author: Mr. Justice Brown,

text:
    Commonwealth ex rel., Appellant, v. Kessler.

      Bridges — County bridges — Maintenance of bridge — Vacation of road on one side of stream.

    A county cannot be required to erect a bridge over a stream unless the stream crosses a public road or highway.
    Where under a misapprehension of facts a bridge is erected by a county across a stream within the limits of a city at a point where a public street extends only to the bank of' the stream without any extension thereof on the other side, but thereafter an extension of the street on the other side is opened, the county will be liable after the opening of the extension for the maintenance of the bridge; but if the older or original portion of the street is vacated and closed, so that there is no continuous street across the stream, the liability of the county for the maintenance of the bridge ceases.

      Mandamus — Right of relator.

    Mandamus goes out only where there is a clear legal right in the relator and a corresponding duty upon the defendant.

      Argued May 18, 1908.
    Appeal, No. 75, Jan. T., 1908, by plaintiff, from order of C. P. York Co., Jan. T., 1908, No. 66, refusing mandamus in case of Commonwealth ex rel. James G. Glessener, District Attorney of York County, v. Robert G. Kessler, Emanuel Hartman and George W. Holtzinger, Commissioners of York County.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition for mandamus. Before Bittenger, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal of mandamus.

      John I. Bouse, city solicitor, for appellant,
    cited: Berks Co. v. Reading City Pass. Ry. Co., 167 Pa. 102; Howe v. Commissioners, 47 Pa. 361; In re Spring St., 112 Pa. 258; Larue v. Oil City St. Pass. Ry. Co., 170 Pa. 249; Lawrence County v. Ry. Co., 8 Pa. Superior Ct. 313.

      II. G. Brenneman, county solicitor, for appellee.
    June 2, 1908 :
   Opinion by

Mr. Justice Brown,

The situation in this case is somewhat anomalous. In 1892 proceedings were instituted in the court of quarter sessions of York county for the erection of a bridge by the county of York over the Codorus creek at a point where it was alleged in the petition asking for the appointment of viewers, “ College avenue, a public highway in the city of York, crosses the same.” Yiewers were appointed, who reported in favor of the bridge and that it would require more expense than it was reasonable the city of York should bear. This report ivas subsequently approved by a grand jury and the court, and the bridge was erected at the expense of the county. It is now out of repair, and this appeal is from the refusal of the court below to require the county commissioners to keep it open and in repair for the traveling public. There was a demurrer filed to the alternative mandamus issued at the instance of the mayor of the city of York, and the case was heard on the petition, return, demurrer and facts agreed upon.

The proceedings for the erection of the bridge were instituted and carried on under an impression that the Codorus creek crossed College avenue, a public highway of the city of York. As a matter of fact, now admitted, neither this avenue nor any public street had ever been opened by ordinance or order of court, west of the creek to its western bank at the point where the bridge was erected, and the creek did not, therefore, cross a public road or highway. But for the misrepresentation appearing in the petition for the appointment of the viewers, no doubt innocently made, the bridge would not have been erected by the county, for if the real situation had been known to the court, the viewers could not have been appointed. A stream must cross a public road or highway when a bridge is to be erected by a county. The conclusion of the learned judge below was that this bridge was a creature of misrepresentation from its beginning.”

In 1902 College avenue west of the creek was opened and adopted as a public highway up to the western terminus of the bridge, and, if this were all that was in the case, we should not be inclined to sustain the judgment below, for the situation would be the crossing of the creek by a public highway, and what the viewers, grand jury and court found to be necessary in 1892 would certainly be more so in 1908 with the growth and development of the city.

On the east bank of the creek a very different situation now exists. East College avenue, which at the time the bridge was erected extended to the creek, no longer reaches it. Before the county refused to continue its maintenance and repair of the bridge that avenue was vacated as a public highway from a point east of the right of way of the Northern Central Railway Company to the east bank of the creek. What the exact distance is does not appear. True, a span extends from the western terminus of East College avenue over the tracks of the railway company and connects with the bridge across the creek, and it may be regarded as part of the bridge, but even if there was at any time a duty upon the county to maintain this span, that duty ceased when the .street under it was vacated. There is no longer a street of the city over the tracks of the railway company reaching to the east bank of the creek to which East College avenue formerly had extended. This is just the situation as gathered from the pleadings and the admissions, and if a duty ever did rest upon the county to maintain and repair the bridge and span and keep them open as part of a public highway, that duty was suspended with the suspension of the highway. On the west bank of the creek West College avenue abruptly now ends. A gap extends ■ thence all the way across the creek up to and over the railroad tracks. In this gap as it now exists the city of York has no rights, and within it there is no duty to be discharged by the county. Mandamus goes out only where there is a clear legal right in the relator and a corresponding duty upon the defendant: Commonwealth v. Fitler, 136 Pa. 129.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Sechler v. Eshleman, Appellant.

      Wills — Devise-^-Estate tail — Rule in Shelley’s case — Fee simple estate.

    A devise by a testator to his brother for life and after his death to the four daughters of his brother, to each an undivided one-fourth part of the land for life, and after the death of each niece, “unto her children and their heirs and assigns forever,” creates an estate tail in each niece which is resolved into an estate in fee simple under the Act of April 27, ' 1855, P. L. 328.
    Submitted May 18,1908.
    Appeal, No. 148, Jan. T., 1908, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1908, No. 21, for plaintiffs on case stated in suit of Emilie M. E. Sechler et al. v. Joseph Eshleman.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to determine the title to real estate.
    Hassler, J., filed the following opinion :
    This is an action to recover the price agreed upon for certain real estate in Martic township, known as the Bernard Short farm, containing 171 acres more or less. The facts necessary for a proper disposition of the case have been agreed upon in the form of a case stated. The plaintiffs’ right to recover depends upon whether they and their sister, now deceased, had an absolute title in fee simple to the real estate in question, under the will of Robert A. Evans, deceased, who died on August 28, 1889. The will is dated May 17, 1889, and the item of it under which they take their title is as follows:
    “ Sixteenth, I give and devise the following farms and plantations : My farm or tract of land called Pen Hill, situated in Pulton township, Lancaster County, containing one hundred and fifteen acres, be the same more or less, with the appurtenances ; also my farm in Martic township, Lancaster County, known as the Bernard Short farm, containing one hundred and seventy-one acres, be the same more or less, with appurtenances ; also my farm in West Drumore township, Lancaster County, known as my Rodgers farm, containing two hundred and thirty-five acres, be the same more or less, with the appurtenances, unto my brother, John James Evans, for and during the term of his natural life, but he shall not cut and use more of the timber growing on said farms than what is necessary to keep the fences thereon in good order and repair, and from and immediately after his decease, I give and devise the same unto my nieces, Emily Evans, Helena Evans, Marietta Evans and Elizabeth Evans, children of my said brother, John James Evans, that is, to each one, the undivided one-fourth part thereof for and during the term of her natural life; and from and immediately after the decease of said Emily Evans, I give and devise the undivided one-fourth part of said three farms given to her for life unto her children and their heirs and assigns forever ; and from and immediately after the decease of said Helena Evans, I give and devise the undivided one-fourth part of said three farms given to her for life unto her children and their heirs and assigns forever ; and from and immediately after the decease of said Marietta Evans, I give and devise the undivided one-fourth part of said three farms given to her for life unto her children and their heirs and assigns forever ;.,and from and immediately after the decease of said Elizabeth Evans, I give and devise the undivided one-fourth part of said three farms given to her for life unto her children and their heirs and assigns forever. The devises hereinbefore made to the children of said Emily, Helena, Marietta and Elizabeth Evans, shall embrace and include the issue of any of such deceased child or children, and such issue taking such part or portion thereof as his, her or their deceased parent or parents would have had taken had he, she or they been living.”
    John J, Evans died on January 26, 1890. At the time of the death of Robert A. Evans the four nieces mentioned in the will were unmarried, and all were living when John J. Evans died. Marietta Evans, one of the nieces, died unmarried on November 13, 1895, leaving a will, dated May 10, 1893, which was duly probated, in which she bequeathed her estate in the land which is the subject of this controversy, to her three sisters, who, with the husband of the one married sister, are the plaintiffs in this case. None of the four nieces mentioned in the will ever had any children.
    The question, as we have .stated, for us to pass upon is whether the plaintiffs take an estate in fee simple or fee tail, which under the act of 1855 is converted into a fee simple, under the will of Robert A. Evans, or only a life estate. If the former, they are entitled to recover; but if they only take a life estate, the judgment must be for the defendant, for then they cannot convey an estate in the land in fee simple as they have agreed to do.
    We are of the opinion that this case is governed by the rule in Shelley’s case, which is as follows: “ When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance the estate is limited, either mediately or immediately, to his heirs in fee, or in tail, always in such cases £ the heirs ’ are words of limitation of the estate and not words of purchase.” It is held in a number of cases that ££heirs of the body” are also words of limitation and not words of purchase under this rule, and that the estate taken by the ancestor when these words are used is an estate in fee tail: Curtis v. Longstreth, 44 Pa. 297; Allen v. Henderson, 49 Pa. 333; Bassett v. Hawk, 118 Pa. 94; Reimer v. Reimer, 192 Pa. 571. The word “children” is ordinarily a word of purchase and not a word of limitation, yet when it is used to signify a whole line of decendants of the first taker as an equivalent of “ heirs of the body,” it creates an estate tail under the rule.
    This has been decided in a number of quite recent cases.
    In Pifer v. Locke, 205 Pa. 616, the testator devised a house and lot to his daughter “ For and during her natural life, and at her death, I devise and bequeath the same unto her children or issue in fee simple.” Held, that she took a fee simple. In the opinion of the court, it is said, “We concede that generally the words £ child ’ and £ children ’ prima facie are words of purchase and not of limitation. See the many cases cited in Guthrie’s Appeal, 37 Pa. 9. But if the remainder, even where these words are used, is to go to the general or lineal heirs as pointed out by law, they are synonymous with £ heirs of the body,’ and by analogy to the rule in Shelley’s case, the estate for life in the first taker is enlarged into a fee or into an estate tail by implication. Here the devise at the daughter’s death is to her children or issue in fee simple, precisely as if he had said to my daughter and the heirs of her body, the very ones the law pointed out as the general or lineal heirs of the'first taker.” In Simpson v. Reed, 205 Pa. 53, the word's of the will are: “ I give to my daughter, Martha Bell Simpson, the equal, undivided one-fifth part or share of all my real estate for life only; remainder after her death to her child or children in fee,” etc. Held, that she took an estate in fee tail general, which the Act .of April 27, 1855, P. L. 328, resolved into a fee simple. In the opinion Justice Dean says: “Did the testator here use the words ‘child’ or ‘children’ in the sense of heirs -of the body or issue ? Prima facie they are words of purchase and not of limitation, and the devisee took but a life estate: Guthrie’s Appeal, 37 Pa. 9, and the many cases therein cited; but is the remainder to go to the general or lineal heirs of the first taker as the law determines % Of course the estate -of the first taker must be a freehold estate for life or for years; it is then to go to her child or children in fee, the lineal heirs of the first taker whom the law identifies. ‘ Any form of words sufficient to show that the remainder is to go to those whom the law points out as the general or lineal heirs of the first taker will enlarge the estate in fee or estate tail by implication. . . .’ A long list of those cases in which the words ‘ child ’ and ‘ children ’ have been held to be words of limitation by analogy to the rule in Shelley’s case is given by Agnew, J., in Yarnall’s Appeal, 70 Pa. 335. . . . The word ‘ child,’ since the daughter had no child at the time, was not a designatio person®, but comprehended a class, and the daughter took an estate tail: Jones v. Davies, 4 Barn. & Adolph, 43.” In McKee v. McKinley, 33 Pa. 92, the words of the will were: “ To my daughter .... during her lifetime .... after her death to her children, if any surviving, or issue of such children, and in case of no children or issue of children, then to return to my relatives or lawful heirs.” In referring to this case in Simpson v. Reed, 205 Pa. 53, Justice Dean says: “ It was held that the devise was to the daughter for life and then to her children in fee, and in default of these to testator’s heirs; that this was only another way of devising to the plaintiff for life, with the remainder to her heirs, or to the plaintiff and her heirs; that the roundabout way the testator takes to say ‘ heirs ’ does not affect the substance. It appears that at the date of the will the daughter was single and did not contemplate marriage. She having no children, and no particular ones being in the mind of the testator, for he could not know what children or how many would be the issue, we think he intended the ‘issue’ to take in lineal descent. Therefore, the daughter took an estate in fee tail general, which the statute of 1855 resolves into a fee simple.”
    With the law as laid down in these cases before us, it is not a matter of much difficulty to construe the will under which the plaintiffs have their title. A freehold estate is given to them. A remainder of each undivided fourth of the estate is given, on the death of each one of the four nieces, to “her children and their heirs and assigns forever,” without a bequest over in case of such niece’s failure to have children. Each share is to go to the lineal heirs, as pointed out by law, on the death of each niece, and the word “ children ” is synonymous with “ heirs of the body.” The Avord “ children ” is not a designatio personae, as none of the nieces had any children and all were unmarried at the time of testator’s death. The use of the words “ children and their heirs and assigns forever,” therefore, was only another way of devising the undivided part of the land to each niece and the heirs of her body, and the roundabout way which the testator takes to say “heirs ” does not affect the substance. The estate which the plaintiffs, and the deceased sister took under the will, according to the rule in Shelley’s case, is a title in fee tail general, which is resolved into a title in fee simple by the act of 1855. They are, therefore, able to convey such title to the defendant as they agreed to convey, and entitled to recover the purchase money which the defendant agreed to pay. We, therefore, enter judgment for the plaintiffs for the sum of $4,000.
    Judgment for the plaintiffs.

      Error assigned was the judgment of the court.

      J. B. Kinzer, for appellant.

      W. U. Hensel, for appellees.
    June 2, 1908:
   Per Curiam,

The judgment is affirmed on the opinion of the learned judge of the common pleas.


author: Mr. Justice Elicin,

text:
    Sullivan v. Hanover Cordage Company, Appellant.

      Negligence — Minors—Oiling machinery in motion — Contributory negligence — Act of May 2, 1905, P. L. 352.
    Under the Act of May 2, 1905, P. L. 352, a boy under the statutory age, employed to clean or oil machinery while in motion, is not chargeable with contributory negligence, or with having assumed the risks of employment in such occupation; and this is the case whether the attempt to clean is made when the machine is in motion for the purpose of operation, or whether it is in motion for the purpose of cleaning, if in point of fact the motion is of the same dangerous character in both instances. It is for the jury to determine whether at the time of the injury, the machine was in dangerous motion.
    Argued May 19, 1908.
    Appeal, No. 89, Jan. T., 1908, by defendant, from judgment of C. P. York Co., Jan. T., 1907, No. 86, on verdict for plaintiff in case of Paul T. Sullivan, by his father and next friend Noah Sullivan, and Noah Sullivan v. Hanover Cordage Company.
    Before Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy fifteen years of age. Before Bittenger, P. J.
    At the trial it appeared that plaintiff, when a little over fifteen years oí age, was employed by the defendant in its cordage works. On July 20, 1905, while engaged in cleaning a machine his hand became caught in the machine and was crushed. The evidence showed that the machine was not in regular operation at the time, but that it had been put in operation to facilitate the cleaning.
    The court charged in part as follows:
    [This act of assembly which I read to you, which is the law, the act of 1905, does not make it unlawful for parties operating this kind of work or machinery to employ a minor under sixteen years of age, but it does make it unlawful to permit him to clean or oil machinery while in motion, or to operate or otherwise have the care or custody of any elevator or lift. The other act of assembly, of 1901, makes it unlawful to employ such a minor under sixteen years of age without an affidavit being filed in the office provided for in the act of assembly, and goes further than this last act of assembly. We instruct the jury that this is an important point in the case. Did they know when they employed this boy he was under sixteen years of age ? Did they know when they put him in charge of this machine that he was under sixteen years of age, and did they know how he was instructed to clean this cylinder when the belt was on and the machine moving ? Were they aware of the fact that it was being done in this way, .and did they order him or place him in control of that machine, or allow him to operate it knowing he was under sixteen years of age ? If they did, then, even if he was negligent in this matter and his negligence contributed to this injury, if he allowed Troné to turn on too much power when he should have turned on but little, or if he cleaned the machine when it was going too fast, why then the defendant company cannot take advantage of it; they cannot take advantage of the concurrent negligence. The Supreme Court have decided the defendant cannot make a defense of this character when they have violated the law in the matters here at issue in the case.] [6]
    Yerdict and judgment for Paul T. Sullivan for $3,000 and for Noah Sullivan for $1,000. Defendant appealed.

      Error assigned was portion of charge as above, quoting it.

      Henry O. Hiles, with him O. J. JDelone and George S. Sehmidt, for appellant,
    cited: McEwen v. Hoopes, 175 Pa. 237; Cracraft v. Bessemer Limestone Co., 210 Pa. 15.

      Chas. A. Hawlahis, with him -O. E. Ehrehart and J. S. Black, for appellees,
    cited : Rummel v. Dilworth, 131 Pa. 509; Kehler v. Schwent, 151 Pa. 505; Doyle v. Pittsburg Waste Co., 204 Pa. 618; Grizzle v. Frost, 3 Fost. & Finl. 622; Lenahan v. Coal Mining Co., 218 Pa. 311.
    June 2, 1908 :
   Opinion by

Mr. Justice Elicin,

In Lenahan v. Pittston Coal Mining Company, 218 Pa. 311, it was held, that a boy under the statutory age employed to perform the dangerous kind of work prohibited by the statute, is not chargeable with contributory negligence or with having assumed the risks of employment in such occupation. In Stehle, by his next friend, v. Jaeger Automatic Machine Company, 220 Pa. 617, further consideration was given to the application of the rule under the Act of May 2,1905, P. L. 352. In this case it became necessary to pass upon the requirements of section four of that act, which provides that no minor under sixteen years of age shall be permitted to clean or oil machinery while in motion. Following the rule of the Lenahan case, it was again held, that an employer who violated the law by engaging a boy under the statutory age to perform the dangerous kind of work prohibited by the statute, did so at his own risk, and in an action of trespass for personal injuries sustained by the boy while so employed, the master cannot set up as a defense either the assumption of risk or the contributory negligence of the boy servant. It is contended, however, in the present case, that the rule of these cases does not apply, because the machine, which the boy was attempting to clean at the time he was injured, was not in motion within the meaning of the statute. It is argued with much force that the prohibition of the statute is directed against an attempt to clean a dangerous machine while it is in motion in the usual method of operation. In a sense this may be true, but it is the kind of motion, not the purpose, the statute guards against. It does not matter whether the attempt to clean is made when the machine is in motion for the purpose of operation, or whether it is in motion for the purpose of cleaning, if, in point of fact, the motion is of the same dangerous character in both instances. What the statute intended to prohibit, was the employment of a boy of immature judgment, without experience and lacking in discretion to perform suck dangerous work. We agree that if the machine at the time of the cleaning was not in dangerous motion, such as was usual in its operation, and if the motion, or revolution, at the time of the cleaning, was not dangerous, but simply consisted in partial revolutions made from time to time in order to facilitate the cleaning, the prohibition of the statute would very properly be held inapplicable. . . . On the other hand, if the machine was propelled in the usual manner, and by the same force, or power, while being cleaned as was usual when in operation, and if the motion, or revolutions, were of the same dangerous character, differing only in degree, the court would not be warranted in holding as a matter of law that the prohibition of the statute did not apply. Under such circumstances it would at least be for the jury to determine whether ,at the time of the injury the machine was in dangerous motion. All of these questions were submitted to the jury by the, learned trial judge in such manner as to enable them to justly determine the rights of the parties to the controversy and, in our opinion, appellant has no just cause to complain.

Assignments of error overruled and judgment affirmed.


author: Mr. Justice Elkin,

text:
    Erie v. Erie Traction Company, Appellant.

      Street railways — Municipal consent — Use of other company’s tracks without municipal consent — Constitutional law.

    A grant by a municipality to a street railway company to operate its own lines on certain streets and subject to certain conditions and regulations does not carry with it the right of the company obtaining such franchise to permit other companies to come into the city and use its tracks without municipal consent and against municipal protest.
    Where a street railway company has lost municipal consent to the use of streets by nonperformance of precedent and subsequent conditions in the ordinance granting the consent, it cannot operate its cars on another company's tracks with the consent of such company, but without municipal consent.
    The provision of section 9, article XVII of the constitution that “no street passenger railway shall be constructed within the limits of any city, borough, or district without the consent of its local authorities,” is not to be construed so as deprive municipalities of a right to require street railway companies to secure municipal consent, not only for the “construction” but also for the “operation” of their lines.
    Argued May 19, 1908.
    Appeal, No. 379, Jau. T., 1907, by defendant, from decree of C. P. Erie Co., Eeb. T., 1907, No. 4, on bill in equity in case of the City of Erie v. Erie Traction Company.
    Before Eell, Bjrown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction.
    The opinion of the Supreme Court states the facts of the case.

      Error assigned was the decree of the court.

      T. A. Lamb, with him E. 8. Templeton, for appellant.
    Under several acts of assembly in force in the state of Pennsylvania, it was within the proper of the Erie Electric Motor Company to permit the cars of the Erie Traction Company to be run over its lines within the city of Erie: Rafferty v. Traction Co., 147 Pa. 579; Hestonville M. & F. Pass. R. R. Co. v. Phila., 89 Pa. 210; Millvale Boro. v. Ry. Co., 131 Pa. 1; Conshohocken Borough v. Ry. Co., 18 Montg. 95; Ingersoll v. R. R. Co., 157 N. Y. 453 (52 N. E. Repr. 545); Western Penna. R. R. Co.’s App., 104 Pa. 399.

      John B. BrooJes and Chas. P. Hewes, with them Paul Benson, for appellee.
    June 2, 1908 :
   Opinion by

Mr. Justice Elkin,

This is a bill in equity to restrain the respondent traction company from operating cars upon its own lines, or upon the lines of any other street railway company in the city of Erie, and praying that it be required to take up and remove its tracks from certain streets therein designated. The learned court below, after full hearing and careful consideration, granted the prayer of the bill and entered a decree requiring the respondent to take up and remove its tracks in said city, and enjoined it from using the tracks of the Erie Electric Motor Company for the purpose of securing an entrance to the city.

The facts upon which the bill was sustained and the decree entered were briefly as follows: The Erie Transit Company several years ago obtained municipal consent to lay its tracks on certain streets in the city of Erie, upon the conditions and subject to the regulations provided by ordinance. One of the precedent conditions of the grant was, that the transit company shall deposit with the city treasurer the sum of $5,000 as a guarantee that the line or lines upon the streets named in the ordinance should be built within the time specified, and failure to complete the lines within the time worked a forfeiture of the franchise and. all rights thereunder, in which event said sum required to be deposited reverted to the city as liquidated damages. The ordinance contained many other conditions, and provided for regulation in the operation of the line when complete. The transit company became involved financially, and upon judgments obtained against it executions were issued and all the rights, privileges, franchises and property of said company were sold to persons who subsequently organized the respondent traction company, which became the successor of the former insolvent transit company. The learned court below, sitting as a chancellor, has found all the material facts upon which the rights of the companies depend, concisely and paragraphically, as required by the rules of court, and as a conclusion of law, based upon the facts so found, held that the respondent traction company, by its manifest and continued violations of the conditions upon which' municipal consent was obtained, forfeited all rights under the ordinance, and is now occupying the streets of the city without lawful authority. The learned counsel for appellant does not seriously contend that there is any reversible error in the findings of fact or conclusions of law on this branch of the case. It is urged, however, with much force and ability, that even conceding the correctness of the conclusions reached by the chancellor, there is nothing in the situation- to prevent the respondent traction company from entering into a contract with the Electric Motor Company, another street railway whose tracks are laid on certain streets in said city, with municipal consent not questioned, by means of which the cars of the respondent company are permitted to be run over the tracks of the motor company. It is argued that inasmuch as the motor company had a valid ordinance to operate its cars on the streets of the city, it could enter into contractual relations with another street railway company, not having municipal consent, to use its tracks for the operation of the cars of the railway company. In other words, that two railway companies have the right to enter into a contract for the joint use of the tracks of one without municipal consent, and this is the question pressed here. The argument is based on sec. 9, art. 11 of the constitution, which provides that “No street passenger railway shall be constructed within the limits of any city, borough or district, without the consent of its local authorities.” It is contended that the inhibition of the constitution is aimed at the construction, and not the operation, of a street railway, and, if the question here depended solely upon this constitutional requirement, we are inclined to think there would be some force in this position. A constitution only deals with general conditions, and in no proper sense should questions of detail be included in the organic law. No doubt the intention of the framers of the constitution was only to announce the general principle that street railways should not be constructed within cities or boroughs without municipal consent. This was intended as a safeguard to the rights of municipalities against the encroachment of companies organized to construct street railways in the first instance, and it is a very wise provision, because it would be intolerable for municipalities to be invaded by a public service corporation of this character, so closely connected with the everyday life of their people, without having anything to say about it. It may be the purpose of the constitution was to protect municipalities from such invasion in the construction of lines of street railway, leaving .all question of detail as to the operation of the lines when constructed to the municipalities to deal with. However, it does not follow that, because the constitution only deals with the construction of street railways, that municipalities are limited in the exercise of municipal functions to their construction. Indeed, the regulation of the operation of street railways is more important to the municipality day by day than their construction. Apart from any constitutional authority, and independent of any such limitations and requirements, municipalities have the power to impose reasonable regulations upon street railway companies in the operation of their lines under ordinance. It seems to necessarily follow that a grant to a street railway company to operate its own lines on certain streets and subject to certain conditions and regulations does not carry with it the right of the company obtaining such franchise to permit other companies to come into the city and use its tracks without municipal consent and against municipal protest. "We agree that as between the companies themselves, so far as the private rights of the corporations may be involved, there is no reason why a contractual relation should not exist for the use, enjoyment and occupation of the property of either corporation by the other. A very different question arises when the rights of the municipalities are involved. No matter what contracts may be made by corporations as between themselves, and as only private corporate rights may be concerned, no such contract is binding upon a municipality without its consent. The respondent company needs one thing more to entitle it to the use of the streets in the city of Erie, and that is municipal consent. It had municipal consent once, lost it by failure to perform the conditions imposed, and it cannot now secure by indirection what it lost by nonperformance of precedent and subsequent conditions.

The question here concerns the use of the streets of the city of Erie, and it has the right to raise the question in this proceeding.

Decree affirmed at the cost of appellant.


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

      Railroads — Private grade crossing — Public road — Merger of private road in public road — Extinguishment of private road — Estoppel.
    Where an owner of a private road and grade crossing over a rail- ' road of .five tracks with 300 trains passing daily joins in proceedings to establish and lay out a public road, embracing the private right of way and grade crossing within its limits, and the enjoyment of which public road cannot be separated from the enjoyment of the private right of way and grade crossing, the conduct of such owner may be regarded as having operated to have extinguished his easement altogether; and if the public road is thereafter vacated by an arrangement between the public authorities and the railroad company, and an underground passageway substituted therefor, the owner and those claiming by descent from him have no standing to maintain the- continued existence of, the private road and grade crossing.
    In such a case, where a son of the owner testifies that his father’s name had- been signed to the petition for the public road by another son, who had done some business for the father, and the record shows that due notice had been given to the landowners, and that the jury of view had tried to settle with them by securing releases, and there is nothing to show that the owner objected to the proceedings or repudiated them, the court is justified in finding that the owner either participated in the proceedings or acquiesced in them, and that he was estopped thereafter from claiming the continued existence of the private right of way over the railroad.
    Grade crossings are constant perils not only to those using them, but to those upon trains passing over them, liable to be wrecked by collisions. Such crossings whether private or public, ought in all cases to be done away with, and equity will protect a right to use them only when such right is so clear that a chancellor must recognize it. No class of cases calls more strongly for the application of the rule that all doubtful questions must be resolved against an injunction.
    Argued May 5, 1908.
    Appeal, No. 35, Oct. T., 1908, by plaintiffs, from decree of G. P. No. 1, Allegheny Co., March Term, 1907, No. 922, dismissing bill in equity in case of Catharine McKinney et al. v. The Pennsylvania Railroad Company.
    Before Fell, Brown, Mestrezat, Elkin and Stewart, JJ. .
    Affirmed.

      Bill in equity for an injunction. Before Carnahan, J., specially presiding.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Donald Thompson and George H. Galvert, of Elalcely c& Galvert, with them John Rebman, Jr., for appellants.
    In the case at bar, the railroad, as part payment for their grant, expressly agreed to furnish a crossing for Robert McKinney and his heirs, and a reference to the deed shows that this was mentioned as a part consideration thereof. If they now wish to rescind their agreement and obstruct the crossing, then they are remitted to their right of eminent domain, and must proceed in that manner, giving due compensation to the landowner for his property taken: Semple v. R. R. Co., 172 Pa. 369; Daley v. Iselin, 218 Pa. 515; Hall v. Ry. Co., 168 Pa. 64; Kraeer v. R. R. Co., 218 Pa. 569; U. S. Pipe Line Co. v. R. R. Co., 42 L. R. A. 572; Morrison v. Ry. Co., 117 Iowa, 587 (91 N. W. Repr. 793); Mt. Pleasant Coal Co. v. R. R. Co., 200 Pa. 434; Neff v. Penna. R. R. Co., 202 Pa. 371; Kaul v. Weed, 203 Pa. 586.
    The location of the public road over the site of the crossing did not affect the complainants’ private right therein : Hays v. Lynn, 7 Watts, 524; Moore v. Patterson, 28 Pa. 505; American Underwriters’ Assn. v. George, 97 Pa. 238; B. & O. Employees’ Relief Assn. v. Post, 122 Pa. 579; Hays v. Hays, 179 Pa. 277.
    The doctrine of extinguishment of the private right of way by estoppel and increase of burden has no application in this case: Wimbledon, etc., Commons Conservators v. Dixon, L. R. 1 Ch. Div. 366; Baxendale v. McMurray, L. R. 2 Ch. App. Cases, 790; Griffin’s App., 109 Pa. 150; Weiss v. South Bethlehem Boro., 136 Pa. 294; Frankford, etc., Pass. Ry. Co. v. Phila., 175 Pa. 120; Com. v. R. R. Co., 135 Pa. 256; Bellefield Ave., 2 Pa. Superior Ct. 148; Brooklyn Street, 118 Pa. 640; Forbes Street, 70 Pa. 125.
    ' The construction of another means of crossing, even with the knowledge of the heirs of Robert McKinney, and no protest on their part, did not affect their right to the private way : Dovaston v. Payne, 2 Smith’s Leading Cases, *142; Melon Street, 182 Pa. 397; Paul v. Carver, 24 Pa. 207; Carroll v. Asbury, 28 Pa. Superior Ct. 354; Black v. Ry. Co., 34 Pa. Superior Ct. 416; Central Trust Co. v. Hennen, 90 Fed. Repr. 593; In re Board of Education, 24 App. Div. 117; Mitchell v. Einstein, 105 App. Div. 413.
    The dangers of a grade crossing have no force in the determination of the issue presented here: Kenny v. Ry. Co., 208 Pa. 30.

      James 8. Crawford, with him Patterson, Sterrett <& Acheson, for appellee.
    The plaintiffs have no right, title or interest in the crossing: Huff v. McCauley, 53 Pa. 206.
    The right or privilege, if any, in favor of Robert McKinney, by reason of the deed, agreement and actual construction of the crossing by the railroad company, was, as to the land not conveyed by him, not more than a personal revocable license, which would have died with him, had it not become extinguished in his lifetime: Baldwin v. Taylor, 166 Pa. 507.
    Whatever privilege or license Robert McKinney did have to cross the land not granted by him, as well as any easement he may have had over the land granted, was merged, abandoned and extinguished after the road proceedings at No. 3, September sessions, 1884: Burton’s App., 93 Pa. 214; Louchheim v. Davies, 148 Pa. 499; Darlington v. Painter, 7 Pa. 473; Mussey v. Union Wharf Proprietors, 41 Me. 34; Hancock v. Wentworth, 46 Mass. 446; Ballard v. Butler, 30 Me. 94.
    Until plaintiffs’ rights are established at law, they are not entitled to invoke relief in equity: Rhea v. Forsyth, 37 Pa. 503; King v. McCully, 38 Pa. 76; Washburn’s App., 105 Pa. 480; Cortelyou’s App., 102 Pa. 576; Backus’s App., 58 Pa. 186; Ballou v. March, 133 Pa. 64; Grubb’s App., 90 Pa. 228.
    Plaintiffs, having stood by in silence while the defendant expended large sums of money for the very purpose of eliminating this crossing, are now estopped: Morgan v. R. R. Co., 96 U. S. 716; Chapman v. Chapman, 59 Pa. 214; Redmond v. Excelsior Sav. Fund & Loan Assn., 194 Pa. 643; Arnold v. Cornman, 50 Pa. 361.
    Where more harm will result to the defendant, and to the public, than benefit to the plaintiff, a chancellor will not interfere: Jones v. R. R. Co., 11 Pa. Superior Ct. 202; Keeling v. Ry. Co., 205 Pa. 31; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286; Heilman v. Ry. Co., 175 Pa. 188; Bryner v. Bridge Co., 190 Pa. 617.
    June 2, 1908 :
   Opinion by

Mr. Justice Brown,

This bill was filed to enjoin the appellee from closing an alleged private grade crossing. The court below in its findings of fact none of which are excepted to by the appellants, goes back to the situation in the lifetime of William McKinney, their grandfather, who, in 1850, conveyed to the appellee a strip of land four rods in width for the construction of its railroad. Over this strip there was at that time a private road laid out by McKinney, and, after the construction of the railroad, it was kept open with the consent of the appellee for his use as a means of access to and egress from his property, consisting of several hundred acres of land. In 1851 the appellee constructed a crossing at grade on the line of this private road over its track on the land purchased by it from McKinney, and maintained the same at its own cost and expense continuously until November 7, 1906. From 1855 until November, 1906, this private road and crossing were continually used and traveled over by the general public. William McKinney died in July, 1860. All of his lands were devised to his sons, John and Robert, and the latter, the father of the appellants, became, by deed in proceedings in partition, the owner in fee of the lands adjoining the strip conveyed by his father to the railroad company. On June 12, 1882, Robert conveyed in fee to the appellee a strip of land on the north side of its railroad about 100 feet in width, adjoining that previously conveyed to it by his father, and containing 5.336 acres. In his deed to the appellee he reserved to himself, “ his heirs and assigns forever, the right to have, keep open, use and enjoy a wagon road over and across the Pennsylvania railroad and the premises hereby granted, .... the said road crossing hereby reserved to be constructed by the said railroad company at their own expense, at the grade of the said railroad as constructed.” On the same day the appellee agreed in writing, in consideration of the aforesaid deed to it and in view of the provision or reservation contained therein in reference to the wagon road and railroad crossing, that it would “ construct a road, of the width of fifteen feet, in a good and workmanlike manner, of proper materials, on the location and in the course designated by red dotted lines on the plan hereto attached and made part hereof.” McKinney accepted the road or crossing after it had been so constructed by the railroad company and agreed that his acceptance of it should be “ a full and ample release ” from him to the appellee from all liability by reason of the building to the said road. This road is the road mentioned and provided for in his deed of June 12, 1882, and is the crossing that was in use at the time the railroad was built through the property. In 1886, in pursuance of proceedings instituted in the court of quarter sessions of Allegheny county at September Term, 1884, a public road in Wilkins township, now part of the borough of North JBraddock, was laid out.and opened on the location of the above-mentioned road, wholly including the same and the railroad crossing at grade within its lines. The records of the court of quarter sessions show that the petition for this public road was filed September 27, 1884, and on it appear the names of W. J. McKinney and Robert McKinney as signers thereof. The records further show that the appellee opposed this proceeding. W. J. McKinney was a son of Robert McKinney, and at the hearing of this case in the court below on June 7, 1907, Harvey McKinney, one of the complainants, testified on cross-examination that the name “ Robert McKinney,” appearing on the petition filed in the court of quarter sessions for the laying out of the road, was in the handwriting of W. J. McKinney, adding that his brother William had transacted some business for his father. Robert McKinney died July 18, 1887, leaving to survive him a widow and children, to whom, under the intestate laws, his real estate descended, and they are the plaintiffs in this bill. In November, 1903, the borough of North Braddock, by an ordinance duly passed and approved, entered into a contract with the appellee by which the latter agreed to construct and forever- maintain underneath its tracks a passageway for the use of the public, twenty-five feet wide and properly arched, to be located at Dooker’s Hollow street, in said borough. It also agreed to construct a sewer underneath said arch to connect with a sewer then in process of construction by the said borough. All of these improvements were to be made for the use of the public and at the cost of the railroad company, in consideration of which the borough agreed to vacate 352 feet of the public road or highway laid out by the court of quarter sessions as aforesaid, including the said grade crossing of the highway over the roadbed of the appellee. The appellee made the improvements agreed upon, with the exception of grading a street, at a cost of more than $76,000 for the stone arch alone, and the road or underground passageway was thrown open to the public. Thereupon, on November 6, 1906, the borough passed an ordinance vacating the said public road and grade crossing, and this ordinance was approved on the following day. The railroad company immediately closed the part of the road so vacated, tore up the planks at the crossing and the same has remained closed ever since, the company refusing to restore and reopen it. When the crossing was first made in 1851 there was but one railroad track ; when it was closed it crossed four main tracks and a siding, and 171 passenger trains and 126 freight trains passed over it daily except on Sunday. The foregoing are the material facts as found by the court, and upon which it concluded that the appellants’ bill ought to be dismissed.

While every private right of the appellants will be protected from encroachment by the appellee, the right which, in this proceeding, they allege is being interfered with must clearly appear. Its existence must be free from all doubt. What we are asked to protect is an alleged private right of way upon the roadbed of a railroad company over which 300 trains pass almost daily. The settled policy of the state is humanely against such a crossing, and we shall not be astute to discover error in the legal conclusion of the learned court, following unchallenged findings of fact, that the ancestor of the appellants had parted with the right which they now claim as his heirs.

The fee over which Robert McKinney’s right of way passed was in the appellee by conveyances from him and his father. It resisted the laying out of the public road, which embraced the right of way within its limits. Without the consent of the appellee, and in the face of its opposition, the public road was laid out, increasing the servitude upon its land, and if Robert McKinney co-operated in the effort for the increase of the servitude, the enjoyment of which could not be separated from that of his private right of way, such conduct on his part may be regarded as having operated to extinguish his easement altogether: Washburn on Easements & Servitudes (2d ed.), 627.

If Robert McKinney had signed his name to the petition for the appointment of viewers to lay out the public road and had not objected to its being laid out over his private right of way, doubt could hardly be entertained that he intended that right to be extinguished whenever the public road was actually opened. Iiis name appeared upon the petition, and it was presumptively his signature. The court acted upon it as such in appointing the viewers. A son, one of the appellants, testified that it was in the handwriting of another son, William, now deceased, but under an admission that William had transacted some business for his father. The statement is made by counsel for appellants in their brief of argument that there is not a word in the record to show that Robert McKinney had the least knowledge of the proceeding for the laying out of the public road. This is inconsistent with what appears from the records. The viewers reported that they had met for the discharge of their duties, “ pursuant to legal notice.” Presumptively this means that Robert McKinney had been notified of their meeting. That he knew they had been appointed and that the road as laid out by them would embrace within its limits his private right of way conclusively appear from a part of their report, the correctness of which the appellants have not questioned. It is as follows : “ The undersigned further report that they endeavored to procure from owners of land over which the road passes releases in writing from all claims to damages that may arise from opening the same, and having failed to procure such releases, we report that the benefits to be derived by the landowners from said road passing through their land will exceed the damages, and we annex a plot or draft of road laid out stating the courses and distances and noticing briefly the improvements through which the same passes.” Robert Mckinney was one of the owners of the land over which the road passed, and from him, according to the report of the viewers, they tried to procure a release in writing from all claims to damages. He, therefore, knew exactly what had been done. Under this state of facts it cannot be said that the court below erred in reaching the following legal conclusions: “4. The signing of Robert McKinney’s name to the petition to the court of quarter sessions, at No. 3, September sessions, 1884, by a son who did ‘some’ business for him, cannot but be treated as the act of Robert McKinney himself, in view of the facts, that the court so considered it, that the said road and crossing became a public road and crossing in virtue of said court proceeding, which was based on said petition, that Robert McKinney himself never repudiated it, although he lived more than six months after the order of the court making the road and crossing public property; that no one since, until the hearing in this case, has ever questioned it, and that Harvey McKinney, his son, who now testifies, simply says that the handwriting is not that of his father, but of W. J. McKinney, who did ‘some’ business for his father. We are of opinion that the signing of Robert McKinney’s name to said petition was acquiesced in by, and should be treated as, the act of Robert McKinney.

“ 5. By participating in an act, the purpose and effect of which were to increase the burden of the railroad company, by forcing upon it the responsibility of a public crossing at grade, instead of a mere private crossing at grade, Robert McKinney renounced and abandoned his private easement in said road and crossing and the same was thereby extinguished. There is no question of damages or compensation.

“ 6. The Pennsylvania Railroad Company, in making its contract with the borough of North Braddoclcfor the building of the viaduct and the vacation of the public road and crossing, had good reason to rely upon the proceeding in the court of quarter sessions, at No. 3, September sessions, 1884, as evidence of Robert McKinney’s abandonment of his private easement in said road .and crossing . and the heirs of Robert McKinney should not, at this late day, be heard to deny it.

“ 7. The vacation of the public road and Bessemer Grade crossing by the Borough of North Braddock, by ordinance of November 6, 1906, approved by the Burgess, November 7, 1906, was an abandonment of the road and crossing by the proper public authorities, and there being no private easement therein, the railroad company was within its rights when it closed the same as it did.”

The most that can be said of appellants’ claim to an existing private right of way over the roadbed of the appellee, is that it is involved in doubt, and for this reason alone the bill ought to have been dismissed. Grade crossings are constant perils not only to those using them, but to those upon trains passing over them, liable to be wrecked by collisions. Such crossings, whether private or public, ought in all cases to be done away with, and equity will protect a right to use them only when such right is so clear that a chancellor must recognize it. No class of cases calls more strongly for the application of the rule that all doubtful questions must be resolved against an injunction.

Appeal dismissed and decree affirmed at appellants’ costs.


text:
    Robinson, Appellant, v. Jones.

      Wills — Devise—Survivorship—Death of testator — Fee simple estate.

    Where there is a devise of a fee simple absolute in the first instance and the gift is immediate, words of survivorship will be referred to the death of the testator and not to death generally, whenever it may occur. The first taker is entitled to the benefit of every implication and his estate will not be cut down unless the intention to do so clearly appears.
    Testator devised the residue of his estate to his three children, share and share alike, and further directed as follows: “in case any one or more of my last named children — wishes her, or his or their money out of said estate, it is my will that they choose three disinterested persons to appraise said estate at cash value. It is my will and desire that if either — shall die without a lawful heir, her or his or their share of the estate to fall to the last named heir or heirs.” Held, that the children took an estate in fee simple.
    Submitted May 18, 1908.
    Appeal, No. 144, Jan. T., 1908, by plaintiff, from judgment from C. P. Lancaster Co., Dec, T., 1907, No. 23, on case stated in suit of George W. Robinson v. Howard Jones.
    Before Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Case stated to' determine the marketable title to real estate. Before Hassler, J.
    The opinion of the Supreme Court states the case.-

      Error assigned was in entering judgment for defendant on the case stated.
    IF. TJ. Ilensel, for appellant.

      M. G. Sclmffer, for appellee.
    June 2, 1908 :
   Per Curiam,

There was no error in holding that the testator’s children took estates in fee under the following clause in his will: “ I give, bequeath and devise all the rest, residue and remainder of my real and personal estate to my other three children, viz. : Elizabeth Miller, Sarah Jane Miller and Joseph 'P. Miller, equally, share and share alike. In case any one or more of my last named children — wishes her, or his or their money out of said estate, it is my will that they choose three disinterested persons to appraise said estate at cash value. It is my will and desire that if either — shall die without a lawful heir, her or his or their share of the estate to fall to the last named heir or heirs.” Where there is a devise of a fee simple absolute in the first instance and the gift is immediate, words of survivor-ship will be referred to the death of the testator and not to death generally, whenever it may occur. The first taker is entitled to the benefit of every implication and his estate will not be cut down unless the intention to do so clearly appears : Mickley’s Appeal, 92 Pa. 514; Mitchell v. Railway Co., 165 Pa. 645; Richards v. Bentz, 212 Pa. 93. Moreover, the direction as to an appraisement in the event that any of his children should desire to convert his share into money indicates an intention that their estates shall be absolute.

The judgment is affirmed.


author: Me. Justice Brown,

text:
    Kaufmann, Appellant, v. Kaufmann.

      Partnership — Purchase of deceased partner’s interest — Appraisement of value of interest — Equity—Pleading—Demurrer.
    Where articles of copartnership provide that in ease of the death of one of the partners, the survivors shall have the option to purchase the deceased partner's interest at a valuation to be ascertained in a manner specifically set forth in the articles, a court of equity has no power to change the method of valuation merely because the good will of the business has enormously increased in value since the date of the articles, and because the method of valuation therein prescribed would lead to inequitable results.
    Where articles of copartnership provide that surviving partners shall have the option to purchase and take over the interest of a deceased partner in a manner specified, and, upon the death of one of the partners, the surviving partners take over the deceased's interest in the way ■provided by the articles, a demurrer to a bill in equity charging them with having arbitrarily, and without right and unjustly seized upon the interest of the deceased, does not admit any illegal conduct on the part of the defendants, inasmuch as the averment in the bill is but an inference on the part of the plaintiffs that the defendants had acted illegally.
    A demurrer admits the facts fairly pleaded, but it does not admit argumentative conclusions or doubtful inferences from undisputed facts.

      Partnership — Participation in profits — Contribution of capital — Compensation for services.

    A mere participation in the profits of a business will not make the parties partners inter sese, whatever it may do as to third persons unless they so intended.
    A share in the profits of a business as a compensation for services does not constitute the person receiving such share a partner in the business.
    Where a partnership, consisting of four persons, enters into an agreement in writing with one of its employees, by which the latter is to continue in its employment, and is to receive “-as salary for each and every year ” an amount equal to a certain percentage of the net profits of the business, and the employee is also to deposit a sum stated with the firm which by the express terms of the agreement is not to be a contribution to capital, and is to be returned to him on the happening of certain events, the employee does not by such an agreement become a partner in the business.
    Where a bill in equity attempts to establish a partnership- among the defendants, and the bill charges that certain of the defendants had made advances to the business in the nature of contribution to capital, a demurrer to the bill does not admit the truth of such an averment, where it appears from the papers annexed to the bill that the moneys contributed were to be mere deposits, and not contributions to the capital.
    Argued Feb,. 3, 1908.
    Appeal, No. 213, Oct. T., 1907, by-plaintiff, from decree of C. P. No. 1, Allegheny Co., March T., 1907, No. 211, dismissing bill in equity in case of Augusta Kaufmann, Executrix, and Alfred D. Kaufmann and Raymond M. Kaufmann, Executors of the last Will and Testament of Jacob Kaufmann, deceased, v. Isaac Kaufmann et al., individually and as partners who survived Jacob Kaufmann, deceased, late partners as Kaufmann Brothers.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Macearlane, J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was in sustaining the demurrer and dismissing the bill.

      D. T. Watson and John G. Johnson, with them John M. Freeman, for appellants.
    The demurrer admitted all the material facts of the bill to be true: Bussier v. Weekey, 4 Pa. Superior Ct. 69; Philadelphia v. Gas Works, 12 W. N. C. 477; Angle v. Chicago, etc., Ry. Co., 151 U. S. 1 (14 Sup. Ct. Repr. 240); Bitting’s App., 105 Pa. 517; Henry v. Black, 210 Pa. 245; United States v. Des Moines Nav., etc., Co., 142 U. S. 510 (12 Sup. Ct. Repr. 308).
    On the death of Jacob Kaufmann the title to his one-fourth interest in Kaufmann Brothers vested in his executors, and it is only through them that Isaac, Morris and Henry can procure title to the same: Bungard v. Miller, 5 Sadler, 122; Edwards v. Hoopes, 2 Wharton, 420; De Haven v. Anjer, 4 Sadler, 183; Ex parte Wood, L. R. 10 Ch. Div. 554.
    The agreement of 1897 (even if it remains unchanged by the seven agreements of 1903 and 1905) did not vest in Isaac, Morris and Henry on Jacob’s death his, Jacob’s, interest in the firm of Kaufmann Brothers, nor under said agreement is it obligatory upon the executors of Jacob to sell said interest on the terms set forth in the 13th and 14th paragraphs to Isaac, Morris and Henry : Maryland v. R. R. Co., 89 U. S. 105; Frazier v. Monroe, 72 Pa. 166.
    The agreements of 1903 and 1905 under the facts alleged in the bill created a new partnership and dissolved the old partnership of Kaufmann Brothers and, therefore, the provisions of articles 13 and 14 of the agreement of 1897 are no longer binding: Wessels v. Weiss, 166 Pa. 490; Scott v. Kennedy, 201 Pa. 462; Poundstone v. Hamburger, 139 Pa. 319.
    The present good, will of the firm of Kaufmann Brothers not being within the contemplation of the partners when the agreement of 1897 was made, and not being included within its provisions, is, under the averments of the bill, owned, one-fourth by Jacob’s executors, and they are not bound to sell his interest in it valued as provided in the 13th paragraph of the 1897 agreement: Mechanics’ Bank of Alexandria v. Lynn, 26 U. S. 376; McCarty v. Kyle, 4 Cold. (Tenn.) 348; Flannagan’s Est., 10 Kulp, 179.
    If the parties agree upon the sort of arrangement or relation in fact which the law terms a partnership, they are partners even though they expressly declare in the articles that they are not partners: Spaulding v. Stubbings, 86 Wis. 255 (56 N. W. Repr. 469); Poundstone v. Hamburger, 139 Pa. 319; Lintner v. Millikin, 47 Ill. 178; Chapman v. Hughes, 104 Cal. 302; Loomis v. Marshall, 12 Conn. 69; Beecher v. Bush, 45 Mich. 188; Webster v. Clark, 34 Fla. 637 (16 So. Repr. 601); Jones v. Davies, 60 Kan. 309; Adam v. Newbigging, L. R. 13 App. Cas. 308; Moore v. Davies, L. R. 11 Ch. D. 261.
    "Where a servant who shares in the profits of the firm has also contributed part of the capital of the business, this tends strongly to show that he is interested in the partnership as a principal: Lindley on Partnership, page 44; Fougner v. Bank, 141 Ill. 124 (30 N. E. Repr. 442); Hackett v. Stanley, 115 N. Y. 625 (22 N. E. Repr. 745).
    Parties need not agree to share losses in order to constitute a partnership: Reade v. Bentley, 4 Kay & J. 656; Fougner v. Bank, 141 Ill. 124 (30 N. E. Repr. 442); Bond v. Pittard, 3 M. & W. 357; Bucknam v. Barnum, 15 Conn. 67; Kayser v. Maugham, 8 Colo. 232, 237 (6 Pac. Repr. 803); Brigham v. Dana, 29 Vt. 1, 9; Ex parte Langdale, 18 Ves. 300.

      W. B. Rodgers and Samuel Dickson, with them Joseph Stadtfeld, for appellees.
    The agreements of 1903 and 1905 are employment contracts and did not create a copartnership between the parties thereto, nor change, supply or supersede the agreement of 1897. ' The deposits of money did not create a copartnership : Hart v. Kelley, 83 Pa. 286; Gill v. Kuhn, 6 S. & R. 333.
    Compensation based on profits does not create a partnership: Edwards v. Tracy, 62 Pa. 374; Hazard v. Hazard, 1 Story, 371; Gill v. Kuhn, 6 S. & R. 333; Walker v. Tupper, 152 Pa. 1; Heckert v. Fegely, 6 W. & S. 139.
    The agreement of 1903 and 1905 did not supersede the agreement of 1897: Featherstonhaugh v. Fenwick, 17 Vesey Jr. 298.
    The agreement of 1897 was not abrogated in any respect by the subsequent growth and development of the business: Marble Co. v. Ripley, 77 U. S. 339; Sullivan v. Jacob, 1 Molloy, 472.
    The agreement of 1897 is in force, and, under the 13th and 14th paragraphs thereof, upon the death of Jacob, his partnership interest vested in the surviving partners, and the estate thereupon became entitled to payment in the manner and on the terms fixed in said agreement, which payment the bill does not charge was not offered with security, as agreed upon, but, on the contrary, the whole structure of the bill admits that this was done. The demurrer admits all facts properly pleaded, but it does not admit conclusions drawn by the pleader from the facts stated by him: Dillon v. Barnard, 88 U. S. 430; Seitz v. Refrigerating Co., 141 U. S. 510 (12 Sup. Ct. Repr. 46).
    June 23, 1908:
   Opinion by

Me. Justice Brown,

If this bill had been filed against Isaac, Morris and Henry Kaufmann alone, as surviving partners of the firm of Kaufmann Brothers, with no reference to the contracts entered into by that firm with the seven other appellees, it could hardly be seriously contended that the articles of copartnership of the firm of Kaufmann Brothers, attached to and to be regarded as part of the bill, would not be conclusive of the right of the surviving partners to settle with the personal representatives of their deceased partner in the mode therein described.

Jacob, Isaac, Morris and Henry Kaufmann had, for some years prior to 1897, been engaged in business as partners, dealing “ chiefly in men’s wear and but slightly in other branches.” Up to November 21, 1897, there was no written agreement between them, but on that day they entered into written articles of agreement, stating in detail the terms of their copartnership. The thirteenth clause of the said agreement, to evade which this bill was filed, is as follows: “ In the event of the death of any one or more of said copartners, the deceased party’s estate shall not continue to retain the decedent’s partnership interest, but the said interest shall, within thirty days after such death, be considered as absolutely withdrawn and severed from the business of said firm, and the surviving partners shall purchase all the right, title and interest therein of the decedent for a sum equal to his share of the net assets of the firm, at the inventory last preceding the said death, minus such amounts as he may have drawn in cash or merchandise and plus such amounts as he may have contributed over and above his share, as set forth in article two of this agreement, from the time of his death back to the last preceding inventory; and further plus an amount equal to ten per cent (10) of the aforesaid decedent’s partnership interest, in consideration of the decedent’s part of the good will of this firm. Provided, however, that the said last preceding inventory shows the net profits of this firm, for the one year preceding such inventory, to have been not less than ten per cent (10) of the said total capital, as set forth in the second section of this agreement; and in case such profits shall have been less than 10 per cent, as last aforesaid, then the decedent’s estate shall be entitled to and receive only one hundred ($100) dollars in consideration for the décedent’s part of the good will of the firm.” The fourteenth clause provides how payment is to be made by the surviving partners for their purchase of a deceased partner’s interest in the business. The terms of payment on such a purchase differ from those on a purchase of the interest of a withdrawing or retiring member of the firm.

The appellants do not aver that the three surviving partners of the firm of Kaufmann Brothers — Isaac, Morris and Henry — have refused to settle with them and account in accordance with the written articles of copartnership. On the contrary, the admission in the tenth paragraph of the bill is that these three appellees concede the right of the appellants to receive from them $288,750 as the value of Jacob’s fourth interest'in the partnership. There is no averment that this sum is not all that ought to be paid for that interest under the thirteenth clause of the agreement, which provides how its value is to be ascertained; but a mere claim is made that Jacob’s interest in the partnership was worth more at the time of his death, that it was then “ fairly worth $1,750,000,” as the good will of the firm had largely increased from 1897, and, at the time of his death, “ was worth the sum of at least $6,000,000.” According to this, the assets of the firm, exclusive of the good will, were worth, at the time Jacob died, $1,000,000, and in the sum of $288,750, which the three surviving partners are willing to pay the appellants, there is included an item of $38,750 for the interest of the deceased in the good will; and this is all the appellees are required to pay for it, if its value was arrived at in the way pointed out by the deceased partner himself. There is no averment that the value was not so arrived at, and if Jacob’s estate, in the judgment of those now representing it, is not getting all that his interest in the good will may be actually worth, it is, as the learned judge below aptly said, “ because he so agreed.”

The bill recites at length the growth and increase of the business of the firm of Kaufmann Brothers from 1897 to Jacob’s death in 1905, and, in the oral argument of counsel for appellants, this was given as a reason why Jacob’s estate should not be held to the agreement made under different business conditions. There is no averment that, as the business grew and expanded, he ever asked for a change or modification of the clause providing how his interest should pass to his brothers in the event of his death. The agreement remained unchanged and unmodified, just as it was written, until he died, and it became operative. The business grew and expanded, as the partners manifestly hoped when they put their compact of co-partnership into writing, but because it may have grown even beyond their expectations the terms of their partnership were not changed nor their rights as partners affected. Until they themselves changed their agreement it continued to be the law of their partnership existence, though the number of their delivery wagons increased from ten, in 1897, to fifty-four, in 1905, their employees in the shipping room from six to twenty, their total floor space from 200,388 feet to 465,400, and their business was divided into fifty-two departments at the time of Jacob’s death. The increase of the business of the firm went on under the eyes of each of the partners, but the partnership which had existed prior to 1897, and which they continued by their agreement of November 24th of that year, continued until Jacob’s death, unchanged by any other agreement between them. Though they made no change in their written agreement, the court below was asked by this bill to change it, or to hold that it ought not now, in equity, to be regarded as binding.

The thirteenth clause of the agreement is so plain that it would be the work of supererogation to demonstrate that, upon the death of Jacob, his one-fourth interest in the firm vested in the survivors, subject to their paying for the same a sum-to be ascertained in the mode fixed by the parties. This clause was as fair to each of the four parties as it was to the other three, and we repeat as1 to it what we said of another agreement between partners, stipulating that, on the death of one the survivor should have the right to purchase his interest in the business at a valuation provided for by them in their agreement: It was a value fixed irrespectively of the actual value, which would change from year to year, and which they considered it just that the survivor should pay and the estate of his deceased partner receive. Neither could know to whom the option to purchase would fall; and if, during the running of the agreement, because of large additions or deductions, the price might become inequitable, either party had the remedy in his own hands, as without his assent they could not be made. The agreement was in force over eleven years before the death of one of the parties. ... We are left then to the construction of the agreement as it is written. Considering the condition of the property at the time, the mutual interest of the parties and the end they had in view, their desire to make certain the price at which the survivor could take and their knowledge that the cost would not be a criterion of the value, we think that they meant to say that the valuation of $25,000 was to remain, subject only to the conditions which they imposed, the fixed value for the purpose of the agreement. "What is of much more and of primary importance in intérpretation, we find that this is what they did say. We see no want of equity in the agreement, nor any hardship to result from' its performance which should lead a chancellor to deny the prayer for specific performance. There was no inequality of terms; it applied to both alike, and the advantage to be gained by the survivor was not more certain than that which would result to the estate of the deceased : ” Bohr bach er’s Estate, 168 Pa. 158.

There is an averment in the bill that the appellees — Isaac, Morris and Henry Kaufmann — “ have arbitrarily and without right and unjustly and unfairly seized upon the said one fourth interest of the said Jacob Kaufmann in the said*firm, and forcibly seek to retain possession thereof as the sole absolute owners thereof; ” and it is contended that the demurrer admits this to be true. This averment is but an inference on the part of the appellants that Isaac, Morris and Henry have arbitrarily, without right, and unjustly and unfairly, taken Jacob’s one-fourth interest in the firm. The thirteenth clause of the agreement provides how they may take it, and the averment is not that they have taken it in violation of that clause. While all facts fairly pleaded are admitted by a demurrer, it does not admit argumentative conclusions or doubtful inferences from undisputed facts: Getty et al. v. Pennsylvania Institution for the Instruction of the Blind, 194 Pa. 511. “ The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instrument, and the obligations they imposed upon the corporation and the trustees, and the rights they conferred upon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal inference, conclusions of law upon the construction of[the in denture, andaré open to contention, a copy of the instrument itself being annexed to the bill, and, therefore, before the court for inspection. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument, however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms; nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer. This is not the case of a bill to set aside or reform the contract as not expressing the actual intention of the parties. It is a case where the contention arises solely upon the meaning of the indenture in its bearing upon the contract, and that must be ascertained by applying to its language the ordinary rules of interpretation: ” Dillon v. Barnard, 21 Wallace, 430.

In 1903, Kaufmann Brothers entered into a contract with each of the following persons, who were then in their employ and all of whom are made defendants in this bill: Morris Baer, Julius Baer, Max L. Blum, Ludwig Kaufmann, Theodore Kaufmann, Nathan Kaufmann and Hugo Baum. The contracts are identical, except as to the percentages to be received by each employee from the profits of the business, the duties to be performed and the amount to be deposited by him with the firm. The one entered into with Ludwig Kaufmann is annexed to and made part of the bill. Each of these contracts was supplemented by another, entered into in May, 1905. The supplements are identical, except as to the percentages to be received and the amounts to be deposited. The one entered into with Ludwig Kaufmann is also attached to and made part of the bill.

The averment in the sixth paragraph of the bill is that after the “ seven agreements of 1903 were duly made, executed and delivered, the business of Kaufmann Brothers was continued and carried on by the said four Kaufmanns, and the seven named individuals, .... that the said seven agreements of 1903 and 1905 changed, supplied and superseded the original agreement of 1897, .... that by the said agreements of 1903 and 1905, the old partnership of Kaufmann Brothers was dissolved and a new partnership with additional members and added restrictions and provisions was organized.” Another averment in the bill is that. “ each one of the said seven individuals agreed to advance, and did advance, to the capital of the firm ” a stated sum, varying from $35,250, advanced by Julius Baer and Nathan Kaufmann, respectively, to $120,000, advanced by Morris Baer. If these averments as to contributions to the capital of the firm are simply what the complainants regard as the effect of the seven contracts, the demurrer does not admit them to be true, and we must, therefore, turn to the contracts themselves to interpret them and declare what their effect was on the partnership of Kaufmann Brothers.

It is first to be noted that each contract is between “ Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, parties doing business as Kaufmann Brothers,’’. of the first part, and one of their employees, of the second part, and the very first clause shows that the party of the second part is to continue “ to give his services to the parties of the first part,” to the Kaufmann Brothers — “ in the same capacity as heretofore ” — an employee. In consideration of these services the agreement proceeds in the second clause to provide what the party of the second part shall receive from the party of the first part. It is not a participation in the assets and business of the firm of Kaufmann Brothers, but payment by them to each of said parties of a sum “ as salary for each and every year ” equal to a certain percentage of the net profits of “ their business ” — Kaufmann Brothers’ business — “ the parties of the first part.” ' The agreement then describes in detail how the percentage of the profits is to be ascertained. With these details we need not burden this opinion. Nothing in the provision that each of the seven employees is to receive for his services a certain proportion of the net profits constitutes him a partner as to Kaufmann Brothers themselves, in whose services he had been and in whose services he was to continue as an employee. “ That there is a distinction between partnership as respects the public, and partnership as respects the parties, is an elementary principle of this branch of the law, so plain that its only difficulty is in its application to particular cases. Where the agreement is silent, there is often room for doubt, as to the precise relation in which the parties stand to each other, and then a joint interest in the stock is considered a discriminative circumstance; but where they explicitly declare there is to be no partnership, it is unnecessary to ‘inquire further; for among themselves, the law permits them to determine their respective interests by their own stipulations; it is a matter with which third persons have no concern. . . . The contracts of men are laws prescribed by themselves to govern their transactions with each other, which, as long as they interfere not with morality, or with the interests of third persons, are of conclusive obligation on the immediate parties to them: ” Gill v. Kuhn, 6 S. & R. 333. “ A mere participation in the profits will not make the parties partners inter sese, whatever it may do as to third persons, unless they so intend it. If A. agrees to give B. one-third of the profits of a particular transaction in business, for his labor and services therein, that may make both liable to third persons as partners ; but not as between themselves: ” Hazard v. Hazard, 1 Story, 371. “ While a right to share in the profits may constitute a partner, a commission equal to such a share, as a compensation for services, does not: Ex parte Hamper, 17 Ves. 404; Ex parte Watson, 19 Ves. 459; Miller v. Bartlet, 15 S. & R. 137; Dunham v. Rogers, 1 Barr, 255. That this exception to the general rule is founded upon a distinction without any difference has been generally conceded, and it is used by Baron Bramwell in Bullen v. Sharp with great force as an argument against the soundness of the rule itself. It is entirely too late now to question either the rule or the exception. We are bound to stand super antiquas vias, by our own decided cases; for nothing is truer, or more important, than the maxim: Omnia innovatio plus novitate perturbat, quam utilitate prodest. The interest of Tracy, Benton & Go. in the profits being, by the terms of the agreement, ‘ a commission upon the sale of the merchandise consigned to them, equal to one-half of the net profits upon such sale,’ did not make them partners, nor attach to them either the rights or responsibilities of such partners: ” Edwards v. Tracy, 62 Pa. 374. “ Parties may so act, or hold themselves out to the public, that the law will hold them answerable as partners, although as between themselves, they are not partners. But this is where the rights of third parties are involved. As between the parties to the agreement, does the contract constitute a partnership %: ” Krall v. Forney, 182 Pa. 6.

•Though the averment in the bill is that each of the seven individuals agreed to advance, and did advance, certain specific sums to the capital of the firm, the truth is that no sum was to be advanced by any one of them to the capital of the firm, as clearly appears from the unmistakable terms of each agreement. The demurrer admits the truth of what actually appears therein, but not the argumentative • conclusion in the bill of a contribution to capital, if, as a matter of fact, no such contribution was intended by said parties. Instead of making any contribution to the capital of the firm, the agreement is that each, of the parties of the second part shall deposit with the parties of the first part, “Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, partners, doing business as Kaufmann Brothers,” a certain sum of money, “'which sum shall remain on deposit with the parties of the first part; without interest, until the termination of this agreement, when same shall be repaid to the party of the second part, provided, however, that the said deposit shall continue so long only as the net assets of the parties of the first part in the said business shall not fall below the sum of one million fifty thousand ($1,050,000) dollars.” Why this provision as to a deposit was made is not material in this proceeding. It can well be understood that it might have been required by the parties of the first part as an assurance from the party of the second part that he would faithfully comply with his contract; and the provision as to the reduction of the deposit, upon the reduction of the net assets of the firm, may very naturally have been inserted at the instance of the party of the second part for his own protection. But, as stated, the reasons for the insertion of the clause are not material. It is sufficient that it was inserted, requiring but a “ deposit ” from the party of the second part, to be returned at a definite, fixed time, without regard to what may happen to the capital of the parties of the first part. It may be impaired or totally wiped out, but no portion of the deposit made by the party of the second part is to be in any manner impaired, but paid back, dollar for dollar, by the parties of the first part.

In the seventh paragraph of the agreement of 1903 it conclusively appears that the deposit made was not to be a contribution to the capital of Kaufmann Brothers, for it is there provided that in case the parties of the first part shall incorporate their business, the party of the second part shall not receive any portion of the capital stock of the corporation, but a sum of money to include his deposit. The separate identity and existence of Kaufmann Brothers, composed of Jacob, Isaac, Morris and.Henry, are preserved all through the agreements of 1903 and 1905. They avow their right in each agreement, recognized by the party of the second part, to sell out or incorporate their business, and to take in new partners, the provision as to them being “ any male member of the immediate families of any of the parties of the first part may become a partner in the said business, as may also the party of the second part hereto, or any other party whose salary at the date of the execution of this agreement is based on the total profits of said business, to wit: the following persons: Morris Baer, Theodore Kaufmann, Max L. Blum, Hugo Baum, Nathan Kaufmann and Julius Baer.” Instead, then, of creating a new partnership, as is averred in the bill, the clause just quoted is a distinct admission by each of the parties of the second part that the partnership of Kaufman Brothers was to remain unchanged by the agreement of 1903, and that by it he did not become a member of the firm. Immediately following the provision that one-or all of the seven parties named may in the future become members of the firm, is a stipulation that it shall not be binding upon the surviving members of the firm of Kaufmann Brothers who - may purchase the interest of a deceased brother.

Again, even if the agreement of 1903 with Ludwig Kaufmann could be tortured into one creating a new partnership by taking him into the firm of Kaufmann Brothers, by what agreement with him did Morris Baer, Theodore Kaufmann, Max L. Blum, Hugo Ba.um, Nathan Kaufmann and Julius Baer, the other six employees, become his copartners ? If his agreement of 1903 created a new partnership between him and the Kaufmann Brothers, certainly no one else could be admitted into such- a partnership without his agreement and consent, and this is true of the other six.

One of appellants’ averments is, that since the agreement of 1879 was made, the good will of the firm of Kaufmann Brothers has enormouly increased, and was, at the time of Jacob’s death, worth the sum of at least $6,000,000, and that this growth in its value was largely made by the seven supplemental agreements. . If this be so, and the seven employees who were parties to the seven supplemental agreements became, as the appellants aver, partners of Kaufmann Brothers, why do they exclude them from participation in the value of the good will ? While averring that these seven were copartners with Jacob Kaufmann, the appellants, in the same breath, deny their right to an interest in this good will, their claim being that one-fourth of its value — $1,500,000—belongs to them alone.

The primary intent of the agreements of 1903 is the retention of each party of the second part as an employee of the parties of the first part, and all through the agreements there runs the clear intent that such employee shall not become a partner, either by sharing in the profits or by contributing to the capital. Complaint is made by the appellants that, by the agreement of 1903, Jacob’s estate may continue to be tied up by liability to the seven employees, but this is a liability of any deceased partner, and it cannot affect such partner’s distinct agreement as to how his interest in the firm, upon his death, shall pass to his survivors.

Though a most elaborate brief has been submitted by the learned counsel for appellants, the case, after all, is Avithin a narrow compass and absolutely free from doubt and difficulty. The agreements, which are self-interpreting, were made by persons sui juris. The one as to the purchase of a deceased partner’s interest is not an unusual one, and was fair alike to each of the four partners. If the representatives of Jacob are noAv disappointed that they cannot get more than the survivors offer them, the law cannot help them, for it was so written by him in his agreement with them.

The decree sustaining the demurrer to the bill and dismissing the same is affirmed at appellants’ costs.