author: Mr. Justice Mestrezat,

text:
    Albright, Appellant, v. Albright.

      Equity — Contracts—Vagueness of terms — Ownership of business— Profits — Accounting.
    1. It is not the function of the court of equity to make a contract for the parties or to supply any material stipulations of a contract alleged to have been made.
    2. Where a bill in equity filed to obtain possession of a business and for an accounting of profits avers ownership in the plaintiff and this is denied by the defendants who aver a sale of the business to them, and the court finds as a fact on sufficient evidence that there was no sale, although the parties “had reached some kind of an agreement for community of profits, but the evidence gave no indubitable basis for a conclusion as to the terms, because, as is probable, the terms were never fixed,” the plaintiff is entitled to the relief prayed for including an accounting for profits, and there is no justification for a decree based on the assumption of the existence of an agreement by which the defendants wore entitled to share equally with the plaintiff in the profits of the business.
    3. There is no principle of law or equity which authorizes a court as remuneration for an employee’s successful management to divide the business or profits arising therefrom between the employee and his employer.
    4. A court of equity in dealing with legal rights adopts and follows the rules of law in all cases to which these rules are applicable; and whenever there is a direct rule of law governing the case in all of the circumstances, the court is as much bound by it as would be a court of law if the controversy was there pending.
    Argued April 19, 1910.
    Appeals, No. 371, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1907, No. 4,210, in case of Chester E. Albright v. Chester E. Albright, Jr., and William L. Albright.
    Before Pell, C. J., Brown, Mestjrezat, Potter and Stewart, JJ.
    Reversed.
    Bill in equity for an accounting and to obtain possession of a factory and business. Before Sulzberger, J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was the decree of the court directing an accounting of profits between the plaintiff and the defendants.

      Alex. Simpson, Jr., with him N. M. Edwards, for appellant.
    In this case the decree is in direct contradiction of every pleading, and, therefore, erroneous: Thompson’s App., 126 Pa. 367; Zook v. Penna. R. R. Co., 206 Pa. 603; Luther v. Luther, 216 Pa. 1.

      July 1, 1910:
    No equity can be built out of the fact that there was talk of a possible future interest to be given to defendants, and that they had made a great success out of a formerly very modest business: Little v. Dawson, 4 Dallas, 111; Hartman’s App., 3 Grant, 271; Thompson v. Stevens, 71 Pa. 161; Leidig v. Coover, 47 Pa. 534; Zimmerman v. Rhoads, 226 Pa. 174; Magniac v. Thomson, 56 U. S. 281; Walters v. McElroy, 151 Pa. 549; Grant v. Seitsinger, 2 P. & W. 525; Tagg v. Bowman, 108 Pa. 273; Shearman v. Morrison, 149 Pa. 386; McNair v. Burns, 9 Watts, 130; Benevolent Order of Active Workers v. Smith, 1 Pa. Superior Ct. 1.

      John G. Johnson, with him Joseph W. Gross and Dimner Beeber, for appellees.
   Opinion by

Mr. Justice Mestrezat,

This is a voluminous record and we have examined it with care. We do not think it necessary to refer to and discuss the testimony in the case as we are all of opinion that the evidence warranted certain findings of fact made by the court below which, under the pleadings, are controlling and do not justify its decree.

The bill avers substantially that for ten years prior to 1901, the plaintiff was engaged in the manufacture and sale of money purses or pocketbooks in Muncy, Pennsylvania; that in March of that year he removed his business to Germantown, in the county of Philadelphia, and there conducted it in the name of the Albright Purse Company and under his own personal supervision and attention until February 28, 1902, when he removed his residence to Lewisburg, Union county, Pennsylvania; that while he carried on the business at Germantown he employed his son, William, one of the defendants, to work in the factory at such wages as the plaintiff saw fit to pay him; that at the instance of the defendants and for the reasons set forth in the bill he continued the business at Germantown instead of removing it to Lewis-burg, and on or about February 28, 1902, he placed its management and control in the hands of the other defendant, Chester E. Albright, Jr., with directions to pay to the defendant, William L. Albright, so long as he remained at work in said business, a fixed salary and such other amounts as in the judgment of the said Chester, Jr., would be necessary to comfortably keep and maintain the family of the said William; that from February 28, 1902, until April 4, 1907, the business was run and managed by Chester, Jr., for the plaintiff under the same name as theretofore in accordance with the understanding and terms made between the said Chester, Jr., and the plaintiff; that during all the time the business was under the management of Chester, Jr., William was employed in the factory where said business was conducted, as an employee of the plaintiff, and received his regular pay for his services; that on April 4, 1907, the defendants visited the plaintiff at his residence in Muncy, and William, in the presence of Chester, Jr., denied that the plaintiff was the owner of the business and alleged that it belonged to the defendants jointly, and asserted that the plaintiff had no authority or control over the business; that the plaintiff on April 5, 1907, was refused admission to the factory situate in Germantown, and that the defendants continue to refuse the plaintiff access to the factory and to his books of account and other records of the business. The bill prays for discovery and an accounting, and for a decree that the defendants surrender possession of the factory and business, together with books of account, etc., to the plaintiff.

The answer of Chester E. Albright, Jr., admits that the plaintiff was engaged in the business at Muncy; that he removed the business to Germantown and conducted it under the name of the Albright Purse Company and gave his personal supervision to and assisted in managing the business until about February 28, 1902, but denies that the plaintiff contemplated removing the business to Lowisburg in 1901 or 1902. It also admits that the plaintiff employed William L. Albright in the factory from July, 1901, to January 20, 1902. The answer avers that the plaintiff prevailed upon the defendant, to take the business and relieve the plaintiff of the responsibility of it, and to give William employment; that it was agreed in consideration of the transfer of the assets of the purse company to the defendant at an inventoried price, the plaintiff was to have a royalty of three cents on each purse manufactured with a guaranty of $3,000 a year; that it was agreed that if the other defendant, William L. Albright, would stop drinking and give his time and skill to the business, he was to have his share in it and in the meantime to receive compensation for his services as .an employee; that Chester E. Albright, Jr., has run and managed the business of the purse company since January 20, 1902, in accordance with the agreement of transfer; that William L. Albright, the other defendant, was employed as an employee of Chester E., Jr.

The answer of William L. Albright, the other defendant, admits that the plaintiff carried on the business at Muncy, removed it to Germantown, and that he gave his personal supervision to the business until it was turned over to the defendants on January 20, Í902. The answer avers that William had been employed by the plaintiff while he conducted the business in German-town, but denies that the employment was at such wages as plaintiff saw fit and proper to pay him; on the contrary, it is alleged, the employment was based upon the fact that plaintiff had agreed with defendant to give him a one-half interest in the manufacturing business and a fixed salary in addition thereto, provided defendant would give his time, attention and skill to the same. It is averred that the defendant at the instance of the plaintiff gave up his private business to join the plaintiff in his business, and an agreement was made by which he was to have a one-half interest in the plaintiff’s business together with a fixed salary for his services; that subsequently the defendants proposed to plaintiff that if he would surrender and give up his business they would pay bim for the exclusive right to manufacture and sell purses under the plaintiff’s letters patent, a three cent royalty per purse, and would guaranty him a minimum royalty of $3,000 a year which was accepted; that from February 28, 1902, until April 4, 1907, the business was conducted by the defendants as their own, and the amount of the inventory and the royalty agreed upon was paid to the plaintiff; that William’s weekly salary was paid and charged against his share of the profits; and that he had been recognized and treated by the plaintiff and Chester, Jr., as a one-half owner in the business.

It will be observed that the plaintiff avers in his bill he is the sole owner of the business and its assets; that Chester, Jr., in his answer, avers that the plaintiff has no interest in the business or its assets, but that he, by purchase from the plaintiff, has been since January 20, 1902, and is now the sole owner thereof, subject to an undefined interest which he may give to William L., who was Chester, Jr.’s”, employee; that William’s answer denies that the plaintiff has any interest in the business or its assets, avers that William was not an employee of Chester, Jr., but that he and Chester, Jr., by purchase, are the owners of the business and assets in equal shares. A cross bill was filed by each of the defendants in which they aver that the business was sold and transferred to both defendants. The answers contradict each other as , to the ownership between the defendants, and Chester, Jr.’s, cross bill contradicts his answer.

The trial judge found upon sufficient evidence as follows: “The plain inference to be drawn from this testimony is that both Chester and William thought that they had a general understanding with their father that if things went on well, and William behaved properly, he, the father, would make the matter all right; that no definite or specific meaning had ever been assigned to this agreement, nor had any definite or specific terms ever been fixed on, except the tentative modern provisions for William's immediate needs. . . . The very nature of the circumstances inhibited a specific contract, by reason of the fear that William, once in possession of rights, would prove intractable. ... We find that in or about January, 1902, there were negotiations ■ between the plaintiff and defendants which amounted no more than to this, namely, an understanding that if things went on right, and the defendants, by their skill, labor and attention, should promote the prosperity of the business, an equitable arrangement concerning its management and ownership would at some reasonable time.in the future be made; that no specific terms for such future arrangement were agreed on, and that there was not then or at any other time an actual contract of sale of the business between the plaintiff and the defendants.” The court in bane approved these findings and, in accordance with the proof, further held: “The main fact apparent from the adjudication is that the parties plaintiff. and defendants had reached some kind of an agreement for community of profits.' The evidence, however, gave no Indubitable basis for a conclusion as to the terms, because, as is probable, the terms were never fixed.”

Under these findings of fact, warranted by the evidence, and the pleadings in the case, the trial judge very properly held “that the failure to fix terms practically nullified the agreement so far as judicial interference is concerned.”

The bill and answers presented a single and distinct issue between the plaintiff and defendants. The plaintiff averred that he was the owner of the business and its assets; the defendants averred the contrary and that the business and its assets had been transferred to them in 1901, for a consideration, and they were the sole owners. In the opinion of the trial judge and the court in banc, the defendants failed to sustain the averment in the answers that there was a contract by which the property was transferred to the defendants in 1901, and the court found that while there was some kind of ah agreement between the parties for a community of profits, the evidence did not disclose the terms of the agreement, “because, as is probable, the terms were never fixed.”

Under these conclusions of the court below, the plaintiff was entitled to the relief prayed for in the bill. It being found that the business and its assets belong to the plaintiff and that the defendants had failed to support the averment of their answers that the business had been transferred to them or that the title had passed from the plaintiff and that he was not the owner, and, further, that the terms of the agreement for a division of the profits had not been shown, it was the duty of the court to award an accounting and to enter a decree placing the plaintiff in possession of the property.

The learned court below, however, while conceding that “the plaintiff is the owner of the property, the chattels and machinery, and is entitled to an account of them,” held that “the broad general principle is that equality is equity, and where equality is consistent with the main general purpose of an agreement of this kind, equity will assume its existence even without the best evidence, the dilemma being either to nullify in toto an agreement which was certainly reached or to supply terms by general equitable considerations.” This is certainly an anomalous proposition, whether it be viewed from a legal or an equitable standpoint. The court concedes that while the property belongs to the plaintiff and that the defendants have shown no contract or agreement by which the title passed out of him and became vested in the defendants, that equity will assume the existence of some kind of an agreement by which the defendants have become entitled to share equally with the plaintiff in the net earnings of the property. The court seems to base this “equity” on “the successful and highly profitable work of their (defendants’) period of activity;” and to hold that by reason of this success defendants “must take a share of the capital created by them and of the net earnings.” It is then stated in the opinion: “In estimating this share we must regard the three parties as standing upon a footing of equality, the plaintiff contributing the patents, the defendants developing and marketing the invention, and securing a good-will in the commercial community.” This division of the earnings of the plaintiff’s property is to be made without his consent and in face of the express finding of the court that the evidence gave no indubitable basis for a conclusion as to the terms of an agreement for community of profits.

The learned court cites no authorities, and we apprehend there are none, which hold that it is the function of a court of equity to make a contract for the parties or to supply any material stipulations of a contract alleged to have been made by the parties. Nor do we apprehend that there is any precedent in the books, which would so far depart from reason, as to hold that equity can take the property of one person and give it to another against the owner’s consent. If there is anything settled in the administration of equity it is that a chancellor will not only not make an agreement for the parties, but will not enforce a contract unless it is complete and certain in all its essential elements. The parties themselves must agree upon the material and necessary details of the bargain, and if any of these be omitted, or left obscure or indefinite, so as to leave the intention of the parties uncertain respecting the substantial terms of the contract, the case is not one for specific performance: Zimmerman v. Rhoads, 226 Pa. 174. Where the rights of the parties are clearly defined and established at law, equity will not interfere and change or unsettle those rights, but in all such instances the maxim sequitas sequitur legem is strictly applicable: Magniac v. Thomson, 56 U. S. 281. A court of equity, in dealing with legal rights, adopts and follows the rules of law in all cases to which those rules are applicable; and whenever there is a direct rule of law governing the case in all its circumstances, the court is as much bound by it as would be a court of law, if the controversy was there pending. Mathews v. Insurance Co., 75 Ala. 85. Equality is equity, but it is neither equality nor equity to deny to the owner his legal right to the earnings of his own property. It is not and never has been the function of equity to divest the owner of his property, the title to which is vested in him by law. Under the facts found in this case, the law places the title to the business and its assets in controversy in the plaintiff, and equity will not and cannot interfere and deprive him of his property, or of its earnings. TEquitas nunquam contravenit leges.

It may be conceded that under the management of the defendants, the business was highly successful, much more so than when the plaintiff himself conducted it, but this does not invest a court of equity with the power to divide the profits arising from the successful management between the owner and his employees who have managed it. They may be entitled to compensation for their services like any other employee or agent engaged in the transaction of his employer’s or principal’s business, but there is no principle of law or equity which authorizes a court, as remuneration for the employee’s successful management, to divide the business or profits arising therefrom between the employee and his employer. The court having found that the plant or business was owned by the plaintiff, and not by the defendants, as alleged by them, the former was entitled to an accounting, and to the possession of his property.

The issue made by the pleadings in the case was simple and distinct and the findings of fact by the court, noted above, fully supported by the evidence, sustained the right of the plaintiff to a decree in his favor.

The decree is reversed and an accounting by the defendants ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Albright v. Albright, Appellant.

      Equity — Ownership of business — Profits—Accounting.
    Where a bill in equity is filed by a father against two of his sons to regain possession of a business, and for an accounting of profits, and the lower court enters a decree in favor of the father as to the ownership of the business, and in favor of the sons as to a share in the profits thereof, the appellate court in reversing the decree in favor of the sons will direct that it shall be without prejudice to them to assert any legal claim they may have for services or otherwise arising out of their relations with the business.
    Argued April 19, 1910.
    July 1, 1910:
    Appeal, No. 404, Jan. T., 1909, by defendants, from decree of C. P. No. 2, Phila. Co., March T., 1907, No. 4,210, in case of Chester E. Albright v. Chester E. Albright, Jr., and William L. Albright.
    Before Fell, C. J., Brown. Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Bill in equity for an accounting and to obtain possession of a factory and business.

      Error assigned was decree of court.

      John G. Johnson, with him Joseph W. Gross and Dimner Beeber, for appellants.

      Alex. Simpson, Jr., with him N. M. Edwards, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We have held in an opinion handed down herewith, ante, p. 552, in an appeal by the plaintiff from this same decree that the prayer of the bill should have been granted, and the defendants required to account to the plaintiff for the moneys received by them from the. plaintiff’s business. In this appeal by the defendants, error is assigned, inter alia, to several paragraphs of the decree. The assignments must be sustained in so far as error is alleged in the parts of the decree, contained in said paragraphs, awarding to the defendants any part of the business or profits arising therefrom and denying the plaintiff the right to the possession of the assets of the concern and requiring the plaintiff to give a bond for the possession of such assets. As we held in the other appeal, the defendants have no right to the plant or any part of the profits arising therefrom and, hence, this appeal must be sustained in so far as error is alleged in the decree awarding such profits to the defendants. Our decree, however, will be made without prejudice to the rights of the defendants or either of them to assert any legal claim they may have for services or otherwise arising out of their relations with the plaintiff’s manufacturing business.

The decree of the court below is reversed at the costs of the appellants without prejudice to the rights of the defendants to recover from the plaintiff any sum or sums due them or either of them for services rendered the plaintiff in or about the business for which he seeks an accounting in this proceeding.


author: Mr. Justice Brown,

text:
    Duffy’s Estate.

      Real estate — Practice, O. C. — Partition—Inquest-—Confirmation of return — Act of March 29,1832, P. L. 190.

    1. A failure to confirm the return of an inquest in partition is fatal to any subsequent proceedings in the case.
    2. Where an inquest in partition, as returned by the sheriff’s jury, is never confirmed, as provided by the Act of March 29, 1832, sec. 36, P. L. 190, a rule upon the heirs to accept or refuse the real estate is irregularly awarded.
    Argued April 19, 1910.
    Appeal, No. 241, Jan. T., 1909, by defendants, from decree of O. C. Huntingdon Co., awarding real estate in partition in Estate of John Duffy, deceased.
    July 1, 1910:
    Before Fell, C. J., Brown, Mestrezat, Potter and Stewart, JJ.
    Reversed.
    Proceedings in partition. Before Woods, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in sustaining demurrer to defendant’s answer to rule.

      H. W. Petrikin and W. M. Henderson, for appellants,
    cited: McMasters v. Carothers, 1 Pa. 324; Welch’s App., 126 Pa. 297; Miller v. Baker, 160 Pa. 172.

      James S. Woods, with him W. II. Woods and Thomas F. Bailey, for appellees,
    cited: Christy’s App., 110 Pa. 538; Kates’s Est., 148 Pa. 471; Ike’s Est., 200 Pa. 202; Welch’s App., 126 Pa. 297; McCorkle’s Est., 184 Pa. 626; Bishop’s Est., 200 Pa. 598.
   Opinion by

Mr. Justice Brown,

The Act of March 29, 1832, P. L. 190, relating to orphans’ courts, provides how and when an inquest in partition may be awarded on the real estate of a decedent and directs that, upon return made by the persons appointed with the consent of the parties to make partition, or of the inquisition taken, the orphans’ court shall “give judgment that the partition thereby made be firm and stable forever.” The court, in effect, gives this judgment when it confirms the return of the inquest, and the confirmation is absolutely essential to give validity to what may follow in the proceedings. “When the report of the inquest comes up for confirmation, and the court is asked to decree partition, all persons interested have a right to be heard. Objections to jurisdiction, to the alleged rights of the parties, and to the regularity of the proceedings, may all be considered and determined. The decree then made that the partition remain firm and stable forever, 'is definitive and final. Here then is a resting place. The partition proper is then completed. It precedes any order of sale, or any allotment of the purparts. From this final decree any person aggrieved may appeal. Any person interested can have his alleged grievances adjudicated and the validity of the partition determined before he is required to elect to take a purpart, or suffer the property to go to a sale:” Gesell’s App., 84 Pa. 238; Christy’s App., 110 Pa. 538.

In the proceedings brought up to us for review on this appeal the return of the inquest was never confirmed. These two appellants, in answer to the rule upon them to accept or refuse the real estate, averred (1) that the rule was irregularly and improvidently awarded, in that the inquest, as returned by the sheriff’s jury, was never confirmed, as provided by the Act of March 29, 1832, sec. 36, P. L. 190; and (2) that the rule upon heirs is dependent upon the confirmation of the inquest, and, without this formal judgment, no title would pass under the proceedings to an electing heir or to a purchaser at the trustee’s sale. No issue was joined on this answer, and the respondents are entitled to have its averments taken as true. The court' wholly disregarded it, and, on the day that the rule was returnable, awarded the real estate to one of the heirs at a valuation. The failure to confirm the return of the inquest was fatal to any subsequent proceedings in the case, and all that was done after the return was filed was coram non judiee. The record must be remitted that the proceedings may be conducted in conformity to the statute. Appellants will then have an opportunity to again apply to the court for the issue which was denied them, and, upon refusal of it, their right will be to appeal to this court to determine the correctness of the court’s ruling. The fourth assignment of error is sustained. The decree of the court is reversed and all proceedings in the case subsequent to the return of the inquest are vacated and set aside, the costs on this appeal to be included in those of the proceedings in partition.


author: Mr. Justice Potter,

text:
    Jackson v. Pennsylvania Railroad Company, Appellant.

      Practice, C. P. — Trials—Answers to points — Charge—Harmless Error — Appeals.
    1. The mistake of a trial judge in unqualifiedly affirming a point which is not quite consistent with a correct general charge does not amount to reversible error when the verdict shows no resulting injury therefrom.
    2. A point is properly refused when not based upon evidence which is uncontradicted.

      Railroads — Furnishing cars — Discrimination—Treble damages — Statutes — Repeal by implication — Acts of June 4, 1883, P. L. 72, May 81, 1907, P. L. 852, and P. L. 854.

    3. The second section of the Act of June 4, 1883, P. L. 72, which gives to any person, company or corporation discriminated against by railroads in rates charged and facilities for transportation afforded a right of action to recover treble the amount of injury suffered is not directly nor impliedly repealed by either the Act of May 31,1907, P. L. 352, or the Act of May 31, 1907, P. L. 354.
    4. Repeals of statutes by implication are not favored and will not be indulged unless it is manifest that the legislature so intended.
    Stewart, J., dissents.
    Argued April 20, 1910.
    Appeal, No. 397, Jan. T., 1909, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 74, on verdict .for plaintiff in case of Robert A. Jackson v. The Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass for damages under the act of 1883. Before A. O. Smith, P. J.
    The facts are set out in the opinion of the Supreme Court.
    Plaintiff presented, inter alia, the following points:
    5. That the measure of plaintiff’s damages is the difference between the cost of mining and delivering the coal in railroad cars, adding thereto the royalty paid, and the fair average selling price prevailing in the region where his mine was situated, during the period extending from March 26, 1902, and August 4, 1905, both inclusive, for all coal which the jury find from the evidence the plaintiff could have been reasonably able to mine and sell, except for the refusal of the defendant company to furnish his due proportion of all the cars available. Answer: Affirmed. [1]
    6. That if the jury find from the evidence that the refusal of the defendant company to furnish cars to the plaintiff was undue and unreasonable, and also find from the evidence that the plaintiff suffered loss or damage, then the jury must ascertain how nmch loss or damage the plaintiff sustained, and having ascertained the amount of single damages they may multiply the same by three or treble the amount and return a verdict for the treble or threefold amount. Answer: Affirmed. [2]
    Defendant presented these points:
    1. That under the pleadings and evidence the plaintiff is not entitled to recover and the verdict must be for the defendant. Answer: Refused. [3]
    3. It appears by the uncontradicted evidence in the case that plaintiff received from June 1, 1902, to June 1, 1903, covering the whole period of high prices, cars greatly in excess of his pro rata share, and as his claim is based upon a deficiency during the whole period and not during a specified part thereof only, the high prices received by him during the period named must be taken into account in attempting to discover if he sustained any loss, and there is no such evidence of loss during the remaining period as to justify a finding of any amount in his favor and the verdict must be for the defendant. Answer: This point is also refused. It would be asking the court to give binding instructions to the effect that the verdict must be for the defendant, because during a period of high prices it would appear by pretty plain evidence, at least, that he got more than his pro rata share would entitle him to. We leave that whole question for the jury, as to whether or not if orders were given for cars during the entire period and he would therefore be entitled, say to 760 cars, according to my calculation, and did not get that many, you should find that he was discriminated against. That is entirely, as we look at it, for the jury, governed, however, by one of the facts, if you find it to be a fact, that during that high priced period he did get a large proportion of cars more than he was entitled to, as affecting whether or not he was in fact damaged at all. [4]
    4. There was no duty upon the defendant company to place cars at plaintiff’s mine except upon orders made by him and then only for his pro rata share, and there is no sufficient evidence to so impeach the daily record of the orders made by the plaintiff, which record was made at the time, as to warrant the jury in finding a verdict that orders were made by plaintiff which appear by the record supplemented by the testimony of the train master not to have been made, and as there is no claim here except as based upon such allegation, there can be no recovery and the verdict must be for the defendant. Answer: Refused. [5]
    Verdict for plaintiff for 1705.87, single damages, on which judgment was entered for $2,117.51, treble damages. Defendant appealed.

      Errors assigned were (1-5) above instructions, quoting them.

      Francis I. Gowen and John G. Johnson, with them Thomas H. Murray, James P. O’Laughlin and Hazard Alex. Murray, for appellant.
    There can be no doubt that the legislature has, in the Acts of May 31, 1907, P. L. 352, and P. L. 354, dealt with the same subjects which it had previously dealt with in the act of 1883; and it must necessarily follow that provisions of the latter act are in so far repealed: Penna. R. R. Co. v. Bogert, 209 Pa. 589. And at least, treble damages can no longer be recovered: Abbott v. Com., 8 Watts, 517; Com. v. Cromley, 1 Ashmead, 179.
    July 1, 1910:

      R. D. Swope, with him W. I. Swope, for appellee.
    The act of 1883 is not repealed by implication by the later acts of 1907: Sifred v. Com., 104 Pa. 179; Allegheny City v. McClurkan & Co., 14 Pa. 81; Wilkes-Barre v. Stewart, 16 Pa. Superior Ct. 347; Uhler v. Moses, 200 Pa. 498; Com. v. Vetterlein, 21 Pa. Superior Ct. 587; Rodebaugh v. Traction Co., 190 Pa. 358; Chicago, R. I. & P. Ry. Co. v. Zernecke, 82 N. W. Repr. 26; 55 L. R. A. 610.
   Opinion by

Mr. Justice Potter,

The plaintiff brought this action against the defendant company to recover damages under the provisions of the Act of June 4, 1883, P. L. 72, for undue .discrimination in refusing to furnish to him, his fair proportion of cars for shipping coal, from his coal mine in Decatur township, Clearfield county, during the years 1902, 1903, 1904 and 1905. The case was submitted, upon the facts, to the jury and resulted in a verdict for $705.87, single damages, or $2,117.61, treble damages; and from the judgment entered thereon defendant has appealed. The assignments of error are all to answers to points submitted, as requests for charge to the jury. The first specification alleges error in affirming the fifth point presented by plaintiff which was as follows:

“5. That the measure of plaintiff’s damages is the difference between the cost of mining and delivering the coal on railroad cars, adding thereto the royalty paid, and the fair average selling price prevailing in the region where his mine was situated, during the period extending from March 26, 1902, and August 4, 1905, both inclusive, for all coal which the jury find from the evidence the plaintiff could have been reasonably able to mine and sell, except for the refusal of the defendant company to furnish his due proportion of all the cars available.”

Counsel for appellant in their argument do not criticise the measure of damages here suggested, except in so far as it includes in the average selling price, a period of abnormally high prices, during which time defendant claims that plaintiff got all the cars to which he was entitled. This was, however, a disputed question of fact. If the testimony of plaintiff is true, he did not at any time get his fair share of cars. We think the trial judge was perhaps not quite consistent in broadly affirming this point, and that in order to have kept it in line with his general charge, he should have told the jury that if they found that during the period of high prices the plaintiff had received his fair proportion of cars, such period should be excluded in estimating the faff average selling price. But practically no harm resulted,, for the small amount of the verdict rendered by the jury as single damages, shows that they adopted the recommendation of the trial judge in his general charge, of which appellant cannot complain. The inconsistency shown by the court in unqualifiedly affirming this point, did not therefore result in any injury to defendant, and the mistake did not amount to reversible error. If as a fact the plaintiff was unduly discriminated against, he was entitled to be made whole for the damage he suffered thereby. No precise mathematical rule could be laid down in such a case for the guidance of the jury. Out of the mass of facts laid before them, they had to gather the value of the right, of which, if they credited the testimony of the plaintiff, he had been deprived. The trial judge instructed the jury that all that plaintiff could expect from the railroad company was his fair pro rata share of the coal cars distributed to the region, according to his output, as rated. There was a dispute of fact as to the rating of the mine. Plaintiff claimed it.was five cars per day; that he was told so by the train master, and that he acted upon that basis. This was denied by the train master. There was also a dispute upon the point upon which the trial judge really made the case turn, which was, as to whether or not plaintiff ordered cars upon every working day as he claimed; and there was also a clash of testimony as to the number of cars actually delivered to him. In endeavoring to aid the jury in solving the intricate problems of fact involved, the trial judge prepared a table based upon the testimony of defendant’s witness, Mr. Freeman, the train master, in which he accepted as correct, defendant’s theory of the proper ratio of distribution of cars, and he directed the jury to use it in arriving at the proportionate number of cars to which plaintiff was entitled during the months covered by the claim. He said to the jury that if they were satisfied from the testimony of defendant, that no cars were ordered by plaintiff for 338 days, and that his mine rating was actually only one, two and four cars per day, instead of five cars per day, as plaintiff claimed, then the verdict should be for the defendant. Then the court narrowed the issue in another way, by telling the jury that the serious question in the case was whether plaintiff ordered cars every day, as he alleged, or whether he sent in no orders for cars upon a large number of days, as was alleged by defendant. Upon the determination of that question of fact, the trial judge, in his charge to the jury, made the case turn.

The court further instructed the jury, that if they found that fact to be as contended for by the plaintiff, “he would be entitled to recover in some amount, and you can figure that actual amount on the basis of about 3,500 tons, and at such a rate of gain or profit to him as you may find the testimony on the subject of prices warranted, remembering, however, that this testimony pretty clearly shows that he got his quota of distribution during the high priced period, and your verdict should not be based on those high prices or on any extravagant profits.” In putting the matter this way, the court practically gave to the jury in binding form, his own estimate of the tonnage; but of this instruction the defendant surely has no reason to complain. The verdict shows that the jury did accept this suggestion of 3,500 tons, about as it was given to them by the court, and that they awarded to the plaintiff a profit of about twenty cents a ton thereon, the verdict being $705.87, so that evidently the jury in using this estimate must have excluded from their verdict, all idea of the high rate of profit which, according to the testimony, might have been derived by the plaintiff during the high priced period. We think the amount of the verdict shows conclusively that the jury awarded damages only on the basis of a deficiency of cars during the low priced period.

In the fourth assignment of error counsel for appellant complain of the refusal of defendant’s third point, which requested binding instructions in its favor, on the ground that the uncontradicted evidence in the case showed that plaintiff, between June 1, 1902, and June 1, 1903, when the high prices for coal prevailed, received more than his pro rata share of cars, and that the profits made by the use of these surplus cars should be credited on the loss sustained by reason of the deficiency in cars furnished plaintiff after June 1, 1903. This point was properly refused by the court, for the reason that it was not based upon evidence which was uncontradicted. It was apparently based upon the testimony of defendant’s train mas- ' ter that between May 30, 1903, and January 5, 1905, plaintiff’s rating was two cars per day, and after the latter date, it was four cars per day. In opposition to this, plaintiff testifies that his mine was rated at five cars per day, and that he continually gave orders for cars upon that rating, and made up his claim on that basis. The trial judge did not, however, accept plaintiff’s contention in this respect, as a basis for the portion of his charge dealing with that feature of the case, but made up a calculation of his own, which he submitted to the jury. In refusing the third point he said to the jury: “It would be asking the court to give binding instructions to the effect that the verdict must be for the defendant, because during a period of high prices it would appear by pretty plain evidence, at least, that he got more than his pro rata share would entitle him to. We leave that whole question to the jury, as to whether or not, if orders were given for cars during the entire period, and he would therefore be entitled, say to 760 cars, according to my calculations, and did not get that many, you should find that he was discriminated against.”

In their second assignment, counsel for appellant allege error in the affirmance of plaintiff’s sixth point for charge by which the jury were instructed that if they found there was undue or unreasonable discrimination, they might treble the damages under the second section of the act of June 4, 1883. Counsel for appellant contend that this provision of the act of 1883 has been repealed, not directly, but impliedly, by the two Acts of assembly passed on May 31, 1907, P. L. 352, and P. L. 354. The Act of June 4, 1883, P. L. 72, is entitled, “An Act to enforce the provisions of the seventeenth article of the Constitution relative to railroads and canals.” The sections intended to be enforced are the third and the seventh, forbidding discrimination by railroads between shippers, in rates charged and facilities for transportation afforded, including the furnishing of cars. The first section of the act repeats the prohibition against discrimination which is forbidden in the constitution. The second section gives to any person, company or corporation discriminated against, a right of action to recover treble the amount of the injury suffered. The Act of May 31, 1907, P. L. 352, is entitled, “ An Act to carry into effect the provisions of section seven, article seventeen, of the Constitution of Pennsylvania, relating to discriminations and preferences in charges and facilities; and making the violation thereof a misdemeanor, and providing a penalty for the same.” The Act passed the same day, P. L. 354, is entitled, “An Act carrying into effect the provisions of section three, article seventeen, of the Constitution of .Pennsylvania, relating to the transportation of persons and property; and making the violation thereof a misdemeanor, and providing a penalty for the same.” Each act by its first section forbids the discrimination prohibited by the constitution, and by its second section provides that “Any violation, or attempted violation, of this act may be attacked or restrained by appropriate proceeding, either at law or in equity, at the instance of the Commonwealth, through the Attorney General;” and also provides that it shall constitute a misdemeanor punishable by fine, imposed on the corporation and on the officers, directors and employees participating in the violation. Neither act contains any provision analogous to the second section of the act of 1883, which gives a remedy to the parties injured, and fixes the damages which they may recover.

It is not contended that there is any express repeal of the second section of the act of 1883; but it is suggested that the acts of 1907 deal with the same subject-matter, and that therefore it is to be implied that the legislature intended that the later acts should supersede the former one. “Repeals by implication are not favored, and will not be indulged unless it is manifest that the legislature so intended: ” 26 Am. & Eng. Ency. of Law (2d ed.), 721. Chief Justice Sterrett said, in Com. v. De Camp, 177 Pa. 112, “It is well settled that the leaning of all courts is strongly against repealing the positive provisions of a former statute by construction. There must be such a manifest and total repugnance that the two enactments cannot both stand. It is not enough that there is a discrepancy between different parts of a system of legislation on the same general subject; there must be a conflict between different acts on the same specific subject. An earlier statute is repealed only in those particulars wherein it is clearly inconsistent and irreconcilable with the later enactment. Illustrations of these familiar principles may be found in many of our cases, among the more recent of which are, Hendrix’s Account, 146 Pa. 285; Com. v. Wilkes-Barre, etc., Railway Co., 162 Pa. 614; Danville State Hospital v. Overseers, 163 Pa. 175; West Chester Alley, 160 Pa. 89; Safe Deposit, etc., Co. v. Fricke, 152 Pa. 231; Hanover Borough’s Appeal, 150 Pa. 202; Sifred v. Com., 104 Pa. 179.”

We see no repugnance between the act of 1883 and the two acts of 1907 in question; nor is there any inconsistency between them. There is no reason why they may not all stand together. The purposes of the statutes are not the same. The former act provides a remedy for the party injured by the discrimination, and affords redress to the individual. The later acts provide for restraint of violation of the statutes at the instance of the commonwealth, through the attorney-general, and regard the violation of the statute and of the constitutional provision as a breach of public duty, and impose penalties, on public grounds. We think it a natural inference that the legislature intended the later acts to be ancillary to the other statute and in aid of its general purpose, as well as that of the constitutional provisions concerned.

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

Stewakt, J., dissents.


text:
    Minds v. Pennsylvania Railroad Company, Appellant.

      Railroads — Carriers — Discrimination — Transportation facilities — Sidings — Act of June 4, 1883, P. L. 72.

    1. A railroad company is not relieved from the duty of furnishing equal transportation facilities to a coal company by reason of unusual traffic conditions attendant upon a general coal strike.
    2. A siding connection is a facility for transportation within the meaning of the Act of June 4, 1883, P. L. 72.

      Railroads — Discrimination—Measures of damages — -Refusal of siding —Act of June J,, 1883, P. L. 72 — Request for siding.

    3. In an action by a coal company against a railroad to recover damages under the Act of June 4, 1883, P. L. 72, for discrimination in furnishing transportation facilities, the plaintiff is entitled to compensation for the injuries suffered and the jury have a right to take into consideration the difference between the mining cost and the fair average selling price in the mining region at the period of discrimination, though this is not necessarily and absolutely the measure of damages.
    4. In such case when the discrimination alleged against the common carrier is the refusal of a siding, the loss on unmined coal, that is, coal which plaintiff was unreasonably prevented from mining by reason of the refusal of a siding, must necessarily enter into the consideration of the jury in determining the measure of damages.
    5. In an action by two brothers as partners against a railroad company to recover damages for refusing to allow them a siding to their coal mine, the defendant cannot allege as a defense that the request for the siding was not made by plaintiffs, but by their father, if it appears that the father was acting for his sons, and that no one else could have brought the action, except the sons.

      Railroad companies — Carriers—Discrimination—Act of June 4,1888, p. l. n.

    6. The Act of June 4, 1883, P. L. 72, relating to discrimination by common carriers has not been repealed by either of the Acts of May 31, 1907, P. L. 352, and P. L. 354.'
    Stewart, J., dissents.
    Argued April 20, 1910.
    Appeal, No. 398, Jan. T., 1909, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1906, No. 296, on verdict for plaintiffs in case of John H. Minds anfi William R. Minds, copartners, trading as the Chestnut Hill Coal Mining Company v. Pennsylvania Railroad Company.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for discrimination in furnishing transportation facilities. Before Smith, P. J.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were charge of the court and answers to points.

      Francis I. Gowen and Thomas H. Murray, with them James P. O’Laughlin and Hazard Alex. Murray, for appellants.
    The unusual conditions excused defendant from putting in siding: Hoover v. Penna. R. R. Co., 156 Pa. 220; Thompson v. Penna. R. R. Co., 10 Interstate Commerce Reports, 640.
    July 1, 1910:
    A siding connection is not a facility within meaning of act of 1883: Frostburg Mining Co. v. R. R. Co., 2 Am. & Eng. R. R. Cases (N. S.), 568; Southeastern Ry. Co. v. Ry. Commissioners, L. R. 6 Q. B. Div. 586; Atchison, etc., R. R. Co. v. R. R. Co., 110 U. S. 667 (4 Sup. Ct. Repr. 185).
    The court erred in its instructions as to the measure of damages: McKnight v. Ratcliff, 44 Pa. 156; Clyde Coal Co. v. R. R. Co., 226 Pa. 391.

      David L. Krebs, with him A. M. Liveright, W. II. Moore and John II. Minds, for appellee.
    A mine owner has a right to siding connections: Olanta Coal Mining Co. v. Beech Creek Railroad Co., 144 Fed. Repr. 150; Little Rock, etc., Ry. Co. v. Oppenheimer, 43 S. W. Repr. 150; State v. Cove, 20 Mont. 468 (52 Pac. Repr. 200).
    The measure of damages is stated in Hazleton Coal Co. v. Buck Mountain Coal Co., 57 Pa. 301; Wright v. B. & O. R. R. Co., 32 Pa. Superior Ct. 5; Wilson v. Wernwag, 217 Pa. 82.
   Opinion by

Mr. Justice Potter,

Relying upon the provisions of the Act of June 4, 1883, P. L. 72, the plaintiffs brought this action against the Pennsylvania Railroad Company, to recover damages for injuries alleged to have been sustained by them, because of unlawful discrimination practiced against them by the defendant. The discrimination charged was the refusal to build at plaintiffs’ cost, and make connection with a siding to extend from the railroad to plaintiffs’ coal mine. The only means of shipping coal from plaintiffs’ mine was over the defendant’s branch road, and in order that cars might reach the mine it was necessary that the siding should be built and connected with the railroad. It appears from the evidence that in July, 1901, James H. Minds, father of the plaintiffs, applied by letter to the superintendent of defendant’s branch line, asking for the connection. After considerable correspondence an offer was made by defendant’s representative, to build and connect the siding, provided a deposit of $1,200, to cover the cost thereof, was made with the company, and that certain conditions should be accepted by the applicants. These conditions were finally accepted, and a check for the required amount was sent. On October 17, 1902, the defendant company returned the check, and refused by letter to make the siding connection at thát time. It was not until September, 1904, that the siding was constructed and connection made. This was more than three years after the date of the original application. The plaintiffs claim that by reason of the discrimination against them in refusing for more than three years to allow them a connection with the siding, they were unable to develop their mine, and market their coal during that time. Under the provisions of the act of 1883, they claim to recover treble damages for the injuries, thus sustained. The question of whether the refusal to grant the siding connection was an undue and unreasonable discrimination against the plaintiffs was submitted for the determination of the jury as a question of fact; as was also the question of the amount of the injury suffered or the loss sustained by plaintiffs as a consequence. The result of the trial was a verdict for plaintiffs for $4,000, single damages, or $12,000, treble damages.

The assignments of error are all to the charge of the court and the answers to points. Counsel for appellant contend in their argument that as the request for a siding was made by James H. Minds without disclosing the fact that he was acting as agent for his sons, the plaintiffs, the defendant company owed no duty to the latter. It appears, however, that in the requests made to the company for the siding connection, the mine for which the siding was desired and the place where the switch was to be connected, were clearly designated. James H. Minds, the father, testified that he was acting for his sons, and it clearly appears that no one else than the sons could have brought this action, or were injured by the refusal of the siding. As the trial judge said, with reference to this matter: “The personnel of the applicants could not legitimately enter into the question of grant or refusal.” This contention seems to us to be without merit. Counsel for appellant further suggest that during a portion of the period in question, from 1901 to 1904, owing to abnormal conditions for which it was not responsible, defendant was unable to move its traffic promptly, and felt obliged to suspend making new siding connections. These conditions were said to have been due to the anthracite coal strike, and defendant’s witnesses testify that they existed from August, 1902, to May, 1903, a period of nine months. It will be noted, however, that the request for the siding was first made in July, 1901, more than a year before these conditions began, and the connection was not finally permitted to be made until September, 1904, more than a year after they had ended. We agree with the view expressed by the trial judge, when he said to the jury, “As a matter of law, however, we do not understand that even the existence of these unusual traffic conditions relieved the defendant company from the duty imposed upon it by the constitution and the law, to furnish equal facilities for transportation to all shippers who desired to make use of the lines. Because the plaintiffs were new shippers did not justify the defendant in refusing to give a switching connection. In this action it is also well to bear in mind that the original application for this siding on behalf of the plaintiffs was made by them nearly a year before the strike and before these unusual conditions arose. The railroad company have a right to impose conditions upon shippers, providing such conditions are imposed upon all proposing shippers. So, also, the manner or method and place for the connections must be determined by the railroad company. But, as we understand the law, when any person having a sufficient amount of coal, and in good faith desires to develop that coal along the line of a railroad and asks for a siding or switch connection, which is the only method by which that product can be shipped economically and profitably, such proposing shipper has the right to demand that he be put upon the same footing with respect to his product as any other producer of a like product, under the same circumstances and conditions, in that locality. To our minds, therefore, it becomes a question for this jury as to whether, under all of this testimony, both on the part of the plaintiffs and on the part of defendant, there has been a case made out of unlawful and unjust, and, therefore, undue and unreasonable discrimination against these plaintiffs, and if you find there has been unjust and unfair treatment, amounting to an undue and unreasonable discrimination, against them, it is for the jury to determine as to when this unfair and unjust discrimination began.”

It is also contended, on behalf of appellant, that a siding connection is not a facility for transportation within the meaning-of the act of 1883. It would seem as though this suggestion could hardly have been made seriously. A facility is anything which promotes ease of performance. It is difficult to imagine a facility more commonly used and recognized as necessary in the transportation of coal from the mines, than the side tracks or switches upon which the railroad cars are loaded. In P. & L. E. R. R. Co. v. Robinson & Rea, 95 Pa. 426, it was held that the law was correctly embodied in a point which set forth “that the defendant company is a common carrier; that its railroad is a public highway; that the plaintiffs have a right in law to construct on their land, upon said railroad, a suitable switch for the uses of their business, and connect the same with the tracks of the defendant company, subject to the general rules of the said company regulating such connection; and that the defendant com pany is bound to receive stnd deliver to and from such switch or siding, cars and freight for the said plaintiffs to and from such points, on the line of defendant’s railroad, as may be designated by plaintiffs, and on equal terms with all other individuals and transportation companies.” In this connection, it was said, in the body of the opinion by Mr. Justice Gordon, in the same case, “It is conceded that under our acts of assembly, the owners of mills and manufactories may of right connect their private sidings with the railroads in their vicinity.” In the case of Olanta Coal Mining Co. v. Beech Creek R. R., 144 Fed. Repr. 150, which was a bill in equity to compel the railroad to permit switch connections with its line, to enable complainant to ship its coal to market, Judge Buffington said: “In mining, coal is carried from the mines in small cars and delivered to and carried by railroad companies in car load lots. To do this requires sidings on which the railroad’s cars may be conveniently handled and filled. Such a connection the complainant asks, and is willing to bear the expense of making.” And in that case a decree was awarded requiring the railroad to make the connection.

In the present case, in plaintiffs’ fifth point, the rule for ascertaining the damages was thus stated: “The measure of the plaintiffs’ damage is the difference between the cost of mining and delivering the coal on the railroad cars, adding thereto the royalty paid under the lease, and the fair average selling price prevailing in the region where their mine was situate, during the period extending from and after the time when the railroad company, by the use of reasonable diligence, could have placed the switching connection, to November 1, 1904, when this action was brought, upon all coal which the jury find from the evidence, that plaintiffs could and would have been reasonably able to mine and sell, except for the refusal of the defendants to grant the plaintiffs the siding or switching connections asked for.” The trial judge answered as follows: “This point is affirmed, with what might be called a qualification. What the law allows the plaintiffs for their injuries is compensation, and in order to get at that compensation you have a right, in the words of the point, to take into consideration the difference between the mining cost and the fair average selling price in the mining region at that period. • But that is not necessarily and absolutely the measure of damages. You must in reaching the fair average price in the region also take into consideration all kinds and classes of coal, as I said to you before. As you heard testified here, there is what is called contract coal, and free or spot coal, and fuel supply coal. You might also classify railroad or fuel coals, whether furnished to the defendant railroad company or to other railroads. It would seem from this testimony that it is considered advantageous bn the part of all operators to get railroad orders and to have contract coal, that is, in order that they may be better able during the year to advantageously operate their mines. We say to you, therefore, that it does not follow that, at least during a portion of the period claimed by these plaintiffs, when high prices prevailed, they were entitled to the high averages shown by any such figures. What the law contemplates is to give compensation and that is what you are to arrive at in the light of all these prices.”

Under the circumstances of this case, we do not see how any better or fairer rule for the ascertainment of the damages could have been suggested or applied. Objection is made upon the part of appellant to estimating the loss upon unmined coal, but this objection is fairly met in that portion of the opinion of the trial judge in overruling the motion for a new trial, in which he said: "Where the discrimination alleged against the common carrier was the refusal of a siding, as here, if the contention of the defendant is correct, there could practically be no damages, and the railroad company would be safe at all times in illegally refusing sidings. Coal cannot be mined except by virtue of a siding. Unmined coal, that is, coal which plaintiff was unreasonably prevented from mining by reason of the refusal of a siding, must necessarily enter into the consideration of a jury in determining thé measure of damages, which, as we instructed the jury, was compensation only. We are wholly unable to see how any other theory could be worked out. The refusal of a siding is perhaps the most injurious form of discrimination and if mined coal only could be considered by the jury in estimating the compensation which should be allowed for the offense of refusal, it would seem to us that the law would provide a very inadequate remedy.”

The question of the right of the plaintiffs to treble damages depends upon whether the act of June 4, 1883, has been repealed by either of the Acts of May 31, 1907, P. L. 352, and P. L. 354. We have considered this question, and disposed of it in the opinion handed down this day in Jackson v. Pennsylvania Railroad, ante, p. 566, and have there indicated our reasons for holding that the act of 1883 was not repealed by the acts of May 31, 1907, and that all the statutes in question rnay stand as part of a common purpose by the legislature, to make effectual the mandate of the constitution against discrimination by common carriers. The act of 1883 provides a remedy for the party injured; the later acts have no reference to parties discriminated against, but provide in the interest of the general public for proceedings at the instance of the commonwealth, through the attorney general, for attacking or restraining violations of the law in this respect. They also make such violation of the law a penal offense, punishable by a fine. The purposes of the different acts are not inconsistent, and we see no difficulty in construing them so that they may stand together, each for its appropriate purpose and use.

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

Stewart, J., dissents.


author: Mr. Justice Mestbezat,

text:
    Swift, Appellant, v. Harbison-Walker Refractories Company et al.

      Deeds — Habendum clause — Life estate — Contingent remainders — Sale under Price,: act — Petition—Jurisdiction.
    1. Under a deed which purports to vest a fee simple title in the grantee, but for a proviso in the habendum clause that in case grantee shall survive her husband the estate shall immediately vest in her children, and in case of no issue then her estate to be limited to a life estate with remainder after her death in the heirs at law of her husband, any interest the children may acquire under this deed is contingent during the lifetime of the husband and wife.
    2. A petition presented to the common pleas under the Price act averring the execution and recording of such a deed to the mother, quoting the habendum, including the proviso of that deed, and setting forth that the purchase money of the sale, subject to the life estate of their mother, is to belong to the'children then bom and those that may thereafter be born, and that the deed is to convey, a fee to the grantee, contains sufficient jurisdictional facts to authorize the court to decree a sale of the interests of the children.

      Sale — Real estate — Price act — Lapse of time — Presumption as to compliance with statutory provisions.

    3. A court taking jurisdiction under the Price act which imposes on it certain duties of investigation before making the decree of sale, will be assumed, after the expiration of more than a quarter of a century, in the absence of anything to the contrary being disclosed, to have performed those duties and to have required the petitioners to comply with the provisions of the statute before entering the decree.
    Argued April 21, 1910.
    Appeals, Nos. 104 and 105, Jan. T., 1910, by plaintiffs, from decrees of C. P. Clear-field Co., Dec. T., 1907, Nos. 1 and 2, dismissing bills in equity in cases of Samuel Swift, next friend of Verda Clark et al., v. Harbison-Walker Refractories Company et al. and Ida Mary Swift and Lulu DeLeon v. HarbisonWalker Refractories Company et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for appointment of a receiver and an accounting, and that plaintiffs be declared owners of an undivided interest in certain property. Before Smith, P. J.
    Mary Lansberry, wife of Robert Lansberry, by deed dated November 22, 1872, conveyed to her daughter-in-law, Louisa Ella Lansberry, wife of Lorenzo Lansberry, sixty acres of land in Bradford township for the consideration of $1.00 and love and affection. The habendum clause of the deed was as follows:
    “To have and to hold the said described premises, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Louisa Ella Lansberry, her heirs and assigns to and for the only proper use and behoof of the said Louisa Ella Lansberry, her heirs and assigns forever. Provided, however, and it is part of the consideration for this conveyance, that in case the said Louisa Ella Lansberry should survive her said husband the above described estate is to immediately vest in her children that shall be the issue of her marriage, with her present husband, the said Lorenzo Lansberry, and in no collateral heirs of hers, and in case she should have no issue with her said husband then her estate in the same is to be limited to a life estate in her and after her decease shall vest in the heirs at law of her said husband. In any event the said Louisa Ella Lansberry is to have a life estate in said land.”
    At the time of the conveyance Louisa Ella Lansberry and Lorenzo Lansberry had had no children born to them. Since that date five children were born, Ida and Lulu, born in 1876, Verda, born January 26, 1884, Pearl, born December 16, 1888, and Paul, born March 13, 1891, all living at time of suit brought.
    Some time prior to January 21, 1881, Reuben McPherson was appointed guardian of Ida and Lulu, then born and under fourteen years of age. And on January 21, 1881, Reuben McPherson, together with Lorenzo and Louisa Ella Lansberry, as guardian, presented a petition to the court of common pleas of Clearfield county praying for authority to make a private sale of the tract in question. The court decreed the . sale on January 21, 1881, and in pursuance of the decree a sale was made on January 24, 1881, to Jonathan Boynton in fee, under whom defendants claim.
    July 1, 1910:

      Error assigned was dismissal of the bills.

      David L. Krebs and A. L. Cole, with them A. M. Diveright, for appellants.
    The estate vested in the children as soon as the first child was born and the court had then no right to decree a sale under the Price act: Keller v. Lees, 176 Pa. 402.
    The deed of sale as decreed by the court was void as the petition for the sale contained no explanation of title, nor of the purpose to defeat the contingent remainders: Smith v. Townsend, 32 Pa. 434.

      Thomas H. Murray, with him James P. O’Laughlin and Hazard Alex. Murray, for appellees.
    By the Robert Lansberry deed Louisa Lansberry took a fee simple estate: Taylor v. Taylor, 63 Pa. 481; Fisher v. Wister, 154 Pa. 65; Snyder’s App., 95 Pa. 174.
    The contingent interest passed under the deed to Boynton under the Price act of 1853: Grenawalt’s App., 37 Pa. 95; Reiff’s App., 124 Pa. 145.
   Opinion by

Mr. Justice Mestbezat,

We are all of opinion that the learned chancellor was right in dismissing the bills in these cases.

It is clear that aside from the proviso in the habendum clause, Louisa Ella Lansberry took a fee simple title in the real estate under the Robert Lansberry deed. The appellants claim under the proviso, but by its express terms they take no estate unless their mother, Louisa Ella Lansberry, “should survive her husband.” As both Louisa and her husband were living at the time the bill was filed and are still living, it is difficult to see what standing the appellants have to attack the appellees’ title to the real estate in controversy. Be this as it may, however, and conceding that Louisa took a life estate by the deed of Robert Lansberry and wife, the interests of the children were contingent and were divested by the proceedings in the common pleas and the deed of January 24, 1881. The deed of Robert Lansberry and wife did not grant to Louisa Ella Lansberry a life estate with remainders in fee to the latter’s children, but the interests of the children are, by the habendum proviso, expressly made contingent upon their mother surviving their father. In the event of such survivorship only, “the above described estate is to immediately vest in her children.” If the children have any interest or estate . in the premises, it was acquired by this clause of the proviso, and, therefore, the estate of the children depends upon the contingency of their mother surviving their father, and vests only on the happening of such contingency.

We do not think there is any merit in the contention that the petition presented to the common pleas under the Price act did not contain sufficient jurisdictional facts to authorize the court to decree a sale of the interests of the children in the real estate. The objection is that the petition does not set forth an explanation of the title and the intention to defeat the contingent remainders, as required by the proviso to the fifth section of the Act of April 18, 1853, P. L. 503, 4 Purd. 4024. But this view results from a misapprehension of the contents of the petition. It avers the execution and recording of the deed from Robert Lansberry and wife; quotes totidem verbis the habendum including the proviso under which the children acquire any interest or estate they may have; sets forth that the purchase money, subject to the life estate of their mother, is to belong to the children then born and those that may thereafter be born; and that the deed is to convey a fee simple estate to the grantee. We think this complies with the provisions of the act of 1853, so far as the petition is required to set forth an explanation of the title and the intention to defeat the remainders. It would have been better had the averment of these facts been direct instead of being in the form in which they appear, but the petition leaves no doubt as to the title and the purpose of the parties in making the sale to bar the estate of the children. The power of the court on proper application to authorize the sale under the act of 1853, enlarged by the Act of June 14, 1897, P. L. 144, is unquestioned, and the former act specifically provides that the title of the purchaser “shall be unprejudiced by. any error in the proceedings of the court.” The court having jurisdiction and the act imposing on it certain duties of investigation before making the decree of sale, we must assume after the expiration of more than a quarter of a century, in the absence of anything to the contrary being disclosed, that it performed those duties and required the petitioners to comply with the provisions of the statute before the decree was entered. Omnia prsesumuntur rite et solemniter esse acta, donee probetur in contrarium. We think the petition is sufficient to confer jurisdiction on the common pleas, and that the deed of January 24, 1881, conveyed a fee simple title to the purchaser.

Both appeals are dismissed at the costs of the appellants.


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    National Aniline & Chemical Company v. American Credit Indemnity Company, Appellant.

      Principal and surety — Indemnity bond — Construction.
    Where the bond of a credit indemnity company provides that “in case this company issues to the indemnified a new bond prior to the expiration of this one, losses occurring during the term of the new bond on sales of merchandise shipped within the twelve months immediately prior to the expiration of this bond shall be covered and may be proven under this new bond, subject to its provisions and limitations, the same as though the goods had been shipped during its term,” and a new bond is so issued, there can be no recovery for loss occurring during the pendency of the second bond on goods sold during the pendency of the first to a class of purchasers included in the old bond but excluded by the provisions of the new.
    Argued April 21, 1910.
    Appeal, No. 381, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 600, for want of a sufficient affidavit of defense in case of the National Aniline & Chemical Company v. American Credit Indemnity Company of New York.
    Before Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit on an indemnity bond. Before Brjégy, P. J.
    The facts appear in the opinion of the Supreme Court.

      Error assigned was in entering judgment for want of a sufficient affidavit of defense.

      John G. Johnson, with him James Wilson Bayard, for appellant.
    The appellee’s loss was not covered by the terms of the second bond: Hogg v. American Credit Indemnity Co., 172 Mass. 127 (51 N. E. Repr. 517); American Credit Indemnity Co. v. Woolen Co., 92 Fed. Repr. 581; People v. Mercantile Credit Guarantee Co., 166 N. Y. 416 (60 N. E. Repr. 24).

      George P. Rich, with him Arthur H. Scherer, for appellee.
    The bonds are to be construed together: American Credit Indemnity Co. v. Champion Coated Paper Co., 103 Fed. Repr. 609; Wallace v. Insurance Co., 41 Fed. Repr. 742; Wadsworth v. Jewelers’ & Tradesmen’s Co., 132 N. Y. 540 (29 N. E. Repr. 1104); Tebbitts v. Mercantile Credit Guarantee Co., 73 Fed. Repr. 95; Teutonia Fire Ins. Co. v. Mund, 102 Pa. 89; Hoffman v. Ins. Co., 32 N. Y. 405; Western Ins. Co. v. Cropper, 32 Pa. 351; Merrick v. German Fire Ins. Co., 54 Pa. 277; Humphreys v. Nat. Benefit Assn., 139 Pa. 264; Bole v. New Hampshire Fire Ins. Co., 159 Pa. 53.

      July 1, 1910:
   Opinion by

Mr. Justice Potter,

In this action of assumpsit the plaintiff sought to hold the defendant liable upon certain bonds or policies of credit indemnity. Upon a rule for judgment for want of a sufficient affidavit of defense judgment was entered by the court below, in favor of the plaintiff and against the defendant, the credit indemnity company. The determination of the question here involved, depends upon the proper construction of the terms and conditions of the bonds upon which suit was brought. It appears that on December 5, 1906, the defendant issued its bond to plaintiff, guaranteeing it, to the amounts specified, against actual loss which might be sustained through the insolvency of certain debtors, during the term of the bond. That term was defined as from December 1, 1906, to December 31, 1907. The bond states that it does not cover • any loss occurring after its expiration, and further that it covered no loss unless the debtor to whom the goods were shipped, had, at the date of the shipment of the goods, a certain rating as to capital and credit in Bradstreet’s Commercial Agency. By a rider attached to the bond, it was further provided that under certain conditions tfie liability ' should extend to losses through debtors not having such ratings, if their accounts were guaranteed by parties who were rated. By still another provision in the bond, it was agreed that in case the credit company should issue a new bond to the plaintiff, and the premium be paid within the term of the first bond, losses occurring during the term of the new bond upon sales .and shipments of merchandise made within a certain prior period, should be covered by the new bond, subject to its provisions and limitations, the same as though the goods had been shipped during its term. A new bond was issued by the defendant company to the plaintiff under date of December 14, 1907, covering the term ending December 31, 1908. Its provisions were much the same as those of the first bond, except that the amount of the initial loss to be borne by the indemnified, was somewhat raised, and no rider was attached to the second bond extending the liability to debtors not having the requisite ratings. During the term of the first bond plaintiff sold and delivered goods to a debtor not rated in the commerical agency but whose account, in accordance with the conditions of the rider attached to the first bond, was guaranteed by one who was so rated. A loss occurred upon such sale, not during the life of that bond, but during the term of the second bond. The court below intimated that in its opinion, the question of defendant’s liability under these circumstances was a close one; but ruled it against defendant, and entered judgment. Counsel for appellant concede the soundness of the principle that a policy of insurance is to be construed most strongly in favor of the insured in all questions of doubtful meaning; but they maintain that the clauses of the contract here involved, are clear and explicit, and not of doubtful meaning. We have the fact that the loss arose upon goods sold to the Ford Morocco Company in 1907, during the term of the first bond. As noted above, this firm did not have the required commercial rating, but payment of the account was guaranteed by Stetson & Company, a firm which was rated as required. Both principal debtor and guarantor became insolvent, but not during the term of the first bond. If the insolvency had occurred during the term of the first bond, the defendant would clearly have been liable. Under clause 7 of the first bond, as we have already noted, it is provided that in case a new bond is issued, and the premium therefor is paid prior to the expiration of the first bond, “losses occurring during the term of the new bond, on sales of merchandise shipped and delivered within the twelve months next prior to the expiration of this bond shall be covered and may be proven under the new bond, subject to its provisions and limitations, the samé as though the goods had been shipped during its term.” By the provisions of the new bond, and the rider attached to it, which by its terms supersedes and takes the place of clause 7 of the first bond, only such losses are covered and provable as occur on sales to debtors who have the prescribed rating by the commercial agency. There is no reference of any kind to guarantors or to any guarantee in the second bond. Therefore it seems to be clear that no recovery for the loss of a guaranteed account can be had under the second bond, where the principal debtor is not commercially rated as required. As we have already seen, the terms of the first bond forbid a recovery under it for a loss occurring after its expiration, and the extended liability by reason of the new bond is to be covered only in the same way as upon goods sold during the term of the second bond. It follows, therefore, that defendant is not liable under either bond, for the loss for which indemnity is claimed in this case, because it occurred after the termination of the first bond, and the circumstances of the sale do not bring the transaction within the prescribed terms of the second bond, as that contains no provision making the company hable for an account against a debtor having no commercial rating. Very similar questions, under somewhat corresponding provisions in bonds issued by this same defendant company, have arisen in two cases-in the United States circuit court of appeals for the sixth circuit: American Credit Indemnity Co. v. Woolen Mills, 92 Fed. Repr. 581, and American Credit Indemnity Co. v. Champion Coated Paper Co., 103 Fed. Repr. 609. The decisions in those cases were based on a construction of a clause numbered 8, of the bonds there in question, which was the corresponding clause to number 7 in the present case. The clauses were so construed as to extend the benefit of the old bond to cover salós of goods made under that bond, in accordance with its terms and conditions, though the losses did not accrue during the life of the first bond. After those decisions were made, the defendant company apparently changed the language of its bonds, in order to protect itself against the construction placed upon clause 8, and substituted the present clause 7, in the bonds involved in the case at bar, for clause 8 in the bonds which were before the court in the cases above cited. Clause 8, as construed in the opinions of the federal court, provided that losses occurring after the expiration of the original bond, “may be proven under such renewal bond in accordance with the terms and conditions of such renewal.” Clause 7 of the present bond goes further and is much more explicit, in that it provides that such losses “shall be covered and may be proven under the new bond, subject to its provisions and limitations, the same as though the goods had been shipped during its term.” The difference in the two provisions is apparent. Under the former clause it was held that the losses intended to be protected by the renewal were those covered by the terms of the bond current when the sales were made. As the clause now stands in the contract, we think it constitutes a clear stipulation that in extending the term of protection of the first bond into the period covered by the second bond, the loss, if any, is to be adjusted as though it had occurred upon goods sold and shipped during the term of the second bond. The change seems to have been made by the defendant company for the express purpose of meeting the adverse construction of the clause by the court, as above referred to; and it seems to us to be sufficiently clear and definite to accomplish the purpose intended.

The judgment entered in the present case, for want of a sufficient affidavit of defense, is therefore reversed.