author: Mr. Justice Potter,

text:
    Felin, Appellant, v. Locust Realty Company, Incorporated.

      Mechanic's lien — Stipulation against liens — Change of ownership during construction — Subcontractor.
    A subcontractor on a building operation is bound by a stipulation against liens contained in the original contract between the owner and the .contractor, and he is not relieved by the fact that the property was conveyed to another party during the construction of the building, and before the contract between himself and the contractor was made; nor is he relieved by the fact that the plans and specifications submitted to him showed the name of thé new owner, inasmuch as the contract was indexed in the prothonotary’s office in the name of the contractor with whom he dealt.
    Argued March 27,1911.
    Appeal, No. 374, Jan. T., 1911, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 83, M. L. D., on verdict for defendants in case of Charles F. Felin et ah, trading as Charles F. Felin & Company, v. Locust Realty Company, Incorporated, Owner, etc., Moore & Company, Incorporated, Contractor, and Howard W. Page, Trustee in Bankruptcy of Moore & Company, Incorporated.
    Before Fell, C. J., Mestkezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mechanic’s lien. Before Brégy, P. J.
    ' The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendants.
    Verdict and judgment for defendants. Plaintiffs appealed.

      Error assigned was in giving binding instructions for defendants.

      Wayne P. Rambo, with him Ormond Rambo, for appellants.
    — Where there is a new contract after a change of ownership as to the finishing of a building even where there is waiver in a contract with a former owner, there is a right to lien: Pagnacco v. Faber, 224 Pa. 18; s. c., 221 Pa. 326.
    Appellants might well have supposed that the Locust Realty Company was a vendee under articles of agreement. In such case the vendor could not have been liened for the vendee’s improvement under sec. 4 of the Act of June 4, 1901, P. L. 431: Meile v. McCueam, 18 Pa. Dist. Rep. 675; Panner v. Staub, 18 Pa. Dist. Rep. 676.

      Preston K. Erdman, with him Charles L. Lockwood, for appellee, Locust Realty Company.
    — This case is ruled by Pennock v. Locust Realty Co., 224 Pa. 437.

      D. Howard Evans, with him Henry P. Brown, for Moore & Company, appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Potter,

In this action, which was a scire facias upon mechanic’s lien, the only defense set up was the fact that the contractor, Moore & Company, a corporation, by its agreement duly executed and filed in the office of the prothonotary, had stipulated that no lien should be filed against the contemplated building, either by itself or by any subcontractor. Jonker D. Lit was the original owner of the ground, and it was. with him, upon August 8, 1907, that Moore & Company entered into a written contract for the construction of the building. Subsequently the Locust Realty Company was incorporated, and by deed dated October 8,1907, Lit conveyed the premises on which the building in question was in course of construction, to the Locust Realty Company, and at the same time assigned to the realty company his interest in the contract with Moore & Company. The contract between the plaintiffs in this case and Moore & Company was made January 2, 1908, and the first materials were delivered by them on January 16. Upon the trial plaintiffs contended that they were not bound by the stipulation against liens in the contract between Lit and Moore & Company, but that there was a later verbal contract between the latter and the Locust Realty Company under which materials were furnished by them. The trial judge held that the plaintiffs were not entitled to recover, and directed a verdict for defendants. He gave no reason for his conclusion and filed no opinion. In Pennock v. Realty Company, 224 Pa. 437, the validity of a mechanic’s lien filed by another subcontractor in the same operation as that which is here in question, was involved. It was there held that the subcontractor was bound by the stipulation against the liens contained in the original contract, and that he was not relieved by the fact that the property had been conveyed to another party during the construction of the building and before the contract with the subcontractor was made. Our Brother Elkin, speaking for the court, there said: “In the case at bar there was no new contract. The building was erected from the beginning to completion under the original contract. The rights and duties of the parties were fixed by that contract. The materials and labor were furnished under that contract. The notice as to the waiver of liens filed of record bound every one who furnished materials or labor under that contract.”

In the present case, unless there was evidence of a new contract sufficient to be submitted to the jury, the trial judge was right in giving binding instructions for the defendants. It is not suggested that there was a new express contract; but it is argued that one may be inferred from the circumstances. We can see nothing in the evidence in this case to distinguish it upon its facts from the principle upon which the decision in Pennock v. Realty Company, supra, was based. It appears from the undisputed evidence that the building was completed in accordance with the terms, and for the price agreed upon, in the original contract with Lit. Counsel for appellants urge that in the plans and specifications submitted to them, the buildings were described as the property of the Locust Realty Company, and it is suggested that if the plaintiff had examined the mechanic’s lien docket, they would have found no contract with that company on file or indexed in its name. But in sec. 18 of the Act of June 4,1901, P. L. 431, it is provided that “The prothonotary shall enter it (the contract) in the judgment index in the name of the contractor,” in order to bind subcontractors. Appellants, as subcontractors, made their contract with Moore & Company, the original contractor, and were bound to search against it. If they had done so, they would have found the contract for the erection of the building upon which they were asked to estimate; and, further, that it contained the stipulation that no liens should be filed against the property.

It becomes unnecessary to consider the question of the constitutionality of the statute, which was raised by counsel for the defendants. From the discussions in the opinions of this court in Vulcanite Portland Cement Co. v. Allison, 220 Pa. 382, and in Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486, it appears in substance that the mechanic’s lien act of June 4, 1901, in so far as it is not clearly divergent from, and an advance upon, the old law, is valid and must be sustained. It cannot be fairly contended in the present case that the lien under consideration falls under any of the provisions of the statute which change or add to the mechanic’s lien law, as it was prior to 1901. The assignments of error are overruled, and the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Bradney, Appellant, v. Philadelphia Rapid Transit Company.

      Negligence — Street railways — Getting on mowing car — Contributory negligence.

    In an action against a street railway company to recover damages for personal injuries binding instructions for the defendant are proper where the evidence shows that the plaintiff in attempting to get on the platform of a moving car succeeded in getting his feet on the lower step, and was in the act of raising one of them to the platform when he was thrown off by the motion of the car, which was accelerated by turning on the power.
    Argued March 28, 1911.
    Appeal, No. 81, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 4,521, on verdict for defendant in case of Joseph Bradney v. The Philadelphia Rapid Transit Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Ralston, J.

      At the trial it appeared that the plaintiff was injured on December 5, 1907, about 6.20 p. m. while attempting to get on board one of the defendant’s cars.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were in giving binding instructions for defendant.
    J. Morris Yeakle, for appellant,
    cited: Powelson v. Traction Co., 204 Pa. 474; Boulfrois v. Traction Co., 210 Pa. 263; Quinn v. Transit Co., 224 Pa. 162.

      Thomas Learning, with him Charles Biddle, for appellee,
    cited: Quinn v. Transit Co., 224 Pa. 162; Hunterson v. Traction Co., 206 Pa. 568; Thane v. Traction Co., 191 Pa. 249; McDade v. Transit Co., 215 Pa.'105; Gaffney v. Traction Co., 211 Pa. 91; Rice v. Transit Co., 214 Pa. 147.
    May 23, 1911:
   Per Curiam,

While standing at a street crossing the plaintiff signaled the motorman of an approaching car to stop. He saw the power turned off, the brakes applied and the speed reduced, and as the car reached the crossing and was running slowly, he attempted to get on the front platform. He succeeded in getting his feet on the lower step and was in the act of raising one of them to the platform, when he was thrown off by the motion of the car, which was accelerated by turning on the power. His reason for not waiting until the car stopped was that he thought it would stop before the back platform came in line with the crossing and he would be obliged to walk in the snow to reach it. If it be assumed that the motorman was negligent in turning on the power, the plaintiff’s right to recover was defeated by his own negligence in attempting to get on a moving trolley car. If he had escaped the consequences of his own negligence and reached a place of safety on the car where he was injured by the subsequent negligence of the motorman, he might have sustained an action. But he did not succeed in getting on, the act was never completed and he was injured while doing what we have said is negligence per se. The case is on all fours with Hunterson v. Union Traction Co., 205 Pa. 568.

The judgment is affirmed.


author: Mr. Chief Justice Fell,

text:
    Keator v. Hunsicker, Appellant.

      Promissory notes — Affidavit of defense — Stock—Payment.
    In an action upon promissory notes the affidavit of defense set up that before the notes were given the plaintiff had in his hands a certificate for stock belonging to the defendant, and that when the notes were given defendant gave to plaintiff an option to buy certain of the shares represented by the certificate if the notes were not paid at maturity. The affidavit of defense further averred that no demand for the payment of the notes was made at their maturity, that the stock certificate was still in the possession of the plaintiff, and that the defendant believed and expected to be able to prove that the notes were paid by the exercise of the option to take shares of stock to the extent required for payment. Held, that the affidavit of defense was insufficient to prevent judgment.
    Argued March 28, 1911.
    Appeal, No. 5, Jan. T., 1911, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 1,881, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Anna W. S. Keator, Executrix of the Last Will and Testament of John F. Keator, deceased, v. Clayton M. Hunsieker.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    The facts are stated in the opinion of the Supreme Court.

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

      J. S. Freeman, for appellant.

      John F. Powell and Lester B. Johnson, for appellee, were not heard.
    May 23, 1911:
   Opinion by

Mr. Chief Justice Fell,

This appeal is from an order making absolute a rule for judgment for want of a sufficient affidavit of defense in an action by the payee against the maker of two promissory notes given for money borrowed.

It is averred in the affidavit of defense that prior to giving of the notes, the plaintiff purchased of the defendant seventy-eight shares of the stock of a corporation named, and a certificate for 625 shares, with power to transfer, was placed in the custody of the plaintiff under an agreement, the terms of which are not set forth. That when the first note was given and as a part of the same transaction, the defendant gave to the plaintiff an option to buy additional shares of the stock, if the note was not paid at maturity, at $25.00 per share and authorized him ■to take the shares from the certificate for 625 which he held, and in which was included the seventy-eight shares before sold. A like agreement was made when the second note was given, except that no price at which the stock was to be taken in payment of the note was named. It is further averred that no demand for the payment of the notes was made at their maturity, that the stock certificate is still in the possession of the plaintiff, and that the defendant believes and expects to be able to prove that the notes were paid by the exercise of the option to take shares of stock to the extent required for payment.

The right to purchase the stock was to be exercised only in the event of the nonpayment of the notes and to the extent only that it might be necessary to pay them. The transaction was simply the borrowing of money, the giving of notes therefor and the pledging of stock as collateral security with power to convert the collateral in case of default in payment, There has been no actual conversion. The certificate is in the possession of the plaintiff in the form in which it was pledged. He has exercised no right in relation to it, except to retain it, nor has he done anything to give rise to the inference of an acceptance of the stock in payment. His holding of it is by virtue of a prior and independent agreement made before the money was borrowed. The averment with respect to the application of the stock to the payment of the note is not an averment of a fact but of a conclusion and is not only unsupported by any facts or circumstances justifying it, but is inconsistent with the facts alleged in the affidavit of defense.

The judgment is affirmed.


text:
    Huey, Appellant, v. Christ.

      Partnership — Deceased partner — Accounting—Mortgages—Insurance premiums — Tax payments■ — Interest on advances.

    In an accounting between a surviving partner and the administrator of a deceased partner, the former is entitled to credit for sums of money which he paid out in renewal of fire insurance policies on properties mortgaged to secure the joint bond of the two partners; he is also entitled to credit for payments of taxes on real estate owned by the partnership, interest on the mortgage on such real estate, and payments made in reduction of such mortgage; and he is also entitled to interest on all of such advances.
    Argued March 28, 1911.
    Appeal, No. 78, Jan. T., 1911, by plaintiff, from order of C. P. No. 4, Phila. Co., March Term, 1910, No. 2,140, discharging rule for judgment for want of a sufficient affidavit of defense in case of Arthur T. Huey, Administrator of the Estate of William M. Huey, deceased, v. Amos H. Christ.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Assumpsit upon a written agreement between Amos H. Christ and the administrators of his deceased partner, William M. Huey.

      Rule for judgment for want of a sufficient affidavit of defense.
    Audenried, J., filed the following opinion:
    The plaintiff claims $19,604.40 of the defendant. It is conceded that the defense set up is good to the extent of $13,713.28. This last-mentioned amount is made up of $1,851.78, which it is averred has been paid by the defendant on behalf of the plaintiff in satisfaction of sundry bills enumerated in a schedule annexed to the affidavit of defense, and of $11,851.60, which constitutes half of the sum paid by the defendant in satisfaction of the debt secured to the Cosmos Building & Loan Association by a mortgage on No. 1209 Market street, Philadelphia.
    Against the remainder of the plaintiff’s demand, viz., $5,891.12, the defendant sets up by way of defense counterclaims aggregating $11,521.17, which may be itemized as follows:
    1. Interest on half of the amounts advanced by defendant for interest, dues, etc., on the Cosmos Building & Loan Association mortgage secured on No. 1209 Market street ............................... $4,134.48
    2. Half of the amount advanced by the defendant for premiums on fire insurance policies pledged to holders of the mortgages secured on No. 1209 Market Street........- 1,934.75
    3. Interest on half of the amount advanced by the defendant for said insurance premiums 301.89
    4. Half of amounts advanced for taxes, interest and in reduction of the mortgage debt on Cape May lots........................ 2,539.12
    5. Interest on half of the said advances on Cape May lots............................. 513.93
    6. Dividends on 12^ shares of the stock of the Philadelphia Rye Whisky Distilling Company collected by plaintiff.............. 2,078.00

      Without going into a discussion of the general subject of the right of a partner or a tenant in common to insure the property in which he is interested, and demand from his copartner or cotenant reimbursement to the extent of the latter’s proportionate part of the outlay, it is sufficient to say that in our opinion the right of the defendant to insure No. 1209 Market street at the common expense of the plaintiff and himself is quite clear. When Mr. Huey died the property was subject to the payment of two mortgage debts. The bonds which had been given to the mortgagees bound both him and the defendant, and proyided that they should keep the property insured in a specified amount for the benefit of the mortgagees. The failure of the surviving obligor to perform this condition would have resulted in a demand for the repayment of the principal of the mortgage debts, and, in default thereof, the foreclosure of the mortgages. Had Mr. Huey lived, there can be no doubt that the defendant might have protected their joint bond by performing its condition, and would have had the right, had he done so, to call on his co-obligor for the return of half of his outlay in the matter. The death of Mr. Huey did not deprive the defendant of that right. Moreover, the agreement made on April 28, 1903, between the various parties interested in No. 1209 Market street contemplated the continuance of the loans secured thereon by existing mortgages. This could not have been effected except by the renewal from time to time of the fire insurance policies pledged to secure these loans. It was, therefore, absolutely essential to the carrying out of the purposes of that agreement that the insurance should be kept alive, and we think that by necessary implication the defendant was authorized to do so at the expense of the plaintiff to the extent of one-half of its cost.
    The lots at Cape May, New Jersey, formed originally part of the assets of the firm of Huey & Christ. They were expressly excluded from the purchase which the defendant made of certain of the assets of that firm, and continued to be copartnership property. It was the right of the defendant, as surviving partner, to manage and dispose of the remaining assets of the firm, and for one-half of his necessary expenditures in preserving the common property pending sale he has a right to reimbursement against the plaintiff, as administrator of his deceased partner. The necessity of the expenditures made by him for the payment of taxes and interest cannot be questioned; nor have we any doubt, under the facts stated by the affidavit of defense, that the payment made by the defendant in reduction of the mortgage indebtedness charged on this property was equally necessary. There is nothing in the fifth clause in the agreement of April 28,1903, to justify the contention that the defendant may not claim reimbursement for his outlays in this behalf before a sale of the Cape May. lots has been effected.
    The only remaining question relates to the defendant’s counterclaims for interest on his advances made for the preservation of the partnership properties in the payment of interest, insurance premiums and mortgage debts. This requires no extended discussion. As pointed out above, the defendant had the right to make these payments. Half of them were for the benefit of the estate of his deceased partner, now represented by the plaintiff. The general rule is that on money advanced for the use of another, interest at the lawful rate is payable from the time when the advance is made. A contract to pay interest is in such case implied by the law: Sims v. Willing, 8 S. & R. 103; Harris v. Mercur, 202 Pa. 318.
    This rule was not questioned by the Supreme Court in the case of Guthrie v. Baton, 227 Pa. 339, cited by the plaintiff. All that was decided in that case was that under the agreement then under consideration interest could not be included in the computation of the “original cost” of certain land in which the parties had been dealing. There is nothing in the agreement of April 28, 1903, that excludes from the operation of the general rule above laid down any of the items of outlay on which the defendant claims interest.

      We are of opinion that, with the exception of the sixth, all of the counterclaims above enumerated constitute valid defenses to the plaintiffs claim, and that since their amount exceeds the sum of $5,891.12, for which judgment is asked, the plaintiff’s rules must be discharged

      Error assigned was the order of the court.

      Maurice Bower Saul, for appellant.

      Thos. D. McGlathery, with him H. LeGrand Ensign, for appellee.
    May 23, 1911:
   Per Curiam,

The order of the court discharging the rule for judgment is affirmed on the opinion of Judge Audenreid. •


author: Mr. Justice Mestrezat,

text:
    Wentz, Appellant, v. Blair.

      Decedents’ estates — Executors and administrators — Suit against administrator — Jurisdiction, C. P.

    1. An action by an heir of a decedent against the administrator of the decedent for moneys had and received cannot be maintained where there has been no adjudication of the estate by the orphans’ court, and there is nothing to show any promise by the administrator to pay any certain sum to the plaintiff in lieu of her distributive share in the decedent’s estate.

      Practice, C. P.- — Trial—Nonsuit.

      2. A plaintiff cannot complain of a nonsuit entered by the court before he had an opportunity of introducing all his testimony, where the record does not show that he offered any additional testimony, or had noted on the record any objection or exception to the alleged premature closing of the case, or to the rejection of any testimony.
    Argued April 10, 1911.
    Appeal, No. 129, Jan. T., 1910, by plaintiff, from order of C. P. Luzerne Co., Dec. T., 1903, No. 207, refusing to take off nonsuit in case of Elizabeth Wentz v. R. J. Blair, Ancillary Administrator of the estate of W. H. Courtright, deceased, and intervenors: Mary A. Courtright et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit for moneys had and received. Before Hall, P. J., specially presiding.
    The opinion of the Supreme Court states the case.
    At the trial the court entered a compulsory nonsuit.
    On motion to take off the nonsuit Hall, P. J., filed the following opinion:
    The counsel for the plaintiff in the brief filed on his motion to take off the compulsory nonsuit in the above case seems to have entirely misapprehended the reasons that moved the court to direct that a nonsuit be entered.
    Conceding, for the purpose of this discussion, that all of the facts alleged by the plaintiff are true and susceptible of proof; that W. H. Courtright, as executor of his wife Clarissa Courtright, embezzled the.funds' of her estate which were bequeathed to her heirs, of whom the plaintiff in this action is one; that he wrongfully converted them to his own use and removed from this state and the jurisdiction of this court, thereby committing a “devastavit” which rendered him personally liable to the plaintiff; that he afterwards admitted these facts in various letters asking for further time, and promised to pay her the amount due from her mother’s estate, and that his moral obligation so to do was a sufficient consideration for this promise and an action would properly lie in the court of common pleas to enforce it, the fact still remains that the amount due to the plaintiff does not appear in these letters and can only be properly ascertained by an adjudication in the orphans’ court. The court of common pleas has no jurisdiction to determine this question. If a citation had been issued to W. H. Courtright in his lifetime, or to his ancillary administrator after his death, and the amount of his indebtedness to this plaintiff had been adjudicated by the orphans’ court, we would have no hesitation in ruling that the amount so determined could be collected from his personal estate under the evidence offered in this case by appropriate proceedings in this court, but in the absence of such an adjudication by the proper tribunal we are of the opinion that the plaintiff’s case presents a preliminary question for determination which does not come within the jurisdiction of this court to decide.
    Under the circumstances of this particular case we are aware that this ruling works a serious hardship to the plaintiff and we would be very glad if it were possible under the law to hold otherwise, but after a most careful and serious consideration we are convinced that any other ruling would be reversible error.
    There is no merit in the plaintiff’s contention that we should not have granted the nonsuit until he had finished putting in his evidence. The nonsuit was granted upon the admission by the plaintiff’s counsel in open court that no adjudication had ever been made by the orphans’ court. This being admitted, as it ousted our jurisdiction of the case, under our view of the law, it would have been entirely useless to take up the further time of the court by the introduction of evidence on other matters.
    The motion to take off the nonsuit is, therefore, denied.

      Error assigned was refusal to take off nonsuit.

      Wm. C. Johnston, with him James R. Scouton, for appellant.
    — We submit that a nonsuit should only be granted if on the whole of the plaintiff’s evidence being submitted to the jury, the jury would not be justified in finding a verdict against the defendant: Howard Express Co. v. Wile, 64 Pa. 201; Finch v. Conrade, 154 Pa. 326; Bastían v. Phila., 180 Pa. 227.
    We respectfully submit further the following authorities on the proposition that Elizabeth Wentz, the appellant, is a creditor of W. H. Courtright: Pry’s App., 8 Watts, 253; Whelen’s App., 70 Pa. 410; Burt v. Herron, 66 Pa. 400; Smith v. Carroll, 112 Pa. 390; Bailey v. Marshall, 174 Pa. 602; Pizzi v. Nardello, 209 Pa. 1; Viosca’s Est., 197 Pa. 280; Mansfield v. McFarland, 202 Pa. 173; Kimble v. Carothers, 81 Pa. 494; Phillips v. R. R. Co., 107 Pa. 465; Pringle v. Pringle, 130 Pa. 565; Strouse v. Lawrence, 160 Pa. 421.

      William S. McLean, with him William S. McLean, Jr., for appellees.
    — There was no decree of distribution in the estate of Clarissa Courtright. Until such a decree is made an assumpsit by an heir will not lie against a personal representative: Whiteside v. White, 30 Pa. 473; Ashford v. Ewing, 25 Pa. 213; Dundas’ App., 73 Pa. 474; Yocum v. National Bank, 195 Pa. 411.

      Q. A. Gates, for R. J. Blair, administrator.
    May 23, 1911:
   Opinion by

Mr. Justice Mestrezat,

The plaintiff failed on the trial to prove the claim for which the action was brought and was properly nonsuited. The statement shows the demand was for $1,100 with interest from August 1, 1883, for moneys had and received by W. H. Courtright during his lifetime to the use of the plaintiff. As suggested by her counsel, the plaintiff claimed as a creditor of Courtright, that he promised in writing to pay her certain sums of money to extinguish his indebtedness to her, that she is not suing for a distributive share of any estate, and that the action brought by her does not involve the necessity of determining any question as to the amount of a decedent’s estate. The burden was, therefore, upon her to show to the satisfaction of the jury a certain indebtedness due from W. H. Courtright to her for which an action for money had and received would lie. In this she entirely failed. The written promises on which she relies were contained in certain letters in evidence, but a careful examination of them does not disclose that Courtright promised the plaintiff to pay her $1,100 or any other specified sum. He acknowledged that as administrator he received certain moneys belonging to the estate of the plaintiff’s mother in which the plaintiff had an interest. It further appears by the letters that he made plaintiff a proposition to pay her and the other heirs certain sums of money, but it was on the condition that they would receipt to him in full for the claims they had against him as administrator of his wife’s estate. There is nothing in the evidence to show that the plaintiff accepted the offers contained in the letters. It is not averred in the statement that W. H. Courtright filed an account as administrator of his wife, nor is it averred that a decree of distribution was made by the orphans’ court distributing the funds in his hands and awarding to the plaintiff any specific sum as administrator, and, as has been said, there was nothing to show any promise in writing by the administrator to pay any certain sum to the plaintiff in lieu of her distributive share in her mother’s estate.. Under these circumstances the court could not permit the jury to guess that Courtright was indebted to the plaintiff in the sum of $1,100 or in any other definite sum for which a verdict could be rendered in an action for money had and received.

The record does not disclose that the court below entered the compulsory nonsuit before the plaintiff had an opportunity to introduce all her testimony. It only appears by the opinion of the court ifi refusing to take off the nonsuit. We cannot, however, reverse the court for refusing to take off the nonsuit because it was granted before the plaintiff had concluded her testimony or because the court had rejected part of her testimony. The right to a nonsuit is determined on the evidence before the court and not on evidence which was offered and rejected by the court. The plaintiff should have offered her additional testimony and, if rejected, had an exception noted. If the evidence should have been admitted, the ruling would have been reversible error, although, without it, the nonsuit would have to be sustained. There is no objection or exception on the record to the alleged premature closing of the case or to the rejection of any testimony, and hence those questions cannot be reviewed on this appeal.

The facts found by the learned court below justified it in opening the judgment entered on the award of arbitrators and letting the defendants into a defense, and therefore the first and second assignments are not sustained. The learned court below has found and stated the facts and we will not discuss them here.

The judgment is affirmed.


text:
    Stegmaier v. Keystone Coal Company.

      ,■Equity — Equity pleading — Answer—Demurrer—Appeals—Interlocutory order.

    1. Under equity rule 31 a defendant is permitted to answer to a part of a bill and demur to a part, but lie may not answer and demur also to the whole bill or to the same part of it.
    2. An order overruling a demurrer is interlocutory and no appeal lies from it.
    Argued April 10, 1911.
    Appeal, No. 147, Jan. T., 1910, by Victoria Schmitt, from decree of C. P. Luzerne Co., Oct. T., 1909, No. 10,- overruling demurrer to bill in equity in case of C. E. Stegmaier and Louis S. Forve, Executors of Charles Stegmaier, deceased, and H. E. Meeker v. Keystone Coal Company and Victoria Schmitt, Executrix, Intervenor.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the appointment of a trustee.
    The court overruled a demurrer to the bill.

      Error assigned was the decree of the court.

      John McGahren, with him Edmund G. Butler, for appellant.

      William S. McLean, with him George B. McLean, forappellees.
    May 23, 1911:
   Per Curiam,

This appeal is from an order overruling a demurrer to a bill in equity for the appointment of a trustee to take the place of a deceased trustee to whom a mortgage was made to secure bonds of a corporation. The appellant answered a part of the bill and demurred to the whole of it. It was said in Barbey’s Appeal, 119 Pa. 413, that under equity rule 31, a defendant is permitted to answer a part of a bill and demur to a part but that he may not answer and demur also, to the whole bill or to the same part of it. Moreover, the order overruling the demurrer was interlocutory and no appeal lies from it: Arnold v. Russell Car & Snow Plow Co., 212 Pa. 303.

The appeal is dismissed at the cost of the appellant.


text:
    Commonwealth v. Plymouth Coal Company, Appellant.

      Constitutional law — Due process of law — Taking of property without compensation — Mines and mining — Pillars of coal between mines — Police power — Act of June 2,1891, art. Ill, sec. 10, P. L. 176.

    Section 10 of art. Ill of the Anthracite Mining Act of June 2, 1891, P. L. 176, which provides that “it shall be obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, etc.,” is a valid exercise of the police pow’er justified by the circumstances and does not violate the fourteenth amendment of the federal constitution as a deprivation of property “without due process of law,” nor sec. 10 of art. I of the constitution of Pennsylvania which provides that private property shall not be taken or applied to public use without authority of law, or without just compensation being first made or secured.
    Argued April 10, 1911.
    Appeal, No. 222, Jan. T., 1911, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1909, No. 16, on bill in equity in case of Commonwealth upon the application of David T. Davis, Inspector of Mines of the Ninth District of the First Anthracite Coal Inspection District of Pennsylvania, acting in behalf of the Commonwealth, v. Plymouth Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an injunction.
    Ferris, J., filed the following opinion:
    The Anthracite Mining Act of June 2,1891, P. L. 176, is entitled, “An act to provide for the health and safety of persons employed in and about the anthracite coal mines of Pennsylvania and for the protection and preservation of property connected therewith.”
    Section 10 of art. Ill of this act reads as follows:
    “It shall be obligatory on the owners of adjoining coal properties to leave, or cause to be left, a pillar of coal in each seam or vein of coal worked by them, along the line of adjoining property, of such width, that taken in connection with the pillar to be left by the adjoining property owner, will be a sufficient barrier for the safety of the em-' ployees of either mine in case the other should be abandoned and allowed to fill with water; such width of pillar to be determined by the engineers of the adjoining property owners,' together with the inspector of the district in which the mine is situated, and the surveys of the face of the workings along such pillar shall be made in duplicate and must practically agree. A copy of such duplicate surveys, certified to, must be filed with the owners of the adjoining properties, and with the inspector of the district in which the mine or property is situated.”
    The bill avers that the plaintiff, being the mine inspector for the proper district, gave notice to the defendant company of a meeting to be held, at which the said company was notified to instruct its engineer to be present and meet the engineer of the Lehigh & Wilkes-Barre Coal Company, the owner of an adjoining mine, for the purpose of determining the width of a barrier pillar to be left by the said two coal companies between their properties as required by the mining act, but that the defendant company refused to permit its engineer to attend such meeting, and, generally, refused to leave any barrier pillar between its workings and those of the Lehigh & Wilkes-Barre Coal Company.
    The prayers are (1) for an injunction enjoining the defendant from working its mines or coal property adjoining the mines or coal property of the Lehigh & Wilkes-Barre Coal Company without leaving a barrier pillar of coal of the thickness or width of at least seventy feet in each vein; (2) requiring the defendant to file with the mine inspector a certified copy of a survey as required by law, and (3) for general relief.
    To this bill the defendant has filed, an answer admitting the plaintiff’s averments of fact to be true, but (1) denying the necessity for such a barrier pillar, and (2) averring that sec. 10 of art. Ill of the mining act is unconstitutional.
    If the constitutionality of this provision be conceded for the purpose of discussion, and if the question of the necessity for any barrier pillar at all between these properties may be regarded as an open one, the decision of that question would seem to be committed by the statute to the tribunal of experts thereby constituted, viz., the mine inspector and the engineers of the owners of the adjoining coal properties. The purpose of the enactment is to secure the safety of the workmen in the mines. The law declares that “it shall be obligatory” on the mine owners to leave such a barrier pillar as the tribunal of mine experts referred to shall determine to be sufficient for that purpose. It is for them to fix its width. Until they say that none at all is needed for the safety of the men, the obligation imposed by the statute remains.
    It might, perhaps, be well argued that the legislature did not intend to impose upon the owners the burden of leaving a boundary pillar of unmined coal where it clearly appears to be unnecessary for the safety of the employees. If none at all were needed it would seem idle for the inspector and engineers to fix a width of, say, one foot, for the sake, merely, of literal compliance with the statutory obligation of leaving a pillar of some width. If, therefore, we may apply the maxim that the law does' not require a vain thing, there is room for the construction that, in vesting in the inspector and engineers the power to determine how wide the barrier pillar should be to secure safety, the intent of the lawmaking power was to also empower them to say, if such be the fact, that the safety of the men does not require a barrier pillar of any width at all. But, be that as it may, it is evident that the act does not warrant a mine.owner in refusing to permit his engineer to participate in determining the question of the width of, or the need for, a barrier pillar simply because he, the mine owner, does not consider one necessary. In our opinion, the law requires such a pillar to be left, unless the inspector and engineers, after due examination of the premises and consideration of the subject, determine that none is needed to secure the safety of the men employed in either mine in case the other should be abandoned and allowed to fill with water.
    The constitutionality of the boundary pillar provision of the act is attacked upon two grounds, (1) because it is said to violate sec. 10 of art. I of the Pennsylvania constitution, which provides that private property shall not be taken or applied to public use without authority of law and without just compensation being first made or secured; and (2) because it is claimed to be in conflict with the fourteenth amendment to the federal constitution, which provides that no state shall deprive any person of life, liberty or property without due process of law.
    The defendant contends that, by requiring adjoining mine owners to leave a barrier pillar of coal between their workings, the act deprives them of a property right (viz., the right to mine such coal) without compensation therefor and without due process of law.

      Both the right of eminent domain and the police power of the state are attributes of sovereignty. They are inherent rights of the supreme power, founded upon the social compact and essential to any form of government.
    In our jurisprudence the right of eminent domain is defined to be “the power of the state to apply private property to public purposes on payment of just compensation to the owner:” 10 Am. & Eng. Ency. of Law (2d ed.), 1047. The provision for payment of compensation, however, is no part of the power itself but a limitation upon its use imposed by the constitution: United States v. Jones, 109 U. S. 513 (3 Sup. Ct. Repr. 346).
    “The poliee power of the state,” says Judge Orlady in Com. v. Beatty, 15 Pa. Superior Ct. 5, 15, “is difficult of definition, but it has been held by the courts to be the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which does not encroach on a like power vested -in congress or state legislatures by the federal constitution, or does not violate the provisions of the organic law; and it has been expressly held that the fourteenth amendment to the federal constitution was not designed to interfere with the exercise of that power by ■the state (citing Powell v. Penna., 127 U. S. 678 (8 Sup. Ct. Repr. 992, 1257); Powell v. Com., 114 Pa. 265). Its essential quality as a governmental agency is that it imposes upon persons and property burdens designed to promote the safety and welfare of the public at large. The principle that no person shall be deprived of life, liberty or property, without due process of law, was embodied, in substance, in the constitutions of nearly all, if not. all, of the states at the time of the adoption of the fourteenth amendment, and it has never been regarded as incompatible with the principle, equally vital, because equally essential to the peace and safety of society, that all property in this country is held under the implied obligation that the owners' use of it shall not be injurious to the community (citing Boston Beer Co. v. Mass., 97 U. S. 25). . . . (at page 17) 'The State still retains an interest in his (the wage earner’s) welfare, however reckless he may be. The whole is no greater than the sum of all its parts, and when the individual health, safety and welfare are sacrificed, the State must suffer.’ This declaration was adopted by the United States supreme court in Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383), invalidating a state statute which limited the employment of men in underground mines, smelting works, etc., to eight hours a day.”
    By the decision from which we have just quoted, it was held that the Act of April 29,1897, P. L. 30, forbidding the employment of adult women for more than twelve hours a day, etc., was not in conflict with the constitution of Pennsylvania nor with the federal constitution, but was. a valid exercise of the police power in the interest of the public health, even though it referred to a particular class of the public, viz., adult women engaged in the kind of employment mentioned in the act, and even though it did indirectly restrain the employee’s freedom of contract.
    So also, in Com. v. Brown, 8 Pa. Superior Ct. 339, it was said by Judge Rice (pp. 351, 352) that “in the exercise of the police power of the state, it (the legislature) may enact laws in the interest of public morals, and to protect the lives, health and safety of persons following specified callings, and thus indirectly interfere with freedom of contract,” i. e., with individual liberty and the right to acquire and use property. But, of course, such classification with reference to occupation must be reasonable and dictated by a necessity springing from manifest peculiarities clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class separately that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes are, properly speaking, neither local nor special. They are general laws because they apply alike to all that are similarly situated as to their peculiar necessities: Ayars’ App., 122 Pa. 266, 281; Com. v. Gilligan, 196 Pa. 504, 510. The point we desire to emphasize here is, that, to be a valid exercise of the police power in the interest of the public safety, a statute need not necessarily be applicable to the whole body of the general public but may affect a specified class only. Thus in Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383) it was said by our highest court, speaking by Mr. Justice Brown (p. 393) that, “ while the business of mining coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia,. North Carolina and Massachusetts éven earlier than this, both mining and manufacturing were carried on in such a limited way and by such primitive methods that no special laws were considered necessary prior to the adoption of the Constitution for the protection of the operatives, but, in the vast proportions which these industries have since assumed, it has been found that they can no longer be carried on with due regard to the safety and health of those engaged in them, without special protection against the dangers necessarily incident to these employments. In consequence of this, laws have , been enacted in most of the States designed to meet these exigencies and to secure the safety of persons peculiarly exposed to these dangers. ... In (States) where mining is the principal industry, special provision is made for the shoring up of dangerous walls, for ventilation shafts, means of signaling the surface, for the supply of fresh air, and the elimination of dangerous gases (etc., etc.) .... These statutes have been repeatedly enforced by the courts of the several States; their validity assumed, and, so far as we are informed, they have been uniformly held to be constitutional.” Mr. Justice Brown then refers to certain cases where such laws were held to be constitutional under the police power, and among them, to Com. v. Bonnell, 8 Phila. 534, in which the late Judge .Harding of this court held the Mine Ventilation Act of March 3,1870, P. L. 3, to be a constitutional exercise of the police power.
    So also, in Chicago W. & V. Coal Co. v. People, 181 111. 270 (54 N. E. Repr. 961), a provision in the mining act of that state requiring the mine owner to pay the fees for the inspection of mines by a state inspector was held to be valid and constitutional under the police power, though its effect was to deprive the owner of property, to-wit, the money required to be paid as fees. It was there said, as it might equally well be said in the case at bar, “the mining of coal is recognized as a dangerous and hazardous business and is a productive industry of the greatest importance. For many years in this State many thousands of men have been engaged in that character of work and a proper safeguard of their lives and health is a matter of so great interest and necessity that no subject can be mentioned where there is a more positive necessity for the exercise of the police power than in seeking to subserve their safety. . . . (Speaking of the payment of the inspector’s fees): The expense thus incurred is imposed because of the peculiar dangers of the surrounding situation and subserves not only the interest of the miners but alike protects the mine owner; and hence the payment of the fee (in this case, the leaving of coal for a barrier pillar) can be properly imposed upon the mine owner without violating any provision of the Constitution. ” That case was followed by Consolidated Coal Co. v. People, 186 111. 134 (57 N. E. Repr. 880), where it was held that the same mining act (which, in essentials, is similar to our own) did not deny to mine operators the equal protection of the laws nor take their property without due process of law in violation of the fourteenth amendment of the federal constitution.
    Still closer in its facts to the case now before us is Mapel v. John, 42 W. Ya. 30 (24 S. E. Repr. 608, 32 L. R. A. 800). There the mining act in question provided, inter alia, that “no owner or tenant of any land containing coal shall open, or sink, or dig, excavate or work in any coal mine or shaft on such land, within five feet of the line dividing said land from that of another person or persons, without the consent in writing of every person inter-rested in, or having title to such adjoining lands,” etc. This provision was claimed to be unconstitutional as being an infringement of the rights of private property. It was held to be a proper exercise of the police power and not unconstitutional in the respect claimed, the court saying: "This is no undue assumption of the right to apply the police power to a subject which does not fall within it; for regulations (on this and other subjects mentioned) have long been recognized as wholesome and reasonable, and as fit subjects for the exercise of the police power, as tending to preserve the rights of the citizen and promote the welfare of the Commonwealth. The mining of coal is one of the largest industries carried on in the State. In mining, proper support and ventilation are necessary .... for the health and safety of the miner engaged in a dangerous employment, and for that reason the public welfare requires it. . . . This rib of solid coal not to be mined into by either of the adjoining owners was to be contributed by each in equal parts for the mutual benefit of each, for the protection of the surface, to secure independent systems of ventilation, drainage and workings, and in aid of an industry so great and widely diffused that the State as a whole is interested therein. , . . This regulation works no hardship on one for the benefit of another, but is impartial, just and reasonable, imposing a common burden for the benefit of all such owners. ”
    The police power is distinguished from the right of eminent domain in that the state, by exercising the latter right, takes private property for public use, thereby entitling the owner to compensation under the constitution, while the police power, founded as it is on the maxim "sic utere tuo ut alienum non lsedas, ” is exerted to make that maxim effective by regulating the use and enjoyment of property by the owner, or, if he is deprived of his property altogether, it is not taken for public use, but rather destroyed in order to conserve the safety, morals, health or general welfare of the public, and in neither case is the owner entitled to compensation, for the law either regards his loss as damnum absque injuria, or considers him sufficiently compensated by sharing in the general (and, in this case, also the specific) benefits resulting from the exercise of the police power: 22 Am. & Eng. Ency. of Law (2d ed.), 916, and cases there cited. Por example, in the case at bar, the state does not take the coal in the barrier pillar and convert it to a public use, but leaves it in the ownership and possession of the adjoining mine owners. The coal itself is not taken. The property right affected by the statute is not ownership, but use, of the material thing — the right to mine it out. . Nor does the state take that right for public use. The act does not transfer the right to mine out the coal from the owner to some one else, for the public benefit, but prohibits that right from being exercised by anyone — that is, destroys it, to prevent a possible calamity, to-wit, the flooding of mines, and to protect the lives of that class of the general public whose safety would be thereby endangered, and, incidentally, to conserve the mine property of the owners themselves. In this latter aspect of the case the destruction of the right to mine the coal bears some analogy to the destruction of buildings to prevent another sort of calamity — a conflagration. True, in the latter case the disaster is imminent, while here it is uncertain; so that perhaps a closer analogy in that respect would be the statute law requiring fire escapes to be placed on certain structures in order to avert a possibly remote catastrophe. Such laws were held to be a valid exercise of the police power of the state in Fidelity Insurance Trust & Safe Dep. Co. v. Fridenberg, 175 Pa. 500, 507, 508.
    The enactment here in question does not authorize a taking of property for public use, is not an exercise of the right of eminent domain, and, therefore, is not unconstitutional, because of failure to provide for compensation; but it regulates the use Of tangible property — the coal in the pillar — by requiring the owner to use it (negatively by leaving, it unmined) as not to injure the rights of others, or, in another aspect of the ease, does not affect tangible property at all, but destroys an intangible property right (that of mining out the pillar coal) in the interest of the public safety. In either case it is, in our opinion, an exercise of the police power, justified by the circumstances, and not violative of either the state or the federal constitution.
    By agreement of counsel this case is to be determined as upon final hearing, the depositions taken for use on motion to continue the preliminary injunction to be considered as evidence produced in open court on such hearing. In pursuance of this agreement of counsel, and upon admissons contained in the answer, and from the testimony, we make the following
    FINDINGS OF FACT.
    1. The plaintiff is the mine inspector of the ninth sub-district of the first anthracite coal inspection district of Pennsylvania; and the Plymouth Coal Company, defendant, and the Lehigh & Wilkes-Barre Coal Company are mining corporations of this commonwealth, each employing more than ten persons.
    2. The said two coal companies are the owners, proprietors, lessees and occupiers of adjoining coal properties in the borough of Plymouth, Luzerne county, Pennsylvania, and within the limits of the said subdistrict of the first anthracite coal inspection district.
    3. The plaintiff, as mine inspector, gave to the president of the defendant company a written notice dated August 31, 1909, stating that a meeting would be held at the former’s office on September 2, 1909, for the purpose of deciding upon the width of a boundary pillar of coal to be left between the coal properties of the said two companies, pursuant to the provisions of sec. 10 of art. Ill of the anthracite mining act of 1891, a copy of said section being embodied in the notice, and requested that the defendant’s engineer be instructed to attend such meeting to consult with the engineer of the Lehigh & Wilkes-Barre Coal Company for the purpose aforesaid.
    4. The defendant company declined to permit its engineer to attend such meeting, and refuses to leave any unmined coal as part of a boundary pillar between its coal property and that of the Lehigh & Wilkes-Barre Coal Company, claiming a legal right to mine to the boundary line of its property, and denying the constitutionality of sec. 10, art. Ill, of the said mining act.
    5. No determination of the width of, or necessity for, such boundary pillar had been made, as required by the act, up to the time of filing the bill in this case, nor has it been made since, so far as the court is advised.
    CONCLUSIONS OP LAW.
    1. Sec. 10 of art. Ill of the Anthracite Mining Act of June 2, 1891, P. L. 176, is a valid exercise of the police power of the state, and is not in conflict with the constitution of the United States nor with the constitution of Pennsylvania.
    2. That enactment requires a boundary pillar of coal to be left unmined between the mine workings of the defendant company and the Lehigh & Wilkes-Barre Coal Company, of such width as the proper mine inspector and the engineers of the said two companies shall deem necessary to the safety of the men employed in either mine in case the other should be abandoned and allowed to fill with water, unless, after due investigation and consultation, they shall decide that no such barrier pillar is required to insure the safety of such employees upon the happening of the contingency stated in the act. The same act requires the making by said engineers and inspector of duplicate surveys of the face of the workings along such pillar, and the filing of a copy of the same with the owners of the adjoining properties and with the mine inspector.
    3. The preliminary injunction heretofore granted should be continued until the width of such a boundary pillar, or the absence of necessity for one, shall have been determined by said inspector and engineers and surveys made and filed as required by the act, or until they shall duly decide that no such pillar is needed for the safety of the employees of either mine.
    4. The costs of this proceeding should be paid by the defendant.

      Error assigned was decree entered in accordance with the conclusions of law.

      Wm. C. Price and F. W. Wheaton, with them John T. Lenahan, for appellant.
    — Sec. 10 of the Act of June 2, 1891, P. L. 176, violates the provisions of the fourteenth amendment to the federal constitution, which provides that “no state shall deprive any person of life, liberty or property without due process of law”; also that it violates sec. 10 of art. I of the constitution of Pennsylvania^ which provides that private property shall not be taken or applied to public use without authority of law or without full compensation first made or secured: Philadelphia v. Scott, 81 Pa. 80; St. Louis v. Hill, 116 Mo. 527 (22 S. W. Repr. 861, 21 L. R. A. 226); Rutherford’s Case, 72 Pa. 82; Hancock v. Wyoming Borough, 148 Pa. 635; Kuntz v. Sumption, 117 Ind. 1 (19 N. E. Repr. 474, 2 L. R. A. 655); San Mateo County v. R. R. Co., 13 Fed. Repr. 722; Stuart v. Palmer, 74 N. Y. 183; In re Jensen, 28 N. Y. Misc. 378 (59 N. Y. Supp. 653).

      Evan C. Jones, with him Thomas H. Atherton, for appellee.
    — The act is constitutional: Holden v. Hardy, 169 U. S. 366 (18 Sup. Ct. Repr. 383); Com. v. Coal Co., 29 Leg. Int. 213; Com. v. Kingston Coal Co., 6 Kulp, 241; Maple v. John, 42 W. Va. 30 (24 S. E. Repr. 608); Powell v. Penna., 127 U. S. 678 (8 Sup. Ct. Repr. 992, 1257); Boston Beer Co. v. Massachusetts, 97 U. S. 25; Howells Mining Co. v. Grey, 148 Ala. 535 (42 So. Repr. 448); Consolidated Coal Co. v. People, 186 Ill. 134 (57 N. E. Repr. 880).

      May 23, 1911:
   Per Curiam,

The decree appealed from is affirmed on the opinion of Judge Ferris.


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    Nowlis, Appellant, v. Hurwitz.

      Practice, C. P. — Trial—Charge—Misstatement in charge — Duty of counsel.

    An error in the statement of testimony in a charge should be called to the attention of the judge before the jury retires in order that it may be corrected. The same rule applies where the error is as to the law, and it is evident that it was inadvertently made because in conflict with other instructions given and with the whole trend of the charge.
    Argued April 10, 1911.
    Appeal, No. 248, Jan. T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1907, No. 401, on verdict for defendant in case of Wm. Nowlis v. Joseph Hurwitz..
    Before Fell, C. J., Mestrezat, Potter, Elkin, and Moschzisker, JJ. •
    Affirmed.
    Assumpsit for salary. Before Garman, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was the instruction referred to in the opinion of the Supreme Court.

      Frank A. McGuigan, for appellant.

      Evan C. Jones, with him Andrew Hourigan, for appellee.
    May 23, 1911:
   Per Curiam,

This was an action to recover salary for forty-nine weeks under an express contract of employment at $50.00 per week for an indeterminate period. The defendant denied the employment and alleged that the plaintiff was his partner in the business in which the services were rendered. There was no dispute in relation to the time of service.

The main ground of complaint is that the charge contained the instruction that unless the evidence showed that the plaintiff had worked forty-nine weeks he was not entitled to recover anything. This instruction was clearly erroneous since no period of service was provided for in the express contract set up by the plaintiff. The mention of a fixed period as essential to any recovery was inadvertently made in the earlier part of the charge. It was followed by the instruction many times very clearly repeated that the only question for the jury was whether there was an employment or a partnership and that if an employment was found by the jury the verdict should be for the full amount claimed. Taking the charge as a whole, there is no reason to believe that the jury was misled. We have repeatedly held that an error in the statement of testimony in a charge should be called to the attention of the judge before the jury retires in order that it may be corrected. The same rule should apply where the error is as to the law and it is evident that it was inadvertently made because in conflict with other instructions given and with the whole trend of the charge.

The judgment is affirmed.


text:
    North Mountain Water Supply Company v. Troxell, Appellant.

      Equity — Injunction—Preliminary injunction — Final decree — Water company.

    Where a water company files a bill in equity in which it alleges a great scarcity of water, and prays for an injunction to compel the opening of a dam so that the water of a lake might be released into the stream below, to the amount of a number of gallons stated, and the court grants a preliminary injunction directing the release of water as prayed for, the court cannot in its final decree, after the emergency requiring the preliminary injunction had passed away, direct that the injunction shall “stand in force to give similar relief whenever a similar emergency shall arise;” and this is especially so where there is no prayer in the bill for such a decree.
    Argued April 10,1911.
    Appeal, No. 276, Jan. T., 1910, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1908, No. 22, on bill in equity in case of North Mountain Water Supply Company v. E. R. Troxell et al.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Bill in equity for an injunction.
    The facts are stated in the Opinion of the Supreme Court.

      Error assigned among others was the final decree of the court, quoted in the opinion of the Supreme Court.

      J. B. Woodward and W. S. McLean, for appellants.

      Paul Bedford and George R. Bedford, with them Henry W. Palmer, for appellee.
    May 23, 1911:
   Opinion by

Mr. Justice Mestrezat,

We think the learned court erred in entering a final decree that “the (preliminary) injunction should stand in force to give similar relief whenever a similar emergency shall arise. ” There was no prayer in the bill for such relief and the emergency, the only ground for issuing the preliminary injunction, having passed, the bill should have been dismissed.

The plaintiff filed the bill on September 19,4908, averring, inter alia, that by reason of the extraordinary, prolonged and unprecedented drouth, extending over a period of some three months, the streams tributary to Harvey’s Lake had practically dried up, and unless plaintiff company could immediately make use of the waters of Harvey’s Lake, substantially equivalent to the outflow when the dam was closed on June 12, its consumers in and about the borough of Nanticoke would within five days be without water, “ and there is no other way by which the lack could be supplied.” The bill prayed that, owing to the exigencies of the case, an injunction might issue, commanding the defendants to open, or permit to be opened, the gates of the dam at the outlet of Harvey’s Lake to allow the outflow of water from said lake equivalent to 3,000,000 gallons each day, and that the defendants be enjoined from preventing the outflow of that quantity of water from the lake. A preliminary injunction was issued as prayed for. The effect of the injunction, as stated in the opinion of the learned judge, was “simply to permit the flow from the lake into the creek, of water now held back by the dam, which without the dam would long ago have gone down the creek to be used or wasted. ” The court further said in its opinion in continuing the preliminary injunction that “we decide the matter at the present stage largely upon the public interest involved, and expressly upon the understanding that the private right to claim damages shall not be prejudiced;” and the decree continuing the injunction directing the release of 3,000,000 gallons of water provided that “the release of water shall be permitted only for such time and to such extent as the present emergency and scarcity of water continues, subject to termination sooner upon application and cause shown at any time. ” The final decree entered October 6, 1909, was as follows: “That the preliminary injunction was properly granted on September 19, 1908, and continued on September 28, 1909, upon the conditions then prescribed, and in view of the emergency then existing; and while such emergency has now passed away, the injunction will stand in force to give similar relief whenever a similar emergency shall arise; each party to pay just the costs which they have respectively incurred.”

The correctness of the decree awarding the preliminary injunction is not now before us and need not be determined. It was presented for our consideration in North Mountain Water Supply Company v. Troxell, 223 Pa. 315, and, for the reasons stated in the opinion, the decree was affirmed. The merits of the case were not considered. The final decree proper is therefore that “the injunction will stand in force to give similar relief whenever a similar emergency shall arise, each party to pay just the cost which they have respectively incurred.” This decree is manifestly erroneous. The prayer of the bill was granted and the decree continuing the injunction provided that “the release of water shall be permitted only for such time and to such extent as the present emergency and scarcity of water continues.” The defendants having opened the gates of the dam and the avowed purpose of the injunction having been accomplished by permitting “the flow from the lake into the creek, of water now held back by the dam, which without the dam would long ago have gone down the creek to be used or wasted, ” and the emergency and scarcity of water, assigned as the reason for granting the preliminary injunction having passed, it is apparent that the final decree should not have continued the injunction. We did not pass on the merits of the preliminary injunction when the case was here before, and if “a similar emergency shall arise” hereafter and plaintiff again attempts to procure an injunction for a like purpose, this record should not deprive the defendants of an opportunity to have the rights of the parties judicially determined. The trial judge concedes that in continuing the preliminary injunction he decided the matter “largely upon the public interest involved, and expressly upon the understanding that the private right to claim damages shall not be prej udiced. ’ ’ It appearing that at the date of the final decree there was no occasion for issuing or continuing the injunction as prayed for in the bill, the decree was erroneous, and, therefore, in entering the final decree there was no necessity for determining the rights of the parties to the waters of the lake and creek or the right of the defendants to. maintain the dam. The decision of those questions may well await an occasion when their judicial ascertainment in an appropriate action is required to determine the issue between the parties.

The decree is reversed and the injunction is dissolved, each party to pay the costs which they respectively incurred in the court below, and the appellee to pay the costs of this appeal.


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    Wise, Appellant, v. Martin.

      Decedent’s estate — Claim for services — Nursing—Evidence—Contract.
    In an action against a decedent’s estate to recover $25.00 per week for nursing decedent during the last months of his life, where it appears that the plaintiff was employed during the same period as a domestic for wages at $2.00 per week, she cannot recover unless she shows that she had an express contract with the decedent to pay her for the nursing, and the question as to whether such a contract was made cannot be submitted to the jury where there is no evidence except loose declarations made by the decedent to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions and testamentary intentions not carried out.
    Argued April 17, 1911.
    Appeal, No. 161, Jan. T., 1910, by plaintiff, from judgment of Superior Court, Oct. T., 1909, No. 52, reversing judgment of C. P. Clearfield Co., May T., 1908, No. 180, on verdict for plaintiff in case' of Jennie Wise v. A. F. Martin, administrator.
    Before Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit to recover compensation for nursing decedent. Before Ormerod, P. J., specially presiding.
    The facts appear in the opinion of Morrison, J., as follows:
    The plaintiff brought this action to recover the value of her services nursing Samuel MeCloskey, deceased, as she alleged, for about one and one-half years of the latter part of his lifetime and until twelve days before his death. She recovered a verdict and judgment thereon for $900. During all of the time she did the alleged nursing she was in the employ of the decedent as a domestic in consideration of $2.00 per week or $10.00 per month, and she was paid for her work as a domestic in full. At the trial the defendant’s counsel presented a written point asking for a binding instruction in favor of the defendant. This was refused, and an exception noted for defendant. After verdict, the same counsel moved the court for judgment non obstante veredicto upon the whole record, and this was refused and an exception noted for defendant and judgment entered on the verdict. Therefore, the question of the sufficiency of the evidence to sustain the verdict is squarely raised by the first and second assignments of error and also by the third.
    The declaration sets up a right to recover upon a quantum meruit, and an express contract is not averred. This under the decisions, perhaps, does not necessarily prevent a recovery, provided the evidence clearly raises an implied contract by showing that the plaintiff and McCloskey both understood that the nursing was not embraced in the contract for domestic service, but that it was to be paid for on the basis of its value.
    It will be noted in the present case that the plaintiff and McCloskey were not related either by consanguinity or affinity: Smith v. Milligan, 43 Pa. 107; Weaver’s Est., Paul’s App., 182 Pa. 349; Harrington v. Hickman, 148 Pa. 401. But in the latter case it was only held that the services rendered by the plaintiff could, in the absence of any agreement fixing a price upon them, have been recovered for upon a quantum meruit. There was positive testimony of a declaration of the decedent that the plaintiff was to be paid for her services as nurse. The ruling there is that a recovery might be had upon a contract and that the amount thereof could be fixed as the value of the services.
    In Pollock v. Ray, 85 Pa. 428, Mr. Justice Sharswood said: “Claims of this character against the estates of decedents, resting on mere oral testimony of declarations or admissions, are very dangerous, and ought certainly not to be favored by the courts.” In Wall’s App., Ill Pa. 460, Mr. Justice Green, in closing his opinion for the court, on p. 471, said: “Claims of this nature against dead men’s estates resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject, and we feel that the present occasion is one which demands both their repetition and their application.”
    It may be conceded that under the evidence in the present case the jury could find that $10.00 per month was inadequate compensation for the labor which the evidence tends to show was performed by the plaintiff. But in view of the character of the plaintiff’s claim, and the fact that she was steadily under the employment of the decedent, for a long period of time, at $2.00 per week, and received her pay in full, and that she also received more than $100 from the Odd Fellows for her special care of McCloskey, and the further fact that her claim was not presented until after the lips of Samuel McCloskey and his wife were closed in death, we are not at liberty to permit our sympathies to obscure the legal principles established for the disposition of such'cases, by a long line of decisions of the Supreme Court, as well as by numerous decisions of this court.
    The present case bears the earmarks of one of those dangerous cases so often commented upon by the Superior Court. This plaintiff had been in the employ of the decedent for a long time without any bargain for more than $2.00 per week, and we cannot find in the testimony any sufficient evidence to warrant a jury in finding that there was even an implied contract to pay her more than the stipulated sum. It is true that there was considerable loose talk by McCloskey to other persons about her services and that they never could pay her for the same, and again, that she would have to be paid at some indefinite time in the future. But there is also evidence on the part of the plaintiff, that she was told that they were not able to pay her more than the $2.00 per week, or at the most $10.00 per month. There is considerable evidence that she was expecting to be rewarded by a legacy from Mrs. McCloskey and after the death of the latter, and after it was found that the plaintiff was not remembered in her will, the plaintiff quit taking care of McCloskey and left him about twelve days before his death. There is no evidence of any agreement with the plaintiff that she was to have a legacy. Nor is there any satisfactory evidence that the plaintiff ever agreed with McCloskey that she would nurse and care for him and receive her compensation therefor in the future.
    It is to be noticed that this plaintiff seems only to have been accustomed to receive $2.00 per week for her services; she not being a trained nurse, was willing soon after the death of Mr. McCloskey and his wife to fix up and present to the administrator a claim of $25.00 per week, as a nurse, amounting to $1,950, upon which she admitted a credit of $10.00 from some source and a credit of $105.74 from the Odd Fellows, and she actually attempted to collect the balance and succeeded in recovering a verdict and judgment for $900. In our opinion, .this case, as it appears from the evidence in the record, ought not to have been submitted to the jury.
    Counsel for the plaintiff appear to rely especially on Harrington v. Hickman, 148 Pa. 401, but that case reversed the court below for refusing to submit to the jury the positive evidence of a witness that the decedent said to him: "I have promised her that she shall be paid by my executors when I am gone for waiting on nie. ” ■ If a jury believes this evidence, it established an express contract.

      In Ranninger’s App., 118 Pa. 20, cited by plaintiff’s counsel, the Supreme Court expressed some doubt on the plaintiff’s right to recover, but affirmed the decree because the “auditor upon an examination of the whole case has found the facts essential to her recovery, and these findings have been approved by the court. The findings of an auditor when so approved will not be set aside except for flagrant error. ”
    In Eichelberger’s Est., 170 Pa. 242, cited by plaintiff’s counsel, there was proof of an express contract for the payment of the plaintiff for extra services rendered.
    In Ranck v. Albright, 36 Pa. 367, the plaintiff was employed at a fixed compensation as housekeeper and domestic servant, but it appears that she was required to perform much more work than was anticipated at the time she was hired. In reversing the judgment of the court below the Supreme Court said: “In the absence of any proof of a new contract, the law presumes that the plaintiff continued at service until she left, at the same wages at which she commenced. And this presumption is not destroyed by the fact, that she was required to do more work than she at first anticipated, in consequence of the defendant’s resumption of the active labors of farming. If she was dissatisfied with the original arrangement she should have demanded additional compensation.”
    In the late case of Grossman v. Thunder, 212 Pa. 274, the Supreme Court in an opinion by Mr., Justice Elkin appears to have settled the question that, “A domestic and nurse in the home of the testatrix, having received fixed wages for her services as such, cannot recover in this action for alleged extra services in the absence of an express contract to that effect or an agreement to provide for such compensation by a legacy. The evidence is not sufficient to support either contention. Loose declarations made to outside parties, indefinite understandings, suggested gratuities, anticipated benefactions, and testamentary intentions not carried out, about which there is some vague and unconvincing testimony, are not sufficient to .establish an express contract, either to pay for the extra services at the death of the testatrix or to provide for such compensation by a legacy.” That case is substantially the same as the case in hand. In each the plaintiff was paid in full as per contract. The plaintiff here certainly did not agree to remain and nurse McCloskey on the footing of a legacy, although it is quite clear that she anticipated the legacy, nor can we find from the evidence that she agreed to remain and nurse McCloskey on a contract for compensation in addition to the $10.00 per month, which she received.
    Our own case of Moore’s Est., McClure’s App., 12 Pa. Superior Ct. 599, is in harmony with Grossman v. Thunder, 212 Pa. 274. In that case we said, by Beaver, J.: “The question recognized on all hands as being the important one is, Was there a distinct contract for the payment of increased compensation different from that originally entered into between the parties? We cannot find anywhere in the case the clear and explicit evidence upon which such a contract should rest.” To the same effect is Howard v. Drexler, 14 Pa. Superior Ct. 59, and these cases are followed by Piersol’s Est., 27 Pa. Superior Ct. 204, where the same doctrine is reaffirmed.
    We sustain the first, second and third assignments of error and the judgment is reversed.
    Rice, P. J.,, dissenting:
    It seems to me that the reasoning of the opinion of the learned trial judge, overruling themotion for judgment non obstante veredicto, and the recital of evidence contained therein, vindicate his conclusion that there was sufficient evidence to warrant submisson to the jury of the question, whether there was a contract whereby the plaintiff was to receive payment for her services as nurse as distinguished from her services as a domestic. It is not a case where the plaintiff’s demand rests only on the fact that she rendered valuable services and a bare inference therefrom that it was not intended to be gratuitous, nor does her demand, if the evidence be believed, rest only on the declarations of the decedent in her absence, but has the support also of declarations made in her presence, which she might fairly and justly interpret as expressing his intention that she should be compensated. The evidence of declarations made to others, even if not sufficient standing alone to justify a finding that there was a contract, was competent: Harrington v. Hickman, 148 Pa. 401, and taken in connection with the evidence as to what was said in her presence and all the circumstances was sufficient to carry the question to the jury. I am constrained, therefore, to dissent from the judgment about to be entered.
    Judge Henderson and Judge Head authorize me to say that they join in this dissent.

      Error assigned was in reversing judgment of the court below.

      A. M. Liveright, for appellant.

      Roland D. Swope, for appellee.
    May 23, 1911:
   Per Curiam,

The judgment of the Superior Court is affirmed on the opinion of a majority of that court as written by Judge Morrison.


text:
    Pierce v. Lehigh Valley Coal Company, Appellant.
    (No. 1)

      Mines and mining — Deposit of culm — Damage to land.

    1. In an action by a landowner against the proprietor of a mining operation to recover damages for culm deposited on plaintiff’s land by a stream, where there is evidence that the culm in very large quantities was deposited on plaintiff’s land from the defendant’s mine, the plaintiff’s case is for the jury, although there may be evidence that culm from the mines of other owners was also deposited upon plaintiff’s land. In such a case it is for the jury to determine to what extent the culm deposited by the defendant in the stream damaged the plaintiff’s land.

      Appeals — Failure to assign errors.

    2. An appellant may not complain of a ruling by the court below sustaining objections to offers of proof where no exceptions are taken on the trial to such rulings and they are not assigned for error on the appeal.
    Argued April 11, 1911.
    Appeal, No. 1, Jan. T., 1911, by defendant,, from judgment of C. P. Luzerne Co., March Term, 1904, No. 179, on verdict for plaintiff in case of Harry W. Pierce v. Lehigh Valley Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Ferris, J.
    The facts appear in the opinion of the Supreme Court and in the report of Pierce, Appellant, v. Lehigh Valley Coal Company, 40 Pa. Superior Ct. 566.
    The defendant submitted the following point:
    1. If the jury believe that any other culm than that which came from the defendant’s operations got upon the plaintiff’s land in the flood of 1902, the defendant being liable only for the damage done by its own culm, and there being no evidence of the proportion of the defendant’s culm to the whole amount upon the plaintiff’s land from which the jury could make such an apportionment, the verdict must be for merely nominal damages. Answer: The fourth point we are unable to affirm as it is expressed, and we therefore deny it, and it is not read. [1]
    The jury rendered a verdict in favor of the plaintiff for $9,120 calculated as follows:
    Total damage $15,500, per cent to Lehigh Valley Coal Company at forty per cent, $6,200; loss by delay in payment of damage, $2,920.
    The court afterwards set aside the allowance of $2,920 awarded as compensation for delay, and entered judgment on the remainder of the verdict. Defendant appealed.
    ■ Errors assigned were (1) refusal of defendant’s fourth point as above and (2) that the verdict was excessive.

      J. B. Woodward, with him F. W. Wheaton and John T. Lenahan, for appellant,
    cited: Little Schuylkill Navigation R. R. & Coal Co. v. Richards, 57 Pa. 142; Seely v. Alden, 61 Pa. 302; Howard v. Traction Company, 195 Pa. 391; Leidig v. Bucher, 74 Pa. 65; Gallagher v. Kemmerer, 144 Pa. 509; Sipe v. Pennsylvania Railroad Co., 219 Pa. 210.

      William S. McLean, with him John A. Opp, for appellee.
    —Although the difficulty of separating the damage from each independent cause may be great, it does not change the nature of the tortious act of the defendant, or relieve him from liability: Gould v. McKenna, 86 Pa. 297; Little Schuylkill Navigation R. R. & Coal Co. v. Richards, 57 Pa. 142; Seely v. Alden, 61 Pa. 302; Pierce v. Lehigh Valley Coal Co., 40 Pa. Superior Ct. 566; Elder v. Coal Co., 157 Pa. 490; Gallagher v. Kemmerer, 144 Pa. 509; Hindson v. Markle, 171 Pa. 138; Hoffman v. Coal Co., 16 Pa. Superior Ct. 631; Bricker v. Conemaugh Stone Co., 32 Pa. Superior Ct. 283; Little Schuylkill Navigation R. R. & Coal Co. v. French, 81* Pa. 366; Lentz v. Carnegie Bros. & Co., 145 Pa. 612.
    May 23, 1911:
   Opinion by

Mr. Justice Mestrezat,

The defendant alleges the court erred in refusing to instruct the jury that there was no evidence from which they could apportion the defendant’s culm to the whole amount deposited on the plaintiff’s land, and, therefore, the verdict should be for nominal damages. There is no assignment alleging error of law in the trial of the case. After the first trial in the common pleas which resulted in a verdict for nominal damages under the instructions of the court, the defendant appealed to the Superior Court where it was held that the plaintiff was entitled to compensatory damages and that there was sufficient evidence to submit to the jury to determine whether and to what extent the culm deposited by the defendant in the stream damaged the plaintiff’s land. On the next trial there was a verdict and judgment for the plaintiff and from that judgment this appeal was taken. We do not agree with the learned counsel for the appellant that there was any substantial differencé in the evidence submitted on the two trials. Both parties possibly strengthened their position by additional evidence, but after a careful review of the testimony we are satisfied that the ease was for the jury and that the evidence warranted the verdict which was rendered in the second trial. Of course the evidence did not show with mathematical certainty the exact amount of culm from the defendant’s collieries deposited on the plaintiff’s land, that could not be expected, but it was sufficiently certain to justify the jury in finding the proportion of culm which they did find came from the defendant’s collieries. In determining the accuracy of the verdict as to defendant’s proportion of the culm on the plaintiff’s land, it must not be overlooked that the jury at the request of the defendant spent three days in examining the premises with the assistance of two “showers” appointed by the court who were intimately acquainted with the places from which culm was produced along the Susquehanna river and its tributaries. This aided the jury greatly in passing on the vital question in the case. Under the evidence submitted, the jury would have been justified in finding that a greater proportion of the culm than forty per cent came from the defendant’s collieries.

We are at a loss to see why the learned counsel for the appellant should complain of the court’s ruling sustaining the objection to the defendant’s offer to show on cross examination by plaintiff’s witnesses that there was culm in the river other than the defendant’s, when no exception was taken on the trial to such ruling and it is not assigned for error on this appeal. The learned counsel well knows that if he desired to have the alleged error corrected he should have assigned the ruling of the court for error. It is idle to complain of the action of thé court as is done in the printed brief and attempt to use it as an argument to sustain the allegation that the court erred in not directing a verdict for nominal damages. When the plaintiff rested on the trial of the cause, if the defendant company thought he had failed to show its proportion of culm deposited on the land it should have declined to offer any testimony and asked for binding instructions. It was sufficient for the plaintiff- in the first instance to introduce evidence warranting the jury in finding that culm from the defendant’s collieries was deposited on his land and caused the injury complained of. That is what was done. The defendant company did not ask for binding instructions at the conclusion of the plaintiff’s testimony but introduced its own testimony to meet the plaintiff’s case. The defendant cannot now complain that the plaintiff’s case was in part made out by its own testimony. The learned court below instructed the jury that the burden was upon the plaintiff to show that his injuries resulted from the deposit of the defendant’s culm on his premises, and that “if you believe that the culm on the plaintiff’s land came partly from defendant’s operations and partly from those of other .people, what was the defendant’s share of it, its proportion of it? What was the defendant’s proportion of the injury which was done by the washing of its loose culm down upon the plaintiff’s land? Before you can find compensatory damages against the defendant it is necessary for you to determine how much of that damage the defendant was responsible for. ” There was ample evidence to support the jury’s finding as to the proportion of the defendant’s culm deposited on the plaintiff’s land, and the judgment is affirmed.


author: Me. Justice Mesteezat,

text:
    Pierce, Appellant, v. Lehigh Valley Coal Company,
    (No. 2).

      Damages — Torts—Damages for detention of payment — Excessive demand.

    1. The right to compensation for delay in the payment of damages arising out of a tort depends upon the circumstances of the case. It is, therefore, usually a question for the jury under the evidence submitted. If the fault in nonpayment of the claim rests with the defendant he cannot complain if he is required to compensate for the delay. If on the other hand the fault lies with the plaintiff by reason of an excessive and unconscionable demand, one which the defendant is required to protect himself against by litigation, he should not be penalized for the unwarranted conduct of the plaintiff and required to pay damages for the delay in the settlement of the claim.
    2. In a tort action to recover damages for injury to land the trial court is warranted in disallowing damages awarded by the jury for the detention of the payment of the plaintiff’s claim where it appears from the evidence that the claim was for $50,000 while the verdict was for only $6,200, that the claim was strongly insisted upon in its entirety at the trial and that at no time did the plaintiff offer to reduce the claim or to accept any smaller sum than his original demand.
    Argued April 11, 1911.
    Appeal, No. 375, Jan. T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., March Term, 1904, No. 179, setting aside an item of damage in a verdict for plaintiff in case of Harry W. Pierce v. Lehigh Valley Coal Company.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for injuries to land. Before Ferris, J.
    The facts appear in Pierce v. Lehigh Valley Coal Company, Appellant, ante, p. 165.

      Error assigned was in setting aside allowance of $2,920 awarded as compensation for delay.

      William S. McLean, with him John A. Opp, for appellant.
    — Where the delay is caused by the plaintiff only, we concede, he is not entitled to compensation for delay, but when the defendant also assists in causing the delay, the jury may give the plaintiff reasonable compensation for the delay: Mengall’s Executors v. Water Co., 224 Pa. 120; Rea v. Pittsburg & Connellsville R. R. Co., 229 Pa. 106.
    The damages to the plaintiff were not caused by negligence in the pursuit of a lawful business nor by accident nor inadvertence, and the law distinguishes between a case in which the injury is willful, wanton and purposely done and one caused by accident or inadvertence: Seely v. Alden, 61 Pa. 302; Little Schuylkill Nav. R. R. & Coal Co. v. Richards, 57 Pa. 142.

      J. B. Woodward, with him F. W. Wheaton and John T. Lenahan, for appellee.
    May 23, 1911:
   Opinion by

Me. Justice Mesteezat,

This was an action of trespass to recover damages for injuries which the plaintiff alleges he sustained by reason of the deposit of culm and other coal refuse upon his land from the defendant’s colliery. The jury under the instruction of the court returned a special verdict in which they found for the plaintiff $6,200 damages and $2,920 as compensation for delay in payment of the sum awarded as damages. The learned court set aside the part of the verdict that allowed compensation for the delay in payment, and directed judgment to be entered for the amount of the damages. The plaintiff alleges error in the court’s action in not allowing compensation for detention of the damages. This is the only question in the case.

The facts fully warranted the court in disallowing the damages awarded for the detention of the payment of the plaintiff’s claim. As appears by the evidence and as stated by the court, the claim was for $50,000 and it was strongly insisted upon in its entirety at the trial. At no time did the plaintiff offer to reduce the claim or to accept any smaller sum than his original demand. The fact that the verdict in his favor was for only $6,200 shows that the demand was excessive, extortionate and unreasonable and one which the defendant was fully warranted in contesting. The officers of the defendant company would manifestly not have been justified in paying the claim. Had they done so they would have failed to perform their duty and would have been responsible to the company. It is true that the defendant company declined to pay any sum whatever, and took' the position that it was not liable for any damages, but in passing upon the question now under consideration it must not be overlooked that on the first trial of the cause the lower court sustained this view and a verdict for nominal damages only was rendered for the plaintiff. That judgment was reversed by the Superior Court, and the second trial resulted in the judgment from which this appeal was taken. At no time did the plaintiff offer or indicate a willingness to accept anything less than the original demand, and notwithstanding the defendant company’s erroneous view of the law as to the plaintiff’s right to recover compensatory damages, it was fully justified, as the present verdict shows, in resisting a recovery of the plaintiff’s claim.

The right to compensation for delay in the payment of damages arising out of a tort depends upon the circumstances of the case. It is, therefore, usually a question for the jury under the evidence submitted. If the fault in nonpayment of the claim rests with the defendant he cannot complain if he is required to compensate for the delay. ’ If on the other hand the fault lies with the plaintiff by reason of an excessive and unconscionable demand, one which the defendant is required to protect himself against by litigation, he should not be penalized for the unwarranted conduct of the plaintiff and required to pay damages for- the delay in the settlement of the claim. The court should so instruct the jury, and if they disregard the evidence and wrongfully return a verdict awarding compensation for the delay, the court should set aside that part of the verdict where the amount can be ascertained, and if it cannot be ascertained the entire verdict should be set aside and a' new trial awarded. If it is clearly developed on the trial of the cause that the claim is extravagant and unreasonable and warranted the defendant in resisting payment, the court should direct the attention of the jury to the evidence with instructions that if it is credible the plaintiff would not be entitled to recover compensation for the delay. In such a case the only question for the jury would be the credibility of the witnesses, and if they persisted in returning a verdict against the manifest weight of the evidence it should be promptly set aside by the court. A verdict on this as on every question submitted to a jury should be sustained by the credible evidence, and when it is not, the clear duty of the court is to set it aside.

The judgment is affirmed.