author: Mr. Justice Stewart,

text:
    Bergner v. Bergner, Appellant.

      Principal and agent — Purchase of stock — Compensation of agent— Continuance of the relation.

    Where a person offers himself as an agent for the purchase of stock of a corporation, and his offer is accepted, the fact that he is not to receive compensation from the principal, does not affect the relation of principal and agent.
    Where an agency has been once entered upon, except the contrary be shown, the law will presume that whatever was done in furtherance of the original scheme which the agency was created to effect, was done under and through the agency. The burden of showing that the relation was changed before or during the transaction, rests upon the party so affirming. »
    An agent to purchase cannot be allowed, except as his principal assents, to purchase for himself. He can acquire nothing by such adverse purchase, even though he contribute of his own means or credit to effect it; the product will belong to the principal exclusively.

      To relieve an agent from the duties and obligations which he has assumed as such, his renunciation of the agency must not only be positive and unequivocal, but it is essential that it be made known to the principal. An undisclosed purpose to renounce is without effect. As the intelligent assent of the parties is necessary to establish the relation, so its dissolution must rest upon the knowledge of both.
    Where a son without means of his own requests his mother to permit him to purchase in his own name with moneys provided by her, certain blocks of stock of a corporation in which the son is an official, and it appears that the stock is to be offered for sale at intervals, and that both parties know that the moneys of the mother will not be sufficient to purchase all of the stock, the son does not effectively renounce his agency by saying to his mother after her moneys are exhausted, that he is going out to do something for himself, and thereafter pledging with his own notes the stock previously acquired, and using the proceeds thereof to purchase the stock subsequently offered for sale.
    Argued April 3, 1907.
    Appeal, No. 124, Jan. T., 1907, by defendant, from decree of C. P. No. 5, Phila. Co., Dec. T., 1905, No. 4,172, on bill in equity in case of Ella Annear Bergner v. Gustavus W. Bergner.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account.
    Complainant averred in her bill that her son purchased for her stock in the Bergner & Engel Brewing Company, in which he was employed, with money furnished by her; that subsequently he purchased for her additional stock of the brewing company and also of the T. M. O’Brien Coal Company, with money furnished by her, title being taken in his name, but as the market price of the stocks was greater than the amount advanced by her the balance was raised by the son as trustee using the stocks as collateral; that he agreed to pay interest and reduce the principal out of the dividends and pay the balance to her; that he had, nevertheless, refused to pay over such balance of dividends due her, and, denying that he is her trustee, had further incumbered the collateral by making thereon a personal loan to himself ; that he had inconsistently offered various compromises and settlements to her, and had threatened to have the loans called. The prayer was for the appointment of a receiver to take up and hold the stock pending suit, for an injunction enjoining any sale, for a decree that the son is her trustee for all the stock, and for an accounting.
    The separate answer of Gustavus W. Bergner averred that the facts are as follows : The husband of complainant died in May, 1903, insolvent. He had large holdings of stock in the Bergner & Engel Brewing Company, which were hypothecated for loans. In February, 1904, one of these loans was called, and the son, knowing that his mother had received a considerable sum from the sale of a property standing in her name at Bar Harbor, advised her to purchase the stock. She accordingly gave him the necessary money, and he purchased the stock for her.
    In April, 1904, a second loan ($20,000) was, called, but she had only $11,800 available for investment. She, however, gave Mm authority to use the stock previously purchased to borrow money for his own benefit, and he so borrowed $6,250 on his own note with the stock as collateral, and with the combined amounts purchased the stock which was offered for sale.
    In May, 1904, a third loan was called, and the mother having no money for investment gave her son permission to use for his own benefit that portion of the second purchase which belonged to her.
    Accordingly he purchased the stock, partly with his own money, but almost entirely with money obtained on his personal notes, using the stocks of both the second and third purchases as collateral. He also secured a guarantee of the interest for one year on the larger loan. He denied that he is a trustee except for the first and a portion of the second purchase. He averred that no regular account was ever rendered by him or demanded by complainant, but that he has paid the interest on the loans when due, and has advanced to complainant out of the dividends more than she is actually entitled to; that she has at various times, through counsel, requested an adjustment, but never claimed all of the stocks, and that agreements were twice drawn and agreed to by him and complainant, placing all the stock in trust and providing for a division of the net income, but which she later refused to execute, in none of which did she claim ownership of the entire number of shares, and that a third settlement, in which she was to receive the amount of stock actually purchased with her money, was in process of adjustment when complainant filed her bill without notice.
    The auditing judge, Martin, P. J., reported as a conclusion of law that the complainant and defendant were joint owners of all the stock, except that which was purchased at the first sale, and that each was entitled to share in proportion to the money contributed respectively to the purchase price.
    The court in banc, in an opinion by Ralston, J., modified the finding of the auditing judge, and entered a decree directing the defendant to assign all of the stock to the complainant5 and account to her for dividends received.

      Errors assigned were various findings of fact and conclusions of law, and the final decree.

      John G. Johnson, with him Ellis Ames Ballard, for appellant.

      Thomas Leaming, for appellee.
    October 21, 1907:
   Opinion by

Mr. Justice Stewart,

The findings of fact in this case serve inadequately to indicate the real question in issue. There is no separate and distinct finding with respect to the original convention of the parties to the present controversy. That there was such convention is a fact that admits of no dispute, and the evidence abundantly discloses the object, terms and scope of the undertaking that was to be entered upon pursuant thereto. Any statement of the case from which these matters are omitted must necessarily be imperfect; they have a significance too large to be overlooked. That they may be derived inferentially from such facts as have been specifically found, may be true' in a measure; but to give them no larger expression is either to obscure or depreciate them, likely both. “"Whenthe appellate court is satisfied that facts, have been found without proof, or material facts established by the proofs have not been found, it follows that there has been plain mistake. In the several stages of the proceeding there is no place for perfunctory consideration of the evidence relative to the facts in dispute.” Worrall’s App., 110 Pa. 349. That the true issue may be clearly defined, a brief statement of the facts as we find them to be — and here we avoid all controverted matters — is necessary.

C. W. Bergner, the husband of plaintiff, and father of defendant, who before his death, proved to be insolvent, had pledged with the Northwestern Bank as collateral for certain loans made to him, stock in the Bergner & Engel Brewing Company, and stock in the O’Brien Coal Company, and had also pledged a still larger amount of the Brewing Company’s stock with the Fourth Street National Bank as collateral for like loans. The scheme proposed by the defendant to the plaintiff contemplated the purchase of this stock for the latter, the purchase to be made by the defendant in his own name, he to be permitted to so hold it in order to secure to himself the voting power of the stock, but all the money required to effect the purchase was to be supplied by the plaintiff. In the financial result of the undertaking, whether it should show profit or loss, the defendant was to have no share. He was an official of the brewing company, and the benefit he expected to derive from the transaction was in the larger support he would have with this stock in friendly hands. It was contemplated that by selling certain real estate which she owned, the plaintiff could realize in cash upwards of $47,000. While it was not expected that all the stock could be purchased for any such sum, it was thought that with what it did suffice to purchase in hand, a way could be found to obtain the balance. To the scheme as thus presented by defendant, the plaintiff assented, and in furtherance of it proceeded to make sale of her real estate. The result of the sale was disappointing, since it yielded her but $36,500. Notwithstanding this, however, the undertaking was proceeded with, not in the way originally proposed, by paying off the loans and lifting the collateral, but by purchase of the collateral as the loans should be called. This involved no change in object or purpose, but was simply a modification of details. The first block of collateral stock thereafter offered at sale, February, 1904, was 125 of preferred Bergner & Engel held by the Fletcher estate. This block of stock was not one of those referred to when the scheme was originally entered upon, but it was purchased by the defendant with money advanced by .the plaintiff for the purpose, just as though it had been, and he makes no question as to her ownership of it. The next to be sold, April, 1904, was the block of 200 shares of Bergner & Engel preferred and 250 shares of the O’Brien Coal Company stock, held by the Northwestern Bank. On the morning of the day appointed for the sale of this stock, defendant applied to plaintiff for the money necessary to make the purchase. He then discovered that of the money she had received from the sale of her real estate, she had expended — how, it does not concern us to know — including the amount advanced to purchase the Fletcher stock — some $24,000, and that there was left at her command only $11,800, an amount wholly inadequate for the purchase contemplated. The purchase was accomplished, however, by using the $11,800 advanced by plaintiff, supplemented by $6,250, which defendant borrowed on his note by using the stock previously purchased as collateral thereto. The next to be sold, May, 1904, was the block of Bergner & Engel stock held by the Fourth Street National Bank, 671 shares of preferred, and 650 of common. To effect the purchase of this stock, the plaintiff being unable to advance any cash, the defendant paid to the bank $5,000, which he borrowed elsewhere on his own note secured by a pledge of the O’Brien coal stock, and gave to the bank his own note for the balance of the purchase money, $45,000, secured by a pledge of 679 shares of the preferred stock bought in this purchase, together with the 200 shares of preferred Bergner &' Engel stock of a prior purchase, and a guarantee of a year’s interest by several outside parties. The total amount of stock purchased by the defendant in these several transactions, was 1,004 shares of preferred, and 650 common Bergner & Engel, and 150 shares of the O’Brien Coal Company. All of this stock was purchased by defendant in his own name, and he continues to so hold it. The contention on the part of the plaintiff is that the stock is hers; while defendant insists, with respect to all except the stock bought of the Fletcher estate, that it was purchased on a joint account, and that as to so much of it, plaintiff and defendant are joint owners, each entitled to share therein in proportion to the money contributed respectively.

We have stated the original undertaking as understood by the parties when it was entered upon, and have given the facts as to what was actually done. We are now prepared to understand the actual relation in which the parties stood towards each other in the inception. In defining this relation it is well to be exact in terms. That the scheme contemplated an eventual trusteeship in the defendant for the stock purchased in his own name is obvious; but an earlier relation was established by the agreement, and no trust could arise except as something was done under it. This earlier relation was that of principal and agent; nothing more, nothing less. The defendant had offered his services, and had become the plaintiff’s agent for the purchase of this stock on the terms agreed upon. With this much determined, the legal consequences are not open to question. The fact that defendant was not to receive compensation from the plaintiff, does not affect the relation: Rankin v. Porter, 7 Watts, 387. The principles applicable to cases of this kind are familiar and not difficult of application. A not unimportant one in this connection is, that where the agency has been once entered upon, except the contrary be shown, the law will presume that whatever was done in furtherance of the original scheme which the agency was created to effect, was done under and through the agency. The burden of showing that the relation was changed before or during the transaction, rests upon the party so affirming. Another no less important is, that an agent to purchase cannot be allowed, except as his principal assents, to purchase for himself. He can acquire nothing by an adverse purchase, even though he contribute of his own means or credit to effect it; the product will belong to the principal exclusively. It is unnecessary to cite authorities in support of either of these propositions. They result necessarily from the fact that agency is a recognized fiduciary relation; its vital principle is good' faith, wdthout which the relation could not exist. This brings us to the actual open dispute between the parties — the plaintiff insists that the agency continued throughout; defendant contends that it was renounced and abandoned before the purchase was made of the second block of stock, when it was discovered that plaintiff had but $11,800 left to effect a purchase requiring upwards of $18,000, and defendant was compelled to raise the difference on his own note, secured by a pledge of plaintiff’s stock with, her permission. Reduced to fewer words, the question upon which the case turns is, did or did not the defendant renounce and abandon his agency before making this purchase of stock ? There is no specific finding on this point, presumably because none was requested, and yet its controlling significance must be allowed.

The defendant’s right to terminate his agency at any time is conceded. If he exercised it when he says he did, in advance of the second purchase, in a way the law will adjudge sufficient, then his contention as to his ownership of a proportionate part of the stock must be sustained; otherwise not. The qualification as we have stated it is a necessary one; the privilege must be exercised in a way the law will adjudge sufficient. No fixed form or method is prescribed; but to be effective to relieve the agent from the duties and obligations he has assumed, the renunciation must not only be positive and unequivocal, but it is essential that it be made known to the principal. An undisclosed purpose to renounce is without effect. As the intelligent assent of the parties is necessary to establish the relation, so its dissolution must rest upon the knowledge of both. The rule is laid down in 1 Am. & Eng. Ency. of Law (2d ed.), under the title of Agency, page 1082, supported by the authorities there collated is, that “ An agent to purchase will not be allowed to purchase for himself and hold the property in his own name, unless he has openly and notoriously discharged himself from his agency.” However much this statement of the rule may be qualified by varying circumstances, certain it is that a renunciation under any conditions, to enable an agent to do what is here expressed, must be communicated to the principal in such a way as to bring home to him notice of the agent’s determination. It is not pretended that the defendant expressed to the plaintiff a determination to end his agency, at any other time during all these transactions, than on the occasion when he applied to her for money to make the second purchase of stock, and found that she had but $11,800 in cash remaining. It is necessary to recur to his testimony to see just what there transpired. We give the questions and answers. “ Q. Didn’t you take the 125 shares of Bergner & Engel preferred you had bought the month before and multiply it by fifty, and suggest it was possible to borrow $6,250 on that in order to buy the stock for her? A. I said I would try to do it. Q. In order to buy the stock for her ? ' A. No. Q. Haven’t you just said so? A. No. Q. Didn’t you say that you wanted the money to buy this stock for her and you said yes ’ ? A. It certainly would be acquired proportionately. Q. Didn’t you say the reason you wanted more money was to buy the.' stock for her? A. I told her on that morning, because! she hadn’t the money, that I was going out to do something: for myself. Q. That is all you told her? A. Yes, sir. Q. What did she say ? A. She said ‘ all right.’ She was in tears. Q. That is all she said ? A. Yes, sir. Q. And all you said? A. All that I can remember.”

Evidently up to this point of time the defendant recognized the agency he had assumed as continuing. Because he was disappointed in the amount of money the plaintiff could then furnish he determined to renounce it. This is the reason ho gave. It implies that the original scheme for purchasing all the stock had been made impracticable by this shortage of cash. But why should this be so ? The situation then confronting the parties was bound sooner or later to occur in the course of the transaction. Had the entire amount derived from the sale of plaintiff’s real estate been applied to the purchase of the stock, when it came to the last and heaviest sale, the amount remaining in the fund would have been wholly inadequate, and it would have become necessary to borrow money to accomplish the purpose by a pledge of what had previously been purchased. There can be no doubt whatever that such recourse was contemplated from the beginning. What possible difference could it make that the point when borrowing became necessary was reached sooner than the defendant expected ? This fact did not imperil the scheme, as the result showed, for the additional amount required for the second purchase was readily borrowed by a pledge of stock. Hor did it prevent the purchase of the heaviest block by the same method when sold later on. It was altogether unnecessary, if it was defendant’s purpose to renounce his agency, to assign any reason; but when he says that he assigned one which both he and the plaintiff must have known had no basis for support, and that the latter accepted it and acquiesced in what he proposed, at such a cost to herself, without a word of explanation or remonstrance other than expressed by her tears, he affords at least some ground for doubting the accuracy of his statement. We do not find that the plaintiff specifically denies that defendant said in the course of conversation, that he was going out to do something for himself, or that her attention was directed to the remark; but she does deny that he intimated then, or at any other time, that he intended to buy the stock for himself. She says that on this particular occasion he told her he would buy the stock for her. Assuming that he told her what he says he did, that he was going out to do something for himself, did he by this intend that she should understand that his agency was at an end, and should she have so understood it ? While such a remark is entirely consistent with a purpose to-renounce the agency, it is anything but a direct and express declaration of such purpose. That he intended it to have the meaning he would now give it, we think, for several reasons, most improbable. First, because there is nothing in the evidence that shows any abandonment of the objects which the parties set out to accomplish; and, as we have said, nothing had occurred to make the original scheme any more difficult than it must have seemed from the beginning. Second, because he did nothing under this alleged notice that the plaintiff could not have done as effectively without his assistance; what he did was to raise money on his own note by a pledge of her stock. It does not appear that her note would not have answered quite as well or that she was ever asked to give it. Third, because nothing the defendant could do, except as plaintiff furnished the means, could avail anything in accomplishing the particular object in which he had the deepest interest, namely, securing for himself the voting power of the stock. This last could be effected only as he used such resources as the plaintiff could supply, for, so far as the evidence warrants any inference on the subject, defendant was absolutely without resources of his own. He borrowed nothing for the second purchase except what he obtained on a pledge of plaintiff’s stock, and in the entire transaction he advanced but $135 of his own, which in the end he charged up to plaintiff’s account. His letters show how keenly alive he was to the importance of lodging the Bergner & Engel stock in friendly hands. This was his stake, on which he admits his business future depended. As the facts appear, he could imperil it only as he separated himself from the plaintiff in the undertaking. It is not reasonable to suppose that he so intended. These same considerations make it most improbable that the plaintiff could have understood from the remark a purpose to change the relation theretofore existing.

Mor does the subsequent conduct of the parties furnish ground for any different conclusion. It would extend this opinion unduly were we to review here the evidence on this branch of the case. In the several efforts that were made to settle and compromise, it is true that plaintiff demanded much less than her present claim; but nowhere do we find any admission on her part that any change had been made in the original agreement under which the entire ownership of the stock was to be in her. On the other hand, the whole course of the defendant’s dealing with the plaintiff throughout; the partial accounts and settlements he submitted to her; the acknowledgment he wrote himself and subscribed containing a clear admission that the stock purchased was the plaintiff’s; the fact that in an account rendered he charged her with the sum of $135 which he had advanced in connection with the third purchase, which ho now claims was wholly for himself; the admissions testified to by Mr. Warwick to the effect that the stock was the plaintiff’s, all these considered, even in the light of the defendant’s explanations, leave the case clear of all possible doubt.

In the issue raised the burden was upon the defendant. The bill alleged, not in so many words, but substantially, an agency, and that the stock was purchased under it. The answer admitted the agency, but alleged that it had been abandoned before the completion of the transaction. The bill charged that a trust resulted. This the answer denied. The inquiry thus became an open one. Though the trust and all. the circumstances out of which it arises, may be denied under oath in the answer, yet the facts may be proved by parol in opposition to the answer: 1 Perry on Trusts, p. JL09.

In conclusion we repeat, the governing question in the case is one of mixed law and fact — did the defendant acquit himself of his agency ? Upon the law and evidence we find that lie did not. It follows that the stock he purchased belongs to the plaintiff. In placing himself in antagonism to his principal he has burdened himself with the costs of this proceeding. The final decree in the court below does justice between the parties, and is affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown,

license: Public Domain

text:
    Hollenback Coal Company, Appellant, v. Lehigh & Wilkes-Barre Coal Company.

      Mines and mining — Coal lease — Sale of coal — Contract.
    By a contract in writing an owner of coal demised, leased and to mine let to another “all that vein or seam of coal known as the Baltimore vein, and the veins, or seams of coal underlying” it. By another clause it was agreed “that at the end of said term the said party of the second part shall leave the mines worked under this lease in such good condition .and so far prepared for future workings as that at least one hundred thousand tons of coal can be mined the next succeeding year from the then existing coal workings without injury to, or robbing of the mines.” In still another clause it was stipulated that the lessee in consideration of certain rentals should be permitted to “mine and remove from said premises of the veins hereby leased, 100,000 tons of coal of 2,240 pounds each, of a size which will pass over a screen of five-eighths inch mesh in each and every year of said term.” Held, that the lessee could only remove after mining, such broken coal as would pass over the five-eighths inch meshes.
    Mitchell, C. J., dissents.
    Argued April 16, 1907.
    Appeal, No. 20, Jan. T., 1907, by plaintiff, from decree of C. P. Luzerne Co., May T., 1903, No 5, dismissing bill in equity in case of The Hollenback Coal Company v. The Lehigh Wilkes-Barre Coal Company.
    Before Mitchell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Reversed.
    Bill in equity for an injunction.
    The bill set forth :
    That on December 30, 1869, the plaintiff, a Pennsylvania corporation, leased, demised and to mine let unto the defend-, ant’s predecessor “ all that vein or seam of coal known as the-Baltimore vein, and the veins or seams of coal overlying the Baltimore vein,” upon certain lands of the plaintiff, together with certain surface, which lease and the several extensions thereof, ended October 1, 1900.
    That during the term of said lease a certain culm bank, known as the Diamond bank, accumulated on a portion of said surface as a result of the mining operations in the Baltimore and overlying veins.
    That under said lease only coal of such size as will pass over a five-eighths inch mesh was intended to be sold, and everything under that size and coal thrown out and not marketed by the lessee belonged to the lessor. That, even if this were not the case, said coal became the property of the lessor after the termination of the lease.
    That plaintiff leased to the defendant the veins of coal underlying the Baltimore on April 1, 1887, and also part of same surface, and that said surface was so again leased only to enable the lessee to mine the coal underlying the Baltimore.
    That on February 25, 1903, plaintiff notified defendant of its desire to reclaim a portion of said surface, and defendant made answer that the surface mentioned in said notice was almost entirely covered by culm owned by defendant, which it intended to screen, that such reclaiming would interfere with the business of defendant, and that defendant declined to accede to the request.
    The bill prayed.
    1. That a decree be entered declaring title to the said culm to be in the plaintiff.
    2. That the defendant be required to release to the plaintiff the land described in the reclaiming notice.
    3. That defendant be restrained from using, leasing, screening, selling or interfering with the rights of the plaintiff in the Diamond bank.
    The material portions of the lease are quoted in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Thomas Darling, of Woodward, Darling & Morris, for appellant,
    cited: Gallagher v. Hicks, 216 Pa. 243; Denniston v. Haddock, 200 Pa. 426; Lehigh Coal & Nav. Co. v. Harlan, 27 Pa. 429; Berridge v. Glassey, 112 Pa. 442; Genet v. Del. & Hudson Canal Co., 163 N. Y. 173 (57 N. E. Repr. 297).

      George R. Bedford, with him Paul Bedford, for appellee,
    cited: Hoyt v. Coal Company, 12 Luzerne Legal Register Rep. 1; Dunham v. Haggerty, 110 Pa. 560; Lance v. Coal Co., 163 Pa. 84.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

In Denniston v. Haddock, 200 Pa. 426, we said, through the present Chief Justice : the expression that a conveyance of coal in place, even by a lease for a limited term is a sale, is inaccurate as a general proposition of law, and unfortunate from its tendency to mislead. . . . "Whether it would be better to call such an instrument accurately what it certainly was at common law, a lease without impeachment of waste, or to endeavor to reconcile all the decisions by calling it a conditional sale, is not necessary at present to discuss. The point to be noted is that the rules applicable to sales are not to be applied indiscriminately to such instruments but each is to be construed like any other contract by its own terms; ” and again, in the very late case of Gallagher v. Hicks, 216 Pa. 243: “ Nor is it disputed that a contract regarding coal in place may be a sale absolute, a conditional sale or a lease. There is nothing revolutionary in the cases referred to. In Denniston v. Haddock it was pointed out that in Hope’s Appeal, 29 W. N. C. 365, there was in fact a sale of the coal in place and the case was correctly decided on that basis. But an unfortunate expression in the opinion had been the starting point of a tendency to class together all contracts about coal in place as absolute sales without due regard to each particular contract and the obligation to interpret it by its own terms and intent. What Denniston v. Haddock and the cases which have followed it did was to check the tendency to indiscriminate lumping of all such contracts together and to recall in regard to them the true principles of construction applicable alike to all contracts.”

In the present case the determination of the controlling question raised — the ownership of coal which passed through the five-eighths inch meshes in the screens — must depend upon the terms of the agreement between the appellant and the Wilkes-Barre Coal & Iron Company, executed December 30, 1869, no matter by what name it may be called. Under it the appellee, as the successor of the original lessee, claims ownership of this coal, while the appellant insists that by it such ownership did not pass. At the time the agreement was executed this small coal had no marketable value; now it has, but this is not material, if the intention of the parties clearly appears on the face of their agreement as to what should pass to and become the property of the lessee. If their intention was there expressed as to what, and what alone, could be mined and removed from the premises, the expression of that intention is now the law between them as to the coal which neither, on December 30, 1869, may have regarded as having any value.

The lessor demised, leased and to mine let unto the Wilkes-Barre Coal & Iron Company All that vein or seam of coal known as the Baltimore vein, and the veins or seams of coal underlying ” it. This, without more, gave the lessee the right to mine all the coal from the veins named ; but that a sale of all the coal in place was not contemplated, that the veins were not to be exhausted, clearly appears from a subsequent clause, in which it was agreed “ that at the end of said term the said party of the second part shall leave the mines worked under this lease in such good condition and so far prepared for future workings as that at least one hundred thousand tons of coal can be mined the next succeeding year from the then existing coal workings without injury to, or robbing of the mines.” We have then instead of an actual sale of the coal in place, a mere license to work the veins upon the express condition that all the coal should not be taken from them.

Did all the coal that the lessee had the right to take from the veins become its property as soon as mined ? If the terms of the lease were simply that, in consideration of the payment of stipulated sums, the veins could be mined and the coal taken away from them upon any basis for royalties agreed upon by the parties, the lessee would have the right to remove from the premises all the coal mined, without regard to the sizes into which it might be broken. Such, however, is not the agreement. In a clause not inconsistent with nor repugnant to any other in the lease the lessee is permitted, in consideration of certain annual rentals — $30,000 for a period of four years, $35,000 for a period of five years, $40,000 for a second period of five years, and $45,000 for a third period of five years — to “ mine and remove from said premises of the veins hereby leased, 100,000 tons of coal of 2,240 pounds each, of a size which will pass over a screen of five-eighths inch mesh in each and every year of said term.” In express terms it was thus stated what the lessee might remove after mining, and- this was the broken coal that would pass over the five-eighths inch meshes. Expressio unius est exclusio alterius. In the face of what is expressly given to the lessee in return for the rentals or royalties to be paid by it, it cannot ask that the law give it more. The parties agreed what the one should pay and just what the .other should get for its money, and the appellee, having got .all that the lease gave it, cannot get more.

The learned judge below was of opinion that the clause upon 'which the appellant relies, if standing alone,' might fairly .lead to the conclusion that the intention of the parties was i that the lessee should have the right only to mine and remove :from the premises demised such coal as would pass over a : screen of five-eighths of an inch mesh ; ” but he held that the (case was controlled by Dunham v. Haggerty, 110 Pa. 560, and Lance, to use, v. Lehigh & Wilkes-Barre Coal Company, 163 Pa. 84, though recognizing the dissimilarity of the language of the leases in those cases and the present. The clause is to ibe construed as if it did stand alone, for, as stated, there is .nothing in any other part of the lease inconsistent with the .meaning of its plain words, and there is nothing in the two •cases cited that would justify a disregard of them. In Dunham v. Haggerty the conveyance was of “ all the coal and other minerals,” under the described lands, “ with the right to construct railroads, underground entries, and all necessary buildings and fixtures to facilitate the mining and removing said coal and other minerals, and to occupy such land as may be necessary for the same, by paying a reasonable rent therefor, as well as for the refuse of said mines.” All the coal could be mined, and “ said coal,” “ all the coal,” could be removed. In Lance, to use of Gummey et al. v. Coal Company, the lease include all the coal on the land, with a reservation to the lessor of all the culm or refuse coal from the mines. As this was all that was reserved by the lessor, he was not allowed to claim more.

We have construed this lease just as it is written. The decree is reversed and the record remitted, with direction that the bill be reinstated and an injunction awarded in accordance with the view expressed in this opinion, the costs below and on this appeal to be paid by the appellee.

Mitchell, C. J., dissents.


text:
    Sage v. Baltimore & Ohio Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Locomotive engineer— Locomotive cleaner — Fellow servant.

    A locomotive engineer is a fellow servant of a locomotive cleaner, and if the latter is injured by the iron door in front of the locomotive falling upon him, and the accident is due to the absence of pins or bolts from the hinges on which the door was intended to swing, he cannot recover from the railroad company for his injuries, if it appears that the engineer in charge of the locomotive had knowledge of the absence of the pins, and had failed to make a written report to the company of such fact, which he was required to do under the rules of the company, and which he had done on former occasions.
    If a master employs competent and skillful persons for the purpose of inspection, and affords them reasonable opportunity and facilities for the work under proper instructions, the master will not ordinarily be liable for the negligent performance of the work by such persons, to a fellow employee, unless the master knows, or by ordinary diligence ought to have known of the defective manner in which the inspection was conducted.
    When the employee’s duty to inspect or repair the apparatus, is incidental to his duty to use the apparatus in the common employment, he is not intrusted with the master’s duty to his fellow servant, and the master is not responsible to his fellow servant for his default.
    Argued May 13, 1907.
    Appeal, No. 66, Jan. T., 1907, by defendant, from judgment of C. P. Fayette Co., June T., 1905, No. 400, on verdict for plaintiff in case of Joseph Sage v. Baltimore & Ohio Railroad Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries.
    Before Reppert, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $2,060. Defendant appealed.

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

      James R. Gray, with him D. W. McDonald and T. H. Hudson, for appellants.
    In order that workmen would be fellow servants within the meaning of the rule that a master is not responsible to a servant for an injury caused by his fellow servant, it is not necessary that the workman causing and the workman sustaining the injury should both be engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purposes. And the rule is the same, although the one injured may be an inferior in grade and subject to the control and direction of the superior whose act caused the injury, providing they were both co-operating to effect the same common object: Lehigh Valley Coal Company v. Jones, 86 Pa. 432; N. Y., L. E. & W. R. R. Co. v. Bell, 112 Pa. 400; McGinley v. Levering, 152 Pa. 366; Keystone Bridge Company v. Newberry, 96 Pa. 246; Spancake v. P. & R. R. R. Co., 148 Pa. 184; Ross v. Walker, 139 Pa. 42.

      H. M. Hertzog, for appellee.
    The case was for the jury: Mensch v. Penna. R. R. Co., 150 Pa. 598; Delaney v. Penn Steel Casting & Machine Co., 30 Pa. Superior Ct. 387.
    October 21, 1907:
   Opinion by

Mr. Justice Stewart,

The plaintiff, employed as a locomotive cleaner, received his injuries while attempting to open the iron door in the front of a locomotive, in order to get access to the smokestack which he had been ordered to clean. The door was supplied with hinges, but when closed was fastened to the boiler of the engine by bolts and clamps. After the plaintiff had removed the last of these, the door, instead of swinging on its hinges, fell outward against him, forcing him from the bumper where he was standing into the ash pit beneath. The injury he thus sustained was due directly to the absence of pins or bolts from the hinges on which the door was intended to swing; had they been in place the door would not have fallen, but would have swung open. The absence of these pins or bolts from the hinges is the negligence charged. If we assume that there was negligence in the case, the question remains, whose was the fault? The evidence adduced by the plaintiff furnishes the only explanation we have of the absence of the pins, and that it is the correct one admits of no doubt. Shortly before the accident they wrere in place, and it is nowhere suggested that they were defective in construction or application, or that they -were outworn. The principal witness for the plaintiff, the engineer who was uninterruptedly in charge of this particular engine up until the last run preceding the accident, testified that they were out most of the time, not because of failure on the part of defendant to supply them when required, or because of accident, but that they were removed from their place by those employed in running the engine for a purpose unknown, so far as the evidence discloses, to the defendant, and therefore unauthorized. When in place in the hinges, they prevented the door from fitting tight against the engine, thus allowing more or less draught through the door, and to this extent reducing the steaming capacity of the engine. To correct this, some of the persons employed about the engine would, when occasion seemed to them to require it, remove the pins and tighten the clamps. The evidence leaves it clear beyond question, that the absence of the pins on this particular occasion was due to such unwarranted interference.

Since the original displacement of the pins was a malfeasance on the part of someone for which the defendant could not be held responsible, it follows that if any liability attach to the defendant for the injury here, it can only be on the ground that it knew, or should have known, by the exercise of proper care, of the absence of the pins, and provided for their replacement. Actual knowledge is not pretended. The accident occurred on the morning of February 27. The engineer who had been in charge of this particular engine made his last run with it two days before, completing his run on the morning of the 25th. He testified that when he then left the engine in the yard, the pins were not in place. Though a later run was made with the same engine, ending on the morning of the 27th, by another engineer, it was not attempted to be shown that any correction had been made with respect to the pins. We have, then, the absence of the pins for two days next preceding the accident. Under ordinary circumstances, whether or not this period of time would be sufficient to charge defendant with constructive notice of the defect, would be a question for the jury to decide from all the evidence; but another fact here intervenes which avoids such inquiry. By the rules and regulations of defendant company it was made a duty of the engineer, daily on the completion of his run, to make written report, in a book kept in the office of the company for that purpose, of the condition of his engine, particularly specifying what, if any, corrections or additions were needed. This witness had on former occasions when the pins were missing, included such fact in his report, and the pins were thereupon renewed; so that there can be no doubt that the engineer, as well as defendant company, understood the requirement in the regulation to cover the absence of pins. In this instance the engineer admittedly failed to report the fact that the pins were out. On the witness stand he appealed from his own uncertain recollection to the book containing his report, and this being produced, showed that he made no report with respect to the absence of the pins. In passing upon the question of the defendant’s negligence in connection with this accident, it is manifest that the promoting and proximate cause is to be found in the failure of the engineer to report the defect in the engine. Accepting this as the act of negligence, if responsibility attach to the defendant therefor, it must be because either the duty the company required of the engineer to report was a non-delegable duty, or, the engineer in connection with such duty was not a fellow servant with the plaintiff. One or the other of these positions must be established in order to justify recovery.

While this duty of inspecting and reporting the condition of the engine was of first importance, it was yet a very simple thing, at least so far as it related to such apparent and obvious defects as the one which caused this accident; and we are concerned with no other, the question being whether with respect to this particular matter, the company had a right to rely upon the vigilance and faithfulness of its engineer and act accordingly. It was a duty requiring no special skill or experience; whether the pins were in place or not could be ascertained by one man as well as another with no better eyesight. Faithfulness and attention were the only qualifications, and certainly no reason can be suggested why this should not be expected of one to whom was intrusted the more exacting and responsible duty of running the engine and to whom its care was intrusted. From any point of view it would seem a very proper requirement, and one likely to promote in a very direct way the general safety" of employees and others, and quite as efficient as any that would be reasonable and practicable. Moreover, the duty thus cast upon the engineer was incidental to his duty in the use of the engine in the common employment. And this circumstance denotes a distinction that differentiates cases such as this, from those which hold under the general rule that the party to whom the employer commits the duty of maintaining the appliances used in a reasonably safe condition, is the latter’s agent and representative. We find this distinction nowhere better defined than in the case of Steamship Company v. Ingebregsten, 57 N. J. L. 400. It is there said : On this topic a rational distinction would seem to be that when the employee’s duty to inspect or repair the apparatus, is incidental to his duty to use the apparatus in the common employment, then he is not intrusted with the master’s duty to his fellow servant, and the master is not responsible to his fellow servant for his fault; but that, if the master has cast a duty of inspection or repair upon an employee who is not engaged in using the apparatus in the common employment with his fellow servant, then that employee in that duty represents the master, and the master is chargeable with his default.” Our own cases are in line with the authority quoted. In P. & R. R. R. Co. v. Hughes, 119 Pa. 301, it is said: “ If, however, the company employ competent and skillful persons for the purpose of inspection, and afford them reasonable opportunities and facilities for the work under proper instructions, the company will not ordinarily be liable for the negligent performance of the work by their employees, to a fellow employee, unless the company knew, or by ordinary diligence ought to have known, of the defective manner in which the inspection was conducted.”

Were the plaintiff and the engineer engaged in the common employment ?f An engineer’s duties involve more than simply applying and regulating the motive power of his engine. The engine is under his care so long as he is in charge of it. He is expected to observe its working, see that it is supplied with, those things necessary to maintain its efficiency, such as fuel and oil, and keep its several parts in place and in good condition so far as he may. Without any prescribed order or regulation it would be a duty incident to his position, to report any derangement or weakening of machinery which he himself could not at once correct. In this case the engineer knew that the pins were out of place ; that they had been removed for a temporary purpose, if not by his own act, with his approval. Clearly his duty required that he replace them or report the fact. His duty so to do was incidental to the common employment. The plaintiff’s duty was auxiliary and supplementary to that of the engineer in the common work of maintaining the efficiency of the engine. His part was to clean the fire box and smokestack, to the same end that it was required of the engineer to see that the other parts of the machinery were kept in good working order. Their work was co-operative, within, the same circle of appointment, and it is impossible to regard them as other than fellow servants.

The defendant’s seventh point asked for binding instructions in favor of the defendant. This point was refused, and its refusal is the subject of the sixth assignment of error. This assignment of error is sustained.

The judgment is reversed.


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    Empire Implement Manufacturing Company v. Hench et al., Appellants.

      Principal and agent — Scope of agency — Evidence.
    Where the fact of agency is not questioned, the agent is a competent witness as to the scope of the agency.
    Where a corporation places a person in charge of its general business in a particular city as manager or general agent, and holds him out by signs and other ways as manager or general agent, the company is liable on a contract made by such agent in the ordinary course of business, as business was conducted by such manager at the particular time and place.

      Evidence — Corporations—Treasurer—Minutes.
    Where a treasurer of a corporation is called as a witness as to circumstances leading up to the execution of a contract by the corporation, and it appears that the contract was not executed by the treasurer, and it also appears that the question as to whether the witness was treasurer, was immaterial on the main issue, it is not necessary to prove by the minutes of the board that he was in fact the treasurer.

      Contract — Rescission—Conditional acceptance.

    Where a person executes a contract with the owner of a patent, and the contract contains no reference to foreign patents, but by a letter with which the contract is inclosed it is stated that the paper was signed conditionally on the procuring of certain foreign patents, and shortly thereafter, and before the patents could be procured, the party executing the contract repudiates it on the ground of lack of authority in the agent who signed it, such party cannot thereafter in a suit on the contract, defend on the sole ground that the foreign patents had not been taken out.
    Argued May 22, 1907.
    Appeal, No. 174, Jan. T., 1907, by defendants, from judgment of C. P. York Co., Jan. T., 1905, No. 56, on verdict for plaintiff in case of Empire Implement Manufacturing Company v. S. Nevin Hench and Walker A. Dromgold, trading as Hench, Dromgold & Co.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit for breach of contract.
    Before Wanner, J.
    At the trial it appeared that the contract in question was signed for the defendants by Philip Jones.

      M. J. Dwyer, the treasurer of the plaintiff, was asked this question:
    “ Q. (By Mr. Glessner.) After you were incorporated, state whether or not you organized and went into business in the state of New York? A. Yes, sir; we did. Q. What office did you hold — do you now hold in the Empire Implement Company ? ”
    Mr. Cochran: Objected to.
    “ Q. (By Mr. Glessner.) What office did you hold in the Empire Implement Company?”
    Mr. Cochran: Objected to. It is not the best evidence of the fact that the witness held any office whatever; the minutes of the company are the best evidence.
    The Court: What difference does it make unless he is the party who executed this contract. I don’t think the question is material.
    Mr. Glessner: Oh, well, it is not; just merely wanted to show his connection with the company.
    The Court: I will overrule the objection, and seal an exception for the defendant. [2]
    “ A. I was treasurer of the company.”
    Philip Jones was asked this question:
    “Q. (Witness shown paper marked No. 3.) Is this the contract between Hench & Dromgold and Philip Jones for the purchase of his business, and his agreement with the same ? Look at the contract and state what it is — or, state whether or not you signed the same and who executed it ? ”
    Mr. Cochran: Objected to.
    The Court: What is the purpose ?
    Mr. Glessner: This for the purpose of showing the employment by Hench & Dromgold Company to act as their general manager in New York for the firm of Hench & Dromgold Company. This, together with the verbal authority from Walker A. Dromgold, one of the members of the firm, and showing the powers of Mr. Jones as manager of the Hench & Dromgold Company — as manager and general agent of the Hench & Dromgold Company. For the purpose of showing the authority for executing the contract of paper No. 2. As one of the steps in sustaining the issue on the part of the plaintiff.

      Mr. Cochran: Objected to; the paper being signed in the presence of an attesting witness; and the only legal way to prove the execution of the paper is by the production of the attesting witness. This wdtness is not competent to testify to the facts proposed to be adduced in this inquiry. Not evidence for the purpose offered, nor the best legal evidence of the facts to be proved.
    The Court: We will allow you to prove the execution of the paper, and it will become a question on the offer of the paper whether—
    Mr. Cochran: Your Honor will give me an exception.
    The Court: Exception for the defendants. Make a specific offer.
    Mr. Glessner: We propose to prove by the witness on the stand that Walker A. Dromgold in his presence, and himself, executed the paper in question, known as No. 3. For the purpose of showing the execution of the paper.
    Mr. Cochran: Objected to as not the proper legal way to prove the execution of this document; it being executed in the presence of attesting witnesses, and those witnesses must be called, or their handwriting proved if they are dead or out of the jurisdiction.
    Mr. Glessner: This paper was produced by the defendants upon call from the plaintiff in this suit. It was not in our possession until a few minutes ago.
    The Court: I will allow the paper to be proven in that way, and give an exception to the defendants.

      “ Q. (By Mr. Glessner.) Look at the signatures and state whether or not you Avere present at the execution of that paper ? A. I signed this; but Ilench & Dromgold’s signature was evidently made in York here because I see Mr. Eichelberger witnesses it. Mr. Corwin witnesses my signature. This is my signature here and that is Mr. Dromgold’s signature.
    Q. State whether or not after the execution of this contract you had any conversation with Walker A. Dromgold concerning your duties as manager of their New York office?”
    Mr. Cochran : Objected to. This paper being in writing cannot be modified or extended by parole, or changed in any manner by parole.
    The Court: The plaintiff cannot alter or change the terms of the written contract, but it has a right to show any additional instruction or powers afterward granted to witness by defendants ; the evidence is therefore admitted and an exception for the defendants. [3].
    “Q. (By Mr. Glessner.) Witness now shown paper No. 2 and asked to look at the signature of Hench, Dromgold & Company, Philip Jones, manager. We now propose to prove the execution of said paper by Hench & Dromgold Company by Philip Jones, their manager, under the authority already proven. For the purpose of showing the execution of said contract.”
    Mr. Cochran: Objected to, that- the authority of the witness to sign the paper not having been properly and legally proved this evidence is incompetent and illegal.
    The Court: Is there a subscribing witness to this ?
    Mr. Cochran : Ho, sir.
    The Court: Then we will admit the question, and note an exception for the defendants. [4]
    “ A. I signed that. Q. (By Mr. Glessner.) In what capacity? A. Manager for Hench, Dromgold & Co., New York. Q. Do you know when you signed that ? A. I don’t exactly know when I signed it. It is dated here April 24.”
    Mr. Mitchel: We offer to prove by the witness on the stand that the plaintiff, in making the contract in document No. 2, relied upon the apparent general authority of Philip Jones, who has signed the same as manager ; and to prove by another witness that the said Philip Jones was the general manager of the defendants, and as such, owing to the general custom of the trade of export of farming implements of the state of New York, had the general authority to bind his principals by contracts to purchase such as the contract in suit. This to sustain the issue on the part of the plaintiffs. The general authority is further evidenced by the heading of the letter paper of the defendants, and by the firm name inscribed upon the front door of their office in New York City. This to sustain the issue as-to the agency of Mr. Jones, on the part of the plaintiff.
    Mr. Cochran: Objected to as irrelevant, immaterial and incompetent, the contract between Mr. Jones and Hench, Dromgold & Co. being in writing, and the plaintiff not having offered to prove the plaintiff inquired about Jones’ authority nor the nature of his contract with Hench, Drorngold & Co. before entering into this agreement to sell grinders to Jones.
    And further, that this is an attempt to introduce what was in the mind of the witness, and not simply facts in regard to the trade, if facts they be.
    Mr. Mitchel: I beg to renew the offer, including in it an offer to prove that the plaintiff company through its agent did inquire as to the extent of Mr. Jones’ authority before entering into the contract.
    The Court: I think the result of these offers is to get this, perhaps, in a very peculiar shape. You start out with the offer to show what were the usual powers of a general manager, for the purpose of justifying the plaintiff, but the offer winds up in an inquiry into the actual authority.
    Mr. Cochran : We further object, there is no offer to prove that the witness on the stand, or Mr. Dillenbeck who made this contract in behalf of the company plaintiff, had any such knowledge of the custom of the trade and rights of managers, if such rights existed.
    The Court: I do not think this offer is a proposition to prove a custom of the trade.
    Mr. Cochran: Yes, but not to bring home knowledge of it to the people who made the contract. I want the further objection to the term general manager as used by the plaintiff in this case. There is no such term either in the letter head, the contract between Hench, Drorngold & Co. and Philip Jones, nor was the word printed upon the sign on the door of the office which the witness visited in New York. The term is, manager, and not general manager.
    The Court: I think the word manager is used in the offer.
    Mr. Mitchel: I admit I made a mistake in using the word, general manager; the word should be manager.
    The Court: Under this offer we will for the present admit evidence of what was contained on the letter heads used by the defendants in correspondence with the plaintiff previous to the execution of the contract in suit. We will also permit the plaintiff to show what was printed on the door of defendants’ New York office at and previous to the date of execution of said contract; and also to show what inquiries, if any, plaintiff made previous to the execution of the contract as to the extent of the authority of Mr. Jones. The question of whether or not the customs of the business can be put in evidence, to indicate his authority, will be passed upon after these other matters are brought before the court, if the offer of that kind is renewed. Exception for the defendants. [5]
    Defendants presented these points:
    1. The plaintiff having knowledge of the fact that Jones was merely the agent of the defendants was bound to inquire of the defendants and ascertain from them whether or not Jones had authority as their agent to bind defendants by this contract before entering into the contract. Answer; This point is refused as written. It is for the jury to find whether or not the plaintiff had knowledge at the time of the making of the contract that Philip Jones was merely a special agent of the defendants with limited powers, or a manager with general powers. If they find from the evidence that he was held out by defendants as the latter, then plaintiff was not bound to make inquiry of his principals as to his power to make this contract if its execution was within the usual power and authority of managers such as he apparently was. [7]
    2. Mr. Jones having written in his letter to the plaintiff of May 3, 1899, paper No. 5, that he would have the contract signed, the plaintiff was warned thereby that Jones had no authority to bind the defendants by the contract in suit, but that said contract would have to be signed by the principals. Answer; This point is refused. The statement in this letter must be considered by the jury in connection with all the other evidence in the case, in determining whether plaintiff had such notice as to put him on inquiry as to the authority of Jones to sign this contract for the firm. [8]
    3. If the jury find from the evidence in the case that Philip Jones had no power or authority to bind his principals, Flench, Prom gold & Co., by the contract upon which this suit is founded, that he entered into said contract without the knowledge of his said principals and that upon said principals learning that said contract had been entered into they immediately repudiated the contract and so notified the plaintiff, the verdict of the jury must be for the defendants. Answer; This point is refused. If defendants had held out Philip Jones as their manager with apparent authority in the ordinary course of the business, to make a contract like the one in suit, and plaintiff, relying on that apparent authority, entered into the contract in suit, with him, then defendants would be bound thereby as his principals, though they had no knowledge of its execution at the time, and repudiated it immediately on being informed of the fact, if the plaintiff had performed, or was ready and willing to perform, its part under the contract. [9]
    4. Mr. Jones’ letter to the plaintiff under date of May 19, 1899, paper No. 7, having stated that the contract in suit was signed conditionally upon the plaintiff having the grinders patented in all the countries in which the parties of the second part were to sell the grinders, to wit: in England, Germany, Erance, Russia and Australia, and the foreign patents admitted in evidence in the case show that letters patent were not secured in Queensland until November 19,1900, but six weeks prior to the date of the expiration of the contract in suit, in Great Britian until January 2, 1901, and in Austria until August 22, 1902, both of which last mentioned dates were after the expiration of the contract, and there being no evidence in the case that any patents whatsoever have been secured by plaintiff up to this time in Germany and Australia, except Queensland, the plaintiff failed to perform the condition upon which the contract was signed by Mr. Jones and therefore, the plaintiff cannot recover in this suit. Answer: This point is refused. [TO ]
    Yerdict and judgment for plaintiff for $5,000. Defendants appealed. .

      Errors assigned were (2-5) rulings on evidence, quoting the bill of exceptions ; (7-10) above instructions, quoting them.

      Richard E. Cochran, with him Smyser Williams, for appellant.
    The plaintiff was bound to inquire of the defendants as to the authority of Philip Jones, their agent, to bind them by this contract: Lance v. Deacon, 39 Legal Int. 178; Wanamaker & Brown v. Carter, 22 Pa. Superior Ct. 625; Baring v. Peirce, 5 W. & S. 548.
    The plaintiff was bound to prove the fact that Dr. Dwyer was its treasurer by the minutes of the board of directors.

      The fact that the plaintiff did not protect its machines by patents in all the countries in which the defendants were to sell the machines until after the date of the expiration of the contract in suit prevents the contract from being binding on the defendants.

      James G. Glessner, with him Mullan, Cobb & Mitchel, for appellees.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

The first contention of the appellants is, that the appellee was bound to inquire of them as to the authority of Philip Jones to bind them by the contract sued upon. He was admittedly their agent. When they purchased from him his office fixtures, export trade and good will, it was agreed between them that the name of the firm was to be “ Hench, Dromgold & Co., New York City, H. Y., T. Edward Dromgold, Secretary and Treasurer; Philip Jones, Salesman or General Manager.” They took possession of the office that had been occupied by Jones, and the sign put on its door was “ Hench, Dromgold & Co., Philip Jones, Manager.” Their letter heads were as follows: Hench, Dromgold & Co., Manufacturers of Agricultural Implements and Machinery for Export. Coffee Exchange Building. Philip Jones, Manager, New York.” The agency of Jones not being questioned, he was a competent witness as to its scope, and he testified that he had express authority to maké the contract. But if he did not have such authority, the jury could fairly have found from the evidence that the defendants, having placed him in charge of their general business at New York as manager or general agent, had held him out to the public as one clothed with authority to make the kind of contract that he made in their name with the appellee; and the jury have found that'he did possess either express or implied authority to bind the appellants, for they were instructed that unless they did so find, there could be no recovery. After telling them that if they should find there was no express authority, the learned trial judge further instructed them : If you should conclude that there was no such express authority from the firm of Hench & Dromgold to their manager, or their agent, Jones, to make this kind of a contract then you will look further and determine the second question, whether or not they had placed Mr. Jones in charge of their general business at New York as manager, or general agent, had so held him out to the world and the business community and public as if he were clothed with authority to make this kind of contracts in the ordinary course of the business as conducted by such managers at that time and place.” Without inquiry into the scope of the authority of Jones to act for the appellants, the appellee, of course, took the risk that he was acting- beyond it when he made the contract, but the jury having found, under proper instructions, that ho had acted within his authority, failure of the appellee to make inquiry of the appellants as to its scope is no ground for reversing the judgment.

M. J. Dwyer, called by the plaintiff, testified, under objection, that he was its treasurer, and the second question raised on this appeal is, whether the appellee was not bound to prove by the minutes of its board of directors that he was the treasurer. Dwyer was not called to prove the execution of the contract by him as treasurer. As a matter of fact, he was no party to its execution. His name does not appear in it. It was executed in the name of the appellee by its superintendent, A. Y. Dillenbeck. That Dwyer was the treasurer of the company was a fact very naturally aud properly developed in his preliminary examination. He was not called as the treasurer of the company, but as a witness, to prove what he knew of the circumstances leading up to the execution of the contract. The question as to whether he was treasurer was immaterial on the main issue, and this was the correct view of the trial judge as expressed in his opinion overruling the motion for a new trial.

Tho third and last question raised by the appellants is: “ Does the fact that the plaintiff did not protect its machines by patents in all the countries in which the defendants were to sell the machines until after the date of the expiration of the contract in suit prevent the contract from being binding on the defendants ? ” Nothing appears on the face of the contract about the appellee’s protection of its patents in foreign countries. Before the contract was signed by Jones and delivered to the appellee, he wrote to it on May 3, 1899 : “ We are now satisfied with, your contract and will have same signed. You must, however, protect your rights by patents in Germany, France, Eussia and every country to which we intend sending your machinery.” Five days later he wrote : “ We have not as yet received word from you that your knife grinder has been patented in Europe and other countries. This is absolutely necessary in order to protect us and we would ask that this be done before signing the contract, otherwise the foreigners will beat us.” On the following day the appellee wrote that its attorney was preparing specifications preparatory to applying for patents in England, France, Germany, Canada and certain districts in Australia. To this Jones replied that it was necessary that the appellee get out letters patent in Eussia, Germany, France, England and Australia ; and, finally, on May 19, 1899, in sending the contract signed to the appellee, he wrote: “We now inclose contract signed, it being signed conditionally on your taking out patents in all the countries that we sell your grinders in.”

By the fourth point submitted by the appellants they asked the court to instruct the jury that there could be no recovery because letters patent had not been secured by the appellee in some.of the foreign countries. This wms refused. The court’s reasons for refusing it appear in the opinion overruling the new trial, and are as follows : “ It was for the jury to find all the facts stated in the point, as well as others relating to the subject of the point which are not stated therein, and the court could not, therefore, assume the correctness of this single fact as a sufficient basis for a binding instruction. The mere fact of Jones stating in a letter to the plaintiff, that the contract had been signed on condition that certain patents should be taken out, does not necessarily prove such to have been the fact, especially in the face of the omission from the written contract itself of the entire subject of the procurement of patents. The court could not assume this statement to be true, or that plaintiff had assented to any such thing, as the basis of a binding instruction to the jury. Besides that, if such had been a condition of the contract, the court would have been obliged to submit to the jury the question whether or not the defendant had waived that condition by accepting a part of the goods contracted for, without objection on this ground, and by soon after repudiating the entire contract on a totally different ground. These matters of fact, and the legal inferences to be drawn therefrom, were all necessarily submitted to the jury, and the court had no power to do otherwise under the facts and circumstances of the case.” A sufficient reason why the point should have been refused is that the contract was not repudiated because tbe patents bad not been protected in the countries in which the machines were to be sold. On July 22, 1899 — barely two months from the time it was delivered by Jones to the appellee — and before the latter could reasonably have been expected to have the patents protected in all of the countries named, the appellants repudiated the contract on the sole ground of want of authority in Jones to make it. No complaint was made of the failure to protect the patents, and, when made on the trial, it could have been regarded as but an unavailing afterthought to avoid the agreement.

No one of the assignments can be sustained, and the judgment is affirmed.


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    Stine v. S. Morgan Smith Company, Appellant.

      Negligence — Master and servant — Contributory negligence — Unsafe appliance — Evidence—Case for jury.

    In an action by a moulder in a foundry against his employer to recover damages for personal injuries, it appeared that the plaintiff at the time of the accident was smoothing with a stick a sand bed, over which there was suspended, about two feet from it, a flask weighing several thousand pounds. In smoothing the bed he put his hand and part of his arm under the flask, and, as he was withdrawing it, the flask fell and crushed it. The flask was suspended by a cable fastened to a crane. The falling of the flask was due to the pulling out of the end of the cable fastened to the crane, and called the dead end. This dead end, after it had pulled out, presented a smooth and straight appearance. It was shown that before the accident its wires stuck straight up above the cone, and were not bent over it to make the fastening more secure, and it appeared from the testimony of an expert, that the proper and safe way of fastening the cable was to bend the ends of the wires over the cone, hammer them down, and fill the cone with material by a process known as babbitting, and that when the dead end was so fastened it was impossible for it to pull out. Plaintiff testified that he was doing the work under instructions and in the manner which was customary, that he had no warning of danger, and that he did not think he was in danger in doing the work in the manner which he adopted. Held, that the question of the defendant’s negligence and plaintiff’s contributory negligence, was for the jury, and that a verdict and judgment for plaintiff should be sustained.
    Under the facts as proved by the plaintiff’s witnesses the rule was recognized that an employer is presumed to have knowledge of structural defects in the machinery or appliances furnished by him to his workmen.
    Argued May 28, 1907.
    Appeal, No. 191, Jan. T., 1907, by defendant, from judgment of C. P. York Co., Oct. T., 1906, No. 48, on verdict for plaintiff in case of Paul Wesley Stine v. S. Morgan Smith Company.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    Before Bittenger, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Yerdict and judgment for plaintiff for $3,000. Defendant appealed.

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

      James St. Clair McCall, for appellant,
    cited as to the question of defendant’s negligence: Wojciechowski v. Spreckles’ Sugar Refining Co., 177 Pa. 57; Stearns v. Spinning Co., 184 Pa. 519; Cunningham v. Bridge Works, 197 Pa. 625; Augerstein v. Jones, 139 Pa. 183; Simpson v. Pittsburg Locomotive Works, 139 Pa. 245; Titus v. Bradford, etc., Railroad Co., 136 Pa. 618; Keenan v. Waters, 181 Pa. 247; Service v. Shoneman, 196 Pa. 63; Anderson v. Hays Mfg. Co., 207 Pa. 106; Allison Mfg. Co. v. McCormick, 118 Pa. 519; Texas & P. R. R. Co. v. Barrett, 166 U. S. 617 (17 Sup. Ct. Repr. 707); Burns v. New York, P. & B. R. R. Co., 20 R. I. 789 (38 Atl. Repr. 926); Reynolds v. Merchants’ Woolen Co., 168 Mass. 501 (47 N. E. Repr. 406); Bradbury v. Kingston Coal Co., 157 Pa. 231; Augerstein v. Jones, 139 Pa. 183.

      Cited as to contributory negligence of plaintiff: Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; O’Keefe v. Thorn, 24 W. N. C. 379; Eisenberg v. Fraim, 215 Pa. 570; R. R. Co. v. McClurg, 56 Pa. 294; Bellows v. Canal & R. R. Co., 157 Pa. 51; Fulford v. R. R. Co., 185 Pa. 329; Fletcher v. Traction Co., 190 Pa. 117; Kinney v. Corbin, 132 Pa. 341; Zurn v. Tetlow, 134 Pa. 213; Mulherrin v. R. R. Co., 81 Pa. 366; Haven v. Pittsburg, etc., Bridge Co., 151 Pa. 620; New York, etc., R. R. Co. v. Lyons, 119 Pa. 324; Betz v. Winter, 195 Pa. 346.

      Henry C. Niles, with him George E. Neff, for appellee,
    cited as to negligence: Raymer v. Standard Steel Works, 216 Pa. 101; McGeehan v. Hughes, 217 Pa. 121.
    Cited as to contributory negligence: Penna. R. R. Co. v. Zink, 126 Pa. 288; Hammer v. Pressed Steel Car Co., 204 Pa. 594; Cougle v. McKee, 151 Pa. 602; Howett v. R. R. Co., 166 Pa. 607; Iseminger v. York Haven Water and Power Co., 206 Pa. 591; Farr v. P. & R. Ry. Co., 24 Pa. Superior Ct. 332.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

The appellee is a moulder and at the time he was injured was in the employ of the appellant. He was smoothing with a stick a sand bed, over which there was suspended, about two feet from it, a flask weighing 4,190 pounds. In smoothing the bed he put his hand and part of his arm under the flask, and, as he was withdrawing his hand, the flask fell, crushing it and causing the injuries for which compensation is sought in this suit. On the trial the court was asked to direct a verdict for the defendant, for the reason that there was no proof of its negligence, and, even if it had been negligent, the plaintiff had voluntarily assumed a known risk and been guilty of contributory negligence. Under all the evidence, the jury might have found for the defendant, but, in view of what was proved by plaintiff and his witnesses, to have directed them to do so would have been palpable error. The learned trial judge could not have affirmed defendant’s sixteenth and seventeenth points or sustained its motion for judgment non obstante veredicto.

The flask containing the iron and other material for the casting was suspended over the sand bed by a cable fastened to a crane. It is clear from the evidence that the falling of the flask was due to the pulling out of the dead end of the cable — the end fastened to the crane — and so called because “ it is fastened in practically at a position where it is not called upon to do any work.” The dead end of this cable, after it had pulled out, presented a smooth and straight appearance, indicating that it had slipped out of the cone at the crane. It was shown by a witness, who saw the dead end in place before the accident, that its wires stuck straight up above the cone’ and were not bent over it to make the fastening more secure, and, by the testimony of an expert, it appeared that the proper and safe way of fastening the cable was to bend the ends of the wires over the cone, hammer them down and fill the cone with material by a process known as babbitting, and that when the dead end was so fastened it was impossible for it to pull out. This was substantial testimony of the defendant’s negligence in the construction and maintenance of its machine, used by its employee in raising and lowering the flask under which he was smoothing the sand, and for the consequences of such negligence an employer is liable, for he is presumed to have knowledge of structural defects in the machinery or appliances furnished by him to his workmen: Finnerty v. Burnham, 205 Pa. 305. Shipley, an expert called by the defendant, admitted on his cross-examination that with the dead end of a cable properly fastened it is impossible to pull it out of the socket, as the cable would first break under too great a strain.

On the question of the contributory negligence of the appellee the jury fairly found against the appellant. He had a right to believe that his employer had properly fastened the end of the cable to the crane, and he testifies that, under such a belief, he put his hand under the weight; that in leveling the sand bed under the suspended flask he was doing the work in accordance with the instructions in the shop ; that he was doing it in the manner in which he had been shown that it should be done; that he was doing it in the manner which was customary, not only at that crane, by himself and others, but at other cranes in the foundry; that he did not think he was in danger in doing so; that he had never been warned that the work as he was doing it was dangerous, and that he had never heard anybody else warned as to its being dangerous. In some of these statements he is corroborated by others. From this epitome of his testimony the question of his contributory negligence was as clearly for the jury as was that of the negligence of the defendant.

In no one of the nineteen assignments complaining of the admission and rejection of evidence, of answers to points, and of portions of the charge, has any error been pointed out. The two questions of fact, the negligence of the appellant and the contributory negligence of the appellee, went to the jury under proper rulings and instructions, and the judgment is affirmed.


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    Craighead, Appellant, v. Swartz.

      Principal and surety — Insolvency of principal — Indemnifying surety— Set-off.

    When a principal has become insolvent, the surety may retain the moneys oí the principal or the amount of his indebtedness to the principal as a fund for his indemnity.
    As between principal and surety, courts of equity always lend their aid for the protection of the latter. As soon as the surety’s obligation to pay becomes absolute, he is entitled in equity to require the principal debtor to exonerate him, and he may file a bill to compel exoneration, although the creditor has not demanded payment from him.
    In general, in order to support a set-off there must be cross demands between the same parties and in the same rights, such as would sustain mutual actions against each other, yet wherever there is the practicability of avoiding circuity of action and needless costs, with safety and convenience to all parties, or where there is a special equity to bo sub-served, and no equity of third parties to be injured, a set-off will be allowed upon equitable principles, though the case does not come within the language of the statute.
    Where the payee of promissory notes under seal assigns them at a time when he is insolvent, and the notes are overdue, the maker of the notes may set off against them, in a suit by the assignee, a liability which had matured against the maker on notes indorsed by him as surety for the payee of the notes in suit.

      Argued May 23, 1907.
    Appeal, No. 64, Jan. T., 1907, by plaintiff, from judgment of C. P. Cumberland Co., May T., 1905, No. 471, for defendants non obstante veredicto in case of Charles C. Craighead, surviving partner of the firm of R. R. Craighead & Bro., now for use of John A. Craighead, by W. P. Stuart, committee of said John A. Craighead, now for use of Margaret E. Craighead, Executrix of John A. Craighead, deceased, v. G. Wilson Swartz and R. W. Woods, Administrators d. b. n. c. t. a. of John W. Craighead, deceased.
    Before Mitchell, C. J., Fell, Brown, Potter and Elkin, JJ.
    Affirmed.
    Assumpsit on promissory notes.
    The opinion of the Supreme Court states the case.
    Verdict for plaintiff for $6,025.31, subject to question of law reserved.
    The court subsequently entered judgment for defendants non obstante veredicto.

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

      E. M. Biddle, Jr., with him Arthur L. Reeser and F. E. Beltzhoover, for appellant.
    A set-off to be allowed must be a debt between the same parties and in the same right: Union Nat. Bank v. Iron Co., 3 Sadler, 58; Longafelt v. Bartsher, 3 P. & W. 492.
    A note does not cease to be negotiable on reaching maturity and passes to a purchaser exactly as it was before the purchase, free from set-offs growing out of distinct transactions: Ludwig v. Dearborn, 8 Pa. Dist. Rep. 69; Hughes v. Large, 2 Pa. 103; Downey v. Tharp, 63 Pa. 322; Long v. Rhawn, 75 Pa. 128; Young v. Shriner, 80 Pa. 463.
    No one but a party to the suit can claim a set-off: Cramond v. Bank, 1 Binn. 64; Longafelt v. Bartsher, 3 P. & W. 492; Irwin v. Potter, 3 Watts, 271; Scott v. Fritz, 51 Pa. 418; Bentz v. Bentz, 95 Pa. 216; Mfg. Co. v. Haymaker, 138 Pa. 541; Loew v. Austin, 140 Pa. 41; Shaw v. Fleming, 143 Pa. 104; Bache v. Philips, 155 Pa. 103.

      S. B. Sadler, for appellees.
    A surety whose liability has been fixed may setoff the amount of such liability against the principal in an action by him or in an action by his assignee: Miller v. Kreiter, 76 Pa. 78; Baily’s Est., 156 Pa. 634; Downey v. Tharp, 63 Pa. 322; Long v. Rhawn, 75 Pa. 128; Young v. Shriner, 80 Pa. 463; Ludwig v. Dearborn, 8 Pa. Dist. Rep. 69; Hughes v. Large, 2 Pa. 103; Peale v. Addicks, 174 Pa. 543; Newbold v. Boon, 6 Pa. Superior Ct. 511.
    A creditor who takes a chose in action as collateral security for a pre-existing indebtedness is not a purchaser for value: Ashton’s Appeal, 73 Pa. 153 ; Raken v. Henry, 16 Pa. Dist. Rep. 207; Kountz v. Kirkpatrick, 72 Pa. 376.

      R. W. Woods and G. Wilson Swartz, for administrators.
    October 21, 1907:
   Opinion by

Mr. Justice Brown,

The facts in this case are not in dispute. They appear in the special verdict returned by agreement of the parties. John W. Craighead, appellees’ decedent, made and delivered three promissory notes to R. R. Craighead & Bro. The first, dated April 18,1892, was for $1,445.96, payable one year after date; the second, dated April 15, 1897, was for $1,217.07, payable one day after date; the third, dated July 1, 1902, was for $1,018.51, payable one day after date. Each of these notes was under seal. On February 5, 1904, R. R. Craighead & Bro. transferred these notes to John A. Craighead as collateral security for the payment of two judgment notes held by him against them amounting to $5,009.38. At the time R. R. Craighead & Bro. transferred the notes of J. W. Craig-head to John A. Craighead they were insolvent, and were so at the time of the trial below. Before they transferred the notes John W. Craighead had indorsed two of their notes in the Farmers’ Trust Company of Carlisle, one, for $5,000, dated February 2,1903, payable ninety days after date, and the other, for $2,500, dated April 20, 1903, payable ninety days after date. These two notes were protested for nonpayment, the first on May 4, 1903, and the second on July 20, 1903. On March 23, 1905, the Farmers’ Trust Company brought suit against the estate of John W. Craighead on the notes indorsed by him, and judgment was recovered in September, 1906. In April, 1905, suit was brought by the committee of John A. Craighead against the estate of John W. Craighead on the three notes he had given to R. R. Craighead & Bro., and which they had transferred to John A. Craighead. The estate of John W. Craighead is not sufficient to pay in full all the claims against it. The verdict of the jury, by consent of the defendants, was for $6,025.31, subject to reserved questions, the second being whether the liability incurred by John W. Craighead to the Farmers’ Trust Company for the firm of R. R. Craighead & Bro. could be set off against the notes given by him to R. R. Craighead & Bro. and assigned by them to John A. Craighead.

The agreement upon which the special verdict was rendered and the legal questions reserved, was signed not only by the plaintiff and defendants, but by the Farmers’ Trust Company. Whether that company is to be regarded as having been permitted by the agreement to intervene in the suit for the purpose of defending is immaterial. The one question, the right of the administrators of John W. Craighead, deceased, to make the defense that his liability as indorser for R. R. Craig-head & Bro. must prevail against the claim of John A. Craig-head’s estate, is to be determined as if the Farmers’ Trust Company was not a party to the stipulation for the special verdict and the reservation of the legal questions. Under a fair construction of this stipulation the court below very properly considered the right of the defendants to a set-off as against the legal plaintiff through whom the use plaintiff claimed, without regard to any intervention by the Farmers’ Trust Company. Judgment was entered for the defendants on the reserved question, and from it we have this appeal.

If R. R. Craighead & Bro. on February 5, 1905, being at that time insolvent, had brought suit against John W. Craig-head on his three notes held by them, he could have interposed as a defense, his liability as indorser on their protested paper held by the Farmers’ Trust Company. When a principal has become insolvent, the surety may retain the moneys of the principal or the amount of his indebtedness to the principal as a fund for his indemnity: 27 Am. & Eng. Enc. of Law (2d ed.), 478. “A principal who is insolvent cannot collect a debt which the surety owes him without his indemnifying the surety:” 1 Brandt on Suretyship and Guaranty (2d ed.), sec. 227. See also Abbey v. Van Campen, 1 Freem. Ch. (Miss.) 273; Mattingly v. Sutton, 19 W. Va. 19; Walker v. Dicks, 80 N. C. 263; Merwin v. Austin, 58 Conn. 22. “ The surety of an insolvent debtor cannot be compelled to pay a debt he owes his principal until he is released of his responsibility of suretyship, and may retain what he owes as a counterclaim against such surety:” Scott v. Timberlake, 83 N. C. 382. In our own state, in Ross v. McKinny, 2 Rawle, 227, it was held that in an action to recover a legacy, the executor might demand a conditional verdict that would permit him to retain the legacy until he had been indemnified against a demand for which the testator was surety for the legatee. In Beaver v. Beaver, 23 Pa. 167, in an action by an administrator of an insolvent estate, it was held that the defendant was entitled to set off the amount paid on a note of decedent on which he was surety, although the payment was not made until after suit brought, on the ground that the equity of set-off originated when the obligation to pay became absolute. It was there said: “ As between principal and surety, courts of equity always lend their aid for the protection of the latter. As soon as the surety’s obligation to pay becomes absolute, he is entitled in equity to require the principal debtor to exonerate him, and he may file a bill to compel an exoneration, although the creditor has not demanded payment from him: Theobald’s Principal & Surety, 226; Nisbet v. Smith, 2 Bro. C. C. 579; Lee v. Rook, Mosely, 318; Story’s Equity, sec. 327.” This was followed by Thompson v. McClelland, 29 Pa. 475. The defendant there, as surety of the legal plaintiff, who was insolvent, was allowed to set off the amount paid on a judgment recovered against him as surety, although such payment was made after suit had been brought against him. In Miller & Reist v. Kreiter, to the use of Bomberger, 76 Pa. 78, Reist, the defendant below, indorsed a note made by Kreiter. Before his indorsement of this note he had given Kreiter a nonnegotiable note. This note Kreiter assigned to Bomberger, who brought suit upon it on January 25, 1872. On April 6, 1872, judgment was recovered against Reist as indorser of Kreiter, and it was held that on August 30, 1873, on the trial of the suit brought by Bomberger, Reist could set off the amount of the judgment recovered against him as Kreiter’s indorser. This court said : “ As soon as the note was protested, June 10, 1871, and Reist’s liability as indorser became fixed and absolute, he was entitled to call upon the maker to exonerate him from such liability, and that even before demand was made upon him for payment: Beaver v. Beaver, 28 Pa. 167. His right of set-off, as against any claim Kreiter had against him, may be said to have originated from this period.”

The set-off allowed by the court in this case was an equitable one, and even if it may not have been technically within our defalcation act, it was a good defense in our courts, administering equity under common-law proceedings. As to this, it is said in Hibert v. Lang, 165 Pa. 439: “ In general in order to support a set-off there must be cross demands between the same parties and in the same rights, such as would sustain mutual actions against each other, yet wherever there is the practicability of avoiding circuity of action and needless costs, with safety and convenience to all parties (Gibson, C. J., in Tustin v. Cameron, 5 Whart. 379), or where there is a special equity to be subserved, and no equity of third parties to be injured, a set-off will be allowed upon equitable principles, though the case does not come within the language of the statute.”

What John W. Craighead or his personal representatives could have set up as a defense if the suit on the notes had been brought by R. R. Craighead & Bro., clearly could be set up in a suit by the assignee of these notes, for they were taken by John A. Craighead subject to any defense the maker might have had against the original holders at the time they were assigned. They were all under seal and over due. The stipulation of the parties, as properly construed by the court, having been that the question of the liability of John W. Craighead’s estate to the plaintiff, in view of his liability to the Banners’ Trust Company as indorser on the notes of R. R. Craighead & Bro., should be raised and passed upon, without regard to the pleadings, the only possible conclusion, in the light of all the authorities, was reached by the learned trial judge. The assignments of error are overruled and the judgment is affirmed.