text:
    Hoskins, Appellant, v. Somerset Coal Company.

      Malicious prosecution — False imprisonment — Contempt proceedings— Collateral attack on judgment.

    In an action to recover damages for false imprisonment in contempt proceedings, a nonsuit is properly entered, because the decree of the court in contempt proceedings is not subject to collateral attack.
    A sentence for contempt is not essentially different from any other judgment, decree or sentence. It is a matter adjudicated, and it belongs to the very essence of governmental order that it cannot be reviewed except by the court that pronounced it, or by its official superior.
    Where a person has been adjudicated in contempt, but the court has discharged him on payment of costs only, he cannot maintain an action of malicious prosecution against the petitioner in the contempt proceedings on the theory that the discharge was the result of a failure to make out a case against the plaintiff. Such order was really in effect a sentence to pay the costs following an adjudication that the plaintiff was in contempt.
    Argued Oct. 24, 1907.
    Appeal, No. 174, Oct. T., 1907, by plaintiff, from order of C. P. Somerset Co., Sept. T., 1905, No. 94, refusing to take off nonsuit in case of John W. Hoskins v. Somerset Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for false imprisonment.
    Before Galbreath, P. J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Alexander King, for appellant.
    To maintain the action all that was incumbent upon the plaintiff was to produce evidence of his arrest and imprisonment; that they were at the instance and in the suit of the defendant company, and that he was denied the right to go on bail to appear in court on return day of the attachment: McAleer v. Good, 216 Pa. 473; Ritter v. Ewing, 174 Pa. 341; Auer v. Mauser, 6 Pa. Superior Ct. 618.
    Courts of equity have jurisdiction or power to enforce its decrees only against parties to the suit: Com. v. Newton, 1 Grant, 453; Com. v. Reed, 59 Pa. 425, 428, 429; Grohmann v. Kirshman, 168 Pa. 189; Baker v. Moore, 29 Pa. Superior Ct. 301.
    While a conviction of guilt and a sentence for contempt is a judgment of the court, there is no record of that kind in this equity case. On the contrary, the order of the court is a discharge of the prisoner: Doyle v. Com., 107 Pa. 20.

      W. H. Koontz and W. H. Ruppel, with them J. G. Ogle and Chas. F. Uhl, Jr., for appellee.
    The matter of contempt having- been determined by a court of competent jurisdiction, cannot be inquired into by another court: Doyle v. Commonwealth, 107 Pa. 20; Com. v. Newcomet, 18 Pa. Superior Ct. 508; Com. ex rel. Smith v. Butler, 19 Pa. Superior Ct. 626.
    January 6, 1908:
   Opinion by

Mr. Justice Fell,

This was an action to recover damages for false imprisonment. From the record of the common pleas, offered in evidence by the plaintiff, it appeared that an injunction had been issued by the court restraining the defendants named in the bill, and all other persons, from the time when they should have knowledge of the injunction from interfering with the works and the employees' of the Somerset Coal Company, the defendant in this action. Upon petition supported by affidavits that the plaintiff and others, with a full knowledge of the injunction, had intentionally and defiantly violated it, a rule was granted to show cause why they should not be attached for contempt. After a hearing at which the plaintiff was present, and while the case was pending and undetermined, a second petition was presented to the court in which it was alleged that the plaintiff had further violated tbe injunction. On this petition an attachment was issued, and the plaintiff was arrested by the sheriff and confined in the county jail. On the return day of the writ he was given a hearing, and it was found that he had violated the injunction and was in contempt. The order made was : “ We do not now impose upon the said John Hoskins any fine but direct that upon the payment of the' costs he be discharged from the custody of the sheriff.”

A nonsuit was entered for the reasons, among others, that the decree of the court in the contempt proceedings was binding on a court of co-ordinate jurisdiction. In Williamson’s Case, 26 Pa. 9, it was said : “ A sentence for contempt is not essentially different from any other judgment, decree or sentence. It is a matter adjudicated, and it belongs to the very essence of governmental order that it cannot be reviewed except by the court that pronounced it, or by its official superior.” In Doyle v. Commonwealth ex rel. Davis, 107 Pa. 20, the relator was discharged by one court of common pleas from arrest under an attachment issued by another court. It was said in the opinion: “ It is very evident that this is substantially a review and reversal of the judgment on which the writ of attachment was based, and the question is whether one court can modify or set aside the judgment of another court of coordinate jurisdiction. If it can, the most deplorable consequences would likely ensue ; we have no hesitation in saying that no such power exists.” The order of the court discharging the plaintiff on payment of costs was not, as argued, a discharge because of the failure to make out a case against him; it was in effect a sentence to pay the costs following an adjudication that he was in contempt.

The judgment is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Mitchell,

license: Public Domain

text:
    Kimmel v. Shaffer, Appellant.

      Ejectment — Proceedings to settle title to land — Possession—Act of June 10, 1893, P. L. 415 — Issue—Parties.
    The Act of Juno 10, 1893, P. L. 415, was intended to settle title to land as well as possession, and the requirement of sec. 2 as to the petitioner is that he shall be in possession of the land “claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession shall be disputed,” etc. It is not merely the petitioner’s possession which must be disputed and which he may defend under the acts but the title by which his possession is held. A claim of respondent to a contingent right upon the death of the life tenant, who is averred to be a person different from the petitioner although it refers to the future, is still a present dispute of the title by which the petitioner holds possession, and is therefore within the act.

      In an issue framed under the Act of June 10,1893, P. L. 415, the better practice is to make the petitioner the defendant in the issue, but it is not ground, to reverse the judgment because the respondent was made the defendant. The issue both as to substance and form is under the entire control of the court, to be moulded to fit the requirements of the real controversy between the parties.

      Deed — Fee tail special — Fee simple estate — Heirs of the body.

    Where the premises of a deed recite the deed as made between the grantor and his wife and the grantee and his wife “ for their natural lives, and afterward to the heirs begotten from their bodies in fee simple,” and the grant is “unto the said parties of the second part, their heirs and assigns,” the deed will be construed as conveying a fee tail special which the statute converts into a fee simple.
    Argued Oct. 24, 1907.
    Appeal, No. 6, Oct. T., 1907, by defendant, from judgment of C. P. Somerset Co., May T., 1904, No. 360, on verdict for plaintiff in case of Abbie Kimmel v. Clara K. Shaffer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Affirmed.
    Petition for an issue to settle title to land under Act of June 10, 1893, P. L. 415.
    The petition of Abbie Kimmel represented that she is the owner and has title in fee simple to a tract of land in Quemahoning and Stony creek townships, containing eighty-seven and three-quarters acres, being the same tract. conveyed to petitioner by Valentine Hay and wife by deed dated February 20, 1894. That she resides upon and has possession of the whole of said tract of land. That David A. Lambert and wife conveyed to Joseph and Eliza Keefer and their certain heirs, by deed dated May 18, 1877, and under the rule in Shelley’s case, and under the act of 1855, vested in said Joseph and Eliza Keefer title in fee simple, and they conveyed to Yalentine Hay.
    That Clara K. Shaffer claims a .right or title to said tract of land under the deed to Joseph and Eliza Keefer aforesaid as one of the children of said Joseph and Eliza Keefer. That petitioner had made a sale of the coal on said land and Clara K. Shaffer served notice of her claim on the purchaser, and praying the court to grant a rule upon said Clara K. Shaffer to show cause why an issue shall not be framed to settle and determine their respective rights and title to said land.

      Clara K. Shaffer by answer admitted the title to the premises in dispute was vested in David Lambert, recited the deed of David Lambert above, quoting therefrom, and averred that Eliza Keefer died on May 29, 1899, leaving to survive her a husband, the said Joseph Keefer, who is still living, and the following heirs : (1) Austin Denison, (2) Mary Jane Friodline, (3) your respondent, Clara K. Shaffer, (4) the petitioner, Abbie Kimmel. And the said Austin Denison and Mary Jane Friedline are not children of the said Joseph Keefer, and averring that the deed from David Lambert to Eliza and Joseph Keefer vested in them a life estate, and at the death of both of the life tenants an estate in fee simple in Abbie Kimmel and Clara K.' Shaffer, and denying that the court had any right to make an order compelling respondent to institute an action of ejectment before the death of said Joseph Keefer.
    The deed in dispute was as follows :
    “ This Indenture, made the 18th day of May, in the year of Our Lord One Thousand Eight Hundred and Seventy-seven, between David Lambert and Ann Mariah Lambert, his wife, of Stonycreek Township, Somerset County, and State of Pennsylvania, of the first part, and Eliza Keifer and Joseph Keifer, her husband, of Quemahoning Township, county and State aforesaid, for their natural lives, and afterward to the heirs begotten from the bodies of said Eliza Keifer and Joseph Keifer, her husband, in fee simple, of the second part.
    “ Witnesseth : That the said parties of the first part, for and in consideration of the sum of Eight Hundred ($800) Dollars, etc., do grant, bargain, sell, etc., unto the said parties of the second part, their heirs and assigns, all the following described piece of land, etc.
    “ Acknowledged 18th May, 1877. Recorded 21st December, 1900. Deed Book, Vol. 108, page 299.”

      W. H. Ruppel, with him F. W. Beisecker and L. C. Colborn, for appellant.
    The court had no right to frame the issue: Stamey v. Barkley, 211 Pa. 313; Smith v. Hibbs, 213 Pa. 202; Canal Co. v. Genet, 169 Pa. 343; Light & Heat Co. v. Rentz, 29 Pa. C. C. Rep. 78; McGarry v. McGarry, 9 Pa. Superior Ct. 71; Britton v. Posey, 29 Pa. C. C. Rep. 668; Ullom v. Hughes, 204 Pa. 305; Fearl v. Johnstown, 216 Pa. 205; Alles v. Lyon, 216 Pa. 604.
    Eliza and Joseph Keefer took a life estate: Findlay v. Riddle, 3 Binn. 139; Price v. Taylor, 28 Pa. 95; Guthrie’s App., 37 Pa. 9; Tyler v. Moore, 42 Pa. 374; Means v. Presbyterian Church, 3 V. & S. 303; Huss v. Stephens, 51 Pa. 282; Yarnall’s App., 70 Pa. 335; Robbins v. Quinliven, 79 Pa. 333; Warn v. Brown, 102 Pa. 347; Criswell v. Grumbling, 107 Pa. 408; Bedford Lodge v. Lentz, 194 Pa. 399; Kuntzleman’s Est., 136 Pa. 142; McCann v. McCann, 197 Pa. 452; Jones v. Bower, 20 Pa. C. C. Rep. 95; Jones v. Jones, 201 Pa. 548; Bacon’s Est., 202 Pa. 535; Ackerman v. Ackerman, 32 Pa. C. C. Rep. 353.

      Ernest O. Kooser, with him Valentine Hay and A. L. G. Hay, for appellee.
    The right of the court to frame an issue under the act of June 10, 1893, to try the title of one who claims a remainder without the right of immediate possession, has been affirmatively decided in Smith v. Hibbs, 213 Pa. 202.
    ' The right of the court to determine the form of the issue, which includes the arrangement of the parties, is expressly provided by the act.
    The terms of the deed, as affected by the rule in Shelley’s case, are the technical words employed to create an estate tail; which the act of 1855 enlarges into an estate in fee simple: Schrecongost v. West, 210 Pa. 7.
    January 6, 1908:
   Opinion by

Mr. Chief Justice Mitchell,

The Act of June 10, 1893, P. L. 415, was intended to settle title to land as well as possession, and the requirement of sec. 2 as to the petitioner is that he shall be in possession of the land “ claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession shall be disputed,” etc. It is not merely the petitioner’s possession which must be disputed and which he may defend under the act, but the title by which his possession is held. The argument of appellant is that the plaintiff’s present right of possession and her possession in fact are not disputed, the appellant’s claim being only to a contingent right upon the death of Keefer whom she avers to be the life tenant. But this though it refers to the future is still a present dispute of the title by which the plaintiff holds possession and is, therefore, within the act. “ What the party in possession needs and what the act gives him is the right to a present adjudication of his title:” Canal Co. v. Genet, 169 Pa. 343.

The very point was decided in Stamey v. Barkley, 211 Pa. 313, where the petitioner’s present right of possession was not disputed, but the adverse right set up was of a contract to purchase at a future time, and the contest was on one hand to remove the cloud on petitioner’s title and on the other to maintain it.

And the same point was again decided in Smith v. Hibbs, 213 Pa. 202, where a remainder-man making no claim to present possession, but duly served along with the life tenant, was held to be barred by the proceeding.

A second objection by appellant is that the petitioner in possession was made the plaintiff in the issue. But it does not appear how this did any harm to appellant. In general the better practice is to make the petitioner the defendant in analogy to ejectment where the party in possession is not called on to disclose his title until he knows by whom and on what grounds it is attacked. But as said in Üllom v. Hughes, 201 Pa. 305, the issue both as to substance and form is under the entire control of the court, to bo molded to fit the requirements of the real controversy between the parties. It may well be as argued by appellant that some cases will be found to present difficulties in the application of the statute, but these are not likely to be insuperable. It is a remedial act with great elasticity under the control of the courts and the increasing resort to it shows the general judgment of the profession that it is effective as well as convenient. It should be construed and applied in furtherance of this view.

The deed from Lambert and wife to Eliza and Joseph Keefer, assuming it to be read as the parties here and the court below read it, clearly conveyed a fee tail special which the statute converted into a fee simple. The only doubt about it might be whether the heirs of the body of the Keefers are properly to be included among the parties of the second part. They are only mentioned in the premises to the deed while the operative words of the grant and the habendum are to “ the parties of the second part, their heirs and assigns.” But notwithstanding the inartificial form the intent of the deed seems to be as the court held.

Judgment affirmed:


author: Mr. Justice Stewart,

text:
    Somerset Colliery Company v. John, Appellant.

      Mortgage — Set-off—Parol agreement — Evidence—Unliquidated damages.

    On the trial of a scire facias on a mortgage, the defendant may show by parol evidence that at the time when the mortgage was given, certain claims of the defendant against the mortgagee were in existence, and that it was agreed between the parties that such claims should be adjusted when the mortgage should fall due and in connection with its payment.
    Liquidated claims may properly be used by way of set-off under the defalcation act; unliquidated claims can be so used only as an agreement to this effect be shown.
    It is error to reject an offer of set-off in either case on the ground that such offer tends to contradict or change by parol the written instrument.
    Argued Oct. 25, 1907.
    Appeal, No. 105, Oct. T., 1907, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1905, No. 18, on verdict for plaintiff in case of Somerset Colliery Company v. A. F. John.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Scire facias sur mortgage.
    At the trial the whole of defendant’s case was as follows :
    Mr. Ruppel: I offer the agreement between A. F. John, of the first part, and John A. Clark and William A. Somerville, of the second part, dated August 28, 1901.
    We shall follow this by proof of another agreement of the same date between the same parties, relating to the same subject-matter, by which it was provided that the lessors, Clark and Somerville, or their successors to the lease, shall erect a mining plant or other improvements in connection with the mines at a cost of at least $8,000, and, in case of failure, to pay said A. F. John the said sum of $8,000.
    To be followed by proof that at the time the mortgage was given it was agreed between the parties that the question of damages to the mine under this lease and the question of payment of the $8,000 under the agreement between the same parties, should be adjusted between the parties when the payments of the mortgage fell due, and that at the time the mortgage was given the question of damages to the mine and the claim of John for $8,000 for failure to erect the mining plant, or mining improvements provided for, were discussed, and it was agreed between them that the matter should be left open till the payment of the mortgage fell due, and the matters then adjusted between the parties in connection with the payment — this agreement being in parol.
    Mr. Kooser: These offers of evidence are objected to as irrelevant, immaterial and incompetent; all matters arising under the lease or agreement offered are closed by the sale and mortgage in suit; it is not competent to prove by parol any such purpose as evidence — any matters to alter or contradict the written instrument.
    The agreement is further objected to for the reason that copies have not been furnished with the pleadings, as required by rule of court.
    Mr. Ruppel: In reply we wish to state that an affidavit of defense was filed and copies of the agreement given with it. Notice of special matter was filed and the agreements referred to and the statement made: “ A copy of said agreements, marked exhibit £ A ’ and exhibit £ B,’ is attached to said affidavit of defense, and is also in possession of the plaintiff.”
    The Court: The objection is sustained on the ground that the proposed oral testimony tends to contradict or change the written instrument upon which the plaintiff relies.
    Mr. Ruppel: Your honor, we move to amend the pleadings and give copies of the agreement.
    The Court: Very well, you may file the copies.
    Mr. Ruppel: We now renew our offer.
    Mr. Kooser : We renew the same objection.
    The Court: And we renew the same ruling, and note an exception and seal a bill as to both parties.
    Mr. Ruppel: We have nothing further, your honor.
    Verdict and judgment for plaintiff for $21,296.62. Defendant appealed.

      Error assigned was ruling on evidence, quoting the whole of the defendant’s case.

      W. H. Ruppel and W. H. Koontz, with them J. G. Ogle, for appellant.
    The set-off sought to be introduced here consists of two items : 1. That of unliquidated damages resulting from negligent mining. 2. The amount stipulated to be paid in case of failure to erect the improvements, $8,000.
    In the absence of a contract the claim for unliquidated damages could not be used as a set-off: Kelley v. Tibbals, 53 Pa. 408; Hopkins v. Stockdale, 117 Pa. 365; Philadelphia v. O’Conner, 23 Pa. C. C. Rep. 653.
    As to the $8,000 claim it may be argued that under the defalcation act it was the duty of the defendant to raise that question in this proceeding, or else be barred from setting up a subsequent claim therefor; or, being an equity which the defendant could make use of, that he would have the right, independent of the question of contract, to use it as a set-off in this action: Leitz v. Hohman, 207 Pa. 289. But in any event there was nothing to show, and no allegation even made, that the defendant had released his rights or claims as to either of these items, and by agreement between the parties it was perfectly legitimate to refer the matter for adjustment in connection with the collection of the mortgage. The mortgagees were nonresidents of the county. To settle the disputed question in connection with the payment of the mortgage would have insured the defendant against any possible hardship or inconvenience of seeking the mortgagors in another, forum. Again, in the absence of a special agreement it might be argued, as was done in this case in the objection to the offer, that all matters between the parties relating to this subject-matter were merged in the mortgage. This, however, would be a mere presumption or inference, which can be rebutted by oral testimony.

      Ernest O. Kooser, with him Dickson, Beitler & McCouch, for appellee.
    A written agreement contains all the prior or contemporaneous negotiations and agreements of the parties with reference to the subject-matter thereof, as said by Mr. Justice Brown in Krueger v. Nicola, 205 Pa. 38: Kaufmann v. Friday, 201 Pa. 178; Stewart v. Gas Coal Co., 207 Pa. 220; Hatfield v. Thomas Iron Co., 208 Pa. 478; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320.
    The conveyance by deed in pursuance of agreement raises a strong presumption of satisfaction of all previous covenants. To rebut this presumption the contrary intention of both parties must be clear and manifest: Seitzinger v. Weaver, 1 Rawle, 377.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

This was a proceeding by scire facias on a mortgage. On the trial defendant offered to set off against plaintiff’s demand two distinct claims held in his own right against the mortgagee. Part of the offer was to show that at the time the mortgage was given, these claims being then in existence, it was agreed between the parties that they should be adjusted when the mortgage fell due and in connection with its payment. The offer was rejected on the ground that it tended to contradict or change by parol the written instrument on which the plaintiff relied. This was a misapplication of the rule. In no sense would the evidence under the offer contradict or vary the terms of the mortgage. If the claims embraced in the offer were such as could be properly used by way of set-off under our defalcation act, the agreement between the parties that they might be so used, was of no consequence whatever. The question was, were they such claims ? If they were, the evidence supporting them should have been admitted, leaving it to the jury to decide as to its sufficiency, under proper instructions. Mortgages are not excepted out of the general defalcation act, and they may be reduced by way of set-off just as other evidences of indebtedness. Defendant’s offer was to prove two distinct claims by way of set-off, first, a liquidated indebtedness of $8,000 arising on written articles of agreement by which the appellee became bound to pay to the appellant this specific sum upon a certain default, which appellant proposed to prove had occurred ; and second, a claim for unliquidated damages for failure on part of appellant to operate certain leased coal mines according to the terms of its agreement. With respect to the first, defendant’s right to set it off, providing his proof be adequate and the claim a liquidated one, is not open to doubt. This right he would have under the statute. The second being a claim for unliquidated damages, and therefore not of equal dignity with the mortgage, his right of set-off with respect to it, if any such right exists, must be derived from the agreement he alleges with respect to it. The law denies the right of set-off where the claim is for damages arising ex contractu, and the damages are not capable of liquidation by any known legal standard. “ A debt or the damages which can be set off as an independent counterclaim must be such as a jury can find and liquidate in the ordinary way just as if the defendant were a plaintiff suing in debt, assumpsit or covenant:” Russell v. Miller, 54 Pa. 154.

Our cases are quite consistent, however, in holding that even such claims may be applied as a credit or set-off where the parties have so agreed. It is only necessary to refer to Hopkins v. Stockdale, 117 Pa. 365. The only assignment of error relates to the rejection of defendant’s offer, and it is sustained.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Potter,

text:
    Henderson, Appellant, v. Continental Refining Company.

      Negligence — Infant—Dangerous machine — Vacant lot — Permissive use of lot — Playground for children — Parents' duty.

    A corporation owned a vacant lot which the children of the neighborhood had been permitted to use as a playground. The lot was level with a road and was not fenced in. On the lot were two houses occupied by tenants of the company. The side door and porch of one house opened directly upon the lot, and opposite to this door was a gate entering the yard of another house. Between the door and the gate there had been a path. Near the path the company placed pumping machinery with revolving cogwheels. A boy seven years old went to call upon a friend at the house where the gate opened into the lot. Not finding his friend at home he passed through the gate into the lot, and in some way not explained was caught in the pumping machinery and killed. The evidence showed that the machinery was not inclosed or guarded, and that it was dangerous for anyone to come in contact with it while in motion. Held, in an action by the parents of the boy against the corporation owning the lot, that the case was for the jury, and that it was error to enter a nonsuit.
    Parents cannot be held guilty of contributory negligence, as a matter of law, merely because they allow a seven year old boy to go around by himself upon the streets in the vicinity of his home, or to visit a neighbor’s house. At most the question would be for the jury.
    Argued Oct. 25, 1907.
    Appeal, No. 156, Oct. T., 1906, by plaintiffs, from order of C. P. Venango Co., Nov. T., 1903, No. 31, refusing to take off nonsuit in case of Harry A. Henderson and Haney Henderson, his wife, v. Continental Refining Company, Limited.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiffs’ son.
    Before Criswell, P. J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      Peter M. Speer, with him John M. McGill, for appellants.
    Where one has reason to apprehend danger from the peculiar situation of his property and openness to accident, the rule that where no duty is owed no liability will arise will not prevail; but the question of liability must be submitted to the jury, to be determined upon all the facts of the case: Schilling v. Abernethy, 112 Pa. 437; Rachmel v. Clark, 205 Pa. 314; Duffy v. Sable Iron Works, 210 Pa. 326; Gramlich v. Wurst, 86 Pa. 74.

      William J. Breene, with him Edmond C. Breene, for appellees.
    The appellee was not obliged to foresee under the circumstances of the case that the decedent might attempt to ride upon the power while in motion and be injured in so doing: Hestonville Passenger Ry. Co. v. Connell, 88 Pa. 520; Gramlich v. Wurst, 86 Pa. 74; Gillespie v. McGowan, 100 Pa. 114; Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321; Rodgers v. Lees, 140 Pa. 475; Horstick v. Dunkle, 145 Pa. 220; Feehan v. Dobson, 10 Pa. Superior Ct. 6; Widger v. Phila., 217 Pa. 161; Daniels v. R. R. Co., 154 Mass. 349 (28 N. E. Repr. 283); McEachern v. R. R. Co., 150 Mass. 515 (23 N. E. Repr. 231); Frost v. R. R. Co., 54 N. H. 220 (9 Atl. Repr. 790).
    It cannot be said that legally the decedent was on the premises as an invitee of the defendant company. Granting for illustration only, all of the contention of the appellants in this connection, the decedent was upon the premises by sufferance and only as a mere licensee: Turess v. R. R. Co., 71 N. J. L. 314 (40 Atl. Repr. 614); Beehler v. Daniels, 29 Atl. Repr. 6; Plummer v. Dill, 31 N. E. Repr. 128; Moffat v. Kenney, 54 N. E. Repr. 850; Alabama G. S. Ry. Co. v. Hall, 17 So. Repr. 176.
    A parent owes a reasonable duty of protection to his children, and cannot cast the whole of that duty upon strangers. If he permits them when of tender years, to wander off in places of known danger, and by reason thereof an accident occurs to them, he has no just claim to make others bear the consequences of his own neglect: Westerberg v. Ry. Co., 142 Pa. 471; Glassey v. Ry. Co., 57 Pa. 172; Del Rossi v. Cooney, 208 Pa. 233.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

The only question presented for review by this appeal is whether the learned trial judge erred in refusing to take off the judgment of compulsory nonsuit entered by him at the close of the plaintiffs’ evidence, upon the trial of this case. The injury for which damages are claimed was the death of a- boy seven years of age, caused, as is alleged, by the negligence of the defendant company in failing to cover or guard a piece of pumping machinerj7, located upon a vacant lot adjacent to the highway. It is apparent from the description of the pumping machinery, with its revolving cogwheels and attachments, that it would be dangerous for anyone to come in contact with it while in motion, and there is testimony in the case that it is customary to guard or cover similar machines. The defendant company owns and operates an oil refinery, near Oil City, on the westerly side of a public road. It also owns land on the easterly side of the same road, upon which are located two houses belonging to the company and occupied by its tenants. These houses front upon the road, and are separated by vacant ground some forty or fifty feet in width, also belonging to the defendant. The side door and porch of the southerly house opens directly upon the vacant lot, and opposite to it is a gate entering the yard of the northerly house. Between this door and gate there was formerly a path which was used to pass from one house to the other. The vacant lot extended westwardly to the road and eastwardly to Oil Creek. It was level with the road and was not fenced in. It appears from the testimony that the lot was used for a common, and the children of the neighborhood had used it as a playground. Plaintiffs, who are the parents of the boy who was killed, at one time lived in the southerly house, but moved elsewhere some time before the accident. About July 1, 1903, the defendant company placed upon this vacant lot the pumping machinery in question, and located it at a point midway between the two houses, and on the path connecting them, or very close to it. Between the road and the pump, about twenty or twenty-five feet from the latter, was a gas engine used to operate it, and connected with it by a belt.

On July 29, 1903, about four o’clock in the, afternoon, the seven-year old son of plaintiffs went to the house north of the lot where the pumping machinery, generally called the power, was located as described, seeking a playmate who lived there. He went in the front way from the road, saw his friend’s father, who told him his son wras not at home, and' then passed out by the side gate into the lot. He was seen a few minutes later standing a few feet from the power, looking at it. In some way which is unexplained, as no one saw him at the moment of the accident, he was caught in the machinery, carried around and thrown down upon the ground. One of his legs was so badly injured as to make amputation necessary, and he died the same night from the shock and loss of blood.

The trial judge seems to have been impressed with the idea that the boy climbed upon the machinery, for the sake of having a ride upon the revolving power, but we do not find anything in the evidence to indicate that such was the fact. At most it was but an inference, and as such it was for the jury to draw. No one saw the boy climb upon the machine. Just before the accident he was seen standing near the power; when next seen he was falling to the ground. How he became involved in the machinery, whether by climbing upon it or by standing too near, is only a matter of inference. The age of the boy precluded his being held guilty of contributory negligence as matter of law by the court. Whether or not he exercised, under the circumstances, the degree of care commensurate with his age, was for the jury.

We do not think the facts in this case, bring it within the line of the decisions in which it is held that the landowner owes no duty of protection to those who may be upon the premises. Under the circumstances it can hardly be said that the child was where he had no right to be. The entire tract of land, including the two houses, and the ground between them, belonged to the defendant company. As has already been noted, one of the houses was built with a side door and porch opening directly upon the vacant lot, and from the other house, a gate placed in the fence opened from that side directly into the lot. The door provided upon one side and the gate upon the other, certainly was sufficient to indicate to tenants in the houses, to their families and guests, an implied permission, or invitation, to enter upon and cross the vacant lot. As a matter of fact under this permission it was used for years to such an extent that a path was worn across the lot between the two houses. The lot was also permitted to be used as a playground for the children of the tenants in the houses, and by other children. After permitting this use of the property for several years, the defendant company, according to the testimony, erected this dangerous piece of machinery right upon, or close to, the pathway between the two houses. It did not inclose or guard the machinery, nor did it shut up the door or the gate leading from the houses to the lot. It seems to have done nothing to give notice that the permissive use of its land as a passageway and playground was to be discontinued. Upon the day of the accident, plaintiff’s son went to the home of the tenant living in the northern house, upon a lawful errand, to see a member of the family. On leaving, he passed through the side gate onto the lot; the existence of the gate being apparently an invitation to him to go out in that way. His attention would be naturally attracted to the curious machinery located on or near the path and but a few feet away. A fair inference is, that heedlessly, or without appreciating the danger, the child ventured too near, and was injured. Under these circumstances, he cannot fairly be regarded as a mere trespasser. The lot was really an appurtenance to the two houses, and was a part of the curtilage. It was not only so used by the occupants of the houses, and their visitors, but it was expected that it should be so used, because of the arrangements made to enter upon it from the sides of the houses. The language which counsel for defendant company cite as defining the term “ invitation ” seems to fit very closely the facts of this case so that the inference may well be drawn that the child “ entered the premises because he was led to believe that they were intended to be used by visitors, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the place was adapted and prepared or allowed to be used.” In Kay v. Penna. R. R. Co., 65 Pa. 269, Justice Agnew said : “ Duties grow out of circumstances, the authorities tell us, and that which in one case would be an ordinary and proper use of one’s rights may, by a change of circumstances, become negligence and a want of due care. ... If, therefore, an owner of property has been accustomed to allow to others a permissive use of it, such as tends to produce a confident belief that the use will not be objected to, and therefore to act on the belief accordingly, he must be held to exercise his rights in view of the circumstances so as not to mislead others to their injury, without a proper warning of his intention to recall his permission.”

As to the suggestion that the parents were guilty of contributory negligence, they could not be so held as matter of law, merely because they allowed a seven-year old boy to go around by himself upon the streets in the vicinity of his home, or to visit a neighbor’s house. At most the question would be for the jury: Enright v. Pittsburg Junction R. R. Co., 204 Pa. 543. The same may be said as to the contention that the parents were negligent in not warning the boy to keep away from the machinery. It was not so clear a duty that the court could declare it as a matter of law: Herron v. Pittsburg, 204 Pa. 509.

■ We are of the opinion that under every aspect of this case, it should have been, under proper instructions, submitted to the jury. ■ ,

" The judgment is reversed with a procedendo..


author: Mr. Justice Mestrezat,

text:
    Osmer v. Sheasley, Appellant.

      Tax-sale — Acknowledgment of deed in open court — -Minutes of court— Evidence-Notice — Act of March 13, 1815, 6 Sm. L. 299.
    A deed from'a county treasurer for land sold at a tax sale is not valid to pass the title without acknowledgment in open court and a record of the acknowledgment in the minutes of the court; and the minutes of the court-are the only-proper evidence of the acknowledgment.
    . Where there is no record of the acknowledgment of a tax deed in the minutes of the court, the fact that a purchaser from the former owner or his successor in title had actual notice of an acknowledgment in open court, is not sufficient to affect his title; inasmuch as a notice of an invalid or worthless title will not affect a title subsequently acquired by a purchaser for value.
    Argued Oct. 25, 1907.
    Appeal, No. 28, Oct. T., 1907, by defendants, from judgment of C. P. Venango Co., Nov. T., 1905, No. 25, on verdict for plaintiff in case of Archibald R. Osmer v. Charles H. Sheasley et al.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Ejectment for land in Sandycreek township.
    Before Crisswell, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for plaintiff: .
    Verdict and judgment for plaintiff. Defendants appealed.

      Error assigned was in giving binding instructions for plaintiff.

      Samuel S. Mehard, with him John L. Nesbit and James S. Carmichael, for appellants.
    Whatever else the plaintiff may be, he is not a purchaser, bona fide, for a valuable consideration without notice: Everhart v. Nesbitt, 182 Pa. 500; Rixstine’s Estate, 3 Pa. Dist. Rep. 227; Swank v. Phillips, 113 Pa. 482; Anderson v. Brinser, 129 Pa. 376; Hottenstein v. Lerch, 104 Pa. 454; Leonard’s Appeal, 94 Pa. 168; Jamison v. Dimock, 95 Pa. 52; Berryhill v. Kirchner, 96 Pa. 489; Thompson v. Christie, 138 Pa. 230.
    An unrecorded deed with possession taken thereunder and maintained, is sufficient notice to subsequent purchasers: Krider v. Lafferty, 1 Whart. 302; Harris v. Bell, 10 S. & R. 39; Hymen v. Gatta, 33 Pa. Superior Ct. 438.
    The purchaser of land at a treasurer’s sale has an inchoate title the moment the property is knocked down to him, which becomes perfect with the payment of the purchase money: Kunes v. McCloskey, 115 Pa. 461; Morrison v. Wurtz, 7 Watts, 437; Robb v. Mann, 11 Pa. 300; Stoever v. Rice, 3 Whart. 21; Duff v. Wynkoop, 74 Pa. 300; Lee v. Newland, 164 Pa. 360; Moorhead v. Pearce, 2 Yeates, 456; Bellas v. McCarty, 10 Watts, 13.

      Peter M. Speer and J. H. Osmer, with them N. F. Osmer, for appellee.
    Notice of an incumbrance, claim or right, void or unenforceable in law, is, of course, inoperative, and notice of an invalid conveyance cannot make it good as against a purchaser for value: Cuttle v. Brockway, 32 Pa. 45; Bugbee’s Appeal, 110 Pa. 331.
    It is the duty of the purchaser to see that his deed is acknowledged and registered, and of every purchaser of a tax title to examine the record of acknowledgments for himself: Lee v. Newland, 164 Pa. 360; Canole v. Allen, 28 Pa. Superior Ct. 244.
    January 6, 1908:
   Opinion by

Mr. Justice Mestrezat,

This is an action of ejectment to recover the undivided one-half of a certain tract of land, containing about seventy acres, situate in Sandycreek township, Yenango county.

On the trial of the cause the plaintiff shoived a complete paper title from the common-wealth to himself. It appears that the land in dispute with other lands was patented to George H. Bissell and others on April 10, 1860. In 1874 the undivided one-half of the seventy acre tract became vested in George H. Bissell, and the other undivided one-half in James Bishop and James A. Williamson. Williamson and Bishop were adjudicated bankrupts on February 16, 1875, and, after the death or resignation of other assignees, J. Q. Aymer Williamson was appointed assignee. By deed dated May 6, 1905, the assignee conveyed the interest of his assignors, being the undivided one-half of the seventy acres, to Archibald R. Osmer, the plaintiff. This deed was recorded in the recorder’s office of Yenango county on May 17, 1905.

Having shown on the trial of the cause his paper title to the premises in dispute, a part of which title we have just referred to, the plaintiff rested. The defendants claim to own the whole of the seventy acres of land under a tax title. It is conceded that Bissell, Williamson and Bishop owned the seventy acres of land in 1874, the latter two owning the undivided one half and Bissell the other undivided one half thereof. It is claimed that the taxes on the land were not paid for the years 1892 and 1893; that it was returned by the collector and duly sold by the treasurer of the county for the unpaid taxes of those years to one Philip Engelskirger on June 12, 1894, and that by intermediate conveyances Engelskirger’s title became vested in the defendants.

On the trial of the cause the defendants offered in evidence the deed from the treasurer to Engelskirger with an appended certificate of the prothonotary of the court that it was acknowledged in open court of common pleas of Yenango county on August 30, 1894; and in connection therewith offered the petition of Engelskirger and the treasurer, presented to the court in 1905, praying for the entering or registering of the acknowledgment of the deed in the proper place in the records of treasurer’s acknowledgments, and also the .order of the court indorsed on the petition directing the registration of the acknowledgment as prayed for. The offer of the deed was also accompanied by an offer to show that it had been recorded in the recorder’s office of Yenango county on August 28, 1905. The plaintiff’s counsel objected to the offer for the reasons, inter alia, that the offer of the certificate of the prothonotary of the acknowledgment of the deed is incompetent, immaterial and irrelevant; that according to the offer there was no record of the acknowledgment of the deed until after the title to the land had become vested in the plaintiff; and that the record as a subsequent record of the acknowledgment of the deed is immaterial and irrelevant and cannot affect the rights of the plaintiff in this case. Before the ruling on the offer the defendants’ counsel said: “ We further expect to show in this connection that the plaintiff has not only the knowledge that he decries for of the sale to Philip Engelskirger, but had received actual knowledge through the court of the claim of ownership by the defendants and the full extent of his ownership declared to him.”

The court rejected the offer, stating its reasons as follows : “Where a deed of conveyance is consummated, binding between the parties, and the only thing lacking to give it effect as to all parties is notice, either actual or constructive, then of course notice is vital and important, but where the conveyance for any reason is void and not binding upon the parties, then notice of it to other parties is wholly immaterial, it is not binding upon any one. This alleged treasurer’s sale appears to have been incomplete; no record of the acknowledgment of it Avas made in open court, such as is required. It is true that indorsed on the deed is a certificate of the fact that it was acknowledged in open court, but that is not a record, that is not a compliance Avith the act of assembly; the prothonotary either certified to an acknowledgment Avhich never took place or he failed to make a record of an acknowledgment which did take place, and in view of this fact Ave are of the opinion that the objection to the offer should be sustained; the offer is oArerruled.” This constitutes the first assignment of error.

The defendants then offered the treasurer’s deed to be followed by proof of the identity of the land, of actual notice of the treasurer’s sale by the plaintiff before his purchase from the assignee, proof that the defendants had been in actual and exclusive possession of the premises for more than five years prior to March 3, 1905 ; and of valuable improvements made by defendants on the premises.

The court, on objection by plaintiff, excluded the offer, saying : “ From the evidence already offered it may be inferred and assumed that Mr. Osmer had full knowledge in reference to the land of the defendants; that he knew of their possession of the premises and that he bought upon the strength of the title as it appeared by the records; if he had gone to the records, as we may assume he did, he would have found no completed treasurer’s sale of the land at the time of his purchase ; having purchased with a knowledge of the records as they then existed, we should not and we could not properly change the records so far as to correct the same or perfect the title of the defendants; we are of the opinion that the offer should be overruled and the objection thereto sustained.” This is the second assignment of error.

These rulings were fatal to the defendants’ case, and the court directed a verdict for the plaintiff. The defendants claim that the plaintiff is not a bona fide purchaser for a valuable consideration, without notice, such as is protected in his title, under the circumstances of this case; and that the treasurer’s deed, under the circumstances stated in the offer, will protect the purchaser or his assigns, against a subsequent purchaser from the party or his heirs, as whose land it was sold, with full actual notice. For these reasons the defendants claim that the court erred in directing a verdict for the plaintiff.

The sale of real estate for the payment of taxes is regulated by statute, which makes provision for the several steps necessary to be taken in passing a good title to the purchaser. He who claims real estate by virtue of a tax title must be able to point to a substantial compliance with all the essential requisites provided in the statute. Prior to the act of 1815, it was next to impossible to sustain a tax title if attacked in the courts. But that act came to the aid of the purchaser, and since then if the statutory prerequisites appear, including a deed duly acknowledged in open court, the purchaser can sustain his title.

The Act of April 3, 1794, 4 Sm. L. 201, 2 Pur. (12th ed.) 2057, provides that unseated land shall be sold for taxes upon warrant by the county commissioners directed to the sheriff or coroner of the proper county, commanding him to make sale of the land for the payment of taxes “ and to make and execute a deed or deeds, in fee simple, to the purchaser or purchasers of any unseated lands so sold, and the same in open court of common pleas of the proper county, duly to acknowledge.” The Act of April 4, 1809, 5 Sm. L. 73, 2 Purd. (12th ed.) 2058, amends the act of 1804 and provides that the powers vested in and duties enjoined on the sheriffs by the latter act shall be transferred to and performed by the county treasurers, under the same obligations and restrictions to which the sheriffs are by law subjected. The Act of March 13, 1815, 6 Sm. L. 299, 2 Purd. (12th ed.) 2056 et seq. is also amendatory of the act of April 3, 1804. It provides the manner in which the sales shall be made by.the county treasurers and authorizes them “ to make and execute a deed or deeds, in fee simple, in the manner directed by the act to which this is a further supplement.” The fourth section of this act contains a clause curing irregularities in the proceedings leading up to a tax sale. By section 41 of the Act of April 29, 1844, P. L. 486, 2 Purd. (12th ed.) 1994, “ seated lands shall be sold as unseated lands are now sold.”

By this legislation it will be seen that one of the essentials of a valid tax title is a deed to a purchaser executed by the treasurer and duly acknowledged by him “ in open court of common pleas of the proper county.” As said by Woodward, J., in Gault’s Appeal, 33 Pa. 94, 99: “A purchaser of unseated land, at a treasurer’s sale, acquires no rights .... until he obtains his deed.” And in Hoffman v. Bell, 61 Pa. 444, Sharswood, J., delivering the opinion, says (p. 451): “ It would have been entirely competent for the legislature to have declared that where unseated land is bid off by the commissioners at a treasurer’s sale, the title of the owner shall be ipso facto divested, and the land become the property of the county. But they have not seen proper to do so, and very wisely. They have expressly prescribed that there should be a deed.” It was unquestionably within the power of the legislature to have made any provision for transferring the title of the owner to the purchaser by a tax sale. It need not have required the execution of a deed and its acknowledgment before the court of common pleas. An acknowledgment before an officer authorized to take acknowledgments would have been equally effective if the statute had so directed. But for reasons which appealed to the legislature, it was thought best that the acknowledgment of the deed should be in open court and that thereby the sale should receive judicial sanction. In that way, the acknowledgment of the deed, conveying title to real estate, would be placed upon the records of the court. This would afford easy and absolute proof of the existence of the deed and the conveyance of the real estate to the purchaser. It would give the latter’s title judicial sanction as well as perpetually preserve the evidence of it. This enactment, requiring the acknowledgment of a treasurer’s deed to be in open court as a prerequisite to a valid tax title, has met the approval of the people of this commonwealth for more than a century. Its wisdom commends itself to lawyer and layman alike, and, while subsequent legislatures have amended the statute in many respects, they have never changed or altered this provision.

Section 4 of the act of March 13, 1815, gives the owner the right to redeem the land, sold for unpaid taxes, within two years after the sale by the payment of the amount of the taxes, the costs, and an additional sum of twenty-five per cent on the amount; and thereupon authorizes the owner to bring an action for the recovery of the land, provided he does so within five years after the sale. In order, therefore, that the owner shall have an opportunity to redeem his land within the time required by the statute, it is necessary that there be some official record made of its sale and conveyance to the purchaser. There is no legislation requiring the purchaser to record his deed in the recorder’s office of the county or any other way to make an official record of his purchase other than the acknowledgment of the deed by the treasurer in open court which necessitates the entry of the acknowledgment on the records of the court. The owner may know that all the necessary steps leading up to and including the sale have been taken as required by the statute, but without the further knowledge of the presentation of the deed to the court of common pleas and its acknowledgment in open court, he cannot know that there has been a sale and that his right to redeem the land has accrued. The purchaser’s title and right to possession are not complete until he obtains the deed. Hence the owner need take no action towards redeeming the land until he has knowledge of the execution and delivery of the deed. The only information as to the sale of his land for unpaid taxes of which he is bound to take notice is on the records of the court of common pleas of the county where the acknowledgment appears.

We think it clear, therefore, that it is a prerequisite of a valid tax title that the treasurer’s deed has been acknowledged in open court, and that until the purchaser obtains a deed for the land so acknowledged by the treasurer his title is fatally defective.

In the case in hand, the facts in regard to the execution, acknowledgment and delivery of the deed are not in dispute. The records of the common pleas, the only evidence admissible to show the acknowledgment of a treasurer’s deed, discloses no acknowledgment of the deed to Engelskirger until eleven years after the date of its execution, and some months after the execution and delivery of the deed by the assignee in bankruptcy conveying the land in dispute to the plaintiff. It will be observed that the defendants in their offer of a deed accompanied it by an offer to show the proceedings taken by them to have the acknowledgment of the deed registered in the proper place on the records of the common pleas. The order of the court, however, directing the amendment of the record, having been made after the as-title to the property had vested in the plaintiff, could not affect the latter’s rights therein, and that it was not intended to affect his rights appears by the order itself, which distinctly states that it is made without prejudice to existing rights of owners and intervening third parties.”

For the purposes of the argument we may admit, what the defendants allege, that the plaintiff had knowledge, prior to his purchase, of the defendants’ tax title. It is sufficient to say, however, and is a conclusive answer to the contention that such knowledge affected his title, that the only informahe acquired by such knowledge was that the defendants claimed under a title that is defective and void. It therefore did not prevent him, or any other person, from purchasing the title of the real owner. If the title held by the defendants had been valid, then a knowledge of that title by the plaintiff before his purchase from the assignee would unquestionably have prevented him from asserting his title against that of the defendants. The .plaintiff would then have occupied the position of a subsequent purchaser, taking the property with full notice of a valid and subsisting title in another, and, of course, would not have been a bona fide purchaser for value without notice. The distinction, however, which the defendants fail to note, and which is fatal to their contention, is that their title, of which they allege the plaintiff had notice, was wholly void and did not vest any right to the property in them. A notice of an invalid or worthless title will not affect a . title subsequently acquired by a purchaser for value.

We regard the case in hand as ruled by Lee v. Newland, 164 Pa. 360. It was there held that a deed from a. county treasurer for land sold at a tax sale is not valid to pass the title without acknowledgment in open court, and a record of the acknowledgment in the minutes of the court, and that the minutes of the court are the only proper evidence of the acknowledgment. In the opinion of the trial court in that case, adopted by this court, it is said (p. 368): “ It is the duty of the purchaser to see that his deed is so acknowledged and registered (in the common pleas), and of every purchaser of a tax title to examine the record of acknowledgments for himself.”

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


text:
    Baker v. Pittsburg, Carnegie & Western Railroad Company, Appellant.

      Railroads — Condemnation of land — Injury to coal land — Damages— Expert witness — Evidence.
    In a proceeding against a railroad company to recover damages for injuries to coal property, a witness called as an expert by the plaintiff, is not competent, where it appears from his own testimony that he had no knowledge whatever of the market value of coal per acre in the ground in the vicinity, although he had a general knowledge of the business of mining coal in the vicinity, and of selling it at retail.

      Mines and mining — Reservation of minerals — Right to use surface.

    Where an owner of land conveys the surface but reserves the coal, he has a right thereafter to sink a shaft through the surface in order to ■ mine and remove the coal.
    Argued Oct. 28, 1907.
    Appeal, No. 8, Oct. T., 1907, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1903, No. 371, on verdict for plaintiff in case of Ann C. Baker v. The Pittsburg, Carnegie & Western Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Appeal from award of jury of view.
    Before Brown, P. J.
    At the trial the court permitted, under objection and exception, M. Peters to testify on behalf of the plaintiff as to the value of the coal in controversy [1, 3].
    Defendant presented the following points:
    1. Plaintiff, as the owner of the coal, has no right to go upon the surface overlying the coal to make shafts and openings to mine or remove the coal, for the reason that she has sold the surface without specifically reserving the right so to do. Answer : This point as a whole is refused. To the extent of making a shaft opening to reach the coal, the owner of the coal has the right to use the surface. [5]
    2. A mere reservation of the mining rights does not include the right to go upon the surface to dig for and carry away the coal. Answer: As put this point is affirmed, unless the intent to be conveyed by it is that the owner of the coal has no right to erect a shaft opening at the surface and take the coal away, in which case the point is refused. [6]
    4. The plaintiff having sold and warranted possession of the surface, reserving the coal with the usual mining rights, she has no right to take and occupy any part of the surface sold on which to locate a shaft or mining machinery. Therefore the plaintiff cannot recover damages to this coal based on its removal through the surface. Answer: This point, as a whole, in the alternative, “ shaft or mining machinery,” is ref used. [7]
    Yerdict and judgment for plaintiff for $4,337. Defendant appealed.

      Errors assigned were (1, 3) rulings on evidence, quoting the bill of exceptions ; (5-7) above instructions, quoting them.

      J. B. Jarrett, with him Willis F. McCook, for appellants.
    The testimony of the witness Peters falls short of the test of qualification as laid down by this court: Friday v. Penna. R. R. Co., 204 Pa. 405; Hewitt v. R. R. Co., 19 Pa. Superior Ct. 304.
    Plaintiff had no right to mine the coal: Coleman v. Chadwick, 80 Pa. 81; Martin v. Brewster Iron Mining Co., 55 N. Y. 538.

      John O. Petty, for appellee.
    Peters was a competent witness: Penna., etc., R. R. & Canal Co. v. Bunnell, 81 Pa. 414; Penna. R. R. Co. v. Henderson, 51 Pa. 315; P., & L. E. R. R. Co. v. Robinson, 95 Pa. 426; Pittsburg Southern Ry. Co. v. Reed, 44 Legal Int. 92; Jones v. Ry. Co., 151 Pa. 30; Hanover Water Co. v. Ashland Iron Co., 84 Pa. 279; Swank v. Carnegie Nat. Gas Co., 5 Pa. Superior Ct. 371; Wilson v. Gas Co., 152 Pa. 566; Davis v. Gas Co., 147 Pa. 130; Brown v. Corey, 43 Pa. 495.
    One who has the exclusive right to mine coal upon a tract of land has the right of possession as against the owner of the soil, so far as is necessary to carry on his mining operations: Sanderson v. Coal Co., 113 Pa. 126; Turner v. Reynolds, 23 Pa. 199; Robertson v. Coal Co., 172 Pa. 566; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286; Dand v. Kingscote, 6 M. & W. 174; Williams v. Bagnall, 15 Weekly Repr. 272; Marvin v. Brewster Iron Mining Co., 55 N. Y. 538; Rogers v. Taylor, 1 H. & N. 706; Hext v. Gill, L. R. 7 Ch. App. Cases, 699.
    January 6, 1908:
   Opinion by

Mr. Justice Potter,

The issue in this case was framed under an appeal from the award of viewers appointed to assess damages for the construction of a tunnel by the defendant railroad compauy, by virtue of its power of eminent domain, through a piece of coal land, owned by the plaintiff. The tract in question contained between twenty-one and twenty-two acres. The plaintiff had formerly owned the surface, but some twenty years before the entry by the defendant she sold the land, expressly reserving in her deed “ all of the coal underlying the same, with all mining rights and privileges appurtenant thereto.” Only about one and a half acres of coal was actually taken by the defendant, but the railroad tunnel divided it so that that there were about sixteen acres on one side and five on the other, and this, it was claimed, damaged the whole. Upon the trial in the court below the jury found a verdict in favor of the plaintiff for $4,737 on which judgment was entered.

The first and second assignments raise the question of the competency of a witness, M. Peters, called by plaintiff to testify to the market value of the coal. The question to be determined was the amount of injury which had been done to the property of the plaintiff. "While less than one and a half acres of the coal was actually taken by the defendant, yet it was claimed that the cutting of the property in two parts had the effect of preventing the whole from being mined in one operation, and rendered it unprofitable to mine either portion by itself. But whether or not this was true, the primary inquiry was as to the market value of the coal in place in the ground. Yet, when asked if he knew the market value of coal lands, such as the Baker coal, at the time the railroad passed through, the witness Peters said, “ I don’t know of any coal in the'market near tiiat place for sale. Therefore, I cannot say what the market value of coal would be there.” It would seem that this frank statement should have been sufficient to excuse the witness. But when he was further asked if he could state what coal was held at by the acre, by the people owning coal in that vicinity, he answered, “ About that time I didn’t know of anyone owning any coal except the Baker coal and another block adjacent to that coal.” The court then asked: “ Did you have a general knowledge of the holding and selling market value in that vicinity about 1902 by the acre?” Witness answered: “It is just this way: There was no coal to sell in that neighborhood that I know of.” “ Q. Then did you or not know of the market values at that time ? A. All I know is what was offered for this other block of coal. Q. For a single block ? A. For a single block.” Then, after stating that he had heard of sales made two or three years before, which the court said were too remote, he was further examined by the court as follows : “ Q. Do you think you have a sufficient knowledge of the fair market value of coal property, of the Baker and similar tracts in the vicinity, about 1902 ? A. 1 think I ought to have. Q. Why should you have ? A. From my long experience in mining coal in that vicinity.” This was rather remarkable after the witness had expressly stated that he did not know the market value of the property. It is difficult to understand how his long experience in digging or mining coal would give him knowledge of the market value by the acre. His skill as a miner would give him no knowledge of the selling value of the coal in the ground ; nothing but buying or selling himself, or his knowledge of what was done by others in that line would fit him to give an estimate of the market value. When asked, “ Is there anything else ? Have you had talks with your neighbors and people out there?” he replied: “Talks with the neighbors and different parties, foreigners to that place, that bought coal in that vicinity.” But no time was fixed as to when the foreigners bought the coal, and presumably he referred to the sales made some years before, which the court had already characterized as being too remote. We think the witness clearly showed his own incompetency to testify as to market value, and that the court mistakenly admitted his estimate. This is further apparent from his cross-examination, where he said that while he had heard of several sales of small tracts of coal land in the neighborhood, yet he did not know the prices paid. He and another party had offered to buy the coal on an adjoining tract, but their offers were to take the coal out by tonnage, or by royalty. Witness also said that he based his opinion as to the value of this coal “ on the law of supply and demand,” and that the Baker tract was located more convenient to the market than the tract which witness had offered to buy on royalty. He stated further that he fixed the price regardless of the sales that had been made in the neighborhood. He thought at a valuation of $600 or $700 an acre the coal could be worked out.

The witness evidently had in mind, in making his estimate, the results which he personally might be able to work out by his skill as a miner, in connection with his ability as a business man, by opening and managing a retail mine, and selling coal to such customers as would buy at retail in the vicinity. We think this was carrying the inquiry beyond its legitimate scope. Plaintiff was only entitled to have her coal valued at what it might be worth as it lay in the ground in the condition in which it was when the railroad ran through it. Its market value is its fair selling value for cash, not payable as royalty, strung out through a long series of years, but payable at the time it was taken by the defendant, or as soon thereafter as the value could be determined. We are satisfied that the witness Peters did not show himself competent to testify as to market value in the proper sense of the term. His own testimony showed that whatever may have been his general knowledge of the business of mining coal in the vicinity, and of selling it at retail, he' had no knowledge of the market value of the coal per acre in the ground. He was, therefore, incompetent to give his opinion as to that; under the circumstances it was a mere conjecture, based upon what he thought he might be able to work out of it by opening and conducting a retail coal business in connection with the property. As was said in Friday v. Penna. R. R. Co., 204 Pa. 405, the market value of property is not to be fixed “ by what a particular witness, having in view a special purpose, might be willing to give for it, if he had the money.”

The first and second assignments of error are sustained.

As to the other specifications of error which question the correctness of the ruling of the trial judge, that under the reservation in plaintiff’s deed, she had the right to sink a shaft upon the land sold by her for the purpose of mining the coal which she had reserved, we think the court below was clearly right. It is the established law in Pennsylvania. In a recent case, Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319, our Brother Mestrezat said (p. 324): “If the owner of the whole fee conveys the coal in the land in general terms, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the superincumbent estate.” The undoubted right of the owner of coal to mine and remove it, was also expressly recognized in Pringle v. Vesta Coal Co., 172 Pa. 438, and the principle that “ one who has the exclusive right to mine coal upon a tract of land has the right of possession even as against the owner of the soil, so far as it is necessary to carry on his mining operations ” is laid down in Turner v. Reynolds, 23 Pa. 199. See also Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.

The general'rule is stated in 2 Bindley on Mines, sec. 813, where it is said: “ A grant of minerals implies the right to win them from the underlying soil. The use of some portion of the surface is necessary for the proper enjoyment of this right. To reach the minerals the miner must pass from the surface downward; to do this he has a right of way of necessity. He may sink through such land from the surface to. the mines, in order to reach and work them.” And in 2 Sugdon on Mines and Mining, sec. 1008, it is said : “ An express -grant of all the minerals and mining rights in a tract of land is by natural implication the grant also of the right to open and work the mines, and to occupy for those purposes as much of the surface as may be reasonably necessary.”

The English rule is to the same effect, for in a late work on the subject, Cockburn on Coal and Coal Mining (1902), pp. 117-118, it is said: “The right of a grantee or person entitled to mines or minerals depends upon the terms of the instrument, but if mines are excepted in a lease, conveyance or other instrument without any express mention of working powers, then the law implies pr confers all such powers as are reasonably sufficient to enable the mine owners to dig and carry away the minerals, namely, a power to enter upon the surface, dig pits, get the minerals, and for a limited period deposit them on the surface.” In the present case the right to the coal is by way of reservation, but that has the same force and effect as a grant.

The fifth, sixth, seventh and ninth assignments are dismissed, but by reason of the error as set forth in the first and second specifications, the judgment is reversed, and a venire facias de novo is awarded.


author: Mr. Justice Elkin,

text:
    Bowen, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Master and servant — Risk of employment — Contributory negligence — Railroads.
    When one person enters the employ of another there is an implied contract that he assumes such risks as are ordinarily incidental to that employment, and to have notice of all such risks as are or ought to be open and obvious to a person of his experience. He assumes this risk in advance at the very inception of his contract of employment and it continues so long as that relation exists.
    An injured party cannot recover if guilty of contributory negligence, because by his own act he has intervened between the negligence of the defendant and the injury received in such a manner as to break the causal connection.
    In an action by a brakeman against his employer, a railroad company, to recover damages for personal injuries, binding instructions for the defendant are proper where it appears that the plaintiff was injured in alighting from a car by coming in contact with a telegraph pole close to a switch, that the plaintiff knew of the location of the pole, had previously notified the supervisor of the yard about it, and two minutes before the accident had warned the engineer that he would be hit by the pole if he did not take his head in from the engine window, and that the plaintiff could have avoided the accident if he had exercised reasonable care in alighting from the ear.
    Argued Oct. 25, 1907.
    Appeal, No. 113, Oct. T., 1907, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1905, No. 44, on verdict for defendant in case of Charles E. Bowen v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Criswell, P. J., gave binding instructions for defendant. In his charge he stated the circumstances of the accident to be as follows:
    It appears from the testimony of the plaintiff that there was a pole erected near one of the switches of the defendant company. When that pole was placed there does not appear.. The plaintiff, however, knew of it on and prior to December 30, 1904; he says so, and he says that on that date he called the attention of the supervisors to it, that that pole was too near the tracks. He says the supervisor promised to have the matter remedied ; he further says that he was not in the neighborhood of the pole again until January 20 following; he didn’t know whether it had been removed or not; this was his testimony in chief, and that on the 20th he was injured.
    On the part of the defendant Mr. Thompson, the engineer in charge of the shifting engine in the yard, was called, and he testified that on the same evening the plaintiff was injured, and about five minutes before he was injured, and possibly not to exceed two minutes before the accident happened, that the plaintiff, as he was moving the engine along, called to him to take his head in, that he would be hit by that pole ; Mr. Thompson says the plaintiff was then about twenty-five feet from the pole. Another witness, Mr. McMullin, testifies that the plaintiff said he had been notifying everybody about the pole; this was some little time before the accident; he is unable to fix the exact time of it, but it was some time before the accident.
    In rebuttal, the plaintiff comes on the stand and admits that he was on the side of the train upon which the pole was located, and he says he was about two car lengths from the pole, and that when in that position he did call to the engineer to take his head in, endeavoring to warn him against the proximity of the pole and the danger of being hurt. How, it appears that notwithstanding these facts and his knowledge that the pole was there, which cannot be questioned in view of this evidence, that he went on the car after it was disconnected from the engine, took his position on the front.platform of the car as it was going, applied the brakes, and while the way was open for him to go down on the other side of the car, and while the car was still moving but almost stopped, in fact he says it went only about two feet after he got off, he got off on the side of the car next the pole, right at the point where the pole was located, in such a shape as to be immediately caught between the pole and the car.
    Yerdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      Henry P. Nevins, with him John M. McGill, for appellant.
    The case was for the jury: Patterson v. R. R. Co., 76 Pa. 389; Maines v. Harbison-Walker Co., 213 Pa. 145; Bentley v. Cranmer, 137 Pa. 244.

      John L. Nesbit, with him Orr Buffington and P. M. Speer, for appellee.
    Plaintiff was guilty of contributory negligence: Bellows v. Canal & R. R. Co., 157 Pa. 51; Fulford v. Lehigh Valley R. R. Co., 185 Pa. 329; Mansfield Coal, etc., Co. v. McEnery, 91 Pa. 185; N. Y., L. E. & W. R. R. Co. v. Lyons, 119 Pa. 324; Haven v. Bridge Co., 151 Pa. 620; Mulherrin v. D., L. & W. R. R. Co., 81 Pa. 366; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Davis v. B. & O. R. R. Co., 152 Pa. 314.
    January 6, 1908:
   Opinion by

Mr. Justice Elkin,

In the consideration of this case some confusion has arisen in properly defining and understanding the doctrines of assumption of risk and of contributory negligence. It should always be borne in mind that defenses growing out of these doctrines are separate and distinct, resting upon entirely different grounds and not dependent upon each other. In Priestley v. Fowler, 3 Mees. & W. 1, decided in 1837, and a leading case on this question, it was laid down as a principle that a servant assumes all the ordinary risks which are incidental to his employment. Since that time this doctrine has been universally applied by the courts in which the common law is the prevailing system of jurisprudence. While the text-writers and the courts have not always given the same reason for the foundation of the rule, the weight of authority bases it upon the contractual relation existing between the parties. It seems but reasonable to hold that when one person enters the employ of another there is an implied contract that he assumes such risks as are ordinarily incidental to that employment, and to have notice of all such risks as are, or ought to be, open and obvious to a person of his experience. In theory, at least, the employee is presumed to have waived any'right of action he might otherwise have for injuries received, if such injuries result from the risks and dangers of the employment in which he is engaged. He assumes this risk in advance at the very inception of his contract of employment, and it continues so long as that relation exists. In this state the law is settled that an employee, in accepting the employment, assumes all risks ordinarily incidental thereto, and all other risks, open and obvious, the dangerous character of which he has had an opportunity to observe: Dooner v. Canal Co., 171 Pa. 581; Boyd v. Harris, 176 Pa. 484; Nuss v. Rafsnyder, 178 Pa. 397; Fulford v. Lehigh Valley Railroad Co., 185 Pa. 329.

The application of this rule would be the end of appellant’s case except for the allegation that he had reported the dangerous location of the pole to the supervisor, who had promised to remove it. Assuming this to be a fact, it is argued that where a master makes a promise to repair he, and not the servant, assumes the risk between the time of the promise and the time for its fulfillment, and for a reasonable length of time thereafter. Patterson v. Railroad Co., 76 Pa. 389; Maines v. Harbison-Walker Co., 213 Pa. 145; Foster v. Steel Co., 216 Pa. 279, are relied upon to support this contention. On the other hand, it is denied by the supervisor that such a conversation took place or such promise was ever made. It is urged that the promise, even if proven, was not made by anyone having authority to represent the defendant company, and would not be sufficient in law to bind it. If the case turned upon the question of the assumption of risk, in our opinion it would be for the jury to determine, under proper instructions by the court, whether appellant had given notice of the dangerous location of the pole to an employee or officer of the company, whose promise'to remove could bind it, and whether he had continued in his employment relying upon the promise to remove the danger complained of.

The case is not controlled by the question of assumption of risk, but the right to recover depends upon whether appellant was guilty of contributory negligence. As has been hereinbefore stated this is an entirely separate and distinct defense, in no way connected with or dependent upon the question of the assumption of risk. An injured party cannot recover if guilty of contributory negligence because by Ms own act he has intervened between the negligence of the defendant and the injury received in such a manner as to break the causal connection. This is the theory upon which most of the authorities base the doctrine. In its application to the facts of a particular case it means that the complaining party cannot recover damages on account of injuries received, no matter if the evidence produced at the trial clearly shows the defendant to be guilty of negligence, if it also appears that the negligence of the injured party contributed to the injuries for which he asks to be compensated. In other words, the law will not permit him to recover from some other party on the ground of negligence if his own act of negligence contributed to the injuries for which he seeks damages. It must then be determined whether the appellant here was guilty of contributory negligence. What are the facts 'l Appellant was a brakeman or switchman in the yards of the defendant company at Oil City, and must be presumed to have known the exact location of the switches, lines, poles and other appliances in that yard. He did know the exact conditions, as is shown by his own testimony. He saw a certain pole located so close to one of the tracks as in his judgment to make it dangerous. He notified the engineer and other employees of this alleged danger. On the evening when the accident occurred, just as the engine approached the pole he notified the engineer to look out for the pole. This is proof positive that he knew it was still there. At that time he was in a safe position and by the exercise of ordinary and reasonable care, a duty resting on him at all times, he could have avoided the danger about which he notified others. He also had the opportunity of getting off his car at the opposite side from the pole, where he would have been in a place of safety, and if he had done so would not have been injured. Under these circumstances the case is squarely ruled by Burns v. Johnstown Passenger Railway Company, 213 Pa. 143. In that case the rule was stated in the following language : “ If he knew the danger, and he did, and could have avoided it by reasonable care, and of this there is no doubt, it was his duty to do so, and having failed to perform his duty in this respect, he was guilty of contributory negligence and there can be no recovery in this case.”

Under the'facts of this case we hold that appellant was guilty of contributory negligence in not avoiding the danger with which he was familiar and which he could have avoided by the exercise of reasonable care.

Judgment affirmed.


text:
    Brown v. Miles, Appellant.

      Practice, C. P. — Affidavit of defense — Conversion of securities.

    In an action against a partnership to recover damages for an alleged conversion of securities, an affidavit of defense is sufficient which expressly and circumstantially denies the conversion and appropriation of the securities by the firm, or that the firm ever had control over them or derived any benefit from them, and sets out facts and circumstances in connection with the transaction which so explain and supplement the averments of plaintiff’s statement, that the only inference to be drawn would be one adverse to plaintiff’s right of recovery.
    Argued Oct. 28, 1907.
    Appeal, No. 18, Oct. T., 1907, by defendants, from order of C. P. No. 3, Allegheny Co., Aug. T., 1907, No. 720, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas D. Brown v. R. E. Miles and John A. Wood, Jr., trading as Miles, Wood & Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit to recover for securities alleged to have been converted.
    Plaintiff in his statement of claim averred that R. E. Miles and John A. Wood, Jr., partners, doing business as Miles, Wood & Company, defendants, are indebted to him in the sum of $2,170.32, with interest from May 16, 1906.
    That some time prior to May 31, 1905, the plaintiff pledged with R. E. Miles 208 shares of United States Class stock and four shares of Guarantee Title & Trust Company stock to secure an indebtedness to the said R. E. Miles of $8,240.55.
    That in November, 1905, R. E. Miles and John A. Wood, Jr., formed a partnership under the firm name of Miles, Wood & Company, the terms of which are unknown to plaintiff.

      That on December 30, 1905, plaintiff received a statement showing him to be indebted to Miles, Wood & Company in the sum of $8,106.60, and having pledged as security therefor the above mentioned stock, which indebtedness and stock were the same account which had formerly been with E. E. Miles.
    Defendant firm continued to send monthly statements of this account up to and including April 30, 1906, during which period the firm of Miles, Wood & Company had charged against the plaintiff interest upon the above amount and collected dividends upon the stocks pledged, and on April 30 he received a statement in account with Miles, Wood & Company for $8,263.80.
    Shortly after the receipt of the last statement plaintiff was notified to take care of his account, and he went to the office of Miles, Wood & Company, ascertained the exact balance due on the account, and tendered the amount to John A. Wood, Jr., one of the defendants, who was then in charge of the office and business of the defendants, and then and there demanded the stocks that were pledged as security for the indebtedness.
    That John A. Wood, Jr., told plaintiff that he could not deliver said stocks, that they were pledged with the Real Estate Trust Company for a larger amount of money. That plaintiff went to the Real Estate Trust Company, found his stocks pledged with the Real Estate Trust Company to secure a very large note of Miles, Wood & Company, and the trust company declined to surrender the same unless it received for account of said note the sum of $10,453.40, which was $2,170.32 more than plaintiff’s indebtedness to Miles, Wood & Company on May 16, 1906.
    That in order to redeem and save his stocks he was compelled to pay the Real Estate Trust Company $10,453.40. Whereupon defendants became indebted to plaintiff in the sum of $2,170.32.
    John A. Wood, Jr., one of the defendants in the above case, in behalf of himself and the firm of Miles, Wood & Company, averred, in an affidavit of defense, that on November 1, 1905, he entered into partnership with R. E. Miles for the purpose of carrying on a general stock, bond and brokerage business; that for a long time prior to that date R. E. Miles had been carrying on a similar business in his own name, and had a largo number of customers with whom he had dealings. That by the partnership agreement affiant became in no way liable for any of the debts or obligations of the said R. E. Miles which had been created prior to the formation of the partnership.
    That Thomas D. Brown was a customer of R. E. Miles, and had dealings with him prior to the partnership between affiant and the said Miles. That the said plaintiff had pledged with Miles certain stocks to secure an indebtedness to the said R. E. Miles long before the formation of the partnership, and Miles in turn had pledged those stocks with the Real Estate Trust Company of Pittsburg to secure his personal indebtedness to the trust company, and they were so pledged at the time affiant entered into partnership with Miles.
    That on December 5, 1905, without the knowledge or consent of affiant, R. E. Miles lifted his several notes in the Real Estate Trust Company and gave one in the name of Miles, Wood & Company, and pledged the stocks which he had received from plaintiff^ together with others received from his former customers, as security for this note. That some time later R. E. Miles, on account of ill health, went to California, left his business and the business of the firm in the hands of affiant, and the said Miles never afterwards took any part in the business of Miles, Wood & Compan3^.
    That affiant then learned that Miles had become largely involved in his previous business, and had signed the firm name to certain notes, including the one above mentioned, the entire proceeds of which were received by Miles, and from which neither affiant nor the firm of Miles, Wood & Company received any benefit whatever. That said notes were for moneys for which neither affiant nor the firm of Miles, Wood & Company were in any way liable. That the note of Miles, Wood & Company, given by R. E. Miles to the Real Estate Trust Company as aforesaid, was given to lift notes which R. E. Miles had previously given to said trust company for his individual indebtedness. That said note was not a legal obligation against the firm of Miles, Wood & Company. That when Miles neglected to take care of his personal accounts affiant notified the various customers of R. E. Miles, prior to the date of the partnership, that it would be necessary for them to protect their own interests.

      That Thomas D. Brown, the plaintiff, never had any dealings with the firm of Miles, Wood & Company, and the stock in question was never in the possession of Miles, Wood & Company.
    Affiant denied that Miles, Wood & Company had charged against the plaintiff interest on the above accounts, and averred that all the accounts were kept in the original books of Ib E. Miles, and that the firm of Miles, Wood & Company had no connection whatever with plaintiff’s account.
    Affiant averred that all notices of dividends collected on plaintiff’s stock, after the formation, of the partnership, were sent to plaintiff on printed blanks of R. E. Miles, with the name of R. E. Miles stamped thereon, and that the dividends received on the stock held as collateral were used to pay the interest on the loans secured by R. E. Miles for the plaintiff’s benefit at the Real Estate Trust Company. That neither affiant nor the firm of Miles, Wood & Company received any benefit whatever from the dividends received from said stock.
    That in December, 1905, and in January, 1906, monthly statements were inadvertently sent to plaintiff upon paper containing the heading of Miles, Wood & Company. They were taken from the original books of R. E. Miles, showing plaintiff’s account. That plaintiff was in no way injured or prejudiced by the monthly statements sent out as aforesaid upon the firm paper of Miles, Wood & Company, or in any. other way by affiant or by Miles, Wood & Company ; and affiant denies any liability to plaintiff on his own account or on account of the firm of Miles, Wood & Company.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense.

      Error assigned was the order of the court.

      James W. Kinnear, T. David McCloskey and Wm. E. Best, for appellant.

      A. M. Imbrie, for appellee.
    January 6, 1908:
   Opinion by

Mr. Justice Stewart,

With nothing before us but the order making absolute the rule for judgment, it is difficult to understand on what ground the affidavit of defense in this case was adjudged insufficient. In his statement of claim the plaintiff does not rest his demand upon any express assumption by the defendants. His claim is that the defendant firm, without authority from him and without his knowledge, converted and applied to their own use, certain securities which he had pledged with another who subsequently became a member of the defendant firm. The statement sets out facts and circumstances which, uncontradicted or unexplained, would warrant no other inference than that the firm had converted and applied the securities in the way charged, and that, because of the firm’s default, plaintiff was obliged to expend the amount of his present demand in order to redeem them. But the affidavit expressly and circumstantially denies the conversion and appropriation of the securities by the firm, or that the firm ever had control over them, or derived any benefit from them, and sets Out facts and circumstances in connection with the transaction, which, while not in conflict with the facts set out in plaintiff’s statement, yet so explain and supplement them, that the only inference to be derived would be one adverse to plaintiff’s right of recovery, except as he could show an equity resulting from the transaction not indicated in his statement of claim. With that we have, however, nothing to' do at this stage of the case. Since the case is to be tried we refrain from any fuller or further reference to the facts.

Judgment reversed, and procedendo awarded.