat in the car but for the sudden and violent jerk with which it was started, or with which its speed was increased, and that jerk, followed by a second one, threw him off. That is the contention of the plaintiff, and that is, as I have stated, the negligence of which he complains, and if you find that to be the case he is entitled to recover. But if be merely, without signaling the car to stop, and while it was in motion, attempted to board it, and the accident occurred through that action on his part, he is not entitled to recover. But ordinarily the rule of law is that where a person attempts to board a car in motion, he is guilty of negligence in so doing. As it has been explained to you, if that motion had come down to such a slow rate of speed that.he was reasonably induced to believe it would either stop, or that it Avas at such a rate of speed that he could board it with entire safety, and, as he states himself in this case he did board it in safety, and the accident resulted from the violent starting of the car, then the company is liable. [3]
    The court charged in part as follows : [It was the duty of the motorman in charge of the car not only to slow up, but to actually stop, if the passenger had signaled him to do soit Avas his duty to stop and give the boy time sufficient to enable him to board the car in safety and take his seat. If the motorman did not do so, then he was guilty of negligence and the company is liable for this accident.] [4]
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

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

      William A. Challener, with him Clarence Burleigh and James C. Gray, for appellant,
    cited : Powelson v. United Traction Co., 204 Pa. 474; Hunterson v. Traction Co., 205 Pa. 568; Bainbridge v. Traction Co., 206 Pa. 71.

      B. A. Balph, with him James Balph, for appellee.
    December 31, 1904:
   Opinion by

Mb. Justice Dean,

We desire it to be distinctly understood that in Powelson, v. United Traction Co., 204 Pa. 474 ; Hunterson v. Traction Co., 205 Pa. 568 and Bainbridge v. Traction Co., 206 Pa. 71, we had no intention of relaxing the well-established rule, “ That to get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it.” To this rule, as in all rules, we further said there are some rare exceptions, as in Johnson v. West Chester, etc., Railroad Co., 70 Pa. 357, and Penna. Railroad Co. v. Peters, 116 Pa. 206, and a very few others, which because of their peculiar facts are exceptional. From the whole evidence in this case, it did not necessarily and certainly follow that Armand Boulfrois, Jr., the injured person, was either negligent or not negligent. If the car had not stopped when he attempted to get on, and by that attempt he was injured, he was negligent and cannot recover ; if it either had, or had not stopped and he was safely on, then if the conductor, by suddenly and recklessly turning on the power gave the car a jerk which threw the boy off, it was the conductor’s negligence that caused the injury and he can recover. If the boy’s attempt to get on was not complete, if he was still engaged in the attempt, when the car was jerked, the inceptional act of negligence when he stepped from the ground onto a moving car, still continued and he cannot recover. If he was negligent in getting on, as from his own testimony he was, then when safely on before he had time to get seated, the conductor by suddenly turning on the power jerked him off, it was the conductor’s negligence which caused the injury and defendant is answerable.

Was the act of getting on complete, when the jerk threw him off, if it did throw him off ? If it was complete then the company’s negligence caused the accident, just as clearly as if some other passenger, on his feet looking for a seat, was thrown violently to the floor or thrown off by a sudden jerk of the car by a reckless conductor. The boy’s good luck in reaching the running board in safety did not condone the negligent act of getting on, if he was not yet safely on when thrown off. We have tried to make our meaning plain; if we have failed it is either because our obtuseness of perception or poverty of language fails to make plain to others what is plain to us. The learned counsel for appellee seems to have misapprehended our ruling in the Powelson and other cases cited, for in his argument he uses this language :

“We still understand this court to adhere to the well-established rule that whenever the standard of duty shifts, not according to any fixed rule but with the facts and circumstances developed at the trial, the question of negligence cannot be determined by the court but must be submitted to the jury.”

That is not the law applicable to this evidence; as applicable to the facts here the law is correctly embodied in defendant’s third written prayer for instruction at the trial as follows :

“ Third. The evidence showing that Armand Boulfrois, Jr., being upwards of fourteen years of age, attempted to board a street car while in motion, he is prima facie guilty of contributory negligence, and the burden of proof is upon him to establish by the weight of the evidence that he successfully boarded the ear, and if the jury find from all the evidence in the case, that the said Armand Boulfrois, Jr., sustained injuries in the attempt to board the ear while in motion, by reason of the motion of the car, the verdict of the jury should be in favor of defendant. Answer: Affirmed, with a qualification.”

The substance of the qualification appears in the general charge thus: “ This point is affirmed unless you find as I have stated, that the motion of the car was such as to induce the plaintiff to believe that it was about to stop, or at least the motion was such, that he or any reasonable person would be induced to believe that he could get on with safety.” The court then went on and elaborated further this qualification, but in no manner detracted from its significance as we have quoted it. It was, in substance, a denial of the point, and in effect adopting as the law the argument of appellees’ counsel already quoted that the standard of duty, as to one who gets on or off a moving car shifts, not according to any fixed rule, but with the facts and circumstances. To this we say that as to one who gets on or off a moving car and is injured by so doing the standard does not shift; he is negligent per se. But if he escaped injury by that act of his own, yet subsequently, no matter how short the time, from his own first act, by the distinct act of negligence on the part of the conductor he was injured, he can recover. The evidence showed without question that plaintiff attempted to get on a moving car; can it be reasonably said, in view of all the testimony, that he was safely on when he was jerked off by the act of the conductor ?

It was error to affirm with a qualification which neutralized it appellant’s third point. This is the only error requiring notice. The judgment is reversed and a venire facias de novo is awarded.

Me. Justice Mestbezat,

dissenting:

For the reasons stated in the dissenting opinion in Hunterson v. Traction Co., 205 Pa. 568, I cannot concur with the majority of the court in holding “ that to get on or off a moving car, whether propelled by steam or electricity, is negligence per se in him who attempts it,” and, therefore, I dissent from the judgment reversing the court below.