text:
    Commonwealth to use, Appellant, v. Scranton.

      Public officers — Bonds—Commissions on liquor license fees — County treasurer — Actions.
    No suit can be brought by a city in the name of the commonwealth to the city’s use, on a bond given by a county treasurer for the protection of the commonwealth, where the object of the suit is to recover from the county treasurer commissions on liquor license fees, which are the property of the city.
    Argued Feb. 21, 1906.
    Appeal, No. 24, Jan. T., 1906, by plaintiff, from judgment off C. P. Lackawanna Co., Jan. T., 1905, No. 17, on case tried by the court without a jury in suit of Commonwealth to use of City- of Scranton v. Joseph A. Scranton and Fidelity and Deposit Company of Maryland.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a bond. Before Edwards, P. J. •
    The facts are stated in the opinion of the Supreme Court.
    The case was tried by the court without a jury.

      Error assigned wag in entering judgment for defendant.

      I. H. Burns, with him David J. Davis, city solicitor, and H. R. Van Deusen, assistant city solicitor, for appellant.

      Samuel B. Price, for appellee.
    April 9, 1906:
   Opinion by

Mr. Justice Elkin,

Joseph A. Scranton, one of the defendants in this case, served as treasurer of the county of Lackawanna for the years 1901, 1902 and 1903. This action is brought to recover from him certain moneys retained as commissions for the collectio'n of liquor license moneys during his term of office. The action is brought not on the bond given to the county, but on the general bond to the commonwealth. For the reasons given in the case of Commonwealth v. Schadt et al., ante, p. 592, there can be no recovery in this case.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Little, Appellant, v. Wyoming County.

      Change of venue — County as party — Local prejudice — Oath of party — Act of March 30, 1875, P. L. 35.
    The power to change the venue in civil cases is vested in the courts by the constitution, but the causes for which and the manner in which they must be exercised are entirely under legislative control. When the legislature has enacted and provided the causes and the mode of procedure, it is the duty of the court to comply strictly with the statutory provisions in determining the right of the applicant to have his case tried in another jurisdiction.
    Under the first section of the Act of March 30, 1875, P. L. 35, the question is not whether the grounds or reasons assigned are sufficient to warrant a change of venue in the opinion or judgment of the court, but whether the applicant has brought himself within any of the causes for which the legislature has determined a change shall be made. If he has, the court is required to grant the application regardless of the opinion it may entertain as to the propriety of doing so.
    Where a county is a party to a suit and it appears by the affidavit of the other party that local prejudice exists and that a fair trial cannot be had in the county, it is mandatory on the court to change the venue.
    Argued Feb. 20, 1906.
    Appeal, No. 383, Jan. T., 1905, by plaintiff, from order of G. P. Wyoming Co., Oct. T., 1903, No. 68, discharging rule for change of venue in case of C. B. Little, Administrator of O. A. Little, v. Wyoming County.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Rule for change of venue. Before Terry, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the order discharging the rule.

      Ernest K. Little, with him C. O. Dersheimer and W. E. Little, for appellant.
    The act is mandatory: Willoughby v. Railway Co., 203 Pa. 243.
    H. S. Harding, with him J. Wood Piatt, county solicitor, for appellee,
    cited: Newlin’s Petition, 123 Pa. 541; Philadelphia v. Pass. Ry. Co., 143 Pa. 444; Brittain v. Monroe County, 31 Pa. C. C. Rep. 161.

      April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

Article III, section 23 of the constitution provides that: “ The power to change the venue in civil and criminal cases shall be vested in the courts, to be exercised in such manner as shall be provided by law.” By virtue of the authority thus conferred, the legislature passed the Act of March 30, 1875, P. L. 35, 2 Purd. 2068, providing the manner in which a change of venue in civil cases may be made by the courts. The first section of the act provides that “ changes of venue shall be made in any civil cause in law or equity: ” (1) When the judge shall be personally interested in the event of the cause or in the question to be determined thereby; (2) when the title under which the parties, or either of them, claim shall have been derived from or through such judge, and he shall be liable thereunder, or whenever he shall hold under the same title with- either of the parties in the cause; (3) when any near relative of the judge shall be a party to the cause or interested in the event thereof unless the judge shall select another judge, disinterested and not so related, to try the cause; (4) “whenever the county in which such cause is pending or any municipality therein, or the officials of any such county or municipality, are parties thereto, and it shall appear, by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county; ” (5) “ whenever a large number of the inhabitants of the county in which such cause is pending, have an interest in the question involved therein, adverse to the applicant, and it shall appear, by the oath of such applicant, that he believes he cannot have a fair and impartial trial.” The second section of the act provides the manner in which the application shall be made, heard and determined. The applicant must apply to the court, or a judge in vacation, by petition setting forth the cause of the application “ which shall be accompanied by his affidavit of the truth of the facts alleged therein, and that the said application is not made for the purpose of delay.” After notice to the opposite party or his attorney, “ the said court or judge shall, if satisfied of the truth of the facts alleged, award a change of venue.”

The third section of the act provides that “ changes of venue may be made in any civil cause in law or equity: ” (1) When it shall appear to the satisfaction of the court that any party to such cause has an undue influence over the minds of the inhabitants of the county or that they are prejudiced against the applicant, so that a fair and impartial trial cannot be had; (2) when, in any plea of land two juries of the county have failed to agree and have been discharged without rendering a verdict ; (3) when it shall be made to appear to the court that a fair and impartial trial cannot be had in the county in which the cause is depending. Applications under this section must be made to the court in term time in the manner provided in the second section of the act, and after notice to the opposite party or his attorney, the court is required to hear the parties by counsel and affidavits, if necessary, and may grant or refuse the application in its discretion. '

The seventh section of the act repeals all former legislation on the subject.

It will be observed that the first section-.of the act is mandatory and consequently when a party has satisfied the court or the judge of the existence of any of the causes enumerated in the section, he is entitled to have an order changing the ven ue. When, however, the application is made for any of the causes set out in the third section of the act, the granting of the change is discretionary with the court. In the language of the section, the court “ may refuse or award such change of venue as in its discretion it shall see fit.”

The present application was made under the-fourth paragraph of the first section of the act. The petition avers that the county of Wyoming is the defendant in the action and that local prejudice exists as to the said action and that a fair trial cannot be had in the county. An affidavit is attached to the petition in which the applicant swears “ that the matters above set forth are true and correct and that this application is not made for the purpose of delay.” The application is in form substantially a compliance with the act, but it is better practice to confine the petition to an averment of the necessary facts and to include in the affidavit what the act requires it to contain. The county commissioners resisted the application and filed an answer denying “ that there is any such local prejudice existing in the said county, as represented by plaintiff, whereby the said plaintiff could not have a fair and impartial trial in the said county, and that therefore the said plaintiff is not entitled to the change of venue as prayed for in the said petition.” On this question, raised by the answer, both parties took depositions. The learned court below heard and determined the application on the petition, answer and depositions. It held the allegation in the petition “ that a local prejudice exists as to the said action and that a fair trial thereof cannot be had in the said county ” to be a jurisdictional fact, and that it must be proved to the satisfaction of the court to entitle the applicant to a change of venue under this paragraph of the first section of the act.

The power to change the venue in civil cases, as observed above, is vested in the courts by the constitution, but the causes for which, and the manner in which, it must be .exercised are entirely under legislative control. When, therefore, the legislature has enacted and provided the causes and the mode of procedure, it is the duty of the court to comply strictly with the statutory provisions in determining the right of the applicant to have his case tried in another jurisdiction. It may be that in considering such applications the method which the court would adopt and the causes it would hold as sufficient would be equally effective in promoting the ends of justice. But the answer to that proposition is that the authority to determine the question is not in the court but, by a constitutional provision, belongs exclusively to the legislative department of the government. The question in every case under the first section of the act is, therefore, not whether the grounds or reasons assigned are sufficient to warrant a change of venue in the opinion or judgment of the court, but whether the applicant has brought himself within any of the causes for which the legislature lias determined a change shall be made. If he has, the court is required to grant the application regardless of the opinion it may entertain as to the propriety of doing it.

This application, as we have seen, is made under the fourth paragraph of the first section of the act. It is averred in the petition that the defendant is a county of the state, and it appears by the affidavit of the petitioner that local prejudice exists and that a fair trial cannot be had in the county. By referring to thé paragraph of the section, quoted above, it will be seen that these are the only facts of which the court must be satisfied to entitle the applicant to a Change of venue under the paragraph. The answer of the defendant does not deny that it 'is a county and consequently no testimony was necessary to aid the court in determining the fact. But the answer denies that there is any local prejudice that will prevent the plaintiff from having a fair trial in the county. How is that fact to be established ? The paragraph points out the only way, and that is, in the language of the act, “ by the oath of the party desiring such change of venue.” The venue must be changed when a county is a party “ and it shall appear, by the oath of the party desiring such change of venue, that local prejudice exists, and that a fair trial cannot be had in such county.” It is the duty of the court, therefore, not to ascertain or determine the fact that local prejudice exists, but that it appears by the oath of the applicant. This is the language of the statute, and it is so plain that it cannot be misunderstood.

The learned court below says, however, that this interpretation ignores the provision of the second section of the act requiring the court to be “satisfied of the truth of the facts alleged.” But in this the court is clearly in error. Before granting the change of venue, the second section requires the court to be satisfied of the truth of the facts alleged in the application which, of course, must contain the facts or causes enumerated in one or more of the five paragraphs in the first section of the act. We have stated the cause permitting the change contained in each paragraph. In the fourth paragraph, as applicable to this case, there are but two facts to be determined by the court: (a) That the county is a party, and (5) that it appears by the oath of the party that local, prejudice exists. These are “ the facts alleged ” which the paragraph requires the court to be satisfied of before it grants the change. If the paragraph had omitted the words “ by the oath of the party desiring such change of venue,” it would have read: “ and it shall appear that local prejudice exists, and that a fair trial cannot be had in such county ”; and it then would have been the duty of the court under that paragraph to have determined whether local prejudice existed against the applicant. The legislature, however, did not intend to leave that fact to be found by the court, but enacted that it should appear by the oath of the party. When the court finds that it does so appear, it has performed the duty required of it under the second section of the act.

*The learned trial judge says in his opinion that “ no affidavit was required in this ease to inform the court who the parties are, because that information appears by the record, of which the court takes judicial notice.” That was, however, a jurisdictional fact which the court had to find before it- could grant the application. That it appeared by the record did not relieve the court from the statutory duty of ascertaining the fact. In the same way, an inspection of the affidavit filed by the applicant would show that such an affidavit had been made and that it appeared from that affidavit that local prejudice did exist against the applicant. Both facts should be determined by the court on an inspection of the record and the papers filed in the case. They are, however, jurisdictional facts which must be found by the court and which, when found, give the applicant the right to a change of venue.

It is claimed by the appellee that the construction of the act of 1875 by the court below is in accord with Newlin’s Petition, 123 Pa. 541, and Philadelphia v. Ridge Ave. Pass. Ry. Co., 143 Pa. 444. This contention, however, overlooks the facts of those cases and, consequently, what was decided. In the former case, Newlin applied to this court for a mandamus to compel the court below, after it had refused the application, to grant a change of venue. Says Williams, J., in delivering the opinion of this court (p. 544) : “ What is complained of in this case is not that the judge did not hear, but that, having heard, he decided in a manner which the plaintiff thinks was wrong; and he asks us to review and correct the conclusions of the learned judge upon a writ of mandamus. This we cannot do, and for this reason, the motion for the writ is refused.” In the other case, the distinction between the duties of the trial court in the two classes of cases provided for in the first and third sections of the act was not adverted to, nor considered by counsel or the court. This is apparent from the opinion filed in the' case. The case was properly decided under the third section of the act which, as we have seen, authorized the court to refuse or award such change of venue as in iis discretion it shall see fit.” Under this section of the act a change of venue is entirely discretionary with the court and may be granted only when the facts “ shall appear to the satisfaction of the court.” Willoughby v. Buffalo, Rochester & Pittsburg Ry. Co., 203 Pa. 243, was the first case in which the distinction between the two classes of applications under the act of 1875 was referred to and the practice pointed out. What is there said applies here, and rules this case.

It appearing that the applicant for the change of venue had brought himself within the provisions of the fourth paragraph of section one of the act of assembly, the order discharging the rule and refusing a change of venue is reversed and the court "below is directed to enter an order making the change of venue as prayed for.


author: Mr. Justice Potter,

text:
    Schwab v. Edge, Appellant
    (No. 1).

      Estoppel — Injury—Evidence.
    In order to create an estoppel in pais the party pleading it must not only have been misled, but he must also have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect.
    Where a purchaser of real estate at a sheriff’s sale avers that he was induced to buy the property by a statement made to him by a mortgagee of the property that the lien of the mortgage had been released, he cannot establish an estoppel against the mortgagee unless he shows by evidence of a clear and convincing character not only that the statement averred was made to him, but also that he sustained a loss by relying upon it.
    Argued Jan. 19, 1906.
    Appeal, No. 311, Jan. T., 1905, by John J. McDevitt, Jr., from order of C. P. No. 3, Phila. Co., March T., 1903, No. 3,970, discharging rule to set aside execution in case of Gustav A. Schwab v. J. Bachelor Edge and Ida Mae Edge, his wife, and John J. McDevitt, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to set aside execution. Before von Moschizisker, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order discharging rule to set aside execution.

      Chester N. Farr, for appellant.
    Where the declarations of a party have encouraged expenditures in a third person, the party making these declarations is estopped from making a claim against the the third person at variance with such declarations, even though they were made innocently and in good faith: Logan v. Gardner, 136 Pa. 588; Hill v. Epley, 31 Pa. 331; Gray’s App., 10 W. N. C. 458; Miller’s App., 84 Pa. 391.

      M. Hampton Todd, for appellee,
    cited: Woods v. Wilson, 37 Pa. 379: Bright v. Allan, 203 Pa. 394.
    April 9, 1906:
   Opinion by

Mr. Justice Potter,

In this case two appeals which raise the same question, one from the court of common pleas No. 1, and the other from the court of common pleas No. 3 of Philadelphia county, were argued together. The first appeal is from an order made in an action of scire facias sur mortgage, discharging a rule to show cause why the judgment' should not be satisfied as to certain properties, and the execution issued thereon set aside; and the second is from a similar order, as to an execution issued upon a judgment, entered upon the bond accompanying the mortgage on which the first suit was brought.

The bond and mortgage were given by Edge and his wife, to Gustav A. Schwab, to secure the sum of $4,000. Judgment was entered on the bond, damages assessed and execution issued. On the same day a sci. fa. was issued on the mortgage, and duly served on the mortgagors, and upon Ida Mae Edge as the registered and real owner of the mortgaged premises. Mrs. Edge filed two affidavits of defense, neither of which was sufficient to prevent judgment from being entered against her for want of a sufficient affidavit of defense; judgment having been already taken against her husband, for want of an affidavit of defense. A writ of levari facias, and an alias were issued on the judgment, but both were stayed. A rule to open the judgment on the mortgage was afterwards allowed on petition of Ida Mae Edge, but was subsequently withdrawn. On the same date a rule to open the judgment on the bond was also allowed on petition of the same defendant, and this rule was discharged after hearing on depositions. A petition which recited the sale and other proceedings, was filed on August 3, 1905, by John J. McDevitt, Jr., in tbe court of common pleas No. 3, under the number and term of the judgment on the bond. In this petition he averred that at a sheriff’s sale in September, 1904, he had purchased certain properties sold as the properties of the defendants in said judgment; that at that time and at various times subsequent thereto the plaintiff had represented to him that the remaining properties, then belonging to the defendants, and including the properties now alleged to belong to the petitioner, had been released from the lien of plaintiff’s judgment, and that assuming and believing said representations to be true, the petitioner had acquired title to said properties; but that notwithstanding the representations made by the plaintiff, he had caused execution to be issued against the said properties without notice to the petitioner. On the presentation of the petition, the court below granted a rule to show cause why the executions should not be set aside and stayed, as to the properties in question. Plaintiff filed an answer to the rule, denying that he had made the representations alleged by the petitioner, and averring that he had given notice of his intention to issue execution three months before the writ went out. Depositions were taken on behalf of tbe petitioner, and after hearing, the court, on October 25, 1905, discharged his rule. From this order the present appeal was taken by the petitioner. On October 16, 1905, a similar rule was granted by court of common pleas No. 1, upon application of the same petitioner, in the suit upon the mortgage, and on October 25, that rule was discharged, and the petitioner has appealed from that order, also.

The assignments of error allege that the court below erred in discharging the rules to set aside the executions and satisfy the judgments as to the properties purchased by appellant. It appears from the evidence offered upon the part of the appellant in support of his petition, that the representation made to him by appellee was that the latter’s mortgag’e “ was wiped out by the sale,” and that the $4,000 claim which he held, “ both as to the bond and mortgage, had been satisfied by the sale.” That appellee also said to him that he (appellant) wanted (ought) to get hold of the adjoining properties, and appellant replied that he probably would. He afterwards took title to these properties under the belief, as he said, that appellee’s statement that the mortgage had been satisfied by the sale was true. There was also evidence that appellee said to Mr. Edge that he had taken out searches, and his judgment was satisfied, and if appellant made settlement for the properties purchased at sheriff’s sale, if the amount should run short, appellee would see that the claim was satisfied. These statements were alleged to have been communicated to appellant by Mr. Edge at the express request of the appellee. The appellant did negotiate with Mr. Edge for the other properties and took title to them. It does appear, however, from the testimony that Mrs. Edge still claims an interest in the properties.

Under the well established principles which govern the doctrine of equitable estoppel, it would seem that the representations made by the appellee were sufficient to estop him from asserting his right to collect the balance of his claim against the property in question, if appellant has shown that he was misled by such representations to his serious loss and injury. To establish his right to the relief prayed for, it was necessary for appellant to satisfy the court, not only that he had relied on appellee’s statements, but that he had been substantially injured by so doing. “ It is not enough that the representation has been barely acted upon; if still no substantial prejudice would result by admitting the party who made it to contradict it, he will not be estopped : ” Bigelow on Estoppel, 644. “ In order to create an estoppel in pais the party pleading it must have been misled to his injury ; that is, he must have suffered a loss of a substantial character or have been induced to alter his position for the worse in some material respect: ” 16 Cyc. of Law and Procedure, 744. As Justice Lewis said, in Bitting’s App., 17 Pa. 211 (216): “ Estoppels in pais are ‘ founded in law, honor and conscience,’ when confined to their legitimate purposes of preventing one man from being injured by the wrongful act or misrepresentation of another. But where no injury results from a misrepresentation, its discussion belongs to the forum of morals and not to the judicial tribunals.” .

It does not appear from the evidence what consideration was given by appellant for the conveyance of the property from Edge. He testified that the consideration was a nominal one, and that certain advances or loans which he had previously made to Edge were taken into consideration, and that the properties were encumbered pretty well up to their value. It is true that accepting title to the property, in payment of prior loans, might constitute sufficient consideration to entitle appellant to protection by way of estoppel, against the appellee, but the evidence of appellant is very vague and indefinite, as to the amounts of the loans, and as to the times when they were made. He said that he could not tell the exact amount of money which he had paid, and when asked to furnish a statement he failed to do so. After the testimony was closed appellant returned to the stand, and stated in a general way that he had expended several thousand dollars on the properties conveyed to him by the Edges, since he had purchased them. But even as to this, he was unable to give any details, and did not state when or how the money had been laid out. The conveyance to him was made in December, the settlement with the sheriff was in February, and on March 6, appellee gave him notice that he claimed the balance due on his mortgage. Any expenditure made after this date, could not of course have been upon the faith of the representations made by appellee. We do not feel that the evidence offered in support of the petition, is of that clear and convincing character, which should be adduced in order to move the conscience of a chancellor.

Nor does the case for appellant appear in any stronger light, when the question of good faith is considered. Appellee gave notice by his letter of March 6, that he claimed a balance due on the mortgage. But instead of setting up at once his claim to an estoppel, and relying upon it, appellant delayed until a rule to open rthe judgment had been tried and failed; Then after execution issued this rule was taken. Considered as a whole, the evidence offered by appellant in support of the rulé was so vague and indefinite that it hardly called for answer by the appellee. Specific amounts, dates and names were lacking, and no circumstances were given which would reasonably permit of investigation. Under such evidence as this, it would hardly be expected that a chancellor should feel moved to grant relief. The averments in the petition of appellant were, perhaps, sufficient to authorize the application of the doctrine of estoppel in pais, but the evidence did not sufficiently support the allegations, “ Before estoppel can be raised there must be certainty to every intent and the facts alleged to constitute it are not to be taken by argument or inference: ” 16 Cyc. of Law and Procedure, 748. In Com. v. Moltz, 10 Pa. 527, Justice Bell said (p. 532) : “ He who avers an estoppel, either by pleading or evidence, must establish by proofs, positive or circumstantial, every fact that essentially enters into the character of such a reply to the plaintiff’s suit.” And again, in Cambria Iron Co. v. Tomb, 48 Pa. 387, this court, speaking by Justice Acnew, said (p. 393) : “ Estoppel shuts the mouth and prevents it from asserting the truth, but from the nature of this legal effect, and the principles upon which equity acts, the proof of the fact- which has this legal operation must be full and convincing.” And in 2 Herman on Estoppel, sec. 742, we find this clear statement of the rule: “ The facts upon which equitable estoppels depend, as a general rule, are proved by oral evidence; and this evidence should be precise, clear and unequivocal, before it should be admitted to estop the party from showing the proof, especially affecting the title to land.”

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


text:
    Schwab v. Edge, Appellant
    (No. 2).
    Argued Jan. 19, 1906.
    Appeal, No. 310, Jan. T., 1905, by John J. MeDevitt, Jr., from order of C. P. No. 1, Phila. Co., March T., 1903, No. 3,670, discharging rule to set aside execution in case of Gustav A. Schwab v. J. Bachelor Edge and Ida Mae Edge, his wife, and John J. MeDevitt, Jr.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    April 9, 1906:
   Opinion by

Mr. Justice Potter,

The opinion we have just filed in the appeal, Schwab v. Edge, ante, p. 596, disposes of the question involved in this case.

The assignment of error is overruled, and the judgment is affirmed.


text:
    Rinker, Appellant, v. Ætna Life Insurance Company of Hartford.

      Insurance — Life insurance — Application—Truth of answers.

    In an action upon a policy of life insurance it appeared that the application signed by the insured contained an answer of “no” to a question as to whether the insured ever had a severe surgical operation. The application contained a warranty of the truth of the answers, and further provided that “no statement or declaration made to any agent, examiner or other person, and not contained in this application, shall be taken or considered as having been made to or brought to the notice or knowledge of said company, or as charging it with any liability by reason, thereof.” At the trial it appeared that the insured had prior to the date of the policy undergone a severe surgical operation. The plaintiff offered to show that at the time the insured made the application the agent filled out the answers, and asked the applicant to sign the paper which she did without reading, and that the ■witness heard the applicant state to the agent that she had undergone an operation. Held, that the court committed no error in overruling the offer.
    Argued Feb. 19, 1906.
    Appeal, No. 176, Jan. T., 1905, by plaintiff, from judgment of C. P. Lackawanna Co. Jan. T., 1897, No. 943, on verdict for defendant in case of Franklin S. Rinker v. The iEtna Life Insurance Company of Hartford, Connecticut.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit on a policy of life insurance.
    The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      JErrors assigned were (1-3) rejection of testimony quoted in the opinion of the Supreme Court; (4) in directing a verdict for the defendant.

      J. W. Carpenter, with him G. M. Watson, for appellant.
    This court has repeatedly held that in a suit upon an insurance policy in which the answers in the application are warranties, it is competent to show that a truthful answer was in fact given, but that the agent either intentionally, negligently or fraudulently wrote it down erroneously, and that the insured, resting in the belief that his answer as given was correctly

      written by the agent, signed the application in good faith: Smith v. Ins. Co., 89 Pa. 287; Eilenberger v. Ins. Co., 89 Pa. 464; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157; Meyers v. Lebanon Mut. Ins. Co., 156 Pa. 420; Dowling v. Ins. Co., 168 Pa. 234; Mullen v. Ins. Co., 182 Pa. 150; Ins. Co. v. Huntzinger, 98 Pa. 41; American Life Ins. Co. v. Mahone, 88 U. S. 152.

      Everett Warren, of Willard, Warren & Knapp, for appellee.
    Parol evidence is inadmissible to reform a written contract, according to the intention of the parties, unless the declaration specially sets forth the fraud as a ground for such reformation: Renshaw v. Gans, 7 Pa. 117; Clark v. Partridge, 2 Pa. 13; Hunter v. McHose, 100 Pa. 38; Merriman v. Bush, 116 Pa. 276; Wodock v. Robinson, 148 Pa. 503; Liverpool, etc., Globe Ins. Co. v. Morris, 17 Ins. Law Jour. 761; Guerin v. Ins. Co., 44 Minn. 20 (46 N. W. Repr. 138); O’Donnell v. Ins. Co., 73 Michigan, 1 (41 N. W. Repr. 95).
    The testimony contained.in the offers was inadmissible under any state of pleadings: Union Mut. Ins. Co. v. Wilkinson, 80 U. S. 222; Smith v. Insurance Co., 89 Pa. 287; Eilenberger v. Ins. Co., 89 Pa. 464; Susquehanna Mut. Fire Ins. Co. v. Cusick, 109 Pa. 157; Meyers v. Lebanon Mut. Ins. Co., 156 Pa. 420; Dowling v. Ins. Co., 168 Pa. 234; Mullen v. Ins. Co., 182 Pa. 150; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 348; Pottsville Mutual Fire Fire Ins. Co. v. Horan, 11 W. N. C. 199; Pottsville Mut. Fire Ins. Co. v. Fromm, 100 Pa. 347; Susquehanna Mutual Fire Ins. Co. v. Swank, 102 Pa. 17; Cooper v. Farmers’ Mut. Fire Ins. Co., 50 Pa. 299; Meyer-Bruns v. Ins. Co., 189 Pa. 579.
    April 9, 1906:
   Opinion by

Mr. Justice Potter,

This was an action to recover the amount of a policy of life insurance issued by the defendant company to Elizabeth M. Rinker, for the sum of $2,000 payable to the plaintiff as beneficiary. A copy of the policy was attached and made a part of the declaration, and, as a part of the policy, there appears a copy of the application for insurance in which all the statements therein contained are warranted to be true. In the application certain questions appear with the answers made thereto by the applicant, among them being question 22: “ Haye you ever met with any severe personal injury or been subjected to any severe surgical operation, or have you any material defect of eyesight or hearing? If so, state the particulars.” The answer was, “ No.” Upon the trial, after the plaintiff had formally made out a case, evidence was offered on the part of the defendant tending to show that the answer thus made to question 22 was untrue, and that, as a matter of fact, some time before the application was made, the insured had undergone a very severe surgical operation. That this was the truth was uncontroverted, but in rebuttal the plaintiff offered to show that the insured had not really answered the question as was indicated on the application, but that the agent had set down a written answer thereto without the knowledge of the insured. This offer of evidence was overruled by the trial judge, because it was at variance with the allegations of the statement of claim. It appears from the application, which was signed by the applicant, that she warranted the statements to be full, accurate and true, and she agreed that the declarations and warranties made and the answers to the questions, should be the basis, and form part of the contract between herself and the defendant company, and agreed “that if the same be in any respect untrue said policy shall be void.” And she further agreed in the application, “ that no statement or declaration made to any agent, examiner or other person, and not contained in this application, shall be taken or considered as having been made to or brought to the notice or knowledge of said company, or as charging it with any liability 'by reason thereof.”

Under the policy then, as it stands, the agreement was to insure the life of Elizabeth M. Riuker, upon condition that she had never undergone a severe surgical operation. Plaintiff made no averment in the statement that a mistake had been made in filling in the answers to the questions; but, on the trial, attempted by parol evidence to contradict and nullify what had been declared as verity in the statement of the cause of action. “ Parol evidence is inadmissible to reform a written contract, according to the intention of the parties, unless the declaration specially sets forth the fraud as a ground for such reformation: ” Renshaw v. Gans, 7 Pa. 117. And Justice Shabswood, in delivering the opinion of this court in Hunter v. McHose, 100 Pa. 38, reasserted the principle that in a suit upon a contract under seal, in order to prove a parol contemporaneous agreement as part of the contract, fraud or mistake in omitting such agreement from the terms of the contract, must be averred in the declaration. In the present case there was no averment either of fraud or mistake,' and defendant, therefore, had no notice that any such claim would be made. A general statement of the rule in such cases, which is amply supported by authority, is found in 4 Joyce on Insurance, par. 3,756: “if the declaration upon the policy is in the ordinary form, it is error to admit evidence that the defendant’s agent either by fraud or mistake inserted a clause in the policy different from that agreed upon.”

The first assignment of error complains of the rejection of the offer made by plaintiff to prove that the agent wrote down the answers of the applicant to the questions, and that, after finishing the writing, he asked her to sign the paper, which she did without reading it. This offer was properly rejected. There is no allegation that the applicant was blind or deaf or that she was unable to read. The statement simply is that she signed the paper without reading it. If she was incorrectly reported therein, it was then her own fault.

The rule laid down in Greenfield’s Estate, 14 Pa. 489, is perfectly good to-day. Chief Justice Gibson there said (p. 496) : if a party who can read “ will not read a deed put before him for execution ; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law.”

The second and third assignments also complain of the refusal of the court below of an offer to show that the agent filled out the answers and asked the applicant to sign the paper, which she did without reading, and, further, that the witness heard applicant state to the agent that she had undergone an operation.

Neither of these offers was admissible under the pleadings. Her application was in writing, was signed by her and it was the basis upon which the contract of insurance was issued. This suit was brought upon the policy and upon the application as part thereof, without any averment in the declaration that any fraud or mistake was committed in making out the application. If the evidence offered tended to prove anything, it would be fraud or misconduct on the part of the agent in inducing applicant to sign a statement contrary to the truth; but there is no such averment in the declaration. The application for the policy by its plain terms, brought to the assured distinct notice of a limitation upon the power and authority of the agent, in that it contained an explicit agreement that no statement or declaration made to any agent, examiner or any other person, and not contained in the application, should be considered as having been made to, or brought to the notice of the company, or as charging it with any liability by reason thereof. This case, therefore, differs in that respect, and is to be distinguished from the line of cases such as Smith v. Ins. Co., 89 Pa. 287; Ins. Co. v. Cusick, 109 Pa. 157, and Kister v. Ins. Co., 128 Pa. 553, cited by counsel for appellee, in none of which does it appear that notice was brought to the assured of the limitation upon the power of the agent, or that anything was done to put the assured on guard in this respect during the negotiations for the issue of the policy. In pointing out this distinction between cases in which the authority of the agent is not limited, or the notice of such limitation is not communicated to the person with whom he deals, and other cases where the limitation is brought to the notice of the assured, the supreme court of the United States in N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 519, said: “ Where such agents, not limited in their authority, undertake to prepare applications and take down answers, they will be deemed as acting for the companies. In such cases it may well be held that the description of the risk, though nominally proceeding from the assured, should be regarded as the act of the company. Nothing in these views has any bearing upon the present case. Here the power of the agent was limited, and notice of such limitation given by being embodied in the application, which the assured was required to make and sign, and which, as we have stated,he must be presumed to have read. He is, therefore, bound by its statements.”

In the case at bar when the agent was taking the application of the assured and was explaining the questions and the meaning of the terms used, he was very properly to be regarded for those purposes, as the representative of the company ; but if the evidence offered by the plaintiff is true, the agent must have attempted to commit a deliberate fraud upon the company. He knew that if correct answers were given to the questions, the applicant would not be considered a fit subject for insurance, and no policy would be issued. It was his duty not only' to write down truly the answers given by the applicant, bub also to make known to his principal any other facts material to the risk which might come to his knowledge. Therefore, if he was guilty of any such conduct as the offer of the plaintiff would tend to prove, he grossly violated his duty, and the effect of his action was to benefit the applicant at the expense of the company. But in perpetrating such a fraud, the agent would not be alone. The signing of the application made the assured a party to it, and when she signed it, she was bound to know what she was doing. Good faith required of her correct answers to the questions, and reasonable diligence to see ‘that the answers were correctly written. If it be assumed that the answers were falsified, as alleged, that fact would at once appear, when the policy was delivered to her, by the copy of the application attached to it. Inspection would have shown that a fraud had been committed, both upon her and the company, and it would have been her plain duty to make the fact known to the company. She had it within her power to prevent the fraud, as knowledge of it was within her reach. Neither she nor her beneficiary can be permitted to take the fruits of the misrepresentation.

The assignments of error are dismissed, and the judgment is affirmed.


author: Mr. Justice Elkin,

text:
    Good, Appellant, v. Grit Publishing Company.

      Practice, C. P. — Striking off action from record — Agreement of party.

    An action or writ can only be stricken off when irregular, defective, or improper. Thus it is error to strike from the record an action for libel because of an alleged agreement between the parties, where the defendant denies that any such agreement had been made.
    In an action of trespass for libel where the defendant files a petition for an order to strike off the action on the ground of an alleged agreement that such order should be made, and the plaintiff files an answer denying the existence of such an agreement, the answer must be taken as true until overcome by the testimony of two witnesses, or its equivalent.
    Argued March 12, 1906.
    Appeal, No. 345, Jan. T., 1905, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1903, No. 232, striking off an action for libel in case of O. W. Good v. Grit Publishing Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Rule to strike off action for libel.
    The opinion of the Supreme Court states the case.

      JError assigned was the order of the court.

      M. C. Rhone and A. G. Miller, with them James Scarlett and George B. Reimensnyder, for appellant.

      Seth T. McCormick, with him James B. Krause, for appellee.
    April 9, 1906:
   Opinion by

Mr. Justice Elkin,

This is an action of trespass for libel. A motion was made in the court below to strike the action from the record. A rule was granted, which was made absolute after hearing, and it was ordered that the case be marked discontinued and settled by agreement of the parties. From this order an appeal was taken. The court below based its right to strike the case from the record on the ground that defendant company alleged an agreement had been entered into with appellant to discontinue the case. The appellant denied that such an agreement had been made. This proceeding is somewhat unusual in character and would seem to deny appellant his constitutional right of a trial by jury. It is at variance with a late utterance of this court wherein it was held that an action or writ can only be stricken off when irregular, defective or improper: Bruner v. Finley, 211 Pa. 74. The appellee relies on Wilkins v. Burr, 6 Binn. 389, and Bach v. Burke, 141 Pa. 649. We are not convinced that these cases are authority for the order made in the present ease. In the latter case a rule was granted to show cause why an agreement to discontinue should not be enforced. No answer was filed. A sufficient consideration was shown by the testimony, and the agreement was acquiesced in by counsel. In the present case the rule was granted to show cause why the case should not be stricken from the record. An answer was filed denying the material allegations of the petition. No consideration was alleged and no sufficient consideration proven. Counsel of record did not know of the alleged agreement to discontinue. Under these circumstances, the rule of the cases above cited and relied on does not apply. In this connection it must not be overlooked that the ground upon which this court predicated its order to discontinue in the case of Bach v. Burke, supra, was that it fell “within the reason of that principle by which the courts compel the specific execution of agreements concerning suits depending before them.” In the case at bar the appellant in his answer denied that he made any agreement to settle or discontinue the action, or that he ever authorized any person to make such an agreement for him. He also' avers that it always was his intention to prosecute the action to final judgment. The answer denied specifically every allegation contained in the petition. To this answer no replication was filed. Under our rules of pleading the answer must be taken as true until overcome by the testimony of two witnesses or its equivalent: Kane v. Schuylkill Fire Insurance Co., 199 Pa. 198; Goggins v. Risley, 13 Pa. Superior Ct. 316; Hopkins v. Stoneroad, 21 Pa. Superior Ct. 168. The appellee did not overcome the responsive answer of appellant, and, therefore, on the facts the evidence is not sufficient to support the allegation, and the order of the court striking the case from the record was improvidently made.

Order reversed, and it is ordered that the action be reinstated in the court below so that appellant may proceed to have the matters in controversy determined by due process- of law.


author: Mr. Justice Brown,

text:
    Martin v. Niles-Bement-Pond Company, Appellant.

      Negligence — Master and servant — Unforeseen accident — Place of employment.

    An employer when charged with negligence after an accident has happened, is not to be deemed negligent for not having anticipated what no one else, under the circumstances, would have anticipated.
    That which has never happened before, and which is not of such a character that prudent men ought naturally to guard against its happening at all, cannot, when’ it does happen, furnish a good ground for a charge of negligence in not foreseeing its possible happening and guarding against what no one could have foreseen.
    In an action by an employee against .his employer to recover damages for personal injuries, it appeared that the accident happened when the plaintiff was engaged in erecting a scaffold. While engaged on work far above the level of the floor of the room in which the scaffold was placed, he knelt down and extended one of his legs backward until it came into contact with the revolving shaft, and his overalls were caught in a projecting set screw, and his leg was crushed. The revolving shaft was far above the reach of the employees generally, and plaintiff’s work had nothing to do in connection with it. Plaintiff testified that he did not know that the shaft was there and that it was too dark for him to see it. Held, that the evidence was insufficient to establish negligence on the part of the defendant.
    Argued Jan. 4,1906.
    Appeal, No. 135, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 1,021, on verdict for plaintiff in case of Charles Martin v. Niles-Bement-Pond Co.
    Before Mitchell, C. J., Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Davis, J.
    The facts are stated in the opinion of the Supreme Court.
    The court refused binding instructions for plaintiff.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      Frank P. Prichard, with him James W. Bayard, for appellant.
    There was no evidence of negligence on the part of defendant: Archibald v. Cygolf Shoe Co., 186 Mass. 213 (71 N. E. Repr. 315); Rooney v. Sewall & Day Cordage Co., 161 Mass. 153 (36 N. E. Repr. 789).

      Eugene Raymond, for appellee.
    Where the facts are disputed, where there is any reasonable doubt as to the inferences to be drawn from them, or when the measure of duty is ordinary and reasonable care and the degree varies according to the circumstances, the. question cannot in the nature of the case be considered by the court, it must be submitted to the jury: Reeves v. D., L. & W. R. R. Co., 30 Pa. 454; McCully v. Clarke, 40 Pa. 399; Gramlich v. Wurst, 86 Pa. 74; Schum v. Penna. R. R. Co., 107 Pa. 8; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Esher v. Mining Co., 28 Pa. Superior Ct. 387; Hickey v. Solid Steel Casting Co., 212 Pa. 255; Cohen v. P. & R. Ry. Co., 211 Pa. 227; Patterson v. Harrisburg Trust Co., 211 Pa. 173; Bartholomew v. Kemmerer, 211 Pa. 277; McCarthy v. P. & R. Ry. Co., 211 Pa. 193; Becker v. City of Phila., 212 Pa. 379; Gillard v. City of Chester, 212 Pa. 338.
    April 16, 1906:
   Opinion by

Mr. Justice Brown,

The Niles-Bement-Pond Company, a corporation, operated machine shops in the city of Philadelphia. Charles Martin, the appellee, was one of its employees, and had been in its service as a carpenter for about five months before he was injured on August 9, 1901. During this period, when the weather was pleasant, he worked outside of the buildings, and inside of them when it was unpleasant. On August 8, 1901,' he was directed to go into one of the shops with two other employees and erect a scaffold for the purpose of changing; at the west end of a room on the second floor, some timbers to which counter-shafting had been attached. The room into which he went was in a building on the north side of the plant. It was about sixty feet long, running from east to west, and about thirty feet wide from north to south. The power that operated the machinery in this building was transmitted from another building adjoining it on the south by a shaft that extended-through a hole in a brick partition wall. The shaft extended some distance across the room into which the appellee went. Joists about ten feet apart ran across the building from the top of one wall to the other, at the height of sixteen feet from the floor on the second story. There was no flooring over these joists and the roof of the building could be seen from the floor below. The shaft that extended from the building on the south across the building on the north was parallel to and between two of the joists, and was supported on a crosspiece resting between them. On this shaft there was a revolving pulley, and about eight or ten inches from the pulley and close to the cross-piece on which the shaft rested there was a collar with a projecting screw. This collar kept the shaft from Working off its support. On August 8, the appellee, as directed, built a long and high scaffold reaching from the floor of the second story to within about four feet of the joists and extending under the shaft. On August 9, he took down a counter-shaft at the end of the scaffold farthest from the shaft. He then walked along a board about eight inches wide, extending across the joists, until he reached one parallel to and exactly two feet from the shaft at the point where the pulley and collar were located. With his back to the shaft, he then knelt down on the joist to look for a mark made on it by a cutting tool to show where the new timbers were to be set. In doing this he extended one of his legs backward until it came into contact with the revolving shaft, and his overalls, according to his theory, which may be accepted as the true one, were caught in the projecting set screw and his leg was crushed, necessitating its subsequent amputation. For the injuries so sustained this suit was brought.

The jury were properly instructed that the defendant could not be found guilty of negligence simply because its shaft, up near the roof, sixteen feet above the floor, had on it a collar with a set-screw attachment. No negligence can be imputed to the defendant because it used this main shaft. Revolving up above and beyond the reach of the employees, it was a source of no danger to them.- They could all see it from the floor below where they were working, but, even with its setscrew attachment, it was harmless to them. It would have been stopped when the work was going on in the building to which the appellant was assigned, if it had not been the means of transmitting power to the machinery in the adjoining building. If it had been stopped, the machinery in that building would also have been stopped. The belting had been detached from it in the building in wliich the appellee was working, and none of the machinery was in operation there. The plaintiff was not sent into the building to do any work upon this shaft, or upon anything connected with it, and he cannot, therefore, complain that he was hurt in doing any thing with it in performance of the duty assigned to him. But the contention of counsel for appellee is that, even if this be true, when he was directed to work in the building he ought to have been warned against the danger of coming into contact with the revolving shaft. He testified that he did not know it was there, and that it was too dark for him to see it.

As stated, the appellee was not sent into the building to do any work upou the shaft, or upon anything connected with it, and there was, therefore, no duty upon the employer to warn him against any latent danger in it to which he might subject himself in working upon it. While it is the duty of an employer to provide suitable implements and means with which to carry on the business which he sets his employees to do, and he must warn them of all the dangers to which they will be exposed in the course of their employment, except those which they may be deemed to have foreseen as necessarily incidental to the employment in which they engage, or which may be open and obvious to persons of their experience and understanding, he is not bound to warn them of dangers that he cannot be deemed to have foreseen: Wagner v. Jayne Chemical Co., 147 Pa. 475. “ It is not negligence to fail to provide against an accident of such a nature that nobody could have foreseen it, and that no prudence could have anticipated the need of guarding against: ” 1 Labatt on Master and Servant, sec. 142. That which has never happened before, and which is not of such a character that prudent men ought naturally to guard against its happening at all, cannot, when it does happen, furnish a good ground for a charge of negligence in not foreseeing its possible happening and guarding against what no one' could have foreseen. Applying this rule to the facts in the case before us, how can the appellant be said to have been negligent in not warning the appellee against the most unusual accident that befell him ? There was no duty upon it to do so, unless it ought to have anticipated that its employee, in doing work having no connection with the revolving shaft, might come into contact with the same in the peculiar manner stated. It offends reason to' say that a jury could have inferred from the testimony •in this case that the appellant ought to have anticipated the necessity of guarding the appellee against the singular accident that befell him. It would be the wildest guess that the accident ought to have been foreseen and, therefore, guarded against. An employer, when charged with negligence after an accident has happened, is not to be deemed negligent for not having anticipated what no one else, under the circumstances, .would have anticipated. As this appellant cannot be deemed to have foreseen what happened its employee, there is nothing to sustain the charge that it was negligent.

As we can discover no evidence of negligence by the defendant, it is unnecessary to consider the question of the contributory negligence of the plaintiff, pressed with much force by counsel for appellant. The first assignment of error is sustained. The judgment is reversed and is entered here for the defendant.


text:
    Shortlidge’s Estate.

      Res adfudicata — Court of common pleas — Orphans’ court — Life insurance.

    While the orphans’ court alone can distribute the proceeds of an insurance policy in the hands of an administrator among those entitled to receive them, the fund cannot be awarded by that court to a claimant whose claim has been adversely passed upon by the court of common pleas to which he, in a proper proceeding before it, had submitted the same.
    Argued Feb. 5, 1906.
    Appeal, No. 269, Jan. T., 1906, by Garrett E. Smedley, from decree of O. C. Delaware Co., March T., 1901, No. 7,883, dismissing exceptions to auditor’s report in Estate of Marie D. J. Shortlidge, deceased.
    Before Mitchell, O. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of William B. Broomall, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Theodore F. Jenkins, with him Charles L. Smyth and V. Gilpin Robinson, for appellant.

      E. Spencer Miller, with him Leonard E. Wales, for E. G. Shortlidge.

      Edward H. Hall, for estate in bankruptcy of H. C. Howard.

      Albert D. MacDade, for Fidelity Trust Company, Administrator of Marie D. J. Shortlidge.
    April 16, 1906:
   Opinion by

Mr. Justice Brown,

The present appellant, the substituted assignee of S within C. Shortlidge, was before us as an appellee in Provident Life and Trust Company of Philadelphia v. Fidelity Insurance, Trust and Safe Deposit Company, 203 Pa. 82, and we there decided that he had no right to the proceeds of the policy of insurance issued on the life of the assignor. The proceeding reviewed on the appeal in that case had been instituted in court of common pleas, No. 4, of the county of Philadelphia, to which the present appellant became a party on leave granted him to intervene. In his answer he alleged that the endowment policy was the property of Swithin C. Shortlidge at the time the latter made an assignment for the benefit of creditors, and that, as the substituted assignee, he was entitled to receive the moneys payable under it. Every question that he now raises, he raised, or could have raised, in that proceeding. On appeal from the decree made in it, in passing upon the claim of the appellant to the proceeds of the policy, we said what ought not to be misunderstood now. We passed upon the very question which he now raises in reversing the decree below awarding him the money; and in directing that it should be paid to the administrator of Marie D. J. Shortlidge, deceased, it was said: “ The title of the deceased to the policy was absolute, and passed to her administrator, now the Fidelity Insurance, Trust and Safe Deposit Company. The proceeds of the policy belonged to her estate, and, under the intestate laws, passed to her husband through her administrator, subject to his assignments since her death and the attachments issued against him, as if he had never owned the policy and his wife had acquired the title to it through a stranger.”

After the death of Marie D. J. Shortlidge her husband made assignments of his interest in the proceeds of the policy, and several' attachments in execution were issued against him, in which the insurance company was named as garnishee. In directing the fund to be paid to the administrator of his wife, we said : “ With a decree awarding the proceeds of the policy to it, the jurisdiction of the common pleas is at an end. That court cannot distribute for the orphans’ court, even for equitable reasons. To the latter court the administrator must submit its account, where distribution will be made to those entitled to receive the money paid to it under this proceeding.” This language seems also to be misunderstood by the appellant, for he now contends that under it he has the right to submit his claim to the orphans’ court, as one of those entitled to receive the fund. The language used applied to those having assignments and to attaching creditors, but not to the appellant. He had been once heard, and it was finally decreed that he was not entitled to the fund. While the orphans’ court alone can distribute the proceeds of the insurance policy in the hands of the administrator among those entitled to receive them, the fund cannot be awarded by that court to a claimant whose claim has been adversely passed upon by a court of competent jurisdiction to which he, in a proper proceeding before it, had submitted the same. The decree of the common pleas is conclusive that the assigned estate of Swithin C. Shortlidge was not entitled to the fund.

Appeal dismissed and decree affirmed at appellant’s costs.


text:
    George v. Brandon, Appellant.

      Deed — Covenant—General warranty — Husband and wife.

    Where a wife joins in a general warranty deed with her husband, for land belonging to the husband, for the purpose of conveying her right of dower, she is bound by the covenant of general warranty, and she cannot acquire title to the land in proceedings on a mortgage which was lien on it at the date of the deed, so as to set up such title against the grantee ip the deed.
    Argued Feb. 13, 1906.
    Appeal, No. 252, Jan. T., 1905, by-defendants, from judgment of C. P. Schuylkill Go., Nov. T., 1902, No. 319, on verdict for plaintiff in case of Mary P. George v. Lloyd T. Brandon, and Nellie F. Brandon, his Wife, and J. H. Reichenderfer and Hilda Reichenderfer.
    Before Mitchell, G. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Ejectment for land in East Union township. Before Marr, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows:
    [The plaintiff contends that Brandon and his wife, having passed title to this property to William P. George, who was the grantor to the plaintiff in this case, that he cannot after-wards come in and purchase an outstanding title; so far as the record goes he had been paid in full for the value of this property, and they claim, notwithstanding these incumbrances which existed as issued by Nelson F. Brandon in 1866, that under all the evidence in this- case, after he purchased this outstanding title, which was acquired by virtue of this mortgage, that the purchasing of that title would inure to the benefit of his grantee, who was William P. George, and inuring to William P. George, it would, as a matter of law, inure to the plaintiff or his grantee, who is the plaintiff in this case. So far as the record appears in this case, we feel it our duty to sustain this contention of the plaintiff.] [2]
    [As I have intimated in the opening remarks, that the case is not free from some doubt, but as I look upon it, under the evidence which has been admitted in this case, Lloyd T. Brandon and wife having sold this property with a general warranty to William P. George, the grantor of the plaintiff in this case, and that deed having set forth that the consideration of $5,000 was paid in full, with no reservations in it in reference to any incumbrances, it seems to me that if Lloyd T. Brandon after-wards obtained the title to that property by virtue of incumbrances, which existed prior to his title, although he was not the maker of that incumbrance, yet he, procuring the title through a sheriff’s sale by virtue of that prior incumbrance, that he ought to be held to make good his warranty, and he cannot purchase that to the detriment of his grantee. Viewing it in that way, he and his wife should be held to their warranty. Whilst it is true in this case the wife becomes the subsequent purchaser, not Brandon himself, but his wife having joined in a deed, which was duly acknowledged, as provided by the act of assembly, she ought to be held to her warranty, as implied in .the deed from her and her husband to William P. George, who was the grantor to the plaintiff in this' case, especially since the act of 1893 and possibly before that, she having acknowledged this deed.] [3]
    [With that view of it, and under that state of facts, it seems to me that so far as the evidence has been offered in this case, the plaintiff is entitled to recover, and we direct you to render a verdict for the plaintiff for the property in controversy as described in the writ with six cents damages and costs.] [4]
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned were (2-4) above instructions, quoting them.

      H. O. Bechtel, with him W. L. Kramer and J. F. Whalen, for appellants.
    Where a wife joins her husband in a deed of his land, she is not a party to the deed except for the purpose of releasing her dower in the estate conveyed. And she is not estopped by covenants in deed from setting up subsequent title acquired by her own means: Blain v. Harrison, 11 Ill. 384; Strawn v. Strawn, 50 Ill. 33; Snoddy v. Leavitt, 105 Ind. 357 (5 N. E. Repr. 13); Raymond v. Holden, 56 Mass. 264; Jackson & Vanderheyden, 17 Johns. 167; Paul v. Kunz, 188 Pa. 504; Houseman v. Grossman, 177 Pa. 453; Stivers v. Tucker, 126 Pa. 74; Hughes v. Torrence, 111 Pa. 611; Klein v. Caldwell, 91 Pa. 140; Dean v. Shelly, 57 Pa. 426; Fellbush v. Stevens, 15 W. N. C. 237; Gibbs v. Tiffany, 9 Pa. Superior Ct. 406; Chambers v. Spencer, 5 Watts, 404; Hardy v. Mills, 13 W. N. C. 79; Weigle v. Mercer, 1 Pa. Superior Ct. 490; Buchanan v. Hazzard, 95 Pa. 240; Davison’s Appeal, 95 Pa. 394.

      Guy E. Farquhar, with him Otto E. Farquhar and George W. Ryon, for appellee.
    When a person conveys land in which he has no interest at all or has a defective title, but afterwards obtains the better and undoubted title to the premises thus conveyed, the entire title passes to his grantee under the first conveyance and this upon principles of common honesty and justice: Brown v. McCormick, 6 Watts, 60; Wolf v. Goddard, 9 Watts, 544; Cleary v. Kennedy, 16 W. N. C. 313.
    Where there is a covenant of general warranty in fee simple in a deed, the party making such warranty is estopped from setting up title against the grantee: Logan v. Neill, 128 Pa. 457; Shaw v. Galbraith, 7 Pa. 111; Knowles v. Kennedy, 82 Pa. 445.
    It may be conceded that prior to the act of 1893, a married woman could not make such a contract of warranty as would bind her, but since the act of 1893 her powers and rights have been greatly enlarged: Hagenbuch v. Phillips, 112 Pa. 284; Wasserman v. Carroll, 2 Pa. Superior Ct. 551; Jobe v. Hunter, 165 Pa. 5; Kuhn v. Ogilvie, 178 Pa. 303.
    If defendant is setting up title to this property against a grantor of her husband she must then show that she paid for it with her own money or that it was a gift from some other person than her husband: Jack v. Kintz, 177 Pa. 571; Hunter v. Baxter, 210 Pa. 72.
    April 16, 1906:
   Opinion by

Mr. Justice Brown,

Lloyd T. Brandon, the husband of Nellie F. Brandon, became the owner of the land in controversy by deed from Oliver P. Bechtel and wife, dated November 6, 1889. On July 6, 1866, Nelson Brandon, who then owned the land, executed a mortgage on it to Thomas J. Brode for $6,000. When Lloyd T. Brandon acquired title to the property this mortgage was a lien upon it. On March 6, 1895, he and.- his wife, Nellie F. Brandon, conveyed the property, still so encumbered, to William P. George, who subsequently conveyed it to Mary P. George, the appellee. The deed' from the Brandons to George was one of general warranty. On an execution issued upon a judgment obtained on the mortgage for $6,000 the property was sold by the sheriff on November 13,1897, to James J. Dull, who on February 14, 1898, conveyed it to Nellie F. Brandon, the appellee, one of the grantors to the grantor of Mrs. George. By virtue of this deed she subsequently evicted the plaintiff, Mary P. George, the grantee of William P. George, to whom Nellie F. Brandon and her husband, Lloyd T. Brandon, had given a general warranty deed for the property. After she evicted Mrs. George she sold the property to John H. Reichenderfer, the other appellant.

If Lloyd T. Brandon, the husband of Nellie F. Brandon, had acquired title to the property after it had been sold by the sheriff on the judgment obtained on the mortgage, which was an encumbrance upon the property at the time he sold it to George, and he had evicted the plaintiff, who held his general warranty that he would defend her “ against all and every other person or persons -whomsoever lawfully claiming, or to claim,” the premises, no question could be raised that the title so acquired by him would be worthless as against the appellee. If a stranger had purchased the premises, the remedy of the plaintiff would have been an action against Brandon on the covenant, but if he, her own grantor, had acquired the title in proceedings on an encumbrance against the property which he had sold under his covenant of general warranty, he could not have recovered it from her. The title which he gave to her grantor would be paramount to any that he could acquire under an encumbrance existing against the property at the time he sold it, and against which he covenanted to defend.

•The question before us is whether Nellie F. Brandon is estopped from setting up her deed from Dull against the appellee. She joined in the deed to George containing the covenant of general warranty. If, instead of having been the wife of Lloyd T. Brandon, she had at that time been his sister — an unmarried woman — tbe covenant would bind her as it binds him, and what he could not do in the face of it, she could not do. But she now contends that because she was his wife at the time they conveyed to George, she is not bound by her covenant. There was a time when she could have said this and have done what she is now trying to do. That was when a married woman was incapable of making a contract of covenant, and, upon being confronted by one that she had entered into in the most solemn form, could have pleaded her coverture as a discharge from it, however equitable and just it might have been. That was when the common law fetters upon her had not been removed.

In 1895, when Nellie F. Brandon executed the deed to George, she had the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, either in possession or expectancy, and could exercise the said right and power in the same manner and to the same extent as an unmarried person, except that she could neither mortgage nor convey her real property, unless her husband joined in the mortgage or conveyance, and could not become accommodation endorser, maker, guarantor or surety for another. By the act of June 8, 1898, the capacity of a married woman to contract as broadly as one unmarried became the rule, and her incapacity is the exception, limited to the mortgaging or conveying of her real estate, unless her husband joins, and to her inability to become accommodation endorser, maker, guarantor or surety for another. Except as so limited, she may do what her husband can do,- and when she does what she has power to do she is bound by her act.

' Nellie F. Brandon was not bound to join in tbe deed to Geoi'ge. All the interest of her husband would have passed to the grantee, if he alone had executed the deed. She had an inchoate right of dower, which was an expectancy to her, if she should survive him. If she had not joined in the deed and had died before her husband, the latter’s grantee would have acquired the whole estate, for there would have been no dower. But she did join in the deed for the purpose of conveying her right of dower — a right as to which she could contract by the express words, of the act of 1893. Having so contracted, she is bound by the covenant which is an essential part of her contract, from which she cannot be relieved, because it does not'come within either of the exceptions-to hér power to contract.

Our attention has been called to a number of authorities deciding that, where a wife joins her husband in a deed of his land, she is not a party to the deed, except for the purpose of releasing her dower in the estate conveyed, and is not estopped by covenants in a deed from setting up subsequent title acquired by her own mean's. It is a sufficient answer to this to say that there was no evidence that Mrs. Brandon acquired title from Dull by her own means. But we do not rest our decision upon this. We base it upon her power to contract under the act of 1893.

Judgment affirmed.


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    Ganster v. Metropolitan Electric Company, Appellant.

      Corporations — Electric light company — Operation of plant — Nuisance— Damages.

    An owner of a building adjoining an electric light plant may recover damages from the electric light company for the operation of its works in such way as to create a nuisance resulting in injury to plaintiff’s tenement.
    In the absence of authority conferred by its charter a corporation will not be relieved from liability for specific injury to private property resulting'from the exercise of its corporate powers. In this respect a corporation occupies the same position and is responsible for its injurious acts to the same extent that a natural person is.
    If the annoyance or damage arising from a nuisance is such as to destroy or substantially impair the legitimate use or enjoyment of private property and'so amount to a'taking, the person injured is entitled to recover notwithstanding the fact that the defendant company-possesses the power of eminent domain.
    No person’s property can be taken, injured or destroyed without compensation and a corporation can only injure or destroy property when it possesses the power conferred by the state and exercises -that power in the manner provided by the statute.
    A second action for nuisance may be maintained where there is a continuing nuisance.
    ' Punitive or exemplary damages may be recovered in a second or subsequent suit for the continuance of a private nuisance. It is the duty of the defendant to abate the nuisance after the recovery of- a judgment in the first action, and if he fails to do so and continues it, it aggravates the injury and enlarges the damages which may be recovered in the second action.

      Argued Feb. 26, 1906.
    Appeal, No. 58, Jan. T., 1905, by defendant, from judgment of C. P. Berks Co., Nov. T., 1898, No. 36, on verdict for plaintiff in case of William F. Ganster et al. v. Metropolitan Electric Company.
    Before Mitchell, C. J., Fell, Blown, Mestrezat and Potter, JJ.
    Affirmed.
    Trespass to recover damages for a continuing nuisance. Before Ermentrout, P. J.
    The opinion of the Supreme Court states the facts.
    Verdict and judgment for plaintiff for $3,729.16. Defendant appealed.

      Error assigned among others was in giving binding instructions for defendant.

      Richmond L. Jones, for appellant.
    Where, by the operation of an electric light plant, adjoining property is depreciated in value, both present and future damages may be allowed in .an action to recover for such loss: Hyde Park Thomson-Houston Light Co. v. Porter, 167 Ill. 276 (47 N. E. Repr. 206); Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. R. R. Co. v. Marchant, 119 Pa. 541; Keiser v. Gas Co., 143 Pa. 276; Robb v. Carnegie, 145 Pa. 324; Brown v. Radnor Twp. Electric Light Co., 208 Pa. 453.

      Jefferson Snyder, of Snyder Zieber, and Cyrus G. Derr, with them Edward S. Kremp, for appellees.
    Where a corporation is clothed with the right of eminent domain, and is expressly authorized by law to construct its works and operate them, any injury resulting from such operation, without negligence and without malice, is damnum absque injuria; but where a corporation has no right of eminent domain; the operation of its works, causing consequential injuries to another, is a nuisance: Hauck v. Tidewater Pipe Line Co., 153 Pa. 366.
    A second suit may be maintained: South Bethlehem Gas & Water Co. v. Yoder, 112 Pa. 136; Mountz v. Phila., etc., R. R. Co., 203 Pa. 128; Hartman v. Inclined Plane Co., 159 Pa. 442.
    The jury are warranted in assessing punitive damages, for the continuance of the nuisance in this case: McCoy v. Danley, 20 Pa. 85; Ellis v. Academy of Music, 120 Pa. 608.

      April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

The learned trial judge correctly decided the controverted questions in this case, and the reasons given and the authorities cited in his opinion in discharging the rule for judgment non obstante veredicto fully justify his conclusion.

This is an action of trespass to recover damages for injuries to the buildings on the plaintiffs’ lot caused by the operation of the machinery in the defendant’s electric light plant on the adjoining lot. The plaintiffs’ allegation here, sustained by the judgment in a former action, is that the defendant company “ so attached their works and buildings to ours, that in operating its works it grievously injured our buildings and rendered them untenantable.” It is claimed and the evidence tended to show that the defendant’s building was so constructed that the vibrations produced by the operation of the ponderous machinery therein “shook the buildings of the plaintiffs, that the shaking was not of the ordinary character, but was of such a nature as to cause the plaster to fall off from the walls, pictures to fall from the walls, windows to rattle, panes to fall out, some cracks in walls, and crockery to fall from shelves or cupboards.” In other words, it is alleged and a judgment of the court below has determined that the continuous operation of the defendant’s light plant will in time result in the destruction of the buildings on the plaintiffs’ adjoining lot.

In the absence of authority conferred by its charter, a corporation will not be relieved from liability for special injury to private property resulting from the exercise of its corporate powers. In this respect a corporation occupies the same position and is responsible for its injurious acts to the same extent that a natural person is: Rogers v. Philadelphia Traction Company, 182 Pa. 473. In that case, Chief Justice Steeeett, in delivering the opinion, says (p. 477) : “ There is certainly nothing in its (traction company) charter to relieve the defendant from liability for the special injury which the plaintiff has suffered in consequence of its operations on its own land, as determined by the verdict. As an artificial person it cannot, any more than a natural person, escape liability for special injury done to others, unless it can be shown that because it -is a mere creature of the law it enjoys immunity from liability which natural persons do not; but no such proposition as that has ever been recognized in any well considered case. No authority for it can be found in Pennsylvania Railroad Co. v. Lippincott, 116 Pa. 472; Pennsylvania Railroad Co. v. Marchant, 119 Pa. 541, or any of that line of cases. It is not only untenable in law, but it is lacking in reason. If several individuals had purchased the defendant company’s lot and erected thereon the machinery and appliances that it did, and had operated the same as it has done to the great and manifest special injury of the plaintiff, no one would venture to question their liability to respond in damages.”

The defendant corporation was clearly liable for the nuisance committed against the plaintiffs in the operation of its plant. The learned counsel for the defendant company bases its right to immunity for the commission of the nuisance on the ground that his company has the right of eminent domain. He cites and relies on the recent case of Brown v. Radnor Township Electric Light Company, 208 Pa. 453, as establishing the doctrine that electric light companies, chartered under the Act of May 8, 1889, P. L. 136, possess the power of eminent domain. He clearly misapprehends the ruling in that case and misapplies the doctrine there announced to the facts of the case in hand. There, the owner of the land through which a turnpike road passes filed-a bill to enjoin the electric light company from erecting its poles and stringing its wires in the bed of the side of the road through his land. The court below refused the injunction and its decree was affirmed by this court. It was held that as by the express terms of the act of 1889 the light company had “ the right to enter upon any public street, lane, alley or highway ” for the purposes of its incorporation, it was authorized to erect its poles and string its wires in the bed of the turnpike road through the plaintiff’s land and to that extent it had the right of eminent domain. The right of an electric light company to condemn land for its power house, or to exercise the power of eminent domain generally, did not arise and was not determined by the decision in the case. The right to erect their poles on a public road or highway was held to be conferred on such companies only by reason of the express language of the act authorizing their incorporation. It was said in the opinion, quoting from Pennslyvania Railroad Company v. Canal Commissioners, 21 Pa. 9, that “ corporate powers can never be created by implication nor extended by construction.” No part of the act expressly invests electric light companies with the power to condemn lands other than those in roads or highways in which the company is permitted to erect its poles. It is clear, therefore, that the case cited by the defendant’s counsel does not sustain his position that his company possesses the unlimited right of eminent domain.

' But if it be conceded that the defendant company is invested with the full power of eminent domain, it was not justified in committing the injurious acts complained of in this action. Such authority would not legalize a nuisance of this character. In 21 Am. & Eng. Ency. of Law (2d ed.), 737, it is said, numerous authorities being cited to support the proposition: “ If the annoyance or damage arising from the nuisance is such as fq destroy or substantially impair the legitimate' use and enjoyment of private property, and só amount to a talcing, the person injured is entitled to redress, notwithstanding the legislative authorization.” The acts complained of here, it will be observed, are not mere trifling annoyances or discomforts created by smoke or noise dr dust resulting from the operation of the plant, but were real and substantial injuries to the plaintiffs’ building, causing its walls to shake and crack, and, in time if the nuisance is persisted in, necessarily resulting in the destruction of the building. No person’s property can in this state be taken, injured or destroyed without compensation, and a corporation can only injure or destroy property when it possesses the power conferred by the state and exercises that power in the manner provided in the statute. Until the defendant company, therefore, has exercised its alleged right of eminent domain and by the authority thereof acquires plaintiffs’ property, its illegal acts resulting in a substantial impairment and, finally, in the destruction of the property constitutes an actionable nuisance for which it is liable in this actiom This case is not ruled by Pennsylvania Railroad Company v. Lippincott, 116 Pa. 472, and Pennsylvania Railroad v. Marchant, 119 Pa. 541, relied on by the defendant’s counsel to support his position. In those cases the injuries were caused by the noise, smoke and dust from the defendant company’s engines’ and cars used in operating its railroad on a viaduct on its own land on the opposite side of a street from the plaintiffs’ premises. Here the defendant company erected its plant on land purchased for the purpose and in immediate contact with the plaintiffs’ buildings and so constructed the foundation and floor of its building that the operation of the heavy machinery resulted directly in destroying the use of the plaintiffs’buildings. It is therefore apparent and needs no argument to show that -the defendant’s contention in the case in hand finds no support in the Lippincott and Marchant cases.

There is no merit whatever in the defendant’s position that the verdict and judgment in the first case is a bar to the present action. The first action, like the present, was to recover damages for a continuing nuisance created by the operation of the defendant company’s electric light plant on the adjoining lot. Damages were recovered for the injury to the plaintiffs’ buildings and for the loss of rent- of the buildings up to the daté of bringing the action. The present suit was brought by privies in title to the plaintiffs in the prior action, for injuries of the same character and occasioned by the same operation of the machinery in the defendant’s electric plant subsequent to the date to which damages were recovered in the former action. As well said by the learned trial judge in speaking of the measure of damages and the cause of action in the first suit: “ The measure of damages was not the permanent injury done to the real estate; it was not a question of depreciation in market value, but simply one of the value of the necessary repairs and the depreciation in rental value caused by the operation of the defendant’s plant. How plaintiffs’ property would be injured in the future could not have been foretold. What depreciation there might have been in rental value could not have been foreseen. There was no permanency to he calculated upon in the operations of the company. They could suspend their working. It could not be assumed that defendant would continue the unlawful infliction of injury upon the plaintiffs after the trial, notwithstanding defendant contended it was not rer sponsible for any injury at all. In point of fact, therefore, the first suit was not for permanent injury, and, therefore, the position of the defendant indicated in the reserved point (that the judgment in the first suit was a bar to any further action) is untenable.” The injury done to the plaintiffs’ property from time to time was a continuing nuisance and hence .no. action would be a bar to a subsequent action except as to the damages sustained and recovered to the date of bringing the prior suit.

It is well settled that punitive or exemplary damages may be recovered in a second or subsequent suit for a continuance of a private nuisance. It is the duty of the defendant to abate the nuisance after the recovery of a judgment in the first action, and if he fails to do so and continues it, it aggravates the injury and enlarges the damages which may be recovered in the second action: McCoy v. Danley, 20 Pa. 85; Ellis v. Academy of Music, 120 Pa. 608. In these and other decisions of this court it is held that a judgment in favor of the plaintiff in the first action fixes the liability of the defendant and is decisive of the parties’ rights in the controversy.

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


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    McManus’s Estate.

      Executors and administrators — Coexecutors—Compensation—Counsel fees.

    Where an individual and a trust company are coexecutors of an estate, and the individual has taken and administered the assets to the exclusion of the trust company, and the latter has been compelled for its own protection to require the coexecutor to file an account, an allowance to the trust company for compensation and counsel fees of an amount slightly in excess of one-half of the compensation and counsel fees allowed to the other executors, will not be set aside by the Supreme Court, where it appears that the amount allowed to the individual executor was not objected to in any way by the beneficiaries under the will.
    Argued Feb. 27, 1906.
    Appeal, No. 336, Jan. T., 1905, by Francis P. McManus, executor et al., from decree of O. C. Berks Co., Sept. T., 1905, No. 20, overruling exceptions to adjudication in Estate of Caroline McManus, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Exceptions -to adjudication. Before Bland, P. J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that Francis P. McManus was allowed for his compensation the sum of $4,786.49 and that his counsel was allowed $1,435, without any objections by the parties in interest. The auditing judge allowed the Reading Trust Company, the coexeeutor, $2,393.24 as compensation, and $1,200 counsel fee. Exceptions to the allowances to the Reading Trust Company were overruled.

      Error assigned was decree overruling exceptions to the adjudication.

      Cyrus G. Derr, for Francis P. McManus.

      Frante P. Prichard, for Catharine Archer.

      Isaac Hiester, for appellee.
    April 9, 1906:
   Opinion by

Mr. Justice Mestrezat,

When this estate was here last year on an appeal by the present appellee from a decree of the orphans’ court refusing to require Francis P. McManus, one of'the executors, to file an account, our Brother Beccwn, delivering the opinion, said: “ What the appellant asks us to say is, that as executor it has certain rights as against its coexecutor, who owes it certain duties. When it accepted letters testamentary and qualified as one of the executors, its rights as the personal representative of the deceased in the settlement of her estate were no less than those of the appellee. If he took into his own hands all of the assets and utterly excluded his coexecutor from any participation in the settlement of the estate, it has a right now to know from him that his stewardship has been so discharged that no further accountability rests upon it. . . . There is no denial in the answer that the appellant is entitled to compensation, nor that it has incurred costs and is liable for counsel fees -to be paid by the estate. Such costs and counsel fees are for the-consideration of the court and for its-allowance-of them on an adjudication of the account of the executor -having all the funds of the estate in his hands: ” McManus’s Estate, 212 Pa. 267.

The counsel for Francis P. McManus, coexecutor, one of the distributees and one of the appellants, in his printed brief says that his client has at no time denied that the appellee is entitled to compensation and expenses out of the estate of the testatrix, and claims that “the compensation should be such as would reasonably requite the appellee for the care and observation implied in the having of-knowledge of .what the appellant was doing, and the services rendered in the enforcement of such right, and of the right to an account and adjudication as aforesaid.” ' His contention is, however, that the orphans’ court erred in measuring the compensation by a percentage upon the debit side of the account. If we understand the position of the counsel for Mrs. Archer, a’.distributee and an appellant, he concedes the right of the appellee to compensation out of the estate but contends that it should not be measured by a commission. He, like McManus’s counsel, also claims that the amount allowed by the court below.is excessive.

It will therefore be observed that here, as in the court below, the only question is the amount of compensation due the trust company, and its counsel for services rendered the estate..' This was a question of fact to be determined, by the orphans’ court and the appellants have not shown that its finding is so clearly erroneous as to justify us in holding it to be unreasonable or excessive. The learned judge of the court below, familiar with all the facts, has demonstrated that the services of the appellee and its counsel were of much greater value to the estate, of the decedent than those of the coexecutor and his counsel. This comparison was perfectly legitimate and proper in determining the compensation of the appellee and its counsel in view of the fact that the amount allowed McManus and his counsel was acquiesced in and agreed to by all the distributees of the decedent’s estate. This agreement fixes the value of the services to the estate of one of the executors and his attorney. In determining the amount of McManus’s compensation, it must be assumed that the distributees took into consideration the value of the estate, the work done, and such other matters as form a proper basis for estimating the value of such services. At all events, it cannot reasonably be assumed that they consented to an allowance to. McManus, that was. exorbitant and not warranted by the facts of the case. The learned judge below therefore cannot be convicted of error in making use of this criterion in ascertaining the amount due the other executor. The sum allowed the trust company is one-half the amount the distributees agreed was reasonable compensation for McManus for performing the necessary services in the settlement of the estate. In addition to this as a basis for the appellee’s compensation, the learned judge has found that the sum awarded by the court to the trust company and its counsel is reasonable in view of the services actually rendered by them. Considering all the facts in the case, including the additional labor and expense necessitated by the conduct of McManus and the other distributees, the appellants, here, we cannot say that the compensation allowed by the court below to the appellee was not proper and reasonable.

The decree is affirmed.