author: Mr. Justice Potter,

text:
    Collison, Appellant, v. Philadelphia Company.

      Deed — Construction—Interpretation by parties — Evidence.
    1. In construing a doubtful instrument the contemporaneous construction placed upon the instrument by the acts of the parties themselves will be adopted by the courts.
    2. Where the terms of a deed are doubtful the courts will adopt that construction which is most strongly against the grantor and in favor of the grantee.
    3. Where a deed conveying oil and gas with certain rights as to pipe lines, conduits and machinery in or on the grantor’s land, is ambiguous as to whether it includes the right to erect and maintain on the land a pumping station, the court will construe the instrument so as to give such a right to the grantee, if it appears that the latter erected a pumping station on the land and operated it for fourteen years without objection by the grantor.
    Argued Oct. 4, 1911.
    Appeal, No. 12, Oct. T., 1911, by-plaintiff, from judgment of C. P. Westmoreland Co., Feb. Term, 1910, No. 492, on verdict for defendant in case of Thomas A. Collison v. Philadelphia Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Ejectment for land in Franklin township.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in refusing binding instructions for plaintiff.

      Owen S. Cecil, with him Marker & Hollingsworth, for appellant.
    A contract is to be construed in reference to the time when it was made and to contemporaneous circumstances, objects and purposes of the parties: Harton’s Est., 213 Pa. 499; Perry v. Payne, 217 Pa. 252; Thatcher v. W. Chester St. Ry. Co., 35 Pa. Superior Ct. 615.

      January 2, 1912:
    The action of the parties under an instrument and their subsequent course of dealing is the last thing resorted to for determining its meaning: Davis v. Shafer, 50 Fed. Repr. 764; Railroad Co. v. Trimble, 77 U. S. 367; Russell v. Young, 94 Fed. Repr. 45.
    Where there is no ambiguity in the terms of a contract the fact that a party has acted in accordance with a certain construction is not sufficient to make that construction binding upon him in the future: Penna. Co. v. Erie & Pittsburg R. R. Co., 108 Pa. 621; Dougherty v. Nor-wood Boro., 196 Pa. 92; Kane v. Fire Ins. Co., 199 Pa. 205; Sternbergh v. Brock, 225 Pa. 279; Alexander’s App., 20 W. N. C. 283; Lummis v. Devine, 9 Pa. Superior Gt. 349; Hepburn v. Snyder, 3 Pa. 72.

      J ames S. Moorhead, with him John Gates, Jr., and Robert W. Smith, for appellee.
    Courts will not assume to understand the interests of contracting parties better than the parties themselves: Phillips v. Blatchford, 137 Mass. 510.
    A provision capable of two or more meanings should be construed most strongly against him whose undertaking it is: Bole v. Ins. Co., 159 Pa, 53; Gillespie v. Iseman, 210 Pa. 1; McMillin v. Titus, 222 Pa. 500; Connery v. Brooke, 73 Pa. 80.
   Opinion by

Mr. Justice Potter,

The rights of the defendant company in this case are based upon the language of a conveyance executed by Albert F. Dible to J. N. Pew on July 24, 1883. In consideration of the sum of $600, and one-eighth of all oil produced, the grantor conveyed unto the grantee the right to the oil and gas underlying a tract of land consisting of about thirty-five acres. He also conveyed the right to lay down and maintain upon and across said land, pipe lines, conduits and other means of conveyance for oil and gas, and gave the right to transport oil or gas by any means whatever over said tract. In addition, the right was also given to place, erect and maintain upon said tract of land such pipes, tanks and machinery as may be necessary or required by the said second party. The dispute in this case is as to the extent of the right conveyed by this last clause. Clearly the right to erect and maintain such machinery “as may be necessary” was granted; but the question is, “necessary” for what purpose? Appellant contends that such machinery only was authorized as was required in the operation of taking oil and gas from the immediate premises. Or, if it be extended, as seems to have been the intent under the provisions of another clause, to cover the maintenance of a pipe line to transport through the premises oil or gas from other territory, appellant contends that the necessary machinery did not include or contemplate the erection and maintenance on those premises, of a pumping station for the purpose of forcing the gas from other districts or places through this property, and on through the connecting pipe line.

That the language of the grant is indistinct and open to more than one interpretation, can hardly be doubted. That being the case, the trial judge felt that the interpretation placed on the contract at the time, by the parties to it, was of binding force. He says: “Whatever we might think about the proper construction of the instrument made in 1883, if we were called upon to construe that without anything more, we think the action of the interested parties in construing it themselves, is binding, not only upon the parties who construed it, but upon their successors in title.” It appears from the evidence that in the year 1895, a small portion of the tract, containing a little less than half an acre, was fenced off, and within this inclosure was erected a boiler house, a pump house with two gas pumps or compressors therein, a- large water tank, and a storehouse; the whole plant being designed and used for the compression of gas, and for pumping it through a large pipe line. All this seems to have been done by the defendant under claim of right and without objection from Albert F. Dible, who had executed the conveyance under which defendant was acting, and who was the owner of the land when these improvements were made, and who continued as such owner until the year 1909. It was not until then, some fourteen years after, the erection of the structures now complained of, that Mr. Dible conveyed the land to the plaintiff in this case, subject to the rights which he had previously granted to the predecessor in title of the defendant company. It was-this evidence as to the practical construction placed upon the agreement, by the parties to it, and the continued-acquiescence therein, during a period of fourteen years, which led the court below to give binding instructions in favor of the defendant.

We agree with the trial judge that the facts of this case properly called for the application of -the principles set forth in Gillespie v. Iseman, 210 Pa. 1, and in McMillin v. Titus, 222 Pa. 500. Not only was he justified in the conclusion which he reached, by the principle that in case of ambiguity, the contemporaneous construction placed upon the instrument by the acts of the parties is to prevail, but he is also sustained by another well-known principle, which is, that in .such' a case the construction to be adopted is that which-is most strongly against the grantor and in favor of the. grantee. “The words of a document will, in cases of doubt, be construed most strongly against the party using'them, or, as it is sometimes expressed, fortius contra proferentem. This principle has frequently been applied in the case of deeds, including those by way of lease or by way of mortgage:” 17 Am. & Eng. Ency. of Law (2d ed.), 14. In the present case the conveyance of the right to erect machinery would naturally involve the right to protect it by means of a suitable cover or building. As to whether the machinery which was installed by the defendant was such, only as was contemplated in the grant, might very well have been a question of fact for the jury; but that matter is not raised by the assignments of error, and both sides seem to have agreed that the matter was one of con-struction of the terms of the grant, and was to be disposed of as such by the court. ■ With that disposition we agree. The assignments of error are overruled and the judgment is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Fell,

license: Public Domain

text:
    Leechburg Building & Loan Association v. Kinter, Appellant.

      Building and loan associations — Insolvency—Bights of borrower.

    1. The duty of a trustee of an insolvent building and loan association is to wind up the affairs of the association in such a manner as to do equity between it and its creditors and between the stockholders. It is the duty of the trustee to require a borrower to repay what he had actually received with interest, and to allow him after all the debts are paid a pro rata dividend with the nonborrowers on the payments made on his stock.
    2. Where the stockholder of a building and loan association borrows from the association on a mortgage, pledges his stock as collateral security and agrees to pay monthly installments of dues and interest, the payment of dues on stock is not a payment on account of the loan.

      Affidavit of defense — Practice, C. P. — Averments of conclusions.

    3. Averments in an affidavit of defense of conclusions merely based on a misconstruction of writings and wholly inconsistent with the writings, will be disregarded by the court.
    Argued Oct. 4,1911.
    Appeal, No. 51, Oct. T., 1911, by defendants, from order of C. P. Armstrong Co., Dec. T., 1910, No. 35, making absolute, rule for judgment for want of a sufficient affidavit of defense in case of Leechburg Building & Loan Association by C. F. Armstrong, Liquidating Trustee, v. A. O. Kinter and J. D. Pugh.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin,' Stewart and Moschzisker, JJ.
    Affirmed.
    Scire facias sur mortgage.
    Rule for judgment for want of a sufficient affidavit of defense.
    The opinion of the Supreme Court states the facts.

      January 2, 1912:

      Error assigned was order making absolute a rule for judgment for want of a sufficient affidavit of defense.

      W. L. Peart, with him A. L. Ivory and L. S. Roberts, for appellants.
    The affidavit of defense was sufficient: Hemperley v. Tyson, 170 Pa. 385; York Trust Real Estate & Deposit Co. v. Gallatin, 186 Pa. 150; Kurtz v. Campbell, 31 Pa. Superior Ct. 516; Erthal v. Glueck,. 10 Pa. Superior Ct. 402; Haspel v. Moffitt, 32 Pa. Superior Ct. 344; Early’s App., 89 Pa. 411; Strohen v. Loan Assn., 115 Pa. 273.

      Harry B. Wassell, with him Paul S. Ache and Clarence O. Morris, for appellee,
    cited: Strohen v. Saving & Loan Assn., 115 Pa. 273; Twin Cities Nat. B. & L. Assn. v'. Rafale LePore, 17 Pa. C. C. Rep. 426; Haspel v. Moffitt, 32 Pa. Superior Ct. 344; Haspel v. McLaughlin-Lyons, 38 Pa. Superior Ct. 334; Freemansburg B. & L. Assn. v. Watts, 199 Pa. 221.
   Opinion by

Mr. Chief Justice Fell,

This appeal is from an order making absolute a rule for judgment for want of a sufficient affidavit of defense in an action upon a building association mortgage. The mortgage was given in 1903 to secure the payment of the bond of the mortgagor, who was a stockholder of the" association, and was payable in 1913. In 1909 the association became insolvent and was dissolved and a liquidating trustee was appointed who brought this action-. At the time of the execution of the bond and mortgage* the mortgagor assigned ten shares of his stock to the association in trust, to hold the same as collateral security for the payment of the debt, “the value or amount realized from said stock to be appropriated towards the payment of any amount or sum” in which the assignor was indebted or might -thereafter become indebted on account of the principal of the debt or for dues, interest, premiums or fines. - •

Of the numerous grounds of defense set up by the affidavit, but two need be noticed. 1. That as the mortgagor was not in default no action could be maintained on the mortgage until 1913, the time fixed for the payment of the bond. 2. That if the action would lie, the mortgagor was entitled to credit on the mortgage for all payments made on account of his stock.

The insolvency of the building association put an end to its operations as an association and the duty of the trustee was to wind up its affairs in such a manner as to do equity between it and its creditors and between the stockholders. This is distinctly ruled in Strohen v. Franklin Saving Fund & Loan Association, 115 Pa. 273, and the method of adjusting the equities between stockholders is defined in the opinion of the court, to wit: to require a borrower to repay what he had actually received with interest, and to allow him after all the debts are paid, a pro rata dividend with the nonborrowers on the payments made on his stock.

The averment in the affidavit of defense that at the time of the execution and delivery of the bond and mortgage, it was agreed “in the writing as above set forth in the assignment” that all moneys paid as dues on stock were to be applied in payment of the debt, is unsupported by the writing referred to. The agreement is not that the amounts paid as dues on the stock shall be applied in payment of the debt, but only that the value or amount realized from the stock shall be so applied. Since the averment was not of a fact but of a conclusion and not sustained by the writing on which it was based, it was properly disregarded by the court. Equally ineffective to prevent judgment is the averment of an appropriation by the association of the dues paid on the stock to the payment of the bond. It, too, is a conclusion merely, based on a misconstruction of the writings and wholly inconsistent with them and with the whole course of conduct by the parties.

Nothing contained in the. affidavit of defense distinguished the transaction from the ordinary one where a stockholder borrows of a building association on mortgage, pledges his stock as collateral security and agrees to pay monthly installments of dues and interest. In such cases the payment of dues on stock is not a payment on account of the loan: Freemansburg B. & L. Association v. Watts, 199 Pa. 221.

The judgment is affirmed.


author: Per Curiam,

text:
    Wolfe, Appellant, v. Limestone Council No. 373.

      Beneficial associations — Suits against — Equity—Unincorporated association — Parties.
    1. The proper method of suing an unincorporated beneficial association is to institute a suit in equity against some of the members as representing themselves and all others having the same interest, and after judgment, to compel the defendants to see that the treasury of the association pays the claim.
    2. Under the Act of April 28, 1876, P. L. 53, “relieving members of beneficial societies from individual liability for lodge indebtedness,” and providing that “members shall not be individually liable for the payment of periodical or funeral benefits, or other liabilities of the association, and the same shall be payable out of the treasury,” the words “other liabilities” mean all liabilities properly chargeable to the treasury of the society and contemplate obligations in addition to funeral expenses or death benefits.
    3. Where a suit is brought to protect property rights of a beneficial association, and the legal estate in the property taken or injured is vested by the laws of the association in trustees whose duty it is not only to hold the title, but take charge of the property, the suit should be brought in the name of such trustees.
    4. The revocation of a charter of a subordinate body of a beneficial association by the supreme body does not have the effect of vesting in the supreme body the property of the subordinate body, and if the supreme body, after the revocation, reissues the charter to certain of the members only of the subordinate body, it does not give them any ■ right of possession of the property peculiar to themselves and apart from the other members of the subordinate body.

      Argued Oct 4, 1911.
    Appeal, No. 93, Oct. T., 1911, by plaintiff, from order of C. P. Armstrong Co., Dec. T., 1909, No. 56, refusing to take off nonsuit in ease of Dwight Wolfe et al. Limestone Council No. 373, Junior Order United American Mechanics v. Limestone Council No. 373, Order Independent Americans, B. C. Bonner et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass quare clausum fregit et de bonis asportatis by several individuals “in their own behalf and on behalf of all other members of Limestone Council No. 373, Junior Order of United American Mechanics as may hereafter choose to become plaintiffs,” against Limestone Council No. 373, Order of Independent Americans, and seven individuals, named as “members of said council.” Before Patton, J.
    The statement of claim avers that the plaintiff council is an unincorporated beneficial association and that Bouch, Wolfe, and French, are its qualified and acting trustees; that the association was organized November 25, 1889, under a charter from the state council of the Junior Order of the United American Mechanics, and so continued until the latter part of 1904; that on December 30, 1904, the charter of said council was suspended by the state council, from which time the plaintiff council continued under its old by-laws until September 16, 1907, when its charter was reinstated; that on April 15, 1909, and for a long time prior thereto, the plaintiffs were the owners of a certain lot and messuage situate in Washington Township, Washington County, Pa. (describing it), “being the real estate of said Council,” and that they still are the owners of the same; that the property in question was conveyed by deed to the trustees of said defendant council, and had erected thereon a frame building for the use of the council, together with “full and complete furnishings, paraphernalia, books, utensils, etc., all .the property of the plaintiffs, stored and kept in use by the plaintiffs in said lodge room.” That on or about April 21, 1909, the defendants, with force and. arms, and without the consent of the plaintiffs, broke and entered the close of the plaintiffs, and tore down, demolished and carried away the frame building erected thereon, said building being of the value of $1,000, and did take, carry away, destroy, consume or appropriate to their own use the aforesaid furniture and personal property of the plaintiffs to the value of $632.50; that the individuals named as defendants were members of the defendant council, and that said council was an unincorporated beneficial society under the laws of Pennsylvania. An amendment to the statement avers: “That the plaintiffs so owning said lot of ground, lodge building and property aforesaid were in lawful joint possession of the same with the defendants or some of them up until the month of September, 1907, when .... the defendants did unlawfully .... break into and enter the plaintiffs’ close.”
    The admissions and proofs show the following state of facts: That in 1889 a local lodge of the Junior Order ofUnited American Mechanics was organized as a beneficial society under the title of Limestone Council, No. 373; that in 1901 dissensions caused a split in the order, and the lodge in question adhered to the insurgent faction and existed as a local council without affiliation with any regular state organization until August 16, 1902, when it became duly affiliated with the state council of the insurgent branch; that charges were preferred by the regular branch, and on December 28,1904, the charter of the local council was declared forfeited and taken from it by order of the regular state council; that on December 30, 1904, the local council, at a regular meeting and on motion of one of the individual plaintiffs in this case, affiliated itself with the Order of Independent Americans, — that being the name adopted by what had formerly been the insurgent branch of the Junior Order of United American Mechanics; that the local council has since continued its regular work, and through all these changes has maintained its organization as a beneficial society and retained its property for the same social and charitable purposes for which it had been originally acquired; that in the spring of 1907 some eight or nine of its members, of the plaintiffs in this case, made an application to the state council of the Junior Order of United American Mechanics for the reinstatement of the old charter under which the local council had originally operated, and that upon this application the old charter was reissued through a communication dated September 14, 1907; that the men who secured the reissue of the old charter met in the regular lodge room of the local council two or three times in August or September of 1907, but when.they attempted to hold another meeting the door was locked and they were refused admittance; that they do not appear to have regularly organized under the restored charter until early in the year 1908; that subsequently the lodge hall was torn down, the material which entered into its construction was moved away and erected on another site, and the personal property of the local council was taken to the new structure; that at different times several of the individuals named as defendants and others were seen tak-. ing away the old building and property; that on April 17, 1909, the defendant council passed a resolution instructing the employment of a foreman to oversee the work of tearing down and removing the hall, and that it paid certain orders for the work of removal and reconstruction of the same on the new site; that no application by resolution, or through the regular officials of the local council as it. had continued its organization, was ever made to the state council of the Junior Order of United American Mechanics for a reinstatement of the old charter.
    The court below entered a norfSuit, holding that under the pleadings and the evidence the individual defendants could not be held liable, stating, “so far as they are concerned as individuals, no joint trespass has been proven against them, at most separate trespasses have been proven against some of them, but no amount of damages has been proven against any particular one;” further holding that, in the action as brought, no judgment could be given against the defendant council and that “ the sole remedy against an unincorporated beneficial association is by bill in equity.” The court further held that the plaintiffs could not maintain the action, since by their own pleadings they showed the existence of trustees for the property claimed by them, saying, “Where the legal right is vested in a trustee all actions at law that affect the trust should be brought in his name.” Finally, the court called attention to the fact that the amendment was a departure from the original statement, in that it averred a joint legal possession between the plaintiffs and the defendants up to the' time of the alleged barring out of the latter in 1907, and in this connection said: “If ... . the defendants ousted the plaintiffs from the possession of the real and personal property, then their measure of damages would be what they were deprived of from the time they were ousted .... until the time of the bringing of the suit, and would not be the full value of the real and personal property.” A motion to take off the nonsuit was refused and the plaintiffs have appealed.
    January 2, 1912:

      Error assigned was refusal to take off nonsuit, and reasons given therefor as indicated in the opinion of the Supreme Court.

      R. A. McCullough, with him H. N. Snyder, for appellant.

      W. L. Peart, with him H. A. Heilman, for appellees.
   Per Curiam,

An examination of this record satisfies us that the court below was right in holding that no joint trespass was shown to have been committed by the several defendants. The unincorporated association named as a defendant is not a person natural or artificial and could not properly be sued as such: Ash v. Guie, 97 Pa. 493. “The proper method of suing such an association is to institute a suit in equity against some of the members as representing themselves and all others having the same interest, and after judgment, to compel the defendants ’to see that the treasury of the association pays the claim: ” Maisch v. Order of Americus, 223 Pa. 199; Fletcher v. Gawanese Tribe, No. 281, 9 Pa. Superior Ct. 393.

The Act of April 28, 1876, P. L. 53, “Relieving members of beneficial societies from individual liability for lodge indebtedness,” when it provides that “members shall not be individually liable for the payment of periodical or funeral benefits or other liabilities of the association, and the same shall be payable out of the treasury,” by the words “other liabilities,” means all liabilities properly chargeable to the treasury of the society, and contemplates obligations in addition to funeral expenses or death benefits: Pain et al. v. Sample, 158 Pa. 428. If the defendant association were liable for appropriating the property of the plaintiffs to its own use, its treasury and not the funds of the individual members would have to respond in damages. But it is clear on the facts in this case that there was no such liability. When the forfeiture of the charter was declared the state council of the Junior Order of United American Mechanics did not take over the property of the defendant council, .and the reissue of the charter to the plaintiffs, after a lapse of more than six years, would not serve to vest in them, or in the lodge organized by them, the property in question; nor would it give them any peculiar right of possession therein. The plaintiffs had no right of possession other than the joint right which they enjoyed in common with the other members of the defendant council, and their secession •therefrom would not divest its property: State Council Junior Order of United American Mechanics v. Emery, 219 Pa. 461.

The other ground for entering the nonsuit, namely, because the action was not brought in the name of the trustees of the plaintiffs’ association, likewise seems to be well taken. The laws of the order to which that society belongs ordain that the trustees of a local lodge shall “take charge of and hold all the property of the Council not otherwise provided for.” This evidently contemplates more than a mere passive trust. “In cases of unincorporated associations .... suits may be brought by some of the members in their own names on behalf of and as representing all:” Liederkranz Singing Society v. Germania Turn-Verein, 163 Pa. 265; but, where the suit is to protect property rights, and the legal estate in the property taken or injured is vested in trustees whose duty it is not only to hold the title but to take charge of the property, the action should be brought in the name of such trustees.

The assignments are overruled and the judgment is affirmed.


author: Mr. Justice Brown,

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

      Beneficial associations — Railroads—Release—Negligence.
    1. A member of a railroad employees’ relief association who accepts benefits for an injury sustained in the course of his work cannot, in the absence of fraud inducing the acceptance of the benefits, claim any other or additional damages for such injury.
    2. Where such a member accepts benefits for an injury, and subsequently accepts benefits for a second injury, the fact that a “return to duty” card may have been improperly issued to him by the company’s physician after his first injury, has no connection with his acceptance of benefits for the second injury.
    Argued Oct. 4, 1911.
    Appeal, No. 154, Oct. T., 1911, by plaintiff, from judgment of C. P. Armstrong Co., March T., 1911, No. 244, on verdict for defendant in case of Charles. Reese v. Pennsylvania Railroad Company, a Corporation, Lessee or Owner, and operating the Allegheny Valley Railway Company.
    January 2, 1912:
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Patton, P. J.
    The opinion of the Supreme Court states the case.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error, assigned was in giving binding instructions for defendant.

      Harry C. Golden and C. E. Harrington, for appellant.

      On Buffington, for appellee.
   Opinion by

Mr. Justice Brown,

This appellant was twice injured while in the employ of the defendant company, and he brought an action for each of the injuries. The first was sustained in 1907, and the judgment for the defendant in the first action was affirmed because the plaintiff’s acceptance of benefits as a member of the defendant company’s relief association was, by the express terms of his application for membership in it, a release of any claim that he might have had against the company: Reese v. Pennsylvania Railroad Co., 229 Pa. 340. The second injury, which is the subject of the present action, was sustained in 1909, and the appellant again accepted benefits from the relief association, but now contends that his acceptance of them ought not to bar his right to recover, because his examination, after his accident in 1907, by Doctor Zahm, the surgeon of the defendant company, was so superficial that a fraud was practiced in issuing to him the “return to duty” card. He insists that, but for his return to duty in pursuance of that card, he would not have sustained the second injury. There is nothing in the evidence that could have justified a finding that the company’s surgeon had practiced any fraud upon the appellant; but, even if the alleged fraud had been perpetrated upon him in 1908, there would be no traceable connection between it and his acceptance of benefits for the injuries sustained in 1909. What was said in affirming the judgment for the defendant in the first action brought by the appellant is conclusive against him in the second, and the judgment in it is, therefore, affirmed.


author: Mr. Justice Stewart,

text:
    Earhart, Appellant, v. Marshall.

      Ejectment — Quieting title — Possession — Joint possession — Act of June 10,1898, P. L. 416.

    The remedy provided by act of June 10, 1893, entitled “'An Act to provide for the quieting of titles to land” is available only where the complaining party is in possession of the land over which the dispute arises. Where the pleadings in a proceeding under the act show that the parties have a joint possession, the court is without jurisdiction.
    Argued Oct. 4, 1911.
    Appeal, No. 198, Oct. T., 1911, by plaintiff, from order of C. P. Armstrong Co., March Term, 1911, No. 241, dismissing petition to quiet title in case of Elizabeth C. Earhart v. James W. Marshall and Kate Marshall.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition to quiet title.
    The opinion of the Supreme Court states the case.

      Error assigned was order dismissing petition.

      C. E. Harrington, with him Jefferson R. Reason, for appellant,
    cited: Fearl v. Johnstown, 216 Pa. 205; Kimmel v. Shaffer, 219 Pa. 375; Pifer v. Berkey, 229 Pa. 394; Ullom v. Hughes, 204 Pa. 305; Del. & Hudson Canal Co. v. Genet, 169 Pa. 343.
    January 2, 1912:

      H. A. Heilman, with him E. O. Golden, for appellees,
    cited: Loveland v. Howe, 2 Lack. L. N. 34; Hutchinson v. Dennis, 217 Pa. 290; Kimmel v. Shaffer, 219 Pa. 375.
   Opinion by

Mr. Justice Stewart,

The remedy provided by Act of June 10, 1893, P. L. 415, entitled, “An Act to provide for the quieting of titles to land” is available only where the complaining party is in possession of the land over which the dispute arises. This is apparent when it is considered that the whole purpose of the act, as was said in Ullom v. Hughes, 204 Pa. 305, was to relieve the owner in possession from the common-law necessity of inactively waiting for an attack on his title and enable him to force an immediate contest and settlement. The possession of the complaining party, as was said in Titus v. Bindley, 210 Pa. 121, is a jurisdictional fact, which must appear before the act can be made to apply. Possession, within the meaning of the act, cannot be affirmed where between the parties to the controversy there is a joint occupancy. Here the petition not only did not aver exclusive possession in complainant of the premises in dispute, but in express terms admitted that pursuant to an agreement into which she voluntarily entered the respondents were, and had been for several years, in joint occupancy and possession of the premises with herself. The question of title to the land does not arise. The petition admits that complainant for a valuable consideration conveyed the title to one of the respondents, reserving the right to occupy the same during her life; that shortly thereafter, by virtue of another agreement made with respondents, she admitted them to joint occupancy with herself; and complains that after having obtained possession with the petitioner respondents began a course of unkind treatment towards her for the purpose, as she believes, of compelling her to abandon hér homeland that although often requested to vacate the premises the respondents have refused to do' so, and now insist upon their right to the possession, denying the petitioner’s exclusive right. The answer of respondents, as we read it, makes no denial of petitioner’s right of the common or joint occupancy in the premises with themselves. The whole question is between parties in joint possession as to their several and respective rights in connection therewith. The act of June 10, 1893, furnishes no remedy for the determination of such disputes. ' The petition was properly dismissed; the appeal is without merit, and it is accordingly dismissed at the cost of appellant.


text:
    Hults v. Holzbach, Appellant.

      Will — Estate in fee simple — Estate for life — Defeasible fee.

    Testator in his will directed as follows: “I will and bequeath to my wife all my real and personal estate, including my household and kitchen furniture, so long as she remains my widow. In case my wife should marry again she is to have all that is in the house, two cows and two thousand dollars, and the balance of my real and personal estate, in case my wife should remarry, is to go to my six sisters,” naming them. The widow died without having remarried. Held, that the widow took a defeasible fee, which upon her dying without remarrying became a fee simple absolute.
    Submitted Oct. 4, 1911.
    Appeal, No. 54, Oct. T., 1911, by defendant, from judgment of C. P Mercer Co., April Term, 1910, No. 37, for plaintiff on case stated in suit of Leonard G. Hults, Executor of Elizabeth Mizner, deceased, v. R. F. Holzbach.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate.

      January 2, 1912:
    The opinion of the Supreme Court states the case.

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

      W. G. Barker, for appellant.

      W. W. Moore and B. Magoffin, for appellee.
   Opinion by

Mr. Justice Potter,

In the third paragraph of his will John Mizner provided as follows: “I will and bequeath to my wife Elizabeth Mizner all my real and personal estate, including my household and kitchen furniture, so long as she remains my widow. In case my wife, Elizabeth, should marry again she is to have all that is in the house, two cows and two thousand dollars, and the balance of my real and personal estate, in case my wife, Elizabeth, should remarry, is to go to my six sisters,” (naming them). It appears from the record that the widow did not remarry, and died in possession of the real estate which was devised to her under the above provision of her husband’s will. The question here presented is as to the character of the estate which she took. Counsel for appellant contended that it was only an estate for life. In construing the will, the court below held that the testator intended the widow to take a defeasible fee, which could be defeated only by her remarriage. As this did not occur the title became absolute upon her death. This conclusion was clearly in line with the decision in Fidelity Trust Co. v. Bobloski, 228 Pa. 52, and other cases there cited.

We see nothing in the will to justify an inference that the testator intended his wife to have merely a life estate. He clearly directed that she should have the whole estate, both real and personal, so long as she remained his widow. In case of her remarriage she was to have but a portion of the personal estate, and the remainder of his estate, both real and personal, was to go to his sisters without any limitations. But there was no suggestion of a devise over of the whole estate, after the death of the widow, in case she did not remarry. Therefore, as the facts now stand, if the fee was not in the widow, the result would be an intestacy. The devise was of the property itself, which vested immediately, and in fee, to be divested only in case of remarriage, and this event did not occur. Since the Act of April 8, 1833, P. L. 249, words of inheritance are not necessary in a devise of real estate, in order to pass the whole estate. We are satisfied that this case falls within the principle of the decisions in Rohrbach v. Sanders, 212 Pa. 636; Redding v. Rice, 171 Pa. 301, and Koble v. Bennett, 40 Pa. Superior Ct. 79. The estate granted was a determinable fee, limited to the widow, until the happening of a future event, her remarriage, which might never occur. As in fact the contingency which alone could terminate the estate never did happen, the qualification annexed to the grant was met, and the estate became a fee simple absolute.

The judgment is affirmed.


text:
    Reznor Manufacturing Company, Appellant, v. Bessemer & Lake Erie Railroad Company.

      Evidence — Striking out evidence — Harmless error.

    1. In an action against a carrier, where a witness for the defendant in reply to a question as to the weather testifies that “our record showed that it was clear,” and on cross-examination it appears that the witness had not made the record, the trial judge cannot be convicted of reversible error in refusing to strike out the testimony, where the plaintiff himself subsequently introduces the record in evidence in cross-examination of a witness for the defendant who had made the record.

      Trial — Charge of court — Mistake of judge — Correction of error — Duty of counsel.

    2. A party may not sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.
    January 2, 1912:
    Argued Oct. 4, 1911.
    Appeal, No. 120, Oct. T., 1911, by plaintiff, from judgment of C. P. Mercer Co., Oct. T., 1908, No. 153, on verdict for defendant in case of The Reznor Manufacturing Company v. The Bessemer & Lake Erie Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mosch- ' zisker, JJ.
    Affirmed.
    Assumpsit against a common carrier. Before Williams, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were various rulings and instructions.

      W. C. Pettit, with him James D. Emery and E. H. Moore, for appellant.

      Q. A. Gordon, with him Templeton, Orr & Whiteman and S. H. Miller, for appellee.
   Per Curiam,

Gas stoves delivered by the plaintiff to the defendant, at Mercer, Pa., for shipment to Shreveport, La., were injured by rust when they reached the latter place. There was no evidence of negligence by the carrier, and the plaintiff’s case rested on the bare presumption of the want of care, arising from the fact that the stoves were damaged in transit. This was met by affirmative proof that the stoves were placed in sound box. cars and protected from dampness from any cause against which it was the duty of a carrier to provide and by testimony tending to show that the rust was caused by the condensation of moisture in the atmosphere in a change from a low to a high temperature. At the trial no question of law was decided adversely to the plaintiff, and the issue of fact was submitted with clear and adequate instructions.

Of the numerous assignments of error, which cover twenty-seven pages of the record, but few need be noticed. The car in which the stoves were shipped from Mercer was too large to pass through tunnels of the connecting roads, and at Cincinnati the stoves were transferred to a smaller car. The agent in charge of the transfer testified as to the care exercised in handling the stoves and was asked by the plaintiff’s counsel what kind of weather it was. He replied, “Our record shows that it was clear.” No objection was made to the question or answer. On cross-examination of this witness it appeared that he had not made the record and the court was asked to strike out his testimony in relation to the weather. This request was refused, and the refusal is assigned as error. It is unnecessary to consider whether the request should have been granted, because if there was error in refusing it, the plaintiff has no just ground of complaint. A witness subsequently called by the defendant testified that he made the record and without disclosing its contents used it to refresh his memory. On his cross-examination it was shown what the record contained and thus the entry on the record was made evidence by the plaintiff.

A number of the assignments of error relate to expressions in answer to points and in the general charge which it is argued limited the liability of the defendant to its own acts, and relieved it from liability for negligence of connecting carriers. In view of the course of the trial, these criticisms of the court are unfounded and unjust. The question of the liability of the defendant for the negligence of connecting carriers was not raised by the defendant; it was at least tacitly admitted and the jury was distinctly and repeatedly instructed that the defendant was liable for their negligence. If counsel were of opinion that the inadvertent use of the word “defendant” in referring to negligence, did not include the negligence of all carriers, the attention of the court should have been called to it before the jury withdrew, in order that if an erroneous impression had been conveyed by the use of the word it might be corrected. “A party may not sit silent and take his chances of a verdict and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless:” Com. v. Razmus, 210 Pa. 609.

The judgment is affirmed.


author: Me. Justice Elkin,

text:
    Marks v. Ligonier Borough, Appellant.

      Deeds — Identification of land — Location.
    1. The object of a description in a deed is to identify the land conveyed, and need not necessarily be technically accurate, but must be sufficiently precise for the purpose of identification, and to.enable a surveyor to locate it. While it is the province of the court to construe the deed, the question of the location of the land is for the jury where the evidence relating to the location is disputed.

      Trespass — Ejectment—Parties—Evidence.
    2. In an action of trespass against a borough to recover damages for lands appropriated for reservoir purposes, where it appears that the title to the land had been determined in the plaintiffs in a prior action of ejectment in which they had been named as defendants, and it also appears that in the action of trespass the question involved was the location, and not the title to the land, evidence relating to the use and occupancy of it prior to the ejectment, is admissible.
    Argued Oct. 5, 1911.
    Appeal, No. 88, Oct. T., 1911, by defendant, from judgment of C. P. Westmoreland Co., May T., 1903, No. 205, on verdict for plaintiffs in case of Lemon Marks et al. v. Ligonier Borough.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for the appropriation of land.
    At the trial the jury returned a verdict for $1,931.30 ■ for plaintiffs.

      On motion for a new trial Galbreath, P. J., specially-presiding, filed the following opinion:
    The pending case is an action in trespass brought by the plaintiffs against the defendant borough to recover damages alleged to have been sustained by reason of the taking of a portion of ground for reservoir purposes and the laying of water lines in connection therewith. The land so taken is part of a larger tract of fifty-five acres situate in Ligonier township, Westmoreland county, the title to which at the inception of this suit was claimed by the plaintiffs herein and also .by Beck and Brown to whose predecessors in title, the Franklin Investment Company, the borough of Ligonier gave bond when it entered upon and appropriated the land for reservoir purposes. Subsequent to that time the title of the Franklin Investment Company, through sundry conveyances, vested in John E. Beck and George Brown. The title to the land taken for reservoir purposes being thus in dispute, said Beck and Brown brought an action in ejectment against the present plaintiffs and Marks’ heirs at No. 481, August Term, 1907, for the said larger tract of fifty-five acres claimed by both parties. The verdict of the jury in that case was as follows: “Now, to wit: 21 February, 1908, we, the jurors empanelled in the above entitled case, find for the defendants the five acres as per Exhibit No. 5; also the eleven acres and one hundred perches as per Deed Book 64, page 66, a total of sixteen acres and one hundred perches; the balance of the fifty-five acres in dispute to go to the plaintiffs with six cents damages and costs.”
    The deed referred to in the above-recited verdict was made by Catherine Wadsworth to Nancy Marks, who was the mother of the present plaintiffs, and described the land conveyed as being “bounded on the North by Washington Furnace Run; by the Furnace Lands on the East and South and on the West by lands of the said Nancy Marks and Joseph Naugle, containing eleven acres and one hundred perches.”

      There is no question as to the location of the five acres as shown on exhibit No. 5 in that case. The controversy arises over the true location of the eleven acres and 100 perches described in the deed recorded in Deed Book 64, p. 66. Plaintiffs claim that the reservoir site is a portion of the land described in said deed. The defendants contend that it is not.
    It appears that no location of the eleven acres and 100 perches can be made which will, in all respects, fit in with 'the description found in the deed, nor is it necessary that the description should be technically correct provided it is sufficiently precise to enable a surveyor to locate it. On the trial of the case a plot or draft was offered in evidence, showing the location of the land as claimed by the defendant and which, while not fitting in precisely with the description in said deed, yet conformed thereto in reasonable measure and which so located the land as to exclude the reservoir site. No plot or draft was introduced on part of the plaintiffs to locate their claim to the eleven acres and 100 perches. They offered oral testimony, however, tending to show that it could with an equal degree of certainty be so located as to include the reservoir site. It was brought out also on cross-examination of W. H. Mathews, a surveyor called as a witness by the defendant, that if certain facts in evidence were assumed he would have located the eleven acres and 100 perches where the reservoir now is. In addition to this it was testified by W. H. Buell, a witness on part of the plaintiffs, that his father who sold the land to Catherine Wadsworth, who made the aforesaid deed to Nancy Marks, did not convey all the land owned by him, but reserved the northwest portion lying north of the five-acre tract owned by the Marks. If this be correct it follows that the portion so retained not having passed to Catherine Wadsworth did not therefore pass by her deed to Nancy Marks, but the portion so retained is included in defendant’s draff, exhibit No. 1, above referred to. If its inclusion was therefore an error it is evident that the plot must be extended eastward and so exclude the reservoir site in order to make up the eleven acres and 100 perches.
    These matters are adverted to for the purpose of showing that the location of the land described in Deed Book 64, p. 66, was a question of fact to be determined by the jury and not one of law to be determined by the court, as contended for by defendant’s counsel. The land as described in said deed can with almost equal degree of certainty or uncertainty be located so as to include or exclude the reservoir site. This being true, the court on the trial of the case, admitted oral testimony showing the occupancy of the reservoir site by the Wadsworths before the said deed was made and by Nancy Marks and those holding under her after the making of said deed. This testimony tended to show the understanding of the description in the deed by the parties whose negotiations and intentions were merged in it and helped to solve the latent ambiguity growing out of the situation.
    The form of the verdict is as follows: “And now, to wit: December 1, 1909, we, the Jurors empanelled in the above entitled case, find for plaintiffs. We find the reservoir is on the eleven acres, one hundred perches belonging to Marks Heirs, as on Exhibit No. 5. We find damages in the sum of $1931.30 and costs.” This verdict is inartfully drawn in that it connects the eleven acres and 100 perches with exhibit No. 5, instead of with the description contained in the deed recorded in Deed Book 64, p. 66. The purport, however, is clear and the verdict should be given the effect of its evident meaning and this can well be done by discarding as surplusage its reference to exhibit No. 5. It is also urged that the verdict is excessive. The evidence relative to the amount of damage sustained, it may be conceded, was not only conflicting, but lacking in that degree of definiteness which is desirable. When we consider, however, that the land was appropriated some fourteen years ago and that the witnesses were required to give their estimates as of that time, it is not surprising that the evidence is less satisfactory than could be desired. But we may assume that after this interval of years, the evidence adduced was the best possible under the circumstances. The length of time since the taking of the land accounts also, in part, no doubt, for the amount of the verdict, which represents not only the compensation due the plaintiffs for the damage sustained at the time the land was taken, but also that arising from the detention of such damage from the time it was sustained up until the date of the trial and verdict. On a former trial of the case, more than five years prior to that now under consideration, a verdict was rendered for the plaintiffs in the sum of $775.
    We are well aware that the situation arising from any verdict and judgment in this case in favor of either party is unsatisfactory in that it does not necessarily settle the question of the location of the eleven acres and 100 perches of land between the present plaintiffs and Beck and Brown, who are not parties to the pending action, but that fact in no way militates against the right of the plaintiffs to prosecute their claim for damages as they have done in this case against the defendant borough.
    When we consider that almost eight years have elapsed since the bringing of this suit, that two trials of the action have resulted in verdicts for the plaintiffs and that the principal question involved is one of fact for the jury and not of law to be declared by the court, and not being convinced of any serious error committed in the trial of the case, we conclude that the rule for a new trial should be discharged and it is discharged accordingly and judgment is directed to be entered on the verdict, sec. reg.

      Errors assigned were various instructions by which the court submitted the question of the location of the land to the jury.

      Robert W. Smith, with him James S. Moorhead, for appellant.
    When the location of land described in a deed is certain it needs not a jury to distinguish it from'another tract. If it be admitted that the boundaries of the tract of land actually exist on the ground as named in the deed, the jury should not interpret the deed or determine that the land is in another place: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Harvey v. Vandegrift, 89 Pa. 346.
    January 2, 1912:

      C. Ward Eicher, with him W. C. Peoples, JohnL. Kunkle and Alex. Eicher, for appellees.
   Opinion bt

Me. Justice Elkin,

This is an action of trespass to recover damages for lands appropriated by the appellant for reservoir purposes, and for the purpose of laying water mains to connect therewith. The tract of land claimed by appellees upon which the trespass was alleged to have been committed contains eleven acres and 100 perches. The title to this tract of land was determined to be in the present appellees in an action of ejectment in which they were named as defendants. Upon the trial of the action of ejectment the jury returned a verdict “for the defendants the five acres as per exhibit No. 5, also the 11 acres 100 perches as per Deed Book 64, page 66, a total of 16 arces and 100 perches, the balance of the 55 acres in dispute to go to the plaintiff with six cents damages and costs.” A motion was filed asking for a new trial on the ground that the verdict was void because uncertain and vague. The trial court refused the motion for a new trial, ordered exhibit No. 5 and a copy of the description in Deed Book 64, p. 66, to be filed of record in the case, and directed judgment to be entered on the verdict. ■ From the judgment subsequently entered no appeal was taken and as a result the record shows an adjudication of the title to the eleven acres and 100 perches of land to be in the plaintiffs in the present case who were the defendants in the action of ejectment. The description in Deed Book 64, p. 66, to which reference was made in the verdict, and which was made part of the record in that case is as follows, to wit: “All that certain lot of ground situated in Ligonier Township, Westmoreland County, Pennsylvania, bounded on the North by Washington Furnace Run, by the Furnace Lands East and South, and on the West by other land of the said Nancy Marks and land of Joseph Naugle, containing eleven acres and one hundred perches.” The object of a description in a deed is to identify the land conveyed, and need not necessarily be technically accurate, but must be sufficiently precise for the purpose of identification and to enable a surveyor to locate it. The learned trial judge in the ejectment case held that the verdict based upon the description above recited was sufficient to meet the requirements of the rule, and although that question is not now before us, we concur in the conclusion then reached. In the present case we start with title to the eleven acres and 100 perches in appellees, and the only question for determination is whether the reservoir is located on this tract of land. This was the disputed question throughout the trial, and it necessarily depends upon the location of the land described in Deed Book 64, p. 66. The first contention of appellant is that under the facts the location of the land was for the court and not for the jury. It is argued that the verdict in the ejectment case was sufficiently definite to enable a surveyor to locate the land and that a surveyor did locate it so as not to include the reservoir site. Two surveyors were called as witnesses for the purpose of locating the tract in question, but neither of them made an actual survey on the ground. The first surveyor called took as the basis of his computation the eastern line of the Joseph Naugle tract as shown in the exhibit and with this as a starting point undertook to locate the tract between the Furnace run and the Old Furnace road, which were the northern and southern boundaries mentioned in the description contained in the deed. This left the eastern boundary an arbitrary line drawn by the surveyor so as to include the exact amount of land contained in the deed referred to in the verdict. The second surveyor in the main corroborated the testimony of the first in this paper location of the tract. The

plot from which the first surveyor made his deductions did not show the lines of the eleven-acre 100-perch tract. It showed a tract containing sixteen acres and 100 perches which of course included the tract in question, but did not definitely locate it. The second surveyor called conceded that the tract in dispute here might be located so as to include the reservoir site, and if certain facts recited from the evidence were true, he would so locate it. It was in evidence that there was an old fence from the northeastern corner of the Nancy Marks’ five-acre tract to Furnace run and that the land between this fence and the reservoir had been cleared and tilled for many years. Taking the old fence as a starting point the second surveyor conceded that the tract in question could be located on the ground so as to include the reservoir. Indeed, with all the facts as to possession and occupancy established, he testified that he would so locate the land. All of these facts tend to show that the paper location fixed by the surveyors depended not upon actual marks or monuments on the ground, nor,upon possession and occupancy following the course of title, but assuming the Naugle line as a starting point included sufficient area, between certain general boundaries mentioned in the deed and an arbitrary eastern line drawn for the purpose, to make the required number of acres. Under these circumstances we think that neither of the surveyors nor any of the witnesses called for the purpose, did so definitely locate the tract as. to warrant the trial judge in determining the question as a matter of law. The location of the land was a disputed question of fact and this was for the jury. As far back as Collins v. Rush, 7 S. & R. 147, it was held that while the construction of a written conveyance is the exclusive province of the court, the description of land conveyed, its limits and contents, are frequently mixed questions of law and fact. The books are full of cases in which this rule is recognized and approved. In the case at bar the location of the land was a question of fact for the jury and we see no error in its submission.

This brings us to the consideration of the second question raised by appellant, which is, should the jury have been permitted to consider testimony relating to the use and occupancy of the land prior to the trial of the action of ejectment? It is contended that all questions relating to use and occupancy were submitted to the jury in the ejectment trial and that the verdict in that case concludes the defendants there who are the plaintiffs here, from again introducing testimony of this character in an action of trespass for damages to the same tract of land. In other words, that all of these questions were merged in the verdict upon which plaintiffs must stand. This position ignores the different issues involved in the two trials. At the trial in the action of ejectment the question in controversy was title to the land, while in the case at bar the question for determination was its location. No question of title was involved in thé present suit. Again, the jury in the ejectment trial found that the title to the premises described in Deed Book 64, p. 66, was in the present plaintiffs. It therefore became necessary in the case at bar for the plaintiffs to offer that deed in evidence which was done. This was followed by testimony, uncontradicted, tending to show that for more than fifty years the plaintiffs and their predecessors in title had used and occupied the land in question, including the reservoir site; and that they had used and occupied the buildings, garden and sawmill actually located on the land now appropriated upon which the trespass for which damages are claimed was alleged to have been committed. ■ No objection was made to the offer and admission of this testimony, and no motion was made to strike it out at the conclusion of the trial. A point was submitted requesting the court to instruct the jury that no such testimony could be considered upon the ground that exhibit No. 1 was a correct survey of the land awarded to the plaintiffs by the verdict in the ejectment trial and that this survey showed the reservoir not to be included in the premises described in Deed Book 64, p. 66. The trial judge refused the point and we think properly so. Exhibit No. 1 was not necessarily a correct survey of the land described in Deed Book 64, p. 66. The surveyor who prepared the exhibit admitted on the stand that he had not made a survey of the particular tract in question. How could the court instruct the jury that it was a correct survey when the surveyor testified that he had not made a survey at all? In this connection we agree with the views expressed by the learned court below in the opinion filed denying the motion for a new trial. The whole case depended upon the location of the eleven-acre 100-perch tract and under the facts this was for the jury.

The able argument of counsel for appellant has failed to convince us that any reversible error was committed in the trial of the case.

Judgment affirmed.


author: Mr. Justice Moschzisker,

text:
    Commonwealth v. Brent, Appellant.

      Criminal law — Murder—Drunkenness as a defense — Evidence.
    1. On the trial of an indictment for murder where drunkenness is set up as a defense, and a number of witnesses are produced by the defendant in support of such defense, a verdict of guilty of murder of the first degree will not be reversed where nearly a dozen witnesses for the commonwealth testify that he was not drunk, and the trial judge carefully defines the difference between murder in the first degree and murder in the second degree, and otherwise properly and adequately instructs the jury.

      Appeals — Assignments of error.

      2. Assignments of error which are discursive and argumentative, or which fail to give the context of the words assigned for error, are faulty.
    Argued Oct. 5, 1911.
    Appeal, No. 124, Oct. T., 1911, by defendant, from judgment of O. & T. Somerset Co., Feb. T., 1911, No. 7, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry Brent.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Kooser, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree.

      Errors assigned were as follows:
    1. “ The court erred in saying to the jury, ‘The offense is murder of the first degree.’ These words form the conclusion of the instructions as to murder of the first degree, but they are a separate expression; they are just such an expression as the jury would seize and construe to be an expression of the opinion of the court that the jury should convict of murder of the first degree.”
    2. “ The court erred in his answer to defendant’s first point which is as follows: ‘The burden of proving every element of any offense is on the commonwealth and never shifts or changes.’ The answer was as follows: ‘I affirm that. The commonwealth must satisfy your minds beyond a reasonable doubt of every material element of the charge against the defendant, but when the defendant sets up as a defense that he was intoxicated to a degree that he was incapable of forming a willful, deliberate and premeditated intent to take life, the burden rests upon the defendant to satisfy you of such degree of intoxication, not beyond a reasonable doubt, but by a preponderance of the evidence.’ The court erred in that he did not affirm this first point without qualification. He further erred in not defining to the jury the meaning of the phrase “preponderance of the evidence.” The qualification destroyed the force of the court’s affirmation of the point. The court further erred in emphasizing the matter of premeditation when there was no evidence offered by the commonwealth to show premeditation,”

      3. “ The court erred in his answer to the fourth point which was as follows: 'The defendant is entitled to the benefit of any reasonable doubt that may exist in the mind of any one of the jurors who try him, after a calm, full and passionless consideration of all the evidence submitted.’ The answer was as follows: ‘The verdict of a jury in the criminal courts in Pennsylvania must be unanimous, and of course as there cannot be unanimity so ,long as anyone persist he is in possession of a reasonable doubt, there cannot be a verdict of guilty, and so far that condition of this point is affirmed, but it is the duty of the jurors to discuss and weigh and carefully consider the testimony of the case and all the facts in the case and to arrive at a unanimous conclusion if they can. If they cannot it results in a mistrial, of course. A reasonable doubt is not a doubt that you can summon up out of nothing, to escape a duty that might seem disagreeable or burdensome, but that doubt must arise and stand upon the testimony in the case. If the testimony raises such a doubt in the mind of a juror or more than one juror so as to prevent a unanimous verdict of the jury, that of course enures to the benefit of the defendant as stated in this point.’ The point should have been affirmed without qualification. The attempted definition of reasonable doubt fails to give any adequate notion of what constitutes a reasonable doubt.”
    4. “ The court erred in his answer to the fifth point, which was as follows: ‘It is the duty of any one of the jurors in whose mind, after a careful consideration with his fellow jurors of all the evidence, a reasonable doubt exists as to any essential element of first degree murder, to refuse to convict the defendant of first degree murder.’ The answer was as follows: ‘As I have said to you in the other point, it is the duty of the jurors to weigh together and carefully consider the evidence and arrive at a conclusion if you can. I have already answered you that if a reasonable doubt exists as to any essential element of murder of the first degree, you could not convict of murder of the first degree, but if on the other hand there would be no such doubt it follows you should convict, and just as I have said with reference to the preceding point, there must be unanimity of verdict, and as long as one juror has a reasonable doubt, it is his duty to weigh the testimony with the others and banish the doubt if he can.. If not it enures to the benefit of the defendant.’ The court erred in this that he did not affirm the defendant’s fifth point without qualification.”
    5. “The court erred in his answer to the defendant’s sixth point, which was as follows: ‘Evidence of good character is to be regarded as a substantial fact, like any other tending to establish the defendant’s innocence, and ought to be so regarded by the court and jury.’ The court erred in not affirming this point without qualification and further erred in reading and answering it in connection with the seventh point.”
    6. “ The court erred in his answer to defendant’s seventh point, which was as follows:' ‘Evidence of good character is not a mere makeweight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence and may of itself, by the creation of a reasonable doubt, produce an acquittal.’ The answer to the sixth and seventh points was as follows: ‘That is true and these points are affirmed, that is to say, good character may work an acquittal, but good character is to be considered not by itself so as to work an acquittal upon it alone. It may of itself raise a reasonable doubt, but it is to be considered, together with the other testimony, and if all the testimony raises such doubt it operates as I have said to the benefit of the defendant in his acquittal. If not, if after considering all the testimony you have no reasonable doubt of the defendant’s guilt, and the degree of the crime, you will render your verdict accordingly.’ The court erred in that he did not answer these points separately. The court further erred in that he did not affirm each of them separately and without qualification. The court further erred in that he misstated the law as to evidence of good character in saying, ‘Good character is to be considered not by itself so as to work an acquittal upon it alone.’ Good character may be the only defense and may work an acquittal with nothing else. In this case the good character for peace of the defendant was entitled to very careful consideration. The manner in which the points were read and their being answered as they were, robbed them of all force in the minds of the jury.”
    January 2, 1912:
    7. “ The court erred in his answer to the eighth point, which was as follows: ‘If jury believe from the evidence that at the time of the killing, the defendant, Henry Brent, did not know the consequences of his act and did not commit said act in pursuance of a previously formed purpose or design, then the law does not regard him as guilty of murder of the first degree.’ The answer was as follows: ‘I affirm that point, saying to you as I did before that purposes may be formed quickly or may be of a longer standing.’ The court erred in not affirming the point without qualification. • What difference did it make as to when a purpose could be formed if the defendant could not form an intent? ”
    8. “The court erred in overruling the motion for new trial and in arrest of judgment.”

      A. C. Holbert, for appellant.

      John S. Miller, district attorney, and W. Curtis Truxal, for appellee, did not appear.
   Opinion by

Mr. Justice Moschzisker,

Henry Brent, a colored man, was convicted in the court below of murder of the first degree. It appears from the testimony that on January 28, 1911, he shot and killed one Charles Langley. The circumstances surrounding the homicide were as follows: the defendant purchased a revolver and cartridges about seven o’clock in the morning of the day of the shooting, and later went to spend the evening at a boarding house, where all the inmates were colored. At about ten o’clock in the evening Rufus Cofer, who had been commissioned by Langley to go to town to purchase some whisky, returned with two other men. They all entered the house, and about a half a dozen of them, including the defendant and the deceased, assembled in the kitchen and began drinking the whisky. After two of them had taken drinks the bottle was passed to the defendant who held it for some time before partaking of it. This provoked an altercation between him and the deceased who said, “Hurry up and take a drink so somebody else can get one.” The defendant replied, “You don’t need to tell me what to do; I know what to do; you don’t need to tell me anything.” Then Langley said, “I just told you to hurry up and take a drink so some one else can get one,” and the defendant replied, “You don’t need to tell me what to do; I know what to do. I won’t stand for you to tell me anything.” He then stepped to the dining-room door, drew a pistol from his pocket, and while standing within six feet of his victim fired two shots; one of them wounded a man named Anderson and the other one entered Langley’s body and killed him almost instantly. The pistol was taken from the defendant by force, and he hurried from the house.

The defense was drunkenness, and the accused contends that under the evidence his crime cannot rise higher than murder of the second degree.

The defendant testified that on the night prior to the. shooting he retired at twelve o’clock after having drunk a pint of whisky, and that the next morning he drank almost a quart of whisky between the hours of five and seven, after which he went to a shanty kept by an Italian and purchased and drank six bottles of beer; that he did not recollect anything that occurred subsequent to his drinking the beer until he was arrested between two and three o’clock in the morning of the day after the shooting. Three witnesses were called by the defense; one of whom testified that he saw the defendant three times on the day of the shooting; that he saw him at eight o’clock in the morning, and that he was “drinking heavy”; that he saw him at noon, and at supper time, and that he was drunk on both of these occasions. Another witness testified that he saw him at eight o’clock in the evening of the day of the shooting, and that he seemed “half crazy, or drunk or something.” And the last one testified that he saw him a few minutes past twelve o’clock on the morning of the twenty-ninth, that is, about two hours after the shooting, and that he was “moosing about”; that there was “something the matter with him,” and he did not know whether he was “rum-dum or full of coke.” There was also evidence that he had two drinks of whisky just before the shooting.

But the commonwealth produced nearly a dozen witnesses who testified that they had seen and observed the defendant on the day of the shooting and that he was not drunk. The man who sold him the pistol at about seven o’clock in the morning of that day said that he was “sober, and in good condition”; and four of the witnesses testified that they saw the accused in the house at about the time of the shooting, and that he was not drunk.

The specifications of error complain of the instructions given to the jury by the trial judge. When the chargé and answers to points are taken as a whole the accused was given every protection to which he was entitled under the law, and the jury must have understood therefrom that the burden was upon the commonwealth to show all of the elements of murder of the first degree beyond a reasonable doubt or the prisoner could not be found guilty of more than murder of the second degree, and further, that the defense of intoxication would only have to be established by a fair preponderance of the evidence. The jury’s attention was called to the testimony concerning the liquor imbibed by the defendant, and they were informed that if they should find the intoxication of the prisoner to have been so great as to render it impossible for him to form a willful and deliberate attempt to take the life of the deceased, the homicide would not rise above the second degree. They were adequately instructed upon the subject of character evidence and were told that good reputation when established might raise a question in the mind of the jury whether a man with the character shown would be guilty of the offense charged, and they were sufficiently informed as to the effect of a reasonable doubt. Complaint cannot justifiably be made of the answers to the points when applied to the facts of this case and the. defense set up; all of the qualifications were appropriate and none of them could have hurt the defendant. Finally, an examination of the evidence, in the light of the law as recently laid down in Commonwealth v. Detweiler, 229 Pa. 304, fails to convince us that the jury were not justified in drawing the conclusion of guilt in the degree fixed by the verdict.

Most of the specifications are discursive and argumentative, and the first fails to give the context of the words assigned for error; in these respects they are faulty, but we have considered them all and overrule them as lacking in merit.

The judgment is affirmed and the record is remitted to the court below for the purpose of execution.


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    Mostoller, Appellant, v. Baltimore & Ohio Railroad Company.

      Negligence — Railroads—Grade crossings — “Stop, look and listen.”

    In an action against a railroad company by the driver of a wagon to recover damages for personal injuries sustained at a railroad crossing, binding instructions for the defendant are proper where it appears that the plaintiff was familiar with the crossing, and when 625 feet from it he saw a long train of loaded coal cars passing over it; that at a point 425 feet from it, he stopped at a watering trough at the roadside to water his horse, and drove from there to the crossing at a slow walk, without again stopping; and that from the watering trough he had a view of the road for 1,700 feet m the direction from which the engine came, and that from any point within 200 feet of the crossing this view was extended to about 3,500 feet.
    January 2, 1912:
    Argued Oct. 5, 1911.
    Appeal, No. 99, Oct. T., 1911, by plaintiff, from judgment of C. P. Somerset Co., May T., 1907, No. 282, on verdict for defendant in case of Newton A. Mostoller v. The Baltimore & Ohio Railroad Company.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Elkin, Stewaet and Mosohziskee, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    The facts are stated in the opinion of the Supreme Court.
    The court gave binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      W. H. Buppel, with him Charles F. Uhl, Jr,, for appellant.

      J. G. Ogle, for appellee.
   Per Curiam,

It appeared from the plaintiff’s testimony that his injury was caused by his failure to exercise the care which the law exacts of a driver before crossing the tracks of a steam railroad. He was familiar with the crossing and when 625 feet from it, he saw a long train of loaded coal cars passing over it. At a point 425 feet from it he stopped at a watering trough at the roadside to water his horse, and drove from there to the crossing at a slow walk, without again stopping. From the watering trough he had a view of the road for 1,700 feet in the direction from which the engine came and from any point within 200 feet of the crossing, this view was extended to about 3,500 feet. The night was dark and as the plaintiff moved forward from the watering trough his attention was mainly, if not wholly, directed to observe teams approaching on the country road in order to avoid collision with them.

It does not appear from his testimony that he at any time stopped for the purpose of looking and listening for a train, and it certainly does appear that he did not stop at a place where stopping would have been of any avail. If he looked and listened when at the watering trough, which is very doubtful under his testimony, it was his duty to stop again near the track, where he would have had a better opportunity to use his senses of sight and hearing. It was said in Aiken v. Railroad Co., 130 Pa. 380, “Stopping is an essential part of the rule, to enforce attention to the accompanying duties of looking and listening, and to secure their performance in something more than a perfunctory and heedless way.”

A verdict was properly directed for the defendant and the judgment is affirmed.


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    Second National Bank of Pittsburg, Appellant, v. Hoffman.

      Promissory notes — Indorser—Fraud—Evidence—Banks and banking — Cashier.
    In an action by a bank against the indorser of a promissory note, where the defendant shows that the note was procured from him by the fraudulent act of the maker, but it is shown by the testimony of the bank’s own cashier, by that of the maker called as a witness by defendant, and by the admission of the defendant, that the bank had no knowledge of the fraud, it is reversible error for the trial court to submit the question of the bank’s knowledge of the fraud to the jury. If it does so, and a perverse and unwarranted verdict is returned in favor of the defendant and judgment entered thereon, the judgment will be reversed on appeal, with direction that the record be remitted, and judgment entered by the court below for the plaintiff non obstante veredicto.
    Argued Oct. 5, 1911.
    Appeal, No. 189, Oct. T., 1911, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1908, No. 83, on verdict for defendant in case of Second National Bank of Pittsburg v. Taylor Hoffman.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Assumpsit on a promissory note. Before Criswell, P. J.
    ■ The facts appear by the opinion of the Supreme Court and by the previous report of the case in 229 Pa. 429.
    At the trial the plaintiff presented these points:
    2. If the jury believe the testimony of the witness J. M. Young, the plaintiff had no actual notice of any infirmity in the $6,500 note, being the note in question; ’or of any defect in the title thereto of the McKees who negotiated it. Answer: Affirmed, unless such notice came to the bank through some other person than the cashier, Mr. Young, and of this we recall no evidence. [1]
    3. There is no evidence of knowledge on the part of plaintiff of such facts as would justify the jury in finding that its action in taking the note in question amounted to bad faith. Answer: Refused. [2]
    5. Under the evidence in this case and the law applicable thereto, the plaintiff is entitled to recover. Answer: Refused. [3]
    Defendant presented these points:
    4. If the jury find from the evidence that the defendant indorsed the said note for the accommodation of John M. McKee, and that the indorsement was requested by John M. McKee for the specific purpose of paying store debts, and that the defendant in reliance or in pursuance to that request indorsed the said note, for that specific purpose and no other, and that the said note was not used for the purpose of paying store debts, the burden is upon the plaintiff to show that it is a holder in due course, and if the jury further find that the plaintiff is not a holder in due course, the verdict of the jury must be for the defendant. Answer: If the jury find the fact relative to the procuring of the signature of Hoffman to the note to be as recited in this point and that the note was not used for the purpose stated the burden is upon the plaintiff to satisfy you by evidence that it is a holder in due course; that is, that it received the note without notice or knowledge of such representations, and, if the jury further find that it did not so receive the note the verdict should be for the defendant. [4]
    5. If the jury find from the evidence that John M. McKee and W. C. McKee transferred the said note to the plaintiff as collateral security for an antecedent indebtedness, which had not been extended, released or extinguished, and no new consideration passed at that time, the plaintiff is not a holder in due course. Answer: Affirmed, but upon this subject reference is made to the general charge. [5]
    7. If the jury find that the plaintiff had actual knowledge of the fraudulent representation of John M. McKee to the defendant, or had knowledge of such facts that its action in taking the instrument amounted to bad faith, the plaintiff is not a holder in due course. Answer: Affirmed. [6]
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      John L. Nesbit, with him Chantler & McClung, Trimble & Chálfant and B, F. Glenn, for appellant
    It was error to submit the case to the jury: Lonzer v¿ It. It. Co., 196 Pa. 610; Schley v. It. R. Co., 227 Pa. 494; Eardley v. Keeling, 10 Pa. Superior Ct. 339; Knupp v. Brooks, 200 Pa. 494; Edwards y. Meyers, 227 Pa. 584; Shannon v. McHenry, 219 Pa. 267; Dinan v. Supreme Council, 213 Pa. 489.
    January 2, 1912:

      Geo. E. Reynolds, with him Bryan H. Osborne, for appellee.
    The evidence as to whether the plaintiff received the note in good faith and without notice of any defect in the title depended upon the credibility of witnesses: Reel v. Elder, 62 Pa. 308; Perkiomen R. R. Co. v. Kremer, 218 Pa. 641; Reeper v. Greevy, 5 Pa. Superior Ct. 316; Loeb v. Mellinger, 12 Pa. Superior Ct. 592; Colonial Trust Co. v. Getz, 28 Pa. Superior Ct. 619; McNight v. Parsons, 136 Iowa, 390 (113 N. W. Repr. 858); Dinan v. Supreme Council, 210 Pa. 456.
   Opinion by

Mr. Justice Brown,

When this case was here before, at October Term, 1910, on appeal by the defendant from the judgment against him on the verdict directed for the plaintiff, a new trial was awarded, for the sole reason that the jury should have been permitted to determine whether the plaintiff had shown by the testimony of its cashier that it had taken the note in suit in good faith and for value, without any notice of the fraud which had been perpetrated by John M. McKee upon the defendant in procuring his indorsement of it: Second National Bank v. Hoffman, 229 Pa. 429. The facts there stated reappeared on the second trial and need not be repeated here, though we are called upon to again say that the note was unquestionably delivered to the bank in payment of the balance due on the old obligation, and not merely as collateral for a pre-existing debt.

We cannot agree with the statement of the learned trial judge, in his opinion refusing judgment for the plaintiff non obstante veredicto, that the testimony on the second trial upon the vital point in the case was substantially the same as on the former trial. On that trial the only person called by the plaintiff, to relieve itself of the burden upon it of showing that it had no knowledge, at the time it took the note, of McKee’s fraud upon the defendant, was its own cashier, and, under the rule as to parol testimony, it was held that his credibility was for the jury. He was the bank’s most active officer, and the jury might have found that he was “a witness deeply interested in the result of the suit, which was to determine whether his bank should be paid by Hoffman or lose what the McKees owed it.” He was called as a witness again on the second trial and testified substantially as he had testified before as to the bank’s ignorance of the fraud practiced by McKee upon the defendant; but on the last trial the plaintiff did not rely upon his testimony alone as to this. It conclusively appeared from the testimony of the defendant himself, and from that of McKee when on the stand as one of his witnesses, that the bank had no knowledge whatever of what had taken place between them at the time the defendant indorsed the note. The admission of the defendant was that neither he nor anyone for him had ever communicated with the bank, and McKee testified that he had never communicated to it the talk he had had with the defendant on the evening that the latter indorsed the note. It thus affirmatively appeared, from the defendant’s own admission and from the testimony of McKee, one of his witnesses, that the bank had no knowledge of the latter’s fraud upon the defendant, and it was, therefore, error in the court below to permit the jury to pass upon that question. It was not a disputed one after the defendant and McKee had testified. As a result of permitting the jury to treat it as such there followed a verdict not only perverse and clearly against the weight of the evidence, but in the face of testimony from which the only possible conclusion to have been drawn by honest minds was that the bank was utterly without knowledge of McKee’s fraud upon the defendant. Under the circumstances, the plaintiff’s fifth point should have been affirmed. Having failed to affirm it, the court subsequently should have entered judgment for the plaintiff upon the whole record non obstante veredicto: Dalmas v. Kemble, 215 Pa. 410; Bond v. Pennsylvania Railroad Company, 218 Pa. 34; Shannon v. McHenry, 219 Pa. 267. The tenth assignment of error is sustained and the record is remitted, with direction that judgment be entered for the plaintiff non obstante veredicto.


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    Clovis, Appellant, v. Price.

      Equity — Findings of fact — Review—Appeals.
    1. The findings of a judge sitting as a chancellor will not be disturbed, except for error which clearly appears. This is especially true where the finding depends on the credibility of witnesses.
    2. In a suit for the cancellation of a written contract for the sale of unmined coal, signed by three of the five grantors named therein, a finding against plaintiff’s contention that at the time of the signing of the contract it was agreed that it should not be binding unless signed by all will not be set aside, where the evidence sustains the correctness of the finding.
    Argued Oct. 9, 1911.
    Appeal, No. 46, Oct. T., 1911, by plaintiffs, from decree of C. P. Greene Co., No. 106, in Equity, in case of E. R. Clovis, J. C. Clovis and E. R. Clovis, Guardian of F. M. Clovis, v. H. J. Price, Smith Hood, Jr., and W. K. Hatfield.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for the cancellation of a contract for the sale of coal. Cross bill for specific performance. Porter, P. J., specially presiding.
    The case turned on questions of fact.

      Error assigned was decree dismissing plaintiff’s bill and granting specific performance as askéd for in the cross bill.

      January 2, 1912:

      J. W. Ray, with him S. M. Smith and D. C. Cumpston, for appellants.

      James J. Purman, for appellees.
   Per Curiam,

The plaintiffs’ bill was for the cancellation of a contract for the sale of coal underlying three adjoining tracts of land that were described together as one tract of 169 acres. The cross bill of the defendants was for a specific performance of the contract of sale. One of the five persons named in the contract as grantors, was the sole owner of one tract, a part owner, with three others named, in another tract, and all five were owners in different interest in the third tract. The joint description was apparently resorted to as a matter of convenience. Two of the five persons named in the contract as grantors did not sign the agreement. It was averred in the bill that at the time of the signing of the contract by three of the owners it was agreed that it should not be binding unless signed by all, and that the recording of it was a fraud upon them. The plaintiffs’ whole case rested upon this averment. It was the only ground on which relief was asked by the bill. The finding of the court was against them.

We are asked to set this finding aside. The findings of a judge sitting as a chancellor will not be disturbed except for error which clearly appears. This is especially true where the finding depends on the credibility of witnesses: Steinmeyer v. Siebert, 190 Pa. 471. A review of the testimony by us has not raised a doubt of the correctness of the finding.

The decree is affirmed at the cost of the appellant.