text:
    Catanzaro, Appellant, v. Pennsylvania Railroad Company.

      Common carriers — Carriers—Railroads—Contracts for freight — Practice, C. P. — Nonsuit — Evidence — Admission of papers — Cross-examination.

    1. In an action against a railroad company to recover damages in connection with the carriage of freight, where the one question of fact was whether plaintiff’s contract for transportation was with the defendant company, or with the initial carrier, and where from the testimony offered by plaintiff a parol contract with the defendant could easily be derived, the action of the trial judge in granting a nonsuit constitutes reversible error, if the nonsuit is based upon the identification by plaintiff’s chief witness on cross-examination of certain shipping orders and shipping receipts relied upon as a defense, and admitted in evidence, under objection by plaintiff “as part of the witness’s cross-examination.”
    2. In such a case, the shipping orders and receipts constituted a defense essentially substantive in character, and could properly be introduced only after the defendant’s case had been opened to the jury; and even if they were then introduced the ease would still be for the jury if there were a question in the light of all the evidence, whether the shipping orders and receipts had superseded the oral contract which the plaintiff had offered testimony to prove.

      Carrier — Common carrier — Railroad companies — Initial carrier— Connecting carrier — Forwarder—Contract.
    3. If a railroad company having received frieght to be carried beyond its line, may make a connecting company its agent to carry to the place of final delivery, no reason is apparent why such company may not make a connecting company at the other end of its line, its agent to receive and deliver freight to it to be carried by it to its final destination. In such case the initial company becomes a forwarder only.

      Evidence — Admission — Interpreters — Foreigners — Conversation in presence of opposite party.

    4. In an action on a contract where the plaintiff, a foreigner, understanding English imperfectly, testifies that in making his alleged contract with the defendant company’s agent, he was accompanied by his own agent, who was a fellow countryman, and acted as interpreter, the plaintiff is not entitled to testify to what his agent had told him in the presence of the defendant’s agent as coming from the latter.
    Argued Oct. 31, 1910.
    Appeal, No. 135, Oct. T., 1910, by plaintiff, from order of C. P. No. 4, Allegheny Co., Second T., 1908, No. 97, refusing to take off nonsuit in case of Salvatore Catanzaro, trading as S. Catanzaro & Company, v. Pennsylvania Railroad Company. Before
    Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit for damages for injuries to freight.
    Carnahan, J., stated the case as follows:
    The. plaintiff is a fruit dealer in the city of Pittsburg, and the defendant is a corporation of the state of Pennsylvania. In December, 1906, the plaintiff purchased in the city of Boston, Massachusetts, a large quantity of Almeria grapes and lemons and arranged to have them transported by rail to the city of Pittsburg. The lines of the defendant company did not extend to Boston. It has no railroad there, but it did have an office in that city, which was in charge of a district freight solicitor, employed by defendant company. The plaintiff, in company with another man, called upon the solicitor at his office and claims that he contracted with him as an authorized agent of the Pennsylvania Railroad Company for the prompt transportation of his goods to Pittsburg in warm and suitable cars, especially adapted for the carrying of such perishable freight. The man who accompanied him was an interpreter named Di Cola, and it was through him and by him that all negotiations looking to the transportation of the goods were conducted. The conversation which took place at the office was in the English language, of which language the plaintiff had a very slight knowledge. The interpreter was a fruit broker, doing business in Boston. He had bought these goods for the plaintiff and was assisting him to arrange for their shipment to Pittsburg. He knew the freight solicitor, and it was not unusual for the broker to ship fruit from Boston over railroads to various points of the United States. The plaintiff left Boston for Pittsburg before these goods were shipped, having given instructions to the interpreter, who was his agent at least in this respect, to attend to their delivery at the cars. When the goods reached Pittsburg they were found to be damaged. The loss to the plaintiff was almost a total loss. Claiming that his goods were in perfect condition when shipped, that they were placed in cars dilapidated and unfit for the carriage of such perishable goods, that they were unnecessarily delayed on their way to destination, and that the damage was the result of the railroad company’s carelessness and negligence in these respects, he brought this suit against the Pennsylvania Railroad Company, basing it in his verbal contract with the district solicitor in Boston.
    January 3, 1911:
    The court directed a compulsory nonsuit.

      Error assigned was refusal to take off compulsory non-suit.

      J. Roy Dickie, with him Wm. W. Wishart, for appellant.
    Defendant on cross-examination of plaintiff’s witnesses will not be permitted to lead out new matter constituting his own case: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Sullivan v. Railroad Co., 175 Pa. 361; Auge v. Darlington, 185 Pa. Ill; Leedom v. Leedom, 160 Pa. 273.
    A point for binding instruction for defendant could not have been affirmed in the case at bar if these shipping receipts had been offered as part of defendant’s own case: Union R. R. & Trans. Co. v. Riegel, 73 Pa. 72; Dungan, Hood & Co. v. Phila. & Reading Ry. Co., 41 Pa. Superior Ct. 269; Jennings v. Grand Trunk Ry. Co., 127 N. Y. 438 (28 N. E. Repr. 394); Strohn v. D. & M. Ry. Co., 21 Wis. 562; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324 (58 N. E. Repr. 44); Vuille v. Penna. R. R. Co., 42 Pa. Superior Ct. 567.
    The fact that a conversation was had through an interpreter affects the weight but not the competency of the evidence: Com. v. Vose, 157 Mass. 393 (32 N. E. Repr. 355).

      Thomas Patterson, of Patterson, Sterrett & Acheson, with him James R. Miller, for appellee,
    cited as to the offering in evidence of the shipping receipts: Kann v. Bennett, 223 Pa. 36; Leh v. D., L. & W. R. R. Co., 30 Pa. Superior Ct. 396.
   Opinion by

Mr. Justice Stewart,

The one question of fact in the case was whether the plaintiff’s contract for the transportation of his stock of fruit in suitable cars from Boston to Pittsburg was with the defendant company or with the Boston & Maine Railroad Company. Leaving out of consideration for the moment the evidence elicited by the defendant on the cross-examination of the plaintiff’s chief witness, which it is claimed was improperly made part of plaintiff’s case, and expressing no opinion in regard to the weight to be allowed it as a matter of defense, we are of opinion that on plaintiff’s own proper showing, the case was one for the jury. From the testimony offered by the plaintiff, a parol contract with the defendant through its resident agent as traffic solicitor, out of which liability would attach, could easily be derived, involving a finding of agency on part of the Boston & Maine Railroad Company in receiving the plaintiff’s fruit for shipment to the defendant company at the point of connection. If a railroad company, having received freight to be carried beyond its line, may make a connecting company its agent to carry to the place of final delivery, no reason is apparent why such company may not make a connecting company at the other end of its line, its agent to receive and deliver freight to it to be carried by it to its final destination. In such case the initial company becomes a forwarder only. The defense to the present action as stated in the affidavit filed was that the contract for cars and transportation was made with the Boston & Maine Railroad Company, the initial carrier, and not with the defendant company, and that the former company as agent of the plaintiff, and pursuant to his instructions, caused the cars loaded with plaintiff’s fruit to be delivered to the latter at Wilkes-Barre, to be by it transported to Pittsburg. This defense was essentially substantive in character, and could properly be introduced only after the defendant’s case had been opened to the jury. The rules governing such matters are intended not only to secure an orderly procedure in trials, but to prevent unfair advantage being taken. A witness for the plaintiff testified in chief that he had represented the plaintiff in the purchase of the fruit at auction; that he was present at the agreement with the defendant’s agent for its shipment to Pittsburg, acting as interpreter on the occasion; and that on the conclusion of the agreement the plaintiff returned to his home in Pittsburg, having charged the witness with the duty of seeing that the fruit was safely delivered to the carrier for shipment. The witness further testified that, as instructed, he had caused the fruit to be delivered at the place where the cars were provided for its shipment on the tracks of the Boston & Maine Railroad. On cross-examination he was shown certain papers which he identified as papers signed by himself acting for the plaintiff, which in point of fact were shipping orders for the plaintiff’s fruit addressed to the Boston & Maine Railroad Company, and certain shipping receipts therefor from the latter company, six in number, one for each car employed, which he admitted had been delivered to him a day or two after the consignment had been made. At. the conclusion of the cross-examination, counsel for defendant offered in evidence the papers so identified, “as part of the witness’s cross-examination.” The offer was objected to on the ground that it was an attempt to introduce a matter of defense on cross-examination of plaintiff’s witness. The objection was overruled and the evidence admitted as offered. At the close of plaintiff’s evidence a compulsory nonsuit was ordered. The appeal is from the refusal of the court to remove the nonsuit. It very clearly appears from the opinion filed in the case, that in ordering the nonsuit the learned trial judge was influenced solely by the evidence elicited on the cross-examination in regard to the orders for shipment and the receipts of the Boston & Maine Railroad Company. On no other ground was the non-suit asked.. As already said, the defense that plaintiff’s contract was with the Boston & Maine Railroad Company was substantive in character. The evidence relied on was confined to the orders for shipment and the receipts. Orderly procedure required that they should be withheld until the defendant had entered upon its case, but because the order of evidence is so largely committed to the discretion of the court, it is only where a disregard of settled rules in this particular results in prejudice, that it constitutes reversible error. Did prejudice here result? We repeat that on plaintiff’s own showing the case was for the jury. It would have been none the less so had the shipping order and the receipts been introduced by the defendant as part of its own case. It would still have been for the jury to say what weight and effect would be allowed the order for shipment in light of all the evidence; and so with respect to the receipts or bills of lading which were delivered after the shipment. Neither could be conclusive against the plaintiff on the question as to whether they superseded the oral contract claimed to have been made with the defendant company, except as introduced by the plaintiff as part of his own case. For, after all, it would be a question of intention. Did the plaintiff intend, by making out these orders for shipment and accepting these receipts, under the circumstances developed, to abandon his contract with the defendant company and accept the Boston & Maine Railroad Company as his agent for the transportation? A clear legal presumption that he did might have arisen had he offered them without explanation, but not otherwise. The court improperly and against objection allowed the orders and receipts to be made part of plaintiff’s case, and rested its nonsuit on them as though they had been offered by the plaintiff. The rule governing such matters is nowhere more clearly stated than by Mr. Justice Tktjnkey in Hughes v. Westmoreland Coal Co., 104 Pa. 207, where it is said “This court has rarely, if ever, reversed for an error in permitting a violation of the rules relating to cross-examination which did not result to the prejudice of a party. Where the defendant is improperly allowed to cross-examine the plaintiff’s witness and educe matter of defense, the jury should consider the testimony so drawn out as if the witness had been called and examined in chief on the part of the defendant. Under such circumstances it is error for the court to order a non-suit on the ground that the plaintiff’s own witness had testified to matter constituting a good defense.”

The plaintiff is a foreigner understanding imperfectly our language. He had testified that in making his alleged contract with the defendant company’s agent, he was accompanied by his own agent, Di. Cola, who was a fellow countryman and acted as interpreter. He was asked whether Di Cola had told him in the presence of the agent what the latter had said with respect to the contract. Having replied affirmatively he was then asked to state what Di Cola told him as coming from the agent. The exclusion of this evidence is the subject of the remaining assignment. The ruling was entirely correct. The fact that an interpreter was required is conclusive that the defendant’s agent was unfamiliar with the language employed. He could not know whether Di Cola correctly represented to the plaintiff what he had said, and his assent to its correctness under such circumstances could not be implied. The several assignments relating to this are overruled. The other assignment, which we have heretofore discussed is sustained. The judgment is reversed with a venire facias de novo.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Black et al. v. Pittsburg. Carmichael’s Appeal.

      Municipal corporations — Judgments and suits — Bight of taxpayer to defend — Statutes—Repeal by implication — Acts of March S3,1877, P. L. SO, and March 7, 1901, P. L. SO — Pittsburg.
    1. The Act of March 23, 1877, P. L. 20, which provides that in case of any unsatisfied judgment or suit “against any township, borough, school or poor district, or other municipal district” any taxpayer may inquire into the validity of the judgment and defend the district, is not applicable to cities, so as to warrant the intervention of a taxpayer of the city of Pittsburg to inquire into the validity of an unsatisfied judgment on award of viewers and to defend the city in the suit.
    2. The Act of March 7, 1901, P. L. 20, covering cities of the second class, providing for a complete department of law and putting the legal matters of the corporation in the hands of the city attorney, must be deemed as repealing the act of 1877, if that act ever applied to cities of the second class.
    Argued Oct. 31, 1910.
    Appeal, No. 188, Oct. T., 1910, by Alice D. Carmichael, a taxpayer, from an order of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 197, dismissing petition to intervene in case of S. W. Black and J. H. Park v. City of Pittsburg.
    Before Brown, Mjss-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to intervene.
    The facts appear in the following opinion of Shaeer, J.:
    In each of these cases, Alice D. Carmichael has presented her petition alleging that she is a taxpayer of the city of Pittsburg, and that in each of these cases legal proceedings have been had which are to the detriment of the city and, therefore, to her loss as a taxpayer. In the first and second cases mentioned, which concern the same matter, the petitioner alleges that a board of viewers made an award against the city for one hundred and forty-eight thousand odd dollars; that an appeal was taken by the city, in which the city solicitor made an affidavit that the amount was in excess of the value of the land, which was not worth more than $80,000; and that afterwards, on motion of the city solicitor and the attorneys for Black et al., and the filing of a stipulation as to the time of payment of the award, the appeal was discontinued, and the award confirmed; and that this was without authority of the city councils, unlawful, and against the interests of the city and the petitioner as a taxpayer. The allegation in the third mentioned case is that a certain condemnation bond given by the city in the sum of $200,000 is too large and ought to be reduced to $110,880, for the reason that the existence of a bond of $200,000 might come to the knowledge of any jury who might pass upon the value of the land and prejudice them as to that value. In the fourth case, in which an appeal from the award of viewers is pending, the petitioner alleges that she greatly fears that an action similar to that táken in the other cases, as to the discontinuance of the appeal, may be taken by the city solicitor, to the prejudice of the city and herself, wherefore she prays in all of these cases to be admitted to come into the cases as a party, and to inquire into the validity of the proceedings, and in general to protect the city from loss.
    She claims the right to do this under the provisions of the Act of March 23, 1877, P. L. 20, which provides that in the case of any unsatisfied judgment or suit against “any township, borough, school or poor district, or other municipal district,” any taxpayer may inquire into the validity of the judgment and defend the district as fully and completely as the officers of the district would by law have the right to do. We are very clearly of opinion that these words do not apply to the cities of the commonwealth. It,is a well-known rule that “a statute which treats of things or persons of an inferior rank cannot, by any general words, be extended to those of a superior. So a statute treating of “deans, prebendaries, parsons, vicars, and others having spiritual promotion” does not apply to bishops: 1 Bl. Com. 88. The only cases to which we have been referred where it was even claimed that the act applied to cities are those of Driscoll v. City of Chester, 5 Del. County Rep. 387, and White v. City of Chester, 10 Del. County Rep. 394, where the common pleas of Delaware, although refusing the petition in each case, appears to be of opinion that the act applies to that city. The absence, however, of any case in which the act has been applied to any city for the thirty-three years of its existence, is very strong evidence of the construction placed upon it by the courts'and the profession.

      January 3, 1911:
    The Act of March 7, 1901, P. L. 20, covering cities of the second class, provides for a complete department of law and puts the legal matters of the corporation in the hands of the city attorney, and is so very inconsistent with the application of the act of 1877 to the business of a city that even if the act of 1877 originally applied to the city of Pittsburg it must be deemed to be repealed by the act of 1901.
    Being of opinion, therefore, that the act of 1877, upon which the petitioner relies, does not apply to the city of Pittsburg, the petitions filed in the several cases above named are dismissed.

      Error assigned was in dismissing the petition.

      H. M. Scott, for appellant,
    cited: White v. Chester, 10 Del. County Rep. 394; Driscoll v. Chester, 5 Del. County Rep. 387.

      Chas. A. O’Brien, for appellee.
    Cities occupy a class by themselves, and to include them in the general words “other municipal district” would violate the well established rule of construction that general words following a specific enumeration are limited in their meaning to things of the same class or kind as those enumerated: Butler’s App., 73 Pa. 448; Allen’s App., 81* Pa. 302; Renick v. Boyd, 99 Pa. 555; Monongahela Bridge Co. v. Pittsburg & Birmingham Ry. Co., 114 Pa. 478; Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271.
    The act of 1877 if it did apply to cities of the second class was repealed by the Act of March 7, 1909, P. L. 20; Sifred v. Com., 104 Pa. 179.
   Per Curiam,

The order of the court below is affirmed at appellant’s costs on its opinion dismissing her petitions.


text:
    West Homestead Borough, Appellant, v. Erbeck.

      Municipal contracts — Fraud—Equity—Engineer’s estimates — Contracts.

    In an action of trespass by a borough to recover damages alleged to have been suffered through the collusive fraud of its engineer and the defendant, a contractor, by which plaintiff was led to pay for work not done in compliance with the plans and specifications of a contract, upon estimates given by the engineer in pursuance of a scheme to defraud, the fact that the contract between defendant and the borough provides that the engineer’s decision on all points should be “final and binding” will not compel the plaintiff to go into equity to have the estimates set aside as a prerequisite to recovery at law.
    Argued Nov. 1, 1910.
    Appeal, No. 189, Oct. T., 1910, by plaintiff from order of C. P. No. 4, Allegheny Co., Second T., 1908, No. Ill, refusing to take off nonsuit in case of Borough of West Homestead v. E. J. Erbeck.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for payments made on a municipal contract through alleged fraud and collusion. Before Carnahan, J.
    The facts appear by the opinion of the Supreme Court.
    The court, upon the conclusion of plaintiff’s case, ordered judgment of nonsuit.

      Error assigned was in refusing to take off nonsuits

      John Marron, with him F. C. McGirr, for appellant.—
    The matter embraced within this controversy is not within the jurisdiction conferred by agreement upon the engineer: Drhew v. City of Altoona, 121 Pa. 401; Lauman v. Young, 31 Pa. 306; Gonder v. Railroad Co., 171 Pa. 492; Jacob v. Weisser, 207 Pa. 484; Gallagher v. Sharpless, 134 Pa. 134; Memphis, Clarksville & Louisville R. R. Co. v. Wilcox, 48 Pa. 161.

      January 3, 1911:

      John S. Ferguson, with him Ralph C. Davis, for appellee,
    cited: Hartupee v. Pittsburg, 131 Pa. 535; Sisk v. Garey, 27 Md. 401.
   Per Curiam,

The borough of West Homestead had a contract with the appellee for grading, paving and curbing certain streets. From time to time he was paid by the borough moneys due him according to estimates made by the borough engineer, the payments amounting in all to $82,259.94. After these payments had been made the borough discovered, as it proposed to show on the trial, that the work had not been done by the contractor in compliance with the plans and specifications, but in utter disregard of them, and that the estimates which he received from the borough engineer were given to him by that official in pursuance of a scheme between them to defraud the borough. One of its offers was to prove that the defendant and the borough engineer, by fraud and collusion, “procured, obtained and made false estimates of work done, whereby very large amounts in excess of what was coming to the contractor and what was due him for work actually done, were certified by said engineer, and the money obtained from the treasurer of the borough on said certificates.” This and other offers by which the borough proposed to show the fraud that had been practiced upon it by its engineer and contractor, acting in collusion for the purpose of defrauding it, were disallowed and a nonsuit directed, because the trial judge was of opinion that, in this action by the borough to recover what it alleges was fraudulently obtained from it by the defendant, the estimates of the engineer could not be assailed, the contract having provided that his decision on all points should be “final and binding.” In the opinion refusing to take off the nonsuit the court recognized the right of the borough to recover if the engineer and contractor had conspired to defraud it and did actually defraud it as the result of a conspiracy beTween them, but held that the estimates must stand until set aside by an appropriate proceeding on the equity side of the court, as such a proceeding was the only one by which the borough could get rid of their binding effect. In this we cannot concur. It is supported by neither reason nor authority.

If the borough had not paid the contractor the amounts due him according to the estimates given him by the engineer, and this were a suit by him to recover from the borough, it could undoubtedly defend on the ground that the estimates were fraudulent and had been given to the contractor in pursuance of a scheme between bim and the engineer to cheat it. It would not have been required under our. system of administering equity in common law proceedings to first go into a court of chancery to have the estimates declared void, but, under its charge of fraud and collusion, could have directly attacked them in the suit on them by the contractor; and the converse of this is true in this action to recover what the borough offered to prove had been obtained from it by the combined fraud of its engineer and contractor. The gist of its complaint is this fraud, and in the face of such a charge, if made and sustained, even in a collateral proceeding, neither record, award, judgment nor decree will furnish shelter to the wrongdoer: Mitchell v. Klntzer, 5 Pa. 216; Phelps et al. v. Benson, 161 Pa. 418.

The assignments of error are sustained and the judgment is reversed with a procedendo.


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    McKean, Appellant, v. Riter-Conley Manufacturing Company.

      Corporations — Increase in salary — General manager — Board of directors — By-laws.
    The right of a director in a corporation, who is also its general manager, to recover for an increase in salary in the latter position, depends upon his ability to show an express contract or agreement by the corporation to increase his salary; and when it appears that the by-laws of the company declared that its board of directors should have the management of the business of the corporation and, from time to time, change the salary or emoluments of its managers, such a claim is barred by a finding that the board of directors never authorized such an increase.
    Argued Nov. 1, 1910.
    Appeal, No. 206, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Third T., 1909, No. 199, on bill in equity in case of Robert A. McKean v. Riter-Conley Manufacturing Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an accounting.
    Swearingen, P. J., found the facts to be as follows:
    FINDINGS OP PACT.
    The plaintiff, who had been a director and general manager of the defendant, alleged in his bill that he for many years had had an account with the defendant which was kept upon its books; that a dispute had arisen between the parties as to what amount was due him, owing to objections made by defendant to certain items; that the account had never been settled; and that an accounting was necessary in order to determine the balance due him, plaintiff. He therefore prayed that an account be taken, that the amount due the plaintiff be ascertained, and that a decree be entered directing the defendant to pay such balance.
    In its answer the defendant admitted that there was an account upon its books with the plaintiff. It alleged that the plaintiff had without authority increased his salary and had caused such increase to be entered upon its books without its knowledge or consent; that he had withdrawn from the defendant salary to which he was not entitled and had had credited to him interest in excess of the proper amount, and that the true state of the account showed it to be indebted to the plaintiff in the sum of $46.50, for which balance it agreed that a decree should be entered with costs to the date of filing the answer. It prayed upon the entering of such decree that the bill should be dismissed.
    The plaintiff filed the general replication.
    The case came on for trial upon the equity trial fist, testimony was taken and the case was argued by counsel and submitted.
    From the evidence we find the following:
    1. The Riter-Conley Manufacturing Company was granted a charter under the laws of the state of New Jersey on September 28, 1898. It was duly organized thereunder the next day to engage in the “manufacture of iron, steel and other structural work, machinery and appliances manufactured from iron, steel, or other materials.” The corporation was the successor of Riter & Conley, a partnership. Its capital stock was fixed at $750,000, of which $633,000 were subscribed. Its principal office was fixed at Jersey City, N. J., but its board of directors was authorized to have offices outside of the state of New Jersey; and it did establish and has since maintained an office in the city of Pittsburg, Pa., where the greater part of its business has been transacted. It had two plants, one on Preble avenue, Allegheny, Pa., and the other at Leetsdale, Allegheny county, Pa. The business transacted was very large and very profitable.
    2. Thomas B. Riter was the owner of a very large amount of the stock, much more than one-half of it. At the organization of the corporation said Thomas B. Riter and John S. Craig, Peter Kerner, William C. Coffin, Herbert P. Hatch and Robert A. McKean, the plaintiff, were chosen directors. Under the by-laws which were adopted the number of directors was fixed at six and a majority of those in office was necessary to constitute a quorum for the transaction of business. Mr. Riter was elected president, Mr. Coffin, vice president, and Mr. Craig, secretary and treasurer. Mr. Riter continued as president and director until his death April 23, 1907. Mr. Coffin and Mr. Craig continued in their offices as directors until January, 1908. The said Robert A. McKean also continued as director until November 11, 1907. He had been in fact the general manager of the previous partnership and shortly after the organization of the corporation his position was officially designated general manager; and he continued in that position until January, 1908. He never was one of the executive officers of the corporation. His duties as general manager required him to look after the manufacturing part of the business and the erection of work. His salary as general manager was fixed about the time of the organization of the corporation at $4,000 per year.
    3. The plaintiff was one of the original subscribers to the capital stock of said corporation. An account with the plaintiff was opened upon the books of the corporation about the time of its organization. In this account he was charged with his subscription to the capital stock and with such other moneys as he drew from time to time; and in said account he was credited with such dividends as he was from time to time entitled to receive, and with interest upon any credit balances which were shown by the books to be in his favor. From and after July 1, 1903, the plaintiff had a balance to his credit in the account aforesaid and in January, 1908, said balance was apparently $62,'600. But the salary to which the plaintiff was entitled was not entered in said account except as hereinafter specified in findings of fact No. 4. Each month the amount due the men entitled to receive salaries, including the plaintiff, was embraced in one voucher, charged to “Office Expense” or pay roll, and each received his proper amount out of the money so drawn.
    4. As above stated, Thomas B. Riter, the president of the defendant corporation, died April 23, 1907. About two or three weeks afterwards, the said William G. Coffin, John S. Craig and Robert A. McKean, the plaintiff, were together in Mr. Craig’s office. The meeting appears to have been a casual one. Mr. Craig and Mr. McKean related conversations which as they alleged they each had had with Mr. Riter relative to an increase of their salaries. The following paper was then made out in favor of the plaintiff, which was offered in evidence and marked exhibit No. 1.
    “April 1, 1907.
    “Credit.
    “Robert A. McKean.
    “Salary from October 1, 1901, to Sept. 30, 1906.
    $5,000
    “Equal five years 4,000@$1,000=$5,000
    “Salary from Oct. 1, 1906, to March 31, 1907 $3,000
    “Equal 6 months 2,000@$1,000=$1,000 $6,000.00
    “O. K. -
    “Wm. C. Coffin.
    “J. S. Craig.”
    At the same time the following paper was made out in favor of the said John S. Craig, which was offered in evidence and marked exhibit “A.”
    “April 1, 1907.
    “Credit.
    “J. S. Craig.
    “Salary from Oct. 1, 1901, to March 31, 1907.
    $6,000
    “Equal 5 years, 6 mos. 4,000@$2,000=$11,000.
    “O. K.
    “Wm. C. Coffin.
    “Roberta. McKean.”

      Both of these papers were written by said John S. Craig and they were handed to Thomas D. Gillespie, the bookkeeper and auditor of the corporation. Pursuant thereto Mr. Gillespie entered upon the books of the corporation credits in favor of the said plaintiff and the said Craig. The sum of $6,000 was credited by Mr. Gillespie in the aforesaid account of the plaintiff, it being the only instance when salary was credited to him therein. The entry was as follows: “1907, April 30th. General Expense 11-198 $6,000.00.” There were afterwards credited to the plaintiff the following: September 30, 1907, $912.50, interest on his credit balance. December 31, 1907, $837.07, interest on his credit balance. Said credit balances include the aforesaid sum of $6,000. The plaintiff was also subsequently credited with interest on credit balances which the plaintiff claimed was $22.50 in excess of the amount to which he was entitled.
    5. No meeting of the board of directors of the defendant corporation was called for the purpose of taking action upon the increase of salaries mentioned in findings of facts No. 4, nor was any meeting called for any purpose. The said meeting of Mr. Coffin, Mr. Craig and Mr. McKean was not a meeting of the board of directors of the Riter-Conley Manufacturing Company. No minute of any action then taken was ever made. The only authority which Mr. Gillespie had for entering said credit in favor of the plaintiff was the paper exhibit No. 1, mentioned in findings of fact No. 4. Said paper was not filed among the records of the defendant but it was retained by Mr. Gillespie until he left the defendant in January, 1908; and it still continued in his possession until May 24, 1909, when he delivered it together with said exhibit “A” to Mr. Fletcher, the president of the defendant corporation. The evidence does not show that the entry of $6,000 in favor of the plaintiff mentioned in findings of fact No. 4 was brought to the attention of any officer, director or stockholder of said corporation other than the four gentlemen therein mentioned prior to about Decern-ber 1Ó, 1907; nor does the testimony show that any one except the said four knew of the existence of said exhibits No. 1 and “A” prior to May 24, 1909.
    6. Very little appears in the minutes of the board of directors of said corporation relative to its general business although the transactions appear' to have amounted to millions of dollars per annum. But the board did meet frequently and minutes were made of the business transacted by it. The by-laws provide , that the board of directors shall have the management of the business of the corporation and among other things shall have power “to appoint and at their discretion remove or suspend such managers, subordinates, assistants or otherwise and clerks, agents and servants permanently or temporarily as they may from time to time think fit and to determine their duties and fix and from time to time change their salaries or emoluments.”
    Nothing appears upon the minutes of the corporation prior to November 11, 1907, with respect to salaries or their increase. The testimony indicates that Mr. Riter fixed the salaries of' the executive officers and the heads of departments. But the testimony does not show that the fixing of salaries was ever left to any other individual or set of individuals except the board of directors as aforesaid.
    7. The plaintiff’s salary was originally fixed at' $4¡000 per annum by Mr. Riter. Some time during the year 1901 the plaintiff had a conference with Mr. Riter in which he asked for an increase of his salary from $4,000 to $5,000 per annum. Several similar conferences were held by them afterwards. In the spring of 1906 the plaintiff again asked Mr. Riter for an increase,, this time to $6,000 per annum. Mr. Riter declined to make said increase. While he raised no objection he replied substantially in each conversation that he would make it satisfactory or would arrange it later. In the meantime the plaintiff’s salary at the rate of $4,000 per year was regularly paid him in the manner described in findings of fact No. 3. After May 1, 1907, the plaintiff’s salary was regularly paid him until November 1, 1907, in the same manner, but at the increased rate of $6,000 per year.
    8. At the next annual meeting of the stockholders of the defendant corporation after the death of Mr. Riter, held October 24, 1907, a new board of directors was elected. Said Wm. C. Coffin and John S. Craig were the only members of the old board who were re-elected. The plaintiff was not re-elected. November 11, 1907, the board organized by the election of H. A. Carpenter as president, Wm. C. Coffin as vice president, John S. Craig, secretary and treasurer, and Robert A. McKean as general manager. At a subsequent meeting of the board December 9, 1907, the salaries of said positions were fixed at $7,500 per annum each, as appears by the minutes of the board of directors of that date.
    9. In the meantime an audit of the affairs of said corporation had been ordered and was then in progress. Within a day or so after the last named meeting of the board of directors the auditors called the attention of several of the board to the entry of $6,000 in favor of the plaintiff mentioned in findings of fact No. 4. On January 22, 1908, the resignations of Mr. Coffin and Mr. Craig as officers and directors of the defendant corporation were accepted and the same day the resignations of the plaintiff and of T. D. Gillespie from their positions were also accepted. On January 27, 1908, an agreement was made between the defendant corporation and the plaintiff, John S. Craig, William C. Coffin and several others whereby the corporation purchased all their stock therein and agreed to pay for the same and also their credit balances in the manner therein specified. It was further agreed that the books of the corporation as they then stood should not be held conclusive upon the defendant, the audit being then in progress, but that said books might be corrected later and that the said parties (including the plaintiff) should not be bound by the results of said audit, but that corrections should be made in accordance with the actual facts. Pursuant to this agreement the defendant paid the said plaintiff for his said stock and it also paid to him the amount of his credit balance except the sum of $7,421.05 to which it claimed he was not entitled. When the audit above mentioned was completed, the defendant on March 27, 1908, which was within a reasonable time, notified the plaintiff of its said objections to the items aforesaid of his account aggregating $7,421.05. When the defendant filed its answer, however, it admitted that the plaintiff was entitled to $46.50, for which it tendered a decree with costs to the date of answer, but it declined to pay the balance, to wit, $7,374.55.
    CONCLUSIONS OF LAW.
    1. The Riter-Conley Manufacturing Company, the defendant, never made a contract with Robert A. McKean, the plaintiff, whereby he became entitled to a salary of $5,000 per year from October 1, 1901, to September 30, 1906, and to a salary of $6,000 per annum from October 1, 1906, to March 31, 1907, and to a like salary from the latter date until November 1, 1907. Neither was such a contract ever ratified by the defendant; nor is the' defendant estopped from contesting the claim of the plaintiff as set forth in his bill of complaint.
    2. The entry in the plaintiff’s account upon the books of the defendant of a credit of $6,000 on April 30, 1907, was unauthorized and without the knowledge or consent of the defendant. Likewise the credit to plaintiff of interest upon said sum of $6,000, aggregating $172.50, was unauthorized, and without the defendant’s knowledge or consent.
    3. The payment to the plaintiff of the sum of $1,166.67 being the salary received by him from April 1, 1907, to November 1, 1907, in excess of salary at the rate of $4,000 per annum was unauthorized by the defendant and was without its knowledge or consent.

      Error assigned was decree of the court.

      January 3, 1911:

      A. Leo Weil, with him Charles M. Thorp and H. D. Montgomery, for appellant.
    0. C. Bowers, with him J. Gilmore Fletcher and Edward B. Vaill, for appellee.
   Per Curiam,

The appellant was one of the directors and the general manager of the defendant company, and in this proceeding, instituted by him for an accounting, his contested claim is the one he makes for an increase in his salary as general manager from October 1, 1901. His right to recover this depended entirely upon his ability to show in the court below an express contract or agreement by the company employing him at that time to thereafter pay him more than he was then receiving for his services. He makes no claim — as, of course, he could not — on a quantum meruit for the increase in his fixed salary, and he was bound to know the provision in the by-laws of his company which declares that its board of directors shall have the management of the business of the corporation and fix and, from time to time, change the salary or emoluments of its managers, subordinates, assistants, agents and servants. Among the findings is one that the board of directors of the defendant company never authorized an increase in the appellant’s salary, and the decree is affirmed on the first three conclusions of law logically reached by the learned trial judge in view of the facts correctly found by him.

Appeal dismissed at appellant’s costs.


author: Mr. Justice Mestrezat,

text:
    Kearns, Appellant, v. Carnegie Steel Company.

      Negligence — Master and servant — Dangerous employment — Duty to instruct.

    1. In an action to recover damages for personal injuries, the case is for the jury where it appears that the plaintiff, who had been employed in defendant’s rolling mill for two years as a “spell hand” to relieve at intervals the operator of a hydraulic lever which turned over the steel billets before they entered the rolls, had been directed by the foreman to go down into a dark pit beside the machine, in which he had never been before, to assist in making a change in the rolls; that upon plaintiff’s saying “I don’t know anything about it, you had better come down with me,” the foreman had said “You had better go down, I will tell you what to do when you go down,” and that while he was in the pit; working by the light of a torch held in his hand, and under the surveillance of the foreman, who assured him that he was all right, the latter gave a signal to another operator to start the crane, and as a result the plaintiff was carried up by the weight upon which he was, and was knocked off and pinioned between two iron beams.
    '2. It is the duty of an employer not only to instruct an employee, ignorant"'of the dangers incident to his work by reason of age, inexperience," or other cause, but also to point out to him how those dangers'may ho avoided.
    Argued Nov. 1, 1910.
    Appeal, No. 204, Oct. T., 1910, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 714, refusing to take off nonsuit in case of Anthony J.. Kearns, a minor, by his father and next friend, Martin Kearns, and Martin Kearns v. Carnegie Steel Company.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries to a minor nineteen years old. Before Davis, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in refusing to take off nonsuit.

      Geo. M. Harton, with him Jno. L. High, for appellants.

      January 3, 1911:

      David A. Reed, of Reed, Smith, Shaw & Beal, for appel-lee.
   Opinion by

Mr. Justice Mestrezat,

We are all of opinion that this case was for the jury, and that the learned court erred in directing a nonsuit.

Anthony J. Kearns, the minor plaintiff, was and had been for two years prior to the accident employed as a "spell hand” at the defendant’s rolling mill located at Duquesne in Allegheny county. His duty was to relieve at intervals the manipulator at the thirty-eight inch blooming mill. The manipulator operates the hydraulic lever that turns over the steel billets before they enter the rolls. .

In the evening of March 19, 1904, Kearns was ordered by Causler, the foreman, to go down into the pit for the purpose of assisting in changing the rolls. This pit is about twenty feet long, five or six feet wide, and from twelve to fifteen feet deep. It is dark, and is described by the witness Gallagher as "a kind of a miserable place, greasy and all like that, and water pipes running past there.” While Kearns had been employed for two years as a “spell hand” at these works, he had never entered the pit for the purpose of changing the rolls. As he was starting into the pit he said to the foreman, according to his testimony: “I don’t know anything about it, I don’t understand it.” Kearns also said to the foreman: “You had better come down with me,” to which the latter replied: “You had better go down, I will tell you what to do when you go down.” He then described what occurred at the time and immediately before the accident as follows: “He [Causler] said to me, ‘You go ahead.’ And he handed me a torch, and I went on down in the pit, crawled back on the steelyard, and got on the weight, and he hollered down to me, ‘Watch your head, I am going to throw down the chain to you.’ He throwed the chain down. I asked him what I was to do with it. He said, ‘You put that along the beam.’ And I put it around the beam, and I says, ‘Am I all right here?’ He says, ‘Yes, you are all right.’ Just at that he give the signal for the crane boy to go ahead. When he give the signal to the crane boy to go ahead, it took the weight up, and the beam overhead knocked me down, and I got my arm fastened between the steelyard beam and the beam above.” Gallagher, a witness for the plaintiff testified that he was present at the time Kearns was directed to go into the pit and that Kearns said to the foreman, as he was entering the pit, that he did not know much about the job; also that Causler said to Kearns: “Go ahead down, what you don’t know we; will show you.”

The pit work, as stated by the learned trial judge, consisted in placing a chain lowered from the crane over the end of the steelyard beam. This beam raised a heavy weight, and when the beam was raised to the top of the pit the plaintiff’s duty was then to place a link over the end of the beam to hold it in place, thus releasing the rolls so that the change could be made. This work had to be done in the pit and by the aid of a torch which was carried by the person performing the service.

The negligence charged against the defendant company was the failure to instruct the plaintiff in the performance of his duties in the pit. The learned judge, however, held that the risks or dangers incident to the work to be done in the pit by the plaintiff were obvious, and such as would be apparent to any one exercising the care required under the circumstances. He, therefore, held that there was no duty resting on the defendant to give the plaintiff instruction how to perform his duties and to avoid the perils of the service in the pit, and directed a nonsuit.

It is true, as suggested by the learned court in the opinion refusing to take off the nonsuit, that the plaintiff had been employed about the mill for four years prior to the accident, but it is equally true and not disputed that he was never down in this pit and was never called upon to perform the duties required of him when he entered the pit. on this occasion. He had relieved the manipulator but that duty was performed on the floor and not in the pit. From his position on the floor, he may have seen part of the machinery in the pit, but as to how to do the work in the pit and avoid the dangers incident thereto he was entirely ignorant. The plaintiff recognized the danger as well as his own ignorance of the duties to be performed, and gave distinct notice to the foreman of the fact immediately before entering the pit. In anticipation of being employed at some future time to perform the service, the foreman advised the plaintiff that he ought to learn how to do the work at that time. He also said to him that he would tell him what to do when he got down in the pit. This was a recognition by the foreman of the ignorance of the plaintiff as to the performance of his duties and as to his knowledge of the risks to be encountered in doing the work. It was the duty of the company by its foreman or other representative to properly instruct the plaintiff before the latter entered the pit. This was doubly true in this case because the foreman was expressly notified by the plaintiff that he did not understand the work, and was requested to go into the pit with the plaintiff to instruct him in the performance of his duties. The dangers or perils to be encountered in the performance of the work in the pit, lighted only by a torch held in the hand of the laborer, cannot as a matter of law be declared to be the subject of common knowledge or apparent to ordinary observation. The conditions in the pit and the description by the plaintiff of the manner in which he had to perform the work do not leave that impression, and hence the case should have been submitted with proper instructions to the jury to deteripine whether under the circumstances disclosed by the testimony the defendant was negligent in failing to instruct the plaintiff, and if so whether such negligence was the cause of his injuries.

It is the duty of an employer not only to instruct an employee, ignorant of the dangers incident to his work by reason of age, inexperience or other causes, but also to point out to him how those! dangers may be avoided. It is true, as argued by the defendant, that the plaintiff was employed about the pit for two years, relieving at intervals the manipulator, and that from his position on the floor he could see the machinery in the darkness of the pit, but that gave him no instruction how to act when he entered the pit to perform his duties and how to avoid the risks or perils incident thereto. On cross-examination the counsel for the defendant asked the plaintiff: “And you knew that the steelyard was going to be raised until it was high enough for you to slip the link over, didn’t you? A. I didn’t think it was going to go that high.” The plaintiff’s ignorance of that fact caused his injury. He had had no experience in the work, he had not been instructed in regard to its performance, he did not know how high the steelyard should or would go, and it was neither apparent to ordinary observation nor was it the subject of common knowledge. The only person who would have such information would be he who had been informed of the fact or, by his experience working in the pit, would thereby have acquired the information. A careful reading of all the testimony has convinced us that it was a question for the jury and not for the court to determine whether the defendant company neglected its duty under the circumstances in not- properly instructing the plaintiff as to the discharge of the duties to be performed in the pit. There is no question of fellow servant in the case.

The judgment is reversed, and a venire facias, de novo awarded.


text:
    Jutte’s Estate.
    January 3, 1911:

      Husband and wife — Promissory notes — Collateral security — Separate estate of wife — Decedent’s estate.

    Where it appears as a fact that a woman was a bona fide creditor of her husband who became indebted to her for moneys or securities which she gave to him out of her separate estate, and in acknowledgment of the indebtedness received from him his promissory note secured by other promissory notes which belonged to him, no question can arise as to the woman’s right, as against creditors of her deceased husband’s estate, to receive dividends payable on these notes by the receiver of the corporation which made them.
    Argued Nov. 1, 1910.
    Appeal, No. 207, Oct. T., 1910, by F. N. Hoffstot and Martha A. Friend et al., executors of James W. Friend, deceased, from decree of O. C. Allegheny Co., Dec. T., 1909, No. 126, awarding distribution in estate of William C. Jutte, deceased.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Mosch-zisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Miller, J.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to adjudication.
    Wto. M. Robinson, with him J. H. Beal, of Reed, Smith, Shaw & Beal, for appellants.

      A. Leo Weil, with him Wm. M. Galbraith, Charles M. Thorp and H. D. Montgomery, for Jane C. Jutte, appellee.
   Per Curiam,

W. C. Jutte paid the balances due on ten promissory notes on which he was accommodation maker or indorser for the McKeesport Saw Mill Company, and they were assigned to him by the respective holders. On June 14, 1904, he executed and delivered to his wife, Jane C. Jutte, the appellee, his promissory note for $100,000, and deposited said notes of the sawmill company with her as collateral security for the payment of his obligation. Three claimants for the dividends to be awarded on these notes appeared before the auditor appointed to make distribution of the fund in the hands of the receiver of the sawmill company. They were Jane C. Jutte, the ap-pellee, the Colonial Trust Company, administrator of her deceased husband’s estate, and F. N. Hoffstot and James W. Friend, the latter now deceased. Mrs. Jutte claimed the dividends as the holder of the notes upon which they were to be declared; the administrator asked that they be paid to it for distribution among the creditors of the deceased, and Hoffstot and Friend asked that they be awarded to them as pledgees and assignees under an agreement with Jutte dated May 12, 1903. Under a stipulation entered into by these three claimants the dividends were paid to the Colonial Trust Company, Jutte’s administrator, the stipulation providing that it should hold the same separate and apart from the general funds of the estate and account for them as a separate fund, to be awarded to such claimant or claimants as the orphans’ court of Allegheny county might determine were entitled to receive it. On this appeal Hoffstot and the executors of James W. Friend, deceased, have abandoned their claim that the fund should be awarded to them under the agreement of May 12, 1903, and ask that it be distributed to the general creditors of the estate. The single narrow question, then, is whether the court below erred in directing that it be paid the appellee. If she was a bona fide creditor of her husband, who became indebted to her for moneys or securities which she gave to him out of her separate estate, and in acknowledgment of his indebtedness to her he gave her his promissory note for $100,000, secured by his pledging to her the notes of the McKees-port Saw Mill Company which belonged to him, no question can arise as to her right to receive the dividends- on these notes. This involved simply a question of fact for the determination of the court below, and the learned auditing judge has found that, at the time her husband pledged the notes of the sawmill company to her, he did so to secure to her payment of valid indebtedness which she held against him. In the discharge of our duty on this appeal we have reviewed the evidence upon which this finding rests, and have not been persuaded that any error was committed in the conclusion reached by the court below. There was sufficient evidence upon which to base it, and nothing more need be said in refusing to disturb it.

Appeal dismissed and decree affirmed at the costs of the appellants.


text:
    Harton, Appellant, v. Hildebrand.

      Contracts — Building contracts — Right to rescind — Action against transferee — Equity—Injunction.
    1. A building contract provided that the buildings contracted for should be built by a certain date at a price stated, and that a certain percentage of the price should be paid on an estimate of the amount of wort as the buildings progressed. After some of the houses had been erected an estimate of the work done was presented to the owner and approved by him, but not paid. The owner also owed the contractor a large sum due on another building contract. By reason of mortgages, judgments and mechanics’ liens filed against the properties, the contractor was without security for the amount due on either contract. At this time the owner conveyed the property to a third party. No offer was made then, or at any other time to pay the contractor the balance due him. The third party notified the contractor to go on with the work. Held, that the contractor was justified in refusing to go on with the work when his percentage was not paid, and in rescinding the contract after notice had been served upon him by the third party without tender of payment.
    2. In such a case where it appears that the third party took the property subject to all legal claims for labor and materials furnished in and about the erection of the houses, the contractor has the right to assert his claim for work done against such third party and to have the latter restrained from selling the property until the debt should be paid.

      January 3, 1911:
    Argued Nov. 1, 1910.
    Appeal, No. 194, Oct. T., 1910, by plaintiff, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 43, dismissing bill in equity in case of William E. Hartón v. William E. Hildebrand and Frank P. Howley.
    Before Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to restrain the sale of houses. Before Shafer, J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree dismissing bill.

      George C. Bradshaw, for appellant.

      J. B. Eichenauer, with him Paul S. Ache, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We do not agree with the learned court below in dismissing this bill which was filed to restrain the defendant Howley from selling and disposing of the houses until he-had paid the debts due from Hildebrand, the other defendant, to the plaintiff Hartón.

No exceptions were filed by either party to the findings of fact made by the learned trial court, and, therefore, the case must be disposed of upon those facts. They may be summarized as follows: On June 1, 1901, Hildebrand entered into a contract with Hartón for the erection of eight dwelling houses on certain lots fronting on Brackenridge avenue in the thirteenth ward of .the city of Pittsburg. On June 9, 1901, Frank' P. Howley made a deed to Hildebrand for these lots and he proceeded at once with the erection of the buildings.

On August 7, 1901, Michael P. Howley, father of Frank P. Howley, conveyed to Hildebrand twenty-six lots of ground on Avalon street in the thirteenth ward of the city of Pittsburg. Judgment notes were given to secure the purchase money, but they were withheld from record until the Prudential Trust Company, which was to furnish the money for the erection of the houses, had put on record as a first lien a mortgage from Hildebrand. On September 26, 1901, Hildebrand made a contract with Hartón for the erection of nineteen houses on the Avalon street property. This contract provided that the buildings'should all be finished by April 1, 1902, and that the contract price should be $62,149 and should be paid “by the owner to the contractor in instalments, as follows: 70 per cent of the above amount to be paid on estimated amount of work done as the buildings progress.”

The Brackenridge avenue houses were completed in March, 1902. The houses on Avalon street were not finished or nearly finished by April 1, 1902, and Hilde- ' brand and Hartón agreed in the winter of 1901-1902 that no attempt should be made during the cold weather to complete these houses on April 1.

The contract price for the Brackenridge avenue houses was $18,000 and when they were completed in March, 1902, there was due from Hildebrand to Hartón $5,573.61.

Hartón began the Avalon street houses soon after making the contract and carried on the work until December when it was suspended, and began work again about March 1, 1902, and continued until about May 20, 1902, only nine of the houses however being begun at this or any later time by him, this action on his part being apparently acquiesced in by Hildebrand. On the latter date Hartón presented to Hildebrand an estimate of the work already done on these houses showing the value of the work done to date, the seventy per cent of the amount required to be paid in installments, the amount of extra work done, the aggregate of the amount already paid him and the balance of $2,496.26 which was then due and payable. This statement was admitted by Hildebrand in writing to be correct.

In May, 1902, a number of mechanics’ liens were filed against the Brackenridge property; but no liens were ever filed against the Avalon street houses.

On May 22, 1902, Hartón quit work on the Avalon street houses and declared that he would not go on with the contract because of the failure of Hildebrand to pay bim the sum owing on the first and on the second contracts as above stated.

On June 14, 1902, Hildebrand conveyed to Frank P. Howley both the Brackenridge avenue and Avalon street properties and as part of the same transaction an agreement was entered into between Hildebrand and Howley by which the latter accepted the conveyance subject to all legal claims for labor and materials furnished in and about the erection of the houses. By this agreement, Howley assumed payment of these claims.

On July 31, 1902, Howley wrote Hartón that if the latter was willing to go on under the contract he would aid him as much as he could in the construction of the buildings; that if he declined to go on he would complete the buildings himself. This notice was given under the sixth paragraph of the contract relating to the Avalon street houses which provides- that if the contractor at any time during the progress of the work fails to supply material or workmen, or causes any unreasonable suspension of work, the owner may terminate the contract and finish the buildings at the contractor’s expense. Immediately upon the receipt of this communication Hartón replied that as there was owing to him for a long time at least $2,500 on this contract which had not been paid, and as it was impossible by . reason of the nonpayment for him to carry out the contract, that he thereupon declared the contract null and void. Howley then proceeded to finish the nine houses which cost him $12,548, more than the contract price.

The above are substantially the findings of fact by the learned trial judge. He found as a conclusion of law that the contract between Howley and Hildebrand by which Howley agreed to release Hildebrand from all claims against him arising from the purchase of the lots and the placing of the buildings thereon gave any creditor of Howley whose claim arises out of the buildings in question a right of action against Howley for the same. He further found that the contract for the Avalon street houses does not fix any definite time at which payments on account are to be made but provides that seventy per cent is to be paid on the estimated amount of the work as the buildings progress; that an estimate for about $2,500 was made on May 20, 1902, as above stated, and on May 22, 1902, Hartón threw up the contract and quit work because this estimate was not paid him. The learned court then finds as the basis of his decree: “It seems to us that under all the circumstances it was altogether unreasonable for Hartón to rescind the contract for any such delay of payment as this, and that his subsequent refusal to go on with the work when called upon by Howley, the new owner, to do so justified Howley under the contract in finishing the buildings and charging the cost against Hartón.” The conclusion is that instead of Hildebrand or Howley being indebted to Hartón, as the latter claims in his bill, there is due Howley the difference between $12,548, the excess over the contract price which Howley was required to pay to finish the Avalon street houses, and $5,573.61, the amount due from Hildebrand to Hartón on the Brackenridge avenue houses. The bill was dismissed, and the plaintiff has appealed.

The parties agree that the only question in the case is whether, under the circumstances existing at the time, Hartón was justified in stopping work on the Avalon street houses on May 22, 1902, and, subsequently, in refusing to proceed with it on notice by Frank P. Howley, who was then the owner of the property. As noted above, the learned court below held that “under all the circumstances it was altogether unreasonable for Hartón to rescind the contract for any such delay of payment as this.” The court, it will be observed, does not find that the amount of the estimate of May 20, 1902, is not correct or was not due Hartón at that date, or that Howley was dissatisfied with it; nor does the court base its decree against the plaintiff on either of those grounds. It, therefore, becomes important to ascertain what the circumstances were on May 22, 1902, when Hartón declined to proceed under the Avalon street contract, and on August 1, 1902, when he declared the contract rescinded. While, as suggested by the counsel for the appellee, a balance due Hartón under the Brackenridge avenue contract has no bearing upon the rights of the parties under the Avalon street contract and would not justify the rescission of the latter contract by Hartón, yet it may not be out of place to note the fact that at the date of the suspension of work by Hartón on the Avalon street houses, Hildebrand was indebted to him under the Brackenridge avenue contract which had been fully performed by Har-tón in the sum of over $5,500. For the payment of this balance, Hartón had no security and Hildebrand had no property out of which it could be collected.

It is found as a fact that there was a balance due Har-tón on the Avalon street contract of $2,496.26 according to the estimate of May 20, 1902, two days prior to the cessation of work by Hartón under that contract. It is contended by the appellee, Howley, that under the supplemental contract between Hartón and Hildebrand the estimates were to be agreed upon by the three men, and that while Hartón and Hildebrand, the owner of the lots, had made an estimate and agreed upon the amount due, Howley had not consented to its correctness and, hence, it could not be paid by the trust company who held the funds for that purpose. It will be observed, however, that the learned court below gave no weight to that contention and does not assign that as a reason for its conclusion. While the appellee suggests that it does' not clearly appear whether the several installments paid to Hartón on the Avalon street contract had been paid on estimates, it is a fact that.several installments, thirteen in number, were paid at various times by the trust company to Hartón as the work progressed. .The learned court below makes no finding in regard to this matter. In the absence of testimony to the contrary, it will be presumed that the installments were paid on estimates duly made, because the contract so provides, and Hartón testifies that they were paid on estimates made by him and Hildebrand. But conceding that the written contract required Howley’s consent to an estimate before it was paid by the trust company, yet by the conduct of all the interested parties in permitting the payment of the thirteen installments that provision of the agreement was apparently waived. The learned court below has not found that Howley was required to consent to the estimate of May 20, 19Q2, in order to make it a valid voucher for the trust company, nor does the court find that Howley did not consent to the correctness of the estimate.

The contract price was to be paid, as stipulated in the agreement, “by the owner to the contractor in installments as follows: 70 per cent of the above amount to be paid on estimated amount of work done as the buildings progress.” It is manifest, therefore, that estimates were to be made as the work progressed. While the contract does not state when the estimates were to be made, yet it clearly contemplated that when an estimate had been made that seventy per cent of it was then due and payable. On May 20, 1902, an estimate of the work done and the material furnished was made, and it appeared by the estimate that there was due and payable from Hildebrand to Hartón on the Avalon street contract the sum of $2,496.26. Hildebrand was the owner of the property and the money was due from him. It is not pretended that he made any offer to pay it or secure it. At that time he had no property except the Brackenridge avenue and Avalon street properties. As found by the court, there was yet due Hartón on the Brackenridge avenue contract over $5,500. That property was incumbered by a first mortgage to the Prudential Trust Company and by judgments entered on notes for the purchase price of the land. Hildebrand had signed a no-lien contract. By agreement of the parties another Prudential Trust Company mortgage of $60,000 was a first lien on the Avalon street property, and it was also subject to the judgments entered for the purchase money. It is, therefore, apparent that for the balance due Hartón for labor and material furnished in the construction of the Avalon street houses, recourse to that property or the Brackenridge avenue property would have availed him nothing. Hildebrand was without means and a pursuit of him by Hartón would have simply resulted in the pursuer being mulcted in the cost in a vain endeavor to collect the claim.

These were the conditions existing at the time the estimate of the balance due Hartón on the Avalon street contract was made on May 20, 1902, and on the second day thereafter when he declined to proceed with the work until the balance was paid. The same conditions prevailed on August 1, 1902, when he rescinded the contract. Both parties consented to the jurisdiction of equity, and that a chancellor should adjust their differences in accordance with equitable principles. Was it unreasonable, as held by the court below, for Hartón to stop work under these circumstances? Was .he compelled to proceed with the work, put his labor and material in it, and thus add to the amount already owed him by Hildebrand with neither property nor any responsible party in view from whom he could compel payment? Is there any principle of equity or rule of law which would require him under these circumstances to proceed with the work simply for the benefit of Hildebrand’s creditors and, possibly, for the improvement of Howley’s property? Having due regard for the rights of the parties under the stipulations of their contract, these questions permit of but one answer, and that is in the negative.

Mr. Howley’s letter of July 31, requiring Hartón to proceed with the construction of the nineteen houses did not change the situation'. He made no offer at that or any other time to pay Hartón the balance due him. Har-ton’s letter of August 1, 1902, states clearly the situation at that time, and justified his action in declaring the contract at an end. The balance due Hartón as shown by the estimate was still unpaid and unsecured with no offer on the part of Howley to whom the real estate had been re-conveyed to pay the balance. Kerner, the arbitrator, provided in the agreement of the parties, had refused to act. In other words, the conditions existing on May 22, 1902, when Hartón declined to proceed with the work continued to exist on August 1, when he declared the agreement at an end.- Hildebrand, the owner, had violated the Avalon street contract and he was not in a position to demand its enforcement. Howley occupied no better position. The contract was entire as to the erection of the nineteen houses, and divisible and sev-erable as to the payment of the installments for the work and material furnished. Hildebrand’s failure, therefore, to perform his part of the agreement by paying the estimate of May 20, 1902, gave Hartón the right to declare the contract at an end: Rugg v. Moore, 110 Pa. 236; Easton v. Jones, 193 Pa. 147. In the last case it is said (p. 150): “While plaintiff’s failure in ability or intention to complete the work will be a good defense, even to an action for a payment stipulated to become due on a state of progress shown to be reached, yet a refusal to pay such an installment without that or other legal excuse is such a breach of the contract as will justify a rescission, and entitle the plaintiff to recover pro tanto for the work.”

The learned court below correctly held that the agreement between Howley and Hildebrand gives any creditor of Hildebrand whose claim arises out of the building in question, a right of action against Howley for the same. Hartón, therefore, has a right to assert his claim against Howley and to have the latter restrained from selling the property until his debt is paid.

We are of the opinion that the learned judge was in error in dismissing the bill on the ground, “that under all the circumstances (as found by him) it was altogether unreasonable for Hartón to rescind the contract for any such delay of payment as this, and that his subsequent refusal to go on with the work when called upon by How-ley, the new owner, to do so justified Howley under the contract in finishing the buildings and charging the cost against said Hartón.” We think that Hartón was justified, under the facts found by the learned judge, in refusing to continue the work on the Avalon street houses by reason of the failure and refusal of Hildebrand to pay the estimate of May 20, 1902, and subsequently in rescinding the contract for the continued refusal to pay the estimate. It follows that the court below should have sustained the bill and passed upon the several prayers thereof, one of which asked the court to ascertain the amount due from Hildebrand to Hartoxi for the work done and materials furnished upon the contracts as set forth in the bill. We are, therefore, compelled to remand the case.

The decree is reversed, and the bill is reinstated with a procedendo.


text:
    Marshall, Appellant, v. Clause.

      WiZZs — Devise—Conditional devise — Fee simple — Life estate.

    A devise of land to testator’s son with the condition annexed, “But if he should have no direct heirs, then during his natural life and his present wife or widow to have the use of it during her widowhood, at her death or remarriage said property to go to my heirs at law” contemplates a definite failure of issue and indicates a plain intention that there should be a fee in the son only in case he left heirs of his body.
    Argued Nov. 2, 1910.
    Appeal, No. 205, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1910, No. 415, for defendant in case of Samuel F. Marshall v. W. L. Clause.
    Before Brown, Mes-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit for purchase price of coal underlying a tract of land on a sale agreement conditioned upon vendor’s title in fee simple to the land. Before Swearingen, P. J.
    January 3, 1911:
    The opinion of the Supreme “Court states the case.
    On demurrer to plaintiff’s statement judgment was entered in favor of defendant. Plaintiff appealed.

      Error assigned was in entering judgment for defendant on the demurrer.

      William J. Barton, for appellant.

      R. H. Hawkins, of Dalzell, Fisher & Hawkins, for ap-pellee.
   Per Curiam,

The plain intention of James Marshall in devising an interest in a farm to his son, Samuel F. Marshall, the appellant, by a will dated August 5, 1890, is in no danger of being defeated by any rule of law. The devise of the land to the appellant, which he undertook to convey in fee to the appellee, has annexed to it the following condition: “But if he should have no direct heirs, then during his natural life and his present wife or widow to have the use of it during her widowhood, at her death or remarriage said property to go to my heirs at law.” The clear contemplation of the testator was a definite failure of issue and his intention is plain that there should be a fee in the son only in case he left heirs of his body. In default of such heirs, the farm, upon the death of the son, is to pass for life to his widow, and upon her death to the heirs of the testator generally. The learned court below correctly held that Stoner v. Wunderlich, 198 Pa. 158, was controlling authority that the appellant has but a life estate in the land, and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Taylor’s Estate.

      Wills — Probate—Signature at “the end thereof” — Presumptions.
    1. Where a testamentary writing is found beneath the signature of a testator, the probability is that such -writing was not there at the time the will was executed, and in the absence of evidence, the presumption is that the writing was added after the execution of the will.
    2. A testamentary paper, in the hand-writing of the testatrix, was written upon the first and fourth pages of a piece of ordinary folded note paper. The first page of the paper contained certain testamentary gifts below which, upon the third line from the foot of the page, was the signature of the testatrix, following which, on the last line of the page were the words “And my watch to Nora Richards.” At the head of the fourth (or last) page of the paper was another unsigned clause, also in the handwriting of the testatrix, which read as follows: “I want you all to be satisfied with what I have done.” This paper was inclosed in a sealed envelope on which was -written, also in the hand of the testatrix and not signed, “to Jinie H. Richards oping this when I am dead.” Held, that, in the absence of evidence to show when the words following the signature were written, so much of the -writing as preceded the signature was rightly admitted to probate as the will of testatrix.
    Mr. Justice Mestrezat dissents.
    Argued Nov. 2, 1910.
    Appeal, No. 208, Oct. T., 1910, by John W. Taylor, from decree of O. C. Allegheny Co., Feb. T., 1910, No. 194, admitting will to probate in Estate of Mary L. Taylor, deceased.
    Before Brown, Mes-trezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from refusal of register of wills to admit a testamentary paper to probate. Before Over, J.
    The facts were as follows:
    Mary L. Taylor died and left to survive her, among other children, John W. Taylor, the appellant, and Jennie H. Richards, the appellee. Jennie H. Richards offered to the register of Allegheny county for probate as the last will and testament of Mary L. Taylor, a testamentary paper in the handwriting of Mary L. Taylor, written upon the first and fourth pages of a piece of ordinary folded note paper. The first page of this paper reads as follows:
    “I give to my daughter Jenie H. Richards all my personal! goods everything except the presents and the small bed boster and pilloes I give to Mary Whittlinger my grand doter to Naro Richerd I give the large bed Bolster and pillows and the star quilter to my grand Doughter november the 3 1898 sined by me
    “Mary L. Taylor.
    “And my watch to Nora Richards.”
    The signature is upon the third line from the foot of the page and the clause following the signature is on the last line. At the head of the fourth (or last) page of the paper is another unsigned clause, also in the handwriting of Mary L. Taylor, which reads as follows: “I want you all to be satisfied with what I have done.” This paper was inclosed in a sealed envelope on which was written, also in the hand of Mary L. Taylor and not signed, “to Jinie H. Richards oping this when I am dead.”
    A caveat was filed by John W. Taylor against admitting the paper to probate as the will of his mother, on the ground that it was not signed at the end thereof as required by the Act of April 8, 1833, P. L. 249, and the register refused to admit the paper to probate. After-wards, Jennie H. Richards appealed from this decision of the register, and the orphans’ court, reversing his decision, admitted to probate as the will of Mary L. Taylor, so much of the writing as preceded the signature. There was no evidence aliunde the will, before either the register or the court below, to show when the words following the signature were written. Exceptions to the decree .of the orphans’ court were filed and after argument were overruled. Whereupon the contestant appealed.

      Errors assigned were in dismissing exceptions to decree.

      January 3, 1911:

      Pier Dannals, for appellant.

      G. K. Wright, of McKee, Mitchell & Alter, for appellee.
   Opinion by

Mr. Justice Moschzisker,

Counsel for the appellant states the question involved to be, “whether a testamentary paper is signed at the end thereof so as to constitute a valid will under the Act of April 8, 1833, P. L. 249, when it contains a disposing clause after the signature, which additional clause is not signed, and there is no evidence to'show when the additional clause was written?” The answer depends upon the rule of presumption to be applied.

The court below, in its opinion disposing of the case, said: “It appears from the testimony of two competent witnesses that the signature to the paper offered for probate is Mrs. Taylor’s, and that it is in her handwriting; but there is no oral evidence as to whether the testamentary disposition following her signature was written after or before she signed the paper. ...” The court ruled, “It must be presumed that the clause was written after she had signed her name. ... So much of the writing as precedes the signature of Mrs. Taylor should be admitted to probate as her will.”

The appellant contends that, in the absence of evidence, the presumption is that the words following the signature were written prior to the execution of the will, and that the court erred in deciding otherwise; in support of this contention he relies upon Hays v. Harden, 6 Pa. 409, which is the first case in our reports upon this subject. The syllabus correctly states the purport of that decision: “A testamentary paper, to constitute a will under the act of 1833, must be signed at the end thereof; hence a paper which contains, after the signature of testator, a clause stating his reason for making the devise, which clause was not signed at the end thereof, is not a valid will.” A careful consideration of that case and of our subsequent decisions fails to convince us of the correctness of the appellant’s position. Although the report in the Hays case neglects to state whether or not there was any evidence to show when the subsequent clause was written, Mr. Chief Justice Gibson says in his opinion: "It is evident that the testator considered the whole paper one will.”

When the subject was again before this court in Heise v. Heise, 31 Pa. 246, we decided that the addition of an unexecuted codicil would not have the effect of revoking a perfect will, and in referring to the Hays case we said: “If it be true, that a different interpretation has been given to the statute, and that interpretation has become a rule of property, we should not feel at liberty to assert any other. . . . We do not, however, understand that such is the fact. Hays v. Harden, 6 Pa. 409, is the first case in which the question was mooted. A reference to the facts of that case will reveal that the decision had no reference to the effect of an imperfectly executed codicil or writing, made after the completion and publication of a perfect will; such a will is protected from destruction by the statute except in certain defined modes. The alleged will in that case, commencing with a recital, contained a clause appointing executors and directing the payment of his debts; then anothei devising, in the following words, ‘All my leasehold estate to Abraham Hays. Witness my hand and seal this 26th day of September, 1844. John Hays, [sbal]’ This was immediately followed by another testamentary disposition, concluding, ‘Signed, Sealed, and Delivered by the above named John Hays to be his last will and testament, in the presence of us, who at his request and in his presence have subscribed as wit-nesess thereto.’ Then followed the attestation of two witnesses, who proved their signatures and that of the testator. All this took place at one time. There never was a perfect instrument made and published by John Hays as such. It was not a case of subsequent repeal, but of original defective execution.” This shows that as far back as 1858 we understood it to have been a fixed fact in the Hays case that the writing of the entire paper “took place at one time,”' and there is nothing in the report of that case or any of the subsequent cases to indicate that our decision rested upon any rule of presumption.

In Wineland’s Appeal, 118 Pa. 37, there was evidence tó show that the added clause was written before the will was signed, and the will was declared invalid; while in Saunders v. Samarreg Co., 205 Pa. 632, there was evidence to show that the addition was made after the signing of the will, and the will was held to be valid. In Beaumont’s Estate, 216 Pa. 350, the matter after’ the signature was not testamentary in character, and following Wikoff’s Appeal, 15 Pa. 281, we decided that it did not invalidate the will. The last case on the subject is Teed’s Estate, 225 Pa. 633, where the will was written upon the fourth page of a sheet of letter paper and signed at the foot of that page. At the top of the third page there was an unsigned and unattested clause appointing an executor. The court below treated the addition as an unexecuted codicil, and sustained the probate of the will. In affirming, we said: “In the absence of evidence the presumption would be.'that such an addition to the will as that here shown, was made after the signature of the testatrix, and that of the subscribing witnesses had been put on the paper. The general rule is thus stated in 1 Underhill on Wills (1900), sec. 268, where it is said: 'Unattested alterations in a will, though proved to have been made by the testator, in the absence of any evidence showing when they were made, will be presumed to have been made after execution, and consequently, unless properly attested, will not operate as a partial revocation of the will.’ And again in Page on Wills (1901), sec. 432, it is said: 'An alteration in a will is, as a general rule, presumed, in the absence of evidence, to have been made by the testator after the execution of the will. This rule is different from that often said to obtain in the case of- other written instruments for this reason: In the case of other instruments it is a civil wrong, if not a crime, to alter a written instrument. In the case of wills the testator may alter the will as much as he pleases, without wronging anyone.’ ”

The appellant argues that the determination of the point under discussion was not necessary to the Teed case, and all that we have quoted should be taken as dicta. Be this as it may, we are convinced of the soundness of the view there expressed and see no reason to depart from it. When a testamentary writing is found beneath the signature of a testator, the probability is that such writing was not there at the time the will was executed; for reason and general practice assure us that if it had been part of the will, the testator would have signed beneath it and not above it; so, in the absence of evidence, it is proper to presume that the writing was added after the execution of the will.

The assignments of error are all overruled and the decree of the orphans’ court is affirmed.

Mr. Justice Mestbjezat dissents.