author: Per Curiam,

text:
    Evans v. Philadelphia Bourse, Appellant.

      Contract — Architect—Drawings—Evidence.
    Jn an action by an architect to recover his feas, where there is evidence from which it may be inferred that the parties treated the drawings furnished by the plaintiff as those stipulated for by the contract, the case is for the jury, and a verdict and judgment for plaintiff will be sustained.

      Trial — Charge—Preponderance of evidence — Preponderance in the number of witnesses.

    Where the court in its charge uses the expression “preponderance of evidence,” in the sense of preponderance in the number of witnesses, and this is obvious from the context, so that the jury could not have been misled, a judgment on the verdict will not be reversed.
    Argued March 20, 1906.
    Appeal, No. 58, Jan. T., 1906, by defendant, from judgment of C. P. No. 2, Pliila. Co., March T., 1898, No. 1,101, on verdict for plaintiff in case of David Evans v. Philadelphia Bourse.
    Before Mitchell, C. J., Fell, Brown, Mestbezat and Stewart, JJ.
    Affirmed.
    Assumpsit by an architect for his compensation. Before Barratt, J.
    At the trial there was evidence offered for plaintiff which tended to show that the parties treated the drawings furnished by the plaintiff as those stipulated for by the contract.
    The court charged in part as follows:
    [Look at the probabilities; search for inconsistencies ; find the contradictions. The preponderance of the evidence may aid you, but it is not always the best guide. In this case you have the plaintiff’s sworn testimony as to a large number of alleg’ed facts. Against it you have the sworn testimony of some five or six witnesses, and inmutes and resolutions of the bourse made concurrently with the alleged happenings.
    Well, this may mean much, it may mean little, and you may conclude that it means nothing. It may or it may not be conclusive. Let us take an illustration, not of the conditions met with in this case, but the reliability of preponderance of evidence in some cases. Suppose that a small child should tell you that he saw a large wolf run away with an unusually small lamb. As against this ten adults testified that this was not the case at all, but that the real fact was that this very small lamb was actually running away with the large wolf. It would not take a jury very long to determine where the truth lies, notwithstanding ten against one. Of course, as I have told you, this is not intended to illustrate the condition of the evidence in this case as you have it before you, but simply to call your attention, to the error that a jury might fall into by deciding questions of fact upon preponderance of evidence alone. It is simply one of the elements properly to be taken into consideration in an effort to ascertain where the real truth lies.] [4]
    Verdict and judgment for plaintiff for $17,520. Defendant appealed.

      Errors assigned among others were (4) portion of charge as above, quoting it, and (34) refusal of binding instructions for defendant.

      May 14, 1906:

      John F. Lewis, with him Francis S. Laws, for appellant.

      O. Berkeley Taylor, with him John Gf-. Johnson, for appellee.
   Per Curiam,

This case does not present any material questions except of fact.

There was evidence from which it might be inferred that the parties treated the drawings furnished as those stipulated for, and that matter was for the jury.

What the judge said about the preponderance of evidence was inaccurate, but it is perfectly clear that by preponderance of evidence he meant preponderance in the number of witnesses, and the illustration he gave the juiy, though by no means happy, must have made his meaning clear enough to prevent their being misled by the previous inaccurate phrase.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Parrish v. Felts, Appellant.

      Judgment — Opening judgment — Findings of fact — Review.
    On an appeal from an order discharging a rule to open a judgment the Supreme Court will not review a finding of fact based upon sufficient evidence that the defendant had not made two payments of a like amount on account of the judgment as claimed by him.
    Argued April 10, 1906.
    Appeal, No. 309, Jan. T., 1905, by order of C. P. Luzerne Co., June T., 1904, No. 229, discharging rule to open judgment in case of Ella D. Parrish, Executrix of Frederick B. Parrish, v. Isaac B. Felts.
    Before Mitchell, C. J., Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment.

      Error assigned was order discharging the rule.

      Paul J. Sherwood, for appellant.

      B. R. Jones, with him Thos. H. Atherton, for appellee.

      May 24, 1906 :
   Per Curiam,

The sole controversy in this case is whether, in May, 1898, the appellant made two payments of 15,000 each or only one. It is not desirable to cumber the reports with extended discussions of mere questions of fact of no interest or value to anyone but the immediate parties. It is sufficient, therefore, to say that defendant has no receipt, nor is there any other written evidence to sustain his claim of two payments in the same month, while on the other hand the testimony on the part of the plaintiff that there was but one, is supported by the statement of account given to defendant, and not objected to by him, and by the undisputed fact, that after the date of the alleged second payment he continued to pay interest on the larger balance claimed by plaintiff. The case of defendant was manifestly built up on a confusion of the dates when payments became due and when they were actually made.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Luther v. Luther, Appellant.

      Equity — Equity pleading — Equity practice.

    The relief afforded by a decree in equity must conform to the case as made out by the pleadings as well as to the proofs. Every fact essential to entitle a plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proofs of matters not alleged can be. made a basis for equitable relief.
    A decree declaring one of the defendants a trustee of real estate for the benefit of the complainant cannot be sustained where the only prayer of the bill was for a decree of specific performance against another defendant and the averments of the bill show that this was the only relief sought.
    Argued April 17, 1906.
    Appeal, No. 112, Jan. T., 1906, by F. O. Luther, from decree of C. P. Blair Co., Equity Docket C No. 455, on bill in equity in case of Louisa Luther, widow of Chrysostom Luther, deceased, v. The Standard Building and Loan Association and F. O. Luther and J. W. Luther, heirs of Chrysostom Luther, deceased.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for specific performance. Before Bell, P. J.
    The complainant in her bill alleged in substance as follows:
    That her husband, Chrysostom Luther, was on April 29,1893, and prior thereto, the owner of a tract of land, situate in Carroll township, Cambria county, Pennsylvania, containing about 168 acres; that on April 29, 1893, the said Chrysostom Luther obtained a loan from the Standard Building and Loan Association, of Altoona, one of the defendants, of $3,400, giving a mortgage upon the said land to secure the payment of the same.
    That on April 15, 1893, the said Chrysostom Luther made a deed to F. O. Luther, his younger son, one of the defendants, and the appellant in this case, for about eighty-three acres of the said land.
    That on March 10, 1895, the said Chrysostom Luther, for the consideration of $3,400, conveyed the remaining portion of the said land, which was about eighty-five acres, to the said Standard Building and Loan Association, of Altoona, and cotemporaneous with the said deed a lease was entered into between the said Standard Building and Loan Association, of the first part, and the said Chrysostom Luther, of the second part, wherein the party of the first part leased to the party of the second part the said land for a period of three years, at a monthly rental, with the option given to the said Chrysostom Luther of purchasing the said property at any time during the period of the said lease, by paying to the said association the amount of money it had in the said land, together with interest thereon. That the said Chrysostom Luther died in October, 1897, without having exercised the right of said option and without having paid the rent in full.
    That after the death of the said Chrysostom Luther the lease and option to purchase expired, and that the same was renewed hy a parol agreement between Louisa Luther, plaintiff, and the said Standard Building and Loan Association upon the same terms excepting as to the duration of the lease and the option to purchase. Under said agreement the plaintiff then and there took possession, paid the taxes and paid the rental in the sum of $1,000 to the said association.
    That on November 29, 1902, the said association sent a letter, by its solicitor, George B. Bowers, Esq., to the plaintiff, requiring her to elect or refuse the property under the terms of the said option, and giving her until December 6,1902, to make a cash payment upon the same, and to pay the balance not later than thirty days.
    That in pursuance of the said requirements in the said letter, the plaintiff, on December 6, 1902, tendered a cash payment of $50.00 to the said association and offered to pay the balance within thirty days, with interest; that on January 3, 1903, the plaintiff tendered the said association the sum of §3,825, being consideration in full for the said premises, which was refused by the said association.
    The plaintiff prayed relief as follows:
    1. That the specific performance of the contract of purchase and sale be decreed.
    2. That the defendant association be ordered and decreed to execute and deliver to the plaintiff, her heirs and assigns, a good and sufficient deed, clear of encumbrance, for the messuage and tract of land.
    3. That the defendant association be enjoined and restrained from making a deed for the said premises to any' other party.
    4. That such other and further relief be granted as justice and equity may require.
    5. That the costs be decreed to be paid bj*- the defendant association.
    The Standard Building and Loan Association and F. O. Luther filed a joint answer to the plaintiff’s bill, the substance of which is as follows:
    The defendants admitted the ownership of the said land by the said Chrysostom Luther, the mortgage from the said Chrysostom Luther to the said building association, on April 29, 1893; the conveyance of the eighty-three acres of said land by the said Chrysostom Luther to F. O. Luther on April 15,1893; the conveyance of the remaining portion of the said land by Chrysostom Luther to the said building association by deed dated March 10, 1895; and the execution of a lease by the building association to the said Chrysostom Luther for the said remaining portion and the option given the said Chrysostom Luther to purchase the same at any time within the period of the lease, to wit: three years. The defendants admitted that the lease and option to purchase which the said Chrysostom Luther had with the said building association had expired; but they denied any, parol agreement between the plaintiff, Louisa Luther, and the said association as to the renewal of the said lease and option to her; also, that, while the plaintiff had lived on the land for a number of years after the death of her husband, she only paid a small portion of the rental due to the association for the said land.
    The defendants further answered that the said building and loan association was the absolute owner of the said land, and that on November 20,1902, F. O Luther came to the city of Altoona and called upon George B. Bowers, Esq., solicitor for the said association, and inquired about the purchase of the land from the said association. That the said Bowers subsequently, acting under the misapprehension that the purchase was to be made by Louisa Luther, reported to the association that she, Louisa Luther, desired to buy a farm, and had offered to pay the association the amount of money they had in the farm, whereupon, on November 27, 1902, the said association agreed to sell the same for the amount they had in the farm, to wit: $3,819.98. That the said Bowers, still acting, also being unacquainted with the post office address of F. O. Luther was as agent for and on behalf of Louisa Luther, and also being unacquainted with the post office address of F. O. Luther, at the time, wrote to the said Louisa Luther on November 29, 1902, a letter stating that the association would sell the premises to her for the amount the said association had in it, giving her until December 6, 1902, to make a cash payment, and thirty days thereafter to pay the balance. That subsequently, and before the said letter readied the said Louisa Luther, F. O. Luther again came to the city of Altoona and notified the said Bowers that he, F. O. Luther, was negotiating for himself for the purchase of the land. Whereupon the said Bowers, at a subsequent meeting of the board of directors of the said association, explained that F. O. Luther was negotiating for the purchase of the land for himself, and that the association, on December 3, 1902, passed a resolution selling the said land to the said F. O. Luther ; and that he, the said F. O. Luther, on December 3, 1902, paid $500 of the consideration for the said property, and on December 5, 1902, paid the consideration in full.
    John W. Luther filed a paper of record assigning any supposed interest he had to the plaintiff.
    The court entered the following final decree:
    On March 3,1906, this matter came on for hearing on exceptions filed to the opinion in the nature of a report of a master and was argued by counsel. And now, March 5, 1906, after due consideration said exceptions are hereby overruled except in the two particulars hereinbefore specified, and it is hereby ordered, adjudged and decreed that, if Mrs. Louisa Luther or John W. Luther comply with the requirements of this decree as to reimbursing F. O. Luther for their proper proportion of the purchase money paid to the said Standard Building and Loan Association, F. O. Luther shall hold the land purchased by him from the said association, consisting of 168 acres, seventy-seven perches, less eighty-three acres and fifty-five perches sold by Chrysostom Luther to F. O. Luther by deed dated April 15,1893, as trustee for the widow and heirs of Chrysostom Luther, just as if Chrysostom Luther had died seized of said land intestate, and the same had descended under the intestate laws. Such trusteeship, however, to be conditioned upon Mrs. Louisa Luther and John W. Luther on or before May 1, 1906, or if an appeal is taken within thirty days after final decree, reimbursing F. O. Luther for the proportionate amount of purchase money paid by him for the shares or interest in the property other than his own. In case a sale or disposition of said property is made the purchase money so paid by the respective parties, with interest, remains an excess then Mrs. Louisa Luther to be just paid out of said excess the sum of $908.92, with interest from this date. The balance, if any, of said excess to be distributed in accordance with the intestate laws; one-third to be invested for the benefit of the widow, Mrs. Luther, during her life; the remainder to be equally divided between F. O. Luther and John W. Luther. F. O. Luther to pay the costs of this case.

      Error assigned amongst others was the decree of the court.

      R. A. Henderson and Thomas H. Greevy, for appellant.
    The mere relationship, of itself, sustained by one with his mother and brother is not sufficient to constitute him a trustee for them in the purchase of land by him from a third party, on which the mother was a tenant: Kyle v. Wills, 166 Ill. 501 (46 N. E. Repr. 1121) ; Evans v. McKee, 152 Pa. 89; Baker v. Baker, 22 Minn. 262; Hamilton v. Buchanan, 112 N. Car. 463 (17 S. E. Repr. 159).

      To create a fiduciary relation between two or more persons, such as would constitute one a constructive trustee for the others in the purchase of property from a third person, it is necessary that there be something more than the mere reposing of confidence on the one side. There must also be an assent, express or implied, of the person in whom the confidence is reposed, to act in a fiduciary capacity towards the person who confides in him: Fletcher v. Bartlett, 157 Mass. 113 (31 N. E. Repr. 760); Lewis v. Ziegler, 105 Mo. 604 (16 S. W. Repr. 862) ; Pickler v. Pickler, 180 Ill. 168 (54 N. E. Repr. 311).
    To entitle a person to a decree against another constituting the other a constructive trustee, it is necessary for the person instituting the action to tender the consideration and thus put the other party in statu quo: Lyle v. Shay, 165 Pa. 637; Holtz v. Borgmann, 6 Pa. Dist. Rep. 217 ; Walker v. France, 112 Pa. 203; Bird’s Appeal, 91 Pa. 68; Nulton’s App., 103 Pa. 286.
    The relief afforded by the decree must conform to the case made out by the pleadings : Thompson’s Appeal, 126 Pa. 367 ; Railroad Co. v. Railroad Co., 160 Pa. 277; Traction Co. v. Canal Co., 1 Pa. Superior Ct. 409; Edwards v. Brightly, 19 Phila. 251; Horton’s Appeal, 13 Pa. 67.
    The decree must conform with the theory of the bill: Cox v. Esteb, 68 Mo. 110 ; Vasquez v. Ewing, 24 Mo. 31; Marshman v. Conklin, 21 N. J. Eq. 546; Howard v. Jones, 40 N. C. 75; Rejall v. Greenhood, 92 Fed. Repr. 945 ; 35 C. C. A. 97; Francis v. Bertrand, 26 N. J. Eq. 213; Walker v. Hill, 27 N. J. Eq. 191.
    The relief granted must conform to the prayer of the bill, and cannot extend beyond that prayer: Potter v. Hoppin, 10 Phila. 396; Passyunk Building Association’s Appeal, 83 Pa. 441; Del. & Hudson Canal Co. v. Coal Co., 21 Pa. 131; Thomas v. Ellmaker, 1 Clarke, 502.
    The relief to be granted under the general prayer must not only be consistent with the specific relief demanded, but must be sustained by the case made by the bill: Del. & Hudson Canal Co. v. Coal Co., 21 Pa. 131.

      E. H. Flick and W. I Woodcock, with them H. C. Madden, for appellee.

      June 27, 1906:
   Opinion by

Mr. Justice Brown,

The court below has found, as a fact, under evidence to sustain the finding, that the appellant procured by artifice and deception the signature of his mother to the letter of December 5, 1902, addressed to the Standard Building and Loan Association of Altoona, and he could not, therefore, complain of this decree, if there were a proper bill to support it and it conformed to the prayer for relief.

The deception found to have been practiced by the son upon his mother was of a negative character, but it was not, for that reason, less potential in inducing her to sign the letter. He knew she had been struggling to regain the property, with the assistance” and under the advice of her brother, E. H. Mick, Esq., a member of the Blair county bar. When he presented the letter to her she asked him whether he had seen his Uncle Ed., to which, he admits, he replied that he had. He must have understood from her question that she wished to be assured that her brother knew all about the transaction and would approve her signing the letter, and he must have known that she would not have signed it without such approval. By his reply he must have intended to convey the very impression that was made upon her mind, that her brother knew what she was about to do, and sanctioned it. If he had told her just what had occurred between him and his uncle, according to the latter’s testimony, it is not to be doubted that she would not have signed the paper; and so of what was said by him about his brother John, which was intended to convey the impression that he, the only other person interested in the farm, was satisfied. On the cross-examination of the appellant, after his admission that he had never said anything to his mother about his intention to buy the property, though living near her, he gave the following reason for not having done so: “I knew it wouldn’t get cold until Uncle Ed. and John would know about it, and they would try to cut me out.” Knowing that they both would oppose his acquisition of the property, and that his mother would not consent to it without the advice of her brother, he artfully led her to believe that what he asked her to do had the sanction of his uncle. With much force she said in her testimony that, while he had not said anything dishonest to her that day, “ He did it; he said he saw his Uncle Ed., and that he and John were better friends than ever.” By not telling the whole truth and withholding from her what she most desired to know, the artifice and deception were practiced upon her.

But this proceeding was not to have the appellant declared a trustee, and the decree made is foreign to the relief prayed for. The bill is against the Standard Building and Loan Association as the principal defendant, and a decree is asked for against it that it be ordered and decreed to execute and deliver to the plaintiff, her heirs and assigns, agood and sufficient deed, clear of encumbrance, for the tract of land in controversy. There is no allegation of any kind against the appellant and no decree is asked for against him. The decree for specific performance against the association was refused, because the court found, on evidence justifying the findings, that there never was any parol contract for the sale of the land to the appellee made by the association, or by any person authorized to make a parol contract with her; that she was not living on the land at the time the alleged parol contract for the sale of the same to her was made; that she never took possession of the' same in pursuance of the alleged parol contract; that the constructive possession had by her prior to said alleged parol contract was in nowise changed by the same; that none of the purchase money was paid by her in pursuance of the said alleged contract, nor were any such improvements made upon the premises as could not be reasonably compensated in damages. The legal conclusions of the learned judge were that, even if there had been such a parol contract as was alleged by the plaintiff, it was within the statute of frauds, and neither she nor any of the heirs of Chrysostom Luther had any legal right to redeem the property in question. But, instead of dismissing .the bill, a decree not asked for, and which could not have been asked for under the allegations of the bill, was made against the appellant, adjudging him to be a trustee for the widow and heirs of Chrysostom Luther of the land in controversy, “ just as if said Chrysostom Luther had died seized of said land intestate, and the same had descended under the intestate laws.” No such question was raised by the bill and no such decree as was made was asked for. It was utterly foreign to the relief sought. In a proper proceeding the question of the appellant’s trusteeship of the property which he has purchased but to which he has not yet acquired the legal title, may be raised, and the relief which the court below would grant to the appellee may be awarded to her, if she wishes it.

The relief afforded by a decree in equity must conform to the case as made out by the pleadings as well as to the proofs. Every fact essential to entitle a plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proof of matters not alleged can be made a basis for equitable relief. Relief cannot be granted for matters not alleged: 16 Cyclopedia of Law and Procedure, 483. Neither allegations without proof nor proof without allegations, nor allegations and proof which do not substantially correspond, will entitle complainant to relief, unless the defect be remedied by amendment: 1 Daniel’s Ch. (6th ed.), 361, note. A complainant.can be afforded such relief only as he is entitled to under the allegations of the bill: Marshman v. Conklin, 21 N. J. Eq. 546. The order or decree of a court of chancery should conform to the prayer in the bill: Horton’s Appeal, 13 Pa. 67. A master who finds that there is nothing in the testimony to sustain a bill as it is filed, should report a decree dismissing it: Morio’s. Appeal, 4 Pennypacker, 398. Every averment necessary to entitle a plaintiff in equity to the relief sought must be contained in the stating part of the bill: Thompson’s Appeal, 126 Pa. 367; Pa. S. V. Railroad Co. v. P. & R. Railroad Co., 160 Pa. 277. Authorities need not be multiplied in support of the rule that the relief afforded by the decree must conform to the case as made out by the pleadings, and that it must be consistent with the relief prayed for. Applying this rule to the decree before us, it cannot be affirmed. The twenty-second, twenty-third, twenty-fourth and twenty-fifth assignments are sustained. The decree is reversed and the bill dismissed, the costs on this appeal and below to be paid by the appellee.


text:
    Luther, Appellant, v. Standard Building and Loan Association et al.

      Equity — Specific performance — Findings of fact — Review.
    Where an issue on a bill in equity for specific performance turns solely upon questions of fact, and these facts are found on sufficient evidence and without manifest error in favor of the defendant, a decree based thereon will not be disturbed by the appellate court.
    Argued April 17, 1906.
    June 27, 1906 :
    Appeal, No. 113, Jan. T., 1906, by plaintiff, from decree of C. P. Blair Co., No. 455, in equity, in case of Louisa Luther, widow of Chrysostom Luther, v. Standard Building and Loan Association et al.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for specific performance. Before Bell, P. J.
    For the facts see Luther v. Luther, ante, p. 1.

      Error assigned was in refusing to enter a decree of specific performance.

      E. II. FUeJc and W. I. Woodcock, with them H. O. Madden, for appellant.

      It. A. Henderson and Thomas H. Greevy, for appellees.
   Opinion by

Mr. Justice Brown,

Under the facts found by the court below, the decree prayed for by the appellant could not have been made; and as those facts had evidence to sustain them, they cannot be disturbed. The appeal is, therefore, dismissed, with costs to the appellees.


author: Me. Justice Potter,

text:
    White, Appellant, v. Trowbridge.

      Partnership — Good will — Transfer of interest — Restraint of trade.

    The mere transfer by one partner of his interest in the good will of the business to his copartners, does not preclude him from entering into a similar business in the same town, and prosecuting it in competition with the old firm of which he had been a member. The contract should expressly state that the retiring partner should not enter into the same business, if that is the intention of the parties.
    An agreement to retire from business and not to resume it again is in restraint of trade, and cannot rest upon mere inference.
    Good will is the favor which the management of a business has won from the public, and the probability that old customers will continue their patronage.

      Trade-mark — Name—Partnership—Labels.
    A retiring partner in the absence of an agreement to the contrary is not deprived of the right to use his own name in connection with the conduct of his business simply from the fact that his surname is a. portion of the trade-mark used by the copartnership of which he was formerly a member, and whose business has been continued by the other partners.
    In a trade-mark case a decree will not be entered in favor of the plaintiff where it appears that the trade-mark or labels used by the defendant are not so similar to those of plaintiff in appearance, or in the sound and connection of the words, as are likely to cause a person of ordinary intelligence using ordinary caution, in making purchases, to be misled.
    Argued April 25, 1906.
    Appeal, No. 292, Jan. T., 1905, by plaintiff, from decree of C. P. Crawford Co., No. 2, Nov. T., 1902, dismissing bill in equity in case of H. P. White and Carl Bender, trading as Trowbridge Chocolate Chip Company, v. W. S. Trowbridge.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Thomas, P. J., found the facts to be as follows :
    1. That for a period of two and one-half years and upwards, prior to January, 1900, the defendant, W. S. Trowbridge, was engaged in the city of Meadville in the manufacture of confectionery, consisting of thin oblong pieces of molasses candy coated with chocolate, and generally known as chocolate chips.
    2. That said defendant then claimed, and still claims, to have been tbe originator of this particular kind of confectionery, and adopted the name “ Trowbridge’s Chocolate Chips,” by which the same was known in the trade.
    8. That defendant, prior to said date, adopted as a trademark the words, “ Trowbridge’s Chocolate Velvet Chips,” and the representation of a bucket filled with chocolate chips, and caused the same to be registered.
    4. On January 22, 1900, the said defendant sold an undivided one-third in the business theretofore by him carried on, each to H. P. White and Carl Bender, and the said vendor and his vendees on the same day entered into a copartnership, under the firm name of “ Trowbridge Chocolate Chip Company,” and from that time until January 11, 1902, the said copartnership engaged in the manufacture of the said Trowbridge chocolate chips in the said city of Meadville.
    5. Shortly after the organization of the said copartnership, and upon complaint of a rival manufacturer of confectionery, the said copartnership dropped from the name or trade-mark of said chocolate chips the word “ velvet ” and substituted for said name or trade-mark, “ Trowbridge’s Chocolate Chips, the Original,” under which name and trade-mark they continued to manufacture said chocolate chips until the dissolution of said partnership.
    . 6. On January 11, 1902, the said copartnership was dissolved, the plaintiffs in the bill having purchased from defendant his interest therein, by written agreement, of which the following is a copy :
    “Memorandum of agreement made this 11th day of January, 1902, between Wm. S. Trowbridge of the first part and Harry P. White and Carl Bender of the second part:
    “ Whereas, the parties hereto entered into a partnership on the-day of January, 1900, for the manufacture and sale of confectionery, and especially for the manufacture of a quality of confectionery known by the trade-mark of ‘ Trowbridge Original Chocolate Chips,’ and have since said date been engaged in the manufacture and sale of such confectionery in Mead-ville, Pa., and,
    “ Whereas, the said Wm. S. Trowbridge has agreed to sell all his rights and interest in the said partnership and business,
    “ Now this agreement witnesseth, that the said Wm. S. Trowbridge hereby sells, assigns and transfers to Harry P. White and Carl Bender all the rights, title, interest, property and claim of him, the said Win. S. Trowbridge, to and in the said partnership business, together with the good will, rights, property, stock bills and accounts receivable, notes and credits, together with all other rights or property used in or connected with the said business and the prosecution thereof.
    “ In consideration whereof, the said Harry P. White and the said Carl Bender agree to pay to the said Wm. S. Trowbridge the sum of fifteen thousand dollars.”
    7. Subsequently to the dissolution of said copartnership and the sale of his interest therein by defendant, the plantiffs continued to carry on the same business under the same name and in the same place as was done prior to said sale and dissolution of the copartnership, and in the prosecution of said business have advertised extensively, and the said chocolate chips had, prior to said dissolution and has had subsequently thereto, a large and extensive sale, the said company now employing about 150 hands, and is manufacturing about 6,000 pounds thereof per day.
    8. That on June 11, 1902, plaintiffs caused to be registered by the commissioner of patents a print, the title of which is “ Trowbridge’s Chocolate Chips,” which said print has been by them continuously used as a trade-mark or advertisement on the pails or larger packages in which said confectionery has been packed and shipped.
    9. The plaintiff company packs or puts up for sale their chocolate chips in common stock candy pails or buckets of two sizes, one of which holds about twenty-five pounds and the other about ten pounds, and in paper or pasteboard boxes of convenient size to hold five, one, one-half and one-fourth pounds respectively. The pound boxes are dark brown in color, tied by two small white ribbons, and the dimensions are 10|-x2-|xl{-' inches ; the half-pound boxes are dark brown in color and the dimensions are 5fx2fxlJ inches ; and the quarter-pound boxes are inclosed in white wrappers, and the dimensions are 6|-x2f-xf-inches.
    10. Upon each “ chip ” manufactured by the plaintiff company is stamped upon one side the word “ Trowbridge.”
    11. Upon all of the larger packages put up by plaintiffs is placed a white label corresponding in appearance to the registered print, consisting of the word “ Trowbridge ” at the top thereof, in letters three-fonrths of an inch high, and of the words “ Chocolate Chips ” at the bottom thereof, one and one-fourth inches to one and three-fourths inches high, — varying with the size of the label, — all of a dark red color. In the center of said label is the picture of a punch bowl filled with chocolate chips; the coloring of the punch bowl is blue, and of the chips, a light chocolate. Above the punch bowl and between the same and the word “ Trowbridge ” is printed in blue letters, three-eighths of an inch high, within quotation marks and in oval form, the word “ Original.” Below the punch bowl and between the same and the words “ Chocolate Chips ” is printed in a straight line, in blue letters, one-eighth .inch high and within quotations, the words “ Name on every chip.”
    12. Upon the one-pound and the half-pound boxes is printed in gold, in heavy script type, slightly diagonal across the top of the box, the word “ Trowbridge’s,” and beneath said word and as a continuation thereof extends a heavy scroll or flourish in the same color, in which scroll is printed in small brown letters the words “ Name on every chip.” Below and someAvhat to.the right of the word “ Trowbridge’s ” is printed in gold and in heavy ornate letters, one-fourth inch high, the word “ chocolate ” on a slightly oval line, and immediately below said word and in similar type and the same color, is the word “ chips,” printed on a straight line. Above and somewhat to the left of the word “Trowbridge’s ” is a somewhat irregular circular gold background having thereon a small brown circle, three-fourths inch in diameter, in the center of which is a monogram consisting of the letters “ W. S. T.,” above wdiich in circular form is printed in small brown letters the word “ Meadville,” and below which in similar form and type the letters “ Penn. U. S. A.”
    13. Upon the white wrapper, inclosing the quarter-pound boxes, is found printed in large script type and beginning on the left and extending slightly diagonally across the top of the box the word “ Trowbridge’s; ” beneath said word, and commencing somewhat more than half way from its beginning, and parallel thereto, in similar type is the word “ Chocolate ; ” beneath Avhieh last-mentioned word, and commencing about half way from end to end thereof, parallel thereto, and in similar type, is the word “ chips ; ” beneath the word “ Trowbridge’s,” parallel thereto and commencing on a line with the beginning thereof, is printed in ornate letters, one-fourth inch high, the word “ Original.” At the upper right corner is printed in figures, one-half inch high, the number “ 10,” to the right of which is a letter “ c,” one-fourth inch high, crossed by a perpendicular mark. On both edges of said box, printed in Gothic type, one-fourth inch high, are the words, “ Name on every chip.” All of which printing is in gold. At each end of said box is placed a seal having a gold background and brown edges, within which is a small brown circle three-fourths of an inch in diameter, within which and at the top thereof, in small brown letters, is printed the word “ the,” on a straight line; beneath which in larger brown letters is printed the word “ original; ” beneath which, in small brown letters and parallel thereto is the word “ and,” and at the bottom in large brown letters and parallel with the brown circle, the word “ best.”
    14. On their bill and letter heads plaintiffs use a small design of the punch bowl filled with chips, above which and somewhat diagonal thereto, in heavy script type, with flourish or scroll beneath, is the word “ Trowbridge; ” to the right and somewhat below the end of said word is printed horizontally in Gothic type the words “ Chocolate Chip,” beneath which, in similar type and parallel thereto, is the abbreviation “ Co.” Above said punch bowl in small Gothic letters, and within quotation marks, are the words “ The Original.” Below said punch bowl in smaller type is found the words “ Name on every chip.” The whole being somewhat ornamented and displaying at each side of the punch bowl packages of chocolate chips, the coloring being in white and black.
    15. About the middle of September, 1902, the defendant, W. S. Trowbridge, began in the city of Meadville the manufacture of confectionery known as chocolate chips, and similar in form and appearance to the same kind of confectionery manufactured by plaintiff and numerous other persons or firms throughout the country.
    16. The chocolate chip manufactured by defendant is plain and has no printing or stamp impressed thereon.
    17. The said defendant is advertising and offering for sale his said confectionery and has solicited and is soliciting trade therefor generally, and has adopted and is using a stamp or mark on his labels, packages, bill and letter heads, hereinafter more fully described.
    18. The said defendant puts up his said confectionery in common or stock candy pails of a capacity of about ten and twenty-five pounds, respectively, and in common paper or pasteboard boxes or packages in quantities of five, one, one-half and one-fourth pounds. The pound boxes are white in color, and of the dimensions of 7x2f-x2-f inches; the half-pound boxes are white in color and of the dimensions of 5-|x2-|xl-|- inches; the quarter-pound boxes are inclosed in a wrapper of chocolate color, and the dimensions are 6|-x2-?,-x|inches.
    19. From two-thirds to three-fourths of the said chocolate chips sold by either plaintiffs or defendant is put up in candjr pails.
    20. The defendant uses upon his pails a white label, at the top of which is printed horizontally in heavy black Gothic letters about one-half inch high the words “ The Originator.” Somewhat below is a circle, five and one-half inches in diameter, above which and parallel thereto is printed in heavy black Gothic letters, five-eighths inch high, the name “ W. S. Trow-bridge,” which name is followed by a period; and below the said circle, in similar type and color, the words “Meadville, Pa.” Within and at the top of the said circle and parallel thereto, in heavy black Gothic letters, seven-eighths inch high, is the word “ Chocolate,” and at the bottom of said circle and parallel thereto, in the same type the word “ Chips.” Across the center of said circle is printed horizontally in heavy red script letters the word “ Twentieth,” and immediately below, parallel thereto and extending somewhat to the right thereof, in the same type and color the word “ Century.”
    21. The design used by defendant in his bill and letter heads, and probably on some smaller labels, advertisements, etc., is the same in language, form and colors as the label above described, being merely reduced in size.
    22. The pound and half-pound boxes used by defendant have printed somewhat diagonally across the tops in not very heavy script type the words “ Twentieth Century,” with a flourish extending from the capital “ C ” back beneath and parallel with the word “ Twentieth.” Preceding said words, on a line with the top of the small letters thereof, in small Gothic type is the word “ The.” Beneath the word “ century,” on a horizontal line is printed in inclined Gothic type about one-eighth inch high, the words “ Chocolate Chips,” and immediately beneath and parallel thereto is printed in somewhat smaller type the name “ W. S. Trowbridge.” To the left of said writing is the design of a griffin, holding a partly opened scroll, upon which is printed, in small inclined Gothic type the word “ Purity,” beneath which in the same type is the word “ Excellence.” All of said printing and stamping is the color of silver.
    23. The quarter-pound boxes used by defendant are wrapped in chocolate-colored paper, upon which is printed in rather large script type and diagonally across the top of the box, the words “ Twentieth Century,” beneath which, parallel thereto, and beginning somewhat to the right thereof and in the same type are the words “ Chocolate Chips.” Somewhat below is printed horizontally in Gothic type one-fourth inch high, the name “W. S. Trowbridge.” Above and to the left of the word “ Twentieth ” and within the flourish to the letter “ T ” is printed in 'ornate type, the word “ The,” and over the word “ Twentieth,” and parallel thereto, is found in figures, three-eighths inch high, the number “ 10,” followed by the letter “ c,” one-fourth inch high, through which extends a perpendicular line. To the left of said printing is the design of a griffin, holding a partly opened scroll, upon which in small inclined Gothic type is printed the word “Purity,” and beneath this and in the same type the word “ Excellence.” All of said printing and stamping is in the color of silver.
    24. As a means of advertisement, defendant has had prepared and used a window screen or poster about 30x10 inches, through the center of which horizontally appear the words “ Chocolate Chips,” each word beginning with a large bright red capitalC,” five and three-fourths inches high, shaded with dark green. The balance of the said words are printed in large black lower-case ornate type, two inches high, above and below which black letters are dark green lines and ornaments. Directly above said words are printed horizontally in heavy script type, about one inch high, in bright red, the words “Twentieth Century.” To the left of said words and on the same elevation as the tip of the capital “ C’s ” in black ornate letters, one inch high, is the word “ The,” beneath which in a wave line, in black ornate letters, one and one-fourth inches high, is the word “ Meadville,” and below the said last-mentioned word in the same type and color as the word “ The ” is printed horizontally, the word “ Chip.” At the right of said screen or poster and on the same elevation as the top of said capital “ C’s” are the black ornate letters, one and one-fourth inches high, “ W. S.,” with periods after each. Beneath said letters on a wave line and in letters of the same type and color the word “Trowbridge,” beneath which word in black ornate letters, one inch high, is printed horizontally the word “ Originator.”
    25. By correspondence with dealers and otherwise the defendant has held himself out as “ being the originator of the Chocolate Chips.”
    26. The trade-mark or labels used by defendant are not so similar to those of plaintiffs in appearance, or in the sound and connection of the words, as are likely to cause a person of ordinary intelligence, using ordinary caution, in making purchases to be misled.
    The court entered a decree dismissing the bill.

      Error assigned was decree of the court dismissing the bill.

      Thomas Roddy and Manley O. Brown, for appellant.
    The ownership of a trade-mark has in general been considered a right of property, and equity will protect that right from infringement. Proof of fraud is not required. The mere violation of the rights is sufficient to induce the exercise of the equity powers of the courts : Menendez v. Holt, 128 U. S. 514 (9 Sup. Ct. Repr. 143).
    The good will of a partnership is part of the property of the firm. Of this good will is the firm name. In a proper case the court of equity will perpetually enjoin such unlawful use of the name by the retiring partner.
    A surname may become impersonal when attached to articles of manufacture and becomes the name by which such article is known in the trade. In case of sale of the rights to manufacture the same pass also, but it does not pass as good will, but as trade-mark: Vonderbank v. Schmidt, 44 La. Ann. 264 (10 So. Repr. 616) ; Beach on Modern Eq. Juris, sec. 762; Russia Cement Co. v. LePage, 147 Mass. 206 (17 N. E. Repr. 304); Ayer v. Hall, 3 Brews. 509.
    June 27, 1906:
    If a trade-mark be imitated so closely as to deceive the public, its use will be enjoined : Colton v. Thomas, 2 Brews. 308; Witthaus v. Wallace, 2 W. N. C. 610; Shepp v. Jones, 35 W. N. C. 29 ; Parmer v. Harris, 60 Pa. 156 ; Colladay v. Baird, 4 Phila. 139; Pratt’s App., 117 Pa. 401; Putnam Nail Co. v. Dulaney, 140 Pa. 205.

      George W. Haskins, with him A. G. Richmond and John O. McClintock, for appellee.
    The sale of the good will does not involve any obligation on the vendor not to exercise the same trade. If the vendee of such good will desires to protect.himself from such a contingency, he should do it by an agreement: Palmer v. Graham, 1 Parsons’Select Equity Cases, 476; Rupp v. Over, 3 Brewster, 133 ; Fish Brothers Wagon Co. v. Titus G. Fish, 16 L. R. A. 453 ; Cottrell v. Babcock Printing Press Mfg. Co., 54 Conn. 122 (6 Atl. Repr. 791); Chittenden v. Witbeck, 50 Mich. 401 (15 N. W. Repr. 526); Williams v. Farrand, 14 L. R. A. 161; Bassett v. Percival, 87 Mass. 345; Hall’s App., 60 Pa. 458.
    It is not enough that there may be a possibility of deception. The offending label must be such that it is likely to deceive persons of ordinary intelligence: Brown v. Seidel, 153 Pa. 60; Heinz v. Lutz, 146 Pa. 592; Hoyt v. Hoyt, 143 Pa. 623; Howe Scale Co. v. Wychoff et al., 198 U. S. 118 (25 Sup. Ct. Repr. 609) ; Holzafel’s Co. v. Rahtjens’ Co., 183 U. S. 1 (22 Sup. Ct. Repr. 6) ; Brown Chemical Co. v. Meyer, 139 U. S. 540 (11 Sup. Ct. Repr. 625) ; Carmichel v. Latimer, 11 R. I. 395; Fish Bros. Wagon Co. v. Fish, 16 L. R. A. 453; Duryea v. Natl. Starch Mfg. Co., 79 Fed. Repr. 651.
   Opinion by

Me. Justice Potter,

Counsel for appellants have here advanced the proposition that by the mere transfer of his interest in the good will of the business, the defendant was precluded from entering into a similar business in the same town, and prosecuting it in competition with the old firm, of which he had been a member. The position is wholly untenable. “ Good will ” has been defined by Judge Cooley as the favor which the management of a business has won from the public, and the probability that old customers will continue their patronage: Chittenden v* Witbeck, 50 Mich. 401; and Lord Eldon in Cruttwell v. Lye, 17 Yes. Jr. 385, spoke of it as “ simply the probability that old customers will resort to the old place.” There is a very ample discussion of this question by the supreme court of Michigan, and a full citation of the authorities bearing on the point in Williams v. Farrand, reported in 14 L. R. A. 161. It is there said, “ the doctrine that a retiring partner who has conveyed his interest in an established business, whether the good will be included or not, cannot personally solicit the old customers of the firm, has no support in principle. A retiring partner conveys in addition to bis interest in the tangible effects, simply the advantage that an established business possesses over a new enterprise.”

In the present case the contract for the sale of defendant’s interest in the business was in writing, and we do not find in it anything which can be construed into an agreement by the defendant to refrain from engaging in a similar business, under his own name.

An agreement to retire from business, and not to resume it again, is in restraint of trade, and cannot rest upon mere inference : Hall’s Appeal, 60 Pa. 458. So long as the defendant does not attempt to sell his goods as those of the old firm, or represent that his business is a continuation of the old firm, he is at liberty to engage under his own name, honestly and in good faith, in the same line of business and in the same locality.

We think the learned judge of the court below was entirely correct in his statement of the third conclusion of law, in which he says, “ The defendant is not deprived of the right to use his own name in connection with the conduct of his business simply from the fact that his surname is a portion of the trade-mark used by the copartnership of which he was formerly a member, and whose business has been continued by plaintiffs.” And in the further comment made by him in overruling the exception to this finding, as follows: “ He has no right to use said name for the purpose of misleading the public or to induce persons to deal with him in the belief that they are dealing with or acquiring the product of the old firm, or its successors in business. He also has the same right to hold himself out as the person who invented or originated the kind of wares he offers for sale, subject to the same limitations.” And in this connection it appears that the court below found as a fact, upon evidence which seems to us sufficient, that the defendant had not in this respect infringed upon or violated the rights of the plaintiffs.

So too in deciding the remaining question in this case, as to whether the defendant has so imitated the trade-mark or labels of the plaintiffs as to interfere unfairly with their business, or deceive the public, the court below has applied a well-established rule, and has found that “ the trade-mark or labels used by defendant are not so similar to those of plaintiffs in appearance, or in the sound and connection of the words, as are likely to cause a person of ordinary intelligence, using ordinary caution, in making purchases to be misled.”

This finding is really the gist of the whole case, for if the action of the defendant has deceived or is likely to deceive purchasers, so that they have purchased or will probably accept the goods of the defendant under the mistaken notion that they are those of the plaintiffs, then the defendant should be enjoined from any such use of the labels. But measured by this well-established rule, it does not appear from the evidence, that the defendant has in any sense offended. A comparison of the labels of the respective parties shows such marked and striking differences that no one who has eyes to see with, and uses them, can fail to notice the differences. We cannot see that the similarity is sufficient to convey a false impression, or to mislead the ordinary purchaser. The labels of defendant distinctly refer to his own manufacture, and show that the goods are those of W. S. Trowbridge, and not those of the plaintiffs, the Trow-bridge Chocolate Chip Company. While both sets of labels are descriptive of the same article of manufacture, yet the label of plaintiffs bears upon its face a prominent and distinctive emblem, a large bowl filled to the brim with chocolate chips, while the corresponding label of defendant is entirely devoid of any emblem, but has instead the distinctive and arbitrary descriptive words “twentieth century.” The distinction between the labels intended for smaller packages is equally apparent.

In fact, tbe real difficulty in this case is that the plaintiffs have reason to fear, not that the public will be deceived, but that if the fact becomes known that the defendant is engaged in the same business the public will purposely purchase the goods made by him for the reason that he was and is the originator of the confection known as chocolate chips. In other words, what the plaintiffs really desire is protection from the business competition of the defendant, carried on openly and frankly by him under his own name. As we have already seen, this was something which they did not provide for under the terms of the written agreement when they purchased from him his interest in the business, and they cannot now be permitted indirectly to attain this end which they failed to stipulate expressly for in negotiating the purchase, and which presumably was not included in fixing the amount of the consideration. The learned judge of the court below has with great industry and accuracy examined and assembled the eases bearing upon the exact questions here in dispute, has drawn from them the legal principles upon which they rest, and has with precision applied those principles to the facts of this case.

We see no reason whatever to differ from any of the conclusions reached by him.

The exceptions are overruled, and the decree is affirmed.


author: Mr. Justice Stewart,

text:
    Dwyer, Appellant, v. Port Allegheny Borough.

      Negligence — Boroughs—Slippery sidewalk — Contributory negligence — Evidence — Nonsuit.
    In an action against a borough to recover damages for personal injuries it appeared that the plaintiff while walking upon a slippery sidewalk in a borough fell and sustained the injuries of which he complained. The evidence showed that the accident occurred at nighttime and that the sidewalk through its whole length was in a slippery and dangerous condition for pedestrians. Of this fact the plaintiff was ignorant, as he had not previously passed along it during the winter. He, however, did know that the street itself furnished a safe way, and that the pavement on the other side was safe, and was the usual thoroughfare. The plaintiff’s testimony indicated that he realized before it was too late to retrace his steps or change his course, that danger confronted him, and that to advance further was perilous. Held, that a nonsuit was properly entered.

      Argued April 30, 1906.
    June 27, 1906 :
    Appeal, No. 77, Jan. T., 1906, by plaintiff, from order of C. P.. McKean Co., Oct. T., 1904, No. 96, refusing to take off nonsuit in case of Michael J. Dwyer v. Port Allegheny Borough.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Bouton, P. J.
    At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      John G. Johnson, with him Sheridan Gorton and Thomas F. Richmond, for appellant.

      F. D. Gallup, of Gallup & Bouton, with him D. S. Helmer, borough solicitor, Fred S. Lewis and S. W. Smith, for appellee.
   Opinion by

Mr. Justice Stewart,

The case as exhibited on behalf of the plaintiff showed that the injury for which compensation is demanded was sustained under tjie following circumstances :

In the late afternoon or early evening of February 17,1904, while walking in the borough of Port Allegheny, the plaintiff slipped and fell in consequence of the icy condition of the pavement, his fall resulting in a broken limb. At the point where the accident happened, and for quite a distance on either side, the pavement, in consequence of an accumulation of ice thereon, was, and had been for some time, in a condition that made it hazardous for pedestrians to attempt. The plaintiff, however, had not previously during the winter passed along it, and was ignorant of its condition. It was easy for one passing along that street to avoid this particular place of danger. The street itself furnished a safe way, and was accessible from the pavement, while-on the other side of the street there was a wide, much-traveled and reasonably safe pavement, also easily accessible. Plaintiff was aware of this fact, since he had used the pavement on the other side during the afternoon, and had crossed the street several times. The pavement on the side where the plaintiff fell was not used to the extent that the pavement on the other side was ; it was along vacant lots and lawns, while that on the opposite side was the business thoroughfare.

The court below being of opinion that the law charged plaintiff with negligence upon his own showing of the circumstances, directed a nonsuit. We have nothing in the case to consider but this action of the court. This makes necessary a somewhat more detailed statement of the evidence, in connection with the inquiry, which obviously must determine the correctness of the court’s action.

The plaintiff entered upon the dangerous piece of pavement when he turned from Maple street upon Main. Prom that point to where he fell, a distance of eight rods, the pavement, without break, was dangerous to pedestrians. A snow plow had been used there some time before, with the result that bordering a narrow path, itself covered with ice, there were ridges of snow now turned to ice, with sides inclining the entire length. The plaintiff’s own testimony is conclusive of the fact that the pavement was in a dangerous condition throughout its entire length traversed by him, worse in some places than others, but practically the same from the midway point in the Dalrymple lot to the place where he fell. The witness Cook, who was more particularly inquired of with respect to this matter, says, speaking of the character of the ridges, that the pavement was about in the same condition all the way through. The danger was not concealed by the snow, but was apparent to anyone exercising ordinary observation. The plaintiff, says : “ When I first started on the walk I didn’t know the condition of it; if I did, I would be thought a fool if I hadn’t taken the other; it was dark; I started to go home; I expected this walk like the others to get better after awhile; if I hadn’t thought the walk would get better up aways, I would have turned back any time.” It is not apparent just what the witness meant by saying that he didn’t know the condition of the walk when he first started on it; whether he meant the instant he entered upon it, or after he had followed it some distance is not clear; but it is not material, since the language subsequently used admits of no other explanation than that he did realize before it was too late to retrace his steps or change his course, that danger confronted him, and to advance further was perilous. That it was dusk, and the danger therefore not apparent, is his excuse for entering upon the street at all; but despite this difficulty he somehow or other soon became aware of the actual situation, because he says he would have turned back but for the expectation that the condition of the pavement would improve as he advanced. Instead of improving it grew worse, according to his own testimony, and yet he persisted. Upon his own admission he voluntarily attempted a known dangerous way which could, without inconvenience to himself, have been, avoided as he admitted. This admission was not incautious or accidental; it not only accords with the other testimony of the plaintiff, but was subsequently repeated by him. It was necessarily fatal to his right to recover, since it discloses a clear case of contributory negligence on his part. Citation of authorities in support of the principle governing the case would be superfluous. The motion for a compulsory nonsuit necessarily prevailed.

Judgment affirmed.


author: Mr. Justice Potter,

text:
    Lenhart v. Cambria County, Appellant.

      Sheriffs — Compensation—Statutes—Repeal—Acts of April 2, 1868, P. L. 3, and July 11, 1901, P. L. 663.
    The Act of July 11, 1901, P. L. 663, entitled “An Act to regulate and establish the fees to be charged by sheriffs in this commonwealth, and to provide for the taxation and collection of the same,” supersedes and repeals the fee bill of April 2, 1868, P. L. 3.
    Under the Act of July 11, 1901, P. L. 663, the sheriff is entitled to a fee of ten cents per mile from the place where he receives convicts and lunatics, for the distance necessarily traveled to the places of their delivery, and for his return to his starting point, if his return to such point is a necessary portion of his official trip.
    Where the sheriff has several commitments placed in his hands for several persons, at the same time, he is entitled to mileage on each commitment.
    The six cents mileage for each prisoner is direct and not circular mileage.
    The additional sum allowed by the act of July 11, 1901, to the sheriff for “necessary expenses,” is intended to cover reasonable help and expenses in transporting and delivering the convicts and lunatics to the penitentiary and asylum. If there is any dispute as to whether the charges for help and expenses are reasonable, the question is for the jury and not for the court.
    There is no authority in the act of 1901 to enable the sheriff to make a charge of $4.00 per day for deputies employed in the transportation of prisoners.
    Argupd May 1, 1906.
    June 27, 1906 :
    Appeal, No. 68, Oct. T., 1906, by defendant, from judgment of Superior Ct., April T., 1905, No. 179, reversing judgment of C. P. Cambria Co., June T., 1904, No. 410, on verdict for plaintiff in case of Samuel Len-hart v. Cambria County.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from the Superior Court.
    The facts appear by the opinion of the Supreme Court and by the report in 29 Pa. Superior Ct. 350.

      JError assigned was the judgment of the Superior Court.

      William Davis, for appellant.

      P. J. Little, with him M. D. Kittell, for appellee.
   Opinion by

Mr. Justice Potter,

Plaintiff’s claim in this case was for removing certain prisoners, in pursuance of sentences and orders of the court, from the jail of Cambria county to the Western Penitentiary, the Dixmont Insane Asylum, the Polk Institute and the Hunting-don Reformatory, respectively. For these services he claimed fees under the Act of July 11,1901, P. L. 663, as follows: six cents per mile for each mile actually traveled by each prisoner ; ten cents per mile circular for each mile actually traveled or necessary to be traveled by plaintiff himself in case each sentence were separately executed, and for his assistants $4.00 each per day, three cents per mile circular for each mile traveled, and actual expenses necessary for such help.

Defendant contended (1) that the fees of the sheriff for the services upon which his claim was based, were to be determined,, not by the act of 1901, but by the Act of April 2, 1868, P. L. 3; and (2) if the act of 1901 is to govern, then the sheriff can claim mileage upon only one of several cotemporaneous commitments, and cannot claim $4.00 per day each of his deputies, as charged by him.

The Superior Court held that “ the act of 1901 is so in conflict with the act of 1868, that the latter must fall as to the questions raised in this suit,” and therefore the fees were to be determined by the act of 1901. Also that the sheriff was entitled to charge his own mileage for each mile circular traveled by him, at the rate of ten cents per mile, and to charge this rate upon each commitment, whether cotemporaneous or not, and also to charge for reasonable help and expens.es in transporting and delivering convicts and lunatics to the penitentiary, asylum, etc. It was held, however, that it was a question for the jury as to what were reasonable help and expenses, and because this question was taken from the jury by the trial judge, the judgment was reversed and a new venire awarded. The decision of the Superior Court is amply buttressed by the reasoning of the opinion and the authorities therein cited, and we can add but little thereto. We are clear that the earlier act is inconsistent with the later one, and as the act of 1868 was a general law, it was evidently intended that its provisions should be repealed by the act of 1901. The latter statute fixes the fees “ for executing any process, warrant, capias, attachment, decree, sentence or order of court, where the defendant’s body is to be taken into custody.” This language is broad enough to cover the execution of a sentence committing a convict to the penitentiary or reformatory, and of an order committing a lunatic or feeble-minded person to an asylum. But we do not find any provision in the act of 1901 authorizing the sheriff to make a charge of • $4.00 per day for deputies used in the transportation of prisoners. Clearly there can be no charge of this character unless the law expressly authorizes it. The act of 1868 did have such a provision, but it was not retained in the act of 1901.

In support of the contention that the legislature, by the act of 1901, did not intend to repeal or supersede the provisions of the act of 1868 in regard to the removal of lunatics and convicts, defendant offered evidence of certain proceedings in the legislature preliminary to the passage of the former act, and this evidence was admitted by the court below. Such evidence was clearly inadmissible to show the legislative intent, under Bank of Penna. v. Com., 19 Pa. 144, and Cumberland County v. Boyd, 113 Pa. 52, cited by the Superior Court. See also Southwark Bank v. Com., 26 Pa. 446, where Chief Justice Lewis, said (p. 450) : “ The (legislative) journals are not evidence of the meaning of a statute, because this must be ascertained from the language of the act itself, and the facts connected with the subject on which it is to operate; ” and Com. v. Mathues, 210 Pa. 372 (392).

Endlich on Interp. Stat. sec. 30, p. 41, considering the English authorities, says: “ It is unquestionably a rule that what may be called the parliamentary history of an enactment is ‘wisely inadmissible’ to explain its meaning. Its language can be regarded only as the language of the three states of the realm, and the meaning attached to it by its framers or by members of either house of parliament cannot control the construction of it.”

The question of whether the sheriff was entitled to collect for mileage circular or direct, is no longer open for argument. It was expressly decided in Peeling v. York County, 212 Pa. 245, cited by the Superior Court, where our Brother Elkin pointed out that the plain meaning of the act of 1901 is to authorize a charge for “ miles circular.”

With regard to cotemporaneous writs, the allowance under the terms of the act is “ for traveling expenses or mileage, in serving or executing any of the writs, rules, orders, decrees, processes, or performing any of the duties or services herein specified, and intended so to be or authorized by law, the sheriff shall be entitled to receive and have taxed as costs ten cents a mile, for each mile actually traveled and necessary, the same to be allowed on each separate writ, rule, order, decree, process or service performed: Provided, that he shall not receive more than one mileage, where the plaintiff and defendant, or plaintiffs and defendants, in two or more cotemporaneous writs are the same.”

The plain import of this language is to give the sheriff mileage for executing all cotemporaneous writs or orders of the court, civil or criminal, unless where both plaintiffs and defendants are the same; in such case one charge for mileage only, is allowed. We see no room for distinction under the law, between orders issued in criminal and civil cases. It does seem to be an abuse, to permit tbe sheriff to collect from the same party, the county, duplicate charges for mileage, in cases where a number of writs or orders of court are placed in his hands, to be executed at the same time and by a single trip. But the language of the act bears no other construction, and the remedy must, therefore, be applied by the legislature and not by the courts.

As the case goes back to have the jury determine what was a reasonable allowance for help and expenses in transporting prisoners, it should be borne in mind that allowance for extra' help is only to be made in case of actual necessity. Ordinarily there can be no reason why a sheriff or a deputy cannot take several prisoners to their destination at the same time.

With the modification herein indicated, as to the per diem charge for deputies, the judgment of the Superior Court is affirmed.


text:
    Veit, Appellant, v. Class and Nachod Brewing Company.

      Negligence — Explosion in brewery — Evidence—Contributory negligence— Previous act.

    In an action against a brewing company to recover damages for death of plaintiff’s husband resulting from an explosion caused by some unknown person tampering with the steam appliances of the brewery, it is reversible error for the court to admit evidence to the effect that the deceased himself had on a previous occasion tampered with the steam appliances for the purpose of hastening his work in filling beer barrels, where there is no evidence in the case whatever to connect the deceased with the act which was the immediate cause of the explosion.
    It is an established rule applicable alike to civil and criminal inquiries that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person.
    Argued May 1, 1906.
    Appeal, No. 82, Jan. T., 1906, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1903, No. 2,615, on verdict for defendant in case of Katherine Veit v. The Class and Nachod Brewing Co.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.

      Trespass to recover damages for death-of plaintiff’s husband. Before Bbégy, J.
    At the trial Albert Schlayer, chief engineer of the defendant, testified that immediately after the explosion which killed the deceased, he found that the regulator on the steam pump had been plugged with a large nail, that the safety valve had been tied down with a rope, and that extra weight had been placed on the lever. He also testified that the deceased was head cellar man employed in pumping beer. Under objection and exception the witness was permitted to testify as follows :

      “ Q. Had you ever given him any instructions as to the use of that pump in his branch of the business ? A. I warned him what could happen to him if he did certain things. Q. Tell me what you said to him and what took place? A. I warned him that if he ever put that plug in it would kill somebody.” Objected to. Objection overruled.
    “ Q. Go on ? A. I answered it. I warned him, having caught him putting this plug in on previous times twice. Q. When was the last time ? A. Some time previous to the accident. Q. A few days? A. No; longer than that; it must have been a month or two. Q. What did he say? A. Well, he said he was in a hurry and wanted to get done. I told him that if it occurred a second time I would have- him discharged. Just then Mr. Class happened to come along and heard the conversation. I told it to him, and Mr. Class — . Q. What Mr. Class? A. Mr. Julius Class, and he also told him if he did anything of that kind again he would discharge him.”
    Objected to. Objection overruled. Exception to plaintiff.
    “ Q. On that occasion how did he manipulate the regulator? A. The same way as I found it the day of the accident. By inserting this plug and putting the regulator out of action. Q. Did you take it out or did he by your orders ? A. I took it out. Q. Then you addressed this remonstrance to him ? A. I did. This is the second time. Q. On the former occasion you also found he had plugged it? A. I did. I saw him do it; I saw him put it in. Q. And you had remonstrated with him at that time ? A. I did certainly; very strongly, too. Q. The last time you said that if it happened again he would be discharged? A. I did.”
    Yerdict and judgment for defendant. Plaintiff appealed,

      June 27, 1906 :

      Error assigned was ruling on evidence as above, quoting the bill of exceptions.

      John M. Vanderslice, with him Clarence Vanderslice, for appellant.
    In an action to recover damages for personal injuries, when the defendant sets up as a defense the contributory negligence of the plaintiff-, evidence that on a previous occasion plaintiff was guilty of an act similar to the alleged act of contributory negligence, is inadmissible : Baker v. Irish, 172 Pa. 528.

      W. W. Smithers, of Smithers & Lank, for appellee.
    The evidence was properly admitted: Woeckner v. Motor Co., 182 Pa. 182; Trego v. Lewis, 58 Pa. 463; Penna. R. R. Co. v. Eby, 107 Pa. 166; Stafford v. Henry, 51 Pa. 514; Pratt v. Jewelry Co., 69 Pa. 53.
   Opinion by

Mr. Justice Stewart,

The immediate cause of the explosion which resulted in the death of the plaintiff’s husband is not obscure. The steam gauge, just before the explosion occurred, registered a pressure in excess of twenty-five pounds, whereas the maximum, of safety was from sixteen to eighteen pounds. This could not have occurred had the governor and safety valve been in working order. An examination made within a few - minutes after the explosion, showed that the regulator on the steam pump had been plugged with a large wrought-iron nail, that extra weights had been placed on the lever, and that the safety.valve on the tank in the cold-storage room was tied down with a rope. That this was the work of a designing mind is beyond question. The evidence admits of conjecture, but nothing more, as to the purpose back of it. While it does not necessarily result from the fact that the appliances to the steam machinery were found in this condition fifteen or twenty minutes after the explosion, and after a number of persons had been admitted to the room, that they were in the same condition when the explosion occurred, yet the evidence on this point was strongly persuasive of the fact, and its admission was not open to objection. Assuming this to be the true explanation of the explosion, where did the responsibility rest? The contention on the part of the plaintiff was that, while it was chargeable in the first instance to the negligence of the defendant’s night engineer, whose duty it was to observe the state of the gauge and keep the pressure within the limits of safety, the responsibility rests on the defendant because — and the evidence on this point was amply sufficient to establish a prima facie case — the night engineer in charge was a man given to habits of intoxication, a circumstance that was known or should have been known to the defendant, and that he was in point of fact under the influence of liquor during the night of the accident, to an extent that made him incompetent for the work assigned him. The effort on the part of the defense was not only to meet and overcome the testimony of the plaintiff with respect to these matters, but to refer the interference with the appliances to the steam machinery, directly to the plaintiff’s husband who was killed. It is in connection with the latter effort that we have this appeal.

Of course, if it was plaintiff’s husband who, on his own responsibility and for his own purposes, disarranged the machinery in a way that resulted in the explosion, no liability could attach to the defendant, however much the incompetency or negligence of the night engineer may have contributed. As a distinct fact in the case the jury were allowed to pass upon the question whether Veit did or did not tamper with the machinery in the way indicated. The finding was for the defendant generally, but inasmuch as several questions of fact were submitted, either one of which being found for the defendant would have determined the verdict as rendered, we cannot know what the jury’s finding was with respect to this particular inquiry. It may have been for all we know, the determining one, and it therefore becomes important to inquire as to the basis for the submission.

Veit was engaged in filling kegs with beer from the vats for the morning delivery. The time required for this work depended to some extent upon the air pressure in the vats; the greater the air pressure the more rapidly could the kegs be filled. A witness for the defendant testified that Veit had been discovered on several occasions, the most recent being about a month before the accident, interfering with the safety valve on the air pump; and that he had given as his reason for so doing that it enabled him to get through with his work and return to his home at an earlier hour than he otherwise could; that he had been threatened with discharge if he repeated the interference, and had been cautioned that such interference might result in loss of life. This evidence was admitted under objection, and its admission is assigned for error.

Had there been any evidential fact connecting Veit with the explosion, this testimony would have been competent as showing the motive, as a supporting circumstance; but there was absolutely none. He was not shown to have said or done anything that connected him in any way with the condition of the machinery that occasioned the explosion, nor was there a single circumstance pointing in this direction. The jury were allowed to infer that his was the hand that plugged the governor and tied down the valve, solely because of his previous conduct as testified to. Clearly this evidence was insufficient to warrant an inference that the interference was Veit’s ; and when offered as a distinct piece of evidence, unaccompanied by any offer to show any other implicating circumstance, it ought to have been rejected. It is an established rule, applicable alike to civil and criminal inquiries, that the commission of the act charged cannot be proved by showing a like act to have been committed by the same person. The rule is thus stated in Stephen’s Digest of the Law of Evidence, Article 10: “ The fact which rendered the existence or nonexistence of any fact in issue probable by reason of its general resemblance thereto, and not by reason of its being connected therewith, is deemed not to be relevant to such fact.” A fuller statement of the rule is to be found in 1 Wigmore on Evidence, page 230 : “ Where the doing of the act is the proposition to be proved, there can never be a direct inference from an act or former conduct to the act charged; there must always be a double step or inference of some sort, a tertium quid. In other words, it cannot be argued ‘Because A did an act X last year, therefore he probably did the act X as now charged. Humanity being infinitely varied, there is no adequate probative connection between the two. A may do the act once, but may never do it again; and not only he may not do it again, but it is in no degree probable that he will do it again. The conceivable contingencies that may' intervene are too numerous.’ . . . This principle has long been accepted in our law. ‘ That a doing of one act is in itself no evidence that the same or a like act was again done by the same person,’ has been so often judicially repeated that it is commonplace.” In 17 Cyc. of Law and Procedure, page 279, .the same rule is stated in different terms. “ Among inferences which, except under certain conditions, the law will not permit to be drawn, is that the person has done a certain act because he has done a similar act at another time. And the rule has repeatedly been asserted by the courts, and has been applied equally to civil and criminal cases.” The application of this rule in our own cases has been frequent. It is necessary to refer to but a single one. In Baker v. Irish, 172 Pa. 528, the effort was to show that the plaintiff in the action, who had been injured in an elevator, and was suing for damages, had made a practice of' jumping from the elevator while in motion. Rejection of the evidence was assigned for error. We quote from the opinion of Mr. Justice Dean: “ There was no error in the ruling; what Baker had done before would warrant no-inference, or one so remote, that he had done the same on the day of the accident, that the evidence was inadmissible. Says Wharton’s Law of Evidence, sec. 40 and notes: ‘ Ordinarily, when a party is sued for damages, flowing from negligence imputed to him, it is irrelevant to prove against him other disconnected -though similar negligent acts. . . . . So, where the question in a suit against a railway company is whether a driver on a particular occasion was negligent, it is irrelevant to prove that he had been negligent on other occasions.’ The same rule applies where the defense is that the injury was caused by plaintiff’s own negligence. Men do not usually risk life and limb without motive, and the fact that a man has done so once or oftener, does not warrant the induction ‘ that he did so on the particular occasion in controversy.’ ”

It was error to admit the evidence. The second assignment of error is sustained: the judgment is reversed and a venire facias de novo awarded.


author: Mr. Justice Elkin,

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    Green v. Washington Oil Company, Appellant.

      Negligence — Master and servant — Vice principal — Fellow servant.

    Where an oil company establishes a boiler repair works as a distinct branch of its business, and intrusts the sole charge of it to a superintendent, who hires and discharges workmen, and gives orders about the work to be done and repairs to be made, the superintendent is a vice principal of the company, and not a fellow servant of the workmen employed in the repair shop.
    In an action against an oil company by one of its workmen to recover damages for personal injuries sustained by the explosion of a boiler under a testing process, it appeared that the boiler had been repaired in a repair shop of the defendant, and that after having been removed from the shop it had exploded while being tested. A witness for the plaintiff testified that before the boiler left the shop he directed the attention of the superintendent, who was the vice principal of the company, to the unsafe and dangerous condition of the crown sheet and stay bolts of the boiler. The superintendent replied that he thought them all right. This testimony was uncontradicted. There was evidence that during the test the pressure against the crown sheet caused the stay bolts to give way, and the explosion occurred as a result. There was no evidence that the plaintiff had any knowledge of the dangerous or defective condition of the boiler. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.
    Argued Oct. 20, 1905.
    Rearg’ued May 2, 1906. Appeal, No. 55, Oct. T., 1905, by defendant, from judgment of C. P. Washington Co., May T., 1904, No. 16, on verdict for plaintiff in case of George H. Green v. Washington Oil Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ., on reargument.
    Affirmed.
    Trespass to recover damages for personal injuries. Before McIlvaine, P. J.
    The facts relating to the accident are stated in the opinion of the Supreme Court.
    Verdict for plaintiff for $3,000, subject to the following questions of law reserved:
    1. Under the testimony in this case, was Daniel Varner a co-employee of Frank H. Green, the deceased son of the plaintiff, so that the defendant company would not be liable for his negligence in repairing or testing the boiler that was blown up and on which he and the said Frank H. Green were working at the time of the explosion? And should the jury have been so instructed ?
    2. Is there any testimony in this case to support a verdict in favor of the plaintiff that should be submitted to the consideration of the jury ?
    The court subsequently entered judgment for the plaintiff on the verdict.

      Error assigned among others was in the refusing judgment for defendant non obstante veredicto.

      J. Mc F. Carpenter, with him David Sterrett and R. W. Cummins, for appellant.
    There being no direct proof of the cause of an accident, it is error to submit the case to the jury on the mere assumption that the alleged defective machinery was so repaired under the supervision of defendant’s general superintendent that it would not withstand the pressure to which it was subjected: Alexander v. Water Company, 201 Pa. 252; Hall v. Simpson, 203 Pa. 146.
    It is not permissible to guess at the cause of an injury and assume it is something for which defendant was responsible: Reese v. Clark, 146 Pa. 465.
    In an action by a servant against the master for furnishing a defective machine, the cause of the accident must be clearly shown: Hawthorne v. Penna. Salt Company, 10 Pa. C. C. Rep. 77.
    The burden of proof is on the plaintiff to establish negligence. It is not sufficient to show that an accident happened through the breaking of materials: Zahniser v. Torpedo Company, 190 Pa. 350; Wojciechowski v. Refining Company, 177 Pa. 57.
    There can be no recovery unless the plaintiff prove by affirmative evidence that the cause of the explosion was one for which defendant was liable : Snodgrass v. Carnegie Steel Company, 173 Pa. 228; Shafer v. Lacock, 168 Pa. 497; Titus v. Bradford, etc., R. R. Co., 136 Pa. 618; Kilbride v. Carbon Dioxide, etc., Co., 201 Pa. 552.
    Varner was a fellow servant of plaintiff: Casey v. Paving Co., 198 Pa. 348 ; Ricks v. Flynn, 196 Pa. 263 ; Prevost v. Ice, etc., Co., 185 Pa. 617 ; Ross v. Walker, 139 Pa. 42.

      June 27, 1906:

      R. W. Irwin, with him L. R. Boyd and A. T. Morgan, for appellee.
   ■ Opinion by

Mr. Justice Elkin,

The defendant corporation maintains a shop or works for the repair of engines and boilers used in the development and operation of its oil territory. After a certain boiler had been repaired in the shop, it was set up at the customary place outside, for the purpose of having it tested. On the day of the accident, while being subjected to steam pressure, Daniel Varner and Frank H. Green, son of appellee, were working in and about the boiler, caulking, tightening bolt heads and making a test of the same. While thus engaged the boiler exploded, causing injuries to both men from which death resulted. The plaintiff seeks to recover damages for the death of his son because he has been deprived of his assistance, maintenance, support and comfort, by the alleged negligence of the defendant.

The theory relied upon by the appellee to justify a recovery is that Varner was a vice principal of the defendant, and as such it was his duty to see that proper repairs were made to the boiler before leaving the shop, so that it would be in a safe condition to withstand steam pressure when tested. It is asserted that he failed in the performance of this duty, inasmuch as, although notified of the dangerous and unsafe condition of the boiler before testing, he did not make the necessary repairs, and as a result of this failure of duty the explosion occurred.

The learnéd counsel for appellant contended in the court below and argues here, that there can be no recovery because Varner was a fellow workman and not a vice principal; and that the evidence does not disclose any negligence for which the defendant is answerable. The assignments of error relate to and depend upon two fundamental and controlling questions of' law and fact, to wit:

1. Was Daniel Varner a vice principal of the defendant company?

2. Was the proximate cause of the explosion the negligence of the vice principal in not making, or causing to be made, the necessary repairs to insure the safety of the boiler while testing?

In order to sustain the contention that Varner was a vice principal it was necessary to show that the repair shop was a distinct branch of the defendant’s business ; that he not only had a general supervision over the men, but had entire control of the works; and that defendant did not exercise any discretion over or oversight about the works except through him as its agent and representative. This is the rule of law as applied to the facts of this case : Mullan v. Steamship Company, 78 Pa. 25; N. Y., etc., Railroad Company v. Bell, 112 Pa. 400; Prevost v. Citizens’ Ice, etc., Company, 185 Pa. 617; Ricks v. Flynn, 196 Pa. 263.

The plaintiff met the burden under the rule by producing four witnesses who had worked in the shop and whose testimony showed or tended to show, that the defendant operated a boiler repair works located near Taylorstown Station; that these works were in the sole charge of Varner, who hired and discharged workmen, gave orders about the work to be done and repairs to be made, and that no other person had charge of the work in and about the repair shop. The defendant did not offer any testimony on this branch of the case. The learned trial judge held that under the plaintiff’s testimony the question of Varner’s being a vice principal was for the jury to determine. In this we see no error. This testimony, if believed, made a prima facie case and warranted the jury in finding as a fact that Varner was a vice principal under the rule of law as above stated. It certainly was sufficient to require some explanation or answer by the defendant if the facts as shown by the testimony were not true. The defendant knew, and could have readily shown, whether the repair shop was a distinct branch of its business; whether Varner had general supervision and entire control of it; and whether no discretion or oversight was exercised by the company except through him. It chose to remain silent and rest its contention in this respect on the testimony produced by the plaintiff. Thus the record stood when the learned court below -was asked to say as a matter of law that Varner was not a vice principal but a foreman and fellow workman for whose negligence the defendant would not be liable. Under the testimony the question was for the jury where the court left it.

The second question to be considered is whether there was sufficient evidence of negligence on the part of the vice prineipal to make the defendant answerable for the injuries about which complaint is made. The act of negligence upon which the plaintiff bases his right to recover damages is that Varner did not make, or cause to be made, the necessary repairs to the boiler before leaving the shop, to make it reasonably safe before testing it with steam pressure. In this connection plaintiff called William Reese, who testified that while repairs were being made by cutting the bottom off the boiler, he directed Varner’s attention to the unsafe and dangerous condition of the crown sheet and stay bolts which supported it. The witness stated that the heads of the stay bolts on the inside were nearly pulled off and that the crown sheet was eaten outside. At the time his attention was called to the defective condition of the crown sheet and stay bolts Varner remarked that he thought them all right. This testimony is uncontradicted and must be accepted as true for the purposes of this case. It is sufficient to affect Varner with notice of the alleged dangerous and defective condition of the boiler before it was tested. We must now consider whether there was evidence from which the jury could draw a reasonable inference that the explosion resulted from the defective condition of the boiler about which Varner had been notified. The plaintiff produced several witnesses whose testimony showed, or tended to show, that the pressure against the crown sheet caused the stay bolts to give way and the explosion occurred as a result. The testimony of these witnesses shows that the crown sheet was burnt and eaten, the stay bolts drawn and the flues honeycombed. It was sufficient to warrant the jury in finding as a fact that these defective conditions were the proximate cause of the explosion. It must be conceded that if the accident had occurred in the shop while the boiler was being repaired, as a result of defects therein which the employee was repairing, there could be no recovery in this case, because the general rule which requires an employer to furnish machinery and appliances reasonably safe for the use intended, has no application to the safety and condition of the thing the servant is employed to repair: Murphy v. Railroad Company, 88 N. Y. 146; Bryant v. Railway Company, 66 Iowa, 305; Howland v. Railway Company, 54 Wisconsin, 226 (11 N. W. Repr. 529); Brick v. Railroad Co., 98 N. Y. 211. The accident did not occur, however, while repairs were being made to tbe boiler. The repairs had been finished under the direction and supervision of Varner, and the boiler had been sent outside for the purpose of testing it. It must therefore be assumed that the employer considered the boiler safe for testing purposes, although prior to that time Varner’s attention had been called to tbe unsafe and defective condition of the crown sheet and stay bolts. He was given notice of the alleged defective condition of the boiler before being subjected to steam pressure. In the absence of testimony showing that Green had any knowledge of its dangerous or defective condition, he had a right to rely on the general rule that when the boiler came from the repair shop it had been properly repaired and was reasonably safe for testing purposes. If the appellant knew of the alleged defective condition and the appellee did not, we cannot say as a question of law that there was no evidence of negligence to submit to the jury.

It is true defendant set up another theory as to the cause of the accident and vigorously denied that Varner was a vice principal. This contention, however, depended upon the facts, and it was for the jury to determine the controverted questions of fact.

We have examined with care the able and well-considered brief of the learned counsel for appellant, but have „not been convinced that it was the duty of the court to give binding instructions for defendant. It was a ease for the jury on the controlling questions involved, and the charge as a whole was fair and adequate.

Judgment affirmed.