text:
    Philadelphia to use v. Tripple, Appellant.

      Contracts — Building contract — Indebitatus assumpsit — Breach of contract.

    1. In an action to recover the balance alleged to be due on a building contract, where the plaintiff is not in default, he may recover in indebita-tus assumpsit from the defendant who has wrongly stopped the work, the cost of such labor and materials furnished, but not yet paid for, although such cost is in excess of the price fixed by the contract, and although he would have suffered a loss if he had been permitted to complete the work.

      Contract — Building contract — Time limit — Waiver.
    2. Where a building contract provides a time limit, but the contractor after the expiration of the time limit has been, permitted to continue the work, and receives payment therefor, the owner will be deemed to have waived the provision as to the time limit.
    Argued Jan. 5, 1911.
    Appeal, No. 61, Jan. T., 1910, by defendants, from order of C. P. No. 1, Phila. Co., Dec. Term, 1903, No. 803, dismissing exceptions to report of referee in case of Philadelphia to use of John McMenamy v. William Y. Tripple, Trustee in Bankruptcy of the Estate of George C. Dietrich, substituted defendant for George C. Dietrich and J. Hampton Moore, Receiver of City Trust, Safe Deposit & Surety Company of Philadelphia, substituted defendant for said City Trust Safe Deposit & Surety Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzis-(Ker, JJ.
    Affirmed.
    ■Exceptions to report of George Wharton Pepper Esq., referee.
    The referee’s report was substantially as follows:
    FINDINGS OF FACT.
    1. On October 4, 1902, George C. Dietrich entered into a contract with the city of Philadelphia to furnish and deliver the materials and to perform the work required to be done in “constructing the foundations and superstruc-* ture for Engine House No. 2 and Boiler House No. 2 situate on ground lying between the Delaware River and Milnor Street and Between Robins Street and Leviek Street in the Forty-first Ward of said city. . . .”
    2. On the same day Dietrich as principal and the City Trust, Safe Deposit and Surety Company of Philadelphia as surety executed and delivered to the city a bond in the sum of $56,500 conditioned as follows: “That if the said George C. Dietrich shall and will promptly make payment to all persons, any and all sum or sums of money which may be due for supplying him with labor and materials, whether as a subcontractor or otherwise, in the prosecution of the work provided for in said contract, and shall and will comply with all the provisions of the ordinance of the Select and Common Councils of the city of Philadelphia entitled, 'An ordinance for the protection of subcontractors,’ etc. . . .”
    3. On February 16, 1903, the said Dietrick and John McMenamy entered into a contract by which the latter undertook the excavation for and laying pipe and placing all material required to construct the main conduit, Delaware River Conduit, the East Conduit, the intake chamber and gate chamber Nos. 1, 2 and 3 with their connections as shown on the plans, .... for the price or sum of $34,500, to be paid in monthly cash payments as the work progressed in accordance with the estimates as certified by the inspectors and engineers in charge of the work in accordance with a certain schedule dated February 16, 1903; to the extent of 35 per cent thereof and the final payment reserved until the full completion and approval of the work by the city engineers and inspectors. This contract, inter alia, provided that the work of the subcontractor was to be completed within 125 working days from its date.
    4. .Under this contract McMenamy began his work of excavation at the intake chamber in the Delaware river and progressed westwardly with the excavation of the conduit to a point near the wall of an engine house belonging to the city, and constituting a part of the pumping station. When the conduit arrived opposite the engine house the excavation was widened out for the building of a gate chamber until the excavation was bounded by the wall of the engine house. In the course of the excavation of this gate chamber it was found that the foundation wall of the engine house grew thicker as it descended, so that a line drawn from the top of the foundation to the bottom formed an angle with the perpendicular wall. The foundation rested on a grillage, which in its turn was supported by piles. The ordinary method of excavating was to drive sheathing just outside of the line of the excavation, so as to prevent the displacement of material, but as one side of the gate chamber was against the engine house foundation wall, it was impossible to drive sheathing outside of this line without tearing down the engine house wall, and it was impossible to drive sheathing inside the line and build the gate chamber, without departing from the plans. This difficulty was rendered inevitable by the fact that the surface of the foundation of the engine house was found to slope outward as it went downward below the surface in the manner hereinbefore described. About the time that the excavation reached the bottom of the engine house wall, water from the Delaware river rushed up into the middle of the excavation through the gravel bottom, its source being afterwards ascertained to be a defect in the forebay' of the pumping station. This influx of water was not the result of fault on the part of McMenamy.
    5. After the water had come in from the bottom of the excavation, a consultation was held, with the result that the chief engineer of the city changed the plans and moved the location of the gate chamber westward so as to take it away from the neighborhood of the engine house, and he also ordered the excavation made for the original gate chamber to be partially filled up adjoining the engine house, so as to facilitate the pumping out of the water. The work of finishing the original excavation for the conduit was then continued. It ran from the Delaware river past and some distance from the wall of the engine house, until it reached the new gate chamber west of the engine house. In pursuing this work, great difficulty was encountered in keeping the trench clear from water, and from April until October the progress of the work was exceedingly slow, the city engineers in the meantime endeavoring to locate the leak.
    6. The period of 125 working days specified in the contract of February 16, 1903, expired on or about July 14, 1903. No action was taken by Dietrich in view of the noncompletion of the work at that time, and McMenamy continued work under his contract with the knowledge and acquiescence of Dietrich. As time went on, however, Dietrich became more and more dissatisfied with the rate of progress, and early in October, 1905, a meeting to consider the situation was held on the ground, those present being Dietrich, McMenamy and their respective counsel. Dietrich complained that McMenamy was not able to cope with the water problem, and McMenamy complained that Dietrich had been derelict in not furnishing the pumps required by the contract. . . .
    8. On October 15, 1903, Dietrich wrote to McMenamy a letter in which he said:
    “Inasmuch as you have failed to complete the construction of conduit at Lardners Point Pumping Station, Philadelphia, within the time and in accordance with the other requirements of your contract made with me February 16, 1903, you will please discontinue further work on the conduit and remove all your men, tools, machinery and materials therefrom within five days from this date.”
    9. On October 16, 1903, McMenamy wrote to Dietrich:
    “I will obey your notice and will at once commence and will within the time designated finish the work of removal which you demand.
    “I wish to say, however, that you have no foundation for complaint at the noncompletion of the construction of the Lardners Point Pumping Station conduit. You have already been told, both in writing and by word of mouth, of the particulars of which you have failed to carry out your contract. In addition to this many of the changes which have been made and the things which have been done have interfered with the completion.
    “I will obey your notice, therefore, without acquiescing in your suggestion about my having failed in anything. I will bring a suit against you to recover the amount of my expenditures which I have already made and the damages which will result to me from your improper cancelling of my contract.”
    10. After writing the above letter of October 16, Mc-Menamy did in fact discontinue further work under the contract and removed his men, tools, machinery and materials from the ground.
    11. McMenamy was not in fact in default in the performance of his contract at the date of Dietrich’s notice to quit.
    12. The actual cost to McMenamy of labor and material to the date of the receipt of Dietrich’s notice to quit was $24,461.89. He received from Dietrich, as the work progressed, $9,000, on account of the contract price.
    FINDINGS OF LAW.
    1. The failure of McMenamy to perform his contract within the time specified therein gave to Dietrich a right to treat McMenamy as in default at the expiration of the period of 125 working days, from February 16, 1903. Dietrich’s conduct after the expiration of the specified period amounted to a waiver of his right to enforce the time limit. As McMenamy thereafter, with Dietrich’s knowledge, spent time and money in doing work under the contract, Dietrich is equitably estopped from setting up the failure to complete within the specified time as a defense to the present suit.
    2. As McMenamy was not in default in the performance of his contract on October 15, 1903, the legal effect of the letter written to him on that date by Dietrich was to discharge McMenamy from further obligation to perform his contract and to waive a tender of further performance.
    3. Nothing in the contract between McMenamy and Dietrich justified the position taken by Dietrich in his letter of October 15, 1903.
    4. In virtue of his discharge by Dietrich from the obligation of further performance, McMenamy acquired the right to bring an action against Dietrich for the breach of contract or to treat the contract as rescinded by the action of Dietrich, and to bring an action to recover the amount theretofore expended by McMenamy for labor and materials, less a proper credit for sums paid on account of the contract price. McMenamy, in fact, elected to stand on the second of these two rights. This circumstance that McMenamy, had he been permitted to complete his contract, would necessarily have expended (if we are to judge by the subsequent experience of Dietrich) a sum largely in excess of the contract price, is not a circumstance that deprives him of his right to recover the actual cost of labor and material incurred by him.
    5. The money which McMenamy is entitled to recover from Dietrich in virtue of the election of remedies made by McMenamy, falls within the meaning of the words “money which may be due for supplying .... labor and materials,” in the condition of the bond given by Dietrich, as principal, and the City Trust, Safe Deposit & Surety Company, as surety, and a valid right of action for such moneys arose upon said bond in favor of McMenamy against the original defendants.
    6. The bond in suit is not in its nature a bond indemnifying McMenamy against loss. It is an absolute undertaking by its makers that money due the subcontractor for supplying the principal contractor with labor and materials shall be paid; and this circumstance makes it immaterial to the obligee’s rights that he would or might have lost money on his contract, had he been permitted to proceed with performance. The plaintiff, McMenamy, is entitled to recover from the substituted defendants the sum of $15,461.89 with interest from October 14, 1903.
    OPINION.
    The findings of fact-heretofore made by the referee sufficiently indicate the view taken by him upon such conflicts of testimony ás are disclosed by the record. Nor does it seem necessary to state more fully than in the findings of law the reasons which have led the referee to conclude that the failure of McMenamy to finish his work within the time specified in the contract is not a material circumstance in the case.
    The only question of law which seems to the referee to call for a more extended comment is the question of the right of McMenamy to recover his disbursements for labor and material in a case where it seems reasonable to infer that full performance by McMenamy would have involved an expenditure by him of sums in excess of the contract price. It may be remarked in passing that the large expenditures made by Dietrich when he undertook to complete the work begun by McMenamy do undoubtedly suggest the inference that McMenamy would have completed at a loss, although it is of course not a necessary conclusion of fact or of law that this would have been the case.
    Even, however, if it be assumed that McMenamy, if allowed to complete his work, would have lost money in so doing, the referee is of opinion that the act of the defendant Dietrich, in discharging the plaintiff from further obligation to perform, gave rise to a right on the part of the plaintiff to recover for his disbursements. Let it be assumed that, in an extreme case, a builder has actually expended in the course of his work a sum in excess of the contract price and has not yet completed performance. If under such circumstances, the builder finishes his work, the owner, upon paying the contract price, will receive the benefit of a large expenditure actually made, in return for the payment of a smaller sum of money. This result, which may well involve a hardship upon the builder, is made necessary by a proper regard for the contractural rights of the owner. The owner has made a valid contract, and this contract must be protected and enforced even if the builder suffers.
    Let it further be supposed, however, that the owner, who finds himself in this position of advantage, voluntarily puts an end to his contract rights in the premises. This in legal effect he does if he himself breaks the contract or discharges the builder from his obligation to perform it. The situation which then presents itself is one in which the builder has in good faith expended money in the course of work done for the benefit of the owner, and has, in the absence of contract, an equitable claim to be reimbursed. The owner, on the other hand, has deprived himself of the legal right which would have sufficed to defeat the equity. He accordingly stands defenseless in the presence of the builder's claim.
    Such, it is submitted, is the legal analysis of the situation in which the parties to this action find themselves. It may, of course, be contended that Dietrich did not receive an actual benefit coextensive with McMenamy’s expenditure. It is a sufficient answer to this contention to observe that (upon the facts as heretofore found) Mc-Menamy expended the money in good faith and in the course of attempted performance. This is sufficient to give him an equitable claim for reimbursement.
    The defendants do not dispute the general proposition that a plaintiff may, as if in the absence of contract, recover the cost of work and materials in case he is prevented by the owner from finishing his work. The defendants earnestly contend, however, that the rule meets with an exception in case the disbursements exceed the contract price. In other words, they regard the difference between the price specified in the contract and the sum of the disbursements as the measure of recovery, and they insist that if the aggregate of disbursements equals or exceeds the contract price there can be no recovery at all.

      This view, as is indicated by the analysis made above, ■ appears to the referee to involve a confusion of thought. How can the plaintiff’s claim for disbursements actually made be met by the limitation contained in a contract, unless the defendant retains the right to enforce the contract? And how can it be contended that the defendant retains stich a right when the contract has been discharged by his own act? It may well be that a plaintiff, upon defendant’s breach may offer the discharged contract as evidence of the value of that for which he is seeking recovery. The plaintiff in such a case has not broken the contract; he may fairly contend that its terms are at least an admission by the defendant which the jury should take into consideration. But where the defendant undertakes to limit the plaintiff’s recovery by treating the contract price as a limitation upon such recovery, he. is asserting a right under the very contract, which he himself has discharged. The defendants cite Brown v. Foster, 51 Pa. 165, as sustaining their contention. On examination, however, it is clear that the case does not help them. It was the case of a plaintiff, not in default who was held to be entitled to offer the contract in evidence in an action upon the common counts. It was not the case of a defendant in default who attempted to enforce a right created by the broken contract. On the other hand, Mooney et al. v. York Iron Co., 82 Mich. 263 (46 N. W. Repr. 376), cited by the plaintiff, throws much light upon the question under consideration, for in that case the plaintiff was permitted to recover from defendant in default the fair value of labor and material which was said not to be correctly measured by their value to the defendant.
    The case last referred to becomes particularly significant when we come to consider Doolittle v. McCullough, 12 Ohio St. 360, which is strongly relied upon by the defendants. If the opinion is read without attentive consideration of the facts, there are a number of statements by the court which supports the defendant’s view. That the case abounds in obiter dicta is recognized in the later de-cisión of the same learned court in Wellston Coal Co. v. Franklin Paper Co., 57 Ohio St. 182 (48 N. E. Repr. 888). Even in the latter case, however, it is fair to the defendants to say that the court treats Doolittle v. McCullough as authority for the alleged general rule that a plaintiff cannot in indebitatus assumpsit recover more than the contract price. Curiously enough, the judge who criticises the looseness of the language in the earlier opinion fell into the same error himself. Doolittle v. McCullough is not an authority for any such general rule. What happened in that case was this: that contractor who had done excavation at the contract price of eleven cents per cubic yard and had received payment at the contract price for which he had done, was permitted (after an alleged stoppage of the work by the defendant) to recover not only for subsequent disbursements, but additional compensation for work already paid for — on the ground that its fair value was in excess of the contract price. A verdict for the plaintiff involving such a recovery was set aside and the instruction which made it possible was held to be erroneous. An accurate statement of what was really decided in Doolittle v. McCullough will be found in Keener on Quasi Contracts, pp. 312 and 313. In the footnote on the latter page will be found a careful discrimination between those cases in which the plaintiff is in default and those in which the defendant is in default.
    Doolittle v. McCullough is not, therefore, an authority in the present case. So far as the evidence shows, not a dollar of the sum now claimed by the plaintiff represents disbursements for work that has been paid for, nor is he seeking additional compensation for having done such work at a loss. He stands upon the proposition that a plaintiff not in default may recover in indebitatus assump-sit against a defendant in default the cost to the plaintiff of such labor and materials as have not yet been paid for, although such cost is in excess of the price fixed in the contract which the defendants’ act has discharged. This proposition is of strength amply sufficient for the plaintiff’s support.
    February 27, 1911.
    It is indeed suggested that the plaintiff’s statement, by including a claim for profits, makes it impossible to regard the action as an action in disaffirmance of the contract. The claim for profits has been abandoned by the plaintiff, and the amount awarded by the referee includes no such element. As a mere matter of pleading, however, the defendant’s point would be well taken but for the circumstance that, in the last analysis, the action is to be regarded as an action on the bond given by the defendant. The various averments in the statement of claim must be treated as averments of the facts which are alleged to have constituted a breach of the condition. If the proofs establish such a part of the allegata as suffice to constitute a breach of the condition, a recovery may be had without amendment. As the alleged variance has really not misled the defendants, an amendment of the statement would be permitted at any stage of the cause even in case it were technically necessary.
    For the reasons above given, and in accordance with the findings heretofore made, the ■ referee recommends the entry of a judgment in favor of the plaintiff and against the defendants in the sum of $15,461.89 with interest from October 14, 1903.
    Exceptions to referee’s report were dismissed by the court.

      Error assigned was in dismissing exceptions to referee’s report.

      Hampton L. Carson, with him John Kent Kane and Joseph Hill Brinton, for appellants.

      Frank P. Prichard, with him John G. Johnson, for ap-pellee.
   Per Curiam,

The judgment appealed from is affirmed for the reasons stated in the report of the learned referee.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Boulevard From Second Street.

      Wills — Construction—Life estate.

    1. A testator devised to his grandnieces all the property of which he should die possessed, “and to their heirs and assigns, subject nevertheless to the following restrictions, .... the real estate of which I may die seised shall be held and enjoyed by them during their lives, or, in case of the death of one of them, during the life of the survivor,” upon condition that they or one of them should make the testator’s homestead a place of permanent residence; upon the refusal of both to reside at the homestead, for two months, the real estate mentioned to go as directed in the next clause of the will, as if the devisees were dead. The “next clause” of the will directed that upon the death of the devisees for life, the real estate should go to “The Infidel Society in Philadelphia, hereafter to be incorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics, etc.” Held, that the remainder to the infidel society was invalid, and that the grandnieces took an estate for life only.
    2. If a testator in one part of his will devises an estate in fee simple and it appears from the language of subsequent parts of the will that he intended the devisee to take a smaller estate the first devise is limited accordingly. Where the subsequent provisions only affect qualities inseparable from the estate previously given they have no effect. Where, however, they show the nature of the estate and that what might be a fee under preceding terms of the will was intended to be an estate for life or for years they are to be given effect.
    Argued Jan. 5, 1911.
    Appeal, No. 118, Jan T., 1910, by John T. Sinnott, executor and trustee under will of Mary A. Conover, deceased, from judgment of Superior Court, Oct. T., 1909, No. 281, affirming order of Q. S. Phila. Co., Aug. T., 1907, Docket No. 55, p. 208, sustaining exceptions to report of jury of view In re Boulevard from Second Street to Rhawn Street.
    Before Fell, C. J., BROwn, Mestrezat, Potter, Stewart and Moschzis-ker, JJ.
    Affirmed.
    Exceptions to report of jury of view.
    The facts appear in the report of this case in 42 Pa. Superior Ct. 372, and in Zeisweiss v. James, 63 Pa. 465.

      Henderson, J., filed the following opinion:
    We feel constrained to hold that the judgment in this case should be controlled by the decision in Zeisweiss v. James, 63 Pa. 465. True it is, as contended by the appellant, that the issue in that case was not between the heir at law and the grandnieces to determine their respective titles, but the stipulation of the case stated involved an inquiry into their titles. It was agreed “that if the court should be of opinion that Amanda James, Anna N. James and Mary A. Conover were entitled to an estate in fee simple in said premises, judgment should be entered for the plaintiff,” etc. The niece and her daughters alleged therefore that they were the sole and absolute owners of the land which they had contracted to sell and in submitting the case stated they appealed to the court for judgment on the character of their title. The foundation of fact presented for the consideration of the court was the will of Levi Nice and the agreement that Amanda James was the sole heir at law of the testator. The decision that the devise to the Infidel Society was void did not determine the relative interests of the plaintiffs in the land to be conveyed and when they asserted their power to sell and their right to compel the defendant to pay the purchase money it was in the line of logical inquiry to ascertain what interest they had and upon what title they stood as vendors. The interpretations of the will by the court in that case should have great weight, therefore, in determining the question now before us which directly involves the title of Amanda James as an heir at law of the testator and her two daughters as devisees. The sole question here is whether these devisees took a title in fee or a life estate and on this point the decision holds their interest to be a life estate only and that, as there was no residuary clause in the will, the remainder passed to the heir at law because the devise to the Infidel Society was void.
    If we agree with the learned counsel for the appellant however, that the opinion of the court in that case went beyond the necessary limits of the question submitted we think the opinion correctly interprets the intention of the testator and correctly states the reasons which should control the decision in this case. In the second paragraph of the will the testator gives and devises to Mary A. Con-over and Ann N. James “All the property of which I may die possessed of in fee simple, and to their heirs and assigns, subject nevertheless to the following restrictions that is to say that the Real Estate of which I may die seized shall be held and enjoyed by them during all the term of their natural lives, or in the case of the death of one of them then during the life of the survivor, upon the express condition that they shall make the homestead property upon which I now reside, and known as Oxford Lodge, as their place of permanent residence, or the residence of one of them, and it is my will that should they both refuse to so reside at said homestead residence for the space of two months then said real estate is to go as directed in the next clause of this my will that is to say in the same manner as if both said devisees were dead.” The next paragraph provides as follows: “Immediately after the death of both of my said grandnieces, then it is my will that my real estate aforesaid shall go to and be held in fee simple by the Infidel Society of Philadelphia hereafter to be incorporated,” etc. It would be admitted, of course, that if the second paragraph ended with the devise in fee simple and to the heirs and assigns of the devisees that there would be nothing for consideration here, but a very important part of the paragraph immediately follows which declares that the devise is subject to restrictions, that is, it is not the broad and general and absolute devise indicated by the words already used by the testator. The restrictions referred to are limitations on the estate devised in two respects, (1) the land devised is to be held and enjoyed by the devisees during all the term of their natural lives only or the life of the survivor of them, (2) if the devisees or one of them fail to make the homestead property their or her place of permanent residence and both refuse to so reside for a space of two months then their estate is to cease and be determined as if both said devisees were dead and all the real estate is to go as directed in the next clause of the will. The next clause contains the devise to the Infidel Society. We find here then words in the second paragraph which clearly, as we read them, express the intention of the testator that the estate to be acquired by the devisees under the will is a life estate only determinable sooner by their refusal to occupy the homestead. This is set forth in language which is not obscure and which the. ingenious argument of the appellant’s counsel has not persuaded us is susceptible of another interpretation. This intention is further exhibited in the provision in the same paragraph that if the devisees refuse to occupy the homestead residence the “real estate is to go as directed in the next clause of this my will that is to say in the same manner as if both of said devisees were dead.” These words show that the thought of the testator was that their interest was a life estate and that if they refused to comply with his request to occupy Oxford Lodge such refusal should have the like effect in terminating their estate as if they were dead. In the third paragraph there is a devise in remainder which becomes effective on the death of the survivor of the life tenants or at an earlier period if they fail to comply with the condition as to residence. If this devise had been good it would probably not be contended that the estate in the first takers was greater than a life estate. It is a well recognized rule of construction that a limitation over after the death of the first devisee is evidence of an intention that the devisee of the prior estate in order of enjoyment was intended to have not more than a life estate. The estate is not cut down by the gift in remainder'but the latter is evidence of the testator’s intention as expressed in the second paragraph of the will. In determining what interest the testator intended to give his grandnieces the clause devising in fee simple must be considered in connection with the other parts of the will having reference to the same subject. It has frequently been held that if a testator in one part of his will devises an estate in fee simple and it appears from the language of subsequent parts of the will that he intended the devisee to take a smaller estate the first devise is limited accordingly. Where the subsequent provisions only affect qualities inseparable from the estate previously given they have no effect. Where, however, they show the nature of the estate and that what might be a fee under preceding terms of the will was intended to be an estate for life or for years they are to be given effect: 1 Jarman on Wills, 416; Sheets’ Estate, 52 Pa. 257; Urich v. Merkel, 81 Pa. 332. The testator in giving a fee “cannot strip it of its nature and properties.” He cannot withhold from such an estate qualities which the law recognizes as inseparable from it but he can restrict a devise expressed in general terms to a less estate. The authorities cited by the appellant are not contradictory of the conclusions herein expressed. In Rea v. Bell, 147 Pa. 118, the case turned on what the court held to be a restriction of the right of alienation. It was conceded that the devisee had a right to convey to Henry Rhea, Jr., and that the title so conveyed would be a title absolute in fee simple in the grantee. That part of the will which restrained any other alienation was void. That was a condition relative to the use, management or disposal of property distinctly given and it is restraints or limitations of such use, management or disposal which are forbidden: Philadelphia v. Girard, 45 Pa. 9. In Gram-ling v. Totheroh, 2 Woodward, 106, there was a residuary devise which carried the void legacy. In Dobbins’ Estate, 221 Pa. 249, also the void bequest passed under a codicil.
    The decree is affirmed.

      Error assigned was judgment of the Superior Court.

      Preston K. Erdman, with him E. Spencer Miller and Edwin O. Michener, for appellant.

      Eli Kirk Price, for appellee.

      February 27, 1911:
   Per Curiam,

The decree of the Superior Court is affirmed on the opinion of Judge Henderson.


author: Mr. Justice Potter,

text:
    Lafferty’s Estate.
    February 27, 1911:

      Courts — Judgments—Res adjudicata.

    The judgment of a proper court, being a sentence or conclusion of law upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the- consent of the parties, and is not only binding upon them, but upon courts and juries ever afterwards, as long as it shall remain in force and unreversed. Lafferty’s Est., 209 Pa. 44, reaffirmed.
    Argued Jan. 5, 1911.
    Appeal, No. 169, Jan. T., 1910, by the Philadelphia Trust, Safe Deposit & Insurance Company, executors of Rose E. Carr, deceased, from decree of O. C. Philadelphia Co., Oct. T., 1886, No. 587, dismissing exceptions to adjudication in estate of Charles Lafferty, deceased.
    Before Fell, C. J., Brown, Metrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Exceptions to adjudication.
    Before Lamorelle, J.
    The facts appear in the opinion of the Supreme Court and in Lafferty’s Estate, 209 Pa. 44.

      Error assigned was in dismissing exceptions to adjudication.

      E. 0. Michener, with him Jacob Snare, for appellant.

      Eli Kirk Price, with him Walter Willard and Loughlin & Bracken, for appellees.
   Opinion by

Mr. Justice Potter,

In Lafferty’s Estate, 209 Pa. 44, this court affirmed the decree of the orphans’ court, by which the share of the annuity to which under the will of her grandfather, Rose E. Carr would have been entitled if living, was awarded to her executor. That decision necessarily involved the determination of the question whether or not the will of Francis Lafferty was a valid exercise of the power of appointment given to him in the will of his father. After the lapse of some six years, precisely the same question, in the same estates, under the same wills, is again presented by the decree from which the present appeal is taken. The decision in Lafferty’s Estate, 209 Pa. 44, became the law of the case, and stands as such. It must be accepted as a final adjudication of the question involved. In Bolton v. Hey, 168 Pa. 418, Chief Justice Sterrett referring to a former ruling in the same case, says (p. 421): “That judgment thus became the law of the case, and having never been reversed or set aside, it is still the law of that case, notwithstanding a different rule of construction may have been since applied, with a different result, to contracts of like tenor and effect. As was said by Mr. Justice Kennedy in Marsh v. Pier, 4 Rawle, 273, 289, the 'judgment of a proper court, being a sentence or conclusion of law upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon courts and juries ever afterwards, as long as it shall remain in force and unreversed.’ ” This language is cited with approval by Mr. Justice Dean in Bell v. Allegheny County, 184 Pa. 296, and he adds the following from the same case (p. 306): “A contrary doctrine, as it seems to me, subjects the public peace and quiet to the will or neglect of individuals, and prefers the gratification of a litigious disposition on the part of suitors, to the preservation of the public tranquillity and happiness.” The same doctrine is reasserted in Allen v. Text Book Company, 201 Pa. 579, and in Pulaski Avenue, 220 Pa. 276.

The assignments of error are sustained, and the decree of the orphans’ court is reversed in so far as it awards income to the minor children of Rose E. Carr, and it is ordered that the said income be awarded to the executor or trustee, under the will of Rose E. Carr, deceased.


text:
    Brown v. Chester Traction Company, Appellant.

      Negligence — Railroad companies — Passenger—Case for jury.

    1. In an action by a passenger against a street railway company for personal injuries, the case is for the jury where it appears that at the time of the accident the plaintiff was seated at the end of a seat at the side of a crowded open summer car, on which passengers were standing on the running board; that she signaled the conductor to stop the car at a regular stopping place; that when she saw that her signal was not heeded, she turned her body towards the conductor with her left hand on the seat, and her right hand raised to attract his attention; that while she was in this position the car turned into a switch, at.a speed of fifteen miles a hour, so as to cause a severe jar that threw her from the car to the road, and threw down other passengers who were standing in the body of the car.

      Negligence — Damages—Evidence of injuries — Physician.
    2. In an accident case where it appeared that the plaintiff was well before the accident, that she had been severely injured, and had been an invalid ever since the accident, a physician may testify that he examined the plaintiff two years and four months after -the accident, that his examination disclosed an internal injury of long standing that -might have been caused by force or violence, and that in view of the history of the case, he believed it was caused by the accident.
    Argued Jan. 6, 1911.
    Appeal, No. 186, Jan. T., 1910, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1907, No. 4664, on verdict for plaintiff in case of Sara M. Brown v. Chester Traction Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      February 27, 1911:
    Trespass to recover damages for personal injuries. Before Audenried, J.
    At the trial it appeared that plaintiff was injured on the evening of July 6, 1907, at a point on defendant’s line between Norwood and Chester. The circumstances of the accident are narrated in the opinion of the Supreme Court.
    The jury returned a verdict for $10,000, which was subsequently reduced by remittitur to $4,000, upon which judgment was entered.

      Errors assigned were the admission of the evidence of the family physician, and the refusal of binding instructions for defendant.

      Chester N. Farr, Jr., with him John C. Bell, for appellant.

      Harry A. Mackey, with him Maurice V. Daniels, for ap-pellee.
   Per Curiam,

The plaintiff was a passenger on an open summer car, with a central passage-way and transverse seats, and sat at the end of a seat at the side of the car. The car was crowded and passengers were standing on the running boards and in the passageway. She signaled the conductor to stop the car at a regular stopping place. When she saw that her signal was unheeded, she turned her body towards the conductor with her left hand on the seat and her right hand raised to attract his attention. While she was in this position, the car turned into a switch so rapidly as to cause a severe jar that threw her from the car to the road. There was testimony that the car ran onto the switch at a speed of fifteen miles an hour, and that the sudden jar threw down passengers who were standing in the body off the car. Under this testimony she was entitled to go to the jury and the case was submitted with clear and adequate instructions.

The contention that there was error in allowing the plaintiff’s family physician to testify to a condition he observed by an examination two years and four months after the accident, cannot be sustained. It appeared from all the testimony that the plaintiff was well before the accident, that she had been severely injured, and that she had been an invalid ever since. The physician testified that his examination disclosed an internal injury of long standing, that might be caused by force or violence, and that in view of the history of the case, he believed it was caused by the accident. The jury was not left to speculate as to the cause of the injury; this testimony connected the present condition of the plaintiff with the cause alleged.

The judgment is affirmed.


text:
    Green, Appellant, v. Sumby.

      Equity — Fraud—Rescission of deed — Party in interest — Demurrer.
    1. A bill in equity filed by one who describes himself as the “heir at law and next of kin” of a deceased grantor, praying that a deed by which certain real estate was conveyed by the deceased to the defendant be declared void upon grounds of fraud and deceit, is demurrable where it further appears by the bill that the defendant is the devisee of the same property under a will probated and unappealed from.
    2. In such a case the only persons who may question the bona fides of the deed are those entitled to the real estate under the will.
    Argued Jan. 6, 1911.
    Appeal, No. 192, Jan. T., 1910, by plaintiff, from decree of C. P. No. 3, Phila. Co., Dec. Term, 1909, No. 3753J4 sustaining demurrer to bill in equity in case of Charles H. Green v. Elbert A. Sumby.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill for rescission and cancellation of two deeds.
    Demurrer to bill.

      The facts appear in the opinion of Ferguson, J., as follows:
    In this case a bill has been filed by one who describes himself as “the brother and only living heir at law and next of kin, so far as he knows, of Sarah E. Berry.” He seeks upon grounds of fraud and deceit to set aside a deed for certain real estate executed in October, 1908, by Sarah E. Berry to defendant. The bill also alleged that in August, 1908, by fraud and undue influence, the defendant persuaded Sarah E. Berry to publish a last will and testament in which the same real estate was devised to defendant. By the bill it appears that Sarah E. Berry died January 8, 1910, and the will has been admitted to probate by the register of wills. The bill prays that the deed above referred to be declared void. To the bill a demurrer has been filed. In our opinion the demurrer must be sustained. While the bill alleges that a will was fraudulently procured the will is not sought to be affected by the proceedings. This will was probated and stands unappealed from. Those who may rightfully claim the real estate under the will are the only persons who have any standing to impeach the deed. The complainant describes himself as heir at law and next of kin. As next of kin he does not necessarily have an interest in the estate and so long as a will stands probated and unappealed from there is no heir at law. Under our system a will admitted to probate may be impeached only by appeal from the register of wills. The rights of the parties are fixed by the will. The only persons therefore who may appear to question the bona fides of the deed are those who are entitled to the real estate under the will and the plaintiff nowhere asserts any interest in him in the real estate under the will.
    Demurrer is sustained.

      Error assigned was in sustaining demurrer and dismissing bill.

      John W. Parks, for appellant,
    cited: Wagner v. Fehr, 211 Pa. 435; Marie v. Garrison, 83 N. Y. 14; Thomas v. Thomas, 9 N. Y. App. Div. 487 (41 N. Y. Supp. 276).
    February 27, 1911:

      Thomas O. Haydock, Jr., for appellee.
    The probate of a will cannot be collaterally impeached: Cochran v. Young, 104 Pa. 333; Loy v. Kennedy, 1 W. & S. 396; Wilson v. Gaston, 92 Pa. 207; Stout v. Young, 217 Pa. 427; Stobert v. Smith, 189 Pa. 240; Young v. Fager, 200 Pa. 329; Wettach v. Horn, 201 Pa. 201.
   Per Curiam,

The decree is affirmed for the reasons stated in the opinion of Judge Ferguson.


text:
    Gilbert’s Estate.

      Wills — Construction—Trusts and trustees — Separate use trust — Sufficiency of words.

    A devise in a will of all the residue of an estate to three daughters “to their and each of their heirs, executors and assigns, to be for their and each of their support and maintenance, notwithstanding any. coverture, and not to be in any manner liable for the contraéis, debts or engagements, or subject to control of any of their said husbands,” creates a separate use trust for one of the daughters who is at the time' of the execution of the will in contemplation of marriage.
    Argued Jan. 6, 1911.
    Appeal, No. 206, Jan. T., 1910, by Laura A. Davis, from decree of O. C. Phila. Co., Jan. Term, 1887, No. 378, dismissing petition of Laura A.. Davis for revocation of the appointment of the Commonwealth Title Insurance Company as Trustee, in the Estate of Josiah Gilbert, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzis-ker, JJ.
    Affirmed.
    Petition for revocation of an appointment as trustee. Before Penrose, P. J.

      The facts appear in the opinion of the Supreme Court.

      Error assigned was in dismissing the petition.

      Frederick J. Shoyer, with him Henry Arronson, for appellant.
    The question whether the testator has created a separate use trust estate is always one of intention, but the burden is upon those claiming that he intended to create a separate use trust estate to show this, by language clearly indicating such intent: MacConnell v. Lindsay, 131 Pa. 476; Morrison v. Dollar Savings Bank, 36 Leg. Int. 215; Rank v. Rank, 120 Pa. 191; Ringe v. Kellner, 99 Pa. 460; Todd’s App., 24 Pa. 429.
    The failure to name a trustee, is an element to be taken into consideration: Todd’s App., 24 Pa. 429; Murray v. Lowrie, 208 Pa. 1; Chadwick v. Stroud, 27 Pa. C. C. Rep. 393; McClelland v. Floyd, 52 Pitts. L. J. 163.
    The creation of a sole and separate use trust estate being a question of intent, other cases of construction of wills may assist but not control in the conclusion to be reached in this one. It is to be observed that the same judge who delivered the opinion in Murray v. Lowrie, 208 Pa. 1, delivered the opinion in Holliday v. Ilively, 198 Pa. 335, and it is impossible to reconcile the opinions in the two cases, with reference to the propositions enunciated by Haines v. Ellis, 24 Pa. 253, and Ringe v. Kellner, 99 Pa. 460, and Bailey v. Allegheny National Bank, 104 Pa. 425.

      T. Walter Gilkyson, with him Martin H. Stutzbach for appellee.
    The burden is upon the appellant to show that in presenting her petition for a trustee she was clearly mistaken, that the will of her father did not create a separate use trust, and that the court should not have appointed a trustee. The question whether or not a separate use trust was created depends solely on the intent of the testator as expressed in his will: Scott v. Bryan, 194 Pa. 41; Wilbert’s Est., 166 Pa. 113; Pierce v. McKeehan,

      February 27, 1911:
    3 W. & S. 280; Jamison v. Brady, 6 S. & R. 465; Wilson v. Bryn Mawr Trust Co., 225 Pa. 139.
    Technical words such as “sole,]” “separate,” “own” or “exclusive” are not necessary for the creation of a separate use trust: Heck v. Clippenger, 5 Pa. 385; Steinmetz’s Est., 168-Pa. 171; Scott v. Bryan, 194 Pa. 41; Berg's Appeal, 166 Pa. 113. j
    The naming of a trustee or an express gift “in trust” is not necessary: MacConnell v. Lindsay, 131 Pa. 476; Wright v. Brown, 44 Pa. 224. ;
    The fact that an estate in fee is granted is iiñmaterial in determining whether or not a separate use trust has been created: Steinmetz’s Est., 3 Pa. Dist. Rep. 440; Wilbert’s Est., 166 Pa. 113.
   Opinion by

Mr. Justice Potter,

The question presented by this appeal, is whether a devise of all the residue of an estate to three daughters, “to their and each of their heirs, executors and assigns, to be for their and each of their support and maintenance, notwithstanding any coverture, and not to be in any manner liable for the contracts, debts or engagements, or subject to control of any of their said husbands,” creates a separate use trust for one of the daughters, who is at the time of the execution of the will, in contemplation of marriage.

, In the opinion of the orphans’ court, the language employed by the testator makes the exclusion of the marital rights of the husband a part of the gift to the daughter, and this appears so clearly that the validity of the trust must follow. When the purpose to create a separate use trust, is clear, no particular form of words is necessary: Steinmetz’s Est., 168 Pa. 171; Scott v. Bryan, 194 Pa. 41. Nor is it necessary that a trustee should be appointed, or active duties be imposed. It is only needful that the instrument clearly indicate the intention of the donor: Mac-Connell v. Lindsay, 131 Pa. 476, 482. Afterwards, in MacConnell v. Wright, 150 Pa. 275, it was held that when the language of the will in question was read in the light of the surrounding circumstances, the doctrine of the former case was inapplicable; but that the court stood by the doctrine of MacConnell v. Lindsay clearly appears from the opinion in Hays v. Leonard, 155 Pa. 474, 480.

That the court below was right in its construction of the will in the present case, we have no doubt. The language used impresses us as being quite sufficient to create a separate use trust. In Pennsylvania the estate subject to a separate use may be for life: Souder’s Est., 203 Pa. 293; or it may be an absolute estate: Shields v. McAuley, 205 Pa. 45. The words of the will before us, after an absolute gift to testator’s daughters, are: “to be for their and each of their support and maintenance, notwithstanding any coverture, and not to be in any manner liable for the contracts, debts or engagements, or subject to control of any of their said husbands.” The following words have been held to create a separate use trust: “For her own use:” Jamison v. Brady, 6 S. & R. 465. “To and for the only proper use and behoof of:” Thomas v. Folwell, 2 Whart. 11. “To be for her and her family’s use:” Heck v. Clippenger, 5 Pa. 385. “For her own proper use:” Snyder v. Snyder, 10 Pa. 423. “Wholly for her own use and benefit, and subject to her own control:” MacConnell v. Lindsay, 131 Pa. 476; approved in MacConnell v. Wright, 150 Pa. 275, as to the effect of the words standing alone, although, as noted above, in the light of extrinsic circumstances, it was held that a separate use trust was not created. We regard the words in the will of the testator, “to be for their support and maintenance” as being fully equivalent to those just cited, as “for their own use,” and “for their own use and benefit,” and the additional words “notwithstanding any coverture” make the intention of the testator to guard his daughter in the enjoyment of the estate he was providing for her, as clear as though he had used the technical expression “for her sole and separate use.” Any other construction would ignore the manifest purpose of the testator in qualifying the absolute gift to his daughter. Counsel for appellant cites and presses strongly upon us the case of Murray v. Lowrie, 208 Pa. 1, as authority against the construction adopted by the court below. But in addition to the point noted by Judge Penkose, that the exclusion of the marital rights of the husband is here wrought into the very fiber of the gift to the daughters, there is the additional fact that in the language under consideration in Murray v. Lowrie, supra, there was nothing equivalent to “for their and each of their support and maintenance notwithstanding any coverture.”

These English cases illustrate the question before us. In Darley v. Darley, 3 Atk. 398, an estate was given to a husband for the livelihood of his wife, and it was held that he was to be considered a trustee for her separate use. Lord Hardwick said (p. 399): “Technical words are not necessary to make it a separate trust, for the word livelihood is sufficient to show the intention of the giver that it should be for her sole and separate use.” Livelihood of course has the same meaning as “support and maintenance.” In Cape v. Cape, 2 Y. & C. Ex. 543, the words “support and maintenance” were construed. By a codicil to his will testator directed that a legacy of £300 should “be applied to the support and maintenance of the wife of my said son Henry and for the support and education of his children born in wedlock.” There were no children at the date of the will or of testator’s death. It was held by Baron Alderson (p. 546) that the wife took the legacy “absolutely to her separate use.” In Lee v. Prieaux, 3 Bro. Ch. *381, it was held that (syllabus) a “legacy to a feme covert, ‘her receipt to be a sufficient discharge to the executors,’ is equivalent with saying ‘to her sole and separate use.’” The master of the rolls refers (p. 318) to the words “notwithstanding her coverture” as sufficient to indicate an intention to create a separate use trust, and cites a manuscript case, Woodman v. Horsley, decided February 11, 1783, where the words “the wife’s receipt shall be a sufficient discharge, notwithstanding her coverture,” were held to constitute a trust for the wife.

And in our own case of Winthrop Company v. Clinton, 196 Pa. 472, the syllabus reads: “Testator gave his estate to his executors to pay the net income to his wife 'into her hands for her separate use and maintenance during all the term of her natural life,’ and after her decease to pay the net income to his son 'for his use and support for and during all the term of his natural life, and not to be liable to anticipation, and his receipt alone to be the sole discharge’ to the trustees. There was a gift over after the son’s death. Held, that a spendthrift trust was created in favor of the son.”

While the question whether there was a separate use trust for the widow did not arise, Mr. Chief Justice Green said (p. 475-76): “We think it will hardly be contended that this provision in favor of the widow was not adequately protected against the claims of any creditors she might have. . . . The word 'maintenance,’ in the wife’s case, speaks for itself, and needs no interpretation.” After considering various definitions of the word “support,” the opinion holds that “maintenance” and “support” have the same meaning, and. both indicate an intention to protect the estates given, in the case of the wife, by a separate use trust, and in that of the son, by a spendthrift trust.

In the present case, we are satisfied that the testator did intend to create a separate use trust for the benefit of his daughter. The assignments of error are dismissed, and the decree of the orphans’ court is affirmed.


author: Mb. Justice Potteb,

text:
    Hood, Appellant, v. Kensington National Bank.

      Banks and banking — Checks—Notice—Guardian and ward — Payment of check.

    The mere fact that a check is payable to a person, as guardian and is by him duly indorsed as such, imposes no duty upon a bank with whom the check is deposited for collection by one of its customers to question the title of its depositor to the check, and the ward upon coming of age cannot maintain an action against the bank in which the check was deposited and by which it was collected to recover the amount of the check.
    Argued Jan. 9, 1911.
    Appeal, No. 181, Jan. T., 1910, by plaintiffs, from order of C. P. No. 4, Phila. Co., June Term, 1908, No. 1336, discharging rule for judgment for want of a sufficient affidavit of defense in case of Fred R. Hood, to use of the Fidelity and Deposit Company of Maryland v. Kensington National Bank.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Mosch-zisker, JJ.
    Affirmed.
    Assumpsit for money received to plaintiff’s use. Before Atjdenried, J.
    On March 29, 1905 there was deposited with the Ken-sington National Bank, by the Hood Leather Company, a partnership of which Jules Gigon was a member, a check for $4,787.02, in form and with indorsements as follows:
    “No.-. Atlantic City, N. J., March 29th, 1905.
    “marine trust company
    “Pay to the order of Jules Gigon, Guardian for Fred R. Hood, minor, Forty seven hundred and eighty seven .02-100 Dollars. $4787.02-100
    “Estate of James Hood,
    “J. Harry Lyons, Exctor.
    “Indorsed.
    “Jules Gigon, Guardian for Fred R. Hood. For deposit only to the credit of Hood Leather Company. The Kensington Nat’l Bank, Philada., Pa. Prior Indorse-ments Guaranteed.
    W. W. Price, Cashier.”
    The present suit was brought by the ward to use of the guardian’s surety to recover the amount of this check. The bank filed the following affidavit of defense:
    On March 29, 1905, the Hood Leather Company, which was a leather manufacturing company in the city of Philadelphia, was a depositor in said Kensington National Bank, and at or about that time deposited to the credit of said Hood Leather Company the check for $4,787.02, a copy of which is set forth in plaintiff’s statement.
    At the time of said deposit there was no indebtedness due by said company to said bank, but said bank held promissory notes of said company, discounted in the usual course of business, and maturing from time to time thereafter.
    Said bank had no notice that the said funds belonged to said Fred It. Hood, although the check was drawn to his guardian. The check was received in the usual course of business from said Hood Leather Company, was credited to its account, and was, with other moneys in its account, thereafter drawn by checks from time to time by said Hood Leather Company.
    Plaintiffs’ rule for judgment for want of sufficient affidavit of defense was discharged.

      Error assigned was in dismissing the rule.

      Victor Frey, with him Augustus Trask Ashton, for appellants,
    cited: Duckett v. Mechanic’s Bank, 86 Md. 400 (38 Atl. Repr. 983); Kerr v. People’s Bank, 158 Pa. 305; Frazier v. Erie Bank, 8 W. & S. 18; McDermott v. Miners’ Sav. Bank, 100 Pa. 285; First Nat. Bank v. Mason, 95 Pa. 113.

      February 27, 1911:

      E. Cooper Shapley, for appellee,
    cited: Safe Deposit & •Trust Co. v. Diamond Nat. Bank, 194 Pa. 334; Farmers’ & Mechanics’ Nat. Bank v. King, 57 Pa. 202; First Nat. Bank v. Mason, 95 Pa. 113.
   Opinion by

Mb. Justice Potteb,

The appellant here complains of the action of the court below in discharging a ride for judgment for want of a sufficient affidavit of defense. In the plaintiff’s statement of claim he sets forth that one Jules Gigon was the guardian of his estate, and that as such he received a check upon the Marine Trust Company of Atlantic City, N. J. The said Jules Gigon indorsed the said check, and turned it over to the Hood Leather Company. The latter deposited the check for collection in the defendant bank, and received credit for the proceeds. The theory of the plaintiff seems to be that because a check came to the bank in the regular course of business, which was payable to a certain person as guardian, the bank was not at liberty to accept the check from anyone else, although regularly indorsed by the payee. This theory is far fetched, and is without any reasonable basis. The bank was under no duty to supervise the acts of Gigon as guardian, nor was there anything in the transaction to be criticised in so far as the bank was concerned. It was something entirely consistent with the ordinary and proper conduct of business. Gigon may have used the Hood Leather Company as a means of collecting the check. It was at most merely the equivalent of his going to the bank and obtaining the cash, and paying that over to the leather company. Whatever reason Gigon may have had for transacting the business in the precise manner in which he did it, was his own. The bank was not dealing with him in the matter but was concerned only with its own customer, the Hood Leather Company, which came to it with a check drawn upon a bank in another city and state, regularly indorsed, which it was requested to collect. There was nothing in the occurrence to arouse suspicion, or call for comment or question, upon the part of the defendant bank. If there was any misuse of the funds by the guardian, it was, so far as this record goes, something of which the defendant bank had no knowledge, and with which it had nothing to do.

The rule for judgment was most properly discharged, and the order of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Ingber, Appellant, v. Tradesmen’s National Bank.

      Banks and banking — Loans—Collateral security — Certified checks— Insolvency — Executors and administrators — Decedents’ estates.

    In an action by the executors of an insolvent decedent against a bank to recover an alleged balance on deposit in decedent’s name, judgment is properly directed in favor of the defendant where it appears that the decedent, who carried an active account with the bank and desired to make some loans, entered into an agreement with the bank in which it was stipulated that he would draw a check upon his account for the amount in suit, which check should be certified by the bank, properly indorsed, and then be retained by the bank as collateral for any indebtedness of the maker to the bank, and the uncontradicted testimony shows that upon the very day when the check was certified it was immediately charged upon the books of the bank against the account of the decedent, in whose lifetime the books were balanced showing the charge thus made, and that at the time of decedent’s death his own bank book showed the appropriation by the bank of the amount for which the certified check was drawn.
    Argued Jan. 9, 1911.
    Appeal, No. 224, Jan. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1908, No. 2133, on verdict for defendant in case of David M. Ingber and Morris Richman, executors of Jacob M. Ingber, deceased, v. Tradesmen’s National Bank.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit for balance of deposit. Before Wiltbank, J.
    The facts appear in the opinion of the Supreme Court.

      The letters which accompanied the certified checks in each case were both of the same import, as follows:
    “Tradesmen’s National Bank, Philadelphia.
    “Dear Sirs: With reference to our check, No. 1231, dated January 18th, 1908, for $1500, which was certified by you January 18th, 1908, and which is now held by you, with our consent, as general collateral for our account and for any indebtedness of ours to the bank, we hereby authorize you to apply the same at any time you may desire towards the liquidation of any notes discounted by you for our account at maturity thereof, or prior thereto as you may deem fit.
    “Yours very truly,
    “Jacob M. Ingber & Company.”
    The jury rendered a verdict for the defendant in pursuance of binding instructions given by the court.

      Error assigned was in giving binding instructions for defendant.

      Julius C. Levi, of Bamberger, Levi & Mandel, for appellants.
    In a suit by the personal representative of a decedent, against a bank in which the decedent was a depositor, to recover the amount of the deposit remaining with the defendant at the time of decedent’s death, the bank cannot defend upon the ground of a set-off which was not due at the time of the decedent’s death, it appearing that at the time of his death the decedent was insolvent: Bosler v. Exchange Bank, 4 Pa. 32; Farmers’ & Mechanics’ Bank’s App., 48 Pa. 57; Shoemaker v. Kensing-ton Nat. Bank, 9 W. N. C. 420.
    A check cannot be treated as collateral security for the payment of an obligation of the drawer of the check: International Trust Co. v. Union Cattle Co., 3 Wyoming 803 (31 Pac. Repr. 308); Atlantic F. & M. Ins. Co. v. Boies, 13 N. Y. Superior Ct. 583; Steinharter v. Coving-ton City Nat. Bank, 10 Ky. Law Repr. 359; Third Nat. Bank of Boston v. Eastern R. R. Co., 122 Mass. 240; People v. Remington, 54 Hun, 480 (8 N. Y. Supp. 31); Waddell-Entz Co., 67 Conn. 324 (35 Atl. Repr. 257).
    February 27, 1911:

      Charles Biddle, with him Bayard Henry, for appellee,
    cited: First Nat. Bank of Mt. Joy v. Gish, 72 Pa. 13; Fisher v. Tradesmen’s Nat. Bank, 12 C. C. A. 409 (64 Fed. Repr. 706); Spott’s Est., 156 Pa. 281; Chase v. Petroleum Bank, 66 Pa. 169; Hemphill v. Yerkes, 132 Pa. 545; Taylor’s Est., 154 Pa. 183.
   Opinion bt

Mr. Justice Elkin,

Appellants are the executors under the will of decedent who died insolvent. This suit was brought to recover the balance alleged to be deposited in the bank of appellee with which institution the decedent kept his bank account. At the trial the learned court below directed a verdict for defendant and judgment was accordingly entered. It is contended that under the facts the trial judge erred in giving binding instructions to the jury. The theory upon which this claim is predicated, is that at the date of the death of the insolvent decedent he had a balance to his credit in the bank of $3,725.80 and that this balance was an asset of the estate to be accounted for by the executors to the creditors. This would be true if in fact there was such a balance in the bank at the death of decedent. But this fact is denied and the bank books show that the balance was only $725.80, which amount it is admitted was paid by the bank to the appellants. The controversy arises out of the appropriation of $3,000 under the following circumstances. The decedent carried an active account with the bank and desired to make some loans. He entered into an agreement with the bank in which it was stipulated that he would draw a check upon his account for $1,500, which check should be certified by the bank, properly indorsed and then be retained by the bank as collateral for any indebtedness of the maker to the bank. The evidence shows that this arrangement was carried out. At a subsequent date an agreement of the same import, involving the same amount, and including the same terms was made and carried out. The testimony of the cashier, which is not contradicted, conclusively shows that upon the very day when each check was certified, it was immediately charged upon the books of the bank against the account of decedent in whose lifetime the books were balanced showing the charges thus made. At the time of decedent’s death his own bank book showed the appropriation by the bank of the respective amounts for which the certified checks were drawn. These transactions were carried out in strict compliance with the terms of the agreements entered into, and we can see no reason in law or equity, why an agreement of this character, lawful in its terms and properly made in the course of business dealings, should be disturbed. The bank became liable for the payment of the check as soon as it was certified, and very properly charged the account of the maker with the amount of each check as soon as its liability for payment attached. The fact that the bank took this method of securing the payment of existing obligations or of indebtedness to be incurred does not change the nature of the transaction or the liability of the contracting parties. If authority need be cited for this proposition, it may be found in our own cases. See Chase v. Petroleum Bank, 66 Pa. 169; First National Bank v. Gish’s Assignees, 72 Pa. 13; Hemphill v. Yerkes, 132 Pa. 545; Taylor’s Est., 154 Pa. 183; Spotts’ Est., 156 Pa. 281.

Judgment affirmed.


text:
    Williamsport National Bank to use v. Kreamer, Appellant.
    February 27, 1911:

      Judgments — Opening judgment — Bules of court — Practice, C. P.

    An order opening a judgment of non pros, entered under rules of court for failure to file a statement of claim within one year will not be reversed on appeal where it appears that the rules of court under which the judgment was entered provide that judgments by default may be opened “ at the discretion of the court, when deemed necessary for the purpose of justice.”
    Argued Jan. 9, 1911.
    Appeal, No. 286, Jan. T., 1910, by defendant, from order of C. P. No. 3, Philadelphia Co., March T., 1909, No. 4080, opening judgment of non pros, in case of Williamsport National Bank, to the use of John H. Hunt v. C. F. Kreamer.
    Before Feul, C. J., Beoto, Mestrezat, Potter, Elkin and Moschzis-kes, JJ.
    Affirmed.
    Rule to strike off judgment of non pros.
    The opinion of the Supreme Court states the case.

      Error assigned was in opening judgment.

      J. Frederick Martin, with him O. Von Phul Jones, for appellant.

      Boyd Lee Spahr, with him William Russell Deemer and Ellis Ames Ballard, for appellee.
   Per Curiam,

This appeal is from an order opening a judgment of non pros., entered under the rules of court for the failure of the plaintiff to file a statement of claim within one year of the return day of the writ. The judgment was entered without notice on the first day after the expiration of the year. The statute of limitations would be a bar to a new action on the claim. The rules of court under which the judgment was entered, provide that “Judgments by default may be set aside or opened at the discretion of the court, when deemed necessary for the purpose of justice,” and that the court may enlarge the time to declare or plead on cause shown. There is therefore, no question of the construction of a rule of court, for there is nothing to construe, nor of the violation by a court of its rule for there was no violation. The matter was within the discretion of the court.

The order is affirmed at the cost of the appellant.


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    Campbell, Appellant, v. Philadelphia.

      Road law — Change of grade — Damages—Leasehold—Evidence.
    1. In an action by a tenant to recover damages for injury to Ms leasehold resulting from the change of grade of a city street, a nonsuit is properly entered where the plaintiff produces no competent testimony to prove any difference in value of the leasehold before and after the change of grade.
    2. In such a case witnesses are not qualified to testify, whose only knowledge on the subject was obtained by an examination of the reports of road juries, and the awards made to tenants of other properties in the vicinity, and whose opinions are based wholly or in part on their knowledge of these awards.
    3. Proof of the cost of the tenant’s fixtures are clearly inadmissible on the question of damages.
    Argued Jan. 9, 1911.
    Appeal, No. 291, Jan. T., 1910, by plaintiff, from judgment of nonsuit of C. P. No. 4, Philadelphia Co., Dec. T., 1884, No. 219, in case of John Campbell v. Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzis-ker, JJ.
    Affirmed.
    Trespass to recover damages resulting from change of grade. Before Audendried, J.

      February 27, 1911:
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Joseph W. Shannon, for appellant.

      William Gray Knowles, assistant city solicitor, with him Henry Johns Gibbons, assistant city solicitor, and James Alcorn, city solicitor, for appellee.
   Per Curiam,

This appeal is from a judgment of nonsuit entered in an action brought by a tenant to recover damages for the injury to his leasehold by the change of grade of a city street. A nonsuit was entered because of the failure to prove any damages, and the assignments of error relate to the rejection of offers of testimony. The plaintiff had not been deprived of possession but the access to his property had been interfered with and he moved before the termination of his lease and during the course of the improvement. Proof of the cost of his fixtures was clearly inadmissible and on the proper test of the measure of damages, the difference in value of his leasehold estate before and after the change of grade, his witnesses were not qualified to testify. They had no special knowledge of the subject and what knowledge they had was obtained by an examination of the reports of road juries, and the awards made to tenants of other properties in the vicinity and their opinions were based wholly or in part on their knowledge of these awards. This would have been the use of the opinion of other persons in relation to other property.

The judgment is affirmed.


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    Rowland v. Martin, Appellant.

      Deeds — Construction—Spendthrift trusts — Trusts and trustees.

    A man and his wife conveyed certain real estate by deed in trust for their own use for life and upon the death of the survivor “in trust to part and divide said real estate into as many parts as there are children or issue” of the wife “then living by representation, and the share of such of her male children or male issue to grant and convey unto them, their heirs and assigns in severalty as tenants in common, and not as joint tenants, freed, clear and discharged of and from all trusts, uses and limitations whatsoever, and provided, however, that in the event of any such child or children or issue of any deceased child or children being under the age of twenty-one years at the time of the decease of ... . the survivor .... then in trust to collect and receive the rents, issues, income and profits of the share of such minor child .... and to pay over the same unto such person or persons as [the wife or surviving husband] .... shall nominate and appoint to receive the same, whose receipts shall be an effectual discharge for all moneys so paid to them by the trustee or his successors in the trust, said moneys to be applied by such person or persons for the maintenance, education and support of such minor child or children or issue of any such child or children, until the said minor child of said Helen Moore, or issue of any deceased child or children being minors, shall attain the age of twenty-one years, such shares óf her said children to be enjoyed by them without being liable or subject to any of their debts or engagements, present or future.” Held, that as to those male children who were twenty-one years of age at the death of the surviving parent the estate would vest absolutely and in fee, free, clear and discharged of and from all trusts, uses and limitations whatsoever.
    Submitted Jan. 9, 1911.
    Appeal, No. 261, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1909, No. 2622, for plaintiff on case stated in case of Charles Rowland v. Frank P. Martin.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketability of title.
    The facts appear in the opinion of Magill, J., as follows.
    January 15, 1876, Leopold Moore and Helen Moore, his wife, by deed recorded at Philadelphia in Deed Book D. H. L., No. 14, page 64, etc., granted and conveyed certain .real estate, including that described in sec. 6 of the case stated, to Frederick Flammer in trust for the use and benefit of said Leopold Moore and Helen, his wife, and the survivor of them in such manner as not to be liable for the debts or engagements of them, or either of them, and upon the death of the survivor “In trust to part and divide said real estate into as many parts as there are children or issue of Helen Moore then living by representation, and the share of such of her male children, or male issue to grant and convey unto them, their heirs and assigns in severalty as tenants in common, and not as joint tenants, freed, clear and discharged of and from all trusts, uses and limitations whatsoever, and provided, however, that in the event of any such child or children or issue of any deceased child or children being under the age of twenty-one years at the time of the decease of the said Helen Moore and Leopold Moore, and the survivor of them, then in trust to collect and receive the rents, issues, income and profits of the share of such minor child or children or issue being minors of such deceased child or children, and to pay over the same unto such person or persons as she, the said Helen Moore, during her life time (or the said Leopold Moore after her decease) by last will and testament, or any writing in the nature thereof under hand and seal duly attested by two or more creditable witnesses, notwithstanding the coverture of her, the said Helen Moore, or whether she be covered or sole, shall nominate and appoint to receive the same, whose receipts shall be an effectual discharge for all moneys so paid to them by the trustee or his successors in the trust, said moneys to be applied by such person or persons for the maintenance, education and support of such minor child or children or issue of any such child or children until the said minor child of said Helen Moore, or issue of any deceased child or children being minors, shall attain the age of twenty-one years, such shares of her said children to be enjoyed by them without being liable or subject to any of their debts or engagements, present or future.”
    Leopold Moore, one of the grantors, died January 17, 1907. Helen Moore, the other grantor, survives him as his widow. There were also surviving at the death of Leopold Moore several children, and also grandchildren, issue of deceased children. One of the children of the grantor surviving at the death of Leopold Moore is George W. Moore, a son born on March 24, 1853, and therefore past twenty-one years of age at the death of his father.
    May 26, 1909, Charles W. Rowland obtained judgment in the sum of $4,350 against the said George W. Moore, son of the grantors, upon which judgment execution was issued, and levy made upon all the estate, right, title and interest of said George W. Moore in two certain pieces of real estate particularly described in sec. 6 of the case stated, being a part of the property conveyed by the above mentioned deed of trust, and on August 2, 1909, the sheriff of Philadelphia county sold, and by deed dated August 9, 1909, conveyed, unto Charles Rowland, the plaintiff, all the right, title and interest of the said George W. Moore in and to the said premises.
    August 12, 1909, plaintiff entered into an agreement with the defendant to sell to him all the estate, right, title and interest conveyed by the sheriff of Philadelphia to him, the plaintiff, free and clear of any spendthrift trust or other trust whatsoever, for the sum of $4,500, and the defendant agreed to purchase the said estate, right, title and interest free and clear of any spendthrift trust, or other trust whatsoever, for said sum.
    As shown by paragraph ten of case stated as amended by agreement of counsel filed March 1, 1910, Charles Rowland, the plaintiff, within the period designated by the agreement of counsel, tendered to Frank P. Martin, the defendant, a good and sufficient deed of conveyance of the estate, right, title and interest of the said Charles Rowland of, in and to the premises in question, being the same estate, right, title and interest which was of the said George W. Moore, under the deed of trust executed by Leopold Moore and wife, above referred to, which was taken in execution and sold by the sheriff to the said Charles Rowland as the property of the said George W. Moore. Defendant has declined to accept said deed or to pay the purchase money agreed upon, alleging that the interest of said George W. Moore in said property was subject to a spendthrift trust under the provisions of the deed of trust above mentioned.
    By supplemental agreement or stipulation filed December 3, 1909, after arguments, it is agreed by counsel for the parties that the interest of George W. Moore, under the deed of trust by Leopold Moore and wife, to Frederick Flammer, is a contingent interest which will not vest, if at all, until the death of the life tenants, and that the agreement of sale was entered into under such an understanding of the deed.
    It is contended by counsel for defendant that the words of the deed, “Such shares of her said children to be enjoyed by them without being liable or subject to any of their debts or engagements, present or future,” creates a spendthrift trust, and this is the only question to be decided in the case.
    In support of his position counsel for defendant cites and relies upon Beck’s Estate, 133 Pa. 51; Minnich’s Estate, 206 Pa. 405, and Rockhill’s Estate, 29 Pa. Superior Ct. 28.
    Again referring to the deed of trust we find that upon the death of the survivor of the grantors, the estate conveyed by the deed is in trust to part and divide said real estate into as many parts as there are children or issue of Helen Moore, then living, by representation, and the share of such of her male children or male issue of any deceased child or children, to grant and convey unto them, their heirs and assigns forever in severalty, as tenants in common and not as joint tenants, freed, clear and discharged of and from all trusts, uses and limitations whatsoever.

      It cannot be questioned that these words standing alone convey to the male issue surviving at the death of Helen Moore, the present surviving grantor, a title to a proportionate interest in said real estate in fee. The only question is whether the words, “Such shares of her said children to be enjoyed by them without being liable or subject to any of their debts or engagements present or future,” limits the grant and creates a spendthrift trust. We are clearly of the opinion that such was not the intention of the grantors, but that the said limitation relates only to the estate to be held in trust for that class of issue referred to as being, “Under the age of twenty-one years at the time of the decease of the said Helen Moore, and Leopold Moore, and the survivor of them,” and that as to those male children or issue of deceased children who are twenty-one years of age at the death of said Helen Moore, the estate will vest absolutely and in fee, free, clear and discharged of and from all 'trusts, uses and limitations whatsoever, which was clearly the intention of the grantors.
    We are therefore of opinion that George W. Moore, being now past the age of twenty-one years, if he shall survive his mother, would take his proportionate interest in the real estate in question under said deed of trust in fee, and clear of any spendthrift trust or other trust whatsoever; and that his interest in the real estate in question, having passed through sheriff’s sale to the plaintiff the tender of a deed by the plaintiff to the defendant for the premises in question as set forth in paragraph ten of the case stated as amended, was a compliance by the plaintiff with the terms of the agreement of sale entered into between him and the defendant on August 12/1909.
    For the reasons here stated judgment is entered for the plaintiff and against the defendant on the case stated for the sum of $4,500, with interest from September 12, 1909.

      Error assigned was the judgment of the court.

      February 27, 1911.

      Clarence E. Kuemmerle, and Joseph M. Smith, for appellant.

      Clinton Rogers Woodruff, and William D. Neilson, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of Judge Magill.


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    Sutton v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Passengers—Presumption — Slippery condition of step — Evidence.
    1. In an action by a passenger to recover damages against a common carrier for personal injuries sustained while alighting from a train, no presumption of negligence arises from the presence on the steps of the car of a thin layer of ice. The presumption only arises where the evidence shows that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation.
    2. In such a case the question of the defendant’s negligence should be submitted to the jury where there is evidence that the ice had accumulated on the step on a prior day, or at an earlier hour of the day of the accident, and had been negligently permitted to remain on the step when proper inspection would have discovered it.
    Argued Jan. 10, 1911.
    Appeal, No. 143, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,258, on verdict for plaintiff in case of W. Henry Sutton v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Martin, P. J.

      ' At the trial it appeared that the plaintiff was injured on January 26, 1904, while alighting from a car of one of defendant’s trains at Broad street station in the city of Philadelphia.
    The facts connected with the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000.

      Errors assigned were (1) affirmance of plaintiff’s fourth point quoted in the opinion of the Supreme Court; (2) refusal of binding instructions for defendant, and (3) refusal to enter judgment for defendant n. o. v.

      John Hampton Barnes, for appellant.
    No presumption of negligence by the defendant arises from the evidence in the case: Fearn v. Ferry Co., 143 Pa. 122; Thomas v. R. R. Co., 148 Pa. 180; Bernhardt v. R. R. Co., 159 Pa. 360; Green v. R. R. Co., 214 Pa. 240.
    The court should have given binding instructions for the defendant or should have entered judgment for the defendant non obstante veredicto: Fearn v. Ferry Co., 143 Pa. 122; Palmer v. Penna. R. R. Co., Ill N. Y. 488 (18 N. E. Repr. 859); Pittsburg, C., C. & St. L. Ry. Co. v. Aldridge, 27 Ind. App. 498 (61 N. E. Repr. 741); Cromley v. R. R. Co., 211 Pa. 429; Blotz v. R. R. Co., 212 Pa. 154; Lonzer v. R. R. Co., 196 Pa. 610.

      Owen J. Roberts, with him Isaac C. Button, for appellee.
    —The mere happening of an injurious accident, if it arises from something connected with the means of transportation, or from something over which the carrier has control, raises a presumption of negligence which the defendant is bound to overcome: Whitehouse v. Railways Co., 36 Pa. Superior Ct. 581.
    While it is admitted that a railroad company is not bound to exercise a supervision over every part of each of its cars at every moment the same is in use, but only to reasonably inspect a car for the journey, nevertheless, when an unusual circumstance, such as the formation of ice on the front platform of a car, was brought to the notice of the conductor in charge of the train at the distance of twelve or thirteen miles west of Philadelphia, when that conductor knew that at six or eight stations the platform would be used by passengers going in and out of the train, it is submitted that it was his duty to take some means of rendering that platform safe: Neslie v. Second & Third Sts. Pass. Ry. Co., 113 Pa. 300.
    February 27, 1911:
    The case was for the Jury: Rathgebe v. R. R. Co., 179 Pa. 31; Louisville, etc., R. R. Co. v. Cockerel, 17 Ky. Law Repr. 1037 (33 S. W. Repr. 407); Foster v. Old Colony Ry. Co., 182 Mass. 378 (65 N. E. Repr. 795); Maxfield v. Maine Central R. R. Co., 100 Maine, 79 (60 Atl. Repr. 710).
   Opinion by

Mr. Justice Elkin,

Appellee while alighting from the front platform of the first car of the train on which he was a passenger, slipped on a thin layer of ice which covered, or partially covered, one of the steps. In the fall that resulted from this slippery condition he received the injuries for which damages are sought to be recovered in this action. The assignments of error raise two questions, namely, did the presumption of negligence arise under the facts of the case, and if no such presumption did arise were the proofs offered at the trial sufficient to submit to the jury on the question of negligence. It is contended that the learned trial judge erred in affirming the fourth point submitted by the plaintiff. This point asked the court to instruct the jury that “It is the duty of the defendant to provide safe cars and appliances for the accommodation of its passengers, and if the plaintiff was injured by reason of the unsafe condition of the platform of the car, a presumption of negligence arises which places the burden upon the defendant to explain the occurrence in a way not consistent with its negligence.” This point would have correctly stated the law if the injuries complained of had resulted from failure to provide safe cars and appliances for the accommodation of passengers, but the facts do nót warrant the application of the rule. There was no evidence that the steps, or platform, or car, or appliances ordinarily-used in transportation, were improperly constructed or maintained, or that they were in a defective condition at the time of the accident. The presumption in such cases only shifts the burden of proof and does not arise unless the evidence shows that the injury complained of resulted from the breaking of machinery, collision, derailment of cars, or something improper or unsafe in the conduct of the business or in the appliances of transportation: Thomas v. Railroad Company, 148 Pa. 180; Ginn v. Railroad Co., 220 Pa. 552. There was no such evidence in the case at' bar. No attempt was made to show defective construction or negligent maintenance of the equipment of the cars or other appliances of transportation. Under these circumstances we are constrained to hold that the presumption relied on had no application.

■ It is argued that the thin layer of ice on the step of the platform made its condition defective within the meaning óf the rule. No authority is cited to sustain this contention and a consideration of our own cases leads to a different conclusion. To hold that ice formed on the step of a platform as the result of a storm, is part of a car, or of the machinery and appliances of transportation, would do violence to the meaning of words. While the precise question has not been determined by this court, there are a number of cases in which it has been practically ruled. In Fearn v. Ferry Company, 143 Pa. 122, this court in passing upon the question raised under the facts of that case, said, “In such cases, the presumption of negligence arising from the mere fact that one is injured while a passenger in the care of a carrier company, has no application.” To the same general effect are Hayman v. Railroad Company, 118 Pa. 508; Farley v. Traction Company, 132 Pa. 58, and Bernhardt v. Railroad Company, 159 Pa. 360. We’ therefore hold that .it was error to affirm plain--. tiff’s fourth point and that the first assignment of error must be sustained.

We, however, do not agree with the contention of appellant that a verdict should have been directed for the defendant or that judgment non obstante veredicto should have been entered upon the whole record. It is a close case but as we read the testimony the inference of negligence might be reasonably drawn by the jury from the facts. At least it was for the jury to say whether taking into consideration all the facts, appellant knew, or should have known by proper inspection, of the accumulation of ice on the steps and had been negligent in not sooner removing it, or in taking some measures to protect passengers from slipping while alighting from the car. All of this depends very largely upon how long the slippery condition had existed. This is a question of fact and not of presumption. There is no dispute as to the ice being on the step and the question for determination is whether it had formed during a snowstorm through which the train was passing, in which event no liability would attach to the transportation company, or had accumulated on a prior day or at an earlier hour and had been negligently permitted to remain on the step when proper inspection would have discovered it. The evidence is contradictory as to the condition of the weather on the day of the accident. There is some testimony that the day was cloudy but that “it had not been raining or snowing” on the morning of the accident. It is true there was the testimony of the weather forecaster from which the inference might be drawn that a snowstorm had been in progress in the region traversed by the train on the morning in question. At most this presented a conflict of testimony as to an important fact which as a general rule is for the jury. Again, we are not convinced the evidence established the fact that no ice was on the step when the train left Paoli. It is not denied that the ice was on the step when the train reached Broad street station, and if the jury should find as a fact that it had not passed through a snowstorm that morning, it would be a fair inference that the ice had accumulated at some prior time. If so, the inference of negligence in permitting the ice to remain on the steps for an undue length of time could be reasonably drawn by, the jury. The facts developed at the trial are meager and unsatisfactory. They are not so clear as to warrant a court in saying as a matter of law that no inference of negligence could be drawn, and we are of opinion they are sufficient to be submitted to a jury for the purpose of having the question of negligence determined. The burden of proof is on the plaintiff to establish the negligence relied on to sustain a recovery and he must make out his case without the aid of the presumption, the benefit of which was given him at the trial in the court below. When the case is again tried all the facts relating to the weather conditions on the morning of the accident and bearing upon the length of time the ice was permitted to remain on the step, as well as all other facts tending to prove or disprove negligence, should be more clearly established in order that the court and jury may have more accurate information as to the real merits of the case.

Judgment reversed and a venire facias de novo awarded.