author: Mr. Justice Mestrezat,

text:
    Burkhard, Appellant, v. Pennsylvania Water Company.

      Corporations — Water companies — Eminent domain — Effort to agree— Res adjudicata — Exhaustion of power — Filtration plant — Validity of charter — Collateral attack.

    1. On a bill in equity to restrain a water company from condemning land, the plaintiff cannot allege that the defendant company made no proper effort to come to an agreement with him as to damages, where it appears that the plaintiff had ample opportunity to present this objection in prior proceedings relating to the approval of the water company’s bond.
    2. A water company’s right to condemn land is not exhausted by one condemnation where it appears that it is necessary to condemn other land to supply the increasing needs of the public.
    3. A water company may condemn land for a filtration plant, although the use of filtration plants was unknown and deemed unnecessary at the time of the incorporation of the company.
    4. Complainant in a bill in equity to restrain a water company from condemning land cannot question the constitutionality of the act under which the defendant company was incorporated. This can only be done in a direct proceeding in which the commonwealth is a party.
    Argued Oct. 17, 1911.
    Appeal, No. 82, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., June T., 1909, No. 694, dismissing bill in equity in case of Walburga J. Burkhard et al. v. Pennsylvania Water Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Bill in equity for an injunction. Before Ford, J.
    The court filed the following opinion:
    FINDINGS OF FACT.
    1. The defendant, the Pennsylvania Water Company, is a corporation organized and doing business under the Act of May 29, 1901, P. L. 349, and consists of the merger and consolidation of several separate and distinct water companies, all incorporated under the laws of the commonwealth of Pennsylvania, and known as the Pennsylvania Water Company, with franchises covering Sterrett township; Fast Pittsburg Water Company, with franchises covering North Versailles township; Manufacturers’ Water Company, with franchises covering Patton township; People’s Water Supply Company, with franchises covering Wilkins township; Citizens’ Water Company, with franchises covering Braddock township; Rural Water Company, with franchises covering Wilkins township; Valley Water Company, with franchises covering Penn township; and Artesian Water Company, with franchises covering the borough of Wilkinsburg, all in the county of Allegheny and state of Pennsylvania, and is engaged in the business of pumping, storing, selling and distributing water. The office and principal place of business of the defendant company is in the county of Allegheny.
    2. Prior to 1899 the defendant company, or the companies merged, had provided and erected the works and machinery deemed necessary by the company for the raising and introduction into the districts embraced within its charter of a sufficient supply of pure water, and had provided and maintained the buildings, cisterns, reservoirs, pipes and conduits required for the reception and conveyance thereof.
    3. By sundry conveyances and assurances of law fully set out in paragraphs two and three of plaintiffs’ bill, the plaintiffs, Walburga J. Burkhard, Josephine Friday and Mary A. Saupp, are seized in fee and possessed of a certain tract of land situate in the township of Penn. The fee simple in said property is vested absolutely in the plaintiffs in the proportion of three-sevenths to Walburga J. Burkhard and two-sevenths each to Josephine Friday and Mary A. Saupp, excepting therefrom the coal thereunder, with the mining rights, if any, attached thereto.
    4. In the year 1890 (prior to the institution of proceedings in the court of common pleas No. 1, at No. 731, March Term, 1897) and within the period when the property was owned by Josephine Wolf or Theodore Heilman, predecessors in title of plaintiffs, the defendant company exercised its right of eminent domain over the property of plaintiffs, containing 5.8519 acres by the location and construction of a pipe line from its reservoir on adjoining lands, which pipe line was constructed along the township road known as the Puckety road, and within the boundary of the tract containing 5.8519 acres. The pipe line was constructed without the permission of Josephine Wolf or Theodore Heilman and without proceedings being instituted to condemn the right of way, and without damages being assessed or paid to Josephine Wolf or Theodore Heilman.
    5. At No. 731, March Term, 1897, the defendant company presented its petition to the' court of common pleas No. 1 representing that it had exercised its right of eminent domain over the tract of land owned by plaintiffs for the purpose of laying and constructing thereon a thirty-inch cast-iron pipe line for the transportation of water from its pumping station on the Allegheny river at Wildwood to its reservoir on defendant’s land immediately adjoining the land now proposed to be taken, and prayed that its bond in the sum of $30,000 therewith filed be approved. Josephine Wolf, to whom the bond was tendered, was the owner of the property then proposed to be taken and was plaintiffs’ predecessor in title. The pipe line was not constructed.
    6. About June 20, 1903, the defendant company presented its petition to the court of common pleas No. 2 of Allegheny county at No. 733, July Term, 1903, representing that it had exercised its right of eminent domain over the property now owned by the plaintiffs and had taken a portion thereof for the purpose of erecting a reservoir thereon, and prayed the approval of a bond in the sum of $15,000 then filed. Thereafter, on December 19, 1903, the defendant company presented its petition to the court of common pleas No. 2 averring that the company had investigated the adaptability of the land for said purpose and found it unsuitable, and in view of this and of the excessive price and determined opposition to condemnation, the company was desirous of discontinuing the proceedings and withdrawing the bond, which petition was allowed, and by consent of court the bond was withdrawn April 23, 1904.
    7. In 1907, to meet the demand for an adequate supply of pure and wholesome water, it became and was necessary for the defendant company to enlarge its plant by the construction of a filtration system, and for the purpose of erecting thereon a filtration plant and other works for the reception, filtration and conveyance of water, the defendant company in February or March, 1909, surveyed and appropriated 5.8519 acres of the tract owned by the plaintiffs.
    8. In March or April, 1909, but prior to April 16, W. C. Holly, the superintendent, and acting as the authorized agent of the defendant company, visited Walburga J. Burkhard, one of the plaintiffs, at her place of residence on Penn avenue, in the city of Pittsburg, explained the company’s purpose of taking and appropriating á part of the tract of land situate in Penn township, of which she was one of the owners, and offered her the sum of $10,000 for the part proposed to be taken. Mrs. Burkhard refused the offer, stating that the owners, the plaintiffs, had a cash offer of $40,000 for the entire tract. After the offer had been made and rejected, Josephine Friday, one of the plaintiffs, entered the room where the conference was being held and Mrs. Burkhard, either in the presence of Mr. Holly or immediately after his departure, informed Mrs. Friday of the offer made by Mr. Holly.
    9. That portion of plaintiffs’ property containing 5.8519 acres was duly and properly appropriated by the defendant company for its corporate uses by a resolution of its board of directors passed at a regular meeting of the board, held on April 16, 1909.
    10. On April 17,1909, the defendant company presented to the court of common pleas No. 2 of Allegheny county, at No. 268, July Term, 1909, its petition, representing, inter alia, that the defendant company had been unable to agree with the owners of the land (plaintiffs herein) upon the amount of damages sustained by reason of taking and occupying the land appropriated; that a bond had been tendered to and refused by the owners, and prayed the approval of bond in the sum of $30,000 then filed. On April 22 exceptions to the sufficiency of the bond were filed by the owners and thereafter, on May 4, 1909, upon leave of court, the bond was withdrawn. On May 11 the defendant company filed its bond in the sum of $30,000 together with a petition praying its approval. On the same day exceptions to the sufficiency of the bond were filed by the owners. On the day following, May 12, the court entered the following order, “Exceptions to the bond filed herein are all overruled except the first, without, however, passing upon the merits of the controversy sought to be raised by them and without prejudice to the except-ants’ right to prosecute them in any other form, and the first exception is sustained as to the amount of bond, being of the opinion that the bond should be in the sum of $40,000. A bond in that amount with the same sureties and in the same form will be approved.” And on May 14 bond of the defendant company and its sureties in the sum of $40,000 was presented in open court and approved and ordered filed.
    11. Shortly after the approval of the bond by the court of common pleas No. 2 the defendant company entered upon and occupied the 5.8519 acres taken and appropriated, and ever since has been and is now in possession thereof, and has erected thereon, or has in course of erection, the sedimentary and settling basins, the septic tank and other appliances and apparatus necessary in the construction of a filtration system.
    12. To enable the company to erect and construct a filtration plant, it was necessary that the company acquire additional land either, by purchase or condemnation. In taking and appropriating plaintiffs’ land for that purpose the defendant company exercised its right in good faith. The land taken adjoins the defendant’s land, upon which is erected its reservoir No. 1 and in location and elevation is adapted to the requirements of a filtration plant.
    CONCLUSIONS 03? LAW.
    1. The approval by the court of common pleas No. 2 of Allegheny county of the bond filed by the defendant company was an adjudication that an attempt had previously been made by the company to settle with the plaintiffs, owners of the property, and that everything had been done entitling the defendant company to file the bond.
    2. A water company is vested by law with the power to acquire by purchase or condemnation such lands as may be necessary for its corporate uses and purposes. This power is not exhausted by a taking for an original construction of its plant and instrumentalities, but may be exercised when by the growth of population and increased demand it becomes necessary to acquire lands for the enlargement or extension of its plant.
    3. The defendant company by a prior exercise of its right of eminent domain over plaintiffs’ land did not thereby exhaust its power to condemn such additional parts thereof as might reasonably be required for the erection thereon of a filtration plant necessary to enable the company to furnish the public with an adequate supply of pure water.
    4. The defendant company is vested by law with the selection of a location for the plant and instrumentalities necessary for the supply of pure water, and this discretion cannot be inquired into unless it be shown that its action was capricious or wantonly injurious. There was no evidence in this case which would justify the court in reviewing the discretion exercised by the board of directors of the defendant company in taking and appropriating part of plaintiffs’ land.
    5. The plaintiffs in this proceeding cannot impeach the constitutionality of the act of assembly under which the defendant company is formed.
    6. The bill should be dismissed with costs.
    The questions raised by plaintiffs and urged upon argument are:
    (a) Was a bona fide effort made by the defendant company to effect an amicable agreement with the plaintiffs as to compensation for the land sought to be taken, and if not, what is the effect of its failure to make such an attempt?
    (b) Had the defendant company prior to the filing of the bond in this matter exhausted its right of eminent domain over plaintiffs’ property?
    (c) The Act of May 29,1901, P. L. 349, under which the defendant company is organized and doing business, is unconstitutional.
    We will consider the questions in order:
    The contention of the plaintiffs is that even conceding that an effort has been made to agree with Mrs. Burkhard, yet there was no evidence to show that an attempt had been made to agree with either Mrs. Saupp or Mrs. Friday and that such effort not having been made the court of common pleas No. 2 had no jurisdiction to entertain proceedings in condemnation and to approve and confirm the bond tendered.
    In Bland v. Tipton Water Co., 222 Pa. 285, wherein a like contention was urged, Mr. Justice Brown, said:
    “We need only repeat what was said in Wadhams v. Lackawanna and Bloomsburg Railroad Co., 42 Pa. 303, Tt is now insisted that there was no evidence of any attempt by the defendants to settle with the plaintiffs, and agree upon the damage before they filed the bond given as security. Hence it is inferred that the tender of the bond and the filing of the same was authorized by law and the defendants were not empowered to appropriate the land for said road. Though the acts of assembly do not in terms require any attempt to make a settlement before a tender of bond or filing it in the common pleas, it is perhaps a just inference from their language that there should be some evidence of inability of the parties to agree before the court shall undertake to pass upon the security offered. But the very offer of the bond is an assertion by one of the parties that they cannot agree and is in itself some proof of such inability, for without the consent of both such an agreement cannot be made and if it is not so, the action of the court approving the sureties and directing the bond to be filed involves an adjudication that everything has been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties as to all matters adjudicated therein directly and to all facts which were essential to that adjudication. ’ The act of 1874 does not in terms require any attempt to make a settlement before a tender of a bond or filing in the common pleas. ”
    In this case, the bond first filed, on exceptions to the amount being sustained, was withdrawn and a second bond filed, thereby indicating that the parties had not and could not agree.
    The defendant company was incorporated for and engaged in supplying water to a number of boroughs, townships and districts. Prior to 1899 the company maintained a plant consisting of a pumping station, reservoirs, and apparatus for the raising and storing of water, and had laid the mains and lines required for its distribution. It is not denied by the plaintiffs that the plant operated by the defendant was inadequate to supply a sufficient quantity of pure water nor that to meet the demand and make reasonable provisions for the future it was necessary to construct a filtration plant, but they contend that the defendant had therefore exercised its right of eminent domain over plaintiffs’ land of which the 5.8519 acres was a part condemning a part thereof for the construction of a pipe line, an additional part for the erection of a reservoir, and by the laying of a pipe line along the public road known as the Puckety road, thereby exhausting its power, and is now unable by the exercise of the right of eminent domain to take and appropriate any additional part of the land affected by the condemnation proceedings or by the laying of the pipe line.
    The power of a water company is not exhausted by a taking of land for an original construction of its works. It is not bound to provide for a demand which could not have been foreseen. The increase in trade and business, the change in conditions, the extension of municipalities and growth in population may necessitate increased facilities and an enlarged plant.
    The cases relied upon by the plaintiffs hold that when a railroad company has exercised its power of location and adopted a route for its line there is no necessity or authority for any further exercise of that power.
    In the case of Keller v. Riverton Water Co., 34 Pa. Superior Ct. 301, the distinction between the rights which may be exercised by a railroad company in the location of its routes, and the rights of water companies was pointed out and it was held that a water company does not exhaust its rights to condemn land by a single exercise of the right of eminent domain. In that case the court says:
    “When it appears, as it does in the present case, that the performance of the duties it owes to the public requires a second exercise of a power expressly conferred on a corporation, it seems both anomalous and unreasonable to hold that such power is exhausted by a single use of it. ”
    We therefore hold that the defendant company had a right to acquire by purchase or condemnation such additional land as was required for the erection and construction of a filtration system necessary for an adequate supply of pure water.
    The act of May 29,1901, is entitled, “An act supplementary to an act to provide for the incorporation and regulation of certain corporations, approved April 29, 1874, providing for the merger and consolidation of certain corporations.”
    Section 1 of the act provides that it shall be lawful for any corporation now or hereafter organized under or accepting the provisions of the act of 1874, or any of the supplements thereto, or of any other act of assembly authorizing the formation of corporations to buy and own the capital stock and merge its corporate rights with and into those of any other corporation, so that such corporations may consolidate.
    The plaintiffs contend that the act offends against art. Ill, sec. 3, of the constitution, in that the subject is not clearly expressed in the title for the reason that the title gave no notice that the act provided for the merger and consolidation of corporations organized under the supplements to the act of 1874, nor under “any other act of Assembly authorizing the formation of corporations.”
    It has uniformly been held that the validity of a charter for a public purpose cannot be determined in a collateral proceeding by a private suitor. It can only be done in a direct proceeding in which the commonwealth is a party. “Whether for any reason the charter of a corporation was originally invalid, or has been forfeited is a question which the commonwealth only can raise:” Olyphant Sewage-Drainage Co. v. Olyphant Boro., 196 Pa. 553. In Windsor Glass Co. v. Carnegie Co., 204 Pa. 459, it was held that the Act of June 19, 1871, P. L. 1360, enables a private suitor to demand that the charter to do the thing complained of shall be shown. “But it does not put him,” as the court says, “in the Commonwealth’s place, or clothe the court at his instance with the Commonwealth’s general power of inquiry. The inquiry is limited to the nature and extent of the franchises prima facie conferred by the charter and does not extend to the validity of the charter itself.”
    If the act attempting to confer the power was invalid of course the power did not exist, but this plaintiff cannot be heard to make that objection and hence the objection on that ground fails: Freeland v. Pennsylvania Central Insurance Company, 94 Pa. 504.
    If it be conceded that the plaintiffs may question the existence of the defendant company as a de facto corporation by showing that the act under which the company was incorporated is invalid, yet the objection urged by the plaintiffs would not justify the court in declaring the act unconstitutional.
    The Act of April 29,1874, P. L. 73, had for its object the establishment of a uniform and convenient system for the formation and regulation of corporations and is known as the corporation act of 1874. Clause 9 of sec. 2 authorizes the incorporation of companies for the supply of pure water. The Act of May 16,1889, P. L. 226, is "A further supplement to the Act of 1874,” amending secs. 2 and 34 by providing, inter alia, for the incorporation of additional corporations.
    The act of 1901 is a further supplement to the act of 1874. That its title does not refer to the act of 1889, itself a supplement to the act of 1874, we do not regard as material. It is unnecessary in the title of a supplementary act to refer to the fact that a previous supplement or amendment to the original act has been enacted.
    The title of the act has but one subject clearly expressed, and to it every provision is germane. No one could read the title to the act and fail to understand that the purpose of the legislation related to the merger and consolidation of corporations and it is therefore in harmony with the constitutional requirements.
    Let a decree nisi be entered accordingly.

      Error assigned among others was the decree of the court.

      William A. Griffith, with him David E. Mitchell and L. H. Campbell, for appellants.
    — The power of a water company to condemn additional portions of the same tract of land for a plant is exhausted by the taking and condemnation in the original construction of its plant adequate at the time of construction: McKeen v. Canal Co., 49 Pa. 424; McKay v. Water Co., 6 Pa. Dist. Rep. 364; Poughkeepsie Bridge Co., 108 N. Y. 483 (15 N. E. Repr. 601).
    The powers granted to the defendant corporation must be interpreted in accordance with the intention of the legislature. The intent must be gathered from the facts and circumstances obtaining and in the mind of the legislature at the time the legislation is passed: Com. v. Gouger, 21 Pa. Superior Ct. 217.

      George B. Gordon, with him William Watson Smith and Duff & Carmack, for appellee.
    — The record of the court of common pleas No. 2 approving bond which had been tendered to appellants to secure damages sustained by the appropriation of their ground is necessarily conclusive as to the point raised by the appellants that there was no sufficient effort to agree before the bond was filed: Wadhams v. R. R. Co., 42 Pa. 303; Bland v. Water Co., 222 Pa. 285; Reitenbaugh v. R. R. Co., 21 Pa. 100; St. Louis & San Francisco R. R. Co. v. Southwestern Tel. & Tel. Co., 121 Fed. Repr. 276.
    The right of the Pennsylvania Water Company to appropriate was not exhausted by its prior exercise of the power of eminent domain: Peffer v. Penna. Water Co., 221 Pa. 578; Keller v. Water Co., 34 Pa. Superior Ct. 301; Ligat v. Com., 19 Pa. 456; Phila., Wilmington & Baltimore R. R. Co. v. Williams, 54 Pa. 103; Pittsburg, Virginia & Charleston Ry. Co. v. Pittsburg, Canonsburg & State Line R. R. Co., 159 Pa. 331; Edgewood Water Co. v. Troy Water Co., 7 Pa. C. C. Rep. 476; Penna. R. R. Co. v. Miller, 112 Pa. 34; McClinton v. Railway Co., 66 Pa. 404.

      January 2, 1912:
   Opinion by

Mr. Justice Mestrezat,

The elaborate opinion filed in the court below relieves us from the necessity of an extended discussion of the questions raised by the record. They have all been satisfactorily disposed of by the learned trial judge.

Conceding it to have been the duty of the defendant company prior to presenting its bond for approval, to make an attempt to agree with the owners as to the amount of compensation they ought to receive for the damages sustained by the appropriation of their property, that question was adjudicated in the proceeding in the common pleas in which a bond was approved by the court. The plaintiffs there had an opportunity to raise any and every question which would have prevented the approval of the bond, and the decree entered by the learned court approving the bond decided every question which might have been raised. It is now too late to raise any question which might have been adjudicated in that proceeding, and that includes the question whether a bona fide effort was made by the defendant company to effect an amicable agreement with the plaintiffs as to compensation for the land taken prior to presenting the bond to the court for approval. “The very offer of a bond,” says Strong, J., in Wadhams v. Lackawanna & Bloomsburg Railroad Co., 42 Pa. 303, 310, “is an assertion by one of the parties that they cannot agree, and it is in itself some proof of such inability, for without the consent of both such an agreement cannot be made. And if it were not so, the action of the court approving the sureties, and directing a bond to be filed, involves an adjudication that everything had been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made.”

We have no doubt of the right of the defendant company to condemn additional land for its plant. It was not denied, as appears by the court’s opinion, that the plant was inadequate to supply its patrons with a sufficient quantity of pure water. If the company has exhausted its power to condemn land for the use of the filtration plant it cannot comply with our decree which becomes a brutum fulmen and should never have been entered. But we do not agree with that contention. The defendant was incorporated for the purposes of furnishing water to the public in certain designated territory, and the right of eminent domain was conferred for the purpose of enabling it to exercise its functions during the continuance of its corporate existence. Its charter authorizes it to. furnish a 'sufficient supply ’ of pure water to the public and empowers it to appropriate lands and water 'to the extent necessary to accomplish the purpose. The act of assembly under which the defendant was incorporated does not limit or confine the company to any specific quantity of land or water which it may take for carrying out the purposes of its incorporation. On the other hand, the charter authorizes it to exercise the right of eminent domain to the extent necessary to secure land and water sufficient for its charter purposes. This is necessarily a continuing power, otherwise the first appropriation having exhausted the power, the company could not fulfill its charter duties to the public and supply the increasing demand occasioned by the growth of the population of the territory in which it is authorized to supply water. This duty is as imperative as the duty to supply the original population of the territory covered by the charter. Hence the increasing demands on the company for additional service compel the company to enlarge its plant as occasion requires which can only be done effectively by the exercise of the power of eminent domain. To deny it the right to exercise this power as the exigencies of its business demand is to defeat the purpose for which the company was incorporated and to prevent it performing a duty imposed by its charter. It will not be assumed that the state intended to authorize a water company to supply water to the public perpetually as it does in such charters, and withhold from the company the effective means of carrying the power into execution.

The contention that the defendant had no right to condemn land for a filtration plant, because filtration was unknown and was deemed unnecessary at the time of the incorporation of the water company, is untenable. The company was incorporated for the purpose of supplying water to the public in the territory defined by its charter. It may and should employ any effective modern means which will enable it to accomplish the purpose. It is not confined to the means and instrumentalities which were in use in 1874 when the general corporation act was passed. The law defines the purposes of the company’s incorporation and requires it to use the means necessary to accomplish the purpose. It is the duty of,the company to use the best means known at present to furnish pure water to the public. If those means be a filtration plant it should be constructed, and if necessary to secure land for the purpose the company may avail itself of the right of eminent domain. To hold otherwise would clearly be to deny to the company a power conferred by its charter.

The decree is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Hanlon v. Martin, Appellant.

      Trusts and trustees — Dry trust — Deed—Estate in fee simple.

    Where a person conveys land by a deed to a trustee in trust for the use of the grantor’s wife “for and during her natural life so that she shall have the rents, issues and profits thereof and from and after the decease of the said” wife, “in trust for the use of the heirs of the body of said” wife by the said grantor “begotten or to be begotten forever,” the wife and her children by the grantor, after the latter’s death, may execute a valid mortgage of the land, inasmuch as the trust has become a dry trust and the legal title has become executed in the grantor’s wife.
    Argued Oct. 18, 1911.
    Appeal, No. 64, Oct. T., 1911, by defendants, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1910, No. 245, on petition for citation in case of Mary A. Hanlon et al. v. Mary Martin, Anastasia Woods, Henry John Martin, Patrick Charles Martin and Mary E. Daflinger.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for citation under act of April 20, 1905.
    Evans, J., filed the following opinion:
    This case comes before the court on a petition for a citation on the defendants to show cause why they should not deliver possession to the petitioners, and the answers to that citation. *
    The petition and answers do not state with very great accuracy all the facts, but from the petition and answers, and the admissions of counsel at bar, the following are the facts which are material to this case:
    On September 29, 1866, Hugh Martin, being then the owner of the property in dispute, made a deed of conveyance to Patrick Martin, in consideration of $1.00; “In trust, nevertheless, for the use of Mary Martin, wife of said Hugh Martin, for and during her natural life so that she shall have the rents, issues and profits thereof and from and after the decease of the said Mary Martin, wife of Hugh Martin as aforesaid in trust for the heirs of the body of said Mary Martin by the said Hugh Martin, begotten or to be begotten forever.”
    Hugh Martin has been dead many years. Patrick Martin died on May 7, 1890, and no trustee was appointed in his place. Prior to his death, Patrick Martin, the trustee, leased the premises for oil and gas as trustee, and did other acts indirect to the ownership of the legal title. On February 1, 1907, the respondents, Mary Martin, the widow of Hugh Martin, Anastasia Woods, Henry John Martin and Patrick Charles Martin, being all the children of Mary and Hugh Martin, executed a mortgage to Elizabeth Renvers on the property in dispute to secure the payment of $7,000. Default having been made in the payment of the interest a scire facias was issued on the said mortgage, and prosecuted to judgment, and lev. fa. issued to the sheriff, on which writ the premises were exposed to sale and the property sold on February 9,1910, to Elizabeth Renvers, who received a deed for the same dated February 26,1910. The above petitioners became the owners of the property by deed from Elizabeth Renvers, March 31, 1910.
    The answer of the respondents’ claims that the deed from Hugh Martin to Patrick Martin created an active trust, that the legal title was in the trustee, and that the mortgage from the respondents was void.
    It will be observed that Hugh Martin, husband of Mary Martin, was dead many years before the execution of the mortgage, and therefore there can be no question of a separate use trust. That question being eliminated, as we view the language of the deed, the trust was a dry trust and the deed passed the legal title to Mary Martin.
    It follows then that the mortgage being valid, the title of the respondents passed with the sheriff’s deed, and they have no right to hold possession as against the petitioners.

      Error assigned was in entering judgment for the petitioners.

      Joseph R. Conrad, with him Alexander E. Eckles, for appellant, cited:
    Bentley v. Kauffman, 86 Pa. 99; Earp’s App., 75 Pa. 119; Harbster’s Est., 133 Pa. 351.

      Thomas L. Kane, with him W. J. O’Donnell, for appellees, cited:
    McCune v. Baker, 155 Pa. 503; Hemphill’s Est., 180 Pa. 95; Eshbach’s Est., 197 Pa. 153; Shower’s Est., 211 Pa. 297.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Evans.


text:
    Wilcox, Appellant, v. Central Accident Insurance Company of Pittsburg.

      Insurance — Accident insurance — Walking on railroad tracks — Unnecessary exposure to danger.

    Where a policy of accident insurance provides that the policy shall not cover any injury, fatal or otherwise, resulting from “walking or being on the roadbed or bridge of any railway,” or from “unnecessary exposure to danger,” no recovery can be had under the policy where it appears that the insured was killed while attempting to cross the tracks of a railroad at a point where there was no public crossing nor placé ordinarily used as a crossing; that the insured was not required by any business pursuit or necessity to cross at this point, but only did so to avoid a detour; and that he could have seen the train which struck him, in time to avoid the accident, if he had looked.
    Argued Oct. 18, 1911.
    Appeal, No. 83,
    Oct. T., 1911, by plaintiff, from judgment of C. P. No. 1, Allegheny Co-., Dec. T., 1903, No. 87, for defendant non obstante veredicto in case of Peter K. Wilcox, Administrator of the Estate of Oscar Ray Wilcox, deceased, v. The Central Accident Insurance Company of Pittsburg.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a policy of accident insurance.
    At the trial the jury returned a verdict for plaintiff for $2,900.
    On motion for judgment for defendant non obstante veredicto, Ford, J., filed the following opinion:
    This is an action on a policy of insurance. At the trial the defendant requested the court to instruct the jury that under the law and the evidence the verdict must be for the defendant. The request, however, was refused and a verdict found for the plaintiff. The defendant now moves for judgment non obstante veredicto, alleging error on the part of the court in refusing the request for binding instructions.
    The policy sued upon is dated February 26, 1903, and insures Oscar Ray Wilcox against loss arising from certain accidents, and covenants and agrees in case of death caused solely by injury arising from external violence and accidental means to pay to his legal representatives the sum of $2,000.
    The policy is made subject to certain conditions and prohibitions; among others, the following:
    “(1) This insurance does not cover .... any injury, fatal or otherwise, of which there is not visible mark on the body, nor accident, nor death, nor loss of limb or sight, nor disability resulting wholly or partly, directly or indirectly, from the following causes, conditions or acts, or happening when the insured is affected by, or is under the influence of any such cause, condition or act, viz.:
    “. . . . Injuries intentionally inflicted upon the insured by himself or by any other person (injuries from unprovoked assaults excepted) getting on or off a moving conveyance using steam as a motive power (cable and electric cars excepted), or being in or on such conveyance not provided for transportation of passengers, or walking or being on the roadbed or bridge of any railway, railway employees excepted, violation of law; resisting arrest or fleeing from justice; voluntary over-exertion .... unnecessary exposure to danger.”
    It is contended by the defendant company that the insured met his death while walking or being on the roadbed of a railway, and was caused by unnecessary exposure to danger.
    The circumstances attending upon the accident which occurred on March 18, 1903, are not in dispute.
    The insured at the time of his death was about twenty years of age and resided with his parents in the village of Springdale, situate along the line of the West Penn Railroad some fifteen miles east of Pittsburg. He had lived there about five years. The Wilcox home fronted on a public highway which ran parallel with the right of way of the West Penn Railroad, upon which were maintained two tracks known as the east-bound and west-bound tracks. At this point there is no crossing of any character, the nearest one being approximately 300 feet east of the place of the accident, while there is another distant about one-quarter of a mile west. The tracks are below the grade of the public highway, and to reach the tracks from the home of the insured it was necessary to cross the public road and descend a bank about four feet in height.
    In the evening, near seven o’clock, on the day of the accident the insured left his home, expressing an intention to visit a neighbor residing on the opposite side of the railroad. It appears that he reached the west-bound track, the one adjoining the public road, and as he stepped on or over the first rail was struck by the locomotive of a passenger train running west, sustaining injuries which resulted in his death. Mr. Kennedy, the engineer operating the passenger train, testified that he first saw Wilcox at a point distant about fifteen feet, and added, “The young man came down from the side of the public road and started or attempted to cross the track in front of the engine. We struck him and threw him off the right side.”
    An accommodation had been stopped at the switch and was standing on the east-bound track, the last coach of which was just opposite the place of the accident. Walter Holmes, a brakeman on this train, testified that he was standing'on the rear coach and said, “When I first saw this boy he was coming over the bank, which is between the railroad, the north track and the public road, going to the railroad. I called him to stop, but he did not hesitate a second. He just came down on to the track, and I called to him again to look out, for I heard this train coming. ... At that instant the train came down and struck him.”
    Mr. Barnes, called by the plaintiff, testified that he first saw Wilcox “as he started down over the bank and I hollered to him. Just about the time I hollered, the brakeman on the rear end of the train hollered at him. It was too late then for him to stop. He had started then, and after he got on the track we yelled again at him, but he did not appear to be able to get off.”
    It is apparent that the young man crossed the road, walked down the embankment and as he stepped upon or perhaps over the first rail of the west-bound track he was instantly struck by the engine. From the place where he descended the bank he had an unobstructed view looking east for a distance of about 300 feet.
    The first question for consideration is as to whether or not the injuries, resulting in the death of the insured, were directly or indirectly due to “walking or being on the roadbed or bridge of any railway.”
    In DeLoy v. Ins. Co., 171 Pa. 1, the trial judge in construing a similar clause instructed the jury “that it was intended to cover all cases where a person is on a railroad bed when he had no business there. But when his business or other necessities call him on the railroad track or crossing for lawful purposes, and when he is injured while in the pursuit of his lawful calling; or when it becomes necessary to use the roadbed for a lawful purpose, and he should be accidentally killed, without any knowledge upon his part of the danger, he ought not in such case be excluded from recovery, if- there was nothing else in the case.” The instructions were approved as substantially correct because in harmony with the ruling of the court, on the same clause, in Burkhard v. Travelers’ Ins. Co., 102 Pa. 262, wherein it was held: “ The language of the exception clearly implies two thoughts: one, that “the insured must not be on the roadbed or bridge for any length of time; the other, that the prohibition is not to guard against injury resulting from a defective roadbed or defective railway bridge, but the danger of injury from trains passing thereon.”
    The phrase, “walking or being on a railroad bridge or roadbed,” cannot be construed with absolute literalness. If the insured had been walking along the track longitudinally he clearly would have been within the clause. Had he been crossing where there was a public way (Dougherty v. Pacific Mutual Life Ins. Co., 154 Pa. 385), or if he was on the track for a lawful purpose, he would not have been within it. The question therefore is, whether he had a right to pass over the railroad at the point he chose to do so. If he was a trespasser in crossing as he did he would be walking or being on the roadbed within the meaning of the policy: Keene v. N. E. Mutual Accident Association, 164 Mass. 170 (41 N. E. Repr. 203).
    The insured was not attempting a crossing at an established crossing, nor at a place ordinarily used for that purpose. Neither any business pursuit nor necessity of the occasion called him to make the crossing at that point. But it is contended, however, that the east-bound train was standing at or near the crossing and the insured undertook to cross behind the train, apparently thinking this the safer place, the prudent thing to do. The evidence does not show that the accommodation train obstructed the crossing or made passage over it dangerous. It was the shorter route to the home of his friend and avoided a walk for a distance of about 300 feet, and a return of about the same distance.
    Under all the circumstances, we are of opinion that the accident to the insured was at a time when he was violating the terms of the policy. But conceding that the insured had a lawful right to cross the tracks at that point, yet we are of opinion that his death was caused by an unnecessary exposure to danger.
    Our attention has not been called to any case in which an exception in the precise form contained in this policy has been construed. In Burkhard v. Travelers’ Ins. Co., 102 Pa. 262, the exception was voluntary exposure to danger. In DeLoy v. Travelers’ Ins. Co., 171 Pa. 1, and in Rebman v. General Accident Ins. Co., 217 Pa. 518, the words of the policy excepted “disability from voluntary exposure to unnecessary danger.”
    In the case at bar the word “voluntary” does not appear in the contract. A distinction has been drawn between policies which except voluntary exposure to unnecessary danger and those which except exposure to unnecessary danger, and it was held in Shevlin v. Accident Association, 94 Wis. 180 (68 N. W. Repr. 866), that the word “voluntary” led to the construction that the negligence contemplated was a conscious exposure to danger, gross negligence, but that the words “unnecessary exposure” include all cases where the exposure is attributable to negligence on the part of the insured. This case with the distinction so drawn was cited and approved in Sargent v. Central Acc. Ins. Co., 112 Wis. 29 (87 N. W. Repr. 796).
    In Biehl v. General Acc. Assur. Corp., 38 Pa. Superior Ct. 110, the exception in the policy is from “liability resulting from unnecessary exposure to obvious risk or injury or obvious danger,” and it was held there the meaning is the same as if the exception had been expressed in the words “voluntary exposure to unnecessary danger,” and in construing the words used, the Superior Court justice said, “The words mean an exposure with knowledge, or under circumstances from which knowledge would be inferred, to a risk it was not necessary to incur.” The claim in the policy must be held to apply whenever the insured is injured in a manner that should have been anticipated, while voluntarily doing something that ordinary prudence would forbid.
    In this case it is to be noted that the insured crossed the public road to the embankment, he was at an elevation of about four feet above the tracks, his view for a distance of about 300 feet was unobstructed, the distance to the west-bound track did not exceed ten feet, the brakeman on the rear of the accommodation heard the approaching train, as did Mr. Barnes; that the insured was struck instantly when his foot touched or crossed the first rail, and, moreover, he had resided in that vicinity for five years; he knew or was presumed to know that passenger and freight trains frequently passed the point. Under all the circumstances in evidence, it is difficult to account for the accident on any theory except that without looking or listening the insured walked on the railroad track in front of the locomotive and was injured in a manner that should have been anticipated, while doing something which ordinary prudence would forbid.
    And we are of opinion that judgment should be entered for the defendant notwithstanding the verdict.

      Error assigned was in entering judgment for defendant n. o. v.

      William F. Wise, with him Charles S. Wise, for appellant.
    — The conflicting testimony and inferences to be drawn from it are for the jury and not for the court, either at the trial or on the motion for judgment non obstante veredicto: Lamb v. Prettyman, 33 Pa. Superior Ct. 190; Bond v. Penna. R. R. Co., 218 Pa. 34; Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Price v. Nat. Accident Society, 37 Pa. Superior Ct. 299.
    Whether the act is a wanton exposure to obvious danger, is a question for the jury: Biehl v. General Accident Assur. Corp., 38 Pa. Superior Ct. 110; Trew v. Railway Passengers’ Assurance Co., 6 Hurlstone & Norman, 839; Duncan v. Mut. Accident Assn., 59 N. Y. Superior Ct. 145 (13 N. Y. Supp. 620).
    Where a case depends on oral testimony it must be submitted to the jury, even if uncontradicted: Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28; Gates v. Penna. R. R. Co., 154 Pa. 566; Weiss v. Penna. R. R. Co., 79 Pa. 387.

      Joseph A. Langfitt, with him H. W. McIntosh and Thos. F. Garrahan, for appellee.
    — Under the evidence it clearly appears, as the learned court below found, that the accident to the insured occurred at a time when he was violating the terms of his policy; or, in other words, that the accident was one which was expressly excepted in the policy, and not insured against: Burkhard v. Ins. Co., 102 Pa. 262; Traders’ & Travelers’ Accident Co. v. Wagley, 74 Fed. Repr. 457; Keene v. Acc. Assn., 164 Mass. 170 (41 N. E. Repr. 203); DeLoy v. Ins. Co., 171 Pa. 1; P. & R. R. R. Co. v. Hummell, 44 Pa. 375.
    As appears -from the uncontradicted testimony, from the place where the insured was about to descend the embankment, prior to going upon the tracks, he had an unobstructed view of the train which struck him, and had he looked and listened must have seen and heard it. Hence we must conclude that when he was at the top of the bank, at the side of the public road, the train was in full view, and yet he neither stopped nor looked nor listened but went forward negligently into a position of obvious danger: Marland v. R. R. Co., 123 Pa. 487; Myers v. B. & O. R. R. Co., 150 Pa. 386; Tuttle v. Ins. Co., 134 Mass. 175; Cornish v. Ins. Co., L. R. 23 Q. B. Div. 453.
    It is argued by the counsel for appellant, that where a case depends on oral testimony, it must be submitted to the jury, even if uncontradicted, citing Lehigh Coal & Nav. Co. v. Evans, 176 Pa. 28. An examination of that case discloses that the only testimony submitted to the jury there was that of the plaintiff, and the jury evidently did not believe the same as they found a verdict for the defendant, and all that is decided there is that the jury are the judges of the credibility of the witnesses. It is consistent with and recognizes the rule to direct a verdict for the defendant where the plaintiff’s evidence if believed is insufficient to sustain his claim.
    January 2, 1912:
   Per Curiam,

The judgment is affirmed on the opinion of Judge Ford.


author: Mr. Justice Stewart,

text:
    Rafferty, Appellant, v. National Mining Company.

      Negligence — Mines and mining — Master and servant — Mine foreman —Act of June 10,1907, P. L. 588.

    1. The employers’ ¿ability Act of June 10, 1907, P. L. 523, does not effect any change in the law as it stood before the passage of the act with respect to liability for injuries received by employees in coal mines where the mines are out of the control of the owners and in charge of a certified mine foreman.
    2. For any failure of a mine foreman to discharge the duties imposed by the mining Act of May 15, 1893, P. L. 52, the mine owner cannot be held liable, inasmuch as the state makes the mine foreman its representative and vests in him the determination of all questions relating to the security of the mines with power to compel compliance with his directions.
    3. If a mine foreman negligently fails to make a proper clearance between the railroad tracks in a coal mine and the wall of the mine, and a workman in the mine is injured or killed thereby, the owner of the mine is not liable in damages for the injuries sustained.
    Argued Oct. 18, 1911.
    Appeal, No. 85, Oct. T., 1911, by plaintiff, from order of C. P. No. 4, Allegheny Co., Second Term, 1908, No. 946, refusing to take off nonsuit in case of Mary Rafferty v. National Mining Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s son. Before Cohen, J.
    At the trial it appeared that the deceased was engaged as a mule driver in the defendant’s mine. While no person saw the accident the evidence indicated that the deceased was caught in a space between the tracks and the mine wall at a point where no sufficient clearance had been made as provided by the act of May 15, 1893. Other facts are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Frank Ewing, with him George M. Harton, for appellant.
    — The company is liable even though there was negligence under the bituminous mining law: Burns v. Vesta Coal Co., 223 Pa. 473.
    It is not necessary in the case of circumstantial evidence that all other theories must have been excluded in arriving at a conclusion as to the facts. In other words, it is not necessary to exclude all other possible manners in which the deceased could have been killed other than by being crushed between the rib of the heading and the car. It is sufficient if the circumstances pointed to this being the probable manner of his death: Penna. Co. v. Watson, 81* Pa. 293; Henderson v. R. R. Co., 144 Pa. 461; Bigley v. Williams, 80 Pa. 107.

      George E. Shaw, of Reed. Smith, Shaw & Beal, for appellee.
    — The courts of Pennsylvania have repeatedly held that for any failure to discharge the duties imposed by this act upon the mine foreman, the owner is not liable; that the mine foreman is not a vice principal but is a fellow servant of the workman: Durkin v. Kingston Coal Co., 171 Pa. 193; Lineoski v. Susquehanna Coal Co., 157 Pa. 153; Waddell v. Simoson, 112 Pa. 567; Hall v. Simpson, 203 Pa. 146; Golden v. Mt. Jessup Coal Co., 225 Pa. 164; Dempsey v. Buck Run Coal Co., 227 Pa. 571.
    Counsel for appellant further contend that the mining act of 1893 is not applicable to cases of this nature since the passage of the employers’ liability act of June 10, 1907. In this they are mistaken: D’Jorko v. Berwind-White Coal Mining Co., 231 Pa. 164.
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

We need not here repeat what was said in the recent case of D’Jorko v. Berwind-White Coal Mining Co., 231 Pa. 164. It is enough to say that it was there distinctly held that the employers’ liability Act of June 10, 1907, P. L. 523, does not effect any change in the law as it stood before the passage of the act with respect to liability for injuries received by employees in coal mines, where the mines are out of the control of the owners and in charge of a certified mine foreman. There can be no question as to what that law was and is. It was announced in Durkin v. Kingston Coal Co., 171 Pa. 193, and has been repeated in a number of cases since, the most recent being D’Jorko v. Berwind-White Coal Mining Co., supra. These cases alike hold that for any failure of the mine foreman to discharge the duties imposed by the mining Act of May 15, 1893, P. L. 52, the mine owner cannot be held liable, inasmuch as the state makes the mine foreman its representative, and vests in him the determination of all questions relating to the security of the mines, with power to compel compliance with his directions. While no one saw the immediate happening of the occurrence which is made the basis of this action, and different explanations of the occurrence have been attempted, we think the testimony warrants but one conclusion with respect to this feature of the case. That the unfortunate man met his death by being crushed between the car he was driving and the wall of the mine, is, we think, the only reasonable explanation. That the accident occurred in the immediate locality where he was found, is too clear for dispute. This point was 100 feet beyond the place called the “parting” where he had been signaled to apply sprags or brakes to his car. He was there seen to alight from his car, on the right hand side, where the clearance between the tracks and the wall of the mine met legal requirements as to width. He was not seen thereafter until found lying upon the track and injured, 100 feet beyond the place he alighted. Between these two points the required clearance on the right hand side continued; so there is no difficulty in seeing how he reached the point where he was injured. But at that point the clearance on the right hand side terminated, and from there on the space between the tracks and the mine wall is but a few inches. There can be but one conclusion, — in pursuing his way in an unlighted mine along this clearance he went too far and was caught in the narrowing space. Would it have been a proper and reasonable precaution against accidents such as this to have prolonged the clearance to a point beyond? If so, the failure to do this was negligence. But whose? Rule 3 in art. XX, of the act of May 15, 1893, provides that the mine foreman shall see that the entrance at such places where road grades necessitate sprags or brakes to be applied or removed, shall have a clear level width of not less than two and one-half feet between the side of the car and the rib, to allow the driver to pass his trip safely and keep clear of the cars there. Clearly under this provision, the duty was upon the mine foreman to see that the clearance at the “parting,” as it is called, was adequate and not only in the width prescribed, but in its length as well, to allow the driver to pass his trip safely; and if there was failure in this regard, the responsibility must rest wholly upon the foreman. We are not to be understood as conceding that the clearance here was not adequate for the purposes intended; we are simply assuming so much for purposes of illustration. The case on its facts approaches so closely to Golden v. Mt. Jessup Coal Co., 225 Pa. 164, where the law was considered and applied, that further discussion of this feature of the case is unnecessary.

Again, negligence chargeable to defendant is asserted in the conduct of the assistant foreman who it is alleged ordered the trapper, that is, the boy whose duty it was to signal when the sprags were to be applied, to assist him in pushing cars at the “parting.” It is said that the trapper was so employed when the car driven by the man who was injured approached; and that the giving of the signal was in consequence delayed, with the result that insufficient time was allowed the latter to set the sprags before the narrow space was reached. With respect to this it is only necessary to say that a careful examination of the testimony shows that it is entirely without support. The nonsuit entered was a proper disposition of the case.

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


text:
    Hays’s Estate.

      Wills — Construction—•Life estate — Power to sell stocks — Trusts ancl trustees.

    Testator gave to his wife the residue of his estate for life, and authorized her to sell certain shares of stock specifically described, and to dispose of the proceeds thereof as she might desire. After the death of the wife, appraisers chosen by his two daughters were to divide all of his estate “which there shall then be in two equal parts,” and allot one share to each daughter, which shares the daughters were to hold for life, subject, however, to coverture and spendthrift trusts, with power of appointment to their children, with remainder over in case of death without children to the survivor, for life, and in case of death of the survivor without children to the persons entitled under the intestate laws. Testator further provided that after his widow’s death either of the daughters might exercise the same power of sale as given to the widow “as to any of said property left to her share; and may in the same manner receive and dispose of the proceeds thereof.” The widow died without having sold the shares of stock. No division of the estate was made or demanded between the two daughters, and one .of the daughters died after the mother’s death without having exercised a power of sale. Held, that the executor of the deceased daughter took no title or interest in the shares of stock, inasmuch as the deceased daughter had no interest in them, but only in their proceeds, if she had chosen to exercise her option to sell.
    Argued Oct. 18, 1911.
    Appeal, No. 86, Oct. T., 1911, by Andrew J. Kelly, Jr., et al., Executors of the Estate of Annie H. Byers, from decree of O. C. Allegheny Co., March T., 1910, No. 180, dismissing bill of review in Estate of Richard Hays, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill for review of decree of distribution.
    Over, J., filed the following opinion:
    This is a bill of review filed by the executors of the will of Annie H. Byers, deceased, who died March 29, 1910, without issue, for a review of the decree of distribution made March 30, 1910, in the estate of Richard Hays, deceased, who died October 2, 1877, leaving to survive him a widow and two daughters, Jennie W., who now survives, and Annie H., the latter’s executors being the petitioners here. In that decree 444 shares of the Pittsburg & Lake Erie Angeline Iron Company and 829 shares of stock in the Iron Mountain Mining Company were distributed to the Fidelity Title & Trust Company, which had been appointed in the widow’s lifetime trustée to hold the estate. The petition alleges that one-half of this stock should have been distributed to Mrs. Byers’ executors, and prays that the decree be amended by so distributing them. In the will of Richard Hays, he gave to his wife, who survived him, and who died December 30, 1909, a life interest in his estate with power to sell and dispose of the proceeds of a specified portion of it, including these stocks, and in the eighth paragraph provided as follows:
    “VIII. I do hereby fully authorize and empower my wife Margaret to sell, in fee simple, at public or private sale, in such manner, at such time or times, and on such terms as she shall think proper the following portions of my property, real and personal:
    “All my real estate situate in the 22d Ward of the City of Pittsburg, in the State of Pennsylvania, being the undivided one-half of about 51.52 acres.
    “All my real estate situate in the Township of Forward, in the County of Allegheny and State of Pennsylvania.
    “All my real estate situate in the Counties of Hancock, Hamilton and Wright, in the State of Iowa.
    “All my real estate situate in Osage, in the County of Mitchell, in the State of Iowa.
    “All my real estate situate in the County of Marathon, in the State of Wisconsin.
    “400 shares of stock in the Pittsburg and Lake Erie Angeline Iron Company, of the State of Michigan.
    “829 shares of stock in the Iron Mountain Mining Company, of the State of Michigan.
    “My wife shall receive the proceeds and purchase money thereof, and shall dispose of the same in such manner as she shall see proper, I hereby giving her the absolute right of disposal over the same or any part thereof which she may receive. This power of sale shall not survive my wife except that should she fail to exercise it as to the whole or any portion of said property specified, then and in that case, after her death, either of my said daughters may exercise the same as to any of said property left to her share, and may in the same manner receive and dispose of the proceeds thereof.”
    In the third paragraph he directed that upon the death of his widow, appraisers chosen by his two daughters, Jennie W. and Annie M., should divide all his estate “which there shall then be in two equal parts,” and allot one share to each, gave them a fife estate therein, subject, however, to both coverture and spendthrift trusts, with power of appointment to their children, with remainder over in case of death without children to the survivor, for life, and in case of her death without children then to pass under the intestate laws.
    The widow died without having exercised the power of sale as to these stocks. No demand was ever made by either of the daughters for a division of the estate. No allotment was made to them. Mrs. Byers died without exercising her power of sale, and the stocks were in the possession, at her death, of the trustee. They were part of testator’s estate which he had directed at his wife’s death should be divided into two equal parts and one allotted to each of his two daughters, and by the fourth clause of the will they only had a life estate in the parts to be allotted, subject to both coverture and spendthrift trusts. Each of them, however, had the option to take such of the stocks as should be allotted to them out of the trust by exercising the power of sale given to them in the eighth clause. It was necessary that an allotment should be made before the power could be exercised, and until made their interests in the stocks were joint, and neither of them could exercise the power until the interests were severed, so that Mrs. Byers could not in her lifetime have exercised the power of sale. There is no gift of these stocks to the daughters. They only have a power of sale which when exercised vested the proceeds of the sale in them. As to the widow, that power was to be exercised by her in her lifetime, and it seems it was the testator’s intention to so hmit it as to his daughters. He says, “after her death, either of my said daughters may exercise the same as to any of the property allotted to her share, and may in the same manner receive and dispose of the proceeds thereof.” The widow could only sell and receive the proceeds during her lifetime, and as the word “manner” is one of large signification, Wells v. Bain, 75 Pa. 39, it seems the testator intended that if his daughters did not exercise the power of sale in their lifetime, that the stock should remain in and be part of the trust estate.
    Our conclusion then is, that as none of these stocks were allotted to Mrs. Byers and she did not exercise her power of sale, that title to no part of them vested in her at her death, and the petition is therefore dismissed.

      Error assigned was decree dismissing the bill.

      John S. Ferguson, with him A. M. Imbrie, for appellants.
    — Taking the whole will together, it would appear that the testator had in mind that his widow should be the first and chief object of his bounty and have the entire benefit of his estate during her natural life with the absolute power of disposal of that portion which is set forth in the eighth paragraph of the will and in case any part of that was not disposed of, then his two daughters should have the right to sell and convert to their own use what ■remained, and the terms of the will are so broad with reference to the daughters that it vested in .them an absolute estate: Nieman’s Est., 229 Pa. 41; Hoxie v. Chamberlain, 228 Pa. 31.

      D. T. Watson, with him Patterson, Sterrett & Acheson and Dalzell, Fisher & Hawkins, for appellees. —
    The daughters had no absolute title to the mining stocks: Hoxie v. Chamberlain, 228 Pa. 31; Girard Life Ins. & Trust Co. v. Chambers, 46 Pa. 485; Gross v. Strominger, 178 Pa. 64.
    The right of Mrs. Byers was personal and died with her: Crozier’s App., 90 Pa. 384; Anderson’s Estate, 185 Pa. 174; Davies v. Murbach, 17 Pa. Superior Ct. 207; Kerns’ App., 120 Pa. 523; Geist’s Est., 193 Pa. 398; Youghiogheny River Coal Co. v. Pierce, 153 Pa. 74; La Bar’s Est., 181 Pa. 1; Lejee’s Est., 181 Pa. 416; Tyson’s Est., 191 Pa. 218; Dennison v. Nigh, 2 Watts, 90; Hartman v. Dowdel, 1 Rawle, 279.
    January 2, 1912:
   Per Curiam,

The decree of the orphans’ court is affirmed on the opinion of Judge Ovee.


text:
    Fleming v. Philadelphia Company, Appellant.

      Negligence — Parties defendant — Gas companies.

    On an appeal from a verdict and judgment against a gas company for personal injuries sustained as the result of an explosion of gas, the record disclosed that another company was in fact the owner of the pipe where the gas exploded. There was evidence, however, that the two companies were intimately associated in their management, and it appeared that the employees of the company sued repaired the break and that the district in which the leak occurred was in charge of the company sued. Six judges sat at the hearing of the appeal, and, the court being equally divided in opinion, judgment was affirmed.
    Argued Oct. 18, 1911.
    Appeal, No. 87, Oct. T., 1911, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1906, No. 403, on verdict for plaintiff in case of James Fleming v. Philadelphia Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Trespass to recover damages for personal injuries. See Dialesantro v. Philadelphia Co., 47 Pa. Superior Ct. 339.
    Appellant’s counsel in their argument made the following statement:
    A young Italian named Dialesantro, who was employed by the appellee, claimed that he was injured at the same time as the appellee. The two suits came up for trial at nearly the same time* In the case at bar the jury disagreed. In Dialesantro’s case, there was a verdict of $1,200 upon which judgment was subsequently entered by the common pleas for reasons stated in an opinion then filed. Fleming’s case then came up for its second trial, which resulted in a verdict for $5,000. Upon this verdict judgment was entered without the filing of any opinion by the common pleas. Subsequently the Dialesantro case was appealed by us to the Superior Court, where the judgment was reversed with a venire facias de novo upon a point not involved in the present case. Upon the main question in this case, the decision of the Superior Court is against us. As a result of this combination of circumstances, we have the opinions of the common pleas court and of the Superior Court upon exactly the same set of facts, although neither of these opinions was rendered in the case at bar. Both of these opinions are adjudications directly against our position in this argument. We prosecute this appeal, however, with the sincere conviction that both of them are in error.
    The opinions referred to were as follows:
    Macfarlane, J.: The Philadelphia Company owns $4,000,000 of common stock of the Consolidated Company. The $2,000,000 of preferred stock are owned by other persons, i. e., the Philadelphia is the controlling stockholder. Two directors are common to both companies. The executive officers, president, vice president, secretary, treasurer and auditor are the same. The general managers are not the same. The city superintendent is the same. The Consolidated manufactures and sells artificial gas only. The Philadelphia Company does not operate the Consolidated’s manufacturing plant. Its business is in natural gas. The leak was in the Consolidated Company’s gas line of which the Philadelphia Company had charge along with its own and the Equitable Company’s lines in the same street. Out of that situation arises the liability, if there is liability.
    The statement filed is that the Philadelphia Company owned and operated. In reality it did not own the fine. It owned the majority of the stock of the company which did own the line, but it did not own it any more than the preferred stockholders owned it. A stockholder is not an owner. If it “operated” the line we think the allegation of ownership is surplusage or at least not fatal variance.
    The business of the two companies was so interwoven that a plaintiff might easily be misled and, while one company cannot be held for another’s negligence on that ground, on the other hand, if it sees fit to put itself in the position of doing work of the other company, mere bookkeeping arrangements will not relieve it.
    The city superintendent of the Philadelphia Company was also superintendent for the Consolidated and had charge of both lines. He received his pay by check of the Philadelphia. The materials for manufacturing the artificial gas are purchased by the Consolidated and its workmen do the work, but the bills to customers are sent out by the same persons, collections are made by the same, while the pipe lines are in charge of the Philadelphia; it inspects and it repairs and the rest is a matter of charging to the appropriate company. The inspecting and repairs are entirely work of the Philadelphia and its man came to Fleming’s cellar and inspected it for leaks and returned and inspected a few minutes before the explosion. The gas plant was managed by men paid by the Consolidated; its lines for distribution were managed by the Philadelphia. Strictly it did not own the lines but surely it operated them. The repair gang worked on three lines, its time was kept for work on each and the Philadelphia charged the other companies for their proper share.

      Counsel for the defendant contends that the defendant is charged with a non-feasance and not a misfeasance and that it owed no duty to the plaintiff and therefore is not negligent. The general principle is elementary. Negligence is a breach of a duty and the- common expression is a breach of duty owed to the plaintiff. The brief cites Erskine v. McNichol, 16 Phila. 151; Beck v. Kittanning Co., 35 P. L. J. 510; Stone v. Uniontown Co., 16 Pa. Co. Ct. 328; Curtin v. Somerset, 140 Pa. 70; Phillips v. Craft, 139 Pa. 125; Rehder v. Miller, 35 Pa. Superior Ct. 344, and general principles may be deducted from them that a contractor with a city for cleaning the streets is not liable to one injured by his failure to do so; a guest in a hotel has no claim against a contractor who failed to properly construct the hotel so that it collapsed; a landlord who undertakes to make repairs to a floor which he was not bound to do and does the work negligently is liable but not for failure to make repairs, etc., for the reason that there is no contract relation between the parties and no duty owed when the case is one of failure to do the act, that is, a nonfeasance. A man who is hired to do certain work and fails to do it is not liable to a stranger for his failure, while he would be if he begins to do it and does it negligently. A discussion of the whole subject is contained in Chief Justice Paxson’s opinion in Curtin v. Somerset, 140 Pa. 70.
    The negligence charged here was “in allowing said gas to escape and to permit leakage at different points along its line.” It let gas escape from the line, which was under its care, into Fleming’s cellar, where it exploded. The source of the gas was a leak in the main pipe line of which the defendant was in charge and full control. Mr. Carson testified that there was no contract by which the Philadelphia Company took possession of part or all of the Consolidated property, except as to the office building. It had charge of the line and charged the Consolidated for inspection and repairs. For convenience and perhaps economy the largest stockholder took charge of a part of the “plant.” It was not a mere independent contractor engaged to do a particular line of work. As was said in McNeil v. Crucible Co., 207 Pa. 493 (p. 496), “It was wholly immaterial how the Crucible Steel Company got into possession of the plant of the Park Steel Company, whether by a contract, by sufferance or by a trespass; the question is, was it in the control and management of the business of that company? Was it operating its machinery and boilers at the time the plaintiff was injured? ” The cases are not identical, but there, as here, there was a situation of actual control. It was held at the trial, and we think correctly, that having assumed the entire control and management of this line, inspecting, repairing and maintaining, it is liable. That it owed a duty to the plaintiff and, when it negligently allowed gas to escape into a cellar where it exploded, it must answer in damages and it is immaterial whether that negligence is misfeasance or non-feasance.
    Orlady, J.: The plaintiff sustained injuries, as the result of an explosion of gas which had leaked from a pipe in the street into a saloon in which he was working as a waiter. The principal element in his claim for damages was, that on account of the injuries thus received he developed tuberculosis, with which he was unquestionably suffering at the time of the trial. The accident occurred on December 16,1905, when the plaintiff was about seventeen years of age. Some six months after the accident he returned to his home in Italy, and remained there until about a week before the trial, which began March 15, 1910. He was examined by Dr. Beatty about four months after the explosion, who testified that at that time the plaintiff complained of soreness about the chest, and some superficial wounds about the scalp were noticed; that he complained of general soreness all over; but no bones were broken, and there was no external evidence of any injuries to indicate an internal lesion.
    Dr. Staub was called as a witness for the plaintiff. He had examined him a few days before the trial, and testified that the plaintiff was very weak, very much debilitated; there was a loss of muscular tone; and that he had every symptom of pulmonary tuberculosis of the right lung, whether in the first or second stage it was impossible to state; that there were external evidences of there having been a fracture of the sixth, seventh and eighth ribs on the right side; that some of the symptoms indicated degeneration of the spinal cord, and primary symptoms of loco-motor ataxia, that he was suffering with night sweats; and had an increased pulse rate with a hectic flush. No evidence of the character of the sputum was given. After a protracted examination of this physician by counsel, in an effort to connect the present condition of the plaintiff with the accident which had happened more than four years before, he was finally asked: “Q. Is it possible for anybody, finding a tubercular patient in this condition, after an injury in the upper part of the right lung, where no direct violence had been applied at that place, is it possible for any doctor to say that it was or was not caused by this trauma or blow? Or, to put the question in another way, is it possible for anybody, no matter how skilled, to say that this boy would not have had the same tuberculosis if it had not been for the explosion? A. No, sir. Q. That is beyond human skill? A. Yes, sir.” The witness testified generally to the fact that trauma might be a predisposing cause which might tend to develop tuberculosis in a part affected by mechanical injuries or violence, as when the ribs are broken the violence is not only applied to that part of the chest wall, but the whole side participates in it, by concussion, especially in an accident like the one described; a man falling on the floor, his whole side would be bruised when three ribs were broken, and that the part of the body most easily invaded by the tubercular bacilli is the upper right lobe of the lung. There is not a scintilla of evidence to connect the plaintiff’s condition at the time of the trial with the injuries received four years previously, as a proximate cause. The learned trial judge felt it to be his duty to submit the case, weak as it was, to the jury, and in speaking of Dr. Staub, he said, “The suggestion made here by Dr. Staub, as I understand it, is, that this man was predisposed to it. That is an opinion. It is the opinion brought here of a single physician, who does not claim to be a specialist or a special student of tuberculosis. It is for you to consider from your observation of him, the way he gave his testimony, and what he said, as to the weight you will give it.”
    Under the testimony, the second point, which was refused by the court, should have been affirmed. It is as follows: “Under all the pleadings and evidence in this case, the plaintiff is not entitled to recover any damages for the pulmonary tuberculosis from which he is said to be suffering, because there is no evidence that such tuberculosis is the result of the injuries alleged to have been received by him in the gas explosion.”
    On the other phase of the case, we feel that the court committed no error in submitting that question to the jury, the contention being that the Consolidated Gas Company should have been sued and not this defendant. The two companies were so intimately associated in their management that it is quite difficult to decide where the authority of one ends and the other begins in relation to the control, management, use and repair of the gas-pipe lines. Under the facts of this case we are not concerned about the bookkeeping and financial complications between the different corporations. Notice of the leak in the gas main was given to an officer of the Philadelphia Company, who responded to that notice by sending one of their employees to repair it, and the jury could well find that the Philadelphia Company had entire physical control of these lines by maintaining, inspecting and repairing them when necessary. The district in which the leak occurred was in charge of the district foreman of the Philadelphia Company. He said he was an employee of the Philadelphia Company, and his company paid for the repairs; that the employees of that company did all the work in connection with the Consolidated Gas Company, and that they were known as the employees of the Philadelphia Company. The argument of the learned trial judge in refusing to enter judgment in favor of the defendant non obstante veredicto, is convincing and we feel that that phase of the case was rightly decided. To the authorities cited may be added: Holbrook, Cabot & Rollins Corporation v. Perkins, 147 Fed. Repr. 166; United States v. Milwaukee Refrigerator Transit Co., 142 Fed. Repr. 247; Gas Co. v. John Myers, 168 Ill. 139; Rahenkamp v. Traction Co., 14 Pa. Superior Ct. 635; 29 Cyc. 487.
    For the reasons above given, the judgment is reversed and a venire facias de novo awarded.
    Verdict and judgment for plaintiff for $5,000. Defendant appealed.

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

      David A. Reed, of Reed, Smith, Shaw & Beal, for appellant.

      Thomas M. Marshall, Jr., with him Thomas M. Marshall, for appellee.
    January 2, 1912:
   Per Curiam,

The members of the court who heard this case being evenly divided on the questions raised by the appeal, it is dismissed and the judgment is affirmed.


text:
    Thompson’s Estate.

      Will — Construction—Legacy—Absolute gift.

    1. Testator provided in his will “Two policies” of life insurance “made out in the name of my daughter, I bequeath to her the proceeds from same to be placed at interest for her use and the use of her foster mother M. I also want my administrator to give of the first moneys in his hands $300 to said M. so she and my daughter may have the means to live in until the insurance is paid and interest come from same. All the balance of estate, after debts are paid, to go to my wife, to do with it as she pleases.” After the date of the will the insured’s estate in some manner was substituted as a beneficiary in the policies. Held, (1) that the word “proceeds” had no other signification than to distinguish between the policies and what would be realized thereon in connection with the matter of investment; (2) that the daughter took an absolute estate in the proceeds of the insurance subject to a life interest in one-half thereof in M.
    2. A bequest of the interest or produce of a fund without limitation as to the extent of its duration is a bequest of the fund itself.
    Argued Oct. 18, 1911.
    Appeal, No. 89, Oct. T., 1911, by the Commonwealth Trust Company, Guardian ad litem for Helen Thompson, from decree of O. C. Allegheny Co., April T., 1910, No. 63, dismissing petition for review in Estate of William A. Thompson, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition for review.
    The facts are stated in the opinion of the Supreme Court.
    Miller, J., dismissed the petition, filing the following opinion:
    The direction is that the proceeds of the insurance fund be placed at interest, for the use of- the daughter, Helen, and for the foster mother, Mrs. Brown; the principal sum is not given; the devise of $300 to Mrs. Brown and Helen was exclusive of the insurance money; it was to tide these two over until interest began on the latter.

      The clear language and the manifest intention was to give these two the income only on this fund; the principal, the residue, “all the balance” went to his wife; this is not the case of a gift of income only; the corpus itself is disposed of in the residuary clause; the widow’s election to take against the will does not constitute the principal thus remaining an absolute gift in those who are expressly limited to the income therefrom.
    Who may be ultimately entitled to the principal need not now be determined; the purpose of the will will be carried out by the trustee in the payment of the income to the beneficiaries and the survivors thereof. When this trust terminates will be time to determine the ultimate disposition of the principal.

      Error assigned among others was decree dismissing the petition.

      Harvey A. Miller, for appellant.
    — The testator never intended by the residuary clause that his widow should have the corpus of this fund after the child had received the income on it for life. If this fund is not covered by the residuary clause then the gift to Helen Thompson, whether the language is strong enough to pass the corpus or not, is a gift of the income without limitation as to continuance and passes the fund itself: Garret v. Rex, 6 Watts, 14; Bruch’s Est., 185 Pa. 194; Siegwarth’s Est., 33 Pa. Superior Ct. 622.

      Verner L. Barbor, for appellee.
    — A bequest of interest or income will not carry an absolute estate in the principal where the plain intent appears to sever such interest or income from its source: Ritter’s Est., Shissler’s App., 148 Pa. 577; Bentley v. Kauffman, 86 Pa. 99.
    January 2, 1912:
   Opinion by

Mr. Justice Stewart,

The will over which this dispute arises reads as follows: “Being sound in mind and body I do hereby declare this my last will and testament. Two policies of the Mutual Life Insurance Co. of N. Y. viz. No. 1302230 and No. 1308602 each for Five thousand dollars ($5,000) made out in the name of Helen Thompson, my daughter, I bequeath to her the proceeds from same to be placed at interest for her use and the use of her Foster Mother, Mrs. Marie Brown, in whose care she has been since her birth. I also want my administrator to give of the first moneys in his hands Three hundred dollars ($300) to said Mrs. Marie Brown so she and my daughter may have the means to live in until the insurance is paid and interest come from same. All the balance of estate, after debts are paid, to go to my wife, Mary E. Thompson, to do with it as she pleases. (Signed) W. A. Thompson. January 22, 1907.”

The dispute involves nothing but the insurance disposed of in the will. In the original policy, Helen Thompson, an illegitimate daughter, on whose behalf this appeal is taken by her guardian ad litem, was sole beneficiary. By some proceeding, the nature of which is not disclosed, the policies were changed. It is averred and not denied that the insured’s estate was substituted as the beneficiary, and the amount of insurance by some means reduced, whether to meet certain exigencies of the insured we do not know. All we know is that instéad of $10,000 being recovered on the policies, the net amount realized therefrom and subsequently awarded was $5,970.74, equalling about the one-half the entire estate. The testator’s right of disposition with respect to this insurance remained, and it is simply a- question of what disposition be made of the fund. The view taken by the learned judge of the orphans’ court was that the will gave to the daughter Helen and her foster mother simply the income of the principal sum. This view was derived from the use of the word “proceeds” as it occurs in the text of the will, by interpreting it as though the testator in using the word had reference to the income to be derived from an investment thereafter to be made of the money realized on the policies, overlooking the fact that by the plain language of the will immediately preceding the use of the word “proceeds,” there is a bequest of the policies in express terms to the daughter. The policies were not the subject of investment, but what was realized therefrom would be. What this would amount to depended on the insured’s indebtedness on the policies when death happened. The word “proceeds” evidently we think had no other signification than to distinguish between the policies and what would be realized thereon in connection with the matter of investment. The word was appropriate for this purpose, and it is only in that connection that its appropriateness or meaning is apparent. The further direction that his administrator was to pay over to Mrs. Brown out of the other estate the sum of $300, so that “she and my daughter may have the means to live in until the insurance is paid, and interest comes from same,” is confirmatory of this view, especially so since it is only the balance of his estate after being reduced to the extent of this $300 that is given to his wife Mary E. Thompson. By balance of his estate testator evidently meant balance of that estate out of which he directed the $300 to be paid. It results from this view that notwithstanding the gift to Helen Thompson is the proceeds of the insurance policies, the bequest is an absolute one, since there is no limitation upon the extent of its duration. “A bequest of the interest or produce of a fund without limitation as to the extent of its duration, is a bequest of the fund itself:” Garret v. Rex, 6 Watts, 14. We can discover in the will no intention on the part of the testator to sever the produce from its source, and in the absence of such intention the rule just quoted applies. In distributing the estate the court awarded the net sum of $5,970.74 derived from the policies “to trustees to be appointed for Helen Thompson and Marie Brown, the income to be paid to them or the surviver of them, for life as per will.” Helen Thompson at the time of the distribution was a minor below the age of fourteen without guardian. Later the Commonwealth Trust Company was appointed her guardian and immediately thereafter- filed its petition asking for the modification of the decree so that the principal sum or corpus should be decreed absolutely to Helen Thompson, subject to a life interest in the one-half thereof to Mrs. Marie Brown. This petition was dismissed and the appeal is from that order. We are of the opinion that the gift to Helen Thompson, as we have said was absolute, subject to a life interest in the one-half thereof to Mrs. Marie Brown; and it is now ordered that the petition be reinstated, and that the matter be proceeded with to final decree in accordance with the views here expressed, the costs on this appeal to be paid out of the estate of William A. Thompson, deceased.


text:
    Echard Coal & Coke Company v. Mudge, Appellant.

      Contract — Breach—Set-off—Affidavit of defense.

    1. Where a contract for the sale of coke provides for deliveries in certain monthly instalments running for six months, and a suit is brought before the termination of the six months for deliveries made in the second, third and fourth months, an affidavit of defense is insufficient which avers -that, after the deliveries for which suit was brought, the plaintiff had notified defendant that it would make no further deliveries, and in fact made no further deliveries, and that although the defendant had not been damaged as yet by the breach of contract, yet if in the future it desired other deliveries and the price of coke should advance in the meantime, and the plaintiff refused to make deliveries, the defendant would be damaged to the extent of the difference between the contract price and the market price of coke at a time it might in the future order the coke.
    2. In such a case if the defendant considered the breach of the contract as final when the plaintiff gave notice that it would make no further deliveries, the damages by the breach were fixed at the date of the notice, and as defendant admitted that no damage had been suffered at the time the suit was bought, it could of necessity offset no loss. If, on the other hand, the defendant seeks to fix its damages as of the date that it demands shipment of the coke, then it must give to the plaintiff the opportunity to ship as of that date. If it seeks to keep the contract alive for the purpose of determining its damages as of the future date, then it must keep it alive for the purpose of permitting the plaintiff to fulfill its contract and ship coke as of that date, if it sees fit.
    Argued Oct. 18, 1911.
    Appeal, No. 103, Oct. T., 1911, by defendant, from order of C. P. No. 3, Allegheny Co., Feb. T., 1911, No. 246, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Echard Coal & Coke Company v. Edmund W. Mudge, doing business as Edmund W. Mudge & Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered.
    Rule for judgment for want of a sufficient affidavit of defense.
    Evans, J., filed the following opinion:
    The plaintiff brings suit to recover, inter alia, the value of 1,435.95 tons coke shipped during the month of August, 1910, at $1.80 a ton; 3,049.05 tons of coke shipped during the month of September at $1.80 a ton, and 155.8 tons of coke shipped during the month of October at $1.80 a ton. The coke was delivered on a contract which provided for the delivery of a certain amount, of coke during the months of July, August, September, October, November and December, 1910.
    The defendant alleges that in December, 1910, the-plaintiff notified the defendant that it would not deliver any more coke under that contract; and that the plaintiff has delivered no coke under that contract since. The defendant does not contend that it ordered coke under the contract which the plaintiff failed or refused to deliver. On the contrary it alleges that it has not ordered any coke since the shipment of November, 1910, but alleges that there was a breach of contract on the part of the plaintiff when it notified the defendant in December, 1910, that it would not deliver any more coke under the contract.
    The defendant alleges that by the terms of this contract it was not compelled to take coke as per the statement in the contract during the-months of July, August, September, October, November and December, but that the contract was subject to contingencies, among which was the depression of business which caused the furnaces to close, and that by reason of that depression in business the defendant has not needed the coke which was required to be delivered under this contract except so far as it has been delivered.
    The defendant alleges that up to the time of the filing of the affidavit of defense it had not been damaged by reason of the alleged breach of contract on the part of plaintiff, but that if in the future it desired the delivery of the coke specified in. the contract, and the plaintiff refused to deliver it as it had declared it would do in December of 1910, then if the price of coke had advanced in the meantime, the defendant would be damaged to the extent of the difference between the contract price and the market price of coke at the time it might order the coke.
    We are of opinion that this is not a good defense to the plaintiff’s statement of claim. If the defendant accepts the alleged declaration of the plaintiff in December that it would not deliver any coke as a breach of contract and considers that breach final, then the defendant’s damage for the breach is of that date, and defendant admits long after December, 1910, it had not up to that time suffered any damage. If, on the other hand, the defendant seeks to fix its damages as of the date that it demands shipment of the coke, then it must give to the plaintiff the opportunity to ship as of that date. Plaintiff may change its mind between December 7, 1910, and the uncertain time in the future which the defendant asserts to be its right to demand shipments of coke, and if the defendant seeks to keep the contract alive for the purpose of determining its damages as of the future date, then it must keep it alive for the purpose of permitting the plaintiff to fulfill its contract and ship coke as of that date if it sees fit.
    Under the contract the coke shipped was to be paid for in cash on some date from the twentieth to the twenty-fifth of the month following the date of shipment. The defendant admits that it received the coke as per the statement of claim of the plaintiff, that the price charged for it is correct, and that payment for the coke was not made as per the terms of the contract.
    We are of opinion that the alleged set-off of the defendant is not a defense to the plaintiff’s claim and that judgment should be entered for the plaintiff against the defendant for the price of the coke delivered during the months of August, September and October.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      S. Leo Ruslander, with him Weil & Thorp, for appellant.
    — This case is ruled by Newton Rubber Works v. Kahn, 186 Pa. 306.

      E. C. Higbee, of Sterling, Higbee & Matthews, with him Roger Knox, for appellee.
    — Even if there be a breach, the affidavit of defense does not show that défendant at the time of the breach sustained any damage: Arnold v. Blabon, 147 Pa. 372; Morris v. Supplee, 208 Pa. 253; Clyde Coal Co. v. R. R. Co., 226 Pa. 391; Pardee’s App., 100 Pa. 408.
    A valid set-off must be of a debt or demand due at the time of the commencement of.the action in which it is interposed: Hotchkiss & Co. v. Roehm, 181 Pa. 65; Roig v. Tim, 103 Pa. 115; Russ v. Sadler, 197 Pa. 51; Terriberry v. Broude, 173 Pa. 48; Pocono Spring Water Ice Co. v. American Ice Co., 214 Pa. 640; Newton Rubber Works v. Kahn, 186 Pa. 306.
    January 2, 1912:
   Per Curiam,

This judgment is affirmed on the opinion of the court below directing it to be entered for want of a sufficient affidavit of defense.