text:
    Lyons v. Importers’ and Traders’ National Bank, Appellant. Importers’ and Traders’ National Bank, Appellant, v. Lyons.

      Equity — -Bill of peace — Vexatious litigation — Attachment execution — Injunction — Restraining litigation in Federal court.

    A, a bank, obtained judgment against B and issued an attachment in execution on it against C, as garnishee. C answered, admitting moneys in his hands, but alleging that they were claimed by D. D subsequently filed a bill in equity against C to compel an accounting to her, and a decree was made awarding her the money in C’s hands, which A had tried to reach by its attachment, for the reason that C was not indebted to B. During the pendency of the proceedings in equity between D and C, A issued a second attachment against C, as garnishee, to reach the same fund that it had attempted to reach by the first. Subsequently A issued a third attachment for the same purpose, naming C again as garnishee. A also filed a bill in equity against B, C and D, for the purpose of trying to get from C the money which it had attempted to reach by its attachments. It allowed its bill to be dismissed for want of prosecution. On an issue framed in the third attachment there was a verdict for the garnishee. Later on, A issued a fourth and a fifth attachment for the same purpose, again naming 0 as garnishee. It suffered voluntary nonsuits on its first two attachments, and a verdict was rendered in favor of the garnishee in the fourth and fifth. After this, A issued a sixth attachment for the same purpose,'again naming C as garnishee, and brought suit in the United States courts against C and -D to recover the moneys that had been judicially determined to be due from C to D. Held, that the litigation of A was vexatious, that the process of the court had been abused by it, and that D might maintain a bill of peace to restrain it from proceeding on its sixth attachment, and from issuing any other, writ to interfere with her collection of the money admitted by C to be due to her; but that she was not entitled to an injunction to restrain the bank from proceeding in the federal court, as she could safely rely upon that court for protection against the abuse of its process.
    Argued Jan. 12, 1906.
    Appeals, Nos. 196 and 197, Jan. T., 1905, by Importers’ and Traders’ National Bank from decree of C. P. No. 1, Phila. Co., March T., 1899, No. 760, on bill in equity in cases of Elizabeth J. Lyons v. Samuel Simpson and the Importers’ and Traders’ National Bank of New York and the Importers’ and Traders’ National Bank of New York v. Elizabeth J. Lyons.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Decree modified.
    Bill of peace.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was the decree of the court.

      James W. M. Newlin, for appellant.
    The court below had no jurisdiction of the bill. The decree made by the injunction of December 19, 1904, is void and, in so far as it attempts to enjoin proceedings in the circuit court of the United States, involves a question that can only be determined in that court.

      George L. Crawford, of Crawford & Loughlin, for appellee.
    A bill of peace is the proper remedy: Adams Equity, 199; Story’s Equity Jurisprudence, sec. 853; Conover v. Mayor, etc., of N. Y., 25 Barbour, 513; Mead v. Merritt, 2 Paige Ch. 402; Lord Tredegar v. Windus, L. R. 19 Eq. 607; French, Trustee, v. Hay, 89 U. S. 250; Dietzsch v. Huidekoper, 103 U. S. 494; Texas, etc., Ry. Co. v. Kuteman, 13 U. S. App. 99; Rodgers v. Pitt, 96 Fed. Repr. 668-70; Fallon v. Remington, 10 W. N. C. 119; Thompson’s App., 107 Pa. 559; Kreamer v. Fleming, 200 Pa. 414.
    March 19, 1906:
   Opinion by

Mr. Justice Brown,

The litigation to which the appellee has been subjected by this appellant has been most vexatious, and she ought no longer to be harrassed by it. If it is not stopped in the court below, justice will be denied her, and wrong and injustice will be her lot where her rights have been judicially determined and where they ought to be protected. No other conclusion is possible from an inspection of the- records brought up by these appeals.

On June 19, 1899, The Importers’ and Traders’ National Bank of New York obtained judgment in the court below against J. Harry Lyons, a son of the appellee, for $57,375.77, and on the same day issued upon it an attachment ad lev. deb., in which Samuel Simpson, individually and trading as Samuel Simpson and Company, was named as garnishee. In his answers Simpson admitted that he had moneys in his hands which he believed belonged to the defendant, but further answered, as a reason why judgment should not be entered against him, that Elizabeth J. Lyons had formally notified him that the moneys and property attached in his hands as belonging to J. Harry Lyons were hers. We reversed the judgment entered against him on his answers, for the reason that, in view of what they contained, he might have been exposed to the danger of being compelled to pay Mrs. Lyons after having paid the attaching ci’editor: Importers’ and Traders’ National Bank v. Lyons, 195 Pa. 479.

While the appeal in the foregoing case was pending, Elizabeth J. Lyons, on October 26,1899, filed a bill in equity in the court below against J. Harry Lyons and Samuel Simpson, in which she alleged that she had formed a partnership with Simpson, of which the said J. Harry Lyons had been employed as agent and manager. In that proceeding there was a decree for an accounting to the complainant, which we affirmed with the following modification: “ The decree for an account is affirmed, but is modified so that there shall be no final decree for payment of any balance found due by appellant until the attachments now pending against him as garnishee shall have been finally determined, and in case the plaintiff, after due notice, shall neglect or refuse to appear in such attachment proceedings and defend her title, and there shall be a recovery against the appellant, then with leave to the appellant to apply to the court to open the decree and relieve him against any double liability in such manner as equity may require : ” Lyons v. Lyons, 199 Pa. 302. The master appointed reported that Elizabeth J. Lyons was entitled to a decree against Samuel Simpson for $35,024.69, and such a decree was subsequently made. On appeal from this we reduced the amount due by Simpson to $28,486.63, and, to protect him as garnishee, said: “ When the case was here before, upon an appeal from the interlocutory decree, it was ordered that there should be no final decree for the payment of the balánce found due by Simpson until the attachment then pending against him as garnishee of J. Harry Lyons had been finally determined. We understand those proceedings have now been disposed of, but that during the accounting before the master, another attachment was served upon the defendant Simpson as garnishee of J. Harry Lyons. This attachment is still undetermined. Payment under the decree of the court below should, therefore, not be required until the attachment now pending is determined or until the defendant Simpson is properly protected against any liability thereunder by a satisfactory bond of indemnity: ” Lyons v. Lyons, 207 Pa. 7.

On December 6, 1899, during the pendency of the first appeal, the bank, the present appellant, issued a second attachment against Simpson as garnishee, on its judgment against Lyons, and a third on June 13, 1900, after our opinion had been filed in 195 Pa. These two attachments were issued to reach the same fund that the >bank had attempted to attach by the first attachment against the same garnishee, and the vexation by the appellant began when the second was issued. An issue was framed in the third attachment, and on November 7, 1900, it was tried, resulting in a verdict in favor of the garnishee. A motion for a new trial having been refused and judgment entered on the verdict, the bank appealed to this court on May 7, 1901, but on January 6, 1902, the appeal was non prossed. On March 18, 1902, the bank issued a fourth attachment against Simpson, and, on the same day of the same month in the following year, a fifth. These were for the same purpose as the other three. On March 17, 1902, it suffered voluntary nonsuits in the first two attachments, issued respectively on June 19 and December 6, 1899.

In the opinion on the first appeal — 195 Pa. 479 — we held that if Lyons was a partner of Simpson, his interest could not be reached by the bank by an attachment before there was an account settled between him and the garnishee. The remedy of the bank was under the Act of April 8, 1873, P. L. 65, by selling out on a special fi. fa. the interest of Lyons in the partnership, if he had any, and the purchaser at such a sale would acquire a right to compel a settlement of the partnership accounts by a proceeding in equity. Acting upon this, the bank, on January 10, 1901, issued a writ of fi. fa., and the interest of J. Harry Lyons in the partnership of Simpson and Company was sold to it. On February 16, 1901, as the purchaser of this interest, it filed a bill in equity against J. Harry Lyons, Elizabeth J. Lyons, the present appellee, The Real Estate, Title Insurance and Trust Company, and Samuel Simpson, trading as Samuel Simpson and Company, claiming what it-alleged was a partnership share of J. Harry Lyons in the said partnership of Samuel Simpson and Company. This is what it had attempted to reach by its attachments. To this proceeding the appellant made the present appellee a party, in which every question it now raises could have been raised. It allowed its bill to be dismissed for want of prosecution.

Issues were framed on the fourth and fifth attachments, which had been issued in March, 1902, and March, 1903, and on January 14, 1904, they were called for trial, when a verdict was directed for the garnishee on each of them. Upon a discharge of the rule for a new trial an appeal was taken to this court, and the judgment below was affirmed. In an opinion written by our Brother Mestrezat he said : “ The judgment in the third attachment case determined that there were no money or effects, subject to the attachment, in the hands of' the garnishees on June 13, 1900, the date of “the service of the writ, and that none had come into their hands subsequent to that date and prior to November 7, 1900, the date of the trial. This was the matter in controversy between the parties, and hence the judgment determined the cause on its merits. This judgment became absolute and final when the appellant bank, the attaching creditor, failed to prosecute the appeal subsequently taken by it to this court. If the trial court erred in any of its rulings or in directing a verdict for the garnishees, the plaintiff, who was the appellant there and is the appellant here, had the opportunity to have the error corrected by having the judgment reversed in this court. The judgment in that case, therefore, must be regarded as conclusive between the parties as to the merits of the cause of action involved in the case. Here, as we have observed, we have the same cause of action and the same parties, the only additional averment bj' the appellant being the allegation of collusion and fraud in procuring the former judgment, but which had no evidence on the trial to support it. We are of opinion that the question involved in this issue is the same as that determined by the judgment on the third attachment andis therefore res judicata:” Importers’ and Traders’ National Bank v. Lyons, 209 Pa. 136.

But the appellee was to have no peace. On April 4, 1904, before the last appeal before us was disposed of, the bank issued a sixth attachment on its judgment against Samuel Simpson, trading as Samuel Simpson and Company, for the same purpose as the other five. From the time the first attachment was issued it is not pretended that anything subsequently came into the hands of the garnishee, and the second, third, fourth, fifth and sixth attachments stand on the records of the court below as its abused process. In addition to the last attachment, on April 25, 1904, the bank brought an action in the circuit court of the United States for the eastern district of Pennsylvania against Samuel Simpson and Elizabeth J. Lyons to recover the moneys which it had been judicially determined belonged to her. This is an undenied allegation in the amended bill, and is practically admitted by counsel for appellant in his history of the case, where it is stated that after its bill to establish a partnership between Lyons and Simpson had been dismissed it instituted the suit in the United States court.

For relief from the intolerable situation disclosed by the records in this case, and for protection from continued vexation by the appellant, the appellee filed her bill of peace and the amendment to it. “ The obvious design of such a bill is to procure repose from perpetual litigation, and, therefore, it is justly called a bill of peace. The general doctrine of public policy which in some form or other may be found in the jurisprudence of every civilized country, is, that an end ought to be put to litigation, and above all to further litigation; ‘ interest reipublicee ut sit finis litium.’ If suits maybe perpetually brought to litigate the same questions between the same parties or their privies as often as either should choose, it is obvious that remedial justice would become a mockery; for the ter:nination of one suit would only become the signal for the institution of a new one, and the expense might be ruinous to all the parties. The obvious ground of the jurisdiction of courts of equity in cases of this sort is to suppress useless litigation and to prevent a multiplicity of suits: ” Story’s Equity, section 858.

Money judicially awarded to the appellee in 1903 is still tied up in the hands of .Simpson by the action of the appellant. In his answer to the original bill he says: “ I am prevented from the payment of the fund to the complainant, and am thus subjected unnecessarily and vexatiously to the payment of interest and to unnecessary expense and trouble.” The relief asked for in the amended bill is : 1. “ That the defendant, The Importers and Traders’ National Bank of New York, be restrained and enjoined preliminarily until final decree and perpetually thereafter, from further proceeding upon its said sixth attachment execution of April 4, 1904, and from issuing any further attachment executions upon its said judgment against J. Harry Lyons against any of the funds in Samuel Simpson’s hands as garnishee, arising from the said partnership carried on in the name of Samuel Simpson & Co., either against Samuel Simpson or Elizabeth J. Lyons as garnishee, or otherwise.” 2. “ That the defendant, The Importers’ and Traders’ National Bank of New York, be restrained and enjoined, preliminarily until final decree and perpetually thereafter, from further proceeding in said suit in the Circuit Court of the United States for the Eastern District of Pennsylvania, to April Sessions, 1904, No. 15, against Samuel Simpson and Elizabeth J. Lyons, or either of them, and from any proceeding against either of them for recovery of any of the said funds of Samuel Simpson & Co., in his hands.” In his answer to the amended bill Simpson asks that the relief prayed for be granted.

The specific relief asked for in the amended bill was granted. The order granting the appellee the relief asked for in the first prayer was so manifestty proper that we affirm it without comment. The records are its vindication. If we felt that we could with propriety affirm that portion of the decree restraining proceedings in the federal court, we would unhesitatingly do so, but, the action having been commenced in that court at the time the amended bill was filed, comity and public policy forbid that our injunction should extend to it: Mead v. Merritt, 2 Paige Ch. 402. By the appropriate plea in the United States court the appellee can safely rely for protection by it from the abuse of its process directed against her or the man having her money in his hands, ready and willing to pay her.

We need not discuss the assignments of error in detail. There is no merit in any of them, except in those relating to the injunction as directed against the proceedings in the- United States court. They are sustained and all the others overruled. One of those overruled complains that the demurrer filed has not been disposed of by the court below. This assignment is in the face of the record, which shows that the demurrer was not filed until October 24, 1904, six days after an order had been made for a decree pro confesso against the appellant. The decree of the court below is modified by reversing so much of it as restrains and enjoins the appellant from further proceeding in its suit in the circuit court of the United States for the eastern district of Pennsylvania, to April sessions, 1904, No. 15, and, as so modified, it is affirmed, the costs below and on both appeals, which are dismissed, to be paid by the appellant.


source: Caselaw Access Project

author: Mr. Justice Fell,

license: Public Domain

text:
    Hayman v. Philadelphia and Reading Railway Company, Appellant.

      Negligence — Railroads—Master and servant — Fellow servant — Act of April 4, 1868, P. L. 58.
    Under the Act of April 4, 1868, P. L. 58, there are two classes of cases. The first class includes those cases where the place of accident was for general purposes the premises of the railroad company. In such cases the person injured is within the act if he is “lawfuffy engaged or employed on or about” them and is not a passenger. The other class is where the accident occurs in a place which is not exclusively and for general purposes, but only within a limited and statutory sense, the premises of the raüroad company. In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is a business connected with the railroad in the sense that it is ordinarily the duty of railroad employees, then while the party is engaged at it the statute treats him as a quasi-employee, and puts his right upon the same basis. If, however, the work has no relation to railroad work as such and is connected with the railroad only by irrelevant and immaterial circumstances of locality the case is not within the statute at all.
    In an action against a railroad company it appeared that plaintiff, a carpenter by trade, was employed in a locomotive works. A few minutes prior to the accident he was engaged with other workmen in loading an engine on cars belonging to the defendant. His work was to secure in place the parts of the engine by means of wooden blocks, so that they would not be disturbed in transit. The car stood on a track within the locomotive works. While the plaintiff was stiff employed, the cars were drawn down by an engine of the defendant along an incline to defendant’s main tracks. Plaintiff did not know that the cars were to be moved before the loading was finished. He, however, continued at his work both while they were moving and for twenty minutes after they were on the main track. He then went back to the works to get a piece of wood, and while walking up the incline was struck by an engine. Held, that the plaintiff was within section 1 of the Act of April 4, 1868, P. L. 58.
    Mestrezat, Potter, and Elkin, JJ.^ dissent.
    Argued Jan. 17, 1906.
    Appeal, No. 273, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Go., June T., 1904, No. 631, on verdict for plaintiff in case of William Hay-man v. The Philadelphia and Reading Railway Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Audenried, J.

      The facts are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $2,000. Defendant appealed.

      Error assigned among others was in not entering judgment for defendant non obstante veredicto.

      Gavin W. Hart, for appellant.
    Plaintiff was doing railroad work: Kirby v. R. R. Co., 76 Pa. 506; Ricard v. R. R. Co., 89 Pa. 193; Cummings v. R. R. Co., 92 Pa. 82; R. R. Co. v. Colvin, 118 Pa. 230; Stone v. R. R. Co., 132 Pa. 206; Fleming v. R. R. Co., 134 Pa. 477; Miller v. R. R. Co., 154 Pa. 473; Weaver v. Ry. Co., 202 Pa. 620; Peplinski v. R. R. Co., 203 Pa. 52; Laporte v. R. R. Co., 209 Pa. 469.

      Henry W. Scarborough, for appellee.
    The act of 1868 does not apply: Kirby v. R. R. Co., 76 Pa. 506; Richar v. R. R. Co., 89 Pa. 193.
    Plaintiff was not doing railroad work: Spisak v. R. R. Co., 152 Pa. 281; Stoltenberg v. R. R. Co., 165 Pa. 377; Ortlip v. Traction Co., 198 Pa. 586; Richter v. R. R. Co., 104 Pa. 511; Christman v. R. R. Co., 141 Pa. 604.
    March 19, 1906:
   Opinion by

Mr. Justice Fell,

The controlling question in this case is whether the facts developed at the trial bring the plaintiff within section 1 of the Act of April 4, 1868, P. L. 58. The section is as follows: “ When any person shall sustain personal injury or loss of life while lawfully engaged or employed on or about the roads, works, depots or premises of a railroad company, or on or about any train or car therein or thereon, of which company said person is not an employee, the right of action and recovery in all such cases against the company shall be such as would exist if such person were an employee, provided that this section shall not appty to passengers.”

The plaintiff was employed as a carpenter at the Baldwin Locomotive Works and on the day of the accident he was engaged with other workmen in loading an engine on two gondola cars, the property of the defendant, which stood on a track in the Baldwin works. His work was to secure in place the parts of the engine by means of wooden blocks so that they would not be disturbed by the motion of the car. Before this work was finished the cars were drawn by an engine of the defendant from the Baldwin works down an incline to the main tracks and left standing there. The plaintiff did not know the-cars were to be moved before the loading was finished. He continued at his work as they were taken down the incline and for twenty minutes after they were on the defendant’s roadbed, when he went back to the Baldwin works to get a piece of wood. While walking up the incline he was struck by an engine.

The learned trial judge in an opinion overruling the defendant’s motion for judgment non obstante veredicto very clearly states the point on which the case turns and says: “ If the fact that Hayman was brought involuntarily to the point from which he was departing when the accident befell him were not in the case, we would have no doubt that he would stand in the first of the two classes of those to whom the act of 1868 applies; provided that the place of the accident is clearly and for general purposes part of ‘ the road, works, depots or premises of the railroad company.’” The incline, whether on the property of the defendant or of the Baldwin works, was a part of the premises of the defendant within the meaning of the act of 1868 if at the time it was being used for railroad business, and the plaintiff must be considered as a quasi-employee if at the time of the accident he was engaged in doing work ordinarily done by railroad employees. In Mulherrin v. Delaware, etc., Railroad Co., 81 Pa. 366, it was held that a railroad track which the defendant had a right to use in common with the company that owned it was a part of the premises of the defendant company. It was said in the opinion : “ The fact that the defendants were only entitled to track rights to the road is not material. This is not a question of the extent of their title. It was the road of the defendants for the purpose of moving their trains, which is sufficient to bring the case within the act of 1868.” In Cummings v. Pittsburg, etc., Railroad Co., 92 Pa. 82, the plaintiff was employed by a coal dealer and was engaged in unloading cars standing on a siding constructed on his land. In Stone v. Penna. Railroad Co., 132 Pa. 206, the yard foreman of a refining company was injured while separating a train of cars upon a siding in the yard of a refinery. In Weaver v. Phila. & Reading Ry. Co., 202 Pa. 620, an employee of an iron company was injured while unloading a car on a siding owned by the iron company, and in Laporte v. Pittsburg, etc., Railroad Co., 209 Pa. 469, an employee of a coke company was shifting cars on its tracks by gravity and was injured by reason of a switch having been left open. In all of these cases the plaintiffs weré held to be within the meaning of the act of 1868.

The distinction that divides the cases into two classes was pointed out by the present chief justice in Spisak v. B. & O. Railroad Co., 152 Pa. 281. The first class includes those cases where the place of accident was for general purposes the premises of the railroad company. In such cases the person injured is within the act if he is “lawfully engaged or employed on or about ” them and is not a passenger. “ The other class is where the accident occurs in a place which is not exclusively and for general purposes, but only within a limited and statutory sense, the premises of the railroad company. In this class the nature of the employment at which the party injured was engaged at the time, becomes material. If it is a business connected with the railroad in the sense that it is ordinarily the duty of railroad employees, then while the party is engaged at it the statute treats him as a quasi-employee, and puts his right upon the same basis. If, however, the work has no relation to railroad work as such and is connected with the railroad only by irrelevant and immaterial circumstances of locality the case is not within the statute at all.”

The plaintiff in this case was employed in loading an engine on the defendant’s cars. Securing the pieces of the engine in place was as much a part of this work as was placing them on the cars. It was an essential part of the loading. In all cases where the question has arisen, the loading and unloading of cars has been considered as railroad work, and had the plaintiff been injured while so engaged in the Baldwin works he would have been within the act.

Does the fact that the plaintiff while at work was carried from the premises of his employer to the roadbed of the railroad company alter the case ? In Kirby v. Penna. Railroad Co., 76 Pa. 506, the first case that arose under the act and in which its constitutionality was affirmed, it was said that the person to be affected by the act must be in or about the road voluntarily to perform some act or business connected with the road or its works and being there he knowingly assumes a relation regulated by the law and thus places himself under the operation of the law that governs the relation. He is not bound to assume the relation and when he does he acts with his eyes open.” The plaintiff voluntarily assumed the relation in loading the car in the Baldwin works and he voluntarily continued it by remaining at the work after the car had been removed. He was as free to leave the car after it had stopped as he would have been to decline going with it if he had been consulted. If he had refused to continue the risk and had been injured when returning from the place where he had been carried against his will, a different question would be presented. We see no ground for a valid distinction between the case of a plaintiff who voluntarily goes to a place of danger and one who voluntarily remains in such a place when there is nothing to prevent his leaving it.

The judgment is reversed and judgment is now entered for the defendant on the question reserved, non obstante veredicto.

Mestrezat, Potter and Elkin, JJ., dissent.


text:
    Mayer v. Walker, Appellant.

      Will — Devise—Heirs—Remainder.
    Testator devised a dwelling-house to his wife “as long as she remains my widow, in case she marries or death it will go to my son, or his lawful heirs. If he should die without any lawful heirs then it shall go to my 'brother’s children.” The son died without issue leaving a will, and subsequently the widow of testator died. Held,, that the children of testator’s brother took the estate.
    Argued Jan. 18, 1906.
    Appeal, No. 300, Jan. T., 1905, by defendant, from judgment of C. P. No. 5, Phila. Go., Dec. T., 1904, No. 1,639, on case stated in suit of Benjamin Mayer et al. v. Leon Walker et al.
    Before Mitchell, C. J., Fell, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Case stated to determine title to real estate.
    The facts appear by the opinion of the Supreme Court.

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

      John G. Johnson, for appellant.
    Unaided and unobstructed by any so-called canons of construction, the will discloses a clear intent to give to Leon Walker a fee simple only in the event of his surviving his mother, the life tenant: Harris v. Davis, 1 Collyer, 416; Findlay v. Riddle, 3 Binney, 139; Braden v. Cannon, 24 Pa. 168; Cochran v. Cochran, 127 Pa. 486; Corrin v. Elliott, 23 Pa. Superior Ct. 449; Vilsack’s Estate, 207 Pa. 611.
    No so-called canons of construction prevent the carrying out of the clear testamentary intent: Mull v. Mull, 81 Pa. 393; McGill’s App., 61 Pa. 46; King v. King, 1 W. & S. 205; Patterson v. Hawthorn, 12 S. & R. 112; Muhlenberg’s App., 103 Pa. 587.
    Where, in Pennsylvania, there is a devise in remainder, upon the falling in of a precedent life estate, with contingent remainder over in case of the death of the first remainder-man without heirs, or without issue, no indefinite failure of heirs or issue is meant, but only a failure at the expiration of the precedent life estate: Caldwell v. Skilton, 13 Pa. 152; McAlpin’s Est., 211 Pa. 26; Hackney v. Tracy, 137 Pa. 53; Graham v. Abbott, 208 Pa. 68; Mickley’s App., 92 Pa. 514.

      Joseph H. Taulane, with him Henry S. Drinker, Jr., James F. Hagen, H. Gordon McCouch and Samuel Dickson, for appellees.
    The phrase “Leon J. Walker, or his lawful heirs,” standing alone, would have given him a fee and must be read “ Leon J. Walker and his lawful heirs: ” Harris v. Davis, 1 Coll. 416; Patterson v. Hawthorn, 12 S. & R. 112; King v. King, 1 W. & S. 205; McGill’s App., 61 Pa. 46; Mull v. Mull, 81 Pa. 393; Muhlenberg’s App., 103 Pa. 587.
    The effect of the gift over “ if he should die, without lawful heirs ” before the act of 1855, would be to give Leon an estate tail with a vested remainder to the children of William, the failure of issue being an indefinite and not a definite failure: Harris v. Davis, 1 Coll. 416; Findlay v. Riddle, 3 Binn. 139; Covert v. Robinson, 46 Pa. 274; Hackney v. Tracy, 137 Pa. 53; Graham v. Abbott, 208 Pa. 68.
    The estate tail to Leon was enlarged into a fee by the Act of April 27, 1855, P. L. 368, the remainder over to the children of William being thereby destroyed: Seybert v. Hibbert, 5 Pa. Superior Ct. 537.
    March 19, 1906:
   Opinion by

Mr. Justice Fell,

The general scheme of the testator’s will was this : He gave to his wife his household furniture as long as she remained unmarried, one-tliird of his personal estate absolutely, and one-third of the income of his real estate for life. He left $9,000, in trust, the income to be paid to his wife as long as she remained unmarried and upon her marriage or death to be paid to his son Leon for life, and upon his decease the principal was to go to his children. In case his son died without leaving any child or issue of a deceased child, one-third of the principal was to go to charities, and two-thirds to the children of the testator’s brothers. The remainder of his estate was left to his son absolutely. The will was prepared by skillful counsel. The testator made two codicils, evidently without the aid of counsel. The first contains this provision: “ My wife Selina shall occupy the dwelling house No. 1711 Franklin street in the city of Philadelphia as long as she remains my widow, in case she marry or death it goes to my son Leon. I also want him to have a home in the premises, in case my son Leon die this property I give to the children of my brother William.” The second codicil written a year later is as follows: “I want my wife Selina Walker to reside in dwelling house No. 1711 Franklin street as long as remains my widow, in case she many or death, it will go to my son Leon J. Walker or his lawful heirs, if he should die without any lawful heirs it shall go to my brother William Walker’s children.”

Leon J. Walker died without descendants in the lifetime of his mother, leaving a will by which he devised his estate to strangers. Upon the death of his mother his devisees brought an action of ejectment against the children of William Walker. It was held that the devise by the second codicil was to Leon J. Walker and the heirs of his body and that by virtue of the Act of April 27, 1855, P. L. 368, he took a vested remainder in fee simple and that the remainder to William Walker’s children being limited on a fee was void. Judgment was entered on the case stated in favor of the plaintiffs.

The conclusion reached by the court is based on two propositions : (1) In the phrase “Leon J. Walker or his lawful heirs ” the word “ or ” is to be construed “ and ” ; (2) by “ lawful heirs ” the testator meant heirs of the body and the devise to Leon and the heirs of his body and, if he should die without lawful heirs, to remainder-men over, is a devise in fee tail enlarged by the act of 1855 into a fee simple. The word “ heirs ” in the phrase “ If he should die without lawful heirs ” must be construed to mean heirs of the body, since there was a gift over to collaterals who would have been lawful heirs. The second proposition may therefore be conceded. But why should “ or ” be read “ and ” in the phrase “ or his lawful heirs ” ? Certainly not in order, to give effect to the intention of the testator, which is perfectly clear, and no technical rule of construction requires it. No one can doubt that the testator intended that the children of his brother should take if, when .the prior estate ended by the death or remarriage of his wife, neither his son nor any “heir,” in the sense of descendant, of the son should be in existence. By the first codicil the son was given a fee simple in remainder, if then alive, upon the termination of the prior estate, and in the case of his death before the termination of this prior estate the house was given to the children of the brother William. The second codicil supplied an omission in the first to make any provisions for the heirs of the body of the son in case he did not survive his mother, and provides for the disposition of the house in the same manner that a portion of the trust fund of $9,000 is provided for in the body of the will. The plain intention of the testator, indicated by what he said in the second codicil and by the whole will, was to limit the estate not to his son and his heirs, but to his son or his heirs. The purpose was to substitute the “ heirs,” meaning children or issue, of the first taker, if the son should be dead leaving children or issue; if there should then he neither son nor issue of the son the estate was to go to the children of the testator’s brother William. This construction carries out the manifest intention of the codicil without rejecting or altering a single word, while the construction contended for by the appellees gives no effect to words which provide for a limitation over in default of lineal heirs, and excludes the possibility of giving effect to them in any contingency that might arise by making the limitation over on an indefinite failure of issue.

A devise to a man or his heirs, without more, has in many eases been construed as a devise to him and his heirs where such construction was necessary to give effect to a manifest intention or to supply a legal succession in the event of death. Of these cases Patterson v. Hawthorn, 12 S. & R. 112, and Muhlenberg’s Appeal, 103 Pa. 587, are examples. In this case there is a substitutionary devise to the children of the testator’s brother in the contingency of the death of the testator’s son without heirs of the body during the continuance of the particular estate, which would be defeated by construing “or” as “and,” The rule in Shelley’s case has no application, for the gift to the son is without limit as to duration, and under the act of 1833 words of inheritance are not required to pass the fee.

The phrase used by the testator, “ if he should die without any lawful heirs,” is the equivalent because of the context of “ in case, he should die without issue.” Where an absolute' estate is followed by these words, it is a settled principle of interpretation that they will be understood as referring to death without issue in the lifetime of the testator, if the gift is immediate ; or during the continuance of the life estate if it is not: and if the donee survives the testator or the continuance of the intervening estate, his interest becomes absolute and indefeasible. Conversely, if he does not so survive, the limitation over takes effect as a valid executory bequest or devise : McAlpin’s Estate, 211 Pa. 26. We conclude, therefore, that the estate to the son would have been indefeasible if he had survived his mother, irrespective of the act of 1855. Since he. did not survive her and left no issue, the limitation to the children of the testator’s brother became effective.

The judgment is reversed and judgment is now entered on the case stated for the defendants.


author: Mr. Justice Stewart,

text:
    Beaumont’s Estate.

      Will — Deed—Trust and trustees — Clause of revocation.

    Where a person executes a paper which he designates as a deed, a.nd by which he assigns to a trust company certain interest bearing bonds, to collect the interest thereon and apply it to the payment of premiums on a policy of insurance on his life, and after his death to collect the proceeds of the policy and pay them and the accumulations from interest on bonds to certain persons designated, and the paper concludes with a power of revocation of the trust, the writing constitutes a will not passing any present interest in the bonds, and upon testator’s death all the securities and cash will be awarded to his legal representative under a later will.
    Argued Jan. 15, 1906.
    Appeal, No. 308, Jan. T., 1905, by Olive B. Pratt et al., from decree of C. P. No. 5, Phila. Co., March T., 1904, No. 4,582, dismissing exceptions to report of auditor in Estate of Lucious S. Beaumont.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Pottee, Elkin and Stewaet, JJ.
    Affirmed.
    Exceptions to report of John M. Scott, Esq., auditor.
    The facts are stated in the opinion of the Supreme Court.

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

      William Findlay Brown, for appellants.
    The instrument in question is a deed of trust: Brown v. Mattocks, 103 Pa. 16; Dreisbach v. Serfass, 126 Pa. 32; Cable v. Cable, 146 Pa. 451; Book v. Book, 15 W. N. C. 150; Wilson v. Anderson, 186 Pa. 531; Fellows’s App., 93 Pa. 470; Greenfield’s Est., 14 Pa. 489; Rife’s App., 110 Pa. 232; Rynd v. Baker, 193 Pa. 486; Potter v. Fidelity Ins., etc., Co., 199 Pa. 360; Kraft v. Neuffer, 202 Pa. 558; Dickerson’s App., 115 Pa. 198; Stone v. Hackett, 78 Mass. 227.
    We submit that the evidence of the letters of the settlor in this case (of necessity the best evidence) clearly brings this instrument within the rules of the following cases, so as to require the reformation of this instrument by reading into it the intended disposition in favor of his mother, brothers and sisters, of the $7,000 of railroad bonds, as well as all the policy of life insurance and accretions of income: Wallace v. Baker, 1 Binn. 610; Christ v. Diffenbach, 1 S. & R. 464; Bollinger v. Eckert, 16 S. & R. 422; Rearich v. Swinehart, 11 Pa. 233; Chalfant v. Williams, 35 Pa. 213; Gump’s App., 65 Pa. 476; Kostenbader v. Peters, 80 Pa. 438; Lippincott v. Whitman, 83 Pa. 244; Merkel’s App., 89 Pa. 340; Kirby’s App., 109 Pa. 41; Hyndman v. Hogsett, 111 Pa. 643; Jenkins v. Davis, 141 Pa. 266; Schotte v. Meredith, 192 Pa. 159; Knight’s Est., 20 Pa. Superior Ct. 413.

      James Gay Gordon, with him Lev McQuistion, for appellee.
    —The paper in question is a will and not a deed: Pritchett’s Est., 28 W. N. C. 167; Turner v. Scott, 51 Pa. 126; Frederick’s App., 52 Pa. 338; Frew v. Clarke, 80 Pa. 170; Rick’s App., 105 Pa. 528; Bierman v. Lebanon Valley College, 20 Pa. Superior Ct. 133; Wallize v. Wallize, 55 Pa. 242.
    March 19, 1906:
   Opinion by

Mr. Justice Stewart,

Lucious S. Beaumont assigned and transferred to The Provident Life & Trust Company of Philadelphia certain securities in trust, to be held and employed for uses defined and declared in an instrument of writing, sealed and executed by him September 26,1893. Beaumont died March 29,1903. The Provident Life & Trust Company shortly thereafter settled an account of its trust in the common pleas court of Philadelphia, showing a balance in its hands of $15,993.08. Opposing claimants of the fund appeared; certain parties named in the instrument creating and defining the trust claimed by and through it as beneficiaries thereunder; the widow of Beaumont, who was not named in the instrument, but who had become administratrix c. t. a. claimed it as legal representative of the dead man’s estate. The court awarded it to the latter. The appeal is from the decree of award, and it raises but a single question: is the instrument which gives rise to the dispute a will ? If it is, the fund' was properly awarded to the legal representative of the estate, executing a probated later will; if a deed which upon its delivery to the trustee vested in the opposing claimants a beneficial interest in the property transferred, the fund should be awarded them.

The answer to the question must be derived from what appears within the four corners of the paper as written. No difficulty results in the present case from the fact that the field of inquiry is thus restricted, for the reason that the instrument is so intelligible, both as to purpose and scheme, that it furnishes within itself a convincing and conclusive answer to the question. It is contended that it is not complete, in that it does not contain all that was intended; but, that what it does contain was intended, and that the intentions so far as expressed are clearly intelligible, is not disputed.

The paper was executed by Lucious S. Beaumont; it speaks in the first person ; it transfers to The Provident Life & Trust Company of Philadelphia, successors and assigns, seven certain bonds of The Pittsburg & Western Railroad Company, of the par value of $1,000 each, upon the following uses and trusts :

“ First: — To collect and receive the income, issues and profits thereof (the bonds above mentioned), and after retaining thereout the lawful costs and charges of the management of this trust, then to apply the net income, if the same shall be sufficient, and not otherwise, unto the payments of the premiums which may from time to time fall due on my policy of life insurance numbered 13,439; dated sixth month, 3rd, 1878, issued on my life by the said The Provident Life & Trust Company of Philadelphia, in the sum of Ten Thousand Dollars ($10,000), and the balance of said net income, if any, to hold, retain and invest in good and sufficient securities (from time to time when said balance, if any, may amount to a sufficient sum to invest) upon the uses and trusts by this deed declared, that is to say.

“ Second: — At my death to collect and receive the proceeds of said Life Insurance Policy if the same shall be at that time in full force, and the same to pay over together with the accumulations as aforesaid, and the investments representing the same, if any, in equal shares unto my mother, brothers and sisters, the share or shares of either or any of said beneficiaries who may be deceased at the time of 'my death to go to and be equally divided amongst the survivors.”

The remaining provision in the instrument is as follows: “ Third: — I hereby reserve the right to revoke and annul this deed and the uses and trusts herein by an instrument of revocation to be executed by me and lodged with said trustees, whereupon the said trustees on my written receipt and discharge shall reassign and deliver unto me the said policy of life insurance if in full force, and such securities and funds as they may then hold under this deed and the trusts therein.”

Having regard to what is here expressed, and that alone, it is not open to dispute that the only purpose Beaumont had in connection with the transfer of the seven bonds to The Provident Life & Trust Company, was to provide and set apart a fund that would yield income safely adequate to discharge the premiums on the policy of insurance, which that company had issued to him, as they would fall due. It is admitted that the instrument neither directly nor by implication makes any final disposition of the bonds after they should have served this one purpose. Either the death of the insured or the maturity of the policy in his lifetime, would have wholly discharged the trust so far as it concerned them ; the first would have brought them into his estate ; the second would have made them his own absolute^. No present beneficial interest therein passed with the execution and delivery of the paper to anyone; the bonds remained Beaumont’s ; the accumulations therein were payable only at his death; the insurance was intended for the benefit of the mother, brothers and sisters, to the exclusion of the wife; but they were to get it only upon the death of Beaumont; no uses or trusts were declared with respect to it, except in the event that it reached the hands of the trustee, and under the terms of the gift it could only pass to the trustee in case the policy did not mature in Beaumont’s lifetime. Then too, there is the additional fact that the instrument asserts its revocability. Here is quite enough without considering the circumstances that attest very clearly both the testamentary purpose and testamentary disposition of property. The paper is essentially a will, in that it is a declaration of the maker’s intentions with respect to his property, which he wills to be performed after his death; it is this and nothing more. Being in law and in fact a will, its revocability was a necessary incident. The fact that the right of revocation is in terms reserved, may afford some indication that the maker thought it a deed and not a will, and that he did so think, is altogether likely from the fact that in the instrument he speaks of it as a deed ; but this circumstance is without significance. We hare repeatedly said that in such cases, the inquiry is not what the maker called the instrument, or. what it was in his'conception, but-what it is in contemplation of the law and- in effect. Everything can be' affirmed of the paper under consideration, that was said of that discussed in Rick’s Appeal, 105 Pa. 528; in effect it is a mere power of attorney; it was made for the grantor’s own personal ' convenience; the' trustee therein' was' to account to the grantor for all that might be done under the powers granted; it passed no beneficial interest during the lifetime of the grantor! In Turner v. Scott, 51 Pa. 126; Frederick’s Appeal, 52 Pa. 338, and in Rick’s Appeal, 105 Pa. 528, may be found abundant authority for all we have said in connection with the present case, and further citation is unnecéssary. Having from an inspection and analysis of the paper determined it to be a will, the evidence offered to show an omis-r sion by mistake cannot be considered. The paper as written must speak for itself: Wallize v. Wallize, 55 Pa. 242.

The assignments are overruled-and the decree affirmed.


text:
    Beatty’s Estate.

      Trusts and trustees — Negligence—Fraud—Surcharge—Will.
    Where a will appoints two trustees, and directs that the estate shall be invested in a particular manner, .and one .of the trustees takes the estate and embezzles it, the other trustee' will be- liable for the loss, if it appears •that he made ho effort to' invest, the estate in the manner directed by the will, and merely relied upon the statement of the other trustee that it had been So invested.
    Argued Jan. 19, 1906.
    Appeal, No. 215, Jan. T., 1905, by Robert Stewart, Trustee, from decree of O. C. Phila. Co., Jan. T., 1884, No. 87, dismissing exceptions to adjudication in Estate of James Beatty, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Excéptions to adjudication.
    The facts are stated in the opinion of the Supreme Court.

      Frrórs assigned were in dismissing exceptions to adjudication.

      Francis Chapman, of Chapman & Chapman, and John G. Johnson, with them S. Spencer Chapman, for appellant.
    A trustee is not an insurer of his cotrustee’s fidelity.
    The general rule is that one trustee shall not be responsible for the acts or defaults of his cotrustee: Fesmire’s Est., 134 Pa. 67; Fesmire v. Shannon, 143 Pa. 201; Birely’s Est., 7 Pa. Dist. Rep. 395; Myer v. Myer, 187 Pa. 247.
    It was certainly not negligence on Stewart’s part to allow McCartney to have the money solely in his hand at the inception of the trust. He, McCartney, had been the active executor and was the one most conversant with the estate. He was the trusted friend of the decedent, selected by him to manage his estate. The rule as to the liability of executors is more exacting than as to trustees: Sterrett’s App., 2 P. & W. 419; Stell’s App., 10 Pa. 149; Jones’s App., 8 W. & S. 142.
    It was the duty of Stewart when he discovered the condition of the estate to at once do what he could to protect it. It is conceded that he acted promptly and frankly and at once advised the cestui que trust of what he had done. His account was only of the property received by him from McCartney for the security of the estate and is unquestioned. That the estate is entitled to the benefit of that property, we concede. That it is entitled to more, we deny: Hatch’s App., 8 Sadler’s Supreme Ct. Cases 593.

      Henry J. Scott, for appellees.
    The trustee was properly surcharged: Weigand’s App., 28 Pa. 471; Breneman v. Frank, 28 Pa. 475; Hilles’ Est., 13 Phila. 402; Fesmire’s Est., 134 Pa. 67; Myers v. Myers, 187 Pa. 247; Lafferty’s Est., 184 Pa. 502; Stong’s Est., 160 Pa. 13; Weldy’s App., 102 Pa. 454; Irvine’s Est., 203 Pa. 602; Stell’s App., 10 Pa. 149.
    March 19, 1906:
   Opinion by

Mr. Justice Stewart,

It is only repeating a familiar rule to say that where there are cotrustees, each is liable individually no further than assets have come to his hands, except for his own fraud or negligence. It is the exception that involves the appellant in this case. He accounted for everything that he himself handled, he was guilty of no fraud, but he was adjudged by the court below to have negligently omitted a duty in connection with his trust, which, had it been performed, would have avoided the loss which resulted to the estate from the fraudulent conduct of his cotrustee. It is necessary to state the facts that we may see exactly what negligence he was guilty of, if any. Appellant and one James McCartney were executors of the will of James Beatty, deceased, and trustees as well. Upon 'adjudication of the executor’s account in the orphans’ court of Philadelphia, February 18,1884, there was awarded to them as trustees the sum of $14,009.46. The will directed that it should be invested in good real estate securities, in the funded debt of the United States, the state of Pennsylvania or the city of Philadelphia. At the time of the award the entire fund was in the hands of McCartney, who, as it appears, was at that period a man of excellent business standing, in good repute financially and otherwise. None of the money ever reached the hands of the appellant; and none of it was invested in accordance with the directions contained in the will; though McCartney represented to appellant that he had invested it all' in first mortgages held in the name of the estate. Several years after the award appellant removed from Philadelphia, and was absent some six or seven years. During this period, he occasionly returned, and when he did so, he made inquiry of his co-trustee in regard to the trust, and always received the same reply, that the funds were invested in first mortgages. Appellant rested securely in the assurance he received from McCartney, who during all the time was regularly paying over to the parties entitled to the income its full equivalent, that the. fund was intact and safely invested, until 1898 when for some reason his suspicions were aroused. Through the aid of counsel by himself employed, he then discovered for the first time that he had been deceived by McCartney, that the latter had not invested the trust funds, but had appropriated them to his own. use, with the result that they were lost to the estate. He.at once required McCartney to assign all of his individual property, consisting of some twelve or thirteen improved lots in the city of Philadelphia, all rather heavily encumbered, to a trustee to protect so far as it might reach the estate from loss. The rents and income from these several properties thereafter derived.passed into'the hands of the appellant,'who,;in-settling' .a'Séparate.aceount óf hid trust, stating-therein- that- the- several properties assigned by .'McCartney were assets of' the trus.t estate,- debited' himsélf; only with the rents received'therefrom. McCartney at the same time filed his separate account, in which he'charged himself with nothing but the in teres ton-the principal sum of the- trust fund, crediting himself- with the amounts he had paid out. The learned auditing judge . very properly declined to consider in this connection the encumbered properties conveyed in trust .by McCartney as assets of the trust estate their b'eihg settled.! He surcharged both accountants with the principal sum that had been awarded them as trustees. Exceptions to this adjudication having been dismissed, this appeal followed.

; The case as thus presented, is clear of all difficulty. As soon as the final award was made to the trust fund, it became the duty of the trustees to invest the money in the way pointed out by the will; Making the investment called for the exercise of discretion' and judgment,' and therefore it was to be the act of; both. ' Especially would this be so were the investment to be made as appellant subsequently believed on the representation of McCartney that it had been made, in real estate securities. Indeed it 'was the only matter in connection with the management of the trust that seems' to have called for the-exercise of discretion and judgment, since 'with the money once invested in proper securities, nothing remained to be done but to collect and pay over-the interest to the parties entitled.; but it is a fair conjecture at least, that it was this matter of investment that led to the appointment of two trustees rather than one. Except as both participated in the selection of; the real estate securities, it would be in the power of either, through incompetence or willful misconduct, to inflict loss on the estate by the acceptance of securities worthless or inadequate. Manifestly not only the first, but the most important duty óf - the trustees acting jointly was to decide upon the character of the investment to be made, and make it. Its importance, if not understood at the time, was clearly revealed in the. light of what happened subsequently. The question then that arises is not that asked upon the argument'of the case — whether appellant was negligent in trusting-to.-the representations of .-McCartney, that he had invested the funds in real estate securities, without requiring him to produce and exhibit thein. The mischief had then been done; and it is this circumstance that distinguishes the present case from that in Jones’s Appeal, 8 W. & S. 142, a case much relied upon as an excusing authority here, but which has no applicability. The real question reaches further back, and'has regard to what occurred"when the fund passed into the control of the trustees, and it is this — was the failure of appellant to make or require a prompt investment of the fund in accordance with the terms of the will a negligent omission of duty ? This question admits of but one answer; the duty was unmistakable, it was not performed, and no sufficient excuse is given for its omission. The failure of appellant so to act was negligence, and in view of all the circumstances of the ease, it must be held to have been supine negligence. The question remains — is the loss to the estate through McCartney’s misconduct fairly traceable to this neglect of duty on the part of appellant'? ‘ It is that which made it possible. Had the investment been made in any of the securities named, certainly the loss could not have happened in the way it did. That it would still have been possible for the cotrustee to have despoiled the estate in some other way, is of no consequence in the present inquiry. We know how he did despoil it, and that the opportunity for so doing came ' to him in consequence of appellant’s failure to invest the funds as he was in duty bound. The case admits of but one conclusion, and it is properly expressed in the decree surcharging appellants with the loss they occasioned.

The appeal is dismissed at cost of appellant and the- decree is affirmed.


text:
    Snyder v. Bougher, Appellant.
    ' IAguor law — Sale—Licensed premises — Sale, of license — Conditional sale— Resafe.
    While a retail liquor license may not be "sold by a trustee in bankruptcy, yet the furniture and fixtures of a licensed saloon together with the unexpired lease thereof may be sold by the trustee on condition that the license shall be transferred to the purchaser by the license court. If the purchaser abandons his purchase without any attempt to secure a transfer of the license, he will be liable for a loss on a resale.
    If in an action to recover such loss it appears that the facts relating to the second sale, were not admitted, and the evidence relied on to show that the two sales were made on the same terms, was in large part oral testimony, the case must be submitted to the jury, and it is error for the court to direct the jury to return a verdict for the plaintiff for the difference between the amounts of the two sales.
    Argued Jan. 22, 1905.
    Appeal, No. 344, Jan. T., 1905, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1902, No. 1,113, on verdict for plaintiff in ease of Richard C. Snyder, Trustee of the Estate-of James Henry, Bankrupt, v. Martin W. Bougher.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.,
    Reversed.
    Assumpsit to recover for a loss on a resale by a trustee in bankruptcy. Before Carr, J.
    At the trial the court charged in part as follows:
    [Gentlemen of the jury, you will find in this case a verdict for the plaintiff for $4,689.12.] [1]
    [ I am requested to say to you on behalf of the plaintiff that: “ The measure of damages upon the resale of this property at auction is the difference between the amount bid at the first sale and the amount bid at the third sale, if such sale was made after due notice to defendant upon the same terms and if the sale was made in a fair and reasonable way after proper advertisement. To which should be added the expenses of such sale, less the amount of down-money.” I affirm that point. I do not think there is any evidence here on the part of the defendants to meet the plaintiff’s case.] [2]
    [I have been asked by the defendant to charge you on certain points and those points I-refuse.] [3]
    The points submitted by the defendant which the trial judge refused were as follows :
    1. The learned judge is requested to charge the jury as follows : . Your verdict in this case must be in- favor of the defendant. [4]

      2. Neither the United States court nor jits referee in bankruptcy had power to direct a sale of the retail liquor license of James Henry, and the verdict must be therefore in favor of the defendant. [5]
    8. The trustee of the bankrupt estate of James Henry, a bankrupt, had no power to sell the retail liquor license issued to said James Henry and the verdict must therefore be in favor of the defendant. [6]
    6. The plaintiff having attempted to make a second sale of the liquor license and having had confirmation by the court withheld, thus postponing the actual sale until the license had nearly run out, cannot now hold the defendant liable for the result of the third sale. [7]
    8. In order to hold Bougher on his bid at the first sale, it is necessary that the terms of the subsequent sale should be identical with those of the first sale, or at least not varied to an extent making an offer less attractive to bidders. In this case, when Bougher bid, the license had three months to run. The sale at which the license was sold, was in April, and the license had a much shorter period to run.
    The terms of sale having been thus varied the verdict must be for the defendant. [8]
    11. The learned trial judge is requested further to charge, in the event of his refusing to direct for the defendant, that merely nominal damages can be recovered by the plaintiff, since the ability of the seller to secure a transfer of the license was problematical at best, and dependent on the exercise of judicial discretion by the court of quarter sessions. [9]
    12. The learned judge is requested further to charge, in the event of his refusing to direct for the defendant and if it shall be held that the trustee in bankruptcy had power to sell the license and fixtures together with the coercive power of the court to compel the bankrupt to transfer, that if the jury believe the bankrupt gave notice of an intention to remonstrate against the transfer to Bougher on the ground of his unfitness to receive the license, this was sufficient warrant for a recision of the bid by Bougher and the verdict must be for the defendant. [10]
    Verdict and judgment for plaintiff for $4,689.12. Defendant appealed.

      ■ Errors assigned were instructions and refusal of points as ábove.' '

      William W. Porter, with him Harold Moon, for appellant.
    The district court of the United States has no power to direct a sale or the trustee in bankruptcy power to sell, a retail liquor license at auction: Buck’s Est. 185 Pa. 57; Cronin v. Sharp, 16 Pa. Superior Ct. 76; Ulrich’s License, 6 Pa. Dist Rep. 408; Breen’s License, 2 Pa. Dist. Rep. 652.
    If the plaintiff had a right to sell the retail liquor license of the'bankrupt to'the defendant, it is contended that on the breach of the contract to buy by the defendant, the plaintiff could not recover more than nominal damages for the bread): Mead’s License, 161 Pa. 375; Gross’s License, 161 Pa. 344; Ostertag’s Petition, 144 Pa. 426; Raudenbusch’s Petition, 120 Pa. 328; Brightly v. McAleer, 3 Pa. Superior Ct. 442; Cronin v. Sharp, 16 Pa. Superior Ct. 76; Kelminski’s License, 164 Pa. 231; Schlaudecker v. Marshall, 72 Pa. 200; Commonwealth v. Kerns, 2 Pa. Superior Ct. 59.
    If damages are recoverable the jury must determine their amount: Brewing Co. v. Booth, 162 Pa. 100; Immendorf’s App., 190 Pa. 590.
    In order to hold the defendant as bidder at the first sale it was necessary that the term's of the first and subsequent sale should be identical, or at least unvaried to an extent making an offer less attractive to bidders: Weast v. Derrick, 100 Pa. 509; Banes v. Gordon, 9 Pa. 426; Tindle’s Appeal, 77 Pa. 201; Freeman v. Husband, 77 Pa. 389.

      Henry N. Wessel and John G. Johnson, with them John Dolman, for appellee.
    Appellant argues that “ The law is well settled that á license to sell liquor is a personal privilege. It is not assignable by the holder, and at his death it does not go to his representatives. It is not an asset of his estate,” This statement, made in 1898, was peculiarly applicable to the facts of the case in Buck’s Estate, 185 Pa. 57, but it has since been generally held that it is not, strictly speaking, a personal privilege, but has some of the attributes of property, as is shown by the acts of assembly and the decisions of this court, permitting transfers to landlords of the place licensed upon default of the licensee, and holding personal representatives of deceased persons to liability for value of the lease, (including value of license): Brady’s Estate, 21 Pa. Superior Ct. 397; Mueller’s Estate, 190 Pa. 601; Buck’s Estate, 185 Pa. 57; Grimm’s Estate, 181 Pa. 233; Blumenthal’s Appeal, 125 Pa. 412.
    The United States district court for the eastern district- of Pennsylvania, early in the administration of the bankruptcy act, was called upon (In re Becker, 3 Am. B. R. 413, 1899) to decide this question and held that a liquor license was something of value which the bankrupt could assign, and therefore upon an adjudication in bankruptcy the trustee became vested by operation of law with all the rights which the bankrupt had, to wit: the right to assign, subject, of course, to the exercise of the supervisory power of the court of quarter sessions as to the person to whom transfer should be made. This not only follows the direct line of authority in the United States courts, but is also in line with the instinct of common honesty which impels the application of an insolvent’s assets, no matter by what name they may be called, to the payment of his liabilities. ' To the same effect is: In re Fisher, 3 Am. B. R. 406; In re Fisher, 4 Am. B. R. 646; In re Brodbine, 2 Am. B. R. 53; Sparhawk v. Yerkes, 142 U. S. 1 (12 Sup. Ct. Repr. 104); In re Page, 4 Am. B. R. 467; In re Page, 5 Am. B. R. 707.
    It is a well-settled point of law that if a bidder at an auction sale refuses to take what was knocked down to him he is liable for the expense and also the loss caused by a resale: Coffman v. Hampton, 2 W. & S. 377; Kerr v. Shrader, 1 W. N. C. 33; Girard v. Taggart, 5 S. & R. 19; Bowser v. Cessna, 62 Pa. 148; Seipel v. Life Ins. & Trust Co., 84 Pa. 47; Ins. Co. v. McAden, 109 Pa. 399.
    The facte are undisputed. There was, therefore, nothing for a- jury to decide.
    The party who dispenses, with or prevents or renders impossible performance of a contract, written or verbal, cannot take advantage of nonperformance by the other party: Grove v. Donaldson, 15 Pa. 128; Dickinson v. Calahan, 19 Pa. 227; Wilson v. Crowell, 48 Pa. 58; Whiteside v. Winans, 29 Pa. Superior Ct. 244; Gilkeson v. Snyder, 8 W. & S. 200; Jones v. Sowers, 204 Pa. 329.

      March 19, 1906:
   Opinion by

Mr. Justice Stewart,

This was an action for damages alleged to have been sustained in consequence of appellant’s failure to complete his contract of purchase-at a public sale made by a trustee in bankruptcy, under authority of the United States district court for the eastern district of Pennsylvania. The. bankrupt whose property was sold, was a licensed retail dealer in liquor in the-city of Philadelphia, conducting a saloon .in premises leased for that purpose. -He was the owner of the furniture and fixtures of the place. Regardless of what was contained in the referee’s decree of sale, and in the printed advertisement which closely followed it in the matter of description, the property intended to be sold and which was sold, included nothing but the furniture and fixtures of the saloon, and the unexpired lease of the premises. The order made by the referee, so far as it included the license that had been granted to the bankrupt, was nugatory. A license granted for the sale of liquor could not be made the subject of such sale; since a license of this character is but a personal privilege, not assignable except as' authorized by the act of assembly, and in the mode therein prescribed: Blumenthal’s Petition, 125 Pa. 412. The fact that something outside the power of the court to sell was included in the order of sale, could not affect in any way the validity of the order with respect to those articles of property which were properly included. As to these, the order stood as though nothing else was included in it. In some other form of proceeding, the fact that the same mistake appears in the printed advertisement might be of more or less consequence, but in this inquiry it is without any. Appellant does not claim that he was misled by the advertisement. He asserts as the only reason and excuse for his failure to comply with his contract, that the bankrupt whose property' he purchased, had given him to understand after the sale that he would resist and prevent the license being transferred to him. That nothing beyond the furniture, fixtures and unexpired lease was intended to be sold, and that buyers must have so understood, is manifest from the fact that in all the printed notices and public announcements, the sale was advertised as a conditional sale, subject, first to the approval of the court, and, second, to the transfer of the license by the license court. The notice given at the sale contained these words : “ If the license court fails to transfer the license to the purchaser, there is no sale, and the purchaser will receive his money (the hand money) back.” Being a conditional sale of property, depending upon the approval by the court of an application to be made for the transfer of the license to the purchaser, its validity is not open to question. We concede the point urged upon argument, that a license to sell liquor is not the subject of sale, but this circumstance does not affect the present case except in the way we have indicated. The learned trial judge was correct in his view of the law of the case, and the assignments of error that relate thereto, are overruled. But error that requires reversal, was committed in giving binding instructions to the jury to find for the plaintiff the amount expressed by the verdict. This is complained of in the first assignment of error. Whether the true measure of damages in this case was the difference between the price at which appellant agreed to buy and the price obtained at the second sale, depends on whether the second sale was a fair one and made upon the same terms as the first in' every material respect. But before this measure could be applied, a finding by the jury was necessary with respect to these facts. The facts were not admitted, and the evidence relied on to establish them was in a large part oral testimony. This necessarily drew the case to the jury. It matters not how conclusive and overwhelming the testimony, it was for the jury and it alone to pass upon the credibility of the witnesses, and place the correct construction upon the language they used: Reel v. Elder, 62 Pa. 308. This is settled law, and its disregard must prove fatal in every case where properly excepted to.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Potter, Mr. Justice Elkin,

text:
    Hotchkin, Appellant, v. Erdrich.

      Negligence — Dangerous premises — Chimney stack — Inspection—Nonsuit.
    - In an action against the owner of a brewery to recover damages for personal injuries, it appeared that the defendant had a contract with plaintiff’s employer by which the latter was to place a leaden cap over .the top of a tall chimney stack. - In making the arrangements the architect of the defendant told the employer o'f the plaintiff that there was an inside ladder which the workmen could use to ascend the chimney, and this information was repeated to plaintiff. At.the time appointed, plaintiff who was to do the work, appeared at the brewery and asked where the stack was, and was shown to the chimney, and the manhole leading into it. After satisfying himself that the fires were out, and that there was no danger from that score, he entered the chimney, and found there a series of rungs or iron bars extending across a section of the stack,' with the ends of the bar walled, or embedded in the brick sides of the chimney, one bar above the other, at irregular intervals from the bottom to the top, thus.forming in éffeet a crude ladder. Before he began to ascend, and as he reached them in succession, the plaintiff tapped each rung or bar with a piece of solder, to ascertain if it was firm and solid before trusting his weight to it. His object in going up the chimney at this time was, not to begin.the actual work, but to obtain necessary measurements. After mounting some distance,'he was standing‘upon one bar, with his hands upon another about opposite his waist, and then with his right hand he reached up to a third bar, which he tapped .with the solder, and found it apparently secure. He testified ’that the tapping with the solder would, in his judgment, show whether the rungs were solid. Being satisfied with the test as to this particular bar, to which he was about to transfer his weight, he changed the solder to his left hand, and took hold of the bar with his right hand, and while thus in the act of raising himself, the iron bar pulled-out, bringing with it a .brick, and the plaintiff fell- to the bottom of the stack, sustaining severe injuries. - The testimony did not show any. direction to the plaintiff by the-defendant to use the inside ladder, but it did'show permission, or possibly an invitation, to do so. Held, that a nonsuit was properly entered.
    Mestrezat and Elkin, JJ., dissent.
    Argued Jan. 22, 1906.
    Appeal, No. 100, Jan. T., 1905, by plaintiff, from order of O. P. No. 5, Pbila. Co., March T., 1908, No. 1,822, refusing to take off nonsuit in case of William P. Hotchkin v. John B. Erdrich, trading as Andrew Erdrich & Son.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Davis, J.

      The facts are stated in the opinion of 'the. Súpreine Court.'
    The court .‘.entered a., co'mpuls'oiy: nonsuit. which. it subse>-' qúently refused to take off:' ”

      Error assigned was refusal to'take off nonsuit.

      George S. Graham, with him J. Quincy Hunsicker, for appellant.
    The case was for the jury: Phila. & Reading R. R. Co. v. Spearen, 47 Pa. 300; Schilling v. Abernethy, 112 Pa. 437; Duffy v. Sable Iron Works, 210 Pa. 326.
    As to a licensee the owner is liable for active negligence but as to an invited person, for passive negligence: Severy v. Nickerson, 120 Mass. 306; Larmore v. Crown Point Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752).
    Invitation will be inferred where there is a common interest or mutual advantage in the absence of express invitation, but in this case the invitation was express because the defendant pointed out and indicated the ladder as the means- to be -used by the employees of Thorn company to reach the place where the work was to be done: Bennett v. R. R. Co., 102 U. S. 577; Polenske v. Lit Bros., 18 Pa. Superior Ct. 474; Clopp v. Mear, 134 Pa. 203; Woodruff v. Painter, 150 Pa. 91; Klapproth v. Baltic Pier, etc., Co., 43 Atl. Repr. 981; Bright v. Barnett & Record Co., 88 Wis. 299 (60 N. W. Repr. 418); Indermaur v. Dames, L. R., 1 C. P. 274; Hargreaves v. Deacon, 25 Mich. 1; Sweeny v. Old Colony, etc., R. R. Co., 92 Mass. 368; Corby v. Hill, 4 C. B. N. S. 556; Evansville, etc., R. R. Co. v. Griffin, 100 Ind. 221-223; Pottstown Iron Co. v. Fanning, 114 Pa. 234; Pender v. Raggs, 178 Pa. 337; Larmore v. Crown Point Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752).
    Actual knowledge or notice of defects on the part of the owner is not necessary: Nichols v. R. R. Co., 83 Va. 99 (5 S. E. Repr. 171); Carleton v. Iron & Steel Co., 99 Mass. 216; Indermaur v. Dames, L. R., 1 C. P. 274; Woodruff v. Painter, 150 Pa. 91; Pittsburg v. Grier, 22 Pa. 54; Corby v. Hill, 4 C. B. N. S. 556.
    ' If the ladder be regarded as an appliance provided by the defendant for the use of the plaintiff in the performance of the said work the same rules apply: Bright v. Barnett & Record Co., 26 L. R. A. 524; Sharpley v. Wright, 205 Pa. 253.

      Thomas Leaming, with him Benjamin Alexander, for appellee.
    There was no evidence of defendant’s negligence: Sykes v. Packer, 99 Pa. 465; Wannamaker v. Burke, 111 Pa. 423; Kerrigan v. Penna. R. R. Co., 194 Pa. 98.
    There was no duty to inspect the inside of the chimney: Walton v. Bryn Mawr Hotel Co., 160 Pa. 3.
    There was no actual notice, nor constructive notice, of any defect: McKenna v. Paper Co., 176 Pa. 306.
    Plaintiff assumed the risk: McKinzie v. Phila., 8 Pa. C. C. Rep. 293; Durst v. Carnegie Steel Co., 173 Pa. 162.
    March 19, 1906:
   Opinion by

Mr. Justice Potter,

This was an action of trespass to recover damages for personal injuries sustained by the plaintiff while he was upon the premises of the defendant, for the purpose of preparing to make repairs at the top of a tall chimney connected with the defendant’s brewery. Upon the trial, at the close of plaintiff’s testimony, a judgment of nonsuit was entered, which the court below refused to take off. It appears from the evidence that shortly before the time of the accident, the defendant had plans and specifications prepared for an extension to his plant. Tn this connection, although the chimney in question was not a part of the new construction, it was ascertained that a new leaden cap over one-half of the top of the smokestack, would be required. The defendant consulted his architects, and through them, a written' contract was made with the Thorn company to furnish this cap and put it in place. The plaintiff in this ease, was a competent and experienced workman, who had been for many years employed by the Thorn company. It was arranged that this particular bit of work should be done on a certain Monday morning, when the fires were to be put out at the brewery. In making the arrangements the architect of the defendant told the employers of the plaintiff, that there was an inside ladder which the workmen could use to ascend the chimney; and this information was repeated to the plaintiff. At the time appointed, he appeared at the brewery, and asked where the stack was, and was shown the chimney, and the manhole leading into it. After satisfying himself that the fires were out, and that there was no danger from that score, he entered the chimney, and found there,, a series of rungs-or iron bars extending across a section of the stack, with the ends of the bars walled, or embedded in the brick sides of the chimney, one bar above the other, at irregular, intervals from the bottom to the top, thus forming in effect a crude ladder. Before he began to ascend, and as he reached them in succession, the plaintiff tapped each rung or bar with a piece of solder, to ascertain if it was firm and solid before trusting his weight to it. His object in going up the chimney at this time was, not to begin the actual work, but to obtain necessary measurements. After mounting some distance, he was standing upon one bar, with his hands upon another about opposite his waist, and then with his right hand he reached up to a third bar, which he tapped with the solder, and found it apparently secure. He testified that the tapping with the solder would, in his judgment, show whether the rungs were solid. Being satisfied with the test as to this particular bar, to which he was about to transfer his weight, he changed the solder to his left hand, and took hold of the bar with his right hand, and while thus in the act of raising himself, the iron bar pulled out, bringing’with it a brick, and the plaintiff fell to the bottom of the stack, sustaining severe injuries.

The testimony does not show any direction to the plaintiff by the defendant to use the inside ladder, but it does show permission, or possibly an invitation, to do so.

The case presented is that of one injured while on the premises of another, in the discharge of the duties of his employment: He was not, however, the servant of the defendant, but was in the employ of the contracting firm who were to do the work. . The defendant had no right to control his actions, and apparently did not even offer him any advice. The plaintiff was not injured in a passageway provided for the ordinary use of anyone. On the contrary, he was hurt while ascending the inside of the chimney, and while in a place and position which only upon rare occasions, was occupied by anyone. Undoubtedly, the iron bars had been placed in the chimney at the time of its construction, for the use of the workmen, and had been left there for the possible use of those making repairs, or otherwise requiring access to the inside of the stack. The work required of the plaintiff was in its nature perilous, as it had to be done at a great height from the ground, and that the plaintiff appreciated the danger was shown by the care with-which. he made his preparations for the ascent, and by the close inspection which he gave to each rung of the ladder as he mounted, step 'by step. He intended to take nothing for granted, in so far as his safety in this respect was concerned, but tested-each bar as he came to it. This is not a case where the relation of master and servant exists, in which a higher degree of duty is imposed, but even in such cases, the master is not responsible for the danger involved in mounting scaffolds, or ascending unfinished stairwaj'S, or in- passing perilous places, where the workman voluntarily goes in the prosecution of his work with as much knowledge of the risk as his employer has : Sykes v. Packer, 99 Pa. 465. The same degree of attention is not required in caring for a place which is only used at rare intervals as is requisite in the maintenance of a passageway used constantly or frequently by employees or by the public: Kerrigan v. Penna. R. R. Co., 194 Pa. 98. It is undisputed here that no occasion for inspecting the inside of this chimney, or for making any use of the ladder had arisen for nine years ; and, when the plaintiff found that the convenient way of ascending the chimney was by means of the ladder, he did not assume that it. was in good condition, but he took the precaution to carefully inspect the rungs as he ascended, and proceeded only as he felt justified in doing from the result of his tests. The work in which the plaintiff was engaged when he fell, was essentially that of inspection: Had he been deceived by any statement of the defendant as to the condition of the ladder, or had he even relied upon any assurance given to him that it was fit.for use, the case would have been different. But it is apparent from the testimony that he was testing the safety of the ladder for himself, and was relying upon his own judgment.' No better method of inspection was suggested than that which he adopted, and if anyone else had attempted to perform the same duty, the same danger would have been faced.

The. plaintiff, as a careful, experienced and competent man, was sent by his employer to do the work, and the premises, including the chimney and the ladder inside of it, were placed at his disposal for that purpose. He was not ordered or instructed by defendant to use the ladder; he was merely permitted to do so if, and as, he saw fit. When he arrived at- the place, in-response to his inquiry,- the stack was pointed out-to-, him, and he thereafter used and relied upon his own judgment. Even the particular har which pulled out, and caused -his fall,was examined and approved by him as sufficient, before he placed,his weight upon it. Evidently, his method of' testing,- or inspecting, was at fault; for the real weakness of the fastening of the bar in question was not revealed by the test which he made. But certain it is that in doing the work, he assumed the risk for himself. To hold otherwise, under the facts of this case, would be to make the defendant an absolute insurer-of the safety of the plaintiff while he was testing the ladder for the purpose of his employment.

We think the conclusion reached by the learned trial judge was correct, and the judgment is affirmed.

Mr. Justice Elkin,

dissenting:

The learned trial judge directed a nonsuit to be entered upon the grounds, first, that no negligence by the defendant was proven; and, second, that no duty to the plaintiff devolved on the defendant. In my opinion, this is an erroneous view of the law as applied to the facts of this case. The • appellant was not making use of the ladder as a trespasser, nor as a mere licensee,- but on the contrary was using it upon the invitation of the defendant. It matters not whether the invitation was’ 'in express terms or by implied inference under the facts. The appellant went upon the premises of the appellee to perform work contracted for by the owner whose duty it was to see that the ladder pointed out to the workman as a means of reaching the top of the stack where the work was to be performed, was reasonably safe for the purpose intended. One who enters upon the premises of another on lawful business (in this case to perform work for the owner) by invitation, either express or implied, has “ a right to believe that, taking reasonable care of himself, all reasonable care has been used by the owner to protect him in order that no injury may occur: ” Severy v. Nickerson, 120 Mass. 306; Larmore v. Crown Point Iron Co., 101 N. Y. 391 (4 N. E. Repr. 752).

The, rule stated is good sense and good Taw. Under the facts in the case at bar it is clear the - plaintiff went upon the premises and used the ladder by express invitation of defend* ánt. It is not necessary, however, to go so far in order to sustain the rule, because all the authorities agree that the invitation may be inferred where there is a common interest or mutual advantage. For discussion of principle involved, see Bennett v. L. & N. R. R. Co., 102 U. S. 577. That the duty of reasonable care rests upon the owner of premises to persons who come upon the same by invitation, is a rule recognized and followed in our cases. In Woodruff v. Painter, 150 Pa. 91, at page 96, Mr. Justice Heyduick, discussing the principle involved,said: “That the duty neglected would arise from an implied contract that if customers would come to their store no harm that could reasonably be averted should overtake them, and the consideration for such promise would be the chance of profit from their patronage.”

In the present case, the advantage or profit to the defendant in suggesting the use of the ladder as a means of ascending tho stack was in the reduced cost of placing the metal cap on the top of the same by reason of doing away with the necessity of erecting scaffolding. It is the duty of the owners of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purpose for which the invitation is extended: 21 Am. & Eng. Ency. of Law (2d ed.), 471.

A brief recital of the facts will show whether appellant was on the premises by invitation of defendant. The Thorn company sent a representative to the architects to ascertain the kind and quantity of materials to be used, work to be done, and other necessary data upon which to base an estimate of cost. This representative having ascertained the quantity of material required, very properly asked, “ What means have you for our workmen to get to the top of that stack ? ” Whereupon the architects replied, “ There was an inside ladder in the stack for the purpose of getting up to the top of it, and that we could have the use of it.” With this information as to materials, necessary labor, and the ladder as a means of reaching the top of the stack, the estimate of cost was made and proposition submitted to defendant. It was accepted and the contracting firm sent appellant, a competent and trusted employee, to do the work. Before going to work on the stack, appellant met defendant in person who directed him “to go in and see Mr. Wagner,” his superintendent, for instructions. He waited on the superintendent as directed, asked him where the stack was, and how to reach the same, and was answered as follows: “ Come along with me (the superintendent) and I will show you. . . . Here is the stack; there is the manhole; you go through there, and the ladder is on the left side, walled in. The ladder is on that side.” When appellant was ordered by his employer's to do this work, he was informed that there was no scaffolding there, and that he would find a ladder inside the stack for the purpose of reaching the top. With this information, and these instructions from his employers, and with the superintendent of the defendant pointing out the opening to the stack, and directing him where to find the ladder inside, the appellant proceeded carefully to ascend the ladder, the use of which had been suggested by the architects and superintendent who acted for and represented the defendant with full authority so to do. Under these circumstances the defendant ought not to be permitted to say that appellant did not use the ladder by invitation, either express or implied. If he was there by invitation, and of this there can be no doubt, be had a right to assume the ladder was reasonably safe for the use intended, and it was negligence on the part of defendant in not inspecting it from time to time, and in not maintaining it in proper repair for the use suggested to appellant.

I cannot accept as sound the contention that the appellant assumed the risk of a defective ladder under the facts of this, case. He knew nothing about the ladder. He did not know in what manner nor how long it had been erected nor the uses for which it was intended. These facts were known to appellee but unknown to appellant who had a right to act on the assumption, when invited to use the ladder, that it was reasonably safe and that proper care had been exercised in erecting and maintaining it. It is no answer to say that appellant was an expert workman and could judge for himself whether it was safe or not. No workman, expert or inexperienced, could tell by looking up the inside of a smokestack 172 feet high that a ladder way “ walled in ” had not been properly made, nor sufficiently protected, nor that the rungs or sides were not in safe condition; "Nor do I agree with the argument that because appellant.used'care in ascending the ladder by tapping each rung above him he thereby assumed the risks of a defective ladder. This would be the equivalent of saying that the negligence of the ’defendant in not inspecting ,tlie ladder for nine years or maintaining it in proper repair is to be excused because appellant used the greatest possible care iu ascending it. The suggestion made by the learned counsel for appellee that this was not intended as a ladder but was a temporary passageway left as a convenience for workmen in getting down from the stack at the time of its erection, does not strengthen the case. . If this, be true, defendant was. grossly negligent in inviting appellant to make use of an improvised ladder constructed nine years before for temporary purposes, without informing him of these facts. This case does not belong to the class of cases wherein the employee has been held .to assume the dangers of his employment which are open and. obvious, and known to him, pr with which he had the opportunity to become acquainted. The dangers in this ease were not open and obvious.. No one could tell by looking at the ladder whether it was safe or not. ' There wás no open and obvious danger to put appellant ón notióe. He was not familiar with the risks or dangers. He did not know anything-about the construction of the. ladder,, how long it had been built, nor whether it had been properly maintained. It was the duty of defendant to inform him of these things if he wished to be relieved from liability. The appellant had the right to rely on the assumption that the ladder was- fit for use because defendant invited him to use.it.

’ If the ladder was a permanent construction to be .used-, by persons in ascending the stack, it was the,duty of defendant to inspect and. keep it in proper repair for-the use intended,-and failure tu do so is negligence. - If, on-the-other hand, the ladder was' only constructed as a'temporary convenience for the workmen’in descending the stack at the time of its erection, as suggested by the learned counsel for appellee, .defendant was negligent in inviting plaintiff to make use of-it as a. means to reach, top of the stack nine years after it had been -constructed for the alleged temporary use, without giving appellant -notice of these facts.

The position taken by the learned court below-that defendant owed no duty to appellant because he was not his employee^ Cannot be sustained. While the degree of care as between hi's own employee, and the employee of the contracting firm, may vary, yet there caii be no doubt, under the authorities cited; as well as the rule of our own cases, he owed a duty to appellant who was lawfully upon the-premises, themeglect of which would make him liable for injuries resulting from negligence: Pender v. Raggs, 178 Pa. 337; Pottstown Iron Co. v. Fanning, 114 Pa. 234.

For these reasons I would reverse the judgment with" a procedendo;

Me. Justice Mesteezat joins in the dissent.