author: Mr. Justice Moschziskek,

text:
    Chestnut Hill and Spring House Turnpike Road Company v. Montgomery County, Appellant.

      Statutes — Construction —Reasonable meaning- — Rules of grammar.

    1. In construing a statute effort should be made to find a reasonable meaning for all of the words used and to give force and effect to every part. The construction placed upon each part should be logical in itself, and consistent with that given to every other.
    2. All phrases and sentences are to be construed according to the rules of grammar; and these require, as a general thing, that a limiting elause or phrase following several expressions to which it might be applicable, should be restrained to the last antecedent.

      Turnpike companies — Condemnation of road — Practice, C. P.— Practice, Q. S. — Jury of view — Confirmation of report — Appeals—Act of June 2,1887, P. L. 306--Construction of act.

    3. Sections 6 and 8 of the Act of June 2, 1887, F. L. 306, relating to proceedings for condemning a turnpike road are thus construed: (1) Exceptions may be filed within thirty days from the time the report is filed; (2) if the exceptions filed are withdrawn or dismissed, and the report is not referred back to the jury or set aside, then it is to be marked confirmed nisi, which is equivalent to the approval referred to in sec. 8; (3) another thirty days is then given to allow time for an appeal to the common pleas, and if no appeal is taken within that period, the report is to be finally confirmed or disapproved at the end thereof; (4) if an appeal is taken, then the final confirmation cannot take place until thirty days after the result of the appeal is remitted from the common pleas and filed in the quarter sessions; (5) if no exceptions are filed or appeal taken to the common pleas within the times fixed by the act, the court may of its own motion confirm or dismiss the report.

      Turnpike companies — Condemnation proceedings — Damages—Evidence.

    4. On a proceeding to condemn a turnpike road evidence as to the quality and value of the masonry in a bridge along the line of the road is admissible, although there are dates indicating the erection of the bridge prior to the chartering of the company, if there is evidence to show that the biidge was rebuilt in comparatively recent times, and that the company had been in possession of the property along the line of the road for nearly a century.
    5. In such a proceeding evidence as to a private sale of the stock of the company is not to be regarded as conclusive or binding evidence of market value, but only as some evidence which the jury may consider in determining the question.
    6. In ascertaining the value of the road condemned the jury may take into consideration the value of the cuts and fills shown by experts to exist in the road, and, to ascertain this, they may consider the words used in the ancient books of the company, such as “leveling, forming, and smoothing,” as indicating the doing of such work-.
    7. - The value of the franchises of a turnpike road company depends to a degree upon the earning capacity of the company; but whether or not it “largely” depends upon this element is for the jury to say under all the evidence in the case.

      Practice, C. P. — Trial—Misstatements of facts.

    8. Alleged misstatements of fact in a charge will not be considered by the appellate court if they were not specially, called to the attention of the trial judge; this is especially so where such misstatements are not material.

      Appeals — Assignments of error — Admission of testimony —Rule 29.
    9. An assignment of error to the admission of testimony will not be considered if such an assignment refers to more than one bill of exceptions; and thus violates rule 29.
    Argued Feb. 7, 1910.
    Appeal, No. 62, Jan. T., 1909, by defendant, from judgment of C. P. Chester Co., Jan. T., 1909, No. 9,. on verdict for plaintiff in case of Chestnut Hill and Spring House Turnpike Road Company v. Montgomery County.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      Petition for the appointment of viewers to condemn a turnpike road. Before Hemphill, P. J.
    From the record it appeared that the proceedings were originally started in the court of quarter sessions in Montgomery county, June Term, 1907, No. 39, and that the venue was subsequently changed to Chester county where the trial was had.
    At the trial the court permitted Malcolm D. Patterson, a witness for plaintiff, to testify under objection and exception as to the quantity and value of the masonry in certain bridges. [3]
    The court also permitted Hugh Crilley, a witness for plaintiff, to testify as to the buying and selling value of the stock of the company since 1901 [4], including three bills of exceptions.
    The same witness and other witnesses were permitted under objection and exception to testify as to the grading and excavation of the highway and the value thereof. [6, 7, 8, 9]
    The defendant presented, inter alia, the following point:
    2. That the value of the property to the plaintiff company, the Chestnut Hill and Spring House Turnpike Company, is to be ascertained by the value of the structure considered in connection with the value of its franchises, and the value of its franchises depends largely upon its earning capacity or productiveness. Answer: That is affirmed with the qualification that whether the value of its franchises depends largely upon its earning capacity or productiveness — is for the jury to determine. [17]
    Verdict and judgment for plaintiff for $61,000. Defendant appealed.

      Errors assigned among others were (1) refusal of C. P. Montgomery county to strike off the appeal; (2) refusal of C. P. Chester county to strike off the same appeal when moved to do so at the trial; (3-9) rulings on evidence, quoting the bill of exceptions; and (17) refusal of defendant’s point as above, quoting point and answer.

      John Faber Miller and J. P. Hale Jenkins, with them John ,7. Gheen and Conrad S. Shelve, for appellant.
    The appeal ought-to have ..been' filed within thirty days after: November 18, 1907. .:
    :' It is too late after the quarter sessions has entered .the. decree of final confirmation to take such an appeal. .....''
    By “market value” is meant a price established by public sales in the way of ordinary business: Murray v. Stanton, 99 Mass. 345; Meixell v. Kirkpatrick, 6 Pac. Repr. 241; Kountz v. Kirkpatrick, 72 Pa. 376.
    It may well be doubted whether under any circumstances the company is entitled to have the expenses of excavations considered by the jury in making up its estimate of damages: Kensington & Oxford Turnpike Co., 97 Pa. 260.

      N. H. Lctrzelere and A. M. Holding, for appellee.
    The filing could at most be no more than an interlocutory decree. Appeals are not allowed from such: Yost v. Davison, 5 Pa. Superior Ct. 469; Irwin’s App., 7 Pa. Superior Ct. 354; Guffey’s App., 7 Pa. Superior Ct. 478.
    When sec. 8 refers to an “approval of the report,” it must refer to the actual confirmation and not to the interiocutoiy order which is made at the time of filing, confirming the report nisi.
    There was no evidence whatever as to when the bridge mentioned was constructed. There was evidence that upon some part of it was a mark, stating it to have been built in 1792, and rebuilt in 1886, but this surely furnished no evidence that it was originally constructed as it now exists, prior to the incorporation of plaintiff.
    The fourth assignment is in violation of rule 29, as it contains three objections and exceptions and it is problematical which one is relied upon.
    Market value by public sales is not the only way to ascertain just compensation for condemned property. Stocks of many kinds occasionally are bought and sold privately, and neither at public auction or at the public stock .boards.. To. say.that no proof is admissible of the price and Value óf such stocks would, in any casé'trying, where proof óf their value was necessary, be equivalent to- saying they had no value, ■ and hence no damage could be suffered. No authority sustains such- a conclusion, or establishes such a rule: Murray v. Stanton, 99 Mass. 345.
    April 18, 1910:
   Opinion by

Mr. Justice Moschziskek,

The proceedings in this case are under the Act of June 2, 1887, P. L. 306, for the purpose of condemning a turnpike road. The jury of view in the quarter sessions assessed the damages at §23,870. The plaintiff appealed to the common pleas; in which court a jury trial was had, a verdict rendered, and judgment entered thereon for the sum of $61,000. The defendant has taken an appeal from that judgment.

The report of the jury of view was filed on November 18, 1907, and the words “confirmed nisi” appear thereon as of that date, but the court below held that this indorsement was without its authority and was not to be considered as in any sense a confirmation or approval of the report. On December 17, 1907, exceptions were filed. On February 7, 1908, the exceptions were withdrawn. On February 10, 1908, the report was marked “confirmed absolutely,” and on February 11, 1908, the appeal was taken to the common pleas. The defendant contends that the appeal was too late and should have been stricken off.

The sixth section of the act provides: “Exceptions may be filed .... to the report of such jury of view, within thirty days from the time that such report is filed, .... and such court, after considering such exceptions, may refer the report back to the jury : . . . or may set the same aside, or may confirm such report, and if no exceptions are filed to any such report, unless appeal is taken as provided for in sec. 8 of this act (and in such cash the final confirmation of the proceedings shall await the result of the appeal from the assessment within thirty days from the time of filing thereof), then such report shall be confirmed or dismissed by the court.” Section 8 provides: “An appeal to the common pleas, .... for the assessment of damages, may be taken .... within thirty days-after the approval of the report.”

In construing an act of assembly the pertinent rules of interpretation should be kept in mind, and the effort should be to find a reasonable meaning for all of the words used, and to give force and effect to every part; the construction placed upon each part should be logical in itself and consistent with that given to every other. It is an elementary principle of interpretation that all phrases and sentences are to be construed according to the rules of grammar; and these “require as a general thing, a limiting clause or phrase, following several expressions to which it might be applicable, to be restrained to the last antecedent:” Endlich on Interpretation of Statutes, secs. 2 and 414. Under this rule, and on other considerations which We will point out, we construe the phrase “filing thereof,” within the parentheses in the sixth section, as referring to the filing in the quarter sessions of “ the result of the appeal from the assessment,” when it is remitted from the common pleas. The-word “confirm” where it first occurs in the sixth section we take to mean a confirmation nisi or “approval,” to await the running of the other thirty days given by sec. 8 in which to take an appeal; and the word “approval” as used in the eighth section we consider to be synonymous with this word “confirm” in the sixth section. It is the evident intention of the act that the verdict in the common pleas shall be advisory to the quarter sessions on the amount of the damages, and that after the result of the appeal is filed in the quarter sessions it is for that court to determine whether or not it will give its final confirmation. This is made ' plain when we again look at the eighth section, wherein it is provided that the “judgment entered on the verdict, and the record thereof shall be remitted to the proper court of quarter sessions for further action upon the whole case.” When the quarter sessions puts its first approval upon the report, it indicates that the court is satisfied with the amount of damages awarded, and that at the end of the next thirty days, if no appeal is taken in the meantime, the report will be confirmed finally. But this approval is not any indication that the report will be so confirmed if the verdict rendered on the appeal should materially alter the situation. It is to cover this latter contingency that the whole matter is tied up “within” or during the thirty days immediately following the filing of the result of the appeal in the quarter sessions. The giving of this thirty days is consistent with the time allowed by the act for the various other steps in the proceedings, and affords a proper opportunity for all interested parties to gain knowledge of the result of the appeal, and to attack or uphold the verdict before the quarter sessions.

In brief, our construction of the parts quoted from the two sections is: 1. Exceptions may be filed within thirty days from the time the report is filed. 2. If the exceptions filed are withdrawn or dismissed, and the report is not referred back to the jury or set aside, then it is to be marked “confirmed nisi,” which is equivalent to the approval referred to in sec. 8.. 3. Another thirty days is then given to allow time for an appeal to the common pleas, and if no appeal is taken within that period, the report is to be finally confirmed or disapproved at the end thereof. 4. If an appeal is taken, then the final confirmation cannot take place until thirty days after the result of the appeal is remitted from the common pleas and filed in the quarter sessions. 5. If no exceptions are filed or appeal taken to the common pleas within the times fixed by the act, the court may of its own motion confirm or dismiss the report.

Although the quarter sessions marked the report of the jury of view “confirmed absolutely” on February 10, 1908, the proceedings were not then ripe for final confirmation, and the indorsement can only be taken to be the “ approval ” required by the act as a preliminary to the appeal to the common pleas. As such appeal was entered the next day, it follows that there is no merit in the contention that it was not within the time fixed by the act.

Complaint is made that the trial judge fell into error in admitting the testimony as to the quality and value of the masonry in a certain bridge along the line of the condemned road. The defendant contends that this bridge was not shown to be the property of the plaintiff company. Although marked with dates indicating its erection prior to the chartering of the turnpike company, there was evidence to show that the bridge was rebuilt in 1886; considering this evidence and the presumption that exists after a long lapse of time — in this case, nearly a century — that such property along the line of the road belongs to the turnpike company, we see no error in the admission of the testimony in question.

Testimony of the price paid at private sale in 1901 for a large block of stock of the plaintiff company was admitted for the purpose of showing the value of such stock. The specification of error which goes to the admission of this testimony cannot be considered, as it plainly violates rule 29 of this court by referring to more than one bill of exceptions. But we are convinced that no harm was done as the jury had full light concerning all of the circumstances surrounding the purchase, and the subsequent fluctuations in the price of the stock, and the trial judge stated to them that the testimony was not to be regarded as conclusive or binding evidence of market value, but only as some evidence which they had the right to consider in determining the question.

Among the elements to be taken into account in estimating the damage to the plaintiff company was the value of the cuts and fills in the road: West Chester & Wilmington Plank Road Co. v. County of Chester*, 182 Pa. 40; Somerton Turnpike, 16 Pa. Superior Ct. 400. We cannot say that there was any reversible error in permitting the ancient books of the plaintiff company to be used as some evidence for the purpose Of showing that in its original construction the road was an excavated and graded highway. The words used in the books “levelling, forming, and smoothing” indicate the doing of such work. This was followed by the testimony of experts who had examined the road and who testified to the physical evidence that work of this character had been done. Considering the fact that the plaintiff company was chartered in the beginning of the last century, no doubt the proof offered was the best obtainable upon the subject.

We find no error in the answers made to the various requests for charge called to our attention. In view of the testimony explaining that the recent net earnings of the plaintiff company had been greatly reduced by expenditures for large permanent improvements, the trial judge was right in qualifying his. answer to the defendant’s second request. Of course, the -value .of the franchises depended to a degree upon the earning capacity' of the' plaintiff company; whether or not it “largely” depended upon this element was for the jury to say under all the evidence in the case; and this is practically all that the qualification stated. The whole matter is thoroughly and correctly covered in the general charge of the trial judge, wherein he more than onCe clearly points out the various elements to be considered by the jury in estimating the -value of the franchise and the other component parts of the property taken.

The remaining assignments complain of the manner ■ in which the case was submitted to the jury. No reversible error is shown by any of these specifications. The alleged misstatements of fact‘were hot material, and as they were not specially called to the attention of the trial judge the complaints as to them will not be considered.

The assignments of error are all overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

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

      Appeals — Time—Judgment—Verdict.

      \ 1. Where an appeal is taken seven days after the entry of a judgment on a. verdict, the fact that more than five years had elapsed between the. date of the verdict and the date of the appeal does not invalidate the appeal. It is from a judgment and not from a verdict that an appeal lies.

      Negligence — Street railways — Wagon and electric car — Head-on Collision-Contributory negligence — Case for jury.

    2. In an action against a street railway company to recover damages for personal injuries suffered in a head-on collision between a wagon which the plaintiff was driving and an electric car, the contributory negligence of the plaintiff is for the jury, where the evidence tends to show that on the day of the accident the driveway alongside of the railway track was covered with ice so that it was almost impossible to drive over it with a smooth shod horse which the plaintiff was driving; that plaintiff turned onto the tracks over rails which were flat, and after traveling upon the track for about 500 feet, a car came towards him at a high rate of speed ringing no gong and giving no signal; that the day was very foggy so that the car could only be seen for a short distance, and that the motorman’s view of the track was interfered with because the window in front of him was closed and there was sweat upon it.
    Argued Feb. 8, 1910.
    Appeals, Nos. 346 and 347, Jan. T., 1909, by plaintiffs, from judgments of C. P. Delaware Co., Dec. T., 1903, Nos. 223 and 224, on verdicts for defendant in cases of Fred Rively and Albert K. Taylor v. Media, Middle-town, Aston & Chester Electric Railway Company.
    Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Savidge, P. J., specially presiding.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    It also appeared that the plaintiff, Rively, was in the wagon as a guest by the invitation of the plaintiff, Taylor.
    Verdicts and judgments for defendant. Plaintiffs appealed.

      Errors assigned in both cases were in directing verdicts for defendant.

      William C. Alexander, for appellants.
    The plaintiffs had a right to be on the track of the defendant company: Gilmore v. Ry. Co., 153 Pa. 31; Woelfel v. Ry. Co., 183 Pa. 213; Davis v. Ry. Co., 25 Pa. Superior Ct. 444; Ehrisman v. East Harrisburg City Pass. Ry. Co., 150 Pa. 180; Waechter v. Traction Co., 198 Pa. 129; Conner v. Pittsburg Ry. Co., 40 Pa. Superior Ct. 63.
    The gripman of a cable car should always be on the alert to avoid danger, and his attention should never be diverted from his duties: Schnur v. Citizens’ Traction Co., 153 Pa. 29.

      April 18, 1910:
    The plaintiff, Rively, under any view of the case, is entitled to have his case submitted to the jury, for it is now settled beyond controversy in Pennsylvania that the passenger in the wagon is entitled to the benefit of any care exercised by the driver, but that the negligence of a voluntary driver without compensation cannot be imputed to the passenger, so as to defeat his recovery, where there is negligence on the part of the defendant: O’Toole v. R. R. Co., 158 Pa. 99; Coleman v. Ry. Co., 195 Pa. 485; Jones v. R. R. Co., 202 Pa. 81; McCarthy v. Ry. Co., 211 Pa. 193; Carlisle v. Brisbane, 113 Pa. 544; Faust v. Ry. Co., 191 Pa. 420; Carr v. Easton, 142 Pa. 139.

      David Waller stein, with him E. A. Howell, for appellee.
    The appeals should be quashed: Black v. Pollock, 2 P. & W. 489; Keenan v. Quigg, 6 Pa. Superior Ct. 58; Littster v. Littster, 151 Pa. 474.
    The driver of a wagon must yield the track promptly on sight or notice of the approaching car: Thatcher v. Traction Co., 166 Pa. 66.
    One who knows, or by ordinary care may know of a defect in a highway and voluntarily undertakes to test it when it could be avoided, cannot recover for loss incurred through such defect: Crescent Township v. Anderson, 114 Pa. 643; Winner v. Oakland Township, 158 Pa. 405; Dryden v. R. R. Co., 211 Pa. 620; Kunkle v. Lancaster County, 219 Pa. 52.
    None of the cases cited by the appellant, Rively, are similar to the case at bar, and are therefore not authority. The case comes within that other well-established line of cases, beginning at least as far back as Township v. Anderson, 114 Pa. 643, and Dean v. R. R. Co., 129 Pa. 514, down to and including Kunkle v. Lancaster County, 219 Pa. 52, and Thompson v. R. R. Co., 215 Pa. 113; Dryden v. R. R. Co., 211 Pa. 620.
   Opinion by

Mr. Justice Brown,

These two cases were tried together and verdicts for the defendant were rendered on October 26,1904. A motion for a new trial was made in each case on the following day and was denied' on October 2, 1905: Nothing further was done until October 20, 1909, when the plaintiff in each case paid the jury fee, and on November 4, 1909, judgments were entered on the verdicts, from which these appeals were taken on -the eleventh of the same month. The motion to quash them, on the ground that they were taken too late, must be denied. While it is true that more than five years elapsed between the date of the verdicts and that of the appeals, they were taken within seven ■days of the entry of the judgments; and it is from a judgment, and not from a verdict, that an appeal lies: Act of May 19, 1897, P. L. 67. At any time after the verdicts were rendered in its favor the defendant below could have entered judgments on them by paying the jury fee, and the time for taking the appeals would have at once commenced to run. If it saw fit not to enter the judgments to which it was entitled, it cannot complain of the failure of the plaintiffs to have judgments entered on the verdicts until they were ready to take their appeals, for the judgments were of no úse at all to them except to entitle them to appeals for the purpose of bringing to the attention of this court errors alleged to have been committed on the trial.

Verdicts were directed for the defendant on the ground of the contributory negligence of the plaintiffs. A mere recital of the facts as established by the evidence submitted by them is sufficient to show that the question of their contributory negligence should have gone to the jury. One of them — Albert K. Taylor — was the owner of the team in which he and the other plaintiff were riding. When they reached a certain point in the public road they found the driveway covered with ice, and, the horse being smoothly shod, it was almost impossible to drive over it. The defendant company operated a single-track electric street railway along the south side of this public road. The driveway was north of the trolley track. After a car going in the same direction had passed the appellants they drove over onto the track to avoid the icy driveway. The tracks were of flat rails and were constructed with a view to their use by teams as well as by trolley cars. After traveling upon the track for the distance of about 500 feet, and before they had got beyond the icy part of the road, another car of the defendant company came 'towards them at a high rate of speed, ringing no gong and giving no signal. The motorman’s view of the track was interfered with,' for the window in front of him 'was closed and there was sweat upon it. The day was a very foggy one and the approaching car could not be seen for more than seventy or eighty feet, according to the testimony of the plaintiffs, and for a much less distance according to that of defendant’s witnesses. When the appellants saw the car approaching them they first made an effort to get onto the road by turning to the right, but were unable to do so on account of a ridge of ice on that side, and they then made an effort to turn to the left, when the team was struck and the injuries were sustained for which these actions were brought.

The plaintiffs had a right to use the track of the defendant company, subordinate, however, to its superior right to use it. The contributory negligence of which the court below pronounced them guilty was their leaving the driveway, when there was nothing to prevent them from traveling on it, and going on the tracks under the foggy condition of the morning, which prevented their seeing the approach of a car for more than seventy or eighty, feet. A jury could have fairly found that the icy condition of the driveway prevented the plaintiffs from traveling over it, but, even without any reason for leaving it, they were not trespassers in traveling upon the track. It was not negligence per se for them to be there: Thatcher v. Central Traction Co., 166 Pa. 66. If it had been a clear, bright day, it would not be pretended that the appellants would have been guilty of contributory negligence in going upon the track, and on this foggy day, though they could not see, they had a right to expect that some signal would be given them of an approaching car to enable them to get out of its way. It may or may not have been a prudent thing for them to leave the driveway and travel on the track, but as to this minds, can fairly differ. It. was absolutely impossible, or almost so, to proceed over the icy road, for the condition of which the appellee was responsible, and what more natural, when they found they could not proceed over the ice, than to turn to the track of the defendant company, constructed for the use of teams. The negligence of the appellee and the contributory negligence of the appellants were clearly for the jury, and the judgment is reversed with a venire facias de novo in each case.


author: Mr. Justice Moschzisker,

text:
    Foy's Election.

      Election law — Contested election — Certiorari—Review.
    1. A contested election case partakes both of the nature of an action at law and of a suit in equity, and on certiorari the appellate court is not limited to a formal examination of the record, but may review the conclusions of law and the decree entered by the court below. In such cases the higher court inspects the record to determine whether the lower court has exceeded its powers, or has abused the discretion conferred by the statute; and it has power to ascertain the facts from the record and to correct all erroneous conclusions, judgments or decrees based thereon.

      Election laws — Contested election — Ballots—Improper ballot — Setting aside election — Certificate to appointing power — Act of April 14, 1897, P. L. 23.
    2. Where a candidate’s name is printed as the candidate of a party that he does not represent, in violation of an order of court, and it appears that a large number of ballots were marked in the regular party’s square, and it appears from all the circumstances of the case that the ballot as printed was calculated to mislead the voters, and thus may have affected the result of the election, it is the duty of the lower court to so find, and to declare the election invalid as provided by the Act of April 14, 1897, P. L. 23, and report its decision to the officers authorized by law to fill the vacancy occurring in the office in question.
    3. A court ought always to be slow to set aside an election for any office, but when the legislature has ordained that under a certain state of facts it shall so act, and such facts plainly appear upon the record, the duty is clear, and there should be no hesitation about declaring the election invalid.
    ■ Election law — Contested election — Costs—Act of April 28,1899, P. L. 118.
    4. Under the Act. of April 28, 1899, P. L. 118, relating to contested elections when the contestant fails to establish his right to the office in question, the petitioners must pay the costs.
    Argued Feb. 15, 1910.
    April 18, 1910:
    Appeal, No. 378, Jan. T., 1909, by P. C. Foy, from order of Q. S. Schuylkill Co., In re Petition to contest election of P. C. Foy to the office of School Director in the Middle Ward of Girardville Borough.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition in election contest. Before Bechtel, J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the order of the court as stated in the opinion of the Supreme Court.

      Edward J. Maginnis and William. Wilhelm, for appellant.

      William C. Devitt, for appellee.
   Opinion by

Mr. Justice Moschzisker,

By an order duly entered in a proper proceeding the court below adjudged that P. C. Foy was not the nominee of the Republican party for the office of school director, and directed that his name should not appear upon the ballot as the candidate of that party. Notwithstanding this order the county commissioners had the name printed upon the ballot in connection with the party appellation “Republican.” The name of Foy also appeared in connection with the appellation “Peopled Party;” to which latter nomination he had an unquestioned right. Foy’s opponent was one Gibbons, the nominee of the Democratic and Independent parties. The election officers returned sixty-one Republican and 123 People’s party votes for Foy, and 159 Democratic and sixteen Independent votes for Gibbons; giving Foy a majority of nine. The certificate of election was awarded to Foy. A contest was begun on behalf of Gibbons; and it was claimed that the sixty-one votes returned for Foy as the Republican candidate should be rejected for the reason that his name was illegally upon the ballot Ihconnection with -that party appellation. The-'court below found that of these sixty-one votes) eleven word represented by straight, party ballots.marked in .the Republican square, one of the eleven also bearing a mark for Foy where his- name appeared as the candidate of the “People’s Party” in another column; and' that the fifty remaining votes were represented by ballots marked for Foy in this same other column where he appeared as a candidate of the Republican party. On these facts the learned court below stated the following conclusion: “We are clearly of the opinion that the eleven straight Republican ballots, including the one with the double marking, should not have been counted for P. C. Foy. The remaining fifty ballots marked with the cross opposite the name of P. C. Foy on the Republican ticket we think should be counted for Foy. This marking clearly evidences the intention of the voter to vote for Foy, and we cannot say that he would'not have received these votes irrespective of what ticket his name might have appeared upon.” Two votes were stricken from the number returned for Gibbons. The result reached was a vote of 173 for each candidate. The court'below entered a decree adjudging that the election resulted in a tie; and directed Foy and Gibbons to determine the tie' by' drawing lots ' in accordance with the act of assembly in such case made and provided; the costs of the proceedings to be paid by Foy. The case is before this court on certiorari at the instance of Foy. It is now settled definitely that a contested election case partakes both of the nature of an action at "law and of a suit in equity, and that on certiorari this court is not limited to a formal examination of the 'record, but may review the conclusions of law and the decree entered by the court below: Independence Party Nomination, 208 Pa. 108; Chester County Republican Nomination, 213 Pa. 64; Mulholland’s Case, 217 Pa. 631; Von Moss’s Election, 219 Pa. 453; Krickbaum’s Contested Election, 221 Pa. 521. In such cases we inspect the record, to determine whether the lower court has exceeded its •powers or has abused the discretion conferred by the'statute: In re Nomination of Robb, 188 Pa. 212. Wherever the right to review exists, the power to correct follows as a necessary corollary. As early as 1862, on certiorari, in the contested election of Chase v. Miller, 41 Pa. 403, Mr. Justice Woodward stated: “For one hundred and forty years the general jurisdiction of this court has been declared by statute to extend to the examination and correction of all and all maimer of error of justices, magistrates, and courts of the commonwealth, in the process, proceedings, judgments and decrees, as well in criminal as in civil proceedings, .... except where such review is expressly excluded by statute; . . . . but this statement is to be received with the very important qualification — that the errors to be reviewed shall be on the record. . . . Our correctional powers in such cases extend no further than to keep the court within the limits of its jurisdiction, and to see that that is exercised with regularity according to law.” And later on in the opinion it is said: “The inability of this court to review a decree of the quarter sessions on its merits, springs not from any organic defect of jurisdiction, but from the want of a bill of exceptions to certify us of the facts.” It has been repeatedly ruled in our recent decisions that in election cases we can get the facts from the record and the opinion of the court below. When the facts are ascertained, we have the right to correct all erroneous conclusions, judgments, or decrees based thereon: Babcock v. Day, 104 Pa. 4; Woodward v. Carson, 208 Pa. 144.

The question in this case is, did the court below, upon the facts shown by the record, draw the proper conclusions and enter the decree required by the statute?

There was no mistake or irregularity in the actual marking of the ballots — with the possible exception of the one with the double mark — but the difficulty arises from the printing thereon of Foy’s name as the candidate of a party that he did not represent. If we regard the appearance of Foy’s name upon the ballot in connection with the appellation “Republican” as absolutely unlawful and void, then it follows not only that all his strictly straight Republican votes should be thrown out, but likewise the fifty votes marked for him individually opposite the appellation “Republican.” This view defeats Foy and gives the office to a man who did not command a majority of the qualified voters of the district. If the other view be taken, that the name of Foy was on the ballot as the Republican candidate under a color of right, and therefore the electors who voted for him in that connection should not be disfranchised as against other electors, then not only the fifty votes which the court gave to him should be counted, bht also all of the strictly straight Republican votes; for the Act of April 29, 1903, P. L. 338, sec. 29, expressly provides that, every mark within a straight party square shall be “equivalent to a- mark against every name designated by that political appellation” in the other-column. This would give the office to Foy through a defiance of the solemn order of the court, involving the issuance of defective ballots calculated to mislead and deceive the voters. When the electors who knew of the decision of the court that Foy was not the Republican nominee saw his name upon the ballot as the candidate of that party, they may well have been misled into the thoúght that the order had been reconsidered, or if not actually so misled, they must at least have been confused; and those who had no knowledge of the decision were deceived by the unlawful presence of his name upon the ballot. On such a condition of affairs, no one can possibly tell how the sixty-one electors who voted for Foy as a Republican candidate would have voted had his name not so appeared upon the ballot; nor is there any way of knowing how many of these voted for him simply on the ground that he represented the policies of that party. The only purpose of -placing a party appellation beside a name is to show the policies represented by the candidate, and it is too well known to be ignored that electors more often vote for a candidate because of the party he represents than for reasons personal to the man himself. Looking at all the facts shown on the record, the conclusion is irresistible that this is an instance where the ballots, by reason of the unlawful addition of the name of Foy in connection with the Republican party appellation, were so defective as to be calculated to mislead the voters, and that this may have affected the result of the election. Under such circumstances, what was the duty of the court below? The question is answered in plain terms by the Act of April 14, 1897, P. L. 23, wherein it is provided: "Whenever in any contested election the tribunal trying the case shall decide that the ballots used .... were, by reason of the omission, addition, misplacing, misspelling or misstatement of one or more titles of offices, or names of candidates, or parties or policies represented by them, so defective as to the office in contest as to be calculated to mislead the voters in regard to any of the candidates nominated for said office, and that the defective condition of the said ballots may have affected the result of the entire election for the said office, the said tribunal shall declare the election to be invalid as regards the said office, and shall report their decision to the proper officer or officer's who are now by law authorized to fill vacancies occurring in such office, who, upon receipt of such notice, shall without delay proceed to appoint a suitable person or persons to fill the vacancies thus created, and the person or persons so appointed, shall continue in office until the next election succeeding his appointment at which such office is now by law required to be filled.”

The act carries with it the right to the exercise of judicial discretion in deciding the question as to whether or not the ballots used were calculated to mislead the voters; but "'judicial discretion never means the arbitrary will of the judge; it is always a legal discretion to be exercised in discerning the course prescribed by law, and when that is discerned it is the duty of the court to follow it:” 9 Am. & Eng. Ency. of Law (2d ed.), p. 473.

A court ought always to be slow to set aside an election for any office, but when the legislature has ordained that under a certain state of facts it shall so act, and such facts plainly appear upon the record, the duty is clear, and there should be no hesitation about declaring the election invalid. The failure of the court below to decide on the facts presented in this record that “ the ballots used were so defective as to the office in contest as to be calculated to mislead the voters” in regard to Toy’s candidacy and the “parties or policies represented” by him, and that “the defective condition of said ballots may have affected the result of the election,” was in law an abuse of the discretion conferred by the statute. "Where after finding the fundamental facts, the trial court plainly, fails to draw the proper deductions therefrom and to act thereon according to the requirements of the statute, it is the d.uty of this court either to make the necessary corrections or to remit the record for that purpose. Since the act of 1897 requires certain ministerial acts to be performed after an election is declared invalid, the record in this case will be remitted:

The court below fell into error in ordering the contestant Foy to pay the costs. Under the Act of April 28, 1899, P. L. 103, in election contests, the trial court has power to-use its discretion as to whom it will charge with certain of the costs when the time consumed in taking testimony exceeds ninety days; but there is nothing in the present record to show when the taking of testimony commenced or how. much time was thus consumed. The liability for the costs in this case is provided for by the Act of April 28, 1899, P. L. 118; and thereunder, when the contestant fails to establish his right to the office in question, the petitioners must pay the costs: Thirty-eighth Ward Election, 35 Pa. Superior Ct. 256.

The third assignment of error is sustained; the decree is set aside; and the record is remitted so that the court below may enter a proper decree declaring the election for the office in question to be invalid, as provided in the act of April 14,1897, and as indicated in this opinion. The costs to be paid by the petitioners.


author: Mr. Justice Potter,

text:
    Northup v. Hall, Appellant.

      Equity — Cancellation—Deed—Fraud■—Undue influence.

    Where a woman seventy-nine years of age, six months prior to her death, executes a deed of real estate to two of her nieces, retaining control thereof during her own lifetime, in consideration of a home and support for the remainder of her life in the old homestead where she was born and reared, which homestead was owned by the two nieces and their sister, such deed will not be canceled where the evidence shows that the purpose of the grantor was to secure a home for herself in the old homestead and the enjoyment of her property by the two favored nieces after her death, and that the deed was prepared by her own attorney at her instance, and without any compulsion, duress or misrepresentations upon the part of the grantees.
    Argued Feb. 22, 1910.
    Appeal, No. 37, Jan. T., 1910, by defendants, from decree of C. P. Lackawanna Co., May T., 1908, No. 1, on bill in equity in case of E. J. Northup et al. v. Lephe A. Hall et al.
    Before Fell, C. J., Brown, Mestrezat, Potter and Moschzisker, JJ.
    Reversed.
    Bill in equity for cancellation of a deed. Before New-comb, J.
    The facts are stated in the opinion of the Supreme Court.
    The court found the following conclusions of law:
    2. But the fact that Mr. Davidson believed the receipt did not have that effect, coupled with the knowledge that the grantor claimed it was not at the time so intended by her, goes to the good faith of the transaction, and is pertinent as showing that the ostensible consideration moving to the grantor was assumed for the benefit of the defendants and to the grantor’s prejudice. As such it was an apparent, rather than a real consideration.
    6. The evidence is insufficient to satisfy the conscience of the court either that the grantor got, or was by defendants intended to get, any real consideration for the deed; or that in other respects the transaction is free from suspicion that unfair advantage was taken of her.
    7. On the contrary, the evidence warrants the conclusion that her credulity was imposed upon in respect to the alleged impending sale of the homestead, and that she conveyed her property because she had been adroitly deceived into the false apprehension that it was inevitable as the only means of saving her home.
    8. This is decisive of the issue against the defendants.
    9. The plaintiffs are, accordingly, entitled to a decree to the effect that defendants hold title under the deed in question as trustees ex maleficio to the use of the grantor’s heirs at law.

      April 18, 1910:
    10. In order that complete relief be had it should be decreed that the deed be surrendered for cancellation.
    11. The defendants should pay the costs.
    The court entered a decree canceling the deed.

      Errors, assigned among others were (6-12) the conclusions of law as above; (14) the decree canceling the deed.

      H. A. Knapp, of Willard, Warren & Knapp, with him C. B. Little, for appellants.
    The law is free from difficulty. It is all found in the case of Brink v. Brady, 224 Pa. 116, in which case the validity of a will was in question.
    In the case at bar the instrument in question expresses the true desires of the grantor. It served to effectuate her two most cherished desires, to wit, a home for herself at the old homestead and the enjoyment of her property by her favored nieces after her decease: Darlington’s Est., 147 Pa. 624; Greenfield’s Est., 14 Pa. 489.

      George Morrow, with him W. N. Leach, for appellees,
    cited: Yardley v. Cuthbertson, 108 Pa. 395; Ringrose v. Ringrose, 170 Pa. 593; Dreisbach v. Serfass, 126 Pa. 32; Davis v. Martin, 8 Pa. Superior Ct. 133; Miskey’s App., 107 Pa. 611.
   Opinion by

Mr. Justice Potter,

Mary A. Hall of Glenbum, Lackawanna county, Pa.-, died on November 26, 1906, at the age of seventy-nine. Some six months prior to her death she executed what was termed an exchange deed, by which, in consideration of the assurance to her of a home and support for the remainder of her life in the old homestead, where she was born and reared, and in which she had at the time been living for many years, but which was owned by her nieces, she conveyed to two of them, Lephe Hall and Jessie Hall, the defendants herein, some twenty-two acres of land adjoining the homestead, and a piece of land in Wayne county, Pa., and certain personal property, retaining, however, to herself the control and use of all the property during her natural life. The plaintiffs, who are the remaining heirs of Mary A. Hall, filed this bill in equity, praying for the cancellation of the said deed of exchange, alleging that its execution had been procured by the defendants by means of deception and undue influence exercised upon the said Mary A. Hall. The question for consideration here, is whether the testimony warrants the conclusion that Mary A. Hall was induced to make the deed by deception on the part of the defendants, or whether the influence exercised over her by them was sufficient to destroy her free agency in the making of the deed, so that in its execution she was dominated by the will of the defendants, and was not giving expression to her own will and judgment.

The defendants are daughters of William C. Hall, a brother of the grantor. The homestead in question, consisting of an old mansion and some twenty-five acres of land, was devised to William O. Hall by his father, who died in 1865. The devise was subject to a provision that Mary A. Hall should have rooms and a home in the homestead, so long as she remained single. She lived there until the year 1870, when she was about forty-three years of age. She then, for some reason which does not appear, left the homestead, and signed a receipt in full of all claims against the estate of her father. For some twenty-two years she made her home elsewhere. Upon the brother’s death in 1892, she returned to the homestead which had then passed into the ownership of her brother’s three daughters, Lephe, Jessie and Harriet. From that time until her death, it appears that Mary A. Hall made her home with the defendants most of the time. She was very much attached to them, and especially to Lephe Hall, who seems to have been her favorite niece, and was happy in her care and companionship. She was much attached to the old homestead, and cherished the hope of spending her declining years there, undisturbed. Her niece Lephe enjoyed the full confidence of her aunt, and was intrusted with the care of such of her correspondence and business as required attention. She was consulted by the aunt in her money matters, and was familiar with her property, and its final disposition •was often discussed between them. It appears from the evidence that during the summer of 1905, the two defendants, Lephe and Jessie Hall, and their sister Harriet, then Mrs. Shoemaker, and the aunt, Mary A. Hall, were all at the home place together. The defendants desired the aunt to make a will, but she was averse to doing so. She, however, intimated plainly her intention of giving to these nieces the most of her estate. At times during the latter years of her life the old lady was given to understand that the needs of the owners of the homestead property would require them to dispose of it. Any suggestion of a sale of the property grieved the aunt, and called forth her protests. During the year 1905, when the nieces and the aunt were together, it was suggested that the old homestead be sold, and a smaller place bought, where the aunt could have her home with one or both of the defendants. The suitability of several houses for that purpose was discussed, and finally Lephe Hall said, “Aunt Mary, why don’t you buy the old homestead, you can afford to own it, and we can’t.” And the aunt replied, “I would if I could sell my real estate.” Lephe Hall further testifies that some efforts were made to sell the aunt’s real estate, without avail, and afterwards she said, “Aunt Mary, if you can’t sell the real estate, why not exchange; you take ours, and we will take yours;” and that seemed to impress her very favorably. In the spring of 1906 Lephe Hall and her aunt were at home together. Jessie Hall was in New York and Mrs. Shoemaker was in Chicago. There is evidence tending to show that at that time all the owners felt that a sale of the homestead was very desirable, and the married sister, Mrs. Shoemaker, and her husband, were particularly insistent upon a sale of the property.

The trial judge found that the mental capacity of Mary A. Hall was not impaired, but he reached the conclusion that she was induced to execute the deed by a misrepresentation made by Miss Lephe Hall as to the immanence of a sale of the homestead. He placed much stress upon the reported prospect of a sale to one particular person, George Hall, which did not materialize. We are at a loss to see why so much emphasis should have been placed upon this one instance; for, without question, the owners of the property had the right, to sell it at public or private sale, or in any way that suited them, without regard to any possible right which Mary A. Hall may have had to retain rooms in the property during the remainder of her life. Whether or not she had such a right is doubtful, but evidently she did not want to remain there without the care and attention which had been bestowed upon her by her favorite niece. We have carefully examined the testimony in this respect, and we do not see that it justifies in the slightest degree any imputation of bad faith upon the part of Lephe Hall, in her dealings with her aunt, Mary A. Hall. Turning to the deed in question, we find that it recites the fact that Mary A. Hall was then residing with her niece Lephe Hall, in the old homestead, which was owned by and in the possession of the heirs of William C. Hall. And it further sets forth that Mary A. Hall desired that said property should be her home during the balance of her life; and further states that, “Whereas, a sale of said property is contemplated by the heirs of William C. Hall, to prevent the sale and retain the said homestead as her home, during the term of her natural life, Mary A. Hall desires to have the said homestead conveyed to her by the heirs of William C. Hall.” It is further set forth that, “ In consideration of retaining her home and support at the old Hall homestead and all expenses and repairs being paid for her, the said Mary A. Hall agrees to convey to Lephe A. Hall and Jessie Hall, two of the heirs of William O. Hall, all of the real estate and property of the said Mary A. Hall, the possession and control, however, of the property of Mary A. Hall to continue during her natural life, but the possession and control of the old homestead shall at once vest in Mary A. Hall and continue during her lifetime.” And to carry out this ai'rangement Lephe Hall, Jessie Hall and Harriet Shoemaker, joined by her husband, conveyed to Mary A. Hall for the term of her natural life the whole of the old homestead, comprising about twenty-five acres of land, with the house, bam and outbuildings. It will be noted that all expenses and repairs were to be paid for Mary A. Hall, and she was to be supported in the home thus provided for her. No slight burden was assumed in thus agreeing to provide the care and attention necessary for an old lady, as she then was, but with a reasonable prospect of life for some years to come. By agreement of counsel at the hearings, much testimony that would otherwise have been incompetent, was admitted. Thus Lephe Hall was permitted to testify to conversations which she had. with her aunt. She states frankly that she told her aunt of the desire and need of herself and sisters to make sale of the homestead property. The subject was discussed between them many times. The efforts that were made to obtain a purchaser were made known to the aunt. Lephe Hall gave in detail the circumstances which led her to believe and report to her aunt that a cousin, George Hall, would buy the place. But nothing came of that expectation. We see nothing, however, in the testimony as to this transaction, to indicate that Lephe Hall was not honestly under the impression that George Hall was a prospective purchaser. But there was no reason for laying special stress or emphasis upon his connection with the affair. He was only one of several possible purchasers of whom mention was made. Certainly the owners of the property had the right to sell it upon terms satisfactory to themselves. And if they testified to their intention of selling the place, and the need they felt for disposing of it, who can successfully assert that the owners had no such intention, and that no sale of the property was contemplated by them? Nor does the establishment of the fact that they contemplated selling, depend upon the testimony of Lephe Hall alone. George Davidson, the attorney for Mary A. Hall, testified that he' knew the Shoemakers were insisting that the place should be sold, and that they threatened to start partition proceedings to obtain the value of their interest, unless the place was sold. He states also that Mary A. Hall herself spoke to him more than once about it, telling him that Lephe was-trying to sell the place. It is impossible to read the testimony in this case without drawing from it the conclusion that, throughout a period of months or years, a considerable agitation with regard to the sale of the homestead property was going on, and that Mary A. Hall knew of it, and was disturbed by it. It, was perfectly natural that some plan should be sought, which would satisfy the desire of the old lady to remain in the homestead undisturbed, and at the same time justify the defendants in making the pecuniary sacrifice which this would involve. Defendants, through their counsel, express their entire willingness to have their relationship to Mary A. Hall regarded as one of confidence and trust, and they strongly maintain that standing in that relation, the evidence shows nothing in the nature of deception, or the exercise of undue influence in procuring the assent of Mary A. Hall to the arrangement in question, or in getting her to execute the exchange deed. They concede that the burden of showing entire fairness in the transaction was upon them, and they maintain that they have under the evidence, fully sustained that burden. We agree with them in that contention. We find nothing in the testimony to warrant any other conclusion than that Lephe Hall acted with entire fairness and candor towards her aunt, and made her fully acquainted with all the facts necessary to a full' understanding of the transaction.

The deed of which complaint is made was prepared by a member of the bar, Mr. George Davidson, a nephew of Mary A. Hall. He had been her legal adviser for many years, and her counsel in business affairs, as well as in matters of law. He testified that, after preparing the deed, at the request of Miss Lephe Hall, he took it to Mary A. Hall and read it over to her, and asked her if that was what she wanted. “Yes,” she said, “I think it is; I will consider this, I will look it over.” She then sat down and studied it carefully for perhaps an hour. They then had dinner, and afterwards Miss Mary A. Hall said that she had looked the deed over carefully, and that it was all right, and she desired to execute it; and she accordingly did so. He testified that he saw her repeatedly during the months afterwards, before her death, and that she always expressed herself as entirely satisfied with what she had done. He testified that she used to say, “lam pleased that this property is mine; Lephe has promised to stay with me as long as I live, she is going to do all of my business and look after everything for me.”

Without unduly prolonging this discussion, it is sufficient to say that a careful examination of the evidence in this case has satisfied us that the deed in question was the voluntary act of Mary A. Hall, free from any undue influence by the defendants. We have no doubt under the evidence, but that she was influenced to enter into the arrangement proposed, by her desire to secure and retain for her own comfort the undisturbed possession of the property which for so many years had been her home. Probably her affection for the nieces who had cared for her in the past, and who agreed to minister to her in the future, had also something to do with it. That this element should have some weight with her would be but natural. But that she was moved to act in the matter through any deception, or through the exercise of such influence by the defendants as destroyed her free agency, or led her to act against her own will, we cannot find from the evidence.

The sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments which specify error in the conclusions of law of the court below, are sustained.

The decree of the court below is reversed and it is ordered that the bill of plaintiffs be dismissed. The costs in the court below, and upon this appeal, to be borne by the appellees.


author: Per Curiam,

text:
    McCollum v. Shook, Appellant.

      Vendor and, vendee — Judgment—-Opening judgment — Ejectment.
    A vendor of land brought an action of ejectment for unpaid installments of purchase money. At the same time he entered a rule to arbitrate. Subsequently the parties agreed that the rule to arbitrate be stricken off, and the defendant confessed judgment for the land, to be set aside, upon payment by the defendant into the prothonotary’s office of .the whole balance of the purchase money. Upon such payment the plaintiff was to deposit with the prothonotary a deed for the land to the defendant. Subsequently the defendant entered a rule to open the judgment. Held, (1) that the defendant could confess judgment in consideration of the rule to arbitrate being stricken off;

      (2) that the prothonotary was authorized by statute to enter the conUssed judgment; (3) that the fact that the vendee made valuable improvements on the land did not permit him to retain the property without paying the purchase money, and (4) that under all the facts the court was justified in refusing to open the judgment.
    Argued March 14, 1910.
    April 18, 1910:
    Appeal, No. 352, Jan. T., 1909, by defendant, from order of C. P. Susquehanna Co., Nov. T., 1908, No. 51, discharging rule to open judgment in case of A. H. McCollum v. Samuel A. Shook.
    Before Mestrezat. Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rule to open judgment. Before Little, F. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was order discharging rule to open judgment.

      Edson W. Safford, for appellant.
    A. B. Smith, for appellee.
   Per Curiam,

This was an action of ejectment brought to enforce the payment of certain installments of purchase money due for real estate sold by the plaintiff to the defendant. When the writ was issued the plaintiff entered a rule to arbitrate which was served on the defendant. Subsequently, the parties entered into an agreement by which the rule to arbitrate was stricken off and the defendant confessed judgment “in favor of the plaintiff for the land described in the writ, to be set aside and judgment to be entered for the defendant and against the plaintiff for the land described in the writ upon payment into the prothonotary’s office by the defendant for the use of the plaintiff within fifteen days from the date hereof of the sum of 83,601 and costs, to be taken out by the said plaintiff for his use only upon depositing with the said prothonotary for the use of the defendant a good and sufficient warranty deed of the premises described in the* writ.” This agreement was filed in the common pleas and judgment was entered by the prothonotary as therein provided. Three or four months after the entry of the judgment, the defendant presented his petition to the court and obtained a rule upon the plaintiff to show cause why the judgment should not be opened. Matters of fact as well as of law were averred in the petition as reasons for opening the judgment. The learned judge found the matters of fact and ruled the questions of law in favor of the plaintiff.

At the time the writ was issued, several annual installments of principal and interest were due to the plaintiff, and hence he had the right to enforce payment by an action of equitable ejectment. The agreement between the plaintiff’s counsel and the defendant was entered into by the latter with a full understanding of its meaning and purpose. The defendant manifestly confessed judgment to save the costs and expense of the arbitration. In the defendant’s petition, there is no allegation of the plaintiff’s title being defective, nor that the defendant had paid all the installments of purchase money due, nor is there any legal or equitable defense whatever set up which would avail the defendant if the judgment had been opened. It does not appear that the plaintiff has violated his agreement in any way. Under the facts, therefore, as disclosed by the pleadings and testimony, the plaintiff had a right tó institute the action and to proceed to judgment. It is equally clear that the defendant could agree that the rule to arbitrate be stricken off, and could confess judgment for the amount he admitted to be due.

The prothonotary was authorized by statute to enter the judgment confessed by the defendant. The fact that after the purchase of the land the defendant made valuable improvements thereon did not permit him to retain the property without paying the purchase money. He made the improvements at his peril, and if he loses them by his failure to comply with the agreement to pay the purchase money he has no one to blame but himself. The making of the improvements on the property by the defendant does not create an equity in him superior to the equity of the plaintiff to enforeé payment of the purchase money.

The agreement between the parties for the sale and purchase of the real estate, it will be observed, did not require the plaintiff to deliver a deed until the purchase money was paid. The judgment entered against the defendant by confession provides that the balance due the plaintiff, to be paid into the prothonotary’s office, shall “be taken out by the said plaintiff for his use only upon depositing with the said prothonotary for the use of the defendant a good and sufficient warranty deed.” It was, therefore, incumbent upon the defendant to pay into court the balance of the purchase money due before he was entitled to a deed from the plaintiff; and hence the fact that no deed was filed in the prothonotary’s office by the plaintiff is no reason for the defendant refusing to pay the balance of the purchase money, or any reason for the court opening the judgment against the defendant.

The judgment is affirmed.


text:
    Hoxie v. Chamberlain, Appellant.

      Wills — Construction—Fee simple estate — Real estate.

    1. A devise with power to give a fee, passes a fee.
    2. Where a testator gives to a person, who is in the position of a daughter to him, the same estate which she would have taken as his only child and heir at law, and in a subsequent clause directs that should she “have no legal issue or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest shall revert to and belong to my estate,” the devisee takes a fee simple in the testator’s real estate.
    Argued March 14, 1910.
    Appeal, No. 36, Jan. T., 1910, by defendant, from judgment of C. P. Bradford Co., May T., 1909, No. 473, for plaintiff in case stated in suit of Mary T. Hoxie v. William Chamberlain.
    Before Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Cameron, P. J., specially presiding.

      April 18, 1910:
    From the case stated it appeared that the plaintiff, formerly Mary P. Thorpe, claimed title, as devisee in fee simple under the will of Otis J.. Chubbuck. . -
    The material portion of the will was as follows:

      “ 3. I give to Mary P. Thorpe, known as Mary P. Chubbuck, whom we have brought up, the same interest and rights in my personal and real estate,- as she would have were she our own and only child (save only as the same may be affected by collateral inheritance tax). Should the said Mary have no legal issue or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest,, shall revert to and belong to my estate.”
    The court entered judgment for plaintiff.for $1,500. Defendant appealed.

      Error assigned was the judgment of the court on case stated.

      J. Boss Littey, of Lilley & Wilson, for appellant,
    cited: Stoner v. Wunderlich, 198 Pa. 158; Martin v. Heckman, 25 Pa. Superior Ct. 451.

      I. McPherson, with him William Little, for appellee.
    When there is an absolute and unqualified devise in fee simple, a subsequent limitation over to another of what remains, or of the residue, at the death of the first taker will not reduce his estate: Bailey v. Railway Co., 208 Pa. 45; Gilchrist v. Empfield, 194 Pa. 397; Ide v. Ide et al., 5 Mass. 500; Burbank et al. v. Whitney, 41 Mass. 146, 154; Jackson v. Bull, 10 Johns. 19; McDonald v. Walgrove, 1 Sandf. Ch. 274.
   Opinion by

Mr. Justice Potter,

The question here presented for consideration is as to the extent of the estate vested in the plaintiff by the will of Otis J. Chubbuck. In the third paragraph of his will-the testator gave to the plaintiff the same .estate whicli she would have taken as his only child and heir at law. It is clear that he intended to give her what amounted to an estate of inheritance. He went on to express a further intent by saying, “ Should the said Mary have no legal issxxe or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest shall revert to and belong to my estate.” It is necessarily implied by these words that the devisee had power to dispose of the property given to her, for the limitation over to the estate of the testator was only to apply to so much of it as “she may die seized of.” There was no limit placed upon her right to dispose of the property at hex-own discretion, and therefore the devise amounted to an unqualified gift. A devise with power to give a fee, passes a fee: Brown’s Est., 38 Pa. 289; Chxirch v. Disbrow, 52 Pa. 219; Witmer v. Delone, 225 Pa. 450.

In so far as any subsequent limitation over was inconsistent with the absolute gift already made, it would be void. We agree with the court below that under the will in question the estate devised to the plaintiff in the property described, is a fee simple, and that the deed of herself and husband for the same will convey a good and marketable title thereto.

The specifications of error are overrxiled, and the judgment is affirmed.


text:
    Giovanelli v. Erie Railroad Company, Appellant.

      Negligence — Railroads—Passenger—Getting on car — Evidence—Case for jury.

    1. It is the duty of a carrier to give intending passengers a reasonable opportunity to enter a train in safety before it is started, and the failure to do so, resulting in injury to a passenger, is actionable negligence for which the carrier is liable.
    2. A passenger is entitled to have his suit against a railroad company go to the jury, where his own testimony corroborated by others, but contradicted by the defendant, tends to show that after the train which he intended to take was announced, he proceeded to board it; that 'when he was on the second step his further progress was barred by persons standing on the platform; that the train then started and ran over a switch and was suddenly stopped with a jerk, when one of the men on the platform was thrown or fell against the plaintiff, who was precipitated to the ground and injured by the wheel of the car passing over his leg.

      Argued March 14, 1910.
    April 18, 1910:
    Appeal, No. 57, Jan. T., 1910, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1908, No. 485, on verdict for plaintiff in case of Dominico Giovanelli v. Erie Railroad- Company.
    Before Mestrezat, Potter, Elicin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Fanning, P. J.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Rodney A. Mercur, with him Halsey Sayles, for appellant.

      Wm. Maxwell, with him David E. Kaufman and H. H. Rockwell, for appellee.
   Per Curiam,

The statement avers, inter alia, that “as the plaintiff stepped upon the car steps to enter said car, having his left foot upon the first step, and his right foot upon the” second step, of the said car, and with his hand holding on the rail of the said car, on his way to enter the said car, and while in the act of doing so, as aforesaid, the train, negligently, carelessly and wantonly, and without any notice or warning to the said plaintiff, started and proceeded but a short distance without any reason or excuse for so doing, and then negligently, carelessly, wantonly and without any warning to the said plaintiff, came to a sudden stop, with such force as to violently throw the plaintiff from the steps of the said car to the ground or track,” etc. This averred a good cause of action, and was sustained by the plaintiff’s testimony, if believed. At least two witnesses testified substantially that after the train for Corning was announced, the plaintiff immediately attempted to board it by ascending the steps of the smoking car; that when he was on the second step his further progress to the interior of the car was barred by several persons standing on the platform, and the train then started; that it ran over the switch onto the main west-bound track and was suddenly stopped with a jerk; that one of the men on the platform, obstructing plaintiff’s way to the body of the car, was thrown or fell against the plaintiff who was precipitated to the ground and was injured by the wheel of the car passing over his leg. The defendant company denies that it was negligent in the operation of its train at the time of the accident, and its testimony tended to show that no passengers were in the act of entering the passenger coach or were in sight at the time the train started, that the coach was not crowded, that the train did not stop when it went out of the switch but only slackened its speed and there was no jerking or jolting, that the plaintiff was improperly standing on the platform after the train started, apparently trying to hail some one by waving his hands when he fell from the coach and was injured.

It is apparent, we think, that the court could not, under the testimony, have withdrawn the case from the jury, as requested by the defendant company. The jury had ample testimony before it to justify a verdict for the defendant, but the evidence of the plaintiff was sufficient, if believed, to warrant the finding that the plaintiff’s injuries resulted from the negligent operation of the train. It is the duty of a carrier to give intending passengers a reasonable opportunity to enter the train in safety before it is started, and the failure to do so, resulting in injury to a passenger, is actionable negligence for which the carrier is liable. The learned judge so instructed the jury, and no error is assigned to the charge. The court, after saying to the jury that if a passenger was injured by being improperly on the steps or if he voluntarily rides on the steps or platform of a car when he can be accommodated within and is injured thereby the carrier is not responsible, then said: “If you should find that the plaintiff boarded the train in question pursuant to the ‘call/ before the signals were given and the train started, got upon the second step and could not proceed any further on account of the platform being blocked by people, and while hanging on was precipitated or thrown off by reason of a jerk, resulting from the stopping or slackening of the train and there was no fault on his part, he would be entitled to recover, if such a state of facts is clearly established.” We think the case was for the jury, and it was properly submitted.

Judgment affirmed.


text:
    Shaffer’s Estate.

      Statute of limitations — Cause of action — Conflict of laws — Act of May 22, 1895, P. L. 112.
    1. A cause of action which arose in another state and is barred by the statute of limitations, is not saved by the Act of May 22,1895, P. L. 112, which provides “that in all civil suits and actions in which the cause of action shall arise in this state, the defendant or defendants in such suit or action, who shall have become nonresidents of the state after said cause of action shall have arisen, shall not have the benefit of the statute of this state.”
    2. The phrase “cause of action” as used in the statutes fixing the jurisdiction of the courts according to where the cause of action arises, means that which creates the necessity for bringing the action. It arises when that is not done which should have been done and that is done, which should not be done.

      Statute of limitations — Promise to pay — Evidence.
    3. In order to relieve a claim from the effect of the statute of limitations there must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something from which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay. A mere general statement by the debtor that he will settle, without more, is not an acknowledgment of the debt and a promise to pay sufficient to toll the statute.
    Argued March 21, 1910.
    Appeal, No. 7, Oct. T., 1910, by Hugh Ferguson, from decree of O. C. Allegheny Co., April T., 1909, No. 172, dismissing exceptions to adjudication in Estate of Harvey Lyman Shaffer, deceased.
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      C. C. Dickey, with him W. K. Shiras, for appellant.
    We do not overlook the rule of law that claims against the estates of decedents will be scrutinized by the court with great care, but we contend that we have established the claim of appellant by proof which will bear the severest scrutiny: Harrington v. Hickman, 148 Pa. 401; Wormley’s Est., 137 Pa. 101; Harper’s Est., 196 Pa. 137.
    The statute of limitations is tolled by the removal by Shaffer of his residence from the state of Pennsylvania in the year 1891: Bates v. Cullum, 177 Pa. 633; Noonan v. Pardee, 200 Pa. 474.
    The cause of action was complete when Shaffer took the lease of the school property in his own name instead of the name of appellant, and the former was then a resident of Pennsylvania, and is so described in the lease: Hunter v. Ry. Co., 33 Tex. 381; Foot v. Edwards, 3 Blatchford, 310; Barden v. Crocker, 27 Mass. 383; Stillman v. White Rock Mfg. Co., 3 Woodbury & Minot, 538; Bulwer’s Case, 7 Coke, 49; Price v. Price, 156 Pa. 617; Weld v. Boston, 126 Mass. 166.

      Edwin W. Smith, of Reed, Smith, Shaw & Beal, for appellee.
    If we concede that Shaffer was employed by Ferguson as his agent, and that the contract of employment was made in Pennsylvania, the breach of the con-

      April 18, 1910:
    tract, that is, the act of Shaffer which gave any right of action that Ferguson may have had, was in Tennessee, and the cause of action therefore arose in that state: Noonan v. Pardee, 200 Pa. 474; Miller v. Hallock, 9 Colorado, 551' (13 Pac. Repr. 541); Rodgers v. Mut. Endowment Assn., 17 S. C. 406; Shelby Steel Tube Co. v. Gun Co., 40 N. Y. Supp. 871; Durham v. Spence, L. R. 6 Ex. Cas. 46; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367.
    The conversation between Lare and Shaffer at which Ferguson was not present is, we think, of no value: Gleim v. Rise, .6 Watts, 44; Kensington Bank v. Patton, 14 Pa. 479; Shaeffer v. Hoffman, 113 Pa. 1; Miller v. Baschore, 83 Pa. 356.
   Opinion by

Mr. Justice Moschzisker,

Hugh Ferguson presented a claim against the estate of Harvey Lyman Shaffer, deceased. It was disallowed on two grounds: 1. Insufficiency of proof to sustain the claim. 2. The bar of the statute of limitations. The matter is now before this court on the appeal of the claimant.

In the' year 1889 or 1890 Ferguson had been in Tennessee looking up some ore properties. He returned to Pitts-burg and made an arrangement with Shaffer to go to Tennessee. The details of this arrangement are not shown, but it appears that Shaffer was to secure a lease of a mineral property known as “Ducktown School Lot.” Ferguson was to advance the necessary money, and after such advances were paid back to him, he and Shaffer were each to have a one-half interest in the lease. Shaffer went to Tennessee, and secured the lease in his own name on January 21, 1891. Ferguson was dissatisfied with this, and went south to see Shaffer. They had a meeting in Tennessee on February 20, 1891, and Ferguson then and there accepted a written assignment from Shaffer of a one-half interest in the lease.

A corporation was organized under the laws of Tennessee called the Pittsburg & Tennessee Copper Company. Shaffer and Ferguson were two of the incorporators, and at the first meeting, held in Pittsburg, June 23, 1891, a resolution was passed that $50,000 in stock be given to Ferguson and Shaffer for this leasehold. At this meeting Ferguson abused Shaffer, and made a demand on him for the lease. On October 2, 1891, Shaffer assigned his one-half interest in the lease to the Hiwasse Company of Boston, through one Eager, who paid him $10,000 as a consideration for the assignment. On February 19, 1892, Ferguson transferred his one-half interest to the copper company, and received in payment $25,000 of the capital stock. The company then entered into negotiations with Shaffer to purchase his interest, and decided to acquire it for $12,500. On August 25, 1892, however, Ferguson purchased the interest in his own name for $12,000, and secured an assignment from the Hiwasse Company. So far as the evidence shows this transaction took place in either Boston or New York. On November 2, 1893, Ferguson assigned this interest to the copper company, and received $25,000 of its stock in payment. The copper company subsequently became insolvent.

In April or May of 1906 Shaffer came to Pittsburg and met Ferguson. “Shaffer walked up to him, extended his hand and said, ‘Hugh, oh, let by gone be by gone.’ Ferguson looked up with a very angry expression coming over his face, and quickly said: ‘If that is the case, you had better pay me what you owe me.’ Shaffer said: ‘Hugh, the next time I come to Pitts-burg we will take up our Tennessee matter, and I will pay you what you are out.’ ” The witness Bare who testified to this occurrence said that Shaffer remarked to him “that was an awful cold reception the old man gave me.” To which the witness replied: “You deserved it.” And Shaffer said: “1 intend to take that matter up with him [Ferguson] and settle it with him.”

The court below finds that: “Shaffer was a native of Pittsburg and a citizen of this state until 1890 or 1891, when he became a citizen of Georgia, and later a resident of New York; he frequently was in Pittsburg; but there is no evidence that he was a citizen of Pennsylvania after that time.”

Ferguson claimed $12,500, the amount paid by him to acquire the interest in the lease that Shaffer had assigned to the Hiwasse Company, with an alternative claim of $10,000, the amount which Shaffer received from Eager when he sold the interest to the Hiwasse Company; on the theory that Shaffer had been guilty of a breach of contract when he took the whole lease in his own name, or of a breach of trust when he sold the one-half interest to the Hiwasse Company. We are of opinion that the claims were obviously stale and barred by the statute of limitations.

But the appellant contends that they were saved from the bar of the statute by the Act of May 22, 1895, P. L. 112, to the effect “that in all civil suits and actions in which the cause of action shall arise in this state, the defendant or defendants in such suit or action, who shall' have become nonresidents of the state after said cause of action shall have arisen, shall not have the benefit of the statute of this state.” If Shaffer was guilty of bad-faith toward Ferguson, the breach which gave rise to the right of action, whether it was in wrongfully taking the lease in his own name in January, 1891, or in the sale of his interest to an outsider in October, 1891, occurred outside of the state of Pennsylvania. “A cause of action is that which produces or affects the results complained of:” Noonan v. Pardee, 200 Pa. 474. The phrase “cause of action” as used in the statutes fixing the jurisdiction of the courts according to where the cause of action arises, means that which creates the necessity for bringing the action. It arises when that is not done which should have been done, or that is done, which should not be done: Durham v. Spence, L. R. 6 Ex. Cas. 46; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. The cause of action having arisen outside of the state, the present case does not fall within the act of 1895.

On the question of the acknowledgment of the debt, the trial judge states: “It does not appear that this claim was the subject of the conversation between Shaffer, Lare and Ferguson in 1905, or 1906; a settlement was mentioned; but of what? A promise to pay Ferguson what he was out, or to settle with him, is far from a promise to pay Ferguson $12,500 with interest for eighteen years. The long lapse of time would seem to exclude the claim as presented as the subject of this conversation. . . . Ferguson had abundant opportunity to enforce his demand against Shaffer; the latter had become a man of wealth; he was frequently in Pittsburg, and was easily found in New York. . . . Finally, this claim is within the class subject to the closest scrutiny because of its age and the attendant circumstances. It is especially in that class of claims which requires the claimant to proceed with diligence against his alleged debtor living, and not to wait until his opponent’s lips are sealed.” This is a correct view of the case. The words used by Mr. Justice Gordon in Miller v. Baschore, 83 Pa. 356, are applicable here: “The evidence was not sufficient to relieve the claim from the effect of the statute of limitations. In order to effect such a result there must be a clear and definite acknowledgment of the debt, a specification of the amount due or a reference to something from which such amount can be definitely and certainly ascertained, and an unequivocal promise to pay. In the case under consideration the acknowledgment and undertaking of the defendant lack these essential characteristics.” In Gleim v. Rise, 6 Watts, 44, the plaintiff sent a messenger to the defendant to inquire about the collection of the debt. The defendant said that the plaintiff need not trouble himself, “that he would be down and settle with him.” We held: “There was nothing improbable in supposing that a man who says he will come down and settle, believes that there is nothing due by him, and had no idea that he was admitting himself to be in debt. The acknowledgment must go to the fact that the debt is still due.” In Kensington Bank v. Patton, 14 Pa. 479, we said: “The promise to pay must not be vague, shadowy and uncertain; it must be plain, unambiguous and express, and such as to preclude hesitation and doubt;” and in Schaeffer v. Hoffman, 113 Pa. 1: “The decisions of this court apply very strict rules to acknowledgments to take a case out of the statute of limitations. We mean to adhere to them in letter and spirit.” The acknowledgment depended upon was not sufficient under the authorities to toll the statute.

The assignments of error are overruled, and the decree is affirmed at the cost of the appellant.


author: Mr. Justice Mestrezat,

text:
    Showell v. Barr, Appellant.

      Promissory notes — Affidavit of defense — Failure of consideration.

    1. In an action upon promissory notes where the plaintiff is the indorsee of the payee and took the notes after maturity, and the statement does not aver that the plaintiff is a holder in good faith and for value, and that at the time the notes were negotiated he had no notice of any infirmity in the instrument, an affidavit of defense is sufficient which avers failure of consideration caused by certain acts of the payee in violation of his express agreement inducing the execution of the notes, and that the notes were “ put into the hands of plaintiff under a collusive arrangement to assist the payee in collecting them contrary to the defendant’s rights.”

      Promissory notes — Patent rights — Corporations—Act of April 12,1872, P. L. 60.

    2. Promissory notes given in payment for the stock of a corporation to which the payee of the notes has assigned patent rights, are not within the contemplation of the Act of April 12, 1872, P. L. 60.
    Argued March 21, 1910.
    Appeal, No. 379, Jan. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1909, No. 2,452, making absolute rule for judgment for want of a sufficient affidavit of defense in case of E. B. Showell et ah, trading as Showell, Fryer & Company, v. J. H. C. Barr.
    April 18, 1910:
    Before Fell, C. J., Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Assumpsit on promissory notes.
    The notes in suit were two collateral promissory notes each for $1,250. The plaintiffs were the indorsees of the payee. The defendant was the maker.
    In addition to the facts set forth in the opinion of the Supreme Court it appeared from the affidavit of defense that the notes in suit were given in payment for the stock of a corporation to which Harry F. Hall, the payee, had assigned certain patents. The court made absolute rulé for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      C. Oscar Beasley, for appellant.
    Agreements and conditions made at the time a note is delivered, which agreements and conditions are violated by the payee, should cause the case to go to a jury: Growler Copper Co. v. Teti, 221 Pa. 36.
    The notes in suit are not recoverable on by plaintiffs, because they have not the words “Given for a Patent Right” written across their face as required by the Act of April 12, 1872, P. L. 60: Northern Securities Co. v. U. S., 193 U. S. 197 (24 Sup. Ct. Repr. 436); Hunter v. Henninger, 93 Pa. 375; Horstmann v. Zimmerman, 4 Atl. Repr. 171; Kinney v. Citizens’ B. & L. Assn., 37 Pa. Superior Ct. 425.

      Bernard F. Owens, with him Joseph Levy, for appellees.
   Opinion by

Mr. Justice Mestrezat,

This is an action of assumpsit brought by the holder against the maker to recover the debt and interest alleged to be due on two promissory notes. The learned court below entered judgment for want of a sufficient affidavit of defense, and the defendant has taken this appeal.

We do not think this is a case for summary judgment. The plaintiff is the indorsee of the payee and took the notes after maturity. The statement does not aver that the plaintiff is a holder in good faith and for value, and that at the time the notes were negotiated he had no notice of any infirmity in the instrument. The affidavit of defense avers failure of consideration, caused by certain acts and conduct of the payee in violation of his express agreement inducing the execution of the notes. The defendant further avers that after the maturity of the notes in suit they were “put into the hands of plaintiffs under a collusive arrangement to assist said Hall (payee) in collecting said notes contrary to the defendant’s rights.” While the affidavit certainly lacks clearness and conciseness, we think, under the pleadings, it is sufficient to send the case to a jury so that the issue may be determined after a full development of all the facts. The notes were not given for a patent right within contemplation of the Act of April 12, 1872, P. L. 60, and the averment in the affidavit in reference thereto is without merit as a defense.

The judgment is reversed with a procedendo.