text:
    Sulkin v. Gilbert, Appellant.

      Vendor and vendee — Fraudulent misrepresentations — Action for purchase money — Evidence—Province of court and jury.

    In an action by a vendor of real estate to recover purchase money, where the defendant sets up as a defense alleged misrepresentations of the vendor as to the location of the land with respect to a stream of water not included in the premises bargained for, and supports such defense by his own testimony, which is full, clear and explicit, the case must be submitted to the jury, although the defendant's testimony is not supported by any other witness. In such a case, however, the defendant must show that he was in fact misled by such misrepresentations, and if he fails to do so, it is proper to give binding instructions in favor of the plaintiff.
    Argued March 13, 1907.
    Appeal, No. 3, Jan. T., 1907, by defendant, from judgment of O. P. Monroe Co., Eeb. T., 1905, No. 19, on verdict for plaintiff in case of Louis Sulkin v. William A. Gilbert.
    Before Eell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover purchase money for land. Before Staples, P. J.
    The court charged in part as follows :
    William A. Gilbert, the defendant, alleges that the fraud committed upon him in this case by the plaintiff was, that at or about the time the negotiations took place relative to the execution of this contract, a blue print was present, the court does not remember whether it was brought there by the plaintiff, or how it got there, but at any rate it was there with the plaintiff and the defendant, and that the defendant asked the plaintiff whether the blue print correctly represented the land to be conveyed, and especially in this respect, as to the distance from the water to an alley on Harrison street, as the court remembers it, about ninety feet, and that the plaintiff said that it did. As the court remembers it, that conversation is alleged to have taken place in the morning, and in the afternoon the plaintiff appeared with the agreement or contract in question, and at the time of its execution this same blue pi’int was there, and that the defendant substantially asked the same question with regard to the location of the creek or water, and that the plaintiff again stated that it fairly represented the situation.
    The defendant claims that he wanted this tract for certain particular purposes and especially with reference to the water, and that he afterwards learned that the blue print did not represent truly the location of the water with reference to the contract, and that instead of its being ninety feet from the water to the point on Harrison street, namely, the alley, that there was practically no land there.
    We say to you, gentlemen of the jury, that if that testimony was properly corroborated and believed by you, it would be a good defense to a recovery in this action, but as the court remembers the testimony, there was substantially no corroboration of the testimony of the defendant in this case as to this representation relative to the situation of the water in reference to the blue print, and the distance as therein mentioned. There was some little evidence with regard to the blue print, that it was seen in the office when Mr. Sulkin was there and there, was some evidence about some talk had about distances, but as the court remembers it there was no evidence whatever as to the alleged misrepresentation by the plaintiff as to the situation of the water with reference to Harrison street or the alley that crossed Harrison street.
    Crossman testified that about a week after this agreement was made he went down upon this tract of land with Mr. Gilbert and with Sulkin, the plaintiff, and that while some measurements were being taken there, that Mr. Gilbert said to Mr. Sulkin, “ the land is not here; ” that Sulkin at first made no reply, or words to that effect, and that when Mr. Gilbert again repeated it, Sulkin said, “ I see it is not.” The court holds that this is insufficient in itself to constitute a corroboratiou. It is too indefinite and uncertain, and it is the opinion of the coui’t in this case that there was practically or substantially no corroboration of the defendant’s testimony with regard to this allegation or assertion of fraud, namely, misrepresentation by the plaintiff.
    Plaintiff flatly denies the statements by the defendant, and under this condition of the testimony, the defendant relying upon the allegation of fraud to prevent recovery, and this allegation of fraud being strictly confined to his own testimony, which is flatly denied bjr the plaintiff, the court holds it is insufficient to prevent a recovery in this case, and especially so, gentlemen of the jury, when there is taken into consideration the fact that this blue print was not attached or made part of the contract, although according to Mr. Gilbert’s story, it was there at the time the'contract was made; that no reference was made to the blue print in the contract which was executed by them, although if Mr. Gilbert’s story were believed, the blue print was there, and its reference to the tract of land was talked over. This reference of the court to the blue print refers to this particular matter which it was alleged was the misrepresentation or fraud in connection therewith.
    [This additional circumstance is taken into consideration with regard to ascertaining whether the measure of proof were high enough to avoid a recovery of this executed contract, and that it is a fact that this piece of land was within a very short distance of the mill where the contract was talked about, and where the contract was finally executed, and that it was not a matter so very difficult to ascertain whether the statement, if made, were true, relative to the creek by measurement as appears by the evidence in this case to the effect that on August 21 a measurement was made,- and it was found that the alleged statement was untrue.] [5]
    A written contract under seal, gentlemen of the jury, is looked upon as a solemn act, and in order that persons who do business and who make contracts should be relieved from un-' certainty, the courts have laid down the rule that in order to avoid the effect of such a solemn contract, the proof of the matter which it is sought to avoid or evade, must be of more than ordinary character. It must be clear, precise and indubitable, especially when referring to a case like this, and where the only evidence by which it is sought to avoid a recovery in an action upon a contract like this, is simply that of the party who seeks to avoid the recovery. That, in the opinion of the court, is insufficient [and we therefore instruct you, gentlemen of the jury, that upon the other phases of this case, there being practically no contention against the position of the plaintiff, with regard to his title, the executed contract, the survey, the number of acres, and the tender, we direct you to find a verdict in favor of the-plaintiff as hereinbefore stated, the aggregate amount of thirty-seven and ninety-five hundredths acres at $120 an acre, less a payment of $300, and interest upon the balance from August 22, 1903, at five per cent.]. [6]
    Yerdict and judgment for plaintiff for $4,835.97. Defendant appealed. ‘

      Errors assigned were (5, 6) above instructions, quoting them.

      A. Mitchell Palmer, for appellant.
    Fraudulent representations of an existing fact materially affecting the value of the land constitute a good defense: Stubbs v. King, 14 S. & R. 206; Frederick v. Campbell, 14 S. & R. 293; Sutton v. Morgan, 158 Pa. 204; McNeile v. Cridland, 168 Pa. 16; Vernam v. Wilson, 31 Pa. Superior Ct. 257.
    The proof was sufficient to warrant the submission of the question of the fraudulent representations to the jury : Machin v. Prudential Trust Co., 210 Pa. 253; Guthrie v. Horner, 12 Pa. 236; Buchanan v. Wurtz, 5 Watts, 151; Braunschweiger v. Waits, 179 Pa. 47; Smalley v. Morris, 157 Pa. 349.
    A misrepresentation, which possibly might not be sufficient ground of an action for damages, may be sufficient to entitle the party deceived to rescind the contract or to defend pro tanto, an action upon it: Lake v. Weber, 6 Pa. Superior Ct. 42.

      Rogers L. Burnett, with him Cicero Gearhart, for appellee.;
    ■ — The alleged misrepresentations were not the inducement for the deed: Machin v. Trust Co., 210 Pa. 253; Atherholt v. Hughes, 209 Pa. 156; Commonwealth Title, etc., Co. v. Folz, 19 Pa. Superior Ct. 28; Blygh v. Samson, 137 Pa. 368.
    Defendant’s uncorroborated testimony as to alleged misrepresentations, was not sufficient to carry question to jury when flatly contradicted by plaintiff: Brawdy v. Brawdy, 7 Pa. 157; Ballentine v. White, 77 Pa. 20; Sower v. Weaver, 78 Pa. 443; Pennsylvania R. R. Co. v. Shay, 82 Pa. 198; Thorne v. Warfflein, 100 Pa. 519; Murray v. New York, etc., R. R. Co., 103 Pa. 37; North & West Branch Ry. Co. v. Swank, 105 Pa. 555; Juniata Bldg. & Loan Assn. v. Hetzel, 103 Pa. 507; Phillips v. Meily, 106 Pa. 536; Oppenheimer v. Wright, 106 Pa. 569; Jones v. Backus, 114 Pa. 120; Thomas v. Loose, 114 Pa. 35; Jackson v. Payne, 114 Pa. 67; Sylvius v. Kosek, 117 Pa. 67; English’s App., 119 Pa. 533; Honesdale Glass Co. v. Storms, 125 Pa. 268; Yost v. Mensch, 141 Pa. 73; Mifflin County Nat. Bank v. Thompson, 144 Pa. 393; Skiles v. Dickson, 147 Pa. 117; Hoffman v. R. R. Co., 157 Pa. 174; McClain v. Smith, 158 Pa. 49; Wyckoff v. Ferree, 168 Pa. 261; Dickson v. Hartman Mfg. Co., 179 Pa. 343; Sutch’s Est., 201 Pa. 305; Clayton v. Traction Co., 204 Pa. 536; Fuller v. Law, 207 Pa. 101; Pioso v. Bitzer, 209 Pa. 503.
    May 20, 1907 :
   Opinion by

Mr. Justice Stewart,

This case called for binding instructions, but not for the reason assigned. The only witness who testified to the alleged misrepresentations of the vendor ivith respect to the location of the land, was the defendant himself, but his testimony oh this branch of the case was full, clear and explicit. That he was not supported by other witnesses, or, in the opinion of the trial judge, by the admitted facts of the case, would be no sufficient ground for refusing to submit the case to the jury. It might very well be that the jury would see correspondence where the court saw contradiction, or even without this, yet give entire credence to the testimony of the witness. It is a mistake to apply in actions of this kind rules of evidence which obtain in equity proceedings. The sufficienc_y and accuracy of the deed were not impeached ; the court was not asked to reform it in any way ; the defense rested on matters wholly outside of any writing. Did the plaintiff state to the defendant, during the negotiations, that the land described in the deed was located, with respect to a certain stream of water, in the manner represented on the map or blue print exhibited? No matter how this fact was found, it would not be in contradiction of the written agreement or the deed. True, where fraud is set up as a defense in an action of this character, the evidence to establish the fraud must be clear, explicit and indubitable ; but whether it reaches this degree or not is a question for the jury. The testimony of a single witness, even though contradicted by others, may carry conviction to the minds of the jury, and, when this occurs, the law approves and sustains.

The case called for binding instructions for the plaintiff, because there was no evidence that the defendant was induced to enter into the contract of purchase by reason of this alleged misrepresentation. It is just as essential that it should ajipear that the party complaining relied upon the representation, and that but for it he would not have made the contract, as it is that the fact of misrepresentation be established. So long as interest excluded from the witness stand, the jury had no way of determining the question of inducement, except by considering the importance of the matter concerning which the misrepresentation was made, and the situation of the parties to the transaction. These are yet matters for consideration, and there may be cases in which nothing better can be afforded ; but now that the pai’ties may testify in their own behalf, and where, as here, this is done, and the party testifies to the misrepresentation "with great particularity, it is not asking too much to insist that he shall not leave it to the jury to speculate and conjecture as to whether he was influenced by the misrepresentations of which he complains, without some expression from his own lips on that subject. We have looked through the testimony of the defendant with great care, but have failed to find a single expression to indicate that in making this bai’gain, he depended on the statement of the plaintiff as to the location of the land, and was influenced accordingly. Whether this was a careful and studied avoidance, or mere inadvertence, we have no way of knowing. Be that as it may, it was a serious omission. The land which was the subject of the agreement and about which the misrepresentation was alleged to have been made, was distant from the defendant’s mill, which had been operating for eight years, not more than 300 yards. The misrepresentation had regard to its location with respect to a stream of water with which the defendant ivas perfectly familiar. Under such a state of facts, a finding bj7 the jury, as matter of inference purely, that the misrepresentation, if such it was, was the inducement to the contract, without which defendant would not have purchased, could not be sustained. The defendant was ashing the jury to say for him what he failed or declined to say for himself.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    LaBar, Appellant, v. New York, Susquehanna & Western Railroad Company.

      Negligence — Railroads—Death—Conflict of laws — Right of action- — • Parties — Amendment—Nonsuit.
    When a suit is brought in Pennsylvania for injuries resulting in death, the action must be instituted in the name of the persons or personal representatives to whom the right of action is given by the statutes of the state in which the injuries were inflicted and the death occurred.
    In an action brought by a widow in her own right against a railroad company to recover damages for the death of her husband, killed in New Jersey while in the employment of the defendant company, it is too late to amend the record by adding the name of the widow as administratrix of the deceased, as required by the New Jersey statute, after the statute of limitations has become a bar, inasmuch as this in legal effect introduces a new cause of action by the substitution of different parties.
    Argued March. 13,1907.
    Appeal, No. 111, Jan. T., 1907, by plaintiff, from order of C. P. Monroe Co., Sept. T., 1906, No. 15, refusing to take off nonsuit in case of Catherine E. LeBar v. The New York, Susquehanna & Western Railroad Company.
    Before Fell, Brown, Mestbezat, Elkin and Stewart, JJ.
    Affirmed.

      ' Trespass to recover damages for death of plaintiff’s husband. Before Staples, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      A. MitcheU Palmer, with him Cicero Qea/rhart, for appellant.
    The amendment introduced no new cause of action: Snedeker v. Snedeker, 63 N. Y. Supp. 580; South Easton Borough v. Reinhart, 13 W. N. C. 389; P., W. & B. R. R. Co. v. Conway, 17 W. N. C. 429; Huntingdon & Broad Top R. R. Co. v. Decker, 84 Pa. 419; Post v. Campau, 42 Michigan, 90 (3 N. W. Repr. 272); Mason v. Union Pac. Ry. Co., 7 Utah, 77 (24 Pac. Repr. 796); Patton v. Pittsburg, etc., Ry. Co., 96 Pa. 169; Hughes v. Williams, 17 Pa. Superior Ct. 229; Haughey v. Pittsburg Rys. Co., 210 Pa. 363; Weaver v. Iselin, 161 Pa. 386; Clement v. Com., 95 Pa. 107; R. R. Co. v. Keller, 67 Pa. 300; Adams v. Edwards, 115 Pa. 211; Bell v. Irwin, 5 Pa. Superior Ct. 368; Stainer v. Ins. Co., 13 Pa. Superior Ct. 25; Herbstritt v. Lacka. Lumber Co., 212 Pa. 495; Gotshall v. Langdon, 16 Pa. Superior Ct. 158; Kaylor v. Shaffner, 24 Pa. 489; Jamieson v. Capron, 95 Pa. 15; Boas v. Christ, 20 Pa. C. C. Rep. 196 ; Hines v. Rutherford, 67 Ga. 606 ; U. S. Ins. Co. v. Ludwig, 108 Ill. 514.
    The statute of limitations had not barred the new plaintiff at the time of the amendment: Andrews v. Hartford, etc., R. R. Co., 34 Conn. 57.
    The statute of limitations does not begin to run until a right of action is complete. A cause of action does not exist unless there be a person in existence capable of suing or being sued. The rule is that the statute begins to run at the date suit may be commenced and, once begun, it is not stayed by a party’s death. If no action accrued prior to the death, none accrued until grant of administration, and the statute runs from such grant: Marsteller v. Marsteller, 93 Pa. 350; Levering v. Rittenhouse, 4 Wharton, 130; Appeal of Amole’s Administrators, 115 Pa. 356; Stambaugh v. Blake, 1 Mona. 609; Riner v. Riner, 166 Pa. 617; Ewell v. Chicago & Northwestern Ry. Co., 29 Fed. Repr. 57; Glass v. Williams, 84 Tenn. 697.

      Harvey Huffman, with him W. B. Eilenberger, for appellee.
    To allow the amendment would be to substitute for one who sues without authority for herself who sues in a representative capacity, not only for the plaintiff but for two other persons. The courts will not allow this to be done : Garman v. Glass, 197 Pa. 101; Wildermuth v. Long, 196 Pa. 541; Books v. Danville Borough, 95 Pa. 158; McPartland v. Penna. R. R. Co., 18 W. N. C. 79; Com. ex rel. Atty. General v. Dillon, 81* Pa. 11; Wilhelm’s Appeal, 79 Pa. 120.
    May 20, 1907:
   Opinion by

Mr. Justice Elkin,

The husband of appellant, a locomotive fireman in the employ of the defendant company, was killed by the explosion of the engine boiler on December 21, 1905, in the state of New Jersey. This action was brought in the court of common pleas of Monroe county, this state, August 13, 1906, by his widow, the appellant here, in her own right. When the case came on for trial February 13,1907, counsel for plaintiff made a motion to amend the pleadings by adding the name of Catherine E. LaBar, administratrix of Charles D. LaBar, deceased. The learned trial judge permitted the record and pleadings to be so amended under exceptions, but the next day, after full consideration, an order was made to strike off the amendment on the ground that it introduced a new cause of action barred by the statute of limitations, and therefore not allowable. It is authoritatively settled in this state that when a suit is brought for injuries resulting in death, the action must be instituted in the name of the persons, or personal representatives, to whom the right of action is given by the statutes of the state in which the injuries were inflicted and the death occurred. The action being transitory, the comity existing between different states will enforce rights of a statutory origin when jurisdiction of the parties is acquired by the courts here. In such a case, however, the qourts of this state will only enforce the rights of the parties according to, and as defined by,'the lex loci. This is the established rule in Pennsylvania : Usher v. Railroad Company, 126 Pa. 206. In order to have complied with this rule the present suit should have been brought by the administratrix of the estate of the decedent for the benefit of his widow and children. It was not so brought. The plaintiff sued, in her own individual right, and so .the case stood until the time of the trial. It is conceded that without the amendment the appellant cannot sustain her action, hence the only question to be determined is whether the learned trial judge erred in striking off the amendment to the pleadings. Unless the amendment is allowed the right of action does not exist in the plaintiff. The answer to this question depends upon whether a new cause of action was introduced or new parties were permitted to intervene. It has been many times decided that a new cause of action cannot be introduced, or new parties brought in, or a new subject-matter presented, or a vital and material defect in the pleadings be corrected after the statute of limitations has become a bar: Grier v. Assurance Company, 183 Pa. 334. To the same effect are Trego v. Lewis, 58 Pa. 463; Kaul v. Lawrence, 73 Pa. 410; Kille v. Ege, 82 Pa. 102; Garman v. Glass, 197 Pa. 101; Wilkinson v. North East Borough, 215 Pa. 486.

The learned counsel for appellant seek to avoid the application of the rule announced in these cases by insisting that the beneficiaries entitled to receive the moneys that might be recovered in this case are practically the same under the statutes of Pennsylvania and New Jersey, and, therefore, no injury is done the parties to this suit. This contention cannot be sustained under the rule of our cases. In Usher v. Railroad Company, supra, the present chief justice, in discussing the precise question, said : “ At the outset we may say that the action can get no support from the fact that a closely similar statute in this state gives the right to sue,, expressly and exclusively, to the widow, if there be one, for the benefit of herself and her children.” This whole question was fully considered in that case, the contention there made in this respect being on all fours with the argument here, and the conclusion was reached that it would be pushing the comity which undertakes to enforce in this state a right of action which accrued in another state beyond its legitimate bounds, to assume to do for other tribunals what they would not do for themselves. In other words, as applied to the facts of the present case, if the suit had been brought in New Jersey the personal representative of the deceased husband would be required to bring it, and not the widow, in her own individual right, and this is equally true when the suit is brought in our state. It was not so instituted, and it is too late to amend the record so as to make the personal representative of the decedent a party to the record, as required by the New Jersey statute, after the statute of limitations had become a bar, because this in legal effect introduced a new cause of action by the substitution of different parties.

It is suggested for appellant that the statute of limitations had not become a bar at the time the amendment was asked because of the enactment by congress of what is known as the employers’ liability act, in which it is provided “ that no action shall be maintained under this act, unless commenced within one year from the time the cause of action accrued.” It is contended that the right of action did not accrue until the personal representative was appointed, and that the suit could have been instituted, or the amendment allowed, within one year from the date of that appointment. This is clearly an afterthought. Questions arising under this act were not raised, nor considered in the court below, nor have any assignments of error properly brought the question before this court. As the record stands the application of that act to the facts of this case cannot be considered, and the question raised will not be determined.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Yeager v. Berwick Borough, Appellant.

      Negligence — Boroughs—Sidewalks—Hole in pavement — Notice—Constructive notice.

    Where a hole in a sidewalk has been covered by a board in such a way that the hole is not visible, and the borough in which the sidewalk is situated has no actual notice of the hole, and the hole as covered by the board has been in such condition only twenty-four hours, the borough cannot be held to have had constructive notice of the condition of the sidewalk, so as to make it liable for personal injuries to a person who stepped on the board and was precipitated into the hole by the board turning under her.

      Argued April 16, 1907.
    Appeal, No. 390, Jan. T., 1906, by defendant, from judgment of C. P. Columbia Co., Feb. T., 1905, No. 12, on verdict for plaintiff in case of Wilson Yeager and Clara Yeager, bis wife, v. Berwick Borough.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Ferris, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict for Clara Yeager for $3,225, and for Wilson Yeager for $275. Defendant appealed.

      Error assigned amongst others was in submitting the case to the jury.

      Fred Heeler, with him J. Gere Jayne, for appellant.
    There was nothing to charge the borough with constructive notice : Lohr v. Philipsburg Borough, 156 Pa. 246; New Castle v. Kurtz, 210 Pa. 183; Garland v. Wilkes-Barre, 212 Pa. 151.

      John G. Ucm'man, with him Christian A. Small and James Scarlet, for appellees.
    A municipality is liable in damages to a person who falls into an unguarded areaway or opening on the sidewalk of a public street, where the areaway is so situate that the person using the sidewalk with ordinary care might by accident fall into it: Bush v. Johnston, 23 Pa. 209; Feather v. Reading, 155 Pa. 187; Miller v. Bradford, 186 Pa. 164; McNeal v. Ry. Co., 131 Pa. 184.
    May 13, 1907:
   Opinion by

Mr. Justice Brown,

Samuel Heller,.the owner of a property on Front street, in the borough of Berwick, obtained a permit to raise the sidewalk in front of it to the established grade. A portion of the property was occupied by Garrison Brothers as a store, in front of which there was a cellarway covered by a cellar door flush with the pavement. In laying the new pavement the opening to the cellar was lengthened and the old cellar door was about six inches too short to cover it. The work of putting down the new pavement was commenced August 23, 1904, and completed in front of the store on September 3 following. During the progress of the work barriers were placed across the pavement preventing its general use by the public. Entrance to the store was for a time from the street over a board laid from the curb to the door. There was testimony that as a portion of the pavement was finished such portion was used by the public, but the whole pavement in front of the store was not so used until Saturday evening, September 3, 1904. After the cellarway was lengthened, and the new cement pavement was being laid, the old cellar door would sometimes be pushed up against the building and the opening would be at the other end ; at other times it would be pushed towards the curb and the opening would be at the house line, but it does not appear from the testimony that during the progress of the work the opening at either end was ever left uncovered. On Saturday afternoon, when the workmen left and the barriers across the pavement were removed, the cellar door was pushed against the building, and the opening was at the other end, but the uncontradicted testimony is that it was then covered by a board which was seen over it about midnight. On Sunday evening, September!, between eight and nine o’clock, as the plaintiff was walking over the pavement, her foot went down into the opening and she sustained the injuries for which compensation is sought in this action. It does not appear that she stepped into an uncovered opening, but rather that in stepping on a board over it the same turned and her foot went down. "William Moore, a witness called by her, testified that he was within ten feet of her when the accident occurred; that he examined the hole and found a board over it between seven and nine inches wide, and that it was of sufficient length to cover the entire width of the cellar way.

There was no evidence that the borough had actual notice of the opening, and the jury were so instructed, but the case was submitted to them on the question of its constructive notice of the alleged defect, and they were told that if they found it had such notice it could be found guilty of negligence which caused the injuries sustained by plaintiff. If, while the new pavement was being laid, the borough had received actual notice of the condition of the cellar way, it would not have been bound to do more than was done up to the time the barriers were removed and the pavement was again open to public passage. The uncontradicted testimony is that while the work was going on the opening was always covered. Nothing more could have been required for the protection of the public during the period when they were practically barred from the pavement.

What constructive notice of the condition of the pavement could the borough have had under the undisputed facts ? With no opening in it exposed at any time from August 23 down to the hour of the accident, the borough was not required during the progress of the work to lift up the planks and boards which, according to the testimony, were on the pavement, to discover -whether holes were under them. No such duty rests upon boroughs. Even when pavements are in the full, free and uninterrupted use of the public, it is not the duty of a borough to seek for defects in the highways, but when they exist and are observable to its officers exercising reasonable supervision, it must observe them: Lohr v. Philipsburg Borough, 156 Pa. 246. When, on Saturday afternoon, the pavement was again thrown open to the public, the alleged defect in it — the hole — was observable to no one. Not a -witness testifies that it was. It is true Garrison says the cellar way was in the same condition for two days, but not that the opening was not covered; and to no passer-by was it known that a hole was under the board. This condition continued for nearly twenty-four hours, and if, during that period, the opening wras not observable to anyone of the hundreds who passed over the pavement, how can it be said that the borough might have acquired knowledge of its existence ? The doctrine of constructive notice has never reached the limit given it in this case by the court below, and it never will be so extended until boroughs are charged with the duty of insuring the public against all unseen defects in their streets.

The assignments of error are sustained. The judgment in favor of the plaintiffs is reversed and is entered here for the defendant.


author: Me. Justice Brown,

text:
    Northern Coal & Iron Company v. Wilkes-Barre, Appellant.

      Railroads — Branches—Occupation of roads and streets — Township— City.

    A railroad incorporated in Pennsylvania in 1859, with the right t'o construct lateral branches, not exceeding three miles in length from either terminus, or from any point on the line of its main road, has the right to cross the roads of the township in which it is located in constructing branches, and also the right to cross streets in a city formed out of a portion of the township, and in the exercise of such right it may cross streets without the city's consent, and without submitting plans of construction to the municipal authorities for approval.
    Argued April 17, 1907.
    Appeal, No. 156, Jan. T., 1907, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1906, No. 1, on bill in equity in case of Northern Coal & Iron Company v. City of Wilkes-Barre.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Perris, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned, was the decree of the court.

      S. J. Strauss, with him O. F. MoRugh, for appellant.
    A railroad company, acting under the provisions of the general railroad act of 1849, may not enter upon the streets of a city, either longitudinally or transversely, and build its road without submitting the plans of construction to the city authorities and obtaining, if possible, the approval of the city authorities before actually entering upon the work of construction: Pittsburg v. R. R. Co., 205 Pa. 13; Millvale Boro. v. Ry. Co., 131 Pa. 1; Pittsburg v. Pennsylvania R. R. Co., 48 Pa. 355; P. & R. R. R. Co. v. Kensington, etc., R. R. Co., 33 W. N. C. 182; Philadelphia v. River Front R. R. Co., 173 Pa. 334.

      George R. Bedford, with him A. R MoClintock, Welles c& Torrey and Simon P. Wolmrton, for appellee.
    The right to build branches has been broadly construed by the courts, and can be exercised when and where, at the discretion of the directors of the railroad possessed of such a franchise: Com. v. Erie & Wyoming Valley R. R. Co., 3 Dauphin Co. Rep. 189.
    The company has the right to cross the streets in question without the permission of the city: Jones v. R. R. Co., 151 Pa. 30; Millvale Borough v. Evergreen Ry. Co., 131 Pa. 1; O’Connor v. Pittsburg, 18 Pa. 187; Philadelphia & Trenton R. R. Co., 6 Wharton, 25; Cleveland & Pittsburg R. R. Co. v. Speer, 56 Pa. 325.
    May 13, 1907:
   Opinion by

Me. Justice Brown,

No material fact in this case is in dispute. The Northern Coal and Iron Company was incorporated by Act of April 27, 1864, P. L. 627. In 1873 it was consolidated with the Plymouth and Wilkes-Barre Eailroad and Bridge Company. The new company retained the name of “Northern Coal and Iron Company ” and acquired all the property, rights, franchises and privileges of the Plymouth and Wilkes-Barre Eailroad and Bridge Company, which was incorporated by Act of April 12, 1859, P. L. (1860) 857. By its act of incorporation and a supplementary Act approved March 14,1865, P. L. 444, it was invested with all the rights and privileges and subjected to all the restrictions of the general railroad Act of February 19, 1849, P. L. 79, except those contained in the 18th section of said act. It was authorized to construct a railroad from the Susquehanna and Lehigh Railroad and operate the same as a public highway for the transportation of passengers or freight from a point at or near the intersection of the Susquehanna and Lehigh Eailroad and the North Branch canal in Wilkes-Barre or Hanover township, Luzerne county, to a point in Plymouth township on the Lackawanna and Bloomsburg Eailroad at or near the “ Boston ” coal breaker ; to build a railroad bridge across the Susquehanna river '; to connect its railroad with any other railroads then built or thereafter to be constructed, and to build lateral branches, not exceeding three miles in length, from' either terminus, or from any point on the line of its main road. The railroad and bridge which it was authorized to build were constructed prior to May 4,1871, the date of the incorporation of the city of Wilkes-Barre, which is now under the general laws of the commonwealth relating to cities of the third class. The appellee claiming to be acting in pursuance of the authority given by the act of April 12,1859, and such other laws of the commonwealth as are applicable, has located a branch road less than three miles in length, having acquired the right of way therefor, leading from a point in the city of Wilkes-Barre on the main line of the former Plymouth and Wilkes-Barre Railroad, between the old river road and the Susquehanna river, to a point in Hanover township, where it intends to connect with the Pennsylvania railroad for interchange of traffic. This proposed branch line intersects certain streets laid out in that section of the city of Wilkes-Barre, known as Fir wood, which, at the time of the incorporation of the Plymouth and Wilkes-Barre Railroad and Bridge Company and the construction of its main line, formed a part of the township of Wilkes-Barre, The streets were laid out long after the incorporation of the railroad and bridge company and the construction of its main line, and long after the branching rights had vested in that company by its charter and in the appellee by the merger. Some of the streets intersected by the appellee’s branch had been accepted by the city before the location of said branch; another, since; and still another has not yet been accepted; but they have all been laid out and dedicated to public use, and, for the purpose of determining the question raised on this appeal, are to be treated as public highways, subject to municipal control. The expressed intention of the appellee is that no part of any of these streets shall be permanently occupied by its proposed branch road, but all will be crossed overhead by elevated structures with clearances of not less than fourteen feet above the streets, so constructed that street travel will not be in any manner obstructed or interfered with. The eighth finding of fact is that it was not shown by the evidence that this clearance of fourteen feet is unreasonable or insufficient to accommodate street traffic at the points in question. The appellee, having entered upon the work of building its branch railroad, was prevented by officials and employees of the city from constructing the same over the streets, and this bill was filed to restrain such interference.

The appellant does not seem to question the right of the appellee to cross streets in the construction of its branch, but raises the question of its right to do so, unless it first submits to councils a plan of the proposed branch and municipal approval of the same is unreasonably withheld. This cannot be regarded as the real question before us. The appellee submitted an application to councils for permission to cross the streets, but, after unfavorable action had been taken upon it by the street committee, withdrew it, with formal notification that the charter rights of the company authorized the crossing of the streets without municipal consent; and this is the position now assumed by the company. The question to be determined, then, is not whether the city may unreasonably withhold consent, but whether the appellee must obtain the same before it can construct its branch. In sustaining its contention that it is not required to first obtain municipal consent the court below very properly said: “ The right of the municipality in the exercise of its police power and for the protection of its citizens and the general public, to reasonably control the operation of railroads within the city limits, is not herein involved. Nor are we called upon to consider any question as to obstruction of street travel by the proposed viaducts over the streets, for, under the evidence, no such obstruction is intended; nor whether the proposed acts of the plaintiff would be a violation of sec. 12, of the Act of April!, 1868, forbidding an entry upon, or occupation of, streets of a city without its consent by railroad corporations formed under that act, for neither the Plymouth and Wilkes-Barre Railroad and Bridge Company nor the Northern Coal and Iron Company was, or is, a corporation formed under that act. As to all matters relating .to the reciprocal rights and duties of the railroad and the city, and those sections of the general public whose interests they respectively serve, it must be assumed for the purposes of this proceeding that the railroad is intended to be built with a due regard for the rights of travelers over the streets, and that -when constructed it will be operated in conformity with law, and with any existing or future regulations which the municipality may lawfully impose.”

By the act of 1859, incorporating the Plymouth and Wilkes-Barre Railroad and Bridge Company, the right is given to construct lateral branches, not exceeding three miles in length, from either terminus or from any point on the line of its main road. The right is not to build a single branch, but as many as the company, in the judgment of its officers, may need from time to time, and it is, therefore, a continuing right to be exercised at any time : Pittsburg, Virginia & Charleston Ry. Co. v. Pittsburg, C. & State Line R. R. Co., 159 Pa. 331.

If, at the time the Plymouth and Wilkes-Barre Railroad and Bridge Company was incorporated, it had been authorized to construct its main line through the city of Wilkes-Barre, with a right to extend branches from the same at any point, such a right would have carried with it the right to cross streets in constructing a branch, for without such a right the right to construct a branch could not have been exercised. It would, therefore, have, been inferentially conferred by the legislature, but would have been as valid as an express grant. “ The right of a company, therefore, to build a railroad on the street of a city depends, like the lawfulness of alt its other acts, upon the terms of its charter. Of course, when the power is given in express words, there can be no dispute about it. It may also be given by implication ; for instance, if a company be authorized to make a railroad, by a straight line, between two designated points, this implies the right to run upon, along or across all the streets or roads which lie in the course of such line : ” Commonwealth v. Erie & North-East Railroad Co., 27 Pa. 339. “ It does' not admit of a doubt, in this state, that a railroad company may use a public.street or highway when authorized by its charter expressly or inferentially: ” Cleveland & Pittsburg Railroad Co. v. Speer, 56 Pa. 325. The Act of the 19th February, 1849, P. L. 83, entitled c An act regulating railroad companies,’ contains no express authority for crossing the tracks of another company. It gives a general authority to lay out and construct a railroad between designated termini. It follows that the right to cross, when absolutely necessary, follows by necessary implication, otherwise the grant, in some instances, would entirely fail, as, for instance, where another railroad lies between its termini. In such case, if it could not cross, it could not build its road : ” Paxson, C. J., in Perry County R. R. Extension Co. v. R. R. Co., 150 Pa. 193.

When the main line of the Plymouth and Wilkes-Barre Railroad and Bridge Company was constructed the city of Wilkes-Barre did not exist, and that portion of it through which this branch will be constructed was part of the township of Wilkes-Barre, through which the company was expressly authorized to construct its main line, and through which its branches, not exceeding three miles in length, could have been extended in every direction, and, when so extended, public roads would necessarily have been crossed by them. This unquestionable right to construct branches vested in the company years before the incorporation of the city of Wilkes-Barre, and couíd not have been taken away by the mere incorporation of the city and its absorption of the territory over which the right existed by clear legislative grant. The right over such territory, in the absence of any lawful impairment of it by the legislature, continued after the absorption of the territory by the city to be just what it had been before. The city took in the township just as she found it, and with whatever burdens were resting upon it. Where the appellee had a right to extend its tracks before the city of Wilkes-Barre came into existence, it has the right to extend them now, for the legislature which gave it that right has not taken the same away nor in any manner impaired it.

Though the streets of the appellant may, without its consent, be crossed by the tracks of the appellee in constructing its branch, it would have been better if plans for the construction of the same had been first submitted to the municipal authorities and approved by them, for by such a course, though the appellee was not bound to take it, the present controversy might have been avoided. Disputes may hereafter arise between the appellant and the appellee growing out of alleged abuse by the latter of the corporate right which it is now exercising. If the same should ever be abused, courts will restrain the abuse. At present no such abuse appears.

The injunction awarded by the court below is not in disregard of any of the rights of the public. The decree is that the appellant be restrained from interfering with the appellee in the erection of suitable elevated structures with clearance of not less than fourteen feet above the streets, and from interfering with such temporary use of the same as may be necessary in building such crossings, and as will not prevent the use of the streets by the traveling public; and the appellee is directed to so prosecute the work as not to permanently obstruct or unnecessarily impede safe public travel along the streets, and so as to leave them in as good condition as when the work was begun.

The appeal is dismissed and the decree below affirmed at appellant’s costs.


author: Mr. Justice Stewart,

text:
    Jackson, Appellant, v. Gunton.

      Sheriff’s sale — Sheriff’s return — Sheriff’s deed — Contradiction of return.

    It is not a contradiction of a sheriff’s return to show that the person returned as the purchaser at the sale was buying for other parties than himself.
    The fact that the sheriff’s deed was made to the parties who furnished the purchase money, and not to the purchaser named in the return, especially when acquiesced in for nearly fifty years, gives rise to a strong presumption that it was so done by the appointment of the purchaser in execution of the trust.

      Deed — Presumption—Quitclaim deed — Deed by surviving partner.

    A quitclaim deed for the consideration of $1.00 was executed by the surviving partner of a partnership, in which deed the grantor was described as the party of the first part. The thing conveyed was, “all the interest of the party of the first part in and to the assets or partnership property of the late firm .... being the surviving partner” of said firm, “said interest consisting of notes, judgments, mortgages, bills, book accounts, and other evidences of debt, as well as of goods, chattels, lands and tenements .... together with all rights of the said grantor as surviving partner to make deeds, and other instruments of writing necessary to execute in winding up and settling said partnership.” Held, (1) that the deed conveyed the individual interest only of the grantor in the partnership assets; (2) that the deed was properly construed in an- action of trespass to support the contention that there were interests outstanding other than that of the grantor named in the deed.
    Argued, March 18, 1907.
    Appeal, No. 235, Jan. T., 1906, by plaintiffs, from judgment of C. P. Sullivan Co.,- Sept. T., 1901, No. 51, on verdict for defendant in case of W. W. Jackson and Blanche "W. Sturdevant, Trustees for the devisees of George D. Jackson, deceased, and W. W. Jackson, Administrator d. b. n. c. t. a. of the Estate of George D. Jackson, deceased, v. "Walter B. Gunton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat and Stewart, JJ.
    Affirmed.
    Trespass for an alleged illegal mining of coal. Before Terry, P. J.
    From the record it appeared that the land in controversy was situated in Cherry township Sullivan county.
    The facts are stated in the opinion of the Supreme Court. See also 26 Pa. Superior Ct. 203.
    Yerdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned were (1) in admitting in evidence under objection and exception the sheriff’s deed to J. Jackson & Son; (2) in excluding plaintiffs’ offer in rebuttal of the deed of B. Rush Jackson to George C. Jackson and others.

      Seth T. MoGormioh, with him Alphonsus Walsh and E. J. Mullon, for appellant.
    The return of service of a writ by the sheriff is conclusive and cannot be contradicted or set aside in a collateral proceeding: Levan v. Millholland, 114 Pa. 49; Benwood Iron Works v. Hutchinson, 101 Pa. 359; Bennethum v. Bowers, 133 Pa. 332; MacGeorge v. Mfg. Co., 141 Pa. 575; Deacle v. Deacle, 160 Pa. 206; Weyand v. Tipton, 5 S. & R. 332; Garner’s App., 1 Walk. 438; Brechted v. Cortright, 13 Pa. Superior Ct. 384; Gibson v. Winslow, 38 Pa. 49; Stewart v. Freeman, 22 Pa. 120; Slater’s App., 28 Pa. 169; Small v. Hodgen, 1 Litt. (Ky.) 16.
    The surviving partner has power to sell partnership real estate as long as the affairs of the partnership have not been finally liquidated and settled up: May v. Troutman, 4 Pa. Superior Ct. 42; Title & Trust Co. v. Bell, 188 Pa. 637; Hayes v. Treat, 178 Pa. 310; DuBree v. Albert, 100 Pa. 483; Hanna v. Wray, 77 Pa. 27; Shipe’s App., 114 Pa. 205.

      Rodney A. Merour, with him Rush J. Thomson and Albert F. Meess, for appellee.
    The delivery of the deed by the sheriff after it has been properly acknowledged, the sale confirmed and the purchase money paid, vests the title in the purchaser: Evans v. Maury, 112 Pa. 300; Media Title & Trust Co. v. Kelly, 185 Pa. 131; Lengert v. Chaninel, 208 Pa. 229; Copeland v. Mehaffey, 6 Pa. Dist. Rep. 167; Sipp v. Insurance Co., 8 Pa. Dist. Rep. 283.
    The quitclaim shows it was both executed and acknowledged by the grantor'as an individual, and not as a surviving partner. The certificate of acknowledgment is a judicial act, to be judged of solely by what appears on the face of it: Jamison v. Jamison, 3 Wharton, 457; Com. v. Haines, 97 Pa. 228.
    Except in cases of fraud and duress, the official certificate of acknowledgment is conclusive of every material fact on its face : Williams v. Baker, 71 Pa. 476; Heeter v. Glasgow, 79 Pa. 79; Singer Mfg. Co. v. Rook, 84 Pa. 442; Hornbeck v. Building & Loan Assn., 88 Pa. 64; Cover v. Manaway, 115 Pa. 338; Cressona Saving Fund, etc., Assn. v. Sowers, 134 Pa. 354; Carr v. Frick Coke Co., 170 Pa. 62.
    May 20, 1907 :
   Opinion by

Mr. Justice Stewart,

The record of the execution proceedings on which this land was sold shows that George D. Jackson, plaintiff in the execution, was purchaser; the sheriff’s return so states. But the sheriff’s deed for the premises is to J. Jackson & Sons, a partnership of which the said George D. Jackson was a member. On the trial of the case this deed was offered in evidence by defendants, and coupled with it was an offer to show that while George D. Jackson was the nominal plaintiff in the execution upon which the property was sold, the consideration money for the assignment of the claim which made him a judgment creditor was paid out of the funds of the partnership of which he was a member; in other words, that the debt upon which the property was sold, was due the partnership, not George D. Jackson individually. The purpose of the offer was to show an. outstanding interest in the premises in others than the plaintiffs, who represented only the interest of George D. Jackson, then deceased. The same question here presented arose on a former trial of the case. The offer was there refused ; but the Superior Court disapproved. On the last trial it was admitted in accordance with the ruling of the Superior Court, and the matter is now before us for review.

"We are of opinion, that the evidence was admissible. Had the deed from the sheriff, following the return, been made to George D. Jackson, it would have been competent nevertheless for the defendants to show that the grantee in the deed was not in point of fact the owner, but simply a trustee for those entitled to the beneficial ownership. The ground of objection is that the deed contradicts the sheriff’s return, and that the latter is conclusive. The latter half of this proposition may be regarded as axiomatic; the first is an assumption that cannot be sustained. How is it a contradiction of a sheriff’s return to show that the person returned as purchaser was buying for other parties than himself? Certainly that would be no impeachment of the return: it would involve no denial, but would imply rather an acceptance of its correctness and validity. That George I). Jackson was the purchaser, and that the return in his name is correct, was not disputed. What was attempted to be shown was that although the purchaser, he was acting for the partnership of which he was a member. Such fact would result by legal implication, payment of the purchase money by the partnership having been shown: Erwin’s Appeal, 39 Pa. 535 ; Lefevre’s Appeal, 69 Pa. 122. The fact that the deed was made to the parties who furnished the purchase money and not to the purchaser named in the return, especially when acquiesced in for nearly fifty years, would give rise to a strong presumption that it was so done by the appointment of the purchaser in execution of his trust.

The land was unquestionably partnership property; it was purchased with partnership money, and was conveyed directly to the partnership. There is nothing to show that as between the partners it was ever regarded in any other light. Being an asset of an unsettled partnership, it was within the scope of the powers of the surviving partner, B. Bush Jackson, to dispose of it. The deed from him was objected to on tbe ground that it .did not convey the interest of the partnership in the land, but simply the interest of the grantor as an individual. It was not proposed to supplement the offer of the deed with any evidence; and the effect of the deed being for the court, the question was properly enough raised on the offer, though the better plan would have been to admit the deed in evidence and rule upon it afterwards. The grantor in the deed is 13. Eush Jackson, designated as party of the first part.' While surviving partner, he is not so indicated, though the fact afterward is mentioned in the deed. The thing conveyed is “ All the interest of the party of the first part in and to the assets or partnership property of the late firm composed of Josiah Jackson, George D. Jackson and 33. Eush Jackson, co-partners, trading under the firm name of J. Jackson & Sons, all the interest of the party of the first part in and to the assets of the partnership property of the late firm of Jackson Brothers, composed of George D. Jackson and B. Eush Jackson, the same grantor being the surviving partner of each of said firms or partnerships, said interest consisting of notes, judgments, mortgages, bills, book accounts, and other evi-' dences of debt, as well as of goods, chattels, lands and tenements .... together with all rights of the said grantor as surviving partner to make deeds and other instruments of writing necessary to execute in winding up and settling said partnership.” The deed is a quitclaim deed, and the consideration named is $1.00. From the features of the deed above indicated, we are to derive its import. The party of the first part is the individual B. Eush Jackson, unidentified in that connection as a surviving partner; the thing conveyed is all the interest of the said B. Eush Jackson in the partnership property. Any construction that would enlarge this description so as to embrace more than the individual interest of George I). Jackson must rest largely, if not entirely, upon the concluding words together with all the rights of the said grantor as surviving partner to make deeds,” etc. It is impossible to determine with any degree of certainty what the grantor here intended. A reference to the prior enumerated subjects of the conveyance is not to be supposed, for the deed operated on these, and as to them no other conveyance was necessary; least of all is it to be supposed that he was providing for the grantors to make deeds to themselves. If the reference be to the partnership property as distinguished from that specifically enumerated, it would follow that such property was not embraced in the general grant, and as to it nothing is given but a mere power to convey solely for partnership settlement. No matter how construed, it comes far short of being an intelligible expression of a purpose to vest in tbe grantees title to the property and assets of tbe partnership. Tbe other features of tbe deed referred to strongly negative any such púrpose. Tbe fact that tbe consideration mentioned in tbe deed is $1.00 is significant. While as surviving partner, B. Bush Jackson was invested with a power to sell, be could only sell for purposes of conversion. With bis own individual interest be could do as be pleased, give it away if be so desired; but tbe interest of tbe firm in the land was an asset of tbe firm, and, if we are to judge from the amount claimed in this connection, a valuable one; this be could only sell as required for tbe purposes of tbe partnership ; be could not give it away; and yet this latter is what be did, if we are to give such construction to tbe deed as appellants contend for, and tbe actual consideration paid was but $1.00. We cannot accept this view of bis purpose without more convincing evidence than is disclosed in tbe deed. Tbe fact that tbe conveyance is a quitclaim deed is consistent only with tbe view that nothing beyond tbe sale of bis individual interest was contemplated. We think the construction placed on the deed by tbe learned-trial judge was correct.

Tbe assignments of error are overruled and tbe judgment is affirmed.


author: Me. Justice Potter,

text:
    Standard Interlock Elevator Company v. Wilson, Appellant.

      Contract — Sale—Time of performance.

    Where no time is fixed for the performance of a contract, the law will fix a reasonable time.
    • Where a safety device for an elevator is sold under a stipulation that it is “to be installed at such date” as the purchaser may name, the purchaser must name a reasonable time for the installation, otherwise the seller may bring an action for the breach of the contract.
    ■ Contract — Sale—Misrepresentation.
    In an action to recover on a contract of sale for elevator safety devices, an affidavit of defense is sufficient which avers that plaintiff had fraudulently represented to the defendant, as an inducement to enter into the contract, that a combination or trust was about to be formed, for the purpose of controlling the sale of various elevator safety devices in the market, and that such trust would increase the price of installing said safety devices from and after a date named, and that defendant was thereby induced to enter into the contract.
    It is true that false statements to be deemed fraudulent in law must relate to something represented as an existing fact; but a statement apparently only of intention, purpose or opinion, may amount to a .statement of fact, as where a person fraudulently misrepresents his intention in doing a particular act to the damage of another.
    Argued March 25, 1907.
    Appeal, No. 402, Jan. T., 1906, by defendant, from order of C. P. No. 4, Phila. Co., Sept. T., • 1906, No. 2,360, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Standard Interlock Elevator Company v. George B. Wilson.
    Before Mitchell, C. J., Eell, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Rule for judgment for want of a sufficient affidavit of defense.
    The affidavit of defense was as follows :
    Defendant admits that he accepted the proposal set forth in plaintiff’s statement of claim, but avers that he did expressly reserve to himself the right to fix the time at which said safety devices might be installed.
    Defendant having reserved to himself the right to fix the time at which said safety devices might be installed and no time having yet been fixed by him, he is informed and believes, and, therefore, avers that there has been no breach of contract on his part; and that this suit is premature.
    Defendant avers that at the time of the acceptance of said proposal he was informed by the said plaintiff that said plaintiff and other persons or corporations, doing business of a like nature as said plaintiff, were about to form a combination or trust for the purpose of controlling the sale of the various elevator safety devices in the market at that time, and that said trust would increase the price of installing said safety devices from and after January 1, 1905. That if said defendant did not accept said proposal before the date last mentioned, he, said defendant, would be obliged to pay a large increase over the price stipulated in said proposal for installing said devices, to wit: A sum of $20.00 in excess of the price named in said proposal for each and every opening for all safety devices installed.
    Defendant is informed and believes, and, therefore, avers that said representations were false and misleading, and that there has never been any combination or trust formed or organized by said plaintiff and any other persons or corporations; and that there has never been any increase in the price of installing said safety devices since the date of said proposal, and at the time that said plaintiff made said representations he, said plaintiff, well knew them to be false and that said representations were made with fraudulent intent and for the purpose of inducing this defendant to accept said proposal. That said defendant verily believing and relying upon the truth of said statements and representations accepted said proposal which he would not otherwise have donehadit not been for said false statements, representations and inducements.
    Defendant is informed and believes, and, therefore, avers that part of the alleged damage claimed by plaintiff herein is made up of the sum of $810, which said sum plaintiff would be obliged to pay as a royalty should he be called upon to install said devices.
    Defendant, therefore, avers that he is not indebted to the plaintiff in the sum of $1,610, or in any sum whatsoever, all of which matters and things the defendant believes to be true and expects to be able to prove on the trial of this cause.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      John 0-. Johnson, with «him Samuel J. Randall and Matthew Randall, for appellant.
    The agreement lacks mutuality : Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207; Nelson v. Von Bonnhorst, 29 Pa. 352; Lippincott’s Estate, 21 Pa. Superior Ct. 214; Ice Co. v. Hawk, 29 Pa. Superior Ct. 13.
    The plaintiff did not accept the conditions imposed by defendant at the time they were imposed : Johnston v. Fessler, 7 Watts, 48; Boyd v. Peanut Co., 25 Pa. Superior Ct. 199.
    The contract was induced by fraud and misrepresentation: Tyson v. Passmore, 2 Pa. 122; Jack v. Hixon, 23 Pa. Superior Ct. 453; Lake v. Weber, 6 Pa. Superior Ct. 42.
    The alleged loss of profit having been shown to be exaggerated, it is submitted that it is a question for a jury to pass upon : McPherson v. Allegheny Nat. Bank, 96 Pa. 135; Hunter v. Reilley, 36 Pa. 509; Brown v. Gourley, 214 Pa. 154.

      Ira Jewell Williams, with him Francis Shunle Brown and Alex. Simpson, Jr., for appellee.
    The proposal and acceptance of December 30,1904, were absolute both in form and substance, the actual intent of the parties being that the devices were to be installed within a reasonable time: Gill Mfg. Co. v. Hurd, 18 Fed. Repr. 673; Wagenseller v. Simmers, 97 Pa. 465; Stevenson v. Kleppinger, 5 Watts, 420; Jacobs v. Figard, 25 Pa. 45; Newsam v. Finch, 25 Barb, 175; Howes v. Woodruff, 21 Wend. 640; Nice v. Walker, 153 Pa. 123; Lewis v. Tipton, 10 Ohio St. 88; Chichester’s Ex’r v. Vass’s Adm’r (Va.), 1 Munf. 98; Works v. Hershey, 35 Iowa, 340; McClung v. Bergfield, 4 Minn. 148.
    Appellant’s repudiation of the contract gave rise to an immediate right of action for damages: Hocking v. Hamilton, 158 Pa. 107; Philadelphia Ball Club, Ltd., v. Lajoie, 202 Pa, 210; Unexcelled Fire-Works Co. v. Polites, 130 Pa. 536; Worden v. Connell, 196 Pa. 281; McHenry v. Bulifant, 207 Pa. 15.
    Fraud can only be predicated upon misrepresentations of existing facts. The matters to which the appellant’s alleged statements relate are all in futuro : Grove v. Hodges, 55 Pa. 504; Fulton v. Hood, 34 Pa. 365; N. Y. Life Ins. Co. v. Miller, 32 S. W. Repr. 550.
    The averments of damages are not sufficiently met by the affidavit of defense.
    May 20, 1907:
   Opinion by

Me. Justice Potter,

This is an appeal from a judgment entered for want of a sufficient affidavit of defense. In the statement filed by the plaintiff it is averred that the parties entered into a written agreement which was contained in a letter from, plaintiff to defendant, and in the reply of the defendant. It was proposed by the plaintiff to equip, with safety devices, for the defendant, five elevators, located in the Pennsylvania building, at a total cost of $3,075, payable thirty days from the completion of the work. In the reply defendant accepted the proposal, adding : “ Device to be installed at such date as we may name.” The statement further averred that plaintiff has repeatedly offered to perform the contract, but that the defendant has neglected and refused to comply therewith, and has repudiated all liability thereunder. Plaintiff averred that the actual cost of furnishing the devices contemplated by the contract would be $1,465, and claimed to recover $1,610, or the difference between the cost and the contract price.

The affidavit filed by defendant sets up three grounds of defense : First, that in the contract defendant reserved to himself the right to fix the time when the safety devices might be installed, and that as no time had yet been fixed by him there had been no breach of contract on his part, and the suit was, therefore, premature. We do not regard this as the statement of a good defense. The principle is well settled that where no time is fixed for the performance of a contract the law will fix a reasonable time. The proposal Avas accepted by the defendant, and the qualification Avhich was added, by Avhich the right to indicate the time for installation was reserved, is not inconsistent with the acceptance. It must be construed in harmony Avith the offer and acceptance. This Avould require and imply that the naming of the date for installation should be Avithin a reasonable time.

The second ground of defense set up is that plaintiff had fraudulently represented to the defendant, as an inducement to enter into the contract, that q combination or trust was about to be formed, for the purpose of controlling the sale of the various elevator safety deAdces in the market, and that such trust would increase the price of installing said safety devices from and after January 1, 1905, and that defendant was thereby induced to enter into the contract. This allegation Avas, we think, sufficient under our decisions to take the case to the jury. Thus, in Williams v. Kerr, 152 Pa. 560, it Avas held that a decree for reconveyance of land will be made Avhere it appears that the owners of the land were induced to sell it by a false representation of the vendee that a foundry and machine shop AArould be immediately erected upon the property, which would greatly enhance the value of their remaining land, and that but for the falsehood and deception practiced upon them they would not have accepted the price that was paid them. So also in Sutton v. Morgan, 158 Pa. 204, it was held that a sale of land will be rescinded where it appears that the vendee was induced to purchase the land at twice its value by false representations of the vendor’s agents as to the demand for building lots, and that railroad shops were about to be erected in the neighborhood.

It is true that false statements to be deemed fraudulent in law must relate to something represented as an existing fact, but a statement “ apparently only of intention, purpose or opinion, may amount to a statement of fact, as where a person fraudulently misrepresents his intention in doing a particular act to the damage of another: ” Benjamin on Sales, sec. 449 et seq. In this connection is cited the case of Edgington v. Fitzmaurice, L. R. 29, Ch. Div. 459, where the directors of a company issued a prospectus inviting subscriptions for debentures, stating that the objects of the issue of the debentures were to complete alterations in the buildings of the company, to purchase horses and vans, and to develop the trade of the company, whereas the real object of the loan was to enable the company to pay off pressing liabilities. It was held that the misstatement of the object for which the debentures were issued was a material misrepresentation, and rendered the directors liable to an action for deceit.

The third matter of defense relied upon by the defendant is not clearly stated. But it may be fairly inferred from what is said that the defendant means to aver that the royalty of $810 was not included in the sum of $1,465 which was given by the plaintiff as the cost of furnishing the device. Whether or not any royalty was payable is a question of fact. If it was, then, as a matter of course, it should be included as a part of the cost of furnishing the device.

The judgment is reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Kenworthy v. Equitable Trust Company, Appellant.

      Appeals — Final decree — Interlocutory decree — Quashing appeal — Assignments of error — Trusts and trustees.

    An order directing a decree to be prepared in accordance with the findings of the trial judge in an equity suit, is not a final decree from, which an appeal may be taken.
    Assignments of error setting forth certain conclusions of law by the court below, but without giving the language in which such conclusions are stated are bad; so also with an assignment which' refers to more than one exception, and does not set out the exceptions referred to.
    An assignment of error is bad which alleges that the court committed error in not making certain findings, when it appeared that the appellant presented no requests for such findings, and filed no exceptions to the findings of the trial judge.
    The court quashed the appeal, but stated that the case was decided adversely to the appellant in Kenworthy v. Levi, 214 Pa. 235.
    It is always the duty of one purchasing from a trustee, to look at the nature and extent of the trust.
    Where a trust contains an express prohibition against incumbering the principal of an estate, a power to sell the trust estate does not include a power to mortgage it.
    If a trustee buys the trust property even at a public sale, which is brought about, or in any way controlled by himself, he will he presumed to buy and hold for the benefit of the trust.
    Argued March 26, 1907.
    Appeal, No. 67, Jan. T., 1907, by defendant, from decree of C. P. No. 5, Phila: Co., March T., 1903, No. 3,316, on bill in equity in case of Joseph W. Ken-worthy et al. v. The Equitable Trust Co., Administrator for the Estate of Moses T. Johnson, deceased, et al.
    Before Mitchell, C. J., Eell, Mestrezat, Potter and Stewart, JJ.
    Appeal quashed.
    Bill in equity for an injunction.
    On exception to the adjudication, Martin, P. J., filed the following opinion :
    An interest in certain real estate, some of which was situate in the city of Philadelphia, and some in the state of Indiana, became vested in Moses T. Johnson, under the terms of two deeds of trust in which James P. Henry and Mary Bell Henry, his wife, were the settlors. The trustee was required to pay a weekly sum to Robert J. Henry, a son, during his minority, and the balance of the net income to Mary Bell Henry for life, one of the settlors, with remainder to her issue.
    He was authorized to sell the whole or any part of the estate, and reinvest the proceeds in real estate, ground rents or first mortgages “ provided, however, that the principal of the estate shall not become impaired or incumbered.”
    The second .deed conveyed an interest in the real estate described therein “ under the same trusts, for the same uses and purposes and with the same powers,” and directed the trustee to adjust and settle certain claims and to deduct fees, commissions and expenses from the principal of the estate and to pay the sum of $1,800 to each of the settlors.
    Part of the real estate was sold by the trustee who invested $3,750 of the proceeds in a mortgage secured upon the premises 5221 Archer street in the city of Philadelphia. This mortgage was assigned to him as “ Trustee for Mary Bell Bowen,” that being then the name of the settlor Mary Bell Henry.
    Foreclosure proceedings were instituted, judgment entered and the mortgaged property sold by the sheriff for $50.00 to Moses T. Johnson, who took the title from the sheriff in his own name.
    ■Johnson subsequently executed a bond secured by the mortgage upon the property in the sum of $3,000, which was loaned to him by Ernest Schwehm, and applied this money to his own use.
    Hpon the death of Johnson, Joseph W. Kenworthy was substituted as trustee.
    The Equitable Trust Company having been appointed administrator of Johnson’s estate, presented a petition to the orphans’ court praying for leave to sell the property 5221 Archer street as part of his estate to pay his debts, whereupon a bill in equity was filed by the substituted trustee to enjoin the sale and the foreclosure of the mortgage held by Schwehm, and praying that the title to the premises be decreed to be in the substituted trustee.
    An answer was filed and the case (July tried. The trial judge decided that the power of sale contained in the deed of trust conferred the right in the trustee to mortgage, and that the mortgage made to Schwehm was valid, and directed that the bill, so far as it related to him, should be dismissed.
    Exceptions were filed on behalf of the substituted trustee.
    The trust contained an express prohibition against incumbering the principal of the estate, and, therefore, the power to sell in the present instance did not include a power to mortgage: Kenworthy v. Levi, 214 Pa. 235.
    It appears upon the record of the foreclosure proceeding that the plaintiff in the suit was “ Moses T. Johnson, trustee for Mary Bell Bowen.” Those who dealt with the title were apprised of the existence of a trust and it became a duty to ascertain its terms and conditions : Ken worthy v. Levi, 214 Pa. 235-239. Instead of making such investigation, the mortgagee was content with a declaration signed by Mary Bell Bowen that she has received her money in full from Moses T. Johnson, the trustee, for her entire interest in the mortgaged property 5221 Archer street, and that she had no claim or offset to make in the premises.
    The exceptions of Joseph W. Kenworthy, substituted trustee, to the findings and conclusions of the trial judge are sustained.
    Counsel to prepare a decree.

      Errors assigned were in the following form :
    The learned court below erred in finding that the trustee had no power to mortgage subsequent acquired real estate.
    The learned court below erred in concluding, as a matter of law, that the defendant, Schwehm, had notice of the deeds of trust.
    The learned court below erred in concluding as a matter of law that the defendant, Schwehm, was bound by constructive notice of the terms of the deeds or trust.
    The learned court below erred in sustaining the plaintiff’s exceptions to the trial judge’s finding.
    The learned court below erred in not finding that the defendant, Schwehm, was entitled to his mortgage and that it was a valid lien upon the premises 5221 Archer street.

      Henry J. Scott, with him Anthony A. Hirst, for appellant.

      Jacob Singer, with him Emanuel Furth, for appellee.
    May 20, 1907:
   Opinion by

Mr. Justice Potter,

The record in this case shows that no final decree had been entered when the appeal was taken. Nor is the entry of any decree assigned for error. Under the authority of Watkins v. Hughes, 206 Pa. 526 and other cases there cited, this appeal should be quashed. Not one of the five assignments of error filed is in accordance with the rules'. The first three assign certain conclusions of law by the court below, but they do not give the language in which those conclusions were stated. They merely give counsel’s ideas as to the effect of that language. Moreover, the court’s legal conclusions are not assignable for error, in the absence of a decree: Fitzpatrick v. Engard, 175 Pa. 393. The fourth assignment is bad, in that it refers to more than one exception and also because the exceptions referred to are not set out: Fitzpatrick v. Engard, 175 Pa. 393. The fifth assignment is bad because it alleges that the court committed error in not making certain findings, when appellant presented no requests for such findings and filed no exceptions to the findings of the trial judge: Beatty v. Harris, 205 Pa. 377; Swope v. Snyder, 209 Pa. 352. But if we disregard these irregularities, and look at the merits, it is apparent that the principal question in the case was decided adversely to appellant in Kenworthy v. Levi, 214 Pa. 235. That case involved the construction of the same deed of trust which is here in question. It was there held that the words, provided, however, that the principal of the estate shall not become impaired or incumbered,” took the case out of the rule of Lancaster v. Dolan, 1 Rawle, 231, and the decisions which follow it. Justice Brown said (p. 238): “ It is true there was power to sell the properties for the purpose of the trust, but there was an express prohibition against borrowing on them, for he could borrow on them only by incumbering them. As this is what he did, in the face of an express direction that he should not do it, the rule announced in Lancaster v. Dolan had no bearing upon the question before the court below.”

In Kenworthy v. Levi, the trustee had assigned a mortgage for a loan. There was no doubt but that the trustee would have had the power to sell and assign the mortgage absolutely. But it was held that under the restriction in the deed, he could not borrow upon it and, therefore, the collateral assignment was invalid.

If the trustee had no power to borrow upon the security of the mortgage, it necessarily follows that after the mortgage was foreclosed and the mortgage property conveyed to him by the sheriff, he could not borrow upon that security any more than upon the mortgage itself. So even if appellant is correct, and the property is to be regarded as personalty in the hands of the trustee, he would have no power to incumber it by a mortgage. If it is to be regarded as real estate, the same result follows. Certainly this is so if the mortgagee had notice of the trust. Appellant admittedly had notice that Johnson was a trustee for Mary Bell Bowen. ITe obtained and rested content upon a release from her. But inquiry or examination of the record of the trust deed would have shown that Mrs. Bowen had only a partial interest for life, and that the remainder was vested in her children. ITe would also have found that the trustee was expressly prohibited from impairing or incumbering the principal of the estate. It is always the duty of one purchasing from a trustee to look at the nature and extent of the trust. “ ITe may have the legal title, and yet have no authority to sell. His sale may be entirely unauthorized by the instrument that created the trust; it may have been forbidden: Bayard v. Farmers’ & Mechanics’ Bank, 52 Pa. 232 (237).

“ One who buys property from a trustee may or may not know that it belongs to an estate or is otherwise affected with a trust. In the latter case, where the circumstances are such as to put a prudent man on inquiry as to the character of the property conveyed, a court of equity regards such circumstances as constituting constructive notice and imputes to the purchaser a knowledge of all facts that such inquiry would have revealed. And where he knows or is chargeable with knowledge of the nature of the estate, it is his duty to go further and ascertain the nature and extent of the trustee’s power, in order that he may know whether or not he is violating his trust and misapplying the property in any way. . . . Ordinarily, the words ‘trustee’ or ‘in trust’ or ‘guardian,’ contained in a deed, mortgage, assignment or indorsement, are deemed sufficient to put a transferee on inquiry: ” 28 Am. & Eng. Ency. of Law (2d ed.), 1128-29.

There is no question in this case that Moses T. Johnson continued to hold the property purchased by him at sheriff’s sale as trustee for the same purpose and with the same powers and limitations as were defined in the original trust deed. As was said by Chief Justice Mitchell in Church v. Winton, 196 Pa. 107: “ If a trustee buys the trust property even at a public sale, which is brought about or in any way controlled by himself, he will be presumed to buy and hold for the benefit of the trust.”

Having had notice of the existence of the trust before he made the loan to Johnson, it was the duty of the appellant to inform himself of the nature and extent of the trust, and the limits of the power of the trustee.

The appeal is quashed.


author: Per Curiam,

text:
    Saurman’s Case.

      Election law — Registration—Appeals—Act of February 17, 1906, sec. 15, P. L. 49.
    By the Act of February 17, 1906, see. 15, P. L. 49, an appeal from the decision of the commissioners of registration refusing an application for registration, may be taken to the court of common pleas upon allowance by that court, but no further appeal is given by the statute.
    Argued March 27, 1907.
    Appeal, No. 119, Jan. T., 1907, by Benjamin E. Saurman, from order of C. P. No. 2, Phila. Co., dismissing appeal from the decision of the commissioners of registration.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Appeal dismissed.
    Appeal from commissioners of registration.

      Benjamin F. Saurman, for appellant.
    May 20, 1907:
   Per Curiam,

By the Act of February 17, 1906, sec. 15, P. L. 49, an appeal from the decision, of the commissioners of registration refusing an application for registration, may be taken to the court of common pleas upon allowance by that court, but no further appeal is given by the statute. This appeal must, therefore, be dismissed for want of jurisdiction.

Appeal dismissed.


text:
    Real Estate Investment Company’s Assigned Estate.

      Contract — Compromise agreement — Damages—Rescission of compromise agreement.

    Where a claim presented before one auditor for breach of an agreement to pay an existing debt in houses, fails, not because the claim is disallowed, but because there is no proof of the amount of loss, the plaintiff is precluded before another auditor distributing a different fund, from presenting and proving his claim on a quantum meruit for the work he did.
    Argued March 28, 1907.
    Appeal, No. 125, Jan. T., 1907,
    by William J. Murphy, from order of O. P. No. 1, Phila. Co., Dec. T., 1900, No. 140, sustaining exceptions to auditor’s report in Assigned Estate of the Real Estate Investment Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Exceptions to report of George W. Reed, Esq., auditor. See 215 Pa. 50.
    The court below filed the following opinion:
    The exceptions to the award to Mr. Murphy are sustained. He presented his claim under the compromise agreement before the former auditor and it was allowed. We held that the auditor was in error in his measure of damage as Mr. Murphy had not proved the value of the houses he was to get under that agreement, and referred the matter back to the auditor to let him prove the amount of his loss, to wit: the value of the houses. He declined to offer any evidence of that value, probably because there was no value to the houses above the incumbrance. The auditor then declined to award him anything and the Supreme Court sustained that finding. It must be borne in mind that it was never decided that he had no claim on the compromise agreement, but on the contrary the reverse was decided. He failed to get an award because he did not prove the amount of his loss. A new fund having arisen, and a new auditor appointed, Mr. Murphy seeks to rescind or declare ineffective the compromise agreement and claim on what he calls a “quantum meruit” for the work he did. This we think he cannot do. He has had his day in court and he cannot now change his claim as he seeks to do. When the new fund was raised he might perhaps still have presented evidence of the value of the houses if such a thing was possible, but that was the limit of his right.

      Errors assigned ivere in sustaining exceptions to auditor’s report in allowing claim of William J. Murphy. William J. Murphy appealed.

      Ormond Ramio, for appellant.

      Lincoln L. Eyre, with him Thomas Ridgway, R. M. Town-' send, Richcurd 8. Hunter and George Harrison Fisher for appellees.
    May 20, 1907:
   Per Curiam,

The judgment is affirmed on the opinion of the court below.


author: Pee Curiam,

text:
    Callaway v. Prettyman, Appellant.

      Real estate brokers — License—Nonresident—Oral employment of broker —Conflict of laws.

    Where a resident of New Jersey comes into Pennsylvania and enters into a contract as a real estate broker to sell real estate situated in New Jersey, he is not required to have had a license under the Pennsylvania statute, to make his contract valid; nor is the contract void by reason of the New Jersey statute requiring contracts of employment of brokers for the sale of real estate to be in writing, inasmuch as the law of the place of making a contract governs as to the formalities.
    In an action by a real estate broker who is a resident of New Jersey to recover on a parol contract for commissions for the sale of real estate in New Jersey, the printed statute of New Jersey requiring such contracts to be in writing, is not admissible under the plea of non assumpsit, but only by way of special matter, after due notice, under the rule of court.
    Argued March 29, 1907.
    Appeal, No. 392, Jan. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., March T., 1906, No. 3,237, on verdict for plaintiff in case of James W. Callaway v. Charles B. Prettyman.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Assumpsit for commissions on the sale of real estate. Before Carr, J.
    Yerdict for plaintiff for $5,501.67.
    On motion for judgment non obstante veredicto, Carr, J., filed the following opinion :
    On March 18, 1905, the defendant entered into a written contract to sell to Clara L. Hanstein the Boyal Palace Hotel, and she agreed to pay the sum of $400,000 in four cash payments and the balance of $300,000 by her bond. Six thousand dollars was paid upon the date of the agreement, and on August 5, 1905, Prettyman gave Mrs. Hanstein a receipt for $25,000 on account of the purchase price. The Bacharach Beal Estate Company paid the money to Prettyman, advancing it for the Hansteins, and being reimbursed by checks signed Clara L. Hanstein, by her attorney, Samuel Hanstein, and also by checks of Wolfe, Mrs. Hanstein’s brother. The Boyal Palace Hotel Company was then formed and chartered, and on September 16, 1905, at the request of Mrs. Hanstein, Prettyman conveyed the hotel to the company, to which Mrs. Han-stein also quitclaimed all her title and interest in the property under her agreement of sale with Prettyman.
    The verdict for the plaintiff establishes the facts that Pretty-man employed Callaway to sell or exchange the hotel, and that his efforts were effective in making the sale to Mrs. Han-stein, and sufficient evidence is upon the record to support the findings, Samuel Hanstein, her husband, acting as her agent.
    The act of assembly of this state requiring a real estate broker to take out a license does not apply, as Callaway was a resident of Atlantic City, N. J., and his occupation in that place was that of a real estate broker. In January, 1904, he learned that the defendants property, the Royal Palace Hotel, in Atlantic City, was in the market for sale, and called upon the defendant at his place of business in this city, and it was verbally agreed between them that, if Callaway should make a sale or exchange of the property at the price of $400,000, the defendant would pay him a commission of $5,000. Callaway did not attempt to sell the property in this city, but during the year 1904 tried to exchange it for property in New York. It was not shown that'he was engaged in the business of buying and selling properties in this city; and his arrangement with the defendant was a special contract for compensation for procuring a purchaser of a specific piece of real estate, the plaintiff coming to this city only for the purpose of securing the employment, and he did not, therefore, require a license: Chadwick v. Collins, 26 Pa. 138; Shepler v. Scott, 85 Pa. 329; Coles v. Meade, 5 Pa. Superior Ct. 334.
    Nor is the defendant’s contention sustained with regard to the effect of a New Jersey statute requiring contracts of employment of brokers for the sale of real estate to be in writing. In the first place, the rejection of the printed statute did not injure the defendant, inasmuch as upon cross-examination the plaintiff testified that he knew that the law of New Jersey required such agreements to be in writing, and the jury was instructed in the charge that, if they believed that the contract of employment of Callaway to sell was made at Atlantic City, N. J., the verdict should be for the defendant. But under the pleadings the offer of the printed statute of New Jersey was properly rejected, for it was • not admissible under the plea of non assumpsit, but only by way of special matter, after due notice, under the rule of court, No. 30, sec. 8: 9 Ency. Pleading and Practice, 705; 1 Taylor on Evidence, sec. 306, Miller v. Wilson, 146 Ill. 523. Moreover, the validity of the contract as affected by the statute of frauds is controlled by the law of this state and not by that of New Jersey, and Callaway’s contract of emploji'ment, made in this city, was valid, as the law of the place of making a contract governs as to the formalities : Story, Conflict of Laws, sec. 262; Wharton, Conflict of Laws, sec. 693a; Roubicek v. Haddad, 67 N. J. L. 522.
    The motions are dismissed.

      Errors assigned amongst others were (1) in dismissing motion for judgment non obstante veredicto; (7) in rejecting the statute of New Jersey requiring contracts relating to the sale of real estate by brokers to be in writing.

      J. Quincy Hunsicker, with him J. Quincy Hunsicker, Jr., for appellant.

      Stanley Folz, with him Hon E. Folz, for appellee.
    May 20, 1907:
   Pee Curiam,

The judgment is affirmed on the opinion of the court below.


text:
    Wharton’s Estate.

      Decedent’s estate — Illegitimates—Marriage—Evidence.
    A declaration in a father’s will that a boy named therein is “my son” is not in itself sufficient to support the legitimacy of the boy so as to enable him to participate in a portion of an estate left by his deceased father’s brother, where there is nothing to show that the testator and the boy’s mother were ever actually married, or that they ever lived together as man and wife, or were recognized as, or held themselves out to be, man and wife.
    Argued April 2, 1907.
    Appeal, No. 113, Jan. T., 1907, by Edward Wharton, Jr., from decree of O. C. Phila. Co., Jan. T., 1906, No. 659, dismissing exceptions to adjudication in Estate of Francis R. Wharton, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrkzat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Exceptions to adjudication.
    From the record it appeared that the decedent died on February 11, 1905, leaving a will whereby he gave his entire estate in equal shares to his sister, Alida Gouverneur Montgome^q and his brother, Alfred Wharton, Jr. The sister died on October 9, 1903, a widow without issue. The deceased left to survive him his brother, Alfred Wharton, and also a nephew, Edward Wharton, Jr., a son of Edward Wharton, Sr., a brother of the deceased. Edward Wharton, Jr., claimed a share in the estate. His legitimacy was denied. It appeared that Edward Wharton, Sr., made a -will on March 21,1872, and therein provided as follows: “ Second. I give and bequeath to my friend Mrs. Kate Lawrence the sum of $20,000 for the support of herself and my son Edward Wharton and in case of her death to be held in trust by my executors hereinafter named for the use and maintenance of my said son until he arrives at the age of twenty-one years, the principal to be paid to him at their discretion.” He died June 2, 1873.
    The auditing judge disallowed the claim for the reasons stated in the portion of the adjudication quoted in the opinion of the Supreme Court.
    Exceptions to the adjudication were overruled.

      Error assigned was the decree of the court.

      Thomas James Meagher, for appellant,
    cited: McCausland’s Est., 213 Pa. 189 ; Thewlis’s Est., 15 Pa. Dist. Rep. 361; Page v. Dennison, 1 Grant, 377; Pickens’s Est., 163 Pa. 14.

      M. Hampton Todd, with him Francis William Fawle, for appellee,
    cited : Page v. Dennison, 1 Grant, 377; Yardley’s Estate, 75 Pa. 207; Gimber’s Estate, 184 Pa. 436; Morgan’s Estate, 207 Pa. 519; Moore’s Estate, 211 Pa. 338; Plankinton’s Estate, 212 Pa. 235; McPherran’s Estate, 212 Pa. 432; Mace’s Estate, 213 Pa. 100.
    May 20, 1907 :
   Per Curiam,

The auditing judge below found, inter alia, that “itnot only does not appear that the claimant’s mother and Edward Wharton were ever actually married, but it does not appear that they ever lived together as man and wife or were recognized as or held themselves out to be man and wife.

And being of the opinion that legitimacy is based upon marriage — that it is only upon the presumption of marriage that legitimacy may be found — and that the facts upon which to base a doubt which appearing must and would be construed in favor of claimant are not present in this case — the auditing judge dismisses the claim.”

On this finding approved by the court in banc, the decree is affirmed.