author: Mr. Justice Stewabt,

text:
    Savings & Trust Company of Indiana v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Appropriation of land — Witnesses—• Market value — Availability of tract for town lots — Value of standing timber.

    1. In a proceeding to ascertain damages for the taking of land by a railroad company under the right of eminent domain, the market value at which the law seeks to arrive is what the land would sell for in the open market in the regular course of trade and competition ordinarily.obtaining. It is, therefore, proper for a qualified witness to include in his estimate every consideration which in his judgment would influence the general buyer.

      2. In such a case, the fact that the land in question had not been laid off in lots, that it did not appear that the owner ever contemplated selling it in that way, and that no existing demand for the particular lots was affirmatively shown, is not sufficient to exclude the testimony of those witnesses whose estimate of value tools account of the availability of the land for building lots, if it could be reasonably expected that the general buyer would consider future availability for the lots and regulate his bid accordingly. This rule applies as well to estimates of depreciation in consequence of appropriation.
    3. Evidence as to the value of standing timber on the land so appropriated is competent only for the purpose of supporting the estimates of witnesses who have testified to the value of the land taken in making up their estimate of the total damage. It is not competent as evidence of a distinct element of value separate from the land itself.
    4. In an action for damages for the taking of land under the right of eminent domain, where the larger part of the land in question is situated within the limits of a borough, there is no force in an objection to the competency of a witness on the ground that his knowledge of market value is confined largely to town lots.
    Argued Oct. 10, 1910.
    Appeal, No. 178, Oct, T., 1910, by defendant, from judgment of C. P. Indiana Co., Sept. .Term, 1906, No. 349, on verdict for plaintiff in case of The Savings & Trust Company of Indiana, Pa., administrator of the Estate of Martha R. Sloan, deceased, v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Tel-ford, P. J.
    The facts appear in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $10,887. Defendant appealed.

      Errors assigned were (1, 15) in permitting witnesses, in giving their estimate of the market value of the tract as a whole to include as an element of such value the availability of tract for lot purposes; (2, 3, 6) in refusing to strike out witnesses’ estimate when based on loss of sewerage; (4, 5) in admitting testimony as to market value of timber on land taken; (8-14) various rulings on evidence and (15-19) various instructions of the court.
    January 3, 1911:
    J. N. Banks, for appellant.
    It is the actual present condition at the time of the taking which must be considered, not prospective or possible contingencies: Catlin v. Northern Coal & Iron Co., 225 Pa. 262; Hamory v. Penna., etc., R. R. Co., 222 Pa. 631; Penna., S. V. R. R. Co. v. Cleary, 125 Pa. 442.
    It.is objectionable to show the value of timber trees on the right of way as a separate element of damages: Reading & P. R. R. Co. v. Balthaser, 126. Pa. 1; Cox v. Phila., etc., H. & P. R. R. Co., 215 Pa. 506.

      A. E. Sloan, with him Samuel Cunningham and J. S. Fisher, for appellee.
    It is proper to show availability or adaptability for lot purposes by showing the location of the property, and character of surroundings, as a part of the intrinsic value of property: O’Brien v. Ry. Co., 194 Pa. 336; Wilson v. Equitable Gas Co., 152 Pa. 566.
    Evidence as to the value of the timber on the land appropriated was introduced simply to acquaint the jury with the condition of the plot and the timber thereon: Leiby v. Clear Spring Water Co., 205 Pa. 634; Danville, Hazleton & Wilkes-Barre R. R. Co. v. Gearhart, 81* Pa. 260.
   Opinion by

Mr. Justice Stewabt,

The action was for damages for the taking of land under the right of eminent domain. The land taken is a narrow strip containing eight acres, part of a larger tract of sixty-one acres lying partly within and partly without the borough of Blairsville. This strip had been condemned by the defendant company for the purpose of constructing thereon a railroad track parallel with another previously constructed on the same tract. From the judgment obtained on the verdict in the court below the defendant company has appealed, and we have presented to us nineteen assignments of error. We cannot attempt a discussion of these separately, nor is it necessary. Much less than half the number would have sufficed to raise every question in the case. In seven, the complaint is the same, namely, that the court erred in permitting witnesses, in giving their estimate of the market value of the tract as a whole, to include as an element of such value the availability of the tract for building lots, inasmuch as it was not shown that any present demand existed for building lots in that neighborhood, or that any attempt had been made to sell the land in lots, or that the land had even been surveyed and laid out with such purpose in view. These assignments involve a misconception of what the law means by market value in such cases. It is nothing more or less than what the subject would sell for in the open market, exposed to all bidders, in the regular course of trade and competition which ordinarily obtains with respect to that particular class of subject. Nothing short of an actual sale of a tract of land in the open market can fix definitely and certainly its market value. Until so sold, what it will bring in a fair and open market, is mere matter of opinion, and wide divergence of view is in most cases to be expected, rarely, however, so marked as in the present case. Nevertheless, it is from these opinions, based on the general selling price of land, however divergent, that the laws seek to arrive at an estimate that will serve the ends of practical justice. No opinion as to the market value of a tract of land based on other considerations than such as may reasonably be expected to influence the general buyer, can be in the least helpful. As much may be said of the opinion which excludes from the estimate considerations which manifestly would appeal to and influence the general buyer. True, what would appeal to the general buyer in the way of enhancement of value, is matter of opinion, and here too diversity of view is to be expected; but this does not change the fact that the reference must be to the mind of the general buyer. When there is diversity of view expressed with respect to this matter, it is for the jury to determine for themselves, which of the opposing witnesses has given the better reason for his view. It is perfectly proper therefore, for a witness who has shown himself qualified to speak on the subject of value, when giving his opinion, to include in his estimation any and every feature and consideration which in his judgment would influence the general buyer. This brings us to the question raised by these assignments. The land had not been laid off in lots; it did not appear that the owner ever contemplated selling it in that way; nor did it affirmatively appear that there was present existing demand for building lots in that neighborhood. Should these facts exclude from the computation all consideration of the availability of the tract for building lots? Certainly not, if the market value is the thing to be determined. The owner of a piece of land may be blind to its most profitable uses, or, because of his circumstances, indifferent as to employing them. Whether he neglect or improve advantages in connection thei’ewith, is his own concern. If these uses and advantages would occur to the average buyer and influence him, they must enter directly into the market value of the land regardless of the uses to which the owner has theretofore applied the land. The reference must always be to present value in view of the uses to which the land is reasonably capable of being put; for these are the things that operate and determine market value. The fact that no existing demand for the particular lots was affirmatively shown, was not sufficient to exclude the testimony of those witnesses whose estimate of value took account of the availability of the land for building lots. The rule we have indicated must here apply. If it could reasonably be expected that the general buyer would consider future availability for the lots and regulate his bid accordingly, such availability necessarily becomes an element entering into market value. What we have said on the general subject applies as well to estimates of depreciaron in value in consequence of the appropriation. All and only such things are to be considered as may reasonably be expected to be taken in account by the general buyer. If the land was available for building lots and had enhanced value on that account, whatever resulted from the appropriation to render it less desirable or marketable for this particular purpose, whether in convenience of approach, greater difficulty and increased expense in establishing convenient streets, interference with proper drainage and sewerage, or whatever it may be, would necessarily enter into the estimate. Of the nineteen assignments, twelve have been sufficiently answered in what we have said.

The strip appropriated by the defendant company was covered with standing timber at the time of the appropriation. This timber was cut and used in the construction of the railroad. Evidence was admitted as to its value. This ruling is the subject of the fourth and fifth assignments. The evidence was competent for one purpose only. Two of plaintiff’s witnesses had testified to the value of the eight acres of land taken in making up their estimate of the total damage sustained. In so far as the offer to show the value of the timber would go to support these witnesses in their estimation of the value of the land actually taken, it would be competent for that purpose. It would not be competent as evidence of a distinct element of value separate from the land itself. Whether it was employed in the way indicated we have no means of knowing to a certainty. It would have been entirely proper for the court to have so instructed the jury, and it would doubtless have done so had a request for such instructions been made. The point was not in any way raised on the trial.

The ninth and twelfth assignments challenge the competency of certain witnesses who were admitted to testify to the market value of the plaintiff’s land on the ground that their knowledge of market value was confined largely to town lots. When it is recalled that more than one-half of the plaintiff’s tract was within the borough limits, the objection to the competency of the witnesses is left without force. The remaining assignments may be dis-* posed of without other comment than this, — the evidence complained of was introduced not by the plaintiff but by the defendant. We see no merit in any of the assignments. All are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Justice Moschziskek,

license: Public Domain

text:
    Riggs, Appellant, v. New Castle.

      Deeds — Municipal corporations — Fee simple — Easement in gross— Base fee.

    1. A declaration in a grant to a corporation that land is conveyed for certain purposes does not necessarily import a limitation of the fee. It is to be construed rather as an assertion of the intended legality of the grant.
    2. A written agreement, under seal, which provides that a borough, its lessees and assigns, “may and shall occupy forever for purposes of wharf” certain land of parties named and that these parties may and shall occupy forever certain land belonging to the borough, passes a fee absolute in the land conveyed to the borough.
    3. No prescribed form is essential to the validity of a deed; and a deed informally drawn will convey a fee.
    Argued Oct. 10, 1910.
    Appeal, No. 164, Oct. T., 1910, by plaintiffs, from judgment of C. P. Lawrence Co., March T., 1906, No. 39, on verdict for defendant in case of Bird C. Riggs et al. v. City of New Castle.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in New Castle city. Before Porter, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned among others was in giving binding instructions for defendant.

      January 3, 1911:

      H. K. Gregory, with him S. P. Emery and T. W. Dickey, for appellants.
    The instrument did not attempt to pass the fee, either by apt words for a feoffment, bargain and sale, or grant: Lacy v. Green, 84 Pa. 514; Lane v. Nelson, 167 Pa. 602; Siegel v. Lauer, 148 Pa. 236.
    If an estate passes it passed for a specified purpose and was determinable upon the cessation of the use of the property for that purpose: Siegel v. Lauer, 148 Pa. 236.

      James A. Gardner, city solicitor, for appellee.
    It is not necessary to have formal legal or other operative words in a deed or other writing: Wilkes-Barre v. Wyoming Historical, etc., Soc., 134 Pa. 616; Auman v. Auman, 21 Pa. 343; Krider v. Lafferty, 1 Whart. 303; Bennett v. Robinson, 10 Watts, 348.
    An agreement to sell land to be used for a specified purpose is not a condition or limitation and does not change the conveyance or title to a base fee: First Methodist Church v. Public Ground Co., 103 Pa. 608; Seabold v. Sitler, 34 Pa. 133; Kerlin v. Campbell, 15 Pa. 500; Sellers M. E. Church’s Petition, 139 Pa. 61; McCalla’s Est., 16 Pa. Superior Ct. 202.
   Opinion by

Mr. Justice Moschziskek,

The proper construction of a written instrument is the essential point for determination in this case.

In 1856 the land in controversy was owned by certain ancestors of the present plaintiffs. On March 1 of that year they, as parties of the first part, entered into a written agreement under seal with the borough of New Castle, as party of the second part, which was duly acknowledged and filed of record. This writing provides: “The parties of the first part upon consideration of the premises hereinafter expressed, hereby agree that the said party of the second part, its lessees and assigns may and shall occupy forever for purposes of wharf all that strip of land lying on the west side of Neshannock Creek (describing the land in controversy) in consideration whereof said Borough hereby agrees that said parties of the first part may and shall occupy from and after the date hereof without let, hindrance or interference from the said Borough to the sole use, benefit and behoof of said parties of the first part, their heirs and assigns forever and for whatever «purpose the said parties of the first part may see proper” (here follows a description of a piece of land then owned by the borough).

The plaintiffs contend that this instrument only gave to the borough an easement in gross which has since been terminated by operation of law. The defendant contends that it created a fee absolute.

While the writing in question is not styled a deed or conveyance,, it is clear that it is an agreement of bargain and sale founded upon a valuable and sufficient consideration, and having been recorded it had the effect of a feoffment with livery of seisin or of a deed under the statute of uses: Eckman v. Eckman, 68 Pa. 460. “Although there are certain formal parts usual to deeds, yet it is not absolutely necessary that a deed should contain all of these parts, it being sufficient that the matter written should be legally and orderly set forth, by words which clearly specify the agreement and meaning of the parties and bind them. Nor is any prescribed form essential to the validity of a deed; and a deed informally drawn will convey the fee:” 13 Cyc. 537; Auman v. Auman, 21 Pa. 343. The word “successors” is not essential to pass a fee: Wilkes-Barre v. Wyoming Historical, etc., Society, 134 Pa. 616; “so the words ‘bargain and sale’ are not necessary to constitute a deed of bargain and sale, in order to pass a fee-simple:” Krider v. Lafferty, 1 Whart. 303. “In the primary and most familiar sense of the word ‘occupy/ it is the equivalent of the word ‘possess/ It implies the conception of permanent tenure for a period of greater or less duration:” Lacy v. Green, 84 Pa. 514; Lane v. Nelson, 167 Pa. 602; and the word “forever” means “eternally:” 19 Cyc. 1353. “The word .... ‘forever,’ is ... . one appropriate to .... the durability of land:” Landell v. Hamilton, 175 Pa. 327, and “it is the natural adjunct of a fee-simple:” Lessee of Hall v. Vandegrift, 3 Binney, 374; Saxton v. Mitchell, 78 Pa. 479.

The writing stipulates that the borough of New Castle, its lessees and assigns may and shall occupy forever certain land of the grantors, and that the grantors may and shall occupy forever certain land belonging to the borough. This was a mutual grant, and it seems plain that it must have been the intention of the parties that the words “may and shall occupy forever” should have the same meaning in both instances. This language was sufficient to pass a fee absolute and the additional words “for the purposes of wharf” used in connection therewith should not be taken to diminish the estate so created. As noted by the court below, the words of the grant “are not preceded or followed by any words of condition or limitation. The instrument does not state that the grant is made upon condition or provided that a wharf be built or maintained, nor does it say that the grant is to continue ‘so long as’ or during such time as the premises are used for the purposes of a wharf, nor are there any other words of condition or limitation used.”

In Siegel v. Lauer, 148 Pa. 236, it is said: “The mere expression of a purpose will not of and by itself debase a fee. Thus, a grant in fee-simple to county commissioners of land ‘for the use of the inhabitants of Delaware county to accommodate the public service of the county’ was held not to create a base-fee . . . .; as also a grant to county commissioners and their successors in office of a tract of land with a brick court house thereon erected ‘in trust for the use of said county, in fee-simple,’ the statute under which the purchase was made authorizing the acquisition of the property for the purpose of a court house, jail and office for the safe keeping of the records. . . . Similarly a devise of land to a religious body in fee ‘there to build a meeting house upon’ was held to pass an unqualified estate . . . .; as also a grant to a congregation ‘for the benefit, use and behoof of the poor of ... . the congregation .... forever, and for a place to erect a house of religious worship, for the use and service of said congregation, and if occasion shall require a place to bury their dead.’ . . . .”

Most of the cases on the subject under discussion are reviewed in the opinion of Judge Endlich from which we have just quoted and which is reported and expressly approved by this court in the case last cited. It is there pointed out that this court has ruled more than once that a declaration in a grant to a corporation that land is conveyed for certain purposes does not necessarily import a limitation of the fee. To again quote from that opinion: “Such a declaration can amount to no more than an explicit assertion of the intended legality of the grant. As was said, in the case of Griffitts v. Cope (17 Pa. 96): ‘The use to which the granting clause declares that this land is to be applied is of the character which the law requires. . . . The presumption would therefore appear fair and obvious, that by that declaration, the devisor merely meant to make the grant lawful upon its face;’ and in Brendle v. German Reformed Congregation (33 Pa. 415): ‘What then is the efficacy of the declaration that the congregation holds the land for the use of its poor, for a church, and for a burial ground? Nothing, except to show that they hold it for a purpose for which the law allows congregations to hold land. Not to limit their own title, but to recognize the uses allowed by law.’ . . .” In First Methodist Church v. Old Columbia Public Ground Co., 103 Pa. 608, we stated: “The authorities show that the recital of the consideration and the statement of the purpose for which the land is to be used are wholly insufficient to create a conditional estate.” The' subject is also discussed in Wilkes-Barre v. Wyoming Society, supra, and in Sellers M.M. Church’s Petition, 139 Pa. 61.

Under the Act of April 3, 1851, P. L. 320, the borough had the right “to hold, purchase and convey such real and personal estate as the purposes of the borough shall require. . . It had no right to acquire real estate unless for a proper municipal purpose, nor to convey its real estate unless to serve such purpose. With this in mind, and considering that the writing makes no provision for a forfeiture or termination of the estate and uses no words which must be taken as a condition, we construe the phrase, “for the purposes of wharf,” not as a limitation of the estate given to the borough, but rather as used for the purpose of showing the mutual grant “to be lawful upon its face.”

As we agree with the court below that the borough took a fee, it becomes unnecessary to pass upon the question of the extinguishment of the alleged easement.

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


author: Mr. Justice Mestrezat,

text:
    Cooley v. Houston, Appellant.

      Equity — Partition—Jurisdiction—Title—Question of law.

    1. In an equitable proceeding in partition, in which the facts appear by bill and answer, and there is no adverse possession or adverse legal title shown and no issue of fact raised, the issue turning on a single question of law, equity has jurisdiction to determine the question and make partition, without compelling the plaintiff to establish his title in an action at law.
    2. To justify the suspension of proceedings in partition by tenants in common on the ground that defendant holds adversely, the answer must set up more than a mere denial of the tenancy.

      Decedents’ estates — Partition—Wills—Donee claiming adversely — • Election — Ignorance of material fact.

    3. Where a testator, possessed of an undivided half only of certain land, attempts to dispose of all the land as if he owned it in fee, devisees of a portion of the land under the will who are also entitled under the intestate laws to share in the undivided half of the land not owned by the testator cannot claim both as devisees of the testator and as heirs at law of the testator’s deceased co-owner and are put to their election between the two positions, but their acceptance of the devises under the will subsequent to the testator’s death will not bind them as by an election where such acceptance was made in total ignorance of a material fact a knowledge of which was necessary to enable them to make an intelligent choice. In such case, if the devisees later come into possession of the full facts and desire to take under the intestate laws their shares in the undivided half of the land not owned by the testator they are again put to an election between their two inconsistent claims and their action in filing a bill asking for partition in accordance with their interests under the intestate laws as heirs-at-law of the testator’s deceased co-owner will be held an election to reject the benefits conferred by the will; but, in so electing to take under the intestate laws they must compensate another devisee who by reason of their election has been disappointed in not receiving the benefits given him by the testator’s will.

      Decedents’ estates — Wills—Donee claiming adversely- — Election—Disappointed donee — Compensation.
    4. Where a donee under a will elects to claim property adversely to the will equity treats the gift to such recusant donee as a fund or source of fund for the compensation of donees disappointed by such election.
    Argued Oct. 10, 1910.
    Appeal, No. 190, Oct. T., 1910, by William D. Houston, a defendant, from decree awarding partition of C. P. Lawrence Co., March T., 1908, No. 4, in case of Polly Permelia Cooley et al. v. William D. Houston, John Clark, George Clark and Elsie Trask.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity for partition of real estate. Before Porter, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree of the court.

      5. W. Dana, with him Richard F. Dana, for appellant.
    The plaintiffs are so clearly out of possession that partition cannot be had: Longwell v. Bentley, 23 Pa. 99; Galbreath v. Galbreath, 5 Watts, 146; Law v. Patterson, 1 W. & S. 184; McMahan v. McMahan, 13 Pa. 376; Martin v. Martin, 17 S. & R. 431; McMaster v. Carothers, 1 Pa. 324; Mercur v. Jackson, 3 Pa. C. C. Rep. 387.
    January 3, 1911:
    The doctrine of compensation may be considered as fully established: Gretton v. Haward, 1 Swanst. 433, note; Hamilton v. Buckwalter, 2 Yeates, 389; Cauffman v. Cauffman, 17 S. & R. 16; Stump v. Findlay, 2 Rawle, 168; Preston v. Jones, 9 Pa. 456; Plummer v. Neile, 6 W. & S. 91; Fulton v. Moore, 25 Pa. 468; Armstrong v. Walker, 150 Pa. 585; Tomkins v. Merriam, 155 Pa. 440; Cummings’s App., 153 Pa. 397.

      C. H. Akens, of Akens, Wilkison, Lockhart and Chambers, with him J. Norman Martin, for appellees.
    In partition proceedings a mere assertion of title by a claimant unsupported by conveyance of proof of any kind does not show such a case of disputed title as deprives the court of jurisdiction: McCorkle’s Est., 184 Pa. 626; Appeal of Wistar, 115 Pa. 241; Muenich’s Est., 52 P. L. J. 191; Galbraith v. Bowen, 5 Pa. Dist. Rep. 352; McMahon’s Est., 211 Pa. 292; Sanders’s Est., 41 Pa. Superior Ct. 77.
    Nothing else than unequivocal acts will prove an election and they must be done with knowledge of the facts: Woodburn’s Est., 138 Pa. 606; Cox v. Rogers, 77 Pa. 160; Miller’s Est., 159 Pa. 562; Kreiser’s App., 69 Pa. 194; Dickinson v. Dickinson, 61 Pa. 401; White’s Est., 23 Pa. Superior Ct. 552.
   Opinion by

Mr. Justice Mestrezat,

This was a bill filed for partition of 162 acres of land in Lawrence county. The case was heard on the bill and answer, no replication was filed and no testimony was taken. The facts, therefore, appear by the pleadings.

Hamilton Houston owned a farm of 162 acres in Lawrence county. The title passed from him, apparently by deed, to his two sons, James and William, on or about May 30, 1876. On that date the sons gave him a mortgage in the penal sum of $10,000 conditioned for the payment of certain moneys for the support of their father and mother. The deed has disappeared but the mortgage is of record. It is averred and not denied that on February 14, 1879, James and William were tenants in common in fee of the farm. James died on that day, intestate, leaving a widow, Eliza J., but no issue. In March, 1879, William conveyed an undivided one-half interest in the farm to Hamilton Houston, and about the same date Eliza J. Houston, the widow of James, delivered a deed to Hamilton purporting to convey to him the other undivided one-half interest in the farm. Hamilton continued in possession of the whole farm and paid the taxes thereon until his death in 1892. William lived with him. The parties apparently assumed that the deeds of 1879 had vested the entire title in Hamilton.

Hamilton Houston died, testate, in 1892 leaving to survive him a widow, who died in 1906, one son, William D., and six daughters, one of whom, Mrs. Clark, died in February, 1907. By his will, made in 1880 and probated in September, 1892, Hamilton gave to his widow the use of a room in the farmhouse and also “whatever is necessary to her comfortable support and maintenance in the manner of life to which she has been accustomed.” He then devised to William “sixty-two acres of the east end of the farm on which I now reside,” describing it by metes and bounds, and to his six daughters “the remainder of my farm .... aforesaid” describing it as adjoining the part devised to William, “and containing one hundred acres more or less.”

The house was on the sixty-two acre tract, and William took and has retained possession of the tract, subject to his mother’s rights, and has made valuable improvements. The daughters took and have retained possession of the 100 acre tract and have received the rents and profits. Neither William nor the daughters ever asserted any claim to the part of the land devised to the other, until shortly before the filing of the present bill.

This bill was filed early in 1908 by the five daughters and a son of the deceased daughter against William and three of the children of the deceased daughter for partition of the whole farm of 162 acres. It avers the facts stated above, and that on the death of James his undivided one-half descended under the intestate laws to his brother, William, and his sisters, subject to the right of the widow to the one-half part of James’s interest for her life, and subject to the right of his father and mother in James’s share for and during their joint lives and the life of the survivor of them. It is also averred that the interest of one of the sisters in the 100 acre tract was conveyed to the other five sisters in 1893. The plaintiffs claim their shares under the intestate laws in the sixty-two acres, devised to William by his father, as well as in the 100 acres devised to them, conceding that William is entitled, in the same way, to one-seventh of the one-half of each tract. They also claim that they have become the owners of their respective interests in the premises by descent, by will and by deed. In his answer, William avers that by taking under the will, the daughters made an election and cannot now claim any interest in the sixty-two acres. He disclaims any interest in the 100 acres. The plaintiffs amended their bill and averred that until after their mother’s death in 1906, they had no knowledge that James ever had any title to the land in his lifetime, but allege that William had such knowledge. William replies to the amended bill that the conveyance to him and James by their father was a family arrangement, not concealed, and there is no reason why it was not known to all the members of the family; that James’s interest, at his death, was incumbered by the mortgage, and was of little if any value; and that he, from the time of James’s death (and the reconveyances) always supposed his father owned the entire farm.

William Houston, one of the defendants, contends (1) that he held the sixty-two acres adversely to the plaintiffs and hence they are not entitled to have partition; (2) that they are now («topped from making their present

claim by their election; and (3) that they cannot take both under and against the will.

The learned court below held that no adverse title in William was shown, such as ousted the jurisdiction in partition; that the alleged election did not contain the necessary elements to constitute an estoppel; and that the improvements made on the land, the payment of taxes and the receipts of the rents and profits could all be ascertained and adjusted in this proceeding. The court further held that the daughters could retain their shares in James’s estate under the intestate laws, and also take under the will to the extent that the testator had an estate to give them. A decree was accordingly entered as prayed for in the bill, and a master was appointed to make partition. William D. Houston, the defendant, has appealed from this decree.

We agree with the learned court below that the answer sets up nothing which would oust its jurisdiction to make partition of the farm. The facts appear by the bill and answer, and there was no adverse possession nor adverse legal title shown. There is no issue of fact raised. The bill avers the title at the death of Hamilton Houston as set out above. He had the title in fee simple to only the undivided half of the farm. By virtue of the deed from Eliza J., the widow of James, he also had her interest which was a life estate in the one-half of James’s undivided half, and he and his wife had a life interest in the other one-half of James’s undivided half interest. After the life interests, William and the daughters took James’s' undivided half interest in remainder. The daughters aver this legal title in them and with their interests under the will make it the subject of the bill for partition. In his answer, William does not deny that at the death of his father the title was different from that alleged in the bill, nor does he assert any facts tending to show an adverse legal title in himself. The material averments of his answer are as follows: ‘‘Immediately upon the death of the said Hamilton Houston I entered upon the full possession of the sixty-two acres of land devised to me under and by virtue of the said will and have held and enjoyed the exclusive possession and ownership thereof paying the taxes thereon the same being assessed in my name to the present time, subject to the interest therein of my mother under said will. . . . And I have never made any claim whatever to any interest in the land so accepted by them (the sisters), nor have my said sisters made or set up any claim to the land devised to me as aforesaid until a short time previous to the filing of the bill in this case. ... I also claim to be the owner in severalty and in fee of the sixty-two acres so as aforesaid devised to me in and by the said will and that my sisters have no interest whatever in the same.” The last clause of the answer is predicated on the equitable doctrine of election which is invoked by William in the immediately succeeding paragraph of his answer.

There is no dispute as to the undivided half which William owned and conveyed to his father. The latter unquestionably had a right to devise that interest in the farm. The dispute arises over the other undivided half, owned by James at the time of his death. It will be observed that the answer does not deny that James died intestate owning the undivided one-half of the farm, and that his interest was not conveyed to his father. Then, as disclosed by the pleadings, if there was nothing else to prevent, the plaintiffs and the defendants would take James’s undivided half under the intestate laws and the court had jurisdiction to make the partition. The only ground for the contention that William holds the sixty-two acres adversely to the plaintiffs is that, having accepted the 100 acres devised to them by their father and retained it until the present time, the plaintiffs are bound by this action, and the equitable doctrine of election prevents them from now asserting their right to James’s interest. There is, therefore, no question of fact raised by the pleadings to be adjudicated. It is simply a question of law under the facts admitted by the pleadings whether the defendant is and has been holding the sixty-two acres adversely to the plaintiffs so as to compel them to establish their title in an action at law before demanding their right to partition in a court of equity. Under these circumstances, equity has jurisdiction to determine the question and to make partition: Wistar’s App., 115 Pa. 241; Welch’s App., 126 Pa. 297; McCorkle’s Est., 184 Pa. 626; Bishop’s Est., 200 Pa. 598; McMahon’s Est., 211 Pa. 292; Carey v. Schaller, 16 Pa. Superior Ct. 350; Church’s App., 17 W. N. C. 541, 7 Atl. Repr. 751. If the facts set up in the pleadings disclosed a dispute as to the title, the plaintiffs would be compelled, before they could demand partition, to establish their title in an action at law. The titles of the parties to land cannot be determined in a proceeding in partition. But to justify the suspension of the proceedings in partition on the ground that the defendant holds the land adversely to the plaintiffs, he must set up in his answer more than a mere denial of the tenancy in common. He must aver facts which if established in a common-law action will show that he is holding adversely to the claim of the plaintiffs. It would be idle to suspend partition proceedings and compel the plaintiff to go into a common-law court and establish his title, when it appears from an inspection of the pleadings there is no adverse title, and the court on the trial would be compelled to direct a verdict for the plaintiff. In the present case, William does not hold adversely unless under the facts as disclosed by the pleadings he can invoke the equitable doctrine of election and thereby estop the plaintiffs from now asserting their rights in James’s undivided one-half of the real estate. A court of equity can determine this question which is one of law and not of fact as well as a court of law, and thereby save the delay and cost incident to an ejectment suit. We think the court below had power to entertain the bill.

There is no doubt that the plaintiffs on the death of their father were put to their election whether they would take under the will or would assert their rights as heirs at law of their brother James and take their share in his undivided one-half of the premises under the intestate laws. It was clearly a case for election by both parties. Neither the daughters nor the son could take under and against the will. If either accepted the donation under the will, he was required to renounce his right to an interest under the intestate laws in James’s share of the realty. If he elected to take his share under the intestate laws, he was compelled to make good the testator’s attempted disposition by compensating the disappointed legatee or devisee. In 1 Pomeroy’s Eq. Jur. (2d ed.), sec. 395, the learned author says: “This doctrine (of election) involves a notion that no man can claim inconsistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect to that instrument; he cannot both accept and reject it, or avail himself of its benefits as to a part, and defeat its provisions as to other parts. . . . The donee is entitled not to both, but to the choice of either.” It is also equally clear that the testator attempted to dispose of the whole farm of 162 acres as if he owned it in fee, and not simply his undivided interest therein. He devised to William “sixty-two acres of the east end of the farm on which I now reside” and then described it. He devised to his six daughters ‘ ‘ the remainder of my farm .... adjoining and lying northwest from the part heretofore devised to my son .... containing one hundred acres.” While the testator is presumed to have intended to bequeath or devise only his interest in the property, and the presumption is not rebutted by general words of description and donation, yet if he devises or bequeathes the property by words of description and donation importing an intent to give the entirety, a co-owner who receives a benefit under the will is put to his election: 1 Pomeroy’s Eq. Jur., sec. 489; Little’s App., 3 Walker, 225. The testator in the present case in making the devises used words importing ownership of the entire farm and devised specific portions of it. His language clearly indicates his intention to give a fee-simple title to the respective devisees. They were, therefore, put to their choice between the two inconsistent or alternative claims.

We do not agree with the contention of the defendant, Houston, that the plaintiffs are estopped from asserting their claim by reason of their conduct in accepting the devises and bequests made to them in the will. It is averred in the amended bill that prior to January, 1906, ■the plaintiffs had no knowledge of the fact that their brother James Houston died seized of the undivided one-half interest in the lands in question, and that in all their acts and transactions subsequent to the death of their brother and father they understood and believed that the full title to the lands was vested in their father at the time of his death. This is not denied in the answer. If, therefore, it be conceded that the acts of the plaintiffs subsequent to their father’s death in accepting the devise of the 100 acres amounted to ah election, it is clear that it was done in total ignorance of a material fact, a knowledge of which was necessary to enable- them to make an intelligent choice. In such case it is settled that the party making the election is not bound by his act: Miller’s Est., 159 Pa. 562; Woodburn’s Est., 138 Pa. 606; Cox v. Rogers, 77 Pa. 160; Dickinson v. Dickinson, 61 Pa. 401; Kreiser’s App., 69 Pa. 194. It was upon this ground that the learned court below held that they were not estopped from now asserting their rights to their brother James’s interest in the land, and that they could maintain this bill for partition. In its final opinion, the court says: “With this proposition (that the plaintiffs were bound by their election and estopped from making a claim contrary to the will) we could agree if the daughters had known their rights in the premises at the time they entered into possession of the one hundred acres; but at that time they did not know that their brother James had died seized of an undivided one-half of the .one hundred and sixty-two .acres.”

The learned court concedes that the plaintiffs were put to their election after the death of their father whether they would accept the devise given them by the will or claim their interest as heirs in their brother James’s undivided one-half of the farm. Having successfully invoked the aid of the court in avoiding the effect of their acceptance of the devise under the will, they are restored to the position they occupied in 1892, immediately after their father’s death and before they accepted the provisions of the will. Does it not necessarily follow that they are now required to make their election between the two inconsistent claims the same as they did immediately after their father’s death? In other words, can they secure the benefit accruing to them by having their acceptance of the will avoided without incurring the consequences, one of which is that they must now make their choice between taking the undivided one-half of the premises under the intestate laws and the donation of the will? As pointed out above, this is a case requiring an election, and the plaintiffs must make their choice before they can demand any part of the farm. They were not concluded by their former election because it was done in ignorance of the facts; now they are fully advised as to the facts and they are, therefore, put to their election. When they were advised of the facts, and of their rights arising therefrom, they could have done one of two things: abide by their acceptance or have it nullified on the ground of their former ignorance of the facts. They chose the latter course, and were thus placed in statu quo with a like duty to make an election and were compelled to do so. It is similar to the case of a widow who makes an election between the donations of her husband’s will and her rights under the intestate law. She may avoid the choice made in ignorance of the facts but when she does so she is compelled again to make her election. “There are undoubtedly decisions,” says Strong, J., in Bradfords v. Kents, 43 Pa. 474, 485, “that a widow may elect dower even after she has claimed and received the legacy or devise made to her, but she may not receive and hold the benefits conferred by the will of her husband, after the extent of her rights has become known to her, and then retract her election.”

Having been relieved from the effect of their acceptance of the provisions of the will, and it now being their duty to make their election, we must treat the action of the plaintiffs in demanding partition of the farm in accordance with their interests in James’s undivided one-half thereof finder the intestate laws as an election to reject the benefits conferred by the will. They had full knowledge of all the facts at the time they filed this bill, and in thus asserting their right to James’s interest in the real estate they must be regarded as electing to take such interest in the property instead of the devise and legacy given them by the will. They cannot, however, take James’s interest under the intestate laws without compensating their brother William for his disappointment in not receiving the benefits given him by his father’s will. To the extent that he is injured by their election to take against the will he is entitled to compensation out of that portion of the estate which was devised or bequeathed to the plaintiffs. They cannot hold the share of their father’s estate devised or bequeathed to them and at the same time defeat the devise given to William. Equity will compel them to make compensation to William for his disappointment. Of the two inconsistent rights, they may take but one, they cannot take both. The condition imposing the obligation of an election says that the donee shall confirm the will, or else, out of the testator’s property given to him by the will, he shall make compensation to the third person, who is disappointed by his choice: 1 Pomeroy’s Eq. Jur. (2d ed.), sec. 467. In Lewis v. Lewis, 13 Pa. 79, Chief Justice Gibson says (p. 82): “Now, all the authorities show, that equity relieves, in a case of the kind, on the ground of trust. The devise passes the legal title; but a chancellor holds the recusant devisee bound, as a trustee, to compensate the devisee he has disappointed.” In Armstrong v. Walker, 150 Pa. 585, Heydrick, J., speaking for the court says (p. 587): “It is a maxim of the law that whoever will avail himself of a testator’s bounty shall not disappoint his will. The converse proposition, that whoever disappoints the will of a testator shall have nothing under it, is equally true, at least to the extent of the disappointment. In such cases equity treats the gift to the recusant object of the testator’s intended bounty as a fund or source of a fund for the compensation of disappointed legatees or devisees.”

We are of the opinion that the learned court was right in holding that it had jurisdiction to make the partition and that the acceptance by the plaintiffs of the devise under the will, having been made in ignorance of the facts necessary to an intelligent election, was not binding upon them and did not estop them from asserting their rights when they became fully advised of the facts. We think, however, that the court was in error in holding that they were entitled to take their interest in James’s undivided one-half of the estate and also an interest under the will without compensating their brother William to the extent of his disappointment. The case must, therefore, be remanded that it may be proceeded in the court below in accordance with the views herein expressed.

The decree is reversed with a procedendo.


author: Mr. Justice Potter,

text:
    Hobel v. Mahoning & Shenango Railway & Light Company, Appellant.

      Negligence — Street railways — Right-angled collisions — Crossing—Approaching car — Case for jury.

    •1. In an action for damages for personal injuries sustained in a collision between a car and plaintiff’s wagon at a right-angled crossing of the tracks of an electric railway at intersecting city streets, the case is for the jury where there is evidence on the part of the plaintiff tending to show that when his horses were right at or upon the track, the car which came upon him was 150 feet distant.

      Evidence — Earning capacity — Past employment in different capacity— Measure of damages — Net earning.

    2. In an action for damages for personal injuries it is error to admit testimony, against defendant’s objection, as to the earning capacity of the plaintiff at a period seven years before the accident, while employed in an entirely different capacity.
    3. To permit the plaintiff in a damage suit to show only the gross receipts of his business, in his testimony as to the amount of his damages, without deducting necessary costs and expenses, so as to arrive at his net earnings, and to offer no proof as to the loss of earnings by reason of the accident, must tend to mislead the jury, and is ground for a reversal of a judgment in his favor.

      Appeals — Paper-books—Specifications of error — Ride SI.

    4. Failure of counsel to observe rule 31 relating to the pages of the paper-book in preparing specifications of error, is sufficient ground for ignoring assignments. '
    Argued Oct. 11, 1910.
    Appeal, No. 192, Oct. T., 1910, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1908, No. 34, on verdict for plaintiff in case of Charles Hobel v. Mahoning & Shenango Railway & Light Company.'
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass for personal injuries. Before Porter, P. J.
    The accident which caused plaintiff’s injuries occurred at the intersection of Lyndal and Hamilton streets, in the city of New Castle. The plaintiff was driving west on the former street, and as he approached the house line of the latter, upon which defendant’s tracks were laid, he testified that he stopped, looked and listened at a place where he could see 150 feet in the direction from which the car came. Hearing nothing he drove on. Then, he says, “I drove a little further over the sidewalk and looked, and couldn’t see no car, then I drove further.” His testimony was that he kept looking at intervals, but ■not until his horses were entering on the track did he see the car, coming at a high rate of speed about 150 feet away,

      The body of the wagon in which plaintiff was driving was inclosed, having frame sides and end and a roof over all, with a door on each side and a window in front. Plaintiff was standing between these open doors in front of the seat when struck. There were trees lining the curb of Hamilton street. The accident occurred in the forenoon of July 16, 1908.
    Verdict and judgment for plaintiff in the sum of $2,926.12. Defendant appealed.

      Errors assigned among others were (1) in refusing binding instructions for defendant; (3) in admitting testimony of plaintiff as to his earnings when he worked in a mill seven years previously; (5) in overruling motion to strike out testimony of plaintiff, which motion was in part as follows:
    Counsel for defendant moves the court to strike out that part of the testimony of this witness in which he testifies to the amount of money he made out of the milk business, $7.00 per day, as there is involved in that, according to his cross-examination, his own labor and the labor of his wife and children, two of them about of age; the use of the farm and the care of the dairy of eighteen cows and the delivery of the milk by horses and wagon, which would not be a profit of the labor or the effort of the plaintiff, and would not be the amount of money that he would take in; it would not even be the profits of the milk business, consisting of all these different things, and the labor of these different persons, and it is therefore not evidence of the measure of the depreciation of the power to earn but at most it relates to the money received and the profits made out of a business involving the labor of many persons and the use of the farm land and dairy of eighteen cows, horses, wagons and also other things.
    Also to strike out the testimony of this witness as to the receipt of $300 or $400 a year from the farm, that being his testimony that the farm brought in from $300 to $400 per annum, when upon cross-examination it appears that there were himself, two boys of about full age, and three other children and his wife all helping to manage and conduct and operate the farm and that the $300 or $400 would not represent his earnings, but would represent what had been received from the crops raised on the farm by the labor of all.
    January 3, 1911:

      C. H. Akens, of Akens, Wilkison, Lockhart and Chambers, for appellant.
    As to the admission of testimony concerning the earnings of plaintiff in a different pursuit seven years before, cited: West Chicago St. R. R. Co. v. Maday, 188 Ill. 308; Chicago & Joliet Elec. Ry. Co. v. Spence, 213 Ill. 220; Olin v. Bradford, 24 Pa. Superior Ct. 7.
    The evidence of the gross receipts, not representing the plaintiff’s earnings, or even the exclusive product of his unaided labor, should not have gone to the jury: Peters v. Bessemer, etc., R. R. Co., 225 Pa. 307; McKenna v. Gas Co., 198 Pa. 31.

      Charles R. Davis, with him Oscar L. Jackson, for appellee,
    cited as to measure of damages: Buckman v. P. & R. Ry. Co., 227 Pa. 277; Wallace v. Penna. R. R. Co., 195 Pa. 127; Hanover Branch R. R. Co. v. Coyle, 55 Pa. 396; Penna. R. R. Co. v. Dale, 76 Pa. 47.
   Opinion by

Mr. Justice Potter,

Upon the question of the negligence of the defendant and the contributory negligence of the plaintiff, there was evidence sufficient to take this case to the jury. The accident happened at a right-angled crossing of the tracks of the street railway of the defendant in the city of New Castle, and there is testimony upon the part of the plaintiff tending to show that when the horses were right at or upon the track, the car which came upon him was 150 feet away. Under these circumstances the court .could not properly have said, as matter of law, that the plaintiff was guilty of contributory negligence in attempting to cross the street railway tracks. The first and second assignments therefore, which allege that the court below erred in refusing binding instructions, and in not entering judgment non obstante veredicto for the defendant, are dismissed. The trial judge did err, we think, in admitting testimony against defendant’s objection, as to the earning capacity of the plaintiff at a period seven years before the accident, and while employed in an entirely different capacity. The time was too remote from the date of the accident, and the circumstances were very different. For these reasons we sustain the third assignment. There are other specifications which allege error in the admission of testimony as to the measure of damages sustained by the plaintiff, and these assignments we think must be sustained.

Plaintiff was engaged in the production and sale of milk, and in farming. At the trial no proof was offered of the amount of his earnings in his business, or as to the loss of earnings by reason of the accident. As we understand the evidence, he showed merely his gross receipts from the sale of milk, being the sum of $7.00 per day; and also his gross receipts from the sale of other produce of his farm. These amounts did not of course represent his net earnings, for they would not appear until the necessary costs and expenses had been deducted. The evidence does not show that any such deduction was made. The result of his testimony as to the amount of his damages must, therefore, have tended to mislead the jury. The instructions asked for in behalf of defendant, in the fifth and sixth points submitted for charge, should have been affirmed.

In the preparation of his paper-book, counsel for appellant lost sight of the requirements of rule 31; for several of his specifications of error which quote testimony admitted, contain no reference to the pages of the paper-book where the matter may be found in its regular order in the printed evidence. This would be sufficient ground for ignoring these assignments. In a large record such as this, the failure of counsel to observe the rule entails considerable extra labor upon this court.

Owing to the failure to show plaintiff’s net earnings, the judgment is reversed, with a venire facias de novo.


author: Mr. Justice Moschziskeb,

text:
    Thaler Brothers v. Greisser Construction Company, Appellants.

      Mechanic’s claim, — Building contract — Arbitration by architect — Retention of certificate of approval — Good faith — Instructions of court.

    1. Where a subcontractor has entered into a contract with a construction company, the main contractor, to construct certain tubs for a brewery in course of erection, by the terms of which contract the construction company is expressly designated as “owner,” and it is provided that the work shall be done “under the direction and to the satisfaction of the construction company, architect, acting for the purposes of this contract as the agent of the owner,” with the further provision that “all payments shall be made upon written certificate of the architect that the payment has become due.” and the real owner seeks to defend against a sei. fa. sur mechanic’s lien for a balance due for work done on the ground that the work was deficient in several particulars and that the plaintiff has failed to produce a certificate from the architect that any balance is due, an instruction to the jury making the good faith of the construction company in withholding their approval of the work the test of the sufficiency of its defense is fair and proper.
    2. Such a case in its facts is to be treated rather as one in which work or material is to be satisfactory to the party acquiring it, than as one in which it must be satisfactory to a third party designated as arbiter.
    3. The physical production of the architect’s certificate in such a case is not an absolute prerequisite to the right of recovery.

      Evidence — Verdict—Inference of feigned dissatisfaction.

    4. A verdict for plaintiff on sci. fa. sur mechanic’s lien is sustained by evidence that the work was properly performed, that no specific reason was offered for the failure of the principal contractor to give a certificate of proper performance upon request, that after the completion of the work the owners expressed satisfaction with it and acknowledged their liability on several occasions, finding no fault at that time, nor in fact till after the filing of the lien; and that certain of the appliances furnished were still in use after three years and giving no material trouble; which evidence if believed is sufficient to justify the conclusion that the dissatisfaction was feigned and that the certificate was arbitrarily withheld.

      Appeals — Res adjudícala.

      5. Where on a previous appeal the Superior Court has adjudicated the same question on practically the same facts, and it is clear that it understood the existence and use of a letter upon a reference to which by a witness under cross-examination the defendant rests its whole contention that the judgment of i.he appellate court should not be taken as a controlling guide, it is not error to treat the matter as finally disposed of, particularly so when the record discloses that the claim is probably an afterthought.
    Argued Oct. 11, 1910.
    Appeal, No. 37, Oct. T., 1910, by defendant, from judgment of C. P. Butler Co., Dec. T., 1909, No. 234, on verdict for plaintiffs, in the case of August Thaler and William Thaler, copartners, trading as Thaler Bros., v. Wilhelm Greisser Construction Co., contractors, and the Butler Brewing Company, owners or reputed owners.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Sci. fa. sur mechanic’s lien for balance of $1,370. Before Galbreath, P. J.
    The facts appear in the opinion of the Supreme Court.
    Plaintiffs presented this point:
    2. The Greisser Construction Company, being the architect, agent and contractor of the Butler Brewing Company, owner, its opinion and decision on all matters relating to work, material, alterations, etc., are not binding and conclusive unless the evidence in the case justified that conclusion. It cannot decide the matter arbitrarily, but must have sufficient reason therefor. Answer: Under the circumstances in this case the failure of the Greisser Construction Company to express its satisfaction with the work done by the plaintiffs, if such be the case, is not conclusive, if its failure or refusal was without reason and arbitrary, and in that account wrongful.

      Defendants presented these points:
    4. The alleged notice of plaintiffs to the owner of their intention to file a lien failed to attach thereto a copy of the specifications which were an essential part of the contract and without which the lien is invalid. Answer: Under the evidence in this case and the adjudication of the Superior Court this point is denied.
    7. Under all the evidence in this case, the verdict should be for the defendants. • Answer: Refused.
    The jury found a verdict for full amount of plaintiffs’ claim, with interest on which judgment was entered.

      Errors assigned, among others, were (1-3) the court’s answers to points, as above.

      A. M. Neeper, with him C. L. McQuistion and J. B. D. Huston, for appellants.
    It is settled law that where in a building contract a condition precedent to the right to recover is that the work shall be done to the satisfaction of the architect, a contractor cannot recover except on showing a determination by the parties selected and in the manner specified: Monongahela Nav. Co. v. Fenton, 4 W. & S. 205; Lauman v. Young, 31 Pa. 306; Fulton v. Peters, 137.Pa. 613; Barclay v. Deckerhoof, 171 Pa. 378; Frederick v. Margwarth, 221 Pa. 418; Hostetter v. Pitts-burg, 107 Pa. 419; Hartupee v. Pittsburg, 131 Pa. 535; Sicilian Asphalt Paving Co. v. Williamsport, 186 Pa. 256; Payne v. Roberts, 214 Pa. 568.
    It is absolutely necessary that the plaintiff should allege the issuing of the certificate or that it was fraudulently withheld: McNally v. Montour R. R. Co., 33 Pa. Superior Ct. 51; Fay v. Lester Piano Co., 39 Pa. Superior Ct. 87; Hunn v. Penna. Institute, 221 Pa. 403.

      John M. Greer, with him Frank E. Lord, John B. Greer, Thomas H. Greer and John M. Greer & Sons, for appellees.

      January 3, 1911:
   Opinion by

Mr. Justice Moschziskeb,

This was a mechanic’s lien proceeding in which Thaler Brothers, subcontractors, were plaintiffs, and the Butler Brewing Company, owner, and the Wilhelm Greisser Construction Company, contractor, were defendants. The verdict was for the plaintiffs for the full amount of their claim with interest, and the defendants have appealed.

The claim was founded upon a written contract dated September 25, 1902. Throughout this contract the plaintiffs are designated as “the contractor,” and the construction company as “the owner;” and it is therein provided, “The contractor under the direction and to the satisfaction of Wilhelm Greisser Construction Company, architects, acting for the purpose of this contract as agents of the said owner, shall and will provide all the materials and perform all the work mentioned in the specifications and shown on the drawings prepared by the said architects for the eleven (11) pressure tubs for the Butler Brewery, Butler, Pa., delv. and set up, as per specifications at above Brewery, which drawings and specifications are identified by the signatures of the parties hereto.” It is also provided: “The architects shall furnish to the contractor such further drawings and explanations as may be necessary to detail and illustrate the work to be done,” and “It is hereby mutually agreed .... that the sum to be paid by the owner to the contractor for said work and material shall be $2,750. . . . All payments shall be made upon written certificates of the architects to the effect that such payments have become due.” Further, “It is ... . agreed .... that no certificates given or payments made under this contract except the final certificate or final payment shall be conclusive evidence of the performance of this contract, either wholly or in part, and that no payment shall be construed to be an acceptance of defective work or improper material.”

The plaintiffs claimed that their work had been properly performed and that a balance of $1,370 was due and unpaid. In addition to a defense that the tubs were deficient in several particulars, which defense was correctly and fairly submitted to the jury, the defendants contended on other grounds that the plaintiffs should not be allowed to recover.

The plaintiffs failed to produce a certificate from the architects that the balance claimed was due them. Their testimony was that while they had received payments on account during the progress of the work, they had never received a certificate from the architects; that upon the completion of the work they made a demand for such a certificate; that the certificate was not given, but at that time the construction company sent them a check for $500 on account, which check was returned marked “no funds;” and that no fault had been found with their work or material until after the filing of the mechanic’s lien. No specific reason appears to have been assigned for the failure or refusal to give the certificate. The plaintiffs showed that after the completion of the work the head brew-master of the brewery expressed satisfaction with the tubs in the presence of Mr. Greisser, a representative of the construction company, and of Mr. Smith, the president of the brewing company; and that Mr. Greisser made no complaint at that time; that in point of fact Mr. Greisser had never made any complaint, although Mr. Smith in 1904 after the filing of the lien said for the first time that “the tubs was not good.” One of the plaintiffs testified that in 1903 prior to the filing of the lien, in an effort to secure the money due them, he had met Mr. Greisser and had been referred by him to Mr. Smith who said he would not “pay out money until Mr. Greisser gets through completely,” but found no fault with the work and offered the witness “two $1,000 second mortgage bonds for the brewery for our amount that was due the Greisser Construction Company;” that at a later date subsequent to the filing of the lien, when the brewery was running and the tubs were in use, the witness again saw Mr. Smith who told him “that he had $2,700, holding back from the Greisser Construction Company and said that I would have to get the money from them and that they would pay Mr. Greisser just as soon as he got through with the buildings and the contractors;” Smith then for the first time said that “some of the tubs down there had worm-holes in them.” The tubs are still in use at the brewery, and one of the witnesses for the defense stated that they had not had any material trouble with them for the last three years.

The trial judge instructed the jury that if the declara-,, tion of dissatisfaction by the construction company was made in good faith, it was a sufficient defense and the! plaintiffs could not recover; on the other hand, if it was| not made in good faith, but was merely an arbitrary ex-f pression of dissatisfaction for the purpose of avoiding,) payment of the balance due on the contract, then would not be a good defense.

In considering these instructions, it is to be borne in mind that the lien was not filed under a contract between the brewing company, the real owner, and the construction company, the main contractor, but under a contract between the latter company and the plaintiffs in which the brewing company is nowhere referred to as the owner. On the contrary the construction company is expressly designated as owner, and it is provided that the work shall be done “under the direction and to the satisfaction of Wilhelm Greisser Construction Company, architects, acting for the purpose of this contract as agents of said owner.” In other words for the purposes of the contract the construction company was the owner, the agent of the owner and the architect.

In Pennsylvania two classes of cases involving con-i tracts requiring satisfactory performance have given rise 1 to two lines of decisions, the first of which is most aptly illustrated by Singerly v. Thayer, 108 Pa. 291, and the other by Payne v. Roberts, 214 Pa. 568. (The former of these eases lays down the rule to be applied' where the work or material is to be satisfactory to the party acquiring it, and the latter ,where it must be' satisfactory , to a third party designated as arbiter. Under the first rule the question for determination is not as to whether "or not the one complaining ought to be satisfied, but Solely as to the good faith of the dissatisfaction alleged. i‘To justify a refusal to accept .... on the ground that it is not satisfactory, the objection should be made in good faith. It must not be merely capricious:” Singerly v. Thayer, 108 Pa. 291; followed in Krum v. Mersher 116 Pa. 17; Seeley v. Welles, 120 Pa. 69; Sidney School Furniture Co. v. Warsaw School District, 130 Pa. 76; Howard v. Smedley, 140 Pa. 81; Adams Radiator, etc., Works v. Schnader, 155 Pa. 394. Under the second rule it is not a question of the good faith of the dissatisfaction alleged; there, in order to maintain the action the claimant .must show that the expression of dissatisfaction was the result of fraudulent collusion between the arbiter and the owner: Payne v. Roberts, 214 Pa. 568. Also see Pittsburg Terra-Cotta Lumber Co. v. Sharp, 190 Pa. 256; Brown v. Decker, 142 Pa. 640; Hostetter v. Pittsburg, 107 Pa. 419; Reynolds v. Caldwell, 51 Pa. 298; McNally v. Montour R. R. Co., 33 Pa. Superior Ct. 51.

In the present case, while the mere fact that the construction company had a direct interest in the matter in controversy would not debar it from acting as a designated arbiter (Monongahela Navigation Co. v. Fenton, 4 W. & S. 205), the fact that it was the owner for the purposes of the contract and the architect who was to act as the arbiter and issue the certificates, coupled with the circumstance that it was the party with whom the plaintiffs were actually contracting, makes this an instance where the first rule is applicable rather than the second. Owing to the different relations in which the construction company stood toward the plaintiffs, the character of its alleged dissatisfaction and the failure to give the certificate were bound together as one question, the determination of which turned upon the finding of the jury as to the company’s good faith in withholding its approval of the tubs; and that issue was fairly and properly submitted to the jury.

It only remains to determine whether there was sufficient evidence to sustain the jury’s finding in favor of the plaintiffs. While much of the evidence to which we have heretofore referred was denied by the defendants, yet the credibility of the witnesses was for the jury, who had a right to draw their own inferences. We cannot say that there was not sufficient evidence to justify the conclusions that the dissatisfaction alleged was feigned for the purpose of avoiding payment under the contract and that the certificate was arbitrarily withheld. The physical production of the final certificate was not an absolute prerequisite to the right of recovery: Hunn v. Pennsylvania Institution for Instruction of the Blind, 221 Pa. 403.

Although there was testimony introduced on both sides concerning the alleged defects in the tubs, the defendants made no claim for reduction of damages as in Stutz v. Coal & Coke Co., 131 Pa. 267, and Loeper v. Haas, 24 Pa. Superior Ct. 184. The defense was placed upon the issues already disposed of and upon one other ground which we shall now consider.

The defendants contended that the notice of the lien and the lien itself were invalid owing to the absence of certain specifications. This question was raised on a former trial and adjudged in favor of the defendants; but on appeal to the Superior Court the judgment was reversed: Thaler v. Greisser Construction Co., 40 Pa. Superior Ct. 331. The defendants insist that the decision of the Superior Court was not based on the facts as they now appear in the case. They contend that the specifications that should have been attached to the notice and to the lien were not those specially referred to in the contract, but were certain other specifications contained in a letter written by the construction company to the plaintiffs.

It is true that on cross-examination one of the plaintiffs was made to refer to the contents of this letter as the specifications. Upon this testimony the defendants rest practically their whole contention that the judgment of the Superior Courfr on the point in question should not ■ have been taken as a controlling guide by the trial judge. However, when wé look at the opinion it is clear that the Superior Court had the facts substantially as they appear before us and that they fully understood the existence of this letter and the use to which it had been put. Furthermore, in the affidavit of defense which was offered in evidence the only complaint concerning the absence of specifications alludes specifically to those referred to in the contract, a copy of which specifications the defendants annexed to the affidavit; the defendants offered this contract in evidence calling special attention to the provision that the materials were to be furnished and the work done as per the specifications mentioned therein; and we find upon the record a motion to strike off the lien because of the absence of these particular specifications.

It appears as if the claim that the contents of this letter comprised the specifications must have come to the defendants as an afterthought. However this may be, we feel that the trial judge committed no error in treating the matter as finally disposed of on the former appeal.

On a careful consideration of the entire record we find no reversible error. The assignments are all overruled and the judgment is affirmed.


author: Mr. Justice Moschzisker,

text:
    Stoner, Appellant, v. Pittsburg, Bessemer & Lake Erie Railroad

      Railroad — Eminent Domain —Widening Rood — Farm Crossings-— Acts of March 17, 1869, P. L. 12, and February 19, 1849, P. L. 79.

    1. Where a railroad condemns land for the widening of its right of way the failure to extend a farm crossing previously maintained amounts to a destruction of an easement appurtenant to the land appropriated and constitutes an element of damages in a proceeding under the Act of March 17, 1869, P. L. 12; but where the owner has claimed and been awarded damages in such a proceeding for the destruction of the causeway he cannot thereafter maintain a duty on the part of the railroad to give him another causeway or additional damages under the Act of February 19, 1849, P. L. 79. Davis v. Penna. R. R. Co., 43 Pa. Superior Ct. 119 distinguished.

      Railroads — Eminent domain — Statutory proceedings — Practice—Equity — Responsive answer — Introduction of additional facts.

    2. Where in a statutory proceeding the initial step is assimilated to a proceeding in equity, the subsequent pleadings, in the absence of directions to the contrary, are subject to the rules of equity practice.
    3. An answer in an equity proceeding is not made any the less responsive by the setting forth of all the fads, though some new matter may be introduced thereby.
    4. In a statutory proceeding to recover damages from a railroad for failure to extend farm crossings where the petition shows a proceeding already had “to recover damages for land taken and damage done to said farm” without any averment that the damages for the destruction of the causeways in question were not adjudicated in this prior proceeding, and the answer supplements the petition and avers that the destruction of these causeways was considered as an element in the other proceeding and that damages therefor were adjudicated and awarded to the plaintiff, and no general replication is filed and the answer is not excepted to, it is not error for the court to adjudge the petition in the light of the averments in the answer.
    Argued Oct. 11, 1910.
    Appeal, No. 51, Oct. T., 1910, by plaintiff, from order of C. P. Butler Co., June T., 1909, No. 38, refusing to appoint viewers in case of William J. Stoner v. The Pittsburg, Bessemer & Lake Erie Railroad.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.

      January 3, 1911:
    Petition for the appointment of viewers. Before Gal-breath, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was order of court discharging rule to show cause why viewers should not be appointed.

      John M. Greer, with him John B. Greer and Thomas H. Greer, for appellant,
    cited: Cameron v. Pittsburg & L. E. R. R. Co., 157 Pa. 617; Lilley v. Penna. R. R. Co., 219 Pa. 447; Port v. Huntingdon & B. T. R. R. Co., 168 Pa. 19.

      John H. Wilson, with him C. L. McQuistion, for appellee,
    cited: Marsh v. Lehigh & N. E. R. R. Co., 215 Pa. 141.
   Opinion by

Mr. Justice Moschzisker,

One of the plaintiff’s predecessors in title gave a railroad right of way through the farm referred to in this case. Subsequently, on May 15, 1897, a conveyance in fee was made to the defendant of the land covered by this right of way and of an additional strip bordering its eastern side, reserving two farm crossings or causeways across the railroad tracks. After this, in October, 1906, in order to widen its roadbed again, the defendant condemned a strip of land running along the western side of the original right of way, and in making this last improvement it destroyed the two causeways. Viewers appointed to assess the damages arising from this widening made an award of $1,800, from which the defendant appealed. The pleadings on the appeal show a claim for the destruction of the two causeways, and the jury was instructed that the condemnation involved the taking of these crossings. After receiving a verdict of $1,900, the plaintiff filed a petition asking for the appointment of viewers to assess damages against the defendant for its failure and refusal to give him another causeway.

The petition avers title and possession; that the defendant in 1906, “for the purposes of widening its roadbed” condemned certain land; that it afterwards “made large cuts and fills and absolutely destroyed and discontinued two farm crossings or causeways passing over said railway .... leaving the farm without any crossing or means of passage from one tract to the other;” that the petitioner had requested the defendant to make a crossing as required by law and it had neglected and refused so to do; and that the defendant had not made compensation to the owners “for the damages already sustained by them, or likely to be done or sustained on this account.” The petition makes reference to a prior “proceeding .... to recover damages for the land taken and damages done to the said farm” by the widening in question. The defendant filed an answer in which inter alia it set forth the facts as we have already detailed them. The court below dismissed the petition and the plaintiff has appealed to this court.

The plaintiff cites the recent case of Davis v. Penna. R. R. Co., 43 Pa. Superior Ct. 119, and contends thereon that, the petition being in due form and averring the necessary jurisdictional facts, the court was bound to appoint the viewers and the refusal so to do constituted reversible error. That case was decided sometime after the present one, and, so far as the record shows, the point now contended for was not raised or passed upon in the court below. However, the two cases are quite different. In the Davis case the petitioner alleged that his property had been divided by the railroad and that the defendant had refused to give him a causeway. The answer denied the refusal and averred that the defendant had constructed a crossing for the use of the plaintiff. Depositions were taken, the issue of fact was decided by the court in favor of the defendant, and the prayer of the petition was refused. On appeal the Superior Court held that viewers should have been appointed to pass upon the disputed question of fact. Here the material averments of the answer merely call attention to additional relative facts appearing of record in the court in which the proceedings were pending; the answer contains no direct denial of any of the facts averred in the petition, and no depositions were taken. Again, the Davis case was a proceeding under the twelfth section of the Act of February 19, 1849, P. L. 79, while the plaintiff’s petition was filed under the widening Act of March 17, 1869, P. L. 12.

The failure to extend a farm crossing previously maintained amounts to the destruction of an easement appur-. tenant to the land appropriated, and constitutes .an element of damage in a proceeding under the act of 1869: Lilley v. Pittsburg, etc., Ry. Co., 213 Pa. 247; Lilley v. Penna. R. R. Co., 219 Pa. 447. In the present case the plaintiff claimed damages because of the defendant’s failure to extend two such crossings. The petition shows a proceeding already had “to recover damages for land taken and damage done to said farm,” without any averment that the damages for the destruction of the causeways in question were not adjudicated in this prior proceeding. The answer supplements the petition and avers that the destruction of these causeways was considered as an element in the other proceeding and that damages therefor were adjudicated and awarded to the present plaintiff. “An answer is not made any the less responsive by the setting forth of all of the facts, though some new matter may be introduced thereby:” Fidelity Title & Trust Co. v. Weitzel, 152 Pa. 498. But the question is, could the responsive averments of this answer be taken as evidence in passing upon the petition?

Where in a statutory proceeding the initial step is assimilated to a proceeding in equity, the subsequent pleadings, in the absence of directions to the contrary, are subject to the rules of equity practice. According to present practice, if any matter alleged in the answer makes it necessary the plaintiff may amend his bill, or he may join issue by a general replication; and where no replication is filed the points in issue are decided on bill and answer. “No replication need be filed .... where the defendant by his answer admits the complainant’s case, or sufficient of it to enable him to go to a hearing without the examination of witnesses:” Fletcher’s Equity Pleading & Practice, sec. 356. Here no general replication was filed nor was the answer excepted to; the plaintiff apparently realized that no issues of fact were involved and set the case down for hearing on petition and answer. Under the circumstances we cannot say that it was error to adjudge the prayer of the petition in the light of the averments in the answer.

As the plaintiff has already claimed and been awarded damages for the destruction of his causeways, we see no error in the ruling that he can enjoy no further recovery on that score. If these causeways were secured in the adjustment of the original right of way claim, they would be viewed as substitutes for the crossing allowed by the act of 1849: Dimmick v. Delaware, Lackawanna & Western R. R. Co., 180 Pa. 468; while, if the right of way was acquired independently and the duty to maintain these causeways arose entirely through contract, the act of 1849 would have no application: Marsh v. Lehigh & New England R. R. Co., 215 Pa. 141. However this may have been, the plaintiff is not entitled to both the damages and the causeways. After pleading the destruction of the causeways and procuring a verdict, he cannot now maintain a duty on the part of the railroad to give him another causeway' or additional damages. Had he not claimed and been awarded damages on account of the abolition of the causeways, or had the verdict covered the value of only one of the crossings, then it might have been necessary to consider the applicability of the act of 1849, and the question of the obligation of the railroad thereunder to extend the remaining causeway or give another over the roadbed as widened would have arisen; but as the plaintiff claimed and was awarded damages for the taking of both causeways, he has recovered all that he is entitled to receive,- and that. question is removed from the case.

Further discussion is unnecessary. We have not overlooked any of the points presented by counsel or considered by the court below, but in the absence of clearer light on the facts surrounding the creation of the causeways, or upon the equity proceeding to restrain their destruction, we prefer to reach our decision from the conclusions already stated.

Without ruling the other questions sought to be raised ■by the various specifications of error, the assignments arc all dismissed and the order of the court below is affirmed.


author: Mr. Justice Moschziskee,

text:
    Willock v. Beaver Valley Railroad Company, Appellant.

      Railroads — Eminent Domain —• Consequential Damages — Streets— Damages for Operation — Smoke and Dust — Evidence.
    1. In aetion of trespass to recover consequential damages caused by the construction of a railroad in a street, where a witness admits upon cross-examination that in fixing his estimate of the damages he had taken into consideration “the danger from the operation of the road” and “the smoke and the dust . . . ., and the bringing in a cheaper class of houses” and this testimony is not afterwards changed materially or departed from and it is clear that the witness did take these forbidden elements into account, the refusal of the court to exclude his evidence on motion, constitutes reversible error, especially when the charge contains no instruction to disregard it.

      Appeals — Paper-book—Statement of question involved — Assignments of error.

    2. The statement of the question or questions involved must include any question unrelated to the main matter for decision but considered sufficiently important to be assigned for error, or the assignment will be ignored.
    Argued Oct. 11, 1910.
    Appeal, No. 3, Oct. T., 1910, by defendant, from judgment of C. P. Beaver Co., March T., 1907, No. 223, on verdict for plaintiff in case of John P. Willoek for use, v. Beaver Valley Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Reversed.
    Trespass to recover consequential damages caused by the construction of a railroad in a street. Before Inghram, P. J., specially presiding.
    The facts appear in the opinion of the Supreme Court and the prior report of the case in 222 Pa. 590.
    The statement of the question involved was as follows:
    In an action by an abutting property owner to recover consequential damages for the construction of a railroad longitudinally and at grade on the street in front of his property, did the court below confine the evidence as to damages within the limits ordered by this court, when the case was here on appeal after the first trial? 222 Pa. 590.
    When John P. Willoek was on the stand he was asked this question:
    “Q. Then I would ask you, what is the amount of depreciation in the value of that property caused by the special injury to the access about which this complaint is made? ”
    Whereupon the defendant’s counsel asked leave to cross-examine the witness as to his competency, and, leave having been granted so to do and the said witness having been cross-examined and having been re-examined, the court made the following ruling: “You may proceed, and we will seal a bill to the defendant in that matter.” [7]
    The court charged in part as follows:
    [And it will be a question for your determination, whether or not, under all the evidence in this case, the market value of this property as a whole has been appreciated or depreciated by the construction of this railroad; and as you determine that question, so will your verdict be. If the market value of the property has not been depreciated, then the plaintiff has not suffered any damage by reason of the construction of the railroad, and your verdict would be for the defendant. But if you find that the market value of that property, as affected by the construction of this railroad, has been depreciated, then you will determine for what amount and to what extent, and for such amount the plaintiff would be entitled to a verdict at your hands.] [1]
    January 3, 1911:
    [He hap offered you also the testimony of Mr. J. A. Shane, who, I believe, is a real estate dealer in the borough of Beaver, and he has given you his opinion' of how the access to this property has been affected by the building of the railroad; and he testifies that in his opinion the market value of the real estate in question has been depreciated to the extent of $4,000.] [2]
    [Now, these are the witnesses, gentlemen, who have fixed an amount in which they say they believe this property has been depreciated by reason of the interference of the construction of this railroad with the access to the property. And for such an amount as you may find from the testimony of these witnesses, the plaintiff claims a verdict at your hands.] [3]

      Errors assigned were (1-3) various instructions, quoting them; (4-7), rulings on evidence, quoting the bill of exceptions.

      George B. Gordon and James L. Hogan, with them Wm. Watson Smith, for appellant.

      Robert W. Darragh, with him J. Rankin Martin, for appellee.
   Opinion by

Mr. Justice Moschziskee,

On the last appeal in this case, 222 Pa. 590, we laid down the rule to govern the measure of damages, and particularly called attention to the law “that noise, smoke and dust as well as other inconveniences and discomforts which must be borne by the general public and which are occasioned by the operation of the railroad, cannot be considered in estimating damages for special injuries in this class of cases.” The fourth and fifth assignments of error raise the question: Did the court below confine the evidence as to the damages within the limits ordered by this court?

J. A. Shane, a witness for the plaintiff, admitted under cross-examination that in fixing his estimate of the damages he had taken into consideration “the danger from the operation of the road” and “the smoke and the dust . . . ., and the bringing in a cheaper class of houses.” This testimony was not afterwards changed materially or departed from, and it is clear that the witness did take these forbidden elements into account. The testimony was not only objected to during the examination of the witness, but at its conclusion a motion was made to strike out the evidence. The refusal of this motion was reversible error.

In Hamory v. Pennsylvania, Monongahela & Southern R. R. Co., 222 Pa. 631, we said: “Where evidence has been improperly admitted which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration.” The defendants in the present case were not even given the benefit of such an instruction. On the contrary, the trial judge in his charge treated the testimony as if the witness had confined himself entirely to the element of interference with access to the plaintiff’s property. Though we might not have felt called upon to reverse on this alone, yet in the absence of any instructions that the jury must disregard all elements other than the interference with access, we cannot say that the second and third assignments of error are without merit.

The abstract from the charge to which our attention is called in the first assignment may appear subject to criticism, but when taken in connection with the charge as a whole it does not constitute reversible error.

A careful reading of all of the testimony satisfies us that no substantial harm was done by allowing the question covered by the sixth assignment.

The seventh assignment will not be considered for the reason that the question attempted to be raised therein is not suggested in the statement of the question involved. While the rule governing the question involved is, “It must state the question or questions in the briefest or most general terms, without names, dates, amounts or particulars of any kind whatever,” this does not mean that a question unrelated to the main matter for decision but considered sufficiently important to be assigned for error, need not be included.

The second, third, fourth and fifth assignments are sustained, the judgment is reversed and a venire facias de novo is awarded.


author: Per Curiam,

text:
    Winfield, Appellant, v. Beaver Trust Company.

      Decedents’ Estates — Executors and Administrators — Wages for domestic services — Boarding—Presumption of.

    1. Wages for domestic services and board bills are presumed to be paid at stated intervals, and when a claim for such services is presented against a decedent’s estate, extending over any great length of time, the burden is on the claimant to rebut the presumption by affirmative evidence. Loose declarations of the decedent whose estate is sought to be charged are not sufficient to support such a claim.
    2. In an action against an administrator to recover for services rendered to and board furnished the decedent, where it appears that the plaintiff, a grandnephew, eighteen years of age, who had been employed as common laborer, lived with the decedent two years and nine months, until the latter, six months before his death, broke up housekeeping and lived with friends elsewhere; that the services performed by the plaintiff consisted of sweeping, making beds, attending to fires, cooking and taking care of the house; that the claim was for wages covering the whole period when the plaintiff and decedent lived together and for board for about half of it; and there is no proof of payments made by the decedent or of a demand therefor during his life or of a contract of employment and the plaintiff relies entirely on proof of declarations made by the decedent during the time the plaintiff lived with him, to the effect that he would pay him for the services or would see that he was well paid, a judgment for the defendant non obstante veredicto will not be reversed.
    Argued Oct. 11, 1910.
    January 3, 1911:
    Appeal, No. 24, Oct. T., 1910, by plaintiff, from judgment of C. P. Beaver Co., Sept. T., 1908, No. 317, for defendant non obstante veredicto in case of Edward 'Winfield v. Beaver Trust Company, administrator of James Nelson, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Assumpsit for wages, etc., against an administrator. Before Holt, P. J.
    The opinion of the Supreme Court states the case.

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

      W. 8. Moore, with him J). M. Twiford, for appellant.

      Charles T. Moore, with him Elmer Lyons and Hice, Morrison, Reader and May, for appellee.
   Per Curiam,

This appeal is from a judgment entered non obstante veredicto, in an action against an administrator to recover for services rendered to and board furnished the decedent. The decedent was the owner of a large farm in charge of a tenant and when ninety years old lived alone in a small house erected on the farm. The appellant, a grandnephew, eighteen years of age, who had been employed as common laborer, lived with the decedent two years and nine months, until the latter, six months before his death, left his house and lived with friends elsewhere. The services performed by the appellant, consisted of sweeping, making beds, attending to fires, cooking and taking care of the house. The claim was for wages covering the whole period when he and the decedent lived together and for board for about half of it. There was no proof of payments made by the decedent or of a demand therefor during his life. The first assertion of a claim was by action brought against the administrator fifteen months after the services ended.

At the trial there was no evidence of a contract of employment and the appellant relied entirely on proof of declarations made by the decedent, during the time the appellant lived with him, to the effect that he would pay him for his services or would see that he was well paid. The services for which a claim was made, were purely domestic services and as to them and the claim for board a presumption of payment arose and it was unrebutted. Loose declarations are not sufficient to support a claim of this kind. Affirmative proof is required: Taylor v. Beatty, 202 Pa. 120. In the recent case of Cummiskey’s Est., 224 Pa. 509, it was said by Mestkezat, J.,“It is a well-established rule that the wages for domestic services are presumed to be paid at stated periods, and that when a claim for such service is presented against a decedent’s estate, extending over any great length of time, the burden is upon the claimant to rebut .the presumption. It, of course, is a presumption of fact which may be rebutted by competent evidence, but until satisfactory evidence is produced the presumption prevails and the claim must be disallowed. The same rule is applicable in cases of boarding and nursing under circumstances such as are disclosed in this case. It is the habit and usage of people to pay their board bills as well as for services for nursing at stated periods. This is so well understood in this country that, as in the case of servants’ wages, a presumption arises that they are periodically paid. Especially does this rule obtain where a claim for boarding and nursing for years is presented against the estate of a decedent. The protection of the estates of the dead requires its rigid enforcement.” Whether the evidence was' sufficient to rebut the presumption was a question for the court: Gregory’s Executors v. Com., 121 Pa. 611; Richards v. Walp, 221 Pa. 412.

The judgment is affirmed.