author: Mr. Justice Stewart,

text:
    Fidelity Title and Trust Company v. Illinois Life Insurance Company, Appellant.

      Insurance —■ Life insurance — Policy — Application — Evidence — Act of May 11, 1881, P. L. 20.
    In an action upon a policy of life insurance it appeared that on the face of the policy was the following language: “See copy of application inside, and if errors or omissions are found therein note the same, and return the same to the company for correction.” No application appeared upon the policy offered in evidence, and no explanation for its absence was given. The evidence tended to show that the application had been omitted from the policy by mistake. The statement of claim contained an express averment that the copy filed was a true copy, and that the insured had performed all the covenants of the instrument. The affidavit of defense admitted the issuing of the policy, but alleged fraudulent misrepresentation in procuring it. The affidavit did not deny that the policy was the entire contract. A supplemental affidavit of defense made by the same officer who swore to the original one, merely stated that the affiant did not know at the time the original affidavit was made that the copy of the application had not been filed with the copy of the policy. Held, (1) that the policy was properly admitted in evidence; (2) that the company could not show by it that the payment of the first premium had not been paid while the insured was in good health, in violation of a condition of the policy; (3) that the company could not show that a statement made by the insured in the application as to his health was false; (4) that neither the contents of the application, nor the application itself were admissible in evidence on the part of the defendant.
    In an action upon a policy of life insurance where the insurance company shows that a person of exactly the same name as the insured was rejected by another company, it must further show that such person was in fact the insured.

      Argued Oct. 27,1905.
    Appeals, Nos. 79 and 80, Oct. T., 1095, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1905, Nos. 387 and 388, on verdict for plaintiff in case of Fidelity Title and Trust Company, Guardian of George L. White, Robert G. White and Gladys L. White, minor children of William J. White, deceased, and Jennie E. White, v. Illinois Life Insurance Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Action of assumpsit on two policies of life insurance. Before Evans, J.
    At the trial plaintiff made the following offer:
    In the case at No. 387, February Term, 1903, counsel for plaintiffs offer in evidence the averments of the plaintiffs’ statement not denied by the affidavit of defense, to wit:
    That William J. White, deceased, took out a policy of insurance in the Illinois Life Insurance Company, on October 15, 1900, in the sum of $5,000; that the premiums on this policy were duly paid up to the time of said William J. White’s death, on November 6, 1902; that proofs of loss were duly made to the defendant company of said death and said policy has not been paid.
    Mr. Ferguson: The offer is objected to in so far as it relates to the policy, for the reason, first, that the policy produced does not contain a copy of the application attached to it, although the application is referred to upon the face of the policy as attached, and no explanation is proposed to be given as to why the application is absent.
    The Court: I do not understand the offer to include the policy. The offer is simply that the decedent took out a policy.
    Mr. Dalzell: That is right. We are simply offering in evidence so much of the affidavit of claim as is not specifically denied by the affidavit of defense.
    The Court: You are not offering the policy?
    Mr, Dalzell: No. There is nothing in either the affidavit of defense or the supplemental affidavit of defense that raises the question as to the application.
    Mr. Ferguson: If the offer as made is as your honor understands it, of course there is no objection.

      Mr. Young: I will amend that offer by offering in addition thereto the copy of the policy which is attached to the statement of claim in this case, marked exhibit “A,” the same purporting to bo a correct copy of the policy which was issued to William J. White, the decedent.
    Mr. Ferguson: The defendant objects because on the face of the policy the following language appears :
    “ See copy of application inside and, if errors or omissions are found therein, note the same and return the same to the Illinois Life Insurance Company, Chicago, Illinois, for correction,” and no such application appears upon the paper offered, and no explanation for its absence is given.
    2. Because it is provided in the policy that the policy shall not take effect until the first premium has actually been paid in in cash during the lifetime and good health of the assured, and, therefore, the policy is not competent unless proof is given by the plaintiff that the decedent was in good health at the time.
    Objections overruled. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [2]
    Tn the case at No. 388, February Term, 1903, counsel for plaintiffs offer in evidence the averments of plaintiffs’ statement not denied by the affidavit of defense, to wit:
    The plaintiff, the Fidelity Title & Trust Company, a corporation of the state of Pennsylvania, which was duly appointed by the orphans’ court of Allegheny county at No. 122, November Term, 1902, guardian of Gladys L. White, minor child of William J. White, deceased, claims of the defendant, the Illinois Life Insurance Company, a corporation of the state of Illinois, the sum of 82,500 upon a policy of insurance, dated October 22,1900, with interest thereon from November 6,1902, justly due and payable to the plaintiff, of which claim the following is a statement:
    A policy of insurance, dated October 22, 1900, was duty executed and delivered by the defendant to the plaintiff’s decedent on or about October 22, 1900, in consideration of the sum of $>101.15 paid on said date by the plaintiff’s decedent to the defendant. The plaintiff attaches hereto and makes a part hereof, marked exhibit “A,” a true and correct copy of said policy of insurance. The plaintiff avers that the decedent lias always from the time of the making of the policy of insurance, a copy of which is hereto attached, marked exhibit “ A,” performed all things on his part to be fulfilled, according to the tenor and effect of said policy; that William J. White, the party insured for the benefit of the plaintiff herein, died November 6, 1902, in the city of Pittsburg, whilst the said policy was in force; and that the plaintiffs herein did promptly furnish unto the said defendant good and sufficient proof of the death of the said William J. White ; that, although heretofore so requested, defendant did not, and has not, paid unto the said plaintiff herein, or to any one for her, the sum of $2,500, or any part thereof, and said sum, together with lawful interest thereon is now due.
    Mr. Ferguson: Defendant’s counsel object, in so far as the offer of the policy is concerned, for the reasons, first, that policy contains indorsed on its face the following language:
    “ See copy of application inside, and if errors or omissions are found therein, note the same and return the policy to the Illinois Life Insurance Company, Chicago, Illinois, for correction.” That the paper produced does not contain the application, nor is there any offer to account for its absence.
    Second, the policy on its face provides that it shall not take effect until the first premium shall have actually been paid. in cash during the lifetime and good health of assured, and no offer is made to prove the necessary fact of the good health of the assured at the time of the payment of the first premium.
    Objections overruled. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed.

    Counsel for defendant offer to show that William J. White, prior to the taking of the policies in suit, was an applicant to other insurance companies and was rejected on the ground that he was not an insurable risk; this for the purpose of showing the fact of rejection, and also showing the fact of the knowledge of the decedent.
    The Court: How is that material in this case ?
    Mr. Ferguson: Because it tends to show that he was not in good health at the time.
    Mr. Young: That offer is objected to for the reason it is incompetent, irrelevant and immaterial, and that it shows nothing in regard to the state of the decedent’s health at the time the policies in these suits were taken out. (Offer withdrawn.)
    Mr. Ferguson: These depositions are offered for the purpose of showing the rejection of William J. White as an applicant for life insurance in the Mutual Benefit Life Insurance Company of Newark, N. J., to be followed by evidence that at’ the time of the application to the defendant company for the insurance sued on, he represented that he never had been rejected as an applicant for life insurance.
    Mr. Young: This offer and the depositions are objected to for the reason that there is nothing in these depositions to identify the William J. White dealt with in the application as the one who took out the policies in question in this case, there being no effort made to identify them as the same by means of signatures or in any other way; and for the further reason that there is nothing to show that William J. White, the decedent, ever received any notice from this company of such rejection of that application, if they were the same, and for the further reason that there is nothing in the plaintiff’s case which shows that he made any such representations as the defendant has stated.
    The Court: Do you mean that there is no allegation in the affidavit of defense ?
    Mr. Dalzell: There is nothing on the face of the contract of insurance which is in evidence here which would invalidate it by reason of these representations which counsel now says were made to the defendant.
    Objection sustained. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [4]
    5. The court erred in overruling the following offer of defendant and sustaining the exception of plaintiffs thereto:
    In the ease of No. 388, February Term, 1903, counsel for defendant offer in evidence the deposition of the same parties as in the other case, to wit: Edward L. Dobbins and James C. Young, for the purpose of showing that William J. White had made an application for insurance on his life to the Mutual Benefit Life Insurance Company of Newark, N. J., and he had been rejected by that company, this to be followed by evidence that when the application for the policy in this case was made to the defendant company, he was verbally interrogated by the examiner of the company, among other things, as to whether or not he had ever been an applicant for life insurance in any other company, in which application he had been refused, and that he answered, “No,” or words to that effect; this for the purpose of showing that having undertaken to answer as to a matter material to the contract, as a preliminary thereto, he answered falsely, and for the purpose of avoiding the contract on account of such answer.
    Counsel for plaintiffs object to the foregoing offer for the reason that it is incompetent, irrelevant and immaterial, by reason of the fact that there is nothing in the depositions to connect William J. White, the decedent, whose heirs are the plaintiffs in this case, with the William J. White who made the application to the Mutual Benefit Life Insurance Company of Newark, N. J.; and for the further reason that there is nothing in these depositions to show that William J. White, the decedent, ever received any notice of the rejection of said application ; and for the further reason that the misrepresentation alleged to have been made by William J. White, the decedent, is not material to this case, under the contract.
    Objection sustained. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [5]
    Mr. Ferguson: I offer to show by the witness, Dr. Ingram, upon the stand that the time at which William J. White, the decedent, came before him as medical examiner of the company, he was interrogated by the witness verbally as to whether or not he had any disease of the kidneys, or had ever had any such disease, and that in response to the question the decedent verbally replied that he had not; this in connection with evidence already in the case that at the time he was suffering with a disease known as Bright’s disease, a serious disease, and one likely to prove fatal, and that White had knowledge of that fact; this for the purpose, first, of negativing any inference that might arise in the case that the risk upon the life of White was accepted by the insurance company with knowledge that he was suffering from any such disease; secondly, for the purpose of showing that the said White by false and fraudulent misrepresentation procured the issuing of the policies upon his life, sued on in these cases, this evidence being applicable to both cases on trial.

      To which offer counsel for the plaintiffs object as incompetent generally under the statute, and particularly because it appears from the affidavit of defense in this case, and from a reference to a copy of the policy which is in evidence, that the application to this company for insurance was made in writing and filed with the company.
    The Court: This contract is in writing, and the defendant not having put itself in position to prove a contemporaneous oral statement made at the time, the objection is sustained.
    Mr. Ferguson: Would your honor let me add what is necessary to complete that offer ? In connection with the foregoing offer I propose to prove by witness on the stand and others that he and the company relied upon the truth of the answers referred to in the question, and that the existence of such a disease was a material matter in relation to the contract.
    The Court: The objection is sustained. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [6]
    7. The court erred in overruling the following offer of the defendant and in sustaining the objections of the plaintiff thereto, viz.:
    “ Q. Now, doctor, did you have any conversation with him as to whether or not he had ever withdrawn an application for insurance upon his life in any other companies than yours, or whether he had ever made application for insurance upon his life to any other company, which had declined or refused to issue him a policy ? ”
    Objected to as incompetent. Objection sustained. To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [7]
    Mr. Ferguson: I now propose in view of the fact that the plaintiff has been permitted to interrogate beyond the direct examination of this witness, as to the portion of the examination undergone by W. J. White, to offer in evidence exhibit No. 1, and then call witnesses to prove the falsity of the various answers referred to in the affidavits of defense, and already referred to in offers of evidence in the ease.
    Objected to as incompetent.
    The Court: We certainly would not admit any such offer as that, because, as the court understands its rulings, the witness has not been interrogated on cross-examination beyond direct examination. The objection is sustained.
    To which ruling counsel for defendant request an exception. Exception allowed and bill sealed. [8]
    Verdict and judgment for plaintiff for f5,670. Defendant appealed.

      Errors assigned were (1) refusal of binding’ instructions; (2-8) rulings on evidence, quoting the bill of exceptions.

      J. S. Ferguson, with him E. G. Ferguson and Henry W. Price, for appellant.
    The policies sued on in these cases when presented at the trial did not appear to have attached to them copies of the applications, but they did have printed on each of them on the front page in plain type this significant sentence : “ See copy of application inside, and if errors or omissions are found therein, note the same and return the policy to ‘ Illinois Life Insurance Company, Chicago, Ill.,’ for correction.”
    These policies were delivered to White and during his entire lifetime he was the proper custodian of them, because up to the last moment of his life he might have withdrawn the benefit of the policies from his wife and children and might have substituted his estate or any other person: Brigham v. Home Life Ins. Co., 131 Mass. 319; New Era Life Ass’n. v. Musser, 120 Pa. 384; Lenox v. Ins. Co., 165 Pa. 575; Morris v. Life Assur. Co., 183 Pa. 563.
    Concealment, which is only the effect of accident, negligence, inadvertenee or mistake, will, if material, be equally fatal to a contract of insurance, as if it were intentional or fraudulent: Miller v. Western Farmers’ Mut. Ins. Co., 1 Handy (Ohio), 208 ; Vose v. Life & Health Ins. Co., 60 Mass. 42 ; Smith v. Etna Life Ins. Co., 49 N. Y. 211.
    Where the policy provides that it shall not take effect unless the first premium is actually paid in cash while the assured is in good health it is held “ that in the absence of an estoppel the liability of the insurer depends upon the actual and not upon the mere apparent good health of the insured when the first premium was paid: ” Thompson v. Travelers Ins. Co., 11 North Dakota, 274, (91 N. W. Repr. 75); S. C. 34 Ins. Law Jour. 124; Austin v. Mut. Reserve Fund Life Assn., 182 Fed. Rep. 555; Metropolitan Life Ins. Co. v. Howie, 62 Ohio, 204 (56 N. E. Repr. 908) ; Cable v. U. S. Life Ins. Co., 111 Fed Repr. 19; Harnickell v. Ins. Co., 111 N. Y. 890 (18 N. E. Repr. 632) ; McClave v. Mut. Reserve Fund Life Assn., 55 N. J. L. 187 (26 Atl. Repr. 78); Langstaff v. Life Ins. Co., 69 N. J. L. 54 (54 Atl. Repr. 518) ; Wilcox v. Sovereign Camp, 76 Mo. App. 573; Reese v. Fidelity Mut. Life Assn., 111 Ga. 482 (36 S. E. Repr. 637).
    Where health of the insured has changed between date of application and delivery of the policy there is a duty to disclose the change: Equitable Life Assurance Society v. McElroy et al., 83 Fed. Repr. 681; Piedmont and Arlington Life Ins. Co. v. Ewing, 92 U. S. 377; Whitley v. Piedmont, etc., Life Ins. Co., 71 N. C. 480.

      William S. Dalzell, of Palzell, Scott & Gordon, with him Edwin P. Young, for appellee.
    We submit that the act of May 11, 1881, is positive in its terms and that no application of an insured having any bearing upon the contract of insurance shall be received in evidence in any controversy between the parties to or interested in the said policy unless attached to the policy: Keatley v. Travelers’ Ins. Co., 187 Pa. 197.
    January 2, 1906:
   Opinion by

Mr. Justice Stewart,

This was an action on a policy of insurance issued by the defendant company on the life of William J. White, brought by plaintiff as guardian of the minor children of the insured. The assignments of error relate to the admission, rejection and sufficiency of evidence. They include nothing beyond.

On the trial, the first offer on the part of the plaintiff, was so much of the statement filed in the case as was not denied in the affidavit of defense. This included the specific averments ; that the policy of life insurance in the sum of $5,000 had been issued by the Illinois Life Insurance Company, the defendant, October 15, 1900; that the premium on this policy had been paid up to November 6, 1902, the date of the death of the insured; that proofs of death were made to the company as required by the terms of the policy; and that the policy had not been paid.

The offer was subsequently enlarged so as to include the policy itself. The grounds of objection to this offer were: 1. That on the face of the policy the following language appears : “ See copy of application inside and if errors or omissions are found therein note the same and return the same to the Illinois Life Insurance Company, Chicago, Illinois, for correction,” and no such application appears upon the paper offered . and no explanation for its absence is given. 2. Because it is provided in the policy, that the policy shall not take effect until the first premium has actually been paid in cash, during the lifetime and good health of the insured, and therefore the policy is not competent unless proof is given by the plaintiff that the decedent was in good health at the time.

Although unimportant in this immediate connection, it may be well to state here, that it was at no time alleged that the application referred to had been fraudulently suppressed, or had in fact ever been issued. The fact seems to be that it was originally omitted from the policy by mistake.

With respect to the first objection — The policy of insurance was the basis of the action, and the statement contained an express averment that the copy filed was a true copy of it; and that the insured in his lifetime had performed the conditions and covenants stipulated in said instrument or contract of insurance. The affidavit of defense admitted the issuing of the policy and the contract of insurance as set out in the statute, but alleged, as matter of defense, that the insured had procured the policy to be issued by fraudulent misrepresentations. The affidavit contained no denial, either express or by implication, that the policy was the contract of insurance, and the entire contract. The supplemental affidavit, made by the same officer who made the original, merely averred that the affiant did not know, at the time the original affidavit was made, that the copy of the insured’s application was not filed with the copy of the policy. This left the policy as free from objection, as matter of evidence, as any other of the undenied averments of the statement.

The printed notice on the policy, directing attention to the copy of the application inside, did not affect in any way the admissibility of the policy in evidence; nor was the plaintiff bound at this stage of the case to explain the absence of the application. The court below was not called upon in this inquiry to decide what effect the notice on the face of the policy had upon the rights of the parties themselves, or whether, being there, it imposed any particular duty upon the assured. Nor are we now; the question being as to the admissibility of the policy in evidence. Inasmuch as it was admitted by the pleadings to be the contract of the parties, there is no rule of evidence by which it could have been excluded.

As to the second ground of contention — Even though, as contended, a payment by the insured of the first premium while in good health, was a condition precedent, and the contract of insurance dependant upon its fulfillment, the admission by defendant of the facts set out in the statement, that the insured had performed all things on his part to bo fulfilled, the policy, as a matter of evidence, stood clear of all such objection as that urged.

The fourth assignment relates to the rejection of evidence offered on behalf of the defendant. The offer was to show the rejection of William J. White as an applicant for life insurance in the Mutual Benefit Life Insurance Company, of Newark, N. J., to be followed by evidence that, at the time of the application to the defendant company, for the insurance sued for, he represented that he had never been rejected as an applicant for life insurance. Were there nothing more to justify the ruling of the court in rejecting this offer, the fact that it was not proposed to show the identity of the William J. White referred to with the insured in this case, would be quite sufficient. This was the answer made when the objection was stated, and the fact that no amendment of the offer in this regard was proposed, shows that the omission of this from the offer was not accidental. The evidence was properly rejected.

Defendant’s next offer was to show, by the medical examiner of the company, that when the insured was examined by him before the policy issued, he was interrogated orally as to whether or not he had any disease of the kidneys, or whether he had ever had any such disease, and that the insured replied orally that he had not. This offer was, in connection with the evidence already in, for the purpose of negativing any inference that might arise in the case, that the risk upon the life of the insured was accepted by the company with the knowledge that the insured was suffering with kidney disease; and also for the purpose of showing that the insured had procured the policy issued to him, by false and fraudulent misrepresentations as to his physical condition, such misrepresentations relating to a material fact relied on by the defendant.

This offer conflicts directly with the Act of May 11, 1881, P. L. 20, relating to life and fire insurance policies. It is there provided that the application shall not be considered a part of the policy or contract between the parties, unless a correct copy of such application be attached to the policy, and the application in this case was not attached. In the affidavit of defense it was admitted that a written application had been made, in which the very thing here proposed to be shown was inquired of, and written answers in response obtained from the insured. It is to make the act of no effect, to say that it excludes the paper being considered a part of the contract between the parties, but allows proof of what it contains for that very purpose; not only so, but it reverses the established order of proof that always regards the written document as the first and best evidence of the contract, and excludes all other until the writing be introduced, or its absence accounted for. There was no error in the rejection of the evidence.

What we have said applies equally well to the seventh and eighth specifications, which relate to the exclusion of evidence, the purpose of which was, in one case, to introduce the contents of the application paper, and in the other, the paper itself, or so much of it as is entitled “medical examiner’s report, ” containing questions and answers of the insured relating to his physical condition.

The case as tried presented a single issue of fact. One of the terms expressed in the policy was, that it was not to take effect until the first premium had actually been paid in cash during the lifetime and good health of the insured. It was admitted by the pleadings that all the premiums had been paid, but it was attempted to be shown, that when the first premium was paid, the insured was suffering from the malady that finally terminated his life. In this connection, to negative the inference that defendant had waived this condition in the policy, and for this purpose only, defendant was allowed to introduce the insured’s application, showing that he there had represented himself as free from such disease. Defendant’s case on this point, rested largely upon the testimony of Dr. As-dale, who was the physician of the insured. He testified that from the examination made by himself of the insured’s urine, shortly before the policy was issued, he was satisfied that the insured was the victim then of Bright’s disease, from which he died two years later; that this disease was progressive and incurable. The testimony of Dr. Ingram, the medical examiner of the defendant company, the only additional witness, was of little value, since it was not shown with that degree of certainty that the case required, that the urine he examined, and which he considered, showed sure indications of Bright’s disease, in the person who voided it, was the urine of the insured. Dr. Asdale had sent it to this witness by the hand of his son, and could not tell whether he himself had received this particular specimen from the insured or whether it was one of several specimens that had been given him by those in charge of his office, during his absence, and which was represented to him as having been left there by the insured for examination. It will be seen that defendant’s case upon this point, rested almost entirely upon the testimony of Dr. Asdale.

The case where an assault of this kind could be met by counter expert testimony, would be rare indeed; and it is not surprising that the plaintiff could only meet it by testimony going to the apparent health of the insured. A single witness was called on behalf of the plaintiff — the employer of the insured — who testified to close and intimate relations with the insured, over a long period of years, continuing until the date of his death. He testified that at the time inquired of, the insured’s health was good, and that he continued to attend to his duties at the college where he was employed, until a day or two before his death, stating clearly the opportunities he had of knowing the insured’s daily condition during all that period. This conflicting testimony was submitted to the jury in an impartial charge, which should have been entirely adequate, addressed to a jury of ordinary intelligence. The submission was a matter of course, and the finding of the jury in favor of the plaintiff was a conclusion that cannot now be disturbed.

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


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fay’s Estate.

      Specific performance — Sale of land — Parol agreement — Statute of frauds.

    The orphans’ eourt will decree the specific performance of a parol contract against the estate of a deceased vendee who purchased at a definite price, and on specified terms, a tract of land sufficiently described, and valuable as a stone quarry, paid part of the purchase money, entered thereon, and from time to time quarried stone, the value of which cannot be readily ascertained.
    Argued Oct. 27, 1905.
    Appeal, No. 115, Oct. T., 1905, by-Mary Fay, Executrix, from decree of O. O. Allegheny Co., Feb. T., 1905, No. 249, for specific performance in Estate of John Fay, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for specific performance of a parol agreement to convey real estate.
    Miller, J., filed an opinion which was in part as follows:
    On or about said 26th day of August 1901, John Fay, now deceased, he having died on October 21, 1908, entered into a parol agreement with Booth & Flinn, Limited, for the purchase of a property known as the Crescent street property, consisting of twenty-six lots for the sum or price of $3,250, payable as follows: $250, in cash and the balance with interest in equal monthly installments of $75.00, including the payment of taxes thereon. No time was fixed for the delivery of the deed.
    In pursuance of this agreement, Fay on the following day paid Booth & Flinn, Limited, $250, the agreed cash payment, and entered into immediate possession of the land which is underlaid with a vein of stone, and continuously mined, quarried and took away large quantities of building stone therefrom. Said occupancy and quarrying operation continuing until the time of his death.
    During this period Fay paid on account of the principal $773.41, on account of interest $257.37. He is charged with the taxes thereon paid by Booth & Flinn, Limited, amounting to $137.43, which charge under the contract, with the balance of the purchase money and the interest thereon, is due.

      The land was known and spoken of by Fay and the vendor as the Crescent street property. It fronted on that street, which at this place is now the Grant boulevard, a portion thereof having been acquired by the city of Pittsburg in the construction of said boulevard; it was so occupied and used at the time the contract was entered into. Booth & Flinn, Limited, did not at that time and do not now have any other land on that street, or in that vicinity.
    The land had a special value as a stone quarry, and as such has depreciated to the extent of a large amount of stone removed therefrom by Fay; the quantity of stone removed, and the market value thereof cannot now be readily ascertained, the property being left in a rough, caved-iu and excavated condition.
    Booth & Flinn, Limited, have not occupied or exercised any control over said lands since the date of the said contract, except the payment of taxes.
    The prerequisites of the relief asked for by the petitioners, in respect to the contract, the parties, the consideration, and the subject-matter have been established by full, satisfactory and indubitable proof. The Crescent street property consisting of twenty-six lots and being ail that the Booth & Flinn, Limited, had on that street, or in that vicinity, is a sufficient identification, when coupled with the fact that Fay went into possession and used the same until the time of his death. During that time he knew or was bound to know the dimensions of the property he purchased, and the extent, if any, to which a part of it had been used or taken for the Grant boulevard.
    To show the subject of the contract with reasonable certainty is sufficient: “ It is not necessarjr,” Burns v. Sutherland, 7 Pa. 108, “ that lines of separation should be actually run upon the ground, if from the agreement of the parties, and the distinct subsequent possession of the vendee, it is possible to ascertain the boundaries and quantity of the land sold, or ... . the proof must be such as to direct how the surveyor may run it off from the rest of the vendor’s land.” Mr. Justice Clark. in Anderson v. Brinser, 129 Pa. 376, says, “a designation by lot number is available.” Here, as in Henry v. Black, 210 Pa. 245, “ the ground properly appurtenant can be ascertained by measurement to a certainty.” For the purposes of this case the land as described in the petition clearly contains all the Crescent street property contracted for by Fay.
    By the Act of April 28,1899, P. L. 157, which is an enlargement and amendment of the former acts relating to specific performance of decedent’s contracts, this court is empowered to decree the specific performance of contracts according to the true intent and meaning thereof^ inter alia, “whenever any parol contract shall have been entered into by any person for the conveyance of real estate within this commonwealth, and the purchaser shall have died without fully executing such contract .... and such parol contract may have been so far executed by possession, by improvements, or by partial payments of the purchase money that it would be against equity to rescind the same.”
    This contract was executed in part both by the delivery and taking of possession, by partial payments and receipts of purchase money. From the date this agreement was entered into and the first payment made, and possession thereof taken by Fay in the active mining, quarrying and taking away of stone, and so continued until his death, Booth & Flinn, Limited, ceased to have any control over, or rights therein, except as to the receipt of the purchase money; they could not sell it, or otherwise dispose of it, or deliver possession thereof to anyone else, without incurring the penalty of a breach of contract.
    But to take this case out of the statute of frauds and perjuries, it is not enough that the essential of contract, parties, consideration, subject-matter and part performance be clearly and indubitably proven ; but it must be shown that it would be unjust to rescind the contract: Moore v. Small, 19 Pa. 461; and also that the party aggrieved could not be compensated in damages : Derr v. Ackerman, 182 Pa. 591.
    Unjust, however, to whom? Manifestly there can be no preference. The living vendors and the heirs of a deceased vendee are entitled to equal justice ; as between these two, Fay got all he contracted for; if he failed to pay the installments of consideration as agreed upon, his default was either assented to, or overlooked by the vendor; but the latter did all the contract called for, and in pursuance thereof, gave up possession and permitted the vendee to depreciate the value thereof to the extent of the value of the stone removed, which value the vendee received and converted to his own use. It would be unjust and inequitable to the vendor to rescind the contract, while its enforcement is not an injustice to the vendee’s legatees and heirs, as it gives them what their ancestor bargained for.
    The offer of the vendees to compensate the vendors in damages is not practical in the ascertainment thereof. Fay’s purpose in acquiring this land was to mine and quarry the stone taken therefrom; that was his business; but what quantity was taken, where it was delivered, and what price was received therefor is a matter of conjecture ; the evidences to ascertain the thickness and dimensions of the portion of the vein removed are not reasonably ascertainable, they would at best result in a mere guess.
    This is not the case of Miller v. Zufall, 113 Pa. 317. The turning point there was whether a contract in fact existed, Chief Justice Mercue speaking for the court saying, “ Great doubt exists as to there having been any specific and material contract between Stutzman and the defendant for the sale and purchase of land, or whether there was a mere permission to cut an uncertain quantity of timber therefrom, or negotiations in regard to some sale at a future time.” If tbe loss arising out of a breach of parol contract can be compensated in damages the ease ordinarily is not taken out of the statute of frauds and perjuries; but says Mr. Justice Steer ett in Jamison v. Dimock, 95 Pa. 52, “ While this may be true as to parol gifts of land .... it is not correct as applied to a case like the present which is claimed to be a parol sale for a money consideration fully paid according to the contract, possession taken and continuously held in pursuance thereof. There was no error, therefore, in refusing to hold that a parol contract of sale cannot be specifically enforced unless the vendee can show that he has made improvements for which he cannot be compensated in damages. There are undoubtedly cases in which the equities of vendees rest upon other equally available grounds.”
    The facts found and the conclusions of law reached indicate that specific performance of this contract should be enforced, and it will be so decreed.

      Error assigned was the decree of the court.

      Charles W. Jones, for appellant.

      Richard W. Martin, with him John 8. Weller, for appellee.
    January 2,1906 :
   Per Curiam,

Decree affirmed on the opinion of the court below.


text:
    Commonwealth v. Johnson, Appellant.

      Criminal law — Murder—Summoning jurors — Evidence.
    A conviction of murder will not be set aside because the sheriff in the notice summoning jurors failed to state that they were to serve in the court of Oyer and Terminer.
    In a murder trial facts which have been learned by competent witnesses are not to be excluded because the witnesses may have been put on the track of them by information coming incidentally or otherwise from the prisoner or his wife. The admission of such facts is not permitting the wife to testify against the prisoner, or compelling the latter to testify against himself.
    An admission not competent as a confession is admissible when its truth is proved by the revelation of the fact by search.

      Criminal law — Murder—Self-defense.
    Where a prisoner charged with murder, and the deceased, both had a right to be in the house where the killing occurred, the ordinary rules as to self-defense are alone applicable. Rights of a householder against a violent intruder have no relevancy.
    To justify killing in self-defense the prisoner must have reasonably believed that he had no other means of escape from death, pr great bodily harm.
    Argued Oct. 30, 1905.
    Appeal, No. 1, Oct. T., 1906, by defendant, from judg’ment of O. & T. Lawrence Co., March T., 1905, No. 1, on verdict of guilty of murder of tbe first degree in case of Commonwealth v. Frank Johnson.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Indictment for murder.
    Tbe opinion of tbe Supreme Court states tbe case.
    Verdict of guilty of murder of tbe first degree.

      Errors assigned appear by tbe opinion of the Supreme Court.

      A. W. Gardner, with, him J. Norman Martin, and Andrew Marquis, for appellant.

      Robert K. Aiken, with him Joseph ■ V. Cunningham, district attorney, for appellee.
    January 2, 1906:
   Per Curiam,

Not a single one of the twelve assignments of error has any merit at all, substantial or even technical, and it is to be regretted that counsel feel themselves at liberty to impede and delay the cause of justice on such trifling grounds.

In the first assignment the constitution of the trial court is attacked, not because the names of the jurors were not duly and regularly drawn for service nor because the proper jurors themselves did not appear and serve, but because the sheriff in the notice summoning them failed to state that they were to serve in the Oyer and Terminer. Even without the Act of March 31, 1860, P. L. 427, the objection would have been one that only a juror desiring to evade service, could be heard to make. And under that act the objection by the prisoner, if otherwise valid, was made too late.

The objections to the plan of the house because the draughtsman obtained some of his information from the prisoner’s wife, and to the testimony as to the cartridges because they were obtained from the prisoner’s trunk are of no force. Facts which have been learned by competent witnesses are not to be excluded because the witness may have been put on the track of them by information coming incidentally or otherwise from the prisoner or his wife. “ An admission not competent as a confession is admissible when its truth is proved by the revelation of the fact by search: ” Laros v. Commonwealth, 84 Pa. 200. The admission of such facts in evidence was not permitting his wife to testify against the prisoner or compelling him to testify against himself.

The remaining assignments that are worth noticing at all are founded on a misconception of the law of self-defense. The judge, in answering the points and in charging the jury, stated as an essential ingredient of justifiable killing in self-defense, that the prisoner must have reasonably believed that he had no other means of escape from death or great bodily harm. This was in the very language approved and affirmed in Com. v. Mitchka, 209 Pa. 274. The prisoner, it is true, had a right to be in the house where he was, but so had the deceased. The house was the property of the prisoner’s wife who was also the deceased’s mother, and both were members of her family. Neither had any right to eject the other, and when the struggle between them took place the ordinary rules as to self-defense were alone applicable. Eights of a householder against a violent intruder have no relevancy. The law was correctly laid down for the guidance of the jury and they have found the facts against the prisoner.

Judgment affirmed and record remitted for the purpose of execution in accordance with law.


text:
    Masseth, Appellant, v. Masseth.

      Wills — Devisavit vel non — Testamentary capacity — Undue influence — Evidence.

    On a petition for an issue devisavit vel non, it appeared that the decedent made a will distributing his estate equally among nephews and nieces. Subsequently he left his home, went to a sanitarium, was there operated upon, and died three weeks after the operation. On the day before his death he was asked whether he desired to make a will, he replied that he did, and a scrivener was sent for and prepared the paper in controversy. This paper was executed by the decedent the following evening, his physician and the scrivener being the subscribing witnesses. Decedent died the following day. A nephew was with the testator at the sanitarium continuously from the time of the surgical operation until his death. To this nephew and his sister, decedent conveyed certain real estate in New York a few days before his death. By the will in controversy he gave small money legacies to the children of a brother, and divided all the residue of his property among his other nephews and nieces. The children of the brother were the petitioners for the issue. The attending physician based his opinion of the incapacity of the decedent, not upon anything he saw with the eye of the physician, nor upon anything he observed in the conduct or conversation of the patient, but solely and exclusively on the fact that the disposition of the property directed in the paper executed did not conform with the wishes expressed by the deceased to him on several occasions, and as recently as the day before. The testimony of the scrivener showed great bodily weakness on the part of the decedent, but nothing to justify an opinion of mental weakness. The scrivener testified that the decedent verbally instructed him to distribute the balance of the estate among all the nephews and nieces in equal shares, at the same time giving him a written memorandum of instruction. The memorandum did not conform to the oral instructions. The scrivener observing this asked which he should follow. The decedent replied “you follow the writing.” The will, as made, followed the written memorandum. The entire paper was read over to the decedent by the physician. He was then asked if that was his will, and he replied that it was. His attention was particularly called to the money legacies to his brother’s children. There was no evidence to show that the nephew who was with the testator exercised any control over him, or influenced him in any way in the making of the will. Held, that an issue devisavit vel non was properly refused.
    Argued Oct. 19, 1905.
    Appeal, No. 186, Oct. T., 1905, by plaintiffs, from decree of O. C. Butler Co., June T., 1904, No. 88, refusing an issue devisavit vel non in case of Mary E. Masseth et al. v. Charles B. Masseth et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from register of wills. Before Galbreath, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree refusing the issue.

      W. H. Lusk, with him E. O. Gibbs and W. I). Brandon, for appellant.
    The issue should have been granted: Rees v. Stille, 88 Pa. 138; DeHaven’s App., 75 Pa. 337; Schwilke’s App., 100 Pa. 628; Robinson v. Robinson, 203 Pa. 400 ; Herster v. Herster, 116 Pa. 612; Palmer’s Est., 24 W. N. C. 159 ; Reichenbach v. Ruddach, 127 Pa. 564; Hamilton’s Estate, 4 Pa. Dist. Rep. 161; Rice’s Estate, 173 Pa. 298.

      Clarence Walker and John M. Murphy, with them John S. Keenan, for appellees,
    cited : Allison’s Est., 210 Pa. 22; Eckert v. Flowry, 43 Pa. 46 ; Shaver v. McCarthy, 110 Pa. 339; Herster v. Herster, 122 Pa. 239.
    January 2, 1906 :
   Opinion by

Mr. Justice Stewart,

The proceeding in the court below was an appeal from the decree of the register, admitting to probate a paper purporting to be the last will and testament of Ben Masseth. The only-question there, as here, was whether the evidence submitted disclosed a substantial dispute about a material fact.

Masseth was a resident of Butler county in this state. With a view to obtaining relief from a dangerous physical ailment, from which he was suffering, he went to a sanitarium in the state of Michigan, in May, 1893. He there submitted to an operation which proved of no avail, and his death followed in about three weeks thereafter. When it became apparent that his end was approaching, he was asked by his attending physician if he desired to make a will. He replied that he did, and .a scrivener was sent for, who prepared the paper in controversy. This paper was executed by Masseth the following evening, and attested by the physician, the scrivener and one other, who was an attendant at the sanitarium, but whose present whereabouts are unknown. Masseth died during the evening of the following day.

When the paper was offered for probate before the register of Butler county, a commission issued to take the testimony of these attesting witnesses in Michigan. This evidence established the execution of the writing; and being specifically interrogated as to the testamentary capacity of Masseth at the time of its execution, the physician and the scrivener, the only witnesses examined, the other having removed from the Mate, both testified that • he was of sound and disposing mind and memory. The probate of the will followed, as matter of course. This was followed by an appeal by these contestants, who are the children of decedent’s brother, Edward Masseth, in which they aver that Ben Masseth, at the time of the execution of the paper, was not of sound and disposing mind and understanding, and that the execution of the paper was procured through undue influence on the part of Charles Masseth and others. Evidence was taken, and upon full consideration the issue asked for was refused and the appeal dismissed.

The case is singular in this, that the only witness called by contestants to impeach the integrity of the alleged will are the attesting witnesses to the will itself. The testimony of one of these witnesses, Dr. Stewart, the attending physician in the last illness, calls for no consideration in this connection, since be rests bis conclusion that Masseth’s mind was confused when the paper was executed, and his doubts as to whether he was at times in condition to make a will, not upon anything he saw with the eye of the physician, nor upon anything he observed in the conduct or conversation of the patient, but solely and exclusively on the fact that the disposition of the property directed in the paper executed, did not conform with the wishes expressed by Masseth to this witness on several occasions, and as recently as the day before. Apart from this circumstance, the witness saw nothing to indicate that he was not in condition to make a will. His testimony may be dismissed without comment.

The testimony of the scrivener, McCoy, was evasive and inconclusive. He had never seen Masseth except in connection with the making of the will, once when he received instruction as to how it was to be drawn, and again when it was executed. He testified to his weakened physical condition on both occasions, but not to a single act or speech from which an inference of mental weakness could be drawn. He said he had grave doubts whether he understood what he was doing; that sometimes he thought he did, at others, that he did not. When told what was implied in mental capacity, and asked whether he had at that particular time sufficient capacity to make a will, his reply was, “ I wouldn’t like to answer that question yes or no. If I may be allowed I would answer it that the man was very poorly qualified to do that.”

If both of these witnesses, the physician and the scrivener, stood clear of all legal prejudice which attaches inconsequence of their asserting now to the contrary of all that their attestation of the will implied, and of what they testified to on examination in connection with its probate, their testimony would furnish no adequate basis for a dispute as to the decedent’s testamentary capacity. At most it shows an extreme bodily weakness existing, which, without more, is never allowed to invalidate a will.

The effort to show undue influence, aside from one or two circumstances of but little significance, derives its only support from the testimony of these same witnesses. The relevancy and weight of the evidence in this regard, can be appreciated only as the occasion for the present dispute is understood. The contention arises because of the fact that in this later will, testator distinguishes between his nephews and nieces, giving to the children of his brother, Edward Masseth, twelve in number, but $400 each, and dividing all the remainder, except the bank stock given to his friend and bookkeeper, John N. Hyle, between his other nephews and nieces, fourteen in number, in equal shares; whereas in his earlier will he had directed an equal division among all his nephews and nieces, and in his conversations with both his physician and scrivener, preceding the making of the last will, declared such to be his wish and purpose; reiterating it to the scrivener at the very time he was giving his instructions as to its preparation.

What the testator said to the physician, standing by itself, is little to the purpose ; it shows a change of mind in the testator with respect to his will, and that is all. Here, as on the other branch of the case, the testimony of the scrivener has a larger significance, but no greater effect in the determination of the present inquiry. When this witness was being instructed by Masseth as to how the will should be prepared, he was told by the latter, verbally, that he desired to distribute the balance of his estate between his nephews and nieces in equal shares; at the same time Masseth gave him a written memorandum of instructions. When the witness came to write the will he discovered the disagreement between the verbal and written instructions, and returned and told Masseth of the variance, and asked him which he should observe in preparing the will. Masseth replied, “You follow the writing ” or “ Make it as it is written.” The will having been written according to this last instruction, the next evening, immediately before its execution, so much of it as related to the bequest to Edward Masseth’s children, was read over to the testator by the scrivener, and then the entire will was read over to him by the physician. He was then asked if that was his will, and he replied that it was. To the question whether he wished to execute it as his will, or whether he desired the parties present to sign as subscribing witnesses, he replied that he did.

Charles Masseth, a nephew of testator, but not one of the children of his brother Edward, was with testator in the sanitarium continuously from the time of the surgical operation until his death. This nephew and his sister were the only surviving children of their parents. Some days before testator’s death, he conveyed to them a property in New York state valued at §10,000, but subject to a mortgage of $5,000. With this circumstance stated, and the fact that there is a resemblance in the phraseology of the two wills, the one made in Butler, and the other in Michigan, but not in any degree striking or remarkable, the whole of the contestant’s case is presented. There is not a word shown to have been spoken by Charles Masseth, or any act done by him, or for that matter, by any one that contributed to the determination of the testator to dispose of his property as he did. So far as the evidence shows, the testator was entirely free from control, and wholly uninfluenced by those about him.

The 'evidence may afford to some minds a basis for suspicion that testator’s real purpose was to equalize Edward Masseth’s children with those to whom he had conveyed, during his illness, the property in New York, by giving to each of them $400, and allowing them to share equally with his other nephews and nieces in the remainder; that the scrivener failed to catch the actual meaning of the testator, or the testator failed to understand that the will as written did not express this purpose. Whether such mistake was made in the will can never now be determined. The will must speak for itself. At best it would be a suspicion only, and not in any way a matter of concern in our present inquiry. Barring the possibility of such a mistake on the part of the testator or the scrivener, with which we have nothing to do, the will stands, so far as the evidence shows, the correct expression of the free and deliberate choice of an understanding mind. The assignments of error relating to the admission of evidence and the cross-examination of witnesses, do not need to be considered. If error was committed in respect to these matters, it was inconsequential and therefore without prejudice to appellants.

Appeal dismissed and decree affirmed.


author: Mjb. Justice Potter,

text:
    Brown v. Forest Water Company, Appellant.

      Appeals — Assignments of error — Evidence.
    Assignments of error to the admission of evidence will not be considered where they contain no reference to the number of the printed page of the testimony; nor where they contain more than one bill of exception; nor where there is embodied in one assignment alleged error by the court in refusing to strike out the testimony of several different witnesses.

      ■ .Water company — Eminent domain — Evidence.
    In proceeding's to condemn land by a water company, the landowner may show that the property taken by the company was adapted to reservoir purposes from the natural formation of the land, the amount of water flowing over it, and its proximity to certain towns.
    In estimating the market value of land everything which gives it intrinsic value is to be considered, and it is not to be limited to a particular use.

      Trial — Charge of court — Instructions.
    While it is perhaps better for the trial judge not to read to the jury erroneous instructions given by another court to another jury, although the purpose is to show that such instructions had been pronounced erroneous by the Supreme Court, yet such reading can do a party no harm, and is not ground for reversing the judgment.
    Argued Oct. 30, 1905.
    Appeal, No. 2, Oct. T., 1905, by defendant, from judgment of C. P. Cambria Co., March T., 1903, No. 37, on verdict for plaintiff in case of P. M. Brown v. Forest Water Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from report of jury of view. Before O’Connor, P. J. •
    The facts appear by the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,500, $750 having been remitted. ■ Defendant appealed.

      Errors assigned appear by the opinion of the Supreme Court.

      P. J. Little, for appellant,
    cited: Reiber v. R. R. Co., 201 Pa. 49; Spring City Gas Light Company v. Pennsylvania, etc., R. R. Co., 167 Pa. 6; Kossler v. Ry. Co., 208 Pa. 50; Harris v. R. R. Co., 141 Pa. 242; Fulmer v. Williams, 122 Pa. 191.

      A Ivin Evans, with him J. W. Leech and John E. Evans, for appellee.
    January 2,1906:
   Opinion by

Mjb. Justice Potter,

Plaintiff in this case was the owner of a tract of 175 acres of land, in Croyle township, Cambria county, of which defendant appropriated under the power of eminent domain, about three and a half acres for a reservoir site, together with a stream of water, and a strip of land for the laying of its water line. Viewers were appointed to assess the damages and upon an appeal from their report this issue was framed. Upon the trial the verdict was for #8,250, which was reduced to #2,500 by the court. Judgment was entered for the latter sum, and the defendant has appealed. The first seven assignments of error relate to the admission of testimony offered by plaintiff and the eighth assignment complains of the refusal of the court below to strike out certain testimony.

All these assignments violate rule 31 of this court, for the reason that they contain no reference to the page of the paper-book where the matter embodied in them may be found in its regular order in the printed evidence. They must, therefore, be disregarded: Gerwig v. Johnston Company, 207 Pa. 585. The fifth assignment of error also violates rule 29 by referring to more than one bill of exceptions. And the eighth assignment violates the same rule by embodying in one assignment alleged error by the court in refusing to strike out the testimony of three different witnesses. Distinct questions must be assigned separately.

The defendant cannot properly complain of the admission of evidence that the property taken by it was adapted to reservoir purposes, from the natural formation of the land, the amount of water flowing over it, and its proximity to certain towns. All these matters were elements entering into the market value of the property.

In estimating the market value of land, everything which gives it intrinsic value is to be considered, and it is not to be limited to a particular use: Allegheny v. Black, 99 Pa. 152. This rule was again applied in Wilson v. Gas Co., 152 Pa. 566, and in O’Brien v. Ry. Co., 194 Pa. 336.

We said in McGroarty v. Coal Co., 212 Pa. 53, “ Any present or proximate use to which land is likely to be put, though not by itself a criterion of damages, is an element of its value, and may be shown as such.”

The trial judge was very careful in his charge to exclude from the consideration of the jury in assessing the damages all speculative elements and future profits and to confine them strictly to the market value of the property before and after the appropriation. Whether or not the evidence which the court refused to strike out was improper and tended to prejudice the defendant, cannot be considered, as the defective assignments do not bring it properly upon the record. But it appears that the court felt that the jury had not given due weight to the caution which had been given, to disregard speculative estimates of the damages, and accordingly the verdict was reduced in amount. As to the question raised by the ninth assignment, it would perhaps have been better not to have read to the jury any erroneous instructions given by another court, to- another jury. The purpose was, of course, to point out the fact that such instructions had been pronounced erroneous by this court, and we do not see that the defendant could have suffered any harm from the reading of the extract from the opinion in another case. The true measure of damages was clearly set forth to the jury. The tenth assignment complains of a reference by the court in the charge, to some evidence of a demand for water in the vicinity by one or more companies needing a supply. But the contention of both sides, with reference to this matter, was cautiously brought to the attention of the jury. Taken as a whole the charge of the court stated correctly and clearly the rule as to the measure of damages laid down so frequently by this court in similar cases.

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


text:
    Commonwealth of Penna. to use, etc., Appellant, v. Magee et al.

      Appeals — Supreme and Superior Courts — Jurisdiction—Amount in controversy — Act of May 5, 1899, P. L. 248.
    Under the Act of May 5, 1899, P. L. 248, the amount really in controversy, where judgment for want of a sufficient affidavit of defense is refused by the court below, is the amount alleged to be due in the statement of claim, as of the time of bringing suit, and not as of the time of taking the appeal.
    A certificate of the court below is of no efficacy where the suit is for a sum certain averred in the statement of claim.
    Argued Jan. 9, 1906.
    Appeal, No. 258, Jan. T., 1905, by plaintiff, from order discharging rule for judgment for want of a sufficient affidavit of defense.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.,
    on motion to remit to the Superior Court for hearing and decision.
    Plaintiff brought suit September 2, 1902, claiming $889.70 with interest from March 16, 1892. At that time the claim with interest was less than $1,500. On March 27, 1905, the court below discharged a rule for judgment for want of a sufficient affidavit of defense, from which, on August 22, 1905, plaintiff appealed to the Supreme Court. At both these later’ dates the claim with interest exceeded $1,500. Appellant obtained from the court below and printed in his paper-book a certificate that the amount really in controversy exceeded $1,500.
    The Act of May 5,1899, P. L. 248, provides as follows :
    “ Section 4. The amount or value really in controversy shall be determined as follows :
    “ In actions of ejectment, either legal or equitable, and in all other actions or issues in the common pleas or in the orphans’ court that involve the possession of or the title to real property, or chattels, real or personal, the judge hearing the case shall certify whether the value of the land or of the interest or of the property really in controversy, is greater than fifteen hundred dollars, and his certificate shall be conclusive proof of such value for the purposes of this act.

      “ In any suit, distribution or other proceeding in the common pleas or orphans’ court, if the plaintiff or claimant recovers damages either for a tort or for a breach of contract, the amount of the judgment, decree or award shall be conclusive proof of the amount really in controversy, but if he recovers nothing the amount really in controversy shall be determined by the amount of damages claimed in the statement of claim, or in the declaration.”

      Charles L. Brown and Alex. Simpson, Jr., for. the motion.

      Trevor T. Matthews, contra.
   Per Curiam,

(orally at bar) :

For the purpose of determining to which court to take an appeal, the amount really in controversy in any suit wherein judgment was refused by the court below, is the amount claimed in the statement as of the time of. bringing the suit. The case will be certified to the Superior Court.


author: Mr. Justice Mestbezat,

text:
    McElroy v. Harnack, Appellant.

      Conspiracy — Trespass—Fraud—Joint tort feasors.

    In an action of trespass to recover damages for losses alleged to have been caused by a conspiracy among the four defendants, a verdict and judgment will not be set aside as against two of the defendants who were stockbrokers, where it appears that the brokers with one of the other defendants organized a corporation, issued bonds of the company in an amount thirty times the value of its property, and that the brokers by washed or fictitious sales on the stock exchange gave the bonds a high market value, and thus enabled the other two defendants to borrow large amounts of money thereon from the plaintiffs.
    Argued Oct. 26, 1905.
    Appeal, No. 104, Oct. T., 1905, by defendants, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1904, No. 205, on verdict for plaintiffs in case of T. C. McElroy et al., trading as McElroy & Boyle, v. Albert J. Harnack et al.
    Before Mitchell, C. J.,'Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.

      Trespass for conspiracy. Before McClung, J.
    The facts appear by the opinion of the Supreme Court.
    Defendants presented the following points :
    5. That there is no evidence in the case sufficient to sustain the allegations of the plaintiffs that the four defendants in this case conspired together to give a fictitious value to the bonds of the United States Fireproofing Association by fictitious sales and purchases on the floor of the Pittsburg Stock Exchange. Answer : This is refused. [1]
    7. That if the jury find that the purposes of the defendants, Harnack and Gartner, in the organization of the United States Fireproofing Association, and in accepting the issuing of the bonds in said corporation, was to enable them by the sale or use of the said bonds to raise funds to improve the properties conveyed by Harnack to said corporation, and to acquire other properties and enlarge the business of the said corporation so that the said corporation should be enabled to do business as a manufacturing corporation, such conduct cannot be held to be actionable as a conspiracy by the plaintiffs under the evidence in this case. Answer: This is affirmed; but, of course, an honest purpose in organizing the corporation will not protect them from responsibility for subsequent fraudulent use of its securities, if you find the fact as to such use against them. [2]
    9. That there is no natural or probable connection between the acts of Harnack and Gartner with reference to the issuing of the bonds of the United States Fireproofing Association, and the pledging of such bonds by Hamilton and Powelson in personal, private stock speculations. Answer: This is affirmed. You, of course, take that affirmance in the light of the general •charge suggesting how many of these things might throw light on other evidence in the case, although they themselves do not contain sufficient evidence to charge the parties with responsibility. [3]
    12. That the plaintiffs’ statement throughout alleges a joint tort in every particular participated in at every stage by all of the defendants ; and unless the jury find that these allegations are true, there can be no recovery in this case. [4] Answer: This means that you can find against all of the defendants or against none of them, even if you are convinced that some pf them are liable, 1 refuse-this. I have explained in the general charge the principles that govern in matters of that sort.
    13. That under all the evidence in the case the verdict must be for the defendants Harnack and Gartner. Answer: Refused. [5]
    Verdict and judgment for plaintiffs for $3,816. Defendants appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      J. S. Ferguson, with him E. Gt. Ferguson, for appellants.—
    Where in an action of trespass a joint tort is alleged it must be proved, and if the proof is only of a tort of one defendant or of two separate torts by different defendants, the action cannot be sustained against any of them: Minnich v. Lancaster, etc., Electric Ry. Co., 203 Pa. 632; Goodman v. Coal Twp., 206 Pa. 621; Wiest v. Electric Traction Co., 200 Pa. 148; Rowland v. Philadelphia, 202 Pa. 50 ; Dutton v. Lansdowne Boro., 198 Pa. 563.
    The evidence must be full, clear and satisfactory to establish a fraudulent conspiracy in a civil suit for damages: Biever v. Herr, 1 Pearson, 510; Bradley v. Fuller, 118 Mass. 239; Barber v. Lesiter, 29 L. J. C. P. 161.

      D. F. Patterson, with him A. M. Imbrie, for appellees,
    cited : Laverty v. Vanarsdale, 65 Pa. 507.
    January 2, 1906:
   Opinion by

Mr. Justice Mestbezat,

In a charge exceptionally clear as well as comprehensive and to which no error is assigned, the learned judge submitted this case to the jury and they found a verdict against all four of the defendants. Two of the defendants, Harnack and Gartner, have appealed, and they assign as error the answer.of the court to certain of their points for instruction. The questions raised by the assignments were anticipated and correctly answered in the charge and need no extended discussion here. The verdict is supported by an abundance of evidence, none of which is claimed to have been improperly admitted.

There was but a single question in the case and it was one of fact, The action was trespass for a conspiracy. by which the plaintiffs allege they were defrauded by the action of the defendants in creating and maintaining fictitious values of, or a false market for, the bonds of a New Jersey corporation, known as the United States Fireproofing Corporation. The plaintiff’s claim that relying upon the fictitious values of the stock, fraudulently created by the defendants, they were induced from time to time from April 1, 1902, to March 1,1903, on the security of these bonds at par, to advance money in large amounts aggregating at the last named date a balance of 19,435.48. The court, after telling the jury that the plaintiffs must sustain their allegation of fraud by evidence that was full, clear and satisfactory, said: “ As I have said, the burden is upon the plaintiff to convince you by the preponderance of evidence and to the degree I have stated, as to every element of his case, to convince you that a fraud was perpetrated upon him, to convince you that these defendants, or so many of them as you may find liable, were concerned in that fraud, and to convince you that he suffered financial damage as the direct result of that fraud, or the approximate result, as the legal expression is.”

A résumé of the more important facts will conclusively show that the two appellants were participants in the fraudulent transaction from its inception, and continued in it until they and the other two defendants were detected and exposed. About the middle of January, 1902, Harnack, Gartner and Hamilton, three of the defendants, purchased certain real estate in Ohio which was conveyed to Harnack, the consideration being $15,000 in cash and the assumption of a mortgage indebtedness against the property of about $25,000. Within a week, these parties obtained a charter in New Jersey for the United States Fireproofing Corporation with an authorized capital of $1,250,000, the par value of the stock being $100 per share. On February 15, Harnack conveyed the property to the company, the consideration named in the deed being “$1.00 and other good and valuable considerations.” Notwithstanding the mortgage incumbrance of $25,000 on the property, Harnack conveyed it to the company with a covenant “ that the title so conveyed is clear, free and unencumbered.” On the same day the corporation gave a mortgage on this property to the Guaranty Trust Company of New York to secure $500,000 of “ first mortgage,.six per cent, sinking fund gold bonds.” These bonds were at once turned over to a firm of stockbrokers, E. D. Gartner & Company, composed of the appellants, E. D. Gartner and A. J. Harnack. On March 6, the entire capital stock of the corporation was issued to A. J. Harnack. The result of the efforts of the appellants up to this date, and within two months of the inception of their scheme, was a purchase of a tract of Ohio real estate for $15,000 subject to a $25,000 mortgage, the incorporation of a New Jersey corporation with an authorized capital stock of $1,250,000, the transfer to this corporation of the real estate, the issuing of $500,000 of bonds secured by a second mortgage on the real estate, and the delivery to Gartner and Harnack of the entire bond issue and to Harnack of all the authorized capital stock.

Subsequently, bonds of the par value of about $100,000 were delivered to Hamilton by one of the appellants and their firm retained the balance of the issue. The first sale of the bonds on the Pittsburg Stock Exchange took place on April 19,1902. From that date until December, 1902, bonds of the par value of $74,000 were sold and bought on the exchange at prices ranging from $95.00 to $105, and then dropping to $50.00. Gartner & Company purchased bonds of the par value of $1,000 ánd sold $22,000, $18,000 of which went to Powelson who also purchased $21,000 of Hamilton and sold to him $18,000 of the bonds. In all the transactions in the sale and purchase of these bonds on the exchange, except one, the defendants or some of them were sellers or purchasers or both.

Hamilton was the general manager of the United States Fireproofing Corporation and Powelson was a clerk in the National Bank of Western Pennsylvania. Five days after the first sale of bonds on the exchange, Hamilton obtained from the National Bank of Western Pennsylvania the discount of a note on three of the bonds as collateral, and continued to use the bonds as collateral until September 16, 1902, when the ■ bank had $26,000 of the bonds to secure a loan of $15,000. Powelson deposited four of the bonds with the bank to secure a loan of $2,000 on April 23,1902, the day preceding Hamilton’s first loan, and he continued to obtain further loans from the bank until he had pledged $39,000 of the bonds as collateral. After the bonds of the corporation ceased to have a market value, in January, 1903, the loans of the bank to Hamilton and Powelson were consolidated and guaranteed by E. D. Gartner & Company. About the same time, Gartner & Company secured a loan ,of $15,000 by depositing with the bank $200,000 of the bonds. Subsequently, all these loans were paid by Gartner & Company, to whom all the pledged bonds were returned. The president of the bank testified that in the fall of 1902, Powelson told him that he and Hamilton “ traded quotations ; made quotations on the bonds; they would get one broker to buy the bonds, and another broker to sell them at a price of par or over, which indicated that the bonds had a market value, and which trades were not real trades.” '

Harnack and Gartner were members of the Pittsburg Stock Exchange and, of course, were familiar with its dai]y transactions. They, therefore, knew of each day’s sales and purchases of the Fireproofing corporation bonds made by themselves and the other defendants and the fictitious and highly inflated values which their action gave the bonds. They also knew, what was shown by the testimony, that no money whatever went into the treasury of the corporation from sales of the stock or the bonds. They issued the bonds, put them on the market at the stock exchange and sold, as well as purchased, some at par which they knew to be more than thirty times their real value. In doing so, they gave the bonds a value which they knew they did not possess and their action was a fraud on innocent purchasers and others who were induced to accept the bonds at their inflated values. As said by the learned judge in his charge : “ The party who furnishes the bonds with the understanding that they shall be used fraudulently is just as much a party to the conspiracy as those who actively carry it out to its end.”

Further discussion of the case is unnecessary. As said in the opinion refusing a new trial: “the less discussion of these matters by the court the better for the defendants.” It was the fictitious values given the bonds by the preconcerted action of the four defendants which injured the plaintiffs and constitutes the tort for which this action was brought.

The judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Boswell, Appellant, v. Buhl.

      Corporation — Stock—Shareholders—Agreement as to sale of stock — Contract — Equity.
    On a bill in equity for an injunction it appeared that the plaintiff and the seven individual defendants were the owners of all of the common stock of a corporation, which was also a party defendant. By the charter and by-laws of the coiporation the holders of the common stock had the management of the affairs of the corporation, and all of the eight individual parties were actively engaged in some capacity in the management of the business of the company. These parties entered into an agreement in writing in which they recited that it was deemed advisable that the common stock should be held only by those actively engaged in the management of the company, and they agreed to hold the stock on the following terms and conditions: (a) If the holder of stock ceases to be a desirable associate or voluntarily resigns his position, the holders of a majority of the stock may appraise and purchase his stock which “shall be divided or distributed among the holders of said common stock in proportion to the amounts of stock held by each;” (6) if the holder of any stock desires to sell it, he must first offer it to the holders of the balance of the stock at a cash price to be determined by the holders of a majority of the stock, at which price they may buy it, “and distribute same among said holders in proportion to the amount of their respective holdings;” and if they refuse to purchase it at the price, the owner may sell it in open market; (c) the common stock “ shall be under tíie control of and subject to the vote or decision of the majority of said stock.” Two of the defendants who owned between them a controlling interest in the stock, proposed to sell a portion of it to the five other defendants, thus excluding the plaintiff. Held, that under a proper interpretation of the. contract the stock proposed to be sold must be offered to all of the holders of the common stock, including the plaintiff, but that the plaintiff was not entitled to a share in the distribution in such a way as to exclude each of the two selling stockholders from sharing in the stock which the other proposed to sell.
    Argued Oct. 27, 1905.
    Appeal, No. 119, Oct. T., 1905, by plaintiff, from decree of O. P. No. 2, Allegheny Co., July T., 1904, No. 1085, dismissing bill in equity in case of George B. Boswell v. Boggs & Bubl, a corporation, Russell H. Boggs, Henry Buhl, Jr., J. F. McCandless, A. Bion Boggs, David Roney, Elizabeth B. Rae and William B. Denny.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      William B. Rodgers, with, him Edwin 8. Craig, for appellant.
    The court had jurisdiction: Northern Cent. Ry. Co. v. Walworth, 193 Pa. 207 ; Lindsay’s Estate, 210 Pa. 224; Rigg v. Reading, etc., St. Ry. Co., 191 Pa. 298 ; Goodwin Gas Stove, etc., Co.’s App., 117 Pa. 514; Rumsey v. R. R. Co., 203 Pa. 579; Fitzsimmons v. Lindsay, 205 Pa. 79; Ralston v. ilimsen, 204 Pa. 588.

      John S. Ferguson, with him Fd. Q. Hartje, for appellee.
    Specific performance ought not to be enforced by injunction, where the injury liable to result from its non-enforcement is not actual and material: Morgan v. City of Binghamton, 102 N. Y. 500 (7 N. E. Repr. 424) ; Genet v. D. & H. Canal Co., 122 N. Y. 505 (25 N. E. Repr. 922) ; Nash v. Towne, 72 U. S. 689; Reed v. Ins. Co., 95 U. S. 23.
    The court below properly construed the contract: Case v. Cushman, 3 W. & S. 544; McLarren v. Robertson, 20 Pa. 125 ; Codding v. Wood, 112 Pa. 371; Streator v. Paxton, 201 Pa. 135: Weise’s App., 72 Pa. 351 ; Postal Tel. Cable Co. v. W. U. Tel. Co., 155 Ill. 335 (40 N. E. Repr. 587); Consolidated Coal Co. v. Sohmisseur, 135 Ill. 371 (25 N. E. Repr. 795) ; Kemp v. Bird L. R., 5 Ch. Div. 549.
    January 2, 1906:
   Opinion by

Mr. Justice Mestrezat,

The validity of the contract involved in this controversy has not been attacked, nor is any question raised by the pleadings as to the jurisdiction of the court below. We may say, however, that, under our decisions, the circumstances of the case fully warrant a court of equity in assuming jurisdiction. The rights of the parties depend upon the construction of their agreement and that is the controlling question involved in this litigation.

The contract is dated April 20,1899, and was signed by the holders of all the common stock of the corporation. By its charter and by-laws the holders of the common stock have the control and management of the affairs of the corporation. The agreement recites this fact, and, further, that the parties thereto are actively engaged in the business of the corporation and are holding positions of trust and responsibility in its management, and that “ it is deemed advisable by the parties hereto that the common stock of said corporation shall be held and owned only by those actively engaged in its management, either as officers or directors, or holding positions of trust and responsibility under said officers, or by parties entirely acceptable to the holders of the majority of said stock.” The parties then agree “ to accept and do hereby purchase the said shares of common stock set opposite their respective names, upon the following terms and conditions.” These terms and conditions are : (a) If a holder of stock ceases to be a desirable associate or voluntarily resigns his position, the holders of a majority of the stock may appraise and purchase his stock which “ shall be divided or distributed among the holders of said common stock in proportion to the amounts of stock held by each; ” (h) if the holder of any stock desires to sell it, he must first offer it to the holders of the balance of the stock at a cash price to be determined by the holders of a majority of the stock, at which price they may buy it, “ and distribute same among said holders in proportion to the amount of their respective holdings,” and if they refuse to purchase it at the price, the owner may sell it in open market; (o') the common stock “ shall be under the control of and subject to the vote or decision of the majority of said stock.”

Russell H. Boggs and Henry Buhl, Jr., each proposed to sell 750 shares of his common stock to five of the other holders of the stock, not including Boswell, the plaintiff. The latter then filed this bill to restrain both Boggs and Buhl from selling and transferring, and the other defendants from purchasing, the stock, “ other than in the manner and upon the terms provided for in the agreement.” The plaintiff avers in his bill that by the terms of the agreement “ the common stock which they (Boggs and Buhl) proposed to transfer should first be offered to all of the holders of the balance of the common stock, except the said Russell H. Boggs and Henry Buhl, Jr., at a cash price to be determined upon by the holders of a majority of said common stock.” Under his construction of the contract, the plaintiff claims to be entitled to 924 of the 1,500. shares of stock proposed to be transferred by Boggs and Buhl. On the other hand, the defendants contend that under a proper interpretation of the contract, Boggs and Buhl may sell the stock to any of the present holders of common stock without being required to first offer if to all of them, and that they were only required to offer the stock to all the balance of the holders of stock before they could sell to an outsider. The court sustained the position of the defendants and dismissed the bill.

We have no doubt that the purpose of R. H. Boggs and Henry Buhl, Jr., in proposing to sell a part of their holdings to the smaller shareholders of the common stock was, as suggested by them, to insure the success of the corporation and to increase the value and earning power of all of the common stock. Acquiring and holding the additional stock would unquestionably be a strong incentive to the smaller shareholders to increase their efforts in behalf of the corporation and would, no doubt, secure from them greater activity in advancing the common interests of all the holders of the stock. But the purpose thus sought to be accomplished by Mr. Boggs and Mr. Buhl was precisely the purpose which all the parties had in view when they signed the contract of 1899 under which they hold the common stock. They all then thought that the enforcement of the terms and conditions set forth in that instrument would result to the mutual benefit and advantage of all the holders of the common stock. Whatever views, however, may have been, or may now be, entertained as to the best methods of securing the success of the corporation, all the parties who signed the agreement must comply with its terms. It is the law of the case and as such must be enforced and observed.

We do not agree with the learned trial judge in his construction of the contract under which the parties purchased and now hold the common stock of the corporation. One of the manifest and conceded purposes of the parties as disclosed by the agreement was that the stock should be held by those who were managing and controlling the business of the corporation. We think it equally clear that it was the intention of the parties that in the sale and transfer of any of the common stock, regardless of the reasons therefor, the owners of the remaining shares should have an opportunity to increase their holdings in proportion to their original purchases. This is evident from the terms of the contract. The incompetency or personal conduct of a shareholder may, at the option of the holders of a majority of the stock, compel him to sell his stock. A like provision is made in the contract when a holder of any common stock resigns his position. The purchasers in each instance are the holders of a majority of the stock. But while they are the purchasers, they are required to distribute the stock “ among the holders of said common stock in proportion to the amount of stock held by each.” This provision preserves among the shareholders the ratio or proportion of the holdings which existed at the original purchase of the stock. The next provision of the instrument requires the holder of any shares of stock who desires to sell to first offer them to the holders of the balance of the stock at a price to be determined by the holders of a majority of the stock. The holders of the common stock may purchase at this price but, as in the instances above noted, they are required to “ distribute the same among said holders in proportion to the amount of their respective holdings.” In each and every instance, therefore, whenever, for any cause, stock is sold.and transferred, it is required to be distributed among the remaining shareholders “ in proportion to the amount of their respective holdings.” This results in maintaining the relative positions of the shareholders to each other as they were when the stock was originally purchased and the agreement was entered into by all the holders of the common stock.

If, however, the holders of the common stock refuse to purchase any stock offered them by any of their number, then the contract provides that the owner may sell it in the open market. It is only in base of such refusal, that he can sell it to an outsider and thereby prevent its being purchased and distributed proportionately among the. holders of the balance of the stock. In every other instance, as we have seen, the agreement is explicit that the ratio of the original holdings shall be maintained.

It is essential to the protection of the interests of the original shareholders that the ratio of their holdings of common stock shall be preserved. The agreement provides that all the common stock “ shall be under the control of and subject to the vote or decision of the majority of said stock, and any action taken by or decision arrived at by said majority shall be conclusive and binding and without exception or appeal upon all the holders of said, common stock.” And further, it is the holders of a majority of the common stock who fix the price to be paid a retiring shareholder for his stock, who determine who is an undesirable associate, and who purchase the stock of such associate and of any stockholder who voluntarily resigns his position. Hence it is obvious that it is of the utmost importance to a shareholder that he shall maintain his relative voting strength by the acquisition of his proportionate share of the stock sold by other holders. The extent of his power in the control and management of the business of the corporation as well as in the distribution of its common stock and hence the protection of his interests depend upon the right to demand and receive his proportionate share of the stock sold by any of the other shareholders. As the common stock is now held by the several owners, R. H. Boggs and the plaintiff or Henry Buhl, Jr., and the plaintiff have a majority of it, and hence can control the policy and management of the corporation. If, however, the proposed sale is consummated, Boggs or Buhl and the five vendees of their stock, now the holders of a very small proportion of the stock, would have the majority holdings, thereby increasing the latter’s voting power in the corporation beyond that of the plaintiff, and giving them with either Boggs or Buhl the control of the corporation.

It being the manifest intention of the parties, as disclosed by their contract, that the relative holdings of the original owners of the common stock should be maintained and that, therefore, each holder of stock should have an opportunity to increase his holdings by the purchase of his proportionate share of the stock sold by other holders, it is clear that Boggs and Buhl could not select certain individuals among the other shareholders and sell the 1,500 shares of stock to them and thereby deprive the remaining shareholders of their proportionate share of the stock. We are therefore of opinion that, in the language of the contract, “if any holder of any shares of said common stock desires to sell the same, or any part thereof, said shares must first be offered to the holders of the balance of said common stock,” and that this provision of the agreement applies to all sales of stock whether the proposed purchaser be a stockholder or an outsider.

But the plaintiff’s contention that he is entitled to 924 shares of the 1,500 shares of the common stock proposed to be sold cannot be sustained under our interpretation of the contract. As averred in the bill, each of the two stockholders (Boggs and Buhl) proposes to sell 750 shares of his stock. They do not offer to sell 1,500 shares of the stock held by them jointly, but each proposes to sell a certain number of shares owned by him individually. They would therefore each have the right to demand his proportionate share of the 750 shares of the stock sold by the other. The contract explicitly provides that “ any holder of stock who desires to sell ” must first offer his stock “to the holders of the balance of said common stock,” and of course that includes all the holders of common stock except the one who then proposes to sell. When the purchase has been consummated, the- agreement further requires that the stock shall be distributed “among said holders in proportion to the amount of their respective holdings.” It is therefore manifest that Boggs and Buhl are each entitled to his share of the stock which the other proposes to sell.

The decree is reversed, and it is now ordered, adjudged and decreed that an injunction be issued by the court below as prayed for in the plaintiff’s bill.