text:
    Rottmund v. Pennsylvania Railroad Company, Appellant.

      Negligence — Railroads—Grade crossing — “Stop, look and listen”— Evidence as to signals.

    1. In a grade crossing accident case where the plaintiff’s testimony-shows that the train was running at a very high rate of speed and three witnesses for the plaintiff testify positively that the bell was not rung and the whistle did not blow, not that they did not hear the sound of either, the question of the railroad company’s negligence is for the jury, although its witnesses testify that the whistle blew and the bell was rung.
    2. Where the plaintiff in such a case testifies that he stopped, looked and listened at a point about seventy-five or 100 feet from the track where the view was somewhat obstructed, but saw and heard no train, and- that he again stopped, looked and listened when his horse was about four feet from the track, and there could see the track for about 600 or 700 feet from the crossing, and not seeing nor hearing a train started across with the result that his wagon was struck in the rear by a train, the question of the plaintiff’s contributory negligence is for the jury.

      Practice, C. P. — Trial—Verdict—Recording verdict — Polling jury.

    3. The only valid verdict is that which the jury announce orally in court, and which alone is received and recorded as the jury’s finding.-
    4. Where a jury orally announce that they find a verdict in favor of the plaintiff and against the defendant for a sum stated, and this is duly recorded, the action of the court in reassembling the jury so as to let them make a written memorandum of their verdict which they had submitted, conform to the oral verdict previously recorded, is unnecessary and unavailing.

      5. A motion to poll the jury cannot be made after the verdict has been openly announced to the court, affirmed by the jury collectively and recorded on the minutes.
    6. The reassembling of the jury by the court in order to make a written verdict conform to the oral verdict previously rendered and recorded, affords no occasion for a motion to poll the jury.
    Argued May 17, 1909.
    Appeal, No. 66, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Nov. T., 1906, No. 74, on verdict for plaintiff in case of John Rottmund v. The Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Landis, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $7,000, upon which judgment was entered for $5,000, all above that amount having been remitted. Defendant appealed.

      Errors assigned among others were (3) in refusing binding instructions for defendant; (4) in permitting the jury to reassemble and reform its verdict; and (5) in denying defendant’s request for a poll of the jury.

      W. U. Hensel, for appellant.
    The overwhelming weight of the testimony was to the effect that the engineer of the approaching train gave due notice at the proper place by whistling: Keiser v. R. R. Co., 212 Pa. 409.
    The accident was due to the palpable negligence of the plaintiff: Carroll v. R. R. Co., 12 W. N. C. 348; Yevsack v. R. R. Co., 221 Pa. 493; Walsh v. R. R. Co., 222 Pa. 162; Gangawer v. R. R. Co., 168 Pa. 265; Myers v. R. R. Co., 150 Pa. 386; Blotz v. R. R. Co., 212 Pa. 154; Kinter v. R. R. Co., 204 Pa. 497; Kraus v. R. R. Co., 139 Pa. 272; Moose Brewing Co. v. R. R. Co., 36 Pa. Superior Ct. 549.
    The defendant was entitled to have a poll of the jury: Moose Brewing Co. v. R. R. Co., 36 Pa. Superior Ct. 549; White v. School Dist., 2 Pa. C. C. Rep. 1.

      June 22, 1909:

      B. F. Davis, for appellee,
    cited as to the question of negligence: Boggs v. Ry. Co., 216 Pa. 314; Howard v. R. R. Co., 219 Pa. 358; Calhoun v. R. R. Co., 223 Pa. 298; Guthrie v. R. R. Co., 222 Pa. 366; Sefcik v. R. R. Co., 223 Pa. 348.
    Cited as to the rendering of the verdict: Com. v. Breyessee, 160 Pa. 451.
   Opinion by

Mr. Justice Mestrezat,

This action was brought to recover damages for injuries to the plaintiff received at a grade crossing in the city of Lancaster. After a careful examination of the evidence, we are satisfied that it was sufficient to justify the learned judge in submitting the negligence of the defendant and the contributory negligence of the plaintiff to the jury. The plaintiff’s testimony tended to show that the train which collided with the wagon was running at the rate of thirty-five or forty miles an hour, and that no notice of its approach to the crossing was given by sounding the whistle or ringing the bell. The learned counsel of the appellant is in error in saying that the plaintiff’s testimony as to the notice was entirely negative. The plaintiff himself testified that the whistle was not sounded and the bell was not rung until the train was almost upon him, and in this he was supported by at least three disinterested witnesses who testified that no such notice was given of the train’s approach to the crossing. This testimony was positive, not negative. The witnesses said that the bell was not rung and the whistle did not blow; not that they did not hear the sound of either. This was sufficient to send the case to the jury on the question of the defendant’s negligence, notwithstanding the testimony of the defendant’s witnesses who testified that the whistle blew and the bell was rung.

The learned trial judge was right in refusing to declare the plaintiff guilty of negligence as a matter of law. The plaintiff testified that as he approached the crossing he stopped, looked and listened at a point about seventy-five or one hundred feet north of the track. His view was obstructed by reason of a corn field on his right and possibly some cars on the tracks. He heard or saw no train coming in either direction. He proceeded to a point where his horse was about four feet from the track when he again stopped, looked and listened. He testifies that at this point he could see west up “around the cork works somewhere.” The west end of the cork works property was about 600 or 700 feet from the crossing. The plaintiff says he neither saw nor heard a train approaching. He then proceeded to cross the tracks and had almost cleared both tracks when a train running very rapidly from the west struck the rear end of the wagon and the plaintiff was injured. It needs but the statement of these facts to show that the question of the plaintiff’s contributory negligence was for the jury. The appellant’s argument is based upon the false assumption that the plaintiff could see 1,700 or 1,800 feet west along the railroad track when he stopped the second time. It is true there was evidence from which the jury might have found that as a fact, but the plaintiff’s testimony warranted the jury in finding that he could see in the direction from which the train approached only 600 or 700 feet. The train which collided with the plaintiff’s wagon approached from the west, on the south track. The horse and a part of the wagon were clear of this track when the collision occurred. This fact supports the testimony of the plaintiff that he could see but a few hundred yards west of the crossing at the time he stopped immediately before crossing the tracks. The facts of this case take it out of the rule announced in Carroll v. Pennsylvania Railroad Company, 12 W. N. C. 348, that “it is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.” We have no disposition to abrogate or pare down this rule. Its enforcement protects the traveler on the highway as well as the passenger on the train. The traveler must understand that if he walk or ride immediately in front of an approaching train he is responsible for the accident which follows. ■ Immediate collision with a train when a traveler steps upon a railroad track at a crossing must be regarded as conclusive evidence that the traveler failed to perform his duty to stop, look and listen before he attempted to make the crossing. But as we have said in numerous decisions this doctrine is applicable only in clear cases, and where the facts which disclose the traveler’s negligence are undisputed. In the case at bar, the plaintiff’s horse was not struck when the animal stepped upon the track. On the contrary, the horse and the greater part of the wagon had passed over the south track when the rear end of the wagon was struck by the approaching train. The plaintiff’s testimony, therefore, that he stopped, looked and listened, and neither saw nor heard an approaching train is not contradicted by the manner nor the time of the collision. On the contrary, as we have above intimated, his testimony is corroborated by the fact that the collision occurred with the rear end of the wagon. If the train was running at the rate of thirty-five or forty miles an hour it would take it but a few seconds to reach the crossing from a distance beyond the cork works, 600 or 700 feet away, which was the distance the plaintiff could see. The testimony, therefore, on the question of the plaintiff’s negligence in approaching the crossing was for the jury.

The appellant further alleges that it was error for the court to permit the reassembling of the jury to “alter and reform its verdict after it had been rendered and recorded and after the jurymen had separated;” and in denying the defendant’s request for a poll of the jury after it had reassembled. An examination of the record in the case will show that no reversible error was committed by the court under the well-established practice in this state.

In 1 Troubat & Haly’s Practice, sec. 716, it is said: “When the jury have agreed, they return to the bar, and, by their foreman, publicly give their verdict, which is recorded by the clerk in his minutes, who then reads the entry to the jury, in order that, if he has made a mistake in taking down the verdict, it may immediately be corrected. There is no verdict of any force except a public verdict, given openly in court.” This is the practice uniformly followed throughout the state so far as we are advised. All the authorities agree that the only verdict is that which the jury announce orally in court and which alone is received and recorded as the jury’s finding: Mitchell, J., in Kramer v. Kister, 187 Pa. 227.

In the case at bar, the jury returned to the court at 2 p. m. and announced that they found a verdict “in favor of the plaintiff and against the defendant for the sum of $7,000.” At 3 p. m. the court reassembled the jury and the following occurred: “The Court: In the case of Rottmund v. Pennsylvania Railroad Company, the clerk took the verdict ‘in favor of the plaintiff and against the defendant for the sum of $7,000.’ The jury are all present, and were all then. I see now that, in their written verdict, they have, ‘find in favor of John Rottmund, plaintiff, for $7,000, and-against’ — and omit the defendant. I have called them together for the purpose of fixing that, and I give the gentleman who made this out the verdict. Mr. Hensel (counsel for defendant), on behalf of the defendant, objects, in view of the fact that the jury were discharged from a consideration of this case at two o’clock, and have since been separated from any further rendition of the verdict or amendment of any verdict which they may have handed in to the court prior to their discharge in this case and to their separation . The Court: I think they should make the written verdict conform to the verdict that they actually rendered, and I hand it to them for that purpose. Mr. Hensel excepts to the court taking any further verdict from the jury. Mr. Hensel also asks that, if any amendment is to be made to the verdict, the jury shall be polled. The Court: The court overrules the motion to poll, and gives the gentleman the benefit of an exception.”

It thus appears that the jury returned to the court room, announced their verdict orally in the proper form and that it was accepted by the court and recorded. The verdict as returned and accepted by the court was not irregular, imperfect, or irresponsive to the issue tried. As stated by the learned judge, as will be observed, the jury announced to the court a verdict “in favor of the plaintiff and against the defendant for the sum of $7,000.” The verdict therefore was proper in form and in substance. The court did not reassemble the jury to change the verdict, but as the judge stated he desired the jury to “-make the written verdict conform to the verdict that they did actually render.” There was no occasion whatever for reassembling the jury. It was wholly immaterial that, the verdict rendered was not in accord with the written formula sent out with the jury and returned by them. The verdict announced orally in court, accepted by it, and entered on the minutes, and not that stated in the written formula, was the verdict of the jury. This is distinctly ruled in Dornick v. Reichenback, 10 S. & R. 84, and has uniformly been held in subsequent cases. Mr. Justice Williams, speaking for the court in Commonwealth v. Breyessee, 160 Pa. 451, says (p. 457): “It is a sufficient answer to this motion (to arrest the judgment) to refer to the well settled rule that the verdict as recorded is the verdict of the jury and that the form prepared in the jury room though handed to the clerk is no part of the record and has no significance whatever. ... It was wholly unnecessary to recall the jury. It was done out of abundant caution, but it did neither good nor harm. The verdict had been entered on the record in proper form, against the defendant on trial and the pencil memorandum was without the slightest legal significance.” So in this case, the verdict was delivered in open court, was in proper form, was received by the court and entered upon its minutes. What the learned judge calls “their written verdict” was not a verdict, and cannot be considered as such in this case. His own statement in the colloquy between him and counsel shows that a proper verdict was rendered, ore tenus, one hour before he reassembled the jury. This verdict was rendered according to the uniform and established practice, was in proper form and, in the language of Mr. Justice Williams, “it did neither good nor harm” to reassemble the jury to “make the written verdict conform to the verdict that they did actually render.”

The question of the right of the appellant to have the jury polled need not be considered or decided in this case. The verdict was that which was returned, accepted by the court and entered upon its minutes at 2 o’clock that afternoon. The subsequent attempt by the court to make the “written verdict” conform to that verdict was abortive, and does not affect the verdict as returned and entered upon the minutes of the court. When the jury, after having been discharged from further consideration of the case, was reassembled for the purpose of making “the written verdict conform to the verdict that they did actually render” an hour previous, it was too late for the defendant to move for a poll of the jury. The motion cannot be made after the verdict has been announced in court, affirmed by the jury collectively, and recorded on the minutes: Commonwealth v. Schmous, 162 Pa. 326; Scott v. Scott, 110 Pa. 387; Malone v. State, 49 Ga. 210; 22 Ency. of Pl. & Pr. 935.

The assignments are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Graybill, Appellant, v. Ruhl.

      Vendor and vendee — Articles of sale — Clear of incumbrances — Borough ordinance to widen street.

    An agreement to sell real estate “clear of all incumbrances,” is violated where at the time of the execution of the agreement, and also at the time stipulated for the settlement, there is an existing borough ordinance providing for the widening of a street on the town plan, on which street the real estate abutted; and it is immaterial in such a case that the ordinance at the time was invalid, and that it was subsequently set aside at the instance of the vendor.
    Argued May 18, 1909.
    Appeal, No. 68, Jan. T., 1909, by plaintiff, from judgment of C. P. Lancaster Co., May T., 1908, No. 29, for defendant non obstante veredicto in case of Jacob G. Graybill v. Hiram F. Ruhl.
    Before Brown, Mestrezat. Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the purchase price of land. Before Landis, P. J.
    At the trial the jury returned on the instruction of the court a verdict for plaintiff for $3,458.87. Subsequently the court entered judgment for defendant non obstante veredicto.

      Error assigned was the judgment of the court.

      June 22, 1909:

      B. F. Davis, for appellant.

      John E. Malone and A. E. Burkholder, for appellee, were not heard.
   Per Curiam,

The written agreement of the appellant, executed December 10, 1907, was to convey to the appellee, on or before April 1, 1908, “in fee simple, clear of all encumbrances,” a lot of ground situated in the borough of Lititz. By an ordinance of that borough, approved October 2, 1907, North .Locust street on the town plan was widened by adding ten feet to its east side. This required the taking of a strip of land of that width and 200 feet long from the west side of the lot which was sold to the appellee, and, when a deed was tendered him on April 1, 1908, he refused to accept it because, in view of the ordinance, the property was not clear of all incumbrances. In this he was justified. The ordained street, though unopened, was an incumbrance upon the lot, relieving the appellee from his agreement to purchase: Evans v. Taylor, 177 Pa. 286. Though the ordinance may not have been a valid one, the appellee was not required to assume either the risk or the burden of having it set aside. When the deed was tendered to him and at the time this suit was brought it existed as an apparently valid borough enactment. That, subsequently, five months afterwards, it was set aside, at the instance of the appellant, in no manner affected the right of the appellee under the agreement, which was to get a clear title on April 1, 1908, and, before tendering such a title, the appellant had no cause of action. The assignments of error are wholly void of merit and the judgment is affirmed.


author: Me. Justice Mesteezat,

text:
    Hollinger v. York Railways Company, Appellant.

      Negligence — Damages—Stating to jury the amount claimed.

    1. In an action to recover damages for personal injuries it is reversible error for the court to state to the jury the amount which the plaintiff claims in his pleadings.

      Practice, C. P. — Verdict—Excessive verdict — Act of May 20, 1891, P. L. 101.
    2. The primary duty of correcting an excessive verdict rests with the trial court. The appellate court will not ordinarily exercise the authority conferred upon it by the Act of May 20, 1891, P. L. 101, to reverse a judgment on the ground that the verdict was unreasonably excessive. The trial court has the authority and is in possession of the facts which will warrant it in correcting such a verdict. While it should not interfere with the functions of the jury and undertake to determine facts which is exclusively the province of the jury, yet when it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the court should set aside or reduce the verdict. This is a duty as imperative as any other which rests upon a trial court, and there should be no hesitancy in performing it.

      Negligence — Damages—Release of damages — Minor—Evidence—Credibility of witness.

    3. A release of damages for personal injuries for a small consideration signed by a minor shortly after the injuries were sustained is invalid as an act of a minor, and is not admissible in evidence to affect the credibility of the minor as a witness in her own case.
    Argued May 18, 1909.
    Appeal, No. 115, Jan. T., 1909, by defendant, from judgment of C. P. York Co., April T., 1908, No. 21, on verdict for plaintiffs in case of Nora M. Hollinger, by her guardian and next friend, Frederick F. Snyder, and Frederick F. Snyder in his right as guardian of Nora M. Hollinger v. York Railways Company.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries sustained by the plaintiff, a girl aged eighteen years and six months. Before Bittenger, P. J.

      At the trial defendant made the following offer:
    Ex-Judge Stewart: If the court please, I desire now- to make an offer of the paper which I offered yesterday sometime, and the court ruled out. I did not object to making it in open court, and in the hearing of the jury. But after what has taken place, and on the other side, I would object to its being made in open court, and in the presence of the jury. Consequently I want to dictate the offer in the hearing only of your honor and counsel on the other side, so that objection may be made, and the offer ruled upon.
    The Court: So as not to have it given in the hearing of the jury. The court stenographer can come up here, too.
    Mr. Glessner: We do not object. It can be made in open court.
    Ex-Judge Stewart: Then we will offer it in the regular way.
    The defendant proposes to show by the witness on the stand, now under cross-examination, as under the act of assembly, a release signed by her, or signed “Nora M. Hollinger,” agreeing to accept from the defendant company,— of the York and Dallastown Electric Railway Company,— the sum of $100 in settlement and payment of the damages incurred by her in this accident; and to ask her whether or not she signed this release and delivered it to John A. Hoober, Esq., one of the attorneys of the company; and whether or not before signing it she did not say to Mr. Hoober that she had consulted with her friends, and been advised that she ought to have $100 in payment of these damages. For the purpose of affecting the credibility of the witness as to the amount of damages now claimed by her in this suit; and as showing an admission of a fact, to wit, the amount of damages claimed and acceded to by the defendant.
    , The Court: Make your objection.
    Mr. Glessner: No objections to this, if they show all the facts and circumstances under which the release was gotten from this girl at the time she was in pain and suffering at the hospital.
    The Court: Will that be allowed?
    Ex-Judge Stewart: I do not know anything about except what I am offering to show. They can cross-examine her, and find out everything else that I do not get.
    Mr. Glessner: There is one objection, that,.she being a minor, the sum cannot affect in any wise her rights to recover in this case, — being a minor, and not able to contract.
    The Court: It does not seem to me that any admission she made at all has any bearing upon this. Of course if you do not object, we will admit it.
    Mr. Glessner: Well, we will object, your honor, for that reason.
    The Court: This was offered yesterday, and objected to as not cross-examination, and it was clearly not evidence then. It seems clear that this girl was under twenty-one years, and is still, and that she was not consulted with, or advised, by her guardian; and it appears that it was not done in the presence of her guardian, or anybody that has control over her. She was a minor, and not bound by any action at that time. It seems to me she was a minor, and incapable of telling what her damages were at that time; and it does not follow that she is not suffering more injury, which has been made apparent since, and that she knew not of at that time. We do not think it is evidence in this case, the guardian bringing this suit, and in her right. With these facts in mind, any attempt to obtain a release from her is not binding upon her, and cannot affect the verdict in this case. We do not see that it is evidence at all. Do you object to it generally, or do you object with the qualification to it?
    Mr. Glessner: After consideration, I object to it generally as not evidence in this ease.
    Ex-Judge Stewart: The court’s attention is called to the purpose. It is not intended as an estoppel, or a release, or to prevent a recovery. It is offered as affecting her credibility as a witness in the case in reference to a fact in the case, to wit, the amount of damages. Even if she be a minor, a minor can admit a fact just the same as a person of mature years can do it; and by this paper she.admitted that at that time she was injured to the extent of $100. Now, for whatever it goes for, or whatever it is worth to the jury, it does not prevent her recovery here; but it does go to the jury, if admitted, as to the extent of her injuries.
    The CourtA girl who is a minor, at that stage of life is perhaps not capable'of estimating her damages, — damages advised by friends; or it may in fact be represented to her by counsel, — such as may induce her to take $100. To a girl of that kind it may seem to be a large sum of money. And it does not seem to me that, because her counsel advises a suit for a larger sum of money here, and she being asked the question whether she did not demand a smaller sum of money, and she admitted it, that this ought to be brought up, under that state of facts in the testimony, to raise the inference that her testimony is not reliable, because she is not still willing to take the $100 that she agreed to take under the circumstances when she signed that paper. We do not think it is evidence, or fair, and we reject the offer.
    Ex-Judge Stewart: She was eighteen years and a half old, if the court please. She was not an infant, though she was in law.
    The Court: How would she know?
    Ex-Judge Stewart: She was still old enough to tell the truth at that time.
    The Court: We reject the offer, and seal an exception for the defendant. [1]
    The court charged in part as follows:
    [The plaintiffs’ claim for damages suffered by them respectively, $20,000 and $1,000, as they claim, for certain injuries suffered by Nora M. Hollinger as a passenger on one of the York and Dallastown cars of the York Railways Company, from the collision of two cars on said railway on August 18, 1907, near Dallastown, through the negligence of the railway company.
    ********
    The evidence is that before the collision Nora M. Hollingerwas healthy, and was hired on a farm at $6.00 per month; and the month immediately preceding the injuries, was engaged at cigar making earning $5.00 per week; and these will be the basis of your calculation of the guardian’s loss of Miss Hollinger’s services, or wages, together with a careful consideration of her disability from her said injuries to work from August 18, 1907, to this time, and her probable ability or disability to work and earn wages until arriving at the age of twenty-one years, not exceeding, as I said before, the sum of $1,000, together with the doctor’s bill of $25.50, which sum is the amount claimed in the plaintiff’s statement. The verdict cannot be above the amount claimed in the statement. The amount claimed by the guardian for Nora M. Hollinger is $20,000.]
    Verdict and judgment for Nora M. Hollinger for $3,500 and for Frederick F. Snyder, guardian, for $500. Defendant appealed.

      Errors assigned were (1) ruling on evidence; (2) portion of charge as above, quoting it; (4) in not setting aside the verdict as excessive.

      W. F. Bay Stewart, with him John A. Footer and George S. Schmidt, for appellant.
    It was manifest error to exclude the question propounded to the witness in the defendant’s offer. She was a plaintiff and virtually the plaintiff in the case. She was the only witness who could testify to her pain and suffering, and virtually the only one who could testify with certainty as to the extent and permanency of her injuries. Being the plaintiff and a competent witness, the defendant was entitled to search her.
    The evidence was rejected upon the ground that being a minor she was not bound by her agreement, but as the evidence was offered to affect her credibility as a witness, it was competent: Kramer v. Kister, 187 Pa. 227; Cameron v. Montgomery, 13 S. & R. 127; Ott v. Houghton, 30 Pa. 451; Batdorff v. Farmers’ National Bank, 61 Pa. 179; Beck v. Hood, 185 Pa. 32.
    The statement of the amount in the pleadings cannot help the plaintiff’s case. The instructions to the jury have no connection with the pleadings except through the evidence. The jury have nothing to do with the pleadings.

      June 22, 1909:
    The, judge’s only source of knowledge on the subject was the pleadings, but if they are not evidence, his statement of a fact from them is equally not evidence: Switland v. Holgate, 8 Watts 385, Musselman v. R. R. Co., 2 W. N. C. 105; Greber v. Kleckner 2 Pa. 289; Phila., etc., R. R. Co. v. Alvord, 128 Pa. 42; Branson v. Kitchenman, 148 Pa. 541; Hassan v. Klee, 168 Pa. 510.

      James G. Glessner and K. W. Altland, for appellees.
    It is the duty of the court to limit the amount of damages to the amount asked for in the pleadings: Ft. Worth, etc., Ry. Co. v. Measles, 81 Tex. 474 (17 S. W. Repr. 124); Garber v. Columbia Telephone Co., 20 Lanc. L. R. 378; Milliken v. Long, 188 Pa. 411.
   Opinion by

Me. Justice Mesteezat,

This is an action of trespass to recover damages for injuries which the minor plaintiff sustained while she was a passenger on defendant company’s car. The negligence of the defendant was admitted and it was conceded that both plaintiffs were entitled to recover such damages as'-they had sustained by reason of the injury to the minor plaintiff. The only question, therefore, for the jury was the amount of damages which the plaintiffs were entitled to recover. Such being the status of the case we think it was reversible error for the learned judge to charge as follows: “The plaintiffs’ claim for damages suffered by them respectively, $20,000 and $1,000, as they claim, for certain injuries suffered by Nora M. Hollinger as a passenger on one of the York and Dallastown cars of the York Railways Company, from the collision of two cars on said railway on August 18, 1907, near Dallastown through the negligence of the railway company.” The jury returned a verdict for $3,500 in favor of Nora M. Hollinger and for $500 in favor of Frederick F. Snyder, her guardian and the other plaintiff.

In Reese v. Hershey, 163 Pa. 253, we condemned the reading of the statement, including the averment of damages, to the jury. It was there said to be exceedingly bad practice, and that “ it tends to get figures and amounts into the jury’s mind without evidence.” We think this is unquestionably true. It is a suggestion to the jury which in their minds takes the place of testimony. The averment of damages in a statement is, of course, no proof of the amount due the plaintiff; but when it is read to the jury by the court it is likely to have weight with them and take the place of evidence. In negligence cases, as is well known, the amount of damages laid in the statement is ordinarily much in excess of the sum which the plaintiff expects to recover, and is certainly not a standard for estimating the damages due him. Placing the figures named in the statement before the jury in the court’s charge gives a basis, not established by evidence, on which to calculate the verdict. Admonitions by the court that such is not the purpose in stating the amount claimed will not be sufficient to eliminate it entirely from the minds of the jurors. It will remain with them and, consciously or unconsciously, it will influence them in arriving at a conclusion. At all events, as must be conceded, it is entirely improper for the jury to consider the amount of damages claimed in the statement, and this being true, the court should not bring it to the attention of the jury.

In his opinion overruling the motion for a new trial, the learned judge says he stated the amount claimed as damages for the purpose of charging that the verdict could not exceed the amount laid in the statement. But this was quite unnecessary. Had the jury found a verdict in excess of the claim laid in the statement there was a complete remedy, and it would not have involved the error of getting the plaintiffs’ claim before the jury. In this case, however, it was manifest that the jury could not under the evidence return a verdict for a sum approximating the amount of .damages laid in the statement. The aggregate of both verdicts was only one-fifth of the plaintiffs’ claim, and it is strenuously argued by the appellant that this sum is far in excess of what the evidence justified. It is clear, therefore, that in this instance there was no cause to apprehend a verdict in excess of the amount of the plaintiffs’ claim as laid in the statement.

We are asked in this case to reverse the judgment on the ground that the verdict was unreasonably excessive, far beyond what the evidence warranted the jury in finding. This we have the authority to do under the Act of May 20, 1891, P. L. 101, but we have seldom exercised the authority conferred by the act. It is the duty of the trial court to control the amount of the verdict. It hears the evidence, sees the witnesses as well as the parties, it is placed in possession of all the facts which will enable it to do justice between the parties. In our judicial system, the primary duty of correcting an excessive verdict unquestionably rests with the trial court. It has the authority and is in possession of the facts which will warrant it in correcting an error of this kind. While it should not interfere with the functions of the jury and undertake to determine facts which is exclusively the province of the jury, yet when it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the court should set aside or reduce the verdict. This is a duty as imperative as any other which rests upon a trial court, and there should be no hesitancy in performing it.

Nora M. Hollinger was a minor at the time she signed the alleged release, and the learned trial judge properly rejected it when offered in evidence. Whether or not she signed it was wholly immaterial, as it was not binding upon her. If by the advice of friends she had agreed when first injured to accept a comparatively nominal sum in payment of her damages, it did not debar her from recovering such damages as she could show the jury at the trial she had actually sustained. We cannot see that if she had admitted that through the persuasion or advice of friends she had agreed to accept $100 in payment of her damages, it would affect her credibility as a witness in this case. Immediately after the accident she might have thought herself but slightly injured, but subsequently and prior to the trial her injuries resulting from the negligent act of the defendant might have become very serious. We are inclined to think with the learned trial judge that the attempt to use the release obtained under such circumstances, produced upon the jury an impression unfavorable to the defendant.

The other assignments need not be considered; but for the reasons stated the second assignment must be sustained.

Judgment is reversed with a venire facias de novo.


author: Me. Justice Mestrezat,

text:
    Buchar’s Estate.

      Executors and administrators — Discretion—Fraud—Will.
    Where a testator by his will gives a portion of his estate to his son “at such time and when my executors, or the survivors of them shall decide that in their judgment he is competent morally to have control of the same,” the court will not interfere with the discretion placed in the executor without clear and adequate cause, but it will interfere and direct possession be given to the son where an auditor finds from competent and sufficient testimony that the son was of business capacity, competent to accumulate and take care of his property, that the executrix, his sister, was very hostile to him and that by retaining possession of the estate until her brother’s death without issue, she would be entitled to half of it absolutely.
    Argued May 18, 1909.
    Appeal, No. 119, Jan. T., 1909, by Emma J. Witman, from decree of O. C. York Co., dismissing exceptions to auditor’s report in Estate of Jacob Buchar, deceased.
    Before Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of George E. Neff, Esq., auditor. Before Bittenger, P. J.

      Error assigned was in dismissing exceptions to auditor’s report.

      Edward Chapin and A. C. Wiest, for appellant,
    cited: Williams’s App., 73 Pa. 249.

      J. S. Black, with him V. K. Keesey and D. P. Klinedinst, for appellee,
    cited: McFarland’s App., 37 Pa. 300; Pulpress v. African M. E. Church, 48 Pa. 204.

      June 22, 1909:
   Opinion by

Me. Justice Mestrezat,

The rights of these parties in the court below depended upon a question of fact which the auditor and the court found against the appellant. There was ample evidence to warrant the finding and hence we will not disturb it.

The testator bequeathed and devised one-third of the residue of his estate “unto my son, Charles E. Buchar, at such time and when my executors, or survivors of them shall decide that in their judgment he is competent morally to have control of the same.” It is quite true, as argued by the appellant, that the court will not interfere with the discretion placed in the executor and trustee without clear and adequate cause. The reason of the rule is that the testator has a right to dispose of his property as he pleases, and he may subject all or any part of it to the discretion of his executor or trustee. This discretion, properly exercised, will not be interfered with by the courts. The presumptions are all in favor of the honest exercise of the discretion, and fraud or collusion will not be presumed.

There are, however, occasions when the court will interfere and protect the interests of the beneficiary. This will be done when the executor or trustee is actuated by improper or selfish motives, or his discretion is not exercised in good faith but arbitrarily and to further his own personal interests. If the trustee does not honestly exercise discretion, or his selfishness rather than the desire of the testator has become the rule of appropriation, the court will interfere: Pulpress v. African M. E. Church, 48 Pa. 204. The discretion of the trustee is but a legal one, and whenever the law determines that a proper case has arisen in which the trustee’s discretion should have been exercised in a particular way, he will be constrained to act in accordance therewith: Erisman v. Directors of the Poor, 47 Pa. 509; Stewart v. Madden, 153 Pa. 445; Severns’s Est., 211 Pa. 68.

Charles E. Buchar, the beneficiary, contends that the executrix was not exercising her discretion, but was abusing it on account of the ill feeling that she bore to him; that he was of good moral character; and that he had amassed and is the owner of considerable property. The auditor, after a very careful consideration of the testimony, sustained Buchar’s contention. The executrix is the sister of Charles E.'Buchar and the will provides that if Charles dies without leaving issue to. survive him “whatever of his share that has not been received by him shall go to said Emma Jane (the executrix) and Jacob F. (a brother), in the manner their shares go to them.” It will be observed that if the interest of Charles E. Buchar in the testator’s estate, which amounts to more that $11,000, is not transferred to him absolutely, but is held by the executrix in trust, and he dies without issue, his interest will go to the executrix and her brother. She therefore has a personal interest in continuing the trust and in preventing Charles from receiving the corpus of his interest in the estate. This, as suggested by appellant, would not be sufficient to deprive the executrix from exercising her discretion and in defeating the vesting of the property absolutely in Charles. If such result was produced by the exercise of a proper and honest discretion by the executrix, the court could not interfere. It appears, however, from sufficient evidence that the executrix is very hostile to her brother, and that she has on more than one occasion expressed that hostility with accompanying threats to impoverish him. Several witnesses were called who testified that they knew Charles and that he was morally competent to have control of his interest in his father’s estate; that his morals were good; that while he drank some liquor it was not to excess; that he was the owner of a farm, of a home in Manchester borough, a bungalow along Conewago Creek, and owned gas, water and mining stocks worth several thousand dollars. The only evidence as to Charles’ “moral incompetency” was the testimony of the executrix herself. She testified that her brother drank to excess, and that she had seen him going into a barroom under the influence of liquor. This was all the testimony that was offered to show that Charles was not morally competent to have control of his interest in his father’s estate.

We think it apparent that the testator’s desire was to protect Charles and his estate against the effects of excessive drinking, and it was for that purpose that he inserted in his will the clause we have quoted subjecting the management of Charles’ interest to the discretion of the executrix. It would appear, however, that notwithstanding his inclination to drink intoxicating liquor, Charles had accumulated considerable property which he still owned. His drinking habit manifestly did not interfere with his ability to accumulate property. This would seem to be an answer to the allegation that he was not “competent morally to have control” of his interest in his father’s estate. It does not appear that he has not been wholly competent to protect and manage the property which he has acquired by his own exertion. From the evidence, he seems to have business capacity, and to be competent to take care of and promote his business interests. This is the standard set up in his father’s will by which his competency to control the property given him is to be determined. These facts taken in connection with the further facts, found by the auditor on sufficient evidence, that the executrix and Charles are hostile to each other, and that the former will benefit by the continuation of the trust and the failure to exercise her discretion in transferring the estate absolutely to Charles, we think justified the auditor in finding that the decision of the executrix “was not an honest exercise of such discretion, but rather from caprice, ill will and in wanton disregard of the interests of the said Charles E. Buchar.”

The assignments of error are overruled, and the decree of the court below is affirmed.


author: Mr. Justice Elkin,

text:
    Shuemaker v. Nissley, Appellant.

      Vendor and vendee — Purchase of land subject to option.

    Where a person purchases real estate under articles knowing that a committee of a proposed street railway company has an option upon it of which he knows the terms, and of which he is to have the benefit, he cannot refuse to pay the whole amount of the purchase money when a proper deed is tendered to him, unless he can show that the vendor had covenanted to compel the holder of the option to exercise it, or that the vendor had received some benefit on account of the option to which the purchaser was entitled. In such a case the mere fact that the option had not been exercised is not sufficient to entitle the purchaser to a deduction on account of the purchase money.
    Argued May 19, 1909.
    Appeal, No. 156, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Aug. T., 1907, No. 90, on verdict for plaintiffs in case of Christian H. Shuemaker et ah, Executors of the Will of Christian Shuemaker, deceased, v. Eli L. Nissley.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover the purchase money of real estate.
    At the trial the jury returned a verdict of $2,325.45, on which judgment was entered.
    On a rule for judgment for defendant n. o. v., Hassler, J., stated the facts to be as follows:
    The material facts are that the defendant on September 20, 1906, purchased a tract of land from the plaintiffs, at public sale, known as tract No. 2. The conditions of sale provided that the purchaser should sign an agreement, with approved security, immediately after the property was struck off, for the payment of the purchase money on April 1, 1907, and for faithful compliance with the conditions of sale. This the defendant did. It was stipulated in the conditions of sale that “the purchaser of tract No. 2 gets the benefit of the option thereon.” Notice of what this option was was given at the sale, and at the trial it was shown to be the right of a proposed street railway company to purchase a strip of land along one side of the said tract, thirty feet wide, upon which to lay its track, for the sum of $1;000. The option was held by a committee of a proposed street railway company, who entered into an agreement with the plaintiffs, after the sale of the land to the defendant. Just what the agreement contained was not shown, and it was not produced at the trial. It does not appear that the plaintiffs received any money or other benefit from the option when the agreement was made, or at any other time. Nor does it appear that any benefit is to arise from that agreement, or that it contained anything that in any way would affect the purchaser’s title or right to the land in question. The company for which the said committee was acting did not build their road and did not take the land. Another company, which it did not appear had any connection with the committee’s company, or had acquired any of its rights, did, after the defendant was in possession of it under his agreement, take a portion of land under the right of eminent domain, and gave a bond to secure the defendant for any damage he might sustain by reason of such taking, to the sufficiency of which the defendant excepted. His exceptions were dismissed by,the court after a hearing in which he took.part. The defendant took possession of the land soon after the sale of it to him, and has continued in possession of it since, farming it and gathering the crops. On April 1, 1907, the plaintiffs tendered the defendant a deed, and upon his refusal to pay the purchase money, brought this suit to recover it.
    June 22, 1909:

      Error assigned was in discharging rule for judgment for defendant non obstante veredicto.

      C. E. Montgomery, for appellant.

      N. M. Hollowbush, W. C. Rehm and W. U. Hensel, for appellees.
   Opinion by

Mr. Justice Elkin,

That appellant has been disappointed by failure to receive any benefit from the outstanding option on a strip of the land purchased is apparent. Expectations not realized are not a sufficient defense to an action based upon an express covenant ^to pay a specific sum of money on the delivery of a deed for the tract of land purchased at a bona fide sale after public notice. It is true one of the conditions of sale was that the purchaser of purpart number two was to get “the benefit of the option thereon,” but just what that benefit was, upon what conditions the option could or would be exercised, and if exercised, whether the consideration should be deducted from the purchase price or be paid by the street railway company direct to the purchaser, are all matters of conjecture about which nothing definite was written into the agreement between the-parties. Appellant did sign an agreement in writing in which it was stipulated that he had purchased purparts numbers two and three for a specific sum and that he and his surety would be responsible for the payment of the purchase money in compliance with the conditions of sale. The deed was delivered and purchase money paid for purpart number three. This action is to recover the purchase money for purpart number two, with the accrued interest thereon, no part of which has been paid. On April 1, 1907, appellant took possession under his agreement and has held the same from that time to the present. The defense set up is not entirely clear. If the option had been exercised and the consideration therefor had been paid, only 11,000 would have inured to the benefit of appellant and he would still be indebted for the balance of the purchase money. But the option was not exercised and no one received any benefit from it. The proposed street railway was never constructed and the strip of land under option for right of way purposes still remains the property of appellant. The appellees did not covenant to compel the street railway company to exercise the option, and, taking the most favorable view for appellant, the most that can be said is that if the option had been exercised while the appellees held title, appellant should have the benefit of the amount received on account' of the option by way of reduction on the purchase price agreed to be paid. If, however, for any reason, it should not be exercised until appellant took title, the benefit would accrue to him direct from the street railway company. We fully concur in the views of the learned trial judge as to the burden of proof. The plaintiffs made out a prima facie case for their whole claim by offering in evidence a deed showing title, letters testamentary, written contract and conditions of sale, deed executed and tendered, and by introducing testimony showing that appellant had been in continuous possession of purpart number two and had refused payment upon demand made. If the defendant had any set-off or other defense the burden was on him to make it out by affirmative testimony.' In this he entirely failed. He did not show that the option had been exercised or that any benefit had accrued to appellees or to anyone else by reason of it. He did not show that the option had ever been exercised, or’that failure to exercise it was the fault of appellees, or what damage, if any, was suffered by failure of the street railway company to exercise it. Clearly, under these circumstances the case was properly disposed of by the learned court below. The argument dwelt upon here about a different street railway company having appropriated another portion of the land under the right of eminent domain has nothing to do with the parties to this action. Whatever damage has resulted by the appropriation of the property of appellant must be paid by the company exercising the right and appropriating the land for its use.

Judgment affirmed.


text:
    Bender, Appellant, v. Bender.

      Wills — Trusts and trustees — Perpetuities.
    Testatrix gave her estate to trustees for the benefit of two nephews and a niece. She further directed as follows:
    “If any of said nephews and niece should die, then the child or children of such nephew or niece to receive the parent's share equally, to be paid to them or to their lawfully appointed guardian until such time as all three of said niece and nephews shall be deceased, after which the said rents, issues and profits shall be paid annually to all the children of said nephews and niece per capita, share and share alike, for life, and upon the decease of any of said grand-nephews and grandnieces his or her share to go to his or her heirs, thus paying the net income of said property to said grand-nephews and grand-nieces, or their heirs, until the last one of the following named grand-nephews and grand-nieces shall be deceased. The said grand-nephews and grandnieces are as follows, to wit: .... When the last' one of said above named grand-nephews and grand-nieces shall be deceased, then I direct said trustees or the survivor of them, or their successors in the trust, to sell all of said real estate at either public or private sale and make good and sufficient title deed therefor to the purchasers and convert all personalty into cash, and I hereby give and bequeath the same, and direct the distribution thereof, to and among the heirs of all the children of said nephews and niece, as aforesaid, per stirpes.” Held, that the will did not violate the rule against perpetuities.

      Argued May 19, 1909.
    Appeals, No. 157 and 158, Jan. T., 1909, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket, No. 5, p. 9, sustaining demurrer to bill in equity in case of Benjamin H. Bender v. Jacob H. Bender and Hugh R. Fulton, Executors of the Last Will of Anna E. Habecker, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity to declare a testamentary trust invalid as in violation of rule against perpetuities. Before Landis, P. J.
    From the record it appeared that Anna E. Habecker died, in Manor township, Lancaster county, Pennsylvania, on October 16, 1906, having first made her last will and testament, dated December 5, 1905. By her said will, she gave, devised and bequeathed all her estate and property, real, personal and mixed, unto her sister, Mary Habecker, for and during her natural life; and, after the death of the said sister, gave, devised and bequeaithed unto her nephew, Jacob H. Bender, and Hugh R. Fulton, Esq., as trustees, in trust, the undivided half of three tracts of real estate, viz.:
    “To rent, farm or crop said farms and the mill property to the best advantage, and from the rents, issues and profits thereof (1) to pay all taxes, repairs and insurance, and keep the properties in good condition. (2) To divide the balance, after deducting necessary expenses and compensation, into three equal parts or shares. The one-third or share thereof I direct to be paid to my said nephew, Jacob H. Bender, for and during his life. The one-third or share thereof I direct to be paid to my nephew, Henry H. Bender, for and during his lifetime. The other or third third or share thereof, I direct shall be paid to my niece, Eve Ann Bender, for and during her lifetime.
    “If any of said nephews and niece should die, then the child or children of such nephew or niece to receive the parent's share, equally, to be paid to them or to their lawfully appointed guardian; until such time as all three of said niece and nephews shall be deceased, after which the said net rents, issues and profits shall be paid annually to all the children of the said nephews and niece, per capita, share and share alike, for life. And upon the decease of any of said grandnephews and grandnieces, his or her share to go to his or her heirs. Thus paying the net income of said property to said grandnephews and grandnieces or their heirs, until the last one of the following named grandnephews and grandnieces shall be deceased. The said grandnephews and grandnieces are as follows, to wit: (a) 1, Fanny M. Bender; 2, Barbara M. Bender; 3, Annie M. Charles; 4, Elizabeth M. Bender; 5, Abraham M. Bender; 6, Charles M. Bender; and 7, Jacob M. Bender, children of Jacob H. Bender; (b) 1, Charles Bender; 2, Franklin Bender; and 3, Katie Bender, children of Henry H. Bender; and (c) 1, Annie Bender, child of Eve Ann Bender.
    “Seventh. When the last one of the above named grandnephews and grandnieces shall be deceased, then I direct said trustees, or the survivor of them, or their successors in the trust, to sell all of said real estate at either public or private sale, and make good and sufficient title deed therefor to the purchasers, and convert all personalty into cash, and I hereby give and bequeath the same, and direct the distribution thereof to and among the heirs of all the children of the said Jacob H. Bender, Henry H. Bender, and Eve Ann Bender, nephews and niece as aforesaid, per stirpes.”
    Mary Habecker died on October 5, 1906, eleven days prior to the .death of the testatrix, and at that time she owned the other undivided one-half of the three tracts above mentioned. Anna E. Habecker left to survive her as her heirs at law and next of kin a nephew, Benjamin H. Bender, the‘plaintiff; a nephew, Henry H. Bender; a niece, Eve Ann Bender; and a nephew, Jacob H. Bender; all of whom are of full age. In the last will and testament of the executrix, Jacob H. Bender and Hugh R. Fulton, Esq., were named as executors, and on October 22, 1906, letters testamentary were duly granted to them. Jacob H. Bender and Hugh R. Fulton, Esq., accepted the trusts relating to the three tracts of land above described, and, claiming, by virtue of their appointment, to act as trustees, they have entered upon and taken possession of the aforesaid undivided Half of the said three tracts of real estate, and still hold possession of the same. They deny plaintiff the right of possession to the one-fourth of the undivided half of said real estate, and, up to the time of the filing of the bill, he has been unable to obtain possession of any portion of it.
    Landis, P. J., stated the following conclusions of law:
    The rule against perpetuities is an artificial rule, made by the judges of England and transmitted to her colonies at an early date. It owes its birth and the shape that it has assumed to executory devises of chattels real. It was held, in the celebrated Duke of Norfolk’s case, 3 Chan. Cases, 1, by Lord Chancellor Nottingham, that the limitation over was good, provided the contingency upon which the limitation over was to take effect happened within'a life in being, and that any limitation is good which must take effect within the lives in being. In Scatterwood v. Edge, 1 Salk. 229, the court of common pleas is said to have agreed in holding that “the compass of a life or lives” was a reasonable time, “for let the lives be never so many, there must be a survivor, and so it is but the length of that life.” And Lord Hardwicke, in Hopkins v. Hopkins, 1 Atk. 580, said: “ It is not (in my opinion) material to restrain it to the life of tenant for life of the land, provided it be restrained to the life of a person in being.”
    In Thellusson v. Woodford, 4 Ves. 227, a testator gave a large fortune to accumulate until all his sons and grandsons’ children, who were living at his death, were dead, and then to be paid over. He left three sons and six grandsons, him surviving. Lord Loughborough, assisted by Lord Alvanly, and Buller, and Lawrence, JJ., held the gift over good, and the house of lords, on the unanimous opinion of the judges, affirmed the decree. The eccentricity of the will and the large amount involved excited great interest in the case. The arguments were of the most elaborate character, and the judges did not conceal their dislike of the will; but no one of the many eminent lawyers who took part in the decision seems to have felt any doubt in the case.
    This decision led to the passing of the statute 39 and 40, George III, chap. 98, commonly called the Thellusson act, which thereafter prevented the accumulation of income for a longer period than twenty-one years after the death of the grantor, settler, devisor, or testator, or during the minority or respective minorities of any person or persons who shall be living, or in ventre sa mere, at the time of the death of such grantor, devisor or testator. This rule, together with the common law, was transmitted to Pennsylvania, and may here be regarded .more properly as a rule against remoteness. It has been somewhat modified in accordance with the Thellusson act by the Act of April 18, 1853, sec. 9, P. L. 503, and to some extent by a number of subsequent acts. In Hillyard v. Miller, 10 Pa. 326, Gibson, C. J., said: “A perfect definition of a perpetuity has not been given, and the nearest approach to it is found in Lewis on Perpetuities, chap. 12, where it is said to be a future limitation, whether executory or by way of remainder, and of real or personal property; which is not to vest till after the expiration of, or which will not necessarily vest within, the period prescribed by law, for the creation of future estates, and which is not destructible by the person, for the time being, entitled to the property subject to the future limitation, except with the concurrence of the person interested in the contingent event.”
    As was said by Professor Gray, in his work on the Rule Against Perpetuities, sec. 629: “The rule against perpetuities is not a rule of construction, but a peremptory command of law. It is not, like a rule of construction, a test, more or less artificial, to determine intention. Its object is to defeat intention. Therefore, every provision in a will of settlement is to be construed as if the rule did not exist, and then to the provision so construed the rule is to be remorselessly applied.” See, also, Gerber’s Est., 196 Pa. 366. “Trusts for accumulation of income are as rigidly restricted by the rule against perpetuities as legal estates,” and a trust for a noncharitable purpose which is to continue beyond the limits prescribed by the rule is wholly void, and will not be held valid to the extent of the rule and invalid as to the excess: Hillyard v. Miller, 10 Pa. 326.
    But, it is equally true that, where a trust is created for the benefit of certain persons in being at the death of the testator, it may continue until the death of the survivor. Thus in Goehring’s App., 81* Pa. 283, a trust was made by deed to Dennison, his heirs and assigns, of real estate for the use of his three children, to lease the premises, etc., “to have and to hold .... during the existence of this world,” paying to the grantor $5.00 rent during her life, and after her death to the heirs, etc., of her husband, deceased, their heirs and assigns, and subject to this rent, in trust that Dennison, his heirs and assigns, should lease the premises for such term as he or they might deem expedient, and apply the rents equally between the three children; if either of them should die without issue, the whole of the rents to go to the survivors; if either should leave issue, such issue to take the parent’s share; after the death of all the children, the premises to be held in trust for their right heirs, etc., their heirs and assigns; if any die without issue, to hold for the survivors, their heirs and assigns, etc., with the proviso that there should be no estate vested in the three children which might be charged with their debts, but the rents should be applied to them free from any incumbrances created by the three children or the lawful issue of either of them at any time during their life or the life of a survivor. It was held that trust did not contravene the rule against perpetuities. And in Stephens v. Dayton, 220 Pa. 522, Mr. Justice Mestrezat, in delivering the opinion of the court, said, “The controlling language is: ‘This trust shall continue during the life of the survivor of any grandchildren, who may be living at the time of my death, or until such time, although one or more of said grandchildren be living, as the said trustees shall unanimously agree that it will be wise and safe to terminate said trust. . . .’ In no contingency, therefore, can the trust be extended beyond the life of a surviving grandchild who was living at his grandfather’s death. Hence it must be terminated within a life in being at the death of the creator of the trust.”
    An interest is not obnoxious to the rule against perpetuities, if it begin within a life in being and twenty-one years thereafter, though it may extend beyond. The remoteness against which the rule is directed is remoteness in the commencement, or first taking effect of limitations, and not in the cesser or determination of them. An estate that is to arise within the prescribed period may be so limited as to be determined on the happening of any event, however remote. See Johnston’s Est., 185 Pa. 179; Cascaden’s Est., 153 Pa. 170; Goddard’s Est., 198 Pa. 454.
    Under these authorities, let us, therefore, briefly consider the will of the testatrix. The real estate in question was given to trustees: First, to pay all taxes, repairs and insurance, and keep the properties in good condition; second, to divide the balance, after deducting necessary expenses and compensation, into three equal parts or shares. The one-third or share thereof was to be paid to her said nephew, Jacob H. Bender, for and during his life; the one-third or share thereof to her nephew, .Henry H. Bender, for and during his lifetime; and the other or third third or share to be paid to her niece Eve Ann Bender, for and during her lifetime. It will hardly be disputed that, up to this point, the trust was a good and valid one. She then provided that, “if any of said nephews and niece should die, then the child or children of such nephew or niece to receive the parent’s share, equally, to be paid to them or to their lawfully appointed guardian, until such time as all three of said niece and nephews shall be deceased, after which, the said net rents, issues and profits shall be paid annually to all the children of the said nephews and niece, per capita, share and share alike, for life. And upon the decease of any of said grandnephews and grandnieces, his or her share to go to his or her heirs.” So far as this provision of the trust provided for the payment of the income to the child or children of the deceased nephew or niece until such time as all three of them should be dead, the trust was also valid; but, if, without more, the issues and profits were then to be paid to all the children of said nephews and niece, per capita, share and share alike for life, it would appear that such issues and profits might be payable to some that were not in existence at the death of the testatrix, or had not been born within twenty-one years after that date. Therefore, if this were all that appeared in the case, in my judgment the trust would be void. But the testatrix added: “Thus paying the net income of said property to said grandnephews and grandnieces, or their heirs, until the last one of the following named grandnephews and grandnieces shall be deceased. The said grandnephews and grandnieces are as follows, to wit: (a) 1, Fannie M. Bender; 2, Barbara N. Bender; 3 Annie M. Charles; 4, Elizabeth M. Bender; 5, Abraham M. Bender; 6, Charles M. Bender; and 7, Jacob M. Bender, children of Jacob H. Bender; (b) 1, Charles Bender; 2, Franklin Bender; and 3, Katie Bender, children of Henry H. Bender; and (c) 1, Annie Bender, child of Eve Ann Bender.” In the next clause of her will, she also provides that “when the last one of the above named grandnephews and grandnieces shall be deceased, then I direct said trustees or the survivor of them, or their successors in the trust, to sell all of said re.al estate at either public or private sale, and make good and sufficient title deed therefor to the purchasers, and convert all personalty into cash, and I hereby give and bequeath the same, and direct the distribution thereof, to and among the heirs of all the children of the said Jacob H. Bender, Henry H. Bender, and Eve Ann Bender, nephews and niece as aforesaid, per stirpes.” It will then be observed that the grandnephews and grandnieces who were to take under the testatrix's will were all in being at the time of her death. While using the words that “the said net rents, issues and profits shall be paid annually to all the children of the said nephews and niece per capita,” she afterwards designated who these grandnephews and grandnieces were, and provided that, upon the death of the last one of those named, this real estate should be sold and the proceeds distributed.
    It, therefore, seems to me that the trust is a good one under the law, and, for that reason, it is concluded that the demurrer must be sustained and the bill dismissed at the costs of the plaintiff.
    Demurrer sustained, and bill dismissed, at costs of plaintiff.

      Error assigned was in sustaining demurrer and dismissing the bill.

      June 22, 1909:

      C. E. Montgomery and W. U. Hensel, with them J. W. Denlinger, for appellant.

      Hugh R. Fulton and W. H. Keller, of Coyle & Keller, for appellees.
   Per Curiam,

The decree is affirmed on the findings of law by the court below.


text:
    Western National Bank v. York Silk Manufacturing Company, Appellant.

      Bailment — Pledge—Letter of credit — Bills of exchange.

    Where a banker issues a letter of credit to a manufacturer of silk, and accepts bills of exchange drawn against silk purchased by the manufacturer on the credit of the letter, and it is agreed that the banker shall retain title to the silk until the acceptances are repaid, and that the manufacturer shall have possession of the silk, to work it up, the banker may retake the silk, without losing his right to exhaust all his remedies against the manufacturer before resorting to the sale of the silk as collateral, to recoup himself. ✓
    Argued May 20, 1909.
    Appeal, No. 162, Jan. T., 1909, by defendant, from decree of C. P. York Co., Jan. T., 1908, No. 1, on bill in equity in case of Western National Bank, American Silk Company, C. H. Emig and Harry S. Wiest v. York Silk Manufacturing Company.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for a receiver.
    Wanner, J., stated the facts to be as follows:
    The claim of Brown Brothers & Company, is for the sum of $153,187.96 for moneys advanced, at the request of the York'Silk Manufacturing Company, in the purchase of raw silk in Japan, with interest on a part thereof, and $5,000 for plaintiffs’ expenses and counsel fees.

      The plaintiffs, from March 12, to August 10,1907, issued certain letters of credit, for the account of the York Silk Manufacturing Company, addressed to Japanese silk merchants, and afterward accepted and paid the drafts of the latter, covering their invoices of silk, in consideration of the defendant’s agreement to provide the plaintiffs with the funds necessary to meet said acceptances, previous to the maturity of said drafts, and to pay certain commissions, and expenses.
    The bills of lading were to be made out in favor of the plaintiffs, and the title and ownership of the goods were to remain vested in the plaintiffs, until such time as the defendant should pay its indebtedness to the plaintiffs in full.
    Plaintiffs also had the right to sell and dispose of the goods thus pledged by the defendant, to reimburse themselves for their advances, in the event of the defendant defaulting in its payments.
    Pursuant to this contract, which is contained in the letters of credit, and the agreement of the defendant attached thereto, the plaintiffs accepted drafts for silks purchased by the defendant on said letters of credit, to the amount of $211,890.77, which silks came to the plaintiffs, with invoices, and bills of lading, made out in their names. Of these silks, 193 bales of the invoice value of $133,692.63, were afterward delivered to the defendant at York, Pa. The remainder of them, viz.: 100 bales, of the invoice value of $78,198.19, remained with, and are still in the possession of, Brown Brothers & Company.
    The various "Trust Receipts” under which said goods were “intrusted” to the defendant, from August 24 to October 23, 1907, provided that the defendant should hold the same in trust for the plaintiffs, as their property, substantially as specified in their former agreement. They were at liberty to sell the same on the plaintiffs’ account, and to turn over the proceeds of sale to them, to be applied to the payment of said acceptances and of any other indebtedness of the defendant to Brown, Shipley & Company, or to Brown Brothers & Company.
    Permission was also granted defendant to manufacture and remanufacture the silks, with the duty of identifying the product and selling it in the same way, for the plaintiffs' benefit. In case such product could not be identified, the defendant was to keep and hold, “in trust for Brown Brothers & Company and as their property” manufactured goods of equal value, with the property originally received from the plaintiffs, and on demand to deliver up the same to them.
    Brown Brothers & Company reserved the right to cancel this trust at any time, and to repossess themselves of the silk or of the manufactured product, or of the proceeds of sale of either, wherever the same might be found.
    It was further stipulated that on the defendant's failure, suspension, or assignment for the benefit of creditors, or on the nonpayment at maturity of any of said acceptances, or other indebtedness of the defendant, to either Brown, Shipley & Company, or to Brown Brothers & Company, all obligations, acceptances, or other indebtedness of the defendant to them should at once become due and payable.
    The defendant being in default, the plaintiffs petitioned the court for a return of the goods, in the receiver’s hands, alleging title thereto, under said agreement and trust receipts. The receivers assenting thereto, the court, on May 5,1908, ordered the return of seventy-five bales of raw silk, of the market value of $35,934.30. At the same time, by authority of the court, the receivers paid to the plaintiffs the sum of $31,900.75 for certain partly manufactured goods which they retained. But other silks, of the value of $34,277.29, which had also been received from the plaintiffs, by the defendant, have never been returned. The defendant’s indebtedness for these being admitted, it was afterward paid by the receivers under an order of the court. But defendant denies all liability for moneys advanced by plaintiffs on any of the goods returned to them.
    The court entered a decree in favor of the plaintiffs.

      Error assigned was the decree of the court.
    J. S. Black, with him V. K. Keesey, for appellant.
    There is no question raised as to the ownership of the silk. Admittedly it has from the beginning been the property of the appellee, and in addition this court, construing a like trust receipt, has held that it constitutes a bailment merely: Brown v. Billington, 163 Pa. 76.
    Where goods are delivered under a contract of bailment with the privilege to the bailee to buy the goods at a certain price, if the contract is canceled and the goods retaken by .the bailor, all evidences of indebtedness from the bailee to the bailor, whatever their form, on account of the price of the goods, are canceled with the contract: Seanor et al. v. McLaughlin, 165 Pa. 150; Campbell Printing Press, etc., Co. v. Hickok, 140 Pa. 290; Scott v. Hough, 151 Pa. 630.
    The law will tolerate no such absurdity as the seizure goods by one claiming them as his own, and an action at the same time by the same person for the price of those goods as if purchased by and belonging to another: Ketcham v. Davis, 31 Pa. Superior Ct. 583; Wheeling v. Phillips, 10 Pa. Superior Ct. 634; North & Co. v. Yorke, 6 Pa. Superior Ct. 354; Jacob v. Groff, 19 Pa. Superior Ct. 144; Durr v. Replogle, 167 Pa. 347; Wotring v. Shoemaker, 102 Pa. 496; Semple v. R. R. Co., 172 Pa. 369.

      John G. Johnson, with him George S. Schmidt and Henry C. Niles, for appellees.
    In Pennsylvania it has been held that a contract providing for the furnishing by a banker of money for the purchase of property, keeping the title evidences thereof and delivering the property to the party at whose request the money was furnished, taking from him a trust receipt wherein it was agreed to hold as property of the banker, with power to sell and deliver proceeds to the banker for the credit of the borrower and bailee, is valid: Brown v. Billington, 163 Pa. 76; Bank v. Baum, 187 Pa. 48; Keystone Watch Case Co. v. Fourth St. Nat. Bank, 194 Pa. 535.
    Under similar circumstances a lending bailor may recover the goods from the assigned estate of the borrowing bailee upon proper identification: Farrell’s Est., 17 Pa. Superior Ct. 240; Thompson’s App., 22 Pa. 16; Smith v. Moors & Co., 215 Pa. 421; Moors v. Jagode, 195 Pa. 163.

      June 22, 1909:
   Opinion by

Mr. Justice Elkin,

Nothing more could be said, or better said, than has been said by the learned counsel for appellant to sustain the position taken in the court below and here on the questions involved. This position is very frankly stated to be “that by the terms of this contract no credit was authorized to be given to appellant. Silk was purchased for the appellees through the agency of the appellant and paid for by means of drafts drawn by the merchant upon the appellees. The silk so purchased immediately became the property of the appellees, and was never at any time the property of the appellant. The agreement provides for a bailment of the silk bought for the appellees to the appellant, and contemplated ultimately a sale of that silk to the appellant.” If this were a proper understanding of the contractual relations existing between the parties and a correct interpretation of the covenants entered into by them, there would be great force in the argument. But to place such a construction upon the contract, our eyes must be closed to the situation of the parties, the scope and character of their business relations, the nature of their transactions, and to the manifest intention of the contracting companies. Such a view of the case ignores the purpose for which the contract was made and places the contracting parties in a relation not intended by either of them. The intervening petitioners, the appellees here, are bankers, while the defendant company, the appellant, is a manufacturer of silk fabrics. The bankers receive moneys on deposit, discount commercial paper, negotiate loans, issue letters of credit and do a general banking business. The appellant company manufactures and sells silk products and for these purposes purchases silk materials in foreign markets. In the transaction of its business it became necessary to establish a credit and this was done through the banking company by means of a letter of credit issued to appellant upon such terms and conditions as were deemed ample to protect the bankers for moneys advanced from time to time to pay acceptances. It was clearly within the power of the contracting parties to make whatever contract they chose to make for this purpose so long as the terms thereof were not unlawful or against public policy, and no such questions arise here. The bankers were not engaged in the silk business and did not need silk materials, the appellant was in that business and did need the silk. This was the situation of the parties when the bankers agreed to extend their credit and appellant agreed that the title, possession and right of possession, of the materials purchased and for which bills of exchange might be drawn, should be and remain in the bankers until the indebtedness of appellant thus created shall have been paid. It certainly cannot be said, under these circumstances, that “no credit was authorized to be given appellant;” or, that the “silk was purchased for the appellee through the agency of appellant;” or, that the parties only had in contemplation a purchase of the silk by the bankers in the first instance and the sale of it to appellant in the second place. To so hold would be to reverse the natural order of the business relations existing between the parties, and would make the bankers who issued the letter of credit and paid the acceptances of bills drawn against that credit, dealers in merchandise, while the manufacturing company, at whose instance the credit was extended, and for whose use the silk was purchased, would simply enjoy the privilege of buying silk from the bankers from time to time as its necessities might require. No such thing was ever contemplated by the parties, and it is not necessary that the writings evidencing their contract should be given such a strained and unreasonable interpretation. In such transactions the intention of the parties is the guide to correct interpretation, and when viewed in this light, it is perfectly clear that the silk materials were purchased by appellant for its own use and that the title, possession and right of possession only passed to the bankers as security for the acceptances paid upon bills of exchange drawn against the credit given. The letter of credit was issued to the silk company and was intended for its benefit. The acceptances paid by the bankers from time -to time on account of bills drawn against the credit given created an indebtedness against appellant, which it was bound to pay according to the terms of the contract. The silk was held in the nature of a collateral security for the moneys thus advanced. With this view of the situation there is but little difficulty in arriving at a proper solution of the questions raised by this appeal. We fully concur in the. views expressed by the learned court below in disposing of the questions presented there and argued here. The appellant had the right to enter into the contract and is bound by its terms. It was distinctly provided therein that the bankers might at their discretion, sell any or all of the silk, and that the proceeds thus derived should be applied on account of the indebtedness. It was further provided, and this was evidently done in aid of the silk company, that the silk, the title to which was held by the bankers as a security, might be intrusted to appellant for manufacturing purposes upon a contract of bailment, but the right to retake the silk at the discretion of the bankers was expressly reserved. In the present case this is what was done, all of which was in accordance with the terms of the contract and we think this is an end of the case.

Decree affirmed at the cost of appellant.


text:
    Hamill, Appellant, v. Lancaster County.

      Negligence — Bridges—County bridge — Approach to bridge — By-law— Nonsuit.

    In an action against a county to recover damages for personal injuries sustained by the alleged negligence of the county in not maintaining a guard rail along the side of an approach to a county bridge, a nonsuit is properly entered where the evidence of the plaintiff shows that the accident did not occur on any part of the approach to the bridge, but did happen on a township road leading up to the approach of the bridge.
    Argued May 19, 1909.
    Appeal, No. 159, Jan. T., 1909, by plaintiff, from order of C. P. Lancaster Co., April T., 1907, No. 37, refusing to take off nonsuit in case of Jennie Hamill v. The County of Lancaster.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.

      June 22, 1909:
    Trespass to recover damages for personal injuries. Before Landis, P. J.
    The opinion of the Supreme Court state the facts.

      Error assigned was refusal to take off nonsuit.

      C. E. Montgomery, for appellant.

      N. Franklin Hall, John E. Malone and H. Frank Eshhman, for appellee.
   Opinion by

Mr. Justice Elkin,

The learned trial judge gave this case such careful consideration and the reasons stated for the conclusion reached are so convincing that little need be said in affirmance of the judgment entered. The case has been argued here on the theory that the court below erred in not submitting to the jury the question whether or not the place at which the accident occurred was part of the approach to the county bridge. Many cases are cited to show that ordinarily the question of what constitutes an approach to a bridge is to be determined by the jury. That such is the rule no one will dispute. All authorities recognize it and the courts adopt it. The difficulty in the present case is that the plaintiff failed to introduce any evidence to show that the place where the accident occurred is now or ever was any part of the approach to the bridge. The burden is always on the complaining party to establish by sufficient affirmative testimony the negligence charged against the person or corporation sought to be made answerable in damages. The negligence charged in the first statement of claim was failure on the part of the defendant county to provide guard rails for the bridge. In the amended statement failure to provide and maintain guard rails on either side of the approach to the bridge is averred. In the original statement the span of the bridge was alleged to be from thirty to forty feet and the approaches from ten to fifteen feet; while in the amended statement the span of the bridge is stated to be from seventy-five to eighty feet, and the approach on the Lancaster county side from thirty-five to forty feet. The pleader evidently had some doubt about what constituted the approach to the bridge and how far it extended into the township road. When the bridge was constructed the county made an approach extending from the end of the bridge a distance of twenty-one feet four inches, which was protected by wing walls three feet high. The township did some work on the public road leading from the tailrace to the wing wall, thus connecting the approach to the bridge built by the county with the public road. The accident occurred on the public road about halfway between the tailrace and the wing walls. The evidence produced by the plaintiff showed that the township had always exercised control and supervision over the highway at this point and that the county had not. The burden was on appellant to show that it was the duty of the county to maintain guard rails at the point of the accident, but instead of so doing she proved herself out of court by establishing the fact that it was the duty of the township, if any such duty rested on it, to protect the highway by maintaining proper guard rails there. It would have been the duty of the court to submit the question to the jury if there had been any evidence to show that the place where the accident occurred was part of the approach to the county bridge, but there was no such evidence, and the court very properly directed judgment of nonsuit to be entered.

Judgment affirmed.


author: Mr. Justice Stewart,

text:
    Witmer v. Delone, Appellant.

      Will — Devise—Fee simple estate — Power of disposition.

    1. A devise, generally or indefinitely, with power of disposition, carries a fee.
    2. Testatrix devised the residue of her estate to her sister-, and further directed: “It is my wish however, that if the whole or any part of my estate should not be disposed of by my said sister during her lifetime, that at her death the same should be converted into money.” She also directed that this monejr should be divided among certain charities, Testatrix died within a calendar month from the date of the will. Held, that the sister took an estate in fee simple in the land.
    June 22, 1909:
    Argued May 20, 1909.
    Appeal, No. 163, Jan. T., 1909, by defendant, from judgment of C. P. York Co., Oct. T., 1907, No. 36, for plaintiff on case stated in suit of Barbara F. Witmer and Mary Grove, Administrators d. b. n. of the estate of Sarah J. Hostetter, deceased, v. Charles J. Delone.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine title to real estate. Before BitTENGER, P. J.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for plaintiff on case stated.

      Josiah W. Gitt and Allen C. Wiest, for appellant,
    cited: Brockey’s App., 4 Atl. Repr. 210; Presbyterian Board of Foreign Missions v. Culp, 151 Pa. 467; Martin v. Heckman, 25 Pa. Superior Ct. 451; Evans v. Smith, 166 Pa. 625.

      V. K. Keesey, with him C. E. Ehrehart and J. S. Black, for appellees,
    cited: Huber v. Hamilton, 211 Pa. 289; Jauretche v. Proctor, 48 Pa. 466; Evans v. Smith, 166 Pa. 625, Gilchrist v. Empfield, 194 Pa. 397.
   Opinion by

Mr. Justice Stewart,

The appeal is from a judgment entered on a case stated in which one of the questions submitted was, whether under the will of Mary C. Hostetter, her sister, Sarah J. Hostetter, acquired a fee simple estate in certain land sold by the latter’s legal representative to the defendant in the suit. The devise is as follows: “All the rest, residue and remainder of my estate, real, personal and mixed, of whatsoever kind and wheresoever situated at the time of my decease, I give, devise and bequeath unto my sister, Sarah J. Hostetter, to use and dispose of as she may think proper. It is my wish however, that if the whole or any part of my estate should not be disposed of by my said sister during her lifetime, that at her death the same should be converted into money.” A direction that this money should be divided between certain charities follows. The testatrix died within a calendar month from the date of the will, and it results, independently of any construction of the will, that the gifts to the charities must be disappointed. Whether in consequence Sarah J. Hostetter, if she were but a life tenant, would succeed by inheritance to the fee simple, need not be considered. Her fee simple estate in the land rests securely upon the written devise. Our cases all hold that a devise generally or indefinitely, with power of disposition, carries a fee. In the present case the will gives the land to Sarah J. Hostetter with absolute and unrestricted right to dispose of it in her lifetime. The gifts to charity were not to be paid out of any residuary estate of the testatrix, but out of such estate of the devisee, Sarah J. Hostetter, as remained at her death undisposed of; and hence the gifts are not to be considered as intended to reduce the fee simple devise. This is the doctrine so clearly expressed in Evans v. Smith, 166 Pa. 625, a case which cannot be distinguished from this in any essential feature. So close a precedent is rarely found. It rules this case, and makes further discussion of it unnecessary. Our later cases are to the same effect, among them, Gilchrist v. Empfield, 194 Pa. 397; Kennedy v. Pittsburg, etc., R. R. Co., 216 Pa. 575. The judgment as amended in No. 165, January Term, 1909, the next succeeding case, which is an appeal by the plaintiffs, is affirmed.


text:
    Witmer, Appellant, v. Delone.

      Vendor and vendee — Dispute as to title — Interest on purchase money.

    If the vendor of real estate cannot make title at the time appointed for the payment of the purchase money, and the vendee takes and retains possession, the latter must pay interest as a compensation for the profits he is receiving pending the determination of the question of title in the vendor's favor.

      June 22, 1909:
    Argued May 20, 1909.
    Appeal, No. 165, Jan. T., 1909, by plaintiffs, from judgment of C. P. York Co., Oct. T., 1907, No. 36, on verdict for plaintiffs on case stated in suit of Barbara F. Witmer and Mary Grove, Administrator d. b. n. of the Estate of Sarah J. Hostetter, deceased, v. Charles J. Delone.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Judgment modified.
    Case stated to determine title to real estate. Before BitTENGER, P. J.
    The facts are stated in the opinion of the Supreme Court and in the report of the case of Witmer v. Delone, ante, p. 448.
    The court entered the following judgment:
    And now, March 31, 1909, after due consideration, being of opinion that the administrators, d. b. n., can give and deliver to Charles J. Delone a fee simple title to the tract of land purchased by him, and described in the case stated; and that the defendant, Charles J. Delone, should not pay interest on the' purchase money from the second day of April, 1906, judgment is, according, entered on the case stated, for the plaintiffs, and against the defendant, Charles J. Delone, for the sum of $7,514.88, with costs of suit.

      Error assigned was the order of the court.

      V. K. Keesey, with him C. E. Ehrehart and J. S. Black, for appellants.
    The general rule is that when a purchaser of land goes into possession and continues undisturbed, he must pay interest, although the deed is not delivered at the time agreed on: Fasholt v. Reed, 16 S. & R. 266; Minard v. Beans, 64 Pa. 411; Hershey’s Est., 213 Pa. 601; Blair’s Est., 178 Pa. 582; Gurl’s Est., 2 Kulp, 521; Penna. Mining Co. v. Smith, 210 Pa. 49.

      J. W. Gitt, Jr., and Allen C. Wiest, for appellee,
    cited: Kelsey v. Murphy, 30 Pa. 340; Minard v. Beans, 64 Pa. 411; Mining Co. v. Jones, 108 Pa. 55.
   Opinion by

Mr. Justice Stewart,

The plaintiffs in the case stated, under consideration in No. 163 to the present term, are appellants here. At an orphans’ court sale of the real estate of Sarah J. Hostetter, deceased j September 26, 1905, the defendant became the purchaser. The sale thus made was duly confirmed by the court. Immediately upon the sale the defendant paid the required hand money, twenty-five per cent of the purchase price, and entered into possession. He retained possession until January, 1908, when he voluntarily abandoned the property. The terms of sale required payment of the balance of the purchase money April 2, 1906. On that day the plaintiffs tendered the defendant a deed for the premises and demanded payment. He refused to accept the deed, and refused to pay the balance of the purchase money or any part of it. On January 27,1908, he presented his petition to the orphans’ court, praying that the confirmation of sale be opened and annulled, unless the plaintiffs herein, who succeeded to the trust of the administrator who made the sale, would, through the submission of a case stated, have the title vested in Sarah J. Hostetter judicially determined to be a fee simple. The finding of the court was that the defendant had purchased under an agreement with the administrator that he should receive a fee simple title, and that a case stated would be submitted to the court for the purpose of determining the sufficiency of the title, before delivery of the deed and payment of the purchase money. The court deeming it equitable that this agreement should be performed, directed that a case stated be entered into and filed in the proper court for the determination of the question of title. Agreeably to his order the parties, plaintiffs and defendant, entered this action. We have thus recited all the facts which are set out in the case stated. It is only necessary to add that judgment was rendered on the case stated in favor of the plaintiffs, thus sustaining the title, which judgment on defendant’s appeal therefrom we have just affirmed. One question submitted was, whether the defendant, in case the title was adjudged sufficient, would be liable for interest on the unpaid purchase money from April 2,1906, the date when by the terms of sale it became due and deed was tendered. The learned judge held that the effect of the agreement on part of the administrator to postpone the payment of balance of purchase money until the sufficiency of the title had been established, was to release the purchaser from liability for interest meanwhile. In this conclusion we cannot concur. Here was a delay of nearly two years, during all of which time the defendant was in possession of the property, deriving whatever income it yielded; and he was in possession of the purchase money as well. It would be an unusual case that would justify any such exclusive appropriation of benefits by a vendee. Ordinarily interest is not demandable until money is due. By the terms of sale this purchase money was overdue after April 2, 1906. The agreement on the part of the administrator not to demand it until the question of title had been settled, did not make it any the less overdue. “There is a class of cases,” says Thompson, P. J., in Minard v. Beans, 64 Pa. 411, “where interest is always charged on money due, although' not payable, by a vendee. For instance, where the purchase money is payable at a certain time, and the deed is to be made at the same time. If the vendor cannot make title at the time appointed for the payment of the purchase money, and the vendee retains possession, he must pay interest as a compensation for the profits he is receiving during the vendor’s inability to make title. It would be grossly inequitable, that the vendee should hold both land and money and compensate for neither. These and kindred circumstances raise an obligation to pay interest, although the purchase money is not recoverable.” The present case so clearly falls within the class of cases here referred to, that nothing need be said further on the general proposition. The case stated exhibits no facts from which any equity can arise to avail the defendant. It in no way accounts for or explains the delay in bringing the question in regard to the sufficiency of the title to a determination. For all that we are permitted to know it may have been default on part of the defendant. This much is certain, the action he finally took January 27, 1908, asking that the confirmation of sale be annulled, and which resulted in an order for the case stated, could just as well have been taken immediately upon the tender of the deed. It is enough to know that plaintiffs stand clear of all charge of bad faith in connection with the matter. It does not appear that they ever refused a demand to enter into a case stated or delayed the proceeding in any way, or did anything that would estop them from asserting their present claim. We see nothing in the case that can operate to release the defendant from liability for interest. The judgment entered by the court was for the unpaid balance of the principal, to wit, $7,514.88. We now amend the judgment so that it shall be for the above sum with interest from April 7, 1906; and as-so amended the judgment is affirmed, the costs of this appeal to be paid by the appellee.