text:
    Macfarren, Appellant, v. Gallinger.

      Principal and agent—Contract—Termination of agency.

    A contract of agency is revocable at any time for good cause.
    Where a contract of agency stipulates that the agent shall “ deposit daily all money received,” a continuous violation of this stipulation by the agent, affords the principal just ground for terminating the agency
    Argued Oct. 26, 1904.
    Appeal, No. 54, Oct. T., 1904, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1901, No. 158, dismissing bill in equity in case of S. J. Macfarren and A. G. Hamm, trading as The Realty Company v. Horace G. Gallinger.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for an account.
    From the record it appeared that plaintiffs were employed by the defendant to sell lots, and that the agency was terminated for the cause stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Magnus Pflaum, for appellant.

      William Kaufman, for appellee.
    November 4, 1904 :
   Per Curiam,

The contract was one of agency only, and therefore revocable at any time for good cause. A very material stipulation of the contract was that plaintiffs should “ deposit daily all money received ” to the order of defendants, and this not being done, defendants terminated the agreement and took charge of the business themselves. The finding of the court below on this point is that “ while the terminating of the contract may have resulted in loss to plaintiffs, they alone are responsible for this loss. The agreement does not provide for a commission upon all lots sold by plaintiffs—it provides for the payment to them by defendant of twenty-five per cent of moneys collected and paid over daily, which twenty-five per cent is to be in full of all demands for compensation. This agreement, at least to the extent that it requires daily payments, was almost continuously violated by plaintiffs from the time, the first payments were made to them under its terms until its termination.”

An account having been stated, it appeared that plaintiffs were indebted to defendants in a greater amount than the commissions retained by the latter. The bill therefore was properly dismissed.

Decree affirmed at costs of appellant.


source: Caselaw Access Project

author: Per Ctjriam,

license: Public Domain

text:
    First National Bank of Pittsburg v. McKinley Coal Company, Appellant.

      Equity—Findings of fact—Review—Corporations.

    A judge’s findings of fact in an equity case to the effect that debts alleged to be the debts of a corporation, and paid out of its assets, were in fact the individual debts of the officers of the corporation, will not be disturbed in the absence of manifest error.
    Argued Oct. 26, 1904.
    Appeal, No. 129, Oct. T.,. 1904, by
    defendant, from decree of C. P. No. 1, Allegheny Co., Dec. T., 1902, No. 6, on bill in equity, in case of First National Bank of Pittsburg v. McKinley Coal Company, W. H. McKinley, Ernest H. McKinley et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for discovery, etc.'
    The bill substantially averred as follows :
    1. The plaintiff is a national bank.
    2. The first named defendant is a corporation under the laws of the state of West Virginia.
    3. The other defendants are stockholders, and William H. McKinley the president, and Ernest H. McKinley the secretary and treasurer of the McKinley Coal Company.
    4. The McKinley Coal Company, chartered July, 1896, engaged in the coal business and owned towboats, coalboats, etc., to the value of $150,000.
    5. The McKinley Coal Company was indebted to the plaintiff in the sum of $11,650.21, and execution thereon was returned nulla bona.
    6. The McKinley Coal Company sold its business to the Monongahela River Consolidated Coal & Coke Company for bonds and stocks of the Monongahela River Consolidated Coal & Coke Company worth about $170,000.
    7. The defendants, William H. McKinley and Ernest McKinley, S. O. Rhodes, S. H. Pearsall, Edward A. Brahm and others, without making provision for the payments of plaintiff’s debt, distributed to themselves the stocks and bonds of the McKinley Coal Company, leaving no assets to pay the plaintiff’s debt.
    8. Ernest H. McKinley owns in his own name 1,000 shares of the preferred stock, 200 shares of the common stock which is the property of the McKinley Coal Company, and were transferred to himself while he was secretary and treasurer of the company.
    The prayer of the bill was for a discovery of the stockholders, for the application of the stocks and bonds received by the Monongahela River Consolidated Coal & Coke Company, for an injunction against Ernest H. ’ McKinley restraining him from selling or pledging the stock of the Monongahela River Consolidated Coal & Coke Company held by him.
    The findings and conclusions of law of Collier, J., are as follows:
    1. The bonds, stocks and notes received by the defendants, William H. McKinley, president, and Ernest H. McKinley, secretary and treasurer of “ McKinley Coal Company, ” from the Monongahela Company and all other property and effects of “ McKinley Coal Company” in their possession or control, or disposed of by them, are assets of “ McKinley Coal Company ” for the payment of its debts.
    2. The 940 shares of the preferred stock of the Monongahela Company, now held by the defendant, Ernest II. McKinley, in his own name, are the property of “ McKinley Coal Company,” and assets for the payment of its debts.
    3. The burden of proof is on the defendants, William H. McKinley, president, and Ernest H. McKinley, secretary and treasurer of “ McKinley Coal Company, ” to show that the debts alleged to have been paid by them were bona fide debts of the corporation, contracted by it in the usual course of business and within its power to contract.
    4. The moneys deposited in the People’s Bank in the name of “McKinley Coal Company” are prima facie the property of the corporation.
    5. The debts contracted in the name of “ McKinley Coal Company ” are prima facie the debts of “ McKinley Coal Company” for which the defendant, William H. McKinley, was personally liable, and said debts cannot be allowed as debts of the corporation, “ McKinley Coal Company, ” without proof that the same were authorized or approved by the directors thereof, or that the corporation used the property or money which was the consideration of said debts.
    6. The defendant, William H. McKinley, having the books of “ McKinley Coal Company ” in his possession and control at the time this suit was brought, and having sent them out of the state beyond the reach of the process of this court, and having refused to produce said books in court, when required by the subpoena and order of the court, alleging he did not know where they were or what liad become of them, was a gross disregard of his duty, and it must be presumed that if said books were produced they would contain evidence against the defense set up by him that he had applied all of the assets of the company to the payment of its debts, and his evidence as to the debts of the company and the payment thereof by himself must be regarded as very unsatisfactory.
    7. Having found that there are sufficient assets of u McKinley Coal Company ” in the hands of William H. McKinley and Ernest H. McKinley, or improperly disposed of, to pay the debt of the plaintiff, we must order and decree that the defendants, William H. McKinley and Ernest H. McKinley, apply so much of said assets as will be sufficient to pay the plaintiff’s judgment in full, and that the injunction heretofore granted be made perpetual.

      Error assigned was the decree of the court.

      H. L. Castle, of Stone £ Stone, with him TI. S. McKinley, for appellant.

      Levi Burd Buff, with him L. B. B. Reese, for appellee.
    November 4, 1904:
   Per Ctjriam,

There is nothing in this case but disputed questions of fact, and the judgment is affirmed on the conclusions of the court below.


author: Per Curiam,

text:
    Sutter v. Isabella Furnace Company, Appellant.

      Vendor and vendee—Statute of frauds—Memorandum in writing.

    An owner of land executed a paper in the nature of an option in which he appointed an agent to sell the land. He knew at the time that the person whom he appointed was also the agent under a special employment of the person who subsequently became the purchaser. Within the time limit of the option the agent by letter accepted the property on behalf of the purchaser. Held, that the papers constituted a sufficient memorandum in writing within the meaning of the statute of frauds.
    Argued Oct. 26, 1904.
    Appeal, No. 130, Oct. T., 1904, by-defendant, from judgment of C. P. No. 2, Allegheny Co., July T., 1902, No. 420, on verdict for plaintiff in case of Samuel Sutter v. Isabella Furnace Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Assumpsit to recover the purchase price of land. Before Frazer, P. J.
    At the trial it appeared that on February 14, 1901, plaintiff, being the owner of certain lots of ground, executed in writing the following paper:
    “ February, 1901.
    “H. S. Ayres:
    “ For the period of time ending four months from date, you are hereby appointed my sole agent for me and in my name to sell and execute contracts of sale for all that certain property situate and described as follows: Being lots Nos. 61, 62, 63, 64, 65, 66, 67, 68 and 69, situate in Etna, being a part of the Erdner plan of lots, for the price of $250 per lot. Terms $100 cash per lot on delivery of deed, balance on bond and mortgage. Possession on delivery of deed. Property to be free of all encumbrances, and title perfect. If sale is completed during said period of time, will pay you a commission of $-on price accepted by-.
    (Signed) “Samuel Sutter. [Seal] ”
    which paper was delivered to Mr. Ayres. On June 14, 1901, plaintiff received the following notice in writing:

      “ Mb. Samuel Sutteb, Etna, Pa.
    “ Dear Sir:
    “ This is to advise you that I have this day disposed of your lots in the Erdner plan of lots, Etna, Pa., on the terms specified in the options held by me. Please be ready to deliver deed upon payment of amount due you therefor.
    “Very truly,
    “ H. S. Avbes,
    “ By J. D. Avbes,
    “ for E. D. Avebs, “Executrix.”
    To which notice plaintiff replied to Mr. J. D. Ayres as follows :
    “ Dear Sir:
    “ Have received your letter of June 14th, saying you had sold my lots in the Erdner plan, and I hereby confirm your action.
    “ Yours truly,
    “ Samuel Sutteb.”
    Previous to February 14, 1901, H. S. Ayres was employed by defendant company as its agent to purchase the lots of plaintiff, together with other lots situate in the Erdner plan, for which service he was to receive the sum of $250 as compensation. That subsequent to February 14, and previous to June 14, H. S. Ayres died, and his son, J. D. Ayres, was authorized by defendant to act in the place of his father in consummating the purchase of the various lots in the Erdner plan which his father had previously been employed by defendant to purchase for it. After receiving the note of June 14 of the sale of the lots and the confirmation thereof by plaintiff, plaintiff executed a warranty deed for the lots, which was delivered, to Mr. Ayres as the agent of defendant, and by him delivered to the attorneys for defendant company. The deed so delivered, not being acceptable to the defendant company’s attorneys, was rewritten in accordance with their instructions, reexecuted and again delivered to defendant’s attorneys, who again refused to accept it, and for defendant declined to complete the purchase and take the property. The letter of J. D. Ayres to plaintiff dated June 14,1901 was written and delivered to plaintiff in response to instructions received by him from the president of defendant company in New York through its officers here.
    Verdict for plaintiff for $2562.18, subject to question of law reserved.
    The court on motion entered judgment on verdict for plaintiff.

      Error assigned was in entering judgment on the verdict.

      B. A. Reed, of Reed,, Smith, SJiaiv and Beal, with him L. H. Burnett, for appellant.
    There must be mutuality of remedy: Meason v. Kaine, 63 Pa. 335.
    The defendant could not have enforced specific performance: Hart v. Carroll, 85 Pa. 508; Allebach v. Godshalk, 116 Pa. 329; Allen v. Allen, 45 Pa. 468; Haydock v. Stow, 40 N. Y. 363.

      James S. Campbell, for appellee.
    The following authorities show clearly that the memoranda and writings in this case above named, are sufficient to comply with all the requirements of the statute: Lowry v. Mehaffy, 10 Watts, 387; McFarson’s Appeal, 11 Pa. 503; Tripp v. Bishop, 56 Pa. 424; Johnston v. Cowan, 59 Pa. 275 ; Smith & Fleck’s Appeal, 69 Pa. 474; Cadwalader v. App, 81 Pa. 194; Swisshelm v. Swissvale Laundry Co. 95 Pa. 367; Sylvester v. Born, 132 Pa. 467; McClintock v. South Penn Oil Co., 146 Pa. 144; Everhart et. al v. Dolph, 133 Pa. 628; Yerkes v. Richards, 153 Pa. 646; Witman v. City of Reading, 191 Pa. 134.
    November 4, 1904.
   Per Curiam,

The learned judge below after stating the facts proceeded, “ The sole question before us is, do the papers above quoted together constitute an instrument in writing sufficient to satisfy the statute of frauds. We think they do. The option of February, 1901, is signed by plaintiff and was delivered by him to Mr. Ayres, who in receiving it was acting as the agent of defendant under a special employment. While the option appoints Ayres plaintiff’s agent to sell the lots, it was understood by plaintiff that Ayres was acting for defendant, and that defendant would be the purchaser. The paper should therefore be treated as an option to Ayres as the representative of defendant, and would become binding upon both parties upon an acceptance by defendant. This we have in the letter of Ayres of June 14th, 1901, written at the request of defendant’s proper officers, and if anything further is required we have plaintiff’s ratification of the sale in writing and the execution and tender of a deed for the lots. It seems to us the writings above referred to are sufficient to bind plaintiff, and we see no reason why they should not bind defendant. This case is similar in many respects to Smith & Fleek’s Appeal, 69 Pa. 474 and McClintock v. South Penn Oil Co., 146 Pa. 144, and in our opinion is ruled by those cases.”

The judgment is affirmed on this opinion.


text:
    Shedden’s Estate.

      Will—Personal property—Real estate—Conversion—Intestacy.

    While a positive testamentary direction to sell real estate operates as a conversion, it does so only in furtherance of testator’s intent, and where it would impede rather than aid such intent no such effect would be given to it.
    Testatrix bequeathed one half of her estate as personal property on certain conditional limitations to her grandchild and sole heir at law and the other half of her estate as personal property to her niece, absolutely, without mentioning or enumerating any kind or class of personal property. By a subsequent clause of the will she directed that her real estate be sold by her executor and converted into money, and after the payment of a stipulated sum for a tombstone and certain specific legacies, directed that one half of the proceeds or balance go to the grandchild upon the same limitations qualified without any further directions as to the other half. Held, that the bequest to the niece of one half of the personal property absolutely did not cover the proceeds of one half of the real estate, and that as to this testatrix died intestate.
    Argued Oct. 27, 1904.
    Appeal, No. 165, Oct. T., 1904, by Harriet B. Carter, from decree of 0.0. Allegheny Co., March T., 1904, No. 147, dismissing exceptions to adjudication in Estate of Sarah J. S'hedden, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.

      Exceptions to adjudication.
    From the adjudication it appeared that:
    Sarah J. Sbedden died testate January 1, 1903, leaving to survive her, as her only next of kin a minor grandchild, Sarah Violet White. In her will she directed as follows :
    “ Second:—I will and devise one-half of my personal property to my grandchild, Sarah Violet White, the same to be held in trust for her till she arrives at the age of twenty-one years. If, however, she should die before arriving at full age, I direct that the same shall be divided equally among my nieces and nephews, the children of two brothers, John L. and William M. Carter.
    “ Third:—I will and direct that the other half of my personal property go to my niece, Harriet B. Carter.
    “Fourth:—I will and direct that my real estate situate in Allegheny city (sixth ward), in Greentree borough and Union township, Allegheny county, Pennsylvania, be sold by my hereinafter named executor, as soon as it would be advisable and advantageous and after the payment of my tombstone and the two hereinafter named legacies, I will and direct that the proceeds or balance be divided as follows, viz : One-half to my grandchild, Sarah Violet White, the same to be held in trust for her till she arrives at the age of twenty-one years, and in the event of her death before she arrives at full age then the same shall be divided equally among my nieces and nephews, the children of my brothers, John L. and William M. Carter, I give however to my said grandchild the income of her share or parts and said income shall bo paid to her or for her support and education, the same may be paid semi-annually.
    “ Fifth:—I give, devise and bequeath to Albert Hassler, the sum of two thousand dollars ($2,000) and to Elsie Hassler, the sum of one thousand dollars ($1,000), said legacies to be paid out of the proceeds of my real estate.”
    She appointed the Fidelity Title and Trust Company executor of her will. The fund for distribution consists of personalty and the proceeds of sale of testatrix’s real estate.
    The auditing judge awarded the whole proceeds of the sale of the real estate to the granddaughter of the testatrix.

      Errors assigned were in dismissing exceptions to adjudication.

      11. H. Gfoucher, with him A. Q. Johnston, for appellant.

      Alexander Gfiljillan, for appellee, was not heard.-
    November 4, 1904:
   Per Curiam,

The testatrix divided her estate into two funds, first her personalty, and secondly the proceeds of the sale of her realty. This division was in accordance with the general rule and the general understanding of the distinction made by the law. By the positive direction to sell it is true that the real estate became personalty, and the two funds thus technically merged into one for the purposes of the will if so required. But this technical conversion arises in furtherance of the testator’s intent and not to defeat it. T-he testatrix’s actual intent here is to keep the two funds separate, and such intent being clear it cannot be defeated by any artificial rule of construction.

The fact that she failed to dispose of the whole of the second fund cannot be made to defeat the intentional separation.

Decree affirmed at costs of the appellant.


text:
    Swearingen, Appellant, v. Barnsdall.

      Equity—Jurisdiction—Tenants in common—Remedy at law.

    A court of equity has no jurisdiction of a bill for an account of profits brought by one out of possession who claims to be a joint owner against an alleged cotenant until the question of title is first determined in an action at law.

      Conflict of laws—Leasehold—Question of title.

    Where a leasehold is wholly in another state, all questions as to the title and possession of the land leased must be decided according to the laws of that state.
    Argued Ocfc. 28, 1904.
    Appeal, No. 84, Oct. T., 1904, by plaintiff from decree of C. P. No. 1, Allegheny Co., June T., 1903, No. 56, dismissing bill in equity, in case of T. Brent Swearingen, Assignee of Cochran Fleming v. Theodore N. Barnsdall.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed,

      Bill in equity for discovery and for an accounting of profits from the operation of oil and gas wells. Before Brown, J.
    From the record it appeared that the court summarized the pleadings as follows:
    Upon March 6, 1903, T. Brent Swearingen, assignee of Cochran Fleming, filed a bill in equity against Theodore N. Barnsdall, alleging (a) ownership by plaintiff of half interest in the oil and gas rights in 375 acres in Wirt county, West Virginia; (/>) his rights to an accounting and payment of one half of the profits of oil and gas by the drilling operations of the defendant; (e) defendant’s refusal to account; and praying relief, decreeing ownership, right to an accounting and payment. Defendant’s answer, briefly stated, denies plaintiff’s interest in the property, his right to an accounting and payment and in bar of the action avers (a) that defendant is an innocent —and adverse—holder of the property without actual or constructive notice of plaintiff’s title; (1>~) that plaintiff’s right is barred by the statute of limitation, and (c) that his remedy to settle the disputed question of title is not in equity, but at law by an action of ejectment.
    The court found as a fact that the bill was filed by the plaintiff claiming to be the joint owner of the leasehold, but who was out of possession and had not established his title at law.
    The court also found as a fact that the leasehold covered land situated in West Virginia.
    The court’s conclusions of law were, inter alia, as follows:
    Frisbee’s appeal 88 Pa. 144, rules that a court of equity has no jurisdiction of a bill for an account of profits brought by one out of possession who claims to be a joint owner, against an alleged cotenant, until the question of title is first determined in an action at law.
    The leasehold being wholly in West Virginia, all questions of title must bo decided according to the laws of that State.
    The court dismissed the bill.

      Error assigned was the decree of the court.

      W. TI. S. Thomson, with him Thomas M. Henry and Frank Thomson, for appellant.

      • Eugene Mackey, with him T. A. Brown, Cornelius T>. Scully and James W. Lee, for appellee.
    November 4, 1904:
   Per Curiam,

The learned judge below found first that this was a bill for an account by one claiming to be a joint owner, but who was out of possession and had not established his title at law, referring to Frisbee’s Appeal, 88 Pa. 144; and secondly that the only question in the case was the title and possession of land in West Virginia. Either ground would require the dismissal of the bill.

Decree affirmed.


text:
    Baldwin Township v. Baltimore & Ohio Railroad Company, Appellant.

      Railroads—Road law—Change of public road by railroad—Equity—Injunction.

      A railroad company was engaged in relocating its road. The change in its location involved the occupying of a portion of a public road with its tracks, the closing of an established grade crossing, the substituting of a new one about five hundred feet from the old and the construction of a new road between the old and new crossings. The trial court held that the new road would be more dangerous than the old road and that the new location was not the most favorable that could reasonably be secured and granted a preliminary injunction to restrain the railroad company from making the changes. Held, to be error and that the ease was not one for preliminary injunction.
    Argued Nov. 8, 1904.
    Appeal, No. 9, Oct. T., 1904, by defendant from decree of C. P. No. 2, Allegheny County, Oct. T., 1904, No. 1816, granting a preliminary injunction in case of Baldwin Township v. Baltimore & Ohio Railroad Co.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Bill in equity to restrain the defendant railroad company from encroaching upon and changing the location of a public road.

      The facts appear by the opinion of the court below, Frazer, P. J., which was as follows:
    The bill in this case seeks to restrain defendant railroad company from interfering at two points with a public road in plaintiff township, known as Streets Run road. The first point complained of is at Rand station. At this point the railroad company is taking and occupying with its tracks a portion of the township road, and is relocating the road by moving it towards the creek. At this place it appears the only change when the improvement is completed will be the removal of the road a few feet east from its present location, and the testimony of the railroad engineers is to the effect that the road when finished will be fully as wide and perfect as it was before the change. The new location not being any more unfavorable than the old, the injunction heretofore granted should be modified, and to the extent that it applies to the work at this point should be dissolved.
    The other point of controversy is near Willock station, the change there involving the occupying of a portion of a public road by the railroad company’s tracks, the closing of an established grade crossing, the substituting of a new one about five hundred feet distant and the construction of a new road between the old and new crossings. The road proposed to be constructed in lieu of the one taken lies between a siding which adjoins the main tracks of defendant company and the bank of Streets Run, which at this point is from ten to twelve feet above the bed of the creek, and in our opinion would be more dangerous than the old road, both on account of the shifting of cars on the siding and their obstructing a view of the tracks at and below the crossing. From the testimony now before us we are not satisfied that the new location at this point is the “ most favorable ” that can reasonably be secured. This being an important road and considerably traveled, we are of opinion this case should be fully heard before determining definitely whether a perpetual injunction should be issued restraining defendants from making the changes proposed at Willock, and that in the meantime matters should remain in statu quo. Perhaps before the final hearing the parties can agree on a new location which will obviate the danger which now seems apparent from the present proposed new location.

      The court entered a decree continuing the injunction restraining the defendants from changing or interfering with the changed road at or near Willock station until further order of the court.

      Error assigned, among others, was the decree continuing the preliminary injunction. .

      John S. Wendt, with him Johns McQleave, for appellant,
    cited: Penna. R. R. Co.’s App., 128 Pa. 509; Appeal of the Township of North Manheim, 22 W. N. C. 149 ; Parke’s App., 64 Pa. 137; Railroad Co. v. Young, 33 Pa. 175; Pittsburg, etc., Ry. Co. v. Commonwealth, 101 Pa. 192; Brown’s App., 62 Pa. 17; Phila’s App., 78 Pa. 33; Minnig’s App., 82 Pa. 373.

      William B. Rodgers, with him II. M. Stilley, for appellee.
    November 4, 1904 :
   Per Curiam,

The courtis of opinion that this is not a case for preliminary injunction.

Decree reversed and injunction dissolved.


text:
    Cruzan v. Hutchison, Appellant.

      Judgment—Opening judgment—Burden of proof—Oath against oath.

    A mere conflict of evidence is not enough to require the court to open a judgment. If there is reason to question the credibility of witnesses or other matter of substantial doubt, the court as chancellor may send the matter to a jury, but is not bound to do so, and in general will not do so, unless the evidence is such that the jury ought and probably would find in favor of the defendant.
    A rule to open judgment is properly discharged where the affidavit in support of the rule and the depositions of the defendant are in effect that the note was given chiefly as collateral security to plaintiff against loss in certain matters, that no default had taken place, and that the only debt due plaintiff was a sum specified, much less than the amount of the note, and this proof is met by a sworn answer and depositions in which the plaintiff claims that the note represented the real debt.
    Argued Oct. 28, 1904.
    Appeal, No. 112, Oct. T., 1904, by defendant, from order of C. P. No. 1, Allegheny County, Dec. T., 1901, No. 135, discharging rule to open judgment in case of E. E. Cruzan v. C. A. Hutchison.
    Before Mitchell, C. J., Dean, Fell, Brown, Potter and Thompson, JJ.
    Affirmed.
    Rule to open judgment. Before Macearlane, J.
    The facts sufficiently appear by the opinion of the Supreme Court.

      Error assigned was the order of the court discharging the rule to open the judgment.

      W. K. Jennings, with him I). 0. Jennings, for appellant.

      Albert B. Smith, for appellee, was not heard.
    November 4, 1904 :
   Per Curiam,

Judgment being entered on a judgment note the defendant obtained a rule to open on affidavit that the note was given chiefly as collateral security to plaintiff against loss in certain matters, that no default had taken place, and that the only debt due plaintiff was a sum specified, much less than the amount of the note. These averments were supported by the appellant in his deposition. On the other hand, the plaintiff by sworn answer to the rule and in his deposition claimed that the note represented the real debt. The case thus came before the court practically upon oath against oath and the written instrument.

The rule in such cases is well settled. A mere conflict of evidence is not enough to require the court to open the judgment. If there is reason to question the credibility of the witnesses or other matter of substantial doubt, the court as chancellor may send the matter to a jury but is not bound to do so, and in general will not do so, unless the evidence is such that the jury, ought and probably would find in favor of the defendant: Jenkintown Nat. Bank v. Fulmor, 124 Pa. 337 ; Cloud v. Markle, 186 Pa. 614.

Judgment affirmed.


author: Mb. Justice Thompson,

text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Negligence—Railroads—Safety gates—Ordinance—Evidence.

    Where a railroad is the dividing line between a city and a township, an ordinance of the city requiring the railroad company to erect a safety gate on the township side of a grade crossing, is inadmissible in evidence in an accident case, even if the purpose of the offer of the ordinance is merely to show the dangerous character of the crossing.
    Argued Oct. 10, 1904.
    Appeal, No. 104, Oct. T., 1904, by defendant, from judgment of O. P. Cambria Co., June T., 1903, No. 248, on verdict for plaintiff in ease of Catherine Burns v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Bjbown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before O’Connor, P. J.
    Defendant presented, inter alia, the following points:
    4. That the city of Johnstown did not have authority to require safety gates to be erected and operated on each side of the road, inasmuch as the southerly side thereof was in Lower Yoder township, and the court is requested to strike out the testimony relating thereto. Answer: The only effect this testimony could have is that of showing the dangerous character of the crossing. That the city of Johnstown attempted to make .the defendant company erect safety gates there we say could only go to indicate to you the dangerous character of the crossing. You have no right to hold the railroad company responsible for not erecting safety gates because they would have been one means of warning persons about to go over the crossing of the dangerous character of the crossing. The city could not have compelled the railroad company to have erected safety gates in Lower Yoder township, because that territory is not within the jurisdiction of the city of Johnstown. This ordinance can only go to show the dangerous character of the crossing, and we submit this testimony to you for that purpose only. [4]
    7. That'under all the evidence the- verdict should be for the defendant. Answer: We refuse that point. As we view the case, the question is purely a question for the jury, and if we were to take the case from the jury we feel that we would be guilty of error. There are times when it becomes the duty of the court to say that the plaintiff has failed to introduce such evidence as would fasten responsibility upon the defendant, and when it would be proper to direct a verdict for the defendant or to direct a compulsory nonsuit because of the insufficiency of the testimony introduced, which would amount to the same as if no evidence at all were introduced. Therefore, we refuse this point. [7]
    8. That positive proof that the whistle was sounded at the usual place and that the bell was being rung is of higher value than negative testimony-of witnesses who did not hear it, and it should prevail.
    The Court: In this connection we say to you that if you find, from the evidence, that the whistle was blown and the bell rung, at such place and in such manner that the decedent must have heard it and been warned, then, of course, it does not matter how many people did not hear it; but if the whistle was blown, as testified to by the witnesses, at a place where it is usual to blow the whistle, and the bell was rung, if the warning did not reach that crossing and could not be heard by persons going over it—was not of such character as the law contemplates—if the warning was not calculated to warn and did not warn persons passing over, it was unavailing. That question is entirely for you. If you find that the whistle was sounded after the train crossed the Morrellville crossing, and yet persons going over the Brownstown crossing could have heard and must have heard it, it was not necessary to have the whistle blown again. The fact wo want to impress you with is whether the whistle, which evidently was sounded after leaving “ SX ” tower that morning, must have reached the ears of persons going over the Brownstown crossing, for if the persons going over there took their chances there could be no recovery. On the other hand, it was the duty of the persons conducting the train to give such warning as would be effective, and if they did not give such warning the defendant company would be responsible for their negligent acts. [8]
    Verdict and judgment for plaintiff for $12,000. Defendant appealed.

      Errors assigned, among others, were (4, 7, 8) above instructions, quoting them.

      II. W. Storey, for appellant.
    Under no principle of law can a document, which is admitted to be invalid, be used as testimony for any purpose : Barnes v. Mobile, 19 Ala. 707.

      E. T. McNeelis, with him William, Williams, for appellee.
    The ordinance complained of was introduced simply for the purpose of showing the dangerous character of the crossing, and not for creating an additional liability upon the defendant: Herron v. Pittsburg, 204 Pa. 509 ; Penna. Co. v. James, 81* Pa. 194; Lederman v. Penna. R. R. Co., 165 Pa. 118.
    December 31, 1904:
   Opinion-by

Mb. Justice Thompson,

Appellee’s husband was killed while crossing appellant’s railroad at what is known as the Brownstown crossing in the suburbs of Johnstown, and for his loss the appellee brought this suit.

The deceased, who lived a short distance from that crossing-left his home on January 9, 1903, at 6.30 in the morning to go to the Cambria Steel Works where he was employed. The morning was dark and there was a slight fall of snow. He reached the crossing and while passing over it was struck by a moving train of appellant and instantly killed. The southerly line, of appellant’s railroad is the dividing line between Lower Yoder township and the city of Johnstown and the road ending with McConaghy street is about sixty-six feet within the limits of the latter place. The crossing was one open to the view of the men in charge of trains and to people approaching it. There was conflicting testimony as to the speed of the train which caused the accident, some of the witnesses made it from forty to forty-five miles per hour and some made it less. It certainly, however, was not less than thirty miles per hour.

Appellant’s negligence, it was contended, consisted in approaching this alleged dangerous crossing, at a high rate of speed, without giving signals within a propér distance. The dangerous character of the crossing, the high rate of speed, aiid the absence of the proper signals were the elements which constituted appellant’s alleged negligence.

As part of the proofs tending to establish the dangerous character of the crossing, appellee offered in evidence an ordinance of the councils of the city of Johnstown requiring the appellant to erect and maintain safety gates at the crossing in question. This ordinance provides that the appellant company is required: “ to erect, maintain and operate safety gates at the intersection of the Pennsylvania railroad with the public road known as the Brownsville road in the sixteenth ward. Said safety*gates shall be maintained and operated on each side of the railway and shall be closed at the approach of all trains or locomotives to said intersection and opened as soon as the same shall have passed.”

The learned trial judge in answer to the appellant’s fourth point said :

“ The only effect this testimony (referring to the ordinance) could have is that of showing the dangerous character of the crossing. That the city of Johnstown attempted to make the defendant company erect safety gates there we say could only go to indicate to you the dangerous character of the crossing. You have no right to hold the railroad company responsible for not erecting safety gates because they would have been one means of warning persons about to go over the crossing of the dangerous character of the crossing. The city could not have compelled the railroad company to have erected safety gates in Lower Yoder township because that territory is not within the jurisdiction of the city of Johnstown. This ordinance can only go to show the dangerous character of the crossing and we submit this testimony to you for that purpose only.”

The ordinance was admittedly invalid and beyond the power of councils to pass it. At most it amounts to nothing more than expressions of individual opinions of the members of councils that they thought the crossing dangerous. If each member had upon the floor of councils declared such to be his opinion and a minute had been made to that effect, clearly such minute would not be competent evidence to establish the dangerous character of the crossing. The question was one of fact for the jury, and that fact was not to be determined by opinions of members of councils expressed there. The ordinance was invalid, without authority and ineffective, and imposed no duty or obligation upon appellant. So void and inoperative by reason of the want of power to make the same, by no process of reasoning can it be said to be competent proof tending to prove the dangerous character of the crossing. This was not a case where the alleged negligent act done is in violation of a valid existing ordinance relating to the act, and where it alone is not evidence of negligence but where it, with the other circumstances, is for the jury in determining the question of negligence.

In the case of Ubelmann v. American Ice Company, 209 Pa. 398, where an ordinance in regard to elevators had been offered in evidence, Mr. Justice Brows', in discussing ordinances as evidence says:

“ Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion on a matter as to which the municipal authorities had acted, that the defendant was negligent, and are to be taken into consideration with all the other facts in the case.”

And after discussing the various cases upon the subject he says:

“The only effect of the introduction of these ordinances was to confuse and mislead the jury. Though there was no violation of them, so far as they related to the specific act. of negligence charged, zealous counsel may have led the jury to believe that there was, and to the undiseriminating mind such a conclusion was more than possible. Even if there had been a violation of other sections of the ordinance of 1900 than the clause quoted, such violation would have had no relevancy to the issue the jury were trying.”

Thus ordinances may be competent for a limited purpose and then only in connection with other evidence. As they involve duties in regard to the municipality or obligations relating to them, it is aptly said in the opinion, supra, they are not admissible as substantive or sufficient proof but as evidence of municipal expression of opinion. Within authoritative action, they may be evidence of such opinion, but beyond that they cannot be. A void ordinance is no ordinance and is not an expression of any opinion. It is a tabula rasa and has no significance.

The learned trial judge erred in admitting the alleged ordinance in evidence and in liis answer to appellant’s fourth point, and the judgment must, therefore, be reversed and a new trial awarded. But it may be proper to add that the duty to stop, look and listen is an unbending rule and when a person is killed at a crossing, the presumption arises that he has done his duty in that regard. That proof intended to be confirmatory of the performance of a duty by stopping, looking and listening, does not when so intended, necessarily rebut the presumption: that the rate of speed at which a train may pass a crossing, must in view of its environments and locality, be shown to be dangerous and under the circumstances such as would constitute negligence arising from a failure of duty imposed by law; that a jury is not authorized to determine the speed of an approaching train and having done so, then arbitrarily fix such speed as the standard that would be dangerous ; that there is no failure of duty if proper signals be given of a train approaching a crossing at a rate of speed that, in view of its locality and surroundings may be warranted, and proofs of such signals to negative negligence are not to be disregarded by a jury upon its arbitrary determination of the speed as dangerous.

The judgment is reversed and a venire de novo is awarded.


author: Mr. Justice Fell,

text:
    Harvey, Appellant, v. Erie Railroad Company.

      Negligence—Railroads—“Stop, look and listen”—Contributory negligence —Safety gates.

    Tlxe duty of a traveler on a highway to continue to look as he approaches a grade crossing is not performed by looking in one direction when he can see in both.
    In an action against a railroad company to recover damages for personal injuries it appeared that plaintiff while riding on a one-horse dray on a narrow street, stopped, looked and listened when within eighteen or twenty feet of a railroad crossing with which he was familiar. At this place he could see east 250 or 300 feet in the direction from which a train was approaching. The view of the tracks to the east extended as he approached them and at a distance of eight feet from them, he could have seen east for more than 1,000 feet. He drove on without looking again to the east until his horse was on the first track, when he saw a train 100 feet from him running at the rate of twelve or fifteen miles an hour. About 200 feet west of this crossing there was a crossing at which there were safety gates, the tops of which could be seen over the houses on the west side of the street. These gates were up when the plaintiff stopped. When he started to cross the tracks he looked at them and continued to look at them as he proceeded, relying on the action of the watchman at that crossing to notify him of danger. Held, that the plaintiff was guilty of contributory negligence, and that a nonsuit was properly entered.
    Argued Oct. 12, 1904.
    Appeal, No. 2, Oct. T., 1903, by plaintiff, from order of O. P. Venango Co., Jan. T., 1903, No. 39, refusing to take off nonsuit in case of Scott Harvey by Ms next friend, Thomas B. Harvey v. Erie Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Criswell, P. J.
    The facts appear by the opinion of the Superior Court.

      Error assigned was refusal to take off nonsuit.

      Edmond C. Breene, and William J. Breene, for appellant,
    cited: Davidson v. Ry. Co., 179 Pa. 227 ; Callahan v. Traction Co., 184 Pa. 425; McCusker v. Penna. R. R. Co., 198 Pa. 540; Doud v. Delaware, etc., R. R. Co., 203 Pa. 227 ; Bard v. Phila. & Reading Ry. Co., 199 Pa. 94; Newman v. Del., Lack. & W. R. R. Co., 203 Pa. 530.

      W. Id. Forbes, with him J. S. Carmichael, for appellee,
    cited: Blight v. R. R. Co., 143 Pa. 10; Carroll v. Penna. R. R. Co., 12 W. N. C. 348; Moore v. R. R. Co., 108 Pa. 349; Penna. R. R. Co. v. Bell, 122 Pa. 58; Marland v. R. R. Co., 123 Pa. 487; Myers v. B. & O. R. R. Co., 150 Pa. 386.
    December 31, 1904:
   Opinion by

Mr. Justice Fell,

The plaintiff, riding on a one-horse dray on a narrow street, stopped, looked and listened when within eighteen or twenty feet of a railroad crossing with which he was familiar. At this place he could see east 250 or 300 feet in the direction from which a train was approaching. The view of the tracks to the east extended as he approached them and at a distance of eight feet from them he could have seen east for more than 1,000 feet. He drove on without looking again to the east until his horse was on the first track, when he saw a train 100 feet from him running at the rate of twelve or fifteen miles an hour. About 200 feet west of this crossing there was a crossing at which there were safety gates, the tops of which could be seen over the houses on the west side of the street. These gates were up when the plaintiff stopped. When he started to cross the tracks he looked at them and continued to look at them as he proceeded, relying on the action of the watchman at that crossing to notify him of danger.

It is evident from the plaintiff’s testimony that he drove in front of amoving train which he either saw or could have seen before placing himself in peril. He could have seen it before he started to cross and he could have seen it as he approached the tracks. The duty to continue to look as he approached the crossing was not performed by looking in one direction when he could see in both : Gangawer v. Phila. & Reading Railroad Co., 168 Pa. 265. The fact that the safety gates were up at another crossing may have given him some assurance of safety but any reliance upon them as a warning was at his own risk. They were not intended to warn anyone at this crossing. There might be no occasion to lower them at all if no one was on the street where they were situated, and there was no duty to lower them when a train was coming from the east in time to warn travelers at a crossing 200 feet distant.

The judgment is affirmed.


text:
    Harvey, Appellant v. Erie Railroad Company.
    Argued Oct. 3, 1904.
    Appeal, No. 3, Oct. 1'., 1903, by plaintiff, from order of C. P. Venango Co., Jan. T., 1903, No. 39, refusing to take off nonsuit in case of Thomas B. Harvey v. Erie Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    December 31, 1904:
   Opinion bt

Mr. Justice Fell,

The appellant in this case is the father of the appellant in Harvey v. Railroad Co., 210 Pa. 95, and the cause of action is the same in each case. For the reasons stated in that opinion the judgment is affirmed.


text:
    Ihrig, Appellant, v. Erie Railroad Company.

      Negligence—Railroads—“Stop, look and listen”—Contributory negligence.

    The rule that a person must stop, look and listen before going upon tracks of a railroad, is not a rule of evidence, but a rule of law peremptory, absolute and unbending.
    Plaintiff while riding in a one-horse buggy with the side curtains down, without stopping and looking for the approach of a train, drove at a slow trot on the tracks of a railroad in a city as the safety gates were coming down. These gates were twenty-five feet apart. The first struck the top of.the buggy and the second was fully down when the horse reached it. The buggy was struck by a shifting engine on the second track almost immediately after the horse stopped. The time between the stopping of the horse and the collision was estimated by the plaintiff as a second or a second and a half; by one of the witnesses as a quarter of a minute, and by another witness the collision was said to have occurred immediately after the stopping. Seventy-four feet from the crossing the plaintiff was passed by a mail carrier in an open cutter. When this man was at the edge of the tracks and thirty or forty feet in advance of the plaintiff, the flagman gave a signal to come on. He went on and crossed in safety. The plaintiff was unable to say that the signal had been intended for him and only that it was given in his direction. At any point within twenty feet of the tracks the plaintiff had a clear view of them for 700 feet in the direction from which the engine came. The gates were being lowered as he drove on the crossing but he did not observe them until the horse was on the first track. Held, that the plaintiff was guilty of contributory negligence inasmuch as he did not stop, look and listen and that 'a nonsuit was properly entered.
    Argued Oot. IB, 1904.
    Appeal, No. 149, Oct. T., 1904, by plaintiff, from order of C. P. Venango Co., Jan. T., 1904, No. 1, refusing to take off nonsuit, in case of George W. Ihrig v. Erie Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries'. Before Criswell, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      Robert F. Glenn, with him Peter M. Speer, for appellant.
    Plaintiff contends that he was not guilty of contributory negligence, under all the circumstances, in that he did not stop when he looked and listened as he approached the crossing, and thereby ignored the direction of the watchman : Fisher v. Ry. Co., 131 Pa. 292; Fennell v. Harris, 184 Pa. 578; Ayers v. Ry. Co., 201 Pa. 124 ; Mendenhall v. R. R. Co., 202 Pa. 427; Custer v. R. R. Co., 206 Pa. 529.
    The plaintiff contends that his failing to stop when he looked and listened, even if held to be negligent, did not contribute to his injury: Mendenhall v. R. R. Co., 202 Pa. 427; Custer v. R. R. Co., 206 Pa. 529.

      Wm. IL Forbes, with him J. S. Carmichael, for appellee.
    The failure to stop before crossing a railroad track is negligence per se, and this is for the court, the rule is unbending: Penna. R. R. Co. v. Beale, 73 Pa. 504; North Penna. R. R. Co. v. Heileman, 49 Pa. 60 ; Lehigh Valley R. R. Co. v. Greiner, 113 Pa. 600; Aiken v. R. R. Co., 130 Pa. 380 ; Blight v. R. R. Co., 143 Pa. 10; Myers v. R. R. Co., 150 Pa. 386; Lynch v. Erie City, 151 Pa. 380; Smith v. R. R. Co., 160 Pa. 117; Seifred v. R. R. Co., 206 Pa. 399 ; Custer v. R. R. Co., 206 Pa. 529; Fleschut v. Lehigh Valley R. R. Co., 206 Pa. 348; Carroll v. Railroad Co., 12 W. N. C. 348; Moore v. Railroad Co., 108 Pa. 349; Penna. R. R. Co. v. Bell, 122 Pa. 58; Merland v. Railroad Co., 123 Pa. 487.
    December 31, 1904 :
   Opinion by

Mr. Justice Fell,

The plaintiff, riding in a one-horse buggy with the side curtains down, without stopping and looking for the approach of a train, drove at a slow trot on the tracks of the defendant company in the city of Franklin as the safety gates were coming down. These gates were twenty-five feet apart. The first struck the top of the buggy and the second was fully down when his horse reached it. The buggy was struck by a shifting engine on the second track almost immediately after the horse stopped. The time between the stopping of the horse and the collision was estimated by the plaintiff as a second or a second and a half; by one of the witnesses as a quarter of a minute, and by another witness the collision was said to have occurred immediately after the stopping. Seventy-four feet from the crossing the plaintiff was passed bjr a mail carrier in an open- cutter. When this man was at the edge of the tracks and thirty or forty feet in advance of the plaintiff, the flagman gave a signal to come on. He went on and crossed in safety. The plaintiff was unable to say that the signal had been intended for him and only that it was given in his direction. At any point within twenty feet of the tracks the plaintiff had a clear view of them for 700 feet in the direction from which the engine came. The gates were being lowered as he drove on the crossing but he did not observe them until the horse was on the first track.

The appellant’s first contention is that the circumstances of the case relieve him from the charge of contributory negligence ; his second, that his failing to stop did not contribute to his injury because he could have escaped the danger in which he was placed if the flagman had not lowered the gates. In support of the first it is argued that the rule that a traveler before crossing the tracks of a steam railroad must stop, look and listen for the approach of a train is not a fixed rule to be observed under all circumstance but only a reasonable requirement, the nohobservance of which, while prima facie evidence of negligence, may be explained and excused. That this proposition cannot be sustained under the decisions is clear. There is no break nor wavering in the line of cases extending back nearly forty years, which hold that the rule is inflexible and admits of no exceptions and that a failure to observe it is not mereljr evidence of negligence but is negligence per se. There has been no clearer statement of the rule than that made by the pi’esent Chief Justice in Aiken v. Penna. Railroad Co., 130 Pa. 380 : “ It is not a rule of evidence but a rule of law, peremptory, absolute and unbending: and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That the failure to stop is not merely evidence of negligence but negligence per se, has been said so often, from North Penna. Railroad Co. v. Heileman, 49 Pa. 60, to Greenwood v. Phila., etc., Railroad Co., 124 Pa. 572, that to cite the cases would be wearisome.”

Iii Greenwood v. Railroad Co., 124 Pa. 572, and Lake Shore, etc., Railway Co. v. Frantz, 127 Pa. 297, it was said that the neglect of the company did not relieve the plaintiff from the performance of his duty, and the rule was applied where reliance had been placed on the fact that the safety gates at a crossing were up. In Fennell v. Harris, 184 Pa. 578, and Ayers v. Pittsburg, etc., Railway Co., 201 Pa. 124 and other cases, in which the action of a watchman at a crossing in a measure excused what would otherwise have been negligence on the part of the plaintiff, the duty to stop, look and listen had been fully performed. In Mendenhall v. Pliila., etc., Railroad Co., 202 Pa. 427 the plaintiff had safely crossed the tracks and the accident was caused by a new and unexpected danger not connected with the running of the trains. His negligence not having contributed to the accident was said to be immaterial.

The second ground is equally untenable. The direct and immediate cause of the plaintiff’s injury was his reckless disregard of a rule of common prudence and of law. From the first danger he never escaped and there was no intervening cause disconnected with it. Nor can it be said that he was lured into a position of peril and kept there by the gates. He got into danger through his negligence in assuming that the way was safe for him because a signal had been given when another driver was at the edge of the tracks, thirty or forty feet in advance. That he was shut in was not the fault of the flagman, who had no knowledge of his attempt to cross, but the inevitable result of his driving under the descending gates.

The judgment is affirmed.


author: Mb. Justice Fell,

text:
    Simpson v. Pennsylvania Railroad Company, Appellant.

      Negligence—Damages—Loss of earning power—Evidence.

    It is error to submit to a jury tile loss of earning power as an element of damages in the absence of any proof upon the subject. But such proof need not be clear and indubitable to entitle it to go to the jury. Except where a fixed compensation is paid for services rendered, there can be no certainty. The age of the person, his situation in life, his condition of health and habits of industry, and profits derived from the management of a business resulting from the personal attention and labor of the owner as distinguished from profits arising from invested capital, may in proper cases be considered in determining earning power.
    In an action to recover damages for personal injuries it appeared that the plaintiff was engaged in the business of producing oil. lie owned a number of leases of oil lands upon which he was operating, and was also the treasurer of gas companies in which he was interested. His whole time and attention were given to the management of his oil business and to assisting in the management of the gas companies. His injuries it was claimed entirely disabled him from attending to any business. A witness shown to have a special knowledge of the plaintiff’s business and of the manner in which he conducted it and the time and attention given to it testified that his services were worth from 15,000 to $10,000 a year. The instruction in the charge was that while this testimony was meager and indefinite it should be considered by the jury, but they were cautioned that unless satisfied that from the whole testimony they could reach a proper conclusion as to the loss of earning power, they should make no allowance therefor. Held, that the instruction was proper.
    Argued Oct. 13, 1904.
    Appeal, No. 159, Oct. T., 1904, by defendant, from judgment of C. P. Venango Co., Nov. T., 1903, No. 14, on verdict for plaintiff in case of S. H. Simpson v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, J J.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Criswell, P. J.
    At the trial the defendant’s liability was admitted, and the only question raised was as to the damages. The-evidence tended to show that plaintiff’s injuries were such as to disable him entirely from attending to any business. Plaintiff’s occupation was that of operating oil leases and participating in the management of gas companies.
    The court charged in part as follows :
    [The only witness called on the part of the plaintiff who has endeavored to fix a value on the services rendered by him is Mr. Brundred. He stated that he knew in a general way the work that was being performed by the plaintiff prior to the time of his injury; knew of .his business ; to what he devoted his time ; the manner and extent to which his time was occupied by his work; and he says that the services performed by him in this respect were worth anywhere from $5,000 to $10,000 a year. That is rather indefinite, but it is all there is on the subject and, as we understand, it is proper for your consideration.] [4]
    Verdict and judgment for plaintiff for $41,200. The plaintiff on a motion for a new trial remitted all in excess of $22,000. Defendant appealed.

      .Error assigned among others was (4) portion of charge as above, quoting it.

      John M. Greer, with him O. I. Heydrick and J. L. Neshit, for appellant,
    cited: Goodhart v. Penna. R. R. Co., 177 Pa. 1; McKenna v. Gas Co., 198 Pa. 31; McHugh v. Schlosser, 159 Pa. 480; Wallace v. Penna. R. R. Co., 195 Pa. 127.

      Peter M. Speer, with him Isaac Ash, for appellee,
    cited : Baker v. Irish, 172 Pa. 528; Hoon v. Traction Co., 204 Pa. 869; Thompson v. Boyle, 85 Pa. 477; McKenna v. Gas Co., 201 Pa. 146.
    December 31, 1904:
   Opinion by

Mb. Justice Fell,

The plaintiff while a passenger was injured in a collision on the defendant’s road. The defendant’s liability was conceded, and the contest at the trial was as to the extent and permanency of the plaintiff’s injuries and the damages resulting from the permanent loss of earning power. The only question now to be considered is that raised by the third specification of error. The court was asked to charge that no competent evidence of the loss of earning power had been produced by the plaintiff and that no allowance should be made therefor by the jury. This request was refused, but the jury was referred to what had been said on the subject in the general charge. Testimony as to earning power had been admitted without objection, and the sufficiency of the testimony was the only matter that could properly be raised by the point presented.

The plaintiff was engaged in the business of producing oil. He owned a number of leases of oil lands upon which he was operating, and was also the treasurer of gas companies in which he was interested. His whole time and attention were given to the management of his oil business and to assisting in the management of the gas companies. His injuries, it was claimed, entirety disabled him from attending to any business. A witness shown to have a special knowledge of the plaintiff’s business and of the manner in which he conducted it and the time and attention given to it testified that lfis services were worth from $5,000 to $10,000 a year. The instruction in the charge was that while this testimony was meager and indefinite it should be considered by the jury, but they were cautioned that unless satisfied that from the whole testimony they could reach a proper conclusion as to the loss of earning power, they should make no allowance therefor.

It is error to submit to a jury the loss of earning power as an element of damages in the absence of any proof upon the subject. But such proof need not be clear and indubitable to entitle it to go to the jury. Except where a fixed compensation is paid for services rendered, there can be no certainty. The age of the person, his situation in life, his condition of health and habits of industry, and profits derived from the management of a business resulting from the personal attention and labor of the owner, as distinguished from profits arising from invested capital, may, in proper cases, be considered in determining earning power: McHugh v. Schlosser, 159 Pa. 480; Wallace v. Penna. R. R. Co., 195 Pa. 127 ; McKenna v. Citizens’ Nat. Gas Co., 198 Pa. 31. The testimony submitted to the jury in this case went to show the money value of work done by the plaintiff before Ms injury. It could not have been withheld from the jury, nor could it have been submitted in a manner to guard more fully and fairly the rights of the defendant. The case was tried with marked ability and the learned judge property secured, by requiring the filing of a remittitur, the reduction of what he considered an excessive verdict to a reasonable amount.

Judgment affirmed.


author: Mr. Justice Brown,

text:
    Bridgewater Borough v. Big Beaver Bridge Company, Appellant.

      Constitutional law—Title of statute—Statutes—Act of May 3,1878, P. L. 41.
    The Act of May 3, 1878, P. L. 41, entitled “A supplement to an act entitled ‘An act to authorize the acquisition by the several counties of this commonwealth, for the use of the county, of bridges, erected over rivers, creeks and rivulets, and for the abolition of tolls thereon,’ approved the eighth day of May, 1876, designed to amend the third section of the said act, and also to amend the ñrst proviso of the fifth section of said act, so that not more than fifteen thousand dollars shall be paid by any one county for the purchase of any such bridge,” does not violate section 3, article 3, of the constitution of Pennsylvania relating to the title of statutes. The title of the act gives sufficient notice to the county commissioners of the amendment which takes away from them the right of approval of the report of the viewers.
    Argued Oct. 19, 1904.
    Appeal, No. 184, Oct. T., 1904, by defendants, from decree of C. P. Beaver Co., Sept. T., 1904, No. 1, on bill in equity in ease of Bridgewater Borough v. President, Managers and Company for erecting a bridge over Big Beaver Creek at or near Wolf Lane, in the county of Beaver, a corporation, James G. Mitchell, E. S. Weyand and Ira Foster, toll takers, agents, collectors or employees.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Wilson, P. J.
    The bill prayed for an injunction to restrain tlie defendant and its agents from collecting tolls for the use of the defendant’s bridge over Big Beaver creek, between tlie boroughs of Bridgewater and Rochester, on the ground that the said bridge had been taken by the county of Beaver under the right of eminent domain, and was a free county bridge. The defendants denied tlie validity of the proceedings on the ground that the Act of May 3, 1878, P. L. 41, was insufficient in title and unconstitutional. The court awarded the injunction prayed for by the bill.

      Error assigned was the decree of tlie court.

      Agnew Hice, with him J. M. Buchanan and E. S. Weyand, for appellant.
    Absolutely no place is left by the act of 1878 for the exercise of discretion by the county commissioners. This is a change in the method of administering county finances and no notice of such legislative intent is to be found in the title of the act: Stegmaier v. Jones, 203 Pa. 47 ; Dailey v. Potter County, 203 Pa. 593; In re Sugar Notch Borough, 192 Pa. 349.

      James H. McQreery, with him W. A. McQonnel, for appellee.
    If a supplement be germane to the original bill, it is sufficient in the title, to style it as a supplement to the original act: R. R. Co.’s App., 77 Pa. 429.
    If doubt arises it is to be resolved in favor of the constitutionality of the act: Com. v. Butler, 99 Pa. 535; Kachell v. Moyer, 11 Pa. Dist. Rep. 291; Mt. Joy Boro. v. Lancaster, etc., Turnpike Co., 182 Pa. 581.
    If the title of the act fairly gives notice of the subject so as to reasonably lead to an inquiry into the body of the act it gives due notice of the contents of act: Mauch Chunk v. McGee, 81 Pa. 433; Commonwealth v. Sellers, 150 Pa. 32; Millvale Boro. v. Evergreen Ry. Co., 131 Pa. 1; Allegheny County, Home’s Case, 77 Pa. 77; Com. v. Hazen, 207 Pa. 52.
    December 31, 1904:
   Opinion by

Mr. Justice Brown,

The proceedings to condemn the bridge of the appellant company were instituted in the court of quarter sessions of Beaver county under the Act of May 8, 1876, P. L. 131, as amended by the Act of May 3, 1878, P. L. .41. The original act is entitled “ An act to authorize the acquisition by the several counties of this commonwealth for the use of the county, of bridges erected over rivers, creeks and rivulets, and for the abolition of tolls thereon.” The supplement of 1878, according to its title, is “ designed to amend the third section,” of the act of 1876.

No question is raised as to the constitutionality of the act of 1876, and if the proceedings had been conducted under it as unamended and in accordance'with its requirements, we do not understand that any question would be raised by the appellants as to their validity. After the viewers appointed by the court to pass upon the necessity of a free bridge and the abolition of tolls on it have reported, the third section of the act provides: “If upon the report of the viewers it shall he unanimously approved by the county commissioners, and it shall also appear to the court and grand jury that such bridge ought to be declared a county bridge, and is necessary for the public accommodation, and that payment of tolls thereon is an unjust burden on the traveling public and the people of the township or townships near where the same is located, the report shall he approved and the damages shall he payable out of the comity treasury, and the said bridges shall be taken possession of by the county commissioners, and shall thenceforth he declared a county bridge, and all tolls for travel thereon shall cease.” By the 1st section of the act of 1878 there is substituted for this: “ If upon the report of the viewers, it shall appear to the court and grand jury that such bridge ought to be declared a county bridge, and is necessary for the public accommodation, and that payment of tolls thereon is an unjust burden on the traveling public and the people of the township or townships near where the same is located, the report shall be approved, and the damages shall be payable out of the county treasury, and the said bridge or bridges shall he taken possession of by the county commissioners, and shall thenceforth he declared a county bridge, and all tolls for travel thereon shall cease.” The contention of the appellants, as they state it, is that the amendment, which takes from the county commissioners the right of approval of the report of the viewers, if read into the act of 1876 as a substitute for its third section, cannot stand under the title, as it fails in the constitutional requirement that the subject of the act shall be therein clearly stated.

If the act of 1876 embraces but one subject, as it does, and the same is clearly expressed in the words “ the acquisition by the several counties in this commonwealth for the use of the county, of bridges erected over rivers, creeks and rivulets, and for the abolition of tolls thereon, ” the only question is whether the third, section as amended is germane to the subject.

The appellants ask us to say that, from the title of the act, no notice was given that the county commissioners should not have a voice in passing on the question of the necessity of abolishing tolls and bridges in their respective counties and making them free from toll, and that, therefore, the act is not constitutional. The title to the act being the acquisition of bridges for the use of the county, and the abolition of tolls thereon, there was notice in it that counties were to be affected by the proposed legislation. There was, therefore, notice to every board of county commissioners in the commonwealth that they ought to make inquiry into the body of the act; and notice of the proposed amendment to the original act was notice to the county commissioners to look into it.

If the title fairly gave notice of the subject of the act, so as to reasonably direct inquiry into its body, the constitutional requirement was not violated: State Line & Juniata Railroad Company’s Appeal, 77 Pa. 429; Carothers v. Phila. Co., 118 Pa. 468 ; Dailey v. Potter County, 203 Pa. 593. If the commissioners had made inquiry into the amendment, they would have learned from it that, though their duties were to be ministerial in connection with the condemnation of bridges after action by the court and grand jury, as has been the case for more than half a centurj^ in matters relating to roads after action taken by the court, they would also have learned from the act that provision was made for the protection, through them, of the county against excessive awards of damages in the reports of viewers, even if approved by court and grand jury. They would -have discovered in it no “ departure, almost revolutionary, from the settled policy of the state on the administration of the affairs of counties,” as we were compelled to s¡ey was contemplated by the Act of May 5, 1899, P. L. 231: Stegmaier v. Jones, 203 Pa. 47. In speaking of that act the present Chief Justice said: “But passing over the conflict between sections 6 and 7, as to the duties of the county commissioners and the grand jury and conceding that they may be reconciled, the body of the act puts the final authority in the grand jury. The most important feature in the act, therefore, the power to impose on the county the very serious burden of debt which would be involved for example in this petition, is thus without any notice in the title transferred to a shifting and uncertain body, not usually if ever exercising such powers, not elected by the voters, but drawn by lot, and not requiring even the supervision of the court, yet vested by the act with authority to overrule without appeal the constitutional officers chosen by the electors to administer this class of their affairs. ” No such language, however, can be applied to the amended act of 1876, for by it the court, a continuing, unshifting and certain tribunal elected by the people and always safely to be trusted in its supervision of county affairs, must act in conjunction with the grand jury before public funds can be expended by the commissioners, and which are not to be expended until they have an opportunity to be heard before a jury in the common pleas on the question of the damages to be paid by the county. But for Stegmaier v. Jones, 203 Pa. 47, which is likely to remain the limit to which we shall go in declaring an act unconstitutional for want of any indication in its title of an important feature in it, it is not probable that the constitutionality of the act of 1876 as amended would be questioned. There is not another of our oases on which the appellants could pretend to rely. In the other case cited by them, Dailey v. Potter County, 203 Pa. 593, the deficiency of the title of the Act of June 6, 1893, P. L. 328 was so manifest from an inspection of the terms of the act that we need consume no time in showing that the case is of no use to them.

The decree of the court below, based upon the constitutionality of the act, is affirmed and the appeal dismissed at the costs of appellants.


author: Mb. Justice Bbown,

text:
    Verstine v. Yeaney.

      Equity—Bill for partition—Decree pro confesso.

    Where on a bill in equity for partition it appears that three of the defendants, although represented by counsel of record, did not demur or answer, and it further appears that on an application to open a decree pro confesso entered against them, their counsel, shortly after an amended bill had been filed, had notified them that he could no longer represent them since he represented other parties in the suit adverse to their claims, and it also further appears that the defendants took no steps to employ other counsel, the court cannot as a matter of right, but only as a matter of grace, permit the defendants, on the motion to vacate the decree, to go into a defense on the merits.

      Evidence—Assignment to make party competent witness.

    An assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends, and is ineffectual to accomplish that purpose.

      Contract—Vendor and vendee—Option.

    An agreement to purchase land with a stipulation that if the purchaser does not make the payments provided by the agreement within the limits of the times specified, the agreement is to be null and void, and all parties released from liability, is a mere option, and if the purchasers do not make payments within the times specified they have no interest in the land.
    Argued Ocfc. 12, 1904.
    Appeal, No. 52, Oct. T., 1904, by H. H. Brosius, John B. Myers and W. H. Stamey, from decree of C. P. Jefferson Co., April T., 1903,-No. 1, on bill in equity in case of F. L. Verstine et al., trading as Verstine, Hibbard & Company v. Susanna Yeaney et al.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat and Thompson, JJ.
    Affirmed.
    •Bill in equity for partition. Before Reed, P. J.
    Tbe facts are stated in tlie opinion of the Supreme Court.

      Error assigned among others was the decree of the court.

      Charles Corbet, with him C.S. McCormick, for appellants.
    Being for the benefit of the grantors the words of the forfeiture clause become the language of the grantors, to be construed most strongly against the grantors and in favor of the grantees : Leatherman v. Oliver, 151 Pa. 646 ; Philadelphia Tool Co. v. Assurance Co., 132 Pa. 236; McMillan v. Phila. Co., 159 Pa. 142.
    Prompt exercise of a right of forfeiture is necessary, and the proof should be clear: Thompson v. Christie, 138 Pa. 230; Forsyth v. North American Oil Co., 53 Pa. 168 ; Hatton v. Johnson, 83 Pa. 219; Steiner v. Marks, 172 Pa. 400.

      J. T. Maffett, with him W. -V. Conrad!, for appellees.
    An option must be exercised according to its terms : Fessler’s App., 75 Pa. 483; Eliason v. Henshaw, 17 U. S. 225.
    Where rights under an option expire on default of performing the condition on the day fixed, no notice or declaration of forfeiture is necessary on the part of the proposed, vendor: Cummings v. Town of Lake Realty Co., 86 Wis. 382 (57 N. W. Repr. 43); Steel v. Bond, 32 Minn. 14 (18 N. W. Repr. 830) ; Hollmann v. Conlon, 143 Mo. 369 (45 S. W. Repr. 275) ; Glock v. Howard & Wilson Colony Co., 123 Cal. 1 (55 Pac. Repr. 713) ; Tevis v. Nugent, 59 S. W. Repr. 9.
    December 31, 1904 :
   Opinion by

Mb. Justice Bbown,

At the time of the death of John Yeaney the legal title was in him to the undivided fourth of the real estate, of which partition was sought by the proceedings below. When they filed their bill the plaintiffs owned the remaining three fourths. By the twenty-second clause of his will, Yeaney directed that so much of his estate as he had not disposed of in the preceding clauses should be divided among those who would inherit from him under the intestate laws of the state. All of the defendants except the three appellants are those persons. They were made parties to the bill because on July 12, 1898, Yeaney and the other owners of the land entered into an agreement with W. H. Stamey & Company by which he agreed to sell them his interest for the sum of $12.00 per acre, on the following terms : “ One half in cash in six months from date of article, the balance in two equal annual payments, with interest. And it is agreed that in case the said W. II. Stamey & Company does not make the payments within the limits of the time specified and stated therein, then this agreement to be null and void, and all parties to be released from all liability herein.” It is under this agreement that the appellants claim an interest in the land, and by the bill, as amended, they were distinctly notified why they had been made parties to it, and were sufficiently warned by it to appear and, by answer and proofs, establish their right to the undivided fourth.

The bill was filed March 5, 1903. It was served on Stamey and Brosius, March 14, by giving each of them a copy. On March 24, an appearance was entered for the three appellants by C. Z. Gordon, Esq., a member of the Jefferson county bar, and two days later Myers accepted service of the bill. Subsequently there were three amendments to it, utterly immaterial to the appellants, as they simply made substitutions and changed names in the list of those in the line of descent from Yeaney. On-April 25, 1903, an amendment was allowed which amplified the bill by setting out fully the contention of the appellants, and on the same day service of the amended bill was formally accepted for them by their attorney of record. Nothing more was ever done by them until after they had been adjudged to be in default. They neither answered nor demurred, and when on June 10,1903, the cause came on to be regularly heard, the only course before the court was to decree that, as to them, the bill be taken pro confesso, and proceeding ex parte as to them on the answer and demurrer of the other defendants, and the admissions of the parties, to declare that the undivided fourth was in the heirs of Yeaney. If in them, it is not in the appellants as purchasers from him, and they are concluded by the decree in favor of the heirs, against which they had been given the opportunity to save themselves, if they deserved to be saved.

Under the equity rules, when a bill is taken pro confesso, the court proceeds to a decree ex parte. The same, however, may be set aside upon cause shown. On June 23, 1903, the appellants presented their petition to vacate the decree, alleging as a reason therefor that their attorney, after having appeared for them, had notified them that he could not act for them, as he had appeared for two of the other defendants whose interests were adverse to theirs, and further, that they had not been notified of the amended bill. There was a still further averment that they expected to be able to prove that the terms stipulated in the agreement of July 12, 1898, for the payment of the moneys due on the contract, were waived by Yeaney, and leave was asked to answer the amended bill. A rule was granted to show cause why the decree should not be set aside and the petitioners allowed to answer. This was subsequently discharged. .

On the hearing of the rule granted to vacate the decree the appellants offered nothing to excuse their default, though given the fullest opportunity to do so. Mr. Gordon, who had appeared for them, subsequently notified them that he could not represent them, for the reason already stated. This is all he did. He never withdrew his appearance, nór asked leave to do so. He accepted service for them of the amendment to the bill and stood on the record as their sole counsel up to the day the bill was taken against them pro confesso. They were all members of tbe bar, but allowed bis name to so remain on the record as the only one authorized to represent them and as the proper person upon whom to serve the amendment, which disclosed all the facts necessary to pass upon their alleged title. Though they each disclaim any knowledge or recollection of the filing of the amendment until after the bill had been taken pro confesso, they had, as the court properly held, legal, if not actual, notice of it. In view of their failure to have other counsel appear for them, after the notice given them by Mr. Gordon, they must be regarded as having been so negligent as to make their default in not answering or demurring inexcusable, and the court might well have refused to disturb the decree for that reason alone; but, notwithstanding such default, there was a disposition below to relieve them from it, if they could show there was any merit in their alleged claim, and they were allowed to present the same as folly on the hearing of the rule as they could have done if they had answered in the first instance and their proofs been heard. This surely was not of right, but of the court’s pure grace.

With appellants’ whole case before it, the court’s conclusion was that their claim to an interest in the land must be determined by the allegations of the bill. This was manifestly so, for no testimony was offered to show that the agreement of July 12, 1898, should be varied in any manner, or that the appellants had any rights whatever under it, except as therein expressed. It is true Stamey, on the very day he offered himself as a witness at the hearing of the rule to set aside the decree, undertook, by an assignment of his interest in the agreement, to qualify himself to testify as to what had taken place between him and Yeaney, in support of the contention that the time for the payment of the purchase money had been extended; but the court correctly said the conclusion was irresistible that the sole purpose of the assignment was to make him a competent witness, and it was, therefore, ineffectual to accomplish that object. In Darragh v. Stevenson, 188 Pa. 397, we said: “We regard it as clear that an assignment by a party to a controversy, made only for the purpose of enabling him to sustain the suit by his testimony, is not made in that good faith which the statute intends.”

By the terms of tbe agreement, one half of the purchase money was to be paid within six months from its date—July 12, 1898—and the balance in two equal annual payments, with interest. No payment was ever made, and there was no attempted tender until January 12, 1901—two years and six months after the agreement had been executed. With nothing before the court to show why its terms, as plainly written, should not bind the parties to it, the only question to be determined was as to their legal effect, and no other could have been given them than that they mean that if W. H. Stamey & Company did not make payments within the limits of the time specified, the agreement was to be null and void.

The agreement is practically an option and was so regarded below. .It is true it is an unconditional covenant on the part of Yeaney to convey, and there is an agreement on the part of Stamey & Company to pay, but their agreement has attached to it, doubtless at their instance, a proviso that if they do not make the payments at the time stipulated, they are to be released from all liability. The agreement in Yerkes v. Richards, 158 Pa. 646, was substantially the same, and the condition as to failure to make payment similar. We declared it to be an option. Here Stamey & Company never exercised their option by paying the first installment when it became due, and by their voluntary default elected to say they would not take the property. Their complaint is that Yeaney’s personal representative and heirs are asking for a forfeiture of their rights under the agreement, but the truth is they never had any right under it, except that of accepting the offer to sell by paying Yeaney the first payment, in accordance with the terms of the agreement, and when, on January 12, 1901, they tried to pay all of the purchase money, they had no right to demand the deed, and of course have no such right now.

The case was most intelligently disposed of by the court below.

Its decree is affirmed and the appeal dismissed at appellant’s costs,