text:
    Hicks, Appellant, v. Harbison-Walker Company.

      Evidence—Release of damages—Parol evidence—Negligence.

    In an action to recover damages for personal injuries where the defendant sets up a release of damages, the court commits no error in charging that the release is an effectual bar to recovery, where it appears that the release was not given until several months after the accident, that the plaintiff’s testimony that he signed it merely as a receipt for money given him as a donation, is not corroborated and is contradicted by two witnesses, and that the plaintiff who could not read, did not request that the release should be read to him, or that its contents should be made known to him through a disinterested person.
    It is error to submit a question of fraud to a jury to overturn a written instrument upon slight parol evidence. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury.

      Evidence—Cross-examination—Witness—Harmless error.

    A party cannot complain that he was not allowed to cross-examine a witness as to a matter alleged to be pertinent, where it appeared that he subsequently called the witness himself, and had full opportunity to have him testify as to the matters contained in the rejected offer.
    Argued April 20, 1905.
    Appeal, No. 115, Jan. T., 1905, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. Term, 1902, No. 24, on verdict for defendant in case of Joel Hicks v. The Harbison-Walker Company.
    Before Dean, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Woods, P. J.
    The facts appear by the opinion of the Supreme Court.
    When G. B. Lukens, a witness for defendant, was on the stand he was asked the following question:

      Q. What was said as an inducement for Mr. Hicks to sign this paper?
    Mr. W. M. Henderson: That is objected .to as not cross-examination.
    Mr. Beers: I proposed to ask the witness what was done and said at the time Mr. Hicks signed this paper as an inducement.
    Mr. W. M. Henderson: The offer is objected to for the reason that it is not cross-examination; the witness was not asked as to anything that occurred, save the placing of the signature of the plaintiff to the paper and his placing his name upon it as a witness. ■
    The Court: The plaintiff can call the witness for himself. We will sustain the objection and seal a bill of exceptions for plaintiff. [11]
    The court charged in part as follows:
    [The testimony on the part of the plaintiff reveals the fact that he was called upon while he was at his work and that he was told that be was going to get a donation and that he said he would not sign any paper, release or anything of that kind. Now, gentlemen of the jury, he had an hour or so to consider that, and when he went into the office it was his duty to acquaint himself with the contents of that paper and he intended to and finally did sign,] [5]
    He admitted that he signed it but he stated that it was done on account of the representation on the part of the company, because he cannot read. It is the duty of every man when he cannot read to inform himself of the contents of a paper before he signs it. He could have taken it home and looked it over; he could have brought some one in and had it read. It is his duty to acquaint himself with the contents of the paper, he failed to do it; and, gentlemen of the jury, that is binding on him. If any of you gentlemen have been administrators of estates and have settled up the estate, paid the heirs their money and you took a release, would you say because the person who signed that release stated that he did not know that was a release, it would not be binding upon him? [6]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1) in giving binding instructions for defendant; (5, 6) portions of charges as above, quoting them; (11) rulings on evidence, quoting the bill of exceptions.

      L. 3. Beers and W. B. Simpson, with them J. B. Simpson, for appellant.
    In case of uneducated, ignorant persons, the burden of showing the -fairness of the transaction is thrown upon the person who seeks to obtain the benefit of the contract: Hough v. Hunt, 2 Ohio, 495; Hall v. Perkins, 3 Wend. 626; Trambly v. Ricard, 130 Mass. 259; Selden v. Myers, 61 U. S. 506; Ills. Cent. R. R. Co. v. Welch, 52 Ill. 183; Schuylkill Co. v. Copley, 67 Pa. 386; Johnston v. Patterson, 114 Pa. 398; Ettinger v. Jones, 139 Pa. 218; Gibson v. R. R. Co., 164 Pa. 142.
    If the contents of the release were misrepresented to the plaintiff, an illiterate man, and it was not read or explained to him, a question of fact was raised, which was for the jury and not the court: McAboy v. Johns, 70 Pa. 9; People’s Nat. Gas Co. v. Millbury, 2 Mona. 145; Templeton v. Shakley, 107 Pa. 370.

      R. A. Henderson, with him II L. Henderson and W. M. Henderson, for appellee.
    If a party who can read will not read a deed put before him for execution; or if, being -unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which is not the subject of protection either in equity or at law: Penna. R. R. Co. v. Shay, 82 Pa. 198; Clayton v. Traction Co., 204 Pa. 536; Greenfield’s Estate, 14 Pa. 489; Gibson v. R. R. Co., 164 Pa. 142; Clark v. R. R. Co., 24 Pa. Superior Ct. 609; Sylvius v. Kosek, 117 Pa. 67.
    June 22, 1905:
   Opinion by

Mb. Justice Potteb,

This was an action to recover damages for personal injuries received by the plaintiff while in the employ of the defendant company. The plaintiff was a molder of fire brick, and while so engaged, his duty required him to use the doors of the brick kilns while pushing in trucks loaded with molded brick. On the morning of the accident, in attempting to pull down a dcor, the counterbalancing weight fell, and struck the plaintiff, causing severe injury. He was unable to work for several weeks, but when able to do so returned, and continued in the employ of the defendant company, at his former occupation. The accident occurred on August 24, 1901, and on December 7, 1901, the superintendent of the works, under instructions, paid the plaintiff $25.00 and took from him a release in full for all damages. The payment was made by means of a check, which the plaintiff took to a store, where he indorsed the check and received the money for it.

Two days afterwards he sent his wife to the superintendent of the defendant company, and offered to return the money, but it was refused.

About nine months afterwards, the plaintiff brought this suit averring that his injury was caused by the negligence of the defendant company. At the trial the release was offered in evidence, and its execution was admitted, but the plaintiff endeavored to set it aside, upon the ground of misrepresentation of its contents to him by the superintendent.

The learned trial judge was of opinion, that the release, in view of the evidence, was an effectual bar to recovery, and so instructed the jury. If the court below was correct in this view, it is controlling, and no other question need be considered in the case.

It is not suggested that the plaintiff was lacking in mental capacity, but it is alleged that he was unable to read. He testified that the paper which he signed was represented to be a receipt for the money which was given him as a donation ; but his testimony in this respect is not corroborated. It is in fact contradicted by the testimony of Mr. Lewis, the superintendent, and in so far as what happened in the office is concerned, by Mr. Lukens, the subscribing witness to the execution of the release.

The execution of the paper was not a sudden movement, for it seems that the superintendent went out into the works and told the plaintiff what it was proposed to do, and asked him to come into the office at noon and sign the paper, and get his money. If the plaintiff could not read the release, and had any doubt as to its contents, he should have requested that it be read to him ; or he could have taken it away, and informed himself, at his leisure as to its terms, through an entirely disinterested person. As Chief Justice Gibson said in Greenfield’s Estate, 14 Pa. 489: “If a party who can read, will not read a deed put before him for execution; or if being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which I take it, is not the subject of protection, either in equity or at law.” The present question is similar to that raised in DeDouglas v. Traction Co., 198 Pa. 430, in which it was held, in language quoted from Penna. Railroad Co. v. Shay, 82 Pa. 198, that it is “ error to submit a question of fraud to the jury to overturn a written instrument upon slight parol evidence. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury.”

Under the eleventh assignment of error, the appellant complains that he was not allowed to cross-examine the subscribing witness to the release, as to what was said and done at the time the plaintiff signed the release, as an inducement. The trial judge sustained the objection on the ground that it was not proper cross-examination. We think the ruling was correct, but in any event the plaintiff did not suffer by it, as he afterwards called the witness himself, and had full opportunity to have him testify as to the matters contained in the rejected offer.

We are satisfied that under the evidence with regard to the execution and delivery of the release, the learned trial judge committed no error in instructing the jury to' find for the defendant. The assignments of error are dismissed and the judgment is affirmed.


source: Caselaw Access Project

author: Mb. Chief Justice Mitchell,

license: Public Domain

text:
    Cunningham’s Estate
    (c).

      Executors and administrators—Sale—Discretion of executors.

    Where an executor is given a large discretion as to sale of real estate he will not be held liable for delaying the sale longer than was really necessary, where it appears that he was guilty of no fraud, and that the error, if it was one, was of judgment only; and this is especially the case where the result was a gain, and not a loss to the estate.
    An executor will not be held liable in making a statement to one of the beneficiaries, alleged to be false, as to the valuation of such person’s share in the estate, where it appears that if there was any error at all, it was of judgment in not fully appreciating an advancement in the value of the real estate.
    The fact that an executor, eighteen years after a legatee under the will had sold and assigned all her interest in an estate to a third person, makes a settlement for such interest with such third person who gives the executor a receipt in full for such interest, is not in itself sufficient to show that the executor was himself the real purchaser; and this is especially so where the legatee complaining was at the time of the original sale urging the executor to buy the property himself, and when the sale was made to the third party, expressed her approval and raised no question about it until nineteen years later.
    Argued April 24, 1905.
    Appeal, No. 14, Jan. T., 1905, by S. A. Davenport, from decree of O. C. Erie Co., Sept. T., 1900, No. 8, sustaining exceptions to auditor’s report in Estate of Anua C. Cunningham, deceased.
    Before Mitchell, C. J., Dean, Pell, Brown and Elkin, JJ.
    Reversed.
    Exceptions to report of E. L. Whittelsey, Esq., auditor.
    From the record it appeared - that Anna C. Cunningham, testatrix, died January 18, 1866, leaving a will by which she appointed Joseph M. Sterrett and S. A. Davenport, executors. She left to survive her children of a granddaughter, and an adopted daughter, Mary Cunningham, who in 1876 married F. E. Barrows. By the will the executors were authorized to sell the whole or any part of the real estate “ in such parcels and at such times as they shall deem advisable, and to make all necessary deeds and leases.”
    The auditor reported, inter alia, as follows :
    Twenty-ninth ; To the 81st of January, 1880, the accountant had sold real estate amounting1 to $58,882.50, and received from the personal estate $1,374.76, making a total of $60,207.26, exclusive of the interest on the purchase money. The accountant bad paid out at this time $5,505.76, besides payments made by him to legatees, not including any charge for his compensation, leaving a balance of $54,701.50.
    If this whole amount had been paid in cash and a distribution thereof then made to and among the legatees named in the will, Mary C. Barrows would have been entitled to ten-forty seconds of the same, or $13,024.10.
    The accountant had paid her, prior to January 31, 1880, $14,858. There was therefore nothing in the hands of the accountant belonging to Mary C. Barrows at the time of the interview between her husband, the accountant and herself, on January 81, 1880.
    At this interview, the accountant promised to advance Mrs. Barrows $1,000 on her share in the estate.
    This promise and advancement is referred to in a letter dated April 19, 1880, from Mary C. Barrows to S. A. Davenport, in which she says:
    “We will not call upon you for any more money than is positively necessary. It costs so much to get started, stoves, carpets and furniture we must have. We owe about $150 on what we have. Can you send us $200 now ? ”
    There was much other correspondence to the same effect, the most important of which are the following:
    On February 28, 1881, Mrs. Barrows wrote a letter to Mr. Davenport, in which she says: “Now Mr. Davenport could you advance us $1,500 on those lots, letting us pay interest on it ? If you do not think that best perhaps you would buy my share which would please us better. You told the doctor and also wrote in the statement that you thought those lots were worth $3,500. We have talked it over and think that if you would give us $2,500 for them, deducting the money that you have sent us with interest from that sum we would have sufficient money to pay half down and then pay our remaining debts ....
    “We do hope that you will think it best to take the land at that price or if you will allow us $2,400, we can then get out of debt and pay the half on the lot.”
    Mr. Davenport replied to this by letter dated March 2,1881, as follows :
    “ Yours of the 28th of February has been received.
    “ If I was to sell the remaining real estate belonging to the estate of your grandmother at present prices, I should not be able to realize $2,500 for your interest in it or near that sum in all probability : but by waiting I trust to get that much for it and more too. I am anxious that you should realize as much as possible out of the property and in order to do this, it certainly is not advisable to force the sale of the property at present, and it is equally plain to me that you ought not to sell y our interest. IE yon would surely be able to buy property so low as to justify making a sacrifice in Erie, then you might with propriety do so, but from what you have written me, I very much question the propriety of your buying the property referred to, inasmuch as you will be able to pay only one-half of the purchase money even if I can find any one to pay you for your remaining interest $2,400.
    “ Do act carefully and remember you have but little left, and unless it is well cared for will speedily be gone. If you insist upon selling write me again and I will see what can be done.”
    On May 17,1882, Mrs. Barrows wrote:
    “• I have been thinking for some time if you could sell that land, or perhaps buy it yourselE and settle up with us it would be so much better. Of course, we have to pay the interest for two years on the money you lent us, and if the property is held longer, when it is sold we will realize nothing from it.”
    Mr. Davenport replied in letter dated June 3,1882, in which he says : “ .... Now it appears to me that it would be foolish to sell the unsold real estate left of your grandmother’s estate, at present. It is constantly increasing in value and eventually I hope to sell it for enough so that you will have more than sufficient to reimburse me what I have advanced for you. As for your selling any possible interest you may have, it seems to me that it will be more than difficult to ascertain its value. Until the land has been sold, no one can tella how much it will sell for. My advice is to wait and will get all out of it I possibly can. You know I am anxious to aid you, but I don’t want to go too far nor do I suppose you will ask me to make advances which in all probability I shall never get. Of course, if you insist, I will try in some way to close out the balance of the property at some price and pay you any balance there may yet be due you. '
    In a letter written by Mary C. Barrows to the accountant, dated October, 1882, she says:
    “ For a number of weeks I have been at the point of writing to you asking you if you were willing to give us $500 for those lots and take a deed for them. You have written that they are worth more than that, and having them in your possession you may realize a nice profit on them. We are so hard up now and cannot get money anywhere without security. . . . I know doctor wrote to you asking for the money on mortgage but I was afraid you might not want to give it in that way and thought that perhaps you might think it best to give us the $500 and call our indebtedness to you cancelled. If you can see it in the same light I shall be happy. I know you will be too not to have any more worrying letters from us. If you wish to do so please send me a deed and I will sign it over to you.”
    The accountant replied by letter dated October 16, 1882, in which he says :
    “ Both your letter and the doctor’s received. I have been out of town and only returned Saturday evening. I regret that circumstances seem to require you to sell your remaining interest in the Cunningham estate, because I had hoped that real estate would so appreciate that you might yet receive considerably more than you have. I wish I was able to make a loan, but I am not, and so can only try and obey your behest and borrow from someone else or sell. I don’t believe I can borrow and will probably have difficulty in finding a purchaser, still I will see what can be done at once and write you fully.”
    In a letter from Mrs. Barrows to Mr. Davenport, dated October 18, 1882, apparently a reply to the letter of October 16, 1882, she says: “ .... I know that you have always been interested in me and wanted to do the best for me that you could. I did not like to go against your judgment regarding that property but as have written we are in quite a dilemma. It seems to me that if you sell the land for as much as possible it -írould enable, us to settle up with everyone and if anything remains we can put it in the bank to draw interest.
    On October 25, 1882, Mr. Davenport wrote to Mrs. Barrows as follows:
    “I have at last found a purchaser for your remaining interest in the Cunningham estate, if you still desire to sell. John F. Miles, after looking into the matter carefully and figuring on the amount I have already paid you, has stated to me that he will pay you $500 for your interest, but desires you to give him a statement of the amounts you have received from me. I assured him I had your receipts, but he replied that he wanted something to show which he could hold so I have prepared the within statements, which, if correct, both you and the doctor will please sign and then send it to me. Mr. Miles has written the enclosed conveyance which both you and the doctor will sign and acknowledge before a notary public, who has a seal, or before a Justice of the Peace..... This much I have done at your request; now, if you can get along without selling by all means do so. My reason for giving you this advice, I have stated to you again and again. I can’t sell the property at present, excepting at a sacrifice. I believe real estate is advancing in price and that eventually I shall be able to get you more than $500 out of the estate. I would like to have you get all I possibly can for you, therefore I again write you as I do. Hoping you may devise some plan by which you will not be obliged to sell, I am, etc.”
    On October 28, 1882, Mrs. Barrows wrote a letter to Mr. Davenport, as follows, viz.: “ Theletter and papers are received. I hope the conveyance is made out satisfactorily. We are obliged to sell there is no alternative. We both thank you for attending to the business so promptly. We are packing our goods now, preparing to leave next. When we see the five hundred dollars we shall be happy mortals. I will let you know occasionally how we get along.
    “ The statement is correct. I have written in haste.”
    Thirty-second: Some time in October, 1882, before Mr. Davenport wrote the letter of Oct. 25, John'F. Miles agreed to purchase Mrs. Barrows’ interest in the estate of Anna C. Cunningham and pay therefor the sum of $500. He talked with Mr. Davenport, the accountant, about it, who showed him letters from Mrs. Barrows in which she expressed a desire to sell; examined the real estate belonging to the estate as far as he knew and went over the account and the amount that had been paid to Mrs. Barrows; also examined the map or plot of the land that had been sold; the amount for which each lot had been sold was marked on the map or plot and the account of the sales as shown by the books kept by Mr. Davenport. He asked Mr. Davenport to prepare a statement of payments made to Mrs. Barrows showing that the several amounts charged to her on Mr. Davenport’s book were correct, to be signed by Mrs. Barrows and her husband that he, Miles, could keep. Accordingly statement was prepared for that purpose. Mr. Miles himself wrote an assignment from Mary C. Barrows and her husband to himself. The two papers were sent by mail by Mr. Davenport to Mrs. Barrows at West Winsted, Connecticut. Mr. Miles purchased a New York draft for $500 and left it with Dr. Davenport to be sent to Mrs. Barrows on receipt by him of the two papers properly executed; the papers were returned to Mr. Davenport properly executed ; and he delivered them to Mr. Miles and forwarded the draft for $500 to Mrs. Barrows.
    Exhibit “ O,” as delivered to Mr. Miles is as follows, viz.:
    “ Know all men by these presents that we, F. E. Barrows and Mary C. Barrows, his wife, of West Winsted, Connecticut, for and in consideration of the sum of five hundred ($500.00) dollars to us in hand paid by John F. Miles, of Erie, Penna., do hereby sell, assign and convey and unto the said John F. Miles, his heirs and assigns, all of the remaining interest of the said Mary C. Barrows, tobe the same real estate or personalty of in and to the estate of Anna C. Cunningham, late-of Erie, Penna., deceased, and the said John F. Miles is hereby entitled’ to receive and hold as his own property all of my said remaining interest in the estate of said decedent what ever the same may be; the understanding being that said Miles hereby takes the said interest subject to all payments and advances heretofore made to me as one of the legatees of said named deceased and as and is’subject-to all of the rights and equities under the will of said decedent as the said Mary C. Barrows would have been, had she not sold her interest as stated above to said Miles, his heirs and assigns.”
    Thirty-third: All of the negotiations for the sale by Mrs. Barrows of her interest in the estate of Anna C. Cunningham to John F. Miles, were by letters which passed between Mr. Davenport and Mrs. Barrows, he being at the time in Erie, Pa., and she in West Winsted, Ct. John F. Miles did not see and talk with Mrs. Barrows or have any correspondence with her in relation’' to it.
    Thirty-fourth: The accountant is an attorney at law in active practice and had been doing a large amount of business for many years for John F. Miles and was also a joint owner in real estate with him. That on November .16, 1900, the accountant had a settlement with Miles, in and by which, among other things, he gave Miles a receipt in full for services rendered by the accountant to Miles and transferred to Miles some lots on Nineteenth street, in the city of Erie. In consideration of which Miles gave the accountant exhibit “ P,” which is as follows, viz.: “Reed. Erie, Pa., Novr. 16th, 1900, from S. A. Davenport, the Executor of the Estate of Mrs. Anna C. Cunningham, deed., payment and satisfaction in full of the proportion of her Estate (10-42) to which Mrs. Mary C. Barrows, late Mary C. Cunningham, was entitled, which was bought from her by me October 25, 1882.
    “John F. Miles.”
    Thirty-fifth: Mrs. Barrows had knowledge as to the increase in the value of the land belonging to the Cunningham estate, before the settlement between Davenport and Miles, as appears by letter from Mi'S. Barrows to Mr. Davenport, dated September 23, 1890, exhibit No. 9, in which he says : “ Your note has just been forwarded to me from Clinton. How I regret now that I have no final interest in the settlement of affairs—just to think how that property has increased in value is perfectly wonderful. If I had not sold out my interest I would have been able to do at great advantage to myself. What a pity that we cannot see into the future. A man from Erie came to me several years ago and wanted me to resell my interest to him. I told him I had given it up and could do nothing else. We have been waiting all these years to get ahead a little so as to go west into a larger field. My husband is nearly killing himself with a country practice. I often think of that foolish sale giving up all title, for now I would have had a couple of thousand dollars to start somewhere else. Mr. Miles has made a great deal, but ‘ there is no use crying over spilt milk.’
    Appellant was twenty-one the 12th of April, 1873, and made no objection to the sale to Miles until the hearing before the auditor September 3, 1901, when she appeared by attorney and objected to the admission of the assignment from herself and husband to John F. Miles.
    Thirty-six : The accountant paid to Mrs. Barrows to apply on her share of the estate, the sum of $15,698, which added to the $500 received from the sale of her interest to John F. Miles, makes a total of $16,468 received by her for her interest in the estate.
    The auditor reported, amongst others, the following conclusion of law.
    10. Mary Cunningham Barrows is not entitled to participate in the distribution; she having sold and conveyed all of her interest in the estate to John F. Miles.
    Exceptions to the auditor’s report were sustained by the court, Miller, P. J., specially presiding and Mrs. Barrows was awarded the sum of $7,741.87 with interest from September 1, 1898.

      Errors assigned were in sustaining exceptions to the auditor’s report.

      J. M. Sherwin, for appellant.
    Auditor’s findings have the effect of verdict of jury : Platt-Barber Co. v. Groves, 193 Pa. 475; McConnell’s App., 97 Pa. 31; Penn Bank’s Estate, 152 Pa. 65.
    The assignment made by Mrs. Barrows in 1882, has been affirmed and ratified by her and she is estopped from denying the same : Laird v. Union Traction Co., 208 Pa. 574; Savory v. North East Borough, 26 Pa. Superior Ct. 1; Wright v. Burbank, 64 Pa. 247; Kramer v. Dinsmore, 152 Pa. 264; Gibson v. R. R. Co., 164 Pa. 142.
    Mrs. Barrows is estopped from denying the validity of the assignment to Miles, because Miles and accountant acted upon the faith of it: Barnholt v. Ulrich, 11 W. N. C. 51; Smith v. McNeal, 68 Pa. 164.

      L. E. Torry, for appellee.
    A party acting in a confidential or trust relation cannot reap any advantage from his false statements or fraudulent concealments: Newbold’s App., 80 Pa. 317; Darlington’s Est., 147 Pa. 624; Stepp v. Frampton, 179 Pa. 284; Diller v. Brubaker, 52 Pa. 498; Kuhn’s App., 87 Pa. 100: Darlington’s App., 86 Pa. 512,
    This evidence shows that Mrs. Barrows was laboring under a misapprehension as to the value of her interest at the time of the assignment, because of the false statements to her, and the withholding of information from her by the accountant, and this induced the contract: Com. to use v. Julius, 173 Pa. 322; McGrann v. R. R. Co., Ill Pa. 171.
    That the auditor’s report is not binding on the lower court, or even if affirmed by the lower court by the court of last resort; we wish to cite the following authorities : Hindman’s App., 85 Pa. 466; Kutz’s App., 100 Pa. 75; Miller’s App., 102 Pa. 544.
    June 22, 1905:
   Opinion by

Mb. Chief Justice Mitchell,

Full consideration of the evidence in this case has brought us to a different conclusion from that of the court below. The auditor and the court have both reviewed the facts in detail, and it would serve no useful purpose for us to do likewise. It will be sufficient to indicate our conclusions briefly and generally.

The will gave the executor large discretion and he interpreted his powers liberally. Instead, therefore, of pursuing the directions of the will strictly he followed his own judgment. His management was somewhat dilatory, with an inclination to postpone sale perhaps longer than was really necessary, but the error, if it was one, was of judgment only. There is no evidence which in any fair view supports the charge of fraud. He assumed the risk of loss to himself by departure from strict compliance with the will, but the result was gain and not loss to the estate. After a management of twenty-two years which even if dilatory in realization was careful, attentive and successful, he filed an account (with many payments to the heirs in the meantime) showing an increase of the estate in his hands to threefold the appraisement and expectation.

Two facts are of special importance in the view taken by the court below. One a statement of account sent to Mrs. Barrows by the appellant in 1876. The court holds the accountant responsible as if for a fraudulent misstatement, but we fail to see any evidence that the error in the valuation of appellee’s share in the estate, if it was an error at all at that time, was in anything but judgment in not fully appreciating the advancement in the value of real estate.

The other fact is the sale of Mrs. Barrows’ interest to Miles in 1882. The court found that the accountant was himself the real purchaser, but on no better evidence than that in a settlement eighteen years later, of some matters between Miles and the accountant, the latter took a transfer of the interest from Miles to himself. And this in the face of the fact that there was no reason for such a secret and roundabout action as both Mrs. Barrows and' her husband were at the time writing to the accountant, urging him to buy the interest himself, and when the sale to Miles was made both she and her husband wrote expressing their thanks and satisfaction, and made no complaint until nineteen years later. So serious an accusation should have a less flimsy foundation to rest upon. The truth is that it was the ordinary case of a needy legatee in haste to realize, insisting on a sale against the advice of the executor, and then after the lapse of years, seeing the loss resulting from her own improvidence, making an ungrateful effort to shift the blame to other shoulders.

The auditor’s findings of facts and treatment of the case are not only prima facie entitled to be regarded as correct, but are in themselves convincing.

The decree is reversed and distribution directed to be made in accordance with the report of the auditor. Costs to be paid by -the appellee.


author: Per Curiam,

text:
    Cunningham’s Estate
    (No. 2).
    Argued April 24, 1905.
    Appeal, No. 104, Jan. T., 1905, by Mary C. Barrows, from order of C. P. Erie Co., Sept. T., 1900, No. 8, dismissing exceptions to auditor’s report in estate of Anna C. Cunningham, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown and Elkin, JJ.
    Affirmed.
    Exceptions to auditor’s report.
    The error alleged was in not charging the accountant with interest on yearly balances in his hands.

      L. E. Tor rey, for appellant.

      J. M. Sherwin, for appellee.
    June 22, 1905 :
   Per Curiam,

This is a cross appeal from the same decree already considered in Cunningham’s Estate, ante, p. 441. The view of the case there taken disposes of the whole case.

Appeal dismissed at the costs of appellant.


author: Pee Cueiam,

text:
    Wood, Appellant, v. Harris.

      Statute of limitations—Assignment for creditors—Allowance of dividend.

    The allowance of a dividend out of an assigned estate and the payment thereof by the assignee will not toll the statute of limitation, either as an implied promise to pay oi as an adjudication of the debt. No new promise by the assignor can be implied from the act of the assignee and the adjudication by an auditor is against a particular fund only.
    Argued April 25, 1905.
    Appeal, No. 37, Jan. T., 1905, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1904, No. 182, for defendant non obstante veredicto in case of Walter A. Wood Mowing and Reaping Machine Company v. Samuel J. Harris.
    Before Mitchell, C. J., Dean, Fell, Brown and Elkin, JJ.
    Affirmed.
    Assumpsit for a debt originally evidenced by promissory notes. Before Biddle, P. J.
    From the record it appeared that in 1888, the firm of Samuel J. Harris & Brothers made an assignment for creditors. The assignee filed an account which was confirmed by the court, and a balance was distributed among the creditors in 1890. The plaintiff as a creditor of Samuel J. Harris individually and of the firm of S. J. Harris & Brother received a dividend on certain promissory notes held by it. The present suit was brought to recover the balance due on the notes. The plaintiff contended that the adjudication of the auditor, confirmed by the court, made the balance due a debt of record, and that the statute of limitations therefore did not apply.

      Yerdict for plaintiff subject to question of law reserved.
    On a motion for a judgment non obstante veredicto Biddle, P. J., filed an opinion which was in part as follows :
    The plea of the statute of limitations in this case must prevail under the authority of Light’s Estate, 136 Pa. 211. It was there held that the allowance of a dividend out of an assigned estate, and the payment thereof by the assignee, do not toll the statute, either as an implied promise to pay or as an adjudication of the debt. No new promise of the assignor can be implied from the act of the assignee, and the adjudication by an auditor is against a particular fund only. The foregoing decision has never been in any respect modified, so far as we know, and it is therefore controlling in the disposing of the pending question.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      F. H. Soffer, for appellant.

      F. M. Biddle, Jr., for appellee, was not heard.
    June 22, 1905:
   Pee Cueiam,

This judgment is affirmed on that part' of the opinion of the court below which relates to the statute of limitations.


text:
    Peterson’s Estate.

      Parent and child—Adoption—Intention—Decree of court—Act of May 19, 1887, P. L. 125—Evidence—Ambiguity.

    The cardinal fact in the adoption of a child is the intention of the adopting parent, and not the literal decree of the court. The court has veto power to refuse to sanction the adoption unless satisfied that the'welfare of the child will be promoted by it, but beyond that, its action is only confirmatory of the action of the parent.
    A husband petitioned the court for leave to adopt a child. The petition was in the singular number. Before a decree was entered the wife signed the petition and the prayer thereof was changed for a decree that the child might “have all the rights of a child and heir of the petitioners.” The decree also recited that the welfare of the child “will be promoted by the adoption as the child and one of the heirs of the petitioners." The wife treated the child as her own child during a long subsequent life. Held, that the child was entitled to participate as a beneficiary in the distribution of the estate of the wife after the latter died intestate.
    Where ambiguity is introduced into a writing by verbal changes which either should have been made in additional places, or not made at all, the presumption in favor of the validity of affirmative action should prevail.
    Argued April 25, 1905.
    Appeal, No. 120, Jan. T., 3905, by Hattie Peterson, from decree of O. C. Crawford Co., Sept. T., 1901, No. 5, dismissing exceptions to auditor’s report in Estate of Laura Peterson, deceased.
    Before Mitchell, C. J., Dean, Fell, Blown and Elkin, JJ.
    Reversed.
    Petition for the adoption of a child.
    Exceptions to report of .James R. Andrews, Esq., auditor.
    From the record it appeared that the question involved was the right of Hattie Peterson to share as an adopted child in the ■ distribution of the estate of the intestate.
    The petition of adoption was as follows :
    “ The petition of Samuel Peterson of the city of Meadville in said county, respectfully represents: that he is desirous of adopting Hattie Nickerson, child of Ann Nickerson, as one of his heirs,—and for that purpose he herein declares his said desire and also that he will perform all the duties of a parent to the said Hattie Nickerson.
    “ The petitioner further represents that the said child is about three years of age, that about one and half years ago the mother of said child left her with the petitioner, and that since that time has been supported by him, that he has no knowledge of the whereabouts of the child’s parent and believes her to have been abandoned.
    “ The petitioner therefore prays the court, if satisfied that the welfare of the said child will be promoted by such adoption, and having the consent of the directors of the poor of said county hereto attached, to decree that the said Hattie Nicker-son may assume the name of Hattie Peterson, and have all the rights of a child and heir of the petitioners and be subject to the duties of such child.
    “ Samuel Peterson.
    “ Laura Peterson.
    “ Crawford County, ss.
    “ Samuel Peterson, the petitioner above named, being sworn says that the foregoing petition is correct and true.
    “ Sworn to before me this 9th day of January, 1872.
    “ H. B. Brooks, Prothy.”
    The decree of adoption was as follows:
    “And now, January 15, 1872, upon the petition of Samuel Peterson and it appearing that Hattie Nickerson, the child therein mentioned, has been supported by the petitioner for one and half years past, and the court being satisfied on due consideration that the welfare of the said Hattie Nickerson will be promoted by the adoption as the child and one of the heirs of the petitioners, with the consent of the directors of the poor of said county, decree that the said child shall assume the name of Hattie Peterson and have all the rights of a child and heir of said Samuel Peterson and be subject to the duties of a child.” .
    The auditor reported against the validity of the adoption by the wife Laura Peterson.
    Exceptions to the auditor’s report were dismissed by the court.

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

      Thomas Roddy, with him F. P. Ray and Myron Parle Paris, for appellant.
    An obligation of one person is in terms binding on all who sign it: Knisely v. Shenberger, 7 Watts, 193; Klapp v. Kleckner, 3 W. & S. 519; Leith v. Bush et al., 61 Pa. 395; Shep. Touch. 367, 375.
    The decree was valid: Wolf’s App., 22 W. N. C. 93; Caldwell’s Will, 18 Phila. 51; Lewis’s App., 10 Atl. Repr. 126; Mullany’s Adoption, 25 Pa. C. C. Rep. 561.
    A married woman with the consent of her husband may adopt a child under act of 1855 : Forest’s Application, 2 Chest. Co. Rep. 232.

      Thomas J. Prather, with him John A. Northam and Otto Kohler, for appellees.
    Parol testimony is not admissible to show the grounds of an order or decree of the court of common pleas: Gallagher v. Kenedy, 2 Rawle, 163.
    The parol testimony offered by appellant was incompetent for the reason that a decree of the court of common pleas cannot be attacked in the orphans’ court: In re Will of Eliza Caldwell, 18 Phila. 51.
    The record must be absolute verity and speak for itself; Coleman v. Coleman, 19 Pa. 100; Kostenbader v. Kuebler, 199 Pa. 246; Adams v. Betz, 1 Watts, 425; Hoffman v. Coster, 2 Wharton, 453; McMicken v. Commonwealth, 58 Pa. 213.
    June 22, 1905:
   Opinion by

Mb. Chief Justice Mitchell,

This case seems to have been argued and adjudged in the court below on the view that the only essential and governing fact on the question of adoption is the literal decree of the court. This is an error. The cardinal fact is the intent of the adopting parent. The court has a veto power, to refuse to sanction the adoption unless satisfied that the welfare of the child will be promoted by it, but beyond that its action is only confirmatory of the action of the parent, of which in the language of the statute, “ the record of the court shall be sufficient evidence.” No action by any court appears to be' absolutely essential to a valid and lawful adoption. The Act of April 2, 1872, P. L. 31, recognizes adoption by deed, and provides for the recording of the deed and a certified copy as. evidence: Ballard v. Ward, 89 Pa. 358. The more convenient system under the act of 1855, now supplied by the amended Act of May 19, 1887, P. L. 125, provides for the approval of the judge, and the decree of the court is made the statutory evidence of a fully formed and executed intent on the part of the adopting parent, just as in the analogous case of a will where the intent is the cardinal fact, the law requires, that it be signed at the end thereof, as the statutory evidence that the intent is complete and executed.

In the present case the decree is ambiguous, in that it uses both singular and plural in reference to the petition, “ And now, January 15, 1872, upon the petition of Samuel Peterson and it appearing that Hattie Nickerson the child therein mentioned has been supported by the petitioner for one and half years past—and the court being satisfied on due consideration that the welfare of the said Hattie Nickerson will be promoted by the adoption as the child and one of the heirs of the petitioners, with the consent of the directors of the poor, of said county, decree that the said child shall assume the name of Hattie Peterson and have all the rights of a child and heir of said Samuel Peterson and be subject to the duties of a child.” Turning now to the petition we find that Samuel Peterson is named first as the sole petitioner but the prayer is for a decree that the child may assume the name of Hattie Peterson and “have all the rights of a child and heir of the petitioners,” (in the plural) and the petition is signed by both Samuel and Laura Peterson. How all this came about is explained by the counsel in the case from whose testimony it appears that the petition was drawn originally in the name of the husband and after presentation to the court, the wife came in at the suggestion of the judge, and then the petition and decree already prepared were changed to conform to the changed application, but the change was made with such want of completeness as to create the ambiguity.

How far the ambiguity in the decree may be considered latent, so as to admit this parol evidence, may be open to doubt, but we may disregard such evidence entirely and still have no difficulty. The petition is the act of both husband and wife. Both signed it before the court passed upon it, and mala grammatica not vitiat chartam. A paper though drawn in the name of one is presumed to be the' act of all who sign it, and therefore when Laura Peterson signed the petition it must be presumed that she intended to make herself party to it, and this presumption is reinforced by the prayer that the adopted child shall have all the rights of- a child and heir of the petitioners.” On the face of the record, therefore, Laura Peterson was a party to the adoption, and if we look into the parol testimony as to her actual intent there is demonstration that it was not only her intention at the time to do it but her unquestioning belief through a long subsequent life that she had done so.

A similar careful examination of the decree leads to the same conclusion. The recital of the petition as that of Samuel Peterson, and of the support of the child by the petitioner, is in the singular, but the next clause which expresses the decision of the court on the essential point which its judicial duty was to consider, is in the plural—“ the court being satisfied on due consideration that the welfare of the said Hattie Nicker-son will be promoted by the adoption as the child and one of the heirs of the petitioners,” etc.

Where ambiguity is introduced into a writing by verbal changes which either should have been made in additional places or not made at all, the presumption in favor of the validity of affirmative action should prevail. In other words, as applicable to this case, it is more probable as shown by experience and therefore to be presumed, that the hand that made the alterations in the papers made fewer of them than he should have made to express his full purpose than that those he did make were accidental or unintended.

In every view the appellant’s case was clear.

Decree reversed petition and all subsequent proceedings directed to be dismissed at the cost of the appellees.


author: Mb,. Justice Potteb,

text:
    Long v. Morningstar, Appellant.

      Judgment—Opening judgment—Record—Evidence—Set-off—Forgery—Consideration. '
    On the trial of an issue to determine the validity of a judgment opened generally and without conditions, the record of the judgment is not admissible in evidence. In such a case the court cannot limit the issue to the question of the forgery of the note on which the judgment was entered; nor will the defendant be permitted to offer evidence as to set-off, but he may show want of consideration or payment.
    Argued May 1, 1905.
    Appeal, No. 133, Jan. T., 1904, by defendant, from judgment of C. P. Elk Co., April T., 1903, No. 35, on verdict for plaintiff in case of C. H. Long v. A. W. Morningstar.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.

      Issue to determine the validity of a judgment opened without conditions. Before Maybe, P. J.
    When the plaintiff was on the stand he was asked this question :
    “ Q. Did you turn over the last seven months that you collected ? A. Yes, sir; I did. Q. How much? A. I don’t exactly know how much. Q. Did you keep any record of it,?”
    The Court: What is the purpose of this. I do not see that it is cross-examination of anything. You cannot go into any business transactions outside of what you claim is in controversy here.
    Mr. Ely: Can’t we show his assets ?
    The Court: I won’t allow you to go into any other transactions. It does not matter what his other business relations were. If this note is a forgery you cannot bring in any other claim against it. Exception. [2]
    “ Q. Where did you get the $1,000 you loaned?”
    The Court: You need not answer that.
    “ Q. Isn’t it a fact that you borrowed the $1,000 from the Johnsonburg National Bank the day before you loaned it?”
    The Court: I will not allow you to ask that. We have stated what our views are and insist upon them being carried out. I will not allow all this trash to be brought in here. Exception. [3]
    “ Q. Did you have any other business transactions with A. W. Morningstar except this $1,000 you have spoken of and this $2,000 spoken of here ? A. I loaned him money after that. Q. How long after? ”
    The Court: You need not answer. Exception. [4]
    Counsel for defendant proposes to ask the witness a question on cross-examination tending to prove that the witness made a loan to the defendant of $1,000, which he boi’rowmd from the Johnsonburg National Bank about the time the disputed writing is alleged to have been executed.
    Counsel for plaintiff objects because the offer is too vague as to time and for the further reason in any event it is incompetent and irrelevant in the present issue.
    The Court: Objection sustained, evidence excluded and the bill sealed. Exception. [5]

      Verdict and judgment for plaintiff for $2,552.76. Defendant appealed.

      Errors assigned among others were (1) admission of record; (2-6) rulings on evidence, quoting the bill of exceptions ; (8) in directing a verdict for plaintiff.

      Ered II. Ely, with him W. W. Barbour and Greorge B. Dixon, for appellant,
    cited: Carson v. Coulter, 2 Grant, 121; West v. Irwin, 74 Pa. 258; Harris v. Harris, 154 Pa. 501: Shannon v. Castner, 21 Pa. Superior Ct. 294; Sossong v. Rosar, 112 Pa. 197; Woods v. Gummert, 67 Pa. 136; Hirsh v. Wenger, 182 Pa. 246; Glessner v. Patterson, 164 Pa. 224.

      Eugene II. Baird, with him Harry Alvan Hall, for appellee,
    cited: Beaty v. Bordwell, 91 Pa. 438; Stroud’s Appeal, 109 Pa. 326; Rishel v. Crouse, 162 Pa. 3.
    June 22, 1905:
   Opinion bv

Mb,. Justice Potteb,

On November 14, 1902, a judgment was entered by plaintiff against defendant upon a judgment note for $2,000, purporting to be signed by the latter and drawn to the order of the former, dated July 1, 1901, and payable one day after date. Subsequently execution was issued and a levy made. On December 22, 1902, the defendant filed a petition, averring that he did not sign the note or authorize any other person to sign it, and that he was not indebted to the plaintiff in any sum whatever, and prayed that the execution be stayed, the judgment opened, and the petitioner let into a defense. A rule to show cause was granted and afterwards made absolute by agreement. On February 14, 1903, an issue was framed “ to determine how much, if anything, is due from the defendant to the plaintiff; the statement and confession on the note to stand as plaintiff’s statement, and the petition to open the judgment to stand as an affidavit of defense, and the defendant shall enter a plea of non assumpsit and such other plea as he may desire.” On February 24, the defendant pleaded “ non assumpsit, set-off and payment with leave,” etc. On April 24, 1904, a jury was called to try the issue.

Upon the trial the plaintiff testified that the defendant had given him the judgment note in suit as security for a loan of $2,000 cash made by him to defendant, about two weeks before the note was executed, and that defendant had filled out and signed the note in his presence and delivered it to him.

Plaintiff’s counsel then offered the note in evidence together with the statement and confession with which the same was entered,.and also the record in the case. The court overruled an objection to this offer and admitted the evidence. This is the ground of the first assignment of error.

Under our cases, it was error to admit the record of the judgment in evidence. The judgment was opened without conditions, and the record of the judgment was not admissible. The trial should have proceeded as if no judgment had been entered : Harris v. Harris, 154 Pa. 501. In that case, reference is made to Sossong v. Rosar, 112 Pa. 197, where, after considering former cases, Justice Green says (p. 202) : “These decisions and the reasoning upon which they are based establish that where a judgment entered upon a warrant of attorney, or even upon a default, is opened generally and without terms, the plaintiff is put to his proof of cause of action precisely as if no judgment had been entered. Consequently, any defense which would have been available to the defendant if an action had been brought, instead of a judgment entered upon the instrument in suit, may be set up on the trial; the burden of proof is upon the plaintiff, and he must make out his case, subject to the defendant’s right to defeat him upon any ground that would have sufficed for that purpose if no judgment bad been entered.” However, the record in the present case did not go to the jury, for the trial judge gave binding instructions in favor of the plaintiff, and the defendant was not therefore harmed by the error in admitting the record in evidence. The first assignment is therefore dismissed.

On cross-examination counsel for defendant asked the plaintiff about other business transactions he had had with defendant, especially in reference to the management of a hotel for him, and his accounting for receipts, and offered to show that he had collected a large amount of money for defendant which he had refused to account for. This evidence was excluded and its exclusion forms the ground of the second and seventh assignments.

The evidence as to set-off was clearly not admissible: Beaty v. Bardwell, 91 Pa. 438.

But in ruling on the offer contained in the second assignment, the court intimated that the issue would be limited to forgery. This was not consistent with the terms of the issue which had already been framed by the court, and which was to determine how much was due from the defendant to the plaintiff.

The third, fourth and fifth assignments relate to the limitation of defendant’s counsel in cross-examination of the plaintiff. As the plaintiff had testified as to the consideration given by him for the note, it was competent for defendant’s counsel to cross-examine as to any facts bearing upon this point. It was error to exclude the testimony. The judgment had been opened generally and the defendant could not be confined to any particular line of defense, such as forgery. He was entitled to establish any defense that was admissible under his pleas. Want of consideration was such a defense. The issue in this case did not involve inquiry into any running account between the parties, nor could any such defense be set up, as could have been made under a plea of set-off in an original action. But the defendant was entitled, if he could, to show want of consideration, or payment. If there was any indebtedness by plaintiff to defendant, which the parties had agreed to treat as applicable to the judgment, that might have been shown. But this would not go beyond what had been made applicable by agreement between the parties. It may be that the evidence upon the part of the defendant would not have been sufficient to take the case to the jury as against the prima facie evidence of the note, under seal, and the positive testimony of the plaintiff, uncontradicted by the defendant, that he gave full consideration for the note. But we cannot jDass upon this question in the present state of the record, as the ruling of the trial judge excluded the whole line of testimony on the part of the defendant, as to consideration. Opportunity should have been given to the defendant to show the facts, both on cross-examination, and in his defense, as to the consideration, and as to payment.

Tbe defendant did not deny tbe execution of tbe note, nor did he offer any testimony to support the allegation of forgery. But tbe issue was not narrowed to this question alone.

Tbe eighth assignment of error is sustained, tbe judgment is reversed and a venire facias de novo is awarded.


author: Mb. Justice Potteb,

text:
    Commonwealth ex rel. v. Potter County Water Company, Appellant.

      Corporation—Water companies—Quo warranto—Ouster—Impure water— Acts of June 14, 1836, P. L. 621, and April 29, 1874, sec. 34, P. L. 73.
    The remedy of quo warranto against a water company for supplying impure water, as provided by the Act of June 14, 1836, P. L. 621, is in no way affected or repealed by section 34 of the Act of April 29, 1874, P. L. 73, which provides a method of relief to an individual citizen who may make complaint of the impurity of water furnished.
    A judgment of ouster on a verdict for the commonwealth on quo warranto proceedings against a water company will be sustained where the evidence for the commonwealth, although contradicted, tends to show that the defendant’s line was connected with a mill pond into which the sewage of the town was discharged, and that during five years at periods of low water, and when fires occurred, water from the pond was pumped 'into the main service lines of the company, and that such water polluted the other water, and frequently rendered it injurious and unwholesome and unfit for drinking or cooking, and even for washing. In such a case it is immaterial that the company was under an agreement with the borough to maintain a connection with the mill pond.
    Argued May 1, 1905.
    Appeal, No. 139, Jan. T., 1904, by defendant, from judgment of C. P. Potter Go., Dee. T., 1901, No. 13, on verdict for plaintiff in case of Commonwealth ex rel. John P. Elkin, attorney general, v. Potter County Water Company.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Affirmed.
    Quo warranto against a water company. Before Bouton, P. J., specially presiding.
    The facts are stated in tbe opinion of tbe Supreme Court.
    Verdict and judgment for plaintiff upon which judgment of ouster was entered.

      Errors assigned were (1-3) exclusion of various offers o£ evidence to show an agreement between the defendant and the borough of Austin by which the defendant was bound to maintain a connection with the mill pond; (7) in refusing binding instructions for defendant; (8) in overruling the motion to quash on the ground that the remedy of quo warranto provided by the Act of June 14, 1836, P. L. 621, was superseded as far as water and gas companies were concerned by the Act of April 29, 1874, sec. 34, P. L. 73.

      Walter Lyon, of Lyon, McKee $ Mitchell, with him Siebert LiUibridge, for appellant.
    With proof of impurities of the water only at isolated times, and the great preponderance of testimony being in favor of the purity of the water, there certainly was not enough evidence to base a verdict for the plaintiff, and the case should have been taken from the jury, as requested in the point upon which the seventh specification is based.
    The question in this case should not have been merely whether this company at some time or times had not supplied pure water, but whether it had persistently failed to do so, and had so neglected its public duty as that it had violated its contract with the state to such an extent as would warrant the state in abrogating its contract.
    The court had no jurisdiction: Com. v. Towanda Water Works, 22 W. N. C. 429.
    . John 6r. Johnson, with him F. E. Baldwin, W. L Lewis and Arch. F. Jones, for appellee.
    The appellant cannot complain that in these quo warranto proceedings it was not allowed to show that it was under contract to do the injurious and criminal act it was charged with perpetrating : Potter County Water Co. v. Austin Borough, 206 Pa. 297.
    The court had jurisdiction: Com. v. Towanda WaterWorks, 1 Monaghan, 500; Birmingham, etc., Turnpike Road Co. v. Com., 1 Penny. 458; People v. Turnpike Co., 23 Wend. 222.
    It has been held in many states that the grant of special remedies does not take away the remedy by quo warranto : Capital City Water Company v. State, 105 Ala. 406 (18 So. Repr. 62); People v, Londoner, 13 Colo. 303 (22 Pac. Repr. 764); People v. Bird, 20 Ill. App. 568; Snowball v. People, 147 Ill. 260 (35 N. E. Repr. 538); State v. Shay, 101 Ind. 36; State v. St. Paul & S. C. Ry. Co., 35 Minn. 222 (28 N. W. Repr. 245); State v. Frazier, 28 Neb. 438 (44 N. W. Repr. 471); State v. Kearn, 17 R. I. 391 (22 Atl. Repr. 322, 1018).
    June 22, 1905 :
   Opinion by

Mb. Justice Potteb,

On September 16, 1901, the attorney general, on behalf of the commonwealth, filed in the court of common pleas of Potter county a suggestion for a writ of quo warranto, wherein it was set forth that the defendant company was incorporated under the title of the Potter County Water Company on December 3, 1897; that the purpose of the corporation as disclosed by the articles of incorporation is the supplying water to the public in the borough of Austin, Potter county, Pennsylvania, and to such persons, partnership and associations residing therein and adjacent thereto as may desire the same; ” and that the defendant company proceeded to lay pipes in the borough of Austin, and to procure and store water in furtherance of its corporate purpose. It is then averred that since the date of its incorporation, the defendant company “ has failed, neglected and refused to perform and carry out the purposes of its incorporation ” in that it does not supply the whole borough of Austin, or even that part of it where it has laid its pipes, “ with a sufficient supply of w^ter for drinking and domestic purposes,” or “for the extinguishment of fires,” and in that “the said defendant company has and maintains within the limits of said borough a steam pump connected with a floating dam or mill pond, and in times of low water and when fires occur in said borough, it is so arranged that water is pumped from the mill pond or floating dam into the main service lines of the company, thus polluting and rendering unfit for use the water so furnished to the citizens of the borough. That the said mill dam is so located that it receives the sewage from a large portion of the borough and that the water is impure, unwholesome, poisonous and not fit for use.” The suggestion is then made that the court award a writ of quo warranto commanding the defendant company to show cause why it should not be ousted and its charter declared null and void. The defendant company in its original answer denied specifically the material allegations of the suggestion of the attorney general, and averred that “ it has erected and maintained, and does now maintain, adequate reservoirs for the storing of water, and has laid and maintained private mains, pipe lines and connections to and into the borough of Austin, and it has been since its incorporation and the construction of its works, engaged in supplying a sufficient quantity of pure water to the public of said borough for all purposes within the terms of its charter.” Subsequently, in an amendment to the answer, the defendant company further averred “ that the connection between the steam pump and said mill pond is only maintained for the technical reason that in the grant of the franchise by the borough of Austin to John P. McIntyre, under which grant the Potter County Water Company entered said borough, it is enacted and provided: ‘ section 5 : The said John P. McIntyre, his associates, successors and assigns, shall not disconnect the pump which was purchased by said private parties and the tank of the Standard Wood Company, attached to said iron line, but said pump and tank shall be kept ready for use in case of necessity.’ ”

A formal replication was filed to the answer, and the case regularly proceeded to trial before a jury. At the trial, a motion was made on behalf of the defendant company,-, to quash the writ, for the reason that the court was without jurisdiction to try, in this form of action, the issue framed bj^ the pleadings, it being contended that the Act of April 29, 1874, P. L. 73, provides a remedy and repeals by implication so much of the act of June 14, 1836, as relates to water and gas companies. The court below overruled the motion to quash, and after a trial upon the merits, the jury returned a verdict in favor of the commonwealth. In accordance with this'verdict, the judgment of ouster was entered on April 22, 1903, against the defendant corporation, and a perpetual injunction was issued “ restraining said defendant, its officers, agents and servants from exercising any of the rights, liberties or franchises conferred by act of assembly or the charter above named.”

Tire assignments of error question the jurisdiction of the court, and complain of the exclusion of certain evidence, and also question the sufficiency of the evidence to support a judgment of ouster.

We have no doubt whatever as to the jurisdiction of the court to grant relief in this form. The second section of the Act of June 14, 1836, P. L. 621, authorizes the courts of common pleas to issue writs of quo warranto, inter alia, “ In case any corporation as aforesaid shall forfeit by misuser or non user, its corporate rights, privileges or franchises.”

It is contended on behalf of the defendant company that it was incorporated under the act of April 29, 1874, and that the third clause of section 34 of that act provides a method of relief to any citizen who may make complaint of the impurity of the water furnished, and that, consequently, this remedy excludes that hy quo warranto proceedings under the act of 1836. It is true that any private citizen may, under the act of 1874, file a bill in the court of common pleas of the proper county, and that the court, after hearing, is empowered to make such order as may seem just and equitable, and may compel the corporation to correct the evil complained of. But this remedy is given to the private citizen for the purpose of redressing a wrong done to him as an individual user of water. The remedy by quo warranto, on the other hand, is instituted by suggestion of the attorney general for the correction of a, wrong committed against the general public by the corporation, in violation or abuse of its charter rights. In the absence of any express words of exclusion in the act of 1874, we see no reason for holding that it takes away from the commonwealth by' implication the remedy for the correction of a public injury. We have no doubt as to the sufficiency of the evidence in this case to support the judgment of ouster. It appears that, prior to the incorporation of the defendant company, the borough of Austin was supplied with water for domestic use from springs by individuals and a corporation called the Lumber City Water Company. For the purpose of affording protection against fire, certain individuals constructed, and then transferred to the borough, a line of wrought iron pipe, which was connected with a mill pond in the lower part of the borough into which the sewage of the town was discharged. The defendant company secured the control of the Lumber City Water Company, and also of the iron line, from the borough, obligating itself in return therefor to furnish to the -borough, water for fire purposes for a specified number of hydrants. In time of drought and in' cases of fire, the defendant company pumped the water from the pond through the iron pipe into its main water pipes. The evidence on the part of the commonwealth was clear that from the year 1897 to and including 1902, the water furnished by the defendant company for domestic consumption to the public, was at frequent times injurious and unwholesome, and that it was of an oily consistency, reddish in color, disagreeable in odor, and was contaminated with sewage and contained the germs of disease; and was consequently unfit for drinking or cooking, or even for the purpose of washing. There was, of course, evidence on the part of the defendant company tending to show the wholesome and pure character of the water which it furnished. But the credibility of the witnesses and the weight to be given to the testimony in this respect, was for the jury, and they,'by their verdict, have sustained the claims of the commonwealth.

The appellant also complains of the exclusion as evidence, by the court below, of certain portions of the ordinance of the borough, which provided that the connection with the iron line and the pond should be maintained. It was argued that by reason of the contract contained in the ordinance, the water company was forbidden to disconnect the pumps attached to the iron line, and that it was not therefore responsible for the bad character of water which came from the” pond. But this was only to provide against contingencies, and it is apparent that, even if it was necessary to use water from the pond at certain times, as in case of fire, yet reason and common sense would require after such use, a thorough flushing out of the pipes, in order to prevent pollution of the water supplied for domestic purposes. Nothing within the limits of reason could justify a failure upon the part of the water company to furnish to the public water which was at least reasonably pure and comparatively wholesome.

In affirming the second point for charge presented on behalf of the defendant company, the court below instructed the jury that it was not sufficient to show a single failure to furnish a sufficient supply of wholesome water, nor even to prove several isolated acts of negligence, but that a continued and persistent neglect of duty must be shown, or the verdict must be for the defendant. The court also repeatedly said to the jury, in the course of tlie charge, that before the charter could be revoked, they must find a substantial violation of the duty owed by the corporation, and that occasional violation or instances of neglect would not be sufficient. Over and over again the test was impressed upon the jury in such language as this: “ It would not be an occasional violation, an occasional neglect of their duty which would authorize the revocation of their charter.” “ The failure of this defendant company to perform its corporate duties, to perform the duties imposed upon it by the law and its charter, must not be an occasional failure, but there must be a substantial failure, and there must be such failures as are continuous and persisted in.” And again, if “ the water was not polluted .... or that it was only upon isolated occasions that it was turned on, happening once or twice, or a few times, then for that you would not be justified in finding a wilful, negligent and substantial violation of the charter duties of this corporation.” And lastly, he said to the jury: “If you find the failure to comply with their corporate duties has not been a substantial, wilful and negligent failure; that the failure to supply water as to quantity or quality was only occasional and did not cover a long period of time, and was not continuous, it would be equally your duty to find a verdict in favor of the defendant company.” Yet, after this fair and careful charge, the jury sustained the contention of the commonwealth.

We see nothing in the manner in which the case was submitted to the jury of which the defendant company has any just reason to complain. The assignments of error are overruled and the judgment is affirmed.


text:
    Haskell’s Estate.

      Will—Widow—Election to take under will—Promissory note—Evidence.

    Testator, an illiterate man, made his will, and left it with his counsel, having first in the presence of the latter sealed it up in a large envelope and with it a smaller envelope also sealed, which he said would show what was to be done with it. After his death the envelope was opened containing the will and the small envelope. Upon the small envelope was written “Personal and private. If I die first to be delivered to Phoebe, if Phoebe dies first, to be delivered to me.” Phoebe was his wife. On the day after the funeral the will and sealed envelope were taken to the widow, the will was read to her, and the small envelope handed to her. It contained two papers, one a note under seal payable to the widow under her maiden name, one day after date (nearly nine years before his death) for over $3,000. This amount represented money of the widow’s that she had put in her husband’s hands at or before her marriage. The other paper was a memorandum in these words: “Pheobe, according to agreement you are to burn this note, as I am ded, if you except under my will,” signed by testator. The will left the income of the whole estate to the widow for life; when the inventory was taken' she was informed of the value; and she received and accepted the income without any claim on the note or for the debt which it represented during the eight months that she survived. After her death the note was presented by her administrator as a claim against her husband’s estate. Held, that the widow had accepted under the will with such knowledge of the note and memorandum as would estop her and her administrator from claiming on the note.
    Argued May 1, 1905.
    Appeal, No. 281, Jan. T., 1904, by Jennie M. Smith, from decree of O. C. McKean Co., Dec. T., 1903, No. 8, dismissing exceptions to auditor’s report in Estate of William Haskell, deceased.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter JJ.
    Reversed.
    Exceptions to report of George A. Berry, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in reversing the auditor.

      John Gr. Johnson, with him James George and Rufus B. Stone, for appellant.
    The order appealed from is a reversal of the auditor appointed to report distribution. He is overruled upon a question of fact. Neither misconduct on his part nor gross mistake nor fraud is disclosed. In such case, it has been held with uniformity that the report of the auditor should prevail : Platt-Barber Co. v. Groves, 193 Pa. 475; Dutton’s Estate, 181 Pa. 426; Huckestein v. Kaufman, 173 Pa. 199; Hess’s Estate, 150 Pa. 346; Scheppers’ Appeal, 125 Pa., 598; Gilbert’s Appeal, 78 Pa. 266; Pittsburg’s Appeal, 70 Pa. 142.
    A delivery. not in accordance with the intention of the decedent is of no effect: Critchfield v. Critchfield, 24 Pa. 100; Duraind’s Appeal, 116 Pa. 93; Scott v. Reed, 153 Pa. 14; Galbraith v. Zimmerman, 100 Pa. 374.

      F. B. Gallup and Thomas F. Richmond, with them V. B. Bouton and Sheridan Gorton, for appellee.
    The Supreme Court can and has in many cases reversed both the auditor and the court below where the evidence shows that their findings of fact or conclusions of law were against the weight of the evidence, or where an unjust result is reached: Miller’s Appeal, 102 Pa. 544; Fessenden’s Estate, 170 Pa. 631; Hindman’s Appeal, 85 Pa. 466; Bachman’s App., 38 Legal Intell. 393.
    William Haskell did not hold these moneys as an ordinary debtor, but as a trustee; and a trustee surely cannot dispose of the estate of his cestui que trust or appropriate it to his own use: Abrahims’s Estate, 19 W. N. C. 450; Dougherty v. Snyder, 15 S. & R. 84.
    June 22, 1905:
   Opinion by

Mb. Chief Justice Mitchell,

Haskell made his will, and left it with his counsel, having first in the presence of the latter sealed it up in a large envelope, and with it a smaller envelope also sealed, which he said would show what was to be done with it.

After’ his death the envelope was opened containing the will and the small envelope. Upon the small envolope was written “ Personal and private. If I die first to be delivered to Phoebe, if Phoebe dies first to be delivered to me. ” Phoebe was his wife. On the day after the funeral the will and sealed envelope were taken to Phoebe Haskell, the will was read to her by one of the executors, and the small envelope handed to her. It contained two papers, one a note under seal, payable to Phoebe McDowell one day after date ( nearly nine years before his death ), for $3,120. It was admitted that Phoebe McDowell was the widow and that the amount of the note, $3,120, represented money of hers that she had put in his hands at or before her marriage. The other paper was a memorandum in these words : “ Phoebe, according to agreement you are to burn this note, as I am ded, if you except under my will. Wm. Haskell.” The will left the income of the whole estate to the widow for life; when the inventory was taken she was informed of the value; and she received and accepted the income, without any claim on the note or for the debt which it represented, during the eight months that she survived. After her death the note was presented by her administrator as a claim against her husband’s estate.

So far the facts are undisputed, and both the auditor and the judge agreed that the widow had accepted under the will. They differed, however, as to whether she had accepted with such knowledge of the note and memorandum as would estop her, and, of course, her administrator from claiming on the note. That is the only question in the case.

The auditor on the first hearing took the evidence of the husband of the devisee of the remainder of the estate after the widow’s death. He later concluded, however, as did the court, that this witness was not competent, and on the second hearing took further evidence and reported that the widow had accepted with knowledge of the condition. The court reversed this finding and sustained the claim on the view that the burden of proving the fact of knowledge, was on the appellant, legatee, and that the testimony of the only witness who testified affirmatively to the widow’s having seen and read the paper, failed to identify it with certainty, and was in other respects unsatisfactory. In this we think he fell into the error of underrating the strong corroborative effect of the undisputed circumstances. The note and the memorandum were in the handwriting of the testator, as was also the indorsement on the small envelope, “ Personal and private. If I die first to be delivered to Phoebe,” etc. The testator in the presence of his counsel put these papers, so inclosed, in the envelope, with his will, and after his death, the will was read to her and the small envelope handed to her. To suppose that with such an indorsement she did not open the envelope, or opening it did not read the memorandum, is beyond the bounds of credibility. It is not clear that the burden of proof was on the appellant. The testator had the note in possession, there is no evidence that he ever delivered it or that his wife ever had it in her possession during his lifetime, and when it was delivered after his death in the manner shown, it was delivered with a condition and the assertion of an agreement to both of which acceptance under his will was an assent. But even conceding that the burden of proof was on the appellant it was fully met.

The court also found some difficulty on the question whether even if the widow did read the memorandum, she knew that if she accepted under the will she released her claim, and suggested that the words “ if you except under my will ” could be read “except to my will” just as readily as “if you accept,” etc. But we have no trouble on this point. Considering the illiteracy of the testator as shown in his spelling, and the common confusion among his class of the words accept and except, the proper reading is not at all doubtful. The whole intent and sense of the memorandum are against the suggested change.

Lastly, it is argued that the widow had not mental capacity to understand the meaning of the memorandum. It is sufficient to say that this is wholly inconsistent with the intelligent acceptance of the provisions of the will which both the auditor and the judge concurred in finding as a fact.

On careful review of' the whole case we are of opinion that the Aveight of the evidence is clearly Avith the auditor’s finding. Decree reversed and distribution directed to be made in accordance with the report of the auditor. All costs to be paid by appellee.


text:
    Gray, Appellant, v. Citizens’ Gas Company of Port Allegheny.

      Equity—Specific performance—Contract—Decree—Practice, C. P.

    Where on a bill in equity to enforce specific performance of a contract, the court has found that the complainant is entitled to the relief sought, it cannot refuse the decree because the defendant between the filing of the bill and the hearing had taken measures to carry out its contract. In such a case the decree will be a moral support against a change of heart of the defendant, and in case of a breach will enable the complainant to go at once into court, and the burden would then be on the defendant to show such change of circumstances or rights as would excuse it.
    Argued May 1, 1905.
    Appeal, No. 310, Jan. T., 1904, by plaintiff, from decree of C. P. McKean Co., June T., 1902, No. 2, dismissing bill in equity in case of John G. Gray and Carl B,. Bard, trading as Gray Chemical Company, to use of The Gray Chemical Company v. The Citizens’ Gas Company of Port Allegheny.
    Before Mitchell, C. J., Dean, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Bill in equity for specific performance. Before Thomas, P. J., specially presiding.
    From the record it appeared that the defendant company contracted in 1896 to furnish John G. Gray sufficient natural gas to operate a chemical factory then owned by Gray and subsequently conveyed to the Gray Chemical Company. The bill alleged the failure of the defendant to supply the gas for which the contract was made. The prayer of the bill was for specific performance. The court below found the facts in favor of the complainant, but in addition found the following fact:
    32. By reason of the permanent improvements made by the defendant company, such as the drilling of additional wells in “ lasting territory ” and the increase of the capacity of their lines, the said defendant is now and since March 9, 1903, has been furnishing an adequate supply of gas to plaintiff, and it is as reasonably certain as the nature of the business can so make it that they will be able and willing to continue such supply indefinitely.
    The court refused to enter a decree. Upon exceptions to the adjudication Thomas, P. J., filed an opinion which was in part as follows :
    It is maintained by the plaintiff that in any event the bill should be held with leave to the plaintiff to hereafter apply for an order of specific performance, in case an occasion therefor should arise. We have given this phase of the case very careful consideration but, in view of the nature of the case and the facts involved we are persuaded that, while we have power so to do, it would not be a proper exercise of that power. The acts on the part of the defendant that have defeated plaintiff’s right of recovery were acts of permanent improvements on their property which resulted in their ability to comply with their contract with the plaintiff.
    We do not understand how an occasion might arise such as would entitle the plaintiffs to a decree without first bringing before the court allegations not found in their present bill for the support of which additional testimony, would be required. In other words, new averments and proofs amounting to a new cause of cptnplaint would have to be alleged and shown, and there is no reason why such may not be accomplished by a new bill as speedily and effectively as under the present one.
    Were the facts such that the plaintiff’s right of recovery had been defeated by such conduct of the defendants as might be performed or withheld, either temporarily or permanently, at the will of the defendant then there might be ample reason for holding this bill as suggested by the plaintiff. But in view of the facts found and the nature and character of the business we are persuaded that this bill should be disposed of, though the plaintiff might possibly hereafter acquire a right of specific performance of his contract for reasons others than averred in this bill.

      John G. Johnson, with him II. N. Rose, Sheridan Gorton and Thomas F: Richmond, for appellant.
    If the court below, under the evidence, believed that it was his duty to dismiss the bill, he should have at least done so “ without prejudice,” thereby preserving the plaintiff’s right to bring a future action for a future breach or to prosecute an ancillary common-law action for damages for breaches already committed, as was done in County of Mobile v. Kimball, 102 U. S. 691.
    The contention that a defendant in a bill for equitable relief can, after a trial on the merits, avoid a decree by temporary compliance with the plaintiff’s demand, is so unusual that it is difficult to find precedents in which the exact point has been raised. .One case, however, namely, Western Electric Co. v. Capital Telephone & Telegraph Co., 86 Fed. Repr. 769, is very close in its facts.

      George A. Berry, with him F. B. Gallup and FI B. Bouton, for appellee.
    June 22, 1905:
   Opinion by

Mb. Chief Justice Mitchell,

The learned judge below found all the facts in favor of the complainant, saying “ we see- therefore nothing in the way of preventing a decree for the specific performance of this contract by the defendant at the time of the filing of this bill.” But he was of opinion that in a proceeding of this kind the decree should speak as of the facts at the time of the hearing, and as to these he said: “ The facts-show that since the service of the bill, the defendants have been active in an effort to increase the supply of gas by materially increasing the number of wells of supply and the size of the conduits, and by this effort, which has cost a considerable sum, they have remedied the cause of complaint, and by reason of the character of such improvements, that correction may reasonably be expected to remain permanent.”

As the defendant was in fault when the bill was filed, the costs were imposed upon it, but the bill was dismissed on the ground that plaintiffs had secured the object for which it was filed, and the defendant was not now disputing their right. The judge further said : “We do not understand how an occasion might arise such as would entitle the plaintiffs to a decree without first bringing before the court allegations not found in their present bill for the support of which additional testimony would be required. In other words, new averments and proofs amounting to a new cause of complaint would have to be alleged and shown, and there is no reason why such may not be accomplished by a new bill as spe.edily and effectively as under the present one.”

In this there was the serious error of shifting the burden of proof to the wrong party. On a new bill the plaintiffs would be the actors, and at least to some extent would have to set out their case de novo. But with a decree in their favor such as they had shown themselves entitled to at the filing of the bill, all they would have to do at any time would be to come into court and show a breach, and the burden would then be on the defendant to show such change of circumstances or rights as would excuse it.

But independent of any such considerations of convenience of proof, the complainants had established their rights and were entitled to a decree of the court to enforce them. Courts do not of course desire to do vain or unnecessary things, and if this had been a completed contract, under which plaintiffs had already attained all they were or ever would be entitled to, the court might well say that its aid was no longer required. Blit this was a continuing contract, involving service in the future as well as in the past. Performance had been refused, and might be refused again. Defendant is now keeping its contract and sets up its willingness to continue to do so. If it so intends, then the decree carries no hardship to it, but will be a moral support against a change of heart which might occur if the impending hand of the chancellor were withdrawn. Plaintiffs were not bound to rely on a possibly changeable willingness. They had established their case and a decree of the court to enforce continued performance was of right.

Decree reversed and decree for specific performance directed to be made in accordance with the prayer of the bill. Costs to be paid by the appellee.


author: Mb. Justice Elkin,

text:
    Strang v. MacArthur, Appellant.

      Promissory notes—Non-megotiable paper—Estoppel—Banks and hanking— Discount.

    Where a non-negotiable note or order is presented to a bank for discount, and the bank on making inquiry of the maker receives such an answer as induces it to discount the paper, the maker cannot subsequently deny liability on the note, and it is immaterial that the bank gave no notice of the discount.
    Argued April 19, 1905.
    Appeal, No. 106, Jan. T., 1905, by defendant, from judgment of C. P. Clearfield Co., May T., 190'4, No. 326, on verdict for plaintiff in case of E. P. Strang, W. T. Forsythe, J. L., Dailey and George W. Green, trading as Strang & Forsythe, to use of Camden National Bank v. MacArthur Brothers Company.
    Before Dean, Brown, Méstrezat, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit oil a non-negotiable order or note. Before Smith, P. J.
    The facts are Stated in the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for. plaintiff. Defendant appealed.

      Error assigned among others Was in giving binding instructions for plaintiff.

      Roland B. Swoope and Murray O’Laughlin, for appellant.
    —The paper sued upon was not a legal obligation of the defendant corporation: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Worthington v. Schuylkill Electric Ry. Co., 195 Pa. 211; Hays v. Lynn, 7 Watts, 524; Moore v. Patterson, 28 Pa. 505; Rowland v. Slate, 58 Pa. 196.
    Even if the paper in suit is legally binding upon the defendant corporation, yet it had the right to introduce evidence of a set-off against or payment to the legal plaintiffs to defeat a recovery: Louden v. Tiffany, 5 W. & S. 367; Bury v. Hartman, 4 S. & R. 175; Miller v. Kreiter, 76 Pa. 78; Gourdon v. Ins. Co., 3 Yeates, 327; 1 Daniel on Negotiable Instruments, sec. 743 (5th ed.); Frants v. Brown, 18 S. & R. 287; Wade on Notice, p. 38.

      Gordon Boulton, with them II. Merian Allen, for appellee.
    —The evidence showing that at the time the note in suit was given by defendant, its officers acted with full knowledge of all the facts, made it payable out of the December estimate of work when they did not, and could not, with certainty, know what that estimate would amount to, and relied upon the estimate of its superintendent, Winston, it assumed the risk of its sufficiency. Its voluntary act in giving the note is binding upon it, and precluded the defense sought to be interposed: De La Cuesta v. Ins. Co., 136 Pa. 62; Schoenfeld v. Bradford, 16 Pa. Superior Ct. 165; White v. Heylman, 34 Pa. 142; Clement v. Reppard, 15 Pa. 111; Easton Power Co. v. Ry. Supply Co., 22 Pa. Superior Ct. 538; Newell, Booth & Co. v. Sheldrake, 23 Pa. Superior Ct. 528; Graham v. Hull, 8 Pa. C. C. Rep. 202.
    When inquiry is made of the maker of a nonnegotiable note if any defense exists to it, he is bound, if he answers, to answer fully. If he answers evasively, states matters that are no defense, and fails to state that he has a defense to it, he waives the right to take advantage of any defenses he may have: Heist v. Hart, 73 Pa. 286.
    Silence is equivalent to acquiescence, and becomes an act when there is a duty to speak : Koch’s Estate, 148 Pa. 159; Thompson v. McClelland, 29 Pa. 475; Wahl v. Pittsburg & Western Ry. Co., 158 Pa. 257; Griffiths v. Sears, 112 Pa. 523; Howie v. Lewis, 14 Pa. Superior Ct. 232; McMullen v. Wenner, 16 S. & R. 18,

      June 22, 1905 :
   Opinion by

Mb. Justice Elkin,

This is an action of assumpsit to recover on a nonnegotiable note or order executed in the name of the defendant company by its superintendent, in favor of Strang and Forsythe, who assigned the same to the Camden National Bank, the use plaintiff and appellee. The appellant had a contract for the construction of a railroad from Curwensville to Bower, in the county of Clearfield. Strang and Forsythe were subcontractors for the construction of a portion of the work. T. S. Winston was the superintendent in charge of the construction work for the defendant company. On December 21, 1903, the following note or order was executed in favor of the subcontractors :

“ Curwensville, Pa., December 20, 1903.
“ On January 30, 1904 we will pay Strang and Forsythe the sum of Four thousand dollars on account of December estimate for work done on Curwensville and Bower R. R. of N. Y. C. & H. R. R. R.
(Signed) “ MacArthur Bros. Co.
“byT. S. Winston.”

Strang and-Forsythe, desiring to secure funds with which to prosecute the work, presented the above note or order to the Camden National Bank for discount before maturity. In the history of the case which appears in the paper-book of the appellant, the following statement is made in reference to the discounting of this paper: “ Shortly after the date of said paper, E. P. Strang took it to the Camden National Bank, the use plaintiff in this case, for the purpose of negotiating it. The cashier of said bank refused to discount said paper because it was not negotiable, and told Strang he would have to get some evidence from MacArthur Brothers Company that they were the makers of the note, or at least that Winston had authority to sign the note, and that they had no defense to it.” Strang accordingly went to New York, and discussed the matter with John R. MacArthur, president of the company. There is some dispute about what Strang said to MacArthur, and what MacArthur replied to him, but in our view of the case it is not material what conversation took place between these parties for the reason that no matter what was said by them at that time, it resulted in MacArthur writing the following letter to the Camden National Bank:

“New York, 12-28-08.
“ Gentlemen :
“Mr. Strang has showed us letter of December 21st signed by Mr. T.-S. Winston. Mr. Winston is superintendent for us upon our work for the New York Central and Hudson River Railroad Company, near Curwensville, Pennsylvania. Messrs. Strang and Forsythe have a sub-contract for a portion of that work and are now at work upon their contract. We do not know at this office what amount of work they have done in December, but Mr. Winston’s statement that we will pay them $4,000 on account of their December estimate is a pretty good assurance to us that they have done or will have done by the end of December, sufficient work to have earned that amount.
“Yours very truly,
“ MacArthur Bros. Co.,
“ by John R. MacArthur.
“ The Camden National Bank,
“ Camden, N. J.”

Upon the receipt of the above letter from the defendant company, the bank discounted the paper. On the trial of the case in the court below, the jury were instructed to return a verdict in favor of the use plaintiff for the face of the paper with accrued interest. The appellant contends that the bank failed to give notice that it had discounted the paper and that subsequent to the time of its execution Strang and Forsythe became financially involved, failed to perform their work, and that they did not owe them the amount of money called for in the note or order because they had assumed other liabilities of said subcontractors which might exhaust all the funds owing by the defendant company to them. Other assignments of error raise questions relating to the admission of declarations made by Strang and MacArthur at the time the letter of December 28, 1903, was written to appellee.

The able argument of the learned counsel for appellant has failed to convince us that these positions are sound. The rights and liabilities of the parties depend not on the representations made by Strang to MacArthur, or on collateral issues growing out of their relations as contractor and subcontractors, but must be determined by a proper construction of the note or order and the letter written by the defendant company to the appellee. It is clear that this letter was given in answer to the request of the Camden National Bank that the MacArthur Brothers Company should give something - to show that Winston had the authority to sign the order, that the amount of money stated therein was due Strang and Forsythe, and that it would be paid at the time indicated. A fair construction of the letter shows that the firm recognized the authority of Winston to execute the order, and that no defense would be interposed to its payment Avhen due. It is true that the letter itself does not specifically say that the defendant company had no defense to the paper, but taken in connection with the fact that it was addressed to the Camden National Bank where the paper was to be discounted, there can be no question that it was intended as an inducement to the bank to discount the paper. It is apparent that the bank Avould not have discounted it had not the letter frdm MacArthur Brothers Company been received. Under the circumstances the contention of the appellant that the bank should have notified the defendant company that it had discounted the paper is without merit. There is nothing- in the letter from the defendant compaziy to-the bank that indicates that notice of the discounting of the paper was either demanded or expected, and it is a well known fact that banking institutions in the ordinary course of business do not give notice to the makers of notes when they are discounted.

We have carefully examined the charge and opinion of the learned court below, which very clearly and fully discusses the questions involved in this controversy, and properly disposes of the case on its merits.

Assignments of error overruled and judgment affirmed.