text:
    Wynkoop, Appellant, v. Argue.

      Landlord and tenant — Lease—Assignment—Notice.
    Where a lease contains a provision that.it shall be assignable to a corporation named, or to a company having a capital of $50,000, and it appears that the corporation named was not in existence at the date of the lease, the lessor is entitled to notice of any assignment made in pursuance of the lease.
    Argued Dec. 7, 1906.
    Appeal, No. 214, Oct. T., 1906, by plaintiffs, from judgment of C. P. Montgomery Co., June T., 1905, No. 22, on verdict for defendant in case of Charles H. Wynkoop et al., trading as Contractors’ Equipment Company, v. Bertha E. Argue, owner, Oliver P. Fisher, tenant, and Lemuel G. Rodenbaugh, constable.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Replevin for goods' distrained.
    Before Weand, J.
    The facts appear by the opinion of the Superior Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned appear by the opinion of the Superior Court.

      G. Rodman Fox, with him Francis S. Laws and N. H. Larzelere, for appellants,
    cited: Fennell v. Guffey, 139 Pa. 341; Goss v. Fire Brick Co., 4 Pa. Superior Ct. 167; Watt v. Equitable Gas Co., 8 Pa. Superior Ct. 618; Kline v. Jacobs, 68 Pa. 57.

      J. A. Strassburger, for appellees.
    — The case at bar is ruled squarely'in Jones v. Gundrim, 3. W. & S. 531.

      February 25, 1907:
   Opinion by

Beaver, J.,

Bertba E. Argue, one of the defendants, by a written agreement, dated April 1, 1904, leased to Oliver P. Fisher, another of the defendants, a certain quarry, therein fully described, “ for a term of ten years from the 1st day of April A. D. 1904, and the rent of said quarry to be a royalty of (5) five cents per ton on all stone piined and shipped during the term of this lease, payable in monthly payments on the first to the tenth day of each month for all stone mined and shipped during the preceding month, accoi’ding to the railroad weight of stone. And it is hereby agreed and understood that the lessee shall mine or pay for not less than a minimum output of twenty-five thousand tons of stone per annum on the basis of two hundred and fifty working days in each year, and at the rate of one hundred tons of stone each working day, after August the 1st, A. D. 1904, and no excess stone to be carried forward on the credit of the ensuing year. If the said lessee fails to commence placing their machinery or material on the premises herein mentioned on or before the twentieth day of July A. D. 1904, then this lease shall become null and void.”

It was further provided in the said lease: “ And it is expressly agreed that this lease is assignable to the Standard Crushed Stone Company, or a company having a capital of fifty thousand dollars, to which assignment the lessor hereby gives her written consent, and at the expiration of said term the lessees shall immediately surrender peaceable possession of the premises unto the said lessor.”

On March 6, 1905, the said Bertha E. Argue issued her landlord’s warrant to Lemuel G. Rodenbaugh, another of the defendants, against Oliver P. Fisher, claiming a balance of rent due her at that date of $729.25. The bailiff, to whom the landlord’s warrant was addressed, distrained for rent alleged to be due, levying upon certain goods and chattels found upon the demised premises, and, after the usual appraisement, advertised them for sale. The plaintiffs thereupon issued their writ of replevin, claiming that the goods and chattels levied upon bj' the bailiff were their property. The property levied upon was replevied and delivered to the plaintiffs, who filed a bond, with surety, in the penal sum of $3,000. Upon the trial of the replevin, the jury returned a verdict “ in favor of Bertha Argue, Deft., for $781.00 rent due, and $900.00 for value of goods, enumerated in Deft, (sic) statement.”

The court below, in submitting the case to the jury, left it for them to determine: first, whether or not there was rent due and, if so, how much; second, whether Fisher, against whom the landlord’s warrant was issued, was the real tenant, and incidentally whether or not an alleged assignment made by Fisher to the Standard Crushed Stone Company was in fact made, as it purported, on the day on which it bore date; and, third, whether or not the defendant, Mrs. Argue', had been notified of said assignment. These were all disputed questions of fact and were all found in favor of the defendants by the jury. The court, however, in submitting them to the jury, reserved “ the question of law as to whether there is any evidence to be submitted to the jury, entitling the defendant to recover.” On a motion for judgment, n. o. v., it was refused, and the motion overruled, and judgment entered upon the verdict.

The only specification of error originally filed was : “ The court erred in refusing to enter judgment in favor of the plaintiffs upon the question reserved.” Subsequently two additional assignments of error were filed, in which portions of the charge of the court are assigned for error. It does not appear from the record, as printed by the appellants, however, that any exception was taken by the plaintiffs to the charge of the court below.

The entries, as contained in the appellants’ paper-boob, are:

“ Counsel for defendants except to the charge of the learned judge. Bill sealed.

“ Counsel for plaintiffs requested the learned judge to direct the stenographer to transcribe the notes of testimony and charge of the court in this case, and file the same of record, which request was granted and the stenographer so directed.”

Inasmuch, however, as the appellee, who, we assume, had knowledge of the filing of the additional assignments of error has raised no question as to their regularity, we will dispose of them as if they were based upon an exception and were regularly filed in due time.

The first was as to the court’s charge in regard to the bona tides of the assignment to the Standard Crushed Stone Companj'-, and the second as to the necessity of notice of such assignment to the appellee.

The question as to whether or not the assignment by Fisher to the Standard Crushed Stone Company actually took place at the time at which it purported to be dated was a distinct question of fact in the case. It was urged and argued by the appellee that it bore internal evidence of being made at a time other than its date. Assuming that this was a question for the jury, we can see no error whatever in the manner in which it was submitted.

After disposing of the question of the bona fides of the assignment, the-courtsaid, which is also assigned for error : “ The plaintiffs, however, cannot rest there, even if you should find that point in their favor, because Mrs. Argue would not be bound bjr that assignment, unless she had notice of it, so that she might know who her tenant really was.” The appellants argue that this was error, because the original lease contained the clause already referred to, in which it was agreed : “ That this lease is assignable to the Standard Crushed Stone Company, or a company having a capital of $50,000, to which assignment the lessor hereby gives her written consent.”

It is to be observed that the Standard Crushed Stone Company was not incorporated at the time of the execution of the lease. It is true that the appellee gave her written consent to the assignment when made, but it was to be made in the future either to the Standard Crushed Stone Company or some other corporation having a capital of $50,000. She was, therefore, entitled to notice that this provision of the lease had actually been carried into effect, in order that, as the court below says, “ she might know who her tenant really was.” This detached sentence from a long paragraph, in which the court sets forth the testimony on the one side and the other as to the question of notice, is scarcely fair to the court. After pursuing the subject at considerable length, covering a full page of the appellants’ paper-book, the court ends the discussion as follows: “ This is the important fact for you to pass upon in this case : After June -24, 1904, who was the real tenant of that property, as known by Mrs. Argue ? If it was the Standard Crushed Stone Company and she had notice of it, then your verdict must be in favor of the plaintiffs, because then Mr. Fisher owed no rent and the distraint was against the wrong party.”

We can see no error either in the submission of this question to the jur}' or in the manner in which it was submitted. Notwithstanding the fact that the appellee assented to the assignment of the lease to the Standard Crushed Stone Company, or such a corporation as was then in contemplation, she was entitled to notice of the assignment, in order that she might govern herself understanding^ in reference to her treatment of the corporation. Fisher was bound to her by the contract. In case of an assignment to a corporation, its obligation grew out of the privity of estate which could be laid down at any time. Her treatment of such a corporation might be entirely different from that which she might accord to the person with whom she made the contract. We cannot see that the stipulation for the assignment, as contained in the original agreement, in any way waived her right to notice, when such assignment was in fact made.

Giving full validity to the appellants’ assignments of error, we can find nothing in the case which warrants us in sustaining any of them.

Judgment affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Jackel, Appellant, v. Nixon & Zimmerman Amusement Company.

      Contract — Theater—Theatrical contract — Selling tickets.

    An unincorporated association entered into- a contract with the proprietors of a theater for a benefit. It was agreed that if the association sold a certain number of tickets it should be entitled to retain out of the proceeds a certain percentage, returning the balance to the theater company. After the association had sold a sufficient number of tickets to entitle them-to the percentage of the proceeds agreed upon, they were notified that the benefit had been canceled, as -the theatrical company billed refused to play for benefits. They were instructed to get in all the tickets and return them to the theater at the earliest possible date. They were further told that they would be refunded the price of printing, or that the benefit would be transferred to some other attraction. The association turned into the theater an account of tickets sold, offered to return those unsold, and tendered to the theater company the full contractual share of the proceeds of the sales made before the contract was declared canceled. This settlement was dedined. Subsequently the association voluntarily took up all the tickets previously sold, and returned the money in their hands to the respective purchasers. They then sued the proprietors of the theater for the percentage of the proceeds stipulated for in the contract. Held, (1) that the association in distributing the fund in their hands stripped themselves of every advantage gained by their previous partial performance of the contract, and deliberately destroyed the fund which was to be the source and means of payment; (2) that the association was not entitled to recover.
    February 25, 1907:
    Argued Dec. 7, 1906.
    Appeal, No. 192, Oct. T., 1905, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1902, No. 3,160, for defendant non obstante veredicto in case of J. M. Jaekel et al. v. Nixon & Zimmerman Amusement Company.
    Before Rice, P. J., Porter,' Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit to recover percentages on a contract to sell theater tickets.
    Before Ralston, J.
    At the trial the court gave binding instructions for plaintiff and the jury returned a verdict for plaintiff for $93.00. Subsequently judgment was entered for defendant non obstante veredicto.

      Error assigned was in entering judgment for defendant non obstanto veredicto.

      Charles E. Linde, for appellant.

      Arthur S. Arnold, for appellee.
   Opinion by

Head, J.,

Upon a review of the entire case as it was presented at the trial, the learned court below entered judgment for the defendant non obstante veredicto.

The plaintiffs, an unincorporated club or society of some sixty members, base their claim to recover on an arrangement for a benefit performance, at a theater owned or controlled by the defendants, which arrangement was evidenced by a writing dated September 12,1902, and signed by the plaintiffs. It was in form a receipt for tickets delivered to the plaintiffs, to be by them sold, and set forth the prices at which they were to be sold and the extent and manner of payment of the compensation that was to reward the plaintiffs for their services in selling them.

Its material provisions are as follows, viz: “ Received the following tickets for our benefit on Wednesday November 19, 1902, at the Park Theater. We, the undersigned, hereby promise and legally bind ourselves to sell only at prices given below, to accept 50 per cent, of the proceeds as our share. If, however, we should fail to sell one hundred dollars worth of tickets, we shall take but 25 per cent, as our share of the proceeds ; and if we fail to sell fifty dollars worth of the tickets, we further agree to hand full amount of sales to the said Park Theater and to forfeit our share thereof. We also pledge ourselves to deliver to Park Theater its share of money, together with all unsold tickets at 11 A. M. Nov. 15th, 1902.”

It is manifest, therefore, that plaintiffs were authorized to make lawful sales of the tickets and if any bona fide purchaser of a ticket was afterwards denied admittance to the theater, at the time and for the performance therein designated, he could recover from the defendants the price paid with any additional expense fairly incurred by reason of his purchase. But this would be the limit of his right as a ticket holder: Horney v. Nixon, 213 Pa. 20.

On October 11, more than a month before the date fixed for the benefit performance, the defendants’ manager wrote to the plaintiffs as follows: “ I regret to tell you that your benefit has been cancelled, the ‘ Four Cohens ’ refusing to play to benefits. You will, therefore, please get in all your tickets and return them to this office at the earliest possible date. We will refund your price of printing therefor or transfer your benefit to some other attraction.” It is difficult to say, from the testimony of the plaintiffs, whether sales of tickets were stopped at once on the receipt of this letter or continued until October 20, the date of the first meeting of the club following its receipt. Construing the evidence in the light most favorable to the plaintiffs we may assume that the- sales were promptly stopped. We may also assume, in fairness to the defendants, that their action in canceling the benefit for the particular evening and attraction previously agreed on, was not capricious or arbitrary, but brought about by an exigency difficult if not impossible for them to control. Still it was their duty to have foreseen it or provided against it, in their tickets and contract, if they expected to be relieved from any liability to ticket holders or to those who, in performance of the contract, had sold the tickets and thus earned the compensation therein specified. When the further performance of the contract was thus prevented by the concellation notice of the defendants, there had been created, by the efforts of the plaintiffs down to that time, a fund of $186. This fund was the source from which their compensation was to come, and, under .the plain terms of the contract, their right was to retain fifty per cent of that fund, which would be the full measure of their compensation. They were not bound to adopt the suggestion contained in the defendant’s letter and take up the sold tickets unless they chose to do so on the conditions therein named, that is to say, unless they were willing to accept the return of their money advanced for printing, or to have their benefit transferred to another attraction. They were at liberty to stand upon their contractual rights and retain the compensation they had earned, leaving to the defendants the duty of satisfying whatever demand could lawfully be made by the holders of the tickets. But it would seem as if, logically and reasonably, they must pursue one or the other of "the two courses thus indicated. At first they appear to have adopted the latter because, beyond stopping the further sales of tickets, they took no notice of the letter of cancellation.

On November 15, the day fixed in the contract for settlement, they presented themselves at the office of the defendants, turned in their account of tickets sold, offered to return those unsold, and tendered to the defendants their full contractual share of the proceeds of the sales made before the contract was declared canceled. The settlement was declined. The plaintiffs had thus clearly rejected the suggestion of the defendants’ letter as to taking up -the sold tickets and accepting something else in lieu of the benefit originally arranged, and just as clearly affirmed their intention to stand upon their contractual rights as they then existed. To accentuate this position they then gave notice that the holders of tickets would present themselves at the time named and demand the privileges called for by the tickets. They did appear in considerable numbers and were denied admittance, whereby the defendants assumed, towards these ticket holders the liability hereinbefore referred to.

Had the plaintiffs maintained the position thus taken it is difficult to see how, in any action brought by the defendants to recover the fund derived from the sales, they could have been deprived of the fruits of their partial performance of their contract. But some time later the plaintiffs, without any legal or contractual obligation requiring them so to do, voluntarily determined to take up all the tickets previously sold and return the money in their hands to the respective purchasers. By so doing they stripped themselves of every advantage gained by their previous partial performance of the contract. They deliberately destroyed the fund which the contract provided was to be the source and means of payment. With the compensation contemplated by the contract securely in their own grasp, protected there by every line and obligation of the contract, they chose to throw it away and now seek to found, on that same contract, a totally different right of recovery, never in the contemplation of the contracting parties.

After a patient examination of the record, including all of the evidence, we are unable to view the case in any other light than as it was regarded by the learned trial court. The assignment of error is overruled and the judgment affirmed.


author: Henderson, J.,

text:
    Commonwealth v. Hughes, Appellant (No. 2).
    February 25, 1907:
    Argued Dec. 10, 1906.
    Appeal, No. 17, Jan. T., 1907, by defendant, from order of Q. S. Luzerne Co., Jan. T., 1906, No. 151, refusing to quash the array of grand jurors in case of Commonwealth v. H. H. Hughes.
    Before Rice, P. J., Porter, Henderson, Orlad y, Head and Beaver, JJ.
    Affirmed.
   Opinion by

Henderson, J.,

This appeal brings up the same questions which were considered in the case of the Commonwealth v. the same defendant, post, p. 90, in which case an opinion has been this day-filed. For the reasons therein given this judgment is affirmed and the record remitted to the court below that the sentence may be executed according to law.


text:
    Commonwealth v. Tilly, Appellant.

      Criminal law — Public officers — Embezzlement—Guilty knowledge.

    On the trial of a public officer for wrongfully appropriating public funds for services in a particular year, it may be shown that in the previous year he had received a similar sum, but had returned a part of it before he received his compensation for the second year.

      Criminal law — Attempt to influence juror — Examination of juror during trial.

    Where during the trial of a criminal cause an alleged attempt to influence one of the jurors is brought to the attention of the court, the trial judge may interrupt the course of the trial and examine the juror, and if he is satisfied that no harm has been done, proceed with the case.

      Criminal law — Conspiracy—Evidence.
    Confederation and unlawful design are essential to the offense of conspiracy, which necessarily implies a united design for an unlawful object. It is, of course, not necessary that the commonwealth prove an express confederation. Generally this is impracticable, and the case may be made out by such evidence as satisfactorily leads to the conclusion that an unlawful combination existed, but the evidence must logically tend to such a conclusion.
    Where certain members of a school board are guilty of conspiracy, other members of the board cannot be convicted of the same offense merely because they were members of the board. It must be shown affirmatively that such members participated with the others in the criminal confederation.
    Argued Dec. 10, 1906.
    Appeal, No. 18, Jan. T., 1906, by defendant, from judgment of Q. S. Luzerne Co., Jan. T.,1906, No. 68, on verdict of guilty in case of Commonwealth v. John W. Tilly et al.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for conspiracy.
    Before Halsey, J.
    At the trial John Higgins, one of the defendants, was asked under objection and exception whether he did not return to the township $120 of the $200 which he had received in 1904. [2] The court refused to charge that there could be no conviction of Daniel Finnegan or James Devenney. [8]
    February 25, 1907 :
    Verdict of guilty against all of the defendants, upon which judgment of sentence was passed. Defendants appealed.

      Errors assigned were (1) refusing to quash the indictment; (2) ruling on evidence, quoting the bill of exceptions; (3) above instructions ; (4) in refusing to withdraw a juror and continue the case.

      John T. Lenahan, with him Thomas W. Hart and Michael H. McAniff,' for appellants.
    — The mere knowledge, acquiescence or approval of the act without co-operation or agreement to co-operate is not enough to constitute one a party to a conspiracy: U. S. v. Newton, 52 Fed. Repr. 275; Com. v. Zuern, 16 Pa. Superior Ct. 588.

      John H. Earnham and B. R. Jones, district attorney, for appellee.
   Opinion by

Henderson, J.,

The first assignment of error raises the same questions considered in Commonwealth v. Hughes, post, p. 90, in which an opinion was this day filed. We held that the court properly overruled the motion to quash the indictment, and for the reasons there given the first assignment of error is overruled.

The witness, Higgins, was one of the defendants, and was called to testify in his own behalf. Pie was indicted for conspiring with the other defendants to cheat and defraud the school district of Hanover township. One of the charges was that he fraudulently presented and collected a bill of $200 for services as county auditor for the year 1905. It appeared on his examination that he had received a similar amount for similar services for the year 1904. The court permitted the district attorney to ask the witness whether he did not return to the township $120 of the amount received by him for the year 1904; this for the purpose of showing guilty knowledge. The evidence was admissible for that purpose. He had testified that his services for 1904 were similar to those performed in 1905. It would be a reasonable inference that if he returned the amount alleged he knew that the sum charged was in excess of that to which he was entitled. It is not an objection to the question that the money may have been returned after he received his payment for the services of 1905. The witness could easily explain, if the fact were so, that he did not make the repayment until after he had received his compensation for 1905. The fact of the repayment would have little weight on the question of guilty knowledge if it was made after he had received his compensation for the second year, but the witness knew when such repayment was made, and could have shown that it was only made because of advice received after he had been paid for the second year. The witness undertook in his testimony in chief to justify his charge for services. It was pertinent, therefore, to inquire whether he had not returned 1120 of the $200 charged for the preceding year because it was illegally taken.

The court acted with propriety in directing an investigation of the alleged attempt to influence one of the jurors. It was due to the orderly administration of justice that inquiry be made on the subject before the ease proceeded further. If such an attempt had succeeded a miscarriage of justice might have resulted, and it would have been a useless proceeding on the part of the commonwealth to have continued the trial of the case. No objection was made by the defendants to the examination of the juror, and it does not appear from his testimony that that which occurred had so prejudiced him as to disqualify him. He did not know in whose behalf the solicitation was made, and necessarily had no prejudice against any particular defendant. There is no reason for concluding that the verdict was influenced by the transaction disclosed by the juror. If .the disclosure of such an attempt constituted sufficient ground for withdrawing a juror and continuing the cause, the administration of justice might be successfully obstructed, for similar efforts might be made from time to time as succeeding trials occurred.

The third assignment raises the question whether the evidence offered by the commonwealth was sufficient to support the conviction of Daniel Finnegan and Janies Devenney. After a careful examination of the evidence we think the defendants’ point as to these defendants should have been affirmed. Confederation and unlawful design are essential to the offense charged. Conspiracy necessarily implies a united design for an unlawful object. It is, of course, not necessary that the commonwealth prove an express confederation. Generally this is impracticable, and the case may be made out by such evidence as satisfactorily leads to the conclusion that an unlawful combination existed, but the evidence must logically lead to such a conclusion. We do not discover on the record any evidence tending to show that Finnegan and Devenney had entered into any combination or committed any overt act justifying the verdict against them. The commonwealth relied upon the fact that they were members of the school board; that the board had furnished a statement to the auditors which failed to account for $936.03 of the amount shown by the tax duplicate, and that Finnegan was present in Wilkes-Barre when one of the auditors received his order for compensation from Higgins, another auditor. The statement from the school board to the auditors was not offered in evidence, and we are not informed who made it up. Presumably it was the work of their secretary. It does not appear that Finnegan and Devenney ever saw it or approved of it. It will not do. to say that they ought to have seen it and known what it contained, and that they are criminally liable in not having so done. There is no such thing as an inadvertent and negligent conspiracy. There must be intended unity of purpose. Many school directors are unfamiliar with accounts, and must necessarily in trust the preparation of statements to their secretary or members of the board who are competent to make them. When there is no evidence, therefore, except the fact that the defendants were members of the school board to involve them in the crime charged, such evidence does not necessarily or logically lead to the conclusion of guilt. The evidence relating to the presence of Finnegan in Wilkes-Barre has no weight. It does not appear that he was there by appointment, or that he knew what was to take place. He did not participate in anything then done, and the occurrence referred to was long after the act of conspiracy. The jury was evidently led to a verdict of guilty as to these two defendants because they were members of the school board. The inference of guilt was unwarranted under the evidence and the judgment as to James Devenney and Daniel Finnegan is reversed, and they are discharged without day. As to the other defendants the assignments are overruled and the judgment affirmed, and the record is now remitted for the purpose of execution according to law.


author: Rice, P. J.,

text:
    Feingold v. Steinberg, Appellant.

      Constitutional law — Sales in bulk — Act of March 28, 1905, P. L. 62.
    The Act of March 28, 1905, P. L. 62, relating to sales of stock of merchandise and fixtures in bulk, is constitutional.
    The question whether the inquiry by the purchaser required by the act was made in good faith, is for the jury.
    Argued Dec. 11, 1906.
    Appeal, No. 143, Oct. T., 1906, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1905, No. 570, on verdict for S. Feingold in the interpleader in case of Simon Feingold, trading as S. Feingold & Company, v. Jacob Steinberg, Morris Barsh and Meyer Luber, copartners, trading as M. Barsh & Company.
    Before Bice, P. J., Porter, Henderson, Morrison, Orlad y, Head and Beaver, JJ.
    Affirmed.
    Interpleader to determine title to a stock of merchandise sold in bulk.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for S. Feingold and value assessed at $1,200. M. Barsh & Co. appealed.

      LJrrors assigned were various instructions.

      Claude L. Roth, with him Frederick J. Shoyer, for appellants.

      J. C. Levi, of Bamberger, Levi ‡ Mandell, for appellee.

      February 25, 1907 :
   Opinion by

Rice, P. J.,

This case, judging by the facts which a jury could find from the evidence adduced, is a fair illustration of the kind of transaction whereby creditors could be successfully defrauded, and not infrequently were defrauded, prior to the Act of March 28, 1905, P. L. 62. One Steinberg had opened what is called a “gent’s ” furnishing store in the city of Philadelphia. He had done business at this store for a comparatively short time, a month or two. Barsh & Company are engaged in the auction business and one of their business methods is to buy up entire stocks of merchandise belonging to those who desire to give up trade, and having bought them, to sell the merchandise again by auction in their place of business. There is a dispute in the testimony as to the value of Steinberg’s stock. Some of the witnesses place it as high as $2,000, and the verdict of the jury has established the fact that the goods were worth $1,200. Steinberg notified Barsh & Company by telephone that he had the stock for sale, and after negotiations on the same day a sale was made to Barsh & Company for $550 and within a few hours the goods were removed to their place of business. Steinberg was paid the price agreed upon, when, as the learned trial judge says in his charge, “he went on his way and was seen no more.” The result was that the creditors who had sold the goods to Steinberg were left in the lurch. At the time of the sale, it is testified by Mr. Leuber of the firm of Barsh & Company that he asked Steinberg whether he owed any money on the goods, whether he had any creditors, and that Steinberg assured him that he had no creditors ; also that Steinberg gave him a receipt in writing in which it was stated that the stock was free from all incumbrances and debt, “ all paid, no creditors on it.” The allegation that inquiry was made of the seller as to his creditors prior to the sale rests in parol, and for that reason as well as in view of other circumstances the court was right in submitting to the jury the question whether the purchaser had made such inquiry, “ in good faith,” as required by the act. The manner in which the question was submitted, and the considerations which led the learned trial judge to submit it to the jury, appear quite clearly in those parts of his charge which are quoted in the several assignments of error. No well founded criticism can be made of tbe charge in this particular. It was a clear, adequate and impartial presentation of the law applicable to the special circumstances of the case. The principal ground upon which we are asked to reverse the judgment is that the act is unconstitutional, and therefore it was immaterial whether the requirements thereof were complied with by the purchaser and seller or not. We have considered at some length the constitutional questions in the case of Wilson v. Edwards, 32 Pa. Superior Ct. 295, upon the appeal of Caniff, in which we herewith file an opinion. All of the questions, so far as we regard it as important to specifically notice them, have been discussed therein as fully as seems to be required in order to adequately present the grounds of our decision.

All the assignments of error are overruled and the judgment is affirmed.


text:
    Webb’s Estate.

      Decedents' estates — Contract—Executors and administrators — Distribution.

    Where an administratrix as such pays a portion of a bill of an expert accountant, -and it is agreed between them'that the accountant shall present his claim for the balance against the estate and that the administratrix shall not be held personally responsible therefor, the administratrix cannot object to the payment of the balance out of the estate merely because she is the sole distributee thereof.
    Argued Dec. 12, 1906.
    Appeal, No. 236, Oct. T., 1906, by Mary J. Webb, Administratrix, from decree of O. C. Phila. Co., Jan. T., 1902, No. 76, dismissing exceptions to adjudication in Estate of Elisha Webb, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to adjudication.
    In addition to the facts stated in the opinion of the Superior Court it appeared that the audit company gave to the administratrix the following receipt:

      February 25, 1907:
    “ Philadelphia, October 28, 1903.
    “Received of Mrs. Mary J. Webb Five Hundred 00-100 Dollars for services rendered in examination of books of Elisha Webb & Son. It being understood that the balance of my claim for services, to wit, $400, shall be presented against the estate of Elisha Webb, Sr., and I agree not to hold Mrs. Webb individually responsible for said balance and further agree to release her as administratrix if she is surcharged with my bill to the extent of $400.
    “ The U. S. Audit Company,
    “Peter Ballingall,
    “ President.”

      Errors assigned were in dismissing exceptions to adjudication.

      Q-eorge J. Edwards, Jr., with him Franklin L. Lyle, for appellant,
    cited: Grier v. Huston, 8 S. & R. 401; Seip v. Drach, 14 Pa. 352; Dougherty v. Stephenson, 20 Pa. 210; Smith v. Teacle, 8 Pa. C. C. Rep. 150 ; Williamson’s App., 94 Pa. 231; Miller’s App., 18 W. N. C. 485.

      Thomas McConnell, Jr., with him J. Henry Williams, for appellee.
   Opinion by

Rice, P. J.,

These facts are undisputed: that the United States Audit Company, the appellee, was employed by the administratrix of the decedent’s estate to investigate the books and accounts of the firm of which the decedent was a member at the time of his death, for the purpose of ascertaining the value of his interest therein; that the company rendered the services for which they were employed; that they were reasonably worth the amount claimed; and that the administratrix paid $500 on account of the claim, it being expressly stipulated in the receipt given by the company and accepted by the administratrix that the balance of the claim should be presented against tbe estate of the decedent, and that the administratrix should not be held personally responsible therefor. The balance for distribution in the hands of the administratrix upon the adjudication of her account, after deducting certain costs, another small claim, and the claim in question, was awarded by the court to her in her individual right. She complains on this appeal of the allowance of the appellee’s claim, and through her counsel insists, first, that she had no power in her capacity as administratrix to bind the estate by the contract under which the company was employed; second, that owing to her release, in the manner above described, from the personal liability which she created, there remains no claim which upon equitable principles can be enforced through her against the estate, because of the principle that where the person primarily liable is released equity will not enforce the claim against the estate which is .secondarily liable. In order to accomplish this result it is nec-. essary to get rid of the stipulation upon which the release was given, namely, that the claim should be presented against the estate; and this compels her to take the further position that she could not bind the estate by such undertaking. Be it so, she could nevertheless bind herself, and as she is the only jjerson affected by the allowance of the claim, there is no principle, legal or equitable, which requires us to make a decree whereby she will profit personally by a repudiation of her undertakings. The court was right in holding that its jurisdiction as a court of equity over the fund was broad enough to enable it to make the distribution the appellant intended, or at least consented, should be made when she obtained the release. As administratrix she has no standing whatever to complain of the distribution; as a distributee she has no just cause of complaint under the facts. So that, if this appeal were amended so as to make it an appeal in her individual right, she would be in no better position than she is.

The decree is affirmed and the appellant is directed to pay the costs.


text:
    Goldsmith, Appellant, v. Fillman.

      Deeds — Plan of lots — Boundaries—Courses and distances — Marks on ground.

    The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by proof of their former existence, when the marks or monuments are gone.
    A map or plan referred to in a deed is a material and essential part of the conveyance, and has the same effect as though copied into the deed itself.
    Where a deed for a block of lots describes the lots as numbered according to a certain plan, and there is a further description by an outside boundary of the whole block by courses and distances, and" there is an inconsistency between the two descriptions, the courses and distances of the outside boundary will give way to the measurements of the plan of lots.
    In ascertaining the location of an interior line in a block of lots, the same rule applies that is applicable in locating an interior tract of land in a block survey, viz.: “The marks of a block consist of the marks, if such are found, of every tract of the block.”
    Argued. Dec. 6, 1906.
    Appeal, No. 180, Oct. T., 1906, by plaintiff, from judgment of C. P. Montgomery Co., Oct T., 1905, No. 52, on verdict for defendant in case of Godfrey Goldsmith v. Hannah Fillman.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Ejectment for land in the borough of Pottstown.
    Beforé Swartz, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for defendant. Plaintiff appealed.

      Errors assigned were, inter alia, as follows:
    1. The court erred in not allowing the plaintiff to rest after he had proved possession of thirty feet under his deed, and dispossession by the defendant, thereby throwing the burden of proof upon the plaintiff, as follows:
    Mr. Freedley: If the court please we would ask for a non-suit here on the ground that he has not identified the lot that he says was invaded with the lot that is described in his deed and which is the only lot he has title for.
    February 25, 1907:
    The Court: I think you will have, to go farther, Mr. Young, as I understand it. A man is not bound to put his fence on his line, or put his buildings on his line; he may own beyond the line of the building.
    Plaintiff objects to the ruling of the court; and bill sealed.
    2. In giving binding instructions for defendant.

      William P. Young, with him H. Wilson Stahlneeleer, for appellant.
    — The plaintiff should have been allowed to rest after proving possession under his deed, and dispossession by the defendant: Kron v. Daugherty, 9 Pa. Superior Ct. 163; Henry v. Huff, 143 Pa. 548; Dawson v. Mills, 32 Pa. 302; Omensetter v. Kemper, 6 Pa. Superior Ct. 309.
    All the lines of the Reitmeyer plan of lots were relevant to establish the disputed line: Lodge v. Barnett, 46 Pa. 477; Culver v. Hazlett, 13 Pa. Superior Ct. 323 ; Dawson v. Mills, 32 Pa. 302; Grier v. Penna. Coal Co., 128 Pa. 79; Gratz v. Hoover, 16 Pa. 232; Parks v. Boynton, 98 Pa. 370; Pruner v. Brisbim, 98 Pa. 202; Knupp v. Barnard, 206 Pa. 280.
    Under the law and all the evidence, the verdict and judgment should have been for the plaintiff: Ferguson’s App., 117 Pa. 426 ; Trutt v. Spotts, 87 Pa. 339.

      Henry Freclley, with him J. V. Crotwalts, fox appellee.
    — The location of a block of surveys may be established by a single undoubted monument of the block, and this is the corner of Washington and King streets: Knupp v. Barnard, 206 Pa. 280.
   Opinion by

Head, J.,

The plaintiff and the defendant are the owners respectively of two lots of ground in the borough of Pottstown. Both of these lots are parts of a plot of ground which, in 1864, was laid out in a plan of town lots by one Reitmeyer. The entire plan showed two tiers of lots separated by a twenty feet wide alley running from east to west. One tier faced north on Chestnut street and extended southward to the alley, but with it we have no concern. The other tier faced south on King street and the lots stretched northward to the same alley. This entire block or tier of lots, embracing those of the parties to this controversy, was bounded on the west by Washington street, running north and south, at right angles to King and Chestnut streets, and on the east by the property line of Reitmeyer, called in the testimony the Hobart line, which ran northeast and southwest, cutting King street ata considerable angle. The point where this line intersected King street had been marked by a substantial post which was well known and remained for many years, and the entire Hobart line could be for a long period, perhaps can be yet, traced on the ground “ by running it through.” The testimony does not show with any clearness what was the condition of Washington street in 1864, or in what manner the surveyor, who platted the lots, undertook to locate the exact corner of that street and King street; but it does appear that down until 1886 there had been no official location of the east line of Washington street and no record existed from which such location could be determined with precision. Starting from the point adopted by him in 1864, as the northeast corner of Washington and King streets, and proceeding eastward along the latter street, the surveyor, Willauer, laid out twenty lots, numbered in order from one to twenty, fronting on that street. Nineteen of these lots were rectangular in shape while the last one, No. 20, was triangular, having no actual frontage on the street but only its apex, at the post in the Hobart line already referred to. To lot No. 1, at the starting point, he gave a width, on the street, of thirty-five feet; the next seventeen lots each had a uniform width of thirty feet, whilst No. 19 had thirty-one feet, four inches. Manifestly, therefore, if the 'work was correctly done, the post on the Hobart line, the eastern boundary of the plan, must have been distant from the street line of Washington street exactly 576 feet four inches. None of the lots were fenced or otherwise improved, with the exception of some building on No. 1, but doubtless they were well staked on the ground so that the owner could sell without confusion and give to each purchaser what he bought. In every deed made by Reitmeyer that has been brought to our attention, he always described the lot or lots conveyed by number according to this plan, and used the adjoining lots east or west, also by numbers, as calls to mark the limits in either direction to which the conveyance could carry.

A careful examination of some of these deeds now becomes important to enable us to fairly understand the theory adopted by the learned trial court and to determine whether the conclusion to which it led was correct or erroneous.

By deed dated March 29, 1865, Reitmeyer conveyed to Israel Fillman five lots numbered 1, 2, 3, 4 and 5, bounded, limited and described as follows : Beginning at the southeast? (northeast) comer of Washington and King streets, thence northwardly along the south ? (east) side of Washington street 146 feet to a twenty feet wide alley — ; thence eastwardly along said alley 155 feet to a stake, a corner of lot No. 6, in a plan of lots laid out, etc., — thence southwardly, along the line of said lot, 146 feet to King street aforesaid; thence westwardly 155 feet to the place of beginning.”

By deed dated April 3, 1868, Reitmeyer conveyed to Henry Mehlhouse “ seven lots of land Nos. 6, 7, 8, 9, 10,11 and 12 in a plan of lots surveyed, etc., — bounded and limited as follows: Beginning at a stake a corner of lot No. 5; thence northwesterly along the line of the same, 146 feet to the south side of a 20 feet wide alley; thence eastwardly along same 210 feet to a stake comer of lot No. 13 ; thence southwardly along the line of same 146 feet to north side of King street; thence westwardly along the line of the same 210 feet to a corner of lot No. 5, the place of beginning.”

Now we think it is apparent, from an examination of these two deeds, that it was not their primary object or purpose to convey to the grantees any exact or particular number of feet front or depth, but rather to convey to each a block of lots cut off, marked and designated by the boundaries named in each. The two blocks adjoined and had a common boundary line, viz.: the western line of lot No. 6. This line, wherever it was, marked the utmost limit eastward of the grant to Fillman, westward of that to Mehlhouse. Each was buying lots according to a plan referred to in the deeds, and a “ map or plan so referred to becomes a material and essential part of the conveyance, and it is to have the same effect as though copied into the deed: ” Ferguson’s Appeal, 117 Pa. 426. Every lot as it was laid off on tbe ground, portrayed in the plan, or described or called for in the deed, was, as was said in Lodge v. Barnett, 46 Pa. 477, “ a divided portion of land having already a separate defined existence.” It would seem clear, therefore, that the grant to Fillman gave him title to the land, cut as it was on the ground and in the plan into five lots, that lay between Washington street on the west and the line of lot No. 6 on the east. If the distance between these two lines was in fact just 155 feet, then that distance was the measure of his grant. But if the distance was in fact more or less than 155 feet, then the measure of his grant, in feet, would increase or diminish accordingly, but the grant itself would remain what it was from the first, viz.: the land between the two boundary lines. “ The courses and distances in a deed always give way to the boundaries found upon the ground, or supplied by the proof of their former existence when the marks or monuments are gone: ” Lodge v. Barnett, 46 Pa. 477. If, then, it becomes important, in the trial of this cause, to ascertain just how much land Israel Fillman acquired under his deed from Reitmeyer, the location qf the west line of lot No. 6, as it existed on the ground, would be of- the most vital consequence. That the location of this line was thus important we think must follow from the fact that Fillman was the common ancester in title of both plaintiff and defendant, and that the title which the former holds was older in time and, to that extent at least, prior in right to that held by the latter.

In March, 1869, Fillman for the first time broke lot lines by conveying to Henry Mehlhouse (now Gausman) the eastern one-half of lot No. 5 by the following description, viz.: “ Beginning at a stake a corner of lot No. 6 belonging to Henry Mehlhouse thence westwardly along King street fifteen feet to a stake; thence northwardly 146 feet to a twenty feet wide alley; thence eastwardly along said alley fifteen feet to a'stake a corner of lot No. 6 ; thence southwardly along the line of said lot 146 feet to a stake the place of beginning, being one-half of lot No. 5 in á plan of lots,” etc. It will be observed that this deed, starting at the eastern boundary of the grantor, carried the grant westward a distance of fifteen feet and with no call or boundary to limit or control the distance named in the deed. The grantee therefore took fifteen feet, neither more nor less: Green v. Schrack, 16 Pa. Superior Ct. 26. In the same year and month Fillman conveyed to John W. Wentzel, again breaking lot lines, thirty feet immediately west of the strip conveyed to Mehlhouse by the description last quoted. Again there was no call or boundary to control the distance named in the deed and the grantee took his thirty feet. His right to it, now vested in the plaintiff, could in no way be contested by his grantor and at that time no rights of any third party had intervened, the stream that bore the title of the defendant had not yet left the parent fountain. What, then, had Fillman left after these conveyances ? It is clear that as the result of them he had moved westward, by forty-five feet, his former eastern boundary and, for the same reasons before given, he now had just what land there was between his new eastern boundary, established by himself, and Washington street. This was not necessarily 110 feet or any particular number of feet. Of course if he had originally 155 feet as his deed stated, and had sold forty-five feet off the east end, he must needs have had 110 feet left. With whatever he had left he made an entirely new plan, abandoning the old lot lines, and converted the property into three lots fronting on Washington street. The northermost of these three he conveyed in November, 1869, to Ephraim Fillman, the immediate predecessor in title of the defendant. By this deed the grantor undertook to convey a lot thirty-five feet wide on Washington street and extending back, of equal width, a distance of 110 feet. Assuming, therefore, that the line of Washington street continued where the surveyor located it in 1864, and that all of his work onground and plan was correctly done, the rear and eastern line of defendant’s lot ought to be exactly coterminous with the western line of the plaintiff and no contention could arise. It appears, however, that after these lots had been occupied by the owners for many years without dispute, the defendant learned that her lot had, in fact, a depth of but 108J feet. She thereupon rebuilt her rear fence eighteen inches farther east, encroaching to that extent on what the plaintiff claimed to be his property and this action followed. During the trial much evidence was offered by the plaintiff to show the lines of many, if not all, of the lots east of No. 6, and that all of them conformed to the lines as originally marked by the surveyor and shown on his plan. This evidence we regard as relevant and important, not to establish as independent facts the lines of lots about which there was no dispute, but as tending to show the correctness of the surveyor’s work, and as valuable aids to the jury in locating the line of lot No. 6, the significance of which we have already adverted to. We see no reason why in ascertaining the location of this interior line in a block of lots we should not apply the same rule that has been held to be applicable in locating an interior tract of land in a block survey. “ The marks of a block consist of the marks, if such are found, of every tract of the block: ” Knupp v. Barnard, 206 Pa. 280.

At the conclusion of the trial the learned court below struck out all of this evidence and held as a matter of law that the defendant, as the result of the several conveyances we have heretofore noted, was entitled to have the full depth of 110 feet called for in her deed and therefore the plaintiff could not recover. This erroneous conclusion seems to have resulted partly from the assumption, as an undisputed fact in the case, that the present building line of Washington street, officially adopted in 1886, is identical with the line adopted by the surveyor in 1864. A jury may find it to be so if the weight of the evidence so inclines, but in the present state of the record we do not think the court was warranted in assuming it to be either an admitted or established fact in the case. Further, the court held that when Reitmeyer conveyed to Fillman, as the former owned more than 155 feet east of Washington street, his deed must have carried the grant that far. This construction of that conveyance, in our judgment, entirely overlooks the terms in which the instrument itself declares that the grant was “ bounded and limited ” on the east by the line of lot No. 6, and ignores the force and effect of the rule that the courses and distances in a deed must give way to the calls for adjoiners. Again we say a jury may so find, but it must be after hearing all relevant evidence that may be offered and receiving instructions from the court that will harmonize with the principles herein laid down. The second and third assignments are sustained.

The remarks of the learned court which are made the basis of the first assignment were nothing but a frank statement of his views at the stage the trial had- then reached. Theyresuited in no definite ruling or order. It was still the privilege of counsel to determine for himself when he had made out a prima facie title in the plaintiff and when he should rest his case. We see nothing in the assignment that would warrant us in sustaining it and it is therefore dismissed.

Judgment reversed and a venire facias de novo awarded.


text:
    McNally, Appellant, v. Montour Railroad Company.

      Arbitration — Finality of decision — Fraud.
    Where an executory contract provides that any dispute between the parties growing out of the contract shall be referred to an arbitrator whose decision shall be final, the award of the arbitrator cannot be attacked for a mere mistake of judgment on his part, or even for partiality where the person benefited is not implicated. It is only fraudulent conduct on the part of the arbitrator, or collusion between him and the party benefited that will impeach the award.
    Argued Dec. 6, 1906.
    Appeal, No. 91, April T., 1907, by plaintiff, from judgment of C. P. No.'l, Allegheny Co., Dec. T., 1902, No. 878, on verdict for plaintiff in case of Thomas Mc-Nally v. Montour Railroad Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a contract.
    Defendant presented the following point i

    3. The arbitration clause set forth in the contract in evidence . bars recovery in this action, except as to plaintiff’s claim relative to and arising out of the use by plaintiff of defendant’s locomotive, train and train crew. Answer-: This is affirmed.
    Yerdict and judgment for plaintiff ‘for $750. Plaintiff appealed.

      Error assigned was above instruction, quoting it.

      A. M. Irnbrie, with him Leander Trautman, for appellant,
    cited: McManus v. Phila., 211 Pa. 394.

      February 25, 1907:

      Charles Marshall Johnston, for appellee,
    cited: Chandley v. Cambridge Springs Boro., 200 Pa. 230; Reynolds v. Caldwell, 51 Pa. 298; Bowman v. Stewart, 165 Pa. 394; O’Reilly v. Kerns, 52 Pa. 214; Howard v. Railroad Co., 69 Pa. 489; Hostetter v. Pittsburg, 107 Pa. 419.
   Opinion by

Henderson, J.,

The appeal in this case presents a single question: is the decision of the arbitrator choseil by the parties to the contract declared upon conclusive' as to disputes arising between them ? The contract contained the following provision : “ It is further agreed and understood between the parties hereto, that all questions which may arise under this contract between Thomas McNally, and the Montour railroad shall be referred to the chief engineer of said Montour railroad whose decision therein shall be final and conclusive.” A dispute arose under the following clause of the contract:

“ The sum of sixty-one (61c) cents per cubic yard for excavation in ‘ Through Cut,’ placed in embankment at * Shop Location,’ or as otherwise instructed. T. McN.

“ The sum of thirty-nine (39c) cents per cubic yard (additional) for separating, quarrying and delivering two-man stone in ‘ Through Cut ’ to ‘ Shop Location,’ or as otherwise instructed. T. McN.” The plaintiff claimed the additional compensation of thirty-nine cents per cubic yard for the removal of all the rock in the cut. The arbitrator held that this claim was not within the terms of the contract for the reason that the plaintiff’s proposal was for sixty-one cents per cubic yard unclassified and the claim for additional compensation was rejected. Since the decision in Monongahela Navigation Company v. Fenlon, 4 W. & S. 205, the doctrine has been strictly adhered to that when parties to an executory contract agree that any dispute which may arise between them on the subject of the contract shall be referred to and determined by a person named as arbitrator, whose decision is made final, no action can be maintained by one of'the parties against the other for a breach of the contract. The controversy between the plaintiff and defendant grew directly out of the contract and is covered by its express terms. It was, therefore, within the jurisdiction of the arbitrator and this included the determination of questions- both of law and fact: Connor v. Simpson, 104 Pa. 440; Hostetter v. City of Pittsburg, 107 Pa. 419. The decision is open to impeachment for fraud, but such fraud must be actual and voluntary and is not to be implied from an erroneous or unjust decision. Partiality of the arbitrator in making the award will not impeach it unless the party benefited be implicated. Nor does a mistake as to conclusions drawn from the evidence nor the erroneous application of the law to the facts avoid the decision: Boston Water Power Co. v. Gray, 47 Mass. 131; Clarke v. White, 37 U. S. 178; Hostetter v. City of Pittsburg, 107 Pa. 419; Reynolds v. Caldwell, 51 Pa. 298; McManus v. Philadelphia, 201 Pa. 632. There is no evidence of fraudulent conduct on the part of the arbitrator nor of collusion between him and the defendant. It is contended by the appellant that the work for which compensation is sought was actually performed; that the refusal of the engineer to allow for the work was arbitrary and capricious and therefore fraudulent, thus taking the case from under the operation of the decisions referred to. This, however, would be to impute fraud to the arbitrator because he arrived at an erroneous judgment which is not the fraud which will avoid an award. The very question as to the meaning of the contract was submitted by the parties to the arbitrament of the engineer and each of them is bound by his conclusion. Whether the plaintiff could have been required to remove all the earth and rock in the cut at sixty-one cents a cubic yard under the contract, and whether he was entitled to the additional compensation for “ two-man stone ” unless such material was required by the company were questions necessarily referable to the arbitrator under the terms of the contract, and we are not at liberty to attribute a fraudulent motive to the arbitrator merely because he reached a decision adverse to the understanding of the contract which the appellant has. The case is not distinguishable from others in which the decision has been adverse to the contention of the appellant.

The judgment is, therefore, affirmed.


text:
    Birmingham Iron Foundry, Appellant, v. Regnery.

      Promissory notes — Indorsement—Descriptive word added to signature — • Affidavit of defense.

    In an action against an indorser of a promissory note made by a corporation, where it appears that the defendant, who was the president of the corporation, indorsed the note with his signature followed by the word “Prest.,” the defendant is not concluded underlie Act of May 16, 1901,¡sec. 20,)?. L. 194,)from denying his personal liability, and showing by parol evidence that the plaintiff acquired the note as the undertaking of the corporation making it, and had consented to, acquiesced in, and recognized the indorsement thereupon as that of the company through its president, the defendant.
    Argued Dec. 7, 1906.
    Appeal, No. 228, Oct. T., 1906, by plaintiff, from order of C. P. Northampton Go., June T., 1906, No. 21, discharging rule for judgment for want of a sufficient affidavit of defense in case of Birmingham Iron Foundry v. James Regnery.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit on a promissory note.
    Scott, J., filed the following opinion:
    This action is instituted by the payee against indorser, upon a promissory note of which a copy follows :
    “1445.00. Catasauqua, Pa., March 16,1905.
    “ Three months after date we promise to pay to the order of Birmingham Iron Foundry, Four Hundred Forty-five dollars at the National Bank of Catasauqua, without defalcation, value received.
    (Signed) “ Catasauqua Rubber Company oe Penna.
    “Wm. W. Wilson
    “Secy, and Treas.
    (Endorsed) “ Jas. Regnery Prest.”
    Prior to the Act relating to Negotiable Instruments, May 16, 1901, P. L. 194, this irregular indorsement by the president of the rubber company must have been taken as creating the liability of second indorser, in the absence of competent written evidence of a different contractual relation: Eilbert v. Finkbeiner, 68 Pa. 243. By the provisions of that statute, however, he is now responsible to the payee: Sec. 64 (1). This liability is, prima facie at least, personal and individual, as no principal is designated : Sec. 20. An antecedent or preexisting debt constitutes a valuable consideration : Sec. 25.
    The only matter interposed as a defense which invites discussion, is the suggestion contained in the second paragraph of the supplemental affidavit, that the plaintiff knew James Regnery was the president of the Catasauqua Rubber Company, “ and that when he endorsed his name as President on said note it was known to the plaintiff that it was a restrictive endorsement, and was not intended to bind the endorser individually.”
    That part of the Act of 1901 which is pertinent to the present contention provides (sec. 20, P. L. 194) that “. . . . the mere addition of words describing him as agent or as filling a representative character, without disclosing his principal does not exempt him from personal liability.”
    This is but a codification of the existing law : Sharpe et al. v. Beilis, 61 Pa. 69; Eaton & Gilbert’s Com. Paper, p. 83. The liability is not absolute and conclusive, beyond the admissibility of parol proof otherwise respecting the intention between the immediate parties or any holder with knowledge of it: Seyfert, McManus & Co. v. Lowe, 7 W. N. C. 39; Wanner v. Emanuel’s Church, 174 Pa. 466; DeRoy v. Richards, 8 Pa. Superior Ct. 119. The phraseology of the statute itself implies that. Such evidence is not open to the objection that it is within the rule of contradicting or reforming a written indorsement: Barclay v. Pursley, 110 Pa. 13. Eaton & Gilbert in their commentary upon the Negotiable Instruments Law as now codified in many states (p. 93 et seq.) discuss these propositions at length. I need not pursue the subject further.
    It may be improbable that the payee would have accepted this note with knowledge that the sole indorsement was intended to be the obligation of the corporation maker, which would add to it nothing of value. But if a defendant makes affidavit to a substantial defense, it is sufficient to prevent summary judgment. Now, October 1, 1906, rule discharged.

      February 25, 1907:

      Error assigned was the order of the court.

      E. W. Edgar, for appellant.

      H S. Cavanaugh, with him Edward Harvey, for appellee.
   Opinion by

Rice, P. J.,

It is vigorously contended by the appellant’s counsel that the legislature, in enacting the negotiable instruments law, intended to prescribe fixed rigid rules by which negotiable instruments shall be interpreted and the rights and liabilities of the parties thereto determined ; that it is more than a mere codification of existing law, and was intended to be a complete system in itself. However true this may be as to some, or even most, of its provisions, it cannot be accepted without qualification in the construction of sec. 20, which reads: “ Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized, but the mere addition of words describing him as an agent, or as filling a representative character without disclosing his principal, does not exempt him from personal liability.” The last clause, in terms at least, is simply declaratory of the established law; it introduces, no new rule, and the rule that it does embrace is obviously not a complete statement of the law whereby the question of the personal liability of one who signs in the manner described may always be determined. The “ mere ” addition of certain words will not exempt from personal liability, but the statement of the law in this form, instead of in the form of an affirmative declaration that doing this or that shall create a personal liability, indicates that the legislature did not intend to establish a fixed and rigid rule to be applied without regard to other facts, and particularly the intention of the parties to the instrument. The words imply that a signing in the manner described, taken in connection with other facts, may exempt from personal liability to the payee in the instrument. As there is nothing in the context to show the conditions under which there will be such exemption, resort must necessarily be had to the authoritative decisions in which such conditions are described. Presumably, the legislature did not intend to abrogate the law, which, under the decisions cited in the opinion of the learned judge below, was applicable to such a state of facts as is set forth in the original and supplemental answers. The material clause of the supplemental answer is quoted in his opinion, and in connection with that should be read the explicit averment of the original answer that the plaintiff took, received and acquired the note upon the credit and as the undertaking of the ■Catasauqua Rubber Company, and consented to, and acquiesced in,' and recognized the indorsement thereupon as that of the said company through its president, the defendant. The fact that the construction contended for by the appellee’s counsel would give the instrument no additional value by reason of the indorsement would properly be considered in determining as to the truth of the appellee’s averments. Upon the trial of the Gase it would be a reason for scrutinizing the testimony with care. But whatever doubt may be created as to the defendant’s allegation by this construction, it would not be sufficient to warrant us in holding that the affidavits taken together are insufficient to prevent summary judgment.

Appeal dismissed at the appellant’s costs, without prejudice, etc.


author: Per Curiam,

text:
    Stiles, Appellant, v. Easton National Bank.

      Will — Legacy—Trusts and trustees — Vested and contingent estates.

    Testator by his will gave a life estate in certain stocks to his son, and appointed a trustee and a guardian for him. By a codicil testator provided as follows: “That the said trustee and guardian shall upon my said son having completed his collegiate and professional studies, and upon his being admitted .to the lawful practice of any of the liberal professions, in the event of his selecting such profession as his calling in life, or upon his completion of his term of apprenticeship to a mechanical trade or art, in the event of his selecting such as his calling in life, or upon the completion of his preparatory term of service as a merchant, in the event of his selecting the calling of a merchant as his calling in life, but in no event before he shall have arrived at the age of twenty-one years, deliver over to my said son, absolutely, the following named shares or stocks or the residue and remainder of them that may be left after the full performance of the charges and trusts mentioned, described in the aforesaid will concerning the disposition of the said stock or shares of incorporated companies in order to defray the educational expenses of my said son; all the said enumerated stocks or shares of stock,, and none other shall be the funds which is to vest in the said guardian and trustee for the benefit of my said son for performance of the said charges and trusts and according to the provisions and directions of this codicil shall vest absolutely in said son and his lawful issue. In the event of my said son dying before he arrives at the age of twenty-one years, or in the event of his dying without leaving lawful issue, then and in that case all the estate, right and interest that should have vested or did vest in my said son shall revert to. my lawful heirs.” After the son reached the age of.twenty-one he borrowed a sum of money from a bank, and his guardian and trustee, with the son’s consent and at his request, assigned to the bank as collateral security certain of the stock mentioned in the codicil which stood in the name of the guardian and trustee as such. Held, that the stock vested wholly in the son, and that the transfer to the bank was valid.
    Argued Dec. 7, 1906.
    Appeal, No. 233, Oct. T., 1906, by plaintiff, from judgment of C. P. Northampton Co., April T., 1905, No. 7, for defendant non obstante veredicto in case of Harry G. Stiles, Guardian, v. Easton National Bank.
    Before Rice, P. J., Porter,, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Appeal from judgment of justice of the peace.
    Before Scott, J.
    At the trial the court directed a verdict for plaintiff, and the jury thereupon returned a verdict for $67.20. Subsequently on motion for judgment non obstante veredicto, Scott, J., filed the following opinion :
    There are two rules here for disposition, first, when a verdict was directed for the plaintiff, the question of law was reserved, according to the usual practice, whether there was any evidence in the case which entitled him to recover; secondly, following the verdict, after a request for binding instructions, motion is made by defendant for judgment upon the undisputed evidence, non obstante veredicto, pursuant to the provisions of the Act of Assembly, April 22,1905, P. L. 286.
    This second rule is predicated upon the proposition that if it be assumed the plaintiff’s proof being mainly documentary and at least undisputed, entitled him at that point either to submit the case, or to demand binding instructions, yet the evidence produced by the defendant, consisting of (1) written documents, (2) admission of record, (3) the testimony by cross-examination of the cestui que trust as the person for whose benefit this suit is prosecuted requires judgment now for him. If the oral evidence came from one, other than a party to the action, the question of his credibility would not be for . the court. But the plaintiff has no legal cause of complaint that his sworn admissions are accepted for verity; and the defendant cannot object that his statements ought to pass under consideration by a jury. He is not bound by them, but he cannot assume the facts to be different without evidential proof otherwise ; and they stand without impeachment. The whole subject-matter is for the court alone: Dalmas v. Kemble, 215 Pa. 410.
    It will be necessary to precede this discussion by some narrative of
    THE EACTS.
    1. James Frey of Lehigh county died in April, 1875; his will and codicil were in that same month admitted to probate. The former was executed February 1,1870; the latter May 17, 1872. Provisions, too elaborate for particular mention here, were made creating a trust fund for the benefit of a natural son, the beneficial plaintiff who was then an infant, and is now thirty-seven years of age. The late Judge Albright, then an attorney at law, was appointed trustee and guardian. He assumed the appointed duties and continued his administration until December 15, 1884, then resigned and Dr. A. It. Horne was designated his successor by the orphans’ court. He died December 23, 1902, and Mr. Stiles succeeded him.
    2. By the terms of the will, “ all the stocks and shares in banks, railroad and other incorporated companies,” of the testator at his death were to stand in the joint names of his executors and the trustees or their successors, and the net dividends and income paid to the guardian and trustee, who was to expend them as there expressed for the maintenance and education of his ward, this cestqui que trust, except that the sum of 160.00 was to be paid to his mother annually for that purpose until the son was seven years old. Change was made by. the codicil in these provisions and upon certain conditions, the nature of which must be left for subsequent reference. Bank shares, specifically and definitely mentioned were to be held in trust and then delivered. Among these was enumerated ten shares of the Easton National Bank, dividends upon which are the subject of present dispute.
    3. On June 8, 1876, the Easton National Bank transferred these ten shares held by the testator to “William Fry and Solomon Fry, Executors of the last Will and Testament of James Fry, deceased, and Edwin Albright, Guardian and trustee of James Franklin Fry, under said last will in trust for the uses and purposes therein declared,” by the issue of a new certificate (No. 935) ; and on the stub of its stock ledger this full title of the holders as given above was noted at length. The interest therein held by the guardian was assigned and set over by him to his successor in the trust (Dr. A. R. Horne) January 29, 1885. The bank then made the following entry on the stock ledger, “ December 15, 1884, Edwin Albright on his own petition was discharged by the orphans’ court of Lehigh county, Pennsylvania, and Rev. A. R. Horne substituted as guardian of James Franklin Fry, and on notification same was changed on our books.”
    4. James Franklin Fry, the cestqui que trust, was twenty-one years old on January 18, 1890. Eleven days afterwards (January 29,) he borrowed $500 from the Allentown National Bank upon a promissory note. For this the guardian and trustee, with the ward’s knowledge, approval and consent, assigned to it the ten shares of Easton National Bank stock, expressed in writing as absolute but collateral in fact; executing for the purpose a power of attorney (Ex. 10) witnessed by James Franklin Fxy himself, under which the stock was transferred on the books of this defendant by a new certificate issued to the Allentown National Bank, January 30,1890. (Ex. 11.) The money thus borrowed was used to purchase vinegar with which he opened business in Philadelphia; that venture terminated unsuccessfully in about two months.
    The Allentown National Bank subsequently declined to carry the loan and renew the note. The money to repay it was then borrowed from the Northampton County National Bank, for which this stock was again pledged by delivery of the certificate which had been issued to the former; the power of attorney to transfer being executed in blank by R. E. Wright, President of the Allentown National Bank. James Franklin Fry gave for this loan his own note to the order of A. R. Horne which eventually reached payment there February 5, 1896, by a similar note (Ex. 12) providing that the collateral (certificate for the ten shares of Easton National Bank) should be sold at either public or private sale without prior demand or notice upon default in payment of the obligation at maturity; indorsed by A. R. Horne “ Pay to the order of Florence S. Miller ” from whom the money was then received. This note was not paid, and in 1908, the stock so pledged was sold at public sale in the city of Easton, and by virtue of the aforesaid power of attorney was transferred July 10, in this last mentioned year, on the books of the Easton National Bank to Elizabeth F. Merrick, the present holder.
    5. The defendant received notice May 15, 1903, from Harry G. Stiles, of his appointment as successor in the trusts to A. R. Horne, and a demand for the 'payment of dividends of this stock. Afterwards, and before this suit dividends were declared, amounting to $60.00.
    6. James Franklin Fry was six years of age when the testator died. He attended a country school until ten years old; then a preparatory school; entered Muhlenberg college and remained a short time until sixteen or seventeen years of age ; started with a course in a business college, and left in two months. He then became clerk in a hardware store for a short time; studied medicine and soon abandoned it for an attempt to learn with a tobacconist how to make cigars; continued there three months. After that came the fruitless effort, as soon as he reached maturity, to establish a vinegar trade in Philadelphia, to which reference has already been made. He was the owner of a news-stand and sold papers and periodicals for nearly a year with a capital of $150, a bartender for several years and finally undertook to work on a farm, at which he has been engaged four years.
    BISCUSSION.
    The relevancy to this controversy of the statement of facts in the last paragraph, is referable to the terms of the testator’s codicil, in which he revokes certain provisions of the will, which may be found to be inconsistent with it, and they are as follows:
    “ Whereas, I did give and bequeath to my said son James Franklin, a life estate in certain stocks, now
    * * * * * * * *
    “ The said trustee and guardian shall upon my said son, James Franklin having completed his collegiate and professional studies and upon his being admitted to the lawful practice of any of the liberal professions, in the event of his selecting such profession, as his calling in life; or upon his completion of his term of apprenticeship to a mechanical trade or art, in the event of his selecting such as his calling in life, or upon the completion of his preparatory term of service as a merchant, in the event of his selecting the calling of a merchant, as his calling in life; but in no event before he shall have arrived at the age of twenty-one (21) years, deliver over to my said son James Franklin absolutely, the following named shares of stocks, or the residue and remainder of them that may be left after the full performance of the charges and trusts, mentioned and described in the aforesaid will concerning the disposition of the said stocks or shares of incorporated companies in' order to defray the educational expenses of my said son, as follows, to wit: — One Hundred (100) shares of the Allentown National Bank; Seventeen (17) shares of the Catasauqua National Bank; Ten (10) shares of the Easton National.Bank and Ten (10) shares of the Doylestown National Bank, all the said enumerated stocks or shares of stocks and none other shall be the funds which are to vest in the said Guardian and Trustee for the benefit of my said son James Franklin, for performance of the said charges and trusts and according to the provision and directions of this codicil, shall vest absolutely in said son arid his lawful issue. In the event of my said son James Franklin dying before he arrives at the age of twenty-one years, or in the event of his dying without leaving lawful issue, then in that case all the estate, right and interest that should have vested or did vest in my said son James Franklin, shall revert to my lawful heirs. Should however my said son, having arrived at the age of twenty-one years, leave a widow surviving him and no lawful issue, then and in that case the said estate shall be distributed in accordance with the provisions of the intestate laws of the State of Pennsylvania, in so far as relates to the said widow, and the residue and remainder if any there be, shall revert to my legal heirs.”
    In paragraph “ K ” of Item 3 in the will it was provided that if the income from the trust fund set apart was insufficient for the appointed purposes, a part of the principal might be used, if an application therefor was first made to the orphans’ court and approved.
    Under the proofs submitted in the plaintiff’s case, if the trust herein created was not terminated when the cestqui que trust arrived at the age of twenty-one years, or if the guardian was not to determine whether he had complied with the conditions, notice of it appeared upon the certificate of the stock now in question and upon the ledger of the bank. The pledge took no title which it could hold against a bill to compel surrender, and the defendant’s transfer agent could not divest that of the trustee or his successor: Bayard v. Farmers’ & Mechanics’ Bank, 52 Pa. 232; Wood’s App., 92 Pa. 379; Clemens v. Héckscher, 185 Pa. 476.
    Whether responsibility attaches to the bank for permitting the transfer is a different question : Act of May 23,1874, P. L. 222; Stockton et al. v. Lehigh Coal & Nav. Co., 9 W. N. C. 110; but this suit is for unpaid dividends now retained by it after demand made and the present owner of the certificate has intervened.
    The defendant by way of discharge of its prima facie obligation, maintains,
    (1) That the codicil vested an absolute estate in the legatee when he became twenty-one years old; that the conditions expressed marked the limitation of time only when possession of the corpus should be delivered into his hands; and that the trustee was sole judge of their fulfillment.
    (2) If it be conceded that those conditions were precedent to the vesting of the estate absolutely in him and dependent upon judicial determination, they have been performed.
    Primarily, it may be observed that under the will the certificates for all shares of stock, as evidence of title, were to be held in the joint names of the executor and guardian or their successors. This was the form in which the certificate for the ten shares of Easton National Bank Stock, now in controversy, wás issued to them after the death of the testator.
    When Judge Albright resigned from the trust he transferred to Dr. Horne the interest only which he then had in this stock as guardian. The pledge by the latter to the Allentown National Bank, January 29, 1890, with power of attorney, to assign the same was executed by him alone, and upon delivery of this paper to the Easton National Bank, it was treated as passing the whole title, and the next day the certificate was issued to the Allentown National Bank. If the original trust continued as created, no title was vested in the pledgee by the act of one of three joint trustees, and this defendant had knowledge that such authority was absent. It does not appear here whether the executors of the testator had in 1890, fully administered their trust, and been discharged, or no successors appointed. But in the paragraph of the codicil which I have set forth at length, the testator after the enumeration of specific stocks which were to be delivered to the ward under certain circumstances and among which these shares in dispute were included, declared that they “shall be the funds which are to vest in the said guardian and trustee for the benefit,” etc. Whatever might be said with respect to other stocks not herein specifically designated, it is not to be doubted, that the guardian alone had separate and exclusive title to the trust fund, in these ten shares of the Easton National Bank, until or unless they vested absolutely in the cestqui que trust.
    It cannot be judicially held, under the evidence presented to me, that James Franklin Fry had complied, either on January, 1890 when this certificate was transferred to the Allentown National Bank (or subsequently) with the conditions written in the codicil, if they be precedent to termination of the trust and vesting in him an absolute estate. The last paragraph of my 'statement of facts needs the addition of but little comment.
    The testator intended and so expressed his purpose that there should be admission to a liberal profession or some “ completion ” in apprenticeship to a mechanical trade or art or preparatory term of service necessary to acquire practical knowledge of a merchant’s business. This was also originally contemplated when the will was made. (Item 3. Par. G.) “He had been only dropping buckets into empty wells and growing old in drawing nothing up.”
    But if the testator intended the estate to vest absolutely in the ward, at his majority or at any other subsequent period, and the conditions imposed were only limitations to define the time when the securities should be delivered into his corporal possession, the arbiter of that question was the guardian and trustee (Lewin on Trusts, p. 613, Flint’s Notes) unless restrained by the prior provision in the will that required application to the court. He exercised his judgment by permitting the ward to make the loan of f 500 upon the pledge of this stock in dispute and thus paid over a part of the corpus. He may have had satisfactory proof for such action which is not before me. The cestqui que trust was then of age; the obligations were given by him; the certificate assigned by his consent, and he got the money. If the trustee had declined to comply with a demand of the ward who had then shown that he was entitled to absolute possession of the estate, I do not mean to imply that the court would have been without power, in appropriate proceedings for that purpose, to supervise his discretion and compel delivery of the stock: Stewart et al v. Madden, 153 Pa. 445.
    This was not a spendthrift trust, and the beneficiary is sui juris. When there is no further purpose to serve or estates in remainder to protect, even an active trust will be deemed executed, and will not be continued for the mere benefit of a trustee: Ogden’s Appeal, 70 Pa. 501, and cases cited.
    The essential matter to be determined, therefore, is the character of the interest or estate intended by the codicil for the ward in the stocks particularly enumerated.
    If we omit from present consideration recital of the conditions expressed, the language imports that it is vested and absolute. “The said trustee and guardian shall .... but in no event before he arrives at the age of twenty-one years, deliver over to my said son James Franklin absolutely the following named shares or shares of stock. . . . All the said enumerated stocks .... shall vest in the said guardian and trustee for the benefit of my said son James Franklin for performance of the said charges and trusts according to the provisions and directions of the codicil. (They) shall vest absolutely in said son and his lawful issue.” If death occurs before he is twenty-one “ or in the event of his dying without leaving lawful issue,” then the estate is to revert to the testator’s lawful heirs. ' Where the- contingency of death is provided or “ death without lawful issue,” as the event upon which there is a limitation over, it will be construed to mean that occurrence before the death of the testator, without clear evidence of a different intent: Micldey’s App., 92 Pa. 614; Stevenson v. Fox, 126 Pa. 668; Robinson’s Est., 149 Pa. 418; Coles et al. v. Ayres, 156 Pa. 197. If the intention .in such cases is doubtful the construction is in favor of the first taker, as the primary subject of the testator’s bounty: Fitzwater’s Appeal, 94 Pa. 141; Jackson’s Estate, 179 Pa. 77. The legatee was not a legitimate son and heir, but his paternity was recognized and declared. He was principally, almost entirely, the sole object of these elaborate testamentary provisions. But this does not solve the dispute, for the terms upon which the bequest is predicated are significant. Must the legacy be regarded as contingent? In doubtful cases it will be treated as vested: McClure’s Appeal, 72 Pa. 414.
    Where the contingency is attached to the legacy itself, so that it cannot take effect unless conditions precedent are performed, it is contingent. In that event it is not material that there is no limitation over; it goes into the residue: Gilliland, Executor, etc., v. Bredin, 63 Pa. 393. If the contingency is annexed to the time of payment, the legacy is vested. This distribution is always subject to be controlled by any clear intention of the testator otherwise. Tested by the application of these principles alone it might possibly be held that the legacy was contingent, and did not vest absolutely. But there is one exception to the rule that when the time is annexed to the gift, and not its payment, it becomes contingent. It is stated thus in 2 Williams on Executors, 1233 “ where a testator bequeaths a legacy to a person at a future time, either gives him the intermediate interest (income) or directs it to be applied for his benefit, the court there considers the disposition of the interest to be an indication of the testator’s intention that the legatee should at all events have the principal, and on this ground holds such legacies to be vested.” Vide also the cases asserting this proposition in White and Tudor’s Lead. Cas. in Equity, vol. 2, p. 306 (6th Eng ed.), notes to Ashbourner v. Macguire.
    Where the income is given until the event happens upon .which the legacy would become absolute, an immediate gift is presumed, because, as stated by Sir John Leach, Master of the Rolls, in Vawdry v. Geddes, 1 Russ. & Mylne, 203, for the purpose of interest the particular legacy is to be separated from the bulk of the testator’s property. This doctrine is accepted in Eldridge v. Eldridge, 63 Mass. 516, and recognized in Lamb v. Lamb, 8 Watts, 184, when the income ad interim goes solely to the legatee and not to him jointly with others ; and follows by analogy the line of decision that an indefinite gift of the income without limitation over, invests the beneficiary with title to the corpus. To the strength of these artificial rules and presumptions in construction may be added some other considerations.
    The testator appointed by his will the executors and guardian joint trustees of the whole fund. By the codicil he separated the trust estate and designated particular stocks which were to vest in the guardian alone for execution. This separate trust he does not limit over to anybody, if the conditions should not be performed; other disposition is made only upon the ward’s death without lawful issue.
    The provision in the will for application to the court for authority to convert any part of the corpus for education and maintenance has no relation to the purpose intended by the codicil; is not inconsistent with it, and the testator has provided for delivery of the stocks specifically set apart “ or the residue and remainder of them that may be left ” after performance of the charges and trusts declared in the will.
    If the trustee is invested with the discretion to determine the time when the principal shall be paid over, either expressly or by necessary implication, the character of the estate in the cestqui que trust is not changed: Millard’s Appeal, 87 Pa. 457.
    When, in such a case, there is no limitation over the only persons interested after the ward passed his minority were the guardian and himself. They together had the whole legal and beneficial interest; and a successor in the trust, if yet unexecuted, under the will, has no legal grievances against the exercise of discretion by his predecessor who delivered absolutely the securities named in the codicil. I am referred to a decision of Judge Trexler, in which the plaintiff maintains his present contention is sustained. I have read in that case the testimony and opinion of the court. No such question was presented or discussed. Judgment certainly was entered against the Allentown National Bank for dividends, but the conclusions upon which that judgment was supported I have also here adopted.
    February 25, 1907 :
    Now, November 5, 1906, rule absolute and judgment is directed to be entered for the defendant non obstante veredicto.

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

      Harry A. Cyphers, with him James L. Marsteller, for appellant.

      Aaron Goldsmith, with him Kirkpatrick $• Maxwell, for appellee.
   Per Curiam,

We are of opinion that his case was correctly decided, and that all that need be said in vindication of the judgment is contained in the opinion of the learned judge below.

Judgment affirmed.