author: Per Curiam,

text:
    Hendrickson, Appellant, v. Chester City.

      Negligence — Municipalities—Slippery pavement.

    A city is not liable for personal injuries sustained by a' fall on a side-5walk, where it appears that the accident was due to the general' slippery condition o'f the street which occurs in all cities in winter time.
    Argued Feb. 10, 1908.
    May 4, 1908 :
    Appeal, No. 326, Jan. T., 190Y, by plaintiff, from judgment of C. P. Delaware Co., Dec. T., 1906, No. 243, On verdict for defendant in case of Samuel H. Hendrickson and Leara Jane Hendrickson, his wife, v-. Chester City.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stéwart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries caused by a fall'bn a slippery pavement. Before Johnson, P. J. .
    The opinion of 'the Supreme Court-states the case.
    The court gave binding instructions for defendant. ■ ■ ■
    ' Yerdict'and judgment for defendant. Plaintiff appealed.

      Error assigned ,was in giving binding instructions for defendant.

      A. B. Geary, for appellants.

      A. A. Cochran, for appellee.
   Per Curiam,

■- It was not shown that the place of the accident was essentially or continuously dangerous, though it might become so from’time to time when the ice melted in the day and froze in the night. There was no accumulation of ice or snow that remained there all the time. This resulted in a temporary and changeable condition dependent on the variation of the weather and it appeared that on the day preceding the evening of the accident the ice had melted and the street was clear. The learned judge was of opinion that the most that was shown “ was a general slippery condition of the street which occurs in all cities in winter time*” We have not been convinced that this was an erroneous view.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Mitchell,

license: Public Domain

text:
    Riley v. Remington.

      Mortgage — Purchase money mortgage — Dower interest.

    Where the widow and children of a decedent execute a deed of land formerly belonging to the decedent, and take as part payment a purchase money mortgage, under which interest on a sum stated is to be paid to the widow “in lieu of her dower” and to secure her interest, and the mortgage is foreclosed in the lifetime of the widow, the widow is entitled to' have from the proceeds of the sale the sum mentioned in the mortgage as being in lieu of her dower, set aside to her for life.
    Argued Feb. 10, 1908.
    Appeal, No. 343, Jan. T., 1907,,by William E. Robinson, administrator of the estate of Elizabeth B. Robinson, deceased, from .order of C. P. Delaware Co., March T., 1904, No. 74, dismissing exceptions to auditor’s report in case of Sarah E. Riley, Anna C. Riley, Mary E. Rush and William E. Robinson, administrator of the estate of Elizabeth B. Robinson (formerly Elizabeth B. Riley), deceased, and Theodora Riley v. Pym Remington and Clarice Y. Remington, his wife, mortgagors, and William H. Lush, terre-tenant.
    Before Mitchell, C. J., Bbown, Mestbezat, Elkin and Stewabt, JJ.
    Affirmed.
    Exceptions to report of auditor, William C. Alexander, Esq.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      May 4, 1908 :

      R. R. Foulice, with him George T. Butler, for appellant.

      Ernest LeRoy Green, Horace P. Green and V~. Gilpin Robinson, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

The fund for distribution arose from the foreclosure of a purchase money mortgage, which contained the following provision : “ The interest of the sum of $2,609.75 (to be paid) to Sarah E. Riley, widow of Thomas Riley, deceased, during said term, if she shall so long live, the same being in lieu of her dower, and the remainder of said interest to the said Anna C. Riley, Mary E. Lush, Elizabeth B. Riley, Theodora Riley and Margaret T. Riley in equal proportions, said principal sum being part purchase money of said real estate this day conveyed to the said Clarice Y. Remington by the said parties of the second part hereto, and the said Sarah E. Riley being joined herein for the purpose of securing to her the interest on the said sum of $2,609.75 which sum represents her dower interest in said real estate.”

The fund being insufficient to cover the amount set aside to secure the widow and the arrears of interest due her, the auditor awarded her the whole of it. The other parties claim a pro rata distribution.

The provision in regard to the widow being by express agreement “in lieu of her dower ” and to secure her interest, is entitled to all the attributes of dower necessary to her protection. Among these is priority of claim both as to principal and interest of the stipulated sum of $2,609.75. If the widow had not joined in the sale, the purchaser would have taken the land subject to her paramount claim of dower, the priority of which neither he nor the heirs could contest. If, then, the purchaser had given her a separate mortgage, it would have retained the quality and precedence which the dower had for which it was substituted. The proceeds of a sale under such mortgage would have gone first to the widow both for principal and arrears of interest, even if they took the whole. In fact all the parties joined in one mortgage, but their respective interests and status were expressly preserved by the provision that the widow was “ joined herein for the purpose of securing to her the interest on the said sum of $2,609.75, which sum represents her dower interest in said real estate.” The clear intention as well as the legal effect was to secure to the widow the same relative rights and priority that she had under her original estate of dower.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    McCoy v. Niblick, Appellant.

      Vendor and vendee — Married women — Nonjoinder of husband — Contract — Statute of frauds.

    Where a married woman, employs an agent to expose her land to public sale, hears the agent read the conditions of sale, is present at the sale, accepts a portion of the purchase money, and subsequently gives possession to the vendee and suffers him to make improvements in the land, she cannot subsequently set up that the sale was void under the statute of frauds.
    Under the Act of June 8, 1893, P. L. 344, a married woman who has sold her land without her husband joining in the sale, and has delivered possession of it to the vendee, cannot recover the land back without paying to the vendee the portion of the purchase money which she had received and also reimbursing him for moneys paid on account of fire insurance, improvements, and an annuity payable under the contract of sale.
    A married woman who has sold her land without her husband’s consent knows that her contract or agreement to sell is a valid one, even if neither she, nor her vendee may be able to have it specifically enforced, and, therefore, whatever the vendee may pay on it, or expend in pursuance of it, must be returned to him by her when she finds that she cannot specifically perform.

      Practice, C. P. — Trial—Reopening case — Discretion—Orphans’ court— Ejectment.

    In an action of ejectment it is not an improper exercise of judicial discretion for the trial judge to permit the plaintiff to reopen his case after he has closed, and there has been an intimation that a nonsuit would be directed.
    Argued Feb. 11, 1908.
    Appeal, No. 268, Jan. T., 1907, by defendants, from judgment of C. F. Bucks Co., Sept. T., 1906, No. 55, oh. verdict for plaintiff in case of Mary J; McCoy v. Samuel' O. Niblick and William M. McCormick.
    Before Mitchell, O. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for land in Falls township. Before Stout, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The trial judge gave binding instructions for plaintiff.
    Yerdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (1) in permitting plaintiff to open h.er case after she had close'd and after the court had intimated that a nonsuit would be granted ; (2) in refusing binding instructions for defendant; (1) in charging that the contract of sale was void ; (5) in giving binding instructions for plaintiff; (7, 8) in refusing to instruct the jury to return a conditional verdict, and (9) in refusing to submit the case to the jury.

      Herman Yerkes, of ■Yerkes, Boss da Boss, for appellants^
    The appointment of the agent by parol and the participation of the appellee at thé final execution of the contract took the case out of the prohibition of the statute of frauds : Hall v. White, 123 Pa. 95 ; Pierce v. Hakes, 23 Pa. 231; Fitzpatrick v. Engard, 175 Pa. 393.
    . The acceptance of the purchase money and, the delivery of the possession and subsequent expenditures by the appellant, McCormick, pursuant thereto, took the sale out of the statute of frauds: Fitzpatrick v. Engard, 175 Pa. 339 ; Haslet v. Haslet, 6 Watts, 464; Reed v. Reed, 12 Pa. 117; Pugh v. Good, 3 W. & S. 56 ; Milliken v. Dravo, 67 Pa. 230.
    Although a married woman, the appellee was bound by her contract of sale without the joinder of her husband ¡'Sinclair v. Evans, 5 Pa. Dist. Rep. 384; Jenkins v. R. R. Co., 210 Pa. 134; Hertzog v. Hertzog, 34 Pa. 418 ; Hauberger v. Root, 5 Pa. 108 ; Ballas v. Wolff, 11 Pa. Superior Ct. 150 ; McCafferty v. Griswold, 99 Pa. 270.

      Wm. Stuckert, with him Wm. B. Stuckert, for appellee.
    Prior to the act of 1893 this court has repeatedly decided that a marriéd woman’s' contract for sale of her lands, although made in writing, in which her husband does not join,-is null and void Glidden v. Strupler, 52 Pa. 400 ; Trimmer v. Heagy, 16 Pa. 484 ; Miller v. Ruble, 107 Pa. 395 ; Innis v. Templeton, 95 Pa. 262.
    May 4, 1908:
    Nor has this court, in any case, decided that a contract made by a married ivoman, since the act of 1893, to sell her lands without the joining of the husband in that contract, was valid: Jenkins v. R. R. Co., 210 Pa. 134; Bingler v. Bowman, 194 Pa. 210 ; Koechling v. Henkel, 144 Pa. 215 ; Bauck v. Swan, 146 Pa. 444; Pearsoll v. Chapin, 44 Pa. 9; Wiltbank v. Tobler, 181 Pa. 103; Patrick v. Smith, 165 Pa. 526 ; Richards v. McClelland, 29 Pa. 385; Kirk v. Clark, 59 Pa. 479. .
   Opinion by

Mr. Justice Brown,

There was sufficient shown by the appellants to take appellee’s sale of her farm out of the statute of frauds. Wishing to sell it, she sent for Charles F. Yandegrift, :a real estate agent, and asked him to expose it to public sale on March 19, 1906. Iiedid so on that day, after reading the conditions.of sale signed by himself as her agent. She was present at the sale, and, after a conference with Yandegrift, authorized him to sell the property to McCormick, one of the appellants, at his bid of $10.00 per acre, subject to an annuity charge-. The property w7as thereupon knocked down to him and he signed the agreement to purchase it in the presence of the appellee. On the same day he paid her agent $120 — ten per cent of. the purchase money — in accordance with the conditions of sale, and the agent procured from her and handed over to him the title papers to the property. • Shortly before April 1, 1906, when possession of the farm was to be given to the purchaser, the appellee vacated it and McCormick- took possession. He paid the annuity of $100 due- April 1, 1906, -as well as that due the following year. On April 2,1906, he tendered the balance of the purchase money and demanded his deed, which the appellee refused to give him. Subsequently'he paid fire insurance tax on the barn and contents and: expended $4Q0 in improving the farm. This ejectment w7as .brought on August.28, 1906, and a verdict directed -for the -plaintiff, on- the ground that her contract for the sale of-her- farm was void because she was a married woman u7hen she signed it and her husband had not joined in it. The case was tried upon that theory alone, and it is the only one advanced on this appeal- in asking that the judgment on the verdict be sustained.- The effect of sustaining it would be to drive the appellants from the farm and restore it to the appellee without repayment by her to McCormick of the percentage of the purchase money which he paid her agent, or reimbursement for what has been paid for annuity dues, fire insurance tax and improvements.

There was a time when there would have been no relief for McCormick as the vendee of the appellee from what he has shown to be her unconscionable conduct, for, until recent years, a married woman, under her plea of coverture, could retake land from her vendee in possession of it without refunding a dollar of the purchase money, though all of it had been paid to her, and without reimbursement for any improvements made, if the land had not been sold or conveyed in the precise mode pointed out by the statute. But this was when her incapacity to contract at all in relation to her real or personal estate was the rule and her capacity the rare exception. Now her capacity to contract in all respects as if she were unmarried is the rule, and her incapacity the exception. As to her real estate the words of the Act of June 8, 1893, P. L. 344, are: a married woman shall have the same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell or otherwise dispose of any property of any kind, real, personal or mixed, and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage or convey her real property, unless her husband join in such mortgage or conveyance.” A married woman may, therefore, no longer repudiate her contract for the sale of her real estate, in which her husband has not joined, on the ground that it is void, and keep what has been paid to her on account of it or expended by her vendee in pursuance of it. Glidden v. Strupler, 52 Pa. 400; Grim’s Appeal, 105 Pa. 375, and other cases cited by counsel for appellee, are not now authority for permitting a married woman to profit by her moral dishonesty, except when she undertakes to do what the act of 1893 says she still may not do. For the consequences of not doing that which she undertakes to do by virtue of the powers conferred upon her by that act she is as answerable for damages as if unmarried.

Under the act of 1893 a married woman may “sell” her real estate and make any contract “ necessary, appropriate, convenient or advantageous ” to the exercise of her right to sell; but she may not perform her contract to sell without the joinder of her husband in the conveyance. She, therefore, knows when she enters into a contract to sell that she takes the chances, as well as her vendee, that her husband may not join in the deed, and that neither can compel specific performance if he refuses to join. But she knows that her contract or agreement to sell is a valid one, even if neither she nor her vendee may be able to have it specifically enforced, and, therefore, whatever the vendee may pay on it, or expend in pursuance of it, must be returned to him by her, when she finds that she cannot specifically perform. The words of the act would be meaningless if any other effect should be given to them. The appellee contracted to sell under the power conferred upon her by the statute to make the contract, but if not able to perform it, she must place her vendee in the same position he was in before he contracted with her. This is the rule as to all persons sui juris, and married women, who now are of this class in the acquisition, ownership, possession, control, use, lease and sale of their real estate, except when they actually convey, are subject to it. “The act of 1893 gives a married woman the same power that a feme sole has to sell her real estate, except that she may not make a valid conveyance unless her husband joins in the deed : ” Jenkins v. Railroad Co., 210 Pa. 134. Our Brother Stewart, when on the common pleas, properly said of the act of 1893, in Reed’s Estate, 3 Pa. Dist. Rep. 503: “ The act makes a clear distinction between the executory contract of sale and the actual conveyance of the wife’s land, so far as regards the manner of their execution. It gives her the right to contract for its sale in the same manner, and to the same extent, as an unmarried person; but when she comes to convey, she may do so only by her husband joining in the deed. If her right to contract for its sale be qualified, in like manner with her right to convey, she is no better off with respect to her real estate than she was under the act of 1848. It is this right to contract, and her personal liability in connection therewith, that marks the advance made. The refusal of the husband to join in the, wife’s deed cannot operate to relieve her from liability under her contract, any more than her refusal to join in the husband’s would relieve him from liability under his. Can there be any doubt that'the damages in both cases would be measured by the same standard.? The only possible difference between the two as to result is, that the husband could be required- to perform specifically, so far as his own estate in the land is concerned, while performance could not-be decreed against the .wife on her contract since her individual deed would be ineffectual for any purposes. This difference emphasizes the distinction found in the act. The wife’s contract, Unlike that of -the husband, conveys no interest in the land, legal or equitable, but creates a'personal liability only.”

• The appellee is entitled to regain possession of-her land only after paying McCormick what a jury may find is due him for the purchase money, the annuity and the fire insurance tax paid -by him, and for whatever expenditures he made for-improvements before he was notified that the contract would not be specifically performed because the husband-of the appellee would not join in the deed. • This equitable result would have been reached- by a conditional verdict which the jury ought.to have been directed to render, if they believed the facts testified to by -the appellants and their witnesses. ■ -

" As to the. first assignment of error, which complains of the court's permission to the appellee to reopen her case after she had closed,- and there was an intimation that a- nonsuit would be directed, nothing more need be said than that it was not an improper exercise of judicial discretion.

'The first, second and third assignments of'error are. overruled. The fourth, fifth, sixth, seventh, eighth and ninth are sustained, and the judgment is reversed with a venire facias-de novo. ■ 1 ;;


text:
    Rea v. Media, Middletown, Aston & Chester Electric Railway Company, Appellant.

      Negligence — Street railways — Passenger—Getting on car — Contributory negligence — Case for fury.

    In a suit by a passenger for personal injuries against a street railway company, a prima facie case is made for the jury, where the plaintiff testifies that the car had stopped, and she had put her left foot on the step and was reaching with her right hand for the hand rail, when the conductor suddenly started the car, and she was thrown to the ground.
    In such a case the question of plaintiff’s contributory negligence is for the jury, where the plaintiff testified that while she was in the act of reaching for the hand rail, she saw the conductor standing with his back to her, put his hand up, and she supposed he started the car, but she made no outcry or other effort to attract his attention.
    Although the Supreme Court may be of the opinion from a consideration of the printed testimony that the weight of the evidence was against a successful plaintiff in an accident case, and that a new trial might have been granted on that ground, yet it will not reverse the judgment, where it appears that the trial judge after having seen and heard the witnesses, considered the question on a rule for a new trial, and concluded that he could not say that there was “ such a preponderance of evidence in favor of the defendant as would warrant the setting aside of the verdict.”
    Argued Feb. 11, 1903.
    Appeal, No. 352, Jan; T., 1907, by-defendant, from judgment of C. P. Delaware Co., March T., 1906, No. 103, on verdict for plaintiff in case of William B. Rea and Henrietta K. Rea, his Wife, v. The Media, Middle-town, Aston & Chester Electric Railway Company.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Johnson, P. J.
    The facts are stated in the opinion of the Supreme Court.'
    Verdict for William B. Rea for $1,000, and for Henrietta K. Rea for $3,000. Defendant appealed.

      Error assigned was in submitting the case to the jury.

      May 4, 1908:

      David Wallerstein, with him E. A. Howell, for appellant.

      Carlos E. Hough, for appellee, was not heard.
   Per Curiam,

The plaintiff testified that the car had stopped and she had put her left foot on the step and was reaching with her right hand for the hand rail, when the conductor suddenly started the car and she was thrown to the ground. This made a prima facie case for the jury.

The plaintiff also testified that while she was in the' act of reaching for the hand rail she saw the conductor, standing with his back to her, put his hand up and she supposed he started the car, but she made no outcry or other effort to attract his attention. This is argued by appellant as showing contributory negligence. It was certainly evidence of it, but did not establish the fact so clearly that the court could take the question from the jury.

The weight of the evidence was that the car had not stopped when plaintiff attempted to board it. On her own showing there was a sort of scramble there, some boys and several young girls making a rush and getting on the car before it stopped. The weight of the evidence clearly appears to be that plaintiff also made a like attempt. It would have put the case in a more satisfactory shape had the court granted a new trial on this point. But the learned judge saw and heard the witnesses, considered this question on a rule for new trial, and concluded that he could not say that there was “ such a preponderance of evidence in favor of the defendant as would warrant the setting aside of the verdict.” While we should have reached a different conclusion we cannot say his was so clearly wrong as to require a reversal of the judgment.

Judgment affirmed.


text:
    Crawford’s Estate.

      Decedents’ estates — Liens of debts not of record — Sale—Orphans’ court sale — Confirmation of sale — Jurisdiction of orphans’ court — Act of April 18,1853, P. L. 503.
    Where a petition for the sale of a decedent’s real estate avers that it is presented under the Act of April 18, 1853, P. L. 503, and also avers that the real estate is “subject to the lien of debts not of record,” and the petition is not accompanied by an inventory or schedule of debts as required by the Act of March 29, 1832, P. L. 190, the petition will be regarded as having been presented under the act of 1853 even without such an averment.
    A public sale of real estate of a decedent, made within two years of his death by a trustee in pursuance of an order awarded under the Act of April 18, 1853, P. L. 503, to relieve the land from the lien of the decedent’s debts not of record, cannot be confirmed after the expiration of two years from his death, and this is so because there is no sale under the act of 1853 until confirmation by the court, and if confirmation is delayed until more than two years have expired from decedent’s death, the debts will cease to be a lien, and the confirmation is inoperative. In such a case the consent of the heirs will not give the court the power to confirm the sale. The heirs may sell the lands themselves after two years from the death of their ancestor discharged of all his debts not of record, but the act of 1853 gives no authority to the court to do so for them.
    Argued Feb. 11, 1908.
    Appeal, No. 373, Jan. T., 1907, by The College Tract Residence Company, from decree of O. (3. Delaware Co., confirming sale of real estate in estate of Cornelius C. Y. Crawford, deceased.
    Before Mitchell, C. J., Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Petition for sale of decedant’s real estate.
    The facts are stated in the opinion of the Supreme Court.
    The court below in an opinion signed by Johnson, P. J., and Broomall, J., entered a decree confirming the sale.

      Error assigned was the decree of the court confirming the sale.

      Lewis Lawrence Smith, for appellant.
    An administrator’s sale of land for payment of debts is worthless without confirmation : Greenough v. Small, 137 Pa. 132; Hamilton’s Est., 51 Pa. 58; Bower’s App., 84 Pa. 311; Dunlap’s App., 182 Pa. 267; Overdeer v. Updegraff, 69 Pa. 110; Morgan’s App., 110 Pa. 271; Brown’s App., 68 Pa. 53; Robinson v. Glancy 69 Pa. 89; Snodgrass’ App., 96 Pa. 420; Fahrig v. Schimpff, 199 Pa. 423. The function of a sale under the Price act is to unfetter the title to land, not from the lien of actual specified debts, but from the technical lien of possible unrecorded debts. For the purposes of the Price act it is wholly immaterial whether there are any debts or not. Until the expiration of two years there is a statutory lien, which the Price act is designed to remove. After that time there is no such lien, and no reason, therefore, for invoking the Price act.
    May 4, 1908:

      Garrrett E. Smedley, for appellee.
    The appellee contends that the jurisdiction of the court having properly attached it will not be ousted merely because the lien of unrecorded debts expired before confirmation of sale, and that the confirmation relates back at least to the time of sale if not to the date of the decree to sell. That if a valid claim existed at the time sale was decreed and actually made, the sale should be confirmed : Craig’s App., 5 W. N. C. 243; Bowker’s Est., 6 W. N. C. 254; Cake’s Est., 157 Pa. 457; Smith v. Wildman, 178 Pa. 245; s. c., 194 Pa. 294; Grubb v. Galloway, 203 Pa. 236.
   Opinion by

Mr. Justice Brown,

Cornelius C. Y. Crawford died August 16, 1905, intestate, and without issue, leaving a widow and collateral heirs. On October 1, 1906, the widow and one of the heirs presented a petition to the court below for’ the sale of the real- estate of which he was seized at the time of his death. The petition averred that it was presented under the Act of April 18, 1853, P. L. 503, but without such an averment it must be regarded as having been presented under that act. The order of sale was asked for because the real estate was “ subject to the lien of debts not of record, including among others, funeral ex-pénses, costs of settling the estate, taxes, book debts, paving lien, etc.” No inventory of the personal estate of the decedent nor a schedule of his debts accompanied the petition, and, as.it lacked the jurisdictional averments required by the Act of March 29, 1832, P. L. 190, authorizing a sale of a decedent’s real estate for the payment of debts, an order could not have been awarded on it under that act. By the Act of February 24, 1834, P. L. 33, an executor or administrator is directed to apply to the orphans’ court for an order to sell the real estate of his decedent whenever it satisfactorily appears that the personal estate is insufficient to pay all the just debts and expenses of the administration, but the act of 1853 .does not authorize a sale for either of these purposes. The only averment in this petition upon which the court had authority to order a sale was that the real estate was “ subject to the lien of debts not of record.” Debts not of record were debts of the decedent, for the debts of the heirs not of record were not liens upon their interests in the land that descended to them. To pay funeral expenses, the costs of settling the estate, taxes and paving liens, an order of sale could not have issued, for neither of. these items is mentioned in the act of 1853 as one for which the orphans’ court can order a sale.

On the presentation of the petition on October 1, 1906, a citation was directed to the heirs who had not signed it, to show cause why the order of sale should not be awarded, and on October 27, 1906, it was awarded. No saíe was made under it, and on June 15, 1907, an alias order was issued, under which one of the properties of the decedent was knocked off at public sale to the appellant on July 18, 1907. Return was made to the alias order on September 16, 1907, and the court was asked to confirm the sale. Exception was filed to its confirmation by the appellant, for the reason that on Septem-' ber 16, 1907, more than two years had expired from the death of Crawford, and, as his debts not of record were no longer liens upon his real estate, the court was without authority to confirm a sale of it for their payment. This exception was dismissed and the sale confirmed. On'this appeal the single question is whether a public sale of real estate of a decedent, made within two years of his death by a trustee in pursuance of an order awarded under the act of 1853 to relieve the land from the lien of the decedent’s debts not of record, can be confirmed after the expiration of two years from his death.

The Act of June 14, 1901, P. L. 562, provides “ That no debts of a decedent, except they be secured by mortgage or by judgment entered or revived by scire facias within five years prior to the death of such decedent, shall remain a lien on the real estate of such decedent longer than two years after the decease of such debtor, unless an action for the recovery thereof be commenced, and be indexed in the judgment index as other liens are indexed against such decedent, his heirs, executors or administrators, within the period of two years after his decease, and duly prosecuted to judgment.” Crawford having died on August 16, 1905, his debts not of record ceased, after August 16, 1907, to be liens on the real estate which descended to his heirs. Neither the order of sale issued on October 27, 1906, nor the alias issued on June 15, 1907, continued their lien beyond the statutory period of two years: Bindley’s Appeal, 69 Pa. 295. When the alias order was issued the debts of the decedent not of record were liens on the real estate of which he was seized at the time of his death, and on July 18, 1907, when the trustee exposed a portion of it to public sale and accepted the bid of the appellant as the purchaser of it, they still w.ere liens. But no sale of the real estate was effected on July 18, 1907, and none could have been effected on that day by the trustee. All that he then did was to take the bid of the appellant as an offer made to the court which it might, or might not, accept in its discretion : Hamilton’s Estate, 51 Pa. 58.' Though the court’s order had gone out for the sale of the real estate, until it approved the appellant’s bid, there was no sale. The proceedings were in fieri until this was done, for the act of 1853 declares that the sale of a trustee shall be subject to the approval of the court: ” Brown’s Appeal, 68 Pa. 53. “ It is well settled that an orphans’ court sale does not divest the title of the heirs until after confirmation thereof and conveyance delivered under the order of the court. In ordinary sales under articles of agreement between private parties, the sale, as to the vendor, works a conversion ; equity regards that as done which the parties to the agreement have the power to do, and which they have agreed to be done : Richter v. Selin, 8 S. & R. 440. But orphans’ court sales are made under the authority of the court; indeed, the sale is the act of the court, the administrator being only the hand of the court in making it: Armstrong’s App., 68 Pa. 409, and it is therefore subject to the approval and confirmation of the court. Such sales ‘ are liable to be vacated,’ says Mr. Justice Strong, in Demray’s App., 43 Pa. 155, ‘ by a power superior to the purchaser, and against his will. The sale, even after confirmation, does not divest the title of the heirs of the decedent, for it remains in the power of the court until a deed has been executed and delivered. Until then, the heirs’ right to maintain ejectment, even against the purchaser, has not gone: Leshey v. Gardner, 3 W. & S. 314. Until then, no conversion takes place, and if the heir of the decedent die, even subsequently to the confirmation of the report of sale, but before the deed, his interest descends as land, and not as money: Erb v. Erb, 9 W. & S. 147; Biggert’s Estate, 8 Ear. 17. These cases recognize a clear distinction between sales made under order of an orphans’ court and private sales. The latter are exclusively acts of the parties, and are beyond the control of any other power. The former are not the acts of the decedent or his heirs or devisees ; they are the acts of the court, and they require no consent of the owners. In substantial fact, the purchaser buys from the court through its agent. The court reserves the power to decline his bid, and to disannul the act of its agent, until the sale has been fully consummated.’ To the same effect is Overdeer v. Updegraff, 69 Pa. 110 ; De Haven’s App., 106 Pa. 612. The bid of the buyer at an orphans’ court sale is but an offer to the court, which the court may or may not accept at its discretion : Hays’s Appeal, 51 Pa. 58 ; if accepted, however, the title of the buyer may for some purposes, perhaps, have relation to the date of his purchase. An administrator’s sale of land, under an order of the orphans’ court for payment of debts, is worthless without confirmation, for the act of 1832 expressly requires it: Morgan’s App., 110 Pa. 271 ”; Greenough v. Small, 137 Pa. 132. And so a sale of land by a trustee under the Price act, made for any one of the reasons mentioned in it, is worthless without the “ approval of the court.”

Under our cases there could have been no valid sale of the decedent’s real estate under the. alias order of sale before September 16, 1907, the first day the court was asked to approve the bid of the appellant, but on that day there were no liens of debts not of record on the real estate^ and, if not, the court was without authority to order it to be sold to the appellant and a deed acknowleged to it as purchaser. Jurisdiction of the court, so far as it could have ordered a sale of the real estate of the . decedent to relieve it from the lien of his debts not of record, had ended. If the lien of these debts had been continued in in the way pointed out by the act of 1901, the orphans’ court, on a petition presented under the act of 1832, could have ordered and approved a sale which would have passed a good title to the purchaser and allowed creditors to come in on the proceeds. But this is not the situation before us.

In dismissing ' appellant’s exception to the confirmation of sale the learned court below said: “ An orphans’ court sale made for the purpose of divesting the lien of unrecorded decedent’s debts, under an order issued and a sale had within the statutory period of two years, where return of sale is not made until after the expiration of said period, will be confirmed, notwithstanding the purchaser objects to the confirmation, where the heirs or devisees do not object.” The error of this is that the question is not one of the heirs not objecting to the sale, but of the authority of the court to approve it. It has no authority to order or approve a sale except as given by the statute, and a sale made or approved by it without such authority is void. Consent of the heirs can give it none. They may sell the lands themselves after two years from the death of their ancestor, discharged of all his debts not of record, but the act of 1853' gives no authority to the court to' do so for them.

The assignment of error is sustained and the confirmation of the sale by the court below is set aside, the costs on this appeal to be paid by the appellee.


text:
    Light v. Light, Appellant.
    . Deed — Fraud—Confidential relation — Evidence—Cancellation of deed— Equity.

    A deed executed by a woman, ignorant, elderly and feeble, to her niece, who occupied a confidential relation to her, will be set aside, where it appears that the niece by importunities, misstatements, flattery and threats of suicide, induced her aunt to promise to execute a deed reserving to herself a life interest, and giving to the niece the remainder; that the niece, deceiving her own attorney, procured the preparation of a deed absolute in its terms; and that the aunt executed it without being informed of its terms, and in the belief that it carried out the gift to the niece in the manner in which she intended.
    Argued Feb. 18, 1908.
    Appeal, No. 173, Jan. T., 1907, by defendant, from decree of C. P. Lebanon Co., Equity Docket, 1905, No. 2, on bill in equity in case of Mary A. Light v. Fannie P. Light.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin,'JJ.
    Affirmed.
    Bill in equity to-cancel a deed on the ground of fraud.
    Ehrgood, P. J., filed the following opinion:
    From the evidence submitted we find the following facts :
    1. That Mary A. Light, the above-named plaintiff, is a person of limited education and practically no business qualifications, more than sixty years of age and enfeebled througli sickness; that she has always reposed great confidence and trust in the defendant, Fannie B. Light, who is her niece and has lived in the same family with her for more than thirty years and, at various times, was intrusted with the legal papers and business of the said plaintiff and was fully conversant with her affairs.
    2. That on September 30, 1868, she became seized in her demesne as of fee and remained so seized until September 28, 1904, of a certain lot of ground situate in North Lebanon township, Lebanon county.
    3. That upon said lot was erected a large brick dwelling house known as No. 917 Maple street, and several outbuildings ; the whole of said lot and buildings, on September 28, 1904, wére in the actual possession of William Y. Light, as tenant of the plaintiff, and still are in his possession, he holding the same as tenant of the plaintiff and paying the rents to her.
    4. That by intimations of personal violence to herself by the defendant, importunities for the real estate in question, flattery and misstatements, she so worked upon the feelings of the defendant 'that the defendant offered to give her the sum of $200, which the defendant declined but insisted that the plaintiff should give her the aforesaid house and lot. That the plaintiff finally agreed to give to the said defendant the aforesaid house and lot after her death, but reserving and retaining unto herself the absolute control and possession of said property during her lifetime, with the right to use up the whole, if necessary, for her maintenance and support.
    5. That the said Fannie B. Light, the above-named defendant, thereupon, in violation of this agreement, procured an attorney, and, without informing him of the full and entire agreement, had him prepare an absolute deed of conveyance of the said house and lot to her the said defendant, without any such reservation as agreed to and without informing the said plaintiff that she procured an absolute deed to be prepared, which the said Mary A. Light, the above-named plaintiff, executed by mistake, on September 28, 1904, through the deceit practiced upon her by the defendant and under the belief that it was such a writing as had been agreed upon, and without time and opportunity being given to her to consult counsel of her own choice or counsel who prepared the deed, except in the- presence of the defendant, or to consult any of her relatives and friends, other than the defendant, but wholly upon the implicit confidence and trust she reposed in the defendant.
    6. That after the execution of the aforesaid deed of conveyance the same was handed to the defendant and remained in her possession until August 11, 1905, when she took it to the recorder’s office of Lebanon county and had the same recorded.
    7. That the plaintiff did not know that she executed an absolute fee simple title of her property to the defendant until a short time before she instituted these proceedings, when she learned its real legal effect through friends, and after verifying their statements, through counsel, she at once rescinded her agreement and demanded the cancellation of the said deed of conveyance which the defendant refused and still refuses.
    8. That the plaintiff never intended to convey her aforesaid property absolutely to the defendant, but only what remained after her death.
    •9. That no money was paid by the defendant to the plaintiff for said property nor by anyone else for her, and that the plaintiff was not indebted to the defendant nor did any valuable consideration whatever pass between them for said property.
    10. The plaintiff’s estate, exclusive of the real estate in question, consists of personal property to the amount of about $1,000, the real estate in question being the bulk of her estate.
    CONCLUSIONS OF LAW.
    As a general rule fraud is not presumed, but must be proved by the party seeking to relieve himself on that ground. But when the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on equal terms, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation or from overmastering influence, or, on the other side, from weakness, dependence or trust justifiably reposed, unfair advantage in a transaction is rendered probable, then the burden is shifted, the transaction is presumed void, and it is incumbent upon the party in whom such confidence is reposed, to show affirmatively that no deception was used and that all was fair, open, voluntary and well understood : Beach on Modern Eq. Jur., sec. 114; Stepp v. Frampton, 179 Pa. 284; Hasel v. Beilstein, 179 Pa. 560.
    DISCUSSION.
    The defendant admits that a confidential relation existed between herself and the plaintiff, and from the appearance of the parties before the court and their testimony it is not only evident that a relation of trust and confidence existed, but also that the defendant exerted an overmastering influence over the plaintiff prior to the execution and delivery of the deed. The defendant prior to this time was employed in a telephone exchange and was sick for about three weeks and was at home with the defendant at her father’s house, during which time she persuaded the plaintiff to give her the bulk of her property after her death. From her own testimony the defendant commenced the conversation about the property. The plaintiff says that the defendant said that they were like sisters and that she would be the next to get the property. And also that she said she could not work at the telephone long any more and she thought already she would kill herself about it. That her brothers and sisters had homes of their own and she had none. The defendant also admits that the plaintiff was to have a life interest in the said house and lot and yet not one word about it was said when she employed an attorney to prepare the deed, or did she say anything when the plaintiff executed the deed. The defendant did not show in this proceeding after she admitted the existence of a confidential relation that no deception was used and that all was fair, open, voluntary and well understood by the defendant. Even after the deed was executed and delivered to her (the old lady), the plaintiff was permitted to treat this house and lot as if no transfer of title had taken place and she was kept in ignorance of the full import of the instrument she had signed in the office of Mr. Adams until the defendant placed the deed on record about a year afterwards. The defendant not only succeeded in deceiving her aunt, the plaintiff, but also her counsel of the true facts. It is idle to suggest a parol agreement as to the rents.
    May 4, 1908:
    There is not a particle of testimony that any agreement was made subsequent to the execution of the deed nor that such part of their agreement was to be left out of the deed. A fraud was perpetrated on the plaintiff, and she is entitled to a decree.
    And now, March 16, 1907, this cause came on to be heard and was argued by counsel, and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:
    ' 1. That the said deed of September 28, 1904, executed by the plaintiff and delivered to the defendant, is null and void, and passed no title to the defendant to the property therein described.
    2. That the said deed be delivered up to the plaintiff to be canceled.
    3. That the said deed be marked void upon the books in the office of the recorder of deeds for the county of Lebanon, ■wherein the same is recorded.
    4. That the defendant pay the costs of these proceedings.

      Error assigned was the decree of the court.

      Robert L. Adams, with him Paul G. Adams and J. G. Adams, for appellants.

      Samuel T. Meyer, for appellee.
   Per Curiam,

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


text:
    Rahn Township School District, Appellant, v. Lehigh Coal & Navigation Company.

      Equity — Findings of fact — Conclusiveness of findings — Principal and agent — Review—Appeals.
    On a bill in equity for an accounting of money alleged to have been received by the defendant for the plaintiff, a finding of fact that the person who actually received the money was not an agent of the defendant and had no authority, expressly or by implication, to receive it, will not be set aside by the Supreme Court, where such finding is based upon sufficient evidence, and there is no manifest error.
    Argued Feb. 19, 1908.
    May 4, 1908 :
    Appeal, No. 385, Jan. T., 1908, by plaintiff, from decree of C. P. Schuylkill Co., May T., 1905, No. 2, in equity, dismissing bill in equity in case of Rahn Township School District v. Lehigh Coal & Navigation Company.
    Before Mitchell, C. J., Fell, Mestrezat, Pother and Elkin, JJ,
    Affirmed.
    Bill in equity for an accounting. Before Marr, J.
    From the record it appeared that the plaintiff claimed that the defendant had received certain sums of money arising from granting licenses, that these moneys belonged to the plaintiff, and hád not been paid over. The court found as a fact that the payments had been made to Fergus G. Farquhar, who, although local attorney for defendant, had no authority, either expressly or by implication, to receive the moneys, and that Farquhar had retained such moneys and appropriated them to his own use'. The court dismissed the bill.

      Error assigned was decree of the court dismissing the bill.

      J. O. Ulrich, with him L. C. Scott, for appellant.

      Abraham M. Beitler and Geo. M. Hoads, with them W. G. Thomas, for appellee.
   Per Curiam,

It does not appear that complainant’s right to the money.in question is disputed as a matter of law, but there is full denial sustained by the court, that defendant ever received it. The question turned on whether Farquhar, who actually receivéd the money, did so as attorney for defendant, or in some other capacity. The court found that Farquhar had no authority, in fact, to receive it, nor did he occupy any such professional relation to defendant as to raise an implication of such authority. The evidence was carefully examined by the learned judge, the facts clearly found, and the conclusions accurately drawn. ¥e see no reason to disturb them. Decree affirmed.


text:
    Mantz, Appellant, v. Kistler.

      Execution — Identity of defendant in the execution — Sheriff’s sale — Stay of sale — Injunction—Equity—Jurisdiction—Adequate remedy at law.

    In Pennsylvania a creditor is allowed to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser.
    A person named as defendant in an execution cannot maintain a bill in equity to restrain a sheriff's sale of his property on the ground that he is not in fact the defendant, but that another person of similar or identical name is the defendant. Such a question is one of fact for the decision of a jury. The court will permit the sale to go on, and let the question raised by the person named as defendant be decided by a jury in an action of ejectment brought by the purchaser at the sale against the defendant named.
    Argued Feb. 19, 1908.
    Appeal, No. 401, Jan. T., 1907, by plaintiff, from decree of C. P. Schuylkill Co., Sept. T., 1907, No. 2, dissolving preliminary injunction in case of Francis K. Mantz v. Charles S. Kistler et al.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Motion to continue preliminary injunction.
    Bechtel, P. J., stated the case to be as follows.
    David Lorah et al. recovered a judgment against Francis Mantz et al., to No. 318 September Term, 1895, on March 28, 1907, for $1,700. This judgment has since become the property of Charles S. Kistler, and an execution has been issued thereon. The sheriff, in attempting to collect the amount of his writ, levied upon the property of Francis K. Mantz, who' came into court and filed his bill in equity to the above number and term, and obtained a preliminary injunction to restrain further action as to his property. The ground of this action is that the plaintiff in this equity proceeding says: He is not the Francis Mantz who is a defendant in No. 318, September Term, 1895, and consequently his property should not be made to answer for the above mentioned debt. It is, therefore, first, a question of identity, and, second, a question of remedy, under the contention of the defendant, as he denies the right of the plaintiff to the intervention of a court of equity. An answer has been filed, fairly raising these questions, and testimony has been taken. As this is a motion to continue an injunction, and the answer is a denial of the material allegations of the bill, the plaintiff has the laboring oar. The testimony submitted in his behalf shows that he is not the Francis Mantz, defendant in the judgment, as he contends, but the testimony of the defendant tends to contradict his evidence and tends to show the contrary. If the evidence of the defendants is to be accepted, then it rather convicts the plaintiff of the trespass which is the foundation of the judgment. A careful examination of all the evidence presented points out the existence of an honest disputed question of fact.
    The court entered a decree dissolving the preliminary injunction.

      Error assigned was the decree of the court dissolving the injunction.

      R. II. Koch, with him E. O. Eothstein, for appellants.—
    Where the process of law is being used against right and justice to the injury of another, the right of the latter to invoke the intervention of a court of equity cannot be doubted: Kreamer v. Fleming, 200 Pa. 414; Natalie Anthracite Coal Company v. Ryon, 188 Pa. 138; Taylor’s Appeal, 93 Pa. 21; Winch’s Appeal, 61 Pa. 424. It is also settled that an injunction may be granted to restrain the sale of land under a judgment which is not a lien on the land : Houston, Smith & Co.’s Appeal, 6 W. N. C. 162; Mitchell v. Forve, 5 Kulp, 501.
    May 4, 1908:

      Guy E. Farquhar and J. W. Moyer, for appellee, were,not heard.
   Opinion bt

Mr. Chief Justice Mitchell,

The substantial fact on which this case turns is the identity of the complainant with the Francis Mantz who was a party defendant to the judgment sought to be enjoined. Presumably this is a question of fact for the decision of a jury. The practice, in Pennsylvania is to allow a creditor to sell any title alleged to be in the debtor, and to try the validity of it afterwards in an action of ejectment by the purchaser: Taylor’s Appeal, 93 Pa. 21. It is not the best system, being a ,make shift, in the absence of a court of chancery, for the administration of equitable principles under the forms furnished by the common law. But it is settled as the practice in this state, and in the present case it is not altogether inconvenient, and certainly not inadequate. The remedy in equity as administered in some jurisdictions, notably our neighboring state of New Jersey, is very much superior. There the rights of parties are fought out and, adjusted in advance of a sale, so that every claimant or outside purchaser may bid at the sale with exact knowledge of what title will pass, and what disposition will be made of the proceeds. But the other practice has been long established here, and is only departed from in very clear cases: Hunter’s Appeal, 40 Pa. 194; Winch’s Appeal, 61 Pa. 424; Kreamer v. Fleming, 200 Pa. 414.

In the present case the issue as already said is upon a single question of fact, the identity of the complainant, Francis K. Mantz, with the Francis Mantz, defendant in the judgment. It is an issue, prima facie, for the determination of a jury, and the inconvenience of postponing its decision until an ejectment after the sale is not great enough to bring the case within the exceptions to the general rule.

Decree affirmed.


text:
    O’Bold’s Estate.

      Decedents’ estates — Claim of physician — Estoppel—Visiting list— Evidence.

    A physician rendered a bill in a lump sum of SI,250 to an executor for services to the decedent. Three years later at the audit he presented an itemized claim for SI,685.50. When he was on the stand he was asked whether he had made the regular charges for services rendered the decedent. He answered, “I have charged more, and I have charged less. I charge according to the ability of the man to pay me for my services.” The claimant offered in evidence a visiting list showing a record of all unpaid visits made to all his patients, including decedent. No objection was made by the executor to the admission of this list, and the claimant was examined in reference to it. Held, (1) that as the executor had not acted on the original bill, the essential element of estoppel as to the second bill was wanting; (2) that whatever objections might have been available against the visiting list as a book'of original entries, they were waived by the action of the executor; and (3) that the allowance of the larger claim of the physician by the aúditor and the court would not be reversed.
    Argued March 2, 1908.
    May 4, 1908:
    Appeal, No. 291, Jan. T., 1907, by C. J. Dellone, Executor, from decree of O. O. Adams Co., dismissing exceptions to • auditor’s report in estate of Vincent O’Bold, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of J. L. Kendlehart, Esq.,- auditor.
    The opinion of the Supreme Court states the case.

      Errors assigned were in dismissing exceptions to auditor’s report and in allowing Dr. B. N. Meisenhelder the sum of $1,685.50 and in allowing the auditor a fee of .$500.

      W. C. Sheely, for appellant.

      Donald P. MePherson, for appellee, was not heard.
   Per Curiam,

The first question undér the assignments of error is-the reasonableness of the claim of the physician for services rendered to the decedent. The claim was allowed by the auditor and the allowance was confirmed by the court. Both were in better position to judge of the validity of the claim than we are. But the physician after several demands upon him to furnish his account for services to the decedent, rendered a bill in a lump sum of $1,250. Three years later at the audit he presented an itemized claim for $1,685.50. So serious a discrepancy raised at once a presumption that the estate of the decedent was in danger of being fleeced, and called upon the auditor and court for a rigid examination and explanation, for the protection of the estate of the dead man who could no longer protect himself. And this presumption was not lessened by the testimony of the physician in response to the question : “ State whether or not the charges you have made for services rendered the decedent in this case are the regular charges for that kind of work ? A. I have charged more and I have charged less. I charge according to the ability of the man to pay me for my services.”

But the inconsistency of the claims for services though discreditable as showing a desire for special profit rather than for fair compensation, did not amount to an estoppel. The executor not having acted on the first bill the essential element of estoppel is wanting.

Where a witness or a party makes discrepant admissions or claims the result is for the jury, and in cases like the present for the auditor and the court. The auditor and court made an examination, and while it would have been more satisfactory if the physician had been held to a higher standard of professional ethics, we cannot say that the result was erroneous as a matter of law.

In regard to the evidence the learned court says: “The claimant in accordance with the practice of physicians kept a visiting list in which he made daily entries of his visits. It was not an independent record of visits and service done Mr. O’Bold, such as were excluded as book entries in Fulton’s Estate, 178 Pa. 78, but it was his record of visits in the regular course of his business as a practitioner of medicine, in which sense it made a record of not only the visits paid Mr. O’Bold but also all the unpaid visits made to all his patients.

“This visiting list being offered in evidence without objection, and accepted as correct by the accountant as to their date and number as it seems to have been ; and the claimant being called and examined in support of his claim without any objection at the time by the accountant — both the visiting list and the testimony of Doctor Meisenhelder were properly considered by the auditor in determining the question of this claim.”

Whatever objections might have been available against the visiting list as a book of original entries were certainly waived under this state of facts.

In regard to the auditor’s fee it is to be said as of the physician’s claim that the court below was in better position to determine the value of the services than we are, and its decision has not been shown to be so erroneous as to call for interference.

Decree affirmed.


text:
    Moyer, Appellant, v. United Traction Company.

      Negligence — Street railways — Collision between car and man lying on track — Evidence.
    In an action against a street railway company to recover damages for personal injuries, binding instructions for defendant are proper, where the evidence shows that the driver of a wagon who was not a passenger fell from his seat on the wagon, and lay stunned on the defendant’s track; that the motorman of an approaching car as soon as he discovered plaintiff’s position, reversed the car and applied the hand brake, when the fuse blew out; and that but for the blowing out of the fuse the car would have been stopped in time.
    Argued March 2, 1908.
    Appeal, No. 392, Jan. T., 1907, by plaintiff, from judgment of C. P. Berks Co., Aug. T., 1905, No. 124, on verdict for defendant in case of William C. Moyer v. United Traction Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the court gave binding instructions for defendant.
    Verdict and judgment for defendant.

      On a rule for a new trial Ermentrout, P. J., filed the follow-' ing opinion:
    When plaintiff’s evidence closed, a motion for a nonsuit was made by counsel for defendant. This was overruled so that the whole evidence might be spread upon the record. After full consideration, we felt it our duty to instruct the jury to find a verdict in favor of the defendant.
    An examination of the testimony and argument of counsel have not convinced us of any error in directing a verdict for the defendant. The charge contains all that is necessary to be said in the matter. ■ The plaintiff was not a passenger. The team upon which he was riding was not struck by the car, but in leaving the tracks of the company, defendant, he fell from the somewhat insecure position he occupied upon the wagon. In some way or other there was a contact between the plaintiff and the car. The evidence fails to disclose anything that the motorman could have done in the emergency that he did not do.
    As was said in the charge: “ The motorman was not bound to anticipate his falling off and being stunned upon or at the side of the track. But when the motorman discovered plaintiff’s position upon the track, he immediately reversed the car and applied the hand brake, when the fuse blew out. This timely action on the part of the motorman undoubtedly saved plaintiff’s life. Had it not been for the fuse blowing out, plaintiff would have suffered no injury, for the car would have been stopped in time. The evidence is undisputed that but for the blowing out of the fuse, the motorman’s actions would have avoided all danger. He did all that could be done at the time to avoid the accident, and nothing more was required of him.”
    The plaintiff was not a passenger. He was, therefore, subject to the burden of proof and must establish the fact of negligence on the part of the defendant by affirmative testimony, failing in which, he fails in his suit.
    Rule discharged.
    Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      May 4, 1908:

      Isaac Hiester, with him Bieser c& Schaffer, for appellant.

      C. H. Buhl, with him J. Milton Miller and B. L. Jones, for appellee.
   Per Curiam,

The judgment is affirmed on the opinion of the court below refusing a new trial.


author: Mr. Justice Fell,

text:
    Delaware, Lackawanna & Western Railroad Company, Appellant, v. Danville & Bloomsburg Street Railway Company.

      Railroads — Street railways — Grade crossings — Equity—Act of June 19, 1871, P. L. 1360.
    In determining whether a grade crossing of a railroad by a street railway shall be allowed, the question is not as to the comparative dangers of an overhead and a grade crossing, nor as to the extent of the danger of the latter, but whether it is reasonably practicable to avoid a crossing. The extent to which the risk may be reduced by the exercise of care, and the cost of constructing an overhead crossing, are not elements in determining the question.
    The Act of June 19, 1871, P. L. 1360, is in effect a mandate to the courts to prohibit grade crossings, unless it is impracticable to avoid them, and unless crossing is an imperative necessity.
    A decree allowing a grade crossing cannot be sustained on a finding that “the preponderance of the evidence establishes that an overhead crossing would be more dangerous to life and limb to operate than the present grade crossing,” and that “the crossing is not so dangerous as to warrant equitable interference by the court.”
    Argued March 3, 1908.
    Appeal, No. 25, Jan. T., 1908, by plaintiff, from decree of C. P. Montour Co., Sept. T., 1904, No. 7, dissolving preliminary injunction in case of The Delaware, Lackawanna & Western Railroad Company v. Danville & Bloomsburg Street Railway' Company and W. F. Pascoe et al., trading as The Standard Construction Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Reversed.

      May 1, 1908 :
    Bill in equity for an injunction.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dissolving preliminary injunction and permitting a grade crossing subject to regulations imposed by the court.

      11. M. Hmakley and A. E. McOlintoch, for appellant.
    The crossing was improperly allowed : Williams Valley R. R. Co. v. Ry. Co., 192 Pa. 552 ; Pittsburg, etc., R. R. Co. v. Ry. Co., 77 Pa. 173 ; Perry County R. R. Extension Co. v. R. R. Co., 150 Pa. 193 ; Penna. R. R. Co. v. Electric Ry. Co., 152 Pa. 116 ; Altoona, etc., R. R. Co. v. R. R. Co., 160 Pa. 623 ; Delaware & Hudson Canal Co. v. St. Ry. Co., 180 Pa. 636 ; Penna. R. R. Co. v. Warren St. Ry. Co., 188 Pa. 74; Mifflinville Bridge, 206 Pa. 420 ; Pittsburg, etc., R. R. Co. v. Lawrence County, 198 Pa. 1; B. & O., R. R. Co. v. Butler Pass. Ry. Co., 207 Pa. 106 ; Penna. R. R. Co. v. Bogert, 209 Pa. 589.

      B. E. Koch, for appellees.
   Opinion by

Mr. Justice Fell,

The bill in this case was for an injunction to restrain the defendant, an electric passenger railway company, from crossing at grade the tracks of the plaintiff’s road in the borough of Danville. The proposed crossing was upon the main street of the borough, which was thirty-six feet in width between the curb lines and closely built up on both sides. At this place fourteen regular trains cross the street daily and a full view of the plaintiff’s tracks cannot be had in either direction at a point more than a few feet from them. An order dissolving a preliminary injunction was reversed and the injunction reinstated to maintain the status quo until final hearing : see 211 Pa. 591. On final hearing, on the same testimony, the injunction was dissolved and a grade crossing allowed, subject to regulations imposed by the court.

The conclusion reached by the court that it is not reasonably practicable to avoid a grade crossing is not founded on a finding that it is impracticable to construct an overhead crossing at this place and to operate the defendant’s cars upon it, but upon the findings that “The preponderance of the evidence establishes that an overhead crossing on Mill Street would be more dangerous to life and limb to operate than the present grade crossing,” and that “The crossing is not so dangerous as to warrant equitable interference by the court.”

In reaching this conclusion the wrong test was applied. The question was not as to the comparative dangers of an overhead and a grade crossing, nor as to the extent of the danger of the latter, but whether it was reasonably practicable to avoid a crossing at grade. The clear and explicit mandate of the Act of June 19, 1871, P. L. 1360, is that “ If, in the judgment of the court, it is reasonably practicable to avoid the grade crossing, they shall by their process avoid a crossing at grade.” The policy of the state as here declared has been given the fullest effect in an unbroken line of cases extending from Pittsburg, etc., Railroad Co. v. S. W. Penna. Ry. Co., 77 Pa. 173, the first case that arose under the act, to Penna. Railroad Co. v. Bogert, 209 Pa. 589. The extent to which the risk may be reduced by the exercise of care, and the cost of constructing an overhead crossing, are not elements in determining the question: Delaware & Hudson Canal Co. v. St. Ry. Co., 180 Pa. 636 ; Penna. Railroad Co. v. Street Railway Co., 188 Pa. 74. The act is in effect a mandate to the courts to prohibit grade crossings unless it is impracticable to avoid them and unless crossing is an imperative necessity: Chester Traction Co. v. P., W. & B. R. R. Co., 188 Pa. 105. What is reasonably practicable is determined largely by what is physically practicable: Williams Valley Railroad Co. v. Railway Co., 192 Pa. 552.

In Pittsburg, etc., Railroad Co. v. Lawrence County, 198 Pa. 1 where the cases on the subject are considered, it was said by the present chief justice: “It must, therefore, be accepted as the settled policy of the state as administered by this court that wherever the subject comes within its jurisdiction and control, no grade crossing of a railroad over another railroad or a common highway, will be permitted except in case of manifest and unavoidable necessity.” In the later case of B. & O. Railroad Co. v. Butler Pass. Railway Co., 207 Pa. 406, our Brother Mestrezat said : “ In all cases of proposed grade crossing, therefore, the only question is whether it is reasonably practicable to avoid' it,, and if so, the statute is mandatory to prevent it. ■ In determining this question, the main purpose of the statutes, to protect life and property, is not to be ignored or disregarded. Experience teaches with absolute certainty that a 'grade crossing is unsafe and that its existence is a standing menace to human life. This fact should be kept constantly in mind in adjudicating the rights of railway cpmpanies in proceedings under the act of 1871.”

The decree is'reversed at the cost of the appellee, and it is directed that an injunction issue restraining the defendant, its officers, agents and employees, from constructing a crossing at grade of the plaintiff’s tracks on Mill street in the borough of Danville.


text:
    Reber v. Schroeder, Appellant.

      Replevin — Evidence—Certificate of stock — Practice, C. P. — Verdict— Writ of retorno habendo — Judgment—Aci of April 19,1901, P. L. 88.
    ■ In an action of replevin against an executor to recover certificates of stock, a verdict and judgment for plaintiff will be sustained where the evidence shows that the certificates were found in the decedent’s safe inclosed in a sealed envelope with a power of attorney transferring them to plaintiff, that indorsed on the envelope was a statement signed by decedent to the effect that the contents belonged to plaintiff, and were to be delivered to her at his death, and the plaintiff testifies that there had been a complete delivery of the shares to her by the decedent, and that she had placed them in his hands -for safe keeping.
    In an action of replevin, where the defendant has entered a claim property bond and retained possession of the property, a general verdict for plaintiff and judgment thereon entitles the plaintiff, since the Act of April, 19, 1901, P. L. 88, to a writ of retorno habendo, and this is the case although the jury failed to find the value of the property and damages for its detention.
    Argued March 4, 1908.
    Appeal, No. 66, Jan. T., 1908, by defendant,'from judgment of C. P. Berks Co., Aug. T., Í907, No. 53, on verdict for plaintiff in case of Sarah Reber v. Daniel E. Schroeder, executor of George F. Hagenman, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    -Affirmed.

      Trespass to recover certificates of stock of a national bank. Before Ermentrodt, P. J.
    The facts appear by the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff.

      Errors assigned were (1-12) various rulings on evidence and instructions, and (13,14) that the judgment entered on a general verdict for plaintiff was invalid.

      William B. Bechtel, for appellant.
    The defendant having given a counter bond, the plaintiff Avas not given possession of the goods and chattels replevied, and, being the successful party, it was the duty of the jury to determine the value of said bank stock to her, which value Avould have been its market value at the time of demand and refusal to deliver the certificate to her. Under the law as it stood prior to the act of 1901, where the defendant gave a claim property bond and retained the goods, the right of the plaintiff was transformed into a chose in action and the verdict for the plaintiff was properly in damages for the value of the goods as well as for the detention, being so held in Etter v. Edwards, 4 Watts, 63; Moore v. Shenk, 3 Pa. 13; and Fisher v. Woollery, 25 Pa. 197. The act of 1901 has not changed the law in this respect, but has given the plaintiff additionally, when not put in possession of the goods and when he is the successful party, the right to a writ of retorno habendo, which formerly could only be invoked by a successful defendant who had not given counter bond, so being held in Easton v. Worthington, 5 S. & R. 130.
    In this case the jury should have determined the value of the bank stock at the time of demand and refusal to deliver to plaintiff and should likewise have indicated separately the damages in their verdict, if any were claimed, so that a judgment for the aggregate could be entered pro forma. As the verdict and judgment are both simply for the plaintiff, the jury not indicating in their verdict the value of the bank stock and the amount of damages claimed, if any, no other course is left open for this court but to grant a new trial, unless, under all the evidence, the defendant is entitled to a judgment non obstante veredicto on the Avhole record: Whitehill v. Schwartz, 27 Pa. Superior Ct. 526.

      May 4, 1908 :

      C. H. Ruhl, with him J. K. Grant, for appellee.
    A reasonable construction of the act of 1901 is that the method of ascertaining the value of the goods and chattels in dispute is of a twofold character. The one most favorable to, and designed for the greater protection and security of, the successful party is to have the jury in the first instance ascertain and determine it, having regard to the person of the successful party as we have indicated; and failing in that, by the other method, whereby he is limited to the actual or market value at the time of the issuing of the writ of replevin, without damages for detention or interest on the value so ascertained ; loss to the successful party, it is true, but one of which the defeated party may not be heard to complain: Pure Oil Co. v. Terry, 209 Pa. 403.
   Opinion by

Mr. Justice Fell,

This was an action of replevin for certificates of stock of a national bank, which were in 'the name and possession of George F. Iiagenman at the time of his death, and were found in his safe by his executor, inclosed in a sealed envelope, with a power of attorney transferring them to the plaintiff. There was an indorsement on the envelope signed by the decedent as follows: “ The contents of this envelope belong to Miss Sarah Eeber, No. 19 South 2nd St., Reading, Pa., and must be delivered to her at my death.” The plaintiff did not rely upon this indorsement to establish her right to the shares, but presented testimony tending to show that there had been a complete delivery of the shares to her by the decedent, and that she had placed them in his hands for safe keeping. The issue of fact was carefully submitted to the jury, and none of the assignments of error that relate to the admission of evidence or to the charge of the court has merit.

The thirteenth and fourteenth assignments relate to the verdict and the judgment entered thereon, and give rise to questions under the Act of April 19, 1901, P. L. 88, regulating the practice in replevin. The defendant had entered a claim property bond and retained possession of the stock certificate. The verdict rendered was for the plaintiff without a finding of the value of the shares and damages for their detention, and the judgment entered was a general one in favor of the plaintiff. At common law and before the act of 1901, where the defendant retained possession of the property, the action proceeded for damages only. The property could not be recovered from him, nor could he tender it in satisfaction of the verdict. The giving of the claim property bond put an end to the plaintiff’s title, which was thereupon turned into a chose in action to be compensated for in damages. The defendant was the only party who could have a judgment de retorno habendo: Fisher v. Whoollery, 25 Pa. 197; Schofield v. Ferrers, 46 Pa. 438; Rockey v. Burkhalter, 68 Pa. 221; Morris on Replevin, 210. The act of 1901 has changed the practice in this respect, and a plaintiff who has not been given possession of the property is entitled to a writ of retorno habendo, as well as to a writ of fieri facias, to recover the value of the property and damages awarded, and costs. It is provided 'by section 5, that where judgment has been entered for the plaintiff for the want of a sufficient affidavit of defense, for a portion of the goods and chattels replevied, he may proceed to recover such goods and chattels by a writ of retorno habendo, or the value thereof, after assessment of damages on a writ of inquiry. Section 7 provides that if the title to said goods and chattels be found finally to be in a party who has not been given possession of the same, in said proceeding, the jury shall determine the value thereof to the successful party, and he may, at his option, issue a writ in the nature of a writ of retorno habendo, requiring the delivery thereof to him, with an added clause of fieri facias as to damages awarded and costs ; and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof, and the damages awarded and costs ; or he may sue, in the first instance, upon the bond given, and recover thereon the value of the goods and chattels, damages and costs, in the same manner that recovery is had upon other official bonds.”

Before the act of 1901, the verdict rendered in this case would have been of no avail to the plaintiff, because a judgment retorno habendo could not have been entered upon it: Moore v. Shenk, 3 Pa. 13; and there was no award of damages for which a writ of execution could issue. But by virtue of the act, the plaintiff is entitled to a return of the property, and she may have a writ to enforce the right. A judgment on the verdict is sufficient to sustain such a writ. She has not obtained all that she was entitled to by the trial, because of ■the failure of the jury to find the value of the property and damages for its detention, but the judgment on the verdict is not invalid.

The judgment is affirmed.


text:
    Bauer v. Fabel, Appellant.

      Contract — Wagering contract — Gambling in stocks — Margin—Check.
    In an action of assumpsit on a check given by the defendant to the plaintiff in payment of a balance due on an account between them which involved the purchase and sale of shares of stocks on a margin, the plaintiff is entitled to recover so much of the check as represents the amount deposited with the defendant as margin, where the amount representing the deposit can be clearly distinguished from the amount representing profits on the transaction which had been closed.
    Argued March 9, 1908.
    Appeal, No. 212, Jan. T., 1907, by defendant, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 21, on verdict for plaintiff in case of Jacob Bauer v. George W. Fabel.
    Before Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on a check. Before Staples, P. J.
    The court charged in part as follows :
    [But if you find that this transaction was not a legal transaction, but that under the facts, as you have heard them testified to, and as explained by the court, it was a gambling transaction, then the court instructs you, under all the testimony in this case, and that finding, that George W. Fabel was a simple stakeholder. If you find that he simply held this money, and he bought no stocks with it, and he sold no stocks, and that the plaintiff understood that that was just what he was going to do with it, or that he sent it to Sage & Company and no stocks were bought and no stocks were sold, and the money ■came back to George W. Fabel, then as far as the $2,000 was concerned, which it was testified to was margins, and included in this check of $3,260.50, it was nothing more than a stake which George W. Fabel, the defendant, held for Jacob Bauer, the plaintiff. As the court remembers the testimony it. was clearly shown, without contradiction, that this check was made up of $2,000 which was margin deposited by the plaintiff in this case on these transactions, whether legal or illegal, as you should find them, and that when George W. Fabel sent this check it was intended to pay that $2,000 back and $1,262.50 profits. As the court remembers it, there is no question about that. If it was denied in any way, I would like counsel to so state now.
    If this check was made up in such a way that the sums which it represented could not be distinguished or separated, ■you could not tell how much of it was profits on these transactions and how much was margin, we would instruct you that you could not guess at it, and therefore you could not find a verdict with regard to it.
    But the two kinds of transactions, or the two kinds of amounts that it represented being so easily ascertained, the $2,000 being money deposited on margin and the $1,260.50 being profits, there is no trouble in your minds and none in the mind of the court what should be done in the matter relative thereto.
    The Supreme Court of our state holds that where a man received money as a stakeholder, no matter whether it is received for a legal purpose or an illegal purpose, the man who pays that money to the stakeholder has the right to demand it back, and if he does not pay it back, sue and recover in a court of justice. Not even that the man should keep the identical money as a stake, and so hold it, until the matter upon which it was paid was decided, but only so it can be arrived at and distinguished, and our courts have gone further and held that gambling transactions in stocks are wagering transactions, and that the broker in that case is nothing more than a stakeholder, and he cannot resist the payment of the money to the man who deposited it there on margins, by stating that man paid it to him for an illegal purpose, and that he is not bound to pay it back. The Supreme Court, in the opinion of this court, says that a person who deposits. that money as a stake has the right to the return of it, and as the amount can be ascertained in this case, we say to you that in case you find the transactions between these parties as gambling transactions, then your verdict should be in the sum of $2,000 in favor of the plaintiff, with interest from August 24, 1906.
    You may wonder in your own minds, gentlemen of the jury, why this amount is larger than the other amount. It is larger than if you find that the transaction was a fair transaction, and the court explains to you that the reason of that is, that if you find the transactions were gambling transactions, the court must take the defendant at his own word, and as these moneys represented by the check of $2,000 were invested by him in gambling transactions, he has no right to recover from the plaintiff in this case. He must either stand by his propo-' sition in the whole or else drop it, and if he claims that the whole matter was a gambling transaction, through and through, all that he can defend against is the profits in this transaction, and those profits were $1,262.50. We think we have explained this matter now clearly to you.
    In other words, gentlemen of the jury, in order that there will be no confusion in your minds under the instruction as the court gives it to you, your verdict should be in favor of the plaintiff, either for $1,962.50, with interest from August 24, 1906, or for the sum of $2,000, with interest from August 24, 1906, as you shall decide that first proposition which was given to you by the court.] [4]
    Yerdict and judgment for plaintiff for $2,076.67. Defend! ant appealed.

      Error assigned amongst others, was above instruction, quoting it.

      Rogers L. Burnett, for appellant.
    Plaintiff comes into court with a suit in which he asks the court to assist him in consummating the illegal transactions, by not only recovering the profits of such transactions, but to compel the payment back to him of the money he.paid to Fabel, money which was the instrument by means of which the illegal profits were made, and which alone made the gambling transactions possible : Brua’s App., 55 Pa. 294 ; Waugh v. Beck, 114 Pa. 422 ; Ruchizky v. DeHaven, 97 Pa. 202 ; Dauler v. Hartley, 178 Pa. 23 ; Gaw v. Bennett, 153 Pa. 247 ; Albertson v. Laughlin, 173 Pa. 525.
    May 4, 1908 :

      Wilton A. Erdman, for appellee.
    Fabel was merely a stakeholder : Dauler v. Hartley, 178 Pa. 23.
    It is a well-settled principle of law in this state that even where the transactions are of a gambling nature, if the parties meet, treat the transactions as actual purchases and sales, ascertain the amount due, and arrange for the payment of the difference, that the illegal character of the transactions cannot subsequently be set up as a defense : Lestapies v. Ingraham, 5 Pa. 71; Allen v. Line, 11 Pa. Superior Ct. 517; Peters v. Grim, 149 Pa. 163; Repplier v. Jacobs, 149 Pa. 167; J. C. McNaughton Co. v. Haldeman, 160 Pa. 144; Taylor Co.’s Est., 192 Pa. 313 ; Anthony v. Unangst, 174 Pa. 10.
    Fabel was an agent: Smith v. Blachley, 188 Pa. 550; Baldwin Bros. v. Potter, 46 Vt. 402 ; Hertzler v. Geigley, 196 Pa. 419 ; Com. v. Shober, 3 Pa. Superior Ct. 554.
   Per Curiam,

This was an action on a check for $3,262.50 given by the defendant to the plaintiff in payment of the balance due on an account between them which involved the purchase and sale of shares of stock on margin. The money deposited as margin was $2,000, and the balance of the check, $1,262.50, represented profits on purchases and sales that had been made. The jury found that the transaction was a wagering one and by direction of the court rendered a verdict for the amount of the deposit only, with interest.

The defendant bought the stocks through a third party to whom he transferred the deposit and from whom he received back the deposit with the profits, and it is at least doubtful whether he should not have béen regarded as an agent who had received money for his principal and could not avoid liability by setting up the illegality of the transaction from which the money came: Smith v. Blachley, 188 Pa. 550 ; Hertzler v. Geigley, 196 Pa. 419. But be this as it may, the transaction in which the deposit was made was closed, and the deposit could be recovered back. In Peters v. Grim, 149 Pa. 163, Repplier v. Jacobs, 149 Pa. 167, and J. C. McNaughton Co. v. Haldeman, 160 Pa. 144, it was held that where wagering transactions in stocks had been closed and there remained nothing in the broker’s hands but the original deposit made by his principal, it could be recovered back. The same rule should apply to the deposit although the profits are in the broker’s possession, where one can be readily and clearly distinguished from the other, and the plaintiff does not require the aid of the original transaction to prove his case.

The judgment is affirmed.


author: Mr. Justice Potter,

text:
    Ridgeway Dynamo & Engine Company v. Pennsylvania Cement Company, Appellant.

      Contract — Sale—Breach of contract — Unmarketable article.

    Where a purchaser refuses to accept an article which was specially manufactured for him, and which has no markét in which it can readily be sold, the measure of damages for the breach is the difference between what it would cost to make and deliver the article, and the price which the purchaser agreed to pay for it.

      Contract — Contemporaneous oral agreement — Inconsistent agreement■ — ■ Evidence.

    A contemporaneous oral agreement alleged to have been made at the time of the execution of the original agreement, cannot be shown, where the oral agreement was inconsistent with the terms of the written agreement, and this is particularly so where the written agreement expressly stipulates that “all previous communications between said parties either verbal or written, contrary to the provisions hereof, are hereby withdrawn and annulled; and no modification of this agreement shall be binding upon, the parties hereto, or either of them unless such modification shall be in writing.
    Argued March 9, 1908.
    Appeal, No. 238, Jan. T., 1907, by defendant, from judgment of O. P. Northampton Co., Deo. T., 1905, Nó. 31, on verdict for plaintiff in case of the Ridgeway Dynamo & Engine Company v. Pennsylvania Cement Company.
    Before Pell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.

      Assumpsit for breach, of contract. Before Scott, P. J.
    At the trial when Wm. M. Beach, a witness for defendant, was called, the following offer was made:
    Mr. Smith : We propose to show by this witness that at the time the contract was executed and simultaneous with the time that the contract was executed, there was an oral understanding between the parties, which oral understanding was the inducement for the making of the written contract, that construction of these engines was not to be started until notice be given by the Pennsylvania Cement Company, and until the Pennsylvania Cement Company had furnished drawings and, certain drafts showing the foundation plans and the plans for the templet of these two engines.
    Mr. Steele: Objected to for the same reasons and for the further reasons that it is attempted to reform or set aside a written agreement, and no allegation of fraud, accident or mistake is set forth in the answer that is filed.
    The Court: Ordinarily, in the case of the execution of written agreements, a parol contemporaneous agreement or verbal understanding, varying the terms of it upon the strength of which the written agreement is actually signed, is admissible if it be the inducement solely upon which the written contract is to be carried into effect. There is in this agreement, however, the written stipulation referred to in the objection which, by its written terms, excludes the admission of any other terms than those which are herein expressed. Whether or not that would be sufficient to exclude the present offer of proof, there is nothing in the pleadings that admits such testimony for the alteration, explanation or variation of the written agreement, and it is, therefore, inadmissible: Krueger v. Nicola, 205 Pa. 38.
    To which ruling defendant excepts, and bill sealed. [4]
    The court charged in part as follows :
    [If the plaintiff, then, has failed to satisfy you that these engines didn’t have such a market value, then your verdict would be for the plaintiff for nominal damages. But if he has satisfied you that they had no market value, that there was no particular market value for these engines, they had none fixed in the market, that they were manufactured from spec’ ial designs for a special purpose, then he is entitled to recover substantial damages, and not merely nominal damages, and then it is for you to say, if you pass this point and determine that the plaintiff has suffered a loss for which he ought to recover substantial damages, it is necessary for you to say how much ; and in that event, if he be entitled to recover substantial damages then he would be entitled to recover the difference between the contract price and the actual cost and expenses that would be necessary to be employed by him to manufacture these engines and deliver them at Bath at the time stipulated for in the contract.] [3]
    Yerdict and judgment for plaintiff for $1,555.22. Defendant appealed.

      Errors assigned among others were (3) above instruction, quoting it; and (4) rulings on evidence, quoting the bill of exceptions.

      Edward J. Fox, with him James W. Fox, for appellant.—
    It is necessary, when a plaintiff seeks to recover for a breach of contract, that he should show that he has actually suffered damages, and the burden of showing the damages rests upon the plaintiff: Jones v. Jennings Bros. & Co., 168 Pa. 493; Blair v. Ford China Company, 26 Pa. Superior Ct. 374.
    In the case of an executory contract of sale of goods not specific phe rule undoubtedly is that the measure of damages for refusal to receive is the difference between the price agreed upon and the market value on the day appointed for delivery: Unexcelled Fire Works Co. v. Polites, 130 Pa. 536. Where an agreement is for the sale of goods to be manufactured the same rule applies as in the case of the sale of unspecified chattels. The contract is executory and the title does not pass until the manufacture is completed and made ready for delivery: Keeler Co. v. Schott, 1 Pa. Superior Ct. 458; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Adams Express Co. v. Egbert, 36 Pa. 360; Tufts v. Bennett, 163 Mass. 398 (40 N. E. Repr. 172).
    When a party defends on the ground that he was induced to sign by an oral stipulation, unless he so avers in his affidavit, it is defective; b.ut when the positive averments, considered with reference to the written contract, show beyond doubt that the oral agreement induced the signing of the written one, the affidavit is sufficient: Keough v. Leslie, 92 Pa. 424; Clinch Valley Coal & Iron Co. v. Willing, 180 Pa. 165; Fidelity & Casualty Co. v. Harder, 212 Pa. 96.
    May 4, 1908 :

      H. J. Steele, with him Fred H. Ely, for appellee.
    The measure of damage as laid down by the court in its charge to the jury was correct: Puritan Coke Co. v. Clark, 204 Pa. 556 ; Gallagher v. Whitney, 147 Pa. 184; Muskegon Curtain-Roll Co. v. Keystone Mfg. Co., 135 Pa. 132; Winslow Bros. Co. v. DuPuy, 208 Pa. 98; Hinckley v. Steel Co., 121 U. S. 264 (7 Sup. Ct. Repr. 875); Imperial Coal Co. v. Port Royal Coal Co., 138 Pa. 45 ; Smith v. Kaufman, 30 Pa. Superior Ct. 265 ; Collins v. Freas, 77 Pa. 493; Levers v. Van Buskirk, 4 Pa. 309; Central Penna. Telephone, etc., Co. v. Thompson, 112 Pa. 118; Smith v. Myler, 22 Pa. 36; Eisenhart v. Slaymaker, 14 S. & R. 153; Garrigues v. Harris, 17 Pa. 344; Lauchner v. Rex, 20 Pa. 464.
    The allegation and offer of proof of an oral contemporaneous contract by the appellant was defective in that there was neither allegation in the affidavit of defense or offer to prove that it was omitted from the written contract through fraud, accident or mistake: Krueger v. Nicola, 205 Pa. 38; Wodock v. Robinson, 148 Pa. 503 ; Fuller v. Law, 207 Pa. 101; American Home Sav. Bank Co. v. Trust Co., 210 Pa. 320 ; Hoffman v. R. R. Co., 157 Pa. 174; Fidelity Trust Co. v. Kohn, 27 Pa. Superior Ct. 374; Butler v. Keller, 19 Pa. Superior Ct. 472; Hallowell v. Lierz, 171 Pa. 577; Ogden v. Traction Co., 202 Pa. 480.
   Opinion by

Mr. Justice Potter,

The Ridgeway Dynamo and Engine Company entered into a written contract to furnish to the Pennsylvania Cement Company, two automatic center crank engines to be delivered for the net sum of 83,000. The contract provided for certain special features as to the main bearings and a particular form of cross head, and for certain other special parts as applied to the type of engine which was ordered ; the result of the requirements being apparently the production of an engine not in general demand and not readily salable. After the engines had been partly constructed the cement company countermanded the order, whereupon the engine company stopped the construction» work and made use of the material for other purposes. The engine company then brought this suit to recover damages for breach of the contract. The trial resulted in a verdict for the plaintiff, upon which judgment was entered, and defendant has appealed.

The first question raised by the assignments of error is as to the measure of damages. The trial judge charged the jury that if they were satisfied from the evidence that the engines were manufactured from special designs for a special purpose and had no fixed market value, the plaintiff would be entitled .to recover the difference between the actual cost of manufacturing and delivering the engines, and the contract price. The learned trial judge correctly stated the rule applicable to such a state of facts as this, where from the nature of the article there is no market in which it can readily be sold. In such case the great weight of authority is to the effect that the measure of damages is the difference between what it would cost to make and deliver the article and the price which the purchaser has agreed to pay for it. The principle is thus stated in 2 Sedgwick on Damages (8th' ed.), sec. 618, p. 269 : “Where one engaged in the performance of a contract is wrongfully prevented by the employer from completing it, the measure of damages is the difference between the price agreed to be paid for the work and what it would have cost the plaintiff to complete it. Differently stated, the rule in such case is, recompense to the plaintiff for the part performance and indemnity for his loss in respect to the part unexecuted. The plaintiff is to be placed in the same condition he would have been in if he had been allowed to proceed without interference.” This rule gives to the party which has complied with the agreement the value of his bargain. In the present instance, the amount which was lost to the plaintiff by reason of the breach of the contract was capable of being ascertained with reasonable certainty, and was, therefore, properly adopted as the measure of the damages to be recovered by it as the injured party, from the one in default.

The second question raised by this appeal appears in the fourth assignment of error. Defendant offered to show that simultaneously with the execution of the contract there was an oral understanding between the parties which was the inducement for the making of the written contract, that the construction of the engines was not to begin until notice was given by the defendant company, and certain drawings furnished showing the foundation plans, etc. Upon objection by the plaintiff, the offer was excluded, and properly so, we think. While a contemporaneous oral agreement, entered into as an inducement to the execution of a written agreement, and not inconsistent with it, may be shown in defense to a suit upon a written contract, Keller v. Cohen, 217 Pa. 522; yet in the present case the agreement which it was attempted to set up is clearly inconsistent with the written contract. Furthermore, the written agreement contained an express stipulation that “ all previous communications between said parties, either verbal or written, contrary to the provisions hereof, are hereby withdrawn and annulled; and that no modification of this agreement shall be binding upon the parties hereto, or either of them, unless such modification shall be in writing.” Under this stipulation, inserted evidently for the very purpose of preventing the introduction of any such claim as that presented by the defendant, there was no room for the admission of evidence as to any other terms than those expressed in the written contract. The trial judge was clearly right in refusing to admit proof of the alleged parol contemporaneous agreement.

The judgment is affirmed.